The Volunteer Guard

Shekalim (4:1) | Allon Ledder | 13 years ago

The Mishnah (Shekalim 4:1) records a dispute between the Tanna Kamma and R’ Yose in relation to guards that were appointed by the Bet Din during the Shemittah year. The omer offering (brought on the second day of Pesach) and the shtei halechem(brought on Shavuot) must be brought from grain of the new crop. However, during the Shemittah year it was forbidden to plant crops. Therefore, during the Shemittah year these offerings must be brought from sefichim(aftergrowth) which grew spontaneously from seeds that were dropped.

During the Shemittah year all produce that grows is considered ownerless and is free for everyone to take. Therefore, the Bet Din appointed guards to watch over some aftergrowth to ensure that sufficient produce was still available for the korbanot mentioned above. At the appropriate time, the Bet Din sent separate employees to collect the aftergrowth for use in the Bet Hamikdash. The Tanna Kamma holds that the guards were paid out of the shekels that were collected from Bnei Yisrael. R’ Yose holds that the guards could undertake this work in a volunteer capacity and thus forego their pay. What is the basis for their differing views?

The Gemara (Baba Metzia 118a) gives three explanations of the dispute between the Tanna Kamma and R’ Yose. Underlying the three explanations is the question of how one can acquire property that is hefker(ownerless).  For an object to be acquired from another person, the halacha requires a kinyan – an act whereby the acquirer obtains legal rights over that property. There are various modes of kinyan, depending on the nature of the property and the custom among local merchants. For instance, valid acts of kinyan include lifting the object, pulling the object, and, in the case of an animal, striking or calling the animal so that it comes to the acquirer. It was important that the aftergrowth be halachically acquired by the community because communal korbanot are invalid if they are owned by an individual.

According to the first explanation of the dispute, brought by Rabba, the Tanna Kamma holds that a kinyan is not required to acquire an object that is hefker. Merely guarding the object is sufficient. However, according to this opinion, guarding can only acquire the object for the person who is doing the guarding, not for someone else. So according to the Tanna Kamma, it is necessary to pay the guard a salary so that the guard becomes an employee of the community. That way, anything that the guard acquires in the course of his duties will automatically become the property of the community, as his employer.   The problem is – if the guard acquires the property himself (by guarding it) he may not surrender it wholeheartedly and that could make the communal korban invalid.

According to R’ Yose, hefker property does require a kinyan so the guard will not acquire the aftergrowth just by watching it1. Rather, at the appropriate time, the Bet Din will send an employee to collect the aftergrowth on behalf of the community. By physically taking the aftergrowth this employee will be performing a kinyan and therefore he will acquire the aftergrowth on behalf of the community. So according to R’ Yose there is no problem with the guard being a volunteer because we are not concerned that he will acquire the aftergrowth for himself.

According to the second explanation of the dispute (brought by Rava), the Tanna Kamma and R’ Yose both agree that hefker objects can be acquired by watching them, without the need for a kinyan. So what is the dispute? According to Rava, the Tanna Kamma is concerned that the guard will acquire the aftergrowth for himself and will then be reluctant to transfer ownership to the community because he wants the honour of his own property being used for the communal sacrifice. If the transfer to the community is not wholehearted then the communal korban may be invalid. By paying the guard, the guard becomes the employee of the Bet Din(and therefore of the community) and anything that the guard acquires is automatically acquired by the community. In contrast, R’ Yose is not concerned about the possibility that the guards may not transfer the aftergrowth to the community wholeheartedly and thus does not have a problem with the guards being volunteers.

The Gemara then presents a different version of Rava’s explanation. According to this third explanation, the Tanna Kamma and R’ Yose both agree that hefker objects cannot be acquired by just watching them and a kinyan is required. So what is the dispute? 

The Tanna Kamma holds that a law was passed that all guards receive a salary. He believes that this law was passed because the Rabbanim were concerned about unsavoury characters who would attempt to steal the aftergrowth. If the guards were paid by the Bet Din the unsavoury characters would unwilling to steal the aftergrowth. Given this law, if a guard wanted to be a volunteer, he would have to actively forego his salary. There was a concern that he would not forego his salary wholeheartedly and therefore his salary would still belong to him. Communal offerings bought with this money would therefore not be owned wholly by the community and would be invalid. R’ Yose holds that there was no law requiring guards to be paid. According to R’ Yose the Rabbanim were not concerned about unsavoury characters taking the aftergrowth and therefore no such law was needed.  

The Gemara favours this third explanation. 

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