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Shabbat Parashat Vayeilech 5776

Pninat Mishpat: Buying Oneself Back from the Chevra Kaddisha

(based on Shut Chatam Sofer, Choshen Mishpat 111)

Case: Yaakov’s children died, and when he subsequently had another son (Reuven), he “sold” his son to the Chevra Kaddisha for five gold coins. The condition was that if Reuven lived and merited to get married, Yaakov would give the Chevra Kaddisha ten gold coins to “buy him back.” Yaakov also promised to give the Chevra Kaddisha a small amount of money on a weekly basis throughout his son’s lifetime. Reuven is now twenty seven years old, Yaakov has been dead for some time, and nothing has been given to the Chevra Kaddisha. Reuven now wants to get married, but the Chevra Kaddisha is protesting his right to get married until he pays them. Reuven points out that Yaakov died without enough money to even pay Reuven’s mother’s ketuba so that he has not inherited any money from which to make payment for his father’s promises.

 

Ruling: If Yaakov had left an inheritance, then the matter would be the subject of a machloket between the Rambam, who rules that the sons must use it to pay their father’s oaths, and the Mordechai who says that he does not have to. However, if he did not leave behind any real estate from which payment can be taken, it is clear that the sons are not obligated to pay their father’s oaths. Therefore, the promise of weekly payments is certainly not Reuven’s issue.

We must understand what it means to sell one’s son. It is obvious that one cannot literally sell his son, nor can he set him aside for the use of hekdesh. The only vaguely similar type of sale of a person is the earning power of one’s daughter or the ability to have her married by her master until she becomes a halachic adult. However, a person himself or herself cannot be sold or owned by someone else.

Even when a father “redeems” his son by payment to a kohen, he is not buying him back but fulfilling a mitzva to pay money in that setting. If no one redeems the boy, he is not owned by the kohanim and is not holy in any way. Although in the narrative of a pidyon haben, we ask the father if he would prefer to have his son or leave him as is, that is just to show love of the mitzva, as halachically there is no choice to make (see Rama, Yoreh Deah 305:10).

The minhag to sell the child in Yaakov’s circumstances is a practice that emanates from the fear that there is a decree that his children will die. This “sale” is to make the children attributable to someone else to extricate them from the decree. We find people who were attributed to people who were not their parents (e.g., Serach bat Asher was Asher’s step-daughter).

So, if Yaakov did not “buy back” Reuven, he can be “considered the child” of the chevra kadisha. However that does not mean that the Chevra Kaddisha can prevent Reuven from getting married, just as a father cannot prevent his son from doing so (see Rama. YD 240:25). It would be a sin for the Chevra Kaddisha to try to delay a marriage for even a short time. On the other hand, since the Chevra Kaddisha helped to protect Reuven and enable him to reach the time of his marriage, he should try to show his thanks with payment according to his capabilities after he marries.

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