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Shabbat Parashat Nitzavim 5775

Pninat Mishpat: Straying from a Fathers Instructions on Supporting Torah Study

(based on Chatam Sofer, Choshen Mishpat 108)

Case: Yaakov instructed that 400 gold coins from the estate he leaves should be given to his son (Reuven), who should use the earnings from the fund to give 20 gold coins a year to be divided among two Torah learners who will learn regularly in his house. Reuven hired three such people, with the intention of splitting up the same 20 coins three ways. Is that a violation of Yaakov’s instructions?


Ruling: The concept of mitzva l’kayem divrei hamet (it is a mitzva to fulfill the instructions of the deceased) applies only if he set aside specific coins (Shulchan Aruch, Choshen Mishpat 252:2). If so, the instructions can only be binding based on the concept of the instructions of a schiv meira (one who is on his death bed). Since the profits from the 400-coin fund are not yet in the world at the time of Yaakov’s statement, a kinyan to the poor or other tzedaka is not possible on them (Rama, CM 21:7). While one can obligate himself as an oath even regarding things that do not yet exist, that oath does not take effect on his inheritors.

This is even clearer when Yaakov did not even specify who he wanted the recipients of the grant to be. We find that the Maharik (5) and the Maharit (24) say that an inheritor can make changes in the pledges as he desires. I have written elsewhere that the recipient should just remain one that is considered mitzva-related, which will be a help for the soul of the departed. Therefore, even though Yaakov intended that each recipient would get a larger portion, Reuven can change it so that the sum will stay the same and there will be more recipients receiving smaller amounts. In fact, there are sources that it is better to divide tzedaka among a greater number of recipients (Magen Avraham 695:12).

It is important that when he enlisted the Torah learners, Reuven told them just that they were to learn to elevate the soul of his father and not that he was hiring them according to the instructions that his father left. In the latter case, since Yaakov said that each one would receive 10 gold coins yearly, that is what they should receive. Even though Yaakov said that only 20 coins a year would be given, and in this case 30 will have to be given, it is like a case of someone who told workers to do work for his friend without the friend’s authorization. In that case, the authorizer pays the worker and the recipient of the benefit pays him back (Bava Metzia 76a). Thus, Reuven would pay from his own pocket this year, but could reimburse himself from next year’s profits from the 400-coin fund. It is okay that this will cause less money to be given in the future as long as there will still be learning for the sake of Yaakov’s soul.

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