Story LineCase FileRabbi Meir Orlian
The Mandels lived in a rented apartment, on a shoestring budget. Although both Mr. and Mrs. Mandel worked, they were unable to make ends meet, and their debt was steadily increasing. Recently, they had started receiving food packages from the local tzedakah organization.
One summer, the Mandels’ washing machine and refrigerator stopped working within days of each other. “How are we going to find the money to fix them?” Mrs. Mandel said to her husband worriedly. “We have to pay rent in a week, and I don’t know how we’ll cover even that!”
Mr. Mandel contacted Mr. Fixler, an appliance repairman. “How much would it cost to repair our washing machine and fridge?” he asked.
“It depends on the problem, obviously,” replied Mr. Fixler. “I would estimate that the visit and repairs would come to about $350 plus parts.”
“That’s a lot for me,” said Mr. Mandel. “I’ll have to check around.”
That evening, Mr. Mandel approached a local gabbai tzedakah. “Do you know of anyone who would be willing to help us cover the appliance repairs?” he asked.
“I’ll see what I can do,” the gabbai replied.
The gabbai’s first phone call was to Mr. Fixler. “Mr. Mandel shared his predicament with me,” he said. “He has no money for these repairs. Would you consider doing the work as a favor to him?”
“This is my parnassah,” Mr. Fixler answered, “and if I start doing favors for everybody, I’ll have no business. If I can consider the work as tzedakah and deduct it from my maaser kesafim, though, then there’s what to talk about.”
“I can’t rule for you,” said the gabbai, but I’m happy to put you in touch with Rabbi Dayan with this question.
May Mr. Fixler perform the repairs for the Mandels free of charge and deduct his charge for those repairs from his maaser kesafim?
The Gemara (Kiddushin 8a, 63a) teaches that something that has monetary value has the same status as money. Therefore, a person can purchase real estate or betroth a woman not only with money (kesef), but also with items worth money, such as a ring. Service is also considered of monetary value, but cannot be used to betroth for a technical reason (E.H. 27:1, 38:13; Aruch Hashulchan, C.M. 190:22; Pischei Choshen, Kinyanim 3:).
Accordingly, the obligation of maaser kesafim may be fulfilled not only through money, but also through goods and services that are worth money. If a professional provides a service pro bono, he may deduct the price of that service from his maaser; if the service does not have a set price, he may deduct only what he would have charged the recipient (Maaser Kesafim 7:1-2; Tzedakah U’mishpat 5:).
Maharil Diskin (Responsa #23-24) writes that even if the professional committed to working pro bono without intending to deduct the price of the work from maaser kesafim, he may still declare, before doing the job, that this will count toward his maaser.
However, if he already did the work as a favor, it is doubtful whether he is permitted to retroactively deduct the cost from maaser. That is because we have a mitzvah of gemilus chessed through action, in addition to the mitzvah of tzedakah. Therefore, if a person already helped someone without intending that the monetary value of his assistance should be counted as charity, it is considered an act of gemilus chassadim, and might not be countable toward maaser kesafim (see Taz, Y.D. 249:1.).
Harav Moshe Feinstein ruled that for a professional to count his pro bono work as maaser kesafim, he must draft a bill and then cancel it. Some explain that this is because the service must have a quantified, realistic value in order for it to be equivalent to money. Harav Shlomo Zalman Auerbach allowed only nine-tenths of the value of the work to be deducted from maaser, since one-tenth of the wages would have gone to maaser, anyway. Others, however, do not make these distinctions (Maaser Kesafim 7:; Hilchos Tzedakah, p. 104).
Ruling: Mr. Fixler may consider the repairs he performs for the Mandels as tzedakah and deduct what he would realistically charge for such work from maaser kesafim, if done with this intent.
From the BHI HotlineBroken Boundary
Q. I hired a worker to add an extension to my house while I was on vacation. When I returned, I realized that he had built approximately one foot over the boundary onto my neighbor’s property. My neighbor has yet to realize that I infringed on his space. I know that I must compensate him, but before approaching him, I would like to hear what the halachah requires in such a case so I can approach him with an appropriate offer.
A. Infringing over a property line, even a fingerbreadth, is considered a very serious transgression. If a person does so by force, he is a gazlan, and if he does so deviously, he is a ganav. In addition to these prohibitions, in Eretz Yisrael he would also transgress the prohibition of hasagas gevul (Shulchan Aruch Choshen Mishpat 376:1; see Sma 2 regarding whether stealing real estate is considered a Torah-level or rabbinic prohibition).
The passuk from which we learn that a thief must return a stolen object is: Veheishiv es hagezeilah asher gazal – he shall return the stolen object that he stole (Vayikra 5:23). This generally obligates the thief to return the actual item, not its monetary value. The only exceptions are cases in which he no longer has the item or it has changed in a way that even if he returned it, it would no longer be considered the item “asher gazal – that he stole.” In such cases, he is required to pay the value of the stolen item.
According to the letter of Torah law, then, if someone stole a beam and built it into a large building, since that beam is still intact, he would be required to dismantle the edifice and return the beam to its owner. Chazal reasoned, however, that if we insisted on this form of repayment, there is little chance that the thief would ever make any sort of restitution, so they instituted a takanah (referred to as takanas hashavim) that in cases where returning the stolen item would involve a significant financial loss, the thief may return the value of the item rather than the item itself (Choshen Mishpat 360:1).
In cases of real estate theft, Chazal did not institute this takanah; if someone stole a plot of land and built large buildings on it, he would be required to destroy the buildings and return the land to its owner (Rema ibid.).
The are several approaches to explain why Chazal did not institute this takanah for real estate, and the answer to your question depends on the reasoning behind these various approaches.
Some say that the reason the takanah does not apply is that a landgrabber assumes that it is very likely that he will have to return the property, so being forced to return it doesn’t influence his willingness to make restitution as it would for a thief who stole a beam, who might be tempted not to return it if not for the takanah (Sm”a 6; see Ba’eir Heiteiv and Nesivos 1).
Some apply similar, but slightly different logic: There is no need for this takanah because Chazal were certain that the landgrabber will eventually be brought to justice and be forced to return the land, which will remain intact. Other items can rot (Taz 360:1) or be hidden (Levush 360:1) before the thief is brought to justice, so Chazal instituted the takanah to ensure that the owner would be repaid in some form.
Others say that there actually should be a takanah for real estate as well, but Chazal penalized the perpetrator for violating the prohibition of hasagas gevul by disallowing the takanah in such cases.
Some poskim write that the latter approach applies only to someone who deliberately violated hasagas gevul, and therefore deserves to be penalized. If the hasagas gevul was unintentional, as in your case, the injunction would not apply and the takanah would enable the violator to repay the value of the land rather than return the actual land (Shu”t Mabit 3:143, cited in Pischei Teshuvah 1).
Others argue, however, that there is no takanas hashavim even if the hasagas gevul was unintentional, and the land itself must be returned (Mishneh L’Melech 6:1, also cited in Pischei Teshuvah ibid.). The Rashba (cited in Beis Yosef 376, Mechudash 1) writes that the halachos governing stolen land are more stringent because we do not force a landowner to sell part of his estate. According to these opinions, you would be required to return the actual land, and may not insist on paying its value instead.
In the next issue, we will present another line of reasoning that applies to this case.
Money mattersBrokerage Payment Due#472
Q: At what point is the brokerage or shidduch fee due?
A: Generally, agreement to the deal alone, even if the price was set, is not sufficient. The fee is due upon doing whatever is considered locally as concluding the deal. In a transaction, this is upon transferring ownership or registering the asset officially, and in a shidduch, upon marriage.
Nonetheless, everything is according to the common practice. Some write that the brokerage fee is dependent upon signing the contract, regardless of whether the ownership was transferred already or not.
There are different practices regarding shidduchim, whether the fee is due at the time of the engagement, tenna’im, or marriage. This varies with circles, and may depend on whether the shadchan’s role is just to introduce the couple or also to mediate the monetary affairs between the parents (Rama, C.M. 185:10; Responsa Halichos Yisrael #11).
The broker has no right to demand that the fee be set aside in escrow before it is due (Aruch Hashulchan 185:10).