Shabbat Parashat Devarim 5773

P'ninat Mishpat: A Promise to Donate? – part II

Case: The plaintiff (=pl) is a non-profit organization that provides an important service for certain Israeli communities. Def, an acquaintance of one of pl’s leaders, had a connection with a certain community that was serviced by pl. Pl claims that the community did not meet their normal criteria, and pl provided the service (costing $30,750) only because def promised to raise (or donate) a large portion to cover the costs. Def claims that he did not ask pl to provide the service to the community but that in response to pl’s request that he raise money for the project, he had promised to try. Def says that he has only limited contacts he could ask for donations for pl, which he exhausted, and he never obligated himself to do more than that. 

Ruling: [Last week we saw two possible halachic frameworks that would justify requiring def to pay if indeed he had promised to do so. This time we will discuss others and complete our treatment of the case.]

In a parallel case, Rav Yisraeli viewed the pledger’s instructions to the recipient to act based on his pledge as shelichut (agency) on behalf of the pledger (Piskei Din Rabbaniim VIII, p. 251). One could suggest that the pledge is like a promise to give tzedaka, which is binding even without an act of kinyan (Shulchan Aruch, Yoreh Deah 258:6). However, this will not be effective in our case since it applies only when one promises tzedaka from his own resources, not when one promises to raise money from others.

According to a minority opinion within beit din, even if pl’s story is accurate, def would still not be obligated according to the letter of the law to pay anything because his promise was only to make efforts, not to succeed or pay on his own. However, he agrees that in a case like ours, where it is apparent that def did not make proper efforts to raise the money, there is room for partial payment based on compromise.

According to the majority, def would theoretically have to swear that he did not promise getting or giving payment to pl, and therefore in lieu of an oath there is room for a compromise of a payment of around a third (see Igrot Moshe, CM I:32). However, since the matter is up to the discretion of the dayanim on an individual basis, we must consider that in most of the gray area between the claims of the two sides, def is not required to pay. Beit din considered also that pl did not claim that def promised to pay the whole amount, just a significant part of it, and no exact number was given. This amount was also to be affected by the amount of effort going into it, so that factors like the global economic downturn impacted how much it would be fair to demand. On the other hand, def admitted that he had made a moral commitment to do some fundraising for pl, and it is hard to say that he fulfilled this pledge.

In considering all the factors, beit din obligates def to pay up to 16,000 shekels (out of a claim of $30,750), and reminds def that he can bring the money from different sources: his own, donors, his own ma’aser kesafim accounts.

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