This week's article concludes our series on the prohibition against oppressing widows and orphans. Is there an obligation to protest an injustice that is being done to widows or orphans? Does the severe punishment mentioned in the Torah apply to bystanders as well? What are the fundamental differences between an orphan and a widow, and which is considered more severe?
Additionally, we will examine the Torah’s prohibition against taking collateral from a widow—why does this restriction apply specifically to her and not to an orphan? Is lending money to a widow under such conditions permissible? The definition of an orphan in halacha will also be discussed: at what point does one cease to be considered an orphan? Does the “widow” status extend to an agunah, divorcée, or older unmarried woman?
We will also explore why the Beis Din is regarded as the "father of orphans", and what responsibilities this designation entails. These questions and more will be addressed in the following article as we bring this discussion to its conclusion.
Defining Widows and Orphans
In the last two articles, we examined the commandment prohibiting the oppression of widows and orphans, and the severe consequences for transgressors. In this final installment, we will clarify the definitions of "orphan" and "widow", and the halachic distinctions between the two.
While the Beis Din is called "father of orphans," no such designation exists for widows. Conversely, halacha forbids taking a widow’s property as collateral but imposes no such restriction on orphans. In the following article we will explore these laws, the Beis Din’s role in protecting their financial and legal rights, and the broader responsibilities placed upon us regarding their welfare.
Silence in the Face of Injustice
As previously discussed, "oppression", or “inui” in the context of widows and orphans does not refer to its modern Hebrew meaning, but rather to the deprivation of support, security, and stability. Many early commentators emphasize that the transgression and punishment includes members of Beis Din who fail to defend them.
The Ibn Ezra (Shemos 22:21) observes an interesting shift in the Torah’s wording. The prohibition against oppression is stated in the plural: "A widow and orphan you shall not oppress (לא תענון)," but in the following verse (22:22), the Torah reverts to the singular: "If you oppress him and he cries out to Me, I will surely hear his cry."
From this change, the Ibn Ezra derives a profound lesson: the prohibition extends beyond the direct oppressor to include those who witness injustice and remain silent. Even if only one individual actively oppresses a widow or orphan, all bystanders who fail to intervene are also guilty of a transgression.
The Netziv (Ha’amek Davar, Shemos 22:21) cites Ibn Ezra, further supporting this idea with a pasuk from Yishayahu (64:11): "Will You restrain Yourself at these things, O Lord? Will You remain silent and afflict us so severely?" This implies that Divine silence in the face of suffering is a form of affliction. Thus, oppression includes not only direct harm, but also passive inaction in the face of another’s suffering.
Sefer HaChinuch (Mitzvah 65) adds that this commandment obligates the Beis Din to advocate for orphans in legal matters. They must appoint the most suitable guardian and ensure he properly manages the orphan’s assets. This reinforces the halachic principle that the Beis Din operates as the "father of orphans"—a concept we will explore below.
Rabbenu Yonah (Shaarei Teshuvah 3:24) extends the prohibition against oppressing widows and orphans to judges who fail to protect their property from theft, despite having the power to do so. Such negligence, he warns, carries the death penalty stated in Shemos (22:23): "My wrath will be kindled, and I will slay you with the sword, and your wives will be widows and your children orphans."
When Rabbi Yishmael and Rabban Shimon ben Gamliel were sentenced to death by the Romans, they initially feared they were being punished for desecrating Shabbos. However, upon reflection, they considered another possibility—that they had once delayed assisting a widow, causing her distress. Realizing that even a brief postponement of aid could fall under the severe decree, "I will slay you with the sword," they found solace in their fate.
However, the Malbim (Shemos 22:21) notes that Rabbi Akiva disagreed with this view. He held that while remaining silent in the face of injustice is wrong, it is not included in the prohibition against oppressing widows and orphans punishable by the punishment outlined in the psukim. He argues that Rabbi Yishmael and Rabban Shimon were executed due to a Divine decree intending to spare them from witnessing an impending calamity. Rashi follows Rabbi Yishmael's view, while Rambam and most Rishonim follow Rabbi Akiva.
The Chafetz Chaim (Introduction to Negative Commandment 15, Be’er Mayim Chaim) rules that while silence in the face of injustice warrants punishment, it is included in the prohibition of afflicting a widow and orphan.
Beis Din as the "Father of Orphans"
Chazal (Gittin 37a, Bava Kamma 37a) state that the Beis Din acts as the "father of orphans," bearing responsibility for their welfare. The Rishonim provide additional justifications for this ruling beyond the above-mentioned prohibition:
The Rambam (Responsa 381, Blau edition) compares the Beis Din to a hired advocate who is employed to continuously defend the rights of orphans. This, he maintains, is an integral part of its judicial role. The Ritva (Responsa 162) further connects this duty to the mitzva of hashavas aveidah (returning lost property), arguing that just as one must restore lost belongings to their owner, the Beis Din must safeguard orphans’ assets and rights.
This principle is codified in halacha by the Rambam (Hilchos Nachalos 10:5, 10:7) and the Shulchan Aruch (CM 290:1-2, 5-6). The Beis Din is required to appoint a guardian for an orphaned minor to supervise him until he reaches adulthood. The Rambam differentiates between two levels of oversight based on whether the guardian was appointed by the father before his death or by the Beis Din afterward.
Rashi (Gittin 37a) extends Beis Din’s obligation. Beyond overlooking their financial matters, Beis Din is responsible for orphan’s personal care. The Radvaz (Responsa 1:263) reinforces this, stating that if safeguarding their assets is a must, ensuring their physical well-being and proper education is even more essential.
Practical Application
The principle that Beis Din serves as the "father of orphans" is not merely metaphorical; it carries practical halachic implications, as seen in the following rulings:
- The Rashba (Responsa 2:146) rules that relatives of orphans cannot challenge the Beis Din’s choice of guardian, as its authority outweighs that of any family member.
- According to the Ramban (Responsa 38), Radvaz (Responsa 1:263), Maharam Padua (Responsa 53), and Maharshal (Responsa EH 123), the decision regarding where orphans should live—whether with the surviving parent, relatives, or unrelated individuals—rests solely with Beis Din that must determine what is best for the child without external influence. This was codified by the Rema (EH 82:7).
- The Rosh (Rules 87:1) and Mahari Ben Lev (Responsa 1:58) argue that the Beis Din does not hold greater authority than a father. Thus, in cases where a father would not have absolute control over his child's living arrangements, the Beis Din cannot override societal or legal norms, excluding exceptional circumstances. Chelkas Mechokek and Beis Shmuel (EH 82:10) support this view.
- The Ritva (Responsa 206) extends the Beis Din’s responsibility beyond individual orphans’ assets, stating that it must also oversee all funds designated for orphans in general.
Safeguarding Property of Widows and Orphans
Even if the Beis Din’s obligation does not directly stem from the prohibition against oppressing orphans, it is agreed that their property must be safeguarded, as the Rambam (Hilchos De'os 6:10) rules: "One must be more protective of their property than of his own."
Later commentators (Hagahos Yad Eisan, Turei Even, Mishnas Chachamim, Yavin Shemuah 7:5) trace this ruling to a Talmudic account (Berachos 18b) about Shmuel’s father, who was entrusted with orphans’ money. After his death, Shmuel was unaware of the money’s location and faced accusations of theft. Seeking clarity, he went to his father’s grave. There, his father appeared to him and revealed that he had hidden the money among millstones—placing his own funds on the top and bottom, with the orphans' wealth securely positioned in the middle.
When Shmuel asked why, his father explained that it was to ensure the money’s protection: if thieves searched from above or below, only his own money would be taken, while the orphans’ funds would remain untouched.
Definition of Orphan
People of all ages, even well into adulthood, often experience feelings of orphanhood and helplessness after losing a parent. This raises an important question: Who is considered an orphan in the context of this mitzvah, which demands special sensitivity and carries a Divine covenant ensuring that their cries arouse heavenly wrath? Until what age or stage does one retain this status?
The Rambam (Hilchos De'os 6:10) answers: "Until they no longer need an adult to rely upon for support and care, but can independently manage their lives like other adults."
He further clarifies that an orphan is one who has lost either father or mother, as the absence of even one parent deprives a child of a fundamental emotional and psychological need—whether the paternal role of strength, guidance, and security or the maternal role of warmth, comfort, and support.
The Achronim dispute whether individuals with intellectual, physical, or medical disabilities retain orphan status beyond childhood.
The Pesach HaDevir (OC 156:5) rules that orphanhood depends on emotional and intellectual maturity. While even for those lacking sharp intellect it ends at the age of 20, a child who matures earlier leaves his orphan status even before that point. In contrast, the Panim Me’iros (1:37) maintains that a girl’s status does not depend on her age: she ceases to be an orphan only upon marriage, when her husband assumes responsibility for her well-being.
On the other hand, the Rambam (Hilchos De’os 6:10) emphasizes that wealth and power do not negate orphanhood, and even a royal orphan remains an orphan, as no material support can substitute for the loss of a parent. This indicates that “orphan” is not merely about financial dependence, but about the absence of parental care and guidance.
A related question arises regarding a minor who converts to Judaism with his father. Since halachically, conversion severs biological parent-child ties, does the child now qualify as an orphan? The Minchas Chinuch (Mitzvah 65) argues that he is not an orphan, as his father is still present and actively caring for him. However, in the context of a judge’s duty to protect vulnerable individuals, the Minchas Chinuch (Mitzvah 590) rules that every minor convert is considered an orphan in this respect, reinforcing the obligation to show them special care and protection.
Taking Collateral from a Widow
The Torah explicitly forbids taking a widow’s garment as collateral for a loan, as stated in Devarim 24:17: "And you shall not take a widow’s garment as collateral." The Tannaim (Bava Metzia 115a) dispute whether this prohibition applies to all widows or only to poor ones.
According to Rabbi Yehuda the prohibition applies to all widows, regardless of their financial status. He maintained that we do not rationalize Torah laws unless the reasoning is explicitly given. However, Rabbi Shimon argues that only poor widows are included, because her lender must return the collateral nightly (as halacha requires) and then retrieve it each morning. This could lead to repeated visits to the widow’s home, potentially harming her reputation.
In practice, the Rambam (Hilchos Malveh VeLoveh 3:1) and Shulchan Aruch (CM 97:14) follow Rabbi Yehuda’s ruling. Hence, taking collateral from all widows, whether rich or poor, is prohibited.
When the Prohibition Applies
According to the Rambam (Hilchos Malveh VeLoveh 3:1), the prohibition against taking collateral from a widow applies from the very outset—a lender may not even stipulate a loan on the condition of receiving collateral. In contrast, the Ra’avad (glosses on the Rambam) and the Rosh (Bava Metzia 115a) maintains that the prohibition applies only at the time of collection -- a lender is permitted to require collateral from a widow as a condition of the loan. Only if she later fails to repay is one prohibited to seize collateral.
The Shulchan Aruch (CM 97:1) follows the position of the Ra’avad and the Rosh, ruling that the prohibition applies only at the time of collection, and not when given as a precondition to secure a loan.
Forms Of Collateral
While the Torah mentions a widow’s garment, the Shulchan Aruch states that the prohibition extends to any form of collateral.
Widows and "Virtual Widows"
Halachic authorities debate whether the Torah’s prohibition against taking collateral from a widow extends to other women who lack a husband's support.
The Sema (CM 97:22) includes divorced women in the prohibition. The Taz (CM 97:14) goes further, arguing that even an unmarried adult woman falls under the prohibition. However, the Shach (CM 97:1) and majority of poskim reject these extensions, ruling that the prohibition applies only to an actual widow, as explicitly stated in the Torah.
The Tumim (CM 97:8) warns against expanding the definition, arguing that once we go beyond the Torah’s explicit words, there will be no end. If we include divorcees or single women, we might also have to include agunahs or women whose husbands are away for extended periods—categories the Torah clearly did not intend to include.
A widow, he explains, experiences unique suffering, constantly mourning her loss and comparing her personal tragedy to the destruction of the Beis HaMikdash. The Torah shows special compassion for her because Hashem is close to the broken-hearted.
Oppressing an Orphan vs. Oppressing a Widow
The Maharam Shik (Mitzvah 65) writes that oppressing an orphan is more severe than oppressing a widow. He supports this by noting that many rabbinic decrees were enacted specifically to protect orphans. Additionally, while the Torah states the prohibition in plural form, "You shall not oppress them" (לא תענון), the punishment is written in singular and masculine form: "If you oppress him, and he cries out to Me, I will surely hear his cry".
However, the Cheshek Shlomo (CM 15, glosses on Tur 4) holds the opposite view, arguing that oppressing a widow is more severe because the Torah mentions her first in the prohibition.
The Malbim (Devarim 24:17) reconciles these perspectives by explaining that the Torah emphasized different concerns for widows and orphans:
Regarding collateral, the Torah forbade taking it from her because she might become overwhelmed from a perceived loss of assets. However for orphans, there is no such prohibition.
In terms of enacting justice, though, the Torah does not emphasize a prohibition against perverting the justice of a widow. Additionally, we do not find that Beis Din must advocate on her behalf or that it serves as the "father of widows" because, unlike orphans, widows generally know how to present their claims effectively in court.
The special Torah prohibition against perverting justice is reserved specifically for converts and orphans: converts – because they lack family support and may not be fluent in the local language; and orphans because they lack the knowledge and confidence to argue properly in court.
