[Avodah] Geirut

[Chana Luntz]

RAF writes:
> Nonetheless, my other point stands, that the language of dinei mamonot is
> used in conjunction with a giyur qatan, namely, zakhin lo leadam shelo
> befanav.

Agreed (the language of zakhin lo leadam is even specifically brought in the
Shuchan Aruch, you can't get more persuasive that that is at the heart of it
than that).  But I don't see how this helps you any.

Let us take the case, the classic case, of zakhin lo leadam, that of
accepting a gift on behalf of another person.  The idea is that owning
property is a benefit, and therefore, if the giftee (the intended recipient
of the gift) is not around, then somebody else can stand in and receive the
gift from the giftor on his behalf.  Now this is despite the fact that
owning property comes with obligations which are inextricably bound up with
ownership.  As an owner of property, I have an obligation to see that my
property does not injure or damage anyone.  In addition, to get any value
out of my property, I have to look after it.  In some cases, people decide
that the obligations that come with property are more than they wish to take
on, and so do not in fact want to own property.  In order to allow for this,
under the principle of zakhin lo leadam, while somebody can accept the
property on behalf of the giftee, if the giftee subsequently objects, the
property is deemed never to have become his.  However, the reason zakhin lo
leadam is deemed to work, is because the vast majority of people want to
gain property, despite the obligations which come with it, and hence gaining
property is considered a benefit.  For the rare "weirdo" who does not want
to own property, there is an out, but zakhin lo leadam does not work for
anything that is considered primarily or generally a chov ("ain chayavin
l'adam shelo befanav").

Now apply that principle to the ger katan.   The fact that zakhin lo leadam
is deemed to be at work means that one has to say, at least vis a vis a
katan, that being a Jew is a benefit (even if some obligations come along
with that - which everybody agrees they do, there is no disagreement that
being a Jew means you are a bar chayuva).  If the chov parts are deemed
outweigh the benefit parts, or even to really be a significant part, then
the whole mechanism just would not apply.  But KOM is precisely about chov -
and the more emphasis you put on it, the less applicable the whole concept
of zakhin lo leadam appears.

Rather, the analysis appears to be - any normal katan would unquestionably
be regarded as benefiting by being a Jew, even though chiyuvim in the form
of mitzvos comes along too.  It is only the oddity that would reject this
situation, so on majority, you allow for the odd one out, but the halachic
presumption is as before.

Now, I can understand an argument that if we accept a ger katan whose
parents are not going to bring him up frum, then logic would seem to dictate
that in the majority of cases such a katan, on reaching gadlus, is likely to
prefer not to be obligated in the mitzvos (ie that the chov aspects outweigh
the zakin aspects) - and therefore surely zakhin lo leadam should not apply.
But, one has to be clear that one by concluding this one appears to be
reversing the presumption of the gemora and Shulchan Aruch (it is a bit like
saying, well modern day women just don't behave like tam du, despite what
the gemora says, so we will ignore or reverse the presumption in the gemora)
At best you might be able to argue for a reading in of conditionality that
is not clearly there (you can have a go at implying it from the discussion
on Kesubos 11a but even that relies on a look forward test that it is not
clear you are authorised to do).  In the real world, I can see many many
reasons why a beis din would not want to convert somebody whose parents or
guardians are not frum (and beis din certainly has discretion), but the
sources just do not seem to bear out the assumption that a beis din is
therefore not permitted to do so, and that if they did so, that the person
is not, prima facie, Jewish - unless they perform a whole song and dance on
gadlus to get them out of it.


> Good week,
> --
> Arie Folger
> http://www.ariefolger.googlepages.com

Regards

Chana