“The following is a general rule regarding ma’asrot: anything that is (i) food, (ii) stored (nishmar) (iii) grows from the ground must have ma’asrot separated” (Ma’asrot 1:1)
The Mishnah at the beginning of this masechet deals with the definition of food that must have ma’asrot removed. The Mishnah simply lists the three above stated characteristics. The Gemarah explains the requirement that food be “stored” comes to exclude ownerless fruit (hefker). Throughout the masechet however, more essential characteristics are revealed, eg, the food must be owned by a Jew and not be hekdesh.
It appears that the source of this additional exemption stems from an understanding of the obligation separating trumot and ma’asrot. In general there are two types of obligations presented by mitzvot that are connected to the land. The first is that the mitzvah is connected to the produce itself, eg, kilayim or orlah. The second is that the obligation rests on the owner. This masechet appears to follow the second way. Consequently, in the case where the produce is owned by a non-Jew or it is hekdesh, it makes sense that ma’asrot need not be separated as there is no “owner” to obligate.
One may ask: why was only the exemption of hefker listed in our Mishnah? How is this different from the other exceptions?
To answer this question, a further law must be discussed in order to highlight the differences between the exemption of hefker and the other exemptions.
The Mishnayot in the beginning of the masechet discusses the time in the fruit’s development when the obligation to remove ma’asrot begin. It mentions three stages:
A third of its growth – from this point onwards one can separate
ma’asrot, yet on a biblical level it is not considered tevel.
Smoothing of the pile (End of work) – After the completion of work,
there is a rabbinic obligation to separate trumot and ma’asrot. Even a light snack is prohibited. (There is a debate about its status on a biblical level – see Bava Metzia 88b).
Entering the house – According to most opinions, this stage is where
the biblical obligation of separating ma’asrot begins.
One may ask, what happens if the ownership changes between any of these periods? The Gemarah (Bava Kama 94a) rules that the obligation to separate trumot and ma’asrot remains, as long as in the end they belong to a Jew. If, however, they become ownerless at any point the Gemarah explains they are exempt - even if they were owned by a Jew at all of the points in time mentioned above.
How does one explain the different rulings? If the produce is owned by a non-Jew or is hekdesh there is only one problem – one does not have anyone to obligate to separate the trumot and ma’asrot. Conversely, with hekdesh there is not only a problem of lack of ownership, there is also a problem with the produce itself. Perhaps one of the requirements, that the produce be “stored”, is a requirement on the produce itself that it can never be ownerless.
Returning to the Mishnah, one can now understand why hefker is included while hekdesh or non-Jewish ownership is not. The Mishnah is not dealing with the laws of ownership, which is discussed later in the masechet. It is rather dealing with which objects are obligated. Hefker, as has been explained, is not simply an ownership issue, rather it is a flaw in the produce itself.
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