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The Rambam (Hilkhot Matnot Aniyim 7:1-2) quotes two sources for the mitzva of tzedaka, one in Vayikra (parashat Behar) and the other in Devarim (parashat Re'ei). In Re'ei (Devarim 15:8) the Torah mentions two negative and one positive mitzva: "When there will be a poor person amongst you brother the poor man," (negative mitzvot). "Rather, you shall surely open your hand to him," (positive mitzva).
In our discussion we will explore two issues:
Perhaps the negative and positive mitzvot of tzedaka do not merely incidentally relate to the same mitzva, but create an interrelated system of mitzvot. There is precedent to suggest that the function of the negative commandments of tzedaka is to strengthen and reinforce the positive one. The Torah ensures that people will give by building on the naturally stronger fear of transgressing a negative commandment.
The model for such a suggestion is the Ramban's resolution of a problem with the gemara on Kiddushin 34a. The gemara says that women are obligated in the mitzva of returning a lost object, sending away the mother bird, and building a fence around the roof of a house (ma'akeh) because they are positive, non-time-bound mitzvot. The Rishonim find this gemara difficult. All of these mitzvot have a negative commandment connected to them; women are obligated in all of the negative mitzvot (except for pei'ot and a kohen not coming in contact with the dead); so they are obviously obligated regardless of their being non-time-bound mitzvot.
The Tosafot's solution is to find special cases where the negative commandment does not apply although the positive does. The gemara teaches that women are obligated in these commandments even where only the positive aspects are applicable. The positive and negative commands relate to different situations
The Ramban has a different solution to the problem that involves an innovative approach to the relation between the positive and negative aspects of a mitzva. According to the Ramban, the main aspect of these three mitzvot is their positive commandment. The goal of the negative commandment is to bolster the positive side of the mitzva. It follows that if women are not obligated in the positive mitzva, they are also not obligated in the negative one which exists only by virtue of the positive mitzva it supports.
This principle has a number of ramifications. One example: in general, if one is involved in one mitzva he does not leave it to perform another ("ha-oseik be-mitzva patur min ha-mitzva"). If one finds a lost object while he is involved in doing another mitzva, does he stop and return the lost object? According to the Tosafot, he would, because despite the principle, there is a specific prohibition of ignoring a lost object. He must stop and return the lost object. According to the Ramban, who believes that the negative commandment is dependent on the positive one, it is likely that the principle would still absolve him from returning the lost object. The principle absolves him not only from the positive commandment, but also from the negative commandment, for it has no independent existence.
The Ramban's suggestion about the relationship between the positive and negative sides of these three mitzvot inspires us to ask whether the same might be true of tzedaka. Are the two negative commandments independent of or are they geared towards strengthening the mitzva of "Open your hand?" [One hesitation - in those three mitzvot the Torah mentions the negative commandment AFTER the positive one, while with tzedaka the order is reversed.]
There might be other Rishonim who adopt a Ramban-type approach to the mitzva of tzedaka. Tosafot (Bava Batra 8b) ask why Rava was able to compel the giving of tzedaka. Tzedaka is a mitzva whose reward is written alongside it in the Torah, and the gemara (Chullin 110b) says that coercion is not applicable to such mitzvot. Different solutions are offered to the problem. The simplest solution is that of the Ri, namely, the court can force someone to give tzedaka because of the prohibition of "Do not shut your hand." Those who do not give this answer might assume that the relationship between the positive and negative mitzvot of tzedaka is similar to the approach suggested by the Ramban above. Because coercion should not apply to the positive mitzva, it also does not apply to the negative one whose sole purpose is to strengthen it.
Several approaches are open to understanding how the Ri would react. He might object to the possibility of such a negative mitzva. Even if he is open to its existence, he might not believe that this is the nature of the mitzvot of tzedaka.
There also might be cases where the negative commandment applies and the positive one does not (following the Tosafot's approach as opposed to that of the Ramban). On the other hand, there might be cases where one does not transgress the negative command even though he does not fulfill the positive one (i.e., one could still follow the Ramban's approach, but assume that not in all cases was there a need to strengthen the positive mitzva).
The Rambam seems to view the positive and the negative mitzvot of tzedaka differently. In Hilkhot Matnot Aniyim 7:1 he writes, in general, "There is a positive mitzva to give tzedaka to the poor." When, in the next halakha, he speaks about the negative commandment, he is more specific - "Anyone who sees a poor person requesting and ignores him and does not give him tzedaka transgresses a negative commandment." Only when the poor person's REQUEST is ignored does he transgress the negative commandment.
The Rashba (Shevu'ot 25a), quoting the Tosafists, goes further than the Rambam. The gemara there relates to one who vows by saying "I will give." It says that when one makes such a vow to give tzedaka it is not binding, because the Torah commands us to give tzedaka and vows are not binding in areas where halakhot already apply. The Rashba quotes some of the Tosafists who say that only a vow to give when a poor man requests is not binding. A vow to give charity which is not in response to a request does take effect.
These Tosafists go a step further than the Rambam.
One might also have suggested a middle approach: one transgresses the negative commandment only if the poor person solicits him for a contribution, but the positive mitzva applies even when one just sees the poor man.
The Rambam lists a second source for the mitzva of tzedaka, the verse in parashat Behar (Vayikra 25:35), "When your brother becomes poor and his hand (his means of support) fails with you, you should support him even if he is a stranger or a sojourner living amongst you." What is the relationship between these two parshiot?
It seems most likely that the two parshiot of tzedaka complement each other and express different aspects of the mitzva. We will suggest several distinctions between the two parshiot.
While the parasha in Behar speaks only of "supporting" (ve-hechezakta) the poor, in Re'ei the Torah commands to give him "all that he lacks" (dei machsoro). The gemara (Ketubot 67b) understands this to mean providing the lifestyle he is accustomed to, "even [if it entails supplying him] a horse to ride on or a servant to run before him."
On the other hand, the scope of the parasha in Behar is broader: the Torah there refers even to a "stranger," whereas the parasha in Re'ei speaks only of "your brother."
The Ramban, in his appendix to the Rambam's Sefer Ha-mitzvot (Ramban's additional positive
A further distinction: the parasha in Re'ei only mentions a requirement to give if the poor man requests. We are then required to respond generously, to supply whatever the poor person lacks. Such a requirement does not appear in Behar; however, the support required by that parasha is minimum subsistence - keeping him alive.
The parasha in Re'ei refers to the land of Israel - " parasha in Behar seems to apply even outside Israel. The nature of the obligation inside Israel might also differ from that outside of it. Outside Israel the mitzva might just involve individuals relating to individuals, whereas in Israel the mitzva might also include public responsibility to care for the community's poor.
Two types of tzedaka obligations emerge from the above analysis: one whose scope is very broad but demands much less; and another much more limited in scope but very demanding. The parasha in Behar applies even to non-Jews and even outside of Israel, yet it demands only basic support for the poor (perhaps only on a private level). The parasha in Re'ei is limited to Jews in Israel, and only when a request has been made, but demands supplying anything the poor person lacks (and perhaps exists even on a communal level).
We can suggest another possible distinction between the two parshiot. Ha-gaon Rav Yosef Dov Soloveitchik zt"l developed the distinction between the ACTION (ma'aseh) and the FULFILLMENT (kiyum) of a mitzva. Usually the action of the mitzva and its fulfillment come simultaneously. So, for example, when one takes the four species in his hands, he also fulfills the mitzva. However, there are some mitzvot where the two might not come together. For instance, the act of the mitzva to "be fruitful and multiply" is having marital relations. The fulfillment of the mitzva only happens later when children are born. Sometimes the aspect of the person where the two take place is not the same. There are certain ritual acts that the mourner is obligated in, but it is clear that the fulfillment of the mitzva relates to the mourner's inner experience.
Rav Soloveitchik zt"l claimed that the mitzva of tzedaka is one of these mitzvot. While the act that tzedaka involves is certainly giving money to a poor person, the fulfillment of the mitzva takes place in the giver's heart. Fulfilling the mitzva means relating to the poor in a certain inner way.
This explains why the Rambam (Hilkhot Matnot Aniyim 7:10) rules that one being forced to give tzedaka is required to be present when his property is being confiscated. He must observe to be able to have the inner fulfillment of the mitzva. The Sefer Ha-chinukh (mitzva #479) includes the inner experience of tzedaka as part of the definition of the mitzva. He titles the mitzva, "To perform tzedaka WITH JOY."
Perhaps, in the direction of the Sefer Ha-chinukh and Rav Soloveitchik zt"l, we can suggest that the two parshiot of tzedaka relate to two aspects of the mitzva, the act and the fulfillment. The parasha in Behar relates to the basic act of the mitzva, supporting the poor, while the parasha in Re'ei focuses more on the inner fulfillment of the mitzva - as the Chinukh says, "with joy and a glad heart." This more intense level of the mitzva is, as we developed above, more limited in scope.
Another suggestion (that goes in a very different direction than this presentation until now) builds on the Rambam's description of the ideal kind of tzedaka in Hilkhot Matnot Aniyim 10:7. He builds on the parasha in Behar: "The highest level of tzedaka is to support (le-hachazik be-yad) a Jew who has become poor ... or to find him work so he does not have to beg. Concerning this it says, 'You should support him, etc. (the verse in Behar) ... in other words, support him so he does not fall and become needy."
This high level of the mitzva might be the focus of the parasha in Behar while Re'ei speaks of the basic level of the mitzva.
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