The Tosefta Blog

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.

Notes:

1. Mishna Peah 4:9 states that Leket, Shikcha and Peah of a Non-Jew is obligated in Maaserot unless he declared it ownerless. This Tosefta clarifies that law.
2. In all previous Toseftot the word used for a Non-Jew was גּוֹי (Goy). However, in this particular spot the Tosefta does not use the word Goy, but rather the word נָכְרִי (Nachri). This reading is the same in all manuscripts and printed editions. The literal meaning of the word Goy is “nation”, where as the literal meaning of the word Nachri is “foreigner”. However, both words mean exactly the same thing and are used interchangeably throughout Talmudic literature to refer to a Non-Jew. I would assume that the reason the word Nachri is used in this case is because the copyist of one of the early manuscripts which served as the source for the manuscripts that we have simply was not careful and used a synonym instead of copying the original word, which was Goy. It is also possible that the reason the copyist used the word Nachri here is to match the expression used in the Mishna (Peah 4:9), in the statement of this law.
3. It is clear that the Tosefta refers to a case where the Non-Jew who is living in the Land of Israel left the three gifts to the poor in his own field from his own produce, because it already discussed the case of a Non-Jew partnered together with a Jew back in Tosefta Peah 2:9. Such a case was probably common during the Talmudic times, because Non-Jews that lived in Israel wanted to comply with Jewish laws and traditions, especially the ones that were of social nature, even if they were not required to do so, in order to preserve good relations with the Jews.
4. As I already mentioned previously (see above Tosefta Peah 2:9, note 8), the Non-Jew is not obligated in the Mitzvah (commandment) of leaving gifts to the poor. Since he is not obligated in them, the produce that he leaves for that purpose is not officially considered to be Leket, Shikcha or Peah. Since it is not considered to be one of the three gifts to the poor, it does not qualify for an exemption from tithes like those from a Jew do. See Mishna Chala 1:3. So any Jew who takes this produce is obligated to remove the Maaserot from it. You should not assume that the status of this produce is automatically Hefker (ownerless), because as the Tosefta explains in the next line that depends on who the Non-Jew left it for. Ownerless produce, just like gifts to the poor, is also exempt from Maaserot. See Mishna Chala 1:3. However, in this particular case it obtains a special status, which makes it neither completely the owner’s, nor completely ownerless. It is essentially the owner’s property that he gives permission for others to take, but not ownerless.

   It should be noted that the ruling of the Tosefta that the Non-Jew’s produce can be obligated in Maaserot in general is not universally accepted. Talmud Yerushalmi (Peah 4:6, Daf 23a-b) brings an argument between Amoraim (Sages of the Era of the Talmud), Rav Chizkiyah and Rav Yossi, both quoting a statement in the name of Rav Yochanan, that the general law of a Non-Jew’s produce being obligated in Maaserot depends on another argument between Tannaim (Sages of the Era of the Mishna) regarding the possibility of canceling the holiness of the Land of Israel over Non-Jewish property. Talmud Yerushalmi (Demai 5:8, Daf 23a) quotes an argument between Rebbi Meir on one side and Rebbi Yehuda and Rebbi Shimon on the other side, whether if land owned by a Non-Jew in the Land of Israel loses its holiness and therefore is not obligated in Maaserot just like land outside of the Land of Israel. Rebbi Meir holds that Non-Jew’s land in Israel does not lose its holiness and therefore all produce that comes from it is still obligated in Maaserot. However Rebbi Yehuda and Rebbi Shimon hold that it loses its holiness and therefore it is always exempt from Maaserot, just like all produce that comes from the outside of the Land of Israel. These concepts in the language of the Talmud are known as follows:

   Rebbi Meir’s opinion:

   אין קניין לעכו”ם בארץ ישראל להפקיעו מיד מעשר.

   Literal translation: A Non-Jew does not have a right of possession in the Land of Israel in order to exempt [his produce] from Maaserot.

   Rebbi Yehuda’s and Rebbi Shimon’s opinion:

   יש קניין לעכו”ם בארץ ישראל להפקיעו מיד מעשר.

   Literal translation: A Non-Jew has a right of possession in the Land of Israel in order to exempt [his produce] from Maaserot.

   As can be seen from the way they are worded they are somewhat obscure and are up to interpretation, which leads us to the explanation of the argument between the Amoraim.

   Rav Chizkiyah and Rav Yossi propose that our Tosefta can only satisfy one of these opinions, but not both. They argue as follows: Rav Chizkiyah says that the Mishna (Peah 4:9) and also our Tosefta are dealing with a case where the field belongs to the Non-Jew. They go only like the opinion of Rebbi Yehuda and Rebbi Shimon because they hold that even though normally produce from Non-Jew’s field is always exempt from Maaserot, in this particular case where the Non-Jew did not make it Hefker properly, it would still be obligated in Maaserot. This is because it became obligated in Maaserot at the moment that the Jew acquired it, so it is not impacted by the Non-Jew’s ownership of the land. However according to Rebbi Meir, who holds that the produce from Non-Jew’s land is still obligated in Maaserot, because the Non-Jew does not have true ownership of land in Israel, the produce would be obligated in Maaserot even if the Non-Jew made it Hefker. This is because he does not really have the right to make something Hefker that does not totally belong to him. According to Rebbi Chizkiyah, Rebbi Meir holds that not only the Non-Jew cannot remove the holiness from the land to exempt it from Maaserot, but also he cannot fully acquire it at all to give him enough rights over it to make something that comes from it Hefker. I have to admit that this opinion is very farfetched, especially that the argument between Rebbi Meir and the other Tannaim is not only regarding the holiness of the land, but also about the Non-Jew’s ability to acquire property in Israel, and it is nearly impossible to read it into the text of the Tosefta without completely convoluting its literal meaning.

   Rav Yossi says exactly the opposite of Rebbi Chizkiyah. Rav Yossi says that the Mishna and the Tosefta go like the opinion of Rebbi Meir, that the produce from Non-Jew’s field is still generally obligated in Maaserot, which is why in this case as long as the Non-Jew did not make it proper Hefker it is obligated in Maaserot, but in the case where he made it proper Hefker it is exempt just like anyone’s Hefker is exempt from Maaserot. Rav Yossi holds that the argument between Rebbi Meir and Rebbi Yehuda and Rebbi Shimon is only regarding whether the Non-Jew’s ownership of the land cancels the holiness of the land or not, as the language of their statements implies. However, all of them agree that the Non-Jew can fully acquire land in Israel and therefore he can declare it or anything that comes from it Hefker since it completely belongs to him. However, according to Rebbi Yehuda and Rebbi Shimon, this produce should always be exempt from Maaserot regardless if the owner made it Hefker or not, which is why the Mishna and the Tosefta cannot be like their opinion. Rav Yossi’s opinion makes a lot more sense and is much easier to read into the text of the Tosefta. For further research into this argument and another possible explanation of the opinions of the Tannaim see Talmud Bavli (Gittin 47a).

5. There is an argument between Bet Shammai and Bet Hillel in Mishna Peah 6:1, whether ownerless produce becomes ownerless only if it was declared to be so for all people equally, both rich and poor, or if it is considered to be ownerless even if it was declared so only for the poor, but not for the rich, which makes the rich forbidden from taking it. Bet Shammai hold that Hefker produce can be declared as such even only for the poor, but not for the rich, and it will obtain the official status of Hefker with all of its repercussions such as an exemption from Maaserot. However, Bet Hillel hold that in order for something to obtain the status of Hefker, it has to be truly declared ownerless, equally obtainable by all people, both rich and poor, and therefore produce that is declared Hefker only for the poor, but not for the rich, is not considered to be Hefker. This Tosefta is going like the opinion of Bet Hillel, which is the universally accepted opinion in Talmudic literature, and therefore if the owner does not allow rich people to take it, because he intended to leave it only for the poor, then it is not considered to be Hefker and is therefore obligated in Maaserot.

   I would like to digress and discuss the legal concept of property which is declared ownerless only for some people, but not for others. Talmud Yerushalmi (Peah 6:1, Daf 28a-b) discusses various cases of such partial declaration of non-ownership. The Gemara mentions an argument between Rebbi Meir and Rebbi Yossi about how the concept of Hefker works. Rebbi Meir says that a declaration of non-ownership (Hefker) of property by the owner is a transfer of property from the owner’s possession into someone else’s possession based on the desire of the owner. And therefore it is up to the owner to decide who should be able to get this property in the end. He can either allow anyone to take it or he can restrict it only to a specific group of people. However Rebbi Yossi explains that Hefker is not a transfer of property from the owner’s to someone else’s possession, but rather it is an act of repossession, זכייה (Zechiyah), by the new owner. In other words, the property is not considered to be ownerless until someone else comes and repossesses it for themselves. See Talmud Yerushalmi (Pesachim 2:2, Daf 14b) for this clarification. The owner merely gives permission to someone to take it, but it does not actually become ownerless until that person takes it. Since it is a concept of repossession, it has to be able to be repossessed by anyone and not just by a restricted group of people. The opinion of Bet Hillel follows the logic of Rebbi Yossi.

6. The Tosefta seems to be the primary source of this rule, as it does not appear anywhere else in Talmudic literature. However it seems from the language of the Tosefta that this rule is not trivial and that the idea of a Non-Jew declaring something ownerless and it actually getting the official status of Hefker is questionable and is not universally accepted. It seems to me that the reason the Tosefta emphasizes this rule is to exclude the opinion of Rebbi Chizkiyah that I discussed in the previous note that a Non-Jew does not have full ownership of his land in the Land of Israel and therefore cannot make something fully Hefker. Therefore the Tosefta explicitly states that it is not true and a Non-Jew who owns property regardless of what kind of property it is and its location he has full ownership of it and can do whatever he wants with it, including making it Hefker.
7. Since the produce was left for anyone to take and is not limited to a specific group of people then it is considered to be truly Hefker and it is exempt from Maaserot.

I received today in the mail the printed copies of Tosefta Masechta Berachot, both paperback and hardcover. They look great and are approved for world-wide distribution. Feel free to buy the books now. You can buy them here.

Notes:

1. The Tosefta states a new law regarding gifts to the poor. It is not related to any Mishna.
2. The word written in the Vienna manuscript is גוי (Goy), which means “Non-Jew”. However that is not correct, because in Talmudic literature the Non-Jew is never used as an example of someone who lived in the Land of Israel and died without any relatives to inherit him. However a convert (Ger) is the classical example of such a case, because in the Land of Israel during the Talmudic times, a lot of Non-Jews who converted to Judaism came from another country and all of their relatives remained in the country of origin. The only relatives who would be able to inherit a convert would be his Jewish wife and children and if the convert never got married in Israel after his conversion then he would essentially be alone. It is also possible that the Non-Jewish relatives of the convert were not allowed to inherit him, because they were not considered his relatives anymore after his conversion. However I am not sure if this law was universally accepted at the time of the Tosefta. See Talmud Bavli (Yevamot 48b) where Tannaim argue about the status of the convert being like a newborn baby or not after his conversion, which essentially severs his ties to his blood-relatives, and also Talmud Bavli (Bechorot 47a) where Rav Yochanan and Reish Lakish continue to argue about the same question. Both of them lived during the middle of the 3^rd century CE already after the Tosefta has been completed and therefore it is clear that even by then it was not universally accepted whether the Non-Jewish relatives of a convert  inherit him after his death or not.I would like to suggest that the reading גוי (Goy) in the Vienna manuscript is actually an error that occurred from another manuscript where it was written גר (Ger) and then the vertical line of letter Reish (ר) cracked, which made it look like two separate letters, Vav (ו) and Yud (י), spelling the word גוי (Goy). The copyist not realizing that it is a defect simply copied what he saw and as a result of that the word Goy crept into some manuscripts. Therefore I have decided to keep the reading of the Erfurt manuscript, which is גר (Ger), meaning “convert”.
3. By Jewish law, when a person dies without any relatives to inherit him all of his property automatically becomes Hefker (ownerless) and anyone who acquires that property by performing some kind of an act of acquisition (Kinyan) becomes its new owner, on a first come first serve basis. See Mishna Bava Batra 4:9 where the Mishna just assumes this rule to be true. The source for this rule is unknown, although it might just stem from logic that since there was no set government office in the ancient world that takes ownership of ownerless property it simply remains ownerless and can be taken by anyone who wants to do so. A similar concept existed in Roman law, known as Caduca, which essentially was property left by a person who died without any kind of heirs. Such property became public property or from the reign of Emperor Caracalla became the property of the Caesar, known as Fiscus. See Sir William Smith, A dictionary of Greek and Roman antiquities, 2^nd edition, Little, Brown, and Co., 1859, entry Bona Caduca, p. 206. The Rabbis have never made any kind of a special decree that would make such property transfer over into the possession of the king, the court or anyone of greater authority, and therefore the law remained as dictated by logic that such property becomes ownerless and can be acquired by anyone on first come first serve basis. For various types of Kinyanim (acts of acquisition) on different types of property see Mishna Kiddushin 1:2-5.
4. The Tosefta does not say that he acquired the land itself and implies that he only acquired standing crops. However if that was the case then this case and the last case of the Tosefta would both mean exactly the same thing. Therefore all commentators agree that the first case of the Tosefta must mean that he acquired both the field and the standing crops, where as in the last case he only acquired the standing crops, but not the field. It should also be noted that a similar Beraita is quoted in Talmud Yerushalmi (Kiddushin 1:5, Daf 12a) and there it says that the first person who “acquired the land” is obligated in everything. Chazon Yechezkel proposes that the reading in this Tosefta should be changed to read like the Beraita in the Yerushalmi, since that is what it means anyway, however I think that it is unnecessary, especially when it is clear that the Yerushalmi is quoting a different Beraita and not this Tosefta, because it says that in the case when the person acquired just the standing crops he is obligated in Leket Shikcha and Peah, but is exempt from Maaserot, which is the opposite of what our Tosefta says. The reading in all Tosefta manuscripts, printed editions as well as quoted in the Rishonim (Medieval Commentators) (see Rash Mishantz on Mishna Peah 1:6) is as I have written it above in the main text.
5. Since the person acquired both the field and the produce that is growing in the field he is obligated in all gifts to the poor (i.e. Leket, Shikcha and Peah) and in Maaserot as well, as any other regular owner of the field would. Obviously the gifts to the poor themselves are exempt from Maaserot as is mentioned in Mishna Chala 1:3. But all the produce that the owner collects for himself is obligated in all tithes.
6. If a person acquired detached produce regardless if it was bundled up then he is exempt both from all gifts to the poor and from Maaserot, but for different reasons. The reason he is exempt from gifts to the poor is because the obligation to leave the gifts to the poor occurred during the harvest as implied from the verses in the Torah as I already explained earlier in Tosefta Peah 2:8, note 4. Since during the harvest the crops were owned by the convert he was the one who was obligated in leaving the gifts to the poor. Whether he actually left them or not is irrelevant for the new owner. Since the new owner acquired these crops already after they have been harvested he is exempt from leaving all of these gifts.The reason that the new owner is exempt from Maaserot is a lot more complex. For a detailed description of what tithes are see Tosefta Berachot 6:19, note 3. Generally, the produce remains Tevel (untithed produce), and therefore forbidden for consumption, forever until someone removes all of the tithes from it. The obligation of removing the tithes comes when the farmer performs an action which signifies the end of the harvest, such as the farmer piled up the produce, whether in the field or in the silo, or simply brought it inside his house. See Mishna Maaserot 1:5. It is not clear from the Tosefta’s language if is talking about produce which has been piled and its harvesting process has been completed, or if it is talking about bundles that have been  left in the middle of the field and have not yet been piled up. In either case, this law is hard to understand, because the produce should be obligated in Maaserot regardless of when it was taken. If the bundles have not been piled yet then when the new owner piles them he essentially makes this produce obligated in Maaserot from that point on, and if it was the convert who piled them already, then this produce should have become obligated in Maaserot then, and the new owner simply has to remove the Maaserot from the Tevel produce.

   Before I explain what exactly the Tosefta’s opinion is I would like to digress a little and mention the opinion and explanation of this law based on the Beraita quoted in Talmud Yerushalmi (Kiddushin 1:5, Daf 12a), because it will better illustrate the significance of the Tosefta’s opinion. This issue is discussed by the Rash Mishantz in his commentary on Mishna Peah 1:6 and is further expanded upon by Rav Yisrael Yehoshua Trank in his book on the Rambam’s Mishneh Torah called Yeshuot Malko (Hilchot Terumot 2:11). The Rash, as explained by Yeshuot Malko, proposes various possible conditions for the case when the produce that used to be ownerless and then was acquired by someone is exempt from Maaserot. His main explanation is that if the field itself was ownerless while the harvest took place then the harvested produce would be exempt from Maaserot. Unfortunately this explanation does not fit into the case of our Tosefta, because the Tosefta implies that this detached produce was harvested by the convert while he was still alive and therefore at the time of the harvest the field was not yet ownerless. The other possible explanation is that the convert left the harvested produce lying in the field and did not pile it yet when he died. Therefore when the new owner acquires it, it comes from an ownerless field, but it did not become obligated in Maaserot yet, because it has not been piled up. Since it was acquired from an ownerless field it never becomes obligated in Maaserot. The Rash proposes various reasons why produce acquired from an ownerless field is exempt from Maaserot according to various opinions of understanding of the nature of ownerless property. Some of them are based on logic and some are derivations from verses in the Torah. It should be noted that not all of these reasons can be applied to the opinion of this Tosefta, since some of them are not only applicable to non-ownerless produce from an ownerless field, but also to ownerless produce from a non-ownerless field. Since the Tosefta clearly says in its third case that if the person only acquired the standing crops which are still attached, but did not acquire the field itself he is still obligated in Maaserot, it is clear that the Tosefta holds that the fact that the field itself is ownerless does not exempt the produce from Maaserot as long as the produce was harvested after the field became ownerless. Our Tosefta holds that the only time the produce is exempt from Maaserot is when it was harvested before the field became ownerless, but did not become obligated yet in Maaserot because it has not been piled. In other words, it appears that the Tosefta requires two conditions to be true in order for produce to be exempt from Maaserot: 1) it came from an ownerless field, and 2) it became ownerless after it was already harvested. The Rash himself quotes our Tosefta and writes that he does not have an explanation for it, because no matter how you learn it one of its conditions gets contradicted as I already illustrated. He concludes that the text of the Tosefta must be incorrect and the correct version is in Talmud Yerushalmi (Kiddushin 1:5, Daf 12a), which I already mentioned in note 4, where the 3^rd case is reversed and it says that the person who just acquires standing crops is obligated in gifts to the poor, but is exempt from Maaserot. The Rash concludes that that Beraita is consistent with the logic that any produce that was acquired from an ownerless field, regardless if it was still attached to the ground and needs to be harvested or was already harvested, but not yet piled, it is exempt from Maaserot since it comes from an ownerless field.

   Despite all of the above problems I would like to propose an explanation for the law of Maaserot in our Tosefta without changing it. Mishna Chala 1:3 explicitly says that ownerless produce is exempt from Maaserot, but it does not explain exactly when that happens or why. Mishna Maaserot 1:1 also implies that Hefker produce is exempt from Maaserot because it says that only produce that is “watched” by someone (i.e. someone cares about it) is obligated in Maaserot, meaning that it has to belong to someone. Our Tosefta obviously agrees with that law, but it has a very specific set of conditions of when that exemption can occur. The Tosefta does not require the field to be ownerless at all, as the Rash assumed. After all it never says that. In fact according to the Tosefta it makes no difference what the status of the field itself is. It could be owned by someone or be ownerless. All the Tosefta cares about is when the new owner acquired the produce. As long as the owner acquired the new produce before it was harvested it is obligated in Maaserot as is the situation in the first case and in the third case of the Tosefta. However if the produce became ownerless after it was harvested, but before it became obligated in Maaserot (i.e. it was cut off from the ground, but not yet piled) then it becomes exempt from Maaserot due to becoming ownerless after the harvest. According to the Tosefta, ownerless produce is exempt from Maaserot only if it was ownerless right after the harvest, but before the obligation of the Maaserot took place. You may wonder why the Tosefta holds that only in this case.  The explanation is as follows. The Tosefta holds that the produce cannot be ownerless during the harvest itself because as soon as someone harvests it it belongs to that person. The act of cutting the produce off constitutes a Kinyan (act of acquisition) and there it does not matter if the produce was ownerless while it was attached to the ground. As soon as it is harvested it is not ownerless anymore. If the produce was already piled and became ownerless after that then it is still obligated in Maaserot, because once it becomes obligated in Maaserot it remains so forever until the tithes are removed. That leaves only one possible case when ownerless produce can become exempt from Maaserot, and that is the produce became ownerless while it was is lying untouched after it has been harvested, but before it was piled. Since it did not become obligated in Maaserot yet, it is exempt from them due to being ownerless. The reason why ownerless produce is exempt from Maaserot is derived from the verse in the Torah by Rav Yochanan in the name of Rebbi Yanai in Talmud Yerushalmi (Maaserot 1:1, Daf 1b). The Torah says with regard to Maaserot (Devarim 14:29):

   וּבָא הַלֵּוִי כִּי אֵין לוֹ חֵלֶק וְנַחֲלָה עִמָּךְ, וְהַגֵּר וְהַיָּתוֹם וְהָאַלְמָנָה אֲשֶׁר בִּשְׁעָרֶיךָ, וְאָכְלוּ, וְשָׂבֵעוּ, לְמַעַן יְבָרֶכְךָ יְהוָה אֱלֹהֶיךָ, בְּכָל מַעֲשֵׂה יָדְךָ אֲשֶׁר תַּעֲשֶׂה.

   And the Levite would come, because he does not have any share or inheritance with you, and the convert, and the orphan, and the widow who are in your gates, and they will eat and be satisfied, so that Hashem, your God may bless you in all of the deeds of your hand that you may do.”

   Rav Yochanan explains that the verse teaches us that the farmer has to give the Levi (Levite) the tithe from something that he otherwise cannot have. However, ownerless produce as well as gifts to the poor the Levi can just come and take them and it is not something that he is not able to get without the farmer specially giving it to him. Therefore all of the gifts to the poor as well Hefker are exempt from Maaserot. Obviously this reason is universal regardless of how we limit the exemption of ownerless produce from tithes. Therefore the Tosefta would agree with this reason as well as the Yerushalmi itself even though they have opposite views regarding what type of ownerless produce is exempt and what type is obligated in tithes.

7. According to the Tosefta, produce that was acquired by the new owner while it was still standing either by pulling it or by harvesting it is obligated in Maaserot, since during the moment of harvest it was already owned by that person, as I already explained in the previous note. However it is exempt from all of the gifts to the poor, because by gifts to the poor the Torah says (Vayikra 19:9 and 23:22) שָׂדְךָ, “your field”, which requires the field to be owned by someone, as I already explained earlier in Tosefta 2:8, note 3. However, in this case the Tosefta is specifically talking about where the field still remains ownerless and only the standing crops were acquired by the person, which makes them still exempt from the gifts to the poor.

Notes:

1. The Tosefta continues from the previous Tosefta and states a new law regarding Peah which involves a Non-Jew. It is not related to any Mishna.
2. I.e. they owned all of the crops in a field as partners.
3. The amount of crops in each portion would depend on the arrangement of their partnership. For example, if they are equal partners then each of them owns 50% of the crops. In that case the Jew would have to select half of the crops in the field and when they get harvested he would leave Peah from those crops (i.e. 1/60^th or more of half the crops). The other half will get harvested completely, because it belongs to the Non-Jew. However, if the partnership is not equal, such as the Jew owns 25% of the crops and the Non-Jew owns 75% of the crops then the Jew would leave Peah after ¼ of the crops were harvested based on that amount (i.e. 1/60^th or more of 25% of the total crops) and then the remaining ¾ of the crops would get harvested completely since they belong to the Non-Jew. As I already explained in note 3 on the previous Tosefta, it does not matter who owns the actual field itself, whether it is the Jew, the Non-Jew or some other third party. What matters with regard to Peah is who owns the crops themselves.
4. In the Erfurt manuscript the name of this Tanna is abbreviated to שמע’. Usually it is a reference to Rebbi Shimon, although the abbreviation itself can mean refer to other names, such as Shemaya. I am sure that this name is supposed to be Shimon, because in the Sifra (Parshat Kedoshim, chapter 1) there is a Beraita with similar content and it is quoted in the name of Rebbi Shimon, which implies that he is the one who makes this statement here. In the Geniza fragment (G4 ENA 3630.7) of this Tosefta the first two letters of the name of this Tanna are visible and they are שמ, which is most probably supposed to be read as Shimon. In the printed editions the person who makes this statement is Rebbi Yishmael and not Rebbi Shimon, however that is probably not correct, because later on in Tosefta Peah 3:18 there is a similar argument between Rebbi Shimon and the Tanna Kama if a vineyard which is owned as a partnership between a Jew and a Non-Jew is obligated in Olelot (incompletely formed grape clusters), and the reading there in all manuscripts as well as the printed editions is Rebbi Shimon and not Rebbi Yishmael.
5. In the Vienna manuscript the opinion of the Tanna Kama and the name of Rebbi Shimon are not mentioned. The Tosefta begins from this point as an anonymous statement quoting only the opinion of Rebbi Shimon. If we would assume that the argument in this Tosefta is based on the exactly same logic as the argument in Tosefta Peah 3:18 about Olelot in a vineyard owned in a partnership with a Non-Jew, then it makes sense to assume that the copyist of the Vienna manuscript simply made a mistake and omitted the opinion of the Tanna Kama and the name of Rebbi Shimon or he was copying from another faulty manuscript which already was missing that portion of the text, since it makes total sense following the same logic that Rebbi Shimon and the Tanna Kama would have this argument about Peah, as opposed to it being a single universal opinion as is implied from the Vienna manuscript. The argument appears in the Erfurt manuscript and the Geniza Fragment (G4 ENA 3630.7), as well as all of the printed editions, as I have quoted it above.
6. Even the crops that technically belong to the Jew.
7. The Tosefta does not specify what the Non-Jew is protesting in particular. He could be protesting a variety of things. For example, he could be protesting the fact that a part of the crops should be left as Peah for the poor, and instead he wants to harvest and sell all of the crops. Or he could be protesting that the Jew is harvesting his portion of the crops as if they are his own and not owned as a partnership, which would imply that the Non-Jew wants the crops to continue to be owned as a partnership even after they have been harvested and he may only want to divide up the profited money after the crops are sold. I have chosen the first explanation in the main text of the Tosefta. However, Minchat Yitzchak (in Shirei Mincha) and Chazon Yechezkel (in Biurim) chose the second explanation, which can also be read in to the Tosefta if some of the additional text in square brackets that I have inserted is changed. I will illustrate both of these interpretations in the next note.
8. The source of the argument between Tanna Kama and Rebbi Shimon seems to be the concept of Breirah (selection). For the explanation of what Breirah is see above Tosefta Peah 2:4, note 7. The Tanna Kama holds that there is such a thing as Breirah and therefore all of the crops can be divided in advance between the two partners. Whatever the first partner gets in the end when they decide to divide the crops or the money from the sale of the crops belongs to him retroactively at the time of the harvest. Therefore if the Jew owns 25% of the crops, to use the more extreme example, then he can simply say at the end of the harvest that his quarter of the crops was the last portion that got harvested and he is leaving Peah at the end of the field from that portion. However, Rebbi Shimon does not hold of the concept of Breirah and therefore he says that since the crops are owned as a partnership and have not been divided between the partners then each separate stalk is owned by both of them and therefore everything depends on whether the Non-Jew gives permission to the Jew to leave Peah. If the Non-Jew does not give him permission then each stalk individually is exempt from Peah, because the Non-Jew owns a part of it and since we do not know which part then all of it is exempt from Peah. However, if he gives permission to the Jew to leave Peah then we consider it as if he forfeited his right of administration of the produce which exempts everything from Peah, and now it is as if the Jew is responsible for the administration of the produce which makes everything obligated in Peah since the Jew is now capable to decide on his own (because he has permission to do so) to leave Peah for the poor from all of the produce.I would like to illustrate using the method of a proof by contradiction why the argument between the Tanna Kama and Rebbi Shimon cannot be explained using the second reason that I mentioned in note 7 which was that the Non-Jew protested the fact that they can divide their crops at the time of the harvest and therefore it is as if the Jew owns only his portion of the crops from which he leaves Peah. Let us say for the sake of argument that the Non-Jew gave permission to the Jew to take his share of the crops before they were harvested. That would mean that for all intent and purpose they are not partners any more. It is as if the Jew took his share of produce, removed himself from the partnership and is now the sole owner of his portion of the crops, where as the Non-Jew is the sole owner of the remaining crops. That would mean that only the Jew’s portion is obligated in Peah and the Non-Jew’s portion is obviously not obligated in Peah since he is not commanded at all in the Mitzvah (commandment) of Peah. This then brings us back to the opinion of the Tanna Kama who said that the Jew leaves Peah from his portion and the Non-Jew does not, so it comes out that the Tanna Kama and Rebbi Shimon do not argue, and that is obviously not the case.

   I will play devil’s advocate and try to defend the second explanation in note 7 by changing the interpretation of the Tosefta that so far I have assumed to be correct and have not commented upon, which in turn would make my proof by contradiction irrelevant. IN the main text of the Tosefta I have interpreted the statement of Rebbi Shimon as follows: “[If] a Jew and a Non-Jew were partners in standing crops, [then everything (i.e. both portions)] is exempt [from Peah]. Note that the Tosefta itself does not say what is exempt from Peah. I have inserted the word “everything” to refer to all of the crops. However, now I would like to propose that may be that is not the correct explanation, and may be Rebbi Shimon means that only the Jew’s portion is exempt from Peah, except he clarifies it by adding that the Jew’s portion is only exempt from Peah if the Non-Jew protested their division of the crops prior to the harvest and therefore the Non-Jew still owns a portion of each and every stalk thus exempting it from Peah. However if the Non-Jew did not protest that the Jew can harvest his section of the crops as if they are his own then the Jew owns his crops separately and therefore the Jew’s portion is obligated in Peah. In fact, Minchat Yitzchak explains Rebbi Shimon’s statement exactly in this way that when he says “obligated” and “exempt” he does not refer to everything, but rather only to the Jew’s portion. I do not like this explanation for a simple reason that it essentially requires the cancelation of the partnership between the Jew and the Non-Jew. Once the Jew harvests his portion as his own that means that they are not partners anymore and each person owns his share individually. The Tosefta does not say that their partnership was canceled. It implies that even after the harvest they remain partners; otherwise Rebbi Shimon’s case becomes kind of trivial, because obviously if the Jew pulled out of the partnership before the harvest then during the harvest his crops become obligated in Peah. Also, later on in Tosefta Peah 2:11 the Tosefta uses a similar language as here of a Non-Jew protesting without a clear explanation of what. There the implication is that the Non-Jew is protesting the poor people from taking Peah, Leket and Shikcha from his field. It would make sense that the same expression in this Tosefta is used to mean exactly the same thing that the Non-Jew protests the Jew from leaving Peah from his field.

   Regardless of which explanation is chosen it comes out from this Tosefta that Rebbi Shimon does not hold of the concept of Breirah, at least in the case of Peah, which is consistent with his opinion in other cases. See Talmud Bavli (Eruvin 37b) where it is implied based on other cases that Rebbi Shimon does not hold of the concept of Breirah at least by laws of Torah origin, such as Peah. Rav Yosef’s opinion there that that is not the case is generally rejected as shown in Talmud Bavli (Beitza 38a).

Notes:

1. The Tosefta states a new law regarding Peah. It is not related to any Mishna.
2. Standing crops means crops that are still attached to the ground.
3. It does not really matter why the Jew sold the crops to the Non-Jew. All the Tosefta is trying to emphasize is that the crops were sold while they were still standing, before they were harvested. The Tosefta simply gives an example of why someone would want to sell standing crops. Because he did not want to deal with the harvest and therefore he sold the standing crops so that the buyer would harvest them himself.

   The Tosefta implies that the field itself still belongs to the Non-Jew and only the crops themselves were sold to the Jew. This is obvious, because if this was not the case then it would be obvious that the Jew is obligated to leave Peah since the whole field with the crops now belongs to him and it makes no difference who owned that field before. However since the field itself belongs to the Non-Jew we may think that the Jew would be exempt from leaving Peah in this case, because in the verses in the Torah (Vayikra 19:9 and 23:22) that talk about Peah it specifically says פְּאַת שָׂדְךָ, “the corner of your field”, implying that the field must belong to the Jew as well. Therefore the Tosefta teaches us that even though in this case the field belongs to the Non-Jew, since the crops themselves belong to the Jew, he is obligated in leaving Peah.

4. In this case the law follows the same logic that since the Jew does not own the crops themselves, even though he owns the field, he does not have to leave Peah. Obviously, the only possible way for him to leave Peah in such case would be before the sale took place (i.e. he had to not sell some of his crop in order to leave it as Peah), because once the crops were sold he cannot tell the Non-Jew to leave some of them for the poor, because the Non-Jew is not obligated in leaving Peah. The reason why the Tosefta need to teach us this case as well would be for the same reason as was explained in the previous note, that since the Torah implies that the field must belong to the Jew, then maybe we would think that even if only the field belongs to the Jew, but not the crops, he still has to leave Peah somehow.

   The reason that in both of these cases the obligation of Peah follows who ever does the harvest and not whoever owns the field is because the verses in the Torah about Peah (Vayikra 19:9 and 23:22) say וּבְקֻצְרְכֶם, “and when you harvest”, meaning that the law of Peah applies only to the owner of the harvested crops. This supposition overrides the implication from the rest of the verse that says “your field” that the field should be owned by the Jew, because it creates a condition for the commandment of Peah, that Peah takes place only during harvest, by the owner of the harvest.

I posted 1 new article on the Seforim page.

The Tosefta, by Paul Mandel. Chapter 13 from The Cambridge History of Judaism, Vol. 4: The Late Roman-Rabbinic Period, Cambridge University Press, 2006, pp. 316-335.

Originally I wrote at the end of note 4 of Tosefta 2:6:

I was not able to find another suggestion for a reason for this law or come up with my own.

I have changed that to the following:

I would like to suggest a practical reason for this law that does not stem from any verses. The key difference between Peah and Leket is that the minimum and maximum amount for leaving Leket is well defined where as for Peah it is not. Dropped produce is considered Leket if and only if it is either 1 or 2 stalks. If it is 3 stalks or more then it is not Leket and it belongs to the owner. See Mishna Peah 6:5. Therefore when a poor person is in the field collecting Leket he can clearly see whether 1 or 2 stalks have been dropped or more and therefore there is never a doubt in his mind whether the owner intended to leave this produce as Leket or not. However by Peah the minimum amount is not well defined at all and the maximum amount does not exist since technically the owner can leave almost his whole field to be Peah. See above Tosefta Peah 1:1. Therefore the poor person is never really sure whether the produce left in the field as Peah was meant to be as such and can be taken or it still belongs to the owner, thus requiring the poor person to make sure that it was left for him.

I would like to point out that in the above discussion I was really careful to differentiate between Leket and Peah, but not between Shikcha and Peah. Nowhere in Talmudic literature does it say explicitly if Shikcha needs to be specifically designated as such by the owner like Peah or if it becomes Shikcha automatically when the sheath is forgotten regardless of the owner’s intent. Saul Lieberman in Tosefta Kifshuta (on this Tosefta, note 12) writes that Shikcha is just like Leket and it does not require the owner to proclaim it as such. He does not state a source for this statement. Even though based on the reasoning that I just explained that the minimum and maximum amounts by Shikcha are well defined (only 1 or 2 sheaths, but not 3) I am not so sure that it is completely the same in this aspect as Leket. The reason I am skeptical is because the Mishna Peah 5:7 says that if the workers forgot a sheath in the field, but the owner did not forget it himself then it is not considered to be Shikcha. Talmud Yerushalmi (Peah 5:6, Daf 27b) learns out this law from a verse in the Torah. It also adds that not only the owner must be personally aware that he forgot this sheath, but he also must be present in the field during the harvest when this sheath was forgotten. However if he was not present in the field during the harvest and still he said that the sheaths that his workers forgot in the field should be considered Shikcha, they are not considered to be Shikcha and therefore remain in the owner’s possession. The Yerushalmi learns this particular law from a verse in the Torah as well. All of this implies that Shikcha requires a certain amount of intent from the owner. We can even suggest that since the case of the Mishna where the workers forgot sheaths without the owner’s knowledge is really common, then for sure it would be the responsibility of the poor person to go and find out if the owner intended to leave these particular sheaths in the field, since if he does not do so he may end up inadvertently stealing them, because they are not considered to be Shikcha. However it is definitely not like Leket where the owner does need any intent to leave it at all and it becomes Leket as soon as it falls out of the workers’ hands without any knowledge of the owner.