Giving charity and Maaser if one owes money to others:

A. Background:

The obligation to pay back owed moneys:[1] It is a Biblical obligation for a person who borrowed money to pay back that money that he owes. One who does not do so transgresses the verse[2] of “Loveh Rasha Velo Yeshaleim,” a borrower who does not pay back is considered a Rasha.” This applies for any type of debt incurred whether due to borrowing money, or due to services or merchandise that one received and has yet to be paid for, or due to money owed to employees. In all cases that one owes money to another, he is obligated to pay.

The obligation to give charity and Maaser: Every Jew is obligated to give charity annually.[3] It is a good custom[4], and according to some opinions an actual obligation[5], to separate 10% of one’s earnings to charity annually.[6]

The question that is raised based on the above information is regarding an individual who owes other people money, and cannot afford to both pay them back and also separate 10% of his earnings for Maaser. Which then takes precedence; the mitzvah and obligation to pay back some of who you owe money to, or the mitzvah, and according to some opinions actual obligation, to designate 10% of all your earnings to charity?

B. The law:[7]

One who owes money to others [even a gentile[8]] is to first pay his debts prior to separating money for the purpose of charity, if he is unable to fulfill both. Thus, if necessary, he is to take a break from his Maaser contributions until all of his debts are paid up, and then restart. One who does not do so, and rather gives to charity instead of paying back the people to whom he owes money to and are awaiting to be paid back, then such charity is not considered a merit for the giver[9], and in fact God hates such charity.[10]

Marking down the missed Maaser period:[11] Although an individual in the above situation is in essence exempt from giving Maaser during this period of time that he cannot afford to both pay his debt and separate Maaser[12], nonetheless, it is proper for one to mark down the amount of money that he would’ve needed to separate for Maaser based on his earnings during the period that he is paying the debts, and then in the future when he can afford it, he should pay back these owed Maaser funds. This especially applies if he does not live a frugal life and spends lavishly on himself, that he in essence still remains obligated in his Maaser contributions.

If one has a payment plan:[13] All this, however, only applies if the money needs to be paid back right away. If, however, one has a payment plan with his creditor, then one is not required to pay him back all the money right away, and is rather to pay back the agreed upon amount per month, and separate 10% Maaser funds as usual, or in accordance to his affordability.

Obligation to nonetheless give some charity annually:[14] The above exemption from charity contributions for the sake of paying debts is only with regards to the separating of 10% for Maaser. However, even a person who has debts is not exempt from separating some charity annually, and hence he too is obligated to donate some money to charity each year, and give some amount of donation to a pauper.

Hataras Nedarim: Seemingly, one who needs to take a break from his Maaser contributions in order to pay back debts, is not required to perform Hataras Nedarim on his general custom of Maaser.[15] If, however, he will need to cancel pledges that he made, such as monthly contributions, then he is to perform Hataras Nedarim.[16]

C. An example:

If one earns $10,000 a month, and separates $1000 a month for Maaser, and has a debt of $10,000 which he cannot afford to pay unless he stops separating Maaser, then he should stop separating his $1000 of Maaser for the next 10 months and instead use that money to pay back his debt. Once the debt is paid he should once again restart his $1000 Maaser contributions, and with time try to pay back the 10 missed months of Maaser, such as by designating $1,200 for Maaser for the next 50 months. Now, if the creditor agrees to receive a payment of $100 per month to have the $10,000 debt paid off in a span of 100 months, then the debtor is to give $100 per month towards the debt payment, and separate $900 for Maaser [if he cannot afford to separate the full 10%].

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[1] Admur C.M. Halva 4-5, Hilchos Gezeila 4, Sheila Usechirus 14; Michaber C.M. 97:3, 359:1 and 8; Rambam Halvah 1:3, Gezeila 1:2; Bava Metzia 110b and 111a

[2] Tehillim 37:1

[3] Michaber Y.D. 247:1; 249:2

[4] Bach Y.D. end of 331; Poskim in Pesakim Uteshuvos 249:21 footnote 177 and that so rule the vast majority of Poskim

[5] Biblical: Shaar Efarim 84; Rishon Letziyon; Aruch Hashulchan 249:5 in name of Taz 331:32; Poskim in Pesakim Uteshuvos 249:21 footnote 174; Rabbinical: Derisha 240:4; Birkeiy Yosef 249:3 in name of Maharil; Noda Beyehuda Kama Y.D. 73; Toras Menachem 34:272 based on Admur Hilchos Talmud Torah 1:7 regarding using Maaser to pay tuition that it is not Biblical but Rabbinical; Poskim in Pesakim Uteshuvos 249:21 footnote 175

[6] See Michaber Y.D. 249:1; Yechaveh Daas 1:87, 3:76; Pesakim Uteshuvos 249:21 footnotes 174-177

[7] Sefer Chassidim 395 “if you have money of others in your hands then do not give it to charity” and 397 “Raban Shimon says in Erechin 23b the one who has more debts than sanctification, then his sanctification’s are invalid. Therefore, one who owes someone money and cannot afford to pay him back, then he should not purchase Sefarim, and not donate charity and not hire teachers and not donate candles to the Shul, and on this it says in the verse “Soneh Gezel Biavlah”” and 454 “One who owes money to others should not increase in charity until he pays them back”; Chida in Birkeiy Yosef 251:3 in name of Sefer Chassidim 454, Bris Olam on Sefer Chassidim 397 based on Zohar Parshas Vayakhel p. 198, Devash Lefi Mareches Vav Os Zayin, Mareches Pei Os 27; Pela Yoeitz Hatzedaka Vehamaaser; Derech Pikudecha Hanhagos Yesharos 29 “One who has debts may use his Maaser money to pay the debts as also paying debts is a Mitzvah”; Igros Kodesh 29:261 “Based on what it says in Sefer Chassidim 454, only after you pay back all your debts and you have enough money for your house expenses, only then should you donate to charity in accordance to what you can afford”; Shevet Halevi 7:195 “It is obvious in my eyes that any person who owes money to another and is lax in paying it due to his Maaser contributions, that he is not doing something proper.”; Derech Emuna Matanos Aniyim 7 Tziyon Halacha 214 in name of Chazon Ish; Teshuvos Vehanhagos 5:282; Vedarashta Vechakarta Y.D. 33; Halacha Baparsha Prashas Pekudei p. 209; Vavaei Hamudim 12:16; Pesakim Veteshuvos 248:1

[8] See Q&A!

[9] Chida in Bris Olam ibid based on Zohar ibid;

[10] See Sefer Chjasiddim ibid who brings the verse in Yeshayah “Soneh Gezel Biavlah””

[11] Derech Emuna Matanos Aniyim 7 Tziyon Halacha 214 in name of Chazon Ish.

[12] As a pauper is exempt from Maaser, and receives precedence to receive his own Maaser moneys to pay his bills. [See Rama Y.D. 251:3 “Supporting himself comes prior to supporting others”; Radbaz on Rambam Matanos Aniyim 7:13 in name of Rav Sadya Gaon; Glosses of Maharik 251; Kitzur SHU”A 34:2; Igros Moshe Y.D. 2:75; 113; Minchas Yitzchak 6:101; Hilchos Maaser Kesafim 10:1-2; 16:16; Kuntrus Am Torah 5742 2:2 [article of Rav Moshe Shturnbuch; Teshuvos Vehanhagos 1:560] Now, a person who owes money to others is obligated to pay these payments and hence it is considered part of his bills that he needs to pay, and if he cannot afford to pay them, then he may use his Maaser funds to do so.

[13] Ashrei Ish Y.D. 2:45:6; Vedarashta Vechakarta Y.D. 33

[14] Michaber Y.D. 247:1; 249:2

[15] See M”A 581:12; Machatzis Hashekel ibid; Degul Merivava ibid and Yoreh Deah 214:1; Rama 568:2; 581:2 [regarding a Bris during Bahab or Aseres Yimei Teshuvah]; Shaar Hatziyon 568:133 permits in time of need if one cannot find someone to be Matir the Neder; See Piskeiy Teshuvos 568:4

Other Opinion-Opinion of Michaber and Shach: The Michaber 214:1 rules regarding the Hiddur of fasting during Aseres Yimei Teshuvah, that even if one became weak, he is required to do Hataras Nedarim. The Shach 214:2 explains that the reason for this is because only those circumstances that are publicly known not to be included within the Hiddur, such as eating during a Bris Mila during Aseres Yimei Teshuvah, do not require Hataras Nedarim. However, an unexpected circumstance is included in the Hiddur and thus requires Hataras Nedarim. The Degul Merivava ibid argues against the Shach’s explanation, and says the Michaber’s ibid ruling referred to a case that due to weakness the person wanted to revoke his custom forever, and for this everyone agrees that Hatara is required.

[16] See Michaber Y.D. 258:6; Maharsham 1:201 regarding pledges in thought; Tzedaka Umishpat [Bloy] 4:5

[17] Halacha Baparsha Prashas Pekudei p. 209

[18] See Admur Gezeila 4 that although the negative command of Lo Sashok does not apply to a Gentile creditor, nonetheless, if there will be a Chilul Hashem in not paying him back, then one must do so.