It was taught: And all of these [who are authorized to take control of the property], we evaluate them as if they were sharecroppers.
To whom [does the "all of these" apply]? If we say that it applies to captives' property, since we have already learned that "he is quick and is rewarded" [the custodian who quickly eats the produce is justified in doing so, even if the owner is already on his way home], need we ask whether he gets the profits? [Obviously, if the relative caring for the property can "eat" the produce, he can certainly take the appreciated value that an ordinary sharecropper would get.]
Does [the b'raita] refer to retushim [voluntarily abandoned] property? But the b'raita taught that we take the property away from him [without payment or recompense]!
Does it refer to netushim [involuntarily abandoned] property? Then according to whom? If it is according to the Rabbis, they said that we remove the property [without payment]. And if it is according to Rabban Shimon ben Gamliel, he has already said that he had heard that netushim property was like captive's property [for which the relative is certainly recompensed like a sharecropper]!
[The gemara answers that the b'raita indeed reflects the opinion of Rabban Shimon ben Gamliel, based on the precise language of his statement that netushim property was _like_ captive's property.]
"Like captives, but not captives." It is _like_ captive's property in the sense that we do not remove it from him (the caretaker), but not (entirely like) captive's property, for there (the case of the true captive's property), if he is quick (and eats the produce) he is rewarded, but here (in the case of forcibly abandoned property], he is evaluated like a sharecropper [i.e., he is entitled to part of the produce, but not to all of it].
And how does this differ from what we learned in a mishna (Ketubot 79b): If a man spent money on his wife's m'log property, whether he spent a lot and consumed a little, or spent little and consumed a lot, what he consumed he has consumed.
[So long as the marriage is intact, the husband manages the wife's m'log property, and receives all the profits. But the property remains hers, and reverts to her in the case of divorce or of the husband's death. But Rabban Shimon ben Gamliel ruled in the case of netushim property that the caretaker cannot "eat the produce," but is recompensed like a sharecropper. Why should the same rule not apply in the case of the husband's caring for his wife's m'log property?]
[The rule cited below as a mishna, though it is probably a b'raita, deals with the m'log property of a wife who is still a minor, i.e. under 12 years old. According to biblical law, only the father can "marry off" a young girl. If the father is dead, the girl cannot marry until she is formally considered to be an adult, six months after reaching puberty. The rabbis enacted a policy that, if the father has died, the girl's mother or adult brothers can contract a marriage for her. But such a marriage is valid only rabbinically, and the girl can nullify the marriage on her own any time before she reaches adulthood. This creates a problem for the husband; if he invests time, effort and resources in his minor wife's property, she may unilaterally annul the marriage, and the man will lose his investment.]
That case [the case of netushim] is only comparable to this case (Ketubot 80a): A man who spends money on the property of his wife while she is still a minor, it is like spending it on someone else's property [i.e., the property owner approves of the expenditures, and the caretaker is paid like a sharecropper].
Therefore, since the husband was not confident [that he would retain the land, since the minor wife could nullify the marriage], the rabbis enacted a policy [that he be paid like a sharecropper] so that he does not ruin the property [i.e, overplant and deplete the soil in an attempt to extract profits as quickly as possible]. Here too (in the case of netushim property), the rabbis enacted a policy [that the relative be paid like a sharecropper] lest he ruin the property.
[The b'raita:] And in all these cases [of a relative placed in charge of property], we pay him as if he were a sharecropper.
What does "in all these cases" come to incude? To include that which Rav Nachman said in the name of Shmuel: We place a relative in charge of a captive's property, but if he (the owner) voluntarily abandoned (the property), we do not place a relative in charge. And Rav Nachman himself said (as his personal opinion): One who flees is like a captive [and we place a relative in charge]. Why does he flee? If it is because of taxes [i.e., he cannot afford to pay taxes to the government] it is voluntary!? Instead, (we _do_ place a relative in charge of the property of) one who flees because he is facing the death penalty [Rashi: imposed by the Persian government for certain transgressions. The presumption is that the former would have time to make the necessary arrangements before fleeing, whereas the latter would not.]
Rav Yehuda said in the name of Shmuel: A captive who left grain (in the field) ready to be reaped, or grapes, dates and olives ready to be harvested, the court enters his property and appoints an administrator who harvests (the produce); later, they emplace a relative to care for the property. [Rashi: the court-appointed administrator is unpaid.]
[The gemara asks:] Let them (the court) appoint a permanent administrator! [If the administrator is not paid, why not place him permanently in charge of the captive's property?]
[The gemara answers:] We do not appoint administrators for adults. [Rashi: Administrators for the property of minors are relatively easy to find, since the caring for orphans is a mitzva. But it is much more difficult to find an unpaid administrator for an adult's property.]
Rav Huna said: We do not place a minor in charge of a captive's property [Rashi: even if the minor is the relative who stands to inherit the property if the captive dies] nor do we place a relative in charge of a minor's property or the relative of a relative [see below] in charge a minor's property. [Rashi: because the minor is not likely to defend his rights against claims of inheritance by the relative. It would be better to place it in the charge of a stranger, who can make no such claim.]
We do not place a minor in charge of a captive's property, lest he ruin it. [Rosh: He is incapable of working it himself, and if he puts it in the hands of a sharecropper, the latter will exploit it to the limit.]
We do not place a relative of a relative in charge of a minor's property, (this refers to) a maternal brother, because (the child) will not protest an illegitimate claim and (the maternal brother) will gain possession of the property.
[Although the maternal brother has no direct claim to his brother's property, it is hard to regard him as "a relative of a relative". He is forbidden to take charge of his brother's property _as a genuine relative_, because - as explained below - it would be easy for him to make a (real or spurious) claim to it. Rashi, and most of the other Rishonim, understood "a relative of a relative" to be a sufficiently distant relative that he might be considered, at first, to be _a stranger_, and thus a legitimate caretaker of the minor's property. They therefore interpreted "maternal brother" to mean the maternal brother of the child's paternal brother.]
[Here is Rashi's explanation of the inheritance problem. The diagram illustrates the most general case:
| | | |
C)maternal bro A)paternal SON B)maternal
of paternal bro bro of SON bro of SON
SON is the offspring of the second marriage of both of his parents, each of whom has a son by a previous marriage.
A) The paternal brother inherits with SON. If the father's property has yet not been divided between his sons, there is no problem. He will take care of it in his own interest, and SON, if he reurns, will claim his share; if not, his brother will inherit it from him. However, if the property has been divided between the sons - particularly if there is no written will, the paternal brother cannot be allowed to administer SON's property, because he can claim that it is his. .
B) The maternal brother would not inherit from SON's father. However, he can claim that the property in question was MOM's m'log property, and that DAD died before MOM, in which case DAD did not inherit it from her. Therefore, MOM's son, he is joint owner with SON of the property. Therefore, he too is forbidden to administer it.
C) At first sight. the maternal brother of the paternal brother is a _stranger_ to the property, and there is no reason to exclude him from looking after SON's property. However, being the maternal brother of SON's paternal brother (the relative of a relative), there is danger that he may press the latter's claim to the property, as described above under A.]
We are now on on the second line from the bottom of p. 39b.
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