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Shabbat Parashat Devarim| 5763

Moreshet Shaul

From the works of Hagaon Harav Shaul Yisraeli zt”l - Executors of Will vs. Non-profit Organization - Part I - Excerpts from Chavot Binyamin siman 61
 A philanthropist pledged a large sum of money to a non-profit organization for a building project but died before fulfilling the pledge. He appointed executors to distribute a portion of his estate among tzedaka causes, according to their judgment. The executors decided not to honor the pledge but preferred to use that sum for other institutions. [Much of the following is a response to and partial corroboration of the decision of Rav Yisraeli’s fellow dayan, Harav Y.S. Elyashiv, shlita We shall concentrate more on the ideas behind the p’sakdin than on its specific, complex sources.]
 The philanthropist’s pledge was done without a kinyan, yet it might be binding for the following reason. There is a rule that a commitment to the Beit Hamikdash, even if oral, is binding like a full kinyan. There is an uncertainty whether this rule applies to pledges of tzedaka, which, in our case, would bind the executors to fulfill the obligation of the deceased. On questionable, financial obligations like this, we generally say hamotzi mechavero alav har’aya (he who wants to extract money from his counterpart must have a convincing evidence).
 However, the question here is whether there is a muchzak (a person with possession, from whom we need to extract money). The executors have no claim of ownership on the disputed money. It does not even appear that they have tovat hana’ah, the right to choose the recipients of the money in a manner which provides them indirect benefit. The will’s language indicates that the executors were given authority to choose causes based on their merit, not based on the executors’ benefit or desires. In the absence of a muchzak,the organization which was promised money can lay claim based on the possibility that an oral commitment to tzedaka is binding.
 A counter claim was raised that the executors, who promised funding from the estate for other organizations, were muchzakim on behalf of those organizations. Thus, the claim of the first organization is an attempt to extract money from them. However, we have a rule that one may not grab money on behalf of one creditor at the expense of other creditors (Bava Metzia 10a). Likewise here, the executors cannot be considered holding on to the money on behalf of the institutions of their choice. Even if we follow the opinion that a shaliach (agent) of a creditor may grab money on his behalf, that scenario does not apply here. Theexecutors do not claim to be personal agents of any given institution but that they want to use the money correctly. Their opinion of who deserves support should not give anyone an advantage by making it muchzak?
[We continue next week].
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This edition of Hemdat Yamim is
Dedicated to the memory of R’ Meir  ben
Yechezkel Shraga Brachfeld o.b.m.

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