Selling Trumat Ma’aser

Demai | Ben-Zion Hain | 20 years ago

According to the Gemarah in Sotah (48a), Yochanan Kohen Gadol saw that although all of the farmers were adhering to the laws of trumah gedolah (1/50^th of the total produce that went to the Kohanim), only some were adhering completely to all of the laws relating to trumot and ma’asrot. He therefore declared that all produce sold by unlearned farmers (amei ha’aretz) be known as demai and decreed that anyone who buys demai must give trumot and ma’asrot in case these laws were not followed.

However, due to the fact that this was a stringency, as a large number of amei ha’aretz did follow the laws correctly, Yochanan Kohen Gadol instituted the following amendment to the laws. In order to minimise the economic impact of his decree on the buyer, only trumat ma’aser (1/10^th of ma’aser rishon which was given by the Levi to the Kohen) and ma’aser Sheni (which is eaten by the buyer in Yerushalaim) were taken from the demai. The rest of ma’aser rishon and all of ma’aser ani were not taken due to the principle in monetary law, “the burden of proof rests on the plaintiff”. Therefore the Levi’im and the poor must be able to prove that the am ha’aretz did not correctly tithe the produce – a task that is almost impossible.

Why doesn’t this principle - “the burden of proof rests on the plaintiff” - also apply to the trumat ma’aser that was given to the Kohanim?

Ma’aser rishon and ma’aser ani are not intrinsically forbidden to non-Levi’im. However, the owner of the produce may not eat them because this would constitute theft as the Torah awarded them to the Levi’im and the poor as it says in Devarim (26:13) “and I have also given it [the ma’aser] to the Levi and to the stranger, the orphan and the widow”. As such, the questionable status of ma’aser rishon and ma’aser ani of demai is defined by the principles of monetary law and as stated above, “the burden of proof rests on the plaintiff”.

Trumat ma’aser, however, is forbidden to all except a Kohen. Therefore, the status of trumat ma’aser separated from demai is defined by the principles of prohibitory law. Accordingly, as Rashi states, it is forbidden to the buyer unless he can prove that the grower already separated trumat ma’aser.

However, the law of trumat ma’aser actually contains elements of monetary law as well as prohibitory law. Although the fact that a non-Kohen is forbidden to eat trumat ma’aser is a matter of prohibitory law, it is given to the Kohen free of charge because the Torah awarded it to the Kohanim – a matter of monetary law. This being the case, why must the buyer give the trumat ma’aser to the Kohen in the case of demai? Although the buyer may not eat the trumat ma’aser himself, since the Kohen cannot prove that the am ha’aretz did not tithe the produce, it remains in the possession of the buyer. He could then conceivably sell it to the Kohen that was the “highest bidder”. Why must it be given to the Kohen free of charge?

Rashi explains that Yochanan Kohen Gadol was concerned that if the buyer retained the trumat ma’aser while waiting for a buyer, he would come to eat it. This view is further emphasised in Tosfot in Yoma (9a) who says that the trumat ma’aser is only a small portion and it may only be bought by a limited number of people (Kohanim) and would therefore take a long time to sell if it would be sold at all. Since the penalty for eating trumat ma’aser is Heavenly decreed death, there is good cause to be stringent. It is for this reason that the trumat ma’aser must be removed as quickly as possible from the buyer’s possession and may not be sold.

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