Shabbat Parashat Shoftim| 5766
From the works of Hagaon Harav Shaul Yisraeli zt”l - A Deaf - Mute’s Obligation to Support His Children - From Chavot Binyamin, vol. II, siman 43
Rav Y.S. Elyashiv [who was a judge on the Israeli Supreme Rabbinical Court along with Rav Yisraeli] understood as a simple matter that a deaf-mute (cheresh) does not have the regular rabbinic obligation to support his children. (The base-level obligation, which extends until the age of six, is brought in the gemara, Ketubot 49b). Rather, one can only discuss the matter in terms of the mitzva of tzedakah. [We do not have further details on Rav Elyashiv’s approach to the matter.] The following is Rav Yisraeli’s contrary opinion.
One can argue that a cheresh is obligated to support his children like other people, despite the fact that he is not obligated in mitzvot. We can justify this stand both with logic and with sources. There is a machloket between the Rosh and the Ran whether one who has a child out of wedlock is obligated to support the child. The issue is whether the father’s obligation stems from assumed responsibilities that he obligated himself to his wife when they married or whether they are natural obligations of fatherhood. We accept the Rosh’s opinion that the father is obligated to support his child by force of the very fact that he is a father, regardless of any commitments. Thus, a cheresh, who is a father like anyone else, should logically be obligated.
In the gemara (Ketubot 48a) Mar Ukva says that if one becomes mentally incompetent (shoteh), beit din take from his resources in order to support his family. The Rambam (Ishut 2:17) seems to apply this statement to the case of children under the age of six, where there is a full rabbinic obligation. Even the Magid Mishneh, who says that there continues to be an obligation because of tzedakah, agrees that Mar Ukva’s statement applies first and foremost to the basic obligation, until six. So we see that the regular obligation does apply to someone who is not considered mentally fit enough to have regular obligations. The same, then, should apply to a cheresh. Rav Elyashiv deflects that proof by saying that there his resources are taken because he obligated himself while he was competent. But if that were correct, we should have found a distinction between if the children were born before or after he became a shoteh. It also does not make sense that an obligation that took place when the children were born should continue indefinitely when he no longer has obligations, according to Rav Elyashiv’s approach.
It is true that other Rishonim differ with the Rambam and explain the obligation Mar Ukvah referred to as being for children who are above the age of six. However, one can demonstrate that they agree with the thesis we have set forward, as we shall explain.
The gemara deals with an apparent contradiction between beraitot on the question of whether we dip into the resources of a husband/father who is no longer in the position to provide the provisions himself. The Shita Mekubetzet says that the gemara could not have said that one baraita is talking about a case of the children being above six and another baraita about a case of children below six, because it is obvious that he is responsible when they are below six. However, if Rav Elyashiv were correct that the obligation exists only because it began before the father became exempt and continues on, then this would not be obvious at all. After all, we might have thought that each day’s obligation is a new entity. Rather it must be that there are no such distinctions. Rather, the rabbinic obligation to support children under six is unconditional, and does not depend on the father being mentally competent enough to assume other monetary or religious obligations.
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