JUSTICE - No. 65

25 Fall 2020 to remain in a place of danger etc. And I have also seen great scholars who have gone to another place. Validity of a Promise of Marriage Given in a Time of an Epidemic A fascinating (theoretical) responsa with respect to the breach of a promise of marriage, which came about in the wake of an epidemic that broke out after an earthquake in the city of Worms in Germany, is found in the work of Rabbi HaimYair Bachrach (Ashkenaz, 17 th century): An event that occurred in the holy community of Wirmishe in the great earthquake in 1636 …when the only daughter of one of the prominent and wealthy members of the holy community fell ill in the epidemic… and due to the many pestilences… there was no maidservant or manservant who would assist her in her illness aside from the servant of one butcher, who was handsome and tall, who said to the girl’s father: “My soul desires your daughter, and my compassion goes out to her. If you shake my hand in the manner of an oath, that if she lives, you will give her to me to be my wife. I will serve and assist her with all my strength for free, without pay.” And the father… gave him a handshake. And when he came to the girl, she also gave him a handshake…And thus the servant… assisted her…and… she recovered…and the servant also fell ill with cholera, and she served him because her soul was bound up with his soul and she loved him greatly, and he also lived. After some time, the wealthy father sought to retract his promise of marriage, “for it is shameful for him to marry off his daughter to a servant”…And he said that a handshake according to the law of oaths was coerced from him and from his daughter in order to save his daughter from destruction, but the daughter remained in her faith against her father’s wishes and threatened… that in any event she would be with him whether in a permitted fashion or in a prohibited fashion. And the father said, “If so, I will not give you even the smallest coin as a dowry, only some clothing, gifts and a wedding ring.”And this is what he did. And the servant married her without receiving anything. And the person who heard this story asked me what I thought if the father of the girl and the servant went to court, 22 how would the rabbinic court judges rule in this case. In his answer, the author of “Havat Yair” sided with the servant and was of the opinion that his endangering himself to take care of the girl who had cholera would seem to justify enforcement of the promise that he could marry her. However, in his opinion, the father is not obligated to provide his daughter with a dowry. The author of the“HavatYair”goes on to reject the argument that the promise of marriage was coerced and therefore void. Realization of Assets During an Epidemic Epidemics, and particularly pandemics, have severe economic repercussions. This can lead to a need to sell assets, even at a time when the market price sinks to an extraordinary low level. A discussion of such a matter appears in Jewish law with respect to the sale of orphans’ assets in order to repay a debt. In order to protect the orphans, the Sages required that the sale be carried out by the rabbinic court, which is referred to as “the father of orphans,” and would serve as a guardian to preserve their assets. 23 The rabbinic court appraises the value of the orphans’ land and “declares” the sale in order to try to obtain, through a kind of bidding process, the highest price for them. However, at times there is no choice but to sell the assets even during an epidemic or war, when the price that can be obtained in exchange for the orphans’ land 22. This sentence and the fact that the person providing the response was born two years after the great earthquake during which the event occurred led some to conclude that this was a hypothetical question. For responsa of this nature, see supra note 17, Menachem Elon, J EWISH L AW , ch. 39, sec. d. 23. Regarding this role of the rabbinic court, see Babylonian Talmud Gittin 37a, and the commentary of Rashi; Rambam, Inheritance Halakhot, chap. 10; S HULKHAN A RUKH , Khoshen Mishpat, siman 290, para. 1.