Elu Metziot shiur #7, 22a

  • Rav Joshua Amaru

YESHIVAT HAR ETZION
ISRAEL KOSCHITZKY VIRTUAL BEIT MIDRASH (VBM)


Introduction to the Study of Talmud
By Rav Josh Amaru

Elu Metziot shiur #7,  22a.

Today's shiur includes the vocabulary list for the shiur itself. If you wish to consult the full cumulative vocabulary list, it is found at
http://www.vbm-torah.org/talmud2/vocab.htm

As usual, the citations to the text of the gemara are linked to the online scan of the daf, for those who do not have an open gemara before them.  The gemara can be found on-line at
http://www.e-daf.com/dafprint.asp?mesechta=22&daf=%2022a

Key words and phrases are marked in blue, and their translation/explanation can be seen by placing the cursor over them.  Other vocabulary words are marked in red and can be found on the vocabulary list at the end of the shiur.  Particularly important vocabulary words will have a link to the vocabulary list. 

Summary of last shiur:

    We continued our attempt to resolve the makhloket between Rava and Abaye about yeush she-lo mi-da'at, once again inconclusively.  In the process, we encountered special circumstances under which we evaluated the presence of yeush differently.  Don't worry, the resolution is near, though it still will not come this week.

    In this week's shiur, we will continue the discussion of yeush she-lo mi-da'at and this will lead us further afield than last time.  The gemara's next precedent involves a long baraita about the mitzva of taking teruma.  Before we learn it, a few words of introduction:

    The mitzva of teruma has two parts:  the separation of the teruma from the rest of the produce, which is called hafrasha הפרשה, and subsequently, giving it to a kohen.  Teruma has a certain level of holiness and thus is permitted exclusively to kohanim (priests) and must be eaten while the kohen is in a state of ritual purity (tahor טהור).  Since separating the teruma involves a change in the legal status of the produce, it cannot be accomplished against the will of the owner, following the general rule that one cannot change the legal status of another's property without permission.  The attempt to take teruma against the will of the owner would be merely the physical separation of the produce into two piles, with no halakhic significance. 

    Now open to daf 22a and learn from "Ta shema:  Keitzad amru תא שמע: כיצד אמרו" until "ve-im lav, ein terumato teruma ואם לאו, אין תרומתו תרומה", lines 1-6 in the schematic analysis.  Try to separate out the text of the baraita from the surrounding gemara.  Note that this baraita is unusually elaborate in its exposition. 

    As you may have noticed from the schematic analysis, the baraita ends with the words "liktu ha-ba'alim terumato teruma ליקטו הבעלים תרומתו תרומה."  The baraita can be divided into two sections.  In the first section, we are taught about the circumstances in which one can effectively take teruma for someone else despite the fact that the owner of the produce is unaware of the action taken.  It appears to depend on the owner's later response.  If the owner objects to his neighbor's unilateral action, then the separation of teruma was invalid.  If, however, the owner does not object, then it was valid.

    The second part of the baraita delineates how we can evaluate the owner's response.  If the owner merely gathered more produce and added to the teruma, then we understand that he assents to the neighbor's action and the teruma is valid.  More interestingly, what happens when the owner, upon discovering his neighbor's actions, tells him:  "Why did you not take from the better [quality produce]? This response can be interpreted in two ways.  If there in fact is better quality produce, we take the owner's statement at face value.  He accepts his neighbor's action and tells him that he could have done even more.  However, if there is no better quality produce, then the owner's response must be interpreted as sarcasm:  he is expressing his disapproval - how could you have taken my best quality produce and made it teruma!?  By criticizing the teruma taker, we can see that the owner does not confirm his actions and thus they are invalid.

    What does all this have to do with yeush she-lo mi-da'at?  The gemara points out that if one holds that the future cannot inform the present; i.e. that future yeush is irrelevant to an object found beforehand, then the produce owner's assent to his neighbor's teruma should also not work!  If we say that yeush she-lo mi-da'at is invalid, how can we validate the neighbor's teruma taking without the owner's knowledge, based on his future assent?  

    Let me emphasize that this comparison is not so far-fetched as it may appear at first glance.  Both yeush and teruma are means in which the ownership over property is transferred from one person to another.  Yeush allows a lost object to become the property of the finder and taking teruma makes the portion set aside the property of the priests.  According to Abaye, property cannot change hands through a future yeush - the yeush must precede the change of ownership.  Likewise the ownership of the produce should not be changeable without the owner's knowledge, even if he will agree to such a move later on.

    It is Rava who comes to Abaye's aid this time.  Rava explains that the baraita about teruma is not talking about a stranger who unilaterally takes teruma from someone else's produce.  The baraita refers to a case where the teruma taker was previously appointed the owner's shaliach שליח (agent) to take teruma.  Given this reading of the baraita, the analogy to yeush she-lo mi-da'at falls away.  The ability of the shaliach to take teruma is not a function of the owner's future consent but is explicitly granted to him by the owner initially.  We will return to the role of the owner's consent in teruma shortly; but in any event, it depends upon a pre-existing relationship between the owner and the teruma taker, and is thus not analogous to the case of lost objects. 

    The gemara confirms Rava's interpretation.  One cannot take teruma from someone else's produce without previously having been appointed a shaliach?  The Rabbis derived this from the redundant word "gam גם" in Bemidbar 18:28.

It is notoriously difficult to explain Midrash Halakha, Rabbinic derivations of law from Scripture, but I will attempt to briefly elaborate on this case of agency and teruma.  The Torah discusses the rights and duties of the priests in Bemidbar 18.  Close to the end of the chapter, in its discussion of terumat Ma'aser, the tithe of the tithe (=1/100) that the Levites must give to the priests, the Torah adds what seems to be a superfluous verse: 

 "So you also shall set apart a gift unto the Lord of all your tithes, which you receive of the children of Israel..."

.כÌÅן תÌÈרÄימוÌ גÇם אÇתÌÆם תÌÀרוÌמÇת ה' מÄכÌל מÇעÀשÒÀרתÅיכÆם אÂשÑÆר תÌÄקÀחוÌ מÅאÅת בÌÀנÅי יÄשÒÀרÈאÅל וגו

From the fact that the verse adds the word "gam גם ", "also" the Rabbis understood that there must be an additional person who may take teruma.  That additional person is the shaliach, the agent.  The Rabbis understood this verse as the source for the notion of agency in general:  one can appoint a shaliach, an agent to perform certain ritual or legal tasks in one's name.  When the shaliach performs the task, the result is attributed to the sender.  Thus an agent who has been appointed to do so can buy and sell property, give a writ of divorce and, of course, take teruma.  Our gemara concludes that a shaliach can be empowered to perform a task that involves the da'at דעת (deliberate intention) of the sender only if he has been explicitly appointed.  One cannot become a shaliach  unilaterally. 

  From that verse the Rabbis learned that not only the owner of the produce may take teruma but also his agent.  However, since taking teruma must be done intentionally, that intentionality must be transferred to the shaliach - he must be assigned the task by the owner and he cannot take it upon himself without the owner's knowledge.  Therefore, we must conclude that the baraita is not about unilateral teruma taking but about a shaliach taking teruma for the owner of the produce.

    The gemara then proceeds to explain the baraita according to this idea that the teruma taker must be a pre-appointed shaliach.  This is a digression and has nothing to do with the argument about yeush she-lo mi-da'at, but merely following up on our new understanding of the baraita:  

    The case, then, is the following:  The owner of the field appointed someone as his shaliach and told him to take teruma without specifying which fruit should be separated as teruma.  The shaliach proceeded to take teruma from the best quality produce though ordinarily the owner would take from only middling quality.  When the owner discovered what happened, he told the shaliach:  you should have taken from better quality.  If there is better quality produce, then the shaliach's teruma is valid.  If there is no better quality, then the teruma is invalid.  

    Essentially, the baraita, under this interpretation, is about an agent who has accomplished his appointed task in an unusual way (i.e. taking teruma from top quality rather than middling quality).  Under such circumstances, we wait for clarification from the owner. When there is even better quality left, we understand that the owner does not mind.  By his comment that the shaliach should have taken from the best, the owner indicates that he was initially willing to give good rather than middling quality.  However, if the owner's remark is sarcastic, we understand that he never intended to give from the best and therefore the shaliach has exceeded his authority and his action is nullified.   

    In the context of our evaluation of the owner's intentions vis-a-vis his shaliach, the gemara next presents to us a story about several famous Amoraim which involves a similar case.  Learn the next section of the gemara, from "Ameimar ve-rav Ashi... אמימר ורב אשי" until "mi-shum kesifuta hu de-amar hakhi משום כסיפותא הוא דאמר הכי,"  lines 7-10 in the schematic analysis.

    The story goes as follows:  Ameimar, Mar Zutra. and R. Ashi, when visiting Mari bar Isak's orchard, were offered fruit by Mari's tenant.  Ameimar and Rav Ashi ate, but Mar Zutra would not.  The gemara does not tell us why not, but Rashi, s.v. "lo akhal" לא אכל, (on the 12th line from the bottom of the Rashi column on the gemara page) explains that he was concerned that the tenant did not have permission from Mari, and he did not wish to partake of stolen fruit.  When Mari bar Isak arrived he said to his tenant:  "Why didn't you give them from these better ones?" Even then, Mar Zutra would not eat, and his colleagues asked him why not?  After all, our baraita teaches us that the statement "why not the better ones?", when there actually are better ones,  is evidence of the owner's affirmation of the shaliach's actions!  Here too, it should at least serve to indicate that Mari bar Isak does not object to the tenant giving the guests fruit. 

    Mar Zutra explained his position by quoting Rava:  The statement "why not the better ones?" is an indicator of acceptance on the part of the owner only in the case of teruma.  Because teruma is a mitzva, the owner of the produce has an interest that it be performed, and hence we can confidently interpret his statement as evidence of his agreement with the shaliach's actions.  However, with regard to a general willingness to part with one's property, we cannot assume that when the owner says "why not the better ones" he is really indicating willingness.  It is just as likely that he is embarrassed by his stinginess and is trying to camouflage it.  

    What are we to make of this story?  Some of the commentators have tried to understand the differing positions of the Amoraim in this story.  If Mar Zutra is right, how was it that R. Ashi and Ameimar ate the refreshments offered by the tenant even before Mari bar Isak arrived?  One of the interpretations offered is to base their differences on the question of yeush she-lo mi-da'at:  Ameimar and Rav Ashi believe that yeush she-lo mi-da'at is valid, and therefore they eat, trusting that Mari bar Isak will agree when he arrives and discovers what happened.  Mar Zutra holds like Abaye, that there is no such thing as yeush she-lo mi-da'at, and therefore Mari bar Isak's future agreement is irrelevant.  These same Amoraim disagree in the second half of the story as to how explicit does the owner need to be in showing his agreement. 

    In my opinion the gemara does not relate this story primarily to make a halakhic point.  The question of what sort of discretion is granted to the tenant in disposing of the field's produce is dealt with in other places (see Bava Kama 119).  Even the halakhic point asserted at the end of the story, that "why not the better ones?" is indicative of agreement only regarding teruma, is also of only minor importance.  The point of this story is a lesson in values.  Of course it was legitimate for Ameimar and Rav Ashi to eat the refreshments offered: Mari bar Isak was known as someone who honored scholars and he certainly would be pleased with his tenant's graciousness.  Despite this, it is Mar Zutra's opinion that is vindicated. We can see here the immense importance which Chazal (the Talmudic Rabbis) attached to the respect for another person's property.  Even when we are talking about such a small amount, one is not permitted to take someone else's property without permission.  So long as Mari bar Isak does not explicitly offer him some fruit, Mar Zutra will not eat.  This message is appropriate to the discussion of the laws of lost objects.  As opposed to the way many people think, and even more people behave, the halakha's default position with lost objects is that the finder may not keep them.  Only when yeush is certain does the finder have any standing.  Mar Zutra, with his high moral standards, carries this same logic through to its logical conclusion: one should not rely on someone's hospitality when there is any reason to suspect that it is not wholehearted.  

  Mar Zutra's stance calls to mind the Rambam's (Maimonides's)statement in the Laws of Repentence (4:1):

    ...things that one who does them is unlikely to repent, since they are light matters in the eyes of most people and he imagines that it is not a sin:  One who partakes of his fellow's meal that is not enough for the owner [to satisfy his hunger].  This is "the dust of theft" and one who does so imagines that he has done nothing wrong, saying to himself "I only took with permission."

    Technically, to avoid theft, all one needs is permission.  However, we do not seek to fulfill merely the letter of the law, but also its spirit.  Imposing upon someone, or acting cavalierly about another's property, may not, strictly speaking, be defined as theft.  Mar Zutra, in his actions, teaches us that avoiding theft is not enough.  We are obliged not only to avoid sin but also to pursue holiness in our dealing with others. 

 

             

Schematic Analysis #7

Page 22a from "Ta shema:  Keitzad amru תא שמע: כיצד אמרו" until "mishum kesufuta hu de-amar hakhi..." משום כסיפותא הוא דאמר הכי (second to last line).

Translation of gemara Schematic Analysis Text of gemara 22a

1.  Ta Shema: Under what circumstances did they say that taking teruma without the knowledge [of the owner] the offering is valid?       When one goes into a neighbor's field, collects [the produce] and sets apart the teruma without permission, if [the owner] regards it gezel (robbery), it is not teruma.  If not (i.e. the owner does not object), it is teruma.

And how can one tell whether he considers it as robbery or not? If the owner, upon arriving and finding the person  says to him: You should have gone [and taken] the better kind [of the produce for teruma]:   the teruma is valid if there is a better [quality produce] to be found [in the field]. But if not, it is not valid. When the owner collected [more of the produce] and added it [to the original teruma] it is valid in any case. 

Prooftext supporting one side of the makhloket.

א.  תא שמע: כיצד אמרו התורם שלא מדעת תרומתו תרומה? הרי שירד לתוך שדה חבירו וליקט ותרם שלא ברשות, אם חושש משום גזל - אין תרומתו תרומה, ואם לאו - תרומתו תרומה.

 ומנין הוא יודע אם חושש משום גזל ואם לאו? הרי שבא בעל הבית ומצאו, ואמר לו כלך אצל יפות, אם נמצאו יפות מהן - תרומתו תרומה, ואם לאו - אין תרומתו תרומה. ליקטו הבעלים והוסיפו עליהן - בין כך ובין כך תרומתו תרומה.י

2.  Thus when their is better quality produce to the teruma is valid.  Why!? At the time when the teruma was set apart [the owner] did not know [that someone had set it apart]!? Explanation how the prooftext supports one position and is difficult for the other.

ב.  וכי נמצאו יפות מהן תרומתו תרומה, אמאי? בעידנא דתרם הא לא הוה ידע!י

3.  Raba explained it according to Abaye: [The owner] made him his agent.

Rebuttal through re-interpretation of the prooftext.

 

ג.  תרגמה רבא אליבא דאביי: דשויה שליח

4.  This is a likely conclusion: For if you were to assume that he did not make him his agent, how could the setting aside [of the produce] make it teruma? Support for reinterpretation.

ד.   הכי נמי מסתברא , דאי סלקא דעתך דלא שוויה שליח מי הויא תרומתו תרומה?י

5.  Did not the Merciful One (i.e. in the Torah) say:  [instead of] 'atem' - 'gam atem', to include 'your agent':  Just like you [set apart your teruma] intentionally, so must your agent [set apart your teruma] with your knowledge?

Explanation and source of the halakha in previous passage.

ה.  והא אתם גם אתם אמר רחמנא לרבות שלוחכם, מה אתם לדעתכם, אף שלוחכם - לדעתכם.י

6.  Rather, we are dealing here with a case where [the owner] made him his agent and said to him, 'Go and set apart the teruma' but did not say to him, 'Set it apart from these.' Ordinarily, an owner sets apart the teruma from the medium quality, but that other person went and set it apart from the better quality.   When the owner arrived and discovered  him , he said to him:  go and take (i.e. you should have gone and taken) from a [still] better quality.'  [In such a case the law is that] if a better kind can be found [in the field] the offering  is valid teruma, but if not, it is not valid teruma.

Elaboration of re-interpretation.

ו.  אלא הכא במאי עסקינן - כגון דשויה שליח, ואמר ליה: זיל תרום, ולא אמר ליה תרום מהני . וסתמיה דבעל הבית כי תרום - מבינונית הוא תרום, ואזל איהו ותרם מיפות. ובא בעל הבית ומצאו, ואמר ליה כלך אצל יפות, אם נמצאו יפות מהן - תרומתו תרומה, ואם לאו - אין תרומתו תרומה.י

7.  Ameimar, Mar Zutra. and R. Ashi once entered the orchard of Mari b. Isak [whereupon] his tenant farmer brought dates and pomegranates and placed in front of them: Amemar and R. Ashi ate , Mar Zutra did not eat. Story that touches on the halakha stated above.

ז.  אמימר ומר זוטרא ורב אשי אקלעו לבוסתנא דמרי בר איסק, אייתי אריסיה תמרי ורימוני ושדא קמייהו. אמימר ורב אשי אכלי, מר זוטרא לא אכיל. י

8.  Meanwhile, Mari b. Isak arrived.  He found them and said to his tenant farmer: Why did you not bring for the Rabbis from those better quality [fruit]?

Continuation of story.

ח.  אדהכי אתא מרי בר איסק, אשכחינהו, ואמר ליה לאריסיה: אמאי לא אייתית להו לרבנן מהנך שפירתא?י

9.  Whereupon Amemar and R. Ashi said to Mar Zutra: Why does the Master not eat now? Has it not been taught: 'If better ones can be found, the offering is valid teruma'?

Continuation of story in which a difficulty is raised based on the behavior of one of the characters.

ט.  אמרו ליה אמימר ורב אשי למר זוטרא: השתא אמאי לא אכיל מר? והתניא: אם נמצאו יפות מהן - תרומתו תרומה .י

10.  He answered them: Thus said Rava: [the rule involving] 'Go and take from the better quality' applies only the the matter of teruma, because it is a mitzva, and thus he is agreeable, but here, he said this only because of embarrassment.  Resolution of difficulty and refinement of the halakha stated above.

י.  אמר להו, הכי אמר רבא: לא אמרו כלך אצל יפות אלא לענין תרומה בלבד, משום דמצוה הוא, וניחא ליה. אבל הכא - משום כסיפותא הוא דאמר הכי.י

 

Selection from Rashi daf 22a

Translation

Rashi Text

Did not eat - [for fear] that they were stolen, as the owner did not know.

לא אכל - דגזל נינהו, שהבעלים לא ידעו.

 

Key Gemara Terms

a-dehakhi, meanwhile

בינתיים

אדהכי

ayti, brings

מביא

אייתי

hakhi nami mistavra, this [is][a] plausible conclusion

כך גם מסתבר

הכי נמי מסתברא

hani, these

אלה

הני

salka da'atakh you entertain the notion

עולה על דעתך

סלקא דעתך

General vocabulary

a-dehakhi, meanwhile

בינתיים

אדהכי

ayti, brings

אייתי

אייתי

ikle'u, arrived at, came upon

נקלעו, נכנסו אל

אקלעו

aris, aris[ei],  [his] tenant farmer (farmer who works the land for its owner in exchange for a percentage of the produce)

 

אריס, אריסיה

ashkechinhu, he found them

מצאו אותו

אשכחינהו

ata, came, arrived

בא

אתא

bustana, orchard

פרדס

בוסתנא

hakhi nami mistavra, this [is] also [a] reasonable [conclusion]

כך גם מסתבר

הכי נמי מסתברא

hani, these

אלה

הני

zil, go

לך

זיל

choshesh, suspects, considers

 

חושש

kaleikh, go [and take] (command)

לך

כלך

kesifuta, embarrassment

בושה

כסיפותא

salka da'atakh, you entertain the notion

עולה על דעתך

 סלקא דעתך

idna, the time, the occasion

הזמן

עידנא

kamaihu, in front of him

לפניו

קמייהו

shada, placed, cast.

זרק, הניח

שדא

shavya shaliach, made him a [legal] agent

עשאו שליח

שויה שליח

teruma, one of the gifts that must be given to the priests from agricultural produce.  The Sages decreed that the amount one must give is not fixed:  one must give at least 1/60th but that is considered to be ayin ra'ah עין רעה, miserly.  One who gives 1/50th is considered to be ayin beinonit, עין בינונית, middling, ordinary.  One who sets aside as much as 1/40th is considered to be ayin yafe עין יפה - generous.

 

תרומה