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 Shabbat Parashat Vaetchanan| 5763Moreshet ShaulFrom the works of Hagaon Harav Shaul Yisraeli zt”l - Executors of a Will vs. Non-profit Organization - Part II - From Chavot Binyamin siman 61
We introduced last week the case of a philanthropist who promised a non-profit organization money to build and died, and the executors of his will wanted to give the tzedaka portion of the will to other organizations. We mentioned, among other things, that there is a halachic doubt on the question if an oral pledge to tzedaka is binding. Since the other tzedaka organizations do not have possession of the money, the organization that was already promised money has precedence.
However, we should consider this last point from a different angle. Although the present court case arose after the philanthropist’s death, the doubt about the binding nature of his pledge existed as soon as he made the pledge. At that point, the philanthropist was alive and was the muchzak (in possession of his money). Thus, the matter should be decided that from a monetary perspective, the pledge was worthless. Even though, he had a halachic obligation to fulfill his neder, the personal obligation disappeared upon his death. From this perspective, then, the executors should not be bound by the pledge.
There is, though, a final factor which may play a role. According to the testimony of the head of the organization and the philanthropist’s widow, when the philanthropist was shown the building plans, he declared: “Go build it!” Such a statement is more than the pledge of a donation. It is the appointment of an agent to carry out the stated action(s). The outcome of such an authorization of agency is binding even without an act of kinyan (Shulchan Aruch, Choshen Mishpat 182), according to the agreed upon conditions. In this case, the sum of the pledge was the condition for fulfilling his instruction to build.
We must determine whether the testimony of the head of the organization is valid. Certainly, the money is not to go to his pocket and, therefore, he is not a direct party to the case. Although receiving a significant sum of money makes the organization head’s life simpler, this does not appear to create sufficient personal interest to invalidate his testimony. Were the philanthropist alive, he would need to take a Torah-level oath to contradict this testimony of one. This fact, together with other circumstantial evidence, while not sufficient to extract money in court, should not be ignored. Since the deceased himself was arguably obligated to pay during his lifetime, it is proper to initiate a p’shara (compromise) between the sides, by which the executors will pay the organization half of the disputed sum.
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