Kohen Sharecropper

Demai (6:3) | Yisrael Bankier | 3 years ago

The Mishnah (6:3) records a debate regarding a kohen or levi who agrees to work as an aris (sharecropper) in the field of an Yisrael. The Chachamim maintain just as the owner and aris share in the produce, they also share in the terumot and maaserot. This means that despite the fact the sharecropper is a kohen he cannot assume to retain all the terumah from the yield. R' Eliezer however disagrees in this context, since it is understood that the kohen will take all the terumah. We shall try to understand this debate.

The Yerushalmi elaborates on this debate. The Chachamim challenge R' Eliezer asking with what manner of acquisition was the terumah acquired. R' Eliezer counters that the Chachamim agree that if they stipulated explicitly from the outset that the kohen could retain the terumah, then the stipulation works. Consequently, the question applies equally to the Chachamim -- what is the method of acquisition through which the kohen acquires all the terumah. The answer is that if one stipulated that the kohen can retain the terumah it is considered as if the owner said, pluck some of the produce in order to acquire the terumah. In other words, a kinyan chazaka, an act that demonstrates one's ownership, is being employed to acquire that terumah produce, which is effective for that produce despite being uncut. What then is the basis of the debate? R' Eliezer understands that the stipulation is assumed, and that condition, as we have explained, is assumed to function by way of a chazaka. The Chachamim however understand that one assumption, but not two, can be made. Consequently, the kohen sharecropper would only acquire the produce if the agreement was made explicitly. The above is how R' Chaim explains the Yerushalmi.

The Rambam (Maaser 6:17) rules like the Chachamim but does not add that if a condition was made explicitly it works. R' Chaim (Derech Emunah 6:161) however adds that the stipulation would work according to the Chachamim. He adds, citing the Chazon Ish that if however, the kohen made this condition but also reduced his rate compared to the standard rate of arisut, then it would be forbidden. It would be considered equivalent to the case of mesayeh be'beit hagranot. In other words, it would be forbidden since it would be considered as if the kohen is working for the terumah and not receiving it as a gift.

The Tosfot Anshei Shem however question how the stipulation would work. The maaserot are a davar shlo ba le'lolam -- they do not yet exist. He cites the Yerushalmi that one cannot the sell the maaserot that his field will produce for this reason. He suggests that perhaps the response the Chachamim provide in the Yerushalmi, should be understood as the Chachamim arguing based on the R' Eliezer position that such a condition would work. In truth however, according to the Chachamim it would not.

The Mahara Fulda however understands the flow of the Yerushalmi differently. It is R' Eliezer that suggests that the condition works, to acquire the maaserot based on the chazakah. The Chachamim however disagree, since one cannot acquire that which is not yet in this world. The condition works only if they stipulate that the aris was acquiring part of the land itself -- which is present. Since the stipulation is exceptional - it is to acquire part of the land itself and not just part of what will grow - the Chachamim argue that it cannot be assumed and must be made explicitly. (See also the Mishnah Rishona.)

Perhaps this then is why the Rambam omitted the stipulation. As explained, the Chachamim would disagree with R' Eliezer that a regular stipulation to acquire the maserot would not work. Under normal work relations between a kohen aris and an yisrael, where the aris simply stipulates to receive a share of the yield, an additional clause would not allow the kohen to retain the maaserot. It is only in an exceptional circumstance, where the owner would agree to transfer ownership of a portion of the land so that the kohen can have the maaserot, would such a condition work. Since this is not normal arisut, the Rambam does not raise this possibility in that halacha.

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