Maaser kesafim
[1] (Halacha 708)
Question: What is the source for ma'aser kesafim?
Answer: We already find the separation of ma'asros among the holy Avos, as the Ramban wrote1: 'For the Avos were like the nobles of the peoples in giving ma'asros to the poor, or to the priests of Hashem, such as Shem and Ever and their disciples, as in the matter of "והוא כהן לאל עליון" ("and he was a priest to the Most High God").'
a) Avraham Avinu: It is stated regarding Avraham Avinu, after he defeated the kings, that he gave a tithe to Malki-Tzedek king of Shalem2: 'וברוך א-ל עליון אשר מגן צריך בידך ויתן לו מעשר מכל' ("And blessed be the Most High God who delivered your foes into your hand — and he gave him a tithe of everything").
And it is written in Pirkei d'Rabbi Eliezer3: 'Rabbi Yehoshua ben Korchah says: Avraham was the first to tithe in the world, taking the entire tithe of Sodom and Amorah and all the tithe of Lot his nephew, and he gave it to Shem son of Noach, as it says "and he gave him a tithe of everything".'
And the Panim Yafos on the Torah wrote: 'And according to its plain sense it implies that he gave him a tithe of all the property he brought, and it is an allusion to the ma'aser that a person must separate from his possessions for Heaven, as we find by Yaakov, and as is stated in Yoreh De'ah [siman 249] in the laws of tzedakah.'
b) Yitzchak Avinu: It is stated regarding Yitzchak Avinu4: 'ויזרע יצחק בארץ ההוא וימצא בשנה ההוא מאה שערים ויברכהו ה' ("And Yitzchak sowed in that land and found in that year a hundredfold, and Hashem blessed him").
And it is written in Pirkei d'Rabbi Eliezer5: 'It is written "And Yitzchak sowed in that land"; Rabbi Eliezer says: Did Yitzchak, Heaven forbid, [merely] sow grain? Rather, he took the entire tithe of his money and sowed tzedakah for the poor, as it says "sow for yourselves for tzedakah"; and everything from which he tithed, Hakadosh Baruch Hu brought him a hundredfold of money and blessed him — therefore it says "and Hashem blessed him".'
c) Yaakov Avinu: It is stated regarding Yaakov Avinu6: 'וכל אשר תתן לי עשר אעשרנו לך' ("And of all that You give me I shall surely tithe to You").
And in Daas Zekeinim MiBaalei HaTosafos they wrote: '"And of all that You give me." Midrash: Yaakov instituted giving a tithe from money, and we say in Bereishis Rabbah that a certain heretic asked Rabbi Yehoshua ben Levi: Where do we find that Yaakov tithed his sons? He said to him: Levi, whom he sanctified to Heaven. He said to him: And why did he see fit to sanctify Levi, when he was not the tenth? He said to him: Because Yaakov treated all his sons like lambs entering the pen to be tithed, and counted them by their order of birth, etc.'
And the Radak wrote: '"And of all that You give me I shall surely tithe to You" — meaning, I shall give a tithe from the property and the livestock that You give me, and I shall give it to people who are in need, from among those who fear God and serve Him.'
And this is the wording of the Pesikta Zutrasa7: 'And He chose Avraham Avinu in the tenth generation from Noach, who was the first to institute ma'asros, as it is written "and he gave him a tithe of everything"; and so too he commanded his sons to give ma'asros. Yitzchak — why did he measure a hundredfold? In order to give ma'asros. Yaakov — "I shall surely tithe to You". And so too all of Yisrael, the tithe of grain, wine, and oil.'
[However, it should be noted that although it was brought above simply that the first was Avraham Avinu, we nevertheless find that the Rishonim disagreed on this matter, for the Rambam8 wrote that the first was Yitzchak: 'Concerning six things Adam HaRishon was commanded .. an additional one was given to Noach, the limb of a living animal .. Avraham came and was commanded, beyond these, regarding circumcision, and he prayed Shacharis; and Yitzchak separated ma'aser and added another tefillah toward the end of the day ..'.
But the Raavad took issue with him, and wrote that the first was Avraham: 'A.A. [Avraham Avinu] — thus it would have been fitting to say: and he [=Avraham] prayed Shacharis and separated ma'aser, and Yitzchak added another tefillah.' And the commentators wrote several approaches to explain why, according to the Rambam, one cannot say it was Avraham9].
And likewise we find among the Rishonim who derived the mitzvah of ma'aser from the verse10 "עשר תעשר" ("you shall surely tithe"), as Tosafos wrote11: '"עשר תעשר" — so it is in the Sifri12: "עשר תעשר את כל תבואת זרעך היוצא השדה שנה שנה" ("you shall surely tithe all the produce of your seed, that which comes forth from the field, year by year") — I would know only [to include] the produce of your seed, which is obligated in ma'aser; interest and commerce and all other profits, from where [do we derive them]? The verse states "את כל" ("all") — for it could have said "את תבואתך" ("your produce"); what is [meant by] "all"? To include interest and commerce and everything by which one profits.'
Concerning the separation of ma'asros, the Rebbe wrote13: 'The general meaning of the mitzvah of ma'aser, which one is obligated to give to the Levi, and likewise of ma'aser kesafim which is to be given to tzedakah, is "לה' הארץ ומלואה" ("the earth is Hashem's, and all it contains") — that everything a Jew possesses belongs to Hashem. Therefore he must first and foremost give a tenth of the choicest to the Levi, whose "portion is Hashem", and only afterward may he use the other portions for his own needs.'
In the next halacha we shall see the words of the poskim regarding these sources — whether they are an actual derivation, or whether they are an asmachta and there is no obligation from the Torah.
--------------
Notes:
1 תולדות כו, ה ↩
2 לך לך יד, כ ↩
3 פכ"ז ↩
4 תולדות כו, יב ↩
5 פל"ג ↩
6 ויצא כח, כב ↩
7 (לקח טוב) בראשית פ"א פסוק א ↩
8 הל' מלכים פ"ט ה"א ↩
9 ראה מגדל עז, רדב"ז, כס"מ, שו"ת חת"ס יו"ד סי' רלב. ובאריכות בלקו"ש ח"ה לך לך ב ↩
10 ראה יד, כב ↩
11 תענית ט, א ↩
12 וראה בבכ"י שבספרי שלפנינו לא נמצא ↩
13 לקו"ש שם ס"ד ↩
[2] (Halacha 709)
Question: Is ma'aser kesafim an obligation from the Torah or Rabbinic?
Answer: We saw in the previous halacha (number 708) that Tosafos brought the Sifri, which derives ma'aser kesafim from the verse "עשר תעשר", and from the plain sense of the matter it is understood that this is a complete derashah and there is an obligation de'oraysa. However, below we shall see that the poskim disagree on this, as follows:
a) De'oraysa - Some poskim wrote, following the plain sense of the derashah of the Sifri, that ma'aser kesafim is de'oraysa, as the Chasam Sofer wrote1 in the view of the Maharil: 'For in a responsum the Maharil concluded only "to give it to the poor from their ma'aser" — thus one who does any mitzvah [with it] robs the poor, unless it is to sustain the poor, for the Maharil holds that the obligation to separate ma'aser kesafim is literally de'oraysa2 and belongs to the poor, and the owner has in it only the benefit of choosing which poor person he wishes.'
And in the Responsa Teshuvah Me'Ahavah3 he wrote: 'And behold, according to the view of the Gaon Moharar David Oppenheim, Av Beis Din of the holy community of Prague, may his memory be for the life of the World to Come, ma'aser kesafim has support from the Torah, "עשר תעשר", based on the Sifri cited in Tosafos, and in any case it is Rabbinic, as explained in the Responsa Chavos Yair.'
And so it appears from the words of the Shaar Efraim4, who brought the Sifri. And his son wrote in a gloss: 'And this is for Yehudah, and he shall say: What the Bach wrote in Yoreh De'ah — that regarding the ma'aser of our money there is no obligation, neither from the Torah nor Rabbinic (see there siman 331) — the aforementioned Sifri escaped him; and see what the Taz wrote in the aforementioned siman, seif katan 31, and wondered at him; and it appears that from him too the aforementioned Sifri was hidden, see there.'
And so several Acharonim wrote in the view of the Taz5, who wrote: 'It appears that one should compare the ma'aser separated from the profit of money to the law of ma'aser ani of grain and produce; and my father-in-law and teacher, of blessed memory, wrote that the ma'aser of our money has no obligation, neither from the Torah nor Rabbinic. And I wondered, for in the beginning of siman 249 it is explained that it is a full obligation, as all the poskim wrote, and the Beis Yosef in the name of the Yerushalmi.'
And the Responsa Rivam Schneituch6 wrote: 'Especially according to what the Taz wrote in siman 331, seif katan 32, that ma'aser kesafim nowadays is de'oraysa or like de'oraysa.' And so wrote the Aruch HaShulchan7.
And there is one who wrote8 that only in Eretz Yisrael is it de'oraysa.
b) Derabbanan (Rabbinic): - Some wrote that it is a mitzvah derabbanan9, as the Maharil wrote10: 'And for this reason, regarding ma'aser kesafim, which is Rabbinic, the great one, Moharai Oppenheim, permitted in a responsum to feed one's father and mother [from it], for with something de'oraysa a curse would come upon him.' And so wrote the Responsa Maharil HaChadashos11: 'For the enactment of the Sages takes precedence over ma'aser kesafim, which is Rabbinic'.
And so wrote the Chida12 in his name: 'And it certainly appears that ma'aser kesafim is not of the category of the mitzvah of ma'aser ani; rather, [regarding] the obligation of tzedakah they said that one should tithe a tenth of his possessions, [and] the Rambam and the Tur already mentioned it, and they said that the middle measure is one-tenth, and it is from the aforementioned Sifri and Tanchuma, which supported it by a verse (asmachta), and it is Rabbinic, as a matter of tzedakah. And the Sifri and Tanchuma too are a matter of tzedakah, as we said, since from them the Rambam and the Tur derived .. And in Knesses HaGedolah he wrote in the name of the responsum of the Maharil, siman 54 (and 57) and 56, letter 7, that ma'aser kesafim is Rabbinic. See there.'
And so too the Derishah13 brought from the commentary of the Maharshal on the Tur in the name of the Maharam. And so wrote the Noda BiYehudah14.
c) Minhag (custom): - Some wrote that it is only a minhag, as the Maharam of Rothenburg wrote15: 'It appears that ma'aser money, after they have taken hold [of the practice] to give it to the poor, may not be diverted to another mitzvah, for it appears as robbing the poor; for even though it is not from the Torah but a minhag, we hold that things which are permitted but which others treat as forbidden — you are not permitted to permit them in their presence, as it says "he shall not profane his word", and "he shall not profane" is Rabbinic .. But ma'aser kesafim money — the poor have already acquired rights in it through the minhag that all the diaspora has practiced'.
And so wrote the Bach16: 'However, this is only regarding ma'aser ani from the produce of the land, which is a positive Torah commandment; but that which a person tithes from what he profits in business, such as money and other profits, is not included in this, and he may give from it to tzedakah and for the redemption of captives, for he is not obligated in it, neither from the Torah nor Rabbinic.'
And so wrote additional poskim17 that it is a minhag.
And furthermore, the Chavos Yair wrote18: 'And if it were Rabbinic, the holy people of Yisrael would not be lenient in it, to the point that only one in a city and two in a family are careful with it.'
But even according to the opinions that it is a minhag, the Yaavetz wrote19 that since one has already practiced it, it has become an obligation, and this is his wording: 'But if he practiced it thus on his own even once, it has already become a vow and he cannot annul it; and even by way of the minhag of the father, where it was customary [to give] ma'aser kesafim forever, one becomes obligated because of "do not forsake".'
Thus we have seen that the poskim disagree whether the separation of ma'asros is an obligation from the Torah, or Rabbinic, or only a minhag. In the next halacha we shall see the approach of our Rebbeim, the Nesi'im.
Notes:
1 שו"ת ח"ב יו"ד סי' רלב ↩
2 אך כבר תמהו האחרונים על החת"ס (ראה שו"ת פרי יצחק ח"ב סי' כז) שמפורש במהרי"ל שזה אפילו לא חיוב דרבנן אלא רק מנהג, וכפי שיובא לקמן ↩
3 ח"א סי' פז ↩
4 שו"ת סי' פד ↩
5 יו"ד סי' שלא ס"ק לב ↩
6 יו"ד סי' נג ↩
7 סי' רמט ס"ה. וכ"כ בחיי הלוי ח"ב סי' סב ↩
8 שו"ת ר' ידידיה טיאה ווייל סי' ס ↩
9 וכתבו הפוסקים שדי"ל שדרשת הספרי היא אסמכתא וראה ג"כ לקו"ש ח"ה לך לך שיחה ב הערה 13 ↩
10 שו"ת סי' נד ↩
11 סי' קנב ↩
12 ברכ"י יו"ד סי' רמט ס"ק ג ↩
13 יו"ד סי' רמ ס"ק ד ↩
14 מהדו"ק יו"ד סי' עג ↩
15 שו"ת (דפוס פראג) סי' עד ↩
16 יו"ד סי' שלא ↩
17 ראה הנסמן בפסקים ותשובות סי' רמט אות כא הערה 177 ↩
18 סי' רכד ↩
19 שאילת יעב"ץ סי' ו ↩
[3] (Halacha 710)
We learned in the previous halachos that the separation of ma'aser kesafim is a practice that the holy Avos — Avraham, Yitzchak, and Yaakov — already followed, and the poskim disagree whether from the derashah of the Sifri on the verse "עשר תעשר" we learn that it is an obligation de'oraysa, or whether the derashah is an asmachta and the obligation is Rabbinic, or whether it is only a good minhag that the people of Yisrael took upon themselves.
Question: What is the approach of our Rebbeim, the Nesi'im?
Answer: The Rebbe, in the sichah of Chai Elul 57221, explained the approach of the Alter Rebbe, that it is Rabbinic: 'And a further matter in connection with this, relating to "ma'aser kesafim", as many are accustomed to separate ma'aser kesafim (and this has a basis, and even more than a "basis", in Shulchan Aruch): may one take from ma'aser kesafim for the aforementioned giving of tzedakah [=tzedakah for matters connected to the Alter Rebbe, the printing of his works, and support for the institutions that study his teachings]? In Shulchan Aruch, Hilchos Tzedakah, we find two opinions whether it is permitted to use ma'aser money for a matter of mitzvah, such as to purchase an aliyah or the acquisition of seforim and the like, or whether one is obligated to give it specifically to the poor. And the matter depends on the nature of the obligation of ma'aser kesafim: according to the opinion that ma'aser kesafim has a basis in the Torah, to the point that the obligation of ma'aser kesafim is de'oraysa, then the Torah has granted and given this money to the poor, and therefore it is forbidden to use it for other matters of mitzvah; this is not so according to the opinion that the obligation of ma'aser kesafim is not a mitzvah de'oraysa but only Rabbinic. And even according to the opinion that ma'aser kesafim is only Rabbinic, we find a distinction: whether he has already separated the ma'aser money, in which case the poor already have a right in it, and he cannot take from it for other matters of mitzvah; or whether he has not yet separated the money, and when he purchases the aliyah or the seforim he intends to use the ma'aser money that he will separate in the future. And a further distinction: if, without using the ma'aser money, he is unable to fulfill the mitzvah and would not perform it, then it is permitted to use the ma'aser money. Now, in the Shulchan Aruch of the Alter Rebbe there are no Hilchos Tzedakah; nevertheless, we see that the Shulchan Aruch of the Alter Rebbe is in the category of "a city in which everything is contained", for it contains a solution to know his approach on this matter: regarding the expenses of teaching his grown sons, which he is not obligated in according to Shulchan Aruch (unlike his young sons, as the Alter Rebbe wrote at the beginning of Hilchos Talmud Torah: "It is a positive Torah commandment upon the father to teach his young son Torah .. as it says 'and you shall teach them to your sons to speak of them'", first the Written Torah etc., as explained there in detail), the Alter Rebbe writes in his Hilchos Talmud Torah: "He may pay all the expenses of teaching his grown sons from his ma'aser money .. if he cannot afford it." And from this it is implied that the view of the Alter Rebbe is that ma'aser kesafim is not from the Torah, for [if it were,] the poor would acquire rights in it, and he would not be able to use the ma'aser money for the expenses of teaching his sons; and likewise the Alter Rebbe does not hold that there is a distinction whether he has already separated the ma'aser money or not yet separated it, for he did not mention this distinction regarding the use of ma'aser money for the expenses of teaching his sons .. And nevertheless, since it is possible that there will be those who wish to use ma'aser kesafim money for the aforementioned giving, then according to the view of the Alter Rebbe that "he may pay all the expenses of teaching his grown sons from his ma'aser money", it is permitted to use the ma'aser money also for the printing of seforim, for that too is called tzedakah, as it is stated in the Gemara "and his tzedakah endures forever .. this is one who writes Tanach and lends it to others", and similarly the printing of seforim ..'.
Thus, according to the approach of the Alter Rebbe, ma'aser kesafim is not de'oraysa but Rabbinic.
And we find among our Rebbeim, the Nesi'im, that there is an emphasis on care with ma'aser kesafim among the community of Chassidim, as the Rebbe Rayatz wrote2: 'It is explained in the poskim that although the essence of the mitzvah of ma'aser is with the produce of the land and not ma'aser kesafim, nevertheless many say that ma'aser kesafim too is included in the blessing, on account of which a man is blessed — one who fears God, who builds his livelihood upon the foundations of the Torah, and all the more so the children of Chassidim, and Chassidim whose way in life, also in the life of the World [to Come], is ordered by our holy fathers, our Rebbeim .. who said that every businessman should set fixed times for Torah, each according to what he is able .. and should take upon himself to separate a tithe from the profit which Hashem gives him in abundant measure in His great kindness, and He will grant him success in all his matters. From the ma'aser money he may give for all matters of tzedakah, as explained in its place.'
And the Rebbe3 writes: 'Regarding what you wrote about giving ma'aser to tzedakah, the question is somewhat astonishing, since the matter is [set down] in Shulchan Aruch, and especially within the community of Chassidim; and on the contrary, if, as in his words, they cannot manage on their salary as until now, then the place and counsel is the counsel of Chazal: "salt for money is diminution [i.e., charity preserves wealth]", and not the reverse, Heaven forbid.'
And we find that the Rebbe attributed troubles that befell a Jew to a lack of care with ma'asros4: 'And regarding what you write, that about a year ago you bought a house in another neighborhood... and you always have troubles, etc. — many times this happens when one is not careful with the separation of ma'aser, at least ma'aser to tzedakah from the profits of this house; and if in your case too this is the matter — that is to say, that until now you have not separated ma'aser (and the well-known saying of Chazal is that one is not exacting in tzedakah — and that therefore one should add at least a little more than the ma'aser) — it is understood that first of all this must be rectified, and it is best to make up what was lacking in ma'aser to tzedakah in the months that have passed; and since Hakadosh Baruch Hu says regarding tzedakah "and test Me now in this", and the well-known derashah of Chazal is "tithe (aser) so that you become wealthy (tis'asher)", this promise will surely be fulfilled in your case as well.'
The Rebbe answered a businessman5: 'It is worthwhile to bring Hashem in, as it were, as a partner, by giving ma'aser from the net profit to tzedakah in the country of the business.'
--
Notes:
1 תו"מ חל"ד ע' 272 ואילך ↩
2 אג"ק ח"י ע' תי ↩
3 אג"ק חט"ז ע' רצ ↩
4 אג"ק חט"ז ע' קא ↩
5 צדיק למלך ח"ז ע' 243 ↩
[4] (Halacha 711)
Question: Must a person who received an object as a gift separate ma'aser from it?
Answer: In the previous halachos we brought what Tosafos wrote1 in the name of the Sifri: '"עשר תעשר" — so it is in the Sifri: "עשר תעשר את כל תבואת זרעך היוצא השדה שנה שנה" ("you shall surely tithe all the produce of your seed, that which comes forth from the field, year by year") — I would know only [to include] the produce of your seed, which is obligated in ma'aser; interest and commerce and all other profits, from where [do we derive them]? The verse states "את כל" ("all") — for it could have said "את תבואתך" ("your produce"); what is [meant by] "all"? to include interest and commerce and everything by which one profits'.
And in Sefer HaYirah of Rabbeinu Yonah it is written: 'And regarding ma'asros, do not slacken your hand from taking it properly. How so? From everything by which one earns — whether by teaching, whether by writing, whether by doing labor, or even if he found a lost object or it was given to him as a gift, or any matter that comes his way, whether silver or gold — from all of it he shall separate ma'aser, for this matter has no equal, for that which the Creator forbade — testing Him in any matter — He permitted with ma'aser.'
And in Sefer Chasidim2 it is written: '"Bring the whole ma'aser to the storehouse etc., and test Me now in this" (Malachi 3:10) — great is the separation of ma'aser, for Hakadosh Baruch Hu said "test Me" [with it], more than all other matters, in which it is forbidden to test Him, as it says (Devarim 6:16) "do not test Hashem your God." That ma'aser is ma'aser ani, to give to the poor a tithe of all that a person profits, whether from interest, whether by hiring himself out, whether from all matters that come to a person's hand as profit; if he found stolen goods or stolen goods were brought to him, he must tithe and separate as is written in the verse. For as yet Yisrael did not exist among the nations of the world lending at interest. And woe to those who withhold their ma'asros, for in the end nothing will remain in their hand except the ma'aser, and this is what is written (Bamidbar 5:10) "and a man's holy things shall be his".'
Thus we have seen that a person must separate ma'aser from every profit that comes to him.
And some wrote that from these words we learn that one must separate ma'aser not only from money he has earned, but also from objects that a person receives as a gift.
And some made this ruling dependent on the dispute whether the obligation of ma'aser is de'oraysa or is only a minhag, as the Mishneh Halachos wrote3: 'And regarding what you asked, whether one is obligated to separate ma'aser also from objects he received as a gift — at first glance it appears that he is obligated, and one may rely on the verse in which Yaakov Avinu said "if God will be with me etc., and of all that You give me I shall surely tithe to You", and "all" is written [to] include everything, for the term "all" implies both money and other gifts; and see the Taz Yoreh De'ah siman 331 seif katan 32. And from here it appears to me a support for the practice of compelling the groom, at the time he receives his dowry, to give ma'aser, as we find that they take it from his hand — except that they distribute the ma'aser to the relatives of the groom and bride, who take precedence over other poor. And see the Shach there; and "dowry" implies that all he receives as dowry he is obligated to tithe; and if so, if he receives gifts he is likewise obligated to tithe, for that too is included in his money. However, in any case I have not heard that people tithe objects as well, nor have they conducted themselves stringently in this matter, but leniently, and perhaps this matter depends on the dispute of the Rishonim .. Afterward Hashem enlightened my eyes and I found in Sefer HaYirah of Rabbeinu Yonah .. and this is his wording: "And regarding the ma'asros, do not slacken your hand from taking it properly; how so? From everything by which one earns — whether by studying, whether by writing, whether by doing labor, or even if he found a lost object or it was given to him as a gift, or any matter that comes, whether silver or gold — from all of it he shall separate ma'aser, for this matter has no equal, for that which the Creator forbade — testing Him in any matter — He permitted with ma'aser" [end of the holy wording]. And since he wrote "and from everything by which one earns", and included a lost object and a gift or any matter that comes, whether silver or gold — from all of it he shall separate ma'aser, and did not write "coin", it is explicit that one must separate from everything.] And according to the view of the Gaon Rav David, that we derive it from a verse, and there objects too are perforce included, then one tithes objects too; but if we say that it is only a minhag, then one may say that so they practiced, and see Pischei Teshuvah siman 331 letter 12 and what he cited there. In any case it appears that one who practices ma'aser kesafim must separate from objects too, and also from what he received.'
And some of the Acharonim held this way in practice4, as HaGaon Rav Shlomo Zalman Auerbach wrote5: 'How does one tithe an object such as a diamond or a book that was given to him as salary or as a gift? Answer: He need not borrow from others or sell the object in order to give the ma'aser; rather, he pays only when he converts them into money or sells them. But if he has money, he must give ma'aser from the money he has immediately.'
But in practice many poskim wrote that the actual minhag is that one does not separate ma'aser from land or real estate6, nor from objects7 that were received as a gift, but only from money8, as Yad HaLevi wrote there in the name of the Maharmak: 'Regarding whether the groom must separate ma'aser from the gifts given to him — the minhag here is not to separate, and so I did in practice'9.
Thus we have seen that one must separate ma'aser from every profit, and some obligated giving the value of the ma'aser also from objects he received; but in practice many did not conduct themselves this way.
--------------
Notes:
1 תענית ט, א ↩
2 מהדורת מרגליות סי' קמד ↩
3 שו"ת ח"ו סי' קצט אות ג, וראה גם מש"כ בחי"ב סי' רמא ↩
4 ראה יד הלוי יו"ד סי' מד, וראה המעיין יט, ב שאכן כך הקפיד למעשה הרב במברגר. וראה אבן ישראל ח"ט סי' צב אות יג: 'מה ששאל אי גם ממתנות לא של כסף אי צריך לעשר, צריך לעשר! אלא אם לא ניתן לו רק לאשתו ובניו א"צ לעשר' ↩
5 קובץ קול תורה חל"ט סי' ה ↩
6 ראה יוסף אומץ ח"ב פרק הצדקה והמעשר. יד הלוי שם, וראה שו"ת שבט הלוי ח"ה סי' קלג ↩
7 ראה חשב האפוד ח"ג סי' לד. וראה גם צדקה ומשפט (בלוי) פ"ה ה"ד. וראה גם הליכות בין אדם לחברו פי"ב אות יא ↩
8 ויש שהעירו שכך פשטות הלשון שנקרא מעשר כספים. ראה אבני ישפה ח"א יו"ד סי' קצא וכתב שגם דברי ספרי הנ"ל פרקמטיא י"ל שהכוונה מכסף שעושה איתו עסק. וכן מש"כ בספר חסידים מציאה י"ל שהכוונה למציאת מעות ↩
9 אך ממשיך שם 'ואפשר להטעים, שדרך הנשים פה להחזיק בדורונות לעצמן ואין לבעל חלק בהם, גם הדעת נוטה שדומה להלוואה כמו שושבנתי' (ב"ב דף קמה) שאם אירע נישואין לאחד מן הנותנין וצריך המקבל גם הוא לשלם לו דורון', וראה שם דברי היד הלוי על זה ↩
[5] (Halacha 712)
Question: Must one separate only from the profits or also from the principal?
Answer: It is written in the Talmud Yerushalmi1: 'And another said [Mishlei 3:9] "כבד את ה' מהונך ומראשית כל תבואתך" ("honor Hashem from your wealth and from the first of all your produce") — "like the first of all your produce". Rabbi Gamliel ben Aininua asked before Rabbi Mana: A fifth every single year — over five years he loses all of it! He said to him: At first from the principal, from then on from the profit'.
And from the plain wording of the Yerushalmi it is understood that one must first separate from the principal, and afterward, when there are profits, to separate from them.
And in the Responsa Avkas Rochel2 he wrote, in a responsum to one of the early Acharonim3: ' .. And I shall preface and say that there is no doubt that, since the matter of separating ma'aser from money is a very great thing — to the point that Chazal said (Shabbos 119a) "עשר תעשר" — tithe (aser) so that you become wealthy (tis'asher), and it is permitted to test Hashem in this mitzvah and to transgress the prohibition of "do not test" etc. .. therefore one must be exacting in the performance of this mitzvah, so that at the time one uproots the prohibition of "do not test", one fulfills the positive commandment of "that which comes from your lips", which is tzedakah, as they expounded in the first chapter of Rosh Hashanah (6a). And since there are people who separate ma'aser from their money but not properly — for at first they do not separate from the principal until they profit, and what they profit they do not separate from the profit, but only what they profit beyond their expenses for food, drink, clothing, and other things needed for expenditure, and from the surplus they separate — to this I say that they do not thereby fulfill their obligation. For one must first, in order that it be permitted to test Hashem with it and that he merit thereby the level of wealth, make an accounting of all that he has, including the principal, and from every ten separate one, no less and no more. And if some surplus remains that does not reach a count of ten, he shall place it in a purse by itself and not mix it with the rest. And after he has separated from the principal, he shall do business with his money, and every half-year make his accounting and see what he profited beyond all that he expended on things needed for the household, as it says "and he took a tithe", as we said. And if he wishes to do even more, he shall wait to make his accounting until the end of the year and separate a fifth from the profit, after having first separated from the principal. And so it is written explicitly in the Yerushalmi regarding ma'asros: the first year from the principal, from then on every single year a fifth from the profit — and these are two tithes, as in the matter of what Yaakov said: "and of all that You give me I shall surely tithe to You" [end of quote]'.
Thus we have seen that a person who has a profit must separate ma'aser; but when he goes back and does business with this money and profits again, he need not tithe from the principal, but must tithe only from the additional profit.
And in halacha the Mechaber wrote4 regarding the mitzvah of tzedakah: 'The measure of its giving: if he can afford it, he shall give according to the need of the poor. And if he cannot afford so much, he shall give up to a fifth of his possessions — that is the choicest mitzvah; and one-tenth is the middle measure; less than this is a "bad eye". And this fifth of which they spoke — the first year from the principal, from then on a fifth of what he profited each year'.
And the Shach wrote5: '"And this fifth of which they spoke etc." And it appears that the same applies to ma'aser for the "middle" person, who in the first year gives ma'aser from the principal, and thereafter ma'aser from the profit, and so it is implied in the Prishah seif 3.'
★ ★ ★
Question: Are the ma'asros given after deducting household expenses?
Answer: In the aforementioned responsum in the Responsa Avkas Rochel, he wrote that one may not deduct household expenses before the ma'aser; however, at the conclusion of his words it is implied from him that he does deduct the expenses of the ma'aser, as they wondered at him in the Responsa Beis Dino Shel Shlomo6, and as the Chida wondered7; and both of them alike wrote to explain his words (at least with difficulty) that he too holds that one does not deduct household expenses. And so they ruled in practice, as the Responsa Beis Dino Shel Shlomo wrote there: 'And to the fifteenth question — whether one must give ma'aser from all the profit he earns, or, after deducting the expenses of his household and his sons, whatever remains he gives ma'aser from it alone and need not spend on everything — on this it appears to me in my humble opinion that one must give ma'aser from all the profit he earned, for he shall not deduct his expenses, but shall pay full payment at the outset'.
On the other hand, in the Responsa Sho'el VeNishal8 he disagreed with the Chida, and wrote: 'And in any case, since the very law of ma'aser kesafim is subject to dispute .. we hold that a doubt in a Rabbinic matter is [decided] leniently. And all the more so it is fitting and proper to rule like the view of Maran in the aforementioned responsum, as a practical ruling for the public ..'.
And so wrote the Kitzur Shulchan Aruch9: 'How much tzedakah shall a person give? The first year, ma'aser from the principal; from then on he gives ma'aser from the profit he earned each year, apart from the needs of his household — this is the middle measure.' And so wrote several Acharonim10.
But in practice many poskim ruled like the view of the Chida, that one may not deduct household expenses, as the Aruch HaShulchan wrote11: 'But his household expenses he shall not deduct; therefore one who earns a thousand gold coins a year gives one hundred or two hundred to tzedakah — even though he is a man of expenses in his household exceeding a thousand gold coins, nevertheless he is obligated to give ma'aser from the profit.' And so wrote the Responsa Avnei Tzedek12. And the Responsa Yismach Levav13. And the Responsa Minchas Yitzchak14. And so ruled Tzedakah U'Mishpat15.
[However, some distinguished: between one who has difficulty supporting his family, who may rely on those who are lenient and deduct the expenses, and one who lives in comfort, who shall not deduct the expenses, as the Responsa Shevet HaLevi wrote16: 'And my way is to rule that those of small livelihood, who press themselves to fulfill the mitzvah of ma'aser kesafim, should act like the Knesses HaGedolah and deduct the household expenses etc.; but those of large livelihood should be stringent from the outset like the Birkei Yosef'].
--------------
Notes:
1 פאה פ"א ה"א ↩
2 סי' ג ↩
3 בשיירי כנה"ג הגה"ט יו"ד סי' רמט הביא תשובה זו בשם הרב מתתיה טריויש בתשובה כ"י. וכתב החיד"א בברכי יוסף יו"ד סי' רמט ס"ק ה: 'ובתשובות מרן כ"י בקצת תשובות שבידי מצאתי תשובה זו באורך, ושם כל הלשון שהביא הרב כנה"ג משם תשובת ה"ר מתתיה וחתום בסוף התשובה מרן ז"ל, ואנחנו לא נדע קושטא דמילתא תשובה זו היולדה והמחזיקה מאן גברא רבא הוא'. ובשיו"ב יו"ד סי' רמט ס"ק ב: 'והן עתה נוטה דעתי שאינה מתורת מרן, ויש לי סמוכות על זה, ואין ראיה דחתים עלה מרן, כי כזה וכזה עושים המעתיקים כאשר נתברר לי כמה זימני'. אך ראה בשו"ת שואל ונשאל ח"ב סי' ק"ס דחה את דברי החיד"א, וכתב שהיא של הב"י ↩
4 שו"ע יו"ד סי' רמט ס"א ↩
5 ס"ק ב ↩
6 יו"ד סי' א ↩
7 ברכ"י שם ↩
8 ח"ב סי' קס ↩
9 סי' לד ס"ד ↩
10 ראה שו"ת תועפות ראם סי' צ"א. שו"ת מהר"ם ברודא סי' יד. שו"ת קנין תורה סי' קב. שו"ת ציץ אליעזר ח"י סי' ו ↩
11 יו"ד סי' רמט ס"ז ↩
12 יו"ד סי' קמא ↩
13 חיו"ד סי' לא ↩
14 ח"ה סי' לה ↩
15 פ"ה ה"ח ↩
16 ח"ה סי' קלג ד. ועד"ז כתב בשו"ת יחו"ד ח"ג סי' עו ↩
[6] (Halacha 713)
Question: In the previous halacha we saw that according to many poskim one cannot deduct household expenses before separating the ma'asros; what is the ruling regarding deducting business expenses?
Answer: The Gaon Rav David Oppenheim wrote1: '.. For certainly, that which a person spends as expenses on the merchandise is [part of] the principal and is repaid first .. But as for what is by way of doing business and he has expenses, one may say that regarding this it is obvious that the expenses are reckoned as part of the principal, and the profits that arise thereafter are called "new" (chidush), and from them he must separate .. And if so, it is obvious that he deducts the amount of the expenses and they are called principal, and thereafter, whatever arises as profits from them, after deducting the principal and the expenses — which too are called principal — he separates one in ten'.
And the Gaon, author of the Chavos Yair2, wrote that with ma'aser kesafim one is considered a partner with Hakadosh Baruch Hu, and just as in a partnership one deducts from the profit the expenses and the losses that were not through negligence, and afterward the partners divide the profits, so too with ma'asros. And this is his wording: 'How could it enter one's mind that he should not deduct the expense? For if so, if some of the people of Yisrael who go down to the sea in ships to distant islands travel to bring gold from Ophir and Chavilah, and precious stones from the eastern lands, greater Tartary, or from India .. to bring tusks of ivory and ebony, monkeys and parrots, myrrh and aloes, cane and cassia and cinnamon, ambergris, and things of great and precious virtue, and they lay out expenses of thousands and tens of thousands — and an example of this: those who bring esrogim from very far .. and all these that we mentioned, if they tithe the proceeds of their sale beyond the price of their purchase and do not deduct the expenses, they would not profit at all .. And with ma'aser kesafim it is not comparable to a fixed tenth-portion incumbent upon him, but rather like a partner with Hakadosh Baruch Hu, that when it comes to the accounting, the businessman deducts all the loss and expense that occurred in that business in whatever manner it was — even theft, loss, and robbery — provided he was not negligent; for the business-partnership binds them mutually for the time they set. And it is taught in the Gemara, and it is in the Tur and Shulchan Aruch, Choshen Mishpat siman 227 seif 28: "one who transacts on trust deducts for himself the hire of a donkey, the hire of a camel etc.; the hire of himself he does not credit to him etc." And, with the help of Heaven, I have innovated two matters in this, through a case that came before me, when one of the partners contested his fellow's accounting on two matters. The first: that in his accounting there was a new garment he made for himself when traveling to a certain distant fair — and so he shall not do, for in any case he needs a garment to wear. And the second: that he brings to the accounting the expense of the wages of workers who carry the merchandise from the ship to the city, and he reckoned also for himself, as a worker's wage, since he too toiled in this like the other workers, in order to receive wages .. And I ruled on the first that if it is a middling garment without silver buttons and the like, and it is the way of householders who go out for commerce to wear a garment ready for the road, in this the law is with him .. And on the second I ruled against him — for besides that his second claim contradicts the first (for if his intention is to be splendid in his garment, why should he demean himself ..), this one can say: I chose you as my partner precisely because I recognized that you do not honor yourself in such a manner, but rather as it says "better to be lightly esteemed and have a servant". And this too is certainly the case regarding ma'aser kesafim and all matters of commerce: he does not deduct what he wrote as workers' wages; but a garment which is for the need of the road he certainly deducts.'
The She'ilas Yaavetz3 also agreed regarding the law, and wrote: 'Except that one cannot be so stringent in it, since the words of those who say that it has no basis from the Torah appear correct .. and the Sages did not see fit to impose this obligation upon a person against his will, for it is a thing difficult to sustain, and it is not the way of everyone to disburse so much money, which does not "be fruitful and multiply" by its nature .. one cannot burden him with the statute of ma'aser except willingly, according to what the man is .. And having come to this, so too in our case of ma'aser kesafim, certainly a mere expression of intent suffices, that he may reckon also his own wage to deduct from the profit.'
However, in the Responsa Shvus Yaakov4 he wrote to distinguish: 'For certainly, if he travels to a market to buy known merchandise at the market site, or to sell there, and lays out the expense at the outset for this, for something readily available to buy or sell, then certainly the expense too is reckoned as part of the principal .. but one who travels to a market and does not intend to buy or sell, but only lays out expenses [in the hope that] perhaps a profit will come his way through brokerage or finds and the like — since he lays out the expense at the outset on speculation, like one who sows, which too is by way of a miracle (for how many mishaps befall it before it is harvested), so too here, one who profits through brokerage and finds — therefore he does not deduct the expense from it.'
But the Acharonim took issue with him, as Beis Dino Shel Shlomo wrote5: And I, in my poverty, it appears to my humble opinion that even one who goes on speculation to profit through brokerage and finds deducts the expenditures he lays out, and there is none who agrees with the Rav, nor the Chavos Yair'. And so wrote the Chida6 against the Shvus Yaakov in the name of the Beis Lechem Yehudah.
And in practice the Shevet HaLevi wrote7: 'And there is a second approach, which is apparently the consensus of the poskim, and so reason inclines, that taxes and the expenses of the trade — and included in this also what he must eat8, or to clothe himself for the sake of the trade, and likewise lodging and travel — all are deducted from the ma'aser kesafim obligation, since they are in the category of expenses.'
However, the poskim wrote that one should not buy things extravagantly, as Minchas Yitzchak wrote9: 'If also, for example, [one wishes] to buy a luxury car through which he would make a name for himself and would have greater influence in his trade and the like — behold, in the Responsa Chavos Yair there, in his comparison of the matter of ma'aser to a partnership, he wrote that if it is a middling garment without silver buttons and the like, and it is the way of those who go out for commerce to wear a garment ready for the road, in this the law is with him to deduct, in a partnership, and likewise with ma'aser, see there; thus he was precise and wrote "which has no silver buttons etc.", so we learn from this that one must be careful not to be extravagant in the matter'.
And so wrote Teshuvos VeHanhagos10: 'But if he spends on his travels to lodge in a luxury hotel or to eat in a luxury restaurant, he cannot deduct these expenses from the profits, and he is obligated to pay ma'aser on them. The expenses of a car that he drives only for business purposes are reckoned among the expenses of the trade; but if he bought a luxury car and there is not so much need for it in his trade, and his intention is mainly to display his honor and wealth, it is forbidden to deduct [it] from ma'aser money.'
Notes:
1 שו"ת נשאל דוד (הוצאת מכון חת"ס) יו"ד סי' כג ↩
2 שו"ת סי' רכד ↩
3 ח"א סי' ו. אך להעיר ממ"ש הפת"ש סי' רמט ס"ק א ↩
4 ח"ב סי' פו ↩
5 שו"ת יו"ד סי' א ↩
6 ברכ"י יו"ד סי' רמט ס"ק ו ↩
7 ח"ה סי' קלג ד. וראה ח"ט סי' רא ו ↩
8 הבית דינו של שלמה שם *הסתפק לגבי אכילה ושתיה שבכל מקרה אדם צריך לאכול כל יום גם בלי קשר לעסק:* 'אך לדידי מספקא לי על ההוצאות דאכילה ושתיה שאדם אוכל ושותה בלכתו לסחורה עד שובו לביתו אם מנכה אותם משום דמה לי הכא ומה לי התם הוא אוכל ושותה, אך מדברי הרב חו"י שם דמדמה ליה לשותף נראה דגם בהא מנכה שהרי גם בשותף נוהגים שמוציא הוצאות מן האמצע ועדיין הדבר ספק בידי ונראה שמנכה דוקא לפי חשבון ברכת ה'' ↩
9 שו"ת ח"ה סי' לד ו ↩
10 ח"א סי' תקס אות י ↩
[7] (Halacha 714)
Question: One who profited in one transaction and lost in another transaction?
Answer: The Leket Yosher wrote1: 'And one need not give ma'aser from each and every kind; for example, if he bought nard and saffron, or gold coins and small coins, and in one he has a profit and in one he has a loss, he gives ma'aser from the profit of the total'.
Except that it is not explained in his words whether this ruling applies also when the two businesses are separate businesses, in which too one may offset the loss against the profit.
However, in Yosef Ometz2 he wrote: 'And one should not reckon from business to business, to deduct from the profit he has from one business according to the loss he has in another business'.
And so wrote the Shvus Yaakov3: 'How did it escape him what Chazal said, "one does not tithe from one year for another", derived from the verse "that comes forth year by year"? And if so, since he compares this to actual ma'aser ani, it should be so with ma'aser kesafim as well — except that this is not comparable: for just as there one tithes only from produce grown in that year, so too regarding business one tithes only from that same [transaction of] business .. In any case, [offsetting] a loss from another source never entered my mind at all — to deduct the profit against a loss — except in a single transaction where he bought much at one time, which is a single account (maskana), which certainly binds them mutually; this is not so from one purchase to another purchase, for as soon as a profit arose for him he is obligated in ma'aser ani according to how he conducted himself, and if he lost elsewhere he does not make up his deficiency from another place, and all the more so, Heaven forbid, from that of the poor .. And to my humble opinion the essence is as I wrote; for where do we find such a thing regarding ma'aser ani of grain, that it never makes up the deficiency at all — rather only what comes out of this field must he give? And one who simply takes upon himself to give ma'aser kesafim should be careful with it according to the law of actual ma'aser, as I wrote in another responsum, and then there will be fulfilled in him "tithe so that you become wealthy — if I will not open for you etc."'
And so wrote Beis Dino Shel Shlomo4.
On the other hand, we find Acharonim who disagreed with this and wrote of ways in which one may indeed offset the loss against the profit:
a) Some wrote that only in a case where he learned of the loss and the profit each separately, then he cannot offset the loss against the profit; but if he did not learn of it, and only at the end of the year reckoned his affairs and saw that in some he profited and in some he lost, he may offset the loss against the profit. And this is the wording of the Shaar Efraim5, brought in the Eliyah Rabbah6: 'I answered him based on the proof from the Gemara in [the chapter] HaMekabel: Rava said, this transaction (iska) is half a loan and half a deposit etc.; one transaction and two documents — the loss is the borrower's; two transactions and one document — the loss is the lender's; and see Rashi and the Tur Yoreh De'ah siman 177 there. And the essence is that if in one transaction he wrote two documents, one document is not bound to the other — so that if in one there was profit and in the second a loss, they [first] fill the principal and afterward divide the profit; and if he gave him two transactions on two occasions and wrote them in one document, and he profited in one and lost in the other, they fill the principal and afterward divide the surplus. And if so, in our case it appears to me that if, at the time he had the loss, he had an accounting that he had a loss — then what profit he had afterward is a matter unto itself, and the profit does not fill the loss, and he must separate from all the profit. To the exclusion of [a case] where, when he had the loss, he had no accounting of the loss, and at the end of the year he reckoned all the accounts — the profit and the loss of the whole year — then he first fills the loss from the profit and afterward separates ma'aser from the profit; and see the Shulchan Aruch siman 177 seif 33, and see the Rambam and the other poskim, and see Tosafos in the first chapter of Taanis daf 9, who bring the Sifri: "עשר תעשר את כל תבואת זרעך היוצא שדה שנה שנה" — I would know only the produce of your seed, which is obligated in ma'aser; interest and commerce and all other profits, from where? The verse states "את כל", for it could have said "את תבואתך"; what is "את כל"? To include interest and commerce and every other thing by which he profits [end of quote]'.
b) And some wrote that only if he already separated the ma'aser money is he not permitted to offset again; but they wrote that one should set a time to make the reckoning (every three months or half a year, and it is most correct to set it at Erev Rosh Hashanah), and that after the reckoning one does not reckon to offset again retroactively, as the Chavos Yair wrote7: 'One who took upon himself by a vow to tithe the profits — if he has a profit in wine and a loss in grain, does he deduct the loss from the profit, or is he obligated to give from all the profit? And it appears that, with respect to his vow which he vowed in general terms, it is like one document and two transactions .. that they are mutually bound; only there is a difficulty: if so, if he already gave to the ma'aser box the ma'aser of the wine profit, and after half a year a loss befalls him, shall he go back and make the holy into the profane and take from the ma'aser? And moreover, what limit and boundary will you set for him — even after several years likewise? And it appears that one who practiced [this] and wishes to fulfill his duty toward Heaven should have a special ledger for his ma'aser, and set for himself a special day every three months or half a year on which he makes the reckoning, and from then onward he shall not reckon retroactively, for it is a new partnership; and the correct [time] is to set it at Erev Rosh Hashanah, for on Rosh Hashanah all is decreed, and his sustenance is fixed, as in that incident of the nephews of Rabbi Yochanan ben Zakkai in the first chapter of Bava Basra.'
c) And some wrote that it is an annual reckoning, and one reckons each year all the profit and loss, and offsets the losses of that same year, as the Noda BiYehudah wrote8: 'But what appears to me, as far as it is possible for him to find some decisive ruling, and with proofs from the Rishonim, is that if the profit and the loss are in one year, this is deducted against that; but in two years one does not deduct from this against that. Now, the essence of ma'aser kesafim is derived in the Sifri from the verse "עשר תעשר את כל תבואת זרעך", and it is expanded from the fact that "all" (kol) is written, to include commerce and interest .. And behold, I say that also "שנה שנה" ("year by year") which the verse wrote, we expound likewise regarding ma'aser kesafim, that each year is an accounting unto itself; for regarding ma'aser of grain and ma'aser of animals we expound that one does not tithe from this year for another year — that is, from the new for the old — but regarding ma'aser kesafim "old" and "new" do not apply, and therefore we expound it regarding the filling of the loss from the profit. And should you say: who says that we expound "year" at all regarding money? — I say a proof to this from the words of Tosafos and the Rosh. Behold, Tosafos in Kesubos 50a, s.v. "he shall not squander more than a fifth", explain in the Yerushalmi that the first time he may squander a fifth, and from then on each and every year he gives a fifth of the profit [end of Tosafos]. And so the Rosh wrote there in Maseches Kesubos .. And I say that also from the words of the Yerushalmi it is proven, for at the beginning of the words of the Yerushalmi there is a point to be examined, that it says: how so etc., he asked etc., a fifth every single year — over five years he loses all of it. And the matter is astonishing: why did he ask specifically "every year", and where is "year" mentioned? He should have asked "a fifth every day — over five days he loses [all]", or he should have said "a fifth every week or every month" — and why did he seize in his question specifically "year"? .. But in any case we see that the Yerushalmi is precise with the verse "שנה שנה", and therefore Tosafos and the Rosh wrote that each year he gives a fifth of the profit; and in any case, since they mentioned "every year", it follows that the whole year belongs to one accounting.'
And so wrote the Aruch HaShulchan9: 'And likewise it is an obvious matter that the profit is reckoned every single year, from Rosh Hashanah to Rosh Hashanah; and if in this year he had businesses in some of which he profited and in some of which he lost, he makes a general accounting, and whatever remains as profit he gives ma'aser to tzedakah.'
Thus we have seen from the words of several of the Acharonim that one may reckon at the end of the year [before Rosh Hashanah10] all the profits and losses, and then it is possible to offset the losses against the profit with respect to the ma'aser accounting.
Notes:
1 ח"ב יו"ד עמוד עו ענין א ↩
2 פרק הצדקה והמעשר ↩
3 שו"ת ח"ב סי' פו ↩
4 יו"ד סי' א בסיכום הדברים אות כד ↩
5 שו"ת סי' פד ↩
6 או"ח סי' קנו ס"ק ב ↩
7 סי' רכד ↩
8 שו"ת יו"ד מהדו"ת סי' קצח ↩
9 יו"ד סי' רמט ס"ז ↩
10 כמבואר בהלכה 644. ולהעיר ממ"ש בשו"ת שבט הלוי ח"ט סי' רא אות ה: 'ואשר שאל *אם אפשר לעשות חשבון המעשר כספים בתאריך בשעה שמכינים ממילא הדו"ח לשלטונות המס. בעניותי דאפשר לעשות כן*, דהענין שיש לו זמן מסוים שמזכיר אותו על הנהגתו במעשר כספים, וכיון שאז מדייק בחשבונו אפשר לעשות כן'. אך ראה בדבריו בח"ה סי' קלג שגם כתב 'ושנה זו מתחיל ונסתיים בתשרי' ↩
[8] (Halacha 731)
Question: What must be done with the ma'aser money?
Answer: The early authorities disagreed as to what one may do with ma'aser money. Some permitted using it for any matter of mitzvah, as is written in the responsum of Rav Menachem Me'il Tzedek1, which is brought in many poskim2: 'Regarding what you asked, about buying seforim from the ma'aser — thus I am accustomed to rule for people: any mitzvah that comes his way, such as being a sandak (godfather at a bris) or bringing a groom and bride to the chupah and the like, and likewise to buy seforim to study in them and to lend them to others to study in them — if he did not have the means, and he would not [otherwise] have performed that mitzvah, he may buy [it] from the ma'aser'3.
However, the Leket Yosher4 permitted it for the purpose of a mitzvah and did not stipulate that it is permitted only if he would not [otherwise] have performed that mitzvah in any case: 'And at the outset, when he begins to give ma'aser, he must stipulate that he will give the ma'aser for any matter of mitzvah. But in any case he is not permitted to buy from it a tallis, nor tefillin, nor an esrog — even though if he wished he could fulfill [the obligation] with the community's esrog — because these are matters of inheritance; but he may buy from it the beautification (hiddur) of an esrog, and candles for the beis haknesses, even a candle for Yom Kippur'.
But some wrote that one may use it only for the needs of the poor, as the Maharam of Rothenburg wrote5: 'It appears that ma'aser money, after they have taken hold [of the practice] to give it to the poor, may not be diverted to another mitzvah, for it appears as robbing the poor; for even though it is not from the Torah but a minhag, we hold that things which are permitted but which others treat as forbidden — you are not permitted to permit them in their presence, as it says "he shall not profane his word", and "he shall not profane" is Rabbinic [as is stated] in the chapter [Eilu Mutarin] (15a). And it is not comparable to that [taught] at the beginning of the first chapter of Arachin (6b), that a Jew who donated a candle or a menorah to the beis haknesses may divert it to another mitzvah — for there it is different, since both this and that are a mitzvah for the Most High; but ma'aser kesafim money — the poor have already acquired rights in it through the minhag that all the diaspora has practiced, and one may not divert it from the poor to another mitzvah in which the poor have no need, for we learned in the second chapter of Shekalim (Mishnah 5) "the surplus [designated for] the poor [goes] to the poor".'
And in Minhagei Maharil6 he wrote: 'And those who give their ma'aser to make candles to be lit at the time of tefillah act improperly, for the ma'aser belongs to the poor'.
In the Responsa Avkas Rochel7 he expounded at length on the various levels within ma'aser money, but in all of them in a manner that it ultimately reaches the hands of the poor. And this is his wording: 'However, as to what one should do with it — this is a plain matter: since the very concept that a person tithes from his money is derived by us in the Yerushalmi from what is said "honor Hashem from your wealth and from the first of all your produce", we should learn one from the other regarding the division .. Just as with terumos and matnos [kehunah] their benefit belongs to the owners, and it is fitting that he endeavor to give them, half or most, to Torah scholars and to his poor relatives — as it says in Chullin, "for those who uphold the Torah of Hashem there is a portion", and the others uphold [in other ways] etc. — so too regarding ma'aser: to Torah scholars is the best [use], and "it is a tree of life" for those who uphold the poor Torah scholars .. and this is the first. The second: the redemption of captives, in which all of them are contained. The third: in the importance of tzedakah and the greatest of all, when he gives to a poor person and [the poor person] does not know [the giver]. The fourth: to marry off orphan girls or poor girls. The fifth: to buy seforim for the children of the poor. The sixth: to give some of it to his poor relatives — for all of it he may not [give to one], as it says in Chullin "one who gives all his gifts to one kohen etc.". And in the Yerushalmi in Maseches Peah, Rabbi Yochanan said: a curse shall come upon one who feeds his father with ma'aser ani. And even though there is a beraisa there in the Yerushalmi that says a father and his son, a wife and his relatives, two brothers, two partners redeem for one another [with] ma'aser ani and give one another ma'aser ani — the Mordechai already answered that this is specifically where both the son and the father are poor; but if one of them is wealthy, "a curse shall come" etc., and so wrote the Rivash in a responsum.'
And at the conclusion of his words he wrote: 'And regarding buying a mitzvah in the beis haknesses — if from the money of the mitzvah that they buy, [some] is given to the poor, this too is permitted'.
And in halacha the Rama wrote8: 'And one should not perform a matter of mitzvah with his ma'aser, such as candles for the beis haknesses or another matter of mitzvah; rather he shall give it to the poor'.
Except that in the Be'er HaGolah9 he explains that the Rama spoke only of a mitzvah that one is already obligated to perform, and this is his wording: 'Meaning, that which in any case he is at least obligated to perform this mitzvah, and he wishes to exempt himself from it with ma'aser — he is not permitted; but if he wishes to perform with it a mitzvah he is not already obligated in, he is permitted.'
And on the words of the Be'er HaGolah, the Chasam Sofer10 wrote that he means to say that the Rav Menachem and the Maharil did not disagree, since one can establish the words of the Maharil, who forbids using it for the purpose of a mitzvah, [as speaking] of a mitzvah that he is obligated to perform.
---But the Chasam Sofer himself there wrote regarding his words: 'But with due respect to his honor, he erred in what he saw, for in the Maharil, Hilchos Rosh Hashanah, and in the responsum siman 56, he explicitly wrote the reason: because maaser belongs to the poor, and how can he take candles for the synagogue from the money of the poor — even if he would not otherwise be obligated in them, nonetheless, how can he steal from the poor, and he has in the money only the benefit-of-discretion (tovas hana'ah) and no more .. maaser ani — it never entered anyone's mind to perform a mitzvah with the money of the poor, and the Rema did not need to bring a proof from Beitzah 21, but rather since this maaser kesafim is not an actual obligation — some separate it and some do not separate it — and if so, certainly, were he not accustomed to separate maaser, who would claim it from him and who would compel him; I might have thought that he does not steal from the poor. Therefore he brings from tractate Beitzah 21: one who says "behold I am a nazir," even though he is not obligated to make himself a nazir, nonetheless, since he said "behold I am a nazir," he is immediately obligated in all the offerings of a nazir, and afterward when he says "on condition that I shave from maaser sheni money," it is not within his power [to do so] — so too here, since he was accustomed three times to separate maaser from his profit and to give it to the poor, thereafter whatever he separates as maaser automatically becomes the poor's, and it is not within his power to purchase from it a candle for the synagogue, even if he is not obligated in them, and the words of the Be'er HaGolah are astonishing'11.
However, the Chasam Sofer concludes there: 'And from this: if right at the beginning of his practice to separate maaser kesafim he stipulated that he may use it for a matter of a mitzvah, the Maharil concedes to the Maharam who is [cited] in the Shach, and there is no dispute here'.
If so, we have seen that the poskim disagreed as to whether maaser kesafim money is fit to be given only to the poor, or whether there are circumstances in which it is permitted to use this money also for other mitzvah needs; and in the coming halacha we will see the view of our Rebbeim, our Nesi'im, on this, and additional details from the words of the Acharonim.
Notes:
1 Rabbeinu Pinchas of Merzburg, of the later Rishonim (also called Rabbi Menachem HaMe'ili) ↩
2 Maharshal, Derishah, Responsa Be'er Sheva siman 41, Shelah tractate Megillah, chapter Ner Mitzvah, Taz YD siman 249 s.k. 1. Shach there s.k. 3, *but see his words cited in the next note.* ↩
3 The Alei Tamar on the Yerushalmi wrote to bring a proof from the words of the Yerushalmi (Peah 1:1): 'Gemilus chasadim: this that you say [has no fixed measure] is with one's body, but with one's money there is a measure for it, and this accords with what Rabbi Shimon ben Lakish said in the name of Rabbi Yosi ben Chanina, *in Usha they enacted that a person should separate a fifth of his property for a mitzvah'*, except that the Yerushalmi deals with a fifth and not with maaser; and see the Shitah Mekubetzes, Kesubos 50a: 'And the Rav HaMe'ili z"l wrote, and these are his words: and in the Yerushalmi we read, in Usha they instituted that a person should expend a fifth of his money for a mitzvah, and it is explained there: at first from the principal and afterward from the profit. And it appears there is a support for this matter, that in each and every year Israel were obligated to separate two maasros — the first and second year, maaser rishon and maaser sheni; the third, maaser rishon and maaser ani — *and it appears from this that from the first maaser he has permission to expend it for any matter of a mitzvah, and even for the need of himself and his sons and his household, such as that he write from them books to study in, he and his sons, and to lend them to others, for maaser sheni was eaten by him and his sons and his household in Yerushalayim; but from the other maaser he must give to tzedakah to the poor, just as maaser rishon was given to the Kohanim and Levi'im so that they would be strengthened in the Torah of Hashem, and maaser ani which was given to the poor; and whoever is scrupulous in this is assured that he will prosper in his property, and as they expounded in tractate Taanis, "aser te'aser" — take a tenth so that you will become wealthy, and they said in every matter it is forbidden to test the Holy One, blessed be He, except for this, as it says "bring the maaser etc."'* And to note that in Responsa Lehoros Nasan chelek 1 siman 44 he elaborated to explain that even the words of the responsum of Rav Menachem were said only when the gain of purchasing the mitzvah goes to the poor, such as that he purchases the sandaka'us from a poor person and the like, and as the concluding words of the responsum Avkas Rochel below ↩
4 Chelek 2 (YD) page 76, matter 1 ↩
5 Responsa, Prague edition, siman 74 ↩
6 Hilchos Rosh Hashanah ↩
7 Siman 3. And see halacha 712 note 3, that the poskim discussed whether this is a responsum from Maran the Beis Yosef ↩
8 Shulchan Aruch YD siman 249 se'if 1 in the hagah ↩
9 There, s.k. 5 ↩
10 Responsa chelek 2 siman 231 and siman 232 (cited in the Pischei Teshuvah s.k. 2) ↩
11 And see also Responsa Teshuvah MeAhavah chelek 1 siman 87, and Responsa Shevet Sofer YD the second siman 84 ↩
[9] (halacha 732)
Question: What must be done with maaser money? (2)
We saw in the previous halacha that the poskim disagreed as to whether maaser kesafim money is fit to be given only to the poor, or whether there are circumstances in which it is permitted to use this money also for other mitzvah needs; and the poskim of our time have also disagreed on it in practice1.
However, even when one gives the money to the poor, and likewise according to those who permit using maaser money for other tzedakah needs, there are certain limitations and conditions, as follows:
a) A mitzvah that a person is obligated to fulfill, and likewise tzedakah that a person is obligated to give by law: he may not use maaser money, as the Maharil wrote2: '… and matanos la'evyonim, my humble opinion inclines that one does not fulfill it with maaser money, since it is a Rabbinic enactment [and] is a matter of obligation, and it turns out that this one pays [his debt] from his maaser and he has in it only the benefit-of-discretion; and there are among our teachers who ruled that it is not [considered] money — [but even] according to the one who holds it is money, in any case it is a matter of obligation, and every matter of obligation comes only from unconsecrated [funds] .. but here, where the essence of the enactment and the obligation rests upon him, one fulfills it only from his own [funds]. And one who is scrupulous and spares his own may give two perutos from his own, or rely on Purim money [and to increase] them from the maaser'.
And the Shelah wrote3: 'Every matter of obligation comes only from unconsecrated [funds], as it appears in tractate Chagigah (7b) regarding the olas re'iyah and chagigah, that it does not come from maaser but from unconsecrated [funds]. And so it appears to me regarding Purim, where one practices machatzis hashekel, and all the more so mishlo'ach manos and matanos la'evyonim, that this expenditure a person should expend from his own and not from his maaser money. And so I found written (in the Matteh Moshe siman 1015), and these are his words: and specifically from his own, as Maharai Molin responded (Responsa Maharil siman 56) that with maaser money one does not fulfill his obligation of matanos la'evyonim. And from this it appears to me, in those places where they give a fixed amount per person to the chazan before the reading of the Megillah as Purim money, in this one does not fulfill his obligation of matanos la'evyonim, for it is included in the wages; and if he did not give that fixed amount, one would need to increase the chazan's wages, and if so, this tzedakah would be for us and not for the poor, but rather one must give apart from this according to the generosity of the reach of his hand, end of his words. However, when he has separated according to the reach of his hand, and wishes to add, it appears that it is permitted to add from his maaser money'.
The Magen Avraham4 cited their words regarding mishlo'ach manos: 'Two gifts. From his own and not from maaser money [Shelah], and if he comes to add, he adds from maaser [Maharil in the responsum siman 56]'.
And these are the words of Responsa Beis Dino Shel Shlomo5: 'For to purchase a tallis and tefillin, which are an obligation of the body and do not pertain to the poor, and all the more so that they are mitzvos upon his own body, and they are [for] him alone and for himself, and others have no share with him in them — it is obvious that one does not fulfill [them] from maaser money'.
b) A mitzvah that he is not obligated to fulfill: if at the time he vowed and obligated himself to give other tzedakah needs he did not have in mind to give this from maaser money, then he has already obligated himself to give this tzedakah, and he cannot pay his debt from maaser money, as the Taz wrote6: 'And regarding purchasing mitzvos in the synagogue with maaser money, it appears to me that if at the time of purchasing the mitzvos his intent was on this, it is permitted, for the money goes to tzedakah; and although he derives benefit from being honored to call others up to the Torah, this is no prohibition, for in every maaser there is a benefit-of-discretion for the owners. This is not so if at the time of purchasing the mitzvos he did not intend to give from maaser, and afterward he wishes to pay from maaser — this is like one who pays his debt from maaser, as [explained] above in this'.
c) A mitzvah that he wishes to fulfill in any case: some have written that he may purchase mitzvos with it only when, were it not for the maaser money, he would not have purchased this privilege; but in a case where, even without having maaser money in hand, he would have had the ability and would have purchased this mitzvah, he cannot pay for this with maaser money, as the aforementioned Rav Menachem wrote: '.. to purchase books to study in them and to lend them to others to study in them — if he did not have the ability and would not have performed that mitzvah, he may purchase from the maaser'.
And regarding the essence of the dispute itself as to whether he may use the money for other mitzvah needs, the Chasam Sofer wrote to explain that they disagreed7 as to whether the obligation of maaser kesafim is from the Torah and [designated] for the poor — and then he cannot use it for other tzedakah needs — or whether it is not from the Torah, and then, if it was not established to give specifically to the poor, one may say that he can use it for other tzedakah needs; and these are his words8: 'For the Maharil holds that the obligation of separating maaser kesafim is literally from the Torah9 and [designated] for the poor, and the owner has in it only the benefit-of-discretion for whichever poor person he wishes; and indeed the disputants whom the Sifsei Kohen cites hold that maaser kesafim is not comparable to maaser of the Torah literally, which renders the produce tevel; this is not so with maaser kesafim, [which derives] from the derashah of the Sifri "aser te'aser" — from here that one separates maaser for those who toil in Torah, and not specifically for those who toil in Torah but for a matter of mitzvah that he wishes, according to the vow of the one who separates; and this was the maaser that Avraham Avinu separated, "and he gave him a tenth of all," and concerning this Yaakov Avinu said "and of all that You give me I will surely tithe to You," and in the Midrash that he had to separate also from his sons, and he separated Levi before Hashem, and did not separate it for the poor but for a mitzvah and holiness'.
In the coming halacha we will see the words of our Rebbeim, our Nesi'im, on this matter.
--------------
Notes:
1 See Responsa Lehoros Nasan chelek 1 siman 44. And Pesakim uTeshuvos siman 249 note 283. And in the coming halacha we will see the view of our Rebbeim, our Nesi'im ↩
2 Responsa siman 56 ↩
3 Tractate Megillah, chapter Ner Mitzvah ↩
4 OC siman 694 s.k. 1 ↩
5 YD siman 1 ↩
6 YD siman 249 s.k. 1 ↩
7 See halacha no. 709, except that these words of the Chasam Sofer are according to the view of the Maharil, and not according to the words of the Maharam, whom we saw in the previous halacha held that the obligation to give to the poor is only from minhag ↩
8 Chasam Sofer there, siman 232, ↩
9 But see Responsa Lehoros Nasan there, os 4: 'However, the words of the Chasam Sofer z"l are astonishing, for I found explicitly in the responsum of the Maharil that he holds maaser kesafim is merely Rabbinic' ↩
[10] (halacha 743)
What must be done with maaser money (3)
We saw in the previous halachos that the poskim disagreed as to what the obligation of maaser kesafim is — whether it is from the Torah, or Rabbinic, or only in the manner of a minhag; and likewise they disagreed as to whether the maaser money is designated only for the poor or whether one may use it also for other mitzvos; and we also saw that some have made these disputes contingent one upon the other.
Question: What is the view of our Rebbeim, our Nesi'im, on this?
Answer: The Alter Rebbe wrote in Seder Birchas HaNehenin1: 'One who finds a lost object recites "HaTov vehaMeitiv" — "HaTov" for himself and "vehaMeitiv" for the poor of Israel, for he has become obligated in tzedakah, since every person is obligated to give according to the reach of his hand, and one is compelled and one's property is seized over this (as is written in Hilchos Tzedakah); this is not so with one who inherited from his father — this is no good for the poor of Israel, for his father too was obligated to give tzedakah from this money to the poor, and the maaser that the son will separate, he may expend for other mitzvos'.
And in Hilchos Talmud Torah2 he wrote: 'And nevertheless it is reckoned to him as tzedakah, in the sense that he may expend all the expenses of the study of his older sons from his maaser money or the fifth, if his hand does not reach; this is not so with the tuition for himself, as will be explained in Hilchos Tzedakah'.
From the words of the Alter Rebbe we see that he ruled like the view that it is permitted to use maaser money for the need of a mitzvah, and not only for the poor.
And regarding 'the expenses of the study of his older sons from his maaser money' he wrote that it is 'if his hand does not reach'3.
The Rebbe, in the sichah of Chai Elul 57224, aroused [people] to participate in the expenses of printing the Chassidus seforim of the Alter Rebbe, and within his words he addressed the words of the Alter Rebbe in Hilchos Talmud Torah and explained them (along the lines of the aforementioned words of the Chasam Sofer5) — that this dispute depends on whether the obligation is from the Torah or Rabbinic, and these are his holy words:
'And a further matter in connection with this, pertaining to "maaser kesafim," as many are accustomed to separate maaser kesafim (and there is a basis for this, and even more than a "basis," in the Shulchan Aruch): whether one may take from maaser kesafim for the aforementioned giving of tzedakah:
In the Shulchan Aruch, Hilchos Tzedakah, we find two opinions as to whether it is permitted to use maaser money for a matter of a mitzvah — such as to purchase an aliyah or the acquisition of seforim and the like — or whether one is obligated to give them specifically to the poor. And the matter depends on the definition of the obligation of maaser kesafim: according to the opinion that maaser kesafim has a basis in the Torah, and even to the extent that the obligation of maaser kesafim is from the Torah, then the Torah granted and gave this money to the poor, and therefore it is forbidden to use it for other matters of a mitzvah; this is not so according to the opinion that the obligation of maaser kesafim is not a mitzvah from the Torah, but only Rabbinic.
And even according to the opinion that maaser kesafim is only Rabbinic, we find a distinction: whether he has already separated the maaser money — in which case there is already in it a right for the poor, and he cannot take from it for other matters of a mitzvah — or whether he has not yet separated the money, and when he purchases the aliyah or the seforim his intent is to use maaser money that he will separate in the future. And a further distinction: if, without using the maaser money, he does not have the ability to fulfill the mitzvah and would not perform it, then it is permitted to use maaser money.
And behold, in the Shulchan Aruch of Rabbeinu HaZaken there is no Hilchos Tzedakah, and nevertheless, we see that the Shulchan Aruch of the Alter Rebbe is in the category of "a city in which all is [contained]," that it contains a solution to know his view in this matter: regarding the expenses of the study of his older sons, in which he is not obligated according to the Shulchan Aruch .. Rabbeinu HaZaken writes in his Hilchos Talmud Torah: 'he may expend all the expenses of the study of his older sons from his maaser money .. if his hand does not reach'. And from this it is implied that the view of Rabbeinu HaZaken is that maaser kesafim is not from the Torah — for [if it were], the poor would acquire a right in it, and he would not be able to use maaser money for the expenses of the study of his sons,
And likewise Rabbeinu HaZaken does not hold that there is a distinction as to whether he has already separated the maaser money or has not yet separated it, for he did not mention this distinction regarding the use of maaser money for the expenses of the study of his sons'.
If so, we have seen in the words of our Rebbeim, our Nesi'im, that they held that the obligation of maaser kesafim is not from the Torah, and therefore one may use it also for other mitzvos6 (and not necessarily to give to the poor). [Except that regarding 'the expenses of the study of his older sons, from his maaser money' the Alter Rebbe wrote that it is 'if his hand does not reach'. (And the question of paying tuition for the studies of the sons and daughters we will discuss in a separate halacha, be'ezras Hashem)].
Notes:
1 Chapter 12, halacha 9 ↩
2 Chapter 1, halacha 7 ↩
3 And the reason that when his hand does not reach it is permitted: Rav Ashkenazi wrote in the Biurim on this se'if that the distinction is between something that is literally an obligation upon the person — which is why he cannot expend it from maaser money (see also what is cited in halacha no. 732), and therefore the tuition itself he cannot expend from his maaser money; this is not so with the other expenses of the study, upon which he has no obligation when his hand does not reach, and therefore he may pay from maaser. See there ↩
4 Toras Menachem chelek 34 p. 272 ↩
5 Cited in halacha no. 732 ↩
6 Except that there are in this the limitations mentioned in halacha no. 732. And to add that we have not found explicit in the words of our Rebbeim whether, when he wishes to perform a mitzvah in which he is not obligated, he may lechatchilah use maasros even in a case where he would have performed this mitzvah in any event (as is the plain sense of the words of the Leket Yosher chelek 2 (YD) page 76, matter 1) or only when, were it not for this, he would not have performed this mitzvah (as is the plain sense of the words of Rav Menachem Me'il Tzedek); and see their dispute in halacha no. 731. Rav Ashkenazi, may he rest in peace, in his ma'amar of 14 Tammuz 5766 (on the COL website) did not distinguish in this and wrote that it is permitted. And this still requires examination ↩
From the 'Shoneh Halacha' project — a daily halacha with reasons and sources
Link to the (silent) group: 'Shoneh Halacha - Chabad Minhogim'
Join the WhatsApp group