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Hefker and Peah

Peah (1:5) | Yisrael Bankier | 6 days ago

This week we began the second masechetmasechet Peah. While the masechet deals with the various gifts for the poor, the Mishnah begins with discussing the gift after which the masechet is named. The Torah states (Vayikra 19:9): “When you reap the harvest of your land, you shall not complete your reaping to the corner (peah) of the field…”. From here we learn the obligation to leave some uncut produce for the poor.

The Mishnah (1:4) provides a general rule regarding to which food the obligation of leaving peah applies. One of the five requirements is that the food is “nishmar” – literally, protected. The Barenura explains that this requirement excludes a field that is hefker – ownerless.

One might ask, is it not obvious? If it is ownerless then who should the obligation apply to? If the Mishnah is teaching that even when one claims ownership of that field that has produce, he is exempt from leaving Peah then we have a problem. The Beraita cited in Bava Kama (28a) explains that if one relinquishes ownership of his field, then reclaims it the next day, he is nonetheless obligated to leave Peah. Rashi explains, citing the later Gemara (94a) that Peah along with the other gifts for the poor is different (to maaser), since the pasuk includes a second and superfluous instruction: “you shall leave it”. What then is the Mishnah teaching us?

Due the strength of this question, the Raavad understands that exemption discussed in our Mishnah is not referring to when a field is hefker, but rather species of food that are ordinarily hefker.

The Tifferet Yisrael (Boaz 4) however preempts this question and explains that if someone else other than the original owner claimed ownership of the field then it would be exempt. This is indeed the opinion of Rashi and the Rambam. What is the difference between who claims the field, and what is the function of the additional “you shall leave” cited above?

Rashi (ibid) explains that the pasuk excludes hefker of this nature, where the owner reclaims it. In other words, it appears that a higher standard of hefker is required and, even though it was hefker, the reclamation makes the original hefker below the standard. If someone else claims the field, the original hefker remains strong enough to exempt the new owner from leaving peah.1

Interestingly the Meiri explains that really there is no difference between the owner and anyone else and on a biblical level and the crop would be exempt. Nevertheless, the requirement on the original owner who reclaims the field is a rabbinic. This is either to prevent those that seek to exempt themselves of this obligation or because of the suspicion it might raise where others see the original owner harvesting his entire field without leaving peah.

The Rash however understands (based on the Yerushalmi) that it depends on when one claims the produce1 or field (and it does not matter who). If it was when the produce was still attached to the ground, then the obligation to leave peah still applies. The exemption of our Mishnah is only if one harvested a hefker field and only after that (re)claimed ownership of the cut produce.

The Chazon Yechezkel (Tosefta Peah 2:4) explains that the debate between the Rash and Rambam is based on where we learn the exemption of peah from a hefker field. The Rash understands that the exemption is based on the pasuk cited in the beginning of this article. Since the pasuk states “sadcha” – your field – one learns that the obligation only applies to a field that has an owner. The exemption is not with the field, but rather based on a technicality - the lack of an owner. If however at the time of harvest there is an owner, then the obligation applies.2

The Rambam in his commentary to the Mishnah however explains that the exemption is based on the word “you shall leave” (also cited above). The Bartenura explains that this excludes a field that is already “left” or abandoned. This is a law that applies to the field itself. Since it was an abandoned field at some point, even though it was claimed by someone, it remains exempt from leaving peah.3


1 The Ri (Tosfot, Temurah 6a) provides a different distinction. If the original owner reclaims the land then indeed the obligation to leave peah would apply. If however he only reclaimed the produce, but not the land, then it would not. A more details discussion of this position is unfortunately beyond the scope of this article.

2 The Chazon Yechezkel points to mishnayot (2:8, 4:7) that we will learn, that are based on a similar principle.

3 See Rambam, Matanot Aniyim 2:1 that appears to learn the exemption from sadcha.

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