MA'ASER KESAFIM: OBLIGATIONS and EXEMPTIONS

Ma'aser kesafim, tithing one's income for charity, is an age-old practice dating back to our forefathers' days. Avraham gave ma'aser to Malki-Tzedek(1); Yitzchak gave ma'aser(2); and Yaakov, too, says, "And of all that You will give me I will surely give a tenth to You"(3). In addition, tithing is a time-honored formula for becoming wealthy(4), so much so that it is even permitted to give ma'aser with the intent of "testing" Hashem to see if one will become rich through giving tithes(5).

Some poskim imply that tithing is a Biblical obligation(6). Other poskim, noting that there is no explicit commandment in the Torah to tithe one's assets, consider this mitzvah to be Rabbinical in nature(7). These views notwithstanding, many poskim(8) consider ma'aser kesafim as neither a Biblical nor a Rabbinic obligation, but rather as an ancient custom that should be practiced by all Jews. According to this opinion, one who does not give a tenth of his income to charity still fulfills the mitzvah of tzedakah, although he has not done so "properly"(9).

Whether ma'aser kesafim is a Biblical commandment, a Rabbinic ordinance, or an ancient custom is of crucial importance in actual practice. When in doubt about certain applications of a law, for instance, a halachic authority may rule leniently on a Rabbinic or customary mitzvah, but must rule stringently on a Biblical one. Similarly, a Biblical mitzvah must be performed even under duress, while Rabbinical or customary mitzvos can - under certain extenuating circumstances - be dealt with leniently. There are other distinctions as well.

Concerning ma'aser kesafim, therefore, the poskim(10) offer the following advice: In order to avoid potential problems(11), one should stipulate - prior to the first time he gives ma'aser - that he is giving ma'aser beli neder, without the binding force of a vow. If he fails to make this stipulation, he becomes obligated to give ma'aser as if he had vowed to give a tenth of his money to tzedakah, and all the stringencies that apply when fulfilling a pure obligation command would apply to him.

If one had been giving ma'aser under the assumption that all poskim require him to do so, but would now like to give ma'aser only beli neder, he does not require hataras nedarim, an annulment of vows(12). If, however, he had been giving ma'aser knowing all along that he is not absolutely required to do so, he may not discontinue his practice without hataras nedarim(13).

QUESTION: Is a poor person required to give ma'aser kesafim from his income?

DISCUSSION: We have already established that the poskim differ on the degree to which one is obligated to give ma'aser kesafim. We mentioned, therefore, that at the time ma'aser kesafim is initially given, it should be given beli neder. The poskim generally agree that a poor person is not obligated to give ma'aser, in keeping with the principle that "one's life takes precedence over the lives of others"(14). Some poskim advise that although a poor person is exempt from ma'aser, he should, nevertheless, separate the ma'aser and then keep it for himself(15).

The question remains as to the definition of "poor". The poskim maintain that a poor person is one who earns only enough for subsistence. Many poskim define subsistence as having "bread and water"(16) (the basic necessities of food, clothing and shelter). Anyone who has more than that would not be considered a poor person with respect to giving ma'aser(17).

The Brisker Rav is quoted(18) as having ruled that "anyone who finds himself in dire circumstances - so that he needs financial help from others - and does not live a life of luxury at all, but lives frugally, should not give ma'aser. Rather, he should keep his own ma'aser money. A ben Torah in particular should not take money from others if he can use his ma'aser money for himself".

A substantial savings account does not necessarily define a person as "rich" if he is not generating any income on his own. A couple who needs $20,000 to subsist on and earns that amount from interest, is still classified as "poor" if they have no other income. This is especially so if the couple is using the interest or the savings account as their source of income while learning in kollel(19).

One who receives a government subsidy for rent (e.g. Section 8), or one whose rent is paid for him by another individual, is required to include that amount when figuring his overall income for the year(20).

FOOTNOTES:

1 Bereishis 14:20.

2 Rashi Bereishis 26:12.

3 Bereishis 28:22.

4 Tanchume Devarim 18.

5 Rama Y.D. 247:4 based on the verse in Malachi 3:10. Although Pischei Teshuvah 2 quotes dissenting opinions, Aruch ha-Shulchan 6 and Ahavas Chesed 18:1 rule in accordance with the Rama.

6 See Tosefos Chadashim (quoted and rejected by R' Akiva Eiger Pe'ah 1:1); Taz as understood by Aruch ha-Shulchan 249:5; Maharil as understood by Chasam Sofer Y.D. 232.

7 Taz (as understood by Tzitz Eliezer 9:1); R' Akiva Eiger Pe'ah 1:1; Aruch ha-Shulchan 249:2 and other poskim.

8 Bach Y.D. 331; Chavos Yair 224; Ya'avetz 1:3; 2:119; Chasam Sofer Y.D. 331; Yehuda Ya'aleh Y.D. 334. This is the view of the majority of the poskim - see Pischei Teshuvah Y.D. 331:12 and Igros Moshe E.H. 3:43.

9 See Y.D. 249:1 where the Shulchan Aruch rules that the "average" person gives a tenth to charity. Giving less than that is considered "giving with a bad eye," but as long as one gives a third of a shekel, he has fulfilled his minimum obligation.

10 Ahavas Chesed 18:2; Kisvei Harav Henkin 2:81; Minchas Yitzchak 5:34; Igros Moshe Y.D. 1:153; Harav S.Z. Auerbach (Ma'aser Kesafim (Domb) pg. 19).

11 There are numerous complicated issues connected with hilchos ma'aser kesafim - in both the giving and the disbursing end - in which there is no clear ruling or binding custom. Unless one wants to be stringent in all cases, he is advised to follow the poskim who rule that ma'aser kesafim is based on custom. One can then rely on a more lenient view.

12 Y.D. 214:1 and Shach 5.

13 If, as is the custom, one has "pre-nullified" all his vows on Erev Rosh Hashanah, he may then rely on that declaration and consider his customary practices as not having the force of a vow - Minchas Shelomo 91.

14 Rama YD 253:3; Shach 248:1; Chochmas Adam 144:2.

15 Minchas Yitzchak 6:101, based on Tashbatz 2:131.

16 Aruch ha-Shulchan Y.D. 251:5; Harav S.Z. Auerbach (Ma'aser Kesafim pg. 21). See also Igros Moshe Y.D. 2:112 who maintains that one with basic parnasah for a day or two is required to give ma'aser.

17 As opposed to the definition of "poor" regarding the receiving of ma'aser money - Harav S.Z. Auerbach (Ma'aser Kesafim pg. 23).

18 In Am ha-Torah vol. 2, no. 5, pg. 36, by Harav M. Shternbuch.

19 Harav M. Feinstein quoted in Ohalei Yeshurun pg.103. See also Igros Moshe Y.D. 2:112. See also Guide to the Ma'aser Forms pg. 14.

20 Harav S.Z. Auerbach (Am ha-Torah vol. 2, #11, pg. 13-15).