The Mishnah (7:5) records a debate regarding one who wishes to thin out vines. The farmer’s intention is to remove some bunches to allow more room for others to develop. R’ Yehuda maintains that one is allowed to remove any clusters, including those that may “belong” to the aniyim (poor). This refers to olelot, which are badly develop clusters that ordinarily must be left for the poor.1 R’ Meir however disagrees arguing that the owner must not remove any of the olelot. We shall try and understand this debate.
The Bartenura explains that the debate is based on how we understand the aniyim’s share or claim in the field. R’ Yehuda understands that the aniyim have the status of a shutaf – partner. Since in the case of a partnership, one can operate on behalf of both parties, here he can remove both the clusters belonging to the owner and the aniyim. R’ Meir however understands that the aniyim have the status of a koneh – purchaser. That being the case, the farmer must not touch the property that belongs to the aniyim.
The Tifferet Yisrael finds this explanation for R’ Yehuda difficult. He maintains that we cannot compare our case with a normal partnership. In our case, it is clear which bunches belong to the owner and which belong to the aniyim; the owner has no “share” in the olelot.
The Tifferet Yisrael therefore explains that R’ Yehuda reasons that the owner is allowed to thin out areas of olelot since it will benefit the poor - it will result in the adjacent olelot developing better. Consequently, it is considered like “me’shiv aveida” – returning a lost item. R’ Meir however disagrees since some people might instead prefer a greater abundance of poorly developed grapes. Consequently, the owner has no right to thin any olelot.
The Mishnah Rishona also has a similar difficulty with the Bartenura’s explanation. He therefore explains that R’ Yehuda and R’ Meir do not apply the laws of a shituf and koneh to the aniyim, but rather based on logically reasoning simply compare the aniyim to those two models. In other words, R’ Yehuda understands that the owner and the aniyim have equal rights and are therefore compared to case of partners. Even though the cases are not equal, since the aniyim’s share is already effectively allocated, R’ Yehuda understands that the Torah did not give over the olelot in the case where it causes a loss to the owner. R’ Meir however understands that the position of the aniyim is stronger than the owner. It is comparable to the case of a purchaser, where one sells with an “ayin yafa” and the seller must provide to the purchaser even if he incurs a loss.
The Tosfot (Moed Katan 4b) however provide a very different answer. He explains that R’ Yehuda allows the owner to thin the olelot since the prohibition of taking olelot is only at the time of harvest. This is based on the pasuk (Devarim 24:21): “When you harvest your vineyard, you shall not glean (te’olel) after you…”. It would appear that the debate then is whether the olelot belong to the poor prior to the beginning of harvest.
According to this understanding, the later Mishnah (7:8) provides a difficulty. The Mishnah teaches that if one sanctifies his field after the olelot have already developed then those olelot may still be taken by the aniyim. If we understand that the olelot do not belong to the aniyim prior to harvest, what prevents the owner from sanctifying them.
The Tosfot Yom Tov (7:8) explains that while the halacha is like R’ Akiva (see 7:7) that the aniyim cannot take olelot prior to harvest, nevertheless once the olelot appear the owner has no share in them. With this understanding let us return to the Tosfot. We suggested that they understood that according to R’ Yehuda the olelot do not belong to the aniyim prior to harvest. The Tosfot however do not say that. They explain that there is no prohibition of taking olelot prior to harvest. Therefore, we may suggest that there are two considerations: one is financial, who does it belong to; and the other is the prohibition of taking olelot. The Tosfot are teaching that once the olelot develop even though the owner has no share in them, the prohibition of taking them does not yet apply. Consequently, we only need to deal with the financial considerations and there may be reasons as we suggested earlier, that justify the owner trimming the olelot. If, however the Torah prohibition already existed then the financial justifications alone would not be enough. What would R’ Meir maintain according to the Tosfot? They do not explain. However, they could either understand that the prohibition already exists or that he disagrees with the financial justifications as above.
1 We learnt (6:4) that this refers to clusters that lack shoulders (the smaller clusters at the top of the bunch) and also lack the droop (the grapes towards the end of the stem).
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