Pidyon Ha-ben

 

Translated and adapted by Rav Eliezer Kwass

  

            A father is obligated both to circumcise his eight day old son and to redeem his first-born son when he reaches the age of thirty days. What if a father does not fulfill these obligations?

 

            Though a rabbinic court ("beit din") is obligated to circumcise the child in such a situation, according to the Shulchan Arukh only a father and a son are able to fulfill the mitzva of redemption. He states (YD 305:15): "If a father transgressed and did not redeem his son, the son is obligated to redeem himself when he gets older." The Rema adds, "Some write that the words "not redeemed" ("eino nifdeh") should be written on a silver plate and hung around the child's neck so that he will know that he must redeem himself when he grows up."

 

            The poskim argue about whether others (a rabbinic court or perhaps a third party - see below) can redeem the son if his father has not done so. The Ma'adanei Melekh (=Divrei Chamudot) commenting on the Rosh in Bekhorot (8:17) believes, like the Shulchan Arukh, that in the absence of a father the only available option is for the son to redeem himself. The Shakh (YD 305:20) rules that it is preferable that a rabbinic court redeem him when he is still young, lest the silver plate not survive the years.

 

Basis of Dispute:

 

            This dispute is related to three issues:

1. What is the nature of the son's obligation to redeem himself?

2. What is the nature of the five shekel payment of pidyon ha-ben?

3. More broadly, does "zekhyia," the principle that one may act for another's benefit without his explicit consent, apply to a minor?

 

1. Redeeming Oneself:

 

            The Divrei Chamudot and the Taz differ regarding the child's obligation to redeem himself. The Divrei Chamudot's position is that this obligation does not apply before the age of thirteen. According to the Taz, though, the mitzva does apply, but no one else can fulfill it for the child. The Shakh, disagreeing, maintains both that the child is obligated to redeem himself and that the rabbinical court can act on his behalf.

 

            The Chatam Sofer writes (Responsa YD 295) that according to the Ma'adanei Melekh there are two separate commandments involved in pidyon ha-ben. The first is for a father to redeem his first-born son. The second is for a first-born to redeem himself. The rules of these two commandments differ.  Whereas the mitzva of the father begins when his child is a month old, the son's mitzva only begins when he is thirteen.  Just as a father's redeeming a son before he reaches the age of thirty days is meaningless, so is the redemption by a third party of the child before his thirteenth birthday. Therefore, in the absence of a father, a son cannot be redeemed until he grows up.

 

            Rav Moshe Feinstein's approach in his Dibrot Moshe (Bava Kama 26:4) is similar to that of the Chatam Sofer, but he views both the father's and the son's obligation to redeem as one mitzva. His rationale for not redeeming a son in the absence of his father is that until the child grows up the obligation does not exist. Since a child under thirteen is not obligated to do mitzvot, the mitzva of pidyon ha-ben for this unredeemed son does not devolve upon anyone yet and hence, is non-existent.

 

2. The Nature of the Payment:

 

            The Gra (YD 305:17) rules that even though ideally a father should redeem his son, anyone can in fact perform the redemption. There is no need to act as an agent ("shaliach"); there is not even any need for the father's consent. The five shekalim of pidyon ha-ben is basically a financial obligation that a first-born owes the kohen. Anyone can pay it, just as anyone can pay back another's loan for him. Though the father has a MITZVA to redeem his son, the monetary aspect of pidyon ha-ben can be fulfilled by anyone. According to the Gra, even in the absence of a father, when the obligation devolves upon the son, anyone can pay back the son's loan to the kohen.

 

            The Rema, Taz, and Shakh, however, all agree that only one obligated in the mitzva can redeem the first-born; pidyon ha-ben involves more than the payment of a loan. 

 

3. Benefiting a Minor:

 

            The Taz and the Shakh agree that a father can pass on the ability to redeem to another, unlike the Rema who rules that pidyon ha-ben cannot be performed through an agent. The Taz and Shakh differ, though, on whether one can act on behalf of the young child. According to the Shakh, we redeem the child in the absence of his father for fear of him neglecting to do it himself when he grows up. According to the Taz, no one can act on the child's behalf. 

 

            Though the Taz recognizes the ability to act for a child's benefit ("zakhin le-katan"), he claims that redeeming a child instead of letting him do it himself when he grows up is not to his benefit. A person would rather do a mitzva with his own money than have it done for him by others. This is behind his objection to the Tzeida La-derekh's opinion (end of parashat Bo) that permits redeeming a child based on "zakhin le-katan."

 

            Rishonim differ about legal acts done for the benefit of a child ("zakhin le-katan"). Key sources in the discussion are the two versions of the text of Bava Metzia 71b.  According to one version such an act takes effect on a biblical level, while according to the other it is only recognized on a rabbinic level.

 

            The Tosafot (Ketubot 11a) offer two explanations for why acts done for the benefit of a minor do not take effect on a biblical level. 

 

            The first assumes that the ability to act for the benefit of another without express consent ("zekhyia") is based on the institution of agency ("shlichut"). It is understood that one would appoint another as an agent for his benefit, so no express agreement is needed. Since agency does not apply to children, zekhyia does not either.

 

            According to the second opinion quoted in Tosafot, agency applies to children, but only where it is totally for the child's benefit. Agency only takes effect when there is either actual or implicit consent. We can only assume the child will consent if there are no negative aspects to the act done on his behalf.

 

            The Ramban views benefiting ("zakhin") as distinct from agency ("shlichut"); to him, it is an independent halakhic category. In his comments on the talmudic passage (Gittin 52a) dealing with the guardian ("apotropos") of a young orphan's estate, the Ramban explicitly states that "zekhyia" for children does take effect.

 

            The Taz rules like the second answer in the Tosafot, that benefitting only works for a child when there are no negative consequences, whereas one can benefit an adult without his consent even if there are unwanted side effects. It follows that one cannot activate the mechanism of zekhyia to redeem a child whose father has not redeemed him.

 

            The Shakh in his "Nekudot Ha-kesef" (glosses on the Taz) opposes the Taz on three issues: how to define a benefit; how to rule about benefitting for a child; and the legal basis for being able to redeem another's child.

 

A. Defining "Benefit"

 

            The Shakh believes that we can accept the second approach quoted by Tosafot yet still redeem him through the mechanism of zekhyia. According to the Shakh, not being able to redeem himself later is not considered a negative side effect. (The Taz had quoted "A person prefers to do a mitzva with his own money" in this context, to show that redeeming the child is not solely beneficial.) Furthermore, says the Shakh, the child can, in fact, do the mitzva himself if we use his money to redeem him or give him money which is then used for the redemption.

 

            The Shakh here assumes that we can use the child's money to redeem him. The Taz and the Tzeida La-derekh apparently believe that he can only be redeemed with other people's money. [For a discussion of benefitting that entails taking from another person see the Ketzot Ha-choshen 245:8.  Concerning whether giving the kohen the money is considered taking from the child or simply delivering money that already belongs to the kohen, see the responsum of the Netivot printed in the Chemdat Shlomo (YD 32).]

 

B. Benefitting a Child

 

            The Shakh also rules differently than the Taz about benefitting a child. The Taz rules like the Tosafot that one can only benefit a child in very limited circumstances, where there is pure benefit with no negative side effects. The Shakh believes that the rules of zekhyia for a child are no different than those of an adult (in line with the simple reading of Kiddushin 42a). Even if preventing the son from redeeming himself were to be considered detrimental (like the Taz says), the Shakh would still claim that benefitting can be applied. This is akin to one's ability to separate teruma from his friend's field through the mechanism of zekhyia without worrying about depriving his friend of a mitzva and the principle that "A person prefers to do a mitzva with his own money."

 

            The Shakh's approach is identical with that of the Ramban on Gittin 52a, that the mechanism of zekhyia applies to a child like it does to an adult and one can even take from a child if it is to his benefit. According to the Ramban, the ability of the guardian of orphans to separate terumot and ma'asrot, and to buy and sell on their behalf is based on the mechanism of zekhyia. [The Shakh quotes the Rashba in Gittin although the Rashba actually does not seem to be basing himself on benefitting.]

 

C. Legal Basis for Redeeming

 

            The Shakh even denies the need to apply the standard rule of benefitting to redeem a child whose father has not done so.  Based on Kiddushin 42a, the Shakh rules that a rabbinic court has the authority to invest the property of orphans in order to help them profit. Therefore, even if in this case we would not be able to employ benefitting because of the loss involved, the rabbinic court could still redeem the child.  Such action would be limited to the court; no individual is allowed to deprive orphans of their property in order to better them. 

 

            This seems to be the opinion of the Rashba in Gittin 52a, that the guardian of orphans has free reign over their property to sell, buy, and separate terumot and ma'asrot without relying on the mechanism of benefitting. The Rashba (Nedarim 36b) explicitly writes that benefitting does not apply to taking off terumot and ma'asrot from another's property using that other's produce. The Rashba must believe that the guardian of an estate has a unique status based on Kiddushin 42a: "Said Rabba, son of Rav Huna in the name of Rav Gidel who quoted Rav, 'How do we know that the court appoints a guardian to help orphans divide up their father's inheritance ... with the power of even investing their money?  It is written [concerning dividing up the land of Israel], 'Take a prince from each tribe'."

 

Halakhic Decisions:

 

            The Acharonim differ about how to decide in our case:

 

1. The Arukh Ha-shulchan writes that it is customary to redeem the child, following the ruling of the Shakh.

2. The Chatam Sofer (YD 295) writes that it is best for the court to redeem the child using the child's own money.  Otherwise, money should be given to the child then to a kohen on the child's behalf. The money may be given on the condition that it be returned ("matana al menat le-hachzir").  The blessing over the pidyon is said without mentioning God's name and His royalty ("shem u-malkhut"). Then, when the child grows older he should redeem himself.

3. Rav Moshe Feinstein z"l, in Igrot Moshe (YD 94), is inclined to say that there is no special need to redeem a son whose father did not. However, if one wants to do it, the instructions of the Netivot below should be followed.

4. The Netivot (printed in Chemdat Shlomo YD 32) writes, like the Chatam Sofer, that the child should be redeemed at thirty days and should later redeem himself as an adult. He says to follow the custom brought by the Rema of wearing a silver plate around his neck as a reminder. The money is given to the kohen on the condition that if the child redeems himself when he gets older it will retroactively be considered a present; if he does not redeem himself as an adult, the money will have been given for redemption. "The more that can be done to enable keeping a mitzva, the better." 

 

 

[Adapted from Daf Kesher #373, Shevat 5753, vol. 4, pp.296-298.]