Talmud - Arachin 22b ערכין כ״ב ב׳

The Gemara attempts to determine the correct reason why the court does not attend to the property of minor orphans: We learned in the mishna that one proclaims the appraisal of the property of minor orphans that is being sold for thirty days, and one proclaims the appraisal of consecrated property for sixty days, and one proclaims it in the morning and in the evening. The Gemara asks: What are we dealing with here? If we say that the mishna is dealing with a gentile creditor who is unwilling to wait until the orphans reach majority, will he comply with the court’s directive that the appraisal of the property be proclaimed for thirty days before it is sold? Rather, it is obvious that the mishna is dealing with a Jewish creditor.

The Gemara concludes its proof: Granted, according to the opinion of Rav Huna, son of Rav Yehoshua, who says that the court does not attend to the property of minor orphans due to a concern that their father might have left bundles of coins with the creditor, he can establish the mishna as referring to a case where the one obligated to pay, i.e., the father, admits before his death that he has not paid. In such a case, the court does not wait to collect payment until the orphans reach majority. But according to the opinion of Rav Pappa, that the court does not attend to the property of minor orphans because they are not obligated in the mitzva to repay a loan, the mishna poses a difficulty.

The Gemara explains that Rav Pappa could say to you: If you wish, say that the mishna is referring to a case where the court sells the property of the orphans in order to collect payment for a marriage contract, which the court does for the sake of favor, i.e., in order that the wife will own property and be desirable for marriage. And if you wish, say instead that the mishna is dealing with a gentile creditor who accepted upon himself to adjudicate in accordance with Jewish law. He therefore agrees to delay collection for thirty days.

The Gemara objects: If he accepted Jewish law upon himself, then let him wait for the orphans until they reach majority before demanding payment of the loan. The Gemara explains: The mishna is referring to a case where he accepted Jewish law upon himself for this matter, to delay collection for thirty days, but he did not accept it upon himself for that matter, to wait until they reach majority.

The Gemara suggests: Come and hear a proof from a baraita: When one proclaims the appraisal of the property of orphans, he announces that the property is being sold in order to give the proceeds to a wife as payment of her marriage contract, or in order to give a creditor payment of his debt. The Gemara asks: What are we dealing with in the baraita? If we say that the baraita is referring to a gentile creditor who is unwilling to wait until the orphans reach majority, will he comply with the court’s directive that the appraisal of the property is proclaimed for thirty days before it is sold? Rather, it is obvious that the mishna is referring to a Jewish creditor.

The Gemara continues: Granted, according to the opinion of Rav Huna, son of Rav Yehoshua, he can establish the mishna as referring to a case where the one obligated to pay admits before his death that he has not paid. But according to the opinion of Rav Pappa, granted, the court collects payment of a marriage contract for the sake of favor; but the fact that they sell the property in order to pay a creditor poses a difficulty.

The Gemara responds: Actually, the baraita is dealing with a gentile creditor, and is it referring to a case where he accepted upon himself to adjudicate in accordance with Jewish law. He therefore agrees to delay collection for thirty days. The Gemara objects: If he accepted Jewish law upon himself, then let him wait for the orphans until they reach majority before demanding payment of the loan. The Gemara again explains: The baraita is dealing with a case where he accepted Jewish law upon himself for this matter, to delay collection for thirty days, but he did not accept it upon himself for that matter, to wait until they reach majority.

Rava says: The court does not collect payment from the property of minor orphans due to the concern that there might be a receipt, i.e., perhaps their father repaid the loan and received a receipt attesting to his payment and the orphans are unaware of its existence. Rav Huna, son of Rav Yehoshua, said to Rava: But are we concerned for the existence of a receipt? Didn’t we learn in a mishna (Ketubot 87a): A woman who collects the payment of her marriage contract from the property of her husband when not in his presence, e.g., if her husband is overseas, may collect only by means of an oath that she has not yet received payment.

And Rabbi Aḥa Sar HaBira says: An incident came before Rabbi Yitzḥak Nappaḥa in Antioch, and he issued a ruling and said: They taught this halakha, that she may collect the payment of her marriage contract in her husband’s absence, only with regard to the wife’s marriage contract, for the sake of favor. But a creditor does not have the right to collect the debt that is owed to him in the debtor’s absence. And Rabba says that Rav Naḥman says: Even a creditor may collect a payment by means of an oath in the debtor’s absence.

Rav Huna explains the difficulty: And if you are concerned for the existence of a receipt, then in that case there as well, where the obligated party is overseas, let us be concerned that he has in fact paid the debt and received a receipt. Rava said to him: In that case there, one is not concerned about the existence of a receipt, in accordance with the reason that we say: It is in order that there should not be a situation where every person will take the money of another and go and reside in a country overseas, to prevent the creditor from collecting the money from his property.

§ Rava says: The halakha is that the court does not attend to the property of minor orphans in order to pay the debts owed by their father. But if their father said before his death: Give so-and-so the payment of my debt, the court attends to their property. Specifically, if the father said: Give this field to so-and-so, or: Give this one hundred dinars to so-and-so, then the court attends to their property to collect payment, and the court does not install a steward [apotropos] to negotiate with the creditor on their behalf. If he said: Give a field to so-and-so, i.e., an unspecified field, or: Give one hundred dinars to so-and-so, i.e., unspecified dinars, then the court attends to the property of the orphans and they install a steward to act on their behalf, to ensure that the best fields remain in their possession.

By contrast, the Sages of Neharde’a say: In all of these cases where the father told his children before his death to give an item, the court attends to the property of the orphans and they install a steward to act on their behalf, except for a situation where a field is found in their possession with regard to which witnesses have testified that it is not their father’s, but is in fact stolen. In such a case, the stolen field is seized and returned to its owner without recourse to a steward, as we do not presume that witnesses are liars.

Rav Ashi says: Therefore, we do not attend to the property of minor orphans in order to repay a standard loan, as Rava says: The halakha is that the court does not attend to their property. And if we attend to their property, e.g., in a case where the father told his children to repay the debt, we install a steward to act on behalf of the orphans, as the Sages of Neharde’a say: In all of the cases, the court attends to the property of minor orphans and installs a steward, except for a situation where a field is found in their possession that is not the father’s, as we do not presume that witnesses are liars.

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

Arachin 22b examines why courts delay selling orphans' property for creditors, weighing Rav Huna and Rav Pappa's differing views on debt collection and marriage contract sales.