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Shabbat Parashat Emor 5775

P'ninat Mishpat: Keeping the Donations in the Traditional Place

(based on Chelkat Yaakov, Choshen Mishpat 12)

Case: In a certain pre-war Jewish community, there was a time when there was no official chevra kadisha, and when someone died, they would call upon people from the region to carry out the burial preparations. The practice developed that the money the family would pay went to a needy, local Torah institution. The community decided that they needed a set chevra kadisha, which since its formation has been using money from the families to fund its own operations. The Torah institution says that since they are muchzak in proceeds of funeral charges, the chevra kadisha cannot deprive them. [I understand that the needs of the chevra kadisha did not warrant using all the money they receive.]  

 

Ruling: There is a concept of makirim (Gittin 30a), by which one who always gives his donations (of teruma, ma’aser, and ma’aser ani/tzedaka) to a certain person can consider it as if he already gave them even before he did any physical act of giving. The gemara (ibid., see Rashi ad loc.) does imply that the donor can decide not to give to his usual recipient as long as he did not give it even without an act of kinyan. However, he perpetrates a lack of good faith if he decides not to give (see Tosafot Bava Batra 123b), based on the concept that one who promises a small present must keep the promise. Therefore, since the people who deal with the funerals have given to a certain charity three times (see Taz, Yoreh Deah 10:17), it is improper to discontinue doing so.

Admittedly, the Yerushalmi (Gittin, ch. 3) says that there is no concept of makirin regarding ma’aser ani. However, that is assuming one has the right to decide to which ani he will give. Therefore, in our case, where those who gave to the Torah institution had the authority to give to whom they wanted, makirin would apply. It is also likely that the Yerushalmi said this because one considers the possibility that the poor person will escape poverty or die, two scenarios which limit the period he is expected to receive. In contrast, one cannot treat an institution that serves a whole public as one that is not expected to continue to exist, and makirin applies. In any case, the Rambam (Ma’aser 7:6) paskens that makirin does apply to the poor. Rav Yosef Engel cites a Midrash Tanchuma that applies the pasuk  of “do not steal from a poor person” to one who does not continue to support the poor person that he had in the past.

There is logic to say that makirin does not apply because there is no obligation for the donors to receive the money for their service that is slated for the Torah institution. However, this is not true, since the whole concept is based on the concept of the promise of a small present. Since it is natural for a good Jew to want to help in a mitzva, such as supporting a Torah institution, the commitment to do so falls under this category.

It is likely that we cannot apply here the idea that if one is making efforts to receive something, others cannot intervene and take it first (see Rama, Choshen Mishpat 237:1). However, based on the halacha of makirin, the group should be required to continue giving something to the Torah institution, and they should come to a compromise as to how much.
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