Shiur 05: The Responsibilities of the Recipient of Charity (Part 2)

  • Harav Aharon Lichtenstein

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[We here present the second part of HaRav Lichtenstein's article: The Responsibilities of the Recipient of Charity, click here for part 1]

 

     According to the aforementioned understanding, there is indeed an obligation to help the needy who do not do their part to help themselves to the best of their ability. But the fact that this duty is based on only one of the sources of obligation of gemilut chasadim dulls its force. While on the one hand, as we have seen, the obligation to imitate God has wider application than the obligation to love one's neighbor, on the other hand, its validity is less clear and obliging. With respect to the nature of the mitzva and its obligation, the love of one's neighbor, as it is applied on the practical level – over and beyond the fulfillment in the heart that it requires – is similar to other mitzvot. In specified circumstances, the actions that are demanded by this duty are as obligatory as wearing tzitzit and constructing a railing on one's roof, as blowing a shofar and donning tefilin. There is no escaping its demands, and it may not be pushed aside because of other spiritual demands, barring cases in which any mitzva would be pushed aside (because of the rule that one who is already engaged in a mitzva is exempt from performing other mitzvot, or the like). For example, one may not neglect gemilut chasadim that is connected to the love of one's fellow only in order to study Torah, just as one may not neglect the mitzva of lulav for that reason. Moreover, it is possible that such actions are not merely means to achieve an emotional relationship, or even the external expression that reflects that relationship, but rather the practical dimension of the mitzva. For this reason, the mitzva also divides, if only by rabbinic decree, into various branches, each one being defined as a mitzva in its own right, to the point that the Rambam discusses the priority given to each one:

 

It seems to me that the duty of comforting mourners takes precedence over the duty of visiting the sick, because comforting mourners is an act of benevolence toward the living and the dead.[26]

 

As I heard on various occasions from my revered teacher, HaGaon Rabbi Joseph B. Soloveitchik, ztz"l, such a discussion is only possible if we assume that by rabbinic law, the comfort of mourners, the visiting of the sick, and similar obligations each become separate entities and categories. Otherwise, it would be necessary to adopt a contextual approach that would judge each case according to its specific circumstances. But it seems to me that it is reasonable to add that the basis for this development is the Torah level of the mitzva that regards gemilut chasadim and its specific actions as an act of loving one's fellow and a fulfillment of that mitzva.

 

     The nature of benevolence that is based on walking in God's ways is entirely different. This mitzva, in all its aspects and with all its offshoots, outlines a direction and a goal, but it lacks absolute and specific content. The moral action that it demands is part of an overall spiritual effort. Thus, it competes for a person's attention and the allocation of his resources with parallel efforts – expanding Torah study or deepening the fear of heaven, for example; and circumstances are possible in which a person's priorities will demand that preference be given to other objectives at the cost of gemilut chasadim. In this framework, the focus is upon the personality of the benefactor that is fashioned and expressed through his actions, and not the needs of the recipient. To the extent that his spiritual personality can develop more in other ways, the needs of the other person - inasmuch as they are just a means and not the objective - are liable to be set aside. Therefore, basing a specific act of chesed exclusively on walking in God's ways narrows the dimensions of the obligation.[27]

 

     To this limitation, which is connected to the circumstances of the benefactor, we can add a second limitation that is connected to the situation of the recipient and his capability of rehabilitating himself. It seems to me that it is possible to distinguish between two levels of capability. In one, a person is in distress – there being no halakhic doubt about this fact – but he is capable, through intensive efforts, to contribute to the solution of his problems, and perhaps even to rehabilitate himself. Regarding such a person, there is room to discuss, at the very most, whether or not his refusal to exert himself as required exempts others from doing for him what he is not prepared to do for himself. Beyond a certain point, however – and I openly admit that practically speaking I don't know where to draw the line – rescuing the needy person is so easily achievable that his situation cannot be called one of distress. When his own salvation could come clean and easy, but for some reason he refuses to help himself, it is difficult to view him as in need. In such a case, the allowance to ignore his problems is not an exemption that stems from his refusal, but an absence of obligation that is rooted in the fact that he simply is not included in the parameters of the mitzva. With regard to the mitzvot of perika and te'ina or gemilut chesed, he is like a rich man with regard to the mitzva of tzedaka. A doubt may even be raised whether one who goes out and helps a "needy" person of this sort fulfills these mitzvot. Regarding the obligation, in any event, it is certainly possible to distinguish between these two levels. Regarding the one, the other person is fundamentally obligated to extend assistance, though there might be some practical limitations. Regarding the second, he is entirely out of the picture.

 

     This point brings us to the practical complications of our problem. Reaching a fundamental decision and establishing operative guidelines are two different things. The conclusion that there is room to include relief extended to the negligent in the mitzva of gemilut chasadim does not mean that it should be extended – or extended in the same measure in every case.

 

     Before concluding, we must survey the main factors that must be considered when performing such chesed. One, that has already been mentioned, is the needy person's ability to help himself. Even in cases where the indigent person is certainly regarded as being in need – for example, where a person can do a lot to alleviate his distress, but cannot remove it altogether on his own[28] - it is clear that the needy person's ability to help himself must impact upon the obligation to help him. The more possible the mission, the more restricted the obligation – both because the recipient is less needy and because his responsibility, in the double sense of burden and guilt, is greater. It is, of course, impossible to establish precise criteria for this point. Regarding loading and unloading, and the owner stands on the side, the Mishna states: "If he is old or sick, he is obligated."[29] But it does not clarify the level of old age or illness, and certainly there is room here for different approaches. I myself am inclined to a liberal definition, but clearly there is no absolute answer; and the same applies with respect to our general question regarding gemilut chasadim. If we are talking about finding a job – and that is the primary practical point in our day – there is yet another vague factor: dependency on others. As opposed to the cases of loading and unloading, here efforts in and of themselves are no guarantee of success. Thus, it is possible to apply the words of the author of the Me'il Tzedaka:

 

Children, life and sustenance do not depend on merit, for it is written: 'And I will be gracious to whom I will be gracious' (Shemot 33:19) – although he may not deserve it. We learn from here that whoever sends out his hand to take, we give him. And there is no proof that if he is healthy, he is fit to work, for his fate does not help him earn a profit, even if he works all day long."[30]

 

Nevertheless, there is room to distinguish between one who is looking for a job, but fails to find one, and one who sits back doing nothing, if we just adopt the principle – as apparently the Me'il Tzedaka did - that a person's refusal to take advantage of his own abilities lessens the obligation falling upon others to act charitably towards him.

 

     On this level, one point requires special emphasis. It may be assumed that the illness mentioned in the Mishna – parallel to old age – is a physical illness, the definition of which is relatively simple. The serious difficulty arises with respect to emotional illnesses or hindrances, both because their scientific definition is less precise and because they are subject to sharp ideological controversy. Psychological disability – fear of responsibility, difficulty in adapting oneself to a steady routine, distaste for authority, dependency on the home – can eat away at the ability to work no less than a lame foot. Without a doubt, however, it is less recognized in both senses of the word. The degree of recognition depends in no small measure on the idea of free will. This is why a person who is guided by Halakha will be inclined to adopt an ambivalent attitude towards the struggle over welfare budgets across the western world today, between conservative politicians who are "stingy" and social workers who are "generous." On the one hand, the exaggeration of the value of chesed and of society's responsibility toward the needy brings him to support the expansion of aid. But on the other hand, the more that this demand is based on the argument that aid must be expanded because psycho-social circumstances fetter the needy and prevent them from joining the work force, it clashes with the emphasis that Judaism places upon free will. Halakha indeed recognizes psychological causality, and Chazal even saw such circumstances as a factor that mitigates or even altogether removes responsibility and guilt.  Regarding circumstances of suffering we find:

 

Rav Sheshet said in the name of Rabbi Elazar ben Azaryah: I could justify the exemption from judgment of the [Israelite] world since the day of the destruction of the Temple until the present time, for it is said in Scripture: "Therefore, hear now this, you afflicted and drunken but not of wine" (Yeshayahu 51:1)[31]

 

With regard circumstances of seduction the gemara states:

 

What is "And Di Zahav" (Devarim 1:1)? They said in the school of Rabbi Yannai: Thus spoke Moshe before the Holy One, blessed be He: Master of the Universe, the silver and gold (zahav) which you showered on Israel until they said, Enough (dai), that was what led to their making the calf… Rav Chiyya bar Abba said in the name of Rabbi Yochanan: It is like the case of a man who had a son; he bathed him and anointed him and gave him plenty to eat and drink and hung a purse around his neck and set him down at the door of a brothel. How could the boy help sinning?[32]

 

Generally, however, the heavy emphasis that Halakha places on man's freedom and ability and the fundamental trust that it puts in him stand in absolute opposition to the psychological determinism that is prevalent in wide circles of those who support an "enlightened and liberal" welfare policy. Trusting man and emphasizing his responsibility means believing that he is capable of transformation, if he so desires. Shifting the focus from ability to will narrows the definition of "an old or sick man," and it is also liable to diminish the feelings of obligation and sympathy toward the needy:

 

Rabbi Elazar said: Any person who has no knowledge – it is forbidden to have mercy upon him, as it is stated:  "For it is a people of no understanding; therefore its Maker will have no mercy on them, and its Creator will show them no favor."[33]

 

From a certain perspective, however, it is possible to respond in the manner that Rav Chen reported in the name of his father: "How much mercy on one whom one is forbidden to show mercy."[34] But with all the sympathy over his lack of understanding, the fact that a person is regarded as one with unused abilities certainly tends to diminish the performance of gemilut chasadim on his behalf.

 

     This point borders on a second important factor: the needy person's motives. A lazy person who sneers at society and expects it to support him can certainly not be compared to a refined person who prefers to remain within the confines of gentility to skinning carcasses in the market; and between these two extremes there is a broad spectrum. According to the determinist view, this point is significant only with respect to the treatment: help offered to the "lazy" should be restricted or cancelled because it is liable to encourage an anti-social attitude or undermine his ability to function. From a Jewish perspective, it is replete with clear moral content, and as such, it has great weight on the operational plain. In certain situations, the needy person's spiritual benefit, irrespective of the benefactor's limitations, demands a cessation of chesed that is liable to produce corruption; and this should be given priority. However, it falls upon the benefactor or the welfare agency to ascertain, honestly and sincerely, that this consideration, and not the natural inclination to scrimp, is the driving force behind this withholding of assistance. But if indeed the move is dictated not by budgetary considerations but rather by conscience, the denial of aid might be absolutely justified.

 

     The third factor is the need of the recipient. The graver his situation – and most importantly, the more dangerous it is – the more difficult it becomes to withhold aid, even when it seems appropriate from other perspectives. In the extreme case, where the person in need is in mortal danger, it would be unthinkable to allow him to deteriorate because he is responsible for his troubles. This follows by way of a kal va-chomer argument. If in the case of a person who wishes to commit suicide, we are obligated to frustrate his design and save him – and this seems to be obvious[35] – then surely in the case of a person who endangers himself in indirect ways, where his "guilt" is less clear, all the more so must we come to his rescue. Without a doubt, even Rabbi Shimon, who maintains that if a person has resources of his own but does not wish to support himself from them, we are not bound to help him, will concede that we may not ignore a person who mortifies himself to the point that his life is placed in jeopardy. The Maharam of Rotenburg has already written:

 

I was asked about a teacher who had entrusted a deposit in the hands of his landlord, and he was arrested on false charges, and he instructed his landlord not to ransom him; and I wrote that he must ransom him against his will… Even if he says, "I do not want you to ransom me," we ransom him with his money against his will… For we learn from a verse that one who sees his fellow drowning in a river is obligated to save him and exert himself and hire rescuers, and it is obvious that even if he commands, "Do not save me," he must save him and later he can collect his expenses from him.[36]

 

The severity of the situation – and Chazal[37] viewed the dangers of captivity as exceedingly great – magnifies the obligation to rescue, the responsibility of the person in danger be as it may. While the Maharam concludes that expenses may be collected from the ransomed captive, this process is different from the position of Rabbi Shimon which was codified as law regarding financial support. This is only because of the difference in needs.

 

     This point is reflected in the words of the Meiri cited earlier. As may be remembered, one of the distinctions that he offered between the talmudic passage in Kiddushin, which implies that the obligation of rescue falls entirely on the rescuer, and the Mishna in Bava Metzia, from which he infers that it falls also on the rescued party, was the difference between saving a life and saving property. The Meiri does not explain, but it seems to me that at the root of the matter is the assumption that regarding bodily danger there is an absolute obligation which leaves no room for any kind of reckoning. Even the lazy and those who take advantage of others have a right to life. As for property, it is possible to demand, at the very least, the needy person's participation – whether in order not to place too heavy a burden on the benefactor, or in order not to detract from others in need, or in order to teach him a lesson. But as for life, the obligation to rescue stands above all other considerations.[38] From this type of danger, while rather extreme, we may infer, in the framework of our discussion, the law governing other situations. The principle underlying the words of the Meiri is valid regarding assistance in general: the obligation to assist the "lazy" is a function of the danger threatening them.

 

     In the end, of course, these factors, each one independently or taken all together, cannot be translated into precise solutions for the problem of assistance to those who are negligent about helping themselves. While they outline a direction and propose guidelines, the need to deal on both a moral and a practical level with the particular aspects of each individual case and every public framework, remains in place. This is rooted in both the complex social reality and the outlook of Halakha. The effort to encourage sensitivity on the one hand, and responsibility on the other, to nurture both a work ethic and an ethic of giving, to hold onto both tzedek (justice) and tzedaka (charity), reflects its values. It is in this complex of values that our problem lies, and within it are also found the foundations of its solution. One must, however, strive to reach it, and for the proper motives.

 

(Translated by David Strauss)

 


* This article originally appeared in Hebrew in Sefer Ha-Zikkaron Le-Avraham Spiegelman (Jerusalem, 1979).

[26] Hilkhot Eivel 14:7.

[27] In light of what has been said here, there is room to discuss whether one who engages in such chesed is exempt from performing other mitzvot. Regarding chesed based on the love of one's fellow, there is no doubt that the principle that one who is occupied in a mitzva is exempt from other mitzvot is valid, and there is no difference between it and the mitzva of tzedaka. Whether there exists a communal obligation of chesed based exclusively on the obligation to imitate God must also be examined, for it is possible that this obligation applies only to the individual, but does not fall on the community. This, however, is not the forum to discuss these issues at length.

[28] It may be assumed that the Mishna that exempts a person from the obligation of loading and unloading if the person in need does not help out, based on the Scriptural decree "you shall surely unload it with him," relates to a case where the person in need can only help. Were he able to solve the problem entirely on his own, it is possible that even without the verse, the other person would be exempt, for in that case the person being helped would not be defined as being in need.

[29] Bava Metzia 32a.

[30] Rabbi Eliyahu Ha-Kohen of Izmir, Me'il Tzedaka, no. 196. This book, written three hundred years ago, is a treasure store of almost two thousand statements relating to tzedaka and gemilut chasadim.

[31] Eruvin 65a.

[32] Berakhot 32a.

[33] Sanhedrin 92a.

[34] R. Avraham Chen, Be-Malkhut Ha-Yahadut (Jerusalem, 5724), II, p. 426.

[35] The author of the Minchat Chinukh, however, thought otherwise: "It seems that if a person wishes to commit suicide and another person can save him, it is possible that he is not governed by this negative precept. It is unnecessary to say that he is not governed by the positive precept, '"And you shall restore" – to include the loss of his body,' for the positive precept of restoring lost property does not apply to property that was knowingly lost… But he is not even governed by this negative precept" (Kometz Mincha, printed at the end of the Minchat Chinukh, mitzva no 237). He tries to adduce proof for his position from the fact that the Gemara in Sanhedrin 73a does not distinguish between the positive and negative precepts. His position, however, is very astonishing. As for his proof from the Gemara, it seems quite the opposite. Regarding bodily harm, even the positive precept is valid. The exemption regarding intentionally lost property applies to property, whether because of hefker, as argued by the Tur (Choshen Mishphat, 261; and see Rosh, Bava Kama, chap. 2, sec. 16, and Shakh, Choshen Mishpat, 261, no. 3); or because we don't burden others when the owners themselves abandon and waive their property, as argued by the Rambam. Regarding bodily harm, we can certainly not speak of hefker, nor of waiver, for a person has no proprietary rights over his life. Therefore, one who threatens suicide must be saved both because of the mitzva of restoring lost property, and because of the prohibition to stand aside when mischief befalls your neighbor.

[36] Responsa Maharam ben Barukh, ed. Prague, no. 39. The gist of the responsum is cited in his name by the Mordekhai, Bava Kama, sec. 59.

[37] See Bava Batra 8b.

[38] This is more persuasive if we understand that according to the Meiri mortal danger is a sufficient condition to distinguish between the passages in Bava Metzia and Kiddushin. But even if he understands that it is merely a necessary condition (see above, note 14), and even if we accept the position that he cites at the beginning of the passage, that if the woman does not want to return to the rescuer the value of the bread, "he is not obligated to save her," it seems to me that a distinction should be made between a threat to life and a threat to property. Regarding property it is possible that there is no obligation whatsoever, even lekhatchila. Regarding life, one is certainly obligated to save the person – with or without the possibility of recovering expenses – only that according to this opinion, after the rescue, it is possible to recover expenses. The continuation of the words of the Meiri, "for he too is forbidden to save himself with another person's money," prove this. For is it conceivable that a person who is faced with two choices, either to die or to cause a financial loss to his fellow, is obligated to sacrifice his life? Surely, the Tosafot already explained the Gemara's problem (Bava Kama 60b), "What is law about saving oneself by appropriating another's money," as follows: "He asks whether he is obligated to pay when he saved himself because of pikuach nefesh" (ibid. Tosafot, s.v. mahu). The Rambam also understood the problem as a question regarding payment: "One who saves himself by appropriatng another's money must repay it" (Hilkhot Chovel U-Mazik 8:2). It seems to me that there is no other way to understand the Gemara. The Gemara indeed uses the formulation, "a person is forbidden to save himself," but one must not understand that this means that lekhatchila he must refrain from saving himself, for damages and theft are not included among the prohibitions that are not set aside for pikuach nefesh. Rather, "forbidden" here means that his act has ramifications regarding payment. If the act is outright permissible, it means that the Torah permitted the other person's property to the saved party, as if it had pledged it for this purpose and removed the other person's proprietary rights to it. Thus, there is no room for compensation, for the rescued party did not make use of property belonging to another person, but rather Halakha granted him use of the property from the very outset. If, however, a person is forbidden to save himself by appropriating another's property, the other person's proprietary rights remain in place, and the saved party, when he sets aside this "prohibition" for reasons of pikuach nefesh, makes use of money that was not given to him for that purpose, and therefore he is obligated to make compensation. See Meiri, Bava Kama, 114b, who writes that a person is permitted to save himself with another's property having in mind to make restitution, but if he has in mind not to make restitution, he is forbidden to do so. Clearly, he means that lekhatchila he must have in mind to make restitution, but not, if no such possibility exists, that he should die rather than make use of the property. (Rabbi Yaakov Ettlinger understood, however, that according to Rashi, following his understanding of his position in Bava Kama 60b, a person must indeed sacrifice his life in such a situation; see Responsa Binyan Tziyon, no. 167, and Responsa Binyan Tziyon Ha-Chadashot, no. 173. But his words are very astonishing. This, however, is not the forum to discuss his position.) Thus, the earlier line in the Meiri, "he is not obligated to save her," should also be understood to mean that in actual practice he is obligated to save her, but since money-wise he is not obligated, if the rescuer gives a loaf of bread for this purpose, he gives the woman that which belongs to him, and not of what she is entitled by virtue of his obligation to God, and thus, there is a transfer of betrothal money.