Responsa for Gittin 103:28
Teshuvot Maharam
Q. A paid his taxes directly to the overlord of his town, independently of the rest of the community. The overlord, suspecting that A possessed much greater wealth than he usually professed to have, and being driven by a greed for money, arrested him without cause and later arrested his wife L. Before her arrest, however, and before the reason for these arrests became manifest, L helped Gershom, A's son by a previous marriage, to flee the domain of the overlord and thus escape from his clutches. Meanwhile, A was put to death in prison. The overlord posted guards in the town to make sure that A's children did not escape, and demanded a large sum of money from L. He further proposed that L merge her taxes with those of the community and that the latter jointly with L negotiate the new tax. When the community representatives asked as to the identity of the persons who would be expected to pay this tax, the overlord answered that everybody would pay it, the young and the old, the rich and the poor. The community representatives, then, strongly objected to the merger with L; whereupon the overlord agreed to negotiate with them separately. He levied a very heavy tax on the community, but this tax did not exceed the estimated value of the wealth of the community members. L was warned that should she prove to be stubborn and unyielding, she and A's children would be made to suffer the same fate as A. Finally the overlord came to terms with L and agreed to release her, and to return to her A's impounded valuables, for a ransom of six hundred and twenty pounds. To insure the payment of this ransom the overlord demanded as hostages one of L's children and one of A's children by his former marriage. Now Gershom, and A's other children by his former marriage, refuse to pay their part of the ransom money, and instead, wish to pay their part of the assessment on the community.
A. Gershom is not obliged to pay any part of the ransom money since he escaped before the overlord asked for such money. Although L engineered his escape, he is under no monetary obligation to her, since she merely did him a favor. However, if Gershom is to claim, as his share of the inheritance, part of A's valuables that have remained in town within the grasp of the overlord, he must pay a proportionate part of the ransom for such valuables. A's children by his former marriage must pay their part of the ransom money in proportion to their wealth. Even though they were not imprisoned, there is sufficient indication that the overlord intended to include them in the extortion. Thus, guards had been posted in town to watch them, and their lives had been explicitly threatened upon L's refusal to come to terms with the overlord. Moreover, had the overlord negotiated with L regarding only her personal possessions, he would not have demanded 620 pounds from her, knowing full well that she was entitled to receive from A's estate only her ketubah, and that such a sum was well beyond her means. The overlord did not demand from the community a sum greater than the value of all their wealth; therefore, it stands to reason that he was not entirely unreasonable in his demands upon L. We may assume with certainty that had L refused to pay the ransom, A's children would have been seized, and would have been killed or forcibly baptized. Had A's children protested against being ransomed, we would have paid no attention to them and would have effected their release even against their will, and then, we would have collected the ransom money from them; for we are obliged to ransom a Jew even against his will. Now, that A's children have not protested against the ransom, they must certainly contribute thereto in proportion to their wealth. Although their lives were threatened, and the talmudic law (B.B. 116b) would thus require that the amount of the ransom money should be calculated, one half equally for each person, and the other half in proportion to the individual's wealth, this law does not apply to our case. We know that the overlord was interested only in their money, not in taking their lives, as the whole trouble started because the overlord thought A to be very wealthy.
Q. L seized some of A's movables claiming that she seized them for the purpose of paying for her sustenance. Some of these movables were originally impounded by the overlord and were later returned to L. May A's heirs force L to render under oath an account of such valuables?
A. Movables impounded by an overlord are considered abandoned property (hefker), title thereto, passing to the first person who seizes them, since the original owner must have given up hope of retrieving them. Although owners do not usually abandon movables taken away by Gentile robbers (B.K. 114a), they do abandon these when impounded by the overlord of the town, since he is the undisputed master of the town and no one can restrain him. This was especially true in our case, since his claim was bolstered by false accusations. Therefore, L is under no obligation to give an account of the movables returned to her by the overlord. However, those movables which the overlord had returned to her, and which she gave to the overlord in partial payment of the ransom, should be credited pro rata to all those who are obliged to pay the ransom, since the valuables had been given to her in order to decrease the ransom for all parties involved. Furthermore, L is under no obligation to give an accounting of the other movables she seized (the movables that were not impounded by the overlord) as long as it is known that the value of such movables does not exceed the value of her ketubah. For whenever L demands her ketubah, she will have to take an oath regarding these movables; as long as she does not demand her ketubah, no oath can be imposed on her.
Q. Rabbi Kuzlan, a relative of R. Meir, declared that A had deposited money with him and had told him to give the money, after A's death, to R. Mushlin, A's brother, who had received instructions regarding its disposal. Rabbi Kuzlan, therefore, gave the money to R. Mushlin. The latter claims that he was instructed by A to give all the money to A's children by his former marriage. R. Liber Shamash, another relative of R. Meir, testified that A made the following declaration in his presence: "Half of all the ready cash I have here, and in the house of Rabbi Kuzlan, and in the settlement, was given to Gershom my son, and the other half to his two older sisters, and I have empowered my brother Mushlin thus to dispose of the deposit that is in the house." L, on the other hand, produced a document wherein it was written that A had obligated himself not to alienate any of his property and thus put it beyond his wife's reach. L, therefore, demands that R. Mushlin take an oath to support his assertions.
A. The testimony of R. Liber Shamash is of no consequence since a verbal admission of having given valuables to a certain person, is no proof that title to such valuables was actually transferred to that person. Therefore, R. Mushlin has no witness to support his assertions. Although heirs may not exact an oath from a trustee appointed by their father (Gitt. 52a), this rule applies only to the heirs, who are to inherit the property managed by the trustee; but, the heirs who, according to the assertions of the trustee, are not to receive any part of such property, may exact an oath from the trustee even though they are not positive in their claim that the trustee had wronged them. Therefore, L and her children may exact the oath from R. Mushlin. Moreover, even if R. Mushlin's assertions were true, A's gift to his children by his former marriage would be considered a gift causa mortis, since it was to be given to them after A's death. Since a widow and orphaned daughters are entitled to draw their sustenance from all causa mortis gifts, L and her daughters would be entitled to draw their sustenance, and L would be entitled to collect her ketubah, from the money in the hands of R. Mushlin, if no unencumbered assets remain of A's estate. L's daughters are entitled to receive their sustenance till their marriage, the expense to be born proportionately by A's heirs (out of their inheritance). At the time of their marriage they will be entitled to a dowry of one tenth the immovables of A's estate. L's son, however, must derive his sustenance from his own portion of the inheritance, and when it will all be consumed he will have to resort to charity.
Q. L, at the time of her arrest, hired an agent to manage A's estate, to collect debts and sell valuables, in order to raise money for the ransom. She agreed to pay the agent a large sum of money for his efforts. Furthermore, R. Mushlin claims to have incurred expenses in his efforts to save L and A's children.
A. Since L had a right to hire an agent (Gitt. 52a) and since she was in urgent need of help, the agent is entitled to receive adequate compensation for his efforts; the court is to determine what constitutes adequate compensation. The agent, however, is not entitled to receive anything above such amount, even though L had promised him much more, for wages and hire are subject to reassessment. If R. Mushlin's claim is disputed, he must take an oath to support it. L had no right to sell any part of A's estate unless such sale was made in the presence of a lay court. Therefore, the articles sold must be reevaluated by such a court. If the articles had been sold below such evaluation, the difference should be deducted from L's ketubah; but if the articles were sold above the estimated value, the difference should revert to the heirs.
Q. Upon her marriage, A's daughter by a former marriage was given by R. Mushlin, as part of her dowry, her share (one quarter) of the money originally deposited with Rabbi Kuzlan (see part 3).
A. L was entitled to collect a proportionate part of her ketubah exclusively from this money; now that this money had been given to the husband of A's daughter, L may no longer collect that part of her ketubah. Therefore, R. Mushlin has directly damaged L's interests and must make good, out of his own pocket, the loss thus sustained by L.
Q. Are the heirs permitted to pay L her ketubah by transferring to her debts due from Gentiles, if she objects to such manner of payment?
A. Debts due from Gentiles can not be directly assigned to a third person. Even though there is an indirect method of assigning such debts, a woman may refuse such manner of payment since even a creditor or one who has suffered damage may refuse to receive payment in such manner. Moreover, a woman is not expected to suffer the hardships and indignities entailed in collecting debts from Gentiles. Therefore, L may insist on being paid only in nonencumbered valuables.
Q. During the perilous period of the persecution by the overlord, a Gentile who owed ten marks to A came to L and asked her to release him from this debt. L, fearing lest refusal would aggravate the situation, said to the Gentile: "I shall never demand this money from you". A's heirs claim that this release caused them an unnecessary loss of ten marks.
A. Neither according to Jewish law nor according to the law of the land does L's statement release the debtor from his obligation to A's heirs. But, if according to the law of your particular town this debt is considered cancelled, L is to be held responsible for the amount the debt was worth at the time of the release. Surely the debt was not worth very much at a time when the creditor was in mortal danger! However, if L released the aforementioned debtor, as a safety measure, and as a contributing factor to gain relief, the loss must be born by L, and the heirs that were in town at the time, pro rata.
Q. A had deposited one pound with a burgher. After L came to terms with the overlord, the burgher returned the pound. L and the heirs who were in town during the period of danger, claim that it would have been impossible to collect the pound from the burgher if the settlement had not been effected with the overlord, while the other heirs claim that the burgher would have returned the money in any event.
A. If L is not able to take an oath to the effect, that (she is certain that) the deposit would in all probability have been lost if not for the settlement with the overlord, no ransom money can be collected from this deposit.
Q. The youngest heir received for his share debts due to the estate. The market value of these debts was much less than their face value. Since every heir must contribute to the payment of L's ketubah in proportion to the amount of money, he or she, inherited from A's estate, what amount is the youngest heir to contribute?
A. He must contribute in proportion to the market value of the debts.
Q. Two notes of indebtedness were held in A's room which had been sealed up by the overlord (at the time of the extortion). Are the investments attested to by these notes, subject to the payment of the ransom money?
A. These investments are in the same category as the money and the valuables that were held in the room; for had no agreement been reached with the overlord, he would have taken away the notes of indebtedness, and the investments would have been lost. Even when the notes are presented to (Gentile) debtors, they are often unwilling to repay their debts; when such notes are lost, one can not expect repayment. Moreover, the overlord would have collected these debts for himself.
Q. L took from Gershom's share debts to the value of one hundred and seventy pounds. Now that Gershom is not required to pay any ransom money, how can he collect his money?
A. Gershom may charge this amount to his sisters' shares of the ransom money and collect it from them, or he may charge it to the payment of L's ketubah. L does not have to collect her ketubah, or the ransom money, directly from the orphan girls; she may collect it from their money in the hands of R. Mushlin. The latter has no right to give the money he holds, to anyone until L receives all that is due her from the heirs, both male and female, each one according to his share.
If R. Mushlin has already given this money to the heirs, or should he in the future give it to them in order to put obstacles in L's way, and thus make it difficult for her to collect her money, then R. Mushlin is to be held responsible for such payments, and is to pay L out of his own pocket.
R. Meir adds: "You have protracted your case and have burdened me beyond endurance. I cannot bear your sending me any further inquiries regarding this case. It is obvious that the trustees are only interested in causing annoyance, vexation and protraction. From now on judge any case that may come before you, yourselves!" R. Meir further adds: "At last it has become apparent, it is sad to reflect, that all these cunning machinations are employed only to harass the widow, to procrastinate, and to deprive her of her ketubah; but you are merely succeeding in troubling and harassing me to no purpose."
These Responsa are addressed to "My relatives Rabbi Elijah and Rabbi David".
SOURCES: Am II, 19, 20, 21, 22, 23.
A. Gershom is not obliged to pay any part of the ransom money since he escaped before the overlord asked for such money. Although L engineered his escape, he is under no monetary obligation to her, since she merely did him a favor. However, if Gershom is to claim, as his share of the inheritance, part of A's valuables that have remained in town within the grasp of the overlord, he must pay a proportionate part of the ransom for such valuables. A's children by his former marriage must pay their part of the ransom money in proportion to their wealth. Even though they were not imprisoned, there is sufficient indication that the overlord intended to include them in the extortion. Thus, guards had been posted in town to watch them, and their lives had been explicitly threatened upon L's refusal to come to terms with the overlord. Moreover, had the overlord negotiated with L regarding only her personal possessions, he would not have demanded 620 pounds from her, knowing full well that she was entitled to receive from A's estate only her ketubah, and that such a sum was well beyond her means. The overlord did not demand from the community a sum greater than the value of all their wealth; therefore, it stands to reason that he was not entirely unreasonable in his demands upon L. We may assume with certainty that had L refused to pay the ransom, A's children would have been seized, and would have been killed or forcibly baptized. Had A's children protested against being ransomed, we would have paid no attention to them and would have effected their release even against their will, and then, we would have collected the ransom money from them; for we are obliged to ransom a Jew even against his will. Now, that A's children have not protested against the ransom, they must certainly contribute thereto in proportion to their wealth. Although their lives were threatened, and the talmudic law (B.B. 116b) would thus require that the amount of the ransom money should be calculated, one half equally for each person, and the other half in proportion to the individual's wealth, this law does not apply to our case. We know that the overlord was interested only in their money, not in taking their lives, as the whole trouble started because the overlord thought A to be very wealthy.
Q. L seized some of A's movables claiming that she seized them for the purpose of paying for her sustenance. Some of these movables were originally impounded by the overlord and were later returned to L. May A's heirs force L to render under oath an account of such valuables?
A. Movables impounded by an overlord are considered abandoned property (hefker), title thereto, passing to the first person who seizes them, since the original owner must have given up hope of retrieving them. Although owners do not usually abandon movables taken away by Gentile robbers (B.K. 114a), they do abandon these when impounded by the overlord of the town, since he is the undisputed master of the town and no one can restrain him. This was especially true in our case, since his claim was bolstered by false accusations. Therefore, L is under no obligation to give an account of the movables returned to her by the overlord. However, those movables which the overlord had returned to her, and which she gave to the overlord in partial payment of the ransom, should be credited pro rata to all those who are obliged to pay the ransom, since the valuables had been given to her in order to decrease the ransom for all parties involved. Furthermore, L is under no obligation to give an accounting of the other movables she seized (the movables that were not impounded by the overlord) as long as it is known that the value of such movables does not exceed the value of her ketubah. For whenever L demands her ketubah, she will have to take an oath regarding these movables; as long as she does not demand her ketubah, no oath can be imposed on her.
Q. Rabbi Kuzlan, a relative of R. Meir, declared that A had deposited money with him and had told him to give the money, after A's death, to R. Mushlin, A's brother, who had received instructions regarding its disposal. Rabbi Kuzlan, therefore, gave the money to R. Mushlin. The latter claims that he was instructed by A to give all the money to A's children by his former marriage. R. Liber Shamash, another relative of R. Meir, testified that A made the following declaration in his presence: "Half of all the ready cash I have here, and in the house of Rabbi Kuzlan, and in the settlement, was given to Gershom my son, and the other half to his two older sisters, and I have empowered my brother Mushlin thus to dispose of the deposit that is in the house." L, on the other hand, produced a document wherein it was written that A had obligated himself not to alienate any of his property and thus put it beyond his wife's reach. L, therefore, demands that R. Mushlin take an oath to support his assertions.
A. The testimony of R. Liber Shamash is of no consequence since a verbal admission of having given valuables to a certain person, is no proof that title to such valuables was actually transferred to that person. Therefore, R. Mushlin has no witness to support his assertions. Although heirs may not exact an oath from a trustee appointed by their father (Gitt. 52a), this rule applies only to the heirs, who are to inherit the property managed by the trustee; but, the heirs who, according to the assertions of the trustee, are not to receive any part of such property, may exact an oath from the trustee even though they are not positive in their claim that the trustee had wronged them. Therefore, L and her children may exact the oath from R. Mushlin. Moreover, even if R. Mushlin's assertions were true, A's gift to his children by his former marriage would be considered a gift causa mortis, since it was to be given to them after A's death. Since a widow and orphaned daughters are entitled to draw their sustenance from all causa mortis gifts, L and her daughters would be entitled to draw their sustenance, and L would be entitled to collect her ketubah, from the money in the hands of R. Mushlin, if no unencumbered assets remain of A's estate. L's daughters are entitled to receive their sustenance till their marriage, the expense to be born proportionately by A's heirs (out of their inheritance). At the time of their marriage they will be entitled to a dowry of one tenth the immovables of A's estate. L's son, however, must derive his sustenance from his own portion of the inheritance, and when it will all be consumed he will have to resort to charity.
Q. L, at the time of her arrest, hired an agent to manage A's estate, to collect debts and sell valuables, in order to raise money for the ransom. She agreed to pay the agent a large sum of money for his efforts. Furthermore, R. Mushlin claims to have incurred expenses in his efforts to save L and A's children.
A. Since L had a right to hire an agent (Gitt. 52a) and since she was in urgent need of help, the agent is entitled to receive adequate compensation for his efforts; the court is to determine what constitutes adequate compensation. The agent, however, is not entitled to receive anything above such amount, even though L had promised him much more, for wages and hire are subject to reassessment. If R. Mushlin's claim is disputed, he must take an oath to support it. L had no right to sell any part of A's estate unless such sale was made in the presence of a lay court. Therefore, the articles sold must be reevaluated by such a court. If the articles had been sold below such evaluation, the difference should be deducted from L's ketubah; but if the articles were sold above the estimated value, the difference should revert to the heirs.
Q. Upon her marriage, A's daughter by a former marriage was given by R. Mushlin, as part of her dowry, her share (one quarter) of the money originally deposited with Rabbi Kuzlan (see part 3).
A. L was entitled to collect a proportionate part of her ketubah exclusively from this money; now that this money had been given to the husband of A's daughter, L may no longer collect that part of her ketubah. Therefore, R. Mushlin has directly damaged L's interests and must make good, out of his own pocket, the loss thus sustained by L.
Q. Are the heirs permitted to pay L her ketubah by transferring to her debts due from Gentiles, if she objects to such manner of payment?
A. Debts due from Gentiles can not be directly assigned to a third person. Even though there is an indirect method of assigning such debts, a woman may refuse such manner of payment since even a creditor or one who has suffered damage may refuse to receive payment in such manner. Moreover, a woman is not expected to suffer the hardships and indignities entailed in collecting debts from Gentiles. Therefore, L may insist on being paid only in nonencumbered valuables.
Q. During the perilous period of the persecution by the overlord, a Gentile who owed ten marks to A came to L and asked her to release him from this debt. L, fearing lest refusal would aggravate the situation, said to the Gentile: "I shall never demand this money from you". A's heirs claim that this release caused them an unnecessary loss of ten marks.
A. Neither according to Jewish law nor according to the law of the land does L's statement release the debtor from his obligation to A's heirs. But, if according to the law of your particular town this debt is considered cancelled, L is to be held responsible for the amount the debt was worth at the time of the release. Surely the debt was not worth very much at a time when the creditor was in mortal danger! However, if L released the aforementioned debtor, as a safety measure, and as a contributing factor to gain relief, the loss must be born by L, and the heirs that were in town at the time, pro rata.
Q. A had deposited one pound with a burgher. After L came to terms with the overlord, the burgher returned the pound. L and the heirs who were in town during the period of danger, claim that it would have been impossible to collect the pound from the burgher if the settlement had not been effected with the overlord, while the other heirs claim that the burgher would have returned the money in any event.
A. If L is not able to take an oath to the effect, that (she is certain that) the deposit would in all probability have been lost if not for the settlement with the overlord, no ransom money can be collected from this deposit.
Q. The youngest heir received for his share debts due to the estate. The market value of these debts was much less than their face value. Since every heir must contribute to the payment of L's ketubah in proportion to the amount of money, he or she, inherited from A's estate, what amount is the youngest heir to contribute?
A. He must contribute in proportion to the market value of the debts.
Q. Two notes of indebtedness were held in A's room which had been sealed up by the overlord (at the time of the extortion). Are the investments attested to by these notes, subject to the payment of the ransom money?
A. These investments are in the same category as the money and the valuables that were held in the room; for had no agreement been reached with the overlord, he would have taken away the notes of indebtedness, and the investments would have been lost. Even when the notes are presented to (Gentile) debtors, they are often unwilling to repay their debts; when such notes are lost, one can not expect repayment. Moreover, the overlord would have collected these debts for himself.
Q. L took from Gershom's share debts to the value of one hundred and seventy pounds. Now that Gershom is not required to pay any ransom money, how can he collect his money?
A. Gershom may charge this amount to his sisters' shares of the ransom money and collect it from them, or he may charge it to the payment of L's ketubah. L does not have to collect her ketubah, or the ransom money, directly from the orphan girls; she may collect it from their money in the hands of R. Mushlin. The latter has no right to give the money he holds, to anyone until L receives all that is due her from the heirs, both male and female, each one according to his share.
If R. Mushlin has already given this money to the heirs, or should he in the future give it to them in order to put obstacles in L's way, and thus make it difficult for her to collect her money, then R. Mushlin is to be held responsible for such payments, and is to pay L out of his own pocket.
R. Meir adds: "You have protracted your case and have burdened me beyond endurance. I cannot bear your sending me any further inquiries regarding this case. It is obvious that the trustees are only interested in causing annoyance, vexation and protraction. From now on judge any case that may come before you, yourselves!" R. Meir further adds: "At last it has become apparent, it is sad to reflect, that all these cunning machinations are employed only to harass the widow, to procrastinate, and to deprive her of her ketubah; but you are merely succeeding in troubling and harassing me to no purpose."
These Responsa are addressed to "My relatives Rabbi Elijah and Rabbi David".
SOURCES: Am II, 19, 20, 21, 22, 23.
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Teshuvot Maharam
Q. A paid his taxes directly to the overlord of his town, independently of the rest of the community. The overlord, suspecting that A possessed much greater wealth than he usually professed to have, and being driven by a greed for money, arrested him without cause and later arrested his wife L. Before her arrest, however, and before the reason for these arrests became manifest, L helped Gershom, A's son by a previous marriage, to flee the domain of the overlord and thus escape from his clutches. Meanwhile, A was put to death in prison. The overlord posted guards in the town to make sure that A's children did not escape, and demanded a large sum of money from L. He further proposed that L merge her taxes with those of the community and that the latter jointly with L negotiate the new tax. When the community representatives asked as to the identity of the persons who would be expected to pay this tax, the overlord answered that everybody would pay it, the young and the old, the rich and the poor. The community representatives, then, strongly objected to the merger with L; whereupon the overlord agreed to negotiate with them separately. He levied a very heavy tax on the community, but this tax did not exceed the estimated value of the wealth of the community members. L was warned that should she prove to be stubborn and unyielding, she and A's children would be made to suffer the same fate as A. Finally the overlord came to terms with L and agreed to release her, and to return to her A's impounded valuables, for a ransom of six hundred and twenty pounds. To insure the payment of this ransom the overlord demanded as hostages one of L's children and one of A's children by his former marriage. Now Gershom, and A's other children by his former marriage, refuse to pay their part of the ransom money, and instead, wish to pay their part of the assessment on the community.
A. Gershom is not obliged to pay any part of the ransom money since he escaped before the overlord asked for such money. Although L engineered his escape, he is under no monetary obligation to her, since she merely did him a favor. However, if Gershom is to claim, as his share of the inheritance, part of A's valuables that have remained in town within the grasp of the overlord, he must pay a proportionate part of the ransom for such valuables. A's children by his former marriage must pay their part of the ransom money in proportion to their wealth. Even though they were not imprisoned, there is sufficient indication that the overlord intended to include them in the extortion. Thus, guards had been posted in town to watch them, and their lives had been explicitly threatened upon L's refusal to come to terms with the overlord. Moreover, had the overlord negotiated with L regarding only her personal possessions, he would not have demanded 620 pounds from her, knowing full well that she was entitled to receive from A's estate only her ketubah, and that such a sum was well beyond her means. The overlord did not demand from the community a sum greater than the value of all their wealth; therefore, it stands to reason that he was not entirely unreasonable in his demands upon L. We may assume with certainty that had L refused to pay the ransom, A's children would have been seized, and would have been killed or forcibly baptized. Had A's children protested against being ransomed, we would have paid no attention to them and would have effected their release even against their will, and then, we would have collected the ransom money from them; for we are obliged to ransom a Jew even against his will. Now, that A's children have not protested against the ransom, they must certainly contribute thereto in proportion to their wealth. Although their lives were threatened, and the talmudic law (B.B. 116b) would thus require that the amount of the ransom money should be calculated, one half equally for each person, and the other half in proportion to the individual's wealth, this law does not apply to our case. We know that the overlord was interested only in their money, not in taking their lives, as the whole trouble started because the overlord thought A to be very wealthy.
Q. L seized some of A's movables claiming that she seized them for the purpose of paying for her sustenance. Some of these movables were originally impounded by the overlord and were later returned to L. May A's heirs force L to render under oath an account of such valuables?
A. Movables impounded by an overlord are considered abandoned property (hefker), title thereto, passing to the first person who seizes them, since the original owner must have given up hope of retrieving them. Although owners do not usually abandon movables taken away by Gentile robbers (B.K. 114a), they do abandon these when impounded by the overlord of the town, since he is the undisputed master of the town and no one can restrain him. This was especially true in our case, since his claim was bolstered by false accusations. Therefore, L is under no obligation to give an account of the movables returned to her by the overlord. However, those movables which the overlord had returned to her, and which she gave to the overlord in partial payment of the ransom, should be credited pro rata to all those who are obliged to pay the ransom, since the valuables had been given to her in order to decrease the ransom for all parties involved. Furthermore, L is under no obligation to give an accounting of the other movables she seized (the movables that were not impounded by the overlord) as long as it is known that the value of such movables does not exceed the value of her ketubah. For whenever L demands her ketubah, she will have to take an oath regarding these movables; as long as she does not demand her ketubah, no oath can be imposed on her.
Q. Rabbi Kuzlan, a relative of R. Meir, declared that A had deposited money with him and had told him to give the money, after A's death, to R. Mushlin, A's brother, who had received instructions regarding its disposal. Rabbi Kuzlan, therefore, gave the money to R. Mushlin. The latter claims that he was instructed by A to give all the money to A's children by his former marriage. R. Liber Shamash, another relative of R. Meir, testified that A made the following declaration in his presence: "Half of all the ready cash I have here, and in the house of Rabbi Kuzlan, and in the settlement, was given to Gershom my son, and the other half to his two older sisters, and I have empowered my brother Mushlin thus to dispose of the deposit that is in the house." L, on the other hand, produced a document wherein it was written that A had obligated himself not to alienate any of his property and thus put it beyond his wife's reach. L, therefore, demands that R. Mushlin take an oath to support his assertions.
A. The testimony of R. Liber Shamash is of no consequence since a verbal admission of having given valuables to a certain person, is no proof that title to such valuables was actually transferred to that person. Therefore, R. Mushlin has no witness to support his assertions. Although heirs may not exact an oath from a trustee appointed by their father (Gitt. 52a), this rule applies only to the heirs, who are to inherit the property managed by the trustee; but, the heirs who, according to the assertions of the trustee, are not to receive any part of such property, may exact an oath from the trustee even though they are not positive in their claim that the trustee had wronged them. Therefore, L and her children may exact the oath from R. Mushlin. Moreover, even if R. Mushlin's assertions were true, A's gift to his children by his former marriage would be considered a gift causa mortis, since it was to be given to them after A's death. Since a widow and orphaned daughters are entitled to draw their sustenance from all causa mortis gifts, L and her daughters would be entitled to draw their sustenance, and L would be entitled to collect her ketubah, from the money in the hands of R. Mushlin, if no unencumbered assets remain of A's estate. L's daughters are entitled to receive their sustenance till their marriage, the expense to be born proportionately by A's heirs (out of their inheritance). At the time of their marriage they will be entitled to a dowry of one tenth the immovables of A's estate. L's son, however, must derive his sustenance from his own portion of the inheritance, and when it will all be consumed he will have to resort to charity.
Q. L, at the time of her arrest, hired an agent to manage A's estate, to collect debts and sell valuables, in order to raise money for the ransom. She agreed to pay the agent a large sum of money for his efforts. Furthermore, R. Mushlin claims to have incurred expenses in his efforts to save L and A's children.
A. Since L had a right to hire an agent (Gitt. 52a) and since she was in urgent need of help, the agent is entitled to receive adequate compensation for his efforts; the court is to determine what constitutes adequate compensation. The agent, however, is not entitled to receive anything above such amount, even though L had promised him much more, for wages and hire are subject to reassessment. If R. Mushlin's claim is disputed, he must take an oath to support it. L had no right to sell any part of A's estate unless such sale was made in the presence of a lay court. Therefore, the articles sold must be reevaluated by such a court. If the articles had been sold below such evaluation, the difference should be deducted from L's ketubah; but if the articles were sold above the estimated value, the difference should revert to the heirs.
Q. Upon her marriage, A's daughter by a former marriage was given by R. Mushlin, as part of her dowry, her share (one quarter) of the money originally deposited with Rabbi Kuzlan (see part 3).
A. L was entitled to collect a proportionate part of her ketubah exclusively from this money; now that this money had been given to the husband of A's daughter, L may no longer collect that part of her ketubah. Therefore, R. Mushlin has directly damaged L's interests and must make good, out of his own pocket, the loss thus sustained by L.
Q. Are the heirs permitted to pay L her ketubah by transferring to her debts due from Gentiles, if she objects to such manner of payment?
A. Debts due from Gentiles can not be directly assigned to a third person. Even though there is an indirect method of assigning such debts, a woman may refuse such manner of payment since even a creditor or one who has suffered damage may refuse to receive payment in such manner. Moreover, a woman is not expected to suffer the hardships and indignities entailed in collecting debts from Gentiles. Therefore, L may insist on being paid only in nonencumbered valuables.
Q. During the perilous period of the persecution by the overlord, a Gentile who owed ten marks to A came to L and asked her to release him from this debt. L, fearing lest refusal would aggravate the situation, said to the Gentile: "I shall never demand this money from you". A's heirs claim that this release caused them an unnecessary loss of ten marks.
A. Neither according to Jewish law nor according to the law of the land does L's statement release the debtor from his obligation to A's heirs. But, if according to the law of your particular town this debt is considered cancelled, L is to be held responsible for the amount the debt was worth at the time of the release. Surely the debt was not worth very much at a time when the creditor was in mortal danger! However, if L released the aforementioned debtor, as a safety measure, and as a contributing factor to gain relief, the loss must be born by L, and the heirs that were in town at the time, pro rata.
Q. A had deposited one pound with a burgher. After L came to terms with the overlord, the burgher returned the pound. L and the heirs who were in town during the period of danger, claim that it would have been impossible to collect the pound from the burgher if the settlement had not been effected with the overlord, while the other heirs claim that the burgher would have returned the money in any event.
A. If L is not able to take an oath to the effect, that (she is certain that) the deposit would in all probability have been lost if not for the settlement with the overlord, no ransom money can be collected from this deposit.
Q. The youngest heir received for his share debts due to the estate. The market value of these debts was much less than their face value. Since every heir must contribute to the payment of L's ketubah in proportion to the amount of money, he or she, inherited from A's estate, what amount is the youngest heir to contribute?
A. He must contribute in proportion to the market value of the debts.
Q. Two notes of indebtedness were held in A's room which had been sealed up by the overlord (at the time of the extortion). Are the investments attested to by these notes, subject to the payment of the ransom money?
A. These investments are in the same category as the money and the valuables that were held in the room; for had no agreement been reached with the overlord, he would have taken away the notes of indebtedness, and the investments would have been lost. Even when the notes are presented to (Gentile) debtors, they are often unwilling to repay their debts; when such notes are lost, one can not expect repayment. Moreover, the overlord would have collected these debts for himself.
Q. L took from Gershom's share debts to the value of one hundred and seventy pounds. Now that Gershom is not required to pay any ransom money, how can he collect his money?
A. Gershom may charge this amount to his sisters' shares of the ransom money and collect it from them, or he may charge it to the payment of L's ketubah. L does not have to collect her ketubah, or the ransom money, directly from the orphan girls; she may collect it from their money in the hands of R. Mushlin. The latter has no right to give the money he holds, to anyone until L receives all that is due her from the heirs, both male and female, each one according to his share.
If R. Mushlin has already given this money to the heirs, or should he in the future give it to them in order to put obstacles in L's way, and thus make it difficult for her to collect her money, then R. Mushlin is to be held responsible for such payments, and is to pay L out of his own pocket.
R. Meir adds: "You have protracted your case and have burdened me beyond endurance. I cannot bear your sending me any further inquiries regarding this case. It is obvious that the trustees are only interested in causing annoyance, vexation and protraction. From now on judge any case that may come before you, yourselves!" R. Meir further adds: "At last it has become apparent, it is sad to reflect, that all these cunning machinations are employed only to harass the widow, to procrastinate, and to deprive her of her ketubah; but you are merely succeeding in troubling and harassing me to no purpose."
These Responsa are addressed to "My relatives Rabbi Elijah and Rabbi David".
SOURCES: Am II, 19, 20, 21, 22, 23.
A. Gershom is not obliged to pay any part of the ransom money since he escaped before the overlord asked for such money. Although L engineered his escape, he is under no monetary obligation to her, since she merely did him a favor. However, if Gershom is to claim, as his share of the inheritance, part of A's valuables that have remained in town within the grasp of the overlord, he must pay a proportionate part of the ransom for such valuables. A's children by his former marriage must pay their part of the ransom money in proportion to their wealth. Even though they were not imprisoned, there is sufficient indication that the overlord intended to include them in the extortion. Thus, guards had been posted in town to watch them, and their lives had been explicitly threatened upon L's refusal to come to terms with the overlord. Moreover, had the overlord negotiated with L regarding only her personal possessions, he would not have demanded 620 pounds from her, knowing full well that she was entitled to receive from A's estate only her ketubah, and that such a sum was well beyond her means. The overlord did not demand from the community a sum greater than the value of all their wealth; therefore, it stands to reason that he was not entirely unreasonable in his demands upon L. We may assume with certainty that had L refused to pay the ransom, A's children would have been seized, and would have been killed or forcibly baptized. Had A's children protested against being ransomed, we would have paid no attention to them and would have effected their release even against their will, and then, we would have collected the ransom money from them; for we are obliged to ransom a Jew even against his will. Now, that A's children have not protested against the ransom, they must certainly contribute thereto in proportion to their wealth. Although their lives were threatened, and the talmudic law (B.B. 116b) would thus require that the amount of the ransom money should be calculated, one half equally for each person, and the other half in proportion to the individual's wealth, this law does not apply to our case. We know that the overlord was interested only in their money, not in taking their lives, as the whole trouble started because the overlord thought A to be very wealthy.
Q. L seized some of A's movables claiming that she seized them for the purpose of paying for her sustenance. Some of these movables were originally impounded by the overlord and were later returned to L. May A's heirs force L to render under oath an account of such valuables?
A. Movables impounded by an overlord are considered abandoned property (hefker), title thereto, passing to the first person who seizes them, since the original owner must have given up hope of retrieving them. Although owners do not usually abandon movables taken away by Gentile robbers (B.K. 114a), they do abandon these when impounded by the overlord of the town, since he is the undisputed master of the town and no one can restrain him. This was especially true in our case, since his claim was bolstered by false accusations. Therefore, L is under no obligation to give an account of the movables returned to her by the overlord. However, those movables which the overlord had returned to her, and which she gave to the overlord in partial payment of the ransom, should be credited pro rata to all those who are obliged to pay the ransom, since the valuables had been given to her in order to decrease the ransom for all parties involved. Furthermore, L is under no obligation to give an accounting of the other movables she seized (the movables that were not impounded by the overlord) as long as it is known that the value of such movables does not exceed the value of her ketubah. For whenever L demands her ketubah, she will have to take an oath regarding these movables; as long as she does not demand her ketubah, no oath can be imposed on her.
Q. Rabbi Kuzlan, a relative of R. Meir, declared that A had deposited money with him and had told him to give the money, after A's death, to R. Mushlin, A's brother, who had received instructions regarding its disposal. Rabbi Kuzlan, therefore, gave the money to R. Mushlin. The latter claims that he was instructed by A to give all the money to A's children by his former marriage. R. Liber Shamash, another relative of R. Meir, testified that A made the following declaration in his presence: "Half of all the ready cash I have here, and in the house of Rabbi Kuzlan, and in the settlement, was given to Gershom my son, and the other half to his two older sisters, and I have empowered my brother Mushlin thus to dispose of the deposit that is in the house." L, on the other hand, produced a document wherein it was written that A had obligated himself not to alienate any of his property and thus put it beyond his wife's reach. L, therefore, demands that R. Mushlin take an oath to support his assertions.
A. The testimony of R. Liber Shamash is of no consequence since a verbal admission of having given valuables to a certain person, is no proof that title to such valuables was actually transferred to that person. Therefore, R. Mushlin has no witness to support his assertions. Although heirs may not exact an oath from a trustee appointed by their father (Gitt. 52a), this rule applies only to the heirs, who are to inherit the property managed by the trustee; but, the heirs who, according to the assertions of the trustee, are not to receive any part of such property, may exact an oath from the trustee even though they are not positive in their claim that the trustee had wronged them. Therefore, L and her children may exact the oath from R. Mushlin. Moreover, even if R. Mushlin's assertions were true, A's gift to his children by his former marriage would be considered a gift causa mortis, since it was to be given to them after A's death. Since a widow and orphaned daughters are entitled to draw their sustenance from all causa mortis gifts, L and her daughters would be entitled to draw their sustenance, and L would be entitled to collect her ketubah, from the money in the hands of R. Mushlin, if no unencumbered assets remain of A's estate. L's daughters are entitled to receive their sustenance till their marriage, the expense to be born proportionately by A's heirs (out of their inheritance). At the time of their marriage they will be entitled to a dowry of one tenth the immovables of A's estate. L's son, however, must derive his sustenance from his own portion of the inheritance, and when it will all be consumed he will have to resort to charity.
Q. L, at the time of her arrest, hired an agent to manage A's estate, to collect debts and sell valuables, in order to raise money for the ransom. She agreed to pay the agent a large sum of money for his efforts. Furthermore, R. Mushlin claims to have incurred expenses in his efforts to save L and A's children.
A. Since L had a right to hire an agent (Gitt. 52a) and since she was in urgent need of help, the agent is entitled to receive adequate compensation for his efforts; the court is to determine what constitutes adequate compensation. The agent, however, is not entitled to receive anything above such amount, even though L had promised him much more, for wages and hire are subject to reassessment. If R. Mushlin's claim is disputed, he must take an oath to support it. L had no right to sell any part of A's estate unless such sale was made in the presence of a lay court. Therefore, the articles sold must be reevaluated by such a court. If the articles had been sold below such evaluation, the difference should be deducted from L's ketubah; but if the articles were sold above the estimated value, the difference should revert to the heirs.
Q. Upon her marriage, A's daughter by a former marriage was given by R. Mushlin, as part of her dowry, her share (one quarter) of the money originally deposited with Rabbi Kuzlan (see part 3).
A. L was entitled to collect a proportionate part of her ketubah exclusively from this money; now that this money had been given to the husband of A's daughter, L may no longer collect that part of her ketubah. Therefore, R. Mushlin has directly damaged L's interests and must make good, out of his own pocket, the loss thus sustained by L.
Q. Are the heirs permitted to pay L her ketubah by transferring to her debts due from Gentiles, if she objects to such manner of payment?
A. Debts due from Gentiles can not be directly assigned to a third person. Even though there is an indirect method of assigning such debts, a woman may refuse such manner of payment since even a creditor or one who has suffered damage may refuse to receive payment in such manner. Moreover, a woman is not expected to suffer the hardships and indignities entailed in collecting debts from Gentiles. Therefore, L may insist on being paid only in nonencumbered valuables.
Q. During the perilous period of the persecution by the overlord, a Gentile who owed ten marks to A came to L and asked her to release him from this debt. L, fearing lest refusal would aggravate the situation, said to the Gentile: "I shall never demand this money from you". A's heirs claim that this release caused them an unnecessary loss of ten marks.
A. Neither according to Jewish law nor according to the law of the land does L's statement release the debtor from his obligation to A's heirs. But, if according to the law of your particular town this debt is considered cancelled, L is to be held responsible for the amount the debt was worth at the time of the release. Surely the debt was not worth very much at a time when the creditor was in mortal danger! However, if L released the aforementioned debtor, as a safety measure, and as a contributing factor to gain relief, the loss must be born by L, and the heirs that were in town at the time, pro rata.
Q. A had deposited one pound with a burgher. After L came to terms with the overlord, the burgher returned the pound. L and the heirs who were in town during the period of danger, claim that it would have been impossible to collect the pound from the burgher if the settlement had not been effected with the overlord, while the other heirs claim that the burgher would have returned the money in any event.
A. If L is not able to take an oath to the effect, that (she is certain that) the deposit would in all probability have been lost if not for the settlement with the overlord, no ransom money can be collected from this deposit.
Q. The youngest heir received for his share debts due to the estate. The market value of these debts was much less than their face value. Since every heir must contribute to the payment of L's ketubah in proportion to the amount of money, he or she, inherited from A's estate, what amount is the youngest heir to contribute?
A. He must contribute in proportion to the market value of the debts.
Q. Two notes of indebtedness were held in A's room which had been sealed up by the overlord (at the time of the extortion). Are the investments attested to by these notes, subject to the payment of the ransom money?
A. These investments are in the same category as the money and the valuables that were held in the room; for had no agreement been reached with the overlord, he would have taken away the notes of indebtedness, and the investments would have been lost. Even when the notes are presented to (Gentile) debtors, they are often unwilling to repay their debts; when such notes are lost, one can not expect repayment. Moreover, the overlord would have collected these debts for himself.
Q. L took from Gershom's share debts to the value of one hundred and seventy pounds. Now that Gershom is not required to pay any ransom money, how can he collect his money?
A. Gershom may charge this amount to his sisters' shares of the ransom money and collect it from them, or he may charge it to the payment of L's ketubah. L does not have to collect her ketubah, or the ransom money, directly from the orphan girls; she may collect it from their money in the hands of R. Mushlin. The latter has no right to give the money he holds, to anyone until L receives all that is due her from the heirs, both male and female, each one according to his share.
If R. Mushlin has already given this money to the heirs, or should he in the future give it to them in order to put obstacles in L's way, and thus make it difficult for her to collect her money, then R. Mushlin is to be held responsible for such payments, and is to pay L out of his own pocket.
R. Meir adds: "You have protracted your case and have burdened me beyond endurance. I cannot bear your sending me any further inquiries regarding this case. It is obvious that the trustees are only interested in causing annoyance, vexation and protraction. From now on judge any case that may come before you, yourselves!" R. Meir further adds: "At last it has become apparent, it is sad to reflect, that all these cunning machinations are employed only to harass the widow, to procrastinate, and to deprive her of her ketubah; but you are merely succeeding in troubling and harassing me to no purpose."
These Responsa are addressed to "My relatives Rabbi Elijah and Rabbi David".
SOURCES: Am II, 19, 20, 21, 22, 23.
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Teshuvot Maharam
Q. A drained the water in his yard by means of a ditch which was adjacent to B's stone wall. B claimed that when the ditch was full, the water had flooded his house. He, therefore, demanded that A fill up his ditch. A claimed that the ditch had been in his yard for a period of twenty-four years and that B had never protested before. B, however, contended that the ditch had not previously caused him any damage. A's father bought the property with the ditch from a Jew who, in turn, had bought it from a Gentile.
A. If A removes his ditch one tefah from B's wall, he is free from further obligation. But even if A does not do so, he is free from any obligation since he inherited the ditch from his father, who, if alive, could claim that he bought the right to maintain the ditch from B. Moreover, A is not required to take an oath to the effect that he never heard his father say that he did not buy from B (or B's father) the right to maintain the ditch for the following reasons: a) Orphans are not required to take an oath in order to free themselves from a money obligation; b) the oath of orphans is a rabbinical decree and the Rabbis did not decree anything disadvantageous to the interests of the orphans.
The fact that A's yard originally belonged to a Gentile, has nothing to do with the case since B does not claim that the Gentile dug the ditch illegally. If B does put forth the claim that the Gentile dug the ditch illegally, it will avail him nothing, since, again, the court will have to put forth the claim, for A's benefit, that A's father bought the right to maintain the ditch from B or B's predecessors.
This Responsum was sent to R. Manahem b. David and R. Hillel b. Azriel of Würzburg (Cr. 23).
SOURCES: Cr. 23; Pr. 143; L. 388; Mord. B. B. 548; Agudah B. M. 180.
A. If A removes his ditch one tefah from B's wall, he is free from further obligation. But even if A does not do so, he is free from any obligation since he inherited the ditch from his father, who, if alive, could claim that he bought the right to maintain the ditch from B. Moreover, A is not required to take an oath to the effect that he never heard his father say that he did not buy from B (or B's father) the right to maintain the ditch for the following reasons: a) Orphans are not required to take an oath in order to free themselves from a money obligation; b) the oath of orphans is a rabbinical decree and the Rabbis did not decree anything disadvantageous to the interests of the orphans.
The fact that A's yard originally belonged to a Gentile, has nothing to do with the case since B does not claim that the Gentile dug the ditch illegally. If B does put forth the claim that the Gentile dug the ditch illegally, it will avail him nothing, since, again, the court will have to put forth the claim, for A's benefit, that A's father bought the right to maintain the ditch from B or B's predecessors.
This Responsum was sent to R. Manahem b. David and R. Hillel b. Azriel of Würzburg (Cr. 23).
SOURCES: Cr. 23; Pr. 143; L. 388; Mord. B. B. 548; Agudah B. M. 180.
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b) Q. After A died L took over, and managed, his estate. Why, then, did you write that the estate was considered, nevertheless, to be in the possession of the orphans?
A. R. Hananel decided that the estate managed by the widow is considered to be in the possession of the orphans. The widow is merely a managing trustee. Therefore, all the profit accruing because of her management, belongs to the orphans and she can not collect her ketubah therefrom. When the widow demands her ketubah she loses her right to receive her sustenance from the estate. She must, then, take an oath while holding the Scroll of the Law; and whatever she thus states under oath to have given away, or to have retained for herself, to have given to her daughter, or to have given to charity, is deducted from her ketubah.
A. R. Hananel decided that the estate managed by the widow is considered to be in the possession of the orphans. The widow is merely a managing trustee. Therefore, all the profit accruing because of her management, belongs to the orphans and she can not collect her ketubah therefrom. When the widow demands her ketubah she loses her right to receive her sustenance from the estate. She must, then, take an oath while holding the Scroll of the Law; and whatever she thus states under oath to have given away, or to have retained for herself, to have given to her daughter, or to have given to charity, is deducted from her ketubah.
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Teshuvot Maharam
Q. A drained the water in his yard by means of a ditch which was adjacent to B's stone wall. B claimed that when the ditch was full, the water had flooded his house. He, therefore, demanded that A fill up his ditch. A claimed that the ditch had been in his yard for a period of twenty-four years and that B had never protested before. B, however, contended that the ditch had not previously caused him any damage. A's father bought the property with the ditch from a Jew who, in turn, had bought it from a Gentile.
A. If A removes his ditch one tefah from B's wall, he is free from further obligation. But even if A does not do so, he is free from any obligation since he inherited the ditch from his father, who, if alive, could claim that he bought the right to maintain the ditch from B. Moreover, A is not required to take an oath to the effect that he never heard his father say that he did not buy from B (or B's father) the right to maintain the ditch for the following reasons: a) Orphans are not required to take an oath in order to free themselves from a money obligation; b) the oath of orphans is a rabbinical decree and the Rabbis did not decree anything disadvantageous to the interests of the orphans.
The fact that A's yard originally belonged to a Gentile, has nothing to do with the case since B does not claim that the Gentile dug the ditch illegally. If B does put forth the claim that the Gentile dug the ditch illegally, it will avail him nothing, since, again, the court will have to put forth the claim, for A's benefit, that A's father bought the right to maintain the ditch from B or B's predecessors.
This Responsum was sent to R. Manahem b. David and R. Hillel b. Azriel of Würzburg (Cr. 23).
SOURCES: Cr. 23; Pr. 143; L. 388; Mord. B. B. 548; Agudah B. M. 180.
A. If A removes his ditch one tefah from B's wall, he is free from further obligation. But even if A does not do so, he is free from any obligation since he inherited the ditch from his father, who, if alive, could claim that he bought the right to maintain the ditch from B. Moreover, A is not required to take an oath to the effect that he never heard his father say that he did not buy from B (or B's father) the right to maintain the ditch for the following reasons: a) Orphans are not required to take an oath in order to free themselves from a money obligation; b) the oath of orphans is a rabbinical decree and the Rabbis did not decree anything disadvantageous to the interests of the orphans.
The fact that A's yard originally belonged to a Gentile, has nothing to do with the case since B does not claim that the Gentile dug the ditch illegally. If B does put forth the claim that the Gentile dug the ditch illegally, it will avail him nothing, since, again, the court will have to put forth the claim, for A's benefit, that A's father bought the right to maintain the ditch from B or B's predecessors.
This Responsum was sent to R. Manahem b. David and R. Hillel b. Azriel of Würzburg (Cr. 23).
SOURCES: Cr. 23; Pr. 143; L. 388; Mord. B. B. 548; Agudah B. M. 180.
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Teshuvot Maharam
Q. An insane person fell heir to an estate. In his locality, however, no Jewish court exists to declare him insane and thus to permit the appointment of a trustee to manage the estate for his benefit. May a court declare him insane upon the testimony of two witnesses who have observed him in his locality?
A. If the testimony of two witnesses is sufficient to deprive a person of his life, it should be sufficient to declare him insane and incapable of managing his affairs. The trustee thus appointed would have complete charge of his affairs, and, if need be, would be permitted even to provide him with a wife.
This Responsum is addressed to: "My teacher and relative Rabbi Yakar haLevi".
SOURCES: Cr. 160.
A. If the testimony of two witnesses is sufficient to deprive a person of his life, it should be sufficient to declare him insane and incapable of managing his affairs. The trustee thus appointed would have complete charge of his affairs, and, if need be, would be permitted even to provide him with a wife.
This Responsum is addressed to: "My teacher and relative Rabbi Yakar haLevi".
SOURCES: Cr. 160.
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Q. How are we to invest money belonging to orphans; are we permitted to lend such money on interest?
A. The Talmud provides that such money be invested with a rich and trustworthy person, one who obeys the laws of the Torah and is careful not to bring upon himself a ban of the Rabbis. It should be invested on condition that the orphans share in the profits but not in the losses (B. M. 70 a). To invest such money in mortgages on houses, fields, or vineyards, is preferable, since money may be lost but land lasts forever. The written contract attesting the transaction, should be deposited with a trustworthy person or with the trustee of the orphans. But, we are not permitted to lend such money on a definite rate of interest.
SOURCES: L. 235.
A. The Talmud provides that such money be invested with a rich and trustworthy person, one who obeys the laws of the Torah and is careful not to bring upon himself a ban of the Rabbis. It should be invested on condition that the orphans share in the profits but not in the losses (B. M. 70 a). To invest such money in mortgages on houses, fields, or vineyards, is preferable, since money may be lost but land lasts forever. The written contract attesting the transaction, should be deposited with a trustworthy person or with the trustee of the orphans. But, we are not permitted to lend such money on a definite rate of interest.
SOURCES: L. 235.
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Teshuvot Maharam
Q. A drained the water in his yard by means of a ditch which was adjacent to B's stone wall. B claimed that when the ditch was full, the water had flooded his house. He, therefore, demanded that A fill up his ditch. A claimed that the ditch had been in his yard for a period of twenty-four years and that B had never protested before. B, however, contended that the ditch had not previously caused him any damage. A's father bought the property with the ditch from a Jew who, in turn, had bought it from a Gentile.
A. If A removes his ditch one tefah from B's wall, he is free from further obligation. But even if A does not do so, he is free from any obligation since he inherited the ditch from his father, who, if alive, could claim that he bought the right to maintain the ditch from B. Moreover, A is not required to take an oath to the effect that he never heard his father say that he did not buy from B (or B's father) the right to maintain the ditch for the following reasons: a) Orphans are not required to take an oath in order to free themselves from a money obligation; b) the oath of orphans is a rabbinical decree and the Rabbis did not decree anything disadvantageous to the interests of the orphans.
The fact that A's yard originally belonged to a Gentile, has nothing to do with the case since B does not claim that the Gentile dug the ditch illegally. If B does put forth the claim that the Gentile dug the ditch illegally, it will avail him nothing, since, again, the court will have to put forth the claim, for A's benefit, that A's father bought the right to maintain the ditch from B or B's predecessors.
This Responsum was sent to R. Manahem b. David and R. Hillel b. Azriel of Würzburg (Cr. 23).
SOURCES: Cr. 23; Pr. 143; L. 388; Mord. B. B. 548; Agudah B. M. 180.
A. If A removes his ditch one tefah from B's wall, he is free from further obligation. But even if A does not do so, he is free from any obligation since he inherited the ditch from his father, who, if alive, could claim that he bought the right to maintain the ditch from B. Moreover, A is not required to take an oath to the effect that he never heard his father say that he did not buy from B (or B's father) the right to maintain the ditch for the following reasons: a) Orphans are not required to take an oath in order to free themselves from a money obligation; b) the oath of orphans is a rabbinical decree and the Rabbis did not decree anything disadvantageous to the interests of the orphans.
The fact that A's yard originally belonged to a Gentile, has nothing to do with the case since B does not claim that the Gentile dug the ditch illegally. If B does put forth the claim that the Gentile dug the ditch illegally, it will avail him nothing, since, again, the court will have to put forth the claim, for A's benefit, that A's father bought the right to maintain the ditch from B or B's predecessors.
This Responsum was sent to R. Manahem b. David and R. Hillel b. Azriel of Würzburg (Cr. 23).
SOURCES: Cr. 23; Pr. 143; L. 388; Mord. B. B. 548; Agudah B. M. 180.
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Teshuvot Maharam
a) Q. A married L in Mayence, or in another locality, where the ketubah is valued at two hundred marks. They then removed to a different locality where the ketubah is valued at much less. They lived in the latter place until A's death. How much money is L entitled to as her ketubah?
A. The opinion of R. Simon b. Gamaliel (Ket. 110b) is accepted that a woman is entitled to the ketubah current in the locality where her marriage took place.
b) Q. After A died L took over, and managed, his estate. Why, then, did you write that the estate was considered, nevertheless, to be in the possession of the orphans?
A. R. Hananel decided that the estate managed by the widow is considered to be in the possession of the orphans. The widow is merely a managing trustee. Therefore, all the profit accruing because of her management, belongs to the orphans and she can not collect her ketubah therefrom. When the widow demands her ketubah she loses her right to receive her sustenance from the estate. She must, then, take an oath while holding the Scroll of the Law; and whatever she thus states under oath to have given away, or to have retained for herself, to have given to her daughter, or to have given to charity, is deducted from her ketubah.
c) Q. L lent some of the money to lords and "men of violence", and it is doubtful whether the latter will pay their debts.
A. L is responsible for these bad investments. Ordinarily when heirs pay the ketubah to a widow, they may give her in payment any kind of property, or any object even bran; but they cannot pay her by transferring to her money due them from others, since the collection of debts often involves litigations to which a woman is not accustomed. However, in our case, the orphans may transfer to L the money she has invested with the lords and the "men of violence", in payment of her ketubah, since she had no right to make such unsafe investments.
d) Q. While L managed the estate she gave presents to certain persons thinking she had the right to do so. Are the orphans entitled to take back the presents?
A. The recipients are entitled to retain these presents since they may claim that L gave them out of her own property, and since it appears that the market ordinance (takkanat hashuk) was to apply to property given away as presents.
e) Q. Do we put forth the claim for the benefit of the orphans that L may have been a widow when she married A, or that A may have paid her one Mina.?
A. We surely put forth the above claims for the benefit of the orphans. However, if a report circulates that L was a virgin when she married A, she is entitled to the ketubah of a virgin, since the majority of women are married while virgins. [The principle of "a majority of cases" presumes that what is true in most instances, is also true in our case.] Although in litigation over money matters the principle of "a majority of cases" is not a factor, it is so when the claimant is in actual possession of the litigated money. In our case, L is in actual possession of the money; therefore, the combination of a "majority" and a "report" in her favor, is conclusive.
SOURCES: Cr. 127–8–9–30–31; L. 480–1–2–3.
A. The opinion of R. Simon b. Gamaliel (Ket. 110b) is accepted that a woman is entitled to the ketubah current in the locality where her marriage took place.
b) Q. After A died L took over, and managed, his estate. Why, then, did you write that the estate was considered, nevertheless, to be in the possession of the orphans?
A. R. Hananel decided that the estate managed by the widow is considered to be in the possession of the orphans. The widow is merely a managing trustee. Therefore, all the profit accruing because of her management, belongs to the orphans and she can not collect her ketubah therefrom. When the widow demands her ketubah she loses her right to receive her sustenance from the estate. She must, then, take an oath while holding the Scroll of the Law; and whatever she thus states under oath to have given away, or to have retained for herself, to have given to her daughter, or to have given to charity, is deducted from her ketubah.
c) Q. L lent some of the money to lords and "men of violence", and it is doubtful whether the latter will pay their debts.
A. L is responsible for these bad investments. Ordinarily when heirs pay the ketubah to a widow, they may give her in payment any kind of property, or any object even bran; but they cannot pay her by transferring to her money due them from others, since the collection of debts often involves litigations to which a woman is not accustomed. However, in our case, the orphans may transfer to L the money she has invested with the lords and the "men of violence", in payment of her ketubah, since she had no right to make such unsafe investments.
d) Q. While L managed the estate she gave presents to certain persons thinking she had the right to do so. Are the orphans entitled to take back the presents?
A. The recipients are entitled to retain these presents since they may claim that L gave them out of her own property, and since it appears that the market ordinance (takkanat hashuk) was to apply to property given away as presents.
e) Q. Do we put forth the claim for the benefit of the orphans that L may have been a widow when she married A, or that A may have paid her one Mina.?
A. We surely put forth the above claims for the benefit of the orphans. However, if a report circulates that L was a virgin when she married A, she is entitled to the ketubah of a virgin, since the majority of women are married while virgins. [The principle of "a majority of cases" presumes that what is true in most instances, is also true in our case.] Although in litigation over money matters the principle of "a majority of cases" is not a factor, it is so when the claimant is in actual possession of the litigated money. In our case, L is in actual possession of the money; therefore, the combination of a "majority" and a "report" in her favor, is conclusive.
SOURCES: Cr. 127–8–9–30–31; L. 480–1–2–3.
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Teshuvot Maharam
Q. A avers that he was appointed trustee of orphans' property by their deceased father. May the court exact an oath from A that he was so appointed?
A. A must produce evidence through witnesses that he was appointed trustee by the orphans' father. If he has no witnesses, his oath is of no avail, and the court must appoint a reliable trustee of its own choice.
SOURCES: Cr. 273; Pr. 592; L. 240; Mord. Git. 390; Hag. Maim. to Nahlot, 10, 7.
A. A must produce evidence through witnesses that he was appointed trustee by the orphans' father. If he has no witnesses, his oath is of no avail, and the court must appoint a reliable trustee of its own choice.
SOURCES: Cr. 273; Pr. 592; L. 240; Mord. Git. 390; Hag. Maim. to Nahlot, 10, 7.
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Teshuvot Maharam
Q. A trustee loaned money belonging to orphans to A on interest, at the rate of one quarter per mark. A refused to pay the interest. Moreover, A claimed to have repaid part of the loan, which claim the trustee denied. The inquiring judges decided that even money belonging to orphans can not be loaned to a Jew at a definite rate of interest.
A. Your decision was correct and the trustee's stipulation of a definite interest was illegal and, therefore, void. However, under the circumstances, the loan is as if made by the Jewish court — the natural trustee and protector of all orphans — on the usual terms [made when orphans' money is loaned]: "to share in the profits but not in the losses." Therefore, if A earned profits with the money, he must pay to the trustee, the stipulated quarter per mark. If A admits that the money he borrowed belonged to the orphans, but claims to have repaid part of it, the trustee is believed as to the amount he received from A, (in repayment of the loan), and is not required to take an oath since the trustee is a disinterested third party. But if A states his belief that the trustee loaned him his own money, and not the orphans' money, the trustee must take an oath as to the amount he received from A in repayment of the loan, though he is not required to take an oath to the effect that the money he loaned belonged to the orphans.
SOURCES: Pr. 969; Mord. B.M. 332; Agudah B.M. 98.
A. Your decision was correct and the trustee's stipulation of a definite interest was illegal and, therefore, void. However, under the circumstances, the loan is as if made by the Jewish court — the natural trustee and protector of all orphans — on the usual terms [made when orphans' money is loaned]: "to share in the profits but not in the losses." Therefore, if A earned profits with the money, he must pay to the trustee, the stipulated quarter per mark. If A admits that the money he borrowed belonged to the orphans, but claims to have repaid part of it, the trustee is believed as to the amount he received from A, (in repayment of the loan), and is not required to take an oath since the trustee is a disinterested third party. But if A states his belief that the trustee loaned him his own money, and not the orphans' money, the trustee must take an oath as to the amount he received from A in repayment of the loan, though he is not required to take an oath to the effect that the money he loaned belonged to the orphans.
SOURCES: Pr. 969; Mord. B.M. 332; Agudah B.M. 98.
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Teshuvot Maharam
Q. A summoned his father-in-law, B, to court and claimed: 1) that B's father-in-law, C, (A's grandfather), bequeathed twenty-five marks to B's two daughters with the provision that if one daughter died childless, the other should inherit her part, and if the second daughter likewise died childless, the twenty-five marks were to go to C's male heirs; 2) that the money was deposited with B; and 3) that after he, A, had been married to B's daughter for two years, the other daughter died while still a minor. A, therefore, demanded the twenty-five marks from B. B, on the other hand, claimed that he had given the twenty-five marks to A as dowry upon the latter's marriage to his daughter. A, however, claimed that upon receiving his dowry he was not told about the twenty-five marks and that B could not have given him that money since the younger daughter was still alive. To this claim B answered that he expected to give his own money to his younger daughter. He further claims that A's wife has no children yet and, therefore, he, B, cannot give anything to A since in case A's wife dies childless, C's heirs will keep him responsible for the money.
A. B is under no obligation to A for the following reasons: 1) We believe B's claim that he included the money of his departed daughter in A's dowry, since B could have claimed that his younger daughter gave him her money, and this latter claim would have been irrefutable; 2) the father is the rightful heir of the departed daughter since C's provision for the disposition of his gift in case the daughter die childless is void.
Q. A claims that he has witnesses who will testify that B took from his (A's) father thirty marks. B claims that he returned to A whatever he had taken from his father.
A. If the witnesses will testify that B robbed A's father, A should take an oath that B did not as yet return the money to him, and be entitled to collect the thirty marks from B. If, however, B received the money from A's father in a legitimate way, B should take an oath that he had paid all the money he owed to his father, and be free from obligation.
SOURCES: Cr. 283–4; Pr. 1017; Mordecai Hagadol, p. 227a.
A. B is under no obligation to A for the following reasons: 1) We believe B's claim that he included the money of his departed daughter in A's dowry, since B could have claimed that his younger daughter gave him her money, and this latter claim would have been irrefutable; 2) the father is the rightful heir of the departed daughter since C's provision for the disposition of his gift in case the daughter die childless is void.
Q. A claims that he has witnesses who will testify that B took from his (A's) father thirty marks. B claims that he returned to A whatever he had taken from his father.
A. If the witnesses will testify that B robbed A's father, A should take an oath that B did not as yet return the money to him, and be entitled to collect the thirty marks from B. If, however, B received the money from A's father in a legitimate way, B should take an oath that he had paid all the money he owed to his father, and be free from obligation.
SOURCES: Cr. 283–4; Pr. 1017; Mordecai Hagadol, p. 227a.
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