[Avodah] Geirut

[Chana Luntz]

RAF writes:

> I was responding to your original question and anticipating 
> your follow up  question, where you stated that the power of apotropos
comes 
> from hefqer beit  din hefqer (HBDH) only. In fact, what I wrote was
based on 
> the same sugya.  However, as I am in the process of moving, I have not
had the 
> chance to  review that daf. IIRC, Rav Na'hman's position is not based
on HBDH.

I am afraid you are going to be less cryptic here for me to understand.
How is Rav Na'hman's opinion relevant here and in what way is it not
based on HBDH?

> In addition I wrote that, if you would claim that the 
> apotropos' power is  limited, as according to one view in the Talmud,
higdilu 
> yekholim lim'hot on  the apotropos carving up of the estate, anyway,
the same is 
> true of a qatan  who converted 'al da'at beit din. Hence, the
apotropos exercising the 
> orphans' vacrious da'at is similar to beit din doing so in a
conversion of a 
> minor.

Agreed, which is why I would never claim that.  I can see a lot of
similarities, including this right to protest (at least according to one
opinion) on gadlus.  And nevertheless, Tosphos et all claim that the
basis for the apitropos' rights to do anything is Hefker beis din
hefker.  Note by the way, that under the principle of zaken adam shelo
befanav, the person on finding out (having daas) can also protest, and
then the gift or whatever it is is not ultimately chal.  That is
therefore what you would expect from zakin adam shelo befanav and
therefore the right of the katan to reject the gift given to him of
Jewishness on majority is not really so surprising.  

> However, you did write that you are looking for non monetary 
> applications of vicarious da'at. I am afraid that it will be hard to
find, if 
> there are any  at all, but do care to point out that we relate to
giyur 'al 
> da'at beit din somewhat like to monetary cases, as we can see from the

> statement that it is  based partly on zakhin leadam shelo befanav.

Again agreed.  But this all helps me, not you.  The dispute, remember,
is not over whether beis din has the power to perform gerus on a katan.
Nor that it is based partly on zakhin leadam shelo befanav (which is
where somebody does something for somebody else which is a benefit for
the first person without his knowledge).  The dispute was whether KOM is
needed for that geirus as a katan. KOM, whatever it is, is something
that is clearly impossible to perform without daas.  One option you
proposed was no KOM is needed because it is not possible for a minor to
have daas (and therefore we don't learn the adult case from the minor
case as we don't learn efshar from ein efshar).  But the other option
you proposed, which is what we are discussing here, was that there is
indeed KOM but that this KOM occurs by the mechanism of beis din or the
apitropos appointed by beis din (the adoptive parents) substituting
their daas for that of the katan.

I said that, as far as I am aware, the only case in which a beis din or
an apitropos can substitute its daas for that of a katan is in a
monetary case, and the mechanism by which this is achieved is generally
understood to be hefker beis din hefker.  KOM, whatever it is, the one
thing it is clearly not is a form of property that can be transferred to
the beis din or apitropos, so that they can then have the correct daas
in connection with it, so there is no way of applying hefker beis din
hefker to the situation.  So in order to show me that there is a case
that is remotely like the one being proposed, you need to find me a case
where beis din or an apitropos is permitted to substitute their daas for
the absent daas of the katan and either hefker beis din hefker does not
work (meaning we are not talking about property) or at the very least
the rishonim reject hefker beis din hefker as the mechanism applying in
such a case, and provide an alternative mechanism explaining how such a
daas is substituted, and such reasoning can then be applied to the case
of a katan being converted.  If we can't find such a case, that points
towards such a novel explanation of what is going on (ie there really is
KOM, just by the substituted daas of the apitropos or beis din) not
being a true explanation.  That is further supported by the fact that
Tosphos et al needed to revert to hefker beis din hefker to explain the
general apitropos case, when, according to you, they could have found a
more generalisable principle to cite which would have allowed us easily
to slot in the katan being converted case.  Without all that, the idea
that there is really KOM at the time of the conversion seems pretty
untenable, and the only remaining options are RMB's - actually the KOM
occurs at the time of gadlus (which I discuss elsewhere why this does
not seem to fit the sources) or that KOM, at least for a katan, is not a
necessary requirement for conversion.
 
> KT,
> -- 
> Arie Folger
> http://www.ariefolger.googlepages.com

Shabbat Shalom

Chana