This is a case in which halachic intuition shouts from the outset that it must be permitted to use ma’aser money, as the money is being given with the intention of helping Reuven. Our goal here is to provide several specific reasons why this intuition is indeed correct.
We begin with a simple halacha. After a guarantor has paid the loan back in lieu of the borrower, based on the agreed terms, the borrower is required to reimburse him.[3] This halacha impacts our question in two ways. First, on the practical level, even if you look at the donors as directly excusing Shimon from his present need to pay the gemach, they are also extricating Reuven from his otherwise soon-to-be debt to Shimon. Second and perhaps more significantly, the above and other halachot are instructive in understanding the nature of the complementary obligations of a borrower and an arev when the latter is compelled to pay. It is not that the arev turns into the borrower; indeed, the borrower remains obligated to the creditor, even if he lacks the ability to pay him. Therefore, if the donors pay, they are relieving Reuven’s debt. The fact that this will, in effect, benefit Shimon greatly does not preclude the fact that their act was one of tzedaka to the needy Reuven.
Under certain circumstances, there are additional reasons to allow the donors to use their ma’aser kesafim funds. Assuming Shimon took on the responsibility of arev as a chesed (and not for some personal gain), he may have planned that if Reuven were to be unable to pay, he would count his payment of the loan as tzedaka/ma’aser, as he is permitted to do.[4] Consequently, if the donors relieve Shimon of paying, they are saving money for Shimon’s ma’aser fund, which is equivalent to a donation to it. There is no reason why one who puts aside ma’aser money cannot entrust it to a reliable person to disperse it for him. In fact, this is precisely what we do whenever we donate our money to tzedaka organizations rather than giving it directly to poor individuals. It is not halachically necessary for the disperser to be a recognized non-profit organization. Thus, even if we were to view the situation (incorrectly, in our opinion, as above) as giving money on behalf of Shimon, it could still be considered giving on behalf of Shimon’s ma’aser fund, which is as valid as giving to any other tzedaka fund.
Another way of viewing the donation as a valid use of ma’aser is to consider the donors as replacing Shimon as the arev. While one could claim that this was an unnecessary step, as Shimon does not need to be replaced, in the final analysis, the donors are paying for Reuven in the same way that Shimon had been prepared to. Just as Shimon could consider his payment on Reuven’s behalf as a legitimate tzedaka outlay (even if he originally hoped it would not come to that),[5] the new donors, who are acting in an altruistic manner at least as much as Shimon did, can also consider it tzedaka. We do not find that giving a donation that someone else was planning to make causes the actual donor to not deserve credit. In this case, it is certainly a more complete chesed if Shimon would have expected Reuven to pay him back and the donors have no such expectation.
Finally, it may be possible to view the money as a donation to the shul’s gemach, to which the money is being given directly. Admittedly, the gemach is not gaining that much, as the purpose of this gift is to let Reuven “off the hook.” However, it is not far-fetched to regard it as assisting the charitable interests of the gemach. After all, despite the requirement of having an arev, the gemach is not interested in forcing payment from the likes of Reuven if he has extreme difficulty in returning the loan, nor are they interested in taking money from the well-intentioned Shimon. A gemach is a charitable institution, not a bank. The gemach is simply concerned that if they let borrowers off too lightly, they will lose the funds to continue lending to others. The donors are assuring the gemach that Reuven’s debt can be excused because they are replenishing the gemach’s resources commensurately.
Thus, we have been able to find five halachic possible alternative constructs to support the intuitive conviction that the donors’ philanthropy should be considered a proper use of tzedaka funds. In our view, the first two arguments are the most straightforward, and the rest are just possible ways to look at the matter.