Archives for November 2010

Notes:

7. The underlying reasons for the argument in the Mishna between Bet Shammai and Bet Hillel are discussed in Talmud Yerushalmi (Peah 6:1, Daf 28a-b). Either their argument depends on the verses in the Torah from which they learn out the concept of Hefker, or it depends on the technicality of how Hefker works in terms of leaving possession of the original owner and entering the possession of the new owner who picked it up. Regardless of the reasoning proposed it is clear from the Yerushalmi’s discussion that it was not aware of this Tosefta, because in it, Amoraim, Rebbi Yochanan and Rebbi Shimon Ben Lakish, both of whom lived in the generation after the Tosefta has been written, argue regarding the law of the cases cited in this Tosefta. They were clearly not aware that the Tosefta says that Bet Shammai and Bet Hillel agree about them. Therefore, the reasons for their argument cited in the Yerushalmi may not apply to this Tosefta, since according to those reasons Bet Shammai and Bet Hillel would not necessarily agree in the cases cited here. I have already discussed in Tosefta Peah 2:11, note 5, the reasons behind this argument, and I will not repeat them here. However, additional reasons need to be added as to why they agree in these two cases.

   The case of the animals is simple. Since there is no concept of possession by animals it is clear that not letting animals to take something does not in any way show that the item proclaimed ownerless only to people is not ownerless. The concept of ownership and ownerless can only apply to people. And therefore everyone agrees that if the owner made something Hefker and excluded animals from his declaration it makes no difference, and it is as if the owner included everyone possible to be included into his proclamation. Therefore the item remains Hefker with all of its implications.

8. It is difficult to understand this second case, since Non-Jews, just like Jews, have a concept of possession in Torah law. See Talmud Bavli (Bava Metzia 47a). Even the concept of Hefker itself applies to a Non-Jew, since a Non-Jew himself can proclaim something ownerless and it will obtain that status, as was already stated in Mishna Peah 4:6 and Tosefta Peah 2:11. And therefore if the owner proclaimed something ownerless, but excluded Non-Jews from his proclamation, then the law should be exactly the same as if he has excluded a group of Jews, thus causing Bet Shammai and Bet Hillel to continue their argument in this case.

   One proposed solution to this problem was suggested to me by my wife, Rachel, and is also mentioned by Noda Beyehuda (Mahadura Kama, Even Haezer 59), although rejected by him, that the whole argument between Bet Shammai and Bet Hillel regarding partial proclamation of Hefker is not about the whole general law of ownerless property, but rather only about its agricultural implications. In other words, as long as the object that was made Hefker was produce then Bet Shammai and Bet Hillel argue whether it is considered to be Hefker or not regarding the obligation of the new owner of the produce to remove tithes from it. However, they agree that in all of these cases the produce can be picked up by anyone and they will not violate the prohibition of theft since its original owner relinquished his rights to this produce. They also do not argue regarding partial Hefker when the item in question is not produce and therefore there is no concern regarding tithes and would agree that it can be picked up by anyone without concern for violating prohibition of theft. According to this explanation it makes sense why they would agree that excluding Non-Jews from the ownerless declaration would still exempt this produce from Maaserot. Tithing, being a commandment in the Torah, only applies to Jews. Therefore as far as tithing is concerned all Jews, both poor and rich, and from all locations, have been included in the Hefker proclamation. And therefore this produce is Hefker with regard to tithes and is exempt from them. Excluding Non-Jews is like excluding anyone else who is not involved in the process of tithing, like animals. This explanation would raise an interesting question such as, what if the owner of the produce excluded all Jews who live outside of the Land of Israel where there are no tithes. Would Bet Shammai and Bet Hillel argue in this case or not? We do not know. Since Bet Shammai and Bet Hillel lived in the Land of Israel this question did not really concern them and they did not discuss it. Or even if they did it has not been recorded for us.

   Although this explanation makes some sense, because it appears in tractate Peah where generally only agricultural questions are discussed, I would like to reject it, just like the Noda Beyehuda did, for the following reasons. First of all the Mishna in its language does not mention Maaser at all. It makes a blank statement regarding the general concept of Hefker implying that the subject under discussion is the actual ownerless status of the object and not only whether Maaser needs to be removed from it or not. It also does not mention produce, but rather implies that this argument would apply to any object that was declared to be ownerless even if it is not produce. Finally, this understanding has precedence. The Mishna has been understood this way by everyone who read it, starting from the Amoraim in Talmud Yerushalmi and ending all of the commentators on the Mishna, both early and late. And although the fact that everyone understood it a certain way is not a reason to reject a particular explanation, I believe that they were right due to the other reasons that I have already mentioned.

   I would like to propose a totally different explanation to this problem. It is a based on a suggestion made by Rav Shmuel Landau, the son of Rav Yechezkel Landau, the author of the Noda Beyehuda, in his responsa Shivat Tzion (Siman 103). There is a concept in Jewish law that says that in certain cases when a Jewish court judges a Non-Jew it should judge him according to the law of the Non-Jews themselves and not according to the Jewish law. See Tosefta (Avodah Zara 9:4) and Talmud Bavli (Sanhedrin 57b). In Roman law there was a concept of ownerless property, called “Res Nullius”, and there was a concept of relinquishing property, called “Missio in Possessionem”. See Adolf Berger, “Encyclopedic dictionary of Roman law”, Volume 43, Part 2 of Transactions of the American Philosophical Society, American Philosophical Society, 1953, entry Missio in possessionem, p. 584, and entry Res nullius, p. 679. However, it appears that Roman law did not have a concept of relinquishing by intention, such as making something ownerless merely by thinking about it, without some kind of an act accompanying it, such as actively throwing the object away. See Code of Justinian (2, I, 47), where it states:

   And on this principle it seems quite true to say also, that if a thing is regarded by its owner as abandoned, then any one that takes possession forthwith becomes its owner. And it is regarded as abandoned when its owner has thrown it away with the intention that it shall no longer be part of his property; he ceases, therefore, at once to be the owner.

   Translation from William Alexander Hunter, “A systematic and historical exposition of Roman law in the order of a code”, 4th ed., translated by John Ashton Cross, London, 1803, pp. 257-258.

   In fact, Roman law in general always required an act to accompany intention, not just with regard to relinquishing property, but also with regard to crimes, as well as possession.

   Justinian’s Code, Corpus Juris Civilis, compiled to from 529 to 534 CE, claimed to compile all Roman civil law from the time of Hadrian (76 – 138 CE) until its day, and therefore it is safe to assume that the same Roman law was active during the times of Bet Hillel and Bet Shammai, who mostly flourished during the 1st century CE.

   Based on all of this, it would seem that according to Roman law if a person threw something away and declared it ownerless to some part of the population, he could not proclaim that a different part of the population could not take possession of that object, because the act of throwing away already showed that the owner relinquished all of his rights to the object. I would like to suggest, that Bet Hillel and Bet Shammai, being aware of this Roman law, decided to judge the Non-Jew, who in their case was a Roman, according to his own laws. And therefore when a Jew made a declaration of Hefker that excluded Non-Jews, since such a declaration had no validity in a Roman court, they decided that it would make sense to ignore it as well, just like the Roman court would, and therefore still consider the object in question ownerless to everyone, just like it would have been done in Roman law. You may wonder, why would they do this? The answer to that is simple. The Rabbis’ concern was always to distance the Jews from the Non-Jews, in order to prevent intermarriage and idol worship, and since in this case there was a legal loop hole that allowed them to show the Jews that their act is not affected by the Non-Jews in any way, even if it is merely a thought or a proclamation, it sent a powerful message, that whatever the Jews do, the Non-Jews do not concern them and do not have any legal power to control their way of life.

Notes:

1. Before explaining the Tosefta and the Mishna upon which it comments it is necessary to understand the terminology which the Tosefta and the Mishna use. Part of the problem that plagues all of the commentators, both on the Mishna and the Tosefta, is that they do not know the proper farming terminology or the process of bundling sheaves, stooking and stacking grain, which is being referred to here. I have translated all of the technical terms used in the Tosefta based on their definitions in the book by Sereno Edwards Todd, “The American wheat culturist: a practical treatise on the culture of wheat, embracing a brief history and botanical description of wheat, with full practical details for selecting seed, producing new varieties, and cultivating on different kinds of soil,” Taintor Brothers & Co., 1868. Before I go on explaining the text I would like to simply list the terms and their translations used in both the Tosefta and the Mishna to which it refers.

   1. עומר (Omer) – sheaf (plural: sheaves).
   2. מעמר (Meamer) – binding sheaves or heaping. This is a general term that means bundling and refers to binding a single sheaf, stooking, or stacking, depending on the context. Generally, it is referring to whatever the subject is that comes after the word Meamer. For example, if we say Meamer Letevuah, then Tevuah (grain) is the subject to which Meamer refers to and therefore the phrase means binding individual stocks of grain into sheaves. If the subject is sheaves, then it is referring to the next step in the process, namely bundling sheaves into stooks. If the subject is the final stack then we are talking about bundling sheaves from the stooks into the stack.
   3. מעמר לעומרים (Meamer Leomarim) – stooking individual sheaves into a stook or a small heap.
   4. מעמר לגדיש (Meamer Lagadish) – stacking sheaves from stooks into a stack.
   5. גדיש (Gadish) – stack.

   The first half of the Tosefta is related to Mishna Peah 5:8, which states that if a farmer makes sheaves of grain in order to pile them into various types of stooks that later on will have to be piled again into a large stack from where the grain will be taken to the threshing floor then if a sheaf is forgotten by the farmer while it is being piled into these stooks it is not considered to be Shikcha. However, if he piles the sheaves directly into a stack from where they will be taken to the threshing floor then it is considered to be Shikcha. The Mishna concludes with a general rule that regardless of what type of heap these sheaves are being piled into, either a stook or a stack, as long as this heap is the culmination of the act of heaping sheaves, עימור (Imur), meaning that it is the final heap prior to the grain being brought to the threshing floor, then all sheaves that are forgotten in the field while they are being carried to that final heap are considered to be Shikcha. However, if the sheaves are being carried from that final heap to the threshing floor or being carried to an intermediate heap then if they are forgotten at that time they are not considered to be Shikcha. Only if the sheaves or intermediate heaps are being transported to the final heap before the grain will be taken to the threshing floor, only then it is the last “trip” of the grain during the process of heaping, or bundling sheaves, which makes the sheaves qualify for Shikcha in case they are forgotten. But during any other step in the process, either before or after the final heaping in the field, the sheaves, if forgotten, do not qualify for Shikcha and can be picked up by the owner.

   Rebbi Yehuda in our Tosefta comes to argue on some details outlined in the Mishna regarding specific types of heaps.

   The second half of the Tosefta is related to Mishna Peah 6:1 in which Bet Shammai and Bet Hillel argue regarding the law of Hefker (ownerless items). Bet Shammai say that if the owner of the produce proclaims it to be ownerless only to poor people, thus preventing the rich from taking it, then it is still considered to be Hefker and is therefore exempt from Maaserot (tithes). See Mishna Chala 1:3. However, Bet Hillel say that if the owner puts such a limitation on its ownerless status then it is not considered to be ownerless, and therefore it is still obligated in tithes, unless the owner proclaims it to be ownerless to all people, even the rich. It seems from the Mishna that regardless of the limitation set in the proclamation of the owner anyone, rich or poor, would still be allowed to take that produce, even though it is not officially Hefker for them, since the owner gave up on it (Yiyush) and does not intend to keep it, as I already explained above in Tosefta 3:4, note 8. Our Tosefta comes to add an important clarification to this argument, that not all types of limitations set in the proclamation of the owner are the same, and that there are limitations that the owner can set to the produce’s Hefker status which will still qualify it as Hefker and therefore exempt the poor from tithing it.

   I would like to point out that the only reason I have bundled these two unrelated parts of the Tosefta into a single Tosefta is because that is the way it is recorded in the Talmud Bavli printed edition, whose numbering order I preserve in this edition of the Tosefta for ease of use. It would make more sense to separate these two parts into two separate Toseftot. There is no indication in any Tosefta manuscript how these Toseftot were meant to be numbered, because they do not have numbers and in this particular case these two statements are written together without any extra space between them.

   Another important point is that there is a discrepancy in the statement of Rebbi Yehuda between the Vienna and the Erfurt manuscripts, as well as between various commentators interpreting what is written in the manuscripts. I have chosen a reading in the main text which makes most sense based on context. I have quoted other reading possibilities in the commentary below as well as shown the pictures of how the text looks in both manuscripts so that the reader can understand the difficulty in its interpretation.

2. Stooking, also known as shocking, is an act of stacking grain sheaves in the field before threshing so that they can dry. Normally the sheaves are stooked into stooks, also known as shocks, and left in the field to dry for a few weeks after which it is either taken to the threshing floor or if there is not enough room for all the grain at the threshing floor, it is stacked into a stack in the field where the grain remains until it is moved to the threshing floor once the rest of the grain has been threshed. The reason that farmers stored grain in stacks and not in barns or at the threshing floor itself, is because the threshing floor was not big enough to store all of the harvested grain and most poor farmers did not have closed silos. They simply stored the grain in stacks in the field until it could be threshed on the threshing floor. The details of stacking, as opposed to stooking, will be explained below in note 4.

   There is a whole methodology to stooking sheaves properly, because if it is not done right then the grain will not dry well. For more details on proper methods of stooking see Sereno Edwards Todd, “The American wheat culturist: a practical treatise on the culture of wheat, embracing a brief history and botanical description of wheat, with full practical details for selecting seed, producing new varieties, and cultivating on different kinds of soil,” Taintor Brothers & Co., 1868, pp. 366-381.

   Mishna Peah 5:8 lists a few different types of stooks, all of which are not considered to be the final step in the heaping process. Although it is impossible to identify exactly how each of these stooks looked at the time of the Mishna I have put together a list with pictures based on their descriptions which I believe is very close to the reality that the Mishna is referring to.

   כובע (Kova) – a stook that looks like a hat (hence it is called Kova – hat). This is most probably the most common type of a stook where the sheaves are leaning against each other. It has a somewhat triangular shape.

   
   
   

   Hat shaped stooks. It is not the best way to stook sheaves, because they are not very stable and sometimes they fall down, as can be seen on this picture. Photo: hughlook.

   כומסה (Kumsa) – a round stook. Most commentators identify the source of the word Kumsa with the Hebrew root כמס (Kamas), which means “hidden”, implying that this is some kind of a heap beneath something else. Aruch Hashalem, Vol 4, entry כבע, p. 187, suggests that this may not be a native Hebrew word and may come from Arabic, specifically meaning “a round heap”. Both of these interpretations make sense for the standard round stook. The way a round stook is made is by placing a single sheaf in the center and then surrounding it by eight sheaves in a circle. The eight sheaves lean against the center sheaf thus giving the stook its stability. The name, Kumsa, refers to the “hidden” sheaf in the center of the stook, since it cannot be seen from the outside.

   
   
   

   Round stook. An instructional illustration from the 19th century. Note that the sheaves were put vertically in a circle and then another sheaf, called the capping sheaf, was put on top of them, so that in case it rains water would run down the stook and not collect inside. From The American Wheat Culturist, p. 370.

   חררה (Charara) – a stook with a hole in the middle. It comes from the word חריר (Charir) which means “a hole of a needle”, as used in Mishna Keilim 13:5, which in turn comes from the word חור (Chor), “hole”. See Aruch Hashalem, Vol 3, entry חרר, pp. 504 – 505. The way this stook would be made is the same as the Kumsa stook, except that instead of the hidden sheaf in its center there would be empty space. Also, the capping sheaf would not be placed on top of it since there was nothing in the center to support it. It is not clear what would be the advantage of making a round stook with a hole in the middle, except perhaps for the simplicity of making it. There probably was no real concern for rain water collecting inside the stook, since it almost never rains in the Land of Israel in the spring, during the harvest season. It is also possible that Charara is actually a rectangular stook and the hole is referring to the lack of the support sheaf in the stook’s center. In a rectangular stook the sheaves are placed in two rows and are leaning on each other, thus creating a hollow space in the center of the stook, which can actually be seen from the outside.

   
   
   

   Wheat Sheaves in a field, in Lancaster County, Pennsylvania, June 2004. Notice the small sheaves in the background all over the field and then the larger rectangular stooks in the foreground and the background. Notice that the sheaves in this rectangular stook are leaning on each other and do not have a central supporting sheaf. Photo: Curt Weinhold.

   
   
   

   Sheaves of Wheat in a Field. Painting by Vincent Van Gogh, 1885. Kröller-Müller Museum, Otterlo, Netherlands. Notice that this particular stook does not have a center sheaf and is therefore hollow in the middle. This is a possible depiction of a Charara.

   
   
   

   Stooks of wheat in fields near South Molton, England, July 2010. Notice that these stooks are hollow as well and do not have a sheaf in their center placed for support. Photo: Mark Robinson.

3. Rebbi Yehuda describes the standard process of heaping in which the farmer first creates sheaves, then collects them and puts them into stooks, and then collects all the stooks into a large stack from where he will then take all the sheaves to the threshing floor. According to Mishna Peah 5:8 stooking is considered to be an intermediate step in the process of heaping and therefore if the farmer forgets one of the small sheaves while stooking them into stooks it would not be considered Shikcha, because it is not the final act of heaping. However, Rebbi Yehuda argues on the Mishna and states that in this case the forgotten sheaf would be considered Shikcha, as will be explained in the note 5.

4. The Hebrew verb הדר (Hadar) means “to enclose” or “to round off”. It is referring to the act of smoothing out the final stack of grain. The stack has to be smooth so that in case that it rains the rain water will run-off the edges of the stack and will not collect inside the stack causing the grain to rot. There is a whole complicated methodology to stacking grain in stacks in order to make sure that the stack does not lean to the side, fall apart or become very wet. For more details on proper methods of stooking see Sereno Edwards Todd, “The American wheat culturist: a practical treatise on the culture of wheat, embracing a brief history and botanical description of wheat, with full practical details for selecting seed, producing new varieties, and cultivating on different kinds of soil,” Taintor Brothers & Co., 1868, pp. 389-399.

   
   
   

   Stacking wheat. An instructional illustration from the 19th century. Note that the individual sheaves are stacked in a way that the outside of final stack is smooth. From The American Wheat Culturist, p. 392.

   
   
   

   Wheat stacks and wagon load of grain in Portage La Prairie, Manitoba, Canada, 1887. Photo: William McFarlane Notman. McCord Museum of Canadian History. View-1623. Notice that a whole stack can be placed on a wagon pulled by a horse.

   
   
   

   A completed wheat stack. An instructional illustration from the 19th century. Note that the stack has a sharp point on top so that water will easily run-off of it. From The American Wheat Culturist, p. 396.

5. Rebbi Yehuda views the case of bundling sheaves into stooks not as a separate act of bundling, but rather as a preparatory step for the final bundling into a large stack. There are a few possible reason that the farmer would create stooks, before making a stack, or not making a stack at all. The stooks are made in order to dry the grain, before it is stacked, since inside a big stack the grain will not dry well, since it is not very much exposed to air. If the farmer’s field is small and he can fit all of his produce on the threshing floor, then it is probably easier for him to just carry the sheaves straight from the stooks to the threshing floor than stacking them first in the field into large stacks. If the farmer decided to bundle his sheaves not in a stack, but rather into large sheaves or so-called small heaps then he probably did so to minimize his transportation efforts from the field to the threshing floor. The small heaps are sized in a way that either the farmer himself or with the help of an animal, such as a donkey or a camel, can carry away one small heap at a time, which is much bigger than an individual sheaf, but not as big as a whole stack, thus reducing the amount of trips he would have to make if he was to pick up each individual sheaf and carry it to the threshing floor. Since it was a lot more common in the Land of Israel for farmers to use donkeys or camels, and not horses that pulled wagons, it made a lot of sense for farmers to transport small heaps as opposed to large stacks. Therefore Rebbi Yehuda compares this intermediate step of creating small heaps to a case where the farmer carried sheaves directly to the large stack, and seemingly completed the large stack, but then decided to bring more sheaves and push them into the completed stack. In such a case, everyone agrees that it is not considered to be a separate act of bundling, but rather it is a continuation of the act of creating the large stack. And therefore if the farmer forgot one of these last sheaves in the field they would still be considered Shikcha since they were being carried directly to the large heap. Similar to this more obvious case, Rebbi Yehuda claims that making small heaps first is all a part the greater act of heaping and therefore sheaves that are forgotten in the field while making these small heaps are considered to be Shikcha as well.

   I would like to suggest that when Mishna Peah 5:8 states המעמר לעמרים (Hameamer Leomarim), “a person who bundles into sheaves” it is specifically referring to making these small heaps from regular sized sheaves for the purpose of transportation on an animal. This also clearly distinguishes these heaps from the three types of stooks that the Mishna mentions, Kova, Kumsa and Charara, and from the stack, Gadish, and therefore each example of the Mishna is talking about an agriculturally distinct act.

   
   
   

   Arab farmers in Palestine transporting grain sometime between 1900 and 1920. Library of Congress, G. Eric and Edith Matson Photograph Collection, LC-DIG-matpc-01229.  Notice that although the farmer is carrying only one large sheaf, the camel behind him is carrying a few such sheaves. A camel cannot transport a whole stack, which would require a wagon and probably a horse or a mule to pull it.

6. There is a great deal of dispute regarding the last three words of Rebbi Yehuda’s statement due to various readings in the manuscripts and obscure handwriting in which it is written. Before jumping to any conclusions I would like to present to you the actual pictures of both Vienna and Erfurt manuscripts so that you can judge the difficulty for yourself.

   
   
   

   Rebbi Yehuda’s statement as it appears in the Vienna manuscript. Note that the last two words are either חררה כגדיש or חררה בגדיש and not as I have quoted them וְהַדְרַה וזוֹרֵר לגדיש.

   
   
   

   Rebbi Yehuda’s statement as it appears in the Erfurt manuscript. The word that appears to be as והדרה or וחררה has Vowelization underneath it, but it is too difficult to make out what it is.

   The first printed edition has the text similar to the Vienna manuscript, but they have interpreted it to read לחררה בגדיש (Lecharara Begadish), meaning “to the stook with a hole in the center inside the stack”. That reading does not make any sense what so ever. Saul Lieberman in Tosefta Kifshuta suggests that the correct reading in the Vienna manuscript is חררה כגדיש (Charara Kegadish), “the stook with a hole in the center is like a stack”, meaning that both of them qualify a forgotten sheaf as Shikcha. This reading makes more sense, but is still problematic since it has to be read as a completely separate sentence from the rest of Rebbi Yehuda’s statement.

   There are two different interpretations of the Erfurt manuscript reading. Zuckermandel in his edition of the Tosefta interpreted it to read וְהַהִרַה וזוֹרֵר לגדיש (Vehahira Vezorer Legadish), “and [then] made it (i.e. the stack) into a mound out and [then brought more sheaves and] pressed [them] into the stack”. This reading does not make much sense since it does not flow with the rest of Rebbi Yehuda’s statement. Also saying that “he made the stack into a mound” is superfluous since making the stack itself implies that it is made into a mound of sheaves. Therefore I have chosen the Erfurt manuscript reading as interpreted by the Bar Ilan Tosefta Project, וְהַדְרַה וזוֹרֵר לגדיש (Vehadra Vezorer Legadish), “and rounded it (i.e. the stack) out and [then brought more sheaves and] pressed [them] into the stack,” since it makes most sense in the text and makes Rebbi Yehuda’s statement flow as a single sentence.