On exemption and avoidance of the terumot and ma‘aserot obligation
The Gemara cites how "later generations" found loopholes to exempt their produce from tithing. Is it permissible to use artifice (ha'aramah) to exempt produce from the terumot and ma'aserot obligation?
Introduction
Is there an obligation to create the circumstances that generate a halachic obligation to separate terumot and ma‘aserot?
This question was raised by Rabbi Shlomo Kluger (Chochmat Shlomo, YD §28:18): “I have been uncertain whether, if a person has some means through which he may obligate himself in a given mitzvah—and also has a means to exempt himself from that mitzvah—should we say that he is obligated to bring himself into the situation of the mitzvah, as reason suggests, or perhaps the opposite: that doing so falls under the category of ‘one who is exempt yet performs,’ who is called a hedyot (an unlearned simpleton).”
This broad topic—of exempting oneself or avoiding halachic obligations—has been discussed extensively. I wish here to focus specifically on terumot and ma‘aserot, and to highlight the unique status of their obligation compared to other mitzvot.
A. Early vs. Later Generations
The Gemara (Berachot 35b; Gittin 81a) states:
Rabba bar bar Ḥana said that Rabbi Yoḥanan said in the name of Rabbi Yehuda, son of Rabbi El’ai: Come and see that the latter generations are not like the earlier generations. In the earlier generations, people would bring their fruits into their houses through the main gate in order to obligate them in tithes. The later generations bring their fruits through roofs, through courtyards and through enclosed courtyards, in order to exempt them from tithing.
A similar distinction appears in the Yerushalmi (Ma‘aserot 3:1):
They would bring the basket in through the back of the roofs. Rabbi Yehudah b. Rabbi Ilai saw them and said: See the difference between you and the early ones.
One may question the meaning of the comparison: Does it express criticism of the later generations for improperly seeking to avoid the mitzvah, or is it merely describing differing practices—whereas the early generations acted with extra piety by choosing to obligate their produce, though in principle one may enter produce through roofs or courtyards and be exempt, as the later generations did?
The Meiri (Berachot 31) explains that although brining produce in through the roof exempts one of the tithal obligation, doing so intentionally to avoid the obligation is prohibited: "You must know that it is forbidden to engage in artifice (ha'aramah) by bringing it in through roofs or enclosures in order to exempt it from tithes."
Rabbi Avraham Danzig (Nishmat Adam, Pesach 8) similarly inferred from the wording of Chazal that they never said “it is permitted to enter” or “permitted to use artifice,” implying that although one technically becomes exempt, the act is nevertheless prohibited. Thus, the later generations are inferior to the earlier ones.
From these sources Rabbi Shlomo Kluger concluded (Chochmat Shlomo, YD 28:18): “One is obligated to bring himself, as reason suggests, into a mitzvah situation.”
B. Different categories of mitzvot
This conclusion—derived from terumot and ma‘aserot—that one must bring oneself into obligation—is difficult in light of other mitzvot where one may seemingly exempt himself. The first example is the mitzvah of kisui ha-dam (covering the blood). Chullin 85b states that one who desires to use the blood of a bird may exempt himself: “One who slaughters and requires only the blood is obligated to cover it. What should he do? He should stab it or tear out [its windpipe and gullet], so that he becomes exempt from covering.”
C. The unique status of terumot and ma'aserot
It appears that terumot and ma‘aserot are unique. In most mitzvot, one may choose not to create the conditions for obligation—though in a “time of divine wrath” one may be punished. But in the case of terumot and ma‘aserot, it may be forbidden to avoid the obligation.
The Mishnah (Avoda Zara 1:8) prohibits leasing fields to non-Jews, with the rationale that that this exempts the field from the obligation of terumot and ma‘aserot. The Ritva (Avodah Zarah 21a) adds: “It is forbidden to remove the sanctity of the Land.”
D. Source and authority of the obligation
It seems to me that the rationale for why the Torah prohibited benefit from tevel that results in its consumption, whereas other forms of benefit are permitted, is that when it comes to other types of benefit, one may still fulfill the mitzvah of separating terumah afterward; but with a benefit that consumes it entirely one cannot fulfill the mitzvah. Therefore, the Torah forbade it.
With regard to the mitzvah of separating terumot and ma‘aserot—since Scripture states aser te’aser, a doubled expression—this indicates a biblical obligation to eat from the produce in a manner that brings oneself into obligation.
Conclusion
The mitzvah of separating terumot and ma‘aserot stands out both as a central mitzvah among the land-dependent mitzvot and as a unique mitzvah from which one may not exempt oneself. It may even be prohibited to attempt circumventing the obligation. In this discussion we sought to trace the source and halachic authority of this exceptional rule, which distinguishes terumot and ma‘aserot from other mitzvot.
For the original article in Hebrew, with complete references, see here.
