SALT - Tuesday, 20 Iyar 5777 - May 16, 2017

  • Rav David Silverberg

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This week's SALT shiurim are dedicated in memory of
David Moshe ben Harav Yehuda Leib Silverberg z"l, 
whose yahrzeit is Sunday 18 Iyar, May 14.

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            Earlier this week, we noted the question addressed by a number of Rishonim as to whether kohanim are included in the obligation of ma’aser beheima – the annual cattle tithe, which requires offering one-tenth of one’s animals as sacrifices (Vayikra 27:32).  The Sefer Ha-chinukh (360) and Rambam (Hilkhot Bekhorot 6:3; commentary to the Mishna, Bekhorot 36b; Pe’er Ha-dor, 60) maintain that kohanim are no different from other members of Benei Yisrael in this regard, and are fully obligated in the mitzva of ma’aser beheima.  By contrast, Rabbenu Chananel, as cited by several Rishonim (Rashba, Ritva, Ran to Chulin 136b), maintained that kohanim are excluded from this obligation, and do not need to tithe their cattle.

            The Mishneh Le-melekh (Hilkhot Bekhorot 6:3) challenges Rabbenu Chananel’s position in light of the Gemara’s discussion in Masekhet Bava Kama (110b) regarding the law of gezel ha-ger – a repentant thief who stole from a convert who has since died.  Generally speaking, when a penitent thief wishes to return the items he had stolen from somebody who died after the crime was committed, he returns them to the victim’s inheritors.  A convert, however, loses all legal familial relationships upon his conversion, and thus unless he married and begot children after his conversion, he will have no relatives to whom a thief can return items stolen from the convert.  In such a case, if the convert has no halakhic inheritors, the Torah (Bamidbar 5:8) requires the thief to pay the money – plus an additional 20% penalty – to a kohen (and to bring a special atonement sacrifice).  The Gemara raises the question of whether the Torah simply awards the kohen these goods, or assigns the kohen the status of the convert’s inheritor.  Is this payment a gift given to the kohen like other gifts which the Torah requires donating to kohanim, or does the Torah name the kohen the convert’s inheritor, such that he receives the payment by right of inheritance?  The Gemara explains that this question would have ramifications for the case of a kohen who receives ten animals as a gezel ha-ger payment.  If we view this payment as a gift awarded to the kohen, then the kohen is not required to offer one sheep as a sacrifice to fulfill the obligation of ma’aser beheima.  The Mishna (Bekhorot 55b) states explicitly that one is not required to tithe cattle that he receives as a gift; the obligation of ma’aser beheima applies only to cattle born in one’s possession, or received via inheritance rights.  The Gemara therefore raised the question of whether a kohen receives gezel ha-ger as a gift, in which case cattle received as gezel ha-ger would be exempt from ma’aser beheima, or as his inheritance, in which case he would be required to tithe the cattle.  This question clearly works off the assumption that the kohen is, in general, included in the ma’aser beheima obligation.  The Gemara wondered whether gezel ha-ger meets the criteria for ma’aser beheima, but never questioned the premise that this obligation applies to kohanim.

            Many later writers refuted this proof, noting a distinction between cattle born in a kohen’s possession and cattle which the kohen receives from somebody else.  Rabbenu Chananel, presumably, absolved a kohen from tithing animals born in his possession, as he is excluded from the ma’aser beheima obligation, but would concede that animals born to a non-kohen would be subject to this obligation even after coming into a kohen’s possession.  Once an animal is born into the herd of a non-kohen, it becomes subject to the requirement of ma’aser beheima, and does not lose this status even after being transferred to the kohen’s possession through halakhic inheritance.  Therefore, the Gemara’s discussion about gezel ha-ger does not prove that a kohen is included in the ma’aser beheima obligation.

(See Rav Chaim Shaul Kaufman’s Mishchat Shemen, vol. 1, p. 312.)