Yad L'Tzedaka
Yair Hoffman
Initial Mareh Mekomos:
1] Ran Nedarim 7a "Ul'inyan Halacha";
2] Machane Ephraim Hilchos Tzedaka Siman Bais;
3]Nesivus HaMishpat Dinei Tfisa Klal Bais;
4] Tosfos Yom Tov Peah 5:4 "V'nosain l'aniyim";
5]Shach 259:14;
6]Teshuvas Maharit #39
INTRODUCTION
The term "Yad" in regard to Nedarim means "handle" or truncated or abbreviated statement. We paskin that a truncated neder is effective just like a fully stated vow is effective. What about nedarim for Tzedakah? The Gemorah on daf zayin amud aleph asks the question and ends with a safaik. There is a fascinating and long Ran that discusses it. Before we get into the Ran,
How do we paskin l'halacha? We are machmir and we say that yes, there is yad litzedakah. This is the psak in the Rambam Hilchos matanos aniyim (8:2) and in the Tur and shulchan Aruch siman raish nun ches - sif bais.
WHY ARE WE MACHMIR
Why are we machmir? It is either because we are dealing with a safaik issur deoraisah of Bal te'acher or because of the manner in which the Gemorah discusses the shailah - since it pursues the im timtzah lomar yaish yad litzdakah - that would be the Gemorah's netiyah.
So if you say, for example after giving some tzedakah, "And this" it is tofais..parenthetically, the Keren Orah and the Kehilas Yaakov say that the Gemorah is talking only toch kedai dibbur. Otherwise it would not be a yad.
It is interesting because the Gra - however, in raish nun tes sif kotton tes vov seems to hold that we are maikel - not like the mechaber and the Rambam and also learns that there is a machlokes here between the bavli and the yerushalmi.
Of course this has numerous nafka minas l'halacha. You told someone that you are giving him a check, but you don't remember the exact amount. Do you have to be machmir and write out to the point of no safaik? Yes, you do loit the Rambam and Shulchan Aruch. Maybe not loit the Gra. It's a Gemorah in menachos daf kuf vov amud bais - pirashti v'aini yodaya mah pirashti - the Gra would have to say lechorah that the yerushalmi argues on that.
HUGE TUMULT
The Kuntrus HaSfeikus (aleph tes) brings down a huge mabucha in the Rishonim about whenever we have sfeikos in regard to issues of Tzeddakah. Do we treat it like safaik mammon? or do we treat it like safaik issur? Safaik mammon, of course, is lekulah - safaik issur would be lechumrah.
GOAL OF TONIGHT'S SHIUR
So the goal of tonight's shiur is to try to give a mehalech in understanding this mabucha the machlokes rishonim.
MACHLOKES BETWEEN RAN VERSUS RAMBAN AND RASHBA
The Ran (Ul'inyan Halacha), the first of our marei mekomos, brings the Ramban who says that since it involves a question of Issur - we are machmir. The ran explains that this is also the view of the Rashba.
The Ran himself argues on their view, and says that all cases of safek matanos aniyim are considered cases of sfaika d'mamona, and yet we are maikel just as in all other cases of monetary disputes.
The Ran asks two questions on the Ramban and Rashba.
QUESTION FROM CHULIN
The first is from the Gemorah in Chulin 134a. A Ger had a cow that was shechted. We don't know whether the cow was shechted before he was megayer or after. If it was before, then he is not chayav in matnos kehuna. If it was shechted after he was megayer - then he is chayav in matnos kehuna. The Mishna says that in a safayk like this - he is patur from the matnos kehuna. The Gemorah in Chulin asks from an ant-hill. If tvuah is found in it and we are not sure whether it came from the baal habayis or from leket. The mishna in peah says that its safaik leket and that safaik leket is treated just like leket. The reason for the chiyuv is from the pasuk "ani varash hitzdiku" and the Gemorah darshens tzedek meshalaim vetain lo - give it to him.
The gemorah asks what's the difference between safaik leket and safaik matnos kehuna? The Gemorah answers that safaik leket has a chezkas chiyuv its found in the place where the baal habas didn't go over yet - therefore he is chayav in it misafaik. By the cow - the chazaka is to patur. He started off as a goy. So here we don't say "tzedek mishelcha vetain lo."
The Ran asks that loyt the Ramban and Rashba that every safaik matanos aniyim has a din of safaik deoraisah lechumrah - this is only a din in safaik matanos aniyim but safaik matnos kehuna would be sfaiko lekula. Why? because that is straight vadai safaik mammon - the nesinah is a mamonisdika din.
If so, the Gemorah could have answered the difference between the two cases as follows: Matnos Kehuna is mamonos and any safaik in it is lekulah. But the case of the anthill is safaik matnos aniyim and that would be sfaiko lechumrah. Since the Gemorah didn't do that and instead came onto the chezkas chiyuv - its clearly mashma that its only because of the chezkas chiyuv but without this - misafaik it would be patur!
QUESTION FROM YUMA
The Ran asks a second question from the Gemorah in Yuma 8b. There the Gemorah says that when it comes to dmai - the tvuah of an am haaretz who mostly takes off the matanos - chazal only required a nachtom, a baker, to take off trumas maaser, but not trumah gedolah nor maaser rishon or maaser ani. The reason is that trumah gedolah, am haratzim do take off rav yochanan kohain gadol it seems did some sort of a study on this. Maaser rishon and maasaer ani - there is a hamotzi mechaveiro alav haraydika din. The Gemorah asks why weren't they mechayav them to take off maaser shaini. Now the Ran points out that if safaik matanos aniyim is a safaik issur - the Gemorah should have also asked from maaser ani! It didn't - it just asked from maaser shaini!
From these two proofs the Ran says that safaik matanos aniyim should be lekulah.
So what is pshat in the machlokes? What do the Ran and Rashba hold as opposed to the Ran?
THREE MEHALCHIM
There are 3 basic mehalchim, that I have found in the achronim, and I would like to suggest a fourth. The three mehalchim are that of the Machaneh Ephraim - the first one; the second is the sh'ar Yosher along with the Kehilas Yaakov and Rav Dovid Povarsky, the third mehalech is that of the GraNat, and I would like to suggest a 4th mehalech.
FIRST MEHALECH - MACHANE EFRAIM
Rav Ephraim Navon zt"l (1677-1735), Rav of Constantinople and the mechaber of the Machaneh Efraim asks a question (Hilchos Tzedakah siman 2). There is a concept called amirah legavoAH is like mesira lehedyot. Hekdesh does not need haknaah. Whenever you say "harei zeh hekdesh" it goes to hekdesh immediately - it is an immediate haknaah.
Do we say the same thing for tzedaka? When someone says, "selah zu l'aniyim" is this automatically theirs without need for further kinyan? "Amirah litz'daka is like mesira l'aniyim or not? The Machaneh Efraim correlates this issue to the debate between our Ran and the Rashba. So loit the Ran, it is already like Mesira to the ani and memailah there is no issur of bal te'acher. The other side holds that this is only a din by hekdesh l'gavoah.. This tzad would hold that his words don't make a kinyan it only makes a neder. The Rashba holds lie this tzad and that there is no mammon aniyim here - only neder.
The Ran would hold that this concept of amirah lgavoah also applies by tzedakkah and it was alred given. There is no neder issues going on here - only mammon.
Rav Naftali also quotes the Av Beis Din of Slonim, Rav Yehoshua Yitzchok Shapira zt"l (1801-1873), author of the Emek Yehoshua (Siman 16) who also explains the Ran as holding that Amirah litzdaka is like mesira, just like the Machaneh Efraim. He continues that according to this - it is not considered safaik issurah at all.
Why?
Because even if we say that there is Yad for tzedakah, it is already money that belongs to the aniyim. There is no longer an issur of bal yachel or bal te'acher. He has already fulfilled his Neder!
QUESTIONS ON MACHANE EFRAIM MEHALECH
One problem with the Machane Efraim is that it only answers up for the Rashba for Tzedaka - but nor for Peah because Peach is certainly mammon aniyim first. There are also a few other issues in the Machaneh Efraim that the Granat brings down, and one can be meyashev perhaps the issue of Peah - but it is difficult.
SECOND MEHALECH
Others want to explain this machlokes by being Toleh it on another machlokes of being makdish something shelo bah l'olam. This is the mehalach of the Nesivus in Dinei Tfisa klal Bais. It is what Rav Dovid Povarsky writes in siman raish samech bais. The Steipler also says this in siman zayin and its also the mehalech of the Shaarei Yosher shaar hay perek chof.
The Rambam in hilchos mechira (20:15) explains that if someone says "kol mah shetailed behaimasi iyihe hekdesh l'bedek habayis" even though it is not mikadaish he is chayav lekayem diburo.. Even though he says harei zu , and not harei alai it is still a neder on the person. It comes from the pasuk of kol hayotzeh mipiv yaaseh. This is what the Rashba would hold.
The Raavad disagrees and says it is not chal.. It is a davar shelo bah l'olam and he didnt say it belashon of a neder. The Ran would hold like the Raavad.
PROBLEM WITH SECOND MEHALECH
There is a bit of a problem though with this mehalech. There would be a safaik issur going on with the case of the ants. According to the Rashba, there would be a safaik issur of lo selakait - so even without the issue of chezkas chiyuv, it would be assur according to the Rashba - for this safaik issur we should be machmir. The nesivus gives an answer, but it is not pashut.
THE GRANAT'S MEHALECH
CHAZAKAH REMOVES THE PROHIBITION
Rav Naftoli is following the basic structure of the Machaneh Efraim, but he has a different twist. He says his chiddush that whenever we say that cases of Safaik Mammon we deal are maikil even though, in reality, they deal with a possible prohibition of Lo Sigzol – stealing – this issue may be explained as follows:
In any case of safaik we follow a Chazakah to resolve the doubt. For example, a safaik aishes ish, we establish her on her previous chazakah – being a single girl. The same is true regarding Safaik Mammon – we establish the money on its chazakah status and the safaik is resolved.
This is what we say that Safaik Mammon we deal with leniently, that is to the person being sued – the person suing cannot take money from him based upon a doubt. After the situation has been ruled upon leniently – based upon the principle of Chazakah – there is no further violation of Lo sigzal because the money is his.
According to this explanation, it can be said that when there is a safaik in Matanos aniyim, if we rule regarding tzedaka that Amirah is considered like giving it to them – so this money is considered safaik mammon of the aniyim and we are lenient toward the person who is being sued to rule on the doubt just like any other case of money in doubt. It is like it is his own money and there is no problem of bal te’achair.
According to this, the parameters of Bal Te’acher where it was separated but not yet given – is that he is obligated to give what has become their money to them. Here, the ruling (based on the Chazakah) is that it is NOT considered mammon aniyim, just as there is no issur of Lo Sigzol. There is no issur of Bal Te’acher because the prohibition is only on Mammon Aniyim.
EXPLAINING THE RAN AND RASHBA
The Ran could very well hold that it is like general Safaik Mammon, where we are lenient and there would be no prohibition.
The Rashba, however, holds that we do not say in regard to tzedakah that Amirah is like giving it. Therefore, the parameters of Bal Te’acher in Tzedakah is even in his own money where he is obligated to give these funds to Aniyim on account of his neder. When there is a safaik in the neder he must still give it to them because it involves a possible prohibition – the prohibition of Bal Te’acher. He is obligated to be machmir just like in any other possibility of issur – prohibition. This is the explanation of the Machaneh Efraim who connected it to the debate between the Ran and the Rashba with whether we say Amirah for Aniyim is like having given it over to them or not.
FOURTH POSSIBLE MEHALECH
ANSWERING QUESTION FROM YUMA
Let's try to deal with the Ran's question on the Ramban and Rashba from Yuma. Lechorah one can answer pashtus that Dmai does have a Rov. Most am haratzim take off the matanos. The Gemorah didn't ask from safaik matanos aniyim because of the Rov, but without that Rov it would have been a question.
The Chasam Sofer in Yoreh Deah Raish Mem grada answers the Ran's question like this.
ANSWERING QUESTION FROM CHULIN
Now let's go to the question from Chulin. Lechorah the point that the Ran is bringing out is the need for a chezkas chiyuv by leket. Had there not been a chezkas chiyuv - had there been no chazaka then we would have said patur.
This is how the Maharit in the Teshuva lamed tes learns the Ran. He brings a raya to the this from a gemorah in bechoros daf yud zayin amud alef.
TUREI EVEN'S MEHALECH
There is a Turei Even on Rosh hashana, however, that learns that it's not pshat that when there is no chezkas chiyuv its patur, rather its because the parah has a chezkas pturah before he was a yid - that's the operative factor! In fact, he learns that the chezkas chiyuv by leket is lav davka. Its not so mashma in the lashon of the Ran because the Ran shtells on the lashon of chezkas chiyuv, but the hemshech may be like what the Turei Even brings.
The Turei Even wants to be meyashaiv here for the Ramban and Rashba by tzedaka where there is no chezkas ptur that the din should be lechumrah.
CHIDDUSH BY SAFAIK LEKET
I wanted to say a shtikel Chiddush by safaik leket - we see this chiddush from the Tosfos Yom Tov in Peah. The chiddush is that safaik leket is not just considered leket because of a chumrah. Rather it is full-fledged leket. How do we see this? The Tosfos Yom Tov paskins that an ani who got safaik leket is completely patur from taking maasros off it! Why should this be? Rather, it must be that the pasuk is telling us a din vadai here by leket.
if that's the case, then we can't compare cases where there is a pasuk telling us vadai to a case where there is no pasuk - where there is a true safaik. The Rashba and Ramban can learn the Gemorah over there like the Tosfos Yom Tov and then there would be no raya either way from the case of Chulin.
Aye, you will ask me from Parah like the Turei Even's mehalech that whenever there is a chazakah to patur, its okay and that would still be a raya to here in our case - like the Ran!?
CHAZON ISH
So for that issue, I want to introduce a fascinating Chazon Ish.
The Chazon Ish YD 7:6 says that the chezkas p'tur by the case of the parah in chullin is not so pashut. How so? True, the ger was a goy until he was megayair and there is a chazakah that the cow is patur from the matnas kehuna, but there is a second chazaka. The cow has a chezkas chaim! It has a chezkas haguf that it was still alive when its owner was megayer and therefore, it should have matnos kehunah.
The Ran can learn that the two chazakos cancel each other out. The Rashba and Ramban can learn that since Chazaka is just a hanhaga, as we see in the Teshuvas Rav Akiva Eiger (Siman Kuf lamed vov) and other meforshim - then the first hanhaga is what counts. The chazaka of the cow doesn't count as yet because he is still a goy. We do not make use of chazakos regarding matnos kehuna when dealing with the cow of a goy. Regarding the ger, however, we do make use of the chazaka. This is the first chazaka that applies and the only one because it is the first hanhaga. The Ran can perhaps also hold that chazaka could be a shtikl birur. There is such a pnei Yehoshua cited in Shmaitzah aleph.
The harvacha of this mehalech is that it does not have any of the kashas of the four previous mehalchim.
APPENDIX
Below is a translation of the Granat on the sugyah.
Rav Naftoli Trop zt"l (1871-1928 - yartzeit 3 Tishrei), the Granat - the Rosh Yeshiva of the Chofetz Chaim's Yeshiva in Radin, Poland, also has a shiur on this subject. In the shiur he brings down the Ran on the Gemorah daf zayin.
QUESTION ON RAN
Reb Naftoli zt"l asks on the Ran that every case of safek matanos aniyim is also safek issur not just safek mammon. There are the issurim of bal yachel and bal te'acher! If so, then we should be machmir- not maikil!