Child Support

Translated by David Silverberg

 

     This sugya ranks among the most difficult sugyot in this chapter, but not because of any complex issues involved.  In fact, the Gemara's discussion is clear and straightforward and in perfect consonance with parallel sugyot, so much so that we are left with practically no ambiguity as to the Gemara's intent.  Precisely out of this simplicity the difficulty arises.  The simple conclusion that a father bears no obligation to support his children is simply inconceivable, and we are bewildered by the need to explain if only apologetically, this rule that so strongly negates our most basic conceptions of a parent's responsibility to children.  In these shiurim, we generally do not limit our discussion to the ethical angles of the subject matter at hand, and so we will deal with this sugya as we do any other, in the hope that in the process we will gain insight into this important issue, as well.

 

1.  Very Young Children

     The mishna in Masekhet Ketubot (49a) says: "A father is not obligated with regard to his daughter's support.  This teaching was taught by Rabbi Elazar Ben Azarya before the scholars at Kerem Be-Yavneh: The sons inherit, and the daughters are fed.  Just as the sons do not inherit until after the father's death, so are the daughters not fed until after their father's death."  A beraita cited by the Gemara similarly states, "It is a mitzva to feed the daughters, not to mention the sons, who involve themselves in Torah; this is Rabbi Meir's view.  Rabbi Yehuda says, it is a mitzva to feed the sons, not to mention the daughters, because of the disgrace [involved if they must resort to begging].  Rabbi Yochanan Ben Beroka says, there is an obligation to feed the daughters after their father's death; during their father's lifetime, however, neither [the sons nor the daughters] are fed."  It thus emerges that at best there is a mitzva that a father support his children but there is uniform agreement that there is no obligation.  However, Tosefot (49b s.v. ke-she'hem) limit this halakha to children over the age of six.  A father must, however, feed his small children, as established explicitly at the end of the fifth perek of Ketubot: "Even though they said that a person need not feed his sons and daughters when they are small, he must feed them when they are very small."

 

     The Gemara there determines that "very small" here refers to children under the age of six, and the Gemara substantiates this definition by bringing the halakha of Rav Assi: "A six-year-old child leaves in his mother's eruv."  Rashi explains: "If his mother prepared an eruv [techumin, which allows one to walk on Shabbat two thousand cubits past the eruv] to the north, and his father to the south, his mother brings him to her but his father does not bring him to him, for he still needs his mother, and the rabbis [therefore] established that he follows his mother['s eruv].  We see that until [the age of] six he requires his mother's support, and just as the husband feeds her, so does he (the father) feed him (the child) with her."  Similarly, the Rid explains: "He goes with his mother and not with his father, because he cannot be separated from his mother.  Therefore, just as he is obligated to feed his wife, so is he obligated to feed his small children who depend on him."  The Rid's comments very much resemble those of Rashi, however there is one fundamental difference.  Rashi derives from Rav Assi's halakha that a child under the age of six requires his mother's assistance and therefore follows her eruv, therefore the obligation to feed him is an extension of the obligation feed the mother.  According to the Rid, by contrast, the fact that a child cannot separate from his mother results in the father's obligation to feed him, independent of the obligation to feed one's wife, since the children are dependant him.

 

     In truth, we find that the Rishonim debate this very issue explicitly.  The Ran maintains that the obligation to feed very small children lies within the framework of the husband's obligation to feed his wife, as we inferred from Rashi's remarks.  He therefore posits that this obligation remains in force only during the wife's lifetime.  Once she passes away, the father no longer bears any obligation to feed his small children.  We might explain that according to the Ran, the obligation to feed one's wife includes everything she normally gives to others.  In fact, halakha requires the husband to add to his wife's support so that she has what to feed guests (64b).  Certainly, then, we would require him to provide her enough to feed her children, as well.  This is the explanation of Rav Moshe Feinstein zt"l (Iggerot Moshe, E.H. 1:106), who adds that accordingly, if the wife's children live with her, the father bears an obligation to feed them even past the age of six.

 

     Rav Meir Simcha, however, explained this position differently.  He argued that the concern for feeding children itself constitutes part of the concern for the wife's needs.  He writes, "A person's obligation to feed his small sons and daughters until six is due to the obligation to feed their mother… it is in the interest of the woman's wellbeing to know that her daughters are fed" (Or Samei'ach, Hilkhot Ishut 19:12).  Meaning, the obligation to feed the wife includes the obligation to care for the needs of the children, as one of her basic maternal needs.

 

     By contrast, the Rivash ruled that a father is required to feed even those children born to him by an unmarried woman.  The Shulchan Arukh rules accordingly.  Clearly, this position views the father's obligation as a responsibility directly to his young children, rather than an extension of the obligation to support his wife – as we inferred from the comments of the Rid.  Therefore, a father is obligated to support his child even from an unmarried woman, whom he bears no obligation to support.

 

     It emerges, then, that the Rishonim debate the nature of a father's obligation to feed his very young children.  The Chelkat Mechokek (E.H. 71:1) brings another ramification of this debate.  Associated with the husband's obligation to support his wife is the halakha of "ola imo ve-eina yoredet imo" (see shiur #22 of this series).  This means that if the husband's standard of living does not equal his wife's, he must provide for her at the higher of the two standards.  If the obligation to support one's children evolves from an extension of the obligation of mezonot ishto (supporting one's wife), then the provision of "ola imo" would apply to one's children, as well.  If, however, we deal with an independent obligation, unrelated to mezonot ishto, then we have no reason to apply the halakha of "ola imo" when it comes to feeding one's children.

 

     The Rambam (Hilkhot Ishut 12:14) writes: "Just as a person is obligated with regard to supporting his wife, so is he obligated with regard to supporting his young sons and daughters, until they reach six years of age."  Based on this formulation, which appears to hinge the obligation towards children on that towards one's wife, some have argued that the Rambam follows the Ran's position.  (See the "hagahot" to the Mishneh Le-melekh.)  Later, however (19:14), the Rambam rules that one must feed a daughter born to him from a "sheniya la-arayot" – a relative forbidden to him mi-derabbanan, despite the fact that he has no obligation to support the mother (since she is forbidden to him).  Thus,  it seems clear that according to the Rambam, the father's obligation to feed his small children is an obligation towards them directly.

 

2.  Older Children

     All this applies specifically to children below the age of six.  A father does not bear an obligation to feed his children who have passed the age of six.  We do, however, find a debate among the Tanna'im as to whether there is a mitzva to do so, even if no specific obligation exists.  The beraita quoted at the beginning of the shiur brings the views of Rabbi Meir and Rabbi Yehuda, that such a mitzva does, in fact, apply, whereas according to Rabbi Yochanan Ben Beroka, there is no mitzva at all to feed one's children beyond the age of six.

 

     However, the Gemara notes that although no obligation exists, pressure is applied upon a father who wishes not to feed his children: "When they would come before Rav Yehuda [with a case of a father refusing to feed his children], he said to them, 'The yarod [species of bid] gives birth and casts its young on the townspeople!'  When they would come before Rav Chisda, he said to them, 'Turn over for him a mortar in public [to use as an improvised stand] and stand up and declare, 'A raven cares for its young, but this man does not care for his young!'"  If the father is not particularly wealthy, then we do not take any coercive measures, but rather apply pressure; when dealing with a wealthy father, the court coerces him to feed his young, as the court may force people of means to give charity.

 

     Tosefot ask how the Bet-Din can force an individual to give tzedaka: "Why did he force him because of charity?  Is not its reward written alongside it, as it says [in the context of the mitzva of tzedaka], 'in order that the Lord your God blesses you,' and we say… [in Masekhet Chulin 110b] that the human court is not responsible with regard to [the enforcement] of a mitzvat asei whose reward is written alongside it?"  Tosefot raise several different answers, such as the suggestion that "coercion" here refers to verbal coercion, which Bet-Din will apply even with regard to a mitzva whose reward is written in the Torah.  Tosefot also suggest that perhaps Bet-Din coerces not due to the positive commandment of giving charity, but to enforce compliance with the prohibitions against refusing to give tzedaka ("lo te'ametz" and "lo tikpotz").

 

     In any event, Tosefot maintain that Bet-Din does not coerce one to perform a mitzvat asei if the Torah specifies the reward for that mitzva.  They cite proof from the Gemara in Masekhet Chulin (110b): "They brought a person who did not respect his father or mother and bound him.  He said to them, 'Leave him, for we learned: Every mitzvat asei whose reward is written alongside it – the human court is not responsible for it.'"  The Rambam, however, in his commentary to our mishna, writes, "It is well known that a judge should coerce people when it comes to the mitzva of tzedaka because it is included among the mitzvot asei, regarding which there is an obligation to lash a person until he performs the given mitzva incumbent upon him at that time, or he dies."  According to the Rambam, Bet-Din employs coercive measures regarding the mitzva of tzedaka just as they do regarding all other mitzvot asei, as the Gemara posits (Ketubot 86a), "When it comes to mitzvot asei, for example, if we tell him, 'Make a sukka' and he does not, he is beaten until his soul departs."  But how can we apply this to the mitzva of tzedaka if, as the Gemara in Chulin establishes, Bet-Din has no responsibility to enforce a mitzvat asei whose reward is mentioned in the Torah?

 

     One might suggest that the Rambam simply ruled against this principle.  In Hilkhot Mamrim (5:15), he writes that a Bet-Din administers lashes ("makkat mardut") to one who humiliates his father or mother.  We should note, however, that there he speaks specifically of makkat mardut, a flogging specific to one who does not adhere to rabbinic ruling.  The Rambam does not require the Bet-Din to beat the individual "until his soul departs," as they do in coercing one to perform a mitzvat asei.  This does not, therefore, give us any indication as to whether or not the Rambam accepted the ruling of the Gemara in Chulin, that Bet-Din does not employ coercive measures when the reward for the given mitzva is written in the Torah.

 

     It appears that when dealing with a mitzvat asei whose reward is written, Bet-Din does not administer punishment.  However, the halakha that the court "beats him until his soul depart" is meant not as punishment, but rather as a method of coercion.  He is beaten until he complies.  This, the Rambam maintains, applies to all mitzvot, even those whose reward is written in the Torah.  In our case, then, where the father refuses to feed his children and thus does not fulfill the mitzva of tzedaka charged upon him, the Bet-Din coerces him to fulfill the mitzva.  However, punitive action for non-compliance would be inapplicable due to despite the fact that the Torah explicitly mentions the reward for giving tzedaka.

 

     The Ritva concurs with Tosefot's presumption, that Bet-Din does not employ coercive measures when it comes to mitzvot whose reward appears in the Torah, and explains that in this instance coercion is nevertheless warranted out of concern for the needy.  He writes, "There [in Chulin] we refer to other mitzvot, such as honoring parents and the like.  But with regard to tzedaka, we do coerce because of the needs of the poor… "  Meaning, the halakha of coercing those who refuse to give charity is intended not to ensure the fulfillment of the mitzva, but rather for the benefit of the poor who depend on charitable donations.

 

     The author of the "Ketzot," in his work, "Avnei Miluim" on Even Ha-ezer (71:4), suggests a different explanation for the coercion described in our sugya:

 

"It would appear that since we (verbally) coerce even those who are not wealthy, as it says, 'A raven cares for its children… ,' despite the fact that no mitzva of tzedaka applies, as he is not wealthy, we therefore go one step further when dealing with a wealthy man and coerce him.  Bet-Din has a mitzva to coerce him, but not merely because of the mitzva of charity, for since its reward is written, Bet-Din has the option not to coerce.  Rather, this is because we deal with his own children, which is more stringent, for even on someone who is not wealthy we apply verbal pressure, so a wealthy person is actually coerced, for in any event Bet-Din reserves the right to coerce.  Here we are taught the proper procedure and sound advice that we coerce him, because of 'A raven cares for its young… '"

 

Meaning, the coercion in our sugya does not relate to the mitzva of tzedaka, the reward for which is mentioned in the Torah, but rather out of concern for the children's livelihood.  The Avnei Miluim seemingly maintains that halakha follows the view of Rabbi Yehuda and Rabbi Meir, that a father has a mitzva to feed his children, and the reward for this mitzva is not mentioned in the Torah.

 

     On the basis of this theory, the Avnei Miluim proceeds to explain why we coerce the father to feed his children only until adulthood.  Presumably, if we deal here with the mitzva of tzedaka, we should force the father to feed even his teenage offspring, in light of the halakha affording precedence to family members when giving charity.  Even after one's children reach bar-mitzva, then, he bears an obligation of tzedaka to support them, and thus Bet-Din should have the obligation to coerce him.  But once we understand that the coercion here relates to the specific mitzva upon a father to feed his children, clearly this applies only during their childhood.  The Gemara records the "takanat Usha" legislating that parents feed their children "during their childhood," which Rashi explains to mean until physical maturity.  The Avnei Miluim, accordingly, writes:

 

"This resolves the comments of the Shulchan Arukh, which writes, 'We extract [the money] from him coercively because of [the mitzva of] tzedaka, and we feed them until they grow up.'  The Derisha asked, even after they grow he bears an obligation to feed them as charity… But according to what we have written, this is easily resolved.  Once the children have grown, Bet-Din has the right not to coerce since the reward [for this mitzva of tzedaka] is written alongside it.  Until they grow, however, Bet-Din has a mitzva to coerce despite the fact that the reward is written alongside it, because 'A raven cares for its young,' just as we apply verbal pressure upon someone who is not wealthy, for Bet-Din has the right to coerce when it comes to any form of tzedaka.  Regarding young children, Bet-Din has a mitzva to coerce and forcibly extract money from him."

 

The question, however, arises, on what basis does the Avnei Miluim assume that halakha does not follow the view of Rabbi Yochanan Ben Beroka, that there is no mitzva at all to feed children?  Why does the Avnei Miluim presuppose the existence of such a mitzva?  He perhaps reached this conclusion on the basis of the Gemara's account of the pressure applied by the Amoraim on the father to feed his children.  They could apply such pressure only if there indeed exists a mitzva in this regard.

 

     Furthermore, it would appear that the halakha of coercing a parent to feed his children applies even according to the view of Rabbi Yochanan Ben Beroka.  Rashi writes in Masekhet Bava Metzia (12a), "An item found by one's young son or daughter… [Regarding] one's young daughter, in Ketubot (46b) we derive from verses that a minor, and even a na'ara – all her earnings go to her father."  Meaning, a father's rights to his daughter's metzia is extracted from verses in the Torah.  But Rashi's comment here appears to contradict the very Gemara he cites as his source.  The Gemara there establishes that a father has rights to his daughter's metzia only because of "eiva" – to avoid feelings of resentment towards her.  Rashi there explains, "Since he is not obligated with regard to her support, if you say that she keeps her metzia, he will harbor resentment and will no longer feed her."  Apparently, Rashi felt that in truth, "eiva" is not the reason why Chazal granted the father rights over his daughter's metzia; rather, it forms the underlying reason why the Torah granted him her metzia.  The Torah itself legislated that a father keeps his daughter's metzia in order to help ensure that he will feed her.  If she would keep objects that she finds, this could cause resentment on the father's part, perhaps prompting him to withhold her support.  We see from Rashi that although the father is not strictly obligated to feed his daughter, the Torah nevertheless works with the premise that the father assumes this paternal responsibility, and proposes to avoid impediments which would discourage him.

 

     Accordingly, we may claim that in the view of Rabbi Yochanan Ben Beroka, the Torah did not issue a command requiring a father to feed his children because such a command is unnecessary.  We find a similar phenomenon with regard to cannibalism.  According to many Rishonim, the Torah did not forbid the consumption of human meat.  Clearly, however, the absence of such a prohibition does not mean that the Torah wished to allow it (see Ketubot 60a).  The same applies in our context.  The absence of a specific obligation on a father to feed his children, and, according to Rabbi Yochanan, the absence of any command in this regard, is not attributed to the Torah's desire that a father neglect his young.  Is it conceivable that according to the Ran, if not for the obligation to feed one's wife a father bears no responsibility to care for his children below the age of six?  Our entire nation beseeches the Almighty that He have compassion on us "as a father has compassion for his children," and clearly such compassion is implanted within human nature generally – all the more so within the nature of Am Yisrael, whom Chazal describe as "compassionate ones, the children of compassionate ones."  It thus seems abundantly clear that the lack of a specific command to feed one's children is rooted in the norm that every parent cares for the needs of his young.  And so Chazal, who understood the depths of the Torah's demands of us, in spite of the absence of a specific divine command, established that pressure be applied on a person who fails to live up to this basic demand.  We may add along these lines that according to the Avnei Miluim, a wealthy man is coerced to feed his young, in order that he fulfills that which basic, human sensitivity demand of him.

 

Sources for the next shiur:

 

1. 50b – "Yativ… le-dikla ka'amina."

2. Mishna, 68a; Gemara until "shema mina"; 68b – "Amar Rav Huna amar Rebbe" until end of page; Tosefot s.v. kol.

3. Ramban, 68a s.v. u-mistabra; Tosefot, 51a s.v. mi-mekarke'e.

4. 52b – "Amar Rabbi Yochanan… le-issur nekhasi"; Ritva s.v. gemara.

5. 69a – "Amar Ameimar… bi-shvu'a.

 

Questions:

 

1. On what point do Rabbi Yehuda and the Chakhamim disagree?

2. Why does our sugya hinge the possibility of paying parnasa from metaltelin on Rabbi Yehuda's position?

3. Why are the inheritors exempt from supporting their sister when the father expresses his refusal to support her?  Is not parnasa, according to the Gemara's conclusion, an obligation upon the brothers themselves?