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Shabbat Parashat Vayakhel Pekudei 5775

P'ninat Mishpat: Charging an Orphan He Raised

(based on Shut Rabbi Akiva Eiger I:147)

Case: Reuven supported a young orphan for an extended period of time without stipulations. Recently he seized funds from the orphan, which he claims for payment of past expenses. Can Reuven keep the funds?


Ruling: Most poskim rule that, generally, after feeding another for a period without stipulation, one can demand payment from the recipient. For example, the Ran (Ketubot 107a) cites the Rashba that that which one who supports a married woman cannot demand her to repay him is only when he stated he was supporting her on her husband’s behalf. The Maggid Mishneh explains that even the Ran argues only because she has a husband to support her and so she need not pay anyone who takes his place. However, if Shimon feeds Levi, under normal circumstances, Shimon can demand repayment (see Mishneh Lamelech, Ishut 3:8). The Maharit (Even Haezer 43) is one of the few who argues and considers the support a present.

However, one who supports an orphan has less ability to make back claims. The Rif is cited as saying that unless one stipulated he was only loaning support for the orphan, he cannot demand payment repayment, and the Beit Yosef (Yoreh Deah 253) cites Rabbeinu Yerucham similarly. This appears to be the case even when the orphan inherited property that could have been used for his support.

Although one can read the Rashba as arguing with the Rif, the fact that the Shulchan Aruch (Choshen Mishpat 290:25; YD 253) cites the ruling of each indicates that he viewed the opinions as compatible. The likely reconciliation is that when someone takes care of all of the orphan’s needs, he has a status of an aputropos, who has the right to reimbursement. But in the case of partial support, we accept the Rif’s ruling that the supporter cannot demand compensation. This determination is clear enough to allow bein din to remove the seized payment from Reuven.

The Beit Yosef (CM 128) says that the Rif does not apply if the orphan is a minor because, in that case, the fact that the supporter did not inform the orphan of his expectations is not telling. However, since the Rif explicitly discussed a case of minors, the Beit Yosef must be referring to very young children. We have to assume that even a very young child can become obligated as one who received support as a loan, even though he is not legally liable enough to become obligated to repay a regular loan. In our case, the orphan was old enough to become obligated.

The Beit Yosef’s distinction is difficult, as even if it is not possible to inform small children of one’s future claims, he can inform beit din. Rather, the logic of exempting an orphan is the assumption that one gave the money as a mitzva to support orphans.

In our case, even though some of the support was given when the orphan was very young, Reuven continued to support him without comment when he was older. Just as the Beit Yosef agrees that the orphan is exempt at the older age, we can also see that his intention was the same earlier. This is even more obvious if Reuven is a relative. The exception would be if we know of the seizure of the funds only based on his admission. Then we might be able to say that since Reuven could have denied the seizure, he is believed (based on migo) that he provided the support with an intention to demand repayment.



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