Leket, refers to the individual stalks that fall during harvest and must be left to the poor.
The first Mishnah in the fifth perek teaches that if the farmer forms a pile in a region that has not yet been cleared of leket, any stalks in contact with the ground must be given to the poor. The Bartenura explains that this ruling constitues a fine placed on the farmer for acting inappropriately by covering the leket with his own produce.1
The second case raised in our Mishnah is where wind blows over the pile of produce mixing it with the leket left in the field. The Mishnah continues by recording a debate as to how much produce must be removed and given to the poor in place of the leket. In this case the Tosfot Yom Tov explains that that which is given has the status of leket and is therefore exempt from separating maasrot. He explains that this is based on the universally except principle we learnt in the previous Mishnah (4:11), that safek leket leket – when in doubt regarding whether something is leket we rule that it is.
The Tosfot Chadashim however finds the Tosfot Yom Tov difficult. We learn in the next Mishnah (5:2) that if a single stalk of leket mixes into the owner’s pile, then one is removed to replace it. Before giving it to the poor person, a number of other stalks are removed and the owner formulates a stipulation in order to ensure that the maasrot have been removed from that stalk prior to giving it to the ani. Why is this case different?
The Tosfot Anshei Shem differentiates between the two cases. In both cases, that issue that that which is separated might not be leket must be resolved. In the next Mishnah it is resolved using other stalks within the same stack. In this Mishnah, the owner can resolve it by separating the required maasrot from the entire mixture from other tevel (untithed) produce. What the Tosfot Yom Tov is teaching, is that maasrot does not need to be separated from the proportion that is estimated to be leket. Even though we do not know with certainty how much leket is mixed in, we treat that estimated proportion as being definitely leket.
The Tifferet Yisrael however provides a different explanation. In the next Mishnah the amount mixed in is known. The obligation of leaving that stalk originated when it fell and he now needs to replace it. In this case however, the amount is unknown and it is based on the owner’s estimation. This obligation is different and based on the pasuk “you shall leave”; he must now give the poor from his own produce. Whatever is separated now becomes leket and is therefore exempt from separating maasrot.
The answer of the Tifferet Yisrael relates to another question: why is safek leket, leket? Ordinarily, in a case of doubt relating to financial matters, the burden of proof rest with the one attempting to extract the property. In this case however, we rule in favour of the poor. The Gemara (Chulin 134a) explains that we learn, “…vindicate the poor and impoverished” (Tehillim 82:3). The Gemara explains that the pasuk cannot be referring to legal disputes since the Torah teaches (Shemot 33:3) that we should not ever distort judgements, even in their favour. Rather the pasuk teaches that, when it comes to matanot aniyim, act in tzedaka with your property and rule their favour. The Bartenura however learns that the source of safek leket, leket is from the pasuk “you shall leave” mentioned (superfluously) as part of the obligation of leaving peah.2
How do we understand the impact of the pasuk? There are two possible understandings. The first is that when instructed to rule in their favour despite the case being doubtful, the owner must simply give some of his property to the poor. The doubt nevertheless still exists with that which is given. Alternatively, the instruction to give the doubtful leket to the poor is part of the obligation of leket itself. Consequently, that which is given is leket and exempt from maasrot. The Tosfot Anshei Shem that requires maasrot to still be separated must have the first understanding, while the Tifferet Yisrael must understand that the Tosfot Yom Tov has the latter. 3
We could suggest that the debate is based on which pasuk this law is derived from. Perhaps the Tosfot Anshei Shem is based on the Gemara. That pasuk instructs use to simply to rule in his favour – not that the doubt is resolved. We know however that the Tifferet Yisrael learns this law the pasuk mentioned as part of the obligation of leket (“you shall leave”). Since it is part of the obligation of leket it takes the form of leket.
1 The fine would apply even if the stack consisted of different produce to the leket it covered, demonstrating that the ruling is not based on a doubt regarding which stalks belong to the poor, but rather a fine applied to the owner.
The Tosfot Yom Tov cites the Yerushalmi that in this case, since the Chachim make the bottom layer hefker (ownerless), it is exempt from separating terumot and maasrot. The Tosfot R’ Akiva Eiger notes that we will learn (6:1) that if one makes his property hefker only to the poor, it is debated whether it is exempt from maasrot, with Beit Hillel arguing it does not. He explains that in this case it is different. In the later Mishnah the debate is whether declaring one’s property in this manner is effective. According to Beit Hillel it is ineffective and any property claimed would need to be returned. In this Mishnah however, since Beit Din declare it ownerless to the poor and they have the power to do so, it would be exempt from maasrot.
2 This source is found in the Yerushalmi and also cited by the Tosfot Yom Tov.
3 See the Yalkut Biurim, Chullin 144a, p 271, that sites the Shaare Yosher on one side and the Chatam Sofer, Maharit and Torat Zeraim as being on the other side of this debate.
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