Class Notes - Class #7

The mitzvot that define taxes farmers must pay on produce appear piecemeal in the Torah and therefore also appear piecemeal in Sefer haHinnuch.  Two of those taxes appear in mitzvot #395 and #396, so before we discuss those mitzvot in detail we will survey the agricultural taxes on produce.  Our goal here is to outline the whole system so that we have some context when we get the details of each tax in its appropriate mitzvah.

            A farmer who grows grapes, grain, or olives in Israel is subject d’oraita to the full set of taxes on produce.  Certain other crops are subject to taxes, but only d’rabanan. Until those crops mature, they are not subject to taxes.  Once the crops mature, though, the farmer may eat or use only small amounts until the taxes are paid.  Once the ripe produce is harvested, the farmer must designate the taxes before using it.   If a farmer fails to take taxes and then sells the crops, the purchaser is required to take off the taxes.

            Once the farmer harvests the crops, the crops are considered “tevel,” produce subject to taxation from which taxes have not yet been taken.  The farmer must keep that tevel tahor, since some of the produce designated for taxes may only be eaten if the recipient is tahor.  Recall that food only can become tamei when it is wet, so the farmer must try to keep the harvest dry.  The farmer may not eat or otherwise use up any of the tevel until the taxes have been designated out.  Once the farmer has designated the produce for each tax, the remaining produce is no longer tevel and the farmer may use it. 

The tax process consists of two steps.  The farmer must designate what produce will pay each tax, physically separating the designated produce from the rest of the harvest and declaring the particular tax the designated produce is for.  Once the farmer has designated the produce for the taxes the farmer must deliver each type of tax to the appropriate recipient.  The farmer must take taxes separately for each type of produce in the harvest.

            We saw in mitzvah #72 that the farmer is required to separate the taxes in order.  Since some of the taxes are based on a percentage of the harvest, the order in which the taxes are separated will affect the amount paid.

            The first tax is t’rumah g’dolah. Mitzvah #507 governs t’rumah g’dolah, so we will learn more about this later in our study.  D’oraita the farmer may take even a tiny amount of the produce as t’rumah g’dolah.  D’rabanan, though, the farmer must designate between 1/40th and 1/60th of the crop.  The farmer gives the t’rumah g’dolah to a cohen of the farmer’s choice.  The cohen and his family may eat or use the t’rumah g’dolah, but the people may only eat it if they and the food are tahor.

            The second tax is ma’aser rishon, the first tithe, required by mitzvah #395.  As you might expect, ma’aser rishon is 1/10th of the remaining produce.  The farmer gives the ma’aser rishon to a levi of the farmer’s choice.

            The levi who receives ma’aser rishon has to designate 1/10th of the ma’aser rishon he received to give to a cohen of the levi’s choice.  This is called “t’rumat ma’aser.”  The levi must take t’rumat ma’aser from the best available produce.

            After the farmer designates t’rumah g’dolah and ma’aser rishon, the farmer must designate one more level of taxes, but those taxes differ in different years of the shmittah cycle.  During shmittah itself the farmer designates no taxes at all since the farmer is forbidden from harvesting crops for future use and since all of the produce is available to everyone, including the people who would normally receive the taxes on produce. 

In years 1, 2, 4 and 5 of the shmittah cycle, the farmer designates 1/10th of the remaining produce as ma’aser sheni.  We discussed ma’aser sheni when we talked about neta r’vai’i, the fruit produced in the fourth year of a tree’s growth.  Like neta r’vai’i, the owner brings the ma’aser sheni to Jerusalem where it is eaten by the farmer and those the farmer chooses to share it with.  If taking the food to Jerusalem is inconvenient, the farmer can redeem the ma’aser sheni for money, bring the money to Jerusalem, buy food with the money and eat the food in Jerusalem.

            In years 3 and 6 or the shmittah cycle the farmer designated 1/10th or the remaining produce as ma’aser ani.  The farmer gives the ma’aser ani to poor people.


            These taxes apply to produce grown by Jews in Israel, and they apply whether or not the Temple is functioning.  (Our author will discuss the definition of “Israel” for this purpose and whether the current tax obligation is d’oraita or d’rabanan in mitzvah/essay #507.)  The taxes must be dealt with even if produce grown by Jews in Israel is exported.  But the system works differently now than in earlier times.  And the system applies differently for produce that is actually tevel d’oraita, subject to these taxes by Torah law, than for produce that is tevel d’rabanan.  The rules work differently for produce that may or may not be tevel, for example commercial produce from which taxes may or may not have been taken by the farmer or processor.  The exact process for dealing with these taxes is complex, but we will give a brief overview of how each tax works now.  This procedure is based on Rabbi Shaul Reichenberg’s pamphlet The Procedure for Setting Aside T’rumot and Ma’asrot, Feldheim, 1991.

            T’rumah must be kept tahor since cohanim and their families must be tahor to eat it.  But now everyone is tamei.  Someone taking t’rumah now should designate a tiny amount of the produce and either bury it or wrap it and throw it in the garbage.

            Ma’aser rishon need not be kept tahor.  But giving the ma’aser rishon to a levi is a problem because we no longer have reliable lineage records for cohanim and levi’im.  So the farmer designates 1/10th of the remaining produce as ma’aser rishon.  If a levi who could prove his lineage came to claim it, the levi would get it.  Pending that, though, the farmer may eat it or use it or give it to someone who thinks he is a levi.  If a levi who is entitled to it ever show up the farmer can pay the value of the ma’aser rishon in money.

            Before using the ma’aser rishon, though, the owner should take off 1/10th of the ma’aser rishon to be t’rumat ma’aser.  Like t’rumah, the t’rumat ma’aser should be wrapped and thrown away or buried.

            In appropriate years, the owner designates 1/10th of the remaining produce as ma’aser sheni.  The owner redeems that produce against a designated coin and may then eat the produce. 

            In appropriate years, the owner designates 1/10th of the remaining produce as ma’aser ani.  The owner may give the food or its value to poor people.


            Mitzvah #395 mandates that the farmer take ma’aser rishon and give that to a levi.  The author’s shoresh applies to all of the items ordinary Jews give to levi’im or cohanim.  Levi’im and cohanim are on a different economic path from the rest of the Jews.  As we will learn soon, the levi’im get cities rather than a portion of Israel’s agricultural land.  The rest of the Jews give various kinds of gifts to the levi’im and cohanim; the cohanim get 24 different gifts from other Jews.  But the Jews who give most of those gifts can give them to cohanim the giver choses, so the cohanim and levi’im who are popular get more support. At its best this can encourage mutual gratitude and support. This might be a kind of meritocracy, but it also might encourage favoritism.  The Germara deals with questions of what sort of favors a cohen can do for another Jew to motivate the other Jew to give his priestly gifts to that particular cohen.

Since the cohanim and levi’im had the exalted job of serving in the Temple the rest of the Jews helped provide them with an honorable living.  That is analogous to a human king’s retainers, whose ordinary needs are provided by others so the retainers can concentrate on serving the king.  It might seem unfair that the levi’im get more than a 1/12th share of the harvest, as they would get under an even distribution, but they do sacred work and that makes it appropriate for them to get a larger share of the total wealth.

            In the shoresh of mitzvah #396, which obligates levi’im to give t’rumat ma’aser, the author explains that although the entire tribe of levi, levi’im and cohanim, are called to spiritual service, the cohanim are directly responsible for the service in the Temple whereas the levi’im assist with that task.  Therefore the cohanim get twenty-four different gifts from other Jews, much more than the levi’im get.  The levi’im are required to give a portion of their ma’aser rishon to the cohanim to remind the levi’im that the levi’im received support from the rest of the Jews because of their service to God but that the cohanim had a greater, superior role.    But requiring the levi’im to share their bounty with the cohanim had another advantage for the levi’im.  Like the rest of the Jews, the levi’im will get credit for sharing their bounty, making them even more deserving of the goodness God want to bestow on all.

            The author follows this notion with an unusual proposition:  someone who pays the mandated taxes in full will be blessed with wealth by God.  We have not seen our author take a stand like this before, assuming that human behavior can “force God’s hand.”  Further, the author says, under most circumstances we are forbidden to set up a test for God.  We ought not say to ourselves, “I will behave especially well, and we’ll see if God rewards me or not.”  Normally that is a dangerous proposition because it assumes we can know whether our experience reflects God taking special notice of us, or is just the natural world running its course.  If we assume we know how God will respond to our behavior at any given moment, if we do not get the expected response we will assume God is purposely arranging the outcome, when God may just be letting things unfold according to the way the world generally runs.  We will see mitzvah #424 forbids just such “tests.”  The author says the mitzvah of ma’aser is an exception, but he doesn’t say why. He will discuss it a bit more in mitzvah/essay #424.

            T’rumah, the first of the taxes on produce, goes to a cohen; the t’rumah and the people who eat is must be tahor.  Ma’aser rishon goes to a levi; once the levi takes off t’rumat ma’aser, neither the ma’aser rishon nor the people who eat it need to be tahor.

            The author quotes the midrash halachah for three restrictions on these agricultural taxes. The taxes on produce apply only to plants grown for human food, not to plants grown for other purposes such as animal food, dyes, etc.  The taxes apply only to plants grown in the ground, not to plants grown another way, such as hydroponically.  And the taxes apply only to produce that is specifically planted and tended, not on produce that grows wild without agricultural intervention.

            The author describes a dispute about whether which plants are subject to these taxes d’oraita and which are subject to these taxes d’rabanan.  Everyone agrees that grain, grapes and olives are taxed d’oraita.  One opinion holds that vegetables that meet the three criteria are taxable d’rabanan, but other plants that meet the criteria, like farmed domestic fruit trees, are subject to taxes d’oraita.  This is based on a midrash halalchah that our author cites to the Sifre. (According to the translator our editions of the Sifre do not have this passage, but we have the passage in Midrash Tanna’im.) The midrash relies on Deut. 18:4, which discusses t’rumah and specifies grain, wine and oil.  Those three items have characteristics in common, which the midrash identifies with the three criteria we just explained.  Any plant that meets those criteria is taxed d’oraita, and only other produce that meet those criteria are taxed d’rabanan.

            The other opinion takes the verse at face value.  D’oraita these taxes apply to grain, wine and oil.  Other plants that meet the criteria in the midrash are taxed d’rabanan.  But that leaves a question about the midrash.  The midrash seems to derive the three criteria from a Torah verse.  If those rules come from a Torah verse, it would seem the rules are d’oraita.  But this second opinion takes the rules as defining a rabbinic extension.  Our author explains that the midrash uses the verse not as the Torah defining the mitzvah by way of the three criteria, but rather using the verse as an “asmachta,” a hint encouraging the rabbis to extend the basic rule in a particular direction.  As we said earlier, midrash halachah uses source verse in a variety of different ways.

            These taxes apply d’oraita only to a farmer harvesting for his or her own use; commercial crops as subject to these taxes d’rabanan.  A consumer who buys produce processed to a specified point need not take taxes d’oraita but must take taxes d’rabanan.

            Most of the rules of ma’aser also apply to t’rumah.  Ma’aser should be designated from each year’s harvest separately, and taxes should be designated from each type of crop separately.  The farmer should designate tax from produce that is subject to taxation, not from other produce.  The farmer may designate ma’aser from produce in the farmer’s presence that also represents ma’aser from produce located elsewhere, but for t’rumah the farmer ought only designate t’rumah from produce that is present. 

 The author goes into great detail about the rules for agricultural taxes, especially about when various crops are ripe enough for the tax obligation to kick in, but that is more detail than we will review.  Until a given crop reaches a designated point of ripeness, that crop is not subject to tax and the farmer may freely use the produce.  Once the crop reaches that designated point of ripeness but before the crop is harvested the farmer may take the produce only one item at a time for immediate use. 

After the crop is harvested the farmer may not use it at all until taxes have been designated.  The author cites Rambam for the opinion that the farmer is not punishable for using the produce unless the produce was brought into an appropriate building through the gate.  If the produce is still outdoors or if the produce was taken into the building in an unusual way, for example through the roof, the farmer who uses the produce is not punishable.  The author cites the Talmud for a way for a farmer to circumvent the obligation to designate taxes by harvesting the crop in little bits before it is fully ripe.

The obligation to designate these agricultural taxes and give them to the appropriate recipient applies not only to ordinary Jews but also to cohanim and levi’im.  A cohen or levi separates the taxes and gives them to a qualified recipient.  Thus, a levi who takes ma’aser rishon may then keep it, in effect giving it to a levi, or give it to a different levi.

Mitzvah #396 requires levi’im to set aside 1/10th of the ma’aser rishon they receive and give that to a cohen.  Perforce sometimes the amount of ma’aser rishon is fairly small, so the amount of t’rumat ma’aser is very small, and our author explains that if the amount of t’rumat ma’aser is small enough the levi need not bother giving it to a cohen.  Rather, the levi should burn it.


Mitzvot #397 – 399 deal with the paradoxical institution of “parah adumah,” the “red female cow” that is part of the ceremony when someone who was tamei because of tumat meit became tahor. 

            We studied tumah and taharah earlier, and learned that tumat meit, the “avi avot hatumah,” the “great grand-dad of tumah,” is in some ways stricter than other forms of tumah.  Most types of people who are tamei become tahor through immersion in a mikveh.  But for severe forms of tumat meit, the tamei person undergoes a week-long ritual that involves being sprinkled with water in which the ashes of a sacrificial red female cow have been dissolved.  That water is called “mei niddah.” (The author says that “niddah” in this context means sprinkling.) But those who help burn the cow or who come in contact with the water after it has been mixed with the ashes become tamei.

            Mitzvah #398 requires us to follow the appropriate rules regarding tumat meit.  Our author refers us back to his prior discussions of related matters for more detail.  Mitzvah #399 requires someone who is tamei from contact with a corpse to use the mei niddah during the process of becoming tahor.  The author does not define this mitzvah as precisely as he usually does. 

            Mitzvah #397 requires us to burn a qualified red female cow and use the ashes in the process of someone who is tamei meit to become tahor.  The process is complex.

            The first challenge is to locate a female cow all of whose hairs are red at the roots.  If the tips of some hairs are another color the hair can be trimmed.  But even two hairs of a different color at the roots disqualify the animal.  The cow must be three to four years old, although it might be older.  The cow is disqualified if it has a mum.  It is also disqualified if it has been worked, subject to any physical restrictions not necessary for its care or protection.  When such a cow is identified, the Temple purchases it with Temple funds from the account that held the half-shekel donated by each adult male Jew each year, the same fund that purchased other communal sacrifices.  If the cow developed a mum after the Temple purchased it, it could be redeemed and reverted to the status of an ordinary animal.

            The cow was then taken out to a field where it was slaughtered and burned.  The people who did the burning had to be tahor, but anyone who helped burn the animal became tamei.  Those who helped with the fire, though and those who handled the collected ashes after the burning was complete remained tahor.

The ashes were mixed with water from a flowing steam gathered in a vessel.  Any competent adult Jew could gather the water, and that person could even be paid to do it. But the person gathering the water and bringing it to the Temple had to avoid being distracted by other tasks.  Once the ash was mixed with the water, the person handling it could not be paid for the work, but if the person got distracted the mei niddah was not disqualified.  The mei niddah was sprinkled on the person who was tamei by contact with a corpse in the Temple on the third and seventh day of the week-long purification ritual.

According to Mishnah Parah, the particular cohanim who actually burned the cow were subject to an even stricter rubric.  Like the cohen gadol before yom kippur, a cohen who was going to burn the red cow went through a week of preparation isolated from wife and family.  Those cohanim had to be sprinkled with mei hattat each day by someone who was himself tahor.  For fear that the person doing the sprinkling might be tamei but not know it, the people who sprinkled the mei niddah had to be someone who had never been tamei through tumat meit.  It took extraordinary arrangements for these to be someone who had never been tamei through tumat meit.  Recall that if someone passes over a grave becomes tamei unless the person is separated from the grave by a space that meets the halachic requirements of a “tent,” an independent structure.  Also recall that stone vessels cannot become tamei.  To arrange for people who never had become tamei by contact with a corpse, special stone houses were built in Jerusalem directly on the bedrock.  Pits were dug under the houses to make sure no graves were present.  Mothers pregnant with children who would be cohanim would give birth in those houses and raise their sons there.  When the children were needed to do their part in the parah adumah ceremony they immersed in a mikveh just to be sure they were not tamei.  They went to do their job in carts specially constructed so the passengers would not become tamei even if the cart drove over a grave.  There was a feature of the cart that constituted a tent.  The boys would go to the stream at Shiloh to get water to mix with the ashes.  They could go down to the stream without fear of becoming tamei because corpses were not buried near streams.  The boys used stone cups to retrieve the water; the stone cups could not become tamei.  Those boys were then qualified to sprinkle the mei niddah on the cohanim who were going to burn the parah adumah.

Even with all that detail the author lists aspects of this process he has not described in detail:  how the cow was burned, how the ash was stored, how the water was combined with the ash, and the actual process by which a person who was tamei by contact with a corpse became tahor.

The author says the parah adumah ceremony happened nine times starting with Moses and ending during the Second Temple period.  What we know about the parah adumah ceremony is from the Mishnah, and the authors might have known the ceremony from experience.  But it is hard to imagine the part of the process involving children raised in specially designed houses actually happening.     

            This whole rubric presents our author an insurmountable challenge in his enterprise of articulating a shoresh for each mitzvah.  The red cow is part of the sacrificial ritual but is killed and processed outside the Temple, creating the possibility that it would appear as a ritual recognizing demons.  The ashes of the red cow make someone who is tamei from contact with a corpse tahor, but the ashes also make those who handle them tamei.  We have seen the author hesitate to articulate a shoresh for tumah and taharah, saying that it must be good for us although we do not really know how it is good for us.  Here the author is frankly stumped.  But he is not the only one.  The author cites the midrash for the notion that even Solomon, the wisest of all people, did not understand a reason for this.  Moses knew but he was the only one who does.  The author reminds us there are many natural processes we do not understand.  Just as certain plants make us ill under some circumstances and heal us under other circumstances, it is possible that certain behavior is sometimes bad for us spiritually is at other times good for us spiritually.  But the author admits this really doesn’t explain much, calling the parah adumah rubric a “great mystery.” But at the end of the shoresh section of mitzvah #397 he indicates how proud he is of the enterprise of trying to articulate a shoresh for each mitzvah.

            This mitzvah applies to the Jewish community as a whole when the Temple is functioning.  Because the Passover ritual is so philosophically important and because someone who is tamei may not eat the Passover sacrifice, the Biblical passages describing the parah adumah ritual are read in the synagogue on Shabbat several weeks before Passover.