Tosefta 21¹

[A farmer] who sprinkles² his field [with water for the purpose of irrigation], to the point that the poor people will not enter it, [because it is too wet], is permitted [to do so], if the damage that is caused to him [by not sprinkling that much water] is greater than [the damage] caused to the poor people [by them not being able to collect the gifts to the poor from his field that day].³ But if the damage caused to the poor people [by them not being able to collect the gifts to the poor from his field that day] is greater than [the damage] caused to him, [then] it is forbidden⁴ [for the farmer to water his field to that extent.] Rebbi Yehuda says, either this way or that (i.e. does not matter whose damage is greater) [since the poor people cannot enter the field, the farmer] has to collect [the gifts to the poor from his field himself] and put them on top of the fence⁵ [around the field], and the poor person will come and will take what is [rightfully] his.⁶

מסכת פאה פרק ב

תוספתא כא

הַמְּרַבֵּץ אֶת שָׂדֵהוּ עד שֶׁלֹּא יִכָּנְסוּ עֲנִיִּים לְתוֹכוֹ, אִם הָיָה הֶזֵּיקוֹ מְרוּבֶּה עַל שֶׁל עֲנִיִּים מוּתָּר, וְאִם הֶיזֵּק הַעֲנִיִּים מְרוּבֶּה עַל שֶׁלּוֹ אָסוּר. רבי יְהוּדָה אוֹמר בֵּין כָּךְ וּבֵין כָּךְ מְלַקֵּט וּמֵנִיח עַל גַּבֵּי גָדֵר וְהֶעָנִי בָּא וְנוֹטֵל אֶת שֶׁלּוֹ.

Notes:

1. Since the previous Tosefta mentioned irrigated fields, this Tosefta states a new law regarding irrigated fields and gifts to the poor. It seems to me that this Tosefta is not commenting directly on any particular Mishna. In Talmud Yerushalmi (Peah 5:3, Daf 26b) this Tosefta is quoted on a Mishna (Peah 5:3) that discusses the argument between Rebbi Meir and the Chachamim (Sages) regarding the permissibility of the watering the field with an irrigation device called in Hebrew, טופיח (Tofeach), which is known in English as a Persian water-wheel. The name Tofeach is referring a clay pitcher, or a set of pitchers, which is attached to the rope pulled by the wheel, which is automatically refilled with water from a water source over which the wheel spins.

Persian water-wheel, used for irrigation in Nubia. Lithograph by Louis Haghe from a painting by David Roberts from 1838 in Egypt. Notice that the wheel itself is spun by oxen.

The Yerushalmi connects this Tosefta with that Mishna, because the reasoning behind the Mishna’s argument seems to be that the water wheel puts so much water on the field that it prevents the poor people from entering to collect the gifts to the poor. The comparison between the rulings of the Mishna and the Tosefta is logical, however it does not seem to that this Tosefta was written as a direct comment on that Mishna, but rather as a separated, unrelated statement, which is why they look completely dissimilar in the way that they are phrased.

2. In the Erfurt manuscript the word הַמְּרַבֵּץ (Hamerabetz) is spelled הַמַרְבִּיץ (Hamarbitz). According to Marcus Jastrow both spellings are correct and may reflect different pronunciations due to variations in the spoken Hebrew dialect at the time of the Tosefta, which is what implied from different sources throughout the Talmudic literature where this word appears. Regardless of the spelling and pronunciation the meaning of this word remains the same, which is “irrigation by sprinkling” or just “sprinkling”, as opposed to the word השקה (Hashaka), which literally means “contact”, but more specifically “making water in one vessel connect with the water in another vessel by direct contact of the water contained in both vessels”. The key subtlety being that during sprinkling a droplet of water flies through the air before it lands and therefore there is no direct contact between water in the vessel from which it is sprinkled and the water in the vessel into which the droplet lands. See Marcus Jastrow, “Dictionary of the Targumim, Talmud Bavli, Yerushalmi and Midrashic Literature”, 2nd Edition, 1926, p. 1445, entry רבץ.

3. The Tosefta does not explain how such damage can be assessed, which would seem to be an almost impossible job.

4. The Tosefta states that the farmer is forbidden from watering his field that much, but it implies that if he violated the law and did it anyway, he would not need to compensate the poor for the produce which they could not collect, as implied from the following statement of Rebbi Yehuda.

5. It does not literally mean that the farmer has to put the produce on top of the fence. But rather he has to put it in a way that it is accessible without entering inside the field.

]]> http://www.toseftaonline.org/blog/?feed=rss2&p=475 0 http://www.toseftaonline.org/blog/?p=475 http://feedproxy.google.com/~r/TheToseftaBlog/~3/QJhUVtzUV6Q/ http://www.toseftaonline.org/blog/?p=462#comments Sun, 22 Aug 2010 23:39:12 +0000 Eli http://www.toseftaonline.org/blog/?p=462 Tractate Peah, Chapter 2

Tosefta 20¹

From when can we burn stubble² [that is left] in the fields [after the harvest, and it is not considered stealing from the poor]?³ In an orchard⁴ [the poor can collect stubble] until [the holiday of] Shavuot⁵ [and then it is permitted to burn it]. In a grass field⁶ [the poor can collect stubble] until [the holiday of] Rosh Hashanah⁷ [and then it is permitted to burn it].⁸ [And] in a field dependent on irrigation,⁹ [the stubble can be burned] right away. [These are] the words of Rebbi Yehuda. And the Chachamim (Sages) say, “In a grass field [the poor can collect stubble] until [the holiday of] Shavuot¹⁰ [and then it is permitted to burn it]. In an orchard [the poor can collect stubble] until [the holiday of] Rosh Hashanah [and then it is permitted to burn it], because of theft from people and animals.¹¹ [And] in a field dependent on irrigation, [the stubble can be burned] right away.”¹²

מסכת פאה פרק ב

תוספתא כ

מֵאֵימָתַי שׂוֹרְפִין קָשִׁין שֶׁבַּשָּׂדוֹת? בשדה אילן עד עצרת, בשדה לבן עד ראש השנה, בִּשְׂדֵה בֵּית הַשְּׁלָחִין מִיָּד, דִּבְרֵי רבי יְהוּדָה. וַחֲכָמִים אוֹמרים בְּשָׂדֶה לָבָן עַד הַעֲצֶרֶת, בִּשְׂדֵה אִילָן עַד רֹאשׁ הַשָּׁנָה מִפְּנֵי גֶזֶל אָדָם וּבְהֵמָה, בִּשְׂדֵה בֵּית הַשְּׁלָחִין מִיָּד.

Notes:

1. The Tosefta states a new law regarding the cutoff dates of when the planting of the fields for the following year takes priority over the access of the poor to the crops of the previous year. This Tosefta is not related to any Mishna.

It should be noted that there is a lot of controversy among the commentators about how to interpret this Tosefta due to its obscure language. Some, like the Gra (Vilna Gaon), have chosen to significantly alter the wording of the Tosefta based on logic without any manuscript reference. Others, like Chasdei David, have stated that this Tosefta is completely out of place and it is really talking about burning of stubble during Shmitta (Sabbatical Year) and not during a regular year.  As will be seen from my interpretation of this Tosefta, I have shown that in fact it is talking about gifts to the poor and fits very well into the context of this chapter. Textual emendations based on logic are not necessary to put this Tosefta in its proper context as long as it is understood against the background of agricultural practices of the ancient Land of Israel.

2. Stubble is dried-up stalks, mainly of grain, left standing in the fields. Sometimes it is used by camels to supplement their regular meals, but mostly it is used as fuel for burning something. It cannot be used as food for regular domestic animals, because it is too hard. The Hebrew word for stubble is קש, as opposed to straw, which is תבן. Stubble should not be confused with straw since straw is stalks that have been cut into small pieces by the threshing process and is used as roughage for domestic animals. See The International Standard Bible Encyclopedia 1915 (entry Straw, Stubble).

Stubble gets naturally left in the fields since only the top part of the stalks gets harvested. The bottom portion of the stalk remains attached to the ground and becomes stubble.

Stubble left in the field after harvest. Photo: H. J. Sydow.

There are a few reasons why the owners of the field would want to burn stubble and not just let it wither away over the winter or simply plow it under. Stubble is considered to be residue of the previous harvest and it impedes seeding operations during the planting of the next year’s crop. Also, if the stubble is not removed it aids in the growth of weeds causing damage to the new crop. See William Schillinger, “Direct Seeding into Heavy Irrigated Stubble Instead of Burning Proposal”, Washington State Department of Ecology, 2003, http://www.ecy.wa.gov/programs/air/aginfo/research_pdf_files/schillingerproposal.pdf, accessed on August 18, 2010. Also, some research have shown that stubble that is just plowed under and not burned causes disease in the new crops. See Roy Dell Wilcoxson, Eugene Eino Saari, Barbara Ballantyne, “Bunt and smut diseases of wheat: concepts and methods of disease management”, CIMMYT, 1996, p. 56. Although, nowadays farmers look for alternative methods to burning stubble mainly, because the smoke from the fires causes a lot of pollution, stubble burning has been a traditional method of getting rid of stubble for thousands of years.

Indian farmers burning rice stubble after the harvest in November 2003. Photo: USDA.

3. Since stubble is only fit to be burned, the poor would collect it from the fields in order to use it as fuel in their homes. Although stubble does not fall into any official category of gifts for the poor based on Torah law, it appears from this Tosefta that it was something that was considered to be of value to the poor and was officially left for them to collect up to the time of the planting process for the following year. The Rabbis were very careful in making sure that the poor get their fuel and forbade the owners of the fields from getting rid of it too early. Hence this law is of rabbinic origin.

4. You may wonder why there would be stubble in an orchard since only trees grow there and not grass. The answer to this question is that cover crops are necessary to be planted in between the rows of trees in order to keep the fertility of the soil and reduce soil erosion. This even remains a common practice today. For examples of how and which cover crops are used in olive orchards see Paul M. Vossen, “Organic Olive Production Manual”, ANR Publications, 2007, pp. 41-43.

A vineyard in Sonoma County, California with cover crops planted in between rows of grapevines. Photo: Lore Sjoberg.

5. Shavuot occurs in the beginning of the summer, exactly 7 weeks after Pesach, and signifies the beginning of the fruit harvest, as was celebrated during the Temple times by the ceremony of the bringing of the Bikkurim (First Fruits) to the Bet Hamikdash (Temple). See Devarim 26:1-11.

The reason Rebbi Yehuda holds that the owner may begin burning the stubble of the cover crops starting on Shavuot is because Shavuot was the end of the harvesting season of the cover crops themselves, which usually were either some kind of grain or legumes. The cover crops are either cultivated and harvested for the sake of the crop itself or mowed and then dumped around the trees as fertilizer to prevent growth of weeds. See Paul M. Vossen, “Organic Olive Production Manual”, ANR Publications, 2007, p. 42. Even though the harvest of the fruit in the orchard just began, since the harvest of the cover crops was over, Rebbi Yehuda permitted burning of the stubble that remained after the cover crops were mowed.

6. Literally: white field. Since grass fields did not have any trees that would create shadows they were called “white fields” referring to their brightness in the sun and them being shadelessness. See Marcus Jastrow, “Dictionary of the Targumim, Talmud Bavli, Yerushalmi and Midrashic Literature”, 2nd Edition, 1926, p. 690, entry לָבָן II.

7. Rosh Hashanah occurs in the beginning of the fall, on the first of the month of Tishrei, towards the end of the fruit harvesting season. See Vayikra 23:24 and Bemidbar 29:1. However, it does not signify the end of the fruit harvest. The end of the fruit harvest is celebrated during the holiday of Sukkot, as explicitly stated in the Torah (Vayikra 23:39), which begins on the 15th of Tishrei, two weeks after Rosh Hashanah. It is not clear why Rebbi Yehuda chose Rosh Hashanah and not Sukkot as the cutoff date for burning the stubble. I would like to suggest that since the rainy season in the Land of Israel officially began on the 15th of Tishrei (see Talmud Bavli Taanit 2b), on the first day of Sukkot, Rebbi Yehuda wanted to give two weeks to the owners of the fields to be able to burn their stubble while the weather was still nice. It should be noted that during most years Sukkot falls out during the end of September or the beginning of October, which is when the rain just begins to fall. For the description of Israel’s rainy season see Efraim Orni, Elisha Efrat, “Geography of Israel”, JPS, 1973, pp. 146-147.

A more difficult question to answer is why Rebbi Yehuda chose to prohibit burning of the stubble until the end of the fruit harvesting season and not just until the end of the grain and legumes harvesting season which occurs on Shavuot. It seems to me that since grain fields were the main source of stubble, which was an important source of fuel, Rebbi Yehuda wanted to leave ample time for the poor to collect it. Since it was not critical for the owner to burn the stubble immediately after the grain harvest, because the planting of next year’s crops does not begin until the fall, Rebbi Yehuda felt that it was proper to leave the stubble for the poor at a minor inconvenience for the land owner.

8. I have chosen the reading of the statement of Rebbi Yehuda from the Erfurt manuscript, since it makes sense agriculturally. In the Vienna manuscript the reading is as follows:

בְּשָׂדֶה לָבָן עַד הַפֶּסַח בִּשְׂדֵה אִילָן עַד רֹאשׁ הַשָּׁנָה מִפְּנֵי גֶזֶל אָדָם וּבְהֵמָה

In a grass field [the poor can collect stubble] until [the holiday of] Pesach [and then it is permitted to burn it]. In an orchard [the poor can collect stubble] until [the holiday of] Rosh Hashanah, because of theft from people and animals, [and then it is permitted to burn it].

Besides the fact that this reading does not flow with the statement of the Chachamim in terms of the order of the fields and the fact that he is not arguing on them regarding the orchard, it also does not make any sense agriculturally. In the Land of Israel the grain harvest would begin on the 2nd day of Pesach with the Omer sacrifice and would conclude on the holiday of Shavuot. This grain harvesting season is emphasized in the Torah. See Vayikra 23:10-22. It would not make any sense to begin burning the stubble on Pesach since that is when the harvest just started. The farmers could only start burning the stubble after Shavuot when the grain harvest was over and they could begin planting the crops for the following year.

9. In ancient Israel most farmers relied on rain. They did not have the means to irrigate their fields by bringing water from some kind of a reservoir. The few exceptions to this were fields on the shores of Lake Kinneret (Sea of Galilee) and on the banks of the River Jordan where the farmers were able to divert the water into a canal that passed through the field. In rare cases the fields were irrigated from a water reservoir where rain water was collected. A field that needed irrigation besides regular rainfall was considered to be a lot more sensitive and doing anything to prevent irrigation of that field would pose high risk to the success of the crops. Therefore the Rabbis allowed the owner to burn the stubble immediately so that he can begin the irrigation of the field for next year’s crops.

Vineyard on the Carmey Avdat farm in the Negev desert, Israel irrigated by flash floods using ancient Nabatean methods from the Talmudic era. Photo: carmey-avdat.co.il

10. The Chachamim are of the opinion that the farmer is allowed to burn the stubble as soon as the harvesting season is over, regardless if he is going to start planting next year’s crops right away or not. In a grass field, where the produce is either grain or legumes, the harvest is over on Shavuot and therefore he can burn the stubble right after Shavuot. This allows the owner to start working on preparing the field for next year’s crop immediately after the harvest is over.

11. The Chachamim explain their opinion regarding orchards, because it is inconsistent with their logic in their previous opinion. Since they hold that the owner is allowed to burn stubble as soon as the harvest of the crop is over they should agree to Rebbi Yehuda that since the cover crops in an orchard are harvested until Shavuot the owner should be allowed to burn stubble from Shavuot on. However, the Chachamim disagreed with Rebbi Yehuda in this particular case, because they felt it would be a waste of stubble at that point in time since the farmer did not need to plant next year’s cover crops until he harvested the whole orchard. This is what they meant by saying that it would be “theft from animals and people”. Since the stubble could be used by people for fuel and animals, such as camels, for food, it would be a waste to burn it early. Since the fruit harvest ended on Sukkot, the Chachamim really should have only allowed burning the stubble after Sukkot. The reason that they allowed it from Rosh Hashanah was so that the farmer would have enough time to burn his stubble before the rains began, as I already explained in note 7.

Tosefta 19¹

[If] poor people were going around [and collecting charity] among the silos,² [then first] they (i.e. owners of the silos) should take off Maaserot (tithes)³ [from the food that is piled in the silos]⁴ and [then] they should give them (i.e. poor people) [some of that food as charity].⁵ However, tartuffes⁶ would put in their (i.e. poor people’s) hands money [instead of food], and eatable things, but they would [only] give him (i.e. poor person) a small amount [of food from the food that was not yet piled in silos] in order that he would finish eating it before he reaches the city [thus making it exempt from Maaserot].⁷ And all other gifts to the poor that [remain lying] in the field [after the poor people have finished collecting them] that the poor person does not care about belong to the owner [and other people are not allowed to take them].⁸

מסכת פאה פרק ב

תוספתא יט

עֲנִיִּים הַמְחַזְּרִין בֵּין הַגְּרָנוֹת מְעַשְּׂרִין ונותנין לָהֶם. והַצְּנוּעִין מוֹצִיאִין בְּיָדָן מָעוֹת ודְבָרִים הַנֶּאֱכָלִין וְנוֹתְנִין לוֹ דָּבָר מוּעָט כְּדֵי שֶׁיֹּאכְלֶנּוּ עַד שֶׁלֹּא יַגִּיע לָעִיר. וּשְׁאָר כָּל מַתְּנוֹת עֲנִיִּים שֶׁבַּשָּׂדוֹת שֶׁאֵין הֶעָנִי מַקְפִּיד עֲלֵיהֶן הֲרֵי אֵילּוּ שֶׁל בַּעַל הַבַּיִת

Notes:

1. The Tosefta states a new law about food given as charity from which the owner is required to separate Maaserot before giving it to the poor. It is not related to any Mishna.

2. The Tosefta discusses a case where the poor people have gone to collect food directly from the private storage silos and not from the gifts to the poor that were left in the field. Obviously, this was a more lucrative opportunity to get charity, because each donation was much easier to obtain since it did not require collecting one stalk at a time as in the case of Leket (fallen stalks) and it was probably less involved since the poor person did not have to fight with other poor people over the remaining crops, but rather he could ask the owner to just give him some crops in a civilized manner.

3. For a detailed description of what tithes are see above Tosefta Peah 1:6, note 7.

4. Once the produce has been brought into silos it was obligated in all tithes and could not be eaten by anyone until all of the tithes were removed. See Mishna Maaserot 1:5.

5. The reason that the owner could not simply give the food to the poor without taking off the tithes first is because most of the poor did not understand the difference between the official gifts to the poor, such as Leket, Shikcha (forgotten sheaves) and Peah (corners of the field), and all other charity. The official gifts to the poor are exempt from Maaserot. See Mishna Chala 1:3. However any other food given to the poor is obligated in Maaserot. The poor thought that this food given to them as regular charity is also exempt from tithes, and therefore the owner was not allowed to give them untithed produce, because that would cause them to violate the Torah prohibition of eating Tevel (untithed produce). Therefore the owner had to first separate all of the tithes and only then give from this food to the poor.

6. It is generally assumed that the word צְּנוּעִין (Tznuin, singular: Tzanua) means “pious people”, who are scrupulous in performing commandments. However, I would like to demonstrate that this is not the meaning of this term, at least not in this case. The term used in Talmudic literature to refer to truly pious people is חסידים (Chasidim). See Mishna Berachot 5:1, Sukkah 5:2, Chagigah 2:7, Sotah 9:16, Keritut 6:3, and Tosefta Bava Kama 2:6, Sukkah 4:2, Keritut 4:2. Tznuin, on the other hand, is a term used for people who believe that they are pious, but in reality their actions only cause problems in society. They are religious hypocrites. I have chosen to translate the word Tznuin as “tartuffes”. Tartuffe is a person who is a hypocritical pretender to piety, appearing truly pious on the outside, but in reality being sanctimonious and self-righteous. This translation especially fits well in this case, because it comes from the exact same root as the original Hebrew word. The word צנוע (Tzanua) comes from the verb להצניע (Lehatznia), which means “to hide” or “to conceal”. The English word “tartuffe” comes from the name of the main character in Tartuffe, a 17th century play by Molière, where the protagonist is a religious hypocrite. This name comes from an Old French word “tartuffe”, meaning “truffle,” chosen for suggestion of concealment.

The word Tznuin, referring to a group of particular individuals, appears in Talmudic literature in a few cases, all of which share the same theme in common. The cases discuss a group of people who go out of their way to perform what seems on the surface to be a Mitzvah (good deed), but in reality causes some kind of harm to society. For example, in Tosefta Yoma 2:7 there is a story where Rebbi Yochanan Ben Nuri tells over how he once met an old person who was a member of the Bet Avtinas, a family of Kohanim (priests) who were looked down upon by the Rabbis for refusing to share with the public their secret formula for preparing the Ketoret (incense) in the Bet Hamikdash (Temple). See Mishna Yoma 3:11. The old person told him that in his father’s house there used to gather Tznuin and share with each other scrolls with the secret recipes of the Ketoret, implying that they would only pass it on between themselves, but would not share the information with anyone else. Ashamed of their behavior and full of remorse, the old man gave Rebbi Yochanan Ben Nuri his scroll with the recipe of the spices for the Ketoret and asked him to carefully keep it, implying that it is the only copy left. It is obvious that the Tosefta uses the title Tznuin in a pejorative fashion, since the members of Bet Avtinas were not held in high esteem by the Rabbis due to their behavior. Obviously the Tosefta uses this term to describe these people is because they were trying to hide something from everyone else, thinking that they are performing a great deed by carefully preserving an ancient tradition of how to prepare the Ketoret.

Another example of such usage of the word Tznuin is Mishna Kilayim 9:5 and Kilayim 9:6. Both Mishnayot discuss cases which involve clothing that are made out of Shatnez, a mixture of wool and linen, which is forbidden to be worn by the Torah. See Vayikra 19:19 and Devarim 22:11. It is clear from the verses in the Torah that Shatnez is only forbidden to be worn as a garment, but it is permitted to make and sell such garment to a Non-Jew or even a Jew who has some kind of use for it besides wearing it himself. Mishna Kilayim 9:5 states that sellers of clothing made out of Shatnez are allowed to wear the clothing that they are selling in order to properly display them to customers. Such usage of the clothes is not considered to be an act of wearing a garment, as long as the seller does not intend to actually protect himself from heat or cold while he is displaying it on his body. However the Tznuin would not display the clothes that they were selling by putting them on, but would rather hang them up on a stick. The Mishna says that the normal way of selling clothes in its day would be for the seller to wear the clothes and the way the Tznuin were selling it on a stick or on a rack was unusual. The second case, in Mishna Kilayim 9:6 is where tailors who are making Shatnez clothing keep holding it in their lap while they are sewing it. The Mishna says that that is permitted as long as the tailor does not intend to protect himself from cold or heat by holding the garment in his lap. However, the Tznuin would instead keep the garment on the ground while they sewed it and would not hold it in their lap. It seems to me that in both of these cases the Tznuin by their behavior were doing a disfavor to their customers. In the case of the sellers they were misadvertising their merchandise because they were not selling it in the normal way to which the people were used to and therefore either causing themselves a financial loss due to less buyers or causing the customer to buy something that they were not sure would fit them properly or if they truly like it or not. In the case of tailors the Tznuin would dirty up the clothes that they were sewing by putting it on the ground thus eventually degrading its quality. So in both of these cases acts of superficial piety were causing damage to society. I have to admit that my explanation of these two Mishnayot is novel and may even be somewhat forced. It is not used by the Rishonim (medieval authorities) all of whom explain the Tznuin to be more pious, more stringent people than the rest of the masses.

There is one other occurrence of the word Tznuin referring to a particular group of people in which it really seems that the word is meant to mean truly pious people. See Mishna Maaser Sheni 5:1. However I do not think that it is really in contradiction to this Tosefta. It is possible that the word was used both in a straight and in a sarcastic manner depending on the context.

It should be noted that Saul Lieberman in Tosefta Kifshuta explains that the whole issue with the Tznuin had nothing to do with the tithes, but had rather to do with their preferences regarding Tumah and Tahara (ritual purity). I do not see how his explanation fits in the context of the subject being discussed.

7. As long as the owner of the produce intends to sell the produce and not eat it himself, the produce that is piled in silos becomes obligated in all tithes once piled and nothing after that would be able to exempt it from the tithes. Therefore it does not make any sense that the Tznuin who presumably were farmers who intended to sell their produce would give the poor food that was already piled in the silos since they would be required to separate the tithes from it. Therefore it seems to me that the Tznuin would give them food that was still not piled in silos, but perhaps was still sitting outside next to the silos in baskets or some other vessels in which it was transported from the field. Since they would give the poor only a small amount which was only enough to eat on the way back to the city the poor were exempt from taking off the tithes from it, because produce that is given as a gift to someone else and is being transported from somewhere to the person’s who received it house is exempt from Maaserot and the person transporting it is allowed to eat it untithed. See Mishna Maaserot 1:5 and 2:2. He only has to take off Maaserot once he enters his house with the produce. Since the amount of food given was going to be eaten before the poor returned home back in the city they could eat it without taking off the tithes.

8. The Tosefta summarizes what happens to all produce originally left in the fields for the poor as a part of Leket, Shikcha, Peah and Olelot (incompletely formed grape clusters), but was not collected by them. It was already mentioned on a few occasions that all gifts to the poor except for Peah automatically belong to the poor regardless if the owner designates them as such or not, and even Peah technically belongs to the poor as soon as it was left in the field, just they cannot take it until the owner explicitly proclaims it to be Peah. See above Tosefta Peah 1:13, note 7, and 2:6, note 4. Therefore we might think that if the poor chose not to take them they would become Hefker (ownerless) and as a result anyone can take them. Therefore the Tosefta teaches us that the gifts not collected by the poor do not become Hefker, but rather revert back to the owner of the field. This seems to me is the true meaning of the Tosefta as I will explain below.

However, this law poses a general difficulty. Mishna Peah 8:1 explicitly states that after the poor people leave the fields all gifts to the poor that they have left behind them become Hefker and can be taken by anyone. The reason for this law is explained in Talmud Bavli (Bava Metzia 21b) that since the poor gave up on collecting whatever they left in the fields it becomes Hefker just like a lost or a stolen object becomes Hefker after the owner gave up on receiving it back. Our Tosefta seems to be in direct contradiction to the law stated in the Mishna. Talmud Yerushalmi (Peah 8:1, Daf 35a) resolves this contradiction by explaining that what the Tosefta means is that really whatever the poor people do not collect becomes Hefker and can be taken by anyone, but if it is not taken by anyone the owner is allowed to take it for himself and he does not have to leave it for the animals. The reason that this is not obvious is because since the owner originally had to declare Peah as something that belongs to the poor and not to him we might think that once it becomes the property of the poor the owner can never take it back, and therefore the Tosefta teaches us that indeed he is allowed to take it back.

I would like to suggest that the Yerushalmi’s explanation deviates from the original intent of the author of the Tosefta and is only given in order to resolve the apparent contradiction between the Mishna and the Tosefta as was an accepted way of resolving contradictions in an Oral Tradition. The Yerushalmi’s logic is also problematic, because once an object becomes Hefker anyone can claim it including the original owner. The history of ownership of this object does not make any difference to this, and therefore the fact that the owner of the field once upon a time declared Peah to belong to the poor would in no way impact his ability to claim it for himself now.

It seems to me that the Tosefta clearly argues on the Mishna and holds that all of the gifts not taken by the poor do not become Hefker and instead revert to the owner of the field. I would like to suggest that the reason for the Tosefta’s law is a special Rabbinical decree that was enacted in order to protect the owners of the fields in difficult financial conditions. I already explained earlier, in Tosefta Peah 2:17, note 4, that the financial situation of the farmers during the time of the Tosefta was much more difficult than that of the time of the Mishna. And therefore it would make sense that the Rabbis have enacted this law as a special protection for the owner who himself might be very poor barely making ends meet. So in order to protect him they decreed that whatever produce was left by the poor belongs to the owner and cannot be collected by anyone else. However, the Mishna states the default law that was in effect before this special decree of the Tosefta where by pure logic all produce left by the poor became Hefker. For some reason, the enactment of the Tosefta did not take wide effect and by the time the law was again discussed in Talmud Yerushalmi the Yerushalmi simply assumed the original ruling of the Mishna as the effective law and reinterpreted the Tosefta in a way that would not conflict with the Mishna.

I would like to mention that there is an alternative way of resolving the contradiction between the Mishna and the Tosefta besides what is mentioned in the Yerushalmi and my suggestion. The Rambam in Mishneh Torah (Hilchot Matnot Aniyim 1:11 and 1:13) resolves it by stating that the Tosefta is talking about a case where the poor people still did not leave the fields, as the case of the Mishna, but they simply decided that a particular part of the crops left in the field as the gifts to the poor does not interest them. At that point those crops that the poor do not want to take revert to the owner, since nothing at that point becomes Hefker yet. However, after the poor have finished collecting their gifts whatever is left in the field becomes Hefker and anyone can take it, as the Mishna says. The Radvaz, in his commentary on the Mishneh Torah (ibid.) clarifies how this case would take place in practice. How is the owner supposed to know that the poor are not interested in particular crops? May be the next group of poor people that will show up in his field later will be interested in them? The Radvaz resolves this problem by explaining this law that once the first group of the poor have said to the owner that they are not interested in this particular set of crops that was left for them as a gift the owner may immediately take it for himself and he does not have to wait to see if the next group of poor people who come will be interested in it or not. Although this explanation resolves well the contradiction I do not think that it was the original intent of the author of the Tosefta, because something that is so not obvious should have been stated explicitly.

Tosefta 18¹

[If] the owner [of the field]² gave a container³ [with produce]⁴ to a poor person [in order that the poor person will go] to fill it up with water⁵ for him (i.e. the owner) [and in return for this favor the poor person gets to keep the produce that was in the container], [then this produce] is not [assumed to be taken by the owner from the produce that was already left in the field to be] Leket (fallen stalks), Shikcha (forgotten sheaves) and Peah (corners of the field), [and therefore] it is obligated in Maaserot (tithes).⁶

מסכת פאה פרק ב

תוספתא יח

בַּעַל הַבַּיִת שֶׁנָּתַן כְּלִיבָה לֶעָנִי לְמַלּוֹת לוֹ מַיִם אֵין בּוֹ מִשּׁוּם לֶקֶט שִׁכְחָה וּפֵיאָה וְחַיָּיב בַּמַּעַשְׂרוֹת

Notes:

1. The Tosefta states a new law regarding gifts to the poor. It is not related to any Mishna.

2. Literally: the owner of the house.

3. The word כְּלִיבָה (Kliva), “box” or “container”, is an original Hebrew word which is a feminine form of the word כלוב (Kluv), meaning “cage” or “coop”. It seems that both of these words come from the root כלב (Kalav), which means “to stitch” or “twist together”. The reason that both of these words come from this root is because in ancient times most cages or containers were made by stitching or weaving branches together, usually reeds, into basket like containers. If the vessel had to be made waterproof, as in our case, then it would be covered with pitch or tree resin. It is also possible to weave a basket so tightly that it will be waterproof without a pitch or resin coating. There are variant spellings of the word Kliva, such as כליבא (Kliva) and כליכא (Klicha), however it seems to me that the spelling from the Vienna manuscript which I have quoted in the main text is the most correct spelling since it properly reflects the Hebrew origin of the word by having the letter ה (Heh) in the end and reflecting the root from which it comes from.

Water Basket from the 19th century made by Paiute Indians from Oregon. Oregon Historical Society Museum. Catalog Number: OHS Mus 73-126.9. Similar baskets were probably made in ancient Middle East as well.

4. It is obvious that the container has to have some produce in it which the owner gave the poor person as a gift in return for fetching him water, because if the container would be empty then the whole Tosefta would not make any sense. However, see below in the middle of note 5 where I propose a different explanation according to the Erfurt manuscript reading where the container would be indeed empty.

5. In the Erfurt manuscript the word “water” is missing. Due to this reading Cheshek Shlomo explains the Tosefta in a different fashion. He says that the owner gave the poor person a basket of produce as a gift, not as a reward for doing him a favor of fetching water, but rather because he felt bad for him that that particular poor person did not get to collect as much of the produce left as Leket, Shikcha and Peah, as other poor people did that day. According to this explanation the Tosefta is teaching us that even though the owner intended to give this produce to the poor person as a part of the official gifts to the poor that he was not able to collect himself it is still not considered to be a gift to the poor, which is exempt from tithes, but rather regular produce, which is obligated in tithes. The reason that this produce is not considered to be a gift to the poor is because all gifts to the poor have to be left in the field by the farmer to be collected by the poor themselves and not proactively collected by him and given to the poor, as I already explained earlier on a few occasions. This concept is implied in the Torah (see Vayikra 19:9 and 23:22) where the Torah uses the expression תַּעֲזֹב אֹתָם (Taazov Otam), “leave them”, meaning that the gifts to the poor should be left in the field for the poor to collect themselves. See above Tosefta Peah 2:13, note 12. However, Cheshek Shlomo’s explanation still has a linguistic problem, because if it is not talking about water, but rather simply a basket of produce, it would be much better to skip the words “to fill it up for him”, because it implies that the poor person had to go and fill up the basket with something for the owner.

I would like to propose another explanation according to the Erfurt manuscript reading which skips the word “water” that would resolve this linguistic problem. The phrase לְמַלּוֹת לוֹ (Lemalot lo) could also be translated as “to fill it up for himself”, meaning for the poor person, and not “for him” meaning the owner. Then the case is that the owner gave the poor person an empty basket and told him that he is allowed to go into the field and fill up the basket from the regular crops, which belong to the owner, since there were no official Leket, Shikcha and Peah crops left in the field, because all of them were already taken by other poor people. Since these crops are regular crops that belong to the owner this particular present that the owner gave him is considered to be regular produce and is therefore obligated in tithes.

According to the reading of the Vienna manuscript which has the word “water” in it the Tosefta’s point would be different. The Tosefta is teaching us that we do not suspect the owner to have taken this produce from produce which was already designated in the field as Leket, Shikcha, or Peah and belongs to the poor people, but rather the owner took it from his personal produce and therefore the poor person is obligated to separate tithes from it as from any regular produce. Another possible interpretation would be that since in this case the owner literally made a gift to the poor person as a thanks for fetching him water, the poor person might think that this gift qualifies to be an official “gift to the poor”, such as Leket, Shikcha or Peah, and therefore the Tosefta has to teach us that it is not so. Since both explanations are plausible I have decided to keep the word “water” in the main text as it appears in the Vienna manuscript.

6. As was already explained many times, all gifts to the poor are exempt from all tithes. See Mishna Chala 1:3. Since this produce is not considered to be in the special category of “gifts to the poor” the poor person would have to separate all tithes from it. For an explanation of what the different tithes are see above Tosefta Peah 1:6, note 7.

Tosefta 17¹

[Grain seeds that were brought in by the ants² inside] ant holes³ are forbidden [to be taken by the poor people as Leket (fallen stalks)] due to [the prohibition of] theft [from the owner].⁴ But if the owner proclaimed them (i.e. the grain kernels and stalks inside the ant holes) to be ownerless they are permitted [to be taken by the poor people] because [then the prohibition] of theft [does not apply to them, since they are ownerless and do not belong to anyone].⁵ Rebbi Shimon Ben Elazar says, “If they (i.e. ant holes) were damaged⁶ [when the poor people came to them, then all of the seeds that are still left inside them] are forbidden because of [the prohibition of] theft [since we assume that the owner damaged the holes himself in order to get out the produce stored inside it and he still wants to come back and take what remains in there].”⁷

מסכת פאה פרק ב

תוספתא יז

.חוֹרֵי נְמָלִים אֲסוּרִין מִשּׁום גָּזֵל, וְאִם הִפְקִירָן בַּעַל הַבַּיִת מוּתָּרִין מִשּׁוּם גָּזֵל. רבי שִׁמְעוֹן בֶּן אלעזר אוֹמר אִם הָיוּ נְזִיקִין אֲסוּרִין מִשּׁוּם גָּזֵל

Notes:

1. Mishna Peah 4:11 states that grain that was collected by ants and brought by them inside their holes is sometimes considered to be Leket and sometimes not. The Mishna clarifies that it depends on whether these holes are located in the area where above ground the grain is still standing or if it has been already harvested. If the holes are in the area where the grain is still standing then everything inside those holes belongs to the owner just like the standing grain around those holes, but if the holes are in the harvested area then the grain inside the ant holes is considered to be Leket just like the grain that is left lying in that area of the field above ground. Our Tosefta argues on the Mishna in terms of the conditions of the locations of these holes. The Tosefta argues that it does not matter in which area of the field the holes are located, and by default we always assume that the owner wants to keep the grain inside ant holes for himself, unless he specifically said that he does not care about it and anyone who wants can take it.

It may seem really strange to a person from a developed country in the 21st century why it would be important to discuss the legality of grain inside ant holes. Why would anyone care about grain that was taken by ants? It is probably a small and insignificant amount. In order to dispel this question I would like explain right away the living conditions of the 3rd century CE when the Tosefta was written. In the 3rd century CE the financial situation of the Jews of the Land of Israel was very dire. There have been a few very harsh famines and at the same time very heavy taxation by the Roman authorities. It was so bad that many farmers were forced to abandon their fields and move to other areas of the country or even outside it where the taxation was not as heavy, because they simply could not produce enough grain to pay the taxes, not even mentioning making a profit from the grain sales. Many farmers abandoned their fields and farming completely and took on other jobs. In such an environment every farmer was very meticulous about keeping every small bit of his harvest, even if that meant that he had to dig up ant holes and take grain from there. Also it needs to be pointed out that the amount of grain inside ant holes is not that little as I will explain in note 3 below. For a detailed analysis of the living and financial conditions of the 3rd century CE Land of Israel and proofs and sources for my summary see Daniel Sperber, “Roman Palestine, 200-400, The Land.”, Bar-Ilan University, 1978, where he discusses all of the details of life that I have mentioned.

2. As I already mentioned above in Tosefta Peah 1:10, note 17, ants that are mentioned in the Tosefta are harvester ants of the genus Messor, which are the most common ants in Israel. These ants’ main food source is grain of which they can collect vast amounts.

3. A single Messor harvester ants’ colony can take up a very large area of the field and may contain many entrances above ground spaced several meters apart from each other. Within such a colony there could be any number of ant trails but research (Claire Detrain, Olivier Tasse, “Seed drops and caches by the harvester ant Messor barbarus: do they contribute to seed dispersal in Mediterranean grasslands?”, Naturwissenschaften, 2000, 87:373–376) has shown there could be even 75 such trails within one colony. Each trail, up to 30 meters in length, can last for an average of 5 days after which the ants stop going on it and make a new trail. While the trail exists it has been estimated that ants carry on it about 50,000 seeds. Based on this research we can extrapolate a rough estimate of how much grain can the farmer retrieve by digging up a Messor harvester ant nest that was collecting grain for 1 month from a field assuming that the ants did not eat any of the grain while they were collecting it.

50,000 seeds per trail / 5 days = 10,000 seeds per day per trail

75 trails * 10,000 seeds per day per trail = 750,000 seeds per day per nest

750,000 seeds per day per nest * 30 days = 22,500,000 seeds

One seed of wheat weighs approximately 50 mg (0.00005 kg)

22,500,000 seeds *0.00005 kg = 1125 kg

That is over 1 ton of wheat seeds, which is a huge number. Obviously the farmer would not be able to retrieve all of it, but even if he succeeds in retrieving 10% (roughly 100 kg in our example) of the grain collected by the ants he can gain a very significant amount of grain that would be otherwise lost. You may wonder how significant a 100 kg of wheat is. According to Food and Agriculture Organization of the United Nations (FAO) the supply quantity of wheat in Israel in 2007 was 113.84 kg/capita/year.(http://faostat.fao.org/site/609/DesktopDefault.aspx?PageID=609#ancor, accessed on 06/10/2010) In other words, 100 kg of wheat can feed one person for a whole year. In poor conditions of the 3rd century CE Land of Israel such an amount of grain could mean the difference between eating well and starving.

Harvester ants’ hole.

4. In other words, according to the Tosefta the farmer is entitled to keep all of the grain collected by ants, unless he specifically says otherwise as will be stated in the next statement of the Tosefta. It seems to me that this was a special Rabbinical enactment that was made to protect the farmers from starving. As I already mentioned in note 1 the Mishna argues on the Tosefta and says that this would depend on where the ant holes which the farmer wants to dig up are located. I would like to suggest that there is a very specific reason why the Tosefta argues on the Mishna. The Mishna was written about 50 years earlier than the Tosefta, roughly in the year 220 CE. At that time the living conditions in the Land of Israel were better than in the second half of the 3rd century CE. Sometimes in the middle of the 3rd century CE the Rabbis changed the law from that of the Mishna to that of the Tosefta. The reason they passed this new enactment is clearly to protect the struggling farmers. This indicates that ants’ seeds were originally considered to be Leket only by a Rabbinical decree and not by Torah law. Clearly the Torah only obligated the stalks dropped by the farmers as Leket and not something that was taken by ants. A further proof that the law of the Tosefta was passed after that of the Mishna is that in the Mishna the law is disputed by Rebbi Meir, where as in the Tosefta it is disputed by Rebbi Meir’s student, Rebbi Shimon Ben Elazar. Rebbi Meir flourished during the first half of 2nd century CE, where as Rebbi Shimon Ben Elazar was active during the second half of the 2nd century CE when the conditions started to rapidly deteriorate. This shows that the discussion of this law took place sometimes during the end of the 2nd century CE, but it was not cemented into law by the Tosefta until the end of the 3rd century when this law was critical to protect the farmers. For a detailed analysis of how the living conditions of the Land of Israel deteriorated as the 2nd and 3rd centuries CE went on, see Daniel Sperber, “Roman Palestine, 200-400, The Land.”, Bar-Ilan University, 1978.

5. It seems to me that the reason the Tosefta says that the poor people do not violate the prohibition of theft in the case when the farmer declared the ants’ seeds ownerless, as opposed to saying it belongs to the poor people, was because it wants to emphasize that no matter what these seeds are not considered to be Leket. They either belong to the owner, or the owner made them ownerless and now they can be claimed by anyone. But they do not belong specifically to the poor people as a gift to the poor, because ants’ seeds are not considered by the Tosefta to be the same as a gift to the poor, forgotten or dropped by the owner, as was held originally, as recorded in the Mishna.

6. There is a great deal of controversy in the commentators on the Tosefta as to what the correct reading here should be. There are at least four possible readings in Rebbi Shimon Ben Elazar’s statement. I have quoted in the main text the reading from the Vienna manuscript which says נְזִיקִין (Nezikin), “damaged”. In the Erfurt manuscript the reading is נקררן גזוזין (Nikraran Gezuzin), which is not clear what the words mean here exactly. In the printed editions of the Tosefta the reading is פיקדון (Pikadon), “deposit”. And finally the Nuschaot Ktav Yad in the Vilna Talmud Bavli edition of the Tosefta quotes a forth reading which says נקברין גזוזין (Nikbarin Gezuzin), “buried and sheared”, which is also not clear in its meaning. Due to the obscurity of Rebbi Shimon Ben Elazar’s statement every commentator on the Tosefta provided his own interpretation of what he thinks it means and tried to force various words into it. Minchat Bikkurim went as far as to say that Rebbi Shimon Ben Elazar’s whole statement does not make any sense and should be deleted. However none of the commentators prefer the reading of the Vienna manuscript for unspecified reasons and do not discuss it. I have chosen that reading, because it makes most sense to me in the Tosefta and it also does not require forceful conjugation and interpretation of the actual words in this statement. The text flows freely with the word Nezikin in it, as long as it is placed in proper context.

.הדירה שלא תתקשט באחד מכל המינין אפי’ היא ילדה והדירה שלא תלבש בגדי זקנה אפי’ היא זקנה והדירה שלא תלבש בגדי ילדה יוציא ויתן כתובה ר’ יוסה אומ’ או’ בעניות שלא נתן קצבה ובעשירות שלשים יום הדירה שלא להשאיל נפה וכברה רחים ותנור תצא שלא בכתובה מפני שמשיאתו שם רע בשכונתו

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Tosefta 16¹

A [single] stalk [of grain] that is [lying on the ground]² among the standing crops [that have not been harvested yet] belongs to the owner [of the field, and is not considered to be Leket (fallen stalks)].³ [A single stalk of grain that is still standing attached to the ground]⁴ in the harvested area belongs to the poor people, [because it is considered to be Leket. However, if] a single stalk of grain is lying on the ground] half way among standing crops and half way in the harvested area, [then] he (i.e. the farmer) should take it and throw it behind him⁵ [so that it will land in the harvested area and it will be obvious to the poor people that it is Leket], because [something that is in reality] doubtfully Leket,⁶ is [officially considered to be] Leket.⁷

מסכת פאה פרק ב

תוספתא טז

.וֹלֶת שֶׁבַּקָּמָה הֲרֵי הִיא שֶׁל בַּעַל הַבַּיִת, שֶׁבַּקָּצִיר הֲרֵי הִיא שֶׁל עֲנִיִּים, חֶצְיָהּ בַּקָּמָה וְחֶצְיָהּ בַּקָּצִיר נוֹטְלָהּ וּמַשְׁלִיכָהּ לַאֲחוֹרָיו שֶׁסָּפֵק לֶקֶט לֶקֶט

Notes:

1. Due to the vague language of this Tosefta it can possibly be related to one of two different Mishnayot, Mishna Peah 4:10 and 5:2. Based on the order of the Toseftot it should be related to Mishna Peah 4:10, because the next Tosefta is clearly related to Mishna Peah 4:11. However based on the wording of this Tosefta it does not really match the language of Mishna Peah 4:10 and instead more fits with the Mishna Peah 5:2. Since the language of our Tosefta is really vague it can be interpreted in a number of ways and can be made to fit with either of the Mishnayot. I have decided to explain this Tosefta in a way that fits its language best without trying to work it out with the expressions of the Mishna on which it comments.

Mishna Peah 4:10 states that classification of stalks as Leket depends on the way the stalks were harvested. The Mishna is very vague in its classification and there are multiple of ways of understanding it, but in general the classification of stalks as Leket depends on whether they were harvested in a normal fashion which indicates that the owner intended to harvest them in that way as they accidentally were dropped. However, if the stalks were harvested in an abnormal fashion, such as with the back of a sickle instead of with its cutting part then the dropped stalks are not considered to be Leket, because we assume that the owner did not mean to cut them that way and therefore they were not considered to be properly harvested, which makes them still belong to the owner and they are not Leket. This Mishna does not say anything about where the stalks have landed physically in the field after they were cut off.

Mishna Peah 5:2 states that if there is a single standing stalk in the harvested area then its designation as Leket depends on how close it is to the remaining standing crops that have not been harvested yet. If it is close enough to the unharvested standing crops that it can be cut off with a sickle in one swing together with some of the standing crops then it belongs to the owner and is not considered to be Leket. However, if it is further away from the unharvested standing crops that it can only be cut off by itself without any other crops then it belongs to the poor people and is considered to be Leket.

According to my explanation of this Tosefta, the Tosefta states the rules for the classification of fallen stalks as Leket based on the location of the stalk in the field after the harvest relative to the areas which have been harvested already and have not been harvested yet. All three cases in the Tosefta are talking about a stalk which has been accidentally bypassed by the farmer during the harvest, either as a stalk dropped on the ground during the harvest or a stalk that was simply left standing by itself, because the farmer missed it with his sickle as he was cutting the crops.

Partially harvested wheat. Photo: Lars Plougmann. Notice the still standing unharvested crops in the left upper corner of the image and a harvested area on the bottom and the right sides if the image. The three cases of the Tosefta discuss stalks in these two areas.

2. If this stalk is located among the still standing crops that have not been harvested yet then the only way for it to be identifiable is Leket is if it is detached and lying on the ground among the standing stalks. If this stalk is still attached to the ground then it is simply a part of the unharvested standing stalks and obviously belongs to the owner.

3. The reason that a fallen stalk in the unharvested area is not considered to be Leket is because we assume that it did not fall there due to the farmer harvesting the crops in a neighboring area, but rather for some other reason. Fallen stalks can be classified as Leket only if they fell as a result of the farmer harvesting the crops, however if they fell for any other reason they are not Leket and still belong to the owner.

4. It is possible to explain this particular case in two ways, either that it is referring to a fallen stalk lying on the ground or to a standing stalk still attached to the ground which was accidentally kipped over by the farmer. The first possibility is that the stalk was cut off by the farmer, fell on the ground and is now lying in the harvested area where there are no more crops. This by definition is the classic case of Leket to which the Torah refers, and therefore it is my humble opinion that there is no need for the Tosefta to state this case since it is directly meant by the Torah in its definition of Leket and is obvious to everyone. Therefore it seems to me that the Tosefta is referring to the other possibility where the stalk was accidentally missed by the farmer and it is still standing attached to the ground. Since the stalk was technically never cut off we might think that it still belongs to the owner and is not Leket. Therefore the Tosefta is coming to teach us that since this stalk ended up in the harvested area as a result of the harvesting process it is considered to be Leket and therefore belongs to the poor people.

If we follow this explanation then the Tosefta is arguing on Mishna Peah 5:2. The Mishna says that such a stalk would be considered Leket only if it is far away from the still standing crops that it cannot be cut off together with them, but if it is close then it is not considered to be Leket. However the Tosefta does not make such a differentiation and implies that regardless of this stalks location relative to the unharvested area it is still considered to be Leket. To me this seems to be even a greater proof why the Tosefta specifically had to mention this case. Obviously it wanted to emphasize its different position on this law from the Mishna. Saul Lieberman in Tosefta Kifshuta points out a problem with this explanation. Most commentators on the Mishna consider this particular case to be a case of Shikcha (forgotten sheaves) and not of Leket, because the stalk was literally forgotten standing in the field as opposed to being dropped. However our Tosefta in its last statement implies that it is talking about Leket and not Shikcha. However, I am not sure that this is a real issue, because the Tosefta states three different cases and it specifically does not say what the first two cases are cases of Shikcha or Leket. Only the last case is clearly a case of Leket. It is possible that the Tosefta included a case of Shikcha among two cases of Leket, because of the similar situation in which they occurred. It is also possible that the Tosefta does not agree with this explanation that this particular case is a case of Shikcha and instead it holds that this is a case of Leket since it was a stalk that was bypassed accidentally as a result of the harvesting process, as opposed to Shikcha which generally refers to crops that already have been harvested, but not yet brought into the silo from the field and were forgotten by the farmer in the field.

If these problems presented by Lieberman bother you then you can always fall back on the basic explanation that the Tosefta is merely talking about the classic case of Leket where the fallen stalk simply fell in the harvested area and is therefore Leket. In this case the Tosefta would be in agreement with the Mishna regarding the case of a single standing stalk, since it is not talking about that case at all. However, to me that explanation is inadequate for the reasons that I already mentioned.

5. The Tosefta uses the expression “behind him” to emphasize that such a stalk can be noticed by the farmer as he cuts his last batch of crops and then stops for the day leaving the rest of the crops still standing in the field, thus unharvested crops being in front of him and harvested area being behind him. The Tosefta emphasizes that the farmer should take notice and should make sure that the poor people would not be confused by such a stalk thinking that maybe it still belongs to the owner, but rather the farmer should pick the stalk up and throw it in the harvested area so that it would be clear to the poor people collecting Leket that this stalk is left there for them as Leket.

6. Since a stalk in the unharvested area belongs to the owner and a stalk in the harvested area belongs to the poor people, a stalk which lying half way in each zone is technically in a doubtful situation and has a special status of doubtfully Leket.

7. The Tosefta states a rule that any case in which a stalk has the special status of being doubtfully Leket, we always consider it as if it is really Leket and therefore it has to be left for the poor. Talmud Yerushalmi (Peah 4:7, Daf 24b) lists three possible reasons for this rule, all of which are based on derivations from verses from the Tanach, which are obviously not real derivations, but rather Asmachtot (references from the Tanach for a Rabbinical law). The Rabbis had enacted such a rule in order to make sure that the farmers respect the poor and properly treat them, especially since the amount of crops in question is really miniscule.

In Mishna Peah 4:11 this rule that what is doubtfully Leket is considered to be actual Leket is stated in the name of Rebbi Meir. Talmud Yerushalmi (Peah 4:7, Daf 24a-b) in its discussion of Rebbi Meir’s opinion implies that the Chachamim (Sages) argue on him and do not hold of this rule, leaving crops in this doubtful status as such. However, the Tosefta by quoting this rule anonymously implies that this is a universal opinion accepted by everyone and therefore not being disputed.

Tosefta 15¹

What is Leket (fallen stalks)?² It is what is left over [in the field] as a result of reaping [with a tool]³ and as a result of detachment [of produce by hand] (i.e. handpicking).⁴ Rebbi Yossi says, “Leket is only what is left [in the field] as a result of reaping [with a tool and not what is left from handpicking], as it says, ‘… and you should not pick up the fallen [stalks] of your reaping.’ (Vayikra 19:9 and 23:22)”^5,6 מסכת פאה פרק ב

תוספתא טו

אֵיזֶהוּ לֶקֶט? זֶה הַנּוֹשֵׁר בִּשְׁעַת קּצִירה וּבִשְׁעַת תְּלִישָׁה. רבי יוֹסֶי אוֹמֵר אֵין לֶקֶט אֶלָּא הַנּוֹשֵׁר בִּשְׁעַת קְּצִירָה בִּלְבָד שֶׁנֶּאמר (ויקרא יט:ט, כג:כב) וְלֶקֶט קְצִירְךָ לֹא תְלַקֵּט.

Notes:

1. Mishna Peah 4:10 defines in anonymous statement that Leket is something that is left over in the field as a result of harvesting. Our Tosefta clarifies that the statement in the Mishna is really the opinion of Rebbi Yossi, but there is another opinion which includes also the produce that was left in the field is a result of handpicking.It was already mentioned above in Tosefta Peah 1:14 that the obligation of all of the gifts to the poor depends on the manner of harvesting the produce and if the farmer harvested them in an abnormal manner then the produce is exempt from all of the gifts to the poor. In the case of grain in order for it to be obligated in the gifts to the poor it has to be reaped with a tool and not plucked out of the ground by hand. Our Tosefta does not mention whether it is specifically talking about grain that is normally reaped or if it is also talking about other types of produce, such as beans, which are also obligated in Leket (see note 6 below), but are normally picked by hand. If we would assume that our Tosefta is only talking about grain then the opinion of the Tanna Kama would be in contradiction with Tosefta Peah 1:14, which said that grain which was plucked by hand is exempt from Leket, because that is not the normal manner in which it should be harvested. Only the opinion of Rebbi Yossi would be in agreement with that Tosefta. However if we were to assume that this Tosefta is not specifically referring to grain, but to all produce which is obligated in Leket, including things that are normally picked by hand, then it is possible to explain it in a way that both the Tanna Kama and Rebbi Yossi agree with the Tosefta Peah 1:14 and their argument has nothing to do with the normal manner of harvesting, but rather with the derivation from the verse mentioned in this Tosefta and if it should be taken literally or not. According to this explanation, both of them agree that if produce was not harvested in the normal manner, such as if grain was plucked out of the ground by hand, then it is exempt from all of the gifts to the poor. However they argue whether produce that is normally picked by hand is obligated in Leket or not. The Tanna Kama holds that it is, but Rebbi Yossi holds that only produce that is harvested with a tool, such as grain, is obligated in Leket, but not produce that is normally picked by hand, such as fruit or beans. Since the verse which Rebbi Yossi mentions and learns literally is only talking about Leket then their argument is only applicable to Leket and not to other gifts to the poor.I have chosen to explain this Tosefta according to the last explanation in order to prevent the possible contradiction. I would like to immediately point out that it is not the way it is explained by many commentators, such as Minchat Yitzchak and Chazon Yechezkel, who explain it based on the way Talmud Bavli (Chulin 137a) explains a similar Beraita. Talmud Bavli’s explanation of that Beraita cannot be applied to this Tosefta, because that Beraita is radically different in its wording and opinions from this Tosefta as was already pointed out by Higayon Aryeh and Tosefta Kifshuta.
2. For a description of what Leket is see above Tosefta Peah 1:13, note 5.
3. Although generally the Hebrew word קצירה (Ketzira) is translated as “harvesting”, it literally means “reaping”. Reaping is the step of the actual harvesting where the stocks of grain are cutoff using a tool, such as scythe or a sickle. The normal process of reaping grain is only done using such a tool. The Tosefta at this point is specifically referring to reaping with a tool.
4. Detachment refers to harvesting any produce by hand by ripping it off the stalk. As I already explained above in note 1, the Tanna Kama holds that when the Torah says וְלֶקֶט קְצִירְךָ (literally: the fallen [stalks] of your reaping), it means “the fallen stalks of your harvest”. The word קְצִירְךָ (Ketzircha) here means “your harvest” in a general sense without a specific reference to the reaping of grain, and therefore it includes in the commandment of Leket produce that is normally picked by hand, as well.
   Sickle.

   
   Scythe.

5. Rebbi Yossi chooses to translate the word קְצִירְךָ (Ketzircha) as “your reaping”, as opposed to “your harvest”, and therefore the verse is only referring to produce which reaped, such as grain. According to him any produce that is not normally reaped would be exempt from Leket.
6. My whole explanation of this Tosefta was built on the assumption that other produce, besides grain is obligated in Leket. The problem with this assumption is that there is no explicit source for it from Talmudic literature. It was already mentioned above in Tosefta Peah 2:13 that Leket applies to grain, but does not apply to fruit. However the Tosefta left open the question whether Leket applies to other things, which are not fruit and are not grain, such as legumes and vegetables. From the Rishonim (medieval authorities) it is implied that Leket applies to legumes as well. For example, see Sefer Hachinuch 218, Smag (Lo Taaseh 284), and the Mishneh Torah of the Rambam (Hilchot Matnot Aniyim 4:2) where he explicitly says that Leket applies to other types of produce besides grain which are normally picked by hand. Aruch Hashulchan Haatid (Hilchot Peah 1:7) discusses this issue and concludes that it is basically an assumption of all of the early and late authorities based on scriptural references, but there is no explicit Talmudic source that clearly states that Leket applies to anything else besides grain. He mentions that Sifra (Kedoshim, Parshitta 1, Perek 1) states that legumes are compared to grain and therefore should have the same law apply to them with regard to all gifts to the poor, however a careful analysis of the Sifra shows that it is only talking about Peah and not about Leket. Some commentators (see Ohr Pnei Melech on the Mishneh Torah of the Rambam (Hilchot Matnot Aniyim 4:2) and Smag (Lo Taaseh 284)) suggest that the source for this law is Mishna Peah 4:10, which is talking about Leket and says that if a person “picked by hand”, which they say is not referring to grain, but rather to another type of produce which is normally picked by hand. This suggestions is however very difficult to accept, because the Mishna itself says that if a person picked it by hand then it is not Leket and still belongs to the owner, implying that it is talking about grain and the reason that it is not Leket, because it was not harvested in the normal manner of harvesting grain. Unfortunately, I was not able to come up with a solid source for this law and therefore I admit that my whole explanation of this Tosefta hangs by a thread and could be easily refuted.