Archives for April 2010

Tractate Peah, Chapter 2 Tosefta 101 [If] a convert2 died [without leaving any relatives who can inherit his property] and Jews distributed his property [between themselves,3 then] whoever acquired [his field itself (i.e. the land)4 and the produce] that is attached to the ground [inside that field] is obligated in everything (i.e. all gifts to the poor and tithes),5 [whoever acquired the produce] that is detached from the ground, [but not yet piled] is exempt from everything (i.e. from all gifts to the poor and tithes),6 [and] whoever acquired the standing crops, [but not the field itself] is exempt from Leket (fallen stalks), from Shikcha (forgotten sheaths) and from Peah (corners of the field), but is obligated in Maaserot (tithes).7

מסכת פאה פרק ב תוספתא י גר שֶׁמֵּת וּבִזְבְּזוּ יִשְׂרָאֵל אֶת נְכָסָיו: הַמַּחֲזִיק בַּמְּחוּבָּר לַקַּרְקָע חַיָּיב בַּכֹּל, בַּתָּלוּשׁ מִן הַקַּרְקָע פָּטוּר מִן הַכֹּל, הֶחֱזִיק בַּקָּמָה פָּטוּר מִן הַלֶּקֶט מִן הַשִּׁכְחָה וּמִן הַפֵּאָה וְחַיָּיב בַּמַּעַשְׂרוֹת.

Notes:

1. The Tosefta states a new law regarding gifts to the poor. It is not related to any Mishna.
2. The word written in the Vienna manuscript is גוי (Goy), which means “Non-Jew”. However that is not correct, because in Talmudic literature the Non-Jew is never used as an example of someone who lived in the Land of Israel and died without any relatives to inherit him. However a convert (Ger) is the classical example of such a case, because in the Land of Israel during the Talmudic times, a lot of Non-Jews who converted to Judaism came from another country and all of their relatives remained in the country of origin. The only relatives who would be able to inherit a convert would be his Jewish wife and children and if the convert never got married in Israel after his conversion then he would essentially be alone. It is also possible that the Non-Jewish relatives of the convert were not allowed to inherit him, because they were not considered his relatives anymore after his conversion. However I am not sure if this law was universally accepted at the time of the Tosefta. See Talmud Bavli (Yevamot 48b) where Tannaim argue about the status of the convert being like a newborn baby or not after his conversion, which essentially severs his ties to his blood-relatives, and also Talmud Bavli (Bechorot 47a) where Rav Yochanan and Reish Lakish continue to argue about the same question. Both of them lived during the middle of the 3^rd century CE already after the Tosefta has been completed and therefore it is clear that even by then it was not universally accepted whether the Non-Jewish relatives of a convert  inherit him after his death or not.I would like to suggest that the reading גוי (Goy) in the Vienna manuscript is actually an error that occurred from another manuscript where it was written גר (Ger) and then the vertical line of letter Reish (ר) cracked, which made it look like two separate letters, Vav (ו) and Yud (י), spelling the word גוי (Goy). The copyist not realizing that it is a defect simply copied what he saw and as a result of that the word Goy crept into some manuscripts. Therefore I have decided to keep the reading of the Erfurt manuscript, which is גר (Ger), meaning “convert”.
3. By Jewish law, when a person dies without any relatives to inherit him all of his property automatically becomes Hefker (ownerless) and anyone who acquires that property by performing some kind of an act of acquisition (Kinyan) becomes its new owner, on a first come first serve basis. See Mishna Bava Batra 4:9 where the Mishna just assumes this rule to be true. The source for this rule is unknown, although it might just stem from logic that since there was no set government office in the ancient world that takes ownership of ownerless property it simply remains ownerless and can be taken by anyone who wants to do so. A similar concept existed in Roman law, known as Caduca, which essentially was property left by a person who died without any kind of heirs. Such property became public property or from the reign of Emperor Caracalla became the property of the Caesar, known as Fiscus. See Sir William Smith, A dictionary of Greek and Roman antiquities, 2^nd edition, Little, Brown, and Co., 1859, entry Bona Caduca, p. 206. The Rabbis have never made any kind of a special decree that would make such property transfer over into the possession of the king, the court or anyone of greater authority, and therefore the law remained as dictated by logic that such property becomes ownerless and can be acquired by anyone on first come first serve basis. For various types of Kinyanim (acts of acquisition) on different types of property see Mishna Kiddushin 1:2-5.
4. The Tosefta does not say that he acquired the land itself and implies that he only acquired standing crops. However if that was the case then this case and the last case of the Tosefta would both mean exactly the same thing. Therefore all commentators agree that the first case of the Tosefta must mean that he acquired both the field and the standing crops, where as in the last case he only acquired the standing crops, but not the field. It should also be noted that a similar Beraita is quoted in Talmud Yerushalmi (Kiddushin 1:5, Daf 12a) and there it says that the first person who “acquired the land” is obligated in everything. Chazon Yechezkel proposes that the reading in this Tosefta should be changed to read like the Beraita in the Yerushalmi, since that is what it means anyway, however I think that it is unnecessary, especially when it is clear that the Yerushalmi is quoting a different Beraita and not this Tosefta, because it says that in the case when the person acquired just the standing crops he is obligated in Leket Shikcha and Peah, but is exempt from Maaserot, which is the opposite of what our Tosefta says. The reading in all Tosefta manuscripts, printed editions as well as quoted in the Rishonim (Medieval Commentators) (see Rash Mishantz on Mishna Peah 1:6) is as I have written it above in the main text.
5. Since the person acquired both the field and the produce that is growing in the field he is obligated in all gifts to the poor (i.e. Leket, Shikcha and Peah) and in Maaserot as well, as any other regular owner of the field would. Obviously the gifts to the poor themselves are exempt from Maaserot as is mentioned in Mishna Chala 1:3. But all the produce that the owner collects for himself is obligated in all tithes.
6. If a person acquired detached produce regardless if it was bundled up then he is exempt both from all gifts to the poor and from Maaserot, but for different reasons. The reason he is exempt from gifts to the poor is because the obligation to leave the gifts to the poor occurred during the harvest as implied from the verses in the Torah as I already explained earlier in Tosefta Peah 2:8, note 4. Since during the harvest the crops were owned by the convert he was the one who was obligated in leaving the gifts to the poor. Whether he actually left them or not is irrelevant for the new owner. Since the new owner acquired these crops already after they have been harvested he is exempt from leaving all of these gifts.The reason that the new owner is exempt from Maaserot is a lot more complex. For a detailed description of what tithes are see Tosefta Berachot 6:19, note 3. Generally, the produce remains Tevel (untithed produce), and therefore forbidden for consumption, forever until someone removes all of the tithes from it. The obligation of removing the tithes comes when the farmer performs an action which signifies the end of the harvest, such as the farmer piled up the produce, whether in the field or in the silo, or simply brought it inside his house. See Mishna Maaserot 1:5. It is not clear from the Tosefta’s language if is talking about produce which has been piled and its harvesting process has been completed, or if it is talking about bundles that have been  left in the middle of the field and have not yet been piled up. In either case, this law is hard to understand, because the produce should be obligated in Maaserot regardless of when it was taken. If the bundles have not been piled yet then when the new owner piles them he essentially makes this produce obligated in Maaserot from that point on, and if it was the convert who piled them already, then this produce should have become obligated in Maaserot then, and the new owner simply has to remove the Maaserot from the Tevel produce.

   Before I explain what exactly the Tosefta’s opinion is I would like to digress a little and mention the opinion and explanation of this law based on the Beraita quoted in Talmud Yerushalmi (Kiddushin 1:5, Daf 12a), because it will better illustrate the significance of the Tosefta’s opinion. This issue is discussed by the Rash Mishantz in his commentary on Mishna Peah 1:6 and is further expanded upon by Rav Yisrael Yehoshua Trank in his book on the Rambam’s Mishneh Torah called Yeshuot Malko (Hilchot Terumot 2:11). The Rash, as explained by Yeshuot Malko, proposes various possible conditions for the case when the produce that used to be ownerless and then was acquired by someone is exempt from Maaserot. His main explanation is that if the field itself was ownerless while the harvest took place then the harvested produce would be exempt from Maaserot. Unfortunately this explanation does not fit into the case of our Tosefta, because the Tosefta implies that this detached produce was harvested by the convert while he was still alive and therefore at the time of the harvest the field was not yet ownerless. The other possible explanation is that the convert left the harvested produce lying in the field and did not pile it yet when he died. Therefore when the new owner acquires it, it comes from an ownerless field, but it did not become obligated in Maaserot yet, because it has not been piled up. Since it was acquired from an ownerless field it never becomes obligated in Maaserot. The Rash proposes various reasons why produce acquired from an ownerless field is exempt from Maaserot according to various opinions of understanding of the nature of ownerless property. Some of them are based on logic and some are derivations from verses in the Torah. It should be noted that not all of these reasons can be applied to the opinion of this Tosefta, since some of them are not only applicable to non-ownerless produce from an ownerless field, but also to ownerless produce from a non-ownerless field. Since the Tosefta clearly says in its third case that if the person only acquired the standing crops which are still attached, but did not acquire the field itself he is still obligated in Maaserot, it is clear that the Tosefta holds that the fact that the field itself is ownerless does not exempt the produce from Maaserot as long as the produce was harvested after the field became ownerless. Our Tosefta holds that the only time the produce is exempt from Maaserot is when it was harvested before the field became ownerless, but did not become obligated yet in Maaserot because it has not been piled. In other words, it appears that the Tosefta requires two conditions to be true in order for produce to be exempt from Maaserot: 1) it came from an ownerless field, and 2) it became ownerless after it was already harvested. The Rash himself quotes our Tosefta and writes that he does not have an explanation for it, because no matter how you learn it one of its conditions gets contradicted as I already illustrated. He concludes that the text of the Tosefta must be incorrect and the correct version is in Talmud Yerushalmi (Kiddushin 1:5, Daf 12a), which I already mentioned in note 4, where the 3^rd case is reversed and it says that the person who just acquires standing crops is obligated in gifts to the poor, but is exempt from Maaserot. The Rash concludes that that Beraita is consistent with the logic that any produce that was acquired from an ownerless field, regardless if it was still attached to the ground and needs to be harvested or was already harvested, but not yet piled, it is exempt from Maaserot since it comes from an ownerless field.

   Despite all of the above problems I would like to propose an explanation for the law of Maaserot in our Tosefta without changing it. Mishna Chala 1:3 explicitly says that ownerless produce is exempt from Maaserot, but it does not explain exactly when that happens or why. Mishna Maaserot 1:1 also implies that Hefker produce is exempt from Maaserot because it says that only produce that is “watched” by someone (i.e. someone cares about it) is obligated in Maaserot, meaning that it has to belong to someone. Our Tosefta obviously agrees with that law, but it has a very specific set of conditions of when that exemption can occur. The Tosefta does not require the field to be ownerless at all, as the Rash assumed. After all it never says that. In fact according to the Tosefta it makes no difference what the status of the field itself is. It could be owned by someone or be ownerless. All the Tosefta cares about is when the new owner acquired the produce. As long as the owner acquired the new produce before it was harvested it is obligated in Maaserot as is the situation in the first case and in the third case of the Tosefta. However if the produce became ownerless after it was harvested, but before it became obligated in Maaserot (i.e. it was cut off from the ground, but not yet piled) then it becomes exempt from Maaserot due to becoming ownerless after the harvest. According to the Tosefta, ownerless produce is exempt from Maaserot only if it was ownerless right after the harvest, but before the obligation of the Maaserot took place. You may wonder why the Tosefta holds that only in this case.  The explanation is as follows. The Tosefta holds that the produce cannot be ownerless during the harvest itself because as soon as someone harvests it it belongs to that person. The act of cutting the produce off constitutes a Kinyan (act of acquisition) and there it does not matter if the produce was ownerless while it was attached to the ground. As soon as it is harvested it is not ownerless anymore. If the produce was already piled and became ownerless after that then it is still obligated in Maaserot, because once it becomes obligated in Maaserot it remains so forever until the tithes are removed. That leaves only one possible case when ownerless produce can become exempt from Maaserot, and that is the produce became ownerless while it was is lying untouched after it has been harvested, but before it was piled. Since it did not become obligated in Maaserot yet, it is exempt from them due to being ownerless. The reason why ownerless produce is exempt from Maaserot is derived from the verse in the Torah by Rav Yochanan in the name of Rebbi Yanai in Talmud Yerushalmi (Maaserot 1:1, Daf 1b). The Torah says with regard to Maaserot (Devarim 14:29):

   וּבָא הַלֵּוִי כִּי אֵין לוֹ חֵלֶק וְנַחֲלָה עִמָּךְ, וְהַגֵּר וְהַיָּתוֹם וְהָאַלְמָנָה אֲשֶׁר בִּשְׁעָרֶיךָ, וְאָכְלוּ, וְשָׂבֵעוּ, לְמַעַן יְבָרֶכְךָ יְהוָה אֱלֹהֶיךָ, בְּכָל מַעֲשֵׂה יָדְךָ אֲשֶׁר תַּעֲשֶׂה.

   And the Levite would come, because he does not have any share or inheritance with you, and the convert, and the orphan, and the widow who are in your gates, and they will eat and be satisfied, so that Hashem, your God may bless you in all of the deeds of your hand that you may do.”

   Rav Yochanan explains that the verse teaches us that the farmer has to give the Levi (Levite) the tithe from something that he otherwise cannot have. However, ownerless produce as well as gifts to the poor the Levi can just come and take them and it is not something that he is not able to get without the farmer specially giving it to him. Therefore all of the gifts to the poor as well Hefker are exempt from Maaserot. Obviously this reason is universal regardless of how we limit the exemption of ownerless produce from tithes. Therefore the Tosefta would agree with this reason as well as the Yerushalmi itself even though they have opposite views regarding what type of ownerless produce is exempt and what type is obligated in tithes.

7. According to the Tosefta, produce that was acquired by the new owner while it was still standing either by pulling it or by harvesting it is obligated in Maaserot, since during the moment of harvest it was already owned by that person, as I already explained in the previous note. However it is exempt from all of the gifts to the poor, because by gifts to the poor the Torah says (Vayikra 19:9 and 23:22) שָׂדְךָ, “your field”, which requires the field to be owned by someone, as I already explained earlier in Tosefta 2:8, note 3. However, in this case the Tosefta is specifically talking about where the field still remains ownerless and only the standing crops were acquired by the person, which makes them still exempt from the gifts to the poor.

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 תוספתא ט 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.

Notes:

1. 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.
2. I.e. they owned all of the crops in a field as partners.
3. 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. 1/60^th 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. 1/60^th 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.
4. 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.
5. 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.
6. Even the crops that technically belong to the Jew.
7. 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.
8. 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).

Tractate Peah, Chapter 2 Tosefta 81 [If] a Non-Jew sold his standing crops2 to a Jew in order [that the Jew will] harvest [them,3 then the Jew is] obligated in [leaving] Peah [from this grain. However if] a Jew sold his standing crops to a Non-Jew in order [that the Non-Jew will] harvest [them, then the Jew is] exempt from [leaving] Peah [from this grain].4

מסכת פאה פרק ב תוספתא ח גּוֹי שֶׁמָּכַר קָמָתוֹ לְיִשְׂרָאֵל לִקְצוֹר חַיָּיב בַּפֵּיאָה. יִשְׂרָאֵל שֶׁמָּכַר קָמָתוֹ לְגוֹי פָּטוּר מִן הַפֵּיאָה.

Notes:

1. The Tosefta states a new law regarding Peah. It is not related to any Mishna.
2. Standing crops means crops that are still attached to the ground.
3. It does not really matter why the Jew sold the crops to the Non-Jew. All the Tosefta is trying to emphasize is that the crops were sold while they were still standing, before they were harvested. The Tosefta simply gives an example of why someone would want to sell standing crops. Because he did not want to deal with the harvest and therefore he sold the standing crops so that the buyer would harvest them himself.

   The Tosefta implies that the field itself still belongs to the Non-Jew and only the crops themselves were sold to the Jew. This is obvious, because if this was not the case then it would be obvious that the Jew is obligated to leave Peah since the whole field with the crops now belongs to him and it makes no difference who owned that field before. However since the field itself belongs to the Non-Jew we may think that the Jew would be exempt from leaving Peah in this case, because in the verses in the Torah (Vayikra 19:9 and 23:22) that talk about Peah it specifically says פְּאַת שָׂדְךָ, “the corner of your field”, implying that the field must belong to the Jew as well. Therefore the Tosefta teaches us that even though in this case the field belongs to the Non-Jew, since the crops themselves belong to the Jew, he is obligated in leaving Peah.

4. In this case the law follows the same logic that since the Jew does not own the crops themselves, even though he owns the field, he does not have to leave Peah. Obviously, the only possible way for him to leave Peah in such case would be before the sale took place (i.e. he had to not sell some of his crop in order to leave it as Peah), because once the crops were sold he cannot tell the Non-Jew to leave some of them for the poor, because the Non-Jew is not obligated in leaving Peah. The reason why the Tosefta need to teach us this case as well would be for the same reason as was explained in the previous note, that since the Torah implies that the field must belong to the Jew, then maybe we would think that even if only the field belongs to the Jew, but not the crops, he still has to leave Peah somehow.

   The reason that in both of these cases the obligation of Peah follows who ever does the harvest and not whoever owns the field is because the verses in the Torah about Peah (Vayikra 19:9 and 23:22) say וּבְקֻצְרְכֶם, “and when you harvest”, meaning that the law of Peah applies only to the owner of the harvested crops. This supposition overrides the implication from the rest of the verse that says “your field” that the field should be owned by the Jew, because it creates a condition for the commandment of Peah, that Peah takes place only during harvest, by the owner of the harvest.

Originally I wrote at the end of note 4 of Tosefta 2:6:

I was not able to find another suggestion for a reason for this law or come up with my own.

I have changed that to the following:

I would like to suggest a practical reason for this law that does not stem from any verses. The key difference between Peah and Leket is that the minimum and maximum amount for leaving Leket is well defined where as for Peah it is not. Dropped produce is considered Leket if and only if it is either 1 or 2 stalks. If it is 3 stalks or more then it is not Leket and it belongs to the owner. See Mishna Peah 6:5. Therefore when a poor person is in the field collecting Leket he can clearly see whether 1 or 2 stalks have been dropped or more and therefore there is never a doubt in his mind whether the owner intended to leave this produce as Leket or not. However by Peah the minimum amount is not well defined at all and the maximum amount does not exist since technically the owner can leave almost his whole field to be Peah. See above Tosefta Peah 1:1. Therefore the poor person is never really sure whether the produce left in the field as Peah was meant to be as such and can be taken or it still belongs to the owner, thus requiring the poor person to make sure that it was left for him.

I would like to point out that in the above discussion I was really careful to differentiate between Leket and Peah, but not between Shikcha and Peah. Nowhere in Talmudic literature does it say explicitly if Shikcha needs to be specifically designated as such by the owner like Peah or if it becomes Shikcha automatically when the sheath is forgotten regardless of the owner’s intent. Saul Lieberman in Tosefta Kifshuta (on this Tosefta, note 12) writes that Shikcha is just like Leket and it does not require the owner to proclaim it as such. He does not state a source for this statement. Even though based on the reasoning that I just explained that the minimum and maximum amounts by Shikcha are well defined (only 1 or 2 sheaths, but not 3) I am not so sure that it is completely the same in this aspect as Leket. The reason I am skeptical is because the Mishna Peah 5:7 says that if the workers forgot a sheath in the field, but the owner did not forget it himself then it is not considered to be Shikcha. Talmud Yerushalmi (Peah 5:6, Daf 27b) learns out this law from a verse in the Torah. It also adds that not only the owner must be personally aware that he forgot this sheath, but he also must be present in the field during the harvest when this sheath was forgotten. However if he was not present in the field during the harvest and still he said that the sheaths that his workers forgot in the field should be considered Shikcha, they are not considered to be Shikcha and therefore remain in the owner’s possession. The Yerushalmi learns this particular law from a verse in the Torah as well. All of this implies that Shikcha requires a certain amount of intent from the owner. We can even suggest that since the case of the Mishna where the workers forgot sheaths without the owner’s knowledge is really common, then for sure it would be the responsibility of the poor person to go and find out if the owner intended to leave these particular sheaths in the field, since if he does not do so he may end up inadvertently stealing them, because they are not considered to be Shikcha. However it is definitely not like Leket where the owner does need any intent to leave it at all and it becomes Leket as soon as it falls out of the workers’ hands without any knowledge of the owner.