Ch. 5 (2) Changes in Halakha Not by Way of Midrashic Exposition During the Period of Chazal

 

III. Ha-arama, Legal Evasion

Another halakhic tool that reflects a gap between the fundamental obligation imposed by Torah law and actual observance in practice is "ha'arama," legal evasion.[1] Chazal discuss in several contexts the possibility of exempting oneself from a particular obligation, whether Torah law or Rabbinic enactment, not by uprooting the obligation but by circumventing it – using a specified legal tool that allows one to evade the obligation. In the Rambam’s words (in his commentary to the Mishna, Temura 5:1): "The permitted stratagem is called ha'arama." There are different kinds of legal evasion: some are recommended, others are possible, and yet others are forbidden. This section will focus on recommended circumventions, that allow a person to exempt himself from a Torah obligation,[2] and will explore the motives that led to the creation of this circumventing mechanism. After all,  exploiting formal, technical factors in order to evade obligations imposed by the Torah is ostensibly an act worthy of condemnation from a moral point of view, and one who acts in this manner seems to a "naval bi-reshut ha-Torah," a scoundrel with Torah license.[3] Why did the Sages at times recommend adopting this approach?

To understand the mechanism of circumvention, we will examine several cases of this type. In the first, the Torah states that if a person finds it difficult to bring his second-tithe produce to the place chosen by God, he can redeem the produce with money, take the money to that place, and there buy food and eat it:

You shall surely tithe all the increase of your seed, that which is brought forth in the field year by year. And you shall eat before the Lord your God, in the place which He shall choose to cause His name to dwell there… And if the way be too long for you, so that you are not able to carry it, because the place is too far from you, which the Lord your God shall choose to set His name there, when the Lord your God shall bless you; then shall you convert it into money, and bind up the money in your hand, and shall go to the place which the Lord your God shall choose. And you shall bestow the money for whatever your soul desires, for oxen, or for sheep, or for wine, or for strong drink, or for whatever your soul asks of you; and you shall eat there before the Lord your God, and you shall rejoice, you and your household. (Devarim 14:22-26)

Elsewhere it is stated that when a person redeems his second-tithe produce, he must add a fifth:

And all the tithe of the land, whether of the seed of the land, or of the fruit of the tree, is the Lord's; it is holy to the Lord. And if a man will redeem any of his tithe, he shall add to it the fifth part of it. (Vayikra 27:30-31)

From this follows the law in the Mishna:

If a man redeems his second tithe, he must add a fifth, whether it is his own or it was given to him as a gift. (Ma'aser Sheni 4:3)

However, Chazal inferred from the verse that the law of adding a fifth applies only to one who redeems "of his tithe," i.e., his own tithe, but one who redeems another person's second-tithe is exempt from adding a fifth (Yerushalmi, Ma'aser Sheni 4:3, 55a).

The Mishna thus goes on to describe how a person can use ha'arama to exempt himself from the obligation to add a fifth – by handing over the money to a member of his household who enjoys independent financial standing:

One may use circumvention (ha'arama) in respect of second tithe. How so? A man may say to his adult son or daughter, or to his man-servant or maid-servant: Take this money and redeem this second-tithe for yourself. (Ma'aser Sheni 4:4)

In this way, the act is considered as redemption on behalf of another person, which is exempt from the addition of a fifth.[4] This advice seems surprising: Why did the Sages recommend a way to free oneself from a Torah obligation? The Yerushalmi (ad loc.) seems to answer this question:

Why do we circumvent it? Because a blessing is written in its regard.

This formulation suggests that the words "when the Lord your God shall bless you," in the passage describing redemption of the second-tithe, teach us that the second-tithe involves a special blessing that allows a person to enjoy what he has produced with his own two hands. As the Penei Moshe says: "The Torah signals that we may be lenient about its redemption." This is exceedingly puzzling: If the Torah saw a blessing in exemption from the additional fifth, why did it establish the law of a fifth in the first place? And why does the blessing apply only to one who becomes exempt from the fifth in this manner? Moreover, in the plain sense of the text, the phrase "when the Lord your God shall bless you" refers to the words "because the place is too far from you, which the Lord your God shall choose to set His name there" – meaning, Israel's inheritance in the land will expand, and therefore the place which God shall choose will be far away for many. How does the exemption from adding a fifth "enter" these words? And why did the Sages turn circumvention into a legitimate tool, to be used even a priori (lekhatchila), rather than leaving the obligation of adding a fifth as the Torah established it?

Rabbi Moshe Schreiber, known as the Chatam Sofer, answered these questions:

It concludes: Because of the blessing. This means: Regarding "you are not able to carry it," it is written: "when the Lord your God shall bless you." The homesteaders, because they had to add a fifth, refrained from redeeming their produce and brought it [to Jerusalem] and forfeited the blessing. Therefore, Chazal came up with a circumvention that allowed them to redeem [the produce] without adding a fifth and bring the money [to Jerusalem]. (Responsa Chatam Sofer, Orach Chayim, no. 62)

According to the Chatam Sofer, this legal evasion is a Rabbinic enactment designed to deal with the reality that people refrained from redeeming second-tithe produce because of the additional fifth, and brought the produce itself to Jerusalem. The Sages saw this as a problem, because the blessing mentioned in the verse is associated specifically with the option of redeeming the produce and bringing money instead – "And if the way be too long for you, so that you are not able to carry it, because the place is too far from you, which the Lord your God shall choose to set His name there, when the Lord your God shall bless you." Therefore, the Sages proposed this method even a priori, as an ideal solution, so that people could redeem their produce and receive God’s blessing without having to add a fifth. It turns out, then, that legal evasion is another way of dealing with the challenges of the time.

Admittedly, the explanation of the Chatam Sofer is also not simple. It is difficult to see from the Biblical text that the Torah prefers redeeming the second-tithe produce over bringing the produce itself to Jerusalem. The possibility of redeeming the second-tithe with money is presented as a solution for the technical difficulty experienced by those living far from the place chosen by God – the Torah was lenient with them and allowed them to redeem the produce with money – but it is difficult to say that it is specifically those who redeem with money who will be blessed, and not those who live close by and do not need to redeem their produce.

Perhaps we can accept the fundamental approach of the Chatam Sofer, that legal evasion is a positive tool for dealing with a real-world problem, but propose that the problem addressed by it was different. It seems that owing to the heavy economic burden, people had difficulty keeping the mitzvot of terumot and ma'aserot in general, and this circumvention was designed to make their observance somewhat easier. The phenomenon of not setting aside terumot and ma'aserot is explicitly mentioned elsewhere:

Rabba bar Bar Chana said in the name of Rabbi Yochanan, who said in the name of Rabbi Yehuda Ilai: See what a difference there is between the earlier and the later generations. The earlier generations used to bring in their produce by way of the kitchen-garden[5] purposely, in order to make it liable to tithe, whereas the later generations bring in their produce by way of roofs or courtyards or enclosures in order to make it exempt from tithe. For Rabbi Yannai has said: Untithed produce is not subject to tithing until it has come within sight of the house, for it is stated: "I have put away the hallowed things out of my house" (Devarim 26:13). (Berakhot 35b)

The Gemara here criticizes the "later generations,"[6] in the name of the Tanna Rabbi Yehuda, because they used a halakhic solution to circumvent the obligation of tithing. By Torah law, produce becomes liable for tithing only if it was brought into the house through the main gate, so they would bring the produce in through some other route. This is another legal evasion – exploitation of a legal loophole that allows the consumption of produce without first setting aside terumot and ma'aserot. Such circumvention, however, is problematic, and therefore criticism is voiced about the decline in the generations. In any case, we see from here that there was large-scale avoidance of setting aside terumot and ma'aserot. In light of this, we can suggest that the circumvention proposed by Chazal, to exempt second-tithe from the required additional fifth was designed to deal precisely with this trend – strengthening those who wished to observe the mitzva, who brought their produce into the house through the main gate, by creating a degree of leniency regarding fulfillment of the mitzva.

In fact, Chazal added another circumvention in order to make it easier to set aside terumot and ma'aserot:

For Rav Hoshaya said: A man may resort to circumvention with his produce and bring it into the house while still in its chaff, so that his animal may eat of it without its being liable to tithe. (Berakhot 31a) 

This circumvention is based on the halakha that the obligation of tithing applies only after “the pile of grain has been given an even shape” (i.e., the process of harvesting and gathering is complete), while if a person brings his grain into the house before winnowing and smoothing the pile, it is not liable for tithes. If we accept the simple understanding, that the allowance is only for animal food,[7] we can understand why this circumvention is presented as a completely permissible solution but bringing produce into the house through the roof is considered a problematic circumvention. Bringing the produce into the house through the roof is designed to avoid having to tithe the main part of what the person himself will consume, and therefore the practice should not be adopted. But the Sages were lenient with regard to much smaller circumventions, and adopted a position of lekhatchila, for the sake of maintaining basic observance of the mitzva even in times of economic distress, when people might otherwise have refrained from setting aside terumot and ma’aserot altogether.

A circumvention is also recommended with regard to the law of a firstborn animal.  By Torah law, a person is obligated to set aside the firstborns of his flocks and herds for God (Shemot 13:12, and elsewhere), and he cannot use such a firstborn for a different offering: "But the firstborn among beasts, which is born as a firstborn to the Lord, no man shall sanctify it; whether it be ox or sheep, it is the Lord's" (Vayikra 27:26). Yet, the Mishna proposes a way to circumvent the obligation to give the firstborn to the priest, and to bring it as a different offering:

How do we circumvent with regard to a firstborn? He says with reference to a pregnant animal which was giving birth for the first time: If what is inside of this [animal] is a male, let it be a burnt-offering. If it then gave birth to a male, it is offered as a burnt-offering. (Bekhorot 5:1)

The circumvention is based on the halakha that the sanctity of the firstborn begins only when the animal leaves the womb: "'As a firstborn to the Lord' – when it becomes 'a firstborn to the Lord,' you must not sanctify it [for another dedication], but you may sanctify the firstborn [for another dedication] while it is inside of the animal" (Temura 25a). Therefore, as long as it is inside its mother's womb, it can be consecrated "to remove it from the priest and to set it aside for an obligatory offering" (Rashi, Temura 24b, s.v. matnitin ma'arimim).[8] Here, too, the question may be raised: Why did the Sages permit such circumvention, and not see it as an evasion of the commandment to give the firstborn to a priest? "Why did Chazal recommend causing the priests to lose their priestly gifts and circumventing the law of a firstborn when the Temple stood?"[9] (Chatam Sofer, ibid.).

The Chatam Sofer himself does not answer the question, but the motive for the circumvention may be similar to what we saw regarding tithes: financial relief for one who is already obligated to bring a burnt-offering. In order to ease his expenses, the Sages saw fit to allow him to use his firstborn as a sacrifice, whether to avoid undue expense[10] or out of fear that people might refrain from setting aside their firstborns because of the financial difficulty in this mitzva.

In conclusion, we have seen several circumventions that are permitted, and perhaps even recommended, that the Sages adopted in order to deal with changing realities and with the difficulties of each generation. The Sages permitted such circumventions out of a broad view of reality and in consideration of what the Torah wants in the special circumstances that developed, which brought them to prefer legal evasion over the status quo.

(Translated by David Strauss)