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.
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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.
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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
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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
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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
teachair.
According to this, the parameters of Bal Teacher 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 Teacher 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 Teacher 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 Teacher. 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
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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?
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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!
NESIVUS IS MACHMIR AND HOLDS
Indeed, for this very reason, the Nesivus HaMishpat (Dinei Tfisah Klal 2) rules that
any question in Matanos Aniyim must be dealt with stringently since it is a question
of the prohibitions of Bal Yachel and Bal te'acher. There is no comparison to other
cases of monetary doubt - where even though there may be an issue of "Lo sigzol" it is nonetheless not a problem because the Torah didn't assur safek gezel. The
Ran's view needs a bit of yishuv.
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. Do we say the same thing
for tzedaka? "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
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!
PROBLEM
Rav Naftoli though brings a kasha on this the Gemorah in Rosh HaShana (6a). There
the Gemorah says mefurash that even if one says "Afrish velo Akriv - I will separate
the animal but I won't actually bring it up as a korban" - he has violated bal te'acher.
It is mashma from there that the same will be true with tzedakah - if you say, "I will
separate it but not physically give it to them" he is in violation of bal te'acher. Yet,
according to what the Emek Yehoshua writes it is not possible to be in violation of
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bal te'acher because he has already fulfilled his neder and the money is considered
in the possession of the poor people. The notion of Bal Te-achair is not applicable.
We must say that it is clear from the Gemorah that even though the money belongs
to the aniyim and he has already fulfilled his vow, nonetheless, since he is holding
onto it through his neder and has not handed it to them - he is in violation of Bal
Te'achair.
TUREI EVEN'S QUESTION ON RAISH LAKISH
*Reb Aryeh Leib Ben Asher Gunsberg (1695- 1785, also known as the Shages Aryeh)
in his Turei Even (Rosh HaShana 4a) asked a question regarding Raish Lakish's
opinion cited in Chulin (139a). Raish Lakish holds that if a person was makdish a
manah to Bedek Habayis, he is not responsible for it financially - If this is true asks
the Turei Even - how can we ever have a case of Bal Te'achair?
ATTACK ON TUREI EVENS QUESTION
The truth is that his question is not a question because the Gemorah there in Chulin
asks according to Raish Lakish only from the case of where he says, "Bayis zeh alai
korban to Bedek HaBayis," and the house collapsed then he is obligated to pay.
The Gemorah answers, This is only true [that he is responsible for payment] when
the house had collapsed, but when the item is still around wherever it may be - it is
considered as if it is in the Bei Gazah of the Merciful One.
HE HASNT FULFILLED THE NEDER
It is clear that even according to Raish Lakish he has not fulfilled his neder with just
the hafrasha of it. Because if so, why would he be obligated when it is not around
anymore? He has already fulfilled his neder!
Rather, Raish Lakish holds regarding the obligation to pay as long as it still around
in the Bei Gazah he is patur from payment.
According to this, we can say that even according to Raish Lakish he can be in
violation of Bal Teacher in bedek habays even after the hafrasha. Why? Because
he had as yet not fulfilled the neder.
It is clear from the words of the Turei Even who wrote that whenever he has already
fulfilled the neder the prohibition of Bal Teacher does not apply.
This is also the rationale of the Emek Yehoshua mentioned earlier. However, we
have already written that this is impossible to say, because according to this there
would never be a case of Bal Teacher where he first separated it and didnt give it
the recipients according to those who hold in regard to Tzedaka that Amirah is like
giving it over.

If so, perforce it must be that the parameters of Bal Teacher when he separated it
but didnt give it yet is that he is obligated to give them what became their money
through his neder.
CHAZAKAH REMOVES THE PROHIBITION
Rav Naftoli 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
teachair.
According to this, the parameters of Bal Teacher 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 Teacher 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 Teacher 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 Teacher. 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.
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