In Parashas Vayakhel the Torah writes that the contributions to the Mishkan exceeded the required amount: “For the material they had was sufficient for all the work to make it, and too much” (Shemos 36:7). The question arises: What was done with the surplus?
The Ramban (Shemos 36:3) writes that the surplus was not great, and it was used for maintenance and repairs of the Mishkan.
The Midrash, however, suggests a different approach:
“Moshe said before the Holy, Blessed be He: We have done the work of the Mishkan; what shall be done with the surplus? He said to him: Go and build a study hall adjacent to the Mishkan. Therefore it is written: “Moshe took the tent” – this is Moshe’s study hall” (Midrash Hagadol, Shemos 36:7; see also Tanchuma Pekudei 2).
The surplus donations for the Mishkan noted this week bring us to discuss surplus money donated to charitable causes. What happens when a charity collector finds that he has been given more money than he needs for his cause? Must the money be refunded to the donors? Can it be used for an alternative purpose? Or perhaps the money should be given to the intended cause, in spite of the surplus?
We will discuss each of these three options in the present article.
Money Collected by Mistake
We begin our analysis of the issue with a somewhat different scenario to that of the Mishkan: Money that was collected mistakenly. For instance, consider a charity collector who believes that Reuven is a poor person, and raises funds for his support, only to realize that Reuven is in fact self-sufficient and requires no financial assistance. What is done with the collected funds?
A similar case is discussed by the Yerushalmi (Shekalim 2:5). Funds were raised to bury a poor person. After the money was collected, the people realized that there had been sufficient funds in the man’s estate to bury him, and the collection was unnecessary. Rav Yirmiyah ruled that this money is considered mosar tzedakah – a term we will return to later – and should therefore be given to the person’s heirs. However, Rav Idi disputed this, and ruled that because the donations were given mistakenly, they must be returned to the individual donors.
The Ra’av writes that the halachah follows the latter opinion, and this is the ruling given by Shut Ha-Rosh (32:6), as cited by the Or Zarua (Tzedakah 6) in the name of Rabbi Chaim Cohen. The Korban Ha-Edah thus writes: “The money must be returned to the donors, wherever possible” (see also Biur Ha-Gra, Yoreh De’ah 253:14, who writes that the Shulchan Aruch rules in accordance with Rav Idi).
This halachah applies to a case where a person who collected charity acted in deception and collected for a fraudulent cause. Under such circumstances the donor can sue the collector in Beis Din, and force him to return the money.
Surplus Money for the Original Cause
Where the collection was legitimate, but too much money was collected (though the cause remained relevant at the time when the donation was received), we find a ruling of an explicit Mishnah:
“Surplus money collected for captives goes to captives; surplus money collected for a specific captive goes to him; surplus money collected for the poor goes to the poor; that collected for a specific person goes to him” (Shekalim 2:5).
This halachah is ruled, verbatim, by the Shulchan Aruch (Yoreh De’ah 253:3). The reasoning appears to be that where money is collected for a specific cause – say, for an emergency operation required to save the life of a sick individual, or for the redemption of specific captives – and too much is contributed, we do not say that the money was donated mistakenly. Under such circumstances, the donation was entirely legitimate, and it therefore belongs to the intended recipient as soon as it is received (Chochmas Adam, Tzedakah 148:15).
The Maharik (no. 5) adds an important point, explaining that in general a needy cause remains needy even after the required sum has been raised. Based on this assumption, he reasons that the donors will want the intended recipient to receive the entire donation. Thus, if money is raised for a wealthy captive, it is possible that the surplus will not go to the captive, who requires no money for his day-to-day living.
A Cause that is No Longer
What is the halachah where a cause becomes irrelevant due to an unforeseen change in circumstances. For instance, consider money that was collected for the “redemption of a captive,” only for the captive to die in captivity before he could be redeemed; or money collected for a medical procedure where the patient dies – or, on a brighter note, recovers – before the expensive procedure is performed. What should be done with the money?
The Rashba (Vol. 4, no. 58) was consulted concerning a case in which money was raised for redeeming captives, but the captive died before action could be taken. He writes that this case is comparable to the concept of surplus money, for which the ruling is: “Surplus money of captives goes to captives.”
He explains that as soon as the money is received by a charity collector it becomes the property of the intended recipient (the captive). Thus, even if there is surplus money, this surplus belongs to the captive. The same applies even if the intended recipient dies: From the time the money is given to the collector, it belongs to the captive, and upon his death it goes to his heirs.
Although the Rashba writes that the answer to the question is simple, and assumes that nobody would argue against his ruling, we find several illustrious authorities contesting the ruling. Most notable of them is the Rosh (32:6). Addressing a case of a captive woman who renounced her Jewish faith before she could be redeemed, the Rosh rules that in this case the money must be returned to the donors.
The Rosh agrees that money received by a charity collector becomes the property of the intended recipient. Yet, in this case he reasons that we make an assumption concerning the intention of donors. It is certain that people who donated the money would refuse to donate if they knew that the intended recipient will renounce her faith. Thus, under the circumstances the donation is void and the money must be returned.
The Rosh reasons further that this is similar to a case in which money was collected for the burial of a goses (somebody about to die), only for the subject to recover. Clearly, those who donated money for burial assumed that the person would die, and upon the happy occasion of his recovery the money must be returned.
Halachic Ruling between the Rosh and Rashba
The Or Zaru’a (Tzedakah 7, citing Rabbi Chaim Cohen) suggests a Talmudic precedent for this assumption of the Rosh.
The Gemara (Kesubos 54b) refers to a person who wrote his fiancé a large kesuba document, only for the man to die before his marriage. The Talmudic ruling is that under the circumstances the woman does not receive the extra kesuba, because we assume the man didn’t intend to give it if the marriage was never consummated (see also Darchei Moshe, Yoreh De’ah 253:3).
This Gemara seems to support the ruling of the Rosh and indeed, the halachic ruling also follows his opinion, as we find in the Shulchan Aruch (Yoreh De’ah 253:6; Choshen Mishpat 253:16).
Based on this decision, a number of later authorities (Ketzos Ha-Choshen 207:9; Chasam Sofer, Yoreh De’ah 237) rule that if the poor subject of a collection became rich, the collected money must be returned to donors. The same will apply if the poor person refuses to accept the donations (Shut Shevet Ha-Levi Vol. 3, no. 170).
However, if the subject died and he has children who are also poor, there is room to debate whether the money must be returned, or whether the subject’s children inherit it (see the above-mentioned Ketzos Ha-Choshen).
In all of the cases above, if the money actually reaches the intended recipient before the change in circumstances, some authorities write that the recipient (or his heirs) keep the money in spite of the later change (Chasam Sofer, Choshen Mishpat 147; Yoreh De’ah 238). However, other authorities do not concur with this ruling.
Exceptions to the Rule
In spite of the rulings above, we find that it is sometimes permitted for charity collectors to redirect surplus contributions to alternative causes.
After ruling that surplus funds go to the original cause, the Shulchan Aruch adds: “If the collectors see that there is an urgent need, and they wish to redirect the donations for this need, they have the right to do so.” The Vilna Gaon suggests a source for the ruling based on a Yerushalmi, and the idea is also raised by the Rambam in his Commentary to the Mishnah (Shekalim loc. cit.; see also Rishonim to Bava Basra 8b).
This ruling is discussed by later authorities: If donated money belongs to the specific cause for which it was collected, how can charity collectors change the destination of the money?
Indeed, we find in the Rema (Yoreh De’ah 256:4) that money donated for a specific cause cannot be diverted to an alternative cause: “If the donor specified that he wishes his contribution to go to a particular cause, the collectors cannot redirect the donation, even to support Torah study.”
Based on this ruling, some authorities explain that it is only permitted to redirect funds that are given as regular and general donations, but not funds donated for a specific cause (see Shach 256:7).
Conditions for Redirecting Charity Funds
The conditions required to allow redirecting collected charity funds to alternative ends are somewhat involved, and authorities note a number of factors that can affect the decision.
One factor, which is mentioned by the Chochmas Adam (Binas Adam 148:12), is the body appointing the charity collectors. If the collectors are appointed by the needy recipients themselves (by the charity cause), it will be very difficult to permit redirection of funds which are collected specifically for the relevant cause. If, however, the collectors are appointed by the community, there is greater latitude for redirection.
Another factor, which is raised by Rabbeinu Yonah (Bava Basra 8b), is the question of who initiated the donations. If the donation was initiated by the donors themselves, it is difficult to permit the redirection of funds. However, if the community initiates the raising of funds, the matter is more flexible, because we can assume that donations were given with the understanding that the community is in charge.
A third factor, highlighted by Rabbi Chaim Ozer Grodzinsky (Achiezer Vol. 2, no. 23), is the discretion of the collectors. If the collectors have no discretion concerning where to direct the donations, it is clear that donors intended the specific causes that were noted. However, where collectors have discretion of how much to donate and to which cause, the funds can be redirected (even from Europe to Jerusalem, as in the case he discussed).
The issues of redirecting surplus funds are involved and complex, and for practical purposes a competent authority should always be consulted.