Tractate Peah, Chapter 3 Tosefta 41 [If] the owner [of the field]2 was standing in the city3 and he said, “I know4 that [my] workers are forgetting a sheaf in such and such a place5 [in the field],” and they (i.e. workers) [really] forgot it [there, then] it is not6 [considered to be] Shikcha (forgotten sheaves), [because the owner still knows about it and did not forget it].7 Rebbi Shimon Ben Yehuda says in the name of Rebbi Shimon, “Even if other people were passing by on the road [next to the field] and they saw the sheaf that they (i.e. workers) have forgotten, it is not [considered to be] Shikcha until it gets forgotten by all people, [including the passersby.]”8 |
מסכת פאה פרק ג תוספתא ד בַּעַל הַבַּיִת שֶׁהָיָה עוֹמֵד בָּעִיר ואמר יודֵע אֲנִי שֶׁהַפּוֹעֲלִים שְׁוכֵחִין עוֹמֶר בְּמָקום פְּלונִי וּשְׁכָחוּהוּ אין שכחה. רבי שִׁמְעוֹן בֶּן יְהוּדָה אוֹמר מִשּׁוּם רבי שִׁמְעוֹן אֲפִילו אָחֵרִים עוֹבְרִין בַּדֶּרֶךְ וְרָאוּ אֶת הָעוֹמֶר שֶׁשְּׁכָחוּהוּ אין שיכחה עד שישכחוהו כל אדם. |
Notes:
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Mishna Peah 5:7 states that if the field workers forgot a sheaf in the field, but the owner of the field somehow knew that it was left there, or vice-versa, the owner forgot, but the workers still know about it, then that sheaf is not considered to be Shikcha and it still belongs to the owner. Our Tosefta expands on that law. The reason for this law is learned out from verses in Talmud Yerushalmi (Peah 5:6, Daf 27b). The Torah says (Devarim 24:19), “When you will harvest your harvest in your field and you will forget a sheaf …” “Your harvest” implies that the harvest belongs to you and is a reference to the owner of the field. “When you will harvest” implies the person who is actually harvesting, meaning the workers. Therefore the Yerushalmi concludes that the Torah requires both the owner and the workers to forget the sheaf in the field and not just one of them. It should be noted that one could easily explain this verse in a different fashion that the Torah requires the sheaf to be left for the poor only of the owner of the field is harvesting his own field himself, but if he hired workers to do it then it would not apply, since the Torah specifically says “when you harvest your harvest in your field”, you, the owner, and not someone else. However, the Yerushalmi does not interpret the verse that way for a simple reason that if that would be the case then there would almost never be gifts to the poor since most of the time the owner hired workers to harvest his field and did not do it himself. There must have been a tradition for this law that presupposed this Derasha (derivation from the verse).
It should be noted that there are conflicting readings in the manuscripts of this Tosefta which contradict each other. I have chosen the reading that makes most sense in the context.
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Literally: “the owner of the house”.
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The city is not meant here literally. The Tosefta choses the city as a place located far away from the field where the owner does not really have a way of knowing about what is going on in his field.
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It really makes no difference how the owner knows this or if he is just merely guessing. The Tosefta even implies that he is guessing, because later on it says “and they (i.e. workers) [really] forgot it [there …]”, meaning that it just happened to have worked out to be true, but the owner could have been wrong. Since the owner guessed correctly it is considered to be that he now knows about the forgotten sheaf which disqualifies it from being considered as Shikcha.
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It is not clear from the Tosefta if knowing the exact location in the field of the forgotten sheaf is a requirement for the fulfillment of this law or not. Technically the owner could just guess that somewhere in the field there is a forgotten sheaf without guessing its exact location. However, it seems to me that the reason the Tosefta adds that the owner specified its exact location and did not just generalize, is in order to prevent the owner from guessing on purpose that the workers forgot sheaves in the field and by doing so make those sheaves not qualify for Shikcha, thus robbing the poor people from their share. Therefore, in order to prevent this legal trickery by the owners of fields, the Tosefta requires that the owner specifies the exact location of the sheaf and only if that location turns out to be correct then it would not be considered Shikcha. But if the owner generalized without being able to specify the location of the sheaf then that would not be enough to make that sheaf not Shikcha and the poor people would still be allowed to take it.
You may wonder how the poor people would know that the owner still remembers that the sheaf is still in the field thus barring them from taking it. It seems to me that this particular problem would be the responsibility of the owner himself. Mishna Peah 4:5 mentions that there were specific set times during each day when the owners would allow the poor to enter their fields to collect gifts to the poor. Also, it was mentioned in Tosefta Peah 2:6, note 4, that the owner really has to give permission to the poor to enter his field to collect the gifts and they cannot enter the field otherwise. Based on that, I would like to suggest that if the owner knows that there is a sheaf in his field that the poor may confuse for Shikcha, but really it is not Shikcha, then he either must not allow the poor to enter his field until he retrieves that sheaf, or he must declare that sheaf to be ownerless, so that when the poor take it they do not violate the prohibition of theft. The owner would also be required to ask his workers if they forgot any sheaves in the field and only when they tell him no then he can allow the poor to enter the field.
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I have quoted the text the way it appears in the Vienna manuscript. However, in the Erfurt manuscript instead of the words אין שכחה(it is not Shikcha) it says, הרי זו שכחה (it is Shikcha). The printed editions follow the Erfurt manuscript. Even though all commentators come up with various reasons how logically this reading makes sense, I would like to illustrate from the wording of the Tosefta that the Vienna manuscript reading is the correct one. The following statement of Rebbi Shimon Ben Yehuda begins with the word “even”. That implies that his statement adds a more extreme case to what the Tosefta has already said. He cannot be arguing the opposite of what the Tosefta said, because then it would not make any sense to begin his statement with the word “even”. Since in all manuscripts his case is an example of a sheaf not being Shikcha that means that the statement of the Tanna Kama is also about a sheaf which is not considered to be Shikcha.
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This statement of the Tanna Kama is in agreement with the law stated in the Mishna, but the Tosefta adds an important detail and that is the owner can even guess that there is a forgotten sheaf in his field and not just know it for a fact, and as long as he is right then that sheaf is not considered to be Shikcha. From the Mishna alone we would assume that he owner must know this for a fact and guessing would not change the status of the sheaf.
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The reason that the passersby must also not know about the sheaf is because if they saw it then they can remind the owner or the workers that they forgot a sheaf in the field and that they should go back and get it, and therefore it is considered as if the owner or the workers know about it. It is difficult to understand this statement of Rebbi Shimon Ben Yehuda, because it is not clear how this situation can take place in reality. If the passersby saw it, but kept on going and did not tell the owner or the workers that they saw that sheaf then there is no way for the owner to stop the poor from taking it since he does not know about it himself. This would mean that by taking that sheaf the poor would violate the prohibition of theft inadvertently and there is no way to mend the situation. If that would be the case then this law would serve as stumbling block for the poor, which would be a violation of the prohibition of Lifnei Iver (not putting a stumbling block in front a blind person), which forbids doing things which will cause other people to violate prohibitions. See Vayikra 19:14 and Talmud Bavli Avodah Zara 6a-b. But if the passersby told the owner or the workers then this case is the same as the case of the Tanna Kama and of the Mishna since the owner or the workers now know about the forgotten sheaf and Rebbi Shimon Ben Yehuda does not add anything new.
In order to resolve this problem it is critical to understand what the status of a sheaf being Shikcha implies. If a sheaf qualifies to be Shikcha then two unrelated things apply to it. One is that the poor people may take it as a gift to the poor. But the other thing, no less important than the first, is that the owner is forbidden to go back and get it. This is explicitly stated in the Torah (Devarim 24:19), “When you will harvest your harvest in your field and you will forget a sheaf in the field, do not go back to take it.” You may wonder how this is possible. If the owner forgot the sheaf then he does not know that he can go back and take it, because he does not know that he sheaf is there. Obviously, the prohibition applies by creating a cutoff point between the sheaf qualifying as Shikcha and the owner finding out about it later on and wanting to go get it. Once the sheaf has been declared Shikcha even if the owner finds out about it later he cannot go back and get it, and if he does so he will violate this prohibition from the Torah. This key point is clarified by Rebbi Shimon Ben Yehuda’s statement. He says that you may think that once the owner and the workers forgot about the sheaf and decided that now they can allow the poor to enter the field, it obtains the status of Shikcha and therefore if later on, before the owner physically allowed the poor to enter his field to collect the gifts to the poor, some passersby come to the owner and tell him that they saw a forgotten sheaf in the field then it is too late and the owner is not allowed to retrieve anymore. Rebbi Shimon Ben Yehuda clarifies that that is not correct and really if passersby saw a forgotten sheaf and went and told the owner about it, even if he has already decided that he is done harvesting and the poor may go into his field and collect their gifts, he is still allowed to go back and retrieve that sheaf since that sheaf has never obtained the status of Shikcha, because the passersby who saw it prevented it from being so.
However, this law does not impact the poor in any way and does not create a situation where they end up stealing from the owner even if that sheaf never became Shikcha. The reason is because if the passersby never told the owner about it, even though it is not officially Shikcha, it is still considered to be Hefker (ownerless), since the owner does not expect to get it back, because he just assumes that all sheaves that are left in the field at this point are Shikcha and therefore he gives up on getting it back. This is a classic case of a concept of Yiyush (forgoing of one’s ownership of an object) as described in Talmud Bavli Bava Metzia 21b-22b. Since the owner does not know that he can ever get this object back and the object does not have on it any specific marking on it that implies that it belongs to the owner then we assume that he has given up on it and relinquished his ownership over it, which would automatically make the object ownerless, thus allowing anyone to take it.
In conclusion, Rebbi Shimon Ben Yehuda’s main point is to teach us that even if the owner has completed the harvest and already decided to allow the poor into his field to collect the gifts he may still go back to retrieve that particular sheaf as soon as he finds out about it from the passersby.
I would like to suggest that if the poor have already entered the field and while they are there collecting the gifts the owner finds out about this sheaf from the passersby then he would not be allowed to go back and retrieve it. The reason being because from that point on he has not relinquished his ownership over it (Meyayesh) since he knows about it, which would make that sheaf not ownerless, thus preventing the poor from taking it and causing a potential situation of theft on their part if they get to that sheaf first. Therefore it would make sense that the status of that sheaf being Shikcha gets frozen and cannot be reversed once the poor have entered the field even if later on passersby find it and report about it to the owner. The same would apply if the poor themselves go back to the owner and tell him that they found a sheaf in the field that he forgot, the owner would not have any power to force them to return that sheaf to him, because even though now he found out about it, its status already has been frozen as Shikcha once the poor have entered the field.