Siman 248

Our sages, of blessed memory, said in Gittin (Gittin 7b) that even a poor person who is supported by charity is obligated to give charity, and then they do not show him signs of poverty, see there. And so wrote the Tur and Shulchan Aruch. And there is a question regarding this: for the Tur himself wrote in siman 251 in the name of our teacher Saadia Gaon that one is not obligated to give charity until he has his own livelihood, as it is said: "And your brother shall live with you" — your life takes precedence over the life of your brother. And our teacher, the Rema, also wrote there accordingly. And it appears that for this reason our teacher, the Beit Yosef, omitted it there in the Shulchan Aruch, as he wrote there in his book "Bedek HaBayit," and this is his wording: I have some hesitations regarding Rabbi Saadia. Thus far his words. And it is clear that he found it difficult because of the law before us.

And there is one from whose words it appears that here too it is dealing with a case where he has his livelihood, and if not – he is not obligated to give tzedakah, as I wrote in siman 251. And if it is difficult: for if so, how is he permitted to receive tzedakah? For it can be said that it is dealing with a case, for example, where he does not have two hundred zuz, for he is permitted to receive tzedakah, as I wrote in siman 253 (Shach, subsection 1). And these are astonishing matters: for if he has a livelihood, it is obvious that it is forbidden for him to receive tzedakah even when he does not have two hundred zuz. For the reason that with less than this measure he is permitted to receive tzedakah is because the sages estimated that with less than this measure he does not have enough to support himself, as I wrote there. But when he has a livelihood, who permitted him to receive tzedakah even if he has no money at all? And besides this, the forced nature of the explanation is clear.

And in my humble opinion, there is not even the beginning of a difficulty here, for they are two distinct matters: that which was explained there, that one is exempt from tzedakah until he has enough for his own livelihood, refers to ongoing tzedakah, such as a tenth or a fifth of his income. However, here we are dealing with the obligation of tzedakah once a year, to fulfill the positive commandment of tzedakah. Regarding this, they said in Bava Batra (Bava Batra 9a): A person should never withhold himself from giving less than a third of a shekel per year, and it will be explained in siman 249. And regarding this, they said in Gittin there that even a poor person who is supported by tzedakah is obligated to give tzedakah, meaning: to fulfill the commandment of tzedakah, which is the third of a shekel. And proof for this is from the words of the Rambam in the seventh chapter of Matnot Aniyim, law 5, who wrote, and this is his wording: And one should never withhold himself from a third of a shekel in a year. And anyone who gives less than this has not fulfilled the commandment. And even a poor person who is supported by tzedakah is obligated to give tzedakah to another. Thus far his words, meaning: that same third of a shekel.

The Tur and the Shulchan Aruch in section 1 (Shulchan Aruch Yoreh Deah 248, 1) wrote: Every person is obligated to give, even a poor person, etc. And one who gives less than what is appropriate for him to give—beit din coerces him, and they strike him with lashes of rebellion until he gives what they estimated him to give. And they seize his property in his presence and take from him what is appropriate for him to give. Thus far their words. And they wrote that this does not refer to a poor person, for later in siman 253, section 8, it is explained that a poor person who did not give—they do not obligate him to give (Derishah). But it does not imply so. And there is one who wrote that here it deals with one who has a livelihood from another place (Shach, small subsection 2, and he follows his own reasoning). And we have already explained that it is impossible to say so. However, according to what we have explained, it is not difficult at all. For here it deals with the matter of the third of a shekel of every year, and in this they coerce him. And in siman 253 (Shulchan Aruch Yoreh Deah 253) it deals with other tzedakah, and it comes to teach us that if a poor person gives—they accept it from him. For you might have thought to say that since he gave the third of a shekel, they no longer accept from him. It comes to teach us that this is not so. And it says that if he did not give, they do not obligate him to give, because he is exempt from tzedakah for the rest of the year after he gave the third of a shekel. (And with this, the second difficulty of the Derishah and the Shach is also answered, as to what it comes to teach us that they accept from him, for is he not obligated in tzedakah? And according to our words, it settles well with good reason. Examine it and you will find it easy.)

And that which they wrote "and they descend to his properties in his presence," and so wrote the Rambam – some say that even in his presence, and all the more so not in his presence (Bach). And some say specifically in his presence, but not in his presence – they do not descend to his properties until we inform him, as with a debt in Choshen Mishpat siman 106. And if it is impossible to inform him – they descend not in his presence (Shach subsection 4). And some say: furthermore, that not in his presence – they do not give tzedakah at all from his properties in any case (Beit Shmuel in Even HaEzer siman 71 and other great authorities). And in truth it is a dispute of the Rishonim, for from the plain meaning of the sugya (Ketubot 48a) it is explained that one who went to a country across the sea – they do not give tzedakah from his properties. And so wrote the Maggid Mishneh in the twelfth chapter of Ishut (the Rambam, Laws of Ishut, chapter twelve), see there. However, the approach of the students of our teacher Yonah is that we do give tzedakah (Shitah Mekubetzet ibid.), for they explain a different explanation in the Gemara there. And also the Ran wrote there that when he is wealthy – they give tzedakah, see there. And so in the Tur here he wrote plainly that they descend to his properties, and did not mention "in his presence," see there. Except that the commentators wrote that one must emend the text thus in the Tur (see Bach), and it is not certain. And the Rambam at the end of the Laws of Inheritances (the Rambam, Laws of Inheritances) wrote that one who became insane or became a deaf-mute – beit din gives tzedakah from his properties, see there. However, this is no proof regarding one who went away of his own will, as is explained in the sugya there. And one must wonder about the Rambam that he did not mention this law, that not in his presence they do not give. And perhaps he relied on what he wrote that in his presence they descend – it is explained that not in his presence they do not descend.

It further appears in my humble opinion that they do not disagree at all. For certainly, regarding a new assessment of tzedakah, one does not assess him when he is not present. However, regarding tzedakah that was already fixed, and which he always gave, why should they not take from his properties even when he is not present? For it is reasonable to say regarding a new assessment that he gives in the place where he is, or that when he arrives – he will give. But regarding fixed tzedakah, since one may compel it, if so, what does it matter to us if he is present or not? And it is not similar to the sustenance of his sons and daughters older than six years, where we say that since it is not pleasing to him – why should we worry for his offspring? And even regarding this, we explained in Even HaEzer there that it can be said that normally one provides sustenance, see there. But regarding fixed tzedakah, one certainly gives. And a proof for this is from tuition, as was explained in siman 245, that one descends to his properties and pays tuition for his son, see there. And why should fixed tzedakah, which the poor have already merited, be inferior to tuition? And a further proof is from orphans, for whom one does not assess tzedakah. Yet a matter that has a fixed amount is given, as will be explained. And so it appears to me from the precision of the language of the Rishonim, that what they said in Ketubot there refers to a new assessment of tzedakah (see Shita Mekubetzet). And all the more so according to what our teacher, the Rema, ruled there in Even HaEzer, that if he began to provide sustenance – one provides sustenance even afterwards. And in a case where he is assessed to be wealthy, one provides sustenance in any event because of tzedakah, see there. And all the more so in this case. And it is a kal vachomer if his wife or his sons and daughters are here, whom he left in charge of the conduct of his household expenses, that one takes the tzedakah from them in any event, and even a new assessment of tzedakah, since they stand in his place. And such is the simple custom, and one must not change it.

Our sages, of blessed memory, said (Bava Batra 8b) that one may seize collateral for tzedakah even on Erev Shabbat. And even though the homeowner could say, "I am preoccupied with Shabbat needs, and I will give after Shabbat" – we do not pay him heed. And it appears that this is specifically regarding fixed tzedakah, which they are already giving and the time has arrived – even on Erev Shabbat one may seize collateral for it. However, for new tzedakah, where they are making a tzedakah assessment now – he can say, "I am preoccupied now, and I will give after Shabbat" (Bach). And it is also implied in the Gemara there that it refers to the kuppa, see there, which they would distribute every week.

The Tur and the Shulchan Aruch wrote in section 3 (Shulchan Aruch Yoreh Deah 248:3): One does not assess orphans for tzedakah, even for the redemption of captives, even if they have much wealth, unless they assess them for their honor, so that a name should go out for them. Thus far their words. Our teacher, the Rema, wrote: And specifically tzedakah that has no fixed amount, or that has a fixed amount upon the assets of orphans, and they can wait until they grow up. For example, if they have tevel, and do not need to eat now. But if they need to eat now – one tithes and takes terumah for them. And the same law applies to tzedakah that has a fixed amount, for example, if they had poor relatives, and they had a fixed amount from their father every single year, and they have nothing to eat but this or they will go begging at doors. And it would be a disgrace to the orphans, their apitropos gives from their assets the fixed amount to their relatives. Thus far his words.

The explanation of their words: For in Gittin (Gittin 52a) it was taught that apotropoi do not separate terumah or maaser from the produce of orphans except for what they need to eat. And it was further taught there: And one does not assess charity upon them, and one does not redeem captives for them, nor any matter that does not have a fixed amount, see there. And it is explicitly explained that for a matter that has a fixed amount—one gives on their behalf. And according to this, that which we say in Bava Batra there, that one does not assess charity upon the orphans unless it is done to bring them prestige—deals also with a matter that does not have a fixed amount, as is explained in Gittin. And so implies the primary language of "one does not assess," which refers to a new assessment. And the reason is simple: for granted that orphans are not subject to performing a mitzvah. And therefore one does not assess charity upon them, and one does not tithe their fruits in order to fulfill the mitzvah of maaser. Nevertheless, they are also not subject to transgression. And the charities that their father gave in the city, such as the kuppah and tamchui and other charities, or to relatives—behold, the poor have established a right through this. And if they do not give to them now, behold they are committing a transgression, just as one tithes and separates terumah from what they need to eat so that they do not eat a prohibited thing, and hands it over to the Kohen and the Levi. And here too it is so. And therefore our teacher, the Rema, explained regarding tevel, because so it is in the Gemara. And that which he wrote regarding "a fixed amount" such as for relatives—he is teaching us a novel point, that it is not only necessary to say regarding the charity fixed in the city which they have already established, for which the people of the city compel. Rather, even for relatives, where they could say: "Our father wanted to give to them, but we do not want to"—nevertheless, until they grow up one gives to them, since they have a fixed amount. And that which he wrote as the reason: "because it would be a disgrace to the orphans," which implies that otherwise we would not give to them—he is teaching us a novel point, meaning: that even if it will be in their power to withhold the charity from the relatives when they grow up, such as if their father exceeded the proper measure, nevertheless as long as they are minors—the apotropous may give for the sake of their honor, and it is like bringing them prestige. (And the Bach disagrees with the Rema, and his words require investigation, and the main ruling is like the Rema. And also the difficulty of the Shach in subsection 9 is answered according to what I have written. And examine carefully and you will find it easy.)

And with that which has been explained, that when they give on their behalf in order to accord them importance it is permitted, there is one who says that this is specifically with orphans who do not have a reputation. But when they have already acquired a good reputation—one should not give in order to accord them more importance (Bach and Shach subsection 6). And they further wrote that if the apotropos says: "I do not want them to have a reputation"—we listen to him (ibid. subsection 5). And so too there is one who says that this is specifically when they are exceedingly wealthy (Bach). And there is one who says even if they are not exceedingly wealthy (Shach ibid.). And a wealthy orphan who was ill and the apotroposim pledged to tzedakah on his behalf, and afterwards the orphan died, if they already gave the money to the tzedakot or to the poor, even if they are still in existence—they do not return to the heirs. And so too if they handed it over to the treasurers, or if after one took it he said "I am acquiring this on behalf of the poor or the tzedakot." But if nothing has yet been done, only mere speech—the heirs can prevent the fulfillment of what they said, since he died (Pitchei Teshuva in the name of the Maharit siman 127).

Tzedakah collectors do not accept from women, slaves, or children except for a small amount, but not a large amount, as the presumption is that it is robbed or stolen from others. And how much is a small amount? Everything is according to the wealth of the owners and their poverty. And these words apply in an unspecified case. However, if the husband protests even a minimal amount – it is forbidden to accept from them. And if they fined the woman with any fine – the husband is obligated to pay (Shach, subsection 10). And likewise, what she vowed while she was single – he is obligated to pay (Beer Heitev in the name of the Maharam Mintz). And a woman who demands of her wealthy husband to give to her relatives according to his wealth – the husband cannot protest against her (ibid.). And the matter is astonishing, for how is it in her power to give against his will? However, according to what we will explain in section 13, it works out well.

In Choshen Mishpat siman 81, it has been explained that one who made a condition with another to teach Torah to the son of his fellow in the presence of the father, and the father remained silent—silence is equivalent to admission, and he is obligated to pay, see there. However, if he hired him not in the presence of the father—he is not obligated to pay, even though he knew of this. And this is regarding another person. But the wife of a man who hired a melamed for her son even not in his presence, and he knew of this and remained silent—it is certainly pleasing to him, and he is obligated to pay. But if he protests against her immediately when he hears—there is nothing to her actions. However, if he remained silent immediately when he heard—he is obligated to pay, and he cannot protest afterward. And even when she conducts business within the house—he can protest against her, for everything is his. And know that there is one who holds that when a woman is occupied in commerce, we do not say regarding this "what a woman acquired, her husband acquired" (Mishneh LaMelech chapter twenty-one of Ishut (the Rambam Hilchot Ishut chapter twenty-one) in the name of the Rashba and the Maharit, see there). And according to this, from such a woman one is certainly permitted to take tzedakah. And even though this law is not clear to us, nevertheless regarding the matter of tzedakah it is possible to rely on this opinion. And know that in the Yam Shel Shlomo at the end of Bava Kamma, he wrote in the name of the Ra'avan, that nowadays we accept from women even a large amount, for nowadays women are considered like the apotropoi of their husbands, see there. He further wrote there regarding the law where she hired a melamed for her son: even though we do not know clearly that he knew— we say presumably he knew, until he brings proof that he did not know, see there.

And it appears to my humble opinion that since we hold that one may compel for tzedakah, and now in this time it is known that we do not have the power to compel, therefore if there is a wealthy man who is a miser and a stingy person and the wife gives tzedakah without his knowledge, certainly she herself cannot be the judge in this. However, if the rabbi in the city says to her that according to his means, if our hand were powerful we would compel him to give such and such—she may give according to this amount. And why should we be diminished by the fact that we lack the power to compel him, if we have the power to take out the tzedakah that he is obligated in by law? Even though compulsion is with the knowledge of the owners, and here it is without his knowledge, nevertheless since he is obligated in this sum but there is no power to compel him, nonetheless the obligation is cast upon him, and we judge in this according to his obligation. And I saw a certain great authority who forbade in such a case (Noda BiYehudah, Second Edition, Yoreh Deah, siman 158). And perhaps in his days there was still power in the hand of the beit din to compel him, which is not the case in our time. And according to this, that which we questioned at the end of section 11 regarding her relatives—that he cannot protest against her, and yet how is it in her power to give against his will—is settled well. For according to our words it is settled well, that in a matter in which he is obligated, it is in her power to act. And the matter is simple that any woman who says that her husband gave her permission is believed.

The Tur and the Shulchan Aruch section 6 (Shulchan Aruch Yoreh Deah 248:6) cited a Tosefta: A son who eats with his father, and a slave who eats with his master – may give a piece of bread to a poor person or to the son of his friend, and he need not be concerned about theft, for such is the custom of householders. Thus far their words, and it is a Tosefta at the end of Bava Kamma. Before us is a different version, namely, "he gives a piece to the son, and to the daughter, and to the slave of his friend, and he need not be concerned etc.," see there. It appears that the version of the Tur and the Shulchan Aruch is clearer, and likewise the Mordechai in the first chapter of Bava Batra cited according to their version, see there. From this is the custom that a male servant or a female servant in the house of the householders – they give a piece to a poor person because such is the custom, unless the householder protests against them, for then they may not give. And the Mordechai there cited further from Tractate Derech Eretz chapter nine: Guests who enter the home of a householder are not permitted to give to the son of the householder, nor to his slave, nor to his maidservant (so it must be said), unless they have received permission from the householder. Thus far his words. And this does not contradict the Tosefta, for there it is a different matter, as perhaps the householder has nothing to give other than what he placed before them, and due to shame they will come to danger, as he concludes there. This was also brought in Chullin (Chullin 94a), and as I wrote in Orach Chaim at the end of siman 170, see there. And in truth, if there is plenty on the table – they are permitted to give (Magen Avraham subsection 23). And the Tosefta is dealing with a case where he knows that the householder has enough to give, for if not, it is certainly forbidden, as his own life takes precedence.

A person who is exceedingly generous, who gives tzedakah more than his capability, or who causes himself distress and gives to the gabbai so that he will not be ashamed—it is forbidden to demand from him and to collect tzedakah from him. And the gabbai who shames him and asks of him—the Holy One, Blessed be He, will eventually call him to account. And thus our sages, of blessed memory, said (Bava Batra 8b) that regarding that which is written, "And I will punish all that oppress them"—this refers to tzedakah gabbaim who pressure the giver to give, when he is not supposed to give, see there. And the Rambam wrote at the end of Issurei Mizbe'ach: One who wishes to merit for himself should subdue his evil inclination and broaden his hand, and bring his offering from the finest and the choicest of that species from which he brings. Behold, it says regarding Hevel: "And Hevel, he also brought of the firstlings of his flock and of the fat thereof. And the Lord had respect unto Hevel and to his offering." And the same law applies to everything that is for His Name, may He be blessed, that it should be from the pleasant and the good. If he built a house of prayer—it should be more pleasant than his dwelling house. If he fed the hungry—he should feed from the best and the sweetest of his table. If he clothed the naked—he should clothe from the finest of his garments. If he consecrated something—he should consecrate from the finest of his possessions. And so it says: "All the fat is for the Lord." Thus far his words. And all these things he should do with a generous eye and with a joyful heart.