Question
This past Yom Kippur I, the gabbai, sold all the kibudim in the morning before Kriyas Hatorah including maftir Yonah, even though we only read it in the afternoon. Maftir Yonah was sold to the highest bidder for a thousand dollars since the runner-up only offered to pay nine hundred dollars. After Mussaf we had a two hour break. Much to my surprise, the person who had bought maftir Yonah failed to return for Minchah. Realizing the situation, I called up the next highest bidder without making up with him any price, since it was in the middle of kriyas hatorah.
After Yom Kippur I asked the one who bought the maftir to pay but he claims he doesn’t owe anything because in the end he wasn’t called up for the maftir. He claimed that it wasn’t his fault that he didn’t return since he didn’t wake up from his nap on time. I then turned to the one who did get to read the maftir but he likewise refuses to pay claiming that he never bought the maftir since his bid was not accepted. Can I force either of them to pay?
Answer
In order to consider the argument of the one who purchased the maftir, but failed to show up, we have to understand the nature of the purchase of any mitzvah. If the purchase of a mitzvah is the same as the purchase of any ordinary object, the argument of the purchaser is invalid since when one acquires an object, the sale is final and is not affected by the customer’s ultimate use of his acquisition. For example, if someone acquired a car but passed away before having a chance to drive it, nevertheless the sale remains in place and even if he didn’t pay before death his heirs will have to pay.
The reason why it is not obvious that buying a mitzvah is final is that there is nothing tangible that is acquired when one purchases a mitzvah. It is not even clear what one gets out of being called to the Torah. We will first investigate the latter issue.
The Gemoro (Chulin 87A) derives from a pasuk that one who is shochet automatically is awarded the privilege to perform the mitzvah of covering the blood. The Gemoro cites an anecdote where someone else covered the blood without receiving permission from the shochet. When the shochet complained that the person “stole” his mitzvah, Rabban Gamliel fined the one who grabbed to pay ten gold coins. The fine is because the shochet lost the reward he would have received from Hashem for performing the mitzvah of covering the blood. The Rishonim explain that this fine is levied when someone either took away someone else’s mitzvah or he took a person’s right to say a brocho.
Tosafos (BK 91B) and the Rosh (Chulin 6, 8) cite a ruling of Rabbeinu Tam concerning a situation where the gabbai called one person up to the Torah but someone else simply went up in his stead. Rabbeinu Tam ruled that the “thief” does not owe anything to the one who had been called up because the one who had been called up did not lose anything. He explains that he did not lose a mitzvah because one who listens to the Torah reading performs the same mitzvah as the one who is called to the Torah. He continues that he didn’t even lose the reward from the two brochos that were said by the one who read from the Torah in his stead since the Gemara (Brochos 51B) states that one who answers amen to someone else’s brocho receives the same reward as the one who actually recited the brocho.
From this we can derive that one who purchases an aliya to the Torah does not even gain thereby the opportunity to perform a mitzvah that he could not perform prior to his purchase. We should note that there are other mitzvahs where one who purchases the mitzvah thereby acquires the chance to perform a mitzvah that he did not have prior to his purchase. An example of this is the old custom where a person would pay for the right to be a sandek at a bris. However, an Aliya to the Torah does not fall into this category.
In light of what we learned that one originally one did not really acquire a mitzvah when he purchased an aliya we must consider whether nowadays anything transpires when one does purchase an aliya and how one acquires whatever there is to acquire.
The Maharshal (Yam Shel Shlomo BK 8, 60) addresses this issue and derives from the Gemara (BM 74A) that since nowadays the custom is to sell aliyos, by virtue of custom one does actually acquire the aliya in the same manner that one acquires an object. The method of acquisition is called setumpto. A practical result that he mentions is that if someone would come to you, the gabbai, after you sold maftir Yonah for a thousand dollars and offer you ten thousand dollars you would not be able to accept his offer. This contrasts with the earlier period when there was no such custom, since in the earlier period even if you agreed to give someone maftir Yonah in return for a thousand dollars, if someone later offered you ten thousand dollars you certainly had the ability to change your mind. According to many you would not have even been dubbed a mechusar amono-an untrustworthy individual for having changed your mind.
Thus, we see that when you sold maftir Yonah it was a real sale. Furthermore, we see that it was not only an agreement that lacked a formal act of kinyan but that there was an act of kinyan called setumpto. Therefore, the purchaser does not need to actually go up to the Torah in order to acquire the aliya.
We find additional proof that the one who bought a mitzvah becomes its full-fledged owner. The Knesses Hagedolo (Sheyorei OC 147, Tur 3) rules that if a person who bought the right to perform a mitzvah for a year passed away in the middle of the year his heirs can sell the right to perform the mitzvah to another person for the remainder of the year and if they can’t sell it for the amount that he bought it for, the heirs have to make up the difference and if they sell it at a profit they are entitled to keep the profit.
The ruling of the Maharshal was preceded by an earlier ruling of the Maharam of Rottenberg (cited by Mordechai Shabbos 472-3 and by the Beis Yosef YD 264) in the case of a bris milah. Even though we saw (He was the Rebbi of the Rosh.) that at the time of the Maharam they did not sell aliyos to the Torah, but people did buy from the father of a newborn son the right to be a sandek or mohel at his son’s bris. The Maharam ruled that the father did not afterwards have the right to award the honor to another individual since the first one already owned the right by virtue of the kinyan of setumpto.
Therefore, we have learned that the one who bought maftir Yonah acquired the mitzvah and the fact tht he did not show up because he fell asleep, even if it would be classified as an oness, would not free him from his obligation to pay whatever he agreed to pay. Besides being logical since, as we stated at the outset, oness does not affect purchases, we can derive this from the ruling of the Knesses Hagedolo because one who passed away was certainly an oness and yet his heirs were obligated to pay whatever their father pledged to pay.
The argument of the one who you actually called-up is valid since he never bought the maftir and you didn’t discuss it with him before calling him up. Furthermore, when you called him up he had no choice but to take the Maftir since some (Magen Avrohom 53, 22) maintain that one who refuses to accept an aliya is punished by having his lifetime shortened.
Furthermore, it does not make a difference to you since had you sold it to the runner-up the income would go to the one who bought the Maftir and you would just remain with the thousand dollars the first one purchased it for. We can derive this from the ruling of the Knesses Hagedolo in the case where the buyer passed away. An additional source is the Ketsos (316, 1) and Nesevos (316, 2) who rule in the case of one who rented a house to someone who moved out and the owner then rented it out to someone else. They both maintain that the rental income from the second renter goes to the first renter. Their argument is based on the Gemoro’s statement (BM 35B) that one cannot earn income from renting another person’s cow even if the owner did not lose any income since he did not plan to rent it out. This applies here as well. You cannot earn income from the mitzvah you already sold to someone else.
In conclusion: The one who bought maftir Yonah is obligated to pay a thousand dollars and the person whom you called up owes nothing.
