Laws Dependent Upon the Land of Israel
Based on a sicha of Harav Aharon Lichtenstein zt"l
Translated by David Strauss
Our objective in this lecture is to provide an overview of Seder Zera'im and the main topics discussed therein. There exist two frameworks for the discussion of these issues. The first framework consists of Seder Zera'im of the Mishna and Talmud Yerushalmi, whereas the second framework consists of the Rambam's Sefer Zera'im. Certain issues and topics appear in the latter, but not in the former, e.g., the laws of charity.
I. POSITIVE AND NEGATIVE COMMANDMENTS
In a certain sense, the range of topics included in Zera'im constitute a distinct realm of Halakha, but in another sense, it embraces components that parallel other realms.
In the first sense, we find positive and negative commandments. These mitzvot divide into two. There are mitzvot that include an element of active fulfillment. For example: terumot, ma'asrot, challa, bikkurim and the like. These mitzvot are conditional, i.e., one's obligation in these mitzvot is contingent upon particular circumstances. Moreover, the fulfillment of these mitzvot requires positive performance. There are other mitzvot, which also belong to the realm of Zera'im, which do not involve initiated action, but rather are fulfilled passively. These mitzvot are connected to the realm of gifts for the poor. The Torah states (Devarim 24:19-22):
When you reap your harvest in your field, and have forgotten a sheaf in the field, you shall not go back to fetch it; it shall be for the stranger, for the fatherless, and for the widow: that the Lord your God may bless you in all the work of your hands. When you beat your olive tree, you shall not go over the boughs again: it shall be for the stranger, for the fatherless, and for the widow. When you gather the grapes of your vineyard, you shall not glean it afterwards: it shall be for the stranger, for the fatherless, and for the widow. And you shall remember that you were a slave in the land of Egypt: therefore I command you to do this thing.
We are dealing here with the mitzvot of shikhecha, peret, and olalot. Regarding each of them, the Torah states that the produce is to be left for the stranger, the fatherless, and the widow. There is a negative commandment not to go back for the forgotten produce, and also a positive commandment that this produce belongs to the stranger, the fatherless, and the widow.
Regarding the mitzva of leket, the Torah states (Vayikra 19:9-10):
And when you reap the harvest of your land, you shall not wholly reap the corners of your field, neither shall you gather the gleaning of your harvest. And you shall not glean your vineyard, neither shall you gather the single grapes of your vineyard; you shall leave them for the poor and stranger: I am the Lord your God.
In this section, the positive commandment is stated more clearly. From the verses cited earlier regarding the mitzva of shikhecha, one might have understood that there is no positive commandment; the Torah merely means to describe the proprietary rights to the forgotten produce. But from the verses dealing with the mitzva of leket, it is quite clear that we are dealing here with a positive commandment. In any event, the Rambam, both in his Sefer ha-Mitzvot as well as in Hilkhot Matanot Aniyim, counts these obligations as positive precepts.
The mitzvot of leket, shikhecha and pe'a appear under the same rubric, but there is a difference between leket and shikhecha, on the one hand, and pe'a, on the other. Regarding leket and shikhecha, a person is not required to do anything, whereas pe'a involves an active setting aside of produce. This raises a question regarding the relationship between the setting aside of pe'a and the obligation to set aside terumot and ma'asrot. Are the two separations similar, in which case there exists an obligation to set aside pe'a? Or perhaps, what is required in the case of pe'a is only that a certain section of the field be defined as pe'a. In this case, there is a greater resemblance to leket and shikhecha, which do not require setting aside, because objective circumstances determine what is leket and shikhecha. Another issue which arises, and which appears to be related to the previous point, is whether it is possible to obtain a release regarding the setting aside of a particular section of the field as pe'a in the same way that it is possible to obtain a release from the setting aside of particular produce as terumot and ma'asrot.
Alongside the positive precepts, there are also negative commandments. These prohibitions divide into two types:
First, there are prohibitions that relate to certain agricultural activities but not to the produce in and of itself. A striking example is the prohibition of kil'ayim. The prohibition of kil'ayim applies even when there is no yield.
Second, there are prohibitions that relate to the produce itself. Regarding terumot and ma'asrot there are no prohibitions relating to the act of setting aside the various gifts. The prohibitions relate to eating - what may and what may not be done with the produce before the separation, (tevel), and the actual fruits that are designated as teruma or ma'aser.
II. THE CONNECTION BETWEEN THE OBLIGATION OF SETTING ASIDE THE VARIOUS GIFTS AND THE PROHIBITION OF EATING.
If we examine Rambam's Mishne Torah, we find that Zera'im-related issues appear, of course, in Sefer Zera'im, but there are additional halakhot found in Hilkhot Ma'akhalot Assurot in Sefer Kedusha. These laws relate to the prohibitions of eating related to zera'im: tevel, chadash, kil'ayim of a certain sort, and orla. Even though Rambam discusses all these areas in the same chapter, it is important to note that there are differences between the various prohibitions, both with respect to their severity, and with respect to the relationship between the prohibitions and the obligations falling upon the owners of the produce.
On this point there is a clear difference between chadash, orla, and kil'ayim, on the one hand, and tevel, on the other. Regarding orla, it would seem that the prohibition is not connected to the status of the owner, for the produce itself constitutes an object [cheftza] of forbidden food. This point finds expression in the discussion whether the prohibition of orla applies to the produce of a gentile. According to the simplest understanding, just like a pig belonging to a gentile is forbidden, so too orla belonging to him should be forbidden. In any event, the Rishonim discuss this question at great length. This question also arises with regard to chadash, for it too would appear to fall into the category of "forbidden foods." The prevalent opinion is that the prohibition of chadash applies to the produce of gentiles, but an opinion is cited in the Bayit Chadash (Bach) that disagrees. Tosafot discuss the issue with respect to kil'ayim, but the simple understanding is that the prohibition applies even to the produce of a gentile.
Whatever we have said thus far stands in sharp contrast to the situation regarding tevel. Regarding tevel, both the prohibition and the obligation pass through the owner, and as a result, the tevel becomes forbidden to the entire world. The prohibition stems from the obligation falling upon the owner; therefore, in the absence of an owner, there is no obligation to set aside terumot and ma'asrot, and as a result, there is no prohibition of tevel.
There are certain areas in which a question arises regarding the connection presented here between the obligation falling upon the owner and the prohibition. The most striking example relates to the question whether the sanctity of shevi'it applies to the produce of a non-Jew. If we say that the Torah imposed holiness upon the produce, there is holiness in the produce of a non-Jew. But if we say that the holiness is a function of Jewish ownership of the produce, and the owner is obligated to renounce ownership of the produce, then the holiness should not apply in the case of produce belonging to a non-Jew.
III. THE MONETARY ASPECT OF MITZVOT DEPENDENT UPON THE LAND OF ISRAEL
Alongside all that we have said thus far, there is also a monetary aspect to Seder Zera'im, which expresses itself in a number of ways: There is a mitzva to set aside and transfer ownership of produce to another person. Ma'aser ani must be given to a poor person. If ma'aser ani is not set aside, the produce is forbidden as tevel; there is a discussion regarding the severity of this prohibition, whether it is an ordinary negative precept, or perhaps a graver prohibition, just like regular tevel.
It should be noted that this not the situation with all the mitzvot dependent upon the land. Regarding peret, olalot, and the like, there is no obligation of giving; on the other hand, there is an obligation to allow other people to take of the field's produce.
There are monetary ramifications regarding terumot and ma'asrot, but they are not all alike. In all cases there is a mitzva to give, but still there may be a difference. The Ramban in Sefer ha-Mitzvot (root 2) argues with the Rambam whether setting aside and giving terumot and the like constitute two mitzvot or one. The Ramban distinguishes between two types of giving. It is possible to argue that in the case of challa, the focus of the mitzva lies in the giving, and the setting aside merely allows for the giving, whereas in the rest of the mitzvot, there are two separate mitzvot, setting aside and giving. In any case, the common denominator is that there must be a transfer of ownership.
Another monetary aspect of these mitzvot is that of tovat hana'a. Regarding terumot, ma'asrot, and the rest of the mitzvot, with the exception of ma'aser sheni, the person who sets aside the produce may choose to whom he wishes to give the produce. Chazal refer to this right as "tovat hana'a." in several places, the Gemara discusses whether this right has monetary value. For example, the Mishna in Kiddushin 58a states that a man may betroth a woman with terumot and ma'asrot. Regarding this Mishna, the Gemara states:
Ulla said: Tovat hana'a is not considered as having monetary value.
It is clear to the Gemara that the kiddushin under discussion can only work through tovat hana'a. Thus, the Gemara comes to discuss whether or not tovat hana'a is considered to have monetary value.
Even if we say that indeed tovat hana'a has monetary value, the monetary right may be understood in one of two ways: We may say that the person is owner only with respect to the tovat hana'a, or else we may say that he is in fact owner of the entire teruma, but he is obligated to give it away, and that which is left to him is merely the tovat hana'a. This question has a practical ramification regarding a question raised by the Ritva concerning a person who steals teruma: on what sum is he liable to pay double.
All that we have said thus far relates to ma'aser rishon, ma'aser ani, and teruma. What is the monetary status of ma'aser sheni? The issue is debated in Kiddushin whether ma'aser sheni is regarded as belonging to God or belonging to man.
Regarding ma'aser rishon, the Gemara records a dispute whether or not it has sanctity. Rabbi Meir maintains that it has sanctity, whereas the law has been decided in favor of the Sages who maintain that ma'aser rishon has no sanctity whatsoever.
IV. SANCTITY OF THE PRODUCE
Alongside all this, a question arises regarding the status of the produce, not from the perspective of the prohibition, but rather from the perspective of the sanctity that falls upon it. Ma'aser rishon, ma'aser ani and all the other gifts for the poor have no sanctity whatsoever. There is a whole category of mitzvot regarding which there are laws of sanctity, on two levels: what may be done with the produce, and what must be done with it. The first group is that of the various types of teruma: teruma gedola, terumat ma'aser, challa, and bikkurim, as the Rambam writes at the end of Hilkhot Terumot (15:20):
Teruma gedola, terumat ma'aser, challa, and bikkurim - are all called teruma. Regarding terumat ma'aser it says: "Then you shall offer up from it a gift [teruma] for the Lord" (Bamidbar 18:26); and regarding challa it says: "You shall offer up a gift [teruma] to the Lord" (Bamidbar 15:19); and it says: "You may not eat within your gates the tithe of your corn... or offering [terumat] of your hand" (Devarim 12:17), and there is nothing that requires to be brought to a [particular] place that was not specified in this verse, except for bikkurim, regarding which it says: "or offering of your hand."
All these types of terumot have sanctity (i.e. one may not defile it or destroy them and they must be consumed only by a Kohen who is tahor at the time) and there is a mitzva to eat them, but we are clearly not dealing with a single mitzva, for there are differences between them.
Another group is made up of the produce of shevi'it; in addition to the mitzva to eat of them, there is also a prohibition to do business with them.
Tevel enjoys a double identity. On the one hand, the prohibition of tevel is included among the forbidden foods, but on the other hand, part of the problem is that it is destined for separation. Therefore, there are additional prohibitions, like the prohibition to throw tevel in the garbage, the prohibition to defile it, and the like. These halakhot do not belong to the realm of forbidden foods, but to the realm of zera'im.
As for bikkurim, the situation is slightly different. While, indeed, the Torah refers to bikkurim as teruma, bikkurim has a certain unique element that is found nowhere else. Rambam mentions in two different contexts that bikkurim enjoys the status of things consecrated for the Temple. In Hilkhot Bikkurim (2:16), Rambam writes as follows:
A tree worshipped as part of idolatrous rites that was [later] nullified - one may not bring from it bikkurim, for bikkurim is like things consecrated for the Temple.
And in halakha 19, he writes:
And so it seems to me, that bikkurim that became defiled may not be used for fueling a stove as in the case of defiled teruma, because it is like things consecrated for the Temple.
Bikkurim is governed by special halakhot, because it is brought to the Temple, where the bikkurim passage is recited. On the other hand, bikkurim has a certain leniency. Regarding terumot and ma'asrot, the entire crop is affected by the obligation to set aside the various gifts, and the prohibition begins at a certain point. This is all in contrast to the gifts for the poor, which do not impose any prohibition of eating on the rest of the produce, even if the owner did not give the gifts as required. Neither does the failure to bring bikkurim cause the produce to acquire the status of tevel. Therefore, even if a person did not set aside bikkurim, the produce does not become forbidden. This point rises in Bava Batra 81a. There the Gemara states that even a person who purchases produce in the market is obligated to bring bikkurim. The Gemara raises an objection based on the verse "which you shall bring of your land" (Devarim 26:2), and answers that this comes to exclude produce that grew outside the land of Israel. Regarding this, Tosafot raises an objection (ad loc., s.v., hahu):
There is a question. Why is a special exclusion necessary? Surely it is stated at the end of the first chapter of Kiddushin that every mitzva that is dependent upon the land applies only in the land of Israel! There are those who explain that [the exclusion is necessary] because bikkurim is compared to the prohibition of mixing meat and milk... It seems to Rabbi Shimson of Sens that bikkurim is not considered a mitzva that depends on the land, because it is not similar to teruma, ma'aser and challa, for there the produce itself is obligated in [the separation of] teruma, for it is tevel and forbidden to be eaten, and therefore [those mitzvot] are considered dependent upon the land. But in the case of bikkurim, the obligation does not fall upon the produce, but upon the person...
According to the second answer, since the failure to set aside bikkurim does not cause the produce to be regarded as tevel, it is therefore not considered a mitzva that is dependent upon the land.
The question may be raised, however, whether the two answers in Tosafot disagree about an issue related to bikkurim, or about the criteria for determining that a particular mitzva is a personal obligation. In any event, there is a clear difference between terumot and ma'asrot, on the one hand, and bikkurim, on the other.
This lecture was not reviewed by HaRav Lichtenstein.