Two Views on the Theological Limits of Ownership - The Case of Tzedaka

A glaring contradiction in regard to the mitzvah of tzedaka attracted the attention of numerous rishonim. The Gemara (Bava Batra 8b) records an instance in which Rava coerced Rav Natan to contribute 400 zuz to charity. Another Gemara (Chulin 110b), however, stipulates that any commandment whose reward is written alongside the mitzvah is not subject to coercion by beit din. Given that the Torah writes "so that your life shall be lengthened" (Devarim 15:10) in regard to one who fulfills this mitzvah, it is difficult to understand why coercion was permitted in regard to the disbursement of charity.

The commentaries put forward a host of answers. Avnei Miluim (71:4, citing Sefer Ha'ikarim), for example, suggests that in fact the reward is not promised to everyone who donates. Rather, a careful reading of the pesukim indicates that the reward is available only to those who give with an open heart. Thus, there is no reward promised in regard to one who is coerced to give tzedaka, and such compulsion is permissible.

Tosafot (Bava Batra ibid. s.v. achfei), for their part, offer no less than four solutions:

1) Rabbeinu Tam explains that Rava did not utilize physical force in collecting from Rav Natan; Rava merely coerced him verbally. Such kefiya does not violate the principle set forth in Chulin.

2) Rabbeinu Tam further suggests that although qua mitzvat tzedaka compulsion is impermissible, the Gemara refers to a scenario in which the town's inhabitants had previously accepted upon themselves to require each resident to contribute. Thus, the *kefiya *is not a function of the biblical obligation but of the consent of the townspeople, and is allowed.

3) R"i notes that tzedaka contains both a positive and negative commandment. Rava's coercion of Rav Natan was permitted not due to the aseh but the lo ta'aseh.

4) Ritzvah proposes that in fact beit din is permitted to coerce concerning such mitzvot. The Gemara Chulin merely means to stipulate that regarding commandments whose reward is written alongside, if beit din neglects to engage in coercion they are not punished for that failure.

Each of Tosafot's proposed resolutions is important and bears directly on the sugya of tzedaka, kefiyat beit din, or both. For our purposes, however, I'd like to focus our attention on another perspective. The outstanding Spanish commentator Ritva takes up Tosafot's question in two contexts. Both pieces are worth citing:

ותירץ רבינו דשאני הכא דגלי ביה קרא דכתיב ועשית אזהרה לב"ד שיעשוך, ולא גמרינן מינה לעלמא משום דהכא לאו משום מצוה דרמיא עליה בלחוד כייפינן אלא מפני שחייב עצמו ונכסיו לגבוה או לעניים, וכשם שכופין אותו לפרוע מה שחייב להדיוט, שלא יהא כח הדיוט חמור מהקדש…

And our teacher answered that it is different here because the Torah revealed as is written: "And you shall do" – it is a commandment upon the court to cause him to do it. We do not deduce a general rule from this for here the compulsion is not because of a commandment that falls upon him, but because he obligated himself and his property to the Temple or to the poor. Just as we force a person to pay what he owes to an individual, the strength of the individual should not be greater than that of the Temple… (Rosh Hashanah 6a s.v. ve'asita)

In this passage, Ritva's argument seems to run as follows: it is true that tzedaka generally is not subject to coercion. Here, though, we are discussing an instance in which the individual has accepted an oral vow of charity. His money, therefore, no longer belongs to himself but, in the instances of hekdesh and charity, to the Temple treasury or beit din respectively.

Let's now examine Ritva's second treatment of our subject, in which he seems to take the argument one step further:

התם הוא בשאר מצות כגון כבוד אב ואם וכיוצא בזה, אבל לענין צדקה כייפינן מפני מחסורם של עניים וכדכתב רחמנא ועשית אזהרה לב"ד שיעשוך, ואע"ג דההוא גבי נודר כתיב, גלי רחמנא בצדקה שהוציא בפיו והוא הדין לכל צדקה משום מחסורם של עניים. However, with regard to charity, we do compel him because of the poverty of the needy, as it is written in the Torah: "and you shall do" – it is a commandment to the court to cause him to do it. And even though that is written with reference to oaths, the Torah reveals that [it is also the case] for charity in which he expresses [a commitment] verbally, and that it is also the case in all instances of charity because of the poverty of the needy. (Ketuvot 49b s.v. aval)

In this piece, by contrast, Ritva seems to present a more far-reaching explanation as to the import of the Talmudic exegesis "ve'asita - this is a mandate that beit din coerce you." Here, Ritva does not limit his comments to an instance of one who has promised to give tzedaka. Rather, due to the lacking of the poor, beit din has the right - nay, obligation - of coercion. There are two aspects to the mandate of tzedaka. In addition to the owner's responsibility to give, there is an additional shibbud, lien, on his property. It is for this reason to this that beit din may coerce.

What is the basis for that lien? Here we must consider one final comment of Ritva. In regard to to the sugya of אמירתו לגבוה כמסירתו להדיוט, which teaches that by merely santcifying an object orally, it immediately assumes the status of hekdesh, Ritva writes (Kiddushin 27a s.v. umide-ka'amar; see also 28b s.v. amirato):

ואיכא למימר דהני מילי לאחיובי מדין נדר שאם מקבל עליו לעשות או לתת להקדש או לעניים ולכל דבר מצוה אפילו דבר שאינו ברשותו כופין אותו לקיימו וממשכנין עליו, כמו שכתוב מוצא שפתיך וגו' ואמרינן (ר"ה ו' א') אזהרה לבית דין שיעשוך, ועל כל הכתובים בפרשה הדבר אמור

One can say that these words involve obligating him on the basis of a vow. For if he accepts upon himself to perform or give to hekdesh or to the poor or any mitzvah, even in regard to an object not in his possession, we force him to fulfill [his vow] and dislodge the object, based on the verse "that which emerges from your mouth, etc." And we state (Rosh Hashanah 6a), "This constitutes a warning to the court of law to coerce you." For upon all that is written in this parsha it is stated...

This is an astounding idea: the basis for the court's ability to coerce is rooted in the same category as amirato le-gavoah. It is almost as if Ritva means to say that to give to a poor person is akin to giving to God. Ultimately all property belongs to the Almighty. God temporarily grants us the money as stewards for the purpose of allocating the money to the needy and other religious ends.

In sharp contrast to Ritva's lien, consider the following passage in Rashba's novella to Ketuvot (49b s.v. ki hava):

מיהו לא נחתינן לנכסיה, והיכא דליתיה נמי דלא אפשר למיכפייה לא זנינן להו לבניה מנכסיה כי היכי דלא עבדינן צדקה מנכסיו.

However, we do not descend into his possessions. Further, when he is not present and we are therefore unable to descend into his possessions, we do not support the children from his property, just as we do not turn his possessions into charity.

Rashba denies that charity is subject to a lien on the giver's property, with the attending consequences of that position.

[Interestingly, other rishonim and acharonim are divided in regard to the question of shibbud. Rambam (Matnot Aniyim 10:7), as understood by Radbaz (ibid.) and Kesef Mishneh (Nachalot 11:11), follows Ritva. Ketzot ha-Choshen (39:1) claims that fundamentally there is no shibbud, and the only basis for coercion is the degree of kefiya allowed by any מלוה הכתובה בתורה. See also Machanei Ephraim Hilchot Tzedaka 1 and Kovetz Shiurim Bava Batra 668.]

In light of our earlier analysis ( of Rashba and Ritva's treatment of מיתה לזה ותשלומין לזה, it seems clear that Rashba and Ritva are again - in consistent fashion - engaging in a larger theological debate concerning the nature of property ownership. For Rashba, human ownership is legally complete. God's role as Creator, while philosophically important, stands in the halakhic background and not at the forefront. For Ritva, however, God has given us our money with moral and legal strings attached. God gives us wealth to assist the other and to rededicate our possessions to His service. Beit din can coerce tzedaka not due to the technical obligation but because of an argument that ultimately runs far deeper: the money never fully belonged to me in the first place.

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