Question-Baruch Hashem we have five children between the ages of two and eleven. My parents gave me five thousand dollars and told me it is Chanuka gelt for our children. My question is whether the money belongs to my children or to me and if it belongs to me are there any restrictions on what I am allowed to do with the money?
Answer
The issue is delicate and depends on how one understands the nature of the present your parents gave. We will discuss two possible approaches and examine the halachic ramifications of each approach.
One approach is that your parents gave you the money to give to your children meaning that instead of giving each child a thousand dollars directly they gave it to you to give to your children. If one follows this understanding then this is the same as giving money directly to a child who lives with his parents.
There is no Gemara that deals with this case directly. The Mishna (BM 12A) that is related to this issue deals with a child who finds a lost object. The Mishna writes that if an underage child finds a lost object that he does not have to return, he cannot keep it for himself but he must give it to his father. The authoritative opinion in the Gemara is that when the Mishna writes “an underage child” it does not mean a child who is under the age of thirteen as it usually does, but means a child who is supported by his parents even if he is older and even if he does not live at home. The reason the father automatically receives the object is that if the child keeps the object for himself, it could lead to friction between the child and his parents and cause the father to cease supporting his child. Therefore, the Rabbonim enacted that when such a child picks up a lost object, the father – and not the child – assumes ownership. Even though the child is capable of acquiring objects, the Rabbonim took away this right in these circumstances.
What is important for your question is that the Ran in his commentary to this section of the Gemara extends this ruling to the case of someone who gave a present to such a child. However, he limits this rule to children who are not only supported by their father but are also underage. This ruling of the Ran is cited by the Nemukei Yosef and is ruled by the Ramo (CM 270, 2).
The fact that the Ran wrote this law as an extension of the law that when a child finds a lost object the father acquires ownership, indicates that he understood that when the Rabbonim enacted the law concerning lost objects they curtailed the ability of a child who lives with his parents to acquire possessions. That is in fact the way his ruling was understood by the Machane Efraim (Zecheyo 2) and Maharshach (2, 211) and others. As a result, not only can the child not acquire lost objects, he cannot even acquire presents that are given to him.
If one understands the Ran in this manner, it is well-understood why the Nimukei Yosef rules that even if the one who gives the present is the father himself, the child does not acquire the present. This is so since the reason for the extension to presents is not because the father will get upset but because the child’s ability to acquire objects is impaired. This ruling is pointed out by R. Rabbi Akiva Eiger (notes on CM 270).
It is important to note that while the only opinion that is mentioned by the Ramo is the opinion of the Ran, there are Rishonim who disagree. The Commentary that is Attributed to the Ritva writes explicitly that the law of lost objects does not extend to presents. Furthermore, the Gra (270, 6) remains with a question why the law differentiates between a child who is underage and one who is bar mitzvah, since even a child who is underage has the legal ability to acquire objects that people give him.
The Sema (270, 2) understands the Ran in a manner that answers the question of the Gra. He explains that the difference is that when one gives a present to a child who is of age, he means to give it to the child since the child is capable of watching over it. However, if the child is a minor, it is reasonable to assume that the one who gave the present did not mean to give it to the child since it will not be safe if it is in the custody of the child. The Aruch Hashulchan (270, 4) adopted the explanation of the Sema.
We note that a major drawback with this approach is that it is not in any way indicated in the comments of the Rishonim. On the contrary, the Rishonim indicate clearly that the difference is not our understanding of the intent of the giver but in whether the child can acquire anything, and this is the understanding of many poskim, as we mentioned previously.
Furthermore, if one follows the approach of the Sema, perhaps nowadays where one can safeguard a child’s money by depositing it into an account bearing the child’s name, if a person gives a significant sum of money to a child the money should be placed in an account bearing the child’s name and not given to the parents. This is especially true in Israel where every child has an account into which the government deposits money every month. We note that this does not constitute a change of the din because the entire din is based, according to the Sema, upon our estimation (an umdeno) of the benefactor’s desire and if there is a reason to change our estimation due to changed circumstances, automatically our halachic ruling changes.
We further note that the other poskim also understood that this halacha is not rigid but subject to interpretation based on our understanding of the giver’s intent. For example, Rav Eliashiv is cited (by the Mishpat Behalacha 1, 119) as having ruled that if one gives seforim or a camera, or a watch or the like to a bar mitzva boy, even if he is not yet bar mitzva the intention is to give the present to the child, especially in light of the fact that very often the father already owns these objects.
However, it seems that this is not the correct approach in your case. Even though everything we wrote is correct, it is not pertinent to your question since what we wrote applies only in cases where the present was given with the intent that the present itself should become the child’s possession. However, in your situation, unless there are indications otherwise, and especially since your parents gave you the money as Chanuka gelt for your children, it is more likely that their intent was to give you the money to use to buy things for your children and probably to let your children know that the presents came from their grandparents.
In order to decide which understanding is appropriate, it is necessary to consider the specific context. For example, if your parents in the past gave you money to place in your child’s bank account it is more likely that this was their intention here too. However, in general it seems (to us) that your parent’s intention was to give you money to spend on your children.
If this is the correct interpretation, since the money was given to you to use for a purpose, we have to examine how restricted you are concerning how you are allowed to spend the money. Certainly, any item that you think your parents meant is fine. For example, many parents, especially if their children are struggling, would include buying shoes or clothing for their grandchildren. Even though if you hadn’t received this money you would have anyway bought shoes for your children, your parents would not mind paying for their grandchildren’s shoes. What is an issue is whether you are allowed to buy things that your parents would not have meant for you to use the money for.
The Gemara (BM 78B) cites the opinion of R. Meir, the Tanno who ruled that anyone who uses a present for a purpose other than the purpose that was intended by the giver is a thief. For example, R. Meir rules that if the local gabboim (tzedokoh officials) raised money for Purim expenses of the poor residents they cannot use the funds for a different purpose. Even a poor person who receives money to buy a shirt may not buy a suit because he is not using it for the express purpose for which it was given to him.
However, the opinion of R. Meir is disputed by the Tanno R. Gamliel. The Rif, Rosh and apparently the Rambam rule like R. Gamliel, namely, that the recipient is free to use the funds as he desires and he is not bound by the desires of the one who gave the present. According to this, you could use the money as you please and are not bound by your parents’ wishes. The rationale is simply that one who receives a present unconditionally has full ownership and can, therefore, use it as he pleases.
However, the Tur (OC 694) rules that money that was solicited expressly for distribution to the poor to assist with their Purim needs must be given to them for use on Purim and the poor are required to use the funds for their Purim expenses. The Beis Yosef in his commentary asks why the Tur ruled that way since this the position of R. Meir and the Rishonim ruled against R. Meir.
Many poskim attempt to answer the Beis Yosef’s question on the Tur and their answer affects your situation. The Chavos Yo’ir (res 232) and others answer that we don’t follow the opinion of R. Meir that one may not digress at all from the instructions of the giver, since usually the giver does not intend to be so strict. However, where it is clear that he really only intends to give the present if his wishes are carried out, one may not digress from his wishes since it is as if his present was conditioned on the fulfillment of his intentions.
According to this opinion it would not be proper for you to use the money to buy yourself clothing, for example, since it seems (to us) clear that your parents did not intend for you to do so. However, any use that you think your parents would really not mind, is permissible.
This situation is somewhat paradoxical because if your parents had intended to give the money to your children, according to the Ramo, the money would be yours and you could spend the money as you please. However, if the money was given to you there are restrictions on how you may spend the money!
In conclusion: Barring clear indications otherwise, the money was given to you to spend on your children. Therefore, you should use the money for anything you think your parents would not strongly object to since the money was given to you for a purpose.
