Does a Person with a Cochlear Implant Have the Halachic Status of “Cheresh”?

Rav Baruch Fried

Question: One of the people who is considered by halacha to be unable to participate in commerce is a “cheresh”. I have a business partner who is deaf and hears through a cochlear implant. Does he have the status of a cheresh?

Answer: Generally, this question is not so relevant because just like there is a takanah of Chazal that a child who understands commerce can engage in business transactions, so too, Chazal enacted that a cheresh who understands commerce can be involved in business. The one exception, however, is real estate. A true cheresh cannot engage in property transactions.

If someone with a cochlear implant is involved with real estate, we would have to determine if he is considered a cheresh.

Acharonim have long dealt with the question of someone who is technically a cheresh yet is obviously smart and acclimated. As a rule, they are hesitant to say definitively that such a person can ever have the status of a pikeach.

In other areas of halacha, if someone cannot hear but he can speak, many Rishonim say that he is considered a pikeach according to halacha. Again, however, they say that real estate is an exception and he cannot engage in transactions involving property.

Rav Moshe Feinstein has a teshuva about a person who can speak but cannot hear at all without the aid of a machine (similar to a cochlear implant). He says that such a person is in the category of a medaber v’aino shomea, he can speak but cannot hear, which renders him a regular bar daas for all matters with the exception of doing commerce with real estate.

This means that even if the person understands real estate very well, he technically still has the status of a cheresh and he cannot sell or buy properties. Essentially, an apotropus would have to be appointed to manage his transactions on his behalf. The laws of who can and cannot be an apotropus are complex but if he has a business partner, that partner might become his de-facto executor and make deals for him.

Even without an apotropus, if a cheresh does sell karkah, the deal is valid as long as no one protests. If the parties are worried that someone may protest at some point in the future and negate the deal, they should technically have an apotropus appointed to mitigate this concern.