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
(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
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.