matos checks to charity

8/9/2019 Matos Checks to Charity

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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, heshall 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 charitycollectors making their rounds, each with his personal tale and need. Of course, decidingto whom to give and how much is not always easy, and in the course of a singleShacharis prayer we might be forced to make several split-second decisions concerningdonations to charity.

The question we wish to address is the following. Rather than giving cash, it has becomefairly common to give collectors checks or charity vouchers. What happens if somebodygives away a check or charity voucher for $10, only to note that another collector had

already entered the other side ofshul. Rather than the $10 donation, he would like to splitthe donation into $5 each.

Having given the check or voucher to the first collector, does the donor retain the right tochange his mindto replace the $10 with a $5 checkor not? Furthermore, what is thehalachah when the check was signed, but not handed over to the collector? Can the donorchange his mind, or is the very signing of the check sufficient to obligate the donation tocharity?

Defining a Check

The first issue that must be clarified in answering this question is the definition of acheck. 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 samestatus 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 halachicperspective. One way is as an alternative to cash. As Harav Yisrael Yaakov Fisher usedto 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 NesivosShalom (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 acheck. Just like a person cannot revoke a given gift, so the giving of a check isirrevocable.

Yet, seeing a check as money depends primarily on the transferability of the check. Theseauthorities saw checks as cash because it is the common custom in Israel to pass onchecks from one person to another, their liquidity giving them the same status as cash.


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Today, although this might still be true in certain sectors of society, as a general rulechecks certainly fall far short of cash in terms of transferability. Most establishments willnot accept a check as paymentand certainly not somebody else's endorsed check. Thestatement whereby a check is "over lasocher" is hardly applicable to most sectors oftoday'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 todefine a check as an "instruction to the bank." According to this, a check has littlemeaning in terms of monetary law. Paying with a check is no more than giving the payeea signed instruction that will cause the bank to pay him money. Before the bank pays outthe money, nothing significantin a monetary sensehas happened.

This view is adopted by Harav Shlomo Karelitz in his Ateres Shlomo (Choshen Mishpat85), and is also expressed in Shut Kinyan Torah (7:113) of Harav Hurwitz, and in ChutShani of Harav Nissim Karelitz (Ribis p. 115).

However, many authorities have difficulty is viewing a check as nothing more than abanking instruction. In their opinion, a check should rather be viewed in light of its fiscalimplications, as a promissory notea 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 adebt, 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 ramificationsof 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 adebt 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 Yitzchak5:119; 6:170; 7:64, 131), and others(see Lehoros Natan 8:103, 104, 106; Teshuvos Vehanhagos 3:462). But how does thiswork? Why should a check be considered a full shtar chov?

Some explain the power of a check by reference to the principle ofdina demalchusa, thelaw of the land, which gives a check the power to extract money from the drawer. Onaccount of the legal power of the check, there is scope to consider it as a halachic shtarchov.

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 notea check is used to extract money from thedrawerit takes on the full status of a shtar chov with the power to create a debt (seeRema, Choshen Mishpat129:5;Rivash 385).

A further suggestion, which has also been postulated by several authorities, is that thewords 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 ZalmanNechemyah Goldberg (Techumin, vol. 14, p. 228) has suggested this mechanism based onthe principle of achrayus taus soferunder certain circumstances we assume that a


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clause applies to an agreement between two parties even though the clause was omittedfrom the written contract (see, in this respect, Shaar Mishpat117:1 and Divrei Chayim,Choshen Mishpat12).

Checks Donated to Charity

After having defined a checka definition that also applies to charity vouchers based onthe same principles as checkswe can now return to the question of somebody whowrote a check to a charity collector.

As mentioned, according to the definition of a check as cash, somebody who gives acheck to a charity collector cannot retract his donation. The same applies according to theabove definition of a check as a promissory notebecause a debt from drawer tocollector has been created, the drawer can no longer retract.

What, however, would be the halachic ruling according to those authorities who view acheck as no more than an instruction to the bank? Is it permitted for the donor to back outof his donation, or not?

The answer to this question hinges on the laws of nedarim outlined at the beginning ofthis week's Parashah. Although with regard to a regular gift, the person giving the giftmay be able (according to the above authorities) to retract his gift, all poskim wouldconcede that after handing over a check to a charity cause, it is prohibited for the donor totake back his donation.

The reason for this is because giving the check indicates the donor's decision to give thestipulated sum to tzedakah. After such a decision has been articulated, whether by speechor by means of a deed, a neder tzedakah (charity vow) obligates the donor to carry out hisoriginal intention (Shulchan Aruch, Yoreh Deah 258:12; see alsoRema, Choshen Mishpat243:2). This ruling is mentioned by several contemporary authorities (see MishnahHalachos 6:122).

Indeed, even when the donation is not made to charity, but as an ordinary gift, it isprohibited for the drawer to retract (according to all definitions of a check) a check whenthe gift is small (relative to the giver's wealth) to the extent that the recipient has no doubtthat the giver's promise will be fulfilled (based on Shulchan Aruch, Choshen Mishpat204:8; see Shevet Halevi 7:222).

Unspoken Charity Vows

A more difficult question arises when the check or voucher was written and signed withthe 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 Mishpat212:8;Rema, Yoreh Deah 258:13) cites two opinions as to whether ornot the obligation of a neder tzedakah applies. The consensus of authorities is that oneshould follow the stringent opinion. Thus, unless the donor made explicit his intentionthat no neder should apply until the check is handed over, he should follow his initialintention and give the donation.

There is, however, a significant practical difference between a nederenacted with speechand a nederenacted by means of a positive thought alone: the question of diverting thedonation to a different charity cause.


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When a nederis made with words (or otherwise articulated), many authorities maintainthat the neder enacts an actual transfer of ownership to the charity in question. This isbased on the rationale ofamiraso legavohah kemesiraso lehedyot: Merely articulating adonation is considered equivalent to actually handing something over (see NimmukeiYosef, 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 thespecified charity, and it may not be transferred to an alternative cause.

For a nedermade by means of thought alone, however, many authorities maintain that notransfer is made to the recipientonly 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 istherefore obligated to give the money to charity, he retains the right to change his mindconcerning which charity he wishes to donate to (Tzedakah U'mishpat4, note 13, basedonBeis Yitzchak2:82; see alsoAchiezer2:49;Minchas Yitzchak2:3;Beis Shlomo, YorehDeah 2:109).

A Returned Check

An interesting question discussed in Ateres Shlomo (Choshen Mishpat65-69) concernsan unfortunate occurrence in which a charity collector, upset by the smallness of thestipulated sum, handed the check he received back to the donor, presumably hoping for alarger donation. In the meantime, however, the donor passed away. The charity collectorreturned to the late donor's sons, requesting thatat the very leastthey should donatethe 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 aninstruction to the bank, the obligation incumbent on the father would be nothing morethan 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 fathers handing over of the check constituted the initiation of afinancial debt, which the heirs are obligated to pay.

It may be suggested, however, that the father never meant to initiate a debt in the eventthat the check was rejected by the charity collector. A further point that may serve toexempt the heirs is that the collectors rejection of the check absolves the donor of hisobligation.

Conclusion

The following points briefly summarize our discussion:

Even if it does not initiate a monetary debt, handing a check to a charity collectorinitiates 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 maintainthat a debt has been initiated, and the giver cannot retract. However, according tosome authorities it would be permitted to retract when the donation is consideredlarge (relative to the wealth of the giver).

Writing a check, even without giving it to the charity collector, usually involves amental decision to give a donation. Where this is the case, the writing of the check


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alone is sufficient to obligate the donation. The donor, however, retains the rightto decide which charity he wishes to donate the money to.

Only a full financial obligation is passed on to heirs. A neder tzedakah is apersonal obligation, which is not passed on to heirs.

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