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Rambam - 3 Chapters a Day

Maaser - Chapter 4, Maaser - Chapter 5, Maaser - Chapter 6

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Maaser - Chapter 4

1

The obligation to tithe is not established for tevel1 according to Scriptural Law until one2 brings it3 into his home,4 as [implied by Deuteronomy 26:13]: "I removed the sacred produce from the home." [This applies] provided he brings the produce in through the gate, as [ibid.:12] states: "And you shall eat in your gates." If, however, he brought produce in from the roof or from the yard,5 he is exempt [from the obligation] to separate terumah and tithes.6

א

אין הטבל נקבע למעשרות מן התורה עד שיכניסנו לביתו שנאמר בערתי הקדש מן הבית והוא שיכניסנו דרך השער שנאמר ואכלו בשעריך אבל אם הכניס תבואתו דרך גגות וקרפיפות פטור מן התרומה ומן המעשרות:

2

It appears to me7 that lashes are not administered as required by Scriptural Law for eating tevel unless [the obligation to tithe] was established by bringing it into one's home as we explained according to the Oral Tradition.8 If, however, the obligation was established through one of the six ways that we mentioned,9 he is given only stripes for rebellious conduct as mandated by Rabbinic Law.

Similarly, a person who partakes of produce which he desires to bring to the market place after the tasks necessary to prepare it have been completed receives only stripes for rebellious conduct, as we explained.10 For a person who completes [the tasks necessary to prepare his produce] for sale is obligated to tithe only according to Rabbinic Law.

ב

יראה לי שאין לוקין מן התורה על אכילת הטבל עד שיקבע בכניסתו לביתו כמו שביארנו מפי השמועה אבל אם נקבע בשאר הששה דברים שמנינו אין לוקין עליו אלא מכת מרדות מדבריהן וכן האוכל מפירות שדעתו להוליכן לשוק אחר שנגמרה מלאכתן אינו לוקה אלא מכת מרדות כמו שביארנו שאין הגומר למכור חייב במעשר אלא מדבריהם:

3

When a house is less than four cubits by four cubits in area, [bringing produce into it] does not establish an obligation.11 Similarly, [bringing produce onto] a roof does not establish an obligation12 even though [bringing it into] the house below would. If, however, the roof was not four cubits by four cubits in area, e.g., the house ascended on a slant, bringing [the produce] there does not absolve it from the obligation to tithe it.13 Instead, [the roof] is considered as part of the domain of the home.

ג

בית שאין בו ארבע אמות על ארבע אמות אינו קובע וכן הגגים אינן קובעין אף על פי שהבית שלמטה קובע ואם לא היה בגג ארבע אמות על ארבע אמות כגון שהיה הבית משופע ועולה אינו פוטר מן המעשר אלא הרי גג זה כמקצת אויר הבית:

4

Leantos,14 guardhouses,15 summer shelters - i.e., four pillars with a roof on top of them without walls,16 and sukkot17 built by workers who dwell in the vineyard and the gardens in the summer,18 even though they dwell in them throughout the summer and [the sukkot] contain mills and chickens do not establish an obligation to tithe. Similarly, the outer sukkot built by potters19 and the sukkot for the holiday [of Sukkot] during that festival do not establish an obligation.20 For none of these are permanent dwellings.

ד

הצריפין והבורגנין ובתי הקיץ והוא ארבעה עמודים ותקרה על גביהן שנמצא בלא כותלים וכן סוכות שעושין בני הכרמים ובני הגנות בימי הקיץ אע"פ שדרין בהן כל ימי הקיץ ויש בהם רחים ותרנגולין אינן קובעין למעשר וכן סוכת היוצרים החיצונה וסוכת החג בחג אינן קובעין שכל אלו אין דירתן קבע:

5

Leantos and guardhouses establish an obligation to tithe for their owners,21 even though they do not create such an obligation for all people.22 Similar, [bringing produce into] a school or a house of study23 creates an obligation to tithe for a person who abides there and teaches, because they are comparable to his home.24 They do not create an obligation for others.

ה

הצריפין והבורגנין טובלין לבעליהן אף ע"פ שאינן טובלין לכל אדם וכן בית הספר ובה"מ טובל לזה שיושב ומלמד מפני שהם כביתו ואין טובלין לאחרים:

6

When a synagogue or a house of study25 have a dwelling,26 [bringing produce there] establishes [an obligation to tithe].27 If not, no [such obligation] is established.

[Bringing produce to] stables28 and storehouses in the fields that are built to store produce does not establish an obligation to tithe.29 If [these structures] were also intended as dwellings, an obligation is established.30

ו

בהכ"נ ובה"מ אם יש בהן בית דירה קובעין ואם לאו אין קובעין האוריארות והאוצרות שבשדות העשויות למכונס אינן קובעין ואם היו לדירה קובעין:

7

Just as [bringing produce into] a home establishes an obligation to tithe, so too, [bringing produce into] a courtyard establishes such an obligation.31 When produce is brought into a courtyard through the gate,32 an obligation is established even though it was not brought into the home.

ז

כשם שהבית קובע למעשר כך החצר קובעת למעשר ומשיכנסו לחצר דרך השער נקבעו אף על פי שלא הכניסן לתוך הבית:

8

[Into] which type of courtyard must [produce be brought] for an obligation [to tithe] to be established? Any one in which utensils are protected within, one in which a person will not be embarrassed to eat there, or one in which were a person to enter, he would be asked: "What are you looking for?"33 The above also applies to a courtyard which has two inhabitants or is owned by two partners when one opens it and enters and then the other comes and enters or leaves and locks it. Since they open it and lock it, [bringing produce into] it establishes an obligation to tithe.34

ח

אי זו היא חצר הקובעת כל שהכלים נשמרין בתוכה או שאין אדם בוש מלאכול בתוכה או חצר שאם יכנס אדם לה אומרין לו מה אתה מבקש וכן חצר שיש בה ב' דיורין או שהיא לשני שותפין שאחד פותחה ונכנס ואחד בא ונכנס או יוצא ונועל הואיל והן פותחין ונועלין הרי זו קובעת:

9

A gatehouse to a courtyard, an excedra,35 and a porch are governed by the same laws as a courtyard.36 If [bringing produce into] a courtyard would establish an obligation to tithe, [bringing produce into these] establishes an obligation. If not, an obligation is not established in these instances as well.37

ט

בית שער של חצר והאכסדרה והמרפסת הרי הן כחצר אם היתה קובעת קובעין ואם לאו אינן קובעין:

10

When there are two courtyards, one inside the other, [bringing produce into] either of them establishes an obligation to tithe.38 When a potter has [two] sukkot one leading to the other, [bringing produce into] the inner sukkah establishes an obligation to tithe. [Bringing it into] the outer one does not.39 [Bringing produce into] a store establishes an obligation like a home does.40

י

שתי חצרות זו לפנים מזו שתיהן קובעות סוכת היוצרים זו לפנים מזו הפנימית קובעת והחיצונה אינה קובעת והחנות קובעת כבית:

11

When a person transports his produce from one place to another, an obligation to tithe is not established even though he brings it into homes and courtyards while on his journey.41 He may snack from it until he reaches his ultimate destination. [These laws] also [apply] when he returns.42

יא

המוליך פירותיו ממקום למקום אע"פ שהוא נכנס בהן לבתים ולחצרות בדרך לא נקבעו אלא אוכל עראי עד שיגיע למקום שהוא סוף מגמתו וכן בחזרה:

12

Traveling salesmen43 who journey through villages and pass from one courtyard to another may snack from their produce44 until they reach the home where they will spend the night.45

יב

הרוכלין המחזירין בעיירות שהן נכנסין מחצר לחצר אוכלין עראי עד שמגיעין לבית שלנין בו:

13

When a person brings figs from a field to partake of them in a courtyard which is exempt from the obligation to tithe,46 but then he forgot and brought them into his home, he is permitted to take them out from the home and snack from them.47 Similarly, if he forget [and after taking them into his home], took them up to the roof,48 he may snack from them on the roof.

If he brought them to partake of them49 on his roof and brought them into a friend's courtyard, an obligation to tithe is established and he should not partake of them until he tithes them.50

יג

המביא תאנים מן השדה לאוכלן בחצר הפטורה מן המעשרות שכח והכניסן לתוך ביתו ה"ז מותר להוציאן ולאכול מהן עראי וכן אם שכח והעלן לגג אוכל מהן בגג עראי הביאן לאכלן בראש גגו ושכח והכניסן לתוך חצר חבירו נקבעו ולא יאכל עד שיעשר:

14

When a courtyard has been plowed, it is considered like a garden51 and one may snack in it. [This applies] provided he plowed the majority [of the courtyard].52 If he sowed the majority of it,53 he may not snack in it.54The same law applies if he planted trees in it.55 If he planted trees in the courtyard to make it attractive,56 since the field has been plowed, he may snack from those trees [without tithing].

יד

חצר שהיא נעדרת הרי היא כגנה ואוכלין בתוכה עראי והוא שיעדר רובה ואם זרע רובה אין אוכלין עראי וכן אם נטע רובה ואם נטע לנוי חצר הואיל והיא נעדרת הרי זה אוכל עראי מאותן אילנות:

15

When a fig tree is growing in a courtyard, one may eat57 figs from it one by one while exempt [from tithing]. If he gathers them together, he is obligated to tithe.58

When does the above apply? When he is standing on the ground. If, however, he climbs to the top59 of the fig tree, he may fill his bosom with them and eat them there. For the open space of a courtyard does not create an obligation to tithe.

טו

תאנה העומדת בחצר אוכל ממנה אחת אחת ופטור ואם צירף חייב במעשר בד"א בשהיה עומד בקרקע אבל אם עלה לראש התאנה ממלא חיקו ואוכל שם שאין אויר חצר קובע למעשר:

16

[If a fruit tree] was standing in a courtyard and leaning into a garden, one may partake of the tree while standing in the garden in his ordinary manner,60 as if the tree was planted in the garden.61 If [the tree] was planted in a garden and leaning into a courtyard, it is considered as if it was planted in the courtyard and one may only partake of them one at a time.

טז

היתה עומדת בחצר ונוטה לגנה ה"ז אוכל ממנה בגנה כדרכו כאילו היתה נטועה בגנה היתה נטועה בגנה ונוטה לחצר הרי זו כנטועה בחצר שאינו אוכל שם אלא אחת [אחת]:

17

When a vine is planted in a courtyard, one should not pick an entire cluster and partake of it. Instead, one should pick the grapes one by one.62 Similarly, with regard to pomegranates, one should not take the entire pomegranate, but instead should divide the pomegranate while it is on the tree and partake of the seeds from it. Similarly, with regard to a watermelon, one should bend it over to the ground and partake of it there.

If one was eating a cluster [of grapes] in a garden and brought it into a courtyard,63 one should not continue eating until he tithes even if he departs from the courtyard.64

יז

גפן שנטועה בחצר לא יטול את כל האשכול ויאכל אלא מגרגר אחד אחד וכן ברמון לא יטול את כל הרמון אלא פורט את הרמון באילן ואוכל הפרד משם וכן באבטיח כופתו בקרקע ואוכלו שם היה אוכל באשכול בגנה ונכנס מן הגנה לחצר אף על פי שיצא מן החצר לא יגמור עד שיעשר:

18

When coriander65 is planted in a courtyard,66 one may pick it leaf by leaf and partake of it. If one gathers them together, he is obligated to tithe. Similar laws apply in all analogous situations.

יח

כסבר הזרועה בחצר מקרסם עלה עלה ואוכלו ואם צירף חייב לעשר וכן כל כיוצא בזה:

Footnotes
1.

Produce from which the tithes (and/or terumah) have not been separated. In his Commentary to the Mishnah (Berachot 7:1), the Rambam interprets this as a composite of the words tav lo, meaning "it is not good."

2.

From Chapter 3, Halachah 7, and Halachah 5, of this chapter, one might surmise that this applies whether the owner of the produce or another person brought it into the owner's home.

3.

From Chapter 3, Halachah 4, it appears that this refers to produce for which all the tasks necessary to prepare it were completed.

4.

Although according to Rabbinic Law, it is sufficient to bring the produce into one's courtyard as stated in Chapter 3, Halachah 3, according to Scriptural Law, it must be brought into one's home.

5.

More particularly, the term karfef used by the Rambam, refers to an unprotected yard.

6.

He is, however, liable according to Rabbinic Law, in these instances. In his notes to Berachot 35b, the Meiri writes that even according to Scriptural Law, it is forbidden to do this as an initial preference; the leniency is granted only after the fact.

7.

This expression introduces a deduction for which the Rambam has no definite prior source in the Rabbinic literature. The Kessef Mishneh questions why the Rambam uses this expression when the Jerusalem Talmud (Ma'aserot 3:1) explicitly states that the obligation established by three of the six situations is Rabbinic in origin. He explains that there is no explicit source for the other three. Hence, this expression is appropriate.

8.

In the previous halachah.

9.

In Chapter 3, Halachah 3.

10.

See Chapter 2, Halachah 1.

11.

Since it is so small, it is not fit to serve as a dwelling. Based on Hilchot Mezuzah 6:2, one might assume that tithes are required if the home comprises this area even though it is not square in shape.

12.

For roofs are not considered as dwellings.

13.

I.e., since the roof is small, it is not considered as an independent entity, but instead, is considered as part of the home (Kessef Mishneh).

14.

Shelters made of branches and wood [the Rambam's Commentary to the Mishnah (Ma'aserot 3:7].

15.

Our translation is based on the Rambam's Commentary to the Mishnah (ibid.).

16.

Structures constructed to provide shade from the summer sun.

17.

Booths that do not have permanent roofs.

18.

This is the meaning of the term sukkot Ginosar in the mishnah (loc. cit.). Ginosar (the area around Lake Kinneret) was known for the quality and abundance of its produce. Workers would be hired to pick this produce during the harvest and they would construct semi-permanent structures in which they would dwell over the summer.

19.

Potters would construct sukkot with two rooms. The inner room would be their dwelling, while the outer room would serve as a workshop and storefront. If produce was brought into the inner sukkah, the obligation to tithe is established. See the notes to Halachah 9 with regard to this ruling.

20.

Note the clarification in the following halachah.

21.

I.e., if the owners of these structures bring produce into them, they are obligated to tithe it before partaking of it.

22.

I.e., if a person brings produce into a house belonging to a colleague, he is not obligated to tithe it. On the surface, the question may be raised: Even if a person brings produce into a colleague's home, he is not obligated to tithe it, as stated in Halachah 1. Why then are a leanto and a guardhouse singled out here?

It is possible to explain, however, that if a person makes it a practice of bringing produce into a colleague's home, he becomes obligated to tithe it when he does so. In contrast, even if he makes a practice of bringing produce into his colleague's leanto, an obligation to tithe is not established, because a leanto is not a permanent dwelling.

23.

From the Jerusalem Talmud (Ma'aserot 3:7), it appears that the term "school" refers to a school where young children are taught Scripture, while the term "house of study" refers to a study center where older students are taught the Oral Law.

24.

Even if he does not have an apartment there, since he is continually there, it is considered as his established abode (Radbaz, gloss to Halachah 6).

25.

In contrast to the house of study mentioned in the previous halachah, this is a house of study for adults where they meet and share ideas (Radbaz).

26.

For the sexton, as was common in certain situations.

27.

Since it contains a dwelling for the sexton, even the portion of the structure that serves as a synagogue or a house of study is considered as part of a dwelling (Radbaz). See also parallel rulings in Hilchot Mezuzah 6:6 and Hilchot Shabbat 28:4.

28.

Our translation is based on the gloss of Rabbi Yosef Korcus who cites II Chronicles 9:25.

29.

For until the produce has been brought to a dwelling or the marketplace, it is still considered as being in an intermediate phase of preparation.

30.

In this instance as well, if the structure contains an apartment, e.g., for a guard or the like, bringing produce into any part of the structure establishes an obligation to tithe.

31.

A distinction must, however, be made. The obligation to tithe produce brought into a home is Scriptural in origin and the obligation to tithe produce brought into a courtyard is of Rabbinic origin.

32.

In Halachah 1, the Rambam makes such statements with regard to bringing produce into a home. He deduces that similar concepts apply with regard to bringing it into a courtyard.

33.

All of these signs are indications that the courtyard is regarded as private property and not the public domain.

34.

I.e., although two people share it, and one may carelessly leave it open, since the other locks it, it is regarded as private property. Hence bringing produce into it establishes the obligation to tithe.

35.

A structure common in Greek and Roman times with two or three walls and a roof. (Occasionally, there would be an opening in the roof.)

36.

In and of themselves, these structures are not considered dwellings and bringing produce into them would not create an obligation. Nevertheless, since they lead to and/or are auxiliaries to an area that is considered part of a permanent dwelling, they are considered as part of that dwelling.

The Radbaz notes that in Halachah 4 and in the following halachah, the Rambam states that bringing produce into a potter's outer sukkah does not create an obligation, while bringing it into the inner sukkah does. Why don't we, he asks, apply the same principle? Let us say that the outer sukkah is an entrance and/or auxiliary to the inner one. He explains that for the inner sukkah to create an obligation is itself a new development and the obligation is not strong enough to be extended to the outer sukkah.

37.

For as above, in and of themselves, these structures are not considered significant dwellings.

38.

For they are both considered as permanent structures, leading to and auxiliary to the home.

39.

See the notes to Halachah 4 and those to the previous halachah. The commentaries question why the Rambam repeats the same law in such close proximity.

40.

Since a person spends much time in his store, it is considered as equivalent to a home for him.

41.

The Radbaz emphasizes that if the person spends a Sabbath on his journey, the commencement of the Sabbath establishes an obligation to tithe as stated in Chapter 3, Halachah 3.

42.

I.e., if he does not transport the produce to his intended destination, but instead, changes his mind in the middle, and returns with it (Kessef Mishneh).

43.

Who sell perfumes to women [the Rambam's Commentary to the Mishnah (Ma'aserot 2:3)].

44.

This is speaking about their own produce or produce which was given to them to partake of (ibid.). If they were intending to sell the produce, there is an immediate obligation to tithe it. It is like bringing it to the marketplace (see Chapter 3, Halachah 2).

45.

Rav Yosef Korcus explains that in this instance - in contrast to the previous halachah - the obligation falls before they reach their ultimate destination. The rationale for the distinction is that since these traveling salesmen do not have an ultimate goal, wherever they spend the night is significant for them.

46.

I.e., one which is not guarded (Halachah 8).

47.

For bringing produce into his home does not establish an obligation to tithe unless the person brings them there intentionally (see Chapter 3, Halachah 5). The person must, however, remove them from the home. He may not partake of them in the home without tithing them.

48.

For bringing produce to a roof does not establish an obligation to tithe (Halachah 3).

49.

This is the version in the standard printed texts of the Mishneh Torah and is also found in authoritative manuscripts and early printings. The version of the Mishneh Torah which the Radbaz and Rav Yosef Korcus followed states: "brought them to dry them on the roof."

50.

The Ra'avad differs with the Rambam's ruling, explaining that bringing produce into a friend's courtyard does not establish an obligation to tithe unless one does so intentionally, but not when one does so out of forgetfulness. He also cites a version of the Tosefta (Ma'aserot 2:10) which supports his understanding.

Rav Yosef Korcus offers two justifications for the Rambam's ruling. First of all, he states that the phrase "he should not partake of them" could be interpreted as referring to the owner of the courtyard and not to the owner of the produce. Alternatively, he explains that even if it refers to the owner of the produce, since the courtyard he brings it into is part of a permanent dwelling, he should not partake of it until he tithes it. Leniency was given to traveling salesmen (Halachah 13), because they brought the produce into the courtyard with the intent of removing it immediately. In this instance, however, the owner does not necessarily intend to remove it immediately. Why then should he not be obligated to tithe?

In his gloss to Chapter 5, Halachah 8, the Ra'avad notes a seeming contradiction to the Rambam's ruling here. In his gloss to that halachah, the Radbaz explains that the stringency here is to correct a misimpression that might result in the eyes of an observer. The Kessef Mishneh, however, finds the Rambam's rulings difficult to reconcile and suggests that there is a printing error here.

Nevertheless, Rav Yosef Korcus continues, the Rambam's statements appear to be self-contradictory, because in the previous clause it appears that if one brings produce into a home after forgetting, he is not obligated to tithe it, but this clause states that if he brings it into his colleague's courtyard, he is. Seemingly, bringing it into one's own home would be a stronger factor than bringing it into a colleague's courtyard. Among the resolutions he offers is that when a person forgets and brings the produce into his own home, he is certainly acting inadvertently, without intent. If, however, he brings it into his colleague's courtyard, that could be considered as a conscious change of mind.

51.

I.e., it is no longer considered as an extension of the home, but as a separate entity like a field.

52.

For once he has plowed the majority, he will certainly plow the remainder.

53.

But not the entirety of the courtyard.

54.

The rationale is that since he did not sow the entire courtyard, we assume that his sowing is only temporary and soon, he will revert to considering the courtyard as that and not as a field.

55.

The Ra'avad differs with the Rambam on this point, maintaining that planting trees does not remove land from the category of a courtyard. He explains that the Rambam used an incorrect version of the Jerusalem Talmud (Ma'aserot 3:10). For the Rambam's version of that passage conflicts with the rulings of Eruvin 23a regarding eruvin. The Kessef Mishneh explains that the obligations of eruvin and tithes are governed by different principles and deductions cannot necessarily be made from one situation to the other.

56.

This indicates that he is not intending to uproot them and return the area to the function of an ordinary courtyard. Hence, it is considered as an orchard and he may snack from the produce before tithing.

57.

In this and in the following halachot, the intent is to snack, not to eat a significant meal.

58.

For he is then considered to have completed the work associated with harvesting figs and they are in a courtyard. Compare to Chapter 5, Halachah 3.

59.

I.e., any place above three handbreadts off the ground (Radbaz).

60.

I.e., he can collect them instead of eating from them one by one.

61.

In other instances (see Ma'aserot 3:10), the foliage of the tree is considered as being in the same domain as its trunk. In this instance, however, the ruling depends on the domain in which the produce is collected.

62.

Following the same logic stated in Halachah 15.

63.

This applies to an instance where one intentionally brought the produce into the courtyard. If one did so unintentionally, there is no obligation to tithe as stated in Halachah 13.

64.

I.e., once the produce has entered the courtyard, the obligation to tithe is irrevocably established.

65.

Our translation is taken from Rav Kappach's translation of the Rambam's Commentary to the Mishnah (Ma'aserot 3:10).

66.

One in which the majority was sown as stated in Halachah 14.

Maaser - Chapter 5

1

When a person purchases detached produce to partake of it, he is obligated to tithe it according to Rabbinic decree as we explained.1

When is the obligation [to tithe] established? When [the purchaser] pays [for the produce], even if he has not drawn it [into his domain].2 If [a potential purchaser] was selecting and setting aside, selecting and setting aside, even if he did so the entire day and even if he made up his mind to purchase the produce,3 he is not obligated to tithe it. If he is a God-fearing person, from the time he made up his mind, he should tithe it.4 Afterwards, if he desires to return it to the seller, he may return it.5

א

הלוקח פירות תלושין לאוכלן נקבעו למעשר מדבריהם כמו שביארנו ומאימתי יקבעו משיתן את הדמים אע"פ שלא משך הרי שלא נתן דמים והיה בורר ומניח בורר ומניח אפילו כל היום כולו ואף על פי שגמר בלבו ליקח לא נתחייב לעשר ואם היה ירא שמים משגמר בלבו מעשר ואח"כ יחזיר למוכר אם רצה להחזיר:

2

When a person purchases produce that is attached to the ground or purchases detached produce6 to send to a colleague, [an obligation to tithe] is not established and he may snack from them.7

ב

הלוקח במחובר לקרקע או שלקח תלוש לשלוח לחבירו לא נקבעו ויש לו לאכול מהן עראי:

3

When a person tells a colleague: "Here is an isar8 and give me five figs for it," he may eat them one by one and he is exempt [from the obligation to tithe]. If [the seller] gathers them together, he is obligated to tithe them.

[If he says:] "Here is an isar for 20 figs that I will select,"9 he may select them one by one and eat them.10 "...For a cluster of grapes that I will select," he may pick them individually from the tree and partake of them. "...For a pomegranate that I will select," he may remove the seeds while on the tree and partake of them. "...For a watermelon that I will select," he may bend it over to the ground and partake of it.

If he cut off the figs and gathered them together or cut off the cluster of grapes or the watermelon, he is obligated to tithe, because he purchased the produce in its detached state.11 If, however, he told him: "Here is an isar for these 20 figs," "...for these two12 clusters of grapes," "...for these two pomegranates," or "...for these two watermelons," he may harvest the produce in an ordinary manner and snack on it," for the obligation to tithe was not established, for he purchased the produce while it was attached.13

ג

האומר לחבירו הא לך איסר זה ותן לי בו ה' תאנים ה"ז אוכל אחת אחת ופטור ואם צירף חייב לעשר הא לך איסר זה בעשרים תאנים שאבור לי בורר אחת אחת ואוכל באשכול שאבור לי מגרגר ממנו באילן ואוכל ברמון שאבור לי פורטו באילן ואוכל באבטיח שאבור לי כופת בקרקע ואוכל ואם קצץ את התאנים וצירפם או שקצץ האשכול או האבטיח חייב לעשר שהרי לא קנה אלא הנתלש אבל אם אמר לו הא לך איסור בב' תאנים אלו בב' אשכולות אלו בשני רמונים אלו בב' אבטיחים אלו קוצץ כדרכו ואוכל עראי ופטור שלא נקבעו במקח שהרי לקחן במחובר:

4

When a person exchanges [produce]14 with a colleague and each have the intent of eating, an obligation has been established to tithe both lots of produce, for they have been purchased while detached.15 [If they are exchanged while attached, with] each one having to reap the others crops, an obligation has not been established for either of them, for a sale does not establish an obligation [to tithe] unless the work associated with its preparation is completed as we explained.16

If one purchased produce to eat17 in an exchange and the other purchased produce to reap in the same exchange, the one who purchased produce to eat is obligated to tithe, while the obligation to tithe has not been established for the one who purchased produce to reap.

ד

המחליף עם חבירו זה לאכול וזה לאכול שניהן נקבעו למעשרות שהרי לקחו בתלוש זה לקצות וזה לקצות שניהן לא נקבעו שאין המכר קובע דבר שלא נגמרה מלאכתו כמו שביארנו לקח האחד פירות שהחליף לאכילה ולקח האחר חליפיהן להקצותן זה שלקח לאכילה חייב לעשר וזה שלקח להקצותן לא נקבע למעשר:

5

When a person tells a colleague: "Go out and gather 20 figs of mine for yourself18 and I will fill my gut with your produce," both are exempt.19 This is not considered as an exchange that is comparable to a sale.20 If he gathers [the produce] together and partakes of it, he is liable.21 [Giving produce as] a present does not establish an obligation to tithe as a sale does.22

ה

האומר לחבירו צא ולקט לך עשרים תאנים משלי ואני אמלא את כרסי משלך שניהם פטורים שאין זה חליפין כדי שיהיה מכר ואם צירף ואכל חייב:

6

When a common person23 is passing through the marketplace and saying: "Take figs,"24 one may partake of them25 and one is exempt [from the obligation to tithe], for a present does not establish such an obligation.26

[Different rules apply when the recipients] brings the produce home. If the majority of the people [who harvest] bring their produce home [before taking it to the marketplace], one must certainly separate the tithes.27 If most of the people take the produce directly to the market place, he should only make the separations28 as one does for demai,29 for perhaps he tithed it and then brought it to the marketplace.

If [the common person] said: "Take them and bring them to your homes,"30 when one takes them home, he must tithe them as one tithes demai.31 If [the common person] gave him a large amount of produce - even if he told him: "Take it and eat it,"32 - it is as if he told him, "Take it and bring it home."33 He may not partake of it until he makes the separations as one does for demai.34 Similarly, if he gave him produce that is not usually eaten uncooked or the recipient was a person of stature who would not ordinarily eat in the marketplace, he should make the separations as one does for demai.

ו

והמתנה אינה קובעת כמכר ע"ה שהיה עובר בשוק ואמר טלו לכם תאנים אוכלים ופטורין שאין המתנה קובעת ואם הכניסו לבתיהן אם רוב העם מכניסים לבתים מעשרים ודאי ואם רוב העם מכניסים לשוק אין מתקנים אלא דמאי שמא עישר ואחר כך הביא לשוק ואם אמר טלו לכם והכניסו לבתים כשמכניס לבית מעשר דמאי נתן לו דבר מרובה אפילו אמר לו טול ואכול ה"ז כמי שאמר לו טול והכניס שאינו אוכל עד שיתקן דמאי וכן אם נתן לו דבר שאין דרכו להאכל חי או שהיה אדם גדול שאין דרכו לאכול בשוק ה"ז מתקן דמאי:

7

If there were two [prospective recipients] and [the common person] said to one: "Take it and partake of it [here in the marketplace]," and he told the other: "Take it and bring it home," the first may partake of it and be exempt [from the obligation to tithe],35 while the second is obligated if he eats.36

ז

היו שנים אמר לאחד טול ואכול ואמר לשני טול והכניס זה אוכל ופטור וזה אוכל וחייב:

8

Similarly,37 if there were people sitting at the gate [of a courtyard] or in a store and [the common person] told them: "Take [this produce] and partake of it," they may partake of it38 and are exempt [from the obligation to tithe].39 The owner of the gate or the owner of the store may not partake of it until he makes the separations as one does for demai. For it is as if [the common person] told these people: "Take it and bring it home," for [these places] are considered like their homes.40 As we already explained,41 having produce pass through a house that is not one's own does not establish [an obligation to tithe].42

ח

וכן אנשים שהיו יושבים בשער או בחנות ואמר להם טלו ואכלו הרי אלו אוכלין ופטורין ובעל השער או בעל החנות לא יאכל עד שיעשרו דמאי שנמצא כאומר לאלו טלו והכניסו לבתיכם שהרי הם כבתיהם וכבר ביארנו שאין הבית שאינו שלו קובע לו כשיעברו הפירות בתוכו:

9

[The following rules apply when one] hires workers to perform work with him concerning produce, whether produce that has been detached or that which is attached. Since [the workers] have the right to partake of the produce with which they are working according to Scriptural Law,43 they may partake of it and are exempt from tithing.44

[Different rules apply if the employer] agreed to a condition that allowed them to partake of produce to which the Torah did not entitle them, e.g., the worker stipulated that his son could partake of the produce with him, his son could partake of the produce as payment of his wages, or that he would be able to [continue] partaking of the produce which was harvested after the work [involved in its preparation] was completed, he is forbidden to partake of the produce until he tithes it. [The rationale is that] since he is partaking of the produce because of the condition, he is like a purchaser.45

ט

השוכר את הפועלים לעשות עמו בפירות בין בתלושין בין במחוברין הואיל ויש להם לאכול מן התורה במה שהן עושין הרי אלו אוכלין ופטורים מן המעשר ואם התנה עמהן שיאכלו מה שלא זכתה להן תורה כגון שהתנה עמהן הפועל שיאכלו בניו עמו או שיאכל בנו בשכרו או שיאכל אחר גמר מלאכתו בתלוש ה"ז אסור לאכול עד שיעשר הואיל ואוכל מפני התנאי ה"ז כלוקח:

10

If [an employer] hired [a worker] to hoe around olive trees46 and the worker stipulated that he could partake of the olives, he may eat them one by one from the tree and he is exempt [from the obligation to tithe].47 If he gathers them together, he is obligated.48

י

שכרו לנכש עמו בזיתים והתנה הפועל שיאכל בזיתים ה"ז אוכל מן האילן אחת אחת ופטור ואם צירף חייב:

11

If one hired [a worker] to hoe around onions49 and he stipulated that he could partake of the green onions,50 he can cut off leaf by leaf and partake of them [without tithing], if he gathered them together, he is obligated.51

If a worker52 stipulated that he could eat a litra53 of olives, he may eat them one by one [without having to tithe them]. If he gathered them together, he is obligated to tithe. [The rationale is that] since he is eating a fixed measure, he is considered as a purchaser and [in such an instance,] if the produce is gathered together, his obligation to tithe is established. If he did not make a stipulation and instead, was eating as authorized by Torah Law, he may gather together and eat as much as he desires,54 provided he does not dip them in salt. If he dips them in salt,55 he is permitted [to eat them] one by one [without tithing].56 [To eat them] two by two is forbidden, for the obligation to tithe is established by dipping them in salt.57

יא

שכרו לנכש בבצלים והתנה לאכול ירק מקרסם עלה עלה ואוכל ואם צירף חייב קצץ הפועל שיאכל ליטרא של זיתים אוכל אחת אחת ואם צירף חייב לעשר הואיל והוא אוכל דבר קצוב ה"ז כלוקח שאם צירף נקבע לא קצץ אלא היה אוכל כדין תורה מצרף ואוכל כל מה שירצה והוא שלא יספות במלח אבל אם ספת במלח אחת אחת מותר שתים שתים אסור שהרי נקבעו [במלח]:

12

When a worker was performing work with lower quality figs,58 he should not partake59 of higher quality figs.60 If he was performing work with higher quality figs, he should not partake of lower quality figs unless he tithes them. He is permitted, however, to refrain from eating until he reaches the higher quality figs.

יב

פועל שהיה עושה בלבסין לא יאכל בבנות שבע בבנות שבע לא יאכל בלבסין עד שיעשר אבל יש לו למנוע עצמו עד שיגיע למקום היפות:

13

When a person takes workers out to his field to perform work for him there,61 if he is not required to provide them with food, they may partake of the produce of the field62 [when granted permission by the owner],63 and they are exempt from the tithes,64 provided the tasks associated with [the preparation of the produce] are not completed.65 If, however, he is required to provide them with food, they should not eat [of the produce of the field] even though they have not completed their tasks.66 [The rationale is that] we do not pay a debt from tevel.67 [Even in such a situation, the workers] should partake of the figs one by one. They may not, however, [partake of those] in a basket or in a container or those set aside.68

יג

המוציא פועלים לעשות לו מלאכה בשדה בזמן שאין להן עליו מזונות אוכלין מפירות שבשדה ופטורין מן המעשר והוא שלא נגמרה מלאכתן אבל אם יש להן עליו מזונות לא יאכלו ואף ע"פ שלא נגמרה מלאכתן שאין פורעין חוב מן הטבל אבל אוכלין אחת אחת מן התאנה אבל לא מן הסל ולא מן הקופה ולא מן המוקצה:

14

When one cooks produce, boils it,69 or pickles it,70 one establishes an obligation to tithe.71 If, however, one smokes produce until it is prepared [to be eaten], there is a doubt [whether there is an obligation to tithe].72

יד

אחד המבשל ואחד השולק ואחד הכובש קובע למעשר אבל המעשין את הפירות עד שהכשירן ה"ז ספק:

15

When a person buries his produce in the ground, in straw, or in fertilizer before preparing them to be eaten,73 the obligation to tithe them is not established.74

טו

הטומן פירות באדמה או בתבן או בזבל עד שהכשירן לאכילה לא נקבעו למעשר:

16

When a person places wine into a cooked dish that is hot75 or he places oil in a pot or a baking dish when they are boiling, he establishes an obligation to tithe. If he mixes wine with hot water, he establishes an obligation to tithe. Needless to say, that if he cooks wine, even in the wine press, it is forbidden to drink from it unless he tithes it.

טז

הנותן יין לתבשיל חם או שנתן שמן לקדרה באלפס כשהן מרותחין נקבעו למעשר מזג יין במים חמים נקבע ואין צריך לומר אם בישל היין ואפילו בגת שאסור לשתות ממנו עד שיעשר:

17

When garlic, cress, or mustard seed were crushed in the field and mixed with oil,76 an obligation to tithe was established.77 Similarly, if one squeezes a cluster [of grapes] into a cup, an obligation to tithe was established.78 [If he squeezes it] into a pot,79 an obligation was not established.80

יז

השום והשחלים והחרדל ששחקן בשדה בשמן נטבלו למעשר וכן הסוחט אשכול לתוך הכוס נקבע לתוך התמחוי אינו נקבע:

18

When a person salts produce in the field, an obligation to tithe is established.81 If, however, he dips olives into salt one by one and eats them, he is exempt. A person who opens olives so their fluid82 will flow out, is exempt. A person who removes olives from the storage vat,83 may dip them in salt one by one and eat them. If, however, he salted [several] and served them, he is obligated [to tithe]. Similar laws apply in all analogous situations.

יח

המולח פירות בשדה נקבעו טבל הזיתים אחד אחד במלח ואכל פטור הפוצע זיתים כדי שיצא השרף מהם פטור הנוטל זיתים מן המעטן טובל אחד אחד במלח ואוכל ואם מלח ונתן לפניו חייב וכן כל כיוצא בזה:

19

[Even though] a person separates terumah from his produce in a manner that requires him to make a second separation,84 the obligation to tithe is established.85 He should not [even] snack from it until he separates terumah a second time and tithes.

יט

התורם פירותיו תרומה שצריך לתרום אחריה שנייה נקבעו למעשר ולא יאכל מהן עראי עד שיוציא התרומה השנייה ויעשר:

20

When the work associated with the preparation of produce has been completed86 and nightfall arrives on Friday, the obligation to tithe takes effect.87 One may not partake of them88 even after the Sabbath until they are tithed.

כ

פירות שנגמרה מלאכתן וחשכה עליהן לילי שבת נקבעו ולא יאכל מהן אפילו לאחר השבת עד שיעשר:

21

When children hid figs for the Sabbath and forgot to tithe them, one should not partake of them Saturday night until they are tithed.89

כא

תינוקות שטמנו תאנים לשבת ושכחו לעשרן לא יאכלו למוצאי שבת עד שיעשרו:

22

If there was a fig tree that was designated for one to partake of its produce on the Sabbath90 and one gathered a basket [of these figs], one may not partake of them91until he tithes them. [This stringency was established,] because these figs are designated for the Sabbath and the Sabbath establishes an obligation to tithe.

כב

תאנה שהיתה מיוחדת לו לאכול פירותיה בשבת וליקט ממנה כלכלה לא יאכל עד שיעשר הואיל ופירות אלו מיוחדין לשבת והשבת קובעת:

23

If a person was eating92 a cluster of grapes and nightfall arrived on Friday, he should not finish eating them on the Sabbath unless he tithes them.93 If he sets them aside until after the Sabbath, he may finish them.94

כג

היה אוכל באשכול וחשכה עליו לילי שבת לא יגמור אכילתו בשבת עד שיעשר ואם הניחן לאחר שבת ה"ז גומרו:

Footnotes
1.

See Chapter 2, Halachot 1-2 which explain that according to Scriptural Law, one is obligated to tithe produce only when he harvests it for his own personal use. Similarly, one who purchases produce is not liable to tithe it according to Scriptural Law.

As indicated by the following halachah, this applies when the purchaser bought the produce to partake of it. If he purchased it as merchandise, the obligation to tithe does not take effect until one purchases it with the intent of partaking of it.

2.

With regard to the laws of acquisition, according to Scriptural Law, the payment of money brings about a kinyan, the transfer of an object from one person's domain to another. Nevertheless, our Sages decreed that such a transfer should be brought about by drawing the object to be acquired out of the seller's domain (meshichah; see Hilchot Mechirah 3:5). Nevertheless, with regard to the obligation to tithe, they did not alter the Scriptural Law.

3.

For making up his mind does not establish a binding obligation.

4.

For a Torah sage should go beyond the letter of the law and accept financial responsibilities that are not mandated by Torah Law. See Hilchot De'ot, the conclusion of ch. 5.

5.

The Radbaz and the Kessef Mishneh emphasize that he should not return the produce unless the seller agrees. Nevertheless, even if the seller agrees to accept the produce, the purchaser must make restitution from his own produce or funds for the produce that he tithed.

6.

This applies even if the work necessary to prepare it has been completed.

7.

Although our Sages required one who purchases produce to tithe it, they instituted this obligation only when one intended to partake of it himself, just as the Scriptural obligation to tithe applies only for a person who harvests produce to partake of it himself (Siftei Cohen 331:119).

8.

A coin used in the Talmudic era of moderate value.

9.

His wording implies that he acquires them after he selects them and picks them from the tree, for the terms of purchase state that he would "select it," i.e., detach it.

10.

Without tithing.

11.

I.e., though it was attached when he negotiated the deal, the purchase takes effect after he detaches it. Hence, he is obligated to tithe the produce, because a sale is one of the factors that establish such an obligation [the Rambam's Commentary to the Mishnah (Ma'aserot 2:6)].

12.

The Radbaz questions why the Rambam mentions two clusters of figs. The same laws would apply if only one cluster was involved. He explains that since it is not common for people to purchase a large amount of produce while it is still attached to the ground, it is important to emphasize that this law applies even when he purchases a large amount.

13.

And a sale of attached produce does not convey an obligation to tithe.

14.

As stated in Hilchot Mechirah 5:1, an exchange is considered as equivalent to a sale.

15.

Hence it is forbidden even to snack from them.

16.

Chapter 3, Halachah 3.

17.

I.e., detached produce.

18.

I.e., the produce is on the trees and it does not become the other person's until he picks it.

19.

The Ra'avad differs with the Rambam and maintains that the person who partakes of a particular number of figs is obligated to tithe them. The Radbaz and the Kessef Mishneh justify the Rambam's ruling.

20.

Instead, it is considered as if each person gave the other a present.

21.

For partaking of untithed produce.

22.

There are certain dimensions of Jewish business law in which a present is considered as a sale and others in which it is not (see Hilchot Gezeilah 9:13; Hilchot Mechirah 29:14). The Jerusalem Talmud (Ma'aserot 2:1) states that even those authorities who maintain that giving a present should be considered as a sale (see Hilchot Shemitah VeYoval 11:19) agree that this stringency should not be enforced in the present age, because in the present age, the obligation to tithe is of Rabbinic origin. The Rambam mentions this leniency without differentiating between the era when the obligation to tithe was Scriptural and the present age, because he maintains that the entire obligation to tithe produce obtained through purchase is of Rabbinic origin.

23.

Who is not necessarily relied upon with regard to tithes.

24.

As presents [the Rambam's Commentary to the Mishnah (Ma'aserot 2:1)].

25.

As a snack.

26.

For we assume that the produce has not been taken home and thus has not incurred the obligation to be tithed. Hence, one is permitted to snack from it without tithing (ibid.).

27.

Since the common person passed through the marketplace and did not stand there to sell his produce, we assume that he is one of those who brings his produce home. Furthermore, we proceed on the assumption that he has not taken the produce home yet and thus it never incurred the obligation to be tithed. Therefore when the recipients take it home, it incurs that obligation for the first time. Indeed, they must separate not only the tithes, but also terumah.

28.

These separations must be made, for in such a situation, the produce incurs the obligation to be tithed after the work associated with its preparation was completed (see Chapter 3, Halachah 1).

29.

As will be explained in Chapter 9, in the Second Temple period, the common people became somewhat lax with regard to the mitzvah of separating tithes. When they became aware of this situation, the Sages ordained that one should not partake of produce from a common person without tithing it, for perhaps he did not do so. One should not, however, recite a blessing, for it is possible that it was tithed. Similarly in this instance, it is possible that the common person tithed his produce, but it is possible that he did not.

30.

I.e., he is assuring the recipients that they may take the produce home without qualms because it has already been tithed [the Rambam's Commentary to the Mishnah (loc. cit.)].

31.

For we do not accept the common person's word (ibid.).

32.

Which could be interpreted as assurance that the produce had not been taken home by the common person and thus it has not yet been tithed.

33.

Because a large amount of produce will certainly not be eaten in the marketplace. We do not rely on the common person's assurance that he tithed it or that he will tithe it in the future.

34.

For we are unsure of whether or not it was tithed or not. The same concepts apply with regard to the instances mentioned in the later clauses.

35.

As in the first clause of the previous halachah.

36.

As in the later clause. The fact that his statements are self-contradictory is not a matter of concern, for the obligation to tithe is Rabbinic in origin and our Sages established their rules as general guidelines to be applied even if some ramifications are difficult to understand (Aruch HaShulchan).

37.

I.e., here to, the above principles produce seemingly contradictory rulings.

38.

As a snack. They may not eat a significant meal.

39.

Even if it is brought within the gate or the store.

40.

For they are located there on a consistent basis [the Rambam's Commentary to the Mishnah (Ma'aserot 2:2)].

41.

Chapter 4, Halachah 11. As the Ra'avad notes, the Rambam's decision here appears somewhat contradictory to his ruling there. See the notes to that halachah.

42.

And thus, the other people in the store or gate are not obligated to tithe.

43.

See Hilchot Sechirut, ch. 12, based on Deuteronomy 23:25-26, which describes a worker's right to partake of the produce with which he is working.

44.

Because the worker does not acquire the produce that he eats. Instead, he is eating because of the Torah's license. Hence, he is not required to separate tithes (Siftei Cohen 331:123).

45.

Who must tithe his produce as stated above.

46.

To remove weeds so that the tree will grow better. In such an instance, he is not entitled to partake of the olives according to Scriptural Law, because his work does not involve the produce itself. See the Rambam's Commentary to the Mishnah (Ma'aserot 3:3).

47.

As In Chapter 4, Halachah 15, et al. For in this manner, the work associated with the olives is not completed.

48.

Because collecting even a small number of them would be considered as the completion of a task. He is obligated to tithe, because since he is eating due to the stipulation, it is considered as a purchase.

49.

I.e., to remove small onions and/or weeds from an onion patch so that the large onions would have the opportunity to grow.

50.

I.e., the leaves of the onions. According to Scriptural Law, the worker is not allowed to partake of the onions, because his efforts to do not complete the preparation of this produce (Hilchot Sechirut 12:4). Nevertheless, this owner agreed to allow the worker to partake of the onion leaves.

51.

As explained in the previous halachah.

52.

Who was performing work with the olives that would entitle him to partake of them according to Scriptural Law, e.g., he was harvesting them.

53.

A Talmudic measure equivalent to half a log, 171 cc according to Shiurei Torah, 300 cc according to Chazon Ish.

54.

As stated in Halachah 9.

55.

It must be emphasized that we are speaking about an instance where the employer gives the worker special license to dip the olives in salt. Otherwise, he is forbidden to do so, as apparent from Hilchot Sechirut 12:10 (Rambam LeAm).

56.

See Halachah 18.

57.

As stated in Chapter 3, Halachah 3.

58.

Our translation is based on the Rambam's Commentary to the Mishnah (Ma'aserot 2:8).

59.

Without separating tithes.

60.

Because that is not the species of produce with which he is working.

61.

In his Commentary to the Mishnah (Ma'aserot 3:2), the Rambam states that we are not speaking about workers employed to harvest the produce of the field, for they would have a right to partake of this produce according to Scriptural Law. Instead, we are speaking of workers who are plowing or performing other similar tasks.

62.

They may partake of the produce freely, not merely one at a time.

63.

This addition is made on the basis of the gloss of the Radbaz.

64.

For a present is not considered like a sale and does not obligate the separation of tithes, as stated in Halachah 5.

65.

As stated at the beginning of Chapter 3. If the tasks were completed, it would be forbidden to partake of a significant meal from this produce.

66.

See Chapter 6, Halachah 9. The Radbaz mentions that the produce must have matured to the extent that it could be obligated to tithed. Otherwise, there would be no prohibition in paying one's debt with it.

67.

And since the owner is required to provide them with food, allowing them to partake of this produce would be equivalent to paying a debt.

68.

For the work associated with this produce is completed and it is forbidden to partake of it unless it is tithed.

69.

I.e., cook without spices.

70.

In brine, the Rambam's Commentary to the Mishnah (Ma'aserot 4:1).

71.

This obligation is, however, merely Rabbinic in origin.

72.

Our Sages [the Jerusalem Talmud (Nedarim 6:1)] raise this question and leave it unresolved. See the Radbaz who mentions instances where smoking is considered as cooking and others when it is not.

73.

In his Commentary to the Mishnah (loc. cit.), the Rambam explains that when produce was picked before it was ripened, it would be buried in this manner to hasten its ripening and softening process.

74.

Although this activity helps prepare them to be eaten, it is not considered as cooking or pickling (Radbaz; see also the Rambam's Commentary to the Mishnah, loc. cit.).

75.

Apparently, this ruling applies even if the cooked food has been removed from the fire and placed in another utensil (a kli sheni). See Radbaz and Chapter 3, Halachah 15.

76.

The Radbaz states that this applies whether the spices were untithed and the oil had been tithed previously or the oil was untithed and the spices had been tithed previously.

77.

If they were not brought home. Crushing these pungent herbs and mixing them with oil is equivalent to cooking them.

78.

Creating a liquid (wine) from the grapes is equivalent to cooking.

79.

Containing other food.

80.

Because the wine was absorbed immediately by the food in the pot and never became a distinct entity. We are speaking about food that is cold. Otherwise, exposing the wine to heat would establish the obligation as stated in the previous halachah (Kessef Mishneh).

81.

As stated in Chapter 3, Halachah 3.

82.

A white fluid that resembles milk in its appearance [the Rambam's Commentary to the Mishnah (Ma'aserot 4:1)].

83.

Where the olives are kept until they become soft and fit to be squeezed for their oil (14ibid.|ERROR:@|13 4:3).

84.

See Hilchot Terumah 5:14,15 which give examples of instances where a person made an improper separation of terumah and hence, was required to separate terumah a second time.

85.

Chapter 3, Halachah 3, states that separating terumah creates an obligation to tithe the remaining produce. In this halachah, the Rambam emphasizes that even if the separation of terumah was defective and terumah had to be separated a second time, the obligation to tithe has still taken effect (Radbaz).

86.

As stated in Chapter 3, Halachah 3, the onset of the Sabbath establishes an obligation to tithe. Nevertheless, this applies only when the tasks associated with the preparation of the produce was completed beforehand (Beitzah 35a).

87.

The rationale is that since the work associated with them has been completed, it is possible to partake of them on the Sabbath. Now eating any food on the Sabbath is significant for it is a dimension of the mitzvah of oneg Shabbat, taking pleasure in the Sabbath. Hence, the obligation to tithe is established (Siftei Cohen 331:127).

88.

Even a snack.

89.

For the onset of the Sabbath establishes an obligation to tithe as above.

The Rambam is quoting the Mishnah (Ma'aserot 4:2). The Jerusalem Talmud raises the question: Why is it necessary to state that the children were intending to partake of them on the Sabbath? Even if that was not their intent, the commencement of the Sabbath would have established the obligation to tithe. The Jerusalem Talmud answers that the new insight is that since it was children who hid the produce, it would be permitted to be eaten as a snack on Friday. If, however, adults set aside the produce for use on the Sabbath, it is not permitted to snack from it on Friday. See also Siftei Cohen 331:129.

90.

Its figs were of a high quality and hence, set aside to be used on the Sabbath when one must use produce of the highest quality.

91.

Even during the week (Radbaz).

92.

I.e., snacking. Eating a significant amount establishes an obligation to tithe.

93.

The tithing should be done before the Sabbath, because it is forbidden to tithe on the Sabbath itself (Hilchot Shabbat 23:9).

94.

Since he began partaking of them before the commencement of the Sabbath and places them aside so that he would not partake of them on the Sabbath, their status does not change. He need not tithe them if he partakes of them after the Sabbath (Siftei Cohen 331:130).

Maaser - Chapter 6

1

One may rub the surface of figs and grapes [of tevel];1 this does not cause a [significant] loss.2 Whatever is forbidden for non-priests to partake of with regard to terumah, e.g., the seeds or the like,3 may not be eaten from tevel, from the tithes from which terumat ma'aser has not been separated, or from the second tithe and consecrated property that were not redeemed. Whatever non-priests may partake of with regard to terumah is also permitted to be eaten from tevel, from the tithes from which terumat ma'aser has not been separated, and from the second tithe and consecrated property that were not redeemed.

א

מחליקין בתאנים וענבים של טבל ואין בזה משום הפסד וכל שאסור לזרים לאוכלו בתרומה כגון הגרעינין וכיוצא בהן כך אסור לאוכלו מן הטבל ומן המעשר שלא ניטלה תרומתו וממעשר שני והקדש שלא נפדו וכל שמותר לזרים לאוכלו בתרומה מדברים אלו כך מותר בטבל ובמעשר שלא ניטלה תרומתו ומעשר שני והקדש שלא נפדו:

2

We4 may not kindle impure tevel,5 even during the week. Needless to say, this applies on Sabbath.6 [This is implied by Numbers 18:5]: "the watch of My terumah."7 Just as pure terumah may not be used until after it has been separated, so too, we may not benefit from impure terumah until after it was separated.

ב

אין מדליקין בטבל טמא אפילו בחול ואין צריך לומר בשבת שנאמר את משמרת תרומותי מה תרומה טהורה אין לך בה אלא משעת הרמתה אף תרומה טמאה אין לך ליהנות בה אלא משעת הרמתה ואילך:

3

We may not cover tevel with earth,8 nor may we sow it. It is forbidden to sow even produce for which the work associated with their preparation has not been completed9 until it has been tithed.10

When does the above apply? With regard to grains, legumes, and the like.11 If, however, one uproots saplings that contain fruit and replants them in another place in his field,12 it is permitted. It is not considered as sowing tevel, for he did not gather the fruit.13

Similarly, when one uproots turnips and radishes and replants them elsewhere, if he intends to add to their bulk, it is permitted.14 If one plants them so that they will produce stalks so that he can take their seed, it is forbidden [to plant them without tithing],15 because it is like sowing wheat or barley that is tevel.

ג

אין מחפין בטבל ואין זורעין את הטבל ואפילו פירות שלא נגמרה מלאכתן אסור לזרוע מהן עד שיעשר במה דברים אמורים בתבואה וקטניות וכיוצא בהן אבל העוקר שתילים שיש בהן פירות ממקום למקום בתוך שדהו הרי זה מותר ואינו כזורע טבל שהרי לא אסף הפירות וכן העוקר לפת וצנונות ושתלם במקום אחר אם נתכוון להוסיף בגופן מותר ואם שתלן כדי שיקשו ויקח הזרע שלהן אסור מפני שהוא כזורע חטים או שעורים של טבל:

4

[The following laws apply when a person] sows a litra of produce16 that was separated as tithes, but terumat ma'aser had not been separated from it. If it increased and it is now 10 litra, [the entire new crop] is required to be tithed.17 A tenth18 should be separated for the [original] litra from other produce19 according to the appropriate reckoning.20

If one separated [terumah and tithes] from a litra of onions and sowed them, one should not separate the tithes according to the reckoning of the increase, but according to the entire sum of the crop.21

ד

ליטרא מעשר טבול שזרעה והשביחה והרי היא עשר ליטרין חייבת במעשר ואותה ליטרא מעשר עליה ממקום אחר לפי חשבון ליטרא בצלים שתקנם וזרעם אינו מעשר לפי חשבון התוספת אלא מעשר לפי כולו:

5

There is an unresolved doubt regarding the ruling when stalks of produce whose seed does not decompose that reached a third of their growth,22 were [gathered,] their stack was straightened, and he tithed them,23 he subsequently sowed them, and they increased in size. [One might say that] there is a Rabbinic obligation to tithe them, because they increased in size.24 [But one might say] that there is no obligation25 since the seed which continues to exist and did not decompose was tithed. [The laws governing these species] do not resemble [those that apply to] onions, because it is not common practice to sow onions.26

ה

זרעונים שהביאו שליש ומרחן ועשרן ואח"כ זרען והוסיפו ואין זרעם כלה ה"ז ספק אם חייבין במעשר מדבריהם הואיל והוסיפו או אין חייבין שהרי הזרע שעדיין הוא קיים ולא אבד מעושר הוא ואין אלו דומים לבצלים שהבצלים אין דרכן להזרע:

6

[The following laws apply when one] sows tevel, whether a crop whose seed decomposes27 or a crop whose seed does not decompose.28 If it is possible for him to gather it [before it takes root in the ground], we penalize him29 and [require him to] gather it. [If the seed decomposes], should it grow, we do not require him to uproot [the plants].30 [The growths] are considered as ordinary produce.31

If the produce is of a type whose seed does not decompose, even the produce that grows from the growths - indeed, even until the third generation - is forbidden. The fourth generation is permitted. Why are the growths foribidden? Because of the terumat ma'aser and the terumah within them.32 These same laws apply when one sows produce separated as the tithes from which terumat ma'aser was not separated.

It is forbidden to sell tevel except when there is a necessity to do so and [then,] only to a Torah scholar.33 It is forbidden to send [presents] of tevel, even from one Torah scholar to another, perhaps one will rely on the other34 and thus cause tevel to be eaten.

ו

הזורע את הטבל בין דבר שזרעו כלה בין דבר שאין זרעו כלה אם אפשר ללקטו קונסין אותו ומלקטו ואם צמח אין מחייבין אותו לעקור והגידולין חולין ואם היה דבר שאין זרעו כלה אפילו גידולי גידולין אסורין עד שלש גרנות והרביעי מותר ומפני מה הגידולין אסורין מפני תרומת מעשר ותרומה גדולה שבה וכן הדין בזורע מעשר שלא ניטלה תרומתו אין מוכרין את הטבל אלא לצורך ולחבר ואסור לשלח את הטבל ואפילו חבר לחבר שמא יסמכו זה על זה ויאכל הטבל:

7

[The following rules apply when a person] sells produce35 to a colleague, but then remembers that it is tevel and although he afterwards runs to pursue him to make the appropriate separations,36 he cannot find him. If he knows that the produce no longer exists - it was already lost or consumed - he does not have to separate tithes for it.37 If there is a doubt whether it exists or do not exists, he should separate tithes for it from other produce.38

ז

המוכר פירות לחבירו ונזכר שהם טבל ורץ אחריו לתקנו ולא מצאו אם ידוע שאין קיימין ושכבר אבדו או נאכלו אינו צריך לעשר עליהם ואם ספק שהם קיימין או אין קיימין צריך להוציא עליהן מעשרות מפירות אחרות:

8

[The following rule applies when there is a dispute when] a person sells produce to a purchaser.] The seller says: "I sold them with the stipulation that they were tevel."39 The purchaser said: "I purchased tithed produce from you."40 We compel the seller to make the appropriate separations.41 [This is a] penalty imposed upon him for selling tevel.42

ח

המוכר פירות לחבירו מוכר אומר על מנת שהן טבל מכרתי ולוקח אומר לא לקחתי ממך אלא מעושרין כופין את המוכר לתקן קנס הוא לו מפני שמכר טבל:

9

One may not pay a debt from tevel, for this resembles a sale.43

ט

אין פורעין חוב מן הטבל מפני שהוא כמוכרו:

10

[The following laws apply when a person's] crops were seized by the king's authorities while they were tevel. If [they were taken] because he owed this amount,44 he must separate the tithes for this produce.45 If they were taken from him by force, he does not have to separate tithes for them.

י

מי שלקחו בית המלך את פירותיו והם טבלים אם מחמת שהוא חייב להן צריך להוציא עליהן מעשרות ואם לקחו באונס אינו צריך לעשר עליהם:

11

When a person purchases tevel from two sources,46 he may separate the tithes from one for the other.47 When a person receives a field from a Jew or from a gentile as part of a sharecropping agreement,48 he should make the division [of the produce] in the presence of the owner of the field and give him his share then, so that he knows that he received tevel.49

[Different rules apply, however, when a person] rents a field from a Jew on the condition that he pay the owner a specific amount of produce. If he pays him with produce from the field he rented, [the renter] must separate terumah.50 Afterwards, he gives him the measure he stipulated he would give him and the owner of the field must separate the tithe himself.51 If, however, [the renter] pays the owner from the produce of another field or with another type of produce, [the renter] must first separate the tithes and then pay [the owner].52

יא

הלוקח טבל משני מקומות מעשר מזה על זה המקבל שדה מישראל או מן הנכרי חולק ונותן לבעל השדה בפניו כדי שידע שטבל נטל אבל החוכר שדה מישראל אם נתן לו מזרע אותה שדה תורם ואחר כך נותן לו מזו שקצץ ליתן לו ובעל השדה מעשר לעצמו ואם נתן לו מזרע שדה אחרת או ממין אחר מוציא המעשר ואח"כ נותן לו:

12

When a person rents a field from a gentile on the condition that he pay him a specific amount of produce, he must tithe the produce before giving it to him. This is a penalty imposed upon him so that he will not rent the field from the gentile.53 In this way, the field will lie fallow [before the gentile]54 and, of necessity, he will sell it to a Jew.55

Similarly, when a person accepts his ancestral field from a gentile as a sharecropper,56 he was penalized and required to tithe the produce before giving the gentile his share of produce after it was tithed. [This measure was instituted] so that a person should not jump at the opportunity to receive it because it was his ancestral field. In this manner, it will remain fallow before the gentile so that he will sell it to a Jew.

יב

החוכר שדה מן העכו"ם מעשר ואחר כך נותן לו קנס קנסוהו בזה כדי שלא יחכור מן העכו"ם ונמצאת השדה בורה לפניו עד שיצטרך וימכרנה לישראל וכן המקבל שדה אבותיו מן העכו"ם קנסוהו שיעשר ואח"כ יתן חלקו לעכו"ם מעושר כדי שלא יקפוץ ויקבלה ממנו מפני שהיא שדה אבותיו עד שתשאר לפניו בורה כדי שימכרנה לישראל:

13

What is meant by a chokar and what is meant by a mekabel?57 A chokar hires the field for a specific amount of produce - these-and-these many se'ah - whether the field produced a lot or a little. A mekabel hires the field for a percentage of its yield, half, a third, or whichever amount they agree on. A sochar is one who rents the land for [a sum of] money.58

יג

אי זהו חוכר ואי זהו מקבל חוכר שחוכר הקרקע בדבר קצוב מן הזרע בכך וכך סאה בין עשתה הרבה בין עשתה מעט מקבל הוא שיקבל אותה בחלק ממה שתעשה חציו או שלישו או מה שיתנו ביניהן שוכר הוא ששוכר הקרקע במעות:

14

When two people receive a field as sharecroppers together, they inherit the field, or join as partners with regard to it, one may tell the other: "Take the wheat in this-and-this place and I will take the wheat from that-and-that place. You [take] the wine in this-and-this place and I will take the wine from that-and-that place."59 He should not say: "You take the wheat and I will take the barley. You take the wine and I will take the oil," for that constitutes selling tevel.

יד

שנים שקבלו שדה באריסות או ירשו או נשתתפו יכול האחד לומר לחבירו טול אתה חטים שבמקום פלוני ואני חטים שבמקום פלוני אתה יין שבמקום פלוני ואני יין שבמקום פלוני אבל לא יאמר טלו אתה חטים ואני שעורים אתה יין ואני שמן מפני שמוכרין את הטבל:

15

When a priest or a Levite purchased produce from an Israelite after the tasks [associated with their preparation] were completed,60 we expropriate the terumah and tithes from their possession and give them to other priests and Levites. This is a penalty imposed on them so that they will not hurry to the grainheaps and winepresses and purchase tevel to grab the presents of their priestly brethren.61 If, however, they purchase [the produce] before [these] tasks are completed, we do not expropriate [the presents] from their possession.62

טו

כהן או לוי שלקחו פירות מישראל אחר שנגמרה מלאכתן מוציאין את התרומה והמעשרות מידיהן ונותנין אותם לכהנים וללוים אחרים קנס הוא להם כדי שלא יקפצו לגרנות ולגתות ויקנו טבלים כדי להפקיע מתנות אחיהם הכהנים ואם קנו קודם שתגמר מלאכתן אין מוציאים מידם:

16

When a priest or Levite sold produce that was detached to an Israelite63 before the tasks [associated with their preparation] were completed - and certainly, if they sold the produce while it was attached - the terumah or the tithes belong to [the priest or Levite].64 If they sold it after these tasks were completed, the terumah and the tithes belong to the purchaser.65 He must separate them and may give them to the priest or Levite of his choice.

טז

כהן או לוי שמכרו פירות תלושין לישראל קודם שתגמר מלאכתן ואין צריך לומר אם מכרו במחובר הרי התרומה או המעשר שלהם ואם מכרו אחר גמר מלאכה הרי התרומה והמעשר של לוקח ומפריש ונותן לכל כהן או לוי שירצה:

17

When a priest or Levite receive a field from an Israelite under a sharecropping agreement, they should divide the terumah and the tithes, as they divide up the ordinary produce. The Israelite should take his portion and give it to the priest or Levite of his choice. When, however, an Israelite receives a field from a priest or a Levite under a sharecropping agreement, the terumah and/or the tithes belong to the owner of the field.66 The remainder of the presents67 should be divided.

יז

כהן ולוי שקבלו שדה מישראל כשם שחולקין בחולין כך חולקין בתרומה ובמעשרות והישראל נוטל חלקו ונותן לכל כהן או לוי שירצה אבל ישראל שקיבל שדה מכהן או מלוי התרומה או המעשר לבעל השדה ושאר המתנות חולקין:

18

When a person - whether an Israelite from a priest or Levite or a priest or Levite from an Israelite - receive olives68 to produce oil, they should divide the terumah and the tithes, as they divide up the ordinary produce. [The rationale is that] oil is an important [commodity].69

יח

המקבל זיתים להוציא מהן שמן בין ישראל מכהן או לוי בין כהן או לוי מישראל כשם שחולקין בחולין כך חולקין בתרומה ומעשרות מפני שהשמן חשוב הוא:

19

When a priest sells a field to an Israelite and tells him: "[I am selling it] on the condition that the tithes from it belong to me forever," they belong to him.70 [The rationale is that] saying "on the condition that" is tantamount to setting aside for himself [the portion of the field] where the tithes [grow].71

If the priest [who sold the land] dies, his son is like all other priests.72 If [the priest] told [the purchaser]: "[I am selling it] on the condition that the tithes from it belong to me and my son," [when] he dies, his son73 should take [the tithes]. If he sold it "...on the condition throughout the time it is in your possession," should the purchaser sell it to another person - even if he later buys it back, the priest is no longer entitled to those tithes.

יט

כהן שמכר שדה לישראל ואמר לו על מנת שהמעשר שלה שלי לעולם הרי הן שלו כיון שאמר על מנת נעשה כמי ששייר מקום המעשר ואם מת הכהן הרי בנו כשאר הכהנים ואם אמר לו על מנת שהמעשרות לי ולבני מת הוא יטלם בנו על מנת שהמעשרות שלי כל זמן שהיא לפניך מכרה לאחר אף על פי שחזר ולקחה אין לכהן אותם המעשרות:

20

When an Israelite received a field under a sharecropping agreement from a priest or Levite and stipulated that [the agreement is being made] "on the condition that the tithes are mine74 for four or five years," this is permitted.75 "...On the condition that they are mine forever," this is forbidden. [The rationale is that] one priest cannot make another priest.76

Similarly, if a Levite owed money to an Israelite, the Israelite may not collect produce from others and set aside the tithes for himself until he repays his debt.77 For a Levite cannot make his creditor a Levite so that he can collect the tithes from others.78

כ

ישראל שקיבל שדה מכהן ולוי ואמר לו ע"מ שהמעשרות שלי ארבע או חמש שנים מותר ע"מ שהן שלי לעולם אסור שאין כהן עושה כהן וכן בן לוי שהיה עליו חוב לישראל לא יהיה ישראל זה גובה מאחרים ומפריש עד שיפרע כנגד חובו שאין לוי זה עושה בעל חוב שלו כלוי אחר שיגבה מעשר מאחרים:

21

When an Israelite inherits tevel that was found in a grainheap whose edges had been straightened79 from his maternal grandfather who was a priest who in turn inherited it from his maternal grandfather who was an Israelite, [the Israelite who was the heir] may separate the tithes and keep them as his own. [The rationale is that] presents which are fit to be separated are considered as if they have already been separated although in actual fact they were not separated.80

כא

ישראל שירש טבל ממורח מאבי אמו כהן ואותו אבי אמו ירשו מאבי אמו ישראל ה"ז מפריש ממנו מעשרותיו והן שלו שהמתנות הראויות ליתרם כמו שהורמו הן אע"פ שלא הורמו:

22

When a person gives his field81 to a gentile or to someone upon whom we cannot rely with regard to the tithes82 in a sharecropping arrangement, he must separate the tithes in lieu of them even though [the produce] had not reached the "phase of tithing" [when the arrangement was made].83

If he entered into such an arrangement with a common person [different rules apply]. If [the arrangement began] before the crops reached the "phase of tithing," he does not have to tithe in lieu of him.84 [If it began] after they reached the "phase of tithing," he must tithe in lieu of him.85

What must he do? He should stand over the grainheap86 and take [the produce that must be separated]. He need not be concerned with what they ate,87 for we are not responsible for their actions.

כב

הנותן שדהו בקבלה לעכו"ם או למי שאינו נאמן על המעשרות אף על פי שלא באו לעונת מעשרות צריך לעשר על ידם נתנה לעם הארץ עד שלא באו לעונת המעשרות אינו צריך לעשר על ידם ומשבאו לעונת המעשרות צריך לעשר על ידם כיצד הוא עושה עומד על הגורן ונוטל ואינו חושש למה שאכלו שאין אנו אחראין להם:

Footnotes
1.

Produce from which terumah and tithes were not separated. It was common to rub the surface of grapes and figs to smooth them (Kessef Mishneh). The Radbaz states that oil was applied to their surface.

2.

Although this activity causes the produce to spoil slightly faster, this is not significant over the long run. See the Rambam's Commentary to the Mishnah (Ma'aserot 1:8).

3.

The Rambam is speaking about aspects of produce, e.g., leaves, peels, seeds, some of which are considered waste products (and hence, permitted to be eaten by non-priests) and some of which are considered as food (and forbidden to them). See Hilchot Terumah 11:10-13 where the Rambam gives many different examples of these categories. Any substance that is considered as food with regard to terumah is also considered as food with regard to the other prohibitions mentioned by the Rambam. Conversely, any substance that is not considered as food with regard to terumah is also not considered as food in the other contexts.

4.

Even priests who are permitted to use impure terumah (Radbaz).

5.

Impure terumah, e.g., oil, may be used as fuel for kindling. The priest might think: "Since I want to use all of this oil as fuel, why should I separate the terumah? Let me kindle it all as tevel." This is not permitted as the Rambam proceeds to explain.

Our translation follows the interpretation of the Radbaz. Others interpret the term mechapin as "cover."

6.

I.e., kindling the Sabbath lights with oil that is tevel. This is certainly forbidden, because terumah and the tithes may not be separated on the Sabbath.

7.

In the verse, the noun terumah uses a plural form alluding to two types of terumah: pure terumah and impure terumah. See also Hilchot Terumah 2:14.

8.

To cover seeds that were strewn over the field with earth (Radbaz). It was forbidden to do this until after terumah and the tithes were separated because this resembles sowing tevel.

9.

The obligation to separate terumah and the tithes does not take effect until the work associated with the preparation of the produce has been completed (see Chapter 3, Halachot 8-13). Since the produce has not reached this stage, one might think that there is no prohibition against sowing it.

10.

According to Scriptural Law, there is no prohibition against sowing tevel. The obligation to tithe applies only when one eats. Nevertheless, our Sages (Pe'ah 1:16) imposed this stringency.

11.

For gathering them together to sow them completes the work associated with their preparation [the Rambam's Commentary to the Mishnah (Ma'aserot 1:8)].

12.

The Radbaz states that if he gives the trees to a colleague for the colleague to plant in his field, the fruit must be tithed.

13.

Thus the fruit was never considered as an independent entity from the tree so that the obligation to tithe it could be considered.

14.

For they were not gathered with the intent of reaping produce and thus the obligation to tithe ddid not fall upon them.

15.

For the obligation to tithe was incurred when the produce was harvested originally.

16.

The Ra'avad states that this applies only to crops like onions or the like where a bulb is planted and it increases as it grows. If, however, seeds which do not grow until they decompose are planted, this law does not apply. The Radbaz states that the Rambam would not necessarily accept this limitation.

17.

I.e., not only the new crop but also the old crop which was tithed and then sown, as explained in the subsequent notes.

18.

The percentage to be separated as terumat ma'aser.

19.

Which was reaped in the same year as that produce was reaped, for it is forbidden to separate the terumah [or terumat ma'aser] for produce from one year from produce from a different year (Hilchot Terumot 5:11).

20.

For although it is now considered as part of the new crop, since it still physically exists, there is an obligation to separate terumat ma'aser for it.

21.

Since one sowed the onions themselves and tithes had already been separated from them, there is reason to think that there would be no need to tithe them again. Indeed, it would be undesirable to do so, for it is improper to tithe produce that has already been tithed. Nevertheless, in this instance, there is an obligation to tithe. The rationale is that the new growth of the onions outweighs their initial mass and that initial mass is considered as betal, insignificant and subsumed in the greater whole. This concept is illustrated in other contexts; see Hilchot Terumot 11:22; Hilchot Shemitah 4:21, et al.

22.

At which point the obligation to tithe applies.

23.

I.e., this completes the tasks associated with the preparation of the produce and causes the obligation to tithe to be incurred.

24.

And the produce which existed previously is considered as betal to the new produce, as above.

25.

To tithe the original produce. Even this opinion agrees that the new produce which grows must be tithed.

26.

Hence, the laws governing onions cannot provide guidance in this instance (Kessef Mishneh).

27.

E.g., wheat or barley.

28.

Like onions or garlic.

29.

For violating our Sages' decree not to sow tevel.

30.

For the prohibited entity no longer exists.

31.

I.e., it is permitted to partake of them and the required separations must be made.

32.

Compare to Hilchot Terumah 11:21 and notes.

33.

We are translating the term chaver according to the Rambam's wording in his Commentary to the Mishnah (Demai 5:8). More specifically, it refers to a person who adheres to the laws of tithing. Torah scholars are mentioned, because we assume that they adhere to those laws (Chapter 9, Halachah 1, Chapter 10, Halachot 1-2).

34.

I.e., since both are known to tithe their produce, it is possible that both will think that the other one tithed, when in fact neither of them did so.

35.

Which both the seller and the purchaser thought had been tithed.

36.

I.e., this is the first step such a person should take.

37.

Once the produce has ceased to exist, there is no way a person can correct his past lapses.

38.

The Ra'avad states that the produce separated must itself be tithed, for it is possible that in fact the original produce had been lost. The Radbaz states that the Rambam would also accept this point.

39.

He says this after the sale, so that the purchaser knows that the produce must be tithed. He must bring witnesses who testify that he is telling the truth, i.e., that the produce is tevel. Otherwise, the seller's word would not be accepted. See also Chapter 12, Halachah 18, and notes.

40.

And thus the seller is required to reimburse him for the tithed produce.

41.

I.e., separating the tithes for the produce that was sold from other produce.

42.

I.e., ordinarily, the ruling would favor the seller, based on the principle: "When a person seeks to expropriate property from a coleague, the burden of proof is upon him." In this instance, however, the seller is penalized, because he violated a Rabbinic prohibition by selling tevel (Radbaz).

43.

For one is receiving a monetary advantage for the tevel.

44.

I.e., the king had levied a tax on all his countrymen equally. Such a tax must be paid, because "the law of the land is your law" (Hilchot Gezeilah 5:12).

45.

Otherwise, he would be paying a debt with tevel.

46.

I.e., both sellers inform the purchaser that they are selling him tevel (Radbaz).

47.

We do not suspect that the two batches of produce are from different years and thus the tithes for one should not be separated from the other (ibid.).

48.

See Halachah 13 for a definition of the Hebrew terms used in this halachah.

49.

The sharecropper does not have to tithe the crop before he gives the owner his share. This is not considered as selling tevel, for the owner's share of the produce never belonged to the sharecropper. Nevertheless, if the division is not made in the presence of the owner, the sharecropper should separate the tithes, lest the owner think the produce he receives has been tithed and transgress by partaking of it without tithing (ibid.). Even if the owner is a gentile, this applies for another Jew may see the Jewish sharecropper bringing produce to the gentile and purchase it from him under the impression that it was tithed (ibid.).

50.

For it is forbidden to take produce from the grainheap in which it is gathered without separating terumah (ibid.).

51.

The renter does not have to separate the tithes, because - as above - this portion of the crop never belonged to him. From the outset, it was designated for the owner.

52.

For in that instance, he is paying the owner with the untithed produce and that is forbidden.

53.

The Radbaz notes that - as indicated by the previous halachah - a penalty was not imposed on a person who enters into a sharecropping agreement with a gentile unless it was his ancestral field. The Radbaz explains the difference between the two situations: When a person rents a field for a specific amount of produce, he usually does so as a last resort and receives only a minimal amount. Therefore, if there are restrictions made against him doing so, he may sell the land. When, by contrast, a person seeks a sharecropper, he is reserving the option to sow it himself. Hence, he is less likely to sell it.

54.

For no one will seek to hire it from him.

55.

This and the measure mentioned in the following clause were part of the safeguards the Sages employed to uphold the Jews' possession of our Holy Land. For in the Roman era, gentiles would frequently seize Jewish property without cause. Rather than have it remain in the gentile's possession, our Sages desired that he be compelled to sell it back to a Jew.

In his Commentary to the Mishnah (Demai 6:2), the Rambam states that this ruling applies only in Eretz Yisrael, for it is only there that we are careful about land not being sold to a gentile. The Shulchan Aruch (Yoreh De'ah 331:121), however, quotes this law without making that restriction. It is possible to explain that even in the Diaspora, there is a concept of maintaining the stability of the Jewish community by not giving up Jewish land to gentiles.

56.

I.e., the gentile seized a field which a Jew had inherited from his ancestors. Because of his connection to the field, the Jew desired to till it and promised to give the gentile a share under a sharecropping agreement.

57.

These terms refer to sharecroppers operating under different types of agreements.

58.

See Hilchot Sechirut 8:1-2 which also discusses these distinctions.

59.

I.e., making a division for the sake of convenience [see the standard printed text of the Rambam's Commentary to the Mishnah (Demai 6:8); Rav Kappach's version differs)].

60.

But before terumah and the tithes were separated. Since the priests or Levites are entitled to the tithes and/or the terumah, they wished to purchase the produce and separate them for themselves. See Chapter 1, Halachah 3.

61.

The Ra'avad accepts the Rambam's ruling, but differs with regard to its motivating rationale. He explains that since the Israelite completed the tasks associated with the preparation of the grain, he has the right to give away the terumah and the tithes and the priest or Levite is not entitled to take that from him. The Radbaz and the Kessef Mishneh note that the rationale given by the Rambam is mentioned in the Jerusalem Talmud (Pe'ah 1:6) and thus question the Ra'avad's position.

62.

Since there is a certain amount of difficulty involved in the completion of these tasks, we do not penalize them.

63.

But not to a fellow priest or Levite.

64.

The rationale is that we operate under the presumption that when the priest or Levite sold the produce, he included a stipulation that the terumah and/or the tithes were his. Even though this stipulation was not explicitly made, we assume that it was understood (Rav Yosef Korcus).

Although they sold tevel - and thus it would be appropriate to penalize them - since they made it known that the produce was tevel, no penalty is imposed.

65.

Since the tasks associated with the produce were completed, the obligation to tithe is immediate. Hence, if the priest or Levite desired to retain possession of the terumah and tithes, they would have to make an explicit stipulation.

66.

In this instance as well, since the field belongs to the priest or Levite, it is as if he made a stipulation that the terumah and/or tithes should be given to him.

67.

The second tithe or the tithe given to the poor.

68.

I.e., olives that have already been harvested from the tree (Radbaz).

69.

Hence if the priest or Levite desired that the terumah and/or tithes be left for him, he would have to make an explicit stipulation to that effect. Thus if the olives - or any other produce - have not been harvested, if the land is owned by a priest or Levite, he retains the right to the terumah and/or tithes as above.

70.

Even if the purchaser later sells that field to another person, he cannot override the stipulation that was part of the original sale.

71.

Were his stipulation not to be powerful enough to retain a portion of the land itself, it would not be effective, because it would be tantamount to purchasing an entity that has not come into existence. Such a purchase is not effective (Bava Batra 63a).

The commentaries note an apparent contradiction between the Rambam's ruling here and his ruling in Hilchot Bikkurim 9:11. Although there are explicit Talmudic sources for both rulings, their logic appears contradictory. Among the resolutions offered is that here, the Rambam is speaking about landed property, while in Hilchot Bikkurim, he is speaking about an animal and the principles of ownership are different in these two instances.

72.

I.e., he no longer has any special rights to the terumah or tithes.

73.

His grandson, however, does not have a right to them (Aruch HaShulchan).

74.

I.e., the Israelite's.

75.

The Israelite is stipulating that he retains the right to separate the terumah and the tithes for all of the produce and give them to any priest or Levite he desires. Although as stated above, when the owner of the field is a priest, he can retain the rights to the terumah and the tithes. Nevertheless, as part of his contractual arrangement with the renter, he may give him the right to distribute them (Radbaz).

76.

I.e., a priest cannot give his right to collect terumah to a person who is not a priest. Similarly, a Levite may not make another Levite. Since the renter desires to make the arrangement permanent, it is forbidden, for a person who does not have a right to take the terumah and tithes is taking them.

77.

I.e., the creditor will continue to deduct the value of the tithes from the debt until the debt is paid.

78.

Even though the creditor is taking them for the Levite, since he does not have an inherent right to them, he may not collect them.

79.

I.e., at this stage, the tasks associated with the preparation of the produce were completed and tithes are required to be separated from it.

80.

To summarize the situation: The first testator, the Israelite, had completed the tasks involved with the preparation of his produce, but died before he had the opportunity to separate the terumah and the tithes. The first heir and second testator, the priest, also died before he had the opportunity to make these separations. Nevertheless, since had he in fact separated them, he would have been allowed to keep them as his own, we consider it as if he actually did so. Therefore when the final heir, the Israelite, takes possession of the produce, he must separate the terumah and the tithes to fulfill the mitzvah. He may then, however, keep them as his own property. (He may not, however, partake of the terumah, he must sell it to a priest.)

81.

This halachah is speaking about an instance where the person worded the arrangement with the gentile in such a manner that the gentile does not receive possession of the produce until after it reaches the "phase of tithing." Otherwise, there would be no obligation to separate tithes. See Hilchot Terumah 1:13.

82.

In contrast to the following clause, this phrase does not refer to an ordinary common person, but one who has a reputation for being lax in the observance of this mitzvah (see Ra'avad). For with regard to a common person, we apply certain safeguards lest he not have tithed, but nevertheless, we are not certain that he has not tithed. On the contrary, our presumption is that he did tithe.

83.

This is a penalty, imposed so that a person will not give his field to a person who does not observe the mitzvah of tithing.

84.

Since the majority of the common people tithe (Shabbat 23a), since he has not incurred the responsibility to tithe at all, he was not penalized.

85.

Since the produce reached the "phase of tithing," and there are some common people who do not tithe, our Sages required that this measure be taken.

86.

Before a division of produce is made.

87.

I.e., if they partook of some of the produce while it was forbidden for them to do so.

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