MISHNAH: If one gives a green melon as heave and it turns out to be bitter, a water melon and it turns out rotten, it is heave and he should give heave a second time. If one gives an amphora of wine as heave and it turns out to be vinegar; if it was known that it turned into vinegar before he gave heave it is not heave [Even the Sages who declare wine and vinegar to be the same, their status as heave is revoked by rabbinic decree (cf. Chapter 2, Note 125).] , but if it turned into vinegar after he had made it heave, it is heave. In case of doubt it is heave and heave should be given a second time. Neither the first nor the second [heaves] do create dema‘ [Cf. Chapter 2, Note 49, and the next Mishnah.] by themselves nor does one have to pay the fifth [Cf. Mishnah 6:4 and Chapter 1, Note 71. In the interpretation of Maimonides (Terumot 5:22), the last sentence refers both to wine and to melons.] . If one of them fell into profane [food] it does not create dema‘ [The mixture of heave and profane food; cf. Demay Chapter 1, Note 175. The rules of repairing dema‘ are spelled out in Chapter 5. The Mishnah details the rules of the two heaves given under the circumstances of Mishnah 1. Since each of them is only heave if the other one is not needed by biblical rules, only both together constitute certain heave.] . If the other one fell into another place it does not create dema‘. If both together fell into one place they create dema‘ relative to the smaller one [If both heaves are given by the rules, the first one will be 2%, the second one 2% of 98% or 1.96% of the original volume.] .
HALAKHAH: “If one gives a green melon”, etc. We understand a water melon and it turned out rotten, but a green melon and it turned out bitter, was it not always bitter [The heave should be invalid.] ? Rebbi Joḥanan said, they made it doubtful whether it is food [The question is not whether it is bad quality for good of food but whether it is food at all. If it is food then the heave is heave, if it is not food then there can be no heave.] . Rebbi Jonah inquired: Is it doubtful as food in all respects, to become impure as food, that one burns it if impure [If it has been made heave and becomes impure, must it be burned as heave?] , one owes a fifth for it [Cf. Mishnah 6:4 and Chapter 1, Note 71. In the interpretation of Maimonides (Terumot 5:22), the last sentence refers both to wine and to melons.] , and one whips for it outside the walls [If it is Second Tithe while there is a Temple, it must be brought to Jerusalem and consumed there. Once it has entered the walls of the city of Jerusalem, it may not be taken out again and consumption outside the walls is a criminal offense.] , if one made an ‘eruv with it does he become a donkey-camel driver [On the notion of eruv, cf. Peah Chapter 8, Note 56. The question follows R. Meïr and R. Jehudah in Mishnah Erubin 3:4 who declare that a questionable eruv makes its owner a donkey-camel driver. A donkey driver has to walk behind his animal, a camel driver before it. A donkey-camel driver is in a dilemma. Without the eruv, he would be permitted to go from his house 2000 cubits in each direction. With the eruv, he may go 2000 cubits from the eruv in each direction. If the validity of the eruv is in question, he may walk on the Sabbath only in the domain which is the intersection of two circular discs of radius 2000 cubits, one centered at his house and the other at the place of his eruv.] ? There [It is not stated exactly where R. Joḥanan stated this rule but in Ševuot 2:1 (fol. 33d) he states that food of doubtful impurity (i. e., when an impure person is in doubt whether or not he touched some pure food) in the public domain is pure. This will imply that in a private domain it would be impure, as stated explicitly in Babli Avodah Zarah 37b, Ḥulin 9a.] , Rebbi Joḥanan said, a loaf which became impure in a domain that possibly is private and was touched in the public domain is impure. But in our case it is pure because there are two doubts [It is also a principle accepted in both Talmudim that something which is forbidden (or impure) only if two independent doubts are both resolved to forbid (or declare impure) is permitted (or declared pure) since from biblical law it would be permitted (or declared pure) even in the case of only one doubt. It seems that this leniency was a major point of contention between lenient Pharisees and restrictive Sadducees.] .
It was stated in the name of Rebbi Yose: “Green melon can be bitter only inside. What can he do? He adds to the outer part and gives heave [Tosephta 4:5. R. Yose disagrees with the Mishnah; a bitter melon given as heave is always certain heave since the part close to the skin can always be eaten. If the inner part is bitter, one should add some heave from another melon that is still ṭevel to avoid giving bad for good. In his opinion, there is nothing questionable.] .” Rebbi Benjamin ben Levi asked: Do the Sages disagree with him about a subject that can be checked? They disagree about the possibility of checking [Even if we check a number of melons and do not find one which is totally bad, this does not prove that the next one would not be totally bad.] .
“If one gave an amphora [An amphora full of wine given as heave for an entire harvest.] as heave and it turned out to be uncovered, or a water melon and it turned out to have holes, it is heave and heave should be given a second time.” [Tosephta 4:6. Both Talmudim forbid fluids that have stood uncovered and unsupervised since one is afraid a snake might have drunk from it and poured its poison into the drink. Similarly, if the water melon has two small holes which might come from the bite of a snake, we are afraid that the water melon was poisoned. If we were sure that this happened the wine in the amphora or the water melon would not be human food and could not possibly be heave. In case of doubt, one is in the situation described in the Mishnah.] Rebbi Jehudah ben Pazi, Rebbi Simeon [ben Laqish] in the name of Rebbi Joshua ben Levi: They forbade only when it was found to have a hole; therefore, from the start it is forbidden to give it as heave [If the holes were there when heave was given, it is not heave.] . Rebbi Jacob the Southerner asked before Rebbi Yose: Is this reasonable only if they saw it [The snake. Since we would not know whether the wine or the water melon was poisoned, the suggestion has to be rejected.] making the hole? He said to him: Would one know whether it poured poison into it? The colleagues asked before Rebbi Yose: What is the difference between that and the impure [This refers to Mishnah 2:2 where it is stated that impure produce, when unintentionally given as heave, is valid heave. Why can one not state that a perforated watermelon, when unintentionally given as heave, is unconditionally valid heave? The answer is that impure food is still food but a perforated watermelon is no longer food.] ? He said to them: The impure is unchanged, so is that which caused impurity. But here, it is dust.
Rebbi Jacob bar Aḥa in the name of Rebbi Joḥanan: Practice follows Rebbi [This refers to the last part of the Mishnah, about giving vinegar as heave for wine, which is declared impossible by Rebbi but possible by R. Ismael ben R. Yose (Chapter 2, Note 125).] . Rebbi Ḥiyya in the name of Rebbi Joḥanan: It [The Mishnah, and as anonymous statement it determines practice.] follows Rebbi. Rebbi Abba bar Cohen asked before Rebbi Yose: Did not Rebbi Ḥiyya [bar Abba] say in the name of Rebbi Joḥanan, [between] Rebbi and his colleagues, practice follows Rebbi [In the Babli, Eruvin 46b, Ketubot 21a, Baba batra 124b, in the text of Rashi and the Venice prints (and the Rome ms. of the Yerushalmi) the rule is accepted only for disagreements between Rebbi and a single opponent, but in the Munich ms. and a reading mentioned by R. Moses from Coucy (Semag Aśê 74), the rule reads as in the Yerushalmi.] , and Rebbi Jonah said, including Rebbi Eleazar ben Rebbi Simeon [He was the greatest authority in the days of the young Rebbi.] ? He said to him, because Rebbi Ismael ben Rebbi Yose stated in his father’s name, and Rebbi Yose [This is the reading in both mss. but, since it belongs to R. Yose’s response to R. Abba bar Cohen, it must read ד׳ יוסה, R. Assi.] said in the name of Rebbi Joḥanan, [between] Rebbi Yose and his colleagues, practice follows Rebbi Yose, not his colleagues [Accepted as operative statement in Babli Eruvin 46b.] , so you should not say this applies here also [The rules apply only to disagreements between Sages of the same generation, not to rulings of later generations. In our case, this has to be spelled out since R. Ismael ben R. Yose was the teacher of Rebbi (cf. Kilaim Chapter 9, before Note 88.)] ; for this reason he had to say that practice follows Rebbi.
Rebbi Zeїra, Rebbi Jacob bar Idi in the name of Rebbi Joḥanan: [Between] Rebbi Meїr and Rebbi Simeon, practice follows Rebbi Simeon [Cf. Demay Chapter 5, Note 129; Ševi‘it Chapter 8, Note 105, Babli Eruvin 46b.] . [Between] Rebbi Simeon and Rebbi Jehudah, practice follows Rebbi Jehudah, and one does not have to mention that [between] Rebbi Meїr and Rebbi Jehudah, practice follows Rebbi Jehudah [Babli Eruvin 46b.] . Rebbi Abba bar Jacob bar Idi in the name of Rebbi Jonathan: [Between] Rebbi Meїr and Rebbi Simeon, practice follows Rebbi Simeon. [Between] Rebbi Simeon and Rebbi Jehudah, practice follows Rebbi Jehudah, and one does not have to mention that [between] Rebbi Meїr, Rebbi Jehudah, and Rebbi Simeon practice follows Rebbi Jehudah. From this you infer that [between] Rebbi Simeon and Rebbi Jehudah, practice follows Rebbi Jehudah.
How does he handle it [This refers to Mishnah 1. When the two heaves have been given, how are they to be disposed of since they are not certain heave but forbidden to laymen?] ? He gives both of them to the Cohen; the Cohen pays for one of them. Which one does he pay for, the larger or the smaller one? Since we have stated: “they create dema‘ relative to the smaller one,” this implies that he pays for the larger one.
MISHNAH: Partners who gave heave one after the other, Rebbi Aqiba says both of their heaves are heave. But the Sages say, the heave of the first one [only] is heave [Since the first heave turned ṭevel into profane food and heave may not be given from profane food.] . Rebbi Yose says, if the first one gave the full measure [The measure to be applied is discussed in the Halakhah but not determined. Partnership cannot apply to the heave of the tithe since the tithe must be given to an individual Levite.] of heave, then his heave is heave, but if the first one did not give the full measure of heave, then the heave of the second is heave. Where was this said [This refers to the preceding Mishnah of two partners giving heave and confirms Maimonides’s interpretation of that Mishnah. It is stated here that for heave the relationship between partners is like that between a person and his family.] ? When he did not say anything. But if he empowered a member of his family, his slave, or his slave girl, their heave is heave. In case he revoked, if he revoked before heave was given, his heave is not heave. But if he revoked after heave was given, his heave is heave. Workers have no right to give heave except for those who press grapes because they make the wine press impure [The winepress cannot become impure since it is built into the earth, but the contents of the vat into which the juice flows will become impure if it is touched by an impure person. It is assumed that the grapes have not become prepared for impurity by the juice lost from crushed grapes in the transport to the press since that juice is lost, against the will of the vintner. If either one of the workers or the vintner is not a Fellow (as defined in the Introduction to Tractate Demay), heave must be given before pressing starts. If the vintner is not present, the workers have implied authorization to give heave.] .
HALAKHAH: Where do we hold? If they assigned [The translation follows Maimonides. R. Simson explains: If they were competent [in the laws to be applied.] It is difficult to accept this interpretation in the Halakhah.] , even Rebbi Aqiba agrees. If they did not assign, even the rabbis will agree. But we assume they were silent. Rebbi Aqiba says, if they are silent they do not assign, but the rabbis hold that by being silent they will assign.
In the opinion of Rebbi Aqiba, the seah [Assuming that the amount of heave given each time is a seah. Since R. Aqiba designates both as heave, neither one can be totally heave. It is argued that the first heave is still subject to the tithes to be given after heave was completed.] of the first one is half ṭevel and half heave containing undistributed tithes. The seah of the second is half heave and half total ṭevel [Since no heave comes after this.] . That does not seem necessary: may the half seah of the second free the half seah of the first? Let us hear from the following: Ariston brought produce, left some in the sack, and gave heave. The case came before Rebbi Yose; he said it is a standing assumption that he gave heave for everything [Everybody gives heave for everything he has since only in this way can he be sure to have fulfilled his obligations. The interpretation of the opinion of R. Aqiba which splits the heaves is rejected.] .
Does one understand this according to Biblical rules [One grain is enough for an entire silo, cf. Peah Chapter 1, Note 9. In this case, it is impossible that the first heave should not free all of the produce and the second case of R. Yose in the Mishnah cannot happen..] , or according to the rules of his colleagues? If you take it as referring to the biblical measure, Rebbi Yose cannot agree with the rabbis. If you take it as referring to the measure of his colleagues [As explained in Mishnah 4:3.] , Rebbi Yose agrees with the rabbis [One may argue that R. Yose simply explains the intent of the Sages in detail.] .
Does this not disagree with Rebbi Simeon ben Laqish? As Rebbi Simeon ben Laqish said, nobody may revoke his agency by words. Explain it that he said, go and fix it to the North and [the agent] went and fixed it to the South [The disagreement between R. Simeon ben Laqish and R. Joḥanan, whether a verbal authorization may be revoked by simple pronouncement, not necessarily in the presence of the agent, is in Giṭṭin 4:1–2, fol. 45c, and Babli Qiddušin 59a. The Babli explains the problem away; its opinion is that R. Simeon ben Laqish disallows verbal revocation only in matters of marriage and divorce which never can be executed by words alone. The Yerushalmi disagrees and holds that R. Simeon ben Laqish always requires an action (in the case of authorization to proceed with a divorce, a court action) to terminate duly established agency. In our case here, he permits a shortcut for termination only if the agent deviates from his instructions. On the other hand, the Yerushalmi notes that in case of an action of divorce, agency can be terminated only in the presence of the agent or by written document delivered to the other party even for R. Joḥanan since any other course of action would have unforseeable consequences.] .
Rebbi Joḥanan said, one makes the vat impure the moment the press men went over it warp and woof [In both wine and oil presses, the vat is covered by wooden planks; the workers stand on the planks and pound on them walking crosswise over them.] . But have we not stated [Tosephta 1:8: “If workers gave heave from a vat, their heave was not heave. But if the vat was small and others were using it, their heave was heave.” If the vat has to be emptied because of other uses, then time is of the essence and the workers have implicit authorization for heave.] : “If workers gave heave from a vat, their heave is not heave. But if the vat was small or if the owners or others stir it, their heave is heave.” Because others stir it, but if others do not stir it, their heave would not be heave! What is this? One statement for wine, the other for oil. But are not wine and oil the same? Wine is frequently impure [Therefore, the workers are authorized to give heave.] , oil is not.
It was stated [Tosephta 3:12. In the Tosephta, the positions of the Houses of Hillel and Shammai are switched, the statement of R. Yose is in the name of R. Jehudah, the statement of R. Simeon is missing, and the Sages are quoted to require removal of heave and tithes. Except for the switch between R. Yose and R. Jehudah, which is undecidable and may stem from an abbreviation ד״י, the reading of the Yerushalmi is superior in every detail. The problem discussed here and in the next paragraphs is, when may one give finished wine (or olive oil) which happens to be in the building of the press for wine (or oil) to be made from the grapes (or olives) newly brought into the press. The underlying principle is that the fruits must be crushed with some fluid oozing out, so that the fruit can no longer be used as fruit.] : “When does one start to give heave from grapes? From the moment one went over it warp and woof. When does one start to make them impure? The House of Shammai say, after one removed second [tithe], the House of Hillel say, after one removed first [tithe]. Rebbi Yose said, practice should follow the House of Shammai but the public follow the House of Hillel. Rebbi Simeon says, the words of the House of Shammai were reasonable in the time of the Temple, the words of the House of Hillel are reasonable in the present time. But the Sages say unlike either of them, but that one removes heave and the heave of the tithe; then one may make it impure immediately.”
“When does one start to give heave from olives? Some Tannaїm state, when they have been ground [In Tosephta 3:13, this is the opinion of R. Simeon, the opposing opinion that of the anonymous majority. Since the Yerushalmi does not quote names, it abstains from deciding between the opinions.] , and some Tannaїm state, when they are being weighted [Except for choice olives from which oil can be obtained by squeezing by hand, olives have to be ground before they are put into the vat to be pressed, and the pressing is mechanical weighting down.] . It is clear following him who says when they are being weighted. For him who says when they have been ground, did not Rebbi Joḥanan say, one makes the vat impure the moment the press men went over it warp and woof? This one is for wine, the other one for oil. Is not wine under the same rules as oil? What would be the difference between wine and oil? Wine is frequently impure, oil is not frequently impure. Rebbi Ḥiyya bar Ada said, both are frequently impure but impurity is found with wine more often than with oil.
“ [Tosephta 3:13.] Rebbi Yose ben Rebbi Jehudah said, if he wishes he may bring olives, put them under the pounding stone [Explanation of the Babli, Baba Batra 67b.] , and tread on it. They said to him, olives cannot be compared to grapes. Grapes are soft [In the Tosephta: ריכות.] and release the wine, olives are hard and do not release the oil [Without mechanical pressure greater than that generated by people standing on top of the press.] .”
MISHNAH: He who says the heave of this heap is contained in it, the tithes are contained in it and the heave of this tithe is contained in it, Rebbi Simeon says he gave it a name [In that case, the entire heap becomes dema‘ and can be used only by a Cohen since the heaves are valid but their place is indeterminate. The Sages hold that dema‘ can be created only by heave falling into profane food; heave and dema‘ can never be created simultanously. They hold that designating heave without indicating its place is an invalid action.] but the Sages say, only if he said in its Northern or Southern part. Rebbi Eleazar Ḥisma [Tanna of the second generation, student of R. Joshua. He admits even more possibilities than R. Simeon since the latter at least requires a declaration that the heave be “contained in it” whereas R. Eleazar Ḥisma already makes the declaration valid if only “from it” is declared. Since tithes and the heave of the tithe do not have to be earmarked, he will hold that tithes and heave of the tithe can be declared without specifying any place.] says, he who says, the heave of this heap is from it for itself, gave it a name. Rebbi Eliezer ben Jacob says, he who says, one tenth of this tithe is made heave of the tithe for it, gave it a name [R. Eliezer ben Jacob holds with the Sages for heave, which must be earmarked, and possibly for the first tithe. But he rejects the restrictions for heave of the tithe which may be given from any place (Chapter 2, Note 6).] . One who gives heave before First Fruits, First Tithe before heave, Second Tithe before First, even though he transgresses a prohibition what he did is done since it is said (Ex. 22:28): "Your fullness [In Mekhilta Mišpaṭim 19, Babli Temurah 4a, it is explained that “your fullness” refers to First Fruits because they are taken when the harvest is still full and nothing had been taken yet.] you should not make follow your dema ’ ”. From where that First Fruits should precede heave since either one is called heave and first. First Fruits should precede since they are due before everything else, heave before First Tithe because it is first, First Tithe before the Second because it contains “first” [Commentary of Maimonides: “The Eternal called heave ‘first’ when He said (Deut. 18:4): ‘The first of your grain, your cider, and your oil.’ He called it heave (Num. 18:8): ‘Lo, I gave to you the guarding of My heaves.’ The Eternal called First Fruits first when He said (Deut. 26:22): ‘You shall take from the first of any produce of the Land.’ He called it heave (Deut. 12:27): ‘You must bring there … and your hand’s heave.’ They said in Sifry (Deut. 62,73): ‘Your hand’s heave means First Fruits.’ This proves that the verse speaks of First Fruits since it deals only with what has to be brought to the Temple and no heave has to be brought to Jerusalem except First Fruits for which there is an explicit verse. They said that First Tithe contains ‘first’, i. e., the heave of the tithe about which the Eternal said (Num. 18:26): ‘You shall lift from it the Eternal’s heave,’ and heave is called ‘first’ ”. {The statement in Sifry is quoted in Bikkurim 2:1 (fol. 64c), Babli Pesaḥim 36b, Yebamot 73b, Makkot17a, Ḥulin 120b, Me‘ilah 15b.]] .
HALAKHAH: Rebbi Yose ben Rebbi Abun in the name of Rebbi Joḥanan: Rebbi Simeon goes with the House of Shammai since the House of Shammai say it is sanctified as dema‘ [While this statement is repeated in Halakhah 4:5, it is difficult to find its origin. The commentaries refer to Mishnah 1:4, which is inapplicable since there no dema‘ is created.] and so Rebbi Simeon says it is sanctified as dema‘.
So far if he says “contained in it”. What if he said “in it”? Let us hear from the following [Tosephta Ma‘aser Šeni 3:17.] :“The second tithe in this property shall be redeemed by those coins” and he did not specify [In the Tosephta: He did not specify its place. The Tosephta deals with the case that the owner wants to redeem second tithe at the moment he is tithing his produce. While he does not have to separate the tithe, as explained in Tractate Demay, he must indicate its place.] , Rebbi Simeon said he gave it its name but the Sages say he did not do anything unless he says, in its Northern part, or in its Southern part.” That means there is no difference between “contained in it” and “in it”.
The words of the Sages [This refers to the sentence of the Mishnah starting “but the Sages say.”] . Rebbi Zeїra in the name of Rebbi Eudaimon from Haifa in the name of Rebbi Simeon ben Laqish (Num. 18:27): “Your heave will be thought of;” (Num. 18:26) “you shall lift.” Just as thought has to be definite, so your giving heave has to be definite [The order of the verses should be reversed: Because your heave is thought of, it must be parallel to what you would do if you lifted the heave out of the produce. Since what you lift is well defined, what you think of also must be well defined.] .
If he said, the heave of this and that heap should be in this one; Rebbi Joḥanan said, the place where the heave of the first ended, there the second also ends [Since this follows the rules of the Sages for whom no dema‘ is created, it is understood that both times he indicated that the heave should be, e. g., in the Northern part of the heap. Then we assume that he intended to lift the two heaves together; the two heaves must be contiguous. The rules of lifting in this case of vague determination are spelled out in the next paragraph.] . Rebbi Isaac ben Eleazar asked: If a seah of heave fell into a heap [Here it is assumed that the original volume of the heap is at least 100 seah. In that case, no dema‘ is created but the original heave or its equivalent may simply be lifted out as explained in Chapter 5. If the argument of R. Joḥanan is correct, here also the new heave should be adjacent to the heave to be lifted.] and he said, the heave of this heap is contained in it [Assuming that the heave fell into the center of the heap; in that case the declaration is acceptable also to the Sages.] , does the heave of the heap end at that seah?
“ [Tosephta 4:9. Everybody agrees that “the Northern part” is not specific enough to denote the place of heave; the reasonable thing would be to remove the grain for heave first and then give it a name; in that way only 2% has to be given.] If he said, the heave of this heap shall be in its Northern part, the Northern half is dema‘, the words of Rebbi;” he takes one half. “But the Sages say, like a X [Capital Greek letter χ.] ;” one quarter. “Rabban Simeon ben Gamliel says, he takes its heave from the Northernmost part;” one eighth [It is assumed that the heap is in the form of a perfect cone with circular base. It is easy to understand the positions of Rebbi and the Sages. Rebbi draws a plane perpendicular to the base plane in East-West direction through the center. Anything in the Northern half of the heap now may be heave; therefore, the entire Northern half is demaʻ. The Sages draw a plane perpendicular to the base plane in North-South direction through the center and then two planes perpendicular to the base plane, making ±45° angles with the North-South plane, cutting the base plane in two lines forming a χ. The volume cut out by the Northern half of these planes is 1/4th of the entire volume. It is more difficult to reconstruct the Talmud’s interpretation of the argument of Rabban Simeon ben Gamliel. If the idea is that in the base plane one draws a chord of the base circle so that it cuts off 1/8th of the area of the circular disk, let 2α be the angle of the circular sector subtended by the segment measured in radians and choose the radius of the circle as unit of measurement. Then the area of the segment is the area of the sector minus the area of the triangle from the center: A = α - sin α cos α = π/8 or α = .8832 rad = 50.63°. In that case, the height h of the segment is 1 - cos α = .365 of the radius of the base circle. However, if the idea is that the volume cut off from the cone by a plane, perpendicular to the base plane, through the chord, should be one eighth of the total volume then the problem is indeterminate since the ratio of radius of the circle to the height of the cone is not given. If this is assumed to be 1, the equation to be solved is (α - sin α cos α)(1-cos α) = 3 π/8 or α = 1.4526 rad = 83.22°. However, the most likely explanation seems to be that in a heap of base radius r and height H, the total volume is computed as 1/3 πr2H and one eighth of this is taken from the northernmost part of the heap.] .
What if the heave of two heaps [was given] together [He gave heave for two heaps together which is perfectly legal. But he used the language of the Mishnah, “in the Northern part of one of them” and either he did not specify which of them or he did and forgot what he specified.] ? Rebbi Joḥanan said, they are both forbidden as dema‘, but Rebbi Simeon ben Laqish said, they are not forbidden [This sentence is from Demay 7:9 and explained there, Note 135.] .
Rebbi Hoshaia bar Shammai said, if he had before him two seot and one heap [Assuming that the heap contains 50 seot.] and said, one of the seot is heave for this heap, he sanctified them and it is not known which one is sanctified [Hence, both have to be given to the Cohen who may be required to pay for one of them.] . If he had before him two heaps [Of 25 seah each.] and one seah and said, this is heave for one of the heaps, one is put in order but we do not known which one [Heave has to be taken a second time from both heaps with a declaration: “If this heap is already put in order I did not do anything and the grain is profane. But when the heap is still ṭevel it shall be heave.” All three heaves must be given to the Cohen who may be asked to pay for one of them.] .
Rebbi Ḥama bar Uqba in the name of Rebbi Yose bar Ḥanina: Since he transgresses a prohibition it follows that what he did is valid. Rebbi Ḥama bar Uqba said in the name of Rebbi Yose bar Ḥanina: He is whipped [In Babli Temurah 4a, the position of the Yerushalmi is rejected and it is proved that R. Yose ben R. Ḥanina holds that the person is not whipped but R. Eleazar says, he is whipped. The argument ascribed to those who hold with the Yerushalmi is that a simple transgression committed by speech only can never be punished by a court (לאו שאין בו מעשׂה). Since R. Yose ben R. Ḥanina holds here that the fact that he committed a sin proves that the status of the grain has changed from ṭevel to heave and tithes, in the interpretation of the Yerushalmi the transgression is one of fact rather than of speech.] . Rebbi Zeïra said, they objected before Rebbi Joḥanan and he remained silent: If he transgresses, is he whipped or not? Rebbi Aḥa bar Jacob in the name of Rebbi Joḥanan: He is not whipped [He disagrees with R. Zeїra and holds that R. Joḥanan articulated his position.] . How does Rebbi Joḥanan explain (Ex. 22:28): “Your fullness you should not make follow your dema‘”. He explains it for removal [He takes דמע to mean “fluid”, derived from דמעה “tear” and reads: Your fullness and your fluids you should not keep too long, referring to tithes of grain, wine, and olive oil which have to be removed from his house and delivered to the poor at the end of the third and sixth years of the Sabbatical cycle.] .
When does he transgress? Rebbi Ḥiyya bar Abba says, from the start [The moment he separated what should be given second without giving the first he is guilty. For R. Samuel bar Rav Isaac, a formal transgression is caused only if the first also is given later.] ; Rebbi Samuel bar Rav Isaac says, at the end. What difference comes between them? The burning of the heap is between them [He gave First Tithe from a heap which burned before he could give heave. For R. S. Lieberman the meaning is that, according to the second opinion, he has to burn the entire heap in order to avoid committing a sin.] ; for Rebbi Ḥiyya bar Abba he transgressed, for Rebbi Samuel bar Rav Isaac he did not transgress.
Rebbi Samuel bar Abba asked: First Tithe which he preceded to ears, does he transgress or is he transgressing only the right order [Since the obligation of heave starts only after threshing, First Tithe given from ears of grain is free from the obligation of heave and cannot be said to be given before heave; but giving it certainly does not follow the prescribed order.] ?
They stated before Rebbi Abbahu: “Heave does not interfere with First Fruits. [Tosephta 4:10. Even if heave was taken, First Fruits still may be given from the same crop.] ” He said to them, this is from Abba Palaemon [A Tanna of the fifth generation; in Babylonian sources he appears as פלימו. In Soṭa 1:2 (fol. 16c), corresponding to Babli 4a, his name is Minyamin (a form of Binyamin). [Palaemon, Greek Παλαίμων, name of a sea-god, also epithet of Heracles a. o., also used in Roman times (e. g. Remmius Palaemon, Roman grammarian in the time of Tiberius and Claudius.) Because of the acoustic similarities between Palaemon and its counterpart Binyamin in the parallel passages, the Greek name might be a כינוי for the Biblical name, which would explain the apparent discrepancy. On the use of specific, traditional substitutes, כינוים, for a person’s Hebrew name, see also E. & H. Guggenheimer, Jewish Family Names and their Origins, an Etymological Dictionary, Hoboken N.J. 1992, pp. xiv–xv; Etymologisches Lexikon der jüdischen Familiennamen, München 1996, p. xv. (E. G.)]] . Rebbi Yose asked, which [statement of] Abba Palaemon? Rebbi Mana said to him, I heard my father stating: “First fruits in his right hand, heave in his left hand.” Some Tannaїm state, “he transgresses,”, some Tannaїm state, “he does not transgress.” He who says he transgresses, the rabbis; he who says he does not transgress, Abba Palaemon [This refers to the disagreement between R. Ḥiyya bar Abba and R. Samuel bar Rav Isaac: For Abba Palaemon, a sin can be committed only in changing the prescribed order of heave and tithes, but changing the order between First Fruits and heave means disregarding a positive commandment, not transgressing a prohibition.] .
MISHNAH: If somebody intends to say [As dedication after separation of the amount (or animal) given.] heave but says tithe, tithe but says heave, fire offering but says well-being offering, well-being offering but says fire offering, that I shall not enter this house [This and the next example are instances of “vows of prohibition”, whereby a person forbids otherwise permitted enjoyments to himself (Num. 30:3).] and he says that one, that I shall have no enjoyment from this one and he says from that one, he did not say anything unless his statement and his intention be equal.
HALAKHAH: There [Mishnah Nazir 5:1. The entire Halakhah is copied from Nazir, Halakhah 5:1.] , we have stated: “The House of Shammai say, dedication in error is dedication.” Rebbi Jeremiah said, if he intends to say “profane” and he says “fire sacrifice”, he dedicated it [This is his interpretation of the House of Shammai’s position.] . Rebbi Yose said, we consider only if he intended to dedicate but he erred because of something else [The full text of Mishnah Nazir5:1 is: “The House of Shammai say, dedication in error is dedication, but the House of Hillel say, it is no dedication. How is that? If he said, the black bull coming out first from my house shall be dedicated [as sacrifice] and a white one came out, the House of Shammai say, it is dedicated, but the House of Hillel say, it is not dedicated.” R. Yose restricts the opinion of the house of Shammai to the case when he wanted to dedicate some animal for a certain kind of sacrifice and the only error is in the individual selected.] . What is the status of this Mishnah [The Mishnah here in Terumot. For R. Jeremiah, it only follows the House of Hillel.] ? In the opinion of Rebbi Jeremiah it is in dispute, in the opinion of Rebbi Yose it is everybody’s opinion.
It was stated [The main tannaїtic source is Sifra Wayyiqra דבורא דחובה פרשה ט. The argument is discussed in Babli Ševu‘ot 26b.] : “With his lips but not in his mind.” I could think that I exclude him who decides in his mind, the verse says (Lev. 5:4): “To articulate [The verse reads: “Or a person who might swear to articulate with his lips for bad or good, about all a man might articulate in an oath, when he forgot and then remembered about any of these.” Since articulate is used twice in the same verse it is assumed that the second mention is not identical with the first. Since the first mentions lips, the second cannot speak about the same situation. {Biblical dictionaries tend to define בטא as “speaking hastily” on basis of Prov. 12:18. However, as Rashi points out, the context requires: (17) “He who breathes trust will tell the truth but a false witness trickery. (18) There is one who articulates like sword thrusts but the tongue of the Sages is healing.” The chiastic arrangement of the verses shows that they form a unit. Therefore, the rabbinic use of the word as “carefully articulated” is borne out by biblical usage. Cf. also Arabic بطو “to be slow-going.”}] ”. But Samuel said, he who decides in his mind is not obliged until he pronounces with his lips. But did we not state: “(Ex. 35:5) Everyone who volunteers in his mind [The verse is quoted incorrectly (it must be לבו not לב). The verse speaks of voluntary gifts for the Tabernacle; explicit pledges are never mentioned there.] ,” that is he who decides in his mind. You say, that is he who decides in his mind, but maybe that is he who pronounces with his lips? When he says (Deut. 23:24): “What comes out from your lips you have to keep [“What comes out from your lips you have to keep as you made a vow of a voluntary gift to the Eternal your God, as you pronounced with your mouth.” A voluntary gift here is a sacrifice; the verse insists that such a vow is valid only if pronounced.] ,” that speaks about him who pronounces with his lips. Therefore, how can I confirm “every one who volunteers in his mind?” That is he who decides in his mind. What Samuel said refers to a sacrifice.
MISHNAH: The heave of the Gentile and the Samaritan is heave, their tithes are tithes, and their dedications are dedications [The dedications of Gentiles are valid dedications by biblical decree (Lev. 22:25). Heave and tithes of Gentiles are accepted by analogy. The problem of Samaritans is that they are Sadducees and do not follow rabbinic rules; it is decreed that any heave and tithes given by them under their rules are valid.] . Rebbi Jehudah says, a Gentile cannot have a fourth year vineyard [The yield of the fourth year of a newly planted vineyard is holy and must be redeemed before consumption, Lev. 19:24. For R. Jehudah, the obligation of the fourth year is tied to the possession of the Land; for the Sages, it is an extension of the duty of ‘orlah which also applies outside the Land.] but the Sages say, he may have. The Gentile’s heave creates dema‘ and one is obliged to a fifth [Cf. Mishnah 6:4 and Chapter 1, Note 71. In the interpretation of Maimonides (Terumot 5:22), the last sentence refers both to wine and to melons.] [Since Lev. 22:25 implies that dedication by a Gentile is a meritorious action, it follows that all stringencies of dedications have to be applied.] for it, but Rebbi Simeon frees from the obligation.
HALAKHAH: “ [Tosephta 4:13. The entire Halakhah deals only with Gentiles. For the treatment of Samaritans either as Jews or as Gentiles cf. Demay 3:4, p. 467.] If he brought heave from his house [The preceding Tosephta stated that heave and tithes given by the Gentile from the threshing floor are unquestionably valid since they were given in the open and following the rabbinic rules. The problem is only with gifts given from the barn where we do not know how these were separated.] one treats it as ṭevel and Great Heave, the words of Rebbi [Rebbi requires that the produce be treated as heave, to be consumed only by a Cohen, but also as ṭevel, that even the Cohen may use it only if he gave heave for it from another batch of the same produce. Similarly, in the other cases Rebbi requires that heave and tithes be given from the Cohen’s own produce.] ; Rabban Simeon ben Gamliel says, it is certainly heave. If he brought First Tithe from his house, one treats it as ṭevel and First Tithe, the words of Rebbi; Rabban Simeon ben Gamliel says, he needs only to separate First Tithe. If he brought Second Tithe from his house, one treats it as ṭevel and Second Tithe, the words of Rebbi; Rabban Simeon ben Gamliel says, he needs only to separate Second Tithe.” Rebbi Yose ben Rebbi Abun said, Rebbi worries that maybe he gave from one kind on another [In that case, the heave and tithes would be invalid.] but Rabban Simeon ben Gamliel worries thay maybe he inverted the order [He does not have to worry, but if the Gentile might have separated tithe before heave nothing bad has happened since heave and tithes are valid by Mishnah 6 and the Gentile is not subject to the rabbinic prohibitions.] .
“The Gentile’s heave creates dema‘ and one is obligated to a fifth [Cf. Mishnah 6:4 and Chapter 1, Note 71. In the interpretation of Maimonides (Terumot 5:22), the last sentence refers both to wine and to melons.] [Since Lev. 22:25 implies that dedication by a Gentile is a meritorious action, it follows that all stringencies of dedications have to be applied.] for it, but Rebbi Simeon frees from the obligation.” Rebbi Zeïra said, I said this before Rebbi Abbahu in the name of Rebbi Joḥanan: They disagree only for the heave of his threshing floor. But for a Gentile who bought the produce of a Jew [After it was harvested. R. Simeon teaches that real estate in the Land of Israel held by Gentiles is free from all obligations of the Land, cf. Peah Chapter 4, Note 129, Demay Chapter 5, Note 102.] , even Rebbi Simeon will agree. Rebbi Abbahu said to me in the name of Rebbi Joḥanan, the disagreement is about the latter case. It is difficult according to Rebbi Simeon, does he free his ṭevel from the Torah and you say so [If the Gentile bought produce after threshing, obligated for heave but before heave was taken, then his heave will free the grain for consumption by Jews. Since his heave has all the force of heave given by a Jew, why should it not be subject to all rules of heave?] ? But are sacrifices [Sacrifices given to the Temple by Gentiles are accepted by biblical law, cf. Note 93.] not from the Torah, and nevertheless Rebbi Simeon frees, as we have stated there [Mishnah Zebaḥim 4:5, and similarly Tosephta Zebaḥim 5:6. In all these texts, R. Simeon is quoted as freeing from punishment and R. Yose as declaring guilty. This is also a necessary reading here since the argument is that R. Simeon considers the Gentile’s sacrifice to be a genuine sacrifice acceptable to Heaven but not subject to any of the restrictions imposed on Jewish sacrifices; in parallel, the Gentile’s heave is heave but subject to its rules. (In some Mishnah mss. and editions, “R. Simeon” is replaced by “R. Meїr.”) Maimonides, both in his Commentary and his Code (Pesule Hammuqdašim 18:24) follows R. Simeon, against the rule that R. Yose prevails over R. Simeon. As R. Aqiba Eiger points out, the Babli quotes two instances (Zebaḥim 116b, Menaḥot109b) of actual sacrifices performed for Gentiles outside the Land. Since the action of a respected authority, in this case Rava, the unquestioned leader of his generation, overrides all decision rules, Maimonides is justified.] : “Sacrifices of Gentiles are not subject to piggul [A sacrifice brought with the intent of eating it at an inappropriate time or inappropriate place, a deadly sin (Lev. 7:18, 19:7).] , left-overs [Leftovers from sacrificial meat remaining after the allotted time, whose consumption is sinful.] , and impurity and one who slaughters them outside [Sacrificed outside the Temple, a prohibition restricted to “the Children of Israel”, Lev. 17:3.] is free [from punishment], the words of Rebbi Yose, but Rebbi Simeon declares him guilty.” They wanted to say that they disagree only about the fifth but not about dema‘. They found stated: It is all the same.