Siman 259

It is stated in Arachin (Arachin 6a): One who says, "This sela is for tzedakah" or "A sela is upon me for tzedakah" – it is permitted to change it, whether for himself or for another. Rashi explained: it is permitted to change it for his needs, and after some time he shall pay. And so too it is permitted to lend it to another so that he may use it for his needs, and after some time to pay. The Tur and the Shulchan Aruch also wrote according to the explanation of Rashi. But the Rambam in the eighth chapter, law 4, wrote: Whether one says "This sela is tzedakah" or one says "Behold, a sela is upon me for tzedakah" and he set it aside, if he desired to change it for another – it is permitted etc. Thus far his words. And it appears that he explains "to change it" according to its plain meaning, to exchange this sela that he set aside for another sela. And certainly it is not dealing with a case where the sela of tzedakah is worth more, for if so, how would he be permitted to cause a loss to tzedakah? Rather, it is not worth more, only that he needs this one for some reason. And according to this, that which they said "whether for himself or for another" does not sit well (Beit Yosef). However, one could say that he explains that both he can exchange it for another, and another can exchange it with the will of the giver. And the Rambam and the Tur omitted this because there is no novelty in it, for what is the difference to me if it is he or if it is another? And regarding the law, it appears also that they do not disagree, and the Rambam also admits that he is permitted to borrow it and pay later, and Rashi also admits that he is permitted to change it for another. For it is all one reasoning, that before it comes into the hand of the gabbai, the sanctity of tzedakah does not rest specifically upon this sela, but rather that he is obligated to give a sela to tzedakah.

To what do these words apply? Before it has come into the hand of the gabbai. But after the sela has come into the hand of the gabbai—it is forbidden to change it, neither the donor nor the gabbai, and certainly not another person. And this is not due to the reason of sanctity, for tzedakah is not hekdesh, but rather because the poor have already acquired it, as the hand of the gabbai is like their hand, and it is obvious that one has no permission to use the money of others without the permission of the owners. And now, who will give him permission? And even the gabbai, whose hand is like their hand, nevertheless, who is to say that they give him permission for this, to lend it or to exchange it? Therefore, if the matter is clear that there is a benefit to the poor in the delaying of the money in the hand of the gabbai, so that by means of this he will have the ability to perform further tzedakah—the gabbai is permitted to borrow them or to lend them and to pay back afterwards, for we are witnesses that it is pleasing to them, and his hand is like their hand. Therefore, even for a matter of mitzvah, the gabbai alone may change it. Thus ruled the Rosh and the Tur and the Tosafot, and they wrote that this is the primary view (Shach, subsection 1, in the name of the Maharik, root 5). And in a place where the custom is that the gabbai lends gemilut chasadim from these funds—one follows the custom.

And so too if one consecrated vessels, and the unspecified term "hekdesh" in this time is for the poor, as I wrote at the beginning of siman 258—the gabbai may sell them before three experts in appraisal, and give their proceeds to tzedakah. And it seems to me that if the giver says that his intention was for the synagogue, or for the beit midrash, or for another type of tzedakah where use of the vessels is relevant—he is believed, and they are not to be sold. However, in an unspecified case when we do not know his intention—presumably it is for the poor. And what use do the poor have for the vessels? Therefore they are sold. And so too if he vowed to a poor person the garment he is currently wearing, and his intention was to make himself a new garment, and due to some cause his garments were delayed—he may appraise it and give the value of its worth to the poor person (Ba'er Heitev in the name of Shai). And there is one who hesitates regarding this, and holds that he must give specifically the garment he vowed (Pitchei Teshuvah in the name of Be'er Esek). And it is a simple matter that with the consent of the poor person it is certainly permitted. (And it seems to me that this dispute depends on the dispute of Rabban Shimon ben Gamliel and the Sages in Gittin 74b, see there. And there we maintain that he must give specifically the garment. However, there even her forgiveness does not avail, see there. And in my humble opinion it seems that if the reason he vowed the garment to the poor person was because the poor person needed a garment—he cannot give money except with the consent of the poor person. However, if his intention was for the sake of general tzedakah—he may give money in its stead.)

One may not engage in business with tzedakah that is standing to be distributed to the poor, except for exchanging silver for silver, and similarly other coins where there is no concern in this. However, to engage in business with them is forbidden, lest the poor come and they will not have coins then to distribute. But tzedakah that is not standing to be distributed, where only the principal shall remain and they will consume the fruits—it is permitted. And on the contrary, they must see to it that there will be fruits from this. And such is the custom; so ruled our teacher, the Rema, in section 1 (Shulchan Aruch Yoreh Deah 259:1), see there. And it appears that when they engage in business with them, they must see to it that it be close to profit, even a small gain, and far from loss, just as our sages, of blessed memory, said regarding the money of orphans (Bava Metzia 70a).

Our teachers, the authors of the Tosafot, wrote in Arachin ibid., that that which they said, that once it comes into the hand of the gabbai it is forbidden to change it—this refers to the gabbai. However, the townspeople are permitted to change it, as we say that they are permitted to make a tamchui from a kuppah, and a kuppah from a tamchui, as I wrote in siman 256, and even for optional needs. And some say specifically for a matter of a mitzvah, as is explained there. (And it is a wonder that in the Tosafot there it is written specifically for a matter of a mitzvah, and afterwards in the heading beginning with "Ad" they wrote even not for a matter of a mitzvah, see there. And they are two opinions.) And the Tur and the Shulchan Aruch did not bring this, and it appears that they hold that specifically regarding constant tzedakah like kuppah and tamchui can they change it, for they give with their [the townspeople's] consent. But regarding an individual who says "this sela is for tzedakah"—he does not give with their consent, and his will is specifically to distribute it to the poor, and they are not permitted to change it. (See the Be'er HaGolah in the name of Rabbeinu Yerucham, who wrote both things in the name of Tosafot. And before us this answer is not found in Tosafot, see there. And be precise and you will find it easy.) (And that which the Rema wrote there regarding an individual's donation—this is when he gave it to the kuppah.)

And know that there is one who explained regarding that which they said, that as long as it has not come into the hand of the gabbai it is permitted to change it, that the intention is to change it for another mitzvah. For example, if he vowed for tzedakah for the poor—he can perform another mitzvah with this, so long as it has not come into the hand of the gabbai. And his words were rejected, for certainly to change it for another mitzvah is surely forbidden, and "to change it" only refers to borrowing it, as I have written (Tosafot ibid. starting with "Ad," see there). And it appears explicitly that even before he set aside the sela it is forbidden to change it for another mitzvah, for since he vowed for this tzedakah—it is forbidden to change it for another tzedakah. And it is not similar to the tzedakah of the synagogue, which is permitted to change as will be explained, for there they give with the understanding of the gabbaim, which is not the case with ordinary tzedakah for the poor. And behold we learned in Shekalim: the surplus of the poor—is for the poor; the surplus of a poor person—is for that poor person. And even though there it deals with when they have collected, nevertheless, regarding the essence of what he vowed to this poor person or to these poor people—it is forbidden for him to change even to other poor people, and all the more so to other tzedakah.

The Tur and the Shulchan Aruch in section 2 (Shulchan Aruch Yoreh Deah 259:2) wrote: Charity funds that were donated for the needs of a beit knesset or for the needs of a cemetery—the townspeople may change them for the needs of a beit midrash or talmud torah, even if the owners object. But not from talmud torah for the needs of a beit knesset. Thus far his words. The explanation of the matters: Even though it is forbidden to change against the will of the owners—this is from one matter to a completely different matter. For example, if one donated for the poor and they wish to change it for a beit knesset or for talmud torah, for even though it is possible that this is a greater mitzvah—nevertheless, it is forbidden to change against the will of the owners. But when in the essence of the matter there is no change, for example, if one donated for the needs of a beit knesset or for a cemetery, and they change it for the needs of a beit midrash—we see if this holiness is greater than the holiness for which he donated, as we hold that the holiness of a beit midrash is greater than the holiness of a beit knesset. And certainly talmud torah is greater than them all—they may change it even if he stands and screams, for we elevate it in holiness. But to lower it—is forbidden. And it appears to me that this is when the donor himself does not pray in the beit knesset to which he donated, or that he also prays in the beit midrash. But if he prays only in the beit knesset—it is forbidden to change from there even to something higher than it, for we hold that regarding one who says "give to the beit knesset"—they give to the beit knesset that he is accustomed to, as I wrote in siman 258. And certainly when he specified this beit knesset and he prays there. Rather, here it deals with as I have written. And see what I wrote in section 12. (See what I wrote in Orach Chaim siman 153, section 38.)

Our teacher, the Rema, wrote that this which is forbidden to change from Talmud Torah to a beit knesset is specifically where there is a concern that they will not have sufficient provision for Talmud Torah. However, in a place where the townspeople provide for Talmud Torah, and if they spend these funds for the needs of a beit knesset they will give other funds for Talmud Torah when they are needed—it is permitted. And even if it is in a place where it is forbidden to change, if he does not need the thing that was vowed (the wording is difficult), such as if he consecrated land to build a beit midrash upon it and they cannot build immediately—the donor cannot retract, but rather it shall remain so until they build upon it (unless he explicitly stipulated on condition that they build it immediately). And all this is in a place where there is no known custom in the town. But in a place where they are accustomed that the gabbai or the townspeople change it for whatever they wish, or even in a place where they are accustomed that a person places some object in the beit knesset, such as a Sefer Torah or silver vessels and the like, and when he wishes he takes it back, and when he loses his wealth he sells it to others—one follows the custom. For anyone who consecrates, he consecrates with the custom in mind. And the heart of the beit din stipulates regarding this, provided that it is a fixed custom. Nevertheless, if the donor explicitly stipulated that they shall not change his consecration, and there shall be no power in this—it is obvious that it is forbidden to change it. Thus far his words. And all his words are clear, and do not require explanation.

It is clear from this that in a place where there is no custom, one who gives a sefer Torah or silver vessels to a beit knesset or a beit midrash cannot take them from there. And even if he claims a definite claim that he did not give them to the public, but rather placed them there and whenever he wishes he may take them—he is not believed unless he brought witnesses that he stipulated thus at the time he gave them (Shach, subsection 6, in the name of the Rashal and the Bach). However, some say that this is certainly so regarding silver vessels, since he left them constantly in the beit knesset and did not take them to his home—one may infer from this that he handed them over to the beit knesset. But regarding a sefer Torah, which must of necessity be in the beit knesset in order to read from it, and to transport it afterwards to his home is forbidden, if so, who can remove it from his possession or from the possession of his father? And it is called by his name and his father's name, and he claims that he did not give it absolutely or his father did not give it absolutely, and from the fact that it is always in the beit knesset there is no proof; if so, we do not have the power to remove the sefer Torah from the possession of its owners (ibid. in the name of Mahari Kohen, see there). And it appears to me that according to the custom of our lands, one who gives a sefer Torah to a beit knesset or a beit midrash gives it absolutely, unless he stipulated explicitly at the time of the giving that he is not giving it absolutely. (And it is a difficult thing to bring testimony in this, for those who pray there are interested parties. And the beit din must act according to their understanding in this.)

And it is a simple matter that in a place where the donor is able to take his sefer Torah from the beit knesset—his creditor may collect from it, as is explained in Choshen Mishpat siman 97, and several great authorities ruled so in practice (Shach subsection 7). And regarding that which our teacher, the Rema, wrote, that in a place where there is a custom that one who consecrates a thing may return and take it, and when he loses his wealth he may sell it—we follow the custom, for everyone who consecrates does so with the intent of the custom. There are those who disagree with this and incline toward prohibition, and they wrote this for the reason that a custom does not nullify a halacha unless it is a fixed custom established by the sages of the place, and not by the laypeople (ibid. subsection 8 in the name of the Maharik). And I do not understand, for indeed our teacher, the Rema, spoke of a fixed custom. And regarding the essence of the matter, it appears to me that this is not called a custom nullifying a halacha, for the Mordechai wrote this at the beginning of the chapter "HaPoalim" regarding the work of laborers when they deviate from Torah law—it must be that the custom was established specifically by the sages of the place, see there. But regarding donations, there is no Torah law, and the Torah gave permission to vow and donate each person according to his will, and what relevance is there here to a custom nullifying a halacha? Therefore, even if the custom was established by laypeople, if it is only a fixed custom—it is a custom, and they consecrate with the intent of the custom (so it appears in my humble opinion).

The Rambam wrote in the eighth chapter (the Rambam, Laws of Gifts to the Poor 8): One who donated a candelabra or a lamp to the synagogue—it is forbidden to change its use. But if it is for a mitzvah matter—it is permitted to change its use, even if the name of its owner has not been forgotten from it, but rather they say, "This is the candelabra or lamp of so-and-so." And if the name of the owners has been forgotten from it—it is permitted to change its use even for a mundane matter. In what case are these words said? When the donor was an Israelite. But if he was an idolater—it is forbidden to change its use even for a mitzvah matter until the name of its owner has been forgotten from it, lest the idolater say, "I consecrated an object to the synagogue of the Jews and they sold it for themselves." Thus far his words. That is to say: there is a desecration of the Name in the matter. But an Israelite, we do not listen to him even when he cries out, for there is no desecration of the Name in this (Shach, subsection 12). And on the contrary, when he cries out, he desecrates the Name, for the Israelite must know that we do not take it for ourselves, and if it seems proper to us to change it for another mitzvah matter—such is the law of the Torah.

And behold, according to the words of the Rambam, so wrote the Tur and the Shulchan Aruch in section 3 (Shulchan Aruch Yoreh Deah 259:3). And it is an explicit Gemara in Arachin there. However, that which they wrote, that when it has been forgotten it is permitted to change even for a mundane matter—this is not explained in the Gemara there. And the Tosafot there (heading starting with "Ilima") wrote explicitly to the contrary, that for a mundane matter it is forbidden even when it has been forgotten; see there. And I wonder that they did not bring their opinion at all. And it seems that it was simple to them in this like the Rambam, for since by the law the people of the city are permitted to change even for a mundane matter, as I wrote in siman 256, if so, when it has been forgotten why should it be forbidden? And it is possible the Tosafot hold even there that for a mundane matter it is forbidden, and we do not hold accordingly, as I wrote there. Therefore they did not bring this opinion here (also the Shach in subsection 13 decided so as the law). And specifically the people of the city, but the gabbai himself cannot change (ibid. subsection 9). And when they change for the purpose of a mitzvah—they can change even to a mitzvah smaller than this mitzvah, since in any event it is for the purpose of a mitzvah. And the first mitzvah is also not nullified, for if to nullify the first—certainly there is no permission except for a mitzvah greater than it (ibid. subsection 11). And therefore it was explained in section 7 that they can change from the charities of the beit knesset to the beit midrash and not the reverse. And this is what our teacher, the Rema, wrote there, that when the people of the city provide for Talmud Torah—they can change even from Talmud Torah to a beit knesset, and as I wrote in section 8. And everything follows this foundation. (And this is the difference between this law of an Israelite who donated a menorah, where it is permitted to change even to one lighter than it, and the law of charities that were donated for the needs of the beit knesset etc., where we require one more stringent than it. And this is the approach of the Shach there in the name of the Maharik; see there. Examine and you will find it easy.)

And there is one who says that therefore, regarding the law of charities that were volunteered for the needs of the beit knesset, we require a change to a more stringent sanctity. But here, they can change it when the name of the owners has been forgotten even for a mundane matter, because there it is as if it has not been forgotten (Taz, subsection 5). And behold, this is certainly true, for they volunteered money specifically for this, and how would "forgotten" be relevant in that case? But from this opinion, it implies that he holds that when it has not been forgotten, when they change it for a mitzvah matter, they require elevation to a more stringent one, and it is not so according to what I wrote in the previous section. And there is one who distinguishes: that there, regarding charities that were volunteered for the needs of the beit knesset, they are tashmishei kedushah, and regarding this we say "one elevates in sanctity and does not lower." But regarding a menorah for the beit knesset, it is only tashmishei mitzvah, for they were only made to provide light for the worshipers from the siddurim, and this is nothing but a tashmish mitzvah for the person himself (ibid. in the Shach in the name of the Bach). And regarding tashmishei mitzvah, one does not need elevation, for tashmishei mitzvah are discarded. And our teacher, the Rema, wrote that if the name of the donor is engraved on the menorah that he gave—it is always considered that the name of its owner has not been forgotten from it. And this is from the Yerushalmi in Megillah, chapter "Bnei HaIr" (halacha 2). However, it implies there that this is regarding an idolater, see there. (For it brings a proof from Antoninus. And so wrote the Pnei Moshe there in the Mareh HaPanim. However, it is not an absolute proof, see there. And examine closely and you will find it easy.)

An idolater who donated a lamp or another donation to a beit din—we accept it from him. And it is not similar to tzedakah in siman 254, as I have written there. However, it is necessary that he say, "I have set it aside according to the intent of Israel," meaning that they should use it in the beit knesset just as an Israelite donates. But if he did not say so—it requires genizah, for we fear perhaps his intent was for the stars; or even if his intent was for Heaven—perhaps his intent was for a sacrifice (see Rashi, Arachin 6a). And it appears to me that nowadays this is not applicable, for their intent is for Heaven, and not for the sake of a sacrifice but rather as a donation to the beit knesset. And such is the custom.

Our teacher, the Beit Yosef, wrote in section 8 (Shulchan Aruch Yoreh Deah 259:8): One who has money in his possession and is in doubt if it belongs to tzedakah is obligated to give it to tzedakah. Thus far his words. For even though in every case of monetary doubt we do not extract from the one in possession, nevertheless tzedakah is different, as it is a double doubt: the prohibition of "with your mouth—this is tzedakah," and doubt regarding nedarim is resolved stringently. And there are some among the poskim who disagree on this, and they hold that even regarding tzedakah, monetary doubt is resolved leniently, and we have already brought this at the beginning of siman 258, see there. However, our teachers, the authors of the Shulchan Aruch, decided thus as the halachah. And in truth, how is this different from a doubtful neder? And therefore our teacher, the Rema, wrote, and this is his wording: But one who consecrated something with language that is doubtful, and died such that his intention cannot be known, the heirs are called the ones in possession, and the hekdesh that comes to extract from them—the burden of proof is upon it. And as long as it does not bring proof, the property remains in the possession of the heirs. Thus far his words. And his words are clear in their reasoning, for regarding heirs there is no neder. And consequently, for them it is like every monetary doubt, that it remains in the possession of the owners.

And many have raised an objection against our teacher, the Beit Yosef, from what he wrote in Choshen Mishpat siman 250 regarding a shekhiv mera who consecrated his property, that if he recovered he may retract, whereas in the Gemara (Bava Batra 148b) it remains in a state of teiku; behold, he himself ruled even in a case of doubt regarding hekdesh and tzedakah leniently (see Taz subsection 8, and Shach subsection 14, and the Gra subsection 15). And according to what I have written, it is not a difficulty: for regarding a shekhiv mera, it is not categorized as a neder but merely as a testament, for the law of a commoner and the law of hekdesh are equal in this regard, that it is acquired through mere speech, and it is like any doubt regarding monetary matters. And even those who are stringent there are stringent for a different reason, and we explained it there in section 30, see there. But a healthy person who vows to tzedakah, it is a complete neder, and a doubt is resolved stringently. And it appears to me that the primary ruling is according to the words of our teachers, the authors of the Shulchan Aruch. And it is a simple matter that when there is a doubt, and the litigant says that such was his intention, that he is believed in every case. (And all that they have contested are not valid contestations. Examine closely and you will find it easy.)

Our teacher, the Rema, wrote in section 6: One who found a pouch full of coins in his chest, and "tzedakah" is written upon it – we rely on the writing, and they are indeed tzedakah. Thus far his words. And there are those who challenged this from what he wrote in Choshen Mishpat siman 81, that in the case of one who found among his documents a deed in the name of another, we say he did so in order not to appear wealthy, and here too let us say he said so in order not to appear wealthy. And I wonder at this, for it is an explicit Mishnah in the fourth chapter of Maaser Sheni: that the sages are concerned for the writing, and Rabbi Yose disagrees, and the halacha is like the sages as the Rambam and the Bartenura wrote there, see there. And perforce one must distinguish, for in Choshen Mishpat there where it is writing in the name of a commoner – we rightly say "in order not to appear wealthy," but not when the writing is in the name of a sacred matter. And I saw those who distinguish other distinctions, and there is no need for this, and the matter is simple as I have written. (And see Pitchei Teshuvah subsection 11, who cited in the name of great authorities, and there is no need for this. And I have not descended to the depth of the opinion of the Gra in subsection 16, who challenged the Rema from Rabbi Yose, see there and it requires great study. And be precise and you will find it easy.)

If one said to his sons, "These funds are for tzedakah," if it appears to them that he did this as one delivering his words in the language of a will—his words stand. But if he said it to them as a mere statement, it is possible that his intention was so they would not take anything, or so they would not consider him wealthy, and there is nothing to his words. This law has already been explained in Choshen Mishpat at the end of siman 255, see there. And it is not similar to writing, where it was explained that we rely upon it, for an action is different. Furthermore, he wrote it not in their presence. Similarly, if an object belonging to his father was hidden in some place and he did not know the place, and a dream-visitor came and said to him, "There the funds your father hid are found, and they belong to so-and-so" or "they are for tzedakah"—the sages said in Sanhedrin (Sanhedrin 30a) that the words of dreams neither raise nor lower. The reasoning for the matter was also explained there, see there. But if a man came and told him so, we see if this man had a migo, for he could have taken these funds and delivered them to so-and-so or to tzedakah—he is believed with a migo. And if not—he is not believed. It was also explained there, see there, if one used a single chest for tzedakah funds or other consecrated funds along with mundane funds one after the other, and afterwards found funds—we follow the last, meaning those funds that were used last, for presumably they belong to those (Bava Metzia 26a). And if he used both of them at once—we follow the majority. And if he found them in a hole, where it can be said that they were there for a long time and they did not see them, even if they were used one after the other—we follow the majority (ibid.). And one must not impose taxes or arnona on tzedakah funds, for they are no worse than Talmidei Chachamim upon whom taxes are not imposed, as I wrote in siman 243. And all the more so regarding the mitzvah itself. And there are many more details regarding matters of tzedakah in which questions may arise, and it is impossible to detail everything. However, from all that we have explained, all the questions will be solved with the help of Heaven.