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Think Before you Think: Charity Vows by Mental Decision

One of the fascinating things about kodashim – matters pertaining to the sacrificial service of the Temple, and formerly of the Mishkan – is the power of the mind.

Whereas in other Torah matters, mental decisions and thought processes usually do not have legal significance, in the area of kodashim they figure prominently in a number of laws. For instance, the law of pigul involves nothing more than a specific improper thought on the part of the Kohen performing the sacrificial service (such as intention to eat the offering at the wrong time or in the wrong place), which can entirely invalidate the offering.

One of the primary thought-related halachic principles of kodashim is in the area of sacrificial vows. Based on the Pasuk (referring to vows), “That which emanates from your mouth you shall keep and perform,” the Gemara (Shevuos 26b) cites a Baraisa as follows: “From where do we know that this applies even to a mental decision? Therefore it says: ‘All whose heart is generous.'”

The Gemara writes that this idea, whereby a person becomes obligated in consequence of a mental decision alone, does not apply to areas outside the sacrificial service. In mundane matters only an actual word of mouth is sufficient to create a neder (vow). The reason for this is that we do not learn chullin (the mundane) from kodashim (the sanctified).

Yet, as we will see, many write that the principle applies to charity. Accordingly, a charity vow made by nothing more than a mental decision might be binding.

In the present article we discuss the issue of charity vows, and in particular those made by a mental decision alone. Are they indeed binding? Is the effect different, in any way, from a verbal vow? Can a person undo his vows? These questions, among others, are discussed below.

Vows of Fasting and Charity

Although the above-mentioned Gemara notes that the ruling validating mental decisions for vows applies specifically to kodashim, the Rosh (Taanis 1:13) cites Rabbeinu Tam that even vows relating to a voluntary fast day (nidrei taanis) can be made by thought alone. The reason is that a voluntary fast is a mitzvah, and not a mundane matter (chullin).

The Rosh compares the a vow concerning fasting to charity vows, of which he writes that the principle certainly applies. Although we do not learn mundane from holy, the Mordechai (cited in Beis Yosef, Yoreh De’ah 258) clarifies that charity is comparable to offerings, and therefore charity vows are valid even when made in thought alone.

Elsewhere, the Rosh disputes his own assertion, writing in (Shut Ha-Rosh, Kelal 13, no. 1) that “our hekdesh is but chullin, for we have not the Temple but only charity for the poor, and therefore vows are made only by word of mouth.” This seems to contradict the Rosh’s own ruling concerning vows of fasting, for which mental decisions suffice.

The Maharik (161:5-7) writes that this is indeed a contradiction. He adds that the halachah follows the ruling of the Rosh in his halachos (and not in his responsa), so that a mental vow is sufficient both for charity and for accepting a voluntary fast.

The Taz (Orach Chaim 562:8), disagrees with the Maharik and argues that there is a fundamental distinction between charity and fasting: Fasting is “entirely for the sake of Heaven”, and is therefore similar to a sacrificial offering. Charity, however, is not “entirely for the sake of Heaven,” for human benefit is also involved, and therefore a mental decision is not sufficient.

Practical Rulings for Charity Vows

In practice the Rema (Yoreh De’ah 258:13) cites both opinions with regard to charity vows, and concludes that the principle halachah is with the stringent opinion. A person is thus obligated to fulfill mental vows to charity. Even in Choshen Mishpat (212:8) we find both opinions cited by the Shulchan Aruch, the Rema adding that one must act stringently (based on Rabbeinu Tam).

Many later authorities, including the Vilna Gaon (Choshen Mishpat 212:22) are likewise stringent in this matter.

A point to stress is that the halachah only applies where a full decision was made, albeit mentally, to give charity. Where a person only considered the option of giving money to charity (whether to a specific individual or to charity in general), the halachah is not relevant (Magen Avraham 562:11; Gra 553; Mishnah Berurah 553:2).

It would seem that in general, if a person has doubts as to whether he made a concrete decision or not, it is likely that a concrete decision was not reached, so that the obligation will not apply.

Interpreting a Vow

An interesting opinion (Shut Das Eish no. 14), which is cited by the Pischei Teshuvah (Yoreh De’ah 258:15), is that a mental decision cannot initiate a vow to charity, and can only interpret an already existing vow. This means that if a person has already made a verbal vow to charity, the amount he must give can be determined in thought alone. According to this opinion, the same applies to vows concerning sacrifices.

However, most authorities clearly imply that they did not understand mental vows as being only  interpretative, but that a vow can be initiated by means of thought.

Does the Money Transfer?

Even if a mental decision to make a vow is binding, there is an important difference between an obligation undertaken in speech, and one made in thought alone.

Authorities debate the status of a vow made to charity: Does the money immediately pass into the ownership of the relevant poor person (or the charity collector), or is there only an obligation on the person making the vow to pay the money to charity?

The argument that a charity vow includes an actual legal transfer of the money is based on the concept of amiraso le-Gavohah kimsiraso le-hedyot. When it comes to kodashim, articulating a decision to donate is considered as the equivalent of actually handing something over in mundane matters. Some authorities apply this principle even to charity donations (see Nimmukei Yosef, Bava Basra 148b; Ketzos Hachoshen 212:4; Pischei Teshuvah, Choshen Mishpat 252:14).

Based on this, if a charity vow is made the money must be given to the specified charity, because the ownership of the money has in effect already been transferred. One cannot make a vow to give charity to one organization, and later change his mind and give the money to an alternative cause. However the Rema (Yoreh De’ah 258:7) rules that the principle of legal transfer by means of speech alone does not apply to charity vows. Yet, many Poskim write that in deference to stringent opinions, one should not act leniently on this point.

Does this stringency apply even to vows made in thought alone?

Although the Mordechai (Kiddushin no. 495) writes explicitly that the concept applies even to a mental decision, a number of authorities are lenient: An obligation to give charity applies, but there is no legal transfer of the money to the beneficiary (see Beis Shlomo, Vol. 2, no. 109; Achiezer Vol. 2, no. 49; Minchas Yitzchak Vol. 2, no. 3).

Even the wording “amiraso le-gavohah” appears to imply that the concept of a full legal transfer of the money applies only to a spoken word, and not to a mental decision (the Beis Yitzchak, Yoreh De’ah Vol. 2, no. 82, notes the implication). Several authorities note that this is also implied by the Rambam (Korbanos 14:12).

Changing One’s Mind

Because there is no actual transfer of the money, it follows that for a neder enacted in thought alone, the donor retains the right to change his mind concerning which charity he wishes to help. The reason for this is that his charity obligation does not apply to a specific recipient; there is only a general obligation to give charity. As long as the money has not yet been handed over, it is permitted to change one’s mind.

The first and most common application of this halachah is in a common shul setting, where a person sees a charity collector and searches his pocket to find a coin, only to find that the collector has vanished. Based on the above, although the intended coin has to be donated to charity, there is no obligation to give the money to that specific charity collector, and the money can be given to an alternative cause (see Tzedakah U-Mishpat Chap. 4, note 13).

Another interesting application of the halachah is for the traditional mi she-berach that a person receives after receiving an aliyah in shul. Although the mi she-berach is read aloud by the gabbai, the person making the donation is often silent, and it is therefore possible that the charity vow involved is considered a vow in thought rather than by word of mouth.[1]

Based on this possibility, it is permissible for the person receiving the aliyah to “change his mind” and donate the promised money to a different charity of his choice. Even if the gabbai specified a particular cause (the shul, of course!), it might be permitted to give the money to an alternative cause, based on the premise that the neder is considered a vow in thought alone (see Dovev Mesharim, loc. cit.).

In practice, if a person wants to retain his standing in shul, he is advised to fulfill his vow according to the gabbai’s declaration, and avoid getting into trouble! Still, it is important to know the strict halachah, and one cannot know where it might be of practical value.

Hataras Nedarim

In certain circumstances, it is permitted for a person to annul his charity vow by means of hataras nedarim. Even in this area there is a difference between a charity vow made by mental decision alone, and one that was spoken verbally. We will first introduce the question of when it is permitted to annul a charity vow.

In principle, pledges to charity must be fulfilled (see Shulchan Aruch, Yoreh De’ah 257:3). However, if there is a specific need (see below), one can get out of paying the charity bill by hataras nedarim. As the Tur writes: “Somebody who made a vowto charity cannot go back on his word. This, however, applies when not canceling the vow. But if he regrets the vow, and finds an appropriate petach, some say that he can retract his vow” (Yoreh De’ah 258). The Beis Yosef demonstrates that a person can perform hataras nedarim even concerning hekdesh, and this halachah is cited by the Shulchan Aruch (258:6).

There are various laws concerning the process of hataras nedarim, and some that are particular to charity vows. We will not go into this in the present article.

When Can You Annul a Charity Vow?

It is not always recommended practice to retract a charity vow.

In his glosses to the Shulchan Aruch, Rabbi Akiva Eiger writes (citing the Radbaz) that any Beis Din that annuls a charity vow should be excommunicated! Since nullifying the vow will cause a loss to the poor, a Beis Din (meaning, in this context, any group of three qualified men) must deter the donator from annulling his vow, and avoid performing the hatarah.

However, there are a number of circumstances in which this restriction will not apply:

  1. A change in the donor’s financial situation. If the person who made the neder is now in financial hardship, or if his family’s financial condition deteriorated so that they need the money, it is permitted to annul a charity vow (Maharsham, loc. cit.; Minchas Yitzchak Vol. 2, no. 32, sec. 3; Aruch Ha-Shulchan 258:23; the last two sources indicate that the severity of the Radvaz’s statement applies only to somebody who retracts out of stinginess).
  2. If the donor now wishes to give the charity money to a different cause, and not to keep it for himself (Maharsham Vol. 3, no. 119).
  3. 3.      If the donor wishes to use the money for a different mitzvah (Beis Yitzchak Yoreh De’ah Vol. 2, no. 78).

Retracting a Mental Vow

Even in this matter, there is a distinction between charity vows made in speech or in a concrete action, and those made in thought alone. For a neder initiated in a mental decision alone, it is permitted to perform hatarah even if the justifications we have mentioned are not applicable.

The reason for this is that according to many authorities an obligation of tzedakah cannot really be fully undertaken in a mental decision alone. Although we prefer to be stringent in this matter, it is permitted, when a person regrets his decision, to nullify the vow. This principle is ruled by the Minchas Yitzchak (2:39, in the name of Shut Sadeh Yitzchak 42), among others (see Beis Shlomo, Yoreh De’ah 106).

In conclusion, a person should not only think before he speaks – in the case of charity, he should even think before he thinks!

                        [1] One of the questions involved in this setting is whether one can make a neder through an agent, and if this is the intention in the classic shul scenario (meaning that the person who received the aliyah is making a pledge by means of the gabbai; see Maharsham, Vol. 5, no. 84; Erech Shai, Yoreh De’ah 203; Dovev Mesharim Vol. 1, no. 87; Shevet Ha-Levi Vol. 4, no. 125).

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