Question: I gave some of my ma’aser money to someone who claimed to be poor. I found out later that it is well-known that he is a swindler and is not poor. Does that mean that I must give ma’aser again?
Answer: In part 1 we saw that there is a dispute if one who unwittingly gave money to a swindler who was not really poor, fulfilled a mitzvah of tsedoko. This article will discuss whether one whose ma’aser money did not arrive at a real tsedoko must give ma’aser again.
The Arbo’o Turei Even (Responsa 6) rules that if one set aside money to be used as ma’aser and afterwards it was stolen, he does not need to set aside ma’aser a second time since he fulfilled his ma’aser obligation by setting aside the money as ma’aser.
The Chasam Sofer (Chulin 131A b.w. Sha’ani) disagrees. His reason is that in contrast to ma’aser of crops where, when one sets aside a tenth, the produce which is set aside becomes ma’aser and has specific dinim, nothing really happens to the money which is designated as ma’aser kesofim. For example, the one who set the money aside may later choose to use this money for his own private business and designate other money to give to a poor person. Therefore, one hasn’t fulfilled any obligation by setting aside the money as ma’aser. Therefore, if something happened to this money it is the same as if it happened to his private money, according to the Chasam Sofer.
Rav Eliashev zatsal (Sefer He’oros: Chulin 130B) points out that the Sheloh and Ketsos Hachoshen (276, 2: he brings the Sheloh) side with the Arbo’o Turei Even. They discussed whether one who inherits ma’aser money has the right to select who should receive the ma’aser funds he inherited, and they both agree (for different reasons) that he does not have this right. It seems obvious that they did not view ma’aser kesofim in the manner of the Chasam Sofer because according to the latter nothing happened when the money was set aside and the money which the heir inherited is completely his and he can certainly select the recipients of the ma’aser.
It should be noted that most poskim maintain that ma’aser kesofim is a custom – a most worthy one and one which brings great reward – but it isn’t a mitzvo from the Torah or the Rabbonon. Therefore, it would seem that both views are applicable, and it will depend on what each person meant when he set aside his ma’aser money.
If his custom is to sometimes take this money back and give other money to a poor person, then he essentially shows that he doesn’t consider his setting aside money for use as ma’aser as being a final, binding act, in which case the Chasam Sofer’s approach would be the correct one. However, if he treats the money he designated for ma’aser as if it is no longer his, then the Arbo’o Turei Even would apply.
Moreover, many people don’t designate any money as ma’aser money. They merely give tsedoko and eventually calculate how much they gave and compare this with the amount they are supposed to give. In this case, it would seem that everyone would agree that one can’t apply a loss towards ma’aser since at the time he was swindled, the money wasn’t ma’aser money, and it is just that eventually he would have counted the money he gave to the poor as being ma’aser. Since he didn’t really give it to a poor person he may not reduce his ma’aser obligation by this amount since the money was not received by a poor person. It is only in case a person made his calculations and determined that he owes money to tsedoko and gave this money in fulfillment of his ma’aser obligation that the dispute between the Arbo’o Turei Even and the Chasam Sofer would apply.
The above certainly seems to be the case if one does not fulfill the mitzvo of tsedoko when he mistakenly gives money to a fraudster. However, according to the view of the Nemukei Yosef that one does fulfill a mitzvo of tsedoko even though the money was not received by a poor person, one could argue that he fulfilled his ma’aser obligation as well.
It should be noted that if one has a doubt if he fulfilled his requirement to give ma’aser he can be lenient since the requirement to give ma’aser has the status of a custom. However, there is a well-known story about Rav Chaim Volozhin (Kesser Rosh note 124), who was very careful to give a fifth. He once had a doubt whether he already gave ma’aser and ruled for himself that since he had a doubt, he didn’t have to give. However, then his bucket and hatchet fell into a well. He computed that the value of the loss was exactly equal to the amount he had been lenient not to give. When he gave the money to tsedoko he indeed recovered the bucket and hatchet. Therefore, even though one may act leniently, Hashem does his own calculations and acts accordingly.