Over the last few pages, we have engaged questions related to the handling of property abandoned or entrusted to a guardian that might suffer damage if not dealt with. When do we intervene to prevent damage and when do we avoid doing so, either out of concern for the owner’s preferences or the possessor’s potential ill intent?
On today’s daf, the rabbis are in the midst of a discussion about the conditions under which we allow people to attend to the property of a person taken captive or property that has been abandoned. Some additional restrictions are added:
- We do not allow a minor to handle a captive’s property, for fear they are incompetent and will decrease its value.
- We do not allow a relative to handle the property of a minor, for fear the relative may falsely claim ownership and the minor won’t know how to protest.
- We do not allow the relative of a minor’s relative to handle that minor’s property, for fear they’ll collude with the minor’s direct relative.
The Gemara then considers how these restrictions operate in a real-world scenario:
There was a certain old woman who had three daughters. She and one daughter were taken captive. Of the other two daughters, one died and left behind a minor (son). Abaye said: What should we do?
Any way we look at this situation, there’s a potential problem. If we assume the old woman is dead and put the surviving daughter in control of the property, then she would also be handling property her nephew inherited from his mother when she passed, and we don’t allow relatives to handle the property of a minor. If we put the minor in control of the property, there is also a problem, as perhaps the old woman didn’t die and a minor can’t manage the property of a captive.
Ultimately, the dilemma is solved by either (according to Abaye) giving half the property to the surviving sister and half to a steward who will manage it on behalf of the minor, or (according to Rava) giving all of it to a steward until the matter is clarified. The institution of a steward is the default method for handling the property of minors, ensuring it is dealt with by someone who is both competent and neutral.
The Gemara relates that they later learned the old woman did, in fact, die, meaning her children and grandchildren inherit from her. However, it remains uncertain whether the sister taken captive remains alive. This leads Abaye and Rava to propose new solutions. Abaye says the living sister is given a third, her nephew is given a third, and the final third is split — half (or one-sixth of the total) goes to the surviving sister, for it is either hers (if the captive sister is dead) or property she’s comptent to manage (if her sister is alive); and one-sixth goes to a steward, for it belongs to the nephew if the captive sister is dead but it must be managed by a steward if she’s alive. Rava maintains the same approach he had above: If part of the property in doubt is given to a steward to look after, all of it should be given to a steward. Therefore, a steward takes care of the final third until the captive sister’s status is clarified.
While this may seem even more in the weeds than our debate about rotting produce, it’s an example of one of Seder Nezikin’s most classic dilemmas: figuring out how to balance competing economic concerns. Just as we saw in the case of loans, the rabbis are constantly negotiating how to prevent overly predatory lending while ensuring loans are still collectible enough that people are willing to offer them, so too here, they’re trying to limit unnecessary property loss while mitigating the possibility of people exploiting situations to their own benefit.
This concern becomes even more pronounced when we factor in the example of minors, who we don’t consider to be fully competent actors: How do we establish systems that handle property responsibly and profitably while protecting the rights of minors who can’t yet advocate for themselves?
Read all of Bava Metzia 39 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on April 7th, 2024. If you are interested in receiving the newsletter, sign up here.
