General Introduction and Foundations of the Laws of Charity

Yeruham Yeshiva – 2003

A. Objectives of the study

1. To understand and know that charity is a halakhic / of Jewish law topic, and not only a moral and philosophical one. To try to understand the connection between these planes.
2. To awaken us to the existential aspects (the halakhic / of Jewish law and the philosophical) that this topic contains. Therefore, during the course of study one should pay attention throughout to current-day aspects of the Jewish laws (which do not always appear as such at first glance).

We will want to know, for example, how to act when a person approaches us to ask for charity: should we direct him to a public fund? How much should we give him? Are we obligated to give at all? Is it permitted (or necessary) to check his credibility? And so on.

We will also want to know when one is obligated to give charity, and what the status is of money that we decided (vowed) to give. What is the status of money in a charity fund, and who is fit to be a charity trustee? Under what circumstances must a fund and a soup kitchen be established, and who manages it and how?

An interesting relationship constantly arises between the obligation of the public and the obligation of the individual, an aspect that requires renewed discussion in our current situation, with the governmental structure of a state instead of (?) a structure of communities. Is an orderly national insurance system preferable, or voluntary donations? What are the desirable proportions? Does the existence of national insurance exempt us from the halakhic / of Jewish law obligations of charity, and from which of them? Is it permitted for the State of Israel to receive American aid, or other aid, and under what circumstances?

Must one set aside a tithe of money, and from what? What should we do with tithe money, and in general with charity money? What are the priorities for giving charity? Is it permitted to make a living from charity, and under what circumstances (to be married scholars in a kollel)?

And many more such topics that will arise during the study.

B. The structure of the study over time

The study will be based on the Tur and Shulchan Arukh, Yoreh De’ah, from siman 247 to siman 259 (there are photocopied booklets). The parallel Maimonides text that will accompany us is in the laws of gifts to the poor, chapters 7-10. These simanim and chapters deal only with the laws of charity; because of lack of time we will apparently not manage to touch on the other gifts to the poor.

For each topic it is recommended to go through the entire Shulchan Arukh, afterward the Tur and Shulchan Arukh with commentaries, and the parallel Maimonides passage with commentaries point by point. Regarding the Talmudic topics / passages in the Talmud / Talmudic text, it is recommended at the second stage to go through them according to the points under discussion, and in a quick skim. Whoever manages to go through the relevant pages in Bava Batra (7b-11a) independently will be blessed.

Average pace – one siman of Tur and Shulchan Arukh per week.

Depth and expansion according to the time that remains. It is recommended to do this according to my accompaniment sheets that will be distributed on each topic (usually a siman in the Tur and Shulchan Arukh is a topic). These sheets are a substitute for a daily lesson. It is preferable to follow them, and only afterward complete from other sources (the recommended books below, and commentators on the Talmudic topics / passages in the Talmud / Talmudic text). The sheets are intended to expand central topics, both from an analytical perspective and from an existential perspective, and sometimes to raise points for thought. The sheets also contain clarifying notes that will help with the ongoing study.

With God’s help, on average one lesson per week will be given (apparently on Wednesday after Mincha), which will usually expand on one of the main topics.

One should study purposefully and not linger pointlessly, so as not to accumulate delay. The goal is to advance on a uniform front, and to finish as much as possible the matters and laws of charity by the end of the term.

C. Recommended books

Arukh HaShulchan Yoreh De’ah in these simanim

Einayim LaMishpat on Bava Batra (vol. 3 on pages 7-11)

Derekh Emunah on Maimonides’ laws of gifts to the poor (vol. 1). One should note that the book contains several commentaries: Bi’ur Halakhah, Tziyun Halakhah and Derekh Emunah. References in the accompaniment sheets will sometimes refer directly to them.

Charity and Law (by Rabbi Bloei, author of “Pitchei Hoshen”). A detailed halakhic / of Jewish law book with references and important discussions, in the author’s known and important style in his other books. One copy was purchased for the yeshiva library.

We Shall Be Sanctified Through Charity (by Rabbi Bar-Ilan). A book that deals with Jewish law and a certain analytical dimension. Very well organized, and recommended to consult when needed. One copy was purchased for the yeshiva library.

Tithe of Money (by Rabbi Abraham Mordechai Albert). Deals mainly with the obligation of the tithe, but also adds more on matters of charity, and especially the required measures of charity.

The collection “From the House of Levi” (by Rabbi Wosner), volume 11, Nisan 5757, in the section of halakhic rulings. A summary of the laws of charity in general, and especially in light of what is written in the book Shibolei HaLeket.

Igrot Moshe, Yoreh De’ah (see there vol. 1 from siman 143 onward, and perhaps also in the other volumes).

Maimonides, Frankel edition with the index on the laws of gifts to the poor.

D. The general arrangement of the laws in the Tur and Shulchan Arukh and in Maimonides

The Tur and Shulchan Arukh begin with the question from whom charity is taken and who is obligated to give. Maimonides begins with the question to whom and how much one gives.

Maimonides divides his laws into two chapters dealing with direct charity to the poor (including a discussion of charity as a vow), one chapter dealing with charity given to trustees, and another chapter on general and philosophical principles in charity.

The Tur and Shulchan Arukh continue with the question how much one is obligated to give and how much it is proper to give to each type of needy person. After that they discuss who is fit to receive. Then they deal with trustees, and finally with charity as a vow.

E. The concept of “charity”

See Guide for the Perplexed, part 3, chapter 53. Check!

The concept of “charity,” which refers to giving to another (usually a poor person), calls for explanation. Why was this concept singled out specifically for these commandments.[1] A “righteous person” is one who fulfills his Creator’s will in general, and the concept of “charity” points to a special connection between charity and righteousness. The relation to the concept of “justice” must also be examined.

In the Bible, the root tzedek always appears in the context of judgment and justice, and the term “charity” in the context of giving to one in need is renewed mainly in the words of the Sages. Perhaps the source for this is Isaiah 58:7, where in a rare way the prophet refers to giving charity (usually the prophets warn against oppressing the poor, and not against failure to give charity), and later in his words the term “your righteousness” arises in that context: “Is it not to share your bread with the hungry, and bring the poor who are cast out into your house? When you see the naked, that you cover him, and that you not hide yourself from your own flesh. Then your light shall break forth like the dawn and your healing shall spring forth speedily, and your righteousness shall go before you; the glory of the Lord shall gather you in.”

It may be that the explanation for this terminology is that a righteous person goes beyond the letter of the law. There is here a commandment to give from what is yours: the perception is specifically that the money is yours, and nevertheless you are obligated to give. Charity and acts of kindness belong to the family of kindness, beyond strict law (see below, a discussion of the relation between them).

The verse in the Torah where the term “justice” appears in the most intensive form is in the portion of Kedoshim (Leviticus 19:36): “Just balances, just weights, a just ephah, and a just hin shall you have.” And in the Sifra there, section 87, one must tilt by a handbreadth and one-tenth for liquids and one-twentieth for dry goods. And in the portion of Ki Teitzei it says, “A perfect and just weight shall you have,” and the Malbim explained there on Leviticus, section 86, that the difference between a perfect weight and a just weight is that a perfect weight is according to the law, whereas justice is beyond the letter of the law.

In light of this one must examine all appearances of the paired concepts “justice and truth,” similar to “kindness and truth,” in the same pattern. The combination of truth and peace is justice. Just as kindness and strength make beauty. “Justice shall walk before Him”—justice is not only before the law but also after it (a more complete form of it. “Jerusalem was destroyed only because they based their rulings on Torah law”).

However, there are places where the term “justice” is used specifically to denote precision, that is, strict law. For example, “With justice shall you judge your fellow” teaches not to incline judgment to any side. Two possible directions of explanation:

1. As is known in the holy tongue, opposite terms may use the same root. Indeed, the Sages expound on “With justice shall you judge your fellow” that one must not tilt judgment in favor of either the poor or the honored person. This command negates the initial thought of inclining beyond the letter of the law in cases where it might seem reasonable to do so. Therefore the term “justice” is used here to command preserving the law, to exclude the initial thought of acting with the opposite kind of “justice” (beyond the letter of the law).
2. Beyond this, it seems that the exposition generally adds a tone of beyond the letter of the law to the interpretation of the term “justice.” For example, regarding weights we saw that the Sages expound it as requiring one to tilt the scale in favor of the buyer. Similarly, “With justice shall you judge your fellow” is expounded by the Sages as a command to judge favorably.

See all this in Sefer HaChinukh, commandment 235.

And the Ari explained that “justice” is judgment (for the left leg of the letter kuf is long and extends outward), whereas “charity” is the sweetening of judgment into kindness (a reversal, or the addition that changes the kuf into a heh whose two legs are of equal length). This fits very well with what was explained above (although not necessarily with the terms justice and charity specifically, the two terms are nevertheless connected to the root tzedek).

And see Maharal, Netiv HaTzedakah, ch. 4, s.v. “Rabbi Eliezer said,” who wrote that charity is beyond the letter of the law.

F. The commandments from the Torah

The main section on charity is found in Deuteronomy chapter 15, after the commandments of the tithe and the Sabbatical year, and before the law of the Hebrew slave.

The view of Maimonides and those aligned with him is that in matters of charity there is one prohibition (232) and one positive commandment (195). In the definitions at the beginning of the laws of gifts to the poor, Maimonides writes: it is a commandment to give charity according to one’s means, and there is a prohibition against hardening one’s heart toward the poor person. At the beginning of chapter 7 and in the Sefer HaMitzvot there, Maimonides brings many additional verses, in order to show the greatness of this commandment and prohibition (see root 9). Some have written that each of the verses brought by Maimonides teaches one of the laws of charity, but this is not the place.

In defining the prohibition, Maimonides adds an interesting point: “And this is a warning against acquiring the trait of stinginess and cruelty that prevents one from doing what is proper.” It should be noted that regarding the positive commandment Maimonides does not speak about character traits, but about strengthening the weak in practice. The prohibition too, at the beginning of the laws of gifts to the poor, is formulated as not hardening the heart, not as a prohibition against failing to give. It would seem from Maimonides that the positive commandment is simply to give charity, whereas the prohibition is part of a command of working on one’s character.

A possible practical difference is that one who did not give to a poor person because of compulsion is not considered to have violated the prohibition under compulsion. He does not violate it at all, since he did not harden his heart. On the other hand, it is clear that a desire to give, even though the Holy One, blessed be He, joins good intention to deed, is not considered fulfillment of the commandment itself.

[[There is a very interesting possibility here of understanding many prohibitions in the Torah that duplicate positive commandments. Perhaps they deal with duties of the heart and not duties of the limbs. Saadia Gaon, for example, does not count such prohibitions at all and treats them like duplicate positive commandments (see in Rabbi Yerucham Fischel Perla’s introduction, root 6), whereas here he counts a prohibition (86) and a positive commandment (25). Perhaps the explanation is that in his view only here is the prohibition about traits.

And indeed see at the beginning of root 9, where Maimonides begins by saying that there are different kinds of commands: regarding opinions, thoughts, actions, and so on. It is not clear why this introduction is necessary for what is said in that root. Apparently his intention is that a command regarding an opinion and a command regarding an action are both counted, despite the apparent duplication. Here, however, this is a prohibition and a positive commandment, and in any case it is counted in accordance with root 6 there, but this is not the place to expand.]]

And see the language of Maimonides in chapter 7, law 2: “Whoever sees a poor person asking and turns his eyes away…” From this it would seem that turning away from a poor person who is not asking does not involve a prohibition. At first glance, this is an asymmetry between the positive commandment and the prohibition, and several commentators noted this (see Frankel’s index to chapter 7, law 2). However, in Sefer HaMitzvot, prohibition 232, there is no definition limiting it specifically to a poor person who asks.

According to what we said, this fits very well: when there is no request, it is simply not considered turning away one’s eyes, and therefore one does not violate the prohibition. By contrast, one who does not give certainly violates the positive commandment. That is, the asymmetry does appear also in Maimonides’ Sefer HaMitzvot, in that he defines the prohibition as duties of the heart and the positive commandment as duties of the limbs. All this will, with God’s help, be explained in simanim 249-251.

This also fits very well with the Talmud in Bava Batra 9b in the case of Jeremiah, who asked that they be made to stumble over poor people who were not worthy, where it implies that charity is a law in the hefza, that is, in repairing reality; whereas on page 10a regarding Rabbi Akiva and Turnus Rufus, it implies that charity is a law in the gavra (the giver).[2] One who examines carefully there will see that on page 9 the Talmud speaks about the reward of charity, which of course is given for the positive commandment, whereas on page 10 the Talmud says that charity was given to us to save us from the punishment of Gehenna, which of course is given for the prohibition. If so, it is proven that the positive commandment is the very real act of giving, whereas the prohibition concerns the person, exactly as we explained in Maimonides (and later in Sefer Mitzvot Katan).

Now, in Sefer Mitzvot Katan, commandment 20, he explains the double expression “do not harden” and “do not shut” as follows: “do not shut” is refraining from giving out of fear of the giver’s own poverty (miserliness), and “do not harden” is “ideological” refusal to give: “Why should we help so-and-so? If he wanted, he could earn more than he needs.” And Sefer Mitzvot Katan concludes: “Scripture therefore says ‘do not harden’—that even if you give from this mindset, you still violate ‘do not harden.’”

This conclusion is apparently a striking novelty: even if in practice he does give the charity, if he thinks this way he violates the prohibition of “do not harden.” This is exactly as we said in Maimonides, that the prohibition belongs to duties of the heart. It should be noted that Sefer Mitzvot Katan does not use the same language regarding “do not shut,” and it requires investigation whether there too this is a duty of the heart, or whether miserliness is a prohibition on actual failure to give. From the fact that Sefer Mitzvot Katan does not distinguish between the prohibitions on the level of action versus thought, it appears that in both cases he understands the prohibition as applying to thought. If so, this is exactly like Maimonides.

However, according to Sefer Mitzvot Katan there is an additional prohibition (21): “‘And let your heart not be grieved when you give to him,’ meaning: one should not feel pain after giving, but should rejoice.” Nachmanides also wrote this in his addition 17 to the prohibitions. Yet in Nachmanides there it appears that this is a command concerning faith / belief, that the Holy One, blessed be He, promised that we will not lose by giving charity, and that is what the prohibition addresses.

In Maimonides, however, it appears that these are two levels: in chapter 10, law 4, he discusses one who gives with a bad countenance and his face cast down to the ground, in which case even if he gave a thousand gold pieces he lost his merit and destroyed it. In law 14 Maimonides speaks about one who gives sadly, and here he fulfilled the commandment, but on a lower level. This distinction recalls Sefer Mitzvot Katan, who distinguishes between “do not shut,” which is one who gives sadly (because he hates to part with his money), and “do not harden,” which is one who gives with a bad countenance (because he thinks the poor person can support himself). If so, the law too is exactly like Sefer Mitzvot Katan: with a bad countenance he loses his merit, whereas with pain it is charity on a lower level. Perhaps this also explains why Sefer Mitzvot Katan changed his wording; it requires investigation.

And see the Vilna Gaon on siman 249, se’if katan 6, who explained that one who gives with an angry and bad expression violates “and let your heart not be grieved.” This is not like Sefer Mitzvot Katan’s interpretation of this commandment.

According to those who count the commandments and hold that there is here an actual prohibition, one must discuss whether one has not lost the merit entirely (a commandment that comes through a transgression?). If our words regarding Maimonides are correct—that he agrees with Sefer Mitzvot Katan and there is a prohibition even for one who gives sadly, and there he did not lose his merit—it would seem that this is not a commandment that comes through a transgression. If so, even one who gives with a bad expression did not lose his merit because of a commandment that comes through a transgression, but apparently because this is simply not charity at all. That is, there is a mental dimension (duties of the heart) also in the positive commandments, and not only in the prohibition. And see Sefer HaChinukh, commandment 479, who defined the commandment: “to do charity with one who needs it with joy and good-heartedness.” It would seem that one who gives sadly did not fulfill a commandment at all, and in the plain sense this is unlike Maimonides (and in Sefer HaChinukh this appears to be the definition of the positive commandment itself, not only because of the prohibition as we suggested above).

Maimonides, when speaking about redeeming captives (chapter 8, law 10), also brings the commandment “And you shall love your fellow as yourself.” One must consider why this commandment does not relate to every situation of charity. In the simple sense it seems that charity too includes “love your fellow,” no less than all those listed in the laws of mourning (at the beginning of chapter 14). Perhaps one can say, as we said in the lessons on the roots, that the Torah commandment is duties of the heart (to love one’s fellow), while the duties of the limbs listed there are rabbinic. If so, charity too has a dimension of “love your fellow,” but this concerns only the mental aspect. Here Maimonides is defining the duties of the limbs of charity. Perhaps even more than that: love is not necessarily giving; apparently each can exist without the other, and therefore these are two commandments.

Another rabbinic commandment is “Let not the crushed one return ashamed.” See siman 249, law 4 in the Rema, and my notes to siman 250, where it will be explained.

There is a discussion why one is not required to spend all his money on charity in order not to violate a Torah prohibition. See Charity and Law, chapter 1, note 23 (and my notes to siman 249). Maharil Diskin, vol. 1, siman 24, wrote that the reason one is not required to spend all his money on charity is that when there is no positive commandment there is no prohibition either (see a similar principle in Nachmanides on Kiddushin 34 regarding the commandment of a parapet, in the explanation of Divrei Yechezkel siman 15, se’if katan 18). Another answer is in Amudei Mishpat Batei Dinim, siman 19, in the third “and behold,” that there is no point in giving charity to a poor person only to become needy oneself. Other authors wrote similarly.

However, according to what we said, Maharil’s answer does not stand, since the prohibition is not merely parallel to the positive commandment, and there are differences between them. According to us, however, it seems that this question is not difficult at all, for the prohibition applies only when one hardens his heart, not whenever one does not give. According to this, there is no need at all to give all one’s money, because if one did not give not out of hardening his heart, he did not violate the prohibition at all, and for a positive commandment one is not obligated to spend all one’s money.

And see in Igrot Moshe, Yoreh De’ah, vol. 1, end of siman 145, who wrote to infer from Maimonides’ language in chapter 7, law 1, “if the hand of the giver can afford it,” that when he does not have enough to give there is no commandment at all, not merely that he is considered compelled. This is by the rule “your life takes precedence,” and this will be explained in my notes to simanim 248-249 and lesson 2. According to this, in such a case there is no positive commandment either, and not only is the prohibition canceled. This is a practical difference between the answers of Amudei Mishpat and Igrot Moshe on the one hand, and Maharil Diskin and ours on the other.

G. The relation between acts of kindness and charity (see in the book Ahavat Chesed by the author of Chafetz Chaim)

See Guide for the Perplexed, part 3, chapter 53. Check!

The main discussion is in the Talmud, Sukkah 49b:

Rabbi Elazar said: acts of kindness are greater than charity, as it is said, “Sow for yourselves for charity, reap according to kindness”… And Rabbi Elazar said: charity is repaid only according to the kindness within it [and Rashi explained: the giving is the charity and the effort is the kindness, for example bringing it to his house or making an effort so that it will benefit him greatly, such as giving him baked bread or clothing to wear or money at a time when produce is available, so that he will not waste his money. That is, he gives his heart and mind to the good of the poor person] … Our Rabbis taught: in three matters acts of kindness are greater than charity: charity is with one’s money, while acts of kindness are both with one’s body and with one’s money. Charity is for the poor, acts of kindness are both for the poor and for the rich. Charity is for the living, acts of kindness are both for the living and for the dead. See there the whole passage.

Here, apparently, are found the basic definitions of the differences between charity and kindness. See Ahavat Chesed, vol. 2, chapter 17, where he distinguished between different cases, for sometimes charity is preferable.

Within the framework of Jewish law this matter is very unclear, and it is not at all clear whether kindness and charity are two different concepts, and what their precise definitions are. In the simple sense, charity is giving money to one in need, and kindness is exertion on behalf of another (not necessarily a poor person). However, exertion is equivalent to money for several matters, and moreover we find kindness also in the sense of a loan to one who needs it (not necessarily a poor person, and he elaborated on this in Ahavat Chesed), so it requires investigation what the common denominator is between these two, and why charity is not included in this.

It seems that a loan is a situation in which my money works for another (and about this itself there is a prohibition of interest—to benefit from the fact that my money works for me, and therefore the Torah linked the two to one another), and kindness with one’s body is a situation in which one’s body works for another. That is the common denominator of both (to subject oneself and one’s money to another), and all of it is acts of kindness. Still, this remains difficult, for it is money-equivalent (and therefore there is the concept of interest and the concept of wages). Maharil Diskin (vol. 1, siman 24, in the margin) tended to say that only exertion that is not money-equivalent is in the category of acts of kindness. A loan is not money-equivalent, for the poor person is supposed to return the money. According to this, however, it is somewhat difficult why acts of kindness are preferable to charity.

Maimonides counts separately a commandment to lend to a poor person. Some, however, explained (see Derekh Emunah, chapter 10, se’if katan 32) that this is the commandment of lending in general (to poor and rich alike, to one whose means have collapsed and who is about to become poor), and this is explicit in the Tur and Shulchan Arukh. Regarding a loan to a poor person, they explained that Maimonides held it is included in the commandment of charity. Nachmanides certainly counted them as two commandments (see Ahavat Chesed, vol. 2, chapter 21). However, in the plain sense of Maimonides he appears to agree with Nachmanides. See the laws of lender and borrower, chapter 1, laws 1-2, the Frankel index there, and the book HaTzvi VeHaTzedek, siman 16.

A practical difference from all this concerns changing charity funds into loans and vice versa. Another practical difference relates to the doubt of Maharik in root 133 (brought in Shakh, Choshen Mishpat siman 243, se’if katan 1): whether a promise to exert oneself on behalf of a poor person is considered a vow like charity (and some explained the doubt differently).

So much for the matter of loans and exertion. Matters of acts of kindness with one’s body appear at the beginning of chapter 14 of the laws of mourning as part of the commandment “And you shall love your fellow as yourself” (see above).

From all this it emerges that the concept “kindness,” unlike charity, is not a distinct halakhic / of Jewish law concept. It is found in several commandments, and in itself it is a mode of human activity and a character tendency, not a halakhic / of Jewish law concept.

Regarding the halakhic / of Jewish law discussion of the relationship between charity and kindness, see my notes to the end of siman 249 (on Maimonides chapter 10, law 7, and in Frankel and Derekh Emunah there). And see Maharil Diskin, vol. 1, siman 24, in what he wrote in the margin, and in Charity and Law chapter 5 note 43, chapter 4 note 91, and chapter 1 note 8.

H. For its own sake in charity

The Talmud in Bava Batra 10b (see also Pesachim 8a and Rosh Hashanah 4a) says: “One who says, ‘This sela is for charity so that my sons may live, and so that I may merit through it the life of the World to Come,’ behold he is a completely righteous person (and Rabbenu Hananel on Rosh Hashanah brought the version ‘behold this is complete charity’).”

See the commentators, and Einayim LaMishpat on Bava Batra 10b s.v. “This sela is for charity,” and my notes to siman 247 (section 4).

In Midrash Shmuel on Avot 1:3, he brought two interpretations that dispute whether this principle is true only regarding charity or regarding all the commandments. If indeed it is true only regarding charity, perhaps the explanation is that in charity the commandment is for the poor person, and therefore even if the motive is not perfect, the benefit was in the end achieved. This is not so in commandments between man and God, where the main thing is the manner of fulfillment (although even according to this, the principle would not apply only to charity but to all commandments between one person and another). See below whether charity is for the poor person or for the giver.

One may also say that since the money is his, and he gives it to another, he has the right to set a condition on the gift that he or his son will merit the World to Come, or that his son will live. It stands to reason that this applies only to charity beyond what he is required to give by law. Only an existential commandment that is done for some benefit is a complete commandment.

There is also more to discuss regarding intention and action in charity and in commandments generally: see the end of the first chapter of Bava Kamma, “He caused them to stumble with unworthy poor people,” and Rabbi Elchanan Wasserman’s article on repentance (in Kovetz Ma’amarim). Also Rashi on Deuteronomy 24:19, that even if one lost a sela and a poor person found it, he receives reward.

The statement “you shall surely tithe – tithe so that you will become wealthy” also hints at a similar principle. It would, however, have been possible to interpret it as merely a promise. See also Bava Batra 10b above: “An objection was raised: what should a person do so that he will have male children? Rabbi Eliezer says: he should scatter his money to the poor.” It implies that this is a preferred practice from the outset.

In the simple sense, giving not for its own sake is not interpreted as giving on condition—that if the Holy One, blessed be He, does not give him what he wants, the gift is not valid—but rather as giving accompanied by a request to the Holy One, blessed be He, where the request itself is legitimate and proper (to live, or to merit the World to Come, or to merit children, and so on). Regarding the relation to the permission to test the Holy One, blessed be He, see my notes to siman 247, section 4.

This interpretation is compelled by the Talmud’s distinction between gentiles and Jews, that only regarding Jews do we say that one who gives on condition that his son live is a completely righteous person. Rashi explained (for example on Rosh Hashanah) that this is because if the gentiles’ son does not live they will regret the giving, unlike the Jew. According to this, there is indeed a complete act of service of God here. See also the commentators to the Mishnah, Avot 1:3, “Do not be like servants who serve the master in order to receive a reward.”

I. A blessing over giving charity

See HaTzvi VeHaTzedek, siman 14.

In the book Haredim it is brought that Rabbi Eliyahu would recite a blessing over all commandments, even when he would give charity or lend to a poor person. His source is the Jerusalem Talmud (at the beginning of “How does one recite blessings”), which derived an analogy between Torah and commandments, that all require a blessing. By contrast, Rashba, siman 18, wrote that one does not recite a blessing over charity because it depends on another person (perhaps he will not agree to receive), and see also Ketzot HaHoshen siman 97, se’if katan 1. See also Kesef Mishneh on blessings, chapter 11, law 2, who wrote that one does not recite a blessing over charity because it is a commandment between one person and another.

They objected to Rashba from the aforementioned Jerusalem Talmud, and also from the blessing over betrothal, which is likewise a commandment that depends on another (the woman).

The Hatam Sofer, Orach Chaim siman 54, wrote that Rashba’s intent is only regarding commandments intended for the other person, not every commandment that depends on another person. The reason is that in commandments intended for the other person, if he does not agree there is no commandment at all. But in commandments like betrothal (which indeed depend on the will of the other person, but are not intended for her, for the commandment of procreation is incumbent on the husband), there one recites a blessing even according to Rashba. This is also precise in the language of Kesef Mishneh and Maimonides above, for regarding commandments between man and God they did not distinguish between commandments that depend on another person and those that do not.[3]

This also explains well why Maimonides brought here the law that one must recite the blessing before performing them, for according to Rashba, if one may bless after performing them, one could bless also over commandments that depend on another and are intended for that other.

However, the Rema in Orach Chaim at the end of siman 695 wrote that one fulfills the obligation of sending portions even if the other person refuses to receive it. The reason was explained as being that he showed affection, and that is the essence of the commandment. According to this, in Charity and Law (chapter 1, law 27) it was written that regarding charity it appears one does not fulfill the obligation (and in note 78 he added that it appears that even with gifts to the poor one does not fulfill it). However, this depends on whether charity is for the giver or for the recipient (see below), though according to the Hatam Sofer one must in any case assume that the commandment is for the recipient.

It is somewhat difficult why one should not recite a blessing over giving to a fund (and in Charity and Law, chapter 1, beginning of note 1, he mentioned that Orchot Chaim siman 92 discussed this at length). Another difficulty is what Maimonides wrote in chapter 7, law 9 (and Shulchan Arukh 253:9), that one who does not wish to receive is tricked into taking it, which implies that there is a commandment even when he does not want to receive. According to the Hatam Sofer’s explanation, one cannot say that it depends on another because perhaps the trick will fail, for that would make it similar to all commandments that depend on others but are not intended for them, over which one does recite a blessing.

According to what we wrote in the notes to siman 253, law 9, we suggested that perhaps with a Torah scholar this is not done, and if so not in every case is there a commandment, and therefore they did not distinguish regarding a blessing.

And Avudraham wrote that one does not recite blessings over commandments whose non-fulfillment is the violation of a prohibition. According to this one could say the same also regarding charity. However, according to what we said regarding the nature of the prohibition in Maimonides, it does not seem one can say this. Also, Maimonides himself apparently disagrees with Avudraham, for he did bring a blessing over a parapet (in several laws in chapter 11 of blessings).

I have seen that some wrote (and I was shown that this is a siman in the book Seridei Esh) that one does not recite a blessing over a commandment obligated by reason, for we would do it even without “who commanded us.” It requires investigation whether the commandment of charity is rational or not (strict capitalists claim that it is not, and socialists certainly hold that it is a rational commandment, and some of them hold that there is no private property at all; on this see below. Thus we have a practical halakhic / of Jewish law difference between socialism and capitalism: whether one recites a blessing over the commandment of charity).

J. Points in the philosophy of charity

1. The commandment is for the recipient or for the giver

See our notes above during the lesson (especially in section F in the distinction between the positive commandment and the prohibition).

Rabbi Akiva in Leviticus Rabbah 34: “More than the householder does for the poor person, the poor person does for the householder.” So too it seems clear from Rabbi Akiva’s view in his debate with Turnus Rufus (Bava Batra 10a. See also my article for Purim 5761 in “From Wilderness to Gift”). However, from there one might understand that even if the goal is to save us from the judgment of Gehenna, now that the world is structured this way, charity is for the poor person, and without charity he may even die (and see on this in my notes to siman 247, section 6).

In Einayim LaMishpat on Bava Batra 9a, letter 8, he made this a dispute among medieval authorities (Rishonim). Perhaps the differing order of the laws in Maimonides and the Shulchan Arukh points to this as well (for Maimonides begins with the laws determining who receives charity and how much he receives, whereas the Tur and Shulchan Arukh began with the laws determining who gives charity and how much he gives. See above in this lesson, section D).

The highest level in chapter 10 of Maimonides is preventing dependence through a loan, not giving to one already in need. More generally, several of the hierarchies there indicate that charity is for the needy person (see also the hierarchy in Maimonides chapter 10, laws 9 and 10, which implies this, for he wrote there that it is preferable that the recipient not know than that the giver not know. Of course, this can be rejected). It should be noted that these hierarchies appear both in Maimonides and in the Tur and Shulchan Arukh.

Regarding this inquiry, see also my notes in siman 253 concerning one who has two hundred minus a dinar, to whom one gives even a thousand.

See further my notes to siman 254 on taking for the synagogue (in the name of Hagahot Ashri), where we saw that charity is literally like a sacrifice. Likewise in Sukkah 49b: “Great is one who does charity more than all the sacrifices.” This would apparently support the understanding that charity is for the giver.

Also from the discussion of giving charity not for its own sake (one who wants to have male children, and on condition that my son live and that I merit the World to Come), which is considered a complete commandment, it would apparently seem that the commandment is for the giver (see above, and this depends on the various explanations there).

2. Giving out of compassion or as an obligation

One must discuss whether the giving should be out of compassion for the poor person (in which case one might say this is giving for myself, in order to relieve pangs of conscience and feelings of pity), or like one compelled by a demon, as one who is commanded and acts. See my notes to siman 247, section 5, where we saw that compassion is a sign of the descendants of Abraham our father. For a similar issue regarding Torah study, see the introduction to Aglei Tal.

3. Whose money is it?

At times there are formulations that tie the obligation to give charity to the perception that the money belongs to the Holy One, blessed be He, and not to us. See, for example, the Tur, siman 247, end of paragraph 3, who says this explicitly, that the money is a deposit in our hands.

On this matter see Bava Batra 10a, in Rashi s.v. “He who is gracious to the poor lends to the Lord”: one who gives charity lends to the Holy One, blessed be He. This is the opposite of the claim that the money belongs to the Holy One, blessed be He. See also above, section E, what was written on this.

The explanation is that the principal greatness of charity is specifically to take from what is mine and give it (the righteous cherish their money as their bodies). Especially according to the views that charity is for me, it is clear that the giving is מתוך an experience that the money is mine and I am giving it.

4. The relationship between halakhic / of Jewish law categories and common sense, thought, and morality

During the study we will want to examine things in light of the formal laws, in the accepted analytical manner, but it seems that in many places considerations of common sense enter in. For example, the priorities of to whom and when to give, and what we saw that even though there is a prohibition here, one need not give all his money, because he himself would become poor. This is a common-sense rationale, which one should then try to anchor also in halakhic / of Jewish law considerations.

We will examine additional points where this is very prominent, such as: whether to investigate the poor person who asks. Whether to support a poor person at a standard of living that the giver himself does not have (such as giving charity for helping a bride purchase an apartment by someone who himself does not own an apartment). Whether one may direct him to a public fund, or whether I myself am obligated to sustain him (“sufficient for his need!”—which can involve a great deal of money). And more.

The greatness of charity:

Main sources

 

The entire siman 247 of the Tur and Shulchan Arukh. Maimonides chapter 10, laws 1-3. Their sources in the passages of the Talmud. Ahavat Chesed, vol. 2, chapter 17.

Main points for expansion

1. The heading of the siman is problematic: there is no discussion here at all of coercion regarding charity (this appears at the beginning of the next siman).

However, there is a discussion here about the reward of the commandment, and this projects onto the possibility of coercing its fulfillment. One may also say that because of the importance and virtues of charity listed here, one can understand why it may be coerced. But this still requires investigation.

2. The commandments from the Torah and from the Sages (see the introductory lesson)

3. Why do Maimonides and the Tur and Shulchan Arukh dwell on philosophical points? Are these laws or ideas?

Philosophical points arise in Maimonides and in the Tur and Shulchan Arukh mainly at the conclusions of books, and we find philosophical discussion within the laws mainly in Maimonides’ laws of repentance.

What charity and repentance share is that in both places Maimonides does not suffice with determining that there is a Torah law obligating us to give charity, or to repent, but tries to persuade us to perform these commandments by means of a detailed description of their virtues, based mainly on aggadic literature passages. The reason may be that these two commandments require action out of inner conviction and not merely “for the sake of the commandment,” like other commandments. Therefore Maimonides tries to persuade us of their necessity and importance (see the introductory lesson, where we discussed “let your heart not be grieved” and the mental dimension of all the commandments of charity).

Regarding Jewish law in matters of thought and morality, see the Talmudic Encyclopedia, entry “Jewish law,” notes 38-44 (especially 44).

Regarding deriving Jewish law from aggadic literature, see there at the beginning of section 5.

(And it requires investigation whether these rules concern only the lack of decision in non-halakhic disputes, or whether there is no clear and univocal truth at all in these areas. But this is not the place.)

4. The prohibition of testing God. The permission regarding charity or the tithe.

See Deuteronomy 6:16 and 14:22, and the commentators. Also Babylonian Talmud Ta’anit 9a and the commentators. See Einayim LaMishpat on Bava Batra 10b, the second part of s.v. “This sela is for charity,” at length, and Minchat Chinukh commandment 424.

Regarding the counting of this prohibition, see Sefer HaMitzvot, prohibition 64, and Sefer HaChinukh 424, who counted it differently, and Sefer Mitzvot Gadol, siman 4, who counted it. See also the book Derekh Mitzvotecha (by the משנה למלך), vol. 2 p. 426 in the Frankel edition of Sefer HaMitzvot, s.v. the first “I also saw” there.

Is this a prohibition against testing God out of fear of abandonment of faith / belief (see Torah Temimah on Deuteronomy 6, note 71)? Or a prohibition against serving God conditionally (see Nachmanides there)? Or a prohibition against serving God not for its own sake, for example tithing so that we become wealthy (see the novellae of Rif in Ein Yaakov to Ta’anit 9, and the novellae of the Geonim in Ein Yaakov there, and Tosafot Yom Tov and Midrash Shmuel on Avot 1:3, and see all the commentators there regarding serving God in order to receive reward).

See Tziyun Halakhah chapter 7, se’if katan 68. According to this, is it possible to examine/test the Holy One, blessed be He, at all? Apparently this is an approach that indeed there is no permission here to test the Holy One, blessed be He, but perhaps only to serve Him not for its own sake (in order to become wealthy—and it will not always succeed).

In light of each of the explanations above, there will be a practical difference regarding charity/tithe: how are they different from other commandments? According to the first opinion, the reward of charity does not depend on a person’s sins, meaning that it certainly makes one wealthy (see Birkei Yosef here, s.v. “the reward of charity,” and the Vilna Gaon on Maimonides chapter 10, law 2, and the Perishah here in the name of his teacher). According to the second approach, it requires investigation what is unique about charity in this regard. Perhaps according to this approach, as according to the third, the difference is that one is permitted to give charity not for its own sake (on condition that my son live, and so forth; see introductory lesson).

Another practical difference is whether there is a distinction between one who doubts and one who believes regarding this prohibition (see the gloss of Maharsha on the Shulchan Arukh here).

Another practical difference is whether one may test God regarding other results besides wealth (that his sons should live, and the like)—see Pitchei Teshuvah se’if katan 1.

What does it mean that one is permitted to test God through the tithe/charity? If when the test fails one may not stop serving Him—then what kind of test is this? This requires great investigation. I later saw that perhaps if the test fails he will serve God out of fear and not out of love (that is, the test is to examine God’s love for him). See Einayim LaMishpat there at the end of the discussion.

In the Shulchan Arukh there are two opinions whether one may test through charity or only through the tithe. See in the Derishah here, who explained it as the tithe of money (and see there his reason), as against Pitchei Teshuvah and the gloss of Maharsha here, who held that it applies only to the tithe of grain. See Derekh Emunah chapter 7, se’if katan 69-70. One should take note! Apparently this is truly a halakhic / of Jewish law question.

5. Concern about the lineage of the cruel person

In Maimonides at the beginning of chapter 10 (and following him in the Tur; the Shulchan Arukh omitted it, see below), charity is described as characterizing the descendants of Abraham our father. At first glance these are statements whose purpose is only to spur us to give charity, and this is explicit in Maimonides chapter 10, law 1, where he wrote that for this reason we must be very careful in giving charity. However, in law 2 Maimonides seems to go further and establish a ruling with halakhic / of Jewish law significance: “Anyone who is cruel and does not show compassion, one should be concerned about his lineage” (and the Tur and Shulchan Arukh omitted this here). According to this, Maimonides is precise in his wording in law 1 when he writes that charity is a sign for the righteous ones of the descendants of Abraham our father (and not for the descendants of Abraham our father in general).

See sources for Maimonides in Babylonian Talmud Beitzah 32b, and in Yevamot 79a.

There in Yevamot three signs are mentioned: bashful, compassionate, and doers of kindness. See Bi’ur Halakhah here for the dispute whether all three signs are required (and from Beitzah there is proof for Maimonides). See also practical halakhic / of Jewish law consequences in Beit Shmuel, Even HaEzer siman 2, se’if katan 5 and the commentaries. See further Maimonides, laws of forbidden relations chapter 19 law 17, slaves at the end of chapter 9, injuries chapter 5 law 10, repentance chapter 2 law 10, and his commentary to the Mishnah Avot 5:20.

It requires investigation whether this depends on prevailing norms. For example, nowadays when unfortunately there are many cruel people among us, and even more who show compassion to the cruel (whose end is to become cruel to the compassionate), should we be concerned about their lineage?

One should take note! As explained in Maimonides, laws of forbidden relations, and in the Shulchan Arukh, Even HaEzer there, this has a practical difference for matchmaking.

In light of all this, it is somewhat difficult what rationale for giving charity is present here. For if we are descendants of Abraham, we will give charity, and if not—we will not give. Will giving charity make us more descendants of Abraham? Apparently Maimonides means that this is an essential trait of our forefathers, and that it is highly fitting to adopt it, which is simple enough.

6. The concern of death

The Tur and Shulchan Arukh state that one must be very careful regarding charity, since the poor person may die if one does not give him (as in the story of Nahum of Gamzu, Ta’anit 21a).

See Bava Batra 10a, the dialogue between Turnus Rufus and Rabbi Akiva, whose conclusion is that the Holy One, blessed be He, does not provide for the poor but leaves their support to us in order to grant us merit through the commandment (see the introductory lesson). If we choose not to fulfill the commandment, will the poor person indeed die? Is the poor person’s fate dependent on us to such an extent, all in order to grant us merit through the commandment? Does the Holy One, blessed be He, harm one person in order to grant merit to another?

From the Tur and Shulchan Arukh here it appears that the Holy One, blessed be He, indeed created His world in such a way that if we do not give charity, the poor person will die, and this is difficult.

One must also consider whether one who did not give charity to a poor person, and that person died (as in the story of Nahum of Gamzu), is in the category of causing death. Did he violate only the charity prohibition (“do not harden” and “do not shut”), or something worse than that?

In the simple sense he also violates “do not stand idly by your neighbor’s blood,” and this too under compulsion (for he does not know that there is danger to the poor person’s life). However, after the warning of the halakhic decisors here, it seems that he is no longer considered compelled (at least he is unwitting rather than compelled, similar to what Rashba wrote in Shevuot 18 regarding one who had relations with his wife close to her expected menstrual time and she saw blood, that he is unwitting and not compelled, even though the expected periods are rabbinic. See Klei Chemdah, portion Balak, note 4, on this matter).

See Maharsha and Etz Yosef (printed in Ein Yaakov) on the story of Nahum of Gamzu, who discussed the degree of Nahum’s culpability in the death of that poor man. In Ben Yehoyada there, he explained like Maharsha that Nahum of Gamzu bore no sin, and he sought to bring suffering upon himself.

Lesson no. 2: The obligation of a poor person to give charity

For this entire law of charity by a poor person, see Einayim LaMishpat on Bava Batra 9a, se’if katan 7.

See also my notes to siman 251, end of part A (priority according to persons).

A. Sources of the law

In the Talmud, Gittin 7b: “‘And I will afflict you’ (Nahum 1)—Mar Zutra said: even a poor person who is supported by charity must practice charity.” Maimonides likewise wrote in Sefer HaMitzvot, positive commandment 195: “And the tradition came that even a poor person who is supported by charity is obligated in this commandment, that is, charity, whether to one lower than himself or to one equal to him, even with a small amount.”

And in the laws, chapter 7, law 5, Maimonides writes: “Even a poor person who is supported by charity is obligated to give charity to another.” Likewise in the Tur and Shulchan Arukh, beginning of siman 248.

There is room to doubt whether this is a Torah law or a matter from the words of the prophets. The source is a verse from the book of Nahum, yet it appears in Maimonides’ Sefer HaMitzvot as an essential component of the commandment. In the simple sense it seems this is a Torah law, by virtue of its inclusion in the introductions to the laws and to Sefer HaMitzvot. According to this, the source from the prophets is merely a scriptural support, or a revealing indication.

In the book Kiryat Sefer on chapter 7 of the laws of gifts to the poor, he leans toward the view that this is a Torah law, and brings additional examples of laws of charity learned from verses in Isaiah. At the end of chapter 9, Kiryat Sefer notes that a poor person is not coerced to give (see below), and raises the possibility that this is because a poor person is not Torah-obligated to give charity, but only by prophetic teaching. Apparently he holds, at least in this regard, that prophetic teaching is less severe than Torah law; this has already been discussed regarding doubts and more (see the entry “prophetic teachings” in the Talmudic Encyclopedia, especially section B. See there around notes 55-60, where Maharatz Chayot in Torat Nevi’im chapters 4 and 8 noted precisely regarding these verses in Isaiah that they are no proof because they only indicate a practice prevalent in Israel in those days, and therefore the laws derived from them are of Torah origin. Something similar is also said regarding acquisition by symbolic exchange, learned from the verse “Now this was formerly done in Israel” from the Scroll of Ruth).

At first glance one might have said that the commandment incumbent on a poor person to give charity from the charity money that he himself receives is not intended to enrich the poor, for by doing so he himself becomes poor, so what have we gained? Seemingly, the obligation to enrich the poor rests on the rich and not on the poor themselves. However, the aspect of duties of the heart would seem to apply to a poor person as well, and therefore one might say that the charity of a poor person is from the perspective of the giver and not the recipient.

However, according to this, in Maimonides’ view it would seem possible to say that the poor person should be obligated only in the prohibition, which belongs to duties of the heart, and not in the positive commandment, which belongs to duties of the limbs (see the introductory lecture). Now, Maimonides mentions the poor person’s obligation דווקא within the framework of the positive commandment (the aforementioned commandment 195), and not in the prohibition (232). However, as we mentioned in the introductory lecture, hardening of the heart applies only when there is a poor person who asks him for charity, and not whenever he does not give. According to this, perhaps there is room to say that when the giver is poor, and for that reason he does not give, there is no hardening of the heart here, and therefore the poor person is exempt from the prohibition.

And it is possible that since the prohibition is explicitly defined as belonging to duties of the heart, there was no initial assumption to exempt the poor from it, and therefore Maimonides found no need to mention the poor person’s obligation in the prohibition, for this is obvious regarding duties of the heart. In any case, it is clear that Maimonides holds that the poor person is also obligated (and perhaps: only) in the positive commandment, and this requires analysis. And if we say that the obligation is from the words of tradition and not from the Torah, this works well. Perhaps from the words of tradition we learned that there is also a category of duties of the heart in the positive commandment, and not only in the prohibition (and on this too, see the introductory lecture).

B. The Measure of the Poor Person’s Obligation

The Shakh in sec. 248, subsec. 1 wrote that a poor person is obligated to give charity only when he has enough for his own livelihood (and one should not ask how such a poor person is supported from charity, for if he has no principal from which he can live off the profits, he is still rightly considered poor, Shulchan Arukh sec. 253, hal. 2[4]). Seemingly, these words are explicit in the Rema in sec. 251, which deals with the question of to whom charity is given and who takes precedence over whom, who wrote in the name of the Tur as follows (there hal. 3):

One’s own sustenance takes precedence over every other person. And one is not obligated to give charity until he has his own sustenance, and afterward he should give precedence to the sustenance of his father and mother if they are poor, and they take precedence over the sustenance of his children…

And in the Tur these words are brought in the name of Rav Saadia Gaon, with sources, as follows:

Rabbeinu Saadia wrote: A person is obligated to give precedence to his own sustenance over every other person, and he is not obligated to give charity until he has his own sustenance, as it is said (Leviticus 25:36): ‘And let your brother live with you’ — your life takes precedence over your brother’s life. And so the widow of Zarephath said to Elijah (I Kings 17:12): ‘And I shall make it for me and my son first’ — for me, and afterward for my son. And Elijah agreed with her and said to her: ‘And for you and your son you shall make afterward.’

That is, the rule that oneself takes precedence is an obligation and not a permission, and its source is the well-known exposition of ‘and let your brother live with you.’ The Beit Yosef in Bedek HaBayit wrote: “I have some reservations about the words of Rabbeinu Saadia.” Indeed, in the Shulchan Arukh he did not bring the law of Rav Saadia Gaon, but only in the Rema (cited above). It seems that he holds that every person is obligated to give charity, even if he is poor. And this is unlike the Shakh.

And in the Perishah he brought an additional source from the sons of Jacob, who said (Genesis 43:8): “And we shall live and not die, both we and you and our children.”

However, in Nachalat Tzvi at the beginning of sec. 248 he disagrees with the Shakh and wrote that the words of Rav Saadia Gaon refer to substantial charity, but every person is obligated to give one-third of a shekel, even if he is utterly destitute (see sec. 249, hal. 2). See there, where he brought proof for his words from the Taz, Orach Chayim sec. 694, subsec. 1 (and likewise in the Bach there), who wrote there that even a completely destitute poor person is obligated to give at least one-third of a shekel once a year.

And Maimonides brought the laws of precedence in ch. 7, hal. 13, but did not mention that one’s own sustenance takes precedence. However, in Maimonides too there is seemingly a source that the poor person is not obligated to give charity, for the later authorities asked from Maimonides’ words in ch. 9, hal. 19, where he writes as follows (and similarly in the Tur and Shulchan Arukh 253:8):

If a poor person gave a piece of bread to the soup kitchen or a coin to the charity fund, it is accepted from him. And if he did not give, they do not obligate him to give. If they gave him new clothes and he returned to them the worn-out ones, they accept them from him. And if he did not give, they do not obligate him to give.

Seemingly this implies that the poor person has no obligation at all to give; rather, if he gave, one may accept from him. It would have been possible to distinguish between the obligation to give and compelling the poor person to fulfill his obligation, but from the wording ‘they do not obligate him to give,’ it appears that he has no obligation, and not merely that they do not coerce him (plainly, ‘they obligate’ does not mean coercion, but the imposition of an obligation). If so, Maimonides’ words here contradict what he wrote in ch. 7, that a poor person too is obligated in giving charity.

The Bach, cited by the Shakh 253 subsec. 11, resolves this similarly to what we suggested above: the poor person is obligated, but they do not coerce him, since he can exchange with his poor fellow (and see there, that according to him the wording ‘they do not obligate’ rather than ‘they do not coerce,’ which we questioned above, is resolved). This is according to his approach, that he holds like the Taz that every person is obligated to give, unlike the Shakh.

However, regarding Maimonides as well, several later authorities answered like the aforementioned Nachalat Tzvi, that every poor person is obligated to give one-third of a shekel per year, and beyond that he gives only if he wishes (see for example Derekh Emunah in Tziyun HaHalakhah ch. 7 subsec. 84, and Arukh HaShulchan). In truth, in Maimonides it appears that this is indeed the plain meaning, for in ch. 1 he speaks about one whose means suffice, who should give a poor person what he lacks, and in halakhah 5 he deals with a case where his means do not suffice, in which case he should give no less than one-third of a shekel per year, and he adds that even a poor person who is supported by charity is obligated to give charity. Plainly, he is speaking of an obligation to give one-third of a shekel.

But from the Shakh’s words above it appears otherwise: there is no obligation at all upon a poor person who has nothing. And thus he also wrote in reconciling Maimonides’ words, as cited above in the Shulchan Arukh (the Shakh on Shulchan Arukh sec. 253, who copied this halakhah from Maimonides, see there subsec. 11).

And in the aforementioned Tziyun HaHalakhah he noted that from Sefer HaChinukh, commandment 479, it appears like the Shakh, as follows:

And our sages said that even a poor person who is supported by charity is obligated to do charity if he finds someone below him who needs it.

But in Maimonides’ Sefer HaMitzvot, positive commandment 195, he wrote in a somewhat different language, from which it appears like the Taz, as follows:

And tradition teaches that even a poor person who is supported by charity is obligated in this commandment, namely charity, if it is for one who is below him or similar to him, even with a small amount.

Indeed, in the Tur and Shulchan Arukh they did not place the law that a poor person too is obligated to give next to the law that a person should not give less than one-third of a shekel, and this is seemingly like the Shakh. Maimonides, however, did place them together, which implies like the Taz, and this follows his approach in Sefer HaMitzvot, which we saw is like the Taz.

However, the measure of one-third of a shekel is from the words of tradition, but it appears that this is a rabbinic determination of the measure in which one is obligated by Torah law, and therefore the poor person is obligated in it by Torah law (perhaps like Tosafot at the beginning of Sukkah regarding one who fulfills the Torah law not in accordance with the categories of the sages: “you have never fulfilled the commandment of sukkah in your life”).

Accordingly, perhaps one can say that the Tur and Shulchan Arukh also intended Maimonides’ view, but did not go down to the detail of the measure of one-third of a shekel, and wrote simply that he is obligated to give. The measure of one-third of a shekel is the sages’ determination of the minimum measure.

Further support from Maimonides for the Taz appears from what he wrote at the end of Sefer HaMitzvot: “There are many commandments that may never arise, and charity is not among them, for charity is obligatory even for a poor person supported by it, as we explained.”

It emerges that the dispute of the Shakh and the Taz is like the dispute of Maimonides and Sefer HaChinukh. The Shakh and Sefer HaChinukh hold that a poor person who has nothing has no obligation at all to give charity, whereas a poor person who has something is obligated to give according to what he has. This is also the plain meaning of Rav Saadia Gaon’s language (as the Beit Yosef noted regarding him). The Taz and Maimonides hold that even a poor person who has nothing must give at least one-third of a shekel, for the commandment of charity applies to him as well. This also seems to follow from the Beit Yosef’s remark on Rav Saadia Gaon, that he agrees with them.

It should be noted that in Einayim LaMishpat on Bava Batra 9a, subsec. 7, s.v. ‘And seemingly,’ he wrote to resolve these contradictions in another way: there are two laws of charity — one law on the giver, to give at least one-third of a shekel a year (and it seems that this is for the giver’s sake), and one law to fill the lack of the needy person (which appears to be a law for the recipient’s sake). In the first law, even a poor person is obligated; in the second law, the poor person is exempt, since it is imposed only on one who has means. However, it appears that this itself is the view of the Taz and Nachalat Tzvi. According to this, it is very well understood that this also appears in Maimonides’ language at the beginning of ch. 7: “It is a positive commandment to give charity to the poor according to what is fitting for the poor person, if the giver’s hand is able, as it is said, ‘You shall surely open’… ‘sufficient for his lack’…” And we have already seen from several places that in Maimonides it appears like the Taz.

However, seemingly in practice there is no dispute here at all, for if he has one-third of a shekel, everyone agrees he is obligated to give it, and if he does not have it, it is unreasonable that the Taz would require him to borrow and give (and the halakhic decisors also wrote that one need not borrow in order to give charity). And if there is a rule that one is not obligated to give on a standard higher than what he has, then it is obvious that if he does not have one-third of a shekel he is not obligated to give (see the final passage in the accompanying pages to sec. 248). So too the language of Maimonides, that he gives “to one who has less than he does or is similar to him”; if he gives away his last one-third of a shekel, that other person will be richer than he is, and therefore it is obvious that he is not obligated to give. If so, in practice it seems not at all clear what the Shakh and the Taz disagreed about.

It seems that the dispute concerns a poor person who has more than one-third of a shekel, yet is still within the category of poor — that is, the designation ‘poor’ still applies to him. Since he is poor, then according to the Shakh and Sefer HaChinukh he is completely exempt from the commandment of charity and is not obligated to give even one-third of a shekel; only one who is not within the category of poor is obligated to give. According to the Taz and Maimonides, in any case he is obligated to give one-third of a shekel to one who is below him or similar to him. However, if he is in a situation where he does not even have one-third of a shekel, they too would agree that he is exempt, as explained above; but this is a very rare situation.

If so, the dispute concerns a poor person who has something to give, but is still in the category of poor (the designation ‘poor’ applies to him): according to the Shakh and Sefer HaChinukh he has no commandment to give, while according to the Taz and Maimonides he has a commandment to give at least one-third of a shekel.

However, this is difficult, for it is explicit in the Shakh that he is speaking about a poor person who receives from charity — that is, one who is poor — and nevertheless he is obligated to give. It therefore appears that the one who is not obligated to give according to the Shakh is only one who truly has nothing.

The likely explanation is that one must distinguish between a poor person who receives from charity and a needy person who receives from charity. There is a situation in which a person is not poor and nevertheless takes from charity. It seems that such a person is obligated to give charity himself. But a person to whom the designation ‘poor’ applies is the one exempt from giving charity according to the Shakh. According to the Taz, even such a person is obligated to give.

It seems, accordingly, that this is the basis for the resolutions of the Shakh and Nachalat Tzvi in the Taz’s approach to the aforementioned contradiction in Maimonides and Shulchan Arukh. When they wrote that even a poor person is obligated to give charity, according to the Shakh they were speaking about someone in need, and according to the Taz they were speaking about an actual poor person, who is obligated in one-third of a shekel. And when they wrote that his own sustenance takes precedence over others and therefore he is not obligated to give, and likewise when they wrote that if he gave they accept from him, but do not obligate him, according to the Shakh they were speaking about a person who bears the designation of poor, and such a person is not obligated to give at all according to the Shakh. According to the Taz, who holds that he too is obligated to give one-third of a shekel per year, they were speaking about giving more than that, from which he is exempt. It is possible that the dispute of the Shakh and the Taz itself concerns the distinction between poor and needy: the Shakh holds that such a distinction exists, and the Taz holds that all are considered needy, as will be explained below.

For at the end of the Mishnah tractate Pe’ah it states (also brought in the Tur and Shulchan Arukh sec. 253):

One who has food for two meals should not take from the soup kitchen; food for fourteen meals, he should not take from the charity fund. One who has two hundred zuz should not take gleanings, forgotten sheaves, pe’ah, or the poor tithe. If he had two hundred less one dinar, then even if a thousand are given to him at once, he may take…

One may investigate whether the rule regarding one who has less than two hundred zuz and is permitted to take gifts for the poor is the same rule as one who has food for two meals or fourteen meals (since they are taught in the same mishnah), or whether it is a different rule (for regarding him it speaks about gifts for the poor in general).

And the Bartenura there explained that the soup kitchen is distributed daily, and therefore one who does not have two meals takes from it, while the fund is distributed once a week, and therefore one who does not have fourteen meals takes from it. So too with two hundred zuz: the sages knew that this suffices a person for one year’s food and clothing. See Melakhet Shlomo on ch. 8 of Pe’ah in the name of the Rosh, who calculates this in detail.

However, in Birkei Yosef, Yoreh De’ah 253:1, he explained in the name of Doreshei Reshumot (and so too in the glossator on the Perishah sec. 253 at the end of subsec. 3) that the word charity in gematria equals one less than two hundred, because up to this point one may take from charity, but one who has more than two hundred no longer takes.

And from the Bartenura it appears that the definition of two hundred zuz is like food for two meals or fourteen meals — that is, even if he has more than two hundred zuz he is poor, but he may not take beyond what he needs, for if he takes, he harms the other poor people. Perhaps one can say that there is no such category as ‘poor’ at all; rather, everyone takes according to what he lacks, for otherwise it is unclear from when the designation of poor applies to him. If so, according to this approach there are no ‘poor people’ at all, but only ‘needy people.’ If so, from the Bartenura it appears like the Taz.

However, in Birkei Yosef it appears that he wishes to say that two hundred zuz is the defining criterion of a poor person, and Doreshei Reshumot found its measure. For if this were merely an estimate of food and clothing for a year, this number would have no particular significance. According to this, below two hundred zuz he is poor, and above two hundred he is not poor, though at times he may be considered needy. If so, Birkei Yosef is like the Shakh.

According to Birkei Yosef and the Shakh, it is even better understood why the mishnah rules that one who has less than two hundred zuz may take even a thousand zuz, and the decisors wrote that he may take even one zuz from a thousand people (and Melakhet Shlomo infers this from the mishnah). The explanation is that the goal is not to bring him up to the threshold where he is no longer poor, but rather that only a poor person is permitted to take charity. According to the Bartenura and the Taz, this law is difficult. One must say that since it came in one sum, they did not differentiate (and regarding the law of Melakhet Shlomo it appears that the Bartenura would not agree, unless they all came truly at one time. And the wording of the mishnah from which Melakhet Shlomo proved his point, it seems the Bartenura would explain that it changed the order because the main novelty is that he may take even a thousand zuz, but on condition that it all comes at one time).

And the questioner in Rashba’s responsum 912 in vol. 1 (brought in Darchei Moshe sec. 253 subsec. 1) was unsure whether when one has two hundred zuz, he may not take from gifts to the poor, but charity he may take, or whether he may not take charity either. The reason for the doubt there is that with gifts to the poor, if he takes he harms the other poor people, whereas in charity there is a law to give every person who is poor, and therefore he does not harm them. And R. Ephraim there concludes that everything depends on his means of support. That is, in principle he may take charity, for we hold that one receives enough for what he lacks,[5] meaning that even a wealthy person may take charity. Nevertheless, if he is alone (?) it is proper for him not to take, so as not to harm the other poor people.

From the formulation of the doubt it appears that the questioner assumes that even a person who has two hundred zuz can in principle take charity. The entire discussion was only whether he robs the poor people or not. Plainly, this means that even one who is not poor may take charity, that is, by virtue of being needy. One who has less than two hundred zuz is poor, and therefore there was a doubt whether the needy person may take at the expense of the poor person. If there were no two such concepts, there would be no room at all for the expression that he robs the poor people, for they too would only be needy, exactly like him.

Perhaps one can say that this itself was the questioner’s doubt: although in charity he does not rob the poor, perhaps it is nevertheless forbidden for him to take charity because he is not poor; or perhaps even one who has two hundred zuz may take, because even one who is below two hundred is not poor but needy. That is, the doubt is whether below two hundred zuz he is needy or poor, like the Taz or like the Shakh. And from R. Ephraim’s conclusion it appears like the Taz (everything depends on his means of support).

And the Tur and Shulchan Arukh wrote that one who has two hundred should not take charity at all. This implies that two hundred zuz defines the designation of poor. However, the Beit Yosef there brought several authorities who wrote that he should not take at all, and explained their words that one who takes more robs the poor; that is, it seems that in principle he may take, because even a needy person may take, but in the end the concern for robbing the poor prevails.

And we saw above that the Beit Yosef disagrees with Rav Saadia Gaon, and therefore in the Shulchan Arukh too he did not bring his law, meaning that he holds like the Taz. This fits well with his approach here, that he holds that even above two hundred zuz one may in principle take, but he is concerned about robbing the poor. One must say that this is an expression of robbing those who are more severely needy, for according to the Taz there are no poor at all, only needy people.

The various views in this topic should be carefully examined: which of them assumes that above two hundred zuz it is forbidden to take (in which case there are only poor people in the world and no needy people), and which assumes that in principle it is permitted to take but nevertheless forbids it because he robs the poor (in which case there is a needy person and there is a poor person, and it is forbidden for the needy person to take at the poor person’s expense — though see my note above on the Beit Yosef, who seems to hold this and yet follows the Taz’s view), and which assumes that in practice it is permitted to take (in which case, like the Taz, everyone is needy and there are no poor people in the world). See the book HaTzvi VeHaTzedek, sec. 4.

There are situations in which even one who has two hundred zuz is permitted, according to all views, to take charity in practice. This is the law of one-time expenses, such as surgery or a wedding, where even a wealthy person is considered poor, and may take even though he is not poor. In our terms: he is needy. So too regarding a householder who was traveling for business and found himself lacking cash, who is permitted to take charity (see Tur and Shulchan Arukh sec. 253, hal. 4); and likewise regarding one whose assets are not liquid (see there hal. 3); and likewise the example the Shakh himself gives, of one who has no principal from which he can live off the profits (today: a fixed salary), and more.

If so, according to our conclusion, the Shakh and the Taz disagree on the question whether there is a distinction between poor and needy, as explained above.

One may discuss whether the law in Shulchan Arukh sec. 253, hal. 4 (and also hal. 5), which deals with one who took charity even though he is essentially wealthy — that is, seemingly he is needy — whether he must return it when he prospers. The tannaim disagreed about this in Pe’ah ch. 5 mishnah 5, and the ruling follows the sages that he need not return it because he is like a poor person who became rich. Perhaps one can say that if, as the Taz holds, everyone is needy, then a householder who traveled to another city and was in a situation where he needed money and took charity is indeed needy and not poor, but he is considered like a poor person who became rich, because according to the Taz all the poor are merely needy. Thus, since he was needy he is considered poor. According to the Taz, poverty is determined by needs and not by an objective metric. By contrast, according to the one who holds that there is a difference between poor and needy, it is possible that a needy person who took charity would have to return it (and this is the opinion of R. Eliezer in the mishnah there).

C. Coercing the Poor Person

As to whether one coerces a poor person to give, the Kiryat Sefer cited above wrote at the end of ch. 9 that one does not coerce. The Shakh likewise wrote so here in subsec. 2. And in Semag it is written that they coerce “a rich person who does not want to give.” However, from the language of the Tur it appears that they coerce even poor people to give when they are obligated, for he wrote (at the beginning of sec. 248): “For everything that is fitting to give, the court coerces.” See the Derishah, who wrote that this does not refer to a poor person. So too wrote the Radbaz at the end of ch. 9.

And the Shakh wrote that the Derishah brought proof from sec. 253, hal. 8, which is the law that if a poor person gave, they accept from him. This is like the aforementioned Bach, that it is speaking about the same kind of poor person: he is obligated to give, but they do not obligate him. And the Shakh added that according to his own view there is no proof at all, for a poor person who has means and is obligated to give is also coerced; there, however, it speaks of a poor person who has nothing, who is not obligated to give, and therefore of course is not coerced. However, from the language of the Shakh it appears that he too agrees that they do not obligate him, only that there is no proof from there. That is, it appears from the Shakh that his inclination is also that even a poor person who is obligated to give is not coerced.

Now, this is understandable if the law is from the words of tradition or rabbinic, for one can say that they said it and they said it, and thus wrote the Kiryat Sefer cited above at the end of ch. 9 from the laws of gifts to the poor. But if the poor person’s giving of charity is an obligation from the Torah, then this requires analysis: if he is obligated in the commandment, why do they not coerce him? And if he is not obligated, then obviously coercion is irrelevant.

It seems that he is obligated in the commandment, yet nevertheless there is a rabbinic enactment not to coerce him. The explanation appears to be as follows. There is a difficulty with exempting the poor person from charity, and with the very distinction between poor and rich: why are there such distinctions at all? We hold that a person never becomes impoverished from charity (Maimonides ch. 10 and Tur and Shulchan Arukh sec. 247), and one may even test the Holy One, blessed be He, in this matter. That is, this is certain (see my notes to sec. 247 on this issue). Especially since the derivation that a person does not become poor from charity appears in the Talmud / Talmudic text Gittin immediately after it determines that even a poor person is obligated to give charity, implying that the two are interdependent.

Now, distinctions regarding the amount given — that each person gives according to his ability — are understandable, for otherwise there would be no need for charity at all. The overall arrangement is that the wealthy gives to the poor according to the capacities of each. But that is only a logical arrangement. A total exemption from charity does not seem reasonable. Therefore the Taz is very understandable, but the Shakh is very difficult.

The explanation of the Shakh will be seen below. However, according to this one may say regarding the Taz that the commandment of charity requires the poor person to trust in the promise of the Talmud / Talmudic text that he will not become impoverished from charity. A commandment that requires such a degree of faith / belief and trust is not one on which we impose coercion. We cannot demand such a spiritual level categorically from everyone. According to this, for example, we also would not coerce the granting of a loan before the Sabbatical year, even though there is such a commandment (assuming that in general one coerces regarding the commandment to lend). Fear of debt cancellation is not an elementary demand. Perhaps the same applies to pilgrimage festivals as well (where the Torah promises that enemies will not come to the cities that have been emptied). The commandment of leaving the land uncultivated in the Sabbatical year still requires analysis. Yet logically it seems that we do coerce regarding the Torah’s demands, for these are fully binding commandments, even if they require a certain degree of trust. The non-coercion was enacted only in extreme cases, such as a poor person giving charity, for there is also a commandment upon the rich. In the Sabbatical year of land or pilgrimage, the issue is equal for everyone.

See below, lecture 3, what I brought from Radbaz ch. 7, hal. 10, from which this understanding is proven.

And in Einayim LaMishpat on Bava Batra 9a, subsec. 7, s.v. ‘And Maimonides infers,’ he wrote that for a poor person who does not give because of his poverty, this is not hardening of the heart, and therefore he is not obligated in the prohibition. Consequently there remains only an obligation in the positive commandment, whose reward is stated alongside it, and they do not coerce concerning it.

D. Explaining the Shakh’s View

We saw that according to the Shakh there are poor people who are completely exempt from giving charity, and it requires explanation what the reason for the exemption is.

This can be explained in two main directions: 1. an exemption due to duress; 2. an essential exemption based on reasoning, since it makes no sense to give charity to one person and thereby turn the giver into a poor person.

It should be noted that from the reasoning of Rav Saadia Gaon, who tied this to the law of ‘your life takes precedence,’ it appears at first glance that this is an essential exemption. However, one can still say that it is an exemption of duress. Likewise, regarding two people walking in the desert, one may discuss whether he is exempt from giving to his fellow or whether he is under duress. Below we will see that regarding the Shakh it is more reasonable to derive it specifically from the law of duress and not an essential exemption, and Rav Saadia Gaon is the source for the Shakh’s view, so it is reasonable that he agrees with him.

A practical difference between these two reasons, for example, is a poor person who nevertheless gave: did he fulfill a commandment or not? According to the first direction, he certainly fulfilled a commandment; according to the second, perhaps he has no commandment at all, and this requires analysis. And if we say that nevertheless there is a non-obligatory fulfillment, one must ask what the source is for this (how does one reconcile common sense with a formal halakhic category? See the introductory lecture). Perhaps one who decides to give charity thereby shows that he is not poor, and therefore again becomes obligated, in the spirit of: who is rich? One who is happy with his lot. One who decides is not poor. In practice there is here a principle of ‘for me it is worth it,’ for that person decides that for him, the 100 zuz he has are worth 200, and therefore he is not poor. This is still somewhat like a non-obligatory fulfillment, since if he does not decide to give, he will be exempt. That is, poverty is a subjective condition, and this is simple in logic even when looking at the current situation in Israel and in the world (where socioeconomic status is not necessarily reflected in cultural level, meaning this is not necessarily poverty). In other words, this is a positive commandment where the decision whether to become obligated in it is subjective, and not truly a non-obligatory commandment.

It appears that the second rationale fits the direction that charity is for the recipient’s sake. The first rationale fits the direction that charity is for the giver’s sake, and therefore in principle there is value in his giving, except that he is under duress (see on this in the introductory lecture). Thus there is here another halakhic practical difference between the various approaches.

And if we distinguish in this respect between the prohibition and the positive commandment, it would emerge that regarding the prohibition, which is intended for the giver’s sake — he is under duress; but regarding the positive commandment, which is for the recipient’s sake — he is exempt. According to the reasoning of Mahari”l Diskin, that where there is no positive commandment there is also no prohibition, then he would again be exempt from the positive commandment and also from the prohibition (and see the introductory lecture, that Mahari”l Diskin himself made similar use of this reasoning regarding giving all one’s wealth to charity because of its prohibition. And for a poor person it is like all his wealth).

Perhaps one may also resolve the contradiction in Maimonides in this direction. In ch. 9, hal. 19, Maimonides is speaking about giving to the fund, from which even poor people whose situation is better than his are supported, and therefore he is exempt from giving (especially according to the formulation of Maimonides and Sefer HaChinukh, that the poor person is obligated to give to one who is below him or similar to him). In ch. 7, hal. 5, however, he is speaking about giving charity on the conceptual level, and there even a poor person is obligated to give, and even if he is exempt that is only because of duress (a consideration of duress, of course, does not depend on the identity of the recipient). See Einayim LaMishpat on Bava Batra 9a, subsec. 7, s.v. ‘And Maimonides infers.’

This direction is similar to what Einayim LaMishpat wrote above, distinguishing between two types of charity, which we explained to be the Taz’s approach: one commandment to give one-third of a shekel, and this is for the giver; and one commandment to fill the poor person’s deficiency, and this is for the recipient.

However, both reasons we brought above for the Shakh’s law are difficult. For just as we asked regarding the Taz why there is a distinction between poor and rich (regarding coercion and regarding the amount one is obligated to give), since a person never becomes poor from charity — so too, and seemingly even more so, it is difficult regarding the Shakh, who exempts the poor person entirely (and in the previous section we were left with this as unresolved).

Apparently, the Shakh says as we explained in the Taz, except that this is not only a matter of coercion but also of the very obligation itself. A poor person is exempt from giving because we do not demand from him such a high level of faith / belief and trust in the promise that he will not be harmed. This consideration exempts him entirely from the commandment. However, according to this it is obvious that if he nevertheless gives charity, he has fulfilled a commandment, for he demonstrates a higher degree of faith / belief (although greater is one who is commanded and does than one who is not commanded and does, and this will be at least like one who is not commanded and does).

It appears that all this applies only according to the first reason, that the poor person is under duress. For according to the reason that this is an essential exemption because it makes no sense that he should become poor, there is a promise that he will not become poor. Perhaps one can say that from the outset there is a definition that the commandment of charity is imposed only on the rich. This works well if one understands that the basis of the positive commandment, too, lies in duties of the heart for the giver’s sake; therefore when the poor person does not give because he lacks the means, there is no transgression, and there is also no obligation to overcome this and give (as we explained regarding the prohibition, according to Maimonides). However, in Maimonides we saw that the positive commandment is not part of duties of the heart, and indeed we saw that Maimonides follows the Taz’s view and not the Shakh’s, which is understandable.

On the other hand, we saw that Sefer HaChinukh follows the Shakh’s view, and this follows his position that even regarding the positive commandment there are duties of the heart (the definition of the positive commandment is to give joyfully; see the introductory lecture).

It seems that for this reason the Shakh and Sefer HaChinukh distinguish between the two concepts: ‘poor’ and ‘needy.’ For if, like the Taz, there are only needy people, then the giving is for the needy person according to his needs. But what is the rationale for the Shakh’s distinction between poor and needy? Why should everything not be determined by needs? Apparently, the designation ‘poor’ defines the commandment of charity that is for the giver. He has a commandment to give to a ‘poor person.’ Filling the deficiency of the needy person is for the needy person. This is like the common expression (among Lithuanians): they look for a ‘high-quality pauper’ for Purim, in order to fulfill through him gifts to the poor.

E. Your Life Takes Precedence

Above we saw the law of Rav Saadia Gaon that one’s own sustenance takes precedence over every other person, and he derives it from the law of ‘and let your brother live with you’ — your life takes precedence over your brother’s life.

On this matter, see Nedarim p. 72 and Bava Metzia 62a, and Einayim LaMishpat on Nedarim there and on folio 22 subsec. 6 s.v. ‘and paid.’ Regarding charity, see Nikdash BeTzedakah p. 31 onward, where he discusses whether when needs are unequal (the other needs food and he needs clothing, and the like) one should give to the other or whether he still takes precedence.

Who is obligated to give charity, and from whom do we accept:

Main sources

 

Tur and Shulchan Arukh sec. 248. Maimonides ch. 7 end of hal. 5 and hal. 11–12, and ch. 9 hal. 12 and hal. 19. Their sources are in the relevant Talmudic passages.

 

Main points for elaboration

 

The title of the section is problematic: it does not deal at all with who is fit to receive charity (that appears in sections 250–253).

Perhaps the intent is not the question of who is fit to receive charity, but from whom it is fit to receive it. According to this, the title of the section points to two main topics in this section: 1. Who is obligated to give charity. 2. From whom do we take charity (even if he is not obligated). Indeed, anyone who studies the section will find that it discusses these two topics.

The poor person’s obligation to give charity

will, God willing, be discussed in lecture no. 2.

Coercion concerning charity

See lecture no. 3.

The law of orphans and the deaf-mute, imbecile, and minor regarding charity

Tur and Shulchan Arukh sec. 248 hal. 3. Maimonides ch. 7 hal. 12.

Minor orphans are not subject to the commandments, and therefore no assessment is imposed on them. However, in Choshen Mishpat sec. 290 hal. 15 it appears that in the case of a deaf person and an incompetent person, an assessment is imposed, implying that with orphans this is a special law beyond the fact that they are minors.

According to the view that charity is a monetary lien (for example in Ketzot HaChoshen sec. 290 subsec. 3 and Taba’at HaChoshen there, and this will also be discussed in lecture no. 3 on coercion in charity), the distinction can be understood: the deaf person and the incompetent are obligated because there is a monetary lien on their property, and this is not merely a commandment. Orphans are exempt because one can wait until they grow up, and then they will pay. A practical difference is how much they must pay when they grow up (whether also everything that would have been assessed upon them in their minority. Plainly this does not seem so, and one must distinguish).

Charity is given when this is in the interest of the orphans (see Rema: that it would be a disgrace to them; and in the Shulchan Arukh: in order to increase their honor). For the reasoning in this, see the responsum of Maharit vol. 1 no. 127, especially s.v. ‘And it further appears’ and s.v. ‘And another reason.’

See the Shakh here regarding coercion upon them.

What the father vowed, the orphans are obligated to pay (analogous to the case where their father left them a stolen cow or garment; see Bava Kamma 94b and the decisors there). See Beit Lechem Yehudah (printed in the Shulchan Arukh here). Is this from the laws of honoring the father, or is it a debt in the object itself (a law belonging to Yoreh De’ah or to Choshen Mishpat)?

Regarding the other needs of the city, however, assessments are imposed upon them. See Choshen Mishpat sec. 163.

Further on this topic, and on expenditure for commandments from the property of orphans, see Shulchan Arukh Choshen Mishpat sec. 290 hal. 15. What is the relationship between the commandment of charity and other commandments regarding orphans (see our note above on the deaf person and the incompetent)? See Choshen Mishpat there, and Chatam Sofer responsa, Orach Chayim sec. 2, who elaborated that charity is different.

In Choshen Mishpat there it appears that the guardian himself can decide this, whereas in Maimonides here it appears that only a religious court can.

Regarding the relationship between guardians and orphans in general, it is worthwhile to see in Shulchan Arukh Choshen Mishpat sec. 290 in its entirety (in overview).

Women, slaves, and minors — we do not accept from them

Tur and Shulchan Arukh sec. 248 hal. 4. Maimonides ch. 7 hal. 12.

This is part of the second topic with which the section deals (from whom we take).

Introduction for the learner: There are three kinds of giving here: 1. From their own property (if the money is theirs in ways in which they can acquire property for themselves). 2. From the husband/father/master’s property, with his permission and as his agent. 3. From the aforementioned person’s property without his permission. In each case one must examine which of these possibilities we suspect, and which is permitted. ‘A small amount’ can be interpreted as something that a slave/woman/minor receives as a gift for himself or herself, and therefore we assume that he or she is giving from his or her own property. On the other hand, ‘a small amount’ can be interpreted as an amount about which the husband is not particular (see Maimonides’ language at the end of ch. 7 hal. 12 and the Shulchan Arukh here hal. 4, that a small amount is measured according to their owners. This implies that the discussion is whether he consents, and not whether they are giving from their own property. This is also explicit in the language of the Shulchan Arukh).

Regarding the trustworthiness of the woman who says she is giving as her husband’s agent, see Pitchei Teshuvah here and Arukh HaShulchan 248:13.

A woman who conducts business in the home. See the Rema in hal. 5 here (and from the responsum of the Rosh, klal 13 sec. 11, it appears that the place of this gloss is at the end of hal. 4), Pitchei Teshuvah here and the Noda B’Yehuda he cites, and Shakh Choshen Mishpat 96 subsec. 9. See also Beit Shmuel Even HaEzer sec. 91 subsec. 13, from which the opposite appears. See Yad Avraham here for what he wrote in the name of Yam Shel Shlomo (Bava Kamma ch. 10 sec. 59). See also Arukh HaShulchan there hal. 12 regarding a woman engaged in commerce.

Nowadays the relationship between a woman and her husband is different. Does this have an implication for her right to give charity? From the Noda B’Yehuda it appears not. Yam Shel Shlomo expresses it by saying that there is an assumption that she was appointed as an agent, but without that it would not help.

Today, according to state law, a married couple are partners in the property, and half the property belongs to her; therefore one should discuss whether her giving charity is effective even without an assumption of agency. See Maharsham vol. 1 sec. 45 s.v. ‘Further’ (regarding when they wrote egalitarian conditions). See also Rav Pe’alim vol. 2 Even HaEzer sec. 32, who permits a woman to give despite the husband’s protest.

Regarding accepting her gift by virtue of coercing her husband concerning charity, see the aforementioned Noda B’Yehuda and Arukh HaShulchan there.

When the husband objects, it is obvious that one does not take even a small amount (at least in their times).

The rule that one takes only a small amount does not apply only to charity collectors, but also to the poor themselves. See Derekh Emunah ch. 7 subsec. 88. The reasoning is simple: poor people too are commanded regarding theft.

The obligation to give charity and to do for the service of God from the good and the beautiful.

Shulchan Arukh 248:8. Maimonides, end of the laws of offerings disqualified on the altar.

The Vilna Gaon here brought a source from Cain and Abel (and this is explicit in Maimonides there).

This requires analysis, for seemingly this is a simple obligation of beautifying a commandment, so what novelty is there here, and why is this only for one who wants to merit? One should note: beautifying a commandment in itself is a positive commandment (‘This is my God and I will beautify Him’), and one who neglects it has neglected this positive commandment, even though of course it does not invalidate the commandment being beautified. Further, why is the source of Maimonides and the Vilna Gaon from Cain and Abel and from the verse ‘all the fat,’ rather than simply from ‘This is my God’?

See Bikkurei Yaakov (by the author of Arukh LaNer) sec. 656 subsec. 1, and the writings of Rabbi Yitzchak Zev Soloveitchik (stencil edition) vol. 5, Nazir 2b, s.v. ‘This one is beautiful.’

Perhaps one can resolve it as follows. Seemingly from here it appears that one should provide for the poor more beautifully than what one gives oneself. However, in my notes to sec. 250 (on ‘sufficient for his lack’) I brought in the name of Meiri — and this also is the simple reasoning — that one need not give a poor person on a standard higher than what the giver himself has. But here the discussion is not about an obligation, but about one who ‘wants to merit for himself,’ who must struggle against his evil inclination; and this is simple.

According to this, perhaps one can say that there is here a special novelty of beautifying a commandment, one that runs counter to the intuitive reasoning. When a person wants to merit for himself, there is a greater obligation of beautifying the commandment: with offerings this is to achieve atonement for himself, and with charity it is also like offerings. Therefore the parameters will also be different.

Regarding the status of charity as an offering, see the introductory lecture (on the section about the intention in charity, section 1), what I brought from my notes to sec. 254, and more generally from the understanding that charity is for the giver, according to which the above reasoning is somewhat weakened (that one need not give the poor on a higher standard than what the giver has).

Lecture no. 3: Coercion Concerning Charity

Expanded sources: HaTzvi VeHaTzedek sec. 9. Nikdash BeTzedakah pp. 211–230. Birkei Yosef at the beginning of sec. 248. Machaneh Ephraim, Charity sec. 1. Maharik root 148. Ritva, Ran and other authorities in Ketubot 48a and 49b, and likewise in Bava Batra 8b. Ba’al HaMaor and Nachmanides in Milchamot on Bava Kamma 36b (18a in the pages of the Rif).

The law of coercion concerning charity is connected to various topics, chiefly the law of coercion regarding positive commandments and prohibitions in general (see the work of Yoni Wolf), and to questions touching the nature of charity; it has many ramifications. Here we will discuss only its basic principles.

A. Sources of the Law, and Commandments Whose Reward Is Stated Alongside Them

We find coercion concerning charity in the Talmud / Talmudic text in Ketubot 49b and in Bava Batra 8b, where Rava coerced Rabbi Natan bar Ami to give four hundred zuz to charity. And in Bava Batra there we find: ‘They seize collateral for charity, even on the eve of the Sabbath.’

With all commandments there is a law of coercion to fulfill them or to refrain from transgressing them. The source of the law of coercion in commandments in general is in the Talmud / Talmudic text, Rosh Hashanah 6a:

‘That which has gone out of your lips’ — this is a positive commandment; ‘you shall keep’ — this is a prohibition; ‘and do’ — a warning to the court that they should cause you to do; ‘as you have spoken to the Lord your God’ — these are sin offerings and guilt offerings; ‘with your mouth’ — this is charity.

Seemingly we see that there is a general law of coercion regarding commandments, and charity is mentioned in the same verse for another matter (that what one says, or even thinks, concerning charity, one is obligated to fulfill).

And in Ketubot 86a it says:

In what case is this said? With prohibitions. But with positive commandments, for example, they say to him: make a sukkah, and he does not do so; or take a lulav, and he does not do so — they strike him until his soul departs.

Plainly, this baraita refers to some previous statement, and there is a contradiction in Rashi on this. In Chullin there Rashi explained that ‘in what case is this said’ refers to excommunication for one who does not wish to fulfill a commandment, whereas in Chullin 132b and 110b he wrote that it refers to the standard forty lashes after the transgression.

It seems that there is a difference here in perspective: according to Rashi in Chullin, it appears that the coercion is not a punishment but an attempt to get him to fulfill the commandment, and with a positive commandment they excommunicate him as much as they wish (though see there, that one could say the excommunication is itself a punishment, and for a positive commandment they may excommunicate more). According to Rashi in Ketubot, it appears that the coercion is a kind of punishment, except that with prohibitions he receives forty lashes, while with positive commandments he is lashed until his soul departs or until he fulfills it. Perhaps the explanation is that with positive commandments the possibility still remains to fulfill, and therefore they may strike him until his soul departs, for he can save himself by fulfilling the commandment. This is not so with a prohibition, where the punishment is after the non-fulfillment, since he has already transgressed the prohibition; therefore the punishment is forty lashes and no more. However, if this is punishment, it requires analysis why after he did not fulfill (for example, if Sukkot has passed and lulav or sukkah is no longer relevant) he does not receive at least forty lashes.

It further appears that Ketzot HaChoshen and Netivot HaMishpat disagree in Choshen Mishpat sec. 3 (see also Meshovev there) whether every person may coerce concerning a positive commandment, or only a religious court may do so. It is very reasonable that punishment is a right (or duty) given only to a court, whereas coercion to fulfill commandments can be understood as given to every person, analogous to a minor eating forbidden foods, where according to one opinion (and the law does not follow this) ‘the court’ is commanded to separate him; and according to all decisors, the intention is every private individual. Perhaps this is similar to the law that ‘a person may enforce justice for himself,’ where according to some decisors the meaning is that he constitutes a court for this matter.

One could say that in both passages it is prevention regarding positive commandments and punishment regarding prohibitions, and therefore with a positive commandment it is permitted to do more, since our goal is prevention until he fulfills. With a prohibition, which is punishment, there is a fixed limit.

Now, the Talmud / Talmudic text in Chullin 110b concludes that one does not coerce regarding honoring father and mother because it is a positive commandment whose reward is stated alongside it. Rashi explained that its reward is written in order to say that if one does not fulfill it, his punishment is simply that he will not receive that reward. Seemingly, from here it is proven that coercion regarding positive commandments is punishment, except that with positive commandments the punishment is given before the non-fulfillment, unlike prohibitions where the punishment is given afterward. This fits his words in Ketubot, and not his words in Chullin.

Also in Tosafot, s.v. ‘the suppressor,’ Sanhedrin 89a (and see Minchat Chinukh commandment 516 subsec. 4), it appears that coercive disciplinary lashes are in the category of punishment, for Tosafot wrote that one who suppresses his prophecy is lashed — meaning disciplinary lashes intended to coerce him to prophesy. See also the book Chiddushim MiBeit HaRav (Mishkovski, from Kfar Chasidim), who wrote that all coercion regarding commandments is by virtue of punishment), and there are additional sources for this.

It appears that there is a combination here of two reasons: the obligation to cause one’s fellow to fulfill what is imposed upon him, and the punishment he deserves for not fulfilling it. The coercion stems from the coercer’s obligation to cause his fellow not to sin, or to fulfill the commandment. However, he has no license to behave violently toward another merely by force of this obligation that rests on the coercer. To justify violence, there must be a reason connected to the sinner himself — namely, the fact of his sin. Rashi apparently held that the punishment deserved by the sinner is this additional reason, and only because of it are we permitted to use violence in coercion concerning commandments. True, punishment is not entrusted to every person but only to a religious court; however, when joined with the obligation to coerce regarding commandments, the Torah permits every person to coerce with violence. That is, the coercion is an attempt to cause him to fulfill the commandment, but we allow ourselves to strike him because he also deserves it as punishment. There is a kind of mutual necessity between these two rationales: if there were only the obligation to punish the sinner, that would help only for a court (and regarding positive commandments, even a court does not truly punish, except for disciplinary lashes — as we will mention below). On the other hand, if there were only the obligation to cause one’s fellow to fulfill his duties, this would not permit me to act violently toward him, for that is my obligation, and reasons derived from the coercer are not a factor that can permit violence toward another.

Since there is here a combination of two reasons, Rashi brings each one in the relevant context. When the discussion concerns excommunication, which is a means to cause a person to fulfill commandments, Rashi understands the coercion that way as well; and when the discussion concerns forty lashes, which are punishment, Rashi understands the coercion that way as well. It is interesting to note that Rashi in Chullin 110b, when discussing commandments whose reward is stated alongside them, cites specifically the baraita in Ketubot, and not the one in Chullin. The reason is that in Ketubot coercion is viewed as punishment, and that is the relevant plane also in the discussion of commandments whose reward is stated alongside them.

There are several ramifications to the conception presented here. First, after the sin, when coercion is no longer relevant, the first rationale is lacking, and therefore they do not strike him.

Another practical difference for such a conception is that if a person neglected a positive commandment unintentionally, we would not forcibly coerce him to fulfill it. The reason is that when he acted unintentionally, he does not deserve punishment, and therefore we have no permission to strike him in order to cause him to fulfill the commandment (a practical difference today regarding coercing secular Jews to fulfill commandments, assuming they are considered unintentional transgressors).

Another practical difference concerns a positive commandment whose reward is stated alongside it, where the Torah teaches us that no punishment is due to one who does not fulfill it (apart from loss of the promised reward). Therefore one cannot coerce its fulfillment, since in the absence of the punitive component, coercion is not applied. Nevertheless, the obligation to cause him to perform the commandment still exists, and therefore one remains obligated to act in every possible way to accomplish this — but he has no permission for violent coercion, as explained (and see my note below on Rabbenu Tam’s view regarding charity).

Maimonides did not bring the law of coercion concerning commandments from this baraita, but only at the end of the fourteenth root, and it requires analysis whether he holds this in practice. He brings this law only regarding coercion to bring offerings (see Laws of Sacrificial Procedure ch. 14 hal. 15), where he wrote that a religious court coerces one to bring his offerings at the first festival, even though until three festivals pass one transgresses not a prohibition but only a positive commandment (see Tzafnat Paneach ch. 8 of Gifts to the Poor hal. 1, who wrote that there is also a prohibition where he did not yet designate the offering. The three festivals concern one who designated it but did not offer it). It is also difficult that Maimonides in the Laws of Rebels ch. 5 hal. 15 wrote that a religious court may administer disciplinary lashes and punish as they see fit anyone who does not honor his father and mother. However, it appears that Maimonides there is speaking of punishment and not coercion, and presumably this is punishment for actual offenses against his father and mother. Indeed, it appears there that they do not coerce one to fulfill the honor of father and mother (and see there in hal. 15 that it indeed appears that he is speaking about disgracing his father and mother, and not about failure to honor them).

One could elaborate regarding the Torah sources for the law of coercion (“do not stand idly by your neighbor’s blood,” ‘love your fellow as yourself,’ ‘you shall surely rebuke,’ the very obligation to uphold commandments resting on the community, etc.), but this is not the place (see the work of Yoni Wolf).

It is important to note that there is another problem with coercion regarding commandments, namely that the person being coerced seemingly does not fulfill the commandment, for he acts under duress. Here the well-known words of Maimonides apply (ch. 2 of Divorce and Sacrificial Procedure there), that one coerces him until he says, ‘I want to,’ at which point there is indeed real desire, and this has been much discussed.

B. The Law of Coercion in Charity and Its Nature

As we have seen, there is a law of coercion regarding charity, and its source is in the above-mentioned Talmudic text in Ketubot and Bava Batra. Maimonides, in the laws of Gifts to the Poor, chapter 7, law 10, brings the law of coercion regarding charity, and his words were also copied into the Shulchan Arukh (YD 248), as follows:

One who does not wish to give charity, or who gives less than what is fitting for him, the religious court compels him and administers disciplinary lashes until he gives what they assessed him as obligated to give. And they descend to his property in his presence and take from him what is fitting for him to give. And they take collateral for charity, even on Sabbath eves.

There are several novel points that emerge from these words of Maimonides, and below we will discuss them. The main point is that in the law of coercion regarding commandments, it is accepted that one does not descend to property, but only compels the obligated person to act; whereas in coercion regarding repayment of a debt, one descends to property in order to extract for the creditor what is due to him. Simply speaking, the difference lies in the fact that with a debt, collection is not a commandment but extraction of money that belongs to the creditor and restoring it to its owner (“your money is in your possession”); whereas with a commandment, the obligation is on the person to perform the commandment, and it is of no use if we perform it in his place.

Accordingly, Maimonides’ intention here requires examination, for charity is a commandment and not a debt, so why do they descend to his property? There are two problems here: the money does not belong to the poor. If they descend to his property, he does not fulfill the commandment. And further, why do they descend only in his presence? We will discuss this below.

Most of the medieval authorities (Rishonim) also wrote that one compels regarding charity, in light of the above-mentioned Talmudic text. The matters are detailed in Ba’al HaMaor and Nachmanides in Milhamot on Bava Kamma 36b, and among the medieval authorities (Rishonim) in Ketubot 48 and 49, and Maharik root 148, and more, as we shall see below.

Now many wondered about this from the Talmudic text in Hullin mentioned above, that a commandment whose reward is stated alongside it is not subject to coercion, yet charity has its reward stated alongside it: “for because of this thing the Lord your God will bless you in all your deeds” (Deuteronomy 15). Indeed, Maharik in root 148 cites from Rabbi Elijah that charity is not a positive commandment whose reward is stated alongside it, since it does not contain a promise of long life. But this still requires close examination: what logic is there to distinguish between different kinds of reward? (Perhaps his intention is this world versus the World to Come, but this too still requires examination as to the reason.) And some wrote that the reward is for a loan to the poor and not for charity (for a loan is the best form of giving charity. Still, this is somewhat difficult, since from the perspective of the giver it is clear that a loan is not the thing that demands the greatest sacrifice), and if so there is no difficulty. Indeed, most commentators did not accept this distinction, and each resolved it in his own way, as will be explained below.

And in Tosafot, s.v. “Akhpeya,” in Ketubot 49b and in Bava Batra 8b, they asked how Rava compelled Rabbi Natan bar Ami to give charity, for this is a positive commandment whose reward is stated alongside it. They answered with several answers (and we will bring others from additional commentators):

1. Rabbenu Tam: he compelled him verbally. And the medieval authorities (Rishonim) asked against him from the Talmudic text in Bava Batra 8b that collateral is taken for charity. And the Shitah Mekubbetzet there in Bava Batra answered in the name of Tosafot that this refers to taking collateral verbally. See also Birkei Yosef at length at the beginning of siman 248.[6]
2. Rabbenu Tam: this refers to a case where they accepted upon themselves that the collector would compel.
3. Tosafot Ketubot: this refers to charity that the townspeople fixed, for they can enforce their opinion and the community’s decisions. And it does not seem that the intention is like Rabbenu Tam’s second answer in Bava Batra above, for here he need not accept it upon himself. And this interpretation is implied by the flow of the passage in Bava Batra 8b, which deals with charity collectors who are permitted to take collateral for it, and within that framework they also brought the case of Rava.
4. Rabbi Isaac: in charity there are also prohibitions. Tosafot Ketubot says there are two prohibitions, unlike Maimonides and those who agree with him, who counted one prohibition (see opening lecture), while in Bava Batra they wrote that there is a prohibition (implying there is only one). Rabbi Isaac’s claim is that for prohibitions one compels in any case. According to this explanation, it follows that where there is no prohibition, one truly does not compel. And perhaps this is the explanation why an indigent person who is obligated to give charity is not compelled (see lecture no. 2), for he is obligated in a positive commandment but not in a prohibition, since he is not hardening his heart when he does not give (see lecture 2 and the opening lecture on Maimonides).
5. Ritzba in Tosafot Bava Batra: a positive commandment whose reward is stated alongside it need not be compelled, but the religious court is permitted to do so. The medieval authorities (Rishonim) in Ketubot wrote that this is the view of the Jerusalem Talmud, but it appears that the Babylonian Talmud disagrees. In practice, the words of Ritzba are reasonable (even if the other answers are also correct), for the religious court strikes and punishes beyond the strict law, and presumably can also compel regarding a positive commandment whose reward is stated alongside it. However, if a private person compels charity (see above), this law is not clear, and there is a certain novelty here.
6. The Tzafnat Pa’aneach, chapter 7 law 1, wrote that coercion regarding charity is because of the atonement involved in it (and see the opening lecture regarding charity as a sacrifice). With this he explained the Talmudic text in Ketubot 41a, from which it is proven that even from a mentally incompetent person, who is exempt from the commandments, charity is taken. See there at length.
7. From Rav Hai Gaon, cited by Ba’al HaMaor there in Bava Kamma, it appears that one compels only when the charity is like a vow, and the coercion is by virtue of fulfillment of the vow. And this also appears in Nachmanides in Milhamot there. We will discuss this at the end of the term.
8. Ritva on Ketubot 49b wrote that regarding charity there is a special derivation that one compels, from the above-mentioned Talmudic text in Rosh Hashanah: “‘And you shall do’—a warning to the religious court to make you do it.” And we saw there that later in the verse it also refers to charity, and if so, a law of coercion regarding charity was innovated here as well. Here it is clear that one compels even where there is no prohibition, for by force of the above derivation one compels regarding positive commandments. And this also appears from Maimonides’ Commentary on the Mishnah to Ketubot, chapter 4 mishnah 6. And this is the language of Ritva in Ketubot 49b:

Where he is of means, we compel him by the law of charity, and even though it is a positive commandment whose reward is stated alongside it, and we maintain that all positive commandments etc.—there it refers to other commandments such as honoring father and mother and the like. But regarding charity we compel him because of the lack suffered by the poor. As the Merciful One wrote, “And you shall do”—a warning to the religious court to make you do it. And even though that verse is written regarding one who vows, the Merciful One revealed it regarding charity that he uttered with his mouth, and the same applies to all charity because of the lack suffered by the poor.

At the beginning of his words it sounds as though one compels by virtue of a vow, as above in section 7. However, later he brings that from the verse “And you shall do” we derive regarding all charity that one compels for it. He notes that the category is because of the lack of the poor.

And in Ritva’s novellae on Rosh Hashanah 6a he wrote an important addition, as follows:

And he answered that here we do not compel him merely because it is a commandment incumbent upon him alone, but because he obligated himself and his property to Heaven or to the poor. And just as we compel him to repay what he owes to an ordinary person, so too we obligate him to pay what he is obligated to the Temple treasury, for the force of an ordinary person should not be more stringent than the force of the Temple treasury.

From Ritva’s words here we see that the coercion is like coercion regarding a debt, and not like coercion regarding commandments. And perhaps the practical difference is that one may descend to his property. So too Radbaz wrote explicitly in chapter 7 law 10, where he wrote as follows:

And it appears to me that the positive commandment of charity is different, since it contains a rectification for the poor, and it is like a debt upon him; and one compels him to repay his debt, and descends to his property, as is done for one who refuses to repay the debt upon him. Know this, for regarding all commandments testing is forbidden, but regarding the commandment of the tithe it was permitted, as it says, “Bring the whole tithe etc., and test Me now with this etc.” And I say that also regarding charity testing was permitted.

It is not clear what Radbaz added from the permission to test God regarding charity. It seems clear that his intention is as we saw in lecture no. 2 above: if there were no promise that one would not become poor from charity, they would not compel even one who is obligated in it (and regarding an indigent person, even after the promise, they do not require such a degree of trust through coercion).

In any case, it is proven from here that one also descends to property, exactly as with a debt.

And likewise in Nachmanides in his novellae to Bava Batra 175b (and so too is implied in Milhamot on Bava Kamma there, where he wrote that they extract from him against his will, although there this interpretation is not necessary), he wrote as follows:

Since repayment of a creditor is a commandment from the Torah, and one compels regarding positive commandments, we too descend to his property and fulfill for him the positive commandment against his will.

We see in Nachmanides that this is actual coercion for the sake of debt collection, like the law that repayment to a creditor is a commandment. The commandment creates a debt, and therefore one descends to the property. This approach reminds us of the words of Maimonides above, that one descends to the property of one obligated to give charity (and does not merely compel him to give).

C. Lien on property in charity

At first glance, this direction in the medieval authorities (Rishonim) may be understood in two ways:

• The commandment of charity is indeed an ordinary positive commandment, but it is a commandment toward others. And although regarding a regular commandment one only compels and does not descend to property, regarding commandments that concern one’s relation toward others one compels by descending to property. According to Ritva, this law is learned from the verse “And you shall do.” However, one could have said that the novelty is that one compels despite the stated reward, because where the punishment does not come for failure to fulfill the commandment (for the Torah innovated that only withholding the reward is the punishment), there is the consideration of the lack suffered by the poor,[7] but one still does not descend to property. So it appears from Rashba, cited by Ran in Ketubot 48a and by Maggid Mishneh, Laws of Marriage 12:15, and similarly from Rav Hai Gaon in Ba’al HaMaor on the above Bava Kamma (see below). But in Ritva on Rosh Hashanah we see that from this verse they learn that one compels also by descending to property, similar to a debt even though it is not a debt. According to Ritva, it appears that the lack suffered by the poor is a general consideration: where there is lack on the part of another, one descends to property; it is not a local consideration serving as a substitute for punishment in the case of a positive commandment whose reward is stated alongside it (as in the views of Rashba and Rav Hai Gaon).
• Charity is not an ordinary commandment but a debt toward the poor. In fact, according to one view, even repayment to a creditor is a positive commandment, and the obligation to repay is because of that positive commandment. And one even descends to property in order to fulfill this commandment. These are both cases of debt created by a commandment to repay. So it appears in Nachmanides and Radbaz.

According to the first direction, there is no debt toward the poor, yet one still compels, and perhaps even by descending to property. According to the second direction, there is a debt toward them, and therefore it is obvious that one descends to property.

And it would seem that the consideration of a commandment toward others also exists in honoring father and mother, and if so we should also compel regarding honoring father and mother, despite the fact that its reward is stated alongside it.

Seemingly, this proves that Ritva’s intention is not to say that a commandment toward others is compelled despite its reward being stated alongside it, but that charity is a debt, whereas honoring father and mother is only a commandment and not a debt (especially since we maintain that one honors him from the father’s resources and not from his own). Still, Ritva’s reasoning is somewhat difficult, since he explained that because the commandment is directed toward others, it is like a debt. According to this, honoring father and mother, which is toward others, should also have been a debt, so why indeed is it not defined as a debt?

Therefore there is room to reject this and say that honoring father and mother is indeed a commandment toward others, but its purpose is not the other person but the person himself. Especially since the well-known conceptual inquiry exists whether honoring father and mother is a commandment between man and his fellow or between man and God. If we say it is between man and God, then it is obvious that one would not compel for it, since the other person is only the circumstance through which one becomes obligated (and something like this consideration we saw in the opening lecture regarding a blessing on charity, see there). According to this, one could also say in Ritva that there is no debt, only a commandment, and nevertheless one compels. Of course, the option of understanding charity as a debt also remains possible.

And Maimonides in chapter 5 of the laws of Rebels wrote that we compel regarding honoring father and mother (his words were cited above). And one might have said that regarding a commandment that concerns others, one compels even where there is no debt, and therefore they compel also regarding honoring father and mother. However, above we saw that it seems likely that Maimonides’ intention is coercion against disgracing his father and mother, which is coercion regarding transgressions. And Maimonides’ language there is: “And the religious court may strike for this with disciplinary lashes and punish for this as they see fit.” This implies that we are dealing here with punishment and not coercion—that one administers disciplinary lashes as punishment for a positive commandment, for it is no worse than a rabbinic prohibition for which one gives disciplinary lashes. However, from Rashi it is proven that even punishment is not administered for honoring father and mother, for in Hullin, according to Rashi, coercion is treated as punishment, and regarding this it was said that one does not do so for commandments such as honoring father and mother.

One must consider what the law is regarding failure to honor one’s father and mother financially, according to the view that one honors them from one’s own resources. Is one punished for this, and is one compelled regarding this, and does one descend to property? For one could say that punishment is not given for this, but coercion for performance of a commandment exists even in such a case (exactly the reverse of Maimonides), and because the commandment concerns others, one also descends to property.

And according to the view that one descends to property as for a debt, we raised two difficulties above: 1. the money does not belong to the poor, so why should we take it ourselves? 2. if we take it ourselves, he does not fulfill the commandment.

Indeed, we find that Ba’al HaMaor in the name of Rav Hai Gaon and Nachmanides disagree on this. Ba’al HaMaor wrote as follows:

For that which we compel him regarding charity, to set aside money in order to give to the poor, is until he says, “I want to.” But to take from him against his will when he has not said, “I want to,” the religious court has no authority to do so…

That is, according to Rav Hai Gaon, in the end he must say “I want to” in order to fulfill the commandment of charity. If so, it is clear that one does not descend to his property, but merely compels him until he says “I want to.”

In contrast, Nachmanides in Milhamot there wrote as follows:

For since he is of means, the religious court extracts from him against his will; and likewise for support of his minor children, if he is of means we compel him, and we do not require that he say, “I want to.”

We see in Nachmanides that one descends to his property and he need not say “I want to”; that is, this is truly like a monetary debt. Yet both possibilities within Nachmanides remain: either it is like a debt because the commandment concerns others, or it is an actual debt.

The possibility that this is like a monetary debt even though it is only a commandment apparently stems from the understanding that the commandment is also for the benefit of the recipient and not only of the giver (see opening lecture and elsewhere). Since this is so, there is value in descending to his property even if he does not say “I want to,” and indeed he will not fulfill the commandment in such a case. This also fits well with the fact that the commandment of charity is effective even not for its own sake (“on condition that my son live,” see opening lecture), for the poor person’s lack has in any case been filled. That is, the result of the commandment was achieved, even though there is clearly a flaw in the performance of the commandment (and so too Beit HaLevi wrote in his homilies). However, if we say that the commandment is only for him, then it is clear that if one descends to his property this is because charity is truly a debt. The commandment creates a debt, and now we descend to the property.

Taking collateral from a person so that he will give charity appears like descending to property, to the point that some ask why take collateral rather than taking the collateral directly for charity. It seems that taking collateral is not descending to property but coercion through his money, for “instead of compelling him bodily, compel him through his money” (the language of Ran in Ketubot 48a). According to this, what they asked from this Talmudic text against the view of Rashba above—that one compels but does not descend to property—is understandable. The Talmudic text says that one takes collateral for charity by way of coercion through his money, but this is not descending to property, and therefore it does not contradict the view that charity is a commandment for which one compels without descending to property.

And in practice, the halakhic decisors disputed whether charity is a monetary lien upon the person. See on this Ketzot HaHoshen siman 290 se’if קטן 3, who proves from the law of the postpartum burnt-offering that the obligation to bring it creates a lien on property (although according to the words of the Tzafnat Pa’aneach above, one could distinguish that only commandments for atonement create a lien, unlike charity, which is not only for atonement—and that is unlike the Tzafnat Pa’aneach himself). And similarly in siman 39 se’if קטן 1, Ketzot HaHoshen asked why, according to the Shulchan Arukh, usury is extracted by judges but one does not descend to his property (YD 161:1), while regarding charity one does descend to property. He answered that regarding charity there is a lien on property. The explanation is that with usury this is a commandment not toward one’s fellow but between him and God, for his fellow agreed to pay interest, and only the Holy One forbids taking it despite the agreement. That is, here the fellow is merely the circumstance, as explained above regarding honoring father and mother; for that, one does not descend to property, since no debt toward the fellow was created, and therefore returning the interest is not a debt. And see there further, where he elaborated on this, and in Netivot HaMishpat 290:8, who wrote that there is no lien on property unless the collectors assessed an amount upon him, or when he is obligated to his relatives (see also Kesef Mishneh, Laws of Inheritances 11:11); but regarding charity, which he himself undertook to give, there is no lien on property. See also Taba’at HaHoshen siman 290, who discusses the view of the halakhic decisors on whether charity is a monetary lien.

See on this also the book Havat Binyamin by Rabbi Yisraeli, vol. 2 siman 92.

And in the above language of Maimonides it says that “they descend to his property in his presence,” and see also Laws of Marriage 12:17 where he wrote similarly. From the language of Radbaz above it appears that this is truly like a debt, and if so it is clear that one descends to property even not in his presence. Apparently Radbaz understands Maimonides like the Shakh 248:4, who brought this from the Bach (siman 248 s.v. “and one who does not wish”) that Maimonides’ intention is to say that they descend even in his presence and do not wait until he himself gives, and certainly they also descend not in his presence. However, the Shakh himself disagrees, but that is because even with a debt one does not descend except in his presence or after notifying him. That is, the Shakh too holds that charity is like a debt.

From the plain wording of Kesef Mishneh in Laws of Inheritances 11:11, it appears that the reason one does not descend when he is absent is only because we suspect that he gives charity where he is located. This implies that if we knew he was not doing so, we would descend to his property. If so, this accords with the view of the Shakh, Bach, and Radbaz in Maimonides.

In contrast, from Maggid Mishneh, Laws of Marriage 12:17, it appears that one never descends to property when he is absent. And similarly in Laws of Marriage 12:15, Maggid Mishneh brings the view of Rashba that one does not descend to property even for the sake of his son. So too Beit Shmuel EH 71:6 rules. And Ran on the Rif to Ketubot 48a wrote that what one descends to the property of one who went overseas is only because of an assessment that he would be pleased with this.

Simply speaking, the understanding of this view is that even according to Maimonides there is no lien on property for charity, and the fact that one descends to property is part of the act of coercion. One descends to property in his presence as a coercive measure in order that he say “I want to,” and therefore one does not descend when he is absent. True, Maimonides does not state that he must say “I want to,” but it is possible that he assumes this as self-evident in light of his well-known determinations in the laws of sacrifices and divorce.

And the Kehillot Yaakov on Bava Batra siman 8 explained those who say this in Maimonides in another way. One does not descend to property because this is money that has no claimants. However, in the responsum of Rema 31 it emerges that charity for the poor of the city is money that has claimants. And regarding his son it seems obvious that it is like money that has claimants, and if so they would compel in such a case (see Nikdash BiTzedakah siman 488), and see also responsa Rashba vol. 3 simanim 293 and 294. According to the view of the Kehillot Yaakov, there are two situations of coercion: where there are no claimants, one descends to property only in his presence by the law of coercion regarding commandments; and where there are claimants, one descends to property by the law of lien on property.

However, in Maggid Mishneh it is stated that even regarding his son there is no descending to property when he is absent. This proves unlike the Kehillot Yaakov, but rather that there is no lien on property in charity, except perhaps through the public. Still, according to this it is somewhat difficult why regarding usury one does not descend to property even in his presence. It seems that the same explanation we gave above applies (that usury is not an obligation toward one’s fellow, but he is only the circumstance that triggers the obligation or the address for restitution), and therefore one compels him to return it but not by descending to property. Yet this still requires examination as to why. Perhaps one can argue that in usury the prohibition has already been violated, and there is no commandment to return the usury except in order not to continue violating the prohibition. In such a case, one does not descend to property even in order to compel. It is possible that coercion by descending to property in expectation that he will say “I want to” is ineffective, since there is no commandment to return the interest. Only if we compel him to return it himself will it be clear that he indeed wants this. More than that, perhaps because he already took the interest, it is not enough that he say “I want to”; he must return it himself. And perhaps “I want to” works only for positive commandments (which are service out of love; see Nachmanides, parashat Yitro) and not for prohibitions (which are service out of fear).

A practical difference, apparently, for the law of lien on property would be if a person died before giving charity—whether one must take from his property for charity from the heirs. And we do not find such a determination in the halakhic decisors, which requires examination. It is possible that the explanation is that indeed in this case a lien exists, but it is renewed at every moment and is not fixed at one given moment and carried forward. This is a lien derived from the commandment to give charity, and at every moment that there is a commandment there is a lien. After his death, when there is no one obligated to give charity, there is no longer a lien on property either (one can say that this is a lien on the person and not a lien on property).

In fact, this understanding appears explicitly in Mahaneh אפרים, Charity siman 1, who asks against the view of the medieval authorities (Rishonim) that one descends to property from the Talmudic text in Ketubot, that regarding a mentally incompetent person who went overseas one descends to his property to support his wife and children and for charity. Now, supporting his wife and children is understandable, for that is a lien that already existed and remains even at the time of his mental incompetence; but with charity the obligation is renewed at every moment, and therefore when he is mentally incompetent there is no obligation to give charity, and consequently there will also not be a lien on property. If so, it is proven that the lien is renewed at every moment, and therefore a dead person is no better than a mentally incompetent person, and clearly one does not descend to his property when he is not obligated.

However, from there there is apparently evidence against our words, for the words of Mahaneh אפרים are a difficulty against those who hold that one descends to property, implying that they indeed do not hold this way. However, see in Mahaneh אפרים what he answered there (that we assess the intention of the mentally incompetent person that he is pleased that we support his family and perform the commandments of charity with his money. And see there further what he added on this. If so, according to Mahaneh אפרים’s explanation, in those views it is proven like our words, that when he dies one does not descend to property because the lien is no longer renewed. However, according to the plain meaning of the passage there, one indeed must say that a dead person is like a mentally incompetent person, and one descends to his property even after death—that is, that this is a regular lien like a debt.

And regarding charity vows, some hold that according to all views a lien on property is created, and we will deal with this at the end of the term.

There are two interesting exceptions to the picture drawn until this point:

• Mahaneh אפרים, Charity siman 1, innovates that regarding charity there is indeed a full lien on property exactly as with a debt, except that even with an ordinary debt, by strict law one does not descend to property but only in his presence, or one compels him to repay (apparently because this is a commandment of repaying a creditor), and only rabbinically did they institute, because of “locking the door before borrowers,” that one descend to property in order to collect a debt. According to this, one could say that regarding charity they left the law as originally was and do not descend to property, for there is no reason of locking the door. According to this, there is no difference at all between debt and commandment; in all cases this is a commandment and one does not descend to property.

This is an exception because here we have a situation in which there is a lien on property and nevertheless one does not descend to property.

• And there in Mahaneh אפרים he brought from a responsum of Rashba (and wrote that Beit Yosef brought it in siman 251, though I did not find such wording there, and perhaps this is an addition of Mahaneh אפרים) that he wrote that a poor person who seized the property of his relative acquired what he seized, while Rabbenu Yeruham, netiv 23, disagrees and holds that he did not seize effectively. Seemingly Rashba follows his own view that one does not descend to property, so how did Mahaneh אפרים determine that seizure is effective? It implies that there is a monetary obligation here, except that the religious court does not involve itself in it, and therefore if he acted first and seized, he acquires it. This is like the laws of robbery and bodily injury in our times, which are not adjudicated, but seizure is effective. And perhaps one can distinguish that regarding one’s son even Rashba agrees that one compels, though this is difficult. And Rabbenu Yeruham held that there is no monetary lien at all.

This too is an exception, but in the opposite direction: there is no lien on property, and nevertheless one descends to property. However, if as we explained, then there is in fact a lien on property here, except that the religious court does not adjudicate it.

The explanation for why the religious court does not descend to property in this case despite the existence of a lien appears to be that there is indeed a monetary lien here, but descending to property occurs only in order to restore money to its owner and restore the social order to its proper state, as in the case of a creditor who is not repaid. Here, from a legal standpoint there is a debt, but from a substantive standpoint there is no money that is not in the possession of its owner; that is, there is no problem in the social order. The lien created in this case is a result of the commandment to give charity, but at most it serves as a reason to compel and not to descend to property, especially since the commandment would not be fulfilled in that way. According to this understanding, not every lien leads to descending to property. If so, this exception shares something in common with the previous one: both disconnect the link between lien and descending to property. The implication of the lien’s existence is not descending to property but perhaps an obligation to pay from one’s assets even after death.

However, as we already mentioned, such an obligation does not appear in the halakhic decisors, and we explained this by saying that the lien is renewed at every moment. According to our words here, it follows that this lien has no practical difference at all, perhaps aside from the fact that one compels regarding charity even though it is a positive commandment whose reward is stated alongside it (for one does not descend to property, nor collect after his death). And perhaps according to this understanding one indeed also collects after his death, and this is according to the plain meaning of the Talmudic text in Ketubot regarding a mentally incompetent person (and not like Mahaneh אפרים’s explanation there), as explained above, and this still requires further examination.

How much and how one gives:

 

Main sources

Tur and Shulchan Arukh, siman 249. Maimonides chapter 7 law 5, and chapter 10 laws 4–14. Their sources are in the passages of the Talmud.

Main points for expansion

Here we are dealing with the fundamental question of how much one must give to charity from all his assets, and not with the question of how much to give in each case of a particular poor person (which is the subject of simanim 250–253).

In a case where the poor person has no one to help him, there is room to discuss that one should give him without a fixed limit (as the Shakh here wrote in se’if קטן 1, and Rema siman 250:1, and it will be explained there).

The three basic measures: one-third of a shekel, one-tenth of his assets, and one-fifth of his assets.

These three measures are presented at the beginning of the Tur and Shulchan Arukh and in Maimonides as three levels among those who give charity (as with terumah, and similarly to the Hanukkah lamp and the sliding-scale burnt-offering): the choicest manner of the commandment; an intermediate level; and an evil eye.

And one should discuss the relationship between the opening statement of Maimonides and the Tur and Shulchan Arukh—that if his means suffice, he should give according to the needs of the poor—and what follows—that if his means do not suffice for all the needs of the poor, he should give according to the three measures above.

This could be understood in three ways: 1. a wealthy person is not limited by these measures. All the measures were said only regarding one who is not wealthy. 2. the measures were said regarding every person, except that if one’s one-fifth exceeds all the needs of the poor, these distinctions have no point in his case. 3. a wealthy person is obligated to give more than this, according to what his means allow.

A practical difference between these possibilities is whether it is permitted (or even obligatory) for a wealthy person to give more than one-fifth of his assets to charity, since enough will remain for his livelihood. In practice this depends on the question whether a person is permitted at all to give more than one-fifth, or whether there is a prohibition in doing so (see below). There is also an inverse dependence between the questions: if indeed these measures were said only for one who is not wealthy, and a wealthy person may give more than one-fifth, then every person can decide that he counts as wealthy (the one who is happy with his lot) and give more than one-fifth while making do with what remains to him (and see the previous lecture where we discussed the question whether an indigent person who gives charity has a commandment or not—where it is possible that he has a commandment by virtue of “for me it is worth it,” meaning that he decides that the amount in his possession is enough for his needs, and therefore he is not indigent).

One should note the change of language between the Tur and Maimonides on the one hand, and the Shulchan Arukh on the other. In Maimonides and the Tur it is written thus: “And if his means do not suffice… he should give according to the extent of his means, and how much is that? He should give…” But in the Shulchan Arukh the words “he should give according to the extent of his means” were omitted. It appears from the language of the Tur and Maimonides that these measures themselves are “the extent of his means,” that is, like understanding no. 2. From the Shulchan Arukh there is no proof of this, and perhaps this itself is the reason for the omission. If so, it appears that the Shulchan Arukh’s understanding is like no. 1 or no. 3.

See on this in Ahavat Chesed vol. 2 chapter 19 se’if קטן 3–4 (and in note ** there), and all of chapter 20. Also in Nikdash BiTzedakah p. 51 onward. And see the article of Rabbi Gershoni in Kol Yehudah, from p. 581.

One-third of a shekel

This is the minimum measure. See its amount in Tziyun HaHalakhah 76–77, and the reason for it in Arukh HaShulchan siman 249:11. The estimate today is six and a half grams of pure silver.

The source is a verse in Nehemiah chapter 10 (see Bava Batra 9a). See Tziyun HaHalakhah 75 whether it is from the Torah. In the Talmud it appears as “A person should never refrain from giving…,” and so too it appears in Sefer Mitzvot Gadol, positive commandment 162. Maimonides wrote this and then added more: one who gives less than this has not fulfilled a commandment. It is not clear whether he means that he has not discharged the obligation of charity at all, or that it is not the choicest form of the commandment (and perhaps this depends on the law of half a measure in positive commandments; see Encyclopedia Talmudit, entry “Half-measure,” sec. 7). And the Shulchan Arukh wrote that he has not discharged the obligation of the commandment of charity. And in the Tur it says more strongly: “he has not fulfilled the commandment of charity at all.”

In practice one should divide the discussion between the question of the status of this particular act of giving—whether the commandment of charity is fulfilled by it—and the annual accumulated total. See responsa Beit Yitzhak, Orach Chayim siman 21, and Maharil Diskin vol. 1 siman 24, who say that even by giving less than a perutah’s worth one fulfills the commandment of charity. According to this, it seems clear that there are two laws here: the law of giving in the specific case at hand, and a general law to give a fixed measure from one’s assets (at least one-third of a shekel). This is the introduction I gave to my notes here on the topic of this siman.

The source for this is perhaps the difference between the prohibition and the positive commandment. The positive commandment is to give an overall sum each year, while the prohibition is not to harden one’s heart against a poor person who asks (see the opening lecture on the difference in Maimonides’ language between the prohibition and the positive commandment).

See in the Shakh that from here is a source for the custom of collecting charity every Monday and Thursday in the synagogue. Of course, part of the custom is also to give every Monday and Thursday (not only to collect). And one who knows about himself that he gives the proper amount even without this—it appears that even so, by virtue of the custom there is value in giving. However, according to the Shakh it appears that one must collect in the synagogue for the needs of the poor and not for synagogue needs, and it appears that nowadays people are not strict about this, and this requires examination.

Tithing of money

See lecture number 4.

One-fifth

The source for this measure is a rabbinic enactment (the enactment of Usha), see for example Ketubot 50a.

And the Vilna Gaon in Shenot Eliyahu to Pe’ah chapter 1 mishnah 1 (and similarly Maharam Schick YD siman 230) wrote from the Jerusalem Talmud that it is from the Torah (a law given to Moses at Sinai), and see Gilyon HaShas to Ketubot there.

And in responsa Hatam Sofer YD siman 229 he wrote that by Torah law one must give all money that one does not need for that day’s livelihood (not for a pension!!!), and in Usha they enacted to forbid giving more than one-fifth.

And in Maimonides’ Commentary on the Mishnah to Pe’ah it appears that in Usha they only lowered the obligation to give more than one-fifth, even when there are needy people, but that it still remains an act of piety to give.

Simply speaking, we have not found a measure of one-fifth with regard to the commandment to give, for the enactment of Usha was only to forbid giving more than that (and not to obligate giving that much). However, the language of the Jerusalem Talmud in Pe’ah there is: “In Usha they counted and decided that a person should set aside one-fifth of his assets for a commandment” (see Mahari Korkos chapter 7 law 5). According to the Babylonian Talmud, it seems that the choicest way of the commandment—to give one-fifth—is learned from the enactment of Usha, that the best thing is to give the maximum amount permitted by Jewish law. That is, this is not a measure within the commandment of charity itself; rather, since there is a prohibition against giving more, this is the choicest amount that can be given. See the book Torat Zera’im on Pe’ah there for what he wrote on this.

And the reason for the enactment is so that he should not need other people. At first glance, however, this requires examination: why should he need other people, for no person becomes poor from charity (see siman 247 and our notes there)? Especially difficult is that we are speaking of a person who wants to give more and we forbid him, not of someone whom we are coming to obligate to give more than one-fifth (though according to Maimonides in his Commentary on the Mishnah this is understandable).

And if we say that the enactment of Usha applies only to other commandments and not to charity, this is understandable. See Rashi in Ketubot there, who wrote explicitly that it deals specifically with charity (and for a commandment perhaps there is another measure; see Bava Kamma 9 and the commentators there). However, see Rema Orach Chayim siman 656:1 and the commentaries there.

Maimonides at the end of the laws of Valuations wrote that one should not give more than one-fifth, while here he did not write that (see Frankel on chapter 7 law 5). However, there he is dealing with commandments and not charity, and one could have said that he disagrees with Rashi, according to whom in charity one may give more. Usually, however, they explain there that Maimonides applies this also to charity (see Keli Hemdah, parashat Vayetze, sec. 4).

See Derekh Emunah se’if קטן 24 and Tziyun HaHalakhah there. In my humble opinion, his inference is not necessary, for the plain language of Maimonides here too is that one should not give more than one-fifth, except that one-fifth is the measure for a state considered as lacking the means to give. This depends on the understandings in the previous notes section, and requires examination.

And Ritva Ketubot 50a wrote explicitly that if one transgressed and dispersed more, “his righteousness stands forever” (and likewise the implication of Maimonides’ language in his Commentary on the Mishnah to Pe’ah there, that as an act of piety it is permitted). Seemingly, this is against the enactment of Usha. One can say that his intention is that charity is different, as we said above. Or one can say further that in Usha they only reduced the obligation, though this does not sound so from the language of the enactment.

And the later authorities (Acharonim) asked why, regarding charity where one transgresses the prohibition of “do not harden,” he is not obligated to spend all his money, as with every other prohibition (see Rema Orach Chayim there)?

See Maharil Diskin in his above-mentioned responsum, and Amudei Beit, laws of judges (brought in Frankel here). According to these responsa one should discuss cases where there is another prohibition here (such as “do not stand idly by your neighbor’s blood,” and see below here and in siman 252 regarding redeeming captives).

At first glance, every time a poor person comes, one should give him one-fifth of the assets if he needs that, and if another poor person comes afterward, one should give one-fifth of what remains, and so on (see Mahari Korkos chapter 7 law 5).

However, in the Jerusalem Talmud, cited in Shulchan Arukh 249:1, it appears that with one-fifth, as with the tithe, one gives one-fifth from the principal and afterward one-fifth from the profits. That is, this is a fixed obligation of a percentage of income and not of the total amount of money in his possession (each income is set aside once). It is therefore clear that the total charity he gives to the poor comes to one-fifth of his income, and not that to each poor person he gives one-fifth of what he has. If so, there is no room for the words of Mahari Korkos. However, Maimonides did not bring this, and this requires examination. It seems that there is a substantive dispute here in the understanding of the measures of charity: Mahari Korkos understood that one-fifth and one-tenth are a measure in the commandment of charity, and not an obligation to separate from income (as with terumot and ma’asrot). But the Shulchan Arukh holds that this is an obligation of setting aside, and one must ask whether this is a commandment that renders the produce “tevel,” meaning whether the money is forbidden for use without separation. See lecture 4. In practice it seems clear that the law is not like Mahari Korkos.

There are several circumstances in which it is permitted (and perhaps obligatory) to spend more than one-fifth. See Bi’ur Halakhah to siman 656 regarding more than one-fifth for a commandment, and six modes in Ahavat Chesed chapter 20 regarding charity (especially the sixth mode, which is very relevant to many of us—study it carefully there).

And one of the modes (the first) is when the poor person is in danger to life, such as saving a seriously ill person who needs urgent surgery or travel abroad. There, apparently, there is an obligation to spend all one’s money in order to save him from death, both because of danger to life (just as I desecrate my Sabbath in order to save the life of another), and also by virtue of not transgressing the prohibition of “do not stand idly by your neighbor’s blood” (see Shulchan Arukh Choshen Mishpat siman 426:1), for which one is obligated to spend all his money. So too the book Tzedakah U’Mishpat chapter 1 note 23 brings in the name of Rabbi Shlomo Zalman Auerbach (and see there that of course afterward one may collect from others). See there also what he brought from Havot Ya’ir responsum 146. And see further in my notes to redeeming captives (and in the index to Frankel, chapter 8 law 10). This is a very great practical difficulty—whether the fact that we do not do this is simply a transgression (and of course in cases where there is an option to place the burden on the public, both in terms of urgency and in terms of the public’s willingness to donate, it seems obvious that one may do so). Perhaps one can discuss this as in my notes to the beginning of siman 250—that the obligation is on the public and not on each individual, and there is no room to demand of any given individual why he did not do so. However, as is well known, the paradox reappears, stemming from the regrettable fact that every public is composed of individuals.

And in Ahavat Chesed chapter 20 se’if קטן 3 he wrote that one who has a trade or fixed business is permitted to spend more than one-fifth (apparently everything that remains from his monthly salary after living expenses). This has major practical relevance for us, who generally live from a salary.

And Rema wrote (in the gloss there) that a person may, at the time of his death, distribute to charity more than one-fifth (since he will not need other people because of this). See Birkei Yosef and Rabbi Akiva Eiger here, who discussed how much he may give in such a case. And Hekhmat Adam, rule 144 siman 12, wrote that it is not proper to distribute everything and leave his children empty-handed (at least if they need support). They discussed this by virtue of the prohibition of transferring an inheritance (see for example Hatam Sofer Choshen Mishpat responsum 151, and Pitchei Teshuvah Choshen Mishpat siman 282).

The deed and the one who causes it

Shulchan Arukh 249:5. Maimonides chapter 10 law 6.

For the reason of this, see Hekhmat Adam 144:14, and Derekh Emunah se’if קטן 20 and Tziyun HaHalakhah letter 31.

See Taz here in his dispute with the Perishah: whether the one who causes the act is greater than the one who does it by coercion, or than the ordinary doer (and see further Maharsha on Bava Batra 9a s.v. “great”). See Sanhedrin 99b: whoever causes his fellow to do a commandment, Scripture considers it as though he himself did it—implying like the Tur and the Perishah.

It is not clear whether the intention is one who coerces for charity or one who causes someone to give charity, and perhaps both.

See lecture 3 regarding coercion in charity. And Maimonides brought this law (?) together with the law of charity collectors (see Maimonides at the end of law 6), which implies that “causes” is in its usual sense, that is, compels. So too Taz understood the Shulchan Arukh. However, in the Tur and the Shulchan Arukh it is not necessary to say so; rather, “the one who causes” means the one who brings it about.

And on the Taz’s question against the Perishah, see Shakh se’if קטן 9 and Birkei Yosef there, and Tziyun HaHalakhah letter 31. See my note in the next section that one should not connect what is brought in סעיף 13 in the Shulchan Arukh to the words of the Taz.

See further on this matter in Einayim LaMishpat, Bava Batra 9a, letter 8 (note well: according to the distinction proposed above, his understanding in the Tur is neither necessary nor required).

Whether causing others to act is charity or acts of lovingkindness, and what the commandment or obligation is to serve as a charity collector. See Derekh Emunah se’if קטן 21, Netivot HaMishpat siman 72 se’if קטן 19, Imrei Binah Orach Chayim siman 13 letter 3 s.v. “and know.” It is recommended to consider whether there is any practical implication to the dispute between the Taz and the Perishah.

The manner of giving

See Tur and Shulchan Arukh 249:3–4. Maimonides chapter 10 laws 4–5.

One who gives not with a pleasant countenance has lost his merit. It does not say that he has not fulfilled a commandment, but that he has lost his merit. This implies that there is a commandment here, but the transgression he committed offsets his merits. This transgression is “your heart shall not feel bad” (see Shakh and Vilna Gaon). It seems that this is not a commandment fulfilled through a transgression, for the commandment is not based on the transgression. They simply happened together. At first glance this is difficult from the Sifrei cited in Rashi to Deuteronomy 24:19, that even if a coin was lost to him and a poor person found it, he receives reward for it. One can distinguish between fulfillment of the command and the actual performance of the commandment (see in Rabbi Elchanan Wasserman’s book Kovetz Ma’amarim, essay on repentance).

However, according to what we said above, there is no difficulty, for indeed he has reward for the charity, except that he is punished for “and your heart shall not feel bad,” whereas if a coin was lost to him, obviously there is no transgression, for his heart did not feel bad.

Whether giving in a way that his heart feels bad (he gives with a sour expression) is problematic also when he gives to the collector. See Einayim LaMishpat on Bava Batra 9a letter 8, who remarks on this briefly. And see Derekh Emunah se’if קטן 11, who discusses when he does not show the poor person the angry expression.

Everything that some halakhic decisors connected this law to what is brought in סעיף 13 in the Shulchan Arukh (law 14 in Maimonides) is not necessary. A grim face is worse than mere sadness (see Derekh Emunah chapter 10 se’if קטן 49). According to this, there is no proof from here against the Taz (as in Birkei Yosef above in the previous section, and Derekh Emunah here), and in my humble opinion this is the plain meaning. However, one should note why they did not list this as a ninth level among those who give charity. It appears that here there is already an actual transgression, and there is no room to count this as a level within charity. On the contrary, in my humble opinion all these commentators are difficult, for they connected this to “your heart shall not feel bad,” and according to this Maimonides listed as a level in charity an act that is itself a transgression. Perhaps this is the intention of the Vilna Gaon in se’if קטן 16, and it invites analysis.

One who appeases the poor person only with words without giving him charity. See Einayim LaMishpat 9b letter 4. One should discuss what commandment there is here, for from the sources in Einayim LaMishpat it appears that this is part of the commandment of charity, while seemingly this is specifically acts of lovingkindness. Perhaps there is here actual giving analogous to charity, and not like acts of lovingkindness, which are not giving but lending (except that according to this every act of lovingkindness by lending is also charity, for giving a loan is also a kind of giving as appeasement, and this requires examination. See my notes to the next section, where I will discuss lending).

Levels in giving

Maimonides in chapter 10 brought eight levels in giving charity, and the Tur and Shulchan Arukh in siman 249 brought them as well; see there. See Mahari Korkos s.v. “this I wrote,” who brought a different version of these levels, namely the version of the Tur.

The highest level also includes a loan. At first glance this is acts of lovingkindness and not a level within charity (especially since Maimonides counts the commandment of lending to the poor as an independent commandment—positive commandment 197). See my note at the end of the previous section. See references in the Frankel index on law 7, and in the opening lecture.

However, it is possible that Maimonides’ intention is not that this is actual charity, but that since he wanted to give practical guidance in giving to the poor, he wrote among the highest level also a loan, for indeed a loan is preferable to ordinary giving of charity even though these are two distinct matters (see Sabbath 63a: “Greater is one who lends than one who gives charity,” proving that these are two matters). So too it appears from Arukh HaShulchan here (see siman 249:14–15).

A practical difference is whether one may redirect charity funds to a loan (Ahavat Chesed vol. 2 chapter 21 in the final note *, and chapter 18 especially in the first note **).

This highest level concerns preventing dependence by means of a loan, as opposed to giving charity to one already in need. One should discuss whether this depends on the purpose of charity (see Einayim LaMishpat Bava Batra 9 letter 8 and the previous lectures).

Whether one can “offset” a higher level in charity by changing the amount—whether giving a large amount sadly is better than giving a small amount with a pleasant countenance. From the very hierarchy between laws 13 and 14 in Maimonides it appears that pleasantness with a small sum is preferable. See Be’ur HaHalakhah on chapter 10 law 14.

The difference between the secret chamber and one who puts into a public charity box (law 8 in Maimonides, and law 7 in the Shulchan Arukh): see Mahari Korkos, and Beit Yosef s.v. “and Maimonides wrote,” and Perishah there se’if קטן 10 (and according to the version of the Tur, indeed these two are not divided).

It is clear that all these levels depend on the various circumstances, for otherwise it is difficult why we find sages who acted according to the lower levels. See for example what Arukh HaShulchan 249:17 wrote on what Maimonides wrote in law 10 (“they sling behind them”) that nowadays one should not do so because of deceivers. So too one sees from the notes of the Shulchan Arukh himself at the end of law 7 and end of law 8 (and similarly end of law 8 and end of law 9 in Maimonides), that in choosing the manner of giving charity one must pay attention to the circumstances.

Laws 15–16 in the Tur and Shulchan Arukh regarding priorities in charity

This requires examination as to why these laws were placed here. Their source is from Maharik, and they are not found in the Tur. We will discuss them in the simanim dealing with orders of priority in charity.

Lecture number 4: Tithing of money

A. Introduction

In Maimonides chapter 7 law 5 and in the Tur and Shulchan Arukh siman 249 there appear three measures for the commandment of charity: one-third of a shekel, one-tenth, and one-fifth. Simply speaking, it seems that this is a category and measure within the commandment of charity. However, one should note that there is a difference between the three measures, for one-third of a shekel is a fixed sum, whereas one-tenth and one-fifth are percentages out of the total assets.

This difference can lead to the conception that one-tenth and one-fifth are something different from one-third of a shekel. Charity is given according to the needs of the poor, and at least one-third of a shekel per year must be given by everyone. One-fifth and one-tenth are a personal obligation, or perhaps even an obligation of the money itself; that is, one must separate such an amount from his assets and seek out poor people in order to give it to them. However, from Maimonides’ wording this does not seem so, and it appears that this is a category within the ordinary framework of charity, except that it is measured as a percentage of his assets.

In practice, one who studies Maimonides’ wording sees clearly that when a poor person asks a person for charity, then in a situation where he lacks the means to give (which is the situation dealt with in law 5), he gives up to one-fifth of his assets as the choicest fulfillment, or up to one-tenth for an intermediate eye. Maimonides opens the law with the words: “A poor person came and asked.” In the plain sense, this means one-fifth/one-tenth from his total assets, and not specifically from what has not yet been separated. This is a local measure for giving charity when a poor person comes and asks, for what practical difference does it make what has already been separated? The purpose is not to leave the giver too poor. This is not a commandment that renders the money “tevel,” meaning that the money requires separation; rather, it is a measure of how much to give to each poor person who asks.

Indeed, in the Tur/Shulchan Arukh, the fifth and the tenth appear in siman 249, which deals with the question of how much we must give from our total assets, and not how much to give to each poor person. The law of “a poor person came and asked” appears in siman 250. If so, specifically from there it seems that this is a general measure for giving from one’s assets. That is, from the Tur/Shulchan Arukh it implies that there are two laws: an obligation to give a fixed measure from one’s assets to charity, and an obligation to fill the lack of a poor person who asks. In Maimonides, by contrast, it seems that there is no obligation at all to give a fixed measure from one’s assets, and there is only the law of filling the needs of the poor.

However, as I pointed out in the accompanying pages, there appears to be a certain difference between the language of the Tur and the Shulchan Arukh, for in the Tur it implies that this is only a measure for determining what is called “his means do not suffice.” In the Shulchan Arukh, by contrast, it seems that this is the required amount to give when his means do not suffice to cover the needs of all the poor who turn to him.

And in the Tur and the Shulchan Arukh they added (at the end of the note): “This fifth of which they spoke: in the first year from the principal, and from then on a fifth of what he profits each year.” Here there is already clearly a conception of a percentage out of the assets, and in practice there is here almost a kind of obligation of separation from the assets. However, it is not clear that this is an obligation of separation, and it is possible that this is a measure in the commandment of charity, except that the measure is given in terms of percentages of the assets; see below.

Today it is customary to separate a tenth from one’s assets, analogous to the tithe of produce. That is, this is a kind of commandment that renders the property tevel-like. As if the assets require a separation of a tenth/fifth (perhaps even as a kind of “permit” for using them).[8]

B. The Tenth and the Fifth

The law of a fifth is from the enactment of Usha, and it is derived (Ketubot 50a) from our forefather Jacob, who said (Genesis 28): “And all that You give me, I will surely tithe to You.” And in Rashi (ad loc.): “Two tithes amount to a fifth.” And the Talmud there explained from the wording of the verse that the intention is not to give a tithe and then another tithe from the remainder (which in total does not amount to a fifth, like Rabbi’s decimals), but rather twice a tithe. And so it also appears in the Jerusalem Talmud, beginning of Pe’ah, and Ketubot chapter 4, halakhah 8.

It is interesting to note that in Ahavat Chesed, part 2, chapter 19 (39: note *, and see there), he brought that there is significance in giving twice a tithe and not a fifth. That is, a fifth is simply giving twice a tithe, and its basis is this very verse. That is, one does not give a tithe and then a tithe from the remainder, but one gives twice a tithe from the whole.

And in the Jerusalem Talmud there appears the expression that one should give “up to the amount of terumah and terumat ma’aser,” and the Vilna Gaon, Mahar”a Fulda, and others explained there that the intention is like terumah and terumat ma’aser together (for example, average generosity: 2/100 + 1/100 = 3/100, etc.).

However, in Pesikta Rabbati chapter 26 a source is brought:

“You shall surely tithe all” (Deuteronomy 14:22) – what is “all”? Even your money. Rabbi Shimon ben Lakish said in the name of Rabbi Yehudah son of Rabbi Chanina: They voted in Usha that a person should separate a fifth of his assets; what is the reason? Corresponding to terumot and tithes.

First, the source is from Deuteronomy and not from our forefather Jacob, and there is also a change at the end of the statement: “corresponding to terumot and tithes.” And it seems that this source holds that indeed we are speaking here of two tithes one after the other, meaning that one should separate 19/100 of the money and not a fifth. And so I found in Korban HaEdah on the Jerusalem Talmud, beginning of Pe’ah, that he wrote that “a fifth” is not exact, but rather the intention is as we said. And so too עולה from the Shitah Mekubetzet, Ketubot 50a, that a fifth corresponds to the two tithes of each year (first tithe and second tithe, or first tithe and poor tithe), and this also comes to 19/100.

And it seems that the Jerusalem Talmud did not bring a source from our forefather Jacob, and apparently learned like the Pesikta that the tithe of money is learned from the book of Deuteronomy. And there the verse is phrased “You shall surely tithe,” and according to the Babylonian Talmud’s argument, it indeed comes out here as 19/100. Only from the verse in Genesis, “I will surely tithe it,” is it proven that “I will tithe it” refers to the first tithe, and therefore it comes out to a fifth.

And in my notes to siman 249 I brought that some understood that the obligation of a fifth is from the Torah, while it is generally understood to be from a rabbinic enactment, and the verse is merely a scriptural support. And see there also the discussion whether there is an obligation to give a fifth (with a generous eye), or whether there is only a prohibition against giving more than a fifth (and this depends on the formulation of the enactment of Usha in the Babylonian and Jerusalem Talmuds).

Regarding the tithe of money, we find in various midrashim concerning the three Patriarchs that they separated a tithe (see Pirkei deRabbi Eliezer chapter 27 – regarding Abraham, and chapter 33 there – regarding Isaac; and in Da’at Zekenim from the Tosafists and the books Hadar Zekenim and Moshav Zekenim on the Torah by the Tosafists on Genesis 28:22, they explicitly bring an enactment of Jacob to separate a tithe, and their source is the midrash brought in Tosafot Ta’anit 9a below).[9]

And in Ta’anit 9a the Talmud learns that one tithes in order to become wealthy, and that there is permission to test the Holy One, blessed be He, in this matter (see our notes to siman 247). And there, in Tosafot beginning with “You shall surely tithe,” they bring a derivation of the law of the tithe of money from a similar verse (Deuteronomy 15):

“You shall surely tithe all the produce of your seed that comes forth from the field year by year” – I have only your grain produce, which is obligated in tithing; interest, commerce, and other profits, from where do we know? The verse therefore says: “all.”

And it should be noted that before us in the Sifrei this exposition does not appear. And in Torah Temimah on that passage (section 40) he wrote that there are several midrashim that have been lost to us, and this is from the Sifrei that our rabbis, the Tosafists, had before them. However, I saw in the name of Rabbi Yaakov Emden (in his novellae Kolan Shel Sofrim to Ta’anit, and in responsa She’elat Ya’avetz, part 2, siman 119) that Tosafot’s intention when saying “in the Sifrei” is “in my book [Talmud],” that is, in their version of the Talmud this midrash appeared.

And indeed we find other medieval authorities (Rishonim) who learned from the Talmud there the law of the tithe of money, such as in Or Zarua, laws of charity, siman 13, who wrote that from this Talmud passage emerges an obligation of the tithe of money. And it seems that according to the view that the permission to test the Holy One, blessed be He, was said also regarding charity, and at least regarding the tithe of money (see my notes to siman 247), they apparently understood that the Talmud there deals also with the tithe of money and not only with the tithe of produce.

Simply speaking, it appears that we are dealing here with a Torah law that obligates each person to separate a tithe from his money and profits, similar to the tithe from produce. However, according to the overwhelming majority of halakhic decisors, this is at most a rabbinic law, or merely a pious custom, and the verse is only a scriptural support, and this is not the place to list them all (see the book Ma’aser Kesafim).

We find some who derived a fifth from Genesis and Deuteronomy, and likewise some who derived a tithe from Genesis and Deuteronomy, and one must discuss why a fifth and a tithe are learned from different verses, and what practical difference there is. Regarding a fifth, we found a practical difference whether it is a fifth or 19/100; however, regarding a tithe, it seems that there is no practical difference at all.

The accepted assumption of all the halakhic decisors and commentators is that a fifth and a tithe are two measures for the same law, as we saw above in Maimonides and the Shulchan Arukh, and therefore below we will assume this.

Now, in the Jerusalem Talmud, beginning of Pe’ah:

Rabban Gamliel bar Ininua asked before Rabbi Mana: What? A fifth every single year—within five years he will lose everything? He said to him: At first, from the principal; from then on, from the profit.

From here the halakhic decisors learned that the law of a fifth and a tithe is initially from the principal and the rest from the profits, as appears in the above Tur/Shulchan Arukh. However, in Maimonides this law does not appear.

And Mahari Korkos on chapter 7, halakhah 5 (see my notes to siman 249 on the law of a fifth) commented on this, and brought from the words of Maimonides in his commentary to the Mishnah on Pe’ah there, where he wrote:

And the explanation of this halakhah according to me is as follows: when a person sees captives whom he is obligated to redeem, as the Holy One, blessed be He, commanded, or hungry people or naked people whom he is obligated to satisfy or clothe their nakedness, as it says, “sufficient for his need”; and its meaning is that he is obligated to complete their lack, when what they lack or their redemption is less than a fifth of his wealth, or equal to a fifth of it. But if he would need to give them more than a fifth, he should give only a fifth and refrain from giving more, and there is no sin upon him if he refrains from completing all that he would need to give them, because their needs are more than a fifth. But if none of what we mentioned happened to come before him, he should spend the fifth from profit, not from principal, and give it for the needs of commandments.

And it implies in Maimonides that there is a law to give first from the principal and afterward only from the profit; however, all this is only when poor people have not come before him. But if a poor person comes before him, then he gives him according to his need up to a fifth of his assets.

And Mahari Korkos there also brought from the words of Maimonides at the end of the laws of valuations, where he brought the enactment of Usha, and explained that Maimonides’ view is that when a poor person comes before him, he is obligated to give him sufficient for his need up to a fifth of his current assets. And if another poor person arrives, he must give him a fifth of what remains, and indeed that is the plain meaning of Maimonides’ wording in the laws. But one who disperses his money for commandments must give a fifth once; that is, it is like a tithe from money, and this is the subject of Maimonides’ words at the end of the laws of valuations.

And from Mahari Korkos’ words it appears that with respect to the poor there is no concern that he will exhaust his money, unlike commandments; therefore there is no concern that he will give each one up to a fifth of his money. And the explanation of this is: 1. Poor people are not a constant factor, unlike commandments, which always obligate him. 2. Regarding the poor, so long as he has money, he must give them to fill their lack, and we do not worry about his own condition—for how is he better than they are? Once he no longer has, he is indeed exempt from giving, as is the law of a poor person who is exempt from charity (aside from a third of a shekel).

According to Mahari Korkos’ understanding, it appears clear that the tithe, or fifth, are obligations of separation from one’s assets, as in the Shulchan Arukh’s view; however, they are also measures of giving to a poor person who approaches him. Every time a poor person approaches him, he must give him up to a fifth of his assets, even if he has already separated a fifth from these assets previously. And indeed it seems that this is the plain meaning of Maimonides’ intent in the laws of gifts to the poor, and this is a unique position. Regarding the obligation to give a fifth, or a tithe, it seems there is no clear source in Maimonides for this, and his words at the end of the laws of valuations also deal with a ceiling on giving and do not establish an obligation to give. The plain meaning of Maimonides is that there is a rabbinic ceiling on giving, up to a fifth. His words there are formulated as permission: if he gives, he should not give more than a fifth.

And in the Tur we saw that the measure of a fifth or a tithe is a maximum measure for giving to poor people who ask. And it implies from his words that there is no separate obligation of giving a fifth.

And in the Shulchan Arukh it appears that there are two laws: there is an obligation to give a fifth (or a tithe) from one’s total wealth, and there is an obligation to fill the lack of a poor person who approaches him. However, if he has already given a fifth, he is under no obligation to give more than that, and perhaps there is even a prohibition in doing so (see my notes to the accompanying page, siman 249).

If indeed a fifth and a tithe are rabbinic measures, or a good custom, as the majority of halakhic decisors hold, then it is clear what the source of the two laws is: a Torah law to give every poor person who approaches according to his need; and a rabbinic law not to give more than a fifth of his accumulated assets in total.

According to the view that a fifth and a tithe are Torah laws, it stands to reason that they are similar to the law of the tithe of produce, and then this is an obligation of separation from the assets and not merely a maximal measure for giving to a poor person who approaches. Therefore, it appears clear from Maimonides that a tithe and a fifth are indeed rabbinic (or customary) maximum measures, and in practice there is no obligation to give this amount from one’s assets if poor people have not approached him.

And in the Tur/Shulchan Arukh it is somewhat difficult, for he brought that the measure of a fifth is calculated cumulatively (in the first year from the principal and afterward from the profits), and this implies that it is indeed a measure of an obligation of separation. If this were only a maximum measure for giving, it is not clear why to calculate it this way. After all, he is obligated to give poor people sufficient for their needs as long as he can, and his ability is not measured by how much he gave but by how much remains to him. Therefore, it seems simply that according to the Shulchan Arukh this is indeed an obligation of separation. If so, there is an obligation to give a fifth or a tithe from one’s assets to the poor, except that the form of giving is to each poor person who asks, up to this ceiling. And according to this explanation, it is possible that this is a Torah obligation.

This explanation in the Shulchan Arukh (and perhaps only in the Rema) is found in the clearest form in the Taz, siman 331, se’if katan 32, and this is also the implication of the Rema there, who said that anyone who observes the poor tithe also observes the tithe of money, and it is a full obligation. Therefore it is also clear that what the Rema wrote at the beginning of siman 249, that one should not give from his tithe money for something that is an obligation upon him, follows his own line of reasoning; and see there in the Taz, who detailed this, and he too follows his own approach.

And see there in the Taz, siman 331, who brought from the Bach that it is only a custom, and he challenged him from the Shulchan Arukh in siman 249 that it is a complete obligation. And it seems that the Bach explains that a fifth and a tithe are a ceiling for giving and not an obligation of separation on the money; rather, that is simply the way to calculate it. That is, according to the Bach, a person who gave a fifth, or a tithe, may say to poor people who approach him that he no longer wishes to give them, but he is under no obligation to give at that rate. And this also appears clearly to be the opinion of the Tur, as explained. However, in the Shulchan Arukh there is room to discuss whether he agrees with the Taz or with the Bach. And the halakhic decisors wrote that according to the Bach, the tithe of money is part of the laws of charity, and therefore one may spend it also on things that are obligations upon him, unlike the Taz (see Tzedakah U’Mishpat, chapter 5, halakhah 2, note 19). However, some wrote that even according to the Bach, once he adopts this custom, its framework is like that of the Taz (and the Taz himself appears to have understood that the Bach did not hold so).

And above we raised the difficulty of how the Tur/Shulchan Arukh establish such a calculation for the ceiling of giving, since it is not a calculation of the giver’s condition but of how much he has already given. This method of calculation is more suited to the approach that understands there is an obligation of separation on the money, and it is difficult according to the Bach and the Tur.

And one must say that the approach of the Bach and the Tur assumes that the obligation to give is based on an assumption of as equal participation in the burden as possible. That is, a person is exempt from giving if he has given enough, and not only when he has nothing. The assumption is that a person should not have to bear the burden alone. This is literally the difference between socialism and liberal capitalism. According to this approach, a person who has acquired great wealth has no obligation to distribute it to the poor more than one who acquired less. They should give the same proportion of their assets (not the same sum). This is exactly the differential-taxation method practiced in a social-democratic, or capitalist, state today. And as we saw in the Tur, it is clear that this is his approach (that there is no obligation to give a fifth/tithe, and this is only a ceiling for the obligation of giving).

In practice, Maimonides’ approach according to Mahari Korkos reflects an almost communist position: whoever can should give until he has no more. However, this is not actual communism, since there is no real obligation here but rather a decision whether he wishes to give generously or moderately. And furthermore, there is no actual redistribution of the assets here, only giving to one who needs. In any case, this is strong socialism. The Shulchan Arukh’s approach according to the usual explanation (the Taz), namely that there is an obligation on the assets in addition to the obligation toward each poor person, is not related at all to the question of socialism and capitalism. And the interpretation of the Shulchan Arukh saying that there is no obligation of separation at all, but rather an obligation to give to the needy whose ceiling is calculated according to a percentage of accumulated assets (the Bach), is a social-democratic approach. Again, there is no actual obligation here but the person’s decision, since he can also decide to give stingily, and therefore this is not actual socialism.

According to the Taz, it stands to reason that the tithe of money is truly a commandment that renders property tevel-like, meaning that permission to use one’s money is given only after a tithe/fifth has been separated for the poor, analogous to the tithe of produce (and see my note above that this is what the Maharil wrote). According to the Bach, this is a custom, and even then one must discuss whether the custom is in the framework of tithing or in the framework of the measure of giving to charity.

From the Talmud in Ketubot it appears that the explanation of the law of a fifth, formulated negatively, is lest he come to need people. It stands to reason that here the calculation is not according to principal and profit, but an objective fifth, since a person’s condition does not depend on how much he separated; therefore it is clear that the Babylonian Talmud did not bring the Jerusalem Talmud’s method of calculation. And this appears to be Maimonides’ view, and therefore it is again proven as we said above (not like Mahari Korkos), that for Maimonides the enactment of Usha is negative in essence. There is no obligation to give a fifth, only a prohibition to give more. By contrast, in the Jerusalem Talmud the formulation is positive, and therefore it is clear that the calculation is according to an obligation of separation from total assets. And this is probably the Taz’s view. The Bach and the Tur apparently understood that the method of calculation defines a ceiling for giving, meaning that they combine the Babylonian and Jerusalem Talmuds.

It is important to know that, in Jewish law, many halakhic decisors base the obligation to separate a tithe of money on the obligation to preserve a custom, and on the obligation to fulfill a vow (for one who separated once or three times, according to different approaches). See for example responsa Chavot Ya’ir siman 224 and Teshuvah MeAhavah part 1 siman 87 and others, who discussed a vow. And see also She’elat Ya’avetz part 1 siman 6 regarding obligation by force of custom. Therefore the halakhic decisors wrote that anyone who begins to separate should say that he does so without a vow (and so too in Ahavat Chesed part 2 chapter 18, se’if 2).

It follows that the obligation of the tithe is Torah-based according to very few halakhic decisors; according to some it is rabbinic; and most hold that there is no obligation at all in this matter. In any case, there may be an obligation by force of custom (“Do not forsake the teaching of your mother”), and once one began to practice so, he is also obligated by force of a vow. It is important to understand that even according to the Bach, it is possible that the framework of tithe and fifth is like that of the Taz; only the root and force of the obligation are different (although the Taz apparently did not understand him that way).

• The laws of the tithe of money

What is obligated in tithing. How much is given:

In practice, it is accepted that a tithe is an obligation to give a percentage of one’s assets. In the first year from the principal, and afterward from the profits.

And the halakhic decisors wrote that people who are supported by someone who himself lives from charity (parents, or kollel support), it is proper that they give the tithe to the one supporting them (for poor people can exchange charity), since it makes no sense that they should receive charity for themselves in order to pass that charity on further.

Every sum one receives is obligated in tithe. This includes inheritance, a found object, and gifts. A loan does not need to be tithed.

One who receives on condition that he not tithe cannot change from the giver’s intent (see Choshen Mishpat siman 241, halakhah 5). However, if he has income from another source and has enough for his livelihood, he must tithe correspondingly.

Even one who received money that had already been tithed is obligated in tithe. This is not similar to produce, where one who receives it already tithed is not obligated, because money, each time it is given, is like new growth from seeds. Produce is obligated in tithe as an object, but money is obligated in tithe as the person’s money. Therefore, under new ownership, it is new money.

When one receives items that are not actual money, the custom is not to tithe corresponding to them. We have not found anyone who tithes when he eats at another person’s table, even though logically he should, since he is saving money by it. And for objects that he would not have bought were it not for the gift he received, there is no need to tithe. See Tziyun HaHalakhah se’if katan 67, who brought from the Chazon Ish that if one receives an object, he need not tithe; and if one receives money in order to buy an object, the matter depends on whether the money was transferred to him or whether he merely serves as an agent to make the purchase, in which case he is exempt from tithe. And some wrote that there is no need to tithe even if one receives money for the defined purpose of buying a certain thing.

And it seems logically that one should distinguish between objects that are in the category of “asset,” such as an apartment or land, and objects that are in the category of household implements. The former are money’s worth, and are obligated in tithe under the rule that something worth money is like money. The latter are not really money’s worth, and generally are also not marketable and cannot be sold. However, if he would have bought them even without the gift, it seems that he is obligated to tithe corresponding to them. Regarding a car, one can discuss this, since it is marketable. However, there are large price differences with respect to it, and therefore it seems that beyond its use, only when he sells it should he separate tithe from what he receives (of course, only if he received it as a gift, or it was bought with money that was not tithed).

Some wrote that when one receives an apartment or land, he is not obligated to tithe corresponding to them; rather, he should tithe according to a reduced rental value (as though he enjoys rental value from the land). When he sells the asset, then he should tithe from the money he receives. It is clear that if he rents out the asset, he is obligated in tithe from the full sum of the rent.

One who buys an apartment from tithed money is not obligated in this; however, if he rents it out, he becomes obligated in tithe from the rent he receives.

The custom is that one who receives an apartment and household items (and even money) for a wedding does not tithe corresponding to them. The reasoning for this (at least regarding “assets,” or objects he would have bought even without receiving them as a gift) is not clear. However, according to the view above that gifts of objects are not tithed, or even money for purchasing objects, this is understandable. Furthermore, according to most opinions, tithe is only a custom, and therefore since the custom is not to tithe wedding gifts, he is again not obligated in this. In any case, this is at most a rabbinic-level doubt, and one may rule leniently. From the standpoint of custom, which there is an obligation to preserve from the words of the prophets/writings, perhaps its doubt should be ruled stringently. From the standpoint of a vow, the matter depends on what he accepted upon himself: if he accepted upon himself to conduct himself as those who hold that one must separate according to the law, then we return to the discussions above.

Any expense he has that serves to generate the profit may be deducted from calculating the profit. For example, repairs in an apartment that he rents out, travel expenses to work, and some say even babysitting (if she would not have hired one had she not gone to work) may be deducted from the salary obligated in tithe. It is important to note: ordinary living expenses, such as food and clothing, etc., which ostensibly also serve him in order to live and work, cannot be deducted from the salary. The reason is that he needs to live in any case, even if he did not go to work. Only expenses required for generating the profits themselves may be deducted from them.

The later authorities (Acharonim) wrote that one’s own labor for the sake of the profit cannot be considered a deduction from the profit (see Tzedakah U’Mishpat chapter 5 note 32).

For this reason also, a woman who goes out to work and hires a babysitter does not take into account that her work is easier because of it; rather, she deducts the cost of the babysitter from the profit (the salary).

With respect to indexation differentials, one can discuss whether they count for purposes of tithe, and contemporary halakhic decisors disagree about this. Some wrote that it is like one who bought merchandise and its price rose while in his possession, where we do not find that he must tithe it. However, it is possible to view this as income, since although his purchasing power did not increase, had he not invested the money, he would not have received the indexation either. That is, this is a kind of profit.

So too regarding currency depreciation.

And regarding interest on a savings plan, it seems that one should tithe, at least the part that is real interest (beyond nominal indexation). Since it is difficult to track each portion of the money, whether it has already been tithed, and there are investments that also incur losses and alternating gains, and there it is certainly hard to track, the recommended course in such a case is to deposit untithed money into the plan/investment, and any sum withdrawn from the plan should be tithed before use.

Some wrote that one may deduct inflation differentials from the profit obligated in tithe (Igrot Moshe, Yoreh De’ah part 2 siman 114). For example, a house bought for a thousand dollars and which rose in value, and after some time he sold it for two thousand—then there are a thousand obligated in tithe. If the index rose during that period by 100 percent, he is not obligated in tithe (that is, everything is determined by the purchasing power of the money and not by its nominal value). However, in Tzedakah U’Mishpat (chapter 5 note 31) it was written that according to this view, regarding money as well one deducts indexation differentials from the index (and there is discussion whether there is appreciation and depreciation in money).

National insurance, health tax, and pension funds may be deducted from tithe; however, at the time of receiving benefit from these funds, it seems that he must tithe. The same applies to business insurance (which is exempt from tithe; and the later authorities wrote that even when receiving the insurance payout for damage that occurred to him, this is only filling a loss and not profit, and is exempt from tithe. Tzedakah U’Mishpat chapter 5 note 37. According to this, the same would seem to apply also regarding health insurance, though this still requires examination).

Regarding taxes, this is an extremely complicated question. In principle there are three possibilities of treatment: to ignore taxes and separate from the full salary; to separate only from the net amount (the difference is the tithe on the tax); to calculate the taxes themselves as part of the tithe (that is, the entire tax payment is payment of tithe). For this purpose it is important to distinguish between two different questions: 1. Are the taxes part of his salary, regarding the basic amount obligated in tithe? 2. Is paying taxes itself a purpose that counts regarding tithe? The answers are independent. The practical difference is for a self-employed person, where there is more room to say that the taxes are part of his salary; however, the question whether tax payments qualify as tithe is no different than for a salaried employee.

The Taz in siman 249 se’if katan 1 brought from the Talmud in Bava Batra that a tax that the nations of the world take by force is considered charity (from the verse “and your oppressors [shall be] righteousness/charity”). And the Taz wrote that despite this, one cannot pay it from tithe money, since that would be paying his debt from charity (and see there, where he wrote this also regarding supporting his minor children). And Eshel Avraham wrote on the Taz that even according to his words, one may deduct the tax from the amount obligated in tithe (like pe’ah, which is exempt from tithing, even though it cannot be considered tithe because it comes as an obligation).

What emerges from the Taz is that payment of taxes is in the category of charity, but it cannot be paid from tithe money. Therefore the amount obligated in tithe is the salary excluding the taxes (for these are charity), but the taxes themselves cannot be considered tithe (like the middle level above).

Regarding the taxes of our time, which are taken for services and are not in the category of coercion by gentiles, the assumption is that they are in the same state as the taxes of the Taz. That is, they are not part of the salary; rather, the net amount is the salary.[10] If indeed the salary were the gross amount, it would not be possible to exempt the tax from tithe (“withholding tithe at source”), since here he is paying his debt with tithe money (which, at least according to the Taz, is forbidden).

There is a claim that tax payments are in exchange for services that he receives, and therefore he cannot deduct them at all from the amount obligated in tithe. However, against this the halakhic decisors wrote (see Tzedakah U’Mishpat chapter 5 note 36) that even one who does not pay those taxes benefits from those same services.

As for the second question, some wrote that the tax payment itself is not only exempt from tithe (meaning that the salary is calculated after deducting the tax), but the payment itself counts as tithe. For example, when one earns a salary of 2,000 shekels and 1,000 shekels are deducted for taxes. In practice it is assumed that the amount of 1,000 shekels remaining net in his hand is obligated in tithe. Those who are lenient claim that in reality he earned 2,000 shekels and has already paid 1,000 shekels as tithe (not only is that thousand exempt from tithe; they themselves are tithe), and therefore other sums may be exempt from tithe because of this payment.

The reason for this is that payment for public needs is in the category of charity, and therefore may be paid from tithe funds. It is important to emphasize that there are opinions that even public needs that are optional matters are in the category of a commandment, and giving for them is in the category of charity (see for example Taz, Orach Chayim siman 153 se’if katan 2, and responsa Chatam Sofer, Yoreh De’ah siman 220 and siman 244).

However, in practice it is accepted that since the tax comes as an obligation, it may not be paid from tithe money, and its status is like the taxes in the above Taz.

And according to this, it seems that even the part of taxes that goes to charity (for the poor and for support of Torah and commandments) cannot be deducted from the tithe amount. Regarding deducting it from the profit obligated in tithe, its law is like the rest of the tax (which does not go to commandments).

There are situations in which a person receives tax refunds on charitable donations, and one must discuss what to do in such a case. For example, a person earned 2,000 shekels and paid 1,000 shekels in income tax. Later he donated 100 shekels to charity, and he receives a refund of 50 shekels, as if he had earned 100 shekels less in salary (according to a marginal tax rate of 50%). There are several possibilities under discussion in such a case: 1. To return the entire 50 shekels to charity, since this is an amount the person was obligated to give to charity, and it is as though he did not give it. 2. To take it all for himself, since this is a refund on tax payments that were already tithed.[11] 3. To tithe the amount he received in the refund as in the case of new income, that is, to add 5 shekels to the tithe as though he had earned 1,050 shekels net. 4. To treat that month’s salary as though it had been 1,900 shekels, as the income tax authorities treat it, that is, to reduce by 5 shekels the tithe that was given.

And in Tzedakah U’Mishpat note 36, under the heading “Birkhei,” it was written in the name of later authorities that he may take it all for himself (like possibility 2). However, it seems that this is only according to the approach that pays tithe on gross income; but as we concluded in practice, he pays only on the net, or they follow the understanding that there is no obligation of separation (see the note above), and this too we rejected in practice. Therefore we must choose among the other possibilities. Possibility 4 is also unreasonable, since the accounting treatment of income tax is not relevant to the question of what amount he actually received. The decision between possibilities 1 and 3 appears to depend on the status of the tax payment and the refund: is this called a retroactive refund of the tax, as though he had never paid it at all (a reduction in the amount of tax), or is this a refund of his payments for charity from the state treasury (except that it is done only on condition that he paid enough tax), or perhaps state participation in the donation? There are arguments in both directions, since the refund is given only to one who paid tax, and therefore it seems that this is a refund and not a gift from the state. On the other hand, it seems that the refund is not automatic but requires an approval process, and the state decides for which expenses there is a refund (the benefit is not entirely under the donor’s control), meaning that the money is already in its ownership and it decides whether to return it. From the last consideration it emerges that the money was in the ownership of the state and the refund is from its treasury, and not retroactive reimbursement. Therefore the person should pay tithe on the amount of the refund, and not the whole amount; that is, the law seems to follow possibility 3.

If one has two businesses, with profit in one and loss in the other, or in the same investment he profited and later lost, one must discuss how to pay. Seemingly every profit becomes obligated in tithe even if he later loses it, and therefore the matter depends on the unit of time by which tithes are calculated. Generally it is accepted that, as with the tithe of produce, the unit of time is a year (so too regarding taking gifts to the poor from the field and vineyard). This is also indicated by the plain wording of the Tur/Shulchan Arukh at the beginning of siman 249, who explicitly wrote the law of the Jerusalem Talmud that in the first year he separates a fifth from the principal and in each subsequent year from the profit. In any event, the halakhic decisors wrote that he should set a time for making the tithe accounting (for salaried earners it is natural to set each month, although one may separate from the salary each month and for the rest make an annual accounting).

Some say that one must separate the tithe of money exactly and not by estimation, and therefore he should make a precise calculation (and certainly there is value in this, as Ahavat Chesed wrote there in chapter 19 se’if 3 in the gloss, that one should separate an exact tithe, and even if he wishes to separate more, he should give it separately as distinct charity. And he wrote there that even a fifth should be separated as two tithes). However, see Pitchei Teshuvah siman 249 at the end of se’if katan 2, who brought a dispute about this.

The halakhic decisors wrote that if it becomes clear that he separated more or less than he should have, he may complete it or offset it in the following period (see Ahavat Chesed there, who brought two opinions on this, and the practice is to be lenient). And this depends on whether the tithe is truly a commandment that renders property tevel-like or only a personal obligation to separate.

Some have the custom to dedicate to charity and to the poor a tithe of time (a tenth of their time), and I have not presently found a source for this. In light of this, it is interesting whether there are additional resources of a person from which one can define an obligation of tithe.

For what purposes one may give from tithe money:

The fundamental issue is what charity is, and what the priorities within it are; this will be discussed below in the following simanim (mainly 251–252). However, regarding tithe there is an additional issue, namely whether one may give it for something obligatory (above we connected this to the dispute between the Taz and the Bach).

However, there is another possible practical difference between charity and tithe regarding gifts that are not money (= gemach / interest-free loan acts; see the introductory lesson regarding its definition and relation to charity). Two examples are a loan and physical acts of kindness. Regarding effort, we saw above that it is not deducted from tithe (though logically it seems that a professional who gives work hours in his area of expertise is different, and can count this as tithe. For him, a tithe of time is a tithe of money). Regarding a loan to a poor person, which for Maimonides is a superior commandment of charity, there is a question whether one may lend from tithe funds. Simply speaking, it seems that this indeed is a commandment of charity, but it may not be done from tithe funds, and so Ahavat Chesed, part 2, chapter 18 concludes. However, see there, where he suggests that according to Maimonides perhaps he also fulfills the obligation of tithe thereby (see there in the gloss), and this does not seem correct.

Giving to a gemach that engages in lending certainly seems able to be done from tithe funds, since this is an actual gift (to the gemach, not to any particular poor person). However, according to the view that from tithe money one may give only to charity (see immediately below), one must discuss whether gemach is charity or not. According to the view of Maimonides and the Tur/Shulchan Arukh it would seem that it is (see our notes to siman 249), since they counted a loan as the highest form of charity. And according to one who holds that a loan is a different commandment, it depends on the question whether one may give tithe for a commandment that is not charity.[12]

Now the Rema, at the end of the note, wrote in the name of Maharil that one should not do with his tithe a commandment matter such as candles for the synagogue, but should give it to the poor. And the Shakh and Taz there wrote that Maharam disagrees and holds that only something obligatory, or perhaps something for which his means do not suffice without tithe funds, or which he simply would not do without the tithe, may not be given from tithe money.

And in Be’er HaGolah se’if katan 5 he wanted to explain even Maharil like the Taz, though in the wording of the Rema this is strained. The plain meaning of the Rema appears to be that his intention is to say that from tithe one gives only to the poor and not to other commandment needs, regardless of whether they are obligatory or optional and whether he would do them without the tithe. According to this, the question whether to give for something obligatory is not discussed at all in the Rema, and perhaps he is like the Taz, except that he adds that tithe is only for the poor.

And the Chatam Sofer, Yoreh De’ah siman 231, indeed explained in Maharil and the Rema that the basis of the law is because the tithe is the poor’s money, like other gifts to the poor, and therefore he cannot take and give for another commandment a sum that is not his own (see lesson no. 3 regarding charity as debt and lien in charity).[13]

It seems that according to the opinion of the halakhic decisors that tithe is a custom and not an obligation, or that it is in the category of a vow, a person may stipulate at the outset of adopting the practice for which needs he gives tithe.

In practice, the custom is that something obligatory is not paid from tithe money.

Regarding one’s relatives, his minor children, and even himself when he is needy, some wrote that he may give from tithe (for these are the laws of priority, as we saw in the previous simanim). However, some questioned this, and therefore it is proper not to give to oneself and one’s relatives. And this apparently requires examination as to the reasoning, for if indeed this is the highest form of charity, and it is for the poor, then why not give from tithe money? It seems that such giving is indeed in the category of charity, but it resembles something obligatory, since in any event he will support himself, his parents, and his children.

And it was further written that if his relatives are not poor, it is preferable to give to poor Torah scholars. And in the midrashim it appears that the primary institution of the tithe of money was for this purpose (see Ma’aser Kesafim p. 5 siman 5).

Books that one buys for himself—the custom is that one who buys them from tithe funds should make them available to the public.

Public needs that are not a commandment, the halakhic decisors wrote that one may give from tithe funds, provided they are not obligatory (like taxes); see our words above.

A commandment that he would not have done without tithe funds—some had the custom to do it with tithe money, such as buying an aliyah in the synagogue. And some wrote that only what he gives beyond what he had initially wanted to give for it may be given from tithe.

Tuition for one’s minor children should not be paid from tithe funds, since it is a debt upon him. And if he wants to add for the teacher for the benefit of the child’s learning (or as charity to him), he certainly may. Perhaps it is also permitted to hire a better teacher, or an additional study partner to learn with his son, from tithe funds.

And regarding the rest of the laws, see Ma’aser Kesafim and Tzedakah U’Mishpat chapters 5 and 6.

Regarding kollel fellows and yeshivah students whose parents support them, whether they are considered poor, and the practical difference whether they are permitted to take charity and whether they themselves are obligated in charity, see Bi’ur HaHalakhah chapter 9 halakhah 13, s.v. “If he had,” and Tzedakah U’Mishpat chapter 2 note 10.

Missing from the sheet distributed last week: the discussion of tax refunds on charity. The note on a tithe of time. The discussion of gemach and loans as modes of paying tithe. Kollel fellows.

 

 

How much it is appropriate to give to each and every one:

 

Main sources

Tur/Shulchan Arukh siman 250. Maimonides chapter 7 halakhah 1 and halakhot 3–4 and 7–8. Their sources are from Talmudic passages.

Main points for expansion

This siman deals with the question of how much it is appropriate to give to each type of needy person (as distinct from siman 249, which dealt with the question of how much each person should give from his wealth to charity in general). The discussion of whether to give a lot to one poor person or a little to many poor people is also not our concern here (it will be discussed in siman 257 halakhah 9), because it deals with the question of how a particular person should distribute the sum of charity that he wishes (or is able) to give. Here we deal with the question of how much each type of needy person should receive (and therefore, as we shall see, some explained that this siman applies only to administrators of charity funds and not to a private individual; see Rema end of the note).

The status of the precise measures in this siman

See Shakh se’if katan 3, who wrote that everything depends on what is appropriate in that place and time. And see Shulchan Arukh siman 253 halakhah 2, who inclines this way regarding the definition of a poor person fit to receive charity. And see the Tur 253 there, who elaborated that everything depends on place and time. See Beit Yosef there, and in the Vilna Gaon here references to medieval authorities (Rishonim) who wrote this.

And it should be noted that regarding the poor tithe they established a measure of 200 zuz, and there are discussions in the Talmud on the assumption that this is a precise amount (a poor person who has 199 zuz, and the like; see for example siman 253 halakhah 1). If everything depended on place and time, apparently there would be no room at all for such discussions. Therefore this requires examination (especially regarding the poor tithe of produce). And it is possible that indeed everything depends on place and time, but the Sages (the religious court) must establish in every place and time a fixed measure for defining a poor person, and this measure obligates everyone. In the time of the Sages this measure was 200 zuz, but that specific amount is not itself binding.

It also requires examination whether the Tur and the Shulchan Arukh, who wrote “and some say” so, mean to say that there is a dispute in this matter (that some say everything depends on time and place, and some say not). From the plain meaning of their words, it seems not. However, from the very fact that they brought these measures, it appears that there is room for the argument that these measures are binding (by force of the principle that when the reason ceases the enactment does not cease; and one could analyze whether that applies here, but this is not the place). And Maimonides brought these measures simply and said nothing about it (see chapter 7 halakhah 8 and chapter 9 halakhah 13, and Hilkhot Ishut chapter 20 halakhah 1 and chapter 13 halakhah 1), implying that they are binding.

Whether the obligation is on the public or on each individual

See Rema at the end of the note, who wrote that this applies only to administrators of a public fund, but an individual is not obligated to give all this. And the Rema wrote that it does not seem so from the Tur (apparently because regarding a poor person who goes from door to door, the Tur brought a dispute there, and wrote that it implies it applies to each individual, and here he did not distinguish). And so too the Meiri explicitly wrote in Bava Batra 9a, and so too Shakh se’if katan 3 and Taz. However, the Bach and the Vilna Gaon disagree and hold that the obligation is on each individual, and they brought proof from Hillel the Elder (Ketubot 67b); see there, where he elaborated on this. And the Shakh here rejected his proof.

And in Maimonides at the beginning of chapter 7, in halakhah 1 and halakhah 5 there, it implies clearly that the obligation is on each individual, especially since the laws of the public fund begin only in chapter 9 for him (thus the Bach wrote to prove. However, see chapter 7 halakhot 10 and 12, where he speaks of administrators, and this requires careful examination).

However, when many are not helping the poor person, according to all opinions the obligation is on each individual if he is able. And regarding what is called “he is able,” see Mahari Korkos at the beginning of chapter 7, and in Mekorot VeTziyunim in the Frankel edition there. And see lesson 2 regarding the charity obligation of a poor person.

And one must discuss whether even according to Maimonides, who holds there is an obligation on the individual, if there is a public fund he is exempt from this or not. That is, may an individual send a poor person who turns to him to the public fund on the claim that he will be supported from there, or can the poor person say to him that this obligation is in any event incumbent upon him (and the decision whether to turn to the public fund belongs to the poor person and not to the donor). And it is very reasonable that if indeed there is a public fund, each person can direct the poor person to it, if only on the logic that in such a case he is not needy, and there is no “sufficient for his need” here (like one who truly has a livelihood).

However, if this is indeed so, it is not clear what the dispute is about. According to Maimonides, although there is no Torah obligation to establish a fund and a soup kitchen, we have not found a place without a fund and a soup kitchen. If so, in practice it seems that one can always send the poor person to the fund according to all opinions, and so the practice is (we do not find that an individual gives a poor person all his needs).

There would even be room to say more than this. If there are other well-to-do people around me, then too I am not obligated to bear the burden alone merely because the poor person chose to turn to me. I may direct him to them, and not bear the burden alone. And this is the language of the Rema, who wrote that “all this [applies] with charity administrators or many together,” and his intention is either a fund situation or a situation where there are additional wealthy people who can bear the burden. And it seems that here too this is the practice.

It is possible that according to the view of the Rema and those with him, there is a basic obligation to establish a fund and a soup kitchen, and from the outset the obligation does not rest on the individual at all; therefore, even in the absence of a fund, the individual is not obligated to fill the poor person’s lack, and this is the dispute with Maimonides. It seems to me that this too is the practical custom (that even in a place without a fund we have not seen that each individual completely supports every poor person who comes to him, even if the matter is within his reach). And in the Bach quoted by the Rema it implies that if there is no fund, “the individual should give”; but it still requires examination whether this is a Torah obligation to give, or only a recommendation? A rabbinic law?

Regarding our times, when there is national insurance and state welfare institutions, it appears that this is like a situation in which there is a public fund, unless the poor person has special needs (that is, in our times there are mainly needy persons and not poor persons; see lesson 2). In lesson 10 we will discuss the status of governmental institutions and payments to them regarding charity.

Regarding “sufficient for his need”

Maimonides and the Tur/Shulchan Arukh wrote that the commandment is to give according to his need, each one according to what he lacks. See Ketubot 67b, the entire passage and the disputes there.

In responsa Beit Shlomo part 2 siman 106 he brought from the Shitah Mekubetzet, Ketubot 67, that “sufficient for his need” applies only to a wealthy person who lost his assets, and a poor person cannot decide that he wants higher standards than what he was accustomed to. And in the book HaTzvi VeHaTzedek siman 4, end of se’if katan 1, he argued that the Rashba’s responsum (brought in lesson 2) disagrees with the Shitah Mekubetzet, from the fact that the Rashba there argued that one who takes charity even though he has two hundred zuz is not considered to be depriving the poor, because charity has no fixed measure; and his proof was from the story of Mar Ukva (Ketubot there), who saw that they were sprinkling old wine before the “poor man” and decided to increase the allowance to that poor person because he was so pampered. Seemingly, this proves that a poor person who decides to sprinkle old wine for himself is indeed fit for a donation for that purpose, unlike the Shitah Mekubetzet. However, one could interpret it as referring to a wealthy person who became poor and was therefore accustomed to this (although it is not clear how Mar Ukva knew that this poor person had once been rich and was accustomed to this, rather than having decided now to raise his standards. Perhaps this is an estimate that generally poor people do not do so, and this still requires examination).

I later saw that Derekh Emunah brought that Shitah Mekubetzet without qualification (in chapter 7 se’if katan 14). However, see there in Tziyun HaHalakhah se’if katan 30, where he wrote that the halakhic decisors did not distinguish in this regard. Yet logically it seems like the Shitah Mekubetzet, and so Beit Shlomo ruled there. See also our proofs below.

Maimonides writes that we are commanded to complete his lack and not to make him wealthy (and his source is Ketubot 67b). See Mahari Korkos. And this requires examination as to why the Shulchan Arukh omitted it. And it is possible that this is connected to the inquiry above regarding a poor person who decided to raise his standards. If so, then it seems that Maimonides agrees with the Shitah Mekubetzet, and the view of the Shulchan Arukh requires examination.

And in Tosafot beginning with “Batlei,” Ketubot 68a, it implies that one does not give a formerly wealthy person something he can forgo even though he was accustomed to it (only what would cause him distress). And the distinction here requires examination. In any event, according to this it seems simple like the above Shitah Mekubetzet.

And see Maharik, root 128 (under the heading “And nevertheless”), where it implies that even if one gives a poor person something for comfort, although there is no obligation to give it, he nevertheless fulfills the commandment of charity by doing so. And logically it seems that this is so even when the poor person does not ask for it (and so too it seems from Maharil Diskin part 1 siman 24; see there).

Certainly one must not give to a deceiver. See Derekh Emunah se’if katan 11 for all that he wrote about this. Regarding checking a poor person, see siman 251 halakhah 10 (we will discuss this when we get there).

Whether this refers only to a wealthy person who became poor and this is not yet known, or to any wealthy person who became poor—see Derekh Emunah se’if katan 14.

Regarding the law of a Torah scholar as well, one must discuss what is called appropriate for him (“sufficient for his need”), and whether his law differs from others. See Shulchan Arukh 253 halakhah 11. And one must discuss whether the intention is to give him more than he needs (so that he can study comfortably), or only that the giving should be in a respectful manner. See there in the commentaries.

A common case is that people come asking for charity for marrying off a bride, and according to accepted norms this is in order to hold a rather grand wedding (though generally by today’s accepted standards a grand wedding is fairly ordinary). Still, one must discuss whether it is appropriate for a poor person to do so and whether we should contribute to him for that purpose. It seems that according to the bare law—yes; however, that poor person risks violating the prohibition of taking charity improperly. See siman 255. A similar, and more problematic, case is a request for a donation for “marrying off a bride” in order to buy the couple an apartment. Here many raise the claim that they themselves did not receive an apartment for their own wedding, so why should they be obligated to give others what they themselves do not have. And indeed this reasoning is very compelling.

Now I found in Meiri, Beit HaBechirah to Ketubot 67b, that he innovates that there is no obligation to give another person more than what the giver has (and his proof there is difficult). And so too it appears from the words of the author of Tzafnat Pa’neach, ch. 9 halakhah 14, that the poor are not required to give charity to one who has silver and gold vessels. See my notes to sec. 253 regarding one who had utensils and property, where it appears that this is indeed proven from Maimonides and the Tur/Shulchan Arukh.

Sometimes the request for charity is made by someone who intends to study in a kollel, and therefore he needs an apartment; and if he is forced to rent an apartment, he will not be able to sit and study. Similarly, one who is going to study in a kollel and receive a support stipend is no worse than this. All these are not a salary but an allowance meant to enable a Jew to study, and if so, purchasing an apartment is also of that kind. Therefore it seems that this is a legitimate request, and apparently even a very positive one indeed (according to most halakhic decisors). To all who are surprised, note well!! If our alternative is to earn our livelihood by the work of our hands, and as a result not to study to a significant extent, then regarding one who could have grown more through this path, it is not clear whether he is indeed taking the right step.

These questions are also bound up with the topic / passage of giving/receiving charity in order to perform commandments. We will discuss all this in lesson no. 5.

A poor person who goes door to door (a large gift and a small gift)

For the definition of a small gift, see Beit Yosef and Taz here. See Rashi in the Talmud / Talmudic text, Bava Batra 9a, for the reason for the law. Rashi explained that the intention is to the public fund, from which he is not given. And in Tosafot, s.v. “lo,” they wrote that a small amount he does receive even from the fund (that is, this entire distinction deals with the fund, and there is no reference to the private giver). So too Radbaz on Maimonides ch. 7 halakhah 7. However, Mahari Korkos explained that according to Maimonides the distinction refers to a private giver (and I did not understand what difficulty he had with the Tur). The dispute regarding Maimonides’ opinion is like the above dispute regarding “sufficient for his lack” (see here in the Tur).

In principle, one might have said a third way: that this itself is the distinction: they do not support him from the fund, and he receives only a small thing, meaning only charity from private individuals.

See Ahavat Chesed, part 2 ch. 16 in the gloss, where he wrote that one should not prevent paupers from going around collecting in order to care for the poor of that city.

And one should discuss the prohibition imposed by municipalities and various bodies on poor people asking for charity in their territory, or in any public places. It seems that if there is a significant public nuisance this may be done, especially if there is concern about fraudsters and there are suitable public solutions for the typical poor person (see above).

“Let not the crushed one return ashamed”

Maimonides added that although one is not obligated to give a large gift, one may not send him away empty-handed, and one must give him at least the amount of a dried fig so as not to violate “let not the crushed one return ashamed.”

And the Tur also brought this, but the Shulchan Arukh omitted it.

And one should discuss why the usual prohibitions of “do not harden” and “do not shut your hand” are not present here (see Maimonides ch. 7 halakhah 2). At first glance it seems that Maimonides holds that in the case of a poor person who goes door to door there is no prohibition, although clearly there is the positive commandment (for it is obvious that one fulfills the commandment of charity when one gives him something). And perhaps precisely on this the Shulchan Arukh disagrees and omitted “let not the crushed one return ashamed,” because here there is the regular prohibition of “do not shut your hand.”

And in Rema 249:4 he brought this law in the context of one who has nothing to give. It implies that he understood that even regarding a person who has nothing to give, Maimonides says that although he does not violate the prohibition, he must give something by force of “let not the crushed one return ashamed.” However, if he has something to give, why should he not violate “do not shut your hand” regarding that something (especially concerning a poor person who goes door to door, regarding whom there is no commandment to give all his lack, as above)? It seems that Rema understood that “do not shut your hand” refers only to giving all his lack, and this requires investigation.

A side note (?!) for thought: it is somewhat difficult how a poor person who goes door to door is supposed to make a living according to Torah law, if on the Torah level each individual does not violate “do not shut your hand” with respect to him. Seemingly there is here something like the dispute between Maimonides and Raavad in ch. 6 of Hilkhot Repentance, halakhah 5 (regarding the decree “and they will enslave them and afflict them”), whether the collective is considered composed of particulars (and see also Sabbath 106b regarding Elazar ben Mehabai, “if they were streaming and coming,” where perhaps on this Rashi and Rabbeinu Chananel disagree there, and likewise the first tanna and Elazar ben Mehabai according to Rashi).

And one may reject this, because if each person gives him a little, altogether enough for his lack will accumulate. And the source of the exemption concerning a poor person who goes door to door is precisely from that consideration. That is, if in truth enough will not accumulate for him through going door to door, then there is no exemption from the prohibition, and by Torah law each person is obligated to give him sufficient for his lack.

From this Jewish law it emerges that there is an obligation to give to every poor person who turns to us. However, this point is discussed at length in Machaneh Efraim and is already found among the medieval authorities (Rishonim) (see my notes to the end of sec. 251 regarding checking the poor person). There it emerges that there is a side that a person may turn away one who approaches him with the claim that he is about to give the charity to another poor person, and in such a case there is no prohibition of “do not shut your hand.” If so, our difficulty here about Maimonides is no difficulty at all, and it is clear why he needs the prohibition of “let not the crushed one return ashamed” (for in any case it appears that one is obligated to give at least a small amount).

A poor person traveling from place to place

See the passages in Bava Batra 9a and Sabbath 118a. Its definition: one who does not sleep here overnight (see Rashi on Sabbath there).

Here too, of course, the measure can change according to place and time.

From Maimonides and the Shulchan Arukh it implies that only if people know him do they give him according to his honor, and it implies that he himself is not believed to say that his honor is greater than that. And Semag omitted this (and see in the next section regarding examination and credibility).

And regarding three meals on the Sabbath, see Tosafot s.v. “Shabbat” in Bava Batra 9a, and compare Nachmanides in the Sabbath passage there, and in the Frankel index regarding a precise inference in Maimonides ch. 7 halakhah 8. This requires investigation as to what they disagree about. It may be that the question is whether to give him prepared food or money for food (upon whom is the obligation to buy and prepare imposed?). See also lesson no. 5 on charity for the sake of fulfilling commandments.

The main novelty regarding a poor person traveling from place to place is that we have no obligation to support him with sufficient for all his lack, or at least that “sufficient for his lack” means only his needs for that day that he is with us. And this is similar to a poor person who goes door to door, although here it is not necessarily a collector.

And the practical difference, whether this is all his lack or whether we do not need to give him all his lack at all, is whether there is here the prohibition of “do not shut your hand” (see my notes regarding the collector). However, if there were only “let not the crushed one return ashamed” here, then a dried fig would have sufficed for us as with a collector. Therefore it seems obvious that with a poor person traveling from place to place there is “do not shut your hand,” except that with respect to him the definition of “sufficient for his lack” is his needs for that day.

The dispute of the rich and the middle class

See in Shulchan Arukh halakhah 5 that when there were many poor people, and the givers disagreed among themselves how to give: the rich say they should go door to door, and the middle class say according to means, the law follows the middle class (and its source is a responsum of Rashba, part 3 sec. 380). See the wording of Rashi in Bava Batra 9a, from which it implies that one does not teach a poor person to go door to door.

Seemingly there is here a question whether society may require poor people to go door to door in order to receive charity (see, for example, Tzedakah U’Mishpat ch. 3 halakhah 3, which understood this way). However, from the formulation of the law it seems clear that they indeed can be required, for if the middle class had not argued, it seems the law would have followed the rich. That is, this is not a legal dispute between the rich and the poor but between the rich and the middle class; it is a dispute about the size of the amount and not about whether poor people may be compelled to go door to door (and so too it appears from the Vilna Gaon there, se’if katan 8, who referred to the beginning of sec. 249. It seems his intent is that there it is about a tithe and a fifth, which are measures according to means). However, it may be that this is the dispute between the middle class and the rich, yet the Jewish law follows the middle class for a reason related to the poor (that one cannot require them to go around collecting), but that does not appear so. Rema’s reasoning is certainly of that sort; see my notes in the next paragraph.

And see at the beginning of sec. 256 that one must establish a fund and administrators in every city, and if so it is difficult what the dispute is altogether. And in truth in Rashba himself it seems that this itself is his answer. But in the Shulchan Arukh and Rema it does not appear so, and it seems that here the discussion concerns only a situation of many poor people, where the burden of establishing a permanent fund is very heavy. If so, it follows that if everyone agrees with the rich that they should go door to door, then there is no need to establish a charity fund at all, and one may send all the poor to go door to door. But in Rashba it seems that the situation of many poor is only a description of reality, and in fact there is an obligation to establish a fund, and this itself is the reason for his ruling that the law follows the middle class. And it seems that this depends on whether the enactment of the fund is for the poor or for the householders (see my notes on the accompanying sheet to sec. 256). For if it is for the poor, then they have a claim against the rich who do not want to establish a fund. The dispute is between the poor and the rich. But if we understand that the obligation to establish a fund is for the givers (so that they can send the poor person to the fund and not have to fulfill all his lack by themselves), then the dispute is between the givers, as implied by Rashba. This requires investigation in practical law.

An important contemporary point emerges here: nowadays in some places there are claims by wealthy people against poor neighborhoods located in their area, or wealthy neighborhoods in poor cities (which is exactly the state of “the poor of the city are many”), for example Mevaseret Zion versus Jerusalem, and Ramat Aviv versus south Tel Aviv, who want to separate. Seemingly they do not want to support the poor in their area, and the question is: who will determine what counts as “my place” for this matter? The wealthy want to define their place more narrowly, and then these will no longer be considered the poor of their city.

Of course, one must distinguish here between a situation in which a poor neighborhood passes from one municipal jurisdiction to another, and a desire to define it separately and turn it alone into an independent city. From the Jewish law before us it emerges that the wealthy do not have the power to determine that the poor are not at all the poor of their city; the whole discussion is only how the distribution will be carried out. However, if the dispute concerns within which city’s territory a certain distressed neighborhood will be included, although perhaps this is not very becoming, the claim is legitimate.

Of course, in a realistic case one must examine whether the categories of charity apply here at all. Are the services given to all city residents by virtue of the wealthy in fact their needs (“sufficient for their lack”)? Simply speaking, this is the custom (the prevailing standard) that such things should be provided to every person (in education, services, and the like), and if so this is “sufficient for his lack.”

Beyond that, one must discuss a situation in which, even if the neighborhood in question is not within the city’s area, the burden of maintaining its residents will fall upon the whole state (the government), and it is not that nobody will care for them. If so, the wealthy of the city argue: why should the municipal division, sometimes arbitrary, obligate דווקא this wealthy group to care for these poor people?

And in general one must consider what “place” means for this matter today, in the era of a nation-state. Is the basic definition city, neighborhood, state (or perhaps the world and the universe: a positive aspect of the “global village”!)? Below we will discuss this and see orders of priority (sec. 251 halakhah 3).

The obligation of charity according to means

See Rema sec. 250 halakhah 5, who brought the explanation of Rashba’s law in principle that charity is according to means. However, see Beit Yosef, who brought another responsum of Rashba, which Rema also cites here, that if there is a custom to give according to voluntary contribution or according to the tax, one may do so as well. See Rashba’s wording in the law of coercion concerning charity, that one compels a person to give even if he does not give “as is fitting for him.”

See the Talmud / Talmudic text, Bava Batra 7b, regarding whether city needs are collected according to persons or according to enhancement of wealth. There it seems that the determination is substantive, meaning according to the benefit (if the wall is meant to protect property, the collection is according to wealth; and if it is meant to protect lives, the collection is according to persons. See there). If so, regarding charity it seems one must discuss why giving is according to wealth. Does greater wealth create a greater obligation in the commandment of charity? Simply speaking, this category is rabbinic, and not a category within the commandment of charity itself (and the Torah-level categories are a third of a shekel, a tithe, and a fifth, as explained above in sec. 249. True, a tithe and a fifth are according to wealth, but there is no place there for a determination by the city administrators).

And it requires careful investigation why this discussion is located in this section and not in sec. 256, which deals with the laws of collecting for the fund and the soup kitchen. It seems that Rema interprets the dispute between the rich and the middle class in Rashba’s responsum as a question whether charity is according to means (or tax) or according to generosity of heart, and not specifically in the laws of the public fund. This requires investigation.

Lesson number 5: Charity for the sake of fulfilling commandments

In sec. 250 halakhah 4 it is stated that although for a poor person traveling from place to place a small gift suffices, on the Sabbath one does not give him less than three meals with fish and vegetables.

A similar phenomenon is seen in the law of a poor person who lives off charity, who is also obligated to give charity. Seemingly it follows that he takes charity in order to give charity; that is, he takes charity money for the sake of a commandment. And as we saw in lesson no. 4 (ma’aser kesafim at the beginning of the halakhic section), the halakhic decisors wrote that a poor person who is supported by an institution, or by a person who himself is fed from charity, must return the charity he himself is obligated to give to the institution that supports him, for it is unreasonable that that person should take charity so that this one can give charity to another. According to this, it seems that any poor person who gives charity—the recipient should return that charity to him (see the accompanying sheets to the end of sec. 251 regarding exchanges of charity).

And similarly we find at the beginning of the chapter Arvei Pesachim that one must give a poor person for the four cups; and we also find regarding the Hanukkah lamp and Sabbath lamp that he begs door to door in order to have them. So too we find regarding “kimcha dePischa,” that collections are taken for poor people’s commandments on Passover.

If so, in several places we find that there is an obligation to give charity for the sake of fulfilling commandments and not only for the physical survival of the poor person.

A.

Seemingly one must discuss why we should alter the giving for the Sabbath from the giving for weekdays. Simply speaking, the purpose of the giving is to enable him to live, and for that food for two meals suffices, as on any other day. The commandment to have three meals on the Sabbath is not a survival need but only a commandment need, so why are we obligated to give him for commandment-needs beyond what is required for his survival? And if indeed we are burdened with bearing the weight of his commandments, how far does this go? Must we also buy him an etrog? Perhaps tefillin? Perhaps even support his existence while he studies Torah (is there an obligation to be like Zebulun)?

One must also discuss this from the recipient’s side. Is he permitted to take for the sake of a commandment? Is he obligated to take (such that he has no claim of coercion if he does not perform the commandment)?

And concerning kimcha dePischa, perhaps one may reject this by saying that it is purely a matter of sustenance and not of commandment, and the commandments arise only because one cannot eat regular bread and products. However, here too one must discuss why we should give charity to the poor person in order to save him from transgression. Seemingly we should tell him to eat leavened food if this is a matter of life-threatening danger for him. One may reject this, for here it is a custom to give and not a law.[14] Moreover, it may be that the root of the custom is that the poor person might fear eating leavened food and thereby enter a doubt of life-threatening danger, and therefore they established upon us to give him. However, all these are secondary reasons, and the question remains whether there is no obligation to give in order to prevent the poor person from violating a prohibition.

And the point may be strengthened further by the fact that today kollel students who live off charity buy guarded matzah, a choice etrog, fine tefillin and mezuzot, and other ritual items. Here this is taking charity for the sake of enhancing a commandment, and the difficulty is even greater.[15]

However, it seems that since this is the accepted standard in their society, it is considered “sufficient for his lack,” and a habitual standard for a commandment is no worse than any other habitual standard. If so, we are indeed obligated to give him on account of his accustomed standard, since he was used to such a level and this is the practiced norm in his society, and not on account of enabling commandment observance. But regarding giving for the actual sake of a commandment, the question remains. And regarding the obligation to give food for three Sabbath meals, it is obvious that this is not given under “sufficient for his lack”; rather, it is a true obligation even where he has no standard of eating three meals on the Sabbath. Still, one may discuss that from the recipient’s side perhaps there is reason not to live off charity for these needs, or at least not to take charity for enhancement of a commandment, even though for the giver it is permitted, and even obligatory if asked.

And regarding marrying off an orphan girl or a poor girl, whether this is considered commandment-needs, see Tzedakah U’Mishpat ch. 3 note 3, where he inclines that if her father is alive this is her father’s obligation and is a charity debt of the individual, and is not imposed upon the public; but if he is dead, the obligation passes to the public and public money may be taken to marry her off. And it is obvious to him that if it is a commandment, it is certainly permitted to give charity for this.

And in the matter of marrying off a poor girl or an orphan, one must discuss whether this is because of the commandment or because it is like any other lack, even if there were no commandment (especially with respect to a woman, regarding whom there is a side that there is no commandment). For seemingly it is no worse than any other lack, and to remain unmarried is certainly like some physical deprivation. If so, the whole discussion here does not belong to our present discussion of charity for the sake of a commandment.

See responsa Chatan Sofer sec. 92 (cited in Tzedakah U’Mishpat ch. 3 note 4), who inclined that there is no obligation to give charity for the sake of fulfilling a commandment, but he had difficulty from the law that one must marry him a wife because of “be fruitful and multiply” or “He created it to be inhabited.” He also had difficulty from redeeming captives, whose whole purpose is only so that he not be forced to desecrate the Sabbath. See there, where he wrote that this is because of the prohibition, and because of a positive commandment there is indeed no obligation to give.

According to our words there is no need to reach all this, for redeeming captives and marrying off the poor are not only commandment-needs, but are also no worse than any other need within the category of “sufficient for his lack.” There is no doubt that the poor person would be willing to give up many needs due to him by law, so long as he could marry and be redeemed from captivity. The words of Chatan Sofer require great investigation.

And the basis of the question is on two planes: 1. Does giving for the sake of fulfilling a commandment and for preventing a prohibition matter, seeing that if the poor person does not have enough to fulfill the commandment he is under coercion, and why is there a problem that obligates giving him charity? 2. Is this a sufficient objective for giving charity, even if he would not be considered coerced (although there is no reason at all to say that even if I do not give him he would not be considered coerced, for what is different from any other coercion? In any case, one must discuss whether there is here an additional dimension, that even if he were not coerced it is not incumbent upon me to solve his problems of commandment observance). For Maimonides wrote in ch. 7 halakhah 3 that you are commanded to complete his lack, but you are not commanded to make him wealthy. The question is whether fulfilling commandments falls under completing his lack or under making him wealthy.

Regarding both of these, one may distinguish between a prohibition and a positive commandment. There is room to say that fulfillment of a positive commandment is not a sufficient reason, but preventing a prohibition is. By contrast, the first argument seems symmetrical for prohibition and positive commandment; if he is considered coerced, then I am no longer obligated to give him, whether for a prohibition or for a positive commandment.

However, one might have distinguished and said that there is no obligation to give to a poor person merely to prevent a prohibition, but specifically for the sake of a positive commandment there is an obligation to give him. The explanation is that if he violates the prohibition under coercion, he has lost nothing. On the other hand, if he does not perform the commandment under coercion, he has lost the fulfillment of a commandment, for one under coercion is not like one who did it. That is, giving for the sake of positive commandments helps the poor person, whereas giving to prevent a prohibition does not help him at all (and this depends on whether there is spiritual dulling of the heart and spiritual damage from sins committed under coercion).

In the background of all this, one must discuss whether the obligation to give the poor person for the sake of fulfilling a commandment or avoiding a prohibition is by Torah law or rabbinic. And even if it is by Torah law, one must discuss whether it is an obligation like all commandments of charity, or perhaps more than any other charity, since if I do not give, I am at fault for his transgression. And on the rabbinic plane as well, one must discuss what category the Sages gave this obligation.

B.

Now, above we saw in the words of Chatan Sofer sec. 92 that he inclined that one is obligated to give charity only for the sake of avoiding a prohibition and not for the sake of fulfilling positive commandments. It must then be said that all the specific obligations we find (four cups, Sabbath meals, marrying a wife, Hanukkah lamp and Sabbath lamp) are special rabbinic enactments, or that they are no worse than “sufficient for his lack,” being needs of the poor person himself beyond the commandment aspect in them (as we saw regarding commandment enhancement among kollel students).

And in Likutei Responsa Chatam Sofer sec. 29 (see Nikdash BiTzedakah ch. 3 note 4), he discusses charity for the poor of the Land of Israel (see sec. 251 halakhah 3 and the accompanying sheets there), that although this is a great commandment, one lacking bread clearly comes first. It seems obvious to him that there is a commandment to give a poor person in order that he fulfill a commandment, but a poor person lacking bread takes precedence.

Magen Avraham sec. 656 brought from Maharshal, implying that one is not obligated to go around and ask even for the sake of a Torah-level commandment. If so, at least from the recipient’s side he is not obligated to ask for this, though from the giver’s side perhaps it is charity. See Biur Halakhah there and Maharam Shik, Even HaEzer sec. 89, who challenged Maharshal from those examples (four cups, and the Sabbath and Hanukkah lamp), and therefore inclined that one is obligated to ask in order to fulfill a commandment. Maharshal will apparently hold that those are special enactments.

And Pri Megadim, Orach Chayim sec. 37, Eshel Avraham letter 4, wrote regarding tefillin that there is a Torah obligation to give charity for the sake of a commandment. So too in responsa Beit Shlomo Orach Chayim 2:95 and Divrei Malkiel 4:15.

And in Biur Halakhah sec. 671 s.v. “va’afilu,” he brought in the name of Chemed Moshe that there is no obligation to give a poor person charity for enhancing a commandment. However, after receiving the charity it seems the poor person may use it for an enhanced commandment (and so too it appears regarding paying debts with charity, where the medieval authorities (Rishonim) disagreed whether we are obligated to give a poor person charity to pay his debts—see Nikdash BiTzedakah par. 148 and onward—but it seems that according to all opinions, after the money has been given to him he may pay his debts with it).

At the end of the book Halakhot VeHalikhot Bar Mitzvah by Rabbi B. Adler (Jerusalem, 1978, p. 205), he cites Rabbi Zolti as saying that one is obligated to give charity only for commandments from which the poor person benefits physically, such as three meals and four cups. Therefore he rules in practice that one is not obligated to buy him tefillin. It seems that his reasoning is that since the poor person would be under coercion, I have no duty to spend my money on him and remove him from his coercion (see Nikdash BiTzedakah par. 138 and onward). And commandments from which his body benefits are considered “sufficient for his lack.” However, one may reject this and say that this is only if he truly desires them, and not in every case of four cups that one must give him charity for them.

And this is similar to Rabbeinu Yitzchak in Bava Batra, Tosafot s.v. “shenemar,” who wrote that one does not free a slave in order that he fulfill commandments, because he is coerced and exempt from them (and one might have said that he is not obligated at all, rather than that he is coerced, in which case there would be no proof to our discussion. However, from Rabbeinu Yitzchak’s language it appears that this is because of coercion, and apparently he holds that a slave is a deficient Jew and not a perfected non-Jew, like the well-known inquiry of the later authorities (Acharonim)).

Similarly, in Divrei Malkiel 1:28:22 it is written that if the poor person is under coercion such that he is permitted to violate prohibitions, there is no obligation to give him charity. However, above we saw in this same work, 4:15, that one must give for the sake of a commandment, and apparently his intention is to a case where the coercion does not exempt but only overrides (or perhaps where it is not actual coercion).

Rabbi Zolti brings several proofs for his novelty.

The baraita in tractate Ketubot 67 brings an exposition from a verse that one must give an impoverished orphan charity in order that he marry, and it implies that in general there is no such obligation, for otherwise we would not need the verse. However, one might have said that from there there is a paradigm for all commandments. But this can be rejected according to the reasoning above, that marriage is different, for it is no worse than “sufficient for his lack,” and is similar to a commandment that involves bodily benefit, for which even Rabbi Zolti agrees one must give charity to a poor person.

As another proof he brings the Jerusalem Talmud, Peah ch. 1 halakhah 1, where it is explained that a poor person is obligated to honor his parents even if for that purpose he must go door to door. This implies that for the sake of other commandments he is not commanded to go around collecting. However, this can be rejected, because even if there is no obligation to go around, as Maharshal wrote above, still there may be an obligation to give (at least to one who does go around). And one may further reject this: concerning parents we rule that one honors them from their own resources, and therefore we need a verse to obligate him to go door to door. That is, instead of giving from his own money, he goes door to door, and not for them directly (as Rabbi Chaim said regarding train travel).

A third proof Rabbi Zolti brings is from Maimonides, Shekalim ch. 1 halakhah 1, that even a poor person who lives off charity must give the half-shekel even if he will need to go door to door. This implies that this is a special law concerning the half-shekel and not all commandments. So too Rabbi Zolti wrote regarding the Sabbath lamp.

According to the later authorities (Acharonim) we saw, who hold that one must give a poor person for the sake of a commandment, it requires explanation why they do not agree with Rabbi Zolti. Seemingly the poor person is under coercion, so what is the problem if he does not fulfill commandments or does not refrain from transgressions?

Two directions:

1. Mutual responsibility (the Vilna Gaon regarding entrusted leavened food according to Rashi’s view, and on Taz Orach Chayim sec. 405 se’if katan 4; Tosafot Shevuot 30b regarding human dignity; one who clothes his fellow in forbidden mixed fibers)—the transgression is mine, and if so the obligation is greater than ordinary charity. This is a real obligation for me and not for my fellow. And perhaps one can say even more: that I am considered as though I forced him to transgress.[16]
2. The difference between a prohibition and a positive commandment (according to the above reasoning), meaning that fulfilling a commandment is no worse than “sufficient for his lack,” and this is a legitimate need for charity. And in the Talmud / Talmudic text in Ketubot they brought an additional exposition on “sufficient for his lack,” and afterward it may indeed be that the previous exposition about giving charity to an orphan so that he may marry is superfluous (and so too Nikdash BiTzedakah par. 139). In truth, this is only for the sake of a positive commandment and not for the sake of a prohibition. And so too this seems to explain the apparent contradiction in the rulings of Divrei Malkiel above, who wrote to exempt from giving charity where coercion exempts him, and yet wrote that for the sake of a commandment one should give charity. According to our words this is very well explained: for a positive commandment one gives, but for a prohibition from which coercion exempts him one is not obligated to give.

And one must further discuss the obligation of the poor person himself to go door to door for the sake of commandments. On this matter see Nikdash BiTzedakah ch. 6 from sec. 142 and onward. Rabbi Zolti linked these two discussions to one another, and therefore brought proof from the absence of an obligation to go around to the absence of an obligation to give. But one may distinguish: there is no obligation to go around (except for certain commandments), because just as one is not obligated to spend more than a fifth of one’s assets on commandments, so too one is not obligated to demean oneself. Still, one may say that there is an obligation to give him, especially if he asks. And certainly this is at least within the category of “let not the crushed one return ashamed.” And this is not the place to elaborate.

G.

And one must discuss regarding kollel students whether they are poor, and whether giving to them is considered giving for the sake of a commandment.

One should distinguish between a discussion of the obligation to give and the question whether, when one gives, one has fulfilled the commandment of charity.

Sources are cited that the tithe was instituted for the sake of Torah study. And it may be that Torah is not merely a commandment among others, but an existential need (the commandment of Torah study twice daily through recitation of Shema, just as repentance is not a “commandment to do repentance”). The study is for us; it is no worse than researchers at a university (shall a priestess be no better than an innkeeper?). However, here it seems that there is a distinction between public and private money, for this is an obligation imposed on the public.

And see below in the accompanying sheets to the end of sec. 255 regarding whether kollel students are considered (pejoratively, and in general) as living off charity.

 

 

Order of priority in charity:

 

Main sources

Tur/Shulchan Arukh sec. 251. Maimonides ch. 7 halakhot 6–7 and 13; ch. 8 halakhot 10 and 14–18. Their sources are from passages of the Talmud.

Main points for expansion

There are two types of priority: A. Priority according to who the recipient is (his closeness, status, personality, etc.). B. Priority according to the need (redeeming captives, marrying off an orphan, etc.). Every such discussion must be conducted separately, and when a given situation brings them together into one inn (for example: redeeming one’s neighbor, as against feeding one’s son), this should be discussed only afterward. Therefore we will divide the discussion into two parts accordingly.

• Priority according to types of people

Intentional transgressors of one of the Torah’s commandments who have not repented

Shulchan Arukh halakhot 1–2. Maimonides ch. 8 halakhah 14 (he discusses only redemption. However, there is no source in the Talmud for the other matters, and therefore no proof from the fact that Maimonides did not bring them).

See Beit Yosef and the commentaries regarding an apostate out of appetite and out of spite (see Derekh Emunah se’if katan 91 for the definition) concerning the obligation to sustain them and lend to them, and the prohibition to redeem them. In any case one must examine whether there is a value in not supporting him, or only permission (see Tziyun HaHalakhah letter 248). See also Pitchei Teshuvah here.

Whether a heretic and an apostate are different—see there at the end of letter 248.

See the end of the first chapter of Bava Kamma regarding giving charity to people who are not worthy (Jeremiah and the men of Anatot). However, there the case is one who gives by mistake to an unworthy person, and see the article of Rabbi Elchanan Wasserman on repentance in Kovetz Biurim (whether there is no act of charity here at all, or whether it is like one who intended to eat pork and ended up eating lamb in the reverse case). And if one gives to such a person intentionally, it seems that there is no commandment here at all. However, there one could interpret “people who are not worthy” as meaning people who do not need charity (fraudsters), in which case it is obvious that there is no act of commandment at all (see my notes to sec. 253 regarding a fraudster).

See Mikorot VeTziyunim in the Frankel edition here and in the index.

See my notes below to the law of poor gentiles regarding the comparison of wicked Jews to them.

See Chazon Ish Yoreh De’ah sec. 2 se’if katan 16, well known regarding the wicked of our times, and this has already been discussed at length (see, for example, Rabbi Elisha Aviner, “Tzohar,” vol. 3, p. 170). The accepted view is that ordinary Jews who do not observe Torah and commandments are not in the category of those whom one must not sustain, but it may be that among them there are clearly wicked people who definitely are in this category, but this is not the place to elaborate.

Poor gentiles

See in Rema halakhah 1, who wrote that one supports them together with the poor of Israel. See Taz here se’if katan 2, that one also supports them separately. And the Vilna Gaon here se’if katan 2 brought that this is a dispute between Ran and Mordechai, and the Shulchan Arukh ruled like Ran (cited by Taz), while in Rema it seems that he ruled like Mordechai.

Regarding the concept of “ways of peace” in general, see for example the Talmudic Encyclopedia, entry on that term, mainly in paragraph 5. It is quite clear that this is not a law of “because of enmity,” meaning danger to Jews, but because “her ways are ways of pleasantness and all her paths are peace” (for “ways of peace” is also stated in contexts that do not concern relations to a gentile; see there in the encyclopedia). Still, it is somewhat difficult in light of the law of “do not show them favor”—do not give them a gratuitous gift.

In light of this, one may discuss poor transgressors: are they worse than gentiles or not (see Bach here s.v. “katav”)? All the opinions that hold there is a prohibition to sustain or redeem a wicked person of some type clearly understand that he is worse than a gentile.

If so, the explanation cannot be only that he is not included in “your brother,” for that would give him at least the status of a gentile. There is also an element of punishment and deterrence here, and it is apparently rabbinic (for by Torah law it is hard to see what prohibition there is here; at most one can say that there is no obligation).

However, if we understand that even regarding gentiles there is a prohibition, and that “because of the ways of peace” means because of enmity (danger to Jews), one could say that with a wicked Jew it is permitted, for usually this does not arouse gentile enmity against us. However, nowadays, when the hand of wicked Jews is strong, and there are many such people, it is reasonable that there would also be a prohibition because of their enmity toward Jews who observe Torah and commandments (sounds Haredi?). However, I already noted that this is not the simple meaning of the concept “ways of peace.”

Wisdom and lineage—priority according to status

See Shulchan Arukh 251:9 and Maimonides ch. 8 halakhot 17–18. And it seems that the poor of the Land of Israel (in Shulchan Arukh there, halakhah 3) also belong to this category. Maimonides omitted the law of the poor of the Land of Israel (see Chatam Sofer Yoreh De’ah sec. 233 s.v. “ivra,” and sec. 234 there; Da’at Torah by Maharsham Yoreh De’ah 251 s.v. “veyoshvei”). Some say that the poor of Jerusalem take precedence over the poor of the rest of the Land of Israel (see responsa Chatam Sofer Yoreh De’ah 233, 234). However, nowadays it may be that there is no longer priority for the poor of the Land of Israel and Jerusalem, at a time when there is no difficulty in settling them; but in problematic places (Negohot?) the priority still stands, and this requires further analysis.

And one must discuss the source of these laws of priority. Regarding a priest there is the law of “and you shall sanctify him,” and regarding a Torah scholar there is the law of honoring a Torah scholar. The priority of the poor of the Land of Israel appears to stem from the commandment of settling the Land of Israel (since supporting them helps settle the land), or from the very fact that they are people engaged in a commandment (a rabbinic priority).

Accordingly, one must discuss all who are engaged in a commandment. For example, kollel students engaged in Torah, even though they are not yet in the category of Torah scholars (and Rema Yoreh De’ah sec. 243 wrote that in our time there is no category of Torah scholar at all for several matters). And similarly regarding those engaged in other commandments.

However, from the wording of the Shulchan Arukh in halakhah 9 it seems that this is not specifically a law concerning a Torah scholar, but that there is a law in charity that the greater in wisdom takes precedence, and this is obviously true even nowadays, that some are greater in wisdom than others. And for an actual Torah scholar there is an additional law (not from the laws of charity) to give him precedence. It seems this is the intent of Shakh se’if katan 16, see there.

See the Talmud / Talmudic text, Bava Batra 8a, in the story of Yonatan ben Amram, from which it implies that there is a matter of not supporting an ignoramus at all. Even Rabbi’s conclusion there was to support everyone so that otherwise Torah scholars would not receive, but essentially it appears that he held one should not support the ignoramus. See Shulchan Arukh halakhah 11 and the Vilna Gaon se’if katan 21; this requires investigation. Of course, if it is a matter of life-threatening danger, one also supports an ignoramus (unless certainly a Torah scholar will thereby lack). See Birkei Yosef.

And concerning priority according to lineage (shetuki, asufi, etc.; see their definitions at the beginning of chapter 4 of Kiddushin), one must discuss regarding each one why he takes precedence: whether because he committed a transgression, or because he is “less Jewish,” while usually this is not his fault.

Order of priority according to closeness

Necessary introduction: first, it is important to emphasize our obligation to relatives, which we sometimes tend to belittle (see below on the praises of sectoriality). On the other hand, it is important to sharpen that we are speaking here about poor relatives. The commandment of honoring father and mother in practical Jewish law is from their assets and not from one’s own, and one should not mix the concern for parents by virtue of honoring father and mother (and by virtue of being a human being) with the obligation to give charity to the poor. This section deals with a situation in which one’s parents are poor, in which case they certainly take precedence over everyone.

In Tur/Shulchan Arukh and Rema halakhah 3, and Maimonides ch. 7 halakhah 13, there appears an order according to family closeness, and afterward according to social/geographic closeness. It may be that priority according to status (shetuki, asufi, etc.; see my notes above) is also from this law. The more Jewish he is, the closer he is to us.

As stated, there is here a declaration that not only is it legitimate to care for family, but we are even called upon and obligated to do so. Of course, regarding charity administrators the law is entirely different, and there there is no permission whatsoever to favor one’s relatives, and in practice there is the law of “and you shall be clean before God and before Israel,” as we will see below (beginning of sec. 257, especially halakhah 10 there).

For several discussions regarding these laws of priority, see the Frankel index and Derekh Emunah to ch. 7 halakhah 13.

In Shulchan Arukh sec. 257 halakhah 8 it is written that the city administrators need not support poor people who have wealthy relatives (even though those relatives contribute to the city fund), and this will be explained there. Attention managers of free-loan funds: it seems to me that often they do not act this way (although it may be that they are permitted to do so, even if they are not obligated; see there).

Arukh HaShulchan sec. 251 halakhah 4 wrote that one should not give everything to one’s relatives, but only prefer them. He explained that otherwise poor people who do not have wealthy relatives will die of hunger. However, in light of the above words of the Shulchan Arukh (sec. 257 halakhah 8), his reasoning is not compelling.

Is sectoriality disgraceful?

Very often criticism is heard against sectorial behavior. For example, religious parties in general, and Haredi ones in particular, are often accused of sectorial rather than statesmanlike behavior. Seemingly, from these laws we learn that there is indeed room for such an attitude, and in practice it appears that this is the conduct required ab initio.

Specifically, one might tie religious-Haredi sectoriality to the priority given to Torah scholars, and perhaps even to the prohibition of caring for transgressors.

Of course, one must discuss whether a sector is also considered a circle for purposes of charity. In Jewish law we find city, family, etc., but we do not find sector. However, logically it seems obvious that a sector is also a circle, for what difference is there between a city or neighborhood and a sector (especially in the age of the global village, in which the main geography at play is virtual geography)?

However, it may be that in the context of a state where there is social agreement that the basic circle is the state as a whole, the situation changes. Of course, this is not simple at all, for as we saw regarding different cities, certainly the rule still exists that the wealthy there care primarily for the poor of their own city (see my notes in the previous section). Beyond that, there is often a feeling that certain sectors are deprived in the distribution of state resources, and therefore their obligation toward their peers awakens.

Of course, the foolish common belief today that concern for museums, sports, and state education is non-sectorial activity, whereas concern for yeshivot is sectorial, is nothing but propaganda of a very particular sector. This sector usually likes to think of itself as not a sector at all, but the kingdom itself (cf. Louis XIV).

He takes precedence over everyone

The source of the law is brought in the Tur here in the name of Rav Saadia Gaon (see also Radbaz ch. 7 halakhah 13), and Rema also brought it here in halakhah 3. See Arukh HaShulchan here halakhah 3, that its source is from the woman of Tzarephath.

The question is how this fits with the obligation of the poor person to give charity (see above in lesson 2). See Derekh Emunah ch. 7 se’if katan 97, and also Arukh HaShulchan there halakhot 5–7.

See the wording of Maimonides at the beginning of ch. 7, “if the hand of the giver can afford it” (and simply this is a condition also for a third of a shekel, contrary to Derekh Emunah above), and Rabbi Mahari Korkos there, and Mikorot VeTziyunim in Frankel there (on the matter of “your life takes precedence”).

One must further consider whether one who has nothing to give is exempt because he is considered coerced, or whether the obligation of charity, by its very definition (charity = support of the poor by the wealthy), is imposed only on one who has. A practical difference, for example: must he strive to have something, or since he has nothing, no obligation rests upon him at all (permitted rather than merely overridden)?

The definition of “your life takes precedence” appears to be an exemption by virtue of coercion. But from Maimonides’ wording it appears that this is the definition of the commandment and not a category of coercion, for if not, why does Maimonides mention already in the opening definition that the obligation is on one who has. See Sefer HaMitzvot and Sefer HaChinukh.

Seemingly this depends on whether the obligation of charity is a law of concern for another (involvement: an obligation to give of one’s own to another), or a law of helping the strong support the weak (which by its nature is imposed only on the strong). Derekh Emunah and the above later authorities (Acharonim) held that giving a third of a shekel is an obligation on every person, and therefore there is no condition that it be within his means. But as stated, that does not appear from Maimonides.

• Priority according to needs

One should note two laws of priority that do not appear in this section, and with them we will begin.

It is preferable to divide among several poor people than to give to one poor person

In sec. 257 halakhah 9 there appears the law that one should not give all one’s charities to only one poor person (see the source in Be’er HaGolah).

However, it is well known that Maimonides wrote this in his commentary to the Mishnah, Avot ch. 3 mishnah 15: one who distributes one hundred gold pieces to charity in one hundred acts is not comparable to one who gives them in a single act (and this does not appear in his code). But in Maimonides it appears that whoever increases this is praiseworthy, whereas in the Shulchan Arukh he wrote only not to give to one. Beyond that, from Maimonides it appears that the main matter is to increase acts of giving, while from the Shulchan Arukh it appears that the main matter is to increase the number of poor people. A practical difference: one who gives several times to the same poor person.

See in Netivot Olam by Maharal, Netiv HaTzedakah ch. 4, who brought these words of Maimonides (without citing him by name), and disagreed with him, saying: “The words of the Sages do not prove this.”

The omission of this law in the code probably stems from the fact that this is a pious practice and not full law (see the introduction to the book Einayim LaMishpat). If this is correct, one should infer that everything brought in the code is strict law! (See, for example, below sec. 253 in my notes to the law of a householder traveling from place to place.) Or perhaps the omission is because Maimonides retracted it (for the commentary to the Mishnah preceded the Mishneh Torah).

One must consider when this law applies. When he has enough to give every poor person sufficient for his lack, it is obvious that there is no point in giving one more than he needs. When he has enough to give only one person sufficient for his lack, logically it would seem preferable to give one person his lack and spare him from having to ask others (see Sefer Chasidim, ed. Rabbi Margaliot, sec. 61, who wrote this). Especially since usually only one person approaches him at a given time; by what right may he turn away the present applicant because of his wish to give to an applicant who may come later to ask? If so, perhaps Maimonides is speaking of a case where a person does not have enough to give even one poor person sufficient for his lack.

Rishon LeTzion on Shulchan Arukh 257:9 wrote that the main law is not to give to fixed poor recipients, and not specifically to one person. The idea is to divide one’s tithes among as many poor people as possible (see below lesson 6 on priestly acquaintances in charity).

Regarding the reason for the law, Levush (Ateret Zahav, 257:9) wrote that it is preferable to give to a worthy poor person, and therefore it is better to increase the number of poor people so that the probability of finding among them one worthy person will grow. He wrote there another reason as well: if he always gives to one, he causes distress to the other poor people. From Maimonides’ wording it appears that the point is to multiply acts of giving (his words refer to the Mishnah “everything is according to the abundance of the deed”). Perhaps Maimonides holds that the commandment of charity is not only the money that reaches the poor person, but also the act of giving itself (see the opening lesson), and therefore it is better to increase acts of commandment. But from the Shulchan Arukh and Levush it does not appear so.

And one may be in doubt in this law whether the gifts should be divided equally among the poor. It seems that according to the reasons of Levush—yes; but according to Maimonides—not necessarily.

If indeed in Maimonides this is a pious practice, it is reasonable that it should not override priorities that are strict law (several poor people versus a relative, or a Torah scholar, and the like). See Shakh 257 se’if katan 19, who wrote this.

See also the two laws at the end of sec. 249, which are also laws of priority in charity.

In sec. 249, Taz mentions the matter of priority of giving to Torah study as against giving to the poor (see Minchat Yitzchak part 2 sec. 39). One should pay attention to this, because it is common and people are not always aware of it. And in Chokhmat Adam klal 145 sec. 7 it appears that this applies even when they are not poor, and the donation is so that they study with peace of mind (air conditioners for the study hall), for if they are poor it is obvious that Torah scholars take precedence. And at the beginning of the book Ma’aser Kesafim he brought midrashim that the essence of the law of monetary tithing was instituted for Torah study. This priority is not because we prefer the welfare of Torah students (sectoriality, heaven forbid), but because the donation is intended to increase Torah students and Torah study in Israel.

Note well the importance of Torah study, and the importance of donating in order to increase Torah in Israel!

For the other laws of priority, see here in halakhot 7–8 and 13–14.

Checking the poor

See Shulchan Arukh here halakhah 10, and Maimonides ch. 7 halakhah 6.

In our time the problem of checking the poor person is very common. In this law the Amoraim disagreed in Bava Batra, and their source is both Scripture and logic; see there. In the Shulchan Arukh he ruled like Rabbi Yehudah, that one checks for clothing but not for food. The reasoning in the Talmud / Talmudic text is that a hungry person suffers, unlike one who needs clothing (and Kiryat Sefer and Mahari Korkos, who wrote in the name of the Jerusalem Talmud that it is because of sustaining the soul, require investigation, because in the Babylonian Talmud it is proven that it is because of suffering). See Rabbi Or Sameach at the end of ch. 15 of Sanhedrin for an explanation of the distinction.

In any event, if it is known that he is a fraudster (with or without checking), it is obvious that one does not give him anything at all.

Please note! Contrary to a widespread popular belief, there is no Jewish law requiring one to automatically give money to everyone who asks. It is certainly permitted, and perhaps even necessary (and regarding tithing it is obvious that it is necessary, so as not to deprive the other poor), to check him. Even from the law that with Purim money one does not check, this is evident, for only on Purim does one not check, implying that with ordinary charity—one does.

Kiryat Sefer ch. 7 halakhah 6 is uncertain whether the obligation to check is by Torah law or rabbinic. See Ha’amek Davar by Netziv to Deuteronomy 15:7 s.v. “be’artzekha,” an allusion to the law that one does not give to someone one does not know. However, one might discuss whether this is only permission to check or an obligation. From the formulation of the law it appears that for food there is a prohibition to check, and if for clothing there is an obligation to check, one must examine what the intermediate zone is, if there is one. If for clothing it is only permitted to check, then the wording in the Shulchan Arukh appears more complete (it leaves no intermediate zone).

And it is difficult why we should not establish the petitioner with a presumption of kashrut / legitimacy. Indeed, we find such a case also regarding the return of a lost item (Babylonian Talmud, Bava Metzia 27b, and Maimonides, Theft and Lost Property ch. 13 hal. 4), where we do not return it without identifying marks, even though the finder admits that the lost item is not his and the claimant argues with certainty. (Although there there is a concern that he is taking from another current possessor, namely, the true loser. And this requires further analysis.) We also find this regarding those who return from the battle formations (see Nachmanides on Deuteronomy ch. 20 verse 8, and in Sifrei there, and in Jerusalem Talmud Sotah ch. 8 hal. 6). However, if the obligation to investigate is rabbinic, then there is more room to understand that this is a special enactment because of deceivers. Beyond that, as I noted above, perhaps it can be said that there is no obligation to investigate at all, and we merely have permission to do so.

In extreme cases of clothing and hunger, this requires discussion. If he were completely naked, it seems reasonable that one should give him simple clothes, examine him, and if he is not a deceiver, give him clothes according to his dignity (see Derekh Emunah ch. 7 note 38, and in Tziyun HaHalakhah note 94, a dispute on this). In a situation of actual hunger, it seems obvious that one gives immediately according to all opinions. In practice, we have seen that with a hungry poor person there is a concern of danger to life (a poor person who asks, “Feed me”; see the case of Nahum of Gamzu, Ta’anit 21a, and my notes to sec. 247), and one must be very careful about this.

And with other bodily suffering (such as cold), it too requires discussion whether to give without investigation. See the index to Frankel here.

And on the whole matter of investigation, see Einayim LaMishpat on Bava Batra 9a, letter 3.

See further in the index regarding the law in Jewish law of Sanhedrin ch. 15, from which it appears that humiliation is worse than bodily suffering.

From here it appears that there is a dispute among Amoraim (the above, in Bava Batra there) regarding the criterion for the various priorities: whether what determines priority is suffering or humiliation. It is clear that in conclusion suffering indeed determines it, but in general both must be taken into account, and clearly there is also weight to the quantity (quality) of the suffering and humiliation in determining priority. This can change with times and places (what counts as suffering and what counts as humiliation, and how severe it is), and the boundaries of such change must be discussed. The criterion itself of suffering rather than humiliation appears unable to change, for it is learned from reason and also from Scripture (and simply, it is all one: reason teaches the definition of the verse).

It seems clear that there are also absolute values that cannot change at all. Priority according to closeness and status appears absolute (not dependent on times and places), except perhaps for the definition of “his place,” which may perhaps change (as I noted above regarding a different political structure). Regarding the purposes of charity, Torah study seems to be an absolute value, although even there there is room to weigh it according to the needs of the hour (and the era of the collapse of Judaism during the Enlightenment is not comparable to other times. It should be noted that the main emphasis on Torah study as an overarching purpose of charity began in that era and continues to our time. The prominent representative is the Chafetz Chaim, but he is certainly not the only one).

Also regarding the redemption of captives there is room to regard it as an absolute value, and further inquiry is needed regarding the other purposes of charity.

It should be noted that although there is no obligation to give without investigation, there certainly is a fundamental obligation to give to a poor person who approaches one (except that in many cases one may investigate first). Of course, this raises the question of how one investigates, and what the law is when he cannot investigate, or when the investigation produced no clear results. And it still requires further inquiry what the law is when he suspects the poor person of being a deceiver. Are there here rules of evidence as in a religious court, or can he rely on his intuition?

And it seems that when he is in actual doubt, he must give by the rule that a Torah-level doubt is treated stringently. (This is a doubt about prohibition and not a monetary doubt, and is unrelated to the well-known words of Rabbi Shimon Shkop regarding a doubt of prohibition in relation to “do not steal.”) Regarding doubt in charity, see the dispute of the Ran versus the Rashba and Nachmanides in Nedarim 7b (see there in the Ran and the commentators around it). And see further Shulchan Arukh sec. 259 hal. 5 and my notes there, and with God’s help in lesson 14.

And the explanation of this dispute is the question whether the prohibition of not giving follows the money, or the opposite. If so, they dispute whether the poor person is in the category of “one who seeks to extract from another bears the burden of proof.” If this is truly extracting money, then the poor person must bring two witnesses. (Although it stands to reason that if the homeowner wishes, he can rely on less than that and give, but he has the right to demand two witnesses.) However, it is possible that money separated for charity is already in the category of the poor’s money (see my notes on sec. 259), and if so this is like a lost item, where there is concern that it is someone else’s money. However, even regarding a lost item there is dispute whether one witness suffices (see Kovetz Shiurim, end of Yevamot). And terumah is given to a priest on the basis of one witness (see Shulchan Arukh, Even HaEzer sec. 3 hal. 2). Further, if he is indeed not poor, then the presumption regarding the money is not in his favor (as with a lost item).

And in the Talmud, Bava Batra 9a, the verse is brought: “when you see (the naked and cover him) — with witnesses.” Maimonides omitted it, while the Rif and the Rosh brought it. And it requires a bit of inquiry whether every giver must receive testimony, since after all there is no testimony outside a religious court (see for example Tosafot, s.v. “befanei,” Bava Kamma 24a). However, for testimony in matters of prohibition, one witness suffices, and it can also be outside a religious court.

And by logic it seems that if the witnesses are like witnesses for extracting money, then they must testify to the petitioner’s current state. But if these are witnesses for prohibition, it stands to reason that it is enough for them to testify that in general they know him and that he is not a deceiver.

However, if he remains in doubt, perhaps in such a case he can exercise his right and tell the poor person that he is not interested in giving to him because he is giving to another poor person. This is discussed in Machaneh Ephraim, Jewish law of Oaths sec. 15 based on Nedarim 65b (the words of the Re’em mentioned there are found in Or Zaru’a, Charity 9, though there he only raises the doubt), and Zekhiya U’Matanah sec. 8. In practice, Machaneh Ephraim’s discussion is on the question whether the benefit of choice in charity belongs to the owner or not (and see also lesson 6 on the matter of priestly acquaintanceship in charity). See also Tosafot, s.v. “ha-omer,” Nedarim 8a, from whose question it is proven that he is not obligated to give to every poor person who approaches him. And from the words of the Rema, sec. 257 hal. 10, and the Shakh 227 note 9, it appears that he may give to whomever he wishes, though it is not necessarily discussing a case where a specific poor person approached him with a request. And perhaps if some poor person approaches him, he would be obligated to give him. See further on this matter my notes to sec. 250 regarding “let not the downtrodden return ashamed,” for from Maimonides it appears that one must give something to everyone who asks. Pay attention! This is a common and very practical point.

In any case, it is important to emphasize: one who does not wish to investigate the poor person who approaches him should know that there is a problem in exempting oneself from giving charity because of non-investigation. In the end I am obligated to give charity, and if I am not satisfied without investigation, it is my duty to carry it out. The poor person is not to blame for my laziness in conducting an investigation (and this is like that story about the student who did not want to pay for travel to his parents, and Rabbi Chaim of Brisk instructed him to walk. The explanation is that in such a case the train fare was for his own benefit, so that he would not grow tired from walking, and not for the sake of his parents. Here too, the investigation is for me, so that I do not fail by giving charity to an unworthy person, or to one who is not poor. The poor person himself is not to blame for my inability to investigate).

Charity exchanges

See Shulchan Arukh here, hal. 12.

It appears from Shulchan Arukh that those two poor people may stipulate in advance that they will give to one another, for otherwise what novelty is there here? And seemingly it follows from here that the matter of charity is the act of giving and not increasing another’s wealth, for otherwise what have we accomplished with such exchanges of charity? This accords with the implication of Maimonides that it is preferable to give to one hundred poor people than to give one hundred coins to one poor person, where we noted that his words imply that there is significance in charity in the very act of giving.

And this itself is the distinction from the case brought by the Rema, that when they are being fined they cannot exchange with one another, because the purpose of the fine is the reduction of wealth from each of them, which is not so with the commandment of charity.

And it requires further inquiry whether they can waive to one another and not give at all, on the side that waiver is like giving, or as if “I have already received” (waiver requires an act of acquisition).

And in Pri Megadim sec. 694 he wrote similarly regarding gifts to the poor, that they can give to one another. There it seems obvious, since the main idea is to increase brotherhood and friendship (and even more obviously regarding sending portions). And there the decisors explicitly discussed mutual waiver, but this is not the place to expand.

Lesson number 6: The law of priestly acquaintanceship in charity

Sources: see the index to Frankel ch. 7 hal. 13 (s.v. “when he is accustomed”), and on tithes ch. 7 hal. 6 (especially in the section on tithe money that brings from Noda B’Yehuda), and in the book Tzedakah U’Mishpat ch. 3 hal. 6 and note 17.

A.

The law of priestly acquaintanceship deals with one who is accustomed to give to his acquaintance: is that acquaintance considered as one who has already acquired the money for several legal matters? Of course this relates to the rules of priority in charity discussed in sec. 251, from three directions: 1. His acquaintance comes first; this itself is one of the laws of priority, and perhaps it is forbidden to change and give to someone else. 2. It is possible that one who has priority by law to receive from him has the status of “priestly acquaintance” regarding charity. 3. If there is an “acquaintance,” even if it has no connection to the laws of priority according to the laws of charity but he is accustomed to give to a certain person, does that person acquire before the giving?

The law of “priestly acquaintances” appears in the topic in Gittin 30a, where the Mishnah deals with one who lent money to a priest, Levite, or poor person, and stipulated with them that when he would have untithed produce, he would separate from it terumah and tithes (for the priest, Levite, and poor person) and would sell those separated portions to others (terumah only to another priest, etc.), and the money would serve as repayment of their debt. And the Gemara there asks how that person fulfilled his obligation of giving terumah and tithes, for these never reached the priest’s hand at all. And the Gemara gives three answers, one of which is that we are dealing with priestly acquaintances, meaning a priest who is an acquaintance of the separator and to whom he always gives the terumah. Rashi there explains that since he is his acquaintance and always receives from him, all the other priests diverted their minds from that terumah, and it is as though it had reached their hands.

Simply speaking, there is here a statement that the priestly acquaintance acquires the terumah even without giving, and therefore the separator fulfilled the commandment of giving to a priest by the very act of separation even without actual delivery.

It should be noted that in the Gemara it is clear that the other answers do not dispute the principle of priestly acquaintances, and the reason they did not establish the case as one of priestly acquaintances is technical (“it does not teach ‘among acquaintances’”). Under pressure one might have said that since so, we are not obligated to accept at all the novel principle of priestly acquaintances. But simply it appears that this is an agreed principle, and indeed the medieval authorities (Rishonim) generally treat it that way (see for example Kesef Mishneh and Mahari Korkos, Jewish law of Tithes ch. 7 hal. 6, who explained in this way the fact that Maimonides ruled like two answers in the Gemara. However, see Meiri there, two opinions on this).

In the Mishnah and the discussion here it is explained that “priestly acquaintances” is a rule that applies to terumah, first tithe, and the poor tithe. However, see Mishneh LaMelekh, Tithes ch. 7 hal. 6, who notes that the Jerusalem Talmud rejected Rav’s interpretation because there is no law of priestly acquaintances regarding the poor tithe. Mishneh LaMelekh explained that this is because with the poor tithe (at least the kind that is not distributed in the house), unlike terumah and tithes, the owners have no benefit of choice, and therefore it makes no practical difference who the homeowner’s acquaintance is. And from Maimonides there it clearly emerges that even regarding the poor tithe there is a law of priestly acquaintances (and it is unclear whether he intends to interpret Maimonides as speaking of the poor tithe distributed in the house, for that is strained and also does not appear from the language of Mishneh LaMelekh). See Chatam Sofer, Yoreh De’ah end of sec. 237, who holds this in practice: that in every matter in which the homeowner has benefit of choice there is a law of priestly acquaintances, and he explicitly wrote so regarding charity.

See Achiezer, vol. 3 sec. 42, who discusses why the homeowner himself cannot acquire on behalf of the poor person, where it does not disadvantage others and with the logic that if he wanted he could declare his property ownerless. See there, where he ties it to the question whether benefit of choice counts as money, for if it is not money it may be that the homeowner can acquire by himself on behalf of the poor person (see also Kehillot Yaakov, Gittin sec. 21 note 2, who made this a dispute between Maimonides and Mordekhai).

In practice, an odd situation emerges here: if the owners have benefit of choice, then there is a law of priestly acquaintances because the others divert their minds, but then it is unclear how this works, for the homeowner cannot acquire on their behalf. And if there is no benefit of choice, then the homeowner can acquire on their behalf, but there is no reason for the others to divert their minds (unless this is simply because in reality this homeowner always acquires for that poor person who is his acquaintance).

In any case, with charity it appears that the owners do have benefit of choice, since they can decide to whom to give their money. If so, it is very reasonable that even according to the Jerusalem Talmud in Mishneh LaMelekh’s explanation, there will be a law of priestly acquaintances in charity. Indeed, the decisors also raise in the context of charity the question whether here too the law of “priestly acquaintances” applies (= poor-person acquaintances), and this has several halakhic implications, as we shall see.

First we shall briefly explain several points in the law of priestly acquaintances itself.

B.

Regarding the law of priestly acquaintances, the medieval authorities (Rishonim) disagree on several fundamental points, and we will briefly explain what is relevant to our matter.

In Tosafot, s.v. “levarer,” Ketubot 102a, it is written that there is also an acquisition by this priestly acquaintance. Presumably this is also Rashi’s intention in Gittin 30a, where he wrote that the other priests withdraw from the terumah, implying that it remains the acquaintance’s property. Simply speaking, the conception is that this is the property of the tribe of priests, and since the others withdraw, the terumah remains his. With respect to charity, it is even more plausible to say this, for as we saw in lesson no. 3 there are conceptions that charity is the property of the poor. In such a situation, if the others withdraw, the money remains the acquaintance’s.

By contrast, in Tosafot, s.v. “hacha,” Bava Batra 123b, it is written that this is like a small gift, meaning that if one promised to give his fellow a small gift, he is forbidden to retract because of lack of trustworthiness (see Shulchan Arukh, Choshen Mishpat secs. 241 and 243), and so long as he has not retracted, the acquaintance is considered in possession of the money. (A practical consequence of possession is, for example, that if the money becomes ownerless, or if its owner dies, it will be his.)

And in Ketzot HaChoshen sec. 204 note 3 and sec. 278 note 15, he cited the Mahari”l that in priestly acquaintances one cannot retract at all. See there, where he elaborated to explain that he can retract, but there is a prohibition to do so, in accordance with the above Tosafot in Bava Batra.

See Kehillot Yaakov, Gittin sec. 21, who discussed at length whether priestly acquaintanceship is an acquisition or possession, for in Gittin it is proven that it is an actual acquisition, for otherwise how can he sell before giving it to the priest? He challenged from this the above Tosafot in Bava Batra, and also the above Ketzot HaChoshen. He explained similarly to our explanation above in Rashi: that the terumah is the property of the tribe of priests, and since all the other priests are set aside, it is as his money, but this is only so long as the owners have not retracted. Yet despite this, the owners can retract and make the money belong again to the entire tribe of priests (for the benefit of choice is theirs). An illustration is that if there were only one priest in the world, clearly all priestly gifts would be his; and nevertheless if another priest were born, the gifts would once again belong to him as well, since the first acquired only by virtue of belonging to the tribe of priests and not by personal acquisition. The owners’ benefit of choice gives them the right to determine who will belong to that tribe that owns the gifts due to him; therefore when he retracts from his intention to give to the acquaintance, the money reverts to belonging to all priests (as if they were just born now), and he can also return and give to another.

However, as Kehillot Yaakov himself noted, it stands to reason that the law of priestly acquaintances would apply to any priest whom the homeowner decided to give to, and not specifically to his acquaintance. See Ketzot HaChoshen there, who learned from this to anyone who swore to give his fellow a gift, but this is not the place to elaborate.

And if despite this one maintains that there is here only possession and not an actual acquisition, following the plain meaning of the language of the above Tosafot in Bava Batra, one must say that with terumah it is possible to transfer ownership before giving it to the priest, and separation suffices.

Another possibility is that this law is rabbinic (and a rabbinic acquisition is effective even for Torah law). See Darkhei Teshuvah sec. 61 note 85, who cites in the name of the Ritva that the entire law of priestly acquaintances is rabbinic (and see there also note 89).

And it requires clarification why the Rabbis enacted this law. It appears that this was so that the priests would find people willing to lend them money, and therefore the Sages gave the homeowner the right to repay his debt from the money of the terumah and tithes that he would later separate (see Rashi at the end of the Mishnah in Gittin 30a, and at the end of the page in the Gemara there).

G.

We saw above that both according to Mishneh LaMelekh and according to Achiezer, it appears that in charity too there will be a law of priestly acquaintances. So too in the above Chatam Sofer (Yoreh De’ah end of sec. 237). The Shakh in sec. 257 note 13 (and see further note 11) cited in the name of Sefer HaTerumot (gate 85, part 3) that there is a law of priestly acquaintances in charity, and so too is written in responsa Beit Shlomo, Yoreh De’ah part 2 sec. 99 in the name of Sefer HaTerumot. The Shakh wrote there that therefore one who lends to the poor person against his gifts need not acquire on behalf of the poor person through another. And the Vilna Gaon there note 13 observed that the Rema did not mention at all that the case is one of priestly acquaintances, implying that one can do this for any poor person. Perhaps the Rema intended to say that with an ordinary poor person one needs to acquire through another, while with priestly acquaintances there is no need to acquire through another, and therefore he also did not enter into the question of acquisition through another and the question of who the poor person is (an acquaintance or another), relying on the law in Jewish law of tithes where the matters are detailed. According to this, the Rema too rules the law of priestly acquaintances.

The Shakh further added in the name of Sefer HaTerumot that the law of priestly acquaintances exists in all charity and not only in tithe.

See further Maharshal? No, Maharshal is not here — rather Maharshalm? Actually: See further Maharsham vol. 4 sec. 87, vol. 5 sec. 77, and vol. 6 sec. 105, who discusses the law of priestly acquaintances regarding charity and funds for the Land of Israel (= charity for the poor of the Land of Israel). See there at the end of the note for additional references.

It appears from the agreement of the later authorities (Acharonim), like Sefer HaTerumot, that there is a law of priestly acquaintances in charity, whether as an acquisition or as possession. Even according to the Ritva whom we cited, that the law of priestly acquaintances is a rabbinic enactment, it appears that in charity there will be a law of priestly acquaintances for the very same reason (not locking the door before the poor).

However, we found a reservation from this consensus of the later authorities, in responsa Imrei Yosher part 1 sec. 4, who wrote that the law of priestly acquaintances applies only in something whose obligation is fixed, like tithe and tithe money (for those who practice it), and see there where he also explained in the Shakh that his intention was only one who is accustomed to give a fixed sum, and not all charity. According to this, not every charity has the law of priestly acquaintances.

It should also be noted that if indeed we understand the law of priestly acquaintances as based on the fact that the money belongs to the tribe of priests, then even in charity this law would apply only to charity money that belongs to the poor; and on this there are various views: either only when one pledged money to charity, or only with tithe money, or perhaps there is no rule at all that charity is the poor’s money.

Regarding changing in charity from priestly acquaintanceship to a relative or a Torah scholar, the later authorities discussed this leniently. See Chacham Tzvi sec. 70, and Maharsham vol. 5 sec. 77 wrote that for any commandment purpose it is permitted to change. See Imrei Yosher above, and Beit Yitzchak, Yoreh De’ah part 2 sec. 96 (see Tzedakah U’Mishpat ch. 3 note 18).

And it was summarized in Tzedakah U’Mishpat ch. 3 note 17 that in practice we are concerned in charity for the law of priestly acquaintances, but after the fact one may retract.

It should be noted that the law of priestly acquaintances in charity can be very practical for one who is accustomed to give to a certain poor person, and what emerges in practice from most decisors is that there is priestly acquaintanceship also in charity. One who wishes to exempt himself from this law must notify in advance, and perhaps retroactive annulment is effective. (However, if there is here a proprietary right, it would not appear to help, for it belongs to the acquaintance. Yet according to Kehillot Yaakov it seems that it is nevertheless effective.)

We should note here that in ראשון לציון on Shulchan Arukh 257:9, he wrote that there is value in not giving to a fixed poor person (this is how he explained the law there in Shulchan Arukh, to scatter his money; see my notes to sec. 251 on giving to many poor people). According to this, the practice of priestly acquaintanceship in charity is undesirable, and it is proper to avoid it.

Up to this point we have seen that if one customarily gives to a fixed poor person, he is in the category of priestly acquaintance. We also saw that the priestly acquaintance, if he has one, takes precedence over anyone else, and ideally one should give him the charity. It still requires discussion whether his relative, to whom he is obligated to give, enters the category of priestly acquaintances. Simply speaking, according to Kehillot Yaakov it appears that yes, for not specifically acquaintances; anyone he is about to give to is in the category of priestly acquaintance.

These are the three connections between the law of priestly acquaintances and the laws of charity that I noted above.

Redemption of captives:

Main sources

Tur and Shulchan Arukh sec. 252. Maimonides ch. 8 hal. 10-14 (and regarding priorities, see also onward until the end of the chapter).

Main points for expansion

In practice, redemption of captives is the highest priority among all the purposes of charity. Because of this, it would have been proper to discuss it in the framework of the previous section (in its second part: priorities according to needs). Since in the Tur and Shulchan Arukh it has a place of its own, so shall we do as well.

There are several guidelines on this subject that appear very relevant and contemporary (for example: in Shulchan Arukh here hal. 4 — redeeming for more than their value, and in hal. 5 — that we do not facilitate their escape!), and it is important to understand their parameters.

The commandments involved in redeeming captives

Maimonides ch. 8 hal. 10 brings several commandments that one violates by not redeeming. (The negative formulation was apparently chosen because one who redeems fulfills positive commandments, but does not “negate prohibitions”; therefore, to point to all the commandments it is better to discuss one who does not redeem, who both neglects the positive commandments and transgresses the prohibitions.)

The captive is included among the hungry, thirsty, and naked; that is, the ordinary commandments of charity apply to him. When he is also enslaved there applies “you shall not rule over him with harshness before your eyes.” When he is also in danger to life there is the prohibition of “do not stand idly by your neighbor’s blood” (and simply, even when he is not in danger to life, for it is no less than the obligation to save his money, which some have written derives from this verse). It should be noted that thanks to Hanan Porat there is today even in the law books of the State of Israel a prohibition of “do not stand idly by your neighbor’s blood,” and as I understand it there is no precedent for this in other legal systems in the wider world.

The relevant positive commandments are: “and your brother shall live with you,” “love your fellow as yourself,” “rescue those taken to death” (Proverbs 24:11), and many other verses and sources (see the source index in Frankel to hal. 10).

Further inquiry is needed concerning the law of returning a lost item, for from it too one may learn an obligation of redeeming captives (and see particularly Be’er Heitev here, who compares it to the laws of a lost item).

In the opening lesson we mentioned the discussion whether these commandments are not present in ordinary charity for the topic at hand. Simply speaking, they are present in every charity, except that redemption of captives is a venue in which usually they all gather together (and therefore the source from Bava Batra 8b for Maimonides’ words indeed says that redemption of captives is a great commandment because all those things written… are all present with captives). That is, this is a very great commandment, both because the need is acute and because several commandments and prohibitions converge here.

Accordingly, it seems that in every case one must discuss it on its own merits. One must examine how many problems are present in the case at hand, and priority is determined accordingly. (Unlike the issue of bodily suffering versus humiliation, which is learned from verses, here it is a rational inference on the basis of the multiplicity of relevant commandments. However, there is also a verse in Jeremiah on the very obligation to redeem, and this requires examination.)

In a case of saving from danger to life, must one give more than one-fifth, and even all his wealth — both by the law of danger to life, and by the law of not transgressing the prohibition of “do not stand idly by your neighbor’s blood,” like any prohibition for which one is obligated to spend all his wealth? See the index to Frankel on hal. 10, and my notes to the law of one-fifth in sec. 249.

And one must discuss spiritual danger to life, which already in the Talmud was linked to the law of redeeming captives. For in many cases the captives, especially if they are minors, will grow up as gentiles and will not keep the commandments, and if so there is an obligation to save them from captivity also in this sense.

And one must discuss what the obligation is in this matter: whether it can be learned from the law of “do not stand idly by your neighbor’s blood,” or from the law of mutual responsibility (all the more so from “you shall surely rebuke,” which comes to prevent him from one sin he is about to commit), or from the law of returning a lost item. Seemingly it is obvious that there is an obligation, for we desecrate one Sabbath in another’s case of danger to life so that he may keep many Sabbaths. However, see on this matter, and also on whether one may desecrate the Sabbath for spiritual danger to life (which is apparently a dispute between Tosafot and Rashba), Rabbi Israeli’s article in Techumin. See also Pitchei Teshuvah here note 7 for what he wrote from She’elat Ya’avetz. One must also discuss whether according to the opinion that forbids doing so, the person himself is also commanded not to desecrate the Sabbath in order to save himself from spiritual danger to life.

And concerning spiritual danger to life, one must also discuss a child who is in secular education and will grow up to non-observance of the commandments: is there not here a full obligation to save him, and perhaps even more than from physical danger to life? For what is the difference between one captive in the hands of gentiles and one captive in the hands of educators who do not keep the commandments, especially today when there are many educators who intentionally direct in an opposing direction (and not only passive non-observance). Included in the discussion is also the obligation of bringing Jews who do not observe the commandments to repentance, which we tend to belittle. (As is known, only Haredim (ultra-Orthodox) “bring people to repentance,” Heaven forbid. We, thank God, are “enlightened.”)

However, perhaps this should be discussed under the law of one who delivered himself into captivity, whom we are not obligated to save (see below). But if so, one should not regard such a secular person as a child captured among gentiles, for by his free choice he chose to deliver himself to this path. One should not hold the stick by both ends (as we not infrequently like to do): either the secular person is a child captured among gentiles, and then the duty is upon us to save him from his captivity, for simply it is no worse than physical captivity; or he is not a child captured among gentiles, and then we should not grant him leniencies on that basis. (The argument here is not on a purely halakhic plane but on the essential plane. On the halakhic plane, of course, the litigant may disagree.)

For the attention of the entire holy community!!!

Changing charity money to redemption of captives

See Shulchan Arukh hal. 1. Maimonides ch. 8 hal. 11.

It is clear that this is not speaking where he vowed for a specific need, for then he has not fulfilled his vow. It is speaking of money designated for that need not by force of a vow. The Rema here wrote even more than this: that one who vows to charity ideally cannot give it to redemption of captives, for this is not included in the charity, and see below and the Taz’s reference in note 4. And in a place of danger to life perhaps we say to him: commit a small sin so that your fellow may merit a great merit (according to those medieval authorities who hold thus). Or perhaps one can say that there is an estimation of the poor people’s intention, who are supposed to receive the money, that since there is no other way to redeem that captive, it is as though it was given to them and they agreed to redeem him with this money. (Though this is strained, for why specifically should they waive their money for this purpose?)

Sale of a synagogue and Torah scroll

See the commentators on hal. 1, and in the laws of synagogue in Shulchan Arukh and Maimonides cited there. See also the Shakh at the end of note 1 that the entire discussion to prohibit is only if through the sale it would become desacralized. But that is not the implication of the decisors.

Regarding a built synagogue, whether there is a prohibition to sell or merely no obligation, see the index of Frankel on hal. 11.

What is the alternative?

See in Maimonides at the end of hal. 11, who concludes, “rather, they should collect from the public for their redemption.” This implies that not selling the synagogue is only an option when there is another solution. And when there is no other solution (it is impossible to collect from the public), then one does sell it. By logic it seems obvious that if there is indeed danger to life here, one is obligated to do so. So too inferred Arukh HaShulchan sec. 252 hal. 2-3. And indeed, according to the reason in the Gemara Bava Batra 3b that people do not sell their dwelling, it is clear that this is only a proper policy of ordering priorities and not a matter of synagogue sanctity that may not be overridden.

However, see Rabbi Israeli’s article in Chavot Binyamin part 1 sec. 16, who distinguishes between ordinary possible danger to life in captivity (due to lack of knowledge) and actual knowledge of imminent danger to life. There the discussion is about redeeming them for more than their value, but perhaps here too one should distinguish so. Simply speaking, in every doubt of danger to life one should act this way.

We do not redeem for more than their value

On the question of what “their value” means, see Derekh Emunah note 77 (and see my note below regarding the law of a Torah scholar, from which there is proof for one of the opinions).

In practice this is an unresolved problem in the Gemara Gittin 45a: whether it is permitted to do so, only one is not obligated to become poor for it, or whether there is a prohibition so that they will not increase in taking Jews captive. Maimonides hal. 12 and Shulchan Arukh hal. 4 ruled like the second side, and of course this has very many practical implications. However, the Radbaz there wrote that perhaps it is because of passive omission, and this is very strained in the language of Maimonides and Shulchan Arukh, for according to that, this was in fact not ruled.

Nachmanides on Gittin 45a wrote that this applies even where there is concern they will kill him (though see the above distinction of Rabbi Israeli). See Pitchei Teshuvah note 4 for what he wrote to disagree. See further Yam Shel Shlomo, Gittin ch. 4 sec. 66 and sec. 72.

Among the later authorities there are those who ruled in practice like the other reason in the Gemara, because of the burden on the public (Shakh note 4 and Bach there, against Maimonides and Shulchan Arukh), with the practical consequence that it is permitted to redeem for more than their value even though one is not obligated. See Derekh Emunah note 78. However, I do not know on what they rely to go against Maimonides and Shulchan Arukh (and see there that this is the custom).

See also Radbaz part 1 sec. 40 for what he wrote on this.

Redeeming oneself and one’s wife

See Shulchan Arukh hal. 4. Regarding his wife, see the index to Frankel on the Radbaz.

And the parameter here requires inquiry. According to one side in the Gemara this is obvious. According to the other side, it appears that we do not demand such a thing from a person regarding himself. However, according to this, a pious person would be stringent and not redeem even himself.

Simply speaking, it appears that a person who redeems himself does not cause the gentiles to increase captivity in Israel, for the whole concern is only that they will see that the Jews are compassionate and willing to pay. But a person is always compassionate toward himself, and here it is clear that where there is a wealthy person there is more concern that he will be taken captive (even if he is a gentile). According to this, there is also no point in being stringent.

All these reasons can also be said regarding his wife. Beyond that, there is the obligation in the marriage contract (her redemption), except that it can be overridden by an enactment of the Sages. However, some understood that the entire obligation is to redeem her above her value, for even without this obligation he is obligated to her by the law of his relative. (And of course one can distinguish, for in the marriage contract this is a monetary obligation toward her and not merely a commandment. And certainly, according to all opinions, he cannot say here that he wishes to give to another charity, etc.)

A Torah scholar held captive

See Shulchan Arukh hal. 4, but it does not appear in Maimonides.

The case of Rabbi Meir of Rothenburg is well known, and the decisors discussed it extensively. It requires inquiry what the reason is that it is permitted to redeem him according to the position ruled by Maimonides and Shulchan Arukh (that the prohibition is because of the concern). Perhaps the need for a Torah scholar in the community, and the desire to educate the public that his value is greater than every other consideration, is the reason.

Simply speaking, one could perhaps say that this is the value of a Torah scholar (“she is more precious than pearls”), and this is according to the opinion that “their value” is according to the value of the captive (an important person, etc.). Seemingly the law of a Torah scholar is a great proof for this.

Regarding prisoners of war of the IDF

See Rabbi Israeli’s article in Chavot Binyamin part 1 sec. 16.

We do not facilitate the escape of captives

The source is that same Mishnah in Gittin 45a, where Tannaim dispute this, and the law follows the anonymous first opinion that it is because of repairing the world in general and not only because of the captives presently there (and see there in the Gemara one practical consequence in the case of one captive).

And during the Holocaust there were many cases where Jews could not flee because the Nazis, may their name be blotted out, would increase the burden on those who remained.

Pitchei Teshuvah brought from Chavot Ya’ir that the captive himself may flee and need not be concerned, and the law applies only to those outside. Again, it requires inquiry why he himself is different, especially according to the anonymous first opinion, which is the law. Above we saw such a discussion regarding redeeming for more than his value, and the reasoning there hardly applies here. It appears that Chavot Ya’ir holds that a person is not required to sacrifice himself for others who are not now in definite danger, and if so Chavot Ya’ir will say the same regarding one who redeems himself for more than his value. However, this question must be linked to the topic of whether a person is obligated to place himself in danger for others (which is apparently a dispute between the Babylonian Talmud and the Jerusalem Talmud; see Kesef Mishneh, Murderer ch. 1 hal. 14). Perhaps one can distinguish, for here we are not dealing with the basic law; rather it seems that this is a special enactment (though this is not necessary). A similar distinction was found among some medieval authorities regarding the permission that a person himself has to save himself from a pursuer without the obligation to save him by injuring one of his limbs (see for example Kli Chemdah at the end of Balak).

And regarding IDF captives this requires inquiry in such a case. It also requires inquiry why it is permitted to free them by force. See Chavot Binyamin by Rabbi Israeli on the Entebbe operation (sec. 17), who did not take this law into account at all. See there also regarding the obligation to endanger oneself to save another.

A captive who sold himself or who does not want to redeem himself

See Shulchan Arukh here hal. 6 and 11.

And it requires inquiry why this is different from a poor person who is responsible for his poverty. Perhaps one can distinguish between one who acted to become poor — and certainly one who is not poor at all but simply does not want to eat from his own funds — and one who merely could have extricated himself (see sec. 253 hal. 10, and lesson 8).

The relationship between redeeming a man and a woman

See Shulchan Arukh hal. 8, and Maimonides ch. 8 hal. 15.

Seemingly one sees that the obligation of rescue is in order to preserve commandment observance (and see also sec. 251 hal. 8). If so, there is room to discuss the law of a person who does not observe Torah and commandments even if he is a child captured among gentiles. Clearly there is reason to redeem him, for he can observe commandments (as with saving him by desecrating the Sabbath), but regarding priority it would seem that a Jew who observes Torah and commandments takes priority for rescue. A practical implication for doctors and others!

But one may reject the conception that the rescue is for the sake of preserving commandment observance (see the general lesson in ch. 8 of Yoma, which dealt with the obligation to desecrate the Sabbath in order to save a life under the rule that he should keep many Sabbaths, and discussed whether that is literal), for male homosexual rape is not only a need of commandment but also a human distress from which we must save him.

Of course, if there is an essential reason that endangers, or makes one more endangered than the other, the laws of priority can change, as is proven from the law of prioritizing the woman and the man according to the concern of homosexual rape (see this law in Shulchan Arukh).

Pay attention to Maimonides’ formulation in this law.

And see Pitchei Teshuvah here note 7.

Priorities between one’s father, mother, and teacher

See Shulchan Arukh here hal. 9. Maimonides omitted it.

These laws are taken from the laws of returning a lost item, and from the Gemara in Bava Metzia that discusses them. Perhaps for this reason Maimonides omitted them here.

See sec. 242 hal. 34, and the details of the laws there (whether it applies only to one’s primary teacher; and whether when his father pays the wages to his teacher the law is different — see Rabbi Akiva Eiger there and here). The omission of these details here is for a similar reason to Maimonides’ omission. This is the explanation of the reference in the gloss there.

A man who refuses to redeem his wife

See Shulchan Arukh here hal. 10.

It requires inquiry whether his wife takes priority over him because of his obligation toward her or because she is a woman who takes precedence over a man for redemption. See the Vilna Gaon, who brought both reasons, and his reason is simple: clearly, if he were not obligated to redeem her, then although a woman precedes a man, if he himself were captive it is obvious that he comes first to be redeemed from his own money. On the other hand, if there were only the law of obligation to redeem her, it is still clear that he is permitted to redeem himself first, and if he has nothing he would be exempt from redeeming her like one who has no money (compulsion).

The father’s obligation toward the son

See Shulchan Arukh hal. 12.

See the Shakh’s reference here in note 12, and my notes there (sec. 257) and in sec. 251 regarding the priority of kinship.

The obligation to reimburse the money of redemption, and the law of warding off a lion

See in the Rema hal. 12 in the name of Mordekhai and Terumat HaDeshen, and in the commentators, but this is not the place to elaborate. Seemingly it is difficult from the Rema’s own words in Choshen Mishpat sec. 292 hal. 9 that he is not obligated to reimburse. (He explained there that this refers even when the funds were deposited with the charity collector and thus are money for which there are claimants.) It appears that there, after all, it is money for redeeming captives and therefore he too can seize it and acquire it, whereas in Yoreh De’ah it refers to the money of an individual and not of a public fund, and not necessarily money designated for redeeming captives.

Redemption of captives nowadays

See the heading of this section in Arukh HaShulchan. I did not understand whether his intention was genuine or because of fear of the censor.

Lesson number 7: The poor’s money

See lesson no. 3, and lesson no. 12 regarding the legal status of the poor’s money. And regarding monetary law concerning the poor’s money (such as interest, remission of debt for charity, the oath of custodians over the poor’s money, and the like), see Nikadesh BiTzedakah ch. 23, Tzedakah U’Mishpat ch. 10, and Kehillot Yaakov Rosh Hashanah sec. 3 (s.v. “and from now we must consider”).

The aspect of the laws of doubts in charity will be discussed in lesson 13.

Practically speaking, in terms of subject matter, it is preferable to give this lesson after lessons no. 12 and 13.

Who is fit to receive charity:

Main sources

Tur and Shulchan Arukh sec. 253. Maimonides ch. 9 hal. 13-17. Their sources are in the topics of the Talmud.

Main points for expansion

In this section we discuss the question: who is a poor person permitted to take charity? That is, what must we examine when we give charity (if one needs to examine, as for clothing; see sec. 251 hal. 10 and my notes there), and when is the poor person himself permitted to take?

At the outset we will mention the distinction we made in lesson no. 2 between a poor person and a needy person, and in the various cases in this section one must examine: who is poor and who is needy? Is there such a distinction at all? And what are its practical consequences? In particular one must examine (as we raised there at the end of note 3) the law of a wealthy person who took charity, whether he is obligated to return it — does it depend on the question whether such a person is poor or merely needy? See there what I wrote on this.

Two meals per day

Tur and Shulchan Arukh at the beginning of the section, and Maimonides hal. 13.

The difference between the public charity fund and the soup kitchen is that the public fund is distributed weekly in advance, and the soup kitchen daily. That is, the measure is two meals per day. One must discuss whether nowadays, when the custom of the world is three meals even on weekdays, the obligation changes. By logic it seems that it does, for this is “what he lacks.”

And regarding the law of “make your Sabbath like a weekday” that appears here in the Taz, see sec. 255.

It also requires inquiry what the law is for one who takes from a private individual (not from the public fund or soup kitchen): is the criterion similar? It stands to reason that if he takes for sustenance, the law is as above. Perhaps since there is a public fund and a soup kitchen, he should not take at all from a private individual for his sustenance. Some wrote that if he does not take from the public fund he is like a rich person who starves himself (see below hal. 10). For other needs, see below.

Two hundred zuz

See the Mishnah at the end of Pe’ah, from which it appears that the measure of two hundred zuz is one year’s livelihood, and gleanings, forgotten sheaves, and corner-gifts are like the public fund, which is distributed once a year. However, in the Mishnah the measure of two hundred zuz appears only for gifts to the poor and not for charity, and the Tur altered the language of the Mishnah and added charity. The Beit Yosef inferred (and so too Rashba in responsum 1172 in part 1) that the measure regarding charity is the same as the measure regarding gifts to the poor.

It is clear that the measure of two hundred zuz is for ordinary expenses, and one upon whom unexpected expenses have come may take more (“what he lacks”).

One who has two hundred minus one dinar, and food for fourteen meals

See Shulchan Arukh hal. 1 and Derekh Emunah note 77 and Igrot Moshe, Yoreh De’ah part 1 sec. 146, that he may take as much as he wishes, as in the law of two hundred zuz minus one dinar appearing in Shulchan Arukh hal. 1.

This law’s reason requires inquiry. It appears that this law was said only where there is enough in the public fund for everyone who needs it (and even so it is a novelty), and therefore one must say that this is only an estimate of who is called poor, and when he has the status of poor one may give him charity as much as one has to give in one act. See also Derekh Emunah note 86.

This is a very formal direction, but such emerges from the law of two hundred minus one dinar. Seemingly this accords with the understanding that the act of giving charity is the primary matter of the commandment, and not enriching the poor person. According to this, his being poor is only a condition so that the giver may fulfill his obligation of giving charity. For if the purpose of the giving were to enrich the poor person, there would be no sense at all in this law (see the opening lesson and more).

Or perhaps one can say that the money in the public fund is the poor’s money, and therefore they are all partners in it (see lessons 3 and 6). Therefore, when there is someone who has two hundred, he is not of the tribe of the poor, and therefore if he takes he is a robber. But if a person belongs to the tribe of the poor, then the money is his just like that of any other member of the tribe, and therefore he may take as much as he wants from the public fund and is not stealing. Perhaps this explains well why in this law they speak specifically about the public fund and not about a private individual, for charity money of a private person that has not yet reached the collector’s hands is not the poor’s money at all. See my notes below on a poor person who owns utensils and property, on what the Tzafnat Paneach wrote, which implies this. However, according to this, it is clear that it is not proper for him to use this right, even though he is not considered a robber.

The status of debts

On this matter there are two discussions: 1. Whether a person who has money but is sunk in debt is called poor. 2. Whether, when he receives charity, creditors may collect from it (bank account seizures, as is common in our times).

It further requires inquiry regarding one to whom others owe money but who currently has none. (Perhaps this is the intention of the Taz note 2 and the Perishah, who wrote that it refers to debt he owes others, to exclude a situation where others owe him, which is not considered poor. And of course this is not a necessary inference.) See on this in the book Nikadesh BiTzedakah secs. 148-152.

In the Tur and Shulchan Arukh hal. 1 and Maimonides hal. 13 here, it says that his debts are counted against him, meaning that he may take charity.

Regarding point 2, see Shulchan Arukh hal. 12, which says that one cannot collect from charity for his debts. The Rema there implies that the problem is that the donors did not give to him with that intention. Therefore if they gave to him on that condition, it is permitted to take; see there.

However, the Vilna Gaon note 18 and Chazon Ish sec. 86 note 109 disagree with the Rema and hold that in every case the creditors collect.

According to the Rema, one must discuss whether this is a condition in the giving or whether it was never given to him for that at all (partial acquisition). A similar discussion exists also in the topic of the Purim collection being for Purim (Bava Metzia 78b), see the whole topic there: one who gives a poor person money to buy him a cloak may not buy with it a tallit, and one who deviates from the owner’s intention is called a robber. See Derekh Emunah ch. 9 note 124, and see sec. 259 and my notes there.

Regarding whether one who owes others is considered poor, it seems possible to bring proof from the law of a wealthy person traveling from place to place (below hal. 4), who may take charity even though he has property at home, and even when he returns he is not obligated to repay the charity. See there for the details of the laws (for example, that if he can borrow, some say it is forbidden for him to take). From the words of Rabbi Yerucham brought in Shakh note 9, one may also infer that he is in the category of poor; see there. So too it seems possible to infer from the law brought here in hal. 3 (though this can be rejected).

The law nowadays

The Tur here brought in the name of “some say” (also brought by the Shulchan Arukh in hal. 2) that all these measures were said in their times, when people would take gleanings, forgotten sheaves, and corner-gifts, and when the public fund and soup kitchen were practiced (see also Shakh here note 1 in the name of the SeMaK). As is known, the measure of two hundred zuz is a year’s subsistence. Nowadays, when all this is not practiced, there is another measure: until he has principal enough to support himself from the profit. (And obviously the same applies to one who has a business from which to support himself, or a stable job with a proper and secure salary. I have now seen this cited in the name of Rabbi Wosner in responsa Shevet HaLevi, Yoreh De’ah sec. 120.)

The law of one who has expensive utensils and property

See Shulchan Arukh hal. 1 here, and Maimonides ch. 9 hal. 14.

The essence of the law is that he is not obligated to sell the utensils of his personal use and his home, but other utensils and other real estate he must sell before becoming dependent on taking charity. And the measure of two hundred zuz includes all the assets he is obligated to sell.

It is clear that we are not dealing here with Jewish laws belonging to sec. 255 (the obligation upon the recipient to avoid having to rely on charity), but rather with the laws that determine who is a poor person to whom charity may be given (to whom the giver is obligated to give). There is no doubt that one who wishes to act beyond the letter of the law (and perhaps with respect to the recipient this is actually the letter of the law) would also sell household utensils in order not to have to rely on gifts from flesh and blood.

And the reason for this law, that he is not obligated to sell, is that these utensils (even if they are made of gold) constitute “what he lacks.”

And it is written in the Shulchan Arukh and Maimonides that after he has come to rely on the communal charity fund, he must sell all his utensils and use the cheapest ones possible. See Tzafnat Pa’neach on Yad here, who explained that the money of the fund in the hand of the administrator is the property of the poor, and they are not obligated to give to one who has silver and gold utensils. See on this matter my notes to sec. 250, where I wrote what Meiri says in Ketubot regarding the obligation to give someone more than I myself have, and Tzafnat Pa’neach agrees with him. And if so, according to Tzafnat Pa’neach, it seems that from here there is proof that this is also the Jewish law according to Maimonides and the Tur-Shulchan Arukh.

But this can be rejected, for perhaps what he must sell is because he is now taking at the expense of the other poor people (even though it is still not yet theirs, and unlike Tzafnat Pa’neach). According to this, there is no proof from here for the above law of Meiri.

And a practical difference would arise in the case of a person who designated money for charity but did not hand it over to the administrator; it is certainly not yet the money of the poor, but it will certainly go to charity. In such a case, if a poor man who owns gold utensils and property comes before him, it depends on the above inquiry.

The law of a deceiver

The Shakh here, subsection 4, writes that if it became known that he was already wealthy (= he has 200 zuz) at the time he took, he must sell his utensils (even those that, as a poor person, he would not be obligated to sell). Seemingly, he is simply a thief, and the religious court descends to his assets and takes the theft from him (see Leket HaKemach in the name of Radbaz; and see HaTzvi VeHaTzedek sec. 4, paragraph 3, p. 40 and onward).

And this is obvious when he takes from the communal fund, for then he robs the poor. However, one may discuss a case where he takes from a private individual, in which case it turns out that he did not fulfill the commandment of charity, but he did not lose money. In such a situation he caused him to lose a commandment, not money (and it seems that at the very least he must pay him ten gold coins, similar to one who snatches a commandment. Here he is one who damages a commandment and not one who steals it, since he himself also did not fulfill it in place of the giver).

However, there is an assumption here that the commandment of charity was not fulfilled when the recipient is a deceiver. And so it appears from the end of the chapter in Bava Kamma (16a), and likewise in Bava Batra 9b regarding the people of Anatot, about whom Jeremiah asked the Holy One, blessed be He, to cause them to stumble with unworthy people (and we have already wondered whether the intention is deceivers or transgressors who are not entitled to receive charity. See my notes to sec. 251, beginning of part 1, regarding willful transgressors).

See also Maimonides, ch. 10, law 19, what he wrote about such a “righteous person.”

A householder who travels from place to place

See the Tur-Shulchan Arukh here, law 4, and Maimonides ch. 9, law 15.

And one may discuss whether, when he can take a loan, he may also take from charity. It seems that the halakhic decisors disagreed on this. Arukh HaShulchan at the end of subsection 1, in the name of the Vilna Gaon, writes that it is obvious that he does not take from charity. On the other hand, I saw in the book Tzedakah U’Mishpat (by R. Bluya, in ch. 10 note 28) that he inferred from the Sma, Choshen Mishpat 292, who explained the words of the Shulchan Arukh there in subsection 9, that he need not take a loan (unlike Arukh HaShulchan), but in my humble opinion this is not compelled at all; see there. And it seems (both by reasoning, and from the fact that it is not clear that the Sma disagrees) that the Jewish law follows Arukh HaShulchan and the Vilna Gaon.

And this is somewhat difficult from what is written in the Talmud / Talmudic text, that “since if he wished he could declare his property ownerless and become a poor person” (for example Eruvin 31a and parallels), implying that even when it is in his power to acquire from ownerless property he is considered poor (and here too he himself caused his own poverty. See below in lesson 8).

See Gilyon Maharsha regarding the case when he returns home, that he need not repay. And so it is in the Shulchan Arukh here in law 5. And it is obvious that if he took it as a loan he must repay it (see Rishon LeTzion here). And in the novellae of Hatam Sofer, Hullin 131, he writes that if he did so using tithe money, he is legally obligated to repay it anew.

However, in the commentary to the Mishnah, Pe’ah ch. 5, Maimonides writes that it is a pious trait to pay back when he returns. See above sec. 251, beginning of part 2 of my notes, regarding the preference for distributing charity in several givings, which appears in the commentary to the Mishnah and does not appear in the legal code. And we explained there that pious conduct does not appear in Maimonides’ legal code (as the author of Einayim LaMishpat wrote in the introduction to his book).

Surplus charity funds

See the Shulchan Arukh here laws 6–7, and Maimonides ch. 9, law 18.

This is a very common situation, where after the collection it becomes clear that there is no longer a need (or sometimes that there is too much). There have already been several cases of organizations that collected for expensive treatments for patients, and much money remained in their hands after the patient died. See Derekh Emunah subsection 123 for the priorities in this matter.

And one may discuss here whether this belongs to monetary law (that the money belongs to “the tribe of the captives” and the like), or whether it is simply forbidden to deviate from the donor’s intent (and many halakhic decisors discussed it in terms of disgrace to the needy person, with their source from Sanhedrin 48a).

With surplus funds collected for the dead, to be used for the dead, it is difficult to explain that it belongs to “the tribe of the dead,” but it is possible that it belongs (in monetary terms) to the public fund designated for caring for the dead. See below in the Tur-Shulchan Arukh sec. 356.

And this depends on the law of “with your mouth” — this is charity — whether the money belongs to those for whom it was donated, and under what circumstances. See below sec. 257–259. Seemingly this is the dispute in law 7 here, though from the wording of the rationale in the above law it is possible that the intention is only to discuss estimating the donor’s intent. See also Derekh Emunah subsection 128, two opinions regarding the power of the administrators. And see Kovetz Shiurim, Ketubot sec. 314, who brings a dispute among the medieval authorities (Rishonim) on this, and according to one view it is literally a matter of legal acquisition; see there. See further Tzedakah U’Mishpat beginning of ch. 9 and laws 4–11 there, especially note 17 there. See below in lesson 13.

A poor person who does not want to take

Tur-Shulchan Arukh here law 9.

One should note that in sec. 255 every person is commanded not to take, that is, to conceal the fact that he is needy. But here we are commanded nevertheless to outwit him and give him. That is, there is here an action moving in opposite directions: the poor person is commanded to try not to take, and the householder is commanded to try to give him nonetheless. Of course there is no difficulty here. However, it is somewhat difficult: how do we have permission to cause someone to take a gift from flesh and blood when he himself does not want that? It is a great novelty that it is permitted (and even required) to force someone by means of cunning to accept gifts, even though he himself is not interested and thinks he will manage (and if this were literally a matter of saving life, it seems no one would say that he does not want to take and would rather die. And if he does say so, this touches on the question of the obligation to save a suicide).

It is told about R. Elchanan Wasserman that he asked regarding his teacher the Hafetz Hayyim: if a genius like him tries to hide himself from us, how will we small people succeed in recognizing his greatness? Understand this well.

I also once saw (and Rabbi Zevin hints to this story at the beginning of the chapter on Rabbi Chaim in his Ishim VeShitot) about Rabbi Chaim of Brisk, who during the World War (the First, of course) was exiled in another city (Minsk, if I recall), and there was a great multitude of destitute Jewish refugees there, and the charity administrators would consult with him on every matter (and many things truly involved matters of life and death). In the end they discovered that his own household simply had nothing to eat that entire period, and he himself was unwilling to take. When they discovered this they tried to pressure him, and there were several wealthy men who wanted to give him whatever he desired, but he would not accept in any way. In the end they caused him somehow (I think they outwitted him) to take at least for the sake of his household.

And this already relates to law 11 here, regarding giving to a Torah scholar who does not want to take. And it requires further examination whether the Shulchan Arukh intends to distinguish between an ordinary poor person (discussed in law 9) and a Torah scholar (discussed in law 11). In fact, there is reasoning to distinguish in this way, for the difficulty we raised above is much stronger regarding a Torah scholar: if he does not want to take, he has apparently made his own calculation, and certainly will not put himself into danger of life for this. If so, specifically regarding a Torah scholar there is room to forbid giving to him by trickery. Specifically regarding an ordinary Jew, it is possible that even if he does not want to take, we do not rely on his judgment, and therefore it is permitted to outwit him. See below in sec. 255 law 2.

However, I did not find that anyone noted this, and even in the topic of a Torah scholar perhaps the case is one of trickery (that people buy from him at an inflated price), and I am not sure that the intention here is to trick him.

One should note that from the law here it is clearly proven that there is a commandment of charity toward a poor person who does not ask, and even toward one who does not want it.

A pauper who is to blame for his poverty

See below, lesson 8.

Lesson number 8: A pauper who is to blame for his poverty

A.

It is stated in the Shulchan Arukh sec. 253 law 10:

A wealthy person who starves himself and is stingy with his money so as not to eat from it — we do not pay attention to him.

There is here a situation of a person who is not poor, yet nevertheless seeks charity. Here it seems very reasonable that we do not give him charity, since he himself has means. On the other hand, in the case of a poor person who is to blame for his poverty, but who now truly is poor, there is room to say that the obligation to give him remains in force, since in the end he is now poor.

In Rema sec. 252 at the end of law 12, he discusses a relative who can redeem his relative, and writes that there is no obligation upon us to redeem that person, for not everyone may enrich himself and cast the burden upon the public. And here the discussion is about his relative and not about himself, so it is obvious that he himself cannot cast himself upon the public. However, once he is already under compulsion, and now cannot redeem himself, then there is room to say that the obligation does indeed rest upon the public. And furthermore, one may distinguish that the Rema is speaking about the prohibition incumbent upon the relative and his obligation to redeem his relative, but if he indeed does not do so (and the public cannot compel him), it is very likely that the public would still be obligated to redeem his relative, for why should he suffer because of his relative’s doings?

Similar discussions appear in sec. 252 law 6 and law 11, where it is explained that even one who sold himself to idolaters or was captured because of a loan from them is redeemed (twice, but not the third time), even though the captive is to blame, and if they sought to kill him they redeem him even many times over. And in law 11 it seems not to be related to our case, because there it concerns one who has property and does not want to be redeemed; they redeem him against his will, and the meaning is probably from his own property (and it is not clear whether in law 6 the discussion also includes where they themselves do not want to be redeemed, or only the obligation to respond to their request).

In light of all this, one must examine the command to give every poor person enough for what he lacks, even to the point of a horse to ride on. At first glance this command, in simple thought, is hard to accept: why is it incumbent upon me to provide that person with needs that are really luxuries, objectively unnecessary? One might have framed this in terms of a poor person who is to blame for his poverty, for he himself is to blame, since if the horse were not important to him, he would not be considered poor at all. And on the other hand, once the law of “what he lacks” has been introduced, why should we not say that I am obligated to give charity to any poor person who is to blame for his poverty?

Another point is the prohibition against not giving to a poor person on the excuse that his poverty is because he did not go to work and support himself (see Sefer Mitzvot Katan, commandment 20, cited in lesson no. 1). Here too it seems that a poor person who does not want to go work, nevertheless I still have an obligation to give him. However, it seems obvious that one must distinguish between a case where the claim against the poor person is only an excuse in order to exempt oneself from giving charity, and a case where it is a reasonable claim, when I see with my own eyes that he has such an option (and see below on this).

In summary, there are two basic situations in the topic of a poor person who is to blame for his poverty: 1. Someone who is to blame for his poverty, but now is truly under compulsion. 2. Someone who now does not want to help himself (either to go work, or he literally has money and does not want to use it). The case of a poor person who asks for a horse to ride on is doubtful as to which of the two categories it belongs to. At the end of our discussion we will examine a poor person who does not want to go work for his living, whether he is similar to case 1 or case 2, and it seems that the practical difference is whether one is obligated to give him charity or not.

B.

The hesitation regarding one who is to blame for his poverty is whether to regard him as needy, since in practice he is such, or perhaps since he is to blame, the burden does not rest upon me but upon himself, in the spirit of “you shall surely help with him” — that is, only with him, not without him. And regarding the law of returning a lost object, in the case of an intentionally abandoned object we find that there is an exemption because intentional abandonment is despair, but it seems that fundamentally there is an obligation of return even in a case of intentional abandonment (though one may distinguish, for there it is only with respect to the prohibition against taking it for oneself and not with respect to the obligation to return it).

Seemingly, there is room to connect this discussion to the question whether one who brings himself into a state of compulsion is indeed considered under compulsion or not, but the connection is not necessary. One may say that even though he is considered under compulsion from the standpoint of Torah law, in the end I am not obligated to bear the consequences of his actions. And one may also say the opposite: even if he is not under compulsion from the standpoint of Torah law, still right now he is hungry and I must sustain him.

A more plausible connection appears to be to the topic of saving a suicide. In that case the discussion proceeds exactly on the plane of my obligations toward someone who is to blame for his situation, and perhaps is even actively causing it. However, there are differences, such as concern that the suicide’s judgment is unsound, and the irreversibility of the result of his act. On the other hand, there is also a difference in that in suicide the damage itself is caused by the suicide, rather than his merely bringing himself into compulsion.

Because of the extremity and irreversibility of a state of death, there is room to examine the law in parallel topics in a monetary context. Of course, with a poor person who is dying and who himself is to blame for his poverty, there is strong reason to say that we must give him, but that would not be from the laws of charity but from the laws of “do not stand idly by your neighbor’s blood” (and this relates to the discussion of saving a suicide within that framework). In monetary contexts this topic seems similar to returning a lost object in the case of intentional abandonment, to “do not stand idly by your neighbor’s blood” as expanded by halakhic decisors regarding his property, to “you shall surely help with him,” and the like.

A more extreme case, on the other side, is when someone says to me: “Tear my garment and be exempt.” Here it seems that with the consent of the injured party there may be permission for me actively to cause him damage, and not merely refrain from saving him. Of course, we will not discuss such a case here at all.

G.

The law that appears in Shulchan Arukh sec. 253 law 10, and also in Maimonides ch. 7 law 9, has its source in Ketubot 67b, where Rabbi Yehuda and the Sages disagree about it. Rabbi Yehuda holds that one gives to him and collects from his estate after his death, while the Sages — whose view is the Jewish law — hold that there is no obligation to give him.

Rashi, ad loc., explains that this refers to one who afflicts himself with hunger, and it stands to reason that according to Rabbi Yehuda there is concern that he may die, whereas the Sages are not concerned with this.

And the author of Arukh HaShulchan, sec. 253 law 17, writes that if he truly reached the gates of death, even the Sages would agree that we must give him. According to this, if the wealthy person goes about naked, we are not obligated to give him charity, since there is no danger in that.

However, the Ran on Ketubot there writes that we are not concerned, and if he dies — let him die. This implies that there is no obligation at all to save him from himself.

It stands to reason that this understanding of Arukh HaShulchan in Rashi derives from the fact that if there is no concern of death, certainly there is no obligation upon us to give him, for we are not obligated to enrich him but only to sustain him. The dispute among the medieval authorities (Rishonim) is only over where Rabbi Yehuda disagrees: whether in a case of possible danger to life, or only in a case of certain danger to life.

However, the law of one who sells himself into slavery (sec. 252 law 6, and Maimonides ch. 8 law 13) is different, as we saw, and there there is an obligation to redeem him. This can be attributed to the severity of captivity, but it seems there is no need to reach that, because the case is different. The captive brought himself into a state of compulsion, but now he is truly under compulsion. And that is not similar to a wealthy person who starves himself, for even now he is not under compulsion and can eat from his own.

If so, it seems that in the case of one who causes evil to himself there is no obligation to give him, but if he brings himself into a state that in itself is complete compulsion, then there is an obligation to help him.

And seemingly, from here a halakhic conclusion emerges: according to the Sages there is no obligation to save a suicide. However, according to Rashi and Arukh HaShulchan this is only in a case where there is concern that he might die, but in certain death there is an obligation to save him. According to the Ran, however, it seems that even in certain death there is no obligation to save him.

Yet this can be rejected, because in saving a suicide we are dealing with one who is drowning in a river, and there he has brought himself into compulsion. By contrast, one who starves himself to death is killing himself now; that is, he is not bringing himself into compulsion, and therefore there is room to say that even according to the Ran, in such a case we would need to save the suicide.

This topic is a lengthy discussion among the halakhic decisors.

Minhat Hinukh on commandment 237 subsection 2 discusses “do not stand idly by your neighbor’s blood” when the fault lies with the one who is about to die. He argues that regarding money there is no doubt, for this is intentional abandonment of property, which one is not obligated to return (even though it is not ownerless, and see there in the Rema sec. 261 that it is also ownerless), and therefore regarding life too it is clear that there is no positive commandment of returning the loss of his body. And he writes there that it is clear that he is not warned even by a prohibition, for the Talmud in Sanhedrin asked why a prohibition is needed for one drowning in a river — let it be derived from “and you shall return it to him,” to include the loss of his body. Minhat Hinukh notes that the Talmud could have brought the case of one who destroys himself knowingly as a practical difference. It is thus proven that there is no practical difference and there is also no prohibition with respect to one who destroys himself knowingly.

However, his proof is seemingly somewhat difficult, for the Talmud brought a practical difference between two prohibitions, and not between the prohibition and the positive commandment. If so, one could say that with one who destroys himself knowingly there is also the prohibition concerning loss of his body, and therefore there is no need for a prohibition concerning one drowning in a river (“do not stand idly by your neighbor’s blood”). However, regarding property loss it seems that even the prohibition does not exist, for otherwise one should have to return intentionally abandoned property under the prohibition. If so, Minhat Hinukh is right that from the Talmud it is proven that there is no prohibition here. That is, from lost property it is proven that regarding one who is responsible for his own loss there is neither prohibition nor positive commandment, and therefore from this law it is clear that the same applies to the loss of his body. However, regarding the loss of his body there is an additional prohibition of “do not stand idly by your neighbor’s blood,” and Minhat Hinukh proved that there is no more there than the prohibition of loss, meaning that there is no obligation to save a suicide even under “do not stand idly by your neighbor’s blood.”

But in the book Kli Hemdah, Ki Tetze, he brings a group of medieval authorities (Rishonim) and halakhic decisors (Maharam of Rothenburg, Rivash, Ri Migash and others) who disagree with Minhat Hinukh, and he rejects his proof from the above Talmudic passage in Sanhedrin (see in the scientific edition of Minhat Hinukh there subsection 5). And in Birkei Yosef, Orach Chayim sec. 301 subsection 6, he writes that one may even desecrate the Sabbath in order to save him.

And in the notes there on Minhat Hinukh it is explained that Minhat Hinukh is following his own reasoning, for he holds that one who destroys himself knowingly does not violate “You shall not murder,” but rather “But for your blood of your lives I will demand an account,” meaning that a person has rights over his own body. According to this, perhaps there is no obligation to save him, for this is not murder. But it requires examination why one should not save him from violating “But for your blood,” since saving a person from sin is also learned from “do not stand idly by your neighbor’s blood” (see Sefer HaHinukh there commandment 239).

And as explained, it seems that the medieval authorities (Rishonim) here apparently disagree along this very line. According to the Ran there is no obligation to save him from suicide, and this accords with Minhat Hinukh, whereas according to Arukh HaShulchan in Rashi’s approach it seems there is an obligation to save him, as the other halakhic decisors hold. However, this can be rejected, for the topic in Ketubot concerns one who starves himself, while the obligation of “do not stand idly by your neighbor’s blood” concerns one who is drowning in a river, where he has brought himself into compulsion, and in that case one could say that even according to the Ran one must save him, as most decisors hold, as above.

One may also discuss disconnecting a patient from machines, but this is not the place to elaborate.

In any case, it seems clear that to save him from monetary poverty that he himself actively causes himself, there is no obligation at all, as in the law of returning a lost object, and therefore we are exempt from giving him charity.

And regarding one who brings himself into compulsion, we find explicitly that even with money, what is given to him is charity. For in several places we find that one who declares all his property ownerless may take gifts for the poor (see for example Bava Metzia 9b, Nedarim 84b, regarding “since he can acquire for himself”).

And it seems obvious that if he declares his money ownerless three times, as with the captive, he would not be able to take gifts for the poor.

In any case, it seems that one who has declared his property ownerless may take, even though he himself is to blame for his poverty. If so, from here it is proven that with regard to one who brings himself into monetary compulsion, there is a commandment of charity.

However, one may distinguish between one who may take charity and one to whom we are obligated to give. That is, if we redeem him from captivity or feed him, perhaps we have a commandment of charity, even though there is no obligation upon us to do so. But seemingly one needs a source for the idea that there are situations in which the commandment of charity is only existentially fulfilled and not obligatory.

And so too the halakhic decisors wrote (see the book Nikdash BiTzedakah sec. 148), concerning what Rashba wrote (Shevuot 25a) and those with him, that there is no obligation to give a poor person for tomorrow’s needs, yet if one gave, he has the commandment of charity (and see there note 3 for several additional examples).

Similarly, perhaps one may say that there is here a positive commandment to give him, but there is no prohibition, for there is no hardening of the heart if one does not give him because of his own fault.

In the straightforward sense, however, it still appears from the case of one who declares his property ownerless that there is an obligation to give charity to one who brings himself into compulsion.

And one may object that ordinarily one who declares his property ownerless can reacquire it, so why should there be an obligation to give him charity? In the end he is now causing himself the problem, and in such a case we saw that one is exempt from giving him, unlike one who brings himself into compulsion, whom one is obligated to give.

Therefore it is reasonable to say that one who declares his property ownerless is not similar to one who starves himself, for even if he can reacquire the property, that is an action to extricate himself from the compulsion in which he now finds himself, since right now it is not his. By contrast, with a wealthy person who starves himself, he is not under compulsion at all, since the money is his, and in such a case one is not obligated to give him. That is, one who declares his property ownerless has the law of one who brings himself into compulsion, not of one who actively harms himself, and therefore charity is relevant to him.

And of course this discussion raises the question regarding a person who does not go to work, whether he has the law of one who brings himself into compulsion or of one who actively harms himself, in which case there is no obligation to give him. See below.

And so too it appears from the law of a householder who travels from place to place, where the case is that at home he has money, but on the road he has the status of a poor person. Seemingly he himself is to blame for his poverty (see my notes in the accompanying pages to sec. 253 above). However, here we are dealing with one who brought himself into compulsion, for now he is truly under compulsion. Beyond that, it is possible that the reason he is traveling from place to place, such as earning a living, is legitimate, and then he is not considered at fault for his poverty.

D.

Now, in the Talmud Bava Kamma 7b it appears that one whose property value declined because of his own negligence cannot take the poor tithe. And it seems that there too he is not considered under compulsion, since it is in his power to sell the property now, though at a smaller profit; this is like one who does not save himself, not like one who brings himself into compulsion.

And Maimonides did not distinguish between one whose property value declined because of his negligence and one where it happened under compulsion, implying that in any case there is no obligation to give him. It must therefore be said that there is no obligation to give him, but one who does give him falls under the category of an existential commandment, in line with the above distinction.

And one may discuss one who lost his money through a transgression (see Nikdash BiTzedakah sec. 221). In Sifra on Leviticus ch. 25 v. 35 they expounded: “And if your brother becomes poor” — one might think even if you are causing him to be lost to evil ways, therefore Scripture says: “with you.” In the commentary attributed to R. Shimshon there he brings two explanations: 1. That one is exempt from giving to a transgressor because he is not in the category of “one who acts as your fellow.” However, according to this it is very difficult why we need this exposition, for all commandments between a person and his fellow do not apply to such a person. 2. That because he lost his money through transgression, we are not obligated to give him (apparently even if he is still called “one who acts as your fellow”).

And one may discuss what the relation is between this and one who is negligent with his money. Here he is not negligent with his money, but rather a transgressor against Torah law, and therefore one might have said that there is still an obligation toward him; and if the Sifra exempts one from giving to him, then all the more so with one who is negligent with his money. Something like this appears in the explanation of the Rebbe of Gur in Kli Hemdah at the end of Korach regarding Zimri, who may kill Pinchas even though he could save himself by ceasing to transgress; see there.

However, in the straightforward sense it seems that specifically one who transgresses Torah law we are not obligated to give to, but one who is negligent with his money we are obligated to give to, as explained above (only when he brings himself into compulsion, of course). And perhaps the prohibition against giving to him is because of “do not place a stumbling block,” as you become a partner in his transgression (see Korban Aharon further on). In particular, the transgressor described in the Sifra spent his money on gambling and prostitution, and if so why should he not be considered negligent also with respect to money and not only with respect to Torah law? Anyone who wastes his money in such a way that he will not have enough left for his own needs is negligent. And to call the needs of transgression “what he lacks,” such that we would be obligated to give him, is highly forced (even according to the above view of the Rebbe of Gur). Especially according to the reasoning of Rabbi Zolti (in lesson no. 5) that there is no obligation to give charity for the fulfillment of commandments, all the more so one does not give for the sake of transgressions (though one may distinguish, for here we are speaking where he already committed the transgressions, and now one gives him in order that he may eat).

And see Korban Aharon on the Sifra there, who explained differently: if you are concerned that he will go out to evil ways as a result of the charity you give him, you are not obligated to give.

And regarding one who does not want to receive payment for commandments from charity, and therefore is poor, whether one gives to him or not, see Rema sec. 251 law 13 (and Rema Yoreh De’ah sec. 246 law 21), where he writes that regarding a rabbi who is not supported from charity, any individual may send him charity in a respectful way.

And it seems that the same applies to a kollel scholar, even though one may distinguish between him and a city rabbi whose task cannot be done by another. Perhaps in our generation every kollel scholar is considered as one whose role cannot be done by others.

In any case, it seems obvious that one who gives to him fulfills the commandment of charity, even if there is no obligation to give to him.

And regarding a poor person who cannot find work befitting his dignity, it seems that one is obligated to give him charity, for this is no worse than charity to prevent disgrace (and see Tosafot Shevuot 30b from lesson no. 5, that one is not even obligated to testify because of human dignity, even in a place where his fellow will lose money).

H.

And now we shall discuss charity for a lazy person who does not want to work.

We saw that a poor person who is to blame for his poverty, in the sense of bringing himself into compulsion, must be given to, so long as this is not a fixed pattern (up to three times). By contrast, one who actively harms himself need not be helped. One who does not go to work is seemingly an intermediate case, and that is what we shall discuss now.

It is stated in Leviticus Rabbah 34:4 (and see there also paragraph 7):

Another interpretation of “And if your brother becomes poor” — this is what is written: “The poor man and the deceitful man meet together” (Proverbs 29), “The rich and poor meet together, the Lord made them all” (ibid. 22)… The rich one is rich in property, and the poor one is poor in property. The poor man stood with the rich man and said to him: Give me a commandment, and he did not give him. “The Lord made them all” — He who made this one poor can make him rich, and He who made that one rich can make him poor.

The rich man said to that poor man: Why do you not go labor and work? Look at his shins, look at his legs, look at his belly, look at his flesh and fat. The Holy One, blessed be He, said to him: Is it not enough that you did not give him anything of your own, but you also cast an evil eye on what I gave him? Therefore: “And he fathers a son and has nothing in his hand”; from everything he had, he will leave nothing to his son and will take a blemish upon himself.

We see that one must give to a poor person who does not work, and this is a source for the words of Sefer Mitzvot Katan that we saw in lesson no. 1, that it is forbidden to tell a poor person that one will not give to him and that he should go work. And see Meshiv Davar by Netziv, part 2 sec. 60, who writes regarding a laborer or artisan that even though they make an honorable living, they are judged as poor, since perhaps they may not want to work, and there is no commandment upon them to go work (see Nikdash BiTzedakah sec. 166). If so, the same applies to any poor person who does not want to go work.

However, regarding one who currently does nothing for his livelihood, we saw that there is no obligation to give him, and this is different from one who brings himself into compulsion, so this midrash is difficult. And with difficulty one could explain that this poor man is in the category of one who brings himself into compulsion, since his wages will be given to him only later, and at every moment he is under compulsion and has nothing to eat. However, here, according to all opinions, the law would be as Rashba above, that there is no point in giving him charity today for his livelihood at a later time when he will be able to receive his salary.

Therefore it appears that this is not speaking about one who does not work, but about one where that person wants to evade giving to him on the excuse that he does not go work. In such a case there is a prohibition of “do not harden your heart,” as Sefer Mitzvot Katan wrote. This fits well with what the author of Kli Yakar wrote on Exodus 23:5, and the Derishah on Even HaEzer 71 (see Beit Shmuel there subsection 3), that there is no obligation to give to an idle poor person. And so too Hatam Sofer, Yoreh De’ah responsum 229, writes that a father may not cast himself upon his sons so long as he can support himself.

And in light of what we saw above regarding one who declares his property ownerless, there is room to say that one who does not go to work is like one who brings himself into compulsion, for going to work is not like using his own money — that is, the situation itself is not one of compulsion, but this is an action whose purpose is to obtain other money, that is, to emerge from the compulsion (like acquiring money that he declared ownerless). According to this, one could establish the words of Netziv and those with him, that even regarding a poor person who does not want to work there is an obligation to give him. However, intuitively this is difficult to say.

And perhaps one could say that he is like one who sold himself into captivity to gentiles, where after three times we are not obligated to redeem him. If so, one who does not go to work may also be a case where we are obligated to support him, but if this is his fixed practice, then we are no longer obligated to support him. According to this, it is possible that Netziv does not disagree with the Derishah and the Kli Yakar and Hatam Sofer above, and so it seems in practice as Jewish law.

And regarding “what he lacks,” about which we asked above what is different from a poor person who is to blame for his poverty, one could say that in the “poverty” of a horse to ride on, society as a whole is to blame, and therefore the responsibility is imposed on others and not only on him himself.

V.

And see Maimonides ch. 10 law 18 and Shulchan Arukh sec. 255 law 1, that a person should always engage in a trade, even a degrading one, and not need other people. To need other people is more severe than commandments, for one is not obligated when it is not in keeping with his dignity. And the reasoning is that receiving charity is an even greater disgrace. Further, others need not actively finance his dignity, and at most they can lose their money because he will not come testify and save them.

In general, one should note that the entire discussion here concerns the obligation of the giver, but it is obvious that the poor person himself must try to support himself and not ask, as Maimonides and the Shulchan Arukh above wrote.

Please note! This week we will deal with two sections in the Tur-Shulchan Arukh. The accompanying pages deal with both of them.

 

Not to receive charity from gentiles:

Main sources

Tur-Shulchan Arukh sec. 254. Maimonides ch. 8 law 9 (and see also Testimony ch. 11 law 5). Their sources are from Talmudic passages.

Main points for expansion

The basis of the prohibition against taking charity from a gentile in public

The source is in Sanhedrin 26b, “those who eat ‘something else’ are disqualified from testimony”; see there in Rashi and Tosafot s.v. “those who eat.” The very term “something else,” as an expression for taking charity from a gentile, calls for interpretation. Regarding the reason for the prohibition, some explained it as disgrace to themselves (see Maimonides Testimony ch. 11 law 5, where it does not sound like a disqualification of a transgressor but of a degraded person, and therefore he has no inhibition about lying; see the Frankel index there), and some explained it as desecration of God’s name (Rashi there, and Taz and Shakh here). In the simple sense, the desecration of God’s name is that the gentile supports the Jew, as though the hand of the Holy One, blessed be He, were too short to save His servants. Yet the truth is that the Holy One, blessed be He, supports us even if gentiles give us charity, like that nobleman who sent the Jew to the forest to see whether the Holy One, blessed be He, would support him, and the nobleman himself sent food to be placed for him in the forest. When the Jew returned full of trust in God, the nobleman laughed and said that it was he who had supported him and not the Holy One, blessed be He. But the truth is with the Jew, that even sustenance from the nobleman is from God. In these terms, the prohibition here is to leave room for the nobleman to think so.

And see Arukh HaShulchan here, who writes that this is not literally a desecration of God’s name, but that it is not honorable.

And see at length the topic in Bava Batra 10b regarding “Charity exalts a nation, but the kindness of nations is sin.” There it appears that the very giving of charity by gentiles is their sin, but that is not the basis of the prohibition. The basis of the prohibition is apparently the opposite: “When the harvest is dry, it is broken,” meaning that we want the merits of the gentiles to come to an end, and then the exile will be shortened (see Rashi there). It thus appears that their giving charity is a merit for them. And see there in the topic, where they disagreed on this.

However, the definition of the prohibition is written as not taking charity from a gentile in public, implying that in private it is permitted. But according to the law of “when the harvest is dry,” it should seemingly be forbidden even in private. See Perishah and Shakh.

And the later authorities (Acharonim) wrote that even in private it is forbidden if he can live from Jews. See Derishah and Rishon LeTzion here.

And regarding the relation to what Maimonides wrote in the Laws of Kings ch. 10 law 10, see the Frankel index here.

If it is impossible in private

See Derekh Emunah subsection 58, who brought that the basis of the permission is danger to life. And in Tziyun HaHalakhah there letter 188, he notes that this does not seem to be the meaning of the halakhic decisors, namely that it must be literal danger to life. And see there what Arukh HaShulchan wrote regarding gentiles who nowadays are not idol worshipers, and this requires examination in light of some of the reasons for the prohibition above.

A gentile nobleman who sends charity to Jews

See in the Talmud Bava Batra 10b, and 8a regarding Ifra Hormiz, and in Tosafot s.v. “yativ” there 8a, and in the Vilna Gaon here subsection 1.

And the author of the Shulchan Arukh and the Rema disagreed whether to give it secretly to poor gentiles (so that the nobleman should not hear), or to do with it what he instructed. And see Taz here subsection 3, what he asked against the Rema from the Talmud.

Deception of the mind

See Taz here subsections 2–3 and Shakh subsection 3. And in lesson 9 below.

We distribute to poor gentiles because of peaceful relations with the government

See Kovetz Shiurim Bava Batra sec. 54, who asked why one takes only because of peaceful relations with the government; after all, if one distributes to poor gentiles, it is permitted from the outset to take it.

And in my humble opinion, it seems the reverse: why is it necessary to distribute to poor gentiles if we already took from him in public? After all, the desecration of God’s name lies in the public taking.

It must therefore be said that according to some of the reasons there is indeed no practical difference. But with respect to “when the harvest is dry,” it is certainly better to distribute to poor gentiles. However, regarding the desecration of God’s name in the taking, this does not help. Therefore only because of peaceful relations with the government did they permit taking from the king, and thus the question of Kovetz Shiurim is well answered.

Taking for the synagogue

The source is from the verse “man, man” (see Taz here subsection 4). See also in sec. 259 laws 3–4.

From Rabbi Yosef in Bava Batra 8a it appears that for any matter of commandment one may take. Perhaps this is only after the king has already given it because of peaceful relations with the government.

And in the straightforward sense the reasoning is that gentiles too have a right to serve God (and perhaps this is the intention of the Hagahot Ashri in Bava Batra there, who wrote that we do not accept from them things of atonement, apparently so as not to increase their merits, but vows and freewill offerings we do accept).

In practice, vows and freewill offerings may indeed increase the merits of the gentiles (even though they do not atone), but clearly there is no desecration of God’s name here; quite the opposite. We see that even gentiles wish to join us in the service of God.

From several places here we see that one must combine all the reasons for the prohibition together in order to understand the different laws. There is no dispute here; rather, all the reasons are correct. In each situation one must take all the reasons into account. Thus we saw in the question of Kovetz Shiurim, and in understanding the Hagahot Ashri, and more.

A fundamental note: from the above Hagahot Ashri (brought here by the Taz and Shakh subsection 4, and the other commentators) emerges an important and novel principle in understanding the essence of charity. Usually one understands that charity atones because it is an important commandment and therefore increases our merits. According to this, charity is like vows and freewill offerings, which atone only because performing them is a commandment that increases our merits. Here we see that charity is like sacrifices that truly atone, meaning that what atones in it is not the commandment it contains, but the very act of giving charity to a poor person is itself something that atones, like bringing sacrifices to the Temple. This is what is meant by “charity saves from death,” literally (see the opening lesson).

Taking from an apostate

An apostate is like a gentile in several laws. However, here, where one of the reasons for the prohibition is to increase the merits of gentiles in order not to lengthen the exile, there is no room to forbid regarding an apostate. Perhaps this is the plain sense in Mabit brought by the Shakh here subsection 5. According to the Rema’s approach, it must be that the other reasons still apply, such as desecration of God’s name and disgrace (as I noted above that all the reasons must be combined).

Receiving charity from the American government

One may discuss grants that the State of Israel receives from the U.S. government: does the above prohibition not apply here? And even if we say that the State of Israel is not considered a Jewish state but a state whose majority of inhabitants are Jewish (with practical differences regarding the sale of its lands to a gentile in the Sabbatical year; see “MiMidbar Matanah” from last year), in the end in the world’s eyes (and also for many of us) it is indeed perceived that way, and some would say that precisely because it is perceived that way, that is what makes it so. If so, in practice there is desecration of God’s name here.

If we review the various reasons in this context: from the side of desecration of God’s name there is a problem. From the side of increasing the merits of the gentiles and lengthening the exile, perhaps there is none here, for this charity actually shortens the exile since it helps us establish our independent state. One may also discuss that we are not currently subjugated to the Americans, and we are not in exile among them (but only in cultural exile by our own will). Regarding their status as idol worshipers, which according to Arukh HaShulchan eases the prohibition (even though his words are difficult, as explained above), this depends on the general attitude toward Christianity, especially Protestantism. As for disgrace, as stated, this is not really an independent prohibition and is in practice included in desecration of God’s name, as above.

And one may discuss this in light of what Derekh Emunah subsection 57 brought from Maharsham and Rema in Bava Batra, that a gift and a loan are permitted to receive. If so, the loan portion is not forbidden to take (though if it is on favorable terms, it seems one should forbid it). And regarding the grant portion one may ask whether it is called charity or a gift. The basis of the distinction between them is that a gift indicates the donor’s esteem and affection for the recipient (a gift to an important person is considered receipt for purposes of betrothal), whereas charity is for one who is needy. It is possible that this is exactly the reason why vows and freewill offerings and gifts to the synagogue are accepted from a gentile, since these are gifts and not charity.

According to this, one may ask whether the grant from the U.S. is in the category of a gift or of charity. It seems that it contains aspects of both, for the U.S. does not give to every needy party, and certainly not on such a scale. Some attribute it to American interests, and if so it is entirely permitted, except that we must present it that way in order to prevent desecration of God’s name. It is also possible that it stems from compassion for us because of the long exile and the Holocaust we endured, and if so it is literally charity. It seems that all of these elements are present in it.

However, the fact that our representatives request grants (and guarantees) from the U.S. government seems plainly forbidden, for there this is literally an outstretched hand for charity, and there is no greater desecration of God’s name than that. Especially since we are not at all in need in this respect, and it is clear that our economy would be healthier without the grants; in fact, it is known that the average standard of living in Israel is generally higher than that in the U.S.

Let us take note! One must remember that desecration of God’s name, especially public desecration of God’s name, is an extremely severe transgression, and practical conclusions must be drawn.

This is also the place to note the contemporary relevance on the private level. It happens not infrequently that institutions or individuals, for various needs, receive donations from gentiles. However, if it is for commandment-related needs, there is room to be lenient, as explained above.

 

The obligation to refrain from receiving charity:

Main sources

Tur-Shulchan Arukh sec. 255. Maimonides ch. 10 law 18. Their sources are from Talmudic passages.

Main points for expansion

The law of keeping away from charity

One may discuss whether this is an actual law (rabbinic), or a pious trait (though this needs examination in light of what I wrote above sec. 251 beginning of part 2 of my notes regarding multiple acts of giving, that pious traits are not taught in Maimonides’ legal code). Perhaps this rule stems from the concern that he may be deceiving the giver, since his need is not real and what he has is enough for him. Or perhaps this itself is charity, in that he leaves money for the poor by not taking it. One may discuss the fulfillment of a positive commandment through indirect causation; I seem to recall having seen something on this in the responsa of Rabbi Eliezer Gordon of Telz, but this is not the place. One may distinguish here between money that is already the money of the poor, in which case he is seemingly a partner, and thus one may discuss that this is almost not indirect at all but actually a gift from his own, and a situation where he is not taking from a private individual.

Beyond all this, there is here a demand of the trait of trust in God, and see the promise given to such a person at the end of law 2 below. Indeed, the source of this demand is the verse “Blessed is the man who trusts in the Lord,” as brought at the end of law 2 below.

And when he is a Torah scholar, perhaps there is here something like the desecration of God’s name discussed in the previous section, and this requires examination.

And regarding the deceiver, see here in law 2 and in Maimonides his punishment. See also my notes to sec. 253 on the deceiver, and in the Shakh there subsection 4.

One who has daughters to marry off

See the Shakh here subsection 1.

And one may discuss whether this is because marrying off daughters is an existential need like life itself, or because in concern for his family’s needs he should not rely on trust in God. It is possible that a person may rely on trust in God only regarding himself and not regarding his household (see the story about Rabbi Chaim in my notes to sec. 253, about a poor person who does not want to take). It seems that the intention of the Shakh is the first explanation, but it is clear that the second explanation is also a correct principle.

And this has a very great practical difference, for if so, it was not said only about marrying off his daughters but about every basic need of his family that he cannot provide for them.

In general one must know not to be righteous at the expense of others, and to make demands of ourselves and not of others (even if he is close to us, for then we sometimes tend to belittle his needs).

Two types of one who does not take even though he deserves it

See here in law 2. And see at the end of sec. 253 in my notes on a poor person who does not want to take, and on a possible distinction between a Torah scholar and an ordinary Jew.

What kinds of needs are proper for requesting charity

See above in lesson 5 regarding charity for commandments. It is clear that it is not proper to beautify a commandment at the expense of charity money. That is, one who lives on charity should not beautify commandments and buy guarded matzot with the finest embellishment. It is preferable that he not take charity at all (it is certainly not preferable to take the charity and spend it on embellishment).

It is clear that if this is said regarding commandments, all the more so regarding ordinary needs. One who lives on charity should reduce his needs as much as possible. Regarding commandments there may be some who feel that one may beautify them even at the expense of charity, but that is not so.

Regarding beautifying a commandment, see Bi’ur Halakhah sec. 671 s.v. “and even,” and in the book She’arim Metzuyanim BeHalakhah on sec. 108 subsection 10, who discusses guarded matzah; and see the above lesson.

It seems obvious that by the letter of the law the poor person may beautify commandments at the expense of his charity, and that the giver fulfills his obligation of charity thereby. The question is whether one is obligated to give him, and whether he should refrain from taking. And if we are dealing with a poor person who was accustomed to performing commandments with embellishment, it seems that this falls under “what he lacks” (see the above lesson).

Torah study at the public’s expense

See notes on this subject at the end of lesson number 5.

A troubling question is the status of kollel scholars, and whether their stipend is in the category of charity. The practical difference is whether it is proper to refrain from taking it, and what it is proper to do with this money (beautification of a commandment, luxury needs, and the like). The space here is too limited, so I will mention briefly several points in this context.

First, one must examine here the well-known words of Maimonides (see ch. 3 of the laws of Torah study, halakhah 10) regarding the prohibition against studying Torah and supporting oneself from charity (making the Torah “a spade to dig with”). His wording there is that one supports himself from charity, and from the overall context of his words it implies that taking money in order to study Torah is considered supporting oneself from charity. However, at the end of his words he writes that this falls under the category of deriving benefit from words of Torah, and not taking charity unnecessarily, and this requires further analysis. See the Kesef Mishneh there and the other commentaries, who wrote that even if these words are correct, this is not how one should conduct himself nowadays, and these matters are longstanding. However, all this is said with regard to deriving benefit from words of Torah; as for taking charity, if he is indeed poor it is permitted for him to take it. The question is whether it is proper for him to refrain from doing so. It would seem that the reasons of the Kesef Mishneh there are relevant to this question as well. One who succeeds in growing in Torah without this—there is room to say that he should do so—but many tried and did not succeed. There is certainly no permission to neglect Torah study merely in order not to derive benefit from words of Torah. So too all the great authorities of our time agreed, and Yiftach in his generation is like Samuel in his generation (and see my notes above, that certainly it is no better to take the charity and not spend it on beautifying a commandment. So too it is clear that the alternative—not to take charity and not to grow in Torah—is not the recommended one, even according to Maimonides).

If so, it remains for us to examine what it is proper for a kollel student to do with the stipend he receives, and what its status is. The stipend itself is divided into two principal parts: the stipend from society/the community/the state for every kollel student, and donations from individuals to this or that kollel. The first part may not be included in charity at all, for the person studies Torah on the understanding that he will support himself from this stipend, and if it did not exist he would not remain in study. Therefore this is a transaction with society, which wants to have Torah scholars in its midst, similar to researchers in various non-applied academic fields; Torah study is no less than engagement in those. Nor should we be troubled by the fact that this stipend was granted due to political pressure and not with the agreement of the entire public, since the whole democratic system functions this way. No stipend in any field is granted by the will of the entire public. The decision of the authorized institutions is itself the will of the public.

However, with respect to the second part, which is the stipend from private donors, this is truly included in charity. And indeed we saw (in my notes to sec. 251, part 2) that a donation for the welfare of Torah scholars is among the highest forms of charity (air conditioners for the study hall), but this does not tell us what the learner himself should do with the money. If he himself lives frugally, certainly it is proper for him to conduct himself that way (see my note in sec. 253 regarding a poor person who does not want to take, concerning the contradictory halakhic guidance to the giver and the recipient).

If so, with respect to this part, it may be that there is value in taking only what is needed, and not using it for unnecessary needs. And as I noted above, one should not infer from here that one should not beautify commandments and spend the money for other purposes. Only if they want to return part of the money that is not needed is there room to consider this.

And it seems that one who consumes in the way people (who fear Heaven) ordinarily consume, both for his ongoing needs and for commandment-related needs, acts as is proper.

In any event, it is important to mention that there is here the rule of “enough for his lack,” and therefore from the standpoint of the law this is proper and decent charity, and there is no reason to question it.

And regarding the law of the Issachar-Zebulun arrangement—whether it is proper or not, and whether it is possible or not—see the book Issachar and Zebulun (I think that is its name).

Lesson number 9: On the law of deception / stealing another’s mind (see the Talmudic Encyclopedia, entry “deception / stealing another’s mind”).

A.

In the Shulchan Arukh, sec. 254:2, it is written as follows:

If a gentile minister sent money to a Jew for charity, it is not returned because of maintaining peace with the government; rather, it is taken from him and given secretly to poor gentiles so that the minister should not hear.

Gloss: And some say that one should do with it whatever the ruler instructed him to do (so it appears from Rashi’s commentary and Tosafot from the incident of the mother of King Shapur).

And the Shakh there explained that even those “some say” agree that ordinarily it should be given to poor gentiles. However, if the ruler explicitly instructed otherwise, they are obligated to do so because it is forbidden to deceive people / steal their mind, even the mind of a gentile. He explained there that the dispute is only if he sent it and instructed explicitly, for then, according to the first view, distributing it to poor gentiles is not considered deception, since everyone knows that Jews support poor gentiles together with poor Jews; while according to the “some say,” one must do exactly as instructed.

The Taz there, subsection 2, wrote that where the giver expects that it will also be distributed to Jews and he distributes it only to gentiles, there is no prohibition of deception, because he violates the giver’s expectation passively, since he is permitted to give to gentiles, except that the donor expects him also to give to Jews and he does not do so. However, if the donor intended to give only to Jews and he gives it to gentiles, in that case there is a prohibition of deception, because the donor forbids him to give to gentiles and he violates his words by active conduct. See there also subsection 3, and see below.

B.

The basis of the matter is in two cases in the first chapter of tractate Bava Batra.

The first is in the Talmudic topic in Bava Batra 8b, where Ifra Hormiz, the mother of King Shapur, sent money to Rabbi Joseph for a “great commandment.” Rabbi Joseph deliberated as to what a “great commandment” is, and concluded that it is redeeming captives. The second is in the topic in Bava Batra 10b, where Ifra Hormiz sent charity to Rabbi Ami and he did not accept it, while Rava did accept it because of peace with the government. And in conclusion, Rava and Rabbi Ami both agree that one should accept it because of peace with the government, except that the money should be distributed to poor gentiles.

Rashi on the words “and he did not” (11a) asked why they did not also distribute the gift described on page 8 to poor gentiles. He answered that there the money was designated for a great commandment, and therefore to give it to poor gentiles would be deception, since the giver intended it for redeeming captives. But in the topic on 10b, the money was designated simply for charity, and in such a case there is no prohibition of deception in giving it to poor gentiles, since everyone knows that Jews support poor gentiles together with poor Jews, and they give on that understanding. The Ramah here explained that when one gives to poor gentiles, Jews benefit thereby in any event, since charity money is thereby freed up for them, and therefore there is no deception here, for it is as though it was given to poor Jews (although according to this it is somewhat difficult what the gain is in giving it to poor gentiles, since the Jews thereby profit from it).

And in Tosafot on the words “he was sitting” (there, 8a), they asked how Rabbi Joseph accepted the charity, since it is forbidden to accept charity from a gentile because of the verse “When the harvest withers”? They answered that he accepted it because of peace with the government and redeemed gentile captives with it (and there is no deception here because this too is a great commandment!? See below). In a second answer Tosafot wrote like the above Rashi, that here the money is designated for a great commandment, and therefore there is no choice, because changing its purpose is deception.[17]

One may discuss what the two answers of Tosafot disagree about. Simply understood, they disagree whether it is permitted to deceive the ruler / steal the ruler’s mind. According to the first answer it seems that it is permitted to deceive him (for it seems obvious that redeeming gentile captives is not what was meant by a “great commandment”!), and the prohibition of accepting charity from a gentile is not overridden because of the prohibition of deception. According to the second answer, it is forbidden to deceive the ruler, and this prohibition overrides the prohibition of accepting money from a gentile.

If so, these two answers are the two views in the above Shulchan Arukh and Rema. See also the Vilna Gaon, subsection 2, who brought that the Rosh wrote like the second answer, though I did not find this in the Rosh (he speaks only about the topic on 10b, and there he brings the Gemara straightforwardly).

And the Ramah there wrote that if one changes the purpose from redeeming captives, this is not deception but actual monetary theft.

In truth, this requires analysis: why do the medieval authorities (Rishonim) speak here about deception, when in the end there is actual theft here, since the money was given to him only on condition that he redeem captives with it? It is forced to say that they hold that theft from a gentile is permitted (or at least rabbinically), and therefore only the prohibition of deception remains, which is Torah-level even vis-à-vis a gentile. Especially since it is not clear that the person robbed is the gentile, for one could say that the ones robbed are “the tribe of captives,” since this money is already theirs from the moment it was given to the collector.

See the above Taz, subsection 3, who challenged the Rema from here, for from here it emerges that according to everyone, if the ruler sends money to be given as charity, it is permitted to give it to poor gentiles and there is no issue of deception; only if he sends it for a great commandment (redeeming captives) and one changes from his words—only then is there deception. This is difficult regarding the Rema, who seems to follow no opinion. I did not understand whether the Taz intends to answer that the Rema is speaking of a situation where the ruler explicitly instructed not to give to poor gentiles, in which case if one gives to them this is deception, and so the Levush explicitly wrote (thus he cited the Rema).

It also still requires analysis why the Shulchan Arukh wrote that he should give the money secretly to poor gentiles, for if indeed the ruler himself takes into account that the money may be given to gentiles, and gave it on that understanding, why should he not hear that this is what is being done with his money? With difficulty one may say that nevertheless he is not pleased with this, even though after the fact he would be willing to accept it (there are things people agree to so long as they are not placed openly on the table, but one merely turns a blind eye to them). But simply, it seems that since the matter is known, the ruler should have known that this is how Jews act, and therefore even if he does not agree to it, he caused his own problem by not checking to whom they give the money. So long as they do not explicitly violate his words, even if there is an assessment that he does not agree, he deceived himself, and therefore it is permitted. Especially since he did not explicitly state that he does not agree, although he should have been aware of the rule that Jews also support poor gentiles. If so, it is his own fault. This is a basis similar to what the Taz wrote, that we do not violate his words by active conduct, since he did not explicitly instruct not to give to a gentile. Therefore, even though he does not agree, there is no prohibition here. If so, this ruling of the Shulchan Arukh (that it is permitted to give secretly against the inferred intention of the ruler) is proof for the above Taz.

The Ramah also still requires analysis, for on the one hand he determines that when one changes from money given for redeeming captives, this is actual monetary theft and not deception, while on the other hand he determines that to give to poor gentiles is not deception since the Jews benefit from it indirectly and it is as though it was given to them. This implies that if the Jews did not benefit from it, there would be deception here. This requires analysis: why would there not here too be full-fledged theft?

It must therefore be said that when the ruler did not state explicitly what the purpose of the money is, there is no deception here, since they are not acting explicitly against his intention, but only passively. In contrast, when he said that the money was designated for redeeming captives, the change is against his intention by active conduct. If so, the Ramah too is in accordance with the view of the above Taz.

It thus emerges that according to the Ramah, the definition of deception is when money is given without explicit notice of its purpose, but we infer by estimation what the giver wants and act against it. When there is explicit notice, this is actual theft. But according to Rashi, Tosafot, and the above decisors, it appears that even when there is explicit notice about the purpose of the money, this is no more than deception. That is, deception applies both where there is explicit notice and where there is no explicit notice (and according to the Taz, only when one violates it by active conduct and not passively). But still, this requires analysis: why according to those who disagree with the Ramah is this not actual theft?

C.

The main law of deception is discussed in the topic in tractate Hullin 94a. There the subject discussed is a Jew who sent a gentile a cut thigh of meat as though he had removed the sciatic nerve from it, when in fact it was still inside. One of the explanations is because of deception:

For Samuel said: It is forbidden to deceive people / steal their mind, even the mind of a gentile.

And Rashi there explained (s.v. “because he deceives”):

He thinks that this Jew loves him very much, since he purchased it and took the trouble to remove its sciatic nerve until it appeared fit to him, and afterward gave it to him—while in fact he did not remove it. It turns out that he extends gratitude to him for nothing.

This expression in Rashi—that he “extends gratitude to him for nothing”—constitutes the accepted definition of the prohibition of deception: it is forbidden to cause a person to feel gratitude toward me unjustly.

At first glance this is difficult: why indeed should this be forbidden? If his fellow is harmed by it, then this should be actual theft; and if his fellow is not harmed by it, why is it not all right that he should have gratitude toward me, even if it is not justified?

In the course of the topic, several cases of deception are brought, and they are summarized (most of them) in Maimonides in the laws of character traits and sales, and in the Tur/Shulchan Arukh in Choshen Mishpat and Yoreh Deah. This law appears in Maimonides in two places. In Laws of Character Traits, ch. 2, halakhah 6, he brings the fundamental prohibition:

A person may not conduct himself with smooth talk and enticement. He should not be one thing with his mouth and another in his heart, but rather his inside should be like his outside, and what is in his heart should be what is in his mouth. It is forbidden to deceive people / steal their mind, even the mind of a non-Jew. How so? A person should not sell non-kosher carcass meat to a gentile in place of slaughtered meat, nor a shoe made from an animal that died on its own in place of one from a slaughtered animal. He should not press his fellow to eat with him when he knows he will not eat. He should not multiply gifts before him when he knows he will not accept them. He should not open barrels for him that he needs to open in order to sell them, in order to entice him into thinking that he opened them because of his honor. And so too in all similar cases.

And even a single word of enticement and deception is forbidden; rather there should be speech of truth, a right spirit, and a pure heart free of all toil and corruption.

Maimonides implies that this is a matter of character and not a matter of prohibition against harming one’s fellow. That is, it is a clause of lack of honesty. The expression “deception / stealing another’s mind” should be understood as taking from one’s fellow his gratitude. The gratitude of the other person is something that is an asset for me, and I take it unlawfully. Although it is not clear that there is necessarily harm to him here, certainly this is a bad trait on my part.

However, it seems that there are cases here in which there is certainly harm to him. If one sells him non-kosher carcass meat instead of slaughtered meat, perhaps there is no deficiency for the gentile, for to a gentile this makes no difference, except that he feels gratitude toward the Jew because he thinks he loves him (so the Bach in Choshen Mishpat sec. 228 explained). One may further say that although there is no prohibition for the gentile and therefore no real harm, since he bought from a Jew one must suspect that he himself wants slaughtered meat for his own reasons, and therefore there is deception without monetary loss. However, the Perishah (there, subsection 6) wrote that carcass meat is less healthy, in which case this is difficult, for then it is actual theft, or at least a mistaken transaction.

And regarding one who sells him a shoe from an animal that died on its own in place of one from a slaughtered animal, the commentators dispute what the problem is. According to Rashi, it is because of the poison of snakes absorbed in it, and nowadays this is not relevant. But when it is relevant, there is deception here. And some explained that it is less durable, in which case again there is actual theft, or at least a mistaken transaction. The Bach (there) explained that he sold it to him at the value of such a shoe, and therefore there is no theft or mistaken transaction here but only deception.

However, in all these cases it seems that this is simply fraud and not drawing gratitude unjustly. Why should the gentile feel gratitude toward him for selling him what he asked for? Perhaps according to the Bach one may say that since he sold it to him at the price of one from an animal that died on its own and told him it was from a slaughtered animal, the gentile feels gratitude for the discount he gave him. If so, there is indeed gratuitous gratitude here.

And Maimonides in Laws of Sale, ch. 18, halakhah 1, wrote:

It is forbidden to defraud people in buying and selling, or to deceive them / steal their mind. In this matter, gentiles and Jews are alike. If one knows there is a defect in what he is selling, he must inform the buyer. And even to deceive people / steal their mind in words is forbidden.

Here it appears as though in deception there is a problem of damage to the buyer, and this is not merely a character flaw of the seller. The end of Maimonides’ words is also unclear: what is deception in words, as distinct from deception in actions, or from fraud?

The entire continuation of chapter 18 is devoted to various examples of fraud in sale (such as painting the product with an attractive color, mixing it with better merchandise, etc.), except that it is not clear which of these examples belong to the prohibition of fraud and which to the prohibition of deception. Nor is it clear what the difference is between the two prohibitions, for we are speaking about a transaction in which one does not violate theft or mistaken transaction. It may be that Maimonides means beautifying the product being sold in a way that will enable one to sell it at a higher price, though by less than one-sixth of its value, so that this is not a mistaken transaction. That is the prohibition of fraud in sale. Deception is the moral aspect of the matter, and therefore it is forbidden even in words and not only in actions.

Or perhaps it is speaking of beautifying the object in a way that it will be sold more easily, and the buyer feels that he has found a bargain and therefore buys it. If so, there is deception with respect to what the buyer intended, even if the price is exactly the correct price. On the other hand, there is also the creation of gratuitous gratitude toward him (for having sold him a “superior” object cheaply, as in our explanation of the Bach above).

Later in the Gemara there it is explained that if one does this for the sake of the honor of the person whose mind he is deceiving, it is permitted. For example, when one invites his fellow to anoint himself with oil from a vessel that is empty, since he knows his fellow will not actually anoint himself. In principle there is deception here, but if he does so in order to honor him—for example, when he is a guest and one wishes to make known to others that he is dear to him—it is permitted.

And the Sema, subsection 10, wrote that if the flask is full of oil, then although he knows the guest will not anoint himself, it is permitted to tell him to do so out of honor (and apparently the reasoning is that in the end he is willing for the guest to anoint himself, for if he decides to do so he will take oil from the flask, unlike the case where the flask is empty. See below).

And the Kesef Mishneh on Laws of Character Traits there noted Maimonides’ omission of this law, for he did not mention that for the sake of the other’s honor it is permitted to deceive him, and he left it unresolved.

And the Lehem Mishneh there proved that Maimonides interprets the law of deception only in the case where one told him in words that it was from a slaughtered animal, while in reality it was carcass meat; but if he said nothing, there is no deception in this. This is also proven from the end of Maimonides’ wording in Laws of Character Traits, where he wrote that even “one word” of deception is forbidden—implying that deception is specifically by speech.

And so Rashi wrote in Hullin there (and likewise Tosafot HaRosh and the conclusion of the Rashba there on 94b), that if he said it explicitly there is a prohibition of deception, but if he said nothing at all, the other person deceived himself.

But the Rashba there concludes that there is a prohibition even when he did not tell him explicitly. The medieval authorities (Rishonim) noted that there is a contradiction in Rashi on this point (see there in Rashba and Ritva, and Rosh Yosef there): on 94a, s.v. “one does not sell,” he wrote that the prohibition applies even when he does not say it, whereas on 94b he wrote as above, that only when he says it is there a prohibition, and this is not the place to elaborate.

It seems possible to say that an element of theft exists here only when he explicitly told the deceived person something untrue, for then he actively takes his gratitude. However, the moral problem may exist even if he does not say it in words, for in the end he performs an act of deceit rather than verbal deceit (like ordinary falsehood). Still, one may question whether action without words also does not involve a problem of theft, for in the end he takes money for a purpose different from what the giver thought. But one should remember that we are speaking here about stealing gratitude, not stealing money. In such a case, without speech there is no taking of gratitude at all (it is simply given without reason).

If so, it appears that these medieval authorities (Rishonim) disagree whether the problem is moral or interpersonal in nature (and from the fact that this applies even toward gentiles, it seems clear that this is not an ordinary interpersonal obligation that we do not have toward gentiles, but only toward “your fellow,” and one who is with you in observance. Still, one can distinguish, for there is an opinion that it is forbidden by Torah law to rob a gentile, even though this too is an interpersonal prohibition. Perhaps the distinction is between positive commandments and prohibitions toward one’s fellow). That is, according to Rashba this seems to be only a moral problem, whereas according to the other medieval authorities it appears that there is also a problem of deceit toward one’s fellow (stealing his gratitude), and that is only when he performs an actual act (like an act of robbery or theft).

It may be that the dispute depends on the source of the prohibition (see the Frankel index on Laws of Sale ch. 18, halakhah 1, and the Talmudic Encyclopedia at the beginning of the entry “deception / stealing another’s mind”). For the Ritva in Hullin there, and Yere’im HaShalem sec. 124, and Sefer Mitzvot Gadol wrote that it is Torah-level, included in the prohibition of “you shall not steal,” and they brought the Mekhilta on Mishpatim ch. 13 and the Tosefta Bava Kamma ch. 7: “There are seven thieves: the first of them all is one who steals people’s minds / deceives them.”

From here it appears that this is a prohibition akin to theft; that is, he deprives his fellow of something, as explained above (that he deprives him of gratitude toward him).

On the other hand, the Bach in Choshen Mishpat there, and Sefer Mitzvot Katan, wrote that it is a rabbinic prohibition. According to this, there is room to understand the prohibition on a different basis, and not necessarily from the basis of theft, and then it may be a moral prohibition.

Rabbeinu Yonah in Sha’arei Teshuvah, gate 3, sec. 184, in the context of speaking about the class of liars, wrote as follows:

The seventh category is one who misleads his fellow into thinking that he did him a favor or spoke well of him, when he did not. Our sages said: “It is forbidden to deceive people / steal their mind.” This sin is considered by the sages of Israel more severe than theft. This is because false speech bears great guilt. We have been obligated regarding the boundaries of truth, for it is among the foundations of the soul.

It is clear from Rabbeinu Yonah’s words that there is here a truly moral problem from the family of falsehood. However, from the comparison to theft one could understand that there is also a dimension of theft here, except that it is done through falsehood and therefore is more severe.

If so, it is no wonder that Rashba, a student of Rabbeinu Yonah, understood the prohibition of deception as a moral prohibition and prohibited it even when he did not speak. It may be that there are two dimensions here, except that this prohibition exists even when he did not speak, since there still remains a moral defect.

And in Maimonides it appears clearly that there are two dimensions here, as explained above. Especially in light of the Lehem Mishneh’s comment that according to Maimonides one violates it only if he spoke, from which it is proven that there is also a dimension of theft here; and perhaps when there is only a moral issue (when he does not speak) there is no formal prohibition. On the other hand, Maimonides does not explicitly mention that one must speak; rather it is inferred from the phrasing that even a single “word” is forbidden, and apparently that is because even without words it is reprehensible, though not prohibited. According to this, it appears clearly that there is no permission to do this for the sake of the honor of the deceived person, for while the moral aspect may be solved, the theft aspect cannot be permitted for the sake of the deceived person’s honor. Ordinary theft we would not permit, even if it is done for the benefit of the person from whom one steals.

D.

The discussion here opens for us a possibility of understanding the views of those who disagree with the Ramah that we cited at the beginning of our remarks. We saw there that according to the views of Rashi and Tosafot in Bava Batra, and the Taz and Shakh, it appears that even when there is an explicit statement by the ruler that he wants to give for redeeming captives, and we change it for poor gentiles, this is not theft but only deception. The Ramah there in Bava Batra wrote that it is actual theft, for one violates the giver’s will.

What seems correct in this is that if one actually tells the ruler that this is what they did—that they gave it for redeeming captives when they did not do so—this is actual theft. But if the ruler tells them that he wants them to redeem captives with it, and they do something else with the money, there is no theft here, since there was no condition on the giving itself, but only an expression of the ruler’s will. This is essentially the topic of “one who acts contrary to the intent of the owner is called a robber” in Bava Metzia 78b (regarding a poor person who received Purim funds and wants to buy shoes or something else with them rather than use the money for the Purim meal). Violating the will of the giver is deception, but not theft.

But according to the Ramah, this is actual theft, because he uses money that is not his.

And it is very plausible that the ruler’s statement that he wants it for redeeming captives is a substitute for the requirement that the deceiver say something false to the deceived person; therefore, according to all views there will be deception here, even if they did not tell the ruler that they needed it for redeeming captives.

However, here it is clear that the element of theft is stronger, for there is not really falsehood or fraud here, but use of money not for the purpose for which it was given. This seems more like a clause of theft and less like a moral problem of falsehood.

The Ramah, who determines that this is not deception but theft, may mean to say that there is no moral problem here but rather a problem of taking money unlawfully (though not within the ordinary parameters of theft), and therefore it is classified as theft and not as deception (see the Ramah there, who wrote that there is no prohibition of deception in a place of prohibition). That is, the Ramah follows Rashba, and Rashi and Tosafot each follow their own approach (that in the topic in Hullin they required specifically speech), and so too ruled the Taz and Shakh.

This is especially prominent in the words of the Taz, who makes the prohibition of deception depend on whether there was a violation of the ruler’s words by active conduct or by passive omission. This distinction is clearly a distinction in the laws of theft: if they took the money for a purpose that he prohibited, there is theft here; if they did not give the money for the purpose he requested, but what they did give it for was a purpose permitted in his eyes, then there is no deception.

One may discuss in general the question of gratuitous gratitude. For here there is no gratuitous gratitude of the ruler toward them; on the contrary, they are supposed to be grateful to him.

It seems that in truth the Taz and those who agree with him will not derive the prohibition from the law of “stealing” gratuitous gratitude, but rather directly as a prohibition against taking money not for the purpose for which it was given. That is, what is stolen here is not the ruler’s gratitude but his money.[18] It is true that this is a kind of theft that is not fully within the monetary law framework (except according to the Ramah), and therefore it is called deception.

In practice, one can define this deception as theft only in the Yoreh Deah sense, without the aspect of Choshen Mishpat. There is a kind of robbery of another’s money here, but he has legal ownership over the money. The prohibition is one of theft, but without the aspect of legal title (the question of Mahar”i Basan regarding the relation between the prohibition and the money in theft would not be relevant here).

That is, according to these views, the foundation of the law of deception is taking money not for the purpose for which it was given, and not necessarily stealing gratuitous gratitude. However, in the cases that appear in the Gemara in Hullin there, there are some where there is no taking of money for an improper purpose at all. For when one pretends falsely to honor his fellow (for example, giving him an empty vessel to anoint himself with oil), there is certainly a prohibition of deception there, and obviously there is no taking of money for an incorrect purpose.

It must therefore be said that in all of them there is a basis of stealing someone’s “mind”—that is, if someone does not know information that he ought to know, or that he has a right to know, then we have “stolen” his awareness from him. That is, this is an offense toward one’s fellow and not merely a matter of character traits, but the theft is of information and not necessarily of gratitude. This still requires further analysis.

And as stated, this topic is related to the law of acting contrary to the owner’s intent (Bava Metzia 78b and what branches from it; see my Toledot Adam on Bava Metzia, sec. 5, at length, and this is not the place).

Note: In many ways, the prohibition of deception is the opposite of the commandment of charity, because in charity (kindness) one gives what one is not obligated to give, whereas in deception one takes what one is not entitled to. True, in charity one is somewhat obligated, because there is a Torah commandment; but in deception too one takes something one somewhat deserves, since this is not actual theft.

In practice, deception is the creation of gratuitous gratitude, and the concept of “gratitude” itself (see Pachad Yitzhak in the essay on kindness, Rosh Hashanah) is an intermediate concept: one is not legally obligated to it, yet it is not entirely kindness, since it has a prior cause (the act of kindness that generated the gratitude). Perhaps the problem of deception is damage to the purity of the concept of kindness, and creating gratitude without a prior kindness that precedes it.

If so, the inquiry whether this is a duty of the heart (character traits) or akin to theft parallels, and is the reverse of, the inquiry regarding charity (see lesson no. 1). Like anything that has a non-legal aspect (giving without obligation, or taking without legal justification), one may discuss whether the problem lies in the act or in the intention accompanying it: is giving charity for the sake of the giver (to improve his traits) or for the sake of the recipient (the very act of giving, a commandment “in the object”)? This is not the place to elaborate.

Laws of the communal charity fund and soup kitchen:

In this chapter we will deal with public charity, that is, the way a charity fund is managed and the way charity collectors conduct themselves. The lesson will address the status of state taxes from this perspective.

Main sources

Tur/Shulchan Arukh sec. 256, Maimonides ch. 9, halakhot 1–7, and their sources from the Talmudic discussions.

Main points for expansion

The obligation to establish a communal charity fund and soup kitchen

There is discussion whether the obligation to establish a charity fund and soup kitchen applies only when there are ten Jews in that city. See Tziyun HaHalakhah ch. 9, subsection 3.

From Maimonides’ language in halakhah 3 it would seem, at first glance, that the basis of the obligation is by force of a custom that spread among most of Israel. However, in Kiryat Sefer here he wrote that by Torah law one must give every poor person enough for his lack, while the fund and soup kitchen are a rabbinic enactment. According to his view, it appears that the details of how the fund and soup kitchen are run depend on custom. According to this, see the Radbaz’s note on ch. 9, halakhah 3, where he asked how there are places that did not practice the institution of the soup kitchen, and see there what he answered. In the Tur sec. 253 it is written that nowadays people do not practice the fund and soup kitchen, implying that everything depends on custom, unlike the Radbaz.

However, see the Shakh sec. 253, subsection 1, who brought this from Sefer Mitzvot Katan and wrote that in any case this refers only to the details of administration, but it is clear that every community must have a charity fund. See also Arukh HaShulchan here, halakhah 1.

At first glance it seems that the basis of the enactment/custom is to ease the burden on individuals, so that not every individual will be obligated to support every poor person who turns to him with enough for his lack. But from Kiryat Sefer it implies that the enactment is for the sake of the poor and not for the sake of the householder—that they should have ready money available (the concern that the householder may not have enough to give, and not concern for disproportionality in distribution of the burden among donors). The amount collected from each person is according to distribution of the burden, as we will see below, that it is the function of the collectors to assess. But according to our suggestion, that itself is the basis of the enactment, whereas according to Kiryat Sefer this is only the proper mode of implementation once they have already decided upon a communal fund.

A practical difference between these explanations would seem to be whether a person may direct a poor person who turns to him to the charity fund and not give him himself enough for his lack. According to our suggestion, that is precisely what the enactment was created for. And we have seen a dispute here between Shakh and Taz versus Bach and Vilna Gaon (see my notes in the accompanying sheets to sec. 249).

There is another direction in the enactment of the fund, namely that giving to the fund is a higher form of charity, since the giver and recipient do not know one another (as in the secret chamber in the Temple; see Maimonides ch. 10, halakhah 8, and see Derekh Emunah subsection 35 there), unlike direct giving to the poor person. But it does not appear that this is the main basis of the enactment of the fund.

Our obligation today, when there are state institutions, will, God willing, be discussed in the coming lesson.

The nature of giving to the fund

One may discuss whether giving to the fund falls under the commandment of charity, or perhaps under the obligation to obey the enactments of the townspeople. The Rema in Choshen Mishpat 163:4 exempts orphans from contribution to the public because they are not subject to performing the commandment. This implies that it is a commandment and not an obligation of communal enactment. However, one may reject this and say that one who is exempt from commandments is also exempt from obeying communal enactments. Still, it seems that if they enacted it explicitly regarding him, he too is obligated to obey. The proof is from the parallel paradox concerning the obligation of a blind person or a minor in rabbinic commandments, where although the basis is “you shall not depart,” which is a Torah commandment and they are not obligated in it, there nevertheless applies to them an obligation to heed the sages (for this topic, see for example the essay Divrei Soferim in Kovetz Shiurim of Rabbi Elchanan Wasserman part 2, and in the notes to Shemirat Shabbat KeHilkhatah in the first edition, in the chapter on educating minors, what he cited from Rabbi Shlomo Zalman Auerbach).

The difference between the fund and the soup kitchen

In our language today, “fund” is used for money, and “soup kitchen” refers to distribution of food. In Jewish law it appears at first glance that these expressions are used somewhat differently. The fund is designated for weekly distribution, and the soup kitchen for daily distribution. In halakhah 4 an additional difference appears: the fund is for the poor of that city, and the soup kitchen for the poor of the world.

From here it appears that these are two institutions different in essence: the fund is intended for routine expenses for one who lacks means (a week is apparently a unit of time like a salary period, somewhat like the month used among us), while the soup kitchen is intended for immediate rescue of a person in distress. Therefore it is also reasonable that the fund is intended for the poor of that city while the soup kitchen also serves the poor of the world.

From here too the law in halakhah 3 is clear: the soup kitchen has no fixed limit, while the fund does. The soup kitchen is for solving an urgent burning problem, and everything depends on the need (and see Derishah here, that it also depends on poor people from elsewhere who happened to arrive in the city, whose number is not fixed, unlike the fund, which is designated for the city’s poor, whose number is known), whereas the fund is akin to a salary given according to an assessment of each person’s needs.

The main lesson is that even in our time, when generally these institutions are not practiced literally (especially not the fund), we still must pay attention to both aspects: whether we have solutions for supporting the poor of our city, and participation in solving urgent distress of the poor of the world.

From the law it emerges that the distinction between food and money is not essential, for money is a means to buy food and therefore it can also function as a soup kitchen. Food, of course, cannot serve as a fund (unless by the rule that money’s worth is like money, for the poor person could sell the food he received today and keep the money for himself. In the reality of our times, it seems obvious there is no logic to conduct oneself this way).

Those fit to be collectors

Maimonides and the Shulchan Arukh define the criterion for collectors as “known and trustworthy people.” See Derekh Emunah ch. 9, subsection 5, and Bi’ur Halakhah at the beginning of ch. 9.

The Tur here adds that they must also be “trustworthy, wise, and discerning,” so that they know how to examine poor people who are not frauds (see Shakh and Vilna Gaon here, who refer to sec. 251:10). The Tur further added that regarding collectors who are unfit—not only when they are not upright, but even when they are not discerning, so that the poor can “work them over”—it is preferable for an individual to give charity himself and not through them. The Tur there expresses himself as saying that they should be rejected and not collect at all, and when this is impossible one should not give charity through them. This is somewhat difficult: what does he mean, for when this is impossible one cannot refrain from giving them? It must be that he means that by giving through them one does not fulfill the obligation of charity, especially not the tithe of money. Or perhaps he means that it is impossible to remove them from the position itself, but one can avoid giving to them (see also below in lesson number 10).

Below we will see that the office of collector is a position of authority over the public, and it has an aspect of a religious court, and this imposes additional limitations on those who serve in it.

The office of collector as authority

In halakhah 3 the Shulchan Arukh wrote that the fund is collected by two, administered by one treasurer, and distributed by three. The soup kitchen is collected and distributed by three, because it requires an assessment of a religious court both regarding the giver and regarding the recipient. The Taz and Shakh explained that the office of collector is authority because the collectors have coercive power. That is, collectors are authority to compel, and a religious court is needed to assess.

It appears from here that the collectors are responsible for all the stages: the assessment, the coercion, and the distribution. In Derekh Emunah subsection 10, a dispute is brought as to whether this is how it should be done. In many places the practice is to divide these powers, and in practice the collectors are the rabbi’s agents, while he is the one who distributes and assesses, or at least sets the criteria. In this case it seems that the rabbi is the religious court together with the collectors, and then it seems they can be laymen, although of course the requirement of trustworthiness remains in force.

According to this, it seems that in a place where pledges are not seized, collection can be done by one (see the Frankel index, halakhah 5).

See regarding this what is written in Tzafnat Pane’ah here, ch. 9, halakhah 1.

And see Arukh HaShulchan here, halakhah 4, who argued at length that the requirement of three here is exactly like the law of a religious court (and in practice they should have needed twenty-three, since it is like capital cases, as stated in the Jerusalem Talmud cited there).

Regarding the definitions of a collector and the status of the money in the fund

There is discussion whether the collector is the hand of the owners or the hand of the poor. A practical difference, for example, is with respect to the right of discretionary benefit (whether he may give the charity to whomever he wishes, or not). See, for example, Ketzot HaChoshen sec. 276, subsection 2 (note the two directions that arise at the end of his words there).

At first glance, the status of the money in the fund is disputed by the Rosh and the Ran in Nedarim 65b. The Rosh there implies that the money belongs to the donors as long as it has not yet reached the hands of the poor (see Machaneh Ephraim, Oaths 16). The Ran there disagrees and holds that the money has left the original owners, but he does not write to whom it now belongs. One may say it belongs to the community. One may say it belongs to the poor (and so wrote Chavot Da’at, Yoreh Deah sec. 160, letter 10). One may also say that the money belongs to the “tribe of the poor” (or to a consecrated poor-persons’ fund). On this topic, see lesson 11.

However, we have found at least two places where it is clear that the collector is the hand of the poor: with respect to the rule of all three parties being present, and with respect to acquisition through attachment.

With respect to the rule of all three parties being present: the Shakh in Choshen Mishpat sec. 126, subsection 86, notes that according to the Shulchan Arukh, one cannot confer a right for another through the principle of acting to another’s benefit under the rule of all three parties being present. It is therefore difficult how in Yoreh Deah 258:8 he nevertheless ruled that the collector acquires on behalf of the poor (his source being Bava Kamma 36b). The Shakh explained that the collector is the hand of the poor. Some explained there that the collector is the agent of the poor (see Be’ur HaGra there, subsection 53).

With respect to attachment: the Rema in Choshen Mishpat sec. 202:4 (based on Kiddushin 27a) wrote that the collector acquires movable property for the poor. Rabbi Akiva Eiger explained there that this is by the law of agency.

That is, there are here two directions (as with courtyard acquisition): hand or agent. A practical difference between the two views is whether, when there is an impediment to appointing an agent, the collector can nevertheless acquire on behalf of the poor.

According to this, it must be said that the Rosh in Nedarim is speaking of money that is not fixed and not specified, and therefore it is clear that the poor still could not have acquired it. Here, however, we are speaking of money that is fixed and specified. Another distinction may be drawn between a case where the poor are specified—that is, there are known poor people for whom the money is designated—and a case where no concrete poor person is under discussion. However, if there is indeed a concept of a “consecrated poor-persons’ fund,” then one can acquire on its behalf even when no specific poor people are identified (and this is indeed the explicit innovation of the above-mentioned author of Chavot Da’at).

Changing the purpose of the fund

The topic of changing the purpose of charity money is tangled and confusing, and also depends on the previous discussion. We will discuss it, God willing, in lesson number 12 after we also study the topics of prohibition and vow in charity. For current study, let us preface several points to which attention should be paid: first, one must distinguish between changing charity money that has already reached the collector, where the problem is one of the money of the poor (robbing the poor), or that the donation was not made on that understanding (robbing the donor), and changing the purpose of money that is still in the owner’s hand, where the problem is apparently violation of a vow (in the following sections we will see that charity is a vow. However, some also understood this under the law that saying something for the sacred is like delivering it to an ordinary person. See lesson 11). The discussion here is of the first type, and its main concern is money and not prohibition (robbing the poor or robbing the donor). In the following sections we will see the discussion on the second plane, whose concern is the prohibition of “he shall not profane his word.”

Of course, money that has reached the collector may also have come from charity vows of the donor; therefore, even when one focuses on the monetary plane of changing the purpose of the charity, one must also take into account the donor’s prohibition of “he shall not profane”.

In the Shulchan Arukh, halakhah 4, it is written that the townspeople may change the fund into the soup kitchen and vice versa, and even more than that: they are permitted to change the purpose of the money to any public need they see fit! (See lesson no. 4 on the tithe of money, where according to several views among the decisors, general public needs are included within charity.)

Of course, the donors need to know that when donating to the fund they are giving on that understanding, and to take their vows into account (not to give money that they obligated themselves by vow to give specifically to charity).

See here the discussions as to who may change the purpose of the money (the sage, the collector, the seven leaders of the city). It should be noted that the personal question is not essential here, for on the substantive plane the main discussion is whether it is at all possible to change the purpose. For practical Jewish law, of course, this is a very important discussion.

For more detailed analysis on the substantive plane, one must wait for lesson 12.

Who is called a resident of the city, and what is a “city”

With respect to charity, one must consider what a “city” is. Simply speaking, a “city” is a community that manages its ongoing affairs together. In the bitter exile, generally every city had a defined community, and sometimes several communities. In a situation where there are several communities, it stands to reason that each one is considered a “city.”

Nowadays, especially in the Land of Israel, but also abroad when the range of interaction has become very large (the global village), one may discuss whether the concept of a “city” is still valid. It seems that this too will depend on the question of how the affairs of the community are actually conducted. If there is a community around a synagogue, then it will be the “city” for this purpose. If there is a community whose affairs are conducted together, though it is split among several synagogues (= for example, a deserted island with two Jews), one may say that the whole community is regarded as one “city.” It seems obvious that everything depends on custom. This is an important practical difference also regarding “you shall not form factions,” and the decisors of our time have discussed this, but this is not the place.

And it seems that the binding criterion in every place and time is that there cannot be a situation in which there is a group not organized under the umbrella of a community (a “city”)—that is, a group not obligated to contribute to some fund. How broad that umbrella is depends on custom. Nowadays, when there is a state, one can certainly discuss whether it is not in the category of one “city,” since its affairs are conducted together to a certain degree. See below in the lesson.

After defining what a city is, we must define who is a resident. It is clear that if the entire state is a “city,” then one who moves from place to place within the state does not enter the categories discussed here by the decisors.

Assuming that there are clear definitions of the concept of a “city,” the question arises concerning one who relocates, or who travels for business to another city. See Maimonides ch. 7, halakhah 14, and ch. 9, halakhah 12, and Tur/Shulchan Arukh halakhot 5–6 here.

According to the decisors, the times that appear in the Shulchan Arukh in halakhah 5 are relevant nowadays (see for example Derekh Emunah subsection 75). Today we are more mobile, and this points to stringency in the law of a city resident. It is reasonable that nowadays a very short time would suffice to be called a resident. For this reason, it is likely that our custom today follows the Rema in the name of Sefer Mitzvot Katan, that thirty days is the fixed period for all needs.

See in Derekh Emunah there a dispute whether all these time periods deal with one who comes to live there or also one who comes to settle permanently.

The difference between coming to live and coming to settle permanently is apparently long-term plans. If someone comes to live in a place and already now knows that he will leave it after some time (and certainly if he knows he will return to his original place), this is called coming to live. Coming to settle permanently is one who currently has no other plans, even though of course it is possible that in the future he will move elsewhere. See Derekh Emunah there regarding one who buys or rents an apartment.

The decisors, following the Gemara in Megillah 27a, distinguish between an individual and a group who are guests in a city. An individual gives to the poor of the host city, whereas a group gives only because of suspicion; and when they return to their place, they demand back from the collector their contributions and give them to the poor of their own city. See the Taz here, subsection 6, for the reason for this distinction.

And all this is with occasional charity (as in a situation of a calamity that occurred in the host city and the like). Fixed charity one need not give at all in the host city.

It is somewhat difficult why when there is a city dignitary there the law changes, and in that case even a group gives to the host city. See Arukh HaShulchan at the end of halakhah 17, who explained this, and several points emerge from his words (though it appears he combines them into one): 1. It is not respectful to the Torah to take the donation back from him. 2. He himself also cares for their city, and we are speaking of a city dignitary who sees to all the cities around him (like the Council of the Four Lands, or Rabbi Chaim Ozer in Vilna before the Holocaust). 3. He will send to them on his own initiative, even without their asking him to (out of respect for Torah).

A communal enactment in a city to give from everything one earns

The Rema at the end of halakhah 6 notes that if a person does business in a certain city and wants to separate his tithes, he should give the tithe to the owner of the money (in the case of an investment arrangement), or distribute it himself (when the money is his). If there is a communal enactment in the city that profits earned in that city are to be distributed to that city’s poor, he must give the tithe to the poor of that city.

This situation occurs in the context of income tax on transactions abroad, where sometimes the businessman can decide where to pay his taxes. Very often (it seems usually) the tax abroad is lower, and therefore there is a tendency to prefer paying it there. From here it follows that if there is a clear enactment of the place where the transaction was made (assuming the place is Jewish, for otherwise the problem is more complicated), their hand has the upper hand. If there is no such enactment, the law depends on the status of tax payments (see lesson 4 and the next lesson). If they indeed fall under the category of charity, then there is strong reason that one must pay the tax in the Land of Israel. If indeed the tax is higher in Israel, then it would seem that one nevertheless must pay it here, for this is the communal enactment here, though this still requires analysis.

It seems that one must also introduce here the laws of precedence of the poor of the Land of Israel over other poor people; and for the same reason, perhaps even more so, there is precedence for taxes to the State of Israel more than to other states. However, this depends on the discussion of the reason for the law of precedence (is it because the poor of the Land of Israel are engaged in the commandment of settling the land? See Shulchan Arukh sec. 251:3 and the accompanying sheets there on the matter of precedence according to status).

Lesson number 10: The state as a public charity fund

This topic is difficult to discuss in a purely halakhic way, and therefore each aspect of the laws of a public charity fund must be examined as it is reflected in this context. I will note that the entire discussion pertains to municipal funds no less than to state funds (except in places where otherwise noted).

There are several aspects in the context of a government fund and charity:

1. The status of tax payments as charity (and regarding their calculation in the amount subject to tithing, see lesson 4).
2. Who the treasurers are.
3. Whether there is an obligation to establish a fund and a soup kitchen: what is a “city.”
4. What the state is supposed to take care of and what private individuals are supposed to take care of: should all the money be given to the state fund, and should all needs be met by it (charity as voluntary giving; the relation to coercion regarding commandments in general).

A.

In lesson no. 4 we briefly saw the topic / passage of the status of tax payments regarding calculation of the amount subject to tithing. The conclusion seemed to be that one should deduct the tithe from the net salary. In addition, the question was briefly discussed there whether tax payments are considered charitable giving.

The accepted distinction in Jewish law is that taxes are payments to the king (the government) for its needs and the needs of the public (roads, garbage, army and police, etc.), whereas charity is collected in other frameworks (public funds and private donations). It should be noted that taxes in a modern welfare state contain both of these components: some are designated for helping the needy (and even for Torah study), and some are designated for public needs. There are also intermediate areas, such as education (and one must discuss whether education only for the poor is considered charity, or perhaps education in general; and likewise which part of education—the part needed for a profession, for general education, or only for fear of Heaven and Torah. We have already seen that Torah is considered charity, even if the learners are not all poor. This is the case in most yeshivot).

According to the above distinction, the discussion of the status of taxes should be divided into two parts: whether the relative portion given for helping the needy, or for commandments, is considered charity. In addition, there is the halakhic / of Jewish law determination (mentioned in lesson 4) that public needs are also considered charity.

This entire discussion assumes that the taxes are indeed paid by the salary recipient. This too requires discussion, for it is plausible that the salary is only the net amount, and the definition “payment of taxes” has only accounting significance. If that is indeed so, the discussion is not relevant. If we relate to taxes as part of our salary that we pay to the government, then one may continue the discussion according to the two parts above. It should be noted that if we adopt this assumption, then the amount subject to tithing is the gross salary, and if taxes are not considered charity—and certainly for purposes of tithing they are not considered charity (since they are imposed as an obligation)—then we are obligated to pay tithe on them as well. Perhaps one may be lenient on the grounds that taxes are no worse than necessary expenses for going to work, which may be deducted from the amount subject to tithing. We will continue the discussion on the assumption that the taxes are indeed paid by us into the state treasury.

As for the first part defined above, it is very reasonable that it is considered charity, but apparently it cannot be given from tithe funds, as explained in lesson 4 (see there what was written in the name of the Taz, and so it is practiced today, that tithe should not be given to something obligatory, even though it has the parameters of charity. And see the Shakh, sec. 256, subsec. 3, who wrote that in the case of an unfit treasurer one should give charity according to what is detailed in sec. 249, that is, regular charity. This implies that these are two equal tracks of charity).

The second part may be more problematic. Public needs are considered charity according to some halakhic decisors, see for example Shulchan Arukh sec. 259, laws 2, 3, 6, and sec. 256 law 4 and the Vilna Gaon there subsec. 7. Also in the Taz Orach Chayim sec. 153 subsec. 2, who elaborated on this, and responsa Chatam Sofer Yoreh De’ah sec. 220 and sec. 244, and more. It is important to note that most of these sources discuss the question of what is done with surplus charity funds, that is, whether “extra” funds (left after use, or whose use was canceled) may be transferred for public needs. Therefore, the determination that public needs are considered charity is indeed correct, but regarding priority in charity, they seem to be the lowest priority.

The question is whether the public in Israel is considered a Jewish public. Presumably, taxes for the American public are not considered charity. We mentioned in lesson 4 that at least the fraction represented by the Jewish public within the general public might perhaps be considered charity according to these decisors (although this contradicts, in a certain sense, the entire concept of a public. And if indeed the state is “Jewish,” then presumably all its needs are the needs of a Jewish public, including the part devoted to supporting the non-Jewish residents among us).

In any case, it appears that one may rely at least on these decisors regarding the relative part dedicated to the benefit of the Jewish public. However, one should note that taxes may be considered charity, but their payment cannot be deducted from the tithe amount, as above.

B.

The second point that arises in this context is: who are the treasurers? We saw that the integrity of the treasurers is a condition for giving charity through them, and it is forbidden to appoint treasurers who are not fit and not wise (see the accompanying pages to sec. 256). In this context one must discuss whether treasurers who are not observant of Torah and commandments are considered “fit,” even if they are fit in the accepted senses. There is a prohibition against placing people who are not fit in authority over the public (see for example Rema Choshen Mishpat 37:22). Generally, from a halakhic / of Jewish law perspective (and perhaps also practically—“if there is no God in this place, they will kill me”) one who is not observant of Torah and commandments is considered not fit.

However, if we indeed want to remain one public, there is no choice but to include such people in leadership as well. In any case, all this pertains to the question whether it is permitted to appoint such people. Once these are the people appointed over the state fund, one must then discuss the question whether to give charity through them. This question is problematic. Ostensibly, it seems that the answer will be determined independently of the prohibition against appointing such people, and rather according to the degree of trust in them that the money will reach its destination. However, the Tur writes in sec. 256 that there is a rabbinic prohibition against giving a coin to the charity purse unless a Torah scholar is appointed over it (brought by the Rema sec. 256 law 1, and see also the above-mentioned Shakh 256 subsec. 3). See also the Tur sec. 249, and especially the Beit Yosef there subsec. 7, and note 21 in the glosses and notes in the complete Tur there.

I have seen in Igrot Moshe Yoreh De’ah part 1 sec. 149, who addressed the prohibition of appointing a treasurer who is not observant of Torah and commandments, and also added that nowadays we have no choice. He further discussed there that even if there is no choice, one should refrain from giving charity through them, unless they act honestly. See there at length on the entire matter.

However, ostensibly this is a theoretical discussion, since tax payments are obligatory upon us, and therefore usually we have no choice. The remaining question is only whether what we paid is considered charity. That question was discussed above.

A point that nevertheless may depend on the nature of the “treasurers” is whether to donate voluntarily to the state, or perhaps to prefer private channels. For example, if someone is entitled to a discount on some payment, but can manage without it. The question is whether there is value in not taking it. And would this be considered charity or not? In my humble opinion it seems obvious that it is preferable to take it, and one can give it as charity directly to needs that he sees fit. The reason for this is the nature of the goals of taxation, which also includes unworthy goals. In addition, there is the above-mentioned prohibition of the Tur against giving a coin to a purse whose appointee is not a Torah scholar. And in addition, as we saw, public needs are the lowest priority for charitable giving, and therefore even when the goals are proper it is still preferable to give to genuine charitable purposes.

If the person who takes the discount takes the money for his own needs (which is of course legitimate), then even according to the above-mentioned Tur it does not seem possible to say that this is preferable to leaving it to the state. In any case, if he wants to give it to charity, it seems obvious that it is preferable to give it directly to a worthy cause.

In the accompanying pages in the previous section we discussed paying tax abroad that is lower than in the Land. Here the problem is more difficult, since the alternative is that the money will go to another state and not to his own pocket. Therefore there is more reason here to pay tax in the Land, as we concluded there. And this does not relate directly to the previous question about voluntary tax payment.

C.

Another point that arises in this context is whether there is an obligation to establish a fund and a soup kitchen in every city, or community. In practice the question arises here: what is a “city”? See discussions in the accompanying pages to sec. 256.

The answer is not clear. The custom being discussed was in communities in the Diaspora (and even according to the view that this is rabbinic law, the details depend on custom, as explained in the accompanying pages in the previous section), where a city was a city in the ordinary sense. Plainly, it seems that a city is a community of people whose lives are conducted jointly. The guiding principle is that no Jew should remain who does not give charity, and no Jew should remain who cannot receive charity somewhere. That is, the area should be covered. As we saw in the accompanying pages, the principle is that we should have a solution for the poor of our city and for the poor of the world (a fund and a soup kitchen).

Since this is only custom, and there is at least a doubt whether a state is not a city, it seems that there is no obligation today to establish a fund and a soup kitchen in every city, but there certainly is value in this. Everything depends on the needs.

D.

A final point that continues the previous one. The question is what the state should be expected to care for and what private funds or private individuals themselves should care for, if at all. This question is asked on two planes: should all the money be given to the state fund? And should all needs be met by it?

The principal question is the relation between voluntary charity and coerced charity. This question lies on the border between thought and Jewish law. In the first lessons we saw the question whether charity is for the giver or for the recipient. We saw that there may be disputes among medieval authorities (Rishonim) and halakhic decisors here. In particular according to Maimonides’ view, that the prohibition of charity is for the sake of the giver’s character traits (as we inferred in the topic / passage of Bava Batra from Jeremiah and the men of Anathoth, as opposed to Rabbi Akiva and Turnus Rufus), then payment of taxes provides no answer whatsoever to this problem. A payment given under compulsion does not constitute work on the giver’s character traits.

But what is being discussed here is the prohibition. The positive commandment is on the giving itself, at least according to Maimonides, and therefore giving to the state suffices even if it is coerced, for in the end the money was given as charity. As for the prohibition, which is transgressed only by one who does not give to those who appeal to him, ostensibly there is no special value in fulfilling it. If the state solves all the problems of the poor, then no one will appeal to me, and therefore I will not transgress the prohibition.

However, the halakhic decisors wrote that there is value in standing by prohibitions and not transgressing them (“he intended to commit a transgression and did not commit it”; see Kiddushin 39b), but there is no actual obligation here.[19]

It seems that this is similar to someone who wants to move to a city inhabited entirely by rich people, where there is no need to give charity, and perhaps poor people from elsewhere also cannot get there. There is no active transgression of the prohibition, but neither is there fulfillment of it.

There still remains here the problem of interfering with the Holy One, blessed be He, in His governance of the world: for Rabbi Akiva says to Turnus Rufus that Torah and commandments were given only so that through them we may be saved from the punishment of Gehinnom, and we are acting in such a way that we will not be able to be saved through them, for we will not stand in such a situation.

This is similar to the Talmudic text Berakhot 35, “What is the difference between the earlier generations and the later generations,” where they would bring produce in through the roofs in order to exempt it from tithing. This is a scoundrel within the bounds of the Torah. Here society becomes debased, not the individual.

In practice, one could think this regarding every single commandment. In an ideal Torah society there is a religious court which is supposed to ensure, by coercion, the observance of all the commandments by each individual. In such a state, transgressions and failure to fulfill commandments are indeed prevented, but in the observance of the commandments there is no spiritual progress, and they do not rectify the individual person. There is no formal transgression here, but there is a problem. Nevertheless, the Torah regime obligates the religious court to do this. One who does not take a lulav or build a sukkah is beaten, perhaps even until his soul departs. Perhaps because the social danger of corrupt norms outweighs the problem of serving God under coercion.

Even so, it seems that in charity there is something different. In the opening lesson we tried to characterize the term charity—why was it chosen specifically to describe the commandment to give money to the needy? And we saw that there is here a giving of something not owed, that is, “kindness.” If so, in a certain sense there must remain a dimension of kindness even in a perfect social system. It cannot be that everything will be in the category of obligation.

Perhaps this itself is the promise, “for the poor will never cease from the land.” We are commanded to do everything in our power so that the state will solve all the problems. This itself is our effort as a society. The Torah promises that beyond all efforts, we will never succeed completely. There will always remain here a voluntary dimension of kindness. This is the entire promise of “for the poor will never cease”—that we should not shrink from trying to solve the problems completely; that we should not have an impulse to leave problems in order to realize the quality of kindness.

It follows, then, that we must try to ensure that the state indeed solves all the problems, and leave nothing for the individual, and nevertheless there will always remain room for private kindness (“the poor will never cease”).

On a deeper level, it seems that this very social effort to solve all problems institutionally is itself voluntary charitable giving. The body that gives charity is not the individual but society, which cares for every individual within it. Only the basic entity that gives charity changes. It becomes the public instead of the individual.

Something like this idea may be found in statements of the Sages praising Israel for taking upon themselves rabbinic commandments beyond the letter of the law, that is, beyond what the Holy One, blessed be He, Himself obligates them to do. The conception is that rabbinic commandments are in the category of awakening from below, toward the Holy One, blessed be He, from below upward. Here too one can say that only the Sages added these commandments, and we are compelled to observe them—so what “awakening from below” is there here? The correct perspective is that the entire public added these commandments, and it is to the public that the Holy One, blessed be He, speaks when He praises Israel for this.

Thus far one side has been presented. However, on the other hand, there is no communist position in the Torah. Even when we saw in Maimonides a sort of “communist” position (in lesson no. 4 part 1 section B), there was only a consideration of the burden on the public according to its ability, or according to how much it had already contributed. There is no actual demand here for redistribution of assets.

Monetary law in Jewish law teaches us that there is no sharing of property (see opening lesson section 10, 3). That is, there is no institutional nullification here of the differences between people. The obligation to contribute, even according to Maimonides (in the “communist” approach in the above lesson), is in the category of charity and not in the category of a monetary obligation. It also has limits (up to one-fifth, etc.), and certainly there are limits on coercion (even if one may contribute more than one-fifth, certainly one is not coerced to do so; that is, this is voluntary). That is, the Torah’s approach is that although charity is coerced, there is no abolition of private property and its redistribution. It remains a commandment belonging to Yoreh De’ah and not to Choshen Mishpat. The delicate balance between a commandment that is coerced and an actual obligation is what characterizes the quality of kindness in charitable giving.

It is true that when there is a concrete problem, then the religious court will coerce the person according to his ability. But there will not simply be a redistribution of means among all members of the community without any concrete need for this.

Communism, ostensibly, is kindness in its embodiment. All property is divided equally among the citizens (those who are equal and those who are more equal). Kindness there is determined as part of law (state law). This is a mixing of Yoreh De’ah with Choshen Mishpat, and this is a path that Jewish law does not recommend as a general mode of conduct. In the USSR there was ostensibly kindness without a drop of law, but in practice precisely because of this it was all law.[20] Kindness without law cannot endure, and likewise law without kindness. In the creation of the world the Holy One, blessed be He, combined the attribute of mercy with the attribute of justice, since He saw that the world could not endure on justice alone. The USSR collapsed on its own without any external enemy.[21]

If so, it seems that the Torah balance (not necessarily the halakhic one) is to strive as much as possible that the state solve the problems of the needy, and this also on the plane of Choshen Mishpat (through legal obligation to pay taxes to the state for these needs). This is Choshen Mishpat for the needy, and not completely communist Choshen Mishpat for every citizen equally. This can be learned from the laws of charity for the individual. The law of “sufficient for his lack” that exists in the laws of charity, the halakhic decisors wrote, is not enforced by coercion.[22] This is something resolved in Yoreh De’ah and not in Choshen Mishpat. Only basic distresses (which also depend on norms, and are not entirely objective) are resolved through the legal mechanisms of Choshen Mishpat (coercion in charity includes descending to a person’s assets; see lesson 3). All the remaining problems should be solved privately or in small communities, voluntarily.

The criterion is that the state solves the basic problems, and the problems of “sufficient for his lack” are solved through voluntary means of Yoreh De’ah. As on the private plane, so too on the public plane. Whatever the individual is coerced regarding, one should try to advance through legislation and public coercion. Whatever the individual is not coerced regarding, it seems unnecessary to provide for in a legal framework on the public plane as well.

Of course, what is called a basic need changes with time and place, and there is no way to give an objective criterion for this.

Regarding the basic problems, we are obligated to strive that the state solve them completely, even though there is no longer room here for kindness. The Torah promises that this will not end, and plainly the mechanism is the very rise in the standard of living. As we saw, the rise in the standard of living determines what counts as “sufficient for his lack,” and thereby determines what should now be solved by legislative means, and what should be left to the generosity of private individuals.

And we will conclude with a possible source for the fundamental point: the question whether it is preferable to establish an institutional system or leave everything to private volunteering seemingly arises in Beit Yosef at the end of sec. 250, who brought a responsum of the Rashba part 3 sec. 380 (see also Rema at the end of sec. 250 who brings it) regarding a dispute conducted among residents in a city with many poor people (see my accompanying pages to the above section). Plainly, there is a dispute there whether to establish a fund to be collected according to wealth (more from the rich), or to let the poor go begging door to door, in which case they will receive from everyone equally (or at least not proportionally to property). Ostensibly this is a dispute whether to establish an institution like a tax system, which takes from every property owner according to his property, or to leave this voluntary. The Jewish law rules that the law follows the middle class, that a fund should be established. However, as we saw in the accompanying pages, it is possible that the explanation is because of the obligation to establish a fund and the prohibition against sending the poor to beg door to door; and it is possible that the explanation is that the obligation of charity follows wealth, and the way to organize this is through a fund. Perhaps it depends on the goal of the fund (for the benefit of the givers, so they will not have to give every needy person “sufficient for his lack,” or for the benefit of the needy).

In any case, the Beit Yosef and the Rema found it proper immediately afterward to bring another responsum of the Rashba, where the Rashba rules that according to strict law charity is according to wealth, and concludes: “and one who gives according to the blessing is more worthy of blessing.” It is not clear to me whether he means one who gives according to voluntary donation, to say that despite the tax there is still value in giving voluntarily, or whether this is reinforcement for the previous ruling that everyone should give according to the blessing with which he himself was blessed, that is, according to his wealth.

And see regarding this the article by Rabbi Sheviv in Techumin 6, p. 270.

On matters of taxation and charity, see two articles in Techumin: vol. 4 p. 404 (Rabbi Uri Dasberg), and vol. 6 p. 270 (Rabbi Yehuda Sheviv).

Preliminary note: it should be noted that in these sections we divide the study into topics that do not necessarily include complete sections. In the next three weeks, with God’s help, we will study the following topics:

1. The order of collecting charity (which is a continuation of the previous topic of a public fund).
2. Charity as a vow—“do not delay” regarding charity.
3. Changing the purposes of charity funds.

This week the study (and the accompanying pages) will deal with the topic of the order of collecting charity (which includes only part of sec. 257 in the Tur and Shulchan Arukh).

The order of collecting charity:

This part is a continuation of what was studied in the previous week, where we dealt with the obligation to establish a public fund, and how it is collected and distributed. Here we continue to study the manner of conduct of the treasurer with the money of the fund and in collecting it.

Main sources

Tur and Shulchan Arukh sec. 257 laws 1–2, and 5–11. Maimonides ch. 9 laws 8–11

 

Main points for expansion

The order of the section.

One must examine why he opens with the laws of suspicion, continues with the laws of charity vows and “do not delay,” and concludes again with additional laws of the treasurer’s conduct. Especially since in Maimonides these laws appear consecutively without the middle part of charity vows.

And indeed, one who examines the Tur will see that only the first two parts appear in it. The reason why the Tur began in this section the discussion of charity vows is apparently because the part of the treasurer’s conduct is not detailed and is brief. The second part is an introduction to the next two sections (and it still requires examination why he did not split the section, even though the first part would then have been short). Accordingly, it seems that the Shulchan Arukh followed the Tur, and arranged the section like it, but later additional laws were added that did not appear in the Tur, and therefore he inserted them at the end of the section (and again it still requires examination why he did not insert them after the first part).

Of course, one should examine whether in the Shulchan Arukh there are other similar phenomena of arranging laws following the Tur and adding additional laws only at the end, which lead to such a puzzling final order, but this is not the place.

Laws of suspicion

In laws 1–2 there appear several laws that obligate charity treasurers because of suspicion. Treasurers may not separate from each other, and if they find money they do not put it into their own pocket, etc. (see also at the end of sec. 256 law 6 in the Rema).

The source of the law: “and you shall be clean before the Lord and before Israel.” See also the Vilna Gaon here. See the Bi’ur Halakhah on law 8, that the suspicion is a mode of conduct for the treasurer and not a real suspicion of the public. Regarding suspicion in general, see in very great detail in the Talmudic Encyclopedia, entry “suspicion; appearance to the eye” (end of vol. 17). See there particularly in letter A regarding private chambers, and regarding the relation between appearance to the eye and suspicion, and compare the above-mentioned Bi’ur Halakhah. It is recommended to go over what is said there, at least cursorily.

These laws also raise the opposite side: when are we permitted to suspect the treasurers, since there is an obligation to judge favorably. In Maimonides law 11 and Shulchan Arukh law 2 it says that one does not make an accounting with the treasurers, meaning that we must trust them. Regarding the law of the obligation not to suspect, see Sabbath 97a and Yoma 19b (one who suspects the innocent is stricken in his body), and in the Talmudic Encyclopedia under the entry “suspicion” (the one preceding the above entry). Again, it is recommended to go over the entry (it is also shorter) and see when there is a prohibition and when there is not.

And it seems that regarding treasurers there is a special law beyond the ordinary law of the prohibition against suspicion, since they were appointed by the public and thereby received its trust. More than that, if they are suspected again, they will not want to accept appointment (see the gloss of Maharsha here, s.v. “and one does not make an accounting”). Therefore it is clear why Maimonides brings a special source for this at the end of law 11.

See Perishah here, who had difficulty reconciling the obligation upon treasurers to prevent suspicion of themselves with the law that one does not make an accounting with them (see also the Taz here).

Because of both of the above sides, the Rema says in law 2 that the treasurer is obligated to remove himself from suspicion, and also to report to the public, even though the public is not entitled to demand this from him (if he is fit). Thus did the prophet Samuel before his death, and Moses our teacher in the Torah, who counted the donations before everyone, and these matters are ancient.

However, see the Shakh here subsec. 3 and Pitchei Teshuvah, whether he is obligated to provide a report before every challenger.

And in Noda B’Yehuda Tinyana Yoreh De’ah sec. 157 it implies that one is not obligated to give a detailed report on every single coin, but only enough to clear oneself in a general way.

The Rema there brings an important addition from Terumat HaDeshen sec. 173, that these matters apply to every public office (officials over the public).

He further added there that when the public want to replace the holder of the office, they may do so, and there is no issue of suspicion here. It seems that this means only the entire public, and not individuals who are suspicious, for they are forbidden to suspect (and if there is a valid reason, they should persuade the public).

It should be noted that here the expression “suspicion” appears for the first time in the sense of the prohibition against suspecting, and not in the sense of the treasurer’s obligation to remove suspicion. It is possible that the obligation to refrain from doing things because of appearance to the eye derives from concern lest one cause another to stumble in the prohibition of suspicion. Perhaps there is even here a prohibition of “do not place a stumbling block.” Therefore it is reasonable that the same terminology is used (see the above-mentioned Talmudic Encyclopedia).

When one sees a suspicious treasurer, it is permitted, and even desirable, not to give to him, but rather to give charity himself. Thus we saw in the accompanying pages to the previous section (s.v. “those fit to be treasurers”) in the name of the Tur; see there in our discussion. See further Shulchan Arukh sec. 249 law 7, and Rema 256 law 1 and the Shakh there.

Therefore it requires examination regarding the law of an unfit treasurer appearing in the Rema, for to such a treasurer it is forbidden to give any charity at all. Perhaps one may say that this refers to one who had been fit and then went bad.

Regarding a treasurer who was negligent, see Derekh Emunah subsec. 71 and Tzedakah U’Mishpat ch. 7 law 18 (whether and when he is a paid guardian over the fund), and law 6 here. See lesson 12.

Beyond the specific laws in the Tur and Shulchan Arukh because of suspicion, see regarding change-making and money exchange by a treasurer in the book Tzedakah U’Mishpat ch. 7 note 18.

Surplus charity funds

See here at the beginning of law 2. See Rema sec. 256 law 4, and my notes. See Tzedakah U’Mishpat ch. 7 law 21 and note 41 there.

Priestly acquaintances

See Shakh subsec. 11 and subsec. 13 and lesson no. 6.

The treasurer’s credibility

See the dispute of the halakhic decisors here in the commentaries. Ostensibly he has a former “migo,” since when he was treasurer he could have misappropriated without any report of it. However, this is “in his hand” and not migo, and in such a case some say it is effective even regarding the past (see the dispute between Abaye and Rava, Gittin 54b, and Shev Shema’ta 6:1, and the matter is old). In any case, one should note here two dimensions in this law: A. the prohibition against suspecting a treasurer (as explained). B. monetary credibility. Clearly the prohibition cannot dictate credibility to a treasurer without the monetary laws of evidence, for we are dealing here with the money of the public, or the money of the poor, and the prohibition imposed on us is not sufficient reason to damage the money of others.

A poor person who has rich relatives

See sec. 252 law 12 and my notes there.

Giving all one’s charities to one poor person

See law 9. See my notes in the accompanying pages to sec. 251. It requires examination why this law is located here in the context of laws of the treasurer’s conduct. The wording of the Shulchan Arukh here indicates that his intent is every person and not specifically the treasurer (unlike law 10; see Rema).

Distribution to relatives

It is important to note the distinction of the Rema. It seems simple, but when a person sees his relatives, sometimes their distress appears to him more real, and he feels that they truly and sincerely take precedence over others.

From the law of “and you shall be clean” it seems that there is reason even to minimize giving to one’s relatives, but this is a law imposed on him, not on them. Therefore it seems that one should give to them according to the criteria, or hand over discussion of their case to another treasurer.

However, see Maharam Shik Yoreh De’ah sec. 235, that treasurers may compromise in order to avoid dispute, implying that it is permitted to use public funds in order to save oneself from a prohibition (and see there that the challengers are considered robbers).

And regarding tithe funds, see lesson 4. There we saw that there are halakhic decisors who remarked that charity to one’s relatives is somewhat like an obligation upon him, for he would have given it even if he had no tithe funds, and therefore it is not proper to give tithe funds to one’s relatives unless he would not have given them without the tithe funds. According to these decisors, this is what the Rema here is speaking about.

One who leaves money and appoints his wife

See law 11 here. See my notes in the accompanying pages to sec. 248, and apply them here.

Lesson number 11: Charity vows

From this point on we begin the final stage of the study of the laws of charity. This stage deals with the laws of charity as a vow, which is a conceptually difficult and analytically complex topic / passage. It contains a complex touchpoint between monetary law and prohibition, as we shall see below.

After that, we will deal with the question of the status of the vowed money—whether it belongs to the poor, to the donors, or is in an intermediate status. As a result, in the final week it will be possible to summarize and discuss the question of changing the designation of charity monies of various kinds (tithe monies, monies that were vowed, monies that were set aside, monies that reached the hand of the treasurer, etc. This is the topic of the next lesson, no. 12).

In the concluding lesson (no. 13) we will discuss the question of doubtful charity (and perhaps also the question of the general monetary laws in charity), which of course also depends on the issues of money and prohibition (lesson 7 or 14).

A.

Maimonides opens chapter 8, and this is his language:

Charity is included among vows. Therefore, one who says, “A sela is incumbent upon me for charity,” or “This sela is charity,” is obligated to give it to the poor immediately. And if he delayed, he has transgressed “do not delay,” for it is in his hand to give immediately and poor people are available.

And in law 2 there:

One who associates by analogy with charity is obligated like with other vows. How so? He said, “This sela is like that one”; behold, this is charity. One who set aside a sela and said, “This is charity,” and took a second sela and said, “And this one,” behold the second is charity even though he did not specify.

We learn from the words of Maimonides three laws: charity is a kind of vow with all the implications. For this reason, associative designation also applies to charity (it is a vowed matter and not a forbidden matter). There is “do not delay” for one who does not pay charity that he vowed.

However, in charity there are unique aspects compared to the general laws of vows, both in the way one vows, and in what is done with the vowed money, and in the status of the vowed money, and we will try to address them below.

When one says that charity is among vows, there is a misleading element. To the same extent one could say that going to the sea is among vows (more accurately: among oaths, since it is on the person and not on the object), for one who vows (swears) to go to the sea is obligated to fulfill his word, and so too regarding one who vows to give charity. For this we need no special law at all.

Ostensibly, one might have said that the statement that charity is among vows comes to exclude a conception that charity would be among oaths and not among vows, since one could have conceived it as an obligation upon the person to give charity and not placing the money in a special status (a law concerning the object). However, here too it seems that there is no novelty, for clearly the matter depends on the intent of the one who vows: if I swore to give money, it is among oaths, and if I vowed that this money is charity, it is among vows.

One may say that the rule that charity is among vows comes to teach us that charity, when unstated, is included among vows; that is, by default (if he did not specify his intent) this is a law concerning the object, the money itself, and not the person. But this is a completely technical determination of default intent. And regarding that one must ask: why indeed is the status of charity by default this and not otherwise? It is not plausible that this is an estimation of the actual intent of the one who vows. Further: why does the Torah take the trouble to teach us the correct interpretation of a default statement דווקא דווקא in the laws of charity vows? The Torah could have left this to the interpretation of the reasonable person and to the laws of doubts, as we do in every case where the intent of the one who vows is not sufficiently clear. From all this it seems that there is a principled dimension here, and not merely a solution to a technical problem of clarifying the intent of the one who vows.

One might further have said that the law of charity as a vow comes to teach the unique laws that exist in charity vows. For example, according to a number of halakhic decisors, the vow takes effect even in thought, and no verbal articulation is needed. Another example: according to some halakhic decisors, the vowed money changes its legal status בעקבות the vow, which does not happen in a vow merely to give money. Another example: the time when one transgresses “do not delay” is “immediately,” in the language of Maimonides (and so hold a number of decisors, as we will see below). In other vows the time depends on pilgrimage festivals and the Temple.[23]

Of course, the uniqueness of the laws of charity in itself also calls for explanation: why indeed are there unique laws? Again, it seems that the uniqueness of charity vows derives from the nature of charity even before the discussion of the laws of vows and the intentions of the one who vows.

Therefore it seems that this law of default interpretation of the “intent” of the one who vows, and the giving of unique status and unique laws to charity vows, stem from perceiving charity essentially as a vow, for clearly there is no direct estimation here of the דעת of the one who vows (perhaps his intent is to act according to Torah law, and as such there is an estimation here, but it is indirect). If so, the conception of the idea of charity shapes the status of the vowed money and the laws of vows concerning it, and not that the intent of the one who vows shapes the status of the vowed money (however, when his intent is explicitly otherwise, presumably that is effective; see the Tur at the end of sec. 257 regarding a condition in charity, and below).

We thus learn that the parameters of the commandment of charity and charity money are what determine the laws of charity vows, and not the reverse. For this reason Jewish law devotes a special place to the laws of charity as a vow, and does not suffice with the laws of vows and the laws of charity, each separately. The unique laws of charity vows also derive from the nature of the commandment (the subject), and therefore differ from the ordinary laws of vows in several aspects, as will be seen below.

The main expression of charity being a vow is that in charity vows one does not need language of vow, or a substitute term, or an abbreviated indication. It suffices for us with the statement “charity is incumbent upon me” or “this is charity,” even though in a regular vow one needs language of commitment (a vow, an abbreviated indication, or a substitute term). I have seen that this is written explicitly as well in Derekh Emunah ch. 8 subsec. 1. The explanation is that if a person says, “It is incumbent upon me to go to such-and-such a place,” there is no oath here. And if a person says, “It is incumbent upon me to eat such-and-such a thing” (or “this is incumbent upon me for eating”), there is neither vow nor oath here. In both of these cases, language of vow is needed in order for the vow to take effect. By contrast, if he says, “Charity is incumbent upon me,” this is a vow, and the basis of the matter is not because he said “it is incumbent upon me,” but because he used the term “charity.” That is, charity in its essence is a vow. A statement about an intention to give charity is itself a vow. For this reason, associative designation with charity is also effective, and it is a vowed matter and not a forbidden matter. One sees here that charity in its essence is a vow, beyond the simple law that if he vowed charity in explicit language (such as: “I hereby vow to give charity”), he is obligated to fulfill it like any vow.

This itself calls for explanation. The obligation to fulfill is not newly created here. The novelty is that there is an obligation even with language that does not include explicit expressions of vow, but only inflections of the concept of charity. If this is only a linguistic novelty, its reason is unclear. It seems that this novelty derives from an essential perception of charity as a vow, more than any other kind of commitment is not essentially perceived as a vow unless one committed to do it in explicit language of vow.

The basis of the law of charity as a vow is learned in tractate Rosh Hashanah within the topic / passage of “do not delay,” on 6a:

The Rabbis taught: “That which goes out of your lips” — this is a positive commandment; “you shall keep” — this is a prohibition; “and perform” — a warning to the religious court that they should compel you; “as you vowed” — this is a vow; “to the Lord your God” — these are sin-offerings and guilt-offerings, burnt-offerings and peace-offerings; “a freewill offering” — as it sounds; “which you spoke” — these are consecrations for Temple maintenance; “with your mouth” — this is charity.

Here charity is counted, together with vows, sacrifices, and consecrations for Temple maintenance, among the vows that must be kept (through positive commandment and prohibition) and whose performance is coerced.

See the Talmudic text Nedarim 7a, which understood that charity is compared to sacrificial vows regarding “do not delay,” and discusses whether it is also compared regarding whether there is an abbreviated indication for charity. And the practical Jewish law rules that there is.

Likewise, in Arakhin 6a it says: “Charity is like a vow with regard to ‘do not delay,’” and see there the entire topic / passage.

See also responsa of the Rashba part 1 sec. 563 (brought by Beit Yosef, Bedek HaBayit sec. 258 s.v. “and the Rashba further wrote,” and in Darkhei Moshe there subsec. 3), who wrote as follows:

For we do not say in the consecration of property for the poor that one’s verbal declaration to Heaven is like delivery to an ordinary person, since the poor are not like recipients of a gift, and a person can retract.

See there in his words that he brought proof from the Talmudic text Bava Kamma 36b (that he cannot retract only because of a transaction in the presence of the three parties), and the Rif brought that there are those who say so in the Talmudic text there and concluded not like them (from the force of the topics / passages in Rosh Hashanah that will be brought below). See also there in the medieval authorities (Rishonim) who elaborated on this.

However, one might have explained that the dispute is whether there is a vow here but no acquisition, or whether there is not even a vow at all. And it would have been possible to explain that according to all opinions there is a vow here, and the question is whether there is an acquisition. See Maharit part 1 responsum 22, who explained the Rashba explicitly in this way. And in the Rashba on Bava Kamma he brought the opinion of the Rif and nothing more; and likewise in Rosh Hashanah (as will be seen below) he wrote explicitly that there is a vow in charity. However, we will see that from the Rashba’s approach it appears that there is no acquisition for the poor, and it is like ownerless property for the poor. Therefore it seems that this is also his intention in the above responsum. Below we will see another possibility for understanding the Rashba so that he does not contradict the topic / passage in Rosh Hashanah (see the law of vow and freewill offering, section D).

In any case, we will assume below that the practical Jewish law follows the opinion that there is a vow in a declaration of charity, and regarding acquisition see below.

There are several principled discussions regarding charity vows, some of which we will discuss in the accompanying pages to come. Here we will focus on two central topics: 1. “Do not delay” in charity vows. 2. The status of the vowed money, and the possibility of changing the purpose of its use.

B.

Regarding “do not delay” in charity vows, there are several approaches among medieval authorities (Rishonim) and halakhic decisors. The basis of the topic / passage appears in the baraita on Rosh Hashanah 4a, where there appears a dispute among the Tannaim regarding “do not delay,” and it seems that the definition is equal for all the subjects under discussion:

The Rabbis taught: Those liable for valuations and appraisals, banned property and consecrations, sin-offerings and guilt-offerings, burnt-offerings and peace-offerings, charities and tithes, firstborn and animal tithe and Passover offering, gleanings, forgotten sheaves, and the corner of the field—once three pilgrimage festivals have passed over them, one transgresses “do not delay.” Rabbi Shimon says: three festivals in order, with the Festival of Matzot first. Rabbi Meir says: once one festival has passed over them, one transgresses “do not delay.” Rabbi Eliezer ben Yaakov says: once two festivals have passed over them, one transgresses “do not delay.” Rabbi Eliezer son of Rabbi Shimon says: once the festival of Sukkot has passed over them, one transgresses “do not delay.”

Charities are counted here as one of the kinds of vows, and the law of “do not delay” regarding them appears similar to the other subjects.

On the other hand, in Rosh Hashanah 6a it says:

“With your mouth” — this is charity. Rava said: and for charity one becomes liable for it immediately. What is the reason? Because poor people are standing there. Is this obvious? You might have said that since it is written in the context of sacrifices, one would not be liable until three festivals pass over it like sacrifices. Therefore it teaches us: there, the Merciful One made them depend on festivals, but here not so, because poor people are common.

It appears from the topic / passage here that there is a law of “do not delay” in charity vows, but it seems different from sacrifices, and applies immediately. The reason is that poor people are present.

And in Kehillot Yaakov, Rosh Hashanah sec. 3, he brought that there are three approaches among medieval authorities (Rishonim) in reconciling these two topics / passages:

1. The approach of the Ran, that regarding charity there is no law of three festivals, for festivals are a criterion only for matters connected to the Temple (because pilgrimage is an opportunity to pay vows to the Temple. And so wrote the Vilna Gaon on Maimonides and Shulchan Arukh). With charity, if poor people are present, one transgresses “do not delay” immediately; and if poor people are not present, one must set the money aside until three festivals, and afterward transgresses “do not delay.” If he set it aside, he no longer transgresses at all until poor people appear. According to him, the baraita deals with a case where poor people are not present and he did not set it aside, in which case he transgresses “do not delay” after three festivals (though this still requires examination: why transgress after three festivals, since it is not a matter dependent on the Temple), whereas Rava speaks where poor people are present and he must give immediately.
2. The approach of the Rashba (on Rosh Hashanah there and in Nedarim 3a), that the law of charity is like sacrifices, that one transgresses the prohibition only after three festivals, and what Rava said—that one transgresses immediately—refers to the positive commandment of “That which goes out of your lips you shall keep.”
3. And in Tosafot s.v. “and charities,” that in charity there are two laws: if poor people are present, one transgresses “do not delay” immediately, and where poor people are not present one transgresses after three festivals.

It should be noted that according to the Ran there is no obligation at all to seek out poor people even if one vowed to give charity, whereas according to the Rashba and Tosafot it seems that there is an obligation to search and find poor people until three festivals. Beyond that, according to the Ran there is a distinction between setting aside and giving, while according to the Rashba and Tosafot there is not.

However, the Rashba does not distinguish between poor people being present and poor people not being present, whereas the Ran and Tosafot do distinguish in this respect.

And the Rashba objected to the approaches that distinguish between poor people being present and not being present regarding “do not delay”: why, with sacrifices, when one is in Jerusalem or in the Temple courtyard, would he not transgress “do not delay” immediately, for there too he can give immediately without effort (as with poor people being present)?

And the Kehillot Yaakov wrote that one must investigate regarding three festivals with respect to “do not delay,” whether during that time there is no obligation at all to bring, or perhaps even during that time he is obligated to bring immediately, like any commandment whose obligation is incumbent on him without a defined time, except that if he does not do it immediately he does not yet transgress “do not delay.”

And in Kehillot Yaakov there he discusses at length the obligation to perform immediately every duty incumbent upon a person, and proved this from several medieval authorities (Rishonim). See for example Machaneh אפרים, laws of oaths sec. 15, who discusses this at length. Regarding vows we find here a dispute of Tosafot and the Rosh in Nedarim 3, about one who says, “I will not depart from the world before I become a Nazirite,” and the Talmudic text there says that he must accept Nazirite status immediately lest he die. Tosafot there explained that since he must immediately accept Nazirite status out of concern lest he die, he also immediately transgresses “do not delay,” and there is no need for three festivals.

The Rosh there explained that since he ought immediately to accept Nazirite status because of the concern that perhaps he will die, he transgresses “do not delay” after three festivals. We see that according to Tosafot, the fact that he becomes immediately obligated to fulfill his vow makes him liable immediately for “do not delay”; since with a regular vow one transgresses only after three festivals, they clearly understood that there is also no immediate obligation there (for otherwise there would also be immediate “do not delay”). According to the Rosh, this is like a regular vow, which one is obligated to fulfill immediately, and from that point the counting of the three festivals for “do not delay” begins. The beginning of the obligation marks the beginning of the counting period of the three festivals for “do not delay.”

And the Kehillot Yaakov wrote there that it seems Tosafot follows its own view in Rosh Hashanah 6a s.v. “he shall offer,” where they wrote regarding what we learned: those liable for valuations, burnt-offerings, and peace-offerings may be compelled to provide them; those liable for sin-offerings and guilt-offerings are not compelled, because since they come for atonement he does not delay them. One must discuss what case is meant: if within three festivals, then even burnt-offerings and peace-offerings should not be compelled, for the time of payment has not yet arrived; and if after three festivals, then even sin-offerings and guilt-offerings should be compelled, for he is already delaying them beyond their time. Tosafot there answered that the case is within three festivals, but we see that he is procrastinating and spending money in a way that raises concern that afterward he will have nothing with which to pay.

And if Tosafot held that within three festivals there is an obligation to bring, like a debt whose time for payment has arrived (and only “do not delay” is still absent until three festivals), it is not clear what they asked: why compel him for burnt-offerings and peace-offerings? It is proven that Tosafot holds that within the period there is no obligation at all to pay, and they proceed according to their approach.

Thus far we have seen that according to Tosafot, in vows, consecrations, and sacrifices there is no obligation at all until three festivals, and then one immediately transgresses “do not delay.” By contrast, regarding an ordinary monetary debt, we find that one must pay immediately. For example, in Bava Kamma 91 one is not given time for damages, and even regarding shame damages, where no money was diminished and the religious court gives him thirty days, the Kehillot Yaakov proved there that this is only because it is impossible to collect immediately, but the debt takes effect immediately. He likewise proved there regarding a monetary debt of one person to another (as in Machaneh אפרים, Oaths sec. 15, and see also Shakh Choshen Mishpat sec. 42 subsec. 19).

Regarding obligations of charity vows, one must investigate whether they are similar to sacrifices or to a monetary debt. It seems that this depends on whether a charity vow is considered a monetary debt to the poor or a vow to give to them, and the halakhic decisors disagree on this (see the next lesson, and lesson 7). If charity vows create a debt to the poor, and we say here that one’s declaration to Heaven is like delivery to an ordinary person, then it is like a monetary debt and the obligation properly takes effect immediately. But if we say there is no monetary debt here, or that it becomes like ownerless property for the poor but is not their property, then it is entirely possible to say that the obligation to give is only after three festivals.

Therefore it seems to say that Tosafot’s approach is that the poor have an actual acquisition in charity vows, and therefore charity resembles a debt and not consecration and sacrifices, and the obligation to give is immediate (see in Kehillot Yaakov there, who proved that Tosafot’s view regarding priestly gifts is that the priests have already acquired them immediately). Therefore the Torah warned that one who does not pay when poor people are present (and there is someone to pay) transgresses “do not delay” immediately, for Tosafot’s view is that when the obligation takes effect immediately, one transgresses “do not delay” immediately. But when poor people are not present, then even in actual monetary obligations one need not seek them out (for only in the case of one who denied and swore do we learn in tractate HaGozel that he must deliver it after him even to Media; see Choshen Mishpat sec. 73). If so, when poor people are not present he is not obligated to hasten payment except by the laws of vows and not by the laws of monetary debts, and regarding vows the determining time for “do not delay” is three festivals.

That is, the distinction between charities and consecrations is not for the reason written by the Rashba, that it depends only on the effort of bringing, for then there would be no logic to distinguish. Rather, Tosafot holds that there is a distinction because when poor people are present there is a monetary obligation and not merely an obligation of vow.

And the Rashba, who did not descend to this distinction, may be following his own view, for he holds that any consecration to the poor does not become the poor’s actual property, but rather is like ownerless property for the poor (as the Kehillot Yaakov proved there from a responsum of the Rashba cited by the Beit Yosef, Yoreh De’ah at the end of siman 160, and unlike the Rosh, klal 13, se’if katan 8, who disagrees with him).

C.

And in the Kehillot Yaakov there he continued that one may question his explanation in Tosafot: why, on the first festival during which one violates a positive commandment and becomes obligated to bring it, would there not also be the prohibition of “do not delay” — according to Rabbi Meir’s view in the topic / passage in Rosh HaShanah 4b, that one violates it on the first festival — for according to Tosafot’s view, once the obligation to bring takes effect, the prohibition of “do not delay” also takes effect immediately. And what is different from an obligation arising out of concern that perhaps he may die in Nedarim 3, or from the claim of the poor person when poor people are present?

And he explained there in the Kehillot Yaakov in the name of the Minchat Chinukh, commandment 438, that the obligation to bring on the first festival is not at all because of his vow, but rather from the laws of a sacrifice: if he has a sacrifice on a festival, he is obligated to bring it. And this is indeed proven in the Talmud / Talmudic text, Rosh HaShanah 7, which asks whether an heir must bring the sacrifice, since he is not subject to “do not delay,” because he did not make the vow (and thus we conclude that an heir is not subject to “do not delay,” as it is written “from you” — excluding an heir), or perhaps “and you shall come there,” and he is obligated by coming. And it is proven from here that the obligation of the positive commandment of “and you shall come there” is not because of the vow but from the laws of the sacrifice, that he must bring it on the festival to the Temple.

And the practical difference from this is before designation of the sacrifice (when he said it but did not designate it), for the Pnei Yehoshua proved in Beitzah 19b that in this case there is no positive commandment of “and you shall come there” on the first festival, even though if he delays it for three festivals without designation he violates “do not delay.”

We thus find that the obligation because of the vow is to designate, and afterward there are already obligations that arise from the laws of sacrifice.

However, this distinction between the laws of the object that was designated and the obligation to designate, which exists with sacrifices, requires discussion whether it also exists in charity. And in the Ran’s view above we saw that he indeed makes such a distinction: even if there are no poor people, he is obligated to designate immediately, and afterward he does not violate “do not delay.” And plainly it appears in explanation of his words that the obligation to designate even when there are no poor people is from the laws of vows, and the obligation to give the money that was designated is from the laws of charity themselves. According to this, the distinction we saw above regarding vows of sacrifices appears also in the laws of charity. However, according to the view of Tosafot that we cited there, it seems that there is no such distinction.

And these are the words of Maimonides at the beginning of chapter 8 (also cited in the Shulchan Arukh, siman 257, se’if 3):

Charity is included among vows. Therefore, one who says, “A sela is upon me for charity,” or “This sela is charity,” is obligated to give it to the poor immediately. And if he delays, he violates “do not delay,” since it is in his hand to give immediately and poor people are commonly found. If there are no poor people there, he designates and sets it aside until he finds poor people.

And if he stipulated that he would not give until he finds a poor person, he need not designate. And similarly, if he stipulated at the time he vowed charity or donated it that the collectors would be permitted to change it and convert it into gold, they are permitted.

And it appears that Maimonides holds like the Ran, that there is an obligation of designation immediately even when there are no poor people, and if there are no poor people, he does not violate “do not delay” if he designated it. However, three festivals are not mentioned in his words at all, and it implies that this applies only to consecrations and sacrifices (like the Ran’s reasoning to the end, but unlike the Ran himself). However, see Sefer HaMitzvot, prohibition 157, where “do not delay” regarding charity after three festivals is explicitly mentioned. At the end of Maimonides’ words, he also concludes from the definition that charity is a vow that one can stipulate conditions concerning it at the time of the vow.

Now, the Tur in siman 257 cited the first part of Maimonides, that charity is included among vows and one is obligated to give immediately when poor people are available, and afterward he wrote as follows:

And my master my father the Rosh, of blessed memory, wrote: this applies specifically where one designates charity without specification. But any person may designate money for charity to remain with him, to give it little by little as he sees fit, until here. And Maimonides wrote: if there are no poor people, he should designate until he finds a poor person. And if he stipulated that he would not give until he finds a poor person, he need not designate… It would appear from his words that the condition is effective only when there are no poor people. And this does not seem right. Further, why does one need a condition when there are no poor people? After all, he is under obligation only because poor people are available at every hour, and if so it is obvious that he is not obligated until poor people come his way.

The Tur understood Maimonides to mean that a condition is effective only where poor people are not available.

Now, in Kehillot Yaakov, Rosh HaShanah siman 2, he cited from Tosafot, beginning “veha-charamin” (Rosh HaShanah 4), in the name of Rabbenu Tam, that charity which one pledged to give into the hand of the collector is subject to “do not delay” from the time of giving it over to the collector, and the collector is not subject to “do not delay” in distributing it. But what a person vows while keeping it in his own hand until he wishes is not subject to “do not delay.”

And in the glosses of the Chatam Sofer (printed in the Vilna Shas) he wrote that this is similar to the beginning of tractate Nedarim: if he says, “I am hereby a nazirite when I wish,” there is no “do not delay”; and the Ran explained that since he stipulated “when I wish,” and he does not wish, so too here he vows charity when he wishes.

However, in the Talmud / Talmudic text it is explained that there are two laws of “do not delay”: one, he said but did not designate; and two, he designated but did not offer. And in the case of “he said but did not designate,” it is obvious that the condition “when I wish” is effective, for this is the setting of the time upon which he made the vow. But in the case of “he designated but did not offer,” even if he makes a condition, it is not effective, for this is like making a condition against what is written in the Torah, since an object sanctified with the sanctity of a sacrifice must be brought within three festivals, and one violates “do not delay” if he does not do so. And this is from the laws of sacrifice and not from the laws of vows, as explained above.

Now, we have not found in the Talmud / Talmudic text regarding charity whether there is “do not delay” in the case of “he said but did not designate” (when poor people are not present, for when poor people are present he is obligated to give immediately both because of the vow and because of the laws of charity). And as we saw, the Ran and Maimonides hold that he is obligated to designate immediately, and “do not delay” applies to him also in the case of “he said but did not designate.” If so, it appears that the law of charity is like the law of sacrifices: a condition that “I will not designate except when I wish” is effective in “he said but did not designate,” but not effective in “he designated but did not give,” because of the laws of charity that apply here.

However, it appears that although the distinction between the two stages also exists in charity according to those medieval authorities (Rishonim), there is still a difference between the laws of charity and the laws of sacrifice, which are what obligate at the second stage (and not the laws of vows, as explained above). For in the laws of sacrifice, from the moment it is consecrated, all the laws of sacrifice and the order of its offering apply, and they do not depend at all on his intent. But in charity, he can vow in any manner he wishes. For example, if he vowed to give to a particular poor person, he must give specifically to him, and therefore when that person is absent it is like there being no poor people available (see Rema, siman 257, se’if 3, and Machaneh Efraim, Charity, siman 2). According to this, it appears that when he says, “This is charity when I wish,” it is like attaching it to that poor person whom he wishes to give to.

However, the Kehillot Yaakov brought that all this is according to the explanation of the Chatam Sofer in the Ran. But the Ran himself in our topic / passage explicitly explains that when one says “when I wish,” it is effective because he himself is the collector to distribute the money, and a collector does not violate “do not delay,” as is stated explicitly in Rabbenu Tam. However, the Ran there used language that implies “do not delay” also applies to the collector, and these are his words there:

And he answered: since we vow according to our understanding, and if we had transferred it to the treasurer, the one who vowed would thereby be exempt, for what more is there for him to do? And the treasurer, if he were to wait until worthy poor people came, or if he distributed it little by little, does not transgress. We too, for this reason, need not be concerned if the one who vowed delays them, because we vow with the understanding that the one who vowed himself shall be like a treasurer to distribute it according to his own judgment.

And it implies that even the treasurer does not violate “do not delay” only if he delays a little, or waits for worthy poor people. But if he simply delays, then he violates “do not delay.” And this requires investigation, for what difference is there between a treasurer and an heir, after all, he himself did not vow?[24]

And the Kehillot Yaakov explained that “transgresses” in the Ran means theft, not “do not delay.” The discussion is whether he transgresses by stealing the poor people’s money (see for example Mishnah Pe’ah 5:6, and Pe’ah 4:9). And the Ran determines that when the collector delays the charity for a purpose that is not for the benefit of the poor, he transgresses theft.

However, according to this there is a major practical difference between the explanation of the Chatam Sofer and the explanation of the Ran: according to the Chatam Sofer, he can in principle never give, because if he never wishes, he is not obligated to give.[25] Whereas according to the Ran himself, he is obligated to give at the time when the considerations require it.

And the Shakh, siman 257, se’if katan 8, cited the Mordekhai who disagrees with Rabbenu Tam and wrote that where one vowed to give to the poor, to whomever he wishes, he violates immediately, since poor people are present. And one cannot say that he does not violate because he can say that he does not want to give to these but to others who will come, for if so, by this he would exempt himself forever.[26]

And the Kehillot Yaakov concludes that we need both the reasoning of the Chatam Sofer and the reasoning of the Ran himself, for the Ran’s own reasoning applies only in the case of “he designated but did not give,” because only then can one say that he himself is like a collector. But in the case of “he said but did not designate,” one cannot say that he himself is considered like a collector, since the money was not designated at all. If so, when he stipulated “when I wish,” he would become liable under “do not delay” from the laws of designation and not from the laws of giving. Rather, we are forced to say like the Chatam Sofer in addition to the Ran.

And the Minchat Chinukh in commandments 574–575 asked concerning the Ran and Maimonides: why must he designate? After all, if a poor person is before him, he must give to him, and if no poor person is before him, he need not go looking for one and give to him (unlike the above view of Tosafot that after three festivals he is obligated to seek out poor people, for otherwise he violates “do not delay”). If so, why must he designate? However, the Ran learned from sacrifices that at least one must designate, but the Minchat Chinukh asks that this has no rationale. With sacrifices, the offering must be done after consecration, and therefore there is a meaningful stage of designation; but with charity, the Minchat Chinukh argues, what practical difference does designation make?

It must therefore be said that according to the Ran and Maimonides, they learn from sacrifices that designating charity is like designating and consecrating a sacrifice, that is, it has monetary consequences. After designation, the money is the poor people’s money, and this itself is part of the giving and fulfillment of the vow. The practical difference is for an heir, who would need to give it to the poor even though he himself did not vow, since it is their money. And other practical differences are possible, such as a poor person who seized it, or whether he can defer a poor person and say that he currently does not have to give him, because he wants to give to others (and this is not forced in either direction: it may be that he can defer him even now, and it may be that he cannot defer him even if he did not designate).

And see the Radbaz, chapter 8, halakhah 1, who wrote that the designation is rabbinic, in order that he have money when poor people come; but this is strained. And certainly in the Ran this is strained, for the Ran wrote that there is a prohibition of “do not delay” on one who did not designate until three festivals (and also in Maimonides it implies that he violates “do not delay” immediately). And it is proven that designation is an obligation from the laws of the vow, and it is Torah-level.

However, the Tur, siman 257, disagrees and rules that one need not designate when there are no poor people.

D.

We saw above that in the responsum of the Rashba, part 1, 563, and in the Rif to Bava Kamma 36b, opinions are cited that there is no vow at all in charity. This is very difficult in light of the Talmudic passages in Rosh HaShanah, especially since the Rashba himself in Bava Kamma and in Rosh HaShanah assumes as a simple matter that there is a law of vow in charity.

And above we wanted to say that the Rashba’s intention is that there is no acquisition but there is a vow; but in the Beit Yosef who cited his words, it appears that they understood him to mean that there is no vow at all in charity. If so, the above difficulty from the passages in Rosh HaShanah and Bava Kamma remains.

And it appears that there is room to distinguish between a vow and a donation (and so too in the book Tzedakah U-Mishpat, siman 376). His claim is that when one says in the language of a vow, “This is charity,” it takes effect by the law of vows; and when he says in the language of donation, “Charity is upon me,” it does not take effect, for speech to Heaven in charity is not like transfer to a layman, that is, there is no acquisition here, and there is also no vow here, since it was not said in the language of a vow.

And so too this appears from the language of the Rashba in that responsum, where he discusses speech to Heaven as like transfer to a layman; and that applies to a donation and not to a vow (see lesson no. 12), and this is not the place to elaborate.

And see Maharit, part 2, Choshen Mishpat, siman 124, who wrote that according to the view of Nachmanides and the Rashba, in a donation there is no “do not delay” at all, but only in a vow. And it implies that in a donation everything works by the law of speech to Heaven, that is, an acquisition to the poor. However, in Maimonides at the beginning of chapter 8 and in Shulchan Arukh siman 257, it appears that they did not distinguish. See further lesson 12 below.

For the difference between vow and donation regarding liability for charity, see Tzedakah U-Mishpat, sections 404–405.

Regarding differences in the law of changing charity, see lesson 12.

Charity as a vow: “Do not delay” in charity

In this topic every point is very broad, and bound up with matters of monetary law and vows that would require very extensive discussion. Therefore, we will focus mainly on several principal points that directly concern our issue, and we will try in the lessons (11 and 12 — and perhaps also 13) to address the main analytical points around it.

Main sources

Tur and Shulchan Arukh siman 257, se’ifim 3–4, and siman 258. Maimonides chapter 8, halakhot 1–5

Main points for expansion

Charity as a vow, and “do not delay” in charity

See lesson 11 at length.

Note that there is no difference between the vow “this is” and the donation “it is upon me.” See the above lesson.

In the Vilna Gaon, se’if katan 6, he wrote that the Shulchan Arukh follows the view of the Ran and not the Rashba and Tosafot, that there is no matter of three festivals regarding charity. However, Maimonides also used this very language (and he is the source of the Shulchan Arukh), and nevertheless in prohibition 157 he wrote that one violates after three festivals. And see the commentators on Maimonides. Also see lesson 11, where we saw also in the Ran that there is a matter of festivals even regarding charity (when poor people are not present and he did not designate, he violates “do not delay” within three festivals).

And in the gloss of Maharsha here he cited the Rashba’s question that was discussed in the lesson (see Kehillot Yaakov, Rosh HaShanah siman 3).

See in the Frankel index many discussions regarding the modes of annulment, and whether he can retract within the span of speaking.

Annulment

In Rema 258:1 he wrote that it is permitted for him through regret like any other vow. And in Shulchan Arukh se’if 6 he wrote that he should ask a sage and he will permit it. And Radbaz, part 4, responsa nos. 1204–1234, wrote that it is not proper to permit because of loss to the poor, and the sage who permits should be excommunicated. However, he wrote that after the fact the vow is permitted. And Ralbach siman 4 wrote that it is not proper to regret a true matter and service of God.

And with a vow in time of distress they were stricter. See Rema, Yoreh De’ah siman 228, se’if 45. And in the Shakh there it implies that even after the fact it is not permitted, whereas in the Rema he simply wrote that after the fact it is permitted. And regarding the annulment of vows on the eve of Rosh HaShanah, see the references in Tzedakah U-Mishpat chapter 4, note 21.

After it has come into the hand of the collector, the Shulchan Arukh wrote in se’if 6 that one may not seek annulment regarding it (and see below regarding retraction within the span of speaking).

Obligated to give immediately

Three possible explanations: 1. By the law of a vow. 2. By the law of the status-name “charity.” 3. The money belongs to the poor.

The first two possibilities came up in the lesson, and the last will be discussed in the next lesson.

A condition in vows of charity

The Tur understood Maimonides to mean that a condition applies only where poor people are not present. See Radbaz here, and see the responsum of Radbaz part 2, siman 698, and the Beit Yosef and Bach. See also Divrei Yechezkel siman 13, se’if 17.

And see also the writings of Rabbi Yitzchak Zev Soloveitchik on Arakhin 6a, beginning “This sela is for charity.”

To be careful not to vow

Regarding Yizkor, see Derekh Emunah chapter 8, se’if katan 1. Regarding a vow of charity on the Sabbath or Jewish holiday, according to the views that in this way it is acquired by the poor, there is a problem of acquisition on the Sabbath. Therefore it is good to say “without a vow” also for this reason. However, it seems that when he does not vow a specific thing (“this is”), it is permitted. See Magen Avraham, Orach Chayim siman 306, se’if 6.

Heirs

Rema 258:5. And see Tzedakah U-Mishpat chapter 4, laws 28–30 and the notes there.

And it depends on whether the money already belongs to the poor, for then perhaps it must be given to whomever the father saw fit. However, it may be that their right of benefit is that they inherited it from him, and therefore they may give it to whomever seems fit to them.

And see Rema, Choshen Mishpat siman 209, se’if 7, who wrote that the heirs are under no obligation. And see the Sema and Derishah there, who discussed whether this is only with a person on his deathbed or with anyone, and whether it is different when the heirs heard and remained silent or not.

And see in Tzedakah U-Mishpat chapter 4, note 70, who wrote to distinguish between a case where the father told the heirs to give and a case where he accepted it upon himself but did not manage to give. And this requires further analysis: whether in the case where he obligated himself but did not manage to give, the obligation on the heirs depends on the dispute among the medieval authorities (Rishonim) that we saw in lesson 11, whether there is an obligation to give immediately or only after “do not delay” takes effect; see there. For if there is no obligation to give immediately, why should an obligation arise upon the heirs when he died? And there is further room to distinguish between “he said but did not designate” and “he designated but did not give”; see the lesson there (and in the above-mentioned book, note 73).

A vow in one’s heart

Rema 258:13 — two opinions. And see Shulchan Arukh, Choshen Mishpat siman 212, se’if 8, two opinions on this. And see also Shulchan Arukh, Orach Chayim 562:2.

See Magen Avraham, Orach Chayim 562, se’if katan 11, regarding vows of fasting, where he distinguished between one who accepted in his heart and one where it was in his heart. And it appears that the same applies here: only if he decided in his heart to give is he obligated to give; but if he merely thought of giving, he is not obligated.

And see Pitchei Teshuvah, se’if katan 15, and the gloss of Maharsha (also regarding vows of fasting like vows of charity).

According to most opinions, vows of fasting are like vows of charity. However, the Taz, Orach Chayim there, se’if katan 8, distinguishes between them. And see responsa Beit Yitzchak, Yoreh De’ah part 2, siman 82.

And in the above-mentioned Beit Yitzchak he wrote that even according to the opinions that a vow of charity takes effect in thought, its law is not like vows of charity made verbally, which are acquired by the poor through speech. A vow in thought is only like a vow, and there is no monetary lien to the poor in it; the practical difference is that he can change the purpose of the money. And so too wrote responsa Beit Shlomo, Yoreh De’ah part 2, siman 109. Another practical difference is that one may seek annulment of this vow (for if it is a monetary acquisition and not merely a vow, one cannot seek annulment regarding it).

And see in the Rema, who wrote that when he said it with his mouth we compel him, implying that when he vowed in his heart we do not compel him. And see the Vilna Gaon here, who was uncertain about his intent. And it may be that his intent is that in the heart there is no acquisition for the poor, and therefore the laws of compulsion do not apply (see lesson 3, that compulsion in charity depends on acquisition). If so, this is proof for Beit Yitzchak and Beit Shlomo above.

However, in responsa Chatam Sofer, Yoreh De’ah siman 243, he emends the words of the Rema and explains his intent to be that if the one who vowed said that he thought in his heart to give charity, we compel him to fulfill it (for if he did not tell us, how would we know that this was in his heart?).

Retraction within the span of speaking

See siman 258, se’if 6, regarding retraction in general. And in Sema, Choshen Mishpat siman 255, se’if katan 14, he cited from the Levush that he cannot even retract within the span of speaking, because speech to Heaven is like transfer to a layman. According to what we explained in lesson 12, one should distinguish here between the language of a vow (“this is”), which does not involve acquisition, and the language of a donation (“it is upon me”), which does involve acquisition. See there in Shakh se’if katan 5 and Ketzot HaChoshen se’if katan 2, and in Pitchei Teshuvah here (258) se’if katan 7, and Machaneh Efraim, Charity, siman 8.

However, from most halakhic decisors it appears that if he seeks annulment of his vow, it is permitted (see here se’if 6), unless it has come into the hand of the collector. This is difficult according to those who say that speech to Heaven is like transfer to a layman. Yet again one can distinguish between vow and donation. Furthermore, the Shakh here, se’if katan 4, wrote that we permit it only with an opening, for then from the outset the vow never took effect and the acquisition too was by mistake, and according to this it is well understood. However, see Shakh, Choshen Mishpat siman 255, se’if katan 6, that it is permitted even through regret, and this requires investigation (perhaps the distinction is between vow and donation).

And in Shulchan Arukh se’if 6 it is stated that once it has come into the hand of the collector, seeking annulment is no longer applicable. And in Shulchan Arukh, Choshen Mishpat siman 125, se’if 5, and in the Sema and Shakh there, it implies that even when it came into another person’s hand he cannot seek annulment. See there in the Tumim, se’if katan 8, who questioned this, and in Ketzot HaChoshen se’if katan 2.

However, the second edition of Noda B’Yehuda, Yoreh De’ah siman 154, elaborated in proving that according to most halakhic decisors, inquiry is effective even when it came into the hand of the collector. However, he too admits that in the responsum of the Rashba, part 1, siman 656, it is proven otherwise.

And there are two directions to explain the law of “it came into the hand of the collector”: either the vow has been fulfilled, and now one may not seek annulment regarding it (Chatam Sofer, Yoreh De’ah responsum 243), or the poor have already acquired it (Avnei Nezer, Yoreh De’ah siman 290).

Asmakhta

Shulchan Arukh 258:10. And see Choshen Mishpat siman 207, se’if 19.

And see Nekudot HaKesef here.

And some wrote that regarding an asmakhta, according to all opinions inquiry is effective (Ralbach siman 4, Avnei Nezer Yoreh De’ah 297), and perhaps even when it came into the hand of the collector (Avnei Nezer Yoreh De’ah 290).

Lesson number 12:  The legal status of charity money

A.

Regarding changing the designation of charity money, there are two main issues: theft, as a result of taking the poor people’s money, and violation of the vow. Beyond that, in a case where the new designation is not considered charity, there is of course the dimension of not fulfilling the commandment of charity.

Therefore, first we must discuss the status of charity money from a monetary perspective. When, if ever, is it considered the poor people’s property? And in light of this, what is the status of the collector (agent of the poor or agent of the donors)?

For the purpose of examining the legal status of the money, one must distinguish between different situations that arise in charity.

1. When some poor person asks me for charity and I respond to him, then before he asked, the money is mine, and after he asked, the money is his.
2. When a collector asks me for charity for some purpose, or for the communal fund, then before I gave him the money it is mine, and after I gave him the money it belongs to the fund. Of course, the status of money in the fund requires discussion. However, when he assesses charity upon me (or a religious court authorized for this does so), this is a different situation, and this is the topic discussed in lesson 3, regarding compulsion for charity (whether we descend to the assets, and why).
3. When I decide (verbally, or in thought, and we saw in the accompanying pages that there may be a difference between them) to give charity and I still have not designated it, the status of the money requires discussion. It should be noted that in such a situation the money is still undefined. This is the situation of money vowed to charity.
4. When I decided and designated it but it is still with me (set aside).
5. When I decided and designated it and the money was given over to the fund. Plainly, in such a situation the law of the money is like the law of money in the fund, for that is what it was intended for. If so, its status is like in paragraph 2. It should be noted that money in the fund is certainly no worse than money that was vowed and designated, for the money was certainly designated, at least by the very act of giving it to the collector. However, if it was not vowed, there would have been some room to say that its status is worse (it is more the donor’s). But this cannot be, for if we say that it is the poor people’s money after it was vowed and designated, while money that is in the fund is still considered the donor’s, then an absurdity would arise: when money after designation is given to the fund, it would revert to being the donor’s.
6. A third of the shekel, the tithe of money, or a fifth, for one who has the practice of giving it (which requires no decision at all, for this is an established practice on an ongoing basis; a tenth of my assets is designated for tithing). The status of the money requires discussion, though it is not specific since it has still not been decided upon or designated, yet it stands for that.

In all these cases, one distinguishes between situations in which there is a defined poor person standing to receive the money (it is designated for him), and situations in which there is no defined poor person (in which case the money is designated for someone from among the class of poor people). In the second case it is clear that the discussion is whether the money belongs to the class of poor people or to the donor or is in some intermediate status. In the first case one must discuss whether it belongs to the concrete poor person before me, or to me, or perhaps to the class of poor people, which is the candidate to receive it.

The foundation of the discussion is a law that exists with consecrated property: speech to Heaven is like transfer to a layman. That is, a statement about some item that it is consecrated constitutes its conveyance to the Temple treasury (without an act of acquisition). In charity too there are opinions that this rule exists, and therefore the statement itself — which in charity is a vow — transfers the money to the poor. The discussion here has a legal component: whether there is indeed power to transfer charity money without an act of acquisition. In addition, there is also a halakhic / of Jewish law component: whether this is indeed what Jewish law requires to be done, or says was done.

When the money is transferred to the fund, or to the collector, it is easier to see how it becomes the poor people’s money, since the collector can acquire it on their behalf, and then there is an ordinary conveyance here. Here the discussion is only what exactly the collector and donor need / want to do (the halakhic / of Jewish law component). The legal component, concerning the power to transfer to the poor, raises no problem here, for certainly they have the power to do so.

B.

Let us begin with the legal discussion: does the law of speech to Heaven as like transfer to a layman indeed exist in charity?

This law, regarding consecrated property, can be interpreted in several ways:

One can say that the very status-name of consecrated property determines that the money belongs to consecrated property. That is, this is from the laws of consecrated property and not from the laws of vows, and also not from the laws of acquisitions. According to this conception, the statement imposes on the money the status-name of consecrated property, and the laws of consecrated property determine that it is property of the Temple treasury. The act of transfer is done in stages. In a situation where consecration is not possible, although there is no impediment to transferring, there would also be no transfer.

One can say that the statement is itself the conveyance (these themselves are the matters acquired by speech), from the laws of acquisitions. Here it does not work in stages; perhaps just the opposite: the money is acquired by the Temple treasury through the statement, because the laws of acquisitions determine that one can transfer to consecrated property through speech, and automatically it becomes holy.

[And one can say that this is from the laws of vows. Vows of consecrated property mean an act of conveyance.]

On this discussion the later authorities (Acharonim) elaborated: whether with consecrated property the money determines the prohibition or vice versa (see for example Kovetz Shiurim of Rabbi Elchanan Wasserman, simanim 52–56, regarding consecration and regarding misuse of consecrated property, and more). A practical difference, for example, is whether consecrated status takes effect on less than a perutah’s worth, and many other matters.

And it appears that the foundation of the discussion lies in the sources of the law of speech to Heaven as like transfer to a layman. The law itself appears in Kiddushin 28b. And in the Jerusalem Talmud, Kiddushin chapter 1, halakhah 6, they brought that this is because it is written, “The earth and its fullness are the Lord’s.” And they explained the intent to mean that since he said to give to consecrated property, the Temple treasury immediately acquires by the law of his guarded courtyard according to his will (see Meiri to Kiddushin there).

However, among the medieval authorities (Rishonim) we find other reasons. Rashbam in Bava Batra 133b wrote that this is because it says, “And a man who consecrates his house as holy,” meaning that immediately when he consecrates, it becomes holy. And in the commentary of the Rosh to Nedarim 29b, he explained that since this is a vow, he cannot retract, and therefore it is immediately acquired. And seemingly the same should apply to any vow to give money to someone — it should be immediately acquired by him.

Now, according to the Jerusalem Talmud it seems clear that the discussion begins from an acquisition to consecrated property, and the sanctity takes effect afterward. However, from Rashbam it appears that this begins specifically with sanctity, and from that it also becomes the acquisition of consecrated property. And in the Rosh, seemingly it appears that this begins from the laws of vows, which impose on it an acquisition (because he cannot retract by the laws of vows), and the sanctity takes effect afterward. However, according to this it would seem that the same should apply to every vow to transfer to another person, and this we do not find. Therefore, it appears that in the Rosh one should say that the vow does not allow him to retract, and therefore the sanctity takes effect, and automatically the acquisition to consecrated property also takes effect. If so, the acquisition to consecrated property takes effect by the laws of sanctity and not by the laws of vow nor by the laws of acquisition. According to this, it is clear that one who vows to give money to another person does not transfer it without an act of acquisition.

Now, we found a dispute among the medieval authorities (Rishonim) regarding charity, whether we say in that context “speech to Heaven is like transfer to a layman” or not. So wrote the Rif, Bava Kamma 36b (18b in his pagination), and Tosafot there (beginning “yad aniyim”), and Ran Nedarim 29; and see also Rema 258:13. See there in the Rema, who distinguished between thought and speech regarding compulsion, and we saw in lesson no. 3 that compulsion in charity is because this is the poor people’s money. And so too regarding consecrated property they distinguished thus; see for example the Talmudic Encyclopedia, entry “Hekdesh,” and entry “Matters in the heart.”

However, in the “yesh omrim” in the Rif there, and likewise in the Ba’al HaMa’or there, and in the responsa of the Rashba 656 and 563, they wrote that in charity there is no law of speech to Heaven. And see responsa of Rabbi Akiva Eiger siman 144 on this (and the beginning of the matter before siman 142 there).

Most of the medieval authorities (Rishonim) brought as the source for their words Rava in Rosh HaShanah, that one violates “do not delay” immediately (see the beginning of lesson 11), and the exposition of the verse “with your mouth” — this is charity (see there). And it appears that their foundation is from the comparison to consecrated property that exists in this verse.

And it appears that the root of the dispute is in the source of the law of speech to Heaven. For if the source of the law is the law of acquisition by courtyard for the Temple treasury, charity cannot acquire in that way, since there is no acquisition to Heaven here. But if the source of the law is that the consecration imposes an acquisition by the laws of consecrated property, then from the comparison of charity to consecrated property one can learn that the laws of charity are also such that the status-name “charity” imposes ownership of the poor. And according to the Rosh it would seem that anything from which one cannot retract is already acquired and standing; but in light of our explanation above, it may be that this is a special law in consecrated property. In any case, however, it appears that it does not begin from acquisition, and therefore there is room to say that this law applies also in charity.

According to what we have said, it emerges that even according to the opinion that in charity we say “speech to Heaven is like transfer to a layman,” this begins from the prohibition and passes to monetary ownership, with all the practical differences that follow. In charity there is no place for Rabbi Elchanan Wasserman’s investigations.

There are several practical differences regarding the question whether there is here only a vow or also an acquisition:

1. Whether the vow can be annulled. If the acquisition takes effect, it appears that one cannot annul the vow. However, an opening would help, since it is proven that the giving was in error (see the previous accompanying pages).
2. When the one who vowed dies and the heirs do not pay.
3. When the poor person dies and his heirs demand the money.
4. Whether one may change the purpose of the money.

And in the book Machaneh Efraim, Laws of Charity, siman 2, he discusses this at length and distinguishes between a vow and a donation. A vow is the statement “Charity is upon me,” and a donation is the statement “This is charity.”

And he wrote there to infer from the Rif that a donation to a specific poor person creates an acquisition. However, in Maharit part 1, siman 22, he wrote that when the Rif said “the poor acquired it,” he intended to say that this is a vow from which he cannot retract without annulment of vows. See there in Machaneh Efraim (and in siman 7), who cited many more medieval authorities (Rishonim) who ruled this way.

However, according to this it requires explanation: how can one seek annulment of vows of charity, for the money is already in the poor person’s hands? (See Shulchan Arukh siman 258, se’ifim 6 and 8.)

And in Ketzot HaChoshen siman 290, se’if katan 3, he wrote that since the acquisition is not done by an act but by speech, speech comes and cancels speech. And of course this depends on the question whether speech cancels the legal effect that was created or the speech that created it (and this depends on the Shitah Mekubetzet in Nazir 11; and see Kovetz Shiurim, Ketubot sec. 168, and in my lectures on Gittin on chapter 7 regarding the laws of conditions, section E — mechanisms of conditions — where I explained that the above-mentioned Shitah Mekubetzet is like Ketzot HaChoshen here, and this is not the place to elaborate).[27] According to this, in Shulchan Arukh siman 258 above they are dealing with charity in the hand of the collector, and there there was an act of acquisition, and therefore inquiry is not applicable.

And from Machaneh Efraim siman 2 it appears that one can seek annulment only for a vow and not for a donation. In a donation the money is acquired by the poor, and in a vow it is like an ordinary vow. According to this, there is room to say that for a donation to a specific poor person one indeed cannot seek annulment; only for a donation to an unspecified poor person can one seek annulment.

And regarding an unspecified poor person, Machaneh Efraim wrote in the opinion of the Rif that even in such a case this becomes the poor people’s money. However, the Rosh disagrees, and so he brought from other authorities there. And this requires investigation: how can a statement in charity be stronger than a full acquisition to a layman, when we do not find an acquisition to an undefined entity?

Seemingly, it appears that here the intent is an acquisition to the class of poor people (= the consecrated property of the poor), and not to any specific individual.

Machaneh Efraim in siman 2 raises another possibility, that this is not money acquired by the poor but ownerless property for the poor.

And perhaps there is yet another possibility. In responsa of the Rema, siman 31, he innovates that the city collector acquires full acquisition on behalf of the poor of his city, even if they are not specified. And similarly wrote Chavot Da’at, Yoreh De’ah siman 160, letter 10. That is, they innovate that there is acquisition for an unspecified poor person, but the acquisition is for a specific poor person who will become clarified retroactively (there is retroactive clarification for this purpose). According to this, one could say the same also regarding vows of an individual to unspecified poor people. However, according to this, the acquisition is done through a collector, and when there is an individual who vows and does not give to a collector, it must be said that he himself stands in the place of the collector (see lesson 11, in the Ran’s view in Rosh HaShanah, where he explained this regarding individual vows made on condition).

And see Chelkat Yo’av, Yoreh De’ah siman 21, who suggested another direction.

It should be noted that according to the Rif there is no difference between a specified poor person and an unspecified poor person, and therefore it is clear that there is also acquisition to the class of poor people. Therefore, according to his view one must discuss whether when a specified poor person stands before him, the acquisition is still to the class of poor people, except that by the laws of charity (Yoreh De’ah) he must give specifically to him, or perhaps in such a case the ownership is personal to him and not to the class.

According to the Rosh, who says that there is ownership only in a situation of a specified poor person, it stands to reason that he does not recognize the concept of ownership by the class of poor people, and therefore there is ownership only in a specified poor person. According to this, in the case of a specified poor person, the ownership is his personally.

However, according to Chavot Da’at it appears that even according to the Rif the ownership is always personal, and there is no concept of ownership by the class of poor people. The difference is only whether one needs to resort to the concepts of retroactive clarification, or whether the ownership is clear from the outset. According to this, according to all opinions there is no ownership by the class of poor people.

Regarding a specified poor person, one must discuss this by the laws of the “recognized gifts to priests” (see lesson 6), and it appears that the same law will apply in both cases.

So much for donation. Regarding a vow, Machaneh Efraim wrote (in siman 2) that the Rif agrees that there is no acquisition to the poor. Maharam of Rothenburg, cited in Mordekhai Bava Kamma, chapter HaGozel, siman 172 (see Shakh Choshen Mishpat siman 87, se’if katan 51), and Radbaz part 4, 134, disagree. However, it may be that the Rif is speaking of an unspecified poor person, whereas Radbaz and Maharam are speaking of a specified poor person.

And practically, one must discuss whether this is the poor people’s money or not.

In the Beit Yosef, Choshen Mishpat 125, se’if katan 6, beginning “And that which he wrote, ‘And if the recipient is poor,’” he wrote that regarding charity, which is the property of a layman, we do not say “speech to Heaven is like transfer to a layman.” And in Shulchan Arukh, Choshen Mishpat siman 212, se’if 8, he wrote that nowadays all consecrated property has the law of ordinary property (see also there siman 95, se’if 1, and 125:5 and 243:2).

However, in the Rema the contradictions on this issue are numerous (as noted in responsa of Rabbi Akiva Eiger 146, and see also Yoreh De’ah 258:5 and 13), and his opinion on this requires investigation. See Nikdash Bi-Tzedakah chapter 18, note 34. And see there note 35, where he pointed also to contradictions among the later authorities (Acharonim) on this issue (in Ketzot HaChoshen and in the Shakh). And see the introduction to the book Nikdash Bi-Tzedakah, where he brought comments of Rabbi Avraham שפירא on this, and in the accompanying pages to the next siman.

And the Sema and Tumim concluded that there is no acquisition, while in the above-mentioned Machaneh Efraim and Netivot HaMishpat (in the explanations to siman 250, se’if katan 4) they wrote that a vow does not create acquisition but a donation does. Therefore, practically it appears that in a vow (“it is upon me”) there is no acquisition, and in a donation it is doubtful, and one should be stringent.

Regarding the tithe of money, it appears that it is not the poor people’s money. However, if indeed giving the tithe is considered a vow (see lesson 4), then there is room to say that it falls under the category of money vowed to charity, and according to the view that such money is acquired by charity, there is room to regard it as acquired.

However, one should note that this is a vow and not a donation, and therefore there is room to doubt whether this is the poor people’s money, as explained above.

And we saw in the case of a specified poor person, regarding the “recognized gifts to priests” (see lesson 6), that there are opinions that the money belongs monetarily to the one recognized, and therefore, if he regularly gives his money to a fixed poor person there is room to say that it is acquired by him. However, if he does not give to a fixed poor person, it appears that it is not the poor people’s money, or at least it is doubtful. And perhaps one who vows to fulfill the commandment of tithing money is different from one who vows to give money. The latter vows to designate money for charity, and the former vows to fulfill a commandment that consists of designating money for charity. I later saw in Tzedakah U-Mishpat chapter 9 note 3, beginning “And according to my humble opinion,” what he brought from Maharam Shik and others, that according to all opinions the money of the tithe is not acquired by the poor, and perhaps there is not even a prohibition of vow in it; see there.

C.

Until now we discussed the status of money that was vowed. As for money that was designated, it appears that this depends on the disputes we brought in the previous lesson. According to the view of Tosafot in Rosh HaShanah there is no concept of designation at all, and so too for the Rashba, and thus the Minchat Chinukh also assumed (as cited there). According to this, the entire discussion is only about the meaning of the vow, as explained.

However, according to the Ran and Maimonides we saw that there is a law of designation, which according to the Radbaz (chapter 8, halakhah 1) is rabbinic so that he will have money to give to the poor; and we rejected his words (at least in the Ran, and perhaps also in Maimonides), since the law of “do not delay” applies to the designation. And most commentators on Maimonides and Shulchan Arukh (siman 257, se’if 3, and in the Rema there) explained not like the Radbaz. If so, it appears that according to Maimonides too there is a law to designate (and according to the Ran certainly so). And we explained that the designation is giving and fulfillment of the vow when there are no poor people (for otherwise one could ask: why designate? — as the Minchat Chinukh asked). Since this is so, it appears that before designation there is only a vow, and after designation there is actual poor people’s money. It should be noted that Maimonides speaks both of one who says “it is upon me” and one who says “this is,” and it follows that according to Maimonides, both in vow and in donation, the designation transfers them to the poor, but before that they are not acquired.

If so, we concluded above that practically, in a vow there is no acquisition, and in a donation there is doubt whether there is. Now we see that after designation there is acquisition in both according to Maimonides, and so the law appears (the Shulchan Arukh copied the words of Maimonides, and see there in the Rema).

D.

And now we must discuss what the status is of the money in the fund, or with the collector.

And it appears that the medieval authorities (Rishonim) disagreed about this in Nedarim 65b. From the words of the Rosh there it appears that the money belongs to the donors, so long as it has not reached the poor. For in the Talmud / Talmudic text there, the Rosh explained that if one forbade his fellow to derive benefit from him, they open an avenue for him by asking him whether perhaps his fellow will become poor and require support from him. And the Talmud asks why this is an opening, for in such a case he can give to the collector, and the collector will support him. And it is proven that money in the hand of the collector belongs to the donor. However, the anonymous commentator there explained that that person will say that if the one forbidden to benefit becomes poor, others will support him. And it implies that when he gives to the collector, there is in that an act of giving to that one forbidden to benefit.

And from this case it appears that according to the Rosh this applies even regarding a specified poor person, for the case is that that person will become poor, and the money is designated specifically for him.

And the Ran there disagrees with the Rosh and holds that the money has left the owner’s domain, but it is not clear to whom it belongs. And it appears clear that it does not belong to the poor person, for the Ran writes that the collector can give it to another poor person. And his words may be explained similarly to what we saw above regarding one who vowed and needs to designate: 1. ownerless property for the poor; 2. acquired by the poor person although unspecified (like Chavot Da’at, Yoreh De’ah siman 160, se’if katan 10, and similar to responsa of the Rema, siman 31); 3. acquired by the community for the needs of charity; 4. acquired by the consecrated property of the poor.

And what appears likely is possibility 2 or 4, since the Ran’s own view is that there is consecrated property of the poor; and the proof is that he himself obligates one who vowed to designate the money when there are no poor people, and we proved that his intention is that the designation is fulfillment of the vow, that is, it transfers the money to the poor (to the class of poor people).

And so too this is proven from Rabbi Yonatan cited in Shitah Mekubetzet, Bava Kamma 93b, beginning “And Rabbi Yonatan wrote.” And so too wrote Machaneh Efraim in the view of Maimonides (Charity siman 2 and siman 10; and this requires investigation from Laws of Oaths siman 16). And so too wrote the second edition of Noda B’Yehuda, Choshen Mishpat siman 50 (cited in Pitchei Teshuvah siman 258, se’if katan 9).

And Avner Cohen asked that this is difficult from the view of the Rosh, who according to the above-mentioned Machaneh Efraim holds that there is acquisition to the poor in a donation to a specified poor person, whereas here it would emerge that money in the fund belongs to the owners. And we mentioned that there is an a fortiori argument that the status of money in the fund is certainly more the poor’s than after designation or vow. And this requires investigation.

The implication of this dispute is whether one can seek annulment concerning money in the hand of the collector. It is clear that the above-mentioned mechanism of Ketzot HaChoshen siman 290 does not help here, since here the money is in the fund after an act of acquisition to the collector (and therefore it is not relevant to say that speech cancels the acquisition). Therefore it is understandable what the Shulchan Arukh wrote in siman 256, se’ifim 6 and 8, that one cannot seek annulment regarding money that has reached the hand of the collector. And his source is the Rashba’s responsum 656 (also cited by the Shakh, Choshen Mishpat siman 125, se’if katan 27), who explains that the collector truly acquires on behalf of the poor, like terumah in the hand of a priest, regarding which one can no longer seek annulment.

However, the second edition of Noda B’Yehuda, Yoreh De’ah 154, brought that there are those who disagree with the Rashba regarding terumah (and hold that one can seek annulment regarding it even when it is in the hand of the priest), and therefore the same applies in charity. And it appears that they hold that money in the hand of the collector is not acquired by the poor, in accordance with the Rosh’s view in Nedarim above.

And the author of the Shulchan Arukh, who rules like the Rashba that one may not seek annulment, apparently holds that this is the poor people’s money.

Regarding the status of the money in the fund, see my notes in the accompanying pages to siman 256, where the parameters of the collector and the status of the money in the fund were discussed.

And regarding collectors who determined that he must contribute to the fund, or for some purpose, a specific amount, it appears that they can compel him, and perhaps even descend to his assets (see lesson 3). Therefore, it appears that in such a case the poor have a lien on his assets, even if the non-specified money here is not actually acquired by them. And in lesson 3 we saw disputes among the halakhic decisors on this matter.

For practical differences from all the above regarding monetary laws in charity money, see lesson 13.

Changing the purposes of charity:

This siman deals with changing the purpose of charity money. There are aspects that pertain to the laws of a public fund and collectors that were discussed in siman 256 (Maimonides also has this division: in chapter 9, halakhah 7, the laws of the fund are discussed, whereas changing charity money in general is discussed in chapter 8, halakhot 6–8). It is worthwhile to review again my accompanying pages to that siman. There there is a general introduction to the topic of changing designation in charity money (money and prohibition).

To obtain a comprehensive picture of this complex topic, it is recommended to study all of chapter 9 of the book Tzedakah U-Mishpat. Almost all the points discussed in this siman appear there, and therefore my purpose in these notes was to focus attention on several points that also relate to subjects discussed in the previous two lessons (therefore I focused mainly on halakhah 1, and on points connected to the matter that do not explicitly arise here in the Shulchan Arukh). As for accompanying the entire subject, it is worthwhile to study it there in order.

Main sources

Tur and Shulchan Arukh siman 259 (and also siman 256, se’if 4). Maimonides chapter 8, halakhot 6–8 (and also chapter 9, halakhah 7)

Main points for expansion

Changing the purpose of the fund by the townspeople

This is a matter discussed in siman 256; see there in the accompanying pages. However, one must add that it depends on whether the obligation to give to the fund is by virtue of an enactment of the townspeople; if so, the donor gave with the collectors in mind and it is permitted to change. Or perhaps the obligation is by virtue of compulsion to the commandment of charity, in which case it seems more that one may not change it to a purpose that is not charity (see Nikdash Bi-Tzedakah chapter 21, where he brought that they disputed on this: Rabbi Yosef Migash holds that one may change only for the needs of the poor, whereas Rabbenu Tam, Maimonides, and the Rosh hold that they may change it to whatever they wish; and see there in the Shulchan Arukh and Rema).

And some distinguished in this regard between whether the money was collected for one poor person, or for general needs; see Rosh, Bava Batra 8b, and Arukh HaShulchan siman 253, se’if 13, in the opinion of that Rosh. And see on this in the book HaTzvi VeHaTzedek, siman 8.

If there is found in the fund money vowed by an individual and handed over to the fund, not as part of a general collection, this is the topic of the current siman; and see Maharik, root 5, in the name of the Rashba and the Rosh, and see below on this.

He vowed and designated

Here the discussion is of a person who vowed charity and designated the money, and the Shulchan Arukh rules that he may still change the money. Note that his intent is not to changing the purpose of the money, but to taking a loan from it (for himself or for his fellow) and repaying it to charity.

One should remember that the conclusion of the previous lesson was that after designation the money belongs to the poor, both in a vow and in a donation. Therefore, one must discuss here whether this law indicates a right that he still has in the money, or whether it is based only on an assessment that the owners of the charity agree to this.

And it appears from the continuation of the Jewish law that once they came into the hands of the collector it is no longer possible to do so, it is proven that the issue under discussion is rights and not presumptions. However, this can be rejected, for with the collector the presumption also changes, since there the money is more readily available to the poor, and they require its accessibility to them.

The rationale of the Rema is that charity is not like consecrated property, and it is permitted to derive benefit from it, implying that the problem is only the prohibition and not the monetary aspect. That is, there truly is here a presumption that the poor agree, but with consecrated property such a presumption does not help, since the object itself is holy and it is forbidden to derive benefit from it. This rule does not exist with charity.

The continuation of the Rema’s words as well, that with charity standing to be distributed to the poor one does not do so except money for money, indicates that the considerations are only the accessibility for poor people who may come to ask, and not considerations of rights. And according to the Taz’s note in se’if katan 2, this is even more clearly proven.

However, one could have said that even if the money actually belongs to the poor, their permission is not needed to borrow from it, since a loan is given for spending, and their ownership is not over these specific coins, but rather this is like a debt toward them; therefore, a loan does not change matters in this regard.

It should be noted from Ketzot HaChoshen sec. 290 se’if katan 3, which we cited in the previous lecture, that it is proven that the one who set aside the money retains rights in it, for he can seek annulment of his vow even after the separation, and as Ketzot HaChoshen explained there, speech comes and nullifies speech. If indeed the acquisition were absolute, it seems that such a statement would not apply. It seems obvious that I cannot nullify my transaction with my fellow after it has already been completed, even if it was acquired through words. I later saw that this was also written in the book Tzedakah U’Mishpat, ch. 9 note 6, regarding the rule of annulment concerning money that came into the hands of the collector: according to those who hold that annulment is effective here, this is only with a collector, who is like the hand of the poor; but once it comes into the actual hands of the poor person, annulment no longer applies.

If so, the conclusion is that even after the separation of the charity money, where we saw that according to Jewish law in that state it already belongs to the poor, there is still room to say that this is not a full acquisition. On the other hand, this cannot be understood as merely a debt upon me (and not a real acquisition in these coins), for if so, what meaning is there to the separation? After all, this was already the case from the stage of the vow (at least according to some opinions). It appears, at least according to the author of Ketzot HaChoshen and those who agree with him, that this is akin to a debt with an apotiki. The separated coins are an apotiki for my debt to the poor. And the novelty is that even in such a case the rule of giving the money to the poor is fulfilled, which is the fulfillment of his vow (see lectures 11–12).

I found at the beginning of the book Nikdash BiTzedakah notes from Rabbi A. Shapira, who discussed contradictions in the matter of one’s declaration to the Most High, and concluded that the money after the vow is deposited in escrow (something like the status of an apotiki), see there and you will find satisfaction.

Specified poor people

See the gloss of Maharsha, who cited from the Shakh (a scribal error in the Maharsha gloss; it should read: Choshen Mishpat sec. 87 se’if katan 51, and see Ketzot HaChoshen there) that it is forbidden to change charity designated for one poor person and give it to another poor person. This implies that there are monetary rights here belonging to that poor person (as we concluded in the previous lecture). However, it is possible that this is only because of his vow (but then this Jewish law would not belong to Choshen Mishpat but to Yoreh De’ah, and that does not seem to be the Shakh’s meaning). See also the Rema sec. 256 par. 4.

However, his words are disputed. See Machaneh Ephraim, charity sec. 7, where he cited from Maharash Yafeh that he may change it, and the Radbaz disagrees on this. The conclusion of Machaneh Ephraim tends toward the view that he may change it, unlike the Maharsha gloss. And in Machaneh Ephraim there he explicitly made this depend on the question of vows and monetary law, see there.

See further in Ketzot HaChoshen sec. 87 se’if katan 21, which seems to hold that he cannot change it because his assets have become obligated. But in sec. 212 se’if katan 4 it appears that his conclusion is that according to most halakhic decisors he may change it (see Beit Yitzchak, Yoreh De’ah part 2 sec. 82, who noticed this).

And in Tzedakah U’Mishpat (ch. 9 note 3) it is written that apparently according to all opinions he can change it by seeking annulment of his vow. And see there regarding tithe money, where he cited from Maharam Schick (Yoreh De’ah sec. 236) that according to all opinions he can change it.

And see there another novelty: if he said it in the language of an actual vow or oath (“I vow to give this poor person a sum of 100 shekels as charity”), according to all opinions he cannot retract and change it, for this is no worse than any other vow that must be fulfilled. According to this, the whole discussion here is unique to the Jewish laws of verbal designation in charity, which according to some opinions is less than a regular vow (and certainly in mere thought there is room to be lenient, and see there on that as well).

And a certain institution is obviously like a specified poor person. That is, a specified group is like a specified poor person. This is different from poor people who are unspecified, even if they are a theoretically defined group (such as widows, captives, and so on). See there in Tzedakah U’Mishpat, note 4.

And see there further, where he wrote that if one vowed to unspecified poor people, he may change it even to poor people of a different category. This accords with the view we saw in the previous lecture, that an unspecified poor person has no acquisition (the Rosh in Machaneh Ephraim sec. 2). However, according to the Rif there, in my humble opinion, this cannot be done.

They came into the collector’s hands

In such a case it is forbidden to take a loan, and certainly not to give it to another poor person (in charity with a clear designation, and not general collection; see the opening note here). And it appears that here the monetary right is certainly what prevents it, except that even so the Rema gives a rationale of accessibility and not mere theft. And so too it appears from the Mechaber regarding a case where there was benefit for the poor, that it is permitted. If so, it is proven from here that even if the money really belongs to the poor (which is the practical Jewish law already after separation and even before it reaches the collector), it is still permitted to take from it from a monetary standpoint, and the whole problem is only the presumption regarding the poor people’s intent.

And one must discuss who is called a collector for this matter. See Machaneh Ephraim sec. 7, that we say this only with a permanent collector. However, see lecture 11 where we brought that there are cases where the giver himself has the status of a collector (according to the Ran in Rosh HaShanah). Yet there is not necessarily a dispute here, since the giver himself is the master of the house with respect to stipulating that he will be the collector, and he can also change the laws of the collector (as I suggested in that lecture, unlike Kehillot Yaakov, Rosh HaShanah sec. 2, who understood that he enters the ordinary category of collector. In practice, Machaneh Ephraim is speaking about an agent, regarding whom the practical Jewish law is that when one says to him “take [it],” it is not like “acquire,” and therefore he did not acquire the money for the poor. However, with a collector who is not permanent, but who acquires for the poor under the regular laws of acquisition, it seems obvious that his status is like that of an ordinary collector. See Achiezer part 2 sec. 23, and Noda B’Yehuda Tinyana, Yoreh De’ah sec. 154 (which was cited in the above lecture).

And regarding annulment of money in the collector’s hand, see my notes above and lecture 12.

Charity for a specific purpose

See Nikdash BiTzedakah end of ch. 17, in the topic / passage of Bava Metzia 78. And one must discuss whether the prohibition against taking it for another purpose is a prohibition (Yoreh De’ah), or whether it is theft (Choshen Mishpat), since it was not given for that. There is also room to discuss whether this is a reservation within the acquisition or a condition. A practical difference is whether the giver still retains rights in the money. A practical difference of this, for example, is regarding annulment according to the above Ketzot HaChoshen. See also Tzedakah U’Mishpat ch. 9 par. 3, and especially note 12 there.

And in my humble opinion there are here also aspects of deception, although I have not seen that they brought this here. See lecture no. 9, which dealt with this.

Surplus charity for a poor person and other commandments

Surplus charity means money that was collected and part of the sum remained after execution, or it became clear that it was not needed. See sec. 253 par. 6, and my notes there in the accompanying pages. See also Tzedakah U’Mishpat ch. 9 par. 4 and onward. See further in Kovetz Shiurim, Ketubot sec. 314.

Doubt in charity

See the note here. This topic will be discussed in lecture no. 13.

Taxes and levies from charity funds

See Jewish law 6 here. See the sources brought in Be’er HaGolah here. This practice also exists in modern states, which exempt charitable organizations (non-profits) from taxes. However, this question arises concerning a deceased person who directed from his assets to charity, where the state imposes estate tax on the assets. In any case, in such a case one may deduct the proportional share of the charity from the charity funds (see Tzedakah U’Mishpat ch. 10 par. 14 and the sources in the note there).

And it seems reasonable that when the community wishes to direct the goals of charity in certain directions, as part of the coercion toward that it can impose taxes on charitable organizations that operate for other goals. This is certainly a right that the community has; it is no worse than coercion for charity toward various goals. And especially if we follow the views that public needs themselves (for which the taxes are collected) are in the category of charity (see lecture no. 4 and lecture no. 10), then it is obvious that this can be done.

Monetary law regarding charity funds

See the rules brought in the Rema par. 6 here, and in the commentaries. The topic of the status of charity money (whose money it is, and whether it is money that has claimants, and so on) regarding monetary law generally (such as interest, cancellation of debt for charity, the law of a bordering property owner, the oath of bailees, and so on) should have been discussed in lecture no. 7. For one who wishes to expand on it, it is recommended to study Kehillot Yaakov, Rosh HaShanah sec. 3 s.v. “And now we must consider,” and Tzedakah U’Mishpat ch. 10, and Nikdash BiTzedakah ch. 23. The aspect of the laws of doubts will be discussed in lecture 13.

Lecture number 13: Doubt in charity

See HaTzvi VeHaTzedek sec. 6. Divrei Yechezkel sec. 30. Igrot Moshe, Yoreh De’ah part 1 sec. 150. Tzedakah U’Mishpat ch. 10 par. 16. And see Shakh and Gra on the Shulchan Arukh and Rema sec. 259 par. 5.

This is a complicated topic / passage with complex and ramified considerations, and therefore we will try only to briefly identify the type of considerations used here in the halakhic / of Jewish law discussion.

It is stated in the Shulchan Arukh sec. 259 par. 5:

One who has money in his possession, and is uncertain whether it is charity money, is obligated to give it to charity.

Gloss: But one who consecrated something in language that is uncertain, and died, so that his intent cannot be known—the heirs are considered in possession, and the consecrated property that comes to take from their hand bears the burden of proof. And as long as it does not bring proof, the assets remain in the possession of the heirs (Rashba sec. 656, and rulings of Maharai sec. 72, and see Choshen Mishpat sec. 250 par. 3).

We see from the Shulchan Arukh that doubt in charity is ruled stringently, as the law of doubt in prohibition and not like doubt in monetary law. And the Rema wrote that regarding consecrated property it is doubt in monetary law and not doubt in prohibition, and one who seeks to extract from another bears the burden of proof (doubt is lenient for the defendant). However, the commentators disputed whether the intent of the Shulchan Arukh is to distinguish between the doubt of heirs, who are not commanded in the prohibition (and therefore the rule that doubt in prohibition is ruled stringently does not apply to them, and it is doubt in monetary law ruled leniently), and the doubt of the person himself, who is liable in the prohibition; or whether the Shulchan Arukh intended to distinguish between charity and consecrated property.[28] A practical difference is a doubt in charity אצל the heirs, and similarly a doubt in consecrated property with the person himself. And simply, it seems there is no distinction between consecrated property and charity, and in both cases doubt in prohibition is ruled stringently, and so too the Shakh wrote here. Therefore, it appears that in the Shulchan Arukh, doubt in charity with the person himself is doubt in prohibition, and doubt with the heirs is doubt in monetary law.

However, in principle it may be possible to say that the difference is between doubt about consecration and doubt about money that is already holy. But specifically in doubt about consecration, it is more plausible that we should treat it as doubt in prohibition and not as doubt in monetary law, as will be explained below.

And in truth it appears that the Ran and the Rashba disputed this in Nedarim 7b (see Arukh HaShulchan beginning of sec. 258, and sec. 259 par. 15). For the Gemara there is uncertain whether there is a “handle” for pe’ah or not, and it remains unresolved. And there too the Gemara was uncertain whether there is a “handle” for charity, and that too remains unresolved. And the Ran there wrote in the name of the Rashba that regarding charity and pe’ah we rule stringently. And he brought there that Nachmanides also wrote that every unresolved case of prohibition we rule stringently (and so too in the Rosh and Nimukei Yosef). But the Ran himself disagrees with them, and challenged them from Chullin 134, where it implies that doubt regarding the money of the poor is doubt in monetary law and not doubt in prohibition, and we rule leniently for the defendant unless there is a presumption of obligation. And see there further, where he challenged from the Gemara in Yoma

(and see below).

And Maimonides also ruled stringently in this matter, and apparently he holds not like the Ran. However, the Ran himself, and likewise the Kesef Mishneh there, wrote that this follows his view that he rules according to “if you should say” everywhere, and therefore no proof can be brought from here that Maimonides disagrees with the Ran. However, from the Gemara’s doubt there whether there is a “handle” for pe’ah, where Maimonides also ruled stringently even though there is no “if you should say” in the Gemara there, Igrot Moshe, Yoreh De’ah sec. 150, proved that Maimonides too follows the Rashba and Nachmanides.

Now, in ordinary doubt in monetary law there is also a layer of prohibition because of the prohibition “do not steal,” and the well-known difficulty of Mahari Basan, brought in Kuntres HaSefeikot, is why we rule leniently for the defendant (one who seeks to extract from another bears the burden of proof), and do not treat it like any doubt in prohibition (theft) and rule stringently. And Kuntres HaSefeikot wrote that the prohibition of theft is unique, and the Torah permitted doubtful theft. Some explained that this rule is because both the claimant and the defendant are in a state of doubtful prohibition, and therefore the defendant need not be stringent, since the claimant too must be equally stringent (this is how Rabbi Shakh understood in his question to Igrot Moshe, Yoreh De’ah part 1 beginning of sec. 150, see there at length). However, in a case where one side knows the truth and the other does not, the question is whether he must be stringent (and simply the discussion concerns only the religious court, which does not know the truth—why should it not compel the defendant? In this, the defendant is no different from the claimant), and similarly in situations where there is no prohibition on one of the sides (see the above Igrot Moshe). Likewise in cases of certainty versus uncertainty to extract from one in possession, where the practical Jewish law is that this does not help without proof; seemingly this is a case where the defendant does not know, and in the laws of prohibitions he should apparently be stringent with himself, whereas the claimant, who knows the truth, need not be stringent. And there are other examples along these lines.

And the well-known answer of Rabbi Shimon Shkop is that in the prohibition of theft, the prohibition follows the money, and therefore once we decide the monetary doubt, no doubt of prohibition remains either. According to this, there is no special novelty in the prohibition of theft.

Following this, Kuntres HaSefeikot, principle 1, challenged the Ran: granted that in ordinary doubt in monetary law we rule leniently for the defendant, and the Torah innovated that there is no doubtful prohibition of theft here, as explained. But in doubt about the poor man’s money there is the prohibition of “he shall not profane” and the prohibition of “he shall not delay,” and regarding this we should seemingly be stringent out of doubt. And see there further what he challenged from the topic / passage in Chullin 23.

However, according to the side that says we are not stringent in doubt in monetary law because stringency for one is leniency for the other, here it works out very well, for only the giver is subject to the prohibitions of “he shall not delay” and “he shall not profane,” while on the other side there is no prohibition at all. Therefore there is indeed room here to be stringent like any doubt in prohibition.

And according to Rabbi Shimon Shkop, it appears that there is no room for comparison here, for the prohibitions of “he shall not delay” and “he shall not profane” do not concern only money but also ordinary vows, and therefore it cannot be said that they are derived from the legal-monetary rule, unlike theft. However, in situations where we discuss charity prohibitions (“do not harden [your heart]”), there is room to say, like the prohibition of “do not steal,” that they are derived from the monetary layer, since these prohibitions concern only money (and see at the end of the lecture a distinction in this regard. However, there it appears that usually when charity prohibitions affect the practical law, this is a situation where there is no monetary law at all but only prohibitions, since it concerns a personal obligation to give, and not money that belongs to the poor; see our remarks at the end of the lecture).

See Netivot HaMishpat (laws of seizure, principle 2), who explained the view of the Rashba and Nachmanides: in a place where there is only one prohibition (“do not steal”), the Torah permitted doubt in monetary law for the defendant; but where there are additional prohibitions, like “he shall not profane” and “he shall not delay,” there doubt in monetary law is forbidden (and see there that according to this he also resolved the Ran’s difficulties). It is not clear to me whether he claims that the quantity of prohibitions is decisive, or whether the prohibition of theft was singled out from other prohibitions (like Kuntres HaSefeikot or Rabbi Shimon Shkop).

It should be noted that in previous lectures we saw that the Rashba holds that declaration to Heaven in charity has no legal-monetary significance. According to this, it is obvious that this is an ordinary doubt in prohibition, and we rule stringently. But according to this, there is no monetary law here at all. I later saw in Machaneh Ephraim, charity sec. 2, that he made the dispute among the medieval authorities (Rishonim) depend on this: the Rashba holds that there is no monetary law here at all, and therefore it is doubt in prohibition and ruled stringently; while the Ran holds that declaration to Heaven creates monetary ownership for the poor, and therefore this is doubt in monetary law.

Accordingly, according to the Rashba there is no need to reach the answer of Netivot HaMishpat, for according to his view this is only prohibition and not money. However, regarding the Ran, it still seems difficult: why does he not take into account the doubt in prohibition that exists here?

And in light of our note regarding the Rashba, the question against the Ran is very strong. For if there is only prohibition (as the Rashba holds), then we must be stringent; and if there is also monetary law, then we should be lenient. The monetary layer is added to the prohibition and does not replace it. Therefore, seemingly we are compelled to say that we should rule stringently even according to the Ran, who holds that there is a monetary layer (perhaps even more so than the Rashba).

It appears that according to the Ran one must say that in charity the prohibition follows the money, like the law of “do not steal,” and therefore its doubt is ruled leniently. After we decide the monetary doubt that out of doubt the money remains with the defendant, there is no prohibition here either. It appears that this can be said only according to Rabbi Shimon Shkop’s formulation, for regarding the prohibition of “he shall not profane” we have not found any special novelty that its doubt is ruled leniently, and therefore one cannot say like Kuntres HaSefeikot. However, even according to Rabbi Shimon Shkop this is difficult, for “he shall not profane” is a prohibition that does not concern only money, and therefore it is forced to say that in monetary situations it will be determined according to the monetary law.

And with difficulty one could say that the Ran follows his own view that only upon separation does the money become the acquisition of the poor (see lectures 11 and 12), like the view of Maimonides. Therefore his intention is to say that he is indeed obligated to separate, and with this he has fulfilled the prohibition, for the money is acquired by the poor through separation (see there), and now only the money remains, and regarding that the practical Jewish law is that one who seeks to extract from another bears the burden of proof. But this is forced, because according to this the Ran holds that he must separate money for charity and only is not obligated to give it, and that is not the meaning of his language. From his wording it is clear that he need not separate at all. Therefore the Ran’s view still requires further clarification, and will be explained below.

If so, until this point we have seen that the Rashba holds that in a declaration for charity there is only prohibition and not money, and therefore its doubt is ruled stringently, while the Ran holds that there is here both prohibition and money, and therefore its doubt is ruled leniently.

And the Shakh challenged this from responsum 656 of the Rashba, where one sees that even according to his view there is a monetary plane, and in that we rule leniently for the defendant. For this Rashba is the source for the Rema’s rule regarding consecrated property, and there we follow the money, and therefore its doubt is ruled leniently. And indeed, as we saw above, this is the law concerning heirs, in whom there is no prohibition but only money (for they did not vow at all). Nevertheless, we see that they do have a monetary law, and it is proven that in charity too there is monetary law and not only prohibition. And we also see in the topics / passages cited by the Ran that in doubt about the poor man’s money there is also a monetary dimension, and therefore we rule leniently.

According to our remarks, seemingly one can say that even according to the Rashba and Nachmanides there is a monetary dimension to charity money. Their dispute with the Ran is not as Machaneh Ephraim wrote; rather, they disagreed whether the money of charity and gifts to the poor is drawn after the prohibition, as the Rashba and Nachmanides held, or whether the prohibition is drawn after the money, as the Ran held.

And in lecture 12 we saw that the commentators disputed whether in declaration to Heaven the prohibition follows the money or the money follows the prohibition. We further saw there that in charity, unlike consecrated property, it is plausible that according to all opinions the money follows the prohibition (for the poor cannot acquire by courtyard acquisition throughout the world).

Accordingly, one can apparently understand the Rema’s distinction in the second way (a distinction between consecrated property and charity, and not between heirs and the father), and this answers the Rashba against the Shakh’s question.[29] However, the Shakh himself resolves it by distinguishing between heirs and the father; but see Divrei Yechezkel sec. 30 se’if katan 5, who rejected this from the Rashba’s own wording.

All this works well according to the Rashba and Nachmanides, since they hold that in charity we rule stringently, and if so the money follows the prohibition. However, regarding the Ran it remains difficult, for one cannot say here doubt is ruled leniently, since in charity according to all opinions the prohibition precedes the money, and we should have ruled stringently.

The case of which the Ran and the Rashba speak concerns one who vows charity in the language of a “handle” (= “this dinar for charity, and this”). There the discussion is about the very application of the name charity to the money, and this indeed belongs to the subject of last week. Here his declaration is in the form of a “handle,” and according to the one who holds that the application moves from money to prohibition, the basic doubt here is a monetary doubt, and the resolution of the monetary doubt will determine whether the prohibition takes effect. But according to the one who holds that the application moves from prohibition to money, the basic doubt here is a doubt in prohibition. According to this, the dispute between the Ran and the Rashba is connected to the previous lecture, and the question is from where the application of the name charity begins (and of course regarding the Ran this is difficult, since in charity according to all opinions we begin from the prohibition, as explained above).

By contrast, in the case of the Shulchan Arukh here, where someone has money and is uncertain whether it belongs to charity or not, there is an inquiry that is seemingly independent of that of the previous lecture. For here the discussion is whether, when prohibition and money exist together, the prohibition follows the money or the money follows the prohibition, as explained above.

Now, the Ran challenged from the Gemara in Chullin regarding the cow of a convert that was slaughtered at a time uncertain relative to the time of conversion (and the question is whether he is obligated in the foreleg, cheeks, and maw), and similarly from ant holes (where the discussion is whether the wheat that fell into the hole was from before the harvest or after it). In the topic / passage in Chullin, it is clear that the discussion is of the type found in the Shulchan Arukh—namely, a discussion of an existing state, and not a discussion of the application of the status of gifts to the poor. If the wheat fell before the harvest, then it is not gifts to the poor; and if it fell from the harvest, then it is gifts to the poor. In a case of doubt, this is clearly like money in my possession that I am uncertain whether it belongs to charity. This is an existing state that, if it is gifts to the poor, includes both money and prohibition. The same applies regarding the slaughter.

And the Ran further challenged there from the Gemara Yoma 8b. However, there much must be discussed, for once he separated again, the prohibition departed, and only doubt in monetary law remained, which is lenient for the defendant (as Rashi wrote there).

It appears that according to what we said above, the views of Nachmanides and the Rashba are very well defended against the Ran’s questions. When it comes to the application of the status itself, then doubt in charity is ruled stringently, and this is how they ruled in the topic / passage of a “handle” for charity. For they hold that the money follows the prohibition in declaration to Heaven. However, in the topic / passage in Chullin, there the Rashba and Nachmanides would concede that doubt is ruled leniently, because there the discussion is about doubt as to the existing state and not doubt in the application itself. But according to this, the Shulchan Arukh is not like Nachmanides and the Rashba, for it establishes doubt as stringent even in the context of doubt about an existing state (and in practice it is also not like the Gemara in Chullin).

See Igrot Moshe, Yoreh De’ah part 1 sec. 150, who proved that Maimonides follows Nachmanides and the Rashba, and that this is unlike the Shulchan Arukh here.

And it appears that the Ran, in principle, agrees with the Shulchan Arukh that there is no difference between doubt in the application and doubt in existing charity, even though according to the Ran we rule leniently and according to the Shulchan Arukh stringently (for the source of the Shulchan Arukh is the Rashba). However, in the Shulchan Arukh one does not see a necessary connection between the topics / passages as one sees in the Ran, though one does see that he rules stringently even in doubt regarding an existing state.

And perhaps the reasoning of the Ran and the Shulchan Arukh is that the above connection does indeed exist. One who holds that concerning money bearing the name of charity, and thus containing both money and prohibition, the money follows the prohibition, will also hold that in the application the money follows the prohibition, and therefore in such a case we rule stringently. The reasoning is that the order of application (regarding declaration to Heaven) is derived from the essential order. Since in the existing state the prohibition follows the money, likewise in the application this must be the order.

However, it should again be noted that, as we saw in the previous lecture, the order in the application of the name charity by declaration must according to all opinions be from prohibition to money (unlike consecrated property, where there is room for dispute). Therefore the doubt should be a doubt in prohibition, and we rule stringently. If so, the Ran is difficult, since he explains that we rule leniently for the defendant in both cases. But the Shulchan Arukh works well.

Now, one can discuss the rule of charity and the like, where there is both money and prohibition, assuming there is no connection between the planes. Until now we assumed that one determines the other, but let us now assume that indeed there is no connection. In such a situation, it appears that we should decide that the monetary doubt is lenient for the defendant, and independently the doubt in prohibition is stringent for the defendant. That is, we would have a situation where the defendant is obligated to pay under Yoreh De’ah, but exempt under Choshen Mishpat. This is parallel to one who vows to give his fellow money, where the fellow has no monetary right against him at all, and clearly cannot claim the money from him. However, under Yoreh De’ah he is indeed obligated to give it to him.

On another level, one must discuss a case of doubt. When there is doubt in charity, there is doubt in prohibition, and therefore one must be stringent because Torah-level doubt is ruled stringently. There is still room to discuss: even if we say that the prohibition determines the money in a case of certainty, is that also true in a case of doubt? If I am required by the laws of doubt to be stringent and give, does that prohibitory obligation then also arouse a monetary obligation? Here there is certainly room for a further distinction, to say that it does not. The reason is that the obligation to be stringent in the laws of doubts and go stringently so as not to enter a state of doubt may either be an independent prohibition, or an extension of the doubtful prohibition itself. In doubt in charity, if I must be stringent because of doubt, then if we say that an obligation of charity rests on me, it will also determine the money. But if this is an independent rule forbidding entry into a doubtful situation, that prohibitory obligation was not newly established as something that determines the money.

Therefore, it appears that there is room to distinguish between money and prohibition in two directions: either we say that there is no connection at all between money and prohibition, even in a case of certainty, and these are independent planes; and even if they are dependent in a case of certainty, there is room to say that in doubt they are not dependent, as explained.

According to all this, it may be possible to explain the Ran as saying that in monetary law we indeed say that one who seeks to extract from another bears the burden of proof, and therefore the poor person will need to bring proof in order to extract from the householder. However, in the laws of charity the householder is indeed under an obligation to be stringent out of doubt, like any doubt in prohibition. The Ran would argue against the Rashba and Nachmanides that although doubt in prohibition is stringent, this has no implication for the monetary law, where we rule leniently. Nachmanides and the Rashba established that out of doubt there is a “handle” for charity, and according to the Ran this means that there is indeed an obligation of charity, and such an obligation includes a monetary layer. The Ran disputes this and claims that there is here only a prohibitory layer, while from a monetary standpoint we rule leniently. The defendant is obligated to give under Yoreh De’ah, but the claimant must bring proof in order to receive.

And in this perhaps the connection the Ran makes between doubt regarding an existing state and doubt in the application of the name charity can also be explained. Since the Ran claims that the two planes operate in parallel, and one is not affected by the other, therefore just as in doubt regarding an existing state we rule leniently for the defendant on the monetary plane, as is proven from the topic / passage in Chullin, so too in doubt in the application (as in the topic / passage of a “handle” for charity) we will rule leniently for the defendant. However, as we saw, in the application of charity the money follows the prohibition according to all opinions, and therefore the doubt is a doubt in prohibition according to all opinions, and thus we rule stringently. But on the legal-monetary plane one can still say that in doubt we rule leniently for the defendant, because the prohibition took effect due to doubt, but the money still did not take effect. For on the legal plane the obligation rests upon him to bring proof for his claim in order to receive the money, as explained.[30]

It should be noted that in the Shulchan Arukh the case is doubt in existing charity, whereas the Rema speaks about one who vowed to consecrated property in uncertain language, meaning that this is doubt in the application. Yet in the Rema’s case he determines that we rule leniently, and therefore there is no room to make the difference depend on this, for doubt in the application is more a reason for stringency, not leniency. Therefore it appears that the difference is between heirs and the father, and the Shulchan Arukh, like the Ran, does not distinguish between the two types of doubt. However, Divrei Yechezkel proved that in the Rashba it is not plausible to understand the distinction as between father and heirs, but in the Shulchan Arukh and Rema it is possible that this is how they understood it.

According to our remarks, in the view of the Rashba and Nachmanides the prohibition determines the money, while according to the Ran these are independent planes. It should be noted that the prohibitions discussed here are prohibitions of vows and not charity prohibitions, and therefore it is somewhat doubtful whether one can truly say that in such a case the prohibition determines the money. For granted, with charity prohibitions this is itself the essence of the concept of charity—that the prohibition creates rights for the poor. But here the discussion is not about a poor person asking me for a donation, where a personal obligation to give is created and this is a case of charity prohibitions. Here the situation is that I have some money concerning which there is doubt whether I am obligated to fulfill my vows, and that seemingly determines nothing in legal terms.

However, according to the Rosh in Nedarim, whom we saw in the previous lecture, who wrote that the money is acquired by the poor because he cannot retract from his vow, we see that even in such a case the money follows the prohibition. According to this, one can indeed say the same in the Rashba and Nachmanides. The Ran, however, truly disconnects the planes.

See my notes to sec. 251 regarding checking a poor person, where we remained uncertain what the proper verification is. There I wrote that one should proceed according to the laws of doubts in charity. However, there this is a doubt in the prohibition of charity and not a doubt in the prohibition of a vow (“he shall not profane” and “he shall not delay”).

See Divrei Yechezkel sec. 30, who distinguishes between vows and freewill offerings. In freewill offerings (“this is”), where the money is acquired by the poor (see lecture 12), this is doubt in monetary law; whereas in a vow (“it is upon me”), which is a personal obligation, this is doubt in prohibition. In a freewill offering there is no specific money at all that is the poor man’s money (even though we saw there that there may be a lien to the poor in such a case).

Accordingly, it appears that when a poor person asks me for charity, a personal obligation is created and not a monetary lien (this is not a case where he vowed and said “this is” and thereby created a debt to the poor). Therefore its doubt is like any doubt in prohibition. However, one must still consider, according to our remarks above, whether this is a monetary debt or merely a prohibitory obligation (toward Heaven and not toward the poor person. See lecture 1 on the topic of a blessing over charity, where we distinguished between commandments between man and God that concern one’s fellow, and commandments between man and his fellow).

It should also be noted that some distinguished between doubt in charity and doubt in gifts to the poor. In charity he himself creates the obligation, and therefore it is also doubt in prohibition. In gifts to the poor the prohibition is created automatically, and if indeed there is pe’ah or gleanings here, then it is already the poor man’s money. In such a case this is genuine doubt in monetary law, and not doubt in prohibition. According to this, the understanding in charity is that there is a layer of prohibition, because of my declaration, and this is what creates the money. Only because of this is there room to say that this will be doubt in prohibition and not doubt in monetary law; and this needs no further elaboration (see, for example, the above Divrei Yechezkel, and HaTzvi VeHaTzedek sec. 6).

However, in the Ran and the Rashba here it appears that they did not distinguish in this way, for they linked pe’ah to charity. Still, one can distinguish between pe’ah and the other gifts to the poor, since pe’ah is determined by declaration, and therefore the discussion is whether there is a “handle” for pe’ah. There is no room at all to discuss whether there is a “handle” for gleanings or forgotten sheaves, because there once he forgot the produce it belongs to the poor. With pe’ah, his declaration determines the situation, and therefore it is rightly comparable to charity and not to the ordinary gifts to the poor. According to this, there is no necessity from the Ran and the Rashba against the above distinction. However, from the Ran’s questions it appears that he did not distinguish in this way, and this topic / passage requires more detailed examination, but this is not the place.

[1] See Maharal, Netiv HaTzedakah ch. 4 s.v. “And in the midrash,” who noted this.

[2] And it can be rejected, for with Turnus Rufus the Gemara asked why the Holy One, blessed be He, created poor people, whereas Jeremiah refers to a situation in which poor people already exist. That is, one can say that poor people were created in order to grant us merit, but now that they have been created we must give to them in order to improve their condition. See also further points rejecting this inference in the lecture: Bava Kamma—16, several notes at the end of the chapter.

[3] And see lecture no. 3 for what was written similarly in explaining the commandment of honoring father and mother according to the Ritva’s view.

[4] See there in my notes that the halakhic decisors wrote nowadays that this is one who does not have a fixed salary.

[5] And this is unlike Shitah Mekubetzet, Ketubot 67, who wrote that “sufficient for his lack” means a poor person who fell from his assets, to whom one gives according to what he was accustomed to. From the Rashba here, however, it appears that even if he has something now, one still gives him. See responsa Beit Shlomo part 2 sec. 106 (cited in HaTzvi VeHaTzedek at the end of se’if katan 1) for what he concluded from the Shitah Mekubetzet as practical Jewish law. And see my notes to sec. 250 on the matter of “sufficient for his lack.”

[6] And it should be noted regarding the words of Rabbenu Tam: what does “to compel with words” mean—persuade? talk? The expression “compulsion with words” seems somewhat stronger. It appears that we must adopt any non-violent means in order to cause him to perform these obligations. Only violence is excluded. These matters are well explained in light of our explanation above in subsection A. Even regarding commandments whose reward is stated alongside them, there is an obligation upon me to cause him to perform his obligations; but since the Torah said that there is no punishment other than withholding reward, there is no permission to use violence for that purpose. The situation is that I must actually compel him, but I am forbidden to use violence against another in order to realize obligations imposed upon me. See below in the next note (beginning of subsection C) for one approach in the Ritva’s view that the lack of the poor is an alternative reason permitting violence.

[7] It is important to sharpen here the explanation of why the lack of the poor is a substitute for liability to punishment. As we saw in subsection A, the obligation to cause my fellow to fulfill his obligations is my obligation, and therefore it cannot serve as grounds for using violence against him. His liability to punishment for his deeds (or failure to act) adds a factor not connected to me, but rooted in the offender himself, and therefore where there is liability to punishment I may use violent coercion against him. The lack of the poor is a reason parallel to liability to punishment. There is indeed no punishment here, for the reward for the commandment of charity is stated alongside it, but the factor justifying coercion is not only my obligation but the distress of a third party toward whom the fellow is not fulfilling his obligation. This reason constitutes legitimate grounds for using violence against the sinner, since it is not connected to me but to another person who suffers because of him. Indirectly, this reason can be considered connected to the sinner himself, just like his liability to punishment.

[8] I later saw in the collection MiBeit Levi, Nisan 5757, vol. 11, p. 20 note 5, that he cited from the new responsa of Mahari”l sec. 108–109 that tithe makes produce tevel on a rabbinic level. He also cited there that there is a commandment of separation as with grain tithe (from the work Rishon LeTzion by the author of Or HaChaim). See lectures 11–12 regarding separation and giving in charity.

[9] And see Torah Temimah there and in ch. 1 on money tithe, where they made this depend on the dispute between Maimonides and Raavad, Laws of Kings ch. 9 par. 1; see also Kesef Mishneh and Migdol Oz there. See further Chatam Sofer, Yoreh De’ah responsum 232, Tzafnat Pa’aneach on gifts to the poor ch. 7 par. 5 and more, who wrote like Kesef Mishneh.

[10] However, there is a possibility of saying that taxes are no worse than expenses a person has for the sake of his work, and therefore they should be deducted from the total salary. According to this, the tithe is paid from the net, even though one may still maintain that the gross is the salary.

There is a major practical difference between these two conceptions regarding the perception of reality in the state today. There is a claim against the Haredi (ultra-Orthodox) public that it does not participate in paying taxes and lives at others’ expense.

According to what is said here, this is not so. One who receives a salary (at least an employee) does not pay taxes; rather, his employer pays them, and he receives a salary in the amount of the net (this is the basis on which he came to work, not on the basis of the gross). The employer, by contrast, rolls the taxes he pays into the price of the product; that is, they are loaded onto the buyer. If so, the only one who pays taxes is the buyer of a product or service, since all the stages along the way are built into the product’s price. In purchasing products, everyone participates equally, according to the products they wish to buy. Here the choice is in each person’s hands: which products to buy.

From such a perspective, there is no one who does not bear the burden. The difference is only the question of which products you want to buy, and what standard of living you want to maintain. One who wants to buy many products and at a high price must go to work in order to earn more (not in order to pay more!), and one who is satisfied with a simple standard of living does not go to work.

In an extreme formulation, one can say that each person is measured by how much effort he invests and how much he spends on his livelihood, without regard to how exactly his monetary relationships with his environment are defined.

[11] And perhaps there is another way to understand it this way, if we say that the state joins him in donating to that place for half the sum. In such a case one can say that in the end he caused that place to gain 100 shekels even though not all the sum came from him (ka mishtarshi lehu), and therefore he is exempt from tithe. This depends: if there is an obligation of separation from his own money, clearly this was not separated. If there is an obligation of giving to charity, it is possible that this is considered as though it was given (like the Ran in Gittin regarding one who betroths with the value of orlah, which is a case where money was given to the woman that did not come from him).

[12] There is another discussion regarding a loan, namely whether one may lend to a poor person on account of tithe money. Some distinguish there between a familiar poor person and ordinary poor people (regarding a familiar poor person, see lecture 6). On this matter see Tzedakah U’Mishpat ch. 5 pars. 12–13 and the notes.

[13] And in sec. 232 there the Chatam Sofer wrote to explain in Mahari”l that he holds tithe is from the Torah, and therefore belongs to the poor. However, it has already been noted that in Mahari”l sec. 54 he explicitly wrote that it is rabbinic.

[14] And thus too the proof from gifts to the poor on Purim can be rejected, since that is a special rabbinic rule for Purim. The same applies regarding the four cups and the Hanukkah lamp and the Sabbath: perhaps there is a special enactment here, and in any case this is a rabbinic obligation.

[15] However, it is not clear whether kollel scholars are called people who sustain themselves from charity, since they receive payment from the state (at least part of their stipend) in order that they be able to sit and learn, like researchers and university students. The stipend is fixed and does not depend on their requests, and they must decide whether to take part of it for commandments and their enhancements.

In any event, it is clear that the conclusion from the problem raised here is not to stop enhancing commandments or doing commandments, but rather not to take charity except for one’s minimal livelihood.

[16] And it is interesting to discuss what the prohibition is against forcing one’s fellow into a prohibition. Seemingly there is here an elegant solution for someone who wants to desecrate the Sabbath: let him force his fellow to do so for him, and everyone comes out clean. We must say that there is a prohibition here upon the coercer, and since it has no separate source, clearly this is the prohibition they violate (as with one who clothes his fellow in kilayim, who violates the prohibition of kilayim).

[17] And see the above Shakh who cited from the Bach, who ruled like the “there are those who say,” namely like the second answer in Tosafot, since it is forbidden to redeem gentile captives with these funds, both משום deception and because idolaters should be lowered and not raised. This requires examination, for here the discussion is about ordinary gentiles and not idolaters, and regarding them the practical Jewish law is that we support them together with the poor of Israel. If so, redeeming them should be the same, and perhaps even all the more so, permitted.

[18] And this requires examination: according to the view that the basis of deception is stealing gratitude for nothing, would it belong here at all to speak of this prohibition? I have not found anyone who questioned this here.

[19] Similar to the sign in a barbershop that intends to address the commandment of “do not delay [a worker’s wages],” and the commandment “do not round off the corners of your heads.”

[20] Something like this: when one believes in no truth at all, that very belief (that there is no truth) becomes an absolute truth.

[21] Similarly, Greece was replaced by Rome without any war, because it represented a world of wisdom without divinity. Rome also integrated Christianity, and therefore it endures to this day. There is within it a point that gives it life. Without a divine point, the empire collapses on its own, with no external war at all. This is law without kindness, wisdom without faith / belief (divinity).

[22] At present I have not found the halakhic decisors explicitly, but this seems obvious in reasoning. See lecture no. 2 in the Shakh’s view distinguishing between one in need and a poor person, and it appears that “sufficient for his lack” refers to one in need and not a poor person; therefore there is here an existential commandment (see the lecture on coercion).

[Indeed, one must examine the laws concerning the poor person’s obligation to sell his utensils before taking charity, for if he needs a horse it is not plausible that we would be compelled to give him a horse if he must first sell his own utensils.]

[23] And one must discuss why with charity one vows regarding a commandment. Giving charity is a Torah commandment, though an existential one. The question is what the status of the vow is relative to the obligation itself. Usually the Gemara discusses and decides that a vow can take effect upon a matter of commandment (vows of encouragement), but here there is an entire section devoted to such vows of encouragement. It is possible that here too lies part of the novelty that by verbal declaration, charity is included in the realm of vows.

[24] And one could have said that the collector steps into the place of the owner, and all the owner’s obligations are imposed on him. This does not mean that he is the owner’s agent, for if so, when he delays the money, the owner would violate “he shall not delay,” and he himself would violate “do not place a stumbling block.” However, it is possible that there is no agency for transgression, and therefore he himself violates “he shall not delay,” similar to one who clothes his fellow in kilayim or renders a priest impure—if the wearer or the one rendered impure is unwitting, the one who clothes or defiles receives lashes. See the section below and the next lecture for a discussion of the status of the collector.

[25] And Kehillot Yaakov proved this from Nazir: if he were obligated to give in any case, and would violate “he shall not delay” until his death, then he would have been obligated to give immediately, like one who vows naziritehood in the language “I shall not depart from the world until I become a nazirite.”

[26] And it clearly implies from his wording that when a poor person approaches me, I can indeed tell him that I wish to give to another poor person. Only here, where there is concern of profaning his vow (that he will never give), does Mordechai say his words.

[27] According to this, one must say that speech that nullifies something nullifies what applied it and not the thing itself. One must also assume that the applying speech exists all the time (“Forever, O Lord, Your word stands firm in the heavens”), and can be nullified after it has physically ended. In general, these matters are puzzling, for in the end how can one nullify an acquisition after it has taken effect, when there is no connection at all between me and the object? (See my Toldot Adam on Bava Metzia regarding rental acquisition and a laborer who retracts halfway through the day. In any case, perhaps here, since the money is still in his possession, Ketzot HaChoshen holds that the acquisition has not yet ended even on the legal level, and therefore there is still a connection between him and the object, and it is like the slave and laborer in the above lectures. See the notes in the accompanying pages to sec. 259 regarding a vow and separation, and regarding money that came into the collector’s hands, and Tzedakah U’Mishpat ch. 8 note 6 that is cited there.

[28] Below we will see that there is a way to understand the Rema this way. However, according to this it remains somewhat difficult, for one who consecrates nowadays, the money goes to the poor, since ordinarily that is his intention (though the halakhic decisors wrote that if he explicitly states that his intention is actual consecrated property, then it is consecrated property). According to our discussion here, it follows that when one consecrates money and it goes to the poor, this is a different procedure than vowing money to the poor. The only explanation for this is that when one consecrates money nowadays, this is not a presumption about his intent that it should go to the poor; rather, this is the law that consecrated property itself wants it to go to the poor. If so, in such a case the money is consecrated property, and the poor acquire from Heaven’s table, and therefore in a doubtful case this is like doubt in consecrated property and not like doubt in charity. If indeed this is only a matter of the vower’s intent, it is difficult to see why there should be a difference between consecrated property and charity.

[29] And see the explanation in the previous note.

[30] Perhaps there is here a dispute over the meaning of the rule that one who seeks to extract from another bears the burden of proof. If we say that its meaning is halakhic / of Jewish law: doubt in monetary law is lenient for the defendant—that is the Ran’s view. Or perhaps its meaning is legal: the claimant must bring proof in order to receive the money—and that is the view of the Rashba and Nachmanides. I have not examined this sufficiently.