Charitable Obligations in a Torah Society

By Professor Cyril Domb

The parsha of Re-eh contains the major Torah sources on which current Jewish laws and practices of charity are based. These laws are to be found in thirteen chapters of the Yoreh Deah section of the Shulchan Aruch, and because there is no Mishnah Berurah on this section, the laws are not studied much. Because of their importance, the Chofetz Chaim published a special sefer, Ahavat Chessed, in which their practical consequences are explained in detail; this sefer merits close attention.

In the key section of the Yoreh Deah (249:1), R. Yosef Karo (who follows closely the language of Rambam) writes, “The amount to be given is as follows: If he has sufficient resources he should give according to the need of the poor; if his resources do not extend to this, he should give up to one-fifth of his possessions for an ideal fulfillment of the mitzvah, one tenth for a normal fulfillment, and less corresponds to an ungenerous fulfillment.”

Rema comments: “A person should not distribute more than one-fifth so that he himself should not need the support of others.”

The opening clause above is based on the verses (Devarim 15:8): “When in a settlement in the land that G-d your L-rd is giving you, any of your brothers are poor, do not harden your heart or shut your hand against your needy brother. Open your hand generously, and extend to him any credit he needs to take care of his wants.” (Translation: Aryeh Kaplan)

The tenth and the fifth seem to be based on the verse (Devarim 14:22) which deals with tithing; but this verse refers directly to agricultural tithes, whereas the Shulchan Aruch talks of all of his possessions.

One source for this basic Halakha is a Sifrei passage quoted by Tosafot in Taanit 9a (s.v. ‘aser t’aser) but not appearing in our versions:

    “You shall definitely tithe all your agricultural produce which comes forth in the field every year.” From this we could deduce that only agricultural produce must be tithed. How can we deduce that it applies to loan interest, trading, and all other profits? From the word “all”; for the verse could have stated “your agricultural produce”. What is the significance of “all”? To include loan interest, trading, and all other profits.”

A more explicit reference to one-fifth occurs in the Talmud Yerushalmi to Peah 1:1, “These are the things for which there is no precise allocation: Peah and Gemilut Chasadim.” The Gemara comments:

    “The latter applies only to personal aspects, but for monetary aspects there is a precise allocation. This is according to the statement of R. Shimon Ben Lakish in the name of R. Yosi ben Chanina: “At Usha a decision was reached that a man should separate one-fifth of his belongings for a mitzvah [charity].” R. Gamliel ben Ininu asked of R. Mana: “If he allocates one-fifth each year, at the end of five years he has given away the whole.” He replied: “At the outset he gives from capital and subsequently from earnings.”

Further information is given in the Talmud Bavli in Ketubot 50a: R. Ila’a stated: “In Usha an ordinance was enacted that one who gives to charity should not give more than one-fifth.” A Beraita confirms this, “One who gives charity should not give more than one-fifth in case [as a result of doing so] he himself will need the support of others.” Said R. Nachman – others say R. Acha bar Yaakov – what is the scriptured source – “And all that you give me, ‘a’ser aa’srenu‘ for you (i.e. each of those words represents one-tenth).” But the second tenth is not equal to the first tenth [since it is one-tenth of nine-tenths]. Said R. Ashi: “The second word – I shall tithe it – makes the second tithe identical with the first tithe.”

This traditional obligation of giving a tenth (or a fifth) of one’s earnings to charity, Maaser Kesafim, constitutes a self-imposed income tax to be used for charitable purposes. But a host of questions arise when one tries to fulfill the mitzvah in modern life.

How is income defined? Are capital receipts liable, and, if so, how are indivisible assets treated? Is there a specific “tax year”? What expenses are allowed? How is the depreciation of an asset to be taken into account? How is capital investment dealt with? Can a loss in one transaction be offset against a profit in another, and if so during what period of time? In fact, every facet of normal income tax law has its maaser kesafim counterpart.

Some 25 years ago, a group of British scientists and professionals attempted to find answers to these and related questions. Their procedure was first to search the halakhic literature to determine which questions had already been answered. Those which remained were submitted to leading halakhic authorities. The results were then published in a book (Maaser Kesafim, Feldheim 1980) of which a fourth revised edition has recently appeared (1999).

Perhaps the most striking revelation to the group was how ideas expressed in the responsa literature of hundreds of years ago could, with the guidance of expert halakhists, be applied to modern society. For example, in calculating business profits it is necessary to value stocks and assets. Is it legitimate to use modern commercial accounting practices for Maaser purposes? R. Yitzhak Yaakov Weiss (z”tl) drew attention to a key idea suggested by R. Yair Chaim Bachrach (1638-1702) that for certain purposes Maaser (representing the Almighty) should be regarded as a partner; accounts should be prepared not less favorably than between partners. By putting forward this idea, R. Weiss also made available the section of Choshen Mishpat dealing with laws between partners which could be used for analogous questions.

Even more remarkable was the answer R. Weiss provided to a question on business expenses. Would a person be allowed to buy a Rolls Royce, rather than a smaller car, for the sake of business prestige? In an exchange of correspondence between R. Yair Chaim Bachrach and R. David Oppenheim (Chavot Yair, Responsum 224), the latter says the following:

    “With the help of the Almighty I originated two decisions which came before me. One of the members of a partnership registered a complaint about two items in his partner’s budget. First, that he had included as an expense a new garment which he had obtained for the purpose of journeying to a distant market. This was unjustified since he needed to clothe himself anyhow…. I decided in regard to the first item that if it was an average garment without silver buttons, and one which traders were accustomed to wear on their travels, his expense was justified…. “A Rolls Royce is analogous to a suit with silver buttons,” said R. Weiss. (The answers given to the group by R. Weiss are reproduced in Minhat Yitzhak, Volume 5, Responsa 34 and 35, and Volume 6 Responsum 101.)

The concept of charity in a Torah society differs radically from that of the gentile world which emphasizes the kindness and generosity of the donor for which the recipient must be deeply grateful. In Jewish tradition both the donor and recipient are playing their part in a halakhic process; the community may impose a charity levy and has the right to enforce it. Until Messianic times, the Torah envisages that poverty will continue (Devarim 15:11), and we must remember that many leading Talmudic personalities and outstanding scholars in Jewish history were desperately poor. But in a sense, it is the donor who owes a debt of gratitude to the recipient for giving him the privilege of performing such a vital mitzvah.
Dr. Cyril Domb is the Director of the Nebenzahl Institute of Human Safety and Accident Prevention at the Jerusalem College of Technology. He is also an Emeritus Professor of Physics at Bar-Ilan University, and the author of Maaser Kesafim.