30 Oct Wealthy No More
A charitable pledge constitutes a vow that must be fulfilled. However, like many vows, it can be nullified if proper regret is presented to a religious court, if it is shown to have been mistaken. If a rich person pledges a large sum of money to charity and then loses his fortune, he may annul his vow. But if he already gave the money to charity, can he ask for it back?
The Tur (Yoreh De’ah 258) quotes a view (“some say”) that you may annul before a religious court a vow to give charity only if the money is still in your possession. The source is a responsum of the Rashba (1:656), in which he addresses a son claiming that his father had changed his mind about a donation before he died. Among the reasons the Rashba rules against the son is that the father was required to formally annul the vow in front of a beis din and that the father had already handed over the property, so that annulment would not even work. He compares a charitable donation in the hand of a gabbai (administrator) to terumah, the priestly portion of produce, in the hand of a kohen.
The Gemara (Nedarim 59a) asks why terumah is nullified in a mixture of 100. Shouldn’t it constitute a davar she-yeish lo matirin, something that can be made permissible, through nullification of the assignment/vow? A person who assigned a specific vegetable as terumah can nullify that assignment, thereby removing the need for nullification (bitul). In such cases, bitul doesn’t work. The Gemara answers that the terumah is already in the hands of a kohen. Once you give the terumah to a kohen, you can no longer nullify the assignment. Similarly, argues the Rashba, once you give charity to a gabbai, you can no longer nullify a vow. The Shulchan Aruch (Yoreh De’ah 258:6) rules like this Rashba.
However, the Noda Bi-Yehudah (2:YD:154) challenges this ruling. He points out that the Rosh quotes an alternate interpretation of the Gemara. Rav Eliezer of Metz explains that the kohen cannot annul the assignment because he never made it. The person who gave the terumah to the kohen still has the power to annul it but he has no concern with the mixture and bitul. The Rambam (Mishneh Torah, Hilchos Terumos 4:17) seems to follow this approach, as well, since he does not mention any limitation on annulment.
II. OWNERLESS TRANSFER
The Noda Bi-Yehudah further argues that even those who explain the above Gemara as meaning that you cannot annul assignment of terumah after you give it to a kohen would disagree with the Rashba’s equation of charity with terumah. He quotes the Ran (Nedarim 85a s.v. u-me-ha shaminan) that nullifying terumah that a kohen took from hefker, property rendered ownerless, removes the terumah status but does not remove the kohen’s ownership. The Noda Bi-Yehudah explains that when a person declares produce to be terumah, he is relinquishing his ownership and rendering the food hefker. This allows any kohen to take it. Even if the person nullifies his declaration, he cannot undo the hefker and the kohen’s subsequent acquisition.
Similarly, when a person pledges money to charity, effectively he is relinquishing control and declaring the money hefker, albeit dedicated to charity. However, only an official gabbai appointed by the community can make an acquisition from hefker without the new owner (poor people) present. If you donate to anyone other than an official gabbai, no one has acquired the money that you gave. If the you nullify your vow, you remove the pledge and can then reclaim your ownership. Therefore, says the Noda Bi-Yehudah, according to the Ran a donor can revoke his pledge even after giving it to an informal gabbai, as long as it has not been distributed to the poor.
However, the Noda Bi-Yehudah is hesitant to rule against the Rashba, which would effectively be ruling against with the Shulchan Aruch. Instead, he argues that the Rashba believes that nullification requires true regret. A gabbai can claim that he does not believe the donor’s regret. In doing so, the gabbai rejects the nullification and refuses to return the donation. But if the gabbai believes the donor’s regret, he is free to return the money.
III. ACQUIRING TERUMAH
The Oneg Yom Tov (no. 91) disagrees with the Noda Bi-Yehudah’s understanding of the mechanics of a donation of terumah or charity. You don’t render something ownerless when you declare it terumah or set it aside for charity. Rather, you give it to the kohen or the gabbai. And just like if you mistakenly give something away it remains yours, so too if you nullify the pledge the item remains yours.
Additionally, the Oneg Yom Tov argues that the rule that terumah cannot be nullified once it reaches the hand of a kohen follows the view of Rabbi Abba (Nedarim 59a; Bava Metzi’a 11a-b). Since we follow Rabbi Zeira and not Rabbi Abba, the Oneg Yom Tov argues that we do not accord significance to terumah reaching the kohen’s hand. Rather, it follows the normal rules of a transaction. Therefore, if the terumah was given mistakenly, it still belong to the original owner. Similarly, says the Oneg Yom Tov, if you pledged to charity and gave money to a gabbai, and then nullify the pledge as a mistake, the money still belongs to you.
However, if you gave money to charity without making a prior pledge, then you have no formal way of declaring it a mistake. In such a case, you can never ask for your money back. Therefore, it is best to pledge to charity first and then give, so you can ask for it back if you need it.
The Oneg Yom Tov concludes by pointing out that the Tur disagrees with his approach. The Shulchan Aruch does, as well. I take this to mean that he defers to those authorities and does not allow retrieving money from charity once you give it to a gabbai.