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Vol 38.19 - Pinchas 2                        Spanish French Audio  Video

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Rambam   Rambam - Matnot Aniyim  Talmud-Gittin (cache)
Summary:
 
(5750) "The guardians must make, on behalf of the orphans ... All mitzvot that have a fixed measure ...as part of their education. We do not, however, levy charitable assessments against their property, even for the sake of the redemption of captives. The rationale is that such mitzvot have no limit to them."  (Rambam Hil. Nechalot 11:10).

The difference between an orphan to a person who loses his intellectual faculties (Shoteh) or becomes a deaf-mute (Cheireish) where the court levies charitable assessments (ibid 11)

Explanation of Rambam's wording and the end of Hilchot Nechalot (ibid 12 and Sefer Mishpatim) that a guardian "must keep a personal account, being extremely precise, so as not to incur the wrath of the Father of these orphans, He who rides upon the heavens, as Psalms 68:5-6 states: "Make a path for He who rides upon the heavens... the Father of orphans."
 

Translation:

1. Rambam writes in Hilchot Nachalot (11:10):

“The guardians must make a lulav, a Sukkah, Tzitzit, a Shofar, a Torah scroll, Tefillin, Mezuzot and a Megillah on behalf of the orphans. The general principle is: All Mitzvot that have a fixed measure - whether of Scriptural or Rabbinic origin - should be made available for them, although they are obligated in these Mitzvot only as part of their education. We do not, however, dispense Tzedakah on their behalf against their property, even for the sake of the redemption of captives (which is a “great Mitzvah”). For these Mitzvot have no limit to them”.

The source of the matter is in Tractate Gittin (52a):

“The guardians make the following items for them: A lulav . . But they do not dispense Tzedakah on their behalf, nor redeem captives on their behalf. Nor may they do anything with the orphans’ property that does not involve a fixed expense”.

Rashi explains there: “Tzedakah, has no limit, for at each moment there are poor persons. Thus, we find that their funds will be depleted”.

Seemingly, this law requires clarification: Why are orphans different from other people?

The concern that,

“Tzedakah has no limit, for at each moment there are poor persons. Thus, we find that their funds will be depleted”,

pertains to the assets of all persons.  Yet the plain reason that we are not concerned for this is because the obligation of Tzedakah is dependent on the wherewithal of the giver, as Rambam in Hilchot Matnot Aniyim (7:5) states:

“When the giver does not have the financial capacity, he should give him (the poor person) according to his financial capacity. How much? The most desirable way of performing the Mitzvah is to give one fifth of one's financial resources. Giving one tenth is an ordinary measure etc.”

If so, the same should be regarding orphans. Therefore, why do they not dispense Tzedakah on their behalf, according to their financial capacity - one tenth or one fifth of their assets?

(Even according to the ruling of Rama that:

“Specifically a type of Tzedakah that has no limit (they do not dispense)   . . However. .  a type of Tzedakah that has a limit, for example one who has close relatives that are poor and who had a fixed annuity from their father every year, etc., they (the orphans) give the fixed annuity from their property to their relatives".

However, this still does not answer the above question. why do we not dispense Tzedakah on behalf of the orphans (at all), not even at least until a tenth or fifth of their assets?

Especially, since according to many codifiers, since Tzedakah is something "that has no limit", therefore we do not dispense Tzedakah on their behalf, even when there is a limit. Seemingly, this is the view of Rambam who writes plainly, "we do not dispense Tzedakah on their behalf”, which from his plain wording implies that one never dispenses Tzedakah on their behalf).

2. This question is seemingly the question of the commentators regarding the meaning of the words of the Talmud: “Tzedakah is something that has no limit”:

For indeed it has a limit– a tenth or a fifth.

(as it states in the Talmud Yerushalmi that although we learn that “Gemilut Chassadim (the Performance of Loving-Kindness) is one of the things "that has no limit" (שיעור), this is only regarding Gemilut Chassadim “with one’s body. However, with one’s money there is a limit”).

However, they answer this in many ways, among them:

  1. The intent of the Talmud is that we do for the orphans, "everything whose time is fixed and the obligation of the body", as opposed to a Tzedakah which is a thing "whose time is not fixed and is not solely the obligation of the body but rather is according to G-d’s blessing who gives to him etc. and he has the ability to increase etc.".

Moreover, “since it is possible for the orphans to fulfill it, when they grow up and they can then complete what was fitting of being given from their assets when they were small . . it is better that the guardians do not give on their behalf, but rather that they (the orphans) themselves give, when they mature”.

However, it is difficult to explain so - in Rambam - who does not mention, at all, the condition of "a fixed time and the obligation of the body", and simply writes that the reason that we do not dispense Tzedakah on their behalf is "because these Mitzvot ​​(Tzedakah and redemption of captives) have no limit".

  1. Although Tzedakah has an upper limit, it does not have a lower limit, and the matter is given to the person to increase or decrease according to his wish and desire. For this reason, we do not dispense Tzedakah on behalf of the orphans, because we do not have the ability to estimate the orphans' mindset regarding how much they intend to give, whether much or little.

Even this answer is not settled, in the simple wording of the Talmud (and Rambam), which implies that there is no upper limit. Like Rashi’s words, "they will find that their assets are depleted".

Seemingly, one could explain the reason that “Tzedakah has no limit”, according to the words of Rambam in the Hilchot Matanot Aniyim, where he writes that:

“It is a positive commandment to give Tzedakah to the poor among the Jewish people, according to what is appropriate for the poor person if this is within the financial capacity of the donor”.

Only after many Halachot after this, does he write:

“When a poor person comes and asks for his needs to be met and the giver does not have the financial capacity, he should give him according to his financial capacity. How much? The most desirable way of performing the Mitzvah is to give one fifth of one's financial resources etc.”

The commentators write that from Rambam’s words, it is understood that there are two types of Tzedakah:

  1. Tzedakah that has a limit, i.e. a tenth and a fifth, and this pertains to one who does not have the financial capacity to completely fulfill the needs of the poor person.
  2. A very wealthy person, who indeed “has the financial capacity”. In this case he is obligated “to give to the poor person sufficiently for his needs, and there is no other limit, except for the poor person’s needs”.

According to this, one could say that this is the intent of the Talmud, regarding, “Tzedakah is a thing that has no limit”. For, in essence, the obligation of Tzedakah does not have a limit (it is just that if one does not have the financial capacity - then there is a limit).

According to this, Rashi’s words,

“Tzedakah has no limit, for at each moment there are poor persons. Thus, we find that their funds will be depleted”,

are plainly understood.

(and therefore, we do not dispense Tzedakah on behalf of the orphans).

However, the above question is still not answered (Par. 1) – Why are orphans different from other people?

For on both sides it is not understood (דממה נפשך):

  • If they do not have financial capacity (and there is a concern that their assets will be depleted), then even those who are obligated are not required to give more than a fifth. (On the contrary, there is a prohibition in the matter).

Therefore, why do they not dispense Tzedakah on behalf of the orphans according to the rate of a tenth or a fifth?

  • And if they have the financial capacity to give generously (in a way that there is no concern that their assets will be depleted), why do they not dispense Tzedakah on their behalf?
  • And if there is a way that they are obligated in Tzedakah, even in a manner that their assets will be depleted,

(Which according to many codifiers, is the case if there are poor people ravished by hunger in front of him, where there is concern that they may die of hunger. Then, one must give them everything in his hand and not leave anything for himself, except for his barest necessity) –

why indeed do they not dispense Tzedakah, in this situation, on behalf of the orphans?

3. One must also examine Rambam’s wording in the following Halacha where he writes:

“When a person loses his intellectual faculties or becomes a deaf-mute (מי שנשתטה או שנתחרש), the court dispenses Tzedakah on his behalf (against his property) if he has the means. "

This is not understood:

What is the difference between an orphan, versus a deaf-mute or mentally incompetent person? Even a deaf-mute or mentally incompetent person are not obligated (בני חיובא). Therefore, why do we dispense Tzedakah that has no limit, and why are we not concerned that their assets will be depleted?

The Kesef Mishneh explains the reason why we dispense Tzedakah on their behalf:

“For ostensibly, every person would like to give Tzedakah from his money”.

However, he does not explain why we are not concerned that their assets will be depleted.

On the other hand - why do we not say so regarding orphans - that they would like to give Tzedakah from their money? On the contrary, if we say so regarding a deaf-mute and mentally incompetent person - who are not able, at all, to fulfill the Mitzvah, then how much more so should one dispense Tzedakah on behalf of orphans, who are obligated in education/Chinuch (חינוך)?

4. One could say that the reason that we do not dispense Tzedakah on behalf of orphans, even in a set manner (a tenth or fifth) can be understood according to Rambam's emphasis here (regarding the Mitzvot that the guardians do for orphans) -

"although they are obligated in these Mitzvot only as part of their education".

Namely, that the entire purpose of these obligations of the guardians, only arises due to the reason of education. The same is regarding the aspect of Tzedakah. The supposition, to dispense Tzedakah on their behalf is only because of the reason of education.

According to this, it appears that this is the reason for Rambam’s writing (immediately in continuation to this):

"We do not, however, dispense Tzedakah on their behalf . . For these Mitzvot have no limit to them”.

For due to the ways of Chinuch, it is impossible to obligate children - in education - in something where the need has no limit.

(Perhaps one can ascribe (להעמיס) this to Rashi’s wording:

“Tzedakah has no limit, for at each moment there are poor persons. Thus, we find that their funds will be depleted”,

For one could say, that Rashi’s intent is not that this is the reason why we do not dispense Tzedakah on behalf of the orphans – because we are concerned that through this, their assets will be depleted (and lost). For certainly it is possible to dispense for them something, that has a limit, in a manner that there will be no concern of "their assets being depleted", as above.

Rather, his intent is to explain why the Mitzvah of Tzedakah is in the realm of a thing that has no limit. On this, he writes:

“for at each moment there are poor persons. (And if they will give to every poor person) they will find that their funds are depleted”

In other words, the need for Tzedakah "has no limit" (but not that we are obligated to give Tzedakah without limit). The reason that we do not dispense something that has no limit, on behalf of orphans, is because of education, as will be explained).

To preface:

We find that the aspect of education depends on the "intellectual acumen and his (the child’s) knowledge of each matter according to its substance”. From this it is understood, that a major aspect in education is that there is no place to educate a child in something that he cannot absorb with his intellect and understanding - so much so, that he is confounded etc. In such an aspect as this, it is better to refrain from teaching the child,

(as long as he is not obligated in the matter, and it is solely in the scope of Chinuch).

We rely that his education in the observance of the Torah and Mitzvot in general, will suffice, that when he reaches the age of obligation, he will also observe this thing.

The same is in our case - "we do not dispense Tzedakah on their behalf":

Since the need for these commandments has no limit, and it is just that in order that one does not lose all his money, they set a limit for Tzedakah - a tenth or fifth (and no more) - it is very difficult for this matter to be comprehended in a child’s mind -

Namely, that when there is a needy poor man, and a tenth or fifth of his property is not sufficient to supply all his needs, we forbid him to despoil more than a fifth (and leave poor person in straits, or regarding the redemption of captives – that he will remain in captivity)!

Therefore, they said that we do not dispense Tzedakah on their behalf, so that there will be no matter of confusion, etc. in their general education.

According to this, the difference between small orphans for whom we do not dispense Tzedakah on behalf of, versus “a person who is mentally incompetent or is deaf-mute” (where) Beit Din dispenses Tzedakah on his behalf" - is answered simply. Since they do not have the aforesaid concern regarding the aspect of education, we therefore dispense Tzedakah on their behalf, as explained above, by the Kesef Mishneh: "For ostensibly every person would like to give Tzedakah from their finances".

One could say that for this reason Rambam brought this law of distributing Tzedakah on behalf of one who is mentally incompetent or a deaf-mute – here - even though it seemingly has no place in Hilchot Nachalot (in the laws of inheritance), and it should have been brought in Hilchot Matanot Aniyim, and so forth?

Rather this comes to teach us the reason why we do not dispense Tzedakah on behalf of orphans. For it is not because they are not obligated, or that we are concerned that their assets will be depleted, but rather it is because there is no aspect of education, in this, as aforementioned.

{*} {*} {*}

5. In continuation to these two Halachot regarding distributing Tzedakah on behalf of orphans; and the deaf-mute and mentally incompetent persons, Rambam (in the last Halacha of Hilchot Nachalot) writes:

“Although a guardian does not have to make an accounting, as mentioned above, he must keep a personal account, being extremely precise, so as not to incur the wrath of the Father of these orphans, He who rides upon the heavens, as Psalms 68:5-6 states: "Make a path for He who rides upon the heavens . . the Father of orphans."

In simplicity, the reason that Rambam arranged this Halacha here,

(even though the law regarding making an account was written before this, in the middle of the chapter),

is to conclude Hilchot Nachalot, which is also the conclusion of Sefer Mishpatim, with an aspect of morality (מוסר) etc.

(like the style of Rambam at the conclusion of all fourteen books of Yad HaChazakah).

However, according to the known tremendous precision in Sefer HaRambam, it is probable to say, that there is a continuation here also with the adjacent laws regarding the Mitzvot that the guardian does on behalf of the orphans.

One could say regarding this:

From the aforementioned law regarding the commandments that a guardian does on behalf of the orphans, it is understood that the appointment of the guardian is not only an appointment regarding the orphans' assets, which he must endeavor for, in their favor, in everything related to their finances. However, he must also deal with everything that pertains to them - to the point of educating them in Mitzvot. For he stands in place of the father.

This is why Rambam writes in continuation to this, that one must:

“be extremely precise and very careful not to incur the wrath of the Father of these orphans”.

For after he explains the magnitude of the guardian's obligation to the orphans, that he stands in their father's place, so much as to educate them in Mitzvot – Rambam adds that he must:

“be extremely precise and very careful not to incur the wrath of the Father of these orphans, He who rides upon the heavens”.

In other words, this must influence him also with regard to his dealings with their education.

6. According to this, one can explain, according to homily and allusion, the reason for Rambam’s emphasis that G-d “rides upon the heavens“. For seemingly, he should have said, “this is G-d“, and so forth. Or just to cite the verse:

(“the Father of these orphans”) as it states: "Make a path for He who rides upon the heavens . . the Father of orphans etc.”

According to Pshat, one could say according to the words of the Talmud (Chag.12b - in the section discussing the seven firmaments):

“Aravot/heavens, is the firmament that contains righteousness and justice”.

Therefore,

“he must keep a personal account, being extremely precise, so as not to incur the wrath of the Father of these orphans, He who rides upon the heavens”,

For that is the source of righteousness and justice.

However, according to allusion, one could add according to what is written in the Talmud there, that “Aravot/heavens” there refers to,

“the dew that the Holy One, Blessed be He, will use to revive the dead”.

This also includes the (actual) father of the orphans.  If so, this increases the carefulness in fulfillment of the Mitzvah of Chinuch,

(which in its source, is placed plainly on the father of the orphans, yet now is placed on the guardian).

 in the knowledge that G-d "who rides upon the heavens" will revive their actual father, in the Future etc.

One could say that the reason Rambam also cites the beginning of the verse, the words:

"Make a path (for He who rides upon the heavens)" –

is because even this is related to the role of a guardian:

The Tzemach Tzedek explains that the words, "Make a path (for He who rides upon the heavens)" means:

"To make for Him a highway (מסלה), as it were, so that He can descend to be revealed below. . similar to what it states: “Pave, pave, clear the way . . And there shall be a highway for the remnant of His people”.

This is connected with the role of the guardian to educate the orphans. For through education in the way of the Torah and Mitzvot, they make "highways in their hearts" in everything related to conduct according to Torah. It is in a manner that the conduct, according to Torah, becomes in them, a paved way for the duration of all their lives, as it states,

"Train a child according to his way; even when he grows old, he will not turn away from it.”

M’Sichas Shabbat Parshat Mishpatim 5746

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