Matos-Masei 5770

Speaking (and Writing) of Charity

If a man makes a vow to Hashem or swears an oath to establish a prohibition upon himself, he
shall not desecrate his word; according to whatever comes from his mouth shall he do.
(Bamidbar 30:3)

Anybody who attends regular services in shul is familiar with the picture of charity
collectors making their rounds, each with his personal tale and need. Of course, deciding
to whom to give and how much is not always easy, and in the course of a single
Shacharis prayer we might be forced to make several split-second decisions concerning
donations to charity.
The question we wish to address is the following. Rather than giving cash, it has become
fairly common to give collectors checks or charity vouchers. What happens if somebody
gives away a check or charity voucher for $10, only to note that another collector had
already entered the other side of shul. Rather than the $10 donation, he would like to split
the donation into $5 each.
Having given the check or voucher to the first collector, does the donor retain the right to
change his mind—to replace the $10 with a $5 check—or not? Furthermore, what is the
halachah when the check was signed, but not handed over to the collector? Can the donor
change his mind, or is the very signing of the check sufficient to obligate the donation to
charity?
Defining a Check
The first issue that must be clarified in answering this question is the definition of a
check. If a person gives actual money to a charity collector, he cannot change his mind.
The donation is a full gift, and the gift cannot be retracted. Does a check have the same
status as a monetary gift, whereby the donation is final and non-retractable?
In fact, there are three possible ways in which a check can be defined from a halachic
perspective. One way is as an alternative to cash. As Harav Yisrael Yaakov Fisher used
to say, in giving a check one does not say "I owe you," but rather "I give you." A check,
in his view, was as good as cash for all intents and purposes.
A more formal version of this view is presented in by Rav Shalom Gelber in Nesivos
Shalom (Ribis 173:55). Quoting from Haav Shlomo Zalman Auerbach, he explains that
"checks have become a traded entity." A ruling of the Jerusalem Rabbinate (vol. 9)
quotes a similar ruling from Harav Elyashiv shlita: "However, Rav Elyashiv has ruled
that today's checks are considered as everyday money, over lasocher."
Of course, according to this opinion there is no question of retracting after handing over a
check. Just like a person cannot revoke a given gift, so the giving of a check is
irrevocable.
Yet, seeing a check as money depends primarily on the transferability of the check. These
authorities saw checks as cash because it is the common custom in Israel to pass on
checks from one person to another, their liquidity giving them the same status as cash.
Today, although this might still be true in certain sectors of society, as a general rule
checks certainly fall far short of cash in terms of transferability. Most establishments will
not accept a check as payment—and certainly not somebody else's endorsed check. The
statement whereby a check is "over lasocher" is hardly applicable to most sectors of
today's modern society.
Banking Instructions or a Promissory Note
If not as cash, then how is a check defined? The most simplistic definition would be to
define a check as an "instruction to the bank." According to this, a check has little
meaning in terms of monetary law. Paying with a check is no more than giving the payee
a signed instruction that will cause the bank to pay him money. Before the bank pays out
the money, nothing significant—in a monetary sense—has happened.
This view is adopted by Harav Shlomo Karelitz in his Ateres Shlomo (Choshen Mishpat
85), and is also expressed in Shut Kinyan Torah (7:113) of Harav Hurwitz, and in Chut
Shani of Harav Nissim Karelitz (Ribis p. 115).
However, many authorities have difficulty is viewing a check as nothing more than a
banking instruction. In their opinion, a check should rather be viewed in light of its fiscal
implications, as a promissory note—a statement of debt made by the drawer to the payee.
According to this view of a check, handing over a check to the payee actually creates a
debt, which is paid when the money is transferred from the drawer's account to the payee.
A check is effectively a statement of debt, carrying with it all the halachic ramifications
of a regular shtar chov.
How a Check Becomes a Shtar Chov
This last view, which sees a check as a full promissory note whose handing over creates a
debt from drawer to payee, has been adopted by the majority of modern poskim. These
include Harav Shlomo Zalman Auerbach (quoted in Toras Ribis, chap. 18, note 35),
Harav Yitzchak Yaakov Weiss (Minchas Yitzchak 5:119; 6:170; 7:64, 131), and others
(see Lehoros Natan 8:103, 104, 106; Teshuvos Vehanhagos 3:462). But how does this
work? Why should a check be considered a full shtar chov?
Some explain the power of a check by reference to the principle of dina demalchusa, the
law of the land, which gives a check the power to extract money from the drawer. On
account of the legal power of the check, there is scope to consider it as a halachic shtar
chov.
Others, in particular Pischei Choshen (Halvaah chap. 10, note 21) and Bris Yehudah
(chap. 1, note 38), rely on the force of the custom (minhag). Because it is the common
custom to see a check as a debtor's note—a check is used to extract money from the
drawer—it takes on the full status of a shtar chov with the power to create a debt (see
Rema, Choshen Mishpat 129:5; Rivash 385).
A further suggestion, which has also been postulated by several authorities, is that the
words “Pay the order of …” should be re-interpreted to include a monetary obligation,
which is the underlying intention of the person giving the check. Harav Zalman
Nechemyah Goldberg (Techumin, vol. 14, p. 228) has suggested this mechanism based on
the principle of achrayus ta’us sofer—under certain circumstances we assume that a
clause applies to an agreement between two parties even though the clause was omitted
from the written contract (see, in this respect, Shaar Mishpat 117:1 and Divrei Chayim,
Choshen Mishpat 12).
Checks Donated to Charity
After having defined a check—a definition that also applies to charity vouchers based on
the same principles as checks—we can now return to the question of somebody who
wrote a check to a charity collector.
As mentioned, according to the definition of a check as cash, somebody who gives a
check to a charity collector cannot retract his donation. The same applies according to the
above definition of a check as a promissory note—because a debt from drawer to
collector has been created, the drawer can no longer retract.
What, however, would be the halachic ruling according to those authorities who view a
check as no more than an instruction to the bank? Is it permitted for the donor to back out
of his donation, or not?
The answer to this question hinges on the laws of nedarim outlined at the beginning of
this week's Parashah. Although with regard to a regular gift, the person giving the gift
may be able (according to the above authorities) to retract his gift, all poskim would
concede that after handing over a check to a charity cause, it is prohibited for the donor to
take back his donation.
The reason for this is because giving the check indicates the donor's decision to give the
stipulated sum to tzedakah. After such a decision has been articulated, whether by speech
or by means of a deed, a neder tzedakah (charity vow) obligates the donor to carry out his
original intention (Shulchan Aruch, Yoreh Deah 258:12; see also Rema, Choshen Mishpat
243:2). This ruling is mentioned by several contemporary authorities (see Mishnah
Halachos 6:122).
Indeed, even when the donation is not made to charity, but as an ordinary gift, it is
prohibited for the drawer to retract (according to all definitions of a check) a check when
the gift is small (relative to the giver's wealth) to the extent that the recipient has no doubt
that the giver's promise will be fulfilled (based on Shulchan Aruch, Choshen Mishpat
204:8; see Shevet Halevi 7:222).
Unspoken Charity Vows
A more difficult question arises when the check or voucher was written and signed with
the intention of making a donation, but was not yet handed over to the collector.
Concerning an unspoken thought of giving a donation to charity, Shulchan Aruch
(Choshen Mishpat 212:8; Rema, Yoreh Deah 258:13) cites two opinions as to whether or
not the obligation of a neder tzedakah applies. The consensus of authorities is that one
should follow the stringent opinion. Thus, unless the donor made explicit his intention
that no neder should apply until the check is handed over, he should follow his initial
intention and give the donation.
There is, however, a significant practical difference between a neder enacted with speech
and a neder enacted by means of a positive thought alone: the question of diverting the
donation to a different charity cause.
When a neder is made with words (or otherwise articulated), many authorities maintain
that the neder enacts an actual transfer of ownership to the charity in question. This is
based on the rationale of amiraso legavohah kemesiraso lehedyot: Merely articulating a
donation is considered equivalent to actually handing something over (see Nimmukei
Yosef, Bava Basra 148b; Ketzos Hachoshen 212:4; Pischei Teshuvah, Choshen Mishpat
252:14; but see Rema, Yoreh Deah 258:7). One must therefore give the donation to the
specified charity, and it may not be transferred to an alternative cause.
For a neder made by means of thought alone, however, many authorities maintain that no
transfer is made to the recipient—only an amirah, a spoken (or otherwise articulated)
word, can render the donation as though it were actually given over to the recipient.
Although the thought itself is enough to form a neder, and the person who thought it is
therefore obligated to give the money to charity, he retains the right to change his mind
concerning which charity he wishes to donate to (Tzedakah U'mishpat 4, note 13, based
on Beis Yitzchak 2:82; see also Achiezer 2:49; Minchas Yitzchak 2:3; Beis Shlomo, Yoreh
Deah 2:109).
A Returned Check
An interesting question discussed in Ateres Shlomo (Choshen Mishpat 65-69) concerns
an unfortunate occurrence in which a charity collector, upset by the smallness of the
stipulated sum, handed the check he received back to the donor, presumably hoping for a
larger donation. In the meantime, however, the donor passed away. The charity collector
returned to the late donor's sons, requesting that—at the very least—they should donate
the original sum their father had agreed to give (which was far from negligible).
The answer, at first glance, depends on the nature of a check. If a check is only an
instruction to the bank, the obligation incumbent on the father would be nothing more
than a neder tzedakah. This is a personal obligation, which does not transfer to heirs. If,
however, a check is a promissory note, which is the consensus of most present-day
authorities, then the father’s handing over of the check constituted the initiation of a
financial debt, which the heirs are obligated to pay.
It may be suggested, however, that the father never meant to initiate a debt in the event
that the check was rejected by the charity collector. A further point that may serve to
exempt the heirs is that the collector’s rejection of the check absolves the donor of his
obligation.
Conclusion
The following points briefly summarize our discussion:
 Even if it does not initiate a monetary debt, handing a check to a charity collector
initiates a neder tzedakah. It is therefore forbidden to revoke or stop the check.
 When a check is given as a regular gift (not to charity), many authorities maintain
that a debt has been initiated, and the giver cannot retract. However, according to
some authorities it would be permitted to retract when the donation is considered
large (relative to the wealth of the giver).
 Writing a check, even without giving it to the charity collector, usually involves a
mental decision to give a donation. Where this is the case, the writing of the check
 alone is sufficient to obligate the donation. The donor, however, retains the right
to decide which charity he wishes to donate the money to.
 Only a full financial obligation is passed on to heirs. A neder tzedakah is a
personal obligation, which is not passed on to heirs.