|Tractate Peah, Chapter 2
The owner [of the field]2 should not take [actual fallen stalks that naturally fell during the harvesting process, which are] Leket (fallen stalks)3 [away] from the poor people in order to take [the same amount of produce] from the [regular] sheaths [that have been bundled as a part of the regular harvest and give that produce to the poor instead of the naturally fallen stalks].4 Rebbi Yehudah says,5 “In the morning6 the owner [of the field] needs the say [the following:] ‘Everything that the poor people will take [today] from the [regular] sheaths [that have been bundled as a part of the regular harvest and belong to the owner] should be considered ownerless,’ [in order that the poor people who stole it will not violate the prohibition of stealing].”7 Rebbi Dosa says, “[He should say that] around the evening time8 [at the end of the day and not in the morning].”9 And the Chachamim (Sages) say, “Ownerless [property that was proclaimed as such by the owner] due to coercions [beyond his control10 does not11 become] ownerless,12 because [we can] not [take] responsibility for cheaters [who steal other people’s property and try to prevent them from violating commandments by using legal loopholes].”13
מסכת פאה פרק ב
לֹא יִטּוֹל בַּעַל הַבַּיִת לֶקֶט מִן הָעֲנִיִּים עַל מְנָת לִלְקוֹט מִבֵּין הָעוֹמָרִין. רַבִּי יְהוּדָה אוֹמֵר שַׁחֲרִית בַּעַל הַבַּיִת צָרִיךְ שֶׁיֹּאמַר “כָּל מָה שֶׁיִלּקְּטוּ עֲנִיִּים מִן הָעוֹמָרִין הֲרֵי זֶה הֶפְקֵר”. רַבִּי דוֹסָה אוֹמֵר לְעִתּוֹתֵי עֶרֶב. וַחֲכָמִים אוֹמְרִים [אֵין] הֶפְקֵר אוֹנְסִין הֶפְקֵר, שֶׁאֵין אַחְרָיוּת לָרַמָּאִין.
- The Tosefta states a new law regarding Leket. It is not related to any Mishna.
- Literally: the owner of the house.
- Leket by definition is only produce that the farmers dropped during the harvest. Any other produce that was actually bundled on purpose cannot be added to or substituted for Leket, even if the owner wants to do so as a good will gesture to the poor people.
- Saul Lieberman in Tosefta Kifshuta suggests that the reason the owner would not want to give the poor people the actual stalks that fell and instead offer them stalks from his own produce that he bundled during the harvest, because he does not want the poor people to walk inside his field, because either he simply does not want them to trespass or he still has some crops left in the field and they may trample on top of them. So what he does to avoid this is he does not allow the poor to enter his field, and since they cannot collect Leket he provides them with produce that he specifically set aside from his harvested bundles as a replacement for Leket.
Chazon Yechezkel proposes a different scenario where the owner’s bundles were left in the field and wind blew them apart and mixed them up with Leket that was lying on the ground. So the owner wants to go into the field and pick up his blown apart bundles, but by doing so he inadvertently will end picking up also Leket stalks since everything is mixed up. Then he simply selects some of the stalks from the bundles that he picked up and gives that as Leket to the poor. This explanation is completely wrong, because Mishna Peah 5:1 says explicitly that if the wind blew apart the bundles the owner can recover his bundles and he can just leave as much Leket is would normally fall from that amount of produce on the ground. He does not have worry about which specific stalks were original Leket and which specific stalks were his. The whole idea of Leket is to make sure that the owner leaves something that most people don’t care about for the poor, but not that he takes a heavy loss. It is possible to suggest that Chazon Yechezkel’s explanation goes according to the opinion of Rebbi Meir (see Mishna Peah 4:11) where he says that whenever there is a doubt if something is Leket or not everything is considered to be Leket and has to be given to the poor, even if the owner would take a loss by doing so. However that is not the accepted opinion as Mishna Peah 5:1 clearly indicates and our Tosefta implies that it is going according to the accepted view. Also this case does not fit very well in the text of the Tosefta, because the Tosefta implies that the owner did this exchange on purpose and not by accident during the recovery of his bundles.
- Rebbi Yehudah is not coming to argue on the statement of the Tanna Kama. But rather he adds a new law which says that not only is the owner not allowed to exchange Leket for other produce, but he even must make sure that the poor people do not violate any commandments if they end up taken from the owner’s harvested produce instead of picking up Leket.
- The reason the owner has to do this in the morning is because it has to be done before the poor people take the produce since after they took the produce already the owner is not able to control it in any way and cannot declare it ownerless. This does not mean that the stolen property now belongs to the thief and not to the owner. It still belongs to the owner even though it is in the thief’s possession, however since the owner cannot control what happens to it while it is in the thief’s possession he cannot give it away to someone else by declaring it ownerless. See Talmud Bavli (Bava Kama 68b-69a).
- By taking the produce from the owner’s sheathes and not from the fallen stalks the poor people end up violating the commandment of stealing, since they are not taking Leket which belongs to them, but rather the owner’s produce. Stealing is forbidden by the Torah. See Vayikra 19:11 and 19:13.
I would like to point out that most commentators on the Tosefta explain that the poor people violate a prohibition of eating Tevel (untithed produce) and not stealing, however that explanation is not correct in the Tosefta as I will explain below. Fallen stalks are defined as Leket only if the farmer dropped one or two stalks, however if he dropped three stalks or more then they still belong to the owner and the farmer can pick them up. See Mishna Peah 6:5. Many poor people do not know this law and therefore end up picking up stalks where they can clearly see that three or more stalks fell down. They do not violate the prohibition of stealing, because obviously the owner did not care that three or more stalks fell down and he did not pick them up thus indicating that they can be taken. The Talmudic term for this is Yiyush (giving up), meaning that the owner has given up on that produce and now anyone can take it. However this creates a different problem for the poor people. Leket is exempt from tithes (Maaserot). See Mishna Chala 1:3. However the owner’s produce has to be tithed before it can be eaten. The poor people thinking that it is Leket since they picked it up from the ground end up eating it without taking off the tithes and violate the Torah’s prohibition of eating Tevel (untithed produce). For a detailed description of what tithes are see Tosefta Berachot 6:19, note 3. Rebbi Yehudah holds that it is the responsibility of the owner to prevent the poor people from violating the prohibition of Tevel and therefore he says that the owner must declare all of the produce that will be taken by the poor ownerless, in which case they are allowed to take it and it is exempt from Maaserot, since ownerless produce is exempt from tithes just like Leket. See Mishna Chala 1:3. This explanation was originally proposed by Rashi (Bava Kama 69a, Rebbi Dosa) on the Beraita in Talmud Bavli (Bava Kama 69a) which quotes the argument between Rebbi Yehudah and Rebbi Dosa. However it is obvious that the Beraita quoted by Talmud Bavli is not our Tosefta, but rather a different Beraita, because it does not say that the poor people took from the owner’s bundles and it does not mention the opinion of the Chachamim who explicitly say that the poor people are cheating in this case. That Beraita simply says that the owner must make this declaration because of the actual Leket in his fields. Therefore Rashi was forced to explain that the poor people do not know the laws of Leket and by accident end up picking up the produce which is not Leket and therefore is still obligated in Maaserot. However our Tosefta explicitly says that the poor people are stealing the owner’s produce which they know belongs to the owner since it is bundled by him and therefore there is no way for them to mix it up with Leket, which means that they also know that Maaserot need to be taken from it and therefore that reason cannot apply in the case of our Tosefta. The commentators on the Tosefta did not notice this difference in the Beraitot and therefore applied Rashi’s explanation to the Tosefta, even though it does not make any sense here.
It is important to note that the reason Rebbi Yehudah is capable to says that the owner can declare something ownerless before he knows which specific part of the produce will be taken is because he holds of a concept called Breirah (Selection). The concept of Breirah says that a person can chose a part of the homogenous mixture in his mind and when later on in time some part of the mixture will be separated his intent retroactively falls on that part of the mixture which was physically selected. To illustrate this concept better I will cite the classic example of Maaser that cannot be separated on Shabbat, because it is forbidden to separate Maaserot on Shabbat. A person has barrel of wine from Maaser has not been separated yet and therefore he is forbidden to drink it, because it is Tevel. After the start of Shabbat the person wants to drink some of the wine from the barrel. Due to the concept of Breirah he is allowed to say that whatever part of the wine that he drinks is not the part that he will separate for Maaser after Shabbat, but rather the Maaser always remains in the barrel after he drinks. After Shabbat is over he removes a part of the wine from the barrel for the Maaser and we consider that this removed portion of the wine was originally selected to be the Maaser before Shabbat began. The Maaser portion is assigned retroactively back to the time before he drank from the wine thus making it not Tevel at the time of drinking. Therefore in our case, as well, the owner says that whatever the poor people will take from his produce will be ownerless retroactively from the moment of his declaration in the morning, although the poor people do not take the produce until later in the day. It should be noted that there are other Mishnayot and Beraitot which imply the Rebbi Yehudah does not hold of Breirah. For a discussion of this matter see Talmud Bavli (Bava Kama 69a-b).
- The word לְעִתּוֹתֵי (Leitotei) is very strange. It should not have the letter Yud in it and the phrase should read לְעִתּוֹת עֶרֶב (Leitot Erev). The word עת (Et), time, can have two possible plural forms: עתים (Itim) or עתות (Itot). If the plural form עתים is used then in the double worded phrase the Mem gets dropped and there is a connecting Yud, so the phrase should read לעתי ערב (Leitei Erev). However this seems to be a non-preferred expression, since it is not mentioned in any ancient Hebrew writings. The form לעתות is preferred in a double worded phrase, however it should not get a connecting Yud, which means it should read לעתות ערב (Leitot Erev). I believe that Rebbi Dosa specifically used a plural form of this phrase and not its singular form לעת ערב (Leet Erev) in order to emphasize that he is not assigning a specific time in the evening, but rather any time during the evening is fitting to make this declaration. However, it is completely unclear why he adds a Yud at the end of Leitot. Marcus Jastrow writes in his Dictionary (entry עת) that Leitotei has a special meaning. It does not simply mean “the time of the evening”, because that would be Leet Erev, or “the times of the evening” – Leitot Erev. But rather it means specifically “a time of evening appointments” meaning the time when the work in the field is over and the owner is making accounts of how much money he has to pay to his workers and how much produce was gathered. I do not know where Jastrow got this explanation from, although I have to admit it is very interesting and fits very well into the Tosefta. I have chosen to translate it “around the evening time” in order to emphasize the plural usage of the word Et as I explained above, but not assigning any specific meaning to the Yud in the end of the word Leitotei.
- Minchat Yitzchak explains that the reason that Rebbi Dosa says that this declaration has to be said in the evening, after the poor people already took the produce, and not in the morning, is because he is trying to protect the owner from taking a heavy loss. If the owner would make all produce that the poor will take ownerless, and the poor people will know about that, then they will take much more than the normal amount they take as Leket since whatever they will take will not be considered stolen anyway. As a result the owner will lose a significant portion if his crops. Therefore Rebbi Dosa recommends that he should say this in the evening after the poor already took as much as they took, thinking that it is Leket, and therefore not exceeding the normal amount. According to this explanation Rebbi Dosa’s statement is more of a suggestion than a law, since the owner could say it in the morning also if he is willing to take the risk of losing more crops.
From Talmud Bavli (Bava Kama 69a) it seems that the reason for Rebbi Dosa’s opinion is different. Rebbi Dosa does not allow this proclamation to be said in the morning, because he does not hold of the concept of Breirah, which is required for the proclamation to work. Since the owner does not know which produce will be taken by the poor people he cannot make that specific produce Hefker without coming on to using the idea of Breirah.
The obvious question with Rebbi Dosa’s opinion is how does he deal with the problem that in the evening the produce is not in the owner’s possession anymore which means that he cannot declare it Hefker, as was mentioned above in note 6? The Meiri (Bava Kama 69a, Af Leinyan Hefker) resolves this problem by saying that since this law is of rabbinical origin, Rebbi Dosa holds that the Rabbis must have made a special exception in this particular case and allowed the owner to make something Hefker that is not in his possession in order to save the poor people from violating the prohibition of theft. Another possible explanation is that the law that the owner cannot change the status of his ownership to an object which is not in his possession, such as making it Hefker or Hekdish (concentrated to the Temple), is not a universal law, and there is a dissenting opinion of the Tznuin (pious people) who do not hold that such a law exists altogether. See Talmud Bavli (Bava Kama 68b). It is possible that Rebbi Dosa would hold like their opinion and therefore this issue of the produce not being in the owner’s possession anymore does not exist.
- The word אונס (Ones) is often translated as “accident” however in this case it would not be an accurate translation, because the owner did not do accidentally, but rather he was forced into it by a rabbinical law. The main connotation of the word Ones is something that happens beyond the person’s control, which could be an accident or a coercion by an outside force. Therefore I have chosen to translate it in this case as “coercion”.
- The word אין (Ein), meaning “not” does not appear in any Tosefta manuscript. It only appears in a similar Beraita quoted in Talmud Yerushalmi (Sukkah 4:2, Daf 18a and Maaser Sheni 5:1, Daf 29a). Without emending the reading in the Tosefta with the word “not” the opinion of the Chachamim does not make any sense as was already pointed out by many commentators. Therefore I have added it in square brackets in the Hebrew text.
- The Chachamim hold that a person can only declare something ownerless out of his own free will and he cannot be coerced into it even if the coercion comes from a legitimate legal power such as a court. The court only has power to confiscate someone’s property but it cannot force the person to declare his own property ownerless if the person does not want to do so.
- The Chachamim clarify their ruling that besides the fact that this proclamation cannot work, it is also not necessary, because it is not the responsibility of good people to go out of their way and try to prevent cheaters from sinning by using legal tricks. The Chachamim do not mean that in general people should never prevent others from doing bad things, but rather it should be done directly by preventing the people’s bad actions from taking place. However once the bad action has taken place anyway the good person does not have to perform legal tricks in order to justify the bad action and this way prevent the bad person from a violation of the law.