Question #1: The inherited shofar
“Our shul’s longstanding shofar blower passed on. Are we required to appoint his son, when we would prefer to appoint a different master blaster?”
Question #2: I’d like a change!
“Is there a halachic reason why, in some communities, people hold their appointments on shul and school boards forever, whereas, in other communities, these positions are constantly rotated?”
Question #3: Long live the Rabbi!
“When a rav passes on, does his son have a claim to the position?”
In several places, Chazal derive that a son qualified for a communal appointment held by his father inherits the position (Horiyos 11b; Kesubos 103b; Sifrei, Devorim 17:20). To quote the Rambam’s halachic ruling on the topic: When the king, the kohen gadol, or a different appointee dies, we appoint, in his stead, his son or someone else who would inherit from him. Whoever would be first to inherit from him comes first for the position of the deceased, provided he is a valid substitute… the same is true for any appointment in the Jewish people — one who receives it does so for himself and his descendants (Hilchos Klei Hamikdash 4:20).
The Rambam mentions this law a second time,in which he explains in more detail what is meant by saying that the son is a “valid substitute”: whoever has a prior right germane to receive inheritance has a prior right for inheriting the monarchy… not only the kingship, but any other position of authority and any other appointment in Israel is an inheritance for his son and his son’s son, forever, provided that the son fills the place of his father in wisdom and fear of G-d. If he meets the standard in fear of G-d, but not in wisdom, we appoint him and then teach him. However, anyone lacking in fear of G-d, even if he is very wise, is not appointed to any position in Israel (Hilchos Melachim 1:7).
One of the earliest surviving responsa related to this question was penned hundreds of years ago, when the Rashba was asked about the following case (Shu”t HaRashba 1:300). A chazzan/baal keriyah had been serving a community faithfully for 38 years, a position that he inherited from his father, who had inherited the position from his father. The current chazzan’s vision is now somewhat impaired, making it difficult for him to be the baal keriyah, and he has been having his son function as baal keriyah and also as community secretary and scribe, which apparently were other responsibilities included in the position. Some members of the community are dissatisfied with the new arrangements — they feel that the son does not have as nice a voice as his father. They are requesting that either the chazzan fulfill all the requirements of his position, or that he retire and allow the community to hire a new chazzan, who can perform to their specifications. When the community hired this chazzan over a generation before, he was able to perform all his tasks admirably. They are still satisfied with his skills as a chazzan, and they would not request that he step down, as long as he can fulfill his job. However, they feel that they did not hire his replacement, and they are dissatisfied with the son’s voice, which is not as melodious as that of his father.
For his part, the chazzan notes that he has a life contract with the community, which states that no one can take his place at any of his tasks without his permission. Furthermore, he claims that most of the 150 members of the community are willing to have his son help him in the areas that are now difficult for him, whereas only about ten members voice disapproval of the new arrangement. Each of the two sides in the dispute presented its position to the Rashba to rule on the case via correspondence. We are highly grateful that they chose this specific method of dealing with their litigation, because it provides a written record of the case and the Rashba’s detailed decision. Based on what we have seen so far, how would you rule?
The Rashba sided with the chazzan for three different reasons:
First, when you hire someone for a position as chazzan, it is self understood that he will occasionally need someone to substitute for him, either because he is ill or needs to be out of town. The Rashba rules that it is within the authority of the chazzan to choose who should serve as his substitute, assuming that he chooses someone who can do an adequate job. (A later authority, the Keneses Hagedolah, notes that there is another requirement – the substitute is G-d-fearing enough to fill the position [quoted by the Mishnah Berurah 53:84].)
Second reason of Rashba
A second reason why the Rashba rules in favor of the chazzan is that the contract states that the community cannot have someone else take his place without his agreement. This implies that the chazzan has the authority, at his option, to choose someone to assist him in carrying out his responsibilities.
The Rashba does not make any distinction between having someone substitute for the chazzan on an occasional basis and having someone assume some of his responsibilities permanently. In both instances, he considers it the right of the chazzan to assign part of this job to someone else, provided the assignee can perform the job adequately. It is not necessary that the substitute or replacement perform the job at the same level as the chazzan himself.
The son’s right
The third reason the Rashba cites is that, should the chazzan no longer be able to fulfill his responsibilities, his son has the right to the position as long as he can perform the job adequately. It is not necessary that the son have a voice as melodious as that of his father, as long as he is G-d fearing enough to fulfill the position. It is, therefore, certainly true that the son has the right to assist the current chazzan ahead of anyone else. Some later authorities rule that the son does not have a right to the position if his voice sounds strange (Magen Avraham 53:32).
To simplify: The Rashba’s first two reasons explain why the chazzan has a right to choose his own replacement, and the third reason explains why the son has the right to assume the chazzan’s responsibilities, ahead of any other candidate.
Choosing someone else
What would the Rashba hold if the different reasons are in conflict – meaning that the son would like to be his father’s replacement, but the father does not want him? The Rashba implies that, should the chazzan want to appoint someone other than his son to help him with his responsibilities, he may do so.
How do we rule?
The Rema (Orach Chayim 53:25) quotes this Rashba, but implies that he limits the right of the chazzan to appointing his son, and does not accept that the chazzan has the right to appoint someone else. The Mishnah Berurah explains as follows: There are indeed two different concepts that explain why the Rashba ruled according to the chazzan. One is that the chazzan has a right to appoint a substitute to assist him on an occasional basis, or to take over for him while he is away or ill. However, it may be that this right is his only when the substitute is temporarily fulfilling one of the chazzan’s responsibilities. It may not follow that the chazzan can appoint someone to replace him permanently in one of his roles. In this instance, that job would pass to the chazzan’s son. In the opinion of the Rema, when a permanent appointment is being made, the son has the right to the position, whereas the Rashba, himself, held that the chazzan has the right to appoint even someone other than his son on a permanent basis to assist him in his responsibilities. We will soon see a possible source for the Rema’s opinion.
Inherited his voice?
Why does the son of a chazzan have the right to inherit his father’s position? After all, when the chazzan died, he made his son into an orphan, not into a chazzan!
However, as we saw above, this halachah is in fact the case for any position in klal Yisroel: A son has the right to his father’s position, as long as he meets the basic requirements for the position.
Can the son sell the position?
To what extent does the son have the right to the position? Can he offer the position to someone else, and if so, can he do so even for payment?
An early authority, the Mordechai (Bava Kama 8:108), quoting a responsum from his rebbe, the Maharam Rottenberg, discusses this exact question. He rules that although a position of authority among the Jewish people is bequeathed to a son, the son does not have any right to give the position to someone else. He compares this to the rights of a kohen or a levi, which also are bequeathed to sons, but cannot be sold or transferred.
This is explained nicely by the Chasam Sofer (Shu”t Orach Chayim #12), who notes that a position, even of king of the Jewish people, is not inherited in the same way that one inherits property. According to the Torah, when a man dies, his sons automatically become the owners of his property. They do not require an authorization of a beis din, a court order, or a formal transfer of title – the property automatically becomes theirs. This is not the case regarding the inheriting of a position. The son does not automatically become king or kohen gadol – he must be appointed to the position. (Those interested in knowing how the kohen gadol is appointed should check the following sources: Tosafos, Zevachim 18a s.v. Hagah; Tosafos, Yoma 12b s.v. Kohein; Tosafos, Megillah 9b s.v. Velo; Aruch Hashulchan Ha’asid,Chapter 23.)
Source for the Rema
This Mordechai might be the source for the above-quoted Rema, who ruled that the chazzan may transfer some of his responsibilities to his son, but cannot appoint someone else instead of his son. The Rema accepted that it is understood that a position of chazzan will require that he occasionally needs someone to substitute, and that the choice of substitute may be left to the chazzan. But the chazzan does not own the position to the extent that he can transfer it to someone else permanently, either completely or partially.
Let us return to the original responsum of the Rashba, in which he ruled that the chazzan has the right to appoint his own substitute. The Rashba contends that, even without a contract, the community cannot replace the chazzan. In a different responsum (Shu”t Harashba 5:283), heprovides several reasons why a chazzan or anyone else in a community position has a right to keep his post. One reason is that halachah recognizes that, once someone has been fulfilling a communal role, he acquires a chazakah, the right of status quo, to keep the position, as long as there is no reason to disqualify him.
The Rashba presents a second reason why an appointee has the right to keep his position: because of darchei shalom. It reduces machlokes when people have an assumption that replacements are not made arbitrarily. Anyone who has lived in a community where this is not common practice can certainly attest to the strife created when a public servant’s contract is not renewed. (However, see Shu”t Maharalnach, quoted by Magen Avraham 53:32.)
A third reason why the person has the right to keep his position is because, if he is replaced, people may think that this was because of malfeasance. Maintaining him in the position protects his personal reputation.
Even the Rashba felt that there can be exceptions to his ruling – in other words, there are some instances in which one may be able to terminate a person’s tenure from a community position without that person having committed a malfeasance. The Rashba notes that there are places in which the recognized custom is that all positions are regularly rotated. In these communities, all appointments, whether salaried or voluntary, are temporary. He explains that since this is an accepted practice in these congregations, the reasons mentioned above why one may not remove someone from a position do not apply. Since everyone knows that his appointment is only temporary, no machlokes should result when a replacement is made. Similarly, no one will assume that an appointee was replaced because of malfeasance.
The later authorities note that this is true only when it is already an established custom in these places that appointments are always temporary and replacements are made at a specified time. However, when it is usual practice that people remain in their positions, one may not remove someone from his position, unless there was malfeasance (Shu”t Chemdas Shelomoh #7and Shu”t Chasam Sofer, Orach Chayim #206, both quoted by Mishnah Berurah 53:86). The Chasam Sofer allows another exception — when it was stipulated at the time of the original appointment that a new negotiation and appointment is necessary to renew the person’s appointment after his term is complete.
I’d like a change!
At this point, we can discuss one of our original questions:
“Is there a halachic reason why, in some communities, people hold their appointments on shul and school boards forever, whereas in other communities, these positions are constantly rotated?”
We now see that there is halachic basis both for the practice that in some communities that people remain in the position of shul or school president for long periods of time, whereas in other communities these positions are rotated on a regular basis.
A major exception?
Although we have noted that a son has a right to inherit his father’s position, several authorities contend that there is a major exception to this rule: a Torah position is not automatically inherited. One of the major advocates of this approach, the Chasam Sofer (Shu”t Chasam Sofer, Orach Chayim #12 and glosses to Orach Chayim end of 53), asked the following question: The Gemara (Yoma 72b) states that the position of kohen meshuach milchamah, the kohen anointed to provide encouragement and announce the halachos to the soldiers of the Jewish army, is not a hereditary position. Why is this position different from all the other appointments that we say are hereditary? The Chasam Sofer answers that there is a difference between positions of authority and religious positions. Positions of authority, such as king, do belong to the son, if he is qualified. However, there is no inheritance of religious positions, unless that is the accepted custom. (A similar view is stated by the Shu”t Maharashdam, Yoreh Deah #85.) The one exception to this rule is the position of kohen gadol, which the Torah says does go to the son, notwithstanding the fact that it is a religious position. Thus, the Rashba’s case in which the son inherits his father’s position as chazzan (a religious position) is only because that was the accepted custom.
The Chasam Sofer rallies support for his approach based on the fact that the positions of nasi and head of the Sanhedrin did not usually pass from father to son, but instead passed to the most qualified scholar. Only the nesi’im from Hillel and onward passed the position from father to son. The Chasam Sofer explains that from the time of Hillel until the Sanhedrin disbanded, the nasi of the Sanhedrin was also viewed as the “king” of the Jewish people, thus making it a position of authority and not merely religious. During this era, the position was bequeathed to the oldest son of the previous nasi, if he was G-d-fearing and enough of a scholar to fulfill his duties. However, prior to this era, the position was viewed only as a religious role and, therefore, it was assigned to the greatest scholar in the Jewish people.
Based on his analysis, the Chasam Sofer concludes that the son of a deceased rav does not automatically have the right to the position. If most of the tzibur does not want him, they have a right to pick any other qualified G-d-fearing Torah scholar who is qualified enough to rule on the community’s needs. They are not required to choose the most qualified talmid chacham for the position. For example, they may choose a person who is a stronger leader over a bigger talmid chacham who does not have the same leadership abilities.
The Chasam Sofer closes his responsum with the following proof to his position: The Midrash, quoted by Rashi, states that when Moshe Rabbeinu asked Hashem to appoint a leader to head the Bnei Yisroel, he wanted his sons to be his replacement. Obviously, his sons had all the qualities that Moshe felt were necessary for the position – otherwise, why would he have thought that they should qualify? Yet, Hashem chose Yehoshua for other reasons. Thus, we see that the position of Torah leader over the Jewish people is not an inherited one.
When the Mishnah Berurah (53:83) discusses this matter, he cites the opinions we have mentioned without ruling on the matter. Thus, an individual congregation will need to ask a shaylah whether a son has the right to father’s position, where there is no established minhag and the community would like to appoint someone else.