Question: If someone passes away suddenly and leaves behind a considerable estate, who is in charge of that estate according to Halacha?

Answer: If there are adult children, they take over the estate. If the children are minors, an apotropus can be appointed to serve as the executive of the estate.

There are four ways to appoint an apotropus:

The best way would be if the father appointed the executor before his passing. This apotropus can make decisions in regard to the estate even once the children get older and whatever he does on their behalf is binding. Whether and how they can depose him if they so choose is a separate discussion.

If the father did not appoint anyone for this position, Bais din can step in and appoint an apotropus as long as the children are ketanim. One difference between the father and a bais din is that the father can appoint anyone he chooses, even a non-Jew, to be the executor, whereas bais din can only appoint a person who meets very specific criteria.  Additionally, only a bais din that is appointed by the city or one that is comprised of Gedolei Hador can appoint an apotropus, so it would be tricky to do that nowadays.

A third possibility is called “yesomim shesamchu”. If someone steps forward and begins looking after the estate, and the orphans rely on him, he gets the status of apotropus. This could be their mother or uncle or really anyone they rely on to act as the de facto executor.

A fourth option is a court-appointed executor, which is recognized by halacha because of the rules of dina d’malchusa dina and minhag. A legal executor will have the halachic status of an aputropus and will be recognized in Bais din. This is usually not an issue arka’os because the problem of arka’os is when a dispute between two Jews is taken to be settled in a secular court. In this instance, it is a legal matter that we need to find someone whom the banks and the like will recognize as an authority; therefore, we work with the system and whomever they appoint as executor becomes the apotropus and has the right to buy and sell on the orphans’ behalf. 

Rav Baruch Fried

Question: One of the people who is considered by halacha to be unable to participate in commerce is a “cheresh”. I have a business partner who is deaf and hears through a cochlear implant. Does he have the status of a cheresh?

Answer: Generally, this question is not so relevant because just like there is a takanah of Chazal that a child who understands commerce can engage in business transactions, so too, Chazal enacted that a cheresh who understands commerce can be involved in business. The one exception, however, is real estate. A true cheresh cannot engage in property transactions.

If someone with a cochlear implant is involved with real estate, we would have to determine if he is considered a cheresh.

Acharonim have long dealt with the question of someone who is technically a cheresh yet is obviously smart and acclimated. As a rule, they are hesitant to say definitively that such a person can ever have the status of a pikeach.

In other areas of halacha, if someone cannot hear but he can speak, many Rishonim say that he is considered a pikeach according to halacha. Again, however, they say that real estate is an exception and he cannot engage in transactions involving property.

Rav Moshe Feinstein has a teshuva about a person who can speak but cannot hear at all without the aid of a machine (similar to a cochlear implant). He says that such a person is in the category of a medaber v’aino shomea, he can speak but cannot hear, which renders him a regular bar daas for all matters with the exception of doing commerce with real estate.

This means that even if the person understands real estate very well, he technically still has the status of a cheresh and he cannot sell or buy properties. Essentially, an apotropus would have to be appointed to manage his transactions on his behalf. The laws of who can and cannot be an apotropus are complex but if he has a business partner, that partner might become his de-facto executor and make deals for him.

Even without an apotropus, if a cheresh does sell karkah, the deal is valid as long as no one protests. If the parties are worried that someone may protest at some point in the future and negate the deal, they should technically have an apotropus appointed to mitigate this concern. 

Rav Baruch Fried

Question: A bochur spent a summer working in a camp. At the end of the summer, he goes over to the director and asks for his pay. The director informs the boy that his father still owes the camp money, so he is withholding his paycheck to cover the balance, and he should feel free to ask his father to pay him directly. Can the camp do that?

Answer: First of all, it is definitely not a good way to be mechanech.

The camp’s justification may be based on Shibudah d’Rebbi Nosson. The director could be saying we owe you money and your father owes us money, so you can get your payment from him. 

That is clearly wrong. Shibudah d’Rebbi Nosson means that if someone owes you money and that person doesn’t have money to pay, the creditor can go to a person who owes the debtor money to collect from him instead. It does not mean that a debtor who does have money to pay can tell his creditor that he isn’t going to pay him because someone else owes him money and he should go collect from that person instead.  

If the camp’s argument is that the son’s wages actually belong to his father, that might be a better claim. There is a big machlokes amongst the Rishonim regarding whether a father has the right to the wages of his adult child who are being supported by him. The Rema rules that he does. Accordingly, the camp may claim that since the son’s wages really belong to his father, and his father owes the camp money, they are keeping those wages as payment for the money they are owed. 

The counterclaim to that would be that the father’s right to the son’s wages is not a din d’ohraysa. Rather, it is a takanas chochomim that was put in place to prevent eivah, i.e. if the father is supporting his son, and the son is making money and keeping it for himself, this could lead to enmity from the father towards the son. Therefore, the chochomim decreed that the son’s earnings can be claimed by the father.  

Since this is a takanas chochomim for the father’s benefit, so long as he is not interested in taking possession of the son’s wages, they rightfully belong to the son. Thus, it would seem that the boy would have the right to take the camp to a din Torah to demand his paycheck. 

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