The tithe known as maaser sheni, (the ‘second tithe’) has a unique classification. Unlike others which are gifted to certain individuals—such as a Kohen,1 Levite,2 or pauper3—this tithe, which is consumed by the owner in Jerusalem, does not seem to be owned by the owner at all.

According to Maimonides:

The second tithe is considered the property of G‑d, as [Leviticus 27:30] states: “It is G‑d's. Therefore it cannot be acquired [when given] as a present. . . it may not be used to consecrate a woman, nor may it be sold, nor may it be taken as security.”4

This law can be traced to a Tannaic dispute between R. Meir and R. Yehuda regarding the use of maaser sheni for betrothal.5 R. Meir argues that such a betrothal is invalid, as the maaser sheni belongs to G‑d rather than the original owner. According to R. Yehuda, however, the individual retains full ownership of the maaser sheni, rendering the betrothal perfectly acceptable.6

The Talmud quotes Rav Asi who lists three cases where the law of R. Meir would apply:7

1. Generally, if one is baking dough, there is an obligation to set aside challah—a small piece, which would be given to the Kohen, (nowadays this piece is burned and discarded). However, if the dough is maaser sheni, is there still an obligation to set aside challah?

2. An etrog of maaser sheni—may one fulfil his obligation on Sukkot with such an etrog?

3. Matzah of maaser sheni—can such matzah be used for one’s obligation on Seder night?

In all these cases, according to R. Asi’s reading of R. Meir’s position, one would not fulfill the obligation (or have any obligation at all in the case of challah), because these obligations must be performed with items belonging to the individual. Maaser sheni, on the other hand, ultimately belongs to G‑d.

What is the view of Maimonides?

Maimonides, however, seems to make a startling and seemingly problematic distinction. In the laws of maaser sheni (quoted above), he brings the opinion of R. Meir, that maaser sheni belongs to G‑d. But in all three cases mentioned by R. Asi—etrog, matzah, and challah—Maimonides rules contrary to R. Meir: An etrog of maaser sheni may be used,8 one may fulfill his obligation of eating matzah with maaser sheni,9 and dough of maaseh sheni is obligated in challah.10

How can it be both ways? Either you believe that maaser sheni does not belong to the original owner and cannot be used for mitzvot with a requirement of ownership, or you believe that the original owner retains ownership. Maimonides’ rulings seem inconsistent.

An Etrog of Orlah

Kesef Mishneh, in his comments on Maimonides, addresses this difficulty.11 He quotes R. Yosef Corcos, who cites a third section of Talmud, which provides a possible resolution:

In Tractate Sukkah, the Talmud records a disagreement between Rav Asi and Rabbi Chiya, regarding why an etrog of orlah12 may not be used on Sukkot:13 One issue emerges from the fact that no benefit may be derived from this etrog, which means it has no monetary value. Since one needs to own one’s etrog, the fact that it has no value is a problem. Another issue is the fact that such an etrog cannot be eaten, and as Rashi explains, if one cannot (in theory) consume the etrog, it is not considered completely his.

After a brief discussion, the Talmud establishes that all agree that in order for this etrog to be kosher for Sukkot it must be possible for you to eat it, otherwise it is not considered fully owned. But there remains a disagreement as to whether or not it needs to also have monetary value. Rav Chiya believes that as long as it may be eaten, even if there is no monetary value to the owner, it is kosher for use. Rav Asi, however, maintains that both monetary value and the ability to eat are necessary to establish the required level of ownership.

As an example of something that may be eaten but does not technically have monetary value, the Talmud cites the case of maaser sheni. According to Rabbi Meir, who—as we established above—believes that maaser sheni belongs to G‑d, it has no monetary value. It can, however, be eaten (by the owner in Jerusalem). So this would be a case where the above disagreement might play out.

According to Rav Chiya, who believes that an etrog of orlah cannot be utilized, both because it has no monetary value and because it cannot be eaten, the same would not hold true with regard to maaser sheni. It would be permissible to use a maaser sheni etrog since it may be eaten in Jerusalem. True, maaser sheni technically has no monetary value, however, the fact that it may be eaten provides enough ownership for the etrog to be used.

But according to Rav Asi, to whom the only pertinent issue is its lack of monetary value, the fact that maaser sheni can be eaten makes no difference whatsoever: It is G‑d’s and therefore cannot be used as an etrog on Sukkot.

It emerges from this section of Talmud that according to Rav Chiya the defining factor which determines whether or not an article is considered yours to the extent that it may be used as an etrog, (and for the matzah on Seder night, or to be obligated it in the mitzvah of challah,) is the permissibility of its consumption.

The Key is Being Able to Consume the Produce

With this in mind, we are able to reconcile Maimonides’ rulings. His position is in line with Rav Chiya’s: the deciding factor here is not monetary value; the true definition of ownership is whether or not it is permissible to consume the item.

This is why Maimonides rules that one may use an etrog or matzah of maaser sheni to satisfy one’s obligation, and why dough of maaser sheni is obligated in challah.

In the case of betrothal, however, Maimonides rules that maaser sheni may not be used, because for a betrothal to be valid, the article used must have monetary value.

This, however, begs further elaboration: Why does the fact that one may eat maaser sheni allow it to be considered one’s own, to the extent that it may be used for mitzvot where there is an explicit requirement for the article to belong to the individual?

Rabbi Elchonon Wasserman, in his work Kovetz Shiurim,14 explains that when R. Meir states that maaser sheni belongs to G‑d, he is not referring to the actual item, but to its worth. The value of the item is G‑d’s. The owner does not have the power to sell or gift it, since he does not have use of its worth, but he does retain ownership of the actual item.15

This explains how something that “belongs to G‑d” can still be considered ‘yours’ to a certain extent, but does not explain why it is necessary to be able to consume the produce according to R. Chiya.

It may be suggested16 that the idea articulated by R. Elchonon has limitations. True, we can divorce the value of an item from its ownership, and say that the owner may own an item but not be able to utilize it. But can we honestly say that this limited ownership is real if it cannot be acted upon in some way? If it is simply theoretical, we cannot truly say that it belongs to him. This ownership must have some practical ramification.

This is why R. Chiya maintains that one must have the ability to consume the etrog. If the owner is able to consume it, (under certain circumstances,) that is enough to establish ownership.

Practical Application

On motzei Shabbat of Parshat Mishpatim, 1978, the Lubavitcher Rebbe spoke about the idea of maaser sheni in spiritual terms. He explained that maaser sheni signifies our ability to dedicate something to G‑d, but retain physical enjoyment. Since the other tithes are given away, the original owner is not able to partake. With maaser sheni, on the other hand, the owner is commanded to take the produce to Jerusalem and “eat before G‑d, your L‑rd.”17

Likewise, says the Rebbe, there are times in our spiritual service when it is not necessary to be completely divorced from physical pleasure and reality. Instead, our goal is to take the mundane, the world’s material bounty, and make it holy.18