The Weekly Mitzva
Yeshivat Har Etzion
By Rav Binyamin Tabory
We are obligated to be more meticulous about the mitzva of tzedaka than any other mitzvat aseh since tzedaka is the identifying characteristic of the descendents of our father Avraham. (Rambam, Hilkhot Matnot Aniyim 10:1)
The Torah told us that there will always be needy people, and we are required to supply them with their needs. In fact, the Torah forbade us to "harden our hearts or close our hands;" rather, we must give tzedaka (Devarim 15:7-11).
The Rambam, therefore, enumerated two separate mitzvot. There is a mitzvat aseh (Sefer Ha-mitzvot 195) to give tzedaka and there is a mitzvat lo ta'aseh (ibid. 232) not to withhold tzedaka. Although the Rambam combined the concepts of "hardening our hearts" and "closing our hands" as one commandment, the Bahag and others counted them as two separate mitzvot lo ta'aseh.
The Gemara (Bava Batra 8b) tells us that Rava coerced Rav Natan to give tzedaka. Tosafot (ad loc.) asks how could he force someone to fulfill this mitzva? There is a general principle that beit din does not force someone to fulfill a mitzva whose reward is directly mentioned in the Torah. Since the Torah said (Devarim 15:10) that there is a special blessing bestowed upon the person who gives tzedaka, it follows that there should not be any coercion to fulfill this mitzva.
Rabbeinu Tam answered that Rava did not actually coerce Rav Natan; he merely persuaded him to fulfill this obligation. He also suggested that there may have been a communal commitment to give tzedaka, and the community accepted upon itself that they may be coerced to give tzedaka. A third answer, proposed by the Ri, is that you do not coerce someone to fulfill a mitzva aseh whose reward is specified. However, in the case of tzedaka, there is also a lo ta'aseh (or perhaps even two separate prohibitions) to refrain from giving tzedaka, and you may always coerce someone to avoid transgressing a lo ta'aseh. The Ritva answered the question by saying that beit din may coerce someone to fulfill any mitzvat aseh. The rule only means that beit din is not REQUIRED to force people to fulfill mitzvoth whose rewards are specifically noted. However, they may certainly do so if they wish.
Many other answers have been suggested by Rishonim and Acharonim. The Ritva (Ketuvot 49b) said that we may coerce people to give tzedaka since the poor are in dire need. Rav Moshe Goldstein said that this may be in keeping with the opinion of the Ritva that beit din may always coerce people to fulfill any mitzva, but are not required to use force in a mitzva which has a reward attached to it. However, whenever there is a special need, as in the case of the poor, beit din should coerce people to fulfill their obligations. It would follow that in the case of honoring one's parents (which is also a mitzva which has a reward mentioned specifically), the Ritva would think that beit din should coerce a recalcitrant child when the parents are in dire need (editor's note to the Mossad HaRav Kook edition of the Ritva).
The Ritva added that we have a specific commandment to force people to give tzedaka. The gemara (Rosh Hashana 6a), referring to the phrase, "You shall keep your statements and do [them]" (Devarim 23:24), says specifically that beit din is required to employ force in connection with tzedaka. Although the Torah was relating to a case where the person had taken a vow to give tzedaka, the Ritva said that this teaches us that coercion may be used in general for tzedaka since the indigent are in dire straits.
The Radvaz (Hilkhot Matnot Aniyim 7:10) and the Ketzot Ha-choshen (39:1) raised the possibility that there is an actual monetary obligation to support poor people, and not only a religious mitzva. Therefore, we may force people to give tzedaka, just as we may force people to pay their debts.
There are many obvious differences between the various opinions. For instance, if it is a local minhag that the community accepted, it would only apply in those specific communities. If a beggar came from another city, beit din may not be allowed to coerce people. The level of coercion employed may only refer to gentle persuasion according to Rabbeinu Tam, but we would not be allowed to take money by force.
The Rambam ruled (Hilkhot Matnot Aniyim 7:10) that if someone does not want to give tzedaka, or does not give an amount commensurate to his wealth, beit din should coerce him even by physical force. They may also take his property from him while he is present and give it to the needy. The Bach (Tur Choshen Mishpat 248) interpreted the Rambam to mean that we may force someone even if he is present, and we need not wait for him to do it himself. If he were not present, we could certainly take his property and give tzedaka. The logic of this explanation is that we could raise the question whether a person fulfills the mitzva of charity if his money is taken by force. (See Shulchan Arukh Yoreh Deah 249:2; Taz and Gra ad loc.) Therefore, we might have thought that we should not forcibly take his property if he is present and could give it himself. However, if he is not present, the Bach feels that you may certainly take his possessions to fulfill his obligation of tzedaka.
The Beit Meir (Shulchan Arukh Even Haezer 71) disagrees with the Bach, and interprets the Rambam in the opposite manner. We may ONLY take someone's property for tzedaka if the owner is present. (The Arukh Ha-shulchan Yoreh Deah 248:5 cites various opinions regarding this issue.)
This dispute probably revolves around the question why beit din coerces one to give tzedaka. If it is based upon general coercion of mitzvot, it would seem likely that this could be done only in the presence of the obliged donor. However, if we would learn like the Ketzot, that there is an actual monetary obligation, we could obviously collect it even if the owner were not present.
The Rambam explained that there is a great mitzva to accompany travelers. He wrote (Hilkhot Eivel 14:3) that beit din may coerce people to accompany guests just as we coerce people to give tzedaka. The comparison seems to indicate that the concept of coercion is due to the nature of the mitzva, and not due to a financial obligation. This seems to support the opinion of the Beit Meir, as opposed to the Bach.
The gemara (Bava Batra 9a) says that someone who is instrumental in getting another to give tzedaka is actually greater than the person who gave it. The Rambam (Hilkhot Matnot Aniyim 10:7) seems to cite the gemara, but changes the language and style somewhat. He wrote, "He who coerces other to give tzedaka and cause them to do so, has a greater reward than the actual donor."