From the Daf – You Got Your Receipt – What Next?

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    by Chaim Weber

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    When many people give money to tzedakah organizations, their first reaction is “Can I have a receipt?”

    But the organization may have a different question – how should we treat this money? Specifically, how does halacha view money that was given to tzedakah but has yet to be distributed? Are the funds considered like mammon hekdesh (consecrated property) or like ordinary property.

    There are major ramifications to this question, including the following:

    • Hekdesh is allowed to lend money with interest. Can the organization similarly use tzedakah funds to lend with interest?
    • Hekdesh is not subject to ona’ah (the prohibition against overcharging in a sale and the subsequent obligation of the seller to return the excess overcharge). If tzedakah funds are involved in an unfairly priced transaction, is there the violation of ona’ah (and the subsequent obligation to return the excess overcharge to the buyer)?

    A starting point for this discussion emanates from last week’s Parsha.

    As enumerated in last week’s Parsha, the Torah lists 4 types of watchmen (shomrim) with varied levels of responsibility for items in their care.

    The shomer with the most basic level of responsibility is a shomer chinam – an unpaid watchman. An unpaid watchman is only responsible for damages that occur due to negligence.

    The Gemara in Bava Kamma (93a) tells the story of a gabbai tzedakah who was negligent, causing tzedakah funds to be stolen. In this case, R’ Yosef ruled that the gabbai tzedakah is exempt.

    Why? Wasn’t he negligent?

    R’ Yosef explained that the Torah uses the word “lishmor – to watch” when describing the case of a watchman. This indicates that a shomer is only liable when he received the item in order to watch it. However, if he received funds in order to distribute them to the poor, he’s not liable.

    The Rosh (Teshuvos 13:8) quotes an interesting question from his rebbi, the Maharam of Rothenburg.

    Throughout the halachos of damages, the Gemara learns that when the Torah uses the word “rei’eihu- fellow,” it comes to exclude consecrated property (hekdesh).

    For example, if an ordinary ox damages an ox owned by hekdesh, the owner will not be liable because of the exclusion of “rei’eihu.” (Although R’ Shimon Ben Menasya disagrees, we rule like the Rabanan.)

    In the section related to shomrim, the Torah uses the word “rei’eihu.”

    If so, why is the verse of “lishmor”  needed to exclude money held for tzedakah? It’s already excluded from “rei’eihu!”

    The Rosh concludes that we see from here that money held for tzedakah doesn’t have the halachic status of consecrated property. It’s considered ordinary property – that’s why a special verse is needed to exclude a shomer from liability.

    Based on this, the Rosh rules that money held for tzedakah (or for the support of Torah) cannot be lent out with interest, unlike hekdesh. The Rosh further adds that even without the proof, this conclusion should be obvious – tzedakah funds of course don’t have the status of hekdesh!

    The Or Zarua disagrees.

    The Or Zarua (Hilchos Tzedakah 1:30) holds that money held for tzedakah is considered like hekdesh. Therefore, tzedakah funds can be lent out with interest. The Or Zarua brings support for this from a Yerushalmi (Moed Katan 2:3 and Sanhedrin 8:5) that allows one to borrow with interest for the purpose of a mitzvah.

    Similarly, the Beis Yosef (Choshen Mishpat 227:41) quotes the opinion of R’ Hai Gaon that money held for tzedakah is not subject to ona’ah, though he quotes authorities that disagree.

    How Does the Or Zarua Answer the Rosh’s Proof?

    How would the Or Zarua answer the Rosh’s proof from the Gemara in Bava Kamma? If tzedakah funds are treated like hekdesh, why is the verse of “lishmor” needed to exclude a shomer from liability?

    The Mordechai (Bava Metzia 287) answers that the Gemara in Bava Kamma dealt with a case where the tzedakah funds were earmarked for specific members of the community. It’s therefore deemed as if the recipients already received the money. Once the intended recipients of tzedakah receive their charity, the money is theirs and is no longer like hekdesh.

    What About Interest that is Only Rabbinically Prohibited?

    The debate between the Rosh and the Or Zarua is focused on interest that is prohibited on a Torah level (ribbis ketzutzah).

    For interest that’s only prohibited on a Rabbinic level, there may be a separate leniency based on a Gemara in Bava Metzia 70a. (See Shulchan Aruch Yoreh Deah 160:18 and the commentaries there where this is discussed at length.)

    But Wait! Can Tzedakah Money be Invested At All?

    The Or Zarua asks on his own ruling from a separate Gemara.

    The Gemara in Kesubos (106b) says that tzedakah funds cannot be used for business, as the money may get tied up and be unavailable to use for the needy.

    The Or Zarua answers that this Gemara deals specifically with tzedakah funds that are intended to be immediately disbursed. However, tzedakah funds that aren’t held for immediate disbursement (for example, where principle was donated to invest and the profit will be distributed to tzedakah) aren’t included in this prohibition.

    The Rashba’s Teshuva

    The Rashba (Teshuvos Meyuchasos 222) says that tzedakah funds may be exempt from the prohibition of interest, as there’s no unique owner of the funds who acts as the lender. (R’ Moshe famously applies a similar logic to argue that corporations shouldn’t fall under the prohibition of interest as a borrower. R’ Moshe though rules that this exemption won’t apply to a lender.)

    However, the Rashba limits this leniency only to where tzedakah funds aren’t apportionable to a specific person in need. Furthermore, he says that this leniency was only suggested “as halacha” but shouldn’t be relied on practically.

    Borrowing with Interest for a Shabbos Meal

    The Magen Avraham (242:2) quotes the Yerushalmi mentioned by the Or Zarua as support that one may borrow with interest to perform a mitzvah, such as purchasing food for shabbos.

    However, the Mishnah Berura says this should only be relied on when the interest was borrowed in a permissible manner, either through heter iska or from a non-Jew.

    Why would the Yerushalmi need to permit borrowing with interest if it’s done in a permissible manner?

    The meforshim explain that even though it’s generally not advisable or financially prudent to borrow with interest at all, one may do so for the sake of a mitzvah, as long as it was done in a permissible manner.

    Bottom line, the prohibition of interest is so severe that the Torah holds the borrower, lender, guarantor and witnesses liable. Poskim should be consulted for practical guidance.


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