Sworn Statements

The Rema discusses a situation where a woman, to put her dying husband at ease, swore that she would not remarry after he died. The Rema rules that the wife does not need to keep the oath. It is similar to an oath made under duress, which is not valid. The same halachah is true regarding any individual who swore to a deathly ill patient that he would follow a certain course of action. He does not need to keep his oath if he swore simply to put the patient’s mind at ease. This would seemingly decide the original question—the son does not have to keep his commitment to his mother.

However, the Shvus Yaakov warns against jumping to conclusions from the Rema. Our question pertains to a son, who has a special mitzvah to carry out his parents’ wishes after they pass. Perhaps the added oath or binding commitment turns the mitzvah into an absolute obligation. No proof can be adduced from the Rema, who was discussing a wife or non-relative—they do not have the special mitzvah that a child has in carrying out his parents’ last wishes.

In fact, the Shvus Yaakov brings support to his position from an incident in the Chumash. Yaakov Avinu did not want to be buried in Egypt. Therefore, he called his son Yosef when his death was nearing, and made him swear that he would bury him in Eretz Yisrael (Bereishis 47:31). What was the point of the oath? Didn’t Yaakov Avinu know the halachah of the Rema that an oath made to a sick individual is worthless? Yosef would not be bound to keep his oath because he could say that he only swore in order to put his father’s mind at ease. It must be, concludes the Shvus Yaakov, that the Rema’s ruling does not apply to children. Since Yosef anyway had a mitzvah to fulfill Yaakov’s wishes, the oath he took turns the mitzvah into an absolute obligation.

The astute reader may ask: Wait a second; who said that Yaakov Avinu was sick at that point? If anything, the verse clearly indicates otherwise! The very next pasuk says, “And it came to pass after these things, that someone said to Yosef: ‘Behold, your father is sick.’” Apparently, when Yaakov adjured Yosef to make the oath, he was not sick!

The Shvus Yaakov, cognizant of this argument, points to Rashi on the pasuk where Yosef swore. After Yosef swore, Yaakov Avinu bowed “al rosh ha’mitah.” Rashi explains that the Divine Presence hovers by the head of a sick person. In fact, the Beis Hillel on Shulchan Aruch derives from this that someone who is visiting a sick person should not sit near the patient’s head because the Divine Presence is there (nor by the patient’s feet; see there). I have seen written that, all things begin equal, we should initially try to follow this opinion. However, the primary factor to consider is what makes the patient feel more comfortable. The Shvus Yaakov concludes that Yaakov Avinu was, in fact, deathly ill, as the pasuk states (47:29): “And the time drew near that Yisrael would die; and he called his son Yosef.” The later pasuk stating that Yosef was told that his father was ill means simply that the sickness intensified.

The Mahari Asad (C.M. 48) points out that the Ramban clearly disagrees with that understanding. The Ramban unambiguously states that Yaakov Avinu was not sick when he made his son swear. Yaakov Avinu felt his strength waning, yet he was not sick. Therefore, according to the Ramban, there is no basis for the Shvus Yaakov’s distinction.

Rav Zilberstein, shlita, suggests that perhaps the ruling of the Rema does not only apply to someone who is deathly ill; it may even apply to someone who feels he is nearing the end of his life. Perhaps even then we are concerned with his mental state. The Shvus Yaakov’s proof could then be in harmony with the Ramban. However, Rav Zilberstein does not rule conclusively on this matter. It therefore seems that the original question of whether a son must keep his oath to his dying mother is the subject of a dispute between the Shvus Yaakov and Mahari Asad. ™