Mr. Zemer had a large collection of Jewish music cassettes. He passed away 15 years ago, leaving a young son, Yuval. Five years later, Mrs. Zemer moved. The new apartment was smaller, so she didn’t want to take unnecessary items.
The family had a close friend, Mr. Nigun, who was a music hobbyist. Mrs. Zemer turned to him and asked: “Would you like my husband’s collection of cassettes? The world is switching to CDs.”
“Very much so!” replied Mr. Nigun.
“Then please come within the next hour,” Mrs. Zemer said. “We’re moving now and don’t have room for the cassettes. Otherwise, we’ll have to dump them.”
Mr. Nigun quickly drove over. “The cassettes are sitting on those shelves,” Mrs. Zemer said. “My husband collected them, but we barely listened to them during the past few years.”
“I still have a cassette player,” said Mr. Nigun. “I’ll enjoy Mr. Zemer’s collection.” He loaded all the cassettes into his car and drove off.
Years passed and Yuval reached adulthood. He approached Mr. Nigun. “I heard that you have my father’s cassette collection,” Yuval said.
“Correct,” replied Mr. Nigun. “Your mother was going to discard the cassettes when she moved and offered them to me.”
“I would like the cassettes back!” said Yuval. “There are some collector’s items in the collection, and I still use a cassette player.”
“But your mother gave them to me!” exclaimed Mr. Nigun.
“I am the halachic heir, though,” argued Yuval. “My dear mother dedicated herself fully to raising us, but is not authorized to give away my property!”
“Why not?” asked Mr. Nigun. “Just as she made any other financial decision regarding you, why can’t she decide to give away your father’s cassette collection, which she considered unnecessary?”
Yuval and Mr. Nigun approached Rabbi Dayan and asked:
“Must Mr. Nigun return the cassette collection to Yuval?”
“A mother who tends to the needs of her orphan children, and they rely on her for their financial matters, is de facto considered as their apotropus (financial guardian),” replied Rabbi Dayan (C.M. 290:24).
“Although a minor below bar mitzvah is not halachically considered legally competent, the Mishnah (Gittin 59a) teaches that Chazal empowered a minor to buy and sell movable items so that he could procure his needs. Similarly, Chazal upheld gifts that he gave” (C.M. 235:1).
“Nonetheless, the Gemara (Kesubos 70a) qualifies that when the minor has a guardian, his transactions require the guardian’s approval. Rivash applies this also to a de facto guardian” (C.M. 235:2).
“Even so, the Rishonim rule clearly that a guardian is not authorized to grant of his own accord a gift from the orphan’s property, since it is not his and the gift does serve the orphan’s financial interests” (Responsa Rosh 85:10; Rivash #20,268; C.M. 235:26).
“Similarly, the guardian should not give of the orphan’s property as charity, unless to uphold the minor’s good name (C.M. 290:15). Furthermore, the guardian is considered a shomer on the property with which he is entrusted; if he is negligent, he is liable” (C.M. 290:20).
“Thus, if the mother discarded the heir’s cassette collection or gave it away, her unilateral gift should not be valid. If the collection cannot be returned, she should be liable. She should have sold it for whatever it was worth (see C.M. 290:9). Even so, it is possible that if she gave the collection away, since there was no room for it and seemingly had no value, her decision could be valid if there was justification for it.
“Furthermore, if her husband’s will awarded her all his property, even if only a secular will, some authorities uphold it” (see Achiezer 3:34; Igros Moshe, E.H. 1:104).
“Thus,” concluded Rabbi Dayan, “since Mr. Nigun is in possession of the collection, it is not clear that Yuval can force him to return it.”
Verdict: A parent or guardian is not authorized to give away the heir’s property without justified reason, but can sell it when not needed.