Tractate Peah, Chapter 2, Tosefta 5

Notes:

1. The Tosefta states a new law regarding Peah. It is not related to any Mishna.
2. Literally: the owner of the house.
3. It was already mentioned in Tosefta Peah 1:5 that the owner of the field can give the minimum obligation of Peah and then add to it additional crops, which would also count as Peah even though technically the owner already fulfilled his obligation of Peah with the original crops that he left for this purpose. As correctly explained by Chasdei David, this Tosefta is clarifying that despite that it might appear that the second batch of produce that the owner gave the poor people is merely a gift since they asked for it and the owner did not originally intend to give it to them and therefore is not considered to be Peah, because he already gave the required amount of Peah, this second batch is still considered to be Peah with all of its ramifications. If the owner gave the poor people a gift of crops, but it is not officially considered to be Peah then the poor people must take off from it Maaserot. However if it is Peah then it is exempt from Maaserot. See Mishna Chala 1:3. The Tosefta is coming to teach us that the second batch is still considered to be Peah, because the poor people specifically asked for it to be given as Peah, and therefore it is exempt from Maaserot. For an explanation of what Maaserot are see above Tosefta Peah 1:6, note 7.

   There are some commentators, such as the Cheshek Shlomo, Minchat Yitzchak and Chazon Yechezkel, who confuse this Tosefta with the Beraita quoted in Talmud Bavli (Bava Kama 28a) and explain it in the same manner. The Beraita there mentions a case where the owner told the poor people to take Peah from one side of the field and they did not listen to him and went and took Peah from the other side of the field, in which case the Beraita says that both sets of crops are considered to be Peah. Rava in the Gemara clarifies that when the Beraita says both are Peah all it means is that both of them are exempt from Maaser as Peah would be, but that both of them are literally Peah and have to given to the poor. The Meiri (Bava Kama 28a, Baal Habayit) explains that what Rava means and it is the essential meaning of the Beraita as well is that the poor people do not get two sets of Peah. Since they decided to take Peah from the other side of the field, which the owner did not give them, the owner gets to keep the crops which he originally intended to give them. However, those crops revert automatically from their status of Peah and become Hefker (ownerless), which makes it just like Peah in terms of the exemption from Maaserot, since Hefker is exempt from Maaserot. See Mishna Chala 1:3. The owner then acquires those crops back from Hefker and gets to keep them. It seems to me that the Meiri’s explanation stems from an obvious question that arises from a surface reading of the Beraita. Why is it not considered stealing when the poor people went and took different crops than what the owner left for them to be taken as Peah. The Meiri resolves this by his explanation, since the owner left a bunch of crop at the end of the field, which the poor could have taken for Peah, but they did not, the owner gets to keep them himself, but they change their status and become Hefker, which makes them exempt from Maaserot. So essentially the owner traded his personal crops for the Peah that the poor people took and since he did not lose anything it is not considered to be theft what the poor people did.

   The commentators on the Tosefta learn that Beraita in a different way than the Meiri and say that it means exactly the same thing as our Tosefta. They say that the Beraita teaches that once the owner declared specific crops to be Peah he cannot change his mind anymore and switch them for different crops. So even though the owner gave them specific crops as Peah, once they went and took different crops as Peah, the owner cannot ask back for the original crops that he meant to give them, because once they have become Peah their status cannot be changed and his only option is to give them to the poor people as well. Not only does this explanation not fit well in the wording of the Gemara, and does not resolve the question of why it is not considered to be theft by the poor people, since in the end they got to keep both sets of crops, but it for sure cannot be used to explain this Tosefta. It is clear from the wording of our Tosefta that it is not talking about that case, because in the Tosefta the owner did not have to give in into the poor people’s request and give them the second batch of crops. He could have simply refused them, because he already gave them Peah. He decided out of his own volition to be nice to them and give them the crops for which they asked and he did not intend to ask back for the original set of crops that he gave them. The only thing that is not obvious from his action is whether he gave them the second batch as Peah or as a simple gift. And so the Tosefta clarifies that it is considered to be Peah and not just a gift, since they asked for Peah, which means that it is exempt from Maaserot.