Yerushalmi Demai 6:1 ירושלמי דמאי ו׳:א׳

MISHNAH: He who receives a field as sharecropper from a Jew, a Gentile, or a Samaritan, distributes in their presence¹The sharecropper does not have to give heave before taking his own share.. He who leases²The contract calls for a fixed payment in kind independent of the actual yield. In that case, we do not allow anybody to liquidate his debts from his harvest without separating heave. But in a bid of the rabbis to attract Jewish farmers, the lessee is not required to tithe before he pays his rent. The lessor knows that he has to tithe. a field from a Jew separates heave and delivers to him. Rebbi Jehudah says, when is that? When he gives from that field and from that kind. But if he gives from another field or from another kind³In that case, the payment is simply a financial transaction and does not enjoy special status., he must tithe and give him.
He who leases a field from a Gentile tithes and delivers to him. Rebbi Jehudah says, also he who is a sharecropper for a Gentile on a field that used to belong to his family tithes and delivers to him²⁷As an incentive to make it worthwhile for him to buy back the property from the Gentile..

HALAKHAH: Rebbi Joḥanan said, these are the words of Rabban Simeon ben Gamliel. But the words of the Sages are: From a Jew, he splits; from a Gentile, he gives heave. We have stated⁴Tosephta Demay 6:1: “He who receives a field as sharecropper from a Gentile tithes and gives to him. Rabban Simeon ben Gamliel said, what if the Gentile does not want to tithe his produce? But he distributes and gives before him.” It is clear that the Yerushalmi does not speak about a lease for a fixed amount, because then the Gentile would not be interested in what the Jewish tenant does, but about a sharecropper who will diminish the landlord’s part if he gives heave or tithes prior to distribution.: “He who leases a field from a Gentile separates heave and then gives to him. Rabban Simeon ben Gamliel said: If the Gentile does not wish to give heave, I have no right to it⁵Since the Gentile is the owner and one may not give heave without authorization by the owner, it is impossible in Jewish law to give heave for the unwilling Gentile. Hence, the sharecropper may not give heave before he divides up the harvest., but he⁶The farmer distributes the harvest untithed in the presence of the landlord. distributes and puts it before him.”

Rebbi Zeïra, Rebbi Joḥanan in the name of Rebbi Yannai (Num. 18:28): “You, also you,” to include your plenipotentiary⁸“So you shall lift, also you, the heave of the Eternal.” The expression also you is superfluous; since “also” always means an addition, “also you” means a stand-in. Since he is titled “also you”, it follows that he takes the place of the person authorizing him. The same explanation is given in Terumot 1:1 (fol. 40b/c), Babli Qiddušin41b, Baba Meẓia‘ 22a.. Just as you are in the covenant, so your plenipotentiary must be in the covenant. You appoint a plenipotentiary, the Gentile may not. Rebbi Yasa wanted to say that the Gentile cannot appoint as plenipotentiary another Gentile, but he can appoint a Jew. Rebbi Zeïra said, from the baraita itself: You appoint a plenipotentiary, does that not mean Jews? Similarly, the Gentile cannot appoint a plenipotentiary, not even a Jew. Rav Hoshaia objects: Does the baraita support Rebbi Joḥanan? “Rabban Simeon ben Gamliel said: If the Gentile does not wish to give heave from his produce, he cannot give heave⁹In the opinion of Rabban Simeon ben Gamliel the Gentile cannot appoint a Jew as plenipotentiary for Jewish ritual.” Rebbi Abba said, if he confirms it after him¹⁰This parallels the position of R. Isaac in Tosephta Terumot 1:15: “If a Gentile separated heave for a Jew, even with his permission, it is not heave. … Rebbi Isaac says, if a Gentile separated heave for a Jew and the owner confirms his action, it is heave.” For a Jew, once permission is given, it does not require an additional action on the part of the owner. But the Gentile’s action is not valid unless it is explicitly confirmed by the Jewish owner afterwards; the Gentile does the mechanical work and the Jew gives the separated amount the status of heave..

“ ‘He who leases,’ means he pays in produce, ‘he who rents,’ means he pays money, ‘he who receives,’ as sharecropper for a half, a third, or a quarter¹¹The first two definitions are also found in Tosephta Demay 6:2.”.

So far a Gentile; a Samaritan? Let us hear from the following¹²Tosephta Demay 7:25: “He who gives a field to a Gentile sharecropper, a Samaritan, or to somebody who is not trusted with tithes, even though one is not permitted to do so, he has to tithe for him.” Here the obligation to tithe seems to be a kind of fine imposed upon someone who does not let his field to a trusted Jew. If it is imposed on someone who gives his field to a sharecropper, a fortiori on him who leases his field to a Gentile.: “He who gives a field to a Gentile sharecropper, a Samaritan, or somebody who is not trusted with tithes, before they come to the time of tithes¹³When the produce is prepared to be stored, the obligation of tithes begins. he does not have to tithe for him; after they come to the time of tithes he has to tithe for him.” That is, at a place where Jews are present. At a place where no Jews are available¹⁴There is no reason to impose a fine if no qualified Jewish farmers are available.? Let us hear from the following: Rebbi Simon had fields at King’s Mountain¹⁵As noted earlier, in Amoraic times no Jews were left on King’s Mountain. This entire piece also appears in Avodah Zarah 1:9, fol. 40b.. He asked Rebbi Joḥanan, who told him: Let them lie fallow, but do not lease them to a Gentile. He asked Rebbi Joshua ben Levi who permitted it to him. Rebbi Joshua ben Levi is of the opinion that a place where no Jews are available has the status of Syria¹⁶Cf. Peah Chapter 7, Note 119. The argument implies that Neḥemiah’s covenant applies only to those regions of the Holy Land outside the immediate neighborhood of Jerusalem actually settled by Jews. The territory subject to tithes and Sabbatical therefore is variable over time [S. Klein, HUCA 5(1928) 197–260.]. For Syria, we hear from the following: Rebbi Ḥaggai descended into Homs. The family Astor asked him: Since no Jews are available here, we lease to Gentiles; do we have to tithe for them? He sent and asked Rebbi Zeïra. Rebbi Zeïra asked Rebbi Immi, who told him that they did not have to tithe. From this you hear that the rules of leasing follow Rebbi Yose¹⁷Mishnah Avodah Zarah 1:9: “One does not lease houses in Israel to Gentiles, not to mention fields. In Syria one leases to them houses but not fields, and outside the Land one sells them houses and leases fields to them. These are the words of Rebbi Meïr. Rebbi Yose says, even in the Land of Israel one does lease houses to them and in Syria one sells to them houses and leases fields to them. Outside the Land one sells both to them.” Since one may lease fields to Gentiles, the act of leasing does not remove a field from the duty of tithes. Hence, there is no such duty on the field itself and the Gentile’s part does not have to be tithed by the Jewish landlord. The Yerushalmi’s decision is repeated in Babli Avodah Zarah 21a.. Also from the following: Rebbi Ḥanina, the son of Rebbi Abbahu, said my father had a case; he sent and asked Rebbi Ḥiyya, Rebbi Yasa, and Rebbi Immi, and they taught him that the rules of leasing follow Rebbi Yose; hence, as far as tithing for them is concerned, they¹⁸The landlords do not have to tithe for their exempt tenants. (R. Ḥiyya here is R. Ḥiyya bar Abba.) do not tithe for them.

“If¹⁹Tosephta Demay 1:6. The rule applies both to the sharecropper and to the lessee. Since the preceding Tosephta states the rules for sharecropper and lessee of a Jewish landlord, it follows that this Tosephta (and the one discussed in the following paragraph) deal with a Gentile landlord, which fits in the context of the present Halakhah. he received a field to harvest for wheat²⁰That the agricultural worker takes his wages in the form of the finished product: threshed wheat grain, wine, or oil. This is after the obligation of tithes started., grapes to harvest for wine, olives to harvest for oil, he tithes before he delivers.” Come and see: Before he sows, he separates heave²¹At most, the lessee separates heave; the sharecropper does not give anything before splitting with the owner. This shows that the Tosephta speaks both of sharecropper and lessee.; after it was sown, he tithes? Rebbi Ḥinena said, they made a special decree for the sharecropper, so that the Land of Israel should not lie fallow. But here it is already sown.

“If²⁴Tosephta Demay 1:6. In this case, the payment is given before any obligation of heave and tithes was incurred. he received a field to harvest for early ears, grapes to harvest for baskets of grapes, olives to harvest for baskets of olives, he delivers as is.” That means, if (he is paid) in the same kind; but from another field, or from that field but not from the same kind, he must tithe before he delivers. Rebbi Ḥiyya stated²⁵This is the opinion of the Sages in Tosephta Demay 1:5.: “From the same field, whether it be the same kind or another kind, he separates heave and delivers. From another field, whether it be the same kind or another kind, he tithes and delivers.” The Mishnah follows Rabban Simeon ben Gamliel; what Rebbi Ḥiyya stated follows the Sages, and they disagree. We also may come and state that the Mishnah deals with some place where barley usually does not yield twice as much as wheat²⁶This refers to another disagreement between the Sages and Rabban Simeon ben Gamliel (Baba Meẓia‘ 9:8): “He who receives a field to sow it with barley should not sow it with wheat; wheat, he may sow it with barley. Rabban Simeon ben Gamliel forbids it.” In the opinion of the Yerushalmi, this depends on the relative cash value of the crops raised; if barley yields enough to offset its cheaper price relative to wheat, the lessee is permitted to change the crop. “The Mishnah” in our text means the opinion of Rabban Simeon ben Gamliel, representing actual practice. [In the opinion of the Babli (Baba Meẓia‘106b), wheat needs a more frequent crop rotation and lying fallow than barley and the landlord can always object.] Tosephta Baba Meẓia‘ 9:32, dealing with the subject matter of Mishnah 9:8, does not mention the point of view of Rabban Simeon ben Gamliel.; what Rebbi Ḥiyya stated refers to a place where barley usually yields twice as much as wheat.

There²⁸In Mishnah 1, dealing with leases of agricultural land from a Jewish landlord. you say, he separates heave and delivers to him. Here you say, he tithes and delivers to him. The colleagues in the name of Rebbi Joḥanan: The Sages fined the one who leases from a Gentile²⁹To increase the cost of farming the Gentile’s land, so that people would refrain from leasing and, if all landless farmers are Jews, to force the Gentile to sell out to a Jew. but they did not fine the one who leases from a Jew. Rebbi La in the name of Rebbi Joḥanan: The strict law³⁰That a ḥaver, or any observant Jew, should not deliver any produce not completely tithed to a third person. applies to him who leases from a Gentile but not to him who leases from a Jew.

One baraita supports one and one baraita supports the other. One baraita³¹Tosephta Demay 5:2: “He who leases a field from a Gentile must tithe before delivering to him. Hence, if the lessee bought from a Gentile, or the Gentile sold his crop to another Jew, it is demay.” The anonymous author of the Tosephta is R. Meïr in our baraita. supports the colleagues. “He who leases a field from a Gentile separates heave and delivers to him. Rebbi Meïr says, he tithes and delivers to him.” Could the rabbis say, the Sages fined him who leases from a Gentile but they did not fine him who leases from a Jew? How can a fine apply to leasing from a Jew? But so it is: The rabbis say, the strict law³²It is the law that only heave but no tithe has to be given as a precaution since the grain delivered by the lessee never was stored by him and, therefore, never was subject to tithes. applies to him who leases from a Jew, but Rebbi Meïr said, the strict law³³His strict law is that nobody may deliver produce into another’s hand if that produce is not fully put in order. does not apply to him who leases from a Jew. One baraita supports Rebbi La: “He³⁴Tosephta Demay 5:2: “He who splits the yield of a field with a Gentile tithes before delivering the Gentile’s part. Rebbi Simeon says, he separates heave and delivers the Gentile’s part. Hence, if the Gentile converted or sold to another Jew, he has to tithe before delivering.” (R. S. Liebermann explains that Tosephta as dealing with the problem of retroactive clarification, ברירה, but that explanation is impossible since heave and tithes are due only at storage time, see מנחת ביכורים ad loc. In general, the commentaries on the entire paragraph rely too much on unsupported emendations to be taken seriously.) who leases a field from a Gentile tithes and delivers to him. Rebbi Simeon says, he separates heave and delivers to him.” Could the rabbis say, the strict law applies to him who leases from a Gentile, but the strict law does not apply to him who leases from a Jew; Rebbi Simeon said, the strict law does not apply to him who leases from a Gentile? Can anybody make such a statement³⁵A law is a law and cannot be abrogated for a special class of people.? But so it is, the Sages fined him who leases from a Gentile but they did not fine him who leases from a Jew. Rebbi Simeon said, the Sages did not fine him who leases from a Gentile; hence, if the Gentile converted or sold to another Jew, it is permitted³⁶It is retroactively permitted to the Jew to have leased the land from a Gentile when the Gentile sold his property to another Jew, since finally it again became Jewish land. Rebbi Simeon prefers to have the Gentiles convert with their land instead of driving them off by artificial obstacles..

Him³⁷Here starts the discussion of the rule of R. Jehudah, who makes the situation of the sharecropper on his ancestral land worse than that of any other sharecropper. who says that the law applies, one can understand. He who says, they fined³⁸Why should he be fined? R. Joḥanan explains that the Gentile got the land not by paying for it but by expropriation of the Jew. In that case, the Jew should be pushed to ask for help from his fellow Jews to buy back his land. The statement of R. Joḥanan is quoted as a baraita in the Babli (Baba Meẓia 101a), with מציק instead of מסיק (identical sounds in Galilean dialect; Babylonian spelling as a rule is more historically correct.)? Rebbi Joḥanan said, one has stated this only in the case of oppressors. Since you say so to him, he exerts himself and buys the land back.