Ma’aser Ani in Demai

Demai (4:3) | Yisrael Bankier | 14 years ago

When dealing with regular tevel (untithed produce), first one separates trumah gedola which is given to the kohen. Next a tenth is separated and given to a levi – this is ma’aser rishon. The levi separates a tenth from that, trumat ma’aser, and gives it to a kohen. The orignal person, must then takes a second tithe. In the first, second, forth and fifth years of the shemita cycle this tithe is called ma’aser sheni and eaten by the owner in Yerushalaim. In the third and sixth years this tithe is call ma’aser ani and given to the poor.

When dealing with demai,trumah gedola is assumed to have already been separated by the am ha’aretz. Ma’aser rishon however must be designated so that trumat ma’aser can be separated. The remainder of the ma’aser rishon as well as the ma’aser ani may be kept by the owner because, unlike *trumah,*they have no kedusha. These two ma’asrot are simply the property of the levi and ani. Since it doubtful whether these ma’asrot really need to be separated from demai, the burden of proof is left on the levi and ani if they wish to extract it the purchaser of the demai produce.

Even though the owner can keep the ma’aser ani separated from demai¸ there is a debate regarding whether some of the produce needs to be designated as the ma’aser sheni first (4:3). R’ Eliezer maintains it is not necessary, whereas the Chachamim require it. How do we understand the debate?

The Gemara in Makkot (17a) explains that both agree that if ma’aser ani has definitely not been separated from produce then it is considered tevel¹. R’ Eliezer however understands that since ma’aser ani is “only monetary”, an am ha’aretz will separate it, so the produce is no longer tevel and then keep the ma’aser ani. The Chachamim however understand that since physically separating ma’aser ani requires effort he will not bother. Therefore we must suspect that ma’aser ani has not yet been separated from the demai produce. A closer look at this understanding² of the debate will be valuable as we approach Yom Kippur.

It appears that according to R’ Eliezer we are suspecting the am ha’aretz of stealing from the poor. He separates the ma’aser ani then keeps it from himself. Granted that an am ha’aretz is not particular with ma’asrot, but an assumed thief?! The Tosfot (Gittin 25a) explains that while it is true that we don’t suspect him of a being a thief, nevertheless ma’asrot are different. The reason is that ma’asrot is money that does not have an identified claimant; consequently it is not really considered gezel. Likewise the Rosh here explains that the am ha’aretz considers it his property as he has the right give it to whom he wishes. Furthermore, he does not consider it theft as an ani has not taken it yet.

Returning to the Chachamim, it appears that they understand that for the am ha’aretz, separating ma’aser ani is too much of a bother. One can ask that since we know that designation alone is enough to remove the prohibition of tevel where is the bother? If we assume that the Chachamim agree with R’ Eliezer that if it was simple the am ha’aretz will then keep it, why do they argue? The Maharit (1:25) explains that the am ha’aretz will not know this designation alone is enough, and mistakenly think that physically separation is required. For a large stock, this is a bother. The Chazon Ish(Demai 9:3) however understands it is less of a bother on the conscience of the am ha’aretz to simply ignore the mitzvah than to separate the gifts of the poor and subsequently keep it.

Rationalising away sin; having a false sense of entitlement; willfully making ourselves ignorant to sooth our conscience. Are we better than an am ha’aretz?  

¹ Ran(Nedarim 84b) and Bartenura here explain that there is a chiyuv mita like regular tevel. The Rambam however understand that it is different, and punishable with lashes.

²There are other ways of understanding the debate. The Gemara in Nedarim (84b) also explains that both understand that if ma’aser ani has not been separated from produce then it is considered tevel. R’ Eliezer however understands that if the am ha’aretz did not want to give the ma’aser ani away, he could simply renounce the ownership of all his property, qualify as ani and then take the ma’aser ani. The Chachamim however understand that he would never do that as he would be afraid that others would take his property while they were in an ownerless state.

The Rash also cites the Yerushalmi that explains that the Rabbanan argue that since the purchaser of the demai will be able to keep it why not make him designate it. The Tosfot Yom Tov understands that Yerushalmi is not bringing the Chachamim’s reason; they do suspect the am ha’aretz of not separating ma’aser ani. Instead this is their retort: even though you trust the am ha’aretz, separating ma’aser ani will do no harm. 

The Rambam (Ma’aser 8:9) however understands that the Chachamim only require the ma’aser ani to be separated in case people become accustomed to not separating this second tithe, and in other years also not separate ma’aser**sheni from demai. The Tosfot Yom Tov understands that his position is based on the Yerushalmi.

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