In this week’s Mishnahyot we learnt that a chatzer – one’s courtyard – is koveah. In other words, if one’s produce has reached gmar melacha (completely processed) and it is brought into one’s chatzer, then terumot and maaserot (maaserot for short) must be separated prior to consuming the produce. From this point, the requirement applies even if one wishes to eat the food as a snack (achilat arai). In short, the produce is now tevel.
The Mishnah (3:5) records a debate regarding the definition of a chatzer that qualifies for this law. R’ Yishmael understand that it must be like a chatzer tzurit – protected with a guard. R’ Akiva disqualifies a chatzer if it is shared by two residents with independent access rights. R’ Nechamya understands that only a chatzer where one would be unashamed to eat inside it would qualify. Whereas R’ Yossi disqualifies a chatzer in which, if a stranger wandered in he would not be questioned.
Rabbeinu Tam (Tosfot, Niddah 47b) cites our Mishnah when raising a difficultly on another Gemara (Bava Metzia 88a). The Gemara cites a debate regarding what is koveah on a biblical level. R’ Yanai maintains, that the produce is not considered tevel until it is brought into the house. He cites the verse for vidui maaserot as a proof, “I have removed the kodesh (referring to maaserot) from my house” (Devarim 26). R’ Yochanan however argues that even one’s chatzer is koveah. He cites the passuk relating to maaser rishon, “and you shall eat it in your gates and be satisfied”. The Tosfot asks that our Mishnah appears to prove that one’s chatzer is koveah and therefore presents a difficulty for the position of R’ Yanai. The Tosfot answer that while it is true that according to R’ Yannai on a biblical level the produce is not tevel until it reaches the house, on a rabbinic level a chatzer can be koveah. The Ramban explains that since one’s chatzer can be protected like one’s house one may confuse the two and err with respect to this law.1 He cites the Yerushalmi in support, that R’ Yanai agrees that a chazter is koveah on a rabbinic level (like an acquisition).
Similarly, the Mishnah Rishona understands in our Mishnah that everyone agrees that the law is rabbinic. Nevertheless, it is only applied to a chatzer that is like one’s house. The debate is regarding the critical attribute that makes a chatzer like a house. According to R’ Yishmael and R’ Akiva the criteria is whether it is protected. He understands that according to R’ Nechamya it is whether he feels comfortable to engage in his affairs as he would at home. Finally, while R’ Yossi does not require that it be protected, it nevertheless cannot be open to everyone.
What is the position of the Rambam? How does he rule? The Rambam (Maaser 4:1) rules that produce only become tevel on a biblical level once it reaches one’s house. It would appear then that the Rambam ruled like R’ Yannai. Indeed, this is the position of the Kesef Mishnah (3:4). He explains that the Rambam rules like R’ Yannai since he was R’ Yochanan’s Rav.
The Biur HaGra (YD 331:139) however understands that the Rambam rules like R’ Yochanan that a chatzer is koveah on a biblical level. He cites the Rambam (4:7) who states, “just like a house is koveah for maaser, so too a chazter is koveah” which appears to be equating the two (if the chatzer qualifies as in our Mishnah). The Chazon Ish (Maaserot 5:16) cites the Rambam (3:3) as a further proof. There, the Rambam lists six situations that are koveah with a chatzer being one of them and a house omitted. He reasons that if a chatzer is fundamentally different to a house then the list should have also included a house separately. Furthermore, he cites the Rambam (4:2) that states that only if one eats tevel that was koveah in one’s house would he be liable to lashes (due to a biblical violation). He adds “… however regarding the rest of the six cases we mentioned” one would not receive lashes, rather makot mardut (a rabbinic form). The Chazon Ish understands that be referring to the “rest of” the six implies that the chatzer was not excluded. Furthermore, that Rambam began (chapter 3) by referring to chatzer and continued (chapter 4) by referring to a house to teach that they are equivalent.
1 See the Ritva (Bava Metzia 88a) that addresses the question of why we are not concerned that one might separate maaserot from rabbinic tevel produce in the chatzer for tevel on a biblical level.
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