Yerushalmi Demai 5:8 ירושלמי דמאי ה׳:ח׳

MISHNAH: One tithes from a Jew’s produce for that of a Gentile¹⁰²This Mishnah represents only the opinion of R. Meïr, as stated in the Halakhah. and from a Gentile’s for that of a Jew; from that of a Jew for that of a Samaritan, and from that of a Samaritan for that of a Samaritan. Rebbi Eleazar¹⁰³R. Eleazar bar Shamua, cf. מבוא לנוסח המשנה ע׳ תתשעז. The attribution is reasonable here since the first Tanna is identified as R. Meïr, contemporary of R. Eleazar. The reason of R. Eleazar is that Samaritans always tithe what they eat but not what they sell, but it could happen that a Samaritan farmer tithes for his own use and then for some reason sells that produce which is already in order and cannot be used to tithe any other. In the Tosephta (Demay 5:22), the statement and the reasoning behind it are attributed to R. Eliezer (ben Hyrkanos); this is reasonable there since his opponent is his contemporary, R. Ṭarphon. prohibits from that of a Samaritan for that of a Samaritan.
A flower pot with a hole is like earth¹³³If a root can grow out through the hole, the soil in the pot is considered part of the earth and in all respects the produce grown in such a pot is produce grown on a field.. If he gave heave from the earth for a pot with a hole, or from a flower pot with a hole for produce of the earth, his heave is heave. From a pot without a hole¹³⁴The produce of a pot without hole is not “produce of the field;” there is no Biblical commandment to give heave and tithes from such produce. The amount separated for heave, therefore, is not heave in Biblical law; only the rabbis ordered that heave and tithes should be given also from produce not grown on the earth (Kilaim 7:6, fol. 31a.) But since it is not heave from the Biblical point of view, heave must be taken a second time from the produce subject to heave. for one with a hole it is heave¹³⁵However, it does not create dema‘ (Tosephta Demay 5:25, Yerushalmi Kilaim 7:6)., but he must take heave a second time. From a pot with a hole for one without a hole¹³⁶Since the pot without a hole cannot cause heave to be given by Biblical law, the “heave” still is ṭevel and heave and tithes must be removed. The rest should be treated as heave by rabbinical decree, as in the previous case., it is heave that should not be eaten unless heave and tithes were taken for it¹³⁷In Babli Yebamot 89b, it says “heave and tithes from another place,” considering it similar to dema‘. This definitely is not the position of the Yerushalmi.. If he took heave from one demay for other demay, or from demay for certain produce, it is heave, but he must take heave a second time¹³⁸Since we do not know whether the produce from which heave was taken was already tithed or not.. From certain produce for demay¹³⁹Since in the majority of cases demay was tithed, the heave taken would remain ṭevel. Hence, it must be treated as if it were certain ṭevel., it is heave that should not be eaten unless heave and tithes were taken for it.

HALAKHAH: The Mishnah¹⁰⁴Parallels Giṭṭin 4:12, Babli Giṭṭin47a; there the dispute is between two Amoraim, Rabba (in Babylonia, holding that Gentile land is subject to tithes) and R. Eleazar (in Galilee, holding that the Gentile’s land is free from tithes.) The verses quoted also are totally different. Tosaphot (Giṭṭin 47a, s. v. אמר רבה) prove that in the opinion of the Babli, R. Meïr frees Gentile land from heave and tithes except if it is leased to a Jewish sharecropper. In Tosephta Demay 5:21, the position of R. Meïr is the same as here, the opposition consists of R. Jehudah, R. Simeon, R. Yose. The Tosephta is quoted in Babli Menaḥot 66b; there, R. Meïr and R. Jehudah agree with R. Meïr here; R. Simeon and R. Yose oppose. In the interpretation of the Babli Menaḥot, the disagreement is not about the status of the Land; it is universally held that ownership of real estate by a Gentile does not free the Land from its obligations. Rather, it is the ownership of the grain at the moment the obligation of heave and tithes starts, i. e., when the grain is stored. Since a Gentile is not subject to the laws of the Torah, R. Simeon and R. Jehudah hold that his grain cannot be subject to those laws. Cf. also Peah, Chapter 4, Notes 129–131. is Rebbi Meïr’s, since Rebbi Meïr says that a Gentile may not acquire real estate in the Land of Israel to remove it from tithe; Rebbi Jehudah and Rebbi Simeon say, a Gentile may acquire real estate in the Land of Israel to free it from tithe. Rebbi Immi in the name of Rebbi Simeon ben Laqish: The reason of Rebbi Meïr (Lev.25:46): “You shall transmit them¹⁰⁵Non–Jewish slaves. by inheritance to your sons after you, to inherit by the rules of real estate.” This brackets real estate with slaves. Just as you may buy slaves from them but they cannot buy from you¹⁰⁶In Babli Yebamot 46a, this is derived from the verse Lev. 25:45: “ ‘Also from the children of the inhabitants that live among you, from them you may buy;’ you, but not they.” As a matter of practical law, since the Jewish buyer of a non–Jewish slave is required to convert him, and the slave then is subject to the commandments of the Torah; if his owner would sell him to a Gentile, the slave automatically would go free., so real estate you may buy from them but they cannot buy from you. Rebbi Eleazar ben Rebbi Yose said before Rebbi Yasa, the following supports Rebbi Meïr (Lev. 25:23): “The land shall not be sold permanently, because the land belongs to Me,” absolutely¹⁰⁷This cryptic note refers to Sifra Behar,Parashah 4(8): לצמיתות לחולטנית, “permanently means absolutely.” See R. Shaul Israeli, ספר ארץ חמדה⁴ Jerusalem 1999, p. 195 ff.. He said to him, that in itself supports Rebbi Simeon. “It shall not be sold”¹⁰⁸If it could not be sold, there would be no sin in selling it, since the transaction would be void. But since selling agricultural real estate in the Land of Israel to a Gentile is a sin, by necessity the sale would be valid and would imply unrestricted transfer of title., because if it was sold, it would be sold absolutely.

The Great Rebbi Ḥuna from Sepphoris said, Rebbi Ḥanina instituted in Sepphoris following Rebbi Simeon¹⁰⁹That produce grown by a Gentile on his own land, or the land of another Gentile, is free from any duty of heave and tithes and cannot be used for any tithing. Since two authorities testify to it, this is the received practice. See in Note 104 that the names of R. Simeon’s partners vary with the sources; this might be the reason that he alone is quoted.. Rebbi Zeïra said, Rebbi Ḥanina instituted in Sepphoris following Rebbi Simeon.

Rebbi Zeïra said before Rebbi Abbahu in the name of Rebbi Eleazar: Even though Rebbi Meïr says that a Gentile may not acquire real estate in the Land of Israel to free it from tithes, he agrees here that he may acquire property rights. Rebbi Abba said, in order to eat its fruits. Did we not state: “The buyer¹¹⁰Mishnah Giṭṭin4:9. The Jew who bought agricultural land in Israel from a Gentile can bring its First Fruits to the Temple even though this is not his inheritance from the land distribution by Jouhua. For Rebbi Meïr, who holds that possession by a Gentile cannot change the status of the Land relative to the duties imposed on it by the Torah, it should be clear that just as heave and tithe were not lifted from the Land, so the duty of First Fruits was not lifted. Why then is the bringing of First Fruits classified as a rabbinical ordinance, “for the good of the world,” in order to encourage people to buy land in Israel, and not as original Biblical obligation? brings First Fruits for the good of the world.” Why does he not bring it as a Biblical obligation?

Rebbi Jonah, Rebbi Simon in the name of Rebbi Joshua ben Levi: He who buys loose produce from a Gentile separates heave and heave of the tithe as a matter of practice, gives it to the tribe, and receives money from the tribe¹¹¹See Chapter 3, Notes 131–132. Since heave is taken as a matter of common practice, heave and heave of the tithe remain the property of the owner (Babli Bekhorot 11b). Since heave and heave of the tithe may be eaten only by Cohanim, presumably they will make a very low offer for the food, but they must pay.. But he who buys produce still in the ground from a Gentile separates heave and heave of the tithe as a matter of practice, gives it to the tribe, and does not take money from the tribe¹¹²Since the obligation of heave and tithes comes only when the harvest is stored, the obligation devolves on the Jew and the tithes are the immediate property of the Cohanim; the owner only has the choice of whom to give.. What is the reason? (Num. 18:26) “If you remove the tithe from the Children of Israel.” From the Children of Israel you remove the tithe, but not from the acquaintances of Cohanim or Levites¹¹³This refers to the second case, when the owner can decide to whom to give. However, it is possible that the sentence should read (Sifry Zuṭa Qoraḥ#26): “From the Children of Israel you remove the tithe, but not from Cohanim or Levites.” In that case, the quote has no direct connection with the discussion here.. From the Children of Israel you remove the tithe, but not from the hand of a Gentile¹¹⁴This refers to the first case, when the harvest was the Gentile’s and no Biblical obligation of heave and tithes was incurred. The Babli (Bekhorot 11b) reports in the name of R. Joshua ben Levi that only heave, not heave of the tithe, must be given as a matter of practice. This is a serious disagreement between the two Talmudim..

Rebbi Aḥa said, in the days of Rebbi Hoshaiah they wanted to vote on King’s Mountain¹¹⁵A conquest of king Alexander Yannai, not part of the settlement of Judea and Galilee by the returnees from Babylonia, but part of the Jewish state in the later Hasmonean times. It seems that in early Amoraic times King’s Mountain was entirely in Gentile hands., to free it from tithes. They said, let Rebbi Hoshaiah come. Before he could come, the opportunity was lost¹¹⁶A war was going on and the assembly was dispersed..

Rebbi Judah ben Pazi in the name of Rebbi Hoshaiah: Practice follows Rebbi Simeon. Otherwise, we would say, between Rebbi Meïr and Rebbi Simeon, practice does not follow Rebbi Simeon¹¹⁷In the Babli, Eruvin 46b, the question about whose opinion prevails remains unanswered. In rabbinic tradition (Maḥzor Vitry p. 490, see the sources quoted there, note חֹ), between R. Meïr and R. Simeon practice follows the one who is more restrictive. However, R. Asher ben Yeḥiel (Roš,Abodah Zarah 2, #34) holds that between R. Meïr and R. Simeon practice follows R. Simeon.. But because it was stated: “Rebbi Simeon from Shezur said, once some produce that was ṭevel was mixed up with my produce. I asked Rebbi Ṭarphon, and he told me: Go and buy from a Gentile¹¹⁸R. Ṭarphon also holds that any produce grown in the Holy Land is subject to heave and tithes. The Gentile cannot separate heave and tithes; even if he wants to follow the Jewish rules and donate his tithes to Jewish priests, his heave is no heave. Hence, produce grown by a Gentile is certainly untithed and can be used to tithe other produce. and tithe for it.” On that we have stated: “Rebbi Jehudah and Rebbi Simeon say, a Gentile may acquire real estate in the Land of Israel to free it from tithe.” Lest you think that this case has two¹¹⁹R. Ṭarphon and R. Meïr, belonging to two separate generations. opposed by two¹²⁰R. Simeon and R. Jehudah in our text, R. Simeon and R. Yose in the Babli. All three belong to the same generation. [One has to wonder why one tries to insist here on the status of R. Simeon since it is agreed that both R. Jehudah and R. Yose have precedence over R. Meïr (Babli Erubin 46b, Yerushalmi Terumot 3:1, fol. 42a, Pesaḥim 4:1, fol. 30b), and even if one agrees to count R. Jehudah with R. Meïr as in the Babli text, R. Yose has precedence over R. Jehudah (Babli Erubin 46b, Yerushalmi Yebamot 4:11, fol. 6a).]. Therefore, he had to say that practice follows Rebbi Simeon.

In addition, from the following: Rebbi Zeïra said, Abba the Anatolian bought produce from an Aramean¹²¹In both Talmudim, “Aramean” means Gentile.; he came before Rebbi Judah ben Levi¹²²A contemporary of R. Joshua ben Levi. Since the story implies that he was a Levite who could receive tithes, “ben Levi” simply means “Levite.” The same probably applies to R. Joshua ben Levi, and no relationship between R. Jehudah and R. Joshua is implied except for the fact that both were Levites. who sent his son Menaḥem to put it in order; he¹²³Abba gave to Menaḥem. gave him his tithes. When he returned, Rebbi Joshua ben Levi met him and said, who else but your father would do such a thing¹²⁴To tithe produce grown and harvested by a Gentile. Hence, R. Joshua ben Levi must agree with R. Simeon, and the former is the great authority.? The arguments of Rebbi Joshua ben Levi are inverted. There, he says that he who buys loose produce from a Gentile, separates heave and heave of the tithe as a matter of practice, gives them to the tribe, and receives money from the tribe; and here he says so! Rebbi Abba bar Zamina said before Rebbi Zeïra, Rebbi Simon does not say so, but when he returned, Rebbi Joshua ben Levi met him and said, this does not belong to your father¹²⁵The tithes were given by a misunderstanding that they were regular tithes. Since R. Joshua ben Levi requires that the Levite pay for these tithes, they cannot become the property of R. Judah ben Levi unless Menaḥem paid for them. In this version, R. Joshua ben Levi is consistent.. Rebbi Zeïra was offended.

Rebbi Aḥa, Rebbi Tanḥum bar Ḥiyya in the name of Rebbi Joshua ben Levi, three¹²⁶The list contains only two entries. But since the application here is to show that R. Zeïra was rightly offended, the case of produce bought from Gentiles has to be added. may tithe without permission: He whose ṭevel was mixed with profane produce¹²⁷As noted before, since every Jewish farmer did give the first heave which may be given in a minimal amount, it is impossible to buy on the market Jewish produce that can be used to fix a mixture of profane and ṭevel produce. Hence, any farmer who uses his own ṭevel produce to take care of his neighbor’s problem, does his neighbor a great favor and we are justified in decreeing that the neighbor’s consent is implied and he does not have to be asked beforehand. “Permission” in the text means consent by the owner of the produce.. And he who buys from the division of the Samaritans¹²⁸Mishnah Taäniot 3:4 explains that in Temple times, in Judea everybody has to be believed in matters of ritual purity of wine and olive oil used in the Temple. This implies that in Galilee only ḥaverim are trustworthy. The reason is explained in Halakhah Taäniot 3:4 (fol. 79c), because “the division of Samaritans” separates Judea from Galilee and it is impossible to bring wine and olive oil in purity from Galilee to Judea (since Samaritans, like Gentiles, do not bury still-births in cemeteries but anywhere at roadsides, and one cannot exclude the possibility that one might step over such a grave which imparts the impurity of the dead to wine and oil.) [In the Babli (Taänit 25a), it is asserted that a strip of Gentile land separates Galilee from Judea.] The division of the Samaritans therefore is the region of Samaria inhabited exclusively by Samaritans and produce from there is certainly ṭevel in all respects. Anybody who removes heave from this produce and turns it into regular demay removes a hidden stumbling block from the unwary buyer.. Rebbi Zeïra said, this implies that he does not take money from the tribe. If you say that he takes money from the tribe, he tithed with permission¹²⁹If money was to be given to the owner of the produce for heave and the heave of the tithe, he would be happy if somebody else did the work for him practically without cost to him. Hence, this would have the status of tithing with the knowledge of the owner; R. Simon cannot be correct in his transmission of the tradition of R. Joshua ben Levi and the latter must hold that practice follows R. Simeon.!

Rebbi Joḥanan said, the reason of Rebbi Eleazar¹³⁰Discussion of the statement of R. Eleazar in the Mishnah.: Just as they declared the produce of the Land of Israel demay notwithstanding the majority¹³¹Since most of the amē haäreẓ farmers did tithe, there would have been no need for demay. Now that there is demay, we have to worry that the bunch before us is not in order but all others, the greater part, are in order. Therefore, demay may not be tithed from one batch on the other. and one may not give heave or tithe from one for the other, so they declared the produce of Samaritans certain¹³²Since Samaritans are not obligated by their rules to give heave and tithe from produce they sell, we declare all their produce to be certain that no heave or tithes were given, even though there might be a sizeable minority, in particular in regions where Jews and Samaritans farm together, who tithe. Because of that minority, we may not permit tithing from one farmer’s produce for that of another., notwithstanding the majority one may not give heave or tithe from one for the other.

Rebbi Abun bar Ḥiyya in the name of Rebbi Zeïra: They declared a pot¹⁴⁰A pot without a hole, since a pot with a hole is not doubtful at all. to be of doubtful status. But did we not state: “A pot with a hole sanctifies in the vineyard¹⁴¹Mishnah Kilaim 7:8. The language is from Deut. 22:9: “Do not sow two kinds in your vineyard, lest the fullness of the seeds that you are sowing together with the yield of the vineyard be sanctified.” Sanctified here means that it becomes like dedicated sacrifice, forbidden for all use; קרבן “sacrifice” has the same meaning in non-sacrificial context (Mishnah Nedarim 1:2,Matthew 15:5)., a pot without a hole does not sanctify in the vineyard¹⁴²The Mishnah implies that a pot without hole, put in the earth in a vineyard, certainly is not considered growing in the vineyard..” Because of doubt¹⁴³The Mishnah expresses the Biblical law, but because of doubt there is still a rabbinic prohibition to grow grain in a pot without holes in a vineyard (Maimonides Kilaim 5:16)..

Just as you say, “from certain produce for demay, it is heave that should not be eaten unless heave and tithes were taken for it,” should one say so also for “from one demay for other demay?¹⁴⁴Since demay probably is in order, why should the two cases have different rules?” Rebbi Abun bar Ḥiyya in the name of Rebbi Samuel bar Rav Isaac, this means that a case of doubtful dema‘ is like a case of doubt about heave of the tithe from demay; it is free from the rules of certain produce¹⁴⁵We do not whether the produce is dema‘, containing the forbidden heave of the tithe. Here all the leniencies of demay given in the first two chapters do apply..