Q: This past Yom Kippur, someone in our shul bought Maftir Yonah for a large sum of money. When he went home to rest after Mussaf, he fell into a deep sleep, and didn’t make it back to shul on time for the aliyah, which was then resold to a different person for the same amount.
Does the first person have any obligation to pay for the aliyah?
A: The key to answering this she’eilah lies in first delineating what occurs in halachah when someone purchases one of the kibbudim (honors) in shul.
Some Poskim rule that the sale of aliyos is akin to any other sale of an object (Shiyarei Knesses HaGedolah, Orach Chaim, Hagahos HaTur 147:3; Taz ibid. 153:11; Magen Avraham 306:15 with Levushei Srad; Emes L’Yaakov, Hilchos Sefer Torah 6). Although these honors are a davar she’ein bo mamash (intangible) for which typical kinyanim (acquisitional acts) don’t work (Choshen Mishpat 212:1), a kinyan situmta does work. Situmta is any type of transaction that is considered binding in typical commercial interactions (ibid. 201), and some Poskim rule that a situmta works even on a davar she’ein bo mamash (Yam Shel Shlomo, Bava Kamma 8:60). Since the way the aliyos are sold in your shul is typical of shuls everywhere, this would be a kinyan situmta (Emes L’Yaakov — Algazi, Toras Ha’olin l’Sefer Torah 38; Shu”t Panim Me’iros 2:25; see BHI issue 519 for an additional approach for this kinyan).
Other Poskim rule, however, that even situmta doesn’t apply in this case, either because they rule according to those who say situmta does not work for a davar she’ein bo mamash (see Pischei Teshuvah 201:2 and Shu”t Maharshag 2:77), or because they rule according to those who say that words (i.e., placing a bid) cannot create a kinyan situmta without a concrete action (see Shu”t HaRosh 12:3; Knesses Hagedolah, Hagahos HaTur 201:5; Shu”t Maharashag 3:113 & 114; see Kesef Hakodashim 201), or because those who bid on such honors have no intention of making a real kinyan (Shu”t Eretz Tzvi 39; cf. Shut Panim Me’iros loc. cit.).
According to this latter approach, bidding for a kibbud is, at most, a neder that the person will pay that amount to the shul (see Shu”t HaMabit 3:60; Shach, Yoreh De’ah 256:12; Shu”t Tzemach Tzedek 72). The Poskim discuss several consequences of this dispute, which we discussed in BHI issues 519-520).
In your case, according to the Poskim who say that purchasing aliyos is akin to a neder, it is quite plausible that there is an umdena (halachically binding presumption) that the bidder made the neder only on condition that he would actually receive the honor for which he bid. The person who overslept clearly did not intend to make the neder given that circumstance, so he is not obligated to pay (see Schach, Yoreh Dei’ah 251:9). On the other hand, it is possible that since he knows that if he oversleeps, the shul stands to lose a lot of money, perhaps the umdena is not strong enough to absolve him from payment (see Hayashar Vehatov 14 p. 86 and 21,p. 143).
According to the Poskim who consider this an ordinary purchase, it would appear that he cannot absolve himself from paying due to the oness (circumstance beyond his control) of oversleeping; since the kinyan already took place and the aliyah belonged to him, he may not void the sale, just as someone who bought an object and has no use for it may not decide not to pay for it.
In the specific story that happened in your shul, however, since the aliyah was ultimately resold for the same amount, the first purchaser clearly is not obligated to pay for it (see Magen Avraham 154:23).
