Bava Metzia 88b (פח:) — the Talmud in English

For they would say:

They expound the verse

“You shall surely tithe

all the produce of your seed, etc.,”

“and you shall eat,”

as follows:

Since the verse juxtaposes the obligation of tithing with “and you shall eat,” it comes to say: Only one who completes the processing of his produce and brings it into his house in order to eat it is obligated to tithe;

but not a seller,

for if the homeowner completed the processing of his produce with the intention of selling it, he is exempt from tithing it.

Likewise, they expound the verse, “You shall surely tithe all

the produce of your seed,”

that only one whose produce was sown in his field is obligated to tithe;

but not a purchaser,

one who purchases detached produce, whose produce did not grow in his domain, is exempt from tithing it. If so, why was it necessary for the Torah to exempt a laborer from tithing? The produce did not grow in his domain in any event! The approach of Rabbeinu Tam is that the exemption of a purchaser applies when the purchaser bought smoothed produce; but if he bought unsmoothed produce and smoothed it in his own domain, the purchaser must tithe. The reason is that since the tithing obligation takes effect at the time of smoothing in the purchaser’s possession, the phrase “the produce of your seed” can be applied to it with regard to the purchaser: that is, “your produce” that became obligated in your domain, rather than produce that is not “the produce of your seed,” meaning produce that did not become obligated in your domain. But produce that the purchaser smoothed became obligated in his domain, and the exemption of a purchaser does not apply to it. [Regarding Rabbeinu Tam’s view, everyone agrees that the purchaser must buy the produce before smoothing. But if he bought it before its entry into the house, and the purchaser took it and brought it into his house, that alone is insufficient for the produce’s obligation to be considered to have taken effect in the purchaser’s domain, so that it can be called “the produce of your seed” and obligate him. Certainly, the completion of processing includes the smoothing of the produce; without it, even if he brings it into the house, he does not become obligated to tithe, since the completion did not take place in the purchaser’s domain. Entry into the house alone, without smoothing, is insufficient to impose an obligation.] The Rambam’s approach is like that of Rabbeinu Tam: a purchaser is exempt when he buys after smoothing, but one who buys before smoothing and smooths the produce in his own domain must tithe. The Rambam added a condition: The seller must have smoothed the produce with the intention of selling it, and smoothing with the intention of selling does not impose an obligation. But if the seller smooths it with the intention of eating it and afterward changes his mind and decides to sell it, the purchaser must tithe, since the produce had already become obligated while in the seller’s possession, and an obligation that has already taken effect does not lapse. The source of the Rambam’s words is our passage: “You shall surely tithe … and you shall eat”—but not a seller. The Rambam explains this to mean that smoothing with the intention of selling does not impose an obligation to tithe. The significance of this exemption is with regard to the purchaser, who is not obligated to tithe because of the seller’s smoothing, which was performed with the intention of selling. Rav Chaim asked: If so, according to the Rambam, why do we need an exemption for a purchaser? There is no basis for obligating him, since the smoothing performed in the seller’s domain was done with the intention of selling and is not smoothing that imposes an obligation to tithe. On the basis of this, Rav Chaim innovated that even one who smooths with the intention of selling, if he later changes his mind and decides to eat the produce, the produce becomes obligated in tithing, since it is now smoothed and designated for eating. Consequently, if there were no exemption for a purchaser, and in the purchaser’s possession the produce was designated for eating, the purchaser would become obligated immediately: The completion of processing that took place in the seller’s domain combines with the purchaser’s intention to eat and obligates the produce to be tithed. The Torah therefore innovated that in the purchaser’s possession the produce cannot become obligated, and his intention to eat does not combine with the smoothing performed by the seller to obligate the produce in tithing. The Chazon Ish disagrees and maintains that one who smooths with the intention of selling, even if he later changes his mind and intends to eat the produce, does not cause the produce to become obligated in tithing again, since its processing was completed under an exemption. Concerning Rav Chaim’s question—if so, why do we need an exemption for a purchaser, since this produce had no obligating completion of processing, as the seller smoothed it with the intention of selling—the Chazon Ish answered that without the exemption of a purchaser, we would not exclude one who smooths with the intention of selling. Only after it was established that the purchaser’s eating is not considered significant eating for purposes of becoming obligated in tithing do we expound that even a seller who smooths for the purpose of selling, so that the purchaser will eat it, has not performed a completion of processing for significant eating that would impose an obligation to tithe. Tosafot wrote that even after the exemption of a purchaser, if the seller then buys the produce back from the purchaser, since it is the seller’s “produce of your seed,” for it grew in his possession, the seller once again becomes obligated to tithe. We learn from this that the exemption of a purchaser is not an intrinsic exemption of the produce, as though it were not subject to the separation of tithes—for if it returns to the seller’s possession, he must tithe it. How could it be that after being exempt it would become obligated again without any intervening act? Rather, it must be that the produce is in fact subject to separation, but although it is produce that is subject to tithing, the purchaser may eat it without tithing. On this basis, the Minḥat Ḥinukh seeks to innovate that if the purchaser tithes, the tithe he separated has the status of a Torah-authorized tithe. The practical consequence is that even if the seller later buys the produce back from him—and according to the Tosafot cited, the produce is subject to a Torah obligation in the seller’s possession—it should not be said that the purchaser’s separation was not Torah-authorized because the purchaser was exempt from tithing. On the contrary, the purchaser’s separation would subsequently be sufficient to exempt the seller, who becomes obligated by Torah law. Once we have explained that the produce itself is subject to separation, except that the purchaser is not obligated to separate and is permitted to eat it without separation, if he does separate tithes, his tithes are Torah-authorized tithes. The purchaser’s separation is effective to exempt the seller from tithing when the seller subsequently returns and purchases the produce from the purchaser, just as when one separates teruma before smoothing: the produce may still be eaten, yet since it is produce subject to tithes, one may separate from it in advance in order to exempt the obligation that will take effect later through smoothing. Likewise, the purchaser may separate in advance in order to exempt the obligation that will take effect the next day, when the seller returns and purchases the produce.

Rather,

it is necessarily the case that the beraita that comes to exempt a laborer from tithing is

rabbinic,

based on the obligation enacted by the Sages, who also obligated a purchaser whose produce did not grow in his domain to tithe.

And

if the

verse

cited by the beraita is

merely an asmachta,

the Sages attached the exemption of a laborer even from a rabbinic obligation to the verse.

Therefore, Rabbi Yannai and Rabbi Yoḥanan are not contradicted by the question of why a verse is needed to exempt a laborer who eats in the field, given that without bringing the produce into the house there is no obligation to tithe. All that applies by Torah law; but by rabbinic law, a purchaser must tithe even before bringing the produce into his house, whereas with regard to a laborer, the beraita innovates that he is not considered a purchaser.

But now another difficulty arises: Since we have said that the derivation from the verse exempting a laborer from tithing is merely an asmachta, because by Torah law even an ordinary purchaser is exempt—

Rather,

if so,

“according to your appetite”—for what purpose does it come?

For what purpose did the Torah need to compare the laborer’s eating to that of the homeowner?

The Gemara answers:

As it was taught in a beraita: “According to your appetite”—just as with regard to yourself, if you muzzled yourself, you are exempt,

for the homeowner is permitted to prevent himself from eating while working in the field,

so too a laborer: If you muzzled him, you are exempt.

A laborer whom the homeowner prevented from eating during his work, of the produce with which he was engaged—whether he prevented him by force or hired him on the condition that he would not eat from the produce, but would instead receive payment in return— the homeowner does not violate the prohibition, “You shall not muzzle an ox while it is threshing.” The verse comes to teach that one may not derive the prohibition against muzzling a laborer by means of a kal va-chomer from muzzling an ox while it is threshing, as will be explained below in the Gemara. Accordingly, if the prohibition “You shall not muzzle,” which is stated with regard to an ox, also applied to a laborer [that is, were it not for the verse “according to your appetite,” which teaches that the prohibition “You shall not muzzle” stated with regard to an ox applies to a laborer], it would be forbidden to prevent him from eating even when his rights were not being withheld—for example, when he waived his right to eat, or when he stipulated that in exchange for not eating he would receive wages. It would still be forbidden to prevent him from eating, as with an ox, which may not be prevented from eating even when no one’s rights are being deprived. Consequently, when he stipulated that he would relinquish his right to eat and receive wages in exchange for relinquishing it, he could still retract his waiver and eat, and the homeowner could not prevent him, since he may eat even after waiving his right and has no right to eat. Similarly, in the case of an ox, nothing would be changed by his waiver: the waiver would neither prevent him from eating nor obligate the owner to pay him in exchange for refraining from eating. However, once we have learned that the prohibition “You shall not muzzle” stated with regard to an ox does not apply to a laborer, there is an obligation to allow the laborer to eat only because of his rights to eat; once he relinquishes his rights, he can no longer retract and eat.

Mar Zutra raises an objection

to the statements of Rabbi Yannai and Rabbi Yoḥanan, who said that untithed produce does not become obligated in tithing until it enters the view of the house or the courtyard, each according to his own position—

We learned in a Mishna in tractate Ma’asrot [1:5]:

What is the “threshing floor”

of produce

with regard to tithes?

When is the completion of the collection of produce, called its “threshing floor,” at which point it becomes obligated to be tithed?

With regard to cucumbers and pumpkins, once they are shefakses.

That is the completion of their processing, and from then on it is forbidden to eat from them without separating terumot and tithes.

And Rabbi Asi said

to explain what the Mishna means by “once they are shefakses”:

Once their fikes has been removed.

Once he has finished collecting them and removes the blossom at the top of the fruit.

And Mar Zutra proves:

Is it not

the intention of the Mishna to say that immediately

once they are shefakses,

by removing the blossom at the top of the fruit, they become obligated in tithing? And this is

even in the field,

before he brings them into the house, since their processing has already been completed with regard to tithing. But this is difficult for Rabbi Yannai and Rabbi Yoḥanan, who said that completion of the produce’s processing does not obligate it in tithing until he brings it into the house or courtyard?

The Gemara answers:

No.

The Mishna is speaking of a case in which he brought them into his house before removing the blossoms, and only

once they are shefakses

once the blossom at their top has been removed

in the house,

after they were brought inside, do they become obligated to be tithed, since the fruit still required an additional stage of processing, namely, the removal of the blossom at its top. Tosafot asked: Entry into the house imposes an obligation only when the produce enters the house after its processing has been completed. But if it enters the house before its processing is completed, and only afterward its processing is completed, since its entry into the house took place under circumstances in which it could not impose an obligation on the produce [for its processing had not yet been completed], how can that earlier entry into the house return and impose an obligation on the produce after its processing is completed? For Rabbi Oshaya said: A person may devise a stratagem regarding his grain (to prevent it from ever becoming obligated in tithing) and bring it in with its chaff (into his house). Since it entered the house before the chaff was separated from the grain, and the processing of the grain had not yet been completed, does entry into the house no longer impose an obligation even if he later smooths the grain inside the house? Tosafot answered that Rabbi Oshaya’s ruling applies specifically to grain, which people do not ordinarily bring into the house while it is still in its chaff. Cucumbers, however, which people ordinarily bring into the house before fikus, become obligated in tithing after they undergo fikus, even though their entry into the house occurred before fikus. The Rash, in tractate Ma’asrot, distinguished between the cases: when grain is brought in with its chaff, the kernels are covered by the chaff and do not come into the view of the house; whereas when cucumbers are brought in before fikus, they do come into the view of the house, since they are uncovered, although they require an additional stage of processing. If that stage is performed in the house, they become obligated to tithe. The Rambam, however, maintains that Rabbi Oshaya’s ruling was stated only when the processing of the produce will not ultimately be completed. One who brings grain in with its chaff, if he wishes to remain exempt from tithing forever, must each time complete the processing of only as much of the produce as he currently wishes to eat. [When he removes the chaff from only as much as he needs for a pot or dish each time, this is not an act completing the processing of the produce; rather, he is preparing the food solely for his own immediate eating.] But if he begins completing the processing of the produce with the intention of completing all of it, each portion that he completes becomes obligated in tithing, just as with cucumbers, where with each act of fikus the produce becomes obligated to be tithed.

The Gemara raises a difficulty:

If so,

if, as the answerer said, the Mishna exempts the produce from tithing even after it has been brought into the house until the blossom at its top is removed, one should wonder: Why does the Mishna use the wording

“once they are shefakses,”

which implies that they become obligated to tithe once they undergo fikus?

But according to the answerer, one is not obligated to tithe after fikus unless he brings them into his house; and according to his words,

it should have been necessary for our Mishna to say, “until they undergo fikus,”

using wording of exemption, to teach that bringing them into the house does not itself impose an obligation until they also undergo fikus, when the blossom is removed.

The difficulty thus returns against Rabbi Yannai and Rabbi Yoḥanan, who maintain that without bringing the produce into the house or courtyard, it does not become obligated through any subsequent stage of processing, whereas this Mishna says that “once they undergo fikus,” they immediately become obligated to be tithed.

The Gemara answers: Indeed, this Mishna is speaking after the produce has been brought into the house, and fikus is still necessary for it to become obligated in tithing. The reason the tanna used the wording “once they undergo fikus,” rather than saying “until they undergo fikus,” is that

if he had taught

if he had stated that the produce does not become obligated to be tithed אלא

until it undergoes fikus,

even if it had been brought into the house,

I would have thought

that “until they undergo fikus” means

until he completes their fikus,

until he finishes removing the blossoms from the tops of all the fruits, and only then do they become obligated in tithing.

Therefore,

it teaches us

the tanna, by saying

“once they undergo fikus,”

that it is not necessary to complete the fikus of all the produce, but

as soon as their fikus begins,

with each individual fruit, once he has removed the blossom from its top, it is immediately forbidden to eat it without tithing, even if he still has other fruits from which he has yet to remove the blossom.

Mar Zutra, son of Rav Naḥman, raises an objection

from what we learned in a beraita:

As it was taught:

Its threshing floor,

its collection and completion of the fruit’s processing

with regard to tithing, to render one liable for it

to lashes for eating it without tithing,

because of

the prohibition against eating

untithed produce—

it is

from

the time

when its processing is completed,

the fieldwork performed on the produce.

And what is the completion of their work,

from which point they are already obligated in ma'aser? —

The completion of bringing them in!

And Mar Zutra infers from the words of the beraita:

What, is it not

the meaning of

“bringing them in”

that it is an expression referring to gathering them into a pile—and this is

even in the field,

without bringing them into the house, but the gathering into a pile in the field itself renders them obligated in ma'aser? This is difficult for Rabbi Yannai and Rabbi Yohanan, who say that one is obligated in ma'aser only after bringing the produce into a house or courtyard.

The Gemara answers:

No,

that is not what the beraita said; rather, this is what it said:

Bringing them into the house—

this is the completion of their work,

which renders them obligated in ma'aser. This is what the beraita meant when it said “the completion of bringing them in.”

And if you wish, say: When Rabbi Yannai said

that the completion of the work on produce renders it obligated in ma'aser only after it has been brought into the house, this applies only

to olives and grapes,

since

they are not subject to a threshing floor,

as it is not customary to gather them into a pile in the field. Therefore, there is no other act that can establish their obligation in ma'aser by Torah law except bringing them into the house, for the obligation of terumot and ma'aserot from their oil and wine is by Torah law.

But wheat and barley—the “threshing floor,”

that is, a pile,

is as though it is explicitly written with regard to them,

to render them obligated in ma'aser, since it is customary to gather them into a pile in the field.

Similarly, cucumbers and gourds become obligated immediately when they are mifakses [when the flower at their top is removed] in the field, without bringing them into the house, since they too are customarily gathered into a pile in the field, and this is considered the completion of their work.

Now that the Gemara has explained what constitutes the completion of the work with regard to the obligation of ma'aserot, it returns to explain the halakha concerning a laborer’s eating:

We have found

that the verse establishes that an

individual

who is working

on produce attached

to the ground has the right to eat, as it is stated: “When you enter your fellow’s standing grain, and you pluck.” And standing grain is attached to the ground.

And

likewise, with regard to an

ox,

we find in the verse that it eats

detached produce

while working with it, as it is stated: “You shall not muzzle an ox during its threshing.” Threshing is performed on grain after it has already been harvested.

But

a person,

a laborer who works

with detached produce—where do we derive this?

From where is it established that he has the right to eat from it while working, and what is the source for the statement of the Mishna that a person eats detached produce until its work is completed?

The Gemara answers: We derive this by means of a

kal va-chomer from an ox:

And if an ox,

which is the less stringent case—and what is its leniency?

It does not eat attached produce,

as the Torah did not explicitly state that an ox working with attached produce may not be prevented from eating; rather, it stated this only with regard to detached produce [during threshing]—nevertheless, it

eats detached produce,

for the Torah stated that it is prohibited to prevent it from eating when it works with detached produce, as it is stated: “You shall not muzzle an ox during its threshing.”

A person,

with regard to whom the Torah was more stringent than with regard to an ox, since it specified

that

he

eats attached produce, is it not logical that he

should

eat

also

detached produce!

For this is a kal va-chomer: the status of a person should certainly not be inferior to that of an ox. And since an ox eats when working with detached produce, a laborer working with detached produce likewise eats.

The Gemara rejects this:

What is distinctive about an ox?

The Torah was more stringent with regard to it than with regard to a human laborer,

as you are commanded concerning its muzzling,

for the Torah warned, through a prohibition, not to prevent it from eating while working, as it is stated: “You shall not muzzle an ox during its threshing.”

Can you say the same with regard to a person, concerning whose muzzling you are not commanded?

For there is neither a prohibition nor a warning against the owner of the field preventing the laborer from eating from the produce of his work while he is working with it.

If so, we have here a stringency that the Torah applied to an ox more than to a laborer. Therefore, with regard to eating detached produce as well, it is possible that this is a special stringency applying to an ox, and it cannot be derived from it with regard to a laborer.

But now the Gemara argues against this rejection, saying that even the stringency of the prohibition “You shall not muzzle” [which we said is an additional stringency applying to an ox over a person] can be derived by means of a kal va-chomer, so that it should apply to a person as well.

Accordingly, a person would always be the more stringent case. It would again be possible to derive from an ox’s eating detached produce that a person [who is more stringent than it] eats detached produce as well, and certainly has the right to eat even while working with detached produce:

And a person shall be one concerning whose muzzling you are commanded,

meaning that the owner who hired him as his laborer is warned

concerning his muzzling,

not to prevent him from eating,

by means of a kal va-chomer from an ox:

And if an ox,

which is the less stringent case—and what is its leniency?

You are not commanded to sustain it,

as the Torah did not obligate one to concern himself with preserving its life—nevertheless,

you are commanded concerning its muzzling

while it is working, so as not to cause it distress or muzzle it.

A person,

who is more stringent than an ox,

concerning whom you are commanded to sustain him,

to take care to save his life, as it is stated: “And your brother shall live with you,”

is it not logical [that this is all the more so]

—all the more so—

that you are commanded concerning his muzzling

through the prohibition “You shall not muzzle,” so as not to cause him distress in his work?

But the Gemara rejects this argument, for

the verse says: “And you shall eat [you, the laborer engaged in the work of the owner of the field] the grapes

“And you shall eat [you, the laborer working on the landowner’s property] grapes

according to your desire”—

according to the desire of the laborer!

The verse teaches that the laborer’s eating is like the eating of the owner of the field or vineyard.

Just as

the desire of the owner,

if you muzzled him,

meaning that he prevented himself from eating,

he is exempt.

For the prohibition “You shall not muzzle” does not apply when a person muzzles himself,

so too, a laborer, if you muzzled him, is exempt

from the prohibition “You shall not muzzle.”

If so, once again we find that an ox is more stringent than a person with regard to the prohibition against muzzling. Therefore, it is impossible to derive by means of a kal va-chomer that the laws of the ox apply to a person. If so, it is still difficult:

Rather, a person,

a laborer who eats

detached produce—where do we derive this?

The Gemara answers:

The verse says “standing grain” and “standing grain” twice.

It is stated in the verse: “When you enter

the standing grain

of your fellow, and you pluck ears with your hand,” in order to eat.

And the verse continues: “And you shall not wield a sickle over

the standing grain

of your fellow.” For the sake of your eating, you may not wield a sickle to harvest and eat; rather, you must pluck with your hand and eat.

And why did the Torah need to repeat and state twice that the laborer eats?

If it is not needed [if the repetition does not come to teach us]

—if the repetition does not come to teach us—

about a person working with attached produce,

since it was already stated explicitly: “When you enter the standing grain of your fellow, and you pluck ears,” in order to eat,

apply it [derive from it]

—derive from it—

to a person working with detached produce.

Rabbi Ami said: A person working with detached produce does not require a verse

specifically to teach us that he eats. Rather, we learn this from the verses concerning a laborer’s eating:

It is written: “When you enter your fellow’s vineyard,”

and the Torah leaves unspecified what kind of entry and work he is undertaking.

Are we not dealing with a case where he was hired to carry,

the grapes,

and the Merciful One said: Let him eat!

The work of carrying the grapes is performed with detached produce, and nevertheless it is stated with regard to this case that a laborer eats.

The Gemara now analyzes:

With regard to an ox working with attached produce, from where do we derive it?

From where is it established that it is prohibited to muzzle it?

The Gemara explains:

A kal va-chomer from a person.

And if a person [a laborer], with regard to whom the Torah was lenient,

—a laborer—with whom the Torah was lenient

in that he does not eat detached produce,

for the Torah did not explicitly state that he must be allowed to eat detached produce, nevertheless he

eats attached produce,

as the Torah obligated the owner to allow him to eat when he is working with attached produce—

an ox,

with regard to which the Torah was stringent,

in that it eats detached produce,

for the Torah specified that when it works with detached produce it may not be muzzled, as it is stated: “You shall not muzzle an ox during its threshing,” and threshing is performed with detached produce—

is it not logical that it eats attached produce!

Certainly, an ox should not be less stringent than a person; and if a laborer eats when working with attached produce, certainly an ox does so as well.

But the Gemara rejects this, since we find with regard to other laws that the Torah was more stringent with regard to a person than with regard to an ox. It is possible that with regard to eating attached produce as well, a person is more stringent than an ox:

What is distinctive about a person? You are commanded to sustain him. Can you say the same with regard to an ox, concerning which you are not commanded to sustain it?

But the Gemara challenges this rejection: From where do you know that there is no mitzva to concern oneself with preserving the life of an ox? After all, even with regard to the obligation to concern oneself with preserving the life of an ox, it can be derived by means of a kal va-chomer:

And an ox shall be one concerning whose life you are commanded to sustain it, by means of a kal va-chomer:

And if a person,

which is the less stringent case—and what is its leniency?

You are not commanded concerning his muzzling

through the prohibition “You shall not muzzle,” and nevertheless

you are commanded to sustain him.

An ox,

whose law is more stringent,

concerning whose muzzling you are commanded

through the prohibition “You shall not muzzle,”

is it not logical that you are commanded to sustain it?

The Gemara answers:

The verse says

in the laws concerning saving life:

“And your brother shall live with you.”

Only the life of

your brother

are you commanded to save,

but not

the life of an

ox!

If so, since a person is more stringent in his law than an ox with regard to sustaining him, it is impossible to derive from a laborer’s eating attached produce that an ox does so as well.

Rather, with regard to an ox working with attached produce, from where do we derive it?

The Gemara answers:

The verse says “your fellow” and “your fellow” twice.

It is stated: “When you enter the standing grain of

your fellow,

and you pluck ears with your hand, and you shall not wield a sickle over the standing grain of

your fellow.”

The Torah did not need to emphasize a second time that this refers to “your fellow,” meaning the laborer who enters another’s vineyard. Rather, from this superfluous emphasis we learn an additional right to eat:

If it is not needed [there is no need to teach us]

—there is no need to teach us—

for the law of

the law of

a person working with attached produce,

since we already learned from the beginning of the verse that he eats,

apply it [derive from it]

—derive from it—

to an ox

working with attached produce,

so that it eats.

Ravina said: Neither a person working with detached produce nor an ox working with attached produce requires verses.

Although with regard to a person the verse explicitly mentions only attached produce, and with regard to an ox it explicitly mentions only detached produce,

there is no need for a special derivation to include a person working with detached produce and an ox working with attached produce, since

it is written: “You shall not muzzle an ox during its threshing.”

At first glance this is difficult: For even after the emphasis of “You shall not muzzle an ox,”