|Tractate Peah, Chapter 2
Tosefta 101[If] a convert2 died [without leaving any relatives who can inherit his property] and Jews distributed his property [between themselves,3 then] whoever acquired [his field itself (i.e. the land)4 and the produce] that is attached to the ground [inside that field] is obligated in everything (i.e. all gifts to the poor and tithes),5 [whoever acquired the produce] that is detached from the ground, [but not yet piled] is exempt from everything (i.e. from all gifts to the poor and tithes),6 [and] whoever acquired the standing crops, [but not the field itself] is exempt from Leket (fallen stalks), from Shikcha (forgotten sheaths) and from Peah (corners of the field), but is obligated in Maaserot (tithes).7
מסכת פאה פרק ב
גר שֶׁמֵּת וּבִזְבְּזוּ יִשְׂרָאֵל אֶת נְכָסָיו: הַמַּחֲזִיק בַּמְּחוּבָּר לַקַּרְקָע חַיָּיב בַּכֹּל, בַּתָּלוּשׁ מִן הַקַּרְקָע פָּטוּר מִן הַכֹּל, הֶחֱזִיק בַּקָּמָה פָּטוּר מִן הַלֶּקֶט מִן הַשִּׁכְחָה וּמִן הַפֵּאָה וְחַיָּיב בַּמַּעַשְׂרוֹת.
- The Tosefta states a new law regarding gifts to the poor. It is not related to any Mishna.
- The word written in the Vienna manuscript is גוי (Goy), which means “Non-Jew”. However that is not correct, because in Talmudic literature the Non-Jew is never used as an example of someone who lived in the Land of Israel and died without any relatives to inherit him. However a convert (Ger) is the classical example of such a case, because in the Land of Israel during the Talmudic times, a lot of Non-Jews who converted to Judaism came from another country and all of their relatives remained in the country of origin. The only relatives who would be able to inherit a convert would be his Jewish wife and children and if the convert never got married in Israel after his conversion then he would essentially be alone. It is also possible that the Non-Jewish relatives of the convert were not allowed to inherit him, because they were not considered his relatives anymore after his conversion. However I am not sure if this law was universally accepted at the time of the Tosefta. See Talmud Bavli (Yevamot 48b) where Tannaim argue about the status of the convert being like a newborn baby or not after his conversion, which essentially severs his ties to his blood-relatives, and also Talmud Bavli (Bechorot 47a) where Rav Yochanan and Reish Lakish continue to argue about the same question. Both of them lived during the middle of the 3rd century CE already after the Tosefta has been completed and therefore it is clear that even by then it was not universally accepted whether the Non-Jewish relatives of a convert inherit him after his death or not.I would like to suggest that the reading גוי (Goy) in the Vienna manuscript is actually an error that occurred from another manuscript where it was written גר (Ger) and then the vertical line of letter Reish (ר) cracked, which made it look like two separate letters, Vav (ו) and Yud (י), spelling the word גוי (Goy). The copyist not realizing that it is a defect simply copied what he saw and as a result of that the word Goy crept into some manuscripts. Therefore I have decided to keep the reading of the Erfurt manuscript, which is גר (Ger), meaning “convert”.
- By Jewish law, when a person dies without any relatives to inherit him all of his property automatically becomes Hefker (ownerless) and anyone who acquires that property by performing some kind of an act of acquisition (Kinyan) becomes its new owner, on a first come first serve basis. See Mishna Bava Batra 4:9 where the Mishna just assumes this rule to be true. The source for this rule is unknown, although it might just stem from logic that since there was no set government office in the ancient world that takes ownership of ownerless property it simply remains ownerless and can be taken by anyone who wants to do so. A similar concept existed in Roman law, known as Caduca, which essentially was property left by a person who died without any kind of heirs. Such property became public property or from the reign of Emperor Caracalla became the property of the Caesar, known as Fiscus. See Sir William Smith, A dictionary of Greek and Roman antiquities, 2nd edition, Little, Brown, and Co., 1859, entry Bona Caduca, p. 206. The Rabbis have never made any kind of a special decree that would make such property transfer over into the possession of the king, the court or anyone of greater authority, and therefore the law remained as dictated by logic that such property becomes ownerless and can be acquired by anyone on first come first serve basis. For various types of Kinyanim (acts of acquisition) on different types of property see Mishna Kiddushin 1:2-5.
- The Tosefta does not say that he acquired the land itself and implies that he only acquired standing crops. However if that was the case then this case and the last case of the Tosefta would both mean exactly the same thing. Therefore all commentators agree that the first case of the Tosefta must mean that he acquired both the field and the standing crops, where as in the last case he only acquired the standing crops, but not the field. It should also be noted that a similar Beraita is quoted in Talmud Yerushalmi (Kiddushin 1:5, Daf 12a) and there it says that the first person who “acquired the land” is obligated in everything. Chazon Yechezkel proposes that the reading in this Tosefta should be changed to read like the Beraita in the Yerushalmi, since that is what it means anyway, however I think that it is unnecessary, especially when it is clear that the Yerushalmi is quoting a different Beraita and not this Tosefta, because it says that in the case when the person acquired just the standing crops he is obligated in Leket Shikcha and Peah, but is exempt from Maaserot, which is the opposite of what our Tosefta says. The reading in all Tosefta manuscripts, printed editions as well as quoted in the Rishonim (Medieval Commentators) (see Rash Mishantz on Mishna Peah 1:6) is as I have written it above in the main text.
- Since the person acquired both the field and the produce that is growing in the field he is obligated in all gifts to the poor (i.e. Leket, Shikcha and Peah) and in Maaserot as well, as any other regular owner of the field would. Obviously the gifts to the poor themselves are exempt from Maaserot as is mentioned in Mishna Chala 1:3. But all the produce that the owner collects for himself is obligated in all tithes.
- If a person acquired detached produce regardless if it was bundled up then he is exempt both from all gifts to the poor and from Maaserot, but for different reasons. The reason he is exempt from gifts to the poor is because the obligation to leave the gifts to the poor occurred during the harvest as implied from the verses in the Torah as I already explained earlier in Tosefta Peah 2:8, note 4. Since during the harvest the crops were owned by the convert he was the one who was obligated in leaving the gifts to the poor. Whether he actually left them or not is irrelevant for the new owner. Since the new owner acquired these crops already after they have been harvested he is exempt from leaving all of these gifts.The reason that the new owner is exempt from Maaserot is a lot more complex. For a detailed description of what tithes are see Tosefta Berachot 6:19, note 3. Generally, the produce remains Tevel (untithed produce), and therefore forbidden for consumption, forever until someone removes all of the tithes from it. The obligation of removing the tithes comes when the farmer performs an action which signifies the end of the harvest, such as the farmer piled up the produce, whether in the field or in the silo, or simply brought it inside his house. See Mishna Maaserot 1:5. It is not clear from the Tosefta’s language if is talking about produce which has been piled and its harvesting process has been completed, or if it is talking about bundles that have been left in the middle of the field and have not yet been piled up. In either case, this law is hard to understand, because the produce should be obligated in Maaserot regardless of when it was taken. If the bundles have not been piled yet then when the new owner piles them he essentially makes this produce obligated in Maaserot from that point on, and if it was the convert who piled them already, then this produce should have become obligated in Maaserot then, and the new owner simply has to remove the Maaserot from the Tevel produce.
Before I explain what exactly the Tosefta’s opinion is I would like to digress a little and mention the opinion and explanation of this law based on the Beraita quoted in Talmud Yerushalmi (Kiddushin 1:5, Daf 12a), because it will better illustrate the significance of the Tosefta’s opinion. This issue is discussed by the Rash Mishantz in his commentary on Mishna Peah 1:6 and is further expanded upon by Rav Yisrael Yehoshua Trank in his book on the Rambam’s Mishneh Torah called Yeshuot Malko (Hilchot Terumot 2:11). The Rash, as explained by Yeshuot Malko, proposes various possible conditions for the case when the produce that used to be ownerless and then was acquired by someone is exempt from Maaserot. His main explanation is that if the field itself was ownerless while the harvest took place then the harvested produce would be exempt from Maaserot. Unfortunately this explanation does not fit into the case of our Tosefta, because the Tosefta implies that this detached produce was harvested by the convert while he was still alive and therefore at the time of the harvest the field was not yet ownerless. The other possible explanation is that the convert left the harvested produce lying in the field and did not pile it yet when he died. Therefore when the new owner acquires it, it comes from an ownerless field, but it did not become obligated in Maaserot yet, because it has not been piled up. Since it was acquired from an ownerless field it never becomes obligated in Maaserot. The Rash proposes various reasons why produce acquired from an ownerless field is exempt from Maaserot according to various opinions of understanding of the nature of ownerless property. Some of them are based on logic and some are derivations from verses in the Torah. It should be noted that not all of these reasons can be applied to the opinion of this Tosefta, since some of them are not only applicable to non-ownerless produce from an ownerless field, but also to ownerless produce from a non-ownerless field. Since the Tosefta clearly says in its third case that if the person only acquired the standing crops which are still attached, but did not acquire the field itself he is still obligated in Maaserot, it is clear that the Tosefta holds that the fact that the field itself is ownerless does not exempt the produce from Maaserot as long as the produce was harvested after the field became ownerless. Our Tosefta holds that the only time the produce is exempt from Maaserot is when it was harvested before the field became ownerless, but did not become obligated yet in Maaserot because it has not been piled. In other words, it appears that the Tosefta requires two conditions to be true in order for produce to be exempt from Maaserot: 1) it came from an ownerless field, and 2) it became ownerless after it was already harvested. The Rash himself quotes our Tosefta and writes that he does not have an explanation for it, because no matter how you learn it one of its conditions gets contradicted as I already illustrated. He concludes that the text of the Tosefta must be incorrect and the correct version is in Talmud Yerushalmi (Kiddushin 1:5, Daf 12a), which I already mentioned in note 4, where the 3rd case is reversed and it says that the person who just acquires standing crops is obligated in gifts to the poor, but is exempt from Maaserot. The Rash concludes that that Beraita is consistent with the logic that any produce that was acquired from an ownerless field, regardless if it was still attached to the ground and needs to be harvested or was already harvested, but not yet piled, it is exempt from Maaserot since it comes from an ownerless field.
Despite all of the above problems I would like to propose an explanation for the law of Maaserot in our Tosefta without changing it. Mishna Chala 1:3 explicitly says that ownerless produce is exempt from Maaserot, but it does not explain exactly when that happens or why. Mishna Maaserot 1:1 also implies that Hefker produce is exempt from Maaserot because it says that only produce that is “watched” by someone (i.e. someone cares about it) is obligated in Maaserot, meaning that it has to belong to someone. Our Tosefta obviously agrees with that law, but it has a very specific set of conditions of when that exemption can occur. The Tosefta does not require the field to be ownerless at all, as the Rash assumed. After all it never says that. In fact according to the Tosefta it makes no difference what the status of the field itself is. It could be owned by someone or be ownerless. All the Tosefta cares about is when the new owner acquired the produce. As long as the owner acquired the new produce before it was harvested it is obligated in Maaserot as is the situation in the first case and in the third case of the Tosefta. However if the produce became ownerless after it was harvested, but before it became obligated in Maaserot (i.e. it was cut off from the ground, but not yet piled) then it becomes exempt from Maaserot due to becoming ownerless after the harvest. According to the Tosefta, ownerless produce is exempt from Maaserot only if it was ownerless right after the harvest, but before the obligation of the Maaserot took place. You may wonder why the Tosefta holds that only in this case. The explanation is as follows. The Tosefta holds that the produce cannot be ownerless during the harvest itself because as soon as someone harvests it it belongs to that person. The act of cutting the produce off constitutes a Kinyan (act of acquisition) and there it does not matter if the produce was ownerless while it was attached to the ground. As soon as it is harvested it is not ownerless anymore. If the produce was already piled and became ownerless after that then it is still obligated in Maaserot, because once it becomes obligated in Maaserot it remains so forever until the tithes are removed. That leaves only one possible case when ownerless produce can become exempt from Maaserot, and that is the produce became ownerless while it was is lying untouched after it has been harvested, but before it was piled. Since it did not become obligated in Maaserot yet, it is exempt from them due to being ownerless. The reason why ownerless produce is exempt from Maaserot is derived from the verse in the Torah by Rav Yochanan in the name of Rebbi Yanai in Talmud Yerushalmi (Maaserot 1:1, Daf 1b). The Torah says with regard to Maaserot (Devarim 14:29):
וּבָא הַלֵּוִי כִּי אֵין לוֹ חֵלֶק וְנַחֲלָה עִמָּךְ, וְהַגֵּר וְהַיָּתוֹם וְהָאַלְמָנָה אֲשֶׁר בִּשְׁעָרֶיךָ, וְאָכְלוּ, וְשָׂבֵעוּ, לְמַעַן יְבָרֶכְךָ יְהוָה אֱלֹהֶיךָ, בְּכָל מַעֲשֵׂה יָדְךָ אֲשֶׁר תַּעֲשֶׂה.
And the Levite would come, because he does not have any share or inheritance with you, and the convert, and the orphan, and the widow who are in your gates, and they will eat and be satisfied, so that Hashem, your God may bless you in all of the deeds of your hand that you may do.”
Rav Yochanan explains that the verse teaches us that the farmer has to give the Levi (Levite) the tithe from something that he otherwise cannot have. However, ownerless produce as well as gifts to the poor the Levi can just come and take them and it is not something that he is not able to get without the farmer specially giving it to him. Therefore all of the gifts to the poor as well Hefker are exempt from Maaserot. Obviously this reason is universal regardless of how we limit the exemption of ownerless produce from tithes. Therefore the Tosefta would agree with this reason as well as the Yerushalmi itself even though they have opposite views regarding what type of ownerless produce is exempt and what type is obligated in tithes.
- According to the Tosefta, produce that was acquired by the new owner while it was still standing either by pulling it or by harvesting it is obligated in Maaserot, since during the moment of harvest it was already owned by that person, as I already explained in the previous note. However it is exempt from all of the gifts to the poor, because by gifts to the poor the Torah says (Vayikra 19:9 and 23:22) שָׂדְךָ, “your field”, which requires the field to be owned by someone, as I already explained earlier in Tosefta 2:8, note 3. However, in this case the Tosefta is specifically talking about where the field still remains ownerless and only the standing crops were acquired by the person, which makes them still exempt from the gifts to the poor.