MISHNAH: He who receives a field as sharecropper from a Jew, a Gentile, or a Samaritan, distributes in their presence [The sharecropper does not have to give heave before taking his own share.] . He who leases [The contract calls for a fixed payment in kind independent of the actual yield. In that case, we do not allow anybody to liquidate his debts from his harvest without separating heave. But in a bid of the rabbis to attract Jewish farmers, the lessee is not required to tithe before he pays his rent. The lessor knows that he has to tithe.] a field from a Jew separates heave and delivers to him. Rebbi Jehudah says, when is that? When he gives from that field and from that kind. But if he gives from another field or from another kind [In that case, the payment is simply a financial transaction and does not enjoy special status.] , he must tithe and give him. He who leases a field from a Gentile tithes and delivers to him. Rebbi Jehudah says, also he who is a sharecropper for a Gentile on a field that used to belong to his family tithes and delivers to him [As an incentive to make it worthwhile for him to buy back the property from the Gentile.] .
HALAKHAH: Rebbi Joḥanan said, these are the words of Rabban Simeon ben Gamliel. But the words of the Sages are: From a Jew, he splits; from a Gentile, he gives heave. We have stated [Tosephta Demay 6:1: “He who receives a field as sharecropper from a Gentile tithes and gives to him. Rabban Simeon ben Gamliel said, what if the Gentile does not want to tithe his produce? But he distributes and gives before him.” It is clear that the Yerushalmi does not speak about a lease for a fixed amount, because then the Gentile would not be interested in what the Jewish tenant does, but about a sharecropper who will diminish the landlord’s part if he gives heave or tithes prior to distribution.] : “He who leases a field from a Gentile separates heave and then gives to him. Rabban Simeon ben Gamliel said: If the Gentile does not wish to give heave, I have no right to it [Since the Gentile is the owner and one may not give heave without authorization by the owner, it is impossible in Jewish law to give heave for the unwilling Gentile. Hence, the sharecropper may not give heave before he divides up the harvest.] , but he [The farmer distributes the harvest untithed in the presence of the landlord.] distributes and puts it before him.”
Rebbi Zeïra, Rebbi Joḥanan in the name of Rebbi Yannai (Num. 18:28): “You, also you,” to include your plenipotentiary [“So you shall lift, also you, the heave of the Eternal.” The expression also you is superfluous; since “also” always means an addition, “also you” means a stand-in. Since he is titled “also you”, it follows that he takes the place of the person authorizing him. The same explanation is given in Terumot 1:1 (fol. 40b/c), Babli Qiddušin41b, Baba Meẓia‘ 22a.] . Just as you are in the covenant, so your plenipotentiary must be in the covenant. You appoint a plenipotentiary, the Gentile may not. Rebbi Yasa wanted to say that the Gentile cannot appoint as plenipotentiary another Gentile, but he can appoint a Jew. Rebbi Zeïra said, from the baraita itself: You appoint a plenipotentiary, does that not mean Jews? Similarly, the Gentile cannot appoint a plenipotentiary, not even a Jew. Rav Hoshaia objects: Does the baraita support Rebbi Joḥanan? “Rabban Simeon ben Gamliel said: If the Gentile does not wish to give heave from his produce, he cannot give heave [In the opinion of Rabban Simeon ben Gamliel the Gentile cannot appoint a Jew as plenipotentiary for Jewish ritual.] ” Rebbi Abba said, if he confirms it after him [This parallels the position of R. Isaac in Tosephta Terumot 1:15: “If a Gentile separated heave for a Jew, even with his permission, it is not heave. … Rebbi Isaac says, if a Gentile separated heave for a Jew and the owner confirms his action, it is heave.” For a Jew, once permission is given, it does not require an additional action on the part of the owner. But the Gentile’s action is not valid unless it is explicitly confirmed by the Jewish owner afterwards; the Gentile does the mechanical work and the Jew gives the separated amount the status of heave.] .
“ ‘He who leases,’ means he pays in produce, ‘he who rents,’ means he pays money, ‘he who receives,’ as sharecropper for a half, a third, or a quarter [The first two definitions are also found in Tosephta Demay 6:2.] ”.
So far a Gentile; a Samaritan? Let us hear from the following [Tosephta Demay 7:25: “He who gives a field to a Gentile sharecropper, a Samaritan, or to somebody who is not trusted with tithes, even though one is not permitted to do so, he has to tithe for him.” Here the obligation to tithe seems to be a kind of fine imposed upon someone who does not let his field to a trusted Jew. If it is imposed on someone who gives his field to a sharecropper, a fortiori on him who leases his field to a Gentile.] : “He who gives a field to a Gentile sharecropper, a Samaritan, or somebody who is not trusted with tithes, before they come to the time of tithes [When the produce is prepared to be stored, the obligation of tithes begins.] he does not have to tithe for him; after they come to the time of tithes he has to tithe for him.” That is, at a place where Jews are present. At a place where no Jews are available [There is no reason to impose a fine if no qualified Jewish farmers are available.] ? Let us hear from the following: Rebbi Simon had fields at King’s Mountain [As noted earlier, in Amoraic times no Jews were left on King’s Mountain. This entire piece also appears in Avodah Zarah 1:9, fol. 40b.] . He asked Rebbi Joḥanan, who told him: Let them lie fallow, but do not lease them to a Gentile. He asked Rebbi Joshua ben Levi who permitted it to him. Rebbi Joshua ben Levi is of the opinion that a place where no Jews are available has the status of Syria [Cf. Peah Chapter 7, Note 119. The argument implies that Neḥemiah’s covenant applies only to those regions of the Holy Land outside the immediate neighborhood of Jerusalem actually settled by Jews. The territory subject to tithes and Sabbatical therefore is variable over time [S. Klein, HUCA 5(1928) 197–260.]] . For Syria, we hear from the following: Rebbi Ḥaggai descended into Homs. The family Astor asked him: Since no Jews are available here, we lease to Gentiles; do we have to tithe for them? He sent and asked Rebbi Zeïra. Rebbi Zeïra asked Rebbi Immi, who told him that they did not have to tithe. From this you hear that the rules of leasing follow Rebbi Yose [Mishnah Avodah Zarah 1:9: “One does not lease houses in Israel to Gentiles, not to mention fields. In Syria one leases to them houses but not fields, and outside the Land one sells them houses and leases fields to them. These are the words of Rebbi Meïr. Rebbi Yose says, even in the Land of Israel one does lease houses to them and in Syria one sells to them houses and leases fields to them. Outside the Land one sells both to them.” Since one may lease fields to Gentiles, the act of leasing does not remove a field from the duty of tithes. Hence, there is no such duty on the field itself and the Gentile’s part does not have to be tithed by the Jewish landlord. The Yerushalmi’s decision is repeated in Babli Avodah Zarah 21a.] . Also from the following: Rebbi Ḥanina, the son of Rebbi Abbahu, said my father had a case; he sent and asked Rebbi Ḥiyya, Rebbi Yasa, and Rebbi Immi, and they taught him that the rules of leasing follow Rebbi Yose; hence, as far as tithing for them is concerned, they [The landlords do not have to tithe for their exempt tenants. (R. Ḥiyya here is R. Ḥiyya bar Abba.)] do not tithe for them.
“If [Tosephta Demay 1:6. The rule applies both to the sharecropper and to the lessee. Since the preceding Tosephta states the rules for sharecropper and lessee of a Jewish landlord, it follows that this Tosephta (and the one discussed in the following paragraph) deal with a Gentile landlord, which fits in the context of the present Halakhah.] he received a field to harvest for wheat [That the agricultural worker takes his wages in the form of the finished product: threshed wheat grain, wine, or oil. This is after the obligation of tithes started.] , grapes to harvest for wine, olives to harvest for oil, he tithes before he delivers.” Come and see: Before he sows, he separates heave [At most, the lessee separates heave; the sharecropper does not give anything before splitting with the owner. This shows that the Tosephta speaks both of sharecropper and lessee.] ; after it was sown, he tithes? Rebbi Ḥinena said, they made a special decree for the sharecropper, so that the Land of Israel should not lie fallow. But here it is already sown.
“If [Tosephta Demay 1:6. In this case, the payment is given before any obligation of heave and tithes was incurred.] he received a field to harvest for early ears, grapes to harvest for baskets of grapes, olives to harvest for baskets of olives, he delivers as is.” That means, if (he is paid) in the same kind; but from another field, or from that field but not from the same kind, he must tithe before he delivers. Rebbi Ḥiyya stated [This is the opinion of the Sages in Tosephta Demay 1:5.] : “From the same field, whether it be the same kind or another kind, he separates heave and delivers. From another field, whether it be the same kind or another kind, he tithes and delivers.” The Mishnah follows Rabban Simeon ben Gamliel; what Rebbi Ḥiyya stated follows the Sages, and they disagree. We also may come and state that the Mishnah deals with some place where barley usually does not yield twice as much as wheat [This refers to another disagreement between the Sages and Rabban Simeon ben Gamliel (Baba Meẓia‘ 9:8): “He who receives a field to sow it with barley should not sow it with wheat; wheat, he may sow it with barley. Rabban Simeon ben Gamliel forbids it.” In the opinion of the Yerushalmi, this depends on the relative cash value of the crops raised; if barley yields enough to offset its cheaper price relative to wheat, the lessee is permitted to change the crop. “The Mishnah” in our text means the opinion of Rabban Simeon ben Gamliel, representing actual practice. [In the opinion of the Babli (Baba Meẓia‘106b), wheat needs a more frequent crop rotation and lying fallow than barley and the landlord can always object.] Tosephta Baba Meẓia‘ 9:32, dealing with the subject matter of Mishnah 9:8, does not mention the point of view of Rabban Simeon ben Gamliel.] ; what Rebbi Ḥiyya stated refers to a place where barley usually yields twice as much as wheat.
There [In Mishnah 1, dealing with leases of agricultural land from a Jewish landlord.] you say, he separates heave and delivers to him. Here you say, he tithes and delivers to him. The colleagues in the name of Rebbi Joḥanan: The Sages fined the one who leases from a Gentile [To increase the cost of farming the Gentile’s land, so that people would refrain from leasing and, if all landless farmers are Jews, to force the Gentile to sell out to a Jew.] but they did not fine the one who leases from a Jew. Rebbi La in the name of Rebbi Joḥanan: The strict law [That a ḥaver, or any observant Jew, should not deliver any produce not completely tithed to a third person.] applies to him who leases from a Gentile but not to him who leases from a Jew.
One baraita supports one and one baraita supports the other. One baraita [Tosephta Demay 5:2: “He who leases a field from a Gentile must tithe before delivering to him. Hence, if the lessee bought from a Gentile, or the Gentile sold his crop to another Jew, it is demay.” The anonymous author of the Tosephta is R. Meïr in our baraita.] supports the colleagues. “He who leases a field from a Gentile separates heave and delivers to him. Rebbi Meïr says, he tithes and delivers to him.” Could the rabbis say, the Sages fined him who leases from a Gentile but they did not fine him who leases from a Jew? How can a fine apply to leasing from a Jew? But so it is: The rabbis say, the strict law [It is the law that only heave but no tithe has to be given as a precaution since the grain delivered by the lessee never was stored by him and, therefore, never was subject to tithes.] applies to him who leases from a Jew, but Rebbi Meïr said, the strict law [His strict law is that nobody may deliver produce into another’s hand if that produce is not fully put in order.] does not apply to him who leases from a Jew. One baraita supports Rebbi La: “He [Tosephta Demay 5:2: “He who splits the yield of a field with a Gentile tithes before delivering the Gentile’s part. Rebbi Simeon says, he separates heave and delivers the Gentile’s part. Hence, if the Gentile converted or sold to another Jew, he has to tithe before delivering.” (R. S. Liebermann explains that Tosephta as dealing with the problem of retroactive clarification, ברירה, but that explanation is impossible since heave and tithes are due only at storage time, see מנחת ביכורים ad loc. In general, the commentaries on the entire paragraph rely too much on unsupported emendations to be taken seriously.)] who leases a field from a Gentile tithes and delivers to him. Rebbi Simeon says, he separates heave and delivers to him.” Could the rabbis say, the strict law applies to him who leases from a Gentile, but the strict law does not apply to him who leases from a Jew; Rebbi Simeon said, the strict law does not apply to him who leases from a Gentile? Can anybody make such a statement [A law is a law and cannot be abrogated for a special class of people.] ? But so it is, the Sages fined him who leases from a Gentile but they did not fine him who leases from a Jew. Rebbi Simeon said, the Sages did not fine him who leases from a Gentile; hence, if the Gentile converted or sold to another Jew, it is permitted [It is retroactively permitted to the Jew to have leased the land from a Gentile when the Gentile sold his property to another Jew, since finally it again became Jewish land. Rebbi Simeon prefers to have the Gentiles convert with their land instead of driving them off by artificial obstacles.] .
Him [Here starts the discussion of the rule of R. Jehudah, who makes the situation of the sharecropper on his ancestral land worse than that of any other sharecropper.] who says that the law applies, one can understand. He who says, they fined [Why should he be fined? R. Joḥanan explains that the Gentile got the land not by paying for it but by expropriation of the Jew. In that case, the Jew should be pushed to ask for help from his fellow Jews to buy back his land. The statement of R. Joḥanan is quoted as a baraita in the Babli (Baba Meẓia 101a), with מציק instead of מסיק (identical sounds in Galilean dialect; Babylonian spelling as a rule is more historically correct.)] ? Rebbi Joḥanan said, one has stated this only in the case of oppressors. Since you say so to him, he exerts himself and buys the land back.
MISHNAH: A Cohen or a Levite who received a field (as sharecroppers) share in the tithe [Cohen and Levite who are farmers are required to separate heave and tithe like everybody else. If they are the owners they may donate the sanctified parts to themselves.] in the same proportion as they share in a profane yield. Rebbi Eliezer says, the tithe [The Cohen gets all the heave from this field and the Levite all the tithe since they expect it for their work.] is theirs because they came because of it.
HALAKHAH: The rabbis object to Rebbi Eliezer: How did they acquire [If the landlord must give his heave to the tenant, there must be a legal reason why he has lost his right to give it to any Cohen he prefers (the usual example being that of a landlord whose daughter married a Cohen and who wants to give all his heave to his grandson the Cohen.)] ? He said to them, do you not agree with me that if they agreed [In the sharecropping contract. In that case, the act which validates the contract also validates the stipulation. A Tosephta (Demay 7:1) authorizes that kind of stipulation.] among themselves, tithes go to the workers? Even if they made a condition, how did they acquire? If there is nothing said, it is as if somebody said: Harvest from this land so that its tithes should be yours [This is the end of R. Eliezer’s argument.] . They said to him, there is no stipulation here; if nothing is said there is no stipulation. It is [If there is a stipulation, it is a simple contract of payment for work done but not one for heave since the Cohen is not permitted to work for heave. Hence, there must be a contract for this to work.] as if he said, harvest this land on condition that you take one tenth for yourselves.
It was stated [Tosephta Demay 7:1: “An Israel {a Jew who is neither Cohen nor Levite} who received {as sharecropper} a field from an Israel, a Cohen from a Cohen, a Levite from a Levite, divide among themselves.”] : “A Cohen from a Cohen, a Levite from a Levite, an Israel [Tosephta Demay 7:1: “An Israel {a Jew who is neither Cohen nor Levite} who received {as sharecropper} a field from an Israel, a Cohen from a Cohen, a Levite from a Levite, divide among themselves.”] from an Israel, split the tithes.” Who needs this statement? Rebbi Eliezer; even though Rebbi Eliezer says that the tithe is theirs because they came because of it, here he agrees that they divide up the tithes.
“An [In Tosephta Demay 7:3–4, one reads: “An Israel who received a field (as sharecropper) from a Cohen, if he said to him, on condition that the tithes be mine, or yours, or mine and yours; this is forbidden. A Cohen who received a field (as sharecropper) from an Israel, if he said to him, on condition that the tithes be mine, that is permitted. That they be yours, or that they be mine and yours, if he received it under the standard sharecropping contract, it is permitted, otherwise it is forbidden.”] Israel who received a field (as sharecropper) from a Cohen, if he [The landlord who is the active party in all these cases.] said to him, on condition that the tithes be mine, or yours, or mine and yours; this is permitted [Since the tithes belong to the landlord, he can give them to whom he wants.] . A Cohen who received a field (as sharecropper) from a Cohen, if he said to him, on condition that the tithes be mine, that is permitted. That they be yours, that is forbidden [“Tithes” here naturally must include heave and heave of the tithe. What is forbidden is that the Cohen landlord gives the heaves to the Cohen sharecropper as part of the latter’s wages for his services, since heave may never be used to liquidate an obligation.] . That they be mine and yours, that is forbidden. If he received it under the standard sharecropping contract [Any distribution of heaves that follows the local standard and is not different for a Cohen than for an Israel cannot be considered a special payment made with heave and is permitted.] , it is permitted, otherwise it is forbidden.” Even without that, do not the tithes belong to them [To the landlord and the sharecropper, as explained in Mishnah 1. What does the baraita tell us as new information?] ? But so it must read: “My part is mine, your part is mine and yours, if he received it under the standard sharecropping contract, it is permitted, otherwise it is forbidden [The Cohen landlord may reserve the heaves of his own field for himself only if this is common practice; otherwise, it is exploitation of the defenseless status of the sharecropper.] .”
“If an Israel received (as sharecropper) a field from another Israel on condition that the tithes go to a certain person, that clause is forbidden [Distribution of tithes cannot become part of a financial package.] ; on condition that I shall take them and deliver them to a certain person, that clause is permitted. [In the Tosephta (Demay 7:1) there is a positive prescription that between sharecropper and landlord of similar status, tithes must be evenly split. There is no prescription on how the tithes should be given to Levite or Cohen.] ” Is the second version not identical with the first? Rebbi Aḥa said, “if you agree” makes the difference [For R. Aḥa, the landlord may not prescribe the distribution of the sharecropper’s tithes but he can ask the latter’s consent to distribute them in a certain manner.] . Rebbi Yose [R. Yose agrees with the objection that the two clauses are indistinguishable; he must find another reason why one is permitted and the other forbidden.] said, you say it is permitted if it follows the standard sharecropper’s contract. You say it is forbidden if it does not follow the standard sharecropper’s contract. It turns out that Rebbi Yose holds with Rebbi Joḥanan and Rebbi Aḥa with Rebbi Yose ben Rebbi Ḥanina. As Rebbi Yose ben Rebbi Ḥanina said, a person gives his tithes for the benefit of goodwill [While a person cannot trade his heaves or tithes, he can use them to create goodwill and so reap an indirect monetary benefit, or even a direct benefit if the party involved is not a Cohen. While an Israel may not take money from a Cohen for his heaves, he may take from an Israel for the promise to give all future heaves to the latter’s grandson who is a Cohen. But since it is not possible to trade this kind of goodwill, it is not considered to be money in the Babli (Nedarim 64b–65a); hence, if the Cohen takes heave without consent of the owner, he cannot be sued for monetary damages (Maimonides Terumot 12:15). This is the only opinion mentioned in the Babli and the only one in Sifry Naśo (6). (Starting here, the next four paragraphs are also found in Qiddušin 2:10.)] . Rebbi Joḥanan said, a person may not give his tithes for the benefit of goodwill [Rebbi Joḥanan does not allow any monetary advantage from giving heaves and tithes.] . What is the reason of Rebbi Yose ben Rebbi Ḥanina? (Num. 5:10) “Everybody shall be the owner of his holy things.” What does Rebbi Joḥanan with this? He may give them to whomever he likes [No Cohen or Levy may take heave or tithe by force; only the owner can decide to whom to give [Sifry Naśo (6)].] .
A Mishnah disagrees with Rebbi Yose ben Rebbi Ḥaninah: “A vow that no Cohanim or Levites should have any advantage from me, they should take against his will [Mishnah Nedarim 3:11. This is one of the vows the husband cannot dissolve if made by his wife since dissolution is unnecessary; any recipient of the obligatory gifts to Cohen and Levite may take them by force in this case, and the owner has no monetary gain. It seems to disagree with R. Joḥanan who says that the owner has the choice of recipient. But since the owner does not want to give what he is obligated to, he transgresses commandments of the Torah and the situation can be saved only by others disregarding his rights.] .” He explains it about a person who says, I cannot possibly give them any gifts. You should know that this is so, since we have stated: “These Cohanim and Levites, let others take [Same Mishnah; if the vow excludes a certain group of people, he always can give to others.] .” A baraita disagrees with Rebbi Joḥanan: “An Israel can say to another Israel, here you have a tetradrachma and give this first born to my daughter’s son, a Cohen [Speaking of the firstborn of a cow or ewe. In the Babli (Bekhorot27a) a similar statement is made for future heave. Both statements are taken together in Tosephta Demay 5:18: “An Israel may say to a Cohen {it seems that it should read: another Israel, but there is absolutely no manuscript evidence for that} here you have a tetradrachma and give heave to my daughter’s son, the Cohen, or give a firstborn to my daughter’s son, the Cohen.” The Babli does not want to accept the statement about the firstborn since the Cohen might think the tetradrachma is redemption money and the firstborn does not have to be treated as a sacrifice.] .” He explains, if he already wanted to give it to two Cohanim and that daughter’s son was one of them; then one said, here you have a tetradrachma and give all of it to my daughter’s son, a Cohen [Indirect usufruct is permitted by R. Joḥanan.] .
They asked before Rebbi Zeïra, in that situation [To give money to an Israel so that he should give his heave or the firstborn of his flock to a designated Cohen.] , a Cohen to an Israel, what is the rule? At Rebbi Yose’s they said that he did not answer. Rebbi Ḥizqiah in the name of Rebbi Aḥa said, so he said to them: In the opinion of Rebbi Yose ben Rebbi Ḥanina, why is a Cohen to an Israel forbidden, not because it looks badly [That people could think that he buys the gifts for himself; this would be forbidden. He should not do it lest he get a reputation as a sinner.] ? Also Rebbi Joḥanan holds that from an Israel to an Israel it is forbidden because it looks badly [In the opinion of R. Yose ben R. Ḥanina the rabbis, not the Bible, prohibited the farmer from having any material gain from his heave and tithes.] . Rebbi Yose ben Rebbi Abun said, there is desecration of sacrifices and you said because it looks badly? Because of the following, as it was stated: [Tosephta Demay 5:20, a slightly longer version.] “Cohanim and Levites who help at the threshing floor have no right either to heave or to tithe, and if the farmer gave, it is desecrated, as it is said (Lev. 22:15): ‘They should not desecrate the sanctified things of the Children of Israel,’ but they desecrate them! In addition, they said [By a decree of the Court, which has the power of removing property rights, anything that the Cohen receives is tevel and he has to give its heave and tithes to another Cohen. This is made explicit in the Tosephta.] that their heave is no heave, their tithes are no tithes, their dedications are no dedications, and about them the verse says (Micha 3:11): ‘Their heads judge for bribes and their priests come for a price [And their prophets perform witchcraft for money. The three punishments for the three sins are: Zion will be ploughed as a field, Jerusalem will be desolate, and the Temple Mount a wooded hill.] .’ The Omnipresent brings over them three catastrophies; that is what is written (Micha 3:12): ‘Therefore, because of you Zion will be ploughed over as a field, etc.’”
A Mishnah disagrees with Rebbi Joḥanan [Qiddušin 2:10.] : “If somebody marries [The first of the marriage ceremonies, קידוּשין, requires that the groom give the bride something of value and declare that with this gift she becomes his bride. Hence, the materials enumerated must have monetary value. If the groom is an Israel, how can heave have a monetary value if he does not even have the right to goodwill?] giving heave, tithes, ‘gifts’ [These “gifts” are parts of an animal slaughtered for profane food that are given to a Cohen (Deut. 18:3). They are profane food and may be sold by the Cohen to anybody.] , water for sprinkling, or ashes of the red heifer [The water and the ashes are used to cleanse people from the impurity imparted by a corpse. Water and ashes have no monetary value and it is a desecration to take money for sprinkling water with the ashes on impure persons. However, it is permitted to take money for the time spent in transporting both (and keeping all the rules for this transport.) So the groom does not transfer ownership of the ashes since there is no ownership, but he transfers his claim to be paid for his exertions which is a lien on water and ashes (Babli Qiddušin 58b).] , she is married, even if the groom is Israel.” He explains it with heave he inherited from his maternal grandfather, a Cohen [If the grandfather died before he had time to consume the heave, the grandson may sell the heave to another Cohen; in that case, everybody agrees that the heave has monetary value.] .
“ [Tosephta Demay 7:14; there the condition is that the buyer be trustworthy for tithes. A similar baraita, dealing with a Levite selling to an Israel, is in Babli Baba Batra 63a. Since a Cohen is required to separate heave and tithes but is permitted to take them for himself in order to eat the heaves in purity, his heaves are a kind of lien on the field and he may sell the field without selling the lien.] If a Cohen sold a field to an Israel and made the condition that the tithes should be his, the tithes are his.” May he sell them to a Cohen [May the owner of these heaves sell them to another Cohen?] ? Let us hear from the following. Rebbi Abbahu said in the name of Rebbi Simeon ben Laqish: He who sells the tithes of his field to another person did not do anything [Since the tithes are not his; the goodwill represented by them is not money.] , the future children of his slave girl to another person, he did not do anything [This and the following case are based on the principle that nobody can sell anything that does not yet exist.] , the fetus of his animal to another person, he did not do anything, the airspace of his dry land to another person, he did not do anything [Since the airspace is not material, it cannot be bodily acquired. However, if the seller grants the buyer the right to build in the airspace, he sells the right to set the building on walls or pillars and that is a valid transaction (Babli Baba Batra 64b, Šulḥan Arukh Ḥošen Mišpaṭ 212.)] . But he may sell him a field and reserve the tithes for himself, a slave girl and reserve her children for himself, an animal and reserve her fetus for himself. Is it not impossible for a person to sell the airspace of his dry land to another person [Why does R. Abbahu include in the list something that seems to be obvious?] ? Explain it if he tells him, tear out some grasses in that dry land [This is a positive action which everywhere confirms acquisition of real estate and liens on real estate. R. Abbahu has to inform us that here it does not work because the land is not an object of the sale. Similarly, in the case of the Cohen selling his right, the tithe is not fixed at 10% of the field but is only a lien that cannot thereby be acquired.] to acquire its airspace. And here there is real estate before him and he says, pluck something from the ground so that you acquire one tenth of it.
“ [Cf. Tosephta Demay 7:14; there the condition is that the buyer be trustworthy for tithes. There is no mention of heirs other than sons. A similar baraita, dealing with a Levite selling to an Israel, appears in Babli Baba Batra 63a. Since the Cohen may stipulate before the sale, he may stipulate anything he wishes.] If a Cohen sold a field to an Israel on condition that the tithes should be his, the tithes are his. If he dies, his sons have no right to the tithes. ‘For me and my sons, for me and my heirs,’ his sons have the tithes, his heirs have the tithes.” Rebbi Yudan bar Shalom asked before Rebbi Yose: So far only for heirs whose claim is from the Torah? Even for heirs whose claim is not from the Torah [For example, the husband inheriting from his wife whose marriage is only rabbinical, e. g. a man marrying an underage girl after her father’s death.] !
“ [Tosephta Demay 7:14, the text is R. Ḥiyya’s. A similar baraita, dealing with a Levite selling to an Israel, appears in Babli Baba Batra 63a, also following R. Ḥiyya only.] That all tithes should be mine as long as you own it, he gets its tithes as long as the buyer owns it.” When he sold it to a third party, he has no tithes. If the buyer then bought it back from the third party, Rebbi Ḥiyya states that he has no tithes, Rebbi Hoshaia states that the tithes are his. This disagreement turns out like the other disagreement, as we have stated there [Mishnah Ketubot 9:13: “A woman who presents two letters of divorce and two ketubot collects two ketubot. Two ketubot and one letter of divorce, or one ketubah and two letters of divorce, or one ketubah, one letter of divorce, and a death, she collects only one ketubah since ‘he who divorces his wife and then remarries her, remarries her on the basis of the first ketubah.’ ” The ketubah is explained in Peah, Chapter 3, Note 151. The individual stipulations are obligations the groom takes upon himself in addition to the obligatory ketubah.] “that he who divorces his wife and then remarries her, remarries her on the basis of the first ketubah.” Rebbi Ḥanin [An Amora of the third Galilean generation, student of R. Samuel bar Isaac; a frequent author of aggadic statements. The statement here, which appears in identical form in Ketubot 9:13 (fol. 33c), is his only known halakhic statement.] stated before Rebbi La: Two Amoraïm, one says for ketubah but not for individual stipulations, and the other says, both for ketubah and individual stipulations. For him who says, for ketubah but not for individual stipulations, he has the tithes [This refers to the Mishnah and the case that the husband dies and the widow presents two ketubot and one bill of divorce. If one assumes that the argument of the Mishnah applies only to the obligatory ketubah, she collects the amount of one obligatory ketubah but both individual stipulations; hence, the remarrying does not eliminate the validity of the first ketubah. In our case, the repurchasing of the field does not eliminate the first contract and the Cohen re-enters into his rights to tithes. (The Babli, Ketubot 90a, which does not consider the case of demay presented by R. Hoshaia, holds that if the date of the letter of divorce is between the dates of the two ketubot, she collects both ketubot in full.)] . For him who says, both for ketubah and for individual stipulations, he has no tithes [In that case, the first ketubah is invalidated completely, as is the Cohen’s contract of sale. (This is the only case considered by the Babli, Baba Batra 63a.)] . But did we not state [Tosephta Demay 7:9; there it is spelled out: בת כהן.] : “If somebody received (as sharecropper) from the daughter of a Cohen, she has the tithes [Since heave is eaten not only by a Cohen but also by his entire family, her claim is as good as her father’s.] . If she married an Israel [She becomes a member of her husband’s family and loses her priestly status. Hence, all rules for the Israel apply to her.] , they split the tithes. If she was widowed or divorced [It is implied that she has no surviving descendants from her Israel husband. Otherwise, her status remains that of an Israel (Lev. 22:13).] , she returns to her prior status.” There when he sold, here when he received [Since the sharecropper never had title to the land, it is only her status that decides in matters of tithes.] . But did not Rebbi Ḥiyya state: “When she sold? [This baraita is not in the Tosephta. R. Ḥiyya, who holds that the Cohen loses all his rights when the Israel sells the field to a third party, states that the daughter of a Cohen who sells her field to an Israel while retaining her rights to tithes, and who loses half of the tithes on her marriage to an Israel, can reclaim all her rights as a childless divorcee or widow. The problem is to reconcile the two statements of R. Ḥiyya; the answer is that in the second case the rights of the seller are only suspended, not eliminated.] ” Rebbi Samuel bar Eudaimon said, there it left the power of both parties; here, it left the power of the seller but not that of the buyer.
“A [Tosephta Demay7:15.] Cohen who sold a field to an Israel on condition that the tithes be his for four or five years can oppose the buyer’s planting it as a vineyard [Since the vineyard is orlah for the first three years and its fruits forbidden for all use, the Cohen would lose most of the tithes he had contracted for.] , sowing woad [Greek ἰσάτις, Latin isatis tinctoria, a plant used to make dark blue dye. Since woad is not food, it is exempt from tithes and the Cohen would lose all income from the field.] , or turning it into a field of reeds [Reeds were used to make pens and mats and were a commercial crop, exempt from tithes. As was established in the preceding paragraphs the Cohen, while forbidden to pay for tithes, may reserve some income from the field as a lien on the field; R. Aḥa bar Ulla interpreted the contract to mean that the Cohen reserved for himself one tenth of the yield, whether sacred or profane.] . Mine forever, he cannot oppose the buyer’s planting it as a vineyard, sowing woad, or turning it into a field of reeds.” There came a case before Rebbi Aḥa bar Ulla [An Amora of the third and fourth generations. He was a Babylonian, student of Rav Ḥisda, who immigrated to Galilee and was still alive in the days of R. Jonah.] and he obligated him to turn over to him one tenth of the reeds.
“If an [Tosephta Demay 7:15, the first two sentences only.] Israel sold a field to a Cohen on condition that the tithes be his [That the Israel has the right to the tithes and may give them to any Cohen or Levite he pleases.] for four or five years, it is permitted. Forever, it is forbidden, since no Cohen can make a Cohen [No Non-Cohen can have a permanent right to tithes. While the Israel obviously has the right to demand such a clause, since the Cohen as seller has the right to reserve the tithes for himself forever, here it is the buyer who is told that he may not agree to such a contract.] . If a Cohen sold a field to an Israel on condition that the tithes be the Israel’s for four or five years, it is forbidden [Since the Cohen is automatically the owner of his heave and tithes the moment he separates them from his harvest, but since the ownership is a gift from God and not the result of his farming, he may not desecrate heave and tithes by turning them over to an Israel.] .” There you say it is permitted, here you say it is forbidden! There, he gave him rights to something he had the right to dispose of, here, he gave him rights to something he had no right to dispose of.
MISHNAH: If an Israel received (as sharecropper) from a Cohen or a Levite, the tithes are for the owners [Everybody, including the Sages who oppose R. Eliezer in the previous Mishnah, agree that this is the standard stipulation and is valid.] . Rebbi Ismael says, if a villager received a field from a Jerusalemite, the Second Tithe is the Jerusalemite’s. But the Sages say, the villager can make pilgrimage [He is encouraged to make the pilgrimage if there is a Temple. If there is no Temple, the entire rule is void since the Second Tithe must be redeemed.] and eat his part in Jerusalem.
HALAKHAH: According to the opinion of Rebbi Ismael, if an impure Cohen [A Cohen who does not follow the rules of ritual purity and, therefore, cannot ever eat heave. Nobody disputes the fact that he will receive his part of the tithes by Biblical decree.] and a pure Cohen were partners, would they not split the tithes? There he may sell the tithes to another pure Cohen [Tithes and heave are private property but cannot be given over to a Non-Cohen.] , here can the villager make pilgrimage and eat his part in Jerusalem [Second Tithe cannot be sold; it must be eaten in Jerusalem. R. Ismael thinks that this is a burden on the farmer.] ?
MISHNAH: If somebody [Even an Israel who receives the field as sharecropper from a Cohen or a Levite.] receives olives to make oil, they split heave just as they split the profane. Rebbi Jehudah says, if an Israel received olives from a Cohen or a Levite for oil or for half the yield as his wages, the tithes are for the landlords.
HALAKHAH: Rebbi Jehudah treats olives like fields but the rabbis do not treat olives like fields [It is not clear whether the rabbis exclude only olive groves from the rules of fields or any orchard. From the language of the Mishnah it seems that olives grown for pickling will come under the general rules of Mishnah 3.] . Now it seems that Rebbi Judah is thinking like Rebbi Eliezer, as Rebbi Eliezer says [In Mishnah 3.] , “the tithe is theirs because they came because of it.” So here, if a Cohen or a Levite received a field (as sharecroppers), the tithes are theirs because they came because of them.
“ [Tosephta Demay 7:10. As explained later in this paragraph, the technical term “to put in care” is applied only to an animal that is the joint property of the rancher and an investor.] A cow of a Cohen that was put in an Israel’s care and gave birth to a firstborn calf, the firstborn calf is the Cohen’s, the words of Rebbi Jehudah. But the Sages say, the firstborn is their common property [The Israel who is the rancher may give his part of the firstborn calf to another Cohen.] . Rebbi Jehudah said to them, do you not agree with me that the tithes of his field are his? They said to him, because the body of the field is his property, but the body of the cow is joint property. If the body of the cow were sole property of the Cohen, the firstborn would be the Cohen’s.” We have stated accordingly, “put in care means joint responsibility, selling is the sole responsibility of him who gives.”
“If a [Tosephta Demay 7:7. In this case, the Cohen is the owner and heave and tithe are his. The tithe, after heave of the tithe is removed, is profane in the hand of the Cohen and he may give them to anybody he wishes, even an Israel.] Cohen gave money to an Israel to buy produce for half the profit [Not necessarily exactly half the profit, but, like a sharecropper, the Israel will be paid in kind rather than in money.] and he (the Cohen) said to him: If they go up or down in price, it is on my account, and the tithes are yours, this is permitted. If an [Tosephta Demay 7: 8. The Israel is the owner of everything, the Cohen is only his agent. Heave and tithes may not be part of the payment, otherwise the Cohen’s standing would be that of a Cohen helping with the harvest; see Halakhah 3 above. Hence, the Cohen has to be paid in full before heave and tithe are given to him.] Israel gave money to a Cohen to buy produce for half the profit and he (the Israel) said to him: If they go up or down in price, it is on my account, and the tithes are yours, if he had paid the wages, it is permitted, otherwise it is forbidden. An [Tosephta Demay 5:18. R. Saul Lieberman conjectures that “sold” really means “leased his olive trees for one year,” to be paid a fixed amount of olive oil as rent. One may assume that olives growing on trees are meant, to be harvested and pressed by the contractor. In that sense, “sold” is applicable.] Israel who sold olives against 60 log of ṭevel. If one [A Cohen, who can take heave and tithes for himself. He may bid for the contract and offer better terms than a competing Israel.] said to him, sell them to me and I shall give you 60 log that are in order, that is permitted. 60 log ṭevel, and both of us will share in the tithes, that is forbiden [This last sentence is not in the Tosephta. Again, the contractor is a Cohen willing to let the Israel have part of heave and tithe.] .” If he gives him everything, it is permitted, if he gives him half, it is forbidden? Rebbi Yose said, if he extends credit to him [If the contractor is a Cohen and does not have to deliver the 60 log of oil immediately after they are pressed but only later, while another bidder would have to deliver promptly, not only does he give to the Israel landlord part of his tithes as hidden interest for the extension of credit but he uses tithes (of which heave of the tithe has not been removed and which still retains its holy status) to pay a debt and this is contempt of holy gifts. [In the Tosephta dealing with the first case, the Cohen who delivers 60 log of tithed oil, it is stated explicitly that there is no transgression either of the laws of interest or of those of honoring holy things.]] . We also have stated in this respect: If he extends credit to him it is forbidden because of interest and because of degradation of holy things.
MISHNAH: The House of Shammai say, one should sell one’s olives only to a ḥaver [The ḥaver will prepare his olive oil in ritual purity. The House of Shammai forbid causing impurity to food grown in the Land of Israel, but the House of Hillel permit this after the destruction of the Temple.] . The House of Hillel say, also to one who tithes. But the modest [See end of Halakhah.] ones of the House of Hillel used to follow the words of the House of Shammai. If two people put the yield of their vineyards into one wine press and one tithes but the other does not, then he who tithes must tithe his own and what could be his at any place [The meaning is explained in the Halakhah.] .
HALAKHAH: Rebbi Joḥanan said, the reason of the House of Hillel is that people eat from their olives while they are being loaded into the oil vat [Olives when harvested are put into large vats called מעטן, to be transported to the oil press. Dry food cannot become impure. The olives can become impure only if their oil starts to flow; the lowest olives in the vat will start to exude fluid even before being emptied into the oil press. Then they and all olives wetted by them may become impure. But the top olives may be eaten dry; it is possible that the buyer will eat some of them while in a state of purity even if the buyer is impure. Hence, there is no logical necessity that the sale will result in the olives made impure.] , as a subterfuge. The House of Hillel follow their own opinion, as we have stated [Mishnah Ševiït 5:8. The first sentence is labelled as opinion of the House of Shammai in the Mishnah. The House of Shammai argue that nobody would buy cattle trained for ploughing in a Sabbatical year unless he intends to use it then.] : “One should not sell him a ploughing cow in the Sabbatical year, but the House of Hillel permit this because he may slaughter it.” Do people really slaughter their cattle [Cattle trained for ploughing and still vigorous are much too valuable to be slaughtered as food.] ? As a subterfuge. They agree that one may sell ears of grain [In the Rome ms. (and R. S. Cirillo), the reason is given: כדי חייו, necessities of life may be sold to everybody. The problems start only with large quantities, as indicated in the next paragraph.] for dough even though one knows that the buyer will not prepare the dough in purity.
[In the Venice text, Halakhah 7 starts here. It is clear that this discussion is the continuation of the previous paragraph and has no connection with Mishnah 7. The note in Leyden ms. and Venice print giving a new Halakhah here is clearly in error. For the rest of this chapter, numbers of Halakhot and Mishnaiot in these sources do not agree; the numbering here follows that of the relevant Mishnah.] It was stated [Tosephta Ma‘serot 3:13.] : “They agree that one does not sell a wheat stack, a grape vat [Grapes usually are harvested into baskets made from palm leaves. For transportation to the wine press, the baskets are then emptied into a vat, usually made of clay (or any other material that is impermeable.) If some grape berries are injured in harvesting and start oozing grape juice in the basket, that fluid will not make the grapes subject to ritual impurity since the oozing juice is lost and unwelcome to the vintner. However, in the vat the lowest grapes will be compressed by the weight of the upper layers of grapes and will start losing juice. Since that juice is poured into the winepress, it is welcome because it reduces the workload on the press. Hence, the juice will make all grapes in the vat subject to ritual impurity and selling the vat to a person unwilling to follow the rules of purity would help to make the vat impure.] , or an olive vat [The argument given for grapes essentially is valid also for olives harvested into boxes which then are emptied into a vat. The difference is that olives are not easily injured when poured into the vat, and when warmed by the weight of the olives on top will start oozing sap that contains little or no oil. Hence, the olives become susceptible to impurity only if we consider the sap to be oil, since only seven kinds of fluid enable foods to be impure (cf. Chapter 2, Notes 136–137). The operative statement is Mishnah Ṭahorot 9:1: “When do olives become susceptible to impurity? When they start oozing sap in the vat but not in boxes, following the House of Shammai. Rebbi Simeon says, the term for oozing is three days. The House of Hillel say, if three olives cling together. Rabban Gamliel says, when the work is complete {i. e., if no more olives are added to the vat}, and the sages accept his position.”] to anybody but a ḥaver or to somebody who is known to process in purity.” Is the grape vat not from the Torah [Since grape juice is one of the Seven Fluids, the impurity of grapes in the vat must be considered Biblical.] ? This does not disagree with Rebbi Joḥanan [R. Joḥanan had explained in the previous paragraph that even the nonobservant may eat olives in purity from the vat!] ; just as Rebbi Joḥanan said, the little one is a restriction [“Restriction” means a restriction imposed by the rabbis, or the Men of the Great Assembly, not a direct Biblical ordinance. It is difficult to know what the reference means. In the opinion of R. Eliahu Fulda, one refers to a statement of R. Joḥanan reported in Babli Qiddušin 80a on Mishnah Ṭahorot 3:8: “If a toddler was found with a piece of dough near a dough made in purity, that dough is pure in the opinion of R. Meïr, impure in the opinion of the Sages, since toddlers will grab everything they see.” On this R. Joḥanan notes that the impurity is rabbinic and one may not burn heave if it was made impure in this way. “Little one” then would refer to a toddler. According to R. Moses Margalit, the statement refers to Mishnah Ṭevul Yom 3:1: “All handles of food which would transmit impurity from its original source transmit impurity for Ṭevul Yom. Food that is almost separated, R. Meïr says, if he takes a large piece and a small one is lifted with it, the small piece goes with the large one. R. Jehudah says, if he takes a small piece and a large one is lifted with it, the large goes with the small one. R. Neḥemiah says, that refers to purity, the Sages say, to impurity.” In this case, “small one” refers to a piece of food and R. Joḥanan notes that the restrictive attitude of the Sages represents a rabbinic decree, not an interpretation of Biblical law. {A “handle” of a fruit is an inedible part by which the fruit may be moved, such as the stalk of a pear or an apple. The stalk is wood and not subject to impurity, but as handle it transmits impurity both from an impure person to the fruit and from an impure fruit to any person handling it. The detailed rules are spelled out in Tractate Uqeẓin. Ṭevul Yom means a person who had been impure, had immersed himself in water for cleansing, and now is in an intermediate state until sundown when he will be pure (Lev. 22:7). In the state of Ṭevul Yom, any heave or sacrifices he touches become unusable; the Mishnah discusses transmission of that disability.}] , so “vat of olives” is a restriction [Since olives and grapes cannot be compared for the fluids extracted from them.] . Rebbi Ḥizqiah said to Rebbi Jonah in the name of Rebbi Jeremiah: They disagree about connections. Because everywhere “biting” [“Biting” means that after touching, two different things cannot be cleanly separated. The standard example are two pieces of dough which after close contact cannot be cleanly separated again. Such a connection changes the two separate pieces into one for all considerations of impurity.] is a connection, squeezing is not a connection. But here even squeezing is a connection [According to the House of Hillel in Mishnah Ṭahorot 9:1, if the olives are squeezed so that three cling together as one clump, their sap prepares for impurity and the olives are enabled to receive impurity in the Biblical sense.] ; hence from the Torah they are enabled. Rebbi Jonah met Rebbi Jeremiah and asked him, did you say that? He said, that is not from me, even their enablings are restrictions. Did we not state [R. Jonah asked from R. Jeremiah, how does he square his stand with that Tosephta?] : “They agree that one does not sell a wheat stack, a grape vat, or an olive vat to anybody but a ḥaver or to somebody who is known to process in purity?” Is the grape vat not from the Torah? Then the olive vat should be from the Torah! What about this? Explain it following Rebbi Meïr, since Rebbi Meïr said, sap is counted as a fluid [R. Meïr holds with the House of Shammai that the sap, as a necessary precursor of the oil, has the Biblical status of olive oil. In that case, the mention of the vat of olives in the Tosephta would not be practice to be followed (neither would the prohibition of selling a wholesale quantity of wheat grain, where impurity can be imparted only if water is used in milling or if the flour later comes into contact with water.)] .
Rebbi Zeïra said, the reason of the House of Shammai is that a ḥaver should never sell olives to anybody but one who tithes [The House of Shammai does not state like the House of Hillel that one may also sell to one who is certain to tithe but who is not formally a trustworthy person and therefore not obliged to tithe demay before selling, since a ḥaver is always bound by the rules of the trustworthy person.] .
Who are the modest ones [Mentioned in the Mishnah. This sentence appears as Halakhah 8 in the Venice print.] ? Those of noble conduct. Rav Ḥisda said, here we have taught that those of noble conduct are called modest.
[In the Venice print Halakhah 9.] : Rebbi Eleazar said, this follows Rebbi Meïr, since Rebbi Meïr said, they permitted to sell demay only to the grain wholesaler [Cf. Halakhah 3:2. R. Eleazar considers the distribution of the finished wine to the two partners as a commercial transaction; hence, the one who tithes may not give to his partner anything that is not tithed.] . He explains the Mishnah: The one who tithes must tithe his own part as certain [That means, he must give heave and tithes from his own grapes before they are pressed. Otherwise, he would not know what is his.] , and that part of his which could be spread anywhere as demay [The part of the grape juice he gets after pressing certainly contains juice from his partner’s grapes of which it must be assumed that heave but not tithes were removed. Hence, he must tithe his grape juice as demay.] . Rebbi Jonah objected: He sells it as certain and tithes only demay [If this is considered a mutual sale, R. Meïr cannot be satisfied with treatment as demay, since it is required that everything be completely in order.] ? It is only possible in the way Rebbi Joḥanan said, the Mishnah is the word of everybody: The one who tithes must tithe his own part as certain, and his part anywhere as demay; that means one half of his part in his partner’s hand as demay [Since we assume that everybody gives heave and we may assume that not more than 50% of his grape juice comes from his partner’s grapes, half of what he gets must be tithed as demay(assuming that both of them put exactly the same amount of grapes into the press; otherwise, he tithes an amount proportional to his partner’s share in the whole.)] .
MISHNAH: If two people received a field as sharecroppers or inherited it or bought it as partners, one can say to his partner, take your wheat on this side and I shall take on that side, take your wine from this side and I shall take from the other side. But he should not say to him, take the wheat and I shall take the barley, take the wine and I shall take the oil [According to Maimonides in his Commentary, the first part does not refer to the laws of demay but to money matters. In his opinion, a splitting of the first kind, designating parts of the same crop for the benefit of either party, can be enforced in court on condition that it not hurt the other party, but a proposal of the second kind, exchanging rights to different kinds of crops, will not be supported by a court. To oppose a settlement that benefits one party without being in any way detrimental to the other is called “sin of Sodom.” According to R. Simson of Sens, all this deals with the laws of demay; in a division of the first kind, this is simply a necessary splitting of produce. The agreement must have been reached before the harvest, when no heaves and tithes were yet due. Hence, “wine” and “oil” must mean “grapes” and “olives;” nevertheless the unequal splitting is forbidden because it too closely resembles a sale that is questionable if one of the partners is a ḥaver and the other an am haäreẓ. The position of Maimonides seems to be more acceptable since the inheritance of ḥaver and am haäreẓ is treated in the following.] . If a ḥaver and an am haäreẓ inherited from their am haäreẓ father, the ḥaver may say, take your wheat on this side and I shall take on that side, take wine from this side and I shall take from the other side. But he should not say to him, take wheat and I shall take barley, take the moist produce and I shall take the dry [According to Maimonides, this concerns the demay aspects of the situation discussed above. The splitting is permitted since each partner is taking his own. This ruling follows the position taken in the Babli (Baba Batra107a) as practice that brothers who split an inheritance cannot be considered as buying from one another. It is as if each of the brothers received what was bequeathed to them even before their father’s death. However, if they switch barley for wheat or oil for wine, they certainly have to be considered as buyers from one another and a ḥaver is not permitted to sell anything not fully tithed to an am haäreẓ. The ḥaver would have a natural inclination to take dry produce not subject to ritual impurity. [In Tosephta Demay (6:8) even the splitting according to different places is forbidden if one side is pure and the other impure, since for the ḥaver these are two different kinds.]] .
HALAKHAH: It was stated [(Halakhah 10 in the Venice print.) Tosephta Terumot 2:10. The status of Syria is explained in Peah, Chapter 7, Note 119.] : “If a Jew and a Gentile bought a field in Syria, it is as if ṭevel and tithed produce were mixed together, the words of Rebbi [Since the Gentile is under no obligation for heave, the harvest itself is untitheable; heave and tithes must be given from obligated produce. The Jew’s part of the crop must be tithed from a third, purely Jewish, source.] . Rebbi Simeon ben Gamliel says, the Jew’s part is obligated, the Gentile’s part is free.” Rebbi Yasa in the name of Rebbi Ḥanina: When do they disagree? If they split the field while the grain was standing [Standing grain is not subject to heave and tithes. Hence, if they split when the grain was standing, the partnership was dissolved before the obligation of heave started.] . But if they split grain stacks, even Rabban Simeon ben Gamliel will agree with Rebbi that every single stalk belongs to the partnership [Since it was cut in common, they hold that there is no retroactive determination which part of the harvest really belonged to whom.] . Rebbi Jonah said, Rebbi Yose in the name of Rebbi Joḥanan: When do they disagree? If they split the field while the grain was standing. But if they split sheaves, even Rabban Simeon ben Gamliel will agree with Rebbi that every single stalk belongs to the partnership. According to Rebbi Jonah, what is the difference between stacks and sheaves [Grain is transported to the threshing floor in sheaves. Making sheaves therefore is the start of turning wheat into grain. Grain being subject to heave and tithes, at that time splitting can no longer determine the status of the harvest. For Rebbi, the start of the harvest determines, for Rabban Simeon only the binding of sheaves.] ? If he harvests a small amount and shares with his partner. Rebbi Hoshaia said, that is, if they bought with the idea that they would not split. But if they bought with the idea that they always would split, Rebbi will agree with Rabban Simeon ben Gamliel that his part already belonged to him from the first moment [Retroactively the part of each partner was determined even though it is not determined by any place on the common field. (Such retroactivity, in the Babli called ברירה, usually is admitted only for rabbinic obligations. The obligation of a field in Syria is rabbinic.)] . Rebbi Yose said, the words of the rabbis disagree [They disprove the statement of R. Hoshaia.] since Rebbi Abbahu in the name of Rebbi Joḥanan said that partners are the subject of the disagreement between Rebbi and Rabban Simeon ben Gamliel [This refers to Mishnah Šeqalim1:7, Bekhorot 9:3, about the tithes on newborn calves and lambs and the agio to be paid the agents of the Temple when the yearly Temple tax of one-half sheqel was due (fee for the banker, amounting to 1/24th of the coins exchanged, to exchange half-sheqels into full sheqels.) Partnerships are not subject to tithes on animals or to the agio; partners contribute full sheqels that need no exchanging. The Mishnah states at both places that the rules for agio and tithes are opposite. If heirs never divided up the inheritance, they are subject to tithes because the flock is still their father’s, but are free from agio because they pay as one entity. If they divide the inheritance and afterwards form a new partnership they are free from tithes as partners but subject to agio because each one pays for himself. Rebbi Joḥanan points out that the rule on the undivided inheritance is not accepted by everybody.] . Are brothers who split not like these partners [If they split the inheritance, they inherited with the intent of splitting. If Rebbi would accept the argument of R. Hoshaia, he could not write in the Mishnah that the undivided inheritance is subject to tithe on animals.] ?
MISHNAH: If a proselyte and a Gentile inherited from their Gentile father, the proselyte may say, take the idols and I shall take money, take the wine for libations and I shall take produce [Idols and wine that might be used for libations to the gods are forbidden for any and all usufruct; if they come into the hands of a Jew they must be destroyed. In Jewish view, the proselyte becomes a new person by converting; he has no legal family relationship with his prior kin. The part he inherits under Gentile law is not his until it is delivered into his hands. Therefore, he is permitted to try to get things that are useful to him. But the moment anything idolatrous came into his legal possession, he is bound to destroy it. The Yerushalmi treats this as reasonable legal construction. The Babli (Avodah zarah64a) treats it as a special leniency, rather than a general law.] . After they came into the proselyte’s possession, this is forbidden. He who sells produce in Syria and says: ‘They are from the Land of Israel,’ must tithe them. ‘They are tithed,’ one believes him because the mouth that forbade is the mouth that permits [A a general principle, a person who gives detrimental information about which no other source of information is available has the right to testify to circumstances that would remove the detrimental interpretation.] . ‘They are from my field [A field in Syria is subject to tithes only if it is the property of a Jew.] ,’ he must tithe them. ‘They are tithed,’ one believes him because the mouth that forbade is the mouth that permits. If it is known that he has a field in Syria, he must tithe [In that case, it is not his mouth which tells that he must tithe.] .
HALAKHAH: [In the Venice print, Halakhah 11.] a Jew and a Gentile bought a Gentile’s house and found there idols, libation wine, and coins, he should not tell him, take the idols and libation wine, and I shall take the coins.” Rebbi Joḥanan said, not only idols, libation wine, and coins, but even if there were two idols, one shaped as a tripod [Greek δέλφιξ “tripod” [e. g. “three-legged pot”, which might be dedicated to a temple.]] and one not shaped as a tripod, he should not tell him, take the one that is not shaped as a tripod and I shall take the one shaped like a tripod [Both in the Tosephta and the statement of R. Joḥanan, the exchange would bring an illicit monetary gain through articles from which any usufruct is forbidden.] . Rebbi Zeïra said, that is correct, since even in the case of a ḥaver and an am haäreẓ who inherited from their am haäreẓ father and found there produce which might become impure and produce which might not, may he say to him, you take the produce which might become impure and I shall take that which might not [The produce that might become impure since it was in the hands of an am haäreẓ, must be assumed to be impure and unfit for consumption by a ḥaver. According to Rashi (Babli Ḥagigah 25b), the ḥaver would be guilty of transgressing the prohibition to put an obstacle before a blind person if he steered his brother the am haäreẓ to produce which, by the ḥaver’ s rules, should not be eaten by a Jew.] ? But our Mishnah disagrees: “Take the idols and I shall take money, take the wine for libations and I shall take produce.” But the end shows that there is no disagreement: “After they came into the possession of the proselyte, this is forbidden;” here, from the moment he acquired it it is as if it entered into his possession [In practical Jewish law, paying for real estate does not convey the title but only permits acquisition of the title. For actual possession, entering the property or some substitute symbolic action is required. However, since this real estate is acquired under Gentile law, concluding the contract has the force of conveying the title; hence, from the moment the title is transferred in Gentile law, the Jew can no longer try to give the unwanted articles to his Gentile partner. The implication is that a stipulation, contained in a transaction giving the idols to the Gentile and executed before the contract for sale of the real estate was drawn up, would be valid by the Yerushalmi’s standards. This inference seems to be denied in the Babli, Avodah zarah 64a.] .
“Aquila the Proselyte [Tosephta Demay 6:13. Aquila was a student of Rebbis Eliezer and Joshua and the author of a very literal translation of the Bible. He did not avail himself of the permission given in the Mishnah but took his share of the idols (or their price) and threw them into the Dead Sea, which was the ultimate way of making sure that nobody would derive any benefit from them.] split with his brothers; he restricted himself and brought his gain to the Dead Sea.” Three Amoraïm; one said that he brought the price of the idols to the Dead Sea, another said that he brought the price of his part in the idols to the Dead Sea, and another said that he brought the idols themselves to the Dead Sea, in order to remove them from his father’s house.
MISHNAH: An am haäreẓ who said to a ḥaver, buy for me a bunch of vegetables, buy for me a loaf [Greek κόλλιξ, “roll, loaf of coarse bread.”] , if he buys anonymously, he is free [Since the produce or the roll never was the property of the ḥaver, he is not under the obligation to tithe before he delivers the goods. (Explanation of R. S. Lieberman.)] . If he says, this one is for me [Therefore, if they became mixed up they become the ḥaver’s property before delivery and must be tithed.] and that one is for my friend, if they became mixed up he has to tithe, even if there are a hundred.
HALAKHAH: [Halakhah 12 in Venice print.] : There [Mishnah Peah 8:2. There, everybody knows that the person is poor; hence, it is not the mouth which forbade the produce, asserting that it was not tithed, that could permit it without tithing as gifts to the poor. Nevertheless, the Mishnah asserts that the poor can be trusted.] , we have stated: “They can be trusted about gleanings, forgotten sheaves, and peah at harvest time.” And here you say so [In Syria, nobody is trusted if his negative information can be verified by other sources. [All commentators here follow the different interpretation of R. Eliahu Fulda which, however, is based on a forced emendation of the text.]] ? There, his assertion is for exemption, but here his assertion is for obligation. And we have stated so [This baraita is not found in parallel sources, but a similar statement appears in the quote from the Tosephta in the next paragraph.] : “If his assertion is for exemption, he may be trusted in restrictions.” But here, he can be trusted even if his explanation is to make it easier [Hence, he can only be trusted if his initial information is not available from other sources.] .
It was stated [Tosephta Demai 5:2: “A Gentile who was calling out, ‘come and buy fruits, they are from Azeqa, from an orlah tree, from a vineyard in its fourth year,’ cannot be believed because he intends to advertise. But if he says, ‘I bought them from a certain Gentile,’ he is to be trusted for restrictions, the words of Rebbi. Rabban Simeon ben Gamliel says, he cannot be trusted since the words of a Gentile are irrelevant.”] : “A Gentile who was calling out, ‘come and buy fruits from me, they are from an orlah tree [A tree in the first three years after planting, when its fruits are forbidden for all use (Lev. 19:23).] , they are from a vineyard in its fourth year [See Peah 7:6.] ,’ cannot be believed. If he says, ‘I brought them from a certain Gentile,’ he may be trusted for restrictions [He can be believed in that the produce is untithed; he cannot be believed that the produce is not subject to heave and tithes.] , the words of Rebbi. The Sages say, the words of a Gentile are irrelevant [As far as Jewish religious obligations are concerned.] .” Rebbi Judan asked, what if he calls out when he is uninformed [If he never heard of Jewish restrictions, or calls out in a place without any Jewish inhabitants. The questions are not answered, so they must be answered in a restrictive sense.] ? Rebbi Judan asked, what if one holds that a Samaritan is like a Gentile, since they disagreed: “A Samaritan is like a Gentile, the words of Rebbi. Rabban Simeon ben Gamliel says, a Samaritan is like a Jew in all respects [Cf. Demay 3:4, Berakhot 7:1.] ”?
Rebbi Abun bar Ḥiyya said, that is only if most of what he takes in comes from his own [This refers to the last statement in the Mishnah, that he will not be trusted for tithes if it is known that he has a field in Syria. If most of his fields are outside both Syria and the Holy Land, he still will be believed.] .
If a Jew had a sharecropper [An am haäreẓ who, in general, cannot be trusted in matters of tithes. But since in Syria most produce on the market comes from Gentile farmers who are exempt from tithes, it is to be assumed that the fruits come from a Gentile source and are permitted without tithing.] in Syria who sent him fruits and said that they were tithed; I say that he bought them on the market, if that kind is found on the market. Not only if he does not grow that kind on his field, but even if he does grow that kind on his field; since that kind is found on the market it is permitted.
Our Mishnah follows Rebbi Yose, as we have stated: “He who buys anonymously has to tithe [This statement itself is not found in other sources, but there are two versions of the underlying baraita that explain the situation. Tosephta Demay 8:1: “If an am haäreẓ said to a ḥaver, buy for me a bunch of vegetables, buy for me a loaf, Rebbi Yose says the ḥaver does not have to tithe, Rebbi Jehudah says he does.” Babli Erubin 37b: “If an am haäreẓ said to a ḥaver, buy for me a bunch of vegetables, buy for me a loaf, Rebbi Yose says the ḥaver does not have to tithe, but the Sages say he does.”] .” What are we talking about? If he said to him, go and buy for me, he is his agent [According to all opinions, he should not have to tithe since in all respects he represents the am haäreẓ who had commissioned him.] ; go and buy for yourself, they are his property [According to all opinions he has to tithe before he delivers to the am haäreẓ. There seems to be no place for the disagreement between R. Yose and R. Jehudah.] . But in our case nothing was spelled out. Rebbi Jehudah says that the seller wants the person who buys to get the property rights [Since in handing over the merchandise, the seller also agrees to transmit the rights to the merchandise, it matters to whom the seller wants to transmit those rights.] , Rebbi Yose says that the seller wants the owner of the money to get the property rights. Therefore, if he added a piece [If the seller delivered a little more than was ordered for the price of the goods ordered, it depends on who is considered the recipient of the seller’s gift. This depends on our interpretation of the disagreement between Rebbis Jehudah and Yose. A slightly different version is quoted in Babli Ketubot 98b. There, Rashi refers to Tosephta Demay; it should read: Yerushalmi Demay.] , Rebbi Jehudah says, it belongs to the buyer, Rebbi Yose says, it belongs to both of them. The argument of Rebbi Yose seems to be inverted. There he says that the seller wants the owner of the money to get the property rights, and here you say so [Why should the agent get anything if the property is given to the owner of the money? The Babli, Ketubot 98b, gives a different answer: If the unit price of the merchandise is fixed, then any addition is a gift and is jointly owned. If the unit price is not fixed, then the additional amount is part of the sale and totally belongs to the owner of the money.] ? Here the transaction is through the money of one and the feet of the other, therefore they split.
It was stated [Tosephta Demay 8:1. If the buyer took the coin for himself, it becomes his property and he owes the original owner money. Hence, if he buys, he acquires the merchandise and as a ḥaver, he has to tithe.] : “Rabban Simeon ben Gamliel says, if he exchanged the coin he has to tithe.” Rebbi Yose [The Amora. The alienation means that the coins fall in unauthorized hands (that they are lost or stolen.)] said, this means that if somebody gives coins to another person to exchange them, when they are lost the recipient is answerable for their alienation.
Samuel [This refers to the last case in the Mishnah: he bought explicitly for himself and his partner but then the produce was mixed up.] says, if he distributes it himself [If the seller gave the two lots separately the ḥaver did not acquire the am haäreẓ’s part and might not have to tithe.] . Rebbi Eleazar said, only if he took his share last [In some situations, the ḥaver might have to tithe only his own share if he took it last.] . Rebbi Jonah said, both statements are necessary [Samuel and R. Eleazar do not disagree but speak about different scenarios.] . If he [The seller; the next “he” is the ḥaver buyer who never acquired the produce destined for the am haäreẓ and is not responsible for it.] distributes it himself and took his share first he only has to tithe his share. If he [The seller did not divide but the ḥaver who bought resolved in his mind that all produce would be the am haäreẓ’s except the last bunch that would be for himself.] did not distribute it but took his share last, he only has to tithe his share.
It was stated [Tosephta Demay 5:14, Avodah zarah 8:10, quoted in Babli Avodah zarah 63a, where, however, the second case is formulated so that the employer offers to pay the store for the purchases of the employee. The version discussed here, that the employer guarantees the employee’s expenses, is also in Yerushalmi Qiddušin 2:1 (fol. 62c), together with the interpretations of Rebbis Zeïra and Hila (Illa, La).] : “One may say to his worker [That the am haäreẓ worker would buy produce grown in the Sabbatical year which is forbidden for commercial transactions, or demay food and not tithe it. Since the money was given beforehand, it is spent on the responsibility of the worker alone.] : Here you have a denar, use it for food, here you have a denar, use it for drink, and not be worried about either the Sabbatical year [If the worker is a Gentile, one assumes that he pours out a small libation before he drinks and the wine is forbidden for usufruct since it was used for a pagan rite.] , tithes, or wine for libations [Since food and drink were bought on the employer’s credit, it is sinful for the employer to let the employee transgress religious laws on his behalf, or to have the Gentile worker use on his behalf wine of which all usufruct is forbidden to a Jew.] . But if he told him, go and buy yourself a loaf and I shall give you the money, go and buy yourself a reviït of wine and I shall give you the money, he has to worry [Since food and drink were bought on the employer’s credit, it is sinful for the employer to let the employee transgress religious laws on his behalf, or to have the Gentile worker use on his behalf wine of which all usufruct is forbidden to a Jew.] because of the Sabbatical year, tithes, and wine used for libations.” Rebbi Zeïra said [Why does the employer sin when the employee buys forbidden foods with his money?] , the grocer becomes the plenipotentiary of the employer to let the worker acquire [Hence, it is as if the employer himself gave the forbidden food to his employee and the employer is guilty of transgressing the prohibition to put a stone into the path of a blind man.] . Rebbi Hila said, the worker acquired for the employer from the grocer [In most cases, the opinion of R. Hila is not materially different from that of R. Zeïra, but in his opinion the grocer does not have any responsibility. (In the Babli version, the role of the grocer is the only question and it leads to rather forced solutions. The position of R. Hila is explicitly rejected in the Babli, Qiddušin 8b, as explained in חידושי הרשב״א ad loc.)] and then acquires it himself. What is the difference between them? If the grocer was deaf-mute. According to Rebbi Zeïra, he [The employer.] does not have to worry because a deaf-mute cannot become a plenipotentiary [The deaf-mute cannot act without a guardian.] ; according to Rebbi Hila, he has to worry.
It was stated [Tosephta Demay 6:4: “A Jew should not say to a Gentile, a Samaritan, or to one who cannot be trusted with tithes, here you have 200 zuz and pay for me to the treasury, but he says to him, free me from the treasury. Similarly, a person should not say to his friend, here you have 200 zuz and pay the leiturgia, but he says to him, separate me from the leiturgia.” The parallel is in Babli Avodah zarah71a.] : “A person should not say to his friend, here you have 200 zuz and pay for me to the treasury, but he says to him, free me from the treasury [The government requires taxes not in money but food and wine, where the Jew cannot appoint a plenipotentiary who for him buys untithed produce or, if he is a Gentile, wine for libations. He has to formulate it so that the other party (those described in the Tosephta) will not be appointed plenipotentiary. In the interpretation of R. Solomon ben Adrat (תשובות הרשב״א חלק א, תרפו), the king has wine which he forces the citizens to buy at fixed prices. Since this is all wine for libations, the Jew is unable to buy the wine for himself, so he gives money to his Gentile friend and tells him, not to buy for him, but to free him from his obligation. It is possible that the treasury will be satisfied with money and will not insist on delivery of the wine, but if it delivers, the wine will be the Gentile’s.] . Similarly, a person should not say to his friend, here you have 200 zuz and pay the leiturgia [Greek λειτουργία, ἡ. “public service”, offices and obligations forced upon private citizens by the government. Obligations included providing food and wine to officials or troups. The Jew himself could not satisfy his obligations with cheaper untithed produce and Gentile wine. (Cf. R. Solomon ben Adrat loc. cit.; בעל התרומות שער מו ח״ד יח in the name of Nachmanides.)] , but he says to him, free me from the leiturgia.”