The Tosefta Blog

Notes:

1. Since the previous Tosefta mentioned irrigated fields, this Tosefta states a new law regarding irrigated fields and gifts to the poor. It seems to me that this Tosefta is not commenting directly on any particular Mishna. In Talmud Yerushalmi (Peah 5:3, Daf 26b) this Tosefta is quoted on a Mishna (Peah 5:3) that discusses the argument between Rebbi Meir and the Chachamim (Sages) regarding the permissibility of the watering the field with an irrigation device called in Hebrew, טופיח (Tofeach), which is known in English as a Persian water-wheel. The name Tofeach is referring a clay pitcher, or a set of pitchers, which is attached to the rope pulled by the wheel, which is automatically refilled with water from a water source over which the wheel spins.

Persian water-wheel, used for irrigation in Nubia. Lithograph by Louis Haghe from a painting by David Roberts from 1838 in Egypt. Notice that the wheel itself is spun by oxen.

The Yerushalmi connects this Tosefta with that Mishna, because the reasoning behind the Mishna’s argument seems to be that the water wheel puts so much water on the field that it prevents the poor people from entering to collect the gifts to the poor. The comparison between the rulings of the Mishna and the Tosefta is logical, however it does not seem to that this Tosefta was written as a direct comment on that Mishna, but rather as a separated, unrelated statement, which is why they look completely dissimilar in the way that they are phrased.

2. In the Erfurt manuscript the word הַמְּרַבֵּץ (Hamerabetz) is spelled הַמַרְבִּיץ (Hamarbitz). According to Marcus Jastrow both spellings are correct and may reflect different pronunciations due to variations in the spoken Hebrew dialect at the time of the Tosefta, which is what implied from different sources throughout the Talmudic literature where this word appears. Regardless of the spelling and pronunciation the meaning of this word remains the same, which is “irrigation by sprinkling” or just “sprinkling”, as opposed to the word השקה (Hashaka), which literally means “contact”, but more specifically “making water in one vessel connect with the water in another vessel by direct contact of the water contained in both vessels”. The key subtlety being that during sprinkling a droplet of water flies through the air before it lands and therefore there is no direct contact between water in the vessel from which it is sprinkled and the water in the vessel into which the droplet lands. See Marcus Jastrow, “Dictionary of the Targumim, Talmud Bavli, Yerushalmi and Midrashic Literature”, 2nd Edition, 1926, p. 1445, entry רבץ.

3. The Tosefta does not explain how such damage can be assessed, which would seem to be an almost impossible job.

4. The Tosefta states that the farmer is forbidden from watering his field that much, but it implies that if he violated the law and did it anyway, he would not need to compensate the poor for the produce which they could not collect, as implied from the following statement of Rebbi Yehuda.

5. It does not literally mean that the farmer has to put the produce on top of the fence. But rather he has to put it in a way that it is accessible without entering inside the field.

Notes:

1. The Tosefta states a new law regarding the cutoff dates of when the planting of the fields for the following year takes priority over the access of the poor to the crops of the previous year. This Tosefta is not related to any Mishna.

It should be noted that there is a lot of controversy among the commentators about how to interpret this Tosefta due to its obscure language. Some, like the Gra (Vilna Gaon), have chosen to significantly alter the wording of the Tosefta based on logic without any manuscript reference. Others, like Chasdei David, have stated that this Tosefta is completely out of place and it is really talking about burning of stubble during Shmitta (Sabbatical Year) and not during a regular year.  As will be seen from my interpretation of this Tosefta, I have shown that in fact it is talking about gifts to the poor and fits very well into the context of this chapter. Textual emendations based on logic are not necessary to put this Tosefta in its proper context as long as it is understood against the background of agricultural practices of the ancient Land of Israel.

2. Stubble is dried-up stalks, mainly of grain, left standing in the fields. Sometimes it is used by camels to supplement their regular meals, but mostly it is used as fuel for burning something. It cannot be used as food for regular domestic animals, because it is too hard. The Hebrew word for stubble is קש, as opposed to straw, which is תבן. Stubble should not be confused with straw since straw is stalks that have been cut into small pieces by the threshing process and is used as roughage for domestic animals. See The International Standard Bible Encyclopedia 1915 (entry Straw, Stubble).

Stubble gets naturally left in the fields since only the top part of the stalks gets harvested. The bottom portion of the stalk remains attached to the ground and becomes stubble.

Stubble left in the field after harvest. Photo: H. J. Sydow.

There are a few reasons why the owners of the field would want to burn stubble and not just let it wither away over the winter or simply plow it under. Stubble is considered to be residue of the previous harvest and it impedes seeding operations during the planting of the next year’s crop. Also, if the stubble is not removed it aids in the growth of weeds causing damage to the new crop. See William Schillinger, “Direct Seeding into Heavy Irrigated Stubble Instead of Burning Proposal”, Washington State Department of Ecology, 2003, http://www.ecy.wa.gov/programs/air/aginfo/research_pdf_files/schillingerproposal.pdf, accessed on August 18, 2010. Also, some research have shown that stubble that is just plowed under and not burned causes disease in the new crops. See Roy Dell Wilcoxson, Eugene Eino Saari, Barbara Ballantyne, “Bunt and smut diseases of wheat: concepts and methods of disease management”, CIMMYT, 1996, p. 56. Although, nowadays farmers look for alternative methods to burning stubble mainly, because the smoke from the fires causes a lot of pollution, stubble burning has been a traditional method of getting rid of stubble for thousands of years.

Indian farmers burning rice stubble after the harvest in November 2003. Photo: USDA.

3. Since stubble is only fit to be burned, the poor would collect it from the fields in order to use it as fuel in their homes. Although stubble does not fall into any official category of gifts for the poor based on Torah law, it appears from this Tosefta that it was something that was considered to be of value to the poor and was officially left for them to collect up to the time of the planting process for the following year. The Rabbis were very careful in making sure that the poor get their fuel and forbade the owners of the fields from getting rid of it too early. Hence this law is of rabbinic origin.

4. You may wonder why there would be stubble in an orchard since only trees grow there and not grass. The answer to this question is that cover crops are necessary to be planted in between the rows of trees in order to keep the fertility of the soil and reduce soil erosion. This even remains a common practice today. For examples of how and which cover crops are used in olive orchards see Paul M. Vossen, “Organic Olive Production Manual”, ANR Publications, 2007, pp. 41-43.

A vineyard in Sonoma County, California with cover crops planted in between rows of grapevines. Photo: Lore Sjoberg.

5. Shavuot occurs in the beginning of the summer, exactly 7 weeks after Pesach, and signifies the beginning of the fruit harvest, as was celebrated during the Temple times by the ceremony of the bringing of the Bikkurim (First Fruits) to the Bet Hamikdash (Temple). See Devarim 26:1-11.

The reason Rebbi Yehuda holds that the owner may begin burning the stubble of the cover crops starting on Shavuot is because Shavuot was the end of the harvesting season of the cover crops themselves, which usually were either some kind of grain or legumes. The cover crops are either cultivated and harvested for the sake of the crop itself or mowed and then dumped around the trees as fertilizer to prevent growth of weeds. See Paul M. Vossen, “Organic Olive Production Manual”, ANR Publications, 2007, p. 42. Even though the harvest of the fruit in the orchard just began, since the harvest of the cover crops was over, Rebbi Yehuda permitted burning of the stubble that remained after the cover crops were mowed.

6. Literally: white field. Since grass fields did not have any trees that would create shadows they were called “white fields” referring to their brightness in the sun and them being shadelessness. See Marcus Jastrow, “Dictionary of the Targumim, Talmud Bavli, Yerushalmi and Midrashic Literature”, 2nd Edition, 1926, p. 690, entry לָבָן II.

7. Rosh Hashanah occurs in the beginning of the fall, on the first of the month of Tishrei, towards the end of the fruit harvesting season. See Vayikra 23:24 and Bemidbar 29:1. However, it does not signify the end of the fruit harvest. The end of the fruit harvest is celebrated during the holiday of Sukkot, as explicitly stated in the Torah (Vayikra 23:39), which begins on the 15th of Tishrei, two weeks after Rosh Hashanah. It is not clear why Rebbi Yehuda chose Rosh Hashanah and not Sukkot as the cutoff date for burning the stubble. I would like to suggest that since the rainy season in the Land of Israel officially began on the 15th of Tishrei (see Talmud Bavli Taanit 2b), on the first day of Sukkot, Rebbi Yehuda wanted to give two weeks to the owners of the fields to be able to burn their stubble while the weather was still nice. It should be noted that during most years Sukkot falls out during the end of September or the beginning of October, which is when the rain just begins to fall. For the description of Israel’s rainy season see Efraim Orni, Elisha Efrat, “Geography of Israel”, JPS, 1973, pp. 146-147.

A more difficult question to answer is why Rebbi Yehuda chose to prohibit burning of the stubble until the end of the fruit harvesting season and not just until the end of the grain and legumes harvesting season which occurs on Shavuot. It seems to me that since grain fields were the main source of stubble, which was an important source of fuel, Rebbi Yehuda wanted to leave ample time for the poor to collect it. Since it was not critical for the owner to burn the stubble immediately after the grain harvest, because the planting of next year’s crops does not begin until the fall, Rebbi Yehuda felt that it was proper to leave the stubble for the poor at a minor inconvenience for the land owner.

8. I have chosen the reading of the statement of Rebbi Yehuda from the Erfurt manuscript, since it makes sense agriculturally. In the Vienna manuscript the reading is as follows:

בְּשָׂדֶה לָבָן עַד הַפֶּסַח בִּשְׂדֵה אִילָן עַד רֹאשׁ הַשָּׁנָה מִפְּנֵי גֶזֶל אָדָם וּבְהֵמָה

In a grass field [the poor can collect stubble] until [the holiday of] Pesach [and then it is permitted to burn it]. In an orchard [the poor can collect stubble] until [the holiday of] Rosh Hashanah, because of theft from people and animals, [and then it is permitted to burn it].

Besides the fact that this reading does not flow with the statement of the Chachamim in terms of the order of the fields and the fact that he is not arguing on them regarding the orchard, it also does not make any sense agriculturally. In the Land of Israel the grain harvest would begin on the 2nd day of Pesach with the Omer sacrifice and would conclude on the holiday of Shavuot. This grain harvesting season is emphasized in the Torah. See Vayikra 23:10-22. It would not make any sense to begin burning the stubble on Pesach since that is when the harvest just started. The farmers could only start burning the stubble after Shavuot when the grain harvest was over and they could begin planting the crops for the following year.

9. In ancient Israel most farmers relied on rain. They did not have the means to irrigate their fields by bringing water from some kind of a reservoir. The few exceptions to this were fields on the shores of Lake Kinneret (Sea of Galilee) and on the banks of the River Jordan where the farmers were able to divert the water into a canal that passed through the field. In rare cases the fields were irrigated from a water reservoir where rain water was collected. A field that needed irrigation besides regular rainfall was considered to be a lot more sensitive and doing anything to prevent irrigation of that field would pose high risk to the success of the crops. Therefore the Rabbis allowed the owner to burn the stubble immediately so that he can begin the irrigation of the field for next year’s crops.

Vineyard on the Carmey Avdat farm in the Negev desert, Israel irrigated by flash floods using ancient Nabatean methods from the Talmudic era. Photo: carmey-avdat.co.il

10. The Chachamim are of the opinion that the farmer is allowed to burn the stubble as soon as the harvesting season is over, regardless if he is going to start planting next year’s crops right away or not. In a grass field, where the produce is either grain or legumes, the harvest is over on Shavuot and therefore he can burn the stubble right after Shavuot. This allows the owner to start working on preparing the field for next year’s crop immediately after the harvest is over.

11. The Chachamim explain their opinion regarding orchards, because it is inconsistent with their logic in their previous opinion. Since they hold that the owner is allowed to burn stubble as soon as the harvest of the crop is over they should agree to Rebbi Yehuda that since the cover crops in an orchard are harvested until Shavuot the owner should be allowed to burn stubble from Shavuot on. However, the Chachamim disagreed with Rebbi Yehuda in this particular case, because they felt it would be a waste of stubble at that point in time since the farmer did not need to plant next year’s cover crops until he harvested the whole orchard. This is what they meant by saying that it would be “theft from animals and people”. Since the stubble could be used by people for fuel and animals, such as camels, for food, it would be a waste to burn it early. Since the fruit harvest ended on Sukkot, the Chachamim really should have only allowed burning the stubble after Sukkot. The reason that they allowed it from Rosh Hashanah was so that the farmer would have enough time to burn his stubble before the rains began, as I already explained in note 7.

Notes:

1. The Tosefta states a new law about food given as charity from which the owner is required to separate Maaserot before giving it to the poor. It is not related to any Mishna.

2. The Tosefta discusses a case where the poor people have gone to collect food directly from the private storage silos and not from the gifts to the poor that were left in the field. Obviously, this was a more lucrative opportunity to get charity, because each donation was much easier to obtain since it did not require collecting one stalk at a time as in the case of Leket (fallen stalks) and it was probably less involved since the poor person did not have to fight with other poor people over the remaining crops, but rather he could ask the owner to just give him some crops in a civilized manner.

3. For a detailed description of what tithes are see above Tosefta Peah 1:6, note 7.

4. Once the produce has been brought into silos it was obligated in all tithes and could not be eaten by anyone until all of the tithes were removed. See Mishna Maaserot 1:5.

5. The reason that the owner could not simply give the food to the poor without taking off the tithes first is because most of the poor did not understand the difference between the official gifts to the poor, such as Leket, Shikcha (forgotten sheaves) and Peah (corners of the field), and all other charity. The official gifts to the poor are exempt from Maaserot. See Mishna Chala 1:3. However any other food given to the poor is obligated in Maaserot. The poor thought that this food given to them as regular charity is also exempt from tithes, and therefore the owner was not allowed to give them untithed produce, because that would cause them to violate the Torah prohibition of eating Tevel (untithed produce). Therefore the owner had to first separate all of the tithes and only then give from this food to the poor.

6. It is generally assumed that the word צְּנוּעִין (Tznuin, singular: Tzanua) means “pious people”, who are scrupulous in performing commandments. However, I would like to demonstrate that this is not the meaning of this term, at least not in this case. The term used in Talmudic literature to refer to truly pious people is חסידים (Chasidim). See Mishna Berachot 5:1, Sukkah 5:2, Chagigah 2:7, Sotah 9:16, Keritut 6:3, and Tosefta Bava Kama 2:6, Sukkah 4:2, Keritut 4:2. Tznuin, on the other hand, is a term used for people who believe that they are pious, but in reality their actions only cause problems in society. They are religious hypocrites. I have chosen to translate the word Tznuin as “tartuffes”. Tartuffe is a person who is a hypocritical pretender to piety, appearing truly pious on the outside, but in reality being sanctimonious and self-righteous. This translation especially fits well in this case, because it comes from the exact same root as the original Hebrew word. The word צנוע (Tzanua) comes from the verb להצניע (Lehatznia), which means “to hide” or “to conceal”. The English word “tartuffe” comes from the name of the main character in Tartuffe, a 17th century play by Molière, where the protagonist is a religious hypocrite. This name comes from an Old French word “tartuffe”, meaning “truffle,” chosen for suggestion of concealment.

The word Tznuin, referring to a group of particular individuals, appears in Talmudic literature in a few cases, all of which share the same theme in common. The cases discuss a group of people who go out of their way to perform what seems on the surface to be a Mitzvah (good deed), but in reality causes some kind of harm to society. For example, in Tosefta Yoma 2:7 there is a story where Rebbi Yochanan Ben Nuri tells over how he once met an old person who was a member of the Bet Avtinas, a family of Kohanim (priests) who were looked down upon by the Rabbis for refusing to share with the public their secret formula for preparing the Ketoret (incense) in the Bet Hamikdash (Temple). See Mishna Yoma 3:11. The old person told him that in his father’s house there used to gather Tznuin and share with each other scrolls with the secret recipes of the Ketoret, implying that they would only pass it on between themselves, but would not share the information with anyone else. Ashamed of their behavior and full of remorse, the old man gave Rebbi Yochanan Ben Nuri his scroll with the recipe of the spices for the Ketoret and asked him to carefully keep it, implying that it is the only copy left. It is obvious that the Tosefta uses the title Tznuin in a pejorative fashion, since the members of Bet Avtinas were not held in high esteem by the Rabbis due to their behavior. Obviously the Tosefta uses this term to describe these people is because they were trying to hide something from everyone else, thinking that they are performing a great deed by carefully preserving an ancient tradition of how to prepare the Ketoret.

Another example of such usage of the word Tznuin is Mishna Kilayim 9:5 and Kilayim 9:6. Both Mishnayot discuss cases which involve clothing that are made out of Shatnez, a mixture of wool and linen, which is forbidden to be worn by the Torah. See Vayikra 19:19 and Devarim 22:11. It is clear from the verses in the Torah that Shatnez is only forbidden to be worn as a garment, but it is permitted to make and sell such garment to a Non-Jew or even a Jew who has some kind of use for it besides wearing it himself. Mishna Kilayim 9:5 states that sellers of clothing made out of Shatnez are allowed to wear the clothing that they are selling in order to properly display them to customers. Such usage of the clothes is not considered to be an act of wearing a garment, as long as the seller does not intend to actually protect himself from heat or cold while he is displaying it on his body. However the Tznuin would not display the clothes that they were selling by putting them on, but would rather hang them up on a stick. The Mishna says that the normal way of selling clothes in its day would be for the seller to wear the clothes and the way the Tznuin were selling it on a stick or on a rack was unusual. The second case, in Mishna Kilayim 9:6 is where tailors who are making Shatnez clothing keep holding it in their lap while they are sewing it. The Mishna says that that is permitted as long as the tailor does not intend to protect himself from cold or heat by holding the garment in his lap. However, the Tznuin would instead keep the garment on the ground while they sewed it and would not hold it in their lap. It seems to me that in both of these cases the Tznuin by their behavior were doing a disfavor to their customers. In the case of the sellers they were misadvertising their merchandise because they were not selling it in the normal way to which the people were used to and therefore either causing themselves a financial loss due to less buyers or causing the customer to buy something that they were not sure would fit them properly or if they truly like it or not. In the case of tailors the Tznuin would dirty up the clothes that they were sewing by putting it on the ground thus eventually degrading its quality. So in both of these cases acts of superficial piety were causing damage to society. I have to admit that my explanation of these two Mishnayot is novel and may even be somewhat forced. It is not used by the Rishonim (medieval authorities) all of whom explain the Tznuin to be more pious, more stringent people than the rest of the masses.

There is one other occurrence of the word Tznuin referring to a particular group of people in which it really seems that the word is meant to mean truly pious people. See Mishna Maaser Sheni 5:1. However I do not think that it is really in contradiction to this Tosefta. It is possible that the word was used both in a straight and in a sarcastic manner depending on the context.

It should be noted that Saul Lieberman in Tosefta Kifshuta explains that the whole issue with the Tznuin had nothing to do with the tithes, but had rather to do with their preferences regarding Tumah and Tahara (ritual purity). I do not see how his explanation fits in the context of the subject being discussed.

7. As long as the owner of the produce intends to sell the produce and not eat it himself, the produce that is piled in silos becomes obligated in all tithes once piled and nothing after that would be able to exempt it from the tithes. Therefore it does not make any sense that the Tznuin who presumably were farmers who intended to sell their produce would give the poor food that was already piled in the silos since they would be required to separate the tithes from it. Therefore it seems to me that the Tznuin would give them food that was still not piled in silos, but perhaps was still sitting outside next to the silos in baskets or some other vessels in which it was transported from the field. Since they would give the poor only a small amount which was only enough to eat on the way back to the city the poor were exempt from taking off the tithes from it, because produce that is given as a gift to someone else and is being transported from somewhere to the person’s who received it house is exempt from Maaserot and the person transporting it is allowed to eat it untithed. See Mishna Maaserot 1:5 and 2:2. He only has to take off Maaserot once he enters his house with the produce. Since the amount of food given was going to be eaten before the poor returned home back in the city they could eat it without taking off the tithes.

8. The Tosefta summarizes what happens to all produce originally left in the fields for the poor as a part of Leket, Shikcha, Peah and Olelot (incompletely formed grape clusters), but was not collected by them. It was already mentioned on a few occasions that all gifts to the poor except for Peah automatically belong to the poor regardless if the owner designates them as such or not, and even Peah technically belongs to the poor as soon as it was left in the field, just they cannot take it until the owner explicitly proclaims it to be Peah. See above Tosefta Peah 1:13, note 7, and 2:6, note 4. Therefore we might think that if the poor chose not to take them they would become Hefker (ownerless) and as a result anyone can take them. Therefore the Tosefta teaches us that the gifts not collected by the poor do not become Hefker, but rather revert back to the owner of the field. This seems to me is the true meaning of the Tosefta as I will explain below.

However, this law poses a general difficulty. Mishna Peah 8:1 explicitly states that after the poor people leave the fields all gifts to the poor that they have left behind them become Hefker and can be taken by anyone. The reason for this law is explained in Talmud Bavli (Bava Metzia 21b) that since the poor gave up on collecting whatever they left in the fields it becomes Hefker just like a lost or a stolen object becomes Hefker after the owner gave up on receiving it back. Our Tosefta seems to be in direct contradiction to the law stated in the Mishna. Talmud Yerushalmi (Peah 8:1, Daf 35a) resolves this contradiction by explaining that what the Tosefta means is that really whatever the poor people do not collect becomes Hefker and can be taken by anyone, but if it is not taken by anyone the owner is allowed to take it for himself and he does not have to leave it for the animals. The reason that this is not obvious is because since the owner originally had to declare Peah as something that belongs to the poor and not to him we might think that once it becomes the property of the poor the owner can never take it back, and therefore the Tosefta teaches us that indeed he is allowed to take it back.

I would like to suggest that the Yerushalmi’s explanation deviates from the original intent of the author of the Tosefta and is only given in order to resolve the apparent contradiction between the Mishna and the Tosefta as was an accepted way of resolving contradictions in an Oral Tradition. The Yerushalmi’s logic is also problematic, because once an object becomes Hefker anyone can claim it including the original owner. The history of ownership of this object does not make any difference to this, and therefore the fact that the owner of the field once upon a time declared Peah to belong to the poor would in no way impact his ability to claim it for himself now.

It seems to me that the Tosefta clearly argues on the Mishna and holds that all of the gifts not taken by the poor do not become Hefker and instead revert to the owner of the field. I would like to suggest that the reason for the Tosefta’s law is a special Rabbinical decree that was enacted in order to protect the owners of the fields in difficult financial conditions. I already explained earlier, in Tosefta Peah 2:17, note 4, that the financial situation of the farmers during the time of the Tosefta was much more difficult than that of the time of the Mishna. And therefore it would make sense that the Rabbis have enacted this law as a special protection for the owner who himself might be very poor barely making ends meet. So in order to protect him they decreed that whatever produce was left by the poor belongs to the owner and cannot be collected by anyone else. However, the Mishna states the default law that was in effect before this special decree of the Tosefta where by pure logic all produce left by the poor became Hefker. For some reason, the enactment of the Tosefta did not take wide effect and by the time the law was again discussed in Talmud Yerushalmi the Yerushalmi simply assumed the original ruling of the Mishna as the effective law and reinterpreted the Tosefta in a way that would not conflict with the Mishna.

I would like to mention that there is an alternative way of resolving the contradiction between the Mishna and the Tosefta besides what is mentioned in the Yerushalmi and my suggestion. The Rambam in Mishneh Torah (Hilchot Matnot Aniyim 1:11 and 1:13) resolves it by stating that the Tosefta is talking about a case where the poor people still did not leave the fields, as the case of the Mishna, but they simply decided that a particular part of the crops left in the field as the gifts to the poor does not interest them. At that point those crops that the poor do not want to take revert to the owner, since nothing at that point becomes Hefker yet. However, after the poor have finished collecting their gifts whatever is left in the field becomes Hefker and anyone can take it, as the Mishna says. The Radvaz, in his commentary on the Mishneh Torah (ibid.) clarifies how this case would take place in practice. How is the owner supposed to know that the poor are not interested in particular crops? May be the next group of poor people that will show up in his field later will be interested in them? The Radvaz resolves this problem by explaining this law that once the first group of the poor have said to the owner that they are not interested in this particular set of crops that was left for them as a gift the owner may immediately take it for himself and he does not have to wait to see if the next group of poor people who come will be interested in it or not. Although this explanation resolves well the contradiction I do not think that it was the original intent of the author of the Tosefta, because something that is so not obvious should have been stated explicitly.

Notes:

1. The Tosefta states a new law regarding gifts to the poor. It is not related to any Mishna.

2. Literally: the owner of the house.

3. The word כְּלִיבָה (Kliva), “box” or “container”, is an original Hebrew word which is a feminine form of the word כלוב (Kluv), meaning “cage” or “coop”. It seems that both of these words come from the root כלב (Kalav), which means “to stitch” or “twist together”. The reason that both of these words come from this root is because in ancient times most cages or containers were made by stitching or weaving branches together, usually reeds, into basket like containers. If the vessel had to be made waterproof, as in our case, then it would be covered with pitch or tree resin. It is also possible to weave a basket so tightly that it will be waterproof without a pitch or resin coating. There are variant spellings of the word Kliva, such as כליבא (Kliva) and כליכא (Klicha), however it seems to me that the spelling from the Vienna manuscript which I have quoted in the main text is the most correct spelling since it properly reflects the Hebrew origin of the word by having the letter ה (Heh) in the end and reflecting the root from which it comes from.

Water Basket from the 19th century made by Paiute Indians from Oregon. Oregon Historical Society Museum. Catalog Number: OHS Mus 73-126.9. Similar baskets were probably made in ancient Middle East as well.

4. It is obvious that the container has to have some produce in it which the owner gave the poor person as a gift in return for fetching him water, because if the container would be empty then the whole Tosefta would not make any sense. However, see below in the middle of note 5 where I propose a different explanation according to the Erfurt manuscript reading where the container would be indeed empty.

5. In the Erfurt manuscript the word “water” is missing. Due to this reading Cheshek Shlomo explains the Tosefta in a different fashion. He says that the owner gave the poor person a basket of produce as a gift, not as a reward for doing him a favor of fetching water, but rather because he felt bad for him that that particular poor person did not get to collect as much of the produce left as Leket, Shikcha and Peah, as other poor people did that day. According to this explanation the Tosefta is teaching us that even though the owner intended to give this produce to the poor person as a part of the official gifts to the poor that he was not able to collect himself it is still not considered to be a gift to the poor, which is exempt from tithes, but rather regular produce, which is obligated in tithes. The reason that this produce is not considered to be a gift to the poor is because all gifts to the poor have to be left in the field by the farmer to be collected by the poor themselves and not proactively collected by him and given to the poor, as I already explained earlier on a few occasions. This concept is implied in the Torah (see Vayikra 19:9 and 23:22) where the Torah uses the expression תַּעֲזֹב אֹתָם (Taazov Otam), “leave them”, meaning that the gifts to the poor should be left in the field for the poor to collect themselves. See above Tosefta Peah 2:13, note 12. However, Cheshek Shlomo’s explanation still has a linguistic problem, because if it is not talking about water, but rather simply a basket of produce, it would be much better to skip the words “to fill it up for him”, because it implies that the poor person had to go and fill up the basket with something for the owner.

I would like to propose another explanation according to the Erfurt manuscript reading which skips the word “water” that would resolve this linguistic problem. The phrase לְמַלּוֹת לוֹ (Lemalot lo) could also be translated as “to fill it up for himself”, meaning for the poor person, and not “for him” meaning the owner. Then the case is that the owner gave the poor person an empty basket and told him that he is allowed to go into the field and fill up the basket from the regular crops, which belong to the owner, since there were no official Leket, Shikcha and Peah crops left in the field, because all of them were already taken by other poor people. Since these crops are regular crops that belong to the owner this particular present that the owner gave him is considered to be regular produce and is therefore obligated in tithes.

According to the reading of the Vienna manuscript which has the word “water” in it the Tosefta’s point would be different. The Tosefta is teaching us that we do not suspect the owner to have taken this produce from produce which was already designated in the field as Leket, Shikcha, or Peah and belongs to the poor people, but rather the owner took it from his personal produce and therefore the poor person is obligated to separate tithes from it as from any regular produce. Another possible interpretation would be that since in this case the owner literally made a gift to the poor person as a thanks for fetching him water, the poor person might think that this gift qualifies to be an official “gift to the poor”, such as Leket, Shikcha or Peah, and therefore the Tosefta has to teach us that it is not so. Since both explanations are plausible I have decided to keep the word “water” in the main text as it appears in the Vienna manuscript.

6. As was already explained many times, all gifts to the poor are exempt from all tithes. See Mishna Chala 1:3. Since this produce is not considered to be in the special category of “gifts to the poor” the poor person would have to separate all tithes from it. For an explanation of what the different tithes are see above Tosefta Peah 1:6, note 7.

Notes:

1. Mishna Peah 4:11 states that grain that was collected by ants and brought by them inside their holes is sometimes considered to be Leket and sometimes not. The Mishna clarifies that it depends on whether these holes are located in the area where above ground the grain is still standing or if it has been already harvested. If the holes are in the area where the grain is still standing then everything inside those holes belongs to the owner just like the standing grain around those holes, but if the holes are in the harvested area then the grain inside the ant holes is considered to be Leket just like the grain that is left lying in that area of the field above ground. Our Tosefta argues on the Mishna in terms of the conditions of the locations of these holes. The Tosefta argues that it does not matter in which area of the field the holes are located, and by default we always assume that the owner wants to keep the grain inside ant holes for himself, unless he specifically said that he does not care about it and anyone who wants can take it.

It may seem really strange to a person from a developed country in the 21st century why it would be important to discuss the legality of grain inside ant holes. Why would anyone care about grain that was taken by ants? It is probably a small and insignificant amount. In order to dispel this question I would like explain right away the living conditions of the 3rd century CE when the Tosefta was written. In the 3rd century CE the financial situation of the Jews of the Land of Israel was very dire. There have been a few very harsh famines and at the same time very heavy taxation by the Roman authorities. It was so bad that many farmers were forced to abandon their fields and move to other areas of the country or even outside it where the taxation was not as heavy, because they simply could not produce enough grain to pay the taxes, not even mentioning making a profit from the grain sales. Many farmers abandoned their fields and farming completely and took on other jobs. In such an environment every farmer was very meticulous about keeping every small bit of his harvest, even if that meant that he had to dig up ant holes and take grain from there. Also it needs to be pointed out that the amount of grain inside ant holes is not that little as I will explain in note 3 below. For a detailed analysis of the living and financial conditions of the 3rd century CE Land of Israel and proofs and sources for my summary see Daniel Sperber, “Roman Palestine, 200-400, The Land.”, Bar-Ilan University, 1978, where he discusses all of the details of life that I have mentioned.

2. As I already mentioned above in Tosefta Peah 1:10, note 17, ants that are mentioned in the Tosefta are harvester ants of the genus Messor, which are the most common ants in Israel. These ants’ main food source is grain of which they can collect vast amounts.

3. A single Messor harvester ants’ colony can take up a very large area of the field and may contain many entrances above ground spaced several meters apart from each other. Within such a colony there could be any number of ant trails but research (Claire Detrain, Olivier Tasse, “Seed drops and caches by the harvester ant Messor barbarus: do they contribute to seed dispersal in Mediterranean grasslands?”, Naturwissenschaften, 2000, 87:373–376) has shown there could be even 75 such trails within one colony. Each trail, up to 30 meters in length, can last for an average of 5 days after which the ants stop going on it and make a new trail. While the trail exists it has been estimated that ants carry on it about 50,000 seeds. Based on this research we can extrapolate a rough estimate of how much grain can the farmer retrieve by digging up a Messor harvester ant nest that was collecting grain for 1 month from a field assuming that the ants did not eat any of the grain while they were collecting it.

50,000 seeds per trail / 5 days = 10,000 seeds per day per trail

75 trails * 10,000 seeds per day per trail = 750,000 seeds per day per nest

750,000 seeds per day per nest * 30 days = 22,500,000 seeds

One seed of wheat weighs approximately 50 mg (0.00005 kg)

22,500,000 seeds *0.00005 kg = 1125 kg

That is over 1 ton of wheat seeds, which is a huge number. Obviously the farmer would not be able to retrieve all of it, but even if he succeeds in retrieving 10% (roughly 100 kg in our example) of the grain collected by the ants he can gain a very significant amount of grain that would be otherwise lost. You may wonder how significant a 100 kg of wheat is. According to Food and Agriculture Organization of the United Nations (FAO) the supply quantity of wheat in Israel in 2007 was 113.84 kg/capita/year.(http://faostat.fao.org/site/609/DesktopDefault.aspx?PageID=609#ancor, accessed on 06/10/2010) In other words, 100 kg of wheat can feed one person for a whole year. In poor conditions of the 3rd century CE Land of Israel such an amount of grain could mean the difference between eating well and starving.

Harvester ants’ hole.

4. In other words, according to the Tosefta the farmer is entitled to keep all of the grain collected by ants, unless he specifically says otherwise as will be stated in the next statement of the Tosefta. It seems to me that this was a special Rabbinical enactment that was made to protect the farmers from starving. As I already mentioned in note 1 the Mishna argues on the Tosefta and says that this would depend on where the ant holes which the farmer wants to dig up are located. I would like to suggest that there is a very specific reason why the Tosefta argues on the Mishna. The Mishna was written about 50 years earlier than the Tosefta, roughly in the year 220 CE. At that time the living conditions in the Land of Israel were better than in the second half of the 3rd century CE. Sometimes in the middle of the 3rd century CE the Rabbis changed the law from that of the Mishna to that of the Tosefta. The reason they passed this new enactment is clearly to protect the struggling farmers. This indicates that ants’ seeds were originally considered to be Leket only by a Rabbinical decree and not by Torah law. Clearly the Torah only obligated the stalks dropped by the farmers as Leket and not something that was taken by ants. A further proof that the law of the Tosefta was passed after that of the Mishna is that in the Mishna the law is disputed by Rebbi Meir, where as in the Tosefta it is disputed by Rebbi Meir’s student, Rebbi Shimon Ben Elazar. Rebbi Meir flourished during the first half of 2nd century CE, where as Rebbi Shimon Ben Elazar was active during the second half of the 2nd century CE when the conditions started to rapidly deteriorate. This shows that the discussion of this law took place sometimes during the end of the 2nd century CE, but it was not cemented into law by the Tosefta until the end of the 3rd century when this law was critical to protect the farmers. For a detailed analysis of how the living conditions of the Land of Israel deteriorated as the 2nd and 3rd centuries CE went on, see Daniel Sperber, “Roman Palestine, 200-400, The Land.”, Bar-Ilan University, 1978.

5. It seems to me that the reason the Tosefta says that the poor people do not violate the prohibition of theft in the case when the farmer declared the ants’ seeds ownerless, as opposed to saying it belongs to the poor people, was because it wants to emphasize that no matter what these seeds are not considered to be Leket. They either belong to the owner, or the owner made them ownerless and now they can be claimed by anyone. But they do not belong specifically to the poor people as a gift to the poor, because ants’ seeds are not considered by the Tosefta to be the same as a gift to the poor, forgotten or dropped by the owner, as was held originally, as recorded in the Mishna.

6. There is a great deal of controversy in the commentators on the Tosefta as to what the correct reading here should be. There are at least four possible readings in Rebbi Shimon Ben Elazar’s statement. I have quoted in the main text the reading from the Vienna manuscript which says נְזִיקִין (Nezikin), “damaged”. In the Erfurt manuscript the reading is נקררן גזוזין (Nikraran Gezuzin), which is not clear what the words mean here exactly. In the printed editions of the Tosefta the reading is פיקדון (Pikadon), “deposit”. And finally the Nuschaot Ktav Yad in the Vilna Talmud Bavli edition of the Tosefta quotes a forth reading which says נקברין גזוזין (Nikbarin Gezuzin), “buried and sheared”, which is also not clear in its meaning. Due to the obscurity of Rebbi Shimon Ben Elazar’s statement every commentator on the Tosefta provided his own interpretation of what he thinks it means and tried to force various words into it. Minchat Bikkurim went as far as to say that Rebbi Shimon Ben Elazar’s whole statement does not make any sense and should be deleted. However none of the commentators prefer the reading of the Vienna manuscript for unspecified reasons and do not discuss it. I have chosen that reading, because it makes most sense to me in the Tosefta and it also does not require forceful conjugation and interpretation of the actual words in this statement. The text flows freely with the word Nezikin in it, as long as it is placed in proper context.

Notes:

1. Due to the vague language of this Tosefta it can possibly be related to one of two different Mishnayot, Mishna Peah 4:10 and 5:2. Based on the order of the Toseftot it should be related to Mishna Peah 4:10, because the next Tosefta is clearly related to Mishna Peah 4:11. However based on the wording of this Tosefta it does not really match the language of Mishna Peah 4:10 and instead more fits with the Mishna Peah 5:2. Since the language of our Tosefta is really vague it can be interpreted in a number of ways and can be made to fit with either of the Mishnayot. I have decided to explain this Tosefta in a way that fits its language best without trying to work it out with the expressions of the Mishna on which it comments.

Mishna Peah 4:10 states that classification of stalks as Leket depends on the way the stalks were harvested. The Mishna is very vague in its classification and there are multiple of ways of understanding it, but in general the classification of stalks as Leket depends on whether they were harvested in a normal fashion which indicates that the owner intended to harvest them in that way as they accidentally were dropped. However, if the stalks were harvested in an abnormal fashion, such as with the back of a sickle instead of with its cutting part then the dropped stalks are not considered to be Leket, because we assume that the owner did not mean to cut them that way and therefore they were not considered to be properly harvested, which makes them still belong to the owner and they are not Leket. This Mishna does not say anything about where the stalks have landed physically in the field after they were cut off.

Mishna Peah 5:2 states that if there is a single standing stalk in the harvested area then its designation as Leket depends on how close it is to the remaining standing crops that have not been harvested yet. If it is close enough to the unharvested standing crops that it can be cut off with a sickle in one swing together with some of the standing crops then it belongs to the owner and is not considered to be Leket. However, if it is further away from the unharvested standing crops that it can only be cut off by itself without any other crops then it belongs to the poor people and is considered to be Leket.

According to my explanation of this Tosefta, the Tosefta states the rules for the classification of fallen stalks as Leket based on the location of the stalk in the field after the harvest relative to the areas which have been harvested already and have not been harvested yet. All three cases in the Tosefta are talking about a stalk which has been accidentally bypassed by the farmer during the harvest, either as a stalk dropped on the ground during the harvest or a stalk that was simply left standing by itself, because the farmer missed it with his sickle as he was cutting the crops.

Partially harvested wheat. Photo: Lars Plougmann. Notice the still standing unharvested crops in the left upper corner of the image and a harvested area on the bottom and the right sides if the image. The three cases of the Tosefta discuss stalks in these two areas.

2. If this stalk is located among the still standing crops that have not been harvested yet then the only way for it to be identifiable is Leket is if it is detached and lying on the ground among the standing stalks. If this stalk is still attached to the ground then it is simply a part of the unharvested standing stalks and obviously belongs to the owner.

3. The reason that a fallen stalk in the unharvested area is not considered to be Leket is because we assume that it did not fall there due to the farmer harvesting the crops in a neighboring area, but rather for some other reason. Fallen stalks can be classified as Leket only if they fell as a result of the farmer harvesting the crops, however if they fell for any other reason they are not Leket and still belong to the owner.

4. It is possible to explain this particular case in two ways, either that it is referring to a fallen stalk lying on the ground or to a standing stalk still attached to the ground which was accidentally kipped over by the farmer. The first possibility is that the stalk was cut off by the farmer, fell on the ground and is now lying in the harvested area where there are no more crops. This by definition is the classic case of Leket to which the Torah refers, and therefore it is my humble opinion that there is no need for the Tosefta to state this case since it is directly meant by the Torah in its definition of Leket and is obvious to everyone. Therefore it seems to me that the Tosefta is referring to the other possibility where the stalk was accidentally missed by the farmer and it is still standing attached to the ground. Since the stalk was technically never cut off we might think that it still belongs to the owner and is not Leket. Therefore the Tosefta is coming to teach us that since this stalk ended up in the harvested area as a result of the harvesting process it is considered to be Leket and therefore belongs to the poor people.

If we follow this explanation then the Tosefta is arguing on Mishna Peah 5:2. The Mishna says that such a stalk would be considered Leket only if it is far away from the still standing crops that it cannot be cut off together with them, but if it is close then it is not considered to be Leket. However the Tosefta does not make such a differentiation and implies that regardless of this stalks location relative to the unharvested area it is still considered to be Leket. To me this seems to be even a greater proof why the Tosefta specifically had to mention this case. Obviously it wanted to emphasize its different position on this law from the Mishna. Saul Lieberman in Tosefta Kifshuta points out a problem with this explanation. Most commentators on the Mishna consider this particular case to be a case of Shikcha (forgotten sheaves) and not of Leket, because the stalk was literally forgotten standing in the field as opposed to being dropped. However our Tosefta in its last statement implies that it is talking about Leket and not Shikcha. However, I am not sure that this is a real issue, because the Tosefta states three different cases and it specifically does not say what the first two cases are cases of Shikcha or Leket. Only the last case is clearly a case of Leket. It is possible that the Tosefta included a case of Shikcha among two cases of Leket, because of the similar situation in which they occurred. It is also possible that the Tosefta does not agree with this explanation that this particular case is a case of Shikcha and instead it holds that this is a case of Leket since it was a stalk that was bypassed accidentally as a result of the harvesting process, as opposed to Shikcha which generally refers to crops that already have been harvested, but not yet brought into the silo from the field and were forgotten by the farmer in the field.

If these problems presented by Lieberman bother you then you can always fall back on the basic explanation that the Tosefta is merely talking about the classic case of Leket where the fallen stalk simply fell in the harvested area and is therefore Leket. In this case the Tosefta would be in agreement with the Mishna regarding the case of a single standing stalk, since it is not talking about that case at all. However, to me that explanation is inadequate for the reasons that I already mentioned.

5. The Tosefta uses the expression “behind him” to emphasize that such a stalk can be noticed by the farmer as he cuts his last batch of crops and then stops for the day leaving the rest of the crops still standing in the field, thus unharvested crops being in front of him and harvested area being behind him. The Tosefta emphasizes that the farmer should take notice and should make sure that the poor people would not be confused by such a stalk thinking that maybe it still belongs to the owner, but rather the farmer should pick the stalk up and throw it in the harvested area so that it would be clear to the poor people collecting Leket that this stalk is left there for them as Leket.

6. Since a stalk in the unharvested area belongs to the owner and a stalk in the harvested area belongs to the poor people, a stalk which lying half way in each zone is technically in a doubtful situation and has a special status of doubtfully Leket.

7. The Tosefta states a rule that any case in which a stalk has the special status of being doubtfully Leket, we always consider it as if it is really Leket and therefore it has to be left for the poor. Talmud Yerushalmi (Peah 4:7, Daf 24b) lists three possible reasons for this rule, all of which are based on derivations from verses from the Tanach, which are obviously not real derivations, but rather Asmachtot (references from the Tanach for a Rabbinical law). The Rabbis had enacted such a rule in order to make sure that the farmers respect the poor and properly treat them, especially since the amount of crops in question is really miniscule.

In Mishna Peah 4:11 this rule that what is doubtfully Leket is considered to be actual Leket is stated in the name of Rebbi Meir. Talmud Yerushalmi (Peah 4:7, Daf 24a-b) in its discussion of Rebbi Meir’s opinion implies that the Chachamim (Sages) argue on him and do not hold of this rule, leaving crops in this doubtful status as such. However, the Tosefta by quoting this rule anonymously implies that this is a universal opinion accepted by everyone and therefore not being disputed.

Notes:

1. Mishna Peah 4:10 defines in anonymous statement that Leket is something that is left over in the field as a result of harvesting. Our Tosefta clarifies that the statement in the Mishna is really the opinion of Rebbi Yossi, but there is another opinion which includes also the produce that was left in the field is a result of handpicking.It was already mentioned above in Tosefta Peah 1:14 that the obligation of all of the gifts to the poor depends on the manner of harvesting the produce and if the farmer harvested them in an abnormal manner then the produce is exempt from all of the gifts to the poor. In the case of grain in order for it to be obligated in the gifts to the poor it has to be reaped with a tool and not plucked out of the ground by hand. Our Tosefta does not mention whether it is specifically talking about grain that is normally reaped or if it is also talking about other types of produce, such as beans, which are also obligated in Leket (see note 6 below), but are normally picked by hand. If we would assume that our Tosefta is only talking about grain then the opinion of the Tanna Kama would be in contradiction with Tosefta Peah 1:14, which said that grain which was plucked by hand is exempt from Leket, because that is not the normal manner in which it should be harvested. Only the opinion of Rebbi Yossi would be in agreement with that Tosefta. However if we were to assume that this Tosefta is not specifically referring to grain, but to all produce which is obligated in Leket, including things that are normally picked by hand, then it is possible to explain it in a way that both the Tanna Kama and Rebbi Yossi agree with the Tosefta Peah 1:14 and their argument has nothing to do with the normal manner of harvesting, but rather with the derivation from the verse mentioned in this Tosefta and if it should be taken literally or not. According to this explanation, both of them agree that if produce was not harvested in the normal manner, such as if grain was plucked out of the ground by hand, then it is exempt from all of the gifts to the poor. However they argue whether produce that is normally picked by hand is obligated in Leket or not. The Tanna Kama holds that it is, but Rebbi Yossi holds that only produce that is harvested with a tool, such as grain, is obligated in Leket, but not produce that is normally picked by hand, such as fruit or beans. Since the verse which Rebbi Yossi mentions and learns literally is only talking about Leket then their argument is only applicable to Leket and not to other gifts to the poor.I have chosen to explain this Tosefta according to the last explanation in order to prevent the possible contradiction. I would like to immediately point out that it is not the way it is explained by many commentators, such as Minchat Yitzchak and Chazon Yechezkel, who explain it based on the way Talmud Bavli (Chulin 137a) explains a similar Beraita. Talmud Bavli’s explanation of that Beraita cannot be applied to this Tosefta, because that Beraita is radically different in its wording and opinions from this Tosefta as was already pointed out by Higayon Aryeh and Tosefta Kifshuta.
2. For a description of what Leket is see above Tosefta Peah 1:13, note 5.
3. Although generally the Hebrew word קצירה (Ketzira) is translated as “harvesting”, it literally means “reaping”. Reaping is the step of the actual harvesting where the stocks of grain are cutoff using a tool, such as scythe or a sickle. The normal process of reaping grain is only done using such a tool. The Tosefta at this point is specifically referring to reaping with a tool.
4. Detachment refers to harvesting any produce by hand by ripping it off the stalk. As I already explained above in note 1, the Tanna Kama holds that when the Torah says וְלֶקֶט קְצִירְךָ (literally: the fallen [stalks] of your reaping), it means “the fallen stalks of your harvest”. The word קְצִירְךָ (Ketzircha) here means “your harvest” in a general sense without a specific reference to the reaping of grain, and therefore it includes in the commandment of Leket produce that is normally picked by hand, as well.
   Sickle.

   
   Scythe.

5. Rebbi Yossi chooses to translate the word קְצִירְךָ (Ketzircha) as “your reaping”, as opposed to “your harvest”, and therefore the verse is only referring to produce which reaped, such as grain. According to him any produce that is not normally reaped would be exempt from Leket.
6. My whole explanation of this Tosefta was built on the assumption that other produce, besides grain is obligated in Leket. The problem with this assumption is that there is no explicit source for it from Talmudic literature. It was already mentioned above in Tosefta Peah 2:13 that Leket applies to grain, but does not apply to fruit. However the Tosefta left open the question whether Leket applies to other things, which are not fruit and are not grain, such as legumes and vegetables. From the Rishonim (medieval authorities) it is implied that Leket applies to legumes as well. For example, see Sefer Hachinuch 218, Smag (Lo Taaseh 284), and the Mishneh Torah of the Rambam (Hilchot Matnot Aniyim 4:2) where he explicitly says that Leket applies to other types of produce besides grain which are normally picked by hand. Aruch Hashulchan Haatid (Hilchot Peah 1:7) discusses this issue and concludes that it is basically an assumption of all of the early and late authorities based on scriptural references, but there is no explicit Talmudic source that clearly states that Leket applies to anything else besides grain. He mentions that Sifra (Kedoshim, Parshitta 1, Perek 1) states that legumes are compared to grain and therefore should have the same law apply to them with regard to all gifts to the poor, however a careful analysis of the Sifra shows that it is only talking about Peah and not about Leket. Some commentators (see Ohr Pnei Melech on the Mishneh Torah of the Rambam (Hilchot Matnot Aniyim 4:2) and Smag (Lo Taaseh 284)) suggest that the source for this law is Mishna Peah 4:10, which is talking about Leket and says that if a person “picked by hand”, which they say is not referring to grain, but rather to another type of produce which is normally picked by hand. This suggestions is however very difficult to accept, because the Mishna itself says that if a person picked it by hand then it is not Leket and still belongs to the owner, implying that it is talking about grain and the reason that it is not Leket, because it was not harvested in the normal manner of harvesting grain. Unfortunately, I was not able to come up with a solid source for this law and therefore I admit that my whole explanation of this Tosefta hangs by a thread and could be easily refuted.

Notes:

1. Since the previous Tosefta mentioned the concept of confiscation of gifts to the poor and also mentioned gifts given to Kohanim and Leviim, it states a new law regarding the confiscation of these gifts. It is not related to any Mishna. For an explanation of various types of gifts that are discussed in this Tosefta see notes 16 and 17 on the previous Tosefta.
2. “We” is meant here as the big we referring to the Bet Din (court) who would enforce this law.
3. A Kohen is obligated to give all of the priestly gifts just like a regular Jew, meaning that he must separate them from the regular produce and treat them in the same manner as all of the gifts are normally treated, such as that Terumah becomes holy and has to be eaten in a state of purity. However, in some cases the Kohen is allowed to keep these priestly gifts for himself instead of giving them to another Kohen. For example, if the Kohen buys produce from a farmer before the produce has been piled, meaning that it did not become obligated yet in Terumot and Maaserot, he is allowed to keep the Terumah for himself and not give it to another Kohen. See Mishna Peah 1:6. He still has to give Maaser Rishon to the Levi, since that gift was not meant for the Kohanim at all. However, if the produce was already piled by the farmer and then the Kohen bought it, since the produce already became obligated in Terumot and Maaserot the Kohen is not allowed to keep the Terumah for himself, but rather has to give it to another Kohen. Talmud Yerushalmi (Peah 1:5, Daf 9b) explains that really this law is a special Rabbinical enactment and not a Torah law. By Torah law the Kohen is allowed to keep the Terumah for himself after he separates it and the Levi is allowed to keep Maaser Rishon after he separates it. However, the Rabbis enacted a special fine for the Kohanim and Leviim and prohibited them from keeping the Terumah and Maaser Rishon, respectively, after the produce has become obligated in them. The reason they enacted such a fine is because they did not want the Kohanim and the Leviim buying all of the produce directly from farmers as Tevel (untithed produce), which obviously had the same price as tithed produce (i.e. the farmer did not charge for the percentage that had to be given away as a tithe) and then keeping the Terumah and Maaser Rishon for themselves, thus making on it a huge profit in comparison to regular Jews who paid the same amount of money for this produce, but had to give a significant portion of it away to Kohanim and Leviim.
   
   Our Tosefta discusses a case where the Kohen or the Levi decided to pocket the Terumah or Maaser Rishon for themselves, respectively, despite this Rabbinical enactment which required them to give it away. The Tosefta says that since by Torah law they are allowed to keep it for themselves, in the case where they did not follow the Rabbinical enactment the court does not force them to give it to another Kohen or Levi, but rather allows them to keep it. The reason for this would be that the Rabbis did not want to enforce their enactment to such an extreme that would require confrontation between the Kohanim, Leviim and the courts. They reasoned that since most Kohanim and Leviim would comply with the new law it would be sufficient to provide a fair market for the Israelite (Yisraelim) farmers who had to give away these gifts to the Kohanim and Leviim.
   
   From the statement in Talmud Yerushalmi which specifically refers to produce it can be implied that this Rabbinical enactment was only enacted for the gifts that apply to produce such as Terumah and Maaser Rishon, but not to other gifts, which come from animals, such as Reishit Hagez (first sheared wool) and the three Matanot (gifts), the foreleg, the cheeks and the forth stomach, all of which the Kohen would be allowed to keep for himself even by Rabbinical law. I do admit that it is not clear and therefore it is possible that this Rabbinical enactment applies to all gifts and not just the ones from produce.
   
   Talmud Bavli (Chulin 131b) has a different spin on this law based on a Beraita that it quotes similar to our Tosefta, which combines the text from the previous Tosefta and this Tosefta into a single statement, and specifically says that this law is talking about the three animal Matanot, that if they are kept by the Kohen for himself we do not confiscate them from him to give to another Kohen. Obviously according to that Beraita it is implied that the Torah somehow demands that these gifts need to be given to another person and not just kept by the owner, even if he is entitled to getting them himself, since there is no Rabbinical decree regarding the animal priestly gifts. However I do not think that our Tosefta is of the same opinion and therefore I have explained it based on the Yerushalmi that I quoted.
4. Obviously if the Levi decided to also pocket one of the priestly gifts that have to be given to a Kohen, such as Terumah or Terumat Maaser the court forces the Levi to give them away, since even by Torah law he is not allowed to keep them, but rather has to give them to a Kohen.It should be noted that Ezra passed a decree in which he punished the Leviim for not returning to the Land of Israel with him and instead staying in Babylon, by taking away their gift of Maaser Rishon and giving it to the Kohanim instead. See Talmud Bavli (Yevamot 86b) and Rashi (Chulin 131b, Dekansinhu Ezra) for historical sources of this enactment. It is not clear if the law of this Tosefta would also apply to a Levi who decided to keep the Maaser Rishon for himself according to Torah law instead of giving it to a Kohen in violation of Ezra’s decree. Talmud Bavli (Chulin 131b) discusses this issue, however the discussion is based on a lot of different material and it is not really possible to tell from it what would be the opinion of this Tosefta. I would like to suggest that since Ezra’s decree is obviously Rabbinical and our Tosefta already voiced that we do not force a Kohen or a Levi to give up their gift due to a Rabbinical decree it would agree that we do not force a Levi to give up his Maaser Rishon to the Kohen, but rather let him keep it in accordance with the Torah law.
   
   Finally, there is an argument in two Beraitot between three Tannaim, Rebbi Akiva, Rebbi Meir and Rebbi Elazar Ben Azaryah, whether the Levite gift, Maaser Rishon, can also be given to a Kohen by Torah law, since the Torah calls Kohanim, “Leviim”, on many occasions. See Talmud Bavli (Yevamot 86a-b). Rebbi Akiva and Rebbi Meir hold that Maaser Rishon can only be given to a Levi and not a Kohen, but Rebbi Elazar Ben Azaryah holds that it can be even given to a Kohen. These Beraitot are only quoted by Talmud Bavli and do not appear in the Tosefta or Talmud Yerushalmi, which may suggest that they were taught only in Babylonian schools. We do not know which opinion our Tosefta holds like although it is most probable that it holds that Maaser Rishon can only be given to a Levi and not a Kohen, since that is the prevalent opinion throughout Talmudic literature and the Tosefta was not even aware of the argument on this subject, since it was not taught in schools of the Land of Israel. Either way, the rule of the Tosefta whether Maaser Rishon can be taken away from a Kohen would depend on this argument, since it can only be taken away if it belongs exclusively to the Levi by Torah law.
5. I would like to point out that some commentators on the Tosefta explain this Tosefta in the same way that the Talmud Bavli (Chulin 131b) explains a set of similar Beraitot that it quotes. For example, see Chasdei David and Minchat Bikkurim on this Tosefta. According to that explanation the Tosefta is specifically talking about the gift of Reishit Hagez and not other gifts as the Gemara (ibid.) concludes. Without going into too much detail I do not think that that explanation in the Tosefta is correct, because the Gemara (ibid.) is not quoting our Tosefta but rather a different Beraita. Also the Gemara forces all kinds of cases on that Beraita in order to avoid various questions on it. This Tosefta does not have to conform to the Gemara’s interpretation and can be explained in a much more generic fashion, as I have done above.

Notes:

1. The first part of the Tosefta outlines all of the different gifts to the poor as they apply to different types of crops. It is not related to any Mishna. The second part of the Tosefta regarding favoritism is related to Mishna Peah 4:9 which quotes an argument between Rebbi Eliezer and the Chachamim (Sages) regarding if the owner of the field is able to set aside Peah for a particular poor person or if he must give it to the first poor person who comes to him. This Tosefta expands on that case and follows the opinion of the Chachamim who hold that Peah must be given to the first poor person who comes to collect it.
2. For the definition and explanation of Peret see above Tosefta Peah 1:13, note 5. The Torah explicitly states that Peret applies only in a vineyard. See Vayikra 19:10.
3. For the definition and explanation of Shikcha see above Tosefta Peah 1:13, note 6. Since a grapevine is a tree Shikcha applies to it in the same way as it applies to all fruit trees. For the details of how Shikcha is defined by trees see note 9 below. Talmud Bavli (Chulin 131a) states that Shikcha by a grapevine is learned out from an extra word אַחֲרֶיךָ, “after yourself”, in the verse in the Torah by Olelot (Devarim 24:21), however that seems to be a superfluous derivation, since Peah equally applies to all trees, as the Tosefta states.
4. Since a grapevine is a tree Peah applies to it in the same way as it applies to all fruit trees. For the details of how Peah is defined by trees see note 10 below. Talmud Bavli (Chulin 131a) states that Peah by a grapevine is learned out from a Gezeira Shavah (Derivation by Equal Decree) from the word אַחֲרֶיךָ, “after yourself”, between the verses of olives (Devarim 24:20) and grapes (Devarim 24:21). However, that seems to be a superfluous derivation, since Peah equally applies to all trees, as the Tosefta states. See Tosafot (Chulin 131a, Gamar) who points out that this particular Gezeira Shavah seems to be very problematic for various reasons. For a description of how a Gezeira Shavah works in general see Tosefta Berachot 6:2, note 5.
5. For the definition and explanation of Olelot see above Tosefta Peah 1:13, note 7. The Torah explicitly states that Olelot apply only in a vineyard. See Vayikra 19:10 and Devarim 24:21.
6. To an untrained eye, or someone reading the translation of the Torah and not the original, it does not seem to explicitly state that Leket applies only to grain. See Vayikra 19:9 and 23:22. All the Torah there says is וְלֶקֶט קְצִירְךָ לֹא תְלַקֵּט, “and the fallen [stalks] of your harvest you should not pick up”. However, the Hebrew word קציר, (Ketzir) does not just mean the harvest of anything, but specifically refers to grain. Hence the verse explicitly says that Leket applies only to grain and not to anything else.
7. The Torah explicitly states that Shikcha applies to grain as implied by the word קְצִירְךָ, “your harvest”, as I already explained in the previous note. See Devarim 24:19. There are two possible ways how Shikcha can occur by grain. Either the owner can forget actual bundles of already cut grain lying in the field, which is the classic case of Shikcha, or the owner can forget to harvest some of his crops leaving them still standing in the field after the harvest. In the latter case the way it is noticeable that these standing stalks are Shikcha and not Peah is because Peah would generally be left at the end of the field where the farmer finished harvesting the whole field, as was already explained above in Tosefta Peah 1:5, where as Shikcha would be left in the middle of the field where the farmer simply forgot to harvest particular stalks of grain. The law of Shikcha applying to standing stalks is not mentioned explicitly in the Torah. There are a few possible sources for it. The Sifri (Ki Teitze 283) learns it out from a Kal Vechomer (derivation from minor to major) from the Torah law of Shikcha with regard to forgotten sheaves. The Kal Vechomer goes as follows. Since Shikcha applies to sheaves, which are heavy and difficult to carry, as explicitly stated by the Torah (Devarim 24:19-21), then for sure it should apply to individual standing stalks which are much lighter and easier for the poor person to carry away than big heavy sheaves. A second possible source is implied by Talmud Yerushalmi (Peah 4:4, Daf 22a), as explained by Rash Sirillio (ibid, Veshachachta Omer). The Torah says by Shikcha (Devarim 24:19) as follows:

   כִּי תִקְצֹר קְצִירְךָ בְשָׂדֶךָ וְשָׁכַחְתָּ עֹמֶר בַּשָּׂדֶה …

   When you will harvest your harvest in your field and you will forget a sheave in the field …

   The verse repeats the word “field” twice, even though the second time seems to be superfluous. The Torah could have easily written “When you will harvest your harvest in your field and you will forget a sheave …” without saying again “in the field”. From this extra wording the Yerushalmi implies that the law of Shikcha applies not only to sheaves, but also to standing crops. In other words, whatever is forgotten in the field is considered to be Shikcha, whether it is sheaves or just standing crops.

   Since by forgotten sheaves there is a clearly defined upper limit of three sheaves that the owner is allowed to go back and take for himself, it makes sense that there should be an upper limit for the amount of forgotten standing stalks above which the owner should be allowed to go back and cut them off for himself. However, there is no clear definition of what that maximum amount is. Mishna Peah 6:7 seems to imply that the upper limit for Shikcha of standing stalks is two Seahs. Seah is a measure of volume, equal to 6 Kavs. Since one Kav is equal to roughly 0.5 gallons, 6 Kavs roughly equal to 3 gallons. Therefore 2 Seahs is approximately 6 gallons (22.7 liters). The reason for this upper limit is explained in the Sifri (ibid.) and Talmud Yerushalmi (Peah 6:5, Daf 30a). The Torah says by Shikcha (Devarim 24:19), לֹא תָשׁוּב לְקַחְתּוֹ, “you should not go back to take it”, implying that Shikcha needs to be able to be carried away by one person and the amount of 2 Seahs is simply too big for that. Although this reason is stated by the upper limit of the size of an individual sheave to which Shikcha applies, it seems to be the same for the standing crops, the idea being that if the poor person would cut them off he needs to be able to carry them away in one shot. It is not clear from the Mishna how to measure this volume of standing stalks. Should it be measured before the grain is cut, which would be a much smaller amount or should it be measured after the grain is cut and bundled, which would results in a much larger amount since the in a sheave the stalks are pressed together? This issue is up for discussion. The Rambam (Commentary on Mishna Peah 6:7) seems to imply that this measurement of two Seahs applies to stalks after they are cut off and piled and not while they are standing. However, this is a difficult opinion to accept, because the owner needs to decide whether to leave these stalks standing as Shikcha or cut them off for himself and he needs to measure them while they are still attached to the ground and not after they are cut off and piled.

8. The Torah explicitly states that Peah applies to grain as implied by the word קְצִיר, “harvest”, as I already explained in note 6. See Vayikra 19:9 and 23:22.
9. Talmud Bavli (Chulin 131b) says that the source for this law, that Peah and Shikcha apply to all fruit trees, is the following verse. The Torah says (Devarim 24:20):

   כִּי תַחְבֹּט זֵיתְךָ, לֹא תְפַאֵר אַחֲרֶיךָ, לַגֵּר לַיָּתוֹם וְלָאַלְמָנָה, יִהְיֶה.

   When you beat your olive tree, do not remove all of its beauty after yourself; it should remain for the convert, the orphan, and the widow.

   It is obvious from the verse that it is referring to the fact that the farmer should not beat the olive tree down to the last olive, but rather should leave some olives on the tree for the poor people to take. However, the expression “do not remove all of its beauty after yourself” is vague and it is not clear to which type of a gift to the poor it is referring to, Peah, Shikcha or something else. Talmud Bavli (Chulin 131b) states that the word אַחֲרֶיךָ (Acharecha), “after yourself”, is referring specifically to Shikcha, but it does not explain why. This is difficult to understand, because the expression “after yourself” does not imply to be something that the farmer forgot by accident, but rather that the farmer should leave some olives on the tree for the poor on purpose which sounds more like Peah than Shikcha. A possible resolution to this question is proposed by the Malbim in his commentary on the Torah (Devarim 24:20) that the Gemara feels that the word Acharecha is extra and was not needed to be said. The preceding expression of the verse, לֹא תְפַאֵר (Lo Tefaer), “do not remove all of its beauty” refers to something that the farmer should leave on purpose, namely Peah, and the following expression, אַחֲרֶיךָ (Acharecha), “after yourself”, is coming to add that the farmer should also leave something that he forgot by accident, namely Shikcha. This derivation is so farfetched that even not all of the Tannaim agreed to it. Mishna Peah 7:1 quotes the opinion of Rebbi Yossi who says that the law of Shikcha does not apply to olives at all. Talmud Yerushalmi (Peah 7:1, Daf 31b) concludes that Rebbi Yossi does not hold of this derivation from the word Acharecha. Our Tosefta however, as well as the opinion of the Tanna Kama in Mishna Peah 7:1, follow the view of Rebbi Akiva who holds of the derivation from the word Acharecha. It is not clear where this derivation is quoted in the name of Rebbi Akiva. To confuse the matter further the Sifri (Devarim 284) states that both laws of Shikcha and Peah by olives are derived from the word Acharecha and not from the two separate parts of the verse as was suggested by the Malbim. Talmud Yerushalmi (Peah 1:4, Daf 7b) provides an alternative source that all fruit trees are obligated in Peah. It derives it from the word שָׂדְךָ (Sadcha), “your field”, in the main verse regarding Peah (Vayikra 19:9 and 23:22). It is not clear how this word implies a reference to trees. It is possible that it generally includes everything that can possibly grow in a field including trees.

   The other obvious issue with this derivation is that the verse is specifically talking about olives and not any other kind of fruit. However, the Gemara uses it to refer to Shikcha and Peah of all fruit trees. How it arrives at that conclusion is not clear. Due to this problem the Rash Mishantz in his commentary on the Mishna (Mishna Peah 1:4, Vehatvua) writes that by Torah law Peah applies only to grain, grapes and olives, all of which have explicit verses to back it up, however, other fruit trees are only obligated in Peah by a Rabbinical decree. According to that explanation this Tosefta is stating both Torah and Rabbinical obligations in Peah and Shikcha. The Rash rejects all of the derivations from verses quoted in various sources that I already mentioned as mere Asmachtot (references from verses in Tanach for Rabbinical decrees) and not true Derashot (deravations). On the other hand, the Rambam implies in his Mishneh Torah (Hilchot Matnot Aniyim 1:6, 1:7 and 1:14) that trees are obligated in Shikcha and Peah by Torah law and all of the above mentioned Derashot are real and not just Asmachtot, since the Rambam quotes verses as the source for the stated laws and then concludes that all of them are of Torah origin. For a discussion of this argument between the Rash and Rambam see the commentary on Talmud Yerushalmi, Mareh Hapanim (Peah 1:4, Daf 8a, Yomar Zayit).

10. The Tosefta uses the term “the poorest of the Jews” in order to emphasize that even a person who may not be respected in society and does not wield much power, still has his rights upheld and can demand the gifts to the poor to be given to him.
11. I have quoted the text as it appears in the Erfurt manuscript, which has the word מוציא (Motzi), “he takes out”, referring to the poor person who can take the produce away from the owner. However, in the Vienna manuscript the reading is מוציאין (Motziin), “we take out”, referring to the big we, meaning the Bet Din (court). According to that reading the explanation of the Tosefta would be different than the way I explained it in the main text. It would be referring to a poor person who is the owner of the field himself and he wants to keep the gifts to the poor for himself. This is the way Saul Lieberman explains this reading in the Tosefta in Tosefta Kifshuta based on the explanation of a similar Beraita in Talmud Bavli (Chulin 131b). I have chosen the reading of the Erfurt manuscript, because it does not require this explanation, since it is really farfetched to say that there is a poor person who would want the gifts for himself who at the same time owns a whole field, or even some produce. If he has his own produce he should not need the gifts to the poor.
12. The farmer is not allowed to set aside the produce from any of the gifts to the poor for a specific poor person, because that would be favoritism. He must give these gifts to the first poor person who asks for them. Obviously, when the Tosefta says that the poor person can come and take what is rightfully his it does not mean that the poor person can come and take Peah without the permission of the owner of the field, because it was already mentioned earlier in Tosefta Peah 2:7 that the poor person is not allowed to take it until he verifies that the owner set it aside for Peah. All the Tosefta means is that the owner is not allowed to deny the poor person the set aside gifts, because the owner wants to give them to someone else, but rather he must give them to the first poor person who asks for them. However, if the poor person asks the owner if this produce is set aside for Peah and the owner says yes, but he is holding it for a specific poor person, then the poor person who showed up first is allowed to take it anyway despite the owner protesting.

    There two potential sources for this law. One source for this law is derived in the Sifra (Kedoshim, Parshitta 1, Perek 2) from the verse in the Torah (Vayikra 19:9-10 and 23:22) by reading that verse out of context. The verse says:

    … וּפֶרֶט כַּרְמְךָ לֹא תְלַקֵּט, לֶעָנִי וְלַגֵּר תַּעֲזֹב אֹתָם …

    … and you should not pick the single grapes of your vineyard; you should leave them for the poor person and the convert …

    The Sifra takes the following words out of this verse and reads them a single flowing text without a comma in between: לֹא תְלַקֵּט לֶעָנִי, which if translated as a stand-alone text would mean “do not rip off the poor person”. The Sifra interprets this to mean that the owner should not help one poor person at the expense of other poor people. I would like to suggest that this Derasha (derivation) is merely an Asmachta (a reference from the Tanach for a Rabbinical law) and not a true derivation of a Torah law, because the verse is completely read out of context. According to the Sifra the law itself was a Rabbinical enactment in order to make sure that all poor people will have equal rights to get the gifts to the poor without the owners of fields holding the set aside produce for their friends. Talmud Bavli (Chulin 131b) states that the reason for this law is because the Torah says (Vayikra 19:9-10 and 23:22) by all gifts to the poor the expression of עזיבה (Aziva), “forsaking” or “leaving”. This implies that the owner should leave the produce for the poor and not have any say in what happens to it after he set it aside for them. Therefore the owner should not be able to somehow put a hold on the gifts and reserve them for a specific poor person. This explanation is a direct derivation of the Torah verses and not and Asmachta, and therefore according to the Talmud Bavli this law is a Torah law, and not a Rabbinical law. As I will explain below in note 15 it seems to me that the Tosefta holds that this law is a Rabbinical enactment and not a Torah law.

13. For an explanation of what Maaser Ani was, see above Tosefta Peah 1:6, note 7.
14. It is not clear why the Tosefta adds the word “underneath” in this case. It does not seem to have any significance.
15. The reason why favoritism does not apply to Maaser Ani just like it does not apply to Leket, Shikcha and Peah depends on the source of this law, as I explained above in note 12. If this is a Rabbinical enactment then we can easily understand that the Rabbis enacted it as a protection against favoritism in the same way as they did by the other gifts to the poor, so that all poor people will have equal rights in accessing these gifts. However, if it is a Torah law then it becomes much more difficult to understand why it is so. By Maaser Ani the Torah does not use the expression of עזיבה (Aziva), “forsaking” or “leaving”. Rather the Torah uses two different expressions, one of הנחה (Hanacha), “putting down” (see Devarim 14:28-29), meaning the owner should put it down so that the poor can come and take it themselves, and also the expression of נתינה (Netina), “giving” (see Devarim 26:12), meaning that the owner should give this tithe to the poor. Neither expression implies that once the owner puts it down he does not have any say anymore to whom it should go. In fact, Talmud Bavli (Chulin 131b) quotes a Beraita that says the exact opposite of the law of our Tosefta, that favoritism applies to Maaser Ani and the owner can hold it for a poor person of his choice, due to this precise reason that the Torah uses the expression of “giving” by Maaser Ani, meaning that he can give it to whomever he wants to. Due to this I am further inclined to say that our Tosefta holds that the law of non-applicability of favoritism to all gifts to the poor is a Rabbinical enactment. The question of applicability of favoritism to Maaserot (tithes) in general, and to Maaser Ani in particular, is discussed in Talmud Yerushalmi (Nedarim 11:3, Daf 37b). There two Amoraim argue about it and bring various proofs to their opinions from verses in the Torah. It is clear from their argument that this law has not been settled for a while after the Tosefta has been completed.
16. Tosefta Chala 2:8 lists 24 gifts to the Kohanim given to them by the Torah. Out of these 24 gifts, 14 of them are parts of sacrifices and are therefore not given by the public to the Kohanim as a part of their daily lives. Our Tosefta is only referring to the remaining 10 gifts which are given to the Kohanim by the public, and even then not to all of them, because some of them are not given to the Kohanim voluntarily by the owner, but rather they revert to the Kohanim without the owner’s consent as I will explain. These 10 gifts are:
    1)      Terumah (heave offering). For an explanation of what Terumah is, see above Tosefta Peah 1:6, note 7.

    2)      Terumat Maaser (heave offering of the tithe). For an explanation of what Terumat Maaser is, see above Tosefta Peah 1:6, note 7.

    3)      Chalah (dough offering). The Torah commands that every time a person bakes bread he has to separate a portion of his dough to give to the Kohen. See Bemidbar 15:17-21.

    4)      Reishit Hagez (first sheared wool). The Torah commands that the first portion of wool sheared of every sheep by the herder has to be given to the Kohen. See Devarim 18:4.

    5)      Zeroah (foreleg), Lechayayim (cheeks), and Hakevah (stomach), known together as the Matanot (gifts). The Torah commands that every time a person slaughters an animal for food he has to give the foreleg (front leg), the cheeks, and the stomach, in particular the last of four stomachs of a ruminating animal, such as a cow, a sheep or a goat, known as the abomasum, to the Kohen. See Devarim 18:3. I will explain each of these gifts in more details below.

    6)      Pidyon Haben (redemption of the firstborn son). The Torah commands that the father has to redeem his firstborn son from the Kohen, by giving the Kohen five silver shekels. See Shemot 13:13 and Bemidbar 15:18.

    7)      Pidyon Peter Chamor (redemption of the firstborn donkey). The Torah commands that the owner of a firstborn donkey has to redeem this donkey from the Kohen by giving the Kohen a sheep in order to be able to use the donkey. See Shemot 13:13 and Bemidbar 15:18.

    8)      Charamim (taboo properties). The Torah commands that anything that a person declares to be a Cherem (taboo property) without specifying that it should belong to the Temple (Bedek Habait) then it automatically belongs to the Kohanim. See Bemidbar 18:14 and Mishna Arachin 8:6. Talmud Bavli (Arachin 28b) states that the owner has to give it to any Kohen who is on duty in the Temple that week, but not to any other Kohen. It is not clear if this Tosefta agrees to that or not.

    9)      Sadeh Achuzah (inherited field). The Torah commands that a person who inherited a field from his relatives and then consecrated it to the Temple and did not redeem it before Yovel (Jubilee year), and then the field got redeemed from consecrated property by one of his relatives and remained in their possession when the Yovel began then on the Yovel this field automatically goes out from the possession of the relative who owns it and becomes the property of the Kohanim. See Vayikra 27:16-21. This specific gift is not given to the Kohanim by the owner, but rather reverts to them automatically. Since the owner cannot chose which Kohen to give it to it automatically belongs to all of the Kohanim who are on duty in the Bet Hamikdash (Temple) during the first week of the Yovel and they can divide it equally between themselves or can keep it as partners. See Talmud Bavli (Arachin 28b).

    10)   Gezel Hager (property stolen from a convert). The Torah commands that if property was stolen from a convert who does not have any Jewish relatives at all and the convert died before the thief was able to return him his stolen object, then the thief has to return the stolen property to the Kohanim. See Bemidbar 5:8 and Tosefta Bava Kama 10:9. Since the owner of the property is already dead this gift is given to the Kohen by the thief. Talmud Bavli (Arachin 28b) states that the owner has to give it to any Kohen who is on duty in the Temple that week, but not to any other Kohen. It is not clear if this Tosefta agrees to that or not.

    Our Tosefta is referring to all gifts mentioned on this list except for number 9, Sadeh Achuzah, and also possibly except for number 8, Charamim, and number 10, Gezel Hager, as I already explained.

17. The Torah gave the Leviim only one gift and that is Maaser Rishon (first tithe). See Bemidbar 18:21-24. For an explanation of what Maaser Rishon is, see above Tosefta Peah 1:6, note 7.
18. See above, note 16, gift number 5. The Torah says (Devarim 18:3) that one leg should be given to a Kohen, but it does not specify which of the two front legs of an animal should be given to a Kohen. Tosefta Chulin 9:3 learns out from a Meh Matzinu (comparative derivation) that specifically the right front leg is given to the Kohen and not the left front leg. Talmud Bavli (Chulin 134b)
19. See above, note 16, gift number 5. The Torah says (Devarim 18:3) that the לחיים (Lechayayim), literally “cheeks”, of each slaughtered animal have to be given to the Kohen. Since the Torah says “cheeks” in plural, both cheeks have to be given to the Kohen. Mishna Chulin 10:4 and Tosefta Chulin 9:3 explain that it does not just include the cheeks but rather both lower jaws and even a part of the neck of the animal. The exact boundaries of these “jaws” are disputed between the Mishna and the Tosefta. The Hebrew word for “jaw” is לסת (Leset), which is a contraction of its original spelling לעסת, which is in turn derived from the root לעס, which means “chew”. So the word Leset literally means a part of the body with which one chews. Since both the jaws and the cheeks move during chewing it would make sense that the word Leset could refer to either one of them. Unfortunately that word is not mentioned in the Tanach, so we do not really have any reference for its early usage. In the language of the Talmudic literature the precise difference between the words Lechi and Leset was not clearly defined and the words were used interchangeably, sometimes referring to the cheek and sometimes referring to the jaw. For various uses of these words throughout the Talmudic literature see Marcus Jastrow, “Dictionary of the Targumim, Talmud Bavli, Yerushalmi and Midrashic Literature”, 2^nd Edition, 1926, p. 702, entry לחי and p. 713, entry לסת.
20. See above, note 16, gift number 5. The Torah says (Devarim 18:3) that the קבה (Keiva), literally “stomach”, of each slaughtered animal have to be given to the Kohen. However, ruminants (animals that chew their cud) have a very complex stomach, which is divided into 4 different chambers: rumen, reticulum, omasum, and abomasum. In the first two chambers, the rumen and the reticulum, the food is mixed with saliva and separates into layers of solid and liquid material. Solids clump together to form the cud. The cud is then regurgitated, chewed slowly to completely mix it with saliva and to break down the particle size. Even though the rumen and reticulum have different names they represent the same functional space as digesta can move back and forth between them. Together these chambers are called the reticulorumen. The degraded digesta, which is now in the lower liquid part of the reticulorumen, then passes into the next chamber, the omasum, where water and many of the inorganic mineral elements are absorbed into the blood stream. After this the digesta is moved to the abomasum. The abomasum is the direct equivalent of the monogastric stomach, such as a human stomach, and digesta is digested here in much the same way. Digesta is finally moved out of the stomach and into the small intestine, where the digestion and absorption of nutrients occurs. The Hebrew word Keiva, although when used in reference to humans refers to the stomach, in ruminants it refers to the abomasum, which is the last chamber of the ruminant’s stomach and is equivalent to the human stomach. This usage of the word was apparently very well defined, because when the Tosefta (Chulin 9:3) explains what it is all it says is that “Keiva is meant literally”.


Ruminant digestive system.



The four stomachs of a suckling kid (goat). Photo: Dr. David B. Fankhauser of University of Cincinnati Clermont College.


The Hebrew names of the four stomachs correspond to either the way they look or the function that they perform. In Talmudic Hebrew the four chambers of the stomach are known as follows (see Mishna Chulin 3:2 with Rashi’s commentary on it (Chulin 42a, Ubet Hakosot)):

1. Rumen – כרס (Keres). The word כרס was originally spelled כרש (see Yirmiyahu 51:34). It seems to have the connotation of not just a stomach, but a place which gets stuffed with food. The word Keres was used to refer to the rumen which is the stomach in which the animals stuffs its food right after swallowing.
2. Reticulum – בית הכוסות (Beit Hakosot). Beit Hakosot literally means “the house of cups”. The reticulum is called so because its inner lining looks like cups.
3. Omasum – מסוס (Masos) or מסס (Masas). The omasum is called Masos from the root מס (Mas) or מסס (Masas), which means “to melt”. I would like to suggest that the reason it is called that is because that is where the water is absorbed from the cud into the blood stream. Since melting of ice looks like water is leaking away from it, it is as if the cud melts away in the omasum by losing its water content. The way that the ancients knew that is probably by inspection of the food that was found inside a slaughtered animal. They noticed that the food that was inside the abomasum was completely dry, where as the food inside the omasum still had some wetness to it.
4. Abomasum – קיבה (Keiva). This word is spelled in the Torah (Devarim 18:3) קבה and seems to come from the root קב (Kav) or קבב (Kavav) which mean “hollow”. The abomasum is probably called Keiva because it was commonly inflated like a balloon and then dried in order to be eaten or turned into rennet in order to make cheese. Since people used it in a way that it had a large hollow space inside it was called Keiva (i.e. an object with hollow space inside). It should be noted that the rumen can be inflated as well, but it probably was not as common to do so and therefore this name was not applied to the rumen.


Inner lining of the rumen. Photo: Dr. Mohammed Khalil of Purdue University’s College of Veterinary Medicine.



Inner lining of the reticulum. Note it looks like cups. Photo: Dr. Mohammed Khalil of Purdue University’s College of Veterinary Medicine.



Inner lining of the omasum. Photo: Dr. Mohammed Khalil of Purdue University’s College of Veterinary Medicine.



Inner lining of the abomasum. Note the folds (plica) in its inner wall. Photo: Dr. David B. Fankhauser of University of Cincinnati Clermont College.

21. The Tosefta mentioned a gift to the Levi, but did not list what it is in its list of examples, so therefore I have added it (Maaser Rishon) to the list for clarity. As was already implied earlier in note 16 this list of examples that the Tosefta mentions is not exhaustive and there are other gifts to the Kohanim to which favoritism applies, allowing the owner to select the Kohen to whom to give the gifts to.
22. The reason that favoritism applies to the gifts to the Kohanim and the Leviim is the same as was mentioned in note 15. The Torah always uses the expression of נתינה (Netina), “giving” in various verses that discuss these gifts. The expression of giving implies that the owner can give the gifts to whichever Kohen or Levi he chooses and does not have to give it to anyone who comes to demand them.

Notes:

1. The Tosefta states a new law regarding Peah. It is not related to any Mishna.
2. Literally: the owner of the house.
3. The Tosefta teaches that the obligation of leaving Peah includes in itself not only the edible part of the plant, but the whole stalk or branch. So in the example of the Tosefta, if the crop that is being given as Peah is flax, the owner cannot say to the poor people that they should just take the kernels of the flaxseed, because that is the only edible part of the plant and they should give him back the flax stalks themselves, so he can extract fibers from it and make linen, but rather everything belongs to the poor, both the seed kernels and the stalks. In the case of fruit growing on a tree, not only the fruit belongs to the poor, but also the branches of the tree on which the fruit grows. This law is learned out in the Sifra (Kedoshim, Parshitta 1, Perek 3) from the verse in the Torah (Vayikra 19:9-10 and 23:22) that says תַּעֲזֹב (Taazov), “leave” it to the poor people, implying that it should be left in the exact way that it grows, attached to the stalk or to the branch, with the branches included in the gift.



Flax growing in a field. Photo: Henfaes Research Centre, University of Wales, Bangor, Flax and Hemp Project. www.flaxandhemp.bangor.ac.uk



Common Flax (Linum usitatissimum). Notice the box with seeds that forms underneath the flowers. The fibers that are used to make linen are extracted from the long stem of the plant.

4. The Hebrew word  מכבדת(Mechabedet) (plural: מכבדות, Mechabdot) literally means a “broom”. A palm branch that is fully open was called a Mechabedet, because it was commonly used as a broom to sweep the house.



A man sweeping the street with a date palm branch in Oman. Photo: rmtw’s photostream.

5. It does not matter why the fruit fell off the branch. It could be due to wind blowing it off or the fruit got simply too ripe and fell off by itself.
6. The Tosefta teaches that the branches only belong to the poor as a part of the gift Peah if the fruit was separated while it was still attached to the branch. However, if it was separated after it was already detached from the branch, then the branches do not need to be separated for Peah and still belong to the owner. The Sifra learns this law from the same verses in the Torah (Vayikra 19:9-10 and 23:22) as the previous law, from the word אֹתָם (Otam), “them”, meaning that the farmer only needs to leave “them” (i.e. the seeds or the fruit), but not the branches, in the case where they already got separated. The Sifra clarifies, as our Tosefta implies, that if the owner cut off the branches with the fruit on it from the tree for Peah, and then before the poor people took them, the fruit got detached from these branches, the branches still belong to the poor people and not to the owner. This is because since they were already separated from the tree with the intent to be given as Peah, they belong to the poor from that moment on, regardless of the fruit that is attached to them.