In describing the history of the various commandments, Maimonides writes[1] that Issac was the first person to have given tithes. The source of this is a Midrash[2] which says explicitly that when the Torah says[3], "Issac sowed in that land and he reaped one hundredfold", the Torah is hinting to the fact that Issac evaluated the potential produce of his fields in order to tithe his produce. However, Rabbi Avraham ben Dovid (1125-1198) argues and writes[4] that Abraham was the first person to have given tithes. Rabbi Yom Tov ben Avraham Ashevilli (1250-1330) explained[5] the source of this idea is a passage in Genesis, which, in describing the meeting between Abraham and Malchizedek states[6], "And he gave to him tithes from everything", that is, Abraham gave Malchizedek the Priest and King of Jerusalem (then-called Salem) the tithes[7]. Nachmanides (1194-1270) further explains[8] that although Abraham did not wish to receive any of the spoils of the war between the five kings and the four kings, he did wish to give the Priest his allotted portion. Seemingly, Maimonides argued on the popular explication of the verse in Genesis and understood that Malchizedek gave the tithes to Abraham, not vice versa, so Abraham could not have been the first to give tithes. Rabbi Chizkiyah ben Manoach understood the verse in this fashion[9], and Rabbi Dovid Kimchi (1160-1235) logically proved[10] that this has to be the explanation because if Abraham himself did not want to accept any presents, then he would not have offered presents to anyone else. However, according to the explanation of Nachmanides, this assessment is not necessarily true because perhaps Abraham wanted to give the Priest his priestly portion, while taking nothing for himself. Furthermore, Rabbi Aharon Rotter asks[11], if Maimonides understood that Malchizedek gave Abraham the tithes, then Maimonides should have said that Malchizedek was the first to give tithes, not that Issac was the first to give tithes. Rather, it must be that both Maimonides and the Ra'avad agree that verse in Genesis cannot mean that Malchizedek gave Abraham the tithes, so Maimonides must have had some other reason as to why he wrote that Issac was the first to give tithes.
Rabbi Meir Simcha HaKohen of Dvinsk (1843-1926) explains[12] that "he gave to him tithes from everything" refers to HaShem giving Abraham tithes from everything. He explains that there are seventy nations based on the ethnological table given in the Torah, where seventy grandsons of Noah are enumerated, each of whom became the patriarch of a nation. HaShem promised to give Abraham the land of Canaan which was occupied by seven nations[13]. Therefore, Abraham received a tenth of the world in the land of Canaan which was the tithe which HaShem gave Abraham. Others explain[14] that the verse refers to Abraham giving Malchizedek tithes, but that Maimonides understood like Nachmanides[15] that the Abrahamic family had the status of Jews before the Sinaitic Revelation only when they were in the Land of Canaan. Therefore, when Abraham gave tithes to Malchizedek, the King of (Jeru-) Salem, he was merely fulfilling the normal Torah commandment of giving tithes because he was bound to the Torah like any Jew because this occurred within the Land of Canaan. However, when Issac tithed, he was in the land of the Philistines which according to some halachik authorities does not have the sanctity of the Land of Israel[16], so he was not obligated to tithe under the Torah law as a regular Jew, so Maimonides understood that he instituted the custom/commandment of giving tithes before the giving of the Torah at Mount Sinai, even in the Diaspora. According to this explanation, Maimonides concurs with the various passages in Midrash which state that Abraham took of his tithes[17]. Even though tithes are usually given to a Kohen, a priest with lineage from Aaron, one can argue that Malchizedek himself was a priest or that since he was Shem, the son of Noah, he was a Rosh Yeshiva and the Midrash says[18] that the main recipients of charity are supposed to be Torah scholars.
Rabbi Yosef ben Ephraim Karo (1488-1575) explains[19] that Maimonides agrees that Abraham gave Malchizedek tithes, but that Abraham only gave him the tithes from the spoils of the war (which he himself refused to receive). Similarly, Rabbi Meshullam Dovid Soloveitchik says[20] that Maimonides did not consider Abraham's tithing a true tithing because it was only a tithing of a thanksgiving offering, not a real tithing. Alternatively, Rabbi Aharon Rotter explains[21] that usually, one is only obligated to give tithes of his flora and fauna, but not of "everything" which seems to include even movable possessions which are not obligated to be tithed, and the Torah says that Abraham gave Malchizedek "tithes from everything." Therefore, Maimonides did not look at Abraham's tithing as an example of the fulfillment of the commandment of tithing, only Issac's tithing was on the produce of the land, so Maimonides wrote that Issac was the first to take off tithes. A proof that tithing from "everything" is not considered tithing in the sense of the commandment of tithing can be seen in the translation of Onkelos. Every time the Torah refers to tithing[22], Onkelos translates the word "tithe" ("Ma'aser" with a Suf) into "tithe ("Ma'aser" with a Samech), however, in two instances Onkelos translates the word "tithe" ("Ma'aser") into "one from ten" ("Chad min Asra"). The first instance of this is when the Torah describes Abraham giving tithes to Malchizedek and the second is when Jacob promises[23] to give tithes from all which he owned. Just as in the latter case, Jacob was obviously not merely fulfilling the commandment of tithing because the promise was on all his possessions, not just those which are obligated in tithes, one can reason that the former case, of Abraham's tithing, was also not an example of the commandment of tithing because it was tithes even from those items which are not required to be tithed. Rabbi Aharon Leib Steinmen explains[24] that Abraham was not giving tithes as tithes, but rather he was giving the tithes out of the kindness of his heart and it was really given as charity to the poor, not tithes, like the words of Nachmanides[25] who said that Abraham used to give charity to the poor.
Jacob promised HaShem that should he return from Haran in peace, then "from all that You give to me, tithes—I shall surely tithe"[26]. Based on this, the Midrash says[27] that Jacob instituted monetary tithes. Perhaps the reason why Maimonides makes no mention of this fact in his history of the commandments is because Maimonides subscribes to the opinion of Rabbi Yoel Sirkes (1561-1640), who wrote[28] that monetary tithes is not a separate commandment of tithing, but rather is an extension of the commandment of Tzedakah (charity). According to this, monetary tithes are merely the prescribed amount of measurement as to what extent one is obligated to give charity. Based on the double expression used by Jacob "tithing—I shall surely tithe", the Rabbinical Court in Usha[29] decreed that one cannot tithe more than twice, they ruled[30], "One may not squander to charity more than one-fifth." This means that one may not[31] give more than one-fifth of his property to charity, yet the Talmud says[32] that King Munbaz, a convert to Judaism, gave all his storage houses and his family's royal treasure to the poor of Jerusalem during a famine? Although one can answer simply that the decree of the rabbinical court in Usha was proclaimed after this incident with King Munbaz, seemingly the decree was always true, and it was just them who officially promulgated it. Rabbi Yaakov ben Yoseph Reischer (d. 1733) answered[33] that a king is allowed to give more than one-fifth to charity. Similarly, the students of Yeshivas Chevron in Jerusalem answered[34] that only an individual cannot donate more than one-fifth of his money to charity, but a public conglomeration using public funds is allowed to donate more than twenty percent of the funds. Rabbi Achai Gaon wrote[35] that if the poor are present in front of the donator, he may give more than one-fifth of his own total. Rabbi Yaakov Emden (1697-1776) explained[36] that during a famine one is allowed to give more charity than one-fifth of his possession because of the risk that the poor people might die from lack of food. He also answered that someone who is enormously wealthy is allowed to squander more than one-fifth to charity. The Chofetz Chaim, Rabbi Yisrael Meir HaCohen Kagan (1838-1933), also explained[37] that in order to keep pauper alive, one is allowed to donate more than one-fifth of his property. He also answers that one who has a steady income and receives a certain amount of money at certain givens intervals (salary) is allowed to give more than one-fifth of his property to the poor. He also answers that if one is otherwise going to waste his money on meaningless purchases of vanity, then he is allowed to squander more money on the poor than one-fifth of his money.
Although Maimonides makes no mention of this, Rabbi Akiva Eiger (1761-1837) points[38] out that according to the Ran, Rabbi Nissim ben Reuven of Gerona (1320- 1380), a Noachide has the commandment of giving charity[39]; the Ran learns this from Abraham. Rabbi Shmuel Edels (1555–1631) explains[40] that the commandment of charity is not included in the Seven Noahide Commandments because it is an active positive commandment, as opposed to a passive negative commandment which all the Seven Noachide Laws are (except for the law to establish courts). However, Rabbi Elchonon Wasserman (1875-1941) says[41] that Maimonides[42] and the Talmud[43] imply that a Noachide is not commanded to give charity. Perhaps, one can say that they are not necessarily commanded in giving charity, per say, but they are still required to do so because Rabbi Nissim ben Yaakov Gaon (990-1062) said[44] that Noachides are commanded to do all that which is logically required to be done for the upkeep of the world, even if they are not explicitly commanded to do each thing. (In a similar vein, Tosafos say[45] that a non-Jew does receive some merit if he refrains from accepting interest even though non-Jews are not enjoined by the usury laws of the Torah.)
Rabbi Elchonon Wasserman, may his blood be avenged, said that according to the Ran, the pre-Sinaitic Abrahamic family must have had the status of Noachides not Jews. He explains that had they had the status of Jews, not Noachides, then the Ran would not have learned that all Noachides have a commandment to give charity from Abraham because Abraham, had he been a Jew, would only have been Rabbinically required to give charity because there were no other Jews around for him to have been biblically required to give, and a Jew's charity to a non-Jew is only Rabbinically decreed, not biblically mandated[46]. Rabbi Wasserman says that if one wants to learn that Abraham was a Jew, not a Noachide, one is forced to answer that Abraham must have given charity to his students whom he converted. In his final analysis[47], Rabbi Elchonon says that the Abrahamic family before the Sinaitic Revelation had the status of Jews, but they only had this status in regard to commandments which they had. So, Abraham, who only had the commandment of circumcision, was only a Jew in regard to his commandment of circumcision, Jacob who also had the commandment not to eat the sciatic nerve, was a Jew in regard to that commandment as well, etc… This is the meaning of Maimonides' description of the history of the commandments from Adam until Moses. However, even though the Abrahamic family was only considered Jewish in regard to certain commandments, they still willingly accepted upon themselves the fulfillment of all the commandments, unless it interfered with HaShem's wishes or their destiny (like Jacob marrying two sisters).
According to Rabbi Wasserman, the Pre-Sinaitic Jews were not obligated to keep all six-hundred and thirteen commandments of the Torah, but they did so willingly anyways. This is difficult because the Talmud says[48] that anyone who is exempt from something and who nevertheless performs it is called a simpleton. Rabbi Yoseph ben Meir Teomim (1727-1793) explains[49] that by performing this deed from which one is exempt, one is actually detracting from one's stature. So how then did the Abrahamic family carry out commandments from which they were exempt? Perhaps one can answer through another idea which Rabbi Yoseph Teomim said[50]. He said that one is only called a simpleton for performing a deed from which he is exempt if according to all halachik authorities he is exempt. However, if according to some poskim he is obligated in the deed, even if the final Halacha is not decided in accordance with those poskim, one is not branded a simpleton for performing the deed. Therefore, even though according to Rabbi Wasserman the Abrahamic family only had the status of Jews concerning those commandments in which they were already commanded, there are still other opinions as to the legal status of the Abrahamic family, so they had a right to be stringent on themselves and perform even those commandments which they were not yet commanded and were still not considered simpletons. However, logically since Rabbi Wasserman's own explanation is mutually exclusive, it excludes the possibility of other understandings[51], so one cannot say they were performing the commandments based on another halachik understanding of them.
Rabbi Wasserman himself refers the reader to the words of Rabbi Betzalel Ashkenazi who quoted[52], in the name of Rabbi Menachem Meiri (1249-1310), an explanation as to when one is not called a simpleton for carrying deeds which he is exempt from. The Meiri said that one is only called a simpleton if he performs something which no one in the world is obligated to do and is not something which is done because of a logical conclusion, or to act with dignity, or to show one's servitude to HaShem. The commandments of the Torah are something which people in later generations were obligated to do, they are all sourced in pure logic (because the Torah is the logic on which the world runs), they are all dignified actions and they are all expressions of one's service to HaShem. Rabbi Usher Weiss[53] answers that only if one is exempt from something, then he is called a simpleton for performing it; but, if he is not exempt, but is merely not commanded in it, he is not called a simpleton for doing it. Therefore, since the Abrahamic family were not command-but-exempt from certain commandments, they were never commanded those commandments, then the performance of those commandments will not cause them to be regarded as simpletons.
[1] Laws of Kings 9:1
[2] Genesis Rabbah 64:6
[3] Genesis 26:12
[4] Laws of Kings 9:1
[5] Migdal Oz, Laws of Kings 9:1
[6] Genesis 14:20
[7] This echoes the words of Rashi to Genesis 14:20, Genesis Rabbah §43:8, and Pirkei D'Rabbi Eliezer Chapter 27
[8] Genesis 14:20
[9] See Chizkuni to Genesis 14:20
[10] Radak to Genesis 14:20
[11] Sha'arei Aharon to Genesis 14:20
[12] Meshech Chochmah to Genesis 14:20
[13] See Genesis 15:19-21 where HaShem promises that lands of ten nations will be given to Abraham and Bava Basra 56a says that the first three do not count
[14] Emek HaMelech cited in the Sefer Likutim of the Rabbi Shabsai Frankel edition of Maimonides' work
[15] Ramban to Genesis 18:25
[16] Which is why, according to many authorities, the Israeli government was halachikly allowed to disengage from certain areas of the Gaza Strip and sell them to the Palestinian Arabs
[17] For example, see Pesikta Rabbasi to Deuteronomy 14:22 which says so. See also Pesikta Zutrisa to Genesis 1:1 which states that only ten generations into humanity did tithing begin because Abraham was a tenth generation descendant of Adam.
[18] Yalkut Shimoni Torah §893
[19] Kesef Mishnah to Laws of Kings 9:1
[20] As quoted in Shai L'Torah to Genesis 14:20
[21] Sha'arei Aharon to Genesis 14:20
[22] For example Deuteronomy 14:22 and Targum Onkelos ad loc.
[23] Genesis 28:22
[24] Ayeles HaShachar to Genesis 14:20
[25] Ramban to Genesis 26:5
[26] Genesis 28:22
[27] Genesis Rabbah 70:7
[28] Bayis Chadash (Bach), Yoreh De'iah §334
[29] Which was actually the Sanhedrin who were exiled from Jerusalem to Yavneh to Usha (see Rosh HaShannah 31a)
[30] Kesubos 50a
[31] Maimonides understand that it is not forbidden to give more than one-fifth of one's property to charity, it is just not considered more "kind" than someone who does not. (See Maimonides' commentary to Mishnah in the beginning of Tractate Peah and the end of Laws of Erachin).
[32] Bava Basra 11a
[33] Iyun Ya'akov to Ein Ya'akov to Bava Basra 11a
[34] Knesses Yisroel (Winter-Summer 5763) on Bava Basra 11a
[35] Sheiltos §62
[36] Sheilas Yaavetz §3
[37] Ahavas Chesed, Section 2, Chapter 20
[38] Gilyon Rabbi Akiva Eiger to Maimonides' Laws of Kings 9:1
[39] See Chiddushei HaRan to Sanhedrin 56b
[40] Maharsha to Sanhedrin 56b
[41] Kovetz Shiurim to Bava Basra §24
[42] Laws of Murder 12:15
[43] Bava Basra 3a
[44] Introduction to the Talmud, printed in the Vilna Shas before Brachos 2a
[45] Bava Metzia 71a
[46] See Maimonides, Laws of Kings 10:10
[47] To answer the question of the Parshas Derachim
[48] Jerusalem Talmud, Brachos 2:9
[49] Introduction to Pri Megadim, Second Epistle, Letter Hay
[50] Pri Megadim in Eshel Avraham, Orach Chaim §32:8
[51] This explains why Rabbi Wasserman expressed astonishment at the fact that the Parshas Derachim did not immediately answer like he answered.
[52] Shittah Mekubetzes to Bava Kamma 87a
[53] Minchas Usher to Genesis §5
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