ZEVACHIM 4 (2 Iyar) - Dedicated by Mrs. Libi Feinberg l'Iluy Nishmas her late mother, Rachel Leah bas Reb Yaakov Ha'Levi.

4b----------------------------------------4b

1)

ACHARAYUS FOR TZEDAKAH [Tzedakah :Acharayus]

(a)

Gemara

1.

(Beraisa - R. Shimon): "V'Nirtzah Lo Lechaper Alav" - one has Acharayus for a Korban that is Alav. (If it gets stolen or lost or blemished, he must bring another.) If it is not Alav, he has no Acharayus.

2.

(R. Yitzchak bar Avdimi): When he says Alai, he accepts responsibility to bring it no matter what happens.

3.

Chulin 139a (Rav Hamnuna): All agree regarding Erchin (a pledge to give to Hekdesh an amount based on a person's age and gender), even if he said Alai, he has no Acharayus.

4.

This is because "Alai" is not extra. It is needed to obligate himself! "My Erech" or "Ploni's Erech" is meaningless, for he did not say who must give it!

5.

Objection #1 (Rava): He could say "Hareni b'Erki (or b'Erech Ploni", I am obligated to give my Erech or Ploni's Erech)!

6.

Objection #2 (Rava - Beraisa - R. Noson) Question: "v'Nasan Es ha'Erkecha... Kodesh la'Shem" - the verse discusses redeeming a field. Why does it say "ha'Erkecha"?

i.

Answer: One has no Acharayus on money given to redeem Hekdesh or Ma'aser Sheni. One might have thought that similarly, there is no Acharayus on money designated to pay Erchin. The verse teaches this is not so. The money is Chulin until it is given to the Gizbar.

7.

Correction: Rather, Rav Hamnuna taught that all agree about Erchin. Even without 'Alai', he has Acharayus. It is Chulin until it is given to the Gizbar.

8.

Erchin 6a (Rav Nachman): If one said "this coin is for Tzedakah", it is permitted to change (borrow) it.

9.

(R. Ze'ira): This is only if he said "Alai". If he said "this", the very coin must be given to Tzedakah.

10.

Objection (Rava): Just the contrary! If he said "this," we let him change it, so he will have Acharayus. If he said "Alai", he already has Acharayus, so we need not allow him to change it! Rather, in either case he may change it.

11.

Support (for Rava - Beraisa): Neder is Tzedakah, but Hekdesh is not Tzedakah.

12.

This means that Bal Te'acher applies to (a Neder to give) Tzedakah, but Tzedakah is unlike a Korban, for one may use Tzedakah, but not Hekdesh.

13.

Rosh Hashanah 6a: "B'Ficha" teaches that Bal Te'acher applies to Tzedakah.

14.

Rava: One is liable immediately for delaying to give Tzedakah.

15.

This is because there are Aniyim here.

(b)

Rishonim

1.

Rambam (Hilchos Matanos Aniyim 8:1): Tzedakah is a Neder. Therefore, if one said 'Alai to give a Sela to Tzedakah' or 'this Sela is for Tzedakah', he must give to Aniyim immediately. If there are not Aniyim, he separates the money and leaves it until he finds Aniyim. If he stipulates not to give until he finds an Oni, he need not separate.

i.

Ran (Rosh Hashanah 1b DH v'Nimtzeis): The Gemara said that Bal Te'acher applies even if he did not separate the Korban yet. Similarly, regarding Tzedakah one must separate the money even if there are not Aniyim here. However, he need not pursue them to give it to them.

ii.

Minchas Chinuch (575:12,DH veha'Ram): Why do the Rambam and Ran require separating the money immediately if no Aniyim are around? If an Oni comes, he can separate and give then. Until an Oni comes, he cannot fulfill the Mitzvah, so separating does not help! Perhaps this is a mere stringency in case an Oni will come (so the money will be ready).

iii.

Shevet ha'Levi (2:116): The Ran holds that letter of the law, one must separate immediately. In every vow, there is separation and giving. Separating itself is Avodas Hash-m. There was a Hava Amina that the Torah was particular only about this, and once he separated he has no Acharayus.

iv.

Kiryat Sefer (Hilchos Matanos Aniyim 8): When one separates the Sela that he vowed, until it reaches the Gabai he may change it for another coin, since he has Acharayus. Tzedakah is unlike Hekdesh, which is Asur b'Hana'ah.

2.

Rashi (Erchin 6a DH Lo): When he said 'it is Alai to give this Sela to Tzedakah', since he said Alai, he has Acharayus for theft and loss. It is like his.

(c)

Poskim

1.

Taz (YD 206:4): Resha'im vow. I.e. he says 'Alai', and he has Acharayus, and there is danger lest it be lost and he will not bring another. A Tzadik gives Nedavos. I.e. he says 'this is'; there is no Acharayus.

2.

Chavos Ya'ir (199): If one took Tzedakah money, Beis Din cannot force him to give more, for no one can claim the money (unless the Aniyim of the city make a Harsha'ah together). However, to be Yotzei Yedei Shamayim (fulfill his obligation to Hash-m) he must pay again. We learn from Rosh Hashanah (6) that when one says that he will give Tzedakah, it is as if he gave it to Aniyim. One cannot exempt himself for negligence with their money!

3.

Chavas Da'as (YD 160:10 Bi'urim): The Maharit (YD 39) says that theft does not apply to Tzedakah. Even if one consumed the money, he is exempt, just like a Zar who ate Matanos Kehunah. This is astounding. In Erchin, we permit using money designated for Tzedakah, so that he will be a Shole'ach Yad, and it will be in his Reshus and he will have Acharayus. All the more so one who ate them has Acharayus! Do not say that he is liable merely to be Yotzei Yedei Shamayim. 'Liable' connotes that Beis Din enforces this. We can say that there, he said 'Alai', so he has Acharayus to fulfill his vow. This is like Acharayus of Hekdesh, even though one who damages Hekdesh is exempt. Regarding Hekdesh, one who said 'this' is exempt, for he already fulfilled his vow. Regarding Tzedakah, perhaps he has Acharayus even if he said 'this', for regarding Erchin, all agree that saying 'this' is like saying 'Alai', since it is Chulin until it is given to the Gizbar. Only regarding Hekdesh, once he says 'this (is Hekdesh)', it is considered to be in Hash-m's Reshus. Regarding Tzedakah, until the Gizbar gets it the Aniyim did not acquire it, so he did not fulfill his vow. Therefore, one may change the money only until the Gizbar gets it.

i.

Question (Tzitz Eliezer 5:13): Erchin 6a proves that regarding Tzedakah, one who said 'this' has Acharayus only if he used the money!

4.

Tzitz Eliezer (ibid.): If one took money from his pocket for Aniyim, but they did not come to the Beis ha'Keneses and he forgot and left the money in its place and it is missing, he must give again to be Yotzei Yedei Shamayim. Machaneh Efrayim (Shomerim 17) holds that a Shomer of Tzedakah is exempt even when there is a claimant. Most disagree. However, here is different, for he vowed. Since he was negligent, he was not Yotzei his vow. All agree that it is as if he still did not separate the money he vowed. This is not only if he said Alai. In such a case, one is liable to Hekdesh if it was stolen or lost. He is liable even if he said 'this'. He is exempt from Acharayus of loss or theft. There is no proof to exempt from negligence. One who damages Hekdesh is exempt, but here he is liable because he ruined his Nedavah. Putting the money in an exposed place is negligence. The Rambam (Hilchos Ma'aseh ha'Korbanos 14:5) says that there is Acharayus for theft or loss of a Neder, but not for death or theft of a Nedavah. He did not exempt for loss of a Nedavah! We understand this if one is liable for negligence with a Nedavah. We learn from Erchin 6a that if one used Tzedakah money and gave other coins in their place, and they were lost or stolen, even if he said 'this', he is liable. Since he used them, this is like Shlichus Yad (unauthorized use) in a deposit, and it is in his Reshus regarding payment. Even without the Chiyuv of a Shomer, he is liable b'Yedei Adam due to his vow.

5.

Avnei Nezer (YD 293): If David put money in a Tzedakah box without accepting a vow, and the money was stolen, surely he is exempt. If he accepted a vow, what is the law? According to Ri ha'Levi, the box acquired on behalf of Aniyim. It is as if the Gabai received it, so David is exempt. The Ramah holds that a buyer's Kelim do not acquire in the seller's Reshus, so David is liable. However, since there was permission to leave the box there, the Ramah could agree. However, the Rif, Rambam and Rosh hold that Chatzer acquires like a Shali'ach, i.e. only if the receiver wants. Aniyim do not want it to acquire, for then the giver loses Acharayus. Also, they are not near the box, so it is not guarded l'Da'atam. The Ran disagrees, but we follow the Rif, Rambam and Rosh against him. Perhaps David is exempt, for he accepted only to put the money in the box, and the Gaba'im will distribute it. He has no Acharayus after this. However, perhaps he intended that it get to the Gabai, for if not, he did not accept a full Mitzvah. Perhaps if he does not accept this, he has no Chiyuv at all! Acceptance to bring an Olah without Acharayus obligates making it Hekdesh, but accepting to set aside money for Aniyim does not make it the Aniyim's money. Perhaps he only intended to put in the box with intent to transfer ownership to the Aniyim. However, we find that one who vows a Korban has Acharayus until Zerikah, even though from only Kohanim can do Kabalah and onwards.

i.

Tzitz Eliezer (16:29): Avnei Nezer leans to obligate David. Ma'amar Mordechai (15) says that putting in the box is as if it came to the Gabai. Many Acharonim agreed. David can say 'I hold like them.' Even if the Halachah does not follow them, perhaps he only accepted to put in the box. (However, if he vowed Stam Tzedakah, he cannot say so.)

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