Life and Death Issues and Money: Rav Elyashiv zt”l vs. The Chofetz Chaim

By Rabbi Yair Hoffman for 5tjt.com

A very wealthy person is approached regarding a life and death issue.  The amount requested is vast, indeed.  Must the wealthy individual give?  Or may he refrain?

Some forty years ago, I was asked to translate for a well-respected Rosh Kollel from an illustrious Torah family. The Avreichim in the Kollel did amazing Kiruv work for half a day and learned half a day.  The conversation went something like this:

RK: Shalom uvracha.  I need a fairly large check from you for the Kollel.

Gvir:  I give tzedakah generously.  I apportion it out throughout the year to 20% of my yearly income.  I had asked a shailah as to how I should prioritize and how I should go about it.  I end the maaser year on erev Rosh Hashana, and on that day, I apportion out whatever is left over from my 20%.  I choose from the tzedakos that I have encountered throughout the year and from the past.  I am not allowed to give more.

RK:  Yes, but my particular mossad is true pikuach nefesh.  So, it does not fit into the aforementioned rule of 20%.

Gvir: Really?

RK: Yes, I am afraid so.

Gvir: So, according to what you are saying – how much must I give?

RK:  You should leave yourself enough that you are still comfortable and not indigent.

Gvir: Are you saying that I have to give you all of it?

RK:  Yes, I am – at least.

Gvir: So you are saying there is no 20% limit for your case?

RK:  Yes, that’s right.

Gvir:  Assuming that you are correct – and you do have the upper hand because you are a learned Talmid chochom – but what about other people who also have pikuach nefesh mosdos and will come later?  And maybe their percentages of success are better than yours?

RK:  My Pikuach Nefesh case is right here now standing before you.  It takes precedence.

Gvir:  I understand what you are telling me.  However, I am sure that some of the cases that came before you came to me are also Pikuach Nefesh cases too.  And my understanding is that there is a concept of precedence.  So, I will give you my check for X amount now.. and I will put you on the list and will check with my Rav about the more than 20 percent point that you mentioned.

RK: Yes, but I am afraid I must insist because this is pikuach nefesh.  You can call your Rav now if you like.

Gvir:  I will call my Rav this evening when he is available for me.  In the meantime, I can mail you the check should I do that?

RK: No, I will take it now.

Gvir:  Okay.  I will take your number if my Rav feels that I should give you all of my money.  Thank you for the information.

ANALYSIS: 

We will analyze, for now, just one aspect of this conversation – the prohibition of giving more than 20% and its exceptions.

The Ramah in Yore Deah 249:1 writes that one may not give more than 20 percent and it is an enactment that was made in Usha – after the persecutions of the evil Roman emperor Hadrian in 135 CE.  The Sanhedrin that formerly met in Yavneh moved to Usha (2/3rds of the way from Tveria to Haifa if you draw a straight line west).

The implication of this Ramah, and the way most Poskim understand this Ramah is that there is a true, across the board 20% limit.

THREE UNDERSTANDINGS OF THE RAMAH

• The Chasam Sofer in a responsum (YD  229) writes that prior to the Takana made by the Sanhedrin in Usha – by Torah law – he would have had to give the entirety of the money but that the enactment at Usha limited the Biblical obligation to 20%.
• The Maharam Shick (YD 230) understands it in a slightly different manner.  He writes that the Biblical obligation was always a maximum of 20%.  It was forgotten, however, and at Usha the original Biblical parameters were restored.  As a proof, he cites a Yerushalmi in the first chapter of Pe’ah.
• The Chochmas Odom (144:10) understands it in a very different manner. He writes that a very very wealthy individual (an ashir muflag) may give more than 20% of his income.

The Chofetz Chaim, in his Ahavas Chessed (2:2) gives a few illustrations that seem to back up our Rosh Kollel’s view.  He writes that if genuine poor people are standing in front of him that need to be fed and clothed – he should go over the twenty percent. One can likely infer from the exact wording of the Chofetz Chaim that the poor people need to be before him right now – and that it would not be sufficient to have a Gabbai serve in their place to create this obligation.

The Gemorah in Bava Metziah 62b that states “Your life comes before the life of your friend” does not mention that “your money as well comes before the life of your friend.”

The Maharsham (responsum Vol. V #54), however, writes that if it could lead to poverty there is no obligation.  He cites a Raavad (cited in the Beis Yoseph in OC 656) that a poor person is likened to a dead person – and, therefore, falls under “Your life comes before that of the life of your friend.”

Rav Yitzchok Zilberstein shlita cites (Assia #55, Taives 5755 p. 46) his father-in-law, Rav Elyashiv zt”l, that the obligation to save a life is derived from hashavas aveidah – returning a lost item, and there is no vinancial obligation there – beyond regular tzedakah.  Rav Elyashiv’s position is the same as the Maharsham.

As in all matters of halacha, one should of course always consult with one’s own Rav or Posaik.

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