Tractate Peah, Chapter 3
Rebbi Yehuda says, “A person who made his whole field into sheaves [in order to later] stook2 them [into stooks, which in turn will be taken to the final stack]3 is [considered to be] like someone who bundles [sheaves] in [order to put them in a] stack [of sheaves, which makes the sheaves inside the stooks eligible to become Shikcha (forgotten sheaves),] and [then] rounded it (i.e. the stack) out4 [as if he has completed the stack] and [then brought more sheaves and] pressed [them] into the stack [after the stack seemed to be already finished, which is still considered to be the final act of bundling, which makes these sheaves eligible to become Shikcha].”5, 6
Bet Shammai and Bet Hillel agree that if [a person] proclaimed [his produce to be] ownerless [only] to people, but not to animals,7 [or only] to Jews, but not to Non-Jews, [it is still considered to be] ownerless [and anyone can come and take it].8
מסכת פאה פרק ג
רבי יְהוּדָה אוֹמר הָעוֹשֶׂה כָּל שָׂדֵהוּ עוֹמָרִים ומְעַמֵּר לָהֵן, כִּמְעַמֵּר לַגָּדִישׁ וְהַדְרַה וזוֹרֵר לגדיש.
מוֹדִים בֵּית שַׁמַּאי וּבֵית הִלֵּל שֶׁאִם הִפְקִיר לָאָדָם וְלֹא לַבְּהֵמָה, לְיִשְׂרָאֵל וְלֹא לַגּוֹיִם, הֶפְקֵר.
The underlying reasons for the argument in the Mishna between Bet Shammai and Bet Hillel are discussed in Talmud Yerushalmi (Peah 6:1, Daf 28a-b). Either their argument depends on the verses in the Torah from which they learn out the concept of Hefker, or it depends on the technicality of how Hefker works in terms of leaving possession of the original owner and entering the possession of the new owner who picked it up. Regardless of the reasoning proposed it is clear from the Yerushalmi’s discussion that it was not aware of this Tosefta, because in it, Amoraim, Rebbi Yochanan and Rebbi Shimon Ben Lakish, both of whom lived in the generation after the Tosefta has been written, argue regarding the law of the cases cited in this Tosefta. They were clearly not aware that the Tosefta says that Bet Shammai and Bet Hillel agree about them. Therefore, the reasons for their argument cited in the Yerushalmi may not apply to this Tosefta, since according to those reasons Bet Shammai and Bet Hillel would not necessarily agree in the cases cited here. I have already discussed in Tosefta Peah 2:11, note 5, the reasons behind this argument, and I will not repeat them here. However, additional reasons need to be added as to why they agree in these two cases.
The case of the animals is simple. Since there is no concept of possession by animals it is clear that not letting animals to take something does not in any way show that the item proclaimed ownerless only to people is not ownerless. The concept of ownership and ownerless can only apply to people. And therefore everyone agrees that if the owner made something Hefker and excluded animals from his declaration it makes no difference, and it is as if the owner included everyone possible to be included into his proclamation. Therefore the item remains Hefker with all of its implications.
It is difficult to understand this second case, since Non-Jews, just like Jews, have a concept of possession in Torah law. See Talmud Bavli (Bava Metzia 47a). Even the concept of Hefker itself applies to a Non-Jew, since a Non-Jew himself can proclaim something ownerless and it will obtain that status, as was already stated in Mishna Peah 4:6 and Tosefta Peah 2:11. And therefore if the owner proclaimed something ownerless, but excluded Non-Jews from his proclamation, then the law should be exactly the same as if he has excluded a group of Jews, thus causing Bet Shammai and Bet Hillel to continue their argument in this case.
One proposed solution to this problem was suggested to me by my wife, Rachel, and is also mentioned by Noda Beyehuda (Mahadura Kama, Even Haezer 59), although rejected by him, that the whole argument between Bet Shammai and Bet Hillel regarding partial proclamation of Hefker is not about the whole general law of ownerless property, but rather only about its agricultural implications. In other words, as long as the object that was made Hefker was produce then Bet Shammai and Bet Hillel argue whether it is considered to be Hefker or not regarding the obligation of the new owner of the produce to remove tithes from it. However, they agree that in all of these cases the produce can be picked up by anyone and they will not violate the prohibition of theft since its original owner relinquished his rights to this produce. They also do not argue regarding partial Hefker when the item in question is not produce and therefore there is no concern regarding tithes and would agree that it can be picked up by anyone without concern for violating prohibition of theft. According to this explanation it makes sense why they would agree that excluding Non-Jews from the ownerless declaration would still exempt this produce from Maaserot. Tithing, being a commandment in the Torah, only applies to Jews. Therefore as far as tithing is concerned all Jews, both poor and rich, and from all locations, have been included in the Hefker proclamation. And therefore this produce is Hefker with regard to tithes and is exempt from them. Excluding Non-Jews is like excluding anyone else who is not involved in the process of tithing, like animals. This explanation would raise an interesting question such as, what if the owner of the produce excluded all Jews who live outside of the Land of Israel where there are no tithes. Would Bet Shammai and Bet Hillel argue in this case or not? We do not know. Since Bet Shammai and Bet Hillel lived in the Land of Israel this question did not really concern them and they did not discuss it. Or even if they did it has not been recorded for us.
Although this explanation makes some sense, because it appears in tractate Peah where generally only agricultural questions are discussed, I would like to reject it, just like the Noda Beyehuda did, for the following reasons. First of all the Mishna in its language does not mention Maaser at all. It makes a blank statement regarding the general concept of Hefker implying that the subject under discussion is the actual ownerless status of the object and not only whether Maaser needs to be removed from it or not. It also does not mention produce, but rather implies that this argument would apply to any object that was declared to be ownerless even if it is not produce. Finally, this understanding has precedence. The Mishna has been understood this way by everyone who read it, starting from the Amoraim in Talmud Yerushalmi and ending all of the commentators on the Mishna, both early and late. And although the fact that everyone understood it a certain way is not a reason to reject a particular explanation, I believe that they were right due to the other reasons that I have already mentioned.
I would like to propose a totally different explanation to this problem. It is a based on a suggestion made by Rav Shmuel Landau, the son of Rav Yechezkel Landau, the author of the Noda Beyehuda, in his responsa Shivat Tzion (Siman 103). There is a concept in Jewish law that says that in certain cases when a Jewish court judges a Non-Jew it should judge him according to the law of the Non-Jews themselves and not according to the Jewish law. See Tosefta (Avodah Zara 9:4) and Talmud Bavli (Sanhedrin 57b). In Roman law there was a concept of ownerless property, called “Res Nullius”, and there was a concept of relinquishing property, called “Missio in Possessionem”. See Adolf Berger, “Encyclopedic dictionary of Roman law”, Volume 43, Part 2 of Transactions of the American Philosophical Society, American Philosophical Society, 1953, entry Missio in possessionem, p. 584, and entry Res nullius, p. 679. However, it appears that Roman law did not have a concept of relinquishing by intention, such as making something ownerless merely by thinking about it, without some kind of an act accompanying it, such as actively throwing the object away. See Code of Justinian (2, I, 47), where it states:
And on this principle it seems quite true to say also, that if a thing is regarded by its owner as abandoned, then any one that takes possession forthwith becomes its owner. And it is regarded as abandoned when its owner has thrown it away with the intention that it shall no longer be part of his property; he ceases, therefore, at once to be the owner.
Translation from William Alexander Hunter, “A systematic and historical exposition of Roman law in the order of a code”, 4th ed., translated by John Ashton Cross, London, 1803, pp. 257-258.
In fact, Roman law in general always required an act to accompany intention, not just with regard to relinquishing property, but also with regard to crimes, as well as possession.
Justinian’s Code, Corpus Juris Civilis, compiled to from 529 to 534 CE, claimed to compile all Roman civil law from the time of Hadrian (76 – 138 CE) until its day, and therefore it is safe to assume that the same Roman law was active during the times of Bet Hillel and Bet Shammai, who mostly flourished during the 1st century CE.
Based on all of this, it would seem that according to Roman law if a person threw something away and declared it ownerless to some part of the population, he could not proclaim that a different part of the population could not take possession of that object, because the act of throwing away already showed that the owner relinquished all of his rights to the object. I would like to suggest, that Bet Hillel and Bet Shammai, being aware of this Roman law, decided to judge the Non-Jew, who in their case was a Roman, according to his own laws. And therefore when a Jew made a declaration of Hefker that excluded Non-Jews, since such a declaration had no validity in a Roman court, they decided that it would make sense to ignore it as well, just like the Roman court would, and therefore still consider the object in question ownerless to everyone, just like it would have been done in Roman law. You may wonder, why would they do this? The answer to that is simple. The Rabbis’ concern was always to distance the Jews from the Non-Jews, in order to prevent intermarriage and idol worship, and since in this case there was a legal loop hole that allowed them to show the Jews that their act is not affected by the Non-Jews in any way, even if it is merely a thought or a proclamation, it sent a powerful message, that whatever the Jews do, the Non-Jews do not concern them and do not have any legal power to control their way of life.