Tractate Peah, Chapter 3 Tosefta 71 [If a farmer] took a sheaf in order to take it to the city,2 and [then] he put [this sheaf] down [on the ground] on top of his friend (i.e. another sheaf)3 [while still in the field] and [then] he forgot both of them [in the field where he put them down], then the bottom [sheaf] is [considered to be] Shikcha (forgotten sheaf), and the top [sheaf] is not [considered to be] Shikcha.4 Rebbi Shimon says, “Both of them are not [considered to be] Shikcha. The bottom [sheaf is not considered to be Shikcha], because it is covered [by the top sheaf], and the top [sheaf is not considered to be Shikcha], because [the farmer] acquired it [for himself].”5, 6 |
מסכת פאה פרק ג תוספתא ז הָעוֹמֶר שֶׁהֶחֱזִיק בּוֹ לְהוֹלִיכוֹ לָעִיר וּנְתָנוֹ עַל גַּב חֲבֵירוֹ וְשָׁכַח אֶת שְׁנֵיהֶם, הַתַּחְתּוֹן שִׁכְחָה וְהָעֶלְיוֹן אֵינוֹ שִׁכְחָה. רבי שִׁמְעוֹן אוֹמר שְׁנֵיהֶם אֵין שִׁכְחָה, הַתַּחְתּוֹן מִפְּנֵי שֶׁמְּכוּסֶּה וְהָעֶלְיוֹן מִפְּנֵי שֶׁזָּכָה בּוֹ. |
Notes:
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Mishna Peah 6:3 states that if a farmer took a sheaf from his field in order to bring it with him to the city, and while he was still in the field he put that sheaf down on the ground and forgot it there, then both Bet Shammai and Bet Hillel agree that it is not considered to be Shikcha. As I already explained above (see Tosefta Peah 3:6, notes 1 and 8 ) the Mishna argues on the opinion of Rebbi Eliezer stated in the previous Tosefta, according to whom Bet Shammai and Bet Hillel argue in this case, with Bet Shammai holding that it is not considered to be Shikcha, because the owner acquired it for himself and the sheaf now has to be treated as a private lost object, whereas Bet Hillel say that it is considered to be Shikcha due to a fine that the Rabbis imposed upon the farmer for taking the sheaf before it was stacked and thus preventing the poor from having a chance of getting it. This Tosefta discusses a similar case, but which involves two sheaves. Both opinions in the Tosefta, of the Tanna Kama and of Rebbi Shimon, follow the opinion of the Mishna that Bet Hillel agree to Bet Shammai that the sheaf that was acquired by the farmer is not considered to be Shikcha, because the farmer already acquired it for himself. If this Tosefta would have followed Rebbi Eliezer’s opinion from the previous Tosefta then at least one opinion in this Tosefta would have to hold like his version of Bet Hillel, namely that the top sheaf is considered to be Shikcha. Since they do not they must subscribe to the Mishna’s opinion of what Bet Hillel hold. Obviously, none of the Tannaim in our Mishna can hold like Bet Shammai since we always follow the opinion of Bet Hillel, besides 9 exceptions. See Talmud Bavli (Eruvin 13b) and (Berachot 51b). For the list of exceptions see Tosafot (Sukkah 3a, Deamar) where 6 of them are mentioned and Talmud Yerushalmi (Kilayim 8:4, Daf 39a-b), which mentions the other 3.
This Tosefta can be used to prove the opinion of scholars, including myself, who argue that the Tosefta was written after the Mishna as an addition to it. And therefore even though it cited dissenting tradition from what was stated in the Mishna, it still commented on what the Mishna said, even if it was in conflict with the tradition cited by the Tosefta itself. If the Tosefta was written before the Mishna then it would make sense for this Tosefta to follow Rebbi Eliezer’s opinion from the previous Tosefta, since in that Tosefta it was the preferred opinion. However, the Tosefta chose not to follow it and instead to follow the Mishna’s opinion. This indicates that despite the fact that the Tosefta quoted dissenting tradition from the Mishna (i.e. in the previous Tosefta) it did not have a problem commenting on the Mishna in the next Tosefta (i.e. this Tosefta), which it could have done only if it was written after the Mishna. For the discussion of various scholarly opinions on what came first, the Mishna or the Tosefta, see Shamma Yehudah Friedman, Tosefta Atikta: Masechet Pesach Rishon, Bar Ilan University Press, Ramat Gan, 2003, Introduction, pp. 15-95.
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For the purpose of this discussion the Tosefta, as well as the Mishna, assume that the farmer lives in the city, and therefore he took the sheaf with him home.
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“His friend” refers to the sheaf’s friend and not the farmer’s friend, therefore meaning another sheaf. The phrase “his friend” commonly appears throughout the Talmudic literature referring to either two people who interact with each other or to objects which are similar to each other.
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The top sheaf is not considered to be Shikcha, because the farmer acquired it for himself, thus making it a lost object, as I already explained above in Tosefta 3:6, note 8. However, the bottom sheaf is treated as if it was forgotten by itself since it never received any special status by the farmer acquiring it. It is no different than any other forgotten sheaf in the field.
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Rebbi Shimon agrees with the Tanna Kama regarding the top sheaf not being Shikcha due to it being acquired by the farmer. However, he argues about the bottom sheaf. He says that in order for a sheaf to be considered Shikcha it has to be visible by the farmers who are working in the field. If the sheaf is somehow obscured from vision then it cannot be considered Shikcha, since the farmer left it in the field, not because he genuinely forgot it, but because he could not see it when he was collecting the sheaves to be stacked. It seems to me that Rebbi Shimon holds this purely based on logic. When the Torah gave the forgotten sheaf to the poor it intended to give the farmer a fair chance to collect all of the sheaves from the field and if he forgot it due to him not being careful then the sheaf belongs to the poor. However, if the farmer was at a disadvantage regarding the collection of the sheaves and some sheaves were obscured from his vision by something else, then in that case the Torah did intend to give them over to the poor, but rather they still belong to the farmer. However, the Tanna Kama does not subscribe to the same logic and holds that it does not really matter why the farmer forgot the sheaf. As long as the sheaf has been truly forgotten it is considered to be Shikcha.
Other commentators, such as Higayon Aryeh, Minchat Yitzchak and Chazon Yechezkel, suggest that the reason for Rebbi Shimon’s opinion is a direct exegesis from the Torah, as quoted by a Beraita in Talmud Bavli (Sotah 45a). The Beraita quotes an argument between Rebbi Yehuda and the Chachamim (Sages) regarding a forgotten sheaf that has been hidden from view by something. Rebbi Yehuda holds that it is not Shikcha and the Chachamim hold that it is Shikcha. The Gemara explains that the reason for Rebbi Yehuda’s opinion is the fact the Torah says (Devarim 24:19) “When you harvest your harvest in your field and you will forget a sheaf …” implying that the sheaf has to be visible in the field just like the rest of the harvest and not obscured. However, the Chachamim disagree, and say that since in the same verse there are two different words, namely “your harvest” and “your field”, both of which imply that the sheaf has to be visible, then we use a technique called Miyut Achar Miyut, An Exclusion After and Exclusion, which actually includes the presumably excluded case. So since the presumably excluded case would be a hidden sheaf, then since the verse said two separate words both of which imply that it should be excluded from the law of Shikcha, we apply the rule of Miyut Achar Miyut and consider this case included into the law of Shikcha. The Gemara continues to ask that if that is so then how come Rebbi Yehuda does not use this rule here as well, and it explains that he needs the second word, “in your field”, to learn a different law. After that source for the law is rebuffed by the opinion of the Chachamim the Gemara is forced to conclude that Rebbi Yehuda simply does not subscribe to their opinion, because the wording in their exegesis does not make sense to him. Since Rebbi Yehuda’s opinion for the obscured sheaf is the same as Rebbi Shimon’s in our Tosefta the commentators use it to explain his view.
Also, Talmud Yerushalmi (Sotah 9:2, Daf 41a) directly suggests that perhaps Rebbi Shimon learns out this law from the wording of the verse in the Torah as the Beraita quoted in Talmud Bavli. However, the Yerushalmi rejects that explanation due to the Miyut Achar Miyut that I already explained and implies that Rebbi Shimon would subscribe to it as well as the Tanna Kama, not as concluded in Talmud Bavli. This implies that the Yerushalmi rejects this explanation of our Tosefta. Since the discussion in the Bavli is forced and used to explain a few unrelated Beraitot and opinions, which are not necessarily connected, I have decided to stick with my explanation that the argument between Rebbi Shimon and the Tanna Kama is based on logic and not on Biblical exegesis.
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As I already explained earlier on a few occasions we are only concerned with whether the poor are allowed to take the sheaf if they see that he sheaf is obscured from vision by another sheaf or by something else lying on top of it. According to Rebbi Shimon they would not be allowed and according to Tanna Kama they would be allowed. We do not care what the farmer can do with this sheaf since he forgot about it and does not even know that it is there.