Heter Akhila (Allowance to Eat) and Din Mamon (Law of Value)

The Israel Koschitzky Virtual Beit Midrash

Gemara Sukka
Yeshivat Har Etzion

SHIUR #22: HETER AKHILA (ALLOWANCE TO EAT)
AND DIN MAMON (LAW OF VALUE)

Rav Ezra Bick

 

 

Mishna 34b, "etrog" until Gemara 35b, "… hai mani Rabbanan hi."

Ritva on the Mishna, s.v. shel orla; p. 35, s.v. ve-shel orla

Rambam, Commentary to the Mishna, Sukka 3:5

Rambam, Hilkhot Lulav 8:2

 

 

            The second Mishna on p. 34b lists the various etrogim that are disqualified for use for the mitzva, including the etrog from an ashera (a tree that had been worshipped), from an ir ha-nidachat (a city a majority of whose inhabitants had committed idolatry), of orla (fruit that grew in the first three years after a tree has been planted), and teruma teme'a (teruma [one of the priestly gifts] that had contracted ritual impurity). The Gemara on the next page explains that the first two are disqualified based on the principle of ketutei mikhtat shi'urei, i.e., the etrog lacks the minimally required measurement, because it is regarded as having already been destroyed. (The Ra'avad had a different reading, according to which these two are disqualified based on the principle of mitzva ha-ba'a be-aveira, a mitzva performed through the commission of a transgression; see Ramban and Ritva who discuss the Ra'avad's position). As for orla, the Gemara proposes two possible understandings of the disqualification, either because such an etrog lacks a heter akhila, i.e., it may not be eaten, or because it lacks din mamon, i.e., it is not regarded as possessing value. Today's shiur will be devoted primarily to a clarification of these two concepts.

 

            Rashi explains both rationales as based on the law of "lakhem" ("yours"). On the one hand, an etrog which is orla is disqualified, because it lacks the allowance to be eaten, and "the Torah said 'yours,' one that is fit for you in all the ways in which it is ordinarily enjoyed." On the other hand, something from which one is forbidden to derive benefit is regarded as having no value, "for it is not worth a peruta, because deriving pleasure from it is forbidden, and therefore it is not regarded as 'yours.'"

 

I.          DIN MAMON – THE LAW OF VALUE

 

            Let us start with the second law. According to Rashi, things from which deriving pleasure is forbidden do not fall into the category of "yours." According to the simple understanding, he means to say that something from which deriving pleasure is forbidden is not subject to possession, and therefore it is excluded from the category of "yours." A precise reading of Rashi might possibly imply that that it is not the prohibition to derive pleasure that nullifies possession, but rather the fact that it has no value, not even of a peruta. One cannot own something that has no monetary value.

 

            The Ritva (on the Mishna) writes that an etrog that is orla is not regarded as "yours" because it cannot be sold. The Ritva appears to be consistent with his own position that something from which deriving pleasure is forbidden is nevertheless subject to possession. But the very fact that a person cannot sell an etrog which is orla disqualifies it for use for the mitzva, because of a lack of "yours." In other words, even though the etrog belongs to its owner, the scriptural decree of "yours" teaches that a higher level of connection is necessary. Since his monetary control of the etrog is limited – for all agree that an owner's inability to sell something constitutes a severe impairment of his monetary control over it – it is not regarded as "yours." In support of this argument, it may be pointed out that according to the other rationale, "lakhem" teaches that the etrog must be permitted for eating, even though all agree that even if something may not be eaten it still belongs to its owner. We must say then that "lakhem" requires not only possession, but also control and the ability to use it. We can, therefore, say that according to the other rationale as well, the lack of value relates not to the issue of possession, but to the owner's ability to use it. According to this position, the deficiency in control must relate to the monetary realm, and therefore according to the Ritva the critical point is the inability to sell the etrog. Whereas according to the other opinion, a deficiency in use suffices – i.e., if it is not "fit for you in all the ways in which it is ordinarily enjoyed."

           

It might be argued that the derivation is not from the word "lakhem," as a law in the cheftza (object) of the etrog, but as a law in the action, "and you shall take for yourselves." "Taking for yourself" describes an act of control, of bringing something into your domain in order to allow use. According to both opinions, then, even if technically speaking there is possession, taking something that is forbidden to be eaten or that is limited with respect to monetary control is not regarded as "taking for yourself."

 

            This point is proven by the continuation of the Gemara. According to the Gemara's conclusion, all agree that the etrog must be permitted for eating, and they only disagree about whether it must also have monetary value. The practical ramification relates to second-tithe in Jerusalem, according to Rabbi Meir who maintains that second-tithe is regarded as belonging to hekdesh (the Temple treasury). Here we are dealing with something that may be eaten, but has for the person no monetary value, since it belongs to hekdesh. In such a case, the two opinions disagree.

 

There is a point that requires further clarification, for all agree that a borrowed etrog is disqualified on the first day of Sukkot because of the law of "lakhem," as we learned in the first Mishna in the chapter. How then is it possible to disagree and rule, according to Rabbi Meir, that second-tithe is regarded monetarily as belonging to hekdesh, but nevertheless an etrog that is second-tithe is fit for the mitzva? There is an even greater difficulty according to the Rambam, who rules in accordance with Rabbi Meir, but nevertheless he rules that ma'aser sheni is fit for the mitzva, both in the case of etrog and in the case of matza (see Hilkhot Bikkurim, chap. 6, and Kesef Mishne, ad loc.). We are forced to conclude that while monetarily, according to Rabbi Meir, second-tithe does not "belong" to its owner (and therefore, for example, he cannot betroth a woman with the second-tithe), nevertheless, he enjoys a right of use and a certain control over it, since it is his to eat. (For second-tithe is meant to be eaten by its owner, and not by others). Therefore, according to the first opinion that the critical issue is the allowance to eat, it is regarded as "yours" in the sense of control. Taking the etrog is regarded as "taking for yourself," because he has the right to use it and derive benefit from it. The second opinion in the Gemara measures "yours" according to the standard of monetary control, and therefore second-tithe according to Rabbi Meir is not "yours," but according to the first opinion, the very allowance to eat makes it "yours." This is stated explicitly by Rashi, p. 35b, s.v. o dilma: "Since it is permitted to be eaten, even though it does not have the law of money, it is called 'yours.'" In other words, the case of second-tithe is the very opposite of the case of a forbidden food. In the first case there is a monetary limitation without a limitation of use, whereas in the second case, this is reversed. According to both opinions, we are concerned with these limitations, rather than technical possession. And thus we understand the practical difference suggested by the Gemara.

 

            The Ritva himself rejects Rashi's understanding for two reasons: 1) He argues that a rationale based on "yours" should only disqualify the etrog on the first day, and he understands that the Mishna lists those factors that disqualify an etrog all seven days. 2) What is relevant to our discussion – since by law the etrog belongs to him, why should it be disqualified because its owner cannot sell it? In other words, the Ritva does not accept our understanding of the meaning of "yours." The Ritva explains that an etrog that is orla is disqualified because of ketutei mikhtat shi'urei, i.e., such an etrog lacks the minimum measurement, because it is regarded as having already been destroyed. The lack of an allowance to eat means that deriving pleasure from it is forbidden, and thus it stands to be burned. And so too the absence of a law of money means that deriving pleasure from it is forbidden.

 

            The Ritva adduces proof against the Ra'avad from second-tithe according to the Sages, that it is regarded as "yours" "even though it is does not have the law of money." This is quite astonishing – for according to the Sages, second-tithe is regarded monetarily as belonging to its owner, and for that reason it certainly has a din mamon. But according to what we have said above, his words are entirely clear. The Ritva agrees with the idea that we used to explain the position of the Ra'avad, that the idea of din mamon relates to monetary limitation of control. It is self-evident to the Ritva that things from which deriving pleasure is forbidden belong to a person, even if his ability to use them is limited, and he cannot sell it. But the Ra'avad maintains that the very limitation on selling it removes it from the category of what is "yours." On this point, the Ritva raises an objection from second-tithe according to the Sages, which is regarded as belonging to its owner, even though he cannot sell it because he is obligated to eat it in Jerusalem. This proves that the din mamon relates to actual ownership rather than monetary capabilities.

 

            Based on this understanding of din mamon, we can now understand the various opinions among the Rishonim concerning tevel (produce that has not yet been tithed).

 

            Rashi writes that according to the opinion that an etrog that is orla is unfit for the mitzva because it lacks din mamon, an etrog that is tevel is fit for the mitzva (only that according to the final law, all agree that heter akhila is required). Tevel is forbidden to be eaten, but deriving pleasure from it is permitted, and thus there is no reason that it should lack din mamon. The Tosafot (s.v. atya) infer from the dispute between Bet Shammai and Bet Hillel regarding demai (produce purchased from a person who may not have separated the various tithes as required by law) on the next page that all agree that an etrog that is tevel is disqualified for the mitzva. They understand that this is because it lacks din mamon for another reason – because it contains the mamon of a kohen and a Levite, and is therefore regarded as an etrog that is jointly-owned by partners. Their wording implies that tevel contains a portion that monetarily belongs to the kohen and Levite. This is difficult, for monetarily speaking the kohen has no part in the tevel, since the teruma has not yet been set aside. According to what we have explained above, we can explain that din mamon is not only ownership, but monetary control. In the case of tevel, since a person is obligated to set aside teruma and give it to the kohen, it turns out that he does not enjoy full control, and that monetarily he is subject to limitations – similar to a mortgage or lien – and therefore taking an etrog that is tevel is not regarded as "taking for yourselves."

 

            The novelty here is that I might have said that the obligation to set aside teruma and give it to a kohen is merely a mitzva, but the owner still retains full monetary control. And the Tosafot teach us that this is similar to a monetary lien. (A question arises according to the Tosafot whether one is permitted to leave tevel in the state of tevel – not to set aside teruma and not to give it to a kohen; this, however, is not the forum to discuss the matter at further length.)

 

            The Ramban disagrees and says that an etrog that is tevel is fit for the mitzva, since it has a din mamon.

 

II.        HETER AKHILA

 

            As we have already seen, Rashi explains that the law of heter akhila is also based on the requirement of "yours," which, according to this opinion, is understood not in the monetary sense, but in the sense of use. In contrast, the Rambam, in his commentary to the Mishna, explains that heter akhila is a law in the definition of fruit. In other words, an etrog is governed by a new law, namely, that in order for it to be fit for the mitzva, it must be defined as a fruit. This disqualification is unique to an etrog, and clearly does not apply to the lulav, the hadas, or the arava. It would appear, however, that even according to Rashi, I would not say that a prohibition of eating that could apply to a lulav, would disqualify it on the grounds that it is not "yours." "Yours," according to this opinion, necessitates that it be "fit for you in all the ways in which it is ordinarily enjoyed." And it is reasonable to assume that only in the case of a fruit, i.e., something that is generally eaten, do I say that eating is one of "the ways in which it is ordinarily enjoyed."

 

            In any case, there is a clear practical ramification between the views of Rashi and the Rambam regarding the last six days of the holiday of Sukkot. The law of "yours" applies only on the first day, but if there is a law in the definition of the cheftza of the etrog that it must be a fruit, that law should apply all seven days of Sukkot.

 

            (As mentioned above, the Ritva has a different understanding of the argument that an etrog of orla is unfit for the mitzva because it lacks a "heter akhila." According to him this means that the etrog is governed by a prohibition to derive benefit from it, and the disqualification is based on the law of ketutei mikhtat shi'urei.)

 

            Rashi writes (35b, s.v. mai ta'amaihu) that tevel lacks heter akhila. He seems to mean that even though one can eat tevel after setting aside teruma, as long as he has not yet set the teruma aside, there is no heter akhila. The Ramban disagrees and says that an etrog that is tevel is indeed fit for the mitzva. Since one can eat the etrog after setting aside teruma, it is not regarded as lacking a heter akhila. The Ramban's position appears reasonable, if we understand as did Rashi that the disqualification of the lack of heter akhila stems from the law of "yours." The root of the disqualification is not the prohibition of eating, but the limitation on use. This being the case, since in actuality there is nothing barring the owner from eating it, inasmuch as he can set teruma aside, and there is nothing preventing him from so doing, it is reasonable to argue that even before the teruma is set aside, the tevel should not be viewed as something whose use is limited.

 

            The Tosafot (s.v. lefi, end) imply that second-tithe outside of Jerusalem has a heter akhila, for they write that it would have been possible to bring the case of second-tithe outside of Jerusalem as a practical ramification between the two rationales. This implies that according to the opinion that builds on the absence of a heter akhila, it is fit. The reason is that even though one is forbidden to eat second-tithe outside of Jerusalem, he can however bring it to Jerusalem and eat it there. It is possible that the Tosafot agree with the Ramban – and disagree with Rashi – and say that anything that can be eaten after some adjustment is made is regarded as having a heter akhila and regarded as "yours. It seems, however, that one can distinguish between tevel and second-tithe outside Jerusalem. In the case of tevel, the adjustment is in the cheftza itself, and therefore Rashi maintains – and perhaps the Tosafot agree - that prior to the adjustment, it is regarded as a cheftza that is not fit to be eaten, and cannot be eaten as long as it stays as it is now. In the case of second-tithe, on the other hand, where the produce must be brought up to Jerusalem, the bringing it up to Jerusalem does not relate to the cheftza itself nor does it change its basic identity. It is therefore reasonable to posit that second-tithe outside of Jerusalem is already now regarded as fit for eating – in Jerusalem – and that already now it has a heter akhila by bringing it up to Jerusalem.

 

            Since he does not specify otherwise, the Rambam (8:2) implies that second tithe outside of Jerusalem is unfit for the mitzva of etrog. If the Rambam is consistent with what he says in his commentary to the Mishna, it therefore stands to reason that since he cannot eat the second-tithe where he is now found, it is not defined as a fruit. The position of the Ramban and the Tosafot applies only according to Rashi, who maintains that the disqualification stems from the inability to eat it, for then it can be argued that a person can eat the second-tithe if he brings it up to Jerusalem. According to the Rambam, however, in order to be defined as a fruit, the etrog must be edible now, and therefore, since it is currently unfit to be eaten, it is not defined now as a fruit.

 

            Teruma that is ritually pure is fit for the mitzva of etrog. Rashi (35b, s.v. harei) explains that it has a heter akhila even for an ordinary Israelite, because he can feed it to his grandson born to his daughter who is married to a kohen. The Tosafot (s.v. de'i) write that teruma is considered as having a heter akhila because it is permitted to a kohen. They seem to disagree. According to Rashi, by right the person who takes the etrog for the mitzva must enjoy a heter akhila. Therefore, teruma, which is forbidden to an ordinary Israelite, should not be fit for the mitzva. But since he himself can feed it to one of the members of his household, his grandson by a daughter who is married to a kohen, he is regarded as having a heter akhila. You might object: Nevertheless, he himself cannot eat the etrog! The answer is that Rashi is consistent with his own position, that heter akhila is based on the idea of control, that is to say, what is necessary is not the allowance to eat in and of itself, but the ability to use it for the benefit of eating. It, therefore, suffices if he can feed the etrog to one of the members of his household who is dependent upon him for his support, for that demonstrates that he is in control of the eating. The Tosafot understand that there is no need for all this, because the very fact that teruma is not forbidden to everybody, but rather permitted to a kohen, renders it fit for the mitzva for everybody. According to the Rambam's definition, this is clear, because the etrog cannot be defined as a fruit only with respect to one person. If a kohen can eat teruma, then the etrog is defined as a fruit. The Tosafot, however, do not appear to disagree with Rashi's definition of heter akhila, but nevertheless they maintain that since teruma is essentially permitted to be eaten, the fact that an ordinary Israelite may not eat the teruma does not remove the etrog from the category of "yours."

 

            The wording of the Re'a and the Ran implies that they maintain that a kohen can fulfill his obligation with an etrog that is teruma, but an ordinary Israelite cannot. This fits in with the view of Rashi that there must be monetary control in the heter akhila. And they don't accept the argument that the ability to feed a member of one's household fulfills the requirement of having control. The Meiri inclines toward stringency as well.

 

            In any event, even a wealthy person can fulfill his obligation with an etrog that is demai (according to Bet Hillel), because he himself is permitted to eat the etrog if he declares his property ownerless.

 

            Regarding an etrog that is demai, the Gemara says that it is fit for the mitzva because a person can eat it if he declares his property ownerless, thus turning himself into a pauper. The Tosafot say that this is imprecise, because the very allowance for a pauper suffices to render the etrog fit for the mitzva for all. Rabbi Yosef Dov Soloveitchik, ztz"l, suggested that demai may be different than teruma. Teruma is permitted to a kohen, and in such a case we can adopt the position of the Tosafot that an allowance to one person defines the etrog as having a heter akhila for all. Demai, on the other hand, is essentially tevel by rabbinic decree, and therefore it should be forbidden to all. The fact that it is permitted to a pauper or a lodger is an allowance based on compelling circumstances. In other words, it is not that the cheftza of the demai is permitted, but rather that in difficult situations, the Sages permitted the prohibition. This being the case, the etrog should not be viewed as essentially enjoying a heter akhila. The Gemara, therefore, argues that even a wealthy person can eat the demai if he declares his property ownerless, and therefore he is regarded, practically speaking, as enjoying a heter akhila.

 

            (Rabbi Soloveitchik explained here and elsewhere that the ability to declare one's property ownerless is not merely an allowance to eat, but rather proof that the demai is actually permitted, and not in the category of forbidden foods even by rabbinic law. It is the act of eating that is forbidden, and not the cheftza of the demai. According to our explanation, however, which emphasizes that the disqualification does not stem from the fact that the etrog is defined as forbidden, but from a deficiency in his ability to use the fruit, based on the law of "yours," there is no need for this. According to the Rambam, however, that the disqualification stems from a deficiency in its definition as a fruit, Rabbi Soloveitchik's explanation is correct, for demai is even different from second-tithe outside of Jerusalem, the cheftaz of which is forbidden in the meantime, whereas the cheftza of the demai is permitted.)

 

ADDITIONAL COMMENTS:

 

1)         Tosafot, s.v. lefi. The end of the Tosafot is difficult to understand. See Maharshal and Maharsha. In the Tosafot ha-Rosh, this appears under a separate lemma, which proves that the Tosafot understand that the tithing of fruit is only by rabbinic law, and that this is the foundation of their objection, following the reading of the Maharsha. It turns out that according to the Tosafot second-tithe by rabbinic law is disqualified for the mitzva by rabbinic law, according to the opinion that disqualifies an etrog of  orla  because it lacks a din mammon. It would seem that this is connected to the famous question whether ownership or lack thereof by rabbinic law is effective on the level of Torah law. It may be possible, however, to distinguish between ownership by rabbinic law and being regarded as belonging to hekdesh by rabbinic law. In the latter case there is no monetary enactment, about which we can say that it applies by Torah law based on the Sages' authority to declare property ownerless, but rather an enactment in the laws of tithing.

2)         The position of the Tosafot and the Ritva have practical ramifications regarding the law of ketutei mikhtat shi'urei. But this is not the forum to discuss the matter at greater length.

 

(Translated by David Strauss)