Bava Metzia - Daf 39
- וכולם שמין להם כאריס
The Baraisa from the previous Daf concluded: וכולם שמין להם כאריס – and all those who accept to manage a relative’s property, we evaluate the profits for them like a sharecropper’s normal share. The Gemara explains that this refers to נטושים – unwillingly abandoned property (e.g., a live captive), and follows the opinion of Rabban Shimon ben Gamliel, that such properties have the same law as שבויים – properties of captives rumored to have died. The Gemara clarifies that this only pertains to installing a relative to manage the property, but abandoned property does not share the law of a captive’s property that he can quickly consume its produce before the captive returns; instead, he is paid like a sharecropper. Although someone who invests in his wife’s נכסי מלוג is not compensated, but merely enjoys the right to consume its produce while managing it, this case is comparable to one who spends on his minor wife’s property, who is compensated like a sharecropper (because he knows she can nullify the marriage through מיאון, and might abuse the property).
- A קטן is not installed in a captive’s property, nor is a relative installed in a קטן’s property
Rav Huna said: אין מורידין קטן לנכסי שבוי – We do not install a קטן in a captive’s property, because he may ruin it. ולא קרוב לנכסי קטן – Nor do we install a relative in a קטן’s property, because since the קטן does not know to protest against claims, the relative may come claim it is his share of their joint inheritance. ולא קרוב מחמת קרוב לנכסי קטן – Finally, we do not even install a relative of a relative in a קטן’s property, i.e., a maternal brother of the קטן’s relative. Although he cannot lay claim to the property himself, he can assist his maternal brother (the child’s relative) in taking possession of it. Rava said that from the fact that Rav Huna only disallowed installing a relative in a קטן’s property, but not someone else, we can prove: אין מחזיקין בנכסי קטן – one cannot establish presumption of ownership in a קטן’s property by occupying it for three years uncontested (as is the case of a גדול), ואפילו הגדיל – even if he matured after the occupation began (because he may not know the property was his father’s). If a חזקה could be established, Rav Huna would not allow anyone to occupy it.
- "ההיא סבתא", the incident of the doubtful estate of captives
The Gemara relates an incident of an elderly woman with three daughters. She and one daughter were captured, and another daughter died, leaving behind a young son. Not knowing if the elderly woman was alive, Abaye wondered how her property should be managed. It could not be left with the remaining uncaptured sister, because if the elderly woman had died, and the grandson inherited a share of her estate, the sister would be a relative unlawfully managing a קטן’s property. The קטן could not be installed in the property, because if his grandmother is alive, he would be a קטן unlawfully managing a captive’s property. Therefore, Abaye ruled that half the property should be managed by the remaining sister (either as an owner, or as a caretaker for a captive, depending on who was alive), and an אפוטרופוס is appointed to manage the other half (either for the young boy, or the adult owner). Rava said: מגו דמוקמינן אפוטרופא לפלגא – since we appoint an אפוטרופוס for half the property, מוקמינן ליה אפוטרופא לאידך פלגא – we appoint an אפוטרופוס for the other half as well. Although the Gemara stated (39a) that we do not appoint an אפוטרופוס for adults’ properties, that is because it is difficult to find a volunteer, but since one is being procured for the קטן, he will agree to watch the entire property.
