Checks Donated to Charity
After having defined a check—a definition that also applies to charity vouchers based on the same principles as checks—we can now return to the question of somebody who wrote a check to a charity collector.
As mentioned, according to the definition of a check as cash, somebody who gives a check to a charity collector cannot retract his donation. The same applies according to the above definition of a check as a promissory note—because a debt from drawer to collector has been created, the drawer can no longer retract.
What, however, would be the halachic ruling according to those authorities who view a check as no more than an instruction to the bank? Is it permitted for the donor to back out of his donation, or not?
The answer to this question hinges on the laws of nedarim outlined at the beginning of this week’s Parashah. Although with regard to a regular gift, the person giving the gift may be able (according to the above authorities) to retract his gift, all poskim would concede that after handing over a check to a charity cause, it is prohibited for the donor to take back his donation.
The reason for this is because giving the check indicates the donor’s decision to give the stipulated sum to tzedakah. After such a decision has been articulated, whether by speech or by means of a deed, a neder tzedakah (charity vow) obligates the donor to carry out his original intention (Shulchan Aruch, Yoreh Deah 258:12; see also Rema, Choshen Mishpat 243:2). This ruling is mentioned by several contemporary authorities (see Mishnah Halachos 6:122).
Indeed, even when the donation is not made to charity, but as an ordinary gift, it is prohibited for the drawer to retract (according to all definitions of a check) a check when the gift is small (relative to the giver’s wealth) to the extent that the recipient has no doubt that the giver’s promise will be fulfilled (based on Shulchan Aruch, Choshen Mishpat 204:8; see Shevet Halevi 7:222).
Unspoken Charity Vows
A more difficult question arises when the check or voucher was written and signed with the 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 Mishpat 212:8; Rema, Yoreh Deah 258:13) cites two opinions as to whether or not the obligation of a neder tzedakah applies. The consensus of authorities is that one should follow the stringent opinion. Thus, unless the donor made explicit his intention that no neder should apply until the check is handed over, he should follow his initial intention and give the donation.
There is, however, a significant practical difference between a neder enacted with speech and a neder enacted by means of a positive thought alone: the question of diverting the donation to a different charity cause.
When a neder is made with words (or otherwise articulated), many authorities maintain that the neder enacts an actual transfer of ownership to the charity in question. This is based on the rationale of amiraso legavohah kemesiraso lehedyot: Merely articulating a donation is considered equivalent to actually handing something over (see Nimmukei Yosef, 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 the specified charity, and it may not be transferred to an alternative cause.
For a neder made by means of thought alone, however, many authorities maintain that no transfer is made to the recipient—only 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 is therefore obligated to give the money to charity, he retains the right to change his mind concerning which charity he wishes to donate to (Tzedakah U’mishpat 4, note 13, based on Beis Yitzchak 2:82; see also Achiezer 2:49; Minchas Yitzchak 2:3; Beis Shlomo, Yoreh Deah 2:109).
