Wealthy No More

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by R. Gil Student

A charitable pledge constitutes a vow that must be fulfilled. However, like many vows, it can be nullified if proper regret is presented to a religious court, if it is shown to have been mistaken. If a rich person pledges a large sum of money to charity and then loses his fortune, he may annul his vow. But if he already gave the money to charity, can he ask for it back? This is not merely a question of pledges. For someone in that situation, it could mean the ability to pay his mortgage or his food bills.

I. Possession

The Tur (Yoreh De’ah 258) quotes a view (“some say”) that you may annul before a religious court a vow to give charity only if the money is still in your possession. The source is a responsum of the Rashba (1:656), in which he addresses a son claiming that his father — who had donated all of his belongings to charity before leaving on a dangerous trip — had changed his mind. Among the reasons the Rashba rules against the son is that the father was required to formally annul the vow in front of a beis din and that the father had already handed over the property, so that annulment would not even work. He compares a charitable donation in the hand of a gabbai (administrator) to terumah, the priestly portion of produce, in the hand of a kohen.

The Gemara (Nedarim 59a) asks why terumah is nullified in a mixture of 100. Shouldn’t it constitute a davar she-yeish lo matirin, something that can be made permissible, through nullification of the assignment/vow? A person who assigned a specific vegetable as terumah can nullify that assignment, thereby removing the need for nullification (bitul). In such cases, bitul doesn’t work. The Gemara answers that the terumah is already in the hands of a kohen. Once you give the terumah to a kohen, you can no longer nullify the assignment. Similarly, argues the Rashba, once you give charity to a gabbai, you can no longer nullify a vow. The Shulchan Arukh (Yoreh De’ah 258:6) rules like this Rashba.

However, the Noda Bi-Yehudah (2:YD:154) challenges this ruling. He points out that the Rosh quotes an alternate interpretation of the Gemara. Rav Eliezer of Metz explains that the kohen cannot annul the assignment because he never made it. The person who gave the terumah to the kohen still has the power to annul it but he has no concern with the mixture and bitul. The Rambam (Mishneh Torah, Hilkhos Terumos 4:17) seems to follow this approach, as well, since he does not mention any limitation on annulment.

II. Ownerless Transfer

The Noda Bi-Yehudah further argues that even those who explain the above Gemara as meaning that you cannot annul assignment of terumah after you give it to a kohen would disagree with the Rashba’s equation of charity with terumah. He quotes the Ran (Nedarim 85a s.v. u-me-ha shaminan) that nullifying terumah that a kohen took from hefker, property rendered ownerless, removes the terumah status but does not remove the kohen’s ownership. The Noda Bi-Yehudah explains that when a person declares produce to be terumah, he is relinquishing his ownership and rendering the food hefker. This allows any kohen to take it. Even if the person nullifies his declaration, he cannot undo the hefker and the kohen’s subsequent acquisition.

Similarly, when a person pledges money to charity, effectively he is relinquishing control and declaring the money hefker, albeit dedicated to charity. However, only an official gabbai appointed by the community can make an acquisition from hefker without the new owner (poor people) present. Anyone else cannot. If you donate to anyone other than an official gabbai, no one has acquired the money that you gave. If the you nullify your vow, you remove the pledge and can then reclaim your ownership. Therefore, says the Noda Bi-Yehudah, according to the Ran a donor can revoke his pledge even after giving it to an informal gabbai, as long as it has not been distributed to the poor.

The Noda Bi-Yehudah further points to a responsum of the Rosh (12:2) where the esteemed author notes that someone who pledges an animal to the Temple can annul that vow. The same rule, says the Rosh, should apply to a pledge to charity unless it has already been distributed to someone poor. The Noda Bi-Yehudah deduces that the Rosh would allow nullification if the money has been given to a gabbai, as long as it has not been distributed to the poor.

However, the Noda Bi-Yehudah is hesitant to rule against the Rashba, which would effectively be a ruling against with the Shulchan Arukh. Instead, he argues that the Rashba believes that nullification requires true regret. A gabbai can claim that he does not believe the donor’s regret. In doing so, the gabbai rejects the nullification and refuses to return the donation. But if the gabbai believes the donor’s regret, he is free to return the money.

III. Acquiring Terumah

The Oneg Yom Tov (no. 91) disagrees with the Noda Bi-Yehudah’s understanding of the mechanics of a donation of terumah or charity. You don’t render something ownerless when you declare it terumah or set it aside for charity. Rather, you give it to the kohen or the gabbai. And just like if you mistakenly give something away it remains yours, so too if you nullify the pledge the item remains yours.

Additionally, the Oneg Yom Tov argues that the rule that terumah cannot be nullified once it reaches the hand of a kohen follows the view of Rabbi Abba (who is mentioned in that Gemara in Nedarim 59a). Elsewhere (Baba Metzi’a 11a-b), Rabbi Abba disagrees with Rabbi Zeira whether a terumah pledge (tovas hana’ah) can be transferred through the methods of sudar or agav. According to Rabbi Abba, it cannot. Rather, as Rashi (ad loc., 11b s.v. einah mamon) explains, the donor renders the terumah ownerless and the kohen acquires the underlying field and then acquires the terumah through the mechanism of the field (kinyan chatzer).

The significance of the kohen’s hand only follows this complex logic of Rabbi Abba. Since we follow Rabbi Zeira and not Rabbi Abba in the other debate, the Oneg Yom Tov argues that we do not accord significance to terumah reaching the kohen’s hand. Rather, it follows the normal rules of a transaction. Therefore, if the terumah was given mistakenly, it still belongs to the original owner. Similarly, says the Oneg Yom Tov, if you pledged to charity and gave money to a gabbai, and the nullify the pledge as a mistake, the money still belongs to you.

However, if you gave money to charity without making a prior pledge, then you have no formal way of declaring it a mistake. In such a case, you can never ask for your money back. Therefore, it is best to pledge to charity first and then give, so you can ask for it back if you need it.

The Oneg Yom Tov concludes by pointing out that the Tur disagrees with his approach. The Shulchan Arukh does, as well. I take this to mean that he defers to those authorities and does not allow retrieving money from charity once you give it to a gabbai. In the end, we follow the authority of the Tur and Shulchan Arukh, despite alternate approaches.

(reposted from Oct. ’18)

About Gil Student

Rabbi Gil Student is the Editor of TorahMusings.com, a leading website on Orthodox Jewish scholarly subjects, and the Book Editor of the Orthodox Union’s Jewish Action magazine. He writes a popular column on issues of Jewish law and thought featured in newspapers and magazines, including The Jewish Link, The Jewish Echo and The Vues. In the past, he has served as the President of the small Jewish publisher Yashar Books and as the Managing Editor of OU Press. Rabbi Student currently is serving his third term on the Executive Committee of the Rabbinical Council of America and also serves as the Director of the Halacha Commission of the Rabbinical Alliance of America. He serves on the Editorial Board of Jewish Action magazineand the Board of OU Press. He has published four English books, the most recent titled Search Engine volume 2: Finding Meaning in Jewish Texts -- Jewish Leadership, and served as the American editor for Morasha Kehillat Yaakov: Essays in Honour of Chief Rabbi Lord Jonathan Sacks.

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