|Tractate Peah, Chapter 2
Tosefta 171[Grain seeds that were brought in by the ants2 inside] ant holes3 are forbidden [to be taken by the poor people as Leket (fallen stalks)] due to [the prohibition of] theft [from the owner].4 But if the owner proclaimed them (i.e. the grain kernels and stalks inside the ant holes) to be ownerless they are permitted [to be taken by the poor people] because [then the prohibition] of theft [does not apply to them, since they are ownerless and do not belong to anyone].5 Rebbi Shimon Ben Elazar says, “If they (i.e. ant holes) were damaged6 [when the poor people came to them, then all of the seeds that are still left inside them] are forbidden because of [the prohibition of] theft [since we assume that the owner damaged the holes himself in order to get out the produce stored inside it and he still wants to come back and take what remains in there].”7
מסכת פאה פרק ב
.חוֹרֵי נְמָלִים אֲסוּרִין מִשּׁום גָּזֵל, וְאִם הִפְקִירָן בַּעַל הַבַּיִת מוּתָּרִין מִשּׁוּם גָּזֵל. רבי שִׁמְעוֹן בֶּן אלעזר אוֹמר אִם הָיוּ נְזִיקִין אֲסוּרִין מִשּׁוּם גָּזֵל
1. Mishna Peah 4:11 states that grain that was collected by ants and brought by them inside their holes is sometimes considered to be Leket and sometimes not. The Mishna clarifies that it depends on whether these holes are located in the area where above ground the grain is still standing or if it has been already harvested. If the holes are in the area where the grain is still standing then everything inside those holes belongs to the owner just like the standing grain around those holes, but if the holes are in the harvested area then the grain inside the ant holes is considered to be Leket just like the grain that is left lying in that area of the field above ground. Our Tosefta argues on the Mishna in terms of the conditions of the locations of these holes. The Tosefta argues that it does not matter in which area of the field the holes are located, and by default we always assume that the owner wants to keep the grain inside ant holes for himself, unless he specifically said that he does not care about it and anyone who wants can take it.
It may seem really strange to a person from a developed country in the 21st century why it would be important to discuss the legality of grain inside ant holes. Why would anyone care about grain that was taken by ants? It is probably a small and insignificant amount. In order to dispel this question I would like explain right away the living conditions of the 3rd century CE when the Tosefta was written. In the 3rd century CE the financial situation of the Jews of the Land of Israel was very dire. There have been a few very harsh famines and at the same time very heavy taxation by the Roman authorities. It was so bad that many farmers were forced to abandon their fields and move to other areas of the country or even outside it where the taxation was not as heavy, because they simply could not produce enough grain to pay the taxes, not even mentioning making a profit from the grain sales. Many farmers abandoned their fields and farming completely and took on other jobs. In such an environment every farmer was very meticulous about keeping every small bit of his harvest, even if that meant that he had to dig up ant holes and take grain from there. Also it needs to be pointed out that the amount of grain inside ant holes is not that little as I will explain in note 3 below. For a detailed analysis of the living and financial conditions of the 3rd century CE Land of Israel and proofs and sources for my summary see Daniel Sperber, “Roman Palestine, 200-400, The Land.”, Bar-Ilan University, 1978, where he discusses all of the details of life that I have mentioned.
2. As I already mentioned above in Tosefta Peah 1:10, note 17, ants that are mentioned in the Tosefta are harvester ants of the genus Messor, which are the most common ants in Israel. These ants’ main food source is grain of which they can collect vast amounts.
3. A single Messor harvester ants’ colony can take up a very large area of the field and may contain many entrances above ground spaced several meters apart from each other. Within such a colony there could be any number of ant trails but research (Claire Detrain, Olivier Tasse, “Seed drops and caches by the harvester ant Messor barbarus: do they contribute to seed dispersal in Mediterranean grasslands?”, Naturwissenschaften, 2000, 87:373–376) has shown there could be even 75 such trails within one colony. Each trail, up to 30 meters in length, can last for an average of 5 days after which the ants stop going on it and make a new trail. While the trail exists it has been estimated that ants carry on it about 50,000 seeds. Based on this research we can extrapolate a rough estimate of how much grain can the farmer retrieve by digging up a Messor harvester ant nest that was collecting grain for 1 month from a field assuming that the ants did not eat any of the grain while they were collecting it.
50,000 seeds per trail / 5 days = 10,000 seeds per day per trail
75 trails * 10,000 seeds per day per trail = 750,000 seeds per day per nest
750,000 seeds per day per nest * 30 days = 22,500,000 seeds
One seed of wheat weighs approximately 50 mg (0.00005 kg)
22,500,000 seeds *0.00005 kg = 1125 kg
That is over 1 ton of wheat seeds, which is a huge number. Obviously the farmer would not be able to retrieve all of it, but even if he succeeds in retrieving 10% (roughly 100 kg in our example) of the grain collected by the ants he can gain a very significant amount of grain that would be otherwise lost. You may wonder how significant a 100 kg of wheat is. According to Food and Agriculture Organization of the United Nations (FAO) the supply quantity of wheat in Israel in 2007 was 113.84 kg/capita/year.(http://faostat.fao.org/site/609/DesktopDefault.aspx?PageID=609#ancor, accessed on 06/10/2010) In other words, 100 kg of wheat can feed one person for a whole year. In poor conditions of the 3rd century CE Land of Israel such an amount of grain could mean the difference between eating well and starving.
Harvester ants’ hole.
4. In other words, according to the Tosefta the farmer is entitled to keep all of the grain collected by ants, unless he specifically says otherwise as will be stated in the next statement of the Tosefta. It seems to me that this was a special Rabbinical enactment that was made to protect the farmers from starving. As I already mentioned in note 1 the Mishna argues on the Tosefta and says that this would depend on where the ant holes which the farmer wants to dig up are located. I would like to suggest that there is a very specific reason why the Tosefta argues on the Mishna. The Mishna was written about 50 years earlier than the Tosefta, roughly in the year 220 CE. At that time the living conditions in the Land of Israel were better than in the second half of the 3rd century CE. Sometimes in the middle of the 3rd century CE the Rabbis changed the law from that of the Mishna to that of the Tosefta. The reason they passed this new enactment is clearly to protect the struggling farmers. This indicates that ants’ seeds were originally considered to be Leket only by a Rabbinical decree and not by Torah law. Clearly the Torah only obligated the stalks dropped by the farmers as Leket and not something that was taken by ants. A further proof that the law of the Tosefta was passed after that of the Mishna is that in the Mishna the law is disputed by Rebbi Meir, where as in the Tosefta it is disputed by Rebbi Meir’s student, Rebbi Shimon Ben Elazar. Rebbi Meir flourished during the first half of 2nd century CE, where as Rebbi Shimon Ben Elazar was active during the second half of the 2nd century CE when the conditions started to rapidly deteriorate. This shows that the discussion of this law took place sometimes during the end of the 2nd century CE, but it was not cemented into law by the Tosefta until the end of the 3rd century when this law was critical to protect the farmers. For a detailed analysis of how the living conditions of the Land of Israel deteriorated as the 2nd and 3rd centuries CE went on, see Daniel Sperber, “Roman Palestine, 200-400, The Land.”, Bar-Ilan University, 1978.
5. It seems to me that the reason the Tosefta says that the poor people do not violate the prohibition of theft in the case when the farmer declared the ants’ seeds ownerless, as opposed to saying it belongs to the poor people, was because it wants to emphasize that no matter what these seeds are not considered to be Leket. They either belong to the owner, or the owner made them ownerless and now they can be claimed by anyone. But they do not belong specifically to the poor people as a gift to the poor, because ants’ seeds are not considered by the Tosefta to be the same as a gift to the poor, forgotten or dropped by the owner, as was held originally, as recorded in the Mishna.
6. There is a great deal of controversy in the commentators on the Tosefta as to what the correct reading here should be. There are at least four possible readings in Rebbi Shimon Ben Elazar’s statement. I have quoted in the main text the reading from the Vienna manuscript which says נְזִיקִין (Nezikin), “damaged”. In the Erfurt manuscript the reading is נקררן גזוזין (Nikraran Gezuzin), which is not clear what the words mean here exactly. In the printed editions of the Tosefta the reading is פיקדון (Pikadon), “deposit”. And finally the Nuschaot Ktav Yad in the Vilna Talmud Bavli edition of the Tosefta quotes a forth reading which says נקברין גזוזין (Nikbarin Gezuzin), “buried and sheared”, which is also not clear in its meaning. Due to the obscurity of Rebbi Shimon Ben Elazar’s statement every commentator on the Tosefta provided his own interpretation of what he thinks it means and tried to force various words into it. Minchat Bikkurim went as far as to say that Rebbi Shimon Ben Elazar’s whole statement does not make any sense and should be deleted. However none of the commentators prefer the reading of the Vienna manuscript for unspecified reasons and do not discuss it. I have chosen that reading, because it makes most sense to me in the Tosefta and it also does not require forceful conjugation and interpretation of the actual words in this statement. The text flows freely with the word Nezikin in it, as long as it is placed in proper context.