Selling Maaser Sheni

Maaser Sheni (1:1) | Yisrael Bankier | 13 years ago

Maaser Sheni is (literally) the second tithe that is separated from produce. Unlike the other matanot, the owner may retain it. It must however, be taken to Yerushalayim and eaten there. If necessary, the maaser sheni produce could be redeemed with money. The money must however then be taken to Yerushalayim and used to purchase food to be consumed there. Note however that during the third and sixth years, the second tithe has a different status. It is referred to as maaser ani and is given to the poor who can consume it anywhere.

The masechet opens with the restrictions placed around maaser sheni due to its sanctity. The first of these is the prohibition against its sale. The Tosfot Chadashim notes that the prohibition is specifically against a sale where one intends that the sanctity will remain with the produce so that the purchaser takes the produce to Yerushalayim. The reason for the assertion is that the Mishnah later (4:6) explains that one can sell maaser sheni if the sanctity will be transferred to the money received.

Why is the sale in our Mishnah prohibited? The Bartenura explains prohibition is the by-product of one side of a more fundamental debate. The question that is asked is who does maaser sheni belong to? The Chachamim maintain that it is considered the property of the owner, while R’ Meir understands that it is the sacred property (mamon gavo’ah albeit entrusted with the “owner”). There are a number of implications of this debate, one of which, according to the Bartenura would be our Mishnah. According to R’ Meir one cannot sell maaser sheni because it is not his to sell. 

The Mishnah in Pesachim also refers to the prohibition against selling teruma but specifically inside Yerushalaim. There are two explanations brought in the *Tosfot.*The Ri explains that the prohibition is a gezeira. We know it is prohibited to redeem maaser sheni once it reaches Yerushalaim. There was a concern that if the sale of maaser sheni was allowed, then on might redeem maaser sheni as well. This first answer, while it applies only to sales inside Yerushalayim, is not dependant on the debate regarding the “ownership” of teruma. The Rashba explains that the prohibition is to prevent the potential dishonour that would be shown to the mitzvah if it was sold. Once again this answer it not dependant on the above stated debate. The difference however is that it can be used to explain why the sale is prohibited outside Yerushalayim as well.¹ 

The Bartenura explains that the sale is also prohibited outside Yerushalaim. The Tosfot R’ Akiva Eiger notes that since, as stated above, the Bartenura explain that this Mishnah is only the opinion of R’ Meir, it implies that they also argue about whether one case sell teruma outside Yerushalayim. To be explicit, the Chachamim would allow one to sell teruma outside Yerushalayim – after all, according to their opinion, it is his property.

The difficulty raised by the Tosfot R’ Akiva Eiger is that the Gemara (Sanhedrin 112) implies that everyone agrees that one cannot sell maaser sheni outside Yerushalaim. The debate between R’ Meir and the Chachamim discussed in the Beraita is whether maaser sheni dough requires the removal of challah. Rav Chisda explains that the debate is about the case where the dough is in Yerushalaim. Consistent with their positions, R’ Meir exempts the separation, while the Chachamim require it. However outside Yerushalayim everyone agrees that no separation is required. The implication is that everyone outside Yerushalaim maintains that maaser sheni is mamon gavo’ah. Extending that to our case, everyone would agree that sales are prohibited outside Yerushalaim.

With great trepidation the Tifferet Yisrael offers a solution to this problem. The reason why everyone agrees maaser sheni dough is exempt from challah has nothing to do with whether maaser sheni is mamon gavo’ah. Citing the Tosfot (Bechorot 9b “v’t’nan”) he explains that the Torah requires the separation of challah from the dough that the Torah refers to as “arisoteichem” (your dough). Since maaser sheni cannot be eaten outside Yerushalayim, while it is there it is not considered arisotreichem. ² 

¹ The Rashba actually cites our Mishnah when developing his explanation.

² The Tifferet Yisrael elaborates further in his defence. See inside.

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