Tractate Peah, Chapter 3, Tosefta 14

Notes:

1. Mishna Peah 7:1 states that any olive tree that is famously known due to its name, its olives production, or its location, and therefore is considered different from the rest of the trees in that field, if it is forgotten to be harvested during the harvest it is not considered Shikcha and therefore the farmer may go back and harvest it later and he may prevent the poor people from taking its olives. Mishna Peah 7:2 states that any regular olive tree that still has two Seahs of olives on it is not considered to be Shikcha, as long as the farmer did not begin to harvest it. But if the farmer began harvesting it and then forgot to finish it off, then even if it is a famously known tree, such as the olive tree of Netofa was known in its time, then it is still considered to be Shikcha and the farmer may not go back and complete harvesting it.

   It is not clear what our Tosefta is trying to do with regard to these two Mishnayot. According to Rash Mishantz (Mishna Peah 7:2, Bameh Devarim Amurim) the Tosefta is actually arguing on the law in the Mishna as follows. According to the Mishna any olive tree, even a not famous one, that he did not begin to harvest, as long as it has two Seahs of olives on it, is not considered Shikcha. But if he began harvesting it and then forgot to finish it, then it is considered Shikcha no matter what, even if it is famous and even if it has two Seahs of olives on it left. However, according to the Tosefta, if it is a famous tree, then even if he began harvesting it and forgot to finish it, as long as it has two Seahs of olives left on it, it is not considered Shikcha. But by a regular olive tree the Mishna and the Tosefta agree that even if it has two Seahs on it left, once he forgot to finish it, it is considered Shikcha.

   However according to Talmud Yerushalmi (Peah 7:2, Daf 32a), and the Rambam (Mishna Peah 7:2, Kesheyihyeh) the Tosefta is not arguing on the Mishna, but is merely explaining it. The Tosefta clarifies that the law of the second Mishna about two Seahs is not referring to a regular olive tree, but it is rather referring to the famous olive tree mentioned in the first Mishna. And therefore, according to both the Mishna and the Tosefta, if the tree has both criteria, that it is famous, and it has two Seahs of olives on it, then even he began harvesting it and forgot to finish, then it is still not considered Shikcha. But if it has only one criterion, either it is famous, or it has two Seahs of olives left on it, but not both, then if he began harvesting it then it is considered Shikcha. However, if he did not begin harvesting it then it is not considered Shikcha.

   To avoid confusion I have presented here the details of this argument in the following chart. If the cell contains an X then it is considered Shikcha, but if it is blank then it is not considered Shikcha. The question mark (?) indicates that it is not clear what that opinion is in that particular case.

   Rash Mishantz		Mishna	Tosefta
   Did not begin harvesting	Both
   	Famous only
   	Two Seahs only	X	?
   Began harvesting and did not finish	Both	X
   	Famous only	X	X
   	Two Seahs only	X	X

   Talmud Yerushalmi and Rambam		Mishna	Tosefta
   Did not begin harvesting	Both
   	Famous only
   	Two Seahs only
   Began harvesting and did not finish	Both
   	Famous only	X	X
   	Two Seahs only	X	X

   It seems to me that Talmud Yerushalmi’s and the Rambam’s opinion makes more sense and fits in better into the language of the Tosefta, because according to their logic all of the cases are resolved, whereas according to the Rash Mishantz the case of if he did not begin harvesting and it is not a famous tree, but it has two Seahs of olives on it, remains unresolved.

2. As I already mentioned, Mishna Peah 7:1 explains what a “famous” tree means. It may have a special name for which it is known, such as “oily” – a tree that in the end produces more olive oil than other trees, or that it is an “embarrassing tree”, because it embarrasses other trees with its overproduction of fruit. See Talmud Yerushalmi (Peah 7:1, Daf 31b). It may also be known after a location where it originated from, such as the Bet Shan tree, because it was originally brought from Bet Shan and planted in this farmer’s field. See Talmud Yerushalmi (Peah 7:1, Daf 31b) and Pnei Moshe (ibid. Bishni). Even if the tree does not have a special name, but it is still known for its production of large fruit, then it is considered “famous”. Finally, if the tree is known for its location, such as a tree growing next to a wine press, or next to a hole in the fence, and people refer to it by that location, then it is considered “famous” as well.

   The reason why a famous tree is not considered to be Shikcha is derived from a verse by Talmud Yerushalmi (Peah 7:1, Daf 31b). The Torah says (Devarim 24:19), “When you will harvest your harvest in your field and you will forget a sheaf in the field …” implying that the sheaf has to be forgotten forever. However, we assume that the farmer will eventually remember his famous tree, even if he forgot about it for a while, and therefore it is not considered Shikcha.

   Today there are a few such famous trees in the Land of Israel that are known by name. For example, the date palm Methuselah, named after the oldest person in the Torah, the only extant Judaean Date Palm cultivar that has been grown from a seed found in Herod’s palace in Masada during the excavations there in the mid-1960s. The seed was planted and germinated in 2005 by Professor Elaine Solowey from the Arava Institute for Environmental Studies, Kibbutz Ketura, Israel, and then transferred on November 24, 2011 into the ground on the territory of Kibbutz Ketura in the Arava desert in southern Israel, where it is growing today. See Sarah Sallon, Elaine Solowey, Yuval Cohen, Raia Korchinsky, Markus Egli, Ivan Woodhatch, Orit Simchoni and Mordechai Kislev, “Germination, Genetics, and Growth of an Ancient Date Seed”, Science, 13 June 2008, Vol. 320 no. 5882 p. 1464.

   

   Judean Date Palm, nicknamed Methuselah, growing at Kibbutz Ketura, Israel. July 8, 2012. Photo: Benjitheijneb, Wikimedia Commons.

   Among olive trees in the Land of Israel there are a few very old ones, known by special names. There is a very old tree known in Arabic as Zeitoun Ahmad Al-Badawi – Ahmad the Bedouin’s olive tree, or in short, Al-Badawi (البدوي), growing in the village of Al-Walaja, near Jerusalem and Bethlehem, in the West Bank. The tree is estimated to be a few thousand years old although no official scientific study has been conducted to verify what its age is exactly.

   

   Al-Badawi olive tree in the village of Al-Walaja, West Bank, Israel, near Bethlehem. Photo: stopthewall.org.

   There are 8 olive trees in Jerusalem on the Mount of Olives in the Garden of Gethsemane (גת שמנים – Gat Shemanim) at the Church of All Nations, on which a detailed study was done by the National Research Council of Italy Trees and Timber Institute CNR-IVALSA. C14 radio carbon dating verified that the current living tissue inside the tree trunks dates as follows: tree #1 – year 1198 CE, tree #4 – year 1092 CE, and tree #7 – year 1166 CE. Unfortunately, the tree trunks of all of the 8 trees are hollow inside due to their age, so there is no way to verify how old the trees really are, since the older material in their trunks is missing, but judging on the diameter of their trunks, which vary between 5-10 meters the trees are much older (probably 2000 – 3000 years old) than 900 years verified by radio carbon dating. See http://www.ivalsa.cnr.it/en/news/dettaglio-news/article/i-segreti-del-giardino-del-getsemani.html, accessed on September 21, 2014; and M. Kislev, Y. Tabak and O. Simhoni, “Identifying the Names of Fruits in Ancient Rabbinic Literature”, Leshonenu, vol. 69, p.279 (Hebrew).

   

   Italian research team taking samples from one of the 8 trees at the Garden of Gethsemane on August 23, 2010. Photo: CNR-IVALSA Trees and Timber Institute.

3. It is not clear how to translate the phrase כְּזַיִת נְטוֹפָה בִּשְׁעָתוֹ (Kezayit Netofa Beshaato) due to a variation in the spelling of the word Netofa. In the Mishna, both in in the Kaufmann and Parma manuscripts, and in Talmud Yerushalmi (Peah 7:1, Daf 31a), in the Leiden manuscript, it is written הַנְטוֹפָה (Hanetofa), with a definite article “ה”, which means “the”. That changes the meaning of the word and implies that it is not a proper name, but rather a descriptor of the object. Therefore, Talmud Yerushalmi (Peah 7:1, Daf 31b) translates it to mean, “as an olive tree that sometimes drips [with oil],” meaning that this tree during some seasons produces a large amount of oil producing olives, more than other trees, which is what makes it special. However, in the Munich Manuscript of Talmud Bavli (Mishna Peah 7:1) and in both manuscripts of the Tosefta it is written נְטוֹפָה (Netofa), without the definite article “ה”, which implies that it is a proper name of a place. Therefore, the Rambam (Mishna Peah 7:1, Venetofa), and the Aruch (Nataf) say that both the Mishna, and obviously the Tosefta, are referring to a specific tree from a town called Netofa, which was famous for its olive production at some particular time in history, and they were called “the olives of Netofa”.

   The town of Netofa is mentioned in three places in the Tanach. In Shmuel 2, (Shmuel 2, 23:28-29) where it is described as being located on a hill. And in Ezra (Ezra 2:22) and Nechemya (Nechemya 7:26), where it implies that it was located next to Bethlehem in Judaea. During the Byzantine period it was called Metofa. Today it is an Arab neighborhood of East Jerusalem called Umm Tuba. Archaeological digs in Umm Tuba in 2006 and 2009 have confirmed that it is the Biblical as well as the Talmudic Netufa. See press release from Israel Antiquities Authority, “Greetings from Ahimelekh and Yehokhil, from Netofa in Judah”, February 23, 2009, http://antiquities.org.il/article_Item_eng.asp?sec_id=25&subj_id=240&id=1496&module_id=#as, accessed on September 21, 2014, and Zubair Adawi, “Jerusalem Har Homa Final Report”, Excavations and Surveys in Israel, Journal 120,  http://www.hadashot-esi.org.il/report_detail_eng.asp?id=866&mag_id=114, accessed on September 21, 2014.

   

   Terrain Map from Google Maps of Netofa from November 6, 2012.

   Netofa should not be confused with another place in Israel called Bet Netofa, which is located in the Lower Galilee in the Valley of Bet Netofa. The Bet Netofa Valley is mentioned in the Mishna (Sheviit 9:5) and in Midrash Rabbah (Bereishit Rabbah 79:6), as a place where Rebbi Shimon Bar Yochai visited during the Shemitah year, sometime at the end of the 1^st, beginning of the 2^nd centuries CE. Bet Netufa is known today as Churvat Bet Netufa (the destroyed Bet Netufa). The reason for its name (literally: the place of dripping) is explained by the Rambam (Mishna Sheviit 9:5). It is called The Place of Dripping because the ground gets very wet there during the rainy season.

   

   The Bet Netofa Valley as seen from Moshav Hararit. June 5, 2012. Photo: Ori, Wikimedia Commons.

   

   Terrain Map from Google Maps of Bet Netofa Valley from November 6, 2012.

   Ironically, in the towns surrounding the Bet Netofa Valley there are still many olive trees which are at least hundreds, and possibly thousands of years old, as their trunks are many meters in diameter. However, that does not really distinguish them from the olive trees in Netofa in Judaea, because the Al-Badawi olive tree is located near there, and it is possible that there used to be many more such old trees in that area as well.

   

   Old olive tree in Deir Hana, Israel near the Bet Netofa Valley. Photo: Kobi Zilberstein, Panoramio.

   It is not clear which Netofa the Tosefta is referring to, but since it does not mention the word “Bet” I would assume that it is talking about Netofa in Judaea.

   I have chosen to translate the word Netofa as a name of the specific location and not as a descriptive term since that is what the reading in the Tosefta manuscripts implies. It is not mentioned in any extant sources that the olives of Netofa in Judaea or Bet Netofa in the Galilee were extra special compared to other olives in Israel, but this Tosefta implies that there was at least one tree there which was very well known during some period in time and legends about it remained until the time of the Tosefta.

4. For an explanation of what is a Seah and why the cutoff limit for any forgotten entity is two Seahs see above Tosefta Peah 2:13, note 7.

5. Chazon Yechezkel (Tosefta Peah 3:14, Bezman Shelo Hitchil Bo and Harei Zeh Shikcha) explains that the difference between whether the farmer started harvesting that tree or not is in the technicality of what is being forgotten. If he did not begin to harvest the tree then the farmer forgot the whole tree and therefore since the tree is famous we assume that eventually he will remember it. But if he already harvested a part of the tree and he just forgot to finish harvesting it then he did not forget the whole tree, but rather he forgot individual olives on the tree and those olives are not famous by themselves, so we assume that he would not remember to go get those olives.

   To me this explanation is farfetched and does not make sense. It simply plays on a legal technicality of what has been forgotten, but in the mind of the farmer his famous tree is the same as the olives on that famous tree, so therefore it should not make a difference whether part of the tree has been forgotten or if it was the whole tree. Either way that tree is famous and we assume that the farmer will remember it.

   It seems to me that the difference whether he started harvesting the tree or not lies in the amount of olives that have been forgotten. All the laws in this Tosefta are not Torah laws. They are all Rabbinical laws. And even though Talmud Yerushalmi cites a verse to support the law of the famous tree it seems to be a regular Asmachta (a reference from the Tanach for a Rabbinical law). This can further be seen from the fact that the person in the Yerushalmi who mentions this derivation is Rebbi Lah, also known as Rebbi Ilah, whom I already mentioned earlier (see Tosefta 3:11, note 2) as someone famous for stating Asmachtas. During the 3^rd century CE, when the Tosefta and the Mishna were written, the Rabbis wanted to protect the farmers from losing too much produce, due to bad farming conditions and rapid inflation. See above Tosefta 2:17, note 4. Therefore they made general rules about when the farmer will most probably lose too much produce and when he will only lose a little bit, which will not hurt him. If the farmer forgot to harvest a whole tree then we assume that that tree contains a large amount of produce, although unknown how much exactly, and therefore we allow the farmer to go back and harvest it. But if he already harvested a part of that tree then it depends how much he forgot on it. If he forgot two Seahs or more then we consider that a lot and the farmer may go back and get it. But if there was less than two Seahs then it is relatively insignificant and the farmer has to leave it for the poor. Of course, this law applies only if the tree is famous, so we assume that the farmer will remember it.

   However, if the tree is not famous then the minimum amount that  the farmer has to forget in order to be allowed to go back and harvest them, is at least three trees growing together, as stated in Mishna Peah 7:1. You may wonder, how come the Rabbis chose to protect the farmer more with a famous tree as opposed to a regular tree, since most trees in any given field are regular, not famous, trees? It seems to me that the Rabbis had to find a legal loop hole, such as the Asmachta of Rebbi Ilah, in order to create this extra protection, because they had to override the standard Torah law of Shikcha which says, that one or two forgotten entities, be they stalks, sheaves, trees, or grapes, are considered Shikcha, but not three. See above Tosefta Peah 3:10, note 1. Without this Asmachta they would need to follow the default law, which required at least three entities to be forgotten in order for them not be considered Shikcha.

   It should be noted that Mishna Peah 7:1 mentions the opinion of Rebbi Yossi who says that Shikcha does not apply to olives at all. Talmud Yerushalmi quotes Rebbi Shimon Ben Yakim, also known as Rebbi Shimon Ben Elyakim, a student of Rebbi Yochanan and a Palestinian Amorah of the 2^nd generation, who explains that this was a special enactment made by Rebbi Yossi after the Bar Kochba rebellion, roughly in 135 CE, when the Roman Emperor Hadrian uprooted most trees in Judaea, or as the Yerushalmi puts it, “destroyed all of the Land of Israel”, which he used to build siege engines for the war. However, later, during Rebbi Shimon Ben Yakim’s time, about 50 years after the end of the Bar Kochba rebellion, when the trees grew back and olives were common again, that law did not apply. For various Talmudic sources about aspects of Rebbi Shimon Ben Elyakim’s life see Aharon Heiman, “Toledot Tannaim Veamorayim”, Volume 3, London, 1909, entry Rebbi Shimon Ben Elyakim, pp. 1156-1157. This clearly proves that the whole reasoning behind the laws in this Tosefta and its parallel Mishna is the protection of the farmers.