Misappropriate Acquisitions with Maaser Sheni Money

Maaser Sheni (1:7) | Yisrael Bankier | 7 years ago

This week we started Maaser Sheni. Recall that Maaser Sheni refers to the second tithe separated in the first, second, fourth and fifth years of the shemittah cycle. This maaser may be retained by the owner, but must be taken to Yerushalaim and eaten there. We have also learnt in the past that one can redeem the maaser sheni produce with money (if he adds “chomesh”). That money must then be taken to Yerushalaim. Ideally it should be used to purchase a korban Shelamim. However, it may also be used to purchase food that will then be considered like maaser sheni and consumed there.

The Mishnah (1:7) discusses the law where one used maaser sheni money to purchase something else, for example, land or a horse. The Mishnah explains that in such a case one must yochal kenegdan - “eat against them”. The Bartenura explains that one must take his own money equal to the amount that he spent and purchase other food in Yerushalaim and treat that food as maaser sheni food.

The Bartenura continues that the solution presented by the Mishnah is only when the seller has fled, otherwise the original maaser sheni money should simply be returned. Returning the money is indeed the first option as presented by earlier Mishnayot. We shall however try to understand this second solution – being yochal kenegdan.

The Tosfot cites Rashi that explains that if the seller has run off, one sets some money aside and declares that the kedushat (sanctity) maaser sheni of the original money, wherever they are, is transfered to the coins resting in front of him.

The Riva cites the Gemara (Bava Kama 69a) that teaches that if one had something stolen and he has not given up hope of retrieving it, neither he nor the thief can consecrate (makdish) it. Important for our discussion, the owner cannot consecrate the object since it is not in his possession. The Gemara there draws parallels between case of consecrating and redeeming kedusha. The Riva therefore asks, since the maaser sheni money is not in his possession, how can he transfer the kedusha?

The Tosfot provide two answers. The Riva explains that in our case he is not redeeming the original maaser sheni money and it retains its kedusha. Instead, the ruling in our Mishnah is a knas – a fine – placed on the purchaser for the improper use of maaser sheni money.

R’ Meir, the second answer, however explains that this case is different and the purchaser can redeem the original maaser sheni money. The reason that this case is different is that it is in the interest of the seller for another person to redeem the maaser sheni money in his possession for him. He continues, that we have a principle of “zachin lo l’adam shelo befanav” – one is able to acquire or operate on behalf of another without their knowledge if it is to their benefit. He explains that this concept holds true since the person effectively acts as the shaliach (agent) of the other party. In this case as well, the purchaser would be able to redeem that original maaser sheni money as he would effectively be acting as the shaliach of the seller in redeeming the money.

The Ritva however explains that there is difference between our case and the case of theft. In our case, the money came into the hands of the seller by mean of an acquisition. The seller thought that because of the sale, the kedushat maaser sheni transfered to the object sold and the money was, as a result, regular money. Consequently, since if we had access to the seller and explained the situation he would realise that it was a mistake and happily return the money, the money is considered like a pikadon (collateral) being held by the seller. In such cases a mafkid (entrusting party) can consecrate or redeem an object in held by another. Consequently, in our cases as well, the purchaser can redeem his maaser sheni money.¹

¹ See the Ketzot HaChoshen (354:2) who raises a difficulty with this explanation. See also the Chatam Sofer (ChM 169) who attempts to resolve this difficulty.

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