Rabbi Meir Orlean
Congregation Ahavas Torah was full for Maariv on the night of Shavuos. After davening, the president announced that there would be a learning program throughout the night, immediately followed by Shacharis at daybreak. “We ask your patience for a few more minutes,” he added. “The gabbai will auction off the aliyah of Aseres Hadibros for the benefit of the shul tzedakah fund.”
Hands shot up. “One thousand…” “Two thousand…” “Three thousand…”
“Three thousand going once, three thousand going twice…,” said the gabbai.
“Four thousand…,” called out Mr. Furst.
“Four thousand going once, four thousand going twice…,” said the gabbai.
“Five thousand!” called out Mr. Weiss.
“Five thousand going once, five thousand going twice, five thousand going three times,” said the gabbai. “Sold to Mr. Weiss for $5,000.”
Mr. Weiss attended the learning program, but at about 2 a.m. a wave of fatigue overcame him. “I’m going home to sleep for an hour or two,” he said to the gabbai. “I’ll be back for davening, b’ezras Hashem.”
Toward morning the congregation began davening, but Mr. Weiss had not returned. As davening progressed, the gabbai looked anxiously at Mr. Weiss’ seat. The shul finished Hallel.
“Mr. Weiss is not here,” the gabbai said to the president. “I’m going to have to give his aliyah to someone else.”
“We need the money he pledged,” said the president. “Ask the Rabbi what to do.”
The gabbai approached Rabbi Dayan. “Mr. Weiss bought Aseres Hadibros for $5,000, but he’s not here,” he said. “What should we do?”
“People are tired; there isn’t time to do another auction,” replied Rabbi Dayan. “However, quickly ask if anyone is willing to pay $5,000 for the aliyah. If not, give it to the highest bidder before Mr. Weiss for the amount he pledged.”
Just before leining the gabbai announced: “Aseres Hadibros has become available again. We are not doing another auction, but does anyone want to buy it for $5,000?”
No one raised their hand. The gabbai told Mr. Furst that he would get the aliyah for $4,000.
That afternoon, after Minchah, Mr. Weiss approached Rabbi Dayan. “Unfortunately, I was exhausted and overslept,” he said. “Could you please explain what happened this morning with the Aseres Hadibros?”
“There is a question whether to view the sale of aliyos as an actual sale of the rights to the aliyah,” replied Rabbi Dayan, “or merely as a pledge to give tzedakah, on account of which the highest bidder is honored with the aliyah.
“Even if you in fact bought the rights to the aliyah, since you were not present there is an aspect of hashavas aveidah to resell the aliyah on your behalf to recoup what is possible,” continued Rabbi Dayan. “That is why we tried to resell it this morning, but no one else was willing to pay the full amount, so we gave it to Mr. Furst to minimize the loss” (C.M. 267:24).
“Do I owe anything?” asked Mr. Weiss.
“Although the common understanding nowadays is that the pledge is conditional on receiving the aliyah in practice, since it was available but you were not present, it is not clear that you are exempt,” replied Rabbi Dayan. “Certainly, it is proper to ensure that tzedakah should not suffer a loss on account of your absence.
“The Mishnah (Arachin 27a) teaches that if a number of people bid to redeem an item consecrated to the treasury of the Beis Hamikdash, if the highest bidder retracts, the item is sold to the previous bidder and the highest bidder is responsible to cover the difference,” continued Rabbi Dayan. “Tzemech Tzedek (#72) applies this to buying aliyos. Although some disagree (Magen Avraham 154:23), it seems the best route to take is to follow this ruling where possible.
“Therefore,” concluded Rabbi Dayan, “Mr. Furst received the aliyah and should pay the $4,000 that he bid, and you should make up the $1,000 difference” (Tel Talpiyos, vol. 57 (5763), pp. 127-131).