Kilayim by Thieves

Kilayim (7:6) | Yisrael Bankier | 3 years ago

The Mishnah (7:6) taught that if bandits seized a vineyard, planted grain, and then eventually abandoned it, the original owner must remove kilayim, even if the first opportunity is during chol ha'moed.

Normally, one is not allowed to perform field work during chol ha'moed. One exception is if obtaining would result in a financial loss¹ - davar ha'aved. The Bartenura explains that one might think that this case is not considered a davar ha'aved since, as we have learnt, ein adam oser davar sheino shelo. The fact that the thugs planted wheat in the vineyard would not make the vineyard assur since the vineyard did not belong to them. Nonetheless, the Chachamim permitted him to remove the kilayim to avoid the appearance that this individual is maintaining kilayim in his vineyard.

The Bartenura provides another explanation. The concern is that the produce might grow by more than one two hundredth and that would make the vineyard assur. Despite the fact that the owner did not plant the grain, it is nonetheless prohibited to maintain the kilayim in his vineyard. Since allowing it to grow one two-hundredth would make the vineyard assur, it is considered a davar ha'aved and removing it on chol ha'moed would be permitted. Consequently, if one is concerned that it might grow that much, one can remove it during chol ha'moed.²

The Mishnah Rishona analyses both these explanations. Recall that according to the first understating the concern is the appearance of kilayim -- marit ayin. Were it not for that, even if the grain grew one two-hundredth, it would not be considered maintaining kilayim. That is because the prohibition of performing work during chol ha'moed is what would be preventing him from removing it. One might ask that if we allowed him to remove the grain, there would be an equal concern of marit ayin in the other direction -- it might appear as if he is doing field work on chol ha'moed. Nevertheless, since the prohibition of kilei kerem is more extreme, the Chachamim ruled that the appearance of maintaining kilayim is a concern that must be addressed. The Mishnah Rishona stresses that according to this explanation the owner is obligated to remove the grain on chol ha'moed.

According to the second understanding however, since the Bartenura opens with "if one is concerned that it might grow...", it would seem that during chol ha'moed the owner is not obligated to remove the grain if it will not grow that much. The continuation of the Mishnah then appears to difficult since it discusses how much more than the standard rate one must pay workers for it to be removed. The ruling implies one is obligated to do so. Another difficulty is if it is simply a question of davar ha'aved then it is obvious that one can remove it during chol ha'moed. Why would the Mishnah need to teach that "even on chol ha'moed" it must be removed? Finally, as we explained in the first explanation, if the prohibition of performing work on chol ha'moed is preventing him for removing the kilayim, then it should not be considered as if he is maintaining kilayim and should not even be assur.³

The Mishnah Rishona therefore prefers the first explanation, that even if one knows that it will not grow enough to present a problem, the Chachamim required that it must be removed during chol ha'moed.

¹ This is not to be confused with the opportunity to profit which is not permitted.

² The Rosh appears to provide an intermediate explanation. One must remove the grain due to marit ayin if it will not grow one two-hundredth. If, however it will, one would certainly be allowed to do so since it would constitute a davar ha'aved since it would become assur due to maintaining kilayim.

³ The Chazon Ish (4:12) cites the next Mishnah to support this. We learn that if branches from a vine were blown in a way that they then overhang produce, and some ones preventing him from pulling them back, it is not considered maintaining kilayim.

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