|Tractate Peah, Chapter 2
Tosefta 91[If] a Jew and a Non-Jew were partners in standing crops,2 [then] the portion of the Jew is obligated [in Peah] and the portion of the Non-Jew is exempt [from Peah].3 Rebbi Shimon4 says,5 “[If] a Jew and a Non-Jew were partners in standing crops, [then everything (i.e. both portions)] is exempt [from Peah].6 [However,] when [do we say that everything is exempt from Peah]? At the time when the Non-Jew protests [that they should leave a part of the crops as Peah for the poor],7 but when the Non-Jew does not protest, [about leaving some crops as Peah for the poor then everything] is obligated [in Peah].”8
מסכת פאה פרק ב
יִשְׂרָאֵל וְגוֹי שֶׁהָיוּ שׁוּתָּפִין בַּקָּמָה חלקו של ישראל חייב וחלקו של גוי פטור. רבי שמעון אומר יִשְׂרָאֵל וְגוֹי שֶׁהָיוּ שׁוּתָּפִין בַּקָּמָה פָּטוּר מִן הַפֵּאָה. אֵימָתַי? בִּזְמָן שֶׁהַגּוֹי מְמָחֶה אָבָל אֵין הַגּוֹי מְמָחֶה חַיָּיב בַּפֵּיאָה.
- 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.
- I.e. they owned all of the crops in a field as partners.
- 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. 1/60th 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. 1/60th 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.
- 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.
- 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.
- Even the crops that technically belong to the Jew.
- 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.
- 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).