The Law of Agriculture in the Mishnah and the Tosefta (3 vols): Translation, Commentary, Theology 9789047416371, 9047416376

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The Law of Agriculture in the Mishnah and the Tosefta

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HANDBOOK OF ORIENTAL STUDIES SECTION ONE

ANCIENT NEAR EAST EDITED BY

H. ALTENMULLER • B. HROUDA • B. A. LEVINE • R. S. O'FAHEY K. R. VEENHOF • C. H. M. VERSTEEGH VOLUME SEVENTY-NINE/ONE

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The Law of Agriculture in the Mishnah and the T osefta Translation, Commentary, Theology

Edited by

Jacob Neusner

BRILL LEIDEN • BOSTON 2005

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This book is printed on acid-free paper.

Library of Congress Cataloging-in-Publication Data Mishnah. Zera'im. English. The law of agriculture in the Mishnah and the Tosefta : translation, commentary, theology I edited by Jacob Neusner. p. em. - (Handbook of oriental studies. Section I, Ancient Near East, ISSN 0169-9423 ; v. 79) Includes bibliographical references and index. ISBN 90-04-14503-6 I. Mishnah. Zera'im-Commentaries. 2. Tosefta. Zera'im-Commentaries. 3. Agricultural laws and legislation (Jewish law). 4. Mishnah. Zera'im-History. I. Neusner, Jacob, 1932-. II. Tosefta. Zera'im. English. III. Title. IV. Handbuch der Orientalistik. Erste Abteilung, Nahe und der Mittlere Osten ; 79. Bd. BM506.Z8E5 2005 296.1 '231 07-dc22 2005054264

ISSN 0169-9423 ISBN 90 04 14977 5

© Copyright 2005 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill Academic Publishers, Martinus Nijhoff Publishers, and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Brill provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. PRINfED IN THE NETHERLANDS

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CONTENTS Volume One

Editor's Preface Jacob Neusner

XV

List of Contributors

XIX

List of Transliterations ... .. .... .. .. .. .... .... .......................... .... .. .... .... .....

XXI

HISTORY OF THE MISHNAIC LAW OF AGRICULTURE Alan ]. Avery-Peck

3

Preface INTRODUCTION

Introduction ................................................................................ Abbreviations and Bibliography ................................................

11 21

DEVELOPMENT OF THE TRACTATES

The The The The The The The The The The The

Mishnaic Division of Agriculture ... ................................... Development of the Tractates: Peah ..... .... .. ...... .. .. .. .. .... .. . Development of the Tractates: Demai ... .. ...... .. .. ...... .... ... Development of the Tractates: Kilaim ... .. .. .. .. .. .. .. .. .. .. .. .. . Development of the Tractates: Shebiit ....... .... .. .. ........ ..... Development of the Tractates: Terumot .......................... Development of the Tractates: Maaserot ............. .. .. .. .. .. . Development of the Tractates: Maaser Sheni ................ Development of the Tractates: Hallah ............... .... .. .. .. .. . Development of the Tractates: 'Orlah ............................ Development of the Tractates: Bikkurim ........... .. .. .. .. .....

29 51 85 115 14 7 184 228 253 293 309 324

HISTORY

The History of the Mishnah's Division of Agriculture. Before 70: The Mishnah's Division of Agriculture in the Time of the Temple ........................................................

341

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Vl

The History of the Mishnah's Division of Agriculture. From 70 to 140. The Mishnah's Division of Agriculture in the Period of Y avneh ........................................................ The History of the Mishnah's Division of Agriculture. From 140 to 170. The Mishnah's Division of Agriculture in the Period of U sha ......................................................... ... CoNcLusioNs .. .. .. .... .. .. .. ......... .. ............. .. ......... .. ............... .. ..... ....... ..

350

363 383

PART ONE

MISHNAH-TOSEFTA BERAKHOT Tzvee :(phavy Acknowledgments

401

INTRODUCTION

Introduction .. .. .. .. .. .. ........... .. .. .. .. ....... .. .. ........... .. .. ....... .. ..... .. .. ..... Abbreviations .... .. .. .. ............. .. .. ......... .. .. .. ............. .. ....... .. ..... .. ..... Bibliography ................................................................................

405 428 430

TExT AND CoMMENTARY

Mishnah-Tosefta Mishnah-Tosefta Mishnah-Tosefta Mishnah-Tosefta Mishnah-Tosefta Mishnah-Tosefta Mishnah-Tosefta Mishnah-Tosefta Mishnah-Tosefta

Berakhot Berakhot Berakhot Berakhot Berakhot Berakhot Berakhot Berakhot Berakhot

Chapter Chapter Chapter Chapter Chapter Chapter Chapter Chapter Chapter

One .................................. Two ................................ Three .............................. Four ................................ Five .................................. Six .................................... Seven .............................. Eight ................................ Nine ................................

437 455 464 474 487 499 523 533 543

The Relationship of Mishnah to T osefta Berakhot ................ Theological Mterword to the Mishnah-Tosefta Berakhot Jacob Neusner

563 575

EPILOGUE

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CONTENTS

Vll

PART Two MISHNAH-TOSEFTA PEAH Roger Brooks Acknowledgments ........ .. .. .. .. .. .. .................................... .. .. .... ............ 583 Preface .............................................................................................. 585 INTRODUCTION Introduction .... ................................ .... .. ..................... .. .. .. .. .. .. .. .. . Abbreviations and Bibliography .... ............................. .... .. .........

589 625

TExT AND CoMMENTARY Mishnah-Tosefta Peah Mishnah-Tosefta Peah Mishnah-Tosefta Peah Mishnah-Tosefta Peah Mishnah-Tosefta Peah Mishnah-Tosefta Peah Mishnah-Tosefta Peah Mishnah-Tosefta Peah

635 651 662 675 695 714 741 761

Chapter Chapter Chapter Chapter Chapter Chapter Chapter Chapter

One ........................................ Two ........................................ Three ...................................... Four ........................................ Five ........................................ Six .... .. .. .. .. .. .... .. ................... .. . Seven ...................................... Eight ......................................

EPILOGUE Theological Mterword to the Mishnah-Tosefta Peah Jacob Neusner

789

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Vlll

Volume Two

PART THREE

MISHNAH-TOSEFTA DEMAI Richard S. Sarason Preface ..............................................................................................

803

INTRODUCTION

Introduction ................................................................................ 809 Abbreviations and Bibliography .. .. .. ......... .. .... .. .. ....... .. .. ..... ....... 832 TEXT AND COMMENTARY

Mishnah-Tosefta Mishnah-Tosefta Mishnah-Tosefta Mishnah-Tosefta Mishnah-Tosefta Mishnah-Tosefta Mishnah-Tosefta

Demai Demai Demai Demai Demai Demai Demai

Chapter Chapter Chapter Chapter Chapter Chapter Chapter

One .................................... 843 Two .................................... 886 Three .................................. 934 Four .................................... 969 Five .................................... 984 Six ...................................... 1020 Seven .................................. 1058

EPILOGUE

Theological Mterword to the Mishnah-Tosefta Demai .......... 1093 Jacob Neusner

PART FouR

MISHNAH-TOSEFTA KILAYIM Iroing Mandelbaum Preface

1107

INTRODUCTION

Introduction ................................................................................ 1113 Abbreviations and Bibliography ............................................... . 1138 TExT AND CoMMENTARY

Mishnah-Tosefta Kilayim Chapter One Mishnah-Tosefta Kilayim Chapter Two

1149 1205

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CONTENTS

Mishnah-Tosefta Mishnah-Tosefta Mishnah-Tosefta Mishnah-Tosefta Mishnah-Tosefta Mishnah-Tosefta Mishnah-Tosefta

Kilayim Kilayim Kilayim Kilayim Kilayim Kilayim Kilayim

Chapter Chapter Chapter Chapter Chapter Chapter Chapter

IX

Three .............................. Four .................................. Five .................................. Six .................................... Seven ................................ Eight ................................ Nine ................................

1258 1295 1317 1357 1388 1414 1448

EPILOGUE

Theological Mterword to the Mishnah-Tosefta Kilayim ........ 1487 Jacob Neusner

PART FIVE

MISHNAH-TOSEFTA SHEBIIT Louis E. Newman Acknowledgments ................. ......................................................... 1495 Preface ............................................................................................ l 49 7 INTRODUCTION

Introduction .................. ................................................... .. ......... 150 l Abbreviations and Bibliography ................................................ 1532 TEXT AND COMMENTARY

Mishnah-Tosefta Mishnah-Tosefta Mishnah-Tosefta Mishnah-Tosefta Mishnah-Tosefta Mishnah-Tosefta Mishnah-Tosefta Mishnah-Tosefta Mishnah-Tosefta Mishnah-Tosefta

Shebiit Shebiit Shebiit Shebiit Shebiit Shebiit Shebiit Shebiit Shebiit Shebiit

Chapter Chapter Chapter Chapter Chapter Chapter Chapter Chapter Chapter Chapter

One .................................... Two .................................... Three ................................ Four .................................. Five .................................... Six ...................................... Seven ................................ Eight .................................. Nine .................................. Ten ....................................

1541 1557 1587 1609 1631 1645 1666 1684 1717 1743

EPILOGUE

Theological Mterword to the Mishnah-Tosefta Shebiit Jacob Neusner

........ 1765

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X

Volume Three

PART Six

MISHNAH-TOSEFTA TERUMOT Alan]. Avery-Peck Preface

1779

INTRODUCTION

Introduction ................................................................................ 1785 Abbreviations and Bibliography ... .. ......... .. .. .. .. .. ... .. .. .. .. ..... ........ 1815 TExT AND CoMMENTARY

Mishnah-Tosefta Mishnah-Tosefta Mishnah-Tosefta Mishnah-Tosefta Mishnah-Tosefta Mishnah-Tosefta Mishnah-Tosefta Mishnah-Tosefta Mishnah-Tosefta Mishnah-Tosefta Mishnah-Tosefta

Terumot Terumot Terumot Terumot Terumot Terumot Terumot Terumot Terumot Terumot Terumot

Chapter Chapter Chapter Chapter Chapter Chapter Chapter Chapter Chapter Chapter Chapter

One ................................ Two ................................ Three .............................. Four ................................ Five ................................ Six .................................. Seven .............................. Eight .............................. Nine ................................ Ten ................................ Eleven ............................

1823 1876 1895 1926 1961 1985 2004 2017 2041 2055 2086

EPILOGUE

Theological Mterword to the Mishnah-Tosefta Terumot ...... 2119 Jacob Neusner

PART SEVEN

MISHNAH-TOSEFTA MAASEROT Martin Jqffee Preface

2133

INTRODUCTION

Introduction ................. ..... .. .. .. ....... ......... .. .. ................ .. .. ... ......... 2139 Abbreviations and Bibliography ................................................ 216 7 Jacob Neusner - 978-90-47-41637-1 Downloaded from Brill.com02/08/2023 11:54:33AM via Universite degli Studi di Milano

CONTENTS

X1

TExT AND CoMMENTARY

Mishnah-Tosefta Mishnah-Tosefta Mishnah-Tosefta Mishnah-Tosefta Mishnah-Tosefta

Maaserot Maaserot Maaserot Maaserot Maaserot

Chapter Chapter Chapter Chapter Chapter

One ................................ Two ................................ Three ............................ Four .............................. Five ................................

2177 2222 2251 2289 2313

EPILOGUE

Theological Afterword to the Mishnah-Tosefta Maaserot Jacob Neusner

.... 2341

PART EIGHT

MISHNAH-TOSEFTA MAASER SHENI Peter]. Haas Preface

2355

INTRODUCTION

Introduction ..................... .... .. .. ............ .. .... .... .. .. .. .... .. ................. 2361 Abbreviations and Bibliography ................................................ 2373 TEXT AND COMMENTARY

Mishnah-Tosefta Mishnah-Tosefta Mishnah-Tosefta Mishnah-Tosefta Mishnah-Tosefta

Maaser Maaser Maaser Maaser Maaser

Sheni Sheni Sheni Sheni Sheni

Chapter Chapter Chapter Chapter Chapter

One ........................ Two ........................ Three ...................... Four ........................ Five ........................

2379 2403 2436 2470 2521

EPILOGUE

Theological Afterword to the Mishnah-Tosefta Maaser Sheni ...................................................................................... 2555 Jacob Neusner

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Xll

PART NINE

MISHNAH-TOSEFTA HALLAH Avraham Havivi Tzvee ;:_ahavy INTRODUCTION

Introduction ..................... ............... ........... ................... ....... ....... 25 71 Jacob Neusner Avraham Havivi TEXT AND COMMENTARY

Mishnah-Tosefta Avraham Havivi Mishnah-Tosefta Tzvee Zahavy Mishnah-Tosefta Tzvee Zahavy Mishnah-Tosefta Tzvee Zahavy

Hallah Chapter One

2579

Hallah Chapter Two

2601

Hallah Chapter Three

2607

Hallah Chapter Four

2615

EPILOGUE

Theological Mterword to the Mishnah-Tosefta Hallah .......... 2631 Jacob Neusner

PART TEN

MISHNAH-TOSEFTA 'ORLAH Howard Essner Alan J. Avery-Peck, Editor INTRODUCTION

Introduction Howard Essner

2645

TEXT AND COMMENTARY

Mishnah-Tosefta 'Orlah Chapter One Howard Essner Mishnah-Tosefta 'Orlah Chapter Two Howard Essner

2651 2668

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Xlll

Mishnah-Tosefta 'Orlah Chapter Three Howard Essner

2683

EPILOGUE

Theological Mterword to the Mishnah-Tosefta 'Orlah .......... 2695 Jacob Neusner

PART ELEVEN

MISHNAH-TOSEFTA BIKKURIM Margaret Moers Wenig David Weiner Alan ]. Avery-Peck, Editor INTRODUCTION

Introduction ................. .. .. .. .. .... ........ ...... .. .... .. .. .. ..................... .... 2709 Margaret Moers Wenig TExT AND CoMMENTARY

Mishnah-Tosefta Margaret Moers Mishnah-Tosefta Margaret Moers Mishnah-Tosefta David Weiner

Bikkurim Chapter One Wenig Bikkurim Chapter Two Wenig Bikkurim Chapter Three

2719 2736 2754

EPILOGUE

Theological Mterword to the Mishnah-Tosefta Bikkurim ...... 2771 Jacob Neusner Index ................................................................................................ 2777

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EDITOR'S PREFACE jACOB NEUSNER

This project presents in three volumes the Mishnah's and the Tosefta's first division, Zera'im, Agriculture, together with a systematic history of the law of Zera'im in the Mishnah. The division is organized in eleven topical tractates. To the exposition of the Halakhah on the chosen topic, the Mishnah-tractates are primary but are complemented by the Tosefta's presentation of its collection of glosses of the Mishnah's law and supplements to that law. The project now completes my History qfthe Mishnaic Law of 1974-1985, which worked on the second through the sixth divisions of the Mishnah and the Tosefta. The Mishnah's and the Tosefta's tractates are given in English translation. The presentation in each case encompasses an introduction, a form-analytical translation and commentary, a systematic integration of the Tosefta's compositions into the Mishnah's laws, an explanation of the details of the law, and an inquiry into how the Halakhah of the Mishnah and that of the Tosefta intersect, item by item. The work on each tractate, except for Berakhot, began in my graduate seminar at Brown University and was published as a doctoral dissertation under my supervision. Berakhot, by Professor Tzvee Zahavy, and the systematic recapitulation, A History qf the Mishnaic La:w qf Agri£ulture, by Professor Alan ]. Avery-Peck, represent independent scholarship. The treatment of Hallah, 'Orlah, and Bikkurim began in the same seminar as MA theses. Avraham Havivi translated all of MishnahTosefta Hallah and wrote the commentary to Chapter One. Tractate Hallah Chapters Two through Four are briefly commented on by Professor Zahavy. Rabbi Maggie Moers Wenig checked her work on Bikkurim. To each tractate, I have added a theological afterword, discussing how the Halakhah on a given topic has realized in patterns of behavior a component of the Rabbinic theology that encompasses the entirety of the Halakhah. The plan of the whole is as follows: The lilw qf Agriculture in the Mishnalz and the Tosifta. Translation, Commentary, Theology.

Leiden, 200 5: Brill.

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EDITOR'S PREFACE

XVI

VoLUME ONE: A HisTORY oF PEAH

A History

if the Mishnaic

THE

Law

MisHNAIC LAw OF AGRICULTURE, BERAKHOT,

if Agriculture.

By Alan J. Avery-Peck.

1. Berakhot. Translation and commentary by Tzvee Zahavy.

2. Peah. Translation and commentary by Roger Brooks. VoLUME Two: DEMAI, K!LAYIM, and SHEBIIT

3. Demai. Translation and commentary by Richard Sarason. 4. Kilayim. Translation and commentary by Irving Mandelbaum. 5. Shebiit. Translation and commentary by Louis Newman. VoLUME THREE: TERUMOT, MAAsEROT, MAAsER SHENI, HALLAH, 'ORLAH, and BIKKURIM 6. 7. 8. 9.

Terumot. Translation and commentary by Alan J. Avery-Peck. Maaserot. Translation and commentary by Martin Jaffee. Maaser Sheni. Translation and commentary by Peter J. Haas. Hallah. Translation by Avraham Havivi. Hallah Commentary by Avraham

Havivi (Chapter One) and Tzvee Zahavy (Chapters Two through Four). 10. 'Orlah, by Howard Essner. Edited by Alan J. Avery-Peck. 11. Bikkurim. Translation and commentary by Maggie Moers Wenig, and David Weiner. Edited by Alan J. Avery-Peck. The remainder of the Mishnah and the Tosefta appear in the following:

A History

if the Mishnaic

Law

if Appointed

Times. Leiden, Brill: 1981-1983. 1-V.

I. Shabbat. Translation and Explanation. II. Erubin, Pesahim. Translation and Explanation. III. Sheqalim, Yoma, Sukkah. Translation and Explanation. IV. Besah, Rosh Hashanah, Taanit, Megillah, Moed Qgtan, Hagigah. Translation and Explanation. V. The Mishnaic System if Appointed Times. A History

if the

Mishnaic Law

if Women.

Leiden, Brill: 1979-1980. 1-V.

I. Yebamot. Translation and Explanation. II. Ketubot. Translation and Explanation. III. Nedarim, Na;:,ir. Translation and Explanation. IV. Sotah, Gitlin, Qiddushin. Translation and Explanation. V. The Mishnaic System if Women.

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EDITOR'S PREFACE

XVll

A History qf the Mishnaic Law qf Damages. Leiden, Brill: 1983-1985. 1-V. I. II. III. IV. V.

Baba Qgmma. Translation and Explanation. Baba Mesia. Translation and Explanation. Baba Batra, Sanhedrin, Makkot. Translation and Explanation. Shebuot, Ed!J:'Yyot, Abodah ,Zarah, Abot, Horayyot. Translation and Explanation. 7he Mishnaic System qf Damages.

A History qf the Mishnaic Law qf Hofy 7hings. Leiden, Brill: 1979. I-VI. I. II. III. IV. V. VI.

,Zebahim. Translation and Explanation. Menahot. Translation and Explanation. Hullin, Beklwrot. Translation and Explanation. Arakhin, Temurah. Translation and Explanation. Keritot, Meilah, Tamid, Middot, Qjnnim. Translation and Explanation. 7he Mishnaic System qf Sacrifice and Sanctuary.

A History qf the Mishnaic Law qf Purities. Leiden, Brill: 1974-1977. I-XXII. I. II. III. IV.

v.

VI. VII. VIII. IX. X. XI.

XII. XIII. XIV. XV. XVI. XVII. XVIII. XIX. XX. XXI. XXII.

Kelim. Chapters One through Eleven. 1974. Kelim. Chapters Twelve through 7hirty. 1974. Kelim. Literary and Historical Problems. 1974. Ohalot. Commentary. 1975. Ohalot. Literary and Historical Problems. 197 5. Negaim. Mishnah- Tosifta. 1975. Negaim. Sijra. 1975. Negaim. Literary and Historical Problems. 1975. Parah. Commentary. 197 6. Parah. Literary and Historical Problems. 1976. Tohorot. Commentary. 1976. Tohorot. Literary and Historical Problems. 1976. Miqvaot. Commentary. 1976. Miqvaot. Literary and Historical Problems. 1976. Niddah. Commentary. 1976. Niddah. Literary and Historical Problems. 1976. Makhshirin. 1977. ,Zabim. 1977. Tebul Yom. Yadayim. 1977. Uqsin. Cumulative Index, Parts I-XX. 1977. 7he Redaction and Formulation qf the Order qf Purities in the Mishnah and Tosifta. 7he Mishnaic System qf Uncleanness. Its Context and History.

The principal methodological innovations are exposed in the Sixth division, Purities, which was the first to be systematically set forth. Some

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XVlll

EDITOR'S PREFACE

of the later divisions, the Fourth and the Fifth in particular, are presented in abbreviated form, in the theory that students can reconstruct the main results out of the brief annotations that summarized the exegetical thought-processes and their consequences. Those interested in a complete statement of method will find it implicit in the Sixth division's tractates. That is appropriate, since the tractates of Purities cover the most abstruse and complex law, resting on the deepest foundations of thought and theory in the entire complex of the Rabbinic Halakhah. The corresponding Y erushalmi tractates in English are presented in 7he Talmud qf the Land qf Israel. A Preliminary Translation and Explanation. Chicago: The University of Chicago Press: 1982-1993. I am grateful to Bard College for paying the costs of copying the dissertations and to the authors of the several dissertations for reviewing their original drafts and revising them as required. I express my thanks to all for taking time out of their schedules to return to work they did twenty years ago. What was especially gratifying is that they did the rechecking promptly and with good will. I am gratified that the project is now complete; the Mishnah and the T osefta in their relationship are fully exposed in detail, beginning to end. Those documents define the Halakhah of formative Judaism. The two Talmuds and the Tannaite Midrash-compilations devoted to the Halakhah form massive commentaries to some of the tractates of the Mishnah and the Tosefta. The basic code is now accessible in full, all six divisions of the Halakhah now systematically expounded. Jacob Neusner Research Professor of Theology Bard College Annandale-on-Hudson, New York 12504 N [email protected]

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CONTRIBUTORS

Editor Jacob Neusner Bard College Alan]. Avery-Peck Holy Cross College

Martin Jaffee University qf Washington

Tzvee Zahavy Farleigh Dickinson University

Peter Haas Case Western Reserve University

Roger Brooks Connecticut College

Avraham Havivi University qf Judaism

Richard S. Sarason Hebrew Union College) Jewish Institute qf Religion

Howard Essner

Irving Mandelbaum Jewish Studies Scholar

Margaret Moers Wenig Hebrew Union College) Jewish Institute qf Religion

t David

Weiner

Louis E. Newman Carleton College

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TRANSLITERATIONS

'?

~

b

J

,

g d h w

i1

z

n

h.

Cl

1

1

y k

,:J

CJ

,a

1 ,J 0

m

- n - s

J.)

p

~ ,5:l

r '~

,

,!

p iD

n

q -

r

f,

s

Transliterations represent the consonantal structure of the Hebrew word, with no attempt made to vocalize. We do not distinguish between the spirantized and the non-spirantized forms of b, g, d, k, p, and t. Verbal roots are indicated by capitalization, e.g., SMR. When on occasiOn a word is vocalized, the following notation is used:

a

= qame,2,

e = ,!ere-yod

patah.

e = ,!ere, segol, vocal fewac i = h.iriq o = h.olem, holem h.aser, qame,2 qatan u = furuq, qubbU,!

Quiescent fewac is not represented. Occasionally I use i for y when the latter serves as a mater lectionis. Dages forte generally is indicated by a doubling of the consonant. Proper names and place names are given in their anglicized form when that form is common. Otherwise they are transliterated as above.

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HISTORY OF THE MISHNAIC LAW OF AGRICULTURE

ALAN].

AVERY-PECK

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PREFACE

The Mishnaic Division of Agriculture presents the early rabbis' sustained consideration of a theological issue of central concern to the nascent rabbinic movement. The problem concerns how Israelites are to maintain and implement laws that derive from the biblical understanding of a mutual relationship between God and the people of Israel. The rabbis, that is, inherited Scripture's perspective that the land of Israel is a special possession of God, given to the Israelite nation so that the people might grow food for sustenance. Since God owns the land and through it provides for the nation, a share of the land's crops must be paid back to God. This payment, in the form of tithes and other agricultural offerings, is made through the Temple's officials and others who have a special claim for divine help. The same notion of God's ownership of the land explains Scripture's insistence that the land be used only in ways commensurate with the holiness of its owner. The biblical agricultural laws thus focus upon the idea of God as master of the land of Israel and of the Temple priests and Levites as God's appointed representatives on earth. Yet Mishnah's rabbis live in a period in which the outward signs of God's rule over and care for the people and land of Israel no longer exist and in which the priesthood itself has lost its cultic function. For, in 70 C.E., the Temple was destroyed and Israelites lost control over the land. Then, in the war of 133-135, their messianic attempt to regain sovereignty through military might failed, leaving portions of the land burned and barely capable of producing food for the people. In light of this, the validity of Scripture's claims and the importance of its rules could hardly be self-evident. In responding to this theological problem, the Division of Agriculture represents one central facet of the program of rectification construed by the Mishnah's authorities. It expresses the meaning the agricultural requirements are to have in the time of Mishnah's farmers. The division's first claim is simply that the rules legislated by Scripture continue to be in force over the people of Israel. The rabbis detail in specific terms how Israelites are to plant, harvest and eat the produce of the land of Israel, so as to carry out their part of the original agreement with God. By taking this approach, the early rabbis claim that,

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despite what the events of history seem to indicate, God still owns the land of Israel and through it takes special care of the Israelite nation. Only in light of these facts should Scripture's prohibitions and tithing requirements still have effect. In the division before us, however, the Mishnah's rabbis do more than rehearse Scripture's agricultural restrictions and tithing laws. For, as we shall see, their outwardly conservative approach masks the recognition that things indeed have changed since the time when the Temple stood. The rabbis choose this division as a context for speaking about specific problems brought about by the destruction of the Temple. These problems concern the mode of sanctification to apply within the Israelite world now that the Temple-cult no longer exists. In light of this larger problem, rabbinic consideration of the topic of agriculture focuses upon the fact that, because of the land's divine ownership, the crops it produces are capable of sanctification. Mishnaic treatment of the agricultural law therefore acknowledges that, in planting, Israelites come into contact with and control holiness. In this, their powers and responsibilities parallel those of the priests who once ministered at the altar of the Jerusalem-Temple. Speaking in the period after the destruction of the Temple, the Mishnaic Division of Agriculture thus describes the rabbinic understanding of the relationship between the people of Israel and their God, as that relationship is formalized through the Israelites' treatment of their holy land and their handling of the produce that derives from it. The point of the division is that, even though the Temple has been destroyed, holiness still abides within the Israelite nation. Whereas once it was controlled by priests who ministered at the altar, now it is manipulated by common Israelites who assume the responsibility to grow and consume food in accordance with God's law. With the Temple destroyed and the land defiled, Israelites themselves become the symbol of the continuing presence of God and of God's blessings upon the land. In granting these powers to Israelites, the Mishnah's authorities suggest an approach to the issue of sanctification appropriate to their own time and unlike that of any prior Judaic thinking. This study sets out to evaluate this rabbinic theology of sanctification first of all by delineating the intellectual history of the Mishnaic Division of Agriculture. It outlines, that is to say, which of the Mishnah's rules derive from early in the development of the law and which come from later periods. By isolating the state of the law in each of the Mishnah's major periods of development, we can recognize the evolving concerns

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of the early rabbinic movement and can determine the meaning that the agricultural law had for those who, in the first centuries, legislated concerning it. The meaning is drawn along two grids: 1. The Mishnah is the end product of approximately two hundred years of deliberation among early rabbinic authorities. The Mishnah therefore does not contain a single monolithic perspective upon the proper implementation-let alone the purpose and meaning-of the agricultural law. Later authorities provided the systematic framework within which the earlier materials they chose to preserve are to be interpreted. Even so, as this study will show, we still have access to the larger legal perspectives of those earlier generations of authorities. In detailing the particular contributions and understandings of authorities in each of the major periods in the development of the law, this study allows evaluation of the intellectual underpinnings and development of nascent rabbinic Judaism. 2. Comparison of the ideas of the several generations of Mishnaic authorities indicates that, while we have evidence of the changing perspectives of each generation of authorities, the Mishnah's final formulators and redactors have included in this division a quite unitary set of issues and legal concerns. The Division of Agriculture is redacted as a sustained essay about the particular issue I have pointed out, that of sanctification. Along with delineating, to the extent possible, the perspectives of each generation of authorities, I therefore clarify the meaning and intent of the Division of Agriculture as a redacted whole. This study thus has two goals, determination of the contribution to the Division of Agriculture of each generation of Mishnaic authorities and evaluation of the significance of the division as a completed whole speaking in the second century. These goals are met, first, by a ruleby-rule analysis of the division's laws. Found in Chapters Two through Eleven, this analysis 1) indicates the legal or conceptual foundation that supports each law and 2) determines each legal statement's historical provenance. With this information in hand I begin interpretation of each stratum in the development of the law and of the history of the division's law as a whole. The former evaluation appears in Chapters Twelve, Thirteen and Fourteen, which summarize the state of the law before 70 and in Yavnean and Ushan times, and which suggest the meaning of each period's law within its own historical circumstances. The latter is accomplished in the concluding chapter, which suggests

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the implications of the historical development of the law for our understanding of nascent rabbinic Judaism. In order to allow informed reading of the law-by-law analyses of each tractate, found in the long middle section of this book, the first chapter describes the meaning of the Division of Agriculture as a redacted whole. It does this by isolating the focus of each of the division's tractates and, on this basis, by ascertaining the legal and theological point of the complete division. Better to evaluate the point of the division, this first chapter also relates the law of the Division of Agriculture to its Scriptural foundations and compares the focus of this rabbinic writing with that of other contemporary writing on the topic of agriculture. The introduction describes in detail the purpose and methods of this study and indicates its relationship to and dependence upon existing scholarship on the Mishnah as a whole and the Division of Agriculture in particular. Professor Martin Jaffee, of the University of Virginia, patiently read and extensively commented on the entire manuscript. Marty and I were together when, as students at the Hebrew University and then at Brown University, we worked on commentaries to individual tractates of the Division of Agriculture. In conversations as fellow graduate students and since then by telephone, in letters and at conferences, Marty has constantly contributed to this project. I alone am responsible for this book's shortcomings. But I thank Martin Jaffee for his help, which has made this study much better than it otherwise could have been. Professor Gary Porton, of the University of Illinois, offered intellectual guidance and moral support during the years in which this study was researched and written. His encouragement and advice are constant sources of strength, his friendship always a source of joy. For these things I thank him. This book is dated on the occasion of the swearing in of my wife, Lisa J. Avery-Peck, to the Louisiana State Bar. It thus marks for both of us the conclusion of several years of hopes, aspirations and arduous work, and signifies the beginning, of course, of new adventures. I offer Lisa my gratitude for her willingness to share these things with me. For a decade Professor Jacob Neusner has guided and taught me, selflessly given his time to me, and, as an added gift, has offered me his warm and nurturing friendship. I can thank him only by giving back in a small way that which in important ways is his to begin with.

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Dedication to him of this book thanks Jacob Neusner for all that he has done for me through his generosity as a teacher and friend and through his example as a scholar and a mensch. Alan J. Avery-Peck New Orleans, Louisiana October 5, 1984 Erev Yom Kippur, 5745

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HISTORY OF THE MISHNAIC LAW OF AGRICULTURE INTRODUCTION

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INTRODUCTION

This volume focuses upon a narrowly historical question. Examining the Mishnaic Division of Agriculture, it asks which of the Mishnah's rules and ideas derive from early stages of rabbinic thinking about the topic of agriculture and which rules come from later periods in the formation of Mishnaic law. This study thus works to describe the historical development of the ideas contained in one of the Mishnah's six major divisions. It identifies the theoretical underpinnings of the Mishnaic law of agriculture, focuses upon the intermediate stages in which those foundations were developed and, finally, describes how those ideas were put to use in the creation of the completed document before us. The purpose of these analyses is to understand the meaning of the Mishnah's law for those who, in the first centuries, created it. As we shall see, this law is not primarily the end product of long centuries during which agricultural practices and customs evolved within the Israelite nation. The Division of Agriculture, rather, is the creation of several small groups of individuals, organized in academies, who began working on this topic shortly before the destruction of the JerusalemTemple in 70 C.E. and who completed their deliberations in the late second century. This means that in order to understand the laws contained in this division, we must isolate the contributions of these individual academies. In this way we hope clearly to understand the perspectives and attitudes of the founders of rabbinic Judaism. Isolating the ideas of each individual generation of Mishnaic authorities allows us to carry out two important steps in interpreting the division before us: l. Delineating each generation's approach to the law of agriculture facilitates recognition of that generation's understanding of the relationship between Israel and its God. For in the view of the Mishnah's rabbis, that relationship is formalized in the Israelites' fulfillment of special obligations that revolve around their planting, harvesting and consuming the produce of the land of Israel. By identifying the attitude of each generation of authorities we may, further, interpret their thought in light of the particular historical environment in which they carried out their legal deliberations. In this respect, this

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volume intends to contribute to our understanding of the social and political, as well as the theological, roots of rabbinic Judaism. 2. Isolating the ideas of each generation of authorities does more than distinguish the contributions to the Mishnaic Division of Agriculture of the different rabbinic academies. It further allows us to point out the larger agendum of issues that, as we shall see, is established early in the formation of the law and that is systematically explored in each of the strata of the law before us. As a result of the historical analysis carried out here, we therefore derive a clear picture of the concerns and meaning of the Division of Agriculture as a whole while at the same time delineating the history of ideas that brought it to the shape in which it stands before us today. A characterization of each generation's thought appears at the end of this volume, in chapters devoted to the state of the law before 70, in Yavneh and during Ushan times. The significance of the conceptual history of the law, viewed whole, then is examined in the final conclusions. These concluding studies, however, depend upon detailed analyses that allow us to discern the historical development of the law contained in this division. These are found in the long middle section of this book, in which I take up in turn each of the tractates in this division so as to ascertain the historical provenance of the laws it contains. Let me now describe the method by which this historical evaluation is carried out. I begin by dividing each tractate into its constituent thematic unitsagglomerates of law concerning a single topic or expressing a single legal theory. 1 Within these units, I list separately the rules and legal statements assigned to each of the three identifiable periods of early rabbinic law, before 70 and the periods of Yavneh and Usha. 2 This listing provides a rough chronology of the Mishnah's law and there-

1 My delineation of the thematic units of the tractates of the Division of Agriculture makes use of recent commentaries to these tractates, referred to later in this introduction. These have identified the cogent thematic organization of the tractates, showing them to be essays that develop a specific line of inquiry. See [Avery-]Peck, pp. 7-21; Brooks, pp. 19-31; Essner, pp. 106-107; Haas, pp. 3-8; Havivi, pp. 151-153; Jaffee, pp. 6-13; Mandelbaum, pp. 5-17; Newman, pp. 22-30; Sarason, pp. 10-18; and Wenig, pp. 50-52. 2 In this volume, discrete legal statements are cited by I) title of tractate, 2) numeric designation of thematic unit, 3) letter designation of the period to which the rule is assigned, and 4) designation of chapter and paragraph within Mishnah. Designation

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fore allows us initially to characterize the main issues and understandings of each period. Two questions attract our attention at this point. The important one concerns how to ascertain that what is attributed to a specific authority actually derives from the historical period in which he was active. The second question concerns the dating of the Mishnah's anonymous laws. To verify a statement's provenance in a particular period I begin by delineating the legal theory that stands behind the statement. 3 In this way I can discern the logical or factual dependence of that statement upon other laws assigned either to its same period or to other generations of authorities. The point is to see, for instance, whether or not what is assigned to a Yavnean 1) is consistent with other Yavnean opinions, 2) takes up ideas assigned to individuals who lived before 70 and/ or 3) serves as a basis for laws attributed to Ushans. If the statement under consideration meets one or more of these criteria, there is good reason to assume that it indeed derives from the middle, Y avnean, stratum in the development of the law. If, by contrast, what is assigned to an authority known to have been active before 70, for instance, assumes facts or legal theories that, while unknown to Yavneans, are commonplace at Usha, we must assume that the attribution is pseudepigraphic. The statement presumably derives from U shan times, along with the other laws that share its thematic concerns or conceptual perspective. One alternative to the assumptions based here upon the logical connections between laws in the Mishnah's several strata may, I believe, be quickly rejected. This is to assume that the final generation of Mishnaic authorities created the whole elaborate system of law before us, assigning to the names of past generations ideas representing the logical steps towards the final approach to the law that they established. This alternative explanation is shown to be very unlikely by the consistent pattern of legal growth evidenced in this division and in the rest of the Mishnah. It is difficult to believe that the intricate legal of historical provenance is as follows: A = Before 70; B = Yavneh; C = Usha; D = Unassigned (i.e., anonymous). Kil., iv.C.8:3 thus refers to Mishnah Tractate Kilaim 8:3, which is an Ushan rule found in the tractate's fourth thematic unit (on diverse kinds of animals, as the Table of Contents indicates). 3 These discussions are formatted in two columns. The left column contains a restatement of the law under consideration. In the right hand column I indicate the theoretical basis for the law and specifY the grounds for assigning it to the particular period in the development of the tractate's rules.

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developments depicted here are all the result of the calculated Ushan and post-Ushan use of pseudepigraphy. 4 It is unlikely that the final generation of Mishnaic authorities invented the whole weaving of law found in the Mishnah. Still, the basis for my claim to interpret the significance of the law for each generation of Mishnaic masters must be clearly explained. This is for two reasons: 1. While the laws in the division derive from over a period of close to two hundred years, the literary character of the division as a whole results from the work of only a single generation of Mishnaic formulators. This is clear from the fact that all of the laws before us are phrased in a small number of highly stylized and formalized linguistic patterns. These literary conventions appear in the anonymous rules and in the mouths of the division's named authorities, early and late. The work of formulation presumably was carried out at a single time, by those rabbinic masters, primarily Ushans, who represent the final generation of cited authorities. 5 2. The individuals who gave linguistic expression to antecedent materials also chose which of those available laws would be preserved in the Mishnah. The Y avnean and pre-Yavnean materials before us thus have not been selected for transmission by their own authors, in conformity with their particular theory of what must be said on the topic of agriculture. Rather, they were saved by later redactors who chose to use specific materials in light of their own conceptions of what the Division of Agriculture should and should not represent. The selection and reformulation of antecedent materials by later authorities means that the Division of Agriculture, along with the Mishnah as a whole, is a product of and expresses the meaning intended by its final formulators and redactors. This fact limits what we can know about earlier authorities' thinking. Since we do not have access to all that Yavneans, for instance, said, or to how they would have said it, we cannot claim to isolate and interpret a Yavnean system of agricultural law. This does not, however, preclude interpretation of the Yavnean legal perspective in general and, through evaluation of that perspec-

4 This idea is formulated along the same lines by Neusner, Purities, Part XXII, p. 271, note l. 5 See Neusner, Purities, Part XXI, in particular, pp. 234-46 and 298-302.

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tive, delineation of the significance for Yavneans of their legal deliberations. This is as follows. The Yavnean and pre-Yavnean materials in this division all reflect a single theory of law, a theory quite distinct from that which stands behind the division's Ushan materials. This study therefore moves behind the larger framework of the division as a redacted whole, so as to take seriously the legal attitude that early rules consistently portray. I do not claim to know all that the earlier authorities said, and I certainly cannot envision how the Division of Agriculture would have looked had they, instead of later authorities, formulated and redacted it. Yet these early masters' attitude towards the law, revealed in the sizable body of material that has been preserved, constitutes important evidence for how the first generations of Mishnah's authorities imagined their role as legislators. This attitude therefore serves to make manifest their understanding of how the covenant relationship between God and the people of Israel should, through human legal activity, unfold. To summarize: The method employed here both indicates the likelihood that a legal idea derives from the period of the authority to which it is assigned and provides an initial characterization of the legal theories of each generation of authorities. In doing this, it isolates the meaning of the Mishnah's materials on two levels: first, for the generation of authorities that created each individual law, and then for those who created of these antecedent materials the document that stands before us today. The approach used here allows me to discern the historical provenance of most of the Division of Agriculture's anonymous statements. These anonymous rules are reviewed after I have evaluated the attributed materials and have drawn a sketch of the state of the law in each period. 6 Comparison with the assigned laws allows determination-on the basis of legal and factual content-of the period from which the anonymous materials must derive. An important result of this analysis is to show that, in the vast majority of cases, the anonymous materials found in the Division of Agriculture are congruent in issue and approach 6 Discussion of the anonymous rules is placed after my consideration of the Ushan materials. This is the case even for the few anonymous rules that are determined to belong in the Yavnean stratum. I have chosen to discuss the anonymous rules of each thematic unit as a corpus so as to make clear the less certain character of their assignment to specific levels in the formation of the law. Placement after the Ushan rules turns out in all events to be appropriate, since the vast majority of the anonymous materials appears to derive from Ushan times or later.

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with the latest attributed laws. Anonymous rules in no case suggest basic premises or facts upon which later legal developments depend. This disproves the still repeated notion of past generations of scholars that at least certain of the Mishnah's anonymous rules contain this document's most ancient ideas. 7 The method employed here allows delineation and verification of the historical development of Mishnaic legal thinking on the topic of agriculture. It must be clear however that this method, which focuses upon the ideational content of the Mishnah's statements, proves only that what is assigned to a particular authority could, or could not, have been said in the period during which that rabbi was active. This method cannot however prove that a statement actually was made by the authority to whom the Mishnah attributes it. While such confirmation would be important in the advancement of rabbinic biography, I envisage no method that would allow proof along these lines. 8 I can only point out the general result of this study, that Yavnean and Ushan materials uniformly meet the test of authentication to which I submit them. This highlights in a general way the viability of the Mishnah's attributions. Only in several cases do the Mishnah's statements fail the test used here. These are rules that, while assigned to the Houses of Hillel and Shammai, assumed to have been active in the period before 70, appear instead to have been created by rabbis working in U shan times. The implications of this pseudepigraphic assigning of laws to early authorities are discussed in Chapter Twelve. This study is limited in one other way that bears mention. My history of the Mishnaic law is detailed in only three major stages, representing, as I have said, the rabbinic masters who lived before 70 and in the academies at Yavneh and Usha. I am not able, however, to propose a finer delineation, showing the development of legal thinking within each of these periods. The reason is that the Mishnah itself does not provide a more detailed discrimination among its materials. All

See, for instance, Jacob Brull, Mabo LaMishnah, p. 34, cited by G. Parton in Neusner, ed., The Modern Study qf the Mishnah, p. 86. The same view, that certain anonymous rules derive from the Second Temple period or earlier, is expressed by Guttman, p. 145, Albeck, Mabo, p. 76, and Urbach, "Mishnah," p. 94. 8 Attempts to identify a specific legal agendum or perspective attached to an authority are complicated by the wide range of issues a single rabbi might discuss in the context of a small number of statements. The common theoretical underpinnings of opinions assigned to authorities from a single period likewise makes it difficult to distinguish the specifics of any rabbi's thought.

J.

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authorities who worked, for instance, at Yavneh engage in conversation with all other rabbis from that same period. The same is the case for the rabbis who worked in Ushan times. The Mishnah's stratification of its authorities into three periods, and the concomitant commonality of ideas within each of these periods, precludes the discerning of finer distinctions in the growth of the Mishnah's agricultural law. 9 The results of the law-by-law evaluation of the tractates are summarized in introductions to each tractate and to its individual thematic units. These introductions serve to describe the tractate as a whole, to point to the aspect of its topic taken up for extended analysis and to indicate the specific legal theory proposed by each generation of authorities to resolve that legal issue. These introductions are placed before the rules they evaluate to allow informed reading of my detailed discussions of those individual laws. After the systematic examination of the Division of Agriculture's law has been carried out, final conclusions are possible. Found at the end of this volume, these are of two types. First, Chapters Twelve, Thirteen and Fourteen systematize what the previous discussions have shown about the state of the law before 70 and in the periods of Y avneh and U sha. These chapters allow us to see what was thought about the agricultural requirements in each of the periods in question. On that basis I point out the legal philosophy developed in each period and move ahead to relate this approach to the law to the particular historical situation in which that generation lived. Second, with evaluations of each of the three stages of the law in hand, I draw conclusions concerning the historical development of rabbinic thinking about the topic of agriculture in general. What do we learn about the Mishnah's rabbis and about the program of nascent rabbinic Judaism from the growing legal agendum of the Division of Agriculture? By answering this question I contribute to our understanding of the Mishnah as a historical document that reveals the philosophy of rabbinic Judaism's earliest authorities. 9 On occasion, a Yavnean will, in dispute with other Yavnean authorities, express an opinion that becomes common only later, in Ushan times. In such cases we see the beginning of the development of later ideas. Yet this does not provide insight into the development of the law at Yavneh, since we are not able to determine exactly when the Yavnean minority opinion developed. A good example of this is at Terumot, iv.B.8: 1-3, where Joshua takes up a legal perspective that becomes normative only later, in Ushan times.

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Intelligent reading of the specifics of the division's laws, discussed in Chapters Two through Eleven, is facilitated by the overview of the system of agriculture as a whole, found in Chapter One. In that Chapter I review the topic and contents of each of the Mishnah's tractates so as to identify the larger program of inquiry to which they contribute. Examination in this same context of the division's Scriptural roots and of contemporary parallels in the Greco-Roman writings on agriculture allow the reader to see clearly the content and focus of the Mishnaic law before us. By this point it should be clear that this study takes seriously the documentary limits of the Mishnah's Division of Agriculture. I assume, that is to say, that the statement the Mishnah's rabbis wished to make concerning the topic of agriculture is made within the literary context of the tractates in this division. I therefore do not refer to laws concerning agriculture found outside of the Mishnaic Division of Agriculture, whether they appear elsewhere in the Mishnah or in later rabbinic documents. Other than the Mishnah itself, the only document to which I refer in the course of this study is the T osefta. The T osefta serves the purposes of this study insofar as its attributions support conclusions concerning the provenance of certain of the Mishnah's laws already derived from an analysis of the Mishnah alone. A large-scale evaluation of the attitudes and legal theories concerning agriculture found in the T osefta~ or the Talmudim~would be an important contribution towards our understanding of the growth of rabbinic Judaism. Such analysis however is beyond the scope of this volume, which claims only to interpret the Mishnaic law of agriculture. This study does not refer to Tractate Berakhot which, while found in the Division of Agriculture, has no apparent substantive or ideational relationship to the other tractates of this division. The question of why Tractate Berakhot, on the liturgical life of the Israelite nation, has been placed in this division, and indeed at the beginning of the Mishnah as a whole, is beyond the scope of this study. The analyses undertaken in this volume depend upon recently published commentaries to each of the tractates of the Division of Agriculture. I refer specifically to the work of R. Brooks (Peah), R. Sarason (Demai), 1. Mandelbaum (Kilaim), L. Newman (Shebiit), M. Jaffee (Maaserot), P. Haas (Maaser Sheni), A. Havivi (Hallah), H. Essner (Orlah), M. Wenig and D. Weiner (Bikkurim) and to my own work on Tractate Terumot. These commentaries are all distinguished from past exegesis of this division by their attention to the theoretical concerns that underlie the

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Mishnah's law and by their insistence that identification of these concerns flow from literary and thematic evaluation of the tractate viewed as an integral whole. These studies thus propose to locate the meaning that the law had for the rabbis who promulgated it, not for the later generations that received and interpreted it in light of their own concerns and needs. 10 By initiating the systematic interpretation of the Mishnah's tractates viewed as literary wholes, and by locating the issues of mind that stand behind the Mishnah's rules and disputes, these studies make possible my own evaluation of the logical relationships among this division's diverse rules. A second intellectual debt must also be acknowledged. I refer to Jacob Neusner's interpretations of the tractates in the Mishnah's other five divisions and to his pioneering studies of the history of the law contained in those other orders. In his studies of the Mishnah, Professor Neusner sets a new agendum for the interpretation of early rabbinic literature. This program of inquiry, to a great extent completed in Professor Neusner' s own scholarship on the Mishnah, calls for evaluation of the historical development and meaning of Mishnaic law. This study takes up the challenge that Professor Neusner's work on Mishnaic law presents, applying to the Division of Agriculture questions and methods that he used in evaluating the Mishnah's other divisions. By carrying out for the Division of Agriculture the type of study that Dr. Neusner conducted for the Mishnah's five other divisions, this volume completes the first rule-by-rule delineation of the historical growth and meaning of all of Mishnaic law. As a result, for the first time, discussions of early rabbinic history have access to the specific legal perspectives of each period of the Mishnah's formation. At the same time, the present volume moves beyond the original agendum of issues proposed by Neusner. He emphasized 1) the question of the veracity of the Mishnah's attributions and of the provenance of the anonymous statements and 2) the meaning of each of the Mishnah's divisions as redacted wholes. Completion of the latter task is marked by his study, Judaism: The Evidence if the Mishnah. His work on the Mishnah's other five divisions has answered the first question, proving the general trustworthiness of all attributions except those to authorities who lived before 70. Neusner likewise has shown that anonymous rules consistently represent the thought of late rabbinic masters. For both of the questions 10 On the theory of exegesis that stand behind these recent commentaries see, in particular, Jaffee, pp. 13-22.

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INTRODUCTION

Neusner posed, this study provides the corresponding evidence of the Division of Agriculture, to which Neusner did not have access. With his studies completed, however, this volume concentrates less upon proof of the historical assignments of the Mishnah's laws and more upon the issue of what the specific developments in Mishnaic legal thinking teach about the formation and early growth of rabbinic Judaism. In particular, in the concluding chapters of this study I examine the historical context for the legal developments of each of the Division of Agriculture's generations of authorities and compare the ideational development of Mishnaic law with the growth of other legal systems. In this way I both take up and carry forward the program of inquiry proposed by Neusner. The debt to past scholarship of any study of the Mishnah obviously goes deeper than studies carried out in the past fifteen years. My use of traditional as well as modern commentaries and other secondary sources is indicated in the bibliography. These references serve in a general way to reflect the continuing dependence of the present generation of students of the rabbinic literature upon past exegesis, including the traditional commentaries published in the margins of standard printings of the Mishnah and the Talmuds and more recent interpretations, published both in traditional and secular contexts. These works of interpretation share the quest for the meaning of the Mishnah's law, providing the set of exegetical potentials from which the historian ultimately must choose. They therefore stand at the base of all historical interpretation and reconstruction.

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ABBREVIATIONS AND BIBLIOGRAPHY

Aberbach Ah. AIbeck Albeck, Mabo Allon Ar. Aruch

[Avery-]Peck, Alan A.Z. b. B.B. Bek. Ber. Bert Bes. Bik. B.M.

B.Q

Brooks

Cato, Agriculture Clark Davies Dem. Dt. Ed. Eissfeldt Epstein, Mabo' Epstein, Mebo' at Erub. Ex. Essner, "Orlah"

Aberbach, Moses, The Roman Jewish-War (66-70 A.D.): Its Origins and Consequences (London, 1966). Ahilot Albeck, H., The Six Orders qf the Mishnah (Hebrew) (Jerusalem and Tel Aviv, 1957). Albeck, H., Mabo LaMishnah (Jerusalem and Tel Aviv, 1959). Allon, G., "On The Social History of Palestine in the Days of the Mishnah" (Hebrew) in Tarbiz:. XXI (1951). Arakhin Kohut, Alexander, ed., Aruch Completum, 8 vols. (Vienna, 1878-1892; second ed., 1926). [Avery-] Peck, Alan, The Priest[y Gift in Mishnah: A Stur!J qf Tractate Terumot (Chico, 1981). Abodah Zarah Babli, Babylonian Talmud, cited by tractate and folio number of ed. Romm (Vilna, 1886); ben, "son of" as in Simeon b. Gamaliel. Baba Batra Bekhorot Berakhot Obadiah b. Abraham of Bertinoro, Mishnah commentary in Romm ed. of Mishnah (Vilna, 1908, and reprints). Besah Bikkurim Baba Mesia Baba Qamma Brooks, Roger, Support for the Poor in the Mishnaic Law qf Agriculture: Tractate Peah (Chico, 1983). Marcus Porcius Cato, On Agriculture, tr. William Davis Hooper [Loeb Classical Library] (London, 1933). Clark, Kenneth W., "Worship in the jerusalem Temple after A.D. 70," in New Testament Studies 6 (July, 1960), pp. 269-280. Davies, W. D., The Territorial Dimension qfJudaism (Berkeley, 1982). Demai Deuteronomy Eduyyot Eissfeldt, Otto, Erstlings und Zehnten im Alten Testament (Leipzig, 1917). Epstein, Jacob Nahum Halevi, Mabo lenosah hammishnah [Prolegomenon to the Text qfthe Mishnah], 2 vols. (Jerusalem and Tel Aviv, 1948, second edition, 1964). Epstein, Jacob Nahum Halevi, Mebo'ot Lesi.frut hatanna'im [Prolegomena to the Tannaitic Literature] ed. Ezra Z. Melamed (Jerusalem and Tel Aviv, 1957). Erubin Exodus Essner, Howard, "Mishnah Tractate 'Orlah: Translation and Commentary," in W. S. Green, ed., Approaches to Ancient Judaism. Vol. III (Chico, 1981 ), pp. I 05- 148.

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22

INTRODUCTION

Feliks, Agriculture

Feliks, Yehudah, Agriculture in Palestine in the Period qf the Mishna and Talmud (Hebrew) (Jerusalem and Tel Aviv, 1963). Feliks, Plant World Feliks, Yehudah, The Plant World qfthe Bible (Hebrew) (Tel Aviv, 1957). Finley Finley, Moses 1., The Ancient Economy (Berkeley, 1973). Frank Frank, Tenney, Economic Survey qf Ancient Rome. Vol. V. Roman Italy and the Empire (Baltimore, 1940). Genesis Gen. Gittin Git. GRA Elijah b. Solomon Zalmon, Mishnah commentary in Romm. ed. of Mishnah. Green, William, The Traditions qf Joshua ben Hananiah (Leiden, Green, Joshua 1981). Green, "Rabbinism" Green, William, "Reading the Writing of Rabbinism," in Journal qf the American Academy qf Religion 51:2, June 1983, pp. 191-206. Guthrie Guthrie, H.H., Jr., "Tithe," in Interpreters Dictionary qf the Bible, vol. 3, pp. 654--655. Guttman Guttman, Alexander, "The Problem of the Anonymous Mishnah," in Hebrew Union College Annual 16, 1941, pp. 137-155. Haas Haas, Peter J., A History qf the Mishnaic Law qf Agriculture: Tractate Maaser Sheni (Chico, 1980). Hag. Hagigah Hal. Hallah Havivi Havivi, Abraham, "Mishnah Hallah Chapter One: Translation and Commentary," in William S. Greened., Approaches to Ancient Judaism. Vol. III (Chico, 1981), pp. 149-184. Hor. Horayot Hul. Hullin Jaffee, Martin, Mishnah's Theology qf Tithing: A Study qf Tractate Jaffee Maaserot (Chico, 1981 ). Jastrow Jastrow, Marcus, A Dictionary qf the Targumim, the Talmud Babli and Yerushalmi, and the Midrashic Literature, 2 vols. (New York, 1895-1903; repr. New York, 1975). The Jewish Encyclopedia, 12 vols. (New York and London, 1901, JE 1906; repr. New York, 1975). Kasovsky, Mishnah Kasovsky, C. Y., Thesaurus Mishnae: Concordantiae verborum etc., 4 vols. (Tel Aviv, 1957, rev. 1967). Kasovsky, Tosifia Kosovsky, C. Y., Thesaurus Thosephthae: Concordantiae verborum etc., 6 vols. (Jerusalem, 1932-1961). Kelim Kel. Keritot Ker. Ketubot Ket. Kilaim Kil. Leviticus Lev. Levine, Lee, "The Causes of 66-70 C.E.," Judaism, XX:2, 1971, Levine pp. 244-248. Lieberman, "Greek" Lieberman, Saul, "How Much Greek in Jewish Palestine?" in Biblical and Other Studies (Brandeis University, Texts and Studies I), pp. 123-141; reprinted in Fischel, H., ed., Essays in Greco-Roman and Related Talmudic Literature (Ktav, 1977), pp. 325-343. Lieberman, Hellenism Lieberman, Saul, Hellenism in Jewish Palestine (New York, 1950). Lieberman, TK Lieberman, Saul, Tosifia Ki-Jshuta: A Comprehensive Commentary on the Tosifia, I. Order Zera'im, 2 vols. (New York, 1955).

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ABBREVIATIONS AND BIBLIOGRAPHY

Lieberman, TZ Low, Flora MacCulloch Maimonides Mak. Makh. Mandelbaum Mantel Me. Meg. Men. Mid. Miq. Morris M.Q MR M.S. MS MS. Naz. Ned. Neg. Nelson

Neusner, Appointed Times Neusner, Damages Neusner, Development Neusner, Elie;:;er Neusner, Holy Things Neusner, Judaism Neusner, Lift Neusner, Modern Stu4J

23

Lieberman, Saul, ed., The Tosifta according to Codex Vienna with Variants .from Codex Erfort, Geni;:;ah MSS. and Editio Princeps, I. The Order qf Zera'im (New York, 1955). Low, Immanuel, Die Flora der Juden, 4 vols. (Vienna and Leipzig, 1926). MacCulloch,]. A., "Tithes" in Encyclopedia qf Religion and Ethics, ed., James Hastings (New York, 1924), vol. XII, pp. 34 7-350. Kitab es-Siraj (Mishnah Commentary); in standard editions of the Mishnah. Makkot Makhshirin Mandelbaum, Irving, A History qf the Mishnaic Law qf Agriculture: Kilayim (Chico, 1982). Mantel, Hugo, "The Causes of the Bar Kokhba Revolt," Jewish Qyarterly Review (1968) LVIII:3, pp. 224-242, LVIII:4, pp. 274-296. Meilah Megillah Menahot Middot Miqvaot Morris, Colin, The Discovery qf the Individual: 1050-1200 (New York, 1972). Moed Qatan Mishnah Rishonah. Ephraim Isaac of Premysla, Mishnah commentary (1882), in standard editions of Mishnah. Maaser Sheni Meleket Shelomoh. Solomon b. Joshua Adeni, Mishnah commentary, in standard editions of Mishnah. manuscript Nazir Nedarim Negaim Nelson, Benjamin, "Eros, Ligas, Nomos, Polis: Their Changing Balances and the Vicissitudes of Communities and Civilizations," in Allan W. Eister, ed., Changing Perspectives in the Scientific Stu4J qf Religion (New York, 1974), pp. 85-111. Neusner, Jacob, A History qf the Mishnaic Law qf Appointed Times, 5 vols. (Leiden, 1981 ). Neusner, Jacob, A History qf the Mishnaic Law qf Damages, 5 vols. (Leiden, 1982). Neusner, Jacob, Development qf a Legend: Studies in the Traditions concerning Yohanan ben Zakkai (Leiden, 1970). Neusner, Jacob, Elie;:;er ben Hyrcanus: The Tradition and the Man, 2 vols. (Leiden, 1973). Neusner, Jacob, A History qf the Mishnaic Law qf Holy Things, 6 vols. (Leiden, 1978-1979). Neusner, Jacob, Judaism: The Evidence qf the Mishnah (Chicago, 1981). Neusner, Jacob, A Lift qf Yohanan ben Zakkai (Leiden, 1962; second edition, completely revised, 1970). Neusner, Jacob, ed., The Modern Stu4J qf the Mishnah (Leiden, 1973).

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INTRODUCTION

Neusner, Pharisees

Neusner, Jacob, The Rabbinic Traditions about the Pharisees bifore 70, 3 vols. (Leiden, 1971 ). Neusner, Piety Neusner, Jacob, From Politics to Piety: The Emergence qf Pharisaic Judaism (Second Edition, Ktav, 1979). Neusner, Purities Neusner, Jacob, A History qf the Mishnaic Law qf Purities, 22 vols. (Leiden, 197 4-1977). Neusner, Women Neusner, Jacob, A History qf the Mishnaic Law qf Women, 5 vols. (Leiden, 1979-1980). Neusner, Tosifta Neusner, Jacob, The Tosifta Translated from the Hebrew, 5 vols. (New York, 1977-1981). Neusner, "Transcendence" Neusner, Jacob, "Transcendence and Worship Through Learning," in Journal qf Riform Judaism 25:2 (1978), pp. 15-29. Newman Newman, Louis, The Sanctity qf the Seventh Year: A Stuc!J qf Mishnah Tractate Shebiit (Chico, 1983). Niddah Nid. Numbers Num. Oppenheimer, Am Ha-Aretz Oppenheimer, Aharon, The Am Ha-Aretz (Leiden, 1977). Oppenheimer, "First Tithe" Oppenheimer, Aharon, "Hajrasat Ma'aser Risho'n: Halakhah lema'aseh bitqufot bayit sheni," in Benjamin De Vries Memorial Volume (Jerusalem, 1968), pp. 970-983. Oppenheimer, Aharon, "Terumot and Ma'aserot," m Oppenheimer, "Terumot" Encyclopedia Judaica, Vol. 15, cols. I 025-1028. Or. Orlah Peah Pe. Pesahim Pes. Porton, Gary G., "The Artificial Dispute: Ishmael and Porton, "Dispute" Aqiba," in Jacob Neusner, ed., Judaism, Christianity and Other Greco-Roman Cults (Leiden, 1975), pp. 18-29. Porton, Gary G., The Traditions qf Rabbi Ishmael, 4 vols. Parton, Ishmael (Leiden, 1976-1980). Primus, Charles, Aqiva's Contribution to the Law qf Zeraim Primus (Leiden, 1977). Qjddushin Qjd. Qjnnim Qjn. Rabbi R. Radding, Charles M., "Evaluation of Medieval Mentalities: Radding A Cognitive-Structural Approach," in The American Historical Review 83:3 (June, 1978), pp. 55 7-597. R.H. Rosh Hashshanah Rostovtzeff, Mikhail, The Social and Economic History qf the Rostovtzeff Hellenistic World, 3 vols. (Oxford, 1941 ). Rouse Rouse, W. H. D., "Tithes (Greek)" in Encyclopedia qf Religion and Ethics, ed., James Hastings (New York, 1924), vol. XII, pp. 350-351. Sacks-H utner The Mishnah with Variant Readings, Order Zera'im, 2 vols.; edited by Nissan Sacks, at the Institute for the Complete Israeli Talmud, Joshua Hutner, director (Jerusalem, 1972-1975). Safrai, S., "The Status of Provincia Judaea after the Safrai, ':Judaea" Destruction of the Second Temple," in Zion XXVII (1962). Safrai, "Sabbatical" Safrai, S., "The Practical Implementation of the Sabbatical Year after the Destruction of the Second Temple," (Hebrew) in Tarbiz XXV-XXVI, 1966.

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ABBREVIATIONS AND BIBLIOGRAPHY

25

Sambursky, S., The Physics qf the Stoics (London, 1959). Sarason, Richard S., A History qf the Mishnaic Law qf Agriculture: A Stuc[y qf Tractate Demai, Part One (Leiden, 1979). Sarason, "Zeraim" Sarason, Richard S., "Mishnah and Scripture: Preliminary Observations on the Law of Tithing in Sedar Zeraim," in W. S. Green, ed., Approaches to Ancient Judaism, Vol. II (Chico, 1980), pp. 81-96. Schafer Schafer, Peter, "The Causes of the Bar Kokhba Revolt," in Jakob Petuchowski and Ezra F1eischer, eds., Studies in Aggadah, Targum and Jewish Liturgy in Memory of Joseph Heinemann (Jerusalem, 1981), pp. 74-94. Schiffman, Sectarian Law Schiffman, Lawrence H., Sectarian Law in the Dead Sea Scrolls (Chico, 1983). Shiirer-Vermes-Millar Shiirer, Emil, The History qf the Jewish People in the Age qfJesus Christ, rev. ed. by G. Vermes and F. Millar, Vol. I (Edinburgh, 1973). Samson b. Abraham of Sens, Mishnah commentary in Romm Sens edition of Babylonian Talmud. Shabbat Shah. Shabuot Shav. Shebiit Sheb. Sheq. Sheqalim Smallwood Smallwood, E. Mary, The Jews under Roman Rule: From Pompey to Diocletian (Leiden, 1976). Smith Smith, Morton, "Palestinian Judaism in the First Centuries," in Moshe Davis, ed., Israel: Its Role in Civilization (New York, 1956), pp. 67-81. Snaith Snaith, N. A., Leviticus and Numbers (London, 1967). Sot. Sotah Strack Strack, Hermann, Introduction to the Talmud and Midrash (Philadelphia, reprint: 1959). Suk. Sukkah T. Tosefta Ta. Taanit Tam. Tamid Tern. Temurah Ter. Terumot Theophrastus, Enquiry Theophrastus, Enquiry into Plants, tr. Sir Arthur Hart, 2 vols., [Loeb Classical Library] (London, 1916). Toh. Tohorot T.Y. Tebul Yom TYT Tosepot Yom Tob. Yom Tob Lippmann Heller, Mishnah commentary, in standard editions of Mishnah. Uqs. Uqsin Urbach, "Charity" Urbach, Ephraim E., "Political and Social Tendencies in Talmudic Concepts of Charity" (in Hebrew), in Zion XVI (1951), pp. l-27. Varro, Agriculture Varro, Marcus Terentius, On Agriculture, tr. William Davis Hooper [Loeb Classical Library] (London, 1933). Vermes, Scrolls Vermes, Geza, The Dead Sea Scrolls in English (Harmondsworth, 1968). Weiner Weiner, David, "A Study of Mishnah Tractate Bikkurim, Chapter Three," in W. S. Green, ed., Approaches to Ancient Judaism. Vol. III (Chico, 1981), pp. 89-104. Sambursky Sarason, Demai

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INTRODUCTION

Wenig

Wenig-Rubenstein, Margaret, "A Commentary on Mishnah-Tosefta Bikkurim, Chapters One and Two," in W. S. Green, ed., Approaches to Ancient Judaism. Vol. Ill (Chico, 1981), pp. 47-88. White, Bibliography White, K. D., A Bibliography qf Roman Agriculture (Reading, 1970). White, Farming White, K. D., Roman Farming (Ithaca, 1970). y. Yerushalmi, Palestinian Talmud Yad. Yadayyim Yeb. Yebamot Yom. Yomah Y.T. Yom Tob Zab. Zabbim Zebahim Zeb. Zuckermandel Zuckermandel, Moses Samuel, Tosephta, based on the Erfort and Vzenna Codices, with Parallels and Variants (Trier, 1881-1882; revised edition with supplement by Saul Lieberman, Jerusalem, reprint: 1970).

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HISTORY OF THE MISHNAIC LAW OF AGRICULTURE DEVELOPMENT OF THE TRACTATES

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CHAPTER ONE

THE MISHNAIC DIVISION OF AGRICULTURE

I.

THE ToPIC OF THE DIVISION oF AGRICULTURE

The Division of Agriculture details the proper modes in which Israelites are to plant, harvest, process and eat the crops they grow for sustenance upon the land of Israel. For the Mishnah these matters concern, first, how Israelites are to fulfill their responsibility to pay from the produce certain agricultural tithes. These taxes support the poor of the community of Israel and contribute to the maintenance of the priests and Levites who serve in the Temple in Jerusalem. Within the Division of Agriculture, this requirement to separate tithes leads to a wide range of topical concerns. In addition to describing each of the major tithes and providing rules for their separation, 1 the Mishnah's authorities discuss how the holy tithes are to be prepared for consumption and provide details of how Israelites are to make certain that they do not eat produce from which these tithes have not been separated at all. 2 The Division of Agriculture does not, however, concern simply the payment of agricultural tithes. Within the Israelite understanding of the world certain other limitations, known from Scripture and described in detail in the Division of Agriculture, restrict the Israelites' use of the land. Israelites, that is to say, must plant and harvest their fields according to specified norms. These norms hold that crops must be arranged in the field in ways that prevent certain species from growing together. Other rules preclude the consumption of fruit from a tree's first three bearing years. The Mishnah even regulates the year to year permissibility of carrying out agricultural activities altogether, restricting, for instance, the planting and harvesting of crops in the seventh year of the sabbatical cycle. 3 The division as a whole thus takes up the wide 1 Tractates Peah, Maaser Sheni, Bikkurim and parts of Tractates Terumot and Hallah. 2 The primary locus of this issue is Tractate Demai. Tractate Maaserot along with parts of Tractate Hallah describe how Israelites may be certain to tithe when required. 3 The concerns listed here are taken up in Tractates Kilaim, Orlah and Shebiit, respectively.

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range of concerns that devolve upon both the production and consumption of food in the Israelite world. The wide range of topics discussed here, taken direcdy from Scripture, must not prevent us from seeing the single point of the division as a whole. For seen as a unity, this division's diverse topical interests in fact reflect a single perspective that its authors bring to their work on this theme. For the Mishnah's rabbis, the agricultural laws oudine how Israelites are to maintain and use a land that ultimately is the special possession of God. To do this, Israelites must correcdy use the land in all facets of the production of food. First, they must plant, cultivate and harvest their crops in ways that accord with the character of the land's divine ownership. Once the food of the land is ready for consumption they must further pay agricultural tithes. This payment releases the lien upon the food held by God, who, by providing the land, earns a share in the crop. The Mishnah's rabbis thus do not understand the payment of tithes simply to be a method of maintaining the Templecult or of supporting the needy of their community. Nor do they understand the other regulations that control use of the land to fulfill only general agricultural, social or economic functions (e.g., the possible agricultural value of allowing the land to lie fallow once every seven years). The Mishnah's authorities, rather, see in these regulations descriptions of how Israelites are to use their land in accordance with the specific nature of God's creation of the universe and in keeping with God's special relationship with the people and land of Israel. 4 While, on the surface, the Mishnah speaks of the payment of farm taxes and the implementation of idiosyncratic agricultural taboos, we see that, within the larger frame of the division as a whole, these regulations phrase an overarching understanding of the character of the world and of the place of the Israelite nation within that universe. As the Mishnah's authorities know from Scripture, because, in creating the world, God rested on the seventh day, so the land of Israel, the possession of God, must be allowed to rest each seventh year. 5 Since, when creating the world, God carefully distinguished each and every discrete species of plant, so in planting their fields, Israelites must be careful not to plant together different species, which would eradicate the dis-

4 The basis for these ideas obviously occurs in Scripture, as I point out in detail in Section III of this chapter. 5 See Newman, p. 15, and below, Chapter Five, note I.

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tinction established by God. 6 And because crops that grow upon the land of Israel partake of the bounty of God's land, they are bonded to God and may not be eaten until God's interest in them has been satisfied, through payment of heave-offering and tithes. 7 In all, the Division of Agriculture describes what Israelites must know not simply to grow produce and run their economy, but, more important, to carry out their production and consumption of food under the terms of sanctity, originally described in Scripture, in which God created the world. The laws given here thus comprise one central aspect of the larger rabbinic agendum for the Israelite nation in the first centuries. These laws show in concrete terms how Israelites are to live their lives in holiness and describe how they may forge a world that conforms to the state of perfection in which God originally created the umverse.

II.

RABBINIC AND GRECO-ROMAN WRITING ON AGRICULTURE

To begin to make sense of the concerns of the division before us, we must locate the larger contexts within which the rabbinic interest in agriculture is rooted. While the Scriptural foundations for the agricultural law will be explored in detail in the following section of this introduction, it is important to begin with the evidence contemporary with the Mishnah's own authors. For we shall find that, indeed, the rabbinic interest in agriculture is in keeping with larger trends in the GrecoRoman world in which the Mishnaic rabbis lived. Beginning as early as the time of Hesiod, plant and animal husbandry was a topic of great concern for ancient writers, who dealt at length with the use of the land in the production of food. Important representatives of this genre are the Greek and Latin writings of Theophrastus (4th century B.C.E.),

See Mandelbaum, pp. l-4. God provides the land of Israel and therefore has a lien upon the crops that the land produces. Payment of this lien, in the form of heave-offering and tithes, releases the food for consumption by Israelites. It should be clear that God's lien upon the produce, and not any intrinsic status of holiness, accounts for the prohibition against Israelites' making a meal of untithed food. This is explained by Sarason ("Zeraim," pp. 87-89 and p. 94, n. 17), who points in particular to (Ushan) rules of Tractate Terumot, which even allow the householder to fulfill the liability to tithing of one batch by separating heave-offering and tithes from a different batch. I make the same point in The Priestly Gift in Mishnah, p. 3. 6

7

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Cato (2nd century B.C.E.), Varro (1st century C.E.) and Pliny (1st century C.E.). Indicative of the importance of this topic in the GrecoRoman world is the list at V arro 1.1. 7-9 of fifty Greek and Latin authors on agriculture known to Varro. Columella (I.l. 7) likewise is familiar with many writings on this topic. 8 Before we move ahead to examine the comparison between the Mishnaic and the Greek and Latin writings, we must be clear that these Greco-Roman works provide the only other systematic writings of the Mishnah's own period with which we can compare the rabbinic Division of Agriculture. The contemporary Judaic literatures, by contrast, show litde interest in this topic. The Dead Sea community engaged in communal meals (see Schiffman, Sectarian Law, pp. 191-201 ), and all of its food was prepared in accordance with stricdy regulated procedures. Yet the available texts do not concern themselves with the specifics of how this food was to be grown and prepared for consumption. Observance of agricultural laws as a matter of piety actually was made light of within the early Christian community, as is clear from the degradation of Pharisees as individuals who "tithe dill and cumin but have neglected the weightier matters of the law, justice, mercy and faith." 9 The early Christians thus produced no sustained writing on agriculture or on the meaning of Scripture's agricultural rules (or, indeed, on any other Pentateuchal commandments). Within the Judaic context of the first centuries, then, the rabbinic movement alone saw in Scripture's agricultural law a topic for systematic analysis. This means, as I said, that for purposes of contemporary comparison, we must leave the Judaic context entirely. Contrary to what we might expect, however, comparison with the Greek and Latin works on agriculture does not serve to point out the extent to which the Israelite community of the first centuries participated in the Hellenistic culture and scientific economy of its time. The comparison points out, rather, the extent to which the Israelite com-

8 For a general introduction to the Greco-Roman literary sources on agriculture and farming, see White, Fanning, pp. 14-46. A detailed discussion of farm economy in the ancient world is found in Finely, pp. 95-122. See also Frank, Economic Survry of Ancient Rome. Vol. V. Roman Italy and the Empire. Unfortunately, the Mishnah's reticence concerning the actual operation of farms makes even general correlation of the rabbinic material with the facts supplied by Finely impossible. 9 Matthew 23:23-24, Luke 11:42. While expressing the same attitude, the issue of Jesus' picking on the Sabbath (Matthew 12:1-6 and parallels) is not relevant here, since it concerns work on the Sabbath, not agricultural taboos.

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munity of the first centuries maintained ideals developed in its Scriptural heritage but failed to concentrate upon contemporary developments in either technological or literary concerns. For in the Greek world, by the time of Aristotle and Theophrastus, agriculture had been seen primarily as a matter of science, a technical subject to be approached through observation and to be written about 1) in terms of profit and loss, just as were other business concerns, or 2) from a scientific perspective, as in the case of Theophrastus' botanical writings. In Xenophon's Oeconomicus, written some 600 years before the Mishnah, we already find a guidebook for household and farm management. 10 Among scientific works, Theophrastus' Historia Plantarum and De Causis Plantarum initiated the work of systematic botany. In the middle of the second century B.C.E. Cato transferred the subject of agriculture into the Latin speaking world, writing practical guides for farming and the organization and management of estates producing wine and olive oil (White, p. 19). The first book of Varro's De Re Rustica covers the topics of 1) terrain and soil, 2) staff and equipment, 3) techniques of cultivation and 4) the yearly agricultural calendar, such that "all the processes of cultivation from sowing-time to harvest are clearly described" (White, p. 23). The most systematic and complete work on agriculture is that of Columella, completed in the first century, that is, close to the period in which the Mishnah's authorities worked. He covers all aspects of scientific plant and animal husbandry and the economic management of an estate. In the time of the Mishnah's framers, Pliny produced his vast encyclopedia. In Books Seventeen and Eighteen he speaks in detail about arbonculture and agriculture. Books Twelve through Sixteen as well deal with trees (White, pp. 28-29). While this list of authors and their contributions could be greatly extended, it should already be sufficient to indicate the preoccupation of Roman literary culture with the topic of agriculture and to characterize the topics about which the Greco-Roman authors wrote. This survey makes clear the very different attitudes that the rabbinic and Greco-Roman authors had concerning the topic of agriculture. When the Greco-Roman writers spoke of farming, their concerns revolved around the contemporary sciences of plant-husbandry, botanical classification and land management. This is not to argue that, in the Greco-Roman world at large, the planting and harvesting of crops was

10

On this and following see White, loc. cit.

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not a matter of important religious concern. To the contrary, we know from certain sources about the agricultural celebrations and the rituals that pertained to the production of food. Obviously, agricultural deities were of preeminent importance in Greco-Roman religion. The point, however, is that, whatever importance these activities had in the lives of common people, they were taken for granted as aspects of everyday life. They were a separate subject, referred to in inscriptions and transmitted from generation to generation, but were not deemed worthy of sustained intellectual attention. 11 Greco-Roman writers did not for the most part trouble themselves with what they regarded as the superstitions that surrounded the common folk's agricultural habits. They concerned themselves rather with the science and economics of food production and processing. By contrast to the Greco-Roman authors, when the Mishnah's rabbis think about agriculture, they consider solely matters of non-empirical significance. Their discussion of what should or should not be done in the planting, harvesting and processing of crops is not determined by economic and agricultural reality. It reflects rather the Israelites' perception of the existence of a deity who owns the land and who enhances or withdraws its fruitfulness depending upon the people's fulfillment of his particular desires. Surely Israelite farmers in the first centuries learned and used contemporary methods of plant-husbandry, adopted the tools used by the Greeks around them and through plantscience attempted to improve the production of their fields. 12 From the

11 A detailed comparison between the Mishnaic system of agriculture and GrecoRoman agricultural rites and taboos is not possible because of the lack of a detailed study of the Greco-Roman materials. Such a study has not been carried out presumably because of the diverse nature of the sources for pagan agricultural customs. Most information derives from inscriptions, along with occasional references from writers such as Cato, who, in detailing proper estate management, suggests the proper prayers for different points in the agricultural year. Important for our purposes is the fact that, within Hellenism, the upper class Roman writers tended to have religious beliefs substantially different from those of the common practitioners of agricultural rituals. In the rabbinic context, by contrast, we find the intellectual class involved in the development of these ritual practices. 12 Evidence of this is collected by Feliks, Agnculture. As Feliks shows, what little agricultural realia is revealed in the Mishnah (and in particular in the Talmudim) appears to conform to contemporary norms of farming and food production. One notable parallel is the equal importance of the threshing floor in Greco-Roman and Mishnaic law. In the Greco-Roman system, the crops are there divided between the crown and the peasants, and tax claims are there paid (Rostovtzeff, p. 280). Comparably, in Mishnaic law, tithes normally are paid at the threshing floor. In the Greco-Roman system, the importance of the threshing floor relates to its easy accessibility by tax officials. The

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perspective of the Mishnah's own authors, however, these are not the matters of importance in the successful production of food. What counts according to the Mishnah's rabbis is the Israelites' observance of the divine laws that assure the presence of God's blessing upon the produce of the land of Israel. While the rabbinic and Greco-Roman authors present two very different approaches to the topic of agriculture, we must be clear that they share a single goal, the improved productivity of the land and the enhanced quality of the crops. Just as Greek and Latin authors presented their scientific studies so as to allow improved food production, so the rabbis of the Mishnah understood observance of the laws they presented to be a means of assuring the safety of the people of Israel within its land, of promoting the fruitfulness of the ground and of assuring the quality of the crops produced. This attitude is stated explicitly by Simeon b. Eleazar, of the final generation of Mishnaic masters. Mishnah Sotah 9:13 and Tosefta Maaser Sheni 5:30 read: R. Simeon b. Eleazar says, "[Failure to keep the produce in a state of cultic] cleanness removed the flavor and aroma [from the food] and [failure to separate] tithes removed the plumpness and abundance." The same extended passage in Tosefta Maaser Sheni draws out the Mishnah's understanding of the relationship between the separation of tithes and the prosperity that, in the Hebrew Bible, God promises the Israelite nation. Dt. 6: 11-12 refers to "houses full of good things, which you [Israelites] did not [yourselves] fill, and cisterns hewn out, which you did not hew, and vineyards and olive trees, which you did not plant." Scripture concludes that "when you [Israelites] eat and are full, then take heed lest you forget the Lord, who brought you out of Egypt." Tosefta Maaser Sheni 5:28 makes explicit its understanding that, through the separation of tithes, Israelites thank God for this prosperity and assure that God's goodness will continue to be available. Thus the passage states that "all agriculture offerings are [given] in response to [the number of God's] gifts [to the Israelite nation]." The comparison between the Greco-Roman and rabbinic writers thus shows two different paths to a single desired result. This comparison

Mishnah, however, sees a very different significance to the threshing floor, specifically, its marking the point at which the food first is made ready for consumption. It therefore is not clear what significance can be made of the superficial similarity between the two legal systems.

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further makes clear the unique character, in the Mishnah's own day, of the rabbinic handling of the topic of agriculture. Surely, in light of the character of the Mishnah and the rabbinic movement as a whole, we cannot be surprised that the Mishnah's authorities focus upon Scriptural ideas and that they fail to speak of matters of science. Still, what we have seen here does have important implications for our larger understanding of the early rabbinic movement and its relationship to the Hellenistic philosophical and cultural world in which it grew. 13 This importance is in tempering the claims that have been made concerning the similarity between the earliest rabbis and the contemporary Greek thinkers. As Morton Smith, among others, has argued, the rabbinic movement exhibited numerous traits familiar from Hellenistic culture. Speaking specifically of the Pharisees, Smith states: Not only was the theory of the Pharisaic school that of a school of Greek philosophers, but so were its practices. Its teachers taught without pay, like philosophers; they attached to themselves particular disciples who followed them around and served them, like philosophers; they looked to gifts for support, like philosophers; they were exempt from taxation, like philosophers; they were distinguished in the street by their walk, speech. and peculiar clothing, like philosophers; and finally~what is after all the meat of the matter~they discussed the questions philosophers discussed and reached the conclusions philosophers reached (Smith, p. 81 ).

Smith's conclusion, based upon later sources' description of the appearance of the rabbis and on parallels pointed out by many scholars between Greek and rabbinic exegetical terminology and methods, points to one certain aspect of the formation of the rabbinic movement in the first centuries. As Smith suggests, Hellenistic philosophy certainly contributed to the overall social style of the rabbinic estate and influenced certain of the methods they used and even the questions they probed. Yet, when we examine closely the actual concerns of the Greco-Roman and rabbinic writings on a single topic, we see the essential discontinuity between the rabbis and other contemporary intellectuals. The content and focus of rabbinic thought and the interests of Greco-Roman authors writing on the topic at hand simply do not correspond. The Division of Agriculture as a statement of rabbinic theology thus has as

13 The following is intended to apply to the earliest period in the formation of rabbinic Judaism, represented by the documentary evidence of the Mishnah. I take it as a given that later documents' claims about rabbinism reflect the situation of those documents' own period, but not necessarily that of earlier times.

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its primary context not the contemporary Hellenistic world in which the rabbis lived but, as we shall see in a moment, the world of Scripture that these rabbis inherited from Israelite antiquity. 14 The rabbinic departure from the concerns of their own time will have important implications in the conclusion of this chapter, when we examine the meaning of the Division of Agriculture within the context of the first centuries. That analysis, however, depends upon our first locating the real foundation of the division before us. We therefore must turn away from the Hellenistic writers who so far have taken up our attention. We look now instead at the Hebrew Scriptures, which, in the Division of Agriculture, the rabbinic authorities rework and develop. For the facts and interests of Scripture provide the primary foundation for all that the Mishnah's authors do with the topic of agriculture.

III.

MISHNAH AND ScRIPTURE

When we come to the world of Scripture, we enter the world of discourse that the Mishnah's own framers wish us to see as theirs. For the authorities of the Mishnah's Division of Agriculture approach their chosen topic from the perspective of the Hebrew Bible, which, as we shall see, provides all of the basic facts that the text before us uses and interprets. The rabbis want to know exactly what Scripture requires of Israelites who grow food upon the land of Israel. Therefore they explore in depth the meaning of each of the Hebrew Bible's agricultural laws. Yet we would err were we to claim that the Mishnah's division is primarily an interpretation of Scripture's relevant materials. For the rabbis' work in the Mishnah is quite unlike that which we normally refer to by the term exegesis. Rather, while the Mishnaic rabbis take up concerns known only from the Hebrew Bible, the result of their analysis of those topics is to create a code of law quite unexpected within the frame of biblical thinking about agriculture. This is evident at even the most superficial level of examination of the materials before us. For while Scripture states its agricultural laws episodically, in a

14 Lieberman, "How Much Greek in Jewish Palestine?" makes this same point on different grounds. He points out the certain familiarity of the rabbis with Greek language and philosophical ideas. Yet he carefully delineates the overall autonomy of the rabbis, who pursued their own programmatic issues and who did not frequently adopt Greek philosophical theory or even technical language.

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smattering of rules scattered through the Pentateuch, 15 the Mishnah's framers provide a methodical approach to the agricultural law as a whole. Each of Scripture's topics, that is to say, is fully explored so as to facilitate the implementation of Scripture's tersely stated rules. The Mishnah and not Scripture thus sees in the agricultural life of the people of Israel a concern worthy of protracted and exacting attention. 16 This is particularly clear when we recall, as I mentioned above, that no other Jewish work of the Mishnah's own period sees in the agricultural law a topic worthy of sustained interest. The Mishnah's Division of Agriculture is further distinguished from its Scriptural antecedents by the set of issues and legal theories the Mishnah's rabbis bring to their deliberations. The rabbis' larger themes, on the one hand, are not surprising. They concern the conditions under which produce must be grown, harvested, prepared and eaten so as to assure its meeting the conditions of holiness understood to have been set down by God. These themes derive directly from the Scriptural legislation that delineates proper use of the land of Israel and that describes the agricultural offerings that Israelites must separate. Yet, on the other hand, in treating these themes the Mishnah's authorities both ask specific questions unforeseen by Scripture and suggest a larger, encompassing approach to the agricultural law that exceeds the original interest of the writers of Scripture. What sets the Mishnah apart from Scripture is the former's insistence, to be documented in a moment, that the system of agricultural laws provides a means through which Israelites are to control and properly dispose of the holiness that results when Israelites grow food upon the land understood to be the possession of God. Unlike Scripture, that is to say, the Mishnah does not view the separation of tithes-a topic that takes up the majority of both Scripture's and the Mishnah's discussions about agriculture-as primarily a system of taxation that supports the poor and the Temple authorities and that, to some small 15 I count a total of sixty-eight verses, scattered in nineteen passages. The majority of these passages contain only one or two verses. The overall total of verses is raised considerably by the single, long passage at Dt. 26: 1-15, which discusses the liturgy for the presentation of first fruits and for Scripture's "year of tithing." The relevant passages from Scripture are discussed in my introductions to each of the tractates of this division. 16 As I stated above, note 4, many of the Mishnah's basic understandings derive from Scripture. The point here, to be supported in detail in the following summary of the contents of this division, is that the Mishnah's framers use Scripture's laws in ways not envisioned by Scripture at all.

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extent, engenders the performance on the part of the Israelite of certain, annual, Temple-centered activities, e.g., the eating of second tithe and the ritual that accompanies the presentation of the first fruits. 17 Rather, the Mishnah views these laws to have a central importance on a day to day basis within the home and community life of individual Israelites. This is because, for the Mishnah, by observing the agricultural regulations, Israelites maintain the order and sanctity of the world established by God at the time of creation. First and foremost, the Mishnah understands God to play a central role in the Israelites' production of food. God therefore has a lien upon the ripened produce of the land. This lien upon the crops he helps grow must be paid before Israelites can take the food for their own use. This is accomplished when they set aside from the produce the required agricultural offerings. The separation of heave-offering and tithes thus is viewed by the Mishnah not as a way of supporting cult, but as a way of returning to God what by right is his what therefore is, by definition, holy. While Scripture refers to certain agricultural offerings as holy things, 18 it does not focus upon the fact that what the Israelites separate for the priest, for instance, is consecrated, Nor does it dwell upon the implication that Israelites' ability to designate produce to be holy means that the Israelite has responsibilities similar to those of a priest, who, in his ministrations at the altar, works with and controls the holy. In line with the focus of Scripture as a whole, rather, the center of the biblical agricultural laws is the priest and the Temple, the final recipients of the produce set aside by Israelite householders. The Mishnah, however, all but ignores the rules for giving tithes to the priests. In focusing upon 17 In light of the unsystematic nature of Scripture's tithing laws, scholars have not reached a consensus concerning their origin or significance. The problem arises with the attempt to locate in Scripture a unitary system of agricultural offerings (see, e.g., Oppenheimer, "Terumot"). This leads to claims of a dual focus of the tithing law, upon piety, on the one hand, and taxation, on the other (see MacCulloch, Guthrie). As Sarason, Demai, pp. 3-10, points out, however, the Deuteronomic and Priestly sources contain two distinct theories of tithing. The former holds that the separation of tithes acknowledges God's ownership of the land of Israel and expresses gratitude for the land's fertility. The latter holds that the tithes go to the Levites and Aaronide priests as their pay for serving in the Temple. (This same duality between piety and taxation is found, notably, within the Roman system of tithes and tribute. See Rouse.) The Mishnah's authorities take Scripture's diverse statements and in part conflicting definitions of specific offerings and derive from them a unitary and focused set of laws concerned with the sanctification of Israelite life. 18 Scripture's references, obviously, are the source of Mishnah's knowledge that certain offerings are consecrated. But again, the Mishnah's authorities find in this fact an importance unforeseen by those who stand behind Scripture's rules.

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individual Israelites instead, the Mishnah's rabbis designate their fields and hearths to be central loci of sanctification within the Israelite world. The way in which the Mishnah's authorities build upon the biblical agricultural laws is apparent in both the Yavnean and Ushan strata of the Division of Agriculture. While the Yavnean materials are undeveloped in terms of a specific legal ideology, they do treat all of the topics that concern the Israelites' production and preparation of food. The divergence of the Mishnah from Scripture becomes even clearer, however, as we recognize the point, particular to the Mishnah, that emerges from the division as a whole. This point is represented in the insistence of the Mishnah's final generation of authorities that compliance with God's law depends not so much upon the physical actions of Israelites as upon the intentions and perceptions with which they perform those actions. Particular to the Mishnah thus is the notion that, rather than being confined to a preordained set of laws and definitions, in farming the land and eating its produce, Israelites themselves determine what accords or does not accord with God's will. While the set of facts taken up in this division derives from Scripture, the Mishnah's real concern thus is familiar from the rest of the Mishnah, which likewise sets out to define how Israelites' intentions and perceptions contribute to the nation's living a life of holiness. 19 In order to illustrate both the systematic character of the Mishnah's treatment of the law of agriculture and to show how the division as a whole makes the point to which I have referred about intention and perception, I survey the topics and main points of each of the pertinent tractates in this division. I list the tractates according to the role their topic plays in the unfolding of the systematic agendum of the division as a whole. This topical arrangement shows the division to be organized in five major headings, covering the continuum of cultic activities necessary when seed is planted, harvested, cooked and eaten. These topics cover l) the production of crops, 2) the conditions under which those crops become subject to the separation of agricultural offerings, 3) the processes through which those offerings are physically

19 This point is developed by Neusner, Judaism, pp. 270-283. For the case of tractates in this division, see Newman, pp. 15-20, Brooks, p. 35, Mandelbaum, pp. 2-4, Avery-Peck, pp. 2-6 and Jaffee, pp. 4-5. For the role of human intention in the Division of Agriculture as a whole, see below, Chapter Fourteen and Conclusions. My characterization of the state of legal thinking in the period before 70 and at Yavneh appears in Chapters Twelve and Thirteen.

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set aside, 4) how the offerings are to be maintained once they have been separated and 5) how common food and agricultural offerings properly are to be eaten. 20

A. Producing Crops under Conditions qf Holiness 1. Shebiit The tractate legislates for the observance of the Sabbatical year (Lev. 25: 1-7), during which Israelites must refrain from all agricultural labors normally carried out in the other six years of the Sabbatical cycle. The foundation of the Scriptural idea of the Sabbatical year is the notion that the land of Israel is a special possession of God, given to the people of Israel as a sign of the unique relationship between this people and their Lord. 21 As the special possession of God, the land must be treated in ways commensurate with God's own holiness. One central characteristic of God is that, in creating the world, he ceased working on the seventh day. In keeping with this characteristic of God, the holy land that is God's possession likewise must be made to rest each seventh year. 22 The Mishnah's special contribution to this topic is found in its Ushan stratum, which rejects Scripture's notion that all field labor indeed is forbidden in the Sabbatical year. Ushans claim instead that the permissibility of field labor during the Sabbatical year depends not upon the concrete nature of that labor but upon the intentions of the Israelite who carries it out and the perceptions of those who see his activities in the fields. Only what is intended by and appears to Israelites to violate the seventh year is forbidden, regardless of the concrete effects of the particular labor (Newman, pp. 17-19). 2. Kilaim In planting the fields of the land of Israel, Israelites must maintain the distinctions, established by God at the time of the creation of the universe, between different types of produce. The Israelite thereby maintains the order and concomitant sanctity of the world, just as God created it. The special point of the tractate before us, again found in its latest stratum, is that what is orderly, and therefore permitted, or disorderly, and so forbidden, depends primarily upon the perceptions

20 The ideas summarized here are detailed in full in the introductions to each of the tractates, Chapters Two through Eleven. 21 See Davies, pp. 15, 17-19. 22 See below, Chapter Five, note I.

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of common Israelites. Their ability to look at a field and determine whether or not the different crops growing in it comprise an illicit confusion determines the status of those crops (Mandelbaum, pp. 2-4).

B. Conditions under which Produce Becomes Subject to Sanctification l. Maaserot Scripture is clear that in order to support the priestly and Levitical castes, Israelites must separate from produce grown on the land of Israel certain agricultural gifts. The Mishnah develops this notion to hold that this separation constitutes the Israelite's designation of the produce to be holy. The question of Tractate Maaserot, unforeseen by Scripture, concerns the conditions under which produce becomes subject to such sanctification. Only after those conditions are met may an Israelite validly separate an offering from the produce. The tractate's point, developed in its almost exclusively Ushan materials, is that produce becomes subject to sanctification as an offering when Israelites l) desire it for food and 2) take concrete actions that show their intention to use the food in a meal at their own tables. The tractate thus holds that God cannot claim his share of produce whenever he wants. God's right to a portion of the crop of the land of Israel, rather, is a reflex of Israelites' own desire to use the food of the land (Jaffee, pp. 4-5). 2. Hallah The tractate describes the conditions under which produce becomes subject to dough offering, described at Num. 15: l 7-21. Comparable to the issue of Tractate Maaserot, the tractate questions the circumstances under which the Israelite's preparation of grain renders the food produced subject to sanctification as dough offering. Suggesting a concept unforeseen by Scripture, it assumes that not all dough is subject to this agricultural gift. Liability, rather, depends upon the specific ingredients used as well as method by which the dough is prepared. By talking about the role of human processing in rendering food subject to tithe, Tractate Hallah complements Tractate Maaserot, which refers to the significance of human desire to use the food still ripening in the field. Unlike the other tractates of this division, however, Hallah contains predominantly Y avnean materials. It therefore does not bring into play the role of human perception in determining whether or not, in a case of doubt, a mixture is subject to dough offering. It holds instead that this depends upon definitions, applied in all cases, of what is bread and what is subsumed under some different category of food. Jacob Neusner - 978-90-47-41637-1 Downloaded from Brill.com02/08/2023 11:54:33AM via Universite degli Studi di Milano

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C. 7he Designation qf Produce to Be an Agricultural Offiring 1. Terumot 1:1-4:6 This section of Tractate Terumot takes up the metaphysical requirements of the valid designation of agricultural offerings. Its point, unknown in Scripture, is that the Israelite who separates heave-offering must 1) have the consciousness of being involved in a sacred activity and must 2) formulate the intention to separate-and thereby consecrate-a quantity of produce for the priest (Avery-Peck, pp. 2-16). What a householder separates but does not intend to consecrate as heave-offering remains unconsecrated and does not serve as the heave-offering required of the individual's produce. In addition to this topic, the tractate's first section discusses the conditions under which produce may be separated from one batch as heave-offering on behalf of a different batch. These materials make the point that even an improperly performed separation of heave-offering is valid if the individual who carried it out did so with the requisite intention.

2. Peah Tractate Peah provides a substantive correlate to Tractate Terumot, asking how produce is set aside as tithes for the poor. Poor offerings differ from heave-offering and other tithes insofar as their designation is not completed by the householder alone. The farmer's produce becomes subject to poor gifts according to the schema laid out in Tractate Maaserot. However the actual designation of these gifts is not complete until the poor themselves acquire the produce. The central task of this tractate thus is to indicate the conditions under which produce is held to have been transferred as an agricultural gift from the possession of the Israelite farmer to the poor. Tractate Peah deals as well with a wide range of issues concerning the separation and distribution of poor offerings (Brooks, pp. 3-5). 3. Bikkurim The tractate describes the ritual through which the farmer designates, separates and carries to Jerusalem first fruits, described at Dt. 26:1-11, Lev. 23:9-21 and Num. 28:26. Through discussion of the ritual requirements of the separation of an agricultural offering, it complements Mishnah Terumot's description of the metaphysical requirements of that separation. The tractate's most interesting chapters present a systematic comparison of the restrictions that apply to the several agricultural offerings known to the Mishnah. Since this material assumes the completed discussions of all of the offerings, it obviously derives from the end of the development of the division as a whole.

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D. 7he Care and Handling qf Hof:y Produce 1. Terumot 4:7-10:12 The body of Tractate Terumot examines situations, for the most part unforeseen by Scripture, in which an Israelite uses consecrated heave-offering in a manner unbefitting its holy status. The offering, for instance, may be mixed with unconsecrated food, planted as seed, cooked with secular food or actually eaten by the nonpriest. The point of these materials is that the adjudication of such situations depends ultimately upon the perceptions and intentions of the Israelite who allows the priestly gift wrongly to be used. A non-priest who intentionally violates the holy produce is culpable for sacrilege and can do nothing to replace the offering or placate God, e.g., through payment of a fine to the priest. If the misuse of the heave-offering is unintentional, by contrast, the Israelite simply replaces that which he accidentally has taken and pays a fine to atone for his unintended use of holy food. But he is not deemed by virtue of his unintended action irrevocably to have violated the sanctity of the priestly gift. While the basic notion of a distinction between intentional and unintentional consumption of holy produce is known to Scripture, the Mishnah extends this idea to indicate clearly its belief that in all cases, through their own intentions and actions, common Israelites determine what is and what is not holy.

2. Maaser Sheni Second tithe, derived from the unnamed offering described at Dt. 14:22-26, is separated by the farmer and brought to Jerusalem, where that individual and his family eat it "before the Lord." What prompts the Mishnah's interest in this offering is the fact that the individual may sell it and bring to Jerusalem the money he receives, to be used to buy produce eaten in place of original tithe. This offering thus provides the context for a discussion of the effects of the economic world (e.g., increasing and decreasing market prices) upon holy food. While Scripture provides the law that allows for the redemption of the tithe, the Mishnah's interest in and rules for the proper handling of holy produce within the secular marketplace are entirely its own.

E. Eating Food Under Conditions qf Holiness l. Demai The tractate contributes to the Division of Agriculture the notion that Israelites must tithe any produce that leaves their possession. In this way they avoid becoming accomplices in the actions of Jacob Neusner - 978-90-47-41637-1 Downloaded from Brill.com02/08/2023 11:54:33AM via Universite degli Studi di Milano

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individuals who would transgress by eating food without tithing at all. The problem is that, while certain Israelites take it upon themselves scrupulously to tithe all produce, others separate only the consecrated heave-offering. The central issue here thus is how those who wish to be certain that they do not eat untithed food are to cope in a world filled with people who are not trusted to tithe what they eat or sell. In such a society, those who do wish to tithe must assure that all they receive and eat is in fact tithed. They also must take steps to prevent themselves from contributing to the transgression of someone else who might eat untithed foods. Work on this tractate begins late in the development of the Division of Agriculture, for its basic notion, that individuals must tithe all food that leaves their possession, derives from the Ushan stratum. This idea, as well as the notion of a specific group of Israelites who alone are scrupulous about tithing, is unknown to Scripture (see Sarason, Demai, pp. l-2, 9-18). 2. Orlah Israelites may not consume the fruit of a tree in its first three bearing years (Lev. 19:23). In order to facilitate observance of this requirement, Tractate Orlah clarifies what are classified as fruit trees, defines what produce of these trees comprises their fruit and indicates whether or not an old tree that is uprooted and replanted is deemed a new growth and therefore subject to this restriction. As in other tractates in this division, the latest stratum of these laws presents the distinctive notion that whether or not the tree's fruit is subject to the restrictions of orlah depends primarily upon whether or not the Israelite understands the tree to be a new growth and believes the fruit in question to be its primary crop. 3. Terumot 11:1-10 The final section of Tractate Terumot completes this division's deliberations on the consumption of produce by detailing proper modes of preparing, consuming and disposing of consecrated foodsY The point parallels that made in other sections of this tractate. Heave-offering must be prepared in a manner that assures that none 23 This one Mishnaic chapter contains almost all that the Division of Agriculture has to say about the normal transfer of agricultural gifts to a priest. Even it, however, focuses primarily upon the circumstances under which Israelites need not maintain these gifts for the priest at all and cases in which they may even consume parts of the gifts themselves. This focus is indicative of the concern of the division as a whole. This concern, as I said, is the role of the common Israelite in manipulating holiness. In light of this central concern, the Division of Agriculture, much like the rest of the Mishnah, has little interest in the concrete rights of priests and Levites.

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of the consecrated food will go to waste. The status of consecration of allowable waste is determined according to the attitude of the priest and Israelite. Whatever is deemed still to be worthy as food retains a consecrated status and may be eaten only by priests. Once food no longer is in a condition in which it normally would be eaten, or if the Israelite's actions indicate that he no longer is concerned with it, by contrast, it loses its status of sanctification and may be used by the non-priest. These materials thus present the logical correlate to the materials in Section C, which hold that produce takes on the status of sanctification in the first place when Israelites deem it worthy of that status and intentionally designate it as holy. The preceding summary makes clear two important facts about the Division of Agriculture. The first is that the division comprises a sustained essay. It discusses each of the pertinent aspects of its larger theme and, within these subtopics, it presses home a single, identifiable point. In illuminating Scripture's several, diverse rules concerning how Israelites are to treat the holy land and its crops, the Mishnah's authorities analyze the proper modes of planting, harvesting, preparing and consuming food. These topical sections describe in full each aspect of the agricultural life of the Israelite nation and show how, within each area of law, Israelites' own perspectives contribute to a determination of what is permitted and forbidden. The second fact is that, in interpreting Scripture's rules on these topics, the Mishnah's own framers have made choices unexpected on the basis of Scripture and therefore clearly indicative of their own beliefs and attitudes. In particular, the Mishnaic rabbis use Scripture's agriculture law as a context in which to talk about the role of individual Israelites in the sanctification of their world. This larger interest in sanctification is seen, on the one hand, in the concentration of the Mishnah's authorities upon those aspects of farming and the production of food that entail the handling of holiness, either in the separation of consecrated offerings or in the proper use of the land so as not to violate the holy character in which God created the universe in the first place. The perspective of the Mishnah as a redacted document is clear, on the other hand, from the particular attitude that the Mishnah's final generation of framers brings to the law. For each of the topical units just described I have documented the insistence of Ushan authorities that the common Israelite does not confront an already shaped universe. According to this view, rather, through their own actions and

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intentions, individual Israelites impose order upon the world, themselves determining that it conforms to the holy image originally designed by God and described in Scripture's revelation. A central point of this division thus is that through their actions in preparing food for consumption, Israelites themselves assure that God's sanctity properly is maintained and disposed in the world. By giving common Israelites this responsibility, the Mishnah attributes to them the powers over the holy normally assigned only to priests, who minister in the cult. One central accomplishment of the rabbis who created the Division of Agriculture thus is the articulation of a clear program by which the people of Israel are, in concrete ways, made a kingdom of priests. The Mishnah assigns to Israelites the power to lend ultimate meaning to the otherwise commonplace activities of farming the earth, reaping its crop, and preparing food for human consumption.

IV.

THE DIVISION OF AGRICULTURE IN CONTEXT

The first sections of this introduction characterized the Division of Agriculture as a creation of the first centuries. One fact we have uncovered is negative, the result of the comparison of the rabbinic materials with the Greco-Roman writings on agriculture. For in selecting the topics of this division, rabbinic authorities ignored those questions and problems that, in their same day, attracted other writers on their topic. This fact, pointing to this division's inattention to historical context, is of course consonant with the character of the Mishnah as a whole. While living during the period of the destruction of the Temple in Jerusalem and the failed Bar Kokhba revolt, the authorities before us do not focus upon those events and, indeed, hardly ever mention them. Nor do they suggest explicitly how the changed situation of the Jewish people in the land of Israel might affect the meaning or implementation of the laws first stated in Scripture. This is particularly striking for the division before us, in so far as its laws are so closely bound with the Israelite understanding of God's role as guardian over the people and land of Israel. The first fact with which we deal thus is the inattention of the Division of Agriculture's authorities to historical setting. This is seen in the division's relationship to other contemporary writings on farming and in its general characteristic, with the Mishnah as a whole, of not speaking of those central events that shaped the world of its framers.

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The second result of the analyses carried out thus far is to make clear the overall concerns and intellectual goals of the Mishnah's rabbis. The issue of this division is sanctification and, in particular, the role of the individual Israelite in maintaining the proper order of the universe God created. In the view of this division, the Israelite assures the proper functioning of the world by l) planting and cultivating crops in manners commensurate with the way in which God created the world in the first place, and 2) by paying from the ripened crop the share owed to God from all produce grown under divine supervision from a land whose ultimate owner is God. These two facts, the Mishnah's inattention to history, on the one hand, and its concern for sanctification, on the other, point us towards the significance that the rules before us had for those who, in the first centuries, worked on the agricultural law. The actual history that these individuals endured did not conform to that which was promised the people of Israel in their holy Scripture. As a result, in the material before us, the Mishnah's framers, on the one hand, turn away from history, ignoring the larger events that shaped their own day. At the same time, the focus the Mishnah's authors do choose serves to counter the meaning that Israelites in the first centuries might have been expected to derive from the events of their day. The powerlessness of the Israelite nation in the face of the Roman empire is balanced by the claim of the division before us that the Israelite people in fact has powers much greater than those exercised on the stage of political history. These powers assure that the world will continue along those paths established by God at the time of creation. In this way the Israelite nation is made responsible for the eventual perfection of the world and its return to the perfect state of holiness in which it was created. The people of Israel, however subjugated in earthly terms, actually hold the key to all that is powerful and important in the universe. This power is exercised when Israelites who plant, cultivate and consume the produce of the land of Israel conform to the divine will that stands behind the creation and maintenance of the world.

V.

CoNCLUSION

The analyses contained in the first three sections of this chapter represent an initial characterization of the contents and meaning of the Division of Agriculture. This characterization allows us to see the per-

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spective of those rabbis who initiated the analysis of Scripture and who brought the Mishnah as a whole into the form in which it stands before us today. While these authorities built upon the foundations laid by Scripture, both the mode of presentation and the ideas found in the Division of Agriculture are their own. To plumb the true meaning of this division, we therefore must examine in detail the system of law before us, taking seriously its origins in rabbinic, and not biblical, religion. We already have seen in general terms both the character of the division's content and the nature of the development in legal thinking that occurred between the periods of Yavneh and Usha. Our task now is to provide an exacting account of the content and concerns of the division as a whole, beginning with its origins in the period before 70 and continuing through the period of its final formulation. Only with such an account in hand can we claim correctly to evaluate the meaning of this division's rules within the confines of each historical period and then in the larger perspective of the Division of Agriculture as a whole. The method to be followed at this point already has been described m detail in the Introduction. The point, we recall, is two-fold: l. By isolating and examining in detail the thematic units of each of the tractates in this division, we come to see clearly the content and focus as well as the specific ideas of the Division of Agriculture as a systematic whole. 2. By organizing the attributed statements of each thematic unit according to the generation of Mishnaic authorities to whom they are assigned, and by testing the authenticity of these attributions, we develop a historical picture of the growth of the law of agriculture. This allows us to identify the particular assumptions, interests and contributions of each generation of authorities. Addressing these two concerns allows us to depict the development of rabbinic thought in the first centuries. This means, first and foremost, detailing the intellectual growth of the nascent rabbinic movement. It means as well plotting the growth of rabbinic Judaism in light of the political history of the centuries during which the rabbis formulated this law. We judge, that is to say, the specific attitudes and issues relevant in each period of the law's formation on the basis of the larger political and social context in which that generation's rabbis worked. Analysis of the historical unfolding of the law in each of the tractates of the Division of Agriculture thus serves two purposes. The

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chronology of the Mishnah's law, first, provides a key to the cognitive world of the rabbinic authorities who lived before 70 and later, in the periods of Yavneh and Usha. Second, this information leads to an examination of the perspectives of the Mishnah's authorities against the larger historical environment in which they carried out their work. In doing this, this study takes seriously the fact that the parameters of the meaning of the work of each of the Mishnah's generations of authorities must be sought in the historical moment in which those rabbis conceived the ideas that their laws express.

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CHAPTER TWO

THE DEVELOPMENT OF THE TRACTATES: PEAH

I.

INTRODUCTION

Scripture knows six offerings of produce that Israelite farmers must leave behind for collection by sojourners, orphans and widows, that is, the needy among the people of Israel. The tractate before us is organized so as to treat each of these charity offerings in turn. The corner of the field that is left unharvested for the poor (Lev. 19:9, 23:22) is discussed in the tractate's first two units (M. Pe. 1: 1-4:9). Gleanings, Lev. 19:9, 23:22, take up unit iii (M. Pe. 4:1 0-5:6). The forgotten sheaf (Dt. 24:19) comes next (M. Pe. 5:7-7:2). The laws for the defective cluster (Dt. 24:21) and grape gleanings (Lev. 19:1 0) appear in unit v (M. Pe. 7:3-8). Finally, poorman's tithe (Dt. 14:18-19) is the topic of unit vi (M. Pe. 8: 1-9). The tractate's practical and unembellished organization, designed to expound in turn each of the unconsecrated offerings that Scripture assigns to the poor, must not be allowed to mask the presence of a deeper problematic that underlies the legislation found here. The generative question of the tractate concerns how a certain portion of produce grown upon the land of Israel comes to have the status of an agricultural offering, such that it may be collected and eaten only by certain individuals, under specifically prescribed conditions. In asking this question, the Mishnah's authors see a close parallel between these poor gifts and other, consecrated, agricultural offerings. Indeed, as we shall see, the laws for the separation of poor tithes parallel closely the rules that pertain to heave-offering and second tithe. The point of the tractate is that produce is subject to poor giftslike all other agricultural offerings-only at the point at which the farmer wishes to make personal use of it. His own interest in the ripening crop awakens God's interest in the food and, with it, the obligation to tithe. This fact is stressed in the tractate's notion that even such produce as is known early in its growth to be destined for the poore.g., defective clusters-remains the property of the householder until the harvest begins. Until the farmer shows that he wants the produce, the poor have no right to it. Jacob Neusner - 978-90-47-41637-1 Downloaded from Brill.com02/08/2023 11:54:33AM via Universite degli Studi di Milano

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In light of its central concern in the process through which produce is designated for the poor, Tractate Peah barely touches upon the social and economic problems associated with the administration of a poor tax. For instance, the question of which poor may collect these offerings and how much they should collect, let alone that of how we assure that these gifts are paid at all, never are satisfactorily answered (see unit vi). Rather, the poor are important in this tractate only in light of the special role that they play in the designation as a poor gift of the produce left by the Israelite farmer. What makes these agricultural gifts particularly interesting to the Mishnah's framers 1 is that their achieving the status of an offering depends upon two individuals. I already have explained the role of the farmer, whose own actions in harvesting the produce set into play the requirement to pay the shares of the crop outlined in Scripture. Unlike in the case of other offerings, however, here the tithe's recipient-the poor person-also has a central role. The obligation of the farmer is fulfilled when, during the harvest, he either intentionally or unintentionally leaves certain produce behind in the field. Now the desires and actions of the poor come into play. Only by completing the harvest and thereby showing their own desire for the food of the land do they validly acquire that produce as a poor offering. In this way, Tractate Peah indicates the deep significance for the Division of Agriculture of Israelites' human desires for food, which the Mishnah consistently understands to be represented in their actions in harvesting crops. Food becomes subject to poor gifts only after the harvest begins. It actually takes on the status of a poor offering only when the poor, by showing their own hunger for the food, invoke God's requirement that the needy be fed. 2 This aspect of the meaning of the tractate comes into clear focus when we turn to the actual unfolding of the law of Tractate Peah in the period before 70 and at Yavneh and Usha. In order to make intelligible the specific laws of the tractate, however, we need first to review the Scriptural passages upon which these rules depend.

1 That is, by contrast to first tithe, which, like poor offerings, is not consecrated, yet is not the subject of a tractate. See Chapter Seven, note 2, and Chapter Fifteen, note 5. 2 That such items as gleanings are not in the status of tithe at all until the poor take them is shown by the fact that, at the end of the harvest season, rich and poor alike may enter the fields and take any produce that remains, even if it had been left by the farmer for the poor.

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When you reap the harvest of your land, you shall not reap your field to its very border, neither shall you gather the gleanings after your harvest. And you shall not strip your vineyards bare (l't'wll), neither shall you gather the fallen grapes of your vineyard (prt); you shall leave them for the poor and for the sojourner: I am the Lord your God. (Lev. 19:9-10) And when you reap the harvest of your land, you shall not reap your field to its very border, nor shall you gather the gleanings after your harvest: I am the Lord your God. (Lev. 23:22) When you reap your harvest in your field, and have forgotten a sheaf in the field, you shall not go back to get it; it shall be for the sojourner, the fatherless, and the widow; that the Lord your God may bless you in all the work of your hands. When you beat olive trees, you shall not go over the boughs again; it shall be for the sojourner, the fatherless, and the widow. When you gather the grapes of your vineyard, you shall not glean (l't'wll) it afterward; it shall be for the sojourner, the fatherless, and the widow. You shall remember that you once were a slave in Egypt; therefore I command you to do this. (Dt. 24: 19-22) At the end of every three years you shall bring forth all of the tithe of your produce in the same year, and lay it up within your towns; and the Levite, because he has no portion or inheritance with you, and the sojourner, the fatherless, and the widow, who are within your towns, shall come and eat and be filled; that the Lord your God may bless you in all the work of your hands that you do. (Dt. 14: 18-19)

Both the Holiness Code and D prescribe amounts of produce to be given to the poor. According to D this is in recognition of the fact that all Israelites once were in need, as slaves in Egypt (Dt. 24:22). Alternatively it assures that God will continue to sustain the people as a whole, by causing the land to be fertile (Dt. 14: 19). The Mishnah takes from these passages the basic description of each of the poor gifts it treats. Peah (the unharvested corner) and grape gleanings (prt) derive from Lev. 19:9-10. Other gleanings are based upon Lev. 23:22. The forgotten sheaf is described at Dt. 24:19, poorman's tithe at Dt. 14:18-19. Mishnah derives its notion of the defective grape cluster, which must be left for the poor, from the use, at Lev. 19:10 and Dt. 24:21, of the root 'IL, normally, "to do a second time," hence, "to glean." Authorities who stand behind the Mishnah, by contrast, wish to differentiate the meaning of that term from Lev. 19:9's "prt". By claiming that the root 'IL refers to defective clusters, they resolve the apparent redundancy in the biblical text. With the Scriptural basis of the tractate clear, we turn now to the unfolding of the Mishnah's law in its major periods of development. Jacob Neusner - 978-90-47-41637-1 Downloaded from Brill.com02/08/2023 11:54:33AM via Universite degli Studi di Milano

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A. Peah Bqore 70 Only one discussion can be verified to have taken place in the period before 70. It concerns Dt. 24: 19's rule that a sheaf a farmer forgets in the field becomes the property of the poor. The Houses (iv.A.6: lD-6:3, 6:5) dispute the conditions under which this law applies. The Shammaites exempt from this restriction any sheaf that has distinctive features. The farmer might at a later moment recall such a sheaf to mind. This being the case, the Shammaites deem it never to have actually been forgotten. The Hillelites do not deem probative the fact that the farmer might later remember the shea£ It presently is forgotten and therefore falls under the restriction of the forgotten sheaf. While the issue of how we judge what is "forgotten" is intrinsically interesting, it has no implications for later developments in this tractate's law.

B. Peah in the Time qf Yavneh Y avneans established the agendum of issues that concerns this tractate as a whole. These issues revolve around the crucial question of how produce comes to have the special status of an agricultural offering, in this case, a poor gift. In light of this basic issue, the ideas of this tractate's Yavnean stratum often parallel and depend upon notions found in the Yavnean strata of Tractates Terumot and Maaserot, which deal with this same problem. Yavneans thus are clear (iii.B.4: 10) that the rights of the poor to their share begin only at the point at which the farmer desires to take produce for his own personal use. As in the case of heave-offering and tithes, the process through which produce becomes the property of the poor thus is set in motion by the farmer's claiming of food to be his own. Yavneans further note (i.B.1 :6) that produce designated to be a poor offering, like produce that is either heave-offering or tithes, is exempt from the separation of other agricultural gifts. Certain details of these notions, accepted in Ushan times as normative, come under dispute in the names of Yavnean figures. Defective grape clusters are the property of the poor (Dt. 24:21 ). Yavneans argue the rule for a field all of which is defective clusters. Against Aqiba, Eliezer takes the view that all of the produce of a field cannot take on the status of an agricultural offering, for this would preclude the formal act of designation through which the farmer 1) shows his desire for what is to become his own share and 2) distinguishes that share from the gift being made to the poor person, Levite or priest. While

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under dispute at Yavneh, Eliezer's view, that validly to set aside an agricultural offering the farmer must keep some produce for himself, is normative at Usha (i.C.l:3C-E, i.D.l:2). Yavneans also argue whether or not the farmer may give poor tithes to any poor person he desires, just as he presents heave-offering and tithes to the priest or Levite of his choice (ii.B.4:9A-C). Ushans resolve that he may not, basing this view upon their notion that these offerings take on their special status only when the poor take them for themselves. Y avneans develop the Shammaite view that distinctive sheaves do not fall under the law of the forgotten sheaf (iv.B.6:6). They do this by giving specific examples of what constitutes a distinctive sheaf. This discussion is further developed at Usha. Another matter subject to continued attention in the Ushan period concerns what constitutes a field. This is an important issue because of the underlying assumption that peah must be designated in each individual field. Yavneans argue whether a field is defined on geographical terms, as an area distinguished by natural boundaries, or whether the farmer's own attitude, indicated in the way he plants and harvests a plot of land determines what is a field (i.B.2:3-4, 3:2). In Ushan times, 3 the latter view takes precedence, such that, so long as the farmer's own intentions come into play, these override the natural boundaries that separate one plot of land from another (i.D.3:3). Finally, an issue introduced in the Yavnean period remains moot in Usha. This concerns whether gleanings are comparable to consecrated offerings, such that the specific produce that is a gleaning must go to the poor. Alternatively, because gleanings are unconsecrated, so long as the poor receive the required amount of produce, they need not be given the actual produce that was left behind in the field (iii.B.5:2G-K). Ushans greatly expand the discourse on this question. The basic issue however of the character of produce paid to the poor to satisfY God's lien upon the crops of the land of Israel remains unresolved.

C. Peah in the Time qf Usha Ushans develop the Yavnean discussions and conclude that, in most cases, the rules for the setting aside of poor gifts correspond to those

3 Note however that at Usha as well there are several enigmatic disputes on this issue, such that the legal development is not so clear here as we might desire.

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for the designation of heave-offering and tithes. U shans determine that the farmer may not designate all of his field to be peah (i.C.l :3C-E, i.D .1: 2). In doing this, the farmer would fail to make the required distinction between what is his and that which is set aside as the agricultural gift. In refusing to exercise his own right to the produce the farmer does not set into motion the system of restrictions that, in the first place, requires that he set aside produce for the poor, priests and Levites. The same notion, that the obligation to set aside offerings is a reflection of the farmer's own claim to the produce, is revealed in the Ushan idea that no poor gifts belong to the poor until the farmer begins harvesting. This is the point at which he lays claim to his own share. This applies even in the case of defective clusters (v.C. 7:5, 8) which, because of their distinctive shape, are known early in their growth and ripening to be destined for the poor. Gentiles may not set aside poor gifts (ii.D.4:9D-E), just as heave-offering they separate is not valid (Terumot, ii.C.3:9). This is in line with the notion that agricultural offerings are paid to release the lien upon the produce held by God, who provides Israelites with the land upon which they grow their food. God did not give the land to gentiles and therefore cannot be held even to sanction their growing of produce upon it. Accordingly, God has no share in the crops that result from gentiles' farm work. Gentiles may, of course, make gifts of produce to whomever they please. But since they have no share in the bounty provided by God, they may not validly designate the agricultural offerings that recognize that bounty. Finally, repeating the substance of the general discussion concerning all tithes (see Maaserot, i.C.l: 1), Ushans restrict the separation of poor gifts to agricultural produce grown upon the land of Israel and subject to harvesting and use as food. Only in the case of such produce have Israelites demanded the help of God in producing crops. Only from these foods, accordingly, is God due a share, in this case, in the form of poor tithes. Unlike the Yavneans, Ushans are clear that, in one major respect, peah and gleanings differ from heave-offering and tithes. While the latter are given by the householder to whichever priest or Levite he desires, these poor gifts, Ushans state, must be left in the field for the poor themselves to collect (ii.C.4: 1-2, ii.D.4:3). On the one hand, Ushans appear simply to be stressing what is clear in Scripture, which the poor are to go through the fields and take for themselves what is left behind after the harvest. At a deeper level, however, this Ushan development

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of an issue moot at Yavneh (ii.B.4:5, 4:9A-C) details a particularly Ushan metaphysic. As we have seen, Ushans hold that produce becomes peah or gleanings through the purposeful act of the farmer who leaves incomplete the harvesting of his field. By leaving part of his produce unpicked, the farmer gives up his right to that food. The functional analogue to this conception is that the poor, for their part, take possession of this same produce only when they complete that act of harvesting the produce left incomplete by the farmer. 4 In this way, Ushans assure that, in the designation and collection of poor gifts, nothing is left to chance or to intention not made concrete through specific behaviors. The poor, for instance, cannot gain possession of peah or gleanings simply through an oral declaration that they are his. Validly to acquire the produce, the poor person must actually pick it (ii.D.4:3). The transfer of the produce from the hands of the farmer to those of the poor thus is formalized through the actions of the harvest that, in the system of tithes as a whole, indicate Israelites' purposeful use of the God-given land. This same Ushan attitude is found in the Ushan consensus that, should a farmer's notion of what constitutes a field be indicated in what crops he plants and harvests as a unit, his attitude, and not geographical boundaries, determines what constitutes a single field for purposes of the designation of peah (i.C.3:4, 5, i.D.3:3). Along with the theoretical issues just described, Ushans provide practical rules that make possible the implementation of these tithing laws. They indicate exactly where in each field peah is to be set aside (i.C.l :3A-B) and detail who is responsible for designating it (i.C.3:5, i.D.2:7-8). Ushans define what constitutes a defective cluster (v.C. 7:4) and clarify the conditions under which the law of the forgotten sheaf applies at all (iv.C.6:10, 7:1, 2). Finally, Ushans indicate the quantity of poor tithe that the farmer is to distribute to each poor person (vi.C.8:5, vi.D.8:6, 7).

4 I do not believe that this is an over-interpretation. Surely Ushans here agree with what is explicit in Scripture, that gleanings and peah must be collected by the poor themselves. But in making this claim, they reject the alternative approach raised in the Yavnean period and phrase in particularly Ushan terms the requirement that the poor person actually "harvest" the produce and not simply lay claim to it.

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II.

THE HISTORY OF TRACTATE PEAH

i. 7he Designation qf Produce to be Peah

The unit assumes that peah must be designated individually within each of a farmer's distinct fields. This theory engenders the present material's central question, of what defines an autonomous field within which the poor offering must be set aside. The two possible answers both find expression here. The first, stated in anonymous rules attested to Yavneh and Usha (i.B.2:3-4 and 3:2; i.C.2: 1-2 and 3:4), holds that a field is defined by geographical considerations, e.g., on the basis of physical boundaries that set off one area of land from the property surrounding it. In this view, even if a farmer harvests in separate batches the produce of his geographically defined field, he still must designate peah only once, for the crop as a whole. The farmer's own actions and attitudes do not affect his obligations regarding the designation of this offering. The alternative view is found in the names of both Yavnean and Ushan authorities, i.B.2:3-4, 3:2 and i.C.3:4. This view holds that the way in which the farmer treats the land determines what is a field for purposes of setting aside peah. By harvesting produce at different times he shows his belief that the two batches of produce are distinct. He therefore must separate peah individually for each batch, even if all of the produce grew in a single geographic area. In the same way, if the farmer had small plots of one kind of produce growing among a different kind, he may designate peah once for all of the plots that he harvests together, for he thereby treats them as a single crop. Both of the conceptions detailed here appear in Yavnean and Ushan materials. At i.D.3:3, the view that the farmer's own use of his land is determinative appears as undisputed law, apparently signaling the ultimate, Ushan, resolution of this issue. Other minor issues pertinent to the designation of peah occur here. Yavneans determine that produce designated to be peah is exempt from the separation of heave-offering and tithes (i.B.l :6). Yavneans also dispute the minimum area of land which, deemed a field, is subject to peah (i.B.3:6). Ushans argue whether peah must be designated in the back corner of the field, as its name implies, or whether it may be set aside anywhere in the field that the farmer chooses (i.C.l :3A-B). The issue is resolved in favor of the former view, that peah is specific to the rear of the field (i.D.2:7-8).

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Rules given here regarding the quantity of peah to be designated depend upon the parallel discussion at Terumot, ii.B.4:5 and ii.A.4:3. Judah notes that, as is the case for heave-offering, a farmer may not designate all of his crop to be peah (i.C.l :3C-E). An anonymous, but probably Ushan, rule notes that the quantity of produce to be designated as peah depends upon external factors, such as the quantity of the field's yield and the number of poor people to be supported (i.D.l :2). The rule is comparable to that of Terumot, ii.A.4:3, which states that the required quantity of heave-offering is determined on the basis of the attitude of the householder from whose produce the offering is taken. A. Bifore 70 2:5-6 A field sown with a single type of seed requires a single designation of peah, even if the crop is brought to the threshing floor in two lots. If the field contains two types of seed, it requires two separate designations of peah, even if the crops are brought to the threshing floor in one lot. In the case of two different types of wheat, the farmer's actions are determinative. If he harvests in one lot, he designates a single portion of peah. If he harvests in two lots he designates two separate portions of peah. Precedent involving Simeon of Mispah, Gamaliel the Elder and Nahum the Scribe, which restates this latter rule.

The issue is derivative of a concern argued both at Yavneh, i.B.2:3-4, and Usha, i.C.2: 1-2. In particular, this pericope takes up an issue left open by the U shan materials, of what happens if the farmer does not harvest his field in accordance with the natural divisions that divide it. into autonomous areas. Note as well the usually Ushan consideration found here, that the Israelite's own attitude determines whether what he harvests is to be deemed one or two crops. For these reasons, it is unlikely that this material is authentic in the mouths of authorities who lived before 70. It seems rather to be a creation of the Ushan period. 5

5 I see no way to explain the appearance for this particular rule of a legal precedent involving authorities from the period of the Houses, a precedent that indeed claims that the law at hand was given to Moses at Sinai. If it is, simply, pseudepigraphic, designed to lend credence to later rabbis' legal claims, it is unclear why the same device does not appear with any frequency in the document before us. At the same time, the specific legal ideology expressed here clearly belongs in the later period, such that it cannot be assumed to reveal facts about the legal perspective of those who lived while the Temple stood.

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3:1 Plots of grain sown among The issue of whether or not the olive trees-the House of Shammai trees separate the plots of grain say: He designates peah for each into distinct fields is raised in exacdy individual plot, unless the plots' these same terms in U shan times, edges touch. The House of Hillel i.C.3:4. It therefore is unlikely to say: In all cases he designates peah be authentic in the mouths of the once for all of the plots. Houses. See also i.B.3:2 and i.D.3:3.

B. The Time qf Yavneh 1:6 Produce that is designated to be peah or that is put to some other use before the grain-pile is smoothed over is exempt from the separation of heave-offering and tithes. So Aqiba.

Produce becomes liable for tithes when its processing is completed, signified by the point at which the grain-pile is smoothed over. If, before that point, it is designated as a particular agricultural gift it never becomes subject to other tithes. Once it is liable, however, it cannot again be rendered exempt, even if it is put to a use that, before the completion of processing, would have removed it from the system of tithes. Assumed throughout this division, considerable development of the idea contained here occurs in the Ushan strata of Tractates Terumot and Maaserot.

2:3-4 Fences divide areas planted The assumption is that peah IS to with trees into separate orchards be designated separately in each Gamaliel: For olive trees, all of a field the farmer owns. We theresingle farmer's trees comprise an fore must define what constitutes an orchard. With carob trees, all that autonomous field. Y avneans begin are in sight of one another are a the work for the case of orchards. single orchard. Eliezer bar Sadoq The issue is further discussed at in Gamaliel's name: The rule for U sha for the case of fields of grain, carobs is the same as that for olives. i.C.2:1-2. 3:2 One who reaps the ripe portions of his field and leaves the

Sages hold that since all of the areas the farmer has harvested are

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unripe-Aqiba: He designates peah separately for each area he harvests. Sages: He designates peah once for all of these areas.

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located in a single field, peah must be designated only once. Aqiba, by contrast, notes that, through his own actions, the farmer has created geographically distinct areas. Therefore peah must be separated from each individually. Ushans engage in this same dispute for the case in which, in a single harvest, the farmer reaps otherwise distinct fields of grain, i.C.3:4. Final resolution of the issues comes at i.D.3:3, which rules that the farmer's own attitude and intentions determine what is deemed a field.

3:6 Dispute over mm1mum area Four Yavnean authorities agree that subject to peah-Eliezer, Joshua, small parcels of land are inconseTarfon andJudah b. Betherah give quential. Aqiba, by contrast, holds specific figures familiar in part from that all tracts of land have lasting Kilaim, ii.B.2: l 0. Aqiba disagrees value and therefore are subject to and states that all land, of how- peah and have the full status of real ever small an area, produces a crop estate. Placement at Yavneh is on subject to peah (see Shebiit v.B.l 0:6). the basis of cited authorities and the parallel Yavnean rule at Kilaim, ii.B.2:10.

C. The Time qf Usha 1:3A-B Simeon and an anonymous rule dispute whether peah may be designated anywhere in the field or whether, to constitute the required offering, it must be designated in the field's rear corner.

The issue is how literally we are to understand Lev. 19:9's injunction not to harvest the comer of the field. Unlike the anonymous rule, Simeon wishes to take the word comer to mean exactly what it says.

l :3C-E Judah: In order validly to designate peah the farmer must retain for himself at least one of the field's stalks of grain. A desig-

To be valid, the designation must distinguish what is to be peah from other produce that the farmer wants for himsel£ Yavneans developed this

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nation of the whole field to be peah is not valid.

idea for the designation of heaveoffering (Terumot, ii.B.4:5), supplying a firm basis for assigning this application of the theory to the U shan stratum.

2: l-2 Natural landmarks and boundaries establish the borders of a field for purposes of the designation of peah. Meir and sages dispute a specific item. Judah: An irrigation ditch that prevents a tract of land from being harvested as one creates two distinct fields.

This continues the discussion initiated at Yavneh, i.B.2:3-4, adding nothing to the theory presented there.

3:4 Plots of onions sown among plots of vegetables-Y ose: He designates peah from each individual plot. Sages: He designates peah in one plot for all of them.

The Yavnean materials asked whether a geographically unitary field might be treated in two or more parts because of the actions or attitude of the farmer. Ushans carry this forward to ask whether the farmer's actions in harvesting together separate plots allow him to treat them as one for purposes of designating peah.

3:5 Joint owners of a field desig- Ownership determines whether a nate peah once for the whole field. field is a single entity, from which If they individually own separate peah is designated once, or two or portions of the field, they designate more distinct entities, from which peah separately A person who owns peah must be designated several the trees but not the ground in times. This notion is carried to its which they are planted must des- logical conclusion in the final rule. ignate peah individually from each A person who owns no land does tree. Judah: If the land's owner still not have an orchard in which he owns some trees, he must designate can designate peah once. A person who owns all the land and some peah for the orchard as a whole. of the trees, by contrast, does possess an orchard and therefore 1s responsible for all of the peah.

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3:7-8 Development of theory of Continued discussion here at Usha Aqiba, i.B.3:6, that all pieces of supports the assignment of i.B.3:6 land, however small, are significant to the Y avnean stratum. and deemed to be real estate. Glosses by Y ose and Simeon.

D. Unassigned 1: 1 The quantity of peah and first fruits, the value of the appearance offering, the quantity of righteous deeds and the amount of time to be spent in study of Torah are not subject to a fixed, required measure.

The claim that peah has no fixed measure is contradicted by the following entry.

1:2 Peah must comprise at least one-sixtieth of a field's produce. The quantity designated should accord with the size of the field, the extent of the yield and the number of poor people in the vicinity.

Cf., Terumot, ii.A.4:3, which states that one-sixtieth is the minimum acceptable percentage for a separation of heave-offering. Like the present rule, the latter holds that more may be separated depending upon the particular attitude of the farmer. Since the particular issue discussed here for the case of peah does not appear elsewhere, I see no way of establishing whether it is early or late.

1:4-5 Whatever is edible, cultivated, grown from the land of Israel, harvested as a crop and preserved in storage is subject to designation as peah.

If there is no harvest, a portion of the field cannot be left behind. If the food will spoil quickly, it need not be left, for it might go to waste. The other provisions given here are familiar from Maaserot, i.C.l: 1, their primary setting. Like the rule upon which it is based, this pericope derives from no earlier than Ushan times.

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2:7-8 Whoever harvests the back portion of a field is responsible for designating peah for the field as a whole. If the back part is not harvested, e.g., if it is destroyed or taken by robbers or gentiles, no peah is designated for any of the field.

This asswnes the position of Simeon, i.C.l:3A-B, that peah must be designated in the rear corner of the field. The rule therefore cannot derive from before the period of Usha.

3:3 One who puts part of the produce of his field to one use and harvests part later for a different use designates peah individually for each part. If he harvests at two separate times but intends to put all that he harvests to a single use, he designates peah once for the whole field.

This develops the rules of i.B.3:2 and i.C.3:4, to state firmly that the farmer's own attitudes and intentions determine the number of times he needs to designate peah from a single crop. Resolving an issue moot at Y avneh and U sha, it derives at earliest from Ushan times.

ii. The Distribution

if Peah

to the Poor

Yavneans come to no firm conclusions regarding how peah should be distributed to the poor. Their larger concern is the fairness of the method of distribution. They therefore argue whether the farmer should allow the poor into his field few or many times during the day (ii.B.4:5). Admitting them many times assures equal access but represents an inconvenience by forcing the poor to wait by the edges of the field all day long. Allowing the poor in just a few times a day has the opposite results. The greater issue, however, and the one developed in Ushan times, concerns the right of the landowner himself to pick and distribute that which he designates as peah. Eliezer holds that the rich landowner may indeed pick and distribute this produce to whomever he desires. This is comparable to his right to distribute heave-offering and tithes to any priest or Levite he desires. In the interests of equity, sages hold that he must give it to the first poor person he meets (ii.B. 4:9A-C). Ushans reject the very notion that the landowner normally may pick peah (ii.C.4:1-2). Once it has been designated, it no longer is the farmer's property. He therefore does not have the right to harvest it at all. At ii.D.4:3, this notion, that peah must be left unharvested for the poor,

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is developed to its logical conclusion. The rule holds that the poor acquire peah only if they complete the act of harvesting that the farmer left unfinished. The farmer's leaving of this produce unpicked signified its designation to be peah. The corollary is that such produce enters the poor's possession only when the poor themselves finish harvesting it. Any attempt to gain possession of it without picking it is null. A. Bqore 70

B. 7he Time qf Yavneh 4:5 Three times daily the poor Aqiba and Gamaliel dispute whether may enter the fields to collect peah the anonymous rule intends to assure morning, noon and afternoon. Ga- that the poor have adequate access maliel: The farmer may permit to peah or whether it is meant to them to enter more times per day, prevent the farmer from forcing the but not fewer. Aqiba: He may per- poor to stand at the edge of the mit them to enter fewer times, but field all day waiting or each time that he will allow them to enter. not more. Placement in the Yavnean stratum is on the basis of attributions alone. 4:9A-c If a rich person picks peah and declares that it is for a certain poor person, Eliezer deems his declaration to be valid. Sages say that he must give the peah to the first poor person he encounters.

The issue is whether a rich person may distribute peah in the same way he distributes heave-offering and tithes, i.e., to whomever he pleases. Sages' view is taken up in the development of this law, ii.C.4: 1-2, which holds that the farmer himself may not harvest and distribute peah at all. This relationship to ii. C. 4: 1-2 provides sound grounds for placement of this pencope m the Y avnean stratum.

C. 7he Time qf Usha 4: 1-2 Peah is designated from pro- The basic rule repeats the sense of duce that is yet unharvested. But Lev. 19:9-10, which states that the if the produce grows high on trees farmer should not reap his fields

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or on the householder's trellis, he should cut it down and distribute it. Simeon glosses.

to their borders. Ushans add that, if the poor who collect the peah might hurt themselves or damage the farmer's property, the farmer may harvest the produce and distribute it. Placement is on the basis of Simeon's gloss and the relationship between this pericope and ii.B.4:9A-C.

4:6 Produce harvested by a gentile before he converts is not subject to gleanings, the forgotten sheaf and peah. Judah: It is subject to the forgotten sheaf, for that restriction applies only after the produce has been bound in sheaves.

At the point at which the produce would have become liable it was not owned by an Israelite. It therefore never becomes liable. This notion, a commonplace in the Division of Agriculture, is attested to Usha by Judah, who disagrees not with the theory but only with its application in a particular case.

D. Unassigned 4:3 If a poor person attempts to The poor person legitimately acacquire peah by spreading his cloak quires peah only by physically reapor other produce over it, his actions ing it. In this way he completes are null. the harvest, purposely left unfinished by the householder. Discussion occurs at Usha, T. Peah 2: l. Parallel in concern to ii.C.4: 1-2 and developing ii.B.4:9A-C, this anonymous rule presumably derives from U shan times.

4:4 The poor may not use garden tools in order to collect peah. This is so they will not strike one another.

This presumably derives from Ushan times, along with the larger discussion of which it is a part, ii. C. 4: l-2 and ii.D.4:3.

4:7-8 If, at the point at which it normally becomes subject to the

The theory is the same as at ii.C.4:6, attested to Usha by Judah. In this

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agricultural restrictions, produce is particular case, since the produce owned by the Temple, it never already is in the hands of the Tembecomes subject. If it is dedicated ple, God need receive no further to the Temple and redeemed before share of it. This exemption from it becomes subject or if it already tithes does not however apply if, is subject when it is dedicated and when the produce becomes subject then, still later, it is redeemed, it to agricultural gifts, God, through is liable. the agency of the Temple, does not own it. 4:9D-E Forgotten sheaves, glean- The gentile's designation of these ings and peah left by a gentile and poor offerings is not valid. The poor taken by an Israelite are subject to therefore must tithe the produce, tithes. just as they would tithe other ordinary food given to them. The notion that the gentile may not validly designate agricultural offerings occurs at Terumot, ii.C.3:9. The present rule accordingly derives from no earlier than the U shan period. iii. Gleanings Yavneans define gleanings as produce the farmer cuts with his sickle and momentarily possesses but then accidentally drops (iii.B. 4: l 0). As with the other offerings, then, the harvest marks the beginning of the farmer's liability to leave gleanings. Produce he picks but drops prior to the harvest is not subject to this restriction. Like peah, the poor take possession of gleanings by completing the harvesting left incomplete by the farmer. In this case this means searching for and picking up the dropped food. Y avneans leave two issues of definition unresolved. They argue whether or not gleanings are comparable to consecrated offerings (iii.B.5:2G-K). If they are, the poor must receive the exact produce the farmer drops as well as any produce about which there is a doubt whether or not it is a gleaning. If gleanings are not comparable to consecrated offering, the poor may be given a quantity of produce equal to that which the farmer drops but need not be given the exact produce or any food the status of which is in doubt. This same issue is moot at Usha. The notion that the poor must receive the exact produce the farmer drops appears at iii.C.4: ll and iii.D.S: lA-C. The opposite view

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is found at iii.C.5:1D-F. Yavneans also dispute the definition of the poor person who is allowed to collect and keep poor-offerings. The question is whether that right is determined on the basis of net wealth or, alternatively, by the individual's needs at some specific time and place (iii.B.5:4). This issue too remains moot and is not referred to elsewhere in the tractate. Along with the issue of the character of gleanings, Ushans discuss minor details concerning the collection of this poor-offering. The farmer may not irrigate his field so as to make it difficult for the poor to collect their share (iii.C.5:3). A more basic point, familiar from the concerns expressed in the preceding unit, is that, in the interests of fairness, a person may not collect gleanings from produce over which he already has rights of ownership (iii.C.5:5F-L, iii.D.5:5D-E, 5:6). A. Bqore 70

B. The Time qf Yavneh 4: l 0 Gleanings are produce that the farmer harvests and momentarily takes into his possession but then accidentally drops. Whether or not he has taken final possession before the produce falls is determined by the place on the sickle from which the produce falls. Ishmael and Aqiba dispute the rule for an ambiguous case.

This initial definition of gleanings is attested to Y avneh by Ishmael and Aqiba.

5:2G-K If a stalk of grain that is gleanings is lost in a heap of grain, the householder takes two stalks, designates one to contain the tithes required of the other and then gives the fully tithed stalk to a poor person in place of the gleaning that was lost. Eliezer: The poor must gain possession of the actual stalk that was lost. Therefore the farmer begins by assigning the poor half of the heap as a whole.

Eliezer holds that the original gleaning is comparable to a consecrated offering set aside only for the poor. The poor person therefore must receive that particular stalk before he may exchange it for a different piece of grain. This view is disputed by the anonymous rule, which requires simply that the lost gleaning be replaced. Developed at iii.C.5: lD-F, this material is firmly attested to the Y avnean stratum. Jacob Neusner - 978-90-47-41637-1 Downloaded from Brill.com02/08/2023 11:54:33AM via Universite degli Studi di Milano

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5:4 A householder who is away The issue is how we determine from home and has no money may whether or not someone is poor. collect poor-offerings. Eliezer: When Eliezer goes by net worth. Since he returns home he must repay to the householder here really was not the poor the amount of produce poor, he did not have the right to he took. Sages: He need not repay. collect the offerings and must make repayment. Sages by contrast look at the individual's present situation. The householder was in need and therefore had the right to collect poor offerings. He need not make repayment. Placement in the Y avnean stratum is based on the attribution to Eliezer. See T erumot, iv.B.8: 1-3, where, in determining a person's status, Eliezer again refuses to take into account mitigating circumstances.

C. 7he Time

rif Usha

4: 11 Produce that ants carry off to ant holes belongs to the farmer. Mter the harvest, produce at the bottom of ant holes belongs to the farmer and that which is on top belongs to the poor. Meir: All this produce belongs to the poor, for in a case of doubt, produce is deemed gleanings.

Produce carried away by ants never was possessed by the farmer. It therefore does not have the status of gleanings (iii.B. 4: 10). Mter the harvest, it is unclear whether the produce in the ant holes was dropped by the harvesters or carried off by ants. For this reason its status is subject to dispute. Carrying forward the principle outlined at iii.B. 4: 10, this unit is firmly placed in the U shan stratum.

5: lD-F If wind scatters sheaves The assumption is that the poor over an area from which gleanings person must be given an amount have not yet been collected, they of produce equal to the gleanings give the poor a quantity of produce that were mixed with common proestimated to equal the gleanings duce. The poor need not be given that would have been found there. the actual gleanings. A different Simeon b. Gamaliel: They give the view of matters is found in Meir's Jacob Neusner - 978-90-47-41637-1 Downloaded from Brill.com02/08/2023 11:54:33AM via Universite degli Studi di Milano

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poor the amount of grain needed to sow the field.

position in the preceding entry, and at iii.D.5:1A-C.

5:3 Meir: They may not i~rigate a field that has been harvested until the poor have collected their produce. Sages permit.

The dispute focuses on whether or not a farmer may tend his field in a manner that makes it difficult for the poor to collect their share. Continued discussion is at Usha, T. 2:20.

5:5F-L One who contracts to harvest a field may not take poorofferings. Judah: This applies only if the harvester is paid with a percentage of the total yield. But if he receives a percentage of what he harvests, he may take gleanings, forgotten sheaves and peah, for the individual has no claim of ownership until a much later time, when the produce is brought to the threshing floor.

The principle that a poor person may not collect poor-offerings from a field he owns in whole or in part assures that such individuals cannot hoard these offerings or prevent others from collecting them. Judah applies this restriction only in a case in which the poor person actually owns some portion of the crop as a whole. Placement is on the basis of the attribution.

D. Unassigned 5: lA-c If a pile of grain is placed Any of the produce on the ground upon ground from which gleanings might be the original gleanings. have not yet been collected, all pro- This unit assumes that the poor duce touching the ground must be must be given that particular progiven to the poor. duce and, with it, any grain the status of which is in doubt. The theory is that gleanings are comparable to other consecrated offerings, which must go to their designated recipients and which cannot be exchanged for other food. Reflecting the views of Eliezer, iii.B.5:2G-K, and of Meir, iii.C.4: 11, this rule may derive from Yavnean or Ushan times.

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5:2A-F A stalk that is left standing next to unharvested stalks belongs to the householder. If it is left unharvested when the farmer finishes with the field as a whole, it is deemed a gleaning.

This extends the definition of a gleaning, iii.B.4:10, to a further sort of case. Discussion by Aqiba, T. 2:21, attests this issue to Yavneh.

5:5A-c A poor person may trade poor-offerings for untithed produce owned by someone else. The poorofferings remain exempt from tithes. That which the poor person receives remains subject to tithes.

Unlike consecrated, offerings, poortithes may be used by the poor person in any manner he wishes. Even if they are given to a rich person, they retain their original status, such that they remain exempt from tithes. This rule is in line with the position of Simeon b. Gamaliel, iii.C.5:1D-F. It appears to derive from Ushan times.

5:5D-E Two men who independently sharecrop halves of a single field may give to each other the poorman's tithe they separate.

This rule assumes the principle attested to Ushan times, iii.C.5:5F-L, that a person may not take poorman's tithe from his own field.

5:6 One who sells his field may thereafter collect poor offerings from it. The buyer may not.

This is a simple statement of the principle found at iii.C.5:5F-L.

iv. The Forgotten Sheaf (Dt. 24:19) Sheaves of grain that the farmer binds but forgets in the field become the property of the poor. So Dt. 24:19. Mishnah's authorities determine the circumstances under which a sheaf is deemed forgotten and not simply momentarily left behind. Discussion begins with the Houses, who question the case of sheaves that have distinctive characteristics. The Shammaites hold that since the farmer can easily call such sheaves to mind, he probably will return to collect them. They are not really forgotten and therefore remain his property. But the Hillelites take into account only the present fact: the farmer has left the sheaves behind and, therefore, they belong to the poor. The possibility that the farmer

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might later remember them and return is irrelevant to their status, established at the moment they are forgotten (iv.A.6: lD-6:3, 6:5). 6 Yavneans and Ushans accept and carry forward the Shammaite position. Yavneans treat as distinctive, and so not subject to the law of the forgotten sheaf, large sheaves or several sheaves standing side by side (iv.B.6:6). Ushans develop this by discussing what sorts of produce join together to comprise the quantity of produce that Y avneans deem distinctive (iv.C.6:9, 7:1, 7:2). Ushans dispute a further issue, quite basic to the discussion of the forgotten sheaf. The question is whether this restriction applies only to produce actually bound in sheaves or whether these restrictions apply as well to any produce that is forgotten by the farmer. Judah (iv.C.6: l 0) and Yose (iv.C.7:l) take the former view. Their opinion apparently is a minority view, for most of the anonymous Ushan material assumes that any produce the farmer leaves behind is in the status of a forgotten sheaf and therefore belongs to the poor. An anonymous U shan rule develops the previous discussion of the conditions under which sheaves are deemed distinctive, bringing into play the consideration of the farmer's intentions for a specific sheaf. iv.D.5:8 states that so long as the farmer has future plans for a sheaf, that sheaf does not become the possession of the poor, even if the farmer momentarily should forget about it. Ushan authorities thus take seriously the powers of intention by which a person can recall to mind an idea or object upon which he has not consciously focused for some period of time. A. Bifore 70 6: lA-c House of Shammai: Property declared ownerless for the benefit of the poor is indeed ownerless. House of Hillel: It is not ownerless unless it is given for the use of the rich as well.

Produce that is ownerless is exempt from tithes. The Hillelites say that validly to give up ownership, the householder must release all control over the food. If he controls who may take the food, it is not really

6 Concerned with the question of whether or not, in applying the law, we take into account mitigating circumstances, this dispute is comparable to the issue argued by Eliezer and Joshua, Terumot, iv.B.8: l-3. It therefore appears that the central issue of this division, fully exposed in Yavnean times and setded in the period of Usha, did receive minor consideration before 70.

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ownerless. The Shammaites hold that it is sufficient that the farmer has given up his own right to eat the produce. Insofar as any poor person may take the food and the farmer himself may not, it is ownerless. The issue expressed here appears nowhere else in this division, such that there is no way to test the authenticity of the attributions to the Houses. 7 6: lD-6:3 If a sheaf left in a field has a distinguishing characteristic such as size or location, the Shammaites hold that it is not a forgotten sheaf. The Hillelites state that it is.

Since the farmer can easily distinguish and remember this particular sheaf, the Shammaites hold that it cannot be deemed forgotten. The Hillelites by contrast take into account only the present facts. The farmer has forgotten the sheaf, such that it goes to the poor. Whether or not he might recall it later is irrelevant. Discussion of the point of each House's opinion is found at both Yavneh and Usha, T. 3:2-3, supporting the claim that this issue is authentic in the mouths of the Houses.

6:5 Two sheaves left next to each other in the field are subject to the restrictions of the forgotten sheaf, but three sheaves are not. So the Hillelites. The Shammaites

The Hillelites now are made to agree to the Shammaite position of the preceding entry, such that they simply dispute its application in a particular case. The Shammaites

7 The lack of interest in this issue may itself be considered evidence of its authenticity in the mouths of the Houses, there being no obvious context in which later authorities would have assigned such an idea to earlier ones. Even if it should be authentic, the fact that we have only one dispute on this topic makes it difficult to develop from it an understanding of the significance of the deeper legal issues it addresses.

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say: Three sheaves lying side-byside are not subject to the restriction of the forgotten sheaf, but four are.

moreover now hold the stringent position, an odd state of affairs. While the specific opinions assigned to the Houses here and in the preceding cannot be reconciled, the issue of these pericopae may be authentic to the period before 70. It is attested to Y avneh by Gamaliel, iv.B.6:6.

B. 17ze Time qf Yavneh 6:6 A sheaf containing two seahs This assumes the Shammaite opinof grain is not subject to the restric- ion, iv.A.6: lD-6:3, that a distinctions of the forgotten sheaf, Gama- tive sheaf is not subject to the law liel: Two sheaves of one seah each of the forgotten sheaf. The issue is likewise are not subject. Sages: They what specifically constitutes a disare. tinctive sheaf. Gamaliel and sages debate their positions along lines suggested by iv.A.6:5. 8 Development of the rule to which both sages and Gamaliel agree is at iv.C.6:9, providing grounds for assignment of this dispute to Yavneh.

C. 17ze Time qf Usha This develops the rule of iv.B.6:6. 6:9 Uprooted and not uprooted The first rule supplies the common produce, picked and unpicked proUshan notion that produce in differduce do not combine to create the ent stages of processing or of differtwo seahs that are exempt from the ent species does not join into a law of the forgotten sheaf (iv.B.6:6). single batch (see Terumot, i.C.2:4). Yose: A forgotten sheaf that belongs y ose makes the same point in a to the poor prevents sheaves lying slightly different way. Since the around it from joining together to farmer does not own all of the procomprise the quantity of produce duce, it cannot comprise a single exempt from the law. 8 There is no evidence however that Gamaliel and sages are familiar with the specific positions assigned to the Houses at iv.A.6: ID-6:3. This makes it difficult to assign the Houses' opinions to the period before 70. See Brooks, Chapter Six, note 20 (p. 193).

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grain pile. The different batches of produce therefore must be treated separately, just as above. 6: 10 Produce that is not yet bound Judah and sages dispute what is into sheaves is not subject to the taken for granted in the anonymous restriction of the forgotten sheaf. rule. The issue is whether or not Tubers that the farmer stores in what is not bound into sheaves can the ground-Judah: These are not be subject to the law of the forgotsubject. Sages: They are subject. ten sheaf. Judah, who apparently stands behind the anonymous rule, takes seriously the term "sheaf." The anonymous authorities by contrast, require simply that produce be forgotten so as to fall under the law (cf., Brooks toM. 6:10). Placement in this stratum is on the basis of the attribution to Judah and the parallel issue at iv.C.7:1. 7: 1 As for olive trees that have distinguishing characteristics-their fruit does not enter the status of forgotten sheaves. Two trees left unharvested are subject to the restriction of the forgotten sheaf; three are not. Y ose: The law of the forgotten sheaf does not apply to olive trees at all.

The anonymous rules apply to olive trees the law of iv.A.6: 1D-6:3, 6:5. In agreement withJudah, iv.C.6:10, Yose rejects the very notion that unharvested and forgotten olives fall under the restrictions of the forgotten sheaf. They are not "sheaves" and therefore are not subject to this law at all. Placement depends upon the attribution and the parallel to iv.C.6: 10.

7:2 An olive tree the branches of which contain two seahs of produce is not subject to the restrictions of the forgotten sheaf, so long as the farmer has not yet begun to harvest it. Once he begins the harvest, both produce in the tree and that which has fallen to the ground

The initial rule repeats for the case of the olive tree the law of iv.B.6:6. Meir's point is that only once the farmer has passed with the barvesting rod has he conducted a harvest of this produce. Only after that point does the law of the forgotten sheaf apply, as below at iv.D.6:4.

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is under the law of the forgotten Developing rules known at Yavneh sheaf. Meir: This is the case only and attested by an Ushan authorafter the worker has gone by with ity, this material is firmly placed in the harvesting rod (see Dt. 24:20). the Ushan stratum. D. Unassigned

5:7 1) If workers or the householder did not forget about a sheaf, 2) or if that sheaf was hidden by the poor, it is not in the status of a forgotten sheaf. It remains the householder's possession.

1) The workers are deemed agents of the householder. A sheaf that they remember is not, therefore, "forgotten." This rule is attested to the periods of U sha and after U sha, T. 3: 1, suggesting that it derives from no earlier than U shan times. 2) As in the case of gleanings, the householder must not be constrained to forget the sheaf (see iii.B.4: 10). What the poor cause him to forget does not take on the status of a forgotten sheaf. Its logical relationship to a Y avnean rule supports assignment of this law to Y avneh.

5:8 What the farmer does with sheaves he removes from the field determines whether or not the sheaves he leaves behind may be deemed forgotten. So long as we may assume that he intends to leave some sheaves in the field none of what he leaves behind has the status of a forgotten sheaf.

The Israelite's actions and intentions determine what produce falls into the category of forgotten sheaves. Even if he accidentally "forgot" a sheaf in the field, the sheaf remains his possession if its location conforms to his overall plans for it. Reference to the role of the Israelite's intentions provides grounds for placement at Usha. Discussion is by Judah, T. 3:1.

6:4 Dt. 24: 19 states: When you reap your harvest and forget a sheaf in the field, you shall not go back to get it. Only sheaves that those who complete the harvest have

By definition a worker cannot have forgotten a sheaf that he has not yet passed. This expansion of Scripture's rule may derive from any point in the development of the Mishnah's

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passed and forgotten are subject to the restriction of the forgotten shea£ If the sheaf is in an area from which sheaves have not yet been collected, it cannot be deemed forgotten.

laws on the forgotten sheaf. It accords in particular with the Y avnean idea that the harvest signifies the point at which these restrictions first apply.

6:7-8 Two seahs of standing grain that are forgotten in the field are not subject to the law of the forgotten sheaf. The presence of this standing grain likewise prevents a sheaf forgotten near it from entering the status of a forgotten sheaf. If the standing grain presendy contains less than two seahs but will later reach a growth of two seahs, it is not subject.

These rules depend upon and develop iv.B.6:6, meaning that they derive at earliest from the Y avnean period. Ushan discussion, T.3:5-6, makes it likely that the material is in fact Ushan. The rules hold that we must assume that the farmer will return to collect grain of two seahs or more in quantity. At the same time he will take any sheaves that have been left nearby.

6: ll If a farmer harvests or binds sheaves at night, or if he is blind, the sheaves he leaves behind still are deemed forgotten sheaves. If he purposely collected only large sheaves, the small ones he leaves behind are not deemed forgotten. A stipulation that the farmer will return and collect all that he has forgotten is not valid.

1) Since the farmer himself decided to harvest at night, darkness is not a constraint that invalidly caused him to leave the sheaf behind (see iii.B.4: l 0 and iv.D.5:7). This therefore differs from a case in which the poor hide sheaves from the farmer. 2) The farmer's stipulation designed to circumvent the law is not valid, for the fact remains that, in the meantime, certain sheaves have been forgotten and therefore belong to the poor. Developing iii.B.4: l 0 this may be Yavnean or Ushan.

v. Difective Clusters and Grape Gleanings (Lev. 19:10)

I begin with the Ushan material, in which the major work on this topic is carried out. Ushans define the defective cluster as one that is improperly shaped (v.C. 7:4). In cases of doubt, the cluster goes to the poor. This parallels the U shan idea concerning gleanings, iii. C. 4: ll. Yet if

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the cluster is hidden from view so that the farmer cannot tell if it is defective, his own actions are determinative. If he takes it, it is his, even if it turns out to be defective. Thus the farmer's own attitude towards produce in his field determines its status, just as we shall see is the case for other agricultural offerings. Ushans dispute a second question, concerning when in their growth and ripening defective clusters become the property of the poor (v.C.7:5, 8). Meir holds that since no act of designation on the part of the householder is required to establish which clusters must go to the poor, the clusters become the property of the poor as soon as they are known to be defective. Disagreeing, Judah and Yose again see the rules for defective clusters as parallel to those for other agricultural offerings. These take on their special status only as a result of specific actions on the part of the householder. They state that the defective clusters do not become the property of the poor until the farmer begins the harvest. Only when the landowner takes final possession of his own fruit does God's right to the food, and with it the poor's claim upon their share, become effective. Yavneans discuss a case in which a vineyard produces all defective clusters. Examined in its own terms, the operative issue here concerns whether defective clusters are defined by a single standard, applied to all fields, or whether definition is relative to the character of the clusters in each individual field. Eliezer takes the latter view. If all the clusters in the field are the same, none should be deemed defective. Aqiba, by contrast, applies an objective criterion (such as is suggested in specific terms in the Ushan period, iv.C. 7:4). In this view all clusters that lack, for instance, shoulders and pendant must be left for the poor, even if all the clusters in the field look that way. Seen in the perspective of the Ushan material of this unit, which clearly refers to the requirement of a designation of produce to be defective clusters, this Y avnean dispute appears to concern a different issue. In refusing to allow all of the produce of a field to become an offering, Eliezer is in line with the view of Judah and Yose (iv.C.7:5, 8), that a farmer who has not kept produce for himself cannot validly designate an agricultural offering (see also Judah at i.C.l :3C-E and the Yavnean opinion at Terumot, ii.B.4:5). Aqiba, on the other hand, is in agreement with Meir, that in the case of defective clusters, no formal act of differentiation is required. 9 In this case we thus see clearly 9 Brooks adduces both of the explanations given here, the former in the body of his comment to M. 7:7 (p. 132) and the latter in a footnote, in which he cites MR (p. 197, note 19).

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how a question of definition-common in the Y avnean stratum-took on new and different meaning as it was developed in Ushan times. v.D. 7:3 defines separated grapes, which also go to the poor, in the same terms that iii.B.4: l 0 defined other gleanings. They are produce that accidentally falls during the harvest. The rule, a singleton, may therefore be as early as Y avnean. In another singleton, the Houses (v.A. 7:6) dispute whether or not produce of the fourth year of a vineyard's growth (Lev. 19:23-25) is in all respects comparable to produce in the status of second tithe. It is impossible to verifY this issue to the period before 70. A. Bifore 70 7:6 Shammaites: Produce of a vine in its fourth year of growth is not comparable to second tithe. It therefore is not subject to the added-fifth (M. M.S. 4:3) or removal (M. M.S. 5:6) but is subject to the restrictions of the separated grape and defective cluster. Rillelites: This produce is in all respects comparable to second tithe. It therefore is not subject to the law of the separated grape or the defective cluster.

The Hillelites hold that produce from the fourth year of a vineyard's growth is comparable to produce in the status of second tithe. The Shammaites disagree. Each of the restrictions referred to here is Scriptural (see Maaser Sheni, vi.A.5:3), and the only other reference to this issue is at T. M.S. 5:17, where Rabbi and Simeon b. Gamaliel dispute the meaning of the position of the House of Shammai. While the dispute was known and discussed in Ushan times, it is unclear whether or not it goes back to the historical Houses. See the parallel at Maaser Sheni, vi.A.5:3.

B. The Time qf Yavneh 7:7 As for a vineyard that is en- Aqiba holds that defective clusters tirely defective clusters-Eliezer: are defined by an objective stanThe fruit belongs to the farmer. dard. The alternative, suggested Aqiba: It all goes to the poor. + by Eliezer, is that the definition is Debate based upon Scripture. relative to the norm in each field. Placement is on the basis of the attributions and the general Yavnean interest in poor offerings (e.g., at iii.B.4: 10 and the apparently Jacob Neusner - 978-90-47-41637-1 Downloaded from Brill.com02/08/2023 11:54:33AM via Universite degli Studi di Milano

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Yavnean iv.D.5:7). See also the parallel concern at Terumot, ii.B.4:5.

C. The Time qf Usha 7:4 A defective cluster, which belongs to the poor, does not have a wide upper part and cone-shaped lower part. A case of doubt goes to the poor. If it is lying on the ground so that one cannot tell-if it is harvested by the farmer, it belongs to him. If it is left behind, it goes to the poor. Judah: Single grapes, which do not grow in a cluster at all, are deemed a normal cluster. Sages: They are a defective cluster.

These definitions are attested to Usha by Judah. In a case of ambiguity, such as when the farmer cannot distinguish the shape of the cluster, his own actions determine whether or not that cluster takes on the status of a poor offering. This is a typically Ushan idea.

7:5 Judah: One who thins his grape vines may thin both his own produce and defective clusters.

The issue is the point at which the clusters become subject to the law that assigns them to the poor. Judah

Meir: He may not thin defective

takes the view operative for the

clusters, for they belong to the poor.

case of gleanings, peah and the forgotten shea£ The rights of the poor begin only when the farmer begins to harvest the field. Meir, by contrast, notes that, in this case, what belongs to the poor is determined by the natural process of growth. As soon as the clusters are known to be defective, they belong to the poor, such that the farmer may not harm them.

7:8 If one dedicated his field to The anonymous rule follows the the Temple before the defective position of Meir in the preceding clusters appeared, they belong to entry. As soon as the clusters are the Temple. If the dedication was known to be defective they belong after they appeared, they belong to the poor, such that the farmer to the poor. Yose states that, if so, may not dedicate them to the TernJacob Neusner - 978-90-47-41637-1 Downloaded from Brill.com02/08/2023 11:54:33AM via Universite degli Studi di Milano

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the farmer must give the Temple ple. y ose is in the position ofJudah. the value of the clusters that grew The clusters do not enter the status after the point of the dedication of poor offerings until the farmer begins the harvest. The farmer's but that were given to the poor. dedication of these clusters to the Temple therefore was valid. If they anyway are to go to the poor, as the anonymous rule demands, then the farmer must give to the Temple their value in their stead.

D. Unassigned 7:3 Separated grapes that belong to the poor are those that fall to the ground during the harvest. If the cluster fell and broke because it became entangled in the vine, it belongs to the householder. One who places a basket under the vine to catch separated grapes steals from the poor.

This definition of what goes to the poor is familiar from iii.B.4: 10 and iv.D.5:7. Note also v.B.7:7. This may therefore be as early as Y avnean. The point again is that what the harvester is constrained to drop does not enter the status of a poor offering.

vi. Poonnan's Tithe and General Rules These Ushan rules make the point that, in the distribution of poorman's tithe, each poor person should be given sufficient food to last a day (vi.C.8:5, vi.D.8:7). If the farmer has too little tithe to allow this, he lets the poor themselves distribute the offering (vi.D.8:6). Three other, unrelated, points occur in the Ushan stratum: 1. Once the poor have had ample opportunity to collect gleanings and other produce left for them in the field, the remaining food is deemed ownerless and may be taken by anyone (vi.8: 1). 2. The notion that people who are not poor may eat poor-offerings is developed with the rule that poor people may sell their share and that, when they do so, it remains exempt from tithes (vi.D.8:2-4). 3. Poverty is determined by an individual's ability to support himself, not simply on the basis of lack of assets. One who supports himself from a small amount of capital is not deemed poor (vi.D.8:8, 9).

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A. Bifore 70

B. 7he Time if Yavneh C. 7he Time if Usha 8: 1 Mter the aged-poor have gone through the field, anyone may enter the field and collect gleanings. After the poor have twice gone through the vineyard to collect separated grapes, anyone may collect such produce. After the second rainfall anyone may take forgotten produce in olive trees. Judah: Some farmers do not even harvest olives until this time. All may collect after the point at which a poor person who went to the orchard could not collect four issars-worth of olives.

Produce left for the poor but not taken by them has an ambiguous status. On the one hand it certainly is not the farmer's to take. On the other, the poor seem to have forsaken their right to it. The problem is resolved by treating the produce as though it were ownerless and available for anyone to take. The issue is at what point we deem the poors' exclusive right to the produce to be exhausted. The rules for each type of poor-offering seeks to assure that the poor will have ample opportunity to gather that which was left for them. Judah's dispute is a quibble over the facts of the

harvest. It serves to attest this construction to the time of Usha. 8:5 In dispensing poorman's tithe While discussion may begin in Y avthe householder may not give each nean times, its conclusion and the poor person less than certain set redactional imposition of a considquantities of each type of produce. eration intended to control exegeThe quantities are disputed by sis of the whole occurs only in anonymous authorities, Meir and Ushan times, with the statement of Aqiba. For the case of produce Abba Saul. In light of his position, other than wheat, barley, wine and the concern here seems to be that oil, Abba Saul holds that each poor each poor person receive enough person must be given enough pro- food to support himself for a day. duce to sell and use the revenue The other authorities simply argue to purchase two meals. how much of specific commodities comprises this amount.

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D. Unassigned 8:2-4 Poor people who sell produce are believed when they state that it is in the status of poorofferings and exempt from tithes if 1) it is the proper time of year for the particular poor-offering and 2) the produce is of a sort normally left for the poor, e.g., if it is unprocessed.

Poor-offerings sold by the poor have a high market value, since they are not subject to tithes. Under the theory that the poor might deceive buyers so as to command a high price for what they sell, these rules detail the conditions under which the poor's claims may be believed. Discussion is at Usha, T. 4: l. There is no evidence that this rule was known before Ushan times.

8:6 A farmer may give only half of his poorman's tithe to his own relatives. If he has less than the quantities indicated at vi.C.8:5, he places that which he has before the poor and they distribute it themselves.

The initial rule prevents farmers from depriving each poor person of a proper share. The second rule develops vi.C.8:5 and attests this construction to Ushan times.

8:7 Poor people who are traveling The line of questioning is familiar must be given sufficient food to last from vi.C.8:5 and vi.D.8:6, indicattheir day's journey, to spend the ing that this belongs in the Ushan night, or the Sabbath. Other rules stratum. define who may take from a soup kitchen or communal fund. 8:8 A person who has less than two hundred zuz in liquid assets may collect poor-offerings. One who has more than this may not.

As in the preceding entry, the issue is familiar from Ushan times. This too presumably derives from the time of U sha.

8:9 He who has less than two hundred zuz but conducts business with them so as to earn an income may not collect poor-offerings. Those who wrongly collect poor-offerings are subject to punishments at the hands of Heaven. Jacob Neusner - 978-90-47-41637-1 Downloaded from Brill.com02/08/2023 11:54:33AM via Universite degli Studi di Milano

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The distinctive agendum of issues of this tractate, like that of Tractate Terumot to which it is parallel, was set in Yavnean times. In that period each of the major questions that would, by the end of the Mishnah's formulation, be asked about this topic was in fact posed. Only in the Ushan period, however, do the questions first posed at Yavneh receive answers that reveal an overriding theory of law. This theory holds that the Israelite farmer's desire for the produce of his land triggers his responsibility to pay the agricultural gifts demanded by God. The poor people's acquisition of their share likewise is bound up in the act of harvest, in the needy individual's completing the actions purposely left incomplete by the farmer. The Mishnah's great contribution to Scriptural law thus is to look at Scripture's poor tax-paid according to Scripture in recognition of the fact that all Israel once was, and again might be, in need-as a tithe comparable to all other agricultural offerings and therefore susceptible to designation according to the same rules that apply in those other cases.

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CHAPTER THREE

THE DEVELOPMENT OF THE TRACTATES: DEMAI

l.

INTRODUCTION

Tractate Demai describes how individuals who themselves properly separate all required agricultural offerings are to assure as well that all of the food they eat outside of their homes or purchase to bring home has properly been tithed. Mishnah Demai thus indicates how foods are to be eaten in accordance with the same set of divine laws that controls their growth and processing. To accomplish this, the tractate indicates how one may determine whether or not someone else is trustworthy regarding tithing, legislates responsibility for tithing produce that leaves one's possession, and details the procedure for tithing produce about which there is a doubt whether or not it already was tithed. The problem of the tractate arises when one group living within a society determines to impose upon the act of eating mythic dimensions ignored by other members of their society. Tractate Demai, however, does not describe a self-contained sect living apart from, or even at the fringes of, the larger society. Mishnah Demai, that is, knows of no group comparable to the sect that existed at Qumran. Indeed, the very problem of this tractate-of how to deal with cases of doubt whether

or not food is prepared properly for consumption-can arise only in the context of continuing interaction among people with different food preparation habits. While concerned with intra-group relations, Mishnah Demai thus does not describe a self-contained sect. This is not entirely surprising, given the character of the rabbinic program and its clear intention to create of the people of Israel as a whole a nation living in holiness. The specific problem of the tractate arises not with Pharisees, as we might expect, but late in the formation of the law, when Ushans determine that the responsibility to tithe extends not only to what one prepares to eat in his own home but also to all produce the individual sells in the market, gives away as a gift, or even finds in the street and then discards (Sarason, Demai, p. 4). If, instead, each individual were deemed responsible to tithe only that which he prepares to eat in his

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own meal (as the majority of the materials in Tractate Maaserot would have it), no problem of doubtfully tithed produce could arise at all. Each individual would know exactly what offerings had been separated from his own food. In light of this fact, it will be quite clear in my description of the unfolding of the law that this tractate as a conceptual whole comes into being only in U shan times. While early authorities, including the Houses, know that certain Israelites fully tithe their produce and others do not, the U shans alone legislate that one must tithe all produce that leaves his possession. In this (late) concept lies the foundations of Tractate Demai, for only in light of it need each Israelite wonder whether or not a different Israelite has properly, or improperly, tithed produce. In light of their particular perspective, Ushans define a group of individuals who are trusted to tithe and with whom one therefore may do business and share hospitality. While continuing to live within the larger society, this group's interaction with outsiders is defined and limited by the basic premise that one cannot trust an outsider to observe one's own food laws, even if on a particular occasion that individual claims to have done so. In this regard too the Ushan materials in this tractate are striking. The general weight of the Yavnean legislation is to rule leniently, so as to allow those who tithe and those who do not to eat at the same table or otherwise to exchange produce. Ushan law, by contrast, strictly limits interaction between the haber and neeman and non-group members. In this way, Ushans define a society not envisioned by earlier rabbinic authorities and certainly not foreseen by Scripture's agriculture law. In this society, strict lines demarcate one group, which tithes, from another group which does not (or, which does so imperfectly). Those who tithe are set above the rest of the people of Israel. Indeed, in light of the Ushan insistence that they do all in their power to prevent others from eating improperly tithed foods, they are made responsible for the salvation of the nation as a whole. 1 1 The Ushan legal developments possibly work to harmonize the larger rabbinic claim to speak in the name of all of the people of Israel with the actual powerlessness of the early rabbinic group. By setting those who tithe above the rest of the people and by suggesting that the haber is responsible for the salvation of the Israelite nation as a whole, Tractate Demai perhaps offered the rabbinic estate a sense of power that the rabbis' actual position in society denied. Coming in Ushan times, this development would have marked the point at which the rabbis first realized that their larger program for the nation as a whole was not soon to be accepted. Unfortunately, lack of evidence concerning the structure and attitude of rabbinic leadership in the first centuries, as well as our lack of a clear picture of the rest of Israelite society, prevents

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A Demai BifOre 70

One idea goes back to the period before 70. Basic to the tractate as a whole is the Shammaite notion, ii.A.3: 1C-H, that an individual is responsible to prevent others from transgressing, for instance, by giving untithed produce as charity only to individuals known to tithe. While disputed by anonymous authorities, by Ushan times this idea leads to the pervasive notion that, to prevent others from transgressing, one must tithe all produce that leaves his possession. In this Ushan claim lies the foundation of the tractate as a whole. For, if it had been decided instead that each individual should tithe only that which he brings into his own home to eat, there would be no issue of doubtfully tithed produce at all (see Sarason, Demai, p. 2). While the Shammaite position does not itself constitute the generative problematic of the tractate (indeed, it assumes that people may give away untithed food), it thus presents the tractate's underlying legal proposition that one individual is responsible to prevent another from transgressing. Without this idea, Tractate Demai could never have been created.

B. Demai in the Time qf Yavneh Y avneans provide only a smattering of comments. These indicate their period's low level of inquiry into the topic of demai and reveal their general lack of interest in the problems created by membership in a clique that follows dietary restrictions considerably more stringent than those of the larger community in which the group exists. Indeed, regarding produce that might not have been tithed, Yavneans legislate a laxity totally uncharacteristic of the overall, Ushan, intent of the tractate's legislation. They allow a householder to distribute doubtfully tithed produce to poor people who eat at this table (ii.B.3: lA-B). This differs considerably from Ushan proscriptions, which prevent the giving of untithed produce to others and which indeed require the designation of all agricultural offerings that might not already have been separated from produce (iv.D.5:1). While certain problems considered in the Ushan stratum thus do arise in Y avnean times, it is clear that the focus and point of the tractate as a whole is determined by the later authorities.

this sociological explanation from leaving the realm of speculation. On the problem of extracting a social description from rabbinic documents, see Green, "Rabbinism," pp. 195-99.

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The Yavnean willingness to treat leniently cases of doubt is highlighted in their discussion of how one treats individuals who claim to have tithed but who are not known to be trustworthy. They rule that testimony of these people may be accepted in any circumstance in which the questioner has no alternative but to believe-for instance, if he otherwise will not be able to eat at all (iii.B.4:1). The topic is taken up by the Ushans, who reject the notion that, because of extenuating circumstances, one may believe someone who normally is not trusted. Instead, U shans develop a theory of evidence that judges the likelihood that the testimony is true. Unlike Yavneans, Ushans would rather go hungry than eat possibly untithed food. One minor point receives mention in the Y avnean stratum. The owner of a tract of land may take from a sharecropper offerings that are appropriate to himself (v.B.6:3, 4). If the owner is a priest or Levite, that is, he may take heave-offering or tithes that derive from the field. If the sharecropper is a priest or Levite he may take the same percentage of the field's offerings as he takes of the crop as a whole.

C. Demai in the Time qf Usha Ushan legislation defines membership in a group distinguished by observance of tithing and purity laws. 2 Ushans delineate how the group member is to follow these laws while living in a society comprised primarily of individuals who cannot be trusted properly to tithe or even to respect the group member's needs. The basic requirements for group membership are found at ii.C.2:2, 3, 4, 3:3E-G, 4, 5, and 6. These pericopae describe the neeman, an individual who undertakes to tithe all food that he eats or that, having come into his possession, he gives away. The Ushan stratum also describes a more stringent group member, the haber, who makes certain only to eat foods in a high level of cultic cleanness, as though they were being consumed in the Temple. This individual may not purchase possibly unclean foods from those not trusted to follow group laws. Group membership thus severely limits social and economic interaction with those outside of the group. 3

2 Cf., Oppenheimer, "First Tithe." Oppenheimer claims that the law of tithing found in the Division of Agriculture existed as a complete system so early as the time of Ezra and Nehemia. He therefore pushes the conflict between the haber and the am haares back into Second Temple times. See the followng note. 3 Oppenheimer, op. cit., pp. 77-80, shows in detail that the terms neeman and haber

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Descriptions of the means and extent of the permitted contact takes up the majority of the Ushan material before us. As might be expected in light of the nature of the issue, these rules are primarily practical in nature. Their single theoretical underpinning, deriving as we have seen from the period before 70, is that one must do whatever is possible to prevent someone else from transgressing, for instance, by eating improperly tithed produce. Let us examine the concrete cases in which Ushans view this as an issue. The responsibility to tithe all produce that leaves one's possession creates a problem for a haber who sharecrops land owned by an individual who does not normally tithe. Need the one who tithes separate agricultural offerings from all of the field's crop, so as to prevent the landowner from transgressing by eating untithed food? The U shan answer eases the potentially strained relationship between the two individuals by noting that the haber is obligated to tithe only produce that he has actually possessed and later determines to sell or give away. In the case at hand, the landowner's share contractually belonged to that landowner all along. The sharecropper need not tithe it because it never was his (v.C.6:l, v.D.6:7, 8-9, 10, 12). The case of a gentile land owner is special. Since gentiles are not deemed validly to own property within the land of Israel, the Israelite sharecropper of a gentile must tithe all of the harvest, as though it were from his own field (v.C.6:2). Group members must determine who is trustworthy to state that produce in the marketplace already has been fully tithed. Yavneans hold that most testimony that food has been tithed may be accepted. U shans, by contrast, provide a theory of evidence that tests the probability that the testimony is reliable. If testimony may be checked through inquiry to a trusted source, it is accepted as true (iii.D.4:5). All agree, further, that if the individual receives no personal gain by claiming that produce has been tithed, his word may be accepted (iii.C.4:7, iii.D.4:6). A related problem occurs when a haber gives an untrusted person food to prepare for the haber's own meal. The haber must tithe the food that he hands over for preparation, lest the individual take it and eat it

refer to members of religious and social groups distinct from the rest of the Israelite people. He fails, however, to prove his central claim, that these groups existed primarily in the time of the Second Temple. While such groups may well have existed in that period, the sources concerning the haber and the newan derive from no earlier than Ushan times.

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himself. This means of course that the haber must tithe a second time, when the prepared dish is served, in case it contains food other than that which the haber originally tithed and handed over for preparation (ii.C.3:3E-G, 3:4, 5, 6). Ushans develop a complete system for tithing produce about which there is a doubt whether or not it already is fully tithed. The assumption is that even those who do not tithe according to the rabbinic system do separate the biblical priestly gift. The other offerings are designated in a manner described at iv.D.5: 1. Ushans define the circumstances in which this tithing practice must be used. For instance, if the doubtfully tithed produce is subject to a further doubt whether or not it need be tithed at all (e.g., if it might have been grown as fodder), no additional tithing is required (i.C.l: 1, i.D.l :3C-D). Another problem concerns a case of doubt in which tithes are to be designated in one batch on behalf of a different batch. If tithes already had been fully removed from one of the batches, this operation is invalid (Terumot, i.A.l :5). Ushans therefore detail cases in which one may assume that all of the produce involved derives from the same source, such that it is equally tithed or untithed (iv.C.5:3-5, 5:9, iv.D.5:6, 7G-K, 7L-P, 8).

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THE HISTORY OF TRACTATE DEMAI

i. Produce that Is Not Tithed as Demai

The basic point of this tractate is that food about which there is a doubt whether or not it was completely tithed must undergo a secondary tithing process. This is to assure that all of the required agricultural gifts are in fact designated. The opening unit delineates the range of cases in which the secondary tithing procedure must be carried out. It holds that, if the doubtfully tithed produce does not clearly fit into the category of foods which must be tithed in the first place, we may dispense with the secondary tithing process. So long as there are two matters of doubt as to whether the food requires tithing, we rule leniently and do not require the separation of agricultural gifts. The question of whether or not food is subject to tithing at all pertains in particular to produce that might not be consumable by humans but which is, rather, intended as animal feed. The larger point thus is that the agricultural restrictions do not apply equally and automatically to all produce grown upon the land of Israel. These restrictions per-

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tain only to produce that Israelites normally deem useful as food. If that usefulness is in doubt, and the produce might have been tithed already, then that produce may be eaten without the further separation of agricultural offerings. This qualification of the basic theory of the tractate derives from the Ushan period, from which all of the rules of this unit derive. A. Bifhre 70 1:3G-I See i.D.l:3G-I.

B. The Time qf Yavneh C. The Time qf Usha 1: 1 Ten types of produce are subject to a leniency: If they are demai they are exempt from being tithed. Judah qualifies three of the list's entries

The things listed here are inferior types of produce, not generally valued or cultivated, and not commonly eaten. There is a question whether or not they meet the criteria of Maaserot, i. C .1.1 , for being liable to tithes at all. If there is a possibility that they already have been tithed, we therefore do not bother to tithe them as demai. The attribution here to Judah as well as the dependence upon a principle in Maaserot attested only in Ushan times gives us sound grounds for placing this construction in the Ushan stratum.

I :2 Second tithe separated from Demai produce is not subject to the restrictions that normally apply to produce in the status of second tithe, listed at Maaser Sheni, v.D.4:3, iv.C.3:5, viii.D.5: 12, iii.A.2:7 (with its developments at Y avneh and Usha). Meir and sages dispute the application to second tithe separated

The point is the same as in the preceding entry. Since the second tithe separated from demai-produce might not have the sanctified status of true second tithe, it is not subject to the stringencies that normally apply to second tithe. Involving Meir and dependent upon rules found in the Ushan stratum of Maaser

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from demai of the rule at Maaser Sheni, i.D.l :5D-E, an apparently Ushan rule.

Sheni, this formulation is firmly placed in the Ushan stratum.

D. Unassigned

1:3A-B Fodder, flour for dressing The point is the same as a.C.l: 1. hides and oil to be used in a lamp While normally edible, the items or for greasing utensils that is pur- listed here are not going to be used chased from an am haares is not as foods. Therefore we do not bother to tithe them as demai. We tithed as demai-produce need be certain only that produce that we eat has been tithed. There is no evidence that this illustration of M. 1:1 's principle derives from before the time of Usha, to which that principle is assigned. 1:3C-D Produce grown in Kezib and northward is exempt from being tithed as demai.

Kezib marks the northern border of the land of Israel. While it falls within the biblical borders of the land, it is not in practice like the rest of the land, since few Jews live there. We therefore rule leniently and do not require the tithing of produce purchased in that area if we do not know whether or not it already was tithed. This rule depends upon the Y avnean discussion of Kezib at Hallah, iv.B.4:8, and it clearly advances the larger theory of the preceding entry and i.C.l: 1. The rule therefore appears to derive from U shan times.

1:3E-F An am haares's doughoffering, mixtures of heave-offering and unconsecrated produce, produce purchased with second tithecoins and residue of meal offerings are exempt from tithing as demai.

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himself, in Jerusalem. Presumably in a case of doubt, heave-offering is not separated from this produce since, in all events, the produce itself will be eaten in the holy city, under the restrictions that apply to all holy food. The theory of this rule is different from that of the preceding entries, such that there are no grounds for interpreting its role within the logical unfolding of the law. l :3G-I Spiced oil-The House of Shammai declare it liable to tithing as demai. The House of Hillel deem it exempt.

The spiced oil will be "consumed" by being used as an unguent. The issue is whether this mode of consumption is comparable to "eating," such that the oil must be tithed as demai (= Shammaites), or whether it is comparable to the nonfood uses of produce listed at i.D.l:3A-B, which do not obligate tithing as demai (= Hillelites). This is a subtle clarification of an issue that appears to derive from Usha times (i.C.l:l and i.D.l :3E-F). Indeed, further discussion and refinement of the Houses' position takes place at Usha (Simeon b. Eleazar, T. 1:24, and Nathan, T. 1:27). This dispute therefore appears to date from U shan times.

l :4A-G Demai-produce that has There are two points. 1) Unlike not yet been tithed may be used utithed produce, demai is not strictly in an erub; they may recite a bene- forbidden for consumption. It therediction for it and invite others to fore may be treated as other edirecite the communal grace after bles and used in an erub. 2) Since eating it; they may separate tithes this produce may already have been from it naked and at twilight on tithed, the restrictions that apply the eve of the Sabbath; and they to the tithing of certainly untithed Jacob Neusner - 978-90-47-41637-1 Downloaded from Brill.com02/08/2023 11:54:33AM via Universite degli Studi di Milano

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may separate second tithe from it before first tithe.

produce do not apply to it, e.g., the order in which tithes are to be separated (Terumot, ii.D.3:6-7), or the requirement of a blessing (Terumot, i.D.l :6). In light of these two points, the larger theory of the pericope is that demoi produce is treated more like already-tithed food than it is like untithed produce. This theory is congruent with ii.B.3: lA-B, ii.B.4:3 and iii.B.4: 1, indicating that the present rule may derive from Y avnean times.

1:4H-I Oil with which the weaver lubricates his fingers is liable to tithing as demai. Oil that the woolcomber puts on wool is not liable.

The point is that of i.D.1 :3A-B and 1:3G-I. The oil put in the wool is not used as food and therefore need not be tithed as demai. What the weaver puts on his fingers, by contrast, enters the body as an ointment. It therefore must be tithed (= Shammaites, M. 1:3G-I). Like the pericopae the issue of which it parallels, this anonymous rule presumably derives from Ushan times.

2: 1 Certain foods known to derive This qualifies l.D .1: 3C-D. Since from the land of Israel and com- these items surely derive from the monly exported are subject to tith- land of Israel, they are clearly subject to tithes and, if in the status ing as demai in every place. of demai, must be tithed as such. Like M. 1:3C-D, this rule must derive from Ushan times. This conclusion is supported by the postUshan gloss of this pericope at T. 2: 1, in the name of Eleazar b. Yose.

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n. Tithing Produce that Leaves One)s Possession

The unit introduces one of the central ideas of this tractate, that an individual must take actions to prevent someone else from transgressing the law. The Shammaites, ii.A.3: l C-H, hold that a charity collector should give untithed food to those who will tithe and tithed food to those known not to tithe. In this way he assures that all individuals will eat tithed produce. While the reliability of the attribution of this specific case to the Shammaites is questionable, the idea the law expresses is assumed and carried forward in Y avnean times. Y avneans hold that one should not give untithed produce to any individual. This is the case unless that produce might already have been tithed (i.e., if it is in the status of demai), and unless it is certain that the recipient will complete the required tithing process (ii.B.3: lA-B). In Ushan times, strict adherence to these norms defines an individual as "trustworthy regarding tithing," such as to regulate and limit his interaction with all other Israelites. Now the scrupulous individual must tithe everything he buys, sells, eats or even picks up in the road and then drops. He takes full responsibility for his own adherence to the law, as well as for the adherence of others, insofar as he is able to tithe food that they will, or might, eat. Only in the case of well-defined business relationships may the individual refrain from tithing, e.g., if he is a wholesaler, since, by law, the retailer will tithe (ii.C.2:4, 5). In these cases as well as in day-to-day social contact with the people around him (see ii.C.3:4-6), the individual's actions are limited by his desire to follow the law and are controlled by his concomitant responsibility not to be party to a situation in which others might transgress. This unit thus charts the development of a corpus of laws that only in Ushan times is made to define membership in a sect devoted to tithing and cultic cleanness (ii.C.2:3). This fact is of central importance when we consider that, in the period between two and three hundred years before U shan times, the Pharisees, later seen as the founders of the rabbinic movement, likewise distinguished themselves within the rest of the people of Israel on the basis of their observance of tithing restrictions and rules of purity. It appears clear that, whatever the character of the Pharisaic table fellowship, its rules of conduct and modes of selfdefinition were not taken over by the authorities cited in the Mishnah. The materials before us have only a very general legal foundation in the period before 70. Yavneans, and primarily Ushans, by contrast, are busy defining proper adherence to the laws of tithing and purity.

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Their definition, not one inherited from pre-rabbinic times, ultimately defines membership, as a haber, in the rabbinic sect composed of individuals who are trusted to tithe all produce and to eat their own secular food in a state of cultic cleanness. A. Bqore 70 3: 1C-H The House of Shammai: Charity-collectors give what is tithed to those who do not tithe, and give what is not tithed to those known to tithe. Sages: Distribution of charity is done indiscriminately.

The issue does not involve demaiproduce but rather food that the charity-collector knows is or is not tithed. The question is whether one takes action to avoid a violation of the law (= the Shammaites), or simply does nothing (= sages). Since the specific question discussed here still is moot at Usha (see Meir, T. 3: 17), it is unlikely that it is authentic in the mouth of the Shammaites. Still, the underlying belief of the Shammaites, that one should prevent others from transgressing, is a basic datum of this tractate (see, e.g., ii.B.3:1A-B, ii.C.2:2-5 and ii.D.3:2). It must derive from early in the development of this tractate. Cf., Maaser Sheni, vi.C.5:1. 4

B. The Time qf Yavneh 3: lA-B Demai-produce may be fed to the poor or transient guests. Gamaliel would feed his workers demai-produce.

The theory here is very different from that found in the Ushan stratum, which requires the individual to tithe all produce that leaves his possessiOn.

4 The parallel dispute between the Hillelites and Shammaites, at Shebiit, ii.A.4:2A-H, 1-K and 5:8, further supports placement of this issue in the period before 70.

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C. The Time qf Usha 2:2 One who undertakes to be trustworthy tithes what he eats, sells or purchases and does not accept the hospitality of an am haares. Judah: He may accept hospitality.

One who is "trustworthy" scrupulously observes all of the rules of tithing. Produce purchased from such a person therefore is not considered demai. This definition is assigned to the Ushan stratum on the basis ofJudah's disputing gloss.

2:3 One who undertakes to be a haber does not sell any produce to an am haares, does not buy from him wet produce (which is susceptible to uncleanness), does not accept the hospitality of an am haares or offer hospitality to an am haares who is wearing his own, unclean, clothes. Judah: Also: he should not raise small catde, make many vows, defile himself through contact with the dead or minister in the house of study (alt.: banquet hall).

The haber differs from one who is "trustworthy" in that, in addition to following the tithing laws, he is careful to consume unconsecrated food in a state of cleanness, as though he were a priest eating heave-offering. He further does not aid others who transgress. Judah suggests four more requirements, only one of which~ the rule regarding corpse uncleanness~has to do with the purity laws. As at M. 2:2, his attestation serves to place this unit in Ushan times. T. provides further evidence of the late provenance of this discussion. See T. 2:2 and 3 (Meir), T. 2:5 (Yose b. Judah), T. 2:7 (Simeon), T. 2:9 (Meir, Judah, Simeon and Joshua b. Qorha), T. 2:10 (Simeon), T. 2:13 (Abba Saul), T. 2:14 (Simeon b. Gamaliel) and T. 2:17 (Simeon b. Eleazar). C£, the Houses at T. 2:12, apparently pseudepigraphically speaking on a secondary issue of the type prevalent in Ushan times.

2:4 Bakers must separate from de- In accordance with M. 2:2, the mai that they sell only heave-offering individual should assure that what of the tithe and dough offering. They he sells is completely tithed. If the

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need not separate second tithe. Retailers must separate all three offerings. Wholesalers need not remove any of them. They may sell demaiproduce.

produce is demai that means separating heave-offering of the tithe, dough offering and second tithe. (The am haares from whom the produce originally was purchased is assumed to have separated heaveoffering.) The baker need not separate second tithe, however, since it would be extremely burdensome for him to have to take large quantities of second tithe-dough, or coins, to Jerusalem to eat there. Wholesalers sell to retailers, who will themselves tithe the produce. The wholesaler himself therefore is exempt. This unit is assigned to Usha because of the continuation of the issue, in the following entry, which clearly attests the whole to Ushan times.

2:5 Meir: Whatever usually is sold This is secondary to the material in bulk always is subject to the rule in the preceding entry. Meir wants for bulk sales (M. 2:4), even if it to avoid confusion that could result should be sold in a small quantity. in produce's being tithed twice or The same applies to what normally not at all. Yose's point is the same is sold in small quantity that is sold as that made before. T. indicates in bulk. Yose: Baskets of figs, grapes. further discussion of the issues of and vegetables are sold without these pericopae to have taken place in Ushan times. See T. 3:10-ll tithing. (Meir, Nehemiah), T. 3:12 (Ishmael b. Yohanan b. Beroqah and Simeon b. Gamaliel) and T. 3:13 (Meir). 3:3E-G Anything that a man is not permitted to sell as demai he is not permitted to send to his friend as demai. y ose permits if the produce is certainly untithed and he informs him.

Sending is equivalent to selling, such that the rules of ii.C.2:4 and 5 apply. Yose's comment, which serves as a second reason for assigning this rule to Usha, is self-evident. If the receiver of the produce is

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informed that it is untithed, he will not be mislead and transgress by not himself tithing. Secondary discussion, at T. 3:14, likewise is in the name of an Ushan, Simeon b. Gamaliel. 3:4 One who brings tithed produce to a Samaritan or am haareswhen he reclaims the produce it is deemed still to be certainly tithed. If he leaves produce with a gentile, when he reclaims it, it is deemed either to have been exchanged with produce of an am haares, such that it is demai, or with the gentile's own produce, such that it is certainly untithed. Simeon: It always is treated as demai.

The am haares and Samaritan are assumed to respect the other person's scruples and to treat his tithed produce with care, so as not to mix it with other, untithed or doubtfully tithed, produce. The gentile is not assumed to be careful in this way. The continuation of this discussion, in the following entries, likewise is assigned to Ushan authorities.

3:5 One who gives produce to an The innkeeper is suspected of exinnkeeper to prepare for him tithes changing the guest's produce for what he gives and that which he food of inferior quality. Therefore receives back. Y ose: He tithes only the guest must tithe before eating. what he receives. The anonymous notion, that he also must tithe what he gives over, is based upon ii.C.2:2. Yose disagrees in this case and holds that we need not take responsibility for tithing if the other person will acquire the untithed produce through deceit. Dependence upon M. 2:2 and the attribution to y ose provide firm grounds for placing this rule at Usha. 3:6 One who gives his tithed produce to his mother-in-law, an am haares, to prepare for him tithes what he gives her and what he

As Judah explains, the mother-inlaw is suspected of substituting her own, better, produce if that of the owner is spoiled or ruined while

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receives m return. Judah explains why.

she is preparing it. The point is the same as at M. 3:5, and we thus have good reason for placing this rule in Ushan stratum.

D. Unassigned 3:2 He who trims away vegetable- The individual must tithe produce leaves to lighten his load should that he owns and that leaves his tithe them before throwing them possession, lest someone else take away. If he purchased vegetables it and eat without tithing. Reflecting and wishes to return them, he the concerns of ii.C.2:2, these rules presumably date to the Ushan peshould first tithe them. riod. The first is attested to that period by Yose, T. 4:2. 3:3A-D One who finds produce on the road and takes it to eat but then decides to put it down must tithe. If he took it but did not intend to eat it, he need not tithe.

The concern is the same as in the preceding entry. What this rule adds is that intention is efficacious in determining whether or not produce is deemed food, such that it is subject to the tithing laws at all. Like M. 3:2, this item presumably derives from U shan times.

iii. Believing Those VVho Are Not Normal[y Trusted An individual who is scrupulous about eating properly tithed foods must be able to determine who he may trust to prepare food for his consumption. His relationship with other haberim presents no problem. They follow the same rules that he does. But the Mishnah is clear that the haber lives primarily among individuals who are not trusted to tithe. The question is under what circumstances the haber may accept the claim of one of these people to have tithed or to know individuals who do properly tithe. The problem receives minimal attention in Yavnean times. Yavnean authorities state that, in a case of necessity, the word of one who normally is not trusted may be accepted. On the Sabbath, for instance, the haber may accept testimony that food he purchased before the holy-day was tithed. Since he may not tithe on the Sabbath, the alternative would be not to eat. After the Sabbath, however, the

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haber must tithe. It no longer is necessary to trust the am haares's word, and, therefore, the haber may not do so (iii.B. 4: 1). This Yavnean approach is logically weak, for it declares that the acceptability of testimony depends upon extenuating circumstances, not upon whether or not the testimony is likely to be true. Ushan legislation corrects this problem by giving criteria for judging the intrinsic reliability of testimony. We trust an individual who will not gain from his words (iii.C.4:7, iii.D.4:6) or whose testimony can be verified (iii.D.4:5). In this way Ushans develop clear and logical standards for relationships between those who always properly tithe and those who do not. A. Bifore 70

B. The Time qf Yavneh 4: l He who purchases produce from one who is not trustworthy to tithe inquires of him on the Sabbath and may eat the produce if the vendor states that it indeed has been tithed. But after the Sabbath the man must tithe before eating the produce. Simeon of Shezur: If heave-offering of the tithe separated from demai-produce falls back into the batch, one may ask the vendor whether or not the produce already had been tithed and may accept his word.

The two cases make the same point. In an emergency situation-i.e., if the individual cannot eat because tithing is forbidden on the Sabbath, or if all of his produce will be deemed to take on the status of heave-offering because it has been mixed with heave-offering of the tithe-we rely on the word of one who normally is not trusted regarding the tithing laws. The concept is assigned to Y avneh on the basis of the attribution of this theory to Simeon of Shezur along with the U shan development of these concerns at T. 5:2 (Rabbi and Simeon b. Gamaliel) and at iii.C.4:7.

C. The Time qf Usha 4:3 Eliezer: One need not designate poorman's tithe from demaiproduce. Sages: He must designate it but need not separate it.

Eliezer holds that since the tithe will not be distributed anyway, we may dispense as well with the designation. Sages require the designation, so that the tithing procedure

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for demai-produce will formally parallel that for certainly untithed produce. Since this Eliezer is attentive to the extenuating circumstance, that the tithe will not be distributed anyway, I assume that it is an Ushan, not the Yavnean Eliezer b. Hyrcanus, who consistently refuses to take into account extenuating facts. See e.g., Terumot, iv.B.S:l-3. 4:7 Ass-drivers who entered a city and made mutually beneficial claims are not believed. Judah: They are believed.

The anonymous view holds that the individuals are in collusion, each recommending the other's produce. This is parallel to the view of Rabbi, T. 4:30. Judah holds that, while we may not accept an individual's testimony concerning himself, we in all events rely upon his statements concerning someone else. Judah presumably assumes that, if the individual wished to lie, he would have made up something to benefit himself directly. This same opinion occurs in the mouth of Simeon b. Gamaliel, T. 4:40. It develops the Yavnean concern of iii.B.4:1. Both substance and authority cited therefore provide grounds for placing this at Usha.

D. Unassigned 4:2 By means of a vow, someone The case is parallel in principle to not deemed trustworthy in the mat- iii.B. 4: 1. The individual who tithes ter of tithing compels his friend, is in a position in which he has litwho observes the laws of tithes, to tle choice but to rely on the other eat with him on the Sabbath. Dur- person's word. He is allowed to do ing the first Sabbath the friend may so. We assume that in subsequent eat with him, so long as the host weeks the guest will have the oppor-

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states that the food has been properly tithed. In subsequent weeks, the friend may not rely upon the host's word, but must himself tithe.

tunity to see to the tithing of the food before the onset of the Sabbath. Since there is no real need to do so, he no longer may trust the other individual's claim.

4:4 One who designates heaveoffering of the tithe or poorman's tithe during the week should not actually separate and distribute them on the Sabbath. But he may feed them to a priest or poor person who regularly eats with him on the Sabbath, provided that he informs them that they are eating tithe.

The separation and distribution of agricultural offerings is an act distinct from the designation of these things. The separation and distribution therefore may not be carried out on the Sabbath. If the recipients of these offerings eat at the individual's house, there is no physical separation. This procedure therefore is allowed on the Sabbath. There is no way of placing this unattested material within the unfolding of the tractate's law.

4:5 If one says to someone who is not deemed trustworthy to separate tithes, "Purchase produce for me from someone who is trustworthy"-the agent is not later believed. If he told him, "Purchase for me from so-and-so"-the agent is believed.

To begin with we do not trust the agent regarding matters of tithing. Therefore we cannot rely on him to have carried out general instructions to buy from someone who tithes. But whether or not he purchased from a specific individual can be verified, such that in the second case we have every reason to trust him. The Ushan, Yose, attests this principle to Ushan times,

T. 5:3. 4:6 He who enters a city and asks, The principle operative here is stated "Who here is trustworthy"-some- explicitly by Simeon b. Gamaliel, one who says, "I am," is not T. 4:30. We do not believe a man's believed But if he names someone testimony concerning himself with else, he is believed. If the person regard to a matter in which he is who is named then sends the buyer suspect. We do however rely upon

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back to the original individual, he too is believed.

IV.

his testimony concerning someone else. Like the preceding entry, this one presumably derives from Ushan times. It is parallel to the view assigned to Judah, iii.C.4:7.

Separating Tithes .ftom Distinct Batches

if Produce

Even individuals who do not separate all of the required agricultural gifts might separate certain of the offerings. The problem is how the haber goes about removing the rest of the required tithes. He must be careful not to separate offerings that already were removed (see Terumot, i.B.l :5). Yet he also may not risk leaving any of the required offerings in the produce. A solution to this problem is developed in the Ushan stratum, where we also find a complete strategy for tithing demai-produce. Important for our historical evaluation of the Division of Agriculture is the fact that, as in unit i of this tractate, definition of and legislation for a category of produce called demai occurs very late in the formation of the law. A. BifOre 70 B. The Time

if Yavneh

C. The Time

if Usha

5:3 Meir: One who buys bread This rule depends upon Terumot, from a baker who is not trusted i.B.l :5. Tithes may not be sepaconcerning tithes may separate tithes rated from produce that is liable from warm bread on behalf of cold on behalf of produce that is not and from diverse molds. Judah for- liable, and vice versa. Meir simply bids, lest the wheat derives from holds that all of the baker's prodifferent sources and some already duce will have derived from the has been tithed. Simeon forbids same source, such that we need with regard to heave-offering of the not worry about this prohibition. tithe but permits with regard to Judah's view is as given. Simeon dough-offering. agrees with Meir, but notes that, since the produce did not become susceptible to dough offering until it was made into dough, all of this

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baker's dough will be equally liable to that offering. 5:4 Meir: If he purchased bread from a bread store, he must separate tithes from each mold individually. Judah: From one mold for all, except in the case of a monopolist.

In the case of the bread store, the wheat certainly derives from different sources, such that Meir wishes tithes to be separated from each individual loa( Judah's rule for the bread store inexplicably contradicts his view of M. 5:3.

5:5 He who purchases from a poor man, or a poor man to whom they gave slices of bread, separates tithes from each item individually. If it is dates or dried figs, he takes tithes from the whole mass. Judah: This applies only if each individual gift of produce was large.

The first rule makes the same point as the preceding two entries. In the case of the figs, the mixture of the produce from the different sources is uniform, such that each part of it is equally susceptible to or exempt from the separation of tithes. Judah requires large quantities, so that we can be certain that there is an even mixture. Dependent upon the preceding rules and again citing Judah, this pericope is firmly placed in the Ushan stratum.

5:9 They separate tithes from the produce of Israelites on behalf of the produce of gentiles or Samaritans or vice versa. They separate tithes from the produce of one Samaritan

Gentiles do not tithe at all and Samaritans do not tithe that which they sell in the market. Since all of this produce surely is subject to tithes, 5 tithes may be taken from

5 All produce grown upon the land of Israel is subject to the separation of heaveoffering and tithes, whether it is grown by an Israelite, gentile or Samaritan. The theory found throughout the Division of Agriculture is that ownership of property within the land of Israel by a non-Israelite is null. The land still is deemed to be Israelite property and, as part of the gift of God to the people of Israel, produces crops subject to tithes. Certain authorities, however, hold that produce separated by gentiles does not take on the status of agricultural gifts. This is because the gentile is not understood to have benefited from God's gift of land and therefore does not himself owe God a share of the crop. See Chapter Six, note 9.

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on behalf of the produce of a different Samaritan. Eleazer (alt.: Eliezer) prohibits.

the Israelite-batch on behalf of the gentile- or Samaritan-owned produce. The issue that concerns Eleazar is whether or not Samaritans indeed do not tithe what they bring to the market. If some do, we must be careful not to take tithes from one Samaritan's produce for another's. While the attribution here is not unambiguous, the commonality of this unit's issue with that of the other, Ushan, materials of this unit provides solid grounds for assignment to Usha. See also T. 5:21-23.

D. Unassigned 5: 1 He who purchases a loaf of bread from a baker who is not trusted concerning tithes, how does he tithe it? + Formula for the tithing of demai-produce.

We assume that even one who is not trustworthy has separated heave-offering. The purchaser therefore must now separate produce sufficient for first tithe, heaveoffering of the tithe and dough offering. Second tithe is designated and redeemed with coins. While the notion that demai is produce from which we can be certain only that heave-offering was separated is a fundamental datum of the tractate, there is no evidence that this description of how such produce is to be tithed derives from an early period. Other specifics of how demaiproduce is tithed are moot at U sha, iv.C.5:3, 4 and 5, indicating that the present description probably is late.

5:2 He who wishes to separate from fully untithed produce heave-

The problem is the same as in the preceding entry.

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offering and heave-offering of the tithe together, in a single act of separation, does as follows .... 5:6 One who purchases from a The point is the same made at wholesale dealer and returns and iv.C.5:4-5, placing this rule in the purchases more must separate tithes Ushan period. The second rule that, individually for each batch. The since he receives no benefit, the wholesaler is believed to say that wholesaler is believed, likewise apthe food derives from the same pears to be Ushan. See iii.C.4:7 supply, such that tithes may be sep- and iii.D.4:5 and 6. arated once for all of the produce. 5:7G-K One who purchases from a householder and returns and purchases more may take tithes at once for all of the produce.

Since the householder sells only his own produce, there is no issue of some of the produce's already being tithed and other not. Like the preceding entry, this presumably derives from U sha.

5:7L-P If a householder in the market-place is selling his own produce, they separate tithes from produce from the gardens of others, each item must be tithed individually.

The points ofM. 5:6 and M. 5:7GK are correlated as a single rule. Dependent upon those Ushan laws, this construction can derive from no earlier than U shan times.

5:8 If he purchases fully untithed produce from two different vendors, he may take tithes from one portion on behalf of the other.

The rule is rather obvious on the basis of what has preceded.

5: 10 They may separate heaveoffering from produce grown in a perforated pot on behalf of produce grown in the ground and vice versa. If the pot was not perforated, his separation is valid, but he must separate heave-offering again

A perforated pot is like the earth, such that produce that grows in it is subject to tithes. What grows in an unperforated pot is not subject. A subtle continuation of the issues discussed at iv.C.5:3-5 and 9, these rules are Ushan or later.

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5:11 If one separated heave-offer- Since demai-produce is assumed ing from demai-produce for other throughout this tractate not to be demai-produce, or from demai for subject to the separation of heavewhat is certainly untithed, it is valid, offering at all, the point of this peribut he must separate heave-offering cope is unclear. See Sarason, Demai, pp. 198-200. agam. v. Tithing Commonty Owned Produce

The present materials qualify the principle of unit ii, that one should tithe whatever leaves his possession. We now learn that this responsibility extends only to produce that the individual actually owns. A sharecropper, for instance, need not tithe the portion of the crop that belongs to the landowner. He incurs responsibility to tithe only if he pays the field-owner's share out of his own personal produce, for example, using food that was grown in a different field. Since that produce belongs to the sharecropper himself, he must tithe before giving it away (v.C.6: 1). The sharecropper also must tithe all the produce if the landowner is a gentile. The non-Jew's ownership of property in the land of Israel is not recognized, such that the share-cropper himself is deemed the land's true owner (v.C.6:2). These rules, which constitute the central focus of this unit, derive from Ushan times. Placement there is on the basis of attributions and the material's clear relationship to the Ushan principle of unit ii. The Yavnean material in unit v addresses a different issue. Yavneans dispute whether an owner or sharecropper has preemptive rights to agricultural gifts that derive from the common produce and that are appropriate to him. For example, may a landowner who is a priest take for himself all of the heave-offering that derives from produce grown in the field (v.B.6:4)? Unlike in the Ushan materials just described, Y avneans do not recognize a sharp distinction between what is owned by the landowner and what belongs to the sharecropper. The weight of the law therefore is that the field's owner may take whatever tithes are appropriate to him. The particular issue, however, remains moot in the Ushan period (v.C.6:5), such that the relationship between it and the other materials in the U shan stratum is not clear. The impression that work on the specific topic of demai-produce is confined to the period of Usha is reinforced by the final materials of this tractate, v.D.7:1-5. Apparently deriving from Ushan times, these rules provide further central details of the tithing procedure for produce about which there is a doubt whether or not it previously was tithed. Jacob Neusner - 978-90-47-41637-1 Downloaded from Brill.com02/08/2023 11:54:33AM via Universite degli Studi di Milano

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A. Bifore 70 6:6 The Shammaites say: One may sell olives only to a haber, who is trusted to maintain them in a state of cleanness. The Hillelites say: Also to one who separates tithes, even if he is not trustworthy regarding matters of cleanness

B. 7he Time

rf Yavneh

There is no evidence that this issue arises before U shan times, when the definition of the haber first is discussed. The Hillelite position is out of phase with the law of this tractate as a whole. It assumes that the individual will sell the olives before separating tithes from them, a flagrant violation of ii.C.2:2, with which the Shammaites, by contrast, accord. 6

6:3 A priest or Levite who share- The question of the division of procropped a field of an Israelite- duce grown in a share-cropped field they divide between them the heave- is initiated here and, at U sha, will be offering and tithes just as they divide developed for the issue of the tithing the other produce. Eliezer: No. The of the produce, v.C.6: 1 and 2. heave-offering or tithes belong to the priest or Levite. 6:4 An Israelite who sharecropped The field's owner has preemptive in the field of a priest or Levite- rights that allow him to take prothe heave-offering and tithes belong duce that is specifically appropriate to the field's owner. Ishmael: If a to him. Sages disagree concerning provincial share-cropped a field for the case of the second tithe, for ajerusalemite, the second tithe be- the reason given. Furthering the longs to the latter individual. Sages: issue introduced above, and attested The sharecropper himself may by Ishmael, this pericope clearly belongs in the Yavnean stratum. It bring it to Jerusalem and eat it. is further developed at v.C.6:5.

C. 7he Time

rf Usha

6: 1 One who sharecrops a field may give the landowner his share out of untithed produce. If he leases

The theory of ii.C.2:2, 4, 3:3E-G, 5 and 6, that one must take actions to assure that another individual

6 Unfortunately there is no way of testing Sarason's suggestion, Demai, p. 226, that the Hillelite view might, "echo ... an earlier, subsequently discarded, conception of tithing practices." Cf., Neusner, Judaism, pp. 287-288.

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the field, he pays the rental out of produce from which heave-offering already has been separated, at the threshing floor, but he need not remove tithes. Judah: If he gave him produce of a different kind or from a different field, he must separate heave-offering and tithes.

does not eat untithed produce, does not apply in these cases. In the case of the sharecropper, the landowner's share is deemed his possession all along. The sharecropper therefore need not tithe it. The rent paid by the lessee, likewise, is a set amount of produce that belongs to the leaser all along. Heave-offering must be separated at the usual time, at the threshing floor, but the lessee is not responsible for paying the tithes. Judah clarifies the point. Produce paid from a different kind or from some other field is fully the possession of the sharecropper. If that individual is a haber he must tithe it before turning it over. Qualifying an U shan principle and attested by Judah, this rule is firmly placed in the Ushan stratum.

6:2 If land is leased from a gen- The gentile's ownership of proptile, heave-offering and tithes must erty in the land of Israel is not recbe separated from the produce paid ognized. It is as though the land as rent. Judah: He who sharecrops were owned by the Israelite tenant a field once owned by his father farmer himself. Therefore all probut now possessed by a gentile pays duce which is paid out from the the gentile's share with fully tithed field must be tithed, in accordance with the rules of section ii. For the produce. same reasons given in the preceding entry, these rules are firmly placed in the Ushan stratum. Discussion of these issues in T. also is in the names of Ushans: Simeon b. Gamaliel (T. 6:1 ), Simeon (b. Yohai, T. 6:2) and Meir (T. 6:3). Cf., T. 6:7, which has Y ose b. Meshullam and Nathan in the name of Eleazar Hisma, on a parallel issue.

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6:5 He who sharecrops olive trees for oil-they divide between them the tithes as well as the unconsecrated produce. Judah: If the owner is a priest or Levite, the tithes belong to the owner.

111

This is a secondary development of v.B.6:4. Once the crop has been processed for oil, the field-owner no longer has a preemptive right to take that which he wants. Now he and the sharecropper equally divide the tithes. Judah disagrees with this reasoning and follows the rule given at v.B.6:4.

D. Unassigned 6:7 Two men who gathered their The individual who tithes is respongrapes into a single winepress-the sible only to tithe that which one of them who separates tithes belongs to him. Therefore he tithes removes the required offerings from the wine that he takes from the his own share of the wine as well press. But he also must be certain as for his grapes, wherever they that his grapes, which he brought might be in the mixture. to the press, have been tithed. Otherwise it is as though he gave untithed produce to the other person. This, we know, is forbidden (section ii). Since this issue is derivative of a theory propounded at Usha (ii.C), and found here as well in the Ushan stratum (v.C.6:1, 2, 5), it must derive from Ushan times. 6:8-9 Joint owners of a fieldthe one who tithes may say to the other, "You take the produce in such-and-such a place and I will take the produce elsewhere." But they may not divide by type of produce.

Each of the men has an equal share in all of the crops. So as to prevent the one who tithes from needing to separate the offerings required for all of the produce, he designates a specific share of the crop as his own. He need tithe it alone. Since they have equal ownership of each kind of produce, however, they cannot divide the produce by kind. Taking barley, for instance, would not exhaust the ownership of wheat

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of the one who tithes. Like the preceding entry, this derivative problem derives from U shan times. 6: 10 Same case as M. 6:8-9 for a proselyte and his gentile brother.

The theory is the same as in the preceding: The individual may designate certain property to be his sole possession and leave the rest as the property of the joint owner.

6: 11 One who sells produce in The pericope is substantively unreSyria and says, "It is from the land lated to the present context. It fits of Israel," is believed. If he subse- topically in section iv, on conditions quently said, "It is tithed," he is under which we believe those who believed, for the mouth that for- normally are not trusted. It does bade is the mouth that permitted. not however depend upon or carry forward the specific theory of any of the material in that section, such that placing it in the logical unfolding of the law is impossible. 6: 12 A haber who makes a purchase part of which is for an am haares may give the am haares his share without tithing it. But if, once he determined what portion was for the am haares, the produce became mixed up, the haber must tithe all of the items.

The theory is the same as at M. 6:8-9. The haber has ownership of, and need tithe, only that which he designates for himself. But once he makes the designation, it is binding and cannot be changed. Like M. 6:8-9 this belongs in the Ushan stratum.

7: 1-5 Description of the tithing procedure for individuals who do not trust those who have invited them for a meal, for laborers, and for those who purchase from Samaritans. The point is that the oral designation validly can be made the day before the actual separation of the required offerings.

This differs from the description at iv.D.5:1-2 only in that here the individual is unable to measure out and separate the required tithes at the same time that he recites the designation-formula. The material at M. 5:1-2 appears to be Ushan, and there likewise is no evidence that M. 7: 1-5 was known before Ushan times. Discussion in T. is in

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the name ofUshans,Judah (T. 8:5), Yose, Meir, Judah and Simeon (T. 8:6-7) and Yose (T. 8:12). 7:6 A designation of the tithes required of one batch to be in a different batch is valid. If he said, "The tithes of this one are in that one and vice versa," only the first batch is tithed. If he said, "The tithes of each are designated in the other," tithes validly have been designated for both.

This development of the preceding discussion of the proper formula for designating tithes presumably derives from the U shan stratum. Each aspect of the individual's oral designation is effective immediately upon its being uttered. Thus in the middle case, as soon as he states that the tithes required of the first batch are in the second, the first batch is fully tithed. It no longer can be used as a source of the tithes required of the second batch. This problem does not arise in the other two cases described.

7:7 Produce from which heave- The problem is of the same sort offering has been separated and introduced in the preceding entries. produce from which heave-offering has not yet been separated that became mixed together-how does one separate heave-offering and tithes from the mixture? Same problem for case in which fully tithed produced is mixed with first tithe and the individual needs to separate heave-offering of the tithe. 7:8 He who had ten rows containing ten jugs of wine each and said, "One outside row is made first tithe," and it is not known which row it is, takes two jugs at diagonal corners, etc.

While thematically different from what has preceded, the issue-taking tithes only from produce that is subject to the specific offeringsremains the same. I assume that, along with the preceding entries, this derives from Ushan times.

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III.

CoNCLUSION

Distinguished for their adherence to the laws of tithing and cultic purity, the Pharisees from the period before 70 generally are regarded as the forbears of the Mishnah's rabbis. It therefore is surprising that, in Tractate Demai, materials from the period before 70 are particularly scarce. For this tractate 1) defines a group of individuals who tithe and 2) regulates the relations between those people and others who do not follow the agricultural restrictions. These are exactly those matters that we believe concerned the Pharisees most. Yet only a single, very general, comment of any importance may be traced back to the House of Shammai. They state that each individual is responsible to prevent another person from transgressing. As we have seen, this one rule hardly can be said to account for the large corpus of law that, in the Ushan stratum of this tractate, sets out the requirements for living a life dedicated to those ideals assumed to have been upheld, in the period before 70, by the Pharisees. The absence of rules from the period before 70 has important implications for our understanding of rabbinic intellectual history. It implies that, whatever the claims of later rabbinic authorities, the early rabbinic movement did not inherit and make use of a substantial corpus of law and tradition deriving from the Pharisees. So far as the important evidence of Tractate Demai, and, in fact, the Division of Agriculture as a whole, indicates, early rabbinic legislation does not take up and develop in concrete ways principles developed while the Temple stood. The interests and concerns of the Pharisees and later rabbis may well have been similar. As for specific laws, however, the rabbinic movement began afresh. Later rabbinic masters presumably claimed Pharisaic lineage so as to substantiate their claim to be authoritative teachers within the people of Israel. In doing this they adopted as their ancestors the group that non-rabbinic and rabbinic sources after 70 agree had had the greatest power and esteem among the people. The later rabbinic movement's description of its origins thus is designed to lend authority to a movement that, as this tractate's description of general Israelite tithing practices shows, had little power on its own to impose its will upon the nation as a whole. 7

7 I elaborate upon this conclusion, as it relates to the Division of Agriculture as a whole, in Chapter Twelve.

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CHAPTER FOUR

THE DEVELOPMENT OF THE TRACTATES: KILAIM

l.

INTRODUCTION

The tractate concerns the Scriptural prohibitions against commingling different kinds of plants, animals and fibers. Based upon Lev. 19: 19 and Dt. 22:9-11 's demand that different species be kept separate, the tractate questions what constitutes a species and asks how different classes of things are to be kept separate from one another. The point is that God created the world in an orderly manner. These rules assure that, in using the resources of that world, humans will maintain it in a proper state of orderliness. Notably, in the priestly conception that stands behind Lev. 19:19, order is a precondition for holiness. In Tractate Kilaim, the Mishnah's authorities thus describe in concrete terms how Israelite farmers are to raise their crops in conformity with the world's original order. By doing this, Israelites prepare the world for a sanctification by God comparable to the act of consecration that completed the earth's original creation (Mandelbaum, p. 3). The most basic question left open by Scripture concerns how different species are to be kept separate. This issue attracts the attention of the Houses and continues to constitute the focus of concern through the conclusion of the formation of the tractate's law. This is not to say, however, that the tractate is the creation of the early period. For while its issue is known by the time of the Houses, the proposed answer shifts dramatically in the period of Usha. Ushans begin anew to probe the issue addressed by previous generations of authorities. As a result, the tractate presents two strikingly different answers to the question of how the Israelite is to grow crops in conditions of holiness. These two answers correspond to divergent notions of what ultimately constitutes the source of holiness in the world. The Houses and Yavnean authorities define a species in light of botanical characteristics. They hold that Scripture's law has been transgressed whenever these different classes have been sown together within a single, geographically defined, field. The early authorities are concerned

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solely with the physical character of the mixture of different classes. This means that they understand orderliness to be a preordained condition of the world. By abiding by natural barriers among different kinds of plants, animals and fibers, and through attentiveness to the geographical boundaries that separate one plot of land from another, the Israelite maintains the orderly-and therefore holy-state in which God originally created the world. Pervasive before 70 and at Yavneh, the notion that the world contains within itself a pre-established order is abandoned at Usha. Ushans instead hold that, through intentions and perceptions, Israelites themselves impose order upon the world. Their attitude towards different types of plants determines whether they are to be deemed Diverse Kinds. Their perceptions of different crops growing together in a single field establishes whether those foods have been planted as a confused, and therefore forbidden, mixture, or in an orderly, and hence permitted, pattern. According to Ushans, that is, the Israelite himself, "both defines what constitutes a class and determines how to keep the different classes distinct from one another. Man thus imposes upon an otherwise disorderly world limits and boundaries which accord with human perception of order and regularity .... [W]hat appears to man as orderly becomes identified with the objective order of the world" (Mandelbaum, p. 1). In this view, then, Israelites themselves bring the potential for sanctification into an otherwise disordered world. Before examining the specific rules through which each period's authorities make their point, let us quickly review the Scriptural foundations of the tractate. You shall keep my statutes. You shall not let your cattle breed with a different kind; you shall not sow your field with two kinds of seed; nor shall there come upon you a garment of cloth made of two kinds of stuff. (Lev. 19: 19) You shall not sow your vineyard with two kinds of seed, lest the whole yield be forfeited to the sanctuary, the crop which you have sown and the yield of the vineyard. You shall not plow with an ox and an ass together. You shall not wear a mingled stuff, wool and linen together. (Dt. 22:9-11)

Both sources agree that it is forbidden to plant together two different kinds of crops (units i-iii in the following), to place together two different kinds of animals (unit iv) or to wear a garment made of different kinds of fibers (unit v). The Mishnah's authorities ignore the discrepancy in the specific acts of commingling referred to by the separate sources. Jacob Neusner - 978-90-47-41637-1 Downloaded from Brill.com02/08/2023 11:54:33AM via Universite degli Studi di Milano

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Instead they view the two passages together, so as to prohibit all of the acts of commingling referred to by Leviticus and Deuteronomy. With the focus of the tractate and its Scriptural origins clear, we now review in detail the formation of its law. A. Kilaim bifore 70 Dt. 22:9 states that one may not plant a vineyard with two kinds of seed. In the only material of this tractate going back to the period before 70, the Houses dispute the definition of a vineyard that is subject to Scripture's law (iii.A.4:1-3, 5, 6:1). Their argument concerns the number and configuration of vines that comprise a vineyard and the area of tillage deemed integral to that vineyard such that it may not be planted with a different kind.

B. Kilaim in the Time

if Yavneh

The approach of the Houses is taken up by Y avneans, who do little to develop the basic issue established before 70. Like the Houses, Yavneans are concerned primarily with the definition of the specific areas of land that, because of their size, may be deemed autonomous of adjacent ground. Yavneans thus define the smallest area that may be called a separate field (ii.B.2: 10) and suggest several configurations in which rows planted with different kinds of seeds are held to comprise distinct, and therefore permitted, areas (ii.B.3.3, 4, 6). The point is that, like the Houses, Y avneans are not concerned with the overall appearance of the area, but with its conformity to unvarying space requirements. The character of this formalistic approach is made clear at iii.B.4:8, where the Yavnean Hananiah b. Hakinai notes that the original layout of a vineyard, and not the way it appears at the present time, determines whether or not seed may be planted between the rows of vines. The same formalistic attitude towards the definition of a field informs the Yavnean approach to a case in which produce actually is planted as Diverse Kinds. Unlike Ushans, who, as we shall see, are careful to take into account the intentions of the farmer, Yavneans rule that even if Diverse Kinds are accidentally planted in a field, the second kind immediately must be destroyed (iii.B.5:7). If it is not, all of the produce will be rendered forbidden. Unlike later law, Yavneans countenance no delay on the part of the farmer.

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Yavneans touch briefly on two other matters. They dispute whether or not plants that do not produce food are subject to the restrictions of Diverse Kinds (iii.B.5:8). The opinion of Eliezer, that they do not, appears to be normative within the Yavnean period itself. Yavneans rule that a vine growing upon part of a tree renders that part alone in the status of a trellis. Seed may not be planted under that part, which has the status of an area of tillage, but may be planted under the rest of the tree (iii.B.6:4). Ushans develop this rule to take into account the difference between a barren tree and a fruit tree. Their rule, as we shall see, takes into account the intentions of the farmer who trains a vine upon his tree. Y avneans offer a small comment upon an area of law greatly developed in the Ushan period. They make explicit that the restriction of Lev. 19: 19 and Dt. 22: ll, that one should not wear a garment made of wool and linen together, indeed applies only to clothing. Mingled fabrics may however be used for other purposes, so long as they do not serve as a garment (v.B.9:3, v.D.9:4).

C. Kilaim in the Time qf Usha Ushans offer a new theory regarding the determination of what is forbidden under the restrictions of Diverse Kinds. They state that what matters is whether individuals who look at an area planted with several kinds of seed will perceive that area to be a confused mixture of different types of plants or whether they will view it as a logically mapped out grid of several distinct crops. What concerns Ushans, that is, is not the specifics of the size of any area of planting, but the perceptions of the Israelites who will look at it and who, on the basis of appearances, will determine whether or not the farmer has properly planted his fields. This underlying attitude is found in each of the areas of law upon which Ushans touch. The tone of their work is set by their definition of what constitutes a Diverse Kind, i.C.l: l-3. Ushans claim that Diverse Kinds of seeds are defined on the basis of appearance, not botanical divisions. Different kinds of plants that look alike may therefore be planted together, for they will not give the appearance of being Diverse Kinds. This same approach is played out in Ushan materials concerning forbidden and permitted layouts of different kinds of crops. So long as the onlooker will be able to perceive a logical order in the way the farmer planted his field, Ushans deem that planting to be permitted.

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Moreover, they are unconcerned with the specific amount of space each individual crop takes up (ii.C.2:7, 9, 3:1). Certain Ushans are even disposed to allowing Diverse Kinds of seeds to be mixed together and planted. Their only concern is that the secondary seed will be of a sufficiendy minimal quantity as not to give the field the outward appearance of a confused mixture of different types of crops (ii.C.2: 1-2). 1 Finally, along these same lines, Ushans define a vineyard as any group of vines that people in general call a vineyard (iii.C.5: 1). This is quite different from the approach of the Houses, who gave specific requirements of number of vines and their configuration. The Ushan concern for appearances is brought to bear as well in a case in which a farmer plants crops that are not Diverse Kinds but that appear to comprise a forbidden combination. Since onlookers will perceive the farmer to have transgressed, he should not plant in such a manner (iii.C.7:2D-F). While the farmer who does so anyway has not objectively transgressed and therefore cannot be held culpable, Ushans insist that he should in the first place not cause even the appearance of a sin. Carried over and applied to the law of the seventh year of the Sabbatical cycle, this Ushan idea accounts for the majority of the materials in Tractate Shebiit. According to Ushans, the perceptions and intentions of Israelites are important as well in determining whether a field's being planted with Diverse Kinds has caused all of the crop of the field to become sanctified and forbidden for consumption. Ushans hold that this occurs only if the farmer intends the Diverse Kinds to grow in his field. If he does not, then even if he maintains the illegal mixture for some time, for instance, while waiting for the opportunity to rectifY the matter, the produce remains permitted (iii.D.5:6). This is quite different from the Yavnean approach (iii.B.5:7), which requires the farmer immediately to destroy the offending crop. The Ushan view leads to the logical conclusion that an individual who plants a Diverse Kind in his neighbor's field does not render forbidden all of the produce of that field (iii. C. 7:4-5, iii.D. 7:6). So long as the person who owns the field has not sanctioned the growth of the secondary crop, the presence of that crop has no effect. Upon discovering the offending plants, the field's owner need

1 This perhaps depends upon the same theory as the rules for neutralization (see Chapter Six, note 5). The particular application of this theory is totally in line with Ushan law in general, for it chooses to ignore what is known to be in the mixture and to take account only of the appearance of the grown crop.

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simply destroy them, indicating that he does not desire the food they produce. This same Ushan perspective is brought into play in a case in which the farmer trains vines upon a tree (iii.C.6:3, 5). If the tree is barren, the farmer clearly wishes to use it as a trellis. The whole area under the tree therefore is deemed an area of tillage and may not be sown. If, by contrast, a vine is planted under part of a fruit bearing tree, only the affected branches are deemed a trellis. The rest of the tree, clearly desired by the farmer for its fruit, retains the status of a tree, such that no area of tillage need be left under it. Grains may be planted there, and if they should be grown over by the vine, the vine needs simply to be cut back. It does not render the properly planted seed forbidden. Ushans take up the biblical prohibition against weaving a fabric of wool and linen. While the topic received only minor Yavnean attention, Ushans go ahead to define forbidden cloth (v.C.9:8, 9, 10) and, as before, make clear that, although the restriction applies only to wool and linen, one should be careful not to wear other mixtures that appear to be forbidden (v.D.9:2). The prominence for Ushans of appearances is indicated by their allowing the use of cloth that actually contains both wool and linen. This is permitted so long as the ratio of one to the other is such that the presence of a mixture is not apparent (v.D.9:1). 2 On this topic Ushans rule, finally, that in cases of ambiguity, the user's attitude determines whether or not a cloth object is deemed a garment (v.D.9:5-6). A topic ignored in the earlier periods receives some attention at U sha. This concerns the mating or harnessing together of different kinds of animals (Lev. 19:19, Dt. 22:10). Again, Ushans concentrate upon appearances. They therefore rule that different kinds of animals may not be tied together in any way that looks as though they are harnessed to work as a team (iv.C.8:3, 4). This is the case even if, in actuality, the animals are not working together. In a minor note, Ushans state that mixed breeds, such as mules, are deemed a kind unto themselves and may be harnessed together (iv.C.8:5).

2

The theory obviously is the same as at ii.C.2:1-2, discussed in the preceding note.

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II.

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THE HISTORY OF TRACTATE KILAIM

i. Mixtures that are Diverse Kinds

This unit concerns the definition of different types of produce or animals that are deemed heterogeneous, such that they may not be yoked, planted or grafted together. Two different theories are presented. The first theory is attributed to Ushan authorities. It holds that the criteria for determining Diverse Kinds is whether or not the types of produce look alike. According to this view, even if two kinds of produce are of distinct genuses, if they look alike, they may be planted together in a field. So long as people in general will not view the field as being planted with heterogeneous seeds, the field is not subject to the restrictions of Diverse Kinds. The second theory, occurring in anonymous material, shares the formalistic approach attributed elsewhere in this tractate only to Yavneans. It holds that appearances do not count, but that what matters, rather, is whether the plants are of the same, or distinct, species. If they are of distinct species, then no matter how alike they look, they may not be planted together.

A. Bifore 70

B. The Time qf Yavneh C. The Time qf Usha 1: 1-3 List of twenty pairs of types of produce that are not Diverse Kinds. Judah glosses 1:2; Aqiba glosses 1:3.

These items are not deemed Diverse Kinds because, even though they are of different genuses, each pair's grains or fruits look alike. The larger point thus is that, to comply with the rules for Diverse Kinds, a field simply must not appear to be sown with different kinds of seeds, even if it actually is. Placement at Usha is on the basis of Judah's attestation. While discussion of specific items may have come earlier, as Aqiba's gloss indicates, the construction as a whole comes no earlier

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than Judah's day, along with the larger theory expressed here and in the following. 1:7-8 They may not graft together different kinds of trees or vegetables. Nor do they graft a tree onto a vegetable or a vegetable onto a tree. Judah permits the latter.

The only noteworthy claim here is Judah's, the point of which, unfortunately, is not clear. See Mandelbaum, pp. 51-52. The basic, anonymous, point seems obvious: One may not perform a graft which creates a hybrid of Diverse Kinds. Placement of the whole unit is on the basis of Judah's gloss.

D. Unassigned I :4 Grafting is permitted in the case of fruits of a single genus. It is forbidden in the case of fruits which are not of the same genus, even if they are similar in appearance.

Unlike i.C.l: 1-3 this rule takes seriously the criterion of genus in determining what are Diverse Kinds. Since there is no attribution, I see no sound method of placing this in historical relationship with that other pericope. Note however that, according to T. 1:4, the issue of permitted and prohibited grafting did arise in Yavnean times.

1:5 List of items that, even though they are similar in appearance, are deemed Diverse Kinds, for they are of separate genuses.

The theory of the preceding entry is carried forward.

I :6 Same rule as in the preceding The theory of the preceding for seven pairs of types of animals. exemplified again. I :9A-D Burying a vegetable under a vine does not constitute a case of forbidden grafting or planting.

IS

The vegetable is neither grafted nor actually planted, such that the rules of Diverse Kinds do not apply.

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n. Sowing Together Different Kinds

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if Crops

Y avneans initiate discussion of the conditions under which different kinds of crops may be sown alongside each other without constituting forbidden Diverse Kinds in a field. Such planting, they rule, is permitted if each kind takes up a sufficient area of land as to be deemed sown in a field of its own. While all authorities agree to this basic theory, they dispute the specific size of the area which, under several different circumstances, constitutes an autonomous field (ii.B.2: 10, 3:3, 4, 6). The discussion continues at Usha, where the Yavnean theory is expanded within the common frame of Ushan thinking. Ushans make clear that at issue is the overall appearance of the area planted with several kinds, not the specific acreage that any single kind covers. For Ushans, that is, crops do not comprise Diverse Kinds so long as humans can perceive lines of demarcation that separate one area of planting from another. Ushans thus 1) permit the comer of one field to extend across the boundary of a different field, 2) allow a field to be flanked with a single furrow of a different kind (ii.C.2:7) and also 3) permit a single field to be sown with many patches of different kinds of seed (ii.C.2:9). Some Ushans even allow a second kind of seed to be mixed with the primary seed sown in a field. This is the case so long as that second kind is of so minimal a quantity as not to be readily visible within the field (ii. C.l :9E-H, 2: 1-2). Ushans thus carry to a striking conclusion the line of thinking initiated in Y avnean times. Since the one pericope of this unit attributed to the period before 70 does not appear to be authentic, there is no evidence that this discussion as a whole derives from earlier than the period of Y avneh. The majority of the work, as we shall now see, is done at Usha. A. Bifore 70 2:6 A plot of land so wide as Beds of minimum sizes given by three furrows is deemed a distinct the Houses are deemed separate field-so the House of Shammai. fields, which may be planted with The House of Hillel say: It must different kinds. While the idea given be so wide as the width of a Sharon here is not striking (see iii.A.4:1-3, 5, 6: 1), attribution of this specific issue yoke.

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is not on solid grounds. T. 2:1 states these Houses' opinions anonymously, in a pericope attested to Usha by Eleazar b. Simeon and Abba Yose b. Hanan.

B. The Time qf Yavneh 2:10 An area of secondary planting must be of requisite size so as not to constitute Diverse Kinds with the primary crop of that field. Eliezer (alt.: Eleazar) disputes specific area required.

The specific figure given here for an autonomous area of planting, six by six handbreadths, is assumed by Aqiba in the following entry as well as at Usha, ii.C.3: 1. See also Peah, i.B.3:6.

3:3 If his field is planted with one kind of vegetable and he wishes to plant it with a different kindIshmael: He must plant a furrow the length of the whole field. Aqiba: He must plant the area of a garden bedjudah refines Aqiba's position to refer to the size of a furrow.

The concerns are the same as at M. 2: 10, which Aqiba's opinion indeed reflects. Judah's alteration of Aqiba's view adds credence to the supposition that the issue originally derives from Y avnean times.

3:4 One may plant two rows each of several kinds of plants, but not one row each. If the two rows of the same kind are not adjacent, Eliezer permits, but sages prohibit.

Eliezer holds that the two rows define an individual field, even though they are not adjacent to each other. Sages hold that the rows must be alongside each other, so as to create a single area containing one kind. This carries forward the issue of the preceding entries.

3:6 One who wishes to plant rows of gourds among onions-Ishmael: He uproots two rows of onions and replaces them with one row of gourds. Aqiba: He replaces them with two rows of gourds.

The two rows that have been cleared comprise an independent field, as we know from the preceding entry. Aqiba therefore allows the individual to replant these rows with gourds. Ishmael is concerned that the gourds will spread and begin

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to cover the onions that remain on either side. To prevent this mixing of Diverse Kinds, he allows the farmer to plant only one row of gourds in the two rows he has cleared.

C. The Time qf Usha 1:9E-H Sowing wheat and barley together constitutes sowing of Diverse Kinds. Judah: This is the case only if there are two grains of wheat and one of barley or vice versa.

The issue appears to be the question of what constitutes a field planted with Diverse Kinds (Mandelbaum, p. 64). Judah simply states that the heterogeneous kinds of crop are not deemed planted "in a field" (Lev. 19: 19), unless there are at least three plantings. Placement in this stratum is on the basis of attribution alone.

2: 1-2 One may not sow a seah of one kind of seed if it contains a quarter-qab of a different kind of seed. They may plant it if they lessen the quantity of seed of the second kind to less than a quarter-qab. Y ose: They must entirely remove the second kind. Simeon glosses.

The anonymous rule states that we need only take actions to avoid the appearance of sowing together Diverse Kinds, even if, in fact, two or more different types of seeds will be sowed together in a field. y ose, by contrast, takes literally the notion that only one kind of seed may be sown in the field.

2:3 If a field is sown with wheat and he wishes to sow it with barley, he must first plow over the wheat and only then may plant the barley. Dispute involving Abba Saul concerning mode of plowing.

The initially sown grain must be killed before a subsequent crop may be planted.

2:7 It is permitted for the corner of a field planted with one kind to extend into a field planted with a

The planting must not produce the appearance of Diverse Kinds. Therefore the distinct type must be

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different kind. A farmer may plant the edge of his field with the kind planted in his neighbor's adjacent field. Simeon: A field may be flanked with a furrow of any kind of seeds. Yose: One may plant one furrow of a different kind in the middle of a field.

readily defined as a border-area, or must look like part of a neighbor's field. Y ose and Simeon allow the single furrow for purposes of testing the soil. Since the one furrow clearly is not intended to produce a crop, all who see it will realize that the farmer has demarcated a distinct area in his field and is not guilty of planting Diverse Kinds.

2:9 One may plant his field with patches of different kinds of produce so long as there are not more than twenty-four patches per bet seah. Meir: Only three patches of mustard are permitted in a field of grain. Sages: Nine. Eliezer b. Jacob: No matter how large the field, only one patch of a different kind may be sown in it.

The issue and theory are the same as in the preceding pericope. Mustard creates a special problem. It looks like grain and therefore is likely to appear to create a haphazard mixture. Meir therefore wishes to prevent much mustard from being planted in a field of grain. Eliezer b. Jacob shows this same general concern whenever more than one kind is to be planted in a field. So as to prevent the haphazard appearance of a field planted with Diverse Kinds, he allows only one secondary planting in each field.

2: 11 If one kind of produce grow- Since the plants do not become ing in one field leans over a differ- intertwined and are not actually ent kind of produce, growing in growing in the same field, they are some other field, all the produce not deemed Diverse Kinds. Meir remains permitted. Meir: The chate forbids in the case of a climbing melon and the cowpea may not be plant that could overgrow the other allowed to lean over any other plant. field, creating a situation in which more than one kind was growing in a single field. Developing the notions of this stratum and attested

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by Meir, this is firmly placed at Usha. 3: 1 Five kinds may be sown in a The notion that an area of six by garden bed measuring six by six six handbreadths constitutes a dishandbreadths, one kind in the mid- tinct field derives from Y avneh, dle and a different kind at each ii.B.2:10. 3 We now have further side. Judah: Six kinds may be sown consideration of how that field may in the middle. If the garden has a be broken up into clearly discernborder, thirteen different kinds may able areas, each planted with a be planted in it. different kind. Placement is on the basis of this development and the attribution to Judah. 3:7 Gourds planted among vegetahies are deemed a secondary planting, which requires a space of six handbreadths square (ii.C.2:10). If the gourds are to be planted in a field of grain, y ose disputes the required area. Meir and Y ose b. HaHotef report that Ishmael did not allow other types of seed to be planted in an area that contained three gourds.

This cites and makes use of materials that derive from Yavneh. Since gourds spread, we must be careful to allow them sufficient room for growth.

D. Unassigned 2:4 If his field was sown with vegetables or grain and he decided to plant vines, or vice versa, he must overturn or uproot the original crop before he plants the new one.

The point is the same as at ii.C.2:3, such that this rule as well appears to belong to the U shan stratum.

2:5 One may not sow a second In the first case, there will be no crop on top of a type of seed that appearance of Diverse Kinds, since remains in the ground for three the second type of seed remains years and only then sprouts. Grains in the ground. Even so, an actual 3 The theory of the present entry is however quite different from that of M. 2:10. While Yavneans require a minimum area of six by six handbreadths for the planting of one kind, Ushans allow the planting of six kinds in that same space.

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that grow wild among cultivated grains are not deemed Diverse Kinds. But if one should weed out any of these wild grains, he must weed out all of them.

circumstance of two types of seeds growing in a single field must be avoided. As for the second case, since the wild grains are not cultivated, they do not come under the restrictions of Diverse Kinds. If one weeds out only some of the wild grain, however, he indicates that he wishes the rest of it to grow. Coming under the farmer's will, this too is now subject to the restrictions of Diverse Kinds. This is all a rather subtle development of ii.C.2:3 and ii.D.2:4, such that it presumably belongs in the Ushan stratum.

2:8 They may flank a field of vegetables with mustard or safflower, but may not flank a field of grain with these things.

Mustard and safflower are close in appearance to grain, such that growing next to each other, these things would look like Diverse Kinds. Since the mustard and safflower look entirely different from vegetables, these may be planted next to each other. The farmer will appear simply to have planted two separate areas. Carrying forward the issue of ii.C.2:7, 9, this belongs in the Ushan stratum. Further discussion occurs in the names of Rabbi, Judah, Simeon, Simeon b. Gamaliel and Meir, T. 2:4~5.

3:2 A garden bed planted with various kinds around its edges must, in its center, be planted with vegetables, not seeds. If the bed's border (ii.C.3: 1) diminished in height, thirteen kinds still may be planted in it.

This develops the Y avnean notion (ii.B.2: 10) that an area of six by six handbreadths is deemed a separate field only if vegetables are grown in it, but not as regards other seeds. It further depends upon the Ushan material at ii.C.3: 1, which it car-

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ries forward. These rules therefore derive from the U shan period. 3:5 Different kinds of melons may be planted in a single hollow so long as they lean in different directions.

The concern is to prevent the different kinds from appearing as though they are growing together. Comparable to ii.B.3:4, this may derive from as early as Yavneh.

iii. Sowing Crops among Vines According to Dt. 22:9, if seed is planted in a vineyard, both that seed and the vines are rendered forbidden under the laws of Diverse Kinds. The present unit addresses primary questions left open by this rule of Scripture. The first issue is to determine what constitutes a vineyard, such that it must have its own autonomous area of growth free from other types of crops. If a farmer's vines do not meet this definitionthat is, if they are not considered a vineyard-the normal rules of this unit will not apply at all. If however the farmer's vines do compromise a vineyard, a second question must be answered, comparable to that addressed in unit ii for the case of the field planted with seed. This question concerns the specific area of land surrounding the vineyard that must remain free of any other type of produce. Work on these questions appears to have begun in the period before 70. The Houses define the minimum size of a vineyard in terms of specific measures of acreage and number of vines (iii.A.4:1-3, 5). Yavneans carry matters forward along the lines set out by the Houses. They refer in particular to cases of ambiguity. They also ask other basic questions, specifically, whether or not the restrictions of Diverse Kinds apply to agricultural products that are not edible, e.g., hemp (ii.B.5:8), and whether grain may be planted under a tree upon which a vine has been trained (ii.B.6:4). The Yavnean answer, that only the area under the vine itself need be treated as an area of tillage, is greatly expanded by Ushans, who take into account the attitude of the farmer who in the first place trained the vine upon the tree (iii.C.6:3, 5). Ushans qualifY the earlier, formalistic, approach, which focuses upon the physical dimensions of the vineyard. They prefer to take into account the intentions of the farmer who plants the vines and the attitude of onlookers who will see and judge what the farmer has done.

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Ushans therefore define a vineyard as that which people generally consider a vineyard (iii.C.5: 1, 5:2). In the same theory, they treat as forbidden under the restrictions of Diverse Kinds only what appears to be Diverse Kinds in a field, whether or not it actually is (iii. C. 7:2D-F, 7:8). The approach, which takes into account extenuating circumstances and not only the concrete facts of the case, has its logical conclusion in the Ushan rule at iii.D.5:6. Produce grown as Diverse Kinds in a vineyard is forbidden only if the farmer desires the second type to grow upon his land. If he does not want that second crop and intends to uproot it, then even if he leaves it to grow for a short time, his produce is not rendered forbidden. This same approach accounts for the application, at iii.C.7:4-5, of the Yavnean concept that an individual cannot sanctifY what he does not own. Here this is taken to mean that he cannot render forbidden under the law of Diverse Kinds produce growing in his neighbor's field. So long as the neighbor did not intend to grow Diverse Kinds, his produce remains permitted. Bifore 70

4:1-3 The Houses dispute the .. . . . mm1mum siZe an area m a vmeyard must be in order to be sown with a clifferent kind. Judah glosses, defining the location of the specific areas referred to. He also gives the requisite measures for concrete boundaries that divide the vineyard into separate areas.

The Houses' statements are explained and developed by Yavneans and Ushans, here, at iii.B.4:8 and at iii.D.4:4. It therefore is likely that the attributions to the Houses are authentic.

4:5 The House of Shammai: One While the Houses' views are subrow of five vines constitutes a vine- ject to definition and expansion yard. House of Hillel: Two rows only by Ushans (iii.C.4:7, iii.D.4:6), the relationship between this and containing a total of five vines. the other Houses' materials in this unit suggests that the dispute is authentic to the period before 70. 6: 1 Vines trained on a fence or ditch-House of Shammai: The vines' area of tillage is measured

The topic of the vine trained along a fence (espalier) is attested to Y avneh both in the present pericope

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from the base of the vines to the field. House of Hillel: It is measured from the fence to the field. Yohanan b. Nuri: The area of tillage is measured between the vines and the fence. If there is sufficient room, he may sow the rest. Aqiba: A single vine requires six square handbreadths of tillage.

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and at iii.B.6:2. Further development appears to have occurred at Usha, T. 4:5 and 4:7. The basic positions assigned to the Houses therefore appear to derive from the period before 70. 4

B. The Time if Yavneh 4:8 To plant seed between rows of vines, the farmer must have sufficient area to allow the seed to grow in an area of its own. The size of the area depends upon the number of rows of vines. If a row is laid waste: Eliezer b. Jacob in the name of Hananiah b. Hakinai says that we treat the case as though the row were still there.

Hananiah's point is that the original layout of the vineyard, not the appearance it has at any given moment, determines whether or not a If second kind may be planted in it. Hananiah thus follows the common Yavnean perspective that appearances have no legal weight. Attested to Usha by Eliezer b. Jacob and further developed at iii.C.4:9, we have good reason to assign this to Yavneh.

5:7 If seed accidentally is sown in a vineyard: Aqiba: If it sprouts blades, it must be overturned; if it begins to ripen, the ears of grain must be broken off; if it is ripe, the ripe grain must be burned.

What happens if grain is sown in a vineyard that does not contain sufficient area to constitute a separate field? Aqiba's response details methods required to destroy the grain at each stage of growth

4

Mandelbaum, in Neusner, Judaism, p. 288, states: Both in this dispute and in that of M. Kil. 4:5 the Houses attest the concept of the area of tillage, i.e., the distance which must separate climbing plants from plants of other kinds. It appears, then, that two major conceptions of the tractate, the autonomous "field" and the area of tillage, were known to the Houses, and so may originate before 70. It is equally important to remember, however, that the Houses are generally concerned with fundamental definitions of areas or structures involved with the planting of different kinds. It is very clear, then, that the Houses stood near the beginning of the law of diverse kinds.

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(see Mandelbaum, pp. 191-92). Unlike in the Ushan development of this issue, Aqiba shows no concern for the attitude of the farmer who allows the seed to grow into ripened ears of grain. 5:8 He who allows thorns to grow in a vineyard-Eliezer: He has sanctified the field. Sages: He has not. As for hemp-Tarfon: It is not considered Diverse Kinds m the vineyard. Sages: It is.

Eliezer holds that useless plants, which produce no food, do not constitute Diverse Kinds. Sages disagree, holding that the issue does not concern edibility but only homogeneity of kind. The second dispute assumes that Eliezer's view is normative and questions whether hemp is a food, since its seeds may be used to make oil, or an inedible, inasmuch as its main use is in the manufacture of rope or fabric. This rather basic issue of the range of applicability of the laws of Diverse Kinds is assigned to Y avneh on the basis of the attributions here and the further discussion in the names ofYavneans at T. 3:16.

6:4 Ishmael permitsjoshua to sow under part of a fig tree not covered by a vine. He prohibits sowing under a sycamore branch upon which a vine is trained, but permits sowing under other parts of the same tree.

The vine affects only that part of the tree upon which it is growing. By turning that part into a trellis, the vine prevents the farmer from sowing seeds under it. Ushan authorities, iii.C.6:3, 5, develop this rule to take into account the type of tree involved and, presumably, the individual's intention in training a vine on it. This provides firm substantive grounds for assigning this basic consideration to Y avneh.

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C. 7he Time qf Usha 4:7 Description of the ways m which the two separate rows of vines may come together so as to meet the minimum requirements of a vineyard, iii.A.4:5. Judah glosses and attests to Usha.

This depends upon and carries forward the view assigned to the Hillelites, that to be deemed a vineyard, the vines must be located in two rows. The specific issue is what obstacles may separate the individual rows and yet allow them to be deemed a single vineyard.

4:9 Description of application of This development of a Yavnean iii.B.4:8-Judah supports anony- rule is attested to Usha by Judah, mous view against that of Meir and Meir and Simeon. Simeon. 5: 1 A vineyard that lay waste- The application of iii.A.4:5 in amif it still contains ten vines planted biguous cases is determined. Meir in the form required by M. 4:7, it holds that all that really matters is is deemed a vineyard An irregularly whether people in general would planted vineyard is deemed a vine- call the area a "vineyard." yard if one can discern two rows. Meir: In all events it is deemed a vineyard. 5:2 If the rows are planted closer This continues the issue of the prethan usual-Simeon: It is not ceding. Contrary to Meir, Simeon deemed a vineyard. Sages: It is as wants to be able to distinguish the though the intermediate rows were requisite number and configuration not there. of rows. Like Meir, sages are concerned only with the overall appearance of the area. 5:3 Eliezer b. Jacob: A ditch that extends all the way through a vineyard forms its own autonomous domain, which may be sown. If the ditch does not extend all the way through the field, it is like a wine press. Eliezer: If it is of suffi-

The area in question looks like an autonomous domain and therefore may be treated as such, regardless of its actual size. Discussion of this issue continues along these same lines in the following entry, providing further grounds for placing

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cient size, it may be sown. A watchman's mound of this same reqUIsite size may be sown.

these materials, the attributions of which are ambiguous, in the Ushan stratum.

5:4 If a vine is planted in a winepress or hollow, they allow it its area of tillage and sow the rest with a different kind. Y ose: There must remain four square arnot, or he may not sow the rest.

A winepress or hollow may be sown with a different kind (M. 5:3). What if there already is a single vine growing there? So long as there is sufficient space to allow each kind its own clearly distinct area of growth, the second kind maybe planted. Y ose simply repeats what we already know to be a vine's area of tillage.

6:2 Eliezer b. Jacob: An espalier on a terrace prohibits for the planting of a different kind the four arnot around it only if the grapes growing on it can be harvested from the ground Eliezer (alt.: Eleazar): The vines growing on an espalier combine with those growing on the ground only if they are not higher than ten handbreadths above them.

If the farmer cannot stand on the ground and harvest it, the vine on the espalier is deemed to grow in its own autonomous area. Both Eliezer b. Jacob and Eliezer/Eleazar make the same point in slightly different terms. Note the parallel point made by Yose at iii.C.6:7.

6:3, 5 If a vine is trained on part This develops the Yavnean discusof a latticework or a barren tree, sion of iii.B.6:4. 5 An inanimate one should not sow seed under the object or non-fruit producing tree other part. If he did so and the is deemed to have the status of the vine grew over the seed, it has been vine growing on it. Since the farmer sanctified. If the vine is trained over clearly intends it only as a trellis, part of a fruit tree, one may put seed should not be planted in its 5 The redactional conflation of M. 6:3, 4 and 5 superficially obscures the very different issues found within the Yavnean M. 6:4 and the other, Ushan, pericopae. Mandelbaum, p. 219, is careful to take this into account, noting that at M. 6:4 Ishmael does not address the question of the barren tree at all. By contrast, Mandelbaum cites Maimonides' interpretation. By reading the unit as an integral whole, Maimonides is forced to explain Ishmael's position with the claim that the sycamore tree (which bears a fig like fruit) is deemed pardy like a barren tree and pardy like a fruit tree.

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seed under the rest of the tree. If the vine extends over the seed, he cuts it back. Meir: All trees are deemed barren except for the olive and fig. Y ose: Any tree that one would not plant as a whole grove is called barren. Anonymous rule: A barren tree is one that does not produce fruit.

area of tillage, even under that part upon which no vine is trained. The fruit bearing tree, by contrast, is not rule: A barren tree is one that intended as a trellis and therefore retains its own status. Seed may be sown under any part of it that does not actually support a vine. Along with its clear relationship to the Yavnean rule at iii.B.6:4, this rule is attested to Usha by Meir and y ose, who define the barren tree upon economic, not botanical, considerations.

6:7 If an espalier extends between two parallel walls, they allow it its area of tillage and sow the rest. Y ose: This is the case only if there are four arnot available for planting the second kind.

The espalier and walls form a small alcove. y ose wants to be certain that this area is large enough that, planted with vines and seeds, it will not appear like a field of Diverse Kinds. Developing concerns prominent at Usha (iii.C.6:2), this is firmly assigned to the U shan period.

7:2A-C Sunken vine-shoots that are visible combine with their parent vines to create a vineyard if there are from four to eight arnot between the parent vines and the shoots. So Eleazar b. Zadoq.

Even though the shoots and the parent vines might still be attached to each other, they are deemed distinct plantings. If they are growing at a sufficient distance from one another to create the appearance of two separate rows of vines they form a vineyard (see iii.A.4:5).

7:2D-F One should not sow seed near a withered vine, but if one does so anyway, the seed is not sanctified. Meir: one should not sow seed near a cotton tree, but if one does so, the produce remains permitted. Eleazar b. Zadoq in his

In each case the sowing of the seed creates the appearance of Diverse Kinds. But since in none of these cases will two distinct kinds actually be growing from the same soil, there is no infringement of the law such that the produce is not rendered

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name: One should not sow above a vine shoot, but if one does, the produce is not sanctified.

forbidden. Placement here is on the basis of the attributions and congruence to the larger concept of this stratum, that one must avoid creating the appearance of Diverse Kinds. See iii.D. 7: l, upon which Eleazar b. Zadoq's ruling depends, and iii.D.7:3, which carries forward the larger idea (and literary form) of the present pericope.

7 :4~5 One who trellises his vine over a neighbor's grain-field has sanctified that neighbor's grain. Y ose and Simeon: A man cannot sanctifY that which is not his own. y ose provides a legal precedent involving Aqiba and the laws of the Seventh Year.

Ushans, Yose and Simeon, make use of a notion known already in the time of Aqiba, that one may not impart a status of sanctification to that which he does not own (see also Terumot, i.C.l:l). This means that the restrictions of Diverse Kinds can have effect only in an individual's own field but cannot apply in the case of distinct kinds growing together but owned by different people.

7:8 Regarding the rules of Diverse The point is the same as at M. Kinds, what grows in a perforated 7:2D~F, providing firm grounds for pot is comparable to that which placement at Usha. In Simeon's grows in the ground. Simeon: view, what grows in a pot is not Whether it is in a perforated pot comparable to what grows in the or unperforated pot, it should not ground. It therefore does not really be left to grow under a vine, but constitute a second kind growing if it does grow there, it does not in a vineyard. Since that which grows in the pot does however sanctifY all the produce. create the appearance of Diverse Kinds, the farmer should not leave such a pot in his vineyard.

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D. Unassigned 4:4 Measures for permissible breaches in fences that divide a vineyard into distinct areas.

This depends upon and carries forward the rules assigned to Judah (see iii.A.4: 1-3), such that it can derive from no earlier than the Ushan period.

4:6 Descriptions of configurations This is an aspect of the same work of five vines that meet the defini- of definition attested to Usha by tion of a vineyard given by the Judah, iii.C.4:7. It presumably Hillelites, iii.A.4:5. belongs to that same period in the unfolding of the law. 5:5 One who plants vegetables in a vineyard that does not contain requisite area to allow sowing of a different kind has sanctified (i.e., rendered forbidden for consumption) both the vegetables and the fruit of a certain number of vines.

The rule derives directly from Dt. 22:9, with M. adding only the specific number of vines rendered forbidden. The specifics of this pericope are attested to the period after Usha by Simeon b. Eleazar, T. 3:11, such that this particular expression appears to be late.

5:6 If one sees vegetables grow- This develops M. 5:5, describing ing in his vineyard and says that the circumstance under which a he will uproot them when, in the field planted with two kinds is rencourse of his work, he gets to them, dered forbidden. The point is that the field is not rendered forbidden. unless the farmer clearly sanctions But if he left them until he would the growth of the second kind, that return, and in the meantime they crop is of no consequence. In light increased in size, the field is ren- of its relationship to the preceding dered forbidden. entry and its concern for the intentions of the farmer, we have good reason for assigning this to the U shan stratum. This notion is very different from that current at Yavneh, iii.B.5:7, where the field's status of sanctification is held to depend solely upon the stage of growth the second kind of seed has reached.

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6:6 A gap in an espalier which measures a little more than eight arnot may be sown with a different kind.

Discussion of sowing a different kind next to a vine-planted espalier begins before 70 and is current in the Yavnean period. It therefore is possible that this rule, which establishes the measure for an autonomous area within an espalier, derives from Y avneh. Indeed, it is rather less complicated than the Ushan case on essentially the same issue, iii.C.6:7.

6:8 If reeds extend beyond the This is a more sophisticated develend of an espalier and he refrains opment of iii.B.6:4 and iii.C.6:3, 5. from trimming them, it is permitted What grows next to an espalier is to sow a different kind under them. considered part of that espalier only If he prepares them for use in the if the farmer shows clear intention espalier, it is prohibited to sow a to use it for his vines. Depending upon and developing an Ushan different kind under them. rule, and bringing into consideration the intentions of the farmer as determinative of the status of a structure, this clearly belongs in the Ushan stratum. 6:9 A vine shoot that extends beyond the end of the espalier or that is suspended from tree to tree renders prohibited for the area directly below it.

Developing the discussion of ambiguities arising from vines planted upon espaliers or trees (iii.C.6:3, 5), this derives from the U shan period.

7: 1 One may plant seed above a vine-shoot sunk at least three handbreadths into the ground. If the soil is stony, sowing on top of the shoot is permitted even if the shoot is not deeply sunk.

Layering of the two kinds will not produce Diverse Kinds, so long as the roots of the seeds cannot reach the sunken vine-shoot. The rule is attested to Usha by Meir, Yosah and Simeon b. Gamaliel (pseudepigraphically citing the Houses; see Mandelbaum in Neusner, Mishnah, p. 289), T. 4:11, and by Eleazar b. Zadoq II, iii.C.7:2A-C.

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7:3 One should not sow areas of a vineyard that are not of sufficient size to compromise an autonomous field. But if one does, the produce is not sanctified. If one sows in the area of tillage of the vine, or right under the vine, the produce is sanctified.

The point is the same as at iii.C. 7:2D-F. One should not sow near vines, for this creates the appearance of Diverse Kinds. So long as the seed will not actually derive nourishment from the same soil as the vine, however, the planting does not create Diverse Kinds, such that the produce is not rendered forbidden. Repeating iii. C. 7:2D-F's conception, this clearly derives from U shan times.

7:6 If a usurper sowed a vineyard, when the rightful owner recovers possession he must cut down the second kind.

The point is the same as is made at iii.C.7:4-5, indicating the Ushan origins of this rule. The usurper's planting of a second kind in another's vineyard does not cause all of the produce to be sanctified. The rightful owner therefore need not bum the food. But he must prevent the different kinds from continuing to grow, lest he be culpable for maintaining a field planted with Diverse Kinds.

7:7 If different kinds growing separately are blown together by the wind, the farmer must return them to their original positions.

This develops the point of the preceding entry. Different kinds that turn out to grow together are not sanctified unless their owner approves of their growing as Diverse Kinds. At T. 4:10 the Ushan Abba Saul reports the issue of this pericope to be under dispute by the Y avneans, Aqiba and Ben Azzai. While the issue may have been first discussed in Yavnean times, it apparendy remained moot until the U shan period.

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iv. Diverse Kinds qf Animals Ushans work out the meaning of Dt. 22:10: You shall not plow with an ox and an ass together. Ignoring what is explicit in Scripture, they provide their own definition of forbidden harnessing of different kinds of animals. This definition is expected on the basis of the U shan approach to the law in the preceding units. Ushans forbid the individual to tie together different kinds of animals in any fashion that causes them to appear as though they are harnessed together in order to work as a team. One may not even tie a second kind of animal to the side of a wagon, for this gives the appearance that Diverse Kinds are working together. In a minor note, Ushans (iv.C.8:3) dispute the question left open by Scripture of the consequences of forbidden harnessing of Diverse Kinds. The second major point of this unit likewise rejects what Scripture makes clear, that the prohibition applies only to oxen and asses. Instead, it determines that Diverse Kinds are defined not only on the basis of species, but also in light of other characteristics, e.g., whether an animal is domesticated or wild, clean or unclean (iv.D.8:2). In all, this unit gives us no reason to believe that the issues it addresses were raised from the time of Scripture up to the Ushan period itself. A. Bifore 70

B. 17ze Time qf Yavneh C. 17ze Time qf Usha 8:3 One who leads a yoke of Diverse Kinds receives forty lashes, as does one who sits in a wagon drawn by Diverse Kinds. Meir exempts the latter. A third animal tied to the harness of a wagon pulled by a team of animals of a different kind is forbidden.

The interesting point is Meir's. He exempts the passenger from liability, because that individual does not overtly act to lead the forbidden pair of animals. In the final rule, the third animal does not actually pull the wagon. Since it creates the appearance of a forbidden pairing, it may not, however, be tied together with the other beasts. Placement in the U shan stratum is on the basis of the attribution to Meir.

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8:4 They do not tie an animal of one kind to the side or rear of a wagon drawn by an animal of a different kind. Judah: Mules of similar parentage may be yoked and mated together. But the offspring of a female horse and male ass may not be yoked with the offspring of a male horse and female ass.

The initial rule is the same as that given in the preceding entry and is attested to U sha by Meir and Judah, T. 5:4-5. Judah makes a different point. Animals bred of Diverse Kinds themselves form a species, so long as they have the same parentage.

8:5 Mules of unknown parentage may not be yoked or mated together. A "wild man" is considered a kind of wild animal. Yose: When dead, he conveys uncleanness in a tent. The weasel-Yose says: The House of Shammai say that, when dead, it conveys uncleanness like a wild animal.

The first, anonymous, rule develops the preceding entry and so belongs in the Ushan stratum. Classification of other creatures as wild or domesticated is called for by iv.D.8:1. It is a subject of Ushan concern here and in the following.

8:6 A wild ox is a kind of domes- Assignment to Usha is on the basis ticated animal and a dog is a kind of the attribution to Meir. of wild animal. Meir disagrees in both cases. Classifications of other animals.

D. Unassigned 8: 1 Seeds may not be sown in a This large formal construction sumvineyard, and, if they are, the pro- marizes the restrictions described duce that results is forbidden for in the first two sections of the tracany use. Different kinds of seeds tate and serves to introduce this should not be planted together, but third section, on Diverse Kinds of if they are, the produce may be animals. Since it assumes and works eaten. Garments of wool and linen to correlate the basic facts described may be produced but may not be throughout the tractate, it presumworn. Different kinds of animals ably derives from late in the formamay be reared and maintained tion of the law. together, but they may not be crossbred or yoked together.

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8:2 All possible pairings of domesticated, wild, clean and unclean animals are prohibited from being yoked together to plow, pull a wagon, or be led.

A "kind" of animal is defined not only by species but also by other classifications, e.g., wild or domestic, clean or unclean. This rewriting of the rule of Dt. 22:10 ('You shall not plow with an ox and an ass together') is a basic datum of the solely Ushan discussion that comprises this unit of the tractate.

v. Fabrics from Diverse Kinds qf Fibers

Dt. 22: 11 prohibits the wearing of fabrics containing both wool and linen (shaatnez). Yavneans state that this restriction indeed applies only to clothing, but that fabrics of wool and linen may be used for other purposes (v.B.9:3). The rest of the unit is Ushan. Ushans define the forbidden mingling of wool and linen as spinning, weaving or hackling these fibers into a single fabric (v.C.9:8-9) or as connecting by means of a full stitch individual fabrics made of wool and linen (v.C.9:10). Ushans indicate which imported fabrics must be examined in order to determine whether or not they contain mixed fibers (v.C.9:7). Finally, in line with other Ushan rules in this tractate, we learn that so long as a fabric does not contain so much of a secondary fiber as to appear to contain a forbidden mixture, that fabric may in fact be worn (v.D.9:2). A. Bifore 70

B. 7he Time qf Yavneh 9:3 Hand-towels, bath-towels and scroll-wrappers are not subject to the restrictions of Diverse Kinds. Eliezer holds that they are. Barbers' towels are prohibited.

Both parties agree that the law only applies to garments. The anonymous rule simply notes that the listed items are not worn and so should not be subject. Eliezer's view takes account of the fact that they can be used to warm one's hand or might be wrapped around one's body. Barber's towels are unambiguous, for they are used to pro-

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teet a person while his hair is being cut. Meir andJudah, T. 5:17, attest this dispute, with Judah insisting that the positions of Eliezer and sages have been reversed. Since there are no other Y avnean rules on this topic, we have no further grounds dating.

C. The Time qf Usha 9:7 A birrus, bardaicus, dalmatic or shoes of coarse wool-one must examine them for Diverse Kinds before wearing them. Y ose: If they come from the seacoast or from distant lands, they need not be examined.

These heavy woolen garments may contain flax below the surface and therefore require examination. y ose seems to hold that, in the areas he mentions, cheaper hemp will have been used instead of linen. Therefore there is no possibility of Diverse Kinds, such that examination is not required. Placement here is on the basis of the attribution to y ose.

9:8 Wool and linen create a forbidden fabric only if they are spun or woven together + Dt. 22: 11 as proof text. Simeon b. Eleazar suggests an alternative interpretation.

The issue of what constitutes a forbidden fabric is developed in the name of Ushans, Yose and Judah, in the following. Simeon b. Eleazar's interpretation of the word shaatnez ("It turns his Father in Heaven away from him") is independent and does not serve to attest this rule to U sha.

9:9 Hackled fabrics of wool and linen are prohibited. A fringe of wool on a garment of linen is forbidden. Y ose: This is because one bastes the cord to the garment.

Yose's view of what constitutes a forbidden fabric is much more stringent than the initial rule here or than the rule of M. 9:8. His participation in the issue serves to attest it to Ushan times.

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9: 10 Wool and linen fabrics con- Judah requires clear evidence that nected by a half stitch are not sub- the individual intends to connect ject to the prohibition of Diverse the different kinds of fabric in a Kinds. The stitch does not comprise permanent fashion. This theory, a connector for uncleanness, and that an individual's actions must one who undoes it on the Sabbath serve to indicate his intentions, is is not culpable. But a full stitch is attributed to Judah elsewhere in a connector for purposes of Diverse this division and serves to attest the Kinds and uncleanness, and one present rule to the Ushan period. who undoes it on the Sabbath is culpable. Judah: This applies only in the case of three stitches. D. Unassigned

9: 1 The restrictions that pertain to Diverse Kinds in garments apply only to mixtures of wool and linen. If a mixture of camel's hair and wool is mostly camel's hair, it may be combined with linen. If a mixture of linen and hemp is mostly hemp, it may be mixed with wool.

Dt. 22:11 is explicit that only mixtures of wool and linen are prohibited. 6 M. adds that in a mixture of permitted materials, the status of the fabric is that of the majority of the fibers. The point presumably is that people generally consider a fabric to be whatever fiber is in the majority, ignoring the secondary fiber it contains. 7 Insofar as it takes into account the perceptions of the Israelite and does not simply judge matters by the objective character of the fabric, this rule is parallel to the Ushan materials of this tractate, particularly at ii.C.2: l-2, and at iii.C in general.

9:2 Silk and bast-silk are not subject to the law, but are prohibited

Two types of silk resemble wool and linen such that, for appearance's

See above, note l. I find no finn grounds for explaining why, in this case, Scripture's rule is taken literally while, for the case of Diverse Kinds of animals, unit iv, Scripture's narrow restriction is broadly expanded. 6

7

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for appearance's sake. Mattresses are not subject to the law so long as one's flesh will not touch them. One may not wear a garment of Diverse Kinds even on top of ten other garments.

sake, they should not be woven in a single garment. As just noted, the consideration of appearance's sake is Ushan (contrast iii.B.4:8) such that the initial rule appears to derive from no earlier than the U shan period. The rest of the pericope's discussion is familiar from Y avneh, v.B.9:3.

9:4 Shrouds and a pack-saddle of an ass are not subject to the restrictions of Diverse Kinds. But one should not place the pack-saddle on his shoulder.

Definition of a garment, familiar from the preceding entry and v.B.9:3, continues. As before, the Yavnean point is that the rules of Diverse Kinds apply only to that which is worn by a human being. This excludes shrouds, worn by the dead, to whom the restrictions of the law do not apply.

9:5-6 Clothes-dealers and tailors may hold garments of Diverse Kinds on their lap or back, so long as they do not intend them to protect them from the sun or rain. The scrupulous ones carry such garments on a stick or leave them on the ground.

The notion that the individual's intention in wearing the article determines whether or not it is subject to the law provides grounds for placing this rule in the U shan period.

III.

CoNCLUSION

Tractate Kilaim principally describes how Israelites are to grow crops in conditions of holiness. They do this by maintaining the distinctions, established by God at the time of creation, between different classes of plants, animals and fibers. The tractate thus serves as a prolegomenon to the Division of Agriculture as a whole, with its larger emphasis upon the processes of sanctification through which Israelites actually set aside produce to become the holy offerings ordained by Scripture.

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The overall point of the tractate emerges from its Ushan stratum. This material comprises the majority of the tractate's laws8 and, moreover, introduces a concept that appears throughout the tractates of this division. Ushans hold that the character of a field-ordered or disordered-or the culpability of an action-permitted or forbidden-is determined in light of the perceptions and intentions of the Israelites involved. These perceptions, that is, determine whether different plants growing together in a field have been planted in a logically ordered, and so permitted, manner. Ushans further hold that only in light of the intentions of the farmer may we judge whether or not his actions in planting together different kinds of plants are culpable in the first place. According to Ushans, then, order, and with it holiness, is not dependent upon a pre-ordained, transcendent, model. It is, rather, a function of each Israelites' own desire to order, and thereby sanctity, the world. This notion of the role of common Israelites in establishing conditions of holiness is further developed in Tractate Shebiit, which follows. That tractate comprises the Mishnah's second essay on how Israelites are to grow produce under conditions of holiness.

8 Thirty-one out of the tractate's eighty-one units (39%) bear Ushan attributions, compared to only thirteen entries (18%) with Yavnean names. Only eight of the tractate's twenty-eight anonymous rules appear to derive from prior to Ushan times.

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CHAPTER FIVE

THE DEVELOPMENT OF THE TRACTATES: SHEBIIT

I. INTRODUCTION

Lev. 25:1-7 insists that, just as God ceased working on the seventh day and therefore designated it perpetually as a day of rest, so too God established the seventh year as a Sabbath for the land of Israel. 1 Each seventh year the land accordingly must be left untilled. Israelites may not sow their fields or in any way prepare them for planting. Nor may the farmers work the orchards or vineyards so as to enhance the crop they will produce. The people must instead survive upon whatever produce grows on its own. This food is shared equally by all people, without regard to who owns the land upon which it is found. 2 In a separate, though perhaps related, idea, Dt. 15: 1-3 states that, in the seventh year, even monetary demands of one Israelite upon another are cancelled. 3 Tractate Shebiit's concern, dictated by Scripture, is that Israelites use their land in accordance with God's plan of the time of creation. In light of this, the tractate's function within the Division of Agriculture parallels that of Tractate Kilaim and, we shall see, Orlah. These tractates describe how Israelites are to grow food in conditions of sanctity. 4 1 Newman, p. 15, suggests that the land of Israel is understood to have human qualities, such that, "like the people of Israel and their God, it too experiences fatigue and requires a period of repose." Neither Scripture nor the Mishnah, however, understands the Sabbath and Sabbatical year legislation to derive from a psychological or physical need for a period of rest. As Scripture makes explicit, rather, the model for these observances is God's act of creation, in which God completed his work on the seventh day. Israelites too must therefore set aside their work on the seventh day and in the seventh year. The reason is not fatigue but the necessity of following on earth the pattern established in heaven. 2 On the implementation of the Sabbatical restrictions in the first centuries, see Safrai, "Sabbatical." 3 See D. Hoffinan, Sifer Devarim, I, pp. 232-248, and S. R. Driver, A Critical and Exegetical Commentary on Deuteronomy, p. 178, cited by Newman, p. 215, note 6. These exegetes argue that the financial obligations are cancelled precisely because, during the Sabbatical year, debtors do not have their usual income from farming. 4 This accounts for the placement of these materials in the Division of Agriculture in the first place. Scripture spells out its Sabbatical restrictions in the context of its

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The parallel in function, moreover, corresponds to a commonality of the basic points made by Tractates Shebiit and Kilaim. The Ushan authorities of Tractate Shebiit, like those in Mishnah Kilaim, rule that what is permitted and forbidden depends largely upon the intentions of the Israelite who carries out an action and upon the perceptions of those people who see and judge the character of what he has done. While describing a return to the perfect state in which God created the world, the compilers of both tractates thus judge the success of that return only in light of the desires and perceptions of Israelites. What Israelites characterize as right and good is identified with the objective order and sanctity of the world. This point, found in the Ushan stratum of this tractate, comprises the one aspect of the laws before us absent from Scripture and distinctive to the Mishnah. 5 As the idea that generates the majority of the materials in the tractate, it must be deemed the central focus of Tractate Shebiit's own formulators. Yavnean rabbis, by contrast, simply detail that which Scripture itself makes relatively clear. The Y avneans forbid all field work that has a concrete effect upon the growth of seventh year produce. In this Yavnean view, the appearance that the farmer is doing right or wrong has no role in determining the culpability of his actions. Like the Yavnean authorities in Tractate Kilaim, those in the materials before us thus see an established and unvarying set of norms as defining proper conduct. These norms are applied without regard to extenuating circumstances or concern for the meaning an action has to those who carry it out or see it being done. This approach leads not to the finished tractate before us but to a simple listing, predictable on the basis of Scripture, of those field labors deemed to promote the growth of produce and those held to have no effect upon the land. During the Sabbatical year the latter may be performed. The former may not. discussions of festivals and other sacred times, such that this tractate could, alternatively, appear in the Division of Appointed Times. 5 According to this tractate, Israelites even determine when the restrictions of the Sabbatical year take effect. For the Mishnah prohibits the farmer from performing field work at the end of the sixth year, insofar as, through that work, the farmer may enhance the crop of the following year. As Newman, p. 18, explains: "By taking into account the deeds of Israelite farmers and their long-term impact upon the land, Mishnah moves beyond the strictly calendrical conception of the Sabbatical year presented in Leviticus. That is, while the priestly writer assumes that the Sabbatical year begins at a fixed time, determined only by the succession of the seasons and years, in Mishnah's view, Israelites too play a role in determining when the restrictions of the Sabbatical year begin to take effect."

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Before turning to the specific rules through which these points of the tractate are made, let us review the Scriptural basis of these materials. For six years you shall sow your land and gather its yield; but in the seventh year you shall let it lie fallow, that the poor of your people may eat; and what they leave the wild beasts may eat. You shall do likewise with your vineyard and with your olive orchard. (Ex. 23: I 0-11 )6 The Lord said to Moses on Mount Sinai, "Say to the people of Israel, When you come into the land which I give you, the land shall keep a sabbath to the Lord. Six years you shall sow your field, and six years you shall prune your vineyard and gather in its fruits; but in the seventh year there shall be a sabbath of solemn rest for the land, a sabbath to the Lord; you shall not sow your field or prune your vineyard. What grows of itself in your harvest you shall not reap, and the grapes of your undressed vine you shall not gather; it shall be a year of solemn rest for the land. The sabbath of the land shall provide food for you, for yourself and for your male and female slaves and for your hired servant and the sojourner who lives with you; for your cattle also and for the beasts that are in your land all its yield shall be for food." (Lev. 25:1-7) At the end of every seven years you shall grant a release. And this is the manner of the release: every creditor shall release what he has lent to his neighbor, his brother, because the Lord's release has been proclaimed. Of a foreigner you may exact it; but whatever of yours is with your brother your hand shall release. (Dt. 15: 1-3)

A. Shebiit bifore 70 As at Demai, ii.A.3: 1C-H, the Houses dispute whether or not a person is responsible to prevent another from transgressing (ii.A.4:2A-H, 1-K, 5:8). The Shammaites again state that one is. He therefore may not sell tools that could be used to transgress the prohibitions of the Sabbatical year. The Hillelites disagree, holding that so long as no sure proof exists that the buyer will transgress, the seller need not scruple. The Shammaites' position is repeated as normative, ii.D.5:6, 7. We recall that this same view is a basic datum of the Yavnean and Ushan strata of Tractate Demai.

6 Newman, p. 215, note 1, argues that only Lev. 15:1-7 served as the basis for the law of this tractate. Newman's weightiest reason for this view is that the central point of the short passage at Ex. 23:10-11 is that each seventh year the land must lie fallow so as to produce food for the poor of the people of Israel alone. The Mishnah, by contrast, assumes that in the seventh year all of the people of Israel may eat whatever grows on its own (cf., Judah, M. 9:8).

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Hillel instituted a legal fiction designed to circumvent the Scriptural remission of debts in the Sabbatical year (v.A.l0:3-4). A document called a prozbul assigns a private debt to a court for collection. The public institution, a court, can collect the debt even after the advent of the seventh year. The subject of a little essay evolving over the periods of Yavneh and Usha, the basic notion of the prozbul appears to originate in the period before 70. B. Shebiit in the Time qf Yavneh The central ideas that, in the Ushan period, become the focus and point of this tractate appear under dispute in Y avnean times. The most basic issue argued by Y avneans concerns whether or not the restrictions of the Sabbatical year are to be extended back to the end of the sixth year of the Sabbatical cycle (i.B.l :41-K). Anonymous authorities argue that they are, so as to prevent farmers from doing field work in the sixth year that will aid the growth of the crop in the seventh. This notion, under dispute by Ishmael, is the foundation of the tractate's first two, otherwise wholly Ushan, chapters. It thus is noteworthy that this idea was rejected by the Y avnean Ishmael, who claimed that the Sabbatical restrictions apply only in the seventh year itself and that the farmer is permitted to do any field work he desires through the whole of the sixth year, as the plain sense of Scripture indicates. Yavneans argue whether or not a farmer may, during the seventh year, perform permitted field labors that appear to onlookers to be forbidden. A farmer gathering rocks for building might, for instance, appear to others to be clearing his field for prohibited planting. Aqiba, ii.B.4:6, and the weight of the Yavnean material (see, e.g., ii.B.3:10) are clear that neither the intentions of the farmer who carries out the work nor the perceptions of those who watch him are to be taken into account in determining whether or not that labor is forbidden. This view refuses to take into account extenuating circumstances or appearances, looking rather only at the concrete facts of whether or not the farmer's actions promote the growth of a seventh-year crop. The dominance of this view would have precluded the U shan discussions found in this tractate's fifth, sixth and eighth chapters. Behind that large quantity of U shan material stands the Y avnean minority opinion of Y ose (the Galilean), iii.B.4:6. He holds that a farmer may do nothing that appears to be forbidden, even if it is in fact a permitted activity.

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C. Shebiit in the Time qf Usha Unlike the Yavneans, who dispute the tractate's central issues, Ushans agree upon a pointed ideology through which the tractate as a whole presents an identifiable message. They insist upon the primacy of the intentions and perceptions of Israelites in determining what is forbidden and permitted in the Sabbatical year. To understand how Ushans make this statement, we must first describe their larger theory of the restrictions of the Sabbatical year. Ushans are concerned that the farmer not do field work that promotes the growth of produce in the seventh year. This means, on the one hand, that the farmer must be careful to avoid labors that prepare his field or trees for the crop of the Sabbatical year. Certain activities therefore must be curtailed in the sixth year. On the other hand, since the Ushans are concerned only that the farmer not promote the growth of the seventh year's crop, they do not prohibit all field activities that the farmer may wish to perform during the Sabbatical year. They allow him to carry out all work that, while necessary for the maintenance of the land, does not directly promote the growth of the Sabbatical year's crop. In light of their central concerns, the majority of the U shan materials addresses a narrow range of issues. The first is to define those field labors that, because they prepare the land for the following year's crop, are prohibited in the sixth year itself (i.C). The second, most prominent, element of the tractate as a whole concerns those activities that are not intended to promote the growth of the Sabbatical year's crop and that therefore are permitted in the seventh year itself. The problem is that, in carrying out these permitted activities, the farmer appears to transgress. Presumably building upon the Shammaite notion that each individual is responsible to prevent others from breaking the law, Ushans are concerned that, by appearing to transgress, the farmer will lead others actually to sin. They therefore insist that even permitted actions be carried out in a manner that assures that all who look on will recognize that the individual is not engaged in a transgression. What matters for Ushans thus is not the concrete character and purpose of an action but the way Israelite onlookers perceive that action. Ushans therefore detail how the individual is to alter his method of working so as not to appear to transgress. This takes up all of the Ushan materials in unit ii as well as iv.C.8:6 and large sections of the

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unassigned pericopae. These too presumably derive from the Ushan period. Other materials in the Yavnean and Ushan strata detail matters of law that stand outside of the identifiable ideational structure now described. Yavneans and U shans are clear that any growth of produce during the Sabbatical year is subject to the restrictions that pertain to that year (iii.B.5:3, 6:3, iii.C.5: 1, 2, 6:4). This is the case even if the produce began to grow and ripen before the onset of the Sabbatical year or if it will not actually mature and be eaten until the seventh year has ended. Y avneans introduce the notion that produce of the Sabbatical year must be used as food (iv.B.8:9-l 0), so as to assure that all of the people of Israel are properly fed during the seventh year. U shans develop this idea to state that what grows in the seventh year may not be used in any business transactions (iv.C.7:3-4, see iv.A.8:3). While Yavneans thus are concerned primarily with the logistics of feeding the people in a year in which agricultural work is prohibited, the U shans move ahead to treat that which does grow in the seventh year as though it were an agricultural offering such as second tithe or heaveoffering. The law of removal, which holds that, in the seventh year, food no longer found in the fields may not be stored in people's homes, receives attention in both periods. Yavneans legislate for a case in which different kinds of produce have been mixed together (iv.B.9:5A-E). The problem is that the different vegetables in the mixture will be subject to removal at different times. Ushans define specific conditions under which produce is subject to removal (iv.C.9:2-3, 4, 5F-G, 8). The prozbul is the subject of its own essay, located primarily in the unassigned material (v.B.l0:6, 7, v.C.lO:l, v.D.l0:2, 5, 8, 9). The several Yavnean and Ushan items listed here round out the Mishnah's discussion of the laws of the Sabbatical year and allow implementation of the Scriptural ordinances upon which they are based. Unlike the U shan materials concerning the role of perception in determining what is forbidden and permitted, these ideas do not present an identifiable ideology.

II.

THE HISTORY OF TRACTATE SHEBIIT

i. Regulation qf Labor in the Sixth Year

The point of this unit emerges in the Ushan stratum. In the final months of the sixth year, the farmer may not perform field labor that

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will benefit the growth of produce in the Sabbatical year. Such field labor is deemed comparable to actually cultivating produce in the seventh year. That, of course, is forbidden. In line with their larger concern, Ushans indicate until when in the sixth year one may plow a field of grain (i.C.2:1), define an orchard in which plowing is not permitted in the sixth year (i.C.l :5, 6-7) and list other types of agricultural labors that are permitted, since they benefit the crop of the sixth year itself, or are forbidden, since they enhance growth of crops in the Sabbatical year (i.C.2:2-5, 6). In certain cases the farmer's own intentions determine whether a certain field labor is permitted or forbidden (i.C.2:9). In agreeing that certain field work is forbidden in the sixth year, Ushans move a step beyond the discussion found in the single Yavnean pericope in this unit. There Ishmael rejects the notion that any field labor is forbidden before or after the Sabbatical year. Scripture's prohibition, he holds, applies only to the seventh year itself (i.B.l :4I-K). Since this issue is moot in Yavnean times, it appears that a Houses' dispute in which both Houses agree to the Ushan principle just described is not authentic to the period before 70 (i.A.l:l). If it were authentic it would be hard to explain the Y avnean dispute and the hiatus of some seventy-five years in discussion of the specifics of the issue it describes. A. Bifore 70 1: 1 The House of Shammai: The pericope assumes that, even During the sixth year they may in the sixth year, the farmer must plow in an orchard only so long not do field work that will improve as the plowing benefits that year's the crop of the Sabbatical year. The crop. The House of Hillel: They Houses simply dispute at what point may plow until Pentecost. in the sixth year plowing must cease. The theory underlying this dispute is under debate in Y avnean times (i.B.l :4I-K). The specific question under dispute still is moot at Usha, i.C.2:1, where Simeon proclaims the Hillelite position as law. This lends considerable doubt to the authenticity of the attributions to the Houses. See Gordon, in Neusner, Judaism, pp. 289-290. Jacob Neusner - 978-90-47-41637-1 Downloaded from Brill.com02/08/2023 11:54:33AM via Universite degli Studi di Milano

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if Yavneh

1:4I-K Ex. 34:21 proves that certain agricultural labors are prohibited in the sixth year and eighth (= first) years of the Sabbatical cycle. Ishmael rejects this exegesis and, with it, the notion that certain types of field work are prohibited before or after the Sabbatical Year.

Yavneans here dispute what in Ushan times will be taken for granted, that certain agricultural labors are prohibited in the sixth and eighth years.

I :SA-D Eleazar b. Azariah,Joshua and Aqiba dispute definition of a sapling.

This dispute is ancillary to i.C.1:6-7 and independent of the larger issue of this unit. Its concerns are developed at i.C.l:SE-G.

C. 7he Time

if Usha

1:5 Three trees belonging to three different individuals join together to comprise an orchard. Simeon b. Gamaliel: To comprise an orchard, the three trees must be separated by sufficient space for an ox with its yoke to pass through.

This develops i.A.l : 1 by defining the orchard to which that rule refers. The attribution here to Simeon b. Gamaliel provides further evidence that i.A.l: 1 is a late construction.

1:6-7 If saplings are spread out evenly through a seah-space, in the sixth year they may plow the whole space. If the saplings are in a line, they plow only the vicinity of each sapling. A mixture of saplings and gourds is comparable to all saplings. Simeon b. Gamaliel: If there are all gourds, they plow the entire seahspace on their behalf.

The considerations are the same as in the preceding entry. Continued discussion in the name of Simeon b. Gamaliel is at T. 1:3.

1 :SE-G Simeon: If a tree is chopped down and the stump produces shoots, under certain circumstances these may be deemed saplings.

This develops the Issue of i.B.l: SA-D.

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2: 1 In the sixth year they may plow in a field of grain until the ground-moisture is gone Simeon: This puts the law in the hands of each individual. 7 Rather, they plow in a field of grain until Passover, and in an orchard until Pentecost.

The issue is familiar from i.A.l: 1 and i.B.l :4I~K. Simeon states that the opinion assigned at i.A.l: 1 to the Hillelites is law.

2:2~5

list of field labors permitted until New Year of the Sabbatical Year. Glosses by Simeon, Joshua, Eleazar b. Zadoq and Judah attest the construction to the Ushan stratum.

These activities provide an immediate benefit to the produce of the sixth year. Even though there will be a residual benefit to the crop of the Sabbatical year, the procedures therefore are permitted. Activities that prevent irreparable damage to the trees are permitted in the seventh year itself. While discussion seems to have begun at Y avneh, the majority of the materials here are assigned to Ushan authorities. Further discussion is attested to Usha at T. 1:5, 6, 8, 9 and 11.

2:6 Within thirty days of the start of the Sabbatical year they do not plant a tree, sink a vine-shoot or make a graft. Judah: Rooting takes place within three days. y ose and Simeon: Two weeks.

If the new plant takes root after New Year, this would violate the injunction against cultivating the land during the Sabbatical Year. The dispute is over a matter of detail, how much time must be allowed for the plant to root. Further discussion is attributed to Rabbi, T. 1:12, supporting placement of this unit in the Ushan stratum.

7 Simeon's opinion here is anomalous since, throughout this tractate, Ushans seem quite content to place determination of what is permitted and forbidden in the hands of each individual. Indeed, ii.C.3: 1-2 uses the point at which the ground dries up, as well as other criteria that differ from field to field, to determine other matters of Sabbatical law.

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Produce that grows over two This is a continuation the issue of calendar years is tithed in accor- the preceding entry, supplying a dance with the year in which it firm basis for placement in the takes root. If it takes root in the Ushan stratum. sixth year, it is not subject to the restrictions of the seventh. Simeon Shezuri, Simeon and Eleazar supply specific types of produce. 2:7~8

2:9 If a plant might be used as seed or as a vegetable, the farmer's treatment of it indicates its status. If he withholds water thirty days before the New Year, it is treated as a seed and subject to the law, as is the produce referred to at M. 2:7~8. Meir and sages dispute the rule for a naturally-watered field.

The basic problem is the same as in the preceding entry, except that here the farmer's own intentions for the plants come into play. Placement is on the basis of Meir's attestation and the relationship to M. 2:7~8. Further Ushan discussion is at T. 2:5, 6 (where Simeon b. Gamaliel provides a Houses' dispute), 9 and 13.

2: 10H~K Simeon permits irrigation during the Sabbatical year Eliezer b. Jacob prohibits.

The issue is whether or not irrigation is required to prevent irreparable damage to the field (i.C.2:2~5). Parallel in concern to another Ushan pericope and assigned to U shan authorities, this is firmly placed in the Ushan stratum.

D. Unassigned 1:2~4H Definition of an orchard. The issue is the same as at i.C.l :5. If the trees do not comprise an or- This material is U shan or later. chard, in the sixth year the farmer may only plow the area surrounding each tree. The remainder of the field is subject to the rules for fields of grain, i.C.2: 1. 2: 1OA~G Gourds that have been left out and become inedible when

The underlying theory is no different from that of i.C.2:7~8 and 9.

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it is yet the sixth year may be tended for their seeds in the seventh year. But if they still are edible when the seventh year begins, they are subject to the rules of the Sabbatical Year and must be used as food.

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This provides firm grounds for assigning this unit to Usha.

ii. Field Work during the Sabbatical Year In the Sabbatical year it is forbidden to do field labor that benefits the growth of that year's crop. It is, however, permitted to do work that does not benefit the seventh year-produce. The farmer may, for instance, trim trees in order to obtain wood or material for weaving. He even may prepare his fields for cultivation in the year following the Sabbatical. The problem is that, in carrying out these permitted activities, the farmer will appear to others as though he is transgressing. Y avneans are clear, on the one hand, that the farmer must prevent any actual infringement, even if it occurs as a result of permitted labor (ii.B.3: 10). They are not, on the other hand, certain that one should be prevented from doing what is in fact permitted simply because it appears to be a transgression. This question is disputed by Aqiba, who holds that all that counts is the actual status of the labor, permitted or forbidden, and Yose, who wishes to be certain that the individual does not even appear to transgress (ii.B.4:6). 8 In the Ushan period, Yose's view is accepted as normative and forms the basis for a long series of examples. Each of these describes the way in which a person who does a type of permitted field work should alter his mode of working so as to avoid the appearance of doing what is forbidden. These examples take up all of the pericopae in the Ushan stratum as well as those listed as unassigned. One Houses' dispute, ii.A.4:4, assumes this same, Ushan, principle, such that it too presumably derives from U shan times.

8 At iii.A.5:4 the same underlying issue disputed here by Yose and Aqiba occurs in the mouths of the Houses. The Shammaites have the view of Yose. This same view is normative in the Ushan period. If the Houses' dispute is authentic, discussion of this issue was initiated before 70 and remained moot in Yavnean times. Since neither of the two pericopae in question develops the specific concern of the other, however, there are no grounds for establishing the authenticity of the attribution to the Houses.

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The Houses dispute a second issue that may genuinely reflect issues current in the period before 70. The question is the responsibility of one individual not to benefit from the transgression of another person. The Shammaites (ii.A.4: 2A~H, 4:2I~K) consistently hold that once someone has done forbidden field work or otherwise transgressed the rules of the Sabbatical year, even a different person may not eat the affected produce. In a related point they state that a person may take no risk of aiding another who might transgress, e.g., by selling the tools required for the transgression (ii.A.5:8). This same position is stated anonymously at ii.D.5:6, 7 and 9 and is, as we have seen, a basic datum of Tractate Demai. The Hillelites take the opposite view. They hold that the improper field labor does not affect the produce that benefited from it, and that one person is not responsible to prevent another from transgressing, unless he is absolutely certain that that individual intends to sin. Notably, in this case, in which the Hillelites' view stands against the pervasive trend of the law, Judah, ii.A.4:2I~K, claims that the positions of the Houses have been reversed.

A Bifore 70 A field that was cleared Both Houses can agree to the anoof thorns in the seventh year (a nymous rule, which holds that the permitted activity) may be sown in farmer may not benefit from his the following year. But a field that forbidden labor. The issue between was improved in a forbidden way them is the status of the fruit of during the seventh year may not the seventh year itself. The Shambe sown in the following year. A maites hold that since it benefits field that was improved in the sev- from forbidden field-work, it too is enth year-Shammaites: They do forbidden. The Hillelites are attennot eat produce which grows in it tive to the fact that its growth is in the seventh year. Hillelites: They not solely a function of forbidden work. They therefore deem it permay. mitted. This issue appears in the Yavnean stratum, iv.B.9:9, lending weight to its placement before 70. 4:2A~H

4:2I~K Shammaites: One may Produce of the Sabbatical Year benot eat produce of the seventh year longs to whomever gathers it. The given as a favor by the field's field's owner therefore does not owner. Hillelites: They may. Judah: have the right to take it as his own The positions are reversed. to give away. As in the preceding

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entry, the Sharnmaites prohibit consumption of produce that is tainted by some forbidden activity. The Hillelites likewise are consistent. The produce is not affected by what is done with it and therefore may be eaten. 9 4:4 One who thins out olive treesShammaites: He should cut them at ground level. Hillelites: He may uproot them, so long as he is not removing many trees.

Thinning is necessary for the continued growth of all of the trees. It therefore is permitted in the Sabbatical year (i.C.2:2-5). The Shammaites want the man to remove the trees in a way that makes it clear that he does not intend to perform forbidden tilling of the soil. The Hillelites agree in theory and simply hold that this is not a problem so long as the man removes only a few trees. Dependent upon the Ushan notion of i.C.2:2-5 and accepting an underlying assumption that, while moot at Y avneh (ii.B.4:6), is taken for granted in Ushan times, this material cannot derive from the historical Houses. Note also the parallel discussion at ii.C.4:5.

5:8 Shammaites: During the seventh year a person may not sell to another a heifer suited for plowing. House of Hillel: He may, since the buyer might slaughter it. + Three examples of the Hillelite view.

The Shammaites want the seller to take no risk that he will aid the buyer in transgressing. The Hillelites hold that so long as he cannot be certain the sale will lead to a violation of the law, he is not culpable.

9 The presence here of Judah does not seem to me to preclude the conclusion that this issue is authentic in the period before 70. Judah claims simply that in this case the Shammaites rule leniently and the Hillelites stringently (see M. Ed. 5: I). But insofar as the issue raised by the Houses is found at Yavneh (iv.B.9:9) and is not subject to Ushan consideration, there is no reason to discount the authenticity of this entry.

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The Shammaite opinion is parallel to their view at Demai, ii.A.3: l C-H, and this issue, moot here, is resolved and developed in this tractate at ii.D.5:6 and 7. It may indeed derive from the period before 70.

B. The Time

if Yavneh

3:10 During the Sabbatical Year one who builds a fence between his property and the public domain may dig down to rock level. Joshua: He should use the dirt he digs up to fix the road. Aqiba: He may not do that.

Since the area on the fringe of the individual's land is not normally suitable for cultivation, there is no problem with the individual's digging there to build a fence. The problem is that placing the dirt he digs up on his own land would prepare his field for cultivation. Aqiba does not even allow the person to place the dirt in the road, lest this creates an arable area. The fact that the individual does not intend to cultivate the field is not taken into account.

4:6 One who snips vines or reeds The issue is whether or not one during the Sabbatical year in order who performs permitted labor in to obtain material for weaving or the seventh year must avoid the use as wood-Y ose the Galilean: appearance of doing what is proHe should snip a handbreadth from hibited. Y ose holds that he must, the place at which one normally Aqiba that he need not. Moot at would trim for cultivation. Aqiba: Y avneh, this issue is resolved in He may cut in his usual manner. Ushan times in favor ofYose's view. Exposition of that view takes up the majority of the Ushan and unassigned materials in the unit. See T. 3:19.

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C. The Time qf Usha 3:1-2 At what point in the Sab- The farmer may engage in field batical Year may they begin to labor designed to prepare for the bring manure out to the fields as planting of the crop of the eighth fertilizer for the eighth year? Meir: (= first) year, so long as this does From the time at which fertilizing not indirectly benefit the crop of for the present year normally would the Sabbatical year. Ushan authorcease. Judah: When the ground ities dispute the point in the sevmoisture has dried up. y ose: When enth year after which fertilizing the ground forms clumps. They does not aid the growth of that may make up to three dung-heaps same year's crop. Parallel in issue of ten baskets each per seah-space. and theory to i.C.2: 1, this clearly Simeon: They may create more derives from Ushan times. The dung heaps. development of this issue at M. 3:2 concerns the manner in which the dung may be brought into the field so as to avoid the appearance of fertilizing in the Sabbatical Year. This too is U shan. 3:3 Simeon, Meir and Eleazar b. Azariah dispute the issue of M. 3:2, concerning how the farmer may bring dung into his field without appearing to transgress the restrictions of the Sabbatical Year.

By piling his dung in heaps or by placing it in areas slightly higher or lower than ground level the farmer makes clear that the dung is intended as fertilizer for the following year. Eleazar b. Azariah repeats the position assigned to Meir. His name is out of place in discussion of this clearly U shan concern.

3:4 One who, in the Sabbatical The problem is derivative of that Year, uses his field as a fold must discussed in the preceding entries. build pens to prevent the animals Along with the attribution to Sifrom dropping dung throughout meon b. Gamaliel this provides firm the field and thereby fertilizing it. grounds for placement of these rules As each enclosure is filled with dung in the Ushan stratum. Further Ushan he may move it to a new area, up discussion is at T. 2:15-18. to a total size of eight seah-spaces. So Simeon b. Gamaliel. Ultimately

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he must remove the dung from the enclosures and pile it as required by M. 3:1~3. 3:9 To build terraces (see ii.D.3:8) The problem is that the individual the farmer may bring large stones who removes stones from his field from anywhere, even his own fields. might appear to prepare the field Contractors may bring small stones for cultivation in the seventh year, from anywhere. Yose and Meir dis- which is forbidden. If the stones are very large, he obviously wants pute definition of large stones. them for construction and so avoids this appearance. Professional builders are not subject to this suspicion at all. Attested to Usha by Meir and Yose and continuing the clearly Ushan theme of ii.D.3:5~8, this is firmly placed in the Ushan stratum. See also T. 3:4. 4:5 In the Sabbatical Year one The issue again is how the farmer who cuts branches for lumber may performs permitted labor in a mannot seal the stump in the way nor- ner that makes it clear to observers mally used to cultivate the growth that what he is doing is allowed. of new branches. Judah: One does Judah and the anonymous rule simthe cutting in an unusual manner, ply disagree concerning the type of so as to indicate clearly that he deviation that is required. Condoes not intend to cultivate new tinued Ushan discussion is at T. 3:14~15. branches. D. Unassigned 3:5 During the Sabbatical year In removing stones from the field one may not open a stone quarry the individual may appear to be in his field, unless the field con- preparing the field for cultivation, tains enough stones for three piles forbidden in the seventh year. If the field contains substantial amounts of hewn blocks. of rock, it is clear this is not the man's intent. The rule is attested to Usha by Judah and Simeon b. Gamaliel, T. 3:1~2. Since its basic

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conception is parallel to that of ii.C.3: 1-2, 3 and 4, we have good reason to assign it to Ushan times. 3:6 Same theory as at M. 3:5. Grounds for placement of this rule An individual may tear down a in the Ushan stratum are the same stone wall, provided that he does as in the preceding entry, to which not appear to be clearing the area it is parallel in content and theory. for cultivation. To prevent this Note also the attestation to Usha appearance it must be clear that by Yose and Meir, ii.C.3:9. the individual requires the stones for construction. 3:7 Partially uncovered stones in The large stones clearly are useful a field may be removed only if in construction. Like the preceding doing so requires the efforts of two material, this is Ushan. men. 3:8 Building terraces late in the year prepares the land for cultivation in the following year. The farmer therefore may not do this in the sixth year but may do so during the seventh. He may not build a dirt retaining wall, for this looks like an act of cultivation.

This develops the preceding entries and follows their same theory. In the Sabbatical year the individual may prepare the land for planting in the following year, so long as in doing so he does not appear to transgress. Like what has preceded, this is Ushan. See ii.C.3:9.

4: 1 At first people were allowed to collect large stones from their own fields (see ii.C.3:9). When people began to transgress, each person was permitted only to gather stones from his neighbor's field, and his neighbor from his, so long as they did not engage in a mutual favor.

This depends upon an Ushan law and presents a further development beyond that stage in legal thinking. An individual who takes stones from his neighbor's field clearly requires them for building and does not intend to prepare the land for cultivation.

4:3 They may lease from gentiles fields plowed in the seventh year,

The point is the same as in the anonymous rule at ii.A.4:2A-H.

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but not from Israelites. They may Gentiles are not bound by the reverbally encourage 10 gentiles who strictions of the law. In the eighth perform agricultural labors during year, Israelites therefore may make the seventh year, but not Israelites. use of fields they plowed in the seventh (cf., the Shammaites, ii.A.4: 2A~H). Greeting and encouraging the gentile does not implicate the Israelite in the work, which he himself is forbidden to perform. 5:6 In the Sabbatical Year an artisan may not sell tools used only to perform forbidden field-work. But he may sell tools used to carry out permitted activities.

The artisan may not become an accessory to the other individual's transgression. This notion, that one should prevent others from transgressing, is found in the earliest stratum of this tractate, ii.A.5:8 (the Shammaites' view), as well as in Demai, ii.A.3: 1C~H, ii.B.3: lA~B, ii.C.2:2~5 and ii.D.3:2.

5:7 During the Sabbatical Year a potter may sell each individual no more than five oil containers and fifteen wine containers.

The theory is the same as in the preceding entry. Since the individual is not permitted to carry out a regular harvest and to store what he produces, he should not need many containers. The potter is not allowed to sell him the vessels that would allow him to break the law.

10 So Albeck and Jastrow, p. 444, s.v., hzq. Newman and Danby by contrast translate "physically assist." The Division of Agriculture as a whole refuses to recognize as valid ownership by a gentile of property in the land of Israel. Since the gentile's land is under the Sabbatical restrictions, I see no reason that an Israelite should be permitted physically to work it. By contrast, the notion that polite encouragement may be given the gentile, who is not himself subject to the law, fits the theme of ii.D.5:6, 7 and 9, which permit Israelites to help others so long as by doing so they do not themselves engage in a transgression or definitely aid the other in committing one. This translation also is in line with the conclusion of the present pericope, which notes that, in general, Israelites should greet gentiles so as to encourage good relations with them.

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5:9 A woman may lend tools to This develops the foregoing by a neighbor suspected of violating drawing a fine distinction between the law, but she may not help her lending tools that might be used illewhen it is apparent that she is actu- gaily and actual!J participating in a ally committing a transgression. transgression. iii. Produce Su0ect to the Sabbatical Restrictions Produce that grows in the Sabbatical year is subject to certain restrictions, described here in detail. These restrictions apply to produce that grows and ripens before the seventh year but that is stored in the ground and continues to grow in the Sabbatical year itself (iii.B.5:3, 6:3). They apply as well to produce that sprouts in the seventh year but that takes several years to ripen and become edible. Such produce is subject to the restrictions of the Sabbatical year whenever it actually is eaten, in the first or second year of the cycle (iii.C.5: l ). As Ushans make clear, this means that even after the Sabbatical year, buyers must be careful not to purchase food that grew in the seventh year and that therefore is subject to the Sabbatical restrictions (iii.C.5:5, 6:4). A second principle assumed by Yavneans and Ushans derives from the Houses (iii.A.4: lOA-C). All produce of the Sabbatical year must be allowed to ripen and be used to feed the needy of the people of Israel. This means that, once trees have borne fruit, farmers may not prevent that fruit from developing and becoming edible. Cutting down a tree, for instance, constitutes misuse of food that belongs to all of the people of Israel. A final issue is first debated in Yavnean times (iii.B.6:2) and is fully developed in the period of Usha (iii.D.6:l). This concerns the extent to which the prohibitions of the Sabbatical year apply in Syria and within the various areas of the land of Israel itself. The larger point, iii.D.6: 1, is that the level of restrictions that apply in each area depends upon the duration of time during which Israelites have lived in that area. The longer the Israelites have lived in an area, the greater the level of sanctity of that place and, concomitantly, the more stringent the restrictions that apply. Later authorities thus equate the holiness of the land of Israel with the actual presence there of Israelites.

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A. Bifore 70

4:1 OA-c The House of Shammai: In the Sabbatical Year, once trees have produced fruit, the farmer may not cut them down. The House of Hillel: For certain trees, one may not cut them down right after blossoms or berries appear.

The Houses agree on the basic principle that one may not destroy fruit that is growing in the seventh year. This fruit is the property of all Israelites, to be gathered and used as their food. The issue is one of fact, that is, when do we deem the tree to have borne fruit. The theory agreed upon by the Houses is assumed throughout this unit. The dispute may therefore be authentic.

5:4 Arum and other produce of the sixth year that is stored underground in the Sabbatical YearShammaites: They dig them up with wooden rakes. Hillelites: They may use metal spades, the usual tool.

The issue is familiar from unit ii. The Shammaites want to assure that the individual does not appear to be performing forbidden field work. Since what he is doing is in fact permitted, the Hillelites, by contrast, allow him to do it in the usual manner. This same issue is moot at Yavneh, ii.B.4:6, and is resolved in Ushan times. It thus is possible that this dispute is authentic to the period before 70.

B. 17ze Time qf Yavneh

5:3 If a farmer stored arum underground and, in the seventh year, it sprouted leaves, these leaves belong to the poor. If the poor did not collect them, the farmer must give them a portion of the arum tuber when he unburies it. So Eliezer. Joshua: In such a case, he owes them nothing.

All agree that the leaves are produce of the Sabbatical Year and go to the poor. Eliezer deems the tuber and leaves a single entity. If the poor did not take the leaves, they therefore have a share in the tuber itself. Joshua deems the two parts of the plant to be autonomous, such that the poor have a claim only upon the leaves and not the tuber. Developed at iii.C.5:2 and 5, this is firmly attested to Y avneh. Jacob Neusner - 978-90-47-41637-1 Downloaded from Brill.com02/08/2023 11:54:33AM via Universite degli Studi di Milano

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6:2 In Syria they may not cultivate and harvest produce, but produce that grew on its own and was picked may be processed in the normal manner. Aqiba: Syria is just like the land of Israel itself.

The anonymous rule holds that since Syria is not part of the land of Israel proper, it is not subject to all of the restrictions of the Sabbatical Year. Aqiba disagrees, holding that since Syria is inhabited by many Israelites, it is to be treated just like the land. The unstated theory of the anonymous rule is given explicidy at iii.D.6: 1. Aqiba's theory is taken up by Simeon, iii.C.6:5-6.

6:3 Onions that grew in the sixth year, were left in the ground in the seventh, and sprouted~if the leaves are dark in color, the onions are subject to the restrictions of the Sabbatical Year. Hanina b. Antigonos: The onions are subject if they can be uprooted by the leaves.

The agreed-upon principle is that if the onions grow anew in the seventh year, they are subject to the restrictions of that year. The dispute concerns the secondary problem of how we determine whether or not onions are growing in the Sabbatical Year. Parallel in principle to iii.B.5:3 and attested by a Yavnean authority, this clearly belongs in the Y avnean stratum. Development occurs at iii.C.5: 1 and 2.

C. The Time qf Usha

4: 1OF-H In all years of the Sabbatical cycle, how much fruit need there be on an olive tree for it to come under the restriction found at Dt. 20:1 0-20? Simeon b. Gamaliel disputes.

Israelites are forbidden to cut down trees during a siege. The issue is the minimum amount of produce that may not be destroyed. The problem is autonomous of this tractate and is placed in the Ushan stratum on the basis of the attribution to Simeon.

5: 1 White figs that appear in the Produce that appears m the sevSabbatical Year but that take three enth year is subject to all the peryears to ripen are subject to the tinent restrictions. The fact that the restrictions of the Sabbatical Year particular type of produce will not

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in the second year of the cycle, when they are eaten. Judah: The same applies to Persian figs, which take two years to ripen.

be eaten until after the Sabbatical Year does not change that fact. Placement is on the basis of the attribution to Judah.

5:2 One who stores arum for preservation during the Sabbatical Year must prevent it from sprouting. Meir and sages discuss how this is done.

Storing food grown before the Sabbatical Year is permitted so long as in doing so the farmer does not wind up having planted the produce that he buries. The question of how the farmer prevents this from happening is secondary to the issue presented at iii.B.5:3. Along with the attribution to Meir, this provides firm grounds for placing this at Usha.

5:5 At the end of the Sabbatical Judah's point is familiar from iii.C. Year one may purchase arum im- 5: 1. Since the arum in question mediately. So Judah. Sages: One sprouted in the year before the Sabmust wait until the new produce batical, it is not subject to the restrictions of the seventh year at all. reaches the marketplace. Sages disagree and hold that, because the majority of the growth of the arum occurred in the seventh year, it is subject to the restrictions of that year. Continued Ushan discussion is at T. 4:4. 6:4 Mter the Sabbatical Year they The anonymous rule wants the buyer may purchase produce in the mar- to be certain that the produce he ket when the new produce of its purchases did not grow in the sevsame type has become ripe. Once enth year. Rabbi takes the radical the early ripening produce in one position that once the Sabbatical location is available, produce of its Year has ended, the restrictions that type may be purchased in other applied in that year no longer perlocations. Rabbi permitted the pur- tain. This perspective has no parchase of vegetables immediately at allel in the late stratum of the law. the end of the Sabbatical Year.

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6:5-6 During the Sabbatical Year Simeon qualifies the anonymous they may export produce from the rule, taking the position elsewhere land of Israel to countries outside given by Aqiba (iii.B.6:2), that Syria of the land. Simeon: I have heard has the same status of the land of that they may export the produce Israel itself. These are solid grounds to Syria. They may not import for placement of this rule in the heave-offering from outside of the Ushan stratum. Other Ushan disland to the land Simeon: They may cussion is found at T. 5: 1-2. import it from Syria.

D. Unassigned 4:7-9 Mter what time during the Sabbatical Year may they eat the fruit of trees? They may snack of it when it becomes edible; they may gather it into their homes for use in a regular meal once it has fully ripened and become subject to tithes.

Produce of the seventh year must be put to its normal use, as a food. It therefore is important that individuals not be allowed to gather and eat this produce until it would be deemed ready for such consumption in other years of the Sabbatical cycle. Concern for the general issue referred to here is found in both the Yavnean and Ushan strata of this unit. I see no basis for specific placement of this pericope.

4: 1OD-E Once the fruit on a tree This develops the principle articuis subject to tithes, it is permitted lated at iii.A. 4: 1OA-c in light of the to cut that tree down. facts given in the preceding entry. When the fruit is subject to tithes, it is autonomous of the tree, for it is deemed a fruit in its own right. Specific placement is impossible. 6: 1 Land occupied in the time of Joshua and again after the Babylonian exile may not be cultivated during the seventh year. If it is, the produce may be eaten. Land occupied in the time of Joshua but not

The sanctity of the land, and concomitantly the level of restriction of the Sabbatical year, depends upon the duration of time during which Israelites have lived there. Stating as law what is moot at

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after the exile may not be cultivated. But if it is, the produce may be eaten. Land on which Israelites never setded may be cultivated during the Sabbatical Year, and the produce may be eaten.

Yavneh, iii.B.6:2, and attentive to the power of Israelites themselves within the processes of sanctification this appears to derive from Ushan times.

iv. Restrictions Upon Produce qf the Sabbatical Year The theory of the unit is in place by the Yavnean period, in which we find the principle that oil of the Sabbatical year must be used as a food and not as a lubricant (iv.B.8:9-10). This basic notion-that produce of the seventh year must be put to its usual purpose-is developed by U shans. They make the following points: 1. Since produce of the Sabbatical year is intended for use as food (iv.B.8:9-1 0; see iv.D.8: 1 and 2), it may not be used in any sort of business transaction, e.g., sold as a regular market commodity or used to discharge a debt (iv.C. 7:3-4, iv.D.8:4, 5 and 8; and the apparendy Ushan iv.A.8:3). 2. The produce may not be processed as a market commodity, in large quantities intended for sale. It may be processed only in small amounts, and the individual who does so must make clear to others that he is not engaged in a business activity (iv.C.8:6). 3. One must not cook produce of the seventh year with heave-offering, for if the mixture becomes unclean, the food of the Sabbatical year would have to be burned (iv.C.8:7, under dispute by Simeon). 4. Like other agricultural restrictions, those that pertain to the Sabbatical year apply only to cultivated produce and not to that which grows wild (iv.C.9: 1). As we shall see in detail in Tractate Maaserot, the system of agricultural tithes and restrictions is set in motion by Israelites, who exploit the land of Israel by cultivating food for their sustenance. The second major discussion of this unit concerns the rule that, once produce of a certain type no longer is found in the fields, individuals who have collected that type of food in their homes must remove it so as to make it available to those who are in need. Y avneans refer to the question of autonomous types of produce that have their own

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distinct times for removal (iv.B.9:6-7). In the same vein they question how one carries out the removal of several different types of produce that have been cooked together into a single dish (iv.B.9:5A-E). Ushans have their own interests, which take up a quite basic set of questions concerning removal. They establish divisions of the land of Israel, so that the removal can be carried out according to the particular agricultural conditions in different parts of the country (iv.C.9:2-3). They define the conditions under which a type of produce is deemed no longer to be available, such that the law of removal applies to it (iv.C.9:4). Finally they question who may take produce that has been removed, whether anyone or only the poor (iv.C.9:8). I see no consistent theory which ties together these several ideas. A. Bifore 70

8:3 During the Sabbatical Year Produce of the seventh year may they do not sell produce in stan- not be used in a business transacdard measures of volume, weight tion (iv.C. 7:3-4.) This extends that or quantity. Shammaites: They also principle by preventing the use of may not sell in bunches. Hillelites: standard measures, which would What is not customarily sold in allow the seller to get fair market bunches may, during the seventh value. If the produce is not measyear, be sold in bunches. ured out, the individuals involved in the sale are not culpable of engaging in a regular business transaction. The Shammaites simply add that a bunch is a standard measure. The Hillelites by contrast allow the sale of a bunch, so long as that is not the measure in which the produce is sold in other years of the cycle. Their concern is appearances and not the actual use of the produce in a business deal. Based upon iv.C.7:3-4 and reminiscent of the clearly Ushan rule at Terumot, i.C.l:7, this attribution to the Houses appears pseudepigraphic.

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B. The Time if Yavneh 8:9-10 A hide rubbed with oil of the Sabbatical Year should be burned. So Eliezer. Sages say: The one who smeared it with oil must replace the oil. Aqiba glosses.

This attests to Y avneh the notion fully developed at Usha that produce of the Sabbatical year must be used in its usual manner as a food. Developed at iv.C.8:6 and iv.D.8: 1 and 2, this is firmly placed in the Yavnean stratum.

9:6-7 Fresh herbs, reeds or leaves are removed early in the seventh year, when the ground moisture dries up or when leaves in the field fall off of their stems. Dried herbs, reeds or leaves are removed much later, at the time of the second rainfall.

The anonymous rule holds that dried and fresh varieties of the same produce are deemed different kinds with respect to the law of removal. Fresh produce therefore is removed as soon as no more fresh produce is left in the field. That which is dried, by contrast, may be kept in one's home much later, until all such produce is gone from the fields. Aqiba disagrees, for he is attentive only to the botanical species of the produce. Placement in the Y avnean stratum depends upon Aqiba's attestation and the fact that this unit is parallel in issue to the preceding entry.

9:9 One who receives as an inheritance or gift produce of the Sabbatical Year after the time of removal may keep and eat the produce. So Eliezer. Sages: The sinner may not benefit from the transgression. The one who receives the produce must distribute its value among everyone.

Eliezer takes up the Hillelite view, ii.A.4:2A-H. Since the recipient of the produce is not responsible for the transgression, he may accept and use that which he is given. 11 Sages have the Shammaite view. The produce is tainted by not having been removed. Its new owner

u Eliezer here is not attentive to the circumstances under which the individual received the produce. In this regard, his view is parallel to what is assigned to his name at Terumot, iv.B.S: 1-3, and elsewhere in this division.

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must assure that its value is distributed, just as the produce itself should have been. Attributed to a Y avnean authority and standing in close relationship to an idea assigned to the Houses, this is firmly placed in the Yavnean stratum.

C. The Time qf Usha 7: 1-2 1) All produce that is edible or used for dyeing is subject to the restrictions of the Sabbatical Year. 2) Annuals also are subject to removal. Perennials are not. Meir: Money gained through the sale of perennials is subject to removal, just as it is subject to the restrictions of the seventh year. Sages disagree.

The law of the Sabbatical Year applies not only to foods (Maaserot, i.C.l:l) but also to common market commodities, such as dyes. In the seventh year the earth thus is allowed to rest from production of all market commodities. 2) The law of removal applies only to produce that actually disappears from the field. Placement is on the basis of the attestation to Meir.

7:3-4 During the Sabbatical Year a dyer may dye for himself but not for a fee. They may not gather produce to sell, but if they gathered and had too much, what is left over may be sold. Judah: One who has an opportunity to buy an unclean animal may purchase it and then sell it at a profit, so long as he does not do this for a livelihood. Sages prohibit.

One may not do business with produce of the Sabbatical Year or with other forbidden things. Judah and sages dispute what constitutes doing business. While sages have regard for the individual transaction, Judah is concerned only with what the person does day-to-day as his living. Placement depends upon the attribution to Judah, who applies the common U shan perspective that defines a category, in this case, business, in terms of the perspective of the individual involved. Rabbi and Simeon join in the discussion, T. 5:10.

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7:6 Aromatic plants are classified as dyeing matter. Simeon exempts balsam from the restrictions of the Sabbatical Year, for it is neither a plant nor a fruit.

Supplying specific examples of the rules found in the preceding entry, this is firmly placed in Ushan times. See T. 5:12.

8:6 Produce of the Sabbatical Year The principle is familiar from unit must be processed in an unusual ii, that one must avoid the appearmanner. Simeon glosses. ance of forbidden labor. This idea is debated at Yavneh, ii.B.3: 10, and greatly expanded at Usha, e.g., ii.C.3: 1-2, 3. Placement of the present rule accordingly is on firm grounds. Continued Ushan discussion is at T. 6:27, 28 and 29. 8:7 They may not cook produce The anonymous rule wants to preof the seventh year in heave-offering vent any potential waste of prooil, lest the oil become unclean and duce of the Sabbatical Year (see the produce be made inedible. iv.D.8: 1). Simeon, by contrast, is concerned only with the circumSimeon permits. stances of the moment. The cooking itself does not render the produce forbidden and therefore is allowed. Dependent upon an apparently U shan rule and attested by an Ushan authority, this is firmly placed in this stratum. 9: 1 Produce that grows wild and Produce that grows uncultivated never is cultivated is exempt from stands outside of the Mishnah's systithes and may be purchased from tem of agricultural restrictions (see anyone during the Sabbatical Year. also Maaserot, i.C.l: 1). Mtergrowths, Judah: Produce that might have disputed by Judah, Simeon and been cultivated, but that grows wild sages, present a different problem. in abundance, may be purchased These might have grown on their from anyone in the Sabbatical year. own or they may have been cultiSimeon: All aftergrowths are per- vated in violation of the laws of mitted, on the assumption that they the Sabbatical Year. Judah says we were not cultivated. Sages: All after- use logic to determine whether or

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growths are forbidden, since they might have been cultivated.

not it is likely that the produce was cultivated. Simeon's point is no different. Only sages disagree, holding that a case of doubt is adjudicated stringently. If there is any chance that the produce was cultivated, it may not be purchased in the Sabbatical year.

9:2-3 For purposes of the application of the law of removal the land of Israel is divided into three regions, and each region is divided into three areas. Simeon: There are three separate areas only within Judea. Sages: All the regions are considered one for purposes of the removal of olives and dates.

Produce becomes ripe, is harvested and finally disappears from the field at different times in different places within the land of Israel. For this reason the land is divided into areas, within each of which the removal can be carried out as appropriate to that specific place. Placement is on the basis of the attestation by Simeon. Continued Ushan discussion is at T. 7: 11 and 15.

9:4 They may retain in their homes produce of the Sabbatical year if produce of the same type is growing in the fields, accessible to all. Yose: They may retain it even if produce of its type is growing only in privately-owned courtyards. They may retain in their homes choice grain of the Sabbatical year if lateripening grain still is found in the fields. Judah: They may retain it even if only winter grain is found in the field, so long as that winter grain began to ripen before the end of the summer.

When produce of a certain type is not available in the fields, Israelites who have collected and stored that kind of produce in their homes must release it for use by all who are in need. The issue here is what constitutes availability of a particular kind of produce. In each case the anonymous rule holds that the law of removal takes effect as soon as the produce is not readily available for anyone to collect and eat. Judah and Yose, by contrast, hold that the law of removal does not take effect until the type of produce has entirely disappeared from the land. Placement is on the basis of the attributions to Judah and Yose.

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9:5F-G Simeon: All vegetables are regarded as a single species with regard to the laws of removal + example.

Simeon holds that all vegetables are subject to removal at the same time. So long as any vegetables are growing in the field, the householder need not remove that which he has stored in his house. Rejecting the basic supposition that underlies iv.B.9:5A-E, this is firmly placed in the Ushan stratum.

9:8 When the time of removal Judah holds that what is removed comes, the individual sets aside is comparable to a poor-offering, and sufficient produce for three meals may be eaten only by those who for each member of his household are in special need. Y ose by conand then removes the rest. Judah: trast states that removal is intended Only the poor may eat the pro- simply to assure that all Israelites duce that has been removed. y ose: have equal access to the produce Poor and rich alike may eat it. of the Sabbatical Year. Rich and poor therefore may take what has been removed. Placement is on the basis of attribution to Ushan authorities. Continued U shan discussion is at T. 8: 1.

D. Unassigned 7:5 Examples of produce that falls under the rules of iv.C.7:1-2.

This can derive from no earlier than Ushan times. It is discussed by Ushan authorities, T. 5:11.

7:7 If produce of the seventh year is inextricably mixed with produce of a different year, all of the produce becomes subject to the laws of the Sabbatical Year. If, however, the seventh-year produce can be removed from the mixture, the other produce is unaffected.

This rule depends upon clearly Ushan notions. See Terumot, vii.C. 10:1, 3, 8, and 11A-D. Rejecting ideas current at Yavneh (Terumot, vii.B.l 0:11 E-H), it cannot derive from earlier than the U shan period.

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8: 1 That which grows in the Sabbatical Year must be used for its normal purpose, either as a food, emollient or as cattle feed. If it has a secondary use as a wood-fuel, and the individual gathered it for that purpose, he may burn it.

Produce of the seventh year must be used in its ordinary fashion, as a food or lotion. This assures that the land's yield will be available to meet the basic needs of Israelites during the seventh year. This principle, that consecrated produce must be put to its usual purpose, is known from Yavnean times, Ternmot, viii.B.11:3. Attested to Yavneh and Usha, T. 5:15, this particular application of that principle may be as early as Y avnean.

8:2 Produce of the Sabbatical Year must be used for its usual purpose, eating, drinking or anointing. This same law applies to heave-offering and second tithe, except that clean oil of the Sabbatical Year may be kindled in a lamp.

The point is the same as in the preceding entry. This construction appears to be U shan, as the parallels at T erumot, viii. C .11: 1 and Maaser Sheni, i.C.2: lA-H show.

8:4 An individual may say to a worker, "Here is an issar as a gift. Gather vegetables of the Sabbatical Year for me." He may not say, "In return for this issar gather vegetables for me."

Produce of the Sabbatical year may be given as a gift, but it may not be purchased (iv.A.8:3). This rule thus establishes a legal fiction by which the individual may acquire produce of the Sabbatical year without actually purchasing it. Dependent upon an apparently Ushan rule (iv.A.8:3), there is no evidence that this law is known before U shan times.

8:5 Produce of the Sabbatical Year may not be used to pay the wages of hired laborers. It may however be exchanged for food or water.

The point is familiar from before. The seventh year-produce may not be used in a financial transaction, e.g., to discharge a debt. It may, however, be given as a gift or traded for other food.

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8:8 They may not use money Money gained from the sale of progained from the sale of seventh duce of the Sabbatical Year has year-produce to purchase non-edi- the same consecrated status as that bles or to discharge debts. If they produce. It therefore may not be do, they must purchase and eat used in a financial transaction. If other produce of equal value, fol- it is, it must be replaced with other lowing the restrictions of the sev- money, to be treated as though it enth year. If one used seventh were derived from seventh yearyear-oil to treat leather, that oil produce. The notion of the replacement of misused consecrated things must be replaced. is detailed at length in unit iv of Tractate Terumot. The present construction may be as early as Yavnean. See Shebiit iv.B.8:9-l 0. 8: II One may bathe in a bath heated with straw and stubble of the Sabbatical Year. But a highly regarded person should not do so.

Since the straw is available for use as animal fodder, it should not be used as a fuel (iv.D.8: 1). The bather presumably is not responsible for the transgression and may therefore enjoy the bath. Rejecting the position assigned to Eliezer, iv.B.8:9-10, this may be Yavnean or later.

v. 7he Release qf Debts in the Sabbatical Year

In the seventh year all loans made between Israelites are cancelled. The creditor may exact no payment from the borrower (Dt. 15:1-2). In the period before 70 (v.A.l 0:3-4, v.D.l 0:2H-I), a legal fiction is designed to prevent this cancellation of debts. The lender writes a document, called a prozbul, that turns the debt over for collection by a court. Since private, but not public, loans are released in the seventh year (see v.D.l0:2F-G), the prozbul allows the collection of the debt despite the advent of the Sabbatical year. The theory of the prozbul is developed by Yavneans. They hold that only secured loans may be turned over to a court (v.B.l 0:6, 7). This is because, having the security, the creditor can claim already to have been repaid, even before the seventh year. The court simply presides over the exchange of the security for a cash payment. Y avneans further detail the correct pro-

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cedure for the case of a borrower who has no property to which to secure the loan. Ushans do not carry forward the preceding discussion in specific ways. Instead, they provide a systematic account of quite basic matters of definition. Specifically, they detail the sorts of debts that are cancelled in the Sabbatical year (v.C.l 0: l ). Their point is that loans, but not accounts receivable, are released. Ushans therefore go ahead to describe the conditions under which a sum of money owed, for instance, as wages is deemed a loan. The unassigned material contains several points of general interest that cannot be placed within the unfolding of the law. A prozbul or other document may not be ante- or post-dated, so as to give the creditor an undue right to collection (v.D.l 0:5). A creditor must tell a borrower that a loan has been released by the seventh year (v.D.l 0:5). If the borrower should anyway desire to repay the loan, this is allowed and, indeed, is praiseworthy (v.D.l 0:9). A. Bifore 70 10:3-4 Hillel the Elder saw that The prozbul is a legal fiction that before the Sabbatical Year people prevents the cancellation of debts refrained from lending money. He in the Sabbatical Year by placing instituted the prozbul, a document them in the hands of the court. that authorizes a court to collect a Discussion continues in Yavnean loan on the lender's behalf. Such times, v.B.l 0:6 and 7. It therefore a loan, owed to a court, is not can- seems likely that the notion of the celled by the Sabbatical Year. prozbul derives from the period before 70.

B. 7he Time qf Yavneh 10:6 They may write a prozbul only if the borrower owns land. If he does not, the lender transfers to him some miniscule amount of property. Huspit: In writing a prozbul they may rely upon the borrower's wife's property or, if the borrowers are orphans, upon their guardian's property.

The property is used to secure the loan (see v.D.l0:2H-I). Since even the smallest piece of land has lasting, indeterminate value (so Aqiba, Peah, i.B.3:6), it serves this purpose. If the borrower does not himself own land, property owned by others and transferred to him will serve. Since v.A.l 0:3-4 does not

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mention the need to tie the loan to property, this rule, attested by Huspit, clearly develops the earlier notion. Along with the Aqiban parallel, this provides good grounds for placing this entry at Y avneh. 10:7 A bee-hive that sits on the ground but is not attached to itEliezer: It is real estate, and therefore they write a prozbul against it. Sages: It is not real estate, and they do not write a prozbul against it.

This is a secondary development of the preceding. While the attribution to Eliezer is ambiguous, I assume this belongs at Yavneh, with the other discussion of this particular aspect of the prozbul.

C. The Time if Usha 10: 1 In the Sabbatical Year, all loans are cancelled. Other debts, such as wages or accounts payable, are not cancelled. Judah: When a buyer incurs a new debt, his former debt with the same shopkeeper becomes a loan and is cancelled in the Sabbatical Year. Yose: Wages for work completed during the seventh year are deemed a loan made by the worker to the employer and therefore are cancelled. If the work continues after the Sabbatical Year, the wages are simply a debt and are not cancelled.

Dt. 15: 1-2 is clear that in the seventh year loans, but not other debts, are cancelled. The problem is how to determine when a commercial debt becomes a loan, such that it should be cancelled. Judah and Yose offer distinct criteria. Judah notes that as a shopkeeper continues to sell on credit, previous balances-which he does not expect to collect immediately-become loans. y ose adds that if a worker has ceased working and not collected his wage, he must understand that wage to be a loan to the employer. This too is cancelled. Further Ushan discussion is at T. 8:3.

D. Unassigned 10:2A-E As for a debt incurred on New Year of the year following the Sabbatical-if the month is intercalated, the debt is cancelled.

In an intercalated month, the first day of the new month is also the last day of the preceding month. The point here therefore is straight

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If the month is not intercalated, the debt is not cancelled.

forward: A debt incurred on the last day of the seventh year is cancelled. The specific case cited here contradicts the basic rule of v.C.lO:l. I see no way of placing this entry within the unfolding of the law.

10:2F-G Fines and penalties owed by felons are not cancelled by the Sabbatical Year.

These are not loans. Under the rule of v. C .1 0: 1 they therefore are not cancelled. Dependent upon an Ushan principle, this too must derive from no earlier than Ushan times.

10:2H-I Secured loans and loans handed over to a court are not cancelled by the Sabbatical year.

The security gives the lender an item of sufficient value to repay the loan. Since the secured loan is never actually outstanding, it is not cancelled in the seventh year. This same point was made at v.B.l 0:6.

10:5 An ante-dated prozbul is valid; a post-dated one is invalid. Antedated bonds are invalid; post-dated ones are valid. The lender drafts a separate prozbul for each of his outstanding loans.

The creditor may not date a prozbul or bond so as to allow him to collect money to which he is not entitled. But he may give away the right to collect the funds, e.g., by ante-dating a prozbul, which turns over to the court the right to collect, or by post-dating a bond, which prevents him from collecting on the bond until the future date. This singleton cannot be placed within the unfolding of this tractate's law.

10:8 In the seventh year a lender must refuse to accept repayment of a loan and must inform the borrower that the loan is cancelled. If

This truth-in-lending statute assures that the borrower knows that he need not repay the loan and that his doing so is completely voluntary.

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the borrower states that he wishes There is no basis for placing this anyway to pay the loan, the lender in the unfolding of the law. then may accept the payment. 10:9 Sages are pleased with one who voluntarily repays debts in the Sabbatical Year. + Two other cases in which sages are pleased with one who keeps an agreement even though by law it is invalid.

III.

This continues the thought of the preceding entry. It offers no grounds for placement within the history of the law.

CoNCLUSION

Certain ideas in this tractate derive from the period before 70. These include the concept of the prozbul, on the one hand, and, on the other, the idea of general importance, that each individual is responsible to prevent others from transgressing. The generative issue that stands behind the tractate as a whole and accounts for the majority of its material, however, still is under dispute in Y avnean times and is accepted as normative only in Usha. This idea, that the concrete effects of field labor are not the sole basis for determining its permissibility in the Sabbatical year, parallels the generative idea of Tractate Kilaim. For both tractates, Israelites' perceptions and intentions serve as the standard by which conformity to God's law is determined. This distinctively Mishnaic point of view represents an important step beyond the Yavnean materials contained in each tractate, which judge actions solely in light of their material consequences. This shift in attitudes within the Mishnah is particularly important when we consider the view of Scripture's priestly source, from which the basic ideas of both of these tractates derive. In that view, order is a precondition of holiness. This idea is developed in the priestly account of creation, found at Gen. 1: l-2:4a. God establishes an ordered and hierarchical world, with living things created in sequence of ascending importance: plants, animals and then human beings. Each is created according to its kind. For the priestly source creation thus is "an act of ordering, the purpose of which is to make the world perfect and thus prepare it to be made holy" (Mandelbaum, p. 3). The actual sanctity of the land of Israel depends upon God's designating it as holy. The Sabbath and, like it, the Sabbatical year are made holy by God's

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proclamation of the day of rest, which marks the completion of creation. Compiled during and after the exile that followed the destruction of the first Temple, the priesdy rules regarding Israelites' yearly planting of their fields and special use of the land during the seventh year thus demand that these Israelites "restore the world from its present condition of chaos to its original orderly state ... so to make the world ready once again for sanctification" (Mandelbaum, ibid.). This priesdy view, which claims the existence of a transcendent and unchanging order, is reflected in the Y avnean materials before us. Y avneans too look for concrete indicators of what is right and wrong, holy and profane. In the Ushan period, by contrast, we see an important step beyond this earlier picture. While Y avneans had Israelites reconstruct a preordained order of creation, these later authorities regard Israelites as imposing order upon their world and so actually participating in the processes of creation and sanctification. For the specific case of Tractate Shebiit, this means that, in the Ushan view, the sanctification of the Sabbatical year depends upon the Israelites themselves. They determine when in the sixth year the restrictions of the seventh begin to apply. Through their intentions and perceptions Israelites further establish exacdy what is permitted and forbidden during the holy time. In perhaps the tractate's most striking statement, an apparendy Ushan rule claims that the very sanctity of the land of Israel is in direct relation to the amount of time Israelites have dwelled upon it. In the view of Leviticus, the land is sanctified by God alone. In Tractate Shebiit, Israelites add to the holiness of the ground upon which they dwell. Viewed as a whole, the message of Tractate Shebiit thus is that the sanctity of the land of Israel and of the seventh year is activated and regulated by the intentions and actions of common Israelites. This same notion, we shall now see, is foremost in Tractate Terumot, which ascribes powers of sanctification to Israelites who set aside some of the produce of the land as the consecrated agricultural offerings ordained by Scripture.

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CHAPTER SIX

THE DEVELOPMENT OF THE TRACTATES: TERUMOT

I.

INTRODUCTION

A single fact about heave-offering interests the Mishnah's authorities and generates all of their discussion in this tractate. This fact is that heave-offering is holy. As Num. 18:8-from which the concept of heaveoffering is derived-indicates, it is a sanctified Holy Thing, comparable to any animal sacrifice placed upon the altar of the Temple in Jerusalem. Heave-offering is the property of priests and may be eaten only by them and their families (Lev. 22:10-14). To eat heave-offering these individuals must be in a high state of cultic purity, just as is the case for eating other holy offerings. The central point for the authorities of Tractate Terumot, then, is that this agricultural gift, paid by Israelites to God's representatives, has a high level of consecration. With this much established, Mishnah Terumot takes up a very specific line of questioning. It wants to know, units i-ii, how and why this gift to the priest, comprised of produce grown upon the land of Israel, comes to be holy. Most of the produce of the land may be eaten or otherwise used by anyone, without restriction. How does heave-offering come to be different? The second, closely related, issue is the effect this holy produce has upon other, secular, food with which it is mixed (unit iii). Does the heave-offering impart its own consecrated status to that other food, such that all must now be deemed holy? This second issue is expanded to talk about other situations in which heave-offering is used as though it were secular, for instance, cases in which it is eaten by a non-priest (units iv-vii). Finally, to conclude their essay, the authorities of Tractate Terumot discuss the conditions under which heaveoffering ceases to be holy, the end point of the process that began with its initial sanctification (unit viii). In all, Tractate Terumot covers the rabbinic notion of sanctification that underlies this division as a whole. In discussing how things become holy, it parallels the topic of Tractates Peah and Bikkurim. Concerning the care and protection of consecrated produce, its topic is like that of Tractate Maaser Sheni. Together these tractates present a rabbinic

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theory of sanctification. They detail, that is to say, the locus and means of sanctification that the Mishnah's authorities understood to be operative in their own day. The questions through which the Mishnah's rabbis approach this topic are in place in Y avnean times. Y avnean legislation forms the backbone of each of the topical divisions of Tractate Terumot. As we saw clearly in the cases of Tractate Kilaim and Shebiit, however, in continuing along thematic lines established by Yavneans, Ushans incorporate their own, distinctive, attitude. Indeed, the divergent legal perspectives held by Yavneans and Ushans, with which we have become familiar in those other tractates, inform as well the two major strata in the formation of Tractate Terumot. Yavneans, again, depict a pre-ordained, transcendent order in the world. Through their actions, Israelites manipulate holiness in ways predictable on the model of a physical substance. 1 In this view, Israelites' own perspectives and intentions play no role in determining what is or is not holy. Israelites' power, rather, is limited to their ability physically to manipulate the location of that which represents God's share of the crop of the land of Israel. For Ushans, like Yavneans, Israelites who pay agricultural offerings transfer to their proper recipients shares of produce that, because they are owed to God, are understood to have a status of consecration. Yet in depicting what Israelites can do with holiness, Ushans see as central the people's own desires and perceptions. These internal aspects of the Israelite's consciousness are envisioned to control holiness in ways that Yavneans' attention to physical transfer precludes. In the Ushan understanding, that is, the will of the Israelite to consecrate food brings a status of sanctity upon that food. Physical actions are secondary, such that, according to Ushans, a wrongly executed physical separation of heave-offering still yields a consecrated priestly gift. This is the case so long as, in performing the separation, the individual formulated proper

1 Yavneans, for instance, do not allow the separation from one batch of the heaveoffering required of a different batch, since what the individual does with the one heap of produce has no physical impact upon the other, distinct batch. This same approach is found in Yavnean materials in Tractate Maaser Sheni, which deem the redemption of second tithe to be valid only if the householder physically exchanges the second tithe produce and coins. Sarason, "Zeraim," is correct that this division as a whole does not view holiness as a physical property of certain produce. Still, as we shall see in detail, Yavneans do limit the Israelites' powers over consecration to the transferring of that status in ways comparable to the manipulation of physical entities.

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intention. The attitude of the common Israelite further determines the effect the consecrated offering has upon other produce with which it is mixed or cooked. This attitude, that is, and not the physical character of the dish, takes precedence. Finally, the Israelite's own perception that food no longer is worthy of a status of consecration establishes the point at which what was holy again is deemed secular. For Ushans, holiness thus is not transferred and maintained according to physical laws of exchange. Israelites rather manipulate it-bringing a status of holiness to bear upon certain produce and later removing that status again-according to their own will, without regard for concrete acts of transfer such as are deemed central to the preceding generation. 2 Before turning to the specific rules through which each generation of authorities presents its point, we need to review those Scriptural passages upon which the tractate depends. This will allow us as well to discuss the Scriptural derivation of Mishnah's heave-offering. Then the Lord said to Aaron, "And behold, I have given you whatever is kept of the offerings made to me, all the consecrated things of the people of Israel; I have given them to you as a portion, and to your sons as a perpetual due. This shall be yours from the most holy things, reserved from the fire; every offering of theirs, every cereal offering of theirs and every guilt offering of theirs, which they render to me, shall be most holy to you and to your sons. In a most holy place shall you eat of it; every male may eat of it; it is holy to you. This also is yours, the offering of their gift (ternmat matanam), all the wave offerings of the people of Israel; I have given them to you, and to your sons and daughters with you, as a perpetual due; everyone who is clean in your house may eat of it. All the best of the oil, and all the best of the wine and of the grain, the first fruits of what they give to the Lord, I give to you." (Num. 18:8-13) An outsider shall not eat of a holy thing. A sojourner of the priest's or a hired servant shall not eat of a holy thing; but if a priest buys a slave as his property for money, the slave may eat of it; and those that are born in his house may eat of his food. If a priest's daughter is married to an outsider she shall not eat of the offering of the holy things. But if a priest's daughter is a widow or divorced, and has no child, and returns to her father's house, as in her youth, she may eat of her father's food; yet no outsider shall eat of it. And if a man eats of a holy thing unwittingly, he shall add the fifth of its value to it, and give the holy thing to the priest. (Lev. 22:10-14) 2 The same perspective appears in the Ushan stratum of Tractate Maaser Sheni, which holds that a status of holiness may be transferred from produce to coins or vice versa even if there is no sale of the one for the other and even if the transfer occurs between objects located in different cities.

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Num. 18: 8-13 delineates those offerings that the people of Israel contribute to the support of the Aaronide priesthood. Mter discussing Temple-offerings, parts of which belong to the priests, the passage turns to agricultural dues. It is difficult to determine the number and nature of the offerings listed in vss. 11-13. "The offering of their gift," vs. 11, appears to be a general term, referring to all agricultural gifts that are eaten by the priests and including wave offerings (vs. 11 ), the best of the oil, wine and grain (vs. 12) and first fruits (vs. 13). People who stand behind the Mishnah, however, have read "the offering of their gift" in conjunction with vs. 12's "best of the oil, wine and grain, the first of them." In this manner they identify a single agricultural gift, distinct from the "first fruits" of vs. 13. In Mishnaic parlance this gift is called "heave-offering" (terumah), although it is also known by the term "first," suggested by vs. 12 (ii.D.3:6-7). 3 A. T erumot bifore 70 The Houses, ii.A.4:3, dispute the quantity of heave-offering to be separated from each batch of produce. Their underlying assumption is that this quantity depends upon the temperament of the individual who owns the produce. That is to say that, as in the case of any charitable contribution, certain people are expected to be more generous than others. While the issue discussed by the Houses is basic to any consideration of the separation of agricultural gifts, it plays little role in the development of the law. Later authorities assume that the individual will separate the quantity indicated by the Hillelites to be average, one fiftieth of the crop. At the same time, however, these later rabbis legislate that the actual separation must be carried out through an estimation, not an exact measurement, of the quantity of produce being taken as heave-offering. The Houses' discussion therefore has little actual weight in later deliberation.

3 On this passage see Eissfeldt, pp. 81-83, and Snaith, pp. 266-267. Sarason, Demai, pp. 6-8, discusses the problem of the origin, within the biblical sources, of the Mishnah's tithes and other agricultural offerings. Further grounds for the Mishnah's identification and description of heave-offering in particular is at Neh. 10:37a, which refers to offerings of "the first of our coarse grain, and our contributions (terumatenu), the fruit of every tree, the wine and the oil."

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B. Terumot in the Time qf Yavneh

The basic Yavnean datum of the tractate, drawn from Scripture, is that heave-offering comprises a consecrated offering, comparable to animal sacrifices offered and eaten in the Temple. Yavneans want to know how and why produce that an Israelite sets aside becomes holy, and they further question what happens when holy produce comes into contact with objects and foods within the secular world. Yavneans thereby develop a complete picture of the processes of sanctification and desanctification. The Y avnean understanding of how produce comes to be holy is common to all of the law of this division. Since God provides the land upon which Israelites grow food, a share of their crops must be paid to God's representatives. For Yavneans, the physical act of separating heave-offering represents a determination on the part of the householder that what he has separated is to comprise this share. Like all that belongs to God, it henceforth is deemed holy and, accordingly, may be eaten-in the case of heave-offering-only by a priest. Since the lien held by God upon the remainder of the batch has now been paid, that produce, by contrast, may be eaten by anybody. 4 Particular to the Yavnean perspective, as distinct from Ushan law, is the notion that God's share of produce is removed from the crop and maintained solely through physical actions. Yavneans, for instance, view each separate batch of produce as a distinct entity from which God's share must be paid independently. Since the householder's actions in separating heave-offering from one batch have no physical effect upon the other batch, they leave the produce in that distinct batch in an untithed state (i.B.l :5). This is the case even if the householder takes from one batch sufficient produce to pay the heave-offering required of all of the produce. If, by contrast, all of the produce is the same as regards state of cleanness, year of growth, species and certain other characteristics, the Israelite may place the several batches together, so as to create a single entity. Now the physical action of separating heave-

4 The Mishnah is concerned only with the designation and separation from the produce of God's share. It has no comparable interest in the actual payment to the priest of this produce, a topic on which the Division of Agriculture offers no legislation. While the division certainly expects the produce to go to its rightful recipient, its own interests, in the role of the Israelite in the processes of sanctification, lead it to ignore the concern for the maintenance of the priesthood that, in Scripture, is central.

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offering clearly pertains to all of the produce, such that it is effective in preparing that produce for common consumption. The same notion presumably underlies the Y avnean determination of the maximum percentage of a batch that has the potential, upon the designation of the householder, of taking on the consecrated status of heave-offering (ii.B.4:5). All authorities agree that not all of a batch can be designated holy. Such a designation would not physically distinguish God's share from what the Israelite takes as his own. It leaves the batch physically unchanged and therefore is invalid. If heave-offering is mixed with unconsecrated produce, the whole mixture may need to be treated as heave-offering (iii.B). This is the case if a large quantity of heave-offering is mixed with the unconsecrated food, such that the batch as a whole is deemed to take on a sanctified status. If, by contrast, a small amount of heave-offering is mixed with much unconsecrated food, the holy produce is understood to be so thinly distributed as to take on the character of the unconsecrated food with which it is mixed. All of this produce therefore may be eaten by a non-priest. 5 In accordance with their general perspective, Yavneans apply this rule only if there is a physical mixing of the priestly gift and other produce. Ushans, by contrast, will apply the law of neutralization in a much wider range of cases, including those in which heave-offering is not physically mixed with common food. Heave-offering planted as seed yields a crop in the status of heaveoffering (vi.B.9:4), since the crop is deemed a physical extension of the original seed. Y avneans however are not concerned that heave-offering be cooked or otherwise prepared with secular food (vii.B.1 0:11 E-H). So long as the heave-offering remains distinct and can be removed from the dish, so as not to be eaten by the non-priest, it has no effect upon the produce with which it was cooked. 6 5 Sarason, "Zeraim," pp. 95-96, suggests that the rule for neutralization "recalls Aristode's notion of 'predominance,' viz., that 'if one component is predominant in bulk, ... then the mixture results in fact in a change in the weak component into the predominant one"' (citing Sambursky, p. 12). Note however that even a small amount of heave-offering, slighdy more than one percent of a batch, imparts its own status to the produce with which it is mixed. So the issue for the rabbis, unlike Aristode, is not the relative bulk of each component in the mixture but some other, less tangible criterion. The same rabbinic view of mixtures, with the same divergence from the Aristotelian theory, occurs at Kilaim, ii.C.2: 1--2 and v.D.9: I. In those cases the mixture is classified as that which the crop or fabric that results from it appears to be. 6 Since the mixture contains produce of different kinds, the heave-offering is recognizable and remains distinct from the unconsecrated food. For this reason neutralization does not apply.

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Active in each of the tractate's topical sections, Yavneans establish basic ideas regarding the mechanics of separating heave-offering and outline the punishments for those who, in one way or another, transgress the pertinent restrictions. While this constitutes the fundamental data with which Ushans will work, the Ushan materials do not develop the specifics of the Y avnean ideas. This is the case except for one quite central instance. The Yavneans Joshua and Eliezer dispute an issue of basic importance within the Mishnah's legal system as a whole. The view of Joshua sets the stage for the analysis of the topic of heaveoffering carried out in the Ushan period. Before turning to the Ushan materials, let us therefore review the details of Eliezer and Joshua's argument. Eliezer and Joshua dispute the role played by the perceptions and intentions of common Israelites in determining culpability for wrong actions, on the one hand, and the validity of right actions, on the other. Eliezer, for his part, is clear that the privileges and restrictions of the agricultural laws operate mechanically. Extenuating circumstances, such as an individual's intention in performing a deed, are of no weight. In Eliezer's view it therefore is of no consequence that an individual who turns out not to be a priest ate heave-offering under the conception that he is a priest. Nor is it important to Eliezer that a non-priest who eats heave-offering has no way of knowing that what he is eating is a priestly gift (iv.B.8: 1-3). Eliezer holds that since, objectively, the individual did what is prohibited, he is culpable. Joshua, by contrast, claims that an individual may be held culpable only if he could have known that his actions are prohibited. If he eats heave-offering under the lifelong assumption that he is a priest, and only afterwards it turns out that he is not, he is not held liable. The individual's perception of an act thus determines whether or not it constitutes a transgression. This notion, that the privileges and restrictions of the agricultural system are activated by the intentions and perceptions of Israelites, forms the central ideology of the U shan stratum in this tractate and, as we have seen, in Tractates Kilaim and Shebiit. As our review of the Yavnean materials showed, however, that attitude is quite foreign to Joshua's own generations of masters. Agreeing with the view of Eliezer, these authorities generally do not see intention or perception as determining the character of an act.

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C. T erumot in the Time qf Usha The Ushan contribution to this tractate is to read together the Yavnean picture of the processes of sanctification with Joshua's view concerning the primacy of the intentions and perceptions of Israelites. Ushans, that is to say, no longer view holiness in physical terms, claiming that it is manipulated only through physical acts of transfer. They understand holiness, rather, to be a function of the desires and perceptions of the Israelite householder who separates the priestly gift, protects it in his secular domain and ultimately turns it over to a priest. Through these intentions and perceptions, Ushans hold, the Israelite controls what will be holy, determines the proper conditions under which that sanctified produce must be maintained and, finally, establishes the circumstances under which the produce ceases to be holy. For Yavneans, Israelites' physical actions alone determine what will be holy. These physical actions are efficacious only if they conform in all respects to Yavneans' conceptions of present norms and unvarying rules. Ushans, by contrast, claim that physical actions are secondary to the Israelite's purposeful will. Holiness for Ushans thus functions as a reflex of the desires and attitudes of common Israelites, not as a result of the simple physical processes and established procedures through which food is set aside for a priest. The Ushans' ideology is first expressed in their notion of how produce comes to have the status of heave-offering. Ushans state that this depends upon more than the whim of an Israelite who happens to set some produce apart from the rest of the batch (i.C.l:l). Validly to separate heave-offering the Israelite must be capable of formulating the intention to render that which he separates holy. Individuals not deemed to have powers of intention therefore are excluded from separating heave-offering. In a common Ushan idea, these authorities further require that, having formulated the intention to separate heave-offering, the individual make an oral declaration through which he expresses his plan (ii.C.3:5, ii.D.3:8). Through this oral declaration intention is rendered efficacious. The net result of the Ushan picture is that, through thought, word and, only at the end, deed, the Israelite determines which produce and how much of it is to be holy. This primacy of intention is apparent in the Ushan laws concerning the conditions under which a wrong separation is deemed valid. We know from the Yavnean stratum that produce in one batch may not be separated as heave-offering for produce in a different batch. This

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is because the physically distinct batches cannot both be affected by a separation of heave-offering from only one of them. Ushans disregard this physical problem. They state that so long as the householder who designated and separated heave-offering did so with proper intention, even if the specifics of his actions were incorrect, that which he has separated is a consecrated priestly offering (i.C.2: 1, 2, 4, 3:3-4). The same idea appears in the Ushan discussion of the laws for a non-priest who eats produce that might be heave-offering (iv.C. 7:5-7). If one of two batches contains heave-offering, but it is not known which, an individual who eats one of them is not culpable. He may simply declare that the other batch, which he did not eat, contains the priestly gift. Someone else who subsequently eats the other batch may make the same claim, and he too is not culpable. The issue for Ushans is not the indisputable fact that someone certainly has eaten heave-offering. Rather, the perception of each individual that he did not eat the holy produce is primary and determines his culpability-or lack of culpability-for what he has done. Y avneans are clear that, whenever a farmer sows heave-offering as seed, the crop that results has the status of heave-offering. The farmer must cultivate this crop and, when it ripens, sell it to a priest at the low price of heave-offering. Ushans, again, are concerned with the intentions of the Israelite who planted the seed. If he did so purposely, then, as the Y avneans claim, he is culpable and must suffer for his misdeed. What if he planted the seed without knowing that it was heave-offering and later discovered his error? Now Ushans refuse to deem him culpable. He may plow up the field so as to avoid growing the sanctified crop of heave-offering seed. On the one hand, he may not make personal use of what he now knows is heave-offering seed. On the other, he is not deemed a transgressor and is not made to suffer additional financial loss by being forced to continue cultivating the sanctified crop. Unlike Yavneans, Ushans are clear that heave-offering imparts its own status to unconsecrated food with which it is cooked. This is the case whenever heave-offering flavors the secular food. For if this happens, even if the Israelite is able to remove the consecrated produce from the dish, he still will perceive himself as having benefited from the flavor which it gave his own common food (vii.C.l 0:1, 3, 8, llA-D). Judah carries this idea to its logical conclusion. If the householder does not desire the flavor that the heave-offering imparts, his unconsecrated food remains unaffected. The effect that holiness has within the secu-

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lar world thus is mitigated by the perceptions-the likes and dislikesof common Israelites. Anonymous materials that express this same theory presumably derive from Ushan times (viii.D.ll:4-8). These hold that produce in the status of heave-offering loses its consecrated status at the time at which a priest or Israelite no longer deems it useful as food. Then it may be consumed by anyone, just like ordinary produce. In light of this idea, the anonymous materials list a variety of manners in which one may determine whether or not an individual still considers the produce edible or worthy of his continued concern. The Yavnean picture of sanctification's being manipulated only through physical separation and exchange gives way in the Ushan period to a highly metaphysical understanding of holiness. In this understanding, sanctification revolves around Israelites. Their intentions determine what is to become heave-offering; their perceptions assure that the heaveoffering is not misplaced and destroyed through sacrilege; and, according to Ushans, common Israelites' own attitudes towards heave-offering determine when the holy has become secular, such that it may be consumed by anyone. Through these ideas Ushans broadly reinterpret the Yavnean material and present a theory of sanctification that comprises the focus of this tractate as a whole.

II.

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i. The Designation and Separation

rif Heave-Offering

The unit focuses upon two issues. First, it delineates the manner in which heave-offering validly is designated and separated. This is a problem in particular if an individual owns two different batches of produce and desires to separate from one of them the heave-offering required of both. Second, it details what sorts of individuals are permitted to separate heave-offering in the first place. The point here, made in the U shan stratum, is that, to do this, the individual must be able to formulate and express the intention to consecrate produce as a priestly gift. Y avneans legislate concerning the former topic. They state that the produce from which heave-offering is to be separated must constitute a single, homogeneous batch (i.B.l:5). This means that the produce must all be in the same status as regards tithing and share other

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characteristics as well. While Ushans make explicit that the produce should be of the same species 7 and status of cleanness (i.C.2: l, 2, 4), they are clear that even if the individual fails to meet these criteria, if he separates heave-offering with proper intention, his separation is valid (see also i.C.3:3-4). The distinctive Ushan perspective is apparent again in the rule for who may separate heave-offering. Ushans rule that validly to do this, the individual must be conscious of the character of the act in which he is involved. He is not simply setting aside an amount of food as a tax, but, rather, in designating food as God's share, actually is consecrating it as a holy offering. He therefore must formulate the intention to impose upon that which he separates a status of sanctification (i.C.l: 1). The importance of intention also is stressed in the Ushan notion that, in general, an individual is culpable only for what he does intentionally (i.C.2:3). This same idea will arise many times in the continuation of this tractate.

A BifOre 70 1:4 They may not separate olives The issue is the homogeneity of as heave-offering for oil or grapes different forms of produce for puras heave-offering for wine. If they poses of separating heave-offering. do so, the House of Shammai say: Attribution of this issue to the Houses It is valid for the olives themselves. appears pseudepigraphic in light of The House of Hillel say: It is not the broad U shan interest in this same question, i.C.2:4-6. See also valid at all. T. 4:lb-4. At T. 3:14, 16 and 25, Ushans cite other Houses' disputes which parallel their own deliberations on this issue.

B. 7he Time qf Yavneh l :5 They do not separate heave- Only produce upon which God has offering from produce that is not a claim can yield a holy offering, subject to that offering. They may which, by definition, is produce owed not use exempt produce as a source to God. Further, the separation of

7 This rule, which corresponds to the Yavnean legal perspective, indeed seems to have been known in Yavnean times. See iv.B.6:6.

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of the heave-offering required of produce that is subject. To separate heave-offering from two different batches at once, all of the produce must have the same status.

C. 7he Time

195

heave-offering is efficacious only for the single batch from which produce is taken. In the case of two batches, all of produce must be the same, such that it can be deemed a single entity. While stated anonymously, this rule stands behind materials found both at Y avneh (see Aqiba, i.C.3:3-4) and at Usha (i.C.2:4, 3:3-4 and ii.C.4: 1-2). I assume it derives from Y avneh, the earliest period to which it is attested.

rif Usha

1:1 Deaf-mutes, imbeciles, minors and those who do not own the produce may not separate heave-offering. If they do, the separation is not valid.

The rule makes two points: 1) The validity of a separation of heaveoffering depends upon the ability of the individual who performs it to understand the character of that separation. This idea is Ushan, as the discussion of it by Judah and Yose, i.C.1 :3, indicates. 2) One may not consecrate that which he does not own. This idea is a commonplace in Y avnean times, as the attestation of it by Aqiba, Kilaim, iii.C.7:4-5, shows.

1:2 Definition of the term "deafmute," which appears at M. 1:1.

This continuation of the preceding entry is further attested to Usha by Judah, Isaac and Simeon b. Gamaliel, T. 1: 1.

1:3 Judah: A minor who has not produced two pubic hairs validly separates heave-offering (contrary to M. 1:1). Yose: We rule on the basis of whether or not he has reached the age of vows.

Ushans carry forward the discussion of one of i.C.1: 1's items, with whichJudah here disagrees. Yose is consistent with the theory ofM. 1:1. Once the youth has reached the age of vows, he is subject to religious

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obligations he takes upon himself. At the same age, Yose says, he will understand the character of the separation of heave-offering and therefore validly may carry out that rite. 2:1 One may not separate clean A separation of heave-offering norproduce as heave-offering for un- mally should physically affect the clean, unless both are part of a produce for which the offering is single batch. Eliezer: They may taken. This is possible only if all separate clean produce as heave- of the produce comprises a single offering for unclean. batch. So the anonymous rule. Eliezer ignores this restriction in the present case, for here the householder intentionally separates heaveoffering from clean produce, so as to give the priest a share that he can in fact eat. Eliezer's theory regarding intention occurs again at i.C.2:2, 3, 4, 5 and 6. 8 2:2 They may not separate unclean produce as heave-offering for clean. If one purposely did so, the separation is invalid. But if he did so accidentally, it is valid. Judah: If he knew that the produce was unclean, but then forgot, it IS as though he acted purposely.

The point is the same as in the preceding. If the individual purposely takes unclean produce, which the priest cannot eat, he obviously does not have proper intention to separate the priest's share. If he does not know that what he separates is unclean, then the separation is valid, since the individual did carry it out with the intention to give the priest his portion. Judah agrees with the theory, but refuses to take into account forgetfulness.

8 This must be an Ushan Eliezer, for, while agreeing with the theory of those materials, he has the opposite view of the Yavnean Eliezer b. Hyrcanus, cited at iv.B.S: 1-3, who refuses to judge matters on the basis of the intentions of the individuals involved. There is no evidence that the question of separating heave-offering from clean and unclean produce arose before U shan times.

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2:3 One who intentionally trans- Again the individual is held culpagresses various rules of the Sabbath ble only for what he intentionally may not benefit from his actions. does. Sharing the theory of M. 2:2, If he did so unintentionally, he may these rules are assigned to the Ushan benefit. stratum. 2:4 They may not separate heave- In separating heave-offering, the offering from produce of one species taxonomic categories established by for produce of a different species. God at the time of creation must One may separate heave-offering be preserved. The basic rule appears from one kind within a species for to have been known in Yavnean a different kind within that same times, iv.B.6:6. Judah, applying the species. Judah: In doing this he al- consideration of the individual's attiways should separate heave-offering tude towards the produce, attests from the choicest produce. this construction to U sha. 2:5 The rule of M. 2:4 is applied to the specific case of a large and a small onion in the status of heaveoffering. Judah: They designate as heave-offering the onion of the best quality.

Nothing has changed from M. 2:4.

2:6 Specific examples of Judah's Judah's participation again indicates view of M. 2:4-5. + General prin- the Ushan origins of this pericope. cipal detailing that opinion. Judah disputes an anonymous rule concerning whether or not two types of grain are distinct species. 3:3-4 Partners who separated Sages reflect i.B.l :5, which states heave-offering one after the other that heave-offering may be separated from the same produce-Sages: only from produce from which that Only that separated by the first is offering never before has been taken. valid. Aqiba: That separated by Aqiba seems to agree, but suggests both is valid. Y ose: If the first sep- that, since each individual has a arated sufficient heave-offering, that share in the produce, each validly which the second separates is not separates heave-offering from his own valid. Anonymous rule: Aqiba's share. y ose and the final anonymous view applies only if they made an statement provide the typical Ushan

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arrangement that both would separate heave-offering.

perspective. Both separations are valid only if we have good reason to assume that the partners intended to have the offering separated twice.

D. Unassigned 1:6 Mutes, drunkards, naked peo- These individuals are not permitted ple, blind people and those who to recite the blessing that accomhave had a nocturnal emission may panies the separation of heavenot separate heave-offering. Since offering. Therefore they should not they have proper intention, if they separate the offering. Since they have do separate heave-offering, their proper intention, however, their separation is valid. separation is valid post facto. Making the same point as i.C.1: 1, 2:1 and 2:2, this rule must be Ushan. 1:7 Heave-offering may not be separated by a measure of volume, weight or number of pieces of produce.

Produce to be sanctified as heaveoffering is chosen randomly. This idea is Ushan, as Judah's parallel statement, ii.A.4:3, indicates. The present rule contradicts the Houses' theory, ii.A.4:3, that a set amount is to be taken as heave-offering.

1:8 They may not separate olives The issue of the separation of heaveor grapes the processing of which offering from different sorts of the is not completed as heave-offering same type of produce is familiar on behalf of olives or grapes the primarily from Usha, i.C.2:4, 5, 6. processing of which is completed. The present rule assumes Judah's If they do so anyway, the separation statement, i.C.2:4, 5, that the priest is valid, but heave-offering must be must receive the choicest produce. separated a second time, to assure It therefore appears to derive from that the priest receives his proper Ushan times. share of fully processed produce. 1:9 They may separate heaveoffering from grapes or olives that are completely processed in one

This develops the preceding entry and is attested to Usha by Simeon b. Gamaliel, T. 3:15.

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manner on behalf of grapes or olives that are completely processed in some different manner. 1: 10 They may not separate heaveoffering from fully processed produce on behalf of produce the processing of which is not complete or vice versa. Nor may they separate heave-offering from that which is not fully processed.

This is the general principle which stands behind the preceding items. This statement derives from Usha or later, along with consideration of the specific rules just discussed.

3: 1 If a chate-melon separated as The unit takes up and develops the heave-offering is found to be bit- theory familiar from i.B.l :5, that ter, heave-offering must be sepa- to be separated as heave-offering, rated a second time. In the case the produce must be useful as food. of wine-if it went sour before the The problem is what we do if we original separation, it is not valid do not know whether or not, at heave-offering. If it turned sour the time of the separation, the proafter it was separated as heave- duce was edible. This development offering, the separation is valid, and of M. 1:5 is probably Ushan, to heave-offering need not be sepa- which stratum it is attested by y ose rated a second time. If it is in and Ishmael b. Yose, who speaks doubt-the separation is valid, but in Yose's name T. 4:5, 6. heave-offering must be separated a second time. 3:2 Of the two quantities sepa- This too depends upon i.B.l :5's rated as heave-offering at M. 3:1, notion that heave-offering may not only one is true heave-offering, but be separated from produce that is it is not known which. How do we not subject to that offering. Along deal with this uncertainty in a case with the preceding item, which it in which some or all of this doubt- develops, this pericope presumably ful heave-offering is mixed with belongs in the Ushan stratum. It assumes that the Israelite's own perunconsecrated produce? ceptions determine which of the two quantities of produce is the true heave-offering.

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ii. The Rite qf Separating Heave-Qffering The unit indicates how much heave-offering an individual must separate from his produce and details the specific procedure through which the separation is carried out. The Houses initiate discussion of the former topic, providing specific percentages of a batch to be separated by individuals who are miserly, average or generous. The particular claim of the Houses, that specific types of people separate different quantities of heave-offering, is largely ignored by later authorities. But both Yavneans and Ushans do carry forward this topic in general. Yavneans dispute the largest percentage of a batch that may be designated as heave-offering. Ushans bring the central ideas of unit I to bear upon the question of what happens if an individual separates less than the required amount. In line with i.B.l :5, they rule that additional produce may not be separated from the partially exempt batch as heaveoffering on behalf of a different batch. Ushans further make clear that, unlike what the view of the Houses implies, a fixed quantity of produce is not to be measured out as heave-offering. The actual separation is performed in a random manner (see Judah, ii.A.4:3 and the anonymous rule of i.D.l:7). U shans discuss how the individual indicates that he has formulated the intention required validly to separate heave-offering (see i.C.l: 1). This is done through an oral declaration (ii.C.3:5, ii.D.3:8), in which the person announces what he intends to do. Other central questions remain moot in the Ushan period, in particular, the question of the right of Samaritans and gentiles to separate heave-offering. A. Bifore 70 4:3 The Houses of Hillel and Shammai dispute the correct quantity of produce to be separated as heave-offering by individuals of various dispositions, generous, average, miserly. Judah, an Ushan, glosses on how to handle situations in which the individual mis-estimates and separates the wrong amount.

This is one of the most basic issues regarding the separation of heaveoffering and might well go back to the historical Houses. The percentages given here are deemed normative by Yavneans (Eliezer, Tarfon, Ishmael, Aqiba) at ii.B.4:5, Ushans (Judah here, Simeon b. Gamaliel at T. 5:6a and Yose and Ishmael b. Yose at T. 5:8a) and after Usha (Rabbi at T. 5:6a). Judah's opinion actually is separate. It assumes

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that heave-offering is not separated in an exact amount, contrary to what the Houses say. See the apparently U shan i.D .1:7.

B. The Time qf Yavneh 4:5 Eliezer, Ishmael, Tarfon and Aqiba dispute how much of a batch of produce has the potential of taking on the status of heave-offering.

This carnes forward the discussion, begun before 70, of how much heave-offering is contained in a batch of produce. The Yavnean authorities all assume that the formal act of distinguishing heave-offering from the rest of the produce prevents the whole batch from becoming a priestly gift. See Peah, i.C.l :3C-E.

C. The Time qf Usha 3:5 The exact wording of the oral An oral designation proves that the designation of heave-offering and individual has the proper intention heave-offering of the tithe is under required for a valid separation of dispute by Simeon, Eliezer b. Jacob heave-offering (i.C.l: 1). Such a desand Eleazar Hisma. ignation is first known here in the Ushan period, where its specific character still is under dispute. The issue is carried forward by Simeon b. Gamaliel and Rabbi, T. 4:9. 3:9 Gentiles and Samaritans may designate heave-offering, tithes and may dedicate produce to the Temple.Judah and sages dispute whether

The question of the status of the gentile as regards the agricultural laws still is under dispute at Usha. 9 (i.C.1: 1 states simply that a gentile

9 Simeon's position, that what is separated by a gentile is not valid heave-offering, takes into account the fact that gentiles did not receive portions of the land of Israel as part of God's gift of land to the Israelites. The gentiles therefore are not themselves indebted to God for allowing use of the land and, accordingly, cannot validly designate agricultural gifts which, in the first place, are payment for the use of the land granted by God. The issue does not arise for Samaritans, who are understood in certain respects to share in the people of Israel's covenant with God.

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or not their fields are subject to the restrictions of the fourth year (Lev. 19:24). Simeon and sages dispute whether or not produce separated by a gentile indeed is true heave-offering.

may not act as the agent of an Israelite to separate heave-offering for him.) In T., Judah, Simeon b. Gamaliel, Rabbi and Simeon b. Eleazar discuss this further.

4: 1-2 If one separates some of the heave-offering required from a batch of produce, he may not later separate produce from that same batch to be heave-offering on behalf of a different batch. Meir: He may.

The underlying supposition is Yavnean, that heave-offering only may be separated from produce that is subject to that offering. Sages here hold that once some of the heaveoffering is separated, the batch as a whole is partially exempt from the further separation of that offering. Partially exempt produce may not later be separated as heaveoffering for fully liable produce. According to Meir, the partial separation leaves some of the produce fully exempt and the rest fully liable. The fully liable produce still may be designated heave-offering for a different batch. Meir's view evidences the typically Ushan assumption that, in his later separation, the Israelite will determine that the produce he separates is in fact that which still is subject to the priestly gift.

D. Unassigned

3:6-7 The correct order for the separation of agricultural gifts is first fruits, heave-offering, first tithe, second tithe. + Scriptural proof text.

This anonymous rule is a singleton, independent of all other legal statements and ideas in the tractate. It is impossible to place it in the chronological unfolding of M. Terumot's law.

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3:8 One who, in making an oral designation, says heave-offering instead of first tithe, or burnt offering instead of peace offering, etc., has said nothing.

To be valid, one's intention must be correctly expressed. This rule concerning the validity of oral designations can come no earlier than Ushan times, where the oral designation of heave-offering is first discussed (ii.C.3:5).

4:4 An agent separates the quantity of heave-offering normally separated by the produce's owner. If he does not know that amount, he separates the average quantity, onefiftieth.

The law assumes the position of the House of Hillel (ii.A.4:3) and the Ushan rule that an agent may separate heave-offering on behalf of a householder, i.C.l: 1.

4:6 Heave-offering is separated at three set times during the year, through an estimation of the required quantity of the offering, based upon a calculation of the amount of produce from which the offering is due.

This reads together the idea that a specific quantity of heave-offering is to be separated (ii.A.4:3) and the notion that the actual separation is done in a random manner (i.D.l:7). Like the latter idea, this presumably is Ushan.

iii. Neutralization When a small quantity of heave-offering is mixed with a large amount of unconsecrated food, the heave-offering loses its status of consecration. Then it may be treated as unconsecrated produce and may be consumed by the non-priest along with the rest of the food with which it is mixed. The non-priest simply removes from the mixture a quantity of produce equal to the heave-offering that was lost. This goes to the priest as his share. This theory of neutralization develops in Yavnean times, in which period the exact characteristics of the process of neutralization are under dispute. Y avneans dispute the ratio of heaveoffering to unconsecrated food in which the priestly gift is neutralized (iii.B.4:7). They further argue the circumstances under which heaveoffering is neutralized and, in particular, dispute whether neutralization occurs in a case in which the priestly gift could be recovered from the produce with which it is mixed (iii.B.4:8-ll, 5:5-6).

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The questions under dispute at Yavneh are largely resolved at Usha. Ushans are clear that heave-offering is neutralized only if it actually is lost within a batch of unconsecrated produce, such that it is not clear whether any single piece of produce is heave-offering or unconsecrated (iii.C.4: 12, 13). Neutralization thus is not a mechanical process but rather a function of the householder's own recognition that heaveoffering has been lost. Ushans further assert that, once heave-offering is neutralized and a replacement offering is separated from the mixture, that mixture is in all respects comparable to unconsecrated produce (iii.C.5:7). More heave-offering that falls into it is neutralized, just as was the first heave-offering. An anonymous rule, which states that a householder's intentional actions designed to cause heave-offering to be neutralized are void (iii.D.5:9), appears to be Ushan, for it reflects the theory of iii. C. 4: 12-13.

A Bifore 70 5:4 A seah of unclean heave-offermg falls into a hundred seahs of clean heave-offering. The House of Shammai declare it permitted. They are willing to ignore the small quantity of unclean produce it contains. + Debate that rephrases this dispute in terms of neutralization. Eliezer and sages argue the same issue, as phrased in the debate.

The issue, whether or not we may ignore a small quantity of unclean heave-offering that has been mixed with a large quantity of clean heaveoffering, is parallel to that of neutralization. The Houses however do not dispute the issue in terms of neutralization, such that they do not appear to have an awareness of that concept. Their use of the language permitted forbidden, instead of neutralized/not neutralized is clear on this. It appears that Yavneans or U shans have made use of the earlier Houses' material and have themselves created the Houses' debate. The appearance here of Eliezer makes the attributions m the debate extremely suspect.

B. The Time if Yavneh 4:7 Heave-offering is neutralized in a total of one hundred and one

This discussion of the exact ratio of heave-offering to unconsecrated

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parts of produce, so Eliezer. Joshua: Slightly more than that. Y ose b. Meshullam: One sixth more.

produce in which the heave-offering is neutralized is carried forward at Usha, by Simeon (T. 5:10), as well as after Usha, by Simeon b. Judah (T. 5:10). Ushan attestations give us solid grounds for the placement of this initial discussion at Y avneh. Throughout Yavnean and Ushan times, the figure given here by Eliezer is normative.

4:8-9 Joshua: Black figs serve to neutralize white ones and vice versa. Large figs neutralize small ones and vice versa. Round ones neutralize square ones and vice versa. Eliezer: They do not. Aqiba: It depends upon whether or not the householder knows which produce is the heave-offering.

Unlike Ushans, Yavneans disagree concerning whether or not heaveoffering is neutralized if the householder can identifY it and remove it from the unconsecrated produce. Aqiba introduces the consideration that is central in the later period.

4: 10 If one stuffed a litra of heaveoffering figs in the mouth of a stone jar containing unconsecrated figsEliezer: These figs are all deemed mixed together such that the heaveoffering may be neutralized. Joshua: They are not mixed together.

The issue is the same as at M. 4:8-9, although the positions of Eliezer andJoshua are reversed. Eliezer now holds that even though the heaveoffering is discernable, it is neutralized; Joshua takes the opposite view. Since the theoretical problem is the same as in the previous Yavnean materials, we must assign the issue to the Y avnean stratum. The positions of the authorities involved apparently have become garbled.

4: 11 If one skimmed the seah out The problem and positions are the of the mouth of the store jar, and same as at M. 4: 10, such that again in the portion skimmed off there we are on firm grounds in assigning is one hundred seahs of produce- this to Y avneh. Simeon b. Y ohai Eliezer: The heave-offering is neu- attests this material at U sha, T. 5: 12.

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tralized.Joshua: It is not neutralized, for it could have been recovered. 5:2 A seah ofuncleanheave-offering that fell into more than a hundred seahs of clean unconsecrated produce-let a seah be lifted up and burned, as though it were certainly unclean; so Eliezer. Sages: Let the seah that is removed be eaten in small bits, so that it does not impart uncleanness to the priest who consumes it.

As in the preceding Y avnean pericopae, the issue is the character of the process of neutralization. The priest must be given produce to replace the seah of heave-offering that was neutralized. Eliezer holds that the replacement seah is the same produce that originally was mixed in the unconsecrated produce.10 It is unclean. Sages hold that in the process of neutralization, the heave-offering is diffused throughout the unconsecrated produce. The replacement offering therefore contains both clean and unclean produce.

5:3 A seah of clean heave-offering that fell into a hundred seahs of unclean unconsecrated produce should be lifted up and eaten in small bits.

This is the view of sages, M. 5:2, that heave-offering is fully mixed with the unconsecrated produce in which it is neutralized. The case presumably is Y avnean, like the larger ideational structure of which it is a part.

5:5 A seah of heave-offering is neutralized in unconsecrated produce. The replacement offering falls into other unconsecrated produce. Eliezer: It imparts the status of heaveoffering as would true heave-offering. Sages: The replacement offering contains only a proportion of true heave-offering.

Eliezer is consistent with his view at M. 5:2. What fell into the unconsecrated produce is that which later is taken out of it. Sages too maintain their previous view, that when heave-offering is neutralized it is diffused evenly throughout the batch.

10 In light of the involvement in the preceding entries of the Yavnean Eliezer b. Hyrcanus, I assume that we deal here too with that authority.

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5:6 Heave-offering falls into less than a hundred seahs of unconsecrated produce and imparts its status to the batch. Some of the mixture falls out and is mixed with other unconsecrated produce-Eliezer: What falls out is treated as true heave-offering. Sages: That which falls out of the mixture contains only a proportion of true heave-offering.

C. The Time

207

The issue and positions are the same as in the preceding unit.

if Usha

4: 12 If two bins together contain Each of the hundred seahs has been one hundred seahs of unconsecrated rendered suspect regarding whether produce, and heave-offering falls into or not it contains the heave-offering. one of them, but it is not known The ruling, that the heave-offering into which, that heave-offering is is neutralized, develops the princineutralized. Simeon: This applies ple agreed upon by Eliezer and even if the bins are in different Joshua at Yavneh (iii.B.4:8-ll ). So cities. long as the heave-offering cannot be recovered from the unconsecrated produce, it is neutralized. This adds the common Ushan perspective, which has no regard for the physical boundaries of a batch of produce. 4: 13 A case came before Aqiba concerning fifty bundles of unconsecrated vegetables and one bundle half of unconsecrated and half of heave-offering-vegetables. y ose rules that the heave-offering is neutralized.

The Ushan point is the same as at M. 4:12. The status of all of the produce is in doubt, such that, even though it is divided into separate bundles, it joins together to neutralize the heave-offering. For the reasons given at M. 4: 12, this pericope too is firmly assigned to U sha.

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out and more heave-offering fell into the same unconsecrated produce-the unconsecrated produce remains permitted to a non-priest.

hundred seahs of produce are deemed fully unconsecrated This develops the basic Yavnean ideas presented at iii.B.5:2, 3, 5 and 6. See the following entry.

5:8 A seah of heave-offering fell into a hundred of unconsecrated produce and was not lifted out before more heave-offering fell into the same batch-that batch now has the status of heave-offering. Simeon: The second seah is neutralized just as was the first one.

Eliezer and sages, iii.B.5:5-6, would agree with the anonymous rule. Since the mixture contains two seahs of heave-offering and only one hundred seahs of unconsecrated produce, the heave-offering imposes its own status upon the batch. That is, even though the heave-offering is neutralized, it retains the essential qualities of a priestly gift. In his disagreement, Simeon presents the more developed Ushan theory of neutralization found as well at M. 5:7. Once heave-offering is neutralized, it is in all respects like unconsecrated produce. This notion is further developed after U shan times, by Simeon's son, Eliezer, T. 6:5, who brings into the play the role of human intention.

D. Unassigned 5:1 A seah of unclean heave-offering Normally a mixture of heave-offerof that fell into less than a hundred ing and less than one hundred times seahs of unconsecrated produce- its quantity in unconsecrated prolet all the produce rot. If the heave- duce should be eaten by a priest. offering was clean--sell the mixture If some of the produce in the mixto a priest. If the unconsecrated ture is unclean we follow the status produce was unclean, the priest of the heave-offering. If it was clean, eats the mixture in small bits, which then whether the unconsecrated do not convey uncleanness. produce was clean or unclean, the mixture must be consumed by the priest. The issue and its adjudication

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are substantively the same as what is found in the dispute between Eliezer andJoshua at Yavneh, iii.B.5:2. 5:9 A mixture of heave-offering and unconsecrated produce that is ground up and the quantity of which increases or diminishes-the proportion of heave-offering to unconsecrated food remains the same. This is the case unless it is known for certain that the proportion changed. Actions taken by the householder with the express purpose of causing heave-offering to be neutralized are void. IV.

This material concerns a secondary level of investigation, dependent upon and carrying forward the inquiry of Yavneh into the conditions under which heave-offering is neutralized. Reference to the role of human intention, an issue settled only in Ushan times, is sound grounds for placing this anonymous pericope in the Ushan stratum.

Heave-Qifering Eaten by a Non priest

A non-priest who unintentionally eats a holy thing must replace that holy thing and pay, as a fine, an additional fifth of its value (Lev. 22:14). Eliezer and Joshua dispute whether or not an individual who believes that he has the right to eat heave-offering is culpable when, after the fact, it turns out that he did not have that right (iv.B.8: l-3). Eliezer takes into account only the objective facts. The individual should not have eaten the heave-offering and therefore must pay the principal and added fifth. Joshua, by contrast, holds that self-perception matters. Since the individual truly believed that he was permitted to eat heave-offering, he may not be held culpable. Y avnean authorities thus dispute the idea, so common in Usha, that the intention with which an individual performs a deed determines the significance of that action. Both Y avneans and U shans discuss the regulations that pertain to the payment of the principal and added fifth. The issue is whether or not this payment is subject to the same restrictions that apply to the individual's initial separation of heave-offering. The issue is moot at Yavneh, iv.B.6:6, where Eliezer and Aqiba argue whether the individual may pay restitution with a type of produce different from that which was eaten, and at iv.C.6:5, where Meir and sages dispute whether produce already in the status of an agricultural offering may be used as restitution.

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U shans resolve the Yavnean question of whether or not self-perception determines culpability (iv.C.7:5-7). They ask how to adjudicate a case in which it is not certain whether a non-priest ate heave-offering. They state that so long as the individual may assume that he actually ate common produce, he is not culpable. In determining guilt, self-understanding thus counts. This is the expected Ushan resolution of the Yavnean dispute between Eliezer and Joshua. An anonymous rule that appears to derive from Ushan times defines as culpable any unintentional act of eating, drinking or anointing with heave-offering (iv.D.6:1). Inclusion of the prohibition against anointing prevents the non-priest from deriving any benefit from the priestly offering. A. Bifore 70 B. 7he Time qf Yavneh 6:6 Eliezer: They pay restitution with produce of one kind even for produce of a different kind. Aqiba: They pay restitution from produce of one kind only for produce of its same kind.

The issue is whether the rules that apply to the householder's original separation of heave-offering apply as well to the payment of the principal and added fifth. The issue is carried forward at Usha, iv.C.6:5.

8:1-3 The wife of a priest was eating heave-offering and was told, "Your husband has died," such that she no longer had the right to eat the priestly ration-Eliezer: She is culpable. Joshua: She is not culpable (+ five substantively parallel cases.)

Eliezer holds that the wife's belief that she had the right to eat heaveoffering is irrelevant. Objectively she did not have that right. Joshua holds that self-perception counts. The woman acted rationally, under the assumption that she could eat heave-offering. Even when it turns out that this was not permitted, she is not held to have transgressed. While the specific issue here is not taken up at Usha, a comparable question of the role of individual's self-perception is resolved at iv.C. 7: 5-7.

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C. The Time qf Usha 6:3 One who gave his workers The issue is whether the principal, heave-offering to eat-he pays the like the added fifth, is paid only principal and they pay the added by those who eat heave-offering, fifth: so Meir. Sages: The workers or whether it also is paid by people, pay both the principal and the such as the employer, who in other added fifth, and he gives them the ways benefit from heave-offering, value of their meal. e.g. by using it in place of their own food. See iv.D.6:l. 6:5 They do not pay the principal and added fifth out of produce in the status of an agricultural offering; so Meir. Sages: They do.

The question is whether the restrictions that apply to the householder's original designation of heave-offering apply as well to payment of the added fifth.

7:2 The daughter of a priest marries an Israelite and then unintentionally eats heave-offering-Meir: She pays the principal but not the added fifth; if the husband was ineligible for marriage to priestly stock, she pays both the principal and the added fifth. Sages: In both cases she pays the principal but not the added fifth.

The issue is whether the woman is treated like a person of priestly lineage or as an Israelite. Meir says that this depends upon whether or not, upon divorce or widowhood, she may return to her priestly father's house. Sages say that in all cases she is treated as having priestly status. Since she ate heave-offering that did not belong to her, she must return the heave-offering to its rightful owner (= the principal), but she pays no fine (= the added fifth). The larger issue, that of the character of the priestly caste, has no antecedents in this tractate. Placement in this stratum is on the basis of the attribution to Meir.

7:5-7 Two bins, one filled with heave-offering and one filled with unconsecrated produce-if heaveoffering fell into one of them but

So long as we are not certain of the contrary, we assume that heaveoffering was not misused by any particular non-priest. We maintain

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It IS not known which, we hold the assumption of innocence for all that It fell into the heave-offering. parties even if it is an indisputable If it is not known which is filled fact that one of them did indeed with heave-offering-the one which misappropriate the priestly gift. someone should eat or otherwise What counts is each individual's misuse is deemed unconsecrated perception not to have tampered and the other thereafter is treated with consecrated produce. Meir as heave-offering. But someone who holds that we still must take serieats from the other bin is still not ously a condition of doubt. Dough culpable. Meir: The second bin is offering is to be separated from any subject to dough offering. Yose dough that might be unconsecrated. exempts. This entry develops along typically Ushan lines the basic rules for neutralization and payment of restitution already in place in the period of Yavneh. D. Unassigned

6:1 A non-priest who unintentionally eats, drinks or anoints with clean or unclean heave-offering pays the priest the principal and added fifth. He pays it with unconsecrated produce, which takes on the status of heave-offering.

This concept is developed from Lev. 22:14, which simply states that a non-priest who eats a holy thing pays back the principal plus an added fifth. This clarifies iv.C.6:3 and 6:5, such that it can come no earlier than U shan times. See also the contributions of y ose and Simeon, T. 5:8b, Simeon, T. 7:1, Abba Saul, T. 7:2, and Simchos, T. 7:7.

6:2 The daughter of an Israel- Once married to a priest, the Israelite who unintentionally ate heave- ite woman has the right to eat offering and afterwards married a heave-offering. If she does not owe priest-if the heave-offering she ate the principal to someone in pardid not belong to any particular ticular, she therefore may keep it priest, she pays to herself the prin- for herself, to be eaten as heavecipal and added fifth. If the heave- offering. In any case, she may keep offering she ate belonged to a priest, the added fifth, for this is a fine that priest must receive the prin- that has no set recipient. Developing

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cipal, but she may keep the added fifth.

the line of questioning begun at iv.C.7:2, this pencope appears to be Ushan.

6:4 One who steals heave-offering pays twice its monetary equivalent (= Ex. 22:7). If he unintentionally ate it, he pays two principals and one added fifth. If it was heaveoffering that had been dedicated to the Temple, he pays two added fifths and one principal.

The rules for theft and for restitution paid for produce dedicated to the Temple are brought to bear upon a single case. I see no way of placing this Scriptural exegesis in the unfolding of the law.

7:1 A non-priest who intentionally eats heave-offering pays back the principal but does not pay the added fifth. That which is paid as restitution does not take on the status of heave-offering. The priest therefore may refuse to accept it.

An individual who intentionally eats heave-offering is subject to execution. He therefore is not required to pay the fine of the added fifth. This phrasing is parallel to iv.D.6:1, such that this particular rule appears to be U shan. Since the rule is not referred to elsewhere in the tractate, however, there is no way to verify this assignment.

7:3 One who feeds heave-offering to a person who is not culpable for his actions (a minor or slave), one who eats heave-offering separated from produce grown outside of the land of Israel, or one who eats only a little heave-offering pays the principal but not the added fifth.

Culpability is not incurred since 1) the individual is not responsible for his actions, 2) the heave-offering is not a true priestly ration, or 3) the amount eaten is insignificant. Therefore, while the priest's share must be returned through payment of the principal, no fine is paid. In removing culpability because of extenuating circumstances, this rule is in line with the U shan materials in this unit.

7:4 Statement of general principle that repeats and correlates iv.D.6: I and 7:1.

The rule depends upon M. 6: 1 and 7: 1, to which it adds nothing.

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v. 7he Guttie Contamination qf Heave-Offering

Yavneans explore the householder's responsibility to care for heaveoffering that might have been rendered unclean and that therefore may not be eaten by a priest (v.B.8:8-ll ). Eliezer holds that the individual still must protect the heave-offering in cleanness. It may, after all, actually be clean. Joshua, by contrast, states that since the doubtfully clean heave-offering in no event will be eaten by a priest, the householder himself may render it certainly unclean. Gamaliel takes a middle position, that the householder may do nothing. This Yavnean dispute gives way, in the Ushan period, to the theory that, in cases of doubt, Israelites themselves determine the status of produce, for instance, by deeming the doubtful produce actually to be clean. Ushans also address a quite separate issue, placed here because of its slight topical relevance to cases of cultic contamination of heaveoffering. They state that if produce, including heave-offering, appears to have been nibbled upon or sipped at by a snake, it must be destroyed, lest it contain snake venom (v.C.8:4, 5, 7, v.D.8:6).

A. Bifore 70

B. 7he Time qf Yavneh 8:8 A jug of wine in the status of heave-offering concerning which there arose a suspicion of uncleanness-Eliezer: One must still protect it in cleanness. Joshua: He should render it certainly unclean. Gamaliel: He should leave it alone.

While the suspect heave-offering may not be eaten, lest it be unclean, Eliezer holds that the individual retains the responsibility to take proper care of it. Joshua is attentive to the mitigating circumstances. Since the priest may not eat this heave-offering anyway, the householder may render it certainly unclean, so that it may be destroyed. The same perspectives of Eliezer and Joshua appeared at iv.B.8: 1-3 and are elaborated again at v.B.8:9, 10 and 11. We thus have firm grounds in assigning this to the Y avnean period.

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8:9 A jug of wine in the status of heave-offering that broke in the upper vat and the lower vat is unclean-Eliezer and Joshua agree that if he can save the heave-offering in cleanness, he should do so. If not, Eliezer says that he may not render the heave-offering unclean with his own hands.

Eliezer's position is the same as at M. 8:8.

8:10 Same position as at M. 8:9, for a case in which oil in the status of heave-offering is spilled and is about to be soaked up into the ground.

This is the same as M. 8:9.

8:11 In the cases given atM. 8:9- Joshua's view is the same as 10, Joshua says: The man himself assigned to him at M. 8:8. may render the heave-offering unclean, for it is about to be rendered unclean anyway.

IS

C. 7he Time qf Usha 8:4 Water, wine and milk that are left uncovered must be poured out, lest a snake drank from them and deposited venom.

The general rule for uncovered liquids, stated here anonymously, is assumed in the following discussions attributed to Ushans (see also the Ushan materials at T. 7:12-14). There is no evidence that this rule developed before the Ushan period.

8:5 If there is sufficient liquid to dilute venom, it is permitted. y ose: Uncovered liquid in a vessel never becomes permitted. In pools in the ground, more than forty seahs are permitted.

This U shan discussion develops M. 8:4.

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8:7 A wine strainer used as a lid does not prevent a snake from depositing venom in a jug. Nehemia: It does.

As at M. 8:5, placement is on the basis of attribution.

D. Unassigned 8:6 Produce or meat that might have been bitten by a snake may not be consumed, lest it contains snake venom.

The topic and point is close to that ofv.C.8:4, 5, 7. Mter Ushan times, Simeon b. Menasia further develops its concerns, T. 7:16.

8: 12 Women to whom gentiles This follows the view of Eliezer, said, "Give us one of your number M. 8:8-10. Judah and Simeon, that we may rape her, or we will T. 7:20, suggest a parallel case, in rape each of you," let them all be which they apply Joshua's perspective, that Israelites may save the raped. many at the cost of the few. It is unclear whether this example derives from Yavneh, with Eliezer, or Usha, when discussion of its larger Issue occurs. vi. Heave-Qffering Planted as Seed Y avneans state flatly that what grows from seed in the status of heaveoffering always has the status of a priestly gift (vi.B.9:2-4). They thus have regard for the objective fact that holy seed produced a crop and that the farmer who allowed that to happen has usurped the priest's exclusive right to heave-offering. As a result, the farmer loses all rights to the produce of his field. It may be eaten only by a priest. U shans, by contrast, take seriously the character of the specific seed that was planted, on the one hand, and the intentions of the farmer who planted it, on the other (vi.C.9:5-7). They hold that a crop has the status of the seed from which it grew only if that seed is an intrinsic part of the crop. If the seed disintegrates in the ground, Ushans hold that its status does not pass on to the crop. That crop is an autonomous entity and therefore is unconsecrated. Ushans further pay attention to the attitude of the farmer who planted the seed (vi.D.9: 1). He bears the financial burden of cultivating a field planted with heave-offering only

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if he intentionally sowed heave-offering-seed. But if he planted the seed unintentionally, e.g., not knowing that it was heave-offering, he may plow it up. While the farmer may not derive personal benefit from the priestly gift, he has not committed sacrilege and is not made to suffer the continued financial burden of cultivating a crop with the low market value of heave-offering. A. Bifore 70

B. 7he Time qf Yavneh 9:4 What grows from heave-offer- What grows from sanctified seed, ing has the status of heave-offering. such as that of heave-offering, is A second generation of crops from sanctified. This anonymous rule the original seed is however uncon- must be placed in Yavnean times, secrated. What grows from the seed for it stands behind the dispute that of produce subject to other restric- follows, between Tarfon and Aqiba, tions is not subject to those same M. 9:2. restrictions. 9:2 A field that is planted with seed Since what grows from heave-offerin the status of heave-offering is ing seed is consecrated, M. 9:4, subject to offerings left for the poor. Tarfon wishes to prevent a poor Tarfon: Only poor priests may glean Israelite from gleaning in the field, in such a field. Aqiba disagrees. lest he eat some of the holy produce. Aqiba trusts the poor person to sell what he gleans to a priest. 9:3 Continuation of M. 9:2. The crop grown from heave-offering is subject to tithes and poorman's tithe. One should thresh this produce by hand. If he uses cattle, the animals must wear a feed bag filled with produce of the same kind, so that they cannot eat the holy produce they are threshing.

The point is the same as at M. 9:2. Like all produce grown by an Israelite, that which grows from heaveoffering is subject to tithes. M. 9:2's dispute about who may claim these tithes would apply equally here. The rule concerning the threshing of produce is known in Ushan times, T. 8:3.

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if Usha

9:5 In the case of heave-offering planted as seed-if that seed is of a type that is not an integral part of the crop, the crop is not consecrated.

This principle is unknown to, and disagrees with, the law for heaveoffering planted as seed assigned to the Yavnean stratum, v.B.9:4. There is no evidence that the present ruling was known before Ushan times, to which it is attested by Judah, in the following, and by Simeon (alt.: Judah), T. 8:4.

9:6-7 A-J The rule of M. 9:5 applies in the case of produce subject to tithes that is planted as seed. Arum, garlic and onions are kinds of produce the seed of which does not disintegrate. Judah: In the case of garlic, the seed disintegrates. An Israelite may make a chance meal, without tithing, of a gentile's produce, even though it was grown from untithed seed.

The theory is the same as at M. 9:5 and is attested to Usha by Judah. Discussion continues after U shan times, with Simeon b. Eleazar, T. 8:7. The final rule, concerning a gentile's produce, presumably refers to a type of produce the seed of which disintegrates.

9:7K-N The first crop of a sapling grown from seed in the status of heave-offering has the status of a priesdy gift. The second is unconsecrated. Judah: The second as well has the status of heave-offering.

This develops the theory ofM. 9:56, applying it in a new sort of case. Discussion of this question cantinues after Ushan times with Nathan b. Joseph, T. 8:8.

D. Unassigned 9: 1 If a householder intentionally The crop grown from heave-offersows as seed produce in the status ing has the status of heave-offering, of heave-offering he may not plow such that the householder may not it up. Unintentionally, he may. himself eat it. If he intentionally Once it is a viable crop, either way, planted the seed, he is culpable for he may not plow it up. sacrilege. He must cultivate the crop and later sell it to a priest, at the

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low value of heave-offering. If he planted the seed unintentionally, he is not culpable. He rectifies his mistake by plowing up the heave-offering seed. This is permitted unless the crop already is edible. Then it is deemed heave-offering and may not be destroyed. This rule thus brings into play the usual Ushan concern for intention. Parallel to i.C.2:3 and 3, the present pericope belongs in the Ushan stratum.

vii. Heave-Qifering Cooked with Unconsecrated Produce The Yavnean theory, that forbidden produce does not impart its own, forbidden, status to permitted produce with which it is cooked (vii.B.lO:llE-H; vii.D.lO:lO), is rejected in the Ushan period. Ushans hold that whenever forbidden produce, including heave-offering, imparts its flavor to, or is inextricably mixed with, permitted produce, then the permitted produce too is rendered forbidden (vii.C.lO:l, 3, 8, llA-D; vii.D.l0:2, 4, 5-6, 7, 12). In either case the Israelite will perceive himself as benefiting from consecrated produce. Judah further develops the theory that the householder's perceptions determine the status of food. He holds that the forbidden produce imparts its own status to that which it flavors only if the householder desires that flavor to enter his food (vii.C.lO: 1, 3). A. Bifore 70

B. 1he Time qf r avneh 10:9 Zadoq testified that the brine This rule is found in M. Ter. beof unclean locusts does not impart cause of its relevance to an U shan pericope, vii.C.l 0:8. It receives no susceptibility to uncleanness. development at Usha and is not cognate to other Y avnean material. Placement is on the basis of attribution alone.

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10:11 E-H Aqiba says: All permitted food that is cooked with prohibited food remains permitted, except for what is cooked with forbidden meat. Yohanan b. Nuri: Forbidden liver renders forbidden that with which it is cooked.

This Y avnean rule states the opposite of the point made in this topic at Usha, that when prohibited food (heave-offering) is cooked with permitted food it does impart to that food its forbidden status. Since the specific notion of M.l 0: 11 E- H occurs only in this one pericope, placement in the Yavnean stratum is on the basis of attribution alone.

C. The Time if Usha 10: 1 That which is inextricably mixed with or flavored by heaveoffering takes on the status of heave-offering. Judah: An unconsecrated pickled fish cooked with an onion in the status of heaveoffering remains permitted, for the purpose of the onion is to absorb the stench, not to flavor the fish.

M. I 0: 1 gives the principle that stands behind the U shan and unassigned rules on this topic. A nonpriest may not eat what has been flavored or mixed with heave-offering, since, by doing so, he would derive benefit from the priestly ration. Judah develops the basic principle to take into account the purpose for which the heave-offering was cooked with the unconsecrated food.

10:3 If hot bread is placed on a jug of wine in the status of heaveoffering-Meir: It takes on the status of heave-offering. Judah: it remains unconsecrated. Yose: It depends on the type of bread.

Y ose and Meir agree that so long as the bread absorbs the wine vapor, it takes on the status of heave-offering. Judah appears to follow the same view he expressed at M. 10: 1. If the person wanted wine in the bread, he would have acted in a direct fashion, dipping the bread in the wine. Since he did not do that, we assume that he does not want the heave-offering-wine to flavor his bread, and therefore we deem the actual effects of the wine upon the bread to be null.

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10:8 Unclean fish pickled in clean brine--if there is sufficient unclean fish to impart flavor to the brine, the brine is rendered unclean. Judah and Y ose dispute the requisite quantity.

The theory is the same as at M. 10: 1, applied in a case concerning clean and unclean produce. This particular pericope is further developed after Ushan times by Simeon b. Menasia and Y ose b. Judah, T. 9:1.

10:11A-D Yose says: Unconsecrated produce boiled with beets in the status of heave-offering is rendered forbidden, since beets impart flavor. Simeon: Cabbage grown in an irrigated field imparts flavor to cabbage grown in a rain watered field.

The basic theory is that of M. 10: 1. Ushan authorities apply that principle to the case of specific types of produce.

D. Unassigned 10:2 Dough leavened by an apple in the status of heave-offering takes on the status of heave-offering. Water flavored by barley in the status of heave-offering remains permitted to a non-priest.

The dough, which has been improved by the heave-offering, takes on that heave-offering's consecrated status. The barley ruins the flavor of the water and therefore does not impart to it the status of heaveoffering. These rules derive from no earlier than U shan times, when the theory that governs them was developed, vii.C.1 0:1. Discussion is at u sha and later: y ose and Simeon, T. 8:9b-10 and Eleazar b. Simeon, T. 8:13.

10:4 Bread baked in an oven fired with cumin in the status of heaveoffering remains unconsecrated, for the burning cumin imparts its smell, but not its flavor.

The differentiation between "smell" and "flavor" is a development of the principle at vii.C.10:1.

10:5-6 In the case of fenugreek that is heave-offering or second tithe,

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the seed is deemed consecrated but the stalks are not. If the fenugreek is produce of the seventh year or of a vineyard in which were sown diverse kinds, or if it was dedicated to the Temple, the seed and stalk together are subject to the particular restrictions. (10:6) One need not separate tithes for the stalks of fenugreek. But if one does so, the designation is valid and the required quantity of both stalks and seed must go to the priest or Levite.

have the status of an agricultural offering. This is the case unless the householder intentionally designates them to be such, for in doing so he indicates his desire to use the stalks as a food. The stalks however automatically are subject to restrictions, such as those of diverse kinds, that apply to all that is growing in a field. The householder may in no way benefit from such produce. Since this unit depends upon vii.C.lO: l and develops it for an ambiguous case, it cannot derive from before Ushan times. The attention here to the role of the householder's intention is further evidence that this material belongs at Usha, as is the continued discussion of these issues, at Usha, by Meir and Judah, T. 8:9a. See Orlah, ii.C.3:6-8.

10:7 Unconsecrated olives that are pickled with olives in the status of heave-offering-if the consecrated olives are capable of flavoring the unconsecrated ones, the unconsecrated ones take on the status of heave-offering.

The principle is the same as at vii. C .1 0: 1, supporting placement of this rule in the Ushan stratum.

10:10 Unconsecrated produce that is pickled with heave-offering does not take on a consecrated status, unless it is pickled with leeks in the status of heave-offering.

This contradicts what is explicit at M. 10:7, that heave-offering generally flavors and therefore imparts its own status to that with which it is pickled. Perhaps this rule belongs in the Y avnean stratum. See Aqiba, vii.B.l 0: 11E-H.

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10:12 An egg spiced with forbidden spices is itself rendered forbidden, since even the yolk absorbs the flavor. Liquid in which heaveoffering is boiled or pickled is forbidden to non-priests.

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The theory is that of vii.C.1 0:1.

viii. 7he Processing and Consumption qf Heave-Qffering Yavneans provide the basic rule for this unit. Produce in the status of heave-offering must be processed in the manner usual for food of its type (vii.B.11 :2-3). In this way we assure that no part of the fruit that normally is eaten will go to waste. This would occur, for instance, if fruits usually eaten whole were squeezed for juice. Ushans apply this Yavnean principle in the case of specific types of produce (viii. C .11: 1, 10). In anonymous materials, the Yavnean theme is developed along typically Ushan lines. Refuse from produce in the status of heaveoffering is deemed unconsecrated as soon as the priest or Israelite deems it unworthy of use as food (viii.D.ll :4-8). Then it may be eaten even by a non-priest. So long as food is deemed worthy for consumption, however, it retains its status of consecration and may be eaten only by a priest. The clear point of these rules is that the attitude of the Israelite or priest determines whether or not produce retains the consecrated status of a priesdy gift. A. BifOre 70

B. 7he Time qf Yavneh 11:3 They may not make produce in the status of heave-offering into fruit juice or otherwise process it, unless it is olives or grapes. The forty stripes for consumption of orlah do not apply to liquids, except for wine and oil. First fruits may not be brought in the form of liquids, except for wine and oil. Fruit juices do not impart susceptibility to uncleanness, except for wine and

While stated anonymously, this pericope contains the principle of the Y avnean rule that follows. There is no evidence that it is known before Yavnean times. Produce in the status of heave-offering must be consumed in its normal fashion, as a food. Processing is not allowed, since this causes the loss of much of the produce, e.g., the pulp. This does not apply to grapes and olives,

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oil. Liquids other than wine and oil may not be offered at the altar.

which almost always are prepared as liquids.

11 :2 Fruit juices made from pro- Both parties agree that heave-offerduce in the status of heave-offer- ing should not be made into fruit ing-Eliezer obligates a non-priest juice (= M. 11:3). The dispute conwho drinks them to the principal cerns what happens if this anyway and added fifth. Joshua exempts. is done. Eliezer and Joshua's positions are familiar from units iv-v. Eliezer looks only at the objective facts. Joshua by contrast takes into account extenuating circumstances. The non-priest could not have known that the fruit juice was from heave-offering, and therefore he is not culpable.

C. 77ze Time qf Usha 11: 1 They may not put heaveoffering-figs in fish-brine, since this ruins the figs. They may, however, put wine in the status of heaveoffering in brine, for it will be eaten with the brine. They may not perfume oil in the status of heaveoffering, since then it will not be eaten. They may, however, honey wine in the status of heave-offering, for this is a drink. They may not boil wine that is heave-offering, for this diminishes its quantity. Judah: They may, for this improves its flavor.

On the basis of Judah's gloss, I assume that these several rules belong to the U shan stratum. They all develop the Y avnean principle, viii.B.ll :3, that heave-offering must be prepared in a way in which it can be eaten. The issue of the preparation of wine in the status of heave-offering is carried forward after Ushan times, by Eliezer b. Simeon, T. 9:6b.

11: 10 Unclean oil in the status of heave-offering may be kindled in lamps in places in which priests will benefit from the light. Judah: They may kindle such oil at a wed-

This is a development of the theory first proposed at Yavneh, viii.B.ll :3, that heave-offering must be used to benefit the priest. The point here is that, so long as the priest benefits,

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ding feast, but not in a house of mourning. Yose: They do so in a house of mourning but not at a wedding feast. Meir prohibits in either case. Simeon permits in both cases.

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it is irrelevant that non-priests enjoy the heave-offering as well. The fourparty Ushan dispute that concludes this pericope eludes interpretation, since no indication is given why the rule for a wedding feast should be different from that for a house of mourning. It is placed here on the basis of attributions.

D. Unassigned

11 :4 Refuse from produce in the status of heave-offering that has food value retains the consecrated status of a priestly gift and may not be eaten by a non-priest.

This rule depends upon and develops the Yavnean and Ushan principle that produce in the status of heave-offering should not be allowed to go to waste.

11 :5 Refuse from heave-offering or holy-things that the priest saves retains its consecrated status. If the priest throws the refuse out, it is deemed permitted for consumption by a non-priest. The priest is not required to consume produce in the status of heave-offering which, were it unconsecrated, he would not eat.

The attitude of the priest determines whether or not the refuse is deemed a food and retains the status of heave-offering. This concern for the attitude of an individual is typically Ushan and supports placement of this pericope in the Ushan stratum.

11 :6 When one empties a storage bin of wheat in the status of heaveoffering, he need not pick up every last kernel before placing unconsecrated wheat in that bin.

As at M. 11:5, the status of produce depends upon whether people normally consider it worthy as food. The few kernels at the bottom of the bin are deemed refuse and therefore need not be eaten by the priest. Like M. 11:5 this rule belongs in the Ushan stratum.

11:7 If oil in the status of heaveoffering spills, one may wipe it up

The point is the same as in the two preceding items.

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with a rag, just as he would do with unconsecrated oil. 11 :8 When one empties a jug of wine or oil in the status of heaveoffering, he need not entirely clean it of consecrated liquid but may forthwith place unconsecrated liquid in it. However, if after emptying the jar he should collect the heaveoffering-wine or oil that remains, that liquid retains its sanctified status.

The considerations of M. 11 :5-7 apply here as well. The unit emphasizes the role of human intention: If the householder collects and saves what otherwise would be deemed refuse, that which he saves is deemed a food and retains its consecrated status.

11:9 Cattle owned by a priest may be fed with vetches in the status of heave-offering. A priest may not feed such vetches to a cow he has hired from an Israelite, unless he owns a share in the cow.

Vetches are an ambiguous type of food. While they are edible by humans, usually they are given to cattle as feed. This rule is in line with the Y avnean principal that heaveoffering must be used to the benefit of the priest. It is attested to Usha by Simeon b. Gamaliel, T. 10:17.

III.

CoNCLUSION

The topics and organization of the tractate reveal the point that its framers wish to make through their discussion of heave-offering. These topics are, first, the role of the Israelite in the designation and separation of heave-offering; second, his responsibility to maintain the priestly gift in conditions of sanctity; and, third, the part he plays in the determination of the point at which heave-offering loses its status of consecration, such that it again may be consumed by non-priests. The tractate as a whole thus focuses upon common Israelites and their role in the processes of sanctification. While this concern was established by Yavneans, who set the agendum of issues discussed in the tractate as a whole, only in the Ushan period does the perspective distinctive to Mishnaic legislation emerge. Based upon the Yavnean minority opinion ofjoshua, Ushans rule that in all aspects of the processes of sanctification, the intentions and desires of common Israelites are central. At each point these determine the status of sanctification of produce that the Israelite

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sets aside as the priest's share. Through the Israelite's powers of intention, produce first comes to be holy. Later, the holiness of the priest's gift is maintained through the Israelite's desire not to commit sacrilege. Finally, the offering again is considered secular when the Israelite himself holds it no longer to be worthy of holiness. Through these claims the tractate as a whole comes to argue that common Israelites exercise powers of sanctification previously believed to be found solely in the hands of the priests. In the Division of Agriculture, common Israelites are described as a central locus of sanctification, bringing God's holiness into the world and assuring that it properly is maintained and, ultimately, disposed of.

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CHAPTER SEVEN

THE DEVELOPMENT OF THE TRACTATES: MAASEROT

1.

INTRODUCTION

Tractate Maaserot defines the class of produce that is subject to the separation of agricultural offerings and indicates when payment of those offerings must be made. It asks, that is to say, 1) when, in the course of a crop's growth and ripening, tithes may validly be separated from it and 2) when, in the subsequent harvesting and preparation of the produce, heave-offering and tithes must actually be paid? 1 The Mishnah's answer to these questions depends upon the understanding-derived in part from Scripture-that Israelites owe agricultural offerings to God in return for the use, granted them by God, of the land of Israel for the growing of crops. In light of this idea, the tractate points out that God is owed a share only once the produce actually has ripened and become useful as food. When the crop ripens, that is, God's role in its production is complete, such that he now may be paid the share he is owed. Even at this point, however, Israelites still may refrain from tithing. They may refrain until they physically appropriate the food for their own personal use, either to sell in the market or to prepare as a meal. In the tractate's view, God's absolute claim for a share of the crops of the land of Israel becomes due only at the point at which Israelites exercise their own final, personal claim to use the produce as their own. This notion, that the requirement to tithe is a reflex of the Israelites' desire for food, is found primarily in the tractate's Ushan stratum, which, indeed, comprises all but four of the rules before us. Specifically, Ushans rule that the obligation to tithe depends upon the individual's

1 See Jaffee, p. 1. In light of these questions, Tractate Maaserot serves as a prolegomenon to Tractates Peah, Terumot, Maaser Sheni and Bikkurim, which detail the processes through which the several offerings referred to here are physically separated and maintained. Except for the irrelevant fact of the ordering of the tractates, I find no basis for Albeck' s claim that Tractate Maaserot comprises a "continuation" of Tractate Terumot (,Zeraim, p. 217).

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intention regarding the produce. If an individual does not clearly intend food that he eats to constitute a meal, then no matter how much he actually consumes, he need not tithe. By contrast, any that the individual does take food for a meal, he must tithe, even if the food has not reached a state in its processing at which it normally is eaten. While Y avneans too know that food must be tithed before it is used in a meal, they take no account of unusual or extenuating circumstances. Y avneans instead state simply that produce must be tithed when the individual brings it home, since it is there that he normally eats his meals. This leads only to a minor ambiguity in the law, concerning whether or not courtyards are comparable to a person's home so as to render produce brought into them subject to tithes. The distinctive attitude that underlies the U shan approach to the law is familiar from the Ushan strata of the tractates already discussed. For the case of Tractate Maaserot, this attitude is described by Jaffee (pp. 4-5): What is striking in all of this is that the entire mechanism of restrictions and privileges, from the field to home or market, is set in motion solely by the intentions of the common farmer. Priests cannot claim their dues whenever they choose, and God himself plays no active role in establishing when the produce must be tithed. Indeed, the framers of Maaserot assume a profound passivity on the part of God. For them, it is human actions and intentions which move God to affect the world. God's claims against the Land's produce, that is to say, are only reflexes of those very claims on the part of Israelite farmers. God's interest in his share of the harvest, as I said, is first provoked by the desire of the farmer for the ripened fruit of his labor. His claim to that fruit, furthermore, becomes binding only when the farmer makes ready to claim his own rights to its use, whether in the field or at home or market.

Describing the classes of produce subject to heave-offering and tithes and outlining the conditions under which these agricultural gifts must be separated, Tractate Maaserot is independent of any particular passage in Scripture, 2 which, for its part, simply assumes that Israelites will

2 While Albeck (:?.,eraim, p. 217) notes, as I do, that Tractate Maaserot concerns all of Mishnah's agricultural dues, he cites Num. 18:21 ~24 as the single Scriptural passage pertinent to the tractate (p. 216). Since that passage describes the Levitical tithe (Mishnah's first tithe), in citing it Albeck presumably takes seriously the name of Mishnah's tractate. While that passage, along with all of Scripture's tithing laws, has general relevance for the materials before us, it has no direct implications that would account for Albeck's prominent placement of it.

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tithe the produce of the land. 3 We may therefore tum directly to the specifics of the unfolding of the tractate's law. A. Maaserot bifore 70 The tractate's one dispute attributed to the period before 70 appears to be pseudepigraphic. v.C.4:2 has the Houses dispute whether or not a householder who sets aside figs for consumption on the Sabbath must tithe those figs if he chooses instead to eat them either before or after the holy day. The notion that once produce is designated for a meal it must be tithed itself is Ushan (v.C.4:3). The specific problem addressed by the Houses is a subtle development of that idea. It asks whether the intention to use produce in a meal has a generalized effect upon the produce or whether it applies to the specified meal alone. The dispute's dependence upon an Ushan idea and the appearance in it of Judah, who restates the view attributed to the Hillelites, provide strong evidence that an Ushan concern has here been placed in the mouths of the Houses. This means that the tractate contains no evidence of the discussion of its topic before the period of Y avneh. 4

B. Maaserot in the Time if Yavneh While comprised of only four pericopae, the Yavnean material does contain the underlying fact of this tractate. Produce must be tithed when the individual is prepared to use it in a normal meal. Before that point, the food may be eaten as a snack, without being tithed. Since the Israelite has not yet appropriated the food for his own exclusive use, God's claim upon it likewise does not become active. Yavneans develop this fact in only a minor way. They assume that produce normally will be tithed when it is brought into the individual's home, since it is there that he has his meals. They ask whether or not a courtyard is comparable to a home, such that it too renders food brought into it subject to tithes (iv.B.3:5A-D, 3:9). Yavneans hold that this depends upon the physical fact of whether or not the court-

3 As Jaffee, p. 1, notes, Scripture focuses upon the needs of the individuals who receive the agricultural offerings it describes. Beyond stipulating that the tithes are to be paid, however, it does not elaborate how or when in the growth and processing of the produce this is to be done. 4 This is shown in detail by Jaffee in Neusner, Judaism, pp. 293-296.

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yard offers protection and privacy such as a home provides. As is typical, Ushan authorities will develop this issue to state that all depends upon the householder's own feelings about the courtyard. The two other Y avnean pericopae make relatively minor points. A seed-crop is not subject to tithes at all, since it will not be eaten, vi.B.4:5E-H. Yavneans dispute what defines a food, which must be tithed, vi.B.4:6. One side holds that we take into account only the botanical fact of the item's edibility, such that anything that can be eaten must be tithed. The opposing view follows normal communal behavior, stating that only things that people normally eat are to be tithed. Ushans, i.C.l: 1, accept the latter view as normative (see also Terumot, viii.D, and Hallah, i.D.l:8). Rather than botanical characteristics, the Israelite's own attitude determines what is or is not food.

C. Maaserot in the Time if Usha Ushans hold that the requirement to tithe is activated through the desires and perceptions of the Israelite who readies produce for use in a meal. This is expressed in the Ushan rule that, to be subject to tithes at all, produce must not only be edible but, second, must be cultivated purposely by Israelites for use as food and, third, must be privately owned (i.C.l:l, 2-3, 4). Only food that in these ways is subject to the desires of Israelites enters the system of tithes. With this much established, Ushans, like Yavneans, want to know when produce that is subject to tithes must in fact be tithed. They agree with the general Y avnean notion that tithes must be separated when the householder takes the food for personal use (ii.C.l :5-8). God's claim to the produce, that is to say, is activated at the same point at which Israelites exercise their claim to the food. In light of this notion, the majority of the materials before us consider the question of when the individual is held to have acquired the food for personal use. In the Y avnean stratum, the single consideration for determining liability to tithes is that the individual has brought the produce into his home. Ushans greatly expand the Yavnean discussion, considering other cases in which it is clear from the individual's actions that he considers the food ready for use in a meal. Meir, for instance, holds that any sale renders the produce subject to tithes, for the new owner has, in a formal way, acquired the produce as his own (iii.C.2:5). The weight of the law, however, holds that such formal acts of transfer and acquisition alone do not affect the status of the produce as regards tithing.

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Rather, only the purchaser's or recipient's desire to make use of the produce in a meal renders that produce subject to tithes (iii.C.2:2, 8D-J, iii.D.2: 1). As in the case of the designation of agricultural gifts, in which physical actions serve to indicate the individual's intentions, so here, further, we judge what the Israelite is thinking by the particular way in which he handles the produce. When he snacks on unprocessed produce-which normally is not subject to tithes-in a way that prevents him from returning the surplus to the processing vat, for instance, we can be certain that he views what he has taken as a little meal unto itself. Accordingly, he must tithe (iii.C.2:4A-C, D-E). Two other rules highlight the centrality of the Israelite's attitude in activating the system of agricultural restrictions. The home of a traveler, first, is that place at which he feels at ease, as he would in his own house. This is known, for instance, by the fact that he prepares to spend the Sabbath in that place (iii.C.2:3). In like manner, Ushans carry forward the Y avnean discussion of the status of a courtyard (iv.C.3:5E-I, 3:7). Yavneans define a courtyard that renders produce in it liable to tithes on the basis of function. Ushans, by contrast, are concerned with the individual's attitude towards the courtyard. It is considered comparable to a home only if the individual feels as comfortable and unselfconscious in it as he does in his own house.

II.

THE HrsTORY oF TRACTATE MAAsEROT

i. How Produce Becomes Suiject to Tithes Ushans limit the removal of tithes to agricultural produce alone (i.C.l: 1). Tithes need not be separated from what grows wild, without the intervention of Israelites who till the soil. This reflects Scripture's own notion that what Israelites purposefully grow upon the land of Israel comes to them with the help of God, to whom a share of the food therefore is due (Lev. 27:30, Dt. 26:14-15). An obvious corollary to Scripture's notion is that only what is edible is subject to tithes. The majority of the rules in the unit before us therefore delineate the point in their growth and subsequent processing at which specific types of produce are deemed edible (i.C.l:2-4). God's claim upon the produce, that is to say, becomes effective at the point at which the produce becomes of value to the Israelite who will use it as a food. This theory, which holds that the obligation to tithe revolves around the actions and desires

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of Israelites, is central in the Ushan stratum of this tractate as a whole. It therefore is important to note the emphasis it receives in this opening, Ushan, unit of the tractate. A. Bifore 70

B. The Time qf Yavneh C. The Time qf Usha 1: 1 All produce that is edible, privately-owned and that grows from the earth must be tithed. It is subject to tithes as soon as it becomes edible.

While stated anonymously, this rule provides the theory that underlies the long U shan lists of specific types of produce, which follow at M. 1:2-4. The main point here is that produce is subject to tithes when it becomes edible. The task of the next pericopae accordingly will be to establish the exact point in growth at which specific sorts of produce are edible. Since discussion and exemplification of this general rule comes only in U shan times, it is likely that the general principal itself derives from that period. There is no evidence that it was known earlier, at Yavneh or before 70.

1:2-3 At what point in their growth are various kinds of produce edible, such that they are subject to the removal of tithes? Ten items + dispute by Judah of one item. M. 1:3 provides ten further items, a total of twenty entries in a formally and substantively unitary list.

Attested to Usha by Judah, this list exemplifies the general principle established at M. 1: 1. Further discussion of this theory by Simeon b. Gamaliel (T. 1:5, who creates a Houses' dispute on the topic) and reference to an ambiguity involving one of the list's items after Ushan times (Ishmael b. Yose, T. 1: 1c) provide grounds for the placement of this material in the U shan stratum.

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1:4 Continuation of preceding. Rule for green vegetables. Apples and citrons are subject large and small. Simeon: Citrons are subject only when ripe. Rule for sweet and bitter almonds.

The anonymous rule follows M. 1:21-J, which claims that produce is subject to tithes when the edible portion takes shape. Simeon agrees with M. 1: 1 and the dominant theory at M. 1:2-3. He holds that the produce must actually be edible. Simeon's view is attested after Usha by Nahorai b. Shinayya, T. l:ld. On the basis of substance and cited authority we thus are on firm grounds in assigning M. 1:4 to Ushan times.

D. Unassigned ii. Tt'lzen Must Produce Be Tithed: Processing and Storage In unit i, Ushans indicate the earliest point at which produce may be tithed. Now they determine when the produce must be tithed. This is the point at which the food's owner takes the produce for his own personal use, either as a meal or, for instance, to sell in the market. Having chosen to use the produce for his own benefit, the individual must first separate heave-offering and tithes, so as to release the lien on the produce held by God. Before this point the individual may eat of the produce as a small snack, which does not indicate his final appropriation of the food for his own use. After this point the individual may do nothing with the produce unless he tithes.

A. Bifore 70

B. 7he Time qf Yavneh C. 7he Time qf Usha 1:5-8 At what point in its processing is produce rendered liable to the removal of tithes, such that tithes must be separated before any of that produce may be eaten? A

The owner must tithe his produce if he stores it for his own later use; 2) he must tithe when he appropriates the produce for profit or present use. So long as the produce

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catalog of twelve heavily glossed is not subject to either of these crirulings is attested to Usha by dis- teria, the owner may make a random snack of it, without tithing. putes involving Judah and y ose. This material is placed in this stratum on the basis of its substantive relationship to the Ushan materials in section i and the participation in its discussion by Ushan authorities. See v.C.4:4. D. Unassigned iii. J1!hen Must Produce Be Tithed: Acquisition This entirely Ushan unit defines the specific conditions under which an individual is deemed to have appropriated food. We deal primarily with two types of cases. In one, the Israelite either is told by someone in the market to take figs for himself (iii.C.2: 1, 2) or goes ahead and buys figs (iii.C.2:5). In the other, the individual is engaged in transporting his untithed figs to the market-place (iii.C.2:3). These several cases make a single point. The transfer of produce from one person to another does not in and of itself render it subject to the separation of tithes. It remains exempt unless the person who receives the produce indicates in some concrete way his intention to use the food in a meal. This means gathering all that he purchases into a single bunch and not, for instance, picking out and eating one at a time the figs

that he purchases. The further point is that produce always becomes liable when it is brought into the individual's home, for it is there that the person normally uses the produce in a meal. 5 One important issue of this unit therefore is to define what constitutes a person's home. iii.C.2:4 concerns whether, by prematurely separating heave-offering, the householder shows his intention to use the food as his own, such that tithes must now be separated as well (cf.,Jaffee, pp. 71-73). Eliezer, on the one side, deems the separation of the one offering to be an act of acquisition that renders the produce subject to all of the agricultural tithes. Simeon disagrees, presumably holding that the separation of heave-offering is not comparable to other manners in which the individual acquires the food for use in a meal. 5

This idea appears to derive from Yavnean times. See iv.B.3:5A-D.

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A. Bifore 70 B. The Time qf Yavneh

C. The Time

if Usha

2:2 If men were in a shop and a passer-by said, "Take figs"-they may snack without tithing. But the shopkeeper must tithe before eating, since the shop is like his home. Judah exempts the owner from tithing unless he turns his face from the public or moves to a private part of the shop.

The men need not tithe, since they have not acquired the produce by "bringing it home." The shopkeeper's store, by contrast, is like his home. Judah shows concern for the individual's intentions and perceptions. The store is analogous to a home only if the owner purposely establishes in it a private area for himself.

2:3 One who transports produce may make an untithed snack of that food until he reaches his destination. Then he must tithe before eating. Meir: He must tithe as soon as he reaches a place in which he intends to spend the Sabbath. A peddler who goes from town to town must tithe as soon as he reaches his night's lodging. Judah: The first house he enters is considered his house, and he must tithe.

This unit again develops ii.C.l :5-8, for it assumes that the individual may make a random meal of untithed produce until he has acquired that produce by bringing it home. The question is what is to be deemed a traveler's home. The anonymous rules and Meir assume that this is any place in which the individual feels at ease, as he would in his own house. Judah disagrees, holding that what is a home for one person must be considered a home for any other person who enters it as well. He thus disputes the application, but not the theory, of M. 1:5-8.

2:4A-C Produce from which one separated heave-offering before its processing was completed, such that it is not yet liable to heave-offering and tithes-Eliezer: In order to eat this produce, he must tithe as well. Sages: He need not.

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and 4:3. I must therefore assume that reference here is to an U shan Eliezer. The set of rules concerning the separation of heave-offering from produce the processing of which is not yet completed likewise appears to be Ushan. See Terumot, i.D.l:8, 9 and 10. 2:4D-E A basket of unprocessed The issue is explained in the prefigs from which one separated ceding entry. Simeon here has the heave-offering-R. Simeon permits position of sages in that pericope; making a random snack of it. Sages sages have the view of Eliezer. Parhold that he must tithe. ticipation in this discussion of Meir, T. 2:3, strengthens the impression that this is an exclusively U shan issue. 6 2:5 One who purchases five figs for an issar may not eat them without tithing; so Meir. Judah: He may eat them one by one without tithing, but must tithe if he gathers the purchase together as a batch.

Meir recognizes that purchase is an act of appropriation by which the purchaser makes his own the produce that formerly belonged to another. Like all acts of acquisition, purchase renders the produce subject to tithes. Judah disagrees and holds that only what the buyer does with the produce counts. The act of purchasing the produce has no affect, unless the buyer actually gathers together what he bought, for use in a meal. Developing Ushan principles and involving Ushan authorities, these materials are firmly placed in the Ushan stratum. Secondary development of this unit is found at iii.D.2:6.

6 Interest in the question of what the individual intended to do by separating one of the offerings provides further grounds for placement in the Ushan stratum.

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2:8D-J If two people exchange The exchange of produce is comproduce, they must tithe before they parable to a sale which, we know eat. Judah: One who exchanges from iii.C.2:5 may render the proeating figs for figs to be dried need duce liable to tithes. As at M. 2:5, not tithe until the figs he receives Judah holds that the simple fact of actually are dried. a sale does not render the produce liable. It need be tithed only when its owner desires it as food. Additional discussion of this Ushan ruling occurs at Usha and later, in the names of Rabbi and Simeon b. Gamaliel, T. 2:5, and Eleazar b. Zadoq (alt.: Simeon b. Yohai),

T. 2:7. D. Unassigned 2:1 One who says, "Take figs for yourself"-the recipient makes a snack of them without tithing until he arrives home. If he said, "Take figs and bring them home"-the recipient shall not make a random snack of them even before he reaches home.

This pericope applies the Ushan principle of ii.C.l :5 in a manner attested to Usha by Judah, iii.C.2:2. According to M. 1:5, produce is permitted as a snack until it is appropriated for the personal use of its owner. Under discussion now is the point at which the produce is deemed to have a new owner, whose own actions and intentions will determine whether or not it must be tithed.

One who says, "Here is an

This is a secondary development

2:6

issar for ten figs, a cluster of grapes, of the position of Judah, iii.C.2:5. a pomegranate or a melon which I shall choose"-eats the produce a bit at a time without tithing. If he purchased as yet unpicked produce, even if he specified which pieces of fruit he wanted, he is exempt from tithing and may eat the produce however he wishes, until it is

So long as the buyer does not gather the stipulated quantity into his passession, he may eat without tithing. This rule adds that this applies even to so subtle a case as one in which the buyer cuts off and eats one piece of melon at a time. The final rule is separate, noting that a sale

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is not determinative in the case of produce that, because it is as yet unpicked, cannot become subject to the separation of tithes. Dependent upon iii.C.2:5, these rules can derive from no earlier than Ushan times.

2:7 One who hires a harvester- Dt. 23:24-25 gives workers the while working the harvester eats right to eat produce upon which without tithing, because the Torah they are working. The Ushan pringives him the right to the produce. ciple, that a sale of produce renders If his dependents eat, they must that produce liable to tithes, is not invoked, since the worker is not tithe. deemed to purchase this food with his labor. This is not the case if he takes food and gives it to a relative. Since this rule assumes the principle given in the Ushan iii.C.2:5, it can derive from no earlier than Ushan times. 2:8A-C A worker may eat without tithing only that particular produce upon which he is working. He may however refrain from eating entirely until he reaches the better produce.

This clarifies the preceding entry.

3: 1 One who brings unprocessed The unprocessed produce is not yet produce into his courtyard-his subject to tithes, such that the dependents may eat without tithing, owner and his family may eat of it but his workers must tithe if they without tithing. Workers who have have a claim upon him for their contracted for their board, by contrast, purchase the produce with their board. labor. In accordance with iii.C.2:5, they must therefore tithe before they eat. Like iii.D.2:7-8A-C this rule derives from no earlier than Ushan times.

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3:2 One who brings his workers The point is that of M. 3: 1. Those to the field-If they have no claim workers with no contract for board upon him for board, they may eat have not "purchased" the produce without tithing. If they do have a they eat and therefore may make claim upon him for board, they a random snack without tithing. may only pick produce from the The rule for workers who do retree one piece at a time and eat ceive board is familiar from iii.C.2:5 and iii.D.2:6: If one does not gather it without tithing. together all of the produce he wishes to eat, that produce remains exempt from tithes, even if it was purchased. Dependent upon rules assigned to the Ushan stratum, this pericope can derive from no earlier than Ushan times. 3:3 One who hired gardeners who receive their food as part of their pay-They may eat one by one from the tree without tithing. If they gather produce together, they must tithe.

The principle is the same as at M. 3:2, such that we are on firm grounds in placing this pericope in the Ushan stratum or later.

3:4 If he found harvested figs in the road he may eat them without tithing. But if they had been processed, he must tithe, since they obviously derive from a batch that already is liable to tithes.

The theory is that of M. B.Q 10:2 and M. B.M. 2: 1-2: what is irretrievably lost is deemed abandoned and therefore is exempt from the separation of tithes. This is the case unless the produce had already been processed and become subject to tithes before it was lost. Since the rule that certain forms of processing render produce subject to tithes, ii.C.1 :5-8, is Ushan, this too can derive from no earlier than the Ushan period.

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1v. W7zen Must Produce Be Tithed: 7he Courtyard and Home

Basic notions concerning when produce becomes liable to the separation of tithes derive from Y avnean times. We know from the preceding unit that an individual who brings produce into his home will use that produce as part of a meal and therefore must tithe. If his courtyard serves as part of his home, he likewise must tithe produce he brings into it. Yavneans initiate the discussion of which courtyards are comparable to homes (iv.B.3:5A-D). They determine the character of the courtyard on the basis of its design, e.g., by whether or not it affords protection as does a home. Ushans carry forward the Yavnean thinking, using as a criterion the householder's own attitude towards the courtyard (iv.C.3:5E-I). What counts for Ushans is whether or not the householder himself deems his courtyard comparable to his home. Ushans apply this same reasoning to other structures that might or might not be deemed homes (iv.C.3:7). Y avneans also discuss a case in which produce grows within the courtyard itself. This produce's presence in the courtyard does not reveal the householder's intention to use it in a meal. It therefore is subject to tithes only when the individual actually prepares to eat it, e.g., by gathering the produce together (iv.B.3:9). Ushans carry forward this idea by defining what constitutes gathering the produce (iv.C.3:8). A. BifOre 70

B. 7he Time qf Yavneh 3:5A-D What kind of courtyard renders liable to tithes produce which is brought into it? Ishmael: A Tyrian courtyard, for housewares are safely stored in it. Aqiba: A courtyard to which more than one individual has a key does not render produce liable to tithes.

At issue is what sorts of courtyards afford privacy and protection, such that they are comparable to a home and render liable to tithes produce brought into them. The issue is developed by U shan authorities, iv.C.3:5E-H and at iii.D.3: 1. We thus are on firm grounds in assigning inception of this principle to Yavnean times.

3:9 Grapes, pomegranates or melons growing in a courtyard-Tarfan: The individual may pick one

If the produce is picked within the courtyard, it becomes liable to tithes only if it is gathered together as

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cluster of grapes, one pomegranate or one melon and eat it without tithing. Aqiba: To eat without tithing, he must pick only one grape at a time, or break off only a small piece of pomegranate or melon.

part of a normal meal. Attributed to Yavnean authorities and developing a topic initiated in Yavnean times, this dispute is firmly placed in this stratum. Its principle receives further deliberation at Usha, iv.C.3:8.

C. 7he Time qf Usha 3:5E-I What type of courtyard The issue first raised in Y avnean renders liable to tithes produce times (iv.B.3:5A-D) is further develbrought within it? Nehemiah: Any oped. While the underlying theory courtyard in which a man eats remains the same as at Yavneh, unselfconsciously. y ose: Any court- viz., that a courtyard that provides yard into which one enters and no privacy renders produce liable, the one inquires, "What do you want," expression of that theory takes typdoes not render produce liable. ically Ushan form. Ushan authorJudah: If there are two courtyards, ities are concerned not with physical the inner one renders produce traits (e.g., the shape of the courtliable, but the outer one does not. yard or how many individuals have keys), but with the attitude of the individuals who use it. Judah defines matters in terms of design. Creation of an inner courtyard indicates the homeowner's intention to have a private area. This area renders produce liable to tithes. An outer courtyard, which is relatively public, does not. 3:7 Produce that is brought into The theme of iv.B.3:5A-D and storage huts, etc., is not rendered iv.C.3:5E-I is carried forward, with liable to the separation of tithes. A the important principle under dispotter's hut-the inside renders pro- pute by Ushans, Judah and Yose. duce liable, the outer part does not. They agree that the function of the Yose: Only a structure that serves structure determines whether or not as a dwelling winter and summer it is deemed a home and renders renders produce liable. As for a produce brought into it liable for festive hut-Judah: During Taber- tithes. Yose's point is that only areas

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nacles it renders produce liable. Sages: It does not.

used as permanent dwellings are deemed homes. Judah disagrees and holds that the structure's function at any particular moment is determinative. Note that the anonymous rule, for the potter's hut, parallels the opinion attributed to Judah in the preceding entry.

3:8 A fig tree growing in a courtyard-the householder eats one by one without tithing. Simeon: He may have a fig in each hand and one in his mouth and still not tithe.

The underlying principle is that of iv.B.3:9, that produce that is picked within a courtyard but is not gathered together does not become liable for tithes. Simeon develops that principle, offering his own theory of the number of figs a person may have in his possession and still not need to tithe.

D. Unassigned 3:6 Produce brought onto a roof is not rendered liable to tithes. Gatehouses, porticos and balconies share the status of the courtyard in which they are found.

This material shares the topic and theory of iv.B.3:5A-D, iv.C.3:5E-I and iv.C.3:7. Interest in the particular question of whether or not specific types of buildings are deemed "houses" that render produce liable for tithes is confined to the U shan stratum. These rules apparently belong to that level in the development of the law.

3: 10 A tree standing in a courtyard with its bough extending into the garden-one may eat from the bough as he pleases, without tithing. If the tree grows in the garden and the bough is in the courtyard, one may eat without tithing only if he picks the produce one piece at a

The status of the produce as regards tithing is determined on the basis of where it is picked, not where the tree on which it grows is planted. Carrying forward the interests of iv.B.3:5A-D, iv.C.3:5E-I, 3:7 and 3:8 for a more complicated case, these anonymous rules cannot

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time. In other matters of law the derive from earlier than U shan times. status of the tree is determined by Indeed they are discussed by U shan where the roots are growing. authorities, Nehemiah, T. 2:20e and Simeon B. Gamaliel, T. 2:22. v. When Must Produce Be Tithed: Preparing the Meal

Produce normally is not subject to tithes until it is fully processed and designated for use in a meal. The Ushan point here is that whatever an Israelite intends for use in a meal must be tithed, even if its processing is not yet complete or if it has not yet been brought into the home (v.C.4:3, 4:4). Judah (v.C.4:2) carries forward this notion, stating that the individual's intention to use produce in a meal is not reversible. The produce must be tithed even if he changes his mind and decides to eat it before or after the time originally set for the meal. A. BifOre 70 4:2

See v.C.4:2

B. 7he Time

if Yavneh

C. 7he Time

if Usha

4:2 Figs hidden away for the Sab- Once produce is designated for use bath which one did not tithe--even in a meal, it must be tithed (v.C.4:3). after the Sabbath he shall not eat The issue here is a subtle develof them without tithing. Produce opment of this. We ask whether or set aside for the Sabbath-The not the individual must tithe the House of Hillel say: He must tithe produce if he decides to consume it before eating some of it before the as a snack prior to or after the time Sabbath. The House of Shammai: appointed for the meal. The HilBefore the Sabbath he may eat lelite view appears as well in the without tithing. Judah: The Hillelite initial anonymous rule and in the position applies if he sends pro- statement of Judah. The intention to use the produce in a meal is duce to a friend. operative from the moment it is formulated. It is not reversible. The Shammaites, by contrast, hold that the person's intention applies to the specified meal alone. The Houses

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here develop in a sophisticated way a principle stated simply in Ushan times (v.C.4:3--4). These substantive grounds and the close link between the Hillelite position and that of Judah (see also T. 3:2b-4) provide strong evidence that an Ushan issue has been placed in the mouths of the Houses. See Jaffee in Neusner, Judaism, pp. 293-296. 4:3 Untithed olives that are being Olives being softened normally are softened for pressing-he eats one not subject to tithes, since their by one from the bin without tithing. processing is not complete. If the But if he salts a small batch, he householder takes a batch of them must tithe. Eliezer: If the olives in for his own consumption as a small the bin were clean. he must tithe. meal, however, they must be tithed. But if they were unclean, he need His use of them in a meal is deternot tithe, since he can return the minative. Eliezer is concerned with surplus from his small batch to the the individual's intention. If he only bin. takes olives that he may return to the softening vat he clearly does not intend those olives as a "meal." He therefore may continue to eat of the olives he has gathered without tithing. The principle stated here is in line with the Ushan materials at v.C.4:2 and 4:4. I therefore assume that reference is to an U shan Eliezer, just as at iii.C.2:4A-C. 7 4:4 One who drinks wine at the press is exempt from removing tithes, so Meir. Eleazar bar Zadoq declares him liable. Sages: If he mixed it with hot water, he must

Meir holds that the wine is not yet subject to tithes, for its processing is not yet completed. In line with ii.C.l:7, Eleazar bar Zadoq holds that once the wine is skimmed in

7 The Eliezer cited here has a very different legal perspective from that assigned to the Yavnean Eliezer b. Hyrcanus, who, in Tractate Terumot and elsewhere, refuses to take into account intentions or extenuating circumstances. See, e.g., Terumot, iv.B.8: 1-3.

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tithe. If he mixed it with cold water, he is exempt from tithing.

the vat, it is in all events subject to tithes. Sages frame the issue in terms familiar from Eliezer's opinion, v.C.4:3.

D. Unassigned 4: 1 One who pickles, boils or salts produce in the field is required to tithe + five sorts of processing that render produce in the field subject to tithes.

Produce still located in the field normally is permitted as an untithed snack, for the farmer has not yet acquired it for use in a meal. The point here is that, even in the field, if the farmer prepares the produce as he normally would fix a meal, that produce is subject to tithes. This is the same point made at v.C.4:3 and 4:4. Participation in the present discussion of Simeon b. Judah, T. 3:1, supports the placement of this rule at Usha.

4:5A-D He may husk and eat The point is the same as m one kernel of barley at a time with- preceding entry, v.C.4:3 and out tithing. But if he gathers a few Note also the participation in husked kernels in his hand, he must discussion of Rabbi (alt.: Meir) tithe. Yose b. Judah, T. 3:5b.

the 4:4. this and

vi. Ambiguities in the Law qf Tithes The unit is a compilation of various rulings that address ambiguities in the application of the principles discussed earlier in the tractate. These primarily concern the question of what produce is deemed a food, such that it is subject to the separation of tithes. Yavneans, first, dispute whether or not parts of a plant that, while edible, normally are not eaten become subject to tithes (vi.B.4:5E-H, 4:6). Eliezer, as usual, along with Gamaliel will not take into account the fact that people normally do not eat something. If they can eat it, they say, it must be tithed. Aqiba disagrees, foreshadowing the view held, as we shall see, by Judah.

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Ushans look at a more developed case, in which an individual makes a drink by straining water through grape lees, which themselves are not edible at all (vi.C.5:6). Contrary to the anonymous rule, Judah holds that the householder's intention to create a drink renders the resultant liquid subject to tithes, even though it derives from what itself would not be tithed. In an anonymous rule, Ushans correlate the rules of unit i with those of units ii-v. They note that, no matter what manner of sale, transfer or other form of acquisition the produce undergoes, it cannot become subject to the separation of tithes until it is fully ripened and ready for use as a food (vi. D. 5: lA-D). A. Bifore 70

B. The Time qf ravneh 4:5E-H If coriander is sown for seed, the leaves are exempt from tithes. If it is sown for the leaves, both the seeds and leaves are subject to tithes. Eliezer: Seeds, leaves and pods of dill are subject to tithes. Sages: That is the case only for cress and field rocket.

The farmer's intended use of his crop determines whether or not it will be subject to tithes when it is harvested. It will be subject to tithes only if he originally sowed it for use as a food. Eliezer and sages dispute the application of this theory. Eliezer holds that all parts of the plant which potentially are eaten are under the law of tithes. Sages state that the law extends only to such parts as carry the plant's flavor.

4:6 Gamaliel: Stalks of fenugreek, etc., are subject to tithes. Eliezer: Stalks, berries and blossoms of the caper bush are subject to tithes. Aqiba: Only the berries are subject, for they are the fruit.

Gamaliel and Eliezer are consistent with the principle ofM. 4:5E-H. Any part of the plant that might be eaten is subject to tithes. Aqiba disagrees with this prevailing theory. He claims that the potential use of seed and stalks as food does not bring them under the law of tithes. Only what normally serves as food need be tithed, regardless

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of the individual farmer's plan for the particular item. 5:1E-G If he picked produce to send to his fellow before the harvest, it is exempt from tithes until the recipient processes it. Eleazar b. Azariah: If such produce is available in the market, it is subject to tithes before it is sent to the friend.

C. The Time

Normally the sender must tithe the gift, for fear that, thinking tithes already have been removed, the recipient himself will not do so. If the whole crop is not yet harvested, such a precaution need not be taken, since the recipient cannot assume that what he receives has been tithed. This is not the case if such produce is already in the market. This pericope's theory is quite different from the Ushan idea found at Demai, ii.C.3:3E-G, which assumes that all gifts of produce must be sent already tithed.

if Usha

5:5 One who purchases a field of greens in Syria-if he bought it before the crop ripened, he need tithe the crop once it ripens. If he bought it after it had ripened, he need not tithe even the late ripening produce. Judah: He may hire workers to pick for him. Simeon b. Gamaliel: The anonymous rule applies only if he bought the land. If he only bought the crop, under no circumstances is it liable for tithes. Rabbi: If he owns the land, he must tithe late ripening fruit.

In Syria, only produce that ripens under Israelite ownership need be tithed. If the crop is ripe when the Israelite purchases the field, it remains exempt. Rabbi takes into account the point of ripening of each piece of produce and not of the field as a whole (see vi.D.5:3). This material is placed in the U shan stratum because of its citation of Ushan authorities as well as its dependence upon the Ushan principle (i. C .l: l-4) that produce becomes subject to tithes when it ripens. 8

8 T. Maaserot 3:14 appears to be wrong in assigning to Aqiba the rule stated here anonymously (so Primus, p. 78, who reconstructs an original Aqiban statement) and in citing Rabbi's position in the name of sages.

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5:6 One who soaks grape-lees for Judah takes seriously the individtheir liquid-if he extracted the ual's intention to produce a drink. same amount of water that he Even though it derives from what added, the water need not be tithed normally is not tithed at all, the drink is subject to agricultural offeras wine. Judah: He must tithe. ings. Judah thus follows the theory often found in his name, that intention is central in determining the status of foods. This provides firm grounds for placing this rule in the Ushan stratum. See vi.D.5:4. 5:8 Produce that is not grown in the land of Israel or that is not food is not subject to tithes. Meir and Y ose suggest specific sorts of produce which, for these reasons, are not subject.

These rules depend upon the Ushan principle (i. C .1: 1) that inedible produce is not subject to tithes. In T. other Ushan authorities participate in this same discussion: Simeon b. Gamaliel, T. 3:15, and Judah, T. 3:16.

D. Unassigned 5: lA-D One who uproots shoots for transplanting need not tithe. If he purchased produce still attached to the ground the produce remains exempt from tithes until it is harvested.

Picking produce for transplanting is not deemed a "harvest" that renders the produce subject to tithes. A purchase of unharvested produce likewise does not constitute a "sale" that renders the produce subject to tithes. These qualifications of U shan conceptions regarding the effect of a harvest or sale (i. C .1 : 1-4. ii.C.l :5-8 and iii.C.2:5) cannot derive from earlier than Ushan times.

5:2 One who uproots turnips and radishes as a seed crop must tithe, for this is their harvest. Onions that have rerooted in an attic and are exposed to the sky are subject to the law of tithes.

The first rule is a corollary to M.5: lA-D. The point at which the turnips and radishes are uprooted is that point at which they are edible and available for use as food. Even though they are to be used

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as seed, they therefore must be tithed. This is the view of Eliezer and Gamaliel, vi.B.4:5E-H and 4:6, which takes no account of the intentions of the farmer. The second rule here develops i.C.l: 1, defining what constitutes agricultural produce that will be subject to tithes. 5:3 A man shall not sell his produce, once it has ripened, to one who is untrustworthy to remove tithes. He may however take the ripe fruit for his own use and sell the unripened remainder to whomever he pleases.

A person may not give liable produce to one who probably will not tithe it. He must tithe it himself first. The notion that the whole field does not share the status of the early ripening produce is attested by Rabbi, vi.C.5:5. The present rule therefore must be late.

5:4 A man shall not sell his straw, The principle and basis for assignolive-peat or grape-lees to one who ing this material to the Ushan strais untrustworthy to remove tithes. tum or later is the same as in the He may however remove what is preceding entry. In holding that edible and sell the rest to whomever the potable liquid in grape-lees rehe wishes. mains subject to tithes, this rule also parallels the Ushan law at vi.C.5:6. 9 5:7 Grain found in ant-holes beside a stack of fully processed grain is subject to the removal of tithes. We assume that it came from that very stack, which itself is liable.

The notion that grain becomes liable to the separation of tithes when it is smoothed over in the pile on the threshing floor is Ushan (ii.C.l:5-8). This too presumably is from the Ushan period.

9 Note as well the participation in this discussion of Simeon b. Gamaliel, T. 3:13, who reports that the Houses concur in accepting this rule. The Houses' statement itself appears to be a creation of Simeon's own day.

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III. CoNcLusiON The tractate has its origin in Yavnean times, when the Mishnah's authorities determine that, contrary to what Scripture would lead us to believe, produce is not invariably subject to the separation of agricultural offerings. The systematic exposition of this idea comes only in the Ushan period, however, when a full list of the classes of produce subject to tithes and the conditions under which agricultural taxes must be separated is developed. The point ultimately made by the tractate as a whole is Ushan, that God's claim for portions of the produce of the land of Israel is effective only upon that food that Israelites purposely cultivate and then take for their own use in the meals that provide their sustenance. The Israelites' own exploitation of the land for the production of food, that is to say, brings with it the obligation to set aside agricultural dues. These dues recognize God's role in providing the land, the sun and rain that allow the growing of crops in the first place. Food that grows without the intervention of Israelites or that Israelites do not desire for use in a meal, by contrast, is exempt from God's claim. In the case of these things the individual has not appropriated for himself God's blessings. God, therefore, is owed no share. When we recall Mishnah Terumot's understanding of the Israelite as a locus of sanctification, we see that that tractate along with the present one suggest a unitary picture of the processes of sanctification operative in the Israelite world. We know from Tractate Terumot that, through their will, Israelites impart a status of consecration to a specific quantity of produce; through their desires and perceptions they maintain that food in sanctity; and, finally. Israelites themselves determine the point at which the food no longer is deemed holy. Tractate Maaserot enhances the picture drawn by Tractate Terumot by stating firmly that, just as Israelites control specifically what will and will not be holy, so their own desires for produce and their intentions in growing and processing crops determine what food is in the first place subject to sanctification. Food's being subject to the Israelite's will is a precondition of holiness, Tractate Maaserot tells us. The logical counterpart to that idea is Tractate Terumot's claim that application of the Israelite's intentions actually designates as holy some specific quantity of produce. Israelites' intentions and desires thus account for all aspects of the system of sanctification embodied in the Division of Agriculture. God, to be sure, is the ultimate source of all holiness. Only what is owed or dedicated to him can, in the first place, take on a status of sanctification.

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The fundamental theological datum of this division, however, is that, in actually establishing what is consecrated and what is secular, God acts and wills only in response to the intentions of common Israelites, who grow food upon the land of Israel and separate the offerings mandated by Scripture.

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CHAPTER EIGHT

THE DEVELOPMENT OF THE TRACTATES: MAASER SHENI

I.

INTRODUCTION

The topic of this tractate is second tithe, an amount of produce Israelites must separate from their crops and carry to Jerusalem to be eaten "before the Lord." Scripture states that this is so that the Israelites will "learn to fear the Lord your God always" (Dt. 14:23). The Mishnah, for its part, has an interest in this offering that parallels the long middle section of Tractate Terumot. It explores the responsibility of Israelites to maintain the consecrated produce in their secular domain before it is actually eaten in Jerusalem under conditions of sanctity. Indeed the topic of second tithe allows analysis of the question of the handling of holy food from an angle unforeseen by Tractate Terumot. Dt. 14:2425 states that a person who lives far from Jerusalem may sell his second tithe. The money he receives takes on the consecrated status of the original produce. It must be carried to Jerusalem and used there to purchase food, which is eaten in place of the original tithe. Exposition of this topic gives the Mishnah's authorities the opportunity to stipulate the powers of the Israelite who transfers the status of holiness from

one object to another, desanctif)ring the first and sanctifying the second in its place. As we have come to expect, Mishnah Maaser Sheni's distinctive point is found in its Ushan materials. These comprise almost the whole of the tractate's long shank. Repeating ideas known from Tractate Terumot, the Ushan law states that the designation of produce or other objects to be holy depends upon the Israelite's intentional declaration that he deems them henceforth to be sanctified. In the case of this tractate, of course, such an act of will allows the householder to deem one commodity holy in place of something that previously held that status. In the Ushan view, the validity of this transfer does not depend upon the physical act of sale or exchange in which the householder sells second tithe-produce or uses second tithe-funds to buy food in Jerusalem. The transfer of status depends, rather, upon the simple designation of the

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Israelite, who indicates what object, food or money he intends to be holy. This is not to say that the Israelite's ability to impose a status of sanctity has no limits. As we know from Tractate Maaserot, only produce that grows as a result of the partnership between God and the Israelites is subject to sanctification in the first place. Yet just as in Tractate Maaserot the conditions that allow for sanctification depend upon the Israelite's own actions and desires, so in Tractate Maaser Sheni, the limits of the individual's ability to impose a status of sanctification revolve around his own perceptions and hopes. Israelites determine1 exactly what can and should be holy and, in the case of second tithe, establish the monetary value of those holy items. For one central point of this tractate is that, in transferring a status of sanctification from one subject to another, Israelites determine how much or how little food may become holy. Tractate Maaser Sheni thus deepens the points made by Tractates Terumot and Maaserot. It teaches that 1) nothing in God's creation is intrinsically holy and that 2) even objects already holy have no intrinsic value, just because they are sanctified. Their worth, rather, is a reflex of the Israelite marketplace, changing with the whims of common Israelite merchants and shoppers. The result of this perspective is that, according to the Mishnah, Israelites, and not God, have full control over the process of sanctification. The possibility of sanctification is contingent, of course, upon the existence of God. Holiness, however, does not simply exist as a transcendent and ongoing quality in the world. Its presence, rather, is a function of the actions and desires of common Israelites and the everyday workings of their economy. Along with this main discussion concerning second tithe, the tractate refers to several cognate topics. These include the restrictions upon produce of an orchard in its fourth year of growth. Like second tithe, this fruit must be brought to and consumed in Jerusalem. This similarity to second tithe accounts for the placement of these materials in this tractate instead of in Tractate Orlah, which deals with the restric-

1 Even the limits of the Israelites ability to designate as holy (e.g., the item must be food and cultivated) largely depend upon his own perception. We have seen this, for instance, in Tractate Terumot's notion that Israelites themselves determine what is or is not in the status of food, without reference to an objective standard of edibility. Within the materials before us, further, Israelites even are accorded the power to render non-food items sanctified.

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tions that pertain to the first three years of the orchard's growth. This tractate also covers the law of removal, which states that in every third year the householder must remove from his home all tithes that he has collected but not yet distributed. The facts needed to understand these Mishnaic discussions are provided by the following Scriptural passages. Dt. 14:22-26 and Lev. 27:30-31 deal in turn with the separation of second tithe and the law for redeeming it. These laws are covered in Tractate Maaser Sheni's first five units, the main bulk of the tractate. Lev. 19:23-25 concerns the restrictions placed upon produce of an orchard's fourth year of growth, the topic of unit vi. Dt. 26: 12-15, finally, outlines the laws of removal and the confession the householder recites upon carrying out the removal. These matters are discussed in unit vii. You shall tithe all the yield of your seed, which comes forth from the field year by year. And before the Lord your God, in the place which he will choose, to make his name dwell there, you shall eat the tithe of your grain, of your wine, and of your oil, and the firstlings of your herd and flock; that you may learn to fear the Lord your God always. And if the way is too long for you, so that you are not able to bring the tithe, when the Lord your God blesses you, because the place is too far from you, which the Lord your God chooses, to set his name there, then you shall turn it into money, and bind up the money in your hand, and go to the place which the Lord your God chooses, and spend the money for whatever you desire, oxen, or sheep, or wine or strong drink, whatever your appetite craves: and you shall eat there before the Lord you God and rejoice, you and your household. (Dt. 14:22-26) All the tithe of the land, whether of the seed of the land or of the fruit of the trees, is the Lord's; it is holy to the Lord. If a man wishes to redeem any of his tithe, he shall add a fifth to it. (Lev. 27:30-31) When you come into the land and plant all kinds of trees for food, then you shall count their fruit as forbidden: three years it shall be forbidden to you, it must not be eaten. And in the fourth year all their fruit shall be holy, an offering of praise to the Lord. But in the fifth year you may eat of their fruit, that they may yield more richly for you: I am the Lord your God. (Lev. 19:23-25) When you have finished paying all the tithe of your produce in the third year, which is the year of tithing, giving it to the Levite, the sojourner, the fatherless, and the widow, that they may eat within your towns and be filled, then you shall say before the Lord your God, "I have removed the sacred portion out of my house, and moreover I have given it to the Levite, the sojourner, the fatherless and the widow, according to all thy commandments which thou hast commanded me; I have not transgressed any of thy commandments, neither have I forgotten them; I have not

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eaten of the tithe while I was mourning, or removed any of it while I was unclean, or offered any of it to the dead; I have obeyed the voice of the Lord my God, I have done according to all that thou hast commanded me. Look down from thy holy habitation, from heaven, and bless thy people Israel and the ground which thou hast given us, as thou didst swear to our fathers, a land flowing with milk and honey." (Dt. 26: 12-15)

A. Maaser Sheni bifore 70 A major point of the tractate first is argued by the Houses, ii.A.2:7, SA-C and 9F-H. They dispute whether coins used in the purchase of second tithe are individually sanctified with the status of that offering, or whether the coins simply represent the value of the consecrated produce, yet have no abiding status of consecration of their own. The Shammaites take the former view. In a case in which consecrated and unconsecrated coins are mixed, 2 they would hold that the individual must locate the specific coins that had the status of second tithe. These specific coins, they claim, retain the status of consecration of the original second tithe produce for which they were exchanged. According to the Hillelites, by contrast, in the case of a mixture, the status of sanctification originally held by the few coins now pertains to the batch as a whole. The householder need simply collect a value in coins equal to that of the second tithe-money that was lost. This constitutes a designation of these newly collected coins to represent the original second tithe-produce. This Hillelite view is important, for it may stand behind the theory of sanctification found in this division as a whole. In allowing the householder to choose certain coins to be holy, the Hillelites hold that he determines that what he picks will represent the holy share owed from the whole batch. This action is comparable, for instance, to the designation of produce to be heave-offering. This view of the transfer of holiness dominates in the material before us (ii.B.2:91-L, ii.C.2:8D-E, ii.D.2:5), although, for the specific case at hand, the Shammaite view appears as well (ii.D.2:6). Other issues attributed to the Houses cannot be firmly verified to the period before 70 and, in all events, do not play roles in the unfolding of the Mishnah's law. The Houses argue whether produce that can be used either as food for humans or as animal fodder normally is to 2 The Houses argue their positions through a slightly different factual situation, discussed in detail in unit ii. To facilitate exposition, I have applied the Houses' theories to the case given here.

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be treated as an edible, such that it is subject to the rules of uncleanness and the separation of tithes (i.A.2:3B-D, 4F-J). Later authorities will simply assume that, if known, the owner's intention regarding the use of the produce determines whether or not it is to be treated as a food. The Houses dispute whether or not produce of the fourth year of growth of a vineyard is in all respects comparable to second tithe (vi.A.5:3). vii.A.5:6H-j's dispute concerning whether or not agricultural gifts that have been cooked are subject to removal cannot be verified to the period before 70. Finally, the list of ordinances attributed to Yohanan the High Priest does not concern matters referred to elsewhere in the Mishnah, such that its origin in Second Temple times cannot be authenticated. 3 B. Maaser Sheni in the Time qf Yavneh The Yavneans' central concern is that the full value of produce designated second tithe will be transferred to the money for which it is sold, and that later the full value again will be received, when food is purchased and eaten in place of the original tithe. To make certain that none of the value is lost, Y avneans require that, in selling consecrated produce, the individual accept only coins that are properly minted, circulating and available to be used as payment at the time of the sale (i.B.l :2G). They further rule that the purchase of non-food items with second tithe-coins does not transfer to those items the status of consecration held by the coins (i.B.l :5A-C, 2:3A, 4A-E). The coins retain their status as second tithe and must still be used to purchase foods that can be eaten in place of the original tithe. While in line with the general Y avnean picture of the processes of sanctification, these rules are quite different from the Ushan ones that, as we shall see, hold that anything an Israelite intentionally purchases with consecrated coins takes on the status of holiness held by that money. Aqiba introduces a point assumed throughout the Division of Agriculture. He states that, at the time of removal, one need not separate and remove heave-offering and tithes from produce that only later will become subject to those offerings. Aqiba holds, that is to say, that offerings are in no physical sense present in produce that is not yet subject to their separation (vii.B.5:8). This view is in line with the understanding 3 Cf., Oppenheimer, Am Ha-Aretz, pp. 34-35. and Lieberman, Hellenism in Jewish Palestine, pp. 139-143.

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of Tractate Maaserot that agricultural gifts need not be separated at all from produce that is not yet processed and ready for consumption. A final Y avnean pericope likewise introduces an idea that will be important in the development of the laws of agriculture. Yavneans rule that one who is away from home and, at the time of removal, cannot physically distribute the agricultural gifts he has gathered, validly may make an oral declaration designating those gifts for their rightful recipients (vii.B.5:9). Yavneans thus initiate for this special case a mode of designating heave-offering and tithes that, in Ushan times, will become a commonplace. Such designations are assigned by Ushans for use in the separation of heave-offering (Terumot, ii.C.3:5) and for accounting for agricultural gifts that may not have been separated from doubtfully tithed produce (Demai, iv.D.S: 1, 2).

C. Maaser Sheni in the Time qf Usha The Ushan development of the Yavnean ideas is predictable on the basis of what we have seen in the Ushan strata of other tractates in this division. Ushans indicate that, as in the designation of heaveoffering, the individual's intention is central in the valid consecration of second tithe. Proper intention, that is, determines whether or not produce one purchased with second tithe-coins actually takes on the status of second tithe (i.C.l:3, 4, i.D.l:5D-E, 6, 7, iii.C.3:12, 13). Unlike Yavneans, Ushans hold that, if purchased intentionally, non-edibles take on the status of second tithe. Ushans even hold that a householder's intention to consecrate something as second tithe is effective in a case in which an actual exchange of produce and coins is not carried out (iii.D.2: 10, 3:3, 4). Like other consecrated offerings, that which has the status of second tithe must be put to its normal use (i.C.2:1A-H, i.D.l:l, 2A-F). This assures that portions of the produce that normally would be eaten do not go to waste. Yet, as in Tractate Terumot, Ushans here are clear that once sanctified produce or coins are of insignificant value, they lose their status of consecration and again may be put to secular use (see iv.A.4:8G-I). The Israelite's attitude towards the holy determines whether or not it retains its consecrated status. The long shank of this tractate, units iii-vi, covers topics not referred to by Yavnean authorities. Like the other Ushan materials in this tractate, these parallel the chief Ushan concern of Tractate Terumot for the period of time during which sanctified produce is protected in the

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hands of the Israelite, such that it might be subject to misuse. The point made by two of these discussions likewise is familiar. One concerns the case in which a householder finds produce and is not certain whether or not it is consecrated. Contrary to the view of Judah, v.C.4:10, Yose, v.C.4:11, and the anonymous rules, v.D.4:9, 12, hold that produce need be treated as consecrated only if the householder has good reason to believe that it is in fact holy. So long as there are any grounds for claiming that what he has found is not sanctified, he may in fact treat it as secular. The point, familiar from Tractate Terumot, is that the objective status of the produce--consecrated or secular-is of no real weight. What matters instead is the attitude towards the produce of the Israelite who finds it. This same view pertains to the question of the value at which produce in the status of second tithe is bought and sold (iv.D.4: 1, 2, 6, 8A-F). This value depends upon the prevailing market at the time and place of the sale. Sanctified produce has no intrinsic value. Nor is its worth established by the high or low value it has at any given point. It is determined, rather, by what an Israelite would pay for it at the given moment if it were normal, secular food. Ushans agree with the Shammaite-view of Tractates Demai and Shebiit, that each individual must take actions to prevent others from transgressing. Here they dispute the extent to which a farmer must protect from transgression passersby who might pick and eat produce ripening in a vineyard in its fourth year of growth (vi.C.5: 1). A large section of the Ushan materials concerns the Scriptural rule that produce in the status of second tithe may be sold only if the individual lives too far from the holy city easily to carry the produce itself. Ushans rule that, once produce in the status of second tithe has been brought into Jerusalem, it may not be brought out again or redeemed (iii.C.3:5). Since the householder had the opportunity to eat the produce in the holy city, the Scriptural conditions for redemption no longer pertain. This settled, Ushans dispute whether the same rule regarding redemption applies to coins in the status of second tithe that are brought into Jerusalem or to produce from which second tithe has not yet been separated that is carried into the holy city (iii.C.3:5, 6A-B, 6C-F, 6G-L). The issue, whether or not the biblical prohibition applies in cases in which the householder can already use the second tithe in Jerusalem, remains moot and has no larger implications for the law of this tractate as a whole. The short Ushan discussions of the field or vineyard in its fourth year of growth (vi.C.5: 1, 2, vi.D.5:4, 5), of the

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laws of removal (vii.C.5:6A~G, 14) and the apparendy Ushan exegesis of the text of the confession read at the time of removal (vii.D.5: 11 ~ 12) detail secondary, though relevant, aspects of the agricultural law.

II.

THE HISTORY OF TRACTATE MAASER SHENI

i. The Use qf Food and Coins that are Second Tithe

Yavneans know from Dt. 14:22~26 that produce designated as second tithe may be sold. The proceeds are brought to Jerusalem and used there to purchase food that is eaten in place of the original tithe. Y avneans wish to assure that in this process of sale and repurchase none of the value of the original second tithe is lost. They therefore rule that the original tithe may be sold only for well minted coins that currendy are circulating (i.B.l :2G). The farmer surely will be able to use these in Jerusalem to buy food. Yavneans, second, rule that, in Jerusalem, the farmer may use the money only to buy edibles (i.B.l :SA-c, 2:3A). This assures that produce equal in value to the original tithe will be bought. These edibles, finally, must be eaten in their usual manner, so that none of the food goes to waste (see i.C.2: lA~H). Ushans examine the application of the Yavnean rules in ambiguous cases. How, for instance, do we treat the container in which wine purchased as second tithe is sold? Ushans rule that this depends upon the intentions of the individual who makes the purchase. If he purposely purchased the container, it is consecrated as second tithe and must be exchanged for food to be eaten in Jerusalem (i.C.l:3~4). The individual's intentions have the same importance in a case in which the food he purchases has more than one normal use, such as oil that may be eaten or used as an unguent. Ushans rule that the oil must be put to the purpose for which it was purchased. The farmer's own attitude, that is, determines whether it is a food or a lotion (i.C.2: lA~H, i.D.l:SD~E, 6). 4

4 Within the Yavnean and Ushan strata of this unit, only two rules contain attributions, i.B.2:4A-D and i.C.2:2. In order to allow the reader to follow the development of the unit's legal theories, I therefore have listed the anonymous materials according to the periods from which they appear to derive, instead of placing them in category D., the unassigned materials. Placement of these rules depends upon the law's logical development and is supported by attestations found in Tosefta.

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A. Bifore 70 2:3B-D The House of Shammai Fenugreek is an ambiguous type of say: Fenugreek that is heave-offering food, for it may be eaten by hunormally is treated as a food and mans, used as cattle fodder, or used is preserved in a state of cleanness. as a shampoo. The Houses agree If it is to be put to some other use, that if it is heave-offering, it may it is allowed to become unclean. be put to any of its usual purposes. The House of Hillel say: It nor- They simply dispute whether fenumally is not treated as a food, such greek more regularly is used as a that it is not preserved in clean- food or as a non-edible. The disness. But if it is to be eaten as a pute appears in this tractate because food, it must be kept clean. it supplies the facts that underlie the Ushan discussion at i.C.2:2. Since the fact that heave-offeringfenugreek may be used as fodder likewise is assumed at Terumot, viii.D.ll:9, probably an Ushan rule, it is clear that the facts of this dispute were known by U shan times. Yet there is no evidence that the material is so early as Y avnean or pre-Yavnean. Uncertainty in Ushan times over the exact nature of the Houses' opinions---disputed by Meir and Judah, T. 2:1 b-gives weight to the view that this material does not derive from earlier than U shan times. 5 2:4F-J Vetches in the status of heave-offering: The House of Shammai-They normally are treated as a food. The House of Hillel-They normally are treated as fodder. Shammai says: They always are used as a food and kept in cleanness. Aqiba says: They never are 5

The issue is the same as in the preceding entry, as is the reason for this material's inclusion in Tractate Maaser Sheni. Participation here of the Y avnean, Aqiba, as well as the reformulation of the Housesdispute by Ushans (Meir, Judah, Yose, T. 2: lc) gives strong evidence

On this and the following entry, see Haas in Neusner, Judaism, pp. 296-297.

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treated as a food and are allowed to become unclean.

that this issue is, at earliest, Y avnean, and that the materials attributed to the Houses and Shammai are Ushan.

B. 7he Time qf Yavneh 1:2G They do not exchange (= The farmer must exchange his secdeconsecrate) produce in the status ond tithe-produce for coins that of second tithe with poorly minted will surely be accepted as legal tencoins, coins that are not currently der in Jerusalem. This rule appears circulating or coins that one does not to be Y avnean. Dosa, a Y avnean have in his immediate possession. authority, disputes one aspect of it, T. 1:4. It receives further development in Ushan times, with a discussion of the validity of coinage deriving from the period of the Bar Kokhba revolt, T. 1:6. 1:SA-c One who buys water, salt, unharvested produce or over-ripe produce with money in the status of second tithe--that which he buys has not acquired the status of second tithe.

This is the logical correlate of the preceding entry. Money in the status of second tithe must be used to purchase foods that are processed and fit for consumption. A basic concept of this tractate, there is no evidence that this notion, stated anonymously, is known before Yavnean times. Discussion of it appears at Usha, i.C.1 :3-4, and iii.C.3:2. At T. 1:13b-14 Ushans cite Yavnean discussions concerning the permissibility of the purchase of specific types of produce.

2:3A Fenugreek that has the status of second tithe must be eaten as a food.

While fenugreek may serve as cattle fodder or shampoo, if it is in the status of second tithe, it must be consumed by humans. The principle, that second tithe must be eaten or otherwise consumed by

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people, has its full expression at Usha, i.C.2: lA-H. I assume that this anonymous rule is Yavnean because the parallel rule, for vetches, is firmly assigned to a Y avnean authority, in the following entry. 2:4A-E Vetches in the status of The principle is the same as in the second tithe must be eaten when preceding unit and is attested to sprouting, i.e., when they are a Yavneh by Tarfon. food for humans. Later in their growth they serve as cattle fodder. If they become unclean: TarfonLet them be eaten in small pieces, which do not impart uncleanness. Sages-Let them be exchanged for coins, which can be used to purchase clean produce.

C. The Time qf Usha 1:3 The hide of an animal purchased in Jerusalem with money in the status of second tithe remains unconsecrated. The sealed jar in which wine is purchased remains unconsecrated. The shells of nuts purchased with second tithe-funds are unconsecrated. Unfermented grape-skin wine, which is not yet ready for consumption, may not be bought with money that is second tithe.

In line with i.B.l :5A-C, containers purchased incidentally along with foods are not deemed to have the status of second tithe. Ushans add their own reason for this. The containers remain unconsecrated because the farmer did not intend to consecrate these things as second tithe. If he did have that intention, i.C.l :4, even the non-edible containers or shells become second tithe and must be exchanged for edibles. The role of intention in this and the following materials, the participation in this discussion of contemporaries of Rabbi (T. l :9 and 12) and the logical relationship to Y avnean material indicate that these rules derive from no earlier than U shan times. Jacob Neusner - 978-90-47-41637-1 Downloaded from Brill.com02/08/2023 11:54:33AM via Universite degli Studi di Milano

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1:4 If one purchases with consecrated money a wild animal as a sacrifice or a domesticated animal as ordinary meat-the hide is consecrated. If one purchases a jug of wine in a place in which it is possible to buy the wine without the jug, the jug is consecrated. Fruit purchased in a basket-the basket is consecrated.

Here the individual purposely uses consecrated money to buy inedibles-the wine jar or fruit basket as well as the skins of animals that are not fit for the offerings for which he purchased them. All that the individual has acquired is deemed consecrated. The jug, basket and animal hide must be resold so that food may be purchased in their place.

2: lA-H Produce in the status of second tithe must be used for its usual purpose, eating, drinking or anointing. One may not prepare it in a way which prevents its being used for its intended purpose, e.g., by spicing oil which was purchased for consumption as a food. One may spice wine, for it still will be used as a drink.

The principle that consecrated produce must be put to the purpose for which produce of its type normally is used derives from Yavneh (Terumot, viii.B.ll :3). Expression of that principle for the specific cases given here appears to be Ushan, as the parallel at Terumot, viii.C.ll: 1 indicates. Note also the consideration of the purpose for which the individual purchased the oil. According to the present rule, this determines whether the oil is deemed an unguent or a food. This parallels the role of intention at i.C.l :3-4.

2: li-P If unconsecrated honey or spices fall into wine in the status of second tithe and increase its value-when the farmer sells the wine in order to bring the proceeds to Jerusalem, the value of the consecrated food is determined according to its percentage in the mixture. If one bakes dough in the status of second tithe, when he sells it, the total value is deemed consecrated. General principle: If an

The problem is to determine what proportion of the money the farmer receives for the spiced wine is consecrated and must be taken to Jerusalem. This is explained in the general principle, attributed at T. 1:18 to the Ushan authority, Y ose. On the basis of this attestation and the dependence of these materials upon i.C.2: lA-H, we are on solid grounds in assigning this to the Ushan stratum.

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unconsecrated ingredient is added, the value of the second tithe is determined by proportion. If no ingredient is added, but only the individual's labor, the total value is ascribed to the second tithe. 2:2 Simeon: They may not anoint in Jerusalem with oil in the status of second tithe. Sages: They may (+ debate).

Simeon and sages dispute what i.C.2: lA-H took for granted, that anointing is a proper mode of consuming oil in the status of second tithe. Simeon presumably wants the tithe to be used only as a food, not as an unguent.

D. Unassigned l: l Produce in the status of second tithe may not be sold, given as a pledge or used as a counterweight. In Jerusalem it may not be traded for other produce in the status of second tithe. Produce in the status of second tithe may be given as a gift.

This states in different terms the rules given at i.B.l :2G and 1:SA-c. Produce in the status of second tithe may be used only for its designated purpose, being brought to and eaten in Jerusalem. Since it is consecrated for this purpose, the farmer may not use it for his own benefit, e.g., by selling or trading it, or using it as a counterweight.

l :2A-F The rules of the preced- These rules apply the principle of ing entry apply as well to tithe of the preceding entry to two further cattle, a consecrated offering com- types of tithes. parable to second tithe (Lev. 27:3233). Priests may do whatever they wish with firstlings, which are not consecrated and which are the personal property of the priests (M. Bekh. 4:1). 1:5D-E If, outside of Jerusalem, an individual unintentionally uses

Only what the farmer purposely purchases with money in the status

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money in the status of second tithe to purchase produce-the transaction is null. If he did this intentionally, he must bring the produce to Jerusalem to be eaten as second tithe. After the destruction-the produce is left to rot.

of second tithe takes on a consecrated status. Parallel in principle to i.C.l :3-4 and, in the following entry, referred to by Judah, this principle appears to derive from Ushan times.

1:6 Same rule as M. l:5D-E, Judah, T. 1:15, cites and qualifies phrased for case of purchase of a this rule. domesticated animal with second tithe funds. 1:7 List of nine items that may not be purchased with second tithe funds. If one purchases these things, he must consume in their stead the same value in produce. General rule: Money in the status of second tithe may be used only for the purchase of things suitable for eating, drinking, or anointing.

The point is the same as in the Yavnean rule, i.B.l:5A--G. Second tithe fund may be used only for the purchase of consumables.

ii. Exchanging Coins for Coins An issue disputed by the Houses is developed in the periods of Yavneh and Usha. This issue concerns whether coins in the status of second tithe are understood individually to be consecrated as that offering or whether the holiness of second tithe is diffused throughout the batch as a whole. This is an important question, for instance, in a case in which the second tithe coins are mixed with other, unconsecrated, coins. If each coin individually is deemed to be second tithe, the householder must recover the lost tithe by identifying exactly those coins that originally were received in payment for second tithe-produce. If the holiness of second tithe is diffused through a batch as a whole, the householder may replace the consecrated coins that were lost simply by picking out of the mixture the correct monetary value (ii.D.2:5, 6). The Houses agree that, outside of Jerusalem, the householder may exchange second tithe-coins for coins of a better metal. This assures the easy transport and marketability of the second tithe-currency. The

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issue for the Houses is whether each coin changed must have as its counterpart a coin of better metal (= Shammaites) or whether we judge matters by the character of the batch as a whole (ii.A.2:8A-C). Following the latter alternative, the Hillelites allow the exchange of silver and copper for silver. This view, that the status of second tithe adheres in the batch as a whole, is normative in the time of Yavneh (ii.B.2:9I-L), providing good evidence that consideration of this issue indeed began in the period before 70. Yet ii.C.2:8D-E presents an Ushan dispute on the specific issue referred to by the Houses, ultimately leaving in doubt the exact legal development of the matter before us. A. Bifore 70 2:7 The House of Shammai: One The Shammaites prohibit the exshould not exchange silver selas in change, since gold coins rarely circuthe status of second tithe for gold late and therefore are not a common dinars. The House of Hillel permit medium of exchange. The Hillelites this. Aqiba: I exchanged silver coins ignore this practical consideration for gold dinars for Gamaliel and and allow the transaction, because in it the status of consecration is Joshua. transferred from a less desirable metal to a better one. The Hillelite view is attested to Yavneh by Aqiba, cited here in support of the Hillelites' position. This provides firm grounds for assigning this matrial to the period before 70. 2:8A-c The issue is the same as at M. 2:7. The Shammaites allow the farmer to exchange a batch composed solely of copper coins for silver selas. The Hillelites allow the exchange even if a portion of the batch to be exchanged already is comprised of silver.

The basic theory is that expressed by the Hillelites in the preceding entry. An exchange is allowed of second tithe-coins of a base metal for coins of a better metal. The Shammaites now agree to this, so long as rare, gold coins are not involved. They simply required that the transaction improve the quality of metal of each second tithe-coin. The Hillelites by contrast hold that the status of second tithe adheres

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to the batch as a whole. Exchanging some silver and some copper coins for silver represents a move to a better metal, and is accordingly permitted. Since it is parallel to the theory of ii.A.2:7 and is carried forward in Yavnean and U shan times (ii.B.2:91-L; ii.C.2:8D-E), we confidently may assign this material to the period before 70. 2:9F-H In Jerusalem the farmer may exchange silver coins in the status of second tithe for copper ones, which are more easily spent. The House of Shammai say: When he exchanges the silver, he must receive only copper coins. The House of Hillel say, he may take a silver coin of small denomination along with the copper.

The positions of the Houses are consistent with their views at M. 2:8A-C. The Hillelites approve the transaction, so long as it results in the farmer's having some coins of baser metal than those he turned in for exchange. Parallel, in principle to the Houses' views atM. 2:7-8 and developed in Y avnean times, ii.B.2:91-L, we are on firm grounds in assigning this dispute to the period before 70.

B. The Time qf 'Yavneh 2:91-L The disputants before the sages, Aqiba and Tarfon accept the Hillelite position of ii.A.2:9A-C, so long as a specific percentage, under dispute here, of the coins that the farmer receives are copper or silver. Shammai: Let him deposit the sela with a merchant and, over a period of time, consume its value.

Yavnean authorities, who agree with the Hillelites, explore a secondary problem. They want the exchange to result in some set advantage to the farmer. Otherwise it is prohibited. Shammai is out of place, set in dispute with Y avneans. His position disagrees with those of both Houses, for he does not permit the use of second tithe coins for anything except the purchase of food. Since this view does not appear elsewhere in these materials, it is impossible to place it in the unfolding of the law. Jacob Neusner - 978-90-47-41637-1 Downloaded from Brill.com02/08/2023 11:54:33AM via Universite degli Studi di Milano

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C. 77ze Time qf Usha 2:8D-E Meir: They do not exchange silver and produce for silver. Sages: They do.

The problem is a variation of that addressed by the Houses at ii.A.2: 8A-C. Like the Shammaites, Meir does not want the silver in the status of second tithe to be exchanged for other silver. Sages follow the view of the Hillelites, who permit the transaction so long as it results in the status of second tithe's adhering in what is, all in all, a more valuable commodity. The particular case is secondary to that disputed by the Houses, such that assignment, on the basis of Meir's participation, to U sha is on relatively firm grounds. 6

D. Unassigned 2:5 If unconsecrated coms and coins designated as second tithe are mixed together~whatever he collects first is deemed consecrated, until he reaches the value of the lost second tithe. If he scoops up the coins all at once, the proper proportion of the mixture is deemed consecrated as second tithe.

The status of second tithe is not localized in the specific coins to which that status originally applied. When those consecrated coins are mixed with unconsecrated ones, the status of the tithe therefore pertains to the whole batch. Coins that will carry the correct value of the status of second tithe may be chosen at the farmer's own will, either by selecting coins one at a time or by setting apart a portion of the mixture. The underlying assumption concerning second tithe is that of the Hillelites and ii.B.2:9I-L.

6 In light of the Y avnean interest in this same issue, it does not appear as though this Ushan replay of a Houses' dispute signals the Ushan origins of that dispute. At the same time, I see no reason why, in this case, an issue apparently setded in Yavnean times is reopened at Usha. The dispute therefore remains enigmatic.

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2:6 If an unconsecrated silver sela is confused with a sela in the status of second tithe, he brings a seta's worth of copper coins and declares the copper exchanged for the original, consecrated sela. He then chooses the finer of the silver coins and exchanges it for the copper. For: they exchange consecrated silver for copper only out of necessity and must immediately exchange it back again.

111.

The problem is the same as in the preceding entry, but the solution now follows the Shammaites, ii.A.2: SA-C. The status of consecration adheres to the specific coin. The farmer therefore cannot simply choose one of the coins to be second tithe. Rather, he deconsecrates the coin-whichever it might beby declaring it exchanged with copper ones. Then he immediately reverses the process and declares one of the silver coins to be second tithe. Participation in this discussion by the Yavnean, Simeon b. Azzai (T. 2:5), attests this item (and probably the preceding one) to early in the unfolding of the law. Continued discussion after Usha, by Eleazar b. Simeon and Rabbi (T. 2:7) indicates however that the issue first addressed by the Houses was still not settled by the end of the Mishnaic period.

B19!ing and Using Second Tithe Produce in Jerusalem

If second tithe produce is brought into Jerusalem, it may not be taken out again from the holy city (iii.C.3:5). Second tithe thus is viewed as analogous to a sacrifice, which, once it is upon the altar, may not be taken down again. Ushan and post-Ushan disputes over refinements of this principle constitute the bulk of this unit (iii.C.3:6A-B, C-F, G-L and 3:9-11). The most important of these concerns the case in which produce from which second tithe has not yet been separated is carried through Jerusalem. Once the offering is separated, need it be returned to the holy city, or may it be redeemed and other produce brought in its stead? While placed in the mouths of the Houses, this issue depends upon, and therefore must be historically subsequent to, the basic Ushan rule upon which this unit rests.

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The unassigned material contains a second important notion of this unit. It states that through a simple act of will the householder designates produce or coins to take on the status of second tithe. That is to say, there is no requirement of a physical act of separation or exchange of produce for coins. Therefore the farmer may leave second tithe-money with a shopkeeper and make a conditional designation, stating that certain produce to be taken from that shop in the future will be second tithe and credited against the coins on deposit. He likewise may designate his friend's produce to take on the status of his second tithe-coins. The exchange in the status of the food and money is effected even though no actual trade of food and coins occurs. Attentive to the powers of intention of the common Israelite and parallel to the notions of sanctification found in the U shan stratum of Tractate Terumot, these materials appear to derive from Ushan times. A. Bifbre 70 3:6C-F While reported in the names of the Houses, this dispute derives from the period of Usha. See iii.C.3:6C-F. 3:6G-L Like the preceding entry, this Houses' dispute, attested by Simeon b. Judah, belongs to the period of Usha or later. See iii.C.3: 6G-L. 3:7 As for a tree a bough of which hangs over the wall ofJerusalem-only that part of the tree that is actually located within the walls of the city is deemed to be in Jerusalem. As for a shed that intersects the walls of JerusalemThe House of Hillel say: As in the case of the tree, only the part of shed located within the walls of Jerusalem is deemed inside the city.

This material is located here because of its topical relevance to the issue of iii.C.3:5 and 6. Yet this discussion is theoretically distinct from that of those other pericopae. They therefore do not serve as tests for the placement of this Houses' dispute in the unfolding of the law. (Cf., T. 2:12, a clearly Ushan construction, which rewrites M. 3:7's dispute in light of the Ushan and

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The House of Shammai say: The shed itself creates a new boundary, such that all of its contained space is deemed to be like Jerusalem itsel£

3:9 3:13

post-Ushan issues found at M.3: 5-6.) In placing this pericope in the period before 70 we thus depend upon attributions alone. Cf., Haas in Neusner, Judaism, p. 297. See iii.D.3:8.

See iii.C.3:9 See iii.C.3: 13

B. 7he Time

if Yavneh

C. 7he Time

if Usha

3:2 Money consecrated as second tithe may not be used to purchase produce in the status of heaveoffering, for the heave-offering may only be eaten by a priest and, should it become unclean, may not be eaten at all. Simeon: Second tithe-money may be used for the purchase of produce in the status of heave-offering.

This material depends upon the Yavnean notion, i.B.l :SA-C (found also at Usha, i.C.2: lA-H), that coins in the status of second tithe may only be used to purchase edibles. M. 3:2 presents an ambiguous case. While the heave-offering is presendy edible by certain individuals, it might become completely inedible. Taking account of what might happen in the future, the anonymous rule does not allow the purchase of the heave-offering. Simeon is concerned only with the present state of the food. It is edible and therefore may be purchased as second tithe. Assigned to an Ushan authority and developing ideas known both at Yavneh and Usha, this dispute is firmly placed in the Ushan stratum.

3:5 Coins in the status of second tithe that are brought into Jerusalem may be brought out again.

The produce is like a consecrated offering. Bringing it into Jerusalem, which is where it must be eaten,

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Produce in the status of second tithe that is brought into Jerusalem may not again be taken out of the city. Simeon b. Gamaliel: Produce, like coins, may be taken out again.

is comparable to placing a sacrificial animal on the altar, such that it may not again be withdrawn. Simeon b. Gamaliel rejects the analogy between second tithe and sacrificial animals. Since the principle that a sacrificial animal may not be removed from the altar is Y avnean (see Neusner, Holy Things, VI, p. 68), we are on strong grounds in assigning this development of that principle to Ushan times. The anonymous rule of this pericope is further developed at iii.C.3:6A-B, C-F and G-L.

3:6A-B Produce that is subject to the separation of tithes and that is brought through Jerusalem-when second tithe is separated from it, that tithe must be brought back to Jerusalem and eaten there. It may not be redeemed.

The issue is whether or not the anonymous rule of iii.C.3:5 applies to that portion of a batch of produce that eventually will be designated second tithe. The point here is that since the produce is already fully subject to the offering, it is as though the offering itself were in Jerusalem. In accordance with M. 3:5, once separated, that offering therefore cannot be redeemed, but must itself be brought back to the holy city and eaten there. This principle clearly is Ushan or later, for it depends upon and expands the Ushan M. 3:5. It is discussed after Ushan times by Simeon b. Judah, iii.C.3:6G-L. who, in the name of an Ushan, Yose, formulates a Houses' dispute on this issue.

3:6C-F If produce is brought through Jerusalem before it is subject to the separation of tithes-

This is a subtle refinement of the preceding entry. If, when the produce is in Jerusalem, it is not yet

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Shammaites: When it becomes sub- subject to tithes, do we treat the ject and second tithe is separated offering which later is separated from it, that tithe must be brought from it as though it had been in back to Jerusalem and eaten there. the holy city, such that it may not It may not be redeemed. Hillelites: be redeemed? The Shammaites say The second tithe need not be that we do. The produce that now brought back to Jerusalem for con- comprises the second tithe was sumption. It may be redeemed. physically in Jerusalem, such that it should not have been brought out of the city (iii.C.3:5). Once the second tithe is separated, it must be brought back to Jerusalem and eaten there. The Hillelites by contrast claim that since, when the produce was in the holy city, it was not yet subject to the removal of second tithe, we cannot treat the second tithe that later is separated as though it had been inJerusalem. It therefore may be redeemed. A refinement of the preceding entry, this item cannot derive from before Ushan times. Note the Hillelites' underlying assumption that agricultural offerings are in no sense contained in produce from which they have not yet been separated. 3:6G-L Simeon b. Judah in the name of Yose says: The Houses did not disagree concerning produce that was not subject to tithes while it was inJerusalem. For that case both Houses take the position assigned to the Hillelites at M. 3:6C-D. Rather, they disputed the case given at iii.C.3:6A-B, in which the produce was subject to tithes while it was in Jerusalem. The Shammaites take the position of

Simeon b. Judah offers a different version of M. 3:6C-F's Houses' dispute, formulating it in terms of the issue of M. 3:6A-B.

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the previous anonymous rule, that second tithe that later is separated may not be redeemed. The Rillelites disagree. 3:9 Produce in the status of sec- While assigned to the Houses, the ond tithe that entered Jerusalem present material depends upon the and was rendered unclean-The Ushan M. 3:5, such that it cannot House of Shammai: It is redeemed derive from before Ushan times. so that clean produce may be pur- The Shammaites hold that that chased. But even that which is re- even once the produce is redeemed, deemed must remain within the holy it retains certain traits of second city and be eaten there (iii.C.3:5). tithe and must be eaten in JeruThe House of Hillel say: The pro- salem. The Hillelites, by contrast, duce must be redeemed and eaten are concerned for the purity of the outside of Jerusalem (= Simeon b. holy city and therefore want the unclean produce to be eaten elseGamaliel, iii.C.3:5). where. Note the continued development of this issue (in the names of the Houses) at Usha and later, by Meir, Judah and Simeon b. Eleazar, T. 2:16. The issue of this pericope is further developed in the following entry. 3:10 Produce purchased in Jerusalem with coins in the status of second tithe that becomes unclean-let it be redeemed. Judah: Like produce purchased with second tithe-funds outside ofJerusalem, it may not be redeemed. It must be buried.

Produce designated second tithe that becomes unclean may be redeemed, M. 3:9. The question is whether or not this applies as well to produce purchased in Jerusalem with second tithe-funds. The anonymous rule states that it does. Judah holds that it does not, for, unlike the produce originally designated second tithe, that which is purchased with second tithe funds never may be redeemed. Developing the preceding entry and assigned to an Ushan authority, this clearly belongs to the U shan stratum.

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3: 11 A deer purchased with money in the status of second tithe that died-bury it with its hide. Simeon: Redeem it. If it was purchased alive, was slaughtered and then became unclean-redeem it. y ose: Bury it. If one purchased it slaughtered, and it subsequently became unclean-like produce purchased with second tithe-money that becomes unclean, it is redeemed.

Ushan authorities continue discussion of the issue introduced at M. 3:10. The specific problem is the circumstances under which the rule for produce applies as well to meat. The point seems to be that a purchase of meat is comparable to a purchase of other foods. If, by contrast, at the time it is purchased, the animal is not yet prepared as food, it is unclear whether or not it should be treated as produce. These cases, accordingly, are under dispute. On the basis of substance and cited authorities we are on firm grounds in assigning this pericope to the Ushan stratum.

3: 12 If one sells wine in jugs intending the jugs only as a loan, those jugs do not take on the status of second tithe. If his intention-to sell the jugs along with the wine or to simply loan themis not known, we judge the case by whether or not the jugs are sealed. Corked jugs take on the status of second tithe; uncorked ones do not.

The point is exactly the same as that found at i.C.l :3, on which basis this pericope is placed in the U shan stratum. This anonymous rule further provides the facts used in the following entry.

3:13 Continuation of M. 3:12If the wine merchant has corked the jug but changes his mind and decides simply to loan it to the buyer-Shammaites: He must pour out the wine and then refill the jug. Hillelites: It is sufficient simply to uncork the jug. Then it is not counted as part of the sale and accordingly does not take on the

The question of what happens if the seller changes his mind is a secondary development of the issue introduced at i.C.l:3 and iii.C.3:12. The participation in this issue of the Ushan Simeon, as well as of Simeon b. the Eleazer, T. 2:18, provides good reason for assigning this material to Usha. The thearies behind the Houses' opinions

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status of second tithe. Simeon: He need simply say to the buyer, "I sell you the wine without the container."

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also reveal typically Ushan concerns. While the Hillelites claim that the physical state of the container is determinative, the Shammaites are concerned with the intentions of the merchant throughout the bottling process. These intentions, they say, cannot be reversed simply by uncorking the jug. All of the merchant's actions, rather, must be informed by his intention to loan, and not sell, that container.

D. Unassigned 2:10 One who has some dependents who are clean and some who are unclean may deposit with a storekeeper a sela in the status of second tithe and declare that whatever the clean dependents eat is second tithe while what unclean ones eat is unconsecrated.

The rule stresses the metaphysical character of sanctification. The farmer may enact a conditional designation of produce to be second tithe, dependent upon a future act. As a result, in the present case, the clean and unclean persons could sit and drink from the same jug of wine, one of them drinking wine in the status of second tithe, the other drinking unconsecrated wine.

3: l A farmer may not give a friend The point is the same as at i.D .l: l, produce in the status of second that produce in the status of sectithe in return for his transporting ond tithe may not be used in a that produce to Jerusalem. But he business transaction, yet may be may offer to share with the friend given as a gift. Found as well in the second tithe which the friend the Ushan stratum of Shebiit, this rule presumably derives from U shan transports to Jerusalem for him. times. 3:3 InJerusalem an individual may transfer the status of second tithe from his coins to a friend's produce. The friend consequently eats his

The farmer may transfer the status of second tithe from money to produce without in fact buying the produce and even though the coins

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produce as second tithe, while the and produce do not change hands. first individual may use the coins All that matters is that the correct for whatever he wishes, since they value in produce will be eaten as no longer are in the status of sec- second tithe, no matter who eats ond tithe. it. Parallel in conception to the preceding entry and expressing the notion of the transfer of holiness found in the U shan stratum of Tractate Terumot, this rule appears to be Ushan. 3:4 If a farmer has unconsecrated produce in Jerusalem and money in the status of second tithe in the provinces, he may declare them exchanged, such that the produce now has the status of second tithe. If the coins are in Jerusalem and the food is in the provinces he may do the same thing, provided that he then brings the food to Jerusalem to eat as second tithe.

As in the preceding entry the point is that the status of second tithe may be transferred from coins to produce even if there is no "purchase."

3:8 Roofs of Temple buildings have the same status as the ground over which they are built. The inner-space of chambers, however, is deemed part of the domain to which it is contiguous. If a chamber opens on to two different domains, one holy and one unsanctified, it is deemed to have the status of the actual ground over which it is built.

This carries forward the exercise of iii.A.3:7, now for the case of Temple property. Sustained discussion of the issue of this pericope in Ushan times (T. 2:13-15) indicates that this material probably derives from late in the development of the law.

IV.

Selling Produce in the Status qf Second Tithe

Produce in the status of second tithe is redeemed at the prevailing market price at the time and place of the redemption (iv.D.4: l, 2, 8A-F). Payment of less or more than the current value will leave the produce

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imperfectly redeemed (iv.D.4:6). If less than the produce's value is paid, a portion of that produce will retain its consecrated status. If more than the produce's value is paid, some of the money received is not in the status of second tithe. In this way, in the Ushan period, the processes of sanctification and desanctification are tied to the human market place. Holy produce is made a commodity, the value of which is determined by and changes with the values of other, secular foods. This is close to the theory of Tractate Terumot, that the quantity of holy produce contained in any batch is determined by the intentions and desires of the householder. So here, the quantity of produce that must be eaten in Jerusalem in conditions of holiness depends ultimately upon the monetary value the Israelite ascribes to the foods that he buys and sells. The secondary issue disputed in the Ushan stratum concerns whether or not the farmer must make an oral declaration indicating that he intends a sale of consecrated produce to comprise the redemption of that food. Yose states that the act of sale is sufficient and that no declaration need be made. Judah holds that the individual's intention must be explicitly indicated, through actions and corresponding words (iv.C. 4:7). Judah thus disagrees with the preceding unit, which does not even require a concrete act of sale. A. Bifore 70

4:8G-I The Houses dispute the amount of second tithe-money the farmer may choose to ignore and leave behind in Jerusalem by not purchasing and eating produce against its value.

The dispute appears here because it is ancillary to iv.D.4:1-6+8A-F, which discuss the value at which second tithe is bought and sold. The underlying theory, that commodities the Israelite does not deem worthy of attention lose their status of consecration, is familiar from the apparently U shan material at Terumot, viii.D.ll :4-8. The present Houses' dispute too presumably derives from Ushan times. The issue does not occur elsewhere in this tractate.

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B. The Time if Yavneh C. The Time if Usha 4:7 Yose: One who redeems produce in the status of second tithe need simply pay for that produce. He need not make a declaration that the purchase is an act of deconsecration. Judah: He must make an explicit declaration. Same dispute concerning a man's informing his wife that she is being divorced.

y ose holds that an action-paying for the produce or handing over a writ of divorce-is sufficient indication of the individual's intention to change the status of the produce or woman. Judah, by contrast, holds that intention must be indicated specifically, both by deed and formal declaration. Only then is it efficacious. The issue of the oral declaration also occurs in the Ushan stratum of Tractate Terumot, providing a sound basis for the placement of this pericope in Ushan times.

D. Unassigned 4: 1 One who carries produce in The value of a consecrated thing the status of second tithe from place is determined on the basis of the to place and wishes to redeem it prevailing market at the time and does so according to the market place of the sale. The principle that price in his current location. If the value added through the farmer's value is higher than in the place labor does not accrue to the secin which he began, still, the increase ond tithe is known from i.C.2: li-P. accrues solely to the second tithe. The U shan origins of that notion, The farmer pays out of his own as well as the discussion of this peripocket the cost of transporting the cope during Ushan times (Joshua b. Qorha, T. 3:la), indicates that produce. M. 4: 1 too derives from the U shan period 4:2 They redeem produce in the M. 4:2 appears to develop the prinstatus of second tithe at the low- ciple set down in the preceding est selling price of the particular entry. While the produce is to be locale, i.e., the rate at which shop- sold for its market price, it is to keepers buy. They do not sell by be priced competitively. This comJacob Neusner - 978-90-47-41637-1 Downloaded from Brill.com02/08/2023 11:54:33AM via Universite degli Studi di Milano

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an estimation of value. If the value petitive price is not determined priis known, the valuation of one buyer vately by the buyer and seller, but is sufficient. If it is not known, three on the basis of the prevailing marbids must be received. ket, just as M. 4: 1 would lead us to expect. Dependent upon M. 4: 1 and attested to U shan times and later by Simeon b. Eleazar, T. 3:1 b, Judah, T. 3:4a, and Judah and Simeon, T. 3:6, it is clear that these rules belong in the U shan stratum. 4:3 If the farmer wishes to redeem his own second tithe with his own money, his bid of one sela has priority over anyone else's bid of one sela. This is because someone who redeems his own produce with his own coins must add a fifth to the value. If the outside bidder offers more money, even if it is not so much as an added fifth, his bid has priority. The produce's owner pays the added fifth even if he had been given the produce as a gift.

A farmer who redeems his own tithe pays an added fifth, Lev. 2 7:31. Still, in determining which bid purchases the produce, we take into account purchase price alone. The highest bidder receives the produce, even if he pays less than the farmer himself would. Only in the case of a tie-bid do we take into account the added fifth the farmer will pay. While the notion of the added fifth is Scriptural, there is no evidence that this formulation of the law is known before U shan times or later, to which it is attested by Eleazar b. Simeon, T.4:2a.

4:4 They avoid paying the added fifth by giving the money to someone else who can redeem the produce for them. The individual who performs the transaction must be able to engage in business of his own right. This disqualifies the farmer's minor children and Canaanite servants.

This carries forward the discussion initiated atM. 4:3. Like that entry it appears to derive from Ushan times, to which it is attested by ]ashua b. Qorha, T. 4:3, and Simeon b. Eliezer, T. 4:7.

4:5 To avoid paying the added fifth the farmer may give the produce

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to a friend as a gift and then declare that the produce is redeemed with the farmer's own coins.

the status of second tithe may be given as a gift, i.D .1 : 1. While there are no firm grounds for placement of the latter rule within the unfolding of the law, on the basis of M. 4:3-4 it appears that this entry belongs in the Ushan stratum.

4:6 If the purchaser took possessiOn of the second tithe but did not pay for it before its value went from one sela to two selas, the purchaser has earned a sela on the increased value of the produce. But that additional sela's worth of produce retains the status of second tithe. If the value of the produce went down from two selas to one sela, only one of the selas paid for the produce is deemed to have the status of second tithe. To avoid confusion, the buyer pays the second sela with a coin already consecrated as second tithe.

The rule depends upon and develops iv.D.4: 1. What happens if the value of the produce changes between the time that the purchaser takes possession and the time that the money is paid? We rule that the quantity of produce deconsecrated depends upon the market value of the produce when payment is actually made, regardless of the agreed upon purchase price. This rule surely is Ushan, for it depends upon the Ushan iv.D.4: 1 and further is attested to that period by Simeon b. Gamaliel and Ishmael b. Yohanan b. Beroqah, T. 4: 14c.

4:8A-F In Jerusalem coins in the status of second tithe are spent at their current market value. If the individual has eaten against some of the coin's value and then moves to a different area where the remainder is worth more or less, he must continue to purchase and eat produce until the new value of the coin has been spent.

The point is the same as at iv.D.4: 1 and 4:6. The value of the holy thing is determined on the basis of market value at the exact time of the sale. Dependent upon and carrying forward ideas developed in the Ushan stratum, this rule apparently derives from Ushan times.

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v. Doubts Whether or Not Produce or Coins are Consecrated

If we have good reason to believe that produce, coins or other objects we find are consecrated, we assume that they are holy and treat them accordingly. So Judah. Yose applies the theory of Tractate Terumot. If there is any cause for doubt, we need not deem the object, money or food to be sanctified. Discussion of this issue occurs solely in Ushan times. A. Bifore 70

B. 7he Time qf Yavneh

C. 7he Time qf Usha 4: 10 One who finds a vessel inscribed with the word "offering"Judah: If it is clay it is deemed unconsecrated, but what it contains is deemed an offering. If it is metal, it is an offering and what it contains is unconsecrated. They said to him: People do not normally put unconsecrated things in sanctified vessels.

The inscription is ambiguous for it may refer to the vessel or its contents. Judah resolves the ambiguity in light of people's normal behavior. Since a clay vessel would not be dedicated to the Temple, the inscription must refer to the contents. In the case of a vessel of high value, however, the inscription may apply to the vessel itsel£ The anonymous reply takes Judah's reasoning to its logical conclusion.

4: 11 Vessels with abbreviated inscriptions are assumed to contain produce in a status relevant to the abbreviation, e.g., "T" for tithe or "H" for heave-offering. Y ose: We always assume that vessels contain unconsecrated produce, even if they are inscribed with the full name of the offering.

The anonymous rule corresponds to Judah's position. Yose rejects the whole notion that, in a case of doubt, we treat produce that we find as though it is consecrated. The attribution to Y ose and the parallel to ideas in the Ushan stratum of Tractate Terumot provide solid grounds for assigning this pericope to Usha. At T. 5:2 Meir joins in the discussion.

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D. Unassigned 4:9 Coins found inJerusalem are deemed unconsecrated, even if they appear to be a collection set aside for a special purpose. This is the case unless a potsherd inscribed with the word "tithe" is found with them. In that case the coins are deemed to be second tithe.

This appears to mediate between the positions of Judah and y ose, v.C.4:10 and ll. In a case in which we can be reasonably certain that something is an offering, it must be treated as such. Otherwise, as in the case of coins simply found inJerusalem, we assume the object is secular. I assume that this, like v.C.4:10 and 11, is Ushan.

4: 12 If one expects to find consecrated coins in one corner, coins he finds in a different corner are deemed secular. If he expects to find a certain amount of money, but finds more, only the expected amount is deemed consecrated. If he finds less than he expected, it all is deemed consecrated.

This is essentially the same principle that informs v.C.4: l 0 and the preceding entry, for it claims that what reasonably can be assumed to be consecrated is so treated. This commonality of principle, along with the participation in this discussion of Rabbi, T. 5:7, provides firm grounds for placement of this unit in the Ushan stratum.

vi. Produce qf a Vinryard in its Fourth Year qf Growth Grapes from a vineyard's fourth year of growth are comparable to produce in the status of second tithe in that they are consecrated and must be brought to Jerusalem and eaten there. This unit touches upon several distinct issues concerning this produce. Since none of these issues is developed in more than one pericope, they do not aid us in detailing the development of the law. Available evidence, however, suggests that these discussions occurred in the U shan period. This applies to a Houses' dispute (vi.A.5:3), which questions whether or not the fourth year grapes are in all respects like produce in the status of second tithe. It also pertains to the unit's unassigned materials, which state that the farmer may redeem the grape clusters before they are harvested (vi.D.5:4, 5). The unharvested grapes have a low market price, such that the farmer will not have to carry a large amount of money to Jerusalem.

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One issue attributed to U shan authorities is familiar from Demai, ii.A.3: 1C~H and Shebiit, ii.A.4:2A~H, I-K and 5:8. It concerns the individual's responsibility to protect someone else from an unwitting transgression. The Shammaites' claim, that a person is so responsible, underlies all of Tractate Demai's rules as well as a good portion of M. Shebiit. Ushans here question how this responsibility is to be extended to the owner of a vineyard in its fourth year of growth. How he is to prevent passers-by from taking and eating the produce is disputed at vi.C.5:l. A. Bifore 70 5:3 The produce of a vineyard in its fourth year of growth-The House of Shammai say: The added fifth (Lev. 27:31) and law of removal (Dt. 26:12~15) do not apply. Single grapes and defective clusters must be left for the poor (Lev. 19: 10). The House of Hillel say: The laws of the added fifth and removal do apply. The laws of single grapes and defective clusters do not apply.

B. The Time

if Yavneh

C. The Time

if Usha

5:1 Vineyards in their third or fourth years of growth are marked off so that passers-by will not pick the produce and eat it as though it were unconsecrated. Simeon b. Gamaliel: "They do this only in the Sabbatical year, when produce growing in the field is legally avail-

The Hillelites hold that produce from the fourth year of a vineyard's growth is comparable to produce in the status of second tithe. The Shammaites disagree. Each of the restrictions referred to here is Scriptural, and the only other reference to the issue of this pericope is at T. 5:17, where Rabbi and Simeon b. Gamaliel dispute the meaning of the position of the House of Shammai. Since this Houses' dispute is attested only in Ushan times, it seems unlikely that it dates back to the historical Houses.

Produce from a vineyard in its first three years of growth is forbidden for use, Lev. 19:23~24, while that of the fourth year is consecrated and must be eaten in Jerusalem, Lev. 29:25. Simeon b. Gamaliel proposes a precaution that assures that even a passer-by who ignores all

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able for public use. Conscientious warnings and steals and eats grapes people set aside coins to serve to from the vineyard will not have deconsecrate produce of the fourth transgressed. Assignment to Usha year that a passer-by might pick is on the basis of the attribution. and eat." 5:2 Grapes from a vineyard in its The anonymous rule takes seriously fourth year of growth were allowed Dt. 14: 14-25's rule for the redempto be redeemed only if they grew tion of second tithe and applies it more than a day's journey from to the case of the produce of a Jerusalem. When produce became vineyard's fourth year. Dt. states abundant, they ordained that all that produce may be redeemed if grapes of all fourth year vineyards God's chosen place, i.e., Jerusacould be redeemed. Yose: The rule lem, is too far away for the farmer was changed when the Temple was to carry it. Once produce became destroyed. When it is rebuilt it will abundant, even a day's journey revert to its original formulation. would have been impossible. y ose gives a different reason for the change in rule. Once the Temple was destroyed, consecrated produce could not be eaten in the city. Under this circumstance, all farmers were allowed to redeem their fourth-year-grapes. Placement in the U shan stratum depends upon the attribution to y ose and the partiCipation in this discussion of Simeon b. Gamaliel and Simeon, T.5:14.

D. Unassigned 5:4 To redeem produce from a This procedure permits the farmer planting's fourth year of growth to avoid investing his labor in prothat is as yet unharvested, he sets a duce the value of which he will basket of produce in front of three have to consume in Jerusalem. Inpotential buyers and says, "How stead the individual has someone many such baskets are you willing else harvest his field, such that he to redeem for a seta, on condition may bring to Jerusalem only the that you harvest the produce." small amount of money he received

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for the unharvested crop. The notion that it is permitted to sell the produce cheaply, before the harvest, is assigned to the House of Hillel, T. 5:18-20. The basic notion of this pericope therefore may derive from the period before 70. The claim that three bids are to be received, however, represents an idea known, it seems, only in Ushan times, iv.D.4:2. 5:5 Continuation of M. 5:4---During the Sabbatical Year one may not deduct from the value of a fourth year-crop the cost of harvesting. In other years, if the fourth year-crop is from an ownerless field, it is redeemed at the cost of harvesting alone. One who redeems his own fourth year-crop pays the added fifth.

In the Sabbatical Year, harvesting is prohibited. In that year, the crop of a field in its fourth year of growth therefore has the same value as all other unharvested produce, and it must be sold at that price. An ownerless crop can be taken by anyone and therefore has no market value. Its worth is only what it costs to harvest it. That is the value at which it is redeemed. The final rule is familiar from iv.D.4:3, which repeats Lev. 27:31. Like the rest of this construction, there are no grounds for placing it within the logical unfolding of the law.

vii. The Law qf Removal

The bulk of the unit presents an exegesis of the confession that Dt. 26: 13-15 states is recited by the householder when he distributes to their proper recipients all of the agricultural offerings he has separated. This exegesis is for the most part independent of specific laws found in the Mishnah, such that there are no grounds for locating it in a specific historical period. Only one rule of this unit is finnly placed within the unfolding of the law. This concerns the oral designation by which the householder may distribute to their proper recipients agricultural gifts that are out of his physical reach (vii.B.5:9). Such a declaration,

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which Yavneans hold is used in special circumstances, in Ushan times becomes a regular aspect of the separation of agricultural offerings. A. Bifbre 70

5:6H-j As for a cooked dish containing produce in a consecrated status-The House of Shammai say: It is as though it already is removed.

5:7

The principle under dispute here is unclear, for nowhere else in the Mishnah is cooking held to destroy consecrated produce or to reduce its status as an agricultural offering. Since its principle is unclear, I see no way of determining the place of this dispute in the unfolding of this tractate's law.

See vii.D.5:7.

5:15 Yohanan the High Priest did Yohanan's abolishing of the eonaway with the confession concern- fession is unknown to the rest of ing the removal, dismissed those this unit, which assumes that it will who, in the Temple, sang the song be said. I see no way of authentiof awakening and those who stunned eating the attribution of this colthe sacrificial animals. Until his day lection of ordinances to the period work was allowed on the interme- before 70. diate days of Passover and Sukkot. In his time no one had to ask which agricultural gifts had been separated from doubtfully tithed produce.

B. 77ze Time qf Yavneh 5:8 Judah reports: At first they would notify people that the time of removal is approaching, so that they should quickly remove agricultural offerings from all produce, even that which is not yet subject to those gifts. Later Aqiba taught

The notion that what is not yet subject to tithes stands completely outside of the system of agricultural restrictions is a commonplace in this division as a whole. There is no way to test the assignment to Aqiba of this particular expression.

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that produce that is not yet subject to tithes is exempt from the law of removal. 5:9 One whose produce is unavail- The notion that an oral designation able to him at the time of removal is used in the designation and transmakes an oral designation assigning fer of agricultural offerings is known the agricultural gifts to their proper in Ushan times, iv.C.4:7, and at recipients. Gamaliel andJoshua were T erumot, i.C.3:5. This pericope pertraveling on a ship and did this. haps represents an earlier stage in the consideration of the oral designation, in which time the designation was allowed in situations in which the householder could not physically separate the offering.

C. 7he Time qf Usha 5:6A-G The removal is carried out on the last day of Passover in the fourth and seventh years of the Sabbatical cycle. Heave-offering, heave-offering of the tithe, first tithe and poorman's tithe are given to their proper recipients, priest, Levite and poor person. Second tithe and first fruits are destroyed, since there is no time to take them to Jerusalem, where they properly are eaten. Simeon: First fruits are given to the priests, even outside of Jerusalem, just like heave-offering.

The pericope repeats the substance of Dt. 26:12, that every third year agricultural tithes are to be given to their proper recipients. Only Simeon's minor dispute leads us to assign this construction to Ushan times. The basic concept however might have been derived any time a Mishnaic master chose to phrase Scripture's rule in terms of the Mishnah's distinctive system of tithes.

5: 14 Dt. 26: 15 states: As you vowed to our fathers, to give them a land flowing with milk and honey. Aliens or freed slaves, who do not have a portion of the land, may not recite the confession. Meir: Priests and Levites

This is placed in the Ushan stratum on the basis of the attributions alone. While it appears as the conclusion of the extended exegesis at vii.D.5:11N-0, 12, 13, it is substantively and logically distinct from

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may not recite, for they did not those other units. It therefore does acquire a portion of the land. Yose: not aid in placing those pericopae They may recite, for they have the within the unfolding of the law. Levitical cities.

D. Unassigned 5:7 After the destruction of the This dispute assumes the Houses Temple-The House of Shammai to be active after the destruction say: At the time of removal, pro- of the Temple. The Shammaites, duce in the status of second tithe like Yose, vi.C.5:2, take seriously is redeemed. The House of Hillel Dt.l4:24-25's statement that a say: It is all the same whether the farmer who cannot carry second second tithe is removed in the form tithe to Jerusalem should redeem of food or coins. it. The Hillelites recognize that redeeming the produce does not solve the problem Scripture addressed. They therefore do not obligate the farmer to redeem the produce. Parallel to vi.C.5:2, this dispute presumably is the creation of the Ushan period. It self-evidendy does not derive from before 70. 5: 10 On the day of removal the farmers recite the confession, Dt. 26: 13-15: I removed all sanctified produce from my house I gave it to the Levite, and I also gave it to the stranger, the orphan and the widow, out qf my house. These references to those who receive produce at the time of removal indicate that all of the agricultural gifts known to the Mishnah are subject to removal.

This shows each of the Mishnah's tithes to be referred to by Scripture. Since the complete set of agricultural offerings discussed by the Mishnah was known by the beginning of the Mishnaic period, this exegesis may have come at any point in the unfolding of the Mishnah's law.

5: llN-0 I have carried out the law according to all the precepts you commanded me. This means that if he separated second tithe before

This depends upon Terumot, i.D.3: 6-7's description of the correct order of the separation of agricultural gifts. Since that unit is inde-

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first tithe, he may not recite the confession.

pendent of all other legal statements in the tractate, it is impossible to place it or this entry within the unfolding of the law.

5: llP-S I did not transgress your precepts. This means I did not transgress the restrictions upon the separation of heave-offering found atM. Ter. l: 5. I did not forget mrything means I did not forget to praise you.

Dependent upon Terumot, i.B.l :5, the present exegesis may derive from Yavneh or Usha.

5: 12 I did not eat qf it while in mourning. Nor did I separate unclean produce from it. If he did either of these things he may not recite the confession. I did not give atry qf its value for the dead-to buy a coffin or shrouds-and I did not give it-to other mourners. I obeyed the Lord-I brought it to the Sanctuary. I did all you commanded me--l was happy and made others happy with the produce.

These rules derive from Scripture and are not discussed elsewhere in the Mishnah. It therefore is impossible to place this exegesis within the unfolding of the Mishnah's law.

5: 13 Homoletical interpretation of It is impossible to place this exethe end ofthe confession, Dt. 26:15: gesis within the development of the We did what you required qf us, God, Mishnah's law. now you .foljill the promises you made.

III.

CONCLUSION

The tractate explains how a status of holiness is transferred to and from objects in the secular world so as ultimately to be disposed of in Jerusalem, the locus of all holiness. The point that the tractate makes about these processes of sanctification and desanctification is that they depend upon the everyday workings of the Israelite economic system. The factors of supply and demand determine the value consecrated produce has at any given time and place. Normal procedures used in

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all sales establish who has purchased-and therefore desconsecratedproduce in the sanctified status of second tithe. These same procedures apply in Jerusalem to the purchase of produce to be eaten in conditions of holiness. The view of the tractate thus is that the processes of sanctification are under Israelite control. These processes correspond to the workings of the Israelite community's own, secular, economic system. Holiness is not conceived as an awful tremendum, the power of which transcends the control of the common Israelite. While, as we have seen, that which is holy is set apart and special, still, as Tractate Maaser Sheni shows, it comes into existence and is maintained as an ordinary facet of Israelite economic life. Holiness functions within the Israelite world like all other commodities produced upon the land of Israel, traded in the Israelite marketplace and eaten on the Israelite table. In this regard, in the materials before us, the Mishnah's authors ask us to view secular economic processes from the perspective of the holy, as aspects of an economy of the sacred flowing between God and the people of Israel. Only in one respect does holiness differ from the other market-goods to which Tractate Maaser Sheni finds it comparable. The difference is the requirement that, in trading or selling that which is holy, the Israelite recognize that he is engaged in a sacred act. He does this by formulating the intention to deconsecrate one object and to impart a status of sanctification to another. This requirement, familiar from Tractates Terumot and Maaserot, serves to highlight the particular perspective that the Division of Agriculture brings to its description of the source and nature of holiness in the Israelite world. The possibility of sanctification in the world ultimately depends upon the presence of God, looking over and sanctifying Israelite life. The deepest message of the Mishnah, however, is that in doing this, the divine will does not act of its own initiative or because of its own, personal, desires. God acts, rather, in response to the Israelite's own, human, determination to bring holiness into the world. For Tractate Maaser Sheni, like the other tithing tractates in this division, God is profoundly passive. Only through the imposition of the Israelite's will is holiness brought into the world, properly maintained and, finally, disposed of in proper conditions of sanctity.

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CHAPTER NINE

THE DEVELOPMENT OF THE TRACTATES: HALLAH

1.

INTRODUCTION

At Num. 15: 17-21 God commands that once Israelites are living in the land of Israel, they must separate from dough that they prepare an offering to the Lord. The Mishnah's interest in this agricultural gift parallels its concern in Tractate Maaserot. The primary question concerns the conditions under which dough is subject to the separation of dough offering. The answers the tractate proposes likewise are familiar from materials we already have seen in the Division of Agriculture. Y avneans propose that liability to dough offering depends solely upon the class of grain from which the dough was made. So long as the dough is made from grain normally subject to leavening, dough offering must be separated from it. While not rejecting the Yavnean idea, Ushans bring to the law the perspective that marks their materials throughout the division. They hold that in cases of ambiguity and doubt, the Israelite's own perceptions of the character of the dough determines whether or not it is subject to the offering. Specific legal concepts found in this tractate undergo no identifiable intellectual development. The vast majority of the tractate's rules derives from Yavnean times, and Ushans show no interest in the implications of the particular questions raised by the earlier generation. My depiction of the history of this tractate therefore depends upon the fact that the ideas presented by each generation of authorities correspond with the perspectives of Yavnean and Ushans elsewhere in this division. Before we turn to the specifics of these laws, however, let us bring to mind the Scriptural passage upon which the tractate rests. The Lord said to Moses, "Say to the people of Israel, when you come into the land to which I bring you and when you eat of the food of the land, you shall present an offering to the Lord. Of the first of your coarse meal you shall present a cake as an offering; as an offering from the threshing floor, so shall you present it. Of the first of your coarse meal you shall give to the Lord an offering throughout your generations." (Num. 15: 17-21)

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A Hallah bifore 70 The tractate's one dispute attributed to the Houses cannot be proven to derive from the period before 70 and, indeed, shows evidence of being a late creation (i.A.1 :6A-F). The issue concerns whether or not the batter used in making certain types of dumplings is considered dough, such that it is subject to dough offering. The dispute assumes the Yavnean or post-Y avnean notion that all grains prepared like breaddough are subject to dough offering, regardless of the purpose to which that dough ultimately will be put (see i.D.1 :5, 7, and 6G-I). 1 Citation and explanation of the Houses' position by the late Ushan, Ishmael b. Y ose, T. Hal. 1: 1-2, lends further weight to the contention that the dispute is a late creation. This being the case, there is no evidence that work on the topic of dough offering began before Y avnean times. B. Hallah in the Time qf Yavneh Y avneans are concerned with the concrete conditions under which dough becomes subject to the separation of dough offering. Their central idea is that this depends upon the physical character of the dough, leavened or not. As elsewhere, Yavneans here leave no room for consideration of the intentions and perceptions of the individual Israelite. They thus state that dough offering is separated from any dough made from those types of grain that can be leavened (i.D.1: 1). Liability to dough offering is activated at the point at which the grain is made into dough. The dough remains subject to the offering even if it ultimately is used for some purpose other than the baking of bread (i.D.1 :5, 7). Likewise, dough is subject to dough offering even if it is not in the class of produce that is subject to other agricultural tithes or if it actually has the status of a different agricultural gift (i.B.l :3). All that matters to Y avneans is the physical fact that grain has been made into dough. They only exempt from dough offering small quantities of dough (ii.B.2:3, ii.D.2:6), for these normally are not made into bread at all.

1 See Havivi, in Neusner, Judaism, p. 299, who writes: "[A]t the heart of the dispute lies the question of the role of human intention as made manifest by action. In this specific case, what is discussed is how the preparation of dough comes into playas a factor in determining liability to or exemption from [dough] offering. Since the philosophical question of intention and action is taken up at Yavneh and thoroughly explored only at Usha, it seems likely that the Houses' dispute is pseudepigraphic, deriving from the post-70 era."

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Unlike later Ushan legislation, which holds that such exemption depends upon an Israelite's perception that the produce is insignificant (see, e.g., Terumot, viii.D.ll :4-8), the Yavnean law holds that this applies without regard to the Israelite baker's purpose or sense of the usefulness of the particular batch of dough.

C. Hallah in the Time qf Usha The few apparently Ushan rules found here repeat ideas familiar from other tractates in this division. They indicate that, at each point in the designation and separation of dough offering, the effects of the Israelite's actions are judged in light of the intentions and perceptions with which he carried out those actions. This is stated in general terms, i.D.l :9, by the rule that, since dough offering is designated for the exclusive use of the priest, its separation and handling are subject to the rules that apply to heave-offering. Other rules here make the same point. In cases of ambiguity, for instance, whether or not dough is subject to the separation of dough offering depends upon the perceptions of the Israelite who owns the dough. Only what the Israelite deems edible is subject (i.D.l :8). In the same way, dough made from a mixture of leavened and non-leavened grains is subject only if it tastes like dough made from grains that normally are subject to the offering (iii.D.3:7, 10). 2 The concern is not the actual edibility of the dough or the fact that it contains types of grains that, according to Yavneans, are subject. According to Ushans, rather, liability to dough offering, like liability to the other agricultural gifts, occurs only in response to the perceptions of common Israelites. As in Tractate Demai, Ushans take up the distinction between those who observe the laws of cultic cleanness and those who do not. Normally, agricultural gifts may be given only to priests known to eat their foods in proper conditions of cleanness. Ushans rule that this does not apply to offerings separated from produce that might not have been subject to those particular gifts in the first place (iv.C.4:9). Since these offerings might not have a sanctified status, Ushans are not concerned that they be consumed by priests who are not careful to eat food under conditions of cultic purity.

2

See Chapter Six, note 5.

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II.

THE HISTORY OF TRACTATE HALLAH

i. VVhat Dough Is Subject to Dough Offering? The main work of defining the conditions under which dough is subject to the separation of dough offering takes place in Yavnean times. First, Y avneans determine that only grains that may be leavened produce dough subject to the offering (i.D.l: 1). This idea is developed in minor ways in post-Yavnean times. Ushans hold that such types of dough are considered bread in all other legal contexts as well (i.C.l :2). That is hardly a major contribution. An important point is found in the anonymous materials. If the grain is treated like dough at any point in its processing, the final product is subject to dough offering, even if it is not bread (i.D.l :5). As is the case with other agricultural offerings, the process by which the grain becomes subject to dough offering is not reversible. Once it becomes subject, it is not rendered exempt by the actions of a householder who decides not to make dough. Second, Y avneans state that all dough from grains that are leavened is subject to dough offering. This is the case even if the grain already is in the status of a different agricultural offering or if, because it is abandoned by its owner, it stands outside of the system of agricultural laws as a whole (i.B.l :3). As in the first Yavnean idea, the point here is that the householder's actions in making dough are determinative. The separation of dough offering supersedes all other agricultural requirements. Finally, Yavneans apply the considerations just enumerated to the case in which grain is brought from outside of the land into the land of Israel (i.B.2:l). Since the dough is produced within the land, it is subject to the separation of dough offering. This is so even though the grain itself is not subject to other agricultural tithes. Yavneans dispute the rule for the case in which grain grown in the land is made into dough outside of the land of Israel. The issue concerns whether or not we take into account the fact that the dough is subject to other tithes, such that we might declare it subject to dough offering as well. Ushans develop this concern in a secondary manner, indicating what is assumed throughout this division, that only produce grown within the land of Israel is subject to heave-offering and tithes (i.C.2:2).

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A. Bifore 70 1:6A~F The Shammaites declare m'ysh dumplings exempt from the separation of dough offering but deem hryth-dumplings liable. The Hillelites hold the opposite position.

Since the considerations that explain the Houses' views are unclear, it is impossible to establish on substantive grounds whether or not this dispute might derive from early in the development of the law. The fact that the late Ushan, Ishmael b. Yose, T. 1:1~2, is involved in explaining the Houses' views provides evidence that the dispute is a late creation. 3 If the dispute derives from pre-Yavnean times, it is unclear why it should attract no comment for approximately one hundred years.

B. The Time qf Yavneh 1:3 Dough made from grain that was in the status of an agricultural offering, dedicated to the Temple, abandoned or that had not reached a third of its growth is subject to dough offering. Eliezer: Dough made from grain that had not reached a third of its growth is not subject.

The items described here are exempt from tithes, for they already have the status of an offering, have not been brought into the system of tithes, or are not yet deemed food. Liability to dough offering is unaffected by these facts. Eliezer disagrees concerning immature grain. It is not deemed a food for purposes of the tithing system. Dough made from it likewise should not be deemed a food and should not be subject to dough offering. 4

3 Ishmael states that at issue is the order in which the flour and water are added in the creation of each type of dumpling. Ishmael thus sees the issue as comparable to that of i.D.l:4, that is, whether or not the dumpling has been made in a manner in which bread normally is prepared. Ishmael's view accounts for Havivi's interpretation of the dispute, cited above in note l. 4 I assume that this is Eliezer b. Hyrcanus, since, as at Terumot, iv.B.8: l-3, and elsewhere in this division, he takes account only of the concrete fact of the matter, that the grain is not a food, and not the extenuating circumstance, that the individual went ahead and made bread out of it anyway.

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2: 1 Grain that is brought into the land of Israel is subject to dough offering. If it is removed from the land-Eliezer declares it still to be subject; Aqiba deems it exempt.

The issue is the conditions under which grain is deemed to be "of the land of Israel," such that it is subject to the agricultural restrictions. Eliezer concentrates upon where the grain is grown. Aqiba by contrast holds that all depends upon where processing occurs. The question of what dough is subject to dough offering is familiar from the preceding Y avnean discussion. This particular issue receives minor expansion at Usha, i.C.2:2.

C. The Time if Usha

1:2 Five types of grain, listed at This Ushan expansion of i.D.l: 1 i.D.l:l, are deemed bread as re- supports assignment ofthat rule to gards other aspects of the law as Y avneh. well. Meir: One who vows to abstain from eating bread abstains from these (see M. Ned. 7:2). 2:2 Produce that grows in the hold of a ship in earth that was brought from outside of the land of Israel to the land is subject to tithes and the restrictions of the seventh year. Judah: This is the case only if, at the time the produce grows, the ship actually is touching the shore of the land of Israel.

This develops the point of i.B.2:1, considering the case of other agricultural tithes and restrictions. Unlike the case of dough offering, in which liability might be determined by where the dough is made, the applicability of other restrictions depends solely upon where the produce is grown. Judah requires that the produce grow not only in the territorial waters of the land, but right up against it, as though the ship were part of the holy country.

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D. Unassigned 1: 1 Loaves of bread made from wheat, barley, spelt, oats and rye are subject to the separation of dough offering and to other rules that apply to grains.

Grains that can be leavened produce dough subject to dough offering.5 This is attested to Yavnean times by Yohanan b. Nuri, T. 1:1. It is assumed and developed at Usha by Meir, i.C.1 :2. See also i.B.1:3.

1:4 Dough from species of produce that do not leaven and dough prepared in manners other than those in which bread normally is made are exempt from dough offering.

This continues the preceding exercise of definition. It therefore appears to be Y avnean.

1:5 Continuation of M. 1:4-If the dough is prepared like bread dough at any point in its processing, it is subject to dough offering, no matter into what it ultimately is made.

The dough becomes subject as soon as it is prepared as bread dough. Once liability takes effect, it does not matter what takes place subsequendy or what had happened previously. It remains subject. Exploring an ambiguity in the Y avnean definitions, this item too appears to derive from Y avneh, to which it is attested by i.D.l :6G-I, below.

1:6G-I Loaves of thank-offering and wafers of a Nazarite, both of which go to the priest, are exempt from dough offering if an individual prepares them for his own use. If they are made to sell, they are subject.

This parallels the Y avnean discussion at i.B.1 :3, and is attested to Yavneh by Ilai. T. 1:6, who cites Joshua, Eliezer and Eleazar b. Azariah. If the loaves are anyway consecrated for the priest, there is no sense in separating dough offering. If the wafers, by contrast, are not

5 In explaining this list, Havivi, p. 178, note 12, cites H. E. Jacob, Six Thousand Years if Bread (New York, 1944), who states that historically only six grains have been used in bread making. Excluding maize, the Mishnah's list is identical to Jacob's.

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consecrated for the priest until some time after they have been made (e.g., when they are sold), then, having once become subject to dough offering, they remain so, just as i.D.l :5 has told us. 1:7 A baker who made dough for use as leaven to distribute to customers must separate dough offering.

This repeats the principle of M. 1:5 for a concrete case. The fact that the baker will not make bread is of no account. Since he has made a bread dough, he must separate dough offering.

1:8 Dogs-dough that shepherds will eat is deemed a food for humans as regards all matters of law. If they will not eat it, it is not deemed a food, except that it is subject to uncleanness (see M. Ter. 8:6).

What is or is not to be deemed a food is determined by people's perception of it to be edible or not edible (= Terumot, viii.D.ll :5-8, all Ushan). This common Ushan notion is attested to Usha by Judah, T.l:7.

l :9 The rules that apply to the separation and handling of heaveoffering apply to dough offering as well.

Since both offerings go to the priest, many of the same rules apply to each. The present list contains items known in M. Ter. to derive from Yavnean and Ushan times.

ii. 7he Separation if Dough Offering Of the unit's two central points, one is familiar from the tractate's preceding materials. Whether or not grain produces dough that is subject to dough offering depends solely upon that grain's ownership at the time the dough is made. If, when the dough is made, the grain is owned by an Israelite, that dough is subject. This is the case whether or not the grain was previously owned, or even grown, by a gentile (ii.B.3:6). The second issue is how we handle grain that is unclean, such that the offering separated from it may not be eaten by the priest. A Y avnean rule suggests processing the grain in quantities of less than a qab, which

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are not subject to the offering at all (ii.B.2:3; see ii.C.2:4, ii.D.2:7). Aqiba rejects this notion, not wishing the individual to avoid the responsibility to separate dough offering (ii.B.2:3). At Usha, Eliezer offers a different solution, rejected by anonymous sages. As in Tractate Terumot, he holds that the householder may separate an agricultural offering from unclean produce on behalf of clean produce, since, in doing so, the individual simply intends to give the priest produce he may eat (ii.C.2:8). Eliezer also responds to the rule that less than a qab of dough is exempt from dough offering (ii.C.2:4). He states that if the householder should treat these small quantities as a single batch, they are in all events subject to the offering. A. Bifore 70

B. The Time if Yavneh 2:3 A naked woman may cut off a portion of her dough to be dough offering, for she can cover herself. A man may not. If the grain is unclean, he should prepare dough in portions of less than a qab. Aqiba: Dough offering may be separated from unclean dough

Aqiba does not want the dough made in small portions, since these would be exempt from the separation of dough offering all together. This issue is continued by Eliezer, ii.C.2:4.

2:5 Joshua: One who sets aside dough offering while it is still in the form of flour has done nothing. Both that flour and the batch it came from still are subject.

The point already has been made in i.B. Only dough is subject to dough offering. This notion is firmly assigned to Yavnean times.

3:6 If a man became a proselyte, dough in his possession that already is prepared remains exempt from dough offering. Dough that is not completely prepared will become subject upon the completion of its preparation. Aqiba: Processing is deemed complete only at the point at which the dough forms a crust in the oven.

This same theory is exemplified several times at ii.D.3:2-5. Whether or not dough will be subject to the offering depends upon its ownership at the exact point its processing is completed. Its previous status, or what might happen to it afterwards, are of no weight. This is placed in the Y avnean stratum on the basis of Aqiba's comment. Jacob Neusner - 978-90-47-41637-1 Downloaded from Brill.com02/08/2023 11:54:33AM via Universite degli Studi di Milano

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C. 7he Time qf Usha 2:4 Dough prepared in portions Eliezer holds that what counts is not of only one qab is exempt, unless the loaves' being physically attached, the portions wholly adhere one to but, rather, the person's intention another. Eliezer: If they are placed in treating them as a single batch, in a basket, they join together and indicated by the fact that he places become subject to dough offering. them together in the basket. 2:8 Eliezer: Dough offering may Eliezer's view is the same as what be separated from clean dough is assigned to him at Terumot, i.C.2: 1. on behalf of unclean dough. Sages forbid.

D. Unassigned 2:6 Five quarter qabs of dough are subject to dough offering. Less than this is not subject.

This basic rule is assumed by ii.B.2:3 and iii.B.4:4, providing firm grounds for assigning it to Yavneh. Note that it occurs at M. Ed. 1:2 in the name of the Ushan, Yose, who disputes this issue with the Houses (!).

2:7 Dough offering separated from dough to be used for one's personal consumption should comprise one-twenty-fourth of the batch. If it is dough for the market, one-fortyeighth suffices. This same amount is sufficient for unclean dough. If one purposely rendered the dough unclean, he must separate onetwenty-fourth, just as from clean dough.

The basic issue of how much produce is to be separated as an offering is known before 70 (see Terumot, ii.A.4:3). This provides some evidence that the present rule might be early. Specific reference to the householder's intention in rendering the dough unclean is, however, a sign of the late development (see also Terumot, iii.D.5:9). Since there are no other references in M. Hal. to the figures given here, it is impossible firmly to place these rules in the unfolding of the law.

3: 1 They may snack on wheatdough without separating dough offering, until it has been rolled

The issue is at what point in its processing the flour and water are deemed dough. Aqiba, ii.B.3:6,

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out. With barley dough, they may snack until it is kneaded into lumps.

attests and rejects the specifics given here.

3:2 If her dough became mixed with heave-offering before it was rolled out, it is not subject to doughoffering. If after it was rolled out, it is subject.

That which has the status of heaveoffering is not subject to dough offering, since it in all events goes to the priest. If it already was dough and subject to the offering when the mixture occurred, however, dough offering still must be separated. Like the preceding rule, this one disagrees with Aqiba concerning when the processing of dough is deemed completed.

3:3 Same point as M. 3:2 made for cases in which dough in various stages of processing is dedicated to the Temple and then redeemed.

The theory again is that of ii.B.3:6, such that this should be Y avnean.

3:4 Theory of M. 3:3 repeated for case of produce normally subject to tithes that is dedicated to the Temple. The produce becomes subject unless, at the point at which liability normally would be incurred, it is actually owned by the Temple.

This must be dated to the Yavnean stratum, for it shares the theory of M. 3:3.

3:5 Dough an Israelite prepares for a gentile is exempt from dough offering. If the gentile gave the Israelite the dough as a gift, it is exempt or subject according to the rule given at ii.B.3:6.

If at the point at which the dough would have become subject it was owned by the gentile, it never becomes subject. This is the same point made in the preceding entries.

iii. Mixtures We know from the preceding unit that quantities of less than a qab of dough are not subject to the separation of dough offering. Yavneans here state that, should several small quantities of the same kind of

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dough, owned by a single individual, come into contact, they join together to comprise the quantity from which the offering must be separated (iii.B.4: 1). Yavneans further address a point of ambiguity deriving from this rule (iii.B.4:4, 5). If the two quantities of dough are from different years of the Sabbatical cycle, an offering may not be separated from one on behalf of the other (Terumot, i.B.1 :5). Ishmael, Aqiba and anonymous authorities therefore dispute whether or not dough offering may be separated. The unit's assigned materials provide several secondary and undeveloped rules concerning mixtures. Of note are iii.D.3:7, which states that the status of a mixture of exempt and subject grain is determined on the basis of taste (see Terumot, vii.C), and iii.D.4:6, which states that, in cases of doubt, the restriction which normally prohibits the separation of clean dough as dough offering for unclean dough does not apply (cf., Eliezer, ii.C.2:8). A. Btfore 70 B. 7he Time qf Yavneh

4: 1 Two individual qabs of dough To be subject to dough offering owned by two different women, the requisite quantity of dough must which touched one another, remain be in one batch, owned by a single exempt from dough offering. If they person and must all be of the same belonged to the same person, they kind of flour. This is assigned to become subject if they are of the Yavneh on the basis of the consame kind of flour. tinuation of the pericope, which follows. 4:2 What types comprise a single kind? Wheat and spelt, barley and wheat. Yohanan b. Nuri: Any of the five kinds (referred to at i.B.l: 1) join together.

Since only the five kinds are subject to dough offering in the first place, Yohanan rejects the whole issue raised by M. 4: 1. Assignment to this stratum is on the basis of the attribution. It is supported by further discussion of a comparable issue in the entry that follows.

4:4 A qab of this year's dough adheres to a qab of last year's dough-

We know from Terumot, i.B.l:5, that an offering may not be separated

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Ishmael: Take dough offering from the point of junction. Sages: Dough offering should not be separated. Aqiba: One may validly separate dough offering from only a qab of dough. Sages: One may not.

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from produce of one year on behalf of produce of a different year. The two qabs of dough therefore do not join together. Ishmael and Aqiba make a single point. The dough offering may be separated from the individual qabs, even though they comprise less than the minimum volume of dough established by ii.B.2:3 and ii.D.2:6. Sages disagree. Since we do not have the minimum quantity, dough offering may not be separated.

4:5 Positions of Aqiba and sages exemplified in a further case.

C. The Time qf Usha D. Unassigned 3:7 Dough prepared from wheatflour and rice-flour~if it has the taste of grain, it is subject to the separation of dough offering.

Part of the mixture is subject to dough offering; part is exempt. Its overall character is determined by taste, a notion familiar from Terumot, vii.C. Expressing a theory current in U shan times, this anonymous rule too presumably derives from Usha.

3:8-9 A mixture of dough from which dough offering has been taken and dough from which dough offering has not been taken~they should separate dough offering from a different, fully subject batch.

The point is familiar from Terumot, i.B.l :5. Produce that is not subject to an agricultural offering cannot serve as the required portion for produce that is subject.

3: 10 Case and theory comparable toM. 3:7.

Like M. 3:7, above, this can come from no earlier than U shan times.

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4:3 That which is not subject to This adds to the Yavnean definition dough offering does not serve to of what constitutes a batch of dough join together two quantities of subject to dough offering. dough which, if of sufficient quantity, would be subject. 4:6 In a case of doubt whether or not dough offering already has been separated, clean dough may be designated as dough offering on behalf of that which is unclean.

IV.

This minor development of ii.C.2:8 belongs at Usha. The notion that the restrictions that normally apply are not operative in the case of doubtfully tithed produce is a commonplace in this division.

Produce Grown Outside the Land qf Israel

This closing appendix 1) discusses the status of land leased by an Israelite in Syria (iv.B.4:7, 8), 2) explains the rules that apply to the bringing to the Temple of offerings separated outside of the land of Israel (iv.D.4:10-ll), and 3) includes a list of types of offerings that, because they are of impaired status, may even be given to priests who are not trusted to observe the rules of Levitical cleanness (iii.C.4:9). The unit does not appear to contain an over-arching legal theory. Nor are its materials developed so as to allow secure placement within the unfolding of the law. A. Btfore 70

B. 7he Time qf Yavneh 4:7 Land leased by an Israelite Eliezer holds that produce grown in Syria-Eliezer: The produce is on land held in Syria by an Israelite subject to tithes and the restrictions is comparable to produce grown in of the seventh year. Gamaliel: It the land of Israel itself. Gamaliel is exempt. Eliezer: In Syria one disagrees. portion of dough offering is separated. Gamaliel: Two portions (one of which goes to a priest, the other of which is burned).

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C. The Time qf Usha 4:9 List of offerings that may be given to any priest, even if he is not trusted as regards matters of cleanness. Aqiba includes vetches in the status of heave-offering. Judah forbids first fruits.

Judah's view appears again at Bikkurim, iii.C.3:12F-G. There is a question whether or not vetches will be eaten by humans at all (Temmot, viii.D.ll :9) which accounts for Aqiba's position. While discussion of the larger issue of this pericope began in the Yavnean period, it appears still to have been moot in Ushan times.

D. Unassigned 4: 10-11 List of figures who brought offerings from outside of the land of Israel, at the wrong time, or in the wrong form, and the Temple priests did not accept them. They did accept first fruits from an Israelite's land in Syria.

III.

This construction appears to be late, since several of the restrictions it assumes are known only in Ushan times.

CoNCLUSION

Y avnean materials comprise the great majority of the tractate. 6 These Y avnean laws repeat for the topic of dough offering the legal perspective we have identified in the Y avnean strata of other tractates. In this view, the liability of produce to the separation of agricultural gifts is determined on the basis of the botanical classification of the food and in light of the physical actions of the Israelite who handles the produce. In the present case, Yavneans thus state that dough offering must be separated whenever bread dough is made from types of grain that can be leavened. In the typically Yavnean perspective, this is without regard for the Israelite's underlying intention to make bread or even to use the dough as food. 6 Eleven out of the tractate's thirty-seven entries (29%) are attributed to Yavneans, compared to only five pericopae (13%) bearing Ushan names. Ten of the twenty anonymous rules appear to be Yavnean. Only six of those rules are firmly placed in Ushan times.

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To the extent that the Yavnean material both sets the tractate's issues and provides the greatest bulk of its assigned traditions, this tractate, more than any other in the Division of Agriculture, must be deemed a Y avnean creation. Its place in the system of agricultural law as a whole, parallel in topic to Tractate Maaserot and covering the role of human actions in rendering produce susceptible to sanctification, indeed is established by the Yavnean materials. As we have seen, the Ushan materials that appear here share the legal perspectives found in U shan laws throughout this division. Yet it is unclear why, for the case of this particular tractate, Ushans did so little work in developing the apparently substantial body of Yavnean law they inherited. What Ushans tell us about dough offering is predictable. The paucity of rules they provide is not and, so far as I can see, has no ready explanation. The several Ushan rules that occur here develop in typically Ushan directions the theme of the tractate established at Y avneh. Eliezer in particular is active, holding that the householder's own perspective determines what batch of dough is subject to dough offering in the first place and that his intentions in separating the offering itself define whether or not the separation is valid. The tractate's anonymous rules as well repeat ideas commonly found in the mouths of U shans. These rules state that, in cases of doubt. the perceptions and intentions of Israelites must be taken into account. These determine what is subject to dough offering and, once the offering has been separated, define permitted and forbidden modes of handling the consecrated produce. This Ushan point, derived directly from Tractates Maaserot and Terumot, is that the desire of Israelites for the produce of the land determines the liability of the produce to the separation of the offerings mandated by God. God again is shown to demand a share only as a reflex of Israelites' own desires to use the fruit of the land of Israel. While God is the ultimate source of all holiness, specific portions of produce become susceptible to sanctification and are actually sanctified only in response to the actions and intentions of common Israelites.

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CHAPTER TEN

THE DEVELOPMENT OF THE TRACTATES: ORLAH

I.

INTRODUCTION

Lev. 19:23 states: "When you come into the land and plant all kinds of trees for food, then you shall count their fruit as forbidden; three years it shall be forbidden to you, it must not be eaten." To allow observance of this commandment, Tractate Orlah l) clarifies what are to be classified as fruit trees, 2) defines what produce of such trees comprises their fruit and 3) indicates whether or not an old tree that is uprooted and replanted is deemed a new growth, so as again to be subject to the three-year restriction. Finally, 4) several rules discuss neutralization and the loss of forbidden status of orlah-produce. Y avnean and U shan deliberations on these topics reflect the legal perspectives already identified in these periods. The few Yavnean rules show concern for the botanical characteristics of the tree and its produce. Since a tree that is uprooted and replanted begins to grow anew, Yavneans deem it again subject to the restriction of orlah. This is the case unless a root had remained in the ground during the time that the tree was being transplanted. Yavneans thus disregard the Israelite's perception to be planting the tree as a new growth or simply to be moving an old tree. Ushans, by contrast, do judge matters in light of the intentions of the Israelite who plants a tree. They hold, for instance, that only a tree planted purposely for its fruit is subject to the restriction of orlah. If the tree is planted for lumber or as a fence, by contrast, it is not classified as a fruit tree at all. Even in its first years of growth an Israelite may, therefore, eat its produce. The particular laws given here on the topic of orlah are not surprising in light of the other Yavnean and Ushan legislation found in this division. Viewed as a whole, however, the tractate is noteworthy. Concerned with basic matters of definition, the rules on orlah just reviewed lack a single, generative, issue such as characterizes other tractates in the Division of Agriculture. Furthermore, these rules on the topic of orlah comprise no more than half of the tractate's laws. The rest of the tractate discusses tangentially related matters, concerning the status

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of mixtures of forbidden and permitted produce. Yet even this question, of what determines the character of a mixture, is not answered in the materials before us. 1 It therefore is impossible to locate an overriding point of the tractate as a whole. Unlike the other tractates in this division, Tractate Orlah lacks an identifiable problematic or even a single topical theme. 2 In Tractate Orlah, the Mishnah's formulators thus address a topic about which they have little of importance to say. This negative conclusion regarding the specific tractate before us is in line with a fact that is clear from the review, found above in Chapter One, of the Division of Agriculture as a whole. The topics considered in this division have been chosen because of their importance within Scripture's tithing law, not because in each case the Mishnah's framers had on hand distinctive or even sustained statements on them. The Mishnah's formulators recognized Lev. 19:23's importance for those individuals who desired to consume their food under divinely mandated conditions of sanctity. The tractate therefore was created. As a result, we have before us a collection of materials that barely may be called a tractate at all. This is, rather, a set of loosely connected chapters on tangentially related topics, only in part discussing the very area of law that, in the first place, called for their compilation. A. Orlah bifore 70 The one dispute attributed to the Houses makes use of ideas known, in Tractate Terumot, to derive only from the period of Usha. These concern whether or not forbidden produce that leavens or flavors permitted produce renders that permitted produce forbidden for consumption (ii.A.2:4-7). In light of its dependence upon late ideas, the dispute cannot be authentic to the early period. Since this one entry in any case does not concern the particular topic of orlah-produce, we can state confidently that the Mishnah's treatment of that topic begins only in Yavnean times.

1 Note by contrast the theory of mixtures found in Tractates Terumot and Kilaim, which claim that, in most cases, the Israelites' own perceptions of the status or character of the mixture determines how that mixture is treated under the law. See, e.g., Ternmot, iv.C.7:5-7. 2 Essner, p. 105, states, "The tractate has no problematic; no generative principle shapes the way the tractate approaches its subject matter. Indeed, it is difficult to speak of a 'tractate' at all, if by tractate we mean a systematic approach to a single subject."

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B. Orlah in the Time qf Yavneh The three basic issues discussed at Y avneh determine the direction that deliberation of the topic of orlah will have in this tractate as a whole. Yavneans, first, define a new tree, subject to the restrictions of orlah, as one that has freshly been planted. If an old tree is uprooted and replanted, it again becomes subject to the restrictions of orlah. This is not the case if, while the tree is uprooted, a single root still connects it to the ground. Since this tree can continue to survive without being replanted, it is deemed the same, old tree (i.B.l :4). Even when it is completely replanted, it is not subject to the restrictions that normally apply to a tree in its first three years of growth. Eliezer and Joshua dispute whether the restrictions of orlah apply to all edible products of a tree or only to the primary fruit (i.B.l: 7D-I). Eliezer follows the view commonly found in his name. He takes no account of the Israelite's attitude but, instead, deems all of the tree's edible products to be forbidden. Joshua, as expected, takes into account the Israelite's perspective, and he therefore exempts a tree's secondary products from the restrictions of orlah. Ushans, as we shall see, accept Joshua's view and develop it to its most striking conclusion (i.C.l: 1, 7A-C). One Yavnean item, unrelated to the specific topic of this tractate, forms the basis for an extended Ushan discussion of mixtures of more than one type of forbidden produce in a large quantity of permitted food. The specific Yavnean issue remains moot at Usha. This concerns whether or not we attribute dough's being leavened to heave-offering, even if unconsecrated leaven may in fact have acted upon the dough (ii.B.2:11-12, 13).

C. Orlah in the Time qf Usha While following the same basic theory of what constitutes a new tree as is found at Y avneh, U shans add their own, distinctive perspective. They define a fruit tree, subject to the restrictions of orlah, as a tree that Israelites purposely plant in order to use its fruit. A tree planted for lumber or as a fence is not subject to the restrictions of orlah, even if it does, incidentally, produce fruit (i.C.l: 1). In such a case Israelites may in fact eat the fruit of that tree during its first three years of growth. In the Ushan view, the tree's classification and status within the law are not determined by botanical genus but by the Israelite's attitude towards it and perception of its primary purpose. Jacob Neusner - 978-90-47-41637-1 Downloaded from Brill.com02/08/2023 11:54:33AM via Universite degli Studi di Milano

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Ushans are clear that, like heave-offering, orlah-produce that is mixed with unconsecrated food loses its forbidden status. The mixture as a whole then may be consumed (i.C.l :6). Yet here again the perceptions of the Israelite are central. Meir, for instance, holds that orlah-produce already subject to processing by an Israelite no longer. is rendered permitted through neutralization (ii.C.3: 1-2, 6-8). Having come under the Israelite's careful attention and desires, the produce has intrinsic and irrevocable value. It never may be deemed an insignificant portion of the mixture and, therefore, is not subject to neutralization. The Ushan discussion of neutralization accounts for the presence here of other materials concerning mixtures of two or more types of forbidden produce and permitted food. As in the Y avnean stratum, the question of the status of the three-part mixture remains moot (ii.C.2: 10, 14, ii.D.2:15-l6). Ushans clarify only one situation. If heave-offering leaven and unconsecrated leaven, both sufficient to leaven dough, are mixed with unconsecrated dough, that dough's rising is to be attributed to the heave-offering (ii.C.2:8). As a result the dough is forbidden for consumption by non-priests. Ushans dispute whether or not this is the case if it can be proven that the unconsecrated leaven, and not the heave-offering, accounts for the dough's rising (ii.C.2:9). Unaccountably, in these cases the theory that in matters of doubt we avoid an impairment of status (see e.g., Terumot, iv.C. 7:5-7) is not applied.

II.

THE HISTORY OF TRACTATE 0RLAH

i. Trees and Fruit Subject to the Laws qf Orlah

If a tree is uprooted and replanted, it is deemed a new growth, such that its fruit is forbidden under the laws of orlah. If the uprooted tree remains attached to the ground by even a single root, it is not deemed a new growth and, therefore, does not revert to the status of orlah. This basic theory of what constitutes a new tree is known in Y avnean times, i.B.l :4. Its line of reasoning is developed by Ushans, who determine that shoots, which grow ftom the tree into the ground, are not comparable to roots. If an uprooted tree is connected to the ground by a shoot, both the tree and that shoot (which depends upon the tree for sustenance) are considered new growths and subject to the restrictions of orlah (i.C.l :5).

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Yavneans ask whether or not the restrictions of orlah apply to edible portions of the tree (e.g., sap) other than the primary fruit (i.B.l :7D-I). The issue, moot at Yavneh, is resolved by Ushans, who determine that the restrictions of orlah apply only to the tree's primary fruit (i.C.l :7 A-C). It is only in respect to that fruit that Israelites classify the tree as a "fruit tree." Ushans add a further important point to this discussion. They state that the tree's fruit is forbidden under the restrictions of orlah only if, when he planted it, the individual intended the tree for fruit (i.C.l:l, 2). If the tree was planted for lumber or as a fence, its fruit is not forbidden under the laws of orlah. In the Ushans' conception, again, whether or not a tree is deemed a "fruit tree" is determined not by its genus and species but by the perceptions of the individual who plants it.

A. Btfore 70

B. 7he Time qf Yavneh 1:4 A tree that is uprooted but a root remains in the ground remains exempt from the restrictions of orlah. Simeon b. Gamaliel in the name of Eleazar b. Judah of Bartotha: The root must be as thick as a stretching pin.

Since the tree can continue to survive from the single root, it is not deemed a new growth that would be subject to the restrictions of orlah (i.D.l :3). The particular concern expressed here is developed at i.C.l :5, in the name of Meir. This supports placement of the present rule in the Y avnean stratum.

1:7D-I Milk curdled with the sap of an orlah-tree is forbidden. So Eliezer. Joshua: It is permitted. If the milk is curdled with the sap of unripe-figs from an orlah tree, it is forbidden.

Eliezer andJoshua dispute whether the restriction of orlah apply to all edible parts of the tree (Joshua) or to the fruit alone (Eliezer). The dispute is resolved in Ushan times, i.C.l:7A-C, where there is agreement that the laws of orlah apply only to the fruit.

C. 7he Time qf Ushah 1:1 A tree planted for lumber or as a fence is exempt from the

The individual's intention to use the tree either for food or for some

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restrictions of orlah. Y ose: If half of other purpose determines whether the tree is designated as a fence or or not it is subject to the restrictions for lumber, that half is exempt. of orlah. This typically Ushan notion is attested to Ushah by Yose, here, and by Simeon b. Gamaliel, T. 1: I. Discussion continues in the following item. I :2 A tree planted for public use is subject to orlah. Judah exempts. A tree planted in the public domain, in a boat, or which sprouts by itself, as well as trees planted by gentiles and robbers is subject to the restrictions of orlah.

These items are gray areas: they are planted for fruit but not in the normal manner of the land's owner planting the tree for his own use. The anonymous rule holds that it does not matter who plants the tree or who will eat the fruit. So long as the tree will be used for food, the restrictions apply. Judah holds that unless the planter intends the tree to produce fruit for his own use, the law does not apply. Developing the idea introduced at M. I: 1 and attested by Judah, this is firmly placed in the Ushan stratum.

I :5 If an old tree is uprooted and Developments of the principle a sunken shoot remains, both the known from i.B.l:4 and i.D.l:3 are tree and the shoot become subject attested to Usha by Meir. The point to orlah. Grafting does not render is that we follow the status of the that which is grafted subject to root. So long as it is viable, a new orlah. Meir: This is the case only tree has not been planted. Once if it is grafted to a healthy place the original root breaks off, or if on the vine, such that the graft it is not healthy, any shoots or grafts lives off of the vine and not from are considered new growths. its own shoots in the ground. 1:6 A sapling subject to the restrictions of orlah and one subject to the laws of Diverse Kinds that were mixed-one may not pick the fruit. If he did, the forbidden status is

This problem of neutralization is assigned to the Ushan stratum on the basis of the attribution to Yose. I cannot explain why, in this case, he is unconcerned with the inten-

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neutralized in two hundred and one pieces of permitted fruit. y ose: It is and neutralized even if the individual purposely created the mixture so as to neutralize the forbidden fruit.

tions of the individual who picks and mixes together forbidden and permitted fruit. 3

1:7A-C Parts of the tree other than its fruit are not subject to the restrictions of orlah, but are forbidden under the laws pertaining to the use of a tree in idol warship. Y ose: The budding berry is included under the laws of orlah, because it is a fruit.

The point is cognate to that of i.C.l: 1. Only fruit of a tree comes under the laws of orlah. This appears to develop the Y avnean dispute found at i.B.l :7D-I. Along with the attribution to Y ose, this gives us firm grounds for placement in the Ushan stratum.

D. Unassigned 1:3 An uprooted tree which can An act of planting creates a new live off of the earth surrounding its tree if, without it, the tree would roots is not again subject to the die. This is the most basic phrasing restrictions of orlah. If it cannot live of the point found both in Y avnean from the earth around its roots, and Ushan times (i.B.l:4, i.C.l:5). when replanted it is again subject to orlah. 1:8 Defective grapes, grape pips, grape skins and their wine, pomegranate shells and fruit pits are forbidden under the laws of orlah but are permitted under the laws of the fourth year. Fallen unripe fruit is forbidden under both restrictions.

These items are parts of fruit. Therefore, even though they are not themselves eaten, they are forbidden under the laws of orlah. The prohibition of the fourth year, however, applies only to what actually is food. Of these items, that prohibition can apply only to unripe fruit, which may be edible and can be used to manufacture wine. Developing for ambiguous cases the list

3 Terumot, iii.D.5:9, a rule assigned to the Ushan stratum, is clear, by contrast, that an individual's purposeful actions designed to neutralize heave-offering are void and leave the whole mixture in the status of heave-offering.

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of items introduced at i.C.l :7 A-C, this law can derive from no earlier than Ushan times. ii. Mixtures qf Permitted and Prohibited Produce Forbidden produce imparts its own status to permitted food with which it is mixed, to which it imparts flavor or which it leavens. The issue here, which remains moot at Y avneh and U sha, is what happens when inconsequential amounts of food subject to different restrictions together flavor or leaven permitted food with which they are mixed. 4 Both Y avneans and U shans dispute whether two different kinds of forbidden food jointly render forbidden the produce they leaven, or whether, since neither alone could have any effect upon the produce, their joint effect likewise is null. This issue reaches its clearest statement and most protracted discussion-but not its resolution-in Ushan times. Against the anonymous view, Simeon consistently holds that types of produce subject to different prohibitions never join together. So long as a type of forbidden food is not itself sufficient to flavor or leaven permitted produce with which it is mixed, it likewise has no effect in combination with produce subject to a different restriction. Unfortunately this rather interesting debate over the nature of forbidden status is not resolved in the materials before us and does not provide sufficient facts for reconstruction of the ideology that underlies each viewpoint.

A. Bifore 70 2:4-7 Forbidden produce that leavens or flavors permitted produce renders that permitted produce forbidden. The House of Shammai: If it was unclean, it also conveys uncleanness to the produce that it

The Shammaites hold that leavening or flavoring and imparting uncleanness go hand in hand. The House of Hillel deem these different processes to be distinct and unrelated. The rules for the flavoring

4 The Yavnean position here is consistent with that found at T erumot, vii.B, which states that heave-offering has no effect upon unconsecrated produce that it flavors. Yavneans here do however assume that heave-offering leaven imparts the status of heave-offering to unconsecrated dough that it causes to rise. Yavneans apparently take seriously the change in the physical appearance of the dough caused by the heaveoffering.

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flavors. House of Hillel: Unclean- and leavening of permitted food by ness is conveyed only if there is an forbidden food first were worked out egg's bulk of unclean produce. Dosi- in Ushan times, T ernmot, vii.C.l 0:1, theus of Kefar Y atmah: I heard a 3, 8, llA-D. It therefore is unlikely tradition from Shammai the elder that the rules and dispute given here that agrees with the Hillelite view. go back to the period before 70. 5 + Long explanation of anonymous This particular question does not appear elsewhere in the Mishnah. rule.

B. The Time if Yavneh 2: 11-12 Heave-offering leaven and common leaven together fall into dough. Neither of them alone is sufficient to leaven the dough, but together they do so. Eliezer: The status of the dough is determined by which leaven fell in last. Sages: The dough is not forbidden unless the heave-offering alone is sufficient to leaven it. Y oezer of the Birah reports in the name of Gamaliel the elder: The dough is forbidden only if the heave-offering is sufficient.

An issue reported in the name of pre-Yavnean authorities is still moot at Yavneh. Sages view(= Gamaliel the elder), that forbidden leaven renders dough forbidden only if it causes it to rise, is assumed and developed at Usha, ii.C.2:8, 9. This gives us good reason to assign this to the Y avnean period. There are however no substantive grounds for placing this idea in the period before 70 (see ii.A.2:4-7 and cf., Neusner, Pharisees, I, pp. 344-345).

2: 13 Vessels that one greased with clean and then unclean oil, or vice versa-Eliezer: The status of cleanness of the vessel is determined on the basis of the oil used first. Sages: Last.

The theoretical issue is the same as in the preceding entry: Is the status of a mixture determined by the element added first or last? Here the argument revolves around the facts of the case, that is, whether the first or the last oil will exude from the leather (T. Ter. 8: 15). The similarity of issue and the appearance of Eliezer give us good grounds for placing this at Y avneh.

5

See Neusner, Judaism, pp.

299~300.

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C. 1he Time if Usha 2: 1 Heave-offering, heave-offering of the tithe, dough offering and first fruits are neutralized in one hundred and one parts of produce. Orlah-produce and Diverse Kinds are neutralized in two hundred and one parts of produce. Simeon and Eliezer dispute whether or not quantities of orlah and Diverse Kinds combine to render produce forbidden. Eliezer states that they do only if together they also impart flavor to the mixture Simeon holds that they do not under any circumstance.

The pericope makes use of the figures for neutralization known already in Yavnean times (Terumot, iii.B.4:7) and advances the issue through the dispute between Eliezer and Simeon. Since this is surely the Ushan Simeon b. Yohai, the issue as a whole is placed here in the Ushan stratum. The same position attributed to Simeon here appears in his mouth at ii.C.2:10.

2:8 Leaven of common produce and leaven of heave-offering, each sufficient to leaven dough, are mixed with unconsecrated dough. The dough is deemed forbidden, as though it had been leavened by the heave-offering.

This is a subtle extension of the principle given at ii.A.2:4-7 and i.B.2: 11-12. That which is leavened by heave-offering takes on the status of that offering. M. 2:8 is attested to Usha by Simeon, in the rule which follows.

2:9 Situation like that of M. 2:8- The principle of the preceding is if the unconsecrated leaven already extended even further. Even though has leavened the dough when the the dough was already leavened, the heave-offering leaven is added, that heave-offering is deemed to affect dough still is rendered forbidden. it, such that it takes on a sanctified Simeon: It remains permitted. status. Simeon disagrees, claiming that the heave-offering could have had no effect. 2:10 Condiments subject to different prohibitions join to render forbidden the food they flavor. Diffferent condiments subject to

The issue is whether types of produce subject to different sorts of prohibitions combine to render other produce forbidden. Simeon states

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a single prohibition likewise render forbidden produce they flavor. Simeon disagrees.

that they do not, comparable to the position in his name at ii.C.2: l.

2:14 Leaven of heave-offering and of Diverse Kinds fall into dough Neither alone is sufficient to leaven it, but together they do. The dough is forbidden to non-priests but permitted to priests. Simeon: It is permitted to both.

This is a rephrasing of the issue of ii.C.2:10. The anonymous view holds that the different forbidden things combine and render the dough forbidden to non-priests. From the priest's point of view, the heaveoffering-leaven has no effect on the dough. The leaven of Diverse Kinds alone could have had no effect and, as a result, the dough remains permitted to priests. Simeon's view is just as at M. 2: 1 and 2: 10.

3:1-2 A garment dyed with dye from orlah-fruit is burned. If it is mixed with other garments-Meir: All are burned. Sages: It is neutralized in two hundred and one parts. Same dispute for case of a single forbidden thread woven in a garment.

The issue is whether the rule for neutralization (ii.C.2: 1) applies only to the orlah-fruit itself or also to a product made with that fruit. This secondary problem of neutralization is firmly placed in Ushan times on the basis of its substance and the attribution to Meir.

3:6-8 Same problem as at M. 3: 1-2 for case of bunches of fenugreek that are Diverse Kinds. Meir: the mixture is not neutralized because the items, sold by a count, remains discrete. Sages: That theory applies only to six specific items listed by Aqiba (+ Aqiba's list of six and an additional item).

The issue of the preceding entry is expanded to include the typically Ushan notion, phrased here by Meir, that what the householder perceives as distinct-because he is careful to sell or maintain it in discrete and correctly counted amountscannot be neutralized. Sages claim that this is not the theory. Aqiba simply ruled that certain extremely special types of produce never are neutralized from a forbidden status they hold. We have here both the

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inception of a rule at Y avneh and its development and re-interpretation at Usha.

D. Unassigned 2:2 Heave-offering m a mixture serves to neutralize orlah-produce in that same mixture and orlahproduce in the mixture serves to neutralize heave-offering + example using figures given at ii.B.2: 1.

In making up the quantity of produce in a mixture sufficient to neutralize heave-offering, orlah produce counts as unconsecrated food. This problem is derivative of the rules for neutralization given at M. 2:1. It presumably derives from Ushan times, although it may be Y avnean.

2:3 Same point as at M. 2:2orlah-fruit neutralizes Diverse Kinds and vice versa.

Considerations for placement of this rule are the same as above.

2: 15-16 Same issue as in the This is Ushan, just like ii.C.2: 1, preceding entry, but for cases of 2:10 and 2:14. seasonings that are heave-offering mixed with seasonings that are Diverse Kinds (M. 2:15), and for flesh of Most Holy Things and flesh that is Refuse or Remnant, which are cooked with permitted foods (M. 2:16). 2:17 Flesh of Most Holy Things Here the two types of prohibition and flesh of Lesser Holy Things are the same, such that even Simeon are cooked with ordinary flesh. will agree that the prohibited meats Even if each alone would have been join together to render the dish forneutralized, together they render bidden to those who are unclean. the mixture forbidden to those who Carrying forward the problem of are unclean. ii.C.2:14 and ii.D.2:15-16, this belongs to the Ushan stratum. 3:3 Garments in which forbidden hair or wool are woven must be burned.

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that of ii.C.3:1-2. Developing the theme of that other pericope, this entry too presumably derives from Ushan times. 3:4-5 Food cooked in an oven fired with the shells of orlah-fruit must be burned. If the food is mixed with other, permitted, food, its forbidden status is neutralized in two hundred and one parts.

The food takes on the status of the fuel with which it is cooked. Neutralization then applies, as to any other orlah-produce. There is no evidence that this secondary issue derives from earlier than U shan times. It parallels the Ushan rule at T entmot, vii.D.l 0:4, yet gives an opposing ruling. The question of the effect of cooking fuel upon that which it heats apparently remained moot late in the formation of the law.

3:9 Doubts concerning the status of produce: In the land of Israel they are adjudicated stringently. In Syria they are adjudicated leniently. The restrictions of orlah apply inside of the land of Israel as halakah. The restrictions of Diverse Kinds apply outside of the land of Israel as a rabbinic enactment.

This anonymous rule is unrelated to what has preceded in the tractate, such that there are no grounds for placing it within the unfolding of the Mishnah's law.

III. CoNcLuSION Tractate Orlah, a compendium of materials on several different topics, differs from each of the other tractates in the Division of Agriculture. These other tractates are generated by a single, encompassing question, pertinent to their chosen subject of discourse. As a result, these other tractates appear to be protected essays that make a discernable point about their topic. Tractate Orlah, by contrast, neither makes an identifiable point nor, for that matter, has a single, sustained topic. Tractate Orlah does however have a unifying theme that deserves

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recognition. For in taking up this particular theme, the tractate accords with the norms of Mishnaic inquiry~both in the Division of Agriculture and throughout the Mishnah. Tractate Orlah concerns the classification of ambiguous objects, that is, ones that fall between two or more different legal categories. More than anything else, the tractate's materials concern how to determine the status of a thing that is equally like two different classes of objects. The old tree that is uprooted and replanted and products of a tree that mayor may not be deemed its fruit are classic examples of objects that elude clear-cut classification. This concern for ambiguous cases is highlighted in the long section of the tractate concerning mixtures. In consistently turning to such gray areas in the law, Tractate Orlah fits firmly within the larger program of inquiry that characterizes the Division of Agriculture and the Mishnah as a whole. As Neusner has shown (Judaism, pp. 256-270), Mishnaic discourse in general addresses a narrow range of questions to each of the diverse topics it chooses to discuss. In his words, "The Mishnah presents a homogeneous set of inquiries, consistently asking the same sorts of questions, about gray areas, doubts, excluded middles without regard to the subject matter at hand or the topics of the material under analysis" (p. 256). In this respect, the most untypical tractate in the Division of Agriculture, in terms of its diverse agendum of topics, turns out to be very typical of Mishnah as a whole, in terms of its single theme. Tractate Orlah provides an example either of an unsuccessful Mishnaic tractate or, perhaps, of an unfamiliar theory of the concerns around which a tractate should be organized. The former conclusion seems the more likely. For while the questions asked by the tractate's authorities indeed are predictable, they are adduced without reference to an underlying topical issue that could have produced a legal statement of interest and importance. For unlike in the other tractates in this division, in Tractate Orlah the major issues under discussion remain moot throughout the development of the law. This precludes identification of a Mishnaic theory of orlah or, for that matter, of mixtures in general. The apparent reason for this is not far below the surface. The Ushans who are responsible for the vast majority of Tractate Orlah's materials recognized the centrality of Lev. 19:23 for Israelites determined to eat their food according to the standards of holiness established by Scripture. Yet they really had very little interest in the deeper implications of the topic of orlah as a concern unto itself. They were, perhaps, con-

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strained to talk about this particular agricultural restriction. Doing so without regard to a particular message that might be portrayed through the pertinent legislation led, however, to the anomalous tractate just considered.

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CHAPTER ELEVEN

THE DEVELOPMENT OF THE TRACTATES: BIKKURIM

l.

INTRODUCTION

The tractate's first unit lists the prerequisites for separating first fruits and reciting the Scriptural confession. The third unit describes, in a narrative passage, the actual procedures through which this offering is designated, separated and carried to the Temple in Jerusalem, where it is presented to the priests. Constructed almost exclusively of Ushan materials, these two units supply all information an Israelite needs to know in order to designate and dispose of first fruits. Concerned primarily with the mechanics of this operation, they provide few issues of legal interest or theoretical importance within the Division of Agriculture as a whole. As is the case for Tractate Orlah, while the Mishnah's authorities deemed it important to discuss this Scriptural offering, they did not produce an agendum of issues deeper than the surface question of what the Israelite must do to fulfill the requirement described in Scripture. The tractate's middle unit contains a series of comparisons of rules that apply to each of the several agricultural offerings referred to in the Division of Agriculture. Irrelevant to the specific topic of first fruits, this material would, however, comprise a fitting conclusion and summary for this division as a whole. It is unclear why it has been redacted between the tractate's two units on laws of first fruits instead of in the more appropriate position at the end of the tractate. 1 Before turning to the substantive development of the tractate's law, let us review the Scriptural passages that provide the facts upon which the Mishnah's rules depend. The first of the fruits of your ground you shall bring into the house of the Lord your God. (Ex. 23: 19) 1 A final chapter, M. Bik. 4:1-5, is found in standard printed editions of the Mishnah but is not authentic to the document. Omitted as well by Albeck, I have not included it in this discussion of the tractate. Since its contents have nothing to do with the law of agriculture, regardless of its origins, it need not detain us here.

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Then the Lord said to Aaron, "And behold, I have given you whatever is kept of the offering made to me, all the consecrated things of the people of Israel ... The first ripe fruits of all that is in their land, which they bring to the Lord, shall be yours: everyone who is clean in your house may eat of it." (Num. 18:8, 13) When you come into the land which the Lord your God gives you for an inheritance, and have taken possession of it, and live in it, you shall take some of the first of all the fruit of the ground, which you harvest from your land that the Lord your God gives you, and you shall put it in a basket, and you shall go to the place which the Lord your God will choose to make his name dwell there. And you shall go to the priest who is in office at that time, and say to him, "I declare this day to the Lord your God that I have come into the land which the Lord swore to our fathers to give us." Then the priest shall take the basket from your hand, and set it down before the altar of the Lord your God. And you shall make response before the Lord your God, "A wandering Aramean was my father; and he went down into Egypt and sojourned there, few in number; and there he became a nation, great, mighty, and populous. And the Egyptians treated us harshly, and afflicted us, and laid upon us hard bondage. Then we cried to the Lord the God of our fathers, and the Lord heard our voice and saw our affliction, our toil and our oppression; and the Lord brought us out of Egypt with a mighty hand and an outstretched arm, with great terror, with signs and wonders; and he brought us into this place and gave us this land, a land flowing with milk and honey. And behold, now I bring the first of the fruit of the ground which you, 0 Lord, has given me." And you shall set it down before the Lord your God, and worship before the Lord your God; and you shall rejoice in all the good which the Lord your God has given to you and to your house, you, and the Levite, and the sojourner who is among you. (Num. 26:1-11)

A. Bikkurim bifore 70 The tractate contains no materials assigned to authorities who lived before 70. Nor does the logic of the development of the law indicate that any of the ideas of the tractate, other than those taken from Scripture, derive from earlier than Yavnean times.

B. Bikkurim in the Time qf Yavneh Yavneans refer to three diverse areas of concern, leaving it to Ushans to provide the larger framework within which the laws of first fruits will be systematically expounded. Basing their considerations upon Scripture, Y avneans establish when in the agricultural year the Israelite

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may bring first fruits and recite the accompanying confession (i.B.1 :6G-K, i.D.1 :3E-H). They dispute whether or not Trans-Jordan was part of God's gift of land to the Israelites, such that first fruits may be brought from there (i.B.l: 10). Finally, Yavneans ask whether or not the decorations with which farmers adorn the baskets of first fruits being brought to the Temple are comparable in status to the first fruits themselves (iii.B.3:9).

C. Bikkurim in the Time qf Usha Ushans explore the conditions under which an individual may bring first fruits and recite the confession, delineate the procedure for the actual designation of the first fruits, and describe the procession in which the fruits are carried to Jerusalem, presented in the Temple and in which the confession is recited by the farmer. Within this account two issues of interest arise. Anonymous law holds that in order to bring first fruits, the individual must own the land upon which the produce grew (i.C.l:l-2, 6A-C, 6D-F, 7, 11). In this view the recitation's statement, "The first fruits of the ground which you, Lord, have given me" (Dt. 26: 10) refers literally to a specific Israelite's ownership of the land, at the particular moment at which the confession is recited. Judah, by contrast, holds that these matters of day-to-day economics within the Israelite community are not at issue. The confession, he says, thanks God for giving the land of Israel as a whole to all of the people of Israel. In this view, the question of who presently owns an area of land is not a factor in determining the right of individual Israelites to bring first fruits and recite. Even those who do not own land may do so. The second issue of Ushan concern is familiar from Tractate Demai and elsewhere in this order. Judah states that the farmer may give first fruits only to priests who are scrupulous regarding matters of purity. The anonymous law disagrees, holding that, like other Temple offerings, first fruits are divided among all of the priests serving in the Temple. It therefore does not matter that the farmer gives his first fruits to one priest and not another. Ultimately all the priests will share in them equally (iii.C.3: 12F-G). While the materials before us offer no resolution to this issue, it is important to note that, as we have found elsewhere in this division, the notion that observance or non-observance of the purity laws divides the people of Israel into distinct groups occurs only in the Ushan period.

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The middle unit of this tractate compares and contrasts the rules that apply to the several agricultural offerings referred to in the Division of Agriculture as a whole. Synthesizing a wide range of facts familiar from other tractates, these materials come at the end of the formation of the law.

II.

THE HISTORY OF TRACTATE BIKKURIM

i. Bringing First Fruits and Reciting the Confession Y avnean authorities delineate the periods of the year during which Israelites are permitted to bring first fruits to the Temple and to recite the confession. These rules derive from Scripture. Ex. 23:16 links the bringing of first fruits to the harvest festival of Pentecost. Y avneans therefore agree that from this festival and until Sukkot (that is, during the harvest months) the individual may bring first fruits and recite the confession (i.B.l: 10). Mter Sukkot and until Hanukkah, first fruits still may be brought. Yet Y avneans dispute whether during this later period, which no longer comprises the harvest months, the confession may be recited (i.B.l:6G-K). A second Yavnean issue also remains moot. This concerns whether or not Trans-Jordan was included in God's original gift of land to the people of Israel, such that first fruits may be brought from its area (i.B.l: 10). Ushans address basic questions regarding the right to bring first fruits. Scripture states that these are brought in recognition of God's having given the land to the people of Israel (Dt. 26:1-2). Certain Ushan authorities therefore hold that only an individual who owns the land upon which the produce grew may bring first fruits. Judah disagrees. He holds that reference is not to God's having given specific plots of land to individual Israelites, but to his having turned over to all of the people of Israel collective possession of the land as a whole (i.C.l: 1-2, 6D-F, 11 ). In Judah's view the individual may bring first fruits and recite whether or not he owns the specific plot of land upon which the fruits grew.

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A. Brfore 70 B. The Time qf Yavneh 1:6G-K From Pentecost until Suk- The recitation is made only during kot one both brings first fruits and the months closest to the festival recites the confession. From Sukkot of the harvest. But late ripening until Hanukkah, one may bring first may be brought even after that first fruits but may not recite. Judah period of time. Judah b. Bethera b. Bethera: He both brings and permits the recitation whenever one recites. brings first fruits. 1: 10 They bring first fruits and recite from Pentecost until Sukkot They bring the best of the produce of the land oflsrael, including olives used for oil that grow in TransJordan. Yose the Galilean: They do not bring first fruits from TransJordan, for it is not "a land flowing with milk and honey" (Dt. 26:15).

The unit both repeats material stated in the preceding entry and intraduces material that will be fully developed at Usha. We therefore have good grounds for assigning it to this stratum. Yose rejects fruit from Trans:Jordan, claiming that that land was not included in Israel's inheritance from God.

C. The Time qf Usha 1: 1-2 Individuals whose trees grow part on their own property and partially on adjacent property do not bring first fruits from that which grows on the adjacent property. Judah: They do bring. Sharecroppers, tenant farmers and those who hold property that is not rightly theirs do not bring first fruits. Because Scripture states: You shall bring the first of the fruits of your land (Dt. 26:2).

The anonymous rule holds that first fruits may be brought only by an individual who grows produce on his own land. As the citation of Scripture indicates, this view understands first fruits to be an offering thanking God for giving over to Israelites ownership of specific parcels of land. Judah disagrees, holding that this offering celebrates Israelite possession of the land in general. Placement is on the basis of the attribution to Judah, paralleled at i.C.l: 11.

1:4-5 A proselyte brings first fruits but does not recite the confession,

The Ushan construction begun at i. C .1: 1-2 continues and is further

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for he cannot say: "I have come into the land which the Lord swore to our fathers to give us" (Dt. 26:3). Executors, agents, slaves, women, people of doubtful sex and androgynous people bring first fruits but do not recite, for they cannot say, "The first fruits of the ground which you, Lord, have given me" (Dt. 26:10).

attested to Usha by Eliezer b. Jacob, who refers to a secondary issue within this pericope. This entry presents a subtle development of M. 1: l 's claim. Here the individuals do own the land upon which the first fruits grow. But, because of their secondary status within the Israelite community, they still cannot refer to the land as having been given to them. They comprise a grayarea within the law, such that they are allowed to bring first fruits (insofar as they meet i.C.l: l-2's qualifications) but may not recite the confession. Further discussion is by u shans, Judah and y ose in the name of Meir, T. 1:12.

1:6A-C If he buys two trees but not the property upon which they grow, he brings the first fruits but does not recite. Meir: He recites, for a purchase of two trees includes the land.

By holding that he brings first fruits at all, the anonymous rule disagrees with i.C.l: l-2. Meir is consistent with that other rule. The purchase automatically includes the land, such that the individual both brings and recites.

1:6D-F Mter the first fruits are harvested, the tree dies and is cut down. He brings the first fruits but does not recite. Judah: He does recite.

Once the land does not support trees, it is not the sort of agricultural land from which first fruits are brought at all. Therefore the anonymous rule holds that the individual-no longer a landowner in the usual sense-may not recite. Judah, who holds (i.C.l: l-2 and ll) that ownership of land is not even a requisite for bringing first fruits, disagrees and holds that the recitation is made.

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1:7 If after he separated first fruits he sold the field, he brings them but does not recite. The one who purchases the field may bring first fruits from a different kind of produce growing in that field, but not from the same kind. Judah: Even from the same kind he brings and recites.

The situation is comparable to that of the preceding entry. Since, at the time that he brings the first fruits, the individual does not own the land, he does not recite. The real issue is the status of the new owner. The anonymous rule judges his rights and responsibilities from the perspective of the field. There can be no more first fruits of a kind that already produced first fruits. Judah, by contrast, judges matters from the point of view of the owner. That which grows under his ownership is the first fruits of his field, such that he may bring them and recite. Placement here depends upon the attribution to Judah and the secondary character of the issue, comparable to that of i.C.l :6A-C and D-F.

1: 11 One who purchases three trees on the land of his fellow brings first fruits and recites. Meir: Even if he buys only two trees. Judah: Even sharecroppers and tenant farmers, who do not own the land, bring first fruits and recite.

A purchase of three trees includes the land (M. B.B. 5:4), such that the individual meets the requirements of i.C.l:l-2 and may both bring first fruits and recite. Meir agrees with the principle but disagrees concerning the required number of trees. Judah disputes the whole notion that one need own the land in order to recite. See i. C .1: 1-2.

D. Unassigned 1:3A-D Only the choicest fruits, which represent the fertility of the land, are brought as first fruits (see Dt. 8:8).

This appears to be Y avnean. The notion that first fruits are brought only from the seven types of produce for which the land of Israel

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is noted is known by Yavnean authorities, iii.B.3:9. The eligibility of two specific types of produce is discussed by Eliezer and Simeon b. Gamaliel, T. 1:15. 1:3E-H First fruits are not brought before Pentecost, for Scripture refers together to Pentecost and first fruits (Ex. 23:16).

The question of when first fruits are brought occurs at i.B.1 :6G-K and i.B.1: 10. Along with those pencopae, this too presumably is Yavnean.

1:8-9 If he separated first fruits The priests must in all events reand they were stolen, lost or be- ceive their due. The substitute procame unclean, he brings other pro- duce is not however really first fruits, duce in their stead but does not such that the recitation may not recite. The substitutes are not sub- be made The landowner's responject to the stringencies that normally sibility ends once he reaches the apply to first fruits. If produce be- Temple-court. He may not recite, came unclean in the Temple court- since he has not actually offered yard he scatters it on the ground first fruits. But he need not bring and does not recite. + Scriptural a replacement offering. The larger notion of a replacement offering is proof text. first known in the Y avnean stratum ofTerumot, iii.B.5:2. This development of that idea is attested to Usha by Judah, T. 1:5. ii. Comparisons

if Different Agricultural

A series of apparently Ushan and and contrasts the rules that apply referred to in this division. This already know. It does not provide

Offerings post-Ushan constructions compares to the several agricultural offerings unit thus synthesizes facts that we its own, new, ideas.

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A. Bifore 70

B. The Time qf Yavneh 2:6 A citron tree is like a tree as regards the laws of orlah, the fourth year and the seventh year. Gamaliel: The citron tree is like a vegetable in that it is tithed according to the year the fruit is harvested. Eliezer: No. It is like a tree and the fruit is tithed in accordance with the year in which it ripens.

The rule is placed in the Y avnean stratum on the basis of the attributions to Gamaliel and Eliezer.

C. The Time qf Usha 2:2 Second tithe and first fruits are like each other but unlike heaveoffering: They must be eaten in Jerusalem; they may not be eaten by a mourner (Simeon permits); they are subject to removal; inJerusalem they are not subject to neutralization; and what grows from them is forbidden (Simeon permits).

See Maaser Sheni, vii.D.5:12 and vii.C.5:6A-G. Along with the attribution to Simeon here, these parallels provide good reason for placing this discussion in the U shan stratum.

2:8-11 A kay is in certain respects like a wild animal, in some ways like a domesticated animal, in certain ways like neither + long list of examples. Eliezer glosses.

The material in this list derives from sources in each of the strata of the Mishnah's law. The construction must be Ushan, such that I assume that the reference here is to an Ushan Eliezer. T. 2:1 supports this assumption, citing both Eliezer and the late authority, Yose b. Judah.

D. Unassigned 2:1 Heave-offering is like first The rule for neutralization derives fruits: Non-priests are culpable for from Yavnean times, Terumot, iii.B. eating them; they are the property 4:7. The other rules are clear from of priests; they are subject to neu- Scripture itself. This comparison

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tralization; and they must be eaten in a state of cultic cleanness.

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therefore can derive from Y avnean times or later.

2:3 Heave-offering and first tithe Various facts used in this pericope are like each other but unlike first are known before 70 (Terumot, fruits: They render forbidden pro- ii.A.4:3), at Yavneh (Terumot, i.B.l:l) duce on the threshing floor; they and only as late as U shan times have prescribed quantities; they (Bikkurim, i.C.l: 1-2). This construcmust be separated from all produce, tion as a whole therefore could not whether or not the Temple stands; have been created before the time and they are separated by share- of Usha. Discussion occurs at Usha, with Simeon, Yose and Simeon b. croppers and tenant farmers. Judah, T. 1:7 2:4 First fruits are unlike heave- The facts known here derive from offering and tithe: They are desig- Yavneh (Terumot, ii.B. 4:5) and probnated from unharvested produce; ably Usha (Bikkurim, i.D.l:8-9). This an entire field may be designated construction therefore appears to as first fruits; one must replace them be Ushan. if they cannot be offered; and offering them requires a peace offering, singing, waving and staying over night in Jerusalem. 2:5A-D Heave-offering of the tithe is like first fruits: It is taken from clean produce for unclean, and it is taken on behalf of produce in a different location.

The basic facts derive from U sha (Terumot, i.C.2: 1).

2:5E-G Heave-offering of the tithe is like heave-offering: It renders forbidden produce on the threshing floor, and it has a prescribed quantity.

The facts given here are assumed throughout the Division of Agriculture.

2:7 Human blood is like that of The rules for blood, found at M. a domesticated animal in that it Makh. 6:4-5, derive from Ushan renders seed susceptible to unclean- times. This comparison therefore

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ness (Lev. 7:26, 11:34, M. Mak. 6:4). It is like the blood of a reptile in that people who eat it are not subject to extirpation (Lev. 11 :29ff.,

belongs no earlier than the Ushan stratum.

M. Mak. 6:5). iii. Separating First Fruits and Bringing Them to the Temple The unit describes the process through which first fruits are designated (iii.C.3: 1), carried to the Temple in Jerusalem (iii.B.3:9, iii.C.3:2-6) and handed over to the priests (iii.C.3:12F-G). These concerns are almost exclusively products of the Ushan period. There is no evidence that they made use of earlier rules concerning how these rites were to be carried out. Indeed Ushans dispute the one important issue of this unit. This concerns whether, like heave-offering, first fruits are the property of the single priest, to whom the householder turns them over, or whether, like a Temple offering, they are to be divided among all the priests (iii.C.3: 12F-G). A. BifOre 70

B. The Time qf Yavneh 3:9 Simeon b. Nanos: The landowner may decorate the first fruits with any produce he wishes. Aqiba: He may decorate them only with the seven kinds from which the first fruits themselves are brought.

Placement here is on the basis of the attributions to Yavnean authorities and the parallel at i.D.l:3A-D, which indicates that the first fruits themselves are designated only from the seven kinds.

C. The Time qf Usha 3:1 How do they separate first fruits? He marks the first ripening fruit in his field and designates it as first fruits. Simeon: When the fruit is picked it must be designated agam.

Assignment to Usha is on the basis of the attribution alone.

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3:2-6 Long narrative description of the ritual of bringing first fruits to Jerusalem. Discussion of the processional, of the manner in which the fruits were to be processed, of the baskets in which the fruits were brought, and of the procedure for reciting the confession. Judah disputes this latter rule.

Placement in the Ushan stratum is on the basis of the participation of Judah. There is no evidence that this description was known before Judah's day.

3: 10 Simeon: Three categories of produce make up the offering of first fruits: The first fruits, the supplement and the decorations. + Rules for each category of produce.

Discussion of the decorations begins at Yavneh, iii.B.3:9, and is continued here. Along with the substantive development, placement here is on the basis of the attribution to Simeon.

3: 12F-G Judah: Israelites may Judah maintains that the first fruits give first fruits only to priests who are the personal property of one are scrupulous in matters of clean- particular priest to whom they are ness. Sages: They give the first fruits given. Anonymous sages state that to any member of the priestly they are the property of all priests. guard, and the fruits are divided Placement in the Ushan stratum is among the priests, as are other holy on the basis of attribution alone. things of the Temple.

D. Unassigned 3:7 The law was that anyone who There are no grounds for placement could should read the confession of this unit within the logical unfoldwithout assistance. When people ing of the law. became embarrassed and refrained from bringing first fruits, sages ordained that the priests should lead everyone through the reading. 3:8 The rich bring their first fruits in baskets of silver and gold, the poor in wicker baskets. The baskets belong to the priests.

Derivative of an issue introduced at iii.C.3:2-6, this rule derives from Ushan times.

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3:11 Under what circumstances did sages say that the supplement of first fruits has the same status as the first fruits themselves?

Discussion of the supplement, begun at Usha, iii.C.3:10, is continued here. This rule belongs in the Ushan stratum.

3: l2A-E First fruits are the personal property of the priests, to do with as they please, using them either as a food or to pay debts.

There are no substantive grounds for placing this rule within the unfolding of the Mishnah's law.

III.

CoNCLUSION

Tractate Bikkurim proposes to detail the mechanics of the separation of first fruits and to describe the processional in which the offering is carried to the Temple in Jerusalem. In this regard the tractate is parallel in concern to Tractate Peah, which describes how poor offerings are designated and transmitted to the poor, and to the introduction to Tractate Terumot, which describes the designation and separation of heave-offering. Unlike these other tractates, which detail the metaphysical aspects of the consecration of produce to be an agricultural offering, Tractate Bikkurim concentrates primarily upon matters of ritual. Indeed, in describing this Temple ritual, its concluding section, set in narrative form, is particularly effective. At the same time, the tractate's narrative form and interest in details of ritual must not be allowed to disguise an important fact. This is that, like Mishnah Orlah, Tractate Bikkurim has no generative problematic. It lacks the single issue of mind that, in other tractates in this division, allows the Mishnah's authorities to develop generalized, theoretical perspectives upon the rights and obligations of Israelites in relation to God, the land upon which they live and the food that they eat. While Tractate Bikkurim fills in details left open by Scripture, it does not leave the framework of Scripture's own law so as to describe, as Tractates Terumot and Peah do, the deeper processes through which produce comes to have the status of a sanctified agricultural offering. Like Tractate Orlah, Tractate Bikkurim thus provides evidence that decisions regarding what topics should be included in the Division of

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Agriculture preceded the actual work done on those topics. Tractates Orlah and Bikkurim appear in this division, creations of the Ushan period, 2 despite their failure to produce important statements of law comparable to those found in their companion tractates.

2 Only six of Tractate Orlah's thirty-seven units and six of Tractate Bikkurim's thirty-five units are assigned to Yavnean names.

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HISTORY OF THE MISHNAIC LAW AND AGRICULTURE HISTORY

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CHAPTER TWELVE

BEFORE 70: THE MISHNAH'S DIVISION OF AGRICULTURE IN THE TIME OF THE TEMPLE

l.

INTRODUCTION

Examination of sayings that, with some degree of reliability, may be said to derive from the period before 70 tells us little about the state of the agricultural law while the Temple stood or about the beginnings of a rabbinic theory of agriculture. These sayings, all of which appear in the mouths of the Houses of Hillel and Shammai, are episodic and fragmentary. Seen as a whole they do not mark the inception of the discussions that, in the periods of Yavneh and Usha, lead to the creation of a Mishnaic system of agriculture. Examined individually, moreover, none of the facts that they present constitutes the underlying proposition upon which a tractate of the Mishnah is based and which that tractate's later authorities worked fully to expose. In the Division of Agriculture, the role of authorities who flourished before 70 thus is in two different respects minor. First stands the simple fact that these individuals contribute very little to the law. In their names we find only a few, in all but one case, trivial statements. Second, and much more important, the few comments that these authorities do provide neither encapsulate the Mishnah's system as it develops in later periods nor even enter that system as important components. Before turning to the implications of these facts, let us examine in detail the materials that have been shown to derive from the period before 70. This will show clearly the exact content and nature of the earliest stratum of Mishnaic law in the Division of Agriculture. This description, like the ones in the two chapters that follow, depends of course upon the analyses found in Chapters Two through Eleven. In those chapters I isolated within each tractate's several thematic units the materials that derived from before 70, Yavneh and Usha. 1 Now I

1 For reasons that should be clear by now, in setting out the strata in the formation of the law, we must be content to differentiate among the periods of before 70, Yavneh

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go back and draw together in a single description the materials pertinent to each of these three strata. The result is a cogent picture of the state of legal thinking in each of the Mishnah's formative periods. 2 This picture provides an answer to the central questions of l) when the law of agriculture emerged as a full and integral system and 2) of the character of that law as a systematic whole. With the purpose of this and the two following chapters clear, I turn to the Mishnaic evidence for the long centuries in which the Temple stood and in which priests and Levites, the designated recipients of the Mishnah's agricultural gifts, had concrete authority. The evidence, as I already have stated, is disappointing. Examined as a whole, the materials assigned to the period before 70 do not represent a stratum of the Mishnah's law at all. They are too episodic to be held in themselves to comprise a system of agriculture. Even viewed simply as a corpus of facts they are negligible, for in all but one possible case they have no weight in the later development of the law.

II.

AGRICULTURE BEFORE

70

In the following, the materials from before 70 are arranged according to the five principal themes covered in the Division of Agriculture as a whole. Under two of these themes authorities from before 70 provide no contribution at all. In two other categories, the Houses argue matters of definition, left open by Scripture and for the most part rejected in later Mishnaic authorities' development of these topics. Only in one instance might a Houses' dispute presage an issue of importance later on. In this case, the position of the House of Hillel, that holiness pertains to a batch of second tithe as a whole but not to

and Usha. A complete explanation of the reason for this and of the methodology that allows assignment of specific laws to the pertinent periods is found in the Introduction. 2 As I indicate in the Introduction, the role of later formulators and redactors in choosing for transmission and giving linguistic form to antecedent materials means that we cannot claim to know all that the authorities discussed and believed, let alone how they would have formulated their ideas for transmission. On the basis of the preserved materials, however, we are able to evaluate the larger legal perspective of those who preceded the Mishnah's final redactions, insofar as that perspective is revealed in the rather consistent pattern of legal concerns and methods found in each generation's assigned statements.

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specific coins within that batch, may stand behind the conception of holiness developed in Yavnean times. A. Producing Crops under Conditions qf Holiness In order to produce crops under conditions of holiness, the Israelite must be careful not to sow together within a single field or vineyard different species of produce or plants. This much is known from Lev. 19:19 and Dt. 22:9-11. In the period before 70, the Houses clarifY Scripture's rule. They define exactly what constitutes a vineyard subject to the biblical restrictions, delineate the area surrounding the vines that is deemed integral to the vineyard, and determine the conditions under which, because of the great amount of empty space found within the vineyard, a second kind may be planted there (Kilaim, iii.A.4:1-3, 5, 6:1). To the extent that Yavneans continue along this same line of questioning, the Houses materials do engender continued discussion concerning the growing of crops under conditions of holiness. Yet, as we shall see in our review of the Y avnean materials themselves, even their repertoire of definitions does not provide the notions, distinctive to the Mishnah, that account for the principal rulings on this theme and that lead to the development of Tractate Kilaim as a whole. Only in the Ushan period does a distinctive rabbinic theory of how Israelites assure that they produce their crops under conditions of holiness emerge. The Houses dispute whether or not an individual may, in the Sabbatical year, sell tools that might be used in forbidden field work (Shebiit, ii.A.4:2A-H, I-K, 5:8). While not leading to important developments within Tractate Shebiit, this ethical issue of importance in the deliberations, in Tractate Demai, of the question of how Israelites are to assure that they eat their food under proper conditions of sanctity (see below).

B. Conditions under which Produce Becomes Subject to Sanctification This theme receives no attention in the period before 70.

C. Designating Produce to Be an Agricultural Qffering The period before 70 produces no ideas that, in the times of Yavneh and Usha, are formed into a theory of how Israelite farmers designate

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produce to have the holy status of an agricultural offering. The only pertinent dispute, at Terumot, ii.A.4:3, concerns the quantity of produce that the individual must separate as heave-offering. As we have seen, this notion, that the householder should measure out a specific quantity of produce to be heave-offering, is explicitly rejected by later authorities.

D. The Care and Handling qf Holy Produce The House of Hillel (Maaser Sheni, ii.A.2:7, 8A-C, 9F-H) holds that a status of holiness pertains to a batch of coins as a whole but not to the individual coins in that batch. Therefore, should second tithe-coins be mixed with unconsecrated ones, the householder need simply separate out the correct value in money, paying no attention to which coins originally were sanctified and which were unconsecrated. This opinion may stand at the root of the theory of the care and handling of holy produce first worked out in the Y avnean stratum and greatly expanded in U shan times. This view holds that by separating a portion of a batch to be an offering, the householder designates that portion to be holy and leaves the rest of the batch totally unconsecrated. In the present case, in choosing certain coins to replace the lost offering, the householder effectively transfers to the money he sets aside the status of consecration previously spread throughout the batch. The Hillelite view, that is, holds that the Israelite may designate as holy whatever coins he desires, such that which coins previously were sanctified is irrelevant. The Hillelite view thus presents a basic proposition that could allow for the development of later authorities' transactional understanding of holiness.

E. Eating Food under Conditions qf Holiness The one verifiable Houses' dispute on this theme (Demai, ii.A. 3:1 C-H) does not stand behind developments of the Yavnean and U shan periods. The Shammaites' claim, that each person is responsible to prevent another from transgressing, does however provide an ethical consideration important in a general way to the law of Tractate Demai. The main point of the tractate is that people must tithe all food that they give away, lest the recipient transgress by eating it untithed. This is a concern only in light of the Shammaite view, that by allowing the other's actions, the produce's original owner also is culpable. This con-

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sideration does not however generate any of the tractate's specific laws. In fact, both of the Houses hold opinions that contradict the Ushan theory that accounts for the tractate as a whole, that one must tithe all that leaves his possession. By contrast, both the Shammaites and the Hillelites believe that, if it is known that the recipient will tithe, the produce's original owner need not do so. Continued acceptance of that view would have precluded the creation of Tractate Demai. 3 The other item on this theme assigned to the Houses does not appear to be authentic to the period before 70. The Shammaites (Demai, v.A.6:6) hold that olives may be sold only to individuals trusted to process them in cleanness. This reflects the much later, Ushan, definition of the haber, a person who does not sell food to anyone not trusted as regards tithes and the laws of cleanness. The Hillelite position, which holds that the individual may give away or sell olives without tithing them, is out of phase with the law of the tractate as a whole, for it demands that one tithe all produce that leaves his possession. If it is old, then it represents a notion of the tithing laws rejected by Yavnean times (see Sarason, Demai, p. 226).

III.

CoNCLUSION

Authorities from the period before 70 contribute little to the Division of Agriculture. The smattering of facts they provide does not in itself present an identifiable ideology regarding the character or meaning of the agricultural laws. These facts are not even sufficient to allow practical implementation of Scripture's tithing restrictions. Nor do these facts, when viewed individually, provide the starting point for later deliberations on any of the Division of Agriculture's particular themes. Only a single opinion from the period before 70 even enters the system of agriculture in an important way, the Hillelite statement that coins in the status of second tithe are not deemed individually to be sanctified with the status of that offering. Yet even in this case, the

3 The basic premise that led to the creation of Tractate Demai-that one must tithe all that leaves his possession-is Ushan. In the view of earlier authorities, that one normally tithes when he is about to eat produce himself, the problem of doubtfully tithed food does not arise at all. On the Ushan origin of Tractate Demai, see the introduction to Chapter Three.

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relatively minor character of the Hillelite view must be stressed. Its importance is a function of the peculiar way Y avneans interpreted it and of the notions of sanctification that appear to have been created from it. Standing alone, the Hillelite opinion does not constitute even a basic datum of its own period, for it is under dispute by the Shammaites. In all, if we had the materials from the period before 70 alone, we could in no way predict the character of the system of agricultural laws as it develops at Yavneh and Usha. Nor could we even imagine how, during the years when the Temple stood, the Scriptural requirements to separate agricultural offerings were carried out. This is not to claim that, prior to the completion of the Mishnaic Division of Agriculture, Scripture's tithing laws were not implemented. Historical sources from the time of Scripture itself and through the Second Temple period make it clear thatjews tithed. The point, rather, is that, whatever tithing practices did exist in the earlier periods, so far as the evidence of the Mishnah indicates, these were not taken up by the rabbis and made components of their own legislation. As we have seen in detail, the Division of Agriculture is almost totally the creation of Yavneh and Usha and contains little material that can be shown to derive from before the destruction of the Temple. Out of the division's 569 entries, only 40 (7%) are even attributed to authorities who lived before 70. The vast majority of these assignments, we have seen, are pseudepigraphic. These facts, provided by close scrutiny of the specific materials preserved in the Mishnah, are striking. For contrary to what these materials would lead us to believe, other evidence makes clear that, during the time of the Temple, agricultural tithes were a central topic of concern. In this regard I need only refer to the Pharisees, whom later rabbinism claims as its forbears. They comprised a table fellowship, distinguished from the rest of the people of Israel by their observance of restrictions concerning cultic cleanness and separation of tithes. The importance, in the period before 70, of agricultural law further is shown by facts internal to the Division of Agriculture. For a wide gulf distinguishes the agricultural laws available in Scripture from the set of restrictions and practices assumed within all strata of the Mishnah's law. This corpus of assumed facts contains the very identification and definition of the distinctive set of agricultural gifts upon which this division focuses. These gifts are not defined clearly in Scripture, but depend upon a rather elaborate interpretation and reconciliation of the Hebrew

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Bible's several tithing passages. 4 This means that, at some point prior to the inception of the discussions later redacted in the Mishnah, unidentified individuals carefully read Scripture and, on its basis, delineated a set of agricultural tithes. While clearly dependent upon Scripture's relevant rules, their work in laying out specific offerings represents a synthesis of passages that, in Scripture, derive from distinct and in part contradictory sources. This work of synthesis therefore should not be taken for granted. On the one hand it thus appears that, in the time of the Temple, certain individuals were concerned with agricultural restrictions and indeed carried out important work in developing Scripture's injunctions. Even so, except for definitions of the offerings themselves, the Mishnah's later authorities neither preserved nor, so far as we can tell, availed themselves of any significant laws they may have inherited concerning the separation and disposition of heave-offering and tithes. These matters were worked out in full by Yavnean and Ushan authorities. Both in its component parts and as a whole, the Division of Agriculture is the creation only of the time after the destruction of the Temple. Short of denying that the Pharisees followed tithing taboos, or of assuming that, after, the destruction of the Temple in 70, all knowledge of past ritual practice was lost, only one explanation appears reasonably to account for the facts before us. This explanation is that the rabbinic movement itself chose not to take up the extant legislation of Pharisees or Temple-priests and, in the first centuries, made little claim to continue their traditions. The reason for this choice may have been the early rabbinic movement's own lack of power and concomitant inability to speak in the name of others who actually held authority in the Israelite community. Or it could have been the simple desire of the early rabbis themselves to develop the agricultural law along lines dictated by their particular social and religious perspectives. Only later, based upon their own growing strength, did rabbinic authorities dare to rewrite their own history and to claim as their ancestors the Pharisaic group, remembered for its power and piety.

4 The Scriptural foundations for the Mishnah's set of agricultural offerings are detailed by Sarason, Demai, pp. 2-10. Sarason shows how two "broad theories of tithing" found in Scripture yield Mishnah's unitary set of agricultural tithes and restrictions.

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These suggested reasons for the lack of firm foundations of the Division of Agriculture in the period before 70 are, of course, only guesses. We have imperfect knowledge of what the Pharisees represented, of the ideals they held and of the rituals they actually performed. 5 Our understanding of the goal-political or religious-of early rabbinism likewise is imperfect. The significance of the absence of a Pharisaic legacy in the Division of Agriculture-the context within which we should most expect to find exactly that legacy-must therefore be narrowly defined. This absence means that later rabbinic claims of a continuity between rabbinic legislation and the traditions of Temple times and before are in fact a rewriting of rabbinic legal history. This revisionist history reflects, we must assume, the desire of a maturing rabbinic movement to legitimate its own rather recent origins. This was accomplished by tying them in with the group most remembered for piety and, as Josephus tells us, political control. The facts of the matter, however, appear clear. The evidence of the Division of Agriculture indicates that the Mishnah's tithing laws are a creation of rabbis living at Yavneh and primarily at Usha. Contributions to the law from individuals living while the Temple stood are few and far between. Those that are found, moreover, have no important implications for the law as it develops in the document before us. The implication of the late origins of the Division of Agriculture is that its notions of the meaning of the agricultural laws, the nature of sanctification and, through these topics, the meaning of Israelite existence after the destruction of the Temple and the failed Bar Kokhba revolt, comprise a distinctively rabbinic statement. These ideas reflect the human situation of individuals who attempted to start a new Jewish life after the destruction of the Temple. These rabbis chose to turn directly to Scripture as an independent source of authority, and not to those priests or other individuals who might have preserved the actual rules and practices of the time of the Temple. 6 Unlike what later rabbinic literature would like us to believe, then, the evidence internal to

5 See Neusner, From Politics to Piery: 1he Emergence qf Pharisaic Judaism. After careful evaluation of the early Christian and Jewish sources concerning the Pharisees, Neusner, p. 143, concludes in part that: "The historical Pharisees of the period before 70 A.D. have eluded us. Our inquiry time and again brings us to the problems of the history of ancient Judaism after the destruction of Jerusalem." 6 See Neusner, Holy 1hings, Part VI, p. 225.

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the Division of Agriculture proves that this division is a creation of Yavneh and U sha, not the final development of an unbroken and ongoing chain of tradition the character of which was conceived and set while the Temple stood.

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CHAPTER THIRTEEN

FROM 70 TO 140: THE MISHNAH'S DIVISION OF AGRICULTURE IN THE PERIOD OF YAVNEH

I. INTRODUCTION

With the destruction of the Temple in 70, questions concerning the cu 1tic life of the people of Israel will have come dramatically to the fore. The sacrificial cult had previously constituted the central place in which God's sanctity was revealed and called upon. Holiness was made present in the actions of the priests. They laid on hands, thereby designating animals to be consecrated, and then offered them up as holy gifts to heaven. God's sanctity further had been located in the Holy of Holies, the connecting point of the umbilical cord between heaven and earth. While the Temple stood, it and its cult comprised for the priestly and scribal circles from which rabbinic Judaism springs 1 the central proof that God filled the people and land of Israel with holiness. Mter 70, these people mourned the loss of the structure that, until then, had proven that God's promise to make of Israel a holy nation indeed had been fulfilled. Certainly the people looked back upon what once was and thereby maintained hope for the future. They continued to have, for one thing, access to the Temple mount itself. The site was open to Jews, and the people did go there. 2 Yet this access presumably was as discouraging as it was reassuring. For the Romans' appropriation of the Temple tax meant that, for the foreseeable future, the Temple would not be rebuilt. The continued existence of the priestly cast too served as a reminder of God's authority and presence. Yet with the cult destroyed, the priests had no concrete function in the sanctification of Israelite life. Like the site of the Temple, the priesthood could be no more than a symbol of the holiness that once had abided in the land. The work of Y avneans in the Division of Agriculture reflects and in two ways attempts to resolve the problems left by the destruction of 1 2

See Neusner, Judaism, pp. 230-250. See Smallwood, p. 346, and Schurer-Vermes-Millar, vol. I, pp. 521-522.

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the Temple. The vacuum left by the cessation of the cult was filled by the creation, at Yavnean hands, of a fully expressed system of agricultural offerings. In the Yavnean period, unlike in the time before 70, we find a clear formulation of the facts and procedures that allow the separation of the tithes required by Scripture. The important point is that, within the Yavneans' understanding, separating and paying these offerings represents a cultic act by which Israelites designate produce to be holy and then present this holy produce to God, through the tithes' recipients on earth. Delineation of the mode of separating these holy offerings thus constitutes an important step in assuring that, even with the Temple destroyed, the blessings formerly ensured by the cuitic life of the Israelite nation will continue, now through the actions of common Israelites who farm and eat the produce of the land. The Yavnean notion that Israel's cultic life is transformed through the actions of common Israelites depends upon the Y avnean understanding that, in tithing their produce, Israelites do more than simply pay taxes to priests and Levites. Y avneans understand the separation of heave-offering and tithes, rather, to constitute a procedure through which Israelites pay off God's lien upon produce grown on land that he owns and gave as a special gift to the Israelite nation. Produce designated for God, in this view, is by definition holy. In separating agricultural offerings and presenting them to God's representatives, Israelites engage in an economy of holiness comparable to that which once existed in the Temple. The Yavnean material thus makes the deep statement that, despite the loss of the Temple, the holiness that once filled the people and land of Israel still is present and subject to control. Even with the cult destroyed, the processes through which objects in the Israelite world are made holy continue. The ultimate meaning of this claim is that the loss of the Temple and its cult, as well as the continued rule of the Romans, do not change the most basic fact of Israelite existence. God still rules over and sanctifies the people and land of Israel. His presence and rule are underscored by the claim that Israelites still must pay God for the use of the land and that these payments have a consecrated status, comparable to that of the sacrifices once offered in the Temple. In laying out their agricultural rules, Yavneans accomplish two concrete things. First, they provide the details of a working system of agricultural law. They describe exactly how produce comes to be subject to the separation of agricultural offerings, indicate how those offerings are to be maintained in the householder's own domain, and determine

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how they are to be disposed of in the hands of their proper recipients. Second, in legislating these facts and details, Yavneans provide more than a simple catalog of mundane procedures. Rather, the details of the tithing system serve Yavneans-as they will serve Ushans-as a context in which to reply directly to the issue central in their day. This is the question of the modes through which the holiness once found in the Temple cult could now be located outside of the Temple. Y avneans, that is to say, provide a theology of sanctification meant, in the period immediately after the destruction of the Temple, to explain how holiness still could be found and manipulated in the Israelite world.

II.

AGRICULTURE IN THE TIME OF YAVNEH

Before turning to the specifics of the Y avnean laws, let us review their understanding seen whole. The Yavneans' claim, simply put, is that all produce grown upon the land of Israel is subject to sanctification. The reason for this is that Israelites' produce grows upon land the ultimate owner of which is God, and God, like all land owners, must be given a share of the crop that grows on his property. As should be clear, produce designated as God's share is holy, insofar as it belongs to God. It may only be consumed by those designated to eat it, primarily priests and Levites, who are God's cultic representatives on earth, and the poor, who have a special claim upon God for food. In order to prepare food for consumption at their common tables, Israelites must therefore separate the required agricultural gifts. This separation comprises an act of sanctification on the part of the Israelite, who, by choosing produce to be the holy offering, releases the rest of his food for common consumption. This rather straightforward Y avnean understanding of matters has two important implications for our understanding of the Y avnean notion of holiness. The first is that, according to Yavneans, the presence of sanctification in the world is a result of the continuing presence and concern of God. Only that which grows upon God's special land-and thus with God's blessing-may, in the first place, be designated to be holy. Holiness's existence therefore does not hinge upon any actions or deeds of Israelite farmers or householders. They determine what specific portion of the crop is to represent God's share, such that it is sanctified. But they do not have the power to designate as holy other things that are not already owed to God. Notably, holiness, in this view, contin-

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ues without regard to the existence of the Temple and quite separately from the political and economic facts of who at any given time controls the land of Israel as a whole or owns a specific plot of property within that land. This is stressed by the Y avnean understanding that even crops of fields owned by gentiles are subject to tithes. The second implication is that, for Yavneans, Israelites' power over holiness is confined to those physical actions through which they separate a portion of their crop, thereby designating it as the share owed God, and then transfer that share to the offering's proper recipients. Surely there may be intermediate stages, in which the status of holiness will be moved from the original offering into different produce or coins, as in the case of second tithe. In these cases, however, as in the original designation of the offering, the Israelite's power is confined to transferring, through physical actions, the status of holiness from one object to another. The crop's bond to God allows sanctification in the first place. Sanctity's attaching to any particular produce is the result of the physical action of an Israelite who chooses food for the Levite, priest, poor or for consumption in Jerusalem. In stating that non-priests select the portion of the crop to be holy and physically separate that portion from the rest of the food, Yavneans appear to make the non-priest an important actor in the process through which holiness is manipulated. As we shall see in our review of their specific laws, however, Yavneans are clear that, in this process, the Israelite does no more than to play a secondary part. The potential for sanctification exists whether or not Israelites will that certain produce should be holy, and, indeed, without regard for whether or not they consider the food edible or otherwise worthy of holiness. In the same way, Yavneans hold that, in determining whether or not the Israelite validly has separated an offering, that individual's own perceptions and desires play no role. What matters, simply, are the physical rules by which tithes normally are set aside. These determine what the Israelites may and may not do, without regard for the specific circumstances within which an individual separates the required agricultural gifts. Year after year the land yields its holy crop. God's lien upon it must be released in ways that are preset and unvarying. Israelites thus are only actors in a play they did not write and do not themselves direct. What they personally think or want has no effect upon the holy. They have the power only to follow a script outlining prescribed and unchanging actions. In this Yavneans take up and continue the Bible's priestly perspective.

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In order to make clear the overriding theory of the Y avnean materials, I now review the specific laws that Yavneans promulgate. Then we may turn to the meaning of these laws within the context ofJudaism immediately after the destruction of the Temple. A. Producing Crops under Conditions qf Holiness Y avneans describe preset and unvarying conditions adherence to which represents the Israelites' conformity to God' ideal, set out in Scripture, for the production of crops under conditions of holiness. The central point for Y avneans is that these prescriptions apply without respect to the circumstances of the individual Israelite farmer or the intentions and perceptions that he brings to the planting and harvesting of his field. Y avneans, that is, do not take into account the fact that, in carrying out what might be construed as a forbidden action, the individual actually has in mind some different, permitted, purpose. In the same way, Yavneans do not mind if, in doing what is permitted, the farmer should appear to transgress. To their thinking, all that matters is the concrete effects of the farmer's deeds, not the intentions with which he performs them nor the appearances that his actions create. In light of this attitude, Yavnean materials on this theme, found in Tractate Kilaim, develop the work of definition first begun in the period before 70. Yavneans, that is, define in detail the field within which only a single kind of produce may be planted (Kilaim, ii.B.2: I 0, 3:3, 4, 6). Yet unlike the prior authorities, Yavneans make clear the theory that underlies this work of definition. They state that the original layout of a field determines what may and may not be planted in it. Subsequent changes or the way a field appears at any given moment are not taken into account in determining how the field may be planted in a single agricultural year (Kilaim, iii.B.4:8). This rule emphasizes the Yavneans' belief that there is a preset order in the world, unaffected by the actions or understandings of Israelites who year-to-year farm their land in accord with their own changing needs and desires. (See also Kilaim, iii.B.5:7, 6:4.) This same perspective accounts for the Yavnean law in Tractate Shebiit, which concerns permitted and forbidden agricultural activities during the Sabbatical year. Yavneans disregard the appearance the farmer projects when, in the seventh year, he works his field. Nor are they interested in the intended results of his labor. What counts to Yavneans, rather, is whether or not, in concrete terms, that which he

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does promotes the growth of the seventh year crop (Shebiit, ii.B.3: 10, 4:6). Any work that promotes this growth is forbidden. If, however, what the farmer does has no effect upon the crop of the seventh year, it is permitted. This same objective understanding of the restrictions against growing crops in the seventh year appears to stand behind Ishmael's refusal to extend the restrictions of the Sabbatical year back into the sixth year of the seven year cycle (Shebiit, i.B.l:4I-K). Work done in the sixth year may indeed affect the crop of the seventh. Yet, in physical terms, these actions have not been carried out in the Sabbatical year. Ishmael therefore holds that they do not fall under Scripture's ban upon working the fields in the seventh year. Ishmael thus is careful to rule according to the letter of Scripture's law, just as other Yavneans consistently judge actions only on the basis of whether or not their concrete results are contrary to what Scripture demands. Only Yose the Galilean, Shebiit, ii.B.4:6, departs from the perspective that informs the vast majority of the Yavnean material on this theme. He holds that an Israelite's actions are holy-sanctioned by God-only if they appear to other Israelites to be permitted. According to Yose, the farmer therefore may do nothing that appears to be forbidden, even if it is in fact a permitted activity. Yose's minority opinion, as we shall see, paves the way for the overall perspective that U shans bring to this topic.

B. Conditions under which Produce Becomes Sufdect to Sanctification The four Yavnean rules on this topic make the basic point that is developed in the Ushan discussions of this theme. Produce becomes subject to the separation of agricultural offerings at the point at which it will be used in a regular meal. This is when an individual brings the food into his home, for it is there that he normally eats his meals. With this as the basic proposition, Y avneans question other conditions under which the produce will become subject to consecration as an agricultural gift. They ask, for instance, whether or not a courtyard is comparable to a home (Maaserot, iv. B.3:5A-D, 3:9). This is determined on the basis of the physical characteristics of that courtyard. A more interesting Y avnean question concerns seed crops, which will not be eaten at all. Y avneans state that these are not subject to tithes, for they are not a food (Maaserot, vi.B.4:5E-H). They further dispute whether an ambiguous crop's status as a food depends only upon whether it is edible at all or whether we must ask as well if people normally eat it

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(Maaserot, vi.B.4:6). These basic definitions of what is a food and subject to tithes differ from the Ushan materials, which, in cases of ambiguity, consistently take into account the Israelite's own intention to eat, or not to eat, the particular commodity. Tractate Hallah, which describes the conditions under which grain becomes subject to dough offering, is primarily a Yavnean tractate. The point it makes as a whole is no different from what we already have seen in the Yavnean stratum of Tractate Maaserot. Tractate Hallah holds simply that dough offering must be separated from any grain that is leavened (Hallah, i.B.l :3, i.D.l: 1). This is without regard to whether or not the baker intends actually to use the dough for bread. The individual's actions in making dough take precedence over his intentions, for instance, to use that dough as leaven and not to bake it at all. Only small quantities of dough are exempt from dough offering, for they are too insignificant to be termed food (Hallah, i.B.2:3, ii.D.2:6). This too is the case, Yavneans hold, without regard to the attitude of the particular Israelite who owns them and who may indeed intend to use the small bits of food in making a meal. They become subject only if the bits are thoroughly combined so as to form a single batch of at least a qab.

C. Designating Produce to Be an Agricultural O.ffiring Yavnean authorities hold that Israelites' manipulation of the holiness held by agricultural gifts is subject to rules like those that govern the handling of tangible materials. This Y avnean notion is revealed clearly in Tractate Terumot. Yavneans there hold that, validly to designate heave-offering, the householder must physically separate produce as that offering. Since what the householder does with one batch has no physical impact upon produce in a different batch, Y avneans prohibit the separation from one amount of produce of the heave-offering required for a different batch. Moreover, to be combined into a single batch, all of the produce must be in the same status regarding year of growth, susceptibility to the offering and ownership (Terumot, i.B.l :5, 2:1 ). Only such homogeneous produce combines into a single entity for purposes of the separation of heave-offering. In light of the requirements of physical separation, Yavneans rule that an Israelite may not designate all of a batch of produce to be heave-offering (Terumot, ii.B.4:5). Ushans, as we shall see, likewise require the householder to distinguish his share from that which becomes the offering. Their reason for this however

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is quite different from the simple one found in the Yavnean stratum. The majority of Yavnean discussions concerning the designation of produce to be agricultural offerings do not reveal sustained theories of the matter. They concern basic facts and definitions. Yavneans dispute whether or not grape clusters in a vineyard can be deemed defective, such that they belong to the poor, if they all have the same, albeit unusual, shape (Peah, v.B.7:7). The issue is whether we define a defective cluster on the basis of a single standard, applied to all fields, or on the basis of the norm in each individual field. Y avneans resolve an issue left open by the Houses, agreeing that to be deemed a forgotten sheaf, the sheaf must be completely forgotten by the farmer and his agents (Peah, iv.B.6:6). If someone might remember the sheaf in the field, it may not, in the meantime, be taken by the poor. For the case of first fruits, Yavneans supply the facts of when in the year these offerings may be brought to the Temple and the recitation made (Bikkurim, i.B.l :6G-K, i.D.l :3E-H). They dispute whether or not the decorations used on the baskets of fruit take on the consecrated status of the first fruits themselves (Bikkurim, iii. B.3:9). In all of these areas, Y avneans thus define the basic character of agricultural offerings and delineate the terms of their separation. In one final issue, Yavneans argue what is clear throughout the Ushan stratum of this division. Y avneans know that peah must be left unharvested at the rear of the field. The question concerns what defines a field, whether geographical considerations or the perspective of the farmer who chooses to plant and harvest his property in one manner and not another (Peah, i.B.2:3-4, 3:2). Yavneans, that is, dispute whether or not the attitude of the farmer should be taken into account in determining where peah is to be left. In this context, certain Yavneans thus move beyond the common Yavnean notion that the farmer's intentions and perceptions do not matter. These authorities presage the Ushan view, which deems the Israelite's attitude always to be determinative.

D. The Care and Handling qf Holy Produce The theory of holiness found in the Y avnean materials concerning the designation of produce as an agricultural offering controls as well Y avnean notions of the proper care and handling of consecrated produce in the secular world. Y avneans, that is to say, answer the question of what happens when holy and secular produce are mixed together by taking into account the physical character of what has happened, without

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regard for the perspectives or intentions of the individuals involved. This Yavnean ideology is most prominent in Tractate Terumot's discussions of what happens when heave-offering is mixed with unconsecrated produce, planted in place of secular seed or cooked with common food. In the first example, in which heave-offering and unconsecrated produce are mixed together (Terumot, iii.B), Yavneans hold that if there is much secular produce, the holiness is dissipated, such that the batch as a whole may be eaten by a non-priest. If, however, there is a large quantity of consecrated produce, it renders all of the mixture forbidden to non-priests. This occurs mechanically, without regard to the householder's sense of what happened or even, according to Joshua, to his ability to locate and recover the holy offering. The consecrated status of heave-offering seed is maintained by the crop that grows from that seed (Terumot, vi.B.9:4). This is because Y avneans see the seed as an integral part of the crop that grows from it. Cooking heave-offering with unconsecrated food, by contrast, does not impart a status of consecration to the secular produce. If the heaveoffering can be removed from the dish, it has no physical impact upon that with which it was cooked. For that reason, it is accorded no metaphysical effect either. The secular food still may be eaten by a nonpriest (Terumot, vii.B.l 0: liE-H). For the cases of both of these types of mixtures, the Yavnean rules differ considerably from Ushan law, which determines the status of the mixture on the basis of the attitude of the Israelite who planted the heave-offering seed or cooked his own food with the priest's share. As we have come to expect, the Yavnean materials do not evidence this concern for the perceptions or intentions of the Israelite farmer or householder. Interest in the physical characteristics that define the proper maintenance of consecrated food occurs as well in the Yavnean deliberations concerning second tithe. Tractate Maaser Sheni discusses proper modes of transferring, through ordinary business transactions, a status of consecration to and from objects in the secular world. In working out the facts of how these transfers are made, Yavneans, like Ushans, hold that the normal rules of economics apply. The central point, derived from Yavnean legislation, is that, in transferring a status of second tithe from produce to money and vice versa, the individual must be certain that the correct value of the original second tithe is preserved. The Israelite may neither increase nor decrease the quantity of holy substance through accepting an amount of money or food that is not commensurate with the value of the original second tithe given in

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exchange. Yet unlike later Ushans, Yavneans greatly limit the Israelite farmer's ability to transfer the status of holiness from one object to another (Maaser Sheni, i.B.l :SA-C, 2:3A, 4A-D). No matter what he intends to do, Y avneans hold that he cannot validly consecrate as second tithe non-food items, which never were envisioned by Scripture as having that status. Ushans by contrast hold that Israelites consecrate with the status of second tithe any object that they intentionally exchange for consecrated second tithe coins or produce. In one important dispute, Eliezer andjoshua (Terumot, iv.B.8:1-3 and v.B.8:8-ll) argue the role of the intentions of the Israelite in assuring that holy offerings are properly maintained. We know that under normal circumstances the Israelite must care for heave-offering by protecting it in cleanness and by making certain that he does not eat it in place of his own secular food. Eliezer argues that these restrictions apply mechanically, without regard to the particular circumstances in which the Israelite might come to eat or impart uncleanness to heaveoffering. In all cases the Israelite is culpable for tampering with the holy. In this view, Eliezer represents the common Yavnean perspective, that holiness is controlled by a preset and unvarying standard of behavior, unaffected by the circumstances, concerns or intentions of the individual Israelite. Joshua, by contrast, holds that culpability may be determined only in light of what the Israelite thought he was doing in the instance at hand. He thereby foreshadows the Ushan conception that the rules of holiness are largely reflexes of the Israelite's own perceptions of what is right and wrong. Exposition of this view, that an Israelite's rights and responsibilities are functions of his own analysis of what should or should not be done, is absent from the Yavnean stratum as a whole, yet, as we shall see, represents the central focus of the Ushan materials in the division.

E. Eating Food under Conditions qf Holiness In their few statements on this theme, Yavneans rule leniently concerning the consumption of food that may not have been properly tithed. They permit householders to serve possibly untithed produce to poor people who eat at their table (Demai, ii.B.3: lA-B). They are not even certain that, in order to prepare for consumption possibly untithed food, the Israelite householder must remove all of the doubtfully separated offerings (Demai, iii.B.4:3). Finally, they allow an Israelite to purchase and eat food without tithing at the word of people who are not

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themselves trusted to tithe that which they sell or serve (Demai, iii.B.4: 1). These leniencies reveal a general lack of Y avnean concern to prevent the Israelite from eating produce that might not have been completely tithed. While, as we have seen in the other thematic units just discussed, Yavneans show great interest in the physical acts by which Israelites separate agricultural offerings, they are not equally concerned with the social issues and concerns created by the determination of certain individuals only to consume produce under conditions of holiness. This is an important contrast to the Ushan materials, which require that the individual account for all of the required offerings and which define a separate group within the people of Israel distinguished by its consumption of produce under strict conditions of holiness. Yavneans legislate proper observance of the restriction against eating the fruit of a tree or vine in its first three years of growth (orlah) by defining what is deemed a new tree subject to that restriction (Orlah, i.B.l :4). Yavneans continue the work of definition by indicating that the restriction applies only to the tree's primary fruit but not to secondary products that derive from it (Orlah, i.B.l :7D-I). Again, the individual's intention to use part of the tree as food does not come into play, only the botanical definition of what constitutes that particular tree's primary "fruit." Y avneans supply the basic rule governing the consumption of heaveoffering and other consecrated offerings (Terumot, viii.B.ll: 3). To assure that none of the holy food will go to waste, the heave-offering must be processed in the manner normal for produce of its type. This concern for maintaining the full value of holy produce is familiar from the Yavnean deliberations on the proper care and handling of second tithe. It also is in line with the Yavnean view that what counts is the normative definition of what is food, not the particular individual's desire to use a certain portion of the produce in a particular way. 3

3 This stands in clear contrast to the Ushan idea, found in the final chapter of Tractate Terumot, that what the Israelite deems worthy as food retains its consecrated status, while that which is perceived as waste becomes unconsecrated and may, accordingly, be eaten by anyone who wishes to do so.

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III.

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CONCLUSION

The Y avnean materials make the strong claim that even though the Temple-cult has ceased, the holiness that once filled the land of Israel continues to be present. Y avneans make this claim by designing a system of tithing that assures that, just as when the Temple stood, the people will live a life of holiness and will return to its proper recipients the portion of their crop that represents God's share of the food of the land of Israel. In developing their tithing law, Yavneans deny the significance of the events of history that have destroyed the Temple and left the Romans in control of the land of Israel. Despite these occurrences, Y avneans claim that God still rules over the people and land of Israel. It is for this reason alone that the agricultural law continues to apply, that crops Israelites grow continue to be susceptible to sanctification as agricultural offerings. Their particular understanding of the processes of sanctification and desanctification takes us deeper into the Yavnean mentality. As we have seen time and again, Y avneans hold that, in the creation and disposition of holiness, the Israelite plays only a mechanical role. The potential for holiness, they say, is a result of God's rule over the land of Israel. Produce becomes subject to the separation of tithes in accordance with the natural calendar of ripening and consumption, unaffected by a particular individual's preparation of a meal, for instance, using unprocessed food or sitting outside of his own home. The transfer and maintenance of holiness within the world too follows preset and unvarying laws. These do not reflect the desires of Israelites who, under particular circumstances, act as they think is correct. Holiness rather is manipulated through physical acts of transfer. What counts accordingly are the concrete actions but not the intentions of Israelites. The permissibility of specific modes of growing, tithing and eating food thus depends not upon the Israelite's sense of what is proper but upon laws of holiness that are applied to all cases without variation. Particular to the Y avnean theory of agriculture thus is the conception of a preexistent order and law, imposed by God upon the world and independent of the emotions and intentions of individual Israelites who act within changing circumstances. This order is found by Yavneans in the geographical characteristics that, they say, define a field, just as it is found in the physical actions that Yavneans say determine how the Israelite may and may not treat holiness. Foremost in these Yavnean

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ideas is the perspective that Israelites do not create their own world but, rather, that they face a world already created and ordered. Within this world their own individual responsibilities and abilities are preordained and unvarying. This Y avnean understanding of the world presents a strong statement that, with the destruction of the Temple, nothing essential has changed for the Israelite nation. The rule of God still is complete. It leaves no room for, nor is it affected by, the ideals or desires of individual Israelites. While the Temple stood, the cult had presented a clear image of the requirements of holiness existing in unchanging order. In the Division of Agriculture, Y avneans describe rules of holiness that, while applied outside of the Temple, work according to this same ideal. The change in historical situations has neither increased the powers of individual Israelites nor rendered the laws of God relative. As when the Temple stood, Yavneans see God's rule to be concretized through the preset and unchanging laws that control the processes of sanctification and desanctification. It will take Ushan authorities, working after the failed Bar Kokhba revolt, more than two generations after the destruction of the Temple, to recognize the extent to which the spiritual situation of the Israelites indeed has changed. If the Temple, the physical sign of God's presence, is gone, and the priesthood, the earthly representation of the Lord's dominion, is without concrete function, then a new measure for cultic activity must be determined. As we shall see in the following chapter, this is the task that Ushan authorities in the Division of Agriculture take upon themselves. In this way they take clear steps to develop and complete the nascent system of tithing created in the Y avnean period.

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CHAPTER FOURTEEN

FROM 140 TO 170: THE MISHNAH'S DIVISION OF AGRICULTURE IN THE PERIOD OF USHA

1.

INTRODUCTION

Ushans inherit from Yavneans a basic framework of law describing how Israelites are to grow, harvest and eat their food under conditions of holiness. Through these topics, Yavneans legislated on a complete range of issues concerning use of the land of Israel in the production of food. They taught how Israelites are properly to plant and till the fields, designate and separate the required agricultural offerings, maintain these holy gifts in the secular world and, finally, eat these gifts as well as the produce from which they were taken. In developing these topics, Y avneans established the concerns and issues of each of the tractates in the Division of Agriculture. They further created a nascent system of agricultural law, comprised of this division as a whole. Before Yavnean times, that is to say, neither a theory of what a code of agricultural law as a whole should discuss nor even the topical concerns of any single tractate was in hand. By the end of Y avnean times, by contrast, the character of the Division of Agriculture was set. The system of agriculture as a whole thus emerged at the hands of a single generation of authorities. In response to the exigencies of their own time, they created a set of individual laws and, through them, a system of holiness that responded to the theological crisis of their day. This Y avnean system of agriculture does not however represent the final or even overriding meaning of the Division of Agriculture as it comes finally to stand before us. For this Mishnaic division is not a creation of those Y avneans who first conceived it. Both in content and form it comes to being at the hands of the final generation of Mishnaic authorities. Surely, as we have now seen, Yavneans determine the topical structure of this division. 1 Yet, at the hands of U shan legislators, 1 This is not meant to ignore the fact that authorities in the Ushan period and later determined which Yavnean materials would be included in this document and which

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the work conceived at Yavneh is given a new and, I shall argue, distinctively Mishnaic meaning. At the hands of the Ushans, that is to say, the Division of Agriculture comes to have a meaning peculiar to Mishnaic law and quite different from previous Yavnean and Scriptural legislation on the topic of agriculture. Ushans reject the central Yavnean claim, which denies the power and importance of the thoughts and desires of common Israelites. Throughout the material before us, Ushans, rather, stress a single point. The Israelites themselves are central in determining what is holy and what is secular, what is sanctioned by God and what is forbidden. These determinations are made through reference to the perceptions and purposes that individual Israelites bring to their actions in cultivating crops upon the land of Israel, in harvesting the produce, in separating agricultural gifts and, finally, in eating the food of the land. In this Ushan view, what is holy is that which appears to Israelites themselves to be special and therifore set apart. To be holy-sanctioned f?y God--means, in the Ushan view, to be sanctioned by Israelites. Through these ideas U shans replace the Y avnean notion of holiness as a quality imposed upon the world by God and manipulated only through physical actions, almost as though it were itself a physical entity. They hold instead that holiness is a reflex of the ideals and attitudes of Israelites themselves. With only minor limitations, Israelites may impose a status of sanctification upon whatever they desire. Their conformity to the requirements of the holy life, further, is determined through reference to their own intention to abide by what they understand to be God's will. Surely, like Yavneans, Ushans hold that God represents the source of all holiness. Yet Ushans depict in God a profound passivity. In sanctifying Israelite life, God acts solely in response to the Israelites' own desires and intentions. In determining the permissibility of an Israelite's actions, God judges what physically has been done only in light of the individual's perceptions and purpose. In their larger message, Ushans repeat exactly what Yavneans before them had believed. Despite the destruction of the Temple, cultic sanctification continues in the Israelite world. It is found now in the hands of common Israelites, who separate from their produce the holy

would be excluded. Clearly, Yavneans may have legislated on a variety of topics that simply were not chosen for inclusion here. Important, however, is the fact that Yavnean legislation existed for each of the topics Ushans themselves choose to talk about. In this regard, the direction and concern of the division are set in the earlier period.

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offerings required by God. The underlying claim is that God remains the proprietor of the land of Israel. Like all landlords, God must be paid a share of the produce, the payment for use of the land. At its deepest level, the Mishnah's concern that Israelites make this payment is an insistence that, despite what earthly events seem to indicate, God remains lord over the land of Israel. Agricultural tithes therefore must be separated and paid. And yet, as we have seen, while the underlying motivation behind the system of agricultural laws remains the same for Ushans as for Yavneans, still, Ushans institute a profound change in their understandings of the specifics of the laws that express that motivation. To these specifics we now turn.

II.

AGRICULTURE IN THE TIME oF

UsHA

Ushan legislation concentrates upon the proposition that the thoughts and perceptions of common Israelites determine the significance of their actions. It follows that, in the Ushan view, God's law of holiness functions primarily as a reflex of the attitudes of Israelites themselves. What Israelites desire to do and that which they perceive others as doing determine the status and meaning of their actions. Israelites' intentions properly to plant their fields, for example, assure that Diverse Kinds of crops will be considered separate. Their own purposes in carrying out field labor in the Sabbatical year determines whether or not, in that year, forbidden work has been carried out. Once food is ripened, it becomes subject to the separation of tithes as a reflex of the Israelites' own desire to use the crop as food. The required offerings, finally, may be separated from this food and maintained in safety only if the Israelite householder is intent upon properly guarding the sanctity of these holy offerings. 2 The ideas reviewed here reveal the U shan notion that the chain of events through which food reaches the Israelite table in holiness depends upon the intention of Israelites to observe God's law. From their vantage point after the failed Bar Kokhba revolt, Ushans recognize that, 2 Tractate Demai adds the further notion that each Israelite is personally responsible for all other Israelites' adherence to the law, such that the community of Israel as a whole should come to embody the ideals proposed by the Mishnah's framers. The specific law of Tractate Demai simply takes into account the fact that the responsibilities the Mishnah's authors wish to impose will not soon be accepted by the majority of the people.

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unlike the original Y avnean claim, things really have changed dramatically from the time when the Temple stood. Perhaps cultic sanctification still exists. Yet Ushans reflect upon the fact that the Temple, the traditional locus of sanctification, no longer stands and that, accordingly, the priests who previously represented God's power in controlling holiness have no concrete function. In this circumstance, Ushans institute the basic changes in perspective that we have seen. If the Temple no longer showers the people with holiness, then, instead, through their own actions and deeds, the people themselves must bring holiness into the world and assure that it properly is maintained. For Ushans, unlike Y avneans, the common Israelite thus becomes the center and focus of the system of agricultural laws. Israelites are made to take responsibility for directing the earthly drama of sanctification. God, the ultimate source of holiness, acts only in response to the call of his holy people. In this way, in the period after the failed revolt, those people come to represent the primary statement that God's holiness still exists in the world. This Ushan perspective rejects the Yavnean claim that Israelites confront an already ordered world, and that holiness, consequently, is manipulated only through concrete actions that transfer its status according to unvarying, physical laws. U shans hold instead that the presence of holiness on earth is a reflex of Israelites' own perceptions that certain objects are set aside and special. God, in this Ushan view, is passive, accepting as holy whatever Israelites themselves determine to be worthy of consecration. Ushans thus come to claim that what is holy is that which Israelites themselves decide should be holy. Holiness is a function of Israelites' own ideals for the proper production and consumption of food. This central point of the Ushan rules appears in each of the Division of Agriculture's five topical sections, to which we now tum. A. Producing Crops under Conditions qf Holiness

Like their Yavnean counterparts, Ushan authorities know from Scripture that growing produce in holiness requires 1) keeping separate from each other different species of plants and 2) not tilling the fields in the Sabbatical year. Unlike Yavneans, however, Ushans propose that compliance with these restrictions is achieved when Israelites perceive their own actions in tilling the soil, planting seed and harvesting crops to be in accord with Scripture's demands. Ushans, this is to say, ignore the

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preset and unvarying definitions by which Y avneans determine proper action. Instead they hold that what counts is the Israelite's personal intentions and attitudes. Adherence to the requirement to keep different species apart, for instance, depends upon the farmer's own sense that he has not mixed together different kinds. It is reflected as well in the fact that, when looking at his field, other Israelites can perceive the different types growing in it to be separate from each other. The Ushan point thus is that God sanctions and deems holy that which Israelites themselves understand to accord with the order in which the world originally was created. Unlike the Yavnean view, which claims that holiness is achieved through observance of set and unchanging rules, this Ushan perspective states that the Israelite's own perceptions of what he has done and his concomitant desire to bring God's blessing upon his fields account for the holiness of the produce of the land. This is the case without regard for the actual facts of how one plants his fields or goes about his agricultural work. The facts are made clear throughout the Ushan strata of Tractates Kilaim and Shebiit. Since I have dwelled upon these ideas in my reviews of each of these tractates, consideration of them here is brief. In Tractate Kilaim, first, Ushans indicate that whether or not different species of produce growing together comprise a forbidden mixture is determined by the Israelite who sows these plants or who observes them growing in a field. Only what Israelites perceive to be a mixture is considered forbidden (Kilaim, ii.C.2: l-2, 7, 9, 3: l ). Indeed, types of plants that comprise Diverse Kinds, such that they may not be planted together, are defined not by botanical categories but on the basis of the individual plant's appearance (Kilaim, l.C.l: 1-3). Diverse Kinds, that is, are defined as what appear to Israelites to be closely related but different species. 3 Determination of Diverse Kinds does not depend upon those facts of botany known to the rabbis. In the same way, a vineyard to which the restrictions of Diverse Kinds apply is defined as that which people generally term a vineyard. Formal definition is rejected (Kilaim, iii.C.5:1; contrast the Houses, iii.A.4:l-3, 5, 6:1). Finally, even a farmer who actually grows together Diverse Kinds is not automatically culpable. Only an individual who intentionally maintains the mixture has transgressed and thereby rendered all of the produce forbidden for consumption (Kilaim, iii.C.7:4-5, iii.D.5:6. 7:6). An Israelite has committed no sin if his actions were not intended. 3

See Mandelbaum, p. 3.

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The theme referred to here is expressed throughout the Ushan stratum of Tractate Shebiit. Ushans there claim that Israelites may not carry out actions through which they intend to enhance the growth of produce during the Sabbatical year or by which they appear to others to be promoting that crop's development. Actions that the farmer does not intend to benefit the crop or which do not appear to others to be forbidden are, by contrast, permitted. As in Tractate Kilaim, the concrete effects of the farmer's labors are not at issue so much as are individual Israelite's perceptions of what they are doing. In the Ushan view, Israelites grow produce and maintain their fields in holiness when, in their own minds, they have complied with God's intentions for the use of the fields of the land of Israel.

B. Conditions under which Produce Becomes Suliject to Sanctification Israelites' desire to make use of the land of Israel in the production of food and, later, their intent to take that food and use it for their own purposes trigger the restrictions of the tithing system. In the Ushan view, that is, the requirement that Israelites tithe and, moreover, their very ability to designate produce as sanctified are functions of their own actions in planting and harvesting. God takes an interest in and demands a share only of food for which Israelites have indicated their own desire. This desire is shown by the fact that the Israelites purposely cultivate the produce upon the land of Israel and that they later harvest it for consumption, storage or processing (Maaserot, i. C .1: 1, 2-3, 4). What grows wild, by contrast, is not subject to tithes, even if the Israelite desires it as food. Since its growth was not subject to the intentions and desires of an Israelite, it never becomes subject to sanctification as an agricultural gift. In the Ushan view, even food that stands within the system of titheshaving been cultivated by Israelites-may not actually be tithed until the Israelite takes it for his own personal possession, either to eat it or to use in a business transaction. God's demand for a share of the produce, that is to say, is understood to be a reflex of the Israelite's own desire to make use of the produce of the land of Israel. In light of this perspective, the majority of Ushan materials in Tractate Maaserot details the conditions under which Israelites are deemed to have acquired produce for their own use, such that they must tithe (Maaserot, iii.C.2:4A-C, v.C.4:3). While the specifics of these rules need not detain us, their larger implications for the U shan notion of holiness must be clear.

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Ushans hold that only objects subject to the Israelite's particular care and use may be designated as holy. Like Yavneans, Ushans hold that God's lien upon food renders that food susceptible to sanctification. Unlike Yavneans, Ushans view God as playing a profoundly passive role in the actual processes through which that lien takes effect, such that the food becomes subject to consecration. Only in reaction to the deeds and desires of common Israelites does God determine that produce grown upon the land of Israel may be or, later, must be designated as an agricultural gift. 4 The rules in Tractate Hallah that appear to be Ushan express this same view. Unlike the Yavnean materials, which claim that all leavened dough is subject to the separation of dough offering, Hallah, i.D.l :8 claims that the offering need be separated only from dough that Israelites themselves deem significant as food. The second pertinent rule concerns mixtures of subject and exempt types of dough (Hallah, iii.D.3:7, l 0). Dough offering need be separated from these only if they have the taste of dough that is subject. The dough's being susceptible to sanctification thus depends upon the Israelite's own perception of whether or not it is the type of dough from which the offering normally is separated. The actual fact that it contains produce usually subject to the offering is not, in itself, determinative.

C. Designating Produce to Be an Agricultural Qffering Tractate Terumot describes in detail the procedures through which the Israelite householder sets aside produce to be consecrated as heaveoffering. Ushans state that the designation depends primarily upon the intention of the individual to impose upon a certain quantity of produce a status of sanctification. What the householder separates, that is to say, takes on the status of heave-offering only if, in removing it from the larger batch, the individual 1) properly formulates the intention to consecrate that produce (Terumot, i.C.l: l) and 2) makes concrete that intention through corresponding words (Terumot, ii.C.3:5). A separation of produce performed without properly formulated and expressed intention leaves both that which was separated and the batch from which it was taken in the status of untithed food. The householder's unintended actions are null.

4

See Jaffee, pp. 3-6.

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The centrality for Ushans of human intention is proven by their claim that individuals deemed to have no understanding (e.g., imbeciles and minors) and therefore no powers of intention may not validly separate heave-offering (Terumot, i.C.l:l). Ushans even go so far as to rule that a designation of heave-offering that does not conform to the formal requirements established in Y avnean times still may be valid. This is the case so long as the householder carried the separation out with proper intention (Terumot, i.C.2:2, 3). In all then, the Ushan view holds that, on the basis of thoughts and deeds, not physical actions, Israelites control what produce and how much of it will become holy. In Tractate Peah, Ushans describe in detail how produce becomes the property of the poor as peah, gleanings, forgotten sheaves and defective clusters. On the surface, these processes are different from the ones through which heave-offering and tithes are designated. This is because, unlike the latter offerings, which are set aside by the householder and given to specific priests and Levites, poor gifts are comprised of produce that is abandoned and left for the poor to collect without interference from the field's owner. Here, then, the householder's intention does not come into play in choosing specific produce to be an offering. Instead, produce becomes the property of the poor when it falls outside of the intentions of the farmer, because he leaves it unharvested, because, during the harvest, it falls from his sickle, or because, after the harvest, he forgets to come and collect it in the field. These differences, which reflect Scripture's own description of what produce constitutes poor gifts, mask important similarities Ushans draw between the designation of these poor tithes and the separation of heave-offering and the Levitical tithe. In the case of poor gifts, as in that of the other agricultural offerings, the processes through which the designation occurs begin with the farmer's actions in harvesting his field. The rights of the poor, like the rights of priests and Levites, constitute a reflex of the farmer's own demand for the ripened produce of his field (Peah, i.C.l :3C-E). This applies even in the case of defective grape clusters which, quite early in their growth, are known by their shape to belong to the poor. Even so, God's lien upon the produce, and, with it, the preemptive right of the poor to their share begin only when the farmer perceives his crop to be valuable as food, such that he begins the harvest. This act of harvesting signals the farmer's desire for his crop and, concomitantly, the designation of the poors' share (Peah, v.C. 7:5, 8). In the same way, in the case of peah, Ushans

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hold that the farmer's own attitude towards his land determines exactly which produce must be left unharvested for the poor. While agreeing with Yavneans that the produce in the rear of the field is to be left as peah, Ushans hold that what constitutes the rear of the field is determined not by geographical boundaries or other physical characteristics but by the Israelite's own perceptions of the land, indicated the way in which he chooses to plant and harvest his property (Peah, i.C.3:4, 5). As does Tractate Terumot, Tractate Peah thus describes the designation of agricultural gifts to be dependent upon the intentions and desires of Israelite householders. They determine when produce may become an agricultural gift and, in certain cases, which produce and how much of it is to comprise that gift. In Tractate Bikkurim, Ushans provide a full, narrative, description of the ritual through which first fruits are identified, designated and carried to the Temple in Jerusalem, where they are presented to the priests (Bikkurim, iii.C). The presence of this topic in the Ushan stratum emphasizes the active role of Ushan authorities in defining how specific ceremonies will be carried out in a perfected Temple-cult. These materials, however, reveal no theoretical stance concerning the processes through which produce takes on the status of an agricultural offering.

D. The Care and Handling

if Holy Produce

Once heave-offering or other agricultural gifts have been designated and separated a new set of problems occurs. So long as the consecrated gifts remain in the Israelite's secular domain, they are liable to be used to some purpose other than their proper one, consumption by priest or Levite. The agricultural gift may, for instance, be mixed or cooked with the Israelite's own food, might be eaten by the non-priest or even planted as seed. Recognizing the potential for these occurrences, Tractate Terumot in particular asks of the culpability of the Israelite who in one way or another mishandles consecrated produce. As we should expect on the basis of what we have seen in other Ushan deliberations, these authorities rule that culpability depends upon the intentions and perceptions of the householder who allows the heaveoffering to be mixed with his own food, eaten as secular produce or planted as seed. In this way Ushans move beyond Yavnean thought, which determines culpability solely on the basis of the physical character of the Israelite's actions. Unlike Yavneans, Ushans hold that the

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Israelite has committed sacrilege only if he intentionally did wrong. Israelites' own perceptions of what they do thus determine the significance of their actions. This Ushan theory appears in several important examples in Tractate T erumot. One concerns a case in which a bin of heave-offering and a bin of common produce are confused, so that it is not known which contains the consecrated heave-offering. If two different people eat the produce in the bins, neither is culpable. Each may claim to have eaten the unconsecrated food (Terumot, iv.C. 7:5-7). The indisputable fact that one of them has certainly eaten consecrated produce is not taken into account. So long as both individuals perceive themselves not to have transgressed, Ushans deem neither of them to be culpable. Perceptions again are brought into play in a case in which an Israelite plants heave-offering as seed. Yavneans, we recall, deem the individual invariably to be culpable, so as to be forced to cultivate a consecrated crop (Terumot, vi.B.9:4). Ushans, by contrast, take into account the intentions of the individual who misused the heave-offering. If he did so intentionally, he must suffer the consequences of his deed by continuing to cultivate the field seeded with heave-offering. He thereby loses both the use of his field and the ultimate enjoyment of the crop, which has a consecrated status. If however the individual unintentionally planted the seed, he may plow it up (Terumot, vi.D.9:1). While he may not make personal use of the heave-offering he planted, he likewise is not held to have transgressed so as to be made to suffer for that which he unintentionally did. As in the previous example, Ushans thus hold that only through their intentions do Israelites encroach upon the holy, just as it is only through their powers of intention that they designate produce to be sacred in the first place. Yavneans, we recall, reject the notion that heave-offering imparts a sanctified status to produce with which it is cooked (Terumot, vii.B.l 0: liE-H). So long as the heave-offering itself can be removed from the dish, the rest of the food retains its unconsecrated status. Ushans (Terumot, vii.C.l 0:1, 3), by contrast, are concerned that, if the heave-offering imparts flavor to the unconsecrated dish, the individuals who later eat that food will perceive themselves as benefiting from the priestly ration. Ushans therefore hold that any time heave-offering imparts its flavor to unconsecrated food, the dish as a whole must be deemed heaveoffering. This does not apply only if the heave-offering ruins the flavor of the other food, such that the Israelites do not desire its taste. Then they may ignore the fact that the food was cooked with heave-offering.

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Even the concrete flavoring power of the heave-offering thus is not always determinative. The real concern of Ushans focuses upon the Israelite's own personal likes and dislikes. The Ushan view that holiness is a reflex of the attitudes and perceptions of Israelites is evident in the two rules of Tractate Maaser Sheni pertinent to this theme. In the case of second tithe, the Israelite exchanges the original tithe for coins. These he carries to Jerusalem for use in purchasing produce to be eaten in place of the original, sanctified, offering. While this is the only proper use of the second tithe-money, Ushans hold that anything that the Israelite intentionally purchases with the coins-including inedibles-takes on the status of second tithe (Maaser Sheni, i.C.l:3, 4, i.D.l:5D-E). Only an unintentional purchase is invalid. Ushans thus give Israelites full power over what will and will not become holy. This view differs substantially from the Yavnean perspective, which restricts the Israelite's power of consecration to foods and coins, which were envisioned by Scripture itself to have the status of second tithe. The second pertinent rule of Tractate Maaser Sheni is comparable to the case in which it is not clear which of two bins contains heaveoffering. Here an individual who finds coins that might have the sanctified status of second tithe is permitted to treat them as secular. This is so unless he is quite certain that the money does in fact have a consecrated status (Maaser Sheni, v.C.4:11, v.D.4:9, 12). The point, as before, is that so long as the Israelite perceives an object not to be consecrated it is deemed for all practical purposes actually to be secular. This view highlights the Ushan notion that, rather than a physical state, sanctification is a reflex of the attitude of Israelites themselves.

E. Eating Food under Conditions qf Holiness Israelites may only consume foods from which all of the required agricultural offerings have been separated. So far as they are in a position to do so, they must also assure that foods others eat have properly been tithed. These notions, which describe the requirements for Israelites' eating of their food under conditions of holiness, come to full expression in the Ushan stratum of Tractate Demai. Indeed, as we have seen, the very creation of Tractate Demai as a systematic essay begins with the particularly Ushan notion that Israelites must tithe both what they eat and all foods that leave their possession. In light of these central concerns, Ushans define membership in a

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group that is set apart from the rest of the people of Israel by its observance of tithing and purity laws (Demai, ii.C.2:2, 3, 4, 3:3E-G, 4, 5, 6). These rules detail first and foremost the restrictions that apply to individuals who wish to assure that all foods they eat have properly been tithed. This is accomplished by establishing firm grounds for determining who may be trusted to state that they have tithed food they are about to sell (Demai, iii.C.4:7), as well as by setting up procedures for the tithing of produce about which there is a doubt whether or not it already has properly been tithed. In light of the requirement that Israelites take responsibility to tithe that which others will eat, considerable attention also is paid to defining the circumstances under which Israelites must in fact separate agricultural gifts from produce that leaves their possession (e.g., Demai, v.C.6:1, v.D.6:7, 8-9, 10, 11). Through these rules U shans state that the ability of any Israelite to eat food under conditions of holiness is a reflection of the responsibility accepted by other Israelites properly to prepare food for consumption. Sanctification of Israelite life thus is made to depend upon the human concerns of mutual trust and responsibility among people working together to build a holy society. In describing a distinct group of individuals who observe all of the tithing laws, Ushans recognize that, within Israelite society as a whole, the rabbinic movement's larger program will not have immediate success. Tractate Orlah provides two more ideas pertinent to this theme. Each of these carries forward the overriding Ushan proposition that the laws of holiness are applied in response to the intentions and actions of common Israelites. The larger point of the tractate is that, as Lev. 19:23 states, Israelites may not consume the fruit of a tree or vine in its first three years of growth. Ushans however narrow this injunction to apply only to trees or vines that Israelites intentionally plant for their fruit (Orlah, i.C.l: 1). A tree planted, for instance, as a fence is not viewed as a "fruit tree" and therefore is exempt from this restriction. The Israelite's attitude towards the tree and not its botanical characteristics thus determine the status of the fruit. Ushans note that, as in the case of heave-offering, produce of the first three years of growth of a fruit tree is rendered permitted if it is neutralized through being mixed with a large amount of permitted produce (Orlah, i.C.l:6). In the Ushan view of Meir, however, neutralization applies only to orlahproduce that has not been processed (Orlah, ii.C.3:6-8). Once householders process food, they are careful to sell or maintain it in discrete and correctly measured quantities. It always is perceived as separate

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from other food with which it is mixed. Neutralization therefore no longer applies to it. Ushans here again view the Israelite's own attitude and intention to be central in determining the status of food. Holiness does not come into being and disappear in accordance with an unvarying set of physical laws but, rather, on the basis of the concerns and perceptions of the common Israelite.

III.

CoNCLUSION

The theory of holiness presented in the Ushan materials holds that, through their intentions and perceptions, human beings define the boundaries of the sacred. On the basis of their own will, Israelites determine the proper conditions for planting and growing food in holiness. They establish what produce may and may not become holy, and they determine the specific conditions under which holiness actually comes to pertain to particular quantities of produce. Israelites even are envisioned as controlling the processes through which consecrated produce returns to the secular. What is important is that, in assigning these powers, Ushans claim that the character of the physical actions of the Israelite generally is not of central concern. This is the case except to the extent that those actions reveal the individual's intentions and desires. For the point of the Ushan stratum as a whole is that, through their will, Israelites determine what foods are to be treated as holy. In the same way, in the Ushan view, Israelites improperly handle or wrongly use holy produce, so as to be culpable for sacrilege, only if they actually perceive themselves to have done what is wrong. Whether or not an individual actually misuses holy produce is not so much of concern as are his own perceptions of what he has done. Finally, the ability of Israelites to eat their food under conditions of holiness is seen to depend upon the actions of the community as a whole which must, according to Ushans, be intent upon preparing food for consumption in accordance with the proper rules of holiness. Through these laws Ushans reveal their view that God blesses and sanctifies all that Israelites themselves deem worthy of sanctity and want to be holy. Holiness does not continually emanate from God and behave in accordance with unchanging norms and physical laws. It comprises, rather, a reflection of the Israelite's own will. In this Ushan view, to be sanctioned by God, so as to be holy, actions must appear to the Israelites themselves to accord with the divine will. No preset and

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unvarying laws determine right and wrong, holy and profane. Through their own conscious efforts, rather, Israelites build a society conceived in holiness. The implication of this U shan perspective is that common Israelites play a central role in giving meaning to their world and in lending significance to mundane and ordinary things. Israelites, Ushans hold, face a disorderly world in which their actions are accorded no preordained significance. Inherently they are neither right, nor wrong, holy nor profane. Instead, Israelites themselves must define what is consistent with God's larger plan for the world. They do this through their personal intention to sanctifY their production and consumption of food. That intention determines the status and meaning of every action Israelites carry out. Israelites thus impose order and meaning upon the world. In the Ushan view this order, defined by the ideals and perceptions of common Israelites, is identified as the objective, God-ordained, order in the world. Common Israelites therefore represent the measure of holiness on earth. Human thought and action defines what does and does not accord with the divine will. Israelites have the central role in designing, not just implementing, God's plan for a perfected-and therefore holy-world. The extent to which the Ushan view differs from that found in the Yavnean materials in the Division of Agriculture should already be clear. As our review of the Yavnean laws indicated, Y avnean authorities understand the world to contain a preset and unvarying order to which Israelites must conform. It is left for us now to see the extent to which the Ushan perspective likewise takes initiatives unforeseen in the Biblical sources that stand behind the legislation in the Division of Agriculture. Mandelbaum, A History qf the Mishnaic Law qf Agriculture: Kzlaim, points out Scripture's own understanding of the significance of the agricultural restrictions concerning Diverse Kinds. His discussion of the meaning within the Priestly Code of these particular laws serves both to explain Scripture's understanding of holiness in general and to contrast that understanding with the view of the Ushan materials we now have reviewed. I therefore cite Mandelbaum's discussion at length (pp. 3-4). In the following, Mandelbaum refers to the meaning of Lev. 19: 19: "You shall keep my statutes. You shall not let your cattle breed with a different kind; you shall not sow your field with two kinds of seeds; nor shall there come upon you a garment of cloth made of two kinds of stuff."

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[A) study of the context of the rules in the Holiness Code of Leviticus yields important knowledge of P's views of the laws of diverse-kinds. Leviticus 19 consists of a list of rules headed by the command You shall be holy; for I the Lord your God am holy (Lv. 19:2). According to the catalogue's redactor, then, observance of the laws of diverse-kinds, like observance of the other rules of the catalogue, makes Israel holy. The laws are therefore interpreted in the context of the priestly understanding of the relationship between order and holiness. By examining this relationship we shall be able to put into perspective Mishnah's divergence from the views of Scripture. In the view of the priestly circles which stand behind P, order is a precondition of holiness. This notion is clearly reflected in P's account of the creation (Gn. 1: l-2:4a). P describes the making of a well ordered, hierarchical world. Each type of creation is brought forth in order of ascending importance, with (among living things) plant life first (Gn. 1: 11-12). All living things, furthermore, were created each according to its kind (Gn. 1:11-12, 21, 24-25). Creation is thus an act of ordering, the purpose of which is to make the world perfect and thus prepare it to be made holy. The actual act of the sanctification of the world then takes place on the Sabbath (Gn. 2: 1-3). The point of P's laws in Leviticus, then, is to prevent the confusion of those classes and categories which were established at the creation. P thus commands man to restore the world from its present condition of chaos to its original orderly state, and so to make the world ready once again for sanctification. Although Mishnah takes up P's general interest in order, it clearly diverges from P's view that the task of man is to restore the original order of creation. For, as we have already stated, Mishnah claims that it is man, and not a set of already established rules, who decides what is orderly and what is confused.

While concerned specifically with the restrictions of Diverse Kinds, Mandelbaum's comments have clear implications regarding the other agricultural restrictions. For as we have seen throughout the Division of Agriculture, Ushans' main claim is that, in all matters related to Israelites' agricultural activities, their own perceptions and intentions are central in imparting meaning and significance to their world. The continuation of Mandelbaum's discussion, which concerns the meaning, in the years after the Bar Kokhba revolt, of the Ushan claims for the centrality of human intention, likewise is instructive for our present purposes. Again, therefore, I cite Mandelbaum's comments (pp. 4-5) at length. Mishnah's divergence from P becomes even more interesting when one takes into account the historical context of the two documents. Both P and Mishnah take shape in the aftermath of historical catastrophes. P

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was compiled during and after the exile which followed the destruction of the First Temple, while Mishnah was redacted primarily after the failure of the Bar Kokhba rebellion (132-135 A.D.), a disaster which erased the Jews' last hope of regaining and rebuilding the Temple. It is thus noteworthy that both P and Mishnah respond to these similar historical circumstances with an interest in restoring order to a world which to them appears to lie in utter confusion. It is striking, therefore, that these two documents should disagree concerning the nature of the order which they intend to restore. What is important to P is that the world would be returned from its present condition of confusion to its original, ordered state, as God had created it. P thus responds to the crisis it perceives by calling for a return to an unchanging, perfect world. By contrast, Mishnah underlines man's power to impose order upon the world, a capacity which is unaffected by historical events. In spite of the occurrence of catastrophes and disasters, man retains the ability to affect the world around him through such ordinary activities as sowing a field. While P has man confront confusion by reconstructing the ideal order of creation, Mishnah regards man as imposing his own order upon a world in a state of chaos, and so, in effect, as participating in the process of creation. Mandelbaum's comments point to the important relationship between the historical context in which Ushans worked and the perspective on the world their law presents. The Division of Agriculture comes into being and speaks at a time in which the earthly signs of God's power and dominion are gone. The Temple is destroyed and the land of Israel remains in the hands of foreigners, with little hope for its retum to Israelite sovereignty. Like Yavneans, Ushans reject the possibility that these earthly events mean that God, and God's holiness, have departed from Israel. Yet, unlike Yavneans, Ushans are not so naive as to claim that nothing has changed from the time that the Temple stood. The Temple and its cult once projected upon the earth an image of a Godordained order. With these things destroyed, Ushans locate a new locus for order and holiness. They do this by concentrating upon the people of Israel themselves, claiming that they have the power to create a world of sanctity. For Ushans, Israelites who perform commanded actions-separating tithes, planting their produce in accordance with Scripture's demandsdo not simply adhere to God's plan for the world. To the contrary, in performing these mitzvot, Israelites themselves create a world envisioned as that desired by God. In the Ushan perspective, the authority of God thus is mediated by Israelites' own power. For Israelites determine what God sanctions and prohibits, often doing so in direct contradiction to what Scripture's passages seem to make clear.

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The Ushan notion of the religious importance of human intellect is familiar from later developments in rabbinic thinking. These state explicitly that, having been recorded in Scripture, God's revelation now is subject to human evaluation and interpretation. Its meaning is determined only through Israelites' own thinking, safe from God's intercession into the human realm. Human investigation and reason, not even God's active signaling of what he desires, charts the proper course for commanded behavior. 5 Within the context of Scripture's thought, this rabbinic perspective is unexpected and perhaps absurd. For according to it God loses to the Israelites themselves the exclusive authority that, in Scripture, he demands as creator and Lord. Ushans certainly agree with Scripture that the validity of their legal system is a function of the existence of God, who chose Israel and commanded that nation's activities. What is new and important, rather, is the Ushan claim that definition of conformity to these norms is in the hands of Israelites who, through personal evaluation and application, determine the exact form that adherence to the mitzvot should take. In rabbinic times, Israelites become the center and focus of the system of holiness that, previously, had depended only upon God, priest and Temple. Within this system, Ushans thus describe common Israelites as an abiding symbol that the cultic sanctification that existed in the time of the Temple still exists in the world. This means that God still rules over and consecrates the people and land of Israel. In the Ushan view, God does this in response to the intentions and perceptions of those Israelites, who work to plant, harvest and eat their food in holiness. Through these actions the people have the ability themselves to create a world of sanctity. Through their intention and perceptions they thus may deny those devastating events of history that have taken from them the concrete signs of God's power that once were found in their midst.

5 The famous story at b. B.M. 59b makes this point explicitly, describing Joshua's citation of Dt. 30:12 ("It is not in heaven ... ") to reject supernatural proof of a legal point Eliezer claims is revealed law. Note that, while cited in the names of early authorities, there is no evidence that this story circulated before Talmudic times, when it is first cited. Note too that Joshua attributes to his proof text a meaning hardly intended by Scripture. Deuteronomy's point is that the law already has been given and is available on earth, fully explained for all easily to follow. Contrary to Joshua's claim, it does not indicate that, having been given, the law is subject to human, but not divine, interpretation.

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HISTORY OF THE MISHNAIC LAW OF AGRICULTURE CONCLUSIONS

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CONCLUSIONS

The analysis of the formation of each of the Mishnah's tractates, found in Chapters Two through Eleven, provided a picture of the content and overarching concern of this division as a whole. Chapters Twelve through Fourteen then summarized the contributions to that whole of specific generations of rabbinic authorities. In the concluding chapter, accordingly, I first list this study's results that pertain to the Division of Agriculture as a redacted whole. Then I examine what the historical development of that law teaches about the growth of nascent rabbinic Judaism. 1

I.

THE DIVISION AS A WHOLE

1) The chapters that preceded have shown that the materials in this division have no identifiable context or significance prior to their inclusion in the Mishnah. The Division of Agriculture, that is, is not simply a collection of random laws, deriving from Israelite antiquity and transmitted to Mishnaic rabbis who, in turn, formed them into the tractates that stand before us today. The Mishnah's legal system, rather, forms a cogent whole, an independent creation of individuals who, in the first centuries, conceived and carried out a new and unique program of legal inquiry. The Division of Agriculture indeed contains both the basic ideas that instigate the growth of the Mishnah's law and the clear signs of development in legal thinking that led finally to division

1 Since my results derive from a statistically significant percentage of the Mishnah's materials, it is not surprising that they parallel the results of Neusner's studies of the five other divisions of the Mishnah. I refer in particular to his conclusions regarding the late provenance of the anonymous materials and the origins of Mishnaic law in rabbinic authorities' independent reading and evaluation of Scripture, not in their transmission of known laws and customs or their turning to priests or other individuals who may have preserved the practices carried out in the time of the now destroyed cult. In terms of its larger focus upon the powers of the common Israelite in defining the order and meaning in the world, this division fits entirely within the frame of Mishnaic discourse Neusner describes in his Judaism: The Evidence qf the Mishnah.

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as we know it. Were we to claim that the law as a whole, or even significant parts of it, were the creations not of the Mishnah's rabbis but of Israelite antiquity, it would be difficult to explain the basic level of initial inquiry found in the Yavnean stratum or the fact that almost all of the Ushan materials take up questions first posed by Yavneans. This means that, even if the Mishnah's rabbis did inherit certain laws or concepts from the Second Temple period, their own work in developing and structuring these materials is so new and innovative as completely to efface all signs of the original inheritance. Let me explain. In the period before 70 little is reported concerning the law of agriculture. What is discussed concerns basic issues of definition. This indicates the Mishnah's authorities' preference to turn directly to Scripture as an independent source of authority, rather than to cite tithing practices as they actually were carried out in Second Temple times. This same basic level of inquiry is taken up by those authorities who live after the first war with Rome. Yavnean authorities define basic terms and outline the central ideas needed to create an operational system of tithes. In doing this, Yavneans assume as fact only the few details they inherited from pre-70 rabbinic traditions and ideas taken directly from Scripture, the document believed by all the people of Israel to contain the revealed word of God. There is no evidence that these authorities depended upon other traditions from Second Temple times. As in the preceding generation, those who worked after the Bar Kokhba revolt assume as fact only the laws created in the Yavnean period or taken directly from Scripture. They do not refer to other laws or practices that appear to have developed in the long period from the conclusion of Scripture until the beginning of the rabbis' own work. For the first time in this stratum, further, we find extended discussion of the notion, central to the Mishnah, that all matters of law are judged in light of the intentions and perceptions of common Israelites. Depending upon and building the corpus of laws first legislated at Yavneh, there again is no evidence that this central notion of this division is the product not of the Ushan period but of Israelite antiquity. Our ability to identify both a starting point, in the period before 70, in thinking about the law of agriculture in general and to point out a developing agendum of concerns and attitudes towards the law indicates that the Division of Agriculture represents a creation of the first centuries, not an inheritance of ancient laws that the Mishnah's authorities simply collected and placed in sequence. The Division of Agriculture

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is the creation of those individuals who the Mishnah itself cites as the authors of its laws. 2 2) Conclusions regarding the temporal provenance of the Mishnah's law apply to the anonymous material just as to the laws and statements attributed to named authorities. Analysis of the logical unfolding of the law indicates that anonymous rules generally depend upon legal considerations or facts known originate with specific, named authorities. These anonymous statements therefore cannot derive from earlier than the period of those named sources, whose ideas they take up and expand. In the vast majority of cases, in fact, the anonymous materials parallel or develop U shan concerns. This shows that the anonymous law derives from late in this division's development. These findings are contrary to what past students of the early rabbinic literature claimed. On the assumption that the Mishnah embodies laws from prior to the first centuries, many of these scholars believed that the anonymous materials had to be among the most ancient found in the Mishnah. 3 Our study of the unfolding history of the law proves that this is not the case. 3) In the Division of Agriculture, the Mishnah's authorities present a careful essay designed to facilitate application of the agricultural law. The division, that is, is not a random collection of topics and facts but a systematic treatment of all topics relating to Israelites' planting, harvesting, and eating of produce of the land of Israel. 4 Decisions concerning what this division should talk about therefore seem to have come before the actual work of legislation begun even at Y avneh. As a result, by the end of the Yavnean period, all of the topics and concerns that would interest the Mishnah's rabbis were in hand and had received some consideration. Yavneans seem to have instigated the predominant interest of this division with the issue of sanctification, an interest taken up and developed to its logical conclusion in U shan times. This overriding interest in sanctification perhaps explains why this division includes

2 This understanding of the Division of Agriculture as a creation of the first centuries has important implications as we turn, in the second section of the conclusions, to the meaning of the rabbinic system of tithing within its own historical context. 3 See the works cited above, Introduction, note 5. 4 For ease of reference, the chapters in the body of this book are arranged according to the order of the tractates in manuscripts and printings of the Mishnah. See, however, the introduction to this volume, in which I list the tractates according to their contribution to the topical unfolding of the division as a whole.

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tractates on agricultural gifts that are sanctified, but not on the central gift-first tithe-that has an unconsecrated status. 5 4) Along with the narrowly defined topical concerns of the Division of Agriculture, it is striking to recall the extent to which authorities in each of the Mishnah's formative periods explore a single theoretical issue within the set of topics under consideration. The Y avnean material as a whole details matters of definition. Ushans then take up the role of human motivation and of extenuating circumstances. This means that this division is the creation of groups of individuals who, in each period, worked together upon a carefully conceived program of inquiry. 6 5) A theology unique to the Mishnah, in contrast to the ideals of Scripture, develops in the period following the Bar Kokhba revolt. Ushans formulate notions of sanctification that significantly distinguish the Mishnah's ideology from that of Scripture. They do this by advancing the theory that Israelites motivations and intentions determine what is holy and what is secular, what is permitted and what is forbidden. The Ushans thus move far beyond the Yavnean theory-implicit in Scripture itself-that powers of holiness devolve upon God in heaven and upon the priests on earth, and that holy and profane, right and wrong are determined by laws external to individual Israelites. 6) The preceding comments highlight the fact that, in the formation ofpost-destructionjudaism, the Bar Kokhba revolt, and not the destruction of the Temple, signifies the major watershed in the history of rabbinic law. The fact should not be entirely surprising. Historians have pointed out the significance of the failed Bar Kokhba revolt as the 5 Treatment of poor tithes, which are not consecrated, occurs in this division as a function of the discussion of how specific produce comes to have the special status of an agricultural gift such that, for instance, it is not itself subject to the separation of other offerings. Poor gifts form an interesting part of this discussion, insofar as their designation, unlike that of all other offerings, depends upon two individuals, the householder-as usual-but also the poor, who complete the designation of the offering by finishing the harvesting and gathering of the food. First tithe, by contrast, is subject to no special rules regarding its designation and further is not even itself totally exempt from the separation of agricultural offerings, since the Levite must separate from it heave-offering of the tithe, for the priest. 6 As noted above, Chapter Fourteen, note I, the work of redactors, who chose which materials would be preserved in this document, obviously contributes to the impression that the Mishnah's authorities as a group worked from the start upon a carefully conceived program of inquiry. However this might be, it remains clear that, throughout the topically diverse materials found in this division, an overriding theory of agriculture is formulated. This means that, whatever the specific role of redactors in organizing and formulating the Mishnah's materials, the raw traditions with which they worked themselves evidenced a great degree of internal consistency.

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turning point in the attitude of Rome towards the Jews and in the Jews' own perceptions of their place within the world and their condition as a nation. Clark, p. 273, for instance, points out that, after the first war with Rome, the "official attitude towards the Jews had been surprisingly lenient. No measures of reprisal or repression were taken and no hindrances were put in the way of Jews' exercising their religious customs either in the land of Israel or elsewhere." Clark (p. 275), Smallwood (p. 346) and Schurer-Vermes-Millar (vol. 1, pp. 521 ~522) note further that, in this period, the Jews even had access to the Temple mount. Clark even argues that Jews could have-and perhaps did-continue the sacrificial cult in this period, a fact that Josephus (Ant. iii, 224~36) and other sources seem to suggest. The effects of the Bar Kokhba revolt were decidedly more devastating, as Schurer-Vermes-Millar point out (pp. 553~555): The whole of Judaea was practically a desert. Fifty forts were destroyed and 985 villages, 580,000 Jews fell in battle and those who succumbed to illness or starvation were uncounted .... In Jerusalem the plan conceived already before the war was put into effect; the city was turned into a Roman colony with the name Aelia Capitolina. To ensure the permanence of its purely pagan character, Jews still residing there were driven out and gentile colonists settled in their place. From then on no Jews were permitted enter the city area; any Jew seen there was punished with death. [The city's] constitution was that of a Roman colony ... The image of a pig is said to have been carved on the southern gate of the city, facing Bethlehem. The main cult of the city was that of Jupiter Capitolinus, to whom a temple was erected on the site of the former Temple of the Jews .... Besides Jupiter, the following deities of the city are represented on coins: Bacchus, Serapis, Astarte and the Dioscuri.

In light of these historical facts, we need not be surprised that in the period after the failed Bar Kokhba revolt, we find the important theoretical developments of this division and, indeed, the final formulation of the Mishnah as a whole. This period represented the first point after the destruction of the Temple at which all live expectation for the re-institution of the Temple cult seems surely to have died.

II. THE

HisTORY OF THE MisHNAIC

LAw

oF AGRICULTURE

The preceding six points delineate the character of the Division of Agriculture as a historical document of the first centuries. With these facts in hand, we turn now to conclusions 1) regarding the character

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of the Mishnah's law of agriculture in each of its formative periods and 2) concerning the overall development of the Mishnah's rabbis' legal thinking. Before 70 and in Yavnean times, the Mishnah's authorities concerned themselves with basic questions of definition. They gave concrete measurements that define a field, delineated which field labors may or may not be performed in the Sabbatical year, outlined for the case of each tithe and agricultural offering the quantity of produce to be taken and indicated how the offering is to be set aside. In this way these authorities, predominantly in the period of Yavneh, established the parameters of the agricultural law and delineated exactly what is expected of the individual Israelite. A single theory of law informs these materials. Yavneans consistently offer definitions that exclude attention to the motivations or perceptions of the Israelites themselves. The reasons or perceptions that lead an individual to act, that is to say, have no bearing upon the permissibility of that behavior. The status of a deed, rather, depends solely upon the character of the concrete actions through which it was carried out. It does not matter to Yavneans why an Israelite collects stones in his field during the seventh year. The fact is that, in doing so, he makes possible the cultivation of that land, which is not allowed during the Sabbatical. The actions therefore are forbidden. This is the case even if the individual actually wants only to build a stone fence, a deed that itself is permitted. Along these same lines, Y avneans define physical entities in light of their shape and form, with no regard to the use to which Israelites intend to put them. A field, for Yavneans, is demarcated by geographical boundaries, by hills, streams or trees that set off one area of land from the adjacent lots. In this perspective the farmer's own actions in choosing to reap one area as autonomous are immaterial. Geographical boundaries, not the farmer's use of the land, determines where on his property the farmer must set aside peah. As I detailed in Chapter Thirteen, these ideas reveal the Yavneans' understanding of the existence of a preset order in the world, of an objective reality separate from any individual's perceptions of how things are or should be. Correct acts are those that conform completely to the ideal. Behavior, not intention, counts. The result of the action, not its underlying motivation, is determinative. In turning to the Ushan materials, we found a clear and consistent development of the Y avnean ideal. U shans analyze all actions in light of the intentions of the individuals who perform them and of the

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perceptions of those who witness and interpret them. The permissibility of field labor in the seventh year therefore depends upon the Israelite's intentions in carrying out the work. So long as the individual does not intend to break the rules of the seventh year and so long as he works in a way that prevents others from assuming that he proposes to break the law, that which he does is permitted. In the same way, the effectiveness of the individual's actions in separating heave-offering depends upon the intention with which the separation is carried out, not upon the character of the physical actions by which the deed is accomplished. And finally, Israelites' own perceptions define what is orderly and distinct or disorderly and mixed together, so as to be permitted or forbidden under the laws of Diverse Kinds. Unlike Yavneans, Ushans recognize no order in the world other than that imposed by Israelites who, through their own intentions and perceptions, give meaning to their activities in planting, tilling and harvesting produce on the land of Israel. Study of the law of agriculture thus reveals a clear development from the earlier to the later period. The Yavnean period's concern for the facts of the matter is transformed, in the Ushan generation, to an interest in the human elements of action and perception, to a concern for the circumstances under which an individual does something and to an interest in the perceptions others have of what that individual has done. Yavneans examine only the physical character of any activity. U shans concentrate upon motivation and extenuating circumstances. The implications of this development for our understanding of Mishnaic law must now be explored.

III.

THE DEVELOPMENT OF A LEGAL SYSTEM

Legal development of the character I have identified in the Division of Agriculture is not unique to that document. In particular, scholars of the medieval period have pointed out similar developments in medieval law. 7 In these developments, inattention to motive and circumstances gives way, in the growth of the legal system, to a set of laws that take carefully into account the human elements that explain specific actions. For the case of medieval law, this development is described by Charles

7

A complete list of sources is found in the bibliography in Radding.

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M. Radding, "Evolution of Medieval Mentalities: A Cognitive-Structural Approach." Radding's description of the growth of medieval law clarifies what we have seen in Mishnah's Division of Agriculture. I therefore cite Radding's description in full (pp. 5 78~5 79): [In the period preceding the twelfth century] monks and patrons alike believed that piety demanded only the observance of a precise daily routine, and as late as the eleventh century they considered the performance of liturgical ritual to be the essence of monastic dedication. The confusion-perhaps one should say interchangeability-of intention and behavior is also evident in secular law. In the Leges Henrici Primi of 1114-18, drawn primarily from Anglo-Saxon codes, the compiler discussed homicide---in scattered fashion through many different sectionswithout differentiating among intentional slayings, deaths caused by negligence, and those resulting from unavoidable fault. Generally, the penalty for homicide was owed "in circumstances in which a man cannot lawfully swear that a person was not through his agency further from life or nearer to death." The compiler included cases that seem strange to us: "If anyone sends for a person and the latter is killed while coming; if anyone, when summoned to a place by a person, suffers death there, if anyone, being brought to witness a public execution of a wild beast or a madman, incurs some injury at their hands; if anyone entrusts a horse or other thing to a person and thence some harm befalls him." The explanation of these rules, according to the compiler, was the maxim qui inscienter peccat, scienter emendet. who unknowingly commits a wrong knowingly shall make amends .... Few questioned these legal or monastic practices for the six centuries before 1050. Mter that time, however, these rules and assumptions were increasingly challenged and discarded: the law described in the Leges Henrici Primi virtually disappeared in the half century following its compilation; the Cistercians abandoned oblation [that is, the previously widespread custom in which young children, unable to commit themselves to life as monks, were in all events turned over to be raised in monasteries] around 1100 and it was moribund well before the Fourth Lateran Council finally prohibited it in 1215. In each case change was directed towards greater concern with the interior aspects of human nature. Because monasticism and law could only function with the support of medieval elites, these shifts also indicate changes in the collective mentality of European society.

The development of attitudes towards culpability in medieval law exhibits the same pattern of growth found in the Division of Agriculture. In both legal systems an early view that ignores motivation gives way to a later understanding that takes the human element to be central. While the materials before us in the Mishnah do not refer to homicide, the example of oblation does show how close in character is the shift

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Radding describes to the development in the laws before us. Since oblates had not, of their own accord, chosen to become monks, "high standards of asceticism or spirituality was hardly possible in their case" (p. 578). Later medieval law rejected the formalism inherent in such individuals' performance of their liturgical responsibilities, deeming priestly ministrations performed without proper intention to be invalid. This is reminiscent of Ushan authorities' insistence that, to be valid, the designation of heave-offering must be carried out by an individual who has formulated the intention to consecrate that which he separates as the priest's share. Both the later Mishnaic law and the medieval legal thinking to which Radding refers thus come to consider as invalid any actions performed without proper consciousness. In light of the parallel in medieval law, interpretation of the Mishnah's legal developments is shown to be a problem of explaining in general terms the reasons for growth of this character in obviously unrelated cultural, religious and political environments. Radding states the interpretative problem clearly (pp. 5 79-580): These trends in mental attitudes have been examined by many historians-among them Fredrich William Maitland, Dom David Knowles, Marie-Dominique Chenu, R.W. Southern, and, most recently, Colin Morris-but none has succeeded in giving an adequate account and many have retreated to vague generalities. Sometimes the matter has simply been sidestepped by indefinite references to "social and economic change." Another approach has related the new ideas in law and religion to an intellectual renaissance of the eleventh and twelfth centuries, on the theory that the innovations were connected with the wider use of reason in human affairs. But more intellectual activity does not necessarily mean different thoughts. Equally plausible is the argument that dissatisfaction with old attitudes stimulated the growth of scholarly debate. The changes also have been attributed to the new institutions of the twelfth century ....

The problem as Radding sees it is the difficulty of proving a connection between a shift in mental attitudes and vague changes in social, political and intellectual environment that could, after all, lead to a variety of different legal or philosophical responses. Radding therefore does not search for specific factors within the milieu of the eleventh and twelfth centuries that would explain the legal growth that he describes. Instead, he turns to the work of cognitive psychologists in order to show the extent to which both the earlier and later attitudes found in these legal systems represent central stages in the growth of human thinking. The point for Radding is not to prove that the development

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from lack of interest in intention-that is, moral realism-to a concern for the human elements that explain action occurs in all civilizations. Radding hopes, rather, to show that both types of thinking are usual for people in general, such that we should not be surprised to find them alone or in historical juxtaposition. Radding's inquiry again instructs us as we explain the rabbinic legal system. We therefore continue to follow his argument (p. 582): Piaget pointed out that the lack of interest in intention exhibited in primitive law resembles the attitude toward rules-called "moral realism"that is typical of children in all societies. According to Piaget, moral realism has at least three features: (1) the belief that any act that shows obedience to a rule is good and that any act that does not conform is bad; (2) the rule is not to be taken as something to be judged and interpreted but as something that is given, already made and external to the mind, so that the letter and not the spirit of the rule is obeyed; and (3) acts are evaluated in terms of their conformity with the rule and not according to the motive that prompted them.

The notion that authority and doctrine are exterior to the individual's mind, such that they must be taken literally and uncritically begins to change when children reach the age of about ten. Then, to use the example of their attitudes towards play, they see rules not as "sacred and untouchable," but as validated by agreement of all players (p. 583). "In short," as Piaget put it, "law now emanates from the sovereign people and no longer from the tradition laid down by the Elders." ... This less rigid attitude toward rules is founded on an increased ability to understand the other person and to cooperate on the basis of mutual development of subjective responsibility: "When the child is accustomed to act from the point of view of those around him, when he tries to please rather than obey," then "he will judge in terms of intentions. So that taking intentions into account presupposes cooperation and mutual respect."

The two stages Piaget points out in attitudes towards law and authority resemble the stages in the development of the law of the Division of Agriculture. The Yavnean perspective, which views Scripture's restrictions as preset and unaffected by circumstance, equals the attitude of younger children, who judge matters in terms of the letter of the law and the concrete effects of action, not on the basis of the perceptions or intentions that lead to the specific behaviors. In the same way, the Ushan perspective is comparable to that of older children and adults, who look for the intent of the law and who determine the morality of an action in light of its conformity with that intent.

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The preceding descriptions are not intended to argue that the evolution of culture and society parallels the growth of thought in individual human beings. I do not mean to say, that is, that phylogeny recapitulates ontogeny. Radding is careful to note that psychological theory can be applied to individual people alone but not to societies as wholes. "Societies do not possess a consciousness similar to that of an individual and capable of maturing" (Radding, p. 595). Indeed, the notion that the growth of cultures necessarily parallels that of human beings is clearly disproved by the fact that in many known instances of growing legal and cultural systems, the growth that we have seen in Mishnaic law and that Radding has pointed out in medieval society is lacking. He notes, for instance, that "the history of late Roman culture might show a reverse trend-from communitarian to authoritarian conceptions of morality" (p. 595). In the same way, the Hebrew Bible, which the rabbis read so closely, itself contains important distinctions between intentional and unintentional acts, for instance, in providing special rules for manslaughter (Num. 35:9-20) or in noting, Lev. 22:14, that certain rules apply only to an individual who unintentionally eats a holy thing. The approach to the law represented here was largely rejected at Y avneh, except for the specific cases about which Scripture already had spoken and for the uncharacteristic views of certain Yavneans, e.g., Joshua, at Terumot, iv.B.8: 1-3. The parallel pointed out between the medieval developments analyzed by Radding and what we have seen in the Mishnah therefore cannot be construed to claim a normative development, such that all societies are expected to grow in the same way that moral sensibilities arise in children. The lesson taught by the parallel in the growth of moral thinking in children and the development of the Mishnaic law of Agriculture must therefore be narrowly defined. This parallel teaches first and foremost that both the Yavnean and the Ushan approaches to the law are natural within individual human beings and therefore are expected within the conglomerates of individuals that comprise societies. Finding, first at Yavneh and then at Usha, a predominance of a certain mode of thought furthermore points to the close correspondence between the mentalities of individuals who live in a common social, cultural and political environment. The shared perspectives on law indicates the extent to which rabbis, first at Yavneh and then at Usha, developed a communal intellect and common ethical perspective. At the same time it is important to recognize the rarity-and therefore significance-of large scale shifts in group mentality. "Usually, of

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course, one generation, through its interactions with the next, educates it into the same ways of thinking, just as the intellectuals and leaders of the twelfth century-by the institutions they created and the questions they posed, and the students they taught-assured that their concerns would be those of subsequent generations" (Radding, p. 595). In light of this, historical context-in terms of social, political and economic growth-must certainly be brought into play to help to explain such large-scale developments as we have seen, for instance, in the Mishnah. For in an extremely short period of time, the Mishnah's masters shifted entirely from one pattern of legal thinking to a quite different one. In light of this consideration, Chapters Thirteen and Fourteen have located within the historical context of the Mishnah's own time reasons for the shifts that we have seen. This approach, which takes seriously the political context in which the Mishnah's rabbis worked, is familiar from recent studies of each of the individual tractates in the Mishnaic Division of Agriculture. These too have pointed out a connection between the destruction of the Temple, in 70 C.E., the failed Bar Kokhba revolt, of 135, and the formation, within the Mishnah as a whole, of a system of law that focuses upon the power of individual lsraelites. 8 My own comments concerning Tractate Terumot (The Priest?J Gift in Mishnah, p. 7) illustrate this approach to the interpretation of the Mishnah: To make the claim of God's continuing presence, the tractate ... focuses upon the actions and responsibilities of the Israelite who sets aside and protects the priestly due. By describing these actions and responsibilities, it makes the powerful point that even with the Temple gone, cultic sanctification remains. This means that God himself still rules over the people and land of Israel. He moves in response to the intentions and perceptions of Israelites who separate the offering which he mandated. This message is poignant. For as is clear, with the Temple destroyed and the Land defiled, these intentions and perceptions were all that remained to deny the events of history and affirm God's Lordship.

The present study's evidence for the historical growth and development of the legal thinking found in the Mishnah allowed a careful nuancing of the theory just summarized, so as to take into account the perspective of the Mishnah's Yavnean authorities. Chapter Thirteen suggested

8 See Jaffee, pp. 3-6, Mandelbaum, pp. 3-4, Brooks, pp. 35-36 and Newman, pp. 17-20.

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395

that we take seriously the fact that, in the period immediately following the war in 70, Israelites expected the imminent rebuilding of the Temple and the return of the sacrificial cult. Life thus was expected soon to return to exactly as it had been before the destruction. This explains the apparent insistence of Y avneans that nothing is changed from the time when the Temple stood. Yavneans, that is, continue to see a preset and hierarchical order in the universe, as was represented by the presence in their midst of the Temple and the God ordained cult that was carried out in it. Only with the Bar Kokhba revolt, the first point at which the lively expectation for the Temple's being rebuilt could not be maintained, did the circumstances ripen for new theological developments. These placed common Israelites at the center of Israelite theology by claiming that, through their own perceptions and intentions, Israelites impose meaning upon a world otherwise seen to be in a state of chaos. This approach to understanding the Mishnah suggests an important avenue for future consideration, for it begins to answer the basic questions that historians must ask concerning the relationship between social and legal developments and the larger historical contexts in which those developments occur. At the same time, specific methodological problems must be outlined, putting clearly into perspective the stature of this initial interpretive suggestion. These problems result from the character of the written evidence upon which we depend for our only access into the philosophical and social world of the Mishnah's authors. For the rabbis themselves work hard to hide all evidence of the effect outside events and individual personalities might have had on their work. We therefore know almost nothing about the character of individual rabbis. Their philosophies, further, are revealed to us only through their legal work, which itself never explicitly indicates the underlying reasons for specific statements or laws. Since the very goal of the rabbis who created the Mishnah was to efface all sign of historical background and individual philosophy, attempting to interpret the Mishnah in light of the political background of its own day presents a serious methodological problem. William Green, "Reading the Writing of Rabbinism" states the methodological problem clearly (pp. 194-195): The obsession of the Mishnah with halakot pertaining to the Temple at a time when it must have been clear that the cult was gone forever certifies that the document speaks of a world that no longer existed. The disjunction of the Mishnah's interests and the evidence of the historical record, therefore, contributes a fundamental component to the understanding

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and interpretation of the document as a whole. It establishes beyond a doubt that the substance of the Mishnah is not mimesis, but fiction, and this knowledge helps to direct our assessment of its preoccupations and ultimate purposes. But the broad political context does not explain the details of the text, nor does it show how these two events [that is, the destruction of the Temple and the Bar Kokhba revolt] affected the form of the document. The danger of reading a text primarily against this sort of background is that limited and particular data, fragments of the historical record, may be used to explain too much, to constitute the single reference point for understanding. The assumption, for instance, that the Mishnah is designed principally and primarily as a strategy of rectification in the aftermath of the two wars carries in its wake the inevitable tendency to seek out its elements of structure and stability and to ignore its traits of disorder, ambiguity, and inconsistency.

Green, for the case of early rabbinism, and Radding, for the medieval materials he discusses, agree concerning the importance of interpreting legal and mental developments such as we have seen in the Mishnah on the basis of the concrete world from which the documents derive. They warn us however that, in Green's words, "In creating the various contexts against which the rabbinic literature can be understood and interpreted, we need to begin with epistemological modesty; we cannot push too far beneath the surface before we have thoroughly mapped the terrain on the basis of the most detectable landmarks" (p. 203). As its primary purpose, this study has indeed set out to delineate the basic concerns and facts of the Division of Agriculture. This mapping of the terrain provided a clear picture of the issues confronted in the Division of Agriculture, as well as a careful evaluation of the specific perspective upon the law of each generation of rabbis. This evaluation led to a historical reconstruction that makes use of the central intellectual landmarks provided by the Division of Agriculture. Yet, as Green makes clear, the evaluations carried out here teach first and foremost about the cognitive world of the rabbis themselves, a world revealed in the specific concerns they address and in the legal theories that they develop. In this regard, the most important result of this volume is the recognition of the growth, within this division, of the earlier legal absolutism, which characterizes Y avnean thinking, into the relativist perspective of Ushan legislation. This growth points to the developing agendum of early rabbinic Judaism, a Judaism that, by the end of the second century, centered upon the powers of the human intellect and will to define and give meaning to the world.

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This conclusion regarding the internal legal focus of this document parallels the conclusion drawn by Green from the formal traits of the Mishnah as a whole. He states (pp. 202-203, emphasis added): [T]he Mishnah may be envisioned as a kind of primal list, mastery of which determined competence and credibility in rabbinic society. But the absence in its list of explicit hypo taxis suggests that expertise involved learning each single pericope, each separate unit, one after another. It also implies that in rabbinic discourse attention will be directed not to a picture of the whole but to details of the distinct components of the list themselves. Because their autonomy is never nullified and because they are not formally bound to one another, the elements of Mishnaic lists are capable of virtually endless comparison and contrast, of nearly infinite combination and recombination, in a system that maximizes the possibilities for ingenuity. Ingenuity, indeed, is what the Division of Agriculture, and with it the rest of the Mishnah, is about. For in this document, rabbinic masters envision a society in which each individual's intellect will work towards creating a perfected world, conceived by humans and yet believed to be in the holy image of God. While awaiting realization of this dream, these rabbis, powerless within their own nation, work at the elaborate puzzle that constitutes the Mishnah. Their highest value is seen both in their internal intellectual life and in their legislation. This value consists of using the mind to determine what God demands and so to participate direcdy in the processes of revelation and, ultimately, redemption.

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PART ONE

MISHNAH-TOSEFTA BERAKHOT TZVEE ZAHAVY

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ACKNOWLEDGMENTS

I thank the American Council of Learned Societies for awarding me a fellowship to work on research related to this book. I also thank the dean of the Faculty of the Humanities of the Hebrew University for his assistance in providing for me an office and access to the libraries during my tenure there as Visiting Scholar as I completed this study. Above all I acknowledge the influence on this study of the work of my teacher, Jacob Neusner. He has shown us all how to render the wisdom of our sages into our own language through his own lucid and systematic work in his translations and explanations of tractates of the Mishnah, the Tosefta, the Talmud of the Land of Israel, the Babylonian Talmud, the Midrash, and in his ongoing work on the remaining documents of rabbinic literature. I am grateful for what he has given me to work with. I know that without the benefit of Neusner's paradigmatic work, my translation and study of Mishnah and Tosefta Berakhot could not have succeeded in whatever small measure it has.

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MISHNAH-TOSEITA BERAKHOT INTRODUCTION

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INTRODUCTION

I started this research intending to study tractates Mishnah and Tosefta Berakhot to contribute to the understanding of the character of the early rabbinic compilations Mishnah and T osefta. At the time that I began the work, my teacher, Professor Jacob Neusner of Brown University, was completing a major study of many of the other tractates of Mishnah and T osefta. 1 I undertook this work at first as a study parallel to his: as a systematic investigation of the nature of the forms and contents of the texts of tractate Berakhot of Mishnah and T osefta. As my research unfolded, I found that my analysis of this one tractate for the purposes established by Neusner in his work confirmed most of the conclusions he reached in his study of other parts of Mishnah and T osefta. In the early stages of my work, I observed first of all that there were few new literary forms or formulary patterns in my tractate. I therefore chose not to undertake what would be repetitive studies of Mishnaic diction in Berakhot. I saw in addition that, by and large, the substantive characteristics of M. and T. described by N eusner in his studies of other tractates also reverberated in the present texts. Most striking was my confirmation of Neusner's insight into the substantive coherence of the content of each chapter of Mishnah. 2 In Berakhot at first there does not appear to be much of a coherent agendum of issues in each redactional unit of the tractate. But based on Neusner's consistent findings for the remainder of Mishnah, I ferreted out the major interest or concern of each chapter and was able to delineate the themes which lend coherence to Mishnah's sometimes ostensibly disparate rules. In the introduction to each chapter of this book I present the results of this analysis.

1 These studies have been published in the series Studies in Judaism in Late Antiquity. They include A History qf the Mishnaic Law qf Purities, A History qf the Mishnaic Law qf Holy TI!ings, A History qf the Mishnaic Law qf Damages, A History qf the Mishnaic Law qf Women, A History qf the Mishnaic Law qf Appointed Times, Leiden: E. ]. Brill. See my bibliography. 2 This is summarized in the introduction to each of the tractates in the individual studies in SJIA and somewhat recapitulated in Judaism: Tite Evidence qf Mishnah, Chicago, 1981.

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My primary goal remained to provide insight into the character of the texts of Mishnah and Tosefta in their larger textual contexts. Based on my study of Berakhot, I concluded that an issue specific to this tractate also had to be addressed. These M. and T. texts inform us about early rabbinic conceptions of prayer and blessings, of the daily liturgy, and of table fellowship. No past systematic analyses of these texts had attended closely enough to what these corpora of texts on their own had to say about these matters. Accordingly, I decided as one purpose of the present study to take a direct interest in what the data said about early Jewish ritual, to investigate issues relating to the nature and development of early rabbinic conceptions of blessings, prayer, and table fellowship. This study is addressed to a broad audience of specialists. Because the central purpose of this work is to make a contribution to the study of Jewish life and thought in late antiquity from the first through third centuries C.E., I expect that this book will serve the interests of historians of ancient Judaism, of Mishnaic and Talmudic religious law, and of the development of Jewish liturgy. The contents of this study relate to many aspects of Jewish cultural development in that formative period. Students of Hellenistic history and religion and of early Christianity also may find information of interest in this study because Judaic religious practices and beliefs reflect and influence parallel developments in other related social and cultural contexts in antiquity. Others also may find information of value in this study. It is commonly assumed that during the time of the formation and redaction of Mishnah, from the first through the third centuries, the rabbis instituted many forms of prayer and blessings, and articulated formative philosophical understandings of prayer which influenced the development ofJewish and Christian prayer for centuries to follow. Knowledge of the character of earliest rabbinic liturgy may be useful to all those who wish to trace the development of subsequent forms of Western prayer. Finally, this study may contribute modestly to the understanding of prayer in general. Historians of religion, scholars of comparative religious thought and practice, phenomenologists of religion, anthropologists who study religious ritual, and sociologists of religion, may find in this analysis of a formative corpus of textual data, some small methodological and substantive advances for the study of prayer and similar rituals in the contexts of other religions of the world.

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407

BLESSINGS AND PRAYERS:

THE THEOLOGY OF TRACTATE BERAKHOT

A. Background The few brief and turbulent generations between the years 70 and 200 of the Common Era were revolutionary times in the development of religion in the ancient near East. One of the most dramatic and distinctive changes in the nature of religion during this period was the demise of cultic worship through animal sacrifices and agricultural offerings at centralized national shrines and the concomitant shift to worship through routinized local prayer and table fellowship. In Judaism the change came abruptly. Prior to 70 C.E. the Temple in Jerusalem dominated Jewish worship. To serve God from day to day and throughout the year, one could participate in the rituals of the Temple as carried on by the priests in Jerusalem. When the Roman legions destroyed the Temple, the Jews looked to other modes of worship to take the place of the Temple's sacrificial cult. Two particular changes are noteworthy in this epoch. First, in the years following the destruction of the religious center of Judaism in Jerusalem, from 70 to 132, Jews developed the practice of reciting prayers on a regular basis in their towns and villages. Second, the rites of table fellowship in each Jewish home took on a much greater significance during this era of instability and change. In the next generation, after the abortive revolt of 132~5 C.E., when it was clear that the Temple would not speedily be rebuilt and its cult would not quickly be restored, rabbinic leaders developed these newly emphasized rituals of prayer and table fellowship as the primary means of systematic worship within the way of life they articulated in Mishnah and its appendix, Tosefta, the formulaic traditions of the rabbinic academy. The tractates Berakhot in Mishnah and T osefta are collections of these rabbinic rules for worship and commensality, assembled and edited in the early third century C.E. The religious laws in these collections are the best source of evidence for reconstructing the history of the development of modes and theories of rabbinic prayer and table fellowship in the era of great transition and change from the first through the third centuries.

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B. The Theology qf the Tractate M. Berakhot appears at first to be a somewhat disjointed tractate comprised of disparate units on a variety of loosely related topics. M.'s laws deal with the recitation of the Shema', the recitation of the Prayer of Eighteen Blessings, blessings to be recited before one eats foods, the common recitation of blessings after the meal, other rules for the dinner, and blessings for other occasions. On first analysis one common concern lends coherence to the diverse laws and rules of the tractate. That basic unifYing principle is that a person must recite one or more formulaic blessings in each instance of religious ritual mentioned in the tractate. 3 Hence the title: "Berakhot," "Blessings." Accordingly, M. rules that before and after the daily recitations of the biblical verses which comprise the Shema', one recites blessings. For daily prayers, one recites a liturgy of eighteen blessings. At meals, one recites blessings before and after eating any foods. In times of danger, or when one obtains new clothes, or when one hears good news, or when one comes into a town from a trip abroad, or in a number of other instances, one recites blessings. In the Mishnaic conception, the requirement to recite a common formula connects together a variety of clearly distinct religious rituals and personal or social occasions. Hence the various rules of the tractate and their subjects seem to cohere only on a superficial secondary level. On further investigation it becomes evident that M. actually weaves together a carefully selected group of formulaic rules on related topics to construct and articulate a fully-developed and more coherent theory of prayer which carefully defines the nature of many aspects of the larger phenomenon of its concern-the recitation of the standardized literary formulae of rabbinic prayer. A principle assumption of Mishnah Berakhot is the notion that blessings are performative utterances-words which a person recites to 3 A blessing is a fixed array of words which first invoke God's name and then close with an appropriate formula for the specific application of the blessing. Several examples help illustrate the use of blessings in the rabbinic system. Before reciting the evening Shema' one recites a short liturgy which concludes with a blessing, "Blessed art thou 0 Lord Our God, King of the Universe who brings the evening." Before eating fruit one must recite, "Blessed art thou ... who creates the fruit of the tree." At the conclusion of the Sabbath one recites a liturgy which takes the form of a blessing: "Blessed art thou ... who divides the sacred from the profane ... "

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accomplish something of religious significance-either to transform orclinary activities into special moments of ritual, or take on an independent ritual life themselves. Blessings before and after eating, for example, alter the nature of the act of eating. They transform the meal from a mere biological act of eating to a moment of ritual sanctity. The Shema' liturgies, recited early in the morning and at night, serve to frame the activity of everyday life in sanctity. Blessings before and after the Shema' frame the recitation of biblical verses with an outline of rabbinic actions and words and provides an interpretive framework for the traditional recitation of Scriptural selections. Likewise other liturgical rituals such as the Qjddush, the Prayer of Sanctification at the beginning of the Sabbath, and the Habdalah, the Prayer of Division at the end of the Sabbath, frame with sanctity both the meals of the inauguration and conclusion of the Sabbath and the Sabbath day itself. In sum, the proper words transform ordinary actions or periods of time into holy occasions, says Mishnah. Mishnah also teaches that blessings may take on an independent existence, apart from other rituals. The recitation of the Prayer of Eighteen, for example, constitutes an autonomous ritual, with its own religious significance. Other blessings by themselves may sanctify time or action, and also may protect an individual from harm or may express an individual's thanksgiving for God's protection and grace. Curiously, within this tractate one finds few restrictions on the location acceptable for reciting prayers and blessings. Contrary to one's expectations, the institution of the synagogue does not serve as a central setting in this compilation for the recitation of the liturgies and prayers of the late antique Israelite. The laws themselves govern actions which may be performed throughout the village, in houses, streets, marketplaces, groves, vineyards, near latrines, in bathhouses, and in synagogues and study halls as well. We may conclude accordingly, that the rabbis believed that through the recitation of prayers with proper intention and action an ordinary householder transforms his locale, wherever that may be, into a place of sanctity. He brings the sacred into his house and village by reciting the right words, with the correct intentions, at the proper time, under the appropriate circumstances. The tractate begins appropriately with laws for the recitation of the Shema'. The central components of the Shema', verses from Deuteronomy, distinctly affirm the obligations of the individual Israelite in his village. He must love God, take God's words into his heart, and teach his

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children. The verses of the Shema' in Scripture speak of places and times in the domain of the ordinary life of each person, from the doorpost of one's house to the village gates. The biblical passage alludes to the span of the typical day, from rising in the morning to retiring at night. The main obligations set forth in this section of Scripture relate to the normal existence of the individual householder. Each adult male must wear on his person tefillin and fringes. On the doorposts of each family's house there must be a mezuzah. In short, the Shema'-ritual is a paradigm of rabbinic religious practice. Mishnah Berakhot as its main task sets forth the basic rules for this and several other major rituals of rabbinic daily life, with a distinctive theology imbedded in the rules of the Tractate. Words only become effective sacred utterances of speech, i.e. prayers and blessings, when properly uttered according to the principles set forth by the rabbis.

C. 7he Tractate's Systematic Taxono"9'

if Prayer

The tractate as a coherent entity, in its substantive selection and organization of early rabbinic rules for liturgical recitations, enunciates a clear, structured early rabbinic taxonomy of prayer utilizing three broad major concepts and numerous subsidiary ideas. The basic distinctions in M. are the following: 1. There are two types of prayers. The first type, independent, primary prayers and blessings, constitute the main elements of a ritual. The other kind, dependent secondary prayers and blessings, serve as subsidiary adjuncts to other rituals. 2. Second, and related to the preceding idea, the texts of prayers are often either framed by accompanying materials or serve as frames for other rituals. 3. Prayers are comprised of at least two elements: a verbal and a mental component, i.e. an act of recitation and a state of concentration. 1. Types if Prayers To understand the first part of M.'s taxonomy, let us consider how M. broadly organizes the material in this tractate. In the first half of the tractate, chapters one through five, M. deals with those prayers which stand on their own as independent ritualsthe daily liturgies of rabbinic Judaism. Throughout the first five chapters of the tractate M. presents rules which regulate the rituals of the recitation of the texts of the Shema' and of the blessings which comprise the Prayer of Eighteen. Jacob Neusner - 978-90-47-41637-1 Downloaded from Brill.com02/08/2023 11:54:33AM via Universite degli Studi di Milano

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In the second part of the tractate, chapters six through nine, M. takes up the rules for those prayers and blessings which serve as secondary elements of other rituals, first turning to regulations for the recitation of those blessings which accompany the meal. In actuality, the meals themselves are the focal rituals. The blessings merely frame the meal and establish it as a ritual occasion. Berakhot's laws propose that only through the recitation of the correct formulae before and after the meal, can one define a situation of eating as a fellowship dinner (chapters 6 and 7). The concluding section, chapter nine, spells out other secondary prayers and blessings-those one recites for special events. One says certain formulae to give thanks to God for deliverance from danger, to request protection from harm, or to recognize the national or historical importance of a place, or the significance of an unusual natural event (ch. 9). These blessings have no function if they are recited detached from the events with which Mishnah connects them. Accordingly, in Mishnah Berakhot's view there are two related but distinct kinds of prayers. There are those independent prayers, such as the Shema' or the Prayer of Eighteen, which one recites apart from of any other focal event or ritual. Next, there are those dependent blessings recited over foods or at various times which are adjuncts to other actions. 2. Framing Prayers Mishnah's second implicit interpretive concept is the idea that some rituals need to be formally framed or demarcated. The rabbinic meal is one example of a ritual framed by the recitation of blessings. Blessings before and after eating transform acts of consuming food, which they surround, into sacred occasions of ritual (cf. M. Chapters 6 and 7). The rabbinic blessings recited before and after the scriptural passages of the Shema' (see M. 1:4) serve to frame the recitation of these verses from the Torah, and transform the act from mere speech or study into liturgy. M.'s perception is that some rituals may be framed through the recitation of the formulae of prayers or blessings, and that some prayers themselves may be framed by other liturgical devices. Visible, but less urgent concerns of this tractate of Mishnah are such notions that prayers and other rituals may be differentiated from ordinary activities in a variety of ways, not just through the recitation of other preliminary and concluding formulary texts. Physical signals such as posture, tone of voice, demeanor, dress, or the use of special objects

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serve a similar purpose. In addition the physical locale or the social context of a prayer or another ritual may set it off from the profane endeavors of everyday life. 3. Intention for Reciting Blessings and Prayers M. expresses its third fundamental notion of its taxonomy of prayer in a few choice rules governing the recitation of the liturgies. In order for an individual to properly recite the Shema', M. requires that one achieve a certain level of concentration which shuts out some of the ordinary interactions of social life (M. 2:1 ). Likewise for the correct recitation of the Prayer of Eighteen, one must completely close out the distractions of the physical world and turn his attention inward, to prayer (M. 5:1 ). In addition Mishnah emphasizes that special positive forms of intention or concentration must accompany the recitation of prayers.

4. Subsidiary Ideas a. Framing the Daily Cycle Several subsidiary notions of prayers and blessings inhere in the remaining rules of the tractate. In Mishnah's view, the Shema' and the Prayer of Eighteen play a role in demarcating the structure of daily life. The Shema' marks the beginning and end of every day (M. 1: 1-3). The blessings which frame the Shema' express many of the rabbinic beliefs concerning the nature of the daily cycle of life and the importance and purpose of a person's daily endeavors. The liturgical texts (blessings) which frame the morning Shema', make mention of God's role in the creation of light and darkness and in renewing each day his acts of creation of the world. They refer to the basic rabbinic beliefs in the revelation of the Torah, in redemption, and salvation. The blessings surrounding the evening Shema' make reference to God's role in bringing the darkness of night, his love for his people Israel, his promise for the redemption of the people. In this liturgy one asks for God's protection through the night to come. Each Jew recites the blessings of the Prayer of Eighteen and invokes many of the important beliefs of rabbinism to mark the cycle of each passing day, morning, afternoon, and night. b. Intention: Subsidiary Ideas Earlier I said that M. requires intention or concentration for the recitation of prayers. Several rules in this tractate add conceptions subsidiary to this fundamental notion. For example,

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M. recognizes that the social realities of the pressures of a person's daily life may affect an individual's ability to concentrate for prayer. M. exempts from the obligation to recite the Shema', a newlywed who cannot properly concentrate because he is emotionally distracted (M. 2:5). In addition the text recognizes the limitations of a mourner's ability to achieve the proper frame of mind for prayer because of his grief (M. 3:1-2). M. further rules that a craftsman may recite the Shema' while atop a tree (M. 2:4). An ordinary householder cannot because he will not be able to properly concentrate while high above the ground. These additional rulings develop derivative notions of how one must alter his awareness to make special efforts to concentrate during the recitation of the Shema' and the Prayer of Eighteen. c. Excluded Classes and other Dificiencies in Recitation Other rulings, also subsidiary to the main ideas of the tractate, except certain classes of individuals from the obligation to recite prayers. M. excludes women, slaves and minors, individuals who suffered a pollution, and those who stand unclothed or near waste materials (M. 3:3-6) from participation in the rituals of prayer. M. also specifies how the level of a person's voice and the correct pronunciation of the words of liturgies contribute to the proper execution of the ritual. In addition, one's posture and bodily orientation are all factors in defining and properly framing liturgical recitations (M. 2:4-6, 1:3). d. Food Blessings: Taxonomy and Economy As I said, the second half of the tractate develops ideas concerning those secondary prayers which accompany other rituals-the blessings one recites before and after eating and the blessings for other special events. M. presents a simple system of those blessings to be recited before eating any foods, representing its idea of a basic taxonomy of foods. It distinguishes separate categories for bread and wine, for fruits, for vegetables, and for all other foods (M. 6:1-3). In addition to its outline of the system of food blessings, M. spells out a second important substantive concept. One must make exceedingly sparing use of these blessings presumably because they invoke the name of God (M. 6:4-7). To review, the chief concerns of M.'s third-century rabbinic taxonomy of prayer in the tractate are the following:

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1. The distinction of independent from dependent prayers. 2. How to frame the texts of prayers to separate them from ordinary speech. 3. How blessings may bracket the rituals of prayer and of the fellowship meal. 4. Various other modes of framing the act of prayer with physical signals, such as voice, posture and orientation. 5. The nature of the mental processes associated with prayer. 6. The relationship between real social structures and situations, and the theoretical demands of the recitation of prayers. 7. How blessings support conceptions of taxonomic structures of natural produce. 8. How one makes economical use of the formulae of blessings recited in the context of the meal. The diagram (figure 1) summarizes many of the main elements of M.'s characterization of early rabbinic prayer. Figure 1. Mishnah's Phenomenology of Prayer Main Themes III.

II.

Intention Frame of Mind

Frames

Dependent

I

Prayer is framed by words and actions

Activities, time

Subsidiary Themes

Shema' frames I each day

Taxonomy: one must use blessings sparingly Prayers frame fellowship meal

Special secondary prayer

Posture, recitation

I Prayer of 18 frames each day

Distractions

Newlywed, mourner, craftsman

Some classes excluded

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Now that I have spelled out the major ideas which comprise the theology and taxonomy of Berakhot, I turn in the next section to a summary of the rules in the order they appear in the tractate. Mter that, in section III, I consider how Berakhot fits into its broader cultural context. In IV, I describe the methods of translation and commentary I use in the chapters which follow.

II.

THE STRUCTURE OF TRACTATE BERAKHOT

Let us summarize the laws of the compilation in order. Tractate Berakhot in Mishnah begins with the rules for the recitation of the Shema' and unfolds in seven major divisions as follows:

A Rules for the recitation qf the Shema' and its blessings (1:1-5) 1: 1 Dispute regarding the time for the recitation of the Shema' at night. 1:2 Dispute regarding the recitation of the Shema' in the morning. 1:3 Houses' dispute over the exegesis of Deut. 6:7. Scriptural basis for reciting evening and morning. 1:4 The rabbinic blessings which frame the Shema'. General rules regarding forms of blessings. 1:5 Scriptural basis for reciting the last verse of the Shema' at night.

B. Concentration during the recitation. Social status and the recitation qf the Shema' (2:1-3:6) 2:1-2 2:3 2:4

2:5-7

2:8 3:1-2 3:3

Intention needed for reCitmg. Distractions from reciting. The basis for the order of the paragraphs. One who erred in reciting. Special rule for craftsmen. May recite atop a tree. It is no distraction for them. Bridegroom exempt from the Shema'. He is distracted. Gamaliel's practice and two more units about Gamaliel. Bridegroom has the option to recite. Those involved in a funeral are exempt from the Shema'. Women, slaves and minors are exempt from the Shema'. Their other obligations.

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3:5

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One for whom the rabbis declared uncleanness (because of a bodily discharge) may not recite the rabbinic blessings before and after the Shema' and before the meal. Related rules: Prayer-obligation of one who remembered he was unclean. Reciting the Shema' while unclothed. Prayer near human wastes. Others who are unclean from a discharge must dip in a pool before they can recite the Shema'.

C. Rules for the recitation qf the Prayer qf Eighteen Blessings (4:1-5:5) 4: 1 4:2 4:3 4:4 4:5 4:6 4:7 5:1 5:2 5:3 5:4 5:5

The times of day to recite the Prayer. Special Prayers for a study hall. Dispute regarding the Prayer of Eighteen. Fixing Prayer. Short Prayer to be said in a place of danger. Direction to face when praying. One who prays when travelling. The Additional Prayer. The frame of mind needed for Prayer. Insertions in the Prayer. Rules for one who makes errors in praying. The priestly blessing during Prayer. Prayer recitation as an omen.

D. Rules for food blessings and the blessings qf the meal and dinner (6:1-8)

6: 1 6:2 6:3 6:4 6:5 6:6 6:7 6:8

The basic taxonomy of categories of foods and their respective blessings. Reciting the wrong blessing. Blessings over non-agricultural or defective foods. Priorities of foods for reciting blessings. Reciting a blessing over one food exempts another from the need for a blessing. One person's blessing exempts another person from the obligation to recite a blessing. Primary and secondary foods in the meal. The blessings recited after eating. The blessing for drinking water.

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E. The invitation to recite the blessings rifler a meal (7: 1-5) 7: 1-2 7:3 7:4-5

The call to recite the blessings after the meal. Who may be counted in the necessary quorum. The formula of the invitation. How a group may separate or combine for the invitation. The blessing over wine.

F. Dinner rituals (8:1-8) 8: 1 8:2 8:3 8:4 8:5 8:6 8:7 8:8

Houses' disputes regarding the dinner. The order of blessings in the Sabbath Prayer of Sanctification (Qjddush). The order of washing and mixing the cup at dinner. Placement of the napkin at the dinner. Cleaning and washing after the dinner. The order of blessings in the Prayer of Division (Habdalah) after the Sabbath. The blessings over light and spices after the meal. Rule for one who forgot to recite the blessings after the meal. Blessings on wine and meal after dinner.

G. Other blessings and miscellaneous matters (9:1-5) 9: l 9:2 9:3 9:4 9:5

Blessings for shrines and former places of idolatry. Blessings for astronomical, geological and meteorological phenomena. Blessings to recite when acquiring new possessions or for hearing good or bad news. Vain Prayers. Prayers to recite upon entering a new town. Blessings to recite for good and bad events. Proper behavior at the Temple Mount. The rabbis ordained the invocation of God's name.

To sum up, A and B cover the nature of the obligation to recite the Shema' morning and evening (l: l-5); intention which is needed for reciting the Shema' and the kinds of distractions which disrupt the recitation of the Shema' (2: l-3:2). This material ends with rules for individuals who are not obliged to recite the Shema' or its blessings (3:3-6). C turns to the second daily liturgy, the Prayer, and deals with: the times (4:1) and forms of the Prayer (4:3-4), one's orientation during

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Prayer (4:5-6), the Additional Prayer (4:7). Interpolations into this Mishnaic unit deal with the short special Prayer for the study hall and for places of danger (4:2, 4:4). It turns then to the frame of mind one needs for the Prayer (5: 1) and to other regulations. D covers food blessings (6: 1-7), E addresses the blessings after the meal (6:8, 7:1-5) and F deals with dinner regulations (8:1-8). G concludes with rules for special blessings. As I said, on the whole the Mishnah-tractate does not evince substantive conceptual internal coherence. Its unity grows out of the perspective of the editor who brought together a variety of subjects which share in common the practice of the recitation of the rabbinic blessing formula in each of these instances of daily activity.

III.

MISHNAH IN ITS LARGER CULTURAL SETTINGS: THE CoNTEXTs OF TRAcTATE BERAKHOT

A Scriptural Context if the Tractate The system of blessings and prayers described in this tractate is based mainly on rabbinic innovation and invention. The rabbis constructed this elaborate compilation of rules with only a slim foundation of Scriptural allusions to prayers and blessings or of any regulations for the rituals of prayer. The text of the liturgy itself is built out of in interweaving of citations and allusions to many verses, passages, and ideas of Tanakh, together with rabbinic expressions with its own phraseology. The verses relating to the prayers and blessings of this tractate are as follows: 1. Shema' The central reference used by the rabbis to support their regulations for the recitation of the Shema' is Deut. 6:7: "And You shall teach them diligently to your children, and you shall talk of them when you sit in your house, and when you walk by the way, and when you lie down and when you rise." The verses of the core of the Shema' are taken from Deut. 6:4-9, Deut. 11:13-21 and Num. 15:37-41.

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2. The Verses Relevant to the Purity Laws in M. 3:4-6 [Concerning a nocturnal emission:] If there is among you any man who is not clean by reason of what chances him by night, then he shall go outside the camp, he shall not come within the camp; but when evening comes on, he shall bathe himself in water and when the sun is down, he may come up within the camp. You shall have a place outside the camp and you shall go out to it; and you shall have a have a stick with your weapons; and when you sit down outside, you shall dig a hole with it, and turn back and cover your excrement. Because the Lord your God walks in the midst of your camp, to save you and to give up your enemies before you, therefore your camp must be holy, that he may not see anything indecent among you, and turn away from you. (Deut. 23: l 0-14) [Concerning a seminal emission:] And if any man had an emission of semen, he shall bathe his whole body in water, and be unclean until evening. (Lev. 15: 16) [Concerning a ,Zab:] And when he who has a discharge is cleansed of his discharge, then he shall count for himself seven days for his cleansing, and wash his clothes; and he shall bathe his body in running water, and he shall be clean. (Lev. 15:13) [Concerning a Niddah:] When a woman has a discharge of blood which is her regular discharge from her body, she shall be in her impurity for seven days, and whoever touches her shall be unclean until the evening. (Lev. 15:19)

3. Prayer

rf Eighteen

a. The Talmud acknowledges that the Prayer was not ordained on the authority of Scripture but was instituted by the rabbis. 4 b. Later rabbinic authorities proposed various biblical antecedents for prayer. 5 Some verses have been associated with the acts of Prayer: And you shall serve the Lord your God, and I will bless your bread and your water; and I will take sickness away from the midst of you. (Exod. 23:25)

See B. Ber. 2la; B. Suk. 38a. See e.g. Maimonides, Laws of Prayer I: 1-8: "It is a positive commandment [of the Torah) to pray every day ... " 4

5

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Then these men came by agreement and found Daniel making petition and supplication before his God. (Dan. 6: 11) c. That prayers represent sacrifices is a concept found in Berakhot. The regulation of Temple offerings thus relates to prayer as well. [Regarding the daily offerings:] And you shall say to them This is the offering by fire which you shall offer to the Lord two male lambs a year old without blemish, day by day, as a continual offering. The one lamb you shall offer in the morning, and the other lamb you shall offer in the evening. (Num. 28:3-4) [Regarding the limbs of the daily offering:] Command Aaron and his sons, saying, This is the law of the burnt offering. The burnt offering shall be on the hearth upon the altar all night until the morning, and the fire of the altar shall be kept burning on it. (Lev. 6:2 [RSV 6:9]) d. The rabbis [esp. in T. and later in B.] find elements of their conceptions of prayer in the past actions of the virtuosi of prayer in Ancient Israel: David's prayer: Evening and morning and at noon I utter my complaint and my moan, and he will hear my voice. (Ps. 55: 17) Solomon's prayer in I Kings, chapter 8 [II Chron. 6), a rich source of references throughout the chapter. e. A verse makes allusions to the need for intention in prayer: 0 Lord, thou wilt hear the desire of the meek; thou wilt strengthen their heart [i.e. intention], thou wilt incline thy ear. (Ps. l 0: l 7) (

Several references allude to postures and procedures in the prayers of some model figures in Ancient Israel.

Prayer may be silent: Hannah: Hannah was speaking in her heart; only her lips moved, and her voice was not heard; therefore Eli took her to be a drunken woman. (I Sam. l: 13) Prayer may be recited while low: Out of the depths I cry to thee, 0 Lord! (Ps. 130: l ):

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4. Food and Meal Blessings a. One verse makes reference to the blessings after eating: And you shall eat and you shall be satisfied and you shall bless the Lord your God. (Deut. 8:7~10)

b. There are no direct references to blessings before eating. 6

5. Several Verses are Interpreted as Passing Allusions to Other Blessings That men may know, from the rising of the sun and from the west, that there is none besides me; I am the Lord, and there is no other. I form light and create darkness. I make weal and create woe, I am the Lord, who do all these things. (Isa. 45:6~7) For lo, he who forms the mountains, and creates the wind, and declares to man what is his thought; who makes the morning darkness, and treads on the heights of the earth-the Lord, God of hosts, is his name! (Amos

4:13)

B. Berakhot in the Context qf Mishnah Our texts of M. and T. form the initial, and one of the most important, of the sixty-three tractates of M. and T. Recent scholarship on the whole corpora of M. and T. shows that they comprise self-contained tractates shaped by redactors to convey distinctive views on a variety of subjects through the discrete rules within the many chapters of the documents. 7 When one looks at Berakhot as a component of the larger compilations of M. and of T. and examines its contents in the context of these corpora of third century Tannaitic thought one finds some of the major themes which pervade other tractates of M. present and prominent in our texts as well. A specific Mishnaic concept in the rules of Berakhot illustrates this point. The role a person's concentration plays in the performance of the ritual of the recitation of the Shema' (M. 2: 1~2) is an important concern of the brief set of laws in chapter two of M. In a few compact lines on this subject, M. tells us its view of the purpose, definition,

See B. Ber. 48b for a discussion of the Scriptural basis of blessings before eating. See especially Neusner's studies cited above as well as the remaining volumes in this series. 6

7

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and meaning of a person's intentions. The editor of M. speaks in the familiar formulaic idiom of the document about the nature of the concentration one needs to have for the recitation of this liturgy. The tractate's few rules on the subject subdy define the nature of human intention relevant to the performance of this ritual. The laws define the character of an individual's consciousness as it pertains to the recitation of the Shema'. Specifically, Mishnah, in the rule cited, differentiates between ordinary awareness and the state of concentration necessary for the recitation of the Shema'. Later in the tractate, in chapter five, M. sets forth in additional regulations its view of the role of intention and concentration needed in the recitation of the Prayer of Eighteen (M. 5: l ). In the context of M. as a whole, it is not surprising to find the redactor of our tractate interested in the subject of intention. Neusner in fact has shown that the role of intention in religious actions is one of the most prominent recurring themes in M.'s tractates. 8 One might expect the texts to refer in some way to the role of one's thought or intention in the performance of religious obligations. Hence, when examining M. Berakhot's content in the light of the overall interests of M., one finds that the texts reiterate in new guises some familiar Mishnaic ideas and concepts. Similarly, the style of Berakhot is best appreciated in the context of M. in general. When scrutinizing the literary forms and formulary patterns of the materials, one notes that our tractates draw from the limited repertoire of literary devices of Mishnaic diction found elsewhere in the corpus of texts. For the most part, the tractate, like the remainder of M., expresses its rules through a few distinctive literary patterns: patterned sentence structures, lists, groups of attributed sayings, and disputes. By viewing M. Berakhot in this literary context, one understands better the character of some of the texts of the tractate. In particular, its most unusual stylistic unit, chapter eight, is a series of disputes between the Houses of Hillel and Shammai. This unit of Houses disputes concerning rules for the dinner stands out from the remainder of the tractate as an oddity. Its thematic concern is only indirecdy linked to the main subject matter of the tractate and its literary form is noticeably different from the other materials in our compilation. This section in fact is out-of-step with the literary character of the remainder of the tractate. 8

See J. Neusner, Judaism: The Evidence qf Mishnalz, Chicago, 1981, pp. 270-283.

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However, when compared with M.'s literary choices in general throughout all of its chapters and tractates, the material in chapter eight is not at all unusual. In the larger analysis, this section represents one of the finest examples in all of M. of a coherent unit built around the Houses-dispute-form, one of M.'s most familiar formulaic structures. As these examples show, the tractate is observably "Mishnaic" in both its thematic content and its formulary structure. In the context of M. as a whole, many of the issues which Berakhot takes up and many of the syntactic structures it employs are commonplace, congruent with M. 's overall style and thematic agendum. Their sometimes abrupt presence in the texts makes better sense when they are viewed as routine elements in the system of Mishnaic thought and diction.

C. Berakhot in it Social and Religious Context: Comparative data 1. Prayer in Late Antiquiry Peter Brown observes that between the second and fifth centuries the locus of divine power shifted noticeably. Late antique religious leaders developed significantly new ways of understanding and addressing God. 9 As I noted at the outset of this chapter, for Judaism, the changes in religious expression and obligation were accelerated by the forced demise of the centralized cult at the Temple in Jerusalem. The rabbinic movement was ready to assume the mantle of religious leadership within the Jewish community made accessible to it by the changing events of the epoch. They were ready, Brown puts it, to serve as God's "exceptional human agents, who had been empowered to bring [divine power] to bear among their fellows by reason of a relationship with the supernatural that was personal to them, stable and clearly perceptible to their fellow believers." 10 For the intellectual elite within the community of the Jews the rabbis offered a life of study, of contemplation and examination, through the philosophical system of the Mishnah and later via the Talmud. For the average folk in Jewish society they provided a world of rituals and of popular teachings. Chief among the rites they fostered were the daily and seasonal recitations of prayers and blessings, to be practiced according to the modes determined by the rabbinic expositors of religion.

9 10

See 7he Making of Late Antiquiry, Cambridge, Mass., 1978, pp. ll-12. Brown, op. cit., p. 12.

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2. Prayer in the Apocrypha, Pseudepigrapha and Dead Sea Scrolls The rabbis did not invent the idea of prayer. Indeed, one might easily argue that the achievements of the Psalmist in the golden age of Jewish prayer were never superceded by the rabbis, nor by other interpreters of classical liturgical expression. Jewish liturgists and theologians made various attempts to develop prayers between the era of the classical Israelite expressions of verbal praise and petition, and the rise of the rabbinic system of liturgy. Most of these spoken expressions of worship left few traceable direct impressions on the later development of rabbinic prayer and blessings. Let us look at some of the most prominent examples that have been described in the past. It has been argued that one may discern in the hymns and prayers of Ben Sirah, Ecclesiasticus, a prototype of a prayer similar to the rabbinic Prayer of Eighteen BlessingsY In Judith we find numerous short prayers some in the form of blessings. 12 In I and II Maccabees we note war prayers and thanksgiving utterancesY Tobit and Jubillees give us examples of prayers to be recited for safety on a journey. 14 References to recitation of blessings at a meal may be found in the Letter of Aristeas, indicating it was a recognized pre-rabbinic Jewish practice. 15 All together Johnson collected and organized dozens of scattered references to prayer and blessing from throughout the extracanonical literature. While his approach is highly theological in its categories and assumptions, his work of collection presents an unambiguous picture that Jewish liturgy developed over a span of many generations. Nevertheless, the rabbinic conceptions and regulations of a system of prayer, such as we find in Mishnah, cannot be matched in scope or content in any one of the sources, nor can it be approximated by combining all the available evidence into an artificial scheme of Jewish liturgical expression. The Dead Sea Scrolls Thanksgiving Psalms are the richest source of liturgical data from that group. These hymns need not detain us, for

II

On this see]. Heinemann, Prayer in the Talmud: Forms and Patterns, N.Y., 1977, pp.

219~221. I 2 See Norman B. Johnson, Prayer in the Apocrypha and Pseudepigrapha, Philadelphia, 1948, p. 8. I 3 Johnson, pp. 10~11. I4 Johnson, pp. 12~13. Is Johnson, p. 15.

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they provide little in the way of data parallel to our Issues m tractate Berakhot. 16 In the community rule we do note some practices for the Qumran fellowship meal which suggest some possible comparisons to our rules in chapters six through eight of Berakhot. Nevertheless, the similarities between the practices are not deepY Heinemann undertook the most ambitious attempt to categorize early rabbinic prayer in a social context, using the mode of form criticism with the goal of discovering the sitz im Ieben of each prayer and blessing in the rabbinic system. 18 A review of his work which significantly advances our understanding of many aspects of early rabbinic prayer, is beyond the scope of this study. Finally, it is beyond my present range to undertake any comparison or contrast of the rules of our tractate with similar materials in early Christianity, Gnosticism or the Hellenistic world in general.

IV.

TRANsLATION AND CoMMENTARY FOR TRAcTATE BERAKHOT: THE TEXT AND ITS EXEGESIS

A. Mishnah Mishnah Berakhot is primarily a complex tractate of formulaic Middle Hebrew religious regulations. Each coherent unit of the text, or pericope, comprises about one to five lines. The rules of M. are formulated in a highly stylized literary syntax limited to a few basic structures. These include several types of patterned declarative sentences, formal lists, and disputes between two or more authorities or schools. A major feature of the materials at hand is their attribution of laws by name to specific rabbinic authorities who lived between the first and third centuries.

16 For a full discussion of the psalms on their own terms see Svend Holm-Nielsen, Hodayot: Psalms .from OJtmran, Denmark, 1960, esp. pp. 273-359. 17 See e.g. D. Barthelemy and J. T. Milik, Discoveries in the ]udean Desert I, OJtmran Cave I, Oxford, 1955, pp. l08ff. Also see L. H. Shiffinan, "Communal Meal at Qumran," Revue de Qymran, Sept., 1979, lOll, pp. 45-56. See also Heinemann, op. cit., passim, and S. Talmon, "Manual of Benedictions of the Sect of the Judean Desert," Revue de Qymran, volume 2, 1960, pp. 475-500. IB Heinemann, op. cit.

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In each of the following chapters I treat the materials according to the following agendum. I first offer a fresh translation of Mishnah Berakhot accompanied by an explanation of the texts. I base my translation on the critical Hebrew text of Nissan Sacks. 19 I consulted Sacks' critical apparatus throughout and also checked those manuscript facsimiles which were available to me for significant variant readings. In a few instances where a variant reading affects the meaning of a text, I include it in the body of the translation in brackets or refer to it in the commentary. I acknowledge my debt to Danby and others who previously translated these texts. However, whereas earlier translators tended to freely paraphrase, I have striven to render the texts into English in a more literal fashion in order to better convey to the reader the literary and formal structures of the material. Because Mishnah's language is often elliptical and its syntax so stylized, I have added many phrases to the translation in brackets to provide for it greater clarity and smoothness. I also make use of different typefaces to help the reader pick out citations from the Mishnah in the Tosefta. I present the texts one chapter at a time so the reader can best follow the subject of each section of Mishnah. In the comments which accompany the texts I concentrate on explaining the meaning of the rules before us. I describe how each unit relates to its immediate context in the chapter. I also specifically ask what each tradition may tell

us about the nature and historical development of early Jewish prayer. In a few cases I attend to the form of the unit in order to help explain the substance or proper context of the pericope.

B. Tosifta Along with the texts of M. in each chapter I present the relevant passages from Tosefta, the early Tannaitic appendix to M., edited sometime between the third to fifth centuries. The individual units of this document in almost all respects resemble those of M. I find in them structures of form and syntax similar to M: formalized declarative sentences, lists, disputes, and numerous attributions to rabbinic masters. But, in its larger conception, this document is very different from M. It was redacted to serve as an appendix to M. and so must be interpreted in conjunction with Mishnah. 19

The Mishnah with Variant Readings, Jerusalem, 1972, vol. I, pp.

1~99.

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I find as I present T., in the context of M., that T., for the most part, explains M. and supplements it. Occasionally T. presents a short collection of its own independent materials. In the course of my presentation of the texts of M., I provide a translation of each appropriate pericope ofT. at its appropriate place in the tractate. 20 With each unit ofT. I include a brief comment. My explanations for T. ask questions similar to those I pose to M.'s texts. I seek out the meaning of each rule in its context. I address special formal and substantive problems of each unit as needed. In addition I explain how each pericope in T. relates to its referent in M. Where a Toseftan unit is independent of M. I ask whether T. develops any substantial new conception of the system of early Jewish prayer. My uppermost concern is the substantive meaning of M. and T. Berakhot. I presently turn in the following chapters to my analysis of the texts. 21

20 I base my new translation on the critical edition of the Vienna Manuscript published by Saul Lieberman, 1he Tosifia, vol. I, pp. l-40. I also consulted the English translation of A. Lukyn Williams [Tractate Berakot (!): Mishnah and Tosifia, New York, 1921] and the German translation of Lohse and Schlichting [Dze Tosifia: Text/ Ubersetzungl Erklarung, Band I, Hqt I-III.] As I did for M., I cite in the text of the translation or in the comment to a pericope only those variants which affect the meaning of the text. I may add here that since Sack's edition of M. and Lieberman's edition of T. give full critical apparati with complete cross references to related traditions elsewhere in rabbinic literature, I do not duplicate this work in the present study. 21 The reader who has litde or no prior exposure to early rabbinic prayer may wish to refer to a standard Jewish daily prayer book to become more familiar with the full texts of the prayers and blessings to which the texts allude. A good compendium with English translations is J. H. Hertz, 1he Authorized Daily Prayer Book, New York, 1948.

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ABBREVIATIONS

Hanok Albeq, Shishah Sidre Mishnah, vols. I-VI, Jer.: 1952-1959 Abot deRabbi Nathan ARN Babli, Babylonian Talmud B. Ber. Berakhot Bereshit Rabbah B.R. Herbert Danby, The Mishnah: Translated .from the Hebrew Danby with Introduction and brief explanatory notes, London: 1933. Deut. Deuteronomy Mary Douglas, Natural Symbols: Explorations in Cosmology, Douglas, Natural Symbols N.Y.: 1973 Douglas, Purity and Danger Mary Douglas, Purity and Danger: An Ana[ysis if Concepts if Pollution and Taboo, London: 1966. Defus Rishon: First printed edition ofT., Venice, 1521. D.R. Erfurt MSS of T. E. Eleazar Tzvee Zahavy, The Traditions if Eleazar Ben Azariah, Missoula: 1977 Ezekiel Ezek. Genesis Gen. Joel Gereboff, The Traditions if Tmfon, Missoula: 1979. Gereboff, Tarfon Elijah b. Solomon Zalman (1720-1797) commentary of, GRA from M. ed. Romm. David Pardo, Sifer Hasde David Hasde David Heinemann, Prayer Joseph Heinemann, Prqyer in the Talmud: Forms and Patterns. English ed. by R. S. Sarason, Berlin: 1977 Joseph H. Hertz, The Authorized Dai[y Prqyer Book, N.Y.: Hertz 1974 Harvard Theological Review HTR Isaiah I sa. Marcus J astrow, A Dictionary if the Targumim, The Talmud Jastrow Babli and Yerushalmi and Midrashic Literature, N.Y.: 1971 Journal of Biblical Literature JBL Journal of Jewish Studies .IJS Jewish Quarterly Review JQR Leviticus Lev. Saul Lieberman, ed., The Tosifla: :(era'im, N.Y.: 1955 Lieberman literally lit. A Lukyn-Williams, Tractate Berakoth: Mishna and Tosephta, Lukyn-Williams N.Y.: 1921. Mishnah M. Megillah Meg. Monatsschrift fur Geschichte und Wissenschaft des MGWJ Judentums Manuscript MSS Mu. Babylonian Talmud: Codex Munich, reprint Jer.: 1971 Neh. Nehemiah Albeq

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429

Jacob Neusner, A History qf the Mishnaic lAw qf Purities, Leiden: 1974-1977 Neusner, Invitation Jacob Neusner, Invitation to the Talmud, N.Y.: 1973 Proceedings of American Academy for Jewish Research PAAJR Pes. Pesahim Qoh. Qohelet Revue des Etudes Juifs REJ Revue de Qumran RQ Sacks Nissan Sacks, ed., The Mishnah with Variant Readings, Mishnah Zera'im, Volume one, Jer.: 1972 Sem. Semahot Seride HaYerushalmi L. Ginzberg, Yerushalmi Fragments from the Genizah, N.Y.: 1909 Shab. Shabbat Sot. Sotah Tosefta T. TK Saul Lieberman, Tosifi;a KijShutah: A Comprehensive Commentary on the Tosifi;a, part i, N.Y.: 1955 Var. Variant reading Vienna MSS ofT. w. Y. Yerushalmi Zeb. Zebahim IQSa Serekh Ha-Edah in Jacob Licht, ed., Manual qf Discipline, Jerusalem: 1961 Neusner, HMLP

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- - . Learn Mishnah. N.Y.: 1978: Behrman. Petuchowski, J. J., ed. Contributions to the Scientific Study qf Jewish Liturgy. N.Y.: 1970. Priesendanz, K. Papyri Graecae Magicae. Vols. I, II. Berlin: 1928. Roth, Cecil. "Melekh ha-olam: Zealot Influence in the Liturgy?" JJS. Vol. XI. Nos. 3-4. 1960.pp. 173-175. Rowley, H. H. Worship in Ancient Israel: Its Forms and Meaning. London: 1967. Sacks, Y. L., ed. Commentary qf Elijah qf London. Jerusalem: 1956. Sacks, Nissan. 77ze Mishnah with Variant Readings. Order Zera'im (1). Jerusalem: 1972. - - , ed. Tosqfot Rabennu Yehudah Sirleon. Berakhot. Vol. I. Jerusalem: 1969. Sanders, J. A. The Dead Sea Psalms Scroll. Ithaca: 1967. Schwab, Moses, ed. The Talmud qf Jerusalem. Vol. I. Berakhoth. Reprint N.Y.: 1969. Spanier, A. "Die erste Benediktion des achtzehngebetes." MGW]. Vol. 81. 1937. pp. 714-716. Stendahl, Krister, ed. 77ze Scrolls and the New Testament. N.Y.: 1957. Sutcliffe, E. F. "Sacred Meals at Qumran?" Hrythrop Journal. Vol. I. 1960. pp. 48-65. Talman, S. "The Manual of Benedictions of the Sect of the Judean Desert." RQ Vol. 2. 1960. pp. 475-500. Tambiah, S. J. "The Magical Power of Words." Man. Vol. 3. 1968. pp. 175-208. Underhill, Evelyn. Worship. N.Y.: 1957. Vermes, Geza. The Dead Sea Scrolls in English. London: 1970. Weisenberg, E. J. "The Liturgical Term Melekh ha-olam." JJS. Vol. XV. Nos. 1-2. 1964. pp. l-56. Weiss, J. G. "On the Formula Melekh ha-olam as Anti-Gnostic Protest." JJS. Vol. X. Nos. 3-4: 1959. pp. 169-171. Zahavy, Tzvee. The Traditions qf Eleazar Ben Azariah. Missoula: 1977. - - . Studies in Early Jewish Prayer. Studies in Judaism, University Press of America. Lanham, MD: 1990. - - . 77ze Talmud qf the Land qf Israel: Tractate Berakhot, University of Chicago Press, Chicago: 1989. - - . The Talmud qf Babylonia: An American Translation. XXX.A: Tractate Hullin. Chapters 1-2, Brown Judaic Studies. Scholars Press, Atlanta: 1992. - - . The Talmud qf Balrylonia: An American Translation. XXX.B: Tractate Hullin. Chapters 3-6, Brown Judaic Studies. Scholars Press, Atlanta: 1993. - - . The Talmud qf Balrylonia: An American Translation. XXX. C: Tractate Hullin. Chapters 7-12, Brown Judaic Studies. Scholars Press, Atlanta: 1994. - - . "The Sabbath Code of Damascus Covenant X, 14-XI, 18: Form Analytical and Redaction Critical Observations." Revue de Qjimran. Paris: December: 1981. - - . "A New Approach to Early Jewish Prayer." History qfJudaism: the Next Ten Years, ed. B. Bokser. Brown Judaic Studies 21. Scholars Press, Chico, CA.: 1980. - - . "Sources for the Seasonal Ritual in the Third through Fifth Centuries." Proceedings qf the Ninth World Congress qf Jewish Studies. Jerusalem: 1986. - - . "Beruryah," 'joshua ben Hananiah," 'judah bar Ilai," "Meir," "Simeon bar Yohai," "Simeon ben Gamaliel," "Tarfon," "Yose ben Halafta." The Encyclopedia qf Religion, ed. M. Eliade. The Free Press, Macmillan: New York: 1986. - - . "Concentration for Prayer in the Mishnah and the Talmud," New Perspectives on Ancient Judaism, ed. J. Neusner. Lanham, MD: 1987. - - . "Tosefta Tractate Berakhot," The Tosifia Translated from the Hebrew. First Division. Zera'im, ed. J. Neusner. New York: 1986. - - . "Kavvanah (Concentration) for Prayer in the Mishnah and the Talmud," in New Perspectives on Ancient Judaism, Lanham: 1987. - - . "Altered States of Consciousness: Prayer in the Mishnah," 77ze Reconstructionist, Vol. UII, No. 6, April/May 1988. - - . "Three Stages in the Development of Early Rabbinic Prayer," in The Festschrifl for Marvin Fox, Brown Judaic Studies: 1989, vol. I, pp. 233-265.

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'Judaism, the Mishnaic Period," in 7he Anchor Bible Dictionary, New York: 1992, vol. III, pp. I 083-1089. - - . "The Politics of Piety: Social Conflict and the Emergence of Rabbinic Liturgy," in The Making ofJewish and Christian Worship, ed. L. Hoffman and P. Bradshaw, Notre Dame University Press: 1991. - - . "Political and Social Dimensions in the Formation of Early Jewish Prayer: the Case of the Sherna'," in the Proceedings of the Tenth World Congress of Jewish Studies, Jerusalem, Division C, Vol. I, pp. 33-40, Jerusalem: 1990. Zahavy, Tzvee and Brooks, Roger. "Form Analysis of Mishnaic Sentences." Computing in the Humanities, ed. P. Patton. D. C. Heath, Lexington Books: 1981. Zuckermandel, M. S. Tosephta: Based on the EifUrt and Vienna Codices. Reprint, Jerusalem: 1970.

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MISHNAH-TOSEFTA BERAKHOT TEXT AND COMMENTARY

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MISHNAH-TOSEITA BERAKHOT CHAPTER ONE

The first chapter of our tractate deals with the recitation of the Shemac, a primary prayer of rabbinic liturgy. The Shemac is comprised of verses out of the books of Deuteronomy (6:4-9 and 11:13-21) and Numbers (15:37-41). These verses are framed before and after by rabbinic blessings, short paragraphs of prayers which express major beliefs of early rabbinic Judaism. Mishnah here does not find it necessary to tell the reader what words, verses, and paragraphs make up the Shema ares_ and the Samaritan have not exchanged our produce with theirs, we may designate the produce as terumah and tithe for other produce in our possession, or we may designate part of the produce as terumah and tithe (which we will later separate from it) without worrying that we may be designating as tithe produce of the 'am ha> ares_ or Samaritan from which terumah and tithes already may have been separated (cf. T. 4:5, above, and M. 5:3-11, below). If the produce is second tithe, we may redeem it with coins without worrying that other, unconsecrated produce has been substituted for it. F-H deal with the issue of credibility. If the 'am ha> ares_ admits that he has exchanged the produce, but claims that he left in its place produce of equivalent status, do we believe him? G-H follow the principle familiar to us from T. I :4-6, that "the mouth that forbade is the mouth

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that permitted." Since the 'am ha'ares. could have kept silent and we would have assumed the produce had not been exchanged, he should be believed to say that he replaced our produce with some of equivalent status. It we do not believe the latter statement, we also should not believe the former. In either case, then, the produce remains in its presumed status. F-H therefore do not differ in substance from the briefer apodosis at T regarding the Samaritan. Tosefta's separate treatment of the 'am ha' ares. and the Samaritan does not derive from any substantive difference in the rulings themselves. The difference between M. and T. here is due to formulary preferences alone. 1-M's rather obvious gloss refers to A-H in their entirety. A. He who sends [produce] by the agency of an 'am ha' ares_ or by the agency of a Samaritan B. need not scruple with regard to tithes or with regard to seventh-year produce. C. He who sends [produce] by the agency of a gentileD. behold, this one scruples with regard to tithes and with regard to seventh-year produce. E. But [in the case of] gentile ass-drivers who lead [V: mwddyn; E: mdyyryn; Lieberman reads myddyn] 19 [their asses] from the threshing floor to the city, F. he need not scruple with regard to tithes or with regard to seventhyear produce, G. because it [the produce] is presumed to be guarded [that is, the assdrivers assume themselves to be watched at all times]. T. 4:26 (p. 83, Is. 67-71) H. He who mills [his wheat] at [the mill] of an 'am ha'ares_ [that is, one who has his wheat milled by an 'am ha'ares_] or at [the mill] of a Samaritan I. need not scruple with regard to uncleanness [that the wheat will be wetted down and rendered susceptible, and then made unclean, by the 'am ha' ares_ or Samaritan]. J. He who mills [his wheat] at [the mill] of a gentileK. behold, this one scruples with regard to uncleanness. T. 4:27 (p. 83, Is. 71-72) (cf. M. 3:4A-D; b. Git. 6lb)

T. 4:26-27 form a small subunit that applies the principle of M. 3:4 to additional cases. B, D, and F carry forward the formulary apodoses ofT. 4:24T and 4:25V. I and K are variations on this pattern, dealing

19

See Lieberman, TK, I, p. 242, Is. 69-70; Kramer, p. 71, n. 84.

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now with the issue of cleanness, rather than tithes and seventh-year produce. The protases A and C balance H and J. The distinction between the cam ha' are,r and the Samaritan, on the one hand, and the gentile, on the other, is carried forward from T. 4:22-25. T. now includes both the cam ha'are,r and the Samaritan in a single protasis, like M. The protases A, C, H, and J also continue the "he-who" syntax of M. 3:4 and T. 4:22-25. H and J, in fact, are a variation of M. 3:4A's protasis. The whole, then, is exceedingly well balanced. We now apply to the case of an agent M.'s principle that camme ha' are,r and Samaritans are assumed to respect the scruples of the person who is meticulous about tithing and to treat his produce with care, while gentiles are not assumed to behave so. E-G give us a case in which we do not worry about gentiles. Gentile ass-drivers who load down their animals at the threshing floor of one who separates tithes, to take the produce to the city, are not suspected of exchanging the produce, since the owner follows on behind them, and they assume themselves to be watched at all times (cf. T. Toh. 6:16). H-K apply our rule to the matter of uncleanness. The case is that of M. 3:4A. The cam ha'are,r and the Samaritan, but not the gentile, can be trusted not to wet down the wheat and render it susceptible to uncleanness, and, thereafter, unclean. The cam ha'are,r and Samaritan are assumed to respect the scruples of the h.aber. See Neusner, HMLP, Part Twelve, pp. 184-188, for additional illustrations and discussion. A. They may leave temmah in the keeping of an Israelite [a non-priest] who is an cam ha' ares_, B. but [w-] they may not leave temmah in the keeping of a priest who is an cam ha' ares_, C. since he is shameless regarding it [lbw gs bh]. T. 4:28 (p. 83, Is. 72-74) (b. Git. 6lb) D. They may mill and sift [flour] at [the mill] of those who eat seventhyear produce [E lacks:] and at [the mill] of those who prepare [foodstuffs] in [conditions of] uncleanness, E. but they may not mill [so V; E: "but they do not prepare foodstuffs"] for those who eat seventh-year produce or for those who prepare [foodstuffs] in [conditions of] uncleanness. T. 4:29 (p. 83, ls. 74-75) (b. Git. 61 b; cf M. She b. 5:9, M. Git 5:5)

T. 4:28-29 are a formally independent subunit, although they are thematically linked to the foregoing materials. The distinction between

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types of people to whom one temporarily may give one's produce is carried forward, but we no longer deal with 'amme ha' ares_, Samaritans, and gentiles. The matter of uncleanness, raised at T. 4:27, is continued here, but the problem is no longer exchanged produce. A new formulary pattern begins at T. 4:28, formally distinguishing this set from T. 4:22-27. In place of the "he-who" syntax we now have a plural active participle as the initial word at A and D. The key verbs PQJJ and THN nonetheless are common to this unit and previous ones. The unit is internally balanced. A, parallel to D, contrasts with B, parallel to E (although the latter parallel is not as precise as the former). We may leave our clean terumah in the keeping of an 'am ha' ares_ who is not a priest, since we assume that he will be careful not to wet it down and thereafter render it unclean (as at M. Toh. 7:8). But an 'am ha' ares_ priest will not keep his hands off it and presumably will eat it. D's rule is parallel to that of A. We may have our flour milled and sifted by those who eat seventh-year produce and those who prepare foodstuffs in conditions of uncleanness. In the former case, we do not worry lest the produce be exchanged for seventh-year produce, as at T. 4:22-24. In the latter, we assume that produce that has not yet been rendered susceptible to uncleanness will not be wetted down and made unclean, as at T. 4:27. E's contrasting rule parallels that of T. 3: lA (Leazar Hisma'). We do nothing that might lead to a violation of the law. A. He who sends produce to his friend [so V, E; ed. princ.: "to a haber"] and [the friend] decides to return it, B. treats it as it was [i.e., assumes that the produce has not been exchanged but remains in the same status as when he sent it]. C. Abba Saul says, "I scruple lest he have exchanged it." D. R. Simeon b. Gamaliel says, "If he had a sharecropper who knows how to tithe properly, but he does not deem him trustworthy with regard to tithing, E. and he [the sharecropper] brought him some of his [the landlord's] produce and said, 'This is your produce, this is fully tithed,' F. "he is believed." G. Rabbi says, "He is not believed, H. "for one who is suspected regarding some matter does not render judgment concerning it and does not give testimony concerning it." T. 4:30 (pp. 83-84, ls. 75-79) (D-H: cf. M. Bek. 5:4; H = T. 5:2, M. Bek. 5:4, 4:10, T. Bek. 3:19, b. Bek. 35b, b. Yoma' 78a, y. Yeb. 2:11, y. Dem. 4:8, Genesis Rabbah 98:4)

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T. 1:30, which concludes T.'s essay on M. 3:4, is formally autonomous of the preceding materials. A-D and D-H are two distinct units. Neither displays much internal balance. Only F-G are contrasting apodoses. The dispute at B-D is not balanced. D-F display some apocopation, since D-E is a complex protasis. The problem of A-C is similar to that of T. 4:26A-B. We send tithed produce to another, who decides to send it back. B reiterates the ruling ofT. 4:26. We do not suspect that either the agent or the recipient has exchanged the produce. Abba Saul, in C, disagrees. D-H deal with a totally different problem. If a sharecropper knows how to tithe properly, but does not ordinarily tithe his own produce, is he believed to say that he has tithed the produce of his landlord, who is scrupulous about tithing? Simeon b. Gamaliel holds that he is believed, since he does not testify concerning his own produce. There is therefore no personal advantage to be gained by lying. Rabbi holds that we do not believe him. Since he is suspected with regard to tithing his own produce, we do not accept his testimony in any case involving tithing. The same principles are attributed to Simeon b. Gamaliel and Rabbi in a different dispute at M. Bek. 5:4. 3:5-6 A. He who gives [his tithed produce] to the mistress of an inn [so that she may prepare it for him to eat] B. tithes that which he gives to her and that which he receives [back] from her, C. since she is suspected of exchanging [her own doubtfully tithed produce for his tithed produce]. D. Said R. Yost':, "We are not responsible for deceivers. E. "He tithes only that which he receives from her." M. 3:5 (b. Git. 61b, b. Hul. 6b, y. Dem. 3:6; D = y. M.S. 5:1; cf. T. Pe'ah 2:5, T. Dem. 7: 12, y. Suk. 4:2) F. He who gives [his tithed produce] to his mother-in-law G. tithes that which he gives to her and that which he receives from her, H. since she is suspected of exchanging that which is spoiled. I. Said R. Judah, "She desires the well-being of her daughter and feels shame before her son-in-law [that is, she is ashamed to feed her sonin-law spoiled food]. J. R. Judah concedes in the case of one who gives seventh-year produce to his mother-in-law, that she is not suspected [0 1, B, G 1, G 7, Ca, C, L (added in margin), M, N, P, K omit: "of exchanging"] of feeding her daughter seventh-year produce. M. 3:6 (b. Git. 61b, b. Hul. 6a-b)

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M. 3:5-6, which conclude our chapter, are a well-balanced unit. The protases A and F, continuing the "he-who" style, follow a single pattern, hnwtn l- + noun. B and G arc identical apodoses. C and H are identical rationale clauses. H adds two words, 't hmtqlql, to C. Both A-C and G-H are followed, at D and I respectively, by attributed declarative sentences that depend for their meaning on the preceding materials. Only J of M. 3:6 has no corresponding lemma at M. 3:5. Substantively as well, J appears to be an afterthought, although it, too, depends on the preceding materials. We deal, then, with a formally elegant, unitary construction. The issue of M. 3:4 is carried forward here. We deal now with certain types of people who are suspected of intentionally exchanging their own produce for the tithed produce that we give to them. We give food to the mistress of an inn so that she may prepare it for us. She is suspected of substituting her own inferior produce for our better produce. We therefore must tithe that which we receive back from her as well as that which we give to her. Yose takes issue with B's ruling that we must tithe the produce which we give her. He holds that we do not take responsibility for deceivers. Y ose's opinion thus links our unit with the concerns of the first half of the chapter, 3: l-3. He disagrees in this instance with the general rule that we take responsibility for tithing produce that leaves our possession, lest others consume it untithed. F-H give us the parallel case of food that one who is scrupulous about tithing gives to his 'am ha'ares. mother-in-law to prepare for him. Here we suspect her of substituting her own better produce if that of the owner is spoiled, or if she spoils it while preparing it. Judah, at I, does not disagree with F-H. He merely supplies an additional rationale for the mother-in-law's actions. 20 J is somewhat out of joint with F-I, since seventh-year produce has not been mentioned previously. J nonetheless is an intelligent and appropriate gloss. The 'am ha' ares. mother-in-law does not scruple about tithed produce, but she may be relied upon not to feed her daughter seventh-year produce, for she stands in awe of the seventh-year taboo. A. A man gives to his [female] neighbor a dish [of food] to cook for him, and dough to bake for him, B. and he does not scruple about the yeast and the spices in it with regard to tithes and with regard to seventh-year produce. C. Under what circumstances?

°Cf.

2

Epstein. Mebo'ot, pp. 107, 123.

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D. When he [himself] has put in the yeast and the spices. E. [If] he has not put in the yeast and the spices, F. behold, this one scruples about the yeast and the spices with regard to tithes and with regard to seventh-year produce. T. 4:31 (p. 84, ls. 79-83) (y. 3:6, b. Hul. 6a; cf. T. Ma. 3:13) G. A man gives to the mistress of an inn a dish [of food] to cook for him, H. and she puts down the pot before him, and empties it [i.e., she removes it to empty its contents], I. even among gentiles, J. and he does not scruple. T. 4:32 (p. 84, ls. 83-84) (cf. M. 3:5)

T. 4:31-32 relate to M. 3:5-6. The pericopae are composed of declarative sentences. The protases A and G are well balanced, but follow a different formulary pattern from that of M., nwtn ,dm l-, instead of hnwtn l-. The apodoses B and J are identical in their basic articulation, )nw llwff, although B is more developed. C-F gloss A-B. D-E are balanced and F balances B. G, H, and I form a complex protasis. A-B rule that one who is scrupulous about tithing may give to his neighbor a dish of food to prepare for him or a loaf to bake for him without worrying about the status of the spices or the yeast in them. The assumption behind this ruling is that the neighbor respects his scruples and will take care not to add any spices or yeast of her own. C-F reject A-B outright. Only when the owner of the produce himself has added the spices or the yeast can he be certain that his neighbor will not do so. Otherwise we assume that she will, and that the finished product will have to be tithed. G-J qualifY M. 3:5's ruling about the mistress of the inn. If she sets down the cooking pot in front of the owner of the produce so that he may observe all of her actions, and then removes it from under his observation in order to empty out the contents, he does not worry that she may exchange the produce in stealth, since she already has displayed her good intentions. The issue of the gentiles, glossed in at I, is not whether the produce has been exchanged, but whether a gentile has stirred or emptied the pot while it was removed from the owner's supervision, since food prepared in any way by gentiles is forbidden to Israelites (Lieberman). Even among gentiles, the owner does not scruple, since the mistress of the inn has demonstrated her reliability.

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MISHNAH-TOSEFTA DEMAI CHAPTER FOUR

Chapter Four, like its predecessor, is a coherent unit that deals with a single theme: the credibility of someone who ordinarily is not trusted in the matter of tithing. Specifically, our chapter enumerates types of circumstances in which the testimony of such a person may be believed. Two formal subunits, 4: l-2 and 5-6 (+ 7), are articulated through recurring pairs of apodoses, (y)' kl 'l pyw vs. l' y' kl 'd .[y'fr at 4: l-2, and (hry zh) n'mn vs. 'ynw n'mn at 4:5-6+ 7. The "he-who" construction of the primary protasis occurs throughout the chapter, except at 4:3-4 which, on both formal and substantive grounds. constitute an autonomous set of materials. The formal articulation once again exactly corresponds to the substantive divisions of the chapter. The first subunit, 4: l-2, composed of well-balanced declarative sentences with occasional light apocopation, elaborates the point that, in extenuating circumstances, we may rely on the word of an 'am ha' ares_ vendor who claims that the produce we have purchased from him has already been tithed. Thus, if we have forgotten to tithe dema'i-produce before the Sabbath, we may rely on the vendor's word and eat the produce throughout the Sabbath, but at the close of the Sabbath we must tithe it (4: lA-J). Similarly, if terumah of the tithe from dema'i-produce falls back into the produce and thereby consecrates the whole mixture, rendering it unfit for consumption by a non-priest, we may rely on the vendor's word that it previously had been tithed, rather than lose the produce entirely (4:1K-L). So, too, if we are compelled by the vow of an 'am ha' ares_ friend to eat with him on Sabbaths, we may rely on his word that the produce has been tithed, but only on the first Sabbath. The second subunit, 4:5-6+ 7, also consists of balanced declarative sentences with some light apocopation. Exchanges of dialogue loosen the formal structure at certain points. The subunit deals with two further issues. First, do we believe the word of our 'am ha' ares_ agent that he has obeyed us if we have instructed him to buy for us tithed produce? M. 4:5 rules that we believe him if we have a way of verifYing his statement, but not otherwise. Thus if we tell him to buy tithed produce from a specific vendor, the vendor's testimony can be sought.

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But if our instructions are general, or if the 'am ha'ares admits that he purchased from someone else, we do not believe his statement that the produce is tithed. Secondly, 4:6G-L elaborate Simeon b. Gamaliel's position (at T. 4:30F-G) that we may believe the testimony of someone who is suspected with regard to a particular matter if he testifies concerning someone else rather than himself. In this case there is no personal advantage to be gained by lying. Thus, if we enter a city where we do not know anyone, we may believe the testimony of a stranger that so-and-so separates tithes, but not that the stranger himself tithes. 4:6M-P and 4:7 deal with a secondary case. What if two people testify concerning each other? Do we accept both of their testimonies, or do we assume that they are in collusion with each other, and that each one thereby benefits? 4:6P conforms to the opinion of Judah at 4:7E that we nonetheless believe them both~an extreme application of Simeon b. Gamaliel's principle. The anonymous ruling at 4:7D holds that we suspect them of collusion and do not believe them. Appended to the first subunit, 4: l-2, is an autonomous pair of rulings, 4:3-4, which does not follow the formal patterns of the chapter. 4:3 is a balanced dispute between Eliezer and Sages. 4:4 is a set of declarative sentences without much balance. The primary protasis, 4:4C, begins with my I + singular perfect verb, rather than h- + singular active participle ("he-who"). 4:4's ruling concerns tithing-related problems that have to do with the Sabbath, and thus is congruent with the setting, but not the main concern, of 4: 1-2. This accounts for its redaction in our chapter. Although on the Sabbath we may not distribute tithes that we already have designated during the week, we may feed them to a priest or a poor person who are our regular guests at Sabbath meals. 4:3's autonomous debate deals with the issue of designating tithes. It has been prefaced to 4:4 on account of this thematic congruity. Eliezer holds that we need not even designate tithe for the poor from dema'i-produce, since we are not going to separate it. Sages hold that we still must designate this tithe, even though we do not separate it. The location of these autonomous materials in our chapter gives evidence for an agglutinative process that leads to the formation of everlarger substantive and formal units. 4:3 has been associated with 4:4 on the basis of a common substantive thread, the issue of designating tithes. 4:3 + 4 subsequently have been joined to 4:1 + 2 on account of a different common thread, the theme of tithing and the Sabbath. 4: 1 and 2 have been linked with each other on the basis of a common apodosis-pattern as well as a shared theme. 4:5-6 display sufficient

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formulary and substantive congruence to indicate that they originally were formulated together. 4:7, on the other hand, does not show enough formulary continuity with 4:5-6 to prove that all three pericopae were formulated together, but it is closely associated with 4:6M-P at the level of meaning and does display some common verbal elements with the immediately preceding materials. At the final level of redaction two agglutinated units, 4: 1-2+ 3-4 and 4:5-6+ 7, have been joined together to form our present chapter. Only three lemmae in our chapter are attributed. One name is late Yavnean or early Ushan, Simeon of Sezur (at 4:1L); a second is Ushan, Judah (at 4:6E). The third name, Eliezer (at 4:3A), is most likely the Yavnean Eliezer b. Hyrcanus. 1 T. to our chapter is unusually brief, since we lack any lengthy sets of supplementary materials. On the other hand, T. already has dealt with the larger theme of credibility, inter alia, in several lengthy essays attached toM. 1:3, 3:2-3, and 3:5-6. The opposing principles of Simeon b. Gamaliel and Rabbi at T. 4:30D-H generate rulings in our Mishnah chapter at 4:5-6+7. We note that our appended pericopae, M. 4:3-4 (and 7) are not attested by T., a good comment on what is, and what is not, important in the chapter. But T. also does not comment on M. 4:2. T.'s few attributed materials mostly are assigned to Ushans and post-Ushans: Yose (at 5:4), and two disputes between Simeon b. Gamaliel and Rabbi (at 5:2 and 4). Simeon of Sezur, late Yavneh or early Usha, is assigned a further ruling, at 5:2, in addition to the one cited there from M.

1 Neusner, Eliezer, I, pp. 350-51, lists this pericope among those "legal pericopae not demonstrably part of the traditions about Eliezer b. Hyrcanus." The substance of this dispute is absolutely basic. This, of course, does not prove that it is Yavnean.

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4:1

A. He who purchases produce from one who is not [deemed] trustworthy in the matter of tithing, and forgot to tithe it, B. [0 1, G 1, Ca, C, L, S, P, K, M, B, Pa, N lack: and]Z inquires of him [the vendor] on the Sabbath, C. [0 1, B, GI, G7, Ca, C, L, 0 2, S, P, K (in margin), M add: and] may eat [above-listed MSS.: "he eats"] at his [the vendor's] word. D. [But] at nightfall at the close of the Sabbath, E. he should not eat until he has tithed [the produce]. F. [If] he did not find him [the vendor, on the Sabbath], G. [and if] someone else who is not [deemed] trustworthy in the matter of tithing said to him, "It is tithed," H. he eats at his word. I. [But] at nightfall at the close of the Sabbath, ]. he should not eat until he has tithed [the produce]. K. [Regarding) terumah of the tithe from dema,i-produce that returned to its place [i.e., that fell back into the now tithed dema,i-produce from which it was originally separated, thus rendering the entire mixture prohibited to a non-priest (meduma')]L. R. Simeon of Sezur says, "Even [>p] on a weekday he inquires of him [the vendor] M. "and eats at his word." M. 4: I (A-E: cf T. 5: 1, y. 4:2; K-M = T. 5:2, y. 4:3, b. Men. 30b, b. Hut. 75b; cf. b. Ket. 55b)

M. 4: I is composed of two units, 3 A-J and K -M, which formally are joined through a recurring apodosis, ,wkl 'l pyw, at C, H, and M. The first unit is a series of balanced declarative sentences, A-C, contrasted with D-E, and F-H, contrasted with 1-J. The secondary protases D and I depend for their meaning on A-B and F-G. 1-J repeat D-E, while H repeats C. Balance thus is achieved through the repetition of paired apodoses, C vs. E and H vs. ]. The two primary protases A-B and F-G are not balanced, but share the subordinate phrase fynw n,mn ? hm'srwt. The second unit, K -M, is a slightly apocopated sentence. The "he-who" construction of the primary protasis, begun at M. 3:2A, is continued in our chapter, first at M. 4: lA. The new formulary

Cf. Epstein, Mabo>, p. 1078, regarding the waw-apodosis. MSS. 0 1, G 7, Ca, L, M, P, K, G 1, GS, B, 0 2, S in fact begin a new pericope at K. The first nine of these MSS. also begin a new pericope at G, an error on internal, formal grounds. Cf. Sacks-Hutner, pp. 186-87, nn. 8 and 12. T. 5:1 and 2 treat separately M. 4:1A-D and K-M. 2

3

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apodosis (C, H, M vs. E, ]), however, indicates the commencement of a new formal and substantive unit. Our pericope rules that, in extenuating circumstances, we may give credence to someone who ordinarily is not deemed trustworthy with regard to separating tithes. Two cases arc illustrated. In the first, we deal with dema,i-produce that someone has forgotten to tithe before the Sabbath. Tithing on the Sabbath is prohibited (cf. M. Shab. 2:7). Rather than eat nothing, the man may rely throughout the Sabbath on the vendor's word that the produce had been fully tithed before it was sold. He may even rely on someone else's word if the vendor cannot be found. But as soon as the Sabbath has ended, and tithing once again is permitted, he must tithe the produce before eating it. The lenient ruling is due only to an emergency situation. In the second case, terumah of the tithe falls back into dema,i-produce from which it had been separated. The whole is now meduma', a mixture of consecrated and unconsecrated produce, and may be eaten only by a priest. Here, too, we have an emergency situation involving considerable loss to the purchaser. We therefore may rely on the vendor's word that the produce had already been tithed. T. 5:2E offers a different explanation of M.'s rulings. T. supposes that the 'am ha, ares_ vendor stands in awe of both the Sabbath and meduma' taboos, and therefore will not lie where either is involved. But in the former case, this explanation conflicts with M.'s insistence that we nonetheless must tithe such produce at the close of the Sabbath. A. He who purchases produce from one who is not [deemedJ trustwortlry in the matter rf tithing, and forgot to tithe it, B. inquires rf him on the Sabbath and eats on the festival, C. [he inquires] on the festival and he eats on the Sabbath [so E; V, ed. princ.: "he inquires of him on the Sabbath and he eats on the festival and he eats on the Sabbath;" Lieberman reconstructs B-C as follows: "he inquires of him on the Sabbath and eats (= M. 4: lA-B), on the festival and eats, on the festival and eats on the Sabbath"], D. [If] he inquires of him on a weekday for [/-] the Sabbath, E. at [/-] the close of the Sabbath he should not eat until he has tithed. [GRA, followed by MB, reads D-E as follows: "(If) he inquires of him on a weekday for the Sabbath, (or) on the Sabbath for [!-] the close of the Sabbath-he should not eat until he has tithed."] F. [If] he inquires of him on the Sabbath for the following Sabbath, G. he should not eat until he has tithed. H. One who sold produce on the eve of the Sabbath at nightfall, I. and he said, "It is tithed," ]. [E lacks:] he who purchases from him,

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K. at the close of the Sabbath should not eat until he has tithed. T. 5:1 (p. 85, ls, 1-5) A = M. 4: lA; cf. y. 4:2)

T. 5:1 applies the ruling of M. 4: lA-D to additional cases. T. 5: lA = M. 4:1A. The MSS. readings of B-E are confused. 4 MS. Erfurt's reading of A-C is supported by y. 4:2 and also makes good sense as a balanced ruling. We follow GRA at D-E, whose reading again yields a balanced, intelligible ruling. 5 As corrected, B-C balance D-E, both depending on A's primary protasis, as do F-G. H-K has a separate protasis. The positive apodosis, ,kl, appears at B and C; its negative counterpart at E, G, and K. The whole is a series of well-balanced sentences. M. 4: lA-D has told us that we may eat at the vendor's word during the Sabbath, since it is forbidden to tithe the produce at that time. T. extends the application of this ruling and draws from it additional consequences. If the Sabbath is immediately preceded or followed by a festival, we also may eat during the second of these days, relying on the vendor's word given during the first, since it is equally forbidden to tithe during a festival, and there is no time between the Sabbath and the festival during which tithing is permitted. D-G give us the reverse case. If one inquires on a weekday about produce that he intends to eat only on the Sabbath, or on the Sabbath about produce that he intends to eat only at the close of the Sabbath or on the following Sabbath, he must tithe, since there is a span of time in the interim during which tithing is permitted. The exigencies of the previous cases no longer exist. H-J give a different case, but the principle remains the same. We now buy produce for the Sabbath at the very last moment before the Sabbath begins. The vendor volunteers the information that the produce is tithed. Since it is already too late to tithe it for the Sabbath, we may rely on his word. At the close of the Sabbath, however, the produce must be tithed.

4 At both A-c and D-E, the MSS. readings (excepting MS. Erfurt at been corrupted through the haplography of a single word (bsot at E) or (bywm twb at B-C). 5 The reading found in the two MSS. and ed. princ. contradicts the sense sage as a whole, which illustrates a single principle: only in an emergency on the 'am ha' ards word. Otherwise we must tithe.

A-C) have two words of the pasdo we rely

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A. [Regarding] ternmah qf the tithe .from dema'i-produce that returned to its place, B. R. Simeon qf Sezur sqys, "Even on a weekdqy he inquires qf him [the vendor] and eats at his word." C. Moreover, said R. Simeon of Sezur, "He who separates terumah and tithes, [E lacks:] and the produce [from which they were separated] is [subsequendy] stolenD. "he goes and inquires of him [the vendor] and comes [back] and eats at [Lieberman adds: his word] that which he had separated, E. "for just as the fear of the Sabbath is upon the 'am ha' ares., so the fear of dimua' [contamination of unconsecrated produce by ternmah] is upon [him]." F. [E lacks: An 'am ha' ares. who said,] "This is untithed produce [tba and this is terumah, G. "this is certainly untithed [wqyy] and this is dema'i," H. [E lacks: even though they have said,] "He who is suspected regarding some matter does not render judgment concerning it and does not give testimony concerning it [= T. 4:30H]," I. Israelites are not suspected on that account. ]. A gentile who cried out and said, "Come ye and buy! It is dema'iproduce!6 It is 'orlah-produce [produce of the first three years of the growth of a new sapling; its consumption is forbidden, cf. Lev. 19:23]! It is reba)-produce [produce of the fourth year of the tree's growth, which must be consumed in Jerusalem like second tithe; cf. Lev. 19:24]!" K. is not believed, L. since he is as one who praises his [own] wares. M. But [if] he said [E lacks: to him], "From so-and-so, [E lacks: a gentile,] I obtained them, N. "from so-and-so, a Samaritan, I obtained them, 0. "from my own [produce] have I brought them," P. "he is believed to declare stringendy," Q, the words of Rabbi. R. R. Simeon b. Gamaliel says, "He is not believed, S. "for the words of a gentile do not change the status of anything [/' m'!Jn wl' mwryqyn]." T. 5:2 (pp. 85-86, ls. 56-14) (A-B = M. 4:1K-L; C-E: cf. y. 4:2; H: cf. T. 4:30H; J-Q y. 6: 11; j-L: b. Yeb. 122a)

6 See Lieberman, TK, I, pp. 247-48, 1. 11; Kramer, p. 78, n. 23. Jastrow, p. 1062: "a newly broken field; they are fruits of a new land (in which case they would be forbidden as 'Orlah)." Lieberman cites the interpretation of Rashi, b. Yeb. 122a, s.v. fl 'zyqh, "fruits of a cultivated, guarded field in the seventh year (thus liable to removal)."

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T. 5:2A-B = M. 4:1K-M. C-D give a second ruling attributed to Simeon of Sezur that further illustrates M.'s principle. In an emergency, as, for example, when our newly tithed produce is stolen, we may eat at the vendor's word tithes separated only on account of doubt. 7 E's gloss refers back to A-B and has been explained above. F-I and j-S are two autonomous rulings. In juxtaposition they contrast the credibility of an Israelite 'am ha' are,J. vendor with that of a gentile vendor. Both rulings are phrased in declarative sentences. F and G are balanced pairs. J is a balanced triplet, as are M-0. K is balanced by P. P-R are a balanced dispute, glossed by S. H cites the rule of Rabbi, T. 4:30H, which is rejected in extreme fashion at I. F's protasis is elliptical. If we read it in the light of H, then the 'am ha' are,J. testifies concerning the produce of another, and the whole follows the opinion of Simeon b. Gamaliel, T. 4: 30D-F, that we accept testimony regarding another person from someone who himself is not reliable on the matter in question. The apodosis I refers back to H, h_Iwd!nh_Idw. We would have preferred here the formulary apodosis, "he is believed." j-L assume that gentile produce is not liable to the laws of 'orlah and reba'y, and may be eaten by Jews. We dismiss the gentile's claim that his produce is fresh and comes from young saplings, since we assume that he praises his merchandise only in order to make a sale. At M-0, a different set of circumstances, the gentile acknowledges that the produce has not been tithed, since it derives from gentiles and Samaritans. We therefore believe his stringent statement. (Our ruling assumes that gentile and Samaritan produce is liable to tithing.) In the case of M-N, furthermore, we can verify his claim by consulting the persons he names. Simeon b. Gamaliel, R-S, rejects outright the testimony of a gentile. S thus articulates a pointed contrast with I, both lemmae reflecting positions attributed to Simeon b. Gamaliel. 4:2

A. He who imposes a vow [hmt[yr] on his fellow that he eat with him

[Segal, p. 63, n. 7: "He said, 'May you be forbidden to derive any benefit from me if you do not eat with me': c£ Ned. III, l; IV"], B. and he [the guest) does not trust him in the matter of tithing~ C. he [the guest) may eat with him on the first Sabbath,

7 The MSS. reading, "terumah and tithes," cannot be correct, since terumah is not separated on account of doubt. y. 4:2 reads, "terumah of the tithe."

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D. [0 1 lacks; cf TYT, Albeck:] even though he does not trust him in the matter of tithing, E. but only if he [the host] will say to him, "This [food] is tithed." F. But [w-] on the second Sabbath, G. even if he [the host] vowed to withhold any benefit from him [the guest, unless he ate with him], H. he [the guest] should not eat until he has tithed [the produce]. M. 4:2 (A = y. 4:2; cf y. 4:2)

M. 4:2 formally is only very loosely related to M. 4: l. The formulary apodosis of 4: l C, H, and M, l' f kl 'd fy'sr, recurs at 4:2H. 4: l G's dictum, m'sryn hn, occurs at 4:2E, while 4:1 C and H, (f)'ynw n'mn 'l hm'srwt, are related to 4:2B's verbal phrase, (whw') 'ynw m'mynw 'l hm'srwt. Otherwise the two pericopae are not similarly formulated. Our pericope consists of two sentences, the first (A-E) lengthy and apocopated, the second (F-H) briefer and dependent for its meaning on A-E. The two apodoses C and H are balanced(+/- 'kl), while the protases A+ B and F + G are not. D repeats B, and is superfluous with regard to its meaning. It surely is a gloss. G rephrases A. Our pericope continues the Sabbath theme of 4: lA-J, and applies the rule of extenuating circumstances to a further case. We deal here with someone not deemed trustworthy in the matter of tithing who, by means of a vow, compels his friend who observes the laws of tithing to eat with him on the Sabbath. The friend, of course, has other, tithed food at home, but, for the sake of maintaining social relations, we allow him to eat with the 'am ha' ares_ for one Sabbath only, as long as the latter claims that the food has been tithed. We may rely on the 'am ha'ares_'s word in these circumstances. H's formulary apodosis indicates that, in subsequent weeks, the produce must be tithed by the friend before the Sabbath, or the 'am ha'ares_'s invitation must be rejected outright, without regard for the social consequences. The principle of tithing ultimately is affirmed over the desire for harmonious relations with those who do not tithe. 4:3-4 A. R. Eliezer says, "A man need not designate tithe for the poor from dema'i-produce," B. and Sages say, "He designates [tithe for the poor] but he need not separate [it]." M. 4:3 (b. Ned. 84a, b. Mak. l6b) C. He who [my f-] designated terumah of the tithe [OI, GI, Ca, Pa, L (in margin), P, N lack: from dema'i-produce], or [w-] tithe for the poor from certainly untithed produce

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D. should not take them [i.e., actually separate and distribute them] 8 on the Sabbath. E. But [w-] if a priest or a poor person were accustomed to eat with him, F. they may come and eat [the tithes], G. but only if he informs them [that they are eating tithe].

M. 4:4

M. 4:3-4, both formally and substantively, are autonomous of the pericopae that surround them. The "he-who" construction of the primary protasis at M. 4:1-2 is interrupted here and resumes at 4:5-6. 4:3 is a dispute, while 4:4 is a pair of declarative sentences lacking in formal balance. Our unit redactionally is linked to the previous one on the basis of a common theme that is secondary to the interests of the chapter as a whole, namely, problems of tithing related to the Sabbath. This is a major concern at 4:4. 4:3, which can stand by itself, has been prefaced to 4:4 on account of the shared issue of designating tithes. Eliezer, at A, holds that we may altogether dispense with the designation of tithe for the poor from dema'i-produce, since we are not going to distribute it. Sages rule that we must designate it, even though we do not separate it, since our tithing procedure for dema'i-produce must formally parallel that for certainly untithed produce, and our procedure for tithe for the poor in the third and sixth years should parallel that for second tithe in the relevant years of the sabbatical cycle (cf. Maim., Comm., ad loc.). C-G, which more closely relate to the concerns of the previous pericopae, deal with the following problem: We have designated terumah of the tithe from dema'i-produce or tithe for the poor from certainly untithed produce during the week. May we separate these tithes on the Sabbath, since the formal act of designation already has occurred? D rules that we may not do so. The actual act of separation is still taken into account, and may not be performed on the Sabbath (but cf. M. 7: 1-5 below, where the produce may be eaten and the tithe left behind on the Sabbath). Moreover, we certainly may not distribute these tithes to a priest on the Sabbath. But if a priest or a poor person is a regular guest at our Sabbath meal, we may feed him the produce in which the tithe has been designated, without physically separating it (Albeck). We of course must inform him of the status of the produce, so that

8

Cf. Epstein, Mabo', p. 445.

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the priest in particular will handle the ternmah properly, and so that the de facto act of distributing tithes will subsequently be accounted as such de jure. This procedure is permitted since we do not thereby depart from our regular Sabbath practice, and since no physical act of separation occurs. The tithe is properly distributed once we have informed the priest or poor person that he is receiving it. The act of designation begun before the Sabbath thus comes to its inevitable conclusion on the Sabbath without violating any prohibitions. 4:5-7 A. He who says to one who is not [deemed] trustworthy in the matter of tithing, "Purchase for me from someone who is trustworthy, or [w-] from someone who separates tithes," B. he [the agent] is not believed. C. [If the sender says, "Purchase for me] from so-and-so," D. behold, this one [the agent] is believed. E. [If] he [the agent] went to purchase from him, and [subsequently returned and] said to him [the sender], "I did not find him, but I purchased for you from someone else who is trustworthy," F. he is not believed. M. 4:5 (A-D = T. 5:3A-D, b. Bek. 36a-b; A-B: y. Git. 6:5) G. He who enters a city, and does not know anyone there, H. [and] he said, "Who here is trustworthy? Who here separates tithes?", I. [and] one said to him, "I do"J. he is not believed. K. [0 1, B, G', G3, V, Ca, Pa, N, P, 0 2 lack: (If) he said,] "So-and-so [0 1, B, G', G 3, Ca, N, 0 2, P, K, L (in margin) lack:] is trustworthy," L. behold, this one is believed. [G', Pa, L, M, S, K read I-K as follows: "and one said to him, 'I am not trustworthy, so-and-so (is trustworthy)."'] M. [If] he went to purchase from him, and said to him, "Who here sells old [produce, from the previous year, which may be eaten before the offering of the sheaf from the new year's crop; cf. Lev. 23:14 and M. Men. 10:5]?" N. [and] he [the one announced to be trustworthy] said to him, "The one who sent you to me," 0. even though they are like those who render service to each other [by mutual recommendations; kgwmlyn zh 't zh], P. behold, they are believed. M. 5:6 (cf. T. 5:4-5; b. Ket. 24a, b. A.Z. 6lb, b. Bek. 35a) A. [Regarding] ass-drivers who entered a city, B. [and] one [of them] said, "My [produce] is new [i.e., this year's produce, which is prohibited before the offering of the sheaf; cf. M

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above], and that of my companion is old [i.e., last year's produce, which may be eaten before the offering of the sheaf]; C. "my [produce] is not tithed [mtwqn], and that of my companion is tithed"D. they are not believed. F. R. Judah says, "They are believed." M. 4:7 (b. Ket. 24a, 56b) M. 4:5-6 constitute a formal unit to which 4:7 is appended for substantive reasons. Although the rulings of 4:5 and 4:6 between them do not articulate a single principle spelled out through recurring apodoses, but rather two different principles, one internal to each pericope, we nonetheless note the conjunction of a series of syntactic elements that occur in a fixed order: 1) the phrase my snw' I k'n n'mn, my snw' I k'n m'fr at A and G; 2) the apodosis 'ynw n'mn at B and J; 3) the fragment (m)'yf plwny (n'mn) at C and K; 4) the apodosis hry zh n'mn at D and L; and 5) the partial protasis hlk lyqh_ mmnw w'mr lw, at E and M, after which point each pericope has its own distinctive materials. The protasis fragments 1, 3, and 5 are used as syntactic building blocks. Their specific meaning in each pericope varies according to context. It is clear, however, that we deal here with an integrally formulated unit. We have a series of apocopated sentences with balanced apodoses, B vs. D and J vs. L, with the negative apodosis repeated at F and the positive apodosis repeated at P. In both cases, a pair of rulings (A-D, G-L) is completed by a third (E-F, M-P). The two secondary protases, C and K, depend for their meaning on the primary protases, A and G. The extended dialogue in the third rulings, E-F and M-P, considerably weakens their balance with the preceding pairs. M. 4: 7D and E continue the formulary apodoses of 4:5-6. 4:7 shares several verbal elements with 4:6, nkns l'yr in the primary protases at 4:6G and 4:7A, and yfn at 4:6N and 4:7B. The pericope otherwise is formally autonomous. The "he-who" construction of the primary protases appears at 4:5A, 4:6G, and 4:7A. A single principle is illustrated at A-F, and a second at G-L. An 'am ha' are,I agent who is given general instructions to purchase produce from someone who is deemed trustworthy with regard to tithing9 is not

9 Should we view the distinction between n'mn ['l hm'ftwt] and m'fr at A and G as substantive or merely rhetorical? GRA distinguishes between one who publicly has taken upon himself the obligation to tithe (n'mn) and one whose private practice it is to tithe (m'sr). Maimonides, Comm., holds that n'mn refers to one who both tithes and observes the purity rules (i.e., a h_aber), but this usage is not supported by M.-T. In

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believed, since to begin with we do not trust him, and we have no way of verifYing his statement (A-B). But if we instruct him to purchase the produce from a specific person, he is believed. Since he knows that we now can contact that person to verifY his statement, he will be careful to follow our instructions (C-D). E-F qualifY C-D in the light of A-B. If we give the agent specific instructions and he admits to not having carried them out, we have no further reason to believe him, since we have no way of verifying his statement, as at A-B. G-L again illustrate the position of Simeon b. Gamaliel at T. 4:30D-F, that is to say, we do not believe a man's testimony concerning himself with regard to a matter in which he is suspect, but we do accept his testimony concerning someone else. In the latter case, he gains no advantage by lying and therefore is believed. M-P qualify K-L. In the new situation of M-N, there is a possibility that the two vendors may be in collusion, each recommending the other's produce so that both may benefit. Nonetheless, we believe them (P =Judah, at 4:7E) and do not suspect that both may be interested parties. This is an extreme application of Simeon b. Gamaliel's ruling. M. 4:7 gives us an additional illustration of the problem at M. 4:6M-P. We suspect that the ass-drivers are in collusion, each recommending the other's produce. The anonymous opinion, D, is congruent to Rabbi's position at T. 4:30G-H. Judah reiterates the position of M. 4:6M-P. A. He who strys to one who is not [deemed] trustworthy in the matter if tithin£ "Purchase for me from someone who tithes, or [w-] from someone who is trustworthy," B. he is not believed. C. [.lf the sender says,] ''from so-and-so," D. behold, this one is believed. E. R. Yose says, "He is not believed, F. "lest he have found someone else closer than him." G. R. Yose concedes in the case of one who says, "Go, eat the loaf, and I will pay for it, H. "go, drink the quarter[-log of wine], and I will pay for it," I. that he is believed. T. 5:3 (p. 86, Is. 14-18) (A-D = M. 4:5A-D; G: cf. T. 5:14E-G)

fact, the opposite is the case. I am inclined to believe that the distinction between n'mn and m'sr here is simply rhetorical, since I see no way to discriminate between the two terms based on M.'s usage.

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T. 5:3A-D M. 4:5A-D. Yose disagrees with M.'s ruling, since the agent may still find a vendor whose shop is closer than that of the trustworthy person whom we have specified, and decide to save himself the additional effort. The case in which Y ose concurs (E-I) is a different one. We now deal with a man scrupulous about tithing who has 'am ha,ares. workers and is responsible for their sustenance (cf. T. 5: 14E-G, below). If he tells them to go eat and drink at the store of one who separates tithes, and that he subsequently will pay for the food, he may be sure that his instructions will be carried out. It is now in the 'am ha, arels interest to obey, since he benefits thereby. If he should eat somewhere else, his bill will not be paid. A. He who enters a ci!JI, and ternmah was in his hand, and he does not know anyone there, B. [V lacks:] and similarly, he who stands on the threshing-floor and ternmah was in his hand, and he does not know anyone there, C. "behold, this one seeks counsel from [nf,ll-] [both] h_aberim and 'amme ha'ares," the words of R. Simeon b. Gamaliel. D. Rabbi [Judah the Patriarch] says, "One seeks counsel regarding ternmah only from h_aberim." T. 5:4 (p. 86, ls. 18-20) (cf. y. 4:8, M. 4:6)

T. 5:4, by adding a further phrase to M. 4:6H's protasis, gives us an entirely different case, which again illustrates the conflicting principles

of Simeon b. Gamaliel and Rabbi. A man who has terumah to distribute to priests and is among strangers may inquire of both h_aberim and 'amme ha, ares. as to the identity of a h_aber priest. The 'am ha, ares. is not suspected of lying. Rabbi, of course, rejects this view. A. One who stood in a company of people, and said, "JiWw here is trustworthy? Jil!ho here tithes?" B. and one said to him, 'i following the status of the majority, [and therefore] they do not separate tithes from one item for the other, so they tithe Samaritan produce as dema>i [ed. princ., y. 5:9: "as certainly untithed produce following the status of the majority"], and they do not separate tithes from one item for the other." T. 5:22 (p. 92, ls. 93-96) (L = y. 5:9, b. Men. 3la: 0: cf. M. 5:9, y. 5:9)

18 MS. Vienna begins a lengthy lacuna at this point that continues through T. Ter. 2:6. Lieberman transcribes MS. Erfurt as his base text from here through the end of the tractate, and lists in the apparatus variants from ed. princ.

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P. R. Simeon b. Gamaliel says, "[ed. princ. lacks: Even] in a locale in which they declared ['fw] Samaritan produce to be dema'i, such as the vegetables of Kefar 'Otnai, 19 he separates tithes from it [i.e., from Samaritan produce] for fully untithed produce [tbl; Lieberman, p. 93: "from it for it," i.e., from Samaritan produce for other Samaritan produce], but not from fully untithed produce for it." Q Under what circumstances? R. When he purchases from the marketplace, S. But if he brings produce into his home [ltwk bytw; ed. princ.: btwk bytw; Lieberman, p. 93: mtwk bytw, "from his home"], T. or if his fellow sent produce to him, U. he treats it as dema'i. T. 5:23 (pp. 92-93, ls. 96-99) V. R. Simeon says, "[There are] three enactments [gzyrwt] with respect to dema'i. W. "Mfh S: our rabbis entered Samaritan towns along the road [from Judea to Galilee; cf. T. 1:11, above]. They [Samaritans] brought vegetables before them. X. "R. 'Aqiba hastened [lit.: ')umped"] to tithe them as certainly untithed produce. Y. "Said to him R. Gamaliel, 'How are you so bold [lit.: "how is your heart so full"] as to transgress the words of your colleagues, Z. "'or who gave you permission to tithe?' AA. "He ['Aqiba] said to him, 'And have I [thus] established a law in Israel [i.e., set a precedent]?' BB. "[ed. princ. lacks: He ('Aqiba) said to him,] 'I have [merely] tithed my own vegetables.' CC. "He [Gamaliel] said to him, 'Know that you have established a law in Israel by tithing your own vegetables.' DD. "And when R. Gamaliel came among them [Samaritans], he declared their grain and their pulse to be dema'i, and the rest of their produce to be certainly untithed. EE. "And when R. Simeon b. Gamaliel [ed. princ.: Gamaliel] came back among them, he saw that matters were in disarray, and they [ed. princ.: he] declared all of their produce to be certainly untithed." T. 5:24 (p. 93, ls. 100-1 06) (X-CC: cf. T. Ber. 4:15, T. Y.T. 2:12; DD: cf. T. 1:11; EE: cf. Tractate Kutim 1:6, ed. Rigger, p. 62)

19 A Galilean village, sixteen miles to the south of Sepphoris, on the road from Galilee to Samaria. Cf. Kramer, p. 99, n. 148, and Lisowsky, p. 108, n. 18 (T. Parah l 0:2), and the references cited there.

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T. 5:21-24 comprise a Toseftan essay on M. 5:9, dealing primarily with the ambiguous status of Samaritan produce. The unit begins, at T. 5:21A-e, with a citation of M. 5:9A-e, which is expanded at T. 5:21D-E, and attributed to Meir at F. T. 5:22/0 gives a reason for Eleazar/Eliezer's ruling at M. 5:9E. The rest of the Toseftan materials are formulated autonomously of, but correlate to, those of M. A-K thus follow the formulary pattern established at M., while the correlative materials are more loosely formulated. L-N is a brief ma'aseh attributed to Simeon of Sezur. A more lengthy and complex ma'aseh, V-ee, is introduced by Simeon's lemma at U. In between the two ma'airyyot are two lemmae dealing with the status of Samaritan produce, attributed respectively to Eliezer and Simeon b. Gamaliel. The former (0) displays internal balance. The latter (P) is glossed at Q-T. M. 5:9's anonymous ruling is attributed to Meir at T. 5:21 A-F. In place of M. 5:9D's formally unbalanced stich, T. 5:21D gives us the anticipated stich that balances e, while E concludes the whole construction. The contrasting opinion attributed to Judah, Y ose, and Simeon, 20 which perfectly balances that of Meir, further proves that M. 5:9A-e and D-E are autonomous rulings. Meir holds that gentile, Samaritan, and (untithed) Israelite produce are fully comparable and interchangeable. Both gentile and Samaritan produce are liable to tithing, and neither gentiles nor Samaritans tithe produce that they sell. Judah, Yose, and Simeon hold, to the contrary, that both gentile and Samaritan produce are exempt from tithing obligations, and therefore we must not tithe Israelite for gentile or Samaritan produce, and vice versa. According to this view, Samaritans are deemed to be like gentiles, not like Israelites. 21 L-N is a brief ma'aieh attributed to Simeon of Sezur that most likely is redacted here to support the position of Meir. L establishes the setting, i.e., the legal problem which, at M, is brought to Tarfon. N then gives Tarfon's ruling. The case is one with which we already are familiar from T. 5:12 and M. 5:8, and Tarfon's decision accords with the anonymous ruling there. One may salvage fully tithed produce into which fully untithed produce has fallen by separating for it tithes from other, fully untithed produce in proportion to the amount of fully tithed

20 b. Men. 66b links Judah with Meir, but y. Dem. 5:9 and Git. 4:9 agree with T. (while omitting Yose). A Palestinian attestation to the reading ofT., itself a Palestinian document, generally is to be preferred to a Babylonian one. 21 Cf. Lieberman, "Liketobet hahalakit me'emeq beyt Je'an" Tarbi:::. 45 (1975-76), p. 56.

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produce in the mixture. Tarfon counsels Simeon to purchase such fully untithed produce in the market. As the text stands in MS. Erfurt and ed. princ., it is not clear from whom the produce is to be purchased. If an Israelite vendor is meant, then the ma'oJeh simply illustrates the rule of M. 5:8, that one may sell ibl in an emergency situation, as is the case here. The ma'aseh would then be poorly redacted in the present context, supporting neither the position of Meir nor that of Judah, Yose, and Simeon. For this reason we should follow the reading of y. 5:9, "Go out and purchase from a gentile," which supports Meir's position that gentile and Israelite produce are interchangeable. 22 At 0, a reason is given for Eliezer's ruling, M. 5:9E. Eliezer holds that some Samaritans tithe produce which they sell. Samaritan produce purchased in the marketplace is thereby deemed to be dema,i, and each item must be tithed separately. Simeon b. Gamaliel's ruling, P, is problematic. He refers to those kinds of produce which arc sold in Samaritan villages (such as Kefar 'Otnai ) along the road from Judea to Samaria, and deemed to be dema,i. According to Judah, T. l:llD-G, we hold these items to be dema,i because they are assumed to derive from Judean territory and were grown by Israelites who may have tithed them. We must follow Lieberman's emendation at P because the ruling that permits (or forbids) us to separate tithes from one item for another requires reciprocity. That is to say, we must be able (or forbidden) to separate tithes from either of the two kinds of items for the other, which is not the case at P if we follow the reading of E and ed. princ. Simeon b. Gamaliel rules that, even though the produce is deemed to be dema,i, one may tithe it for other, similar produce. But one may not separate from it tithes for certainly untithed Israelite produce (1bl), or vice versa, since Israelite produce and Samaritan produce are deemed heterogeneous with respect to tithing obligations. Q-U's gloss complicates this picture. According to Q-U, Simeon b. Gamaliel's rule applies only in the marketplace. But produce that is found in the Samaritan's home or that has been sent to him by a friend must in fact be treated as dema,i, that is, one does not separate tithes from one item for another, since Samaritans are assumed to tithe that which they eat and, by extension, that which they have brought home or sent to another to eat. Why then may we separate tithes from Samaritan produce for other

22

Cf. Gereboff, Tarfon, pp. 16-21.

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Samaritan produce in the market, even if it is deemed to be dema'z? I cannot make sense out of this ruling unless we allow that the term dema'i is used in two senses here. 23 In the first sense, at P, we refer to produce from which terumah certainly has been separated but tithes have not been separated. This would explain why one can separate tithes from one item for another in the marketplace, but not from Samaritan "dema'z"' produce for certainly untithed Israelite produce, and vice versa. In the second sense, at Q-S, we deal simply with doubtfully tithed produce, and this is why we cannot tithe one item for another. P's ruling and its gloss at Q-U ultimately remain obscure. The final subunit (V-EE), a complex ma'aJeh preceded by an attributed lemma, deals solely with the status of Samaritan produce and does not mention the problem of separating tithes from one item of produce for another. The ma'aJeh indicates that the status of Samaritan produce with respect to tithing is subject to much confusion. Simeon's lemma, stating that there were three enactments with respect to dema'i and Samaritan produce, leads us to expect in the sequel three laws articulated in apodictic form. Instead we have V-EE's expanded ma'aJeh. The ma'aJeh nonetheless does narrate three different rulings on the status of Samaritan produce. The first enactment is illustrated at W-ee, the second at DD, and the third at EE. Gamaliel is the central figure in each case (following the reading of ed. princ. at EE). The primary motif of W-ee, an autonomous narrative, in fact is the conflict between a Sage, 'Aqiba, and the Patriarch Gamaliel. The same motif, spelled out in a similar formulary narrative structure, is also found at T. Ber. 4:15 and T. Y.T. 2:12. In our ma'aJeh, however, Gamaliel is made to uphold the authority of the majority of the Sages against an individual, rather than the authority of the Patriarch. Although Gamaliel bests 'Aqiba in the narrative, W-ee, the expansion at DD-EE has the Patriarch gradually revert to the 'Aqiban position. This is the force of the ma'aseh as an autonomous unit. 24 In the redactional context set by Simeon's opening lemma, however, our attention is focused on the shifting rulings with regard to the status of produce sold in Samaritan towns on the road from Judea to Galilee. W-ee, in narrative form, give us a debate between 'Aqiba

Cf. Lieberman, loc. cit., pp. 60-61. C£ the more detailed analyses of Primus, 'Aqiba, pp. 25-28, and Kanter, Gamaliel, pp. 29-31, 100. 23

24

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and Sages/ Gamaliel. The latter hold that such produce is deemed to be dema'i, since Samaritans are like Israelites and may tithe the produce which they sell. 'Aqiba assumes that Samaritans do not tithe the produce which they sell. Gamaliel's ruling at DD is identical with that ascribed by Judah to Sages at T. 1: llD. Judah's reasoning is that most of the grain and pulse sold in Samaritan villages along the road is assumed to be Israelite produce from Judea, while all other items are assumed to have been grown by the Samaritans themselves. Gamaliel's final ruling at EE accords with the 'Aqiban position at W-ee, as we have noted. The produce is assumed to derive from Samaritans, and not to have been tithed by them. In sum, Tosefta's long essay on Samaritan produce indicates the lack of any firm consensus on the status of such produce, particularly among Yavneans, but also among Ushans, to whom also are attributed shifting opinions on this subject. 25 5:10-11

A. A perforated potB. behold, this is like the ground. C. [If one] separated terumah from [produce grown in] the ground for [produce grown in] a perforated pot, D. or from [produce grown in] a perforated pot for [produce grown in] the ground, E. his [act of separating] terumah is [deemed a valid separation of] terumah. F. [If he separated terumah] from [produce grown in a pot) that is not perforated for [produce grown in one] that is perforated, G. it is [deemed to be] terumah, but [w-] he should again separate terumah [from the produce grown in the perforated pot]. H. [If he separated terumah] from [produce grown in a pot] that is perforated for [produce grown in one] that is not perforated, I. it is [deemed to be] terumah, but [w-] it should not be eaten [by a priest] until he shall have separated for it [i.e., for the newly designated terumah] terumah and tithes [b. Yeb. 89b, b. Qid. 46b add: from other produce]. M. 5:10 (A = Midrash Tanna'im 14:22; F-I = b. Yeb. 89a-b; F-G = b. Men. 70a; H-I = b. Qid. 46b) ]. [If] one separated terumah from dema,i-produce for [other] dema,i-produce, K. [or] from dema,i-produce for certainly untithed produce,

25 There is also a recognition that Samaritans in different locations may follow different practices with respect to tithing. Cf. Lieberman, loc. cit., pp. 56-57.

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L. It IS [deemed to be] terumah, but he again should separate terumah [from the other dema'i produce, or from the certainly untithed produce]. M. [If he separated terumah] from certainly untithed produce for dema'iproduce, N. it is [deemed to be] terumah, but [w-] it may not be eaten [by a priest] until he shall have separated for it [i.e., for the newly-designated terumah] terumah and tithes. M. 5:11 (M-N = y. Hal. 4:6; cf. T. Dem. 4:5)

M. 5: 10-11 are formally autonomous of the foregoing pericopae, but thematically arc closely related to them. The unit is a well-constructed formal exercise characterized by balanced, chiastically related protases and recurring, contrastive apodoses. A-B, a declarative sentence that introduces the unit, displays a duplicated subject. C-E is a declarative sentence with a double protasis, C-D, the two elements of which balance each other. F-G and H-I are a pair of declarative sentences patterned on C-E. F's protasis is reversed at H. The two apodoses, G and I, both begin tnvmh w . .. J-L and M-N are a further pair of declarative sentences. J-K is a double protasis, the second element of which is balanced at M. The apodoses L and N repeat G and I, respectively. The final pericopae of our chapter carry forward the theme of M. 5:3-9, and take up the specific case of separating terumah from produce that is liable to this obligation for produce that is exempt, and vice versa. M. Ter. 1:5 forbids both procedures, since, on the one hand, terumah can be separated only once from any item that is liable to the obligation (cf. T. 4:5, above), and, on the other, there is nothing that can he designated as terumah in an item that, to begin with, is exempt. Our pericope asks what happens when we violate this prohibition. Specifically, what is the status of that portion of produce which we have improperly designated as terumah for another item? The problem is illustrated in two parallel cases, at A-I and J-N. At A-I we deal with produce grown in perforated and unperforated pots. A-B and C-D simply are informative materials that prepare us for the cases at F-G and H-I. Produce grown in a pot with a perforation through which a single root can extend into the ground (cf. M. Uqs. 2:1 0) is deemed to grow in the ground itself (A-B), and therefore is liable to the obligation of terumah, like all edible produce grown in the ground (cf. M. Ma. 1:1). For this reason terumah may validly be separated from it for produce that actually has grown in the ground, and vice versa. The two kinds of produce are homogeneous with respect

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to tithing obligations (C~D). Produce grown in an unperforated pot, on the other hand, cannot root itself in the ground. Since it is not deemed to grow in the ground, such produce is not liable to the obligation of temmah and tithes. F~G inform us that if we separate temmah from produce grown in an unperforated pot (which is exempt) for produce that is grown in a perforated pot (which is liable), we have not exempted the latter produce from the obligation of temmah. The temmah must still be separated for it, from the item itself or from other produce that is untithed and liable to tithing. But we nonetheless must treat as "temmah" that portion of produce which was separated from the unperforated pot, and give it to a priest, lest someone otherwise think that we are misusing valid temmah. The priest may eat the portion without further ado, since it was, and remains, exempt from tithing obligations. H~I give us the reverse case. We now separate temmah from produce grown in the perforated pot (which is liable) for produce grown in the unperforated pot (which is exempt). Here we obviously do not have to separate temmah a second time for the latter produce, since it was exempt from the outset. But we must again treat as "temmah" that portion of the produce which we have separated, this time from the perforated pot. We give it to the priest for the same reason as above. But the priest now receives produce which was, and remains, liable to tithing. He therefore may not eat it before he has separated for it temmah and tithes, either from the portion itself or from other, fully untithed produce. J~N repeat the exercise of F~I, this time in the case of dema'i and fully untithed produce. The logic is the same: since we assume that regular temmah already has been removed from demai-produce (which is thus deemed analogous to produce grown in an unperforated pot), J's reference to separating temmah from dema'i-produce for other dema'iproduce must refer to temmah of the tithe. 26 A. [Produce grown in] a perforated pot [Lieberman, p. 93, GRA, MB, HD, HY, y. Kil. 7:6, y. Hal. 2:2: an unperforated pot] is liable to tithes, B. but its terumah does not contaminate tithed produce [)nh mdmct] and one is not liable to the added fifth on its account. T. 5:25 (p. 93, Is. 107-8) (y. Kil. 7:6, y. Hal. 2:2; c( M. 5:10)

26

See Sarason, TIJ, p. 189, and p. 368, n. 98.

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T. 5:25 correlates with the ruling of M. 5:10, but is not formulated in response to that pericope. If we follow the reading of MS. Erfurt and ed. princ., T. rejects the ruling of M. 5:10A-B that produce grown in a perforated pot is similar in every respect to produce grown in the ground. GRA, MB, HD, HY, and Lieberman prefer the reading of y. Kil. 7:6 and y. Hal. 2:2, according to which T. rules about an unperforated, not a perforated, pot. In this case T. refines the ruling of M. 5: I 0. Produce grown in an unperforated pot falls into an intermediate category. It is indeed liable to the separation of terumah and tithes (vs. M. 5: 10), but its terumah is not deemed true terumah in that it does not contaminate in a mixture with fully tithed produce, and payment of the added fifth is not required if a non-priest inadvertently eats it (cf. M. Ter. 3:9, with respect to the status of terumah separated by a gentile). M. 5:10's distinction between terumah separated from produce grown in a perforated pot and from produce grown in an unperforated pot is thus maintained at a different level.

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MISHNAH-TOSEFTA DEMAI CHAPTER SIX

M. Chapter Six deals with tithing-related problems that arise from the shared ownership of produce or property. At issue is the extent to which one person has ownership rights in the other person's portion, and thus is responsible for tithing it if he is scrupulous about tithing and his fellow is not. A second question is whether a priest or Levite who shares a field with an Israelite may claim as his own the Israelite's portion of temmah or first tithe. The chapter, both formally and substantively, is composed of three units, M. 6:1-2, 3-5, and 7-10, each of which illustrates a separate problem. We also have three singletons, M. 6:6, 6:11, and 6:12. The former two pericopae are anomalous, relating neither formally nor substantively to the surrounding materials. M. 6:12, though formally distinct, is thematically linked with the chapter's third unit, M. 6:7-10. We shall characterize each unit in turn, and then discuss the remaining pericopae. The problem of the first unit (M. 6: 1-2) is whether a man who works someone else's field and shares the produce with him must tithe that portion of produce which he gives to the owner. If the landowner is deemed to own the produce that he receives, the worker need not tithe it. M. contrasts two kinds of landlord-worker relationships, sharecropping and tenant farming. In both cases the landlord owns his portion of the produce, and the worker is not responsible for tithing it. But the tenant farmer, unlike the sharecropper, pays the landowner a fixed rental in kind, regardless of the field's yield, and is deemed to own the field during the tenure of the lease. If he pays the rental in produce other than that which was specified by the owner, he must tithe it, for he is now deemed to pay with his own produce (Judah). M. 6: lB-2 also distinguish between Israelite and gentile landowners. According to the theory of 6:2, gentiles do not fully own property in the Land of Israel. A tenant farmer who leases from a gentile therefore must always tithe the rental as if it were his own produce. The second unit (M. 6:3-5) deals with the disposition of temmah and first tithe between landlord and sharecropper when one is a priest or Levite and the other is an Israelite. May the priest or Levite claim the Israelite's portion of the appropriate due as his own, or does the Israelite

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give it to whichever priest or Levite he may wish? That will depend on who owns the field, for the landowner has a prior claim to dispose of the priestly gifts as he chooses. An Israelite landowner therefore retains the rights of disposition to his portion of the tithe. He need not give it to his sharecropper. (Eliezer, M. 6:3C-D, disagrees.) A priest or Levite, on the other hand, may exercise his prior right of ownership to appropriate even the sharecropper's portion of terumah or first tithe, when the sharecropper is an Israelite (6:4). But if the tithe comes from a manufactured item, like olive oil, and not directly from the field's produce (i.e., from the olives), the priestly landowner can no longer exercise his ownership rights to the Israelite sharecropper's portion of tithes, since the tithes no longer are deemed to come from produce of the field (6:5; Judah disagrees). The third unit (6:7-10) has to do with the division of produce or property jointly owned by two men of different status. Do both have an equal share in every part of the whole, or may we apply the principle of retrospective designation, and claim that the particular portion that each one takes, in whatever part of the property, was his from the outset? At issue is whether someone scrupulous about tithing who shares a field with another who is not trustworthy must separate tithes for the latter's portion of the produce. He must do so if he is deemed to have an equal share in his fellow's portion, for otherwise he violates the prohibition against ceding untithed produce or dema'i to an 'am ha' ares_. M. rules that the principle of retrospective designation applies only when the two divide homogeneous produce between them. Our unit illustrates this theory of the problem in a series of different cases. Each of M's three units formally is well articulated, with its own distinctive formulary patterns. The first unit, composed of balanced declarative sentences, displays formulaic elements in the protasis-pattern, hmqbl Sdh m ... I hflwkr sdh m ... , and in the balanced apodoses, m'sr wnwtn lw/ twrm wnwtn lw. Declarative and apocopated sentences alternate in the second unit. The protasis pattern is that of inversion: khn wlwy fqblw Sdh mysr'llysr'l fqbl sdh mkhn wlwy. We also have a recurring pair of contrasting apodoses, h.wlqyn btrwmk--h.wlqyn bh.wlyn vs. hm'srwt lb'lym. The third unit is composed primarily of apocopated sentences. Within the unit, 6:8-l 0 are closely linked through the recurring formula, 11 'th-X (bmqwm plwny) w'ny Y. As for the three remaining pericopae, 6:6 is a well-formulated Houses' dispute totally irrelevant to the issues of our chapter, but of

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great interest in its own right. The Hillelites hold that we may sell olives to people who do not observe the rules of cleanness, a position that contradicts a fundamental ruling of our tractate (cf. M. 2:2-3, above). We shall focus attention on this problem below, ad loc. 6:11 deals with the credibility of vendors, illustrating the principle that "the mouth that forbade is the mouth that permitted." It is relevant to M. 1:3C-D (cf. T. 1:4ff.) and Chapter Four, but not to the present chapter. Finally, 6:12 thematically can be linked with our chapter's third unit, 6:7-10, since it again exemplifies the principle of retrospective designation. Attributions to Judah figure prominently in our chapter. Both of the glosses in the first unit to which names are attached are assigned to him (6: 1, 2). He also is assigned a dissenting opinion in the second unit (6:5). Two Yavnean names as well occur in the second unit, Eliezer (6:3) and Ishmael (6:4).The third unit lacks attributed lemmae. We already have referred to the Houses' dispute at 6:6, which is unrelated to our chapter. Tosefta to M. Chapter Six is comprised exclusively of glosses of M. and correlative materials that, for the most part, follow M.'s formulary patterns. Each of M.'s three units receives rather extensive treatment. Among the three singletons, only M. 6: 12 is (briefly) dealt with in T. (6: 11, of course, has already been taken up at T. 1:4ff.) Relatively few of T.'s materials are attributed. Here, too, Judah's name occurs most frequently, at T. 6:5 (vs. Meir, Sages), 7:10, and 7:15 (with Simeon and Y ose, vs. Meir). Meir and Simeon each occur twice, the former at 6:5 (vs. Judah) and 7: 15 (vs. Judah, Yose, Simeon); the latter at 6:2 and 7:15 (with Yose andJudah, vs. Meir). Yose appears at 7:15. Simeon b. Gamaliel appears at 6:1. All attributions are Ushan. The attestational chain at 6:7, Yose b. HamMdullam I Nathan his brother I Eleazar tlisma' (a Yavnean master), is familiar to us from T. 3:1. 6:1-2 A. He who sharecrops [mqb~ a field for an Israelite, for a gentile, or for a Samaritan, [receiving for his work a fixed percentage of the total yield,] divides [the produce] in their [the owner's] presence. B. He who leases [l!wkr] a field from an Israelite, [paying the owner a fixed amount of produce, regardless of the total yield,] separates [only] terumah [from the whole] and [then] gives to him [the owner, his rental from the tithed produce]. C. Said R. Judah, "When? [Under what circumstances?] D. "In the case in which he [the tenant farmer] gave him [the owner]

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[produce] of the same field [from which he had contracted to give him] and of the same kind [that he had contracted to give him). E. "But if he gave him [produce] of a different field or of a different kind, he separates tithes and [then] gives to him [his rental from the tithed produce)." M. 6:1 F. He who leases [.kwkr] a field from a gentile separates [terumah and) tithes and [then) gives to him [his rental from the tithed produce). G. R Judah says, "Also ['p] he who sharecrops [mqb~ his fathers' field for a gentile separates tithes and [then) gives to him [his portion from the tithed produce)." M. 6:2 (G = b. B.M. lOla) M. 6:1-2 is composed of two units, A and B-G. A's ruling is phrased as a declarative sentence. B and F are a pair of balanced declarative sentences, each of which is glossed with lemmae attributed to Judah. The formulary apodosis m'fr wnwtn lw occurs at E, F, and G. It is balanced by twrm wnwtn lw at B. A's protasis, hmqbl fdh m ... , also contrasts with that of B and F, hh.wkr fdh m .... The underlying principle of our unit, and of the chapter as a whole, is familiar to us from M. Chapter Three. A person scrupulous about tithing, by his own actions, must not cause someone else to eat untithed produce. He therefore tithes all produce of his own that he gives to another. The problem of M. 6: 1-2 is whether or not such a person who works someone else's field must tithe that part of the produce which he gives to the owner. We distinguish between two kinds of land tenure, sharecropping (mqbll qblh b'ryswt) and leasing (h.wkr/ h.fryrh). The sharecropper works the field in retum for a certain percentage of the total yield. The field itself remains in the possession of the landowner, since he shares the attendant risks. For this reason the sharecropper does not tithe that part of the produce which he gives to the landowner (A). He rather divides up the total yield at the threshing-floor in the landowner's presence, which insures that each party receives his proper share. A draws no distinction in this regard between Israelite, gentile, and Samaritan landowners (= Simeon b. Gamaliel, T. 6:1). The tenant farmer, on the other hand, pays the landowner a fixed quantity of produce, regardless of the total yield. Since the tenant now bears all the risks, he is deemed to own the field during the tenure of the lease. Does he then have to tithe the produce that he pays to the owner as rental? B rules that he does not. The rental from the outset belongs to the owner. But the tenant farmer must separate from it terumah. The reason is as follows: The owner in this case need not

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receive his produce on the threshing-floor, since the amount due to him is fixed and certain. The tenant farmer thus brings it to the owner. But terumah customarily is separated from all produce at the threshingfloor. For this reason the tenant farmer separates terumah from the owner's portion together with the rest of the produce, and then delivers that portion to him. Judah, at C-E, does not disagree. He merely holds that the owner has contracted to receive a specific kind of produce from a specific field, that which he has leased to the tenant. If the tenant then pays the fixed rental with produce of a different kind or from a different field, he must separate all tithes from it, and not simply terumah, since he now pays from his own produce. B-F distinguish between Israelite and gentile landowners, and thus hold to a theory different from that of A If the owner is a gentile, F rules, the tenant must separate all tithes from the rental. Why? Because B-F do not recognize the right of a gentile to own property in the Land of Israel. When the gentile leases a field to an Israelite, all of the produce is deemed to belong to the Israelite, including that portion which the gentile receives back in rent. Judah, at G, espouses a similar theory in a different case. He holds that Israelite landholdings can never be alienated by a gentile. The field which once belonged to the family of the Israelite sharecropper is still deemed to belong to him, and for this reason he must tithe the gentile owner's share of the total yield. T. 6: 1-7 comprise a single thematic unit that deals at length with the cases of M. 6:1-2 (T. 6: l-5W), and then takes up related issues (T. 6:5X-6:7). The major formal articulations in the first part are patterned on, and expand upon, those of M.: (1) T. 6:1A-He who sharecrops a field for a gentile (M. 6: 1A); (2) T. 6:2D-He who divides (leases.~ a field with/from a gentile (M. 6:2F?); (3) T. 6:~-He who leases a field from a gentile (M. 6:2F); (4) T. 6:3L-He who leases a field from a Samaritan; (5) T. 6:5R-He who sharecrops (read, "leases") a field from an Israelite (M. 6: lB). Within this section, T. 6:4N-Q are secondary. The protases in the second section expand still further upon the patterns of M.'s, while the formulary apodosis m'sr wnwtn lw (here, vs. nwtn lw kmwt snw'), persists. We now turn to a detailed analysis of the unit. A. He who sharecrops [mqb~ a field for a gentile separates [terumah and] tithes and [then] gives to him [his percentage of the yield from the tithed produce]. B. Said R. Simeon b. Gamaliel, "What if the gentile does not want his produce to be tithed?

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C. "Rather he divides [the produce] and gives it [the owner's portion] to him in his presence." T. 6:1 (p. 94, ls. 1~2) (cf. M. 6:1, y. 6:1) D. He who divides [h.wlq; GRA, MB,Jastrow read h.wkr, "he who leases"] [the produce of] a field with [mn] a gentile separates tithes [from the whole] and [then] gives to him [his portion from the tithed produce]. E. R. Simeon says, "He separates [only] terumah and gives to him [his portion, from which terumah, but not tithe, has been separated]. F. "Therefore if the gentile [thereafter] converted, or sold [the field] to an Israelite, he [the converted gentile or the Israelite purchaser] separates tithes [Lieberman omits: and gives to him]." G. If he rented [f!cr; the rental is paid in coins rather than in kind] a field from him [from the gentile], he separates [terumah and] tithes and gives to him [his rental from the tithed produce]. H. What is the difference between one who rents [swkr] and one who leases [h.wkr] ? I. One who rents [pays the owner] in coin; one who leases [pays the owner] in kind. J. He who leases [h.wkr] a field from a gentile separates [terumah and] tithes and gives to him [his rental from the tithed produce]. K. Therefore if the Israelite [tenant subsequently] repurchased it [the produce] from him, or if he [the gentile] sold it to [ed. princ.: another] Israelite, he [the purchaser] now treats it as dema'i. T. 6: 2 (p. 94, ls. 2~ 7) (D~E = cf. y. 6:2 ; F = y. 6:2; I = y. 6:1; J = M. 6:2F) L. He who leases [h.wkr] a field from a Samaritan separates [terumah and] tithes and gives to him [his rental from the tithed produce]. M. (And) one who pays taxes [in kind] to the [Roman] treasury, [and] one who pays taxes to the centurion separates [terumah and] tithes and gives to him [the taxes in kind from tithed produce]. T. 6:3 (p. 94, ls. 7~8) N. An Israelite should not say to a gentile, or to a Samaritan, or to one who is not trustworthy in the matter of tithing, "Take these two hundred zuz and pay for me my taxes [in kind] to the [Roman] treasury." 0. Rather he says to him, "Release me from [my obligation to] the treasury." P. Similarly a man should not say to his fellow, "Take these two hundred zuz and do government service ['wmnwt; "public service," "public office"] for me." Q Rather he says to him, "Release me from [my obligation to do] government service." T. 6:4 (p. 94, ls. 8~ 11) (y. 6:12, b. A.Z. 71a; P: cf. M. B.B. 9:4, b. B.B. 144b) R. He who sharecrops [mqbl; Sens, MB, HD, Lieberman: h.wkr, "he who leases"] a field from an Israelite separates [only] terumah and gives

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S.

T. U. V.

W.

X.

Y.

Z.

AA.

BB. CC.

to him [his portion, from which terumah, but not tithe, has been separated]. R. Meir says, "He separates [terumah and] tithes and gives to him [his portion from the tithed produce]." R. Judah sqys, "!f he gave him [produce] if the same field and if the same kind [as was contracted], he separates [only] terumah and gives to him [his portion, from which only terumah has been separated]. "But [w-] if he gave him [produce] if a different .field or if a different kind, he separates tithes and gives to him [his produce ftom the tithed produce]." And Sages say, "If he gave him [produce] of the same field, whether of a different kind or the same kind, he separates [only] terumah and gives to him [his portion, from which only terumah has been separated], but [w-] if he gave him [produce] of a different field, whether of the same kind or a different kind, he separates tithes [so ed. princ.; E: "he separates terumah"] and gives to him [his portion from the tithed produce]." If he [the worker] received from him [the landowner] seed [as a loan] to be repaid [with produce of the same kind] from the threshing-floor, he separates tithes and gives to him [i.e., repays the loan with tithed produce]. In a place where they [customarily] divide [the produce] on the threshing-floor, [assuming the worker is a sharecropper,] he sets apart in his [the landowner's] presence an equivalent amount [i.e., an amount equivalent to the value of the seed in addition to the landowner's fixed share of produce]. If he received from the owner coins [as a loan] to be repaid [with produce] from the threshing-floor, all concur [GRA, MB, Lieberman: "in every case", i.e., whether or not they divide the produce on the threshing-floor] that he separates tithes and gives to him [i.e., repays the loan with tithed produce]. T. 6:5 (pp. 94-95, Is. ll-18) (R-W: y. 6:1, y. B.M. 9:7: T-U = M. 6:1C-E) An Israelite [sharecropper] who received from his fellow (I) his field to harvest when [the crop] was in the status of sheaves [ksnw' sofyn, so E; ed. princ. lacks ksnw'; emend to follow the pattern below: bsofyn, "in return for (a rental payment in) sheaves"], [or] (2) his vineyard to cut in return for [a rental payment in] grapes, [or] (3) his olive grove to harvest in return for [a rental payment in] olives gives [the owner's portion] to him as it is [i.e., without first separating tithes from it]. [If he received from his fellow] (I) his field to harvest in return for [payment in] wheat, [or] (2) his vineyard to cut in return for [payment in] wine, [or] (3) his olive grove to harvest in return for [payment in] olive oil,

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DD. [he] separates [ternmah and] tithes and gives to him [his portion in tithed produce]. T. 6:6 (p. 95, Is. 19-20) (y. 6:1) EE. R. Yose b. HamMdullam testified in the name of Nathan his brother who said in the name of R. Eleazar Hisma' that he who sharecrops his fathers' field for a gentile, to harvest in return for [payment in] olives, gives [the gentile's portion] to him as it is [without separating tithes from it]. T. 6:7 (p. 95, Is. 20-22) (cf. M. 6:2G)

T. 6: lA-C deal with the case of M. 6: lA. Unlike M., the anonymous ruling at T. 6: lA implicitly distinguishes between Israelite and gentile landowners. It holds that gentile ownership of property in the Land of Israel does not render produce grown on that property exempt from tithing obligations. The sharecropper therefore must tithe the owner's portion of the yield, since the gentile of course will not tithe it. Simeon b. Gamaliel, on the other hand, recognizes the gentile's right as owner to dispose of the produce as he wishes. The sharecropper simply divides the produce in the owner's presence. M. 6: 1 A, which draws no distinction between Israelite, gentile, and Samaritan landowners, thus follows the opinion of Simeon b. Gamaliel. The interpretation of D-E is problematic. The term h.wlq does not refer to a landowner-tenant relationship, but rather to the shared ownership of a field by two equal partners. D's ruling assumes that, before the produce is divided between the two partners, there can be no retrospective designation of the exact property holdings of each partner in the field. Since, before the division, they jointly own the whole, the Israelite must tithe the gentile's portion as well as his own (cf. M. 6:7-10, below). Alternatively, D does not recognize gentile ownership rights to render produce exempt from tithing. Simeon (E), on the other hand, recognizes gentile ownership rights, and holds that retrospective designation is possible. It is not clear to me why Simeon should insist that the Israelite separate terumah from the gentile's portion, since the portions presumably will be divided on the threshing-floor. GRA, MB, HY, and Jastrow, on the other hand, read h.wkr for h.wlq at D. 1 If we follow this reading, our exegetical difficulties are eliminated.

1

The problem with this emendation is that D's lemma, as emended, does in fact

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D would then repeat the ruling of M. 6:2F, while E would correspond to the theories of M. 6: 1A and B. Simeon would draw no distinction between gentile and Israelite landowners in the case of tenant farming, just as Simeon b. Gamaliel (at T. 6:1 C) draws no such distinction in the case of sharecropping. The only relevant variable would then be the place of payment, i.e., at the threshing-floor or at the owner's home. F naturally follows from E. At G an Israelite rents a field from a gentile, the rental to be paid in coins. If he now should repay in kind, the produce must be fully tithed, since he is discharging a debt rather than returning the owner's produce to him. H-1 define the terms fwkr and h_wkr. J = M. 6:2F. At K, the produce that the Israelite purchases is treated as dema'i, since the gentile may have mixed with the tithed produce, or exchanged for it, other, fully untithed produce of his own (cf. M. 3:41). L draws no distinction between the gentile and the Samaritan, assuming that neither can alienate property in the Land of Israel. An Israelite tenant farmer therefore must separate tithes from the owner's rental in both cases. At M taxes in kind must be paid to the Roman authorities with tithed produce, since one is discharging a debt. N-0+ P-Q are secondary to the present context. N-0 indicate how one can avoid the economic burden of having to pay taxes with tithed produce (cf. T. 1:13L). Someone scrupulous about tithing may give money to a gentile, Samaritan, or Israelite who does not tithe and have them discharge his obligation. But he may not directly tell them to pay the tax in kind, lest it appear that he concurs in their payment with untithed produce (or with libation wine as well in the case of the gentile, cf. T. 5: 15), and that they act as his agents. Instead he gives them a more equivocal directive and they discharge the obligation however they sec fit, be that with money, produce, etc. The owner no longer is responsible for their action (cf. T. 1:21, 2:24, 5:14-15). The same principle is illustrated at P-Q, although the details of the case are more difficult to reconstruct. If the term 'wmnwt ("government service") 2 refers

occur below, at J. Repeated lemmae of course are not unknown in T., but they are not common occurrences either. 2 Cf. M. B.B. 9:4; Danby: "public office"; Lieberman, TK, I, p. 267, I. 10; Kramer, p. 107, n. 19.

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to the growing of produce for the Roman authorities, then our case exactly parallels that of N-0. If, on the other hand, it refers to the assumption of a government post, such as that of tax farmer (so b. B.B. 144b), then the problem is that the man must handle both unclean and untithed produce (cf. T. 3:4, above). He may not pay someone else to assume this office in his place, for he thereby causes the other person, who acts as his agent, to transgress. Bid he may direct the other to see to it that the obligation is discharged, however that may transpire (through a bribe, etc.). At R we must read hwkr for mqbl, with Sens, MB, HD, HY, and Lieberman, since the sequel at T -W presupposes a contract to deliver specific produce rather than a percentage of the total yield. Following this reading, R = M. 6: lB. Meir holds that all of the produce belongs to the tenant farmer, who discharges a debt in paying the fixed rental to the landowner. T-U = M. 6:1C-E. The formal patterning ofR-U(1) separates terumah; (2) Meir: separates tithes; (;3) Judah: in situation X separates terumah, in situation separates tithe~casts Judah's position as mediating between the anonymous opinion and that of Meir, but such in fact is not the case. Judah's position rather responds to the anonymous opinion at R, as M. 6:1B-E make clear. Sages, at V-W, respond to Judah. In their view, the landowner contracts to receive produce only from a specific field, the one he leases to the tenant, without regard to the kind of produce. X-Z begin a series of correlative rulings that supplement the cases of M. 6:1-2. The formulary apodosis mcsr wnwtn lw recurs at X and Z, and is balanced by hwlq lw bpnyw at Y. At X the landowner loans seed to the worker with the stipulation that it be repaid in produce of the same kind from the harvest of the field. Since the worker thereby is discharging a debt, he must repay with tithed produce. Y rules that in a place where it is customary for the owner to receive back the value of his seed as part of the produce that he divides with his sharecropper on the threshing-floor, the worker may pay back the debt in untithed produce. He simply adds to the owner's portion an amount of produce equivalent to the amount of the seed (cf. Lieberman, TK, I, p. 268, ls. 15-16). But if the loan was in coin, it must always be repaid with tithed produce, i.e., even on the threshing-floor, since the sharecropper in this case clearly discharges a debt to the owner. AA-EE are a final set of rulings that supplement M. 6:1-2. AA and CC are a set of balanced protases, each comprised of three items. BB and DD are balanced formulary apodoses. EE combines verbal elements

r

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of AA-BB and M. 6:2G. The attributive chain is identical with that at T. 3:1A. At AA-BB the sharecropper contracts to give the landowner produce that is not yet ready for tithing. He therefore does not tithe it. Once the produce is fully prepared and ready for tithing, however, the sharecropper must tithe the owner's portion (CC-DD). Since we deal with the case of a sharecropper who must tithe the owner's produce, MB and Lieberman hold that the landowner in question must be a gentile (c£ T. 6: lA). EE qualifies the ruling of M. 6:2G. There, as we recall, Judah holds that an Israelite who sharecrops for a gentile a field that previously had belonged to the Israelite's family must separate tithes from the owner's portion. We now add the rather obvious qualification that, if the sharecropper contracts to give the owner produce that is not yet ready for tithing, he need not tithe it. 6:3-5

A. A priest or [w-] a Levite who sharecropped a field for an IsraeliteB. just as they [the sharecropper and the landowner] divide [between them] the unconsecrated produce, so they divide [between them] the temmah [or first tithe]. C. R. Eliezer says, "[B, G', G 2, G 3, Ca, Pa, L, M, 0 2, S, P, K, Sa lack: Also (p) 3] the [temmah or] tithes [m'i1wt] belong to them [to the priest or Levite], D. "for on this account did they come [to sharecrop the field]." M. 6:3 (C-D: cf. y. 6:4) E. An Israelite who sharecropped [a field] for a priest or [w-] a LeviteF. the tithes belong to the owners. G. R. Ishmael says, "The provincial who sharecropped a field for a JerusalemiteH. "second tithe belongs to the Jerusalemite." I. And Sages say, "The provincial himself is able to go up [M, K: "to bring it up"] and to eat it in Jerusalem." M. 6:4 J. He who sharecrops olive trees for oilK. just as they [the sharecropper and the landowner] divide [between them] the unconsecrated produce, so they divide [between them] the terumah [and tithes]. L. R. Judah says, "An Israelite who sharecropped for a priest or a Levite olive trees for oil,

3

C£ Epstein, Mabo', p. 1007.

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M. [01, Gl, G 2 , G 3, Ca, L, M, 0 2 , S, P, K, B, MS: "or] for half of the profit [from its sale]N. "the tithes belong to the owners." M. 6:5

M. 6:3-5 comprise a single formal and substantive unit. A-B is a declarative sentence with balanced elements in the apodosis, h.wlqyn bh.wf:ynlh.wlqyn btrwmh. Eliezer's lemma, C glossed by D, responds to A's protasis and in substance disputes with B, although there is no formal link between the two apodoses. We should have expected either term, trwmh or m'srwt, to occur at both B and C. 4 E reverses A's protasis and, with F, forms an apocopated sentence. G-H is an apocopated sentence patterned on E-F, and attributed to Ishmael. Sages' contrary opinion, I, repeats G's subject but formally does not balance Ishmael's lemma. J's protasis departs from the pattern established at A and E by omitting reference to priests, Levites, and Israelites, and thus calls attention to itself as an exegetical fulcrum. K repeats B. L-M, attributed to Judah, follow the pattern of E-F. The principle behind the rulings of our unit already has been established at M. 6: 1. The owner of a field that has been given out for sharecropping shares the risks with the sharecropper, and hence retains ownership of the field. We now apply this principle to the case in which a priest or Levite sharecrops a field for an Israelite (A-B), and ask a further question. Can the priest or Levite sharecropper claim rights to all of the temmah or first tithe, respectively, including the owner's portion? Or do the Israelite owner's rights to the field entitle him to dispose as he wishes of his portion of the priestly gifts? B's anonymous opinion espouses the latter view. The Israelite owner retains his rights, and divides with the sharecropper both consecrated and unconsecrated produce in the proportions previously stipulated between them. Eliezer/ C-D, holds that all of the appropriate priestly dues go to the priest or Levite, since it is implicitly understood from the outset that a priest or Levite agrees to sharecrop a field only on condition that he receive all of the appropriate priestly gifts, including the owner's portion. 4 Msrwt is used more commonly in M.-T. than trwmh as the generic term for both terumah and tithes. In our unit the former term recurs at F and M while the latter recurs only at K, which simply repeats B. Albeck, pp. 86, 357, suggests that formal considerations account for the occurrence of the term trwmh (in the sense of ,"consecrated produce") at B and K; it is the standard formulary opposite of flwlyn ("unconsecrated produce"). 5 Probably the Yavnean Eliezer b. Hyrcanus; c( Neusner, Eliezer, I, pp. 351-52.

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At E-F we reverse the case of A-D. Now the owner is a priest or Levite and the sharecropper is an Israelite. Here the owner's rights to the field allow him to retain all of the terumah or first tithe, including the sharecropper's portion. E-F thus accord with the theory of A-B. Ishmael, G-H, holds that the case of a provincial who sharecrops the field of a Jerusalemite is analogous to that of E-F. Since second tithe must be eaten in Jerusalem, the J erusalemite owner can assert his rights of ownership over the sharecropper's portion of second tithe. Sages, at I, hold that the two cases are not analogous. The provincial can go up to Jerusalem and himself eat the second tithe there. Thejerusalemite landowner in this case does not possess a privileged status similar to that of the priestly landowner in E-F. The case of ]-K is an extension of the previous cases. Now the owner of an olive grove and the sharecropper agree to divide between them olive oil, a secondary, manufactured product of the grove, rather than the grove's produce, the olives themselves. J's protasis ignores the distinction drawn at A-B and E-F between the cases of a priest or Levite who sharecrop for an Israelite and vice versa. J-K thus hold that, in the present circumstances, the distinction is of no effect. The priestly gifts are to be divided between landowner and sharecropper, regardless of either man's status. \Vhy? Because manufactured items, like olive oil, are not deemed to be produce of the field. The owner's prior rights of disposition, if he is a priest and the sharecropper an Israelite, now cannot he exercised. Judah, L-M, rejects this ruling. He holds that the oil is to be treated as produce of the field, no different from the olives. Thus, in the case of a priestly landowner and an Israelite sharecropper, the owner retains his rights to all of the appropriate priestly dues, as at E-F, even in the extreme instance where the sharecropper contracts to sell the oil in return for half of the profits. T. Chapter Seven comprises an extensive set of materials that complement M. 6:3-5. Although we may subdivide this set on the basis of specific subjects and cases dealt with, the materials thematically form a single unit, and are lettered accordingly. The problem throughout, as in M., is the disposition of terumah and first tithe between priests or Levites and Israelites in various situations of shared or consecutive ownership of produce or property. As in M., we take account of the owner's prior rights of disposition. T. 7:1-5 deal with various explicit stipulations made between the sharecropper and the landowner as to the disposition of terumah and first tithe. T. 7:6 takes up the case, complementary to M.'s, of the landowner-tenant farmer relationship (familiar to us from

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M. 6: 1-2), and its implications for the disposition of tithes. T. 7:7-8 resume the matter of explicit stipulations, applied now to a different business relationship between a priest and an Israelite. T. 7:9, a formally perfect item, returns to the case of sharecropping and deals with a secondary problem: what if the field is sold to another after it has been let out for sharecropping? T. 7: 10 presents a situation which, according to Judah, is analogous to that of sharecropping. Sages will disagree. T. 7:11-12 digress slightly by turning to the case of an Israelite who gives a field for sharecropping to a gentile, Samaritan, or 'am ha'are,I. T. 7:13-15 then take up the matter of a priest who sells produce (7:13) or a field (7:14-15) to an Israelite, and vice versa, again with various explicit stipulations made as to the disposition of temmah. Internal to each of the enumerated subunits are the kinds of formal balances that we are now accustomed to seeing in T. In what follows we shall confine our remarks primarily to matters of substantive exegesis. A. (1) An Israelite who sharecropped a field for an[other] Israelite, or [w-] (2) a priest [who sharecropped a field] for a priest, or [w-] (3) a Levite [who sharecropped a field] for a LeviteB. they [the sharecropper and the landowner] divide [terumah and tithes] between them. C. (1) An Israelite or [w-] a priest who sharecropped a field for a Levite, or (2) an Israelite or a Levite who sharecropped a field for a priestD. they [the sharecropper and the landowner] are permitted [ed. princ. lacks: to declare and] to stipulate between them that the [terumah and] tithes fall to the common advantage [l'ml; i.e., that they will divide terumah and tithes between them]. T. 7:1 (p. 97, ls. 1-3) (A-B = y. 6:3) F. [In the case of] an Israelite who sharecropped a field for a priestF. terumah belongs to the priest, [and] they divide first and second tithe proportionately [so E throughout; ed. princ.: "between them"]. G. [If] he [the Israelite] sharecropped a field for a Levite, H. first tithe [GRA, MB, HY, Lieberman add: belongs to the Levite], [and] they divide terumah and second tithe between them. [G-H lacking in MS. E] I. A Levite who sharecropped a field for a priest]. terumah belongs to the priest, [and] they divide first and second tithe proportionately. K. A priest who sharecropped a field for a LeviteL. first tithe belongs to the Levite, [and] they divide terumah and second lithe between them. [K-I. lacking in MS. E] T. 7:2 (p. 97, ls. 3-7) (cf. M. 6:4)

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M. An Israelite who sharecropped a field for a priest and said to him, "[I will sharecrop for you] (1) on condition that the [terumah and] tithes belong to me," N. [or] (2) "on condition that the [terumah and] tithes belong to you," 0. [or] (3) "on condition that the [terumah and] tithes belong to me and to you"P. this [arrangement] is forbidden [y., GRA, MB, HD, HY, Lieberman: "permitted"]. T. 7:3 (pp. 97-98, Is. 7-9) (y. 6:3) Q A priest who sharecropped a field for an Israelite and said to him, "[I will sharecrop for you] (1) on condition that the tithes [i.e., terumah] belong to me"R. this is permitted. S. [If he said, "I will sharecrop] (2) on condition that the tithes belong to you"-or [so E; ed. princ.: "this is forbidden"] T. (3) "[on condition that the tithes, i.e., terumah] belong to me and to you"U. if he [the priest] agreed to sharecrop according to the customary procedure [i.e., if he does not cede to the owner unconsecrated produce in return for the additional terumah], this is permitted; V. if not, this is forbidden. T. 7:4 (p. 98, Is. 9-11) (y. 6:3) W. An Israelite who sharecropped a field for a priest [y., HD, GRA, MB, HY, Lieberman: "for an Israelite"] and said to him, "[I will sharecrop for you] (1) on condition that he [so E-i.e., "you; ed. princ.: "I"] take the tithes [i.e., the terumah] and give them to suchand-such [a priest]"X. this [arrangement] is forbidden; Y. (2) "on condition that we both take them [the tithes] and give them to such-and-such] a priest"Z. this is permitted. T. 7:5 (p. 98, Is. 11-13) (y. 6:3) AA. A priest or [w-] a Levite who rented [for a fixed payment in coin; skrw] or leased [for a fixed payment in kind; flkrw] [a field] from a priest or a Levite-BB. the [terumah or] tithes belong to the renter or the lessee. [PPP-AAAA follow here in ed. princ.] T. 7:6 (p. 98, Is. 13-14) CC. An Israelite who received from a priest coins with which to purchase produce in return for half of the profit [lmfl.ryt skr, i.e., in return for a portion of the produce], [and] he [the priest] said to him, "If its market value [ed. princ.: decreased or] increased, behold it is mine, and the tithes [i.e., the terumah] are yours"-

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DD. tllis is forbidden [y., GRA, HD, HY, Lieberman: "tills is pernlitted"]. T. 7:7 (p. 98, ls. 14-15) (y. 6:5; cf. M. B.M. 5:4, T. B.M. 4: 17-22) EE. A priest who received from an Israelite coins with which to purchase produce in return for half of the profit, [and] he [the Israelite] said to him, "If its market value decreased or increased, behold it is mine, and the tithes [i.e., the terumah] are yours"FF. if he [the Israelite] paid him [the priest] his [proper] compensation [in addition to the terumah], this is permitted; GG. and if not, this is forbidden. T. 7:8 (p. 98, ls. 15-17) (y. 6:5; cf. T. 5: 16) HR. (l) An Israelite who sharecropped a field for a priestII. the terumah belongs to the priest. JJ. [If] he [the priest subsequently] sold it [the field] to an[other] Israelite, KK. they [the Israelite sharecropper and the new Israelite owner] divide [the terumah] proportionately. U... (2) [If] he [the Israelite] sharecropped a field for an Israelite, MM. they divide [the terumah and tithes] between them. NN. [If] he [the Israelite owner subsequently] sold it to a priest, 00. they [the Israelite sharecropper and the new priestly owner] divide [the terumah] between them. PP. (3) [If] he [the Israelite] sharecropped a field for the daughter of an Israelite, QQ they divide [the terumah and tithes] proportionately. RR. [If] she [subsequently] married a priest, SS. the terumah belongs to the priest [so E; ed. princ.: "they divide (the terumah) between them"] TT. (4) [If] he [the Israelite] sharecropped a field for the daughter of a priest, UU. the terumah belongs to the daughter of the priest. VV. [If] she married an Israelite, WW. they [the sharecropper and the owners] divide [the terumah] between them. XX. [If] she was widowed or divorced, YY. the situation reverts to its initial status [i.e., the terumah belongs to the daughter of the priest]. T. 7:9 (pp. 98-99, ls. 17-21) (TT-YY = y. 6:3) ZZ. The cow of a priest that was put out to be raised in the keeping of an Israelite [with the condition of sharing the profits], and it gave birth to a firstlingAAA. "The firstling belongs to the priest," the words of R. Judah, BBB. and Sages say, "The firstling belongs to both of them." CCC. Said to them R. Judah, "You concede in the case of the produce

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DDD. EEE.

FFF.

GGG. HHH.

III.

JIJ. KKK.

LLL.

MMM.

NNN.

000. PPP.

QQQ RRR. SSS. TTT. UUU. VVV. WWW.

of a field that they [read, "it," i.e., the terumah] belong to him [the priestly owner)." They said to him, "If [in that case] the field itself belongs to him, [in this case] the cow itself belongs to both of them. "If the cow itself belonged to him [the priest), the firstling would belong to the priest." T. 7:10 (p. 99, Is. 21-24) (y. 6:3) He who gives out a field for sharecropping to a gentile, or to a Samaritan, or to one who is not trustworthy in the matter of tithingeven though an Israelite is not permitted to do this[ed. princ. adds: even though it (the produce) has not yet reached the stage at which it is liable for tithing) he must separate tithes on their behalf [ed. princ. adds: when it reaches the stage of liability to tithing). T. 7: 11 (p. 99, Is. 25-26) (y. 6:1) He who gives out his field for sharecropping to 'amme ha> are~ before it [the produce] reaches the stage at which it is liable for tithing, he [the owner) must [Maim., GRA, HD, MB, HY, Lieberman: "need not"] separate tithes on their behalf; from the time it reaches the stage of liability to tithing, he need not [Maim., GRA, HD, MB, HY, Lieberman: "he must"] separate tithes on their behalf. How [does he proceed]? He stands on the threshing-floor and separates tithes, and he does not scruple about that [quantity] which they [the 'am ha,are,s_ sharecroppers] may [already) have eaten, Since we are not responsible for deceivers. T. 7:12 (p. 99, Is. 26-29) A priest or [w-] a Levite who sold [ed. princ.: "leased") the produce of a field to an Israeliteif it [the produce] was [still] attached to the ground, the [terumah or] tithes belong to them; if it was detached from the groundbefore it was [finally] stacked [i.e., before its processing was finished and it was ready for tithing], [the terumah or tithes) belong to them; after it was [finally) stacked, [the terumah and tithes) belong to him. He separates terumah and [first] tithe [Lieberman: "terumah and terumah of the tithe], gives them to a priest, and the remainder is his. [If) he sold produce to thembefore it was [finally] stacked, [the terumah and tithes) belong to him [HY, Lieberman: "to them"];

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XXX. after it was [finally] stacked, [the terumah and tithes] belong to them [Lieberman: "to him"]. YYY. He separates temmah and temmah of the tithe [Lieberman: "temmah and (first) tithe"], and gives them to any priest he wishes. T. 7:13 (pp. 99-100, ls. 29-33) (VVV-XXX: cf. M. Pe'ah 1:9) ZZZ. A priest who sold a field to an Israelite and said [read with Lieberman: w'mr; E: n'mn; ed. princ. lacks], (1) "[I sell you this field] on condition that the tithes [i.e., the terumah] belong to me in perpetuity"AAAA. [if] he [subsequently] died, his sons [E, ed. princ.: "he"] receive no tithes. BBBB. [If he said, "I sell you this field] (2) on condition that the tithes [i.e., the terumah] belong to me and to my sons," ecce. [if] he [subsequently] died, the tithes belong to his sons. DDDD. [If he said, "I sell you this field] (3) on condition that the tithes belong to me as long as my field is in your possession"EEEE. [if] he [the purchaser subsequently] sold it to anotherFFFF. even if he [the first purchaser] thereafter repurchased it from him [the second purchaser]GGGG. he [the priest] receives no tithes. T. 7:14 (p. 100, ls. 33-36) (y. 6:3, b. B.B. 63a) HHHH. An Israelite who sold a field to a priest [so E; ed. princ., followed by Maim., Lieberman: "An Israelite who sharecropped a field for a priest"] and said to him, "[I will sharecrop for you] on condition that the tithes [the terumah] belong to me for four or five years"1111. this [arrangement] is permitted; IDJ. "[on condition that the tithes belong to me] in perpetuity"KKKK. this is forbidden, LLLL. for a priest cannot make [an Israelite] a priest [i.e., cannot permanently cede to him the rights of the priesthood to receive and dispose of terumah]. MMMM. Similarly, [in the case of] a Levite who owes money to an IsraeliteNNNN. [the Israelite] may not collect [first tithe] from others [i.e., other Israelites] and separate for it [i.e., for the amount of the debt], 0000. for a Levite cannot make [an Israelite] a Levite. PPPP. "An Israelite may separate [first tithe or tithe for the poor] with the permission of the Levite or with the permission of the poor person and pay him subsequently," the words of R. Meir. QQQQ R. Judah and R. Yose and R. Simeon say [so E; ed. princ.: "forbid"] except when he [the Israelite first] has given him [the Levite or poor person] a tenth. RRRR. [Lieberman omits: And] a priest who sold a field to an Israelite

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and said to him, "[I sell you this field] on condition that the tithe [i.e., the terumah] belongs to me for four or five years"SSSS. he [the Israelite] is not permitted to plant [in the field] a vineyard, or to plant woad, 6 or to make of it a field of reeds; TTTT. [If he said, "I sell you this field on condition that the tithes are mine] in perpetuityUUUU. he [the Israelite] is permitted to plant a vineyard, or to plant woad, or to make of it a field of reeds. T. 7:15 (p. 100, Is. 36-44) (HHHH-LLLL = y. 6:3; MMMM-0000 = y. Git. 3:7; PPPP-QQQQ cf. M. Git. 3:7, T. Ter. 1:14; RRRR-UUUU = y. 6:3) A-B complement M. 6:3-4A-F. When an Israelite, priest, or Levite sharecrops a field for someone of equivalent status, the terumah or first tithe is divided between the landowner and the sharecropper, since both have the same status claims to the priestly dues. The owner's rights in this case do not cancel those of the sharecropper. C-D is a case in which the owner ordinarily would receive all of the terumah or first tithe (= M. 6:4E-F), but T. tells us that the landowner and sharecropper now may explicitly stipulate to divide the priestly dues between them. The priest or Levite landowner is free to dispose of his dues however he may wish. He therefore may agree to divide them with his sharecropper. E-L, a formally perfect item, make explicit a point that M.'s language has left ambiguous. The priestly landowner is entitled to receive all of the terumah, but divides the rest of the tithes with the sharecropper. Similarly, the Levite landowner receives all of the first tithe, but divides the terumah and second tithe with the sharecropper. M. 6:4E-F do not disagree, but this point is obscured by E's compound protasis, which refers in the same clause to both priestly and Levite landowners, and by F's use of the generic, hm'frwt lb'!Jm. M-Z return to the matter of explicit stipulations between the landowner and the sharecropper as to the disposition of the tithes. M-P and Q-V are paired rulings. At M-P an Israelite sharecrops for a priest, who ordinarily would receive all of the terumah (M. 6:4£-F). The Israelite now explicitly stipulates that he is to receive all of the terumah,

6 lsatis tinctoria, a plant producing a deep blue dye; not liable to tithing. C£ Krauss TA, I, pp. 145, 551, n. 218; Low, I, p. 493ff.

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or that it is to be divided between them. 7 According to the reading of MS. Erfurt and ed. princ. this arrangement is forbidden. But the priestly landowner is free to dispose of his dues as he will (as at C-D). He certainly may agree to the Israelite's conditions if he wishes to do so. For this reason, GRA, MB, HD, and Lieberman prefer the reading of y., "permitted." 8 Q-V give the reverse case. Now the priest sharecrops for the Israelite. The priest may stipulate in advance that he is to receive all of the terumah. The Israelite landowner may agree to this as a favor to the priest (cf. T. 5: 16). But the priest may not stipulate that the landowner is to receive all of the terumah, for then it appears as if he is buying with priestly dues the right to sharecrop the field (cf. T. 5:18). We must read T with y., since without any explicit stipulation the terumah in this case is divided between the landowner and the sharecropper. The priest thus stipulates that the Israelite's portion is to be divided between them. This is permitted as long as the priest does not relinquish to the landowner part of his due share in the unconsecrated produce in order to obtain the additional portion of terumah, for then he would be purchasing priestly dues with his proper wages (cf. T. 5:20). W-Z deal with a similar problem. At W we must read "for an Israelite," with y., HD, MB, GRA, HY, and Lieberman, since a priest is free to dispose of his terumah as he wishes. Without any explicit stipulation in the present case, the landowner and sharecropper would divide the terumah between them (= A, above). Now the sharecropper stipulates that he is to receive all of the tithes and will give them to a certain priest. W-X forbid this arrangement, since the Israelite by his work thereby purchases tithes for a priest (but cf. T. 5: 19). But the sharecropper may stipulate that both he and the landowner will take their respective portions of the tithe and give them to a particular priest, for in this case he has not bought the tithes. AA-BB complement M. 6:3-4's rulings on sharecropping with the equivalent rulings on renting and leasing a field. As we recall from M. 6:1-2, the renter or lessee pays the owner a fixed sum of money or quantity of produce, respectively, regardless of the field's yield, and

7 The middle clause, "on condition that the priest receives it," serves only to balance the respective clause in S, since the terumah in any case belongs to the priest. 8 Alternatively, Kramer, p. 118, n. 13, tries to account for the present reading. The Israelite has no jurisdiction over the ternmah, which belongs to the priest. He therefore cannot stipulate how it is to be distributed.

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consequently owns the field for the duration of the lease. For this reason, temmah and tithes belong to the renter or lessee, regardless of his status or that of the landowner. The paired cases of CC-DD and EE-GG again illustrate the principle behind M-P and Q-V. At CC-DD an Israelite receives coins from a priest with which to purchase produce for seeding a field. In return for his work as the priest's agent he will receive a part of the produce of the field. The priest explicitly takes upon himself all of the risks and stipulates that he will take the unconsecrated produce and give the terumah to the Israelite. According to the reading of MS. Erfurt and ed. princ., this is forbidden, but y., HD, MB, GRA, HY, and Lieberman read "permitted," since a priest is free to dispose of his temmah as he sees fit. In the reverse case, EE-GG, the Israelite owner must not give the priest terumah unless he also pays him his proper wage in unconsecrated produce, since a priest cannot receive priestly dues as wages for his work (cf. T. 5:20). HH-YY, a formally perfect set of four cases, return to the topic of sharecropping and introduce a further variable into M.'s rulings. We know from M. 6:4E-F that when an Israelite sharecrops a field for a priest, the priest receives all of the temmah. But now the priest sells the field to another Israelite after it has been given out for sharecropping. The new owner and the sharecropper divide the terumah between them, since the new owner is an Israelite and since the priest cannot sell his priestly rights to another (HH-KK; cf. the principle at LLLL). In LL-00 the situation is reversed. When an Israelite owner sells to a priest, the priest and the sharecropper still divide the terumah between them. Why? Because the priest did not have property rights to the field when the sharecropping agreement was made and thus cannot now appropriate all of the terumah. More interesting variations of this principle occur in the cases that follow. At PP-SS the Israelite sharecrops for the daughter of an Israelite who subsequently marries a priest. We follow the reading of MS. Erfurt, according to which the priest now acquires full rights to the terumah. Unlike the previous cases, the ownership of the field has not changed hands, but the status of the same owner has changed. This affects the conditions of the sharecropping contract. Similarly at TT-YY, where the status of the landowner, who is the daughter of a priest, changes twice, the disposition of the terumah will change accordingly. At ZZ-EEE we have the case of a cow belonging to a priest that was put out to be raised in the keeping of an Israelite. The Israelite

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may make use of the cow with the understanding that both he and the priest have a share in the benefits. The cow now gives birth to a firstling, which ordinarily would go to the priest. Judah holds that this case is analogous to that of the Israelite who sharecrops for a priest. Just as the priest retains his rights to all of the terumah, so here he retains his right to the firstling. Sages reject this analogy. In the case of sharecropping, the field remains the sole property of the owner. But here, while the cow is put out to be raised, it is the joint property of the priest and the Israelite. The firstling therefore belongs to them both. FFF-000 digress slightly from the major theme of the unit, the disposition of priestly dues in various situations of shared ownership. We now have the case of an Israelite who lets out his field for sharecropping to a gentile or a Samaritan or an Israelite who is "not trustworthy in the matter of tithing," here referring to someone who is known not to separate tithes (so Lieberman). (Note that T. distinguishes between an Israelite who certainly does not tithe and an Israelite 'am ha, ares. who may or may not separate tithes. Samaritans here are deemed to be like gentiles and those who certainly do not tithe, rather than like Israelite 'amme ha,ares_.) This is forbidden, since the sharecropper's portion of the produce will not be tithed. The landowner therefore is penalized by being made to separate tithes for the sharecropper's portion, even when they divide the produce between them before it has reached the stage of liability to tithing. On the other hand, if the sharecropper is an 'am ha, ares., he may possibly tithe his portion of the produce. The landowner need not take responsibility for tithing the sharecropper's portion if they divide the produce before it reaches the stage of liability to tithing, since the 'am ha, ares_ may tithe it. But he must tithe the 'am ha,ares_'s portion if they divide the produce after it has become liable to tithing, since it is forbidden to give tbl to an 'am ha, ares_. The owner separates tithes when the produce is divided at the threshing-floor, and does not scruple about any produce that the sharecropper may illegally have eaten before it was divided. PPP-YYY again illustrate the principle of M. 6:4E-F, now in a different situation. A priest or Levite sells produce of his field to an Israelite. If the produce is still attached to the ground, the owner retains the rights to terumah or first tithe, since he owns the ground. Similarly, if the produce is detached from the ground but is still being processed, the owner retains the rights to the tithes, since they have not yet left his domain. Only if the produce is fully processed and liable to tithing has the Israelite purchaser bought the right to dispose of tithes, since

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the priest or Levite now could have separated them before selling the produce, but did not do so (Lieberman). If the produce is purchased from a Levite, the purchaser has also acquired first tithe for himself, since the Levite has sold it to him (so UUU, following Lieberman). In the reverse case (VVV-YYY), where an Israelite sells produce of his field to a priest or Levite, the tithes belong to them only if the produce was acquired before it was fully processed and liable to tithing. If the produce is purchased after processing, the tithes belong to the owner to give to any priest or Levite whom he wishes (following the reading of GRA, HD, MB, Lieberman; cf. M. Pe'ah 1:9). According to y., the reason for this ruling is to discourage priests and Levites from purchasing produce from the threshing-floor before it has been tithed, thereby preempting the rights of their fellow priests and Levites to receive priestly dues. ZZZ-GGGG return to the matter of stipulations, now in the case of a priest who sells a field to an Israelite. The principle behind the rulings is that the stipulation is taken at its face value. Thus if the priest stipulates that the terumah belongs to him in perpetuity, his sons do not receive it after his death, since they have not been explicitly included in the stipulation. At HHHH-LLLL, an Israelite sells a field to a priest and stipulates that the terumah belongs to himself. This is permitted if the stipulation is only for a few years, but forbidden if the stipulation is in perpetuity, since a priest cannot permanently cede his rights to receive and dispose of priestly dues, nor can a non-priest acquire them. The same principle is illustrated at MMMM-0000, in the case of a Levite who owes money to an Israelite. The Israelite must not obtain the money by collecting first tithe from other Israelites, for he cannot arrogate to himself the Ievitical prerogative of receiving tithes. Similarly at PPPP-QQQQ, the Israelite wishes to purchase first tithe or tithe for the poor from the Levite or poor person. According to Meir, he may separate the tithes from his own produce with their permission and pay at a later date. Judah, Yose, and Simeon, however, consider this to be an arrogation of the Levite's or poor person's right to receive the tithes. The Israelite must actually give them the tithes before he can purchase them (so Lieberman, TK, I, p. 280). The final case, RRRR-UUUU, contrasts with that of HHHH-LLLL (and signals MMMM-QQQQ as a secondary expansion). Now a priest sells a field to an Israelite. If the priest stipulates that the terumah belongs to him for a few years, the Israelite may not plant the field with any

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crop that is not liable to tithing (such as woad or reeds), or make of it a vineyard, the produce of which is not consumed or liable to tithing for the first three years, for then he would be depriving the priest of his dues. On the other hand, if the priest stipulates that the terumah belongs to him in perpetuity, the Israelite may plant the field with crops not liable to tithing, since the priest can receive terumah in future years. 6:6 A. The House of Shammai say, "A man should sell his olives only to a h.aber." B. The House of Hillel say, "Also to one who separates tithes." C. And the more punctilious among the House of Hillel would act according to the words of the House of Shammai. M. 6:6 (cf. T. Ma. 3:13)

M. 6:6, a singleton, is related neither formally nor substantively to the preceding materials. The occurrence of the term zyrym in this and the preceding pericope may account for M. 6:6's inclusion at this pointa highly external and formal type of redactional linkage. The pericope is a Houses' dispute. The subject of the dispute is contained within the Shammaite lemma, to which the Hillelite lemma responds. C glosses A-B. The Shammaite opinion accords with M. 2:3. Foodstuffs that may become susceptible to uncleanness must be given only to h.aberim who will preserve them in conditions of cleanness. The Hillelite opinion is extraordinary and in fact is rejected by C's gloss. Why do the Hillelites hold that we may sell olives to those who simply separate tithes but do not scruple about cleanness? Either because they assume that the olives are going to be eaten before they are rendered susceptible to uncleanness, or because they simply are not concerned to preserve in cleanness items that leave our possession. The Hillelite opinion also assumes that we have not already separated tithes from all produce that we sell, flagrantly contradicting a fundamental assumption of our tractate. We may have here an echo of an earlier, subsequently discarded, conception of tithing practices. 9

9 Alternatively, MS understands zyrym as referring to olive trees rather than olives (the term conveys both meanings in Mishnaic usage), which obviates this last difficulty.

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6:7-10 A. Two [men] who gathered [the grapes of] their vineyards into a single winepressB. one [who] separates tithes and the other [who] does not separate tithesC. the one who separates tithes tithes his own [share of the wine] and his portion [of the grapes] wherever it may be. M. 6:7 D. Two [men, one who separates tithes and one who does not separate tithes] who [jointly] sharecropped a field, or inherited [a field], or became joint ownersE. he [the one who separates tithes] may say to him [the one who does not separate tithes], "You take the wheat in such-and-such a place and I [will take] the wheat in such-an-such a place; F. "you [take] the wine in such-and-such a place and I [will take] the wine in such-and-such a place." G. But he may not say to him, "You take the wheat and I [will take] the barley; H. "you take the wine and I will take the oil." M. 6:8 I. A fl.aber and an 'am ha,ares_ who inherited [the property of] their father, [who was] an 'am ha, are~ ]. he [the fl.aber brother] may say to him [the 'am ha,ares. brother], "You take the wheat in such-and-such a place and I [will take] the wheat in such-and-such a place; K. "you [take] the wine in such-and-such a place and I [will take] the wine in such-and-such a place." L. But he may not say to him, "You take the wheat and I will take the barley; M. "you take the wet produce [susceptible to uncleanness] and I will take the dry [insusceptible] produce." M. 6:9 (b. Hag. 25b) N. A proselyte and a gentile who inherited [the property of] their father, [who was] a gentile0. he [the proselyte brother] may say to him [the gentile brother], "You take the idols and I [will take] the coins; P. "you [take] the wine and I [will take] the produce." Q And if [he said this] after it [the property] came into his possession, R. this [arrangement] is forbidden. M. 6: 10 (b. Qid. 17b, b. A.Z. 64a)

M. 6:7-10 comprise the third and final major subunit of our chapter. The subunit formally is characterized by apocopation, at A-C, D-E, I-j, and N-0. The protases follow the patterns, srrym s + plural perfect verb (A, D), or X + Y s- + plural perfect verb (I, N). A-C is an apocopated sentence. E-H depend for their meaning on B, thus linking

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D-H with A-C. G-H balance E-F. F and H repeat the pattern of E and G, respectively. I supplies a new protasis for the case of D-H, but repeats D's [yrfw. J-L = E-G. M is patterned on, but differs from, H, and points to the main substantive difference between the two pericopae. N's protasis follows the pattern of I, while 0-P formally are similar to G-H and L-M. Q-R gloss M-P. Our unit it is concerned with the division of produce or property joindy owned by two men of different status. Specifically, do we hold that each man has equal ownership in every part of the whole, or can we say retrospectively that the particular portion that each takes was his from the outset and exhausts the extent of his ownership in the whole? The import of our ruling is to determine, for instance, whether a h.aber who joindy owns a field with an 'am ha' ares. need separate tithes only for the portion of the produce that he takes for his own, or whether he must separate tithes for the 'am ha' arels portion as well, since part of it in fact belongs to the h.aber. Thus at A-C we have the case of two men, only one of whom separates tithes, who gather the grapes of their vineyards into a single winepress. Each man's grapes are thoroughly intermingled with those of the other in every part of the wine. The man who tithes therefore separates tithes from that portion of the wine which he takes as his own, but he also must separate tithes (of dema'i; so Albeck, based on y.) for his portion of the grapes, wherever they may be. Otherwise he certainly has given some of his untithed produce to one who does not tithe, which is forbidden. T. 6: 11 will elaborate this ruling by stating that the man separates tithes of dema'i for half of his fellow's share of the wine, since half of his own grapes now may be in his fellow's possession. D-H refer to the case of joint ownership or proprietorship of a field. We must read the condition of B into D-H, that is, one man separates tithes and the other does not. Unlike the preceding case, however, neither of the men previously owned a specific, designated part of the produce. Each therefore has an equal share in the field. The problem of our pericope is how the produce can be divided up without the man who tithes having to separate tithes for the whole, on the one hand, or violating the prohibition against giving fully untithed produce to someone who does not tithe, on the other. E-F hold that the principle of retrospective designation applies as long as the two men divide between them a single, homogeneous crop (such as wheat), in which each has an equal share. That is, each man takes his portion of the crop wherever he wishes and we assume that this portion was

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his from the outset and completely exhausts his ownership-rights in that particular crop. But a division of the field in which each man takes as his share a particular crop in its entirety is forbidden, since we hold that both men have an equal share in each kind of crop. The principle of retrospective designation does not apply in such a case. The man who tithes would now be guilty of giving, for example, half of his own fully untithed wheat to someone who does not separate tithes, in exchange for half of the other man's barley (G-H). L-M repeat the particulars of D-H, now in the case of a flaber and an 'am ha, ares. who inherit the property of their father, who was an 'am ha, ares.. The produce in this case may or may not have been tithed, that is, it is held to be dema,i. The problem, then, is that the flaber must not give dema,i-produce to an 'am ha,ares.. But he also wants to avoid having to give tithes for all of the produce. We solve the problem in the same manner as at D-H. As long as the two men divide each crop between them, the principle of retrospective designation can apply. But this principle does not apply if each man takes a different kind of produce as his share. J-L, which repeat E-G verbatim, deal with the issue of tithing. M, which differs from H, introduces the matter of cleanness particular to the flaber. M holds that produce which is susceptible (i.e., "wet" produce) and produce which is not susceptible ("dry" produce) are deemed to be two heterogeneous kinds, on the analogy of wheat and barley or wine and oil. The flaber and the 'am ha, ares. have an equal share in both wet and dry produce, and the principle of retrospective designation does not apply. If the flaber then stipulates that he will take all of the dry produce, and his 'am ha, ares. brother all of the wet produce, he is guilty of giving to an 'am ha, ares. produce susceptible to uncleanness (cf. M. 2:3). N-R give a final variation on our theme. A Jewish proselyte and his gentile brother inherit the property of their father, who was a gentile. The proselyte, unlike the flaber in the preceding case, may take as his share of the inheritance all of a single kind of property, such as money or produce, and leave to his brother all of the idols or libation wine without violating a prohibition, here against deriving benefit from the exchange of items used in idolatrous worship. Why? Because a proselyte has no automatic inheritance rights. He is deemed to be born anew at the time of his conversion, and to sever all familial ties with his gentile relatives. But the proselyte may take possession of the inheritance, if he so wishes, through a formal act of acquisition. Before this act has been performed, the proselyte is not deemed legally to own any part

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of the property. He therefore may stipulate with his gentile brother that he is to receive only coins or produce, and has not thereby derived benefit from the exchange of idols or libation wine, since he as yet has no share in them. Q-R add the requisite qualification. If the proselyte already has performed the legal act of acquisition, he may not make such an arrangement with his brother, for now he has an equal share in every kind of property, including the idols and the libation wine, and would thereby be deriving benefit from the latter's exchange. A. A haber and an 'am ha' ares_ who inherited [the property qf] their father, [who was] an 'am ha'are~ B. he [the haber brother] is not permitted to sqy to him [the 'am ha'ares. brother], "You take the wheat in such-and-such a place and I [will take] the wheat in such-and-such a place; C. ''you [take} the wine in such-and-such a place and I [will take] the wine in such-and-such a place," D. but they divide [all of the produce] equally. E. The haber [brother] even divides [the produce] for him [the 'am ha'ares. brother] in his presence [and gives him his (the 'am ha'arels) portion]. F. The haber eats the dry produce [which has not been rendered susceptible to uncleanness] and bums the wet produce, G. since they [i.e., the Sages] have said, "All the foodstuffs of the 'am ha'ares. that require preparation in conditions of cleanness are burned." H. [If] they inherited [the produce of] their father, [who was] a haber, I. he [the haber brother] is permitted to say to him [the 'am ha'ares_ brother], "You take the wheat in such-and-such a place and I [will take] the wheat in such-and-such a place; ]. "you [take] the wine in such-and-such a place and I [will take] the wine in such-and-such a place," [D-J lacking in MS. E] K. even though they have said, "A haber who died and was survived by sons who were haberim and [sons who were] 'amme ha' ares. should not bequeath foodstuffs requiring preparation in conditions of cleanness to the 'am ha'ares. [sons], but only to the haberim." [or, following Lieberman: "A haber who died ... (and left no will), they do not cause the 'am ha' ares. son to inherit foodstuffs requiring preparation in conditions of cleanness .... "] T. 6:8 (pp. 95-96, ls. 22-29) (y. 6:9; F: b. Hag. 25b; A-G: cf. M. 6:9) L. [If] he [the father] left behind second tithe~ M. he [one brother] is not permitted to say to him [the other brother], "You take the wheat [that is second tithe] and I [will take] the barley; N. "you [take] the wine [that is second tithe] and I [will take] the oil," 0. but he rather says to him, "You take the coins [of second tithe] from the wheat and I [will take] the coins [of second tithe] from the barley;

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P. "you [take] the coins [of second tithe] from the wine and I [will take] the coins [of second tithe] from the oil." T. 6:9 (p. 96, ls. 29-32) Q A h.aber and one who is not trustworthy in the matter of tithing who [jointly] purchased produce, [or] who [jointb!] inherited [afield], or who became joint owner~ R. he [the haber] is permitted to sqy to him, "You take the wheat and I [will take] the bar0; S. ')au [take] the wine and I [will take] the produce [so E; ed. princ.: "oil"]," T. for [with regard to] any item that one is permitted to sell as dema'i, he is permitted to do thusly [that is, to give it as dema'i to one who is not trustworthy in the matter of tithing]. T. 6:10 (p. 96, Is. 32-34) (Q-S; cf. M. 6:8) U. [If] they [one who tithes and one who is not trustworthy in the matter of tithing (CC)] purchased a heap of produce, or a basket of grapes, or a vat of olivesV. this one tithes his own [portion] and the other one tithes his own [portion]. W. [If] they [so E; ed. princ.: "he"] purchased [produce] and they later became joint owners, X. he [the one who tithes] must separate tithes for the whole [combined quantity of produceJ. Y. [If] (1) this one brought his own hampers of sheaves and the other brought his own hampers of sheaves, Z. (2) this one brought his own baskets of olives and the other brought his own baskets of olives, AA. (3) this one brought his own baskets of grapes and the other brought his own baskets of grapes, BB. (4) or they gathered [the grapes qf] their vineyards into a single winepres~ CC. one separates tithes and the other does not separate tithe~ DD. the one who separates tithes tithes his own [portion] as certainly untithed, and half of his fellow's portion as dema'i. T. 6:12 (p. 96, ls. 34-40) (y. 6:7; BB-DD = M. 6:7) EE. A prose!Jte and a gentile who inherited [the properry qj] their father, [who was] a gentil~ FF. he [the prose!Jte] is permitted to sqy to him [the gentile], "You take the idols and I [will take] the utensils; GG. ')au [take] the wine and I [will take] the produce." T. 6: ll (p. 96, ls. 40-41) (M. 6: l 0, b. Qj.d. l7b, b. A. Z. 64a) HH. Onqelos the proselyte divided [his father's estate] with his brothers11. he dealt more stringently with himself and took his portion to the Dead Sea [and threw it in]. lJ. [If] they [the proselyte and the gentile] inherited a bathhouse,

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KK. he [the proselyte] is permitted to say to him, "You take [the income earned from it] on the Sabbath as your portion and I [will take the income earned] on weekdays as my portion." LL. An Israelite and a gentile who [jointly] purchased [so ed. princ.; E: "inherited"] the house [viz., household property] of a gentileMM. he [the Israelite] is not permitted to say to him [the gentile], "You take the idols and I [will take] the utensils; NN. "you [take] the wine and I [will take] the produce." 00. [If] they purchased a bathhouse, PP. he [the Israelite] is not permitted to say to him, "Let [its proprietorship and profits on] the Sabbath be your portion and [on] weekdays be my portion." QQ But if he stipulated with him [to purchase the house or bathhouse] on this condition [ed. princ. adds: from the outset], it is permitted. T. 6:13 (pp. 96-97, ls. 41-46) y. 6:11; c£ b. A.Z. 22a) RR. A city in which there are (1) Israelites and gentiles, [and] Israelite guards and gentile guards, [or] (2) fully tithed and fully untithed produce, [and] guardians of fully tithed and guardians of fully untithed produceSS. they [the Israelite guards or guards of fully tithed produce] are permitted to say to them [the gentile guards or guards of fully untithed produce], "[The produce earned as wages for guarding in] the northern part of the city is our portion and [the produce earned as wages for guarding in] the southern part of the city is your portion." TT. If they made a detailed reckoning, it is forbidden. T. 6:14 (p. 97, ls. 46-48) (TT = 5:15B) T. 6:8-14, T.'s correlative materials to M. 6:7-10, comprise citations and glosses of M., and further extensions of M.'s cases. The formulary patterns followed throughout are those of M. For this reason we again shall limit our comments primarily to substantive exegesis. A-C = M. 6:91-K. But T., vs. M., forbids the llaber to stipulate with his 'am ha' ares. brother that each will take his share of the same crop in a particular part of the landholding. The brothers instead must divide equally all of the produce in every part of the field. At first glance we might suppose that T. rejects M.'s principle of retrospective designation, and for this reason demands that all of the produce in every place be divided equally between the two brothers. But the sequel at H-J shows that this is not the case. In fact we have here a pair of balanced rulings, A-D (+ E + F-G) and H-J (+ K), that must be interpreted as a single unit. H-J will serve as the exegetical fulcrum for A-D. H-J admit the relevance of the principle of retrospective designation when

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the deceased father was a h.aber. Why? Because all of the produce is known to be clean and fully tithed. A single crop therefore is considered to be a homogeneous entity. In the light of H-J, how are we to understand A-D? A-D's problem cannot be tithing, for all of the crop uniformly is derna'i. The problem then must be cleanness. We assume that the h.aber wishes to take as his share of the wheat a portion which he knows to be insusceptible to uncleanness, while his brother will take that portion which has been rendered susceptible. Similarly he wishes to take as his share of the wine a portion which he knows not to have been made unclean, while his brother will take that portion which has been made unclean. 10 Now the single crop no longer is considered to be homogeneous, but rather is deemed to be two kinds in which the brothers have an equal share. For this reason the principle of retrospective designation is inapplicable, and all of the crop must be divided equally between the two brothers, if the h.aber is not to violate the prohibition against giving some of his clean produce to an 'am ha' ares_. According to E's gloss, the h.aber may even divide the produce himself, giving the 'am ha'arels portion to him without thereby violating the prohibition against giving clean foodstuffs to an 'am ha' ares_. Why? Because, now that clean and unclean foodstuffs are being divided equally, the principle of retrospective designation again applies, and we hold that that portion of clean wine or insusceptible wheat which the h.aber gives to the 'am ha' ares. was the latter's property from the outset. D-E then also support our interpretation of A-C. Here is an instance in which rigid adherence to formulaic language and balanced formal patterns both create exegetical problems (at A-C) and help resolve them (at H-J, paired with A-C). F-G's gloss is obvious. It is not clear, however, whether we refer solely to the burning of unclean ternmah (in which case our two brothers would be priests), or whether F-G hold that unconsecrated produce that has become unclean also is to be destroyed. K's gloss is equally obvious. Both G and K are introduced by the standard formulae-mpny!'p 'l py f'mrw. L-P extend the principle of M. 6:8-9 to a new case. The antecedent of L in fact is neither A nor H, since neither cleanness nor tithing is at issue here. The distinction between h.aberim and 'amme ha'ares. is therefore irrelevant. The problem rather has to do with second tithe, with

10

Alternately, the reference to wine is simply formulaic, following M.'s pattern,

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which it is forbidden to do business and which we must not exchange (M. M.S. 1: 1). Since both brothers share equally in every kind of produce, they may not stipulate between them that one will take his portion of second tithe in one kind of produce, e.g., wheat, while the other takes his portion in another kind, e.g., barley. This would involve the exchange of second tithe, which is forbidden. But they may agree that each will take the coins of second tithe from a particular crop, for the coins are deemed to he homogeneous, whatever their origin, and are subject to the principle of retrospective designation. Q-S = M. 6:8D+G-H, with slight variations at QID. T., however, reverses the valence of M.'s ruling. According to the explanatory gloss at T, we deal here with a case in which dema'i-produce, rather than fully untithed produce, is acquired jointly by two men, only one of whom separates tithes. 11 The two men may agree that each will take as his portion of the field the entirety of a single crop. T. does not suppose that the principle of retrospective designation applies here. The man who separates tithes indeed has given dema'i-produce to the man who does not tithe. 12 But T. holds that the circumstances of our case are those in which it is permitted to sell dema'i-produce, that is, we deal with large quantities of produce that will not be measured out exactly (cf. M. 2:4-5 and T. 3:10-13, above). The exchange therefore is to be permitted. T. here follows the theory of Sages, vs. Meir, at T. 3:13, that anyone may sell dema'i, not simply wholesale grain dealers. U-DD are a sustained unit that deals with the extent of tithing liability when two men, only one of whom separates tithes, mix their produce or become joint owners of produce. At U-V the two men jointly purchase a large quantity of homogeneous produce. They combine their resources only in order to take advantage of cheaper, bulk rates, with the prior understanding that they subsequently will divide the produce

11 The problem of M. 6:8, as we have explained it, is the exchange of certainly untithed produce rather than dema'i. But the two protases, M. 6:8D and T. 6: IOQ, differ in their primary lemmae. M. speaks of two men who joindy sharecrop a field, while T. deals with two men who joindy purchase produce. In the former instance, the produce of the field is certainly untithed, while in the latter, the produce purchased is dema'i. The two lemmae that follow in both M. and T., .fyr.fw wfnfttpw, "who inherited a field or become joint owners" are secondary. 12 We note that T. here, as at 3:5-9a, uses the term haber with the sense of "one who is scrupulous about tithing" and in contrast to my s'ynw n'mn 'l hm'srwt, "one who is not trustworthy in the matter of tithing." The issue of purity is not raised in this pericope. The same usage obtains at M. 6:12 and T. 8:1-3 (haber vs. 'am ha' areJ).

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between them. Here the principle of retrospective designation applies, and each man therefore is responsible for tithing only the share that he receives. W-X give us the opposite situation. Here the two men purchase produce together and decide to become joint owners of the whole. The man who tithes now must separate tithes for all of the produce, for in this case he has a share in every part of it. Y-DD give us a final case, which is that of M. 6:7. BB-CC = M. 6:7A-B. Now the two men bring together for processing produce that each owns separately. The produce of each is thoroughly mingled with that of the other. Assuming that each contributed an equal amount of produce, it is likely that each receives back half of the other's property. The man who tithes therefore separates tithes for the portion that he receives back, and separates tithes of dema'i for half of his fellow's portion. In this way he certainly has separated tithes for all of his own produce, wherever it may be. EE-GG = M. 6: 1ON-P. HH-11 supply a precedent in which Onqelos' behavior surely is deemed to be exemplary. JJ-KK once more illustrate the principle of M. 6:10. LL-NN and 00-PP give us the cases opposite to those of EE-GG and JJ-KK. They are self-explanatory. QQ) gloss applies to both LL-NN and 00-PP. Before purchasing the gentile's house or the bathhouse, the Israelite may stipulate that he only purchases on the condition that he will take the utensils and produce as his share and the gentile will take the idols and wine, or that he will take the proceeds from the bathhouse on weekdays and the gentile will take them on the Sabbath. Since the Israelite does not yet own a portion of the property, his situation is analogous to that of the proselyte. By his stipulation he does not derive benefit from the exchange of items used in idolatrous worship. The same point is made at RR-TT. We have a city in which gentiles and Israelites guard both gentile and Israelite property, or, alternatively, a city in which both haberim and camme ha' ares. guard produce, some of which is fully tithed and some of which is not. The guards receive as wages a portion of the produce that they guard, or, in the former case, a portion of the revenue from the establishment that they guard. The Israelites do not wish to benefit from anything having to do with idolatry, and the haberim do not wish to receive their wages in untithed produce. The Israelite guards, or haberim, from the outset may therefore stipulate with the gentiles, or ah [of one kind of seeds] which contains a quarter [-gab] [most mss. 1 add: of seeds] of another kind (mmyn 'llr, B C, Geniza fragments, 2 K, Pr, V: of one kind (mmyn ckd]S-he shall lessen [the quantity of seeds of the other kind, so that those seeds form less than a quarter-gab]. B. R. Yose says, "He shall sift [out the other kind completely]." C. [And it makes no difference] whether [the quarter-gab consists] of one kind or two. D. R. Simeon says, "They only said [that he must lessen the quantity of seeds in the quarter-gab when the latter consists solely] of one kind." E. And the sages say, "Everything which is [considered] diverse-kinds with [the seeds of] the se>ah combines (ms_trp) to [form] the quarter [-gab]."

M. Kil 2: l (A: B. M.Q 6a; A-B: M. B.B. 94a)

F. Under what circumstances? G. (l) When grain [is mixed] with grain, (2) and pulse with pulse, (3) grain with pulse, (4) and pulse with grain. H. But they said (b'mt 'mrw) [C, K, L, 0, P, Pr. omit: said], "Gardenseeds which are not eaten combine (ms.trpyn) to form an amount sufficient to prohibit the sowing of the se' ah when they total] one twenty-fourth of [the volume] which is sown4 in a bet se'ah." I. R. Simeon says, 'just as they said [this ruling in order] to make [the law] more stringent [in one case], so did they say [the same ruling in order] to make [the law] more lenient [in another]:

1 For the list of mss., see Zachs, I, p. 229, on I. 1, and Y. N. Epstein, Introduction to the Text qf the Mishnah [He b.]. Second edition (1948; Jerusalem: Magnes Press, 1964), p. 78. 2 For the particular Geniza fragments, see Zachs, ibid. 3 According to Zachs, I, p. 229, n. 4, this reading is due to a copyist's error. 4 Lieberman (TK, II, p. 605, n. 49) notes that the verb "falls" has the sense of "sown in a known area." Cf. also Feliks, Agriculture in Palestine in the Period qf the Mishna and Talmud [Heb.] (Jerusalem: Magnes Press, 1963), p. 157.

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J. "Flax5 [which has been mixed] with [a se'ah of] grain combines [to form an amount sufficient to prohibit the sowing of the se'ah when it totals] one twenty-fourth of [the volume] which is sown in a bet se'ah." M. Kil. 2:2

M. Kil. 2: 1-2 deals with the problem of sowing seeds of diverse-kinds which have been mixed together, thus continuing the discussion of sowing diverse-kinds which began atM. 1:9E-G. M. consists of four parts, A-B, concerning the sowing of different kinds of seeds with one another, C-E, dealing with the combining of seeds to form a minimum quantity, F-G, glossing A-B, and H-J, dealing with mixtures containing garden-seeds or flax. We shall consider each of these sections in tum. A describes a situation where a se' ah of one kind of seeds (henceforth: principal seeds) contains a quarter-gab(= one twenty-fourth of a se'ah6) of another kind of seeds (henceforth: secondary seeds). According to A one must lessen the quantity of secondary seeds before sowing the se' ah. Y. understands A to mean that one must reduce the proportion of secondary seeds to principal seeds. Therefore one may either lessen the quantity of secondary seeds or add to the amount of principal seeds (Y. Kil. 2:1 (27c), Maim., Comm., Code, Diverse-Kinds 2:1, GRA). The purpose of this action is to avoid presenting the appearance of sowing diversekinds (TYY, GRA, MR). It is apparently assumed that the diversekinds would be noticed (later, when the plants actually grew) only if the secondary seeds comprised at least one twenty-four of the se' ah. In B, Y ose disagrees with A and says that one must remove all of the secondary seeds from the se'ah. Y ose apparently reasons that one may not sow any amount of diverse-kinds, and therefore one may not leave any secondary seeds in the se' ah. The issue of the dispute thus concerns whether the appearance or actual sowing of diverse-kinds determines liability. While A apparently maintains that one need only be concerned about the appearance of diverse-kinds, Y ose says that the actual sowing of diverse-kinds is prohibited, even when the appearance of diverse-kinds will not result. C-E glosses A-B with a dispute concerning whether or not several different kinds of secondary seeds may join together to form the quartergab mentioned in A The dispute consists of three opinions. C states

Linum usitatissimum, of the flax family (linae). See Feliks, Mixed Sowing, p. 198. A se'ah (= 0.565 1.) consists of six qabs (one qab = 1.427 !.), so that a quarter-gab (= 356.896 cc.) is one twenty-fourth of a se'ah. 5

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that different kinds of seeds may combine to form the quarter-qab. Simeon, on the other hand, says in D that the quarter-qab may consist of only one kind. In E the sages basically restate the position of C in the language of A ("se'ah" and "rova'"), for they maintain that every kind of seed which is considered diverse-kinds with the principal seeds combines to form the quarter-qab. The dispute then poses a problem, for it contains two different versions of the same position. We may resolve this difficulty by noting that C is only necessary to A because of D. In other words, it is only necessary to specifY that the quartergab of A may consist of either one or two kinds because Simeon says that it must be composed of one kind. Therefore C was added to the pericope together with D. E, which, without the attributive formula, restates C as an autonomous rule, was then added to the dispute of C-D. The issue of the dispute concerns whether or not the quarter-qab of seeds must be lessened even when it consists of more than one kind. According to C and E such a quarter-qab must be lessened, presumably because such a quantity of seeds will produce the appearance of diversekinds even if the seeds themselves are of different kinds. Simeon, however, disagrees in D, maintaining the seeds will produce the appearance of diverse-kinds only when the quarter-qab consists entirely of one kind. F-G glosses A-B, stating that the law of that unit (i.e., that one may not sow a se'ah which contains a quarter-qab of another kind of seeds) applies only to mixtures involving grain and/ or pulse. G then simply consists of the four possible combinations of the words tbw' h and qtnyt. Feliks explains that the grains involved are probably wheat, barley, tworowed barley, rice-wheat and spelt (all belonging to the grass family [Graminae]). 7 Pulse refers to certain plants of the pea family (Papilionaceae). The particular grain and pulse of which M. speaks have large seeds which are usually sown close together, so that a relatively high volume of seeds is sown in a given area (or, they are sown at a high rate [= volume/area]). 8 According to G, therefore, the law of A-B

7 Feliks, Mixed Sowing, pp. 194-195. Feliks adds that rice, sorghum and millet were also considered grains, except that they were sown at a rate lower than that of the others. For this reason, Feliks suggests that M. does not refer to these three grains when it speaks of a mixture of grain and pulse (for then the rate of the former would not correspond to that of the latter).

8

Ibid.

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applies only when all of the seeds in the mixture are sown at this rate. MR points out that M. assumes this rate to be a se'ah per bet se'ah. 9 H-J concerns the measure in which garden-seeds (H) and flax (1-J) prohibit the sowing of a se'ah. H is connected to G by the phrase b'mt 'mnv, which, according to Lieberman, 10 should simply read b'mt. This phrase usually introduces a particular case which does not follow a foregoing general ruleY In this instance, then, H is contrasted with G, for the law of A-B, which applies to grain and pulse, does not apply to garden-seeds, as we shall now see. H states that garden-seeds which are not eaten combine at one twenty-fourth of the volume sown in a bet se'ah. The garden-seeds referred to here are those seeds which are not produced as the fruits of their plants (e.g., seeds of onions, turnips, etc.; cf. M. Ma'as. 5:8). These seeds are said to combine to form a certain measure. Now the meaning of "combine" in this context is not clear. It is likely that "combine" has the sense of "combine to prohibit," or simply "prohibit" (GRA, cited by Feliks, Mixed Sowing, p. 197). 12 H then says that gardenseeds prohibit the sowing of a se' ah at one twenty-fourth of the volume sown in a bet se' ah. Garden-seeds are then distinguished from grain and pulse, which prohibit the sowing of a se'ah at a quarter-qab (A+G). Alternatively, the statement may mean that different kinds of gardenseeds combine to prohibit the sowing of a se' ah at the given measure (Maim., Comm., Sirillo, TAS, MR [latter three cited by Feliks, Mixed Sowing, p. 196]). H then refers back to E, its point being that while different kinds of grain and pulse 13 combine to form a quarter-qab, different kinds of garden-seeds combine to form one twenty-fourth of the volume sown in a bet se' ah. According to this interpretation H

9 A bet se'ah is an area of fifty by fifty amot, or 784 square metres (Feliks, p. 186). MR reasons as follows: One twenty-fourth of the volume sown in a bet se'ah prohibits the sowing of a se'ah (see M. 2:2H+J). According to A a quarter-qab prohibits the sowing of a se'ah. Therefore one twenty-fourth of the volume sown in a bet se'ah equals a quarter-qab and the volume sown in a bet se' ah then equals one se' ah. 10 TK, II, p. 605, on 1 41. 11 Cf. M. Ter. 2:1, M. Shab. 1:3, 10:4, M. Naz. 7:3, M. B.M. 4:11, and M. B.B. 2:3 12 While this interpretation gives an unusual sense to the word "combine," we shall see below that, in the case of J, it is the only possible interpretation of the word. J says that flax combines at a certain measure, and since flax only refers to one kind of seeds, "combines" must have the sense of "prohibits." The word may then have the same meaning here 13 IfF-His read as a unitary text, then, according to this interpretation of H, F-G may be read as glossing E, and not A-B.

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assumes that the garden-seeds prohibit the sowing of a se' ah when they amount to the latter measure. In any event, both of the above interpretations of H agree that garden-seeds prohibit the sowing of a se' ah when they amount to one twenty-fourth of the volume (of garden-seeds) sown in a bet se'ah. We must now determine why the law of A-B does not apply to gardenseeds. The reason for this, in my view, is as follows. A apparently assumes that every kind of seed in the se' ah is sown at the same rate. It is only under this condition that each kind's proportion of the total volume equals the proportion of area which it will cover. A can then say that a quarter-qab of seeds prohibits the sowing of a se'ah. For a quarter-qab (= one twenty-fourth of a se'ah) of seeds will cover one twenty-fourth of the area sown, and A apparently determines that this sowing will result in the appearance of diverse-kinds (cf. Maim., Code. Diverse-Kinds 2:7). Now garden-seeds are smaller than grain or pulse (all commentaries) and so are sown at a lower rate (i.e., less volume per area). If garden-seeds are mixed with grain or pulse, their proportion of the total volume will not correspond to the proportion of area which they will cover. For example, a quarter-qab of garden-seeds will cover more than one twenty-fourth of the area sown. The law of A then cannot be applied in this case, for that law does not consider seeds with different rates of sowing. The law of H, however, does take the garden-seeds' rate of sowing into account. As we have already seen, H says that the measure in which garden-seeds prohibit the sowing of a se' ah is one twenty-fourth of the volume sown in a bet se' ah. In other words, a se' ah of grain or pulse may not be sown when there are enough garden-seeds in it to cover one twenty-fourth of the area sown by the se' ah, for then the garden-seeds will produce the appearance of diverse-kinds (as in A). Since the rate of sowing for garden-seeds is less than that for grain or pulse, the amount described in H is less than a quarter-qab. 14 H then states that the principle of A (that the secondary seeds may not cover one twenty-fourth of the area sown) also applies to garden-seeds, only with a different measure.

14 Y. cites a baraita which says that garden-seeds are sown at the rate of one or l/2 qabs per bet se'ah. Garden-seeds would then prohibit the sowing of a se'ah at one twenty-fourth or one-sixteenth of a qab.

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In I, Simeon glosses H with the comment that, while the method of calculation used in H results in a stringent ruling in one case, the same method produces a lenient ruling in another. That is, it takes less than a quarter-qab of garden-seeds to prohibit the sowing of a se' ah of grain or pulse, and this ruling is more stringent than the law of A, which says that it takes a full quarter-qab of seeds to do the same. Simeon then states in J that flax, like garden-seeds, combines (i.e., prohibits) at one twenty-fourth of the volume sown in a bet se'ah. Now although the law for flax is the same as that for garden-seeds, the two kinds of seeds prohibit the sowing of a se' ah in different amounts. F1ax-seeds, although they are the same size as garden-seeds, are sown closer together because their plants do not spread out. 15 Therefore flax-seeds are sown at a rate which is not only higher than that of garden-seeds, but higher than that of grain and pulse as well. 16 Consequently, it takes more than a quarter-qab of flax-seed to prohibit the sowing of a se' ah. The principle of A, when applied to flax, thus produces a lenient ruling. A. [Concerning] every se'ah [if one kind if seeds] which contains a quarter[-qab] [Erfurt, first printed ed. add: of seeds] if another kind (mmyn 'h_r, first printed ed.: of one kind [mmyn 'hd])-he shall lessen [the quantiry if seeds if the other kinds, so that those seeds form less than a quarter-qab} [= M. 2:1A]. B. Under what circumstances? C. With seeds [lit.: things] which [are sown at the rate of) three or (w)

four qabs per bet se'ah [first printed ed.: per se'ah]. D. But (b'mt) [Erfurt adds: they said] garden-seeds combine [to form an amount szifficient to prohibit the sowing if the se' ah when thf!Y total] one twenryjOurth if [the volume) which [is sown] according to its own kind (bnwpl lmynw) [= M. 2:2H] E. [And this amount prohibits the sowing of the se'ah] whether it [i.e., the garden-seeds] fell into other [kinds of seeds] or other [kinds of seeds] fell into it. T. Kil. 1: 16a (p. 206, ll. 40-43)

Feliks, Mixed Sowing, p. 197, on 1. 31. C£ also TYY. According to Y. flax is sown at three times the rate of wheat, so that its rate is presumably three se'ahs per bet se'ah (c£ also Bert.). Flax then prohibits the sowing of a se'ah at three-quarters of a qab. Following T. Kil. 1:16a, though, Feliks (Mixed Sowing, p. 201) points out that wheat may have been sown at three or four qabs per bet se'ah, and that it may have prohibited the sowing of a se' ah at three-eighths or one-half of a qab. Either way, though, it takes more than a quarter-qab of flax-seeds to prohibit the sowing of a se' ah. 15

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T. cites and glosses M. 2:1-2. A cites M. 2: lA, and B-e states that the law of M. applies to seeds which are sown at the rate of three or four qabs per bet se,ah. T. then qualifies M. 1: 1a in a way different from the way in which M. explains itself. While M. 2:2F-G states that M. 2: lA concerns particular kinds of seeds (grain or pulse), T. says that the law applies to seeds sown at particular ratesY D cites M. 2:2H, but the two statements differ in that the latter ends with the phrase bnwpllbyt lh ("of [the volume] which falls [i.e., is sown] in a bet sl ah"), while the former concludes with bnwpl lmynw. According to Feliks bnwpl lmynw means "according to the measure in which they are accustomed to sow the given kind," 18 so that both phrases refer to the rate at which garden-seeds are sown. 19 E then comments that the same measure (one twenty-fourth of the volume sown in a bet se,ah) prohibits the sowing of a se> ah both where the garden-seeds are mixed with a larger volume of seeds of other kinds, and where other kinds of seeds are mixed with a larger volume of garden-seeds. E clarifies M. 2:2H, which says only that the law applies to garden-seeds, but does not describe the composition of the relevant mixtures.

2:3 A. [If] his field was sown [with] wheat, and he decided to sow it [with] barley, B. he shall wait until [the wheat] sprouts radicles ('d ftti:J'; L· .fyt!J'), 20 C. and overturn [the soil], and afterwards sow [the barley]. D. If [the wheat] has [already] sprouted [aboveground 21 ],

17 Alternatively, Lieberman (TK, II, p. 605, on 1. 41), following Y., understands T. as extending the law of M. 2: lA to apply to smaller seeds of pulse which are sown at relatively low rates (three or four qabs per bet se' ah as opposed to a st! ah per bet se'ah). T. then says that a quarter-qab of seeds which are sown at three or four qabs per bet st!ah also prohibits the sowing of a se'ah. This is so even though in this case a quarter-qab is one-twelfth of the volume sown in a bet se' ah, and not one twenty-fourth (cf. M. 2:2H). That is, the law of M. 2: lA applies to these seeds, even though this means that it takes double the usual volume to prohibit the sowing of a st! ah. 18 Mixed Sowing, p. 196, on I. 22. 19 Alternatively, Lieberman (TK, II, p. 605, on I. 42) understands bnwpl lmynw in the sense of bnwpl bmynw ("that which falls in its own kind"). He therefore says that D describes the case of garden-seeds which are mixed with another kind of seeds "of the same family," i.e., seeds which are sown at the same rate. 20 Rosh, TYY, and Feliks (Mixed Sowing, p. 202, on I. 2) explain that ttly' is related to twl't ("worm"), for the radicles resemble small worms. 21 Following Feliks, ibid., p. 202 on I. 3.

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E. He should not say, "I shall sow [the barley) and afterwards overturn

[the soil];" F. rather, he overturns [the soil], and afterwards sows [the barley]. G. How much [of the field) should he plow [up) (h.wrf; K, L, P; h.ryf; Geniza fragment, 22 Ox: hh.ryf ["How much should the plowing be?"]) H. [He should make furrows) like the furrows [= omitted by N] [plowed after 2 ~ a rainfall (ktlmy hrbfh; C, Cn, Mn, V: btlmy). I. Abba Saul says, "[He should plow enough) so that he shall not leave [alt. trans.: so that there will not be left] [unplowed the area which is sown by] a quarter [-qab of grain] in a bet se'ah." M. Kil 2:3 M. Kil. 2:3-4 continues the discussion of sowing diverse-kinds. While M. 1:9E-2:2, however, concerns sowing seeds of diverse-kinds together, M. 2:3-4 deals with sowing one kind of seeds in a field which has already been sown with another kind. In M. 2:3, the owner wishes to sow one kind of grain in a field already sown with a different kind. M. 2:4 then has the owner wishing either to plant vines in a field of vegetables or grain, or to sow grain or vegetables in a field already planted with vines. M. 2:3-4 is probably a unitary composition, for the main protases of both M. 2:3 and M. 2:4 (M. 2:3A, M. 2:4A+D) are constructed in a similar way (if his field + passive participle + and he decided + infinitive) and several of the apodoses differ only in their choice of verbs (M. 2:3E-F, M. 2:4B-c + E-F: "He shall not say, 'I shall do X and afterwards do Y;' rather, he does Y and afterwards does X"). We shall discuss M. 2:3 and M. 2:4 in turn. M. 2:3 presents two cases, A-C and D-F, which, when supplied with "if," are in declarative sentences. D-F depends on A. G-I then has a dispute between an anonymous opinion and Abba Saul on a secondary ISSUe.

A presents the case of one who wishes to sow barley in a field already sown with wheat. B-C states that, before one may sow the barley, he must first wait for the wheat to sprout radicles (i.e., small roots), and then he must overturn the soil. Following Feliks, we may explain the law of B-C as follows. The point of M. is that in order to avoid sowing diverse-kinds, one must destroy the wheat before sowing the barley. 24

See Zachs, I, p. 231, on 1. 11. Following Sens, Bert., TYY, and Feliks, Mixed Sowing, p. 202, on 1. 5. Alternatively, Maim., Comm. and MS maintain that the furrows are dug before the rainfall. 24 It is clear that one may not sow the barley with the intention of later destroying the wheat. For in that case one would be sowing the barley without having performed 22

23

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Now one can only destroy the wheat if he overturns the soil after the wheat sprouts radicles. For if he were to overturn the soil before the wheat sprouted radicles, the seed would simply begin to grow wherever it came to rest. Once the radicles sprout, however, the seeds are attached to the soil and are nourished by it. Therefore when the soil is overturned, the seeds are cut off from their source of nourishment and consequendy die. 25 By overturning the soil after the radicles sprout, one destroys the previously-sown wheat, and one may sow the barley without being liable for sowing diverse-kinds. 26 D-F differs from A-C only in that now the wheat has already sprouted aboveground. E-F states that one may not say that he will sow the barley before overturning the soil, but he must still overturn the soil first, as in A-C. According to TYT one may reason that since the wheat is now visible, he will be able to destroy all of it at any time. He may then wish to sow the barley first, and overturn the soil later when he covers the grains of barley. Therefore the point of M. is that even when one may be certain that he can destroy all of the wheat, he must still overturn the soil before sowing. Otherwise he would actually be sowing barley in a wheat field, and so would be liable for sowing diverse-kinds. G asks how much of the field must be plowed up, and so introduces a secondary issue into the pericope. H presents a dispute in response to G. H states that when one plows up his field, he must make furrows any act to indicate this intention. He thus would actually be sowing diverse-kinds (c£ Feliks, Mixed Sowing, p. 206). 25 We may compare M. to Pliny's description of the method of "plowing in" (Historia Naturalis, 18.49.182-183): We will not omit one additional method of ploughing that has been devised in Italy north of the Po owing to damage caused by war. When the Salussi were devastating the farms lying below the Alps they made an attempt to destroy the crops of panic and millet that were just appearing above the ground: but after Nature proved contemptuous of their efforts, they ploughed in the crops: these however came up in multiplied abundance, and thus taught us the practice of ploughing in-artrare as it is now called, that as I believe being the form at that time in use of the word aratrare. This is done either when the stem is beginning to grow or when it has already shot up as far as the second or third set of leaves. Nor will be withheld a recent instance that was ascertained two years ago in Trier country: the crops having been nipped by an extremely cold winter, in March they actually sowed the fields again, and had a very bounteous harvest (trans. H. Rackham, Loeb ed., V, pp. 303-305). In the first case which he presents, Pliny clear states that the crops which were plowed in came back up again. It appears, then, that Pliny disagrees with M.'s presupposition that a seed (or a plant, as in D-F) is destroyed by plowing in. 26 Feliks, Mixed Sowing, pp. 204-206.

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like those which are made after a rainfall. These particular furrows are wide and deep, for they are made to hold rain water. More importantly, these furrows do not lie right next to each other. Between every two furrows there is an area of unplowed land, upon which dirt is piled to prevent erosion. 27 The point of H is that when one plows his field, he need not make the furrows right next to one another, even though the wheat will remain in the unplowed areas and may still grow (cf. Maim., Code. Diverse-Kinds 2:13). Y. explains that by sowing in this manner one indicates that he does not want the wheat which he had previously sown in the field, and so he need not plow up the entire field. 28 In I Abba Saul says that one must plow up enough of the field so that less than one twenty-fourth of the area sown by a quarter-qab remains unplowed in a bet se'ah. If we assume that grain is sown at the rate of a se' ah per bet se' ah (cf. M. 2: 1-2), then Abba Saul says that one may not leave one twenty-fourth or more of a bet se'ah unplowed. 29 Abba Saul apparently reasons that if the previously-sown wheat were to grow in a one twenty-fourth of a bet se' ah, the field would appear to be sown with diverse-kinds (as in M. 2:1-2). Abba Saul differs with H in that he requires a fixed proportion of the land to be plowed, while H presumably requires only that the furrows cover most of the land. It appears, though, that H and I are not really in dispute at all, for their answers to G are phrased in entirely different terms. H speaks of a type of furrow, while Abba Saul discusses a proportion of land. It is likely, therefore, that H and I are two autonomous statements which have been redacted together to form a dispute (see T. below). F. [.lfl his field was sown [with] wheat, and he decided to sow it [with] barley [= M. 2:3A], G. he shall not sow [the barley] until he overturns [the soil; HD: the wheat -grains]. H. [If] he did not overturn (the soil; HD: the wheat-grains], I. he shall wait until [the wheat} sprouts radicles [= M. 2:3B].

Ibid., pp. 209-210. Ibid., p. 210, adds that the opinion of H assumes that the field will be plowed up again later, when the barley is covered. Therefore even the wheat in the unplowed areas will eventually be destroyed, and the entire field will be free of diverse-kinds. 29 Sens points out that Abba Saul may be understood in two different ways. I means either that one may not leave unplowed a continuous area the size of one twentyfourth of a bet se' ah, or that the sum of all the unplowed areas in the field may not total one twenty-fourth of a bet se' ah. 27

28

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J. K.

L. M.

N.

0.

P.

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How long [does it take] until ('d kmh) it [i.e., the wheat] sprouts radicles (mtft; Y.: m::;r'f0)? [The wheat does not sprout radicles] until it has stayed (snt, first printed ed.: ysnh) in the place [Y.: in the earth] for three days [Erfurt: [Not] until three days]; [that is, when the wheat is sown] in a moist place (mqwm h!Jnh), but not in a dry place (mqwm hgryd); for (s) part of the day [is considered] like a whole [day] [i.e., one may assume that the wheat has already sprouted radicles by the third day itself]. T. Kil l: l6b (p. 206, ll. 43-46) (J-M: Y. Kil. 2:3 (27d); L-M: T.Men. 10:31) They do not require him to plow a fine plowing (h.rys dq) [i.e., to make narrow furrows], but rather ('/') he plows [= omitted by first printed ed.] a coarse plowing31 (h.rys gs) [i.e., he makes wide furrows] [Erfurt: but rather a coarse (plowing)]like [the plowing of] the furrows [after] a rainfall [Y.: They do not require (him) to plow finely (lhywt h.wrs dq), only (to make furrows) like the furrows (plowed after) a rainfall] . Rabban Simeon b. Gamaliel says, "[The appearance of the furrows which are plowed after a rainfall] was called 'the horse's tail[-end],' [for] the end [of the mound] of dirt this [furrow] touches the [mound of] dirt of that [i.e., the next] [furrow] [First printed ed.: the end (of the mound) of dirt touches the (mound of) dirt of that (furrow); Y.: so that the end (of the mound) of dirt of this (furrow) touches that (furrow), and the end (of the mound) of dirt of that (furrow) touches this (furrow)]. !f [the wheat] has [alreaqy] sprouted [aboveground! [= M. 2:3D], and he brought an animal down into [= omitted by Erfurt] [the field], and [the animal] plucked out (w!Jqttw; Erfurt: w!Jqtth; Y.: wqyrtmth) [the wheat], lo, this is permitted, [i.e., one is then allowed to sow without overturning the soil]. T. Kil l: 17 (pp. 206-207' ll. 46-49) (Y. Kil 2:3 (27d))

T. Kil. 1:16b-17 concerns issues similar to those raised by M. 2:3. We shall postpone a consideration of T.'s relationship to M. until after we have discussed each section of T. T. consists of four subunits, F-G, presenting the case of one who wishes to sow barley in a field already

30 According to GRA and Lieberman (TK, II, p. 606, on I. 44) Y.'s reading is an error. 31 So Reuben Alcalay, The Complete Hebrew-English Dictionary (Tel Aviv: Massadah, 1965), p. 374, s.v. hryf gs.

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sown with wheat, J-M and N-0, which discuss secondary issues, and P, which, reverting to A-D, deals with a case in which the wheat has already grown aboveground. F-1 consists of two cases, F-G and H-1, with the former citing and glossing M. 2:3A and the latter citing and glossing M. 2:3B. According to T., therefore, M. 2:3B supplies the apodosis not to M. 2:3A, but to a different case. F-G states that if one wishes to sow barley in a field already sown with wheat, he first overturns the soil and then sows. It is only if he did not overturn the soil, and the wheat has (presumably) started to grow, that he must wait for the seeds to sprout radicles, overtum them, and then sow the barley (H-1). This interpretation ofT. is difficult, however, for it is not evident how overturning the wheat before the radicles sprout would in any way destroy it. Furthermore, if the overturning of the soil is supposed to be effective even before the radicles sprout, why should one wait for them to sprout at all? It is not at all clear how T. understands the procedure discussed in M. Since the above interpretation, which follows the plain sense of the text, presents certain difficulties, we must tum to a different explanation of the pericope. We shall here offer the views of HD. According to the latter B does not refer to the overturning of soil, for such an action is effective only when the wheat has already sprouted radicles. Rather, T. means that one overturns (i.e., shakes) the seeds themselves until they are destroyed and can no longer grow. 32 It is only once the wheat is destroyed that one is allowed to sow the barley. H-I then presents the law of M. 2:3B. If one did not overturn the seeds he waits for the wheat to sprout radicles, overturns the soil, and sows. According to this interpretation T. supplements M. by presenting a case in which one may sow the barley without waiting for the radicles to grow. J-M refers to D, and concerns how long it takes for wheat to sprout radicles. J states the question, K responds, and L-M glosses K. We note that H begins with "for" (s), which makes no sense in this context. Lieberman33 points out that L-M also appears in T. Men. l 0:31, where s is appropriate. Therefore L-M may be primary to T. Men. J-K states that it takes three days for wheat to sprout radicles. This statement is botanically sound, for wheat begins to germinate within a three-day period, and the radicles are the first parts to emerge from

32 Alternatively, T. may mean that one plows the seeds deeper into the soil, so that they cannot grow under any circumstances. 33 TK, II, p. 606, on ll. 45-46.

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the seed. 34 L adds that this is true only where the seed is sown in a moist place, for in a dry place it presumably takes longer. L's point stands to reason, for the seed must imbibe water before it begins to germinate. 35 Therefore a seed sprouts radicles faster if it is sown in wet ground. 36 M introduces a separate issue, stating that part of the day is considered like a whole day. In this context, the point of M is that one may assume that the wheat sprouts radicles by the third day itself, and therefore, one may sow the barley on that very day. N~O discusses the method of plowing which is used in overturning the soil. I states that one does not have to plow finely when overturning the soil, for one may make a coarse plowing like that which is plowed after a rainfall. This means that one need not carefully make smooth narrow furrows throughout the field. Rather, one may plow quickly and make wide furrows even though he will not overturn all of the soil in the field. In 0, Simeon b. Gamaliel glosses this rule, saying that the appearance of the furrows described in N was called "the horse's tail[-end]," for one furrow's mound of dirt touched that of the next furrow. That is, the two mounds of dirt, when viewed in crosssection, resemble the backside of a horse. We shall now compare T. N with M. 2:3G~I: T 1:17N

M. 2:3G-I 1. How much [of the field] should he plow [up]? 2. [He should make furrows] like the furrows [plowed after] a rainfall (ktlmy hrbfh).

3. Abba Saul says, "[He shall plow enough] so that he does not leave [unplowed the area which is sown by] a quarter [-qab] of grain] m a bet se'ah.

1. 2. They do not require him to plow a fine plowing, but rather he plows a coarse plowing like [the plowing of] the furrows [after] a rainfall (ktlmy hrbfh). 3.

34 Cf.John Percival, The Wheat Plant: A Monograph (London: Duckworth & Co., 1921), p. 24: "A normally ripened wheat grain, sown an inch or an inch and a half deep in good soil, early in September, begins to germinate in two or three days, the coleoptile [i.e., the plumule-sheath] and first leaf appearing above ground in about two days." Percival goes on to say that the first part to emerge from the seed when it bursts is the coleorhiza or root-sheath, which contains several of the radicles (see also p. 14). 35 Hartmann and Kester, Plant Propagation: Principles and Practices, p. 118. 36 Cf. n. 34 above and Feliks, Agriculture, pp. 169-170.

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M. and T. both say in (2) that one plows furrows like those which are plowed after a rainfall, but each places this law in a different context. M. presents the law as concerning how much of a field one must plow up, while T. mentions it in reference to methods of plowing. It is clear that T. has the law in the more appropriate context, for the phrase ktlmy hrby'h describes a type of furrow, and does not deal with an amount of land (as, for example, (3) does). T. therefore clarifies M., for it explains the type of plowing to which ktlmy hrby'h refers. P cites M. 2:3D, and concerns a case in which the wheat has already sprouted aboveground. P states that if one brings an animal into his field to pluck out the wheat, he may afterwards sow the barley. The point of P is that by bringing an animal into the field, one shows that he does not want the wheat which grows there. 37 Therefore one may afterwards sow the barley without being liable for sowing diverse-kinds. 38 Let us now review the relationship ofT. to M. F cites M. 2:3A (the protasis of the case), which G-H then supplements. I cites M. 2:3B and depends on M. 2:3C, for the citation of B alone is meaningless. N clarifies M. 2:3H (ktlmy hrby'h), and P cites and supplements M. 2:3D. T. thus provides a running commentary to M. while at the same time slightly rearranging the order of its topics, placing the discussion of the furrows (N, M. 2:3H) before that of the wheat growing aboveground

(P, M. 2:3D-F). 2:4

A [If his field] was sown [with vegetables or grain] and he decided to plant it [with vines 39], B. he shall not say, "I shall plant and afterwards overturn [the soil];" C. rather, he overturns [the soil] and afterwards plants. D. [If his field] was planted [with vines] and he decided to sow it [with vegetables or grain], E. he shall not say, "I shall sow and afterwards uproot [the vines]; F. rather, he uproots [the vines] and afterwards sows.

37

C£ Lieberman, TK, II, p. 606, on II. 48-49, and Feliks, Mixed Sowing, p. 203 on

I. II.

38 Feliks (p. 207) points out that K allows one to sow barley after bringing the animal into the field, even though the animal will not pull the wheat out by its roots. According to Feliks T. assumes that the wheat will be uprooted anyway when the barley is covered, and the purpose of bringing the animal into the field is only to show that one does not want the wheat 39 Following most commentaries. See our discussion below.

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G. If he wanted (rs_h; K: rws_h) [however, to sow first (PM)], he cuts (gwmm; K: gwms; Mn: gyms) [the vines] until they are less than a handbreadth [high], and sows, and afterwards uproots [the vines]. M. Kil. 2:4

M. Kil. 2:4 concerns the planting of a field which is already sown and the sowing of a field which is already planted. M. may be divided into three parts, A-C, D-F, and G. A-C and D-F present two cases in perfectly balanced declarative sentences. The two protases (A and D) are identical except for the reversal of nt' and zr'. The apodoses both follow the same pattern (as given above), so that B-C balances E-F. Furthermore, each apodosis consists of two clauses which balance each other. The second clause of each apodosis (C and F) simply reverses the verb-order of the first (B and E). G glosses D-F and presents an additional case in a simple declarative sentence. A-C states that if one wishes to plant a field which is already sown, he first overturns the soil and then plants. The point of A-C is that one first overturns the soil and thereby destroys the seeds which are already in the ground, 40 and then plants without being liable for planting diverse-kinds (as in M. 2:3). M. then implies that one may not both plant and sow in the same field. Now M. is not clear as to what is being planted in this case. While "sowing" (zry'h) may be understood to refer to vegetables or grain, "planting" (nry'h) may refer to either trees or grapevines. If M. refers to the planting of trees, then M. opposes T. l: 15C, which says that one is permitted to sow tree-seeds together with other kinds of seeds. It is perhaps more probable, therefore, that M. refers to the planting of grapevines (most commentaries), as Scripture prohibits the sowing of other kinds of seeds in a vineyard (Dt. 22:9). We have interpolated into our translation accordingly. In D-F, the circumstances of A-c are reversed, so that now one wishes to sow a field which is already planted. E-F states that one first uproots the vines and then sows. The law of D-F is then the same as that of A-C, for in both cases one must remove whatever is already in the soil before adding the new seeds.

4°Feliks (Mixed Sowing, p. 211 on I. 2) points out that in order to destroy the seeds one must wait for them to sprout radicles before overturning the soil (c£ M. 2:3B). Feliks accordingly maintains that this condition is understood by M. 2:4 even though it is not specifically stated. C£ also TYT.

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G presents an alternative to E-F. If one wishes to sow before uprooting the vines, 41 he must first cut the vines down to a height of less than a handbreadth. He may then sow, for the vines are no longer easily visible, and there is no appearance of sowing diverse-kinds (MR). 42 Later, of course, the vines must be uprooted. 43 A. [if his fieldJ was planted [with vines44] and he decided to sow it [with vegetables or grain], he diminishes (mgry~ Erfort: mgr~· First printed ed.: mgbyh45 ) [the vines] until [thry are] less than a handbreadth [high], sows, and qftenvards uproots [the vines] [= M. 2:4D+G]. C. [If] he diminishes (gwrh andyrq, with each combination having as an apodosis either byt rwb' or fs"h tph_ym. C states that if the two fields contain different types of grain, the smaller, autonomous field must measure a bet rova' in area. D, on the other hand, says that if the two fields are sown with different kinds of vegetables, then the smaller field need measure only six handbreadths square. According to E if one field is sown with grain and the other contains vegetables, the smaller field (regardless of which type of crop it contains) must measure a bet rova'. In F, Eliezer (or Eleazar) disagrees with E(4), saying that if the smaller field contains vegetables and the larger one is sown with grain, then the former need measure only six handbreadths square. According to Eliezer, then, a smaller, autonomous field of grain always requires the area of a bet rova' while a smaller field of vegetables must always be six handbreadths square, regardless of what the larger field contains. D. (1) A private road, (2) or a public road, (3) or a fence which is ten handbreadths high, does not count within the measure of the [bet] rova'. E. [A fence which is] lower than ten handbreadths counts within the measure of the bet rova' [Erfurt: The private road, or the public road, or the fence which is nearly (srnwk) ten handbreadths high, counts within the measure of the bet rova'. But the fence which is higher than ten (handbreadths) does not count in the measure of the bet rova'; first printed ed.: The private road, or the public road, or the fence which is lower than ten handbreadths, counts within the measure of the bet rova'. But (the fence) which is higher than ten handbreadths does not count within the measure of the bet rova']. F. [Erfurt adds: And] what (krnh; lit.: how much) is the measure of a bet rova'? G. Ten-and-one-half arnot by ten-and-one-half arnot, squared [Erfurt: Tenand-one-half arnot squared]. H. R. Yosah [Erfurt, first printed ed.: Yose] says, "[An area may be considered a bet rova'] even ('pylw) [if] its length is about twice its width." T. Kil 2:6b (pp. 209-210, 11. 25-29) (H: M. Erub. 2:5)

T. Kil. 2:6b is divided into two parts, D~E and F~G. D~E discusses areas which either are or are not counted as part of a bet rova', and so comments on M. 2:10A~B. F-H deals with the dimension of a bet rova', and so comments on either T. 2:6D~E, M. 2:9 or M. 2:10, all of which concern an area of that size.

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D-E distinguishes between the private road, the public road, 137 and the fence which is ten handbreadths high, on the one hand, and the fence which is lower than ten handbreadths, on the other. A similar distinction is drawn by M. 4:7, which rules that the two kinds of road and the fence which is lower than ten handbreadths do not constitute valid dividers of diverse-kinds, while the fence which is higher than ten handbreadths does form a valid divider. It appears, then, that our reading of D-E is difficult, for it groups the two kinds of roads together with the higher fence, and implies that each of the two roads forms an autonomous domain within the field in which it lies. According to M. 4:7, however, the roads do not serve to separate two kinds from one another, and so cannot be considered as being separate from the rest of the field. It is likely, therefore, that D(3) and the apodosis of D should be reversed with E (as in the first printed ed.), 138 so that T. rules that the two roads, 139 and the lower fence, do not count within the measure of bet rova'. The point of D-E, then, is that those areas which do not form domains unto themselves are counted in the bet rova', since they are regarded as part of the same field, while those which do constitute a separate domain do not form part of a bet rova'. T. thus qualifies M. 2: lOA, which states that everything within a bet rova' is counted as part of the latter. F-G defines a bet rova' as an area which measures ten-and-one-half by ten-and-one-half arnot. In H Y ose says that a bet rova' need not be a square, for he maintains that its length may equal even twice its width. Yose's saying, however, may not refer to a bet rova' at all. The identical saying appears in a different and more appropriate context in M. Erub. 2:5, so that H is probably not original to the context of

T.

Kil.14o

137 A public road clearly cannot be located in a bet rovafld] a row of chate melons, and a row of gourds, and a row of watermelons, and a row of musk melons, and a row of cowpeas~ B. [Erfurt adds: and he who; GRN' adds: and one who (w,fld) allows a single stalk [= omitted by Erfurt) [of any of these kinds) to grow [for the sake of its] seed [besides a row of the same kind (HD)), C. [GRA adds: he must allow the stalk a space measuring a bet rova1 and [= omitted by Erfurt; GRA: or) he must make [between the row

TZ, p. 212, on I. 55, and TK, II, p. 618, on 1. 55. According to GRA's glosses, which are printed in the back of the Romm ed. of the Babylonian Talmud, GRA reads here simply "one who." "And" (w), however, is cited as part of+ GRA's gloss by MB and Lieberman (TZ, p. 212, on I. 56, and TK, II, p. 618, on 11. 56-57). 70

71

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and the stalk] a partition ten handbreadths high and [with] its width [measuring] four handbreadths. T. Kil 2:14 (p. 212, 11. 55-57) (B-G: Y. Kil 3:6

(29a)Y~

T. Kil. 2:14 supplements M. 3:7]-K, for both pericopae concern the sowing of seed near trailing plants. A-c, with the order of A-B reversed, forms a declarative sentence. According to A-C one who, for the sake of its seed, allows a single stalk of any kind of trailing plant to grow beside a row of the same kind (HD), must erect a partition between them. 73 The point ofT. is that even if the plants adjoining one another are of the same kind, and even if only a single stalk adjoins the row, that single stalk is considered diverse-kinds with the plants in the row, if the former is planted for its seed while the latter are planted for their greens. T. thus supplements in two ways Ishmael's saying in M. 3:7]-K, which states that one may not bring seed into an area already containing three gourds. First, T. rules concerning all kinds of trailing plants and not only gourds, and T. concerns rows rather than individual plants. T. may then intend to link M. 3:7]-K with M. 3:4, for the latter deals with rows of the same kinds of trailing plants as those mentioned in T. 74 Second, T. interprets "seed" (zr') to mean not merely anything which is sown (as we have interpreted zr' to mean in the context of M. 3:7]-K)/5 but specifically that which is sown for the sake of its seed (as in M. 3:2). 76 With this interpretation of "seed," T. effectively contradicts the pointof Ishmael's saying. Ishmael presumably reasons that no seed may be introduced into a field planted with three gourds because the latter could spread out over the newly-sown plants and so produce the appearance of diverse-kinds. The point ofT., on the other hand, is that the purpose for which the plants are sown deterY. reads as follows: B. One who allows single moist stalks to grow [for the sake of their] seed, C. must clear [a space) for them [measuring] a bet rova', or make for them a partition ten handbreadths high. 73 Cf. M. 2:8 for the dimension of the partition. 74 If it is the case that T. links M. 3:7J-K to M. 3:4, then the link is only formal (i.e., the two pericopae are similarly formulated) and not substantive. M. 3:4 concerns planting rows of different kinds together, while the point of T. is that its law applies to any of the kinds (individually). 75 C£ M. 3:6H, where sages use ;;;r' in a general sense to refer to that which is sown between the rows of gourds 76 C£ Albeck's comment on M. 3:7]-K, where he interprets Ishmael's saying to concern sowing grain in a field of gourds. Albeck may follow T. in interpreting ;;;{ to mean that which is sown for the sake of its seed, i.e. (in many cases), grain. 72

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mines whether or not they are considered diverse-kinds with one another, regardless of whether or not there is an appearance of diverse-kinds. 77 A A gentile who grafted a peach [bud] onto a quince [tree] ('wbf; Erfurt: 'wgs ["pear"]) [Y.: (Concerning) a gentile who grafted (the bud of) a nut (tree) onto a peach (tree)]B. even though he [first printed ed., Y. add: an Israelite; Lieberman78 comments: the gentile] is not [himself] permitted to do so [i.e., to perform such a graft], he [i.e., the Israelite] takes a shoot [= omitted by Erfurt and first printed ed.] from it and [Y. adds: goes and] plants it [Erfurt, first printed ed. add: again] in another place. D. [If a gentile] grafted a spinach-beet onto an amaranth (yrbwz; first printed ed.: yrbh; Y. drkwn or drbwn (PM) [= T. 1: 11 B]E. even though the Israelite [= omitted by Erfurt] is not [himself] permitted to do so [i.e., to perform such a graft], F. he [i.e., the Israelite] takes a seed from it and sows it in another place. T. Kil 2:15 (p. 212, 11. 56-60) (Y. Kil 1:4 (27a))

T. Kil. 2:15, together with T. 2:16 (which follows), form an autonomous subunit dealing with the secondary problem of benefiting from diversekinds grown by others. These pericopae thus provide a fitting conclusion to T.'s discussion of diverse-kinds of seeds in Chapters One and Two. T. 2:15 is a unitary pericope composed of two parts, A-C and D-F. A-C concerns the grafting of a tree bud onto a different tree, while D-F deals with grafting a vegetable onto a plant of a different 77 Although it appears that GRA interprets T. as we have explained it (cf. MB), we note that Lieberman may understand GRA differently. Lieberman (TZ p. 212, on I. 55, and TK, II, pp. 6l8f., on ll. 56-57) seems to maintain that GRA, in adding w'fld to B, sees B as part of the protasis, so that the pericope reads as follows: A. All the same are a row of chate melons, and a row of gourds and a row of watermelons, and a row of musk melons and a row of cowpeas, B. [and] one who allows a single stalk [of any of these kinds] to grow for [the sake of their] seedC. [he must allow the stalk a space measuring] a bet rova', or he must make a partition [between one kind and the next] ten handbreadths high and [with] its width [measuring] four handbreadths. According to this reading the point of T. is that whether one plants single stalks or individual rows of trailing plants next to one another, he must separate the different kinds, by either the distance of a bet rova' (following Y.) or a partition. T. then supplements M. 3:4 by saying that individual stalks of different kinds of trailing plants, as well as individual rows, are considered diverse-kinds with one another. This interpretation ofT., however, is difficult, for it does not allow any significance to the fact that the single stalk is planted for the sake of its seed. We therefore maintain that the explanation given above in the text is the more plausible one. 78 TK, II, p. 619, on I. 58.

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kind (following the sequence of M. 1:7). The two sections are well-balanced, for each of the three clauses of A-C is almost identical with each of the corresponding clauses of D-F. A describes the case of a gentile who performed a graft of a peachbud onto a quince tree, a graft which is presumably prohibited on account of diverse-kinds. According to B-D an Israelite may plant a shoot from the hybrid tree, even though he may not perform the graft itself. 79 Similarly, D-F states that an Israelite may sow the seeds of an amaranth which a gentile has hybridized with a spinach-beet, even though again the Israelite is prohibited from performing such a graft (T. l:llB). The point ofT., then, is that one may reproduce a hybrid which results from a graft performed by a gentile (who is presumably not prohibited from grafting diverse-kinds), even though one may not initially produce the hybrid on account of diverse-kinds. A. An Israelite who allowed diverse-kinds to grow in his fieldB. his brothers [= omitted by Erfurt] the priests do not enter it, C. but rather consider it [i.e., the diverse-kinds] as a sign [Lieberman80 following Erfurt and OZ, reads lqywn for b,\)'wn] [indicating] a graveyard. D. They do not produce diverse-kinds with an Israelite [i.e., in the field of an Israelite (Lieberman81 )] [first printed ed.: with a gentile8 2_] [B. A.Z. 63b: They do not hoe ()m £mah. 88 These cities are not considered part of the land of Israel (Lieberman; 89 cf. T. Ah. 18:4), so that one may help a gentile grow diverse-kinds in them. If we now interpret G in the light of H-I, then the point of G is that one may not grow diverse-kinds with a gentile in the land of Israel, for diverse-kinds may not be grown by an Israelite in the Land, regardless of who owns the field in question. 90 J, which is autonomous of the foregoing, reverses the rule of H-I by stating that the law of diverse-kinds applies both inside and outside of the land of Israel. J then agrees with M. Qid. 1:9, which states that all commandments which depend on the land of Israel are not observed outside of it, except for the laws 'orlah and diverse-kinds. 91

86 Lieberman (ibid.) notes that E-F contradicts A-c, for the latter implies that diversekinds which grow in an Israelite's field should not be uprooted. The opposition between A-C and D-F may account for the juxtaposition of the two pericopae, which present entirely separate rules. 87 Alternatively, B. A.Z. 63b has D-F refer to a gentile's field. According to this reading the point of D-F is that one may not hoe diverse-kinds with a gentile, but one may uproot them for him (for pay), even though one then wishes the diverse-kinds to continue growing until he has a chance to uproot them. This reading, however, is less plausible than that given by T., for it is not clear how diverse-kinds become an impropriety (tplh) in the field of a gentile. 88 According to Lieberman (TK, II, p. 621, on I. 64) these two cities are located to the north, on the eastern side of the Jordan River. 89 TZ p. 212, on I. 64. T. Ah. states that "surrounded cities" are exempt from the laws of tithes and the seventh-year, but are not considered as part of the "land of the peoples" for purposes of cleanness. 90 Similarly, Lieberman (TK, II, p. 620, on I. 63) explains that G follows the principle that "a gentile does not acquire possession of real estate in the land of Israel (attributed to Meir, Y. Kil. 7:3)." That it, it is prohibited to grow diverse-kinds with a gentile because the latter does not actually own his field. One who would grow diverse-kinds for a gentile, would, in effect grow them for an Israelite (the true owner of the field), and such an act is prohibited (D). 91 Lieberman (TZ p. 212, on II. 64-65, and TK, II, p. 621, on II. 64-65) following Y. Or!. 1:9 and B. Qid. 39a, says that both M. Qid. 1:9 and T. Kil. 2:16] apply only to diverse-kinds of the vineyard but not to diverse-kinds of seeds. Neither M. Qid. 1:9 nor T. Kil 2:16J, however, offers any support to this interpretation. Cf. also Y. Or!. I :9, where Samuel says that diverse-kinds of seeds are permitted outside of the land of Israel, while Yohanan prohibits them.

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Chapter Four opens M.'s discussion of diverse-kinds of the vineyard. The chapter consists of two large formal units, M. 4:1-3 (with M. 4:4 appended to it) and M. 4:5-9. At the head of each unit stands a pair of Houses-disputes which generates the law of the chapter. The chapter accordingly concerns two major themes. M. 4:1-3Qdeals with sowing seed in a cleared space within or at the edge of a vineyard, while M. 4:5-7 defines a vineyard in terms of the number of vines and rows it must contain. M. 4:8-9 both supplements M. 4:5-6 and returns to the concerns of M. 4:1-3Q with a discussion of sowing seed between rows of vines. In addition, M. 4:3R-U + M. 4:4 form a small subunit dealing with rules pertaining to partitions. Now we might have expected the chapter to begin with its most fundamental rule, the definition of a vineyard (M. 4:5-7), and then to proceed with a discussion of sowing seed between rows of vines (M. 4:8-9, following M. 4:5-7 both formally [opening with hnw1'] and thematically [dealing with rows]) and cleared areas (M. 4:1-3Q). The redactor, however, chose to open the chapter with M. 4: l-3Q, presumably in order to consider, in a logical sequence, the planting of seeds and vines in separate areas (M. 4:1-3Q) and the planting of seeds among vines (M. 4:8-9). The definition of a vineyard in terms of vines and rows thus serves to introduce the latter section. M. 4:1-3 consists of a pair of Houses-disputes followed by a tightly constructed series of glosses in a question-and-answer pattern. In M. 4: 1 the Houses dispute concerning the minimum area which a bald spot or an outer space of a vineyard must have in order to be sown with another kind. The rest of the unit (M. 4: 1G-4:3Q) defines these areas and clarifies the law for each according to the viewpoint of the House of Hillel. M. 4:3R-U + M. 4:4 then present several rules concerning partitions. M. 4:3R-U, following the question-and-answer pattern of M. 4:1-3Q, offers the minimum measurements which a fence or a ditch must have in order to be considered a valid partition, while M. 4:4 discusses partitions which contain gaps. The redactor has apparently appended this subunit to M. 4: l-3Q only because the fence is mentioned in connection with the definition of an outer space (as the area between the fence and the vineyard). The substance of the subunit, however, is

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not related to that of M. 4: 1-3Q, and, in fact, does not specifically discuss issues of diverse-kinds, for it deals simply with rules concerning partitions. M. 4:5-9 constitutes a distinct formal unit in that each of its pericopae begins with the present participle hnwt'. M. 4:5 opens with a Houses-dispute concerning the definition of a vineyard. House of Shammai say that a row of five vines is considered a vineyard, while House of Hillel disagree, maintaining (according to a gloss) that a vineyard consists of two rows. A second Houses-dispute, which discusses the same issue in another context (the sanctification of a vineyard by the sowing of another kind), follows. M. 4:6 and M. 4:7 then carry forward the view of House of Hillel. M. 4:6 discusses how the five vines of M. 4:5 are arranged in the two rows, and M. 4:7 deals with the secondary question of combining two separated rows of vines to form a vineyard. Continuing the discussion of rows of vines and returning to the concerns of M. 4:1-3Q, M. 4:8-9 deals with sowing seeds between rows of vines. M. 4:8 discusses sowing seed between individual rows arranged in sets of two or three. According to M. three rows must be set apart by more space than is necessary to separate two rows, presumably because there is a greater tendency for the appearance of diverse-kinds to develop in the former case. M. 4:9 then concerns sowing seeds between rows of a vineyard. An anonymous opinion maintains that the rule of M. 4:8, which applies to the spacing of three rows, also obtains in the case of a vineyard, while Meir and Simeon disagree, saying that the rows of a vineyard are to be separated according to the rule which applies to two rows. 4:1-3 A. [The] bald spot (qrh.t) of the vineyardB. House of Shammai say, "[It need measure] twenty-four amot [square (following Sens, Bert.)]." C. House of Hillel say, "[It need measure only] sixteen amah [P: amot (throughout)] [square]." D. [The] outer space [so Danby for mh.w~ of the vineyardE. House of Shammai say, "[It need measure] sixteen amah." F. House of Hillel say, "[It need measure only] twelve amah." G. And what is [the] bald spot of the vineyard? H. [Danby: The part of] a vineyard which is bare [so Danby for h.rb] in its middle (m'm{w; Sn: b'm{w). I. If there are not there [i.e., in the bald spot] sixteen amah [square of space], [then] he shall not put seed into it.

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J.

K. L. M. N.

0. P.

Q

R. S.

T. U.

1297

[If) there were there [i.e., in the bald spot) sixteen amah [square of space], [then] they allow it [i.e., the vineyard] its area of tillage and he sows the rest. M. Kil. 4: 1 (B. Erub. 3b, 93a) What is [the) outer space of the vineyard? [The area) between the vineyard and the fence. If there are not there [i.e., in the outer space] twelve amah [of space), [then) he shall not put seed into it. [If) there were there [i.e., in the outer space) twelve amah [of space), [then] they allow it [i.e., the vineyard) its area of tillage and he sows the rest. M. Kil. 4:2 (B. Erub. 3b, 93a) R. Judah says, "This [i.e., the space between the vineyard and the fence) is only [the area of) the fence of the vineyard. "And what is the outer space of the vineyard? "[The area] between two vineyards." What is [considered) a fence? [A fence) which is ten handbreadths high. And [what is considered) a ditch? [A ditch) which is ten [handbreadths) deep and four wide. M. Kil. 4:3

M. Kil. 4:1-3 concerns the mm1mum size which an area in a vineyard must have in order to be sown with another kind (e.g., grain or vegetables). The forms of the unit are highly disciplined. A-C and D-F present two parallel, balanced Houses-disputes, the numbers of which, taken together, occur in descending order according to the sequence a-b-b-e (twenty-four vs. sixteen, sixteen vs. twelve). G-J and K-N then balance one another in respectively glossing A-C and D-F. G-H and K -L both appear in a question-and-answer pattern, while I-J and M-N form nearly identical sets of conditional sentences (differing only in that the former has sixteen while the latter has twelve), with the protases within each set balancing one another (yn fm vs. fryw sm). The apodoses of the sentences in each set, however, do not all correspond to one another, and differ in that the verbs of I and M appear in the imperfect tense, while those of J and N are phrased in present participles (!' yf!y' ::;r' lfm vs. nwtrryn lw 'bwdtw w::;w{ 't hmwtr). 1 In 0-Q Judah glosses

1 We note that the apodosis of the first sentence in each set is phrased in the singular (yqy'), while that of the second opens in the plural (nwtnyn). The second apodosis, however shifts to the singular (zwr'), which suggests that nwtnyn lh 'bwdth may be an idiomatic phrase which always appears in the plural (cf. M. Kil. 3:7, 5:4, 6:1, 6:2, and

6:7).

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and opposes K-L, following in P-Q the question-and-answer pattern of G--H and K-L. R-S, repeating the same pattern, glosses 0, and T-U similarly supplements R-S. In A-c and D-F the Houses dispute concerning the minimum size which areas in and around a vineyard must have in order to be sown with a different kind. These areas must cover a certain amount of space so that the crops sown within them appear to grow in fields unto themselves and therefore do not produce the appearance of diverse-kinds with the vines. A-C concerns the bald spot (qrh.f) of the vineyard, or (according to the gloss at G--H) its bare inner area, while D--F deals with the vineyard's outer space (mh.wl 3), or (according to the gloss at K -L) the area between the vineyard and the fence. I and M then restate the views of House of Hillel (C and F) in a negative way ("If there are not there X amah"), while J and N rephrase the same rule in an affirmative manner ("[If] there are there X amah"). J and N, however, do not simply repeat I and M, for, instead of balancing the latter with the apodosis "he shall put seed into it," J and N have a more complex apodosis, "they allow it its area of tillage and he sows the rest." J and N thus introduce a new consideration into the pericope, the area of tillage, saying that this area must separate the vines and the crops sown in the bald spot or outer space. 4 The reasoning behind the rule appears to be that the vines must have sufficient space to spread out without becoming entangled with the crops. Alternatively, the point of the rule may be that the vines and crops must be separated from one another in order to avoid the appearance of diversekinds. We note that I and M do not relate anything new, and so appear to be necessary only to introduce, respectively, J and N.

2 The term "bald spot of the vineyard" is actually a metaphor, for a bald spot (qr!J.t) literally refers to a bare, hairless area of a head. 3 For various etymologies of m!J.wl, see Maim., Cornrn. (from mfl.l "to leave, abandon"). Sens (from m!J.wl, "dance" i.e., the area of the vineyard set aside for dancing) and Meiri to B. Erub. 93a (cited by Lieberman, TK, II, p. 622, on I. 3) (from !J.lwl, "empty space"). 4 If we follow the commentaries (e.g., Maim., Cornrn., Sens, etc., all following M. 6: I) and assume the area of tillage of a vineyard to be four amot, then in a bald spot either sixteen (House of Shammai; fig. L) or eight (House of Hillel; fig. M) arnot square are sown. Similarly, in an outer space either twelve (House of Shammai; fig. N) or eight (House of Hillel; fig. 0) arnot wide may be sown.

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In 0-Q Judah disagrees with the gloss at L, saying that the area between the vineyard and the fence is not the outer space of the vineyard, but merely the area adjacent to the fence. The outer space, rather,

VINES 4

~,v. Diverse-Kinds 7:9, Sens, and others). According to F-G such an area may be considered a vineyard only if a row within it containing two vines may be aligned opposite a row of three vines. In other words, five vines in the vineyard must be so arranged that two pair of vines stand opposite one another, and the fifth extends outwards. The five vines are thus laid out in the pattern described in M. 4:6, and so form a vineyard, which is extended to include the entire irregularly planted area. H-I then restates the rule of E-G in a negative manner. In J-K Meir opposes H-I (and E-G as well), maintaining that an irregularly planted area is considered a vineyard even if it does not contain two vines aligned opposite three others, for the area has the overall appearance of a vineyard. According to Meir, then, the appearance of an area planted with vines determines its status as a vineyard, regardless of the actual arrangement of the vines. We note that H-I relates nothing new, and so apparently serves only to introduce Meir's statement atJ-K. T. Kil. 3:3b-3:9 forms a sustained commentary to M. 5: l. The following chart shows the relationship of M. to T.:

T.

M.

Issue

T. 3:3b

M. 5:1A-D

T. 3:4

M. 5:1E-I

Distance allowed between vines of a vineyard which lay waste The parts of the vine which must be aligned in order for the vines to be considered to be lined up

5 MR, on the other hand, states that a vineyard need not be composed of two sets of five vines arranged in the pattern of M. 4:6, for one such set by itself is considered a vineyard. He therefore maintains that only five of the ten vines need be arranged in the pattern of M. 4:6, and that on account of these five the entire area is considered a vineyard.

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(cont.) T.

M.

Issue

T. 3:5a

M. 5:1A-D

T. 3:5b

M. 5:1E-I

The circular espalier which is not considered an espalier The alignment of vines in an irregularly planted vineyard

(T. 3:5c T. 3:6

M. 5:2) M. 5:1E-I

T. 3:7-

autonomous

8+9

The odd row in the regularly planted vineyard The status of the slope of the terrace in respect to adjacent fields

T. thus groups together and presents first those pericopae which comment on M., closing with a set of autonomous materials. T. 3:3b-3:6 is well-organized. Except for T. 3:5c, which comments on M. 5:2, and T. 3:4, which appears to be out of place, T. comments on M. 5: lA-D and M. 5: lE-I in sequence. T. 3:3b and T. 3:5a both interpret M. 5: l C, which states that the ten vines of a vineyard which lay waste must be "planted according to the law [pertaining to] them." T. 3:3b explains that this rule deals with the distance that may separate the remaining vines. T. 3:5a presents a counter-example toM. 5:1C, describing the case of a circular espalier, which is not regarded as an espalier even though it is properly planted. T. 3:4, 3:5b, and 3:6 then comment on M. 5: lE-I, which states that five vines of an irregularly planted vineyard may combine (if correctly aligned) to form a vineyard. T. 3:4 discusses the part of the vines that must be aligned in order for the vines to form a vineyard. T. 3:5b cites the rule of M. and presents it in the context of a ma'afeh, while T. 3:6 presents the contrasting case of a properly planted vineyard containing a row that is out of place. T. 3:7-8+9 concerns the relationship of the slope of a terrace to adjacent fields. T. 3:7-8 rules than an individual vine or plant of another kind that is planted on a slope is not considered to be attached to the vineyard or field below. T. 3:9 similarly rules that a slope separates a vineyard on one terrace from a field of another kind on the other. The point ofT. 3:7-8+9 thus is that the slope is considered to be autonomous of the terraces that it joins. A. How much [i.e., how many vines] shall its [i.e., a vineyard's] planting be? B. Three [vines] opposite three [others].

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C. [If] one of the outer [vines] is removed, how much [space] may there be between them [i.e., the remaining five vines]? D. Two [vines which are] opposite two [others may be separated from the latter by a distance measuring] from four amot to eight [amot], E. and the [one extending out like a] tail [may be separated from each pair of vines by a distance measuring] from four amot to eight [amot]. F. [If the] two [vines which are] opposite [the] two [others] were [separated from the latter by a distance measuring] [Erfurt, first printed ed. omit: less than] from four amot to eight [amot], G. and the [one extending out like a] tail [Erfurt adds through H [to "tail"] (Vienna omitting):Oj (is separated from each pair of vines by a distance measuring] less than four amot or more than eight [amot]; H. or [if the] two [vines which are] opposite [the] two [others] were [separated from the latter by a distance measuring] less than [= omitted by first printed ed.] four amot or more than eight [amot], I. and [the one extending out like a] tail [was separated from each pair of vines by a distance measuring] from four [amot] to eight [amot], J. [Erfurt omits:] lo, this is not [considered] a vineyard, K. unless [the] two vines [which are] opposite [the] two [others are separated from the latter by a distance measuring] from four amot to eight [amot] [= Erfurt omits], L. and the (one extending out like a] tail (is separated from each pair of vines by a distance measuring] from four amot to eight [amot]. T. Kil. 3:3b (pp. 213-214, 11. 11-17)

T. Kil. 3:3b comments on M. 5: lA-D, explaining M.'s phrase "planted according to the rule [pertaining to] them" as referring to the distance which may separate the vines of a "lean" vineyard from one another. T. is a unitary pericope composed of two parts, A-E and F-L, with the latter glossing the former. A-B and C-E follow a question-andanswer pattern, with D and E somewhat balancing one another (both ending with the phrase "from four [arnot] to eight [arnot]"). F-L consists of two balanced conditional clauses, F-G and H-I (which balance D-E as well), an apodosis at J, and K-L, which glosses F-J by repeating D-E. We note that F-L forms an apocopated sentence, for the subject of F-I, the individual sets of vines, is not that of J, which concerns the vineyard as a whole. A-B describes a vineyard that contains two opposing rows of three vines each. 7 In C an outer vine is removed, so that the vineyard now 6 Lieberman (TK, II, p. 624, on 11. 14, 15, and 16) explains that the omissions by Vienna Ms. in E-F, by the first printed ed. in F, and by Erfurt Ms. in G-H are all the result of copyist's errors. 7 Alternatively, Lieberman (TK, II, p. 623, on 11. 11-12) follows Maimonides' reading of M. in the light ofT. (Code, Diverse-Kinds 7:8):

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lies waste, with its five remaining vines arranged in the pattern described in M. 4:6. C then asks how much space may separate the vines if they are to form a "lean" vineyard. Following the language of M. 4:6 ("Two [vines] opposite two [others], and one extending out [like a] tail"), D-E states that the rows may be separated from one another and from the fifth vine by a distance covering from four to eight arnot. F-L then simply restates D-E in a negative manner (i.e., the distance may not be less than four or more than eight arnot), perhaps following the pattern of M. 4:6 (rule + two rejected alternatives + repetition of rule). In addition to reading M. 4:6 into M. 5: lA-D (as we have already noted), T. reads two other rules into M. The law ofT. also includes Meir and Simeon's view (M. 4:9) that one may not sow another kind between two rows of vines separated by less than eight arnot, 8 and Simeon's rule (M. 5:2) that the rows of a vineyard must be separated by more than four arnot (cf. also T. 3:5c). T. effectively links these four pericopae of M. (M. 4:6, 4:9, 5:1, and 5:2) together. A. [If) the stem[s) (so Lieberman9 for kwwrt) [of the vines are) aligned and the foliage [of the vines] is not alignedB. lo, this is [considered) a vineyard. C. [If) the foliage [of the vines] is aligned, and the stem[s of the vines are] not alignedD. lo this is not [considered) a vineyard. E. [Erfurt reverses E-G and H-M) 10 [If the stems (MB)] were thin and were not aligned, F. [and then) became thick and became alignedG. lo, this is [considered) a vineyard. H. How does he know if [the stems] were aligned or not?

A vineyard which lay waste-if there are in it [enough vines to enable one] to gather ten vines per an entire bet se' ah, and they are planted [in rows of] two [vines] opposite two [others], and one extending out [like a] tail; or [if] there are in it [enough vines to enable one] to align three [vines] opposite three [others], lo, this is called a "lean" vineyard, and it is prohibited to sow [another kind] in any [part of] it. Lieberman accordingly interprets A-B, which has three vines opposing three others, as referring (along with C-D) to the "lean" vineyard. C, however, appears to describe how the vineyard is laid waste, so that it is more likely that A-B discusses the vineyard in its original shape. 8 T. apparendy reasons here that two rows separated by more than eight arnot do not constitute a vineyard (cf. our discussion of M. 4:8). 9 TZ, p. 214, on I. 17; c£ also TK, II, p. 625, n. 22. 10 Lieberman (TK, II, p. 625, on I. 19) maintains that Erfurt reverses the order of E-G and H-M by mistake.

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I. He stretches a thread to the base of the vines [l)qr hgpnym; Erfurt: 'l gby hgpnym "over the vines")]]. if they [i.e., the vines] all touch the thread [hflwt; Erfurt: k'flt ("if they all touch as one")] [on the same side)K. 1o, this is [considered) a vineyard; L. if one [vine] stands inside (nknst) and the other stands outside (ywlt) [of the thread)M. 1o, this is not [considered) a vineyard. T. Ki1 3:4 (p. 214, ll. 17-22) (A-I: Y. Kil 5: 1 (29d))

T. Kil. 3:4 comments on M. 5:1E-G,ll which states that vines which are irregularly planted form a vineyard only if two of the vines are aligned opposite three others. T. consists of two subunits, A-G, concerning the parts of the vines which must be aligned with one another, and H-M, glossing the foregoing with a discussion of the method of determining whether or not the vines are aligned. A-G is composed of three declarative sentences, A-B, C-D, and E-G. A and C balance one another (kwwrt + nwp vs. nwp + kwwrt), while E-F is internally balanced (dq + l' mkwwn vs. h'bw + mkwwn). All three apodoses (B, D, and G) are fixed (krm vs. )nw krm), and so balance one another as well. H-M consists of a question, H, and an answer, I-M, with the latter forming an apocopated sentence composed of a protasis, I, and a pair of conditional clauses, j-K and L-M (with fixed apodoses at K and M) According to A-D the vines are considered to be aligned with one another if their stems, presumably their principal parts, oppose each other, regardless of whether or not their foliage, a secondary feature, is also lined up. E-G adds that if stems which are not aligned at the outset grow thicker and become aligned, then at that point the vines form a vineyard. Explaining the rule of A-D, H-M describes the manner in which one determines whether or not the vines are aligned. One stretches a thread between the two rows at the base of the vines. If the vines all touch one side of the thread they are considered to be aligned, but if they make contact with the thread on different sides ("inside" and "outside") they clearly are not lined up with one another.

11 Alternatively, Lieberman (TK, II, pp. 624f., on II. 17-18) argues that T. 3:4 precedes T.'s citation of M. 5:1E-G at T. 3:5b, and therefore actually comments on M. 5:1A-D, adding another rule pertaining to the "lean" vineyard. M. 5:1A-D, however, does not explicitly require the vines of a "lean" vineyard to be aligned (as does M. 5:1E-G, although this is required by the interpretation of M. 5:1A-D in the light of M. 4:6), so that we consider it more likely that T. 3:4 comments on M. 5:1E-G.

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A. R. Simeon says, "An espalier [so Lieberman 12 for flrys_ Erfurt: 'rys] which [was] planted according to the rule [pertaining to] it, B. "or [Lieberman 13 suggests instead: but Cl')] which was circular (mwqp; Erfurt: mkwwn ["aligned"]) like that dovecote [which is] round (kSwbk hzh 'gwl), C. "lo, this is [= omitted by Erfurt] not [considered] an espalier." T. Kil 3:5a (p. 214, 11. 22-23)

T. Kil. 3:5a comments on M. 5: lA-D. While M. states that ten vines that are planted according to the rule pertaining to them constitute a "lean" vineyard, T. presents a contrasting case in which vines planted according to the law applying to them do not combine to form a single group. Simeon maintains that trained vines that are properly planted, or properly spaced (Lieberman), 14 do not constitute an espalier if they are arranged in a circle. Simeon apparently reasons that the vines of an espalier must be planted in a straight line (cf. M. 6: 1). A. A vim;yard which is planted in an irregular manner--B. if there are it [vines which are so arranged that one is able] to align (lkwyn) two [vines] opposite [Lieberman, 15 following first printed ed., omits: two] three [= omitted by Erfurt] [others], C. lo, this is [considered] a vinryard. D. And if not [i.e., if two vines ma;y not be aligned opposite three others], E. it is not [considered] a vinryard [= M. 5:1 E-1]. F. [Erfurt omits F-L] zh hyh m'sh w: They came and asked Rabban Gamaliel [concerning the irregularly planted vineyard]. G. And he said to them, "(1) Go and ask Yosah b. Geali [first printed ed.: Gulai], (2) who is excellent 16 and expert (br wbqy) in the rules [pertaining to] the vineyard." H. They went and asked him [concerning the irregularly planted vineyard]. I. He said to them, "lf there are in it [vines which are arranged that one is able] to align (lkwyn) two [vines] opposite three [others], ]. "lo, this is [considered) a vinryard. K. ''And if not [i.e., if two vines ma;y not be aligned opposite three others], L. "it is not [considered] a vinryard [= M. 5: 1F-1]." T. Kil 3:5b (p. 214, 11. 23-27)

TZ, p. 214, on l. 22, and TK, II, p. 625, on l. 22. Ibid. 14 Lieberman (TK, II, p. 624, on l. 22) states that the vines of an espalier may be separated by a distance measuring from four to eight amot. Cf. M. 6:6 (and T. 3:3b). 15 T,Z, p. 214, l. 24. 16 Following Lieberman (Greek in Jewish Palestine [New York: Jewish Theological Seminary, 1942], p. 51 [cited by Lieberman, TK, II, p. 626, n. 25]), who translates br in various contexts as "select." 12 13

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T. Kil. 3:5b comments on M. 5:1E-I. A-E cites M., which F-K then supplements with a precedent introduced by the formula m'fh w. F-L is attached to A-E by the phrase zh hyh, 17 and depends on A-E for its context. The point of F-L is to support the rule of M. 5: lE-I, perhaps in response to the opposing view of Meir at M. 5: 1]-K (HD). In F-G Gamaliel, who was asked concerning the irregularly-planted vineyard, refers the question to Yose b. Geali, whom he considers (according to G(2), perhaps a gloss) to be an expert in the laws of the vineyard. Yose then presents what we have in M. 5:1F-I. T. thus attributes M. to this Yavnean Y ose. A. A vineyard that is planted according to the rule [pertaining to] it~ B. and one row extends from it [i.e., one row is longer than the others]~

C. when he measures [the area of tillage] of the vines, D. he allows the vineyard four arnot and the [extended] row four [GRA and Lieberman 18 (following Erfurt) correct to: six] handbreadths. E. [Erfurt omits E-H] 19 [If the vineyard] was planted according to the rule [pertaining to] it~ F. and the outer vines [i.e., the vines of the outer row] are visible through [the spaces] between [the vines of the other rows]~ G. when he measures [the area of tillage] from within [i.e., between the outer row and the rest of the vineyard], H. he allows the vineyard four arnot and the [outer] row six handbreadths. T. Kil 3:6 (pp. 214-215, 11. 28-33)

T. Kil. 3:6 supplements M. 5:1E-G. While M. discusses the irregularly planted vineyard which contains five vines aligned to form a vineyard, T. presents the reverse case of the regularly planted vineyard which has one row out of place. T. is not directly relevant to M., however, for T. is concerned not with the status of the vines as a vineyard, but rather with the areas of tillage of the vineyard and the odd row (although, as we shall see, the latter issue presupposes the former). T. is a unitary pericope composed of two parts, A-D, concerning the row which extends beyond the vineyard, and E-H, discussing a row the vines of

17 It is not clear whether zh hyh has been appended to the formula m'fh w or is actually part of the formula itself. We claim only that by its very meaning ("this was") the phrase zh hyh serves to join F-K to A-E, regardless of whether or not zh hyh is part of the formula. 18 TZ, p. 215, on l. 30, and TK, II, p. 626, on l. 30. 19 Lieberman (TK, II, p. 626, n. 27) suggests that Erfurt mistakenly omits E-H because both D and H end with similar phrases.

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which are out of phase with the other vines of the vineyard. A-D appears in apocopation, while E-H forms a conditional sentence. 20 The two units somewhat balance one another, for A differs only slightly from E (which depends on it for its meaning), while C-D is virtually identical to G-H (differing only in that G adds the phrase "from within"). A-B describes the case of a properly planted vineyard containing one row that extends further than the others. According to C-D this row is granted its own area of tillage of six handbreadths (= the area of tillage of a single vine [M. 6:1]), while the vineyard is allowed its four arnot. In other words, the extended row is not considered part of the vineyard. In E-H a vineyard that is properly planted contains an outer row that is so arranged that its vines stand opposite the spaces of the vines in the other rows. G-H again rules that the vineyard and the outer row are allowed separate areas of tillage. The gloss "from within" in G, interpreting H to apply to a single area, explains that both areas of tillage are granted in the area between the vineyard and the outer row. 21 The point of T. once more is that the odd row of vines does not belong to the vineyard. T. thus would probably not agree with the rule of M. 5:1E-H. While M. rules that the irregularly planted vines belong to the vineyard formed by the five regularly planted vines, T. maintains that vines that are planted irregularly in respect to a vineyard are not considered part of the vineyard. A A vine that is planted on [the slope of (HD)] a terrace [above a vineyard (Lieberman)F 2B. he [Erfurt, first printed ed.: they] allows it its [own] area of tillage [apart from that of the vineyard]. T. Kil. 3:7 (p. 215, II. 31-32)

20 We note that, except for the presumed "if" in E and with krm understood, E-H may be considered to appear in apocopation as well. 21 Following Y., Lieberman (TK, II, p. 626, on ll. 30-31) reasonably assumes that the outer row and the vineyard are separated by more than fom: arnot (and less than eight), for otherwise the two areas of tillage would overlap. 22 TZ, p. 215, on l. 32, and TK, II, pp. 626-627, on ll. 31-32, 32. Lieberman further maintains that T. 3:7-8 continues the discussion of T. 3:6 concerning the row which is not considered part of the vineyard and therefore is allowed its own area of tillage. T. 3:7-8, however, appears to introduce a new issue dealing specifically with the slope of a terrace, and does not seem to concern the set of problems involved with the "vineyard which is planted according to the rule [pertaining to] it." We therefore maintain that T. 3:7-9 forms an autonomous subunit concerning the problem of the slope of the terrace.

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C. Seeds or vegetables that are planted on [the slope of] a terrace [above a field of the same kind (Lieberman)]D. he [Erfurt, first printed ed.: they] allows them their [own) area of tillage [apart from that of the field). T. Kil. 3: 8 (p. 215, 11. 32-33)

T. Kil. 3:7-8, together with T. 3:9 (which immediately follows), form an autonomous subunit concerning the relationship of the slope of a terrace to adjacent fields. T. 3:7-8 consists of two balanced, apocopated sentences, A-B and C-D, which differ only in that A-B has gpn while C-D reads zr'ym wyrqwt. A-B describes the case of a vine that is planted on a slope above a vineyard (Lieberman). A-B rules that this vine is considered to be planted in an autonomous area, and so is allowed its own area of tillage. C-D similarly states that seeds or vegetables planted on a slope above a field of the same kind are not regarded as belonging to the field, and therefore are allowed their own area of tillage. The point ofT., then, is that the slope of a terrace is not considered to be connected to the fields adjoining it, but rather forms an autonomous domain. A. [If] he had two fields, one above anotherB. [if] the lower one is planted [with] a vineyard, and the upper one is not planted [with) a vineyard, C. he sows [first printed ed. adds through "he sows" in E (Vienna omitting) :] the upper [field] until he reaches the base of the lower [field]; D. [if) the upper one is planted [with] a vineyard, and the lower one is not planted [with] a vineyard, E. he sows the lower [field) and the [slope of the (HD)] terrace until he reaches the base of the vines [in the upper field). T. Kil. 3: 9 (p. 215, 11. 33-36) (D-E: Y. Kil 6:2 (30a))

T. Kil. 3:9 continues the discussion ofT. 3:7-8 concerning the status of the slope of the terrace. T. consists of a protasis, A, and a pair of conditional clauses, B-C and D-E. These clauses almost perfectly balance one another, differing only in that E adds "the [slope of the] terrace," which may be a gloss. T. concerns the case of two neighboring terraces which are planted with different kinds. In B-C a vineyard is planted in the upper field and another kind is sown in the lower terrace, while in D-E the circumstances are reversed. In both instances T. rules that one may sow the other kind on the slope right up to the beginning of the vineyard, presumably even within the latter's area of tillage. The point of T. is that the slope of the terrace is considered

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to be autonomous of the fields which it joins, so that the crops sown in it are not regarded as being connected to either of the adjoining terraces. We note that T.'s rule, in allowing the other kind to be sown right up to the vineyard itself, is concerned only that there be no actual planting of diverse-kinds, regardless of whether or not the appearance of diverse-kinds may result. 5:2 A. A vineyard that is planted by [intervals of] less than four arnot-

B. R. Simeon says, "[It] is not [considered] a vineyard [B. B.B. 83a reads: the words of R. Simeon]." C. And sages say, "[P, B. B.B. 37b add: Lo, this is (considered)] a vineyard." D. And they [i.e., sages] regard the middle [rows] as if they are not [there]. M. Kil. 5:2 (B. Erub. 37b, 83a, 102b, Y. Shev. 1:3 (32b), Y. Naz. 9:3 (57d)) M. Kil. 5:2 discusses the minimum distance that must separate rows of a vineyard, and so continues the interest of M. 5:1 E~K in the arrangement of a vineyard. M. presents a dispute consisting of a protasis at A (following the formulary pattern of M. 5:1 E [knn snw' ntw']), two fixed, balanced opinions of Simeon and sages at B~C, and a gloss of C at D. The dispute concerns whether or not the rows of a vineyard must be set apart by a fixed distance, so that they may be differentiated from one another and the vineyard may appear to be planted in an orderly manner. 23 Simeon maintains that the rows must be separated by four arnot, the area of tillage of a vineyard, for then the rows will surely appear to be distinct from each other. Sages, on the other hand, maintain that rows may form a vineyard even if they are separated by less than four arnot. Sages therefore will agree with Meir (M. 5: lJ~K) that the vines of a vineyard need only produce the overall appearance of a vineyard, but need not actually be planted in

23 Alternatively, the commentaries maintain that the dispute concerns whether or not the vines of a vineyard need be allowed sufficient room to grow (Maim., Comm.), or whether or not the rows of a vineyard need be separated by enough space to allow a plough and its animals to pass through (Rosh, Bert., PM; cf. Columella, De Re Rustica 5.5.3 (Loeb ed., II, p. 31), who also cites this reason as a consideration in the spacing of rows of a vineyard). Cf. also B. B.B. 102b for another interpretation based on D. We do not see, however, why any of these considerations should affect the status of the vines as a vineyard.

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a regular arrangement. D explains that sages, ignoring the actual planting of the vineyard, maintain that the middle rows, or the rows which (individually) lie between any two rows separated by four arnot, are regarded as if they do not exist, so that all vineyards are considered to be arranged by intervals of four arnot. D thus brings the opinion of sages in line with that of Simeon, for now all agree that the rows of a vineyard must be separated by four arnot. A. R. Simeon says, 'Y1 viruyard which is planted by [interval5 if] less than four amot" [= M. 5:2A] or more than eight amot, B. "lo, this is [= omitted by Erfurt] not [considere~ a viruyard = [M. 5:2B]." T. Kil 3:5c (p. 214, 11. 27-28)

T. Kil. 3:5c restates M. 5:2A-B, incorporating M.'s protasis (M. 5:2A) into Simeon's saying and adding the rule that a vineyard's rows must be separated by less than eight arnot. T. derives this rule from M. 4:9F, where Meir and Simeon state that one may sow another kind between rows of a vineyard which are set apart by eight arnot. T. interprets this saying to mean that rows which are separated by eight arnot do not combine to form a vineyard, and therefore another kind may be sown between them without producing a planting of diverse-kinds of the vineyard. T. thus combines the rules of M. 4:9F and M. 5:2B, and so has Simeon presenting both the minimum and maximum distances which may separate the rows of a vineyard. 5:3-4 A. A ditch which passes through a vineyard [and measures] ten [handbreadths] deep and four wideB. R. Eliezer b. Jacob says, "If[= omitted in Sn] [the ditch] was open [= omitted in M] [i.e., extending] from the beginning of the vineyard to its end (swpw; most mss., MS: r,fw ["from one end of the vineyard to the other"]), C. "lo, this appears as [if it extends] between two vineyards, D. "and they sow [another kind] in it. E. "And if not [i.e., if the ditch is not open], F. "lo, this is [considered] like the winepress." G. And [= omitted by most mss.] the winepress that is in the vineyard [and measures] ten [handbreadths] deep and four wideH. R. Eliezer says, "They sow [another kind] in it." I. And sages prohibit [sowing another kind in it]. J. The watchman's booth [so Danby for fwmrh; alternatively, a mound or hill upon which a watchman stands (most commentaries)] which is in the vineyard [and measures] ten [handbreadths] high and four wide-

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K. they sow [another kind] in it [i.e., on top of it (Maim., Code, DiverseKinds 7:22)]. L. And if it is overhung by interlaced foliage [so Danby for s"r kwtf], M. it is prohibited [to sow another kind in it]. M. Kil. 5:3 N. A vine that is planted in the winepress or in the hollow (nq')2 40. they allow it its area of tillage and he sows the rest. P. R. Yose says, "If there are not there four amot [of space], he shall not put seed into it." Q And the house which is in the vineyardR. they sow [another kind] in it. M. Kil. 5:4

M. Kil. 5:3-4 discusses sowing another kind in different areas of the vineyard. A-F concerns sowing a ditch, while G-M +Q-R deals with seeding a winepress (G-I), a watchman's booth or mound (J-M), and a house (Q-R). As we shall show, N-P is an interpolated unit which concerns sowing another kind together with a vine in a winepress or hollow, and so complements G-I. A-F consists of a protasis, A, following the formulary pattern of M. 5:1E and M. 5:2A (X snw' + participle), and Eliezer b. Jacob's saying at B-F. The latter is composed of a pair of conditional sentences, B-D (forming, with A, a mildly apocopated sentence) and E-F. These two sentences are not well balanced, as we see from the following chart:

B. R. Eliezer b. Jacob says, "If the ditch was open [i.e., extending] from the beginning of the vineyard to its end, C. "lo, this appears as [if it extends] between two vineyards, D. "and they sow [another kind] in it."

E.

"And if not,

F. "lo, this is [considered] like the winepress."

While E-F corresponds to B-C, we would expect the phrase "they do not sow [another kind] in it" to follow F and balance D. This phrase has been dropped so that F, which by itself simply compares the "closed" ditch to the winepress, may introduce Eliezer's opposing view (G-H) that one may not sow in a winepress. The ruling of Eliezer b. Jacob is not obscured, however, for the redactor both preserves it and increases

24 Our translation follows Maim., Comm., Rosh, and others, who understand nq' to mean gwm' ("hollow").

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its prominence by assigning it to sages (I), thus giving it the status of a majority opinion. The three parts of G-M+Q-R (G-1, J-M, and Q-R) all open with protases in the formulary pattern X sokrm. Two of the protases (G and S) also give the dimensions of the area discussed with nearly identical phrases ("ten [handbreadths] deep (or high) and four wide"), while Q lacks such a specification of size because of the substance of its rule. 25 The apodoses of the unit (H, K, and R) all read zwr'ym btwkh (with L-M glossing K). The protasis of N-P follows the formulary pattern of M. S:lE, 5:2A, and 5:3A. Since N follows a distinctive formulary pattern, but not that of the protases of G-M+Q-R, it appears that N-P is separate from the foregoing. Furthermore, the apodosis of the unit, 0 (= the apodoses of M. 4: 1], 4:2N), differs from the apodoses of G-M +Q-R in introducing the consideration of the area of tillage. N-P is therefore an autonomous unit that has been inserted into G-M+Q-R to complement the discussion of the winepress in G-1. Eliezer b. Jacob rules in A-F that a ditch measuring ten handbreadths deep and four wide may be sown only if it extends across the length of the vineyard. The ditch then forms an autonomous domain, both because of its size and because it appears to divide two separate vineyards. If the ditch is not open, however, it is regarded as a winepress, which may not be sown (regardless of its size) because it lies entirely within the vineyard and is not adequately set apart from it (as it would be, for example, by partitions). In G-H Eliezer26 disagrees with Eliezer b. Jacob, maintaining that, because of its size, the winepress measuring ten handbreadths deep by four wide does constitute an area unto itself in the vineyard. According to J-K one may sow on top of a Jwmrh, i.e., a watchman's booth or mound, which measures ten handbreadths high and four wide, for a mound of such dimensions forms an autonomous domain within the vineyardY L-M then qualifies J-K by saying that

25 Since the area within the house is clearly separated from that of the vineyard by the walls and the roof, a house of any size presumably forms an autonomous domain within the vineyard. 26 Cf. Neusner, Eliezer, I, pp. 354£, who maintains that this Eliezer is not Eliezer b. Hyrcanus. Since Eliezer here (indirecdy) disputes with Eliezer b. Jacob concerning the winepress, he is probably an U shan as well. 27 Y. explains (c£ also Ribma~, Rosh, Albeck) that the case of the watchman's booth or mound differs from that of the winepress in that the seeds on the booth or mound grow outside of the vineyard's airspace, while those sown in the winepress remain

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a fwmrh covered by an overhang of interwoven vines may not be sown, 28 for now the booth or mound clearly belongs in the domain of the vineyard.29 Q-R states that one may sow in the house of a vineyard (presumably under a partially-open roof), for the house is separated from the vineyard by its walls and roof, and so constitutes an area unto itself. The point of N-0 is that a vine and another kind may be sown even in a small, bounded area, as long as they are separated by the vine's area of tillage (Maim., Comm.). Yose then qualifies N-0 by saying that the winepress may be sown only if it contains four amot of space, or (presumably) enough space to allow both the vine and a substantial amount of the other kind to grow. Albeck apparently understands "four amof' to mean "four square amot (rather than four amot in one direction or four amot square)," so that Yose refers to the vine's area of tillage (= one amah in each direction). Yose then makes the obvious point that the winepress or hollow may not be sown unless it is large enough to contain the vine and its area of tillage. A. A vine that is planted in a hollow [measuring] ten [handbreadths] deep

and four wide-

B. thry allow it its area qf tillage [i.e., the area between the vine and another

kind] below [i.e., within the hollow itself (HD)]. C. [If the hollow measures] less than this, D. thry allow it its area qf tillage [i.e., the area between the vine and another kind] above [i.e., outside of the hollow (HD)]. T. Kil 3:10a (p. 215, ll. 36-38) T. Kil. 3:10a cites and glosses M. 5:4N-0. T. consists of a declarative sentence, A-B, followed by a conditional sentence, C-D, which depends on A-B for its context. The two apodoses are glossed citations of M. 5:40, and so perfectly balance one another (mth vs. m'lh). M. 5:4N-0 states that one may sow another kind near a vine planted in a winepress or hollow, provided that he allows the vine its area of within it. The difference may also be explained with regard to the appearance of diverse-kinds. One may sow on top of a booth or mound because the plants are visible above the surrounding vines. Since, however, plants sown in a winepress would not grow higher than the vines (and so could produce the appearance of diverse-kinds), they may not be sown there. 28 According to Maimonides (Code, Diverse-Kinds 7:22) the overhanging vines will touch the vegetables sown on top of the fwmrh, so that sowing on top of the fwmrh is clearly prohibited. 29 Cf. M. Peah 2:3 and M. Kil. 4:7H-1, which state that a divider covered by interlaced vines is no longer considered a valid divider.

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tillage, which here refers simply to the distance which must separate a vine from another kind. T. now assumes that a vine planted in a hollow will eventually climb out of it, and therefore asks whether in this case the area of tillage is to be allowed within the hollow or outside of it. According to T. the answer depends on the size of the hollow. If the hollow measures ten handbreadths deep and four wide, then the vine is considered to grow in a distinct, autonomous area (cf. M. 5:3A-F+G-I), so that the area of tillage is to be allowed within the hollow itself (A-B). If, however, the hollow is smaller than the specified size, the vine is not considered to grow in a separate area unto itself, and the area of tillage is to be allowed aboveground (C-D). In the latter case T. takes the middle position between permitting the area of tillage to be allowed within the hollow (as in A-B), and not permitting the area of tillage to be allowed at all (i.e., prohibiting another kind from being sown near the vine). T. thus introduces the consideration of the hollow's size within the framework of M.'s rule that a vine in a hollow is allowed its area of tillage. T. therefore concerns not whether or not the area of tillage is to be allowed, but where it is to be granted. A. A ditch which passes through a vint;Yard and measures ten handbreadths deep andfour wide [= M. 5:3A]B. R. liezer [Erfurt, first printed ed.: Eliezer] says, "They sow in it three seeds (zr'wrryn; Erfurt: rrryrryn ["kinds"]), C. "one on one [side], one on the other [side], and one in the middle." D. Said R. liezer [Erfurt, first printed ed.: Eliezer] b. Jacob [first printed ed.: R. Eliezer b. Jacob says], "The words of R. Eliezer [lieberman, 30 following Erfurt, first printed ed., omits: b. Jacob] appear [correct (Neusner)] 31 with [regard to] a breached ditch [so Neusner for frrys. mbwrs.] ." T. Kil. 3:10b (p. 215, ll. 38-40) (C: M. Kil. 3:2)

T. Kil. 3:10b cites and glosses M. 5:3A. A's citation of M. is glossed by Eliezer in B-e, whose opinion is then glossed in turn by Eliezer b. Jacob in D. In B-C Eliezer applies the rule of M. 3:2H-I to M. 5:3A (Lieberman), 32 saying that one may sow the ditch described in A with three kinds of seeds, one on either side and a third in the middle. Eliezer thus presupposes that one may sow a ditch of the specified size

30 31 32

TZ, p. 215, critical apparatus to 1. 40, and TK, II, p. 628, on I. 40. Eliezer, I, p. 354. TK, II, p. 628, on I. 39.

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which passes through a vineyard, and so is consistent with his rule (M. 5:3H) that one may sow a winepress of the same size in a vineyard (for both areas are simply depressions in the ground). Eliezer b. Jacob in D qualifies Eliezer's ruling, saying that it applies only in the case of a breached, or open (Lieberman) 33 ditch. Eliezer b. Jacob then brings Eliezer into accord with the view attributed to Eliezer b. Jacob at M. 5:3A-D. T. thus links the rules of Eliezer and Eliezer b. Jacob, which appear in different contexts in M. (concerning the winepress and the ditch, respectively), so that both authorities now discuss a single issue, the sowing of a ditch in a vineyard. 5:5

He who plants vegetables in the vineyard or allows them to grow, lo, this one sanctifies [i.e., prohibits the use of] forty-five vines. When [is this the case]? When [the vines] were planted by [intervals of] four, four [arnot, i.e., the vines were separated from one another by four arnot in four directions (most commentaries)], or by [intervals of] five, five [arnot, i.e., the vines were separated from one another by five arnot in four directions] . E. [If the vines] were planted by [intervals of] six, six arnot, i.e., the vines were separated by six arnot in four directions], or by [intervals of] seven, seven [arnot, i.e., the vines were separated from one another by seven arnot in four directions], F. lo, this one sanctifies [i.e., prohibits the use of the vines planted within] sixteen amah in each direction, G. [measured] in circles and not in squares [following Danby for 'gwlwt wl' mrwb'wt, Danby adds (p. 34, n. l): The vines are forfeit that lie within a circle of sixteen cubit radius, not within the square that contains the circle]. M. Kil 5:5

A B. C. D.

M. Kil. 5:5 continues the discussion of M 5:3-4 concerning the sowing of another kind in a vineyard, turning from the instances of permitted sowing to the case of prohibited sowing. M. consists of A-B, a declarative sentence which is glossed by C-G. The latter is a unitary construction composed of C-D, which appears in a question-and-answer pattern, followed by a conditional sentence at E-F (with E balancing D [four + five vs. six + seven]), and an internal gloss at G. A-B describes the case of one who plants vegetables or allows them to grow among vines (i.e., within a vineyard), ruling that the sower

33

TZ, p. 215, on 1. 40, and TK, II, p. 628, on 1. 40.

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thereby sanctifies forty-five vines. Now we have already seen that one who sows another kind within the vineyard's area of tillage, i.e., at the edge of the vineyard, sanctifies either one (House of Shammai) or two (House of Hillel) rows of vines (M. 4:5F-H). This rule follows from the Houses' respective definitions of a vineyard as consisting of either one or two rows (M. 4:5A-D), and Dt. 22:9, which states that, by sowing another kind, one sanctifies a vineyard: You shall not sow your two kinds qf seeds, lest the whole yield be sanctified, the crop which you have sown and the yield qf the vinryard. A-B then complements M. 4:5F-H. While the latter defines the "vineyard" which is sanctified when one sows another kind at the edge of the vineyard, A-B determines this "vineyard" when one sows the other kind among the vines. It is not clear, however, why A-B should define the "vineyard" to consist of exactly forty-five vines. In order to understand A-B, therefore, we must first turn to the explanation presented in C-G. C-D states that the rule of A-B applies only when the vines of the vineyard are set apart by four or five arnot in each direction. When the vines are separated by six or seven arnot, however, all of the vines that lie within a radius of sixteen arnot from the vegetables are sanctified (E-G). Maimonides (Cornrn.) explains the significance of the spacing of the vines as follows. The rule of A-B, as interpreted by C-D, is a particular instance of E-G, for the latter, although referring to vines separated by six or seven arnot, actually presents a general rule applying to all arrangements of vines. A-B thus gives the number of vines that happen to lie within the specified radius when the vines are separated by four or five arnot. Now while forty-five vines do lie in a circle of radius sixteen arnot when four arnot separate the vines (fig. 21 ), 34 only thirty-seven vines are actually contained in such a circle when the vines are set apart by five arnot (fig. 22). Maimonides here explains that the circle is considered to be wholly planted with vegetables, so that the row immediately outside of the circle but within four arnot of it is also sanctified, since this row lies within the sanctified vineyard's area of tillage. In this case as well, then, the number of sanctified vines totals forty-five (fig. 23). A-B is thus shown to be an example of the rule of E-G. Maimonides summarizes his view as follows (Code, Diverse-Kinds 6: 1-2):

34

Figures 22-23 are found in Qappah, I, pp. 121-122.

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[6: 1] He who sows vegetables or grain in the vineyard, or he who allows them to grow until they have increased by one two-hundredth [cf. M. 5:6], lo, this one sanctifies [i.e., prohibits the use of] vines which [lie] around it [i.e., the vegetables or grain] sixteen arnot in each direction, [measured] in circles and not in squares [= M. 5:5F-G]. And they regard the entire circle, the width [i.e., the diameter] of which is thirty-two amah, as if it is full of vegetables throughout. And every vine which is within this circle is sanctified with the vegetables, and all vines which are outside of the circle are not sanctified. [6:2] Under what circumstances? When there were between the circumference of this circle and the row of vines which Uies] outside of it more than four arnot. But if there were between them exactly (ms.wTnJ.mwt) four arnot or less, they regard the circle as if it reaches the [outside] row nearest to it, and as if the circle's width [i.e., diameter] is forty amah. And as to Uit.: they regard (1Wjn)] every vine that falls within this circle of [diameter] forty arnot, lo, this one is sanctified.

Maimonides' reading of A-B as an instance of E-Gis somewhat difficult, though, for he must maintain that, when the vines are separated by five arnot, vines outside of the circle of sixteen arnot are also sanctified. M., however, nowhere states that vines lying outside of a radius of sixteen arnot are sanctified (Rabad to Code, Diverse-Kinds 6:2). 35 We therefore turn to the alternative interpretation based on T AS. According to TAS both A-B (as explained by C-D) and E-G describe cases in which vegetables are sown or allowed to grow around the vine that is located at the very center of the vineyard (Samuel in Y. Kil. 5:5 (30a)). 36 A-B+C-D states that when the vines are separated by four or five arnot, forty-five vines are sanctified, while E-G rules that when the vines are six or seven arnot away from each other, all vines within a radius of sixteen arnot from the vine in the center are sanctified. Now T AS agrees with Maimonides that E-G states a general rule applying to all arrangements of vines. We maintain, however, that such a position raises the same problems mentioned above with reference to Maimonides' opinion (i.e., only thirty-seven vines are contained in a

35 Cf. also TYT and GRA, who explain the case of vines separated by five amot as follows. One cannot distinguish between the appearance of vines set apart by five amot and that of vines separated by four amot. If, therefore, one were to destroy only thirtyseven vines that are separated by five amot, it would appear as if he were allowing eight sanctified vines to grow in a vineyard with the vines separated by four amot. Therefore forty-five vines are sanctified in both cases. 36 Cf. also Yose b. tlaninah's comment in Y. that the vegetables are sown opposite the central vine. For further discussion of Y., see Bokser, I, pp. 50-54.

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radius of sixteen arnot when the vines are set apart by five arnot)Y We shall therefore modifY the view ofTAS and not read A-B as an instance of E-G. The two rules then disagree because of the difference in the spacing of the vines. In the case of A-B the vines are separated by four or five arnot (C-D), so that the vegetables lie within the area of tillage (= four arnot) of both the vine at the center and the eight surrounding vines (cf. fig. 24), and are regarded as being sown near each of these nine vines. We have already seen that, according to House of Hillel (M. 4:5H), vegetables that lie within the area of tillage of a vineyard sanctify a "vineyard" consisting of two rows of vines. 38 This rule is here applied to each of the nine vines, so that every vine that may combine with one or more of these vines to form a vineyard (consisting of two rows of vines, with two vines aligned opposite three others [M. 4:6]) is sanctified. The number of vines that are sanctified when the vines are separated by four or five arnot thus turns out to be fortyfive (fig. 25). At E-G, on the other hand, the vines are set apart by six or seven arnot, and the vegetables sown around the vine in the center lie within the area of tillage of that vine alone. In this instance, then, only those vines are sanctified which may combine with the central vine to form a vineyard. Now we may support the interpretation of T AS by showing that all of these sanctified vines, and these vines alone, lie within a radius of sixteen arnot from the vine in the center. We may demonstrate that all of the sanctified vines are contained in the circle of radius sixteen arnot by showing that the sanctified vine that lies furthest from the center is less than sixteen arnot away from it. We may similarly show that only the sanctified vines are contained in the circle by determining that the vine that is closest to the center and yet not sanctified lies more than sixteen arnot away from the center. In each case the dis-

37 T AS solves this problem by maintaining that several circles of radius sixteen amot are drawn, each with its center at either the vine at the center of the vineyard or one of the eight vines surrounding it. Those vines are sanctified which both lie in one of those circles and form a vineyard with one of the nine vines (see interpretation in text). We maintain, however, that this interpretation does not follow the plain sense of M., which nowhere mentions that several circles are drawn. Furthermore, the reading of A-B as an instance of E-G does not appear to be necessary to the interpretation of A-B itself. We therefore omit this point in following the interpretation of TAS. 38 According to this interpretation there is no difference between sowing at the edge of a vineyard and sowing within it. A-B then does not complement M. 4:5H, but provides an instance of the view of the House of Hillel.

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tance between the vine in the center and the outer vine may be measured by constructing a right triangle with the hypotenuse drawn between the two vines. The measure of the hypotenuse is then equal to the square root of the sum of the squares of the measures of the triangle's other two sides (Pythagorean Theorem). The proof proceeds as follows. First, the perpendicular sides of a right triangle with a hypotenuse drawn from the center to the furthest sanctified vine respectively measure either 6 and 12 arnot (with the vines spaced at intervals of six arnot) or 7 and 14 arnot (with the vines spaced at intervals of seven arnot) (fig. 26). The distance between the furthest sanctified vine and the center is then either 13.41 =

~6 2 + 122

or 15.65 =

~7 2 + 142 arnot,

so that this vine lies within the circle of radius sixteen arnot. Since the sanctified vine furthest from the center lies within the circle, all other sanctified vines are contained in the circle as well. Second, the perpendicular sides of a right triangle with a hypotenuse drawn from the vine in the center to the nearest vine which is not sanctified respectively measure either 12 and 12 arnot (with the vines spaced at intervals of six arnot) or 14 and 14 arnot (with the vines spaced at intervals of seven arnot) (fig. 26). The vine that is closest to the center and yet not sanctified is either 16.97 =

~12 2 + 122

or 19.79 =

~14 2 + 14 2 arnot

away from the center, and thus lies outside of the circle of radius sixteen arnot. Since the nearest vine to the center that is not sanctified is not contained in the circle, no vine that is not sanctified lies within the circle. We have thus accounted for the rule of E-G by first determining which vines are sanctified, and then showing that the circle of radius sixteen arnot exclusively contains all of these vines. A. He who plants vegetables in the vint;yard or allows them to grow, B. lo, this one sanctifies [i.e., prohibits the use if] forty-jive vines. C. J1!hen [is this the case]? D. When [the vines] were planted by [interval~- if] four, four [arnot, i.e., the vines were separated from one another by four arnot in each direction], or by [intervall- qfl five, five [arnot, i.e., the vines were separated from one another by five arnot in each direction]. E. [lf the vines] were planted by [interval~- if] six, six [arnot, i.e., the vines were separated from one another by six arnot in each direction], or by [interval~- if] seven, seven [arnot, i.e., the vines were separated by seven arnot in each direction],

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1340

TEXT AND COMMENTARY

NUMBER OF SANCTIFIED VINES

:---

......

1/

5

7 7 7 7

\

4

I

1\

7

5

......

.......

45

SCALE: 1 SQUARE = 4 AMQI

Fig. 21

SCALE: 1 SQUARE= 5 ~

NUMBER OF SANCTIFIED VINES

,..

3

5

'

7 5

7 7

5

.!. II',

5 _3_

37

Fig. 22

.,......-

........

NUMBER OF SANCTIFIED VINES

\

I 55

5

I

\ ........

5 ........

SCALE: 1 SQUARE= 5 ~

7 7 7

7 7 5

45

Fig. 23

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MISHNAH-TOSEFTA KILAYIM CHAPTER FIVE

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~VEGETABLES SCALE: 1 SQUARE = 4 AMOT (NO SIGNIFICANT DIFFERENCE FOR SPACING OF 5 AMOT)

Fig. 24

NUMBER OF SANCTIFIED VINES

SCALE: 1 SQUARE = 4 AMOT

5 7 7 7 7

[44

.I

7 5

I

\'

45

VEGETABLES

(NO SIGNIFICANT DIFFERENCE FOR SPACING OF 5 AMOD

•=

VINES DIRECTLY AFFECTED BY VEGETABLES X= OTHER SANCTIFIED VINES

Fig. 25

,_.....

!"'"'/'

..... v

I

•

!\

•

•

........

,_.....

v

/

'" \

~I

ONE OF THE CLOSEST VI NES WHICH WILL NOT FORM A VINYARD WITH THE CENTRAL VINE ONE OF THE MOST D ISTANT VINES WHICH WILL FORM A VINYARD WI TH THE CENTRAL VINE

f--

~a

AMOT

SCALE: 1 SQUARE = 4 AMOT SPACING: 6 AMOT -(NO SIGNIFICANT DIFFERENCE FOR SPACING OF 7 AMOTl

Fig. 26

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1342

TEXT AND COMMENTARY

F. lo, this one sanctifies [i.e., prohibits the use if the vines planted within] sixteen amah in [Erfurt omits the following through I] each direction, G. [measured] in circles and not in squares [= M. 5:5A-G]. H. R. Simeon b. Eleazar says, "He drives [GRN9 adds: a stake (ytdJ] into the ground [at the spot at which the vegetables grow], and measures from it sixteen amah in each direction, I. "[measuring] in circles and not in squares [HD: (measuring) in squares and not in circles], ]. "because they [i.e., the vines in the corners of the square] appear [as if they are] in [Erfurt, first printed ed.: like] the corner[s] of a tablet [i.e., they are considered to be part of the whole] [Erfurt: it (i.e., the vineyard) is regarded (to be) like a curved horn (kqm ~lh) 4D]." T. Kil. 3:11 (pp. 215-216, 11. 41-45)

T. Kil. 3:11 cites M. 5:5 at A-G, with Simeon glossing and opposing G at H-J. The reading of H-j is somewhat difficult. According to our present text Simeon b. Eleazar agrees with G and H-I, saying that F refers to a circle and not to the square in which it is inscribed. At], however, he states that the vines in the corners of the square are regarded as being in corners of a tablet, or as part of a whole (cf. T. Ah. 15:2 [Neusner, HMLP, IV, pp. 292-293] for a similar use of the phrase qm tbt). These vines would not be contained in a circle, so that Simeon b. Eleazar here appears to oppose H-I. We therefore follow HD and emend I to read "[measuring] in squares and not in circles." Simeon b. Eleazar then opposes G, maintaining that F describes the square rather than the circle inscribed within it, for the corner-vines are to be sanctified along with the other vines. 5:6 A. He who sees vegetables [growing] in the vineyard and said [Mn, N: says], "When I shall reach it [i.e., the vegetables] I shall pluck it [so Danby for 'lqtnw]"B. it is permitted [i.e., the vegetables and surrounding vines are not sanctified] . C. [If he said,] "When I shall return I shall pluck it"D. if [in the meantime] it [i.e., the vegetables] increased [in size] by [one] two-hundred[th] [all commentaries], E. it is prohibited [i.e., the vegetables and the surrounding vines are sanctified]. M. Kil. 5:6 Cited by Lieberman, TZ, p. 216, on l. 44, and TK, II, p. 629, on l. 44. Lieberman (TK, II, p. 629, on l. 45) rejects Erfurt's reading (which perhaps follows the present reading of I) in favor of the reading in Vienna Ms. and the first printed ed. 39

40

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M. Kil. 5:6 defines the act of allowing diverse-kinds to grow in a vineyard, and so complements the discussion of M. 5:5 concerning, "He who plants vegetables in vineyard or allows them to grow." M. is a unitary pericope consisting of A-B, a declarative sentence, and C+E, a conditional sentence dependent on A for its context. D glosses C+E. C balances the latter part of A (ks"'gy' lw vs. kl'fl.zr), while the apodoses at B and E are fixed. We note that A opens with a participle and then uses the perfect tense, a shift which may indicate that A has been revised to follow the formulary pattern of M. 5:5. According to A-B one who spots vegetables growing in his vineyard need not immediately remove them, but may allow them to grow until he reaches them in the course of his work. Since he has not overtly indicated that he wishes the vegetables to grow in the vineyard, it does not appear as if he allows diverse-kinds to grow, and he therefore need not make a special effort to uproot them. C+ E, on the other hand, states that, having reached the vegetables, one may not leave the area with the intent of returning to remove them. By leaving one makes it appear as if he wishes the vegetables to continue to grow, and he is thus regarded as one who allows diverse-kinds to grow in the vineyard. D adds that one may not leave and allow the vegetables to remain if, in the meantime, they grow by one two-hundredth. A. The owner (b'l hbyt) [of a vineyard) who allowed wild vegetables (yrqwt sdh) to grow in the vineyardB. it [i.e., the use of the vegetables or vines] is prohibited for him and prohibited for everyone [else] [Y.: whether for him or for anyone else]. C. Another [person] from any place [Y.: a worker] who allowed wild vegetables to grow in [someone else's] vineyardD. it [i.e., the use of the vegetables or vines] is prohibited for him and permitted for everyone [else). T. Kil. 3:12b (p. 216, ll. 47-49) (Y. Kil. 5:5 (30a))

T. Kil. 3:12b comments on M. 5:6, introducing a distinction between the owner and the passerby who allow diverse-kinds to grow in the vineyard. T. is composed of two well-balanced declarative sentences, A-B and C-D. T. concerns the case of wild vegetables which grow in a vineyard, and thus underlines the fact that the vegetables involved are not sownY According to A-B the owner who allows the vegetables 41

TK, II, p. 629, on II. 47-48.

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TEXT AND COMMENTARY

to grow in his vineyard renders them prohibited, or sanctifies them (along with the surrounding vines), for everyone. C-D then states that one who sees vegetables growing in another's vineyard but fails to remove them, as he is allowed to do (cf. T. 2:16 [cited by T.{, p. 216, on 1. 48]), renders them prohibited for himself but not for others. In this instance one may not himself use diverse-kinds which he has allowed to grow, but he does not render them prohibited for others, presumably because one cannot sanctifY that which is not his (cf. M. 7:4-5). T. thus effectively understands sanctification in a relative sense, for in the latter case the vegetables and vines do not become absolutely prohibited, but are forbidden only to certain individuals. 5:7 A. [If] he was passing through the vineyard, and seeds fell from him [i.e., from those which he was carrying]B. or [if seeds] went out (into the vineyard] with the dung (used in manuring the vineyard] or with the water (which irrigated the vineyard]C. he who sows [in a field of grain (Y.)] and the wind blew (s'rtw) [the seeds] behind him (into the nearby vineyard]D. it is permitted. E. [If] the wind blew (s'rtw; most mss.: .m'tw ("aided him (in spreading)"]) [the seeds] before him [Bert. (according to MS), KJ>4 2 add:it is prohibited]F. R. 'Aqiva says, "If (he allowed the seeds to grow until they yielded] blades [so Danby for 'slrym], he shall overturn [them]. G. "If (he allowed the seeds to grow until they reached] an early stage of ripening [so Primus 43 for 'lryb], he shall break [the ears] off [following Danby for ynf,£]. H. "And if (he allowed the seeds to grow until they] yielded [Primus adds: ripened] grain-it shall be burnt." M. Kil. 5:7

M. Kil. 5:7 discusses the act of sowing diverse-kinds in a vineyard, and so further complements M. 5:5. M. is composed of A-D, consisting of three protases (A-C) with a single, fixed apodosis (D), and E-H, containing a protasis (E) which balances C and a saying of 'Aqiva (F-H). Since E responds only to C, and since C (rather than A-B) follows the formulary pattern of M. 5:5A and M. 5:6A, it appears that C originally opened the pericope, and that A-B was later attached to it. The

42

43

Cited by Lieberman, TK, II, p. 629, on l. 4 7.

Primus, p. 33.

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balance of C and E leads us to expect D to be balanced by the fixed apodosis 'swr, which has apparently been dropped in favor of 'Aqiva's saying at F~H. The latter is then not primary to the pericope, and we shall see, in fact, that it does not deal with the issue of M. 5:5E at all. T. 3:12a, furthermore, assigns to Simeon, an Ushan, a different version of M. Oacking 'Aqiva's saying), so that it is unlikely that the pericope is of Yavnean origin. M. then appears to have originally consisted of C~E + the apodosis 'swr. A~B describes cases in which seeds accidentally enter a vineyard without being sown. C and E then contrast two cases of accidental sowing in a vineyard, distinguishing between the appearances of intentional and unintentional sowing. In both instances the wind blows into an adjacent vineyard seeds that are sown in a field of grain (Eleazar in Y. Kil. 5:7). If the wind blows the seeds behind the sower into the vineyard (C) the sowing is considered to be unintentional. Since the sower clearly does not want the wind to blow the seeds away from the spot of sowing, it does not appear as if he wishes the seeds to go into the vineyard. This sowing is therefore permitted (D), 44 i.e., it does not sanctity the vines. 45 It is now clear that A and B have been added in

44 We note that Maimonides (Code, Diverse-Kinds 5:17 [seen. 45 below]; cf. also TYY) maintains that although the sowing itself is permitted, one must still uproot the other kind as it grows, lest one allow diverse-kinds to grow in the vineyard. Maimonides here perhaps reads M. 5:6 into M. 5:7, for the pericope itself does not discuss allowing the other kind to grow. 45 According to Maimonides, who perhaps reads F-H (which discusses the destruction of seeds) into A-E, the sowings of C and E affect only the seeds, and not the vines (Code, Diverse-Kinds 5: 17): [If] he was passing through the vineyard and seeds fell from him, or [if] the seeds went out [into the vineyard] with the dung or with the water, or [if] he was sowing or scattering [seeds] in a white field, and the wind blew [the seeds] behind him, and the seeds fell into the [nearby] vineyard and sprouted-lo, this [i.e., these seeds] have not been sanctified, as it is written [You shall not sow your vinryard with two kinds qf seed lest the whole crop be sanctified, the crop] which you have sown [and the yield of the vinryard (Dt. 22:9)], and this he did not sow. And he is obligated to uproot it when he sees it [growing]. And if he allowed them to grow, lo, this one has sanctified [them]. If the wind blew [the seeds] before him and he sees the seeds that fell into the vineyard, lo, this one is [considered] as one who sows [diverse-kinds]. And what shall he do if they have sprouted? The blades he shall overturn with a plow, and it is sufficient [i.e., the plants are thereby destroyed]. And if he found that they developed into an early state of ripening ( 'byb), he shall break [the ear] off in order to destroy it, for all of it is prohibited in [respect to] deriving benefit from it. And if he found that it developed into grain, lo, this shall be burnt. And if he saw them [growing] and allowed them to grow, lo, these shall be burnt with the vines that are near them.

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TEXT AND COMMENTARY

order to illustrate the case of C. If, on the other hand, the wind blows the seeds before the sower (E), the sowing is considered to be intentional. Since the sower desires the wind to blow from behind him and scatter the seeds, he thus appears to wish that the seeds be blown into the vineyard. In this instance, then, the sowing is presumably prohibited. In F~H 'Aqiva describes that method of destroying seeds which is appropriate to each stage of the seeds' development. 'Aqiva's saying is then not relevant to the case of E. While the latter concerns only the sowing of seeds in a vineyard, 'Aqiva's saying presupposes that the seeds have been allowed to grow as well. F~H perhaps better fits the context of M. 5:6, which specifically discusses the question of allowing diverse-kinds to grow in a vineyard. M. 5:6 would then read as follows: A. He who sees vegetables [growing] in the vineyard and said, "When I shall reach it [i.e., the vegetables] I shall pluck it"B. it is permitted [i.e., the vegetables and surrounding vines are not sanctified]. C. [If he said,] "When I shall return I shall pluck it"D. if [in the meantime] it [i.e., the vegetables] increased [in size] by [one] two-hundred[th]E. R. 'Aqiva says, "If [the seeds yielded] blades, he shall overturn [them]. F. "If [they reached] an early stage of ripening, he shall break [the ears] off. G. "And if [they] yielded [ripened] grain-it shall be burnt."

'Aqiva's methods of destroying the seeds may be described as follows. If one allows the seeds to sprout only blades, he may destroy them by simply overturning them (F). If, however, the plants have reached an early stage of ripening ('byb), in which they already have ears containing partially-ripened grains, 46 then they are not to be overturned. Although the ears, by being overturned, would be detached from the ground, they would still continue to provide nourishment to the grains within them. One must therefore break off the ears (G), and thereby dislodge the grains, which will then dry up. 47 Finally, grains that are

Maimonides thus rules that the vines are destroyed only when the seeds are allowed to grow, but not when they are only sown. It appears, then, that Maimonides does not regard the sowing that is aided by the wind as an intentional sowing of diversekinds (Ridbaz, ad. loc.; Albeck, p. 366). If we read A-E without F-H, however, D (and the missing apodosis 'swr) appears to discuss the status of both the seeds and the vines. 4{; Feliks, Agriculture, p. I 71. 47 Ibid.

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fully ripened are able to survive even outside of the ears, so that these grains can only be destroyed by being burnt (H). A. R. Simeon b. Judah says in the name of R. Simeon, "He who sows [in a field if grain] and the wind blew (..ry'rtw) [the seeds] behind him [into the nearby vinryard]B. "it is permitted [= M. 5:7C-D], C. "for it is [a case of] an unavoidable accident [so Danby48 for ,wns]. D. "[.lf] the wind aided him [in spreading] (.ryy'tw; first printed ed.: .ry'rtw ["blew"]) [the seeds] bifore him [= M. 5:7E], E. [Erfurt, first printed ed., add:] "it is prohibited." T. Kil. 3:12a (p. 216, ll. 45-47) (A-G: Y. Kil. 5:7 (30a))

T. Kil. 3:12a attributes M. 5:7C-E, with slight differences, to Simeon b. Judah in the name of Simeon. T.'s version of the pericope differs from that of M. in two places. C glosses A-B, explaining that the sowing described in the latter is considered to be an unavoidable accident, since the wind scatters the seeds in the direction opposite to that in which the sower intends them to fall. At E T. presents the apodosis 'swr, which the presence of mwtr in M. 5:7D (= T. 3: 12a/B) had led us to expect. R. [You shall not sow your vinryard with diverse-kinds lest the whole yield be sanctified,] the seed .[which you have sown and the yield if the vinryard (Dt. 22:9)]S. excluding [the cases of] seed which went out [into the vineyard] with the dung [used in manuring the vineyard] or with the water [which irrigated the vineyard], T. [or the case of] he who sows in a white field and the wind blew (the seeds) behind him (into the nearby vineyard) [= M. 5:7B-G]. U. Might one say that I should exclude [as well the case of] he who sows and the wind aided him [in spreading] (m.ryy'tw; London, Hillel, GRA: "blew"]) [(the seed before him] [= M. 5:7E]? V. Scripture says, Which you have sown. Sifre Dt. 230e (ed. Finkelstein, p. 263, ll. 5-6)

Sifre Dt. 230e supplies proof-texts from Dt. 22:9 to M. 5:7B-C+E. R-T takes the phrase the seed to exclude all but the seed which the owner desires to be sown, and so to exclude the cases of S-T. At U-V the relative clause which you have sown is understood to include all cases of intentional sowing, and thus to include the case of E.

48

Cf. his translation of M. B.M. 7:9.

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5:8 A. He who allows thorns to grow in the vineyardB. R. Eliezer [B. B.B. l56b: Eleazar] says, "He has sanctified [the surrounding vines of the vineyard]." C. And sages say, "He does not sanctifY [the surrounding vines of the vineyard], D. "except [when he allows to grow] something the like of which they [Danby: ordinarily] allow to grow." E. ~) Iris/9 and (2) ivy, 50 and (3) a white lily, 51 F. and all kinds of [plants grown for the sake of their] seeds [Geniza fragments, 5 2 P, Pr (cf. also T. 3: l2c, MS, and Lieberman): 53 are kinds of seeds and], G. are not [GRA: are] [considered] diverse-kinds in the vineyard. H. (4) Hemp 54I. R. Tarfon says, "It is not [considered] diverse-kinds [in the vineyard]." J. And sages say, "[It is considered] diverse-kinds [in the vineyard]." K. (5) And the globe artichoke 55 is [considered] diverse-kinds [in the vineyard]. M. Kil. 5:8 (A~D: B. Shah. 144b, B. B.B. 156b, Y. Kil 1:1 (26d))

M. Kil. 5:8 consists of two parts, A~D and E-K, which may be distinguished from one another by the language of their apodoses. A~D concerns the sanctification of vines by the growing of another kind in the vineyard, and its operative language is qds/ l' qdf. E-K determines whether or not certain kinds of plants are considered diverse-kinds in a vineyard, and its apodoses read kl'yml'ynn kl'ym +I- bknn). A-D is composed of a well-balanced dispute at A-C (with A in the formulary pattern of M. 5:5A, 5:6A, 5:7C), with D glossing C. According to D the dispute concerns whether or not one who allows useless plants, such as thorns, to grow in a vineyard thereby sanctifies the vines. Eliezer says that he does sanctifY the vines, for any kind that he allows to grow is considered to be diverse-kinds in the vineyard. Sages, on the other

49 Iris pallida, of the iris family (lradaceae) For identification of all plants, cf. Feliks, Mar'ot HaMishnah. 50 Hedera helix, of the aralia family (Araliaceae). 51 Lilium candidum, of the lily family (Liliaceae). 52 For Geniza fragments, c£ Zachs, I, p. 265, on l. 26. 53 TK, II, p. 631, on 11. 52-53. 54 Cannabis sativa, of the nettle family (Urticaceae; so Post, s.v. Cannabis. Cf. also Feliks, Maro't HaMishnah, p. 131, who identifies the plant as belonging to Cannabinaceae. 55 Cynara scolymus, of the composite family (Compositae).

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hand, maintain that the vines are sanctified only by a kind which is usually allowed to grow, i.e., a kind which is beneficial to the owner (D), for only then does it appear as if the owner wishes the other kind to grow in the vineyard. According to Eliezer, then, the actual growth of diverse-kinds determines the status of the vines, while sages say that one sanctifies the vines only when one desires the diverse-kinds to grow, and thus one may allow certain kinds to grow without sanctifying the VInes. E-K consists of a list of three plants at E+G (glossed by F), a balanced dispute concerning another plant at H-J, and a declarative sentence dealing with a fifth plant at K. According to E+G iris, ivy, and the white lily are not considered diverse-kinds in a vineyard, apparently because they serve no useful purpose for the owner (following Rabad, Maim., Code, Diverse-kinds 5: 19). E+G then illustrates the position of sages in C-D (and E-K is related to A-D). F states that plants grown for the sake of their seeds are also not considered diverse-kinds in the vineyard. The reasoning behind this rule is difficult, for presumably any kind of plant is considered diverse-kinds in a vineyard (c£ the emendation of GRA). The point ofF is perhaps analogous to that of D, maintaining that since the owner desires the seeds but not the plants themselves, the latter are not considered diverse-kinds in a vineyard. Alternatively, some manuscripts (perhaps following T.) read F as referring to E. F then states that even though the three plants of E are grown for the sake of their seeds, they are not considered diversekinds in the vineyard because they are not usually allowed to grow (Rabad). 56 The dispute of H-J apparently concerns whether or not hemp is grown primarily for the sake of its seeds or for its plant. Tarfon maintains that hemp is grown mainly for its seeds, which produce an oil, and therefore is not considered diverse-kinds in a vineyard (F). Sages, however, say that hemp is grown primarily for its fibers, which are used in the manufacture of rope and clothing, 5 7 and thus is considered diverse-kinds in the vineyard. 58 K concerns the globe artichoke, of which 56 For Rabad's views cf. Lieberman, TK, II, p. 632, on II. 52-53. It is not clear to me, however, whether these plants would be grown for the sake of their seeds. For further discussion of the various explanations of F presented by the commentaries, cf. MR and TK, II, pp. 631-633, on II. 52-53. 57 For the uses of hemp, cf. Feldman, S.imhi HaMishnah, pp. 279ff., and Feliks, Mar'ot HaMishnah, p. 131. 58 Alternatively, the dispute concerns whether hemp is considered a tree or an herb.

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both the leaves and flowers may be eaten. 59 The point of K apparently is that the plant is grown primarily for the sake of its leaves, and therefore is considered diverse-kinds in a vineyard. A. (1) Chrozophorae,60 and (2) spurges, 61 and (3) cudweed (brk:u!Jyr), 62 and (4) muscari, 63 and (5) dyer's reseda, 64 and (6) saffron, 65 B. and (7) a globe artichoke [= M. 5:8K] and (8) ammi, 66 and (9) mallow,67 C. and (10) savory, 68 and (11) hyssop, 69 and (12) thyme/ 0 D. and (13) chate melons, and (14) gourds, and (15) watermelons, and (16) musk melons, and (17) a cowpea, E. [even though they are] kinds of [plants grown for the sake of their] seeds, F. lo, they are [considered] diverse-kinds in the vineyard. T. Kil. 3: 12c (p. 216, 11. 49-53)

Tarfon maintains that the plant has the appearance of a tree, and so is not considered diverse-kinds in a vineyard. Sages, on the other hand, say that since the leaves of hemp sprout direcdy from its roots it is considered an herb (T. 3: 15), and thus is considered diverse-kinds in a vineyard. While this explanation of the dispute is plausible, it requires a reading of M. in the light ofT. 3:15, while we prefer to attempt to explain M. in terms of its own issues. 59 Feliks, Mar,ot HaMishnah, p. 127. 6°Chro;:,ophora tinctoria, of the spurge family (Euphorbiaceae). Cf. Low, I, pp. 595ff., TK, II, p. 549, on 1.11, and Feldman, pp. 324ff. 61 Euphorbia tinctoria, of the spurge family (Euphorbiaceae). Cf. Low, I, pp. 597ff., cited by Lieberman, TK, II, pp. 549ff., on l. 12, who gives a full discussion of this identification. Cf. also Feldman, p. 22. 62 Gnaphalium luteo-album, of the composite family (Compositae). This is the identification tentatively made by Low, IV, p. 506. Feldman, pp. 319f., rejects this identification and lists various other possibilities, concluding that the plant has not been identified with any certainty. 63 Muscari comosum, of the lily family (Liliaceae). Cf. Low, II, pp. 184f. (cited by Lieberman, TK, II, pp. 548f., on l. 7), and Feldman, pp. 159-160. 64 Reseda luteola, of the mignonette family (Resedaceae). Cf. Low, III, p. 130 (cited by Lieberman, TK, II, p. 630, on l. 50), Feldman, pp. 339f., and Feliks, Mar,ot HaMishnah, p. 139. 65 Crocus sativus, of the iris family (Iridaceae). Cf. Low, II, pp. 7ff., Feldman, pp. 322f., and Feliks, Mar,ot HaMishnah, p. 75. 66 Ammi, of the parsley family (Umbelliferae). Cf. Low, III, p. 421 (cited by Lieberman, TK, II, p. 630, on l. 50). 67 Cf. M. 1:8. 68 Satureia thyumbra of the mint family (Labiatae). Cf. Low, II, p. 103, Feldman, pp. 29lff., and Feliks, Marot HaMishnah, p. 90. 69 Origanum maru, of the mint family (Labiatae). C. Low, II, pp. 84ff., and Feldman, pp. 295ff. For English name see Feliks, Mar'ot HaMishnah, p. 8, who gives the Latin name as Mqjorana .ryriaca. 70 1hymus capitatus, of the mint family (Labiatae). Cf. Low, II, p. 77, Feldman, pp. 3llff., and Feliks, Mar'ot HaMishnah, p. 123.

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G. (18) Iris, and (19) iv;~ and (20) a white li!Y H. are kinds of [plants grown for the sake of their] seeds, I. and are not [considered! diverse-kinds in the vinryard [= M. Kil. 5:8E-G]. J. R. Dosethai b. Judah says, "Kinds of grasses [are considered) diversekinds in a vineyard." T. Kil. 3:13 (p. 216, 11. 52-53) K. (21) A cat-tail flag/' and (22) a juncus, 72 and (23) a papyrus p1ant, 73 L. and everything which grows in the dirt [i.e., in meadow-grass (Lieberman)), M. are kinds of grasses, N. [and) lo, they are [Erfurt: are not) [considered) diverse-kinds in the vineyard. T. Kil. 3:14 (pp. 216-217, 11. 53-54) (Y. Kil. 5:8 (30a)) 0. (24) Reeds/ 4 and (25) alhagi/ 5 and (26) the hawthoms/ 6 and (27) buckthorns, 77 P. are kinds of trees, Q and are not [considered) diverse-kinds in the vineyard. R. This is the general rule: Every [plant) which sends out its leaves from its base, lo, this is [considered] an herb (yrq). S. And every [plant] which does not send out its leaves from its base, lo, this is considered a tree. T. Kil. 3:15 (p. 217, 11. 55-57) (0-Q; B. Erub. 34b, Y. Kil. 5:8 (30a)) T. (28) squill78U. R. Ishmael [Erfurt: Simeon] says, "It is [considered] diverse-kinds in the vineyard." V. And sages say, "It is not [considered] diverse-kinds in the vineyard." W. (29) Dodder 79X. R. Tarfon says, "It is not [considered] diverse-kinds [in the vineyard)." Y. And sages say, "It is [considered) diverse-kinds [in the vineyard)."

71 Typha angustata, of the cat-tail family (Typhaceae). Cf. Low, I, p. 579 (cited by Lieberman, TK, II, p. 633, on 11. 53-54), and Feldman, pp. 27ff. For English name, cf. Post, p. 314. 72 ]uncus, of the rush family (Juncaceae). C( Low, I, p. 572, and Feldman, pp. 17ff. 73 Cyperns papyrus, of the sedge family (Cyperaceae). Cf. Li:iw, I, p. 569, Feldman, pp. 320ff., and Feliks, Mar'ot HaMishnah, p. 28. 74 Arundo donax, of the grass family (Graminae). Cf. Li:iw, I, p. 663, Feldman, pp. 28lff., and Feliks, Mar'ot HaMishnah, p. 132. 75 Cf. T. 1:12. 76 Cf. M. 1:4. 77 Lycium europaeum, of the nightshade family (Solanaceae). C( Low, IV, p. 28, Feldman, pp. 23lf., and Feliks, Mar'ot HaMishnah, p. 11. 78 Cf. M. 1:8. 79 Cf. T. 1:12.

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Z. Said R. Tarfon, "If [it is considered] diverse-kinds in the vineyard, let [it be considered] diverse-kinds [when planted] with seeds. AA. "And if it is not [considered] diverse-kinds [when planted] with seeds, let it not be considered] diverse-kinds in the vineyard." T. Kil. 3:16 (p. 217, 11. 57-60) (W-Y: B. Shah. 139a) BB. (3) Caper80CC. House of Shammai say, "It is [considered] diverse-kinds [Erfurt, first printed ed. omit:] in the vineyard." DD. House of Hillel says, "It is not [considered] diverse-kinds." EE. And both agree that [the caper] is liable in [respect to the laws of] 'orlah. T. Kil. 3:17 (p. 217, 11. 60-61) (B. Ber. 36a, Y. Kil. 5:8 (30a)) T. Kil. 3: 12c-17 complements M. 5:8E-K with a large construction concerning whether or not certain plants are considered to be diversekinds in a vineyard. T. consists of three major subunits, A-I, J-N, and 0-EE. A-I lists twenty kinds of seeds that either are or are not considered diverse-kinds in a vineyard. J-N then discusses the status of three kinds of grasses that grow in a vineyard, and 0-EE concerns whether or not seven kinds of plants are treated as trees and are thus not considered diverse-kinds in a vineyard. T. therefore discusses thirty plants in all. A-I complements M. 5:8F by contrasting those kinds of seeds that are considered diverse-kinds in a vineyard (A-F) with those that are not so considered (G-I) (Lieberman). 81 A-F lists seventeen plants, which may be arranged in sublists of six (A), three (B), three (C), and five (D). The five trailing-plants of D, 82 however, are clearly not grown for the sake of their seeds, and so apparently do not belong on the list. The remaining twelve plants are all presumably grown for their seeds. Four of the six plants of A (l-2, 5-6) are grown for their dyes. 83 The identification of brkwyyr (3) as cudweed, an herb, is tentative. Muscari (4) is grown for its edible bulbs. It is possible, then, that plants 3 and 4 do not belong on the list of A, so that A should contain four plants and A-D should list ten in all. 8°Capparis spinosa, of the caper family (Capparidaceae). Cf. Low, I, p. 323, Feldman, pp. 255f., and Feliks, Mar>ot HaMishnah, p. 118. 81 TK, II, p. 632, on ll. 52-53. 82 These plants frequently appear together in M.- T. Kil. C£ M. 3:4, T. 2: l 0-ll. 83 For more information concerning these and other plants, refer to the sources given in the notes.

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The three plants of B are all grown for use as food. The globe artichoke, the leaves and flowers of which are edible, is mentioned in M. 5:8K as being considered diverse-kinds in a vineyard. T. then perhaps contrasts the globe artichoke with the plants of G, so relating M. 5:8K to M. 5:3E-G. Ammi (8) is used as flavoring, 84 while mallow is similar to the globe artichoke in that both its leaves and its flowers may be eaten. 85 All of the plants of C belong to the mint family (Labiateae), and so are grown for use as spices. G-1 then cites M. 5:8E-G (reading M. 5:8F as referring to M. 5:8E), saying that iris, ivy, and white lily are kinds of seeds, and are not considered diverse-kinds in the vineyard. A-1 may read M. 5:8A-D into M. 5:8F86 in order to qualifY the latter. T's point then is that although the plants of both A-D and G are kinds of seeds, the former are beneficial to the owner and are considered diverse-kinds in the vineyard, while the latter are not usually allowed to grow and thus are not so considered. J-N consists of Dosethai b. Judah's ruling at J, followed by a list at K+M-N, which is perhaps glossed by L. Dosethai b. Judah rules that kinds of grasses are considered diverse-kinds in a vineyard. K + M-N then either illustrates his rule, or, according to the reading of Erfurt Ms., presents exceptions to it, following the pattern of A-1 (Lieberman)Y All of the plants of K grow in or near water, so that L simply generalizes the rule of K. 0-EE is composed of 0-Q, a list of trees, R-S, a well-balanced general rule for distinguishing between trees and herbs, and T-EE, a series of three disputes (T-V, W-AA, and BB-EE) concerning whether certain plants are considered trees or herbs. 0 lists four plants that are regarded as trees and so are not considered diverse-kinds in a vineyard. 88 These plants are treated as trees either because their leaves do not come out of their roots (R-S), or because they have hard stems (Lieberman). 89 R-S then differentiates between herbs and trees, ruling

84 Cf. Pliny (Historia Natura/is, 20.163 [Loeb ed., trans. Jones, v. 6, p. 97]), who states that ammi grains were sprinkled on bread or used as flavoring. 85 Feliks, Mar'ot HaMishnah, p. 49. 86 It makes no difference here whether or not F is read as being separate from E, for either understanding of F yields the point that all kinds of seeds are considered diverse-kinds in a vineyard. 87 TK, II, p. 632, on II. 52-53. 88 Cf. Maim., Code, Diverse-Kinds 1:6, who rules that trees are considered diverse-kinds only in respect to cases involving grafting. 89 TK, II, pp. 634f., on I. 55.

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that plants with leaves coming direcdy out of their bases or roots are considered herbs, while those with leaves coming out of other parts (e.g., branches) are regarded as trees. 90 In T-V Ishmael and sages dispute concerning whether squill is considered an herb or a tree. Squill is a bulbous plant with a two-part growth-cycle. In late summer it sprouts a stem containing many flowers. When the fruits of the plant ripen and its seeds scatter, the stem withers and dies, and all that remains of the plant is the underground bulb. In the fall leaves then sprout up direcdy from the bulb. 91 Ishmael apparendy maintains that squill is an herb because its leaves grow out of its base in the fall, while sages say that because of its summer stem squill is considered a tree. 92 W-AA consists of a dispute between Tarfon and sages at W-Y, followed by an argument of Tarfon at Z-AA that appears to be the beginning of a debate. Sages, however, are not assigned a response to the argument, so that the redactor of W-AA appears to favor Tarfon's position. 93 The dispute of W-Y deals with dodder, a parasitic plant that abandons its own roots upon latching onto a host plant. 94 Tarfon perhaps reasons that dodder is considered a tree because once it becomes attached to the host its leaves do not appear to come out of its base. Sages, though, maintain that dodder is considered an herb, 95 presumably because its leaves originally grow out of its roots. Tarfon then determines the status of the plant on the basis of its appearance, while sages take account of its actual process of growth. In Z-AA Tarfon argues that sages' views are inconsistent, for while they do not regard dodder as being diverse-kinds among seeds (thus considering dodder to

90 Theophrastus (cited by Lieberman, Hellenism in Jewish Palestine, p. 181 [Gereboff, Tarfim, p. 48, n. 7], and TK, II, p. 636, n. 81) draws a similar distinction between herbs and plants (Historia Plantarum, 1.3.1 [Loeb ed., trans. Hort, I, pp. 23-25]): A tree is a thing which springs from the root with a single stem, having knots and several branches, and it cannot easily be uprooted; for instance olive fig vine. A shrub is a thing which rises from the root with many branches; for instance, bramble Christ's thorn. An under-shrub is a thing which rises from the root with many stems as well as many branches; for instance, savory rue. A herb is a thing which comes up from the root with its leaves and has no main stem, and the seed is borne on the stem; for instance, corn and pot-herbs. 91 Cf. Feldman, pp. 23f., and Feliks, Mar'ot HaMishnah, p. 54. 92 Cf. M. l :8, where squill is considered a tree in the context of grafting. 93 Cf. Gereboff, Tarfon, p. 28. Gereboff also notes that B. perhaps drops Z-AA in order to improve T. 94 Cf. T. l:ll. 95 Cf. T. l: ll, where dodder is assumed to be an herb in the context of grafting.

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be a tree), they do regard it as being diverse-kinds in a vineyard (thus treating it as an herb). The view attributed by Tarfon to sages, which states that dodder is considered to be diverse-kinds among seeds, is not found anywhere else in M.-T. 96 The Houses-disputes at BB-DD (which is glossed by EE) concerns caper, which, like squill, has a two-part growth cycle. During the summer its leaves and flowers grow on branches. The latter then dry up and disappear, 97 and a new stem sprouts from the roots in spring. 98 House of Shammai apparently consider caper to be an herb because its leaves and flowers grow directly from the base of the plant in spring. House of Hillel, on the other hand, maintain that because the plant grows branches in the summer it is regarded as a tree. 99 According to EE both sides agree that caper is considered a tree in respect to the laws of 'orlah, so that EE effectively brings House of Shammai over to the position of House of Hillel. W. He who allows thorns to grow in the vineyardX. R. Eliezer says, "He has sanctified [the surrounding vines of the vineyard] [= M. 5:8A-B], Y. [GRA, Ne~iv 100 reverse C and E) "as it is written, [1he seed] which you have sown (Dt. 22: 9)" Z. And sages say, "1he seed (Dt. 22:9), AA. excluding He who allows thorns to grow in the vineyard." Sifre Dt. 230f (ed. Finkelstein, p. 263, 11. 6-8) Sifre Dt. 230[, citing M. 5:8A-B, provides proof-texts from Dt. 22:9 for both sides of M.'s dispute. In X-Y Eliezer's view that thorns that are allowed to grow in a vineyard sanctify the vines is supported by the phrase Which you have sown. Since this phrase on the surface adds

96 Cf. Gereboff, Taifon, p. 29. Gereboff also notes that according to Feldman (p. 353; perhaps following Rashi and R. Gershom) kswt may alternatively refer to Humulus lupulus, of the netde family (Urticaceae), or hops. Hops are cones that grow on vines and resemble grape clusters. According to his interpretation the dispute concerns whether hops are considered diverse-kinds in the vineyard because they are similar in appearance to grapes. But cf. Feliks, Mixed Sowing, p. 146, who opposes this identification on the grounds that T. 1:11 clearly refers to a parasitic plant, which a hop is not. 97 The branches, however, may also harden and remain. Cf. Feliks, Plant World r!f the Bible, p. 132. 98 Ibid. Cf. also Low, I. p. 327 (Lieberman, TK, II, p. 636, n. 81). 99 Alternatively, the disputes dealing with dodder and alhagi may concern whether or not they resemble trees. Cf. Lieberman, TK, II, pp. 636ff., on I. 60. We prefer the interpretation given above, however, for M.-T. offers no criterion besides that of T. 3:15 for distinguishing between trees and herbs. 100 Cf. also Maim., Comm. to M. Kil. 5:8.

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nothing to the preceding phrase, The seed, it is taken to include every plant which is allowed to grow among the plants which sanctity the vines (Hillel). Sages' view that the thorns do not sanctify the vines is supported in Z-AA by the phrase The seed, which is understood to include as plants which sanctity the vines only those plants which one usually allows to grow. According to the alternate reading of GRA and Ne~iv, Eliezer's view is supported by the phrase The seed, which is taken to include all plants, while sages' opinion is supported by the phrase VVhich you have sown, which is understood to exclude everything which one would not normally allow to grow.

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Chapter six presents an essay dealing with the relationship between a trained vine and its supporting structure. M. discusses this question in a logical sequence, considering first the structure which actually supports the vine (M. 6:1 +2A-C [with M. 6:2D-F appended]), then that part of the structure which is not covered by the vine (M. 6:3-5+6+7), and finally those parts of either the vine or structure which project beyond the whole (M. 6:8-9). The chapter opens (M. 6: l-2A-C) and closes (M. 6:6+ 7+8+9) with a discussion of the espalier, or row of trained vines, and treats at its center the single trained vine (M. 6:3-5). The chapter logically begins with the definition of an espalier as a row of five vines trained on a fence (M. 6: 1). Like a vineyard, an espalier is allowed four arnot as its area of tillage. The Houses then dispute whether these four arnot are measured from the vines or from the fence, i.e., whether the former or the latter constitutes the principal part of the espalier. This dispute is based on the Houses-dispute of M. 4:5, which concerns whether one (House of Shammai) or two (House of Hillel) rows of vines form a vineyard. House of Shammai reason here that the vines are regarded as being primary to the espalier, for they maintain that the row of vines itself forms a vineyard and would thus be allowed four arnot even without a fence. House of Hillel, on the other hand, maintain that the espalier's chief component is the fence, without which, in their view, the row of vines would be allowed the area of tillage of a single vine, six handbreadths. M. 6:2A-C then augments M. 6: 1 with a discussion concerning the area of tillage which is allowed to an espalier planted on a terrace, and is itself complemented by M. 6:2D-F, which discusses another problem related to planting vines on a terrace. The attention of M. now turns to that part of the structure which does not support the vine. The discussion of this part of the structure is opened by M. 6:3-5, a subunit characterized by its distinctive formulary pattern (hrndlh, at M. 6:3A, D, 6:4A), and by its subject, the single trained vine. The issue of M. 6:3-5 concerns whether the entire supporting structure is considered to be merely an extension of the vine (as in the case of the espalier), so that one may not sow even under

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that part which is not covered by the vine, or whether the structure retains its own aspect, and one may sow under the part which does not serve the vine. M. at first distinguishes between an inanimate structure (e.g., a latticework of laths), which is considered to be entirely "taken over" by the vine trained upon it, and an animate structure (e.g., a fruit tree), which keeps its own aspect. A glossator, however, redraws this distinction, contrasting instead a non-fruit-bearing structure (e.g., a barren tree), which is regarded as an extension of the vine, and a fruit-bearing structure (e.g., a fruit tree), which is not so regarded. M. 6:6+7 then raises the question of M. 6:3-5, i.e., whether one may sow under that part of the structure which does not support the vine, with respect to uncovered areas in the middle (M. 6:6) or at the end (M. 6:7) of an espalier's wall. M. rules that one may sow at such spots along the wall after allowing the vines their area of tillage, and so disagrees with the rule of M. 6:3-5, according to which one would not be able to sow at all along any part of the wall (since the latter is neither animate nor fruit-bearing). M. 6:6+ 7 therefore appears to be interested not in the issue of the status of the supporting structure, but in the entirely different question of separating the vines from the other kind in order to prevent the appearance of diverse-kinds. We note that M. 6:7 follows the formulary pattern of M. 6:2A ('rys lrywi mn X), so that the two pericopae were originally redacted together. A redactor then separated the two pericopae, which are not related to each other in substance, by inserting between them M. 6:2D-F, which augments M. 6:2A-C, and M. 6:3-5+6, which (as we have just seen) discusses the same issue as does M. 6:7. Reversing the formulary pattern of M. 6:7 ('rys lrywi mn X [M. 6:7] vs. X lrywi mn h'rys [M. 6:8A, 6:9E]), M. 6:8-9 concludes the chapter with a sub-unit dealing with the projections of an espalier. The issue of the sub-unit concerns whether part of the espalier which projects beyond it may nevertheless be regarded as belonging to an espalier, so that one may not sow under such a projection. Reeds projecting from the supporting structure, on the one hand, do not at all serve the vines and so are considered to be separate from the espalier. A projecting vine-blossom, on the other hand, will eventually produce grapes, and therefore is regarded as part of the espalier.

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6:1 A. What is an espalier ('rys)? B. He who plants a row of five vines beside a fence that is ten handbreadths high, or beside a ditch that is ten handbreadths deep and four wide--C. they allow it its area of tillage of four arnot. D. House of Shammai say, "They measure four amot from the base of the vines to the field." E. House of Hillel say, "From the fence to the field." F. Said R. Yohanan b. Nuri, "All err who say so [tr. Danby]. G. "Rather, [the four amot are measured as follows:] If there are four amot from the base of the vines to the fence, they allow it its area of tillage and he sows the rest." H. And how much is the area of tillage of a [single] vine? I. Six handbreadths in all directions. J. R. 'Aqiva says, "Three [handbreadths]." M. Kil. 6:1 (A-B [until "vines"]: Y. Kil. 4:1 (29b); J: Y. Kil. 7:1 (30d))

M. Kil. 6: 1 opens the chapter's discussion of the espalier by dealing with the distance that must separate the vines from another kind. M. begins with a question at A, followed by a mildly apocopated sentence (in the he-who-formulary pattern) at B-e. The latter, however, does not respond to A, for it concerns not the definition of an espalier but the extent of its area of tillage. Furthermore, B-C contains both a protasis and an apodosis, and so can stand without A. It is possible that A was originally answered by a phrase such as "A row of five vines beside a fence, etc.," which was then absorbed by B-C when the latter was attached to A. We note that B follows the formulary pattern of M. 4:5A ("He who plants a row of five vines"). Since M. 6:1B-C and M. 4:5A are both followed by Houses-disputes, it is possible that the two pericopae were redacted together. At D-E a Houses-dispute glosses B-C, with the superscription of the dispute included in the opinion of House of Shammai. In its primary, balanced formulation, the dispute probably read 'yqr vs. gdr. 1 Yohanan b. Nuri glosses B-E at F-G, and so attests it to Usha (or late Yavneh). H-J then glosses F-G with a balanced (six vs. three) Yavnean dispute concerning a secondary issue. B-C states that a row consisting of five vines trained on a fence or in a ditch of a specified size (i.e., according to A, an espalier) must be

1

Neusner, Pharisees, II, p. 70.

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separated from another kind by an area of tillage of four arnot, or the area of tillage of a vineyard. Now we have already seen that, while House of Shammai consider a row of five vines to be a vineyard, House of Hillel require a vineyard to contain two rows of vines (M. 4:5A-D). House of Hillel would presumably agree here that a row of trained vines is to be treated as a vineyard, reasoning that the structure upon which the vines are trained, which forms an autonomous domain, joins the individual vines together to constitute a single group of vines (HD toT. 4:1). At D-E the Houses dispute concerning the secondary problem of where to allow the four arnot of the espalier. According to Maimonides (Cornrn.) and GRA the dispute concerns which part of the espalier is considered to be primary to it. House of Shammai rule that one measures the four arnot from the base of the vines to the field (both of which lie on the same side of the fence or ditch). 2 Since the vines themselves are considered to be a vineyard, they, rather than the fence (or ditch), are considered to be primary to the espalier. House of Hillel, on the other hand, maintain that, since the vines are considered to be a vineyard only when they are trained on a fence, the latter is considered to be the primary part of the espalier, and the four arnot are measured from the fence to the field. In F-G Y ohanan b. Nuri revises B-E so that the position of House of Hillel in E does not conflict with House of Hillel's view (M. 4:5C-D) that a single row of vines does not form a vineyard. According to Yohanan b. Nuri the four arnot mentioned in connection with the row of vines refer not to its area of tillage (C), but to the area between the vines and the fence. If this area measures four arnot, then the row is allowed its area of tillage (= six handbreadths []]), and the rest of the space may be sown. An area measuring less than four arnot may not be sown, presumably because the other kind would then not cover enough area and so would produce the appearance of diverse-kinds.

2 Alternatively, Maimonides (Code, Diverse-Kinds 8:2; cf. also Sens), following Y., maintains that the fence or ditch lies between the vines and the field. Since, however, the vines are trained on the fence, the latter is not considered a partition, and the area of tillage must still separate the vines from the other kind on the opposite side of the fence. KM supports this interpretation by arguing that, according to our first interpretation, House of Hillel would hold the unlikely opinion that the foliage of the vines would be further removed from the field than would be the base of vines. C£ also Ridbaz (ad. loc.) for a further argument against our first interpretation. B-C does not, however, indicate that the fence lies between the vines and the field, and we therefore see no reason to interpret it in this manner.

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Yohanan b. Nuri thus does not discuss an espalier at all (since it is not likely that he would permit sowing under trained vines), but rather refers to the outer space of a row of vines, 3 which has been defined as the space between the vineyard and the fence (M. 4:2L). He thus supplements House of Hillel's view (M. 4: IF) that the outer space of a vineyard must contain twelve arnot in order to be sown, ruling that the outer space of a row maybe sown if it contains four arnot. Although Yohanan b. Nuri does not present House of Shammai's opinion, it is clear that, since they regard a row of five vines as a vineyard, they would require an outer space of a row to contain sixteen arnot in order to be sown (M. 4: l E). Yohanan b. Nuri thus resolves the conflict between the two views of House of Hillel by revising B-F so that it deals with the outer space, rather than the area of tillage, of such a row. H-J glosses F-G with a dispute concerning the secondary issue of the area of tillage of a single vine. While the anonymous opinion in I holds that this area of tillage measures six handbreadths in each direction (= two arnot square), 'Aqiva maintains that it measures only half as much, or three handbreadths (= one amah square). 'Aqiva's rule is consistent with his view that trailing plants are allowed no more space than are vegetables (M. 3:6E-G), for, according to his opinion, the vine's area of tillage is equal in size to a vegetable's autonomous domain (when sown with vegetables of another kind) (= one amah square; M. 3:3F). 'Aqiva apparently maintains that a vine is allowed no more space for its area of tillage than is required to constitute an autonomous domain for vegetables. T. Kil. 4:1-7a below consists of two parts, T. 4:1-2, which comments on M. 6:1, and T. 4:3-7a, an autonomous subunit dealing with rules concerning the construction of partitions. T. 4: la comments on M.'s discussion of the area of tillage of an espalier. T. 4:1 b-2 (repeated by T. 4:9b) then continues this interest in the area of tillage, asking whether vines need be allowed their area of tillage if they are already separated from another kind by a partition. T. 4:3-7a supplements the foregoing by presenting a separate set of rules that, although formally diverse, all pertain to the construction of partitions. The point ofT. is that a partition must be so constructed that it clearly appears to separate different parts of a field. T. 4:3 lists the types of materials from 3 Cf. M. 6:3-4, Maim., Comm. (M. 6:1), R. Yehosaf Ashkenazi (cited by MS, M. 6:1), and Lieberman, TK, II, p. 637, on I. I.

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which a partition must be built. T. 4:4-5 then supplements T. 4:3 with sayings of Eleazar and Y ose, who discuss whether, because of the nature of their materials, certain kinds of supporting structures of an espalier may serve as partitions, and so separate the vines of the espalier from another kind on the other side. We note that although both T. 4:4 and M. 6: 1 deal with an espalier, the former does not appear to serve as a comment on the latter, for T. 4:4 is interested in the materials of the espalier's supporting structure, and not in the vines of the espalier. T. 4:6, discussing a partition composed of sections, concerns how large a breach may separate the sections without invalidating the partition. Finally, T. 4:7a, returning to the concerns of T. 4:3, presents a dispute between an anonymous opinion and y ose b. Judah as to whether a partition is considered to be adequate if its materials extend in only one direction (i.e., either perpendicular or horizontal to the ground; e.g., a partition of reeds [anonymous opinion]), or whether a valid partition must be constructed out of materials extending in both directions (e.g., a partition of mats [Yose b. Judah]). A. Rabban Gamaliel and his court ordained (htqynw) that they shall allow a distance [of] four amot from the base of the vines to the fence. T. Kil. 4:1a (p. 217, ll. 1-2)

According to T. Gamaliel and his court ordained that one must separate vines from a nearby fence by four arnot, presumably in order to sow another kind between them. 4 T. thus attributes to Gamaliel and his court the rule of Yohanan b. Nuri in M. 6:1F-G (Iiebermanl

B. He who makes a partition for the vineyard [measuring] ten [handbreadths] high and four wide, has annulled (btl) the [requirement of allowing] four amot [as the area of tillage] of the vineyard. T. Kil. 4:1b (p. 217, ll. 2-3)

4 Alternatively, the four amot mentioned in A refer to the area of tillage of the vines (Maim., Comm. to M. 4:3 [cited by Lieberman, TK, II, p. 637, on I. 1], MB). The case discussed in A then concerns vines which are separated from another kind by a fence, and Gamaliel and his court rule that even in this instance one must allow the vines their area of tillage. The reasoning behind A would be that the partition does not annul the requirement of the area of tillage (cf. T. 4: l b-2), perhaps because a partition is not deemed to separate vines, which are trailing plants, from another kind. T. 4:la would then complement T. 4:lb-2, which presents the opposing view. We regard our first interpretation to be the more plausible one, however, both because it places T. in an appropriate context (that of M) and because T. nowhere mentions the issue of area of tillage. 5 TZ, p. 217, on ll. l-2, and TK, II, p. 637, on l. l.

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C. He who makes a partition for the vine [measuring] ten [handbreadths] deep [Erfurt, GRA, and Lieberman6 read: high) and four wide, has annulled (btl) the [requirement of allowing six] handbreadths [as the area of tillage] of the vine. T. Kil. 4:2 (p. 217, ll. 3~4) (B--e: T. Kil. 4:9b) T. 4: 1b consists of a pair of well-balanced declarative sentences. According to T. the area of tillage, or the area which separates a vine from another kind, need not be allowed to a vine (B) or a vineyard (C) which is already set apart from the other kind by a partition, since the partition is regarded as adequately separating the two kinds. T. complements M. 6: 1's rule concerning the separation of two kinds growing on the same side of the fence with a discussion of separating the two kinds that grew on opposite sides of a partition. A. He who makes a partition for the vineyard [measuring) ten handbreadths high and [with) its width not [measuring] four [handbreadths], has not annulled [Vienna omits the following until "six handbreadths"; first printed ed:) the [requirement of allowing] four amot [as the area of tillage] of the vineyard. B. He who makes a partition for the vine [measuring] ten handbreadths high and [with) its width not [measuring] four [handbreadths), has not annulled the [requirement of allowing) six handbreadths [as the area of tillage] of the vine. T. Kil. 4:9b (p. 219, 11. 33~34)

T. 4:9b simply restates the rules of T. 4:1 b-2 in a negative manner. I cannot account for the location ofT. 4:9b in T. Chapter Four, for this pericope is not at all related to the pericopae surrounding it (e.g., T. 4:8-9a, which discusses sowing in the gaps of an espalier7). A. With all [kinds of materials) they make a partition [T. Sheb.: enclosures (shryn)]: B. with (1) stones, and (2) mats, (3) straw, and (4) reeds, and (5) stalks, C. even [with] three ropes [strung) one above another,

T(, p. 217, on I. 3. Alternatively, Lieberman (TK, II, p. 642, on I. 31) maintains that, because of the proximity ofT. 4:9b toT. 4:8-9a, both T. 4:9b and T. 4:1b-2 are to be understood in the context of the issue of sowing the gaps of an espalier. It is not at all clear, however, how the two issues (i.e., the issue of the area of tillage with a partition, and that of sowing the gap of an espalier) may be related to one another, and we therefore think that it is more likely that the two questions are to be considered separately. 6

7

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D. provided that there not be between one reed [T. Sheb.: rope] and the next three handbreadths, E. [i.e.,] sufficient [space] so that a kid may enter. T. Kil 4:3 (pp. 217-218, 11. 4-6) (T. Shev. 2:19; A-B(1)-(3): Y. Shev. 3:3; B(3)-(5)+C-D: T. Erub. 2:1; 8 C: Y. Kil. 4:4 (29b); C-D: M. Erub. 1:9a;9 D: M. Erub. 1:10a; 10 D-E: M. Kil. 4:4B-C, T. Kil. 4:6C-D)

T. Kil. 4:3 consists of a superscription at A, a list of five items at B which is augmented by a sixth at C (joined to the foregoing by 'pylw), and D-E, which qualifies B(4) (or, according to T. Shev., C). The point ofT. apparently is that the items listed in B are suitable for use in the construction of partitions (in this context) between diverse-kinds, for such materials clearly appear to divide a field. Three ropes strung above one another similarly form a valid partition (C). D-E, which also appears (in the same context) in M. 4:4B-C and T. 4:6C-D, then comments on B(4), ruling that a partition of reeds must be sufficiently compact, so that it does not contain breaches measuring three or more handbreadths wide, or spaces large enough to allow a kid to enter. A. [Erfurt reverses the order of A-C and D-G] R. Leazar [Erfurt: E1iezer; first printed ed.: Eleazar] says, "An espalier [so Lieberman 11 for flryJ. Erfurt: 'rys] [i.e., trained vines] which he passed over latticework (rypyn), 12 T. Erub. 2: l reads: A A caravan which rested (srth) in the valley and they surrounded it with (I) camels, or (2) pack saddles [so Neusner, HMLP, II, p. 215, (M. Kel. 23:2) for 'qyl], or (3) saddles ('~pwt), or (4) sacks, or (5) reeds, or (6) straw, or (7) stalks, B. even [with] three ropes [strung] one above another~ C. he carries within it [i.e., the enclosed area], D. provided that there not be (l) between one camel and the next [an area]) fully as wide as a camel, nor (2) between one pack-saddle and the next [an area] fully as wide as a pack-saddle, nor (3) between one saddle and the next [an area] fully as wide as a saddle, nor (4) between one reed and its neighbor three handbreadths, [i.e.,] sufficient [space] so that a kid may enter. T. Erub. thus differs from T. Kil. in that it includes additional items which are relevant to its subject-matter and not to that of T. Kil. 9 M. Erub. 1:9a reads: They surround [an area] with three ropes [strung] one above another, provided that there not be between one rope and the next three handbreadths. 10 M. Erub. 1:1 Oa reads: They surround [an area] with reeds, provided that there not be between one reed and the next three handbreadths. 11 TZ, p. 218, on 1. 7, and TK, II, p. 638, on II. 6-7. 12 Following HD, Lieberman (TZ, p. 218, on 1. 7, and TK, II, p. 638, on 1. 7) 8

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B. "and [= omitted by Erfurt] lo, the lattice-work is [considered] as a [valid] partition, C. "provided that there not be between it [i.e., one slat of the latticework] and the next [an area] fully as wide [as the slat itself (HD)]." T. Kil. 4:4 (p. 218, 11. 6-8) D. R. Judah says, "An espalier (h.ryJ.; Erfurt: 'rys) [i.e., trained vines] which he passed over reeds, E. "and [= omitted by Erfurt] lo, [Erfurt adds: the] reeds are [considered] as a [valid] partition, F. "[but] it is necessary that there not be between one reed and the next three handbreadths, G. "[i.e.,] sufficient [space] so that a kid may enter." H. R. Yosah [Erfurt, first printed ed.: Yose] says, "If the reeds were pronged (mdwqmyn) [i.e., split at the top] and he made for them (lhm; Erfurt: 'wtn ["(of) them"]) a plait (pfh) at the top [by running a string through them (Lieberman 13)], it is permitted [i.e., the plaited reeds form a valid partition]." T. Kil. 4:5 (p. 218, 11. 8-11) (F: M. Erub. 1:9a; F-G: M. Kil. 4:4B-C, T. Kil. 4:3D-E; H: T. Kil. 4:6S+U)

T. concerns an espalier, which, because it is constructed out of certain kinds of materials, may also serve as a partition. T. is composed of two sayings, A-C (attributed to Eleazar) and D-G (attributed to Judah), with the latter glossed by Y ose at H. A-C and D-G balance one another, for both consist of nearly identical sentences in mild apocopation (A-B and D-E; rypyn vs. qnym) followed by similar qualifYing clauses (C and F-G [= M. 4:4B-C, T. 4:3D-E]: kmlw'w vs. flfh tphy_m). It appears, then, that both sayings were formulated together. We note that H also appears anonymously at T. 4:6S+U. H is apparently primary to T. 4:4-5, however, since T. 4:6 does not deal specifically with the partition of reeds. We also note, though, that H is not particularly concerned with the espalier of reeds ofT. 4:4-5, and could fit equally well in the context of M. 4:4A-C (with M. 4:4B-C = T. 4:5F-G), which deals simply with the partition of reeds. According to Eleazar and Judah an espalier constructed out of lattices or reeds may serve as a partition and separate the vines on the

identifies rypyn as rppyn, or latticework constructed of willow branches. He also identifies the term with the Greek pt\jf, pt7toc; [mats]. These branches were used because their flexibility allowed them to be shaped to the growth of the trained plants. 13 TZ, p. 218, on 1. 10.

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espalier from another kind on the other side of the structure (Lieberman 14). The point ofT. is that the materials of the espalier appear to separate the vines from another kind, so that the structure may serve as a partition as well. C and F-G then qualifY their respective preceding rules, stating that the espalier must have a certain degree of solidity in order to serve as a partition. An espalier constructed from lattices must not contain gaps wider than the width of the lattice itself (C), while an espalier of reeds may not contain breaches measuring three or more handbreadths wide, or enough space to allow a kid to enter, again so that the partition may appear to separate the different kinds. In H Y ose qualifies D-G, saying that if the reeds are tied together at the top they form a satisfactory partition, even if the reeds are separated by gaps measuring three or more handbreadths wide. The reeds that are tied together in this fashion are not easily breached, so that the partition is valid regardless of the size of the gaps within it. 15 A. The result is (nmit 'wm[r]) [that there are] three measures of the partition: B. (1) All [sections of a partition] which [measure] less than three [handbreadths wide]C. it is necessary that there not be between it [i.e., one section of the partition] and the next three handbreadths, D. [i.e.,] sufficient [space] so that a kid may enter [B. Erub.: may leap headlong (yzdqr hgdy bbt r' f.]. E. (2) And all [sections of a partition] which [measure] three [Erfurt adds: or (w)] three to four [handbreadths wide]F. it is necessary that there not be between it [i.e., one section of the partition] and the next [a space] fully as wide [as one section of the partition], G. so that (kdy) [the measure] of the breaches may not equal [that of] the structure itself (brryn; E. Erub.: 'wmd ["that which stands"] [throughout]). H. [Erfurt, B. Erub. add: If (the measure) of the breaches] exceeded [that of] the structure, I. even opposite the structure it is prohibited [to sow diverse-kinds]. ]. (3) All [sections of a partition] which [measure] four [Erfurt adds: or (w)] from four [handbreadths] upwards [other versions: 16 from four (handbreadths) to four amot, and from four amot to ten (amot)]-

TK, II, pp. 638-639, on I. 7. Alternatively, MB explains that when the reeds are tied together at the top the breaches appear to be openings rather than gaps, so that the partition is considered valid. This interpretation, however, appears to be based on M. 4:4 (which discusses gaps which appear like openings), and does not necessarily follow from the plain sense ofT. 16 For reading of J., cf. Lieberman, TK, II, p. 640, on 11. 14-15. 14 15

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K. it is necessary that there not be between it [i.e., one section of the partition] and the next [a space] fully as wide [as one section of the partition], L. so that [the measure of] the breach[es] may not equal [that of] that which stands. M. If [the measure of] that which stands is [equal to that of] the breach[es], N. opposite that which stands it is permitted [to sow diverse-kinds], 0. but opposite the breach[es] it is prohibited [to sow diverse-kinds]. P. If [the measure of] that which stands exceeded [that of] the breach[es], Q even opposite the breach[es] it is permitted [to sow diverse-kinds], R. provided that the breach[es] do not exceed ten arnot [in width] [B. Erub. reads instead of R: (If the partition) was breached by (a breach) greater than ten arnot, it is prohibited]. S. If the reeds were pronged (rndwqmyn) U.e., split at the top], and he made for them a plait (pfh) at the top [by running a string through them (Lieberman 17)], T. even [if the breaches] exceed ten arnot, U. it is permitted [to sow diverse-kinds opposite the breaches]. T. Kil. 4:6 (pp. 218-219, 11. 11-19) (B. Erub. 16a; A-R: Y. Kil. 4:4 (29b), Y. Erub. 1:8 (9b), Y. Suk. 1:1 (52b); 18 E-K: T. Erub. 2(3): 2a; 19 S+U: T. Kil. 4:5H; S-U: B. Erub. 11 a)

TK, II, p. 639, on ll. 10-11. Y. Kil. 4:4 (29b), Y. Erub. 1:8 (9b), andY. Suk. 1:1 (52b), with minor variations from T. Kil. at many points, all read as follows: A The result is (nmi't cwmr) in regard to] the issue of diverse-kinds: B. (1) All [breaches) which [measure) less than three [handbreadths wide] are [considered] as solid (kstwm). C. (2) And all [sections of a partition] which (measure] [Y. Suk. adds: (from) less than) three to four [handbreadths wide]D. if (the measure of] that which stands exceeds (that of) the breach(es] it is permitted (to sow diverse-kinds on opposite sides of the partition). E. And if [the measure of] the breaches exceeds (that of] that which stands, it is prohibited (to sow diverse-kinds on opposite sides of the partition). F. (3) (If the sections of the partition measured] from four [handbreadths) to ten 17

18

[amot]-

G. if (the measure of] that which stands exceeds [that of] the breach[es], it is permitted [to sow diverse kinds on opposite sides of the partition). H. If [the measure of] the breach[es] exceeds [that of] that which stands, I. opposite that which stands it is permitted [to sow diverse-kinds], J. opposite the breach[es] it is prohibited [to sow diverse-kinds). K. [If the breaches measured] more than ten [arnot], L. even though [the measure of] that which stands exceeds [that of] the breach[es], M. opposite that which stands it is permitted [to sow diverse-kinds], N. opposite the breach it is prohibited (to sow diverse-kinds). All three passages then present a similar pericope concerning laws pertaining to carrying on the Sabbath in an area enclosed by partitions. 19 For the possible readings ofT. Erub., cf. Lieberman, TK, III, p. 318, on ll. 5-6.

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T. Kil. 4:6 A-R is a unitary pericope consisting of a superscnption, A, and three parts, B-D, E-I, and j-R, with the latter glossed by S-U. Each part is composed of a protasis in the pattern kl s"fzn X (B, E, and ]), and an apodosis following the pattern s_ryk . .. kdy (C-D, F-G, and K-L). In addition, the rules of E-G andj-L are supplemented by one or more conditional sentences (H-I, M-0, and P-R, with N balancing 0, and P-Q corresponding to M+O), the apodoses of which all follow the same formulary pattern, kngd h'wmd/ hpnvs_ + 'swrI mwtr. B-D, E-I, and j-R concern a partition that is composed of sections. Each rule discusses how large a gap may separate sections of a particular size if the partition is to be considered valid. B-D states that sections measuring three handbreadths or less in width may not be separated by gaps measuring the same width (i.e., three handbreadths), or by a space large enough to allow a kid to enter (cf. M. 4:4A-C, T. 4:3D-E, for the same rule applied to a partition of reeds). A partition containing gaps of such size would not appear to separate the diverse kinds. E-F then similarly rules that sections measuring from three to four handbreadths wide may not be set apart by breaches equal in width to the sections themselves. G, glossing E-F, explains that the rule of E-F does not allow the measures of the breaches to equal those of the sections of the standing structure of the partition. If, on the other hand, the breaches measure more than do the sections of the standing structure, it is prohibited to sow diverse-kinds on different sides of the entire partition (H-I), for now the partition as a whole does not seem to divide the diverse-kinds, and so is not considered valid. We note that I, in stating that "even opposite the structure it is prohibited," perhaps follows the language of L-R, which distinguishes between sowing opposite the structure and opposite the breaches. The language, however, while appropriate to the context of L-R, has little significance at E-I, which does not make such a distinction. I then could have read simply "it is prohibited." j-L applies the rule of E-G (with a slight variation in language from pnvs_wt to pnvs_ and from bnyn to 'wmd) to the partition made up of sections measuring four or more handbreadths wide. M-0 then discusses the case in which the width of the breaches equals that of the sections, with N-0 taking an intermediate position between prohibiting and permitting the sowing of different kinds on opposite sides of the partition. One may sow diverse-kinds on opposite sides of the standing structure, which itself serves as a partition, but not opposite the breaches, which do not set the diverse-kinds apart. If the width of the sections exceeds

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that of the breaches, then one may sow diverse-kinds even opposite the breaches (P-Q), for the partition as a whole is considered as serving to separate the different kinds. R glosses the foregoing, stating that the rule of P-Q applies only when the breaches measure less than ten arnot in width, presumably because a partition containing a gap of that size no longer appears to serve as a partition (although it is not clear whether one may still sow opposite the standing structure 20). The following chart summarizes the rules of B-R: T.

Measure of Sections

Measure of Breaches

Rule

B-D

less than three handbreadths three to four handbreadths

three or more handbreadths less than that of sections greater than that of sections

prohibited

E-1

j-R

four or more handbreadths

less than that of sections equal to that of sections prohibited opposite breaches less than that of sections

permitted prohibited, even opposite sections permitted permitted opposite sections permitted, even opposite breaches (measuring less than ten amot)

S-U, supplementing R, consists of S+ U, an anonymous version of Yose's saying concerning the partition of reeds (T. 4:5H), and T, which has apparently been interpolated into the pericope in order to relate S+ U to R. In its present context the point of S-U is that a breach measuring more than ten arnot does not invalidate a partition of reeds, provided that the reeds are tied together at the top and so serve to close the breach and to separate the different kinds from one another.

20 Y. Kil. 4:4 (29b), Y. Erub. I :8 (9b), and Y. Suk. I: I (52b) state that if the breach measures more than ten arnot in width it is prohibited to sow diverse-kinds opposite the breaches (cf. n. 18 above).

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A. Every partition which is made [of materials extending] perpendicularly [so Danby21 for fry; lit.: "warp"] and is not made [of materials extending] horizontally [so Danby for 'rb; lit.: woof], B. [or which is made of material extending] horizontally and is not made [of materials extending] perpendicularly, C. lo, this is [considered a valid] partition. D. R. Yosah [Erfurt, first printed ed.: Yose] b. R. Judah says, "It is not [considered a valid] partition unless it is made [of materials extending both] perpendicularly and horizontally." T. Kil. 4:7a (p. 219, 11. 19-21) A. "Every partition which is not [made of materials extending both] perpendicularly and horizontally is not [considered a valid] partition," the words of R. Yose b. Judah. B. And sages say, "[A partition need have only] one of the two things [i.e., characteristics; the partition need only be made of materials extending either perpendicularly or horizontally]." M. Erub. l:lOb (Y. Erub. 1:8 (l9b))

T. consists of A-c, a declarative sentence with a duplicated subject (with A and B balanced: sry + )n 'rb vs. 'rb + )n fry), and Y ose b. Judah's saying at D, which glosses and opposes the foregoing (balancing A+B with fry + 'rb). M. Erub. l:lOb presents the same dispute in a different variation of the dispute form, as we see from the following chart: T Kil. 4:7a

M. Erub. l:JOb

1. Every partition which is made [of material extending] perpendicularly and is not made [of materials extending] horizontally, 2. [or which is made of materials extending] horizontally and is not made [of materials extending] perpendicularly, 3. lo, this is [considered a valid] partition. 4. R. Yosah b. Judah says, "It is not considered a valid partition unless it is made [of materials extending both] perpendicularly and horizontally."

1. (see 5)

21

2. (see 5)

3. (see 5) 4.

"Every partition which is not [made of materials extending both] perpendicularly and horizontally is not considered a valid] partition," the words of R. Yose b. Judah.

Cf. his translation of M. Miq. 6:9.

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(cont.)

T Kil. 4:7a

M. Erub. l:JOb

5. (see 1-3)

5. And sages say, "[A partition need have only] one of the two things [i.e., characteristics]."

M. Erub. 1: 1Ob differs from T. Kil. 4:7 a in presenting the opinions of the dispute in reverse order, for sages gloss Y ose b. Judah's view with the anonymous opinion ofT. 4:7a/A-C. M. Erub. l:lOb also makes no attempt to balance the opposing views. The two versions of the dispute, however, do not differ in substance. The dispute apparently concerns whether a partition appears to separate diverse-kinds if it is composed of materials extending in only one direction. According to A-C the materials of a partition may extend either horizontally (e.g., a partition of three ropes [T. 4:3]; c( TYY toM. Erub. 1:10; MB) or vertically (e.g., a partition of reeds [M. 4:4, T. 4:3]). Yose b. Judah, on the other hand, maintains that a partition is valid only if it is constructed out of materials extending in both directions (e.g., a partition of mats [T. 4:3]), for only then does it have enough surface area to divide the diverse-kinds. Yose b. Judah would then disagree with T. 4:3, which allows a partition to be made out of materials extending in only one direction. We note that A-C has apparently been generated by D, for it is necessary to state that the materials of a partition may extend either horizontally or vertically only in response to the view that they must extend in both directions. 6:2

A. An espalier that projects from [so Danby for ywi mn] a terrace-B. R. Eliezer b. Jacob says, "If he [can] stand on the ground and harvest all of it [i.e., harvest all of the grapes of the espalier's vines], lo, this [espalier] prohibits four arnot in the field [below]. C. "And if not [i.e., if he cannot harvest all of the grapes of the espalier's vines while standing on the ground], [the espalier] prohibits only that [part of the field which lies] opposite [i.e., under] it." D. R. Eliezer [Ox, P, Rosh, 22 MS: Eleazar; L: Leazar] says, "Even ('p) [= omitted by PrJ he who plants one [row of vines (Maim., Comm., Code, Diverse-Kinds 7:6, others)] on the ground and one on the terraceE. "if [the row on the terrace] is ten handbreadths higher [C, Geniza fragment, 23 K, L, Mn, Ox, P, and S omit:] than the ground, it does not combine with it [i.e., with the row on the ground] [to form a vineyard]. 22 23

Cited by Zachs, I, p. 269, n. 9. Ibid., p. 269, on I. 12.

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F. [Mn omits:] "And if not [i.e., if the row on the terrace is not ten handbreadths higher than the ground], lo, this [row on the terrace] combines with it [i.e., the row on the ground] [to form a vineyard]." M. Kil. 6:2

M. consists of two rules, Eliezer b. Jacob's saying concerning the espalier planted on a terrace (A-C), and Eliezer/Eleazar's statement dealing with planting one row of vines on a terrace and another on the ground (D-F, joined to the foregoing by 'p). Both sayings consist of a protasis (A, D) followed by a pair of conditional sentences (B-C, E-F). The two rules appear to be autonomous, however, for they open with different formulary patterns ('rys snw' [A] vs. hnwt' [DJ) and concern different arrangements of vines (espalier [i.e., one row] [A-C] vs. two rows [D-F]). We note that, since the question of terraces is discussed by Eliezer b. Jacob, an Ushan, at A-C, the Eliezer/Eleazar of D-F is probably an Ushan as well. A-C continues the interest of M. 6: 1 in the area of tillage of an espalier, asking whether the same area of tillage, four arnot, is required for an espalier that is planted on a terrace but hangs over the field below. The issue of A-C concerns whether the espalier, because it is planted on a terrace, is considered separate from the field and so does not require four arnot in the field below, or whether, because it hangs over the field, the espalier is regarded as belonging to the latter and so requires its full area of tillage. Eliezer b. Jacob rules in B-C that the criterion for deciding this question is the proximity of the overhanging vines to the field, which is measured in terms of one's ability to harvest the grapes of the espalier. If the vines hang so low that one may harvest all of their grapes while standing in the field, then for all practical purposes these vines may be regarded as if they were planted in the field itself (Maim., Cornrn., Code, Diverse-Kinds, 8:8). That is, the vines of the espalier may produce the appearance of diverse-kinds with the other kind in the field equally as well as if the vines were actually planted in the field itself, and they therefore must be allowed four arnot in the field (presumably measured either from the terrace [Maim., Code, Diverse-Kinds 8:8, MS 24] or from the spot where the vines meet the

24 MS explains that since the vines lean over the terrace, the latter is considered as if it were a fence supporting the vines, so that the four arnot are measured from it (following the view of House of Hillel, M. 6: I E). This view, however, presupposes that M. 6:1 concerns sowing on the side opposite that of the vines of the espalier (cf. our discussion of M. 6: I).

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field 25). If, on the other hand, the vines of the espalier hang so far above the field that one cannot pick all of their grapes while standing in the field, then the espalier is not regarded as if it were planted in the field. One then need allow as its area of tillage only that part of the field that lies directly below the espalier, for only in that area could the vines of the espalier produce the appearance of diverse-kinds with the kind sown in the field. In D-F Eliezer/Eleazar discusses whether or not two rows of vines, one planted on a terrace and the other planted in the field below, combine to form a vineyard (following the definition of a vineyard as two rows, given by House of Hillel, M. 4:5C-D). The issue of D-F concerns whether or not the terrace is considered part of the field. EliezerEleazar rules that if the terrace measures ten handbreadths higher than the field, it forms a domain unto itself (R. Mena in Y. Kil. 6:2; cf. M. 2:8, 5:3; cf. also T. 3:7-8 26) and the two rows do not combine. If, on the other hand, the terrace measures less than the specified height above the ground, then it is considered part of the field and the two rows do combine to form a vineyard. Eliezer/Eleazar thus simply goes over the anonymous law of M. 4:7C-G, concerning two rows of vines that are separated by a fence, and presents it in terms of the question of the terrace. Let us now turn to consider the redactor's view of the relationship between the sayings of Eliezer b. Jacob and Eliezer/Eleazar. If, as we have already shown, the two rulings are autonomous of one another, why did the redactor decide to join them together? We may explain this decision by showing that the pericope may have actually undergone two stages in its history. At first a redactor may have simply juxtaposed the rulings, viewing them as two separate answers to the same question, i.e., whether or not a terrace is considered to be part of the field below it. Eliezer b. Jacob presents one criterion, concerning one's ability to work from the field on the terrace's vines, and Eliezer/Eleazar offers another rule, dealing with the height of the terrace. At some later point a (presumably different) glossator then added >p ("even") to

25 If the spot at which the vines meet the ground is considered the spot at which the vines would be regarded as growing out of the ground (cf. Maim., Comm., Code, Diverse-Kinds 8:8), it follows that the four arnot should be measured from that spot. 26 T. Kil. 3:7-8 maintains that a terrace is considered separate from the field below, but does not discuss whether or not the terrace must be a specific distance above the ground.

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Eliezer/Eleazar's saying in D, making the latter appear to be a restatement of Eliezer b. Jacob's rule of B-C. When read together with 'p, Eliezer/Eleazar's saying may be taken to mean that a terrace ten handbreadths higher than the field is considered to be separate from the latter because one standing in the field cannot reach vines which are planted on a terrace of that height. The two sayings may thus have been viewed differently at separate stages in their history, being regarded first as autonomous opinions and then as statements of the same rule. 6:3-5 A. He who trains [so Danby for hmdlh] a vine over some of the laths [of a latticework] shall not put seed under the remaining [laths]. B. If he did put [seed there], he has not sanctified [the seeds underneath]. C. And if the new growth (hh_df; Danby: tendrils) [of the vine] spread [over the rest of the laths], it is prohibited [i.e., the seeds underneath are sanctified] . D. And so [is the rule for] he who trains [a vine] over part of a barren tree ('yln srq). M. Kil. 6:3 E. He who trains a vine over part of a fruit tree ('yln m'kl)-it is permitted to put seed under the remainder [of the tree]. F. And if the new growth [Danby: tendrils] [of the vine] spread [over the rest of the tree], he shall tum it [i.e., the new growth] back (yfl.zymw).

G. mesh f: R. Joshua went to R. Ishmael at Kefar Aziz, 27 and he showed him a vine which was trained over part of a fig tree. H. He [i.e., R. Joshua] said to him, "May I put seed under the remainder [of the tree]?" I. He [i.e., R. Ishmael] said to him, "It is permitted." ]. And he brought him up from there to Bet Hamaganyah, 28 and he showed him a vine that was trained over part of a branch [so Porton29 for qwrh] and [K (after correction), Mn, Sirillo: 30 in (btwk)] a trunk of a sycamore tree, in which there were many branches. K. He [i.e., R. Ishmael] said to him, "Under this branch it is prohibited [to put seed], and under the rest [of the branches] it is permitted." M. Kil. 6:4

27 Kefar Aziz is located about 12 km. south of Hebron. C£ M. Avi- Yonah, Historical Geography, p. 115, and idem, Carta's Atlas, pp. 87, 116, and 128. 28 For variant readings see Zachs, I, p. 270, on 1. 19. Bet Hameganyah was apparendy a private estate (Sirillo, cited by Lieberman, TK, II, p. 640, on 1. 24). 29 Cf. Parton, Ishmael, I, p. 38. 3°Cited by Zachs, I, p. 271, n. 28.

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L. What is [considered] a barren tree ()ln srq)? M. Every [tree] which does not produce fruit. N. R. Meir says, "Every tree is [considered] a barren tree, except for the olive tree and the fig tree." 0. R. Yose says, "Every [tree] the like of which they do not plant as whole groves, lo, this is [considered] a barren tree." M. Kil. 6:5 (N: Y. Orl. 1:1 (60c))

M. 6:3-5 forms a new subunit dealing with single trained vines. M. opens with three rules, A-c (vine trained on a latticework of laths), D (vine trained on a barren tree), and E-F (vine trained on a fruit tree), all of which begin with the formulary pattern hmdlh. A and E somewhat balance one another ('ppywnvt vs. 'yln m'kl, !' yi!l vs. mwtr lhby'), although C and F do not closely correspond to each other (mwtr vs. yh.zymw, as we shall see below). B's language differs from that of C (qydf vs. 'swr), 31 and B has no corresponding clause in E-F, so that B appears to be secondary to the construction. D (joined to A-C by wkn) and the protasis of E are almost perfectly paired ('yln srq vs. 'yln m'kl). D, however, lacks an apodosis, and states no new rule of its own. It appears, therefore, that D has been added to the pericope in order to present a contrast for E (barren tree vs. fruit tree). D thus serves the redactional function of linking A+C to E+F. G-K then augments E-F with a m'fh. L-0 glosses D, and thus is also secondary to the original construction, which may now be seen to have consisted of A+C+E-F. L-0 was probably placed after G-K and not immediately after D so that it would not interfere with the contrast between D and E. A and E describe cases in which a vine is trained over part of some structure. The question discussed in both instances is whether one may sow another kind under that part of the structure that remains uncovered by the vine. The issue of A and E concerns whether or not the uncovered part of the structure is considered to be "taken over" by the trained vine, so that the vine and the entire structure are deemed to form a single entity (as in the case of the espalier [M. 6:1 ]), under which one may not sow. M. here distinguishes between a latticework of laths (A), which is regarded as an extension of the vine (cf. MR, Albeck), and a fruit tree (E), which is not so considered. The reasoning behind M. appears to be that the laths are inanimate, and therefore lose their aspect to the animate vines, while the animate fruit tree

31

Cf. Porton, Ishmael, I, p. 38.

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retains its own aspect in supporting the vine. The glossator responsible for D, though, apparendy sees the issue differendy, for he compares the barren tree, which is animate, to the latticework of laths, which is not. According to D, therefore, M. distinguishes between the non-fruitbearing structure (latticework of laths, barren tree), which is "taken over" by the fruit-bearing vine, and the fruit tree, which, because it bears fruit itself, keeps its own aspect while supporting the vine. B then weakens the force of A, saying that one who actually does sow under the uncovered part of a latticework of laths does not thereby sanctify the seeds. We may understand the function of B in the pericope only after turning to C. The latter states that if one sows under the remaining part of the structure, and the vine subsequendy spreads out over that part, the seeds are prohibited, or sanctified, for the vine now hangs direcdy over seeds which should not have been sown at that spot in the first place. A has already told us, however, that one may not sow under the remaining part, and it should follow from A that any seeds which are sown there are sanctified. The rule of C thus appears to be unnecessary. C, however, is already part of the original construction, for it balances F (kngdw mwtr vs. kngdw yhzymw). B therefore has apparendy been added to the pericope in order to clarify A+C. B explains that, although A does not allow sowing under the remaining part of the latticework of laths, such an action does not sanctify the seeds, presumably because they do not lie direcdy under the vine. The rule of C then logically follows that of B. Like C, F rules concerning the vine that spreads over seeds previously sown under the uncovered part of the fruit tree. Now we might expect F to read mwtr in order to balance C's 'swr. F, however, reads yhzymw ("he shall turn it back") and so takes an intermediate position, in which the seeds are neither entirely permitted nor prohibited. The seeds are not prohibited, or sanctified, for it was originally permitted to sow them under the fruit tree. At the same time, though, the seeds and the vine may not continue to grow in their respective positions, for they would then produce the appearance of diverse-kinds. The vines must therefore be turned back, so that they do not cover the seeds. G--K presents a m'sh in which Joshua asks Ishmael (or vice versa32 ) concerning two cases of sowing under a tree that supports a vine. In 32 We here follow the commentaries in assigning the questions to Joshua and the replies to Ishmael, although there is no reason why these attributions may not be reversed (following William S. Green, The Traditions qf Joshua b. Hananiah, I, p. 21 ).

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G-I Ishmael permits Joshua to sow under that part of a fig tree that is not covered by the vine. In j-K Ishmael prohibits sowing under a sycamore branch upon which a vine is trained, but he permits sowing under the other branches that grow out of the same trunk. G-I and ]-K thus both illustrate E, for in both instances Ishmael permits one to sow under the uncovered part of the fruit tree (for the sycamore bears a fig-like fruit 33). 34 Alternatively, Maimonides (Comm.) 35 notes that, although J states that the vine is trained over only part of the sycamore branch, Ishmael in K prohibits sowing under the entire branch. Maimonides therefore reasons that the sycamore, which yields fruit but is grown primarily for its lumber, 36 is considered partly like a barren tree, so that one may not sow under any part of the branch supporting the vine (a rule analogous to that of A), and partly like a fruit tree, so that one may sow under the uncovered part of the tree (as in E). According to this interpretation the point of G-K may be to contrast the status of the fig tree with that of the sycamore, for both trees are members of the same botanical genus (Ficus, of the nettle family [Urticaceaer) and both yield similar fruits. It is not clear, however, that one may read j-K to imply that a sycamore is considered a barren tree. j-K may not intend to place any emphasis at all on the fact that, although the vine is trained on only part of the branch, Ishmael prohibits sowing under the whole branch. We therefore prefer the first interpretation given above.

33 Cf. Theophrastus, Enquiry into Plants, 4.2.1 (trans. Arthur Hort, Loeb ed., v. I, p. 293; cited by Feliks, Plant World qf the Bible, p. 55), who compares the fruit of the sycamore to the fig as follows: ... in size it [i.e., the fruit of the sycamore] is as large as a fig, which it resembles also in appearance, but in flavour and sweetness it is like the 'immature figs,' except that it is much sweeter and contains absolutely no seeds, and it is produced in large numbers. Cf. also Pliny, Historia Natura/is, 14.56-57 (cited by Hort, p. 291, n. 6). 34 Porton (p. 38) notes, however, that E and J-K were formulated separately, for the language of K, f'r ("the rest [of the branches]"), differs from that of E, mwtr ("the remainder [of the tree]"). 35 Cited by Lieberman, TK, II, pp. 640f., on II. 26-27, who discusses Maimonides' interpretation in the light of T. 4:7b. C£ our discussion of T. below. 36 Cf. Feliks, Plant World qf the Bible, p. 54, and Mixed Sowing, pp. 153-154, and Feldman, S.im!J.e HaMishnah, pp. 135-138. 37 The sycamore's botanical name is Ficus sycamorus, while that of the fig tree is Ficus caricus (Feliks, Mixed Sowing, pp. 153, 160, and Mar'ot HaMishnah, pp. 152-153). For both trees as members of the nettle family, c£ Post, Flora qf ~ria, Palestine, and Sinai, s.v. Ficus. Feliks, however, places both trees in Moraceae (mulberry family) (Mar'ot HaMishnah, pp. 152-153).

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L-0 glosses D with a dispute concerning the definition of a barren tree. The dispute consists of three opinions, the anonymous saying at M, and the views of Meir and Yose at N-0. All of these statements respond to the question at L. M and N-0, however, deal with entirely separate issues. While M presents the obvious 38 definition of an yln srq as a tree which does not produce fruit, Meir and Y ose define the yln srq not in terms of a tree's ability to bear fruit but in terms of the economic importance of its fruit. Meir maintains that all but fig and olive trees are considered "barren," or economically insignificant, for these two trees, together with the vine, alone produce the most important fruits of the Mediterranean area. 39 Y ose, on the other hand, states that any tree with which one would not plant an entire grove is considered a "barren" tree, for only those trees for which one would invest a whole grove are regarded as important. Y ose thus encompasses and relativizes Meir's definition of a "barren" tree, making it dependent on the value of the tree's fruit. In defining a "barren" tree in terms of a tree's economic importance, Meir and Yose effectively revise the criterion for determining whether a tree supporting a vine is "taken over" by the vine or whether it retains its own aspect. The barren tree of D, which is considered an extension of the vine trained upon it, now refers to all economically unimportant trees, and the fruit tree of E, which keeps its own aspect, now describes either the fig or olive tree (Meir), or any fruit-bearing tree of significance (Yose). We note that it is possible that L-M, which merely states the obvious and is not interested in the concerns of N-0, serves only to introduce N-0 and to underline the latter's divergence from the standard definition of an yln srq. A. m'sh s: R. Joshua went to R. Ishmael at Kifar Azin [Erfort: Aziz], and he showed him a vine which was trained on part if a jig tree. B. He [i.e., R. Joshua] said to him, ''May I put seed under the remainder [if the tree]?" C. He [i.e., R. Ishmae~ said to him, "It is permitted [= M. 6:4G-I], D. "for a man does not set his fig tree at nought (mbtl) before his vine."

Cf., M. Oh. 18:3. K. D. White, Roman Farming, p. 224. Olives or olive oil were used as food, as a source of illumination, and for anointing. Figs were used mainly as food (e.g., dried figs, bread). 38 39

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E. He brought him up from there to Bet Hameganin/ 0 and he showed him there a vine which was trained on part if a branch, and with it was a trunk if a sycamore tree, and in it [i.e., the trunk] were marry branches. F. He [i.e., R. Ishmaeq said to him, "Under this branch it is prohibited to [to put seed], and [under] the rest [if the branches] it is permitted[= M. 6:4]-K], G. "for I regard each and every branch [Erfurt omits: "in the tree"] in the tree as a tree unto itself" H. R. Simeon b. Leazar [first printed ed.: Ishmael] says, "If [the vine] was climbing (mpv'; Erfurt: mpsy') from one branch to another, [the branches are all considered] as [belonging to] a single tree." T. Kil. 4:7b (p. 219, II. 21-25) (H: Y. Kil. 4:3 (30c) 41 )

T. cites and glosses M. 6:4G-K, presenting reasons at D and G for the two rulings of the m'sh (A-C, F-H). D has Ishmael explain that one may sow under the uncovered part of a fig tree which supports a vine because he is not assumed to set his fig tree at nought for the vine, i.e., to regard the fig tree as losing its own aspect and taking on that of the vine (= M. 6:4E). G has Ishmael state that one may sow under the uncovered branches of a sycamore tree if a vine is trained on one branch, because each branch is considered a tree unto itself. In making the point that each branch is considered a separate tree, T. apparently presupposes that the sycamore is considered as a barren tree. T. thus explains that one may not sow under the entire tree upon which the vine is trained, but that the tree in question refers only to the supporting branch and not to the whole sycamore. At H Simeon b. Eleazar glosses E-G, saying that if the vine begins to climb from one branch to another, all of the branches are considered part of one tree, for now the branches are all regarded as serving the vine and thus are no longer considered as separate trees. In this instance, therefore, one may not sow under any part of the sycamore. 42

40 For variant readings cf. Lieberman, TZ, p. 219, critical apparatus on 1. 24, and TK, II, p. 640, on I. 24. 41 In Y. Kil. 4:3 (30c) the saying of Simeon b. Eleazar appears in the context of a

discussion of a vine trained over laths, and the saying there reads as follows: R. Simeon b. Leazar says, "If it was its [i.e., the vine's] manner to climb from lath to lath, [all of the laths together are considered] as [belonging to] a single lath." 42 Alternatively, Lieberman (TZ, p. 219, on I. 27, and TK, II, pp. 640-641, on 11. 26-27, 27) explains that in G each branch is considered as separate from the others because the sycamore tree is considered partly as a fruit tree, so that one may sow under the branches that do not support the vine. At H Simeon b. Eleazar then states

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6:6 A. Gaps [so Danby for psqy] of an espalier [must measure] eight amot and a little more [so Danby for w'wd] [in order to be sown with another kind]. B. And all of the dimensions of which sages spoke in [reference to] the vineyard-there is no [mention of] "and a little more" in them, except for [the dimensions of] the gaps of an espalier. C. What are [considered] the gaps of an espalier? D. An espalier which lies waste at its center [following Danby for flrb m'mlw], and there remained in it five vines on one side [of the center] and five vines on the otherE. if there are there [i.e., between the two groups of vines] eight amot, he shall not put seed there. F. [If there are there (i.e., between the two groups of vines)] eight amot and a little more, they allow it [i.e., each group of vines] enough [space] for its area of tillage, and he sows the rest. M. Kil. 6:6

Returning to the subject of the espalier, M. consists of a statement at A, which is then glossed separately by B and C~F. Apparently referring to the issue of sowing, A states that the gaps of an espalier must measure "eight arnot and a little more." B points out that similar rules concerning the minimum area that may be sown among vines (e.g., M. 4:1~2, 8~9 [Albeck], M. 5:4) do not include the phrase "and a little more," giving instead an exact measurement of the area. C~F explains that A concerns an espalier which contains more than ten vines. The middle of the espalier is destroyed, and two groups of five vines each, or two espaliers (c£ M. 6:1B), remain on either side of the gap. E~F (following the formulary pattern of M. 4: II~J, 4:2M~N) then spells out the rule of A. One may not sow in the gap if it measures only eight arnot (E), for then there would be enough space only for the areas of tillage of the two espaliers (four arnot each [M. 6: lA~CJ), but not for the other kind. If, on the other hand, there is more than eight arnot of space in the gap, one allows each espalier its area of tillage and sows the rest (F), for then there is enough space for both the areas of tillage

that if the vine climbs from one branch to the next, all of the branches are considered to belong to a single tree, for now the entire tree is regarded as serving the vine, and is now treated as a barren tree. This interpretation is difficult, however, for it does not account for T.'s specific language at G ("a tree unto itself"), nor does it explain why the status of the sycamore should change so that it should be considered a fruit tree at G but a barren tree at H. We therefore prefer the first explanation offered above.

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and the other kind (the latter being sown in the space referred to by the phrase "and a little more" in A). By interpreting A to refer to two espaliers which are separated by a gap, C-F thus explains why the gap must contain "eight arnot and little more" in order to be sown. 43 A. What are [considered] the gaps qf an espalier (h_rys.)? 44 B. An espalier which lies waste at its center and there remained in it five vines on one side [qf the center] and five vines on the otherC. if there are not there [i.e., between the two groups qf vines] [Liebennan: 45 if there are there onfy] eight arnot, he shall not put seed there. D. [.lf there are there (i.e., between the two groups qf vines)] eight arnot and a little more, thf[Y allow it its area qf tillage and he sows the rest [= M. 6:6C-F]. T. Kil. 4:8 (p. 219, 11. 28-30) E. How much is "and a little more?" F. One of six handbreadths of an amah [Sens, Ribma§: one-sixth of an amah; Maim., Comm., Code, Diverse-Kinds 5:5, others: 46 one-sixtieth of an amah]. T. Kil. 4:9a (p. 219, 11. 30-31)

T. cites and glosses M. 6:6C-F, specifying at E-F the measure meant by the phrase "and a little more (D)." T. states that this phrase refers to one of the six handbreadths of an amah, or simply one handbreadth. In phrasing its answer in this manner, T. disagrees with Meir's view that the amah mentioned in reference to the gaps of an espalier measures five handbreadths (T. Kel. B.M. 6:13). We note that the reading of Sens and Ribma§ avoids the question of the number of handbreadths in an amah by stating simply "one-sixth of an amah." 47

43 Alternatively, one may adopt Yohanan b. Nuri's view (M. 6:1F-G) that the area of tillage of an espalier is six handbreadths, or that of a single vine. The area which is to be sown then measures at least six arnot (cf. Maim., Comm.). (Cf. also GRA, who maintains that an espalier is allowed four arnot as its area of tillage, but only in respect to the area facing it. At the sides of the espalier, on the other hand, it is allowed only six handbreadths.) Although there is no reason to rule out such an interpretation, we prefer the one given above, for it explains the significance of the phrase "eight arnot and a little more." According to the view that maintains that an espalier is allowed six handbreadths as its area of tillage, the measure of "eight arnot and a little more" appears to have no particular significance at all. 44 Cf. our translation of T. 4:4-5, above. 45 T(, p. 219, on 1. 29, and TK, II, p. 641, on 1. 29. 4 for 't) [other produce of] its same species. H. And they may only judge species [of produce] to be permissible on the authority of a sage. I. And all [produced harvested] in the year following the Sabbatical is liable to tithes. T. 4:14 The ruling of M. 6:4C applies to like produce from different geographical regions (A-C). D-F apply the principle of M. 6:4B to produce at successive stages of processing, rather than at successive stages of ripening. Once the produce which has already had time to dry is permitted (according to the criterion of M. 6:4B), the fresh produce is likewise permitted (E). One must wait to purchase the dried produce, however, until the new, fresh produce has been harvested and had time to dry (F). This is because, in the case of garlic, arum and onions, even after the new, fresh produce may be bought, the dried produce might be from the Sabbatical year. G restricts the ruling of A-C to produce of a single species. Since different species of produce become ripe at different times, even after the new crop of one species is permitted, produce of another species may yet be from the Sabbatical year. H glosses this ruling. I is separate and has been included here because it relates to produce harvested in the year following the Sabbatical. Although such produce has an ambiguous status with respect to the restrictions of the Sabbatical year, it is subject to the separation of tithes. This is because produce becomes liable to tithes when it is harvested. 61 A. A vegetable planted on the eve yearB. lo, one may not gather it (so E; wait to pick it] until the new crop is permitted (so E, which reads: hh.df).

61

of the New Year of the Sabbatical V, ed. princ., add: bsofyt) [but must [of the year following the Sabbatical] .[yryr hh.df, V, ed. princ. read: .[ytry t'

See Jaffee, Tithing, p. l.

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C. R. Simeon b. Eleazer says, "At the beginning of the eighth year he may, however, gather its leaves (read with Lieberman, T,Z, p. 185: ) [i.e., of the calendar year which has not yet ended]. C. R. Nehemiah says, "To what [sort of tree] does this ruling apply? D. "To a tree which bears new fruit twice a year (f'wsh sty brykwt bfnh). E. "But [as regards] a tree which bears new fruit only once a yearF. "for example, olives, dates, and carobsG. "even if [the tree's] fruit begins to form prior to the fifteenth of Shebat, [i.e., between the first of Tishre and the fifteenth of Shebat], it is as if such fruit began to form after the fifteenth of Shebat." So Jastrow, p. 266. See M. R.H. I: 1. For Scripture, the beginning of the new calendar year is in Tishre. See Lev. 25:9. 65

66

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H. R. Simeon b. Gamaliel says, "[The period] from the appearance of the leaves [of the fig tree] until [the appearance of] the underdeveloped figs (hpgyn) is fifty days. I. "[The period] from [the appearance of] the underdeveloped figs until [the ripening of] inferior figs [which grow from buds of the preceding year and generally drop off the tree] (following Lieberman, TZ, p. 184, who reads: .[ytyn hnwblwt; V reads: .[ytyn wnwblwt, E, ed. princ. read: .[ylryw nwblwt) is fifty days. J. "And from [the ripening of] inferior figs until [the ripening of welldeveloped] figs (t'nym) is fifty days." K. Rabbi says, "Each [of these intervals] is forty days (reading with E: 'rb'ym; V, ed. princ. read: 'rb'ym 'rb'ym)." L. And all [figs which become ripe] prior to this time [i.e., the fifteenth of Shebat]-lo, they are [deemed to be produce] of the preceding year [= A], M. [and all figs which become ripe] after this time-----lo, they are [deemed to be produce] of the current year [= B]. T. 4:20 (b. R.H. l5b; b. Bek. 8a)

Produce of fruit-bearing trees is regulated by two distinct yearly cycles which do not coincide. The calendar year, which begins on the first of Tishre, determines which agricultural offerings are to be given from produce grown in that year. In the first, second, fourth, and fifth years of the Sabbatical cycle, the farmer dedicates second tithe, while in the third and sixth years, he dedicates poorman's tithe. The new growing season for fruit trees, on the other hand, begins on the fifteenth of Shebat, three and a half months after the start of the new calendar year. Fruit which appears after the fifteenth of Shebat poses no problem for the system of agricultural offerings. Such fruit is subject to the agricultural restrictions of the calendar year in which it appears. The problem is how to determine which agricultural restrictions apply to fruit which appears after the beginning of the new calendar year (i.e., the fifteenth of Shebat). Such fruit could be subject to the restrictions of the preceding calendar year, since it appears before the fifteenth of Shebat, while the old crop of fruit is still on the branch. Alternatively, such fruit may be subject to the restrictions of the new calendar year, since this is the year in which it appears. A-B's point is that the fifteenth of Shebat, rather than the first of Tishre, determines the status of this fruit. Fruit which appears before the fifteenth of Shebat is deemed part of the old crop and is subject to the restrictions of the preceding calendar year. According to Nehemiah (C-G), the ruling of A-B applies only to trees which bear two crops of fruit within the same calendar year. The

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first crop of fruit, which appears before the fifteenth of Shebat, grows from buds which appeared on the branch during the preceding calendar year. Such fruit, accordingly, is subject to the agricultural restrictions of the preceding calendar year. The crop of fruit which appears after the fifteenth of Shebat, on the other hand, grows from buds which appeared after the beginning of the new calendar year. This crop is subject to the restrictions of that year. Nehemiah claims that trees which bear fruit only once a year are subject to a different rule. These trees both produce buds and yield fruit within the same calendar year. Such fruit clearly belongs to the calendar year during which the entire growth process occurs (G). Simeon and Rabbi apply Nehemiah's ruling to the case of fig trees, which bear two crops of fruit within a single calendar yearY The first crop of figs appears prior to the fifteenth of Shebat, and so, belongs to the preceding calendar year. The crop of figs which appears after the fifteenth of Shebat, however, belongs to the current calendar year. This is the point made at L-M, which repeat A-B. The issue of the time interval separating the two crops of figs, disputed by Simeon and Rabbi at H-J vs. K, is a moot point. Both parties agree that fig trees bear two crops within a single calendar year and, therefore, are subject to the ruling as stated. A. An incident: R. Aqiba picked a citron on the first of Shebat and dealt with it in accordance with the words of the House of Hillel [who hold that the new year for fruit-bearing trees begins on the fifteenth of Shebat] and in accordance with the words of the House of Shammai [who hold that the new year begins of the first of Shebat; see M. R.H. l: l.]" [Aqiba separated both second tithe, as if the citron were fruit of the second (or fifth) year, and poorman's tithe, as if it were fruit of the third (or sixth) year.] 68 B. R. Yose in the name of R. Judah [said, "R. Aqiba dealt with the citron] in accordance with the words of R. Gamaliel [who holds that citrons, like other fruit trees, are subject to the separation of the tithes required in the year in which they become ripe; see M. Bik. 2:6.]" [Aqiba separated second tithe, required in the year in which the

67 See Encyclopedia Britannica, Eleventh Edition, val. 10, pp. 332-3: "Fig trees usually bear two crops-one in the early summer from buds of the last year, the other in autumn from those on the spring growth; the latter forms the chief harvest. Many of the immature receptacles drop off from imperfect fertilization ... " 68 This assumes that Aqiba accepted Gamaliel's view (see M. Bik. 2:6 and T. Sheb.4:21B) that citrons are liable to the tithes of the year in which they are picked.

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E.

F. G.

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citron grew and poorman's tithe, required in the year in which it was picked]. 69 Said R. Yose, "R. Abtolemos affirmed in the name of five elders that a citron is subject to [the separation of] tithes [required] in the year in which it is picked. And in Usha our rabbis voted concerning [this matter] and ruled that a citron is subject to [the separation of] tithes and to [the law of] removal in the year in which it is picked." [This is explained below at F-G.] R. Simeon said, "A citron which remained [on the tree] (fnkns) from the sixth year into the Sabbatical, or which remained [on the tree] (.[y,r') from the Sabbatical into the year following, is exempt from [the separation of] tithes and exempt from [the law of] removal. "The only [fruit] which is subject to [the separation of] tithes is that which grew under conditions of liability and was picked under conditions of liability. "The only [fruit] which is liable to [the law of] removal is that which grew during the Sabbatical year and was picked during the Sabbatical year."7o T. 4:21 (y. Bik. 2:5 [65b]; y. R.H. 1:2 [57a]; b. Erub. 7a; b. R.H. 14a; b. Yeb. 15a; C: b. Suk. 40a

The pericope is related tangentially to M. 6:4A-B in that it concerns that status of produce which grows in one year but is harvested in the following year. The issue is whether a citron is subject to the tithes required in the year in which it becomes ripe, as are fruit trees, or to the tithes required in the year in which it is harvested, as are vegetables. According to the two versions of the incident at A-B, Aqiba took both positions into account. Yose (C-D) cites precedents for the ruling that a citron is subject to the tithes of the year in which it is picked. Simeon (E-G) rejects the whole issue as phrased at A-B and C-D. He holds that the citron, like all produce, is subject to the restrictions of a given year only if it both becomes ripe and is harvested in that year. 6:5-6

A. They may not export oil [in the status of heave-offering which has become unclean and is fit only for] burning or produce of the Sabbatical year from the Land of Israel to [countries] outside the Land.

69 This assumes that Aqiba accepted the Shammaite view (see M. R.H. 1:1 and T. Sheb. 4:21) that the first of Shebat begins the new year for fruit-bearing trees. 70 See Neusner, Pharisees, II, pp. 80-81. See also Lieberman, TK, pp. 545-6 for a discussion of the many sources relevant to this pericope.

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B. Said R. Simeon, (L omits: Simeon) "I have heard [it stated] explicitly that they may export [these things] to Syria, but they may not export [them] to [countries] outside the Land. M. 6:5 (Sifra Behar l :9) C. They may not import produce designated as heave-offering from another country to the Land of Israel. D. Said R. Simeon, (L omits: Simeon) "I have heard [it stated] explicitly that they may import [such produce] from Syria, but they may not import [it] from [countries] outside the Land. M. 6:6 (y. Hal. 4:5 [60b])

Two parallel disputes address the issue of Syria's ambiguous status, the topic of M. 6:2. Simeon (B, D), in line with the position attributed to Aqiba (M. 6:2C-E), holds that the same agricultural restrictions apply both to produce grown in Syria and to that which comes from the Land of Israel. Since a large number of Israelites live in Syria, it is regarded in every way as part of the Land. The rules at A and C claim that all regions outside the original borders of the Land (cf. M. 6: 1), including Syria, are exempt from the restrictions that apply within the Land. With the central point of the disputes in hand, let us now turn to the details of the rule and A and C. The principle underlying the rule at A is clear. Sanctified food must be used by Israelites living in the Land. People may not treat these edibles like ordinary produce, by exporting them to other countries where they will be used as common food. Mishnah's authorities characteristically express this point by focusing upon the liminal case, produce that is sanctified, yet is not subject to all of the restrictions that generally apply to other sanctified agricultural offerings. We deal in the first instance with oil in the status of heave-offering that has become unclean. This oil no longer can be eaten by priests and so is not subject to the restrictions governing the use of clean heave-offering. In particular, this oil may be burned in a lamp to provide light for ordinary Israelites as well as for priests (see M. Ter. 11: 10). Produce of the Sabbatical year likewise is sanctified. God has designated the yield of the Land during the seventh year as food, which must be shared equally by all Israelites. Nonetheless, this produce is exempt from many of the restrictions that apply to other agricultural offerings, for it is not eaten in a state of cleanness (like heave-offering), nor brought to Jerusalem (like second tithe), nor presented at the altar of the Temple (like firstfruits). Even though these types of produce, unclean heave-offering and produce of the Sabbatical year, do not possess the full sanctity of food given to the priests, they remain sanctified produce of the Land. People may not export this food, as if it were a common commodity. Jacob Neusner - 978-90-47-41637-1 Downloaded from Brill.com02/08/2023 11:54:33AM via Universite degli Studi di Milano

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The contrasting rule at C makes a complementary point. One may not import produce from other countries and treat it as though it enjoyed the status of sanctified food from the Land of Israel. A householder living outside the Land has designated some of his produce as heave-offering. The farmer's act of designation alone, however, cannot make this produce sanctified, for only that which grows in the Land of Israel is invested with this special status. A. "Produce of the Sabbatical year which was exported to another coun-

try-[the owners of the produce] remove it in the place [to which it has been exported]," the words of Rabbi. B. R. Simeon b. Eleazar says, "[The owners of the produce] bring it to the Land [of Israel] and remove it in the Land [of Israel]. C. "As it is written [in Scripture], 'In your land [i.e., the Land of Israel] all its yield shall be for food (Lev. 25:7)."' T. 5:1 (b. Pes. 52b) At issue is how one continues to observe the law if, contrary to the ruling of M. 6:5A, he takes produce of the seventh year out of the Land of Israel. Rabbi (A) holds that the law of removal is observed in the place to which the produce has been exported. In other words, the law of removal applies to this produce even outside of the Land of Israel. Just as if it had never been exported, the produce is removed from the possession of its owner when similar produce is no longer available in the fields of the Land of Israel. Simeon (B) maintains that the law of removal does not apply outside the Land of Israel. The previous violation must be rectified before further restrictions of the Sabbatical year may be observed. The owner must first return the produce to its proper place, in the Land of Israel, and then observe the law of removal there. At C, Simeon offers a prooftext for his opinion. A. Produce designated as heave-qffering mqy not be imported .from another country into the Land if Israel [= M. 6:5C].

B. Said Rabban Simeon b. Gamaliel, "In Acre, I once saw Simeon b. Kahana drinking wine in the status of heave-offering. C. "When he said, 'This [wine] comes from (lryqy m-) Cilicia,' 71 they required him to drink [the wine] in a boat [i.e., he was not permitted to bring the produce into the Land of Israel]." T. 5:2 (y. Hal. 4:12 [72d])

Simeon b. Gamaliel describes an occasion on which the ruling of 6:5C was applied.

71

A district in S.E. Asia Minor; so Jastrow, p. 1361.

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This tractate begins a protracted essay, encompassing Chapters Seven through Nine, on a new topic: the restrictions that apply to produce which grows during the Sabbatical year. Mishnah's framers proceed logically, first delineating the types of produce subject to the restrictions of the law, then, in subsequent chapters, presenting these restrictions in detail. In order to understand the point of the criteria presented in the chapter before us, however, we must begin with an overview of the restrictions themselves. These are of two types, (1) restrictions governing the use and transfer of produce of the Sabbatical year, and (2) the law of removal. The restrictions of the Sabbatical year provide that edible produce which grows during that year belongs equally to all Israelites. For this reason, individuals may neither use this food for their own financial gain nor sell it in the usual manner, as they would produce which they owned. This sanctified produce has been designated by God as food for Israelites and may not be used for any other purpose. The law of removal prevents people from stockpiling produce meant to be shared by all. Once all edibles of a certain species have disappeared from the fields, people must remove food of that type which they have stored in their homes. By making this food accessible again for people to collect, the householder assures that all Israelites equally share in the food which grows during the Sabbatical year. With this summary of the law in hand, let us tum to the substance of our chapter, which specifies the criteria that determine the liability of produce to these two sets of restrictions. The restrictions of the Sabbatical year apply only to produce used for human consumption, animal consumption, or as dyeing matter (M. 7: l-2). These types of produce are singled out because in other years of the Sabbatical cycle such produce generally is bought and sold in the market. During the Sabbatical year, however, the yield of the Land is treated as ownerless and so may not be used for the financial gain of individuals. Accordingly, those particular types of produce which Israelites ordinarily use for commercial purposes may not be used in this way during the Sabbatical year. The law of removal applies only to annuals, not perennials. This is because, as I explained above, the law requires people to remove pro-

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duce from their homes when similar produce disappears from the field. Accordingly, only those types of produce which die at the conclusion of each growing season and disappear from the field can be subject to this law. Perennials, by contrast, grow continuously for more than one season. Since they do not disappear from the field, there is no point at which they could be subject to the law. On the basis of these criteria, the chapter defines two mutually exclusive categories of produce: (1) produce subject to the restrictions of the Sabbatical year, but not to the law of removal, and (2) produce subject both to the restrictions of the Sabbatical year and to the law of removal. These two categories of produce are defined in the two formally balanced general rules atM. 7:1B-D and M. 7:2R-T. The bulk of the chapter presents lists of produce which fall into one or the other of these categories (M. 7:1G-L, M. 7:2W-Z, M. 7:3D-7:4 and M. 7:5-6). Only two of the chapter's units break with its central theme. M. 7:3D-7:4 consists of a series of rulings that address the issue of conducting business with sanctified and prohibited foods. It appears here because M. 7:3D-E, the first in this series of rulings, is related topically to the list of produce which precedes it. At M. 7:7, we consider whether produce of the Sabbatical year which has become mixed with produce of other years renders the common produce subject to the restrictions of the law. It is included here because the rose, which serves to exemplifY the rule governing mixtures, appears in the list of produce at M. 7:6. 7:1-2 A. They stated an important general rule concerning [the laws of] the Sabbatical year: B. All [produce] which is: 1) fit for human consumption, animal consumption, or IS a species [of plant used for] dyeing, 2) and which does not continue to grow in the ground [for longer than one season, i.e., plants which are not perennials]' C. is subject to [the restrictions of] the Sabbatical year, D. and the money [received when the produce is sold] is subject to [the restrictions of] the Sabbatical year. E. [This produce also] is subject to removal [i.e., the produce must be removed from one's possession when similar produce disappears from the fields,] 1 This is the only occurrence of this verb used in the present sense in MishnahTosefta. See Jastrow, p. 1331, s.v., qwn.

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F. and the money [received when the produce is sold] IS subject to removal. G. Now what is [considered fit for human consumption]? H. The leaf of wild arum, 2 the leaf of miltwaste, 3 chicory, 4 leeks, 5 purslane, 6 and omithogalum. 7 I. And [what is considered] fit for animal consumption? J. Thoms8 and thistles. 9 K. And [what is considered] a species [of plant used for] dyeing? L. Mtergrowths of woad 10 and seed of safflower. 11 M. They are subject to [the restrictions of] the Sabbatical year, N. and the money [received when the produce is sold] is subject to [the restrictions of] the Sabbatical year. 0. They are subject to removal, P. and the money [received when the produce is sold] is subject to removal. M. 7:1 (A-B: b. Shah. 68a; y. Shah. 7:1[8d]; F: b. Nid. 5lb; K-P: b. B.Q lOlb) Q And they stated yet another general rule [concerning the laws of the Sabbatical year]: R. All [produce] which is (so K and nine other MSS; Albeck and others add: not) 12 1) fit for human consumption, animal consumption, or is a species [of plant used for] dyeing, 2) but which [unlike the produce referred to at M. 7: 1] continues to grow in the ground [from one season to the next, i.e., plants which are perennials] S. is subject to [the restrictions of] the Sabbatical year,

Jastrow, p. 700, s.v., lwp. So Danby. Jastrow, p. 315, s.v., dndn', translates "mint," following Maim. (Comm.) 4 So Danby. Jastrow, p. 1052, s.v., 'wlfyn, translates "endives." 5 Jastrow, p. 667, s.v., kryw'. 6 Jastrow, p. 1448, s.v., rgylh. 7 Jastrow, p. 464, s.v., h_lb translates "ornithogalum, Star of Bethlehem, a bulbous plant." Danby translates "asphodel." 8 Jastrow, pp. 430-1, s.v., hwh'. 9 Jastrow, p. 321, s.v., drdr. 10 Jastrow, p. 55, s.v., )srys. The plant itself is a perennial (see New Columbia Encyclopedia, p. 2997). The aftergrowths referred to here, however, are not perennial and so, meet the criteria of M. 7: 1B2. 11 So Danby. Likewise, Correns (Sabbatical, p. 115, note 16) who cites Loew (Flora, I, 394ff.) and Dalman (Arbeit, II, p. 300) in support of this translation. Jastrow, p. 1340, s.v., qwJh, translates ."madder, a plant used in dyeing red." 12 The reading followed here creates the proper contrast with M. 7: 1. It is the change in the defining characteristics listed at B2 which accounts for the change in the ruling regarding removal (E-F). Also, reading the rule as I have accords with the lists of produce at G-J. 2

3

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T. and the money [received when the produce is sold] IS subject to [the restrictions of] the Sabbatical year. U. [But such produce] is exempt from removal, V. and the money [received from the sale of the produce] is exempt from removal. W. What are [plants which are perennials]? X. The root of wild arum, the root of miltwaste, hart's-tongue, 13 bulb of ornithogalum, 14 and hazelwort. 15 Y. And among dyeing matter [these are perennials]: Z. Rubia tinctorum 16 and round-leaved cyclamenY AA. They are subject to [the restrictions of] the Sabbatical year, BB. and the money [received from the sale of this produce] is subject to [the restrictions of] the Sabbatical year. CC. [But] they are exempt from removal, DD. and the money [received from the sale of the produce] IS exempt from removal. EE. R. Meir says, "The money [resulting from the sale of produce listed at X and Z] must be removed before the New Year [of the eighth year]." FF. They said to him, "[The plants themselves] are not subject to removal. [Thus] by an argument a minori ad majus [it is clear that] the money [received from the sale of the produce likewise is not subject to removal]." M. 7:2

Two general rules define the types of produce subject to two distinct sets of restrictions: rules governing the proper use of produce of the Sabbatical year and the law of removal. In order to understand the criteria for liability to these rules, however, we must first briefly review their content, presented fully in Chapters Eight and Nine. Produce of the Sabbatical year enjoys a special status. Unlike crops of other years, which the householder cultivates and gathers for his own use, the yield of the Land during this year has the status of ownerless property. Since this food belongs equally to all Israelites, it may not be treated as a common commodity, like produce that grows in other years. In

13 So Danby, Jastrow, p. 1123, s.v., 'rqblyn, translates "Palm-ivy." See Loew, Flora, IV, p. 72. 14 See Jastrow, p. 464, s.v., h.lbfYn, Danby translates "Bethlehem-star." 15 Jastrow, p. 145, s.v., bwkry', translates "an aromatic plant supposed to be hazelwort or spike-nard," See also Correns, Sabbatical, p. 116, note 21. 16 Jastrow, p. 1138, s.v., pw'h, translates "puah, Rubia Tinctorum, dyer's madder." 17 So Danby. Jastrow, p. 1480, s.v., rkp', translates "a tuberous-rooted plant used for dyeing (cyclaminus)."

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particular, individuals may not use it for their own financial gain, for example, as currency for the repayment of debts or for the purchase of other goods (cf. M. 8:4~5). People also must sell it or process it in an unusual manner, to indicate that the produce is not their own private property (c£ M. 8:3, 6). A separate injunction, the law of removal, prevents Israelites from hoarding produce of the Sabbatical year. It prescribes that once all vegetables of a certain species either have been gathered from the field or have died, food of the same type that individuals have stored in their homes must be removed. At the appropriate time, the householder places the produce outside his house, making it accessible to all. This procedure assures that crops of the Sabbatical year remain available for everyone to collect and eat at all times. With this review of the law in hand, we turn now to the point of the rules before us. At B and R, we learn the criteria for liability to the restrictions of the Sabbatical year and to the law of removal. Only types of produce crucial to the Israelite economy are governed by the restrictions of the Sabbatical year. Food, animal fodder, and dyeing matter are the agricultural products generally bought and sold in the market during the years of the Sabbatical cycle. During the seventh year, therefore, these types of produce alone are subject to the restrictions of the law (B 1, Rl ). A separate criterion determines the liability of produce to the law of removal. Only annuals are subject to this law; perennials are exempt. This is because, as I have explained, the law of removal takes effect only when all produce of a given species disappears from the field. Perennials, which continue to grow from one season to the next, always are available for people to gather and eat. Since, in fact, they never disappear from the field, the householder need not remove them from his home (R2). Only annuals, which grow and die within a single season, are subject to this law (B2). In addition to specifying the kinds of produce subject to these restrictions, Mishnah's framers also address a secondary issue, the status of money received when a householder sells such produce. This transaction is governed by rules similar to those that apply to the sale of produce in the status of second tithe (cf. M. M.S. 2: 1~4: 12). That is to say, money received in exchange for sanctified produce becomes subject to the restrictions governing the food itself. These funds, like the produce for which they were traded, cannot be used for the financial gain of individuals (cf. M. 8:8). Rather, the householder may use this

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money only to purchase other produce which, in turn, becomes subject to the restrictions of the law. 18 Similarly, Mishnah's authorities claim that money received from the sale of annuals is governed by the law of removal. I cannot explain the procedure for removing such money, however, for in Chapter Nine, where we find the rules for the removal of produce, there is no discussion of the money received from the sale of this produce. The rules that I have just explained are present in two parallel, tightly structured units of law. We deal first with types of produce governed by both sets of restrictions (M. 7: 1), then with produce subject to the restrictions of the Sabbatical year, but not to the law of removal (M. 7:2). In each case, Mishnah first presents a general rule, which states the restrictions that apply to this type of produce and to the money received from its sale (A-F, Q-V). Then, the redactor of our pericope has provided us with examples of produce that meet these criteria (G-L, W-Z). Finally, the apodosis of the general rule is repeated (N-P, AA-DD), thus creating a carefully balanced composition. A dispute, at EE vs. FF, upsets the formal balance of these rules. Meir and sages disagree about whether money received from the sale of perennials is subject to removal. Sages (FF), in line with DD, claim that money received from the sale of this produce is governed by the same rule as the produce itself. Since perennials are exempt from removal, so too is the money received from their sale. Meir (EE), however, recognizes that money received from the sale of perennials, which are exempt from the law, cannot be distinguished from money received in exchange for annuals, which are governed by this law. All money, in his view, must be subject to a single rule. This position generates a secondary problem. When do these coins become subject to the law? Ordinarily, money received from the sale of produce should be subject to removal when that type of produce itself becomes subject to the law. Since this rule cannot apply in the case of perennials, which are exempt from the law altogether, Meir stipulates that the householder must remove this money by the end of the Sabbatical year.

18 Mishnah does not say explicidy that this money may be used only for the purchase of other produce. This conclusion follows logically from the ruling of M. 8:7D-E and appears in Maimonides' codification of these laws; see Sabbatical, 7: I.

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A. 1) Pepperwort, 19 2) endive, 20 3) rose petals, 21 and 4) oak-tree leaves, 22 B. are subject to [the restrictions qfJ the Sabbatical year, C. and the monry [received when the produce is sold] is subject to [the restrictions qfJ the Sabbatical year. D. And thry are suldect to removal, E. and the monry [received when the produce is sold] is subject to removal. F. 1) Lesbian-fig root, 23 2) rose root and 3) oak-tree root, G. are exempt from [the restrictions of] the Sabbatical year, H. and the money [received when the produce is sold] is exempt from [the restrictions of] the Sabbatical year. I. And they are exempt from removal, ]. and the money [received when the produce is sold] 1s exempt from removal. T. 5:3

T. provides examples of produce which meet the criteria specified at M. 7: lB. Pepperwort, endive, and rose petals (A) are all edible. Oaktree leaves are used for making dye. 24 These types of produce, therefore, are subject both to the restrictions of the Sabbatical year and to removal. The types of produce listed at D, on the other hand, meet neither of the criteria stated at M. 7: lB. Such produce is subject neither to the restrictions of the Sabbatical year nor to the law of removal (E~F).

A. R. Meir (E: Judah) sqys, "7he monry [resulting .from the sale if the produce listed at M. 7:2H, ]] is removed anytime bifbre the New Year [if the eighth year], B. 7hry said to him, "[7he plants] are not subject to removal. [7hus] by an argument a minori ad majus [it is clear that] the monry [received .from the sale if produce likewise] is not [suliject to removaW' [= M. 7:20-P].

19 So Danby to M. Pes. 2:6. See the New Columbia Encyclopedia, p. 2103, which notes that "most species of pepperwort are weedy, but one-the garden cress (Lapidum sativum)-is sometimes cultivated as an annual salad plant. 20 Jastrow, p. 501, s.v., hrflbyn', translates "creeper on palm trees." See New Columbia Encyclopedia, p. 529, which notes that true endive has been used as a salad vegetable since antiquity. 21 Jastrow, p. 375, s.v., wrd. 22 Jastrow, p. 773, s.v., myl', translates "a species of oak from which the gallnut is collected (quercus il!foctoria) or the acorns of which are used as tanning material (quercus aegilops or Oak of Bashan)." 23 So Jastrow, p. 640, s.v., klwpsyn translates "Lesbians, a species of figs." 24 It seems that the insects which live on the leaves, rather than the leaves themselves, are the source of the dye. See New Columbia Encyclopedia, p. 1982: "The Mediterranean Kermes oak (Qyercus coccifera) is host to the kermes insect, source of the world's oldest dyestuff" See also the entry, "Kermes," ibid., p. 1470.

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C. He said to them, "I adopt a more stringent position with regard to the money [resulting from the sale of such produce] than to the produce \yqr) itself." D. Oil [pressed from olives grown during] the Sabbatical year-they light [a lamp] with it. E. [However, if a householder] sold [this oil] and purchased [with the resulting money] different [oil]-they do not light [a lamp] with it [i.e., the new oil]. T. 5:4

T. cites the dispute between Meir and sages and supplies Meir's defense of his position. Meir holds that the argument a minori ad mqjus is inapplicable here, for reasons which I have explained in my comment to M. 7:2. D~E is separate, for it refers neither to perennials, nor to the question of removal. It has been placed here because it presents a case in which more stringent restrictions apply to produce purchased with produce of the seventh year than to this original produce. This unit appears again at T. 6:14, where it belongs, and I will explain it fully there. A. (1) Crozophora tinctoria, 25 (2) bulb of omithogalum, 26 (3)yar'anah [an alkaline plant used as soap], 27 (4) lixivium [a sort of soap], 28 and (5) 'aha! [another plant used as soapJ29 B. are subject to [the restrictions tifJ the Sabbatical year C. and the man'!)! [resulting .from the sale qf this produce] is suldect to [the restriction tifJ the Sabbatical year. D. And th'!)! are subject to removal, E. and the man'!)! [received .from the sale qf this produce] is subject to removal (= M. 7:1C~F). F. (1) Carob root, (2) the root of thoms, 30 (3) sumac leaves, 31 (4) white blossom 32 and rice.

25 A plant used for dyeing; so Lieberman, (TK, p. 549) on the basis of Loew (Flora, I, p. 595). Jastrow (p. 720, s.v., lfyfyt) translates 'juice of a plant used for drying" (presumably should be "dyeing"). 26 See footnote 20 above. This plant appears at M. 7:2Z as a perennial which is not subject to removal. See Lieberman's extended discussion of the sources related to the identity of this plant, TK, p. 550. See also, Loew, Flora, I, p. 598. 27 So Jastrow, p. 597, s.v., yfnh. See also Loew, Flora, I, p. 359. 28 So Jastrow, p. 150, s.v., bwryt. See also Loew, Flora, I, p. 642ff. 29 So Jastrow, p. 20, s.v., 'hl. See also Loew, Flora, ibid. 30 So Jastrow, p. 11, s.v., 'gh. 31 Jastrow, p. 21, s.v., 'wg, translates "red berry of the Venus summachtree." On this and on the preceding plant name, see Lieberman, TK, p. 551. Sumac leaves are high in tannin, used as mordant in dyeing. 32 Jastrow, p. 1223, s.v., prh translates "White Blossom, name of an aromatic shrub."

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G. are exempt from removal, H. and the monf!Y [received from the sale (= M. 7:2U-V).

if this

produce] is exempt from removal

T. 5:5-6 T. provides further examples of produce which meet the criteria set forth at M. 7:1 B and 7 :2H. Crozophora tinctoria and bulb of ornithogalum (see M. 7:2H) are species of plants used for dyeing. The remaining produce listed at A, though normally used for soaps, are deemed to be types of dyeing matter. A. (1) Din [an unidentified plant], (2) ba,s_ar [an unidentified plant], and (3) seed of woad 33 [which are neither edible nor used as a dyeing matter and so, are not subject to the restrictions of the law according to the rule of M. 7: 1B] B. [may not be sown during the Sabbatical year], but are sown [instead] in the year following the Sabbatical, C. because it is their purpose [to yield produce which is a kind of dyeing matter]. T. 5:7

T. takes up an ambiguous case with respect to the rule of M. 7:1-2. Seed of woad, which is neither edible nor a kind of dyeing matter, should not be subject to the restrictions of the Sabbatical year. This seed, however, produces woad, a kind of dyeing matter which is subject to the restrictions of the law (see M. 7:1L). Accordingly, the seed may not be planted during the Sabbatical year. 7:3-4 A. The husk and blossom of pomegranates, 34 walnut shells, 35 and pits of fruit 36 [which are types of dyeing matter] B. are subject to [the restrictions of] the Sabbatical year, C. and the money [received from the sale of this produce] is subject to [the laws of] the Sabbatical year [cf. M. 7: 1C-D]. D. The dyer may dye [with produce of the Sabbatical year] only for himself, E. but [the dyer] may not dye for a fee.

33

See footnote 10 above. See also Lieberman, TK, p. 551 and Loew, Flora, I, pp.

494ff.

Husks of pomegranates have medicinal value as vermifuge. Walnut shells are used as a dye. See New Columbia Encyclopedia, p. 2923. 36 Jastrow, p. 271, s.v., gr'yn translates "globule, especially the stone or kernel of a stone fruit, nut, etc." See Bert., who says they are edible. According to Correns, Sabbatical, p. 117, note 29, they are used in making dye. 34 35

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F. For they may not do business with: 1) produce of the Sabbatical year, 2) firstlings (Num. 18:15-18), 3) heave-offering (Num. 8:8-13) 4) carrion (Dt. 14:21 ), 5) terifah meat (Ex. 22:30), (6) abominations (Lev. 11: 1-4 7), or 7) creeping things. G. And during the Sabbatical year one may not gather (reading lwqt for lwqhj3 7 vegetables [growing in] the field and sell them in the market. H. But [if] one gathers (T 3 reads: buys) [vegetables], his son may sell [them] for him. I. If one buys [produce of the Sabbatical year] for his own use, and left [some of the produce unused] J. he is permitted to sell [the produce which remained]. M. 7:3 K. If one bought a firstling [which is blemished and so, unfit for consumption by priests, cf. M. Bek. 5:2] for his son's wedding feast or for a festival and did not need it L. he is permitted to sell [the firstling]. M. Hunters of wild animals, fowl or fish who accidentally caught (fn;;;dmnw lhm) unclean animals [cf. Lev. ll:lff.] N. are permitted to sell [such unclean animals] (S, b. Pes. 23a add: to gentiles). 0. R. Judah says, "Even one who [is not a hunter and who] accidentally encountered (ntmnh lw lpy drkw) [an unclean animal] may buy and sell [it], P. "so long as he does not make his livelihood in this way." Q But sages prohibit [acquiring an unclean animal for the purpose of selling it]. M. 7:4 (M-N: b. Pes. 23a) The central point of the discussion is that people may not conduct business with sanctified or forbidden foods (F). Since people are not free to eat these foodstuffs, they also may not benefit from them in other ways, by deriving financial gain from their sale. This principle explains the prohibition against dyeing for a fee during the Sabbatical year which is introduced in turn by the list of dyeing materials (A-C) 38 that are subject to the restrictions of the law (c( M. 7: 1-2). The series of rulings that follows (G-H, I-J, K-L, M-N, 0-P, vs. Q) takes up a critical question: What constitutes doing business? Four separate rules claim that a commercial transaction is defined as acquiring something for the purpose of selling it. At G, for example, a person gathers produce of the Sabbatical year in order to sell it in the market. This is

37 This reading is supported by T. 5:10, Nachmanides' Commentary to Lev. 25:5 and Tosafot to b. A.Z. 62a among others. See the lengthy note in Sachs-Hutner, pp. 60-l. 38 So Correns, Sabbatical, p. 11 7, note 31.

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forbidden. The householder at H, however, gathers produce for the use of the household alone. Since he picked these vegetables as food for his family, his son may sell them in the event that he gathered more than the family could consume. 39 Similarly, people may sell sanctified foods which they acquired solely for their own use (I-J, K -L) and hunters may sell forbidden foods which they caught accidentally (M-N). At 0-P vs. Q, Judah and sages dispute whether a person who finds an unclean animal may pick it up and sell it to others. Sages (Q) carry forward the position of the foregoing rules. People may not acquire an unclean animal for the purpose of selling it, because this constitutes trading in forbidden foods. Judah proposes a different definition of engaging in business. On his view, the way in which people earn their living is the critical consideration. One may trade in unclean animals occasionally, provided that this does not become one's primary source of income (0-P). A. (1) Dyers and (2) fatteners (of animals] 40 B. may buy coarse bran (mwrsn) from any place and need not refrain (from doing so, even though the bran is produce of the Sabbatical year]. C. (Ed. princ. omits:) [7hry mcry not do business with] carrion (= M. 7:3F4). D. And they do not sell it (i.e., the carrion] on strings [in the manner of properly slaughtered meat], E. but they sell it limb by limb on top of boards (mtwt). T. 5:8

T. provides two qualifications of Mishnah's rules. Coarse bran is considered refuse. Even though this produce is used by dyers and as feed for animals, therefore, it is not deemed subject to the restrictions of the law. C-E cites and qualifies M. 7:3F4. Mishnah's ruling prohibits one from selling carrion only if this meat could be mistaken for that of properly slaughtered animals. This meat may be sold, however, in a manner which indicates that it is carrion.

39 Bert. and TYY claim that the point of H, that the son may sell produce that the father has gathered, is that this avoids the appearance of engaging in business. The rule which follows at 1-J, however, strongly suggests that we are dealing with a householder who has brought produce for his household, as indicated by the fact that his son takes excess food to the market. Moreover, the entire discussion clearly concerns the definition of a business transaction, while the issue of avoiding the appearance of committing a transgression is not raised. 40 So Jastrow, p. 1156, s.v., Pfm.

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A. One may not bring (1) village dogs/ 1 (2) porcupines, 42 (3) cats or (4) apes (reading with E: wqwpwt; V, ed. princ. read: wqypwt) B. to sell them to a gentile and to make a profit (wlyskr) 43 with them. C. However, [as regards] (1) fish-brine, 44 (2) cheese of Bithynien,45 (3) or bread and (4) oil of theirs [i.e., of gentiles]D. it is permissible to sell them to a gentile and to make a profit with

them.

T. 5:9 T. amplifies the rule of M. 7:3F6. The animals listed at A may not be eaten by Israelites. In accordance with the ruling of M. 7:3F, one may not trade in these animals. Foodstuffs produced by gentiles, however, may or may not contain substances which Israelites are prohibited from eating. For this reason, Israelites may trade in such foods. A. [During the Sabbatical year] one mqy not gather vegetables which grow wild and sell [them] in the market. B. But [if] one gathers [vegetables], his son may sell [them] for him (= M. 7:3G-H). C. R. Simeon b. Eleazar says, "Also: one may hire workers who will bring [the vegetables] (reading with Lieberman, T.{,, p. 187, wyknysw for wyknys) into [the farmer's] house." D. One who buys a firstling [which is blemished and so, urifit for consumption by priests, cf. M. Bek. 5:2] for his son's wedding fiast or for a fistival, and does not need it, E. it is permitted to sell [the firstling] (= M. 7:41-K). F. Rabbi says, "I say that he may not sell it for a profit (fl' ymkmw '[' ldmyw)." T. 5:10

T. takes up two questions concerning what constitutes doing business with produce of the Sabbatical year (cf. M. 7:3F). Simeon (C) holds that hiring workers to bring produce in from the fields does not constitute doing business with the produce. The householder has gathered these vegetables for his own use. On Rabbi's view (F), one may not sell an unneeded firstling for profit. A sale for profit constitutes a forbidden business transactions.

41 Jastrow, p. 624, s.v., kwpry translates "Village dog, ferocious dog." Likewise Freimark, Schebiit, p. 224. See, however, Lieberman, TK, p. 552, note 27. 42 So Jastrow, p. 443, s.v., hwidh. 43 Reading with Lieberman, T?,, p. 187, note 22. 44 Jastrow, p. 750, s.v., mwryys translates "brine, pickle containing fish-hash and sometimes wine." 45 So Jastrow, p. 206, s.v., gbynh; see also p. 29, s.v., 'wnyyqy.

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7:5

A. Young sprouts of the service tree 46 and of the carob tree B. are subject to [the restrictions of] the Sabbatical year, C. and the money [received from the sale of this produce] is subject to [the restrictions of] the Sabbatical year. D. (K and 7 MSS. lack: D-EJ4 7 They are subject to removal E. and the money [received from the sale of this produce] is subject to removal [cf. M. 7: 1C-F]. F. Young sprouts of the terebinth, 48 the pistachio tree/9 and the whitethorn50 G. are subject to [the restrictions of] the Sabbatical year, H. and the money [received from the sale of such produce] IS subject to [the restrictions of] the Sabbatical year. I. [But they] are exempt from removal, J. and the money [received from the sale of this produce] is exempt from removal [cf. M. 7:2S-V]. K. But the leaves [of the trees listed at A and F] are subject to removal, L. because they fall off of the stem (m'byhn). M. 7:5

The types of edible produce listed at A and F fall into the category of perennials. They therefore are subject to the restrictions of the Sabbatical year but are exempt from the law of removal (cf. M. 7:2R-V)Y K-L make a separate point. The leaves of these sprouts are annuals. They are subject to removal, in accordance with the rule at M. 7:1B-F. A. Young sprouts qf the terebinth, the pistachio tree, the white-thorn and garden cress52 [= M. 7:5D]. B. R. Meir says, "[If one has gathered] sprouts with leaves [they] are exempt from (so V; E reads: subject to) removal." C. But Sages say, "Leaves with sprouts are subject to (so V; E reads: exempt from) removal." D. R. Simeon says, "The sprouts are exempt from removal, but the leaves are subject to removal. E. because [the leaves] fall off (Infrw) qf the stem" [= M. 7:5:2G-H with slight variation]. 46 So Jastrow (p. 411, s.v., zrd), who also notes that the interior portion of these sprouts was eaten as a relish. 47 I can find no botanical evidence which confirms or denies that these types of produce meet the criterion of produce subject to removal. 48 Jastrow, p. 66, s.v., 'lh. 49 Jastrow, p. 145, s.v., bwtn'. 50 So Danby; Jastrow, p. 42, s.v., 'td, translates simply "thorn." 51 This is assumed by Mishnah's ruling. I can find no botanical information to confirm this, however. 52 Jastrow, p. 16, s.v., 'dl, translates "garden-cress, summer-savory." See Loew (Flora, I, 505) who identifies this as lepidium latifi;rum.

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F. And all [of the sprouts mentioned at A) which began growing during the sixth year and continued growing during the Sabbatical year, G. or which began growing during the Sabbatical year and continued growing during the year following the Sabbatical, H. are deemed as trees (and so, are subject to the laws of the year during which they began growing], I. Except for garden cress, which is deemed as a vegetable [and so, is subject to the laws of the year during which it was picked). T. 5:11

T. takes up an ambiguous case left open by Mishnah. Sprouts are gathered together with their leaves. Meir (B) holds that they are subject to the restrictions of the Sabbatical year, for they are governed by the rule regarding leaves (cf. M. 7:5G). Sages (C) maintain that they are governed by the rule regarding sprouts (cf. M. 7:5F) and so are exempt. Simeon (D-E) resolves the ambiguous status of this produce on the basis of Mishnah's own language. Since the leaves drop off the stem (i.e., the sprout), they are separate. They alone are subject to removal, the leaves are not. 53 F-I refers to the ruling cited at A, but makes a separate point. Cress is a vegetable, unlike the other items listed at A, which are trees. As a vegetable, cress is subject to the laws of the Sabbatical year only if it is picked during that year. B. Olive leaves, leaves of reed, and carob leaves C. are exempt from removal, D. because they do not disappear from the field, [i.e., even though they may fall off the stem; (cf. M. 7:5K-L)). T. 5:12b

The types of leaves listed at B occasionally fall off of the stem. 54 In general, however, these types of leaves grow and remain on the branch for more than one year. Since all of the leaves do not fall off at once,

53 Lieberman, TK, pp. 555-6, following y. Sheb. 7:6 [37c], interprets the dispute here between Meir and sages in line with the dispute of M. 9:5. On Lieberman's view, Meir follows the opinion of Eliezer (M. 9:5B). He holds that when several sorts of produce have been stored together, they must all be removed together, as soon as the first of them disappears from the field. Sages, like Joshua (M. 9:5C), hold that they must be removed only when the last of them disappears from the field. This interpretation, however, is forced. T.'s language bears no resemblance to that of M. 9:5. Moreover, the issue raised by M. 9:5 has no place here, since T.'s problem is that only the leaves (and not the sprouts) are subject to removal. These difficulties can be avoided by interpreting the pericope in light of M. 7:5 alone. 54 Even evergreens, such as the plants listed at B, lose some of their leaves. See New Columbia Encyclopedia, p. 2105, s.v., "perennial."

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there is no point at which they all disappear from the field. Accordingly they cannot be subject to removal. T. 5:12a is discussed after M. 7:6, to which it is supplementary. 7:6 A. Rose, henna, 55 balsam, 56 and lotus 57 B. are subject to [the laws of] the Sabbatical year, C. and the money [received from the sale of this produce] is subject to the [laws of] the Sabbatical year. D. R. Simeon says, "Balsam is exempt from the laws of the Sabbatical year, E. "because it is not [deemed to be] produce [but rather a resinous sap secreted by the plant]." M. 7:6 (A~B: b. Nid. 8a; C~D: b. Nid. 8b; y. Orl. 1:5 [61b]) Aromatic plants (A) are classified as dyeing matter58 and so are subject to the laws of the Sabbatical year (M. 7:1-2). Simeon (D-E) disputes the rule concerning balsam. He claims that only plants and the fruit that they produce are subject to the restrictions of the law. Since balsam falls into neither category, it remains exempt. A. R. Judah b. Isaiah, the perfumer, testified before R. Aqiba, in the name of R. Tarfon, that balsam is subject to the laws of the Sabbatical year. T. 5:12a (b. Nid. 8b)

Judah supports the position of M. 7:6A-B, against that of Simeon, M. 7:6C-D. 7:7 A. [As regards] a fresh rose [of the Sabbatical year, which is subject to the law of removal and] which one preserved in old oil [of the sixth year which is exempt from removalB. [when the times for removal arrives], one takes the rose [out of the oil, and the oil remains exempt from removal. Since a fresh rose does not impart its flavor to the oil, the oil does not take on the status of the rose]. So Danby; Jastrow p. 624, s.v., kwpr, translates "cyprus flower." Jastrow, p. 1352, s.v., qtp, translates "resin gained by tapping, balsam." 57 So Danby; Jastrow, p. 705, s.v., ltwm, translates "gum-mastich, a resin used as perfume." Jastrow also cites the interpretation of Maim. (Comm.) that lwtm is a chestnut, but correcdy notes that this does not suit the context. 58 So MR. This appears to be the correct understanding of the ruling inasmuch as henna is both a dye and the source of a perfume. See Encyclopedia Britannica, vol. 11, p. 356. 55 56

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C. But [as regards] an old [rose, of the Sabbatical year which is .subject to the law of removal and which one has preserved] in new [oil, of the year following the Sabbatical]D. [the oil] is subject to removal. [Since a dried rose does impart its flavor to the oil, the latter does take on the status of the rose]. E. [As regards] fresh carobs [of the Sabbatical year which are subject to the law of removal and] which one preserved in old wine [of the sixth year], F. or old [carobs of the Sabbatical year which one preserved] in new [wine of the year following the Sabbatical]G. [in both cases, the wine] is subject to removal, [since both fresh and dried carobs impart their flavor to wine]. H. This is the general rule: I. [As regards] any [produce which is subject to removal and] which imparts its flavor [to other, exempt produce with which it is mixed]]. one must remove [the mixture, in accordance with the law of removal]. K. [This is the case only if the two lots of produce in the mixture are] of two separate species. L. [But if the two lots of produce are] of the same speciesM. Even a miniscule amount [of produce subject to the law of removal renders the other produce with which it is mixed subject to removal. This is the case whether or not the forbidden produce would flavor the permitted produce]. N. Even a miniscule amount of [produce subject to the restrictions of] the Sabbatical year renders subject [to these restrictions permitted produce] of the same species [with which it is mixed]. 0. But [if the two lots of produce are] not of the same species, P. [only produce of the Sabbatical year which] imparts its flavor [renders the other produce forbidden]. M. 7:7 (M-N: T. Ter. 5:15; b. Ned. 58a)

The problem arises when produce of the Sabbatical year becomes mixed with produce of other years. We wish to know whether the common produce becomes subject to the special restrictions that govern the handling of produce of the Sabbatical year (see Chapters Eight and Nine), or whether it remains exempt from these restrictions. The answer is spelled out fully in the general rule at H-M, reiterated at N-P. Let us begin by explaining this general theory of mixtures and then turn to the formally separate rule at A-G, which exemplifies it. Only if produce of the Sabbatical year becomes inextricably mixed with common produce does the mixture as a whole become subject to the restrictions of that year. That is to say, if even the smallest quantity of sanctified food is absorbed into the common produce, the latter takes on the status of produce of the seventh year. This rule assures that even miniscule amounts of sanctified produce never are neutralized in a mixture, but always remain subject to the restrictions of the law. Jacob Neusner - 978-90-47-41637-1 Downloaded from Brill.com02/08/2023 11:54:33AM via Universite degli Studi di Milano

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If, on the other hand, it is possible to remove produce of the Sabbatical year from a mixture intact, the ordinary produce remains unaffected. This principle generates two separate rules, one governing mixtures composed of two distinct species of produce, and another governing homogeneous mixtures. We determine whether two separate species of produce have combined to form a single entity by examining the flavor of the resulting mixture. If the flavor of the forbidden produce has pervaded the formerly exempt food, we know that some produce of the Sabbatical year has been absorbed into the mixture. The entire mixture, therefore, becomes subject to the restrictions of the law (I-K, 0-P). Mixtures containing only a single species of produce are another matter. These two batches of food immediately combine to form a single homogeneous mixture. Since both lots of produce in this case taste the same, it is impossible to remove the sanctified part intact. All such mixtures then are subject to the restrictions of the Sabbatical year (L-M, N-0). The opening rule at A-G exemplifies the principle of I-K. Since a fresh rose does not flavor oil in which it is placed, it does not affect the status of that oil (A-B). A dried rose, on the other hand, does impart its flavor to oil and so renders it subject to the law of removal (C-D). Fresh and dried carobs, by contrast, are subject to a single rule. Since both impart their flavor to wine, they render the wine subject to the law of removal (E-G). 59 A. A .fresh rose [if the Sabbatical year] which has been preserved in old oil [if the sixth year]B. one removes the rose [.from the oi~, and the oil is then permitted [i.e., not subject to remova~ . C. But an old [rose, if the Sabbatical year which has been preservedJ in new [oil, if the year following the Sabbatica~D. [the oi~ is suliject to removal [= M. 7:7A-D with slight variations]. T. 5:13 E. Fresh carobs [if the Sabbatical year] which have been preserved in old wine [if the sixth year]-[= M. 7:7E] F. one removes the carobs, and the wine is permitted.

59 Maim. (Comm.) interprets A-G in this way. In Sabbatical 7:21-22, however, he claims that at A-B the oil is exempt from removal because the rose is not yet subject to removal while at C-D the rose is already subject to removal and so renders the oil subject as well. He interprets E-G in line with the general rule regarding flavoring. This interpretation is unacceptable, however, for it severs A-D from E-G, while the formal contrast between them makes it clear that they are to be read as a single unit.

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G. But old [carobs if the Sabbatical year which have been preservedJ in new [wine, if the year .following the Sabbatica~H. [the wine together with the carobs] are subject to removal [+M. 7:7F-G]. T. 5:14

T. reiterates much of M. 7:7, disputing only the rule regarding fresh carobs, M. 7:7E-G. According to T., fresh carobs and fresh roses are subject to a single rule, for neither imparts its flavor to other produce with which it is mixed.

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MISHNAH-TOSEFTA SHEBIIT CHAPTER EIGHT

Produce that grows during the Sabbatical year is sanctified, because during the seventh year ownership of the Land's yield reverts exclusively to God. Since God owns these crops, they are subject to special restrictions that do not apply to the harvest of other years. These restrictions are of two sorts. First, produce of the Sabbatical year must be used only as God intends. He specifically designates these crops as food for Israelites and their livestock (Lev. 16:6~ 7). Second, all Israelites must share equally the agricultural products which God has provided for them. Individuals thus may not treat that which grows during the Sabbatical year as if it were their own. With the theory of the chapter in hand, let us not turn to the details of the law, which spell out the restrictions that govern produce of the Sabbatical year (M. 8: 1~6) and the penalties imposed for violating them (M. 8:7-11 ). Israelites must use edible produce of the Sabbatical year for the purpose that it generally serves in other years of the Sabbatical cycle. That is to say, that which people ordinarily use only as food for human beings or as animal fodder may be used during the Sabbatical year only in these ways. Since, as Lev. 16:6~7 tells us, God sets aside these crops for the sustenance of Israelites, people may not waste this food by using it for any other purpose. This general rule, stated at M. 8: 1 and reiterated at M. 8:2, forms the foundation of all that follows. Since this food is designated by God for a specific purpose, individuals may not treat crops of the Sabbatical year as they do ordinary produce of other years. M. 8:3~5 takes up the restrictions that apply to transactions involving produce of the Sabbatical year. Mishnah's authorities permit people to trade in these crops, so long as they do so in a manner that indicates that they do not own them. One may not sell this food as one does during other years, namely, using standard measurements. This prevents the seller from calculating the precise value of that which he sells, as he would in an ordinary business transaction (M. 8:3). Moreover, since individuals do not own edibles of the Sabbatical year, they may not use them to discharge personal financial obligations. Gifts are permitted, however, for these are not given to repay debts (M. 8:4-5). Finally, people must process this produce in an unusual

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place or with abnormal tools. This again indicates that this food is sanctified, unlike crops of other years (M. 8:6). At M. 8:8-8:9C, we tum to the rules that apply when people violate the foregoing restrictions. People must rectify any misappropriations of this food by acquiring other edibles and treating them like the original sanctified produce. This assures that the sanctity which inheres in the agricultural products of the Sabbatical year never is lost (M. 8:8, 8:9C. Eliezer, M. 8:9C, makes a separate point concerning the misuse of sanctified produce. People may not derive benefit from a transgression. Accordingly, if a person wastes oil of the Sabbatical year by rubbing it on a leather garment, the clothing must be burned to assure that no one wears it. These rules are both preceded and followed by supplementary materials. M. 8:7 presents two rules that introduce the discussion of misusing produce of the Sabbatical year. At M. 8:7A-C, we consider the extent to which a person is responsible to keep vegetables of the Sabbatical year from becoming inedible, which would prevent them from being used for their designated purpose. At M. 8:7D-E, Mishnah's authorities present the principle that produce of the Sabbatical year never loses its sanctity. This explains why the householder who misuses this food must substitute other produce and treat it in accordance with the restrictions of the Sabbatical year. A short appendix (M. 8:9D-8: 10) to Eliezer's lemma has no bearing on the subject matter of the tractate. The chapter's closing rule, M. 8:11, disputes Eliezer's position that one may not benefit from produce of the sabbatical year which others have handled improperly. 8: l

A. An important general rule they stated concerning [produce of) the Sabbatical year: B. All [produce which during other years of the Sabbatical cycle] I. is used exclusively as food for human beingsC. [during the Sabbatical year] they may not make of [such produce] an emollient for human beings, D. and, it goes without saying, [they may not do so) for cattle. II. E. And any [type of produce) which is not used exclusively as food for human beings [i.e., which is also used as emollients for people]F. they may make of [such produce) an emollient for human beings, G. but [they may] not [do so] for cattle. III. H. And any [type of produce) which is not used exclusively as food for human beings or for cattle [i.e., which might either be eaten or be used as fuel for burning]-

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I. [if the one who gathered it) intended [to use) it [both] as food for human beings and as food for cattle, J. they impose upon it the stringencies [which apply to food) for human beings, and the stringencies [which apply to food) for cattle. K. [If the one who gathered such produce) intended [to use) it [only] for wood, L. lo, it [this produce is deemed to be] like wood [and may be burned], M. for example, savory, 1 marjoram 2 and thyme. 3 M. 8: l (y. Shah. 7: l [8d); Sifra Behar l: 12)

To understand the pericope before us, we must first review Scripture's rules governing the use of produce of the Sabbatical year. God designates that which grows during the seventh year for the sustenance of Israelites and their livestock. This is stated explicitly in Lev. 25:6, "And the sabbath produce of the land shall provide food for you .... " Mishnah's authorities express this principle in the rule that people may use edible produce of the seventh year only as they ordinarily use such produce during other years, namely, as food or medicine. The law thus assures that the Land's yield will be available to meet the basic needs of Israelites during the Sabbatical year, in accordance with Scripture's injunction. This central principle is worked out in a three-part construction. First, produce which generally is used exclusively as food for people may not be used during the Sabbatical year for any other purpose (B-D). Second, produce which people generally use either as food or as a lotion, may be used during the Sabbatical year only in these ways (E-G). Finally, at H-L+ M, we turn to an ambiguous case, produce which during other years sometimes is used as food or fodder and sometimes as fuel. How are such plants to be used during the Sabbatical year? In this case, the intention of the farmer who gathers this produce resolves its ambiguous status. If he collects it as food or fodder, it is treated as such. Like food for people, this produce may not be used as a lotion, and, like animal fodder, it may not be used as wood for burning. 4 If, on the other hand, people gather this pro-

1 So Danby; Jastrow, p. 974, s.v., ~'h, translates "a plant classified with hyssop, Satureia thymbra (savory)." 2 So Danby; Jastrow, p. 37, s.v., 'zwb, translates "hyssop." 3 Jastrow, p. 1343, s.v., kwmyt, translates "thyme or origanum."

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duce for use as fuel alone, it is not subject to these restrictions (K-L). As we recall from M. 7: 1-2, wood is not governed by the restrictions of the Sabbatical year at all. A. R. Eleazar says, "Bundles of savory (E lacks: savory), maijoram and thyme which one gathered for [use as] woodB. "they may (reading with Lieberman, TK, p. 558; E, V, and ed. princ. read: may not) bum them. C. "[If they were gathered for use] as animal feedD. "they may not (reading with Lieberman, TK, p. 558; E, V, and ed. princ. read: may) bum them." 5 E. R. Simeon says, "Also: stalks [of savory, maijoram or thyme] which grew in an irrigated field (following E, ed. princ. which read: byt, V. reads: byn) that has dried upF. "they may derive no benefit from them [after the time when the law of removal has taken effect]." T. 5:15 G. Leeks6 and wild herbs 7 that were gathered for their moisture [i.e., in order to moisten wheat; so Lieberman TZ, p. 189]H. [the farmer] is entitled (reading with E, V, ed. princ. read: is not) to use them for their moisture. I. [But if they were gathered for use] as animal feed]. [the farmer] is not (reading with E; V, ed. princ. read: is) entitled to use them for their moisture. T. 5:16

T. spells out the implications of the ruling at M. 8:1K-M. The permissible uses of savory, marjoram and thyme are determined by the purpose for which they were gathered. If gathered for use as wood, they are deemed to be wood and may be burned (A-B). If gathered as animal feed, however, they may be used only for this purpose (C-D). The parallel ruling at G-J makes the same point for produce which is used ordinarily either to moisten other produce or as animal feed. E-F

4 Maimonides (Sabbatical, 5: II), Bert., TYT, and TYY, following y. Sheb. 8: I, interpret M. 8: lJ to mean that this produce, like produce used exclusively as food for animals, may not be cooked, but must be eaten raw. Our pericope, however, knows no such distinction. Moreover, T. 5: 15C-D makes it clear that the issue is using this produce as wood, rather than as animal feed. 5 The logic of the rulings at A-B and C-D demands that this is the correct reading despite manuscript evidence to the contrary. 6 Jastrow, p. 495, s.v., &;yr. 7 Jastrow, p. 1524, s.v., sdh, translates "vegetable growing in the field (in the Sabbatical year)."

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makes a separate point. Stalks of savory, marjoram or thyme may not be used, even for wood, after the field in which they grew has dried up. This is because these edible types of produce are subject to the law of removal. Such produce may not be used after the field has dried up, when like produce is no longer available.

A B. C. D. E.

F. G. H.

Asphodelul' which was gathered for use as animal feed, lo, it is subject to removal. [If it was] placed under a mattress [in order to keep away snakes,p lo, it is as if it has been removed. T. 5:17 Straw of the Sabbatical year [a type of produce which is fit for animal consumption]they do not place it in a mattress [as filling] or mix it with mud [for this produce must be used as animal feed; c£ M. 8:1]. If others placed it [in such places], lo, it is as if it has been removed. T. 5:18

As at T. 5: 15-16, we deal with the rules governing types of produce fit for animal consumption. Asphodelus and straw are perennials and so are subject to the law of removal (cf. M. 7: 1-2). If people handle this produce improperly, however, by placing it in a mattress or mixing it with mud, it becomes impossible to carry out the procedure for removal. The point of C-D and G-H is that once produce has become irretrievable in this way, the householder bears no further responsibility for observing the law of removal. The produce is regarded as if it already had been removed. A [As regards] wine [of the Sabbatical year] which fell into brine-

B. one must remove it [i.e., the wine together with the brine] (E reads: it is forbidden to non-priests; see T. Ter. 9:6B-C). C. R. Eleazar b. R. Simeon says, "Lo, it is as if it has been removed (E reads: it is permitted to non-priests)." T. 6:5 (T. Ter. 9:6)

T. reads together the issues of M. 7:71-J and T. 5:17-19. Wine of the Sabbatical year imparts its flavor to brine with which it is mixed. In accordance with M. 7:7I-J, it renders the mixture as a whole subject to removal (A-B). Eleazar makes a different point. Like straw which 8 So Lieberman (TK, p. 558), on the authority of Loew, Flora, II, p. 153ff. Jastrow, p. 1976, translates "a plant with wooly leaves, mullein." 9 So Lieberman (TK, p. 558), who cites Pliny, book 22, ch. 22, par. 32.

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MISHNAH-TOSEFTA SHEBIIT CHAPTER EIGHT

1689

has been mixed with mud (T. 5:18), wine which has fallen into brine cannot be retrieved. It is deemed to be removed. A. An oven that was fired with straw or with stubble of the Sabbatical year must be cooled down [i.e., one may not cook in it]. B. They sell (omitting with E and ed. princ.: ,wklyn) food for human beings and animal feed [in order] to buy [with the money received from the sale] food for human beings. C. But, they may not sell animal feed [in order] to buy other animal feed. D. And it goes without saying that food for human beings [may not be sold in order] to buy animal feed. T. 5:19

Since straw is generally used as animal feed, it may not be used to ignite an oven (A). This abnormal use of the produce violates the prohibition of M. 8: 1. B-D is separate. Produce of Sabbatical year which is exchanged for other produce of that year is not subject to the rule of M. 8: l. We might have thought that just as produce of its type is ordinarily used, so too, produce may be exchanged only for other produce of the same type. Money received from the sale of produce of the Sabbatical year, however, is invested with the sanctity of that produce. This money may be used only to purchase food for human consumption (B), and not to purchase animal feed (C-D). (See M. 7: 1D and Chapter Seven, note 17. A. B. C. D. E.

Produce of the Sabbatical year [which is fit for human consumption]they do not feed it to cattle, to wild animals or to fowl. If an animal walked on its own under a fig tree and ate figs, or under a carob tree and ate carobs, they do not require him [i.e., the farmer] (so Lieberman who reads: >wtw; E, V, and ed. princ. read: >wth) to chase the animal away (lhhzyrh). F. As it is written, "And your cattle and the beasts in your land may eat all its yield" (Lev. 25:7). T. 5:20 (Sifra Behar 1:7)

T. refines the principle of M. 8:1 by distinguishing between the farmer's intentional misuse of produce and the misuse which results from the animal's eating. The farmer may not misuse food for people by feeding it to animals, in accordance with the rule of M. 8:1 (A-B). He is not responsible, however, if the animal on its own eats the wrong sort of produce. This is because the farmer is not held responsible for the misuse of this produce before he has gathered it. F provides the prooftext for this view.

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1690

TEXT AND COMMENTARY

8:2 A. [Produce of the] Sabbatical year is permitted for [purposes of] eating, drinking and anointing [i.e., as a salve]. B. [That is, one is permitted] to eat that which customarily is eaten, (S adds: to drink that which customarily is drunk) and to anoint [with] that which customarily is [used] for anointing. C. One may not anoint with wine or vinegar, D. but one may anoint with oil. E. And the same Uaw applies] with respect to heave-offering and second tithe. F. [The ruling regarding produce of] the Sabbatical year is more lenient than [the ruling regarding] them [i.e., heave-offering and second tithe,] G. for [produce of the Sabbatical year] is [also] permitted for [purposes of] kindling a lamp. [Clean heave-offering and second tithe however, may not be used for this purpose]. M. 8:2 (A-D: M. M.S. 2:1; Sifre Dt. 107; F-G: Sifra Behar 1:10)

This point, as at M. 8: 1, is that edible produce of the Sabbatical year may be used only as produce of its type ordinarily is used (A-B). C-D exemplify this rule. Since wine and vinegar generally are not used as a salve, during the Sabbatical year people may not use these sorts of produce for anointing (C). Oil, however, which generally is used as an emollient, may be used during the Sabbatical year for this purpose (D). The gloss at E-G extends this principle to other sanctified foods, produce in the status of heave-offering and to second tithe. I cannot explain why oil of the Sabbatical year may be used to kindle a lamp (G), for this directly contradicts the principle that edibles may be used only for eating. Perhaps they regarded lamps as a necessity, and so permitted the burning of oil for this purpose. 10 A. [Produce qf the] Sabbatical year is permitted for [purposes qf] eating, drinking, and anointing. B. To eat that which customarily is eaten, to drink that which customarily is drunk and to anoint with that which customarily is used for anointing [= M. 8:2A-B]. T. 6:1 (T. Ter. 9:10) C. To eat that which customarily is eaten. How so? D. They do not obligate one to eat the peel of a vegetable/ 1 bread which has become moldy, or a dish the appearance of which has changed ()brh swrtw). T. 6:2 (T. Ter. 9:10) 10 TYT, MS, Maimonides (Comm. and Sabbatical 5:1) cite Sifre 107 or Sifra Behar l: l 0 which derive this ruling from the word thyh ("it shall be ... ") in Lev. 25:7. 11 See Jastrow, p. 1392, s.v., qnybh, who translates "those parts of a vegetable which are stripped off, refuse."

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MISHNAH-TOSEFTA SHEBIIT CHAPTER EIGHT

1691

E. To drink that which customarily is drunk. How so? F. They do not obligate one to drink (gwm') a sauce of oil and garum 12 or a sauce of vinegar and garum, 13 or to drink wine together with its lees. G. (E lacks: G-H) One who has a sore throat may not gargle 14 with oil [of the Sabbatical year). H. But he may add much oil to a sauce of oil and garum and swallow. I. One who has a toothache may not rinse them [i.e., his teeth) in vinegar [of the Sabbatical year) and [then) spit it out. J. But he may rinse [with vinegar] and [then) swallow. K. And one may dunk [his bread in any of the liquids mentioned above] in the usual manner and need not scruple [that, by eating such bread, he has improperly consumed produce of the Sabbatical year). T. 6:3 (E-F: T. Ter. 9:10; G-H: T. Ter. 9:12; I-]: T. Ter. 9:11) L. To anoint with that which customarily is used .for anointing. How so? M. A person may put oil [of the Sabbatical year] on a wound, N. provided that he does not take [the oil) with a rag (E adds: or patch of cloth) [which will absorb and thereby waste some of the oil] and put [the rag] on his wound. 0. (E lacks: 0-R) One who has a headache, or anyone on whom sores 15 appeared (?w), may anoint with oil [of the Sabbatical year). P. But he may not anoint with wine or vinegar. Q For [as regards) oil-its normal use is for anointing. R. But [as regards) wine and vinegar-their normal use is not for anointing [cf. M. 8:2C-D). T. 6:4 (T. Ter. 9:13-14)

T., at C-D, E-K and L-R, elucidates in sequence the three parts of M. 8:2's rule. Only food need be eaten (C-D+E-F vs. G-H+I-j). K is obvious. Solids and liquids need not be consumed separately if ordinarily they are eaten together. 0-R repeats M. 8:2B-D. Oil, unlike wine and vinegar, may be used for anointing. Still, one may not anoint m a way which wastes some of the oil (M-N). A. One may put a cake of pressed figs or dried figs [of the Sabbatical year] in fish-brine (E, ed. princ., lack: hmwryf) [or in a] cooked dish [in order to flavor them] in the manner in which he adds spices. B. But he may not Uater remove them and) press them to squeeze out their juices [since this ruins the figs for subsequent consumption).

So Jastrow, p. 84, s.v., '11:Jigrwn. Jastrow, p. 64, s.v., 'ksygrwn. 14 Jastrow, p. 1122, s.v., 'fr, translates "to keep a liquid in the throat for the sake of lubrication." 15 Jastrow, p. 448, s.v., htt, translates "scab, scurf, sores." 12

13

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TEXT AND COMMENTARY

C. But [in the case of] spices [of the Sabbatical year] this is permitted (E reads: forbidden) D. since this is their normal use. T. 6:6 (T. Ter. 9:7) E. One who ties in a bundle spices [or the Sabbatical year] and places them in a cooked dishF. if they lose their flavor (btl {mn), they are permitted [i.e., exempt from the restrictions of the Sabbatical year]. 16 G. But if [they do] not Uose their flavor], they are forbidden, [i.e., subject to the restrictions of the law]. T. 6:7 (T. Ter. 9:7; T. M.S. 2:2)

The discussion of the permitted uses of produce of the Sabbatical year continues. Figs are added to other foods for flavor. Figs of the Sabbatical year may be used in this way, provided that one does not spoil them for later consumption (A-B). Spices, on the other hand, normally are not eaten. In line with M. 8:2's rule, one who uses them need not save them for consumption (C-D). E-G follows logically from Mishnah's rule. Since spices are not eaten, once they have lost their potency, they no longer serve any purpose. When this happens, they are no longer subject to the restrictions of the law. A. They may not make wine [from grapes of the Sabbatical year] into an unguent, 17 B. nor oil [from olives of the Sabbatical year] into spiced oil. 18 C. But if one made the wine into an unguent, or the oil into spiced oil, he may anoint [himself] with the oil, but may not anoint [himself] with the wine or vinegar. D. For [as regards] oil-its normal use is for anointing. E. But [as regards] wine or vinegar-its normal use is not for anointing. T. 6:8 (T. M.S. 2:3)

This point, stated explicidy at D-E, is obvious from what has preceded (c£ M. 8:2C-D, T. 6:4Q-R). People may not turn edible produce into ointments. If one violates this rule, one must use the resulting ointment in accordance with the permissible use of the original produce.

16 Haas, Second Tithe, pp. 41-42, translates "if their flavor is dissipated, they are permitted [to be used in this way)." While this is a plausible reading, the point of the rule seems to be not whether the spices may be used, but their status after they have been used. See also, Peck, Priestly Gift, pp. 308-9. 17 So Jastrow, p. 68, s.v., 'lwnt;yt. Jastrow notes two other definitions of the term, "an aromatic water," and "a wine (vinum oenonthium) used especially after bathing." 18 So Jastrow, pp. Ill 0-1111, s.v., 'rb.

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MISHNAH-TOSEFTA SHEBIIT CHAPTER EIGHT

1693

A. A person may not put oil of the Sabbatical year on a slab of marble in order to roll on it [and anoint himself, for the oil which remains on the slab is wasted] . B. Rabban Simeon b. Gamaliel (E reads: Rabbi) permits [since marble is not porous, no oil will be wasted]. C. (E lacks: C-D) [As regards] oil of the Sabbatical year-they do not anoint with it with unclean hands. D. [But if] it fell on his skin, he may rub in it, even with unclean hands. T. 6:9 (T. Ter. 10:10-11) E. [As regards] oil of the Sabbatical yearF. they may not glaze an oven or stove with it [for this is not its primary use]. G. And they may not soften Oit.: anoint) shoes or sandals with it. T. 6:10 (T. Ter. 10:11) H. A man may not anoint his foot with oil [of the Sabbatical year] while [the foot] is in a shoe or sandal]. I. But he may anoint his foot and [then] put on a shoe. ]. (E lacks:) or anoint his foot and [then] put on a sandal. T. 6:11 (T. Ter. 10:11) K. A man may anoint himself with oil of the Sabbatical year and [then] roll around on a new leather spread 19 L. and need not scruple. [Once produce of the Sabbatical year has been used, it is no longer subject to the restrictions of the law]. T. 6:12 (T. Ter. 10:11) M. They may not spice oil of the Sabbatical year [since this will be used for anointing instead of eating]. N. But [during the Sabbatical year] they may purchase in any place spice oil for anointing [on the assumption that it not produce of the Sabbatical year]. T. 6:13 0. (Ed. princ. lacks: 0-P) [As regards] oil of the Sabbatical yearP. they may kindle [a lamp] with it [cf. M. 8:2G]. Q If one sold it [i.e., oil of the Sabbatical year] and purchased [with the proceeds] other oilR. they may not kindle [a lamp] with [i.e., with the oil which was bought]. T. 6:14 (= T. 5:4D-E) S. [As regards] oil of the Sabbatical yearT. they may not put it into a fire [in order to generate heat]-2° U. R. Yose says, "They may soak (J:wb) a bundle of flax stalks (reading with V: ah of heave-offering and a hundred sl ahs plus an additional qab of unconsecrated produce. In such a case, the extra qab of unconsecrated produce indeed is equal in quantity to one sixth of the sl ah of heaveoffering in the mixture. A. 'Orlah and [produce grown in] a vineyard in which were grown diverse kinds of seeds are neutralized [when one part of either of these is mixed] in [a total of] two hundred and one [parts of produce]. B. R. Simeon says, "[They are neutralized when there is one part of these in] two hundred [parts of produce]." C. One does not need to remove (lhwsf), following the emendation of GRA and HD; see Lieberman, TK, I, p. 356) [the forbidden produce from the mixture]. D. And so would R. Simeon say, "Any heave-offering [separated from a kind of produce] that priests are not careful [to keep in a state of cleanness which is neutralized in unconsecrated produce]E. "(V lacks this stich; I follow E and ed. princ., as emended by GRA and HD; see Lieberman, loc. cit.:) one does not need to remove it [from the mixture]." F. (Deleting kgwn with E and ed. princ.) Heave-offering, 'orlah (reading with E and ed. princ.; V reads: trwmt 'wrlh) or [produce grown in] a vineyard in which were grown diverse kinds of seeds, [which became mixed with unconsecrated produce]G. [in cases of] doubts concerning their status, they are [deemed to be] permitted [for consumption] (spqn mwtr). H. [If there is] a doubt (1) [whether or not] they were eaten by a non-priest, a doubt (2) [whether or not] they were stolen, a doubt (3) [whether or not] they were lost, [or] a doubt (4) [whether or not] they fell into unconsecrated produce-[in such cases of] doubt concerning their status, they are [deemed to be] permitted [for consumption]. T. 5:9 (A: see M. Or. 2: l)

A-C+ D-E supplements M., applying the concept of neutralization to the cases of 'orlah and produce grown in a vineyard or orchard in which were grown diverse kinds of seeds. F-H likewise supplements M. 4:7, giving the rule for cases of doubt involving mixtures. The term 'orlah refers to the crop of the first three years of growth of a vineyard or orchard. Such produce may not be consumed (Lev. 19:23). Produce from a vineyard in which were grown seeds of diverse kinds likewise may not be eaten (Deut. 22:9). According to A, produce in either of these categories becomes permitted for consumption when mixed with two hundred parts of permitted produce. 29 Simeon, B, 29

This same rule appears at M. Or. 2: l.

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TEXT AND COMMENTARY

permits a slightly greater proportion of forbidden produce, specifically, one part to a hundred and ninety-nine parts of unconsecrated produce (such that there are in the mixture as a whole two hundred parts) 30 I already have stated (above, p. 1946) that when heave-offering is neutralized, the householder takes from the mixture for the priest a quantity of produce equal to that of the heave-offering which was lost. C states that in the case in which 'orlah or produce grown in a field in which were grown diverse kinds of seeds is neutralized, the householder may consume all of the produce in the mixture, without separating from it a quantity of produce equal to the forbidden produce which fell in. Since, unlike heave-offering, that which was neutralized in the mixture is not an offering which is the property of a particular individual (priest, Levite or poor person), there is no reason for the householder to recover it from the mixture (HD). Simeon, D, states that the same is the case when heave-offering of an undesirable kind of produce is neutralized. Since the priest is not expected to eat such produce, the householder need not give it to him. It is clear then that unconsecrated produce in which heave-offering is neutralized has the status of fully unconsecrated produce. It may be eaten without the further separation of heave-offering. F-G+ H refers to cases in which it is not clear whether or not 'orlah, produce grown in a field in which were grown diverse kinds of seeds, or heave-offering have been mixed with a quantity of unconsecrated produce sufficient to neutralize them. In cases in which produce from such mixtures mqy have been used in an improper manner, we assume that the original mixture contained enough permitted produce to neutralize the forbidden food. 31 The individual involved incurs none of the penalties associated with the improper use of such types of produce. 32 A. R. Judah says," "Sweet pomegranates [in the status of heave-offering]

are forbidden [for consumption as unconsecrated produce] whatever 30 According to both A and Simeon, B, 'orlah and produce grown in a field in which were grown diverse kinds of seeds thus are much more potent than heave-offering in their ability to impose their own status upon produce with which they are mixed. 31 lieberman, TK, I, p. 306, follows HD in claiming that the point is that if someone takes produce from the mixture, we assume that it was forbidden produce which he took and therefore declare the rest of the produce to have become permitted. I do not see how this interpretation follows from the language of T. 32 For instance, one who might have eaten this doubtful heave-offering need not repay its value and the added fifth required in the case of holy things (M. 6: I). If, however, it is certain that an individual ate the possibly forbidden mixture, he is liable to all penalties incurred by one who improperly uses that which certainly is forbidden.

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MISHNAH-TOSEFTA TERUMOT CHAPTER FOUR

B. C.

D.

E. F.

G. H.

I. ].

K.

L. M.

N. 0. P.

Q R. S.

1949

[the ratio in which they are mixed with other pomegranates; i.e., they never are neutralized]. "How so? "[If] one of them [i.e., a sweet pomegranate that is heave-offering] fell into ten thousand [pomegranates]-all of them [i.e., all of the pomegranates] are forbidden [i.e., they all take on the status of heaveoffering]. "[If a pomegranate] fell from [this] ten thousand into a (E, ed. princ. add: different) ten thousand [pomegranates]--all of them are forbidden." R. Simeon b. Judah says in the name of R. Simeon, "[If] one of them [i.e., a sweet pomegranate that is heave-offering] fell into ten thousand [pomegranates]-all of them are forbidden. "[If, afterwards, a pomegranate] fell from [this] ten thousand into a third [batch], "[and] from this third [batch] into a different batch"[in cases of] doubts [concerning the status of the pomegranates in the final batch], they are [deemed] permitted (reading with E; V reads: forbidden) [for consumption as unconsecrated produce], "since there is a doubt [whether or not] there is [in this case] a mixture of heave-offering and unconsecrated produce." Said R. Judah b. Baba', "I am one of those who is fit to instruct. "For if there come before me shoots of beets (~ylpy tnfyn) [which are heave-offering], I say that they are neutralized [in a mixture of one part heave-offering in a total of] a hundred and one [parts of produce]. "And not only this, but a court should rule that every [kind of produce that is heave-offering] is neutralized [in a mixture of one part heave-offering in a total of] a hundred and one [parts of produce]." [lf] (1) nuts ('gzyn) [that are 'orlah] are split open, (2) pomegranates [that are 'orlah] are cut open, (3) jugs [containing wine that is 'orlah] are opened, (4) cucumbers [that are 'orlah] are cut into, or (.5) loaves [qf pressed figs that are 'orlah] are broken into pieces, thf!Y are neutrali;::ed [when mixed with unconsecrated produce qf this same type to create a total qf] two hundred and one [parts qfproduce] [== M. Or. 3:8]. "[If jugs containing wine that is 'orlah] fell [among jugs of permitted wine] and [afterwards] were opened, "whether [they were opened] intentionally or unintentionally"lo, they are not neutralized"-the words of R. Meir. But R. Judah and R. Simeon say, "Whether [they were opened] intentionally or unintentionally, they are neutralized." R. Yose says, "[If they were opened] unintentionally, they are neutralized. [But if they were opened] intentionally, they are not neutralized." And so would R. Yose say, "(1) A sealed [jug of wine in the status of] heave-offering that became mixed among open [jugs of unconsecrated wine] and [then] was [itself] opened, [or] (2) a sealed [jug containing wine in the status of heave-offering that was mixed] among

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1950

TEXT AND COMMENTARY

sealed [jugs of unconsecrated wine] which [then] were opened, or (3) an open [jug of wine in the status of heave-offering that became mixed] among open [jugs of unconsecrated wine] which [later] were sealed (following Lieberman, TK, I, p. 367)-lo, these are neutralized. T. "For they did not deem [a mixture to remain] for bidden [for consumption as unconsecrated food] except [in a case in which] a sealed [container of heave-offering 1s mixed) among sealed [containers of unconsecrated produce]." T. 5:10a (A-H: b. Zeb. 74a, see M. Kel. 17:5; j-M:. see M. Or. 3:7-8) T. continues to provide rules on the neutralization of heave-offering and other forbidden produce, supplementing M. 4:7. The pericope is in two parts, A-D+ E-I, glossed by J-L, and M, a verbatim citation of M. Or. 3:8, glossed by N-P+Q-R, a dispute which is itself augmented at S-T. I can interpret A only by assuming that sweet pomegranates are a highly desirable and valuable type of produce. 33 Judah states for this reason that if sweet pomegranates in the status of heave-offering are mixed with other, less valuable, pomegranates, the heave-offering is not neutralized. In this way a householder cannot purposely cause the priest to lose his share of such desirable produce. Judah's view is exemplified at C-D. A single sweet pomegranate imparts the status of heave-offering to ten thousand unconsecrated pomegranates with which it is mixed (C). As D states, further, pomegranates from the batch in which this first mixture occurred have the same status as the original sweet pomegranates that were heave-offering. They impart the status of heaveoffering to any quantity of pomegranates with which they are mixed. Simeon b. Judah, E-H, rejects the notion that derivative batches have the same ability to impart the status of heave-offering as the original sweet pomegranates. It is not, after all, known whether there actually is in one of these batches a sweet pomegranate in the status of heaveoffering. Thus he states that at two removes from the original heaveoffering, we rule leniently regarding the status of the mixture. This is the same as in other cases of neutralization in which there are two elements of doubt (cf., T. 5:9F-H?4 Judah b. Baba', J-L, rejects the notion

33 Lieberman, TK, I, p. 366, n. 56, notes that sweet pomegranates are one of the five types of pomegranates mentioned by Pliny, Natural History, book 13, # 113. 34 Lieberman follows Rashi, b. Yeb. 74a, in claiming that the produce in the last batch is deemed to have the status of unconsecrated produce. This is not what H states.

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MISHNAH-TOSEITA TERUMOT CHAPTER FOUR

1951

that, because of their value, certain types of produce are not neutralized. He states that all heave-offering is neutralized when mixed with a hundred parts of unconsecrated produce, in accordance with the position of Eliezer, M. 4:7A. 35 M+N-R cites and glosses M. Or. 3:8. Except for its interest in the rules governing neutralization, it is out of place in the present context. M. Or. 3:7 holds that if any of the five kinds of produce listed at M are 'orlah, they are not neutralized, no matter how large the quantity of permitted produce with which they are mixed. As is the case with sweet pomegranates, this prevents the householder purposely from mixing these particularly valuable types of produce with other food in order to recover them for his own use. M. Or. 3:8, cited here at M, states that if the produce is in some way damaged or loses its value, it is neutralized when mixed with two hundred parts permitted produce, as is the case for all produce in the status of 'orlah (T. 3:8A). N-R glosses, referring to jars containing wine made from grapes in the status of 'orlah. If closed jars are mixed in any proportion among other jars, all of the wine takes on the status of 'orlah and may not be consumed. What if, after such a mixture occurs, the jar containing the wine that is 'orlah is opened? Meir, P, states that since all of the wine already had taken on the status of 'orlah, it remains forbidden. The rule of M3 is not invoked. Judah and Simeon, Q, disagree, holding that even if the householder intentionally opens the jars of wine, the rule of M3 applies, and the 'orlah is neutralized. Yose, R, offers a mediating position. If the householder purposely opens the jars, his actions are of no effect, and all of the wine retains the status of 'orlah. If, however, the jars unintentionally are opened, the 'orlah is neutralized in the usual two hundred parts of permitted produce. S-W carries out an exercise like that of N-R, now for the case of heave-offering. The claim is that, as in the case of 'orlah, if a closed jug of wine in the status of heave-offering is misplaced among other jars containing unconsecrated wine, the heave-offering is not neutralized.

35 Lieberman (TK, I, pp. 366-7) notes that shoots of beets are a type of produce which M. Or. 3:7 states never is neutralized from the status of 'orlah. Lieberman concludes that during Judah b. Baba's time, or in his particularly dwelling place, shoots of beets were no more prized than any other type of produce. On the basis of T. 5: IOL he states that in the same way, over a period of time, people's love (~bybwt) for all other types of produce waned. Lieberman's reasoning is not sound, since it reads into Judah b. Baba's opinion considerations which are extraneous to it.

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Since the jugs are sealed, we deem there to have been no mnang of heave-offering and unconsecrated produce. Y ose states that whether or not the heave-offering is neutralized depends on the ultimate condition of the jars, sealed or opened. If any of the jars finally are left open, there is deemed to be a mixing of heave-offering and the other produce, and the heave-offering is neutralized. Although attributed to y ose, S-T, this appears to agree with the position of Judah and Simeon, Q, who likewise are concerned only with the final condition of the jars. This surely would not be acceptable to Y ose, who, at R, is concerned with the intention of the householder who opened or sealed the vessels. 4:8-11

A. R. Joshua says, "Black figs neutralize white ones, and white ones neutralize black ones. B. " [And in the case of] cakes of pressed figs(1) "large ones neutralize small ones, and small ones neutralize large ones; (2) "round ones neutralize square ones, and square ones neutralize round ones." C. R. Eliezer deems [heave-offering mixed with such different types of its same genus of produce to remain] forbidden [for consumption as common produce]. D. And R. Aqiba says, "When it is known which [type of produce in the status of heave-offering] fell [into the unconsecrated produce, the two different types] do not neutralize one another. E. "But when it is not known which [type of produce in the status of heave-offering] fell [into the unconsecrated produce, the two different types of produce] neutralize one another." M. 4:8 (A-B: M. Or. 3:1) F. "How so? G. "[If there were] fifty [unconsecrated] white figs and fifty [unconsecrated] black figs [together in a basket]H. "[if] a black fig [which was heave-offering] fell into the basket, the black figs are forbidden [for consumption as unconsecrated produceJ, and the white figs are permitted [for consumption as unconsecrated produce]. I. "[If] a white fig [which was heave-offering] fell [into the basket], the white figs are forbidden [for consumption as unconsecrated produce], and the black figs are permitted [for consumption as unconsecrated produce]. J. "But if he does not know what [color fig] fell [into the basket, white and black figs] neutralize one another [and all of the figs in the basket are permitted for consumption as unconsecrated produceJ. K. And in this [i.e., the rules of A-C], R. Eliezer is stringent and R. Joshua is lenient. M. 4:9

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L. But in this [case) R. Eliezer is lenient and R. Joshua is stringent: M. In [a case in which] one stuffed a litra of dried figs [in the status of heave-offering] into the mouth of a jar [filled) with [a hundred litras of) unconsecrated [dried figs], but does not know which [jar]N. R. Eliezer says, "They regard them as if they were loose figs, and the bottom ones neutralize the top ones." 0. R. Joshua says, "[The heave-offering] will not be neutralized unless a hundred jars are there." M. 4:10 P. A se'ah of heave-offering which fell into the mouth of a store-jar, Q and one skimmed it offR. R. Eliezer says, "If in the layer removed were a hundred se' ahs, S. "[the heave-offering) is neutralized in a hundred and one [parts of produce] ." T. But R. Joshua says, "[The heave-offering] is not neutralized." U. A se' ah of heave-offering which fell into the mouth of a store-jarhe should skim it off. V. But if so, why did they say heave-offering is neutralized in a hundred and one [parts of unconsecrated produce]? [That is the case only) if one does not know whether or not it [i.e., the produce that is heave-offering] is mixed up [with the unconsecrated produce] or where [in the unconsecrated produce] it fell. M. 4: ll (y. Ter. 4:8)

At issue again is under what circumstances heave-offering mixed with unconsecrated produce is neutralized. Three Eliezer:Joshua disputes (M. 4:8A-C, M. 4:10 and M. 4:llP-T) illustrate two distinct theories of neutralization. Aqiba's statement, M. 4:8D-E, along with the long explanation following it, M. 4:9F-J, intervene with essentially secondary material. This separates K from its referent atM. 4:8A--c. 36 Joshua's position of M. 4: 11 T is carried forward by the anonymous case at M. 4: 11 U-V. According to Joshua, A, distinguishing features such as color and size of produce are irrelevant in determining whether or not heave-offering is neutralizedY This is in keeping with the law of M. 2:6S, which states in regard to the initial separation of heave-offering that different types of the same genus of produce are homogeneous. 38 Eliezer disagrees. He holds, for example, that white figs in the status of heave-offering are not neutralized by black figs. In such a mixture the heave-offering can be distinguished and may, therefore, be recovered. This being the case

See Primus, pp. 57-58, who offers a more complete formal analysis. Primus, p. 56. 38 Note M. 2:4D, which states specifically that all types of figs and pressed figs are deemed a single species. 36

37

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there is no reason to deem the heave-offering to be neutralized. Joshua and Eliezer thus have very different understandings of the mechanics of neutralization. For Joshua, neutralization may occur whenever heaveoffering and unconsecrated produce are combined. Eliezer, on the other hand, holds that heave-offering is neutralized only if it actually is lost within the unconsecrated produce, such that the status of each individual piece of produce in the mixture is in doubt. Aqiba's position, D-E, is most easily explained on the basis of the example given at G-K. A householder has a basket containing both black and white figs. If it is known what color figs in the status of heave-offering fall into the basket, only figs of that same color are deemed to be part of the mixture. If, on the other hand, it is not known whether black or white figs in the status of heave-offering fell into the basket, each black and white fig in the basket is in a status of doubt whether or not it is heave-offering. All the figs therefore join together to neutralize the heave-offering with which they were mixed. Aqiba's view thus is in essential agreement with Eliezer. 39 This view holds that if heave-offering can be recovered, leaving no doubt as to the status of the produce with which it had been mixed, the heave-offering is not neutralized. At L+M-0, the positions ofJoshua and Eliezer are reversed. 40 Eliezer claims that even though the figs in the status of heave-offering can be recovered from the mouth of the jar, they are neutralized by the other produce in the vessel. Joshua says that since the heave-offering in the mouth of the jar remains distinct from the unconsecrated produce under it, it is not neutralized. Only if the jar containing the heave-offering is mixed among a hundred other jars of figs, such that the heave-offering may be considered lost among the unconsecrated produce in the mouths of the other jars, is that heave-offering neutralized. 41 M. 4: ll P-T provides a further case in which Eliezer and Joshua dispute the status of heave-offering placed on the surface of a batch of unconsecrated produce. Neusner already has shown at some length that the superscription, at Q and Eliezer's position, R, have been contaminated by the words he should skim it qff, at U. 42 Accepting Neusner's So Neusner, Elie;:.er, val. I, p. 50, cited also by Primus, pp. 56-57. K and L are fully aware of and point out this shift. I am unable to account for the reversal of the positions of the two authorities. See Neusner, op. cit., pp. 52-53. 41 The words "but he does not know which [jar]" at M. 4: !OM, are included to allow for Joshua's opinion, 0. They are irrelevant to, and in fact confuse, Eliezer's statement, N. 42 Neusner, op. cit., pp. 5!-52. Neusner also cites the interpretation offered by prior exegetes of M. for the pericope as it stands before us. 39 40

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conclusion and omitting Q and the words cited in Eliezer's name at R, the dispute here simply is a replay of M. 4: 10. Eliezer states that even though the heave-offering may be recovered from the surface of the store-jar, it is deemed mixed with the unconsecrated produce. If sufficient unconsecrated produce is present it is neutralized. Joshua, T, as at 0, disagrees. As long as the heave-offering is not actually mixed with the unconsecrated produce, it is not neutralized. U-V, then, explains and supports Joshua's position. If the heave-offering is not actually lost within the unconsecrated produce, it is recovered and retains the status of a priestly gift. The rules of neutralization apply only in a case in which heave-offering actually is lost in a mixture with unconsecrated produce. U. "When you reason, [you can] state a general rule (kstm/ 'wmr kll; see Lieberman, TK, I, p. 368): V. "that R. Eliezer says, 'If it is known [what type of heave-offering] fell [into unconsecrated produce, the heave-offering] is not neutralized, and if it is not known, it is neutralized;' W. "R. Joshua says, 'Whether or not it is known [what type of heaveoffering] fell [into unconsecrated produce] it is not (V lacks: not, it is supplied by Lieberman on the basis of E and ed. princ.) neutralized'"the words of R. Meir (dbry r m'yr is supplied by Lieberman, following E and ed. princ.). X. R. Judah says, "R. Eliezer says, 'Whether or not it is known [what type of heave-offering] fell [into the unconsecrated produce], it is not neutralized.' Y. "R. Joshua says, 'Whether or not it is known [what type of heaveoffering] fell [into the unconsecrated produce], it is (Lieberman omits not, following E and ed. princ.) neutralized.' Z. "R. Aqiba says, 'If it is known [what type of heave-offering] fell [into the unconsecrated produce], it is not neutralized. "But if it is not known [what type of heave-offering] fell [into the unconsecrated produce], it is neutralized"' [X-Z: see M. 4:8]. T. 5:10b (y. Ter. 4:9)

Meir attributes to Eliezer, V, the position held by Aqiba at M. 4:8D-E. In light of what we have seen, this is quite logical, making explicit the fundamental agreement between the views of the two authorities. At W, Meir cites in Joshua's name the opposite of the opinion that authority holds in M. This is a confused state of affairs, for which I can offer no solution. 43 Judah, x-z, simply repeats the substance of the opinions of each of M. 4:8's authorities.

43

For Lieberman's explanation, see n. 44.

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A "(1) A litra qf dried figs [in the status qf heave-qjfering] which one stziffod. into the mouth qf a jar [filled with dried figs], but does not know into which [jar] he stziffod them [= M. 4: 1OM, with slight variation], "(2) [or which one stuffed] into a bee hive [filled with dried figs], but does not know into which bee hive he stuffed them, "(3) [or which] one pressed on a circle of pressed figs, but does not know on which circle of pressed figs he pressed themB. "R. Eliezer says, 'They regard the [figs on] top [of the jar, bee hive, or pressed figs] as if they are loose [and therefore are mixed with the rest of the produce] . "'If there are there [in the jar, etc.] a hundred and one litras [of produce, the heave-offering] is neutralized, [see M. 4: 1ON]. " 'But if not, it is not neutralized.' C. "R. Joshua says, 'If there are a hundred mouths [of jars, etc., the heave-offering] is neutralized [see M. 4: 10/0]. '"And if not, [produce in] the mouths [of the jars, etc.] is forbidden and [produce in] the bottoms [of the jars, etc.] is permitted [i.e., retains the status of unconsecrated food]' "-the words of R. Meir. D. R. Judah says, "R. Eliezer says, 'If there are there a hundred mouths [of jars, etc., the heave-offering] is neutralized. "'And if not, [produce in] the mouths [of the jars, etc.] is forbidden and [produce in] the bottoms [of the jars, etc.] is permitted.' E. "R. Joshua says, 'Even if there are there three hundred mouths [of jars, etc., the heave-offering] is not neutralized.' F. "If he pressed it [i.e., a litra of dried figs in the status of heaveoffering] upon a circle of pressed figs, but does not know where [on the circle) he pressed it, all agree that it is neutralized." T. 5:11 (b. Bes. 3b, b. Zeb. 73a)

A-C gives Meir's greatly expanded version of M. 4:1 O's dispute between Eliezer and Joshua. The two additional examples, given at A2-3, do not change matters. Although expanded in language, the opinions of Eliezer (B) and Joshua (C) likewise re- main exactly the same as they were in M. Judah, D-H, offers a different version of the dispute. He attributes to Eliezer (D) the opinion, in M., held by Joshua. At E, Judah has Joshua reject the notion that heave-offering in the mouth of one jar can be neutralized by unconsecrated produce in the mouths of other jars. Judah's Joshua, then, should hold the opinion given in M. to Eliezer, viz., that only if there is sufficient produce in the jar containing the heave-offering is the priestly gift neutralized. 44 At F Judah 44 Lieberman, TK, I, pp. 369-370, states that Meir, T. 5:10, reverses the opinions of Eliezer and Joshua for the case of M. 4:8, and that Judah does the same here for M. 4: lO's dispute in order to make the opinions of each authority consistently stringent or lenient.

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states that Eliezer and Joshua agree that if heave-offering is lost in a batch of unconsecrated produce, such that it cannot be recovered, it is neutralized. Judah thus offers credence to my understanding of the basic issue which Joshua and Eliezer debate, specifically, whether or not heave-offering is deemed to be neutralized in cases (such as those of Al-3) in which it is not mixed with or actually lost in the unconsecrated produce into which it falls. A. A si ah if heave-qffering which fill into the mouth if store-jar [= M. 4:11 T]B. they regard it as if it [i.e., the heave-offering] were wheat on top of barley. C. One should skim it qff [= M. 4: 11 T). D. Rabban Simeon b. Gamaliel says, "[If] a bit of heave-offering remained [with the produce in the store-jar], it is neutralized in a hundred and one parts." E. "Heave-offering of the tithe [separated) from doubtfully tithed produce, which fell back into (~zrh) the batch [from which it was separated) imparts the status of heave-offering [to that batch). "But if it fell into a different batch, it does not impose the status of heave-offering [upon the produce)"-the words of R. Eliezer F. But sages say, "Whether it fell back into its same batch or into a different batch, it imposes the status of heave-offering [upon the produce into which it falls)." G. R. Simeon says, "Whether it fell back into its same batch or into a different batch, it does not impose the status of heave-offering [upon the produce with which it is mixed)" T. 5:12 (y. Dem. 4: 1)

The pericope is in two parts, A-D and E-G. A-C cites M. 4: ll T, adding the gloss at B, in order to clarify M. 's point. This is, as I have stated, that when heave-offering can be distinguished from the unconsecrated produce with which it is mixed, it is not neutralized. Simeon b. Gamaliel, D, glosses. If in skimming the heave-offering from the unconsecrated produce the householder leaves behind some heaveoffering, this small quantity is deemed neutralized in the other produce. E-G is autonomous of M. Heave-offering of the tithe separated from demai is in a status of doubt as to whether or not it is a sanctified priestly gift. Eliezer, E, says that such heave-offering of the tithe is deemed true heave-offering only in conjunction with the produce from which it actually was separated. 45 This is so because it is this offering

45

See y. Dem. 4:1 (s.v., 'l r

~gy

'mryn), cited by Lieberman, TK, I, p. 370.

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which in fact freed that produce for consumption. Thus if it is mixed with that produce in a ratio of more than one part of heave-offering to a hundred parts of unconsecrated produce, it imposes the status of heave-offering upon that produce. 46 If this heave-offering of the tithe falls into other produce, we assume that it is not a true priestly gift. It does not impose the status of heave-offering on that other produce. Sages, F, state that heave-offering of the tithe separated from demai is treated in all respects like a true priestly gift and, therefore, imposes the status of heave-offering on any produce with which it is mixed in sufficient quantity. Simeon takes the opposite view. Since the heaveoffering of the tithe might not be a sanctified priestly gift, he holds that it is in no event treated as one. This view is closest to that of T. 5:9F-H, which holds that in cases of doubt concerning mixtures of heave-offering and unconsecrated produce, the mixtures are deemed permitted for consumption as unconsecrated produceY A. "Flour (hqm&yn) and fine flour (hswltwt) neutralize [heave-offering] m conjunction with one another"-the words of R. Nehemiah. B. But sages say, "They do not neutralize [heave-offering in conjunction with one another]." T. 6:6 C. (Lieberman supplies C-E from ed. princ.) "A log of water which fell into ninety-nine [logs] of wine, and afterwards a log of wine [which was heave-offering] fell [into the mixture]D. "[the water and the wine] neutralize [the wine which is heave-offering] in conjunction with one another"-the words of R. Nehemiah. E. But sages say, "They do not neutralize [the heave-offering] in conjunction with one another." T. 6:7

The two formally balanced disputes supplement M. 4:8-11 's rules for the neutralization of different kinds of a single genus of produce. 48 Fine flour, A-B, can be distinguished from other flour with which it is mixed. Nehemiah takes the position of Joshua, M. 4:8A-B, that the distin-

46 In the case cited here, all of the heave-offering of the tithe separated from the batch of produce falls into that same produce. Since heave-offering of the tithe is a full tenth of the produce, it is not neutralized but, rather, imparts the status of heaveoffering. to the produce with which it is mixed. 47 Lieberman, TK, I, p. 371, cites M. Or. 2:1, which claims that heave-offering of the tithe separated from demai is neutralized under the same conditions as is other heave-offering. Only sages, at P, would agree. 48 This pericope is both formally and substantively autonomous of its redactional context in T. I am unable to account for its positioning.

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guishing features are irrelevant. The two types of flour work together to neutralize heave-offering. Sages have the position of Eliezer, M. 4:8C, that heave-offering is not neutralized by a different type of its same genus of produce. The problem at C-E is slightly different. This is whether wine which is heave-offering is neutralized by water. Nehemiah states that the water indeed increases the volume of the wine so that the heave-offering is neutralized. Sages, on the other hand, states that the water, which itself is not produce, does not have the power to neutralize heave-offering. 4:12 A (1) Two bins [the combined content of which is a hundred slahs of unconsecrated produce), or (2) two store-jars [the combined content of which is a hundred sl ahs of unconsecrated produce] B. into one of which fell a sl ah of heave-offering, C. and it is not known into which of them it fellD. [the bins or store-jars) neutralize [the heave- offering] in conjunction with one another (m'lwt zw 't zw) [i.e., we deem the heave-offering to have fallen into a single batch of a hundred sl ahs of produce]. E. R. Simeon says, "Even if they [i.e., the two baskets or store-jars] are in two [different) cities-they neutralize [the heave-offering] in conjunction with one another." M. 4:12

M. 4: 12 advances the theme of M. 4:8-ll, offering a case of doubt concerning a mixture of heave-offering and unconsecrated produce. A-D is glossed by Simeon, E. A se' ah of heave-offering falls into one of two bins (Al) or store-jars (A2), but it is not known which. Individually the containers do not hold enough unconsecrated produce to neutralize the heave-offering; together they do. Yet, since there are a hundred se' ahs of produce which, by one se' ah of heave-offering, have been rendered suspect as regards their status, D rules that the heave-offering is neutralized. This position is closely parallel to that of Eliezer, M. 4:8N, which holds that we deem heave-offering to be neutralized by produce with which it is not actually mixed. Simeon, E, adds little. Even if the containers are in two different cities, for the reason stated above, the rule of D applies. 4:13

A Said R. Yose, "A case (m'sh) came before R. Aqiba concerning fifty bundles of vegetables, among which had fallen a similar bundle, half of which was heave-offering. B. "And I said before him, '[The heave-offering] is neutralized.'

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C. "Not that heave-offering is neutralized in [a mixture of one part of heave-offering in a total of] fifty one [parts of produce, but,] rather, because there were there a hundred and two half [si ahs, only one of which was heave-offering]."

M. 4:13 (y. Ter. 4:13)

The case is exactly the same as that atM. 4:12. Among fifty-one bundles of unconsecrated vegetables is a bunch composed half of heaveoffering, half of unconsecrated produce. It is not known which bundle contains the heave-offering. Since the status of all of the unconsecrated produce is in doubt, y ose rules that it all joins together to neutralize the heave-offering. The point is made clear at C. Of the hundred and two half se' ahs of produce in the mixture, only one half se' ah, less than one percent of the mixture, has the status of heave-offering. 49

49 Maimonides, Bert and TYY state that the issue here is whether or not produce which takes on the status of heave-offering by being mixed with that offering itself has the power to impart the status of heave-offering to produce with which it is mixed. According to this interpretation Yose's point is that although the half se' ah of heaveoffering will have imparted its status to the bundle with which it initially is mixed, all of the produce in this bundle does not impart the status of heave-offering to unconsecrated produce with which it subsequently is mixed. While this exegesis can be supported on the basis of C, it does not take into account the redactional juxtaposition of M. 4:12 and 4:13.

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The chapter carries forward M. 4:7~13's discussion of the neutralization of heave-offering. It is in two parts. M. 5:1 ~4 present cases in which either the heave-offering or the unconsecrated produce with which it is mixed is unclean. M. 5:5~8+9 are on whether or not produce taken to replace heave-offering which is neutralized is true heaveoffering. Both parts of the chapter flow from a single set of disputing opinions, Eliezer's, M. 5:2C, and that of sages, expressed first at M. 5:2D. Eliezer's view is that if heave-offering is neutralized in unconsecrated produce, the produce the householder takes to replace it is the same produce that originally fell into the batch. This produce therefore is true heave-offering and, further, has the same status of cleanness as the heave-offering that was lost. The batch from which it was taken, likewise, is composed solely of unconsecrated produce, just as it was before the mixture occurred (M. 5:6~7). Sages disagree. They hold that the replacement heave-offering contains only that proportion of true heave-offering that is contained in the mixture from which it is separated. According to this view, if the original heave-offering, or the unconsecrated produce with which it was mixed, is unclean, the replacement heave-offering is a mixture of clean and unclean produce. While the priest may consume this produce, he must do so in such a way as to prevent the unclean produce in the batch from imparting uncleanness either to the clean heave-offering or to himself. It also follows from this view that the batch in which the heave-offering was neutralized still contains some heave-offering. This being the case, sages cannot agree to the anonymous rule of M. 5:7. Only M. 5:1 and M. 5:9 stand outside the framework of the dispute between Eliezer and sages. M. 5:1 introduces the problem of mixtures in which either the heave-offering or the unconsecrated produce is unclean, the topic of M. 5:2~4. Clean heave-offering is mixed with unclean unconsecrated produce and imparts its own status to that produce. M. 5: li~J rules that since the original heave-offering is clean, the batch must be given to a priest, who cooks and eats the produce in such a way that the unclean unconsecrated produce does not impart uncleanness either to the clean heave-offering or to himself If, however, the heave-offering in the mixture is unclean (M. 5: lA~C), the

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batch is left to rot. The priest could not eat the original heave-offering and therefore may not benefit from the mixture. M. 5:9 is autonomous of the specific issues of the preceding pericopae, concluding M.'s discussion of the neutralization of heave-offering. In each of its three cases a mixture of heave-offering and unconsecrated produce changes in quantity. Unless it is certain that the ratio of heave-offering to unconsecrated produce has changed, the mixture retains its same status of consecration. As usual T. restates and expands M.'s rules, adding significant statements of its own only at T. 5: 15 (on the neutralization of 'orlah and other forbidden produce), and at T. 6:lla (on the neutralization of heave-offering of one kind in a different kind of unconsecrated produce). As in Chapter Four, important attributions here are to Yavneans, most notably, to Eliezer. The Houses are cited pseudepigraphically, 1 M. 5:4. Simeon appears at M. 5:8. In T. we have Yose (T. 5:13), Judah (T. 5: 14), Eleazar b. 'Arakh and Simeon (T. 5: 15). 5:1

I. A A siah of unclean heave-offering which fell into less than a hundred [siahs] of unconsecrated produce, B. or [which fell] into first tithe, or second tithe or [produce] dedicated [to the Temple], C. whether these things are clean or uncle anD. let [all of the produce in the mixture] rot. II. E. (Eight MSS. add: But) if that si ah [of heave-offering that fell into the other produce] was clean-let [all of the produce in the mixture] be sold to priests, at the [low] value of heave-offering, F. less the value of that same se' ah [of heave-offering which fell into the unconsecrated produce]. G. And if it fell into first tithe-let him designate [the mixture] heaveoffering of the tithe. H. And if it fell into second tithe or [produce] dedicated [to the Temple]- lo, these may be redeemed. III. I. (Five MSS. lack: And) if the unconsecrated produce [into which the heave-offering fell] was uncleanlet [all of the produce in the mixture] be eaten2 in small bits, or roasted, or kneaded with fruit juice, or divided into [little] lumps [of dough],

1 I argue this m Neusner, Judaism, Appendix I, part iv, as well as below, pp. 1965-1967. 2 0 1, B, C and 0 2 read "[The heave-offering] is neutralized and eaten .... " Since heave-offering which is mixed with less than a hundred times its quantity in uncon-

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Such there will not be in a single place an egg's bulk [of produce]. M. 5:1 (A+D-F: b. Ned. 59a)

In these three cases heave-offering imparts its own status to produce with which it is mixed. The problem, A-D and I-J, is that either the heave-offering or the produce into which it falls is unclean. May the resultant mixture be eaten by a priest, as is clean heave-offering, or must it be left to rot, as is unclean heave-offering? The point, as we shall see, is that we rule according to the status of the heave-offering which originally fell into the other produce. If it was clean, the mixture is consumed by a priest. If it was unclean, the mixture is left to rot. Before turning to the specifics of the cases before us, we may note that the pericope is formally unitary. Each of its cases (A-D, E-H and I-J) depends on A for sense. Only B and G-H, which introduce the problem of mixtures of heave-offering and first tithe, second tithe, or produce dedicated to the Temple, are secondary to the concern of the pencope. Unclean heave-offering, A, imparts the status of heave-offering to unconsecrated produce or, B, to other agricultural offerings or sanctified produce. Since the original heave-offering is unclean and may not be eaten by a priest, all of the produce in the mixture is deemed to have this same status and must be left to rot (D). At E-F clean heave-offering falls into clean unconsecrated produce. The mixture, composed entirely of clean produce in the status of heave-offering, is sold to a priest at the low market value of that offering. 3 Since the se'ah of heave-offering that originally fell into the unconsecrated produce already is the property of a priest, however, that quantity of produce is given without remuneration to that individual (F). G-H refers to the circumstances adduced at B. If heave-offering is mixed with first tithe, the householder gives all of the produce to a Levite, who then designates it heave-offering of the tithe for other first tithe which he owns. In this way the Levite receives the tithe which rightfully is his, yet the produce ultimately is eaten by a priest, as it must be. If heave-offering is mixed with second tithe or with produce dedicated to the Temple, H, the householder redeems with coins the consecrated produce in the mixture. The coins take on the sanctified status previously held by the

secrated produce is not neutralized (M. 4:7), this reading clearly is in error. See on this point Sacks-Hutner, p. 140, n. 6, who cites MS. 3 See above, p. 350, n. 19.

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second tithe or dedicated produce. The mixture now may be sold to a priest, as at E-F. 4 The householder, of course, must dispose of the consecrated coins as appropriate, using them to purchase produce in Jerusalem, in the case of second tithe, or turning them over to the Temple treasury, in the case of produce dedicated to the Temple. At 1-J, finally, clean heave-offering imparts its own status to unclean unconsecrated produce. Since here the original heave-offering is clean and should be consumed by a priest, the mixture may not simply be left to rot, as at A-D. The problem is to prepare the produce for consumption in such a way that the unclean produce in the mixture does not convey uncleanness to the clean heave-offering or to the priest who eats it. For this reason the mixture is prepared dry, or with fruit juice, so that the heave-offering is not made susceptible to uncleanness. It is eaten by the priest in quantities of less than an egg's bulk, which do not convey uncleanness. 5:2-4

I. A. A s/ ah qf unclean heave-offering that fell into 5 a hundred [se, ahs] of clean [unconsecrated] produce [and so is neutralized]B. R. Eliezer says, "Let it be lifted out (trwm) and burned. 6 C. "For I say, 'The se,ah which fell [into the unconsecrated produce] is the [same] s/ah that is raised up."' D. But sages say, "[The heave-offering] is raised up ({[h) [out of the mixture] and is eaten dry, roasted, kneaded with fruit juice, or divided into lumps [of dough], E. "so that there is not in a single place as much as an egg's bulk [of produce]." M. 5:2 (b. Bek. 22a-b; see Sifre Bammidbar #121, Horovitz, p. 149, ll. 3-6jl

4 These same rules should apply to a case in which unclean heave-offering is mixed with first tithe, second tithe or produce dedicated to the Temple, A-B. In those cases the priest simply may not eat the heave-offering which he finally receives. 5 The printed edition reads ltwk m>h. Eleven MSS have lm,h. There is, of course, no difference in meaning. 6 B. Bek. 22b reads: let rot. On the problem of the reading here, see Sacks-Hutner, p. 141, n. 10. The distinction made between heave-offering which is left to rot (e.g., M. 5: lA-D) and that which is burned (as in the present case) is based on a distinction between produce which may be unclean, and that which surely is unclean. Since the former might be clean, it may not be destroyed. Yet since it may be unclean, it likewise may not be eaten by a priest. It therefore is left to rot. Heave-offering which certainly is unclean, on the other hand, is disposed of through burning, as M. Tern. 7:3 states. 7 Sifre Bammidbar #121 proves from Num. 18:29 that heave-offering imposes its own status upon unconsecrated produce with which it is mixed.

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II. F. A se'ah of clean heave-offering that fell into a hundred [se'ahs] of unclean unconsecrated produceG. let it be raised up and eaten dry, roasted, kneaded with fruit juice, or divided into lumps [of dough], H. such that there is not in a single place as much as an egg's bulk [of produce]. M. 5:3 III. I. A se'ah of unclean heave-offering that fell into a hundred [se'ahs] of clean heave-offering]. the House of Shammai declare [the mixture] forbidden [for consumption by a priest]. K. But the House of Hillel permit. L. Said the House of Hillel to the House of Shammai, "Since clean [heave-offering] is forbidden to non-priests, and unclean [heaveoffering] is forbidden to priests, if clean [heave-offering] can be neutralized, so unclean [heave-offering] can be neutralized." M. Said to them the House of Shammai, "No, if unconsecrated produce, to which leniency applies and which is permitted to nonpriests, neutralizes clean [heave-offering], should heave-offering, to which stringency applies and which is forbidden to non-priests, [have that same power and] neutralize unclean [heave-offering]?" N. After they had agreed: 0. R. Eliezer says, "Let it be raised up and burned." P. But sages say, "It has been lost through its scantiness."

M. 5:4 M.'s concern, as at M. 5:1, is the adjudication of problems of cleanness in mixtures of heave-offering and unconsecrated produce. M. 5:2-4's three cases have heave-offering neutralized in other produce. At issue, thus, is the status of the produce taken from the mixture to

replace the lost heave-offering (see p. 151 and M. Or. 2: 1). A-E's case is like that of M. 5: lA-D, with unclean heave-offering mixed with clean unconsecrated produce. F-H's case parallels that of M. 5: ll-J, clean heave-offering mixed with unclean unconsecrated produce. The final case, 1-K+L-M+N-P, has no equivalent atM. 5:1. At A-E unclean heave-offering is mixed with a hundred times its quantity in clean unconsecrated produce. Eliezer (B) states that the householder takes a se' ah of produce from the mixture and deems it to be the same as that which fell in. Since it is unclean, it is burned. Sages, on the other hand, hold that since it is neutralized, the heaveoffering is diffused in the clean produce. Produce taken to replace the lost priestly gift therefore is a mixture of clean and unclean produce. The priest eats it in such a way as to prevent the unclean produce in the mixture from imparting uncleanness either to the clean produce or to himself, just as at M. 5: ll-J.

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M. 5:3 carries forward sages' view. Clean heave-offering is neutralized in unclean unconsecrated produce. The produce which subsequently is separated from the mixture for a priest is treated as a mixture of clean and unclean produce, exactly as at D-E. Eliezer, who holds that the householder deems the sl ah of produce which is separated from the mixture to be the same as that which fell in (B), can hardly agree. In his view the produce taken from the mixture is clean, and may be eaten as such. Unclean heave-offering, as we know, may not be eaten by a priest. M. 5:4 asks whether such heave-offering becomes permitted for consumption when it is mixed with a great quantity of clean heave-offering, just as heave-offering mixed with unconsecrated produce is neutralized and may be eaten by a non-priest. The House of Shammai state that it does not and so prohibit l's mixture from consumption by a priest. The Hillelites, on the other hand, state that the small quantity of unclean heave-offering may be disregarded, just as we ignore a small quantity of heave-offering that is mixed with unconsecrated produce. They therefore permit the mixture to the priest. The debate that follows at L-M is problematic. Instead of having the Houses argue the issue in terms such as I have explained it, and which the language of j-K (forbids/permits) requires, it has the Houses debate whether unclean heave-offering is neutralized in clean heave-offering. The debate therefore refers to a dispute such as the following: A. A seah of unclean heave-offering which fell into a hundred [se'ahs] of clean heave-offeringB. The House of Shammai say, "(The unclean heave-offering] IS neutralized." C. But the House of Hillel say, "It is not neutralized."

This, however, is nonsensical, for it is meaningless to speak of heaveoffering's being neutralized in heave-offering. None of the produce in question loses the status of a priestly gift. It thus seems likely that the debate, which directly reflects the language and concerns of M. 5:2-3, was formulated at the time at which the dispute was set in its present redactional framework. It does not go back to the historical Houses. Still, we can make sense of each of the House' positions. The Hillelites argue that both clean heave-offering and unclean heave-offering are forbidden to some individuals. Since the two categories of heave-offering are equivalent in this respect, they likewise are equivalent as regards neutralization. The Shammaites reply that while unconsecrated pro-

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duce does in fact neutralize heave-offering, heave-offering, to which greater stringency applies, cannot serve to neutralize other heave-offering. While the Shammaites are given the last word, their argument, which remains within the conceptual framework established by the Hillelites, is hardly more logical than the Hillelite one. N is joining language, linking the opinions of Eliezer and sages to the foregoing. While later rabbinic tradition will assume that it is the House of Shammai which conceded to the position of the Hillelites, this is not stated or assumed here. What is important for our purposes is that the positions of Eliezer and sages revert to the formulation of the Houses' dispute found at J-K. These authorities do not use the terminology of the debate at L-M. Eliezer is consistent with his position at M. 5:2B-C. The householder (or priest) may take a se'ah of heave-offering from the mixture and claim that it is the same se' ah that originally fell in. Like all heave-offering which undoubtedly has a status of uncleanness, this se'ah is burned (M. Tern. 7:5). The rest of the heave-offering is clean and may be eaten by a priest. This position is essentially the same as that of the House of Shammai who, at J, state that we may not disregard the unclean heave-offering in the mixture. Eliezer simply adds that the unclean priestly gift can be removed from the clean heave-offering. Like Eliezer, sages do not make reference to the concept of neutralization. They simply state that the unclean heaveoffering is in the clean, that is, comprises so insignificant a proportion of the mixture that it is disregarded. This is the position of the Hillelites, K. It seems likely, then, that the Houses' dispute at I-K is pseudepigraphic, modeled on the Eliezer/sages tradition at 0-P. T. will offer further evidence for this view. A. Just as heave-offering is neutralized in unconsecrated produce [in a mixture of one part of heave-offering in a total of] a hundred and one [parts of produce] , B. whether or not [the heave-offering] is mixed up [in the unconsecrated produce], C. so unclean [heave-offering] should be neutralized in clean [heaveoffering] in [a mixture of] a hundred and one [parts] [see M.

5:41+K-L], D. whether or not [the unclean heave-offering] is mixed up [in the clean heave-offering]. E. R. Yose says, "If it is mixed up-it is neutralized. F. "But if it is not mixed up-it is not neutralized." G. [If] it fell into unclean unconsecrated produce, all agree that it is neutralized. T. 5:13

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The anonymous rule at A +C restates the Hillelite position in the debate, M. 5:4L-M, that unclean heave-offering is neutralized when mixed with a large quantity of clean heave-offering. B-D is interpolated, allowing for Yose's position, E-F. This is that the unclean heave-offering is neutralized only in a case in which it cannot be recovered from the clean heave-offering with which it is mixed. This puts Yose in essential agreement with Eliezer, M. 5:4/0, who states that the unclean heaveoffering should be removed from the clean. Notably, the attestation here to Y ose of an issue debated by the Houses sheds further doubt on the authenticity of the attribution of those materials to the Houses. G states that all parties agree that unclean heave-offering is neutralized in unclean unconsecrated produce. The rules of M. 5:1-3 have not led us to expect otherwise. A. An [unclean; see Lieberman, TK, I, p. 373, andy. Ter. 4:13) chatemelon in the status of heave-offering that was mixed with a hundred unconsecrated chate-melons, B. and so an [unclean) piece of bread (prwsh; ed. princ. reads: l~m hpnym) in the status of heave-offering which was mixed with a hundred pieces of unconsecrated breadC. lo, these are neutralized [see M. 5:2). D. R. Judah says, "They are not neutralized." E. (Lieberman supplies from E and ed. princ.:) If the slices touched each other, they have made each other unclean. F. But if the food [i.e., the heave-offering] was invalid, having been made invalid through contact with one who had immersed on the selfsame day, all agree that it is neutralized. T. 5:14 (y. Ter. 4:13)

A-C repeats the rule of M. 5:2D. 8 Unclean heave-offering is neutralized in clean unconsecrated produce. The important position here is that of Judah, D, who rejects this rule and states that the unclean heaveoffering is not neutralized. It is possible that this view is the same as that of Eliezer, M. 5:2B, who holds that we simply remove the unclean heave-offering from the mixture. This however is not made explicit. 9

8 I interpolate "unclean" at A and B, as is required by the sense of E and F. It is of course possible that the pericope is not unitary, and that A-D deals with the neutralization of clean heave-offering in clean unconsecrated produce. If this is the case, however, Judah is left to reject the basic premise that heave-offering is neutralized, an unlikely situation. The glosses at E-F, further, would be left with no antecedent rule. Y. Ter. 4:13, in fact, cites A+C, inclusive of the word "unclean." 9 Lieberman, TK, I, p. 374, follows Jonah b. Judah Gershon and states I) that D

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E likewise is enigmatic. If produce is prepared with water, as bread is, it is susceptible to uncleanness and is made unclean by contact with the unclean heave-offering. This however does not seem to shed light on Judah's position. Nor does F help matters. Heave-offering is rendered "invalid" through contact with a person who was unclean and who immersed on the day of contact. While such heave-offering may not be consumed, it does not impart a status of uncleanness or invalidity to other produce with which it comes into contact (M. Par. 4: 11 ). Concerning the imparting of uncleanness to other produce, then, invalid heave-offering is just like clean heave-offering. It follows that Judah will allow its neutralization, just as he deems clean heave-offering to be neutralized. I do not, however, see that this elucidates Judah's position at D. 10 A. Untithed produce (!bl) which is mixed with unconsecrated [i.e., tithed] produce---lo, this [i.e., the untithed produce] renders forbidden [the produce with which it is mixed] ('wsr) in any amount [i.e., no matter how small a quantity of untithed produce is mixed with tithed produce, the tithed produce may not be eaten] B. If he [i.e., the householder] has in a different place produce which needs to be tithed (pmsh; MB), he takes [this produce as tithes for the untithed produce mixed with unconsecrated produce] in accordance with a calculation [of the percentage of the mixture which is untithed]. C. But if not [i.e., if the householder has no produce which needs to be tithed]D. R. Eliezer and R. Eleazar b. 'Arak say, "He designates the (Lieberman, TK, I, p. 374, adds: heave-offering and) heave-offering of the tithe which is in it [i.e., in the untithed produce],

should read Yose instead of Judah, and 2) that the case is one in which the unclean heave-offering has not been mixed with the clean produce, as at T. 5:13E-F. There is, however, no MS. support for the emendation. There is litde likelihood that this pericope knows the issue of T. 5: 13. 10 Lieberman, lac. cit., states that the pericope is a continuation ofT. 5:13, and that the case is one in which unclean heave-offering has been mixed with clean heaveoffering. Judah holds that since the produce is susceptible to uncleanness, as E makes clear, the priest will be careful not to allow the unclean heave-offering to become lost in the clean, and so to impart uncleanness to it. For this reason Judah (or Yose; see n. 9) holds that the unclean heave-offering simply can be recovered from the mixture. Since invalid heave-offering, F, does not impart a status of uncleanness to produce which it touches, the priest is not careful with such a mixture, and so the heaveoffering is neutralized. While Lieberman's reference to the question of whether or not the householder (or priest) is careful with the mixture is given some support at y. Ter. 4:13, it seems unlikely from the language before us that this issue is known to T.

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E. "and it [i.e., these offerings] are neutralized in a hundred and one parts [of produce]." F. And so [is the case as regards] first tithe. G. First tithe from which heave-offering of the tithe has not been separated (m'sr tbl) which is mixed with unconsecrated produce--lo, this [i.e., the first tithe] renders forbidden [the produce with which it is mixed] in any amount. H. If he [i.e., the Levite] has in another place first tithe from which heave-offering of the tithe has not been removed-he takes [this produce as heave-offering of the tithe for the first tithe in the mixture] in accordance with a calculation [of the quantity of first tithe in the mixture]. I. But if not [i.e., if he has no first tithe from which heave-offering of the tithe has not been separated]]. [R. Eliezer and] R. Eleazar b. 'Arak say, "He designates the heaveoffering of the tithe which is in it [i.e., in the first tithe mixed with the unconsecrated produce,] and it is neutralized in a hundred and one parts [of produce]." K. (GRA, MB, HY omit:) But if it was untithed produce and first tithe or second tithe [which were mixed together]-lo, this [mixture] is forbidden. L. For they did not deem produce with which consecrated produce may have been mixed (spq mdwm') permitted, except in the case of produce that can be rendered permitted [through some action of the householder]. M. R. Simeon says, "Any produce (dbr) which can become permitted [for consumption as unconsecrated food], N. "such as untithed produce, second tithe, produce dedicated [to the Temple] or new produce [i.e., produce for which the 'omer is not yet separated (Rashi, b. Ned. 57b])O. "(omit 'and' with E and ed. princ.) sages did not establish [for such produce] a measure [in which it is neutralized]. P. "(Lieberman supplies from the margin of V:) And any type of produce that cannot become permitted, Q "such as 'orlah and mixed seeds in a vineyardR. "sages established [for such produce] a measure [in which it is neutralized]." S. They said to him, "But is it not the case that [produce of] the seventh year cannot become permitted? Yet sages did not establish [for such produce] a measure [in which it would be neutralized if mixed with permitted produce]." T. [Simeon] said to them, "[Produce grown in] the seventh year does not render forbidden [produce with which it is mixed] in any quantity, except as regards the obligation to remove from one's possession all produce grown in the seventh year (bfwr). But as regards eating, [produce of the seventh year] does not render

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other produce forbidden except if it imparts flavor [to that other produce. If it does not, it is deemed neutralized]." T. 5:15 (A: see M. Hal. 3:10; G: y. Dem. 7:8, y. Hal. 3:1; K: T. Ter. 6:17; M-S: y. Sheb. 6:3, y. Ned. 6:8, b. Ned. 57b; S: see M. Sheb. 7:7) T. gives rules for the neutralization of untithed produce and first tithe that are mixed with tithed, unconsecrated produce. Two formally and substantively parallel units, A-E and G-J, are linked by F. The expected third rule occurs at K -L, and itself introduces the general principle stated by Simeon, N-O+P-R, followed by the debate at S-T. Untithed produce in any amount imposes the status of forbidden food on tithed produce with which it is mixed (A). If the householder has other produce that needs to be tithed, however, he simply designates that produce to be the tithe required of the untithed produce in the mixture. The untithed produce is rendered permitted for consumption, and, with it, the rest of the produce in the mixture (B). What if the householder has no produce which he can designate to be required tithes (C)? In this case he simply designates the needed offerings to be within the mixture itself These offerings now are mixed with a quantity of unconsecrated produce sufficient to neutralize them (D-E). As before the mixture becomes permitted for consumption. According to G-J, the same is the case if first tithe from which heave-offering of the tithe has not been removed is mixed with unconsecrated produce. The Levite renders the first tithe permitted for consumption either by designating the required heave-offering of the tithe in a different batch of first tithe, or in the mixture itself In either case, the first tithe, along with the unconsecrated produce with which it is mixed, may then be eaten by the Levite. K appears again at T. 6:17, and is comprehensible only in that context. For this reason GRA and HD, followed by HY, delete the lemma from the present pericope. Without questioning the primacy of K to T. 5:15, I reserve its interpretation for T. 6:17. Simeon, M-R, offers the general principle covering the rules of A-E and G-J. His statement repeats the sense of L. The point is that neutralization does not apply to produce which can be rendered permitted for consumption by some simple action of the householder, e.g., the removal of tithes, in the case of untithed produce, or deconsecration, in the case of second tithe. The reason, of course, is that the householder himself can rectifY the situation, without incurring any loss or causing

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a loss of agricultural offerings or holy things. Neutralization applies, Simeon states, only in the case of produce which the householder cannot through other means render permitted for consumption. Sages, S, offer an apparent contradiction to Simeon's principle. Produce of the seventh year, they state, is not subject to the rules of neutralization, yet cannot be rendered permitted for consumption through some action of the householder. Simeon replies that produce of the seventh year is, in fact, subject to the rules of neutralization. If it is mixed with unconsecrated produce in such a small quantity that it cannot be tasted, the produce of the seventh year does not impose a forbidden status on that other produce. A. A st! ah qf unclean heave-qfforing that fill into a hundred se' ahs qf clean heaveqfferingB. The House qf Shammai declare [the mixture} forbidden [for consumption by a priest]. C. But the House qf Hillel permit. D. Said the House qf Hillel to the House qf Shammai, "Clean [heave-qffering] is forbidden to non-priests (zrym), and unclean [heave-qffering] is forbidden to priests. Just as clean [heave-qfforing] is neutralized, so unclean [heave-qfforing] can be neutralized" [= M. 5:4I~LJ. E. Said to them the House of Shammai, "No. If you say [this] as regards clean [heave-offering], which is neutralized in unconsecrated produce [and then is] eaten by (Lieberman corrects to read:) priests [i.e., the produce taken from the mixture to replace the lost heave-offering is eaten by priests], will you say [that this is the case] for unclean [heaveoffering], which is not neutralized in unconsecrated produce [and then] eaten by priests [= the position of Eliezer, M. 5:2A+B]?" F. Said to them the House of Hillel, "Lo, unclean [heave-offering] that fell into unconsecrated produce will prove [the case], for it is not neutralized in unconsecrated produce [and then] eaten by non-priests, but, lo [even so], it is neutralized." G. Said to them the House of Shammai, "No. If you say this] as regards unconsecrated produce to which applies great leniency, will you say [it] for heave-offering, to which [only] slight leniency applies [in that it may be eaten by priests]?" H. Said to them the House of Hillel, "But in what case was Torah stringent, in [the case of] non-priests who eat heave-offering ('wk[y tnmnh lzrym) or [in the case of] priests who eat heave-offering? In [the case of] non-priests who eat heave-offering, [whether it is] a clean [nonpriest] who ate clean [heave-offering], or a clean [non-priest] who ate unclean [heave-offering], or an unclean [non-priest] who ate unclean [heave-offering"they all are liable to death. I. "But in [the case of] priests who eat heave-offering-

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"[If it is] a clean priest who ate clean [heave-offering]"this is as he is commanded. "[If it is] a clean [priest] who ate unclean [heave-offering]"[he has transgressed] a positive commandment. "And [if it is] an unclean [priest] who ate clean [heave-offering], or an unclean [priest] who ate unclean [heave-offering]"[he has transgressed] a negative commandment. "And is it not an argument a minori ad majus? If in a case in which Torah was stringent, that of non-priests who eat heave-offering, lo, [the heave-offering] is neutralized in unconsecrated produce [and then] eaten by non-priests, in a case in which Torah is lenient, that of priests who eat heave-offering, is it not logical that [the heave-offering] is neutralized in (correct to read:) heave-offering [and then] is eaten by priests?" After they had agreed: R. Eliezer scrys, "Let it be raised up and burned. " But sages scry, "It has been lost through its scantiness" [= M. 5:4N-PJ. T. 6:4

T. cites all of M. 5:4, providing, at E-J, an expanded version of the Houses' debate, M. 5:4L-M. The Hillelites now are left in the winning position. The fact that the Shammaites, E, argue on the basis of a rule attributed to Eliezer, M. 5:2B, is further evidence of the pseudepigraphic nature of the debate. 5:5-6 A. A se' ah of heave-offering that fell into a hundred [se' ahs of unconsecrated produce, and was thereby neutralized], B. and one lifted it out [i.e., took a new se'ah of heave-offering for the priest], and [the replacement heave-offering] fell into a different batch [of unconsecrated produce]C. R. Eliezer says, "[That which falls into the second batch] imparts the status of heave-offering [to the produce with which it is mixed] as does true heave-offering (ktrwmt wd'y)." D. But sages say, "It does not impart the status of heave-offering except in accordance with a calculation [of the percentage of the produce which is true heave-offering]." M. 5:5 E. A se' ah of heave-offering which fell into less than a hundred [se' ahs of unconsecrated produce], and [that pro duce thereby] took on the status of heave-offering (wndm'w), F. and [produce] fell from the mixture (hmdwm') into a different batchG. R. Eliezer says, "[That portion of the mixture that falls into the second batch] imparts the status of heave-offering [to the produce with which it is mixed] as does true heave-offering."

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H. But sages say, "A mixture of heave-offering and unconsecrated produce (hmdumc) does not impart the status of heave-offering [to produce with which it is mixed] except in accordance with a calculation [of the quantity of true heave-offering contained in the mixture]. I. "And that which has been leavened [with heave-offering (Albeck)] does not impart the status of heave-offering to that which it leavens except in accordance with a calculation [of the quantity of true heaveoffering in the mixture] . J. "And [water from an immersion pool which was made unfit by being mixed with] drawn water does not impart a status of invalidity to [other] immersion pools except in accordance with a calculation [of the percentage of drawn water it contains]." M. 5:6 (E-H: b. Shah. 142a, b. Tern. 12a; H-J: M. Tern. 1:4) M. 5:5-6 carries forward the theme of the foregoing through two disputes between Eliezer and sages, A-C+D and E-G+H. These differ only in their superscriptions, A and E. M. 5:5 has a se'ah of heaveoffering neutralized in unconsecrated produce. The se' ah of produce taken to replace the heave-offering then falls into other unconsecrated produce. Eliezer is consistent with his view of M. 5:2C, that the se'ah of heave-offering which was lifted out of the mixture is the same as that which originally fell in. It therefore has the effect of true heaveoffering in imparting its own status to the produce with which it subsequently is mixed. Sages likewise are consistent with their view, M. 5:2D. The original heave-offering was neutralized, and so the replacement heave-offering contains only slightly less than one percent of true heave-offering. Only this true heave-offering imparts the status of heaveoffering to unconsecrated produce with which the replacement heaveoffering later is mixed. At M. 5:6 the heave-offering falls into less than a hundred times its quantity in unconsecrated produce. The whole mixture is given the status of heave-offering. What if some of this produce falls elsewhere? Eliezer again is consistent with his position of M. 5:2C. He rules that the heave-offering that disappears into the unconsecrated produce is the same as that which later falls out. Sages, H, persist in stating that the heave-offering has been diffused in the unconsecrated produce. That which falls out of the mixture contains only that proportion of true heave-offering which is contained in the larger batch as a whole. As at M. 5:5D, only the true heave-offering in the mixture imparts the status of heave-offering to the unconsecrated produce with which it is

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mixed.ll I-J extends sages view to the cases of unconsecrated dough which has been leavened with heave-offering, and to immersion pools which have been mixed with drawn water and so made unfit. The principle is the same in either case. In subsequent mixtures, we take into account only the percentage of the dough, or water, which originally had a forbidden status. A. A se'ah rif heave-qffering12 that fell into less than a hundred [se'ahs rif unconsecrated produce] [= M. 5:6E]B. lo, it [i.e., all of the produce] takes on the status of heave-offering. C. [One who eats it unintentionally] is not [however] liable to repay its value and the added fifth [see M. 6: I]. D. And they do not use it to repay the value and added fifth for (reading 'l, Lieberman, TK, I, p. 378) another batch [of heave-offering which accidentally was eaten by a non-priest], except in accordance with a calculation [of the quantity of unconsecrated produce in the mixture]. E. A se' ah rif heave-qffering that fell into a hundred [se' ahs rif produce and was neutralized], and one lifted it out [if the mixture, for a priest] [= M. 5:5A-B]F. if [the produce into which the heave-offering fell] was untithed, they designate it (following Lieberman, loc. cit., and reading 'wth for 'wtn) [i.e., the se'ah that is lifted out] heave-offering (Lieberman, loc. cit., deletes: and tithes) for another batch [of untithed produce], G. or he designates the heave-offering [and tithe] (E; V reads: heaveoffering of the tithe; see Lieberman, loc. cit.) which is in it. H. If [the produce into which the heave-offering fell] was first tithe from which heave-offering of the tithe had not been removed-he designates it [i.e., the se'ah which is lifted out] (emend to read:) heaveoffering of the tithe for a different batch, I. or designates the heave-offering of the tithe which is in it. ]. If [the produce into which the heave-offering fell] was second titheone deconsecrates it with coins at the value of heave-offering, K. less the value of the [true] heave-offering that is in it. L. If it was new produce [i.e., produce for which the 'omer had not been offered] [into which the heave-offering fell]-let him wait until Passover and [only then] give it to a priest.

T. 6:1 M. A se' ah rif heave-qffering which fell into less than a hundred [se' ahs] rif produce [and that produce there~] took on the status rif heave-qffering [= M. 5:6E]-

11 12

See Neusner, Eliezer, vol. I, pp. 56-7. E reads "unclean heave-offering." This is a scribal error.

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N. if [the produce] was untithed, he designates it heave-offering and tithes for a different batch, 0. or he designates the heave-offering and tithes (E; V reads: heaveoffering of the tithe) which are in it. P. If [the produce] was first tithe from which heave-offering of the tithe had not been removed-he designates it heave-offering and tithes for a different batch, Q or he designates the heave-offering of the tithe which is in it. R. If [the produce into which the heave-offering fell] was second tithehe deconsecrates it with coins at the value of heave-offering, less the value of the [true] heave-offering which is in it. S. If [the produce into which the heave-offering fell] was new [i.e., produce for which the nym), 14 but [the householder] was tending his field for [its] grapes,

14

See Lieberman, TK, 11:704.36-37.

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E. [or if] late-ripening grapes [remained on the vine], and [the householder] was tending his field for [its] greensF. if workers were passing among them [i.e., the late-ripening fruit], G. [and] if the householder scrutinizes their [activities while they are in his field] (mqpyd '!Jhm)H. lo, these [late-ripening fruit] are liable [to the removal of tithes]. I. But if not [i.e., if the householder does not scrutinize the workers' activities], lo, these [late-ripening fruit] are exempt [from the removal of tithes]. T. 3: 12 (p. 240, Is. 35~39) (D~I: cf. y. Dem. l:l [2ld], b. Pes. 6b) adds to T.'s random observations concerning ownerless produce, but reveals no interest in M. The distinction between ownerless produce (A) and produce which is considered the property of the poor (B) is that the former is deemed the property of whoever happens to consume it-including beasts (cf. T. Pe'ah 3:1)-while gleanings, etc., are specifically designated for the use of the poor. It follows that a man may tether his beast near abandoned produce, for whatever the beast eats is considered hers by right. But the beast, for obvious reasons, does not qualifY as a "poor man." Her owner is therefore forbidden to tether her where she might by chance nibble at the offerings which belong to the poor. HD adds that even if the beast's owner is himself a poor man, he is robbing his fellow paupers by permitting the beast to consume its fill. C qualifies the above. If the owner-in this case, certainly a pauper-wishes his beast to eat of the offerings of the poor, he simply gathers the produce himself and then feeds the beast. Once he has taken possession of the produce as a poor man, he may do with it what he wishes. D~I is autonomous of both A~C and M., but at last shows some interest in relating the question of abandoned property to the tithing matters which preoccupy M. The problem is whether late-ripening produce, which is normally of poor quality and allowed to rot on the vine after the harvest (cf. Rashi, b. Pes. 6b, s.v., whtnf), is considered to be ownerless once the field itself is being cultivated for a new crop. As we would expect, all depends upon the intentions of the householder. If he scrutinizes the activities of workers among the late-ripening fruit, he clearly demonstrates his intention to maintain control over the disposition of the produce. Thus the produce remains subject to the law of tithes, for the householder has not relinquished possession of it. It follows that if he ignores the worker's actions, he no longer has any

A~C

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interest in the late-ripening produce, and intends to let it rot untended. Despite its presence in a tended field, the fruit in question is considered ownerless, and no longer subject to the law. 5:4 A. A man shall not sell his straw, olive-peat or grape-pulp to one who is untrustworthy concerning [the removal of] tithes, B. [if the purchaser intends] to extract the [potable] liquid [remaining in the olive-peat or grape-pulp]. C. And if [prior to the sale the householder] extracts [edible produce from the above waste-products, the extract] is liable to [the removal of] tithes, but is exempt from [the separation of] heave-offering. D. For one who separates heave-offering has in mind [the edible produce found among] that which is improperly threshed, and that [found] along the edges [of the pile], and that which is [found] in the straw. M. 5:4 (C-D: cf. T. Ter. 3:6)

A carries forward the formulary pattern of M. 5:3A, an apodictic prohibition (l' ymkr 'dm), and, according to B, makes the same point. The manufacturer, like the farmer, must ensure that all edible produce over which he has control is eventually tithed. A-B is clear that the liability of a product to the law of tithes depends upon whether or not its owner deems it to be a food. This must be borne in mind by anyone seeking to turn a profit from the sale of agricultural or manufacturing wastes (e.g., for use as fodder). While straw or mash may indeed be of no use as food to the processer of grain, wine or oil, he must nevertheless be sure that anyone to whom he sells these wastes is reliable in the matter of tithing, for kernels remaining in the straw, or liquid remaining in the mash, may be used as food by the purchaser himself (cf. M. 5:6). Should the latter consume these without tithing, the seller will have caused forbidden produce to be consumed as if it were common food. A secondary development of A-B, C-D points out that the seller has the option of extracting the edible substances from the straw or mash before the sale. Presumably, he may then sell the waste to whomever he pleases. The problem now, however, is the method of tithing the edible extract. Since the grain, for example, has presumably had its heave-offering and tithes removed as soon as it was piled on the threshing-floor (cf. p. 181, n. 3), we want to know how to tithe the kernels now removed from the straw, for these may be considered a separate batch of produce. C's claim, that on[y tithes need be removed from the second batch, is explained at D (cf. M. 1:6U). Heave-offering

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was separated from the entire batch of grain-including what is mingled with the discarded straw-at the time the processing of the batch was completed. The result is that the heave-offering of the present batch (removed from the straw) has already been removed on its behalf, and may not be removed a second time (cf. M. Ter. 3:1). The tithes, however, are a separate problem. While tithes have been removed from the original batch of grain, we assume that the householder intended his tithing to release for use only that batch of grain which he intended to use as food. Now that he has designated a second batch of grain for use as food, however, he must remove tithes from this batch as well. A. One who winnows his straw without special concern [for removing edible kernels] (stm), B. and another purchased itC. even [if he purchased the straw] in order to extract [edible kernels] from it, D. he is exempt [from tithing the extracted kernels]. E. Said R. Simeon b. Gamaliel, "The House of Shammai and the House of Hillel concur that a man shall not sell a stack of grain, or a basket of grapes, or a vat of olives unless [he sells it] to a flaber or (w-) one who prepares [his food] in cleanness." F. He [i.e., a flaber] sells him [i.e. an 'am ha'areJ:] wheat, even though [the flaber] knows that [the 'am ha' ares] does not knead his dough in cleanness. G. And similarly, a man shall not give his neighbor a dish [offood] (tbil) to cook [E, G add: for him], or dough to bake for him, unless he indeed knows that [the neighbor] removes the dough-offering for him (qwJ!l lw flUz), and prepares [the food] in cleanness. H. And similarly, a Levite [shall receive no tithes unless it is known that he prepares his food in cleanness: Lieberman] (wkn bn lwy). I. (Lieberman emends: Lo,) he [i.e., a flaber] acquired (ntmnw lw) tenant-farmers [who were 'amei ha'areJ:], and they were preparing olives]. lo, this one [i.e., the flaber] removes a tenth of the [untithed] olives and of the untithed oil from [the produce belonging to] his household K. (Lieberman emends: "and says,") "Whatever these olives [of the tenant-farmer] are capable of producing, its tithe is in the southern [portion of the olives which I have separated from my own produce], and its heave-offering of the tithe is in the southern-most [tip of the same batch]." T. 3:13 (pp. 240-41, Is. 39-46) (E-F: cf. y. Dem. 6:7[25c])

A-D, E-H, and 1-K offer materials supplementary to M. 5:3-4's prohibitions of trade with those who are untrustworthy regarding tithes.

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The three units are autonomous of each other, and only A-D exhibits any literary relationship to M. The case at A-D differs from that of M. 5:4A-B only in that here the householder has not winnowed the straw with great care. The consequence, that perfecdy good grain will remain trapped in the straw, indicates that the householder is unconcerned that the grain will be sold at the same low price as the straw. In other words, he makes no distinction between the grain and the straw. Therefore when someone purchases the straw as straw, the law takes no account of the grain purchased along with it. It follows that whatever grain the purchaser happens to extract is not considered food, and may be eaten without tithing. T., it appears, takes issue with M. for we have seen that M. considers the waste products subject to the law as long as the purchaser intends to derive food from them. T. argues, to the contrary, that only the intentions of the householder determine the status of the edible produce found within discarded materials. Since the seller of the straw takes no note of the grain, the purchaser, regardless of his own evaluation of the grain in the straw, need not tithe. 15 The rulings at E-H control the transfer of produce between those who eat their tithed food in a state of priesdy cleanness (haberim) and those who neither tithe nor observe the laws of cleanness ('amei ha'ares_). While not direcdy relevant to the law of tithes, the rulings nevertheless supplement M. 5:3-4's interest in relations between h_aberim and 'amei ha'ares. The concern of E is that the h_aber permit none of his produce to leave his possession unless he can ensure that it will be prepared in cleanness. The point is parallel in principle to that of M., even though it is under dispute between the Houses at M. Dem. 6:6. F certainly contradicts E, for it permits precisely what E forbids. I cannot explain the contradiction. 16 The point of G is that one must supervise the preparation of one's meals unless the person doing the preparation

15 Lieberman, who argues that A-D furthers T.'s particular interest in ownerless produce, offers the following plausible interpretation. "If he winnowed carelessly, and was unconcerned with extracting the wheat from the straw, the wheat is simply ownerless produce and is exempt from tithes-even if the purchaser acquired the straw in order to remove the wheat" (TK, II:705.39). 16 y. Dem. 6:7 (s.v., J'yn) explains the rulings as an expression of concern for one who is starving for lack of bread. The explanation is not entirely implausible. T. Sheb. 6:20 forbids the sale of large quantities of Seventh Year produce to an 'am ha' areJ., but permits the sale of a quantity sufficient for three meals. Presumably, the smaller quantity is not useful for trade, and will support the life of the purchaser.

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can be trusted to preserve the food's cleanness. 17 The text of H is corrupt, and I have simply supplied, in brackets, Lieberman's suggested interpretation. I~K assumes the responsibility of a householder to make sure that all produce of his fields is properly tithed. The problem at hand is simply the means by which the householder makes sure that produce earned by his tenant-farmers is properly tithed. Since they themselves harvest the produce and take their own portions, the householder has no opportunity to tithe the produce himself, for he cannot remove the tithes from what has already become theirs. He solves the problem by tithing from his own produce on behalf of the produce belonging to the tenant-farmers. He separates a quantity of produce from his own stock which is equal to one-tenth of the quantity taken by the tenantfarmers, and then designates a portion of it as tithe and heave-offering of the tithe on behalf of the produce earned by the tenant-farmers. Mter removing the sanctified portion, he may consume the rest. 18 5:5 A. One who purchases a field of greens in SyriaB. if [he purchased it] before [the produce] reached its period of tithing, [he] is required [to tithe the entire harvest], C. but [if he purchased the field] after [the produce] reached its period of tithing, he is exempt [from tithing the entire harvest]. D. And he gathers Uate-ripening produce] as he pleases. E. R. Judah says, "Also: let him hire workers to pick [the produce for him]" (llql following 0 2). F. Said R. Simeon b. Gamaliel, "Under what circumstances [must he tithe produce of a Syrian field which he purchased prior to the crop" period of tithing]? When (bzmn f-) he acquired the land [along with the produce]. G. "But when ('bl bzmn f-) he did not acquire the land-

17 Cf. T. Dem. 4:31 and Sarason's comments, in M. Demai, p. 149. See also the slightly different view of matters offered by Lieberman (TK, 11:706.43), who views the prohibition as one forbidding the gi.ft of food to one who does not remove the necessary offerings, or prepare food in purity. Lieberman's view is based upon a varient reading found in MS. Erfurt and in G. 18 For further discussion, see Lieberman (TK, 11:706.44-45). Cf. also GRA's emendations and the subsequent comments of MB on the emended text. A large block of materials treating the problem of the householder who must share his produce with his tenant-farmers appears in T. Dem. 7:1-15, ofwhich T. Dem. 7:11-12 are particularly relevant to our problem. Sarason's comments may be found in M. Demai, pp. 221-25.

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H. "if [he purchased the produce even] before it reached its period of tithing, he is exempt [from tithing the harvest]." I. Rabbi says, "Also: [if he purchased the field after most of the produce reached its tithing season, he tithes] according to the percentage [which ripens after his purchase]" CP lpy h_sown). M. 5:5 (A~F = y. Ma. 1:4 [49a])

Produce of fields in Syria is subject to the law of tithes only if the field is owned by an Israelite. 19 A-C assumes this postulate, but adds an important refinement based upon M.'s notion that produce becomes subject to the law of tithes only when it ripens (M. 1:2-3, cf. M. 5:3). An Israelite who acquires a field in Syria need tithe the produce of that field only if the produce was unripe at the time of purchase and later ripened under his ownership (B). Produce ripening before the Israelite acquires the field (C) need never be tithed, for at the time at which it could have become subject to the law it was beyond Israelite jurisdiction. The series of glosses to this ruling may be grouped into three independent units, D+ I, E, and F-H. D+ I offers a dispute concerning the purchaser's obligation to tithe late-ripening produce, which reaches maturity after the field of ripe produce at C has been purchased (so T. 3: 14). D permits the purchaser to make tithe-free use of the lateripening produce, even though it has ripened under his ownership. 20 The point seems to be that the status of the smaller percentage of the

19 Although governed in the past by Israelite kings, Syria is not deemed part of the original gift of God to Israel, a fact which raises a number of ambiguities regarding the application in Syria of certain laws specific to the Land of Israel. The problem is discussed at b. Git. 8a, and is summarized in regard to agricultural law by Maimonides at Heave-Offering, 1:2~5. For a recent contribution toward determining those portions of the Land of Israel which were subject to tithing laws, see Sussman, "Inscription," pp. 97~104. The status regarding the law of tithes of produce grown in Syria is under dispute by Yavneans at M. Hal. 4:7. There Eliezer and Gamaliel dispute whether tenantfarmers to a non-Israelite in Syria need tithe their produce and let their fields lie fallow in the Seventh Year. The problem is pressing, for while tenant-farmers work the land, they do not own it. Gamaliel, who exempts their produce from laws applicable to Israelite produce, apparendy carries forward the position which becomes normative in M. 20 T. attributes the position to Aqiba, an attribution supported by an independent, but parallel, baraita in y. Ma. 5:4(51d): tl!)!: A field reaching a third of its growth under the ownership of a non-Israelite, and an Israelite purchased it from him-R. Aqiba says, "That which ripens afterward is exempt," but Sages say, "That which ripens afterward is liable." Cf. b. H. Hul. 136a and Lieberman, TK, 11:707.47~48.

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produce is judged by the status of the field as a whole. This notion is disputed by Rabbi (1), whose opinion, unaccountably, has been placed at the end of the pericope. Rabbi holds to the literal meaning of A-c, that Syrian produce ripening under Israelite ownership must be tithed. He maintains, therefore, that the purchaser of a field containing both ripe and unripe produce must tithe that percentage of the crop which was unripe at the time of the purchase. Of the remaining glosses, E and F-H, only E presents a difficulty. I cannot determine what is at stake for Judah, for I do not know why someone would object to the hiring of workers to harvest either the crop of B or that of C (but cf. MR)2 1 Simeon b. Gamaliel's gloss of A-C (F-H) is obvious. If the crop alone was purchased, but not the land, the produce remains exempt regardless of when the purchase took place, for it is the ownership of the land which imposes liability upon the crop. A. One who purchases a field of greens in Syri~if [he purchased it] bifore [the produce] reached its period of tithing [he] is required [to tithe the entire haroest] (b;yyb, following Lieberman). [.lf he purchased it] after [the produce] reached its period of tithing, he is exempt [.from tithing the entire haroest] (Pfwr, following Lieberman) [= M. 5:5A-C]. B. "He gathers [late-ripening produce] as he pleases, and is exempt [from tithing]"-the words of R. Aqiba [cf. M. 5:5D]. C. But Sages say, "Also: [if he purchased the field] after [the produce] reached its tithing season, he is required [to tithe] according to the percentage [which ripens after the purchase]" [cf. M. 5:5I]. D. Sages concede to R. Aqiba that if he [i.e., the Syrian] sold to [the Israelite] grain [ready] to reap (lq J.Wr), or grapes [ready] to harvest (l'bfwr), or olives [ready] to pick (lmJ.wq), he [i.e., the Israelite] gathers as he pleases and is exempt [from tithing that which ripens after the harvest]. T. 3: 14 (p. 241, Is. 46-50) (D: cf. y. Ma. 5:4 [51d] b. Hul. 136a)

T. not only makes important formal improvements of M. 5:5, but, further, attributes to Aqiba the basic position of M. Mter citing M. at A, 21 MR's position is based upon b. Men. 67a, s.v. gr Intgyyr, which MR understands to release from the law of tithes produce which is processed at the hands of gentiles. He holds that the point of Judah's ruling is to require the Israelite purchaser to hire Israelite workers in the harvest of the crop, so that, in cases in which the produce is purchased before it ripens, the householder will not try to prevent the produce from being tithed by the ploy of hiring gentile harvesters. I do not see how this issue can be read into Judah's lemma.

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B-C recasts, as a dispute between Aqiba and Sages, the disconnected stichs of M. 5:5D and I (attributed in M. to Rabbi). 22 Formally, the fact that Sages, D, concede to Aqiba indicates that Aqiba emerges the victor in the dispute. Yet, substantively, the concession is no concession at all, but simply points out a case in which none of the concerned parties would have reason to disagree. Sages state that if the Israelite buys produce ready for the harvest, he is exempt from tithing that which he harvests, and may pick late-ripening produce as he pleases thereafter. This is simply an exemplification of the point made by Simeon b. Gamaliel at M. 5:5 F-H. 23 Since the Israelite has bought the produce, not the land, the harvest is by definition exempt, for it is grown from land owned by a non-Israelite. Note that T. accounts for all of the positions cited in H., except the obscure gloss of Judah (M. 5:5E). 5:6 A. One who steeps grape-pulp in water [to form a beverage] (hmtmd), 24 B. and added a fixed measure of water, C. and [then] found the same measure [of liquid in the tub after pressing the water from the pulp]~ D. [the liquid] is exempt [from the removal of tithes]. E. R. Judah declares [the liquid] liable. F. [If] he found more Uiquid] than the measure [of water he originally poured over the pulp], G. he removes [tithes] on behalf of [the beverage] from another batch (mmqwm 'h.r) H. according to the percentage [of the liquid which exceeds the original quantity of water]. M. 5:6 (A-E = y. Ma. 5:5 [52a], y. Dem. 1:1 [2ld], y. M.S. 1:3 [52d], b. Pes. 42b, b. Hul. 25b)

The pericope carries forward M. 5:4, sharing the latter's assumption that potable liquid extracted from the waste of wine production is

For extensive form-analytical comment, see Primus, Aqiva, pp. 74-79. Lieberman interprets Sages' to exempt the produce only if it was purchased in a harvested condition. Thus, their position is not like that of Simeon b. Gamaliel's, for they hold that the produce is liable if purchased while attached to the ground, whether or not the land was included in the purchase. Lieberman does not explain why he interprets the Sages' remark in this manner, and I cannot see what he gains by it, since we can in no way imagine Aqiba to hold such a position. 24 Such grape-pulp wine is called temed. See Bunte, p. 149, n. 1. 22 23

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deemed food and must be tithed. Under dispute at A-D+ E is whether such liquid has indeed been extracted from the pulp. A-D argues that since the liquid pressed from the pulp is equal in volume to the water poured over it, we assume that the water has simply passed through the pulp without carrying any of the pulp's liquid with it. The beverage is deemed to be water and, like water, is exempt from the removal of tithes. 25 Judah's point is that, even though the volume of liquid is equal to the original volume of water, the liquid has absorbed both the color and the flavor of the grape-pulp. Since the householder, having gone to the trouble of steeping the pulp, clearly wants the water to absorb the flavor, the liquid must be tithed as if it were wine (cf. M. Ter. 10:1, 3). 26 F-H must be interpreted in light of A-D. The water in the mixture is distinct from the liquid extracted from the pulp, and may not be removed as tithe on behalf of the liable liquid (cf. M. Ter. 1: 10). It follows that tithes for the pulp-liquid may not be removed from the mixture before us, for exempt water will inevitably be removed on behalf of the liquid. Rather (G), the householder removes tithes on behalf of the pulp-liquid from another batch of untithed liquid which has not been mixed with water. Secondly (H), the quantity of liquid removed as tithe from the second batch will be only a percentage of that quantity of liquid which exceeds the original quantity of water. If, for example, the owner poured a gallon of water over the pulp and extracted five quarts of liquid, only one quart of the liquid is subject to the law of tithes, for we assume that the quart represents the actual quantity of liquid pressed from the pulp. The owner, then, removes tithes from another batch in a quantity equal to that required from a quart of liable liquid. From Judah's perspective, the problem so carefully worked out at F-H could never arise. Judah, who holds that the water is indistinguishable from its flavoring agent, will have no difficulty in determining how to tithe liquid exceeding the original quantity of

25 M. M.S. I :3 prohibits the purchase, with coins designated as second-tithe, of unfermented temed. The liquid, in other words, is deemed water, and cannot be sanctified as second-tithe. 26 In Judah's view, unconsecrated produce which has absorbed the flavor of produce designated as heave-offering, acquires the status of heave-offering on!J if the owner of the unconsecrated produce desires the absorbed flavor. See Peck, M. Terumot, M. Ter. lO:lff. The logic is identical in the present pericope. Since the householder desires to use as wine the grape-flavored water, it is deemed wine, and no longer may be used as water.

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water added to the pulp. Tithes are simply removed from the mixture itself, just as if it were a new batch of wine. 5:7

A. Ant-holes which remained overnight beside a stack [of grain] from which tithes had yet to be removed ('rymh hh.ybt)B. lo, these [i.e., kernels found in the ant-holes] are liable [to the removal of tithes], C. for clearly [the ants] have been dragging [grain] from a processed batch (dbr gmwr) all night long. M. 5:7 (A-B = y. Ma. 5:6 [52a], y. Hal. l :8 [58a])

C explains A-B. The stacked grain has been processed and is therefore liable to the removal of tithes (M. 1:6Q-R). Any grain found in adjacent ant-holes is also assumed to be liable, for we suppose that the ants have taken the grain from that very pile. 5:8

A. Baalbekian garlic, 27 omons of Rakhpa/ 8 Cilician split-beans/9 and Egyptian lentils 30 B. R. Meir says, "Also: qirqai"; 31 C. R. Yose says, "Also: qotnym" 32 D. are exempt from [the law of] tithes, and are purchased from any-

one in the Seventh Year. E. The seeds of the higher pods of arum (lwp), 33 the seeds of leeks, the seeds of onions, the seeds of turnips or radishes, F. and all other garden seeds which are not eaten,

27 Bunte points out that Baalbek was, under the name of Heliopolis, a prosperous Roman trade center in the province of Coele-Syria, northwest of Damascus (Bunte, p. 41, n. 2). 28 Bunte (loc. cit., n. 3) places Rakhpa ten miles south of Baalbek. 29 Ibid., n. 5. 30 Ibid., n. 6. 31 qrqs has often been interpreted as a reference to colocasia (colocasia antiquorum, Low, p. 240ff.), but Lieberman argues that no certain identification is possible (TK, 11:709.56). Bunte (p. 242, n. 7) suggests that qrqs is the root of the Cilician split-bean. If so, Meir is adding that the roots of the plant, as well as the bean, are exempt from tithes. The point is superfluous, however, for if the plant does not grow in the Land of Israel, all of it is by definition exempt. 32 As with qrqs certain identification is impossible. Cohen (p. 278) translates, "wild lentils," in which case they are exempt as uncultivated produce, not because they are foreign to the Land of Israel. Bunte's suggestion (ibid., n. 8) that the reference is to the pods of the split-bean suffers from the same weakness noted in n. 31 above. 33 Arum maculatum, Low, pp. 238ff. For a thorough description of appearance and uses, see Bunte, p. 143, n. 10.

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G. are exempt from [the law of] tithes, and are purchased from anyone in the Seventh Year. H. For (f-) even though the plants from which they were gathered('/ryhn: lit., "their fathers") [were designated as] heave-offering, lo, these [seeds] may be eaten [even by non-priests, for they are not considered food]. M. 5:8 (A-B = y. Dem. 2:1 [22b]; E-F: cf. Sifra Behuqotai 12:9, Sifre Dt. l05c, y. Ma. 1:1 [48c], y. Ma. 5:7 [52a]; H = y. Ma. 5:7 [52a]) The rulings at A+D and E-G share identical apodoses, each giving examples of produce which, for reasons based upon M. l: lA-B, are exempt from the law of tithes. The items of A+ D are exempt from the law because they do not grow in the Land of Israel (cf. M. 5:5). They may therefore be imported into the Land and consumed there without removing tithes. It follows that Seventh Year prohibitions do not apply either, for these prohibitions apply only to produce grown in the Land. The interpolated items of B-C are unidentified, but presumably refer to types of produce which are exempt from the law by virtue of being foreign to the Land of Israel. The items at E-G, as F makes clear, are exempt because they are not used as food (M. l:lBl). H carries forward the point of E-G. Since only food may be designated as heave-offering, the inedible seeds of plants which have been so designated remain permitted for the use of non-priests, even though the plants themselves are permitted only to priests. The ruling stands within Aqiba's assumption (M. 4:6K-L) that only the part of the plant which is normally eaten can become subject to the law of tithes, even if a secondary part of the plant is in fact consumed. So here, the status of heave-offering is conferred only upon that part of the plant which is normally used as food. A. What is [considered] garlic qf Baalbek [cf. M. 5:8A]? B. Any [garlic] which has only a single corolla (dwr) surrounding the

central stem [rather than individual cloves: Lieberman]. C. What is [considered] onion qf Rakhpa [cf. M. 5:8A]? D. Any [onions] the stalks ofwhich are not disintegrated within the [bulb]. E. Rabban simeon b. Gamaliel says, "Any [onions) which have only a single husk." F. What are [considered) Cilician split-beans [cf. M. 5:8Al]? G. (following E:) These are large and square. H. Rabban Simeon b. Gamaliel says, "There has never been a square bean since the six days of Creation [i.e., such beans receive their shape during processing: Lieberman].

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I. What are [considered] Egyptian lentils [cf. M. 5:8AJ? ]. Those which are pointed on top. K. Rabban Simeon b. Gamaliel says, "Any ~entils] which have no seeds in them. L. R. Meir says, "Also qilqaf for their stalks are small and their seedpods (hlq1: Jastrow, p. 346) are numerous [cf. M. 5:8BJ. T. 3:15 M. R. Yose says, "Also the qantyn 34 which are beneath them [cf. M. 5:8CJ. N. Such as these [i.e., the items of A-K], Sages stipulated, should be clearly marked (kgwn 'lw J.rkw flkmyn: following E), 0. for no similar types [are found] in the Land of Israel. P. But [in regard to] hazelnuts, and peaches, and cedar nuts [imported from outside the Land of Israel], [Sages] did not stipulate that they be clearly marked. Q for similar types [are found] in the Land of Israel. R. [Regarding the tithing status of mixtures of foreign and domestic] produce, Sages ruled neither according to taste, nor fragrance, nor appearance, nor price, but solely according to [the geographical origin of] the major portion [of the mixture]. S. And all other garden seeds [= M. 5:8F]: T. for example (kgwn), seeds of cucumbers and gourds, and seeds of turnips and radishes. U. And a lather garden seeds which are not eaten are exempt from [the law qf] tithes, and are purchased from anyone in the Seventh Year [= M. 5:8F-GJ. V. R. Judah says, "They stated [the ruling with respect to] garden seeds only." W. R. Yose says, "Also: [they stated the ruling with respect to] seeds of the field, such as the seed of woad and vetch." T. 3: 16 T. 3:15-16 (pp. 241-42, Is. 51-64) A-M: cf. y. Ma. 5:7 [5ld], H = y. Ned. 3: 2 [37d], y. Shebu. 3:9 [34d]; N-0: c£ y. Dem. 2:1 [22b]; R = T. Dem. 4:11; T-0: cf. y. Ma. 5: 7 [52 a])

T. concludes its tractate with a series of citations, glosses, and supplements to M. 5:8. A-K provides identifying characteristics of the foreign produce listed at M. 5:8A. L-M cites and glosses M. 5:8B-C, but the point of the added material is unclear. The characteristics of the stalks and seed-pods of qilqas do not explain why M. exempts it from the law, nor does the explanatory information added to Yose's lemma

34 The qilqa.S mentioned by Meir and the qantym of Yose are equivalent to the qarqas and qotnym of M. 5:8B-c. The species are unidentified. See Lieberman, TK, 11:709.56-57.

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(M) add to our understanding. y. makes better sense of matters by recasting L-M into the form of A-K: "And what are [considered] qryqaJ Whatever has small stalks and numerous pods. And what is similar to it? Said R. Yose, "For example, qunyata." Thus, at least on the surface, Meir and Yose are made to add to A-K's list of foreign produce receiving description, a position supported by N. The point of N-Q is obscure as well. We are told that the foreign produce of A-K should be marked upon importation into the Land of Israel, for there are no similar types of produce grown in the Land. Further, produce which is grown on both sides of the border need not be marked when that grown abroad is imported. In the absence of further information, the first problem before us is to interpret the reason for marking the produce. If we assume, as have the copyists and commentators cited by Lieberman, that the point of marking the produce is to distinguish this non-tithable produce from tithable produce grown inside the Land, then we would like to correct the text to read that the items of A-K should be marked, for produce similar to these in appearance do grow in the Land of Israel, while the items of P need not be marked, for these do not grow in the Land. By marking imported produce of a type which grows in the Land as well, we insure that heave-offering and tithes will be removed only from domestic produce, which alone can become sanctified. Similarly, failure to mark imported produce of a type which does not grow in the Land will result in no harm at all, for no one will assume that such produce needs to be tithed. The problem with this correction, as HD (followed by Lieberman) points out, is that T. 1:1 c assumes that the items of P are indeed native to the Land, for it defines the point in their growth at which they become subject to the law. We must, then, deal with the text before us, for it shares assumptions attested elsewhere in T. The text says that precisely the produce which is in danger of being mistaken for tithable produce need not be marked. Clearly, if T. is to make sense, there must be some reason for marking foreign produce other than to distinguish it from domestic produce for tithing purposes. In absence of other information, however, the text remains unintelligible. 35

35 According to lieberman, imported produce of a type which does not grow in the Land of Israel was marked "so that people would know the types of produce to which Mishnah referred; not in order to prevent errors regarding the tithing of produce, but rather for instructional purposes, in order to understand Mishnah." Further, imported produce of a type which grows inside the Land as well was not marked, "for the yield

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R is identical to T. Dem. 4:11, and clearly has been taken from a larger unit, T. Dem. 4: 11-12, which discusses the status of mixtures including domestic and imported produce. The rule simply states that the status of such mixtures is determined solely by the status of the major portion of produce composing the mixture. If the major portion is domestic, the whole mixture is subject to the law, while if the major portion is imported, the entire mixture is exempt. The ruling does not help us interpret N-Q, for marking imported produce of a type also grown domestically would certainly facilitate determining which type constitutes the majority of the mixture. S-T and U-W are independent citations and glosses of M. 5:8E-F. S-T simply provides examples of the kinds of seeds M. has in mind. At U-W Judah and Y ose dispute the kinds of seeds which M. specifies as inedible, and therefore exempt from the law. slyq pyrq' wkwl' mskt b5yyt' dfmy'

of the land was insufficient for its population. Thus produce was brought from outside the Land and remained unmarked, for everyone could recognize these" (TK, 11:710.58). I know of no means of evaluating Lieberman's arguments, each of which appears rather arbitrary to me.

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MISHNAH-TOSEITA MAASEROT EPILOGUE

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THEOLOGICAL AFTERWORD TO THE MISHNAH-TOSEFfA MAASEROT jACOB NEUSNER

The key to the entire system of interaction between God and Israel through the Land and its gifts emerges in the Halakhah of Ma 'aserot, which deals with the difference between possession and ownership. God owns the world, which he made. But God has accorded to man the right of possession of the earth and its produce. This he did twice, once to Man in Eden, the second time to Israel in the Land of Israel. And to learn the lesson that Adam did not master, that possession is not ownership but custody and stewardship, Israel has to acknowledge the claims of the creator to the glory of all creation, which is the Land. This Israel does by giving back God's share of the produce of the Land at the time, and in the manner, that God defines. If there is a single obstacle to obedience to God's will, it is man's natural inclination to take possession. For it is the attitude expressed in the claim of entire right of ownership-"my power and the might of my hand have gotten me this abundance" (Dt. 8:1 7)-that conveys the arrogance motivating rebellion such as took place to begin with in Eden. Someone who can do anything that he wants with a given object or person or property owns that object, person, or property. Someone

whose will therefor is limited by the will of Another does not. Hence, for its part, the antidote to rebellion and sin, which is the Torah, would impose upon ownership of the Land the supererogatory obligation to acknowledge a divided right of ownership and possession, that is to say, a partner's claim. And for Israel in the Land, the partner is God. Ma'aserot, the tractate concerning "tithes," discusses the entire set of agricultural dues, viewed generically: what the Israelite owes God out of the produce of the Land (and not in particular the tenth of the crop paid to this party, or the tenth of that tenth paid to that). The rules set forth here pertain to all the agricultural tithes and offerings and dictate the procedures-liability, timing, special problems-that pertain to them in general. The point of the Halakhah, permeating all categories, is that when Israel asserts its rights of possession, God's interest is aroused and he lays claim to his share in the crop of Land that ownership of which is held in partnership between God and the Jacob Neusner - 978-90-47-41637-1 Downloaded from Brill.com02/08/2023 11:54:33AM via Universite degli Studi di Milano

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Israelite farmer. Then the rest follows, a vast exercise in how the will of God and the will of the Israelite meet in concord, Israel obeying God's laws about the disposition of the abundance of the Land. Among the tractates that define the relationship between Israel and God on the Land, Ma'aserot is at once the most detailed and the most abstract, meaning, through a mass of small rules, a message of broad consequence is set forth. The details add up to a definition of what kinds of produce are subject to sharing with the Land's other proprietor, God, and, of greatest interest to a religious understanding of matters, exactly when the obligation of sharing is incurred. So in the aggregate the Halakhah answers these questions: What is to be subjected to tithing of various kinds, and when is the obligation to do so incurred? As to the former, Scripture is clear: "You shall tithe all the yield of your seed that comes forth from the field year by year" (Dt. 14:22). All produce of the Land thus is subject to sharing. As to when the removal of God's portion of the crop must take place, Scripture requires an annual donation. Jaffee comments (p. 1), " ... tractate Maaserot is primarily interested in the concerns of the common Israelites who want to eat their food. The tractate's questions ... reflect those concerns. That is: When, in the course of a crop's growth, may it be used to satisfY the obligation to tithe? When, further, in the course of the harvest of the crop, must the tithes actually be paid?" The Halakhah of the Oral Torah fills in the gap left by that imprecise rule with a mass of details that add up to a general rule, one of remarkable theological depth. The Halakhah answers three questions: at what point does produce become liable to the designation and separation of tithes, what produce falls into the category of tithing, and when is the act of tithing required? The answers to these Halakhic questions appeal to a single theological conception.

WHEN DOES THE CROP BECOME LIABLE TO TITHING?

The basic principle is that when the produce is suitable for use by its owner, then it becomes subject to tithing and may not be used until it is tithed. The Halakhah then indicates the point in the growth of various species at which tithes may be removed. That is the moment at which the produce is deemed edible. If someone picks and eats unripe produce, that does not impose the obligation to tithe, since the

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commonality of people do not regard unripe produce as food and do not eat it. Only when people ordinarily regard the produce as edible does consideration of tithing arise. Then there are two stages in the process, votive and obligatory. Crops may be tithed when the produce ripens. Then the produce becomes useful, and it is assumed that the farmer values the produce. But crops must be tithed when the farmer claims the produce as his own. So what makes the difference? It is not the condition of the produce at all, but, rather, the attitude toward the produce that is taken by the farmer who has grown it. That attitude takes effect through the farmer's act of ownership, beyond possession. Asserting ownership takes place when he brings untithed produce from the field to the courtyard or prepares it for sale in the market. At that moment, the farmer having indicated his claim to the produce and intent to use it for his own purposes, God's interest is aroused, his share then is due. God responds to man, specifically, God's attitudes correspond to those of man: when (Israelite) man wants to own the crop and dispose of it as he wishes, then, God demands his share. That raises the question, what about the status of the crop from the time it becomes ripe and so liable to tithing until the time that the crop is processed and therefore required for tithing? Specifically, what about the period of time from when the crops begin to harvest until after the harvest? That yields the concrete issue, May those who work on it or process and transport it nibble on it? Jaffee (p. 2) comments, "Untithed produce represents a taxonomical problem. On the one hand, such produce is not sacred food, restricted for use of priests, for the dues [which belong to the priests and until separated render the entire mixture forbidden] have not yet been designated within the produce and set aside from it for their meals [the designation being required only when the farmer exercises rights of ownership]. On the other hand, the produce cannot be used as profane or common food, for it is capable of yielding offerings that stand under the claim of God. Untithed produce ... is subject to a special set of rules that take account of its ambiguous character." Thus when the farmer takes the view that the crop is his and exercises ownership over it, then the liability to separate tithes and not to use the produce until tithes are designated and separated is incurred. That is the point at which God responds to the Israelite farmer's will. How is that will made known, given effect? Actions that the farmer takes that impose liability for removal of tithes, e.g., processing the

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produce, indicating the plan to use it, thus M. 1:5: At what point after the harvest must tithes be removed from produce? (1) Cucumbers and gourds-after he removes the fuzz from them. But if he does not remove the fuzz, tithes need not be removed until he stacks them up. (2) Chatemelons-after he scalds them in order to remove the fuzz. But if he does not scald them, tithes need not be removed until he makes a store of melons. (3) Green vegetables which are normally tied in bunches-after he ties them. But if he does not tie them, tithes need not be removed until the vessel into which he places the picked greens is filled.

WHAT PRoDUCE

Is

SUBJECT TO TITHING

The first principle is, what is ownerless and thus not possessed by a particular farmer as his private property simply is not liable to tithing. The second (now familiar) one is, the obligation to tithe pertains once the crop has ripened. There are some interstitial problems, e.g., the status of land in Syria, which is neither the Land of Israel nor the land of the gentiles. If the crop is purchased prior to ripening, in Syria the crop is exempt. But some opinion holds that Israelite ownership of land-not merely the crop-in Syria is the prerequisite for liability to begin with. And that underscores the critical issue at hand: the intersection of Israel, the Land of Israel, and the produce: when an Israelite in the Land of Israel possesses Land, his right of possession, but not ownership, is underscored by the restrictions that govern his disposition of the produce of the Land. With regard to the obligations of sharing a portion of the crop with God's designated recipients, the Halakhah recognizes three classes of produce: [1] produce that is not edible and not subject to tithes; [2] produce that is edible and is subject to tithes but not yet tithed; and [3] produce that has been tithed. Food that man cultivates from the earth is subject to tithing, and whatever is food at some point in its development, even though not grown for food at a later point, is subject to tithing; whatever is food at the end of its development is subject to tithing at that point. Produce not subject to tithing is diverse. First comes produce that is not ordinarily deemed food, e.g., leaves of coriander sown for seed. Second is produce taken from the field before the harvest, e.g., shoots uprooted for transplanting. Third is produce ownership of which is

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THEOLOGICAL AFTERWORD TO THE MISHNAH-TOSEFTA MAASEROT

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transferred prior to liability, e.g., while it is inedible. Ripened produce therefore may not be sold to Israelites unlikely to tithe it. Finally, if the produce is processed in such a way that it is not available for use on the table, it is insufficiently processed to be subject to liability, e.g., M. 5:6: One who steeps grape pulp in water to form a beverage, and added a fixed measure of water, and then found the same measure of liquid in the tub after pressing the water from the pulp-the liquid is exempt from the removal of tithes.

WHEN

Is

THE AcT oF TITHING REQUIRED

The upshot is, untithed produce that is liable to tithing may not be eaten as a regular meal. That is to say, it may not be eaten in the manner of priests eating their rations or in the manner of commoners eating daily bread. But it may be eaten in a random or informal way. It may not serve the normal purpose of food that is sanctified to priests or of tithed food available for the use of commoners (Jaffee, p. 2). To be made suitable for ordinary, regular meals, the produce must be properly tithed; the sacred offerings must be designated and removed, leaving the produce available for the wish and will of the farmer. While produce in the field is not liable to tithing, the farmer by his actions may show that he wishes to convert possession to ownership; then the produce must be tithed. If in the field one pickles or boils or salts produce, he must tithe it; if he merely stores it for later transport, he need not do so. If he merely tests the produce, he has not processed it. That fine distinction is shown at M. 4: 1: One who squeezes the oil of olives onto his body is exempt from tithing. If he squeezed the oil and placed it in the palm of his hand, he is required to tithe. Such distinctions rest upon the foundation of decided law, principles established before the exegesis of the law commences. In different language M. 4:5 makes the same point: One who husks barley removes the husks from the kernels one by one, and eats without tithing. But if he husked a few kernels and placed them in his hand, he is required to tithe. What are the actions by which a householder takes over produce for his own use with the result that he therefore must tithe it? The farmer may use the produce between processing for storage and actual storage. Once the produce gets home, it must be tithed. Hence the status of the produce proves relative to the status of the one who possesses it. If he is in a permanent abode, he must tithe; others in the

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same place need not do so, thus M. 2:2: If they were sitting in a door~ way or stall, and the passerby said, "Take figs for yourselves," those who accept them eat the figs in the doorway or stall and are exempt from tithing. But the owner of the doorway or the owner of the stall is required to tithe. Thus while the tithes are substantively present in the produce, the liability to identifY them depends upon the status of the owner, and his status depends upon his circumstance, on the one side, and his intentionality, on the other. Since entry into the courtyard (the personal domain) of the farmer marks the point at which liability to tithe pertains, the Halakhah defines which areas constitute that domain. If the householder has exclusive possession, he is deemed to enjoy rights of ownership such that the produce has been formally claimed by him. That is to say, the act of storing the produce in one's own, protected space constitutes the state~ ment of possession. Then God's claim becomes active, e.g., at M. 3:5. But informal or shared space, e.g., watchtowers, field sheds, do not affect the produce as does the privately~owned courtyard. A rule of thumb would suggest: space in which the householder and his depen~ dents may freely carry on the Sabbath defines the area in which a claim to ownership through exclusive possession pertains. And there, as we see, God is concerned, just as, on the Sabbath, he also is con~ cemed, but with a different result. As usual, the Halakhah then identifies secondary, derivative, and interstitial problems for solution, e.g., M. 3:9, the status of produce grown in the courtyard itself. Such a prob~ lem emerges only upon the foundation of settled principles, such as are specified here. Produce is subject to tithing from the time that it ripens through the harvest and up to the point when it is carried into the courtyard, that is, into private property, or sold in the market (Jaffee, p. 3). So the Halakhah will sort out the cases of when produce subject to tithing but not yet tithed is meant as a snack or as a meal. That depends upon the intent of the farmer. If the person eating the food intends it as a snack, it is classified as such; if it is intended as a meal, it is classified as such and tithes must be removed. So the attitude of the owner dictates the status of the untithed but liable produce. Jaffee states the matter in this language: "The liability of a particular batch of pro~ duce to the removal of tithes is determined solely by what its owner intends to do with it." Actions reveal intentions. If a farmer in the field cooks food, he intends it for a meal; if he left produce in the field to ripen, not cooking it, the food is deemed a snack. But the Torah, for

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its part, may relieve a person of the liability to tithe, e.g., by assigning to him or her ownership of the produce; then God has relinquished his share. That would pertain to produce acquired by the poor in gleaning or to produce received by workers in the course of harvesting the crop: One who is granted eating privileges by the Torah is exempt from tithing what he eats, while one who is granted no eating privileges by the Torah is required to tithe what he eats. The basic Halakhic principle, corresponding to an aggadic counterpart, concerns not only Israel's relationship with God but also Israel's correspondence to God. In concrete terms the Halakhah realizes the theological position of the Pentateuchal account, which makes explicit that God and Israel relate through the Land. That is where the conflict of wills-the free will of Israelite man, the commanding voice of the God who created all things-works itself out. And the point of conflict focuses upon the conduct of Israel in the Land. The Halakhah accords to Israel possession, but not ownership of the Land, which God alone retains. God asserts his ownership when Israel proposes to exercise its rights of usufruct: when the tenant takes his share of the crop, he must also hand over to the Landowner (and to those designated by him to receive his share) the portion of the crop that owing. And until the tenant, in possession of the Land, does pay his rent, he may not utilize the crop as owners may freely do. Jaffee states the religious principle in this language: "A supernatural claim to the tithes is made upon produce grown by Israelites at the precise moment at which they wish to use it ... The farmer's appropriation of the produce offers an opportunity to explore issues involving the nature of ownership and the effects of human intentions in bringing out ownership. These reflections on the tension between the farmer's right to his produce and his duty to satisfY supernatural claims upon it before he eats it comprise the bulk of the tractate" (Jaffee, p. 13). The obligation to tithe represents God's limitation on rights of ownership of the Land. Israel possesses the Land, but God is the owner, in that God can evict Israel from the Land and has done so in the past, just as God evicted prior occupants. The principal religious issue of the Halakhah of Maaserot, therefore of the Halakhah of all of the tractates pertaining to God's share in the crops, is simple: the distinction between possession, which is conditional, and ownership, which is absolute. Israel possesses the Land, God owns it, and the Halakhah aims at establishing the relationship of Israel to God, through the use of the Land, as a relationship that is stipulative,

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a gift and not a given. In this regard, one must invoke the category of covenant, as the Written Torah does when speaking of the Land, and state very simply, the governing religious principle of Ma'aserot is, Israel's possession of the Land is subject to the conditions of the covenant, and Israel's rendering to God what God requires as his share of the produce forms a principal expression of Israel's relationship with God, which takes place not only in, but also through, the Land. It follows that the Halakhah rests upon the principle that, while Israel possesses it, God owns the Land, and the agricultural offerings that Israel sets aside for those designated by God as his scheduled castesthe priest, the poor, the support of Jerusalem, for example-represent God's share of the crops. God and man lay claim to the produce of the Land. Only when the produce is shown by the actions of the farmer to be valuable to the farmer does God's claim emerge: "Only after produce has ripened may we expect the farmer to use it in his own meals or sell it for others for use in theirs. Thus God's claim to it is first provoked ... from that point onward" (Jaffee, p. 4). That principle is expressed in the law that produce that is ownerless is not liable to tithing, e.g., produce of the Seventh Year and the like. In this connection Jaffee further states (p. 3): Produce is liable to the removal of tithes either at the time it is intended for use as a meal or at the time it is claimed as private property, whichever happens to come first .... In both instances a human being has appropriated for his personal benefit produce against which God has a claim. God's claim is violated ... whenever an Israelite farmer or householder prepares to use untithed produce as if he had full rights regarding its disposition. Whether he prepares it for a meal out in the field or brings raw food into his home for the use of his family, he has claimed rights of ownership that in fact are still God's. Accordingly, the Israelite must give to God his due before exercising his own property rights. The farmer may use the produce as his own only when he has acknowledged God's claim, not eating the produce as if it were his own, but only after setting aside God's share. If the farmer prepares to make a meal of the produce in the field or claims to be sole owner, he loses his right to eat the food until he tithes (Jaffee, p. 4). Meeting God's claim, the farmer may then use the produce. The system of obligatory tithing then is gets underway when the Israelite proposes to exercise his will over his domain and its produce. Every other party to the system then responds to the intentionality of

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the farmer. As Jaffee points out, priests cannot claim their dues whenever they choose, and God does not take an active role in determining when the produce mu~t be tithed (Jaffee, p. 4). Human actions that reveal human intentions provoke God: when the farmer indicates that he plans to dispose of the fruit, God wants his share. Jaffee expresses this matter in the following language (p. 5): The fundamental theological datum of Maaserot ... is that God acts and wills in response to human intentions. God's invisible action can be discerned by carefully studying the actions of human beings .... the Halakhah of Maaserot locates the play of God's power ... in an invisible realm immune from the hazards of history ... the realm of human appetite and intentions ... God ... acts and wills .... only in reaction to the action and intention of his Israelite partner on the Land ... Those who impose upon themselves the task of reconstructing the human and social fabric of Israelite life make effective the holiness of the Land and make real the claims of its God.

As we see, the Halakhah spins out the implications of the distinction between possession and ownership. When the farmer who possesses the Land proposes to exercise the rights of ownership of the Land, specifically by making his own the produce of the Land, then God enters his rights of ownership and expects his share of the crop. Israel possesses the Land but does not own it, God owns it, and the relationship between Israel and God is worked out in that distinction between what amounts to usufruct and what represents absolute domain. Just as, in connection with Shebi'it and 'Erubin, the Halakhah underscores the ambiguous character of Israel's possession of its own domain, in the one case asserting God's ownership, in the other insisting upon the householder's relinquishing his control of his domain, so here too the same transaction characterizes Israel's relationship with God. Israel holds with open arms what God has given, thus the distinction between possession and ownership. And much of the Halakhah that realizes Israel's relationship with God forms a vast exegetical construction of that principle. In attitude and emotion, Israel is like God, in the concrete case, the Israelite farmer and God see matters in exactly the same way when it comes to assessing the value and use of the Land and its crops. Both parties-Israel and God-value the Land. Both lay claim to it, and both affect and are affected by what takes place on it. But while in Scripture, possession of the Land forms a critical component of the

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history of Israel, in the Oral Torah possession of the Land defines how God and Israel relate through the natural world, through creation. How is it that Israel and God relate in so concrete and specific a situation as is defined by the course of nature, the ripening of the crops? It is because, the Halakhah takes for granted, God and Israel bear the same attitudes, feel the same emotions, form corresponding intentions. In the Written Torah (encompassing, to be sure, the Halakhah that sages amplify in the Mishnah) the Land sets the stage for the story of Israel as a public body, Israel as historical actor. In the Oral Torah, the Land matters for other reasons altogether, the course of nature taking the place of the unfolding of history as the medium for relating the story of God's and Israel's relationship. What the Halakhah then bears as its implicit but ubiquitous message concerns the consubstantiality of Israel's and God's attitudes and emotions. God and man are alike not only in intellect~the same rules of reasoning applying to both~but also, and especially, in attitude and emotion, in virtue in the classic sense. God commands Israel to love him, therefore God values and prizes the emotion of love. Man is commanded to love God. But that is not the only emotion shared by man and God. In the biblical biography of God, the tragic hero, God, will despair, love, hope, feel disappointment or exultation. The biblical record of God's feelings and God's will concerning the feelings of humanity~wanting human love, for example~leaves no room for doubt. In this matter, the Rabbinic literature is explicit when it says, "the merciful God wants the heart." God commands that humanity love God with full heart, soul, mind and might, because God feels and values that same emotion. God's heart, not only his rationality, corresponds to man's. In that context we take up the Halakhic position outlined in Ma'aserot. When the farmer wants the crop, so too does God. When the householder takes the view that the crop is worthwhile, God responds to the attitude of the farmer by forming the same opinion. The theological anthropology that brings God and the householder into the same continuum prepares the way for understanding what makes the entire Mishnaic system work. That brings us to the matter of intentionality, the formation of emotions that the Halakhah treats as critical. "Intention" stands for attitude, and there is no distinguishing attitude from emotion. For the discussion on intention works out several theories concerning not God and God's relationship to humanity but the nature of the human will, which~on sound Scriptural foundations~sages take for granted

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corresponds to the divine will. 1 Man is defined not only as sentient but also as a volitional being, who can will with effect, unlike beasts and, as a matter of fact, angels (who do not, in fact, figure in the Mishnah at all). On the one side, there is no consideration or will or attitude of animals, for these are null. On the other side, will and attitude of angels, where these are represented in later documents, are totally subservient to God's wishes. Only man, in the person of the farmer, possesses and also exercises the power of intentionality. And man's power of intentionality is consubstantial with God's. And it is the power that intentionality possesses that forms the central consideration. Because a human being forms an intention, consequences follow, whether or not given material expression in gesture or even in speech. The Mishnah and the law flowing from it impute extraordinary power to the will and intentionality of man. How in the Halakhah does this bear practical consequences? The attitude of the farmer toward the crop affects the status of the crop. It classifies an otherwise-unclassified substance. It changes the standing of an alreadyclassified beast. It shifts the status of a pile of grain, without any physical action whatsoever, from one category to another. Not only so, but the attitude or will of a farmer can override the effects of the natural world, e.g., keeping in the status of what is dry and so insusceptible to cultic uncleanness a pile of grain that in fact has been rained upon and wet down. An immaterial reality, shaped and reformed by the householder's attitude and plan, overrides the material effect of a rainstorm. The Halakhah then embodies the conviction that God's and man's wishes and intentionality correspond, and that same view is expressed in abstract principles of proper feelings as well, explicitly stated in this language: He would say, "Make his wishes into your own wishes, so that he will make your wishes into his wishes. "Put aside your wishes on account of his wishes, so that he will put aside the wishes of other people in favor of your wishes." TRACTATE ABoT

2:4

1 In identifYing the issue of divine justice as critical to the theology of the Oral Torah, I point to that dimension of God's relationship to man of which man is able by nature to take the measure: the insistence upon reasoned judgment, upon the rule of measure for measure, as that point on which man and God must concur.

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He would say, "Anyone from whom people take pleasure--the Omnipresent takes pleasure. "And anyone from whom people do not take pleasure, the Omnipresent does not take pleasure." TRAcTATE ABoT 3:10

The premise of the statement at hand is that God's wishes define the model for man's, and man's attitudes find confirmation in God's. Now, where does the heart learn its lessons, if not in relationship to God? "Make his wishes yours, so that he will make your wishes his." Applied to the relationships between human beings, this inner discipline of the emotional life will yield exactly those virtues of conciliation and selfabnegation, humility and generosity of spirit, that the framers of tractate Abot spell out in one example after another. Imputing to Heaven exactly those responses felt on earth, e.g., "Anyone from whom people take pleasure, God takes pleasure" (Abot 3: 10), makes the point at the most general level. And, when we examine the details of the Halakhah, we see how in concrete terms Israel's attitudes and intentions are supposed to correspond with God's. That is why what Israel wants attracts God's attention and provokes God's desire. What God very much does not desire is for Israel to assume rights of unconditional ownership-the rights to do whatever it wants-to what is merely possessed on strict conditions.

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PART EIGHT

MISHNAH-TOSEFTA MAASER SHENI PETER

J.

HAAS

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PREFACE

In the following study, I translate and explain Tractate Maaser Sheni ("second tithe") in Mishnah (hereafter M.) and its supplement, Tosefta (T.). 1 Second tithe is an agricultural offering which Israelite farmers must separate from their annual harvest, bring to Jerusalem and eat there. The framers of M. derive their notion of this tithe from Deut. 14:22-27. According to Scripture, the farmer may either carry the produce itself to the holy city or he may instead bring its value in money. He then uses this money in Jerusalem to buy food to be eaten in place of the original produce. M.'s concern is to determine how the farmer is to handle the tithe so that it is preserved until properly eaten. That is, the farmer must take care not to lose, destroy or misuse any portion of produce in the status of second tithe. If he sells the produce, he must be sure to receive in exchange its full value in coin. This is to insure that he will buy the proper amount of food in Jerusalem. The point of M. is that, in either case, the total value of the tithe ultimately must be eaten. The purpose of my study is to discover what the authorities who formulated the laws meant to say by them. As a first step, I offer a fresh translation of the tractate in both M. and T. In my translation, I pay close attention to the syntax and patterned language of the original Hebrew. I then allow these formal traits to guide my reading and interpretation of the law's substance. Through attention to the law's formal characteristics, as well as to its contents, I claim to adduce the point of law the formulator intended to make. Following this analysis, I step back and identifY the general themes or topics which the redactor discusses in the tractate as a whole. This I do by noting the sequence of units established by the redactor and adducing the logic by which these have been arranged. The final stage in my study is to describe the central issue, or problematic, with which the tractate deals. Although

1 My characterization of Tosefta as a supplement to Mishnah is based on my own work with these two tractates. The same conclusion has emerged from J. Neusner's literary analysis of the relationship between M. and T. in Purities XXI. His results are summarized in "Redaction, Formulation and Form: The Case of Mishnah," in ]Q_R 70:3 (1980), pp. 14-16.

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these are the last two steps in my study, I present the results in the Introduction so that the reader is oriented to the law as a whole before turning to the details of each pericope. Through my study of the tractate, I hope to contribute to the larger goal of describing the world view of early rabbinic Judaism. My contention is that the creation of Mishnah as a whole at the end of the second century represents an attempt on the part of its authorities to come to terms both with the destruction of the cult in 70 and with the end of all hope of reestablishing it when the Bar Kokhba revolt failed. My interest is in the extent to which the larger program of Mishnah's authorities is reflected in their discussion of second tithe. Second tithe is a particularly appropriate topic for this purpose, since it concerns produce which the farmer grows and controls, and yet of which he must somehow dispose in accordance with the laws of holiness. By investigating how M. wants such obligations fulfilled, we gain insight into the kind of society M.'s authorities envisioned for Israel. It is with profound gratitude that I acknowledge the support and help of others who have made this work possible. Foremost among these is my teacher Jacob Neusner. He patiently guided me through this work page by page as it was being prepared. His insightful comments and suggestions prodded me to surpass myself. I owe him an immense debt for all that he has taught me over the last three years. In addition I would like to express my gratitude to the members of the Religious Studies Department at Brown University, each of whom has contributed to my intellectual growth. I mention in particular Prof. Wendell S. Dietrich, Ernest S. Frerichs (Dean of the Graduate School), Horst R. Moehring, John P. Reeder, Jr., Sumner B. Twiss, Jr., J. Giles Milhaven, R. S. Sarason (now of Hebrew Union College-Jewish Institute of Religion), David Goodblatt (of Haifa University) and Dean McBride (of Northwestern University). In addition to their other duties, Dean Frerichs and David Goodblatt agreed to serve as readers for my dissertation. I am thankful for their time and energy. Lois Atwood and Evelyn Palombo, administrative assistants in the Department of Religious Studies did much to make my stay at Brown a pleasant experience. The members of Prof. Neusner's graduate seminar patiently sat through successive rewritings of this manuscript. Leonard Gordon, Abraham Havivi, Martin Jaffee, Irving Mandelbaum and Alan Peck each offered comments and suggestions which contributed immeasurably to this work. I would like to thank in particular Alan Peck, who generously helped me in preparing earlier drafts of this study, and

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Martin Jaffee, who reviewed the entire manuscript and suggested many ways it could be improved. Their insight and friendship has been invaluable. They certainly bear no responsibility for any deficiency in this work. Above all, this dissertation is a tribute to my wife, Lee. Despite the demands of raising our family, she found time and energy to help me with typing involved in producing this study. Words cannot express the gratitude I feel for the support, moral and otherwise, that she gave me during these years of graduate study. In dedicating this work to her, I only give to her a small part of what she has given to me. Peter Jerome Haas 20 June, 1980 6 Tammuz, 5740

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MISHNAH-TOSEITA MAASER SHENI INTRODUCTION

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INTRODUCTION

I.

THE SUBJECT OF THE TRACTATE

Mishnah Tractate Maaser Sheni deals with second tithe. This tithe is one of the agricultural gifts which Israelite farmers are obligated to set aside from their annual harvest. 1 Mishnah's authorities identifY it with the agricultural offering mentioned in Deut. 14:22-26 (cited below). There Scripture describes an agricultural levy which Israelite farmers are to set aside each year and eat in Jerusalem. 2 Mishnah Maaser Sheni, for its part, spells out how this tithe is to be handled until it is properly eaten in the holy city. As I shall explain, the tractate's particular concern is to protect the tithe from loss or misuse. Let us begin our discussion by considering the relevant passage from Scripture. You shall tithe all the yield of your seed, which comes forth from the field year by year. And before the Lord your God, in the place which he will choose, to make his name to dwell there, you shall eat the tithe of your grain, of your wine, and of your oil, and the firstling of your herd and flock; that you may learn to fear the Lord your God always. And if the way is too long for you, so that you are not able to bring the tithe, when the Lord your God blesses you, because the place is too

1 Besides second tithe, Israelite farmers are to separate two other offerings from the completed harvest. The first of these, heave-offering, belongs to the priests. It amounts to approximately two percent of the crop's total yield. A full ten percent of what remains, the so-called first tithe, is given to the Levites. From this produce the Levites themselves owe a portion to the priests. This is termed heave-offering of the tithe. The farmer owes in addition a second levy of ten percent. This is separated from the produce that remains after heave-offering and first tithe have been taken out. It is this levy which Mishnah calls second tithe. M.'s system of agricultural gifts is explained in detail in R. S. Sarason, A History qf the Mishnaic Laws qf Agriculture: A Study qf Tractate Demai (Leiden, 1979), pp. 3-8. 2 The notion that a set proportion of the farmer's crop is to be set aside for the support of the cult or its personnel is a common one in the ancient Near East. Israelite society in Biblical times naturally adopted this same system for the financial upkeep of its own cult. The best general introduction to Israel's system of Temple taxes is 0. Eissfeldt, Erstlinge und Zehten im Alten Testament, a precis of which appears In RGG 3 . See also M. Weinfeld, "Tithes," EJ 15:1156-1162.

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far from you, which the Lord your God chooses, to set his name there, then you shall turn it into money, and bind up the money in your hand and go to the place which the Lord your God chooses, and spend the money for whatever you desire, oxen or sheep, or wine or strong drink, whatever your appetite craves; and you shall eat there before the Lord your God and rejoice, you and your household.

According to Deuteronomy, each year Israelite farmers must set aside one-tenth of their harvest. This tithe is to be taken to Israel's central sanctuary and eaten there. 3 The author of Deuteronomy takes account of the burden this requirement places on farmers who live far from the central shrine. To facilitate their pilgrimage, the Deuteronomist allows these farmers to sell the produce which they have designated as second tithe and in its place to bring money to the city. This money is then used in the city to purchase food which is eaten in place of the original produce. Scripture goes on to say that the tithe, either the original produce or what has been brought to replace it, is "eaten before the Lord." While the meaning of this phrase is unclear, it does indicate that the second tithe is to be eaten in the central sanctuary. 4 For Mishnah, as for Scripture, the common folk of Israel are responsible for designating produce to serve as second tithe, bringing this tithe to Jerusalem and eating it there. What is of special interest to Mishnah's authorities is that this tithe is set aside to be eaten only in Israel's holy city. This fact means, in their view, that it is holy. It is for this rea-

son that Mishnah is interested in second tithe. 5 Since the produce is holy, it must not be treated in the way the farmer treats unconsecrated

3 Although Scripture's tithe is separated annually, it is eaten in Jerusalem by its owner only two out of every three years. Each third year, according to Deut. 14:27-29, the tithe is brought to the nearest city and there distributed to the unemployed Levites, the widows and the orphans as charity. Mishnah adopts the same calendar for its own tithe. Second tithe is separated during the first, second, fourth and fifth years of the Sabbatical cycle. The tithe set aside during the third and sixth for the poor is termed poorman's tithe. No tithes were separated during the seventh year since all agricultural labor was prohibited during that year. 4 Modern exegetes have interpreted this passage to mean that the food must be eaten in some sort of sacred meal. See, for example, S. R. Driver, "Deuteronomy," in the ICC (New York, 1895); and H. H. Guthrie, "Tithe," in !DB, p. 634 (Nashville, 1962). M. differs in that it allows the farmer to eat second tithe anywhere injerusalem and not only in the Temple compound. Nonetheless, M. holds that once the Temple was destroyed, second tithe no longer could be eaten. See, for example, M. I :6-7, T. 3:13. 5 Mishnah's authorities are interested in agricultural gifts in the first place because these are deemed to be holy. This is shown by the fact that the Order of Agriculture

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produce, which is available for his everyday use in any place. Rather, M.'s authorities want to establish special restrictions to govern precisely how produce in this consecrated status may be used. The tractate before us spells out these restrictions. Mishnah's authorities want to insure that the farmer who designates produce as second tithe does not lose or destroy any part of it through carelessness. The full amount of what he sets aside must be eaten in Jerusalem. The tractate develops this concern in two ways. The first is to define the specific uses the farmer may make of the produce. He must eat the produce and not use it in some other way, such as an unguent. The second, and more important concern, is that the farmer receive the full value of his consecrated produce when he sells it. If he receives an insufficient value in coin, he will end up eating in Jerusalem less second tithe than he originally separated. If he sells two dinars' worth of consecrated produce for only one and one-half dinars in coin, for example, only three quarters of the value of the produce is transferred to the money. The remaining value of the second tithe is still in the produce, which now belongs to the buyer. This creates two problems. On the one hand, the farmer will not buy in Jerusalem the proper value of produce to be eaten as second tithe. On the other hand, the buyer has produce which, unknown to him, is still in a consecrated status. He will use this produce as though it were unconsecrated, thus violating the sanctity of second tithe. It is important, therefore, that the selling price of the consecrated produce accurately reflect its value, so that the full value of second tithe is passed to the coins. Now that the principal concerns of the tractate are clear, let us explain how it is constructed. As we shall see, it unfolds in three units. The first describes restrictions which apply to the use of produce and coins in the status of second tithe. The second unit takes up the topic of greatest concern to M. 's authorities, permissible uses of consecrated produce and coins. This unit is concerned in particular with exploring

has tractates on all those gifts which are assumed to be in a consecrated status. Thus we have tractates on tithing in general (maaserot), heave-offering (ternmot), second tithe, dough-offering (hallah), and firstfruits (bikkurim). There is no tractate dealing-with first tithe, however. This is so because first tithe is not a consecrated offering, but simply a secular gift owed to the Levites. Mishnah's concept of holiness as it applies to agricultural gifts is the subject of a study by R. S. Sarason, "Mishnah and Scripture: Preliminary Observations on the Law of Tithing in Seder Zera'im," in W. S. Green, ed., Approaches to Ancient Judaism II (Missoula, 1980).

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how the farmer transfers the status of second tithe from one item to another, such that none of its value is lost. The last unit takes up topics of secondary concern. It first considers produce which is in a status analogous to that of second tithe, namely fruit growing on a tree or vine during its fourth year of growth. This fruit is comparable to second tithe in that it is both holy and eaten by the farmer himself in Jerusalem (Lev. 19:23-25). The tractate concludes with a block of material which deals with the law of removal (Deut. 14:27-29). This law declares that every three years the farmer must properly distribute all tithes which he has separated but not given to its appropriate recipients. If he cannot properly use the produce, he must destroy it. This is important as regards second tithe since after the Temple's destruction, second tithe could not be eaten. With the structure of the tractate in mind, let us turn to an outline of each of its parts. This will allow us to see how the individual pericopae of the tractate have been organized into the essays described above. I. Improper Disposition qf Second Tithe (1: 1-1: 7) A Improper use qf consecrated food (1: l-2F) 1: 1 Produce in the status of second tithe may not be sold, given as a pledge or used as a counterweight, but it may be given as a gift. 1:2A-F These same rules apply to tithe of cattle. B. Improper use qf consecrated coins (1:2G-7) The farmer may not consecrate coins which are defaced, 1:2G out of circulation or inaccessible. 1:3-4 The farmer may not purchase with consecrated money inedible items such as hides or jugs unless these are an intrinsic part of the food they accompany. 1:SA-C The farmer may not purchase edible items that are not foods, such as water or salt. 1:SD-6 The farmer may not purchase foods outside Jerusalem. 1:7 The farmer may not purchase items which he cannot eat, drink nor use as a lotion.

The redactor opens the tractate with a series of restrictions which apply to produce or coins in the status of second tithe. In this way, he indicates that second tithe is unlike unconsecrated produce and thus introduces us to the topic of the tractate as a whole. The unit first deals with produce which has been declared as second tithe (A) and then

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considers money which is brought to Jerusalem in place of that produce (B). This second unit begins with a definition of what constitutes proper money (M. l :2G) and goes on to describe how this money is to be used (M. l :3~6). Two interpolations have been added to this material. M. l :2A~F, which deals with tithe of cattle, has nothing to do with second tithe. It is placed after M. l: l apparently because it applies the same rules to another agricultural levy. The final pericope, M. 1:7, repeats the point already made at M. 1:3~4. It is included in the tractate in order to form a transition to the material which follows in Unit II.

II. Proper Disposition qf Second Tithe (2: 1~4: 12) A. Proper use qf consecrated food (2: 1~4) 2: 1A~H Consecrated food must be used in its normal way. 2: II~P If consecrated food and unconsecrated food are mixed together, the value of the consecrated food is determined by its proportion in the mixture. 2:2 Simeon and sages dispute over the proper use of oil. 2:3~4 An appendix to the foregoing in which the Houses dispute the proper use of fenugreek and vetches. B. Proper traniference qf the status qf second tithe to and from coins (2:5~ 2:9) 1. From coins to coins (2:5~2:9) 2:5 Consecrated and unconsecrated coins mixed together: coins randomly picked from the batch are deemed consecrated in place of the original money. 2:6 Consecrated and unconsecrated coins mixed together: the status of the consecrated coins is transferred to a fresh batch of coins. 2:7 Houses dispute: may the farmer exchange silver coins for gold coins? 2:8 Transfer of status outside Jerusalem. 2:9 Transfer of status inside Jerusalem. 2. From coins to produce (2:10~3:4) 2:10 Consecrated coins may be spent a little at a time. 3:1~2 The farmer may not purchase as second tithe produce in the status of heave-offering, since this is already in a consecrated status. The status of second tithe may be transferred from 3:3 one person's coins to another person's produce.

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3:4

The status of second tithe may be transferred from a farmer's coins to his own produce. 3. From produce to coins (3:5-4:8) a. After the produce has been in Jerusalem (3:5-3: 13) 3:5 Produce brought into Jerusalem no longer may be sold. 3:6 Houses' dispute: does this rule apply to produce which is unprocessed? 3:7-8 Appendix on determining the boundary ofJerusalem. Houses' dispute: does this rule apply to consecrated 3:9 produce rendered unclean? 3: 10-11 The application of this rule to food purchased for use as second tithe and which becomes unclean. 3:12-13 he purchase in Jerusalem of inedible items. b. Bifore the produce has been in Jerusalem (4: 1-8) 4: 1 Produce is sold at local market prices. 4:2A-D Produce is sold at the lowest prevailing price. 4:2E-G Produce, the price of which is unknown, is auctioned. 4:3 An added fifth of the food's value is paid when the farmer transfers the status of second tithe to his own cams. 4:4-5 An appendix on how the added fifth legally may be avoided. 4:6 What if the agreed-upon selling price is different from the produce's market value? 4:7 Does selling consecrated produce require an oral declaration? 4:8 Coins are spent at the current value they have at the time of sale. c. Produce and coins the status if which is in doubt (4:8-12) 4:9 Found coins are deemed unconsecrated unless there is specific evidence to the contrary. 4: 10-11 Found produce is deemed unconsecrated unless its container is marked in a specific way. 4:12 Found coins are deemed consecrated only if they are found in a place where consecrated coins are known to have been. This unit is a fine piece of redactional work, having a clear beginning, middle and end. It opens, appropriately, with a discussion of consecrated produce (A). This introduces the next logical topic, and the one

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of major concern, namely coins which are consecrated in place of that produce (B). The concluding section (C) deals with doubts, a typical redactional technique for ending a major thematic unit. The redactor has arranged his materials, then, in such a way that his discussion unfolds in a logical manner. Let us now consider each of these subunits in turn. A makes a simple point. Consecrated food must be used in its normal way. Since this section is short, and deals with its subject in a cursory manner, it is clearly of only minor concern to the redactor. He has placed it here in order to introduce his real interest, which is taken up in B. B considers the transfer of the status of second tithe from one object to another. Its point is that, as we said earlier, second tithe must suffer no loss in value on account of the transaction. The unit is elegandy arranged, consisting of three essays, each dealing with one of the transactions possible with consecrated goods. These are the exchange of consecrated coins for other coins (B/1), second, the use of these coins in Jerusalem to buy produce (B/2), and third, the sale of consecrated produce for coins (B/3). This is not the order in which the farmer would effect the transactions, since the sale of produce (B/3) is logically prior to the other transactions, in which coins are deconsecrated. By arranging the material in this order, however, the redactor ends the unit with the most substantive of the three essays. This essay itself is divided into two subunits, each dealing with one of the two possible locations of the produce when it is sold: inside or outside Jerusalem. By so dividing the material, the redactor deals first with situations in which second tithe may not be sold at all (3a) and, then, with the laws governing the sale in cases when it is allowed (3b). C closes the unit, as we said, by considering cases of doubt. The essay deals first with coins, then with produce and concludes by returning our attention to coins. It is organized, then, in the pattern of a-ha, a fine redactional flourish ending the tractate's major essay. III. Special Topics (5: 1-15) A. Produce qf a planting's fourth year (5: 1-5) 5:1 Fruit of the fourth year must either be eaten in Jerusalem or must be sold, as is true of second tithe. 5:2 Originally fruit of the fourth year was sold only if it grew further than a three day's journey from Jerusalem. Nowadays, it is sold irregardless of where it grows.

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5:3

Houses' dispute: Do other laws which apply to second tithe apply as well to fruit of the fourth year? 5:4-5 How the price of such fruit is established in special cases. B. 7he law qf removal (5:6-15) All agricultural gifts must be distributed by Passover 5:6 of the fourth and seventh years or they must be destroyed. 5:7 Houses' dispute: How is the removal carried out nowadays? 5:8 Are crops still in the field liable to the law of removal? 5:9 Produce may be distributed through an oral declaration. 5: l 0-14 The text of the confession (Deut. 26: 13-15) is the subject of a midrashic interpretation, which finds in it reference to the rabbinic laws of agricultural gifts. 5: 15 A catalog of five legal actions of Y ohanan, the High Priest. The first of these is his abolition of the recitation of the confession. With his examination of second tithe completed, the redactor turns to two related topics. The first, A, concerns produce growing on a tree or vines in its fourth year after planting. Such produce is like second tithe in that it is both holy and is eaten by the farmer in Jerusalem. M. declares that the same considerations which apply to the handling of second tithe apply as well to such produce. The second block of material, B. deals with the final disposition of food the farmer has consecrated but which he is unable to use. The produce, in M.'s view, must be destroyed. This discussion is especially suitable as the conclusion to our tractate. This is because after Jerusalem's destruction, second tithe could not be eaten. This concluding material, then, explains how second tithe is to be handled in the period after 70 C.E.

II.

METHOD OF EXEGESIS

My analysis of Mishnah Maaser Sheni begins with a fresh translation of the tractate. The purpose of the translation is to enable the reader to understand the exegetical problems posed by each pericope's content, formulation and syntax. My translation differs from earlier ones,

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then, primarily in that it attempts faithfully to replicate the syntax and patterned language of the original Hebrew. To make formal analysis possible, I divide each pericope into its smallest literary units, labeling them with the letters of the alphabet. In this way, I am able to discover the structure of each pericope. At the same time. I endeavor to render the Hebrew into intelligible English so that its meaning is clear. In order to do this, and yet preserve the literary character of the original, I have found it necessary to add words or phrases not supplied in the Hebrew but clearly assumed by the author. I have placed such added language in square brackets. The reader is thus made aware of the original wording of the Hebrew while at the same time having before him a readable text. I have systematically checked my Hebrew text against manuscript variants, calling the reader's attention to these variant readings which are important for the interpretation of the pericope. I have also checked each pericope against parallels in the talmudic literature. For the reader's convenience, I include with each translation a list of citations noting the occurrence of the same phrases or sentences elsewhere in Mishnah, the Tosefta or in the Talmuds. The exegesis is meant to describe the point of law which lies at the heart of each pericope or small unit of tradition. I want to know, in each case, what meaning the formulator himself intended his words to convey. To accomplish this purpose, I begin by considering the unit's formal traits. This is so because it is by means of their formulation of the law that the authorities of M. draw our attention to the issues which primarily concern them. This kind of analysis is possible because of the highly patterned language used in M. By choosing to express their point in one pattern rather than another, the formulators indicate where their interest in each pericope lies. They may, for example, present two balanced rules which contain matching, but opposed, apodoses. By so framing matters, the formulator draws our attention to the contrast between the apodoses and thus to the issues which produce the contrast. In my exegesis, I identify this critical tension and explain the logical basis for the two opposing rules. A second common literary technique used by M.'s formulators is the dispute. This consists of a superscription followed by opposing apodoses or a rule followed by an opposing gloss. The point of the pericope emerges in each case through the contrast between the two opinions. From the positions articulated in the dispute, we can infer the premises that both parties hold in common as well as the gray area which the common premises produce and which gives occasion for the dispute. As before,

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my exegesis identifies the common premises and describes the logic which stands behind each opinion. A third formal trait is the list, a catalog of different items or actions grouped together because, in the formulator's mind, they share some common trait. The problem is to locate this unstated characteristic so as to identifY how the formulator interprets the diverse facts before him. My job as exegete is to discover that common trait. In each case, then, my interpretation of the pericope is guided by its formal traits. These lead me to the central concern of each unit and thus to the point of law the formulator himself wants to articulate. Once I have identified the main point of concern in each pericope, I turn to other rules in the pericope, asking whether these serve the pericope's main point or are only tangentially related to it, either introducing the pericope or illustrating its material. I thus am able to give an account of the full structure of each pericope and to describe the logic by which it has been put together. In this way, I claim to make clear the full meaning of each unit of material. Having described the meaning of each pericope, I step back and ask about the point of the tractate as a whole. To do this, I begin by considering how each pericope is thematically related to the material around it. This analysis allows me to identifY thematic units within the tractate. The results of this analysis are presented in the introductions to each of the tractate's chapters as delineated in the printed editions. With the basic thematic units identified, I describe how these have been organized so as to form the tractate as a whole. From this I discover the central issues or concerns which motivate the redactor to put together our particular tractate. The results of this effort are found in Part I of this introduction. Although my study has its own particular purpose and method, as I have explained, I regularly draw upon the work of classical exegetes to the tractate. I consult these earlier commentaries both for help in understanding difficult words and phrases and for a sense of the logical possibilities inherent in Mishnah. Their work is relevant to mine because these earlier writers are interested, as am I, in discovering the logic behind M.'s law and in articulating that logic. At the same time, the use I make of classical exegesis is limited because of the different purposes of our commentaries. My purpose, as I said, is to understand what M.'s laws meant to the people who created them. The task classical commentators set for themselves, to the contrary, is to show how M.'s rules fit in and complement rabbinic law in general. This is so

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because they conceive of rabbinic law as an all-encompassing and consistent whole. Their work, then, is one of harmonization and synthesis, in which M.'s laws are understood and interpreted in the context of the full corpus of rabbinic law. Thus, while I can draw on classical exegetes for help in understanding points of language and logic, I often disagree with them as regards the context and meaning of that law. In my commentary I have taken care to draw the reader's attention to points at which I depart from classical interpretations of a pericope, and to give my reasons for rejecting the classical view in favor of my own interpretation. It remains for me to discuss my translation and exegesis of Tosefta. I have included this document in my study because of its close relationship, substantive and formal, to M. As my exegesis of Tosefta shows, this document is closely linked to M., relying on M. both for its agendum of issues and for its redactional order. It frequendy cites M. direcdy or supplements what M. has to say with further material. It also complements M.'s discussions by introducing new materials. Tosefta thus explores possibilities left open by M. and broadens M.'s own investigations into points of law. This it does through use of the same formalized language and patterned syntax of M. For these reasons, I provide a translation and exegesis of it along with my commentary to M. For my translation and exegesis ofT. I use essentially the same procedure as I do for M. (Tosefta Maaser Sheni appears here in English for the first time.) The principal difference is that my primary aim as regards T. is to make clear its relationship to M. To this end, I underline in my translation all passages in which T. direcdy cites M. I also provide the reference to M. in square brackets following the translation. This allows the reader quickly to see the points of contact between M. and T. The purpose of my commentary is to understand in what way T. qualifies or expands Mishnah's law. My translation of M. depends primarily on the text published by Banach Albeck and Banach Y alan. 6 This text has been checked against the variant readings listed in the critical edition of Mishnah Zera'im edited by N. Sacks. 7 Important variant readings have been indicated

6 The Six Orders qf Mishnah. I. The Order qf Zeracim [Heb.) (Jerusalem and Tel Aviv: Bialik Institute and Devir, 1957), pp. 241-268. 7 1he Mishnah with Variant Readings, Order Zeracim (Jerusalem: Makhon HaTalmud Ha Yisraeli HaShalem, 1972-75), II., pp. 247-313.

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in my translation by the use of parentheses. I have also made regular use of English translations of M., primarily those of H. Danby8 and M. H. Segal. 9 For T., I rely on the text published by S. Lieberman. 10 He includes in his edition variant readings and, occasionally, his own suggested emendations to the text. Where these are important for understanding T., I include these in my translation in parentheses. I also cite other relevant emendations, such as those of Samson of Sens and GRA. 11

The Mishnah (London: Oxford University Press, 1933), pp. 73-82. The Babylonian Talmud: Seder Zerlfim, II. Maaser Sheni (London: Soncino Press, 1948), pp. 279-311. 10 The Tosrifla. I. Order Zera'im (New York: The Jewish Theological Seminary of America, 1955), pp. 243-274. 11 The commentaries of both Sens and GRA can be found in the Romm edition of the Babylonian Talmud. 8

9

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ABBREVIATIONS AND BIBLIOGRAPHY

Albeck Arak. Aruch A.Z.

b.

Bacher B.B. Beer-Holtzmann Bek. Bert Bes. Bik. Blackman B.M. B.Q B.R. Bunte Celsus Columella D Dalman, Arbeit

Danby Dem. Deut. Dorland

E Ed. EJ Er. Ex. Feliks Gereboff

Hanoch Albeck, Sifah Sidre, Misnah, Seder Zera'im (Jerusalem and Tel Aviv, 1957) 'Arakin Alexander Kohut, ed., Aruch Completum, 8 vols. (Vienna 1878-92; second edition, 1926), and Supplementary Volume, ed., Samuel Krauss et al. (Vienna, 193 7) 'Abodah Zarah Babli, Babylonian Talmud; ben, "son of," as in "Simeon b. Gamaliel" Wilhelm Bacher, Die Agada der Tannaiten (Strassling, 1903) Baba' Batra' G. Beer and 0. Holtzmann, eds., Die Mischna: Text, iiberset::;ung und ausfiihrliche Erkliirung, I. 7-8 Seder Zera'im: Maaserotl Mauser Sheni by Wolfgang Bunte (Berlin, 1962) Bekhorot Obadiah b. Abraham of Bertinoro, d.c. 1500, Commentary to Mishnah, in Romm edition of Mishnah Be~ah

Bikkurim Mishnayoth, I. Order Zeraim. Pointed Hebrew text, English translation, introductions, notes ... by Philip Blackman (London, 1955; second edition, New York, 1964) Baba' Mesi'a' Baba' Qamma' Julius Theodor and Chanoch Albeck, eds. Midrasch Bereschit Rabbah (Berlin, 1903-1936) See Beer-Holtzmann Aulus Cornelius Celsus. De Medicina, W. G. Spencer, trans. (Cambridge, MA, 1935-1938) Columella. De Re Rustica, trans. H. B. Ash, et al. (London, 1941-1955) Tosefta, editio princeps (Venice, 1521) Gustav Dalman, Arbeit und Sitte in Paliistina, 8 vols. (Gutersloh, 19281942) The Mishnah, trans. Herbert Danby (London, 1933) Dem'ai Deuteronomy W. A. N. Dorland, ed., Dorland's Illustrated Medical Dictionary (Philadelphia, 195 7) Tosefta, MS. Erfurt. See Lieberman. pp. 8-11 'Eduyot Encyclopaedia Judaica (Jerusalem, 19 72) 'Erubin Exodus Yehuda Feliks, Ha-Haqla'ut be'eres_yiira'el bitqupat ha-mifnah veha-talmud (Tel Aviv, 1963) Joel Gereboff, Rabbi Tmfon: 1he Tradition, the Man, and Early Rabbinic Judaism (Missoula, 1979)

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2374 Git. GRA

Green Guthrie Hag HD Hul. Jaffee Jastrow JE Kasovsky Kasovsky, Tosdfa Kel. Ket. Kindler Klimowsky KM Krauss Lev. Lieberman Lieberman, Hellenism Lieberman, TK Loew, AP Loew, Flora Ma. Maim. Mak. MB Me Meg. Mekh. Men.

M.Q

INTRODUCTION

Gittin Elijah b. Solomon Zalman ("HaGa'on Rabbi 'Eliyahu," or "Vilna Gaon," Lithuania. 1720-1797), Mishnah commentary in Romm edition of Mishnah (Vilna, 1908); Tosefta emendations in Romm edition of Babylonian Talmud (Vilna, 1886) W. S. Green, ed., Approaches to Ancient Judaism, Vol. I (Missoula, 1978), Vol. II (Chico, 1980) H. H. Guthrie, Jr., s.v., "Tithes," in H. Buttrick, ed., The Interpreter's Dictionary qf the Bible (Nashville, 1962), 4:654-655. Hagigah Hasde David, David Samuel b. Jacob Pardo, ed. [Tosefta commentary], I. Seder Z,era'im (Livorno, 1776) Hulin Martin Jaffee, Mishnah's Theology qf Tithing: A Study qf Tractate Maaserot (Chico: Scholars Press, 1981) Marcus Jastrow, A Dictionary qf the Targumim, the Talmud Babli and Yerushalmi and the Midrashic Literature, 2 vols. (New York, 1895-1903) The Jewish Encyclopedia, ed. Isidore Singer (New York, 1901) Chayim Yehoshua Kasovsky, Thesaurus Mishnae: Concordantiae verborum etc., 4 vols., rev. ed. (Tel Aviv, 1967) Chayim Yehoshua Kasovsky, Thesaurus Thosephthae: Concordantiae verborum etc., 6 vols. (Jerusalem, 1932-1961) Kelim Ketubot Arie Kindler and Ernst Klimowsky, The Function and Pattern qf the Jewish Coins and the Ciry-coins qf Palestine and Phoenicia (Jerusalem, 1968) Ernst Klimowsky, On Ancient Palestinian Coins, their /iymbolism and Metrology (Tel Aviv, 1974) Joseph b. Ephraim Karo, Kesep Mifneh, commentary to Maimonides' Mishneh Torah, in standard editions of the latter Samuel Krauss, Talmudische Archiiologie, 3 vols. (Leipzig, 1910-1912) Leviticus Saul Lieberman, comm., The Tosdfa According to Codex Vienna, with Variants ftom Codex E:fort, Genizah MSS. and Editio Princeps, I. The Order qf Z,era'im (New York, 1955) Saul Lieberman, Hellenism in Jewish Palestine (New York. 1950) Saul Lieberman, Tosdfa Ki-:fthutah: A Comprehensive Commentary on the Tosdfa, I. Order Z,era'im, 2 vols. (New York, 1955) Immanuel Loew, Aramiiische Iflan:;:.enname (Leipzig, 1881) Immanuel Loew, Die Flora der Juden, 4 vols. (Vienna and Leipzig, 1926) Ma'aserot Maimonides (Moses b. Maimon 1135-1204), Kitab es-Sirqj [Mishnah commentary] in Romm edition of Mishnah Makkot Min!J.at Bikkurim, comm. Samuel Avigdor b. Abraham Karlin, in Romm ed. of Babylonian Talmud Me'ilah Megillah Mechilta d'Rabbi Ishmael, ed. H. S. Horovitz and I. Rabin (Jerusalem. 1970) Menahot Mo'ed Q;ltan

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ABBREVIATIONS AND BIBLIOGRAPHY

2375

Mifnah Ri' Jonah, comm. Ephraim Isaac of Premysla (Poland) in Romm ed. of Mishnah Ma 'aser Seni M.S. Meleket Selomoh. comm. Solomon b. Joshua Adeni in MS Romm ed. of Mishnah Nedarim Ned. Nega'im Neg. Adolf Neubaur. La Geographie du Talmud (Paris. 1868) Neubaur Jacob Neusner, Elie:::.er ben Hyrcanus: The Tradition and Neusner, Elie:::.er the Man, 2 vols. (Leiden. 1973) Neusner, Ho[y Things Jacob Neusner, A History qf the Mishnaic Law qf Ho[y Things, 6 vols. (Leiden, 1978-1979) Jacob Neusner, The Rabbinic Traditions about the Pharisees Neusner, Pharisees bifOre 70, 3 vols. (Leiden, 1971) Neusner, Purities Jacob Neusner. A History qf the Mishnaic Law qf Purities, 22 vols. (Leiden, 197 4-1978) Jacob Neusner. The Tosifta Translated from the Hebrew, Neusner, Tosifta vol. III. "The Order of Women"; vol. IV, "The Order of Holy Things"; vol. V, "The Order of Purities"; (New York. 1977-1979) Caius Secundus Pliny, Natural History (Cambridge, NH Mass., 1938-1942) Niddah Nid. 'Orlah Or. Pe'ah Pe. Alan Peck, Mishnah's Division qf Agriculture: A History Peck and Theology qf Seder Zeraim (Chico: Scholars Press, 1985) Pes. Pesahim PM Moses b. Simeon Margoliot (d. 1781), Penei Moshe, commentary to Palestinian Talmud; in Zhitomir ed. Gary Porton, The Traditions qf Rabbi Ishmael (Leiden, Porton 1976-82) Isaiah Press. 'Ere,I Yiira' el En.Iqlopediah Topograpit hisPress torit, 4 vols. (Jerusalem, 1951-1955) Julius Preuss, Biblisch-talmudische Medi:::.in (Berlin, 1911) Preuss Charles Primus, Aqiva's Contribution to the Law qf Zera'im Primus (Leiden, 1977) Qjddusin Qjd. Abraham b. David of Posquieres (Provence, c. Rabad 1120-1198), glosses to Maimonides' Mishneh Torah in standard editions of the latter Die Religion in Geschichte und Gegenwart Handworterbuch fiir Theologie und Religionswissenschaft, 3rd ed. (Tiibingen, 195 7) R.H. Ros Hasanah Sacks-Hutner Nissan Sacks, ed., The Mishnah with Variant Readings, Order Zera'im, 2 vols. Edited at Institute for the Complete Israeli Talmud, Joshua Hutner, director (Jerusalem, 1972-1975) Sanhedrin San. R. S. Sarason, A History qf the Mishnaic Law qf Agriculture: Sarason, Demai Study qf Tractate Demai (Leiden, 1979) Sarason, Mishnah and Scripture R. S. Sarason, "Mishnah and Scripture: Preliminary Observations on the Law of Tithing in Seder Zera'im," MR

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2376 SCH Sens Shab. Sheb. Sheq. Sifra Sif. D. Sif. Nu. Sirillo Soncino Sot. Tern. Ter. Toh. TYB T.Y. TYT

TYY Uq. White y. Yad. Yeb. Zahavy Zeb. Zuckermandel

INTRODUCTION

in W. S. Green, ed., Approaches to Ancient Judaism II (Chico, 1980) Standard Cyclopedia qf Horticulture 6 vols. (London, 1915) Samson b. Abraham of Sens (France, late twelfth-early thirteenth centuries) Mishnah commentary in Romm ed. of Babylonian Talmud Sabbat Sebi'it Seqalim Sifra debe Rab, hu' Sifer Torat Kohanim, ed. I. H. Weiss (Vienna, 1862) Louis Finkelstein, ed., Siphre on Deuteronomy (Berlin, 1939) Siphre debe Rab fasciculus primus: Siphre ad Numeros atijecto Siphre :{ptta, ed. H. S. Horovitz (Leipzig, 191 7) Solomon b. Joseph Sirillo (d. ca. 1558), commentary on Palestinian Talmud The Babylonian Talmud: Seder Zera'im, II. Maaser Sheni, ed. Moses Hirsch Segal (London, 1948) Sotah Temurot Terumot Tohorot Baruch Isaac b. Israel Lipschutz (1812-1877), Tip' eret Yisrael Bo'a;:;, super-commentary to TYY in Romm ed. of Mishnah Tebul Yom Yom Tob Lippmann Heller (1579-1654), Tosepot Yom Tob, Mishnah commentary in Romm ed. of Mishnah Israel b. Gedaliah Lipschutz (1782-1860), Tip'eret Yi.frael Yakin, Mishnah commentary in Romm ed. of Mishnah 'Uq~in

E. B. White, Roman Farming (Ithaca, N.Y., Yerusalmi, Palestinian Talmud Maimonides, Mishne Torah, standard ed., 6 Yebamot Tsvee Zahavy, The Traditions qf Elea;:;ar Ben Zebahim M. S. Zuckermandel, ed., Tosephta, based on (Trier, 1881-1882)

1970) vols.

A;:;ariah (Missoula, 1977) the Eifitrt and Vienna Codices

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MISHNAH-TOSEFTA MAASER SHENI TEXT AND COMMENTARY

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MISHNAH-TOSEITA MAASER SHENI CHAPTER ONE

Produce designated as second tithe either must be taken to Jerusalem for consumption or must be sold and its value in coin used to purchase other food as second tithe in the holy city. The chapter before us spells out the implications of these facts. In particular, it develops the notion that the farmer must use the produce only as food, and not for any other purpose. The point of the law is that since the produce and coins are consecrated, the farmer is not free to use them in any way he chooses. Rather, he must use them only as Scripture specifies, that is, as food. The chapter's discussion unfolds in two thematic units, dealing first with prohibited uses of produce (1: 1~2) and then with prohibited uses of coins (1:3~7). M. 1: 1 lists four types of transactions for which the farmer may not use produce in the status of second tithe. In each of the cases listed. the farmer receives some monetary benefit from using his consecrated produce for something other than food. By prohibiting such transactions, M. makes it clear that the farmer enjoys only limited control over how he may use consecrated goods. M. 1:2 carries this principle forward, applying it to tithe of cattle. Like second tithe, this animal is not fully the property of its owner. It follows that it may not be used in business transactions which will financially benefit the farmer. M. 1:2G completes this unit by considering the one business transaction in which consecrated produce may be used. This is when the farmer sells produce in the status of second tithe in order to use the proceeds to purchase other food in Jerusalem. M. makes the obvious point that if the produce is sold in this way, the farmer must receive in exchange only coins which can be used in Jerusalem. This is to insure that the farmer will indeed eventually eat second tithe in Jerusalem. Having discussed the use of consecrated produce, the chapter investigates the use of consecrated coins. The redactor here stresses two points: that the coins must be used to purchase food (M. 1:3~5C, 7) and that the coins must be used in Jerusalem (M. 1:5D~6J. We consider first what is to be done if the farmer uses his consecrated coins to purchase non-foods. M. 1:3~4 declare, first, that in some cases the purchase of inedible items is in fact legitimate. This is so if the farmer

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incidentally acquires certain inedible items along with food, items such as animal skins or jugs. In these cases, the inedible items do not constitute a purchase in their own right since the farmer has no intention of purchasing these particular items. Consequently, they are not deemed to take on the status of second tithe from the coins. M. l :4-SC and M. l: 7 next investigate cases in which the farmer clearly does purchase inedible items with consecrated money. The discussion now concerns how the farmer rectifies matters. Two theories are offered. According to M. 1:4 and 1:7, the purchased items themselves have become consecrated. That is, the transaction effects the deconsecration of coins even though the sale is illegal. The purchases must be resold, therefore, and the realized money used to purchase food in their stead. M. 1:SA-C holds, to the contrary, that no transfer of status takes place since the sale is in all events prohibited. The purchases remain unconsecrated while the paid-over coins are still holy. The farmer, then, must retrieve his consecrated money and return the purchases. The second misappropriation of consecrated money investigated by M. concerns spending the money outside of Jerusalem (M. 1:SD-6). Of interest here is the farmer's intention when he made the purchase. If he spent the coins inadvertently, being unaware that he was paying with consecrated coins, the transaction is deemed to have had no effect. That is so because the farmer has not intended to deconsecrate the coins. The purchases remain unconsecrated, therefore, and the farmer is obligated to bring these back to the merchant. He then retrieves in return the original coins, which remain consecrated (M. 1:SA-C). If he knowingly paid over consecrated money, however, the transaction does affect a transfer of consecration. The farmer now intentionally deconsecrated the money. It follows that his purchases take on the status of second tithe and must be taken to Jerusalem for consumption. 1:1 A. [As to produce in the status of' second titheB. (1) They do not ('yn) sell it/ (2) and they do not take it as a pledge (mms"knyn), and (3) they do not give it in exchange [for other produce

to be eaten as second tithe].

1 M. does allow the farmer to sell such produce so as to transfer its status to coins. These coins are then taken to Jerusalem in place of the original and are used there to purchase other produce. This transaction is spelled out already in Deut. 16f. The action prohibited here, apparendy, is the sale of such produce to another with the understanding that the purchaser acquires the food in its consecrated status and must

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C. And they do not (wl') reckon weight with it. D. And in Jerusalem, a man may not say to his friend: "Here is wine for you, now give (wtn) me oil." E. And [this rule applies] likewise to all other [consecrated] produce. F. But ('bl) they give [it] to each other as a gift. M. 1:1 (C: y. M.S. l:l F: M. M.S. 3:1)

Produce declared second tithe is taken to Jerusalem and is eaten there by the farmer (Deut. 14:22-27). M. points out that the farmer is in fact prohibited from making any other use of the produce (A-C). That is, once produce has been consecrated, it may be used only for its declared purpose, namely as food to be eaten in Jerusalem by the farmer. The reason is that the farmer does not enjoy exclusive rights to the use of the food. Rather, he must use it in accordance with the restrictions laid down by Scripture. It follows that the farmer may not use such produce for his own personal benefit, as a means of earning money, for example (B), or for his convenience (C). D-F define more precisely the type of exchange that B(3) prohibits. The point emerges from the contrast between D and F. In D, the farmers give each other produce with the expectation of receiving some favor in return. In this case, the transaction is like a sale in that each farmer receives some benefit. In F, to the contrary, each farmer gives the other a gift without expecting to receive something in return. This type of transaction is allowed, even if each party ends up receiving produce from the other. A. [As to] second tithe: B. (1) thf!Y do not sell it, (2) and thf!Y do not take it as a pledge, (3) and they

do not give it as a pledge, (4) and thl[Y do not exchange it. C. And thry do not reckon the weight of golden dinars with it [M. 1:1A-C] D. even to deconsecrate [other] second tithe with them [i.e., with the golden dinars]. E. And he may not give them [that is, coins in the status of second tithe] to a money-changer to derive benefit from them or (w-) to loan them out (wlhlwwtn; E reads: l' ylwh 'wtm) to gain stature through them (lht'tr, GRA emends to: lht'fr). 2

eat it in Jerusalem. What is ruled out is for the farmer to sell to another his obligation to eat second tithe in Jerusalem. See Albeck and MB. 2 The expressions lhtn'wt and lhflr appear in both MS traditions. Both terms are associated with money lending also in T. B.B. 4:2, where a third term, lhtlmd (= to practice) is unclear. Later exegetes offered several alternate readings: lhtr'wt for lhtn'wt and lht'fr for lht'lr (GRA). Maimonides supplies lhtgdl for lht'lr in Yad 3:20. See Lieberman's discussion, p. 713.

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F. [But] if [he does so] in order that they not rust fflw bJwdh), it IS permitted. 3 G. How [do we interpret] "they do not sell it" [= B(l)]? H. One should not say to another, "Here are 200 [zuz worth of consecrated produce], now give (wtn) me one maneh [i.e., 100 zuz in unconsecrated coin]." I. How [do we interpret] "they do not take it as a pledge" [= B(2)] J. He should not enter his [the borrower's] house and take his second tithe as a pledge. T. 1:1 (p. 243, ll. 1-6) K. How [do we interpret] "they do not give it as a pledge"(= T. 1:1B(3)]? L. One should not say to another, "Here is this tithe, let it be yours (wyh' bydk; E reads: wh' bydk), so give [me] unconsecrated [money or produce] for it." M. How [do we interpret] "they do not exchange it" [= B(4)]? N. One should not say to another, "Here is wine for you, now give me oil" [M. 1: 1D]. 0. But he says to another, "Here is wine for you because I have no oil," and the other one says, "Here is oil for you because I have no wine." P. It turns out that they are (nmlw) exchanging and [yet] not exchanging, [rather] they are doing a favor for one another. T. 1:2 (p. 243, 11. 6-1 0) (B: b. Shah. 22b, y. M.S. 1:1; E, F: T. B.M. 4:2; J, 0: y. M.S. 1:1) T. is divisible into three units: A-D, which cites and expands M. 1: lA-C; E-F, the discussion of coins used to deconsecrate produce in the status of second tithe; and G-P, a commentary on T. 1: lB. D glosses C. F limits the rule of E. The third section systematically cites T. 1: lB, at G, I, K and M, and provides a specific illustration of each. The four question-and-answer units of this third unit are cast in the same pattern: ks_d xx (= a citation from T. 1: lB) plus l' plus a singular imperfect participle. D glosses N and is explained by P. In C-D produce (or coins) in the status of second tithe are used to weigh golden dinars, which themselves will be used to deconsecrate other produce in the status of second tithe. In this case, the farmer receives no benefit from this use of consecrated produce since he is simply

3 Hlwdh is traditionally translated as "rust." Technically, "corrosion" would probably be more accurate, as none of the commonly used metals for minting (copper, gold, silver, orichalcum) was particularly susceptible to rust. I have chosen to retain the more familiar translation.

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preparing other consecrated foods. Nonetheless, his use of consecrated produce is prohibited. E directs our attention to coins which have been used to deconsecrate produce in the status of second tithe. Such coins take on the status of second tithe from the produce. Consequently, they become subject to the restrictions which once applied to the produce and may not be used by the farmer to gain benefit. It follows they may not be given to a moneychanger, who will derive benefit from them by appearing to be rich (so MB), nor may they be loaned out, because the lender will realize some gain through the transaction. The coins are to be used only for their declared purpose, namely to be used in Jerusalem to purchase food to be eaten as second tithe. H gives us an example of a prohibited sale. The farmer here sells his consecrated food cheaply, indicating he expects the purchaser to take the food to Jerusalem and eat it there. As we noted in M., however, the farmer must himself eat his consecrated produce in Jerusalem and may not transfer this obligation to others. Consequently, this type of sale is prohibited. N-P spell out the point M. makes in M. 1: lD-F. N's illustration of prohibited exchanges repeats the language of M. 1: 1D. 0 then describes the kind of exchange that the law will allow, the mutual giving of gifts (M. l:lF). P explains why O's transaction is acceptable. 4 A. [As to] produce in the status of second tithe: 5 B. they do not put it on a callous [Jastrow: on the sole of the foot] and not on a lichen6 (h.yt, D: zwyt, A: zzyt; Lieberman amends to h.zzyt). C. And they do not make it [into] an amulet. T. 1:3 (p. 243, 11. 10-ll)

4 MB explains the rationale behind Q-P as follows: When the first person says he is giving his wine away because he has no oil, he is simply stating a matter of fact, to explain why he is not giving his friend oil as well as wine. Thus, his friend is in no way obligated to give him oil in return, and the transaction is technically a gift. 5 SJI'!Yt is translated as pwdgrh in y. Shah. 8b. The BabylonianlaTalmud describes pwdgrh as a painful disease of the feet (Sotah lOa and Sanh. 48b). The first century B.C.E. physician, Celsus, describes a disease of the joints, called podagra, at some length in his De Medicina, Vol. I, pp. 455-461 and 463. Podagra is also discussed In Preuss, Biblisch-talmudische Medizin, p. 191. See also Lieberman's discussion, p. 715. 6 Lichen is "an inflammatory skin disease with wide, flat papules, occurring in circumscribed patches and often very persistent" (Dorland's Illustrated Medical Dictionary). The first-century physician, Celsus, describes several lichen-like diseases in De Medicina, Vol. II, pp. 169-173. See also the discussion in Preuss, p. 398.

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TEXT AND COMMENTARY

The formulary pattern of this pericope is familiar from M. 1: 1 and T. 1: 1. The question now is whether or not consecrated produce or coins may be used for some benefit other than monetary gain. 7 As we see, even such benefit is prohibited. These rules are perfecdy in accord with M. and T.'s notion that produce or coins in the status of second tithe must be used only for consumption in Jerusalem. 8 1:2 A. [As to] the tithe of catde: B. (1) [the farmers] do not sell it [when the animal is] unblemished [and] alive; (2) and not [when the animal is] blemished, [whether it is] alive or slaughtered. C. (3) And they do not give it as a token of betrothal to women. D. [As to] the firsding [i.e., the first calves of the year's herd]: E. (1) they [i.e., the priests] sell it [when the animal is] unblemished [and] alive; (2) and [when the animal is] blemished, [whether it is] alive or slaughtered. F. (3) And they give it as a token of betrothal to women. G. They do not deconsecrate [produce in the status of] second tithe with (1) a poorly minted coin ('symwn) 9 nor with (2) a coin that is not [currendy] circulating (hmtb' f)nw yws'), nor with (3) money that is not in one's possession (f)nn brfwtw). M. 1:2 (D-F: b.B.Q 12b, b.Tem. 7b, y.Qjd. 2:5; G: b.B.M. 47b)

The pericope restates the principle, introduced at M. 1: 1, that the farmer does not have the right to use consecrated food as though it were his own personal property. The point is made by contrasting the laws applying to tithe of catde (A-C) with those applying to firsdings

7 It is unclear from the body of the pericope whether second tithe produce or second tithe coins are under discussion. Both interpretations are possible. Maimonides in Yad, M.S. 3:16, assumes the subject to be oil (as in T. Terumot-9: 12, M. Shebi'it 6:4 and M. Shabbat 12:12. HD understands the prohibition to refer to coins as is the case in M. Shabbat 6:6. 8 The question arises in M. 2: 1-4 as to whether or not anointing with oil is deemed to be a form of consumption and thus permissible in Jerusalem. T. here seems to claim that anointing with oil in the status of second tithe is not permissible. It is possible, of course, that T. here is concerned with the use of other kinds of consecrated produce to make medicines or balms. 9 The word, 'symwn, denotes a coin that has no image, or is so poorly minted that its value is in question. Exegetes derive the requirement to use only properly minted coins for the redemption of tithe from Deut. 14:25 wsrt hksrthat is, the money must have an image-~wrh. See Lieberman's discussion on p. 715.

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(D-F). The farmer is not free to use consecrated tithe of cattle for his personal benefit while the priest may use firstlings in any way he wants. Since the latter offering is not consecrated, no restrictions apply to its use until it is offered at the altar. Tithe of cattle is that one-tenth of the herd which the farmer must consecrate each year (Lev. 27:32-33). Like produce in the status of second tithe, such animals must be eaten by the farmer in Jerusalem. The farmer then does not have the right to use these beasts as he would use unconsecrated animals in his possession. Such animals therefore may not be used in any business transaction from which the farmer expects to gain personal benefit (B-C). In contrast, firstlings are not consecrated but are deemed to be the personal property of the priests (M. Bekh. 4: 1). Since these are the property of the priests, it follows that the priestly owner may use these animals for his own personal benefit (D-F). The pericope is complicated by the fact that E introduce the categories of blemished vs. unblemished and alive vs. slaughtered. This is especially a problem at B since we expect the law to prohibit the use of tithe of cattle for the farmer's personal benefit irregardless of the animal's physical state. As we shall see, however, these criteria do make sense in connection with firstlings. We can account for the presence of these criteria in B, then, on the grounds that the redactor wants to produce a perfectly balanced doublet. Let us now consider briefly how these criteria relate to firstlings. E( 1) indicates, first, that the priest may sell living firstlings but not slaughtered ones. The reason is that a priest who slaughters a firstling must sprinkle its blood on the altar and offer its fatty parts as a burntoffering (Nu. 18: 15f). That is, once the priest slaughters an animal, he is no longer free to dispose of it as he will. It follows that while a living animal may be sold, a slaughtered one may not. 10 E(2) now declares 10 As we have stated, certain parts of an unblemished firstling, must be offered on the altar before the meat can be eaten. It seems odd, then, that M. would allow the priest to sell an unblemished firstling to a non-priest, since this person will use the animal for secular purposes. By selling the beast to a non-priest for consumption, then, the priest is depriving the altar of its due. In order to account for M.'s law, Maimonides declares that while a non-priest may purchase the animal, he may not slaughter it while it is still in its unblemished state. Rather, he must guard the animal until a blemish naturally appears in it. When this occurs, the animal is in all events unfit for the altar and available to non-priests, as E(2) makes clear. Now the purchaser may freely use the meat of the firstling without fear that he has improperly used what belongs to the altar.

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that this distinction between alive and slaughtered is irrelevant if the firstling is blemished. Blemished animals are in al] events unfit for the altar. Since the priest cannot offer up the blood and fatty parts of the blemished animal, it follows that he is free to sell it even if it is slaughtered, as E(2) declares. We see, then, that the criteria mentioned in E are in fact appropriate for firstlings. As we stated above, they were most likely introduced at B in order to create a balanced pericope. G introduces a fresh topic, coins which a farmer may receive when selling produce he has designated as second tithe. These coins take on the sanctity of the consecrated produce and are used in Jerusalem to buy other food to be eaten as second tithe. It follows that the farmer must be sure that the coins he uses for this purpose are proper coins. That is, he must be sure to receive coins which will be acceptable to grocers in Jerusalem. C defines for us the characteristics of such proper coins. The coins must be properly minted (Gl), generally accepted (G2), and immediately available to their owner (G3). A. Thf!Y do not deconsecrate [produce in the status qf] second tithe with a poorfy minted coin [M. 1:2C]. B. And R. Dosa permits. C. But [regarding] small coins (pnvtwt ktnyt, E.D: pnvtwt ktnywt), which are given [as] a token in the bathhouse, all agree that they do not deconsecrate it [i.e., the second tithe] with them. T. 1:4 (p. 243, 1. 11-244, 1.2) (b.B.M. 47b; y.M.S. 1:2 A-B: M. Ed. 3:2) A cites M. 1:2G(1). R. Dosa's conflicting opinion in B is narrowed by C. The small coins referred to in C are tokens minted by private individuals rather than the government. 11 Since they are not money in the strict sense of the term, they may not be used to deconsecrate second tithe produce. A. They do not deconsecrate it [i.e., produce in the status of second tithe], B. (1) not with a coin from the Revolt [of Bar Kokhba], (2) and not with a coin that is not [cun-entfy] circulating, (3) and not with monl!Ji that is not in one's possession [M. 1:2G]. T. 1:5 (p. 244, 11. 13-14) (y.M.S. 1:2) C. How [do we interpret "coin from the Revolt" and "coin that is not circulating]?" 11 Exegetes offer several opinions as to the function of these coins. MB suggests that they aided the bathhouse attendants in keeping track of the number of patrons. They may also have served as tokens signifying prepayment. See Lieberman's discussion, p. 715.

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D. [If] one had coins [of the Revolt of Bar] Koziba 12 (m'wt kzbywt) and coins of Jerusalem 13 (m'wt ynvslmywt) they-do not deconsecrate it [i.e., produce in the status of second tithe] with them. E. If he did deconsecrate [with them], they [i.e., the coins] have not acquired [the status of second] (qnw: E: qnh = he has not acquired) tithe. F. But with a coin which circulates on the authority of (mswm; E: l.fwm = in the name of) the earlier rulers (mllfym hrfwnym), they deconsecrate it [i.e., the second tithe] with it. G. They do not deconsecrate it, H. either with local [i.e., Palestinian] money (m'wt s'"kn = money from here) in Babylonia, or with money of Babylonia (Lieberman supplies kn = here). I. But if he was here and he had [Babylonian] coins in Babylonia, they deconsecrate it [i.e., second tithe] with them. J. How do we interpret], "17uy do not deconsecrate with monf!J that is not in his possession [= M. l :2G(3)]? K. [If one had coins hidden in a [Roman] camp (qJJ.r") 14 or in the royal hill country (wbhr snmlk), 15

12 HD, basing his interpretation on the y. M.S. 1:2, interprets this passage to ban any coins from a revolt like Bar Kokhba's. Since Jerusalem will only be legitimately conquered at the return of King David, coins of any other regime are not valid. 13 According to Bunte, p. 151, "money of Jerusalem" refers to the coins minted under the leaders of the rebellion during the reign of Nero. His point is that the two types of coins mentioned in T. are equivalent in that both were minted by revolutionaries. On the other hand, Lieberman says that at issue are the coins of ancient Jerusalem, whose value was determined by weight and not by their minted design. This exegesis attempts to harmonize T.'s ':Jerusalem coins" with the '.rymwn of M. It is conceivable that "money of Jerusalem"may be another name for the coins minted by Bar Kokhba. 14 The Soncino translation to B.Q 98a (Nezikin 1., p. 569) takes qstr' (and several variant spellings) to be a Hebrew transliteration for the Latin word denoting military camp and thus not a reference to one specific place. The Enryclopedia qf Palestine (IV: 831, 833) identifies several sites whose names are formed from the word "castra.'' I have chosen to translate the phrase using the indeterminate "a Roman camp" rather than a specific place name as better serving the sense of T. All Roman camps would be equally off limits to Jews after the Bar Kokhba revolt. 15 The place name, hr hmlk, is a matter of some disagreement. Soncino translates the phrase as "King's Mountain"-an unidentified site in Palestine. Bunte, p. 152, cites our T. (as "Bet-ha-melek") and says that the name refers to a place far from Jerusalem. Press, 7he Enryclopedia qf Palestine (II: 208), however, identifies hr hmlk with the mountains of Judah in the vicinity of Jerusalem. This is also the opinion of M. Avi-Yonah in his article under the heading "Har Ha-Melek" in the Enryclopedia]udaica (VII: 1337). I have adopted this later opinion for my translation. Subsequent to the revolt of Bar Kokhba, the Roman authorities turned Jerusalem into a Roman polis and banned all Jews from entering. Thus it was appropriate to use the Jerusalem area as an example of a place that was inaccessible to Jews. The original location of the site was apparendy forgotten by Amoraic times (see b. Gittin 57a, for example).

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L. or his wallet (~sw) fell into a cistern, M. even if he knows it is there, N. they do not deconsecrate it [i.e., produce in the status of second tithe] with them. 0. And if he did deconsecrate [second tithe], he has not acquired [the status of second] tithe [for the money]. T. 1:6 (p. 244, ll. 14-20) (C-H: b.B.Q 97ab; H-K: y. M.S. 1:2; K: b.B.Q 98a)

T. gives specific instances of types of coins which are not considered to be proper money. Coins from the revolt of Bar Kokhba and Jerusalemite coins (D) were minted by illegitimate authorities. On that account, they are not deemed to be proper money. F gives the contrary case, coins which, although out of date, were minted under proper authority. These are valid coins. G-I specifY that coins not in circulation refer to coins of one country which are not accepted in another (H). Coins of a foreign country may be used to deconsecrate produce in that foreign country, however, even if the owner is elsewhere (I). This leads us to the third consideration (J-0): cases in which the coins are not accessible to the owner at all The laws assume the situation obtaining in Palestine after the Bar Kokhba revolt when Roman troops were stationed throughout Palestine and when Jerusalem had been converted to Aelia Capitolina. The rationale behind deconsecrating second tithe produce with money is that the coins are taken to Jerusalem and used to procure other produce. If the owner is unable to get the coins to Jerusalem because they are inaccessible, such coins obviously cannot be used to deconsecrate second tithe. A. Similarly (~ws_' bw) [Lieberman: just as he may not redeem second tithe produce with coins that are in a Roman camp or in Jerusalem or in a cistern ...], B. one who is walking down the road with copper coins in his hand and sees a thug ('ns) coming toward him, should not say, "Lo, those are deconsecrated with the copper coins that I have in my house." C. But (w; E and D omit) if he did so, his words have effect (~yrnyn). T. 1:7 (p. 244, ll. 21-22) (b.B.Q 115b) D. [If] one was carrying jugs of wine and jugs of oil and saw that they were broken ('wtn fnsorw), he should not say, "Lo, these are made heave-offering and tithes for the produce I have in my house." E. If one did so, lo, it [the produce in his house] is forbidden [to be eaten because it is still in the status of untithed produce]. T. 1:8 (p. 244, 1. 22245, 1. 24)

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In A-C the thug is about to take the sanctified money that the man has in his hands. The man quickly tries to deconsecrate the coins with other coins he has in his house. In this way, he hopes to prevent the sanctified coins from falling into the hands of the thug, who will certainly use them for secular purposes. Normally, one may not transfer the status of second tithe from one set of coins to other coins stamped on similar metal (M. 2:6-9). T. allows the transaction to be considered valid in this case in order to insure the proper use of the second tithe coms. D-E present a contrasting case. Now the man wants to sanctify the produce he is about to lose. If he is able to sanctifY the leaking oil or wine, he will have fulfilled his legal obligation to separate tithes without having to forfeit more produce. The leaking produce is lost to him anyway. Here the intention is not to safeguard sanctity, but to fulfill the law as cheaply as possible. Since the man makes the declaration knowing that he cannot properly carry the tithing procedure through, T. does not accord validity to his statement. GRA and Lieberman both want to emend T. 1:7 in light ofT. 1:8. 16 According to them, the question is one of deconsecrating what is at home with the coins the man is carrying with him and which he is about to lose. The assumption, as in D-E, is that the man will try to sidestep the law in some way. That is, the exegetes have the man transferring the sanctity of coins at home to the coins he will soon lose, thus being relieved of the responsibility of taking them to Jerusalem. According to these emendations, the coins in his hand do indeed become sanctified, presumably because the coins are under his control when he makes his declaration. 1:3-4 A. (1) One who purchases [in Jerusalem] a domesticated animal (bhmh)

[with money in the status of second tithe] for [use as] a peace-offering, or, Cw, most MSS: w-: and) a wild animal hyh for [use as ordinary meat (lbsr t!wh), 17 B. the hide is deemed to be unconsecrated (yl ... lkwlyn) C. even though [the value of] the hide exceeds [the value of] the meat.

16 GRA, following: b. B.Q ll5b emends to: hry pyrwt .[yf ly btwk byry m!1wllyn 'l m'wt hllw. Lieberman suggests the following reading: m!1wllyn 'l[yhn] m'wt .[yf ly btwk byry. 17 The term bir fwh, literally "meat of desire" is derived from Deut. 12: 20: "You may eat as much flesh as you desire (fwh nps"k Fkl bfr)." I M. the phrase is used to designate meat bought for private consumption, as opposed to meat purchased for the purpose of an offering.

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D. (2) Sealed jugs of wine [which are purchased in Jerusalem with consecrated money]E. in a place where they are normally sold (fdrkm lmkwr) 18 sealed, F. the jar is deemed to be unconsecrated. G. Nuts and almonds [which are purchased inJerusalem with consecrated money]-their shells are deemed to be unconsecrated. H. Wine [made from grape skins and stalks] 19 (tmd)-until it has fermented, it is not bought (nlqfl.) with money [in the status of second] tithe. I. Mter it has fermented, it is bought with money [in the status of second] tithe. M. 1:3 (H-1: y. Ma. 5:5) 1:4

J. (1)

One who purchases [in Jerusalem] a wild animal [with money in the status of second tithe] for [use as] a peace-offering, (most MSS: w-: and) a domesticated animal for [use as] ordinary meat, K. the hide is not deemed to be unconsecrated [i.e., it is in the status of second tithe and must be resold]. (Several MSS add: even though [the value of] the hide exceeds [the value of] the meat.) L. (2) Open or sealed jugs of wine [which are purchased in Jerusalem with consecrated money]M. [in] a place where they are normally sold open, N. the jar is not deemed to be unconsecrated. 0. Baskets of olives (several MSS: figs) and baskets of grapes with their container [purchased with consecrated money]-the value of the container is not deemed to be unconsecrated. M. 1:4 (K-M: b. Men. 82a)

A farmer purchases in Jerusalem with consecrated money certain inedible items, such as skins of animals or jugs containing wine. At issue is whether or not these items, which cannot be eaten, become consecrated as second tithe on account of the sale. If they do become consecrated, they must be resold so that food can be purchased in their place, since the farmer is required to eat second tithe. M.'s point, as we shall see, is that consecration adheres to only those inedible items which the farmer purposely acquires with his consecrated money. This is so because he has intentionally transferred the status of second tithe

Most MSS indicate a passive mood, which is clearly required by the text. This type of cheap wine was widely known in the Roman Empire. It was made by steeping stalks, husks and skins of grapes in water until the mixture began to ferment. Pliny discusses the manufacture of this wine, termed "worker's vine," in .NH XIV: 10. See also Dalman, AS. VI, p. 371. 18

19

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to them. If, however, the farmer acquires the hides or jugs only incidentally along with food that he purchases, the inedible items are not deemed to be in a consecrated status. The farmer has not intentionally bought these, and so the status of second tithe is not deemed to have been transferred to them. M. makes its point in a series of three contrasting pairs: A-c and J-K, concerning animal skins, D-E and L-N, regarding wine jugs, and finally the singletons at G and 0. We will consider each pair in turn. In A-C a domesticated animal is purchased for use as a peaceoffering, or a wild animal, not suited for the altar, is purchased as ordinary meat. These animals become consecrated with the status of second tithe. They are therefore subject to regulations regarding second tithe produce, but their hides remain unconsecrated (B) and may be used as the farmer sees fit. This is so because the farmer does not intend to purchase the hides themselves, but rather acquires them only incidentally along with the animals. He may dispose of these hides as he would any other unconsecrated item. J-K reverse the situation. Now the farmer purchases with consecrated money a domesticated animal for use as ordinary meat, or a wild animal for use as a peace-offering. Both of these sales are improper, however, since domesticated animals purchased with consecrated coins may not be used as ordinary meat nor may wild animals be used as an offering. 20 Since the animals have been purchased with money in the status of second tithe, however, they do become consecrated. Consequently, the animals must be resold so as to consecrate money used to purchase proper produce. In these cases, M. declares the hides to be sanctified along with the rest of the animal. This insures that the entire animal is resold and its full value used to purchase other food. From animal hides, M. moves to a consideration of the parallel case of wine bought with consecrated money. The question concerns the status of the jug which contains the wine. If the wine is normally sold in sealed jugs (D-F), the container is understood to be an intrinsic part

20 Y. M.S. 1:3 claims that originally domesticated animals could be bought with consecrated coins for use as second tithe. Sages later prohibited this practice. The reason, y. claims, is that so many domesticated animals were purchased for private use that there were none left for peace-offering. In order to insure a steady supply of peace-offerings for the altar, they prohibited domesticated animals from being purchased for other purposes. I do not know where y. gets its information, and so I cannot evaluate its claim.

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of the sale. It is thus analogous to the hides of properly purchased animals, and is not deemed to acquire sanctity. The farmer may dispose of the jug as he will. If the wine is normally sold in open containers (L-N), it is possible to buy the wine without its jar. Now the jar does constitute a purchase in its own right and so is deemed to acquire the status of second tithe. It must be resold so that other produce may be purchased in its stead. G and 0 apply the same logic to produce. Nutshells are an intrinsic part of the fruit and therefore do not constitute a distinct purchase. It follows that they do not acquire the status of second tithe and may be discarded. Fruit baskets (0) however, are not naturally a part of the food they contain. If purchased with consecrated coins, they must be resold. H-I introduce a new issue. Its point is that only items in the status of food may be purchased with consecrated money, a theme taken up in the following pericopae (M. 1:5-71). Temed wine is a cheap beverage made by soaking grape skins and stalks in water and letting the mixture ferment. Before fermentation begins, the mixture is not deemed to be a food item and so is not to be purchased with consecrated money. The fermented liquid is deemed to be a kind of wine and so may be purchased for use as second tithe. A. They buy a wild animal and a fowl for use as ordinary meat, but not for use as peace-offerings [= M. 1:3-4]. B. When they decreed that ordinary meat would make hands unclean, they ruled, "They do not buy a wild animal for use as ordinary meat," C. But they buy fowl for use as ordinary meat. D. R. Leazar ben Judah from Abilene ()f 'blyn)2 1 says, "Not even fowl [is bought] for use as ordinary meat. E. For the grape-pressing (gt) made by [one who ate] ordinary meat is unclean in connection with Holy Things (lqwds), unclean (D, E: clean) in connection with heave-offering." T. 1:9 (p. 245, 11, 24-28) (cf. T. Niddah 9:18)

T. is best understood m light of the more detailed tradition of T. Niddah 9: 18:

The spelling of this place-name varies considerably. D gives 'klym, A has 'yblyys, lfr 'blyn. Press, 7he Encyclopedia qf Palestine I, p. 4, identifies the village as "Avelin" located in northern Israel. It was the site of the Crusader fortress of Abelin. 21

T. Niddah 9:18 offers

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A At first ordinary meat was regarded as insusceptible to uncleanness. B. They reverted to decree concerning it that it should be subject to uncleanness of the hands. C. They reverted and decreed concerning it that it should be subject to uncleanness [also] through contact. D. They reverted and decreed concerning it that it should be like carrion itself and impart uncleanness [also] through carrying. E. They reverted and said every olive-pressing made in connection with ordinary meat is unclean for Holy Things but clean for heave-offering. F. They reverted and ruled that this applies to a beast and not to fowl. G. R. Eleazar ben Judah of Kefar 'Ublin said, "Even if it was made in connection with one fowl or in connection with one chicken, it is unclean for Holy Things and clean for heave-offering." 22

Two issues have been conflated into our account: the uncleanness of ordinary meat (A-B+ E), and the question as to whether or not fowl is considered to be meat for this purpose (C+ D). A restates the situation assumed by M. 1:3A. Then comes the decree of B whose consequences are illustrated at E: one who eats ordinary meat becomes unclean and can render liquids i.e., the grape juice) unclean. Purchasing a wild animal for ordinary meat with consecrated money is prohibited, therefore, because all second tithe food must he eaten in a state of cleanness. 23 A One who acquires a cask [of wine] in Jerusalem [with money in the

B. C. D. E. F.

status of second tithe][if the cask is] open, he must eat [produce] in place of [the value of] the vessel; [if the cask is] sealed, he does not need to eat [produce] in place of [the value of] the vessel. Under what circumstances? For [casks] of (bs1) wine. But for those of (1) brine, and of (2) vinegar, and of (3) fish-brine (mwrys), 24 and of (4) oil. and of (5) honey, whether [the cask is open or sealed, he does not need to eat [produce] in place of [the value of] the vessel.

22 Neusner, The Tosifla, IV, pp. 233-234. I have changed Neusner's "meat of desire" to "ordinary meat" to maintain consistency with my translation. 23 M. Parah 11:5 takes for granted that one requiring immersion by the rabbis is prohibited from eating tithes. All exegetes offer the eating of unclean food as an example of how such uncleanness is acquired. The tithe prohibited here is generally understood to be second tithe. See MS to this mishnah. Also TYT and TYY to M. Parah ll :4, which parallels 11 :5's discussion. 24 Mwrys is a dish made of chopped fish in salt water or wine.

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G. [As for] the broom-shaped twig of the date-palm (dytb'wt s1 tmrh), 25 H. and (l) wicker-baskets lpwJ/fwt) and (2) pomace baskets of dates, I. one does not eat [produce] in its place. J. If they were [ordinary baskets, lo, this one eats [produce in place of the value of the basket]. K. And [as to] all other things, one does not eat [produce] in their place, L. (l) either in place of kernels (hh.r¥~-y!iJ, (2) or in place of husks (h;::gyn), or in place of mash (hgpt). 26 T. l:lO (p. 245, ll. 28-34) (B-D: T. M.S. 2:18)

T. is divided into three units: A-F, dealing with casks of liquids; G-J, types of baskets; and K-L, refuse of produce. A unfolds in accordance with the principles of M. 1:3D-F. The sealed cask is intrinsic to the purchase of the wine it contains. Since it is not deemed to be a distinctive purchase, it does not become sanctified by the consecrated money used to purchase it. An open cask, however, is considered to constitute a separate purchase, since the wine may be sold directly out of the container. Now if the cask is purchased with consecrated money, it does take on the sanctity of second tithe. It must be resold so that consumables may be purchased in its stead. This general statement is then limited by B-F. T. distinguishes between casks of wine and casks of other liquids. Jugs which contain the items listed in D cannot be used for any other purpose since the produce in them either cannot be fully removed or leaves an unpleasant odor. As a result, the jugs must be sold along with their contents and so are not deemed to take on the status of second tithe from the coins. The general theme of the foregoing discussion is carried on in G-J. Now our attention is directed to various types of baskets used for dates. Produce is hard to remove from these baskets because of the basket's construction (G, H(l)) or because the produce has been mashed into it (H(2)). In such cases, the basket is deemed inseparable from its contents and so does not constitute a separate purchase.

25 D: rytk:wt; A: dwrk:wt, Lieberman (p. 721) suggests reading rwkb'wt or rykb'wt, which he translates as the fan-shaped or broom-like branches of the date-palm. Jastrow, p. 290, defines dwrk:wt as pomace. 26 The stalks, husks, etc. of grapes or olives would be pressed in order to extract their juice. The resulting mash was termed gpt. Loew discusses the wine made from these juices, Flora I, 96, and the use of the mash as fuel, II, 290. Instead of-being pressed, the refuse may be soaked in water to produce the temed-wine mentioned in

M. 1:3H.

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K-L restate the principle of M. 1:3G, the status of nutshells. The inedible refuse normally acquired with produce does not become sanctified when the produce is purchased with consecrated coins. A. One who acquires a deer in Jerusalem, does not need to eat [produce] in place of the hide. B. [If the deer is] slaughtered, he must eat [produce] in place of the hide. T. 1:11 (p. 245, 11. 34-35)

A wild animal is purchased in Jerusalem for use as ordinary meat. M. 1:3A-C declares that in this case the hide is not consecrated. This is the point of A B introduces a new consideration. The farmer purchases an animal which is already slaughtered. Now the meat surely can be purchased apart from the hide. In such a case, the hide does constitute a separate purchase and so is consecrated. A. They do not rent houses in Jerusalem [to those bringing offerings] because they [i.e., the houses] are [the property] of [all the] tribes. B. R. Lazar b. R. Simeon says, "Also not ('p t>) beds." T. 1:12 (p. 245, 1. 35p. 246, 1. 37) (B. Yoma 12a, Meg. 26a) C. The hides of sanctified animals innkeepers come and take them by force. T. 1: 13a (p. 246, 1. 37) (b. Yoma 12a, Meg. 26a)

A-C concern payment for room inJerusalem for people coming to the city to eat second tithe. Since places in Jerusalem cannot be rented, it was customary for the visitors to leave something behind for the innkeeper. According to T., hides from peace-offerings, declared to be unconsecrated in M. 1:3A-C, are normally left behind for this purpose. So strong was this custom that innkeepers could come and take the hides by force if the boarder was not willing to leave it on his own. M. M.S. 1:5-6 A. One who buys [with money in the status of second tithe] (1) water, or ~-) (2) salt, or (3) pieces of fruit attached to the ground, B. or ('w) pieces of fruit which cannot reach Jerusalem, C. has not acquired [the status of second] tithe [for these items]. D. One who buys [outside Jerusalem with money in the status of second tithe] pieces of fruit: (1) unintentionally (fwgg) [i.e., not realizing the coins were consecrated]let their payment (dmyhn) be returned to its [former] place [i.e., to the purchaser who bought them by mistake];

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(2) on purpose (mzyd)let [the pieces of fruit] be brought up and eaten in the [holy] place [i.e., Jerusalem]. E. And if the Temple does not exist (yn mqdi), let [the pieces of fruit] rot. M. 1:5 F. One who buys [outside jerusalem] a domesticated animal [with money in the status of second tithe]: (I) intentionallylet its payment return to its [former] place; (2) on purpose let [the animal] be brought up and eaten in the[holy] place (z: bkl mkwm). G. And if the Temple does not exist, let it be buried with its hide. M. 1:6 (b. Qjd. 45b~46a)

M. consists of two formal units: A-C and a doublet at D-G. The phrase, "One who buys" (hlwqh_), appearing at A, D and F, continues the pattern of M. 1:3 and 1:4. Again the issue is whether or not the status of second tithe is transferred to items improperly purchased with consecrated money. We deal with two cases, first with the purchase of items the farmer cannot eat in Jerusalem (A-C) and second with the purchase of edible food outside Jerusalem (D-G). A-C deal with items which are not proper foods (A) or foods which will not be edible by the time that the farmer gets them to Jerusalem (B). 27 In either case, what the farmer has brought cannot be eaten as second tithe in Jerusalem. 28 The result, M. claims, is that the status of second tithe has not been transferred from the coin. This is so because

27 Salt and water are explicidy excluded from the types of edibles which can be used to make an erub (M. Er. 3: I). The point is that for these purposes the householder may use only proper foods. 28 Maimonides wants to relate the rules of these pericopae to Scripture. He cites Deut. 14:26, which states, "and spend the money [consecrated as second tithe] on anything you desire [such as] catde, sheep, wine or intoxicating beverages. "From Scripture's data Maimonides concludes that items which the farmer may purchase as second tithe must be agricultural produce and must not be attached to the ground. On the basis of these criteria, he explains M.'s exclusion of water and salt, which are not agricultural produce, and of plants still growing in the ground, since they are not separated from the earth. Although Maimonides does account for the data, his explanation is overcomplicated. Mishnah is concerned simply that the farmer purchase as second tithe items which are in the category of food. Salt and water are excluded because they provide no nourishment, and plants still in the earth are not ready for use as food.

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the transaction itself is prohibited and thus has no legal effect. The purchased items are still unconsecrated while the coins remain sanctified. In order to rectify matters, the farmer must recover the coins and spend them properly. In D-G the farmer purchases edible produce (D-E) or animals (F-G), but does so improperly by buying them outside of Jerusalem. Whether or not the transaction has effect depends on the farmer's intention. If the purchase was made unintentionally, that is, if the purchaser did not realize he was using consecrated coins, the transaction has no effect, as was true in A-C. He must return the produce or animal, which remains unconsecrated, and receive back his sanctified coins. If he knowingly spent consecrated coins, however, the status of second tithe has been transferred. The farmer now has intentionally deconsecrated sanctified coins. These purchases may not be sold again but must themselves be taken to Jerusalem and consumed there. It is the farmer's intention when paying over the coins, then, which effects the transfer of status. Mter the destruction of Jerusalem, when food in the status of second tithe cannot be consumed, the farmer has no choice but to let such food rot. A. (1) They do not redeem [i.e., sell, produce in the status of] second tithe in Jerusalem in [add with Lieberman h;:;h; the present] age [i.e., after the destruction of the Temple], B. (2) and they do not separate [produce as] second tithe in Jerusalem in the present age, C. (3) and they do not deconsecrate [coins in the status of] second tithe in Jerusalem in the present age, D. (4) and they do not sell [produce in exchange for coins in the status of] second tithe in Jerusalem in the present age, E. (5) and they do not take [produce in the status of] second tithe out of (reading with E: m) Jerusalem in the present age [so that it can be sold outside the city; cf. M. 3:5]; F. and if he took [it] out [of the city], 10, [the produce] [is left to] rot [i.e., it may not be sold]. T. 3:13 (p. 260, ll. 44-48) (cf. T. San. 3:6) A. [If] they deconsecrate in Jerusalem coins [in the status of second tithe] with produce in the present age~ B. the House of Shammai say, "[Both] this and that [i.e., the coins and the produce] [are in the status of] second tithe." C. The House of Hillel say, "The coins [retain their status] and the produce [retains] its status." T. 3: 14 (p. 260, ll. 48-50) (y. M.S. 1:4)

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T. 3: 13A-E lists five rules. F is explicitly linked to E(5) but, as we shall see, refers to A-D as well. T. 3:14 goes over the ground ofT. 3: 13C. Mter the destruction of the Temple, produce in the status of second tithe no longer could be eaten (M. 1:5-6). In light of this fact, T. declares illegitimate all transactions in the destroyed city involving such produce. The farmer may neither separate second tithe in Jerusalem from untithed produce (B) nor may he buy produce in Jerusalem to be used as second tithe (C-D). Furthermore, produce in the status of second tithe which is brought into the city may not be sold (D) nor may it be taken out of the city again (E). The farmer who brings produce in the status of second tithe to Jerusalem after the destruction has no choice but to let it rot, as M. 1:5E and 1:6G have stated. T. 3:14 has the Houses dispute the consequences of a farmer's attempting to buy in the destroyed city produce for use as second tithe. The Shammaites declare that the coins the farmer spends are not deconsecrated, since the sale itself is prohibited. Nonetheless, the produce he purchases does enter the status of second tithe. In this way the farmer is penalized for his misdeed. 29 The Hillelites disagree. Since the transaction is not allowed to begin with, they hold that no change in status occurs on its account. The coins remain in their consecrated status and the produce remains unconsecrated. This same view is expressed m M. 1:5A-C. D. Sprouts of the service-tree (lwlby h::;rdyn)3° and the carob tree-before they have sweetened (E, D add: are not) purchased with money [in the status of second) tithe. Mter they have sweetened, they are purchased with money [in the status of second) tithe. E. But Colocasia (lwp) 31 and mustard and lupine, F. and all other preserved vegetables, G. whether after they have sweetened or before they have sweetened, are purchased with money [in the status of second) tithe. H. Safflower seeds (bnwt hry'; D: flry'; E: hdy') 32 are purchased with money 29 The outcome, according to the Shammaite opinion, is parallel to that of a case in which a farmer dedicates an animal to the Temple and then attempts to name a substitute for it. The original animal is not deconsecrated, but the substitute nonetheless enters the status of dedication. The basis of this law is Lev. 27:10. Cf. Neusner, Ho{y 1hings, IV, pp. 87-88. 30 Mespilus Monogyna. A common Palestinian bush or tree. The sprouts here probably refer to the young, prickly branches (Loew, Flora, III, p. 255). 31 Arum Colocasia. Loew, Flora, I, pp. 214-226, identifies Mishnalc luf with A Hygrophium and A. Palaestinium. 32 Carthamus Tinctorius. (Loew, Flora, I, p. 394ft:). The seeds of this plant are edible and thus may be acquired with second tithe coins. Since safflower is not planted for its seeds, however, they do not become unclean as food. So Lieberman, p. 725.

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K. L. M. N.

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[in the status of (Lieberman + D: second)] tithe, but they do not receive uncleanness as food. Safflower cakes-33 Said R. Yose, "R. Yohanan ben Nuri came to (',s_l) R. Halafta [and] said to him, 'As to safflower cakes, what is the rule concerning their being purchased (mh hn fylqhw) with [money in the status of second] tithe?' He said to him, 'They are not purchased [with such money].' He said to him, 'I also rule thus, but Aqiba has ruled they are purchased [with consecrated money]."' T. 1: 13b (p. 246, ll. 38-43) (D-G: T. Uq. 3:9; H: M. Uq. 3:5; I: y. Hag. 3:4 Palm tree with (qwr) 34 is purchased with [money in the status of second] tithe but does not receive uncleanness as food. Unripe date berries (kprrywt)l 5 are purchased with [money in the status of second] tithe and do receive uncleanness as food. R. Judah says, "Palm tree pith-lo, it is like wood in all regards except that it is purchased with [money in the status of second] tithe." 36 "Unripe date berries-lo, [they are] like pieces of fruit in all regards except that they are exempt from tithes." 37 R. Simeon said in the name of R. Leazar, "Saffron (kwrkwm) 38 is not purchased with [money in the status of second] tithe because there is no flavor in it; rather [it is] for decoration." Said R. Judah ben Gadish before R. Leazar, "My father's employees used to sell brine in Jerusalem [for consecrated money]." They said, "Who said [this], for maybe they sold fish with it [M. 1:5]?" T. 1:14 (p. 246, ll. 44-24 7' I. 49) (J-M: T. Uq. 3:10-ll, b. Er. 28b; L-M: M. Uq. 3:7; L: y. Sheb. 4:6; O:b. Er. 27a)

33 So Loew, Flora, I, p. 396. HD identifies h.lwt hry' with kwrkwm (saffron) mentioned in T. 1:14. The phrase is translated as "saffron-seed cakes" in JE, lli, p. 334. Lieberman (p. 725) does not identifY the item beyond saying that it was named after its distinctive shape. 34 "The white heart or terminal bud of a palm (cabbage tree) used as food," (Jastrow, p. 1340). MB explains that when the qwr is soft, it may be eaten when cooked. It does not become susceptible to uncleanness as food until it has been properly prepared. Loew wants to identifY qwr as a kind of gourd (Flora, I, p. 545). 35 MB explains that these unripe berries are similar to palm tree pith in that they need to be sweetened before being eaten. Unlike qwr, however, they are easily prepared by being placed in a warm oven (Loew, Flora, II, p. 342). 36 That is, one says the blessing said over fruit when one eats the qwr. They are like trees in that they do not contract uncleanness as food (so Albeck to M. Uq. 7:3). 37 They are exempt from tithes because they are not fully ripe (Albeck, to M. Uq. 7:3). 38 Crocus satinus. (Loew, Flora, II, p. 7f ).

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I discern three units in T.'s discussion: D-G, H-0 and P. The point of the first unit is made by the contrast between D and E-G. The young sprouts at D are not deemed to be foods until they sweeten and so are not purchased for use as second tithe until that time. The items at E-G are deemed to be foods even if they have a bitter taste and so are properly purchased with consecrated money. T.'s second unit (H-0) discusses various types of produce the status of food of which is in doubt. First we have items which are not considered to be foods even though they are edible (H-K). Being edible, they may be purchased with consecrated money, although they are not held to be susceptible to uncleanness as food. Next we consider items, such as unripe berries in L, which are deemed to be foodstuff. These, of course, are purchased with consecrated coins and also are susceptible to uncleanness as foods. Finally, 0, we have garnishes which are not considered to be foods at all. Consequently, they are neither purchased with consecrated money nor do they become unclean as foods. In the last unit (P), T. reads the law of M. 1:3-4 into M.'s prohibition against purchasing salt or water with consecrated coins (M. 1:5A). Brine, being a mixture of salt and water surely falls in this category. If the householder intends to purchase only the fish which is soaking in the brine, he may spend consecrated coins for the entire jug, even though he acquires brine along with the fish. A. One who purchases a domesticated animal for a peace-offering [with second tithe money outside of Jerusalem] by mistake [not realizing that the coins were consecrated], let its payment return to its [former] place; [if he

B. C.

D.

E.

did so] on purpose, let it be brought up and eaten in the [ho{y] place [= M. 1:6F]. [If this takes place] at the present time, let [the animal be left to] die [= M. 1:6G]. Said R. Judah, "Under what circumstances? When he intended to purchase it for [use as a] peace-offering to begin with. But if he intended to deconsecrate [second] tithe money [improperly by purchasing the animal for use as ordinary meat], whether by mistake or on purpose, let the payment return to its [former] place." If it was a blemished animal, whether [it was purchased with consecrated money] by mistake or on purpose, let the payment return to its (former] place. If they were unclean pieces of fruit, whether [they were purchased with consecrated money] by mistake or on purpose, let the payment return to its [former] place. T. 1:15 (p. 24 7' 11. 50-55) (C: b. Qj.d. 56a)

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A-C read the issue of M. 1:3-4 into the law of M. 1:5-6. The farmer has purchased the animal for a legitimate use, but he has done so outside of Jerusalem. The law of M. 1:5-6 applies. If the farmer intentionally misspent his sanctified money, the purchase is affected and the now-consecrated animal must be consumed in Jerusalem. If, however, the farmer was unaware that he was using consecrated coins, the animal remains unaffected by the sale. The farmer must return the animal and his still-consecrated money is refunded. Judah's elaboration in C applies to the opposite case. The farmer purchases the meat for an improper purpose to begin with (cf. M. 1:4J-K). Since this purchase will not allow the farmer properly to fulfill his second tithe obligation, Judah rules that no transfer of sanctity takes place at all. The animal is returned and the money refunded, whether or not the farmer was aware that he had used sanctified coins. This, as we have seen, is the Hillelite view in T. 3:14 and applies as well if the farmer purchases a non-food, such as water or salt (M. 1:SA-G). D-E make a related point. Blemished animals and unclean produce are not properly eaten as second tithe. If the farmer purchases such foods with consecrated coins, he in no way can fulfill his obligation. Consequendy, the sale is deemed to have no effect as regards the transfer of the status of second tithe to the food, as was the case in C. 1:7

A They do not purchase (1) male slaves, or (2) female slaves, or (3) real estate B. (4) or an unclean animal, C. with second tithe funds (dmy). D. And if he purchased [one of the above], let him consume in its stead [its same value in other produce]. E. They do not purchase (5) the sacrificial birds of zabim, nor (6) the sacrificial birds of zabot, nor (7) the sacrificial birds of women who are unclean after childbirth, 39 F. (some MSS lack:) (8) or sin-offerings, (9) or guilt-offerings

39 According to Lev. 15:14 and 29, men or women who suffered a flux remain unclean for seven days. On the eighth day, they bring two turdedoves or two pigeons to the altar to complete their purification process. A similar rule holds for a woman who has just given birth. When her period of uncleanness is over, she brings a lamb and a turdedove or pigeon to the Temple. If she is poor, she may bring a second turdedove or pigeon in place of the lamb (Lev. 12:8). One of the birds is designated as a sin-offering and the other becomes a burnt-offering. In either case, the animal is slaughtered, its blood is sprinkled on the altar and its meat is consumed by the priest.

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G. with second tithe funds. H. And if he purchased [one of the above], let him consume in its stead [its same value in other produce]. I. This is the general rule: Anything that is not suitable for eating, drinking or anointing which is [purchased] with money [in the status of] second tithe, let him consume in its stead [its same value in other produce]. M. 1:7 (b. Qjd. 56a; A-H: M. Sheb. 8:8)

The pericope consists of two balanced units, A-D and E-H, with their general rule articulated in I. The material here continues M. 1:5A-c's list of items which are not to be purchased for use as second tithe. In each case, the listed item cannot be used as food by the farmer. The first three are not foods at all. Unclean animals, while edible (4) are unfit for use as consecrated food. The remaining example (5-9) are eaten by priests and not by the person who brings them. If one of these prohibited items is purchased with sanctified coins, the farmer is obligated to purchase an equivalent value in edible produce and to consume the new produce in Jerusalem.

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There are two ways in which the farmer can fulfill his obligation to eat in Jerusalem produce declared second tithe. He may, first of all, carry the designated produce itself to Jerusalem and consume it there. Alternatively, he may transfer the status of second tithe from the designated produce to coins and take these to Jerusalem in place of the produce. Since coins are less bulky than produce, such a procedure greatly facilitates his pilgrimage. In Jerusalem the coins must be used to purchase a second batch of produce. This batch then enters the status of second tithe and is eaten as such, just as if it was the original batch. In the chapter before us, M. deals with the question of the proper disposition of these two items, produce and coins, which have the status of second tithe. M. 2: 1~4 first discusses restrictions on the use of produce designated as second tithe. M. 2:5~9 is concerned with the transfer of the status of second tithe from coins to other coins. This type of transaction is of interest because Scripture makes no provision for it. M. allows the exchange, however, on condition that it be conducted in a way analogous to the sale of produce. One rule is that the transfer must move from an item of lesser intrinsic value to one of higher intrinsic value. That is, just as the farmer gives fruit for metal, so may he give coins of cheaper metal, such as copper, for coins of better metal, such as silver. The last pericope of the chapter deals with the exchange, in Jerusalem, of coins in the status of second tithe for produce. M. 2: lA~C adduces the basic principle which governs the use of produce in the status of second tithe. Such produce must be consumed in Jerusalem in the way produce of its type is normally used. That is, the farmer must eat what is normally eaten, drink what is normally drunk and anoint with what is normally used as a lotion. This prevents the farmer from wasting or in some other way misusing, what is consecrated. M. 2:IF~H supplies an obvious adjunct to this principle, ruling that nothing may be added to produce in the status of second tithe which will prevent the produce from being used in its normal way. Spices may not be added to oil, for example, if they render the oil inedible. In line with this notion, M. 2: I /I~P assume that unconsecrated ingredients may be mixed with produce designated second tithe

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if this does not change the normal use of the consecrated produce. This material goes on to address a second issue: how we determine the value of the consecrated portion of the mixture. This is a problem if the farmer wants to sell the dish and finds that it is worth more than the sum of the cost of its ingredients. K -P rule that in such a case we reckon the monetary value of the consecrated ingredient on the basis of that ingredient's proportion to the whole. M. 2:2-4 are an appendix to this unit. They address themselves to the principle stated at M. 2: lA-C, that produce declared second tithe is used as food, drink or lotion, as appropriate. Simeon and sages now dispute whether or not anointing is indeed a proper mode of using such produce. Their debate in M. 2:2 is followed by supplementary material at M. 2:3-4. This added material serves two functions. First, it supplies laws which are needed to understand the debate at M. 2:2. At the same time, by establishing the normal use of vetches and fenugreek, it casts the debate in M. 2:2 into the terms of M. 2: 1's concern that consecrated produce be used only in its usual way. The second major unit of our chapter, M. 2:5-9, addresses two issues which naturally arise once we assume that the status of second tithe may be transferred from produce to coins and, thence, from the original coins to some other coins. The first is introduced at M. 2:5-6E. Consecrated and unconsecrated coins have become confused in a single batch. Under discussion is whether the status of second tithe continues to adhere to the specific consecrated coins that were lost in the batch (M. 2:5), or whether we consider the status of second tithe to be dispersed uniformly throughout the mixture (M. 2:6). The second concern appears in M. 2:6F-2:9. These pericopae spell out the kinds of coins to which the status of second tithe may be transferred. The rule is that outside of Jerusalem, the status of second tithe is always transferred from coins stamped on inferior metal to coins stamped on better metal, from copper to silver, for example. Inside Jerusalem, the procedure is reversed, allowing the farmer to receive small change when buying food in the city. In this way the exchange of coins for other coins is made to parallel the exchange of produce for coins. In each case the status of second tithe is transferred to items of greater material worth. The chapter's final pericope, M. 2:10, takes up the issue of how consecrated coins are exchanged in Jerusalem for produce to be eaten as second tithe. In the case before us, the farmer purchases produce but

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intends to eat only part of it as second tithe. At issue is whether or not the farmer can split up a single purchase into consecrated and nonconsecrated parts. M. rules that this is possible. The farmer may stipulate that only that part of the purchase which is actually consumed as second tithe is to take on that status. 2:1

A. B. C. D. E. F. G. H. I.

J. K. L. M. N. 0.

P.

Second tithe is permitted for eating and drinking and anointing; for eating that which is normally used for eating, for anointing with that which is normally used for anointing. One may not anoint with wine or vinegar. But he anoints with oil. They do not spice oil [in the status of second tithe which has been purchased as a food] nor do they buy spiced oil with money [in the status of] second tithe [for use as a food]. But he spices wine [in the status of second tithe]. [If unconsecrated] honey or spices fell into [consecrated wine] and increased [its value] (hsoyhw) the increase is [divided] proportionately [between the wine and the honey or spices]. Fish which were cooked with leeks [in the status of] second tithe (qplwlwt), 1 and they [the leeks] increased [the fish's value]the increase is [divided] proportionately. Dough [in the status of] second tithe which he baked and increased [its value]the increase is [accounted entirely] to the [dough designated as] second [tithe]. This is the general rule: Any [ingredient] whose benefit (soh_w) [to the mixture] is perceptible (nkr)-the increase [in value] (hsoh_) is [divided] proportionately. And any [ingredient] whose benefit [to the mixture] is not perceptible- the increase [in value] is [accounted] to the second [tithe]. M. 2:1 (A-B: T. Ter. 9:10; A-D: M. Sheb. 8:2; F: M. Ter. 11:1; j-K: y. Ter. 10:1)

The pericope consists of three units (A-C, D-H and 1-P) all of which develop a single point. Produce in the status of second tithe must be used only in the way produce of its type customarily is used. That is, once the farmer consecrates produce, he is obligated to use it in the

1

Allium Porrum. Also referred to as krty. See Loew, AP, pp. 226-228.

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way deemed proper for that type of commodity. This basic rule is stated explicitly at A-C. The following two units explore the application of this rule when the consecrated food is mixed with other ingredients, such that it is no longer in its pure, natural, state. As we shall see, such mixtures are deemed permissible if the farmer still uses the consecrated food in its customary way. D+ E first discuss the special case of oil. Oil is unusual in that it is customarily used both as a food and as an unguent (D-E). Consecrated oil thus can he used in one of two ways. If the farmer specifically prepares the oil for one purpose, such as for an unguent, however, he must then use it only for that purpose. Spicing oil, for example, gives it a fragrance which makes it into a desirable unguent. Oil purchased as a food may not be spiced, since this would make it into a lotion (F). Conversely, such spiced oil, which is prepared as a lotion, may not be purchased as a food (G). Spices may be added to wine, however, since this adds flavor to the wine but does not tempt the farmer to anoint with it (H). 2 We turn in 1-P to cases in which unconsecrated ingredients are added to consecrated foods in order to prepare a fancy dish. According to what we have just said, such mixtures are valid as long as the consecrated food is still used in its customary way. Such mixtures create a problem, however, if the farmer wants to sell the prepared dish and take the proceeds to Jerusalem to be used to purchase second tithe. The problem is to determine what proportion of the money the farmer receives for the dish must be taken to Jerusalem. We consider three 2 I owe this interpretation of the pericope to Martin Jaffee. Classical exegetes have read this pericope atomistically and thus have failed to note that A-C and D-H make the same point. They have thus interpreted these two blocks of material independently of each other. As to A-C, Maimonides, Bert., TYY and Albeck take the law to be that we do not force a farmer to eat consecrated food which has spoiled. The point, according to these commentators, is that since this food is no longer deemed a proper food, the farmer need not treat it as such and so may discard it as he would unconsecrated garbage. TYY adds that he also is not required to eat raw food that is normally cooked. We must reject this interpretation, however, since it has no basis in M.'s language and is in fact contradicted at B-C. The concern of D-H, according to Bert, TYY and Albeck, is that consecrated produce may not be wasted. M. thus prohibits adding spices to oil because some of the oil will be absorbed by the herbs and will thus be lost. Although this rationale is reasonable, it should apply as well to wine, which also is absorbed by added herbs. Since this is not a consideration in the case of wine, I do not see why it should be in the case of oil. On this basis, I have rejected their explanation. Further, by claiming that the point is that the added spices change the use of the oil, but not of the wine, I keep my explanation in line with the theme set forth in A--C.

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examples. In the first case (1-J) produce designated as second tithe has been improved by the addition of unconsecrated spices. When the food is sold, the amount of money to be taken to Jerusalem depends on the proportionate cost of the consecrated main ingredient to the cost of the unconsecrated relishes. Maimonides offers the following example: the consecrated produce is worth one seta' while the unconsecrated ingredients are worth three seta's. The mixture, however, is worth five seta's, a one-seta' increase over the cost of its ingredients. We now account 11/4 seta's' value to the second tithe in the dish and 33/4 seta's to the unconsecrated portion. As a result, 11/4 seta's of the purchase price of the dish becomes imbued with the sanctity of second tithe. The second example reverses the proportion of the ingredients. Now we have an unconsecrated main dish embellished with consecrated spices. The same principle is applied and the value of the various ingredients is determined by proportion. Our third example addresses the value of work, as opposed to physical ingredients, added to consecrated material. In the case before us, consecrated dough is baked into loaves with a resulting increase in value. M. rules that none of the increase in value is ascribed to the overhead expenses of baking. The reasoning is articulated in 0-P. Since the work is not physically present in the finished product, the entire selling price the farmer receives for the bread is deemed consecrated. 3 A. B. C. D.

They do not soak dates in order to produce date beer from them, and [they do) not [soak) raisins to produce raisin juice, but they crush them and make them into puree (1rym'). 4 Concerning spices, it is permitted [to soak them] because this is their [normal) mode of preparation (ml'ktn).

3 There is some disagreement as to the meaning of the term "perceptible" in 0-P. Maimonides, followed by Sens, Bert., TYY and TYT, interprets the rule to mean that the added ingredients must be physically present in the increased bulk of the mixture. Using the firewood used to heat the oven as an example, Maimonides explains that the wood is not allotted any value because it is not physically present in the finished loaves. MR rejects this interpretation, reading 0-P to require simply an increase in bulk (or flavor) in order for the increased value to be divided proportionately. He thus must explain the ruling in M-N on other grounds. He prefers to make a distinction between an agent (gwrm) and a flavoring. Only a flavoring is assigned a portion of the increased value in the case of increased size. Since Maimonides' firewood is not a flavoring, it is not given any value even though the dough is certainly expanded in size during baking. 4 "A drink or brew made of pounded groats and spices, a spiced drink" (Jastrow, p. 553). B. Ber. 38a indicates that trym' may be made of sesame, safflower or fruit kernels.

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E. [If one] ties the spices [in a bundle] and sets them in a cooking dish, F. if their flavor is dissipated, they are permitted [to be used in this way] G. and if [their flavor is] not [dissipated] they are prohibited [from being used in this way]. T. 2:2 (p. 249, 11. 11-14) (D-F: T. Ter. 9:7; T. Sheb. 6:6-7)

T. offers two exemplifications of M.'s rule that one must use consecrated produce in its customary way. The first contrasts the use of fruit with the use of spices. In A-B, the farmer proposes to soak consecrated dates and raisins and to ferment the resulting liquid in order to produce a kind of beer. Dates and raisins, however, are not normally prepared in this manner. Consequently, processing them in this way is prohibited. In D, the farmer wants to soak spices in order to add flavor to a dish he is cooking. This is allowed since this is the normal way in which spices are used. C adds a second contrast to the law of A-B. Now the farmer wants to mash the consecrated food into a puree. In contrast to the liquid of A-B, this puree will have in it the entire bulk of the fruit. This kind of preparation may be eaten, presumably, because the consecrated fruit, although mashed up, is still fully eaten as a food. 5 E-G are concerned with the proper use of spices purchased with consecrated coins. We want to know whether the spices may be tied up in a kind of bundle. The point of the contrast is that if the bundling up interferes with the spices' ability to flavor a cooking dish, it is prohibited. This is so because the spices now can no longer serve their normal function. A. A log of wine [in the status of second tithe] into which fell a log of [unconsecrated] honey B. and 1o, [the mixture] contains two logsC. the increase [in value] is [divided] proportionately (cf. M. 2:1H-J). D. A cooked dish of [consecrated] produce which was seasoned with unconsecrated spicesE. the increase [in value] is [divided] proportionately. F. But (w-) [a cooked dish of] unconsecrated produce which was seasoned with spices [in the status of] second tithe-

5 It is possible to interpret C to mean that consecrated food may be processed even in unusual ways as long as none of it is wasted. The fruit in A-B will be discarded as soon as it has sufficiently flavored the water. The entire bulk of the puree will be eaten, however. It is thus a licit use of second tithe, even if what is normally eaten is now made into a drink.

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G. its second tithe [ingredients] may not be released [from their sanctified status] through redemption (m'fr ftry s1w bpdywn; Lieberman: m'sr ftry sf' bpdywn:--may not be released without redemption). T. 1:16 (p. 247, ll. 55-57) (y. M.S. 2: 1)

T. is composed of three units: A-C, D-E and F-G. The first two units illustrate the rulings of M. 2: 1/I-P. Any increase in value due to a mixing of unconsecrated and consecrated produce is divided proportionately between the two types of ingredients. The third unit addresses itself to a somewhat different issue. We now have a dish made up of unconsecrated produce to which some consecrated spices have been added. The spices have totally dissolved into the dish and thus have lost their discrete identity. We want to know whether or not these spices, which no longer exist, can be deconsecrated. According to the manuscript reading, these spices may not be redeemed. This is so, MB suggests, because the spices lose their independent existence when they dissolve in the broth. Since the consecrated portion of the mixture may not be redeemed, the entire dish must be taken to Jerusalem and consumed there. Lieberman wants to amend the text to allow the redemption of the consecrated ingredients. He holds that since the spices were added into the dish, they are present in it, even if we cannot find them. Like all other added ingredients, these spices can be deconsecrated. A Second tithe and unconsecrated leeks (qpf:yt) which were mixed with each otherB. the increase [in value] is [divided] proportionately. T. 1:7 (p. 247, ll. 58-59)

Now we have two batches of the identical spice mixed together. Should there be an increase in value, it will be divided between the consecrated and unconsecrated spices in accordance with the rulings of M. 2: 1. A They do not make wine into lotion ('lntyt) 6 or oil into a [spiced] mixture ('rb). B. If he made wine into a lotion or oil into a [spiced] mixture, 6 Also 'lwntyt (Jastrow, p. 68) and 'lwntyt (Amch, I, p. 100). The word is a corruption of the Latin oenantius. Pliny describes the use of a lotion called "vinum oenanthius" in NH xii:l32. The use of 'lntyt as a kind of curative balm appears in several rabbinic sources (T. Shab. 12:12, y. Shab. 14:3). According to b. Shab. 140a, this mixture is made up of old wine, pure water and balsam and was prepared for use in the bathhouse. The opinion of the Gemara that the mixture was drunk after emerging from the water is probably erroneous, since all other sources agree that it was an unguent.

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C. he anoints with the oil but he does not anoint with the [lotion made from] the wine or vinegar. D. for oil is normally [used] for anointing [but] wine and vinegar are not normally [used] for anointing. T. 2:3 (p. 249, 11. 14-16) (T. Ter. 9:7) A restates the general principle of M. 2: lA-H. Consecrated produce must be used only in its normal way. If wine is turned into a lotion, it follows, the lotion may not be used for anointing. This is not the normal use of wine. Similarly, oil, which is normally eaten, should not be mixed with spices to produce a fragrant ointment. If the oil is mixed in this way, however, the resulting lotion may still be used for anointing. This is so because such use is still consistent with the normal use of oil. A. B. C. D. E. F. G.

H. I.

]. K. L. M. N. 0.

P.

[If] one had dough of [second] tithe [wheat] and baked itthe increase [in value] is [divided] proportionately [cf. M. 2: 1M]. [If] the bread fell apart, [or] the dish was burnt (nqdh_)the decrease [in value] is [accounted] to the second [tithe]. [If] one sorts out wheat and grinds it and sifts it, it is sufficient if he redeems it at the market price of [unrefined] wheat. R. Yose says, "In a place where they figure in the cost [of baking], "they redeem the wheat but they do not redeem the loaves [of bread] [at the market price of wheat]. "In a place where they do not figure in the cost [of baking], "they redeem even the loaves [at the market price of wheat]." Oil [in the status of] second tithe and clumps of unconsecrated spices which were mixed togetherthe increase [in value] is [divided] proportionately. "This is the general rule," said R. Yose, "Everything which adds to the volume [and] the benefit [of which] is perceptible (soflw nkr)- the increase is [divided] proportionately. "[If] it does not add to the volume, [even though] the increase [to the value of the mixture] is perceptible-the increase [in value] IS [accounted only] to the second [tithe]." T. 1:18 (p. 248, l. 58249, l. 65)

The pericope consists of four units: A-E, F-K, L-M and N-P. A-B restate the case introduced at M. 2: 1M, but arrives at a different conclusion. The increase in value produced by baking the dough is divided proportionately between the value of the consecrated dough and the unconsecrated work. That is, overhead expenses incurred in preparing

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the dough is treated by T. as is all other ingredients added to consecrated foods. It receives its fair share of an increase in value which occurs on its account. This is not the case, however, if the prepared dough suffers a loss in value (C-E). In this case, we do not apportion the loss equitably between the work and the dough. Overhead expenses must in all events be paid. The result is that if there is a loss in value, it is borne entirely by the consecrated portion. F-K investigate further steps in the production of bread. We begin with the processing of wheat. Normally, when wheat is refined, no increase in its value occurs. Since the worked wheat is sold at the same price as unworked wheat, we do not take into account when selling consecrated wheat the value of unconsecrated labor which went into its processing. The entire amount of money received for the loaf is consecrated. When the wheat is baked into bread, we take local business practices into account .. If baked goods are normally sold at a higher price than a comparable amount of flour, we regard the extra value as reflecting the work put into the preparation of the bread. The extra value, consequently, is divided proportionately between the overhead and the dough. If the bread is sold at the market price of wheat, however, there is no increase in value. In this case, we do not worry about according part of the price of consecrated loaves to overhead expenses, and the entire proceeds are in the status of second tithe. L-M is predictable from what M. has given us. The increase in value enjoyed when two ingredients are mixed together is apportioned between the two ingredients. 0-P restate the general principle of M. 2:1 /0-P. As we recall, M. 2: 1 stipulates that any increase in value accruing to a dish on account of its being prepared or cooked is divided proportionately between its consecrated and unconsecrated ingredients. This is true any time that the presence of both types of ingredients is discernible. T. now qualifies M.'s rule, limiting it to cases in which there has also been an increase in overall volume. The point, then, is that only if both types of ingredients are physically present in the mixture do we divide any increase in value between them. 2:2-4 A. R. Simeon says, "They do not anoint in Jerusalem with oil desig-

nated as second tithe." B. But the sages permit [them to anoint with oil declared second tithe]. C. They [sages) said to R. Simeon, "If [the ruling] is lenient in regards to heave-offering, which is subject to a more stringent rule [by allowing

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priests to anoint with it], should we not rule leniently for second tithe, which is subject to a less stringent rule [and allow the farmer to anoint with it]? D. He [R. Simeon] said to them, "No, (mh l'; other MSS read mh or /'), if [the ruling] is lenient in regards to heave-offering, which is subject to a more stringent rule, in a situation (mqwm) where it was lenient in regards to vetches (kriynym)l and-fenugreek (tltn), 8 should we be lenient in regards to second tithe in a situation where [the law] was not lenient in regards to vetches and fenugreek?

M. 2:2 A Fenugreek which is [in the status of] second tithe must be eaten [when] sprouting (smhwnym) 9 [and is preserved in cleanness]. B. And [fenugreek which is declared] heave-offeringC. the House of Shammai say, "Anything done with it is [done] m [a state] of cleanness, except for shampooing with it." D. And the House of Hillel say, "Anything done with it is [done] m [a state of] uncleanness, except for soaking it." M. 2:3 (cf. T. Uq. 3:13-14) A Vetches which are [in the status of] second tithe must be eaten [when] sprouting. B. But they enter Jerusalem and come out [i.e., once they have been brought into Jerusalem they may be taken out again]. C. [If] they become uncleanD. R. Tarfon says, "Let them be divided up among [pieces of] dough," E. and sages say, "Let them be deconsecrated (ypdw)." F. And [as for vetches which are declared] heave-offeringG. the House of Shammai say, "They soak and crush (spyn) 10 [them] m Viciae Eroilia, Loew, AP, P. 228. T rigonella fienum grecum. Loew, AP, pp. 316-317. 9 Jastrow, p. 1287, defines wzh.wn as the soft seed taken from the pod. Maimonides, Albeck, and TYY interpret M. to allow fenugreek declared second tithe to be eaten only when the plant is first sprouting. This interpretation is inadequate. We know that fenugreek, as well as vetches, remain digestible even after the plant has matured and the seeds become hard. M. 2:3-4 explicitly state that once the seeds are hard, all the farmer needs to do is soak them in order to make them edible again. The fact that the seeds of the mature plant must be prepared before they can be eaten does not relieve the farmer of the obligation to eat such plants declared second tithe in Jerusalem. Rather, M. establishes the time at which fenugreek, or vetches, become edible and enter into the category of food subject to the laws of second tithe. The logic of the law here throws light on the interpretation of M. Ma, 1:3. That pericope is generally understood to mean that the plant becomes liable to tithes as soon as its seeds are mature enough to sprout on their own. Yalon reflects this interpretation in his vocalization of tJmh in the pi'el. If we read the verb in the qal, "when the plant sprouts," the time of eligibility for tithes specified here will coincide with the time the plant becomes edible according to our pericope. 10 My translation follows Jastrow, p. 1539. Krauss suggests "cut" ("schneiden"), II, p. 130. Danby, p. 75, and Soncino, p. 209, give "rub." The idea is that the vetch is 7

8

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[a state of) cleanness, and they feed [them to cattle] in [a state of) uncleanness," H. and the House of Hillel say, "They soak [them] in [a state of] cleanness and crush [them) and feed [them to cattle] in [a state of) uncleanness." I. Shammai says, "Let them be eaten dry." J. Rabbi 'Aqiba says, "Anything done with them is [done) in [a state of) uncleanness."

M. 2:4 (F-J: M. Ed. 1:8) (cf. T. Uq. 3:13-14)

Simeon and sages dispute what M. 2:1E has taken for granted-that anointing is a proper mode of consuming consecrated oil. Their dispute at M. 2:2 A-B is followed by a debate at C-D. On its own, the debate is incomprehensible, since it refers to rules with which we are so far unfamiliar. An appendix at M. 2:3-4 has been added, therefore, detailing these rules, thereby enabling us to understand the debate. Deut. 14:23 declares that produce consecrated as second tithe must be eaten in Jerusalem. M. 2:2 now asks whether or not having liquid absorbed through the skin is a form of consumption equivalent to that of eating, and therefore a permissible use of second tithe. This question emerges from the case of oil, since oil may be either eaten as a food or rubbed on the skin as a lotion. In A, Simeon reasons that anointing is not equivalent to eating. It follows, in his view, that the farmer may not anoint with oil declared second tithe. 11 Sages reason to the contrary that allowing the oil to be absorbed through the skin is comparable to ingesting it orally. They therefore permit the farmer to anoint himself with oil declared second tithe. In C sages attempt to prove their point by adducing principles from the laws of heave-offering. They hold that what is true for produce consecrated in the status of heave-offering, which is eaten only by priests, is certainly true for produce consecrated in the status of second

worked in such a way that the shell around the seed is cracked, making the seed more digestible. "Crush" seems to convey this sense best. 11 Maimonides offers another interpretation of Simeon's rule. He is concerned that the consecrated oil will rub off onto the hands of the masseur. In such a case, a person other than the owner will have derived benefit from the oil, in violation of the laws of second tithe. Albeck argues that the farmer might leave Jerusalem with unabsorbed oil still on his skin. Should the farmer incidentally brush up against someone, consecrated oil will have been consumed outside of Jerusalem, again in violation of the laws of second tithe, To avoid this possibility, Albeck has Simeon ban anointing with oil designated as second tithe altogether.

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tithe, which is eaten by ordinary farmers. They point out that oil declared heave-offering may be used as a lotion. It follows, in their view, that oil declared second tithe may also be used as a lotion. Simeon, D, counteracts sages' argument by showing that what is true for produce declared heave-offering is not necessarily true for produce in the status of second tithe. To do so he turns to the laws operative in regard to fenugreek and vetches. Like oil, these plants may either be eaten or may be used as a non-food. Fenugreek is used as a shampoo and vetches serve as cattle fodder. Simeon states that when fenugreek and vetches are consecrated as heave-offering, they may, in fact, be used for either of their purposes. Yet, when they are in the status of second tithe, they may be used only as a human food. It follows, therefore, that the status of second tithe imposes upon produce in that status restrictions which the status of heave-offering does not. It follows, furthermore, that if these plants are restricted to use as a food when consecrated as second tithe, oil too should be restricted to use as a food when consecrated as second tithe. We have taken for granted that vetches and fenugreek declared heaveoffering may be used as a food or as a non-food, but that when they are in the status of second tithe they are used only as a food. The appendix at M. 2:3-4 supplies us with these facts. M. 2:3A first states that fenugreek declared second tithe enters the status of food as soon as the plant begins to sprout and must be eaten at that time. The notion that fenugreek in the status of second tithe is to be used as a food is the stringency referred to by Simeon in M. 2:2D. M. 2:3B-D take up the topic of fenugreek which has been declared heave-offering. Both Houses agree that such fenugreek may be either eaten or used as a shampoo. This is the fact invoked by Simeon in M. 2:2D. The dispute deals with the secondary issue of when fenugreek declared heaveoffering is deemed to be a food, and so is susceptible to uncleanness, and when it is deemed a nonfood, and so cannot be rendered unclean. The House of Shammai hold that since fenugreek may be eaten by humans, we must treat it as a food. That is, we must preserve it in a state of cleanness unless it is clearly being used for some other purpose. The Hillelites base their reasoning on the more usual use of the plant as cattle fodder. Since fenugreek is not normally used as a human food, they deem fenugreek to be insusceptible to uncleanness as food unless it is actually being prepared for human consumption. 12 12

The Houses' dispute here reflects a basic philosophical disagreement over the cri-

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M. 2:4 now gives us the pertinent rules for vetches. We consider first vetches in the status of second tithe. A declares that such vetches are a human food, and so must be eaten, as was true of fenugreek in the status of second tithe. B qualifies A's rule, however, declaring that vetches in the status of second tithe are not treated as are consecrated foods. That is, unlike consecrated foods, vetches brought into Jerusalem may be taken out again (cf. M. 3:5-6). 13 M. 2:4C-E carry forward A's notion that vetches consecrated as second tithe are treated as food. At issue is what the farmer must do if the consecrated vetches become unclean. Such vetches cannot be used as second tithe. Tarfon suggests that the unclean vetches be broken into batches of less than an egg's bulk. This is the minimum volume which conveys uncleanness. 14 Since vetches in this form no longer convey uncleanness, they may be mixed in with other produce and consumed as second tithe. Sages (E), however, rule that the unclean vetches must be deconsecrated and clean foods then purchased in their stead. This is the normal procedure for disposing of foods in the status of second tithe which become unclean. 15 M. 2:4F-J are concerned with vetches which are designated heaveoffering. Again we assume that such vetches may be used either as a food or as a non-food. 16 As in M. 2:3B-D, the question before us is

teria by which one determines the primary status of an object which has several possible uses. The view adopted by the Shammaites is that we treat an item according to the use which involves the most restrictions. In this way, we are in all events sure not to transgress the law. Food is susceptible to uncleanness, for example, and therefore must be handled differently than are non-foods so that it does not become unclean. Since fenugreek may be used as a food, it follows that Shammaites treat this plant as if it were a food and so preserve it in a state of cleanness. The Hillelite position is that an item is categorized according to its most common use. Since fenugreek is most commonly used as a shampoo, the Hillelites will assign fenugreek the primary status of a non-food. This same issue appears in M. Toh. 8:6. See Neusner, Purities, XI, p. 193f. 13 This rule is based on Scripture's statement that consecrated produce may be sold only if the farmer is unable to transport the produce itself to the city. It follows that once the farmer has brought the produce inside the city, he forfeits his option to sell it. This remains so even if the farmer subsequendy takes the consecrated food out of the city again. See my discussion below in connection with M. 3:5-6. 14 An egg's bulk is the standard measure used by M.'s formulators for the minimum volume of unclean food which can convey uncleanness to food with which it comes into contact. See, for example, M. Toh. 3:4. 15 Cf. M. M.S. 3: I 0. 16 The question whether or not a priest may feed his heave-offering to catde is never explicidy discussed in M. Our pericope, as well as M. Ter. 11:9, does allow vetches declared heave-offering to be used as catde fodder. The implications of this rule are read in two ways. Albeck, MS., Sens, TYT, and TYY claim that the law here makes a specific exception for vetches and that heave-offering may not normally be used to

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when the plant is considered a food, susceptible to uncleanness, and when the plant is deemed not to be a food, and thus insusceptible to uncleanness. M. presents us with four opinions. The extreme positions are held by Shammai and Aqiba, with Houses holding intermediate views. Shammai (I) holds that since the vetches may be eaten, we always deem them a food, and they must be preserved in cleanness. Aqiba (J), on the other hand, bases his opinion on the normal use of vetches. Since this plant is generally used as cattle fodder, he rules that the vetches are always insusceptible to uncleanness as food. 17 The Houses hold, however, that vetches must be treated according to the specific use the priest intends to make of them. Both Houses agree that feeding vetches to cattle removes them from consideration as a food. They also agree that soaking the vetches signals the priest's intention to use the vetches as food, and they now are susceptible to uncleanness. The Houses debate the implications of crushing the seed pods. The Shammaites interpret this procedure as being a step in preparing the plant for human consumption. The Hillelites take the opposing view and hold that crushed vetches are still not a food and are therefore insusceptible to uncleanness. The fact that the Houses are made to debate with Shammai and Aqiba indicates that this unit is an artificial construction. As we have seen, the Houses' dispute in M. 2:3-4 concerns the characteristic use of fenugreek and vetches, plants which may be used in a number of different ways. The issue is important because the plant's normal use determines how that plant is to be handled when it enters a consecrated status. The notion that consecrated produce is handled according to its normal use is precisely the principle adduced at M. 2: lA-C. The placement of M. 2:3-4 here, then, is a fine piece of redactional work. Not only do these two pericopae serve as an explanatory gloss to M. 2:2, but they also carry forward the theme introduced at the opening of the chapter.

feed cattle. Maimonides takes the opposing view, that M. here specifically includes vetches within the general rule that heave-offering is available to the priest for use as fodder. The logic of the law supports Maimonides' position. Heave-offerings are given to the priest in order that he may support himself and his household. Since the priest's cattle are dependent upon him for their sustenance, it follows that the priest may feed them from his heave-offering income. 17 The susceptibility of vetches to uncleanness as a food is debated by Judah and Simeon in T. Uq. 3:13. Judah there agrees with our Shammai that vetches are susceptible to uncleanness. Simeon holds the opinion ascribed to Aqiba in our pericope. See also T. Uq. 3:14.

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A. Fenugreek [in the status of] heave-offering with which a priest's daugh-

ter shampooed her head 18B. the daughter of an Israelite is not permitted (rfyyt) to shampoo [with the same fenugreek] after her [the priest's daughter], C. but she rubs (m'gnt) her hair against her [the priest's daughter's] hair [and acquires benefit from the fenugreek in this way]. T. 2:la (p. 248, 11. 1-2 (T. Ter. 10:4) Heave-offering is set aside for the exclusive use of priests and their dependents. Thus fenugreek in the status of heave-offering is used as a shampoo only by members of a priest's family. The point of B is that this restriction holds even after the priest's family has derived benefit from the plant. As long as the plant has use, it is reserved for the priests. Once the priests daughter has soaped her head, however, she no longer has any use for the lather (C). This being the case, the Israelite woman may rub her head up against the soaped-up hair of the priest's daughter and so acquire some of the lather for herself. D. Fenugreek which is [declared to be] second tithe mtry be eaten [while it is still] in bud. E. And [fenugreek] [declared to be] a heave-rffering-

F. "the House of Shammai says, 'Anything done with it is [done] in [a state of] cleanness,' G. "and the House of Hillel says, 'Anything done with it is [done in [a state of] uncleanness, except for shampooing with it' [= M. 2:3]," H. the words of R. Meir. I. R. Judah says, ]. "The House qf Shammai strys, 'Anything done with it is [done] in a [state if] cleanness, except for shampooing with it,' K. and the House if Hillel strys, 'Anything done with it is [done] in a [state if] uncleanness, except for soaking it' [= M. 2:3C-D]." T. 2:lb (p. 248, 1. 2p. 249, 1. 6) (y. M.S. 2:3) Meir assigns to the Hillelites the opmwn M. 2:3 ascribes to the Shammaites. Judah (I-K), however, agrees with the form of the dispute we have in M. L. Vetches which are [in the status if] second tithe should be eaten [when] sprouting [M. 2:4AJ.

18 Pliny, NH, XXIV:l87, describes the use of fenugreek as a shampoo: " ... the meal with wine and soda quickly removes scurf and dandruff on the head."

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M. [As for vetches declared] heave-qffering [M. 2:4F]N. The House of Shammai say, "7hry soak [them] in [a state if] cleanness, and thry crush andfled [them to cattle] in [a state if] uncleanness [M. 2:4H]," 0. And the House of Hillel say, "7hry soak and crush [them] in [a state qf] cleanness, and thry fled [them to cattle] in [a state if] uncleanness [M. 2:4G]" [ed. princ. adds: the words of R. Judah]. P. R. Meir says, "7he House qf Shammai sqy, '7hry soak and crush [them] in [a state qf] cleanness, and thry fled [them to cattle] in [a state qf] uncleanness [M. 2:4G]. "' Q And the House of Hillel say, "Atrything done with them is [done] in [a state qf] uncleanness [M. 2:4J] ." R. R. Yose says, "This is the version (mfnt) of R. Aqiba. S. "Therefore he ruled that they may be given to any priest [even an 'am ha'areJ:], 19 but (w-) the sages did not accept his opinion (!' hwdw lw)." T. 2: I c Ip. 249, II. 6-10) (Q-R: cf. M. Hallah 4:9) In M. the Houses agree that vetches declared heave-offering are used either as a food or as cattle fodder. They disagree as to when it is to be deemed a food and thus susceptible to uncleanness. T. now introduces two alternate versions of the Houses' dispute. We deal first with Meir's version (P-Q) because his version differs most radically from the dispute as it appears in M. Although he does not change the view of the Shammaites, he assigns to the Hillelites the position held by Aqiba in M. 2:4], namely that vetches declared heave-offering are never deemed a food. Judah, in N-0, disagrees with Meir's characterization of the Hillelites as Aqibans. He makes the Hillelites agree with the Shammaites that vetches declared heave-offering are sometimes deemed food and sometimes deemed cattle fodder. They disagree only on how crushing the seeds affects the plant's status. Yose, in R, claims that Meir's version of the dispute is the one known to Aqiba. This is hardly surprising since, according to Meir, the Hillelites and Aqiba stand in agreement. Y ose goes on to use this opinion to explain another of Aqiba's rulings. Since Aqiba does not consider vetches in the status of heave-offering ever to be susceptible to uncleanness, he rules that they may be given even to a priest who is not careful about the laws of uncleanness. 2:5-6 A. Unconsecrated coins and coins [designated as] second tithe which [were mixed together] and [then] were scattered19

Lieberman, TK, p. 249.

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B. whatever he collects is collected as second tithe until he has restored [the value of the lost second tithe], C. and the remainder [of what he collects] is unconsecrated. D. If he mingled [consecrated and unconsecrated coins together] and scooped them up [by the handful] (!Jpn)E. [he deems what he has in each handful to be consecrated or unconsecrated] by proportion. F. This is the rule: Those [items] which are collected [one by one] [are accounted first] as second tithe. Those [items] which are intermingled [and scooped up in bunches are deemed to be consecrated or unconsecrated] by proportion. M. 2:5 A A sela' which is second tithe and [an] unconsecrated [sela'] which were confused [such that the consecrated coin could not be identified]B. he brings a seta's worth of [copper] coins and says, C. "The sela' which is second tithe, wherever it may be, is deconsecrated with these coins." D. And [after consecrating the copper coins} he selects the finer [coin] between [the two seta's] (sbhn) E. and deconsecrates [the copper coins] with it. F. For they ruled, "They deconsecrate silver with copper [only] out of necessity. But [if they do deconsecrate silver with copper] it may not remain so, but they must immediately (!J.wzr w-) deconsecrate [the copper coins] with silver [coins]." M. 2:6 (b. B.M. 55b-56a; D-E: y. B.M. 4:5; cf. y. M.S.

2:7)

Consecrated coins have become confused with unconsecrated ones such that we can no longer distinguish which is which. We need to know whether the status of second tithe still adheres to those specific consecrated coins that are lost or whether we hold the status of consecration to be dispersed throughout the batch. The answer to this question determines how we go about replacing the lost consecrated money. If we hold the status of second tithe no longer is localized in specific coins, then any coins in the batch can be designated to replace the lost money (M. 2:5). If, on the other hand, the status of second tithe remains associated with the specific coins that were lost, these must be deconsecrated and their status transferred to other coins (M. 2:6). We will consider each of these proposed solutions in turn. 20

20 TYT attempts to reconcile the two opposing views found in M. In his view, the preferred method is that outlined in M. 2:5. The farmer picks coins from the mixture

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According to M. 2:5, the farmer replaces the lost consecrated coins by randomly choosing from the mixture an amount of money equal in value to that which was lost. These coins are deemed to be consecrated in place of the original coins. For this solution to work, we must assume that the status of second tithe, which once inhered in the lost money now no longer is localized in specific coins. As a result, all of the coins in the mixture are of equal status, such that it is immaterial which specific coins the farmer draws from the batch to designate as second tithe. The conception is that the mixture of coins is analogous to a batch of untithed produce, which also has the consecrated status of tithes dispersed within it. 21 Just as the farmer randomly chooses an appropriate amount of produce from the batch to be heave-offering or tithes, so may he choose an appropriate value in coin from the mixture to replace the lost second tithe. This new batch is then deemed fully consecrated. This he does in either one of two ways, depending upon the circumstances of his retrieval. In A-C the farmer retrieves coins from the mixture one at a time. He designates each coin as second tithe until he has consecrated the appropriate amount of money he needs to replace what was lost. In the second case (D-E), the farmer scoops up a handful of coins from the pile. We assume that he has in his hands both some of the lost consecrated coins and some unconsecrated coins in the same proportion as these exist in the original mixture. This being the case, the farmer may randomly designate from what he has in his hand an appropriate proportion of coins to be second tithe. He continues to designate coins in this way until he has replaced the full value of the lost coins.

and designates them as second tithe in place of the lost money. In order to carry out the procedure properly, the farmer must declare that if the coins he selects are already consecrated, they are to remain so, and if they are unconsecrated, they are to take on the status of second tithe from the lost coins (cf. y. M.S. 2:6). It is likely, however, that the farmer will forget to make this declaration if he has to pick out only one coin. To make sure that the status is transferred properly if only two coins are involved, therefore, he must use the longer method described in M. 2:6. 21 Holiness is conceived of in Mishnah as a kind of physical quality which is uniformly dispersed throughout a collectivity. It is concentrated and localized in a certain portion of the batch by the owner's oral declaration. This charged portion is then separated as the appropriate consecrated gift. I owe this description of the rabbis' conception of holiness to Richard Sarason. His inclusions are presented in detail in a paper entided, "Mishnah and Scripture: Preliminary Observations on the Law of Tithing in Seder :(era'im," delivered at the Fourth Max Richter Conversation in Providence, R.I., June 1978 published in W. S. Green, Approaches to Ancient Judaism II (Chico, Scholars Press, 1980).

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In M. 2:6 the farmer has two similar coins, one consecrated and one unconsecrated, and no longer knows which is which. Again the question is how the farmer recovers his consecrated money. The pericope proceeds under the assumption that sanctity still adheres to the individual coin which is lost. This is so, presumably, because the farmer had at one time designated that specific coin to be consecrated. As a result, the farmer may not simply pick anyone of the coins and declare it to be second tithe. Rather, he must deal with the coin which is consecrated and which is now lost. This he does by first deconsecrating the lost coin, transferring its status to other coins. Now both coins in the batch are unsanctified. The farmer then selects the finer of these two coins and consecrates it as second tithe in place of the other coins. The procedure outlined above provides the formulator of the law with an opportunity to make a second point in connection with the transfer of sanctity from one coin to another. Such a transfer should not take place from a coin of better metal (e.g, silver) to a coin of baser metal (e.g., copper) (F). The point is that the sanctity must always travel from items of less intrinsic worth to items of greater intrinsic worth. 22 The law here is based on an analogy with the sale of produce. When the farmer sells produce, he transfers the status of second tithe from items of little intrinsic value, fruit, to items of greater intrinsic worth, metal. Similarly, when he transfers consecration between coins, the transfer must take place from coins of baser metal to coins of finer metal. A. Unconsecrated coms and coms dedicated 23 [to the Temple] which became scattered22 The law here reflects the Greek conception that all items have two values, their intrinsic, material value and their market, or utility, value. This view derives from Plato and is adopted by Aristode (cf Politics, Bk. I, Chap. 9). This conception yields the result that a coin has two different values. On the one hand there is an intrinsic worth in its metal and. on the other hand, it has a particular face value. A dinar in silver coins and a gold dinar thus have equivalent face-values but may have different values in terms of their material. The point of the law is that if the status of second tithe is being transferred from one set of coins to another, the receiving coins must have a higher intrinsic worth than the original coins, even though the face value of the two sets is identical. 23 The law refers to items which are dedicated for the use of the Temple. These items are designated either as an offering or as a source of income for the maintenance and upkeep of Temple property. Since dedicated items belong to the Temple and are used solely for its benefit, they are deemed to be holy, and in this regard are analogous to produce consecrated as second tithe. Like second tithe, dedicated items can be deconsecrated by transferring this status to coins. As far as the law here is concerned, dedicated items are exacdy parallel to items designated as second tithe.

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B. whatever he collects is collected as dedicated [coins] [cf. M. 2:5A-B], C. whether it be coins [mixed with] coins, pieces of fruit [mixed with] pieces of fruit, or pomegranates with pomegranates, or anything which does [GRA, MB, HD, Lieberman add: not] intermingle (fybll). D. But [if it is a substance] which does [delete: not] intermingleE. whatever he collects is collected as both [dedicated and unconsecrated in proportion], F. and whatever is in excess, is in excess for both [dedicated and unconsecrated in proportion] . T. 2:4 (p. 249, 1. 16p. 250, 1. 19) T. goes over the ground of M. 2:5-6, applying the rule of each pericope to a specific type of commodity. In this way, T. accounts for M.'s contradictory rules. We begin at A-c with discrete items, such as coins. Unconsecrated coins and coins dedicated to the Temple have become scattered together such that we no longer know which is which. As at M. 2:6, we hold that the status of dedication continues to adhere to the originally consecrated coins. Since we do not know which specific coins are dedicated, B rules that we must treat all the recovered coins as though they are dedicated to the Temple. D considers the complimentary case. The intermingled items no longer retain their discrete identities. The result is an homogenous mixture, composed of a certain proportion of dedicated ingredients and a certain proportion of unconsecrated ingredients. We now follow the procedure described in M. 2:5. The farmer scoops up handfuls of the mixture and dedicates the appropriate portion out of each handful. He continues to do so until he has replaced what was lost. If the full value of the dedicated items has been recovered and some of the mixture still remains (E), we assume that the remainder has the same composition as the rest of the mixture had. The farmer continues to divide it into consecrated and unconsecrated batches by proportion until the mixture is used up. A. A seta' which is [in the status if] second tithe and [one] which is unconsecrated which were mixed togetherB. he brings a seta"s worth if [copper] coins [M. 2:6A-B]. C. Ben 'Azzai says, "[He brings] two [seta's worth of copper coins]" D. A seta' which is unconsecrated and [one] which is dedicated [to the Temple] which were mixed togetherE. he selects the finer [coin] from them [the two seta's] and says [M. 2:6D], F. "If [this] is dedicated, lo it is dedicated and if not, the dedicated [coin], wherever it may be, is deconsecrated with this [coin]."

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G. And the second [sela']- lo, it is permitted [to be used as an unconsecrated coin]. T. 2:5 (p. 250, ll. 19-22) (C: y. M.S. 2:7) H. A seta' which is [in the status of] second tithe and [one] which is dedicated [to the Temple] which were mixed together!. he brings a [sela"s] worth of [copper] coins and says, J. "The seta' which is second tithe, wherever it may be, IS deconsecrated with these coins [M. 2:6C]." K. He selects the finer of them [the two sela's] and says, L. "If [this] is dedicated, lo it is dedicated, and if not, the dedicated [coin], wherever it may be, is deconsecrated with this [coin]." M. He picks up the second [seta'] and deconsecrates the [copper] coins with it. T. 2:6 (p. 250, ll. 22-26) N. A sela' which is second tithe and [one] which is unconsecrated and [one] which is dedicated [to the Temple] which were mixed togeth~ 0. he brings a sela"s worth if [copper] coins and says, P. "1he sela' which is second tithe, wherever it mqy be, is deconsecrated with these coins." Q He selects the finest [coin] among them [the three seta's] [M. 2:6A-D] and says, R. "If this [coin] is dedicated, lo, it is dedicated; and if not, the dedicated [coin] wherever it may be, is deconsecrated with this." S. He [then] picks up the second [sela'] and deconsecrates the [copper] coins with it. T. And the third coin- lo, it is permitted [to be used as an unconsecrated coin U. For they ruled, "They deconsecrate copper [coins with silver [coins], and silver [coins] with gold [coins]V. "silver [coins] with copper [coins] out of necessity-(M. 2:6F) W. "but not gold [coins] with silver [coins]." X. R. Eleazar b. R. Simeon says, ':Just as they deconsecrate silver [coins] with copper [coins], so may they deconsecrate gold [coins] with silver [coins]." Y. Rabbi said to him, "Why do they deconsecrate silver [coins] with copper [coins]? Z. "Because they deconsecrate silver [coins) with gold [coins]. AA. "They may not deconsecrate gold [coins with silver [coins] because they do not deconsecrate gold coins) with copper [coins]." BB. R. Eleazar b. R. Simeon says, "Gold [coins consecrated] as second tithe-they deconsecrate them with [copper) coins in Jerusalem." CC. Under what circumstances? DD. In the case of doubtfully tithed produce. EE. But in the case of certainly untithed-lo, it is prohibited. FF. In the case of doubtfully tithed produce. they even deconsecrate edibles with edibles.

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GG. Gold coins [consecrated) as second tithe from doubtfully tithed produce which one made into utensilsHR. it has no [means of] redemption. II. If it was of silver-lo, this is permitted [viz to redeem the utensils made from the silver coins). lJ. Second tithe from doubtfully tithed produce which became mixed together with [second tithe) from certainly untithed produceKK. Let them be consumed according to the [rule of the] more restrictive among them. T. 2:7 (p. 250, 1. 26p. 251, 1. 39) (X-BB: y. M.S. 2:7; cf. M. Dem. 1:2) These three T oseftan pericopae actually form one complex discussion centered on the proper handling of consecrated coins which are lost. Three smaller essays are discernible: A-T, U-AA, and BB-KK. I will discuss each of these essays separately. The first essay, A-T, is made up of four subunits, each discussing a different combination of coins which have become mixed together. In each case, we assume that the sanctity adheres to specific coins. The purpose of this unit is to define the procedure by which the proper value of each status is restored. The first case, A-C, restates the situation presented in M. 2:6-second tithe and unconsecrated coins. Ben 'Azzai's gloss in C requires two seta's of copper coins in order to deconsecrate the second tithe, while M. only wanted one sela"s worth. Ben 'Azzai reasons that since both seta's are in a state of doubtful sanctity, both coins must be deconsecrated. The second case is presented in D-G. Now an unconsecrated coin and a dedicated coin have been mixed together. Since the dedicated coin may be deconsecrated with any commodity, it is not necessary to provide copper coins. The farmer is able to rededicate the seta' by simply choosing one of the silver coins and reciting the formula in F. The third case, at H-M, suggests a more complex problem. Now both coins fall into a status of sanctity, one being consecrated as second tithe and the other being dedicated. First the farmer must deconsecrate the coin sanctified as second tithe through the agency of copper, as required by M. We now have the situation of D-G-an unconsecrated coin and a dedicated coin mixed together. The procedure described in D-G is repeated. The finer coin is selected for the dedication, rather than being reserved for the consecration as second tithe. This is so because the dedicated coin enjoys a higher level of sanctity, being at the disposal of priests only and not of laymen, as

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is the case with second tithe. The remaining coin is now available to become second tithe in place of the copper coins. The last unit of this essay, N-T, has coins of all three statuses mixed together. The procedure here is similar to those already described. First, the second tithe is deconsecrated. Then, the finest coin is selected and rededicated through the recitation of the standard formula. One of the remaining coins is consecrated as second tithe in place of the proper coins and the last coin is deemed to be unconsecrated. Our second essay begins at U. The discussion centers around the kind of coins that can properly deconsecrate other coins which are imbued with the sanctity of second tithe. Two principles govern the formulation of this essay. There is general agreement that a coin may be deconsecrated by a coin stamped on a more valuable metal. In this case, sanctity is transferred to a commodity of greater desirability. The second datum in our essay is that silver coins may be deconsecrated with copper in cases of necessity. The debate between Eleazar and Rabbi centers around the propriety of other types of transactions in which a coin of baser metal is used to deconsecrate a coin of better material. Eleazar argues that just as silver is deconsecrated by copper, so may any coin be deconsecrated by one stamped on a baser metal. Rabbi argues that silver is an exception. That is, silver coins may be deconsecrated with copper coins, but gold coins, for example, may not be deconsecrated with silver. This is also the VIew of the Shammaites in M. 2:7. 24 The final essay runs from BB-KK. This essay finds a place here because it continues Eleazar's rulings on the deconsecration of gold coins with copper coins. The theme of this essay, however, concerns

24 According to Lieberman, who reads this essay in light of b. B.M. 44b, the discussion revolves around the relationship of coins versus commodities (pry). That is, one metal may be deconsecrated by another only_ the first metal is deemed a commodity in relation to the second. Thus, for example, gold may deconsecrate silver because the transaction is analogous to a coin, in this case gold, acquiring a commodity, silver. Silver, however, cannot deconsecrate gold because commodities do not purchase coins. If we apply this logic to the debate in our pericope, the dispute works out as follows: R. Eleazar considers copper to be a coin in relation to all other metals because copper coins are extremely common. Thus copper can deconsecrate silver and gold. Rabbi deems gold a coin in relation to copper and silver because of its greater desirability. Consequently, gold may not be deconsecrated by other metals, which are commodities in relation to it. Both gold and copper are coins in relation to silver, allowing silver to be deconsecrated by either metal.

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the special consideration given to second tithe produce which is demaci, doubtfully tithed. If the produce is known to be untithed, then that which is removed in the name of second tithe is clearly second tithe. If, however, the produce is in a doubtful status, we take into consideration the fact that tithes may have already been removed. Now the material which was removed may not be second tithe at all. Consequently, the doubtfully removed second tithe is treated with greater leniency. Three cases of leniency are enunciated: BB, FF and II. In the first case, T. allows gold coins of doubtful status to be deconsecrated by copper coins, contrary to the principle that coins of lower value do not deconsecrate coins of higher value. FF allows produce designated as second tithe to be deconsecrated by other produce, even though comparable items usually do not deconsecrate each other. GG-11 has the gold or silver coins used to deconsecrate the doubtful second tithe melted down and formed into a utensil. In the case of gold coins, the melting and recasting have changed the status of the gold. Since the gold is no longer considered a coin, it may not be deconsecrated with other coins, and the metal must remain consecrated. This is not true in the case of silver, however, According to MB, the silver utensil loses its status as coin but gains the status of produce. Since produce may be deconsecrated, even with other produce (as in FF), the silver utensil may be deconsecrated. Lieberman interprets this lemma in light of R. Dosa's ruling that second tithe produce may be acquired with a poorly minted coin ('.rymwn) (T. 1:4), The silver utensil, according to Lieberman's reading, may be considered a type of '.rymwn and thus a valid coin in the view of R. Dosa. JJ~KK return us to the issue which introduced this long discussioncoins of different statuses being mixed together. Through this device, the redactor signals the end of this long redactional unit. If the two types of second tithe have become mixed together, the entire mixture is treated as second tithe removed from certainly untithed produce. None of the leniency accorded to second tithe separated from dema) he says to him [i.e., to the friend], D. "Take this [produce] up [to Jerusalem] so that we may eat of it and drink of it [together] in Jerusalem." E. Truly ('bl) they give [produce] to one another as a gift. M. 3: 1 (b. A. Z. 63a; A-D: M. Sheb. 8:4; T. Sheb. 6:25; E: M. M.S. 1:1)

The gloss at E provides the exegesis for the contrasting case at A-B and C-D. While the text does not explicitly state that the produce under discussion is in the status of second tithe, the issue dealt with here, as well as the pericope's redactional context, require that this be the case. 1

1

In its present form, the pericope seems to be talking about produce in general.

As such, it prohibits the farmer from offering as payment for work any produce he wants taken to Jerusalem. Nothing in M. prepares us for such a prohibition on the use of ordinary produce. If, however, we assume that our pericope has in mind produce in the status of second tithe, its prohibition becomes understandable. Now the force of the pericope is to limit the use the farmer makes of consecrated produce which

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Since E is the key to the exegesis of the pericope, let us begin with its interpretation. As we know from M. 1: l, the only way a farmer may benefit from his produce designated as second tithe is by eating it in Jerusalem. E's point is that as long as such produce is consumed in Jerusalem without benefit to the farmer, he need not eat it personally. He may, therefore, give it as a gift to someone who will eat it under the proper conditions. That this is in fact the point is brought out by the contrast between A-B and C-D. In A-B the farmer wants to enter into an agreement by which a friend will transport the farmer's consecrated produce to Jerusalem. From the language at B, it is clear that the friend is performing the work because he will receive some of the produce in return. Since, in this case, the farmer intends to use the consecrated food as payment for work, he will derive some benefit from his consecrated produce. It follows that such an arrangement is prohibited, as A states. In C-D, however, the farmer offers the produce to his friend as an unconditional gift, at the same time making a request that the friend help him get the food to the city. Since the farmer is not actually offering second tithe as payment for the friend's work, such an agreement is valid.

3:2 A. They do not purchase [produce in the status of] heave-offering with money [consecrated as] second tithe, B. because it [the status of heave-offering] limits [the possibility of] its being used as a food (mm't b'f9iltw) [since it can only be eaten by priests]. C. But (w-) R. Simeon permits [the purchase of produce in the status of heave-offering with money consecrated as second tithe]. D. Said to them R. Simeon, "If [mh omitted by most MSS] [the ruling] is lenient in regards to peace-offerings, which may be deemed to (ml!J'n !Jr.!Y) [be impermissible for consumption under] the laws of refuse !pgwl), remnant (nwtr) and uncleanness (tm'), should we not rule leniendy in regards to heave-offering [which is not governed by these laws]?" E. They said to him [i.e., R. Simeon], "If [the ruling] is lenient in regards to peace-offerings, which are permitted for non-priests [to

he must consume in Jerusalem. The law, then, is in agreement with the laws of M. I: 1, which prohibit the farmer from deriving any benefit from produce in the status of second tithe.

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eat], should we rule leniently for heave-offering which is forbidden for non-priests [to eat)?"

M. 3:2

(A-C:b. Zeb. 76a)

The dispute at A-C is followed by a debate at D-E. We expect this debate to explain the positions taken in the dispute. In fact, as we shall see, the debate introduces its own considerations. We have then two discussions of the same topic, one at A-C and one at D-E. Each presents a different reasoning for preventing a farmer from buying as second tithe produce in the status of heave-offering. Let us consider each discussion in tum. A-B explain that a farmer may not purchase produce in the status of heave-offering for use as second tithe because he will not be able to eat such produce. The point is that the food consecrated as heaveoffering will remain in that status and thus be prohibited to the farmer, even if it is bought with money in the status of second tithe. According to this view, then, food in one status of consecration cannot be converted to a different status, even if the owner wishes to change the status. Simeon, C, disagrees. He holds that any food purchased as second tithe takes on that status and can be eaten as such. Should the farmer purchase as second tithe produce in the status of heave-offering, in Simeon's view, that produce will lose its status as heave-offering and enter the status of second tithe. The farmer then will be permitted to eat that produce as second tithe. On this basis, Simeon can allow the farmer to purchase for use as second tithe food already consecrated as some other agricultural gift. 2 Thus, for Simeon, the farmer's intention to consecrate produce in a specific status is always effective, even if the produce is already in some other status of consecration. D-F, however, ascribe to Simeon a far different reason for allowing the purchase of heave-offering for use as second tithe. He now agrees with A-B that the purchased food retains its status of heave-offering 2 MR understands this pericope to refer to a farmer who is of priesdy status. While he himself can use heave-offering as second tithe, he is not able to give his second tithe away to commoners. There is thus a restriction on the way he may use second tithe. For this reason, MR claims M. prohibits him from purchasing heave-offering for use as second tithe. MR's interpretation clearly is influenced by M. 3: l, which declares that second tithe may be given away. MR wants to carry this notion forward, declaring that the farmer in fact must be able to give his second tithe away. I see no reason for making this claim. In addition, MR supposes that the text has in mind a farmer who is also a priest. At no point of which I am aware, however, does M. assume that the householders it legislates for are priests.

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and thus is prohibited to the farmer. His point at D is that this is irrelevant. His reasoning is based on the already accepted laws of peaceofferings. These laws state that certain portions of an animal brought to the altar for use as a peace-offering are returned to the donor to be eaten by him. This meat may be consecrated as second tithe and eaten as such (M. 1:4). Simeon's point is that the meat may be purchased as second tithe even though it is liable in several ways to become entirely unfit for use as food. This occurs when the peace-offering is not eaten within two days after its slaughter (notar), when the priest who slaughters it intends to leave it uneaten for more than two days after slaughter (piggul) or when it comes into contact with a source of uncleanness. 3 From this Simeon concludes that it is permissible for the farmer to purchase as second tithe food which he might not be able to use. This is consistent with his view in C. Simeon's argument is countered in E. Here sages reject Simeon's attempt to draw an analogy between peace-offerings and heave-offerings. Peace-offerings, to begin with, are permitted as food for both priests and non-priests. In this regard they are like any other food that the farmer might buy as second tithe. The fact that it might become unfit is deemed irrelevant. Produce in the status of heave-offering, to the contrary, is by definition permitted only to priests. On this basis, sages argue that what is true for peace-offerings, which to begin with anyone can eat, is not true for produce designated as heave-offering, which only priests can eat. Simeon's rationale for allowing priests to purchase heave-offerings for use as second tithe is thus shown to be without basis.

A. [If] he had two bins, one [for produce in the status] of heaveoffering and one [for produce in the status] of second tithe,

3 The laws of refuse (piggul) and remnant (notar) apply to the flesh of animals which are sacrificed on the-altar. The flesh is deemed to be refuse if, while the priest was sacrificing it, he formed the notion of eating it at an improper time. The flesh is considered a remnant if it is not consumed within two days after the sacrifice is carried out. The laws of uncleanness, of course, apply to heave-offering as well as to peaceofferings. Heave-offering, however, only becomes unfit if it comes into contact with food unclean in the first, second or third remove. Peace-offerings are rendered unfit even if they come in contact with food unclean in the fourth remove. Peace-offerings are therefore more susceptible to uncleanness than are heave-offerings, which is the point of the law in our pericope. References to these three modes of rendering consecrated items unfit as food often appear together in M. See, for example, M. Toh. 3:4, M. Hul. 8:6, M. Tern. 7:1, M. Me. 1:2-3, 4; 2:1-9; 4:1, M. Men. 11:8 and M. Makkot 3:2.

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B. and pieces of fruit between themC. [if the produce is found] nearer to the [bin for] heave-offering, it falls [under the laws governing] heave-offering,

D. [if the produce is found] nearer to the [bin for] second tithe, it falls [under the laws governing] second tithe, E. [if it is found] halfWay between [the two bins] they apply the restrictive laws of both [the status of heave-offering and of second tithe]. F. R. Yose b. R. Judah says, "A chest which they use for unconsecrated [coins] and [coins in the status of] second tithe, G. and one found coins in it [and does not know the status of the coins], H. if most [of the people] place consecrated [coins in the chest], [the coins are deemed to be] consecrated. I. If most [of the people] place [coins in the status of] second tithe [in the chest, the coins are deemed to be in the status of] [Lieberman adds: second tithe]. J. R. Simeon said to them, "Lo, peace-offering, the breast and thigh of which are forbidden to non-priests [to eat]." T. 2:11 (p. 252, 11. 50-55) (A-E: cf. M. Sheb. 7:1; F-1: b. Pes. 7 a)

A-E and F-I are autonomous of M. They are placed here on account of E's notion that both the status of heave-offering and of second tithe can apply to a single item, as in the case proposed in M. 3:2C. In the first unit, A-E, we have two bins, one for produce in the status of heave-offering and one for produce in the status of second tithe. Pieces of fruit which someone meant to deposit in one of the bins are found on the ground. Since we do not know for which bin the produce was intended, we declare that the produce is in the status of the bin closest to where it was found. If the produce was found at a point equidistant from the two bins, it is treated according to the restrictions of both heave-offering and second tithe. That is, it must be eaten only by priests in a state of cleanness, like heave-offering, and it is forbidden to be eaten outside of Jerusalem or by a person in mourning, like second tithe. F-I makes the same point. Now coins are found in a chest which is sometimes used to contain unconsecrated coins and sometimes used to contain coins in the status of second tithe. Since we don't know the intention of the person who deposited the coins, we deem them to be in the status of the coins most generally deposited in the chest. J continues the debate of the anonymous authorities and Simeon in M. 3:2D-E. Simeon argues in M. 3:2D that food designated as peaceoffering is subject to more restrictions than is food in the status of second tithe, since peace-offerings are liable to the laws of refuse, remnant

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and uncleanness, which do not apply to second tithe. This argument is countered by sages (M. 3:2E) who point out that in fact heaveoffering is more restricted in use since it may be eaten only by priests. Now, in T. 2: II], Simeon is given the last word in the argument. He responds that there are parts of peace-offerings which, like heaveofferings, are also eaten only by priests. When an animal is offered as a peace-offering, its chest and thigh are consumed by the officiating priest. By this argument, he attempts to neutralize E by showing that the same restrictions applying to produce designated heave-offering also apply to animals declared peace offerings. 3:3-4 A One who has coins [in the status of second tithe] in Jerusalem, B. and needs them [for secular purposes], C. and his friend has [unconsecrated] produce [in Jerusalem], D. says to his friend, E. "Lo, these coins are deconsecrated with your produce." F. In consequence, this one [i.e., the friend] must eat his produce in [a state of] cleanness [because it is now in the status of second tithe], G. but that one [i.e., the farmer] may use his coins for his needs [since they are no longer in the status of second tithe]. H. But (w-) he may not say this to an 'am ha,ares_, unless [the coins were] of doubtful status (dm)). M. 3:3 (H: cf. M. Dem. 1:2) I. [One who has] [unconsecrated] produce in Jerusalem and coins [in the status of second tithe] in the provinces says, ]. "Lo, those coins are deconsecrated with this produce." K. [One who has] coins [in the status of second tithe] in Jerusalem and [unconsecrated] produce in the provinces says, L. "Lo, these coins are deconsecrated with that produce," M. provided that the produce is [subsequently] brought up to Jerusalem and eaten [there as second tithe]. M. 3:4 (Cf. y. M.S. 1:4)

These two pericopae deal with the transfer of the status of second tithe from coins to produce. We recall that Scripture allows a farmer to bring consecrated coins to Jerusalem and to use these to buy food, which then becomes second tithe. The point of the material before us is that the farmer can transfer the status of second tithe from money to produce without in fact buying the produce. That is, the status of second tithe can be transferred without the coins or the food changing hands. M.'s discussion unfolds in a series of three cases: A-H, 1-J and K-M. each of which incorporates the same declaration on the part of the farmer (E, ], L).

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We begin in A-H, with a farmer who arrives in Jerusalem with coins in the status of second tithe. He wants to deconsecrate these coins so that he can use them for secular purposes. According to E-G, he may do so simply by declaring the status of second tithe to be transferred from his consecrated coins to unconsecrated produce owned by a friend. The point here is that the farmer may now use the deconsecrated coins to purchase what he wishes without fear that the purchased item will be consecrated. His friend, on the other hand, keeps the food, but now must eat it as second tithe. H's ruling is obvious. The person whose produce is consecrated must of course eat it in conditions of cleanness. It follows that the farmer should not transfer the status of second tithe to produce owned by an 'am ha' ares_, that is, one who is not reliable in this matter. The law is lenient, however, if the, coins' status as second tithe is in doubt. 4 Produce consecrated with this money is itself of uncertain status. We allow this produce to be eaten by an 'am ha' ares_ since, in all events, we cannot be sure the food is in fact consecrated. 1-J and K-M apply the procedure of A-H to a new situation. Now the farmer himself owns both the consecrated coins and the unconsecrated produce. The farmer therefore consecrates produce which he already owns. We consider two possible scenarios. In 1-J the consecrated coins are outside of Jerusalem and the unconsecrated produce is in the city. K-M cite the complementary case. The consecrated coins are in Jerusalem and the unconsecrated produce is in the provinces. In both cases, the farmer may transfer the status of second tithe from the coins to the produce, even though there is no change of ownership involved. M makes an important point in connection with the transaction of K-L. If the newly consecrated produce is located outside of Jerusalem, it must be taken to the city. This is in contrast to the laws applying to produce which was originally separated as second tithe, which may either be taken to Jerusalem or sold. The force of M, then, is to declare

4 Generally dema'i refers to produce which might not have had tithes removed. One who is meticulous about the tithing laws must remove first and second tithe before eating the produce in order to insure that these offerings have been separated at least once. If tithes had already been separated, however, what he now takes out is not a tithe. Whatever is separated, then, can be only of doubtful status. If second tithe removed in this way is sold, the coins received in exchange are also of doubtful status. It is to such coins that the law of the pericope refers.

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that produce bought as second tithe may not be sold again but must be taken to Jerusalem for consumption. 3:5-6 A. Coins [in the status of second tithe) enter Jerusalem and go out [i.e., after they have been brought into Jerusalem they may be taken out again], B. but produce [which is in the status of second tithe) enters Jerusalem and does not go out [i.e., it must remain in the city until it is consumed). C. Rabban Simeon b. Gamaliel says, "Also: produce [in the status of second tithe) enters Jerusalem and goes out [again)." M. 3:5 (C: cf. M. Dem. 1:2) A. [Untithed) produce, the processing [for use as food) of which is completed and which passed through JerusalemB. [let produce separated from it as) second tithe be returned and eaten in Jerusalem. C. [And as for produce) whose processing is not completed [and which passes through Jerusalem], D. such as grapes [being brought] to the winepress or baskets of figs [being taken] to a drying placeE. the House of Shammai say, "[Let produce separated from it as] second tithe be returned and eaten in Jerusalem." F. And the House of Hillel say, "Let it be redeemed and [then] eaten in any place." G. R. Simeon b. Judah says in the name of R. Yose, "The House of Shammai and the House of Hillel did not disagree concerning produce the processing of which was not completed, that [produce separated from it as] second tithe may be redeemed and [then] eaten anywhere. H. About what did they disagree? I. About produce the processing of which was complete. J. For the House of Shammai say, 'Let [produce separated from it as] second tithe be eaten in Jerusalem' [= M. 3:5B). K. "And the House of Hillel say, 'Let it be redeemed and eaten in any place" [= M. 3:5C). L. And [produce separated as second tithe from] doubtfully-tithed produce enters Jerusalem and comes out, and is [afterwards] redeemed. M. 3:6

Before us is a complex essay dealing with the question of second tithe which has been brought into Jerusalem. The essay begins at A-B by stating that coins and produce are subject to different rules in this regard. Consecrated money which is brought into Jerusalem may be taken out again, while produce brought to the city must remain there.

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M. 3:6 assumes and amplifies B's rule in the name of the Houses. Simeon b. Gamaliel, M. 3:5C, rejects the whole notion that consecrated produce must remain in Jerusalem, and so stands outside the entire essay. With the general structure of the essay in mind, let us turn to a closer look at each of its parts. We begin with the distinction in A-B between coins and produce. The point here is that the produce itself is deemed to be a consecrated offering. Bringing the produce into Jerusalem where it must be eaten, then, is like placing a sacrificial animal on the altar. We know from M. Zeb. 9: 1 that an animal once placed on the altar may not be withdrawn. Similarly, B reasons, produce designated as second tithe which has been brought into the city may not be taken out. This consideration does not apply to coins since these are in all events not the offering itself, but only a temporary substitute which carries its status. Simeon's disagreement with B rests on a different understanding of second tithe. He does not see an analogy between second tithe and sacrificial animals in this regard. Rather, second tithe is simply a kind of produce to be eaten in Jerusalem. The mere fact that the produce has been brought into the city takes on no special significance in this view. Like the coins at A, it may be brought in and out at will, as long as it eventually serves its intended purpose and is ultimately eaten as second tithe in Jerusalem. 5 M. 3:6 asks whether or not M. 3:5B's rule applies also to untithed produce which is in Jerusalem. We know that a portion of this produce will eventually be declared second tithe. Do we consider this portion of the produce, prior to its actual designation, to be already subject to the laws of second tithe so that it may not be taken out of the city? We have two versions of the Houses' dispute on this matter: A-F and G--K. In A-F the Houses agree that fully processed produce which has entered Jerusalem must be treated as if its second tithe had already been designated within it. If the produce subsequently is taken out of the city, what is later removed as second tithe is deemed to have

5 Sens, Bert., MR and TYY want to harmonize Simeon in C with the ruling of B. They claim that everyone agrees that once a particular batch of produce has been brought into Jerusalem, that particular produce must be consumed there. Simeon b. Gamaliel's position is taken to mean only that the produce may be taken out of the city if the farmer intends to process it by grinding or baking it for example. Once the processing has been accomplished, Simeon would agree that the produce must be returned to the city for consumption. This interpretation is possible only if we read into C matters which have no basis in the text.

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absorbed the holiness of Jerusalem and so must be returned there. The reason is that since the produce was processed, and therefore suitable for tithing, it is made holy as tithe by entry into the holy city. 6 By analogy to the altar, Jerusalem makes holy whatever is suitable for tithing and which is intended for use there as tithe. The Houses disagree, however, as to whether or not the rule applies even to produce which is not yet processed (C-F) and therefore not yet suitable for tithing. The Shammaites hold that since what is ultimately separated as second tithe has already been in Jerusalem at one point, it must be returned there. The Hillelites disagree. Since the produce is unprocessed, it is not subject to the laws of consecration at all. The fact that the produce was in Jerusalem is of no concern. According to the Hillelites, then, Jerusalem renders holy only that produce which is suitable for sanctification, i.e., only produce which is subject to the laws of tithing. Simeon has a different version of the dispute. 7 According to him, both Houses agree that unprocessed produce is entirely exempt from the law of M. 3:5B. This is so because the unprocessed produce, not being consecrated, does not become subject to laws governing the use of tithes. This is the Hillelite position in F. The disagreement concerns consecrated produce, that is produce which is ready to be eaten and thus liable to the removal of tithes. The Shammaites hold the same opinion as before, that this produce is subject to the laws governing the use of consecrated foods and so what is later separated as second tithe must be returned to Jerusalem. The Hillelites claim that since second tithe has not yet been designated in the batch, none of the produce is actually subject to the laws of second tithe. Since none of the produce was in the status of second tithe when it was first in Jerusalem, it follows that none of it needs to be returned. 6 The notion that produce is liable to the removal of heave-offering and tithes as soon as it is ready for consumption is found in M. Ma. Chapter One. The point is that tithes are due only from produce which can be used as human food. If produce is edible in its raw or natural state, it is subject to the removal of tithes and heaveoffering as soon as it is harvested. If, however, the produce must be processed in some way before it is edible, it does not become liable to the separation of these gifts until such processing is completed. Once liable, the produce may not be eaten by common farmers until all agricultural gifts are removed. See also the introduction to Jaffee, Maaserot. 7 It seems odd that a question discussed by the Houses should still be a subject of intense controversy in Usha, as M.3:5 (Simeon b. Gamaliel) claims. This, added to the assertion that the Houses'opinions themselves were a matter of disagreement in the time of Rabbi, suggests that the debate is in fact of Ushan vintage, pseudepigraphically attributed to the ancient Houses.

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L is independent of the foregoing, but is direcdy related to the issue of M. 3:5, the language of which it follows. It refers to the case in which second tithe is separated from produce which is dema'i, that is, produce from which tithes may already have been removed. Since it is possible that second tithe already was removed from the batch, that which the farmer now separates may not have the status of second tithe at all. We therefore do not deem the separated produce to be subject to the restrictions which apply to produce that is certainly in the status of second tithe. If produce separated from dema'i is brought into Jerusalem, it may be taken out of the city and sold. K. R. Simeon b. Judah says in the name of R. Yose, L. "Thus said the House of Hillel to the House of Shammai, 'Do you not concede that [in the case of] produce the processing of which is not completed [and which was brought through Jerusalem] that (delete: if) produce is [separated] from it (s'1' amended by Lieberman to flh) as second tithe, it is redeemed [and] eaten in any place? [Also] produce the processing of which is complete [should be treated] in a similar fashion (ky{ bhn).' M. "Said to them the House of Shammai, 'No. For you have said [in regards to] produce the processing of which was not completed, that one may renounce his ownership over it, so as to render it exempt from liability to heave-offering and tithes [which is not the case for produce whose processing is completed].' N. "Said to them the House of Hillel, 'Even [in the case of] produce the processing of which is completed, one can separate produce as heave-offering and tithes [from it] for another batch. 0. 'And a further reason is that people are not liable to [the laws applicable to] heave-offering and tithes until [these gifts] are [actually] removed [cf. T. 3: 11]. "' T. 2:11 c (p. 252, 11. 55p. 253, 1. 62; y. M.S. 3:6)

The unit before us supplements Simeon's version of the Houses' dispute in M. 3:6G~K. As we recall, a farmer brings through Jerusalem a batch of processed produce, that is, produce which is liable to the removal of heave-offering and tithes. The Shammaites hold that second tithe later separated from the batch must be returned to Jerusalem. The Hillelites hold, to the contrary, that the second tithe produce may be taken out of the city. In the debate before us, the Hillelites present an argument for their view. They point to the fact that second tithe separated from a batch of unprocessed produce which was in Jerusalem may be taken out (M. 3:6G). They now claim that the same law should apply as well to second tithe separated from processed produce. This

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is so, presumably, because in both cases the produce was not in the status of second tithe when it was in the city. It therefore should not be subject to the laws which govern the use of second tithe. The Shammaites respond, M, by claiming that processed produce is in fact already subject to the laws which govern the use of heave-offering and tithes. A farmer can exempt unprocessed produce from the removal of heave-offering and tithes, for example, simply by declaring the produce to be ownerless. 8 He may not, however, so exempt produce which has been processed for consumption, since such produce is already liable to the removal of these gifts. In N-0 the Hillelites are given the final word in the debate. They point out that produce in one batch may be separated as heave-offering or tithe for produce in another batch. 9 Since the farmer does not need to separate tithes from each batch individually, it follows that we do not deem the laws of second tithe to apply to the produce of each particular batch. Rather, these laws apply only to produce which has been declared second tithe. The principle standing behind the Hillelite position is articulated explicitly at 0. Here the Hillelites claim that the status of second tithe does not adhere to produce until the farmer actually designates certain produce to be second tithe. As it appears in T., the position of Simeon's Hillelites is now made perfectly consistent with the rule of M. 3:5A-B. That is, the Hillelites now can agree that produce in the status of second tithe, once in Jerusalem, must remain there. They are made to disagree only about the secondary issue of whether or not this restriction applies as well to produce which has not yet been specifically designated as second tithe. T., then, has read M. as the redactor wants, i.e., with M. 3:6 functioning as a secondary development of M. 3:5. 3:7-8 A. A tree which is standing inside [Jerusalem] and [a bough of which] extends outside [the city], B. or [which] is standing outside and [a bough of which] extends inside [Jerusalem]-

8 M. Ma. 1: 1 rules that produce is liable to the removal of heave-offering and tithes only if it is edible, grows from the soil and is owned by the farmer. Any plant that does not fulfill these three criteria is not liable to the removal of tithes. It follows that if the farmer declares part of his crop to be ownerless, that portion will not become liable to the removal of tithes. See Jaffee, Maaserot. 9 See, for example, M. Ter. 1:9, 2:1.

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C. that which is above [the center of] the wall and inwards is [deemed to be] within [Jerusalem] [and that which is over the center of] the wall and outward is [deemed to be] outside. D. Buildings containing olive-presses, the entrances of which are inside [Jerusalem] and the contained spaces of which are outside, E. or the entrances of which are outside and the contained spaces of which are insideF. the House of Shammai say, "It is all [deemed to be] inside," G. and the House of Hillel say, "That which is opposite [the center of] the wall and inward is [deemed to be] within [and that which is opposite the center of] the wall and outward is [deemed to be] outside." M. 3:7 (A-c: b. Mak. l2a, D+G: y. M.S. 3:7) H. the [Temple] chambers built in the holy [precinct] and open to the unsanctified [area]1. their inner space (twkn) is [deemed to be] unsanctified and their roofs are [deemed to be] sanctified. J. [Those] built in the unsanctified [area] and open to the sanctified [precinct]K. their inner space is [deemed to be] sanctified and their roofs are deemed to be unsanctified. L. [Those] built [partly] in the holy [precinct] and [partly] in the unsanctified [area] and open to [both] the sanctified [precinct] and the unsanctified [area]M. [as for] their inner spaces and their roofsN. [that part which is] in the sanctified [precinct] and inward (mkngd hqdf wlqdf) is [deemed to be] sanctified [and that part which is] in the unsanctified [area] and outward is [deemed to be] unsanctified. M. 3:8 (H-1: b. Pes. 86a; J-K: b. Zeb. 56a; cf. T. Kel. B.Q l:ll)

These pericopae are concerned with areas which straddle the boundaries of sacred precincts and which therefore are of ambiguous status. The question is whether or not such areas are deemed to belong entirely to the sanctified domain. The material before us has been formulated independently of the laws of second tithe. It is placed here because of our chapter's concern with laws which apply only within the bounds of Jerusalem. Formally we have a triplet, A-C, D-G and H-N, whose units are mildly apocopated. A tree has a bough hanging over the wall of Jerusalem (A). C rules that only that part of the limb which is actually located within the walls of Jerusalem is deemed to be in the city. Thus, for example, if a farmer picks fruit from that part of the limb which is inside the city,

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the fruit is deemed to have been in Jerusalem, and if it is declared second tithe, must remain in the city. 10 The converse is true if the fruit is picked from part of the limb which is outside the wall. Our sole consideration then is the actual location of each part of the limb in relation to the city walls. 11 In D-G we consider a shed which intersects the walls of Jerusalem. The Hillelites rule that, like the tree limb in A-c, only that part of the shed which is actually located within the walls is deemed to be in the city. The Shammaites, however, claim that the entire contained space of the shed is deemed to be like Jerusalem itself. They hold that the outer wall of the shed establishes a new boundary-line for Jerusalem. The Shammaites, apparently, would hold that any second tithe produce anywhere in the shed may be eaten. In this they reject the Hillelite notion, expressed at G, that the domain of Jerusalem IS restricted to its traditional boundaries. H-N turns our attention to chambers built partially in the Temple courtyard and partially outside the courtyard. Here we are told that the status of the roof and the status of the contained space are judged according to different criteria. The rule concerning the status of the roof follows the Hillelite position that the domain of the sacred does

10 It is not clear from M."s language what the position of the consecrated fruit is to the bough. I have assumed that the law refers to fruit growing on the bough since this seems to be the most natural explanation. Medieval commentators, however, have explored other possibilities. Maimonides holds that the law refers to the status of the ground overshadowed by the limb. That is, a farmer who has consecrated produce in his hand and who walks under the bough is deemed to have entered the territory of Jerusalem. Accordingly, the fruit may no longer be sold. Read in this way, our pericope is parallel to M. Neg. 13:7 which declares that a clean person walking under a tree overshadowing an unclean person is deemed to enter the unclean person's domain and is himself rendered unclean. Another possibility is explored by TYY. He suggests that the law refers to the status of fruit held by a farmer sitting on the limb. His point is that since the tree is growing in the city, all of its branches are considered to be extensions of the city. 11 M. Ma. 3: l 0 discusses a similar case. There we have a tree growing in the Land of Israel but with a bough extending over the border. The question is whether fruit growing on this limb is deemed to be within the Land, and thus subject to the removal of tithes, or whether it is outside the Land. According to M. Ma. 3: l 0, all of the fruit growing on the tree is judged to be growing in the territory in which the tree's roots are located. The actual location of the fruit itself, inside or outside the border, is not deemed to be important. I do not consider this law to be contradictory to ours. M. Ma. is concerned with the source of the produce's nourishment since only produce growing in the Land of Israel is liable to the removal of tithes. Thus the location of the roots is probative. Our pericope, to the contrary, is concerned with the actual physical location of the produce. The location of other parts of the tree is immaterial.

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not extend beyond its traditional bounds. It follows that the roof will always have the status of the ground over which it is built (H-K). If the roof straddles the courtyard wall, each segment of the roof will have the status appropriate to its actual location (L-N). The inner space of the chamber, however, is deemed to be part of the domain to which it is contiguous. That is, like the Shammaite position above, the outer walls of the chamber are deemed to establish new boundary lines for the area into which the chamber opens. If the entrance of the chamber is located in the courtyard, for example, the walls of the chamber which extend beyond the traditional courtyard wall become the new boundaries of the courtyard and the chamber's entire contained space becomes part of the courtyard's domain. This principle, however, does not help us determine the status of the chamber if it opens out to both the courtyard and the unsanctified area (L-N). In such a case, we follow the Hillelite position and deem each part of the chamber's contained space to have the status appropriate to its actual location in relation to the traditional boundary line. H-N. then, offers a compromise between the position of the two Houses. A. A tree which is standing inside [Jerusalem] and a bough of which extends

outside [M. 3:7A]B. [produce picked from it and designated as] [second] tithe has [the possibility of] redemption [i.e., it may be given in exchange for coins]. C. If the branch came back inside [Jerusalem], [produce picked from it and designated as] second tithe does not have [the possibility of] redemption. D. [If] it was standing outside and its bough extends inside [M. 3:7B]E. [produce picked from it and designated as] second tithe does not have [the possibility of] redemption. F. If the branch came back outside, [produce picked from it and designated as] second tithe has [the possibility of] redemption. G. Buildings containing olive-presses (bry brym: reading with E: bry bdyn) the entrances if which are inside [Jerusalem] and the contained spaces if which are outside []emsalem], H. or the entrances if which are outside and the contained spaces if which are inside [M. 3:7D-E] I. the House of Shammai say, "They do not redeem [produce in the status of second tithe] inside them, as if they were [located totally] within Jerusalem, and they do not eat Lesser Holy Things as if they were [totally] outside, ]. and the House if Hillel stry, "Ihat which is opposite [the center if] the wall and inward is [deemed to be] within [and that which is opposite the center if] the wall and outward is [deemed to be] outside [M. 3:7G]." K. Said R. Yose, "This is the version of R. Aqiba.

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L. "The original version (mint rfnh) [is as follows]: M. "The House of Shammai say, 'They do not redeem [produce in the status of] second tithe in it, as if they were inside [Jerusalem], and they do not eat Lesser Holy Things in them, as if they were outside.' N. "and the House of Hillel say, 'Lo, they [are treated] like [Temple] chambers; the one whose entrance opens to the inside [is deemed to be] inside and the one whose entrance opens to the outside [is deemed to be! Outside"' [cf. M. 3:8H-L]. T. 2:12 (p. 253, 1. 62p. 254, 1. 72; G-N: T. Arak. 5: 15) 0. A [Temple] chamber built in the ho!J [precinct] with (w) its entrance [open] to the unsanctijied [area]P. its inner space is unsanctified and its roqf is sanctified [M. 3:8H-I]. Q, They do [Lieberman adds with E: not] eat Most Holy Things in it, and they do not slaughter Lesser Holy Things in it, and they are not responsible on its account [for the laws of] uncleanness. T. 2:13 (p. 254, 11. 72-74) R. [A chamber] built in the unsanctijied [area] with its entrance [open] to the ho!J [precinct] [M. 3:8J], S. even though it should not remain this wayT. its inner space is sanctified and its roqf is unsanctified [M. 3:8K]. U. They eat Most Holy Things in it (Lieberman adds with D: and they slaughter Lesser Holy Things in it) and they are liable on its account for [the laws of] uncleanness. 2:14 (p. 254, 11. 74-77) (R-T: b. Yom a 25a. Zeb. 56a) V. [A chamber] built in the holy [precinct] and open to the unsanctified and the sanctified [areas]W. it is all [deemed to be] sanctified. X. A chamber] built in the unsanctified [area] and open to the sanctified and unsanctified [areas]Y. it is all [deemed to be] unsanctified. Z. [A chamber] built in the sanctified and unsanctified [areas] and open to the sanctified (Lieberman adds: and unsanctified) [areas] [M. 3:8L]AA. [as in the case of] the chamber of fire (ls'Ki byt hmwqd). BB. [As for] their inner space and their roqf~ CC. [that which is] above the sanctified [area] (mkngd hqwdi wlqwdf) is [deemed to be] sanctified DD. [and that which is] above the unsanctified [area] is [deemed to be] unsanctijied [M. 3:8M-N]. EE. If [the case is one] of eating holy things (E: matters of uncleanness), [the status of] the entire [chamber] is according to [the location of] its entrance. FF. If [the case is one] of matters of uncleanness (E: eating holy things), [the chamber is deemed to be sanctified only] from the [center of

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G. HH.

II.

lJ.

KK. LL. MM. NN. 00.

PP.

the] wall and inwards (Lieberman deletes with E: it is all according to the [location of] its entrance). [If a chamber] was built on the wall (Lieberman: of the [Temple] courtyard), they eat Most Holy Things in it and they [Lieberman deletes with E: do not) slaughter Lesser Holy Things in it, [If a house] was built on the wall (Lieberman: of Jerusalem), they (Lieberman: eat) Lesser Holy Things in it but they do not redeem [produce in the status of] second tithe in it. A house built on the wall of a walled city, [Lev. 25:29]R. Judah says, "It is [treated] as if it were outside [the walls)." R. Simeon says, "It is [treated] as if it were inside [the walls)." All of the [Temple] chambers are built totally in the sanctified [precinct). R. Yose says, "The border lines of the Land oflsrael that are [given] in Scripture are judged to be outside of the Land [of Israel]." R. Eleazar b. R. Yose, "They are judged to be in the Land of Israel." T. 2:15 (p. 254, I. 77 p. 255, I. 86) (V-Y: y. M.S. 3:7; NN-00: cf. T. B.Q 8:19); KK-MM: T. Arak. 5: 14)

The pericopae before us constitute an expansion of the material introduced in M. 3:7-8. It may be divided into four sections, corresponding to the thematic units of M. A-F cite and gloss M. 3:7A-C; G-N cite and gloss M. 3:7D-G; O-FF cite and gloss M. 3:8; and GG-PP are independent of M., although related in theme. A-F expand M.'s discussion of the tree with the extended bough. C and F add the case of a branch which extends into the second area and then bends back to the first. Fruit on each segment of limb is still judged according to its actual location inside or outside the wall. G-N turns our attention to the olive-press which straddles the city wall of Jerusalem. The question is the status of the shed's contained space. Now we have two versions of the Houses' dispute. The first version, attributed to Aqiba (K), repeats the Hillelite position of M.3:7G, but slightly altars the Shammaite view. The Hillelites, as before, hold that the inner space of the shed is divided according to actual location in relation to the city wall. The Shammaites now hold that the interior space is treated as a homogenous unit and that the stringencies of both locations apply throughout. R. Y ose gives a slightly different version of the dispute (K-N). He makes the Hillelites agree with the Shammaites

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that the entire inner space is deemed to have one status. The disagreement now is only about what that status is. The Shammaite position is as above, that the stringencies of both locations apply to the space. The Hillelites treat the sheds like the Temple chambers, whose entire inner space is given the status of the area contiguous to the entrance. Redactionally, this Hillelite opinion forms a bridge from the theme of G~N, olive-presses to that of O~FF, Temple chambers. Our third unit, O~FF, expands M.'s laws dealing with Temple chambers which are built across the boundary between the Temple courtyard and the unconsecrated ground. T.'s glosses at Q and U simply reiterate the law. Most Holy Things are eaten, Lesser Holy Things are slaughtered, and the laws of uncleanness apply only in the sanctified precincts of the Temple. Q and U have these same laws apply to those inner spaces which are deemed sanctified. v~v add a further possibility for the location of the chamber besides those enumerated by M. Now the chamber is in one area while the entrance is open to both sanctified and unsanctified precincts. In this case, the entire chamber is given the status of the ground upon which it is built. EE and FF qualify the preceding rule by claiming that we take into account the activity to be carried out in the chamber. If a priest wishes to eat Most Holy Things within the chamber, the status of the inner space is judged according to the location of the entrance. If we are concerned with the laws of uncleanness, only those parts of the chamber which are actually inside the courtyard wall are deemed to be in the status of the courtyard. 12 GG-PP, as we have said, supply material autonomous of M. Before us is a series of cases in which an identified location sits directly over a boundary line. In each of the cases, the area on top of the boundary is deemed to take on the status of the more sanctified area. Thus the Temple chamber at GG-HH is deemed to be within the courtyard and sacrifices may be slaughtered and eaten there. The house in II~JJ is deemed to be within Jerusalem. Lesser Holy Things may be eaten there, and produce in the status of second tithe may not be given in exchange for coins in the house. 13 KK~MM concerns houses built on the walls of a city. The law referred to here states that if houses I follow Lieberman's emendations of GG-JJ. See his comments, TK, p. 743. For the laws governing the location in which Most Holy Things and Lesser Holy Things may be slaughtered and eaten, see M. Zeb. Chapter 5. 12

13

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within a walled city are sold, they may be redeemed by the seller during the first year. After that time, they belong to the buyer in perpetuity. Houses outside the wall, in contrast. may be redeemed at any time, and if they are not redeemed, they nonetheless return to the seller during the Jubilee. Simeon, MM, holds that houses built on the city wall are deemed to be within the city, consistent with the principle of GG-JJ.l4 NN refers us to Temple chambers. These, we are told, are never built on the courtyard wall but only clearly within the courtyard. Lieberman relates this lemma to the gloss at T. 2: 14S which declares that chambers built on unsanctified ground and opening onto the courtyard should not be allowed to remain. 00-PP concerns geographical locations mentioned as the boundaries of the Land of Israel. Eleazar's opinion, that the geographical points are within the Land of Israel, is consistent with the notion that areas directly on top of a boundary are imputed the status of the more sanctified area. A [Produce in the status of] second tithe which entered Jerusalem and was rendered unclean, B. whether it was rendered unclean by a Father of uncleanness or whether it was rendered unclean by an Offspring of uncleanness, C. whether [it was rendered unclean] inside [Jerusalem] or outside [Jerusalem]D. the House of Shammai say, "Let it all be redeemed and eaten inside [] erusalem], E. "except for that which was rendered unclean by a Father of uncleanness outside [Jerusalem], [which must be taken out]." F. And the House of Hillel say, "Let it all be redeemed and eaten outside [of Jerusalem], G. "except for that which was rendered unclean by an Offspring of uncleanness inside [of Jerusalem], [which may remain in the city]," M. 3:9 (Cf. y. M.S. 3:8; M. Sheq. 8:6-7)

Produce in the status of second tithe which becomes unclean may not be eaten as second tithe (M. 2: 10). Rather, it must be deconsecrated so that other food can be purchased and eaten as second tithe in its stead. At issue now is whether unclean produce which is no longer usable as second tithe must remain in Jerusalem even though it is

14

See M. Arak. 9:5; T. Arak. 5:14.

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deconsecrated, in accordance with the principle of M. 3:5A-B, or whether the produce, once deconsecrated, may be taken out of the city. As we shall see, the Houses in fact take up positions between these two extremes, claiming that in some cases the produce must remain in the city, and in other cases, it must be taken out. 15 Formally, we have a superscription, A+B-C, introducing a Houses' dispute, D-G, in which the opinions are perfectly balanced opposites. 16 In D-E the Shammaites rule that unclean produce in the status of second tithe remains in Jerusalem unless it is rendered unclean outside the city by a Father of uncleanness_~? That is, they hold that in the

15 This pericope has puzzled classical commentators, all of whom explain it on the basis of notions not supplied by M. Sens Bert., MR and TYY attempt to explain the pericope on the basis of y. M.S. 3:8, which assumes that the rules for uncleanness derived from a Father of uncleanness are based on Scripture, while the rules governing uncleanness derived from an Offspring of uncleanness are rabbinic. Produce in the status of second tithe which is rendered unclean by a Father, therefore, is deconsecrated on Scriptural authority and so may be removed from the city. If the uncleanness is derived from an Offspring, however, it is deconsecrated only on authority of sages and must therefore remain in the city. Since M. does not know the distinction y. makes between the authority of Scripture and that of the sages, it is clear that this explanation is unacceptable. Maimonides offers an alternative view, arguing that the status of second tithe inhering in produce is diminished in proportion to the level of uncleanness the produce contacts. Produce rendered unclean by a Father loses all of its sanctity and so may be taken out of the city, while produce rendered unclean by an Offspring loses only part of its status as second tithe and so must remain in Jerusalem. Since M. at no time claims that the level of sanctity in an item is in inverse proportion to its state of uncleanness, we must reject Maimonides' view as well. 16 It is clear that B-C are later glosses and not part of the original protasis. They lead us to believe that the level of uncleanness and the location of the produce when it is rendered unclean should not figure in the Houses' dispute which follows. The Houses, however, make distinctions based precisely on these considerations. C, which declares that the uncleanness is contacted either inside or outside Jerusalem also stands in contradiction to A, which states that the produce is rendered unclean only after it enters Jerusalem. The protasis becomes more intelligible when we read B-C as later glosses, drawn into our pericope on account of the distinctions made in E and G. Although B-C intend to clarifY the superscription by giving all four possibilities referred to in the Houses' dispute, they in fact only confuse matters. For a further discussion of the substantive problems posed by this pericope and a more detailed attempt to reconstruct its tradental history, see Neusner, Pharisees, II, pp. I 03-104. 17 A Father is a primary source of uncleanness, such as an insect or a corpse. A susceptible item which comes into contact with a Father of uncleanness itself becomes unclean and is termed an Offspring. It is capable in turn of contaminating foods and liquids with which it comes into contact. These foods are deemed to be in the second remove of uncleanness. They no longer have the power to contaminate unconsecrated foods. Heave-offering and Holy Things which come into contact with an item in the second remove, however, do become unfit for eating. See M. Toh. 2:3-7. For a fuller discussion of the implications of various levels of uncleanness, see also Neusner, Purities, XI, pp. 55ff.

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majority of cases the produce is treated like all other second tithe, in accordance with M. 3:5 A-B. Once it is brought into the city, it must remain there, even if it is subsequently deconsecrated. They make an exception, however, if the produce enters Jerusalem in a state of virulent uncleanness, the result of contact with a Father of uncleanness. Only in this extreme case do the Shammaites hold that the produce must be taken out of the city again. The Hillelites show more concern for the purity of Jerusalem. They hold that unclean produce, once deconsecrated, should be removed from the holy city (M. 3:5C). They make an exception only for produce tainted with minor contamination after it has already been brought inside the walls of Jerusalem. Since the uncleanness is only minor, they do not require the farmer to take the trouble to cart this produce away. We can, then, summarize the Houses' positions as follows: Both Houses agree on the extreme cases: produce made virulently unclean outside Jerusalem must not remain in the city, while produce made only slightly unclean after being in the city does remain there. As regards the remaining possibilities, produce made highly unclean in Jerusalem or slightly unclean outside the city, the Shammaites require the produce to remain in the city, in line with M. 3:5A-B, while the Hillelites rule that the unclean food is to be taken out. 18 A. "[Produce in the status qf] second tithe which entered Jerusalem and was ren-

dered unclean, B. "whether it was rendered unclean by a Father qf uncleanness or whether it was rendered unclean by an Qffipring qf uncleanness, C. "whether inside [Jerusalem] or outside [Jerusalem] [M. 3:9A-C]D. the House of Shammai say, 'Let it all be redeemed and eaten inside [Jerusalem]'; E. "and the House of Hillel say, 'Let it all be redeemed and eaten inside [Jerusalem], except for that which was rendered unclean by a Father of uncleanness outside [Jerusalem],'" F. the words of R. Meir. G. R. Judah says, "The House rif Shammai sqy, 'Let it all be redeemed and eaten inside [Jerusalem] except for that which was rendered unclean by a Father rif uncleanness outside [Jerusalem],' 19 18 A similar concern with taking out of a sanctified area items rendered unclean by a major source of uncleanness is seen in M. Sheq. 8:4. Here the Temple veil has become unclean. If the veil became unclean by contact with an Offspring of uncleanness, it is immersed inside the courtyard. If it was rendered unclean by contact with a Father of uncleanness, however, it must be taken out of the courtyard to be immersed and dried. 19 The words "that which was rendered ... " in line E through "except for" in G have been added by Lieberman on the basis of A.

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H. "and the House qf Hillel Sf9', 'ut it all be redeemed and eaten outside [Jerusalem], except for that which was rendered unclean by an Qffspring qf uncleanness inside [Jerusalem] [M. 3:9D--C) ."' I. R. Eleazar says, " [If] it is rendered unclean by a Father of uncleanness, whether inside or outside [Jerusalem), let it be redeemed and eaten outside [Jerusalem]. J. "[If) it is rendered unclean by an Offspring of uncleanness, whether inside or outside, let it be redeemed and eaten inside." K. R. Aqiba says, "[If) it is rendered unclean outside [Jerusalem), whether by a Father of uncleanness or by an Offspring of uncleanness, let it be redeemed and eaten outside [Jerusalem]. L. "[If] it is rendered unclean inside [Jerusalem), whether by a Father of uncleanness or by an Offspring of uncleanness, 20 let it be redeemed and eaten inside [Jerusalem]." M. Said R. Simeon b. Eleazar, "The House of Shammai and the House of Hillel did not disagree about [produce] that was rendered unclean by a Father of uncleanness outside [Jerusalem), that it may be redeemed and eaten outside, nor about that which was rendered unclean by an Offspring [of uncleanness] inside [Jerusalem], that it should be redeemed and eaten inside [Jerusalem]. N. "About what did they disagree? 0. "About that which was rendered unclean by a Father of uncleanness inside [Jerusalem] and [about that which was rendered unclean by] an Offspring outside [Jerusalem]. P. "For the House of Shammai say, 'Let it be redeemed in the Place [i.e., Jerusalem] and eaten in the Place,' Q "And the House of Hillel say, 'Let it be redeemed in the Place and eaten in any place (bkl hmqwmwt)."' T. 2:16 (p. 255, l. 86-p. 257, l. 101; 1: cf. M. Sheq. 8:7)

T. cites M. 3:9 and offers alternative apodoses for the dispute. I discern in T. three units: A-H, 1-L and M-Q In A-H Meir and Judah dispute over the proper version of the Houses' opinions. Judah's version is the same as M. 3:9D-C. Both Houses agree that in some cases consecrated produce which is rendered unclean is taken out ofJerusalem. Meir's version of the dispute, however, has the Shammaites hold that in all cases the produce must remain in the city. This is in line with the view of the autonomous authorities in M. 3:5A--B. We see, then, that while Judah holds that the Houses' dispute is irrelevant to M. 3:5's dispute, Meir holds that the Houses clearly stand on the side of the anonymous rule. 20 The words "Let it be redeemed" in J through "Offspring of uncleanness" at K have been added by Lieberman on the basis of A.

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An entirely different version of the dispute, attributed to Yavneans, appears in I-L. Here the authorities do not know the concerns of M. 3:5, but focus, rather, on how the produce became unclean in the first place. Eleazar rules that any produce made unclean by contact with a Father of uncleanness, and which is therefore in a state of virulent uncleanness, must be taken out of the city. Only produce mildly unclean stays in. Eleazar, then, has a definite interest in keeping out of the holy city produce that is severely contaminated. 21 Aqiba makes a distinction on the basis of the location of the produce when it becomes unclean. If it becomes unfit for use as second tithe outside Jerusalem, it may be taken out again, since it was not capable of being used as second tithe already at the time it entered the city. Produce fit for use as second tithe when it enters the city must remain there, however, even if it is later rendered unclean. 22 Simeon b. Eleazar's description of the dispute (M-Q) is congruent to the Houses' opinions as we know them from M. 3:9 D-G. He has simply specified the points of agreement (M) and disagreement (0-Q). 3:10

A. [Produce] purchased with coins [in the status] of second tithe, which becomes unclean [and therefore may not be eaten as second tithe]B. let it be redeemed. C. R. Judah says, "Let it be buried." D. They [the authorities of A-B] said to R. Judah, "If [it is the case that when produce which is designated as] second tithe itself becomes unclean, lo, it must be redeemed, is it not logical that produce purchased with coins [in the status of] second tithe which becomes unclean [also] should be redeemed?" E. He said to them, "No. If you say this in regard to [produce desig-

21 Eleazar's ruling should be compared to the similar position articulated in M. Sheq. 8:4. Cf. note 18 to M. 3:9 above. 22 Both authorities in 1-L are interested in establishing criteria according to which unclean produce may be removed from the holy city. It is possible that the Houses' opinions as we know them from M. are in fact a conflation of the views of these two authorities. Eleazar allows the farmer to remove all virulent unclean produce while Aqiba allows him to remove all produce rendered unclean outside the city. They agree that produce rendered mildly unclean in the city must remain. This is precisely the view ascribed to the Hillelites in M. 3:9F-G. Conversely, Eleazar requires mildly unclean produce to remain in the city and Aqiba rules that any produce rendered unclean in the city must remain. According to this reading, they agree that produce rendered virulently unclean outside the city is removed. This, of course, is the Shammaite position in M. 3:9 D-E. This is further evidence that we are in fact dealing with a second century dispute and not one from the time of the Houses.

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nated as] second tithe itself, which, if in [a state of] cleanness, may be redeemed when it is outside [Jerusalem] (brflwq mqwm), can you say so as regards produce purchased with coins [in the status of] second tithe which, when it is [in a state of] cleanness, may not be redeemed when outside [Jerusalem]?" M. 3:10 (y. Pes. 2:4; A-C: b. Pes. 38a; b. Zeb. 49a)

As we have seen in M. 3:9, produce designated second tithe which becomes unclean may be deconsecrated even after it has been in Jerusalem. M. now turns our attention to produce which acquired the status of second tithe by being purchased with coins in that status. Since such produce is purchased in Jerusalem, it normally may not be taken out of the city and deconsecrated (M. 3:5A-B). What happens if such produce becomes unclean, however, and may no longer serve as second tithe? The anonymous authorities andJudah dispute whether or not in this situation the farmer may, in fact, deconsecrate it, purchasing other produce in its stead. Their dispute is followed by a debate in D-E.

A-B hold that food bought with coins in the status of second tithe and which becomes unclean may be deconsecrated. The reasoning is given in D. Produce which has been separated as second tithe may be deconsecrated if it becomes unclean (M. 3:9). It follows that produce purchased with coins in the status of second tithe may also be deconsecrated if it becomes unclean. That is, produce purchased as second tithe is treated in the same way as is produce originally separated as second tithe. Judah, E, rejects this reasoning. He points out that produce originally separated as second tithe may be sold outside Jerusalem. This is not true, however, for produce purchased as second tithe. It follows, Judah claims, that while the farmer does have the option of deconsecrating produce originally designated as second tithe, he does not have this option in regard to produce purchased as second tithe. If such produce becomes unclean, it follows, the farmer has no choice but to leave it to rot. A. [Produce] purchased with cozns [in the unclean, B. let it be redeemed. C. R. Judah sqys, "Let it be buried." D. Thf!Y said to R. Judah, "Should you what is secondary (btpylh) than [in [M. 3:10A-C)?" E. He said to them, "We find [cases

status] qf second tithe which becomes

rule more strictly [in regards to] regards to] what is primary (b'qr) in which) they rule more strictly

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in regards to what is secondary than [in regards to] what is primary. For [in the case of] a substitute (tmwrh), its [status of] dedication applies to it [even if] it is afflicted with a permanent blemish, but [the status of] dedication [for use on the altar] does not apply (delete: except) to [the animal the farmer originally proposes to dedicate] if it is afflicted with a permanent blemish." F. They said to him, "[Our case is proven] from the example you bring (mmqwm fb'th). Just as [in the case of a substitute], those that are unblemished may not be redeemed, while those that are blemished are redeemed, so here [in the case of what is purchased as second tithe], those that are clean may not be redeemed, [while] those that are unclean may be redeemed." T. 2:17 (p. 256, 11. 101-106) (E: M. Tern. 2:3)

T. cites M. 3:1 OA-c and then gives its own version of the debate. The authorities of A now criticize Judah for being more strict in regard to what is purchased to replace produce separated as second tithe than he is for the originally designated produce itself. While produce originally separated as second tithe may be deconsecrated if it becomes unclean (M. 3:9), Judah does not allow this same leniency in the case of items purchased as second tithe. He responds to A's criticism by pointing out that there are other cases in which what is consecrated in place of another item is in fact treated more stringently than the item it replaces. If, for example, one dedicates an animal for use on the altar and the animal has a permanent blemish, the animal is not deemed to be consecrated. Yet if an animal is made a substitute (temurah) for a dedicated animal, that substitute is in its consecrated status even if it has a permanent blemish. The substitute in this case is treated with greater stringency than the animal it replaces. The same holds true, Judah argues, for produce which is purchased to replace what the farmer separated as second tithe. F. responds by turning Judah's own example against him. An animal designated as a substitute, and which is blemished, may be deconsecrated. It follows that produce purchased as second tithe and which becomes unclean should also be capable of being deconsecrated. 3:11 A A deer which one purchased with money [in the status of] second tithe and which died, B. is to be buried with its hide. 23 23

By requiring the hide to be buried along with the carcass, M insures that the

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C. R. Simeon says, "It is to be redeemed."

D. [If] one purchased it alive and slaughtered it, and it [subsequently]

became unclean,

E. it is to be redeemed.

F. R. Yose says, "It is to be buried." G. [If] one bought it [when it was already] slaughtered, and it [subsequently] became uncleanH. behold, it is [treated] like produce [in the status of second tithe which becomes unclean and is redeemed]. M. 3:11 (B-e: cf. M. Tern. 7:3) Produce in the status of second tithe which becomes unclean is sold, and other foodstuff is purchased in its stead (M. 3: 10 B). The question now is whether or not animals are analogous to produce such that if the farmer purchases an animal as second tithe and it becomes unclean, it too is sold and replaced with other edibles. In dealing with this problem, the pericope distinguishes between living animals and animals that have been slaughtered and are thus ready to be used as food. According to G--H, the analogy does hold if the farmer purchases a slaughtered animal, that is, meat. Like produce, meat is a food item and so, the authority behind G-H reasons, is to be treated in the same way. It is sold if rendered unclean. In A-C and D-F, however, the farmer purchases a living animal for use as second tithe. While the farmer intends to slaughter the animal, it is not a food at the time it is rendered unclean. Under dispute is whether or not the farmer's intention to use the animal as food nonetheless imposes on it the status of food, so that if it becomes unfit for use it is sold. This point is brought out by the disputes in A--c and D-F. In A-C the animal which the farmer purchases dies before it is made fit for use as food. The dead animal as nebelah24 is forbidden for consumption. Since the animal was never in the status of food, B rules

farmer will receive no benefit whatsoever from his contaminated deer. The same stringency applies if an animal unfit for the altar is purchased as a peace-offering (M. 1:4). The point is that if the consecrated animal is not fit to be used for the purpose for which it is purchased, no part of the animal may be used for the benefit of the farmer. If the farmer is able to properly use the animal, however, the hide is deemed to be his to do with what he will (M. 1:3). 24 Nebelah refers to an animal which has died of natural causes, or one which has been slaughtered improperly. This is in distinction to an animal which is suffering from a fatal accident or disease. In this latter case, the animal is in the status of tmfoh. In either case. the animal is forbidden for consumption. Cf. Lev. 22:18, Deut. 14:21.

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that it is not to be treated like produce. That is, the farmer may not sell the unclean carcass and replace it with other edibles. Simeon disagrees. The farmer bought the animal with the intention of using it as food. It follows, Simeon holds, it must be treated as such. D-F presents a case in which the farmer purchases a living animal and then properly slaughters it, thereby making it ready for use as food. This meat subsequently becomes unclean, giving us a case like that of G-H. The anonymous rule declares that the meat, which is in the status of food, is sold and replaced with edibles. Y ose (F) disagrees, claiming that the unclean venison is buried. His point, presumably, is that meat is never analogous to produce. Laws which apply to fruit, therefore, cannot be made to apply to animals. If meat which the farmer prepares as second tithe becomes unclean, therefore, it may not be sold. y ose, then, clearly stands in opposition to the presupposition which generates the rest of the pericope. 3:12-13 A. B. C. D.

He who lends out jugs [to hold wine 25 to be sold as] second tithe, even if he corked them [i.e., the jugs] [he] does not acquire [the status of] second tithe for the jugs. If he poured [wine] into the jugs without specifYing (stm) [that the jugs were not being sold but only lent] 26E. before he corked them [he] does not acquire [the status of second] tithe [for the jugs). F. Mter he corked them, [he] does acquire [the status of second] tithe [for the jugs). G. Before he corked them, [consecrated liquids contained in them] are neutralized [in a mixture of] one hundred and one [parts of unconsecrated liquid]. 25 Although T. declares that we are talking only about jugs of wine, this is not so specified in M. I have supplied "wine" in the translation simply for convenience's sake and not to indicate agreement with T. 's qualification. 26 It is not clear from the Hebrew to what the verb "specifYing" refers. I have interpreted the passage according to the view of Maim., which is also adopted by TYT and Albeck. Sens. (relying on y. M.S. 3: 10) followed by Bert. and TYY adopts an alternative interpretation. According to this second view, "specified" refers to the wine being poured into the jugs and not to the jugs themselves. Accordingly, the pericope is understood to concern a farmer who is separating second tithe from his wine. If he designates certain wine to be second tithe and then pours it in jugs, the jugs remain unconsecrated. If, however, he pours untithed wine into the jugs and then designates the wine to be second tithe, the jugs also become consecrated, if they were already sealed. I have chosen Maim.'s interpretation over Sens' on the basis of M. 3:13, which clearly relates the law to selling the produce, and not to separating it from untithed produce.

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H. Mter he corked them, the jugs render consecrated any number [of corked jars containing unconsecrated wine with which they become mixed]. I. Before he corked them, he may remove heave-offering from one jug for all [the jugs in the heap]. J. Mter he corked them, he removes heave-offering from each jug [individually] (mkl 'bJ w'h.t). M. 3:12 (G: c£ M. Ter. 4:7; H: c£ M. Or. 3:7) K. The House of Shammai say, "[If a wine merchant does not want a corked jug to be purchased along with the wine it contains], he opens [the jug] and pours [the wine] into the vat." L. And the House of Hillel say, "[The merchant] opens the jug, but he does not need to pour [the wine back into the vat]." M. To which [case] does this apply? N. In a place where [jugs] are normally sold sealed. 0. But in a place where they are normally sold open, the jug does not [remain] unconsecrated [i.e., it is purchased along with the wine] [= M. 1:4M-N]. P. But if he [i.e., the merchant] wanted to impose a stringency upon himself and sell [the wine] only by [exact] measureQ the jug [remains] unconsecrated. R. Simeon says, "Also: he who says to his friend, 'I sell to you this cask [of wine] except for its container (reading with most MSS mknknh)'S. "the jug [remains] unconsecrated." M. 3:13

A farmer is purchasing wine for use as second tithe. Along with the wine he receives the jug in which it is contained. Is this jug also deemed to be in the status of second tithe? If it is, then it must be resold and food purchased in its stead. The status of the jug, these pericopae declare, depends on the merchant's intention in giving it to the buyer. If the grocer intends only to lend the jug out, it remains unconsecrated. If on the other hand, the seller deems the jug to be part of the sale, it does become consecrated. This notion is articulated in the two rules at A-C and D-F. K-S is a long secondary expansion of D-F. The rules at G-H and I-J are formally parallel to D-F, giving us a triplet. In A-C the merchant makes it known that he does not intend to sell his wine jugs. Rather, he loans them out for the convenience of his customers. Since the jug is not part of the sale of the wine, it does not take on the status of second tithe from the coins used to purchase the wine. D-F presents a more difficult case in that the merchant has not made his intention known. We must turn, therefore, to other signals of his intention. These we find in his decision to cork the jugs or

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to leave them uncorked. If he has left the jugs open, the wine in them will have to be used in the near future. The farmer who buys it will soon be able to return the empty jug and the jug is therefore deemed to be lent out. If the merchant seals the jug, however, we assume that he expects that the buyer will not return it. The farmer who purchases the product has purchased the jug as well and must resell it. 27 G-H and I-J introduce other cases in which the fact that a jug is sealed or unsealed has legal ramifications. In G-H a jug containing consecrated wine becomes mixed in with a batch of other jugs containing unconsecrated wine. If all of the jugs are open, we consider the wine contained in them to intermingle, forming one large batch. Consequendy, if consecrated wine is in such a batch at the ratio of one part consecrated wine to one-hundred parts secular wine, the consecrated portion loses its special status as it would in any other mixture.28 If, on the other hand, all the jugs are sealed, no intermingling takes place. The wine in each jug retains its discrete identity. Since we do not know which jug contains the consecrated wine, the entire collection is treated as though it were in a consecrated status. 29 In I-J we have a similar situation. U ntithed wine is poured into a number of different jugs. Before the jugs are sealed, the wine in them is still considered to be part of the larger original batch. Wine from one jug may therefore be designated as heave-offering or tithe for the rest. Once the jugs are sealed, however, each small quantity is considered to be a separate batch and tithes must now be removed from each jug individually. 30 The Houses' dispute in M. 3:13K-L carries forward the ruling at M. 3:12D-F. There we saw that if the merchant has not specified that

27 A similar interest as to whether or not a jug becomes consecrated when wine it contains is purchased as second tithe appears in M. 1:3-4. There the law states that in a place in which jugs are normally sold sealed, corked jugs are deemed not to become consecrated when purchased with coins in the status of second tithe. On the other hand, if the jugs are normally sold open, then sealed jugs do become consecrated, whether they are open or sealed. See my comments above. These rulings base the law on local selling customs, a factor not mentioned in the rulings before us. This consideration is introduced in M. 3: 13C-E. 28 Cf. M. Ter. 4:7. T. Ter. 5:10 carries this principle one step further. It declares that the contents of a jug remain un-neutralized only if sealed jugs fall in among sealed jugs, and all the jugs remain sealed. All other combinations result in the consecrated liquid becoming neutralized. 29 Sealed jugs are one of six (seven) items listed by M. Or. 3:7 which, when consecrated, render consecrated any number of items with which they become mixed. 3°Cf. T. Ter. 3:8-10.

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he is lending the jugs and, after filling them with wine, seals them, the jugs are deemed to be purchased along with their contents. What must the merchant do if he subsequently decides not to sell the jugs after all? The Shammaites hold that he must undo the entire bottling process. That is, he must pour the wine back into the vat and, after announcing his intention to lend the jugs, refill them again. The Hillelites declare that he need do no more than simply uncork the jugs. As we have seen in M. 3:12D-E, uncorked jugs are deemed not to be sold along with the wine they contain. The Hillelites, then, are concerned only with the physical status of the jugs. The Shammaites, in contrast, are interested in the merchant's intentions throughout the bottling process. M-0 now qualifY the law developed by the Houses. We are told that the preceding rules are applicable only in a place in which jugs of wine are normally sold sealed. In such a place, purchasing open jugs is taken as a sign that the purchaser does not intend to keep the jugs. In a place in which jugs of wine are normally sold open, however, the fact that the farmer buys uncorked jugs has no special significance. The containers are therefore deemed to be soldY At this point, M. introduces two exceptions to the rule that in a place in which wine is normally sold in open jugs, open jugs are deemed part of the purchase. The merchant in F-G sells wine in open containers so that he can easily measure the exact amount of produce he is selling. Since it is clear that the wine is in such jugs for the convenience of the merchant, they are not deemed to become part of the sale. In R -S the seller clearly states that the container is not included in the transaction. This final ruling brings us back to the case of M. 3: 12A-C, in which the seller's intentions are unknown from the outset. In this way the redactor signals the end of his essay. A. He who lends out jugs [to hold wine purchased with coins in the status qf] second tithe, B. even if he corked th~ C. [he] does not acquire [the status qf] second tithe [.for the jugs] [M. 3:12A-q.

D. To which (case] does this apply? E. (To jugs] of wine. F. But (in regard to jugs] of (1) brine. and of (2) vinegar, and of (3) fish-brine, and of (4) oil, and of (5) honey, G. (1) whether he corked them or did not cork them (the jugs] have acquired (the status of] second tithe (M. 3: 12F];

31

C-D bring the law here into line with the ruling of M. 1:4M-N.

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H. (2) whether he corked them or did not cork them [consecrated liquids in the status of heave-offering which are in them] are neutralized [in a mixture of] one [part consecrated liquid] to one-hundred [parts unconsecrated produce] [cf. M. 3: 12CG]; I. (3) whether he corked them or did not cork them, [liquids in the status of heave-offering which are in them] render consecrated any number of jars containing [unconsecrated produce in jugs with which they become mixed] [cf. M. 3:l2H]. J. Under what conditions ()mry) did they say [the jugs] acquired [the status of] second tithe [cf. M. 3: l2F]? K. When all [its contents are in the status of second] tithe. L. But if he left in it (hpqyd) a quarter-log of unconsecrated [liquid], M. whether he corked it or did not cork it, N. the jug has not acquired [the status of second] tithe. 0. Said R. Simeon b. Eleazar, "The House of Shammai and the House of Hillel did not disagree about one who presses (dwrk) [grapes] in a cask [that to indicate his desire to sell only the wine and not the jug] he [needs only to] open [the jug] and does not need to pour [the wine out]. P. "About what did they disagree? Q "About one who presses [grapes] in a vat. R. "For the House qf Shammai Sl!J!, 'He opens [the jug] and he pours [the wine] into the vat. ' S. "And the House qf Hillel Sl!J!. 'He opens [the jug) and he does not need to pour [the wine back into the vat] [M. 3:l3A-B]."' T. 2:18 (p. 256, II. 106-113)

T. cites and qualifies the rules of M. 3:12-13. T.'s glosses of M. 3:12 appear in two blocks of material: D-1 and j-N. 0-Q deals with the Houses' dispute of M. 3: l3A-B. According toM., cited in A-C, jugs acquired from a merchant who normally lends out containers do not take on the status of second tithe. D-F now limit the application of this rule to jugs containing wine. The items listed in F are either too hard to remove (e.g., honey) or impart a strong odor to the pottery (e.g., fish-brine) such that the jug cannot be reused. We assume in these cases that the merchant does not expect the jug to be returned and so considers it sold to the buyer. Whether the jug was corked or left open is now irrelevant. The implications of this qualification are spelled out in G-1. In each case, T. has simply borrowed an apodosis from M. 3: l2F-H and attached its own protasis: "whether he corked them or did not cork them .... "As it now stands, H and I are mutually exclusive. H tells us that the consecrated produce is neutralized in the larger batch while I declares that the entire collection becomes consecrated. GRA, following y. M.S. 3:10,

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deletes the present apodosis in I and substitutes for it the apodosis of M. 3: 12 1: "he may remove heave-offering from one jug for all [of them]." 32 With GRA's emendation, H and I are perfectly consistent with each other. In each case the collection is treated like a single batch. That is, consecrated items which are mixed in with it are neutralized (H) and tithes are removed from any part of the wine for the entire batch (1). ]-N refer to a case in which the jug is deemed to be purchased as second tithe along with its contents (M. 3:12F; F-G above). T. now rules that this is so only if all of the liquid in the jug is purchased for use as second tithe. If the purchaser specifies that only some of the wine is to be purchased with his consecrated coins, then only that wine acquires the status of second tithe. It follows that what has not been mentioned, the rest of the wine as well as the container, do not become consecrated. The final unit ofT., 0-S, comments on the Houses' dispute by giving a case in which the Houses will no longer disagree. As we recall, the farmer has poured wine into jugs and sealed them without specifYing whether the jugs are to be sold or lent. The law assumes that in this case the jugs are sold. If the merchant then decides only to lend the jugs to the buyer, the Hillelites claim that he simply uncorks them, while the Shammaites rule that he must start the bottling process over from the beginning by returning the wine to the vat. Simeon b. Eleazar claims that the Houses will be in agreement if the wine was originally pressed and sealed in the same cask. The wine is already in the original vat and so all that he is required to do is uncork it.

32 Lieberman emends our text to put I in the negative, that is, so the jugs will not render consecrated any jugs they are mixed with. Lieberman does not explain why he prefers to emend I and not H, and in fact his emendation seems to run counter to the principle articulated in M. Or. 3:7. Since these jugs are in fact discrete items to which the status of second tithe adheres, it would seem that they should not be neutralized but should render consecrated the entire batch in which they become mixed.

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MISHNAH-TOSEITA MAASER SHENI CHAPTER FOUR

The bulk of the chapter, M. 4: 1-8, regulates the price a farmer may charge for consecrated produce. It is this money which he takes to Jerusalem and uses there to purchase food he will eat as second tithe. It is essential, therefore, that this money represent the value of the originally consecrated produce it replaces. A concluding unit, M. 4:9-12, takes up a second, unrelated issue. Its concern is with how one treats produce and coins the status of which is in doubt. Characteristically, M.'s redactor has placed a discussion of doubts at the close of a major thematic unit, in this case the tractate dealing with second tithe. Let us now briefly outline the main points of each of these parts of the chapter. M. 4: l-8's interest in establishing the selling price of second tithe produce assumes that produce has no intrinsic material value. It is worth only what consumers are willing to pay for it. It follows that the value of consecrated produce is determined by the price that the same sort of produce commands on the market. The laws of the chapter, accordingly, describe how the farmer determines the market value of his second tithe produce. The discussion proceeds in three steps. First we determine how the selling price is established when the produce is sold on the open market (M. 4: 1-2). Concern then shifts to cases in which the farmer exchanges the produce for his own coins (M. 4:3-5). Finally, (M. 4:6-8), examines cases of uncertainty in which the market value of the produce shifts before the sale is completed. M. 4: 1 states the basic proposition of the chapter: that consecrated produce is sold for the same price as is unconsecrated produce of its same type. This proposition is then the subject of two further developments in M. 4:2. The first of these is that the farmer may calculate the price such that he is able to sell his consecrated produce competitively. This he does by selling the produce at wholesale prices while accepting coins in payment at their premium value. This insures that the farmer will find sufficient buyers for his goods. Secondly, M. establishes a mechanism for setting a price for the produce if similar produce is not sold on the market. In such a case, the farmer auctions his consecrated food to the highest of at least three bidders (M. 4:2F-G).

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The second unit of this discussion, M. 4:3-5, turns to a related topic, the case in which a farmer transfers the status of second tithe from the produce to his own coins. M. follows Lev. 27:31 in stating that in such a case the farmer must pay an added fifth over the normal selling price of the food. The discussion here concerns how this scriptural law is applied. M. 4:3A-D declares that this fee is treated stricdy as a surcharge and not part of the basic selling price of the produce. Thus the added fifth is not taken into account when the farmer is entering a bid to establish a price for his produce as in M. 4:2. M. 4:3-5 develop the notion that this added fifth is paid only when the farmer transfers the status of second tithe from his own produce to his own coins. He thus can avoid payment by arranging to have a member of his household buy the produce. Since another person is buying the produce, the farmer is not liable for the added fifth even though both the coins and the produce remain in his domain. We tum in M. 4:6-8 to the third topic of concern, the special problems created by constandy changing prices. Specifically, M. 4:6 describes a situation in which the market value of produce in the status of second tithe changes after the purchaser agrees to a selling price but before he makes payment. The result is that the amount of money which the purchaser will pay to the farmer no longer reflects the market value of the consecrated produce he is buying. If the produce has decreased in value, the purchaser ends up giving the farmer more money than is necessary to deconsecrate the produce. In this case, M. declares that the extra money remains unconsecrated. Conversely, if the produce has increased in value, the money used to purchase it will be insufficient fully to deconsecrate it. M. rules that in this case some of the produce retains its consecrated status. The purchaser must be sure to take this portion of the produce to Jerusalem or to deconsecrate it. This discussion leads into a secondary issue, debated by Y ose and Judah in M. 4:7. The question is whether the payment of coins is sufficient to deconsecrate produce or whether the purchaser must also make an oral declaration declaring his intention. y ose declares that such a declaration is unnecessary while Judah holds that it is required. M. 4:8 concludes the discussion of shifting market prices, begun at M. 4:6, by considering the value at which the consecrated coins themselves are spent in Jerusalem. M. 4:8A-F state that the purchasing power of these coins is not fixed but changes according to local market conditions, in this case Jerusalem. In this way, M. 4:8 restates the

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same principle introduced at M. 4: l-2. M. 4:8G-I make the related point that since these coins have no set market value, they may be deemed fully deconsecrated even if a small portion of their value remains unspent. The second part of the chapter, M. 4:9-12, introduces considerations of doubt and with this concludes M.'s discussion of second tithe. Under consideration are cases in which coins or produce are found but it is not known whether or not they are in the status of second tithe. According to Judah (M. 4: l 0) and the anonymous opinions of 4: 11 and 4: l2D-I, if there is any evidence that they are in a consecrated status, they must be treated as such. Y ose, on the other hand, claims that in all cases of doubt, the coins or produce are deemed to be unconsecrated. 4:1 A. One who carries (hmw!Jk) produce [in the status of) second tithe from a place [where it is] expensive to a place [where it is) cheap, B. or from a place [where it is] cheap to a place [where it is) expensive, C. redeems it according to the market price (f'r) of his [current) location. D. One who brings produce [in the status of second tithe) from the threshing floor to the city, E. or (w) jugs of wine from the vat to the cityF. the increase in value [accrues to the] second [tithe) G. and the expenses [involved in transporting the produce) come out of the farmer's pocket (mbytw). M. 4:1

The farmer is selling his consecrated produce in accordance with Deut. 14:23. The money he receives from the sale is used in Jerusalem to buy food to be eaten in place of the original. The problem is to insure that the full value of the produce is transferred to the money so that the money the farmer brings to Jerusalem is equal in value to what he originally designated as second tithe. M. declares that this value is determined by the market-price of the produce at the time and place of sale. The reason is that, for M.'s authorities, produce is worth only what consumers are willing to pay for it as food. It has no intrinsic material value. It follows that its value at the time of redemption is the price that the same type of food commands on the local market. This is the point of A-C. D-G illustrate and augment this point. The farmer brings his second tithe to the city market, where it fetches a

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higher price than it would in the country. The produce is sold at this higher price, as A-C have told us. G makes the obvious point that the farmer may not use part of the money he receives to cover the expense of bringing the produce to the higher-priced market. Rather, its full amount must be brought to Jerusalem and spent there on food to be eaten as second tithe. A. One who carries produce [in the status qf] second tithe from a place [where it is] expensive to a place [where it is] cheap,

B. or from a place [where it is] cheap to a place [where it is expensive], C. redeems it according to the market-price if his [current] location [M. 4: lA-C]. D. Said R. Joshua b. Qorha, "To which [case] does this apply? (To a case in which it has been separated] from doubtfully tithed produce. But if it was separated from certainly untithed produce, it is redeemed at the more expensive market-price (kf'r lrywqr). T. 3:la (p. 257, ll. l-3) (Cf. y. M.S. 4: l)

T. cites and glosses M. 4: lA-C. According to M., the farmer may bring his produce in the status of second tithe to a low-priced market, even though he receives less money in exchange for the consecrated produce. Joshua, D, now takes away what M. has given. According to him, this rule applies only to produce removed as second tithe from produce which may already have had tithes removed. 1 What is now designated as second tithe may not be in that status at all. This type of produce may be sold cheaply. Produce certainly in the status of second tithe, however, must be deconsecrated at its highest market value. His ruling certainly will benefit the merchants of Jerusalem. A. One who brings produce from the threshing-jloor to the city [M. 4: l D],

B. [and thenJ separated heave-offering and gave it to a priest, first tithe and gave it to a Levite, poor man's tithe and gave it to a pauper, C. does not deduct (mhso 'mhn) the cost of transporting (the produce to the city, thereby reducing the amount of these gifts]. D. But ('b~ if he designated these [gifts] at the threshing-floor, lo, he does deduct the cost of bringing [the produce to the city]. E. One who sells to his friend produce and says to him, "The produce I sold you is untithed,"

1 A person who is scrupulous about the laws of tithes will separate agricultural gifts even from produce which may already have had tithes removed. In this way, the householder knows that these gifts have been separated at least once. Since what the householder separates may not in fact be in a consecrated status, it is treated more leniendy than produce which is certainly in a consecrated status. Joshua's ruling here is consistent with this general principle.

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F. G. H. I.

[if he sold him] meat [and says to him], "It is meat from a firstling;" [if he sold him] wine [and says to him]: "It is libation wine"that which they have eaten is eaten [but] let him [the seller] return their money. J. R. Simeon b. Eleazar says, "[As regards a thing] which is disgusting to eat (hnpf qJ.h bw) [such as terifah, nebelah, or creeping things], 2 that which is eaten [by mistake] is eaten, but [the seller] returns his money. 3 K. "And [as regards] a thing [which is not proper to eat but] which is not disgusting to eat [such as untithed produce, firstlings, and wine used for libations], [the seller] deducts from the money [he must return the value of the produce which was eaten]." T. 3:12 (p. 260, II. 37~44) (E-I: b. Bek. 37a)

In A-D we assume that it is to the advantage of the recipients of heave-offering and tithes to have their produce brought to the city. The question before us is who must pay the cost of transporting it. As we shall see, the answer depends on who owns the produce. In A-c the produce has not yet been designated as heave-offering and tithe and therefore, according to Rabbi, still belongs to the farmer. He, therefore, must bear the cost of bringing it to the city. In D, on the other hand, the produce is already designated as heave-offering or tithe when it is being conveyed to the city. Since it now belongs to the priests, Levites or paupers, they must bear the cost of transporting the produce to the city. In E-I proscribed produce is mistakenly sold to one who may not consume it. E~G hold that the transaction is undone, with the seller refunding the purchase price and the buyer returning whatever he has not already consumed. 4 Simeon b. Eleazar holds that the amount of money to be refunded depends on the nature of the produce. If the produce is by nature disgusting, the entire purchase price is refunded. We assume the consumer received no benefit from it at all. If, however, the produce was in fact usable, the merchant needs to give a refund only for what is actually returned by the consumer. The buyer did in fact benefit from the produce he ate.

The identities of the foods are from HD. Delete: "and let him repay" to "what was eaten is eaten" with E. See Lieberman, TK, p. 758. 4 The consumer returns only the uneaten produce and does not need to replace what he has wrongly eaten. This ruling is in agreement with both Rabbi and Simeon b. Gamaliel in T. 3:10. As we recall, Simeon holds that the consumer must replace produce which he consumed knowing that it was prohibited to him. 2

3

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4:2 A They redeem [produce in the status of] second tithe according to its lowest selling price (kf'r h;:;~: B. [the rate] at which the shopkeeper buys and not [the rate] at which he sells: C. [the rate] at which the moneychanger sells [small change] (pwrt) and not [the rate] at which he buys [small change] (msrp). D. And they do not redeem [produce in the status of] second tithe by estimating [its worth] ('kfrh). E. [Produce] the price of which is known is redeemed according to the [valuation of] one [buyer: so T. 3:5] ('d lacking in most mss.), F. and [an item] the price of which is not known is redeemed according to [the valuation of] three [buyers]. G. For example: wine which has formed a film (fqrm, most mss. read fqff: which turned sour) or produce which has begun to rot or coins which are rusty. M. 4:2 (A-c: y. M.S. 4:2; F: M. San. I :3; E-G: b. San. 14b)

Although the farmer must sell consecrated produce for its full market price (M. 4:1), M.'s authorities want to make it possible for the farmer to sell the produce at a competitive price. The assumption is that the farmer is selling the produce because he is unable to bring it all to Jerusalem. It therefore is important that he be able to sell it all. The rules before us explain how the farmer can set a competitive price for his consecrated food while technically receiving in exchange a price in accord with local market conditions. The rules are of two sorts. In the first place, the farmer may sell the produce at its wholesale price (B). In this way he can offer it for a price that is lower than that found at neighboring stalls. In addition, he may accept the purchaser's money at an inflated value. This he does by according to the purchaser's coins the higher value they would have when sold by a moneychanger (C). 5 D introduces a secondary issue, spelled out at E-G. The point is that consecrated produce must be sold at a price set by the market and not by a price arrived at privately by the farmer and a prospective

5 For example, a dinar is normally worth twenty-four issars. A moneychanger, however, might buy silver dinars for twenty-three issars and sell silver dinars for twenty-five issars each. The dinars he sells, then, are worth four percent more than the normal value. At this rate, the buyer can purchase six hundred issars of produce for twentyfour dinars (at twenty-five) issars to a dinar rather than for the usual twenty-five dinars (at twenty-four issars to the dinar).

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buyer. This is no problem when the type of produce being sold has a known market price. Since the price is public knowledge, the farmer can take the buyer's word for what the price should be (E). A difficulty arises, however, if no similar produce is available in that market. Now there is no market price on which to base a selling price. F declares that, in this case, a market price is created by auctioning off the produce. A minimum of three bids is assumed to constitute a market for this purpose and the consecrated produce may be sold for the highest offer. G supplements F by supplying examples of items which, being damaged, have no pre-established market value, and so must be auctioned. E. 1hf!Y redeem produce [in the status if] second tithe according to its lowest selling price: F. [the rate] at which the shopkeeper buys and not [the rate] at which he sells [M. 4:2A-B]. G. R. Simeon b. Eleazar says, "[At the rate] at which the shopkeeper buys [produce] of that same type." T. 3:lb (p. 257, II. 3-5)

T. cites M. 4:2A-B, supplying a gloss at G. Simeon specifies that the value of produce to be deconsecrated is set according to the market price of the same kind of produce. This prevents the farmer from selling his consecrated produce at the price accorded to cheaper items. A. A farmer who sells (pwrt) a silver dinar [in the status of] second tithe [for small change]B. [does so at the higher value it has] when the shopkeeper buys [produce wholesale] and not [at the lower value it has] when he [i.e., the shopkeeper] sells [produce retail] [M. 4:2B]. T. 3:2 (p. 25 7, II. 5-6) A. One who buys a gold dinar [in the status of] second tithe [with small change]B. [does so at the high price] at which the mon9changer sells [gold dinars] and not [at the low price] at which he [i.e., the monf!Ychanger] buys gold dinars [M. 4:2C]. T. 3:3 (p. 257, II. 6-7) A. "One would take [a gold dinar] from one place to another and earn a profit (ytr 'l fywyw) of a roba' [one half dinar]," the words of R.Judah. B. R. Eliezer says, "Up to [a silver] dinar." T. 3:4a (p. 25 7, ll. 7-9) (Cf. y. M.S. 4: I)

T. carries forward the principle ofT. 3:la, now applying it to coins. It requires the farmer to sell coins in the status of second tithe at their highest market price. The result is an increase in the amount of money

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which the farmer receives and eventually takes to Jerusalem. In making this claim, T. reverses the position taken up by M. 4:2, which declares that the farmer may sell his consecrated merchandise cheaply so that it will be easily sold. We have a doublet at T. 3:2-3 with autonomous material added at T. 3:4a. We deal first, T. 3:2, with a case in which the farmer is selling a coin of large denomination. The coin is given the value it would have in the hands of a shopkeeper buying produce wholesale. At wholesale prices the dinar purchases more produce and therefore has increased value. By selling the dinar at this higher value, the farmer increases the value of coins he receives in return. The same result is achieved in T. 3:3. A householder is buying from a farmer a gold dinar in the status of second tithe, giving the farmer small change in return. The householder pays for the gold dinar the price a moneychanger would charge when selling it. Since a moneychanger demands a high price for coins he is selling, the householder must pay a premium price for the gold dinar. The result again is an increase in the total value of coins being consecrated. T. 3:4a serves as an appendix to the foregoing, indicating that the relative value of coins fluctuates from market to market. It is therefore possible for the farmer to receive more money for his consecrated coins simply by selling them in a different location. From Eliezer's comment that the value of the coin can increase by a dinar, it is probable that the coin in question is not itself a silver dinar but a gold dinar, which 1s equivalent to twenty-five silver dinars. 6 C. [As regards produce in the status of] second tithe [which] has no valueD. it is required (dyn hw,) that he says, "It and its added fifth 7 are deconsecrated with this issar (one twenty-fourth of a dinar)." T. 3:4b (p. 257, ll. 9-10) (Cf. y. M.S. 4:3)

6 According to HD, T. is meant to limit the amount of monetary speculation that the farmer can engage in. He takes for granted that if the farmer exchanges his dinars at a more favorable rate than he could in Jerusalem, the profit remains unconsecrated and the farmer may use it to his benefit. Judah's rule would limit the farmer's windfall profit to one roba' per gold dinar. Eliezer allows him to realize a dinar's profit. Cf. Lieberman, TK, p. 752. 7 The farmer may deconsecrate produce in the status of second tithe by transferring its sanctity to some of his own coins. When he does so, he figures in an additional one-fifth of the produce's value when determining the amount of money he must consecrate. This notion is derived from Lev. 27:31. Cf. M. 4:3.

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The farmer has produce in the status of second tithe which has no market value. Since some sanctity does inhere in the produce, it is deconsecrated for some small amount of money. I do not know why T. specifies an issar.

A. [Produce in the status of] second tithe the value of which is not known is redeemed according to [the valuation of] three bidders (lqwflwt) [cf. M. 4:2F], B. and not according to [the valuation of] three who are not bidders, C. even if one [of the bidders] is a non-Israelite, D. even if one [of the bidders] is the owner [of the produce] (reading singular for b'lym). E. They force the owner to open [the bidding] (lptwh r,fwn). F. If he says, "Lo, it is mine for an issar," he may retract [his bid if it is shown to be unreasonable]. G. This [is a case in which the law] is more stringent in regard to dedicated [items] than [in regard to produce in the status of] second tithe. T. 3:5 (p. 257, l. 10258, 1. 13) (A: T. San. 1:2, T. Arak. 4:2; A-D: y. M.S. 4:2) A restates M. 4:2, which declares that three bidders can establish the price of produce not otherwise found on the market. B-D gloss A. It rules that any prospective buyer may enter a bid, even the owner himself. If the owner is one of the bidders (E-G), he opens the bidding. If his bid turns out to be too low, he is allowed to retract it, accepting for his produce the price set by the others. It is not clear to what stringency G refers. Lieberman suggests that it has to do with the owner's right to retract his bid. 8 He finds a parallel to our law in M. Arak. 8: 1. There, a farmer dedicates a field to the Temple at a time in which the Jubilee is not in effect. The farmer can regain ownership of the field only by redeeming it. The value of the field is established by three bidders, and if the owner is one of the three bidders, he enters his bid first. No mention is made of his right to retract his first bid. The law of dedication therefore appears to be more stringent than that for second tithe because, in the case of a dedicated field, the owner is not given a second chance to redeem his property. A They do not redeem [items in the status if] second tithe by estimating [their worth] [M. 4:2D]. 8

See Lieberman, TK, p. 753.

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B. How so? C. [If] one had rotting produce or rusty coins. [cf M. 4:2G] D. he should not say, "How much is one willing to pay for this collection [of coins], and how much is one willing to pay for this heap [of produce]?" E. Rather he says, "How much [of this] produce is one willing to purchase for a sela' and how many [of these] coins is one willing to purchase for a [silver] dinar?" F. "How much [weight] may [a coin] lack until [produce in the status of] second tithe may not be deconsecrated with it? G. "[In the case of] a sela', four issars [one twenty-fourth of a sela']; [in the case of] a dinar, one issar [one twenty-fourth of a dinar]," the words of R. Meir. H. R. Judah says, "[In the case of] a sela', four dupundia [one twelfth of a sela1; and [in the case of] a dinar, one dupundium [one twelfth of a dinar]." I. R. Simeon says, "[In the case of] a sela', eight dupundia [one sixth]; and [in the case of] a dinar, two dupundia [one sixth]." J. [If the coin lacks in weight] more than this, it [is used for] deconsecrating according to its actual [weight] [and not its face value]. K. [This holds true] for a sela' until [it weighs only] a sheqel [one half sela'] and for a dinar until [it weighs only] a rova' [one half dinar]. L. [If the coin weighs] even an issar less than this, one is not authorized to deconsecrate [produce] with it. M. If a blank [a coin the features of which have rubbed away] circulates as a sela', but as a [recognizable] coin [it would circulate as] a sheqel, or a blank circulates as a sheqel, but as a coin [it would circulate as] a sela'N. [its value as regards deconsecrating produce in the status of] second tithe is the value [it would have as a recognizable] coin. T. 3:6 (p. 258, 11. 13-22) (F-I: cf M. B.M 4:5; F-J: cf T. B.M. 3:17; K-N: y. B.M. 4:4)

T. supplies rules for determining the price of produce or coins which are damaged. We deal first, in B-E, with items which have only litde market value. Rusty coins are not accepted as legal tender and rotten produce cannot be eaten. The farmer sets a minimum price which he will accept for these items. He then lets the consumer pick an amount of produce or coins he is willing to purchase at that price. F-N deals with coins which have become worn. These are different from the rusty coins discussed in B-E since a value can be set for these coins on the basis of the amount of metal still contained in them. Their market value is determined as follows. If the coin has lost only a small proportion

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of its metal (G-I), it is exchanged at face value. If a significant amount of metal has been lost, but less than half, the coin's value is set in accordance with the proportion of metal that remains (J-K). Once more than half the coin's metal has been worn away, it is deemed to be worthless. The farmer may not use such coins to deconsecrate produce in the status of second tithe. M-N turns our attention to coins the metal content of which is largely intact but the features of which have been rubbed smooth. In this case the denomination of the coins is not evident. 9 If it was originally a sheqel but now appears to be a sela', or vice versa, it is accorded the full value it had when minted. 10 This is so because the coin still contains the same amount of metal as when it was first issued. A One who sells produce to his fellow and it turns out that the produce is untithed B. runs after him to make him properly remove tithes [from the produce] (ltqnn). C. [If] he does not find himD. if it is known that [the untithed produce] [still] exists [i.e., it has not been consumed] [the seller] must separate tithes for it [from his own produce]; E. if it is known that [what he sold] does not exist [any longer], he does not need to separate tithes for it; F. if there is doubt as to whether or not [what he sold] still exists (spq s1tn qyymyn spq s'ynn qyymyn)' he separates tithes for it and he [also] designates tithes [for what he separated, in case the separated produce is not in the status of tithe at all but remains in the status of untithed produce]. T. 3:7 (pp. 258, ll. 22-259, 1. 25) (y. Dem. 7:1) G. One who sells produce to his friend, and the seller says, "I sold you untithed produce," and the buyer says, "You sold me properly tithed [produce] (mtwqnyn)"H. they force the seller properly to remove tithes [for the buyer's produce] from his own [produce]. I. Lo, if the royal authorities (mbyt hmlk) took [produce directly] from the threshing floor]. if [the produce was taken] on account of a debt [the farmer owed], he must separate tithes for it. 9 As I have noted in my commentary to M. 2:6, coins were deemed to have two values: their face value and the value inherent in their material. 10 M. I :2 and T. I :4 rule that produce in the status of second tithe is not deconsecrated with a slug.

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K. If [the produce was] confiscated [against his will], he need not separate tithes for it. T. 3:8 (p. 259, ll. 25-28) (1-K: cf. b. Git. 44a: b. Hul. 13la)

Untithed produce may not be eaten until heave-offering and tithes have been separated for it. A consumer now buys untithed produce but for some reason is not expected to separate the priestly gifts. The responsibility to do so, as we shall see, devolves on the farmer or merchant who sold the untithed produce. Formally, we have a doublet at A-F and G-H followed by an autonomous law at 1-K. We begin with a case in which the merchant unknowingly sells untithed produce and later realizes his mistake. He runs after the purchaser in order to tell him to separate heave-offering and tithes, but is unable to find him. If the merchant has reason to believe that the produce has not yet been consumed, he himself designates heave-offering and tithes for it. If, however, he is sure that the untithed produce already has been eaten, he does not need to designate these gifts. The produce for which tithes were once owed no longer exists. If the merchant is unsure as to whether or not the produce still exists, he separates heave-offering and tithes for it anyway. What he now separates, however, may not enter the status of heave-offering or tithes at all, since the produce for which he designates it may no longer exist. He therefore must designate heave-offering and tithes as well for what he has just separated. In G-H the merchant has located the person who purchased the untithed produce. The purchaser, however, refuses to separate the priestly gifts, claiming that what he bought was properly tithed. Since the purchaser refuses to separate tithes, the responsibility to do so falls on the merchant, as in A-F. In 1-K we see that only if the farmer receives benefit from his crop is he obligated to separate heave-offering and tithes for it. Governmental authorities confiscate produce before the farmer has had a chance to remove priestly gifts. If the produce is taken to repay a debt, the farmer receives some benefit from his produce. He must separate the priestly gifts for it as he would if he sold the produce (A-G). If the produce is simply taken away, with no benefit accruing to the farmer, he is under no obligation to remove the priestly gifts (K). This is so because he was never able to use the produce for his own purposes.

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A "One who eats produce [in the status of] second tithe [as though it were unconsecrated, i.e., outside of Jerusalem or in a state of uncleanness], B. "whether this was by mistake or on purpose, C. "appeals to heaven [for forgiveness] (yz'q lfmym) [i.e., he can not make up for the loss]," the words of Rabbi. D. Rabban Simeon b. Gamaliel says, "[If he did so] by mistake, he appeals to heaven; [if he did so] on purpose, its value is repaid (yh_;:;r dmym lmqwmn)." T. 3:9 (p. 259, 11. 28-30) (y. M.S. 1:11) E. "One who spends ('wk~ coins [in the status of] second tithe, [on produce which is then eaten as though it were unconsecrated] F. "[if he does so] by mistake, appeals to heaven [for forgiveness]; G. "[if he does so] on purpose, its value is replaced [with other produce to be eaten as second tithe] [cf. M. 1:5-6]," the words of Rabban Simeon b. Gamaliel. H. Rabbi says, "Whether [he does so] by mistake or on purpose, its value is repaid. T. 3: 10 (p. 259, 11. 30-32) (y. M.S. 1:1)

We have two alternate positions as to whether or not a farmer who misuses produce or coins in the status of second tithe must replace their value. Rabbi holds that the farmer does repay the value of misused coins but not the value of misused produce. Simeon b. Gamaliel, on the other hand, declares that if the farmer purposely misappropriated either of these items, he must replace their value. These two views have been woven together to form a perfectly balanced doublet. Rabbi's position can be understood in light of the principle adduced at T. 3:7. There we saw that a farmer may designate produce as heaveoffering or tithes to replace other produce, as long as the original produce still exists. If the original produce is eaten, the farmer may not consecrate other produce in its stead. The same restriction is now applied here. If the farmer improperly eats produce designated second tithe, he cannot replace it since it no longer exists. He has no choice then but to pray for forgiveness for having misused consecrated produce. The case, however, is different for coins. The coins, although misspent, continue to exist. It is therefore possible for the farmer to designate other coins to take on the status of second tithe in their place, and he must do so. Simeon b. Gamaliel, as we noted, bases his ruling on the intention of the farmer. If the farmer was aware that he was misusing consecrated

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items, he must replace their value. This prevents him from gaining any benefit from purposely violating the laws of second tithe. If his misuse was an honest mistake, however, Simeon b. Gamaliel rules that he does not need to repay the value of the misappropriated items. The farmer, however, must pray to heaven for forgiveness since he did in fact misuse consecrated goods. A. "One who eats untithed produce [belonging to his friend, pays back the value of [the entire batch including the value of what should have been removed as heave-offering and] tithes from the untithed produce," the words of Rabbi. B. R. Yose, the son of R. Judah, says, "[He pays only] the price of the unconsecrated produce in it." C. An Israelite who ate his produce while it was in its untithed status (btblw)D. even though he is answerable in [the eyes of] heaven, the priest has no claim [against him], E. as it is said, All heave-qffering . .. is the priest's (Nu. 5:9). F. [That is] they [i.e., the priests] have no claim until it is separated as heave-offering. G. The same holds true (wkn) for a Levite who ate his tithe before its heave-offering was removed (btblw): H. even though he is answerable in [the eyes of] heaven, the priest has no claim [against him], I. As it is said, that which is taken as heave-qffering (Nu. 18:24). ]. You have no claim for it until it is separated as heave-offering. T. 3: ll (p. 259, l. 32 p. 260, l. 37) (A-B: b. Qjd. 48b, b. Ned. 84b; C-J: c[ b. tlul. l30b)

A farmer is obligated to give approximately two percent of his harvest to the priests as heave-offering and another ten percent to the Levites as first tithe. 11 The question now is whether or not the priests and Levites own their share of the produce even before the farmer has formally designated produce in his crop as heave-offering and first tithe. As we shall see, the produce belongs to the farmer until he specifically designates it as a priestly gift. We have a dispute at A-B followed by a doublet at D-F and G-J.

11 The notion that produce enters the status of heave-offering only when it is actually designated as such is invoked by the Hillelites in T. 2: II.

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In A someone eats produce for which the priestly gifts have not yet been designated. Rabbi declares that the user owes the farmer compensation for the entire amount consumed. Since none of the produce was designated as heave-offering or first tithe, it all belongs to the farmer. y ose disagrees, holding that the appropriate portion of the produce already belongs to the priests and Levites even though it has not been formally separated. Accordingly, the farmer can claim compensation only for that portion of the produce which would remain after these gifts were removed. The doublet at D-J carries forward Rabbi's view that produce does not become the property of the priests or Levites until it is specifically separated as heave-offering or first tithe. If the farmer eats produce without removing these gifts, therefore, the priests and Levites have no claim against him. He has violated the tithing laws, however, and as in T. 3:9-10, is answerable to heaven. A. The House of Hillel say, "One separates first tithe from doubtfully tithed produce and removes its [the first tithe's) heave-offering and eats it [the remainder of the first titheJ, 12 and does not need to separate second tithe [from the produce at all)." B. The House of Shammai say, "He [also] must separate second tithe [before eating the produce). C. "For I say [reading with E: f'ny], 'If second [tithe] is removed, [we assume] first [tithe] is removed, [but] if first [tithe] is removed, [we do] not [assume] second [tithe] is removed."' D. And the law is according to the House of Shammai. T. 3:15 (p. 260, l. 50p. 261, l. 53) E. "[If one] sees him separating (r' h 'wtw f) second tithe-that person is trusted [to have separated) first [tithe)," the words of R. Eliezer. F. And sages say, "If he is trusted as regards first [tithe), he is trusted as regards second [tithe], [but if he] is trusted as regards second [tithe], he is not trusted [as regards) first [tithe)." G. "If one separates heave-offering, first tithe and second tithe, and [then] eats of produce-

12 The language here is awkward. A states that the farmer separates (mprys) first tithe, leading us to suppose that it is given to the Levites. Yet the end of A indicates that the householder himself eats what should have been given away as first tithe. The point seems to be that the householder must separate produce as first tithe so as to be able to remove heave-offering of the tithe from it. The remainder of the first tithe is now available to be given to any Levite who can demonstrate that first tithe had not yet been taken from the doubtfully tithed produce. If no Levite can establish a claim, the householder is free to consume what he separated as first tithe.

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H. as regards that kind of produce he is trusted [to remove the priestly gifts] but as regards other kinds [of produce] he is not trusted," the words of R. Eliezer. I. And sages say, "Even in regard to that kind [of produce] he is not trusted, J. for it is still in his power (t>kllrymnw) to properly tithe for himself and then to go and spoil it [for others]." T. 3: 16 (p. 260, 11. 53-58) (B: y. Dem. 4:5)

Two separate issues are joined together. In A-D the Houses disagree as to whether or not second tithe need be separated from doubtfully tithed produce. E-J asks whether or not a farmer who is seen separating one priestly gift is trusted to remove others. This latter block of material is linked to the Houses' dispute through the gloss at C. E-J consists of two units: E-F and G-J. Produce which may already have had tithes removed is subject to the removal of some of the priestly gifts, but not of others. Heaveoffering is not removed, since it is assumed that the original owner removed this gift. First tithe, while it is designated, is not given to the Levites unless they can establish a claim to it. This is to insure that all heave-offering due from the crop is separated, since a non-priest who eats heave-offering is subject to death. Heave-offering of the tithe, however, is removed. 13 At issue before us is whether or not the farmer must separate second tithe. The Hillelites rule that he does not need to separate this gift. They assume that the original owner will have separated second tithe, since its separation involves no financial loss on his part (so HD). The Shammaites, however, assume that the original owner separated nothing but heave-offering. They therefore require the householder himself to separate second tithe for the produce. We expect C to supply a reason for the Shammaite opinion, but instead C introduces a new theme and is clearly out of place. We presuppose that

13 It is assumed that the original owner of produce will always separate heaveoffering, even if he is not concerned for the other priesdy gifts. The reason is that one who eats heave-offering improperly is subject to death. Since the farmer loses only about two percent of his crop when he separates heave-offering, he does not suffer financially by separating this gift. He is not presumed to have removed first tithe, however, since this comprises ten percent of his crop, and heave-offering of the tithe is therefore also not removed. The householder who acquires doubtfully tithed produce therefore must separate tithe in order that its heave-offering may be removed. He is free to eat the rest of the first tithe, however, since it cannot be shown that he owes it to the Levites.

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both first tithe and second tithe must be removed, in accordance with the Shammaites in B. Under discussion is whether, if one of these gifts is removed, we can assume that the other has been removed as well. This theme is taken up in E-J. Eliezer (E) repeats what has been said in C: one known to separate second tithe is assumed also to separate first tithe. The reason is that the priestly gifts are removed in a set order: heave-offering, first tithe, second tithe. 14 If second tithe is separated, therefore, we can assume the prior gifts, heave-offering and first tithe, also have been separated. Sages do not agree. They hold that if the farmer is willing to separate first tithe, which he must give to the Levites, he will certainly separate second tithe, which he himself eats. It does not follow, however, that one who separates what he himself can eat will also separate that which he must give away. 15 The consumer in G-1 has been observed to separate all the priestly gifts from a certain batch of produce. Eliezer claims that we can now trust him properly to tithe all produce of that kind. The consumer's action, then, is taken to indicate his commitment to the tithing laws for at least this type of produce. Sages hold that we assume nothing. We deem to be properly tithed only that produce from which we have actually observed tithes being removed. A. One who says, "The second tithe which 1s m this item is deconsecrated with this issar," but did not specifY its [i.e., the second tithe's] location [within the produce]B. R. Simeon says, "He has designated [the coin to be consecrated In place of the second tithe]." C. And sages say, "He has not consecrated the coin] until he specifies [that the second tithe is] in the northern or southern [portion of the item]." T. 3: 17 (p. 261' 11. 58-60) (y. Ter. 3:5; cf. M. Ter. 3:5, y. l)em. 7:5) A. M'sh b: Rabban Simeon b. Gamaliel and R. Judah and R. Yose entered the residence of a householder in Achzib. They said, "We do 14 That this is the expected order for removing priesdy gifts is made clear in M. Ter. 3:6 and at T. Ter. 4:10. Both pericopae declare, however, that if these gifts are separated out of order they are still deemed to have been validly separated. 15 The Hillelites in A held that we can assume that a farmer will always remove second tithe from his produce since fulfilling this law involves no financial loss, the produce remaining in his possession. The householder who acquires doubtfully tithed produce must still designate first tithe and remove heave-offering of the tithes, however. That is, the Hillelites conceive of a situation in which the original farmer separates second tithe but not first tithe. This is exacdy the situation sages allow for in F.

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not know how this householder makes ready (mtqyn) his produce [i.e., whether or not his produce is to be deemed properly tithed]." When he sensed [their unease], be brought before them a chest (dlmsqys, cf. Lieberman TK, p. 763) full of gold dinars which he claimed were in the status of second tithe. They said to him, "How do you make ready your produce?" He said to them. "Like this (kk wkk): I say, 'The second tithe which is in this item is deconsecrated with this issar.'" They said to him, "Go and eat your [own) produce. You have gained the coins [i.e., all your coins are unconsecrated), but you have lost your life [because you have not separated second tithe)." T. 3:18 (p. 261, 1. 60-262, 1. 651)

A farmer wants to designate second tithe in a particular piece of produce and then transfer that status to a coin. The question here is what constitutes proper designation of second tithe such that this status comes to inhere in the produce and so may be removed. Simeon rules that the farmer may make a general declaration that the status of second tithe is in the item. Sages, however, require the farmer to designate as second tithe a particular portion of the item, e.g., its northern or southem half. 16 Only after localizing the status of second tithe in the item may the farmer transfer it to coins. T. 3:18 supports sages' opinion. The householder in Achzib separates second tithe without first localizing it in a specific portion of his produce. His actions are deemed invalid. A. A haber who dies and leaves produce [the status of which is unknown], B. even if [he dies] on the same day he brought them in [from the field C. lo, they are assumed to be properly tithed. T. 3:19 (p. 267, II. 65-66) (T. Toh. 9:6) (Cf. b. Pes. 4b, 9a; b. A.Z. 41 b; b. Nid. 15b y. Ma. 3:3)

A haber here refers to one who is known to faithfully separate heaveoffering and tithes before eating, selling or giving away his produce. If a haber dies, any produce in his possession is assumed to have had heave-offering and tithes removed. This assumption holds even if it appears that he did not have time to properly remove tithes for his harvest.

16 The dispute here has a parallel in M. Ter. 3:5, where Simeon and sages have the same opinions as here. See Peck, Terumot.

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4:3 A. [If] the householder says, "[This produce is worth] a sela'," and someone else says, "A sela'," the householder['s bid] has priority, since he adds an extra fifth [of the selling price to what he must pay]. B. [If] the householder says, "A sela'," and someone else says, "A sela' and an issar," [the bid] of a sela' and an issar has priority, since it increases the principal (qm) [i.e., the original purchase price]. C. One who redeems his own [produce in the status of] second tithe adds a fifth [of its selling price], D. whether [the produce] was [originally his own] or whether it was given to him as a gift. M. 4:3 (B: b. Arak. 27b; M. Arak. 8:2; c~D: b. Qj.d: 54b)

M. 4:3-5 considers a new topic-the added fifth. This is a supplementary fee, twenty percent of the selling price of produce, which a farmer pays when transferring the status of second tithe from his own produce to his own coins. 17 If a farmer has four dinars of produce which he wants to replace with his own money, for example, he must consecrate in its place five dinars in coin. This basic law is stated at C-D. The material at A-B supplies a transition to this topic. This it does by introducing the added fifth into M. 4:2's discussion of auctioning off consecrated produce. In A-B the farmer himself is submitting a bid to establish the selling price of his consecrated produce. He enters the same bid as his competitor. According to A, the farmer's bid is in this case given priority. This is so because he actually pays more for the produce than his fellow bidder, owing the selling price plus an extra twenty percent. B resolves an ambiguity left open by A. It declares that the added fifth is deemed to be a supplementary fee and not part of the selling price itself. The situation in B is such that the second bidder offers a higher market price than does the farmer, but actually will pay less, the farmer owing the one sela' he bid plus an extra nineteen issars as the added

17 The law of the added fifth is based on Lev. 27:31, which states, "If a man wishes to redeem any of his tithe, he shall add a fifth to it." Scripture's law leaves it unclear, however, as to whether the farmer owes an extra one-fifth of the original selling price or whether the fee is to be one-fifth of the final price, one-fourth of the original. The issue is disputed in T. M.S. 4:2, with Eleazar taking the former view and Simeon taking the latter.

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fifth. 18 B rules that in this case the second bidder buys the produce. This is so because he establishes the higher market value of the produce. The extra amount the farmer pays, then, is considered to be a supplement to the market price, not part of the market price itself. A. One who redeems his own [produce in the status Q(] second tithe [M. 4:3C]B. lo, this one is obligated [to pay] the added fifth. C. The same [law applies to] one who ('fld hkums) (1) gathers in [untithed produce] from his own [crop], D. and to (2) one who buys (ffld lwqh_) and to (3) one who inherits and to (4) one to whom [untithed produce] has been given as a gift, E. and to (5) one who purchases (w,M hlwqh.) untithed produce from a Gentile or a SamaritanF. lo, this one is obligated [to pay] the added fifth [when he himself redeems the second tithe separated from such produce]. T. 4:1 (p. 262, 11. 1-4) G. How [do we interpret]: "[This one] is obligated [to pay] the added fifth [cf. T. 4:1A]?" H. He who redeems [the produce] for a sela' [i.e., four dinars] pays five dinars [i.e., twenty-five percent extra]. I. R. Eleazar, the son of R. Simeon, says, "He who redeems [the produce] for a sela' pays an extra fifth of a sela' [i.e., twenty percent extra]." T. 4:2a (p. 262, 11. 4-5)

The rule at A-B is carried forward in C-F and is the subject of the gloss at G-I. A-B cites M. 4:3C, declaring that a farmer who transfers the status of second tithe from his produce to his own coins must pay the extra fifth. According to C-F, this is true no matter how the farmer originally acquired the produce from which the second tithe is separated. The point is that the consumer bears ultimate responsibility for seeing that this gift is removed. G-I ask how we are to calculate the added fifth. H declares that the surcharge is to comprise one-quarter of the market price of the produce, that is one-fifth of what the farmer finally pays (H). Eleazar b. Simeon (I) disagrees, arguing that the surcharge is to be equivalent to one-fifth of the market price. It is notable that such a basic question could still be under debate by Ushans.

18 There are 96 issars in a sela'. If the farmer owes an extra 25% of the selling price of the produce as the added fifth, he must pay one sela' and 24 issars. If he owes 20% as the added fifth, he pays only one sela' and approximately 19 issars. I have assumed the latter figure is in the commentary since it is the least the farmer will have to pay. It thus is the minimal difference between what the farmer will pay and what others must pay.

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]. He who redeems [produce in the status of] second titheK. if he wanted to be particular [about the coins he received], let him be particular. L. How so? M. [If] he deconsecrates [produce in the status of second tithe] with a sela' and [the selaj turns out to be of poor quality (r'h), N. or [if he deconsecrates the produce] with a tressis [i.e., a coin worth three issars] and [the tressis] turned out to be of poor quality, 0. let him exchange [the inferior coin for a coin in better condition]. T. 4:2b (p. 262, 11. 5-71)

A farmer sells produce in the status of second tithe and receives in exchange coins of poor quality. He may, if he so desires, replace these with coins of better quality. This ruling is in line with M. 2:6-9, which declares that the status of second tithe always may be transferred from less desirable to more desirable commodities. 4:4-5 A. They circumvent [the law of] second tithe [so as to avoid paying the added fifth]. B. How so? C. One says to his adult son or daughter [or] to his Hebrew servant or handmaid, D. "Take (h;ylk) these coins and redeem [with them] this [produce in the status of] second tithe [without paying the added fifth]." E. However ('bl), let him not say this to his minor son or daughter, to his Canaanite servant or handmaid, F. for their deed is considered to be his deed [ydn lrydw]. M. 4:4 (A-D: b. Git. 65a; cf. M. Er. 7 :6) G. [If] he was standing at the threshing floor and had no coins with him, he says to his fellow, "Lo, this produce is given to you as a gift," and then immediately says (f1wzr w'wmr), "Lo, it is deconsecrated with coins that are at home." M. 4:5 (b. B.M. 45b)

We have seen that the added fifth is not owed if someone else buys a farmer's consecrated produce or sells produce to him. The present pericopae point out that this is so even if both the coins and the produce remain in the domain of the farmer who designated the produce as second tithe. This view of matters suggests a way in which the farmer can transfer the status of second tithe from his own produce to his own coins without incurring the added fifth. He simply arranges for someone else to buy the produce from him (A-F) or to sell it to him (G). Let us consider each of M.'s cases in more detail.

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In the first case, A-F, the farmer directs a member of his household to buy the consecrated produce. Although the produce remains within the householder's domain, the purchase is effected by someone else. The result is that the added fifth need not be paid. E-F emphasize that the family member whom the farmer enlists for the transaction must in fact be able legally to purchase produce. A minor or Canaanite servant (E) cannot engage in commerce on his own. 19 If the farmer has one of these individuals buy his produce, he has not sold the produce to an independent agent. Rather, he has transferred the second tithe to one of his own dependents. It follows that he must pay the added fifth. G is formally independent of A-F, but adds a second complementary procedure for circumventing the payment of the added fifth. The farmer gives the consecrated produce to his neighbor as a gift. He then declares the status of second tithe to be transferred from it to coins he has at home. He now has consecrated the coins he intends to take to Jerusalem. He does not owe the added fifth, however, since the produce legally belongs to someone else. Mter the transaction, his friend presumably returns the now-unconsecrated produce to the farmer. A. Th'!)! circumvent [the laws qf] second tithe to exempt it from the added fifth. B. How so? C. One sqys to his adult son or daughter, to his Hebrew servant or handmaid, D. "These coins are for you; redeem with them this [produce in the status qf second] tithe [M. 4:4A-D] ." E. However, 1et him not say to him, "Redeem with them on my behalf ((y) this [produce in the status of second] tithe." F. Said R. Joshua b. Qorha, "At first they used to do this. Since swindlers became common (mfrbw hrmyyn), one sqys to his .follow, 'Lo, this produce is given to you as a gift.' And immediate(y says to him, 'Lo, it is deconsecrated with (read with G: the coins) I have at home [M. 4:5G],'

19 Canaanite servants, that is, non-Hebrew slaves, are mentioned only six other times in M. They are acquired by purchase, deed or through serving their owner (M. Qd. I :3). If someone injures a Canaanite slave, the owner is owed compensation (M. B.Q 8:3), unless the owner himself caused the injury (M. B.Q 8:5). The owner also has a right to dedicate them to the priests (flrm) just as he may do with his catde (M. Arak. 8:4). Whatever a Canaanite servant finds belongs to his owner (M. B.M. 1:5) and he is always deemed to be acting only on behalf of his owner (M. Er. 7:6). It is clear, then, that the law in M. regards the Canaanite servant as the personal property of his owner, without individual status. A Hebrew servant, in contrast, is deemed to be an autonomous agent who is legally responsible for his own acts.

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G. "provided that he not say to him, 'Lo, it is deconsecrated by the coins I have in my pocket,' until the householder gives [his fellow actual] possession (fyzkm) [of the produce], or until [the householder] rents [to his fellow] his place [in which the produce is kept]." T. 4:3 (A-D: b. Git. 65a; F: b. B.M. 45b) T. explicitly joins M. 4:4 and 4:5, adding glosses at E and G. M. 4:4 has told us that a farmer may avoid paying the added fifth by having another person buy his produce and then give it back to him. It was clear that the other person had to be an autonomous agent, free to conduct business on his own. T. carries forward this notion by declaring that the recipient also must enjoy full control over the coins or produce he is given. He may not, for example, accept coins on the condition that they be used only to buy the farmer's consecrated produce (E). By accepting coins with this stipulation, the recipient becomes the farmer's agent, and the added fifth will have to be paid. According to Joshua b. Qorba (F), this method was given up when the offspring, or servants, began to accept the farmer's coins, but then refused to use them to buy the consecrated produce. To avoid being cheated, the farmer now gives the other party the consecrated produce, which he then purchases back. Since the person accepting the produce is under the obligation to eat it in Jerusalem, it is to his advantage to allow the farmer to buy it. This tactic is valid only if the second party has legal control over the produce he is given (G). If the recipient does not have legal possession of the produce, it is again as if the farmer purchased his own produce, and therefore he will owe the added fifth. In this way the law of M. 4:5G is linked to the different procedure outlined in M. 4:4. A. One deposits [produce in the status of] second tithe with a f1_aber [i.e.,

one who is careful about the laws of cleanness], B. and [deposits produce separated as second tithe] from doubtfully tithed produce with an 'am ha'ares_ [i.e., who is not careful about the laws of cleanness]. C. Aha Hilpai b. Qeruya says, "At first they used to do this. They reconsidered and decreed (f1_zrw lwmr) that even with a f1_aber, they do not deposit [produce in the status of second tithe], for you never know who will succeed him." T. 4:4 (p. 263, ll. 14-161) The rule at A-B is glossed at C. Produce in the status of second tithe must be kept in a state of cleanness. If the farmer wishes to leave such produce with another person for safekeeping, he therefore must deposit

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it with a person who is meticulous about the laws of cleanness (A). The stringency is relaxed in regards to produce separated as second tithe from doubtfully tithed produce (B), since such produce may not be in the status of second tithe. Hilpai b. Qeruya's gloss at C disagrees with A. Produce in the status of second tithe is not given for safekeeping even to a person who faithfully observes the laws of cleanness. The farmer, who has ultimate responsibility for the produce, cannot be certain that the h_aber will always be in a position to safeguard the produce. A. [If the farmer] sets aside (delete with Lieberman: to him) the market price (qm) [of produce in the status of second tithe] and does not pay

the added fifthB. R. Eliezer says, "Let him eat [the produce as unconsecrated produce]." C. And sages say, "Let him not eat [the produce as unconsecrated produce]." D. Said Rabbi, "The ruling (dbry) of R. Eliezer is preferable (nr'yn) for the Sabbath and the ruling of sages [is preferable] for (add: weekdays)." T. 4:5 (p. 263, 11. 16-18) (b. B.M. 44a) E. One who did not designate heave-offering of the tithe in doubtfully tithed produce F. R. Eliezer says, "Let him eat [the produce as properly tithed produce]." G. And sages say, "Let him not eat [the produce]." H. Said R. Yose, "The ruling of R. Eliezer is preferable for the Sabbath and the ruling of sages [is preferable] for weekdays." T. 4:6 (p. 263, 1. 18p. 264, 1. 20) We have a doublet in which different protases, A and E, introduce identical apodoses, B-D and F-H. In each half of the doublet, sages accept a tithing law which Eliezer rejects. T. 4:5 deals with payment of the added fifth. Sages hold the commonly accepted opinion that a farmer who transfers the status of second tithe from his produce to his own coins must pay the added fifth. Eliezer, however, rules that the surcharge need not be paid. He holds, then, that produce in the status of second tithe is deconsecrated in all events by payment of only its market price. T. 4:6 refers to the designation of heave-offering of the tithe in doubtfully tithed produce. Sages declare that this gift must be designated so that the consumer can be sure that all heave-offering has been accounted for in the produce he is about to eat. 19" Eliezer 19" Cf. T. 3:15. We assume that the farmer, even if he is an 'am ha'ares., always will remove heave-offering from produce he intends to sell. We do not assume he will separate heave-offering of the tithe, however, since he does not separate first tithe. The

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holds that this gift is not removed from, and therefore not designated in, doubtfully tithed produce. According to his view, produce is designated as heave-offering only if it is known for certain that this gift has not yet been separated from the batch. Rabbi and Yose, D and H, attempt to reconcile the opposing views of sages and Eliezer. The sages' view defines the norm, requiring the added fifth to be paid in the case of second tithe and requiring a formal declaration for produce separated as heave-offering of the tithe. Eliezer's ruling is taken to apply to the Sabbath, when the householder is prohibited from deconsecrating his produce (cf. M. Be~. 5:2). We would normally expect that the produce, the deconsecration of which is only partially completed, may not be eaten on the Sabbath but must be kept until a weekday when it can properly be deconsecrated. Eliezer's ruling, as read by Y ose, allows the householder to eat such produce on the Sabbath with the understanding that he will complete its deconsecration when the Sabbath is over. A Two brothers, two partners [or] a father and son may redeem [produce in the status of] second tithe for each other [so as to avoid payment of the added fifth], and they give each other poorman's tithe [cf. M. 4:4~5]. B. Said R. Judah, "May a curse come upon him who gives poorman's tithe to his father." C. They said to him, "What ifboth ofthem [i.e., father and son] were poor?"

D. One's wife redeems on his behalf [produce in the status of second] tithe [without paying the added fifth] according to the words of R. Simeon b. Eleazar. E. One's wife does not redeem on his behalf [produce in the status of second] tithe. F. All those whom they said redeem [produce in the status of] second tithe for each other [so as to avoid paying the added fifth], give each other poorman's tithe [and since a wife is not eligible to receive poormao's tithe from her husband, it follows that she may not purchase second tithe from him] . G. R. Simeon b. Eleazar concedes that as regards one's wife, even though she does redeem [produce in the status of] second tithe [on her husband's behalf], she is not given poorman's tithe. T. 4:7 (p. 264, II. 20~26) (A~C: y. Peah. 5:4, cf. b. Qid. 32a; D~E: y Er. 7:6, y. Qid. I :3; y. M.S. 4:4, b. Qid. 24a) consumer, therefore, must separate heave-offering of the tithe so that all heave-offering in the produce is accounted for.

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The rule at A is glossed at B-C. There follows a dispute at D-E which bears a secondary expansion at F and G. Any legal adult who purchases a farmer's produce in the status of second tithe does not pay the added fifth (M. 4:4). A links such people with those who are eligible to receive poorman's tithe from the farmer, that is, people who are financially independent of the farmer. 20 The question now is whether or not a wife, who is clearly a dependent, is nonetheless considered to be a legal adult such that she may purchase second tithe from her husband without paying the added fifth. Simeon b. Eleazar (D) declares that since the wife is an adult, she may purchase second tithe from her husband without his paying the added fifth. E differs, declaring that the wife does not exempt her husband from the added fifth. As a dependent, she is deemed to be in the same category as a minor or a Canaanite slave. F supports E's ruling by reminding us that these persons who are the farmer's dependents and ineligible to receive poormao's tithe must pay the added fifth when purchasing the farmer's second tithe. Since a wife is ineligible to receive poorman's tithe from her husband, it follows that she may not purchase second tithe from him unless she also pays the added fifth. Simeon b. Eleazar responds, in G, by claiming that the two statuses of adult and dependent are not linked. The wife is a legal adult as regards second tithe, while at the same time she is a dependent as regards her ineligibility to receive poorman's tithe from her husband. A. They separate heave-offering of the tithe for produce [owned by] an 'am ha'ares_ B. even though this leads to a misdeed [on the part] of those who follow [f'w.fh tqlh lb)m 'ilryw] [i.e., those who will later buy the produce]. C. How so? D. [If the 'am ha'ares_ brings the produce out of his house and says to

[the ilaber], "Separate [heave-offering of the tithe] for this," E. he separates [heave-offering of the tithe] only for the amount he buys ['d mqwm snw' lwqil].

T. 4:8 (p. 264, 11. 26-28) F. They deconsecrate [produce in the status of] second tithe [by transferring its status to] coins [belonging to an] 'am ha' ares_

20 The concept of poorman's tithe is derived from Deut. 14:28-29. It is separated in the third and sixth years of the Sabbatical cycle in place of second tithe and is set aside for the poor. This produce is not given to the farmer's dependents since they must be supported out of the farmer's own produce.

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G. even though this leads to a misdeed [on the part] of those who follow. H. How so? I. [If the 'am ha,arq] brings the coins out of his house and says to [the haber], "Deconsecrate [the produce] with these." J. he [the haber] deconsecrates only [the amount of produce] that he intends to buy. K. And he [the haber] immediately gives him [the 'am ha,are,~:] change [pwrt] for a dinar [i.e., he trusts the 'am ha,are,~: not to give him a coin he has just consecrated as second tithe]. L. If [the 'am ha,are,~: gave him the coin] on account of a debt, it is permitted [for the haber to accept the coin since the 'am ha, are,~: would not give him a coin in the status of second tithe]. M. If [the 'am ha,are,~: gave him the coin] as a loan, lo, it is forbidden [for the haber to accept the coin because the 'am ha, are,~: might not know that it is forbidden to loan coins in the status of second tithe]. N. until he [the 'am ha,are,~:] goes into his house and returns [with a different coin]. T. 4:9a (p. 264, 11. 28-32)

(F: cf. M.T.Y. 4:5)

The pericope consists of a doublet at A-E and F-J, followed by appended material at K-N. A flaber is purchasing produce from an 'am ha,are,~:. Since such produce is of doubtful status, heave-offering of the tithe and second tithe must be removed (cf. T. 3:15). The h.aber wants to separate these gifts before making the purchase so that the consecrated produce will remain with the 'am ha,are,~:. To do so creates a problem, however, in that others who purchase produce from the 'am ha, are,~: will assume these gifts have not been removed and so will attempt to separate them again. If the h.aber already has removed heave-offering of the tithe and second tithe, that which the later purchaser sets aside will remain unconsecrated. 21 In order to avoid this, C-E and H-J limit what the h.aber may tithe by declaring that he may separate heaveoffering of the tithe or second tithe only for that produce he himself will buy. The remainder of the 'am ha> ares's produce thus remains in its doubtful status and its purchaser properly removes heave-offering of the tithe and second tithe from it. 22

21 According to Lieberman, the purchaser may separate heave-offering of the tithe from his produce for other untithed produce he has. He will thus be wrongly separating tithes from tithed produce for untithed produce. 22 HD interprets the pericope differendy. A passerby, seeing a flaber separating tithes from the produce of an 'am ha, ares_, might wrongly assume that one may separate tithes from doubtfully tithed produce for certainly tithed produce. To prevent giving this wrong impression, a flaber should separate tithes only from produce the 'am ha> ares_

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K -N discuss a case in which an 'am ha'ares. has coins in the status of second tithe as a result of a transaction such as that described in F-J. The question is whether or not we trust the 'am ha'ares. to reserve his consecrated coins for their proper purpose. In L the 'am ha' ares. gives the h.aber a coin in order to receive change or to repay a debt. Although the h.aber is not certain of the coin's status, he may accept it on the assumption that the 'am ha' ares. knows not to use consecrated coins for secular purposes. The h.aber may not accept a coin as a loan, however, since the 'am ha' ares. may loan a consecrated coin, reasoning that it will soon be returned. If the 'am ha'ares. goes into his house to get a coin, however, we assume he has done so in order to bring out an unconsecrated coin, and the h.aber may therefore accept the coin even as a loan. 0. A minor (qtn; Lieberman emends to stn: wholesaler) who is selling [produce] in the marketP. they use him to separate second tithe (mpryfym 'fyw) [so as to avoid paying the added fifth]. Q How so? R. He [i.e., the farmer] gives him [i.e., the minor] a tressis, S. whether it is in the hand of the purchaser [i.e., the minor] or the hand of the seller [i.e., the farmer] or [already] dropped into the money-purse (b' b'wnqfy wnpl; reading with Lieberman b'ynp!Y), T. he [i.e., the farmer] designates [second tithe in the produce and transfers to the coin] [without paying the added fifth], and may continue to do so (whwlk). U. [If the farmer] receives a dinar from [the minor], he designates [second tithe in his produce and sells it to the minor] and may continue to do so. V. Moreover (wl' 'wd '!'), one may bring a dinar from his house, separate second tithe with it [i.e., by declaring second tithe in the produce to be transferred to the coin], leave, come back and finally give the coin [to the minor] and say to him, "This is the coin with which I deconsecrated [my produce]," [and since the minor can now go through the motions of buying the produce, the added fifth is not paid]. T. 4:9b (p. 264, ll. 32p. 265, 1. 36)

T. liberalizes the rules for selling second tithe to another person so as to avoid payment of the added fifth. As we saw in M. 4:4, a farmer brings out of his house and which he affirms is Jebel, that is, certainly untithed. Similarly, a flaber should not transfer the status of second tithe to coin supplied by an 'am ha are~ lest a passerby assume that one can always trust the coins of an 'am ha' are~ to be unconsecrated.

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can avoid paying the added fifth by giving coins to a legal adult, who then goes through the motions of purchasing with them the farmer's second tithe. 0-P declare that the transaction is valid even if the buyer is a minor, provided that the minor is functioning as an independent agent in the market. 23 The remaining three rules, R-T, U and V, indicate that the transaction is deemed valid, exempting the farmer from the added fifth, even if it is improperly carried out. In R-T the farmer has not given the potential buyer full control over the coins before he declares the produce sold for those coins. 24 In U the farmer receives payment for his second tithe before this gift has actually been separated from the produce. Finally, the farmer, in V, transfers the status of second tithe to the coin before giving the coin to the prospective buyer. If the coin eventually is given to the buyer and the buyer goes through the motions of buying the consecrated produce, the added fifth IS no longer owed. 25 A. (1) [If a .l!aher] receives from him [i.e., an 'am ha'are,£] ten gold dinars [with which to buy second tithe belonging to the 'am ha'are,£], B. he should not use all of them to deconsecrate [the 'am ha'are,f's produce] but [he should deconsecrate only as much produce as can be deconsecrated] with one of [the coins]. C. (2) [If he] bought from him ten kors of wheat, D. he should not separate [second tithe] for the entire lot, but only for one of [the kors]. E. (3) [If he] bought from him ten kegs of wine, F. he should not separate [second tithe] for the entire stock, but only for one of [the kegs]. G. (4) [If he] bought from him ten bundles of greens, H. he should not separate [second tithe] for the entire load (h'nqly), but only for one of [the bundles], I. so as not to cheapen (reading with E, ed. princ: (hph.yt) their value in his estimation (h)nyw) [by flooding the market with produce in the status of second tithe which the 'am ha' ares is anxious to sell]. T. 4:10 (p. 265, II. 36-40) Lieberman suggests emending qtn (minor) to stn or iytwn (wholesale merchant). This ruling runs counter to the concern ofT. 4:3. There the person recruited to act as the buyer had to have full control over the coins before the sale was deemed to be valid. 25 HD declares that this works only if the farmer originally intended to give the coin to the merchant so that he could buy the farmer"s produce. It is the farmer's intention to sell the produce to someone else that exempts him from paying the added fifth. The act of finally giving the coin to the merchant has no legal value, but is simply the final acting out of the farmer's intention. 23

24

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T. carries forward the theme ofT. 4:9a. A haber intends to purchase produce from an 'am ha' are~. He wants to separate second tithe for the produce before the purchase, however, so that the second tithe will remain with the 'am ha'are~. T. declares that the haber may not leave the 'am ha' are~ with a large amount of second tithe. The reason is given in I. The 'am ha' are~ is not concerned with the priestly gifts and so will be willing to sell his large batch of second tithe at a low price. He thereby decreases the value of the second tithe. A. One sells [produce in the status of second] tithe as [ls7n] (add with A: unconsecrated) produce. B. Let him not sell it [i.e., produce in the status of second tithe] as [second] tithe [because the purchaser knows the farmer is anxious to sell it] [cf. T. 4:1 OI]. C. [If] he has unconsecrated [produce] and [produce in the status of] second tithe mixed together and wants to sell them, D. he sells first [an appropriate amount of produce either as unconsecrated or as second tithe and then sells the rest of the produce as the other type] (r'fwn r'fwn) and puts the coins [for each] in a [separate] money-box. E. If he sold them all in one lump (ntnn k:wln bkrk), he receives their payment in one lump. F. Whatever he wants [to sell as unconsecrated produce] he sells as unconsecrated produce and whatever he wants [to sell as second tithe] he sells as second tithe. T. 4: 11 (p. 265, 1. 40p. 266, 1. 44) (Cf. y. M.S. 4:1; E-F: y. A.Z. 5:1) The pericope before us is composed of two rules: A-B and C-F. A farmer is selling produce in the status of second tithe in order to receive coins to take to Jerusalem. According to A-B, he should not announce the fact that he is selling consecrated produce. If the purchasers know that the farmer is selling second tithe, they will assume he is anxious to be rid of it, and they therefore will offer a lower price (HD). The result will be a reduction in the amount of currency the farmer takes to Jerusalem. C-F concerns a case in which a farmer has consecrated and unconsecrated produce which became mixed together. Although the farmer does not know which part of the mixture is consecrated, he does know the proportion of consecrated produce in the whole. The farmer wants to sell all of the produce, setting aside coins equal in value to the consecrated produce, since he will have to take these coins to Jerusalem.

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He may do this in one of two ways. He may sell an appropriate amount of produce as second tithe, putting the receipts in one coin-box. He then sells the remainder of the produce as unconsecrated merchandise, putting the receipts in another box. Alternatively, the farmer may sell the mixture all at once. He must then set aside as second tithe an appropriate value of coins from the receipts. 4:6 A [If a purchaser] took possession (ms'k) from him [i.e., a farmer] [of produce in the status of second] tithe [which is worth] a seta', B. and did not have time (hfpyq) to redeem it [i.e., pay for it] before [the price] went up to two [seta's], C. he pays him [i.e., the farmer] one seta', D. and earns a profit [on the produce he receives] of one sela', E. and [one seta"s worth of produce he acquires is] his [in the status of] second tithe. F. [If a purchaser] took possession from him [i.e., a farmer] of [produce in the status of second] tithe [which at the time of acquisition is worth] two seta's, G. and did not have time to redeem it before [the price] went down to one seta', H. he pays him one seta' in unconsecrated coin and one seta' in [one of] his own coins [in the status of] second tithe. I. If he [i.e., the farmer] was an 'am ha'ares., he [i.e., the purchaser] gives him [coins in the status of] doubtful [second tithe]. M. 4:6 (A-C: b. Qid. 54b)

The selling price of produce is finalized when the purchaser takes possession of it, as A-C make clear. This fact creates a problem peculiar to the deconsecration of produce in the status of second tithe. As we recall (M. 4: 1), the amount of money necessary to deconsecrate such produce depends on the market value of the produce at the time payment is made. In the present case, this market value changes between the time the purchaser takes possession of the produce and the time he is ready to pay for it. The amount of money he has agreed to pay, therefore, is not equivalent to the amount of money needed to deconsecrate the produce. At issue is the quantity of produce which is deconsecrated on account of the sale. As we shall see, the amount of produce deconsecrated with a set amount of money depends on the value of the produce when payment is actually made, regardless of the agreed upon purchase price. Formally, we have a doublet formed of the contrasting cases at A-E and F-H. I qualifies F-H.

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At A-E the amount of money the purchaser has agreed to pay is insufficient fully to deconsecrate the produce. He has agreed to pay one sela' for produce which now is worth two sela's. While the purchaser indeed acquires the two sela's' worth of produce for the one sela', as has been agreed upon, the sale effects the deconsecration of only half of the produce, that is one sela"s worth. Since no coins were given in exchange for the second sela"s worth of produce, it retains its consecrated status (E). 26 The purchaser therefore must be sure to use it as second tithe. The reverse is discussed in F-H. The purchaser has agreed to buy for two sela's produce which later is worth only one sela'. Since the produce is worth only one sela', only one of the two sela's which is paid to the merchant becomes consecrated in place of the produce. The second sela' which is paid clearly remains unconsecrated. This creates a problem for the merchant since there is no way for him to determine which one of the two sela's he receives is consecrated on account of the sale and which one is unconsecrated. There is a danger that he will mistakenly treat the consecrated coin as though it were unconsecrated. H therefore requires the buyer to pay over one sela' of the purchase price in already-consecrated coin. In this way both coins left with the merchant are consecrated and possible confusion is avoided. I repeats a common theme. If the purchaser is an 'am ha' ares_, he is not given an object certainly in the status of second tithe. This 1s so because he is not trusted properly to dispose of such things. ]. [If he) redeemed [i.e., paid for) from him [i.e., a merchant] [produce in the status qf second! tithe [which was worth] a sela' K. and did not have time to take possession qf it (lms'kw) bqore [its price] went up to two [sela's] [M. M.S. 4:6A-B],

26 The interpretation here follows Bert., TYT, Sens, TYY and Albeck. Maimonides, however, reads the Hebrew to mean that the farmer is purchasing produce for use as second tithe. In the first case, according to this view, the farmer selects a sela"s worth of unconsecrated produce, which subsequendy doubles in value. The farmer gives to the merchant only one sela' for the produce, but has, in fact, deconsecrated two sela's'worth of coins. He thus has an extra sela' in his possession which he may spend however he wishes. In D--F the farmer selects two sela's' worth of produce, which subsequendy become cheaper. The produce, then, effects the deconsecration of only one sela' in coin. The buyer, however, still must pay two sela's. This leaves an uncertainty as to which of the coins is in fact deconsecrated. To avoid confusion, the farmer pays one sela' in consecrated coin, which becomes deconsecrated, and one-sela' in unconsecrated coin. The seller is free to use both coins for secular purposes.

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L. that which he redeemed [paid for] he has [validly] redeemed M. and the law has been satisfied (mdt hdyn bynyhm). N. [ lf he] redeemed [paid .for] from him [produce in the status if second] tithe [which at the time if purchase is worth] two seta's 0. and did not have time to take possession of it before [the price] settled at one sela' [M. M.S. 4:6D-E], P. that which he redeemed [paid for] is redeemed Q and the law has been satisfied, R. for [as regards produce in the status of] second tithe, the act of redeeming it [takes place at the moment of] its sale. S. Rabban Simeon b. Gamaliel and R. Ishmael in the name of R. Yohanan b. Baroqa said, "Also: [as regards produce] dedicated [to the Temple,] its redemption [takes place at moment of] its acquisition [by the purchaser]." T. 4: l4c (p. 26 7, H. 62-66) (T. Arak. 4:4; S: y. M.S. 4:6, y. M.S. 5:1)

T. consists of a doublet at J-M and N-Q S is an autonomous unit of law set as a gloss to R. We have here the opposite of M.'s case. A purchaser pays for produce in the status of second tithe, intending to take possession of it later. Since the price already has been paid, the produce is deemed to be fully deconsecrated, and subsequent changes in value are of no concern, as R explains. S declares that in the case of dedicated items. deconsecration occurs at the time the purchaser takes possession of the item, not the time at which payment is made. I do not know why there should be such a difference between items in the status of second tithe and items dedicated to the Temple.

4:7 A. One who redeems [i.e., buys produce in the status of] second tithe but does not make a declaration [that he is redeeming the produce]B. R. Yose says, "It is sufficient for him [simply to pay for the produce without making a declaration]." C. R. Judah says, "He must make it explicit." D. [If] he was speaking to his wife about matters relevant to her divorce contract or her bride-price and did not make it explicitE. R. Yose, "It is sufficient for him [simply to give her the contract or bride-price without a declaration]." F. R. Judah says, "He must make it explicit."

M. 4:7 (D-F: b. Qjd. 6: 1, y. M.S. 6:1; cf. T. Qjd. 2:8, T. Git. 8:8)

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The dispute between Yose and Judah is whether a physical act is sufficient to effect a change of status or whether the act must be accompanied by an oral declaration. We have two disputes which investigate this question, only the first of which is relevant to our tractate. In A-C a farmer buys consecrated produce intending to transfer its status to coins. He does not, however, make his intention known to the merchant. Y ose holds that the mere fact of buying the produce is sufficient to deconsecrate it. Judah disagrees. He holds that the transfer of the status of second tithe occurs only if the purchaser makes known his intention to do so. D-F explore a more ambiguous case. A householder is involved in a discussion with a woman concerning marrying or divorcing her. In the middle of the conversation, he hands her a divorce contract or her bride-price. 27 In this case, the householder's intention is known even though no formal declaration to that effect is made. Y ose (E) of course will consider the transaction valid since in any case he deems the physical act alone to be probative. Judah's opinion is of interest in that he holds that even in this case, the transaction has no effect. That is, for Judah even general knowledge of the householder's intent is not sufficient. He must make a specific declaration of his intention when he hands over the divorce contract or bride-price in order to be divorced or married. 28 A. [If] one was traveling from place to place and had with him coins [in the status of second tithe which he wants to spend on produce to be eaten as second tithe in Jerusalem]B. If he plans [eventually] (ctyd) to return to the place [from which he set out], C. he deconsecrates [i.e., spends] [the coins] at the value [they have] in the place [from which he set out]. D. But if not [i.e., if he will not return to the place from which he set out], he deconsecrates [the coins] at their value in the local market. T. 4:14a (p. 267, II. 57-59)

27 M. Qjd. 1: 1 declares that the bride-price can take one of three forms: an object of value (ksp), a marriage certificate, or sexual intercourse. 28 A similar dispute appears in T. Qjd. 2:8. The householder simply hands over the bride-price without any mention of marriage. As we would expect, Yose deems the woman to be married, and Judah deems her not to be married. Rabbi declares that if they were already talking of marriage when he handed over the bride-price, she is married even without the householder making a formal declaration. This is in line with Yose's thinking in our pericope.

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The issue, as in M. 4:8, is to determine the proper value at which coins in the status of second tithe are spent. We now have a householder who has acquired coins in one area but wishes to spend them in another area, where they have a different purchasing power. According to A-C, the farmer spends the coins according to the value they have at his permanent residence. This is the value he himself deems the coins to have. If he does not expect to return to his former residence (D), he spends the coins at the value in the local market, since he has no other point of reference. The assumption here, familiar from M., IS that the value of coins is established by market conditions. E. [If he] separated heave-offering, first tithe or second tithe but did not designate [the separated produce to be consecrated]F. R. Yose says, "It has become consecrated." G. R. Judah says, "It has not become consecrated [cf. M. M.S. 4:7 A-C]." H. Rabbi says, "If he plans to make the designation later ('tyd lqnvt), [the status of] consecration is not in [the produce] until he makes the declaration. I. "If he does not intend to make the declaration later, it has become consecrated. T. 4: l4b (p. 267' ll. 59-62) (T. Ter. 3:3)

E-G restate the dispute of M. M.S. 4:7. In H-1 Rabbi reconciles the two opposing opinions. The act of separation alone is sufficient, according to Rabbi, unless the farmer intends to make a formal declaration at some later time. In such a case, the farmer does not intend to have the separated produce become consecrated at the time of separation, and we do not therefore consider it to be consecrated until he has made his declaration. If the farmer does not plan to make a declaration at all, his act of separation is sufficient to consecrate the produce, as y ose has ruled. 4:8 A One who sets aside an issar [in the status of second tithe and takes it to Jerusalem] and ate [as second tithe produce purchased] against ('[yw) half of its value, B. and [then] went to another area [in Jerusalem] and lo, [an issar] is worth a pundium [that is, twice its previous value so that the money remaining is worth a full issar of produce]C. [he] eats [against its value as second tithe produce worth] another issar. D. One who sets aside a pundium [in the status of second tithe] and ate [as second tithe produce purchased] with half of its value,

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E. and [then] went to another area and, lo, [a pundium] is worth an issar [that is, half of its previous value so that the money remaining is worth only a quarter of a pundium or half an issar]F. [he] eats [against its value as second tithe produce worth] another half [issar]. G. One who sets aside an issar [in the status of second tithe] eats against its account [in Jerusalem an amount such that no more than] oneeleventh of an issar's value [remains if it is of doubtful status] or so that no more than one-hundredth of the issar's worth [remains if it is surely in the status of second tithe]. 29 H. The House of Shammai say, "[In] all [cases, whether the coin is doubtfully in the status of second tithe or certainly in that status, the farmer eats against its account an amount such that no more than] one-tenth [of an issar's value remains]." I. And the House of Hillel say, "[If the issar is] certainly [in the status of second tithe, no more than] one-eleventh [of its value may remain] and [if it is] doubtfully [in the status of second tithe, no more than] one-tenth [of its value may remain]." M. 4:8 (A-B: y. Qjd. 1:1) This pericope is a triplet (A-C, D-F, G-I) which continues the concern of M. 4:6 in determining the value of coins in a fluctuating market. A farmer sets aside a coin in the status of second tithe intending to deconsecrate it by eating as second tithe in Jerusalem produce of equivalent value. After the farmer uses up part of the coin's value, however, the market price of the produce shifts. We want to know at what market-price the remaining value of the coin is spent. A-C and D-F state that the remaining value of the coin is spent at prevailing market prices, a principle familiar from M. 4: 1. G-I introduce a related but distinct theme. Its point apparently is that consecrated money may be deemed fully deconsecrated even if a small amount of its value remains unspent. The material is difficult to interpret, however, because of the elliptical nature of its language. It 1s necessary, therefore, to explain how I arrive at my conclusion. Before turning to the substance of G-I, we need to consider this unit's formal structure. We have two blocks of material, the statement at G plus the appended Houses' opinions at H-I, giving us three opinions in all. G is unintelligible as it stands, since we do not know to

29 The text of G does not explicitly differentiate between doubtful second tithe and certain second tithe. That such a distinction is in fact intended is clear from the language of H, "in all cases," and the explicit reference made in I.

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what its two figures refer. We must read back into G the distinction made in H-I between coins certainly in the status of second tithe and coins doubtfully in that status. The point of the entire discussion, however, is still unclear. This unit does take on meaning, however, in light of the material presented in the first half of the pericope. As we have seen, A-F introduce the notion that a farmer need not spend at one time the full value of his consecrated coins. That is, he may spend part of the coin's value, allowing the remaining value of the coin to retain its consecrated status. The point of G-I seems to be that if the remaining value is of an insignificant amount, it may be ignored, so that the coin is deemed fully deconsecrated. Under discussion in G-I, accordingly, is the value of second tithe which may be ignored in this way. It is clear from I that one may ignore a larger portion of the coin's value if the coin is of doubtful status than if the coin is surely in the status of second tithe. It is not clear to me, however, how the exact figures supplied in G-I are to be explained. Commentators to this pericope have offered a number of diverse explanations, all of which are unconvincing. Maimonides holds that the unit is intelligible if we assume that the farmer must pay an added fifth when purchasing produce with his consecrated coins. In this way, onetenth of an issar becomes that amount of a coin's value with which a farmer can purchase one-eighth of an issar's worth of produce. Oneeighth of an issar is equivalent to one perutah, the smallest amount of money of legal significance (cf. M. B.M. 4:7). One-eleventh of an issar (H) therefore represents an amount of money that will purchase less than a peruta's worth of produce. Although Maimonides can account for most of the figures before us, he offers no evidence that the added fifth must indeed be paid in these cases. Without this crucial point established, his interpretation is without basis. TYY argues that the issue is the amount of produce freed from the obligation of second tithe when the farmer sets aside an issar in coin as second tithe for the produce. The Shammaites, according to TYY, allow the farmer to eat ten issars' worth: that is, nine issars' worth of unconsecrated produce and one issar of produce which was designated as second tithe and deconsecrated with the coins the farmer set aside. While this explanation does make sense of the Shammaite opinion, it does not account for the figures which occur in the Hillelite opinion or in the opinion of G. H furthermore requires that we treat this unit independently of its redactional context.

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Albeck holds that the dispute concerns whether or not the farmer must eat as second tithe in Jerusalem produce worth more than the value of the coin that was set aside. According to Albeck, the figures in the Houses' dispute are to be interpreted as the number of tenths of a coin's value which must be eaten by the farmer in Jerusalem. The Shammaites, then, hold that the produce must be of value equivalent to the value of the coin, that is, ten tenths. For produce certainly in the status of second tithe, the Hillelites hold that the farmer must eat an extra amount, eleven-tenths in all. This is to insure that the full value of the coin is consumed even if the purchasing power of the coin rises before the farmer purchases produce in Jerusalem. While Albeck's interpretation is sensitive to the thematic context of the pericope, it requires us to read the issue of tenths into the text. The Hebrew text, however, does not support such a reading. A. One who sets aside an issar [in the status if second tithe and takes it to Jerusalem] and eats [as second tithe produce purchased] against half if its value B. and goes to another area and, lo, [an issar] is worth a pundium [that is, twice its previous value] C. eats (w'kl) [as second tithe produce worth] another issar. D. One who sets aside a pundium [in the status if second tithe] and eats [as second tithe produce purchased] against half if its value E. and goes to another area and, lo, [a pundium] is worth an issar [that is, half its previous value] F. Eats (ulkl) [as second tithe produce worth] another half [issar] [= M.S. 4:8A-F]. G. This is the general [rule]: H. Before he has [fully] redeemed it [i.e., before he has deconsecrated the produce by paying for it], any gain in value accmes proportionately [to the consecrated produce and the consecrated coins] and any loss in value accrues proportionately [to the consecrated produce and the consecrated coins]. I. Mter he has redeemed it [i.e., deconsecrated the produce by paying for it fully], any gain in value accrues [entirely] to the [coins consecrated as] second [tithe] and any loss in value accrues [entirely] to the [coins consecrated as] second [tithe]. T. 4:15 (p. 267, 1. 66268, 1. 71)

T. cites M. 4:8 and links it to the underlying principle of M. 4:6. The rule at G-I takes as its subject produce in the status of second tithe in contrast to A-F which deals with coins in that status. The same principle emerges, however. Once a purchaser pays for produce in the status of second tithe, the sale is completed, and the status of second tithe is deemed to be transferred to the coins.

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4:9 A. All coins that are found (some mss. add: in J erusalem) 30 [and the status of which are unknown], B. lo, these [are deemed to be] unconsecrated [i.e., not in the status of second tithe], C. even if [one finds] gold dinars [mixed in] with silver and with [copper] coins [and suspects that this collection was set aside for a special purpose]. D. [if] he found among them [i.e., in a batch of coins] a potsherd upon which was inscribed [the word] "tithe" (m'fr) E. lo, this [batch of coins] is [in the status of second] tithe. M. 4:9 (Cf. M. Sheq. 7:1-2)

The point emerges from the contrast between A-C and D-E. Coins, the status of which is in doubt, are deemed to be unconsecrated unless there is clear evidence to the contrary (D-E). Items are deemed to be in a consecrated status, then, only if there is good reason to assume so. 4:10-11 A. One who finds a vessel upon which is inscribed [the word] "offering" (qrbn)B. R. Judah says, "If [the vessel is made] of clay, it [the vessel] is unconsecrated, but what is in it is [in the status of] an offering. C. "If [the vessel is made] of metal, it is an offering, but what is in it is unconsecrated." D. They said to him, "It is not usual for people to put unconsecrated goods into [a container which is in the status of] an offering." M. 4:10 E. One who finds a vessel upon which is inscribed [the letter] (1) "qif," [the produce it contains is in the status of] an offering (qrbn), (2) "mem," [the produce it contains is in the status of] tithe (m'fr). (3) "dale!," [the produce it contains is] doubtfully tithed (dm'y) (4) "Jet," [the produce it contains is] certainly untithed (1bl) (5) "taw," [the produce it contains is in the status of] heave-offering (trwmh), F. for in the time of danger they wrote [only the letter] "taw" instead of [writing out the full word] "trwmh" (heave-offering). G. R. Yose says, "All [of the letters stand for] the names of individuals [and therefore are not taken to denote the status of produce in the vessel]." 30 The addition of the words "in Jerusalem" makes good sense. Under the Mishnaic system, a large number of coins in the status of second tithe would be taken to Jerusalem. There would be a good chance, therefore, that coins found in that city are indeed in a consecrated status.

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H. Said R. Yose. "Even if one found a cask full of produce and on [the cask] was inscribed [the word] 'heave-offering,' lo, the [pieces of fruit in it] are unconsecrated. I. "For I say that last year it was filled with produce [in the status of] heave-offering but [subsequently] it was emptied [and refilled with other produce] ." M. 4:11 (b. Yeb. 115b)

M. 4: 10-11 carry forward the theme of M. 4:9 concerning found items the status of which is in doubt. Someone finds produce in a jug which bears an inscription denoting a consecrated status. A-D and E-G ask how we interpret this inscription if it is ambiguous, either because it can apply to the vessel or to the produce it contains (A-D) or because it is abbreviated (E-G). Y ose (G and H-I) holds that inscriptions are of no probative value at all. His view thus stands in opposition to the entire discussion. Judah considers a case in which a jug of produce is inscribed as an offering to the Temple (A-D). The inscription can be taken as referring to the jug itself or to the produce or to both. According to Judah, we can determine whether the inscription refers to the jug or the produce on the basis of the jug's composition. If the jug is made of clay, he rules that the jug is unconsecrated, and the label therefore must refer to the produce it contains. Presumably, clay vessels were of too low a value normally to be dedicated to the Temple. If the vessel is of metal, and therefore of higher value, we deem the inscription to refer to the vessel itself. Judah concludes that in this case, since the inscription refers to the container, the produce inside may be deemed unconsecrated. D disagrees, claiming that if we assume the vessel is consecrated, we must make the same assumption of its contents. E-G consider another possible source of doubt concerning the status of produce one finds. This material is linked to the foregoing by the superscription at E. We have a list of common abbreviations used to mark vessels containing food in various consecrated statuses. F, which specifically glosses only E(S), explains that the owner used abbreviations rather than full words in order to save time. This gloss sets the stage for Yose's disagreement in G. As stated above, he holds that inscriptions may not be used to determine the status of produce. He thus rejects the meanings E imputes to these symbols. His view is carried forward, in a different context, in H-I. Y ose now rules that in all events notations may not be used for identifYing the status of a vessel's contents.

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A. [If] one found a vessel upon which was inscribed [the letters] "aleph," "dalet," "resh," [or] "taw," B. lo, it [the produce in the jug] is [in the status of] heave-offering. C. [If the vessel has inscribed on it the letters] ''yod" [or] "mem," D. lo, it [the produce] is [in the status of first] tithe. E. [If it was inscribed with the letters] "pe" [or] "shin," F. lo, it is [in the status of] second [tithe]. G. But the sages say, "All qf these [letters denote] the names qf individuals [M. 4:11G]. H. "But [if] one found a cask full of produce and it had inscribed on it [the word] 'heave-offering,' I. "lo, [the produce in it] is [in the status of] heave-offering, J. "[and if the cask was inscribed with the word] 'tithe,' K. "lo, [the produce in it] is [in the status of first] tithe." L. Said R. Yose, "Even if one .found a cask foil qf produce and it was inscribed with [the word] 'heave-qffering,' M. "lo, these [pieces qf.fruit in the cask] are unconsecrated. N. "For I sqy that last year it was filled with [consecrated] produce but [subsequentlY] was emptied [and rifiiled with unconsecrated produce] [M. 4: llH-I]. 0. "If [the cask] is new [that is, not left over from the previous year], I say he filled it [produce in the status of] heave-offering but then emptied it and refilled it with unconsecrated produce." P. R. Yose concedes that if [the word] is inscribed on a shard and placed on the cask, or on [a piece of] papyrus and placed over [the vessel's] openingQ [if it says] "heave-offering," lo, it is [in the status of] heave-offering, R. [if it says] "tithe," lo, it is [in the status of first] tithe. T. 5:1 (p. 268, 11. 1-8)

T. continues M. 4:11 's discussion of how one uses inscriptions on jugs to determine the status of produce contained therein. The anonymous view in A-F declares that inscriptions which might denote a consecrated status are taken as evidence that the produce in question is consecrated. As in M. 4: 1OE-F, the point is that if there is reason to believe the produce is consecrated, we must treat it as such. 31 Sages, G-K, reject this view, holding that only inscriptions which unmistakably refer to a consecrated status are used as evidence for determining the status of the produce. Yose, L-N, argues a third point. He 31 The abbreviations are resolved in y. M.S. 4:9 as follows: "Aleph" stands for what is removed first; "dalet" stands for dema'i (Lieberman suggests instead dema'); "resh" for what is removed first (r'.fum); "taw," for Terumah. "Yod" indicates a tenth, that is a tithe, and "mem" abbreviates m'fr. Lieberman, TK, p. 776, claims that ''pe" stands for pidyon (that which is to be redeemed as second tithe) and "shin" means sheni, that is, second [tithe].

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claims that in no case is an inscription to be used as evidence for concluding that a batch of produce is consecrated. That is, as in M. 4: 11 G-I, produce is deemed to be unconsecrated unless there is clear evidence to the contrary. 0--R consider two possible objections to Yose's view. In 0 the vessel is new, so that the label cannot be assumed to reflect conditions of the previous year. The label is ignored nonetheless. In P-R the label was laid on top of the jug in such a way that it could be removed easily. In this case, Y ose concedes that the fact that the label is still in place is compelling evidence that the produce in the jug is consecrated. A. "[if] he found a clay vessel on which is inscribed [the letter] 'qrif' [or the wordJ 'offering' (qrbn) [= M. 4: 1OA], B. "it [the vessel] is [in the status of] an offering and what is in it is [in the status of] an offering," the words of R. Meir. C. But sages say, "It is not usual for people to sanctity a clay vessel [as an offering]." D. [If] he found a metal vessel on which is inscribed [the word] "offering" (qrbn)E. if it is empty, it is forbidden to use it until they know that [although] it was [once in the status of] dedication, it has been redeemed [i.e., deconsecrated]. T. 5:2 (p. 268, l. 8269,1.11) F. [.if] he found a clay vessel on which is inscribed [the word] "offering' [M. 4:10A]G. lo, [the produce is in the status of] an offering. H. [If there was inscribed on the vessel the words] "tithes for the [holy] city" (m'fr )r) [that is, tithes to be brought to Jerusalem]!. lo, it is in the status of second] tithe [to be taken to the holy] city. J. [If the vessel has inscribed on it the words] "for Joseph" (lfm ywsp) or "for Simeon" (lfm fmcwn)K. this says nothing [about the status of the produce in the vessel]. L. [If the vessel has inscribed on it the words] "to be brought up to Jerusalem to be eaten,"M. lo, these [pieces of fruit] are unconsecrated. N. [If the vessel has inscribed on it the word] "tithe," 0. they subject it (i.e., the produce] (mrylyn 'lyw) to the restrictions [applicable to] both (first tithe and second tithe since it is not clear to which status the inscription refers] . T. 5:3 (p. 269, 11. 11-14)

A-F go over the ground of M. 4:10A-D. The question is whether or not an inscription denoting a consecrated status refers to the status of the jug on which it is placed or to the status of the contents of the

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jug. G-P consider the implication of a number of diverse inscriptions for determining the status of produce found in a jug. Meir, A--c, declares that a clay vessel bearing the inscription "offering" is deemed to be in a consecrated status. In contrast to Judah in M. 4: 10, he holds that an inscription denoting a consecrated status is always taken to refer to the jug itself. It is, after all, the jug that is marked. Judah's view, that the inscription is assumed only to apply to jugs made of metal, is ascribed to sages in D-F. G-P assume sages' view, that an inscription on a jug refers to the status of produce found in that jug. The inscription is probative, however, only if it explicitly names a consecrated status. If there is doubt as to the meaning of the inscription, the produce is assumed to be untithed. This is also sages' view in T. 5:1G-K. 4:12 A. One who says to his son, "[Coins in the status of] second tithe are in this comer," B. but he [i.e., the son] found [coins] in a different comerC. lo, these [i.e., the coins he finds] are deemed unconsecrated. D. [If] there was there [i.e., in the comer specified by the farmer] a maneh [in the status of second tithe], E. but he [later] found [there] two hundred [zuz] [i.e., two manehs]F. the extra [one maneh's worth of coins] is [deemed] unconsecrated. G. [If there were there] two hundred [zuz in the status of second tithe]. H. but he found [there only one] maneh [i.e., one hundred zuz]I. it is all [deemed to be in the status of second] tithe. M. 4:12 (v. Bes. 1:5; cf. b. Pes. 1Oa, b. Bes. lOb)

The pericope carries forward the concern of M. 4:9-11, determining whether or not, in cases of doubt, coins or produce are in the status of second tithe. In the three cases before us (A-C, D-F, G-1), someone has set aside a batch of coins in the status of second tithe. Subsequently, coins are found either in a different place (A-C) or of a different total value (D-F and G-1). We want to know whether or not these coins are considered to be the ones that were originally deposited, and are therefore to be deemed in a consecrated status. As we shall see, if there are grounds for assuming the coins are consecrated, we must treat them as such. This is the opinion of Judah in M. 4:10. According to A-C, coins found in a location other than that in which consecrated money was left are not deemed to be consecrated. There

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is no reason for assuming that these are the same coins which were originally set aside. D-F and G-1, on the other hand, consider coins which are found where consecrated coins were left but which are of different total value from what was originally set aside. The point here is that an appropriate value from among these coins is deemed to be consecrated. In D-F the individual finds a greater value of coins than what was originally set aside. Since we have no grounds for claiming that the extra coins are in the status of second tithe, we deem consecrated from among these coins only a value equivalent to the value of the initial batch. At G-1 the coins are of less value than the consecrated ones which had been set aside. We assume that all of these coins are part of the original batch, and therefore consider all of them to be in the status of second tithe. A. One who says, "[The produce in the status of] second tithe is deconsecrated with the sela' which will come up in my hand from this pocket," B. or, "with the dinar which will come up in my hand from this pocket," C. R. Yose says. "He has not deconsecrated [the produce]." D. And sages say, "He has deconsecrated [the produce]." E. R. Yose concedes to sages that in [the case of] one who says, "[The produce in the status of] second tithe is deconsecrated with the new sela' which will come up in my hand from this pocket," F. or, "with the new dinar which will come up in my hand from this pocket," G. he deconsecrates [the produce]. H. Sages concede to R. Yose that in [the case of] one who says, "The produce in the status] of second tithe is deconsecrated with the sela' which my son had (snyth byd bny)," I. or "with the dinar which my son had," J. he did not deconsecrate the produce. K. For I say, "What if it were not in his [i.e., the son's] hand at the time [in which he spoke]?" T. 4: 12 (p. 266, ll. 44-50) (A-E: b. Er. 37b; H-K: y. Dem. 7:5) L. One who says, "[The produce in the status of] second tithe is deconsecrated with the sela' which I will receive as change (f'prwt) for this dinar," M. or, "with the tressis which I will receive as change for this sela'" N. makes change for (pwrt.) the dinar and takes a sela' from [the change], 0. [or makes change for] the sela' and takes a tressis from the change], P. [and the status of second tithe is transferred to the smaller coin]. T. 4: 13a (p. 266, ll. 50-52)

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In the dispute at A-D, a householder wants to transfer the status of second tithe from a batch of produce to a coin. Y ose and sages disagree as to whether or not the farmer must designate a particular coin to be consecrated in place of the produce. Y ose holds that the farmer must designate a specific coin while sages hold that this is not necessary. 32 E-G and H-K expand upon the foregoing dispute. In E-G the householder does refer to a specific coin, one which he has in his pocket. y ose therefore can agree that the farmer's declaration in this case has effect. H-K also have the farmer refer to a specific coin, but now in reference to its location. Since the coin may not actually have been where the householder claimed it was, his declaration may have referred to no coin at all. In this case, sages agree with Yose that no transfer in status has occurred. L-P returns to the formulary pattern of A-B. The householder now declares that he will transfer the status of second tithe to a coin which he will receive as change. The case here is similar to that of A-B in that no specific coin is being referred to. The validity of his declaration is in line with sages' opinion in D. A. One who says, "I have [coins in the status of] second tithe in the house," but they are found in the attic; B. [or he says, "I have coins in the status of second tithe] in the attic," but they are found in the house; C. [or he says,] "They are in a bag," but they are found in a chest (dlysqys), D. [or he says.] "They are in a chest," but they are found in a bagE. lo, these [coins are in the status of] second [tithe]. T. 5:4 (p. 267, 11. 14-16) F. [one who says,] "I have [coins in the status of] second tithe," but he went and found them in the house or the attic or a bag or a chestG. 1o, these [coins are] unconsecrated. H. [One who says,] "I have in the house a bag [filled with coins in the status of] second tithe," but he went and found there two or three [bags full of coins] I. [the coins in] the largest are [deemed to be in the status of] second

32 T. 3:17 has the complementary case. Simeon and sages disagree as to whether or not a farmer who is designating second tithe in a batch of produce must specifY a particular portion of the batch. Simeon holds that the farmer does not need to designate a particular part of the batch as second tithe. Sages here would agree. In contrast, sages in T. 3:17 require a specific portion of produce to be designated, a view congruent to Yose here. C£ M. Ter. 3:5.

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Q R. S.

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tithe and [the coins in] the two smaller [bags] are deemed to be unconsecrated. He should not eat [produce purchased with coins] from the smaller [bags] until he deconsecrates them [i.e., transfers the status of second tithe in them to coins from] the large [bag]. [One who says,] "I have eight gold coins [in the status of second tithe] in a bag" and he went and found there (read with Lieberman: eight) gold dinars, lo, these are [in the status of] second [tithe]. [One who says,] "I have eight gold dinars in the bag," but he went and found eight gold coins [other than dinars]lo, these are unconsecrated. [One who says,] "I have eight gold coins in a bag," but he went and found fifty sela's or two hundred zuz, two hundred zuz or fifty sela's [that is, coins equivalent in value to eight gold dinars], and afterwards found eight gold dinar~ lo, these [gold dinars] are [in the status of] second [tithe]. T. 5:5 (p. 269, 11. 16-23) [One who says,] "I have eight gold dinars in a bag," but he went and found there fifty seta's or two hundred zuz, two hundred zuz or fifty sela's and afterwards found eight gold coinslo, these [gold coins] are [deemed to be] unconsecrated. T. 5:6 (p. 269, 1. 23p. 270, 1. 25) [One who says,] "Lo, there is a maneh [in the status if second tithe]," but he went and .found two hundred [zuz], [that is two maneh's worth] [= M. 4:12D-E]"Unconsecrated [coins and coins in the status of] second tithe are mixed together," the words of Rabbi, but sages say, "All [of the coins] are unconsecrated." [.lf he sqys there are] two hundred [zuz], but he .found [on[y] one maneh [= 4:12G-H]"[We assume] one maneh was left behind and one maneh was carried off," the words of Rabbi. But sages say, "All [of the coins] are unconsecrated." T. 5:7 (p. 270, 11. 25-27)

T. carries forward the concern of M. 4: 12 with coins which a farmer claims are in the status of second tithe but which do not match his description. This essay can be subdivided into four units: A-G, H-J, K-V and W-BB, each of which contains a number of conflicting opmwns. In A-E a farmer declares that consecrated coins are in a specific location. In contrast to M., A-E declares that if the coins are found

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in a different location, they are deemed nonetheless to be in the status of second tithe. A-E claims therefore that any coins which might be the subject of the farmer's statement are deemed to be consecrated. 33 F takes the opposing view, in line with M. 4:12. According to this view, the coins must be in the exact location which the farmer mentioned in order for them to be deemed in the status of second tithe. In H we find several batches of coins and do not know to which one the farmer referred. Two views follow concerning which batch is to be deemed consecrated. I claims that we assume that the largest batch is consecrated. According to ], however, we have no way of judging which batch of coins is consecrated. We therefore must go through the motions of transferring the status of second tithe from the smaller batches to the largest one. We choose the largest batch in order to consecrate the highest value of coins to which the farmer can be referring. The third unit (K-V) considers cases in which the farmer claims that his consecrated coins are of one type, but another type is found. In contrast to A-E, T. now holds that the coins must match the farmer's description in order to be deemed consecrated. In K -L the farmer specifies only that he has gold coins. Gold dinars which are found where he claimed are clearly to be considered since these are gold coins. On the other hand, M-N has him specify that the consecrated coins are gold dinars. Other gold coins, which are not dinars and thus do not match his description, are not deemed to be consecrated. The same point is made at 0-R and S-V, now with the coins in question mixed in with other coins. As in K -N, only the coins specifically described by the farmer are deemed to be consecrated. Finally, W-BB cite M. 4: 12. As we recall, M. ruled that if the farmer claimed the coins were of one value but a different value was found, the appropriate value of the found coins is deemed consecrated. Rabbi now provides a rationale for M.'s ruling (X-AA). In contrast, sages declare all of the coins to be unconsecrated. This is so because there

33 The view here is congruent to the view of M. 4:lOE-F (T. 5:1A-F) concerning inscriptions. There we saw that produce is deemed consecrated if its container bears even an ambiguous label. Likewise here the produce is to be considered consecrated even if there is doubt that the farmer's statement applies to the coins. The opposing view in F is then paralleled by that of sages in T. 5: I G-K. F claims that the statement is considered to be probative only if it clearly refers to found coins. Sages in T. 5: IG-K claim that a label is probative of the status of produce only if it clearly refers to a consecrated status.

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1s some doubt as to whether or not the farmer referred to these particular coins. 34 A. B. C. D.

E. F. G. H. 1.

[If) one was sick and could not talk (mfwtq), they say to him, "Where are your coins in the status of second tithe," and he shows them with his fingers thus and so (kk wkk) [or if they ask him,] "Are [your consecrated coins) in such and such a place," [and) he nods with his headthey question him three times. If he answers consistently ('! hn hn w'l l'w l'w), his directions [dbryw] have effect (qyymyn). T. 5:8 (p. 270, ll. 28-30) [If) one was wondering about the location of ()kn) [coins in the status of) second tithe [which belonged to his) father [and) a man came to him in a dream and said, "They are thus and so," or "They are in such and such a place,"it once occurred (zh fryh m'sn) that they found coins there [where a vision predicted) and they went to ask the sages [about the status of the coins]. The sages said, "Lo, they are unconsecrated, for the words of a vision make no difference." T. 5:9 (p. 270, ll. 30-33) (y. M.S. 4:9, b. San. 30a)

T. continues its discussion concerning the categorization of coins which someone claims are in a consecrated status. These two pericopae are formally related by their opening phrase hyh-participle and by their common theme. In each the description of the coins' location is accurate, but it is delivered in an unconventional way. In A-F the coins' owner cannot speak but directs someone to the coins by use of sign language. If his message is clearly understood, by being tested three times, the coins he refers to are deemed to be consecrated. G-I give us a case (G-H) followed by a precedent (I). Evidence supplied by a vision is not taken into consideration in matters of consecration since a vision has no recognized authority. A. One who says to his son, "Even if you are dying [of hunger), do not touch [any coins in] this corner," and they went and found there comsB. lo, these are unconsecrated. T. 5:10 (p. 270, ll. 33-34)

34 The reasoning here is similar to that of Yose in M. 4: 10-11. He holds there that if there is some doubt about an inscription, the produce it is associated with is deemed unconsecrated.

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The farmer declares that certain coins are not to be used for ordinary purposes, implying that they are in a consecrated status. Nonetheless, the coins are deemed to be unconsecrated because the owner has not explicidy stated otherwise. The reasoning here is similar to that of sages in T. 5:1G-K. A. [If] they [i.e., sons] saw their father hiding coins in a locker (sydh), a box or a chest, B. and he said, "They are so and so's," C. [or he said], "They are [in the status of] second tithe"D. if he [makes his statement lighdy] as if he was joking, E. his statement has no effect (l' 'mr klwm); F. if he [makes his statement with seriousness], as if he were intending to give testimony [in court], G. his statement has effect (dbryw qyymyn). T. 5:11 (p. 270, 11. 34-36) (b. San. 30a) H. [If one said to them, "I saw your father hiding coins in a locker, a box or a chest [and the coins are in the status of second tithe]," I. his statement has no effect [i.e., coins found in such a receptacle are deemed to be unconsecrated]. J. [If he says, "I saw your father hiding coins] in such and such a place, or in such and such a chest," K. his statement has effect [i.e., coins found there are deemed to be consecrated] . L. This is the general rule: M. Concerning] anything they can find [without his help]-(kl hmJ.wy lhm)-his statement has no effect. N. [Concerning] anything they cannot find [without his help]-his statement has effect. T. 5:12 (p. 270, 1. 36271, 1. 39) (b. San. 30a) 0. [If] a launderer says to him, "This cloak was your father's, but I bought it from him," P. he is believed (h'mn), Q for he who has the power to prohibit has the power to permit (hph f sr hw' hph sntyr). R. But if there were witnesses to the fact that it was his father's and he said, "I bought it from him," S. he is not believed. T. 5:13a (p. 271, 11. 39-41) (0-S: cf. M. Ket. 2:2)

On formal grounds we have four units: A-G, H-K, L-N and 0-S. A-G and H-K are linked at A and H and through the use of the

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standard formulas "his statement has effect/ no effect" at E, G and I, K. Although H-K and L-K do not explicidy mention second tithe, the context of this unit requires that this be the issue. The general rule at L-N is formally disjunctive with H-K, shifting the subject from the witness to the sons. 35 0-S is formally autonomous of the foregoing but makes the same point. The issue again is the validity of a statement for deciding whether or not an item is deemed to be in the status of second tithe. T. takes up an issue not considered in M., the trustworthiness of the speaker. A-G declare, first of all, that if there is any reason to doubt the sincerity of the speaker, his statement is disregarded. If part of a witness' testimony works to his own detriment, however, we assume the entire statement is reliable. In H-N, for example, someone describes the location of certain coins and claims that they are consecrated. If his description is detailed, and so allows us to find the coins, we accept as well his claim that the coins are consecrated. The assumption is that if he wished to prevent the use of the coins, he would not have disclosed their location. 36 In 0 the launderer himself tells us that the cloak once

35 The meaning of this rule is unclear because of the elliptical nature of the language. The parallel in B. San. 30a offers a different wording. There this rule reads as follows: [Concerning] what is accessible to him (kl soydw Mln)-his words have effect. [Concerning] what is not accessible to him-his words have no effect. This wording makes the same point as T.'s, but in a clearer way. If the witness wanted the coins for his own use, he could simply take them. By disclosing their location, he indicates that he has no ulterior motive. We thus believe him when he says they are consecrated. GRA proposes that we reverse the apodoses of the general rule so that it reads as follows: M. [Concerning) anything they can find [independently)-his statement has effect. N. [Concerning] anything they cannot verifY [independently]-his statement has no effect. This reading brings L-N into line with H-K. According to this reading, the point is that if the witness gives specific information, so that it is possible to check on his statement, we take his testimony seriously. On the other hand, if he gives only a general location, which we cannot verifY, we disregard his claim. Lieberman interprets the rule to mean that a single witness has the power to prohibit use of an object only if that object is not in the hands of its owner. That is, if the sons have access to the father's coins, the testimony of one witness that the coins are consecrated has no effect. Cf. TK, p. 782. 36 H-K in fact can be understood as an autonomous unit independent of L-N. Read in this way, the point is that a statement must refer to specific coins for those coins to be deemed consecrated. At H-1 the speaker does not name a specific location for the coins he claims are consecrated. As we saw in T. 5:5F, such a statement is of no

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belonged to someone else. Since he himself volunteered the information that the cloak was not originally his own, we can believe his claim that he bought it from the original owner.

value. The statement in J-K, on the other hand, is specific. Coins found in that location are deemed to be consecrated, in line with the ruling of M. 4: 12D-I. By appending the rule of L-N to this unit, the redactor clearly wants us to read this material as making the same point as 0-S.

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Having completed the discussion of produce in the status of second tithe, the tractate moves to a consideration of two categories of food which are in a status similar to that of second tithe. The first of these is fruit of a tree's fourth year of growth (M. 5: 1-5). Scripture (Lev. 19:23-25) assumes that such fruit is both holy and may be eaten by the farmer, a fact which permits M. to draw a pertinent analogy to second tithe (M. 5:3). The second category of produce is agricultural gifts of which the farmer has not properly disposed (M. 5:6-15). Such consecrated produce, which accumulates uneaten in the farmer's house, is like second tithe which, in the era after the destruction of the Temple, cannot be brought to Jerusalem and, therefore, also remains uneaten in the farmer's possession. With this larger structure of the chapter in mind, let us consider each of its parts in greater detail. The basic facts concerning produce of a tree's fourth year of growth (M. 5:1-5) come from Scripture. Lev. 19:23-25 declare that fruit growing on a tree "shall be forbidden to you (yhyh lkm 'r!Jim) for three years and is not to be eaten, but in the fourth year its fruit is holy, dedicated to the Lord." Scripture makes it clear in this passage, first of all, that produce of a planting's fourth year is consecrated. Furthermore, Scripture draws a contrast between produce of the tree's first three years, which is not eaten, and produce of the fourth year, for which this claim is not made. From this contrast, the Hillelites (M. 5:3) conclude that while fruit of the first three years is not eaten, that of the fourth is eaten. This being the case, they see an analogy between fruit of a tree's fourth year of growth and produce in the status of second tithe. Both of these are consecrated foods eaten by the farmer. On the basis of this analogy, they rule that in other respects produce of the fourth year is to be treated as is produce in the status of second tithe. If it cannot be eaten in Jerusalem, for example, it must be destroyed. Furthermore, the farmer who transfers the status of second tithe from his own produce to his own coins, in order to bring the coins to Jerusalem, must pay the added fifth. Finally, it may not be left for the poor, since it must be eaten by the farmer himself. In each of these cases, the Shammaites disagree. They hold that since Scripture does

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not specifY that produce of the fourth year is eaten, it is not analogous to second tithe at all. They rule, therefore, that fruit of the fourth year is never treated like second tithe. The Hillelite notion that there is an analogy between fruit of a tree's fourth year of growth and produce in the status of second tithe is assumed by the other pericopae in this unit. M. 5: 1-2 declare that fruit of the fourth year is used in the same way as is second tithe. That is, it is brought to Jerusalem for consumption or must be sold and money brought to the city to purchase other produce in its stead. M. 5:4-5 assume that fruit of the fourth year may be sold and go on to discuss the next logical question-how its selling price is established. In particular, what interests M. is how the price is set in unusual cases, such as when the produce is unharvested (M. 5:4) or when the produce has no owner (M. 5:5). This material is parallel to M. 4:1-S's discussion of how one establishes the selling price of second tithe. The second unit of the chapter (M. 5:6-15) turns our attention to agricultural gifts of which the farmer has not yet properly disposed. According to M. 5:6, the produce either must be given to its proper recipient or must be destroyed. The notion emerges from Deut. 26:12-15, which states, "When you finish separating all the tithes from your produce [in the] third year, the year of tithing, you shall give it to the Levite, the stranger and the orphan and the widow . . . then you shall declare before the Lord your God, 'I have removed [all] consecrated produce from my house .. .'" The problem for M.'s formulators is that Scripture here states that tithes are separated only every three years. This contradicts M.'s assertion that the farmer separates agricultural gifts annually. In order to overcome this contradiction, the formulators of the law read Scripture to mean that every three years the farmer must give to their appropriate recipients only those agricultural gifts which he previously separated but which still remain in his house. At this time, all heave-offering must go to the priests, first tithe must be given to the Levites, second tithe must be eaten in Jerusalem and poorroan's tithes must be given to the poor. M. 5:6 rules that with the Temple's destruction, when second tithe no longer could be eaten, such produce is removed from the farmer's domain by being destroyed. With the basic law of removal set forth in M. 5:6, the redactor turns to a consideration of two related themes: how the removal is carried out in special cases (M. 5:7-9) and the meaning of the confession the farmer recites in Jerusalem (Deut. 26:13ff., M. 5:10-14). In this later block of material, the text of the confession is the subject of a midrashic

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interpretation which stresses the importance of properly carrying out the tithing laws. The subunit closes with an appendix which refers to a series of legal enactments ascribed to the time ofYohanan, the High Priest (M. 5:15). This material is in the subunit because the first of these acts refers to the confession. M.'s discussion has already drawn to a natural close, however, atM. 5:14. 5:1 A. (1) [As regards] a vineyard in its fourth year [of growth]B. they mark it off with clods of earth. C. (2) And [a vineyard] in its first three years of growth ('rlh) [they mark it off] with clay. D. (3) And [an area] of graves [they mark off] with lime E. which they dissolve in water and pour out [along the boundary] (wmmf1h wfwpk). F. Said Rabban Simeon b. Gamaliel, "To what [case] does this apply? G. "During the Sabbatical year. H. "And those who are conscientious (hs.nw'ym) set aside coins and say, 'Let whatever is plucked [from this vineyard which is in its fourth year] be deconsecrated with these coins."' M. 5:1 (b. B.Q 69a; H: b. B.Q 68b)

The opening triplet provides a list of three areas which must be marked off as a precaution on behalf of unwitting passers-by. 1 Only the first two rules are concerned with food. A-B assumes that fruit produced by a vineyard in its fourth year of growth is consecrated and may be eaten only in Jerusalem (Lev. 19:23-25). The ruling therefore requires landowners to mark such fields so that strangers will not pick the produce and eat it as though it were unconsecrated. Grapes of a vine's first three years of growth, the subject of C, are altogether forbidden for use as food. 2 As at A-B, the owner of the vineyard must warn

1 TYY relates each of the devices used for marking the area with the type of prohibition it signals. Clods of earth support growth only when properly prepared. So too grapes of a vineyard's fourth year are edible when properly prepared, by being deconsecrated with coins. Clay will not support growth and thus is used to mark grapes of a vineyard's first three years, since such grapes are not to be used at all. Lime marks off a graveyard because it is symbolic of bones. 2 The notion that the fruit a tree bears during its first three years of maturity is forbidden is Scriptural. Lev. 19:23-24 state: "When you come into the land and plant any fruit trees you must consider forbidden (w'rltm 'rltw) its fruit; they shall be improper for you three years and are not to be eaten."

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passers-by of the status of the produce, lest they pick the grapes and eat them in violation of the law. D-E shift our attention to graveyards. These render unclean any priest who enters their bounds. 3 These areas must be marked off, therefore, so that priests will not unwittingly cross into such areas and be contaminated. Simeon b. Gamaliel's opinion (F-G) refers to the produce of A-C. His point, according to Maim., Bert., and TYY, is that normally we do not need to worry that passers-by will eat grapes from a vineyard without the owner's permission. This becomes a consideration only during the Sabbatical year, when the produce is legally ownerless. Now strangers may indeed feel free to help themselves to the growing fruit. It is during this year, then, that the farmer must mark off the grapes as being in a consecrated status. I presume that his rule is placed here, rather than after C, so as not to break up the triplet at A-C. H offers a second way of insuring that consecrated grapes are not picked and wrongfully eaten. The farmer sets aside coins for the express purpose of taking on the status of any consecrated grapes that are picked. 4 Grapes which a passerby picks therefore are immediately deconsecrated and may be eaten as ordinary produce. 5 The coins then must be used by the farmer in Jerusalem to purchase other produce to be eaten in place of the original grapes. Through this ruling, the pericope introduces, in an oblique manner, the topic of Chapter Five, produce grown during a vine's fourth year. T. Others say, (1) "(A tree bearing produce] dedicated [to the Temple] they mark with red dye. (2) "A place of idolatrous worship they blacken with charcoal. (3) "On a leprous house they throw wood ash. (4) "A place of execution they mark off with blood.

3 See Nu. 19:16. M. makes several allusions to the practice of regularly marking off grave areas. See, for example, M. Sheq. 1:1, M. M.Q 1:2. 4 M. thus assumes that even though the produce is deemed ownerless, the owner of the vineyard is responsible for bringing its fourth year crop to Jerusalem for consumption. The issue of whether or not the farmer is in fact the owner of this produce at all is taken up in M. 5:3. 5 The consecrated status of the grapes is transferred only after the grapes have been plucked. This is so because the produce itself only takes on the status of consecration when it is harvested; see M. 5:5. This is also the case with produce to be designated as second tithe (cf. M. 1:5).

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(5) "The place in which a calf's neck is broken [to make atonement for

an unsolved murder] they mark out with a circle of stones." T. 5:13b (p. 271, 11. 41-44) (y. M.S. 5:1)

The pericope supplements M. 5: lA-D's list of places which must be marked off to prevent individuals from using them improperly. In each case, the material used to designate the prohibited item is symbolic of the nature of the prohibition. Items dedicated to the Temple (l) may not be eaten by commoners, but must be handed over to Temple authorities. They are marked off with red dye, a reminder of the red line that divided the Temple altar into upper and lower portions (see M. Mid. l: 3). 6 Pagan shrines (2) are not to be entered by Israelites (M. A.Z. 3:7). They are marked off with ash to indicate that they are to be burnt to the ground (cf. T. A.Z. 4: 19). A house which is contaminated with leprosy-like spots (3) renders unclean whoever enters it (M. Neg. 13:4). Since such a house is to be reduced to dust (Lev. 14:45, see M. Neg. 12:7), it is covered with dust. A place of execution is marked off to prevent passers-by from coming into contact with a dead body and so being rendered unclean. The blood used to signifY this area symbolizes the nature of the uncleanness adhering to the site. 7 Atonement for an unsolved murder is made by breaking the neck of a young calf (Deut. 21: l-9). The site of the ceremony is set off by stones to indicate that the site may not be used for agriculture (Deut. 21:4). 8 The phrase "others say," which introduces the pericope is meaningless here, since the material it introduces is substantively independent of what proceeds. 5:2

A [Produce of] a vineyard in its fourth year [of growth] was brought (hyh