by R. Gidon Rothstein
8 Av: R. Ovadya Yosef on Using Money for a Different Purpose Than Raised
In my searches for responsa on a given date, some respondents were so prolific that they appear almost daily, usually with multiple entries (such as Chatam Sofer, Shu”t Shoel ve-Nishal, and R. Moshe Feinstein). R. Ovadya Yosef, for all the volume of his writings, did not date his responsa as consistently, so I don’t always have the opportunity to share his ideas.
Let’s take advantage of this one.
Money for a Synagogue and Mikveh
Yabia Omer 7 Orach Chayyim 25, dated 8 Av, 5732 (1972), answers a question from the Jewish community of Teheran [before the revolution seven years later]. They had collected money for a new beit kenesset [it feels wrong to refer to it as a shul when neither party to the conversation would have used that word], since the old one could not hold all the people in the neighborhood, and to build a new mikveh, as the existing one was very far away.
After ten years of fundraising, the heads of the community had come to accept that the money was not forthcoming, and wanted to divert what they had raised to other, doable projects. As justification, they noted the halachic principle that hazmanah lav milta, declaring something to be for a certain purpose does not make it so [for example, we don’t treat a bathroom as such, for some halachic purposes, until it’s actually used]. They’re asking R. Ovadya Yosef’s opinion.
Limits on Switching Funds Raised for One Purpose
Rambam, Laws of Prayer 11;15, ruled (and Tur and Shulchan Aruch agreed) that money raised for one purpose can only be changed to a need of a higher level of sanctity. If they fulfilled the purpose and had money left over, the extra money can go to whatever they decide.
Ramach expressed surprise for two reasons. First, hazmanah lav milta, as we rule, means that an item doesn’t become sanctified until used for its intended purpose. More, that whole principle applies to the materials for a need, like the bricks for a building, or the material for a piece of clothing. The money used to buy the materials is one step removed, and less implicated than even hazmanah.
To support Ramach’s claims, R. Ovadya Yosef notes that a responsum of Rosh that allowed changing money collected for a synagogue to other purposes, but thought they had to be for more sanctified ones, such as Torah study, like Rambam. That’s despite anticipating Ramach’s idea that money is too removed from the goal to be considered set aside for that as hazmanah.
Rashba and Rashbatz both also thought that communities can repurpose collected money, as long it wasn’t for purposes that are derogatory or lacking in value.
Meiri held that the major point of that discussion was that leftover money could be used for another purpose—in his view, it was obvious that money collected but not used could be switched. What was new was that money that had started being used for one intent could, if not needed for that, be used for something else.
Ashkenazic decisors had made similar comments, such as Maharam of Rothenburg and Terumat haDeshen. R. Ovadya says that with all that, we need to answer Ramach’s questions.
Hazmanah or Action?
Bach in his commentary on Tur argued that hazmanah wasn’t the relevant category, because putting money into the hands of those authorized to spend it isn’t preparing the money, it’s actually giving it. Yoreh Deah 259 said such money can’t be changed; Bach suggests it’s because giving qualifies as an halachic act, establishing this money for its purpose [as would be actually praying in a building that was going to be a synagogue].
If the money couldn’t be used for that purpose, and the giving wasn’t an act, we’d have to return it to the donors, but no one expects that—donors always assume that once they’ve given the money, it’s going to be used, one way or other.
Erech Hashulchan cited Taz to Orach Chayyim 153;2 who offered a different way of looking at it. He said it’s a matter of neder, a vow to donate to a cause of a certain level of sanctity. Until the money has been used for that cause or one of a higher level of sanctity, the vow has not yet been fulfilled. A shul that has been built but not used is not yet a shul; but the money donated for it has also not yet been used for its intended purpose, so the donors’ vows have not yet been kept. For that latter reason, they could not change the building to some lesser purpose.
R. Ya’akov Emden in Mor U-Ketziah also thought of it as a vow, while Magen Avraham had spoken of ikchushei mitzvah, reducing or removing a mitzvah from the world [they had intended to do a mitzvah with this money that’s now being negated], and Ran had said that it was specific to tzedakah that we don’t want to change it away from its donated cause.
All of them, in other words, were saying that donated moneys are more linked to their intended purpose even than physical materials set aside for a certain cause, thus fitting well with Rambam and the Shulchan Aruch.
The Value of Building a Mikveh
Returning to the case at hand, R the money was not enough for a synagogue, but was enough for a mikveh. Building an easily accessible and attractive mikveh could keep women and their husbands from violating karet prohibitions, a cause whose importance should be clear to the leadership of the community, particularly its Torah scholars, who know the importance of proper awe of Hashem and concern with keeping His mitzvot. To R. Ovadya, it was clearly more valuable than putting up a new synagogue building.
This is all the more so since many include niddah [a woman who has sexual relations without having gone to mikveh since menstruating] among the arayot, the sexually improper relationships that one has to be killed rather than transgress, as did Rashba and R. Shlomo Kluger. Even those who disagreed, such as Penei Yehoshua, R. Yitzchak Elchanan Spektor, and other acharonim, agree that each act of sexual relations violates a karet prohibition.
For that reason, Chafetz Chayyim held that a Jew may not live in a city without a mikveh, and that the members of the community can force each other to donate to building it [the question of how much to collect from each member is one that R. Moshe Feinstein dealt with in a responsum dated 25 Av 5721, which I summarized in my audio shiurim, A Responsum a Day, at ou.org]. That includes post-menopausal women and their husbands, though they no longer have the need to use that mikveh nearly as often. That’s because Chosen Mishpat 163;3 rules that establishing a mikveh is prior to building a synagogue or buying a sefer Torah or any other communal mitzvot.
Chazon Ish also prioritized mikveh over building a shul, based on Eruvin 32b saying that those concerned with observance prefer transgressing minor matters to protect the unlearned from more serious violations. Better to give up on having a shul (also obligatory, but a need that yields to mikveh) than risk the unlearned not using a mikveh and incurring terrible liability.
That’s all the more true of the synagogue in Teheran, where the problem of size only arose on the High Holidays. Certainly, the communal leaders needed to focus more on mikveh observance, a mitzvah our foremothers kept in much more difficult circumstances (such as immersing in cold winter rivers or lakes, since they had no other options). Letting people know the seriousness of the matter should help greatly in encouraging them to make use of the clean, warm mikveh this money can be used to build.
He closes with the usual blessings related to the topic (as will we), that immersion in mikvaot will lead Hashem to (as a verse says) sprinkle on us purifying waters, and return all our distant ones to Zion, redeemed by Hashem.