Siman 251

It is written in Parashat Re'eh: "If there be among you a needy person, one of your brothers, in one of your gates... and you shall not shut your hand from your needy brother." And it is taught in the Sifrei: "Your brother" – this is a brother from the father; "one of your brothers" – this is a brother from the mother. This teaches that a brother from the father takes precedence over a brother from the mother. "In one of your gates" – this teaches that the people of your city take precedence over the people of another city. "In your land" – this teaches that the poor of Eretz Yisrael take precedence over the poor of the diaspora. And from where do we derive the inhabitants of the diaspora? The verse says: "which Hashem your G-d gives you" – in any place. Thus far the wording of the Sifrei. And the Tanna Debei Eliyahu (chapter twenty-seven) taught: "'Is it not to share your bread with the hungry... and from your own flesh do not hide yourself' – how is this? Rather, if a person has sustenance within his house, and seeks to perform tzedakah with it in order to support others from his own, how shall he act? First he shall support his father and mother, and if there is a remainder he shall support his brothers and sisters, and if there is a remainder he shall support the members of his family, and if there is a remainder he shall support the members of his neighborhood, and if there is a remainder he shall support the members of his alleyway, and if there is a remainder he shall support the rest of the Children of Israel, etc." Thus far his words. And in this manner we say in the fifth chapter of Bava Metzia: "Your poor" meaning: your relatives and the poor of your city – your poor take precedence. The poor of your city and the poor of another city – the poor of your city take precedence.

This is the wording of the Rambam in the tenth chapter, and the Tur and the Shulchan Aruch section 3: One who gives to his adult sons and daughters, whom he is not obligated to support, in order to teach the sons Torah and to guide the daughters in a straight path, and likewise one who gives gifts to his father and they are in need of them – behold, this is included in tzedakah. Moreover, he must give him precedence over others. And even if he is not his son or his father but his relative – he must give him precedence over any person. And his paternal brother takes precedence over his maternal brother, and the poor of his household take precedence over the poor of his city, and the poor of his city take precedence over the poor of another city. Thus far their words. And "the poor of his city" refers to those who dwell in the city. And those who come from another city to here are called the poor of another city even though they are now here. And there are those who disagree on this, and the Tur decided according to the first opinion.

The Tur wrote there: Rav Saadia Gaon [held] a person is obligated to prioritize his own sustenance over any other person, and he is not obligated to give tzedakah until he has his own sustenance, as it is said: "And your brother shall live with you" – your life takes precedence over the life of your brother. And so the Zarphite woman said to Eliyahu: "And I will make for me and for my son first, and afterward for my son, etc." And after he sustains himself – he shall prioritize the sustenance of his father and mother over the sustenance of his children, and afterward the sustenance of his children, etc. Thus far his words. And our teacher, the Rema, transcribed this, and this is his wording: His own sustenance, etc., his father and mother if they are poor and they take precedence over the sustenance of his children, and afterward his children and they take precedence over his brothers, and they take precedence over other relatives, and the relatives take precedence over his neighbors, and his neighbors over the people of his city, and the people of his city over another city. And the same law applies if they were captives and it is necessary to redeem them. Thus far his words.

And behold, we have already explained in siman 248, section 3, that that which they wrote—that one is not obligated to give tzedakah until he has his own livelihood—this refers to constant tzedakah: ma'aser or a fifth. However, to fulfill the mitzvah of tzedakah of a third of a shekel per year, every person is obligated, even a poor person who is supported by tzedakah. Nevertheless, regarding the core of these matters, it is very difficult for me: for if we say these things according to their plain meaning, that these take precedence over those, and those over those, the implication is that he does not need to give at all to the level that follows this. And according to this, it is a known matter that every wealthy person has many poor relatives, and all the more so for a householder whose tzedakah is meager. If so, according to this, those poor people who do not have wealthy relatives will die of hunger! And how is it possible to say so? Therefore, it appears in my humble opinion that the clarification of the matters is as follows: that certainly every householder or wealthy person who gives tzedakah is obligated to give a portion to the distant poor, but to his relatives he shall give more than to those who are not his relatives, and so all of them according to this level. And also regarding that which they wrote that his own livelihood takes precedence, if we say it according to its plain meaning, then most householders would be exempt from tzedakah entirely, aside from a third of a shekel per year. And it is known that regarding the majority of Israel, would that their livelihood suffice for their expenses; and according to this, they would all be exempt from tzedakah except for the very wealthy. And in places where there are no wealthy people, the poor would perish from hunger. And how is it possible to say so? Furthermore, the custom is not so.

Therefore, it appears clearly in my humble opinion that what the Gaon wrote—that his own livelihood takes precedence—refers to a man who only earns meager bread and water of affliction. Therefore, he brings proof from the Zarphite woman, for there it was a matter of actual life and death, as there was a famine in the world as is explained in Kings there. But if he has bread and water remaining, his father and mother take precedence, and afterwards his children, etc. However, a man who earns his livelihood like an important householder, who eats properly of bread, meat, and cooked foods, and wears and covers himself properly—he is certainly obligated in tzedakah, a tenth or a fifth from his livelihood. And a large portion of the tzedakah he shall give to his relatives and the poor of his city. And a small amount he is obligated to give even to those far away and the poor of another city, for if not so, a city of poor people would perish in hunger, Heaven forbid. Rather, it is certainly as I have written. And you should know that it is so, for if not so, what boundary would you set for "his livelihood" which takes precedence? And everyone would say, "I need everything I earn for my livelihood," for there is no boundary to expenditures, as is known. Rather, it is certainly as I have written, that it only refers to one who has only limited bread, to sustain his soul and the soul of his wife and his small sons and daughters.

And proof for this: For seemingly, what did the Tur and similarly our teacher, the Rema, add to the words of the Gaon regarding the calculation of the levels, that this one precedes that one? For has this not already been explained? But according to our words, it is well-settled: For previously they wrote the laws that are in the Sifrei and in the Gemara regarding the order of the levels of tzedakah, and that is regarding the wealthy or established householders who give much tzedakah – he shall prioritize in tzedakah the closest relative first. That is to say: that he is obligated to give to everyone, only that to the relatives they give the larger portion. And this matter requires an assessment of the mind, and it is impossible to explain in detail, as is understood.

And afterward they brought the words of the Gaon, and it is a completely different matter. That is, in a case where a man earns only the bare necessities of life, meager bread and scant water, for his life takes precedence. And they brought this wording which is explained in the Gemara (Bava Metzia 62a), which deals with two who were walking on the way and they have nothing, and in the hand of one is a flask of water that is not sufficient for both of them – that his life takes precedence, see there. So too he brought from the Zarephathite woman that it was similar to this, as I have written. Therefore, if bread remains for him – his father and mother take precedence, and afterward his adult sons, and afterward his brothers, etc. And so too what we brought from Tanna Debei Eliyahu – the intention is also in such a case. And therefore it says there the wording "and if he left over," meaning: if a little bread remains – this one precedes that one. And therefore it says if a person has food within his house, and seeks to perform tzedakah with it, meaning: that he has only the food necessary for the sustenance of life, and by law is exempt, if he wishes to restrict himself – he should give first to his father and mother, etc., according to the order of the levels.

And that which was explained, that his father and mother take precedence, this is when he cannot afford it, as I have written. But when he can afford it—he should not consider at all as part of tzedakah what he gives to his father and mother, and as I have written in siman 240, that a curse shall come upon a person who supports his father and mother from tzedakah (Shach, subsection 5). And it appears to me that therefore in the Sifrei his father was not mentioned: because it stands upon the verse, and it deals with the time when Israel dwelt upon their land, and they could afford it, and then he must not sustain his father from tzedakah. And his wife's relatives are like his own relatives. And there is one who wrote that to his wife's relatives he should give a third, and two-thirds to his own relatives (Pitchei Teshuvah, subsection 2 in the name of the Maharam Mintz). And I do not know from where we have this to say so. And that which was explained that the poor of his city take precedence over the poor of another city, this is even when the poor of his city are amei ha'aretz, and those of the other city are talmidei chakhamim—the poor of his city take precedence. And that which will be explained later, that the one who is greater in wisdom—takes precedence over his fellow, this is when both are from his city or both are not from his city (ibid. in the name of Responsa She'elat Yaakov). And the proof for this is from his relatives who take precedence over others. And this is certain, that even if they are amei ha'aretz—they take precedence due to their kinship, as it is written: "And from your own flesh do not hide yourself." And according to this, also other things that they enumerated, the law is so. And know that the poor of Yerushalayim take precedence over the other poor of Eretz Yisrael (Chatam Sofer, siman 233). And this is when they do not have meager bread; but when the poor of Yerushalayim have bread, and the other poor of Eretz Yisrael have no bread at all—they take precedence (ibid.).

Our teacher, the Beit Yosef, wrote in section 4 (Shulchan Aruch Yoreh Deah 251:4): We compel the father to provide for his poor son, even if the son is an adult. And we compel him more than the other wealthy people of the city. Thus far his words. And this is from the words of the Rashba in a responsum. And he explained there, for example, where the father is wealthy and gives to the tzedakah fund of the city, and says that they should give to his son from the fund—we do not listen to him, and we compel the father to provide for him from his own pocket and not from the fund. And it is implied there that they give him a small amount from the fund as well (see there), but the primary sustenance the father must give. And there is a proof for this in the Gemara (Bava Metzia 174b), and also the Mordechai wrote in the first chapter of Bava Batra that the wealthy person is obligated to provide for his poor relative, and not the gabbai, and it will be explained in siman 257. And it is simple that he may calculate this on the account of maaser when he provides for his son, and certainly his relative. However, he is also obligated to give to other poor people, as I wrote in section 4.

If two poor people come, one hungry for bread and one in need of a garment – we prioritize feeding the hungry one, and afterward we clothe the naked one. If a man and a woman come to request bread – we prioritize the woman over the man. And likewise when they come to request clothing, because the shame of a woman is greater than that of a man. But when the man requests bread and she requests clothing – the man takes precedence, for physical suffering is worse than disgrace. (See Sanhedrin 45a, and even according to the other [opinion] it is not comparable to here. Examine it and you will find it easy.) And likewise if an orphan boy and an orphan girl come to be married – we prioritize marrying off the orphan girl. And even though the man is commanded regarding procreation and the woman is not commanded, as I wrote in Even HaEzer siman 1, nevertheless regarding the matter of prioritizing – she comes first. And it appears in my humble opinion that if there is not enough in the fund for both of them – he takes precedence, because he is commanded regarding procreation and she is not. And one should not ask regarding what I wrote that a woman precedes a man for sustenance, for behold at the end of Horayot we learned in a Mishnah: A man precedes a woman for "keeping alive" etc., see there. For "keeping alive" there does not mean sustenance, but rather to rescue them from death, as is proven there.

If many poor people came to a gabbai of tzedakah, and there is not enough in the purse to provide for all of them, or to clothe all of them, or to ransom all of them—they prioritize the Kohen to the Levi, and the Levi to the Yisrael, and the Yisrael to a chalal, and a chalal to a shetuki, and a shetuki to an asufi, and an asufi to a mamzer, and a mamzer to a Natin, and a Natin to a ger, and a ger to a liberated slave. In what case are these words said? When they are equal in wisdom, such that one is not much greater than the other. But if one of all these is distinguished in wisdom, and the second is minor in wisdom and certainly an am ha'aretz, regarding this the sages taught in the Mishnah of Horayot that a mamzer who is a talmid chakham precedes a Kohen Gadol who is an am ha'aretz. And even a talmid chakham for clothing, and an am ha'aretz for sustenance—the talmid chakham precedes. And even the wife of a talmid chakham precedes an am ha'aretz. And some say that in this time we do not judge so (Shach subsection 16). The general rule of the matter: whoever is greater in wisdom precedes his fellow. And if one of them was his teacher or his father, even though there are those there greater in wisdom than them, his teacher who is a talmid chakham or his father precedes the one who is greater than him. (So it appears to me to read in the Tur Shulchan Aruch section 9 (Shulchan Aruch Yoreh Deah 251, 9). And the difficulty of the Shach subsection 17 is settled, see there. And see Beit Yosef, who wrote that in the Yerushalmi at the end of Horayot it asks: Is a Levi not a Yisrael? And it answers: They taught regarding the time of the platform. Which implies that not during the time of the platform—there is no precedence of a Levi to a Yisrael. But in our Shas it does not imply so, see there. But in truth even the Yerushalmi does not intend so, for what does it ask? It is obvious that the sanctity of a Levi is more than a Yisrael. Rather the Yerushalmi stands on that of Nazir chapter seven (end of halacha 1) that a Levi and a Yisrael who encountered a met mitzvah—the Yisrael should become tamei and not the Levi. And it asks there this difficulty, because regarding tumah their law is equal. And it answers: At the time of the platform, as it is said that he should be able to go to the Mikdash. And the way of the Yerushalmi is so, to raise a difficulty on another place when it contains this phrasing as is known. And also the Pnei Moshe explained so, see there. And see Magen Avraham at the end of siman 201, and it requires further study. And from Rashi there is no proof, see there. And be precise and you will find it simple.)

Our sages, of blessed memory, said (Bava Batra 9b): We investigate for clothing, but we do not investigate for food. That is to say: it is certainly true that we do not give anything at all to a deceiver, but when it is not known whether he is a deceiver or not, then if he comes to request a garment—we investigate him lest he be a deceiver, because he can endure until the investigation is complete. But if he requests bread—we do not investigate him, and we feed him immediately, for perhaps he is hungry and his suffering is great. And one should not raise a difficulty against this from that which is stated there (Bava Batra 8a), that Rabbi was distressed that he gave his bread to an am ha'aretz. For is it not so that we do not investigate for food? For there it is a different reason, as even without this it is difficult, for is it so that one does not need to feed an am ha'aretz? Rather, there it was years of famine as is explained there, in a manner where there was not enough for everyone. Therefore, a talmid chacham takes precedence over an am ha'aretz as I have written, and Rabbi was concerned lest bread be lacking for the talmid chacham. However, otherwise, one is obligated to sustain his life. And also, that which he was distressed was because he did not know if he was so compelled, for for the most part an am ha'aretz can obtain bread more than a talmid chacham. But if he comes before us cast in hunger—certainly even in years of famine we are obligated to sustain his life, even though there is a doubt lest it be lacking for the talmid chacham afterwards. (So it appears to me to explain what was written in the Shulchan Aruch, section 11).

Anyone who stretches out a hand to take bread—we give to him. And even if a star-worshiper comes to request bread—we give to him. And so the sages said: We provide for the poor of the star-worshipers along with the poor of Israel, for the sake of the ways of peace. And it is not specifically "along with" the poor of Israel, for even if he comes alone to take—we give to him. And we give even if occasionally he committed a transgression for his desire—we are obligated to provide for him, as it is written: "And your brother shall live with you." And even if he committed a transgression—he is "your brother." In what case are these matters stated? When he transgressed by chance. But if he is a constant transgressor of one transgression, even though he does so for appetite—he is not included in "your brother." And we are not obligated to sustain him, nor to lend to him, nor to redeem him. Nevertheless, if they wish to redeem him or to feed him and sustain him—there is no prohibition in the matter, since he acts for appetite. But one who commits a transgression to provoke, even for one commandment, even one time—behold, he is a min and an apikores, and it is forbidden to redeem him, to feed him, and to sustain him. And all this is when they have not done teshuvah. But if they have done teshuvah—behold, they are completely upright. (I have written according to what emerges from the Shulchan Aruch section 1 and 2, and according to the words of the Taz and the Shach, see there. And know that in the Shulchan Aruch it is written that "to provoke" is defined as one who eats nevelah in a place where kosher is common, and so it is implied in Gittin 47b. And nowadays, in our many sins, we see this as not being to provoke, but rather due to a lack of habit and the dullness of the heart. And also in the Gemara it can be said that that which they said, "he leaves the permitted and eats the forbidden"—this means that he says he does not want the permitted at all. And this is certainly to provoke, and this is not common at all. And may Hashem have mercy.)

Our teachers, the authors of the Shulchan Aruch, wrote in section 5 (Shulchan Aruch Yoreh Deah 251, 5): One who gave money to the gabbaim for tzedakah—neither he nor his heirs have any power over them, and the community shall do what is good in the eyes of G-d and man. However, before they come into the hand of the gabbai, if he vowed tzedakah without specification—they are given to his poor relatives, for it is an assessment of the mind that his intent was for his relatives. And specifically if he had poor relatives at the time of the vow, but if they were wealthy then and became poor—they are not given to them. And all this is regarding one who pledges tzedakah alone. But if he pledges tzedakah with the people of the city—he vowed according to the mind of the people of the city, and they shall do what they wish. Thus far his words.

The explanation of the matters: Previously it was explained how to conduct oneself regarding tzedakah, meaning the constant tzedakah that a person gives, each man according to his means and the generosity of his heart. But here we are dealing with one who set aside a significant sum for tzedakah without specification, and did not specify for which tzedakah. For example, before his death he set aside from his money a significant sum for tzedakah without specification, or even during his lifetime his heart moved him to set aside a significant sum for tzedakah; if he handed over the money to the gabaim of the city's tzedakah funds—he no longer has, nor do his heirs have, any power over them. And it appears that even if he has not yet handed it over to the gabaim, but rather said, "I hereby donate such and such to tzedakah to hand over the money into the hands of the gabaim"—he no longer has, nor do his heirs have, any power over them. And the community shall do what is good in the eyes of G-d and man, according to the view of the seven leaders of the city, or according to the majority of opinions, or according to the beit din. And likewise, even if he did not say to hand it over to the gabaim but rather donated without specification, however he did not donate alone but rather all the city residents donated, meaning that it occurred to the city residents to make a tzedakah assessment of significant sums, and each one assessed himself for such and such—he also has no power over them, nor do his heirs, for he donated according to the intent of the city residents. For in matters of tzedakah we follow the assessment of intent, and the city residents shall act according to their view. But if he volunteered alone without specification, and did not hand it over to the gabaim, and also did not say to hand it over to them—he may do with them as he wishes while he is alive. And if he is not alive—we assess his intent, that his intention was for his relatives, and they are given to the relatives. And specifically to poor relatives who were present at the time of the vow. But if they became poor afterwards—they are not given to them, for certainly his intention was for those in need at the time of the act, and it did not enter his mind regarding those who would be in need afterwards. However, while he is alive, he may do as he wishes. And this is the explanation of their words.

And I wonder about this: for it is true that there are some of the poskim who hold so, that one who gives tzedakah without specification – his poor relatives merit it. And likewise, one may give the ma'aser to his relatives (Mordekhai, first chapter of Bava Batra in the name of the Re'em, and Kol Bo brought in the Beit Yosef, and see Taz subsection 3). Nevertheless, behold several of the great authorities disagreed regarding this, and this is the wording of the Mordekhai there in the glosses in a responsum of the Ribam: I found that one who sets aside money for tzedakah without specification – he is not permitted to distribute them to his relatives alone, for he is obligated to distribute to all the poor of the city equally. And so it is in the Tosefta, chapter HaGozel: One who says "give a maneh to the poor" without specification – it shall be given to the poor of that city. Thus far his words. And in the text of the Mordekhai it is written there: Our teacher Avraham responded: One who sets aside his money for tzedakah, and he has a relative in the city, he is not permitted to give it to his relative alone etc. Thus far his words. And there is one who explained that this refers to where he donated with the people of the city (see Beit Yosef), but the language does not imply so. And from the end of tractate Pe'ah it is implied that he may give half to his relatives, as we learned (chapter eight, mishnah 6): If he was "saving," meaning that he does not want to distribute all the ma'aser ani that he has, and wants to give from this to his relatives – he takes half and gives half, see there. However, there is one who says that this is regarding that which the Torah obligated him. But regarding that which he donated of his own accord – he may give everything to his relatives (Beit Yosef in the name of the glosses there). And it appears to my humble opinion that in all these matters the beit din shall act according to their assessment, for regarding tzedakah and consecrations we follow the estimation (Shach subsection 9 in the name of the Re'em).

It is a simple matter that one who designates a principal fund for a certain tzedakah, such that they shall perform a specific tzedakah from the profit, even if the profit is not sufficient for this matter, nevertheless, there is no authority to take from the principal. And similarly, if his sons or his grandsons became impoverished—there is no authority to give to them from this tzedakah that he designated for another matter, unless he alluded to this in his will. And there is one who says that from the profit they may give to his heirs who became poor based on the reasoning of an assessment of intent (Panim Meirot, siman 113). And I do not know why: since they were wealthy at the time of the act—certainly it did not enter his mind that they would become poor afterward, as I wrote in section 15. And all the more so if he designated it for a specific tzedakah, how is it possible to give from this to his heirs? And one must deliberate much on this. (See Tashbetz, part three, siman 289, regarding a certain woman who at the time of her death commanded to give her property to the poor of her city. And afterward a poor brother came from afar, and he was fit to inherit her, and he ruled to give to him based on the reasoning of an assessment of intent, see there. And this is obvious, since he was fit to inherit her, and he was in distant places, and he was poor at the time of the act.)

In the first chapter of Avot we learned: And let the poor be members of your household. And this is its explanation: for previously we learned: Let your house be open wide, and let the poor become accustomed to coming to your house to serve you and they will profit from you, and do not purchase slaves to serve you. It is better to be served by the seed of Abraham. And there are other various explanations. However, this explanation is primary, for so it is explained at the end of the chapter "HaZahav," see there. And we learned in Peah (chapter five, mishnah 5): Two who received a field in sharecropping—this one gives to that one his portion of ma'aser ani, and that one gives to this one his portion of ma'aser ani. Therefore, our teacher, the Beit Yosef, ruled in section 12: Two poor people who are obligated to give tzedakah—each one of them may give his tzedakah to his fellow. Thus far his words. And our teacher, the Rema, wrote that this is specifically tzedakah, but if each is obligated a fine to tzedakah because they transgressed something—they cannot give one to the other, for if so, there is no fine here. Thus far his words. And it is obvious that after they have given to the tzedakah pouch, the gabbai may sustain them from this, and they are no worse than the poor in general. Provided that he does not promise this to them beforehand, for if so, there is no fine here.

They asked the Rosh, of blessed memory: A community that needs a rabbi, and also a shaliach tzibbur to fulfill the obligation of the many, and their hand cannot reach both things, who comes first? And he replied (principle 6) that if he is a distinguished rabbi, and expert in Torah in rulings and in laws – Talmud Torah comes first. And if not, a shaliach tzibbur is preferable to fulfill the obligation of the many. Thus far his words. And the Tur and the Shulchan Aruch brought it in section 13 (Shulchan Aruch Yoreh Deah 251:13). And it is implied from this that the shaliach tzibbur was a necessity to fulfill the obligation of the many, because there were many amei ha'aretz who could not pray at all, and no other man had the ability to stand before the amud to pray. And even so, a distinguished rabbi is preferable. And it is not a wonder, for Torah is greater than prayer.

Our teacher, the Rema, wrote that one should not provide for the Rav of the city from the tzedakah fund, for it is a disgrace to him and also to the people of the city. Rather, they should provide him with support from another source. However, every individual may send him from his own tzedakah, for this is a way of honor. Thus far his words. For it is taught in the Tosefta of Niddah (chapter six): Anyone who takes tzedakah takes ma'aser ani. And there is one who takes ma'aser ani and does not take tzedakah, see there. And this is if he is a talmid chacham, for it is shameful for him to take tzedakah which is a publicized matter, but not so ma'aser ani which is sent to him from the threshing floor and the matter is not noticeable. And as it is taught in the Tosefta of Peah: Ma'aser ani is given to a chaver as a favor, see there. Therefore, if the Rav takes a permanent salary from the tzedakah fund, the matter will be publicized and there is a disgrace in this. But when every individual sends to him from his house, the matter is not noticeable that this is from tzedakah, and it is similar to ma'aser ani. And one should not ask: After they provide him with support, why does he need tzedakah? For it can be said, for example, that the support is not sufficient for all his needs. And from this it can be learned that from tzedakah one may give even to someone who requires great expenditure with abundance.

The Rosh further responded: That they may divert funds even from money designated for Talmud Torah for the needs of the governor, regarding what they give him every year, because this is the saving of lives. For if they do not reach a settlement with him, there are many poor people who have nothing to give, and they will strike them and strip them naked. And nothing stands in the way of pikuach nefesh. And even though there is more merit for one who engages in Torah than for one who engages in the saving of lives, as it is stated at the end of the first chapter of Megillah, nevertheless, the obligation for pikuach nefesh is greater, and one cancels Talmud Torah for this (see Taz, subsection 6). And now in the countries of Europe in the days of benevolent kings, such evil occurrences do not happen, thanks be to Hashem.