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Shekalim 3


QUESTION: We know that Beis Din has the prerogative to make someone's possession into Hefker ("Hefker Beis Din Hefker"). The Gemara asks whether the items which Beis Din makes into Hefker become Patur from Ma'asros. The Gemara cites a Mishnah to prove that the Hefker of Beis Din is effective even to be Patur from Ma'asros. The Mishnah (Pe'ah 5:1) states that if a landowner piles up a pile of grain on top of an area of his field from which poor people had not yet collected Leket, then the poor people are entitled to take the entire bottom layer of produce as Leket (much more than they would have been permitted to take had the landowner not covered it up).

Reish Lakish says that this Mishnah is according to Beis Shamai, who holds that "Hefker l'Aniyim Hefker" -- when one makes something into Hefker, it does not need to be accessible to both poor people and rich people to take it. Even if it is only Hefker for poor people to take, it is still considered Hefker and it is Patur from Ma'asros. According to Beis Hillel, though, the poor people are required to separate Ma'aser from the produce, and it is not considered like Leket (which is Patur from Ma'asros even though it is only accessible to poor people, due to a Gezeiras ha'Kasuv).

Rebbi Yosi argues and says that even according to Beis Hillel, the produce is Patur from Ma'asros. As a *penalty* ("Kenas") to the landowner, the Rabanan made these crops Hefker through their power of "Hefker Beis Din Hefker" and thereby exempted them from Ma'asros just like Leket.

What is the logic of Reish Lakish? Why does he say that it is not Hefker? If he maintains that it is not a penalty, then why are the poor people entitled to take the entire lower level of crops? And if he maintains that it is a penalty, then even Beis Hillel should agree that "Hefker Beis Din Hefker" works to make it Patur from Ma'asros!


(a) RABEINU SHLOMO SIRILIYO writes that according to Reish Lakish, since the Rabanan made the crops Hefker only for poor people, this "Hefker Beis Din" is *not* Hefker, because "Hefker Beis Din Hefker" applies only when Beis Din makes it Hefker to *everyone*, poor and rich alike. Rebbi Yosi argues and says that the Rabanan *did* make it Hefker to everyone, but they told the owner of the field to see to it that it goes to poor people (since he was trying to prevent them from taking their rightful due).

(b) The KORBAN HA'EDAH explains that Reish Lakish holds that all of the crops beneath the pile go to the poor people because of a Safek, since there is a doubt which part was Leket and which part was not. It is because of this Safek that it was instituted that the *landowner*, on his own, must give all of the lower level of crops to the poor people as a penalty. It is not Hefker of Beis Din.

Rebbi Yosi says that it is not a doubt what goes to the poor people, but it is a Kenas (penalty) enacted by the Rabanan. As such, it works due to the power of Beis Din to make something Hefker. Since it works because of Hefker Beis Din, it is Patur from Ma'aser. (According to this approach, when Beis Din makes something Hefker, it is considered Hefker even if it was only made Hefker for poor people. This is in contrast to when the *owner* makes it Hefker; his Hefker works only when it is made Hefker to both poor people and rich people.)

(c) The TALMID SHEL RAV SHMEUL BAR SHNEUR explains that Reish Lakish understood the Mishnah to mean that the crops are Patur from Ma'aser because the Rabanan made it Hefker for the poor people, and Hefker of Beis Din is Patur from Ma'aser. However, this is only true according to the view of Beis Shamai, says Reish Lakish, for it is Beis Shamai who holds that it is Patur from Ma'aser even when it is made Hefker for poor people only -- by the Rabanan. Rebbi Yosi argues and says that there is no indication that it is Patur from Ma'aser; perhaps the Mishnah in Pe'ah means that it goes to the poor people, but they must *separate Ma'aser* from it! If so, the Mishnah there is according to the opinion of Beis Hillel, who maintains that when even Beis Din makes something Hefker only for poor people, it is not exempt from Ma'aser.

Rebbi Yosi, then, is refuting the proof from the Mishnah, saying that there is no evidence from there that when Beis Din makes something Hefker, it becomes Patur from Ma'aser, since the poor people are obligated in Ma'aser. (The text of the Gemara of the Talmid Shel Rav Shmuel bar Shneur contained the words "d'Iy k'Beis Hillel Aniyim Ochlin u'Me'aserin" at the *end* of *Rebbi Yosi's* statement). RABEINU MESHULAM also explains that according to Rebbi Yosi, the poor people will have to separate Ma'aser from these crops.


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