Halachic Analysis

Harav Yitzchok Katz Shlit”a, Chaver Bais Din Hayashar V’Hatov, Yerushalayim

Is there any instance where the Keren can be used when one knows the identity of the creditor?

השבה with the Keren would not be valid for debts to a known creditor, as it clearly would not be in his interest to have his money returned to him in this manner. However, in a case of a ספק חייב, where the obligation is questionable and unverified, the halacha is that there is no obligation to pay the creditor, even לצאת ידי שמים.

The exact parameters for this הלכהcan be found in Choshen Mishpat (75:9-10). A typical example of this would be when someone notices damage that was done to someone’s hat or car, and suspects that he may have caused it.

If it turns out that he indeed inflicted the damage, then he is a מזיק בשוגג and it is considered that he has in his possession money that is not his, but so long as the true מזיק is unknown, the other party wouldn’t want to take money that might not be theirs.

In such an instance, the Keren would be the most ideal solution, so neither party needs to worry about money that isn’t theirs. The Keren does this by making a halachic acquisition on the funds for the true owner, and then generating זכותים on their behalf until whenever the owner can be ascertained - perhaps security camera footage would emerge, or someone would come forward to admit that he was the real מזיק - but if these never came to be, the owner would be uncovered with the coming of אליהו הנביא.

Are there other possible scenarios not related to debts or damages?

Yes. Let’s take for example a שומר אבידה. Certain lost articles have a halacha of יהא מונח עד שיבוא אליהו. This is not a simple matter. It means that the one who finds the item has all the obligations of a שומר אבידה and must safeguard it for his entire life. He passes on this obligation to his children and grandchildren after him. And all the while, the item sits and collects dust, of no use to anyone.

Keren Neki Kapayim can relieve him of this obligation by performing a complete hashava to the owner, converting the item into cash that can be used to perform the mitzvah of אם כסף תלוה את עמי an infinite amount of times! What a zechus that would be for the finder, as well as the true owner of the item.

Why must the הקנאה of the funds to the owner be done specifically with cash?

As per the halachic protocol of the Keren, the money is first acquired by the trustees of Keren Neki Kapayim through either a קנין הגבהה or a קנין אגב קרקע. Only after that is it gifted with a הקנאה to the unknown נגזל or מלוה.

The reason for this is that funds deposited by credit card or check are considered אינו ברשות – not in possession – for certain halachic purposes. In order for a proper הקנאה to be executed, the מקנה must first carry out an effective physical acquisition of the money. Therefore anything other than cash is unable to be gifted via a הקנאה to a third party.

While it is true that for repaying a loan, a direct הקנאה to the מלוה would suffice, in instances of גזילה one has to make an actual מעשה השבה. This requires the physical cash to belong to the גזלן at the time of the השבה, and therefore this two-step process must be carried out.

Doesn’t the Shulchan Aruch (355:1) clearly stipulate that one needs to have דעת בעלים – awareness of the owner – at the time of the השבה?

While that is technically true, the poskim explain that the reason for this is because an owner only agrees to a השבה when he knows about it, so that he can be there to oversee it. However, when the Keren has specifically undertaken to safeguard the funds on his behalf, it would be considered as though there is דעת בעלים.

There is a well-known machlokes between the קצות החושן and the נתיבות המשפט about whether there is any חיוב השבה at all without a תביעה – a charge – from the owner. The קצות seems to hold that there is no השבה without a תביעה. Would the approach of Keren Neki Kapayim be considered an effective השבה according to the קצות?

The שלטי גבורים brought in the Shach, who paskens explicitly that there is no השבה without a תביעה. Yet, the poskim all explain that this is only because when there isn’t any תביעה, we assume that there is מחילה – forgiveness – on the part of the owner. However, when the owner doesn’t even know the identity of his debtor, there can be no assumption of a מחילה.

What happens if the borrower suddenly remembers who the creditor was, or that he doesn’t really owe any money? Can he retrieve the funds after they have already been deposited with the Keren?

Yes. When acquiring the fund, Keren Neki Kapayim specifically stipulates that it is על תנאי – conditionally. In such situations, the entire הקנאה is retroactively null and void.

Can someone who borrows from the Gemach claim that he is actually the creditor? This would then give him the שמא, and the Gemach, being a ברי of a חזקה, would have no way of obligating him to repay.

The Shach clearly states that the basis for a borrower withholding repayment of a loan because the other party owes him money is through a מיגו דאי בעי אמר פרעתי. The protocols of Keren Neki Kapayim don’t allow for this טענה, as the borrower must sign that he forfeits his right to plead פרעתי without clear proof. Thus, he would not have the credibility of the מיגוי to be able to withhold repayment.