Dividing Demai

Demai (6:9) | Yisrael Bankier | 8 years ago

The Mishnah (6:9) discusses a case where a chaver and an am haaretz inherit property from their father who was an am haaretz. Recall that a chaver is not only neeman – trusted with separating trumot and maasrot – but also particular with the laws of tumah and tahara. An am haaretz on the other hand is not particular or trusted with either. The Mishnah teaches that when dividing the estate, there is no problem when splitting like products, e.g. wheat. The chaver may not however suggest taking all the wheat while his brother takes the barley. Similarly, he may not suggest that his brother take the lach – food that has become susceptible to tumah – while he takes the yavesh – food that has not. We shall try to understand why.

This Mishnah appears to be similar to the previous one. The Mishnah (6:8) there discusses two people either joined in partnership or inheriting produce. That Mishnah also teaches that they can only divide like for like otherwise it is prohibited.

The Bartenura explains that the reason why they may divide like for like is because this Mishnah is according to the opinion that maintains the principle of bereira. In other words, it allows for a future event to determine the current status – retroactive selection. In other words, the brothers each have an equal share in the wheat. Once they divided it, it is as if the share they receive is the share that was theirs from the outset. Consequently, there has been no trading or swapping at the time of division. If however the division is not like for like, then the principle of bereira cannot be applied and it is considered as if they are trading. That being the cases, in the previous Mishnah it is as if they are selling untithed produce to one another. Similarly, in our Mishnah in such a division, it would be considered as the chaver is selling demai (inherited from his father) to an am haaretz – which a chaver is not allowed to do. The Barenura explains that our Mishnah introduces another issue preventing the asymmetrical division, which is the prohibition of a chaver selling lach and yavesh to an am haaretz.

The Bartenura however notes that the earlier Mishnah (6:7) appeared to maintain that the principle of bereira could not be applied. We learnt that if two partners, an am haaretz and a chaver, harvested their vineyard and produced wine, even though the chaver separated maasrot for his share prior to the pressing, he would be required to separate again once they divided the wine. The reason is that we do not apply bereira and we are concerned that the share the chaver receives is the am haaretz’s.

The Bartenura explains that there is difference between when the division is occurring when the produce is detached or still attached to the ground. When dealing with detached produced, each stalk or grape belongs to both parties. Consequently, we cannot apply the principle of bereira. Our Mishnayot must be dealing where the wheat and barley have not yet been harvested. In that case we can say that a specific region is the one he was meant to belong to each party.

The Tosfot Chadashim however questions whether our Mishnah can be referring to produce still attached to the ground. Recall that the issues was effectively selling either demai or tameh produce to an am haaretz. If the produce is still attached to the ground, then it is definitely both tevel and tahor.

Based on this question, the Tosfot R’ Akiva Eiger cites that answer of the Tosfot Yom Tov (Demai 6:12). According to the opinion that maintains the principle of bereira in rabbinic laws, there are still exceptions. If the parties do an action that demonstrates that they wish for the partnership to endure, then bereira is no longer applied. In the case where they took the grapes and pressed them together, there is a definite action that demonstrated this. In our case however, where the heirs did not cut the wheat or perform any other action demonstrating their interest in the partnership, then bereira can be applied. This explanation therefore explains how our Mishnah could be referring to cut produce.

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