Question:
I have loaned an ex friend money (no contract or witnesses) assuming he would pay me back, a year later and I still havnt received the money back, Can this “loan count as maaser ?
Answer:
Although it is controversial if this may be done, however there are numerous poskim who say that one may count the loan as maaser. (Note: There are other poskim who say that the poor person should be told that you are taking the money of his loan from your tzedakah money, and he should agree. It is preferable to do this.)
There are however a number of instances where you would not be allowed to do this. The first one is that you can only do this if the person that you loaned the money is indeed someone that at his time would be considered poor and eligible to receive tzedakah. Even if he was eligible for tzedakah when the loan was given, but now he got rich, you would not be able to consider the forgiving of the loan to be tzedakah as he is not eligible to take it. Another condition is that you technically can get the money back from the poor person. However, if he died or if he declared bankruptcy and you won’t be able to collect the money from him, then this can’t be done. Additionally, if you already were miyayesh or gave up hope on ever receiving the money back, then you wouldn’t be able to do this.
As a side point, it is preferred to actually give the money to someone else for the poor person, and then he should give it back to you.
Sources:
Rema Y:D 257-5, See Shach ibid 12 that says that this can only be done if the lender though about forgiving the loan before he money was given. Also see Noda B’yehudah 2-199, Pischei Teshuva Y:D 257-5, Meshiv Davar 49, Igros Moshe Y:D 1-153, Tzedakah U’mishpat 5-13. On the other hand see Bais Din Shel Shlomo Y:D 1 Halachos 15, Yaskil Avdei Y:D 1-13 (2-2), Teshuvos V’hanhagos 1-560-11, Derech Emunah Chap. 8 ftnt. 104, Responsa from R’ S. Z. Auerbach zt”l, in the back of B’orach Tzedakah, B’orach Tezdakah 11-109 and ftnt. 162
