Kedoshim 5771 57 This week's article discusses the contemporary question of fulfilling promises Afikoman promises. Is there a full halachic obligation to honor one's Afikoman promise of Seder Night? Is there a difference between young and older children? Is the duress that a parent sometimes experiences in trying to retrieve the Afikoman a factor? These questions, and more, are discussed in this week's article. This week's Q & A discusses the question of stocks that were inadvertently purchased on Yom Tov. Honoring Seder - Night Pledges Among the highlights of Seder Night is the afikoman. This is especially true for children, who have adopted the custom of 'stealing' the afikoman, and ransoming it for some attractive prize. This custom is based on a statement of the Tosefta (Pesachim 10:6), that the matzah of Seder Night is 'grabbed'. The reason for this is to encourage the children to ask questions and to stay awake for as much as possible of the proceedings. Many commentaries understand the word 'grabbed' to mean that the matzah is hurried. One doesn't take his time, but gets on with the Seder (see Rashi, Pesachim 109a) so that it shouldn t get too late for the children. Others, however, write that the matzah is literally grabbed from one person to another (see Meiri, Pesachim 108b), a type of Seder Night pass-the-parcel that is sure to attract the kids' attention. The modern version of this custom is that the father puts away the afikoman matzah (the larger part of the matzah divided in Yachatz), only to have it 'stolen' by the kids, who return it in return for a promised reward. Naturally enough, the method is fairly effective in keeping children awake. In this post-pesach article, the question we wish to address is the obligation of parents to keep their afikoman pledge. A promise is, of course, a promise, and telling the truth is always Dear Readers, The opening Pasuk of our Parashah commands us in the mitzvah of kedushah: "You shall be holy, for I, Hashem your G-d, am holy" (Vayikra 19:2). According to several commentaries, the obligation of kedushah refers to the fulfillment of all the mitzvos of the Torah. The Rambam (Book of Mitzvos, Shoresh 4), for example, writes that the mitzvah cannot be counted among the list of 613 Torah mitzvos, because it encompasses the entire Torah. Rashi, in a similar vein, writes that the mitzvah instructs us to refrain from forbidden marital relations, and from other transgressions. The Ramban, however, ascribes a different meaning to the instruction of kedushah. Rejecting the interpretation mentioned by Rashi, the Ramban explains that kedushah refers to the Talmudic concept of perishus: refraining from indulgence in worldly pleasures. While commanding us in many Mitzvot, the Torah permits a person to cohabit with his wife, and to consume meat and wine, such that without
transgressing any actual Torah precept, a person could actually devote much of his time to the pursuit of personal pleasure. To ensure that he should not do so, the Torah commands us to be holy: to refrain from over-indulging in the physical gratification that the world has to offer. Both interpretations are wellsourced in Torah verses. On the one hand, the former interpretation is implied by the ensuing verses of our parashah, which detail many mitzvos, and which make repeated mention of the instruction to be sanctified: "And you shall be holy to Me, for I, Hashem, am holy, and I separated you from the nations to be for Me" (Vayikra 20:26). On the other, the Ramban reinforces his position by mentioning the law of the nazir. Because of his abstention from drinking wine a significant factor in human physical desire the nazir is dubbed Kadosh, holy (Bamidbar 6:5). How do the two interpretations go together? Mitzvos imply human immanence, whereas the abstention of the Rambam implies transcendence. Yet, it would appear that the two converge to a single point. In performing the mitzvos of the Torah, we must engage the world around us. All parts of the world, from the lifeless to the human, form the material required for mitzvah performance. Yet, in engaging the world through the prism of mitzvos, we bring an elevation to the world and to ourselves, rising beyond the mundane and physical level an important attribute. But is there a full halachic obligation to honor one's promise, or can a parent somehow extricate himself from the obligation to pay a potentially pricey afikoman ransom? The Obligation to Honor Promises The basic obligation to honor an afikoman promise is based on a ruling of the Gemara (Bava Metzia 49b), that one who does not keep his word is considered 'non-trustworthy.' Although this ruling is presented as a dispute among amora'im, Rav Papa explains that even Rabbi Yochanan, who rules that merely not keeping one's word is not considered unfaithful, agrees that a promise to give a 'small gift' must be honored. The reason for this distinction is that in contrast with a large gift, the intended beneficiary of a 'small gift' fully anticipates the fulfillment of the giver's promise. Because the recipient has complete faith in the giver's promise, the promise carries greater weight, and it is therefore obligatory to keep one's word. The Shulchan Aruch (Choshen Mishpat 204:6-7) rules in accordance with Rabbi Yochanan, explaining that the obligation to honor one's word applies specifically to the promise of a 'small gift,' but not to a large gift, whose receipt the beneficiary does not fully anticipate. Because the distinction between a small and large gift is contingent on the trust of the recipient, it follows that the term 'small gift' must be defined in the context of the particular recipient and giver. The amount for a poor giver and wealthy recipient will not be the same as the amount for a wealthy giver and a poor recipient. Torah or Rabbinic Requirement According to some authorities, the obligation to keep one's word in the case of a small gift is a full Torah obligation which is derived from the verse in this week's parashah, "you shall have a just hin" (Vayikra 19:36). Even though the simple meaning of the verse is that one must have correct measures for material we sell, the Gemara (Bava Metzia 49a) cites the explanation of a beraisa: "Your 'yes' (hen) shall be just, and your 'no' shall be just." The opinion of other authorities (including Ramban and Rosh, as based on Rif), is that Rabbi Yochanan interprets the ruling of the beraisa to mean that one may not say what he doesn t mean. The Mordechai (Bava Metzia 311-2) writes that according to this opinion, the obligation to honor promises (to give a small gift) is derived from a verse 2 Questions in all areas of halacha can be submitted to the rabbanim of our Beis Horaah at www.dinonline.org
of the prophets (Zephania 3:13): "The remnant of Israel will not perform iniquity, nor will it speak falsehood." Because the verse does not appear in the Torah itself, this would not imply a Torah obligation, but only a rabbinic requirement founded on a scriptural verse. Although the Sema (204:12) quotes the Torah verse of hin tzedek as the source of the obligation to honor one's promises, it remains possible that this does not imply a full Torah obligation. As Tosafos Yom-Tov (end of Shevi'is) writes, the reference to the verse can be understood as an asmachta, that is, a hint rather than a full source. Some authorities cite the Talmudic statement that the sages are dissatisfied with one who breaks his promises as proof that no full Torah prohibition is involved. Promises in the Absence of the Recipient As noted, the prohibition of breaking one's promise is contingent on the degree of the recipient's reliance. Based on this, there is room to question if the obligation can apply even to a promise made in the absence of the recipient. Surely, if the recipient does not know of the promise he does not rely on it, and the obligation to keep the promise would not apply? The Shulchan Aruch Ha-Rav (Laws of Sales 6) cites an explicit ruling of Shulchan Aruch (Choshen Mishpat 243:1-2), which states that the law of 'lacking faith' applies even to a promise made in the absence of the recipient, yet questions the rationale behind the ruling (Tziyunim 53). Surely, there is no reliance on the part of the unknowing recipient, and there should therefore not be any prohibition? Indeed, Peri Yitzchak (Vol. 1, no. 51) rules that "if a person makes a promise to himself that he will give a gift to somebody else, and the recipient does not know of the promise, there is no prohibition whatsoever on retracting the promise." The Machaneh Efraim (Ona'ah 28) extends this to all promises that the recipient is unaware of: "All this applies [only] when the giver informed the recipient of his intention to give him a small gift, so that he relies on the promise." Promises to Children Rav Meir Arik (Minchas Pittim, Choshen Mishpat 204:8), makes an equivalence between promises that the recipient is unaware of and promises made to children. A child lacks daas the level of cognition required for Torah legal actions and a promise made to a minor is therefore equivalent to a promise made in the absence of the recipient. He thus quotes from Mahari Algazi (Kehilas Yaakov, Tosefes Derabanan 7), who rules that breaking a promise made to children does not carry the stringency of 'lacking faith.' Questions in all areas of halacha can be submitted to the rabbanim of our Beis Horaah at www.dinonline.org 3 that meets the eye. Mitzvos give the world a spiritual dimension, an elevation that draws from the Divine light of Torah. There can be no greater contradiction to the point of mitzvah performance that immersion in the physical. Mitzvos might engage the world, but they do so only to bring it spiritual elevation, to give it meaning beyond its coarse physical representation. Somebody steeped in the physical cannot approach the world from the perspective of mitzvos. The kedushah of mitzvos, and the kedushah of the Ramban, go hand in hand. As we were brought out of Mitzrayim, we achieved, to some measure, the kedushah of the Ramban. We were separated from the idolatry of Egypt, and from the great evils therein. However, before we received the Torah, which is the tool by which we sanctify our surroundings, we required forty-nine days of preparation, climbing the rungs of human perfection in advance of the great event. Thus even as we engage the world, at work, as we eat and drink, or in human interaction, we are able to elevate our deeds with the elevation of kedushah. After counting the Omer, some add a prayer, that the counter should "be purified and sanctified with the kedushah of Above." May this, indeed, be our lot.
Yet, there is room to distinguish between the cognition required to perform legal actions and the level required for basic reliance. Although a ten-year-old cannot perform a Torah kinyan, it is possible that he relies on his father's promise no less than his thirteen-year-old brother. Provided the child is older than three or so, there is therefore room to argue that the prohibition would apply. In addition, the Gemara warns that it is forbidden to lie to children, for this will train them to lie (Sukkah 46b). Rabbi Yosef Chaim Zonnenfeld (Salmas Chaim, Vol. 2, no. 79) was asked why the Gemara cites a special prohibition for fear of training children to lie, since the regular obligation to keep promises ought to apply? To this, he responded that "it seems that the principle of a small gift applies to an adult and not to a minor". This is in agreement with the position of Rav Meir Arik. If we disagree, and maintain that the obligation to honor promises applies even to children, the ruling of the Gemara could be explained as referring to cases in which the obligation does not apply, such as a large gift, or a situation where there is no reliance on the part of the child. Promises Made Under Duress A further point worthy of note is the question of promises made under duress. The Shulchan Aruch (Choshen Mishpat 264:7) rules that monetary commitments made under duress need not always be honored (based on Bava Kama 116). Although some rule that this principle is limited to instances where the recipient performs a mitzvah (and is therefore obligated to perform the action for free), such as returning lost property, the majority ruling is that the principle applies to all cases of duress. Perhaps the afikoman promise, made under duress of not getting the matzah back, is therefore void? It is unlikely that the duress argument is valid with regard to afikoman gifts. Unlike the classic cases of duress (such as somebody who is escaping from aggressors and needs a boat to ferry him across a river), the afikoman game is part and parcel of the Seder Night, and the father generally makes promises from his free will. Only in very extreme cases, where the afikoman was used as a means of extortion to gain extravagant promises, could the duress argument be relevant. Conclusion In conclusion, it seems that under normal circumstances, there is an obligation to keep afikoman promises. As we have seen, there is a full obligation to honor promises of small gifts, and based on the subjective definition of a small gift, afikoman promises will usually fall into this category. Although some rule that the obligation does not apply to children (under bar-mitzvah), a parent must in any case avoid lying to his children for fear of teaching them ways of falsehood. Therefore, the promise should be honored if reasonable. If a child (for instance a three-year-old) forgets about the promise, or can be persuaded to forgo the gift in return for a bar of chocolate (cheaper than a new BMX bike), one can certainly be lenient.1 We end with an amusing anecdote. The renowned Rav Heschel, who later became one of the leading luminaries of his generation, was known for his sharpness even as a young boy. One Seder Night, Rav Heschel's father stretched out his hand to take hold of the Afikoman, only to find it missing. All eyes turned to the young Heschel, who duly produced the Afikoman, and demanded a silk garment in exchange for its return. The father agreed, and the matzah was returned. 1 Mekadesh Yisrael (Pesach p. 249) writes that if a child of any age (under bar-mitzvah) forgets about the promise, there is no longer an obligation to honor it. 4 Questions in all areas of halacha can be submitted to the rabbanim of our Beis Horaah at www.dinonline.org
When the father began to allocate the matzah to the participants, he skipped over Heschel, causing the boy to cry out in dismay: "Father, why have you not given my any Afikoman?" The father explained that he was fully prepared to give Heschel his part of the Afikoman, but only on condition that the boy forgoes the promise of the silk garment. At hearing this, Heschel reached into his pocket, and took out a piece of matzah. "I suspected, dear Father, that you would try to repay me in turn, so I kept some of the Afikoman for myself." To his father's dismay, Heschel proceeded to pronounce, loud and clear: "Hineni muchan u'mezuman lekayem mitzvas achilas afikoman " Afikoman promises, it seems, were not born today (Rav Heschel lived in the early seventeenth century). Under ordinary circumstances, we ought to treat them as just another part of our Pesach expenses. c Halachic Responsa d to Questions that have been asked on our website dinonline.org.il Question: I have an online automatic stock purchasing account, which purchased stock for me on Yom Tov. I put in the order in the week before, and forgot that day was going to be Yom Tov. What do I do now? Is it assur to keep the stocks? Did I do an issur? Answer: Although it would not be correct to intentionally make an order for purchasing stock on Shabbos or Yom Tov, post factum there is no problem in keeping the stock, and this would not be considered an issur, certainly if done without intent. Sources: Authorities dispute whether it is permitted to arrange for a kinyan to take place on Shabbos. One context in which the question is discussed is for the 'kinyan' of pidyon ha-ben, for a child whose thirtieth day falls on a Shabbos. Another issue for which pre-arranging a Shabbos kinyan would come in handy is for selling chametz when Pesach eve falls on Shabbos. Rabbi Akiva Eiger (159) cites a proof from Terumas Hadeshen (269) that there is no prohibition is pre-arranging a kinyan for Shabbos, but continues to prove that it is prohibited. Iggros Moshe (Orach Chaim III, no. 44) defers both proofs, and writes that one should be stringent. This is also the opinion of Radvaz 456. However, a number of authorities are lenient in this matter (see Shaul Umeishiv VI, no. 50, and Divrei Shaul, Shabbos Hagadol, concerning selling chametz on Erev Pesach that falls on Shabbos; Maharshag 13; Maharam Schick 131; Machaneh Chaim, Orach Chaim III, no. 22; see also Avnei Nezer, Orach Chaim 51). Thus, although in deference to stringent authorities, it is not proper to intentionally arrange a sale for Shabbos, as a rabbinic prohibition (making sales on Shabbos is a rabbinic prohibition) in doubt, it cannot be called a transgression. Certainly, if done without intention, no issur can be said to have been transgressed (according to Nesivos Hamishpat, even a certain rabbinic prohibition transgressed without intent is not considered to be a transgression), and no repentence is required. Questions in all areas of halacha can be submitted to the rabbanim of our Beis Horaah at www.dinonline.org 5