|Tractate Peah, Chapter 2
We2 do not confiscate [priestly gifts] from a Kohen (priest) that belong to [another] Kohen3 and [we do] not [confiscate Levite gifts] from a Levi (Levite) that belong to [another] Levi.4,5
מסכת פאה פרק ב
.אֵין מוֹצִיאִין לֹא שֶׁל כֹּהֵן מִכֹּהֵן וְלֹא שֶׁל לֵוִי מִלֵּוִי
- 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.
- “We” is meant here as the big we referring to the Bet Din (court) who would enforce this law.
- 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.
- 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.
- 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.