Maasrot Responsibilities of a Contractor

Demai (6:1) | Yisrael Bankier | 9 years ago

The beginning of the sixth perek discusses the responsibility of a contractor to separate terumot and maasrot under different work arrangements. One arrangement is where the worker is an aris; a sharecropper who agrees to provide the owner of the field with a percentage of the yield. The second is a choker who provides the owner a fixed amount. The Mishnah opens by explaining that an aris divides the produce in front of¹ the owner without first separating maasrot.

The Baretunra explains that the Chachamim did not require the aris to separate maasrot in advance of the division in order to remove any deterrent for one engaging in these arrangements. The Chachamim were motivated by the concern for yishuv eretz yisrael; they did not want there to be regions in Israel left uncultivated. Recall, that one is not allowed to sell tevel - produce from which no maasrot have been separated. The Mishnah Rishona therefore understands from this ruling that when the aris provides the owner with his untithed share, it is not considered as if he sold it.²

We find a similar situation with a choker who works another yisrael’s field. In that case he must only separate terumah gedolah but may leave the rest untithed when providing the owner with the payment. The Mishnah Rishona explains that even though, the fixed fee is not considered the owner’s share (it is a payment made by the choker) since the prohibition of selling tevel is rabbinic, they relaxed the prohibition since the field belongs to the recipient.

The Bartenura however provided a different reason why the choker can provide (mostly) untithed produced. He explains that this is because it is understood at the beginning of the work arrangement that the choker would provide the payment in this manner. Nevertheless, as with anyone, the choker must separate terumah gedolah immediately after the completion of work, prior to moving the produce.

The Mishnah Rishona explains that there are two considerations. The first is the prohibition of selling tevel which he addressed. The second however is the financial aspect – the fee that must be paid for working his land. The Mishnah Rishona explains that the Bartenura in his commentary was addressing this second aspect. In other words, for the aris where the only consideration is the prohibition of selling tevel, the Bartenura explains that the Chachamim were lenient due to yishuv eretz yisrael. For the choker, even though this explanation is necessary, a further explanation was required why the choker, as part of the business arrangement, can provide (mostly) untithed produce. The Bartenura there provides the additional reason that it is implicit in the work arrangement.

The Mishnah Rishona however questions the need for the justification of yishuv eretz yisrael in the case of the aris. In that case, since the shares are being distributed according to the original agreement, it should not be considered payment. In other words, in the arrangement of the aris there should be no prohibition of the aris providing the owner with tevel.

The Mishnah Rishona however cites the Rosh who understands that the aris would have been required to separate maasrot were it not for the dispensation. The Rosh suggests that this is because the pasuk of “you shall surely tithe all the produce of your planting” (Devarim 14:22). The Mishnah Rishona however finds this explanation difficult – the produce of the owner does not ever belong to the worker. The Rosh however appears to understand that irrespective of the financial interests, for maasrot, the pasuk considers it all belonging to the one engaged in the “planting”.

This may be related to another discussion. Barteruna comments that when an aris provides the share to the owner, he need not first separate maasrot. The Tosfot Yom Tov explains that that maasrot must be understood to mean both terumot and maasrot in order to differentiate it from the case of a choker that must first separate trumah gedolah. The Chidushei Mahriach however explains that the next Mishnah provides other cases that differentiate between the choker and aris. Perhaps whether an aris must first separate terumah gedolah is based on our discussion. If the owner is simply taking his share, then there is no requirement to first separate terumah gedolah. If however it is considered all “his planting” with respect to maasrot, then much like the choker, the aris must separate terumah gedolah immediately at completion, prior to providing it to the owner.

¹ The Tosfot Yom Tov cites the Rambam who explains that the division must be performed in front of the owners, to ensure that they understand that they are receiving tevel.

² He continues that even according to the opinion that does not maintain the principle of bereira, since the division is bemuchubar they would agree.

Download