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Shabbat Parashat Ki Tetzei| 5766

Moreshet Shaul

From the works of Hagaon Harav Shaul Yisraeli zt”l - The Status of a Legal Guardian’s Control Over Funds - Part I - Based on Chavot Binyamin, siman 61
 The plaintiff claimed that the deceased pledged 75,000 liras on behalf of his tzedakah organization before dying. The guardian of the deceased’s estate responded that even if this claim can be substantiated, it was only a promise, and the estate should not be responsible to carry it out. The money in question is part of a fund that was set aside for charity, with the guardian being empowered to decide which charity(ies) is most deserving.
 The lower court ruled as follows. There is an unresolved question whether the concept that a promise to the Beit Hamikdash is like a binding transaction applies to pledges to tzedakah as well. Since the rule is that one cannot remove money from one who is muchzak (has control) based on doubt, the guardian retains his rights over the money. [Rav Yisraeli z.t.l. and, yibadel l’chayim,Rav Elyashiv, were two of the dayanim who heard the appeal to this ruling. We now bring a summary of Rav Yisraeli’s opinion.]
 I agree with Rav Elyashiv’s opinion that the guardian is not considered an owner of the money in a manner that would afford him the status of muchzak. I would go a step further. The guardian does not even have the status of one who has tovat hana’ah in the funds. [Tovat hana’ah is the benefit one has regarding money or objects over which he has the ability to decide to whom it will go. At times and according to some opinions, these rights are considered monetary rights.] The reason is as follows. One who has tovat hana’ah has the right to give the money to whomever he desires, which may make it a monetary right. However, this guardian only has the authority to determine who is most deserving of the funds. Thus, he enjoys only credibility, not rights to decide in a manner that he deems beneficial for him.
 I differ with Rav Elyashiv in the following realm. Rav Elyashiv says that the guardian is a muchzak on behalf of the other tzedakah causes. This, in my opinion, is difficult. If he were to be considered holding on to the money on behalf of others, he would be like “one who seizes on behalf of a creditor when this seizing causes damages to others,” which does not work (see Bava Metzia 10a). The Netivot Hamishpat (Dinei Tefisa 21) says that even if he were appointed an agent to do so, such a seizebing is not valid. Even those who say that an agent can seize say so only where they were made agents for the purpose of seizing. In contrast, here the other tzedakot never instructed the guardian to seize. Only when the guardian is seizebing on behalf of one who is actually owed money could it work (Shulchan Aruch, Choshen Mishpat 105:1). However, here the charities are not owed money. Furthermore, here the guardian did not have intention to do an act of seizebing on anyone’s behalf. Rather, he is interested in giving the money to whoever deserves it, which is precisely what we are trying to determine in these deliberations. The Pnei Yehoshua goes as far as to say that it is forbidden to seize on behalf of someone without proper justification.
 If the guardian is not muchzak, then we have to look at this case as one of a doubt when either no one is muchzak or two people are equally muchzak. However, we should ostensibly answer the question of the doubt from the time it arose. When the man who was later to die made his pledge, the question arose whether or not it was legally binding from a monetary perspective. The donor himself, when he made the pledge, was muchzak. Once we decide that he can retain the money, the money is considered his, and it is then transferred to the auspices of the guardian upon his death. Regarding the mitzva to fulfill his promise, that mitzva disappears with the donor’s death. In any case, he can fulfill the obligation created by his promise by transferring the promised funds from one tzedakah to another.
 We continue the discussion of this matter next week.
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Hemdat Yamim is dedicated to the memory of
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