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IN-DEPTH FEATURES
Ma'aseir Kesofim

Part II

The first part of this review of the laws of tzedokoh and ma'aseir kesofim, which appeared last year in the edition of Parshas Terumah, discussed the general benefits of giving tzedokoh, and the source of the obligation to give a yearly tithe of our income.

In this article we will start by discussing how to compute one's income for purposes of ma'aseir. We will continue with a section describing how one may use his ma'aseir money.

Computing Income

The basic halacha is spelled out by the Yerushalmi in the beginning of Maseches Pei'o. The gemora asks how one can be required to give one fifth (the Yerushalmi's equivalent to our ma'aseir) since after five years he will be left with nothing.

The gemora answers that although one always gives a fifth, the basis for computing the fifth changes. At the outset one must separate one fifth of the principle, in the ensuing years he gives one fifth only from the income or profit he earns in that year from use of the principle.

In practice, this means that when one receives new capital he should begin by giving ma'aseir from the amount received. In each of the following years he need give ma'aseir only from the profit earned that year. This is the halacha in the Shulchan Oruch (249,1).

As a result of the Yerushalmi, we must study which types of principle and which profits require ma'aseir.

Which Principle

Principle which is obtained by receiving a present or finding a lost object requires ma'aseiring.

Likewise, an inheritance is subject to ma'aseir (Elya Rabbo 156). This is true even if the deceased already separated ma'aseir when he originally acquired the money.

The logic is that ma'aseir is subjective and not objective. This means that each person who acquires the money is required to give ma'aseir. In this sense, ma'aseir kesofim is very different from ma'aseir on agricultural produce which requires tithing only once.

A topic which occupies a prominent place in the literature is ma'aseir on a dowry. The Ya'avetz (6) says that it is subject to ma'aseir. However, the common practice was that the parents would separate and disburse the ma'aseir. The Ya'avetz condones this practice, in general.

The Igros Moshe (2,112) discusses a case where a father-in-law gave a dowry to his son-in-law with the express stipulation that the son-in-law use the money in order to continue his learning. The father-in-law, furthermore, committed himself to provide further assistance based upon future needs. The father-in-law proceeded to deposit the money into an interest-bearing account.

Reb Moshe zt'l ruled that the son-in-law should not give ma'aseir from the principle since that would adversely affect the father-in-law. However, the son-in-law should in certain circumstances give ma'aseir from the interest.

Of course, one's salary is subject to ma'aseir. This includes the salary paid by a kollel. It is true that many people who learn in kollel are exempt from giving ma'aseir since they do not earn enough money to support themselves. However, if they are self-sufficient they have to give ma'aseir from their kollel salary (see Tzedokoh Umishpat 5:5, 28) since a kollel stipend is considered a salary like any other salary.

Presents

An important issue is how to treat nonmonetary gifts. We do know that we must give ma'aseir from a gift of money. However, a present which is not money is the subject of many diverse opinions.

The Tzedokoh Umishpat (5:5, 27) feels that it depends on what a person would have done had he not received the present. If he would have purchased it using his own funds then he should consider this amount as added on to his net worth and therefore, it is subject to ma'aseir. However, if he would not have otherwise purchased the object then he does not need to give ma'aseir.

Another opinion was expressed by the Shearis Simcha of Rav Bamberger zt'l. He says that one need not sell a gift in order to obtain money with which to ma'aseir the gift. However, when he does eventually (if he does) sell the gift, then he should give ma'aseir. (It is not clear what happens if one uses the money to purchase another similar object e.g. what to do if one received an apartment as a gift and then sold it in order to purchase another apartment.)

The sefer, Ma'aseir Kesofim quotes the Yosef Ometz to the effect that the ancient custom in Frankfurt, Germany was not to give ma'aseir from a house which was inherited or received as a present. However, in such a case they would evaluate how much they would have spent on renting a house which would have suited their needs. The amount they would have spent was then added on to their income for that year for calculating their ma'aseir kesofim. (They lived the adage, "A penny saved is a penny earned.")

Rav Chaim Kanievsky, records the psak of the Chazon Ish in his Derech Emuno (Tziyun Halacha 67). He said that one does not give ma'aseir from presents received. However, one who receives money, even if it is earmarked by the donor for a specific purpose, does need to give ma'aseir. The Chazon Ish reasoned that the donor would not mind, in general, if some of the money was used for ma'aseir.

The Chazon Ish further ruled that if giving ma'aseir will hinder purchase of the object then one should purchase the object and postpone giving ma'aseir until later. He should give whatever ma'aseir he can give right away and mark down the remainder as a debt he owes to ma'aseir.

In accordance with these rules, the Chazon Ish told a chosson whose parents and in-laws had given him money to purchase an apartment that he should give ma'aseir. However, had the parents paid for the apartment directly then the chosson would not have needed to give ma'aseir even if the apartment was selected by the children themselves.

It seems therefore, that according to the Chazon Ish it is within a person's capabilities to determine if he will need to give ma'aseir or not.

Profit

We mentioned at the outset the gemora in Pei'o which states that one's profits are subject to ma'aseir. For example, the Sifrei says that if one profits by lending for interest he should give ma'aseir.

Profit earned as a result of having bought and sold an item is subject to ma'aseir. Rav Moshe Feinstein (Yore De'ah 2, 114) discusses the question of a long term acquisition where part of the increase in value is due to inflation.

He rules that one needs to give ma'aseir only on the pure profit i.e. he should factor out the inflation. The amount which may be attributed to inflation is the percentage increase in the basic consumer breadbasket. (One should note that this is not necessarily equivalent to what the government publicizes as being the increase in the Cost of Living.)

We should note that one does not take off ma'aseir at the time when his purchases go up in value. It is only at the time when he sells the goods and actually realizes a profit that he should give ma'aseir.

The acharonim discuss what to do when one is involved in several ventures some of which were profitable while others produced less. Can one deduct his losses from his profits and only take ma'aseir from his net profits?

Computing Net Profit

The acharonim pasken that there is a method whereby one certainly may deduct his losses from his profits.

The Chofetz Chaim (18,2) and others advise that one should select a day at least once a year when he will make an accounting of all his dealings.

He should total all the profit he has earned since the last previous time he took accounting. He should do the same for all the losses he has taken in the interim. He should deduct his total loss from his total profit. This yields his net profit. A tenth of this is the amount he should give as ma'aseir

We should note that in computing a person's profit or loss he should deal with total cost and not just the amount paid directly for purchasing an item. The basic rule is that expenses which are a direct result of or which directly affect a person's profit should be included in the cost.

It was on this basis that Rav Moshe Feinstein writes (Yore De'ah 1, 143) that one can deduct the amount of income tax he paid, from his earnings. He can also deduct the real estate tax he pays on his place of business. However other taxes which apply to all people equally such as a poll tax or head tax would not be deductible since they are not directly related to his profits.

This is the opinion of other acharonim as well. Thus the Beis Din Shel Shlomo rules that if a person's business compels him to travel then he may consider the additional price of food away from home as an expense. Similarly, if one must purchase special clothing in order to engage in his business, e.g. a uniform, he may deduct this from his profit.

One must be careful to deduct only the added expense which results from engaging in business. For example, Rav Weiss writes in the Minchos Yitzchok (5, 34) that if one needs to buy a better suit due to his business he may only deduct the additional amount which he needed to pay for the suit and not the entire cost of the suit. Similarly, if one buys a suit which is fancier than necessary for business he cannot deduct the amount which he added on due to his desire to purchase the fancier suit.

Similarly, Rav Yaakov Blau writes (Tzedokoh Umishpat 5:8, 35) that if a woman's job necessitates hiring domestic help she may deduct the cost of the help from her income. However, if the help saves money by doing jobs which the ba'alas habayis would not have done herself then that amount may not be deducted. For example: if the hired help launders the shirts which otherwise would have been given to the laundromat, the cost of the help which is attributed to laundering cannot be deducted.

Based on the above, one can compute his adjusted profit. It is from this amount that one deducts his losses and computes his ma'aseir.

Next, the person should total how much he actually gave during the period under consideration. He then compares this with the amount he should have given. If the amount he gave is less than the amount he should have given, he should immediately set aside the difference for ma'aseir. As quickly as possible he should distribute these amounts.

If he already gave more tzedokoh than was necessary for this period, there is a dispute if the extra amount may be applied toward the next period (see Ahavas Chesed 18:2, 5). Therefore, the Chofetz Chaim advises that he should stipulate, when he begins giving ma'aseir, his intention to apply any surplus amounts towards the next period of computation.

Ma'aseir Expenditures

Having determined how much money a person must give we will now study for which causes one may give these monies.

There is a basic dispute what outlays are considered to be proper ma'aseir expenses.

One opinion (Ramo 249,1; according to some) is that ma'aseir should be spent specifically and solely in a manner which will benefit the needy.

The other opinion is that one can use ma'aseir money in order to fulfill other mitzvos which he would not have been able to fulfill without this money.

The Chasam Sofer (Yore De'ah 231) explains that there is no dispute. If one specifies when he begins ma'aseiring that he intends to use his ma'aseir money for all mitzvos then he may do so. However, if he used his ma'aseir three consecutive times for poor people then he may not start using his ma'aseir to fulfill other mitzvos.

The Chofetz Chaim (Ahavas Chesed 19, 1) gives us direction how to appropriate our ma'aseir money. He says that if a person has poor family members then he should give them first priority. He may use his ma'aseir to help them even if he could provide for them with non- ma'aseir funds. This last statement is true for all family members besides parents. When one must support his parents, he can only use his ma'aseir money provided that he does not have other funds with which to sustain them.

If one does not need to use all his ma'aseir money in order to provide for his relatives then the next priority is poor people who learn Torah. The Tzedokoh Umishpat (6, 12) says that this includes giving money directly to a kollel most of whose members are poor. The Chofetz Chaim says that in a way this use brings more brocho to the benefactors since the gemora says in a number of places that helping talmidei chachomim brings a person brocho (see Brochos 42 A for example).

(It would seem that the ruling of the Chofetz Chaim in the next paragraph would sometimes apply here as well. Even if only a minority of the avreichim are poor, nevertheless they may need the others in order to form a full- fledged kollel.)

The Chofetz Chaim continues by pointing out that one can certainly use his ma'aseir money to do mitzvos which will benefit poor people. For example, one may certainly use his ma'aseir money to assist poor people in getting married. Another example, is that one could open a seforim gemach i.e. he could use his ma'aseir money to purchase seforim which would then be lent to others who lack the funds necessary to purchase seforim. If on the other hand, the seforim are lent to the general public, then the permissibility of using ma'aseir money is questionable since while this act is a mitzvah it does not necessarily benefit poor people.

Finally, one may definitely not use his ma'aseir money to enable him to fulfill required mitzvos. Thus one can not use his ma'aseir to buy a lulav, for example.

As we mentioned in the previous article, the Chofetz Chaim is a firm supporter of the Gra's opinion that if possible one should give a fifth. He also wrote that since giving a tenth is so powerful and beneficial, it is best to separate two times one tenth (19, 4). He continues that it is most proper to use one of the tenths to support those who learn Torah and the other tenth to fulfill nonobligatory mitzvos.

This psak is based upon an analogy to the Torah's commandments concerning agricultural produce. One must give ma'aseir two times. The first, ma'aseir rishon, is for the Levi who is supposed to dedicate his life to Hashem's service and to teach Torah. The second, ma'aseir sheini, is to be used for other mitzvos. Ideally one should purchase sacrifices to bring and eat in Yerushalayim, or otherwise eat the ma'aseir sheini in Yerushalayim and gain in yiras Shomayim.

We should mention that even the Chofetz Chaim says (19, 4) that not everyone should be giving a chomesh. A person who will be under financial strain if he gives one fifth is not required to do so.

We will now discuss the permissibility of paying certain expenses with ma'aseir money. Our first example is school tuition.

School Tuition for Children

Rav Moshe Feinstein discusses (Yore De'ah 2, 113) the question of using ma'aseir money to pay for the school tuition of one's children.

He disapproves of this practice based upon the rule that one cannot use ma'aseir money to pay for obligatory mitzvos. Since a person is required to ensure that his sons receive a proper Torah education, he may not use ma'aseir for this purpose. (It would follow that if the parents cannot afford to pay and the father's father picks up the tab, he would not be able to deduct the outlay from ma'aseir either. This is because a father's father is required to pay for his grandson's Torah education (see Yore De'ah 245, 3-4 and Shach).

Rav Moshe has an interesting approach to the question of paying for a daughter's education. A man does not have a mitzvah to teach his daughter Torah. Therefore, it would seem that ma'aseir could pay for this.

Rav Moshe argues, however, that since the secular law requires every person to send his daughter to a school, a person is paying for Beis Yaakov in order to avoid sending his daughter to public school. A girl who attends public school will not receive a proper Jewish education. This will affect her emunah in Hashem, her middos and her shemiras hamitzvos. Therefore, a person must pay to keep his daughter out of public school. Since this is a Torah requirement, he cannot use ma'aseir money for this purpose either.

Another recent poseik who discusses this question is the Minchas Yitzchok. He (10, 85) quotes the Be'er Sheva as saying that a person may not use ma'aseir money to pay for the education of either sons or daughters. Rav Moshe's logic concerning girls' education would not explain the statement of the Be'er Sheva since compulsory education did not exist then. The Minchas Yitzchok does not have any explanation either but seems to follow the Be'er Sheva nonetheless. He further writes that when children reach the age when their father is no longer halachically obligated to pay for their education, the parents may use ma'aseir to pay tuition.

Perhaps, one can understand the Be'er Sheva better in light of a responsa (Achiezer 3; 79, 6) of Rav Chaim Ozer Grodzinsky. He permits a town to divert money which was originally earmarked for boys' education, for use by the local Beis Ya'akov. His heter is based on the fact that the boys education system ran a surplus and, "It is a great mitzvah to support the Beis Yaakov which instills in its pupils emunah and yiras Shomayim and educates in the traditional manner."

It would follow from this discussion that at the time when the factors which require a man to pay for his child's education no longer apply, he will be permitted to pay for these expenses by using ma'aseir.

Thus, logic would imply that according to Rav Moshe Feinstein one may use his ma'aseir money to pay for his daughter's education provided that she is at an age where her education is no longer compulsory. For example, one could use his ma'aseir money to subsidize at least a part of his daughter's seminary tuition. (We will discuss later why we only say a part.)

However, if the reason one may not use his ma'aseir money is because it is necessary to teach girls emunah, yiras Shomayim and middos, then it can be argued that one cannot use ma'aseir money to pay for seminary education either. The reason is that many would argue that seminary education is necessary in order to ensure a girl's emunah, middos, and yiras Shomayim.

Similarly, when a father is no longer obligated by the Torah to teach his son Torah, the Tzedokoh Umishpat (6, 14) states that he may deduct the cost of yeshiva from his ma'aseir. However, he notes (35) that the Shulchan Oruch maintains that a father is required to educate his son until he reaches a level where he is capable of studying Torah independently.

He further warns (35) that the cost of seminary or yeshiva does not go entirely towards teaching Torah. A significant amount of the tuition is applied towards noneducational expenses such as room and board. At the least, a person must deduct the amount he saves on room and board by sending his child away to school. Ma'aseir can only, at most, be used to pay the remainder.

Supporting a Child in Kollel

One who marries off a child who wishes to continue learning must deal carefully if he would like to use his ma'aseir for this purpose.

The Chasam Sofer (Responsa Yore De'ah 231) explains that when a person obligates himself to support his children he is effectively creating a personal debt. He cannot use his ma'aseir money to pay back his debts even if a mitzvah caused the debt and even if he was not halachically obligated to indebt himself in the first place.

However, if at the time he accepted upon himself this obligation he intended to pay up with his ma'aseir money, then it was not himself that he obligated. Rather, he obligated his ma'aseir account. Therefore, ma'aseir can pay back its own debts.

This same rule applies to one who buys an aliya in shul. The Taz (249, 1) rules that if at the time of purchase a person intended to use his ma'aseir money to pay, then he may do so. However, if he did not intend to pay in this manner at the time of purchase, he may not later use his ma'aseir money to pay for the aliya.

If one never obligated himself to support his children after marriage, he may use his ma'aseir money for this purpose if his children are needy. The reason is that he is not paying back a debt. Rather, he is making a direct contribution to a needy relative. In this situation, it is very proper to use ma'aseir to help support the children. In fact, as we mentioned earlier, the optimal use of ma'aseir is to support needy relatives. This is especially true if the needy relatives are studying Torah.

Rav Moshe Feinstein (Yore De'ah 1, 144) discusses whether a person can start giving tzedokoh in order to enable a relative to continue learning in the future.

The situation involved one brother who planned to learn in a kollel. He was not yet even engaged. However, his brothers wished to begin giving him their ma'aseir immediately since they feared they would not be able to muster sufficient funds if they would begin giving the brother only after he married.

Rav Moshe makes a number of points.

He paskens that they can start giving their ma'aseir right now to the unmarried brother. He says they must actually transfer the money to the brother right away and not wait until he needs it. If they are afraid that he may decide not to continue learning (or not need the money), they can deposit it in a special account which the brother could only draw on if and when he would need the money in order to continue learning.

Finally, he says that even though strictly speaking they could give all their ma'aseir to this brother it is not proper to do so. He argues that people will notice their failure to donate to other causes and this will cause a chillul Hashem. Therefore, they should give the major part of their ma'aseir to the brother and the remainder to other worthy institutions.

Supporting Children

The same principles which guided the gedolim in deciding if one could use his ma'aseir money to pay tuition, determined their ruling concerning supporting children generally.

The Shulchan Oruch writes (251, 3), "One who supports his older children (Shach 4: older than six years old) so that his sons learn Torah and his daughters receive proper training is engaging in an act of tzedokoh." The phrase, "An act of tzedokoh" would seem to indicate that one may use his ma'aseir to support these children.

This is in fact, the opinion of the Maharam of Rothenberg as is quoted by the Shach (249, 3). He states that one may apply his tzedokoh money for this purpose even though he is perfectly capable of supporting his family without resorting to ma'aseir money.

This is also the opinion of the Or HaChaim as quoted by the Birkei Yosef (249, 18). He attributes to this principle, the practice of many who did not appear as being careful in giving ma'aseir. They supported their children who were over six years old. Since more than one tenth of their income was allocated towards this expenditure, they reckoned that certainly they distributed more than the required ma'aseir.

The Chida writing in the Birkei Yosef disagrees. He argues that there are two reasons to shun this practice. First, even if this expenditure qualified for use of ma'aseir money, one must first compute his ma'aseir and then keep track of how much money he gave for ma'aseir. Then, if one has given away his entire ma'aseir perhaps he may be free from any further obligation. However, he should not just estimate his ma'aseir while confidently assuming that he has given away his entire requirement. Such a practice violates the Mishna which admonishes "al tarbeh le'aser umodos -- do not estimate ma'aseir."

The second argument of the Chida is that a person would support his children even if there were no mitzvah. Therefore, it is similar to using his ma'aseir to pay for required mitzvos which we saw before is not permitted.

Joining with the Chida is the Taz (249, 1) whose argument is very similar to the second argument of the Chida.

Recent gedolim have discussed this question as well. The Derech Emunah (Chapter 7, Footnote 63) quotes the Chazon Ish as having ruled that one may not use ma'aseir for child support.

Rav Moshe Feinstein (Yore De'ah, 143) claims that the previous dispute is no longer germane under almost any circumstances. He argues that today, when child labor is illegal or shunned, a man is required to support all his children who dwell together with their mother as long as she is his wife. This is part of his obligation to support his wife under the terms of her kesuba. Therefore, a person may not use ma'aseir money to support children who are below the age where it is normal for a child in this family in this community to find employment. This is because once again the halacha requires him to sustain them.

Thus, according to Rav Moshe, child support is generally required and does not qualify as a ma'aseir expenditure.

While Reb Moshe rules against child support in general, Rav Weiss (Minchas Yitzchok 8:5, 3) writes that one can use his ma'aseir money in order to ensure that his son will have good companions.

This ruling in no way conflicts with the previous ruling of Rav Moshe. When a person marries, he obligates himself in the kesuba to support his wife's children. As we mentioned before, ma'aseir cannot be used to cover a person's obligations.

Assuring that a child has the proper friends is extremely important. However, a parent is not satisfying a specific monetary obligation when he pays people to ensure that his son will have proper friends. Therefore, he can use ma'aseir money to cover the cost.

Obligatory Mitzvos

In general, a person may not use ma'aseir money to fulfill mitzvos that he is anyway required to do. However, one can use ma'aseir money to fulfill certain mitzvos.

For example, the Mishnah Berurah (694, 3) rules that if one gives more than the required amount for matonos le'evyonim on Purim, he may charge the additional amount to ma'aseir.

The Tzedokoh Umishpat (6, 37) argues that perhaps the Mishna Berurah only permits using ma'aseir money to pay for the matonos le'evyonim given to more than two people. However, if one gives a larger than required amount of matonos le'evyonim to two poor people, perhaps he cannot charge ma'aseir for the added expense.

The difference is that when one gives a poor person a larger than necessary amount he is fulfilling his mitzvah of matonos le'evyonim in a superior manner. However, a matono le'evyonim given to a non-required person is completely voluntary, thus permitting use of ma'aseir money.

Even when an expenditure is only required in order to adhere to a minhag one may not use ma'aseir money. For example, the Mishnah Berurah (605, 6) rules that one may not use ma'aseir money to redeem kaporos. Since kaporos is merely a minhag, we have proof for the statement made at the start of this paragraph.

Purchasing Seforim

Another interesting use of ma'aseir money is in purchasing seforim. The Shach (249, 3) brings a Teshuvos Maharam that under certain conditions, one may use his ma'aseir money in order to purchase seforim. The first condition is that he will make the seforim available for public use.

The second condition is that personal financial conditions would have made this expenditure prohibitive if he could not resort to using his ma'aseir money.

Even when one fulfills these conditions this practice is controversial. One objection is raised by the Be'er Sheva. He argues that this practice should be forbidden since the Rosh paskens (and we follow this approach, see Yore De'ah 270, 2) that today, the mitzvah of purchasing a sefer Torah encompasses a mitzvah to purchase seforim. Thus, it would be an obligatory mitzvah, precluding use of ma'aseir money.

Another posek who opposes this practice is the Oruch Hashulchan (249, 10). He asks that if one is permitted to purchase seforim with ma'aseir when he loans them to others, then one should be able to do the same with his tallis, tefillin and other things. He also argues that if one used his ma'aseir to purchase seforim, the seforim are public property. As such, the public could require the individual to place his seforim in a public area in order to facilitate access.

The Taz and Shach specifically require the purchaser to inscribe the fact that the seforim were purchased with ma'aseir money. The purpose is to ensure that his heirs will treat them accordingly. The Tzedokoh Umishpat brings the Nachalas Shiv'o who explains that our goal is to ensure that they will continue lending out the seforim.

The Chofetz Chaim (19, 2) says that if the purchaser's true intent was to make the seforim available to others who could not afford to buy them, then it is certainly permitted. The rationale is that this in itself is an act of tzedokoh. The fact that they are available for use by the purchaser as well, does not lessen this.

Therefore, certainly one could use his ma'aseir money to purchase seforim which will be placed in a beis medrash for public use. The Chasam Sofer (Responsa, Yore De'ah 244) in fact, says that this is a tremendous mitzvah since it assists the general public in studying Torah.

Based on the rules mentioned previously, one may donate his ma'aseir money in order to enable the public to fulfill other mitzvos as well. Examples would be a drive to build or maintain a shul, mikveh or yeshiva.

However, the tzibbur has the power to force each individual to contribute. If they do so then the Taz (249, 1) rules that one may no longer use his ma'aseir in order to pay up his allocation. By forcing, the tzibbur has rendered it a required expenditure. As we learned previously one may not use his ma'aseir money to pay up his debts.

We have studied how to compute one's ma'aseir requirement and how one may spend this sum. We have seen that one should compute his ma'aseir based on his total income and not on the amount he is able to save as some people erroneously do.

Whenever the yetzer hora tries to convince us not to fulfill the mitzvah properly, we should remember that the reward for fulfilling this mitzvah properly easily outweighs the expense.

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