|Tractate Peah, Chapter 2
Leket (fallen stalks), Shikcha (forgotten sheaths) and Peah (corners of the field) of a Non-Jew2 (i.e. that he left in his field out of his own free will)3 are obligated in Maaserot (tithes).4 When [do we say that these gifts to the poor are obligated in Maaserot]? At the time when the Non-Jew protests [regarding people who are not poor taking this produce].5 But if the Non-Jew does not protest [non-poor people taking the produce] then [we apply the rule of] “[property that is declared] ownerless by a Non-Jew is [considered to be] ownerless”,6 and [since it is truly ownerless] it is exempt from Maaserot.7
מסכת פאה פרק ב
הַלֶּקֶט וְהַשִּׁכְחָה וְהַפֵּאָה שֶׁל נָכְרִי חַיָּיב בַּמַּעַשְׂרוֹת. אֵימָתַי? בִּזְמָן שֶׁהַגּוֹי מְמָחֶה, אָבָל אֵין הַגּוֹי מְמָחֶה הֶפְקֵר גּוֹי הֶפְקֵר וּפָטוּר מִן הַמַּעַשְׂרוֹת.
- Mishna Peah 4:9 states that Leket, Shikcha and Peah of a Non-Jew is obligated in Maaserot unless he declared it ownerless. This Tosefta clarifies that law.
- In all previous Toseftot the word used for a Non-Jew was גּוֹי (Goy). However, in this particular spot the Tosefta does not use the word Goy, but rather the word נָכְרִי (Nachri). This reading is the same in all manuscripts and printed editions. The literal meaning of the word Goy is “nation”, where as the literal meaning of the word Nachri is “foreigner”. However, both words mean exactly the same thing and are used interchangeably throughout Talmudic literature to refer to a Non-Jew. I would assume that the reason the word Nachri is used in this case is because the copyist of one of the early manuscripts which served as the source for the manuscripts that we have simply was not careful and used a synonym instead of copying the original word, which was Goy. It is also possible that the reason the copyist used the word Nachri here is to match the expression used in the Mishna (Peah 4:9), in the statement of this law.
- It is clear that the Tosefta refers to a case where the Non-Jew who is living in the Land of Israel left the three gifts to the poor in his own field from his own produce, because it already discussed the case of a Non-Jew partnered together with a Jew back in Tosefta Peah 2:9. Such a case was probably common during the Talmudic times, because Non-Jews that lived in Israel wanted to comply with Jewish laws and traditions, especially the ones that were of social nature, even if they were not required to do so, in order to preserve good relations with the Jews.
- As I already mentioned previously (see above Tosefta Peah 2:9, note 8), the Non-Jew is not obligated in the Mitzvah (commandment) of leaving gifts to the poor. Since he is not obligated in them, the produce that he leaves for that purpose is not officially considered to be Leket, Shikcha or Peah. Since it is not considered to be one of the three gifts to the poor, it does not qualify for an exemption from tithes like those from a Jew do. See Mishna Chala 1:3. So any Jew who takes this produce is obligated to remove the Maaserot from it. You should not assume that the status of this produce is automatically Hefker (ownerless), because as the Tosefta explains in the next line that depends on who the Non-Jew left it for. Ownerless produce, just like gifts to the poor, is also exempt from Maaserot. See Mishna Chala 1:3. However, in this particular case it obtains a special status, which makes it neither completely the owner’s, nor completely ownerless. It is essentially the owner’s property that he gives permission for others to take, but not ownerless.
It should be noted that the ruling of the Tosefta that the Non-Jew’s produce can be obligated in Maaserot in general is not universally accepted. Talmud Yerushalmi (Peah 4:6, Daf 23a-b) brings an argument between Amoraim (Sages of the Era of the Talmud), Rav Chizkiyah and Rav Yossi, both quoting a statement in the name of Rav Yochanan, that the general law of a Non-Jew’s produce being obligated in Maaserot depends on another argument between Tannaim (Sages of the Era of the Mishna) regarding the possibility of canceling the holiness of the Land of Israel over Non-Jewish property. Talmud Yerushalmi (Demai 5:8, Daf 23a) quotes an argument between Rebbi Meir on one side and Rebbi Yehuda and Rebbi Shimon on the other side, whether if land owned by a Non-Jew in the Land of Israel loses its holiness and therefore is not obligated in Maaserot just like land outside of the Land of Israel. Rebbi Meir holds that Non-Jew’s land in Israel does not lose its holiness and therefore all produce that comes from it is still obligated in Maaserot. However Rebbi Yehuda and Rebbi Shimon hold that it loses its holiness and therefore it is always exempt from Maaserot, just like all produce that comes from the outside of the Land of Israel. These concepts in the language of the Talmud are known as follows:
Rebbi Meir’s opinion:
אין קניין לעכו”ם בארץ ישראל להפקיעו מיד מעשר.
Literal translation: A Non-Jew does not have a right of possession in the Land of Israel in order to exempt [his produce] from Maaserot.
Rebbi Yehuda’s and Rebbi Shimon’s opinion:
יש קניין לעכו”ם בארץ ישראל להפקיעו מיד מעשר.
Literal translation: A Non-Jew has a right of possession in the Land of Israel in order to exempt [his produce] from Maaserot.
As can be seen from the way they are worded they are somewhat obscure and are up to interpretation, which leads us to the explanation of the argument between the Amoraim.
Rav Chizkiyah and Rav Yossi propose that our Tosefta can only satisfy one of these opinions, but not both. They argue as follows: Rav Chizkiyah says that the Mishna (Peah 4:9) and also our Tosefta are dealing with a case where the field belongs to the Non-Jew. They go only like the opinion of Rebbi Yehuda and Rebbi Shimon because they hold that even though normally produce from Non-Jew’s field is always exempt from Maaserot, in this particular case where the Non-Jew did not make it Hefker properly, it would still be obligated in Maaserot. This is because it became obligated in Maaserot at the moment that the Jew acquired it, so it is not impacted by the Non-Jew’s ownership of the land. However according to Rebbi Meir, who holds that the produce from Non-Jew’s land is still obligated in Maaserot, because the Non-Jew does not have true ownership of land in Israel, the produce would be obligated in Maaserot even if the Non-Jew made it Hefker. This is because he does not really have the right to make something Hefker that does not totally belong to him. According to Rebbi Chizkiyah, Rebbi Meir holds that not only the Non-Jew cannot remove the holiness from the land to exempt it from Maaserot, but also he cannot fully acquire it at all to give him enough rights over it to make something that comes from it Hefker. I have to admit that this opinion is very farfetched, especially that the argument between Rebbi Meir and the other Tannaim is not only regarding the holiness of the land, but also about the Non-Jew’s ability to acquire property in Israel, and it is nearly impossible to read it into the text of the Tosefta without completely convoluting its literal meaning.
Rav Yossi says exactly the opposite of Rebbi Chizkiyah. Rav Yossi says that the Mishna and the Tosefta go like the opinion of Rebbi Meir, that the produce from Non-Jew’s field is still generally obligated in Maaserot, which is why in this case as long as the Non-Jew did not make it proper Hefker it is obligated in Maaserot, but in the case where he made it proper Hefker it is exempt just like anyone’s Hefker is exempt from Maaserot. Rav Yossi holds that the argument between Rebbi Meir and Rebbi Yehuda and Rebbi Shimon is only regarding whether the Non-Jew’s ownership of the land cancels the holiness of the land or not, as the language of their statements implies. However, all of them agree that the Non-Jew can fully acquire land in Israel and therefore he can declare it or anything that comes from it Hefker since it completely belongs to him. However, according to Rebbi Yehuda and Rebbi Shimon, this produce should always be exempt from Maaserot regardless if the owner made it Hefker or not, which is why the Mishna and the Tosefta cannot be like their opinion. Rav Yossi’s opinion makes a lot more sense and is much easier to read into the text of the Tosefta. For further research into this argument and another possible explanation of the opinions of the Tannaim see Talmud Bavli (Gittin 47a).
- There is an argument between Bet Shammai and Bet Hillel in Mishna Peah 6:1, whether ownerless produce becomes ownerless only if it was declared to be so for all people equally, both rich and poor, or if it is considered to be ownerless even if it was declared so only for the poor, but not for the rich, which makes the rich forbidden from taking it. Bet Shammai hold that Hefker produce can be declared as such even only for the poor, but not for the rich, and it will obtain the official status of Hefker with all of its repercussions such as an exemption from Maaserot. However, Bet Hillel hold that in order for something to obtain the status of Hefker, it has to be truly declared ownerless, equally obtainable by all people, both rich and poor, and therefore produce that is declared Hefker only for the poor, but not for the rich, is not considered to be Hefker. This Tosefta is going like the opinion of Bet Hillel, which is the universally accepted opinion in Talmudic literature, and therefore if the owner does not allow rich people to take it, because he intended to leave it only for the poor, then it is not considered to be Hefker and is therefore obligated in Maaserot.
I would like to digress and discuss the legal concept of property which is declared ownerless only for some people, but not for others. Talmud Yerushalmi (Peah 6:1, Daf 28a-b) discusses various cases of such partial declaration of non-ownership. The Gemara mentions an argument between Rebbi Meir and Rebbi Yossi about how the concept of Hefker works. Rebbi Meir says that a declaration of non-ownership (Hefker) of property by the owner is a transfer of property from the owner’s possession into someone else’s possession based on the desire of the owner. And therefore it is up to the owner to decide who should be able to get this property in the end. He can either allow anyone to take it or he can restrict it only to a specific group of people. However Rebbi Yossi explains that Hefker is not a transfer of property from the owner’s to someone else’s possession, but rather it is an act of repossession, זכייה (Zechiyah), by the new owner. In other words, the property is not considered to be ownerless until someone else comes and repossesses it for themselves. See Talmud Yerushalmi (Pesachim 2:2, Daf 14b) for this clarification. The owner merely gives permission to someone to take it, but it does not actually become ownerless until that person takes it. Since it is a concept of repossession, it has to be able to be repossessed by anyone and not just by a restricted group of people. The opinion of Bet Hillel follows the logic of Rebbi Yossi.
- The Tosefta seems to be the primary source of this rule, as it does not appear anywhere else in Talmudic literature. However it seems from the language of the Tosefta that this rule is not trivial and that the idea of a Non-Jew declaring something ownerless and it actually getting the official status of Hefker is questionable and is not universally accepted. It seems to me that the reason the Tosefta emphasizes this rule is to exclude the opinion of Rebbi Chizkiyah that I discussed in the previous note that a Non-Jew does not have full ownership of his land in the Land of Israel and therefore cannot make something fully Hefker. Therefore the Tosefta explicitly states that it is not true and a Non-Jew who owns property regardless of what kind of property it is and its location he has full ownership of it and can do whatever he wants with it, including making it Hefker.
- Since the produce was left for anyone to take and is not limited to a specific group of people then it is considered to be truly Hefker and it is exempt from Maaserot.