Abstracts

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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