Siman 258

Just as with nedarim, where designation through association is effective when one vowed regarding this loaf and said regarding another loaf that it shall be like this loaf, so too regarding tzedakah, for tzedakah is also a type of neder. Therefore, if a sela of tzedakah was lying before him and he said regarding another sela, "This shall be like this one"—it is tzedakah. And even if he did not use a clear expression that this sela shall be like this one, but rather he set aside a sela and said, "This is tzedakah," and said regarding another sela, "and this," and did not say "and this is like this," where it is possible to interpret that his intention was that this sela should be for his household expenses, nevertheless it is a designation through association, and the second one is also tzedakah. And in Nedarim (Nedarim 7a), the Gemara remained in doubt regarding this law, whether there is a "handle" for tzedakah or there is no "handle" for tzedakah, and it explains it in this manner, see there. However, from the words of the Rambam at the beginning of the eighth chapter it appears explicitly that it is certain tzedakah, see there. And they hold that the inquiry was resolved. (Because it says there: "If you will say there is a handle for tzedakah," and according to the principle of the Geonim, whenever it says "If you will say," it is a resolution. See the Ran there.)

But all the Rishonim wrote that even though it remains in a state of teiku—a doubt regarding a prohibition is resolved stringently (the Rosh, and the Rashba, and the Nimukei Yosef, and so wrote the Ramban there). Therefore, we explained in Choshen Mishpat siman 273 section 14 that regarding hefker in a case of doubt—one does not remove it from the possession of the owners. And there in the Gemara it remained in doubt regarding this law of hefker, and we explained that it is not similar to tzedakah where we follow the stringent view, see there. And there are some of our teachers who rejected this, and hold that in any monetary matter, even if there is also a prohibition involved—one follows the lenient view, and one does not remove it from the hand of the possessor in a case of doubt (the Ran there). And this matter is explicit in Chullin (Chullin 134a) regarding a doubt of leket, that one does not remove it from the hand of the homeowner if not for the reason of a presumption of obligation, and so it is implied in the Kesef Mishneh (ibid.). And so the Rashba himself wrote in a responsum (Part 1, end of siman 656), that wherever there is a doubt regarding hekdesh—one does not remove money from its owners, see there. And so it is implied from the words of the Rosh as well in Bava Batra (Chapter 9, section 23). And there is one who answered that certainly every monetary doubt is resolved leniently, even in a matter of prohibition. And only regarding tzedakah, since he vowed with his mouth and must fulfill "that which has gone out of your lips you shall observe"—one follows the stringent view (the Ran, beginning of Nedarim, see there). And so it appears, just as we hold that a doubt regarding vows is resolved stringently, so too a doubt regarding tzedakah where he expressed the tzedakah with his mouth—it is also a vow. And more will be explained regarding this with the help of Heaven in siman 259 section 15, see there.

There is one of the great authorities who wrote that a person cannot appoint an agent to consecrate something to hekdesh from his own property, for the speech of hekdesh is "words," and they are not handed over to an agent (Maharit). Many wondered at him: what relevance is there to "words are not handed over to an agent"? For there the intent is that when one appoints an agent for mere words—the agent cannot hand them over to another agent, as is explained at the end of the sixth chapter of Gittin. But to appoint an agent for words—certainly it is within one's power (see Pitchei Teshuva, small subsection 1, who cited several who rejected his words for this reason). And I say that his words are correct. And it is merely a common expression that he used this language of "words are not handed over to an agent," and the law is a true law. For behold, all types of consecrations and charities are a part of the categories of vows, as the Rambam and all the poskim wrote at the beginning of the laws of vows (Rambam, Laws of Vows). And our teacher, the Beit Yosef, already wrote in Orach Chaim at the end of siman 334 that one cannot vow through an agent, see there. And if so, it follows automatically that he also cannot consecrate through an agent. And certainly if he said "take from my money such and such and give to charity" or "take such an object and give it to hekdesh or to the synagogue"—he makes him an agent over the money and the object. But if he says "vow on my behalf for charity" or "consecrate on my behalf to hekdesh"—this is nothing. And that which he wrote "words are not handed over to an agent," his intention was that words of hekdesh and charity are not handed over to an agent. And this is certainly so.

Our teacher, the Rema, wrote in section 1 (Shulchan Aruch Yoreh Deah 258:1): A person should not say "this sela is for hekdesh," but rather "for tzedakah." Nevertheless, if he said "for hekdesh" without specification—his intention is for tzedakah for the poor. However, if he said that his intention was for actual hekdesh—he has no remedy to benefit from it. He must ask a sage, and they permit it for him through regret like any other neder. Thus far his words. And all of his words are explained: For certainly there is no hekdesh in this time, and it is forbidden to consecrate hekdesh in this time, as it is stated in Bekhorot (Bekhorot 53a): We do not consecrate and we do not perform valuations etc. in this time. The Rambam ruled accordingly at the end of the laws of valuations. However, among us, when we say the term "hekdesh," our intention is also not for the hekdesh of the Sanctuary, for we are not accustomed to this at all. Rather, we call a matter of mitzvah by the term "hekdesh," meaning: a holy thing. And in our countries, they are accustomed to calling the location of the hospital, as well as the place where the poor gather, by the name "hekdesh."

However, one must scrutinize what he wrote: that if he said his intention was for actual hekdesh—he has no remedy except through a request for annulment, which implies that without this there is no remedy at all. But the Rambam there wrote a simple remedy, which is that he should redeem it for a perutah and cast the perutah into the Dead Sea; see there. And this is explicitly stated in the Gemara in Arachin (Arachin 29a). And there it said four zuz; see there. And also from the essential law of the Torah it is so, for we hold that hekdesh worth a maneh that was redeemed for the value of a perutah—it is redeemed (Bava Metzia 57a). And during the time of the Temple this is only ex post facto, but in this time it is permitted even ab initio. And that which was required there, four zuz—was in order to publicize the matter, as the Rambam wrote, and so it is in Arachin there. And it must be said that because our teachers the Tosafists wrote in several places that this remedy is only for land and not for movable property, therefore he did not write this remedy (see Shach, subsection 3). But the Rambam and the Ra'avad wrote explicitly that even for movable property this remedy is effective, and so the opinion of the Rif is clarified in the first chapter of Avodah Zarah, where he wrote regarding that which we do not consecrate in this time, that if he redeems it for the value of a perutah—it is fine, etc. Thus far his words. And even though the Ran wondered about him, since in Arachin there they required four zuz to publicize the matter, it appears they were not concerned for this. And so in the Halachot Gedolot, Laws of Orlah, and in the She'iltot, Parshat Kedoshim, they wrote the value of a perutah. And it appears that they hold that specifically in the time of the Shas, when they were still close to the time of the Destruction, they were concerned for publicizing the matter, but not in this time. Therefore, for the law, one certainly may rely on all these teachers of ours, and redeem the hekdesh with a small coin, and cast it into a place of destruction, and the movable property will be permitted.

And in that which he wrote, that we permit it for him through regret like other vows—he informs us that even though it is a matter of a mitzvah, and regarding a matter of a mitzvah it is not proper to open with regret, and one requires an opening as I wrote in siman 228, nevertheless here it is not a mitzvah but rather a transgression, and it is rightly permitted through regret. (See Shach, subsection 4, who brought a responsum of Rabbi Betzalel that vows of tzedakah are not permitted through regret. And I wonder: what is the connection of this to that? For here it is a transgression, and not a mitzvah, and all agree that regret suffices. Examine it and you will find it simple.)

Since it has been explained that the term "hekdesh" for us refers to charity for the poor, and likewise when one says "hekdesh to Heaven" the intention is also for the poor, and we find this language in Taanit (Taanit 24a): By the service, they are hekdesh to you, and you have no right to them except as one of the poor of Israel, see there—consequently the term "hekdesh" even in their days was not literal hekdesh. For if so, how would she be permitted to benefit as one of the poor of Israel? Rather, the term "hekdesh" refers to the poor. And we find in Gittin (Gittin 38b) that the term hekdesh is not precise, and that it means they should be a "holy people," see there. (And the language "sanctified to Heaven" I have not found except regarding hekdesh at the end of the fifth chapter of Nedarim, and in Bava Batra 133b. And I saw in the Pitchei Teshuva, subsection 3, that "hekdesh to Heaven" is for the poor. And the proof is from R. Eliezer of Birta, so it must be said, see there. And that language is not there as I have written. Nevertheless, even without proof we are able to say so.)

It is a simple matter that when one consecrates some land to tzedakah—it should be redeemed according to the assessment of three experts. And even though it is explained in the first chapter of Sanhedrin (Sanhedrin 15a) that the redemption of lands from hekdesh requires ten and one of them a kohen—this is a scriptural decree regarding hekdesh. However, regarding tzedakah, three are sufficient, as with all assessments. And so too, one who says "my value is upon me for tzedakah"—they assess him as a slave, and he gives to tzedakah. And so too, if he consecrated his body, or half of his body, or a quarter of his body, or any organ upon which life depends—it is necessary to assess his body, and this he shall pay to tzedakah. And the assessment is also by three, as I have written (Pitchei Teshuvah in the name of Maharal Chaviv).

Our teacher, the Rema, wrote in section 2 (Shulchan Aruch Yoreh Deah 258:2): And if he intended to say regarding this sela, and expressed with his lips regarding another—it is an error and is nothing. Thus far his words. And there is one who explained that it is nothing regarding both of them (Taz, subsection 2). And there is one who explained that this which he expressed from his mouth in error is nothing, but that which he thought in his heart to give—he is obligated, for the obligation of tzedakah is also in the heart alone (Shach, subsection 5). And in truth they are two opinions, and our teacher, the Rema, brought them at the end of this siman (Shulchan Aruch Yoreh Deah 258), and ruled stringently. And we have already brought this in Choshen Mishpat siman 212, section 10, see there. However, here it works well even according to the opinion of the one who is stringent, for certainly if he resolved in his heart to give this sela to tzedakah—he is obligated to give. But if he did not resolve completely in his heart, but rather thought to say this sela for tzedakah, and stumbled with his mouth regarding another sela—certainly this is not called "resolved in his heart." (And there is no need to press as the Shach wrote there, that he resolved in his heart that it should not be tzedakah until he expresses it with his mouth, see there. And it is a wonder, for why would he think so? Furthermore: if so, the words of the Rema are obscure. But according to what I have written, "resolved in his heart" is a different matter. And see Magen Avraham siman 562, subsection 11, who wrote also regarding the matter of a fast that it is specifically when he accepted upon himself in his heart to fast. But if it was in his mind to fast—it is not called acceptance in the heart, see there. And here too it is so. Examine and you will find it simple.)

One who vows tzedakah and does not know how much he vowed—he increases giving until he says, "I did not intend this." Thus ruled the Rambam, the Tur, and the Shulchan Aruch, section 3 (Shulchan Aruch Yoreh Deah 258:3). And they learned this from that which we learned in the Mishnah at the end of Menachot (Menachot 106b) regarding hekdesh: "I specified and I do not know what I specified"—he must bring until he says, "I did not intend this." And consequently, the same law applies to tzedakah. And it appears that even according to the opinion in section 2 (Shulchan Aruch Yoreh Deah 258:2), that also regarding tzedakah, since it is a matter of money, we do not extract from the one in possession, nevertheless, the obligation is cast upon him. However, it is certain that he can annul his vow through an opening, for had he known that he would forget—he would not have vowed, and they annul it for him.

One who says: "Give one hundred zuz or a sefer Torah to the beit knesset," and did not specify to which beit knesset—they shall give it to the beit knesset where he is accustomed to pray, in the city where he dwells. The Tur and our teacher, the Rema, in section 4 (Shulchan Aruch Yoreh Deah 258:4) wrote that if he is accustomed to both—they shall give to both. Thus far his words. Half to this one and half to that one (Shach, subsection 6). And I do not understand: for this is well regarding money, but regarding a sefer Torah, how is "half" applicable? And indeed, in the Tosefta Bava Kamma chapter eleven it is brought in this wording, and so the Rashbam cited it in Bava Batra (Bava Batra 43b). And it must be said that they shall rotate with it, one year in this beit knesset and one year in the second beit knesset. And I am wondered that they did not explain this matter in the Shulchan Aruch and in the commentators of the Shulchan Aruch. And perhaps they hold that indeed this does not refer except to money and not to a sefer Torah, and regarding a sefer Torah it is necessary to see in which beit knesset he is more accustomed, and they shall give it there. And it appears to me that all this is when he is not before us, such as if he died or went to distant places. But when he is here—he is believed to say that his intention was for such-and-such a beit knesset, and so too in all the laws that will be explained in similar cases. And a proof for this is from Nedarim, that he is believed to say that such was his intention, and even regarding a remote matter, as I wrote in siman 208, see there.

And so too, one who says "give a maneh to the poor," and did not specify to which poor—they shall give to the poor of that city in which he dwells, even if he said it in another place. And so too in the previous law. And if he does not have a fixed dwelling in one place—it shall be given to the poor of that city where he was at the time of the vow (Bach and Shach subsection 8). Our teacher, the Rema, wrote: One who says to give oil for illumination—he shall give to the beit knesset and not to the beit midrash. For in the common language of people, "illumination" unspecified refers to the beit knesset (Taz subsection 3). And it appears to me that this was in their days, when in every city there was a beit knesset, and it was the primary place of prayer. But in these days of ours, when in many cities a beit knesset is not found at all, and even in a city where there is a beit knesset it is not the primary place for the prayer of most of the city's people as is known—they give to the place where he is accustomed to pray.

Our teacher, the Rema, wrote that all this is the default case. However, in a place where his intention is known—that he did not intend for the poor of that city alone, such as in places where it is the practice of the wealthy to give much to tzedakah at the time of their death, and it is the practice to distribute those funds to all poor (even to other cities)—one follows this. And even if he vowed without specification (and there is a custom regarding this), one follows the custom. Their heirs shall distribute the tzedakah to all the poor who are good in their eyes, even if they are not in their city. And even if that tzedakah was deposited and placed in the hand of another, they shall give it to the heirs and inform them that he vowed thus. Thus far his words. And even if the depositary has a migo, in that he could have distributed it as he wished, and even if he is a gabbai, nevertheless, since he was not granted authority to be the distributor, he must give it to the heirs (Shach, subsection 9). But if he says that he was granted authority that he should give them to tzedakah, he is certainly believed, and he shall distribute them as he sees fit (Taz, subsection 4). And even if he does not have a migo, such as if it is known to all that he left money in his hand, he is believed, since we have nothing with which to contradict him. (So it appears to me from the wording of the Taz, who did not mention a migo at all. And so it is implied from the wording of the Mordechai that he cited; see there.)

And know that one must be precise with the wording of our teacher, the Rema. For since he wrote that we follow the custom, and certainly it is so that anyone who gives does so with the intent of the custom (the Gra, subsection 9) – if so, why did he write that the heirs shall divide it to any poor people who seem good in their eyes? He should have said that they should act according to the custom. And if his intention is that the custom is to give it to the heirs, he should have specified so. And it appears to me that this is the explanation: For certainly regarding this, there is no applicable custom as to whom to distribute the tzedakah, nor who is the distributor. For certainly sometimes this wealthy man will command that so-and-so shall be the distributor, and this wealthy man will command that so-and-so shall be the distributor. Rather, the custom is not to distribute them all in one place. And regarding this he says: Since he did not command who should be the distributor, therefore presumably his intention was more that the heirs should be the distributors, and they shall distribute as appears proper in their eyes, but not to give all of it in one place.

He further wrote: One who obligates himself to a fine for tzedakah and transgressed—he must give them to the poor of the city. And he cannot say that he will give them to other poor people, and the gabbai can sue him, for it is called money that has claimants. Thus far his words. That is to say: for seemingly he could have said that the city gabbai is only over fixed tzedakah, but regarding incidental tzedakah such as from a fine—granted that he is obligated to give, but nevertheless he should distribute them according to his will, like one who voluntarily gives some tzedakah that is not fixed. It comes to teach us that this is not so: for certainly one who gives of his own will, it depends on his intent, which is not the case when they compelled him to this by way of the fine—he is not like the owner over this, but rather the city gabbai has authority over this, and therefore he is obligated to hand it over to him. And behold, it is included in the fixed tzedakah of the city.

And for this reason he concludes: But one who consecrated much money, and appointed his heirs over it to distribute it as they see fit, even to the poor of another city—it is called money that has no claimants, and the gaba'im of the city cannot coerce them or claim from them that they fulfill the will of the deceased. And even though they transgress and rob the poor, nevertheless it is called money that has no claimants, since they can distribute to whomever they wish. And even if the apitropsim were two, and one of them died, the community cannot appoint another, but the remaining one shall do what he wishes, as the giver commanded. And even regarding the tzedakah of the residents of a city—no person can claim tzedakah unless he has authorization from the gabai or from the tuvei ha'ir. And one who consecrates money for tzedakah and does not have the means to pay—they arrange for him as they do for other debtors. Thus far his words.

It appears to me that it is indeed true that the gabba'im cannot compel them, and it is money that has no claimants. And so it is explained in Choshen Mishpat siman 301, that in such a case they are exempt from the laws of guardians since it is money that has no claimants; nevertheless, the beit din can compel them to fulfill the will, for let it be no less than any other mitzvah. And it further appears that the obligation is upon the beit din to compel them to fulfill the will. And regarding that which he wrote, that when he appointed two and one of them died they cannot appoint another, but rather the remaining one shall do as he wishes—and this is from the responsa of the Rashba—there is one who wondered about this, for perhaps the testator only trusted two (Taz subsection 5). However, one can say as our teacher, the Rema, wrote above in siman 216, section 7, that wherever it says "Ploni and Ploni," it implies even one of them, unless he specifies to you "both of them together." Thus far his words, and this is also from the responsa of the Rashba, see there. If so, the Rashba follows his own reasoning. However, this appears to depend on the context of the will; if his intention was specifically for two, they appoint another in his place. And if not, the one remains. However, they wrote that it is already the custom to examine and supervise the affairs of apitropsim, and trustworthiness has diminished, and many orphans have had their property lost through apitropsim. Therefore, they certainly appoint another trustworthy man in place of the first who died (Taz ibid.). And that which he wrote, that regarding the tzedakah of the city people, no person can claim the tzedakah unless he has authorization from the gabbai—this is certainly true. But nevertheless, if one or two of the city people make a donation for someone, the gabbai cannot protest against them and say that by this they ruin the permanent tzedakah (Chachmat Adam). And such is the simple custom in all the dispersions of Israel. (And that which he wrote: one who consecrates and does not have enough to pay, they arrange for him—I wonder why he does not request absolution for his vow? And one cannot say that it deals with after it came into the hand of the gabbai, for one does not request absolution then as will be explained, for if so, it is not relevant that he does not have enough to pay. And it must be said that in truth such is the law, and it does not deal with this but rather says that the law of "arrangement" exists in tzedakah just as with a debtor).

One who vows tzedakah cannot retract it. And even though it is money that has no claimants, for if this poor person claims it he may say "I will give to another," nevertheless, he is obligated to Heaven immediately when he vows with his mouth. As we expound in Rosh Hashanah (Rosh Hashanah 6a): "With your mouth" – this is tzedakah, see there. However, he can request release from his vow from a sage as with other vows, but this is only before he has handed over the tzedakah into the hand of the gabbai. But after he has handed it over to the hand of the gabbai – release is not effective, just as with terumah in the hand of a kohen where release is not effective, as we say in Nedarim (Nedarim 59a). This is the wording of the Tur: A person's speech to the Most High is like his delivery to a commoner. Therefore, one who vows tzedakah cannot retract it. And these words apply without release, but etc. Thus far his words. And behold, this principle that speech to the Most High is like delivery to a commoner is a Mishnah in the first chapter of Kiddushin (Kiddushin 28b). And this applies only to Temple sanctities and the maintenance of the Temple. But tzedakah has the law of a commoner, as I wrote in Choshen Mishpat siman 95. Rather, the Tur merely employed a common expression, for regarding this law that one becomes obligated by the speech of the mouth – tzedakah is equal to hekdesh by reason of the Scriptural decree "with your mouth" – this is tzedakah, for it is a vow like all vows. And one should not ask: if speech to the Most High is like delivery to a commoner, how is release effective? For it can be said as I wrote, that this applies only to absolute hekdesh. Furthermore: even regarding absolute hekdesh, release is effective as with all vows, for when he requests release for it – it is like hekdesh in error. (And proof for this is from Tosafot ibid. 29a (Kiddushin 29a) s.v. mashchu.) And then it is not like delivery to a commoner. (And I do not understand that which the Beit Yosef wrote in Bedek HaBayit in the name of the Rashba, that we do not say his speech to the Most High etc. regarding the hekdesh of the poor, and he can retract it. Thus far his words. And it requires further study: for "with your mouth" – this is tzedakah. And if it is because release is possible, behold, even regarding absolute hekdesh release is effective, and for the reason we explained. And it requires great study.)

And I saw one who wrote that one who vowed something to tzedakah cannot retract it even within the time of a speech-interval, because a statement to the Most High is like delivery to a commoner (Pitchei Teshuvah subsection 7 in the name of VeShav HaKohen, see there). And these are astonishing words: First, for the Rashba already wrote, and our teacher, the Beit Yosef, brought him in his great book in this siman, that we do not say his statement to the Most High is like delivery to a commoner regarding hekdesh and the poor, see there. And it is a decided halakhah in Choshen Mishpat siman 95 that all hekdesh for the poor and for the synagogue and for a Sefer Torah—their law is like a commoner. Furthermore: even regarding hekdesh for the altar, who says that within a speech-interval he cannot retract it? For the halakhah was decided in Bava Batra (Bava Batra 129b) that in the entire Torah, within a speech-interval is like the speech itself, except for idolatry and kiddushin. And in Nedarim (Nedarim 87a) it says: except for idolatry, and a blasphemer, and one who betrothes, and one who divorces. And it is the same thing, as the Tosafot wrote. But in all other matters, he can retract. And that which they said a statement is like delivery, this is if he did not retract within a speech-interval. And behold, all hekdesh and tzedakah are a part of the categories of nedarim, as the Rambam wrote at the beginning of the Laws of Nedarim. And regarding nedarim, we hold that he can retract within a speech-interval, as I wrote above in siman 210, see there. Furthermore: for the Rambam at the end of the second chapter of Shevuot explained the matter, that retraction within a speech-interval is similar to one who errs, see there. If so, how is it relevant to say regarding this that it is like his delivery to a commoner?

And it is true that the Rambam at the beginning of the fifteenth chapter of the Laws of the Act of Sacrifices wrote that there is no retraction in hekdesh, even within the time of a speech. Thus far his words. However, many great authorities have already wondered at his words (the Lechem Mishneh there, and the Shach in Choshen Mishpat siman 255 subsection 8, and the Sma there subsection 14, and others). And there are two explicit sugyot that even regarding kodashim, within the time of a speech is effective: the first in Merubeh (Bava Kamma 73b) and the second in Temurah (Temurah 25b). And they labored to settle his words, for such was his version of the text in Bava Kamma there. However, according to the halacha it is certainly not so even according to the Rambam, for this is not relevant to tzedakot in this time whose law is like that of a commoner. And so all the great authorities decided, and so is the essence of the law. (And see what I wrote in Choshen Mishpat siman 255 section 5. And one who is stringent should be stringent for himself.)

One who vowed to give a poor person a certain amount of support each week, or to a widow or to orphans, and afterwards they became wealthy or some other matter occurred such that they no longer need the support—the matter is simple: the giver does not need to annul their vow. For we follow the assessment that the intention of the giver was only for as long as they would need it (ibid. in the name of the Chatam Sofer). And you have no greater assessment than this. Therefore, one who vowed to give to a poor person, and before he handed it over to him or acquired it for him through another it became known to him that he no longer needs it; and it is not only necessary to say that if even at the time of his vow he did not need it, it would be a vow made in error, but even if it was only afterwards that it arose that they do not need it—he does not need annulment. For we follow the assessment, and it is as if he explicitly stated "on condition that he needs it." And there is one who disagrees on this and requires annulment (see there in the name of the Panim Meirot), but it is not clear to me.

And that which has been explained, that when one has handed it over to a gabbai one may not seek a release from it, some say that it is not specifically a gabbai, and the same law applies if he handed it over to another. Only since it has left his hand—he can no longer seek a release from it (see Hoshen Mishpat siman 125 in the Sma subsection 25, and in the Shach subsection 27). And although there is one who is uncertain regarding this, we have already explained in Hoshen Mishpat at the beginning of siman 125 that this is the primary ruling in the law. And so it is explained from the wording of the Tur, who did not write the term "gabbai" but wrote that one may seek a release from a sage as long as it has not left his hand, see there. And it implies explicitly that when it has left his hand, even if not into the hand of a gabbai—one may not seek a release for this. Unless when he said to him at the time of giving it into his hand, "Let the money be placed in your hand until I command you to give it to so-and-so," for then he is nothing but his agent, and he can seek a release for it. But if he said to him, "Give this to so-and-so"—he becomes like a gabbai, and has acquired it on his behalf. (And see Noda Biyehudah Tinyana siman 50. And according to what I have written, everything settles well. And it appears that according to his statement at the time of the handing over the law will be clarified, and there is no dispute here. Examine it and you will find it simple.)

And it is a simple matter that specifically when he handed it over to the hand of another, a request for annulment is not effective; but as long as he has not handed it over to the hand of another, even if he designated a place for it among his own tzedakah money—this is nothing, and he may request annulment for it (ibid.). And know that they wrote in the name of Radbaz that the sage who permits a vow of tzedakah is worthy of punishment, for he causes a loss to the poor. And I say that certainly if he is wealthy, but retracts because he is a miser or for another reason, he is certainly worthy of punishment. And who would attend to the annulment of such a vow? But if the sage sees that it is heavy upon him to bear this burden, and this vower vowed in his haste without deliberation—it is certainly a mitzvah to permit it to him. And everything is according to the matter. And if the vower said, "I have annulled my vow"—he is believed, and there is no power in the hand of the beit din to compel him. However, if the beit din understands that he is acting craftily in this, and in truth he did not annul it—they compel him to fulfill it, or he must clarify before whom he annulled it. And if the permitters permitted it to him—behold, it is permitted. But the beit din shall rebuke the permitters if they permitted it improperly, as I have written.

It is a clear matter that a person cannot give to tzedakah something that he does not have the power to consecrate. And we derive (Bava Metzia 6a): "'When a man consecrates his house to be holy etc.' – just as his house is in his possession, so too everything must be in his possession," see there. And behold, it is certainly so that regarding a thing that is not his at all, a verse is not required. However, this is as they said there: one who stole and the owners have not despaired – both of them cannot consecrate it, this one because it is not his, and this one because it is not in his possession. And even though the object belongs to the victim of the theft and he has not yet despaired. And if it is because it is not under his hand – this does not hinder it, for behold, regarding a deposit that is under the hand of another, one can consecrate it, as will be explained. And why can he not consecrate it? Rather, the reason is that since the thief does not want to return it to him, it is called "not in his possession," and he cannot consecrate it, and for this the verse comes. And also regarding a deposit it is so, as will be explained with the help of Heaven.

This is the wording of our teacher, the Beit Yosef, in section 7: A person cannot consecrate something that is not in his possession. How so? If he had a deposit in the hand of another, and the one who had it denied it—the owner cannot consecrate it. But if he did not deny it—it is in the possession of its owner wherever it is. To what do these words apply? To movable property. But land that one stole and denied, if he can recover it through judges—he may consecrate it, even though he has not yet recovered it, for the land itself is in the possession of its owner. One who robs his fellow and the owners have not despaired—neither of them can consecrate it; this one because it is not his, and this one because it is not in his possession. Thus far his words. And this is from the words of the Rambam in the sixth chapter of Erachin, and it is explained from the sugya in Bava Metzia there. And according to what we have explained, the reason is clear: just as with robbery, even though it is possible to recover it through judges, nevertheless it is not called "in his possession" because the robber does not desire to return it, so too with a deposit of movable property where the bailee denied it. And granted that the depositor can recover it through judges, nevertheless since for the time being he denies it—he is like a robber, and it is not in his possession. But land cannot be stolen, for it stands in its place, and the robber cannot hide it. Therefore, if it is in his power to recover it through judges—it is called being in his possession and he can consecrate it. And the same law applies to the matter of tzedakah in similar cases.

There is reason to doubt regarding the theft of movable property or a deposit and its denial, where he stood in judgment and clarified that it is his, and the judges commanded the thief or the bailee to return it, whether he can consecrate it even when he has not yet returned it to him or not? And it appears that if the thief or the bailee said before the beit din, "I will return it to him" – he can consecrate it. But as long as he has not said so, even though the beit din said to him, "Go out and give it to him," nevertheless, in the end they must remove it from his hand by force – it is not called being in his possession and he cannot consecrate it. (And I have a bit of a proof for this from the Shita Mekubetzet in Bava Metzia there 7, from what he wrote in the name of the Ramach in the heading beginning "And regarding the matter," see there. And examine carefully and you will find it easily.)

The Tur and the Shulchan Aruch wrote in section 8 (Shulchan Aruch Yoreh Deah 258:8): If one has a debt owed by another, and says "it shall be for hekdesh" or "for tzedakah" – it is nothing. But if he said "the debt that I have against so-and-so, when it comes into my hand I shall sanctify it" or "I shall give it to tzedakah" – he is obligated to fulfill his words and to sanctify it and give it when it comes into his hand. And even one who says "the debt that I have in the hand of so-and-so shall be for tzedakah," if he said so in the presence of the debtor and in the presence of the gabbai, or in the presence of the tuvei ha'ir or an important person in the city – the gabbai has acquired it by the law of ma'amad sheloshtan. And behold it is tzedakah, and he cannot retract it, and it is forbidden to change it. Thus far his words. And in section 10 (Shulchan Aruch Yoreh Deah 258:10) he wrote: One who vowed to tzedakah by way of asmakhta, such as "if I do such-and-such a thing I will give such-and-such to tzedakah," and he did it – he is obligated to give. Thus far his words.

The explanation of the matters: That a debt which his fellow owes him, whether a loan with a document or an oral loan, and even if the borrower admits to him and says that he will pay—nevertheless, he cannot sanctify it. And it is not similar to a deposit which is in existence. But a loan is given for expenditure, and it is called "not in his possession." And even though the Mordechai at the end of the fifth chapter of Bava Batra ruled that a loan can be sanctified like a deposit, and our teacher, the Rema, in his book Darkhei Moshe (letter 4) brought it, see there, and so wrote the Shita Mekubetzet in Bava Kamma (Bava Metzia 70a) that the Meiri brought so in the name of "some explainers," see there, nevertheless, we do not hold accordingly. And also the Meiri wrote there that the great poskim do not hold so, see there. And the reason seems to be that since the Torah excluded even a thing that is completely his, if it is not completely in his possession like a theft or a deposit that he denied, even though he can extract it through judges, it is not sanctified in movable property as I have written; and if so, regarding a loan which is given for expenditure, even if it is a loan with a document and he has a lien on properties—nevertheless, in the end, it lacks collection, and it is no better than a theft or a deposit that he denied, which he can extract through judges, and it is not sanctified for the reason that it lacks collection. And here too regarding a loan, it is so. But when he said, "When it comes into my hand I will sanctify it," granted that it is not now sanctified, nevertheless, he is obligated by the law of a vow, and in a vow there is no asmachta. And the Rambam in Arakhin there brought a proof from our father Yaakov, who said, "If God will be with me etc.," and it is written, "where you vowed a vow to Me there." And so too if in the presence of the three of them he handed over the debt to tzedakah—the tzedakah rightly acquires it, for we hold that the presence of the three of them is effective also regarding a debt, as I wrote in Choshen Mishpat siman 126. However, in the presence of the three of them, there must be a gabbai or the city leaders, or another important person who will acquire it on behalf of the poor, for in every presence of the three of them, the recipient must be in the presence of the three of them as is explained there. And therefore it is also forbidden to change it as if he already handed it over to the hand of a gabbai, for it is forbidden to change it as will be explained in siman 259. And one should not ask: that when he said "it shall be sanctified," why is it nothing, let him be obligated at any rate by the law of a vow? For it is not so, behold he did not say "I will sanctify it" but rather "it shall now be sanctified," and now he cannot sanctify it (Shach, subsection 15). And regarding a vow, we do not follow the intent understood from his words, but rather when he vowed with his mouth or at any rate when he resolved in his heart to vow to tzedakah such and such. But not when he said a thing that is not according to the law at all; even though from this it is understood that his will is to vow, nevertheless, in the end, he has not yet vowed.

Our teacher, the Rema, wrote in section 7 (Shulchan Aruch Yoreh Deah 258:7): If one has a collateral in the hand of his fellow, that which is against his loan—he cannot consecrate. And the remainder he can consecrate. And there are those who say that even the remainder he cannot consecrate. One who consecrates a promissory note—it requires writing and delivery just as with a commoner. Thus far his words. And the reason for the "there are those who say" that even the remainder he cannot consecrate, even though the remainder is like a deposit, nevertheless it is not similar, for a deposit he takes from him at any time he wishes. But the remainder of the collateral, behold he will not give it to him until he pays him the debt, and if so, even the remainder is lacking collection. And even though he can extract it through the beit din—it is not effective, as I have written (see Darkhei Moshe, letter 4). And that which he wrote that one who consecrates a promissory note requires writing and delivery just as with a commoner, we explained this in Choshen Mishpat siman 66, section 52, see there. And there we brought the opinion of the Ritva that it does not require writing, and it is sufficient when he says "the poor or the hekdesh shall acquire this note." And he holds that even regarding consecrations in this time we say "his speech to the Most High is like his delivery to a commoner," and that Rav Hai Gaon wrote so explicitly in the book Mekach U'Memkar, gate 56, see there. And we explained there that even according to the majority of poskim who do not hold so, he becomes obligated by reason of a vow, see there. And know that in any place where it is as if he delivered into the hand of the gabbai, such as with writing and delivery or in the presence of the three of them—he can no longer ask a sage for annulment, just as when the money has come into the hand of a gabbai (Shach, subsection 18). And so too with anything where the kinyan does not take effect, such as with a thing that has not yet come into the world, or is not in his possession, or a thing that has no substance, if he vowed all these to tzedakah, even though the tzedakah does not acquire—nevertheless the vow takes effect upon him, and he must fulfill it when the thing comes into the world, or into his possession, or will have substance, and the like (ibid., subsection 16). However, he can ask a sage for annulment.

And behold, since in this matter tzedakah is like hekdesh, for whatever one cannot consecrate as hekdesh, one cannot give to tzedakah; and therefore, if a person sold a field to his fellow and said at the time of the sale, "This field that I am selling to you, when I purchase it back from you it shall be for tzedakah" – the tzedakah acquires it when he purchases it back, because it is in his power to consecrate it now. But if he said this after the sale – it is nothing, for it is not in his power to consecrate it now. And if he said, "This field that I have mortgaged to you, when I redeem it from you it shall fall to tzedakah" – the hekdesh takes effect, for it is in his power to redeem it now, even if he mortgaged it for a long period. However, if he said "from now" – it is not effective, for it is mortgaged to the creditor (Shach, subsection 15, in the name of the Rambam, chapter seven of Arachin, see there). And one who leases a house to his fellow and gave it to tzedakah – the tzedakah has acquired it, and the lease is voided. And this is according to the opinion of the Rambam there. But according to the opinion of the Tosafot in Ketubot (Ketubot 59b), he can only consecrate the excess over the lease, see there.

The Rambam further explained there: One who was selling gourds or eggs and the like, and a buyer came and took one of them and went on his way, if the price of each and every one was fixed—this is as if he had agreed upon a price, and the seller cannot consecrate this gourd, for it is not in his possession. But if the price is not fixed and he consecrated it—it is consecrated, for it is still in his possession, since the one who took it did not take it by way of theft. And so too with anything similar to this. Thus far his words. And it is understood automatically that for the buyer it is the opposite, for that whose price is fixed, if he consecrated it—it is consecrated, and that whose price is not fixed—it is not holy. And it appears that even if he says that it was in his mind to give whatever the seller would say, nevertheless, ultimately without the fixing of a price the sale is not finalized, and if so it is still not in his possession, and he cannot consecrate it. And all of this applies also to tzedakah, for they have one law.

It is a simple matter that one who purchases an object from his fellow and consecrated it or gave it to charity, and afterwards it became known that it was stolen in the hand of the seller and must be returned to the victim of the theft—that this is a consecration in error and is not consecrated, even if the purchaser did not know it was stolen. Furthermore, even if the thief went back and purchased it from the victim of the theft, as we maintain in Choshen Mishpat siman 374 that the sale is upheld in the hand of the purchaser, for we say: What did the first sell to the second? Every right that shall come into his hand, for it is pleasing to him that he should stand by his word, see there. Nevertheless, the consecration that he consecrated previously is nothing, for he consecrated a thing that was not his. And that which the sale is upheld in his hand, this is specifically after the thief purchased it from the victim of the theft and not before, as has been explained there.

And know that regarding what has been explained, that in tzedakah there is no asmakhta, from the wording of our teacher, the Beit Yosef, in section 10 (Shulchan Aruch Yoreh Deah 258:10) which we cited in section 27—there is no asmakhta in any case. But in his great book he cited in the name of the Rivash three distinctions in this, and this is his wording: If he made a condition regarding a voluntary matter, such as if he said "If I do not go to such-and-such a place I will sit in a fast" or "I will give such-and-such to tzedakah"—it is an asmakhta, since the going was for a voluntary matter. But if he made a condition regarding a mitzvah: "If I do not perform such-and-such a mitzvah I will give such to tzedakah" or "I will sit in a fast"—it is effective, and it is not an asmakhta. And so too if he vowed in a time of distress—it is not an asmakhta. See there. And from the fact that he wrote without qualification here, it implies that in any case it is not an asmakhta, even for a voluntary matter. And so it implies from his words in Choshen Mishpat siman 207 (Shulchan Aruch Choshen Mishpat 207). And so it implies from the Rambam at the end of the sixth chapter of Erachin, who brought a proof from Yaakov Avinu, see there. And he did not distinguish to say that it is specifically in a time of distress like Yaakov Avinu. And regarding the Rivash it is not difficult, for there are some poskim who hold that even in tzedakah there is an asmakhta (Beit Yosef in the name of the Hagahot Ashri, Perek Zeh Boreir). And the Rivash distinguishes in this with details, but we do not hold accordingly. However, it is a great wonder regarding our teacher, the Beit Yosef, that in Orach Chaim at the end of siman 562 (Shulchan Aruch Orach Chaim 562) regarding a fast he cited this opinion, and this is his wording there: There is one who says that one who vowed and said "If I do not go to such-and-such a place I will sit in a fast," since that which he conditioned is voluntary—it is an asmakhta. Thus far his words, and they have already wondered about him regarding this (Nekudot HaKesef and Magen Avraham there, subsection 16). And in my humble opinion it appears that our teacher, the Beit Yosef, holds that even though the Rivash equated a fast to tzedakah, nevertheless they are not similar, for tzedakah is certainly a mitzvah. Therefore, even if the condition was for a voluntary matter, it is nevertheless a mitzvah, whereas regarding the fast itself there is a dispute in the Shas whether it is a mitzvah or not. And he ruled there in siman 571 (Shulchan Aruch Orach Chaim 571) that they are like sinners when they fast, see there. Therefore, since it is not a clear mitzvah, we require at the very least that the condition be a matter of mitzvah. This is not the case with tzedakah, where he did not concern himself with this opinion at all.

One who strikes his fellow or insults him, in a manner where he is liable for a fine according to the enactment of the city and the fine is to be given to him according to the enactment, and he said before the gabbai or before the city elders or before an important person in the city, "I do not desire the fine, rather let it be for tzedakah"; and afterwards the striker or the insulter appeased him and he forgave him—his forgiveness is nothing, and the poor have acquired the fine. For since he said this before the gabbai, the poor have acquired it, as the gabbai is like their hand, and he no longer has the power to forgive. Behold, our teacher, the Beit Yosef, wrote this law in section 9 (Shulchan Aruch Yoreh Deah 258:9), and its source is from a responsum of the Rosh (Klal 13). And he brought proof from an incident in Bava Kamma (Bava Kamma 36b) in such a case where he wanted to retract, and Rava Yosef said: "We are the hand of the poor." According to this, it must be understood that in this case it is necessary to say like the Nimukei Yosef there, that they acquired it by way of ma'amad sheloshtan, see there. And according to this, it must be said that the striker was also there, and this was not explained here; or like the explanation of the Shita Mekubetzet there, that the dinar had already come into the hand of Rav Yosef, see there. And this also implies explicitly that here he had not yet handed over the fine to the gabbai. If so, by what did the gabbai acquire it? And if it is because of "with your mouth"—this is tzedakah, and it is like a neder, if so, he does not need to say it before the gabbai? Rather, certainly a neder is not applicable in this, unless he said "I will give it to tzedakah," as he wrote in section 28 (Shulchan Aruch Yoreh Deah 258:28). And so wrote the Tosafot and the Rosh there, see there. And according to the Tosafot and the Rosh, it must be said there also by way of ma'amad sheloshtan, as the Maharam Lublin wrote there, see there. And if so, why did they not explain this here? Therefore, it must be said of necessity either that here there was also ma'amad sheloshtan and they did not feel the need to explain this, or that he holds that since this is from the enactment of the city, it does not require the presence of the striker, and everyone stands in his place. And it requires further study.

Our teacher, the Beit Yosef, wrote in section 11: A man and a woman who accepted upon themselves a prohibition to divorce, and established fines for this purpose for tzedakah, and afterward they were reconciled not to divorce, there is one who says they are exempt from the fines. And the same law applies in other similar matters. Thus far his words, and this is from the Terumat HaDeshen (siman 311). And he brought there another case regarding Reuven and Shimon who accepted upon themselves to exchange their properties, and if they do not fulfill it they shall give such and such to tzedakah, and afterward they agreed not to exchange, that they are exempt from the fines. And he explained the reason because they only established the fines so that they would not obstruct one another, and since neither one is suing the other, what does the community have against them, for the matters have been fulfilled. And he brings proof from the fifth chapter of Nedarim: A konam that you benefit from me if you do not give my son a kor of wheat, etc. – he can release his vow without a sage, and say "I am as if I have received it." And here too they can say "we are as if we have fulfilled it," see there. For the fine is specifically if one transgresses against the will of the other. But when both wills are equal – there is no fine here (and the words of the Levush here are perplexing as the Shach wrote in subsection 22). And also a communal enactment is not here.

One who promises to give a gift to his fellow—it is merely words, and he may retract. However, one who says to a poor person, "I will give you a gift"—it is like a vow to tzedakah, and it is forbidden to retract even if he used the language of "gift." And also "a gift on condition that it be returned," even though in general it is a gift, and one who swears to give a gift to his fellow fulfills his oath with a gift on condition that it be returned as I have written in siman 238, yet regarding a poor person it is not effective. And even without an oath he cannot give on condition that it be returned, since the primary intention is for the sake of tzedakah, what benefit is there if it is returned to him (Shach, subsection 25)?

Our teachers, the authors of the Shulchan Aruch, wrote in section 13 (Shulchan Aruch Yoreh Deah 258:13): One who says, "I am giving such-and-such an object to tzedakah for such-and-such an amount," and it is worth more—he cannot retract. For regarding any statement that contains a benefit for tzedakah, we say: one's statement to the Most High is like his delivery to a commoner. However, if it was not worth more at that time, and afterwards it increased in price—he can retract, since he did not perform meshikhah and did not give the money. Thus far his words. The explanation of the matters: For we learned in a Mishnah in Kiddushin (Kiddushin 28b), the domain of the Most High is acquired with money. That is to say: that the acquisition of Hekdesh is through money and not through meshikhah, as it is written: "And he shall give the money and it shall be established for him"—one's statement to the Most High is like his delivery to a commoner. And it is difficult: for since through a mere statement Hekdesh acquires it, if so, why is an acquisition of money necessary? And it must be said that "statement to the Most High is like delivery to a commoner" only applies in a case where one intends to yield to Hekdesh, such as a gift or a sale for less than its value. But in a sale at the value of the purchase—"statement like delivery" does not apply, and an acquisition is required (Tosafot ibid. 29a s.v. mashkhu). And with this, the words of our teacher, the Beit Yosef, are explained. (And behold, in the first resolution, the Tosafot there distinguished between a thing whose appraisal is known and a thing whose appraisal is not known, see there. However, the Beit Yosef took the second resolution as the primary one, because in Bava Batra 133b s.v. velo they wrote only the second resolution, see there.)

But it must be understood: what is the connection between hekdesh and tzedakah? For it has already been explained that the law of tzedakah is like that of a commoner, and that which is said, "one's speech to the Most High is as delivery to a commoner," applies only to absolute hekdesh and not to tzedakah, as I wrote in section 18. And this is the opinion of most of the poskim. If so, what is this that they said, that any speech that contains a profit for tzedakah, we say regarding it "one's speech to the Most High etc."? And it appears to me that this is the explanation: when we examine why, when one intends to waive in favor of hekdesh, we say regarding it "one's speech etc.," but when he does not intend to waive, we do not say this, as I wrote in the previous section. And this requires a reason, but the matter is thus: for in a sale, "one's speech etc." truly does not apply at all, for his intention is to sell through a kinyan. And this is what we learned: the domain of the Most High is acquired with money. Rather, when he intends to waive in favor of hekdesh, we say regarding it "one's speech etc." by reason of a neder, for he made a neder to waive in favor of hekdesh. And although this is not an absolute neder, nevertheless through his speech it becomes like a neder. (This I learned from Tosafot, Bava Batra 133b, starting with the words "Velo," see there. And be precise and you will find it easy.) And since it is by reason of a neder, if so, it is also thus regarding tzedakah. And that which they wrote the phrasing of "one's speech to the Most High" — it is merely a common phrasing, because according to the words of the Tosafot, the phrasing is thus even in the Mishnah, and the intent is regarding a neder, and as I wrote in section 18 regarding the wording of the Tur, see there.

Our teacher, the Rema, wrote: If one thought in his heart to give a certain thing to tzedakah—he is obligated to fulfill his thought. And he does not require speech, but rather if he spoke—they compel him to fulfill it (and without speech it is not known to us). And some say that if he did not express it with his mouth, it is nothing. And the primary view is like the first opinion. Thus far his words. And the reason for the first opinion appears to me: for behold, regarding sacrifices it is written, "all who were of a generous heart brought burnt offerings" (II Chronicles 29:31), and regarding the donation for the work of the Mishkan it is written, "all who were of a generous heart" (Vayakhel). And from this they derived in Shevuot (Shevuot 26b) that one becomes obligated through the conclusion in his heart alone. And we say there that we do not learn from this elsewhere, because it is two verses that come as one, and they do not teach others; see there. Therefore, the second opinion holds that we do not learn tzedakah from them, and the first opinion holds that the contribution for the work of the Mishkan is indeed tzedakah, and consequently, the law is the same for tzedakah as well. However, even according to the first opinion, it is not called "concluding in his heart" through a mere thought, unless he truly concluded in his heart with absolute resolve, "such and such I will give to tzedakah." Nevertheless, since it is a legal doubt—we do not extract money in a case of doubt, but rather the one who vowed should be concerned for this. And if he retracts—he should consult a sage. And we have already explained in Choshen Mishpat siman 212 section 10 that even according to our teacher, the Rema, this only applies to tzedakah, and not to other matters of mitzvah such as a fast and the like, for in this everyone agrees that he must specifically express it with his lips; see there. And according to what I have written, the reason is simple (and even according to the "some say," a God-fearing person should fulfill it, and "speak truth in his heart").