“And all that You will give me, I shall surely tithe for You” (Bereishis 28:22)

On the verse in this week’s parashah (Bereishis 28:22), “And all that You will give me, I shall surely tithe for You,” the commentary of Baalei Tosafos quotes from a Midrash: “Ya’akov Avinu enacted the tithing of one’s wealth.” This Midrash is not found among our Midrashic compilations, but Chazal, in a number of places, do mention the concept of ma’aser in connection with Ya’akov Avinu’s tithing. We take the opportunity to discuss the basics of giving ma’aser.

The Obligation and Virtue of Ma’aser

The principle halachah of tithing one’s income is presented in the Gemara (Taanis 9b), in which Chazal make a hermeneutical interpretation: “You shall surely tithe – tithe, soyou should become wealthy.” Tosafos (s.v. aser) quote from the Sifri, where we find that the instruction to tithe is not limited to the produce of the field, but applies rather to all forms of income: “Interest payments (from non-Jews), business dealings, and all other income.”

Indeed, we find that Ya’akov Avinu achieved great wealth in the merit of his vow to tithe everything he receives, as the verse writes (Bereishis 30:43), “The man spread out exceedingly, and he had great herds of cattle, and maidservants and servants, and camels and donkeys.”

The Gemara does not inform us as to whom ma’aser money should be given. However, the Midrash (Tanchuma, Re’eh, no. 18) expounds on the obligation: “You shall surely tithe – tithe in order that you should become wealth, tithe in order that you should not lack. This is an allusion to businessmen that they should separate one tenth for Torah scholars “(lit. those who strive in Torah). We see from here that the initial enactment of giving ma’aser had in mind those who dedicate their lives to Torah study.

However, there is no doubt that one performs his halachic obligation of maser by donating the tithes to ordinary poor, as  the Rema rules (Yoreh De’ah 249:2): “Those who donate their tithes for the purchase of candles, which are lit in shul during prayers, do wrongly, for ma’aser belongs to the poor.” Moreover, according to the Shach, one is even permitted to use ma’aser money for purposes of other mitzvos, provided one had such uses in mind at the time of separating the ma’aser. Yet, it is important to remember that the principle beneficiaries of ma’aser money should be the poor, and, specifically, Torah scholars whose dedication to Torah leaves them in need of financial support.

Before going into some of the details of giving ma’aser, it is worth mentioning its great virtue. As we have seen, we are promised that separating ma’aser will bring a person riches—provided, of course, that it is separated with precision and according to halachah. Rabbi Yitzchak Avuhav, in Menoras Hame’or, cites from a Midrash that takes this promise a step further: “Therefore one should not slacken in giving ma’aser, from the field and from the home, and from all that comes to a person’s hand, for through this a person preserves his wealth, and increases it a thousand-fold.”  Kabbalists also expound on the virtue of giving ma’aser, as the Chafetz Chaim (Ahavas Chesed, vol. 2, no. 2, sec. 7) himself alludes to.

Trying Hashem

The Gemara teaches a halachah that is quite unique to the mitzvah of giving ma’aser. Although with regard to other matters, it is forbidden to test Hashem, as the verse states (Devarim 6:16), “Do not try Hashem, your God,” with regard to ma’aser it is permitted to test Hashem: One may tithe one’s income, and check if the gain is as promised; wealth. This teaching is based on the verse in Malachi (3:10), “Bring the ma’aser to the storehouse, and there will be plenty in My house; test me in this matter, says Hashem…”

Although the verse itself discusses tithing one produce, the Or Zarua (Laws of Charity, no. 13) writes that the permission to test Hashem applies even to tithing one’s regular income. This ruling is also stated in Sefer Chasidim (no. 144): “Great is the separation of tithes, for Hashem says ‘test me’… this refers to tithing in order to give the poor, tithing from all one’s income.” Although some authorities dispute this, and maintain that one may only test Hashem concerning tithing of one’s produce, the broader application, which is also ruled in Ahavas Chesed, is the generally accepted ruling.

Indeed, according to the Tur (Yoreh De’ah 247) it is permitted to test Hashem not only in the matter of ma’aser, but even in every  donations to charity. Although the Beis Yosef disputes this, the ruling of the Aruch Hashulchan, in favor of the Tur, is worth noting: “In my humble opinion, there is no logic in differentiating between these matters, and our perception attests to the fact that the wealth of the rich grows in proportion to how much ma’aser they give.”

Why is it permitted to try Hashem in matters of ma’aser, in contrast with all other matters? According to the Perishah (Yoreh De’ah 247:12, citing from the Maharshal), the reason for this is that the promise is a certainty, so  no actual “trial” is involved. In light of this, it is important to note that the permission to test Hashem is restricted to the gain of wealth alone. With regard to other gains and benefits, it remains prohibited to test Hashem, even in the matter of ma’aser (Pischei Teshuvah 247:1).

Defining the Obligation of Ma’aser Kesafim

Is a poor man, who has insufficient income to cover his own needs, obligated to give ma’aser? The answer to this question depends on the basic definition of the obligation of giving ma’aser.

In fact, there are three different opinions concerning the obligation: Some maintain that it is a Torah obligation; others consider it a rabbinic obligation; and others yet—in fact, the majority of authorities—regard it as a mere custom.

Based on the words of Tosafos mentioned above, Rabbi Dovid Oppenheim (cited in Chavas Yair, no. 224) writes that the concept of giving ma’aser is a full obligation. However, although Tosafos (quoting from Sifri) mention a verse in connection with the obligation, this does not constitute proof that giving ma’aser is an actual Torah obligation. It is possible that the obligation is rabbinic, and the verse is only an asmachta (a textual support) for the rabbinic enactment. This, indeed, is the implication of the Midrash Tanchuma (quoted above), which mentions an “allusion” to the concept of ma’aser kesafim.

On the other hand, the Bach (Yoreh De’ah 331:19) writes that it is permitted to use one’s ma’aser money for the purpose of paying off obligatory debts. This indicates that the actual giving of ma’aser is not considered an obligation, because if it would be considered as such, one would not be permitted to use it for the fulfillment of other monetary obligations. Ma’aser sheni (or ma’aser ani), the tithing of produce that grows in the Land of Israel, is a full obligation; the tithing of other income, however, is not an obligation, but rather only a custom.

The Taz, the illustrious son-in-law of the Bach, differs with his father-in-law, and maintains that ma’aser is a full obligation, and one may therefore not use ma’aser money for making obligatory payments. Many authorities, however, side with the Bach, and maintain that there is no formal obligation to tithe one’s income, and the concept of ma’aser kesafim is only a minhag. Having said this, it is important to note that once somebody begins to tithe (even by doing so once), it is possible that the practice becomes obligatory by virtue of its being a neder (a vow).

Are the Poor Obligated in Ma’aser

The question of a poor person, as mentioned above, is a practical ramification of how the obligation of ma’aser is defined. If tithing one’s income is comparable with the tithing of one’s produce, it would emerge that the obligation applies even to the poor, who are obligated in tithing produce no less than the wealthy.

However, if we assume that the concept of ma’aser kesafim is only a custom, it emerges that tithing is only a quantification of the general mitzvah of giving charity. Indeed, the Rambam (Matnos Ani’im 7:5) writes that giving a tenth is the “mean trait” in giving charity. According to this viewpoint, a poor person would not be obligated in tithing his income, for poor people are exempt from the mitzvah of charity (see Shach, Yoreh De’ah 248:1).

The Rema (Yoreh De’ah 251:3) rules according to this position, stating that “one’s own livelihood takes precedence over that of any other’s.” Nonetheless, there are a number of halachic precedents stating that a poor person who strives to give ma’aser will not lose out from doing so. ((An interesting ruling is given by Teshuvos Ve-Hanhagos (vol. 1, no. 560, quoting from the Rav of Brisk), whereby even a poor person should separate a tenth of his income, only that he can then take the ma’aser for himself. He concludes by citing from the Chazon Ish: “Some say in the name of the Chazon Ish, that even somebody who is exempt from giving ma’aser, will not lose from giving ma’aser, for that which he gains by not giving will go to waste on medical expenses and the like.”))

Separating Ma’aser from Inheritance and Gifts

Concerning the matter of which income is obligated in separating ma’aser, Rabbeinu Yonah writes that “any matter of income, including teaching, writing, working, or even one who finds a find, or one who receives a gift, or any other matter, be it gold or silver—from all one should separate one tenth.” As we will see below, this represents a quite extreme opinion. According to Rabbeinu Yonah, there is nothing that a person receives which is exempt from the obligation to tithe.

With regard to inheritance, the Pischei Teshuvah (249:1) writes in the name of the Shelah that there is a full obligation of separating ma’aser. This applies even if the deceased was always particular in tithing his income. The principle behind the ruling is that the obligation of ma’aser kesafim, unlike the tithing of produce, is incumbent on the person (gavra) rather than the money (cheftza). When a person gains, he becomes obligated in tithing, irrespective of how many times the money had already been tithed.

The same rule applies to monetary gifts, from which ma’aser must also be separated. Thus the Taz (331:12) writes, concerning marriage gifts: “Is this an obligation on the money, so that we could say that the money is already exempt? It is an obligation on the person, who is obligated to separate from that which Hashem has given him!”

However, under particular circumstances, a person giving a gift is able to exempt the receiver from separating ma’aser by separating ma’aser twice, with the intention that one should exempt the receiver from the obligation.

In Poland, it was customary to do this for monetary gifts given to children on the occasion of their marriage, so that the children won’t have to separate ma’aser, and thereby create a neder (vow) regarding future income (Pischei Teshuvah 249:1). This mechanism should not be applied, however, without a special reason for doing so.

In addition, if the person giving the gift objects to the receiver’s separating ma’aser, the recipient does not have the right to go against the giver’s wishes. This ruling is given by the Iggros Moshe (Yoreh De’ah, vol. 2, no. 112) with regard to somebody who gave an amount of money to his son-in-law, so that he would be able to study Torah in financial tranquility, promising to add more according to his needs. When the son-in-law wished to separate ma’aser, the father-in-law objected, claiming that this would cause him a loss in having to pay more.

Rav Moshe ruled in favor of the father-in-law: A person has the right to stipulate condition concerning gifts, and the father-in-law gave the monetary gift on condition that it should be used exclusively for the recipient’s sustenance. This ruling has been seconded by additional authorities (see Orach Tzedakah, p. 364).

Gifts and Inheritance of Goods and Land

The rulings above, whereby a person is obligated to separate ma’aser from gifts and inheritance, are limited to inheritance and gifts of money. With regard to a gift (or inheritance) of goods or an apartment, the Chazon Ish (quoted in Derech Emunah, Matnos Ani’im 7:27) ruled that there is no obligation of separating ma’aser.

The reason for this is that ma’aser is only a quantification of the mitzvah of giving charity (as explained above), and there is no obligation to sell one’s possessions in order to give charity (Orchos Rabbeinu, vol. 1, p. 396). In the light of this explanation, somebody who sells the gifts he was given would be obligated to separate ma’aser from the income he receives. Although most authorities follow the ruling of the Chazon Ish, it is noteworthy that Rav Shlomo Zalman Auerbach disputed this, and ruled that even non-monetary gifts are obligated in separating ma’aser.

A common example of this halachah is parents who bought an apartment for their children. According to the lenient opinion, the children would not—thankfully for them—have to tithe the value of their apartment. This is also the prevalent custom (Shevet Halevi, vol. 5, no. 133, sec. 7).

Even if the parent don’t actually buy the apartment on behalf of their children, but only give them the money with which to buy the apartment, the children would not be obligated to give a tenth to charity. However, it is preferable that the children should have intention not to acquire the money, thereby serving as emissaries of their parents to buy the apartment, and the money never actually enters their possession (based on Orchos Rabbeinu, loc. cit.).

Another example of this halachah pertains to coupons or vouchers for making various purchases, or bus cards, and the like. Once again, the lenient opinion (above) would exempt such items from the obligation of ma’aser.

However, the Chut Hashani (Yom Tov and Chol Hamoed, p. 351) rules that if one receives supermarket vouchers, which can be used for buying many different products, one is obligated to separatema’aser. Due to the purchasing power of these vouchers, they are considered (in this opinion) as money, which is obligated in ma’aser.

Finding a Find

In the above quoted words of Rabbeinu Yonah, we see that even finds that a person comes across are obligated in ma’aser. According to the lenient opinion above, this would apply to a find of money alone, and not to finds of objects.

In the matter of found money, we find a great chiddush in the commentary of the Haflaah (Kesubos 50a). In his opinion, not only is somebody who finds money obligated in separating ma’aser, but even somebody who loses money, gives up hope of finding it, and then finds it, is obligated in tithing the money. The same, he writes, applies to somebody who loses hope of collecting a monetary debt, and then manages to collect it. It is considered a “new gain,” which is obligated in ma’aser.

As pointed out in hilchos tzedakah of Rav Yosef Fleischman shlita (no. 5, note 25), this chiddush is not without numerous difficulties, and it is difficult to accept it in a practical sense. Indeed, we find an interesting ruling of Rav Shlomo Zalman Auerbach (cited in Orach Tzedakah, p. 324), which states that there is no obligation of separating ma’aser from reparation payments made by Germany to Holocaust survivors. Although the survivors had obviously lost hope of seeing their money again, their getting it does not obligate them in separating ma’aser.

There are numerous halachic areas of ma’aser kesafim that we have not dealt with here. For instance, the halachah of separating a fifth of one’s income, which is also deduced from the wording of Ya’akov Avinu’s separation, raises a number of issues in the area of charity in general. Moreover, there is extensive discussion among poskim as to how income should be evaluated  regarding ma’aser, and concerning which causes ma’aser money may be given to. These halachos are elucidated in Rav Yosef Fleischman’s “Laws of Charity”, which can be found online at www.din.org.il, and (partially) in English at www.dinonline.org.

Tags: Parsha

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