1. Ma’aser kesafim cannot be used to fulfill a mitzvah, whether a mitzvah d’oraisa  ((

The gemora in Beitza (19b) says, “All money that one must spend, can only be paid for withchullin… If a person commits to become a nazir on condition that he can pay for the expenses of his korban with money of ma’aser sheini, he is a nazir but does not bring thekorban.” According to the Darkei Moshe (249:2) and the Bi’ur Hagra, this gemora is the source for the Maharil (Rosh Hashanah 3) who writes, “Those who use their ma’aser kesafim to buy candles for the shul are not acting appropriately, since ma’aser kesafim is designated to the poor”.

 

There is a dispute between the Be’er Hagolah (249:4) and the Chasam Sofer (Yoreh De’ah231) regarding mitzvos that one is not obligated to fulfill. According to the Be’er Hagolah, one may use ma’aser kesafim to pay for a mitzvah that one does not have to do, but according to the Chasam Sofer, one may not – rather ma’aser kesafim must be given exclusively to the poor. The explanation of the Chasam Sofer is clear from the Maharil in a different place (1:56). However, the Chasam Sofer contradicts himself in the way he explains the Rema (is ma’aser kesafim designated to the poor by custom or obligation). This contradiction is noted by the Pischei Teshuva (2) and Maharshag (1:30).))

derabbanan,  ((Maharil (1:56), regarding using ‘ma’aser kesafim’ to pay for ‘matanos la’evyonim’.)) or an obligation based on custom. An example of a mitzvah based on custom is supporting one’s young children. ((The Taz writes (249:1) that although one fulfills a mitzvah of tzedaka when one supports one’s children, it is inconceivable that this expense can be deducted from ma’aser kesafim.)) Therefore, in places where the custom is that children do not work until they get married, one may not support them with ma’aser kesafim until that time. ((Tzedaka U’mishpat (6:12). Clearly, this depends on the practice of each social group.))

2. If a person made a specific financial commitment, for example to pay for the wedding of his son, or to support his son or son-in-law for a few years so that he can learn, and he did not intend from the outset that he would pay with ma’aser kesafim, he may not do so. Since his commitment obligates him, it may not be paid for with ma’aser kesafim. ((Chasam Sofer (1:231). Similarly, according to the Taz (249:1), one may pay for mitzvosand buy aliyos to the Torah with ma’aser kesafim if one intended to do so at the time of purchase.))

3. One should not pay tuition (school fees) with ma’aser kesafim, ((A father is obligated to teach his son Torah (Kiddushin 29). Ahavas Chesed (19) writes that since there is an obligation to teach one’s own son or hire someone else to do so, tuition cannot be paid for with ma’aser kesafimIgros Moshe (2:113) writes the same thing.)) unless one has already taught one’s child the basic obligation of Torah knowledge. ((

Opinions differ how much Torah a father is obligated to teach his son. According to theGraz (Talmud Torah 1:6), a father must hire a teacher until the child is able to understand clearly complex topics in the gemora unaided, with the commentaries of the Rishonim andAcharonim, and be able to draw halachic conclusions. Today, this is approximately until the age of marriage. However, according to the Chazon Ish (152) and many other authorities, the basic obligation is only until the child knows the Written Torah; beyond that, there is a mitzvah but no obligation. However, these opinions would most likely agree that ma’aserkesafim may not be used to pay for tuition of these topics, since there is a mitzvah nonetheless. The Aruch Hashulchan (245:6-7) clearly holds that the father must teach his son more than just the Written Torah. It is noteworthy, that according to the Igros Moshe(2:113) who writes that one must send a girl to a Torah institution from the age of compulsory state education, the same would apply to a boy, even if he has been taught the basic obligation.

Presumably, a father who could send his son to a Torah institution where there is no tuition, but rather chooses to send to a better school where there is tuition, may be able to pay the fees from ma’aser kesafim, like any hiddur mitzvah (see halacha 7). However, this point requires further investigation.))

One may use ma’aser kesafim to hire a private tutor. ((Minchas Yitzchak (8:5:3), since paying a private tutor is no different than any other mitzvah. He concludes that if one can afford to pay with regular money, it may be preferable to do so.)) According to some opinions, one may not pay girls tuition with ma’aser kesafim. ((In Igros Moshe (Yoreh De’ah 2:113), Rav Moshe Feinstein writes that although there is no obligation to teach girls Torah, he must nevertheless pay for her to be educated in a Torah institution. He reasons that since the law obligates him to send his daughter to school, if he would not pay for her to attend a religious one she would be sent to a secular one, with the resultant negative spiritual consequences. Since he must ensure that his daughter believes in the fundamentals of Jewish faith and keeps the Torah, even if it costs money, he must pay for her education in a Torah institution. This sentiment is echoed in Shut Zekan Aharon (Yoreh De’ah 2:66). He writes regarding the era shortly before the Second World War, that only the girls who learn in a Torah institution maintain a commitment to the Torah, since the currents of religious derision from the street are so powerful. According to his analysis, a father is obligated to pay for his daughters’ Torah education even if the law would not require him to send to a school, because of the negative affects of society in general. See also Minchas Yitzchak 10:85.))

4. According to some opinions, if wealthy parents pay a higher level of tuition to subsidize the fees of those who cannot afford to pay the basic rate, the difference may be paid with ma’aser kesafim. ((The Chafetz Chaim writes in Ahavas Chesed (19) that although one may not pay one’s own tuition with ma’aser kesafim, it is a big mitzvah to pay for the tuition of poor children. According to both Rav Moshe Feinstein and Rav Shlomo Zalman Auerbach, although the institution is prepared to accept the wealthy child only if his parents pay a higher level of tuition, the difference can nevertheless be deducted from ma’aser kesafim, since he is paying beyond the actual cost of the education. (See Be’orach Tzedaka pages 322 [note 3] and 329.) ))

5. Opinions differ if ma’aser kesafim should be given only to poor people, ((See Chapter Seven regarding supporting Torah scholars.)) or if it can be used for a mitzvah that one is not obligated in ((According to the Maharilma’aser kesafim should be used only for the poor. This opinion is held also by the Maharam Mirotenberg (Prague 74), who writes that the custom is to givema’aser kesafim to the poor only. The Maharshal (quoted by the Taz 249:1 and Shach249:3) brings the opinion of Rebbi Menachem (459) who writes that he instructs people to pay for mitzvos that he would be unable to otherwise perform with ma’aser kesafim, such as being sandek at a bris, buying sefarim to learn from or to lend out. One may suggest that the Maharil and Maharam do not argue with Rebbi Menachem, but each one expressed the custom that was followed in their region. However, the analysis of the Chasam Sofer (232) is that there is a disagreement about using ma’aser kesafim for purposes other than supporting the poor.)) (from which poor people or Torah scholars do not benefit). The accepted conclusion is that if when he began giving ma’aser kesafim ((According to the Chasam Sofer (211), if one gives ma’aser kesafim three times to the poor, he is bound by a neder to do so always.)) he said ((The same applies if he only had this in mind.)) that he was doing so bli neder, ((Kovetz Teshuvos (3:147). The Chafetz Chayim writes in Ahavas Chesed (18:2), that it is advisable to have this in mind before one begins separating ma’aser kesafim.)) or that he would use his money for mitzvos, ((Chasam Sofer ibid, Ahavas Chesed (18, last note), and many other authorities.)) he may do so. Even if he originally began to give only to the poor and it is difficult for him to continue giving only to the poor, he may perform hataras nedarim, and start giving to other causes. ((Minchas Yitzchak 8:83 and 10:85 based on Shulchan Aruch Yoreh De’ah 258:6.)) According to some opinions, since the widespread custom is to give to other causes, one may do so even if he made no precondition. ((Rav Nissim Karelitz quoted in Beorach Tzedaka (page 369). It would appear that this is the correct approach, since one’s ma’aser designation depends on the accepted practice, which today is to give to causes that the poor do not benefit from.))

6. In any event, it is preferable to use ma’aser kesafim only for mitzvos that poor people benefit from, unless it is difficult to do the mitzvah if he uses regular money. ((In the Teshuva of Rebbi Menachem, he allows one to use ma’aser kesafim only if he would otherwise not do the mitzvah. This line is followed by the Minchas Yitzchak (8:83), who allows one to pay shul membership from ma’aser kesafim if one is otherwise unable to do so. The Nachalas Shiva (8:7:2) also allows one to use ma’aser kesafim to do mitzvosonly if the money will go to the poor, or if one would be unable to do the mitzvah otherwise.)) Examples of such mitzvos include traveling to a wedding that will be sparsely attended, ((See Shut Betzeil Hachachma 4:161.)) to visit Eretz Yisroel, ((Rav Shlomo Zalman Auerbach, quoted in Be’orach Tzedaka page 329 (note 22). One should deduct one’s normal living expenses from the expenses incurred due to the trip, in order to calculate how much one may separate from ma’aser kesafim.)) to help one’s parents (if they are not poor). For mitzvos such as these, one may use ma’aser kesafim if it is hard to do the mitzvah otherwise.

7. According to some opinions, one may use ma’aser kesafim to buy a more beautiful mezuzah or pair of tefillin (beyond the basic obligation), if he is unable to purchase that quality with regular money. ((The Leket Yosher (Volume 2 page 76) allows one to use ma’aser kesafim for a hiddurmitzvahShut Mishnas Sachir (81) explains at length that one may use ma’aser kesafim for any hiddur mitzvah, just as one may use ma’aser kesafim for a mitzvah that one does not have to do.)) According to some opinions, of the extra money one wishes to spend, a third of the basic value should be paid for with regular money; beyond that one may use ma’aser kesafim. ((The Shulchan Aruch (Orach Chaim 656) brings from the gemara in Bava Kama (9b) regarding arba minim that there is an obligation to add one third onto the value of the object one is buying to buy a more beautiful one. Shut Mishnas Sachir (81) quotes The Grach Berlin in his approbation to the work Otzar Halacha, that the first third is an obligation which must be paid for with regular money; any amount above and beyond this is not an obligation and can be paid for with ma’aser kesafim. The sefer Erech Shay (Yoreh De’ah 2) explains the same way. However, Shut Maharam Shik (Yoreh De’ah 230) offers an opposite interpretation.))

8. According to all opinions, one may use ma’aser kesafim for a mitzvah that the poor benefit from, ((Ahavas Chesed writes (19:2) that if a person takes the honor of being sandek and thereby pays the expenses of the celebration on behalf of a poor father, this is tzedaka. The fact that he benefits by being sandek is immaterial. In a similar vein, the Chazon Ish(brought in Derech Emuna Matnos Aniyim 7:60) writes that one may not sponsor the publishing of a sefer whose publication is unnecessary, unless the author is a poor person who will be supported by the sales of his book.)) even if one could pay for the mitzvah with regular money. ((Since this is regarded as if he is giving tzedaka to a poor person, not as if he is doing a mitzvah with ma’aser kesafim.)) For example, to buy an aliya to the Torah from ma’aser kesafim, if the money goes to poor people, ((Ahavas Chesed, ibid. See however Shut Panim Me’iros (2:25) that buying an aliya withma’aser kesafim is barter, not tzedaka, since he is getting something in return for his money. Shut Tzemach Tzedek (72) disagrees with this analysis, but the Magen Avraham(end of 144) writes that the custom is not like the Tzemach Tzedek.

It is questionable if ma’aser kesafim may be used to pay for air conditioning. On the one hand, the poor people benefit from this also, and this could be compared to purchasingsefarim for public use which the Ahavas Chesed permits. On the other hand, perhaps this is comparable to the case of the Maharil, that ma’aser kesafim should not be used to purchase candles for shul, even though both rich and poor alike will benefit from them. It is logical to assume that if most of the congregation is poor, one may use ma’aser kesafim to turn on the air conditioning, if one’s intention is that the congregation will benefit. However, if one would pay for the air conditioning even if one is there alone, one should not pay fromma’aser kesafim.))

or if the poor will not have to pay shul membership dues as a result. ((Similar to halacha 4, that wealthy parents who pay a higher level of tuition may deduct the extra they pay from ma’aser kesafim.))

9. A donor who receives a side benefit from his donation does not have to pay the value of that benefit from regular money. ((The side benefit of the mitzva, called tovas hana’ah, belongs to the donor, see Maharil56:7, Ahavas Chesed 19, Tzedaka U’mishpat 6:12.)) Therefore, one may purchase an aliya using ma’aser kesafim to honor a friend, even though the friend will be indebted to him. ((Taz (249:1). Not only may a person purchase an aliya for himself, thereby gaining the mitzvah of tzedaka and the mitzvah of the aliya, he may also honor another person, even though he will be indebted to him.)) In this case, one must intend when purchasing the aliya that one intends to pay using ma’aser kesafim. ((Taz ibid. If he does not have this in mind when making his bid, he becomes obligated to pay the money, and one may not pay such an obligation from ma’aser kesafim (see halacha2 above). Shut Levushei Mordechai (Yoreh De’ah 1:177) discusses whether a person can pay for a “pidyon nefesh” using ma’aser kesafim (such a redemption is more than a regulartovas hana’ah that the Taz described). Presumably, he must make this attempt to save himself, as the possuk writes, “charity saves from death” (Mishlei 10:2). Accordingly, this is an amount he is obligated to spend, which must be paid for with regular funds. He concludes that the basic amount required to make this redemption must be paid for with regular money and any additional donation can be paid for with ma’aser kesafim (similar to matanos la’evyonim according to the Maharil 56). In contrast, Shut Kesav Sofer (Yoreh De’ah 112) rules that a person who is unwell can give ma’aser kesafim to support a Torah Scholar whose learning and davening will be a merit to heal him. He reasons that this is not like hiring a worker, but rather his intention is to give tzedaka, and the resultant merit is onlytovas hana’ah.)) According to some opinions, one may only use ma’aser kesafim to pay the amount that his final bid increased above the previous bid. The amount that the previous bidder offered should be paid for with regular money, since even without this new bid, that money would have been given to tzedaka. ((Shla’ah (Megillah 37), quoted by R’ Akiva Eiger (Yoreh De’ah 249) and Eliya Rabba(Orach Chayim 156). Although the Eliya Rabba writes that this logic is not foolproof, Shut Kesav Sofer (Yoreh De’ah 112) agrees with it. Possibly, the logic of the Eliya Rabba is that even the value of the previous bid could have been paid for with ma’aser kesafim.))

10. One may use ma’aser kesafim to buy a sefer written by a poor person, if he does not need the sefer and is buying it purely to support the poor man. ((Derech Emuna (Matnos Aniyim 7 bi’ur halacha s.v. ve’echad). Since his main intent is to support the poor person (which is high-level tzedaka according to Ahavas Chesed 3:7 quoting Sefer Chassidim), use of the sefer is tovas hana’ah. Since the poor person is benefiting from the money, ma’aser kesafim can be used according to all opinions.))

According to some opinions, regular money should be used for the amount he would have been prepared to pay for the sefer, were the author not to be poor. ((Tzedaka U’mishpat 1:85.))

11. A person who lent a poor person money, and sees that he is unsuccessful in collecting the loan, or decides that he will not do so, may not simply deduct the amount owed from his ma’aser kesafim account. Rather he should give from ma’aser kesafim the amount of the loan to the poor person, stating explicitly that this money is being given to him specifically to pay off his loan. ((Levushei Serad (printed at the end of Sefer Tevu’os Shor) 104, Minchas Yitzchak5:34:8.)) The poor man then returns the money, thereby paying off this loan. ((The poor person may decide to pay off a different loan with the money. Based on the reasoning of the Noda Biyehuda (see footnote 43), the lender cannot stipulate that the poor person pay back the loan to him specifically.)) According to most opinions, this method is effective even for a debt that the lender gave up hope of ever receiving, since the debt nevertheless still exists. ((According to the Ketzos Hachoshen in Choshen Mishpat (163) if one gives up hope of ever receiving a loan, the loan is cancelled. However, the NesivosChacham Tzvi, andTumim all hold that even if the lender gave up hope, he can still collect the debt.)) It would appear, that it is not necessary to give the money to the poor person himself; rather the money can be given to a third person ((The Levushei Serad writes (ibid bi’urim 113) that the money must be given to the poor person, and one may not do this procedure through someone else. He regards doing so as stealing from the poor person, based on Choshen Mishpat (253) that a poor person who lives off charity does not have to pay off debts with the money he receives. In that case, a lender may not take the money away from the poor person without his permission. However, the reason this is regarded as stealing is that it is understood that the person who supports the poor person did not give him money to pay off his debts (see Haghos Mordechai Bava Basra659, brought in Beis Yosef 253). Accordingly, in this case where the lender is giving the poor person money specifically to pay off his debts, there is clearly no stealing.)) who can acquire the money on behalf of the poor person, and then give it back to the lender. ((The lender who does this procedure may certainly take the money from the third party, and there is no issue of him being paid back before previously owed debts, since the rules of priority in paying off loans does not apply to cash (see Choshen Mishpat 104:3 and Sema9).)) According to some opinions, it is enough for the lender to set aside the amount of money, ((The Noda Biyehuda (Yoreh De’ah Tinyana 199) proves this from the mishna in Gittin(30a) that one may lend money to a cohenlevi, or poor person, stipulating that the repayment will made by keeping the ma’asros that are due to them. The Noda Biyehudaexplains that the halacha is like the opinion in the Yerushalmi, that this procedure may be followed even if one did not stipulate originally that one would follow it.)) and take it for himself in place of the loan. ((See the Noda Biyehuda (Yoreh De’ah Kama 73), that regarding ma’aser kesafim, thehalacha follows the most lenient opinion mentioned in the gemorah in Gittin (ibid) of Ula. (Regarding ma’aser of produce, the Rambam and others rule like Rav and Shmuel, theRema (257:5) rules like Ula, and the Shach (ibid 13) argues that the halacha is not like Ula.) )) However, according to some opinions, this method can only be used by a person who originally specified that he is separating ma’aser kesafim bli neder, but not by a person who separates ma’aser kesafim because of an obligation. ((Shut Igros Moshe (Yoreh De’ah 1:153) and Levushei Serad (ibid) write that the Shach(257:12) argues with the Noda Biyehuda, and holds that one cannot pay back one’s loan in this manner. Accordingly, he concludes that only a person who accepted upon himself the giving of ma’aser kesafim bli neder can rely on the Noda Biyehuda. It is noteworthy that it is not clear in the Shach that he argues with the Noda Biyehuda.)) According to some opinions, one needs to ask the poor person permission before doing this; other disagree. ((Noda Biyehuda (199). The Igros Moshe (ibid) disagrees, and holds that one needs to ask permission regarding produce, that the poor person may prefer over cash. Although the Noda Biyehuda does not explain his position, it could be based on the logic presented in the next note.)) Some hold that this procedure can only be done for an amount of money that one would be prepared to give to the poor person, were he not collecting his own loan. ((Noda Biyehuda. He explains, that if this were not the case, the poor would have no source of income, since the wealthy are always owed money, and they would simply cancel the loans owed to them, rather than separating ma’aser afresh.)) There is also a disagreement if this method is effective after the lender has given up hope of ever receiving his money. ((

The Noda Biyehuda writes that even after giving up hope of ever getting paid, one may use this method to collect the debt. However, the gemara in Gittin states explicitly that this is not possible, as the Minchas Yitzchak asks (5:34:8). In fact, the Ketzos proves from thisgemara that it is possible to give up hope of getting paid back, thereby exempting the borrower from the loan (see footnote 36). The opinions who disagree with the Ketzospresumably hold that although one can always collect a loan even if one gave up hope of doing so, one may not deduct it from ma’aser. It could be that the Noda Biyehuda is not referring to a complete giving up hope of ever getting paid back, but rather a feeling that it is very unlikely that he will ever see his money again.

The Minchas Yitzchak however offers a different understanding of the Noda Biyehuda. He explains, that when the gemara writes that one may collect a loan by deducting it from one’s own ma’aser, that was only in a case when that stipulation was made when the loan was given (in that case there is no lean on the borrower, since the lender will be paid back specifically from his own ma’aser). However, with every other loan where the lean is on the borrower, if the lender gives up hope, one may not deduct it from one’s ma’aser.))

 

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