Maaser - Chapter 6

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.

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).

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.

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

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."

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.

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.

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.

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.

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.

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)].

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.

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

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

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

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.

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

The percentage to be separated as terumat ma'aser.

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).

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.

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.

At which point the obligation to tithe applies.

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

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

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

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

E.g., wheat or barley.

Like onions or garlic.

For violating our Sages' decree not to sow tevel.

For the prohibited entity no longer exists.

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

Compare to Hilchot Terumah 11:21 and notes.

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).

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.

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

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

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

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.

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.

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

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

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).

For one is receiving a monetary advantage for the tevel.

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).

Otherwise, he would be paying a debt with tevel.

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

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.).

See Halachah 13 for a definition of the Hebrew terms chokar and mekabel used in the Hebrew text of this halachah.

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.).

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

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.

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

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.

For no one will seek to hire it from him.

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.

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.

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

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

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)].

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.

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.

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

But not to a fellow priest or Levite.

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.

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.

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.

The second tithe or the tithe given to the poor.

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

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.

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

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.

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

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

I.e., the Israelite's.

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).

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.

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

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.

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.

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.)

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.

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.

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.

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.

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.

Before a division of produce is made.

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