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Shabbat Parashat Vaetchanan| 5764

Ask the Rabbi

Question: Someone promised to make a donation to a school, but he has not yet fulfilled his promise? Can this be enforced? Can I cite retribution if he does not agree to keep his promise?
Answer: Before we get into the particulars of the case, we should note that a Jew should always take great care to keep his word in monetary matters, as well as other matters (see Bava Metzia 49a). However, the demands that a person should make on himself and the ones others can enforce over him are two separate things.
 In general there is a concept that beit din can force someone to fulfill his tzedaka obligations properly (Shulchan Aruch 248:1). The classic case is where one did not make a pledge, but that the authorities in charge of tzedaka assessed that he should be giving a certain amount. Most poskim seem to assume that the same is true if one made a specific pledge to give tzedaka even if it is beyond his minimum requirement (see Tzedaka U’mishpat 1:(31)), as one’s pledges are called nidrei (oaths of) tzedaka and are binding like oaths.
 But one should understand what we are talking about. This coercion is not the right of a specific expected recipient to enforce that which is his by right. Rather it is the authority of beit din to see to it that people are fulfilling the mitzvot they should. We are not in the practice, to say the least, of forcing someone to put on tefillin or sit in the sukka, and such attempts, in our context, are usually counterproductive. For one to all of a sudden suggest that we should be aggressive with one who does not fulfill his obligation specifically in a given case is questionable from a few perspectives. It is possibly even counterproductive for the overall welfare of the institution that is awaiting payment. But we should investigate if there is ever a situation where the rights of the recipient become monetary, giving them an absolute right to sue for payment, whether or not it is within the overall best interests of the donor, the community or themselves.
 There is a concept in regard to donations to hekdesh (property of the Beit Hamikdash) that one’s word given to hekdesh is like handing over to a person. The Rashba (Shut I, 563) rules that such promises to charity are not binding without an act of acquisition. Similarly, the Rama (Choshen Mishpat 252:2) rules: “One who makes an oath to give a certain amount to a certain person and dies without giving, his inheritors are exempt from paying” (The implication is that this ruling applies to cases where the intended recipient was poor). On the other hand, the Rama (ibid. 212:7) says that if one makes a pledge to give the fruits of a tree to charity, and he is still alive when the fruit grows, he is obligated based on the laws of oaths to give them. The Netivot Hamishpat (250:4) makes the following distinction, which can reconcile the two rulings. If the donation is general, relating to a sum of money, then it doesn’t take hold until it is given. In contrast, if the donation is related to a specific item, then the obligation takes hold on the object. It sounds that, in this case, the donation was to be a sum of money, which does not take hold.
 There are other factors that could possibly exempt the pledger. The pledge is considered like an oath, classically, when it is to the poor. Here it is to a school, and it is not automatic that that is considered outright charity. While supporting Torah institutions is certainly a mitzva and a proper use of tzedaka funds (Shulchan Aruch, YD 249:15) the donor might claim that his money was not directed to enable Torah studies but was to be used for other purposes. (Some side expenses are necessary for Torah study even if they seem ancillary (see Pitchei Teshuva YD 259:5), but not all are.) If the pledger’s financial situation deteriorated drastically, he may have the right to make hatarat nedarim (Aruch Hashulchan, YD 258:17). There might be other claims (see some in Tzedaka U’mishpat, ch.4). While it is (very) possible that no valid excuse exists, it is not our place to make such a judgment without considering his explanations.
The way to go is to seek a way to work out the matter without threats of any sort.
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This edition of Hemdat Yamim
is dedicated to the memory of
R’ Meir ben Yechezkel Shraga Brachfeld o.b.m.

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