Workers' Rights and Keviut Le'Maaser

Maaserot (2:7) | Yisrael Bankier | 2 months ago

Once produce ripens, one can eat from that food in a snack fashion. If however, they want to eat in a more fixed manner, they would be required to first separate terumot and maaserot. This continues to be the case until the food is brought home or, if one wishes to sell the food, once it reaches gmar melacaha -- completion of the required work. We have learnt this week, that there are other things that the Chachamim added that are "koveah" -- other moments or actions because of which one must separate maaserot prior to any manner of consumption. One of these is a kinyan -- acquisition.

R' Chaim (Biur Halacha Maaserot 5:9) cites the Ramban who explains that the reason why a kinyan was added is because one treats something that they pay for differently and with a greater sense of keviyut -- more substantially.

The Mishnah (2:7) discusses the case of a worker, who the Torah permits to eat from the food with which he is working. The Mishnah teaches that even if the worker stipulated as part of the work agreement to eat from that food, it would not change anything. Since the Torah grants him that right, it is not considered an acquisition, and the worker can eat from the food without separating maaserot. The Mishnah continues however that if the worker stipulates that his family eat from the food alongside him, or that his son eats "bischari" (for my wage) then, while he can eat, maaserot would need to be separated first for his family. The Bartenura explains that with respect to his son, the stipulation would be considered a business transaction and thus be koveah.

Interestingly, the Yerushalmi asks that the fact that the Torah grants the worker the right to eat food that did not belong to him should itself be considered a transaction. Why then is the worker able to eat from the food without separating maaserot? The Yerushalmi explains that the Torah explicitly exempts the worker. The Yerushalmi later explains that this is based on the pasuk: "When you come into the vineyard of your fellow, you may eat grapes as in your desire (kenafshecha)..." (Devarim 23:25). The word nafshecha implies that just as you can eat from the food without separating maaserot so can the worker. The Gemara (Bava Metzia 88b) explains that this reference is an asmachta, which the Chachamim associated with their rabbinic law, considering that a kinyan itself is only koveah rabbinically. Consequently, with respect to this law the Chachamim considered the worker like the owner.

One detail worth addressing in our Mishnah is what the stipulation that his son will eat "bischari" means? Rashi (Bava Metzia 92b) explains that he is stipulating that his son will eat as part of his wage. The worker however can still eat due to his biblical right.

The Tosfot however find this explanation difficult. The reason is that the Gemara brings this case to try and address a more fundamental question. When the worker eats, is he eating what is considered his property or from "shamayim"? In other words, is that which he eats considered an addition to his wage that the Torah grants him? Or is it a considered like a gift, granted only to him by the Torah? The Gemara assumes that that the case in our Mishnah can resolve this question. If it granted to him alone as a gift, then we can understand that he alone does not need to separate maaserot. If the food is considered the property of the worker, then he should be able to give it to his son, without requiring any separation of maaserot. The Gemara answers that one could explain that even though it would not be considered a transaction, it nevertheless has the appearance of one and the Chachamim ruled stringently.

The Tosfot reason that according to Rashi's explanation, that it is part of a separate agreement that the son can eat as part of his wages, the case is not relevant to the question of the status of the food the worker is allowed to eat while he works. Also, according to Rashi's understanding, the agreement does not only have the appearance of a transaction -- it is one! Consequently, the Tosfot explains that "bischari" means that he negotiates that whatever he would eat by Torah law, he will instead give to his son.


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