Mr. Taub was a plumber. He did some emergency work for Benjy, amounting to $500. “I can’t pay you at the moment,” Benjy said. “Hopefully next week.”
Mr. Taub contacted Benjy the following week about payment for his work. Benjy didn’t deny the debt, but stalled in paying it.
After Mr. Taub tried a few more times, Benjy finally texted back: “I don’t have money to pay you; I also owed money as ma’aser kasafim and gave your money to tzedakah instead.”
Mr. Taub was perplexed by this response. “It’s nice that he gives money to tzedakah as ma’aser kesafim,” he thought. “However, that’s not instead of his debt to me!”
Mr. Taub tried a few more times to contact Benjy, but was unsuccessful.
“I could continue trying to get the money from Benjy,” Mr. Taub said to his wife. “However, I see that it’s going to be a hassle. Even if I sue him in beis din it will difficult to enforce payment, and will take time and money. Do you have any ideas?”
“I have a thought, although I’m not sure that it’s correct,” said Mrs. Taub. “Since Benjy says he gave the money he owes you to tzedakah, that means money of ours was already given to tzedakah. Perhaps we could simply deduct $500 from the tzedakah we give!”
“That’s an interesting idea,” said Mr. Taub. “I’ll check it out with Rabbi Dayan.”
Mr. Taub called Rabbi Dayan and related what happened. “Let’s say we have $1,000 of ma’aser kesafim money to distribute this month,” he said. “Since Benjy gave $500 of money he owed me to tzedakah, could I withhold $500, since anyway that sum of money was already given to tzedakah at our expense?”
“There are several factors to consider,” said Rabbi Dayan. “First, it is clear that Benjy cannot pay his debt to you by giving the money to tzedakah instead. Although we find that one who cheated the masses should give the money for public use as a means of atonement, one who owes someone specific must pay him.” (C.M. 366:2)
“Furthermore,” continued Rabbi Dayan, “contemporary authorities write that one who is unable to cover his debts should not give ma’aser kesafim fully, but should first pay his debts. Thus, Benjy was wrong in giving such a sum to tzedakah rather than paying his debt to you.” (Shevet Halevi 7:195)
“Nonetheless,” added Rabi Dayan, “the money Benjy gave to tzedakah was his, even though it would have been better given to you,” added Rabbi Dayan. “Thus, we cannot say your money was given to tzedakah or that the money was given on your behalf.”
“Can I claim, at least, that the tzedakah recipient is holding money that is owed to me?” asked Mr. Taub.
“There is a concept known as shi’abuda d’R. Natan, which means that if C owes B, who owes A, A has a claim against C,” replied Rabbi Dayan. “However, while Benjy should have given the money to you, as explained, the tzedakah recipient was entitled to receive it and does not owe you or Benjy.” (C.M. 86:1)
“Is there anything I can do?” asked Mr. Taub.
“If Benjy is in a very difficult financial situation and entitled to receive tzedakah, the poskim discuss whether you can withhold ma’aser money as payment of his debt to you,” answered Rabbi Dayan. “Many authorities allow you to do so if you are entitled to demand payment, but some require that you had initially lent with that intention or at least receive Benjy’s permission now.” (See Y.D. 257:5; Pischei Teshuvah 257:5; Igros Moshe Y.D. 1:153; Teshuvos v’Hanhagos 2:471; Hichos Ma’aser Kesafim 9:7-9; Tzedakah Umishpat 5:13[50])
“Thus,” concluded Rabbi Dayan, “you cannot withhold from your ma’aser kesafim the money Benjy owes you, unless he is worthy of receiving tzedakah and you notify him, as explained.”
