Terumot and Ma'aserot from Jewish Produce in Closed Military Zones

Answer

There are several different scenarios regarding whether terumot and ma'aserot are obligatory or if it this produce is considered ownerless (hefker) and therefore exempt:

• Fruit in a closed military zone

• Fruit in a closed military zone in an area permitted for harvesting by the IDF

• Fruit that the owner permitted soldiers to harvest

• Trees uprooted or fruit fallen to the ground

• Fruits given to soldiers after harvest

Definition of a closed military zone

The military does not have ownership of the land, but it can restrict entry to certain areas. Therefore, ownership of the trees and fruits remains the farmer's. Furthermore, the compensation regulations paid by the state states that farmers are compensated for direct damages (wages) and indirect damages (unharvested yield), but the fruit remains the farmer's.

This article discusses agricultural areas belonging to Jews. In another article, we can discuss agricultural areas in the Gaza Strip.

In the southern Gaza Envelope there are primarily vegetables and citrus fruits, while in the northern part, mainly deciduous orchards and citrus fruits are grown.

Basis of ownerless status

The Mishnah (Challah 1:3) states: "These are obligated in challah and exempt from tithes... and [produce that is] ownerless." The Yerushalmi (Challah 1:3) explains the verse: "Then the Levite, who has no hereditary portion with you," (Devarim 14:29): what you have but he does not - you are obligated to give him, but if it is ownerless, your hand and his hand is equivalent regarding it."

That is, giving terumot and ma'aserot is obligated only from what you have but not the poor or Levite; ownerless produce belongs equally to both of you.

Likewise, Shulchan Aruch (YD 331:16) states: "Ownerless [produce] is exempt from terumot and ma'aserot." The Shach explains that this is because hefker produce has no owner.

Partial ownerlessness

The Mishnah (Peah 6:1) discusses whether if a person only makes produce ownerless for the poor, it is considered ownerless: "Beit Shammai hold it is while Beit Hillel argue "it is not ownerless until it available equally to the rich and to the poor."

The Yerushalmi explains that Beit Shammai learn from the law of gifts to the poor (matanot aniyim) that produce earmarked for the poor is still considered hefker, while Beit Hillel learn from shemitah that it needs to be made ownerless even for the rich. Shulchan Aruch (CM 273:5) rules like Beit Hillel: "One who renders something ownerless only for the poor but not for the rich, it is not ownerless until it is made ownerless to all as during shemitah."

In the Yerushalmi, Rabbi Yochanan and Resh Lakish dispute regarding Beit Hillel's opinion: what if it is made ownerless to a Jew and not to a non-Jew, to a person and not to an animal, to the poor of one city and not to the poor of another city. Noda BaYehudah (EH 59) and the Birkei Yosef (YD 331:7) understand that the law follows Resh Lakish, that earmarked hefker list not ownerless, proving it from the words of the Shulchan Aruch above.

Conclusion

In light of the above, if a farmer only permits soldiers to harvest, but if someone would come with a truck to harvest the whole field, he would refuse - then halachically it is not considered ownerless, and the soldiers must separate terumot and ma'aserot before eating. Similarly, if it is a closed military zone, even if the army permits harvesting - the ownership of the produce remains with the farmer, and therefore there is an obligation to separate terumot and ma'aserot.

All of the above is true when we know that the farmer permits soldiers to eat his produce. If not, taking produce is considered theft.