Tractate Peah, Chapter 3
Tosefta 101 – Part 2
Rebbi Yossi says, “Chananyah, the son of the brother of Rebbi Yehoshua says,10 ‘Any [type of produce] where the property of the poor person (i.e. some kind of gift to the poor) can come in the middle [of two sets of produce, one standing and one detached, both of which are one Seah in volume], for example grain and vineyard, does not combine [to form two Seahs and therefore both parts are still considered to be Shikcha]. However, any [produce] where the property of the poor person (i.e. some kind of gift to the poor) cannot come in the middle [of two sets of produce, one standing and one detached, both of which are one Seah in volume], for example fruits of a tree, does combine [to form two Seahs and therefore both parts are not considered to be Shikcha].’”11, 12
מסכת פאה פרק ג
תוספתא י – חלק ב
ר’ יוֹסֶי אוֹמר, חֲנַנְיָה בֶּן אֲחִי רבי יהוֹשעַ אוֹמר, כָּל שֶׁבָּאת רְשׁוּת עָנִי לָאֶמְצָע כְּגוֹן הַתְּבוּאָה וְהַכֶּרֶם אֶין מִצְטָרְפִין, וְכָל שֶׁלֹּא בָּאת רְשׁוּת עָנִי לָאֶמְצָע כְּגוֹן פֵּירוֹת הָאִילָן הֲרֵי אֵילּוּ מִצְטָרְפִין.
Rebbi Yehoshua is Rebbi Yehoshua Ben Chananyah, the student of Rabban Yochanan Ben Zakkai, who lived in the 1st century CE during the destruction of the first Bet Hamikdash and immediately after during the Yavneh era. Rebbi Yossi, who is Rebbi Yossi Ben Chalafta, was student of Rebbi Akiva, which puts him in the 2nd century CE, two generations after Rebbi Yehoshua, and one generation after Rebbi Yehoshua’s nephew, Chananyah. It is interesting to note that Rebbi Yehoshua’s nephew, Chananyah, was most probably named after his grandfather (Rebbi Yehoshua’s father), who was also Chananyah.
The Tosefta seems to disagree with the Mishna regarding Rebbi Yossi’s opinion in two ways. One is that in the Mishna Rebbi Yossi holds that the law of two sets of crops of one Seah each not combining into two Seahs when divided by produce that for sure belongs to the poor applies to all kinds of produce including grain, fruits and vegetables. But Rebbi Yossi in the Tosefta seems to hold that this law applies only to grain and grapes, but not to other fruit trees. Since vegetables are not mentioned in his statement in the Tosefta we do not know if the Tosefta argues regarding vegetables or not. Second, in the Mishna Rebbi Yossi clearly implies that the poor person’s produce divides the two sets of forgotten produce of one Seah each only if it is physically present, but if it is only possible to be present, but in reality it is not there then Rebbi Yossi holds that they do combine to form two Seahs thus disqualifying them from being considered Shikcha. But in our Tosefta Rebbi Yossi seems to imply that the mere possibility of the existence of the poor person’s produce in between the two sets of forgotten produce of one Seah each would prevent them from combining together to form two Seahs, even if the poor person’s produce is not physically present. Only in the case where it is impossible for poor person’s produce to be present (according to Rebbi Yossi’s opinion due to its inapplicability) in between the two sets of forgotten produce of one Seah each, such as by fruit trees, do the two sets of one Seah each combine to form two Seahs thus disqualifying this produce from being Shikcha.
Rash Mishantz (Mishna Peah 6:9) explains based on the Yerushalmi (Peah 6:6) that the Tosefta simply explains Rebbi Yossi’s opinion in the Mishna and does not argue on it. Based on that he explains further that the reason Rebbi Yossi differentiates between grain and a vineyard as opposed to fruit trees is because by grain there is Leket and by a vineyard there is Peret, both of which are fallen produce that belong to the poor. However, by fruit trees the only gifts to the poor are Shikcha and Peah and for whatever reason (he does not explain) they do not constitute enough of the poor person’s property to create a division line between the two sets of forgotten produce. Later commentators all try to explain why Leket constitutes the poor person’s property that is enough to create a division, but Shikcha and Peah do not. See Tosafot Yom Tov (Mishna Peah 6:9, Im Baat Reshut Haani Baemtza), Pnei Moshe (Talmud Yerushalmi, Peah 6:6, Daf 30b, Rebbi Yossi Omer) and Higayon Aryeh (Tosefta Peah 6:9, note 59). To me none of their explanations are satisfactory. I would like to propose my own explanation to that issue.
As I already explained above (Tosefta Peah 1:13, note 7, 2:6, note 4, and 2:19, note 8 ) there is a key difference between Peah and all other gifts to the poor. Peah cannot be collected by the poor until the owner grants them permission to do so. Shikcha, although it belongs to the poor as soon as it is forgotten by the farmer, practically cannot be collected by the poor until the farmers actually leave the field, because as long as the farmers are their collecting the sheaves or fruit the poor have no way of knowing if a particular sheaf is forgotten or the farmer simply did not get to it yet. Therefore this leaves Leket, Peret and Olelot (incompletely formed grape clusters) as the only gifts to the poor which the poor can collect while the farmers are still working in the field. Therefore, according to the Rash Mishantz, Rebbi Yossi feels that we can say that the poor have sufficient property in the farmer’s field to create the necessary division between sets if that property can be claimed by them while the farmers are still working in the field, and that can exist only by grain and grapes, since they are the only ones that have Leket, Peret and Olelot. Shikcha and Peah, do not constitute such powerful property of the poor to create this division, since the poor are at the mercy of the farmers to collect these gifts, since either they need the farmer’s permission as in the case of Peah, or at least they have to wait for the farmers to leave the field as in the case of Shikcha. And therefore by fruit trees there is only Shikcha and Peah, and not Leket, Peret and Olelot, according to Rebbi Yossi this division of property cannot occur.
You may wonder that my explanation is irrelevant at least with regard to Shikcha, because Rebbi Yossi is talking about a case where the poor already went into the fields to collect Shikcha, which means that the farmers already left the field, and therefore my whole idea of Shikcha not being a powerful enough property due to its limitation on poor people’s capability of taking it right away does not apply. The response to that is simple. Rebbi Yossi is not talking about an actual physically present divider. He is merely considering a concept of such property being possible, since he does not require the actual divider to be there as it is clear from the wording of the Tosefta. And therefore it does not matter that he is talking about a case where the farmers already left the field. All that matters is that in general, conceptually, the poor people’s possession of Shikcha is weaker than their possession of Leket, Peret and Olelot, and that is enough of a theoretical difference to leave out these gifts to the poor from being able to be such a divider.
As I pointed out earlier that it is possible that the Mishna and the Tosefta argue regarding Rebbi Yossi’s opinion, and not like the Rash Mishantz explained that the latter explains the former. In that case the Rash Mishantz’s explanation with my clarification is still valid for the Tosefta’s version of Rebbi Yossi’s opinion. As for the Mishna’s version this explanation is not necessary since Rebbi Yossi there is talking about a physical, not a theoretical divider, and he does not differentiate between fruit trees and other produce, which means that he holds that any gift to the poor can constitute a physical divider, and not just Leket, Peret and Olelot.
It should be noted that in the Erfurt manuscript the statement of the Tosefta is reversed and it says that the produce combines only by grain and vineyard, but by fruit trees it does not combine. That contradicts the Mishna and also does not really make sense, so it seems to me that it is a copyist’s mistake. I have quoted the text as it appears in the Vienna manuscript.
Rebbi Yossi’s statement in the second half of the Tosefta is a new law which is a variation of his opinion stated in Mishna Peah 6:9. The only reason I have included it into this Tosefta is because I am following the numbering system from the Vilna Tosefta edition, where it is included into this Tosefta, but otherwise it could have been a separate Tosefta.
Mishna Peah 6:6 states that if the farmer forgot a sheaf which is two Seahs (see above Tosefta Peah 2:13, note 7) large then it is not considered to be Shikcha, because the amount forgotten is so large, and the farmer can go back and take it. Mishna Peah 6:7 states the same law applies to forgotten standing crops. Mishna Peah 6:9 states that if the farmer forgot one Seah of detached crops (i.e. a sheaf or a gavel) which lying right next to one Seah of standing crops then they do not combine together to form to Seahs of forgotten crops, and therefore both parts are considered to be Shikcha and can be taken by the poor. The Mishna says further that this law applies not only to grain, but also to fruit trees, garlic and onions (i.e. all vegetables). Rebbi Yossi argues on the Tanna Kama and says that these crops are only considered to be Shikcha if the two Seahs of detached and standing crops are separate in the middle by other forgotten crops that are definitely considered to be Shikcha (i.e. less than two Seas in volume), however, if the two sets of crops of one Seah each are simply located next to each other without anything that for sure belongs to the poor dividing them in the middle then they do combine to form two Seahs of forgotten crops and therefore they are not considered to be Shikcha due to being too large of an amount and the farmer can go back and take it for himself. Our Tosefta quotes Rebbi Yossi’s opinion in the name of another Tanna and significantly changes it from what is quoted in the Mishna.