GUARDIANSHIP
J. Greenfield and S. Applebaum, "Israel Museum Exhibit Reveals
Wife and Mother from Bar Kochba Period", Biblical Archaeology Review
7:4 (1981), 12. - This note contains the first English translation of a
complete document from the Babata Archive. The document, in Greek and Aramaic,
deals with thrice-married Babata's attempts to change the court-appointed
guardian of her "orphan son" or assume the guardianship herself.
(S.N.R.)
K. Reinitz, "Appointment of a Woman as a Guardian", Bar
Ilan Law Studies 4 (1985), 167-203. - The Talmud imposes no restriction
on the power of appointment of a guardian by a father, inheritor, or natural
benefactor for an orphan. Women and slaves could not however be appointed
as guardians, by the Judiciary. The former were restricted due to an assumption
of the woman's basic domestic position rendering her unqualified to manage
economic affairs of orphans put in her charge. R shows that this reasoning
allowed the woman to be a guardian when specific reliance was placed upon
her in financial matters by her spouse during life. Thus an assumption could
be made as to a like intention of the spouse to rely upon her even after
his death. R further points to a Modern Respondent, Chief Rabbi Uziel, according
to whom the woman is fully capable of being appointed as a guardian by a
Court, even without the express or implied agreement of her husband, this
due to the changed position of women in modern society which sees women
as equally capable of involvement in financial affairs, and thus of serving
as guardian for the property and welfare of orphans. (M.J.P.)
Y.K. Reinitz, "The Legal Standing of an Orphan's Relatives in
Jewish Law and in the Capacity and Guardianship Law, 1962" (Heb.),
Mehkare Mishpat 5 (1986), 151-180. - The author reviews the sources
of Jewish law and points out that Scripture says nothing about the treatment
of orphans and of their property. As far back as the first generation of
Tannaim, however, guardianship appears as a recognized, established
institution. The Talmud discusses the status of the relatives of
the orphan, stipulating that they must not be appointed to oversee the property
of the minor for fear that they will take unlawful control of it. The conclusion
is that, as opposed to Graeco-Roman law which advocated the principle of
"the relationship of the relative takes precedence" (so that the
relative was appointed as the child's guardian in order to protect the property
which was destined to become his when the child died), Jewish law based
its notion of guardianship on the principle of the welfare of the child.
In the period of the Rishonim, the appointment of a relative-guardian
over the movable property of a minor was permitted. It was the Aharonim,
however, who enhanced his status, in stipulating that the appointment
of a relative was to be preferred to that of a stranger, provided that his
reliability was unquestionable. They, however, have no locus standi
in a discussion of the appointment in court. Similarly, the religious court
has exclusive control over the activities of the guardian. However, in the
responsa literature, the relatives of the orphan appear as arguing
and pleading for him. The Israeli legislator severely restrained the position
of the orphan's relatives at each stage of the guardianship in that it granted
full powers to the court. The author, taking into consideration the welfare
of the child, proposes that the status of the relatives of the ward be upgraded,
for it is they who attend to his affairs - a position similar to that adopted
by Jewish law. (D.B.S.)
Y.K. Reinitz, The Guardian of Orphans in Jewish Law (Heb.),
Jerusalem, l984, Pp. 314 (Hebrew University Dissertation); see KS 59/4
no. 6010.
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