The Torah’s mitzva is to give ma’aser rishon to a levi, not to a kohen. Although kohanim are also members of the tribe of Levi, and when kohanim own tevel produce they may keep the ma’aser rishon after separating it, and then separate terumat ma’aser from it for themselves, nevertheless, when a Yisrael owns produce, he must give ma’aser rishon specifically to a levi. This follows R. Akiva in Yevamot 86a–b, Yerushalmi, Ma’aser Sheni 5:3, and MT, Laws of Ma’aser 1:1.
At the beginning of the Second Temple period, Ezra called upon the levi’im to ascend to Eretz Yisrael, though only a few did so. They numbered less than one-tenth of the kohanim and less than one percent of all those who ascended. Ezra therefore instituted a penalty against the levi’im: people would no longer be required to give them the entire ma’aser rishon, which amounts to about nine percent of the total produce. After all, ma’aser rishon is given to the levi’im to support them in their service, as it says: “To the descendants of Levi, I hereby give every tithe in Israel as an inheritance, in exchange for their service that they perform” (Bamidbar 18:21), not in order to make them wealthy. It was therefore established that the ma’aser could also be given to kohanim, or directed to other purposes as the beit din saw fit. The beit din had authority to institute this penalty because ma’aser rishon is monetary property and has no sanctity. The beit din could therefore expropriate it from the levi’im and direct it wherever it saw fit.
The Yerushalmi (Ma’aser Sheni 5:5) explains that, at first, they ordained that the ma’aser be brought to the Temple treasury. One-third was given to the kohanim and levi’im in Jerusalem, one-third was kept in the treasury for communal needs in Jerusalem, and one-third was distributed to the poor and to Torah scholars in Jerusalem. It appears that as Jewish life spread throughout the Land, people once again distributed ma’aser rishon locally. However, because of Ezra’s penalty, they no longer gave it only to levi’im; they also gave it to kohanim (Yevamot 86b, based on Tosafot, Rosh, and others).
Some authorities maintain that Ezra’s penalty was annulled after the destruction of the Second Temple. Since then, ma’aser rishon must again be given specifically to levi’im, and this is the proper practice (Beit Yosef and SA YD 331:19, based on MT, Laws of Ma’aser 1:4).[5]
[5]. R. Elazar b. Azarya maintains that, on a Torah level, ma’aser rishon may be given to kohanim as well, since they too belong to the tribe of Levi, and the Torah sometimes refers to kohanim as “Levites.” R. Akiva, however, maintains that the ma’aser must be given specifically to a levi. This is the accepted halakha, in keeping with the general rule that the halakha follows R. Akiva when he disputes one colleague (MT, Laws of Ma’aser 1:1; Mahari Kurkus to MT, Laws of Ma’aser 1:1; Tosafot Yeshanim and Meiri to Yevamot 86b; Vilna Gaon, Bi’ur ha-Gra, YD 331:52).
The Bavli (Yevamot 86b) explains that at the beginning of the Second Temple period, Ezra penalized the levi’im with respect to ma’aser rishon, because they did not go up to the Land. As Ezra says: “I gathered them to the river that comes to Ahava, and we camped there for three days. I examined the people and the kohanim, but I found none of the sons of Levi there” (Ezra 8:15). This does not mean that no levi’im went up at all. Ezra 3:8 mentions levi’im who had returned, and Neḥemya 10:29, describing events shortly after Ezra, mentions levi’im as well. Several passages in Neḥemya also state that ma’aser was given to levi’im (Neḥemya 10:38; 12:47; 13:13). Rather, the problem was that very few levi’im returned in comparison with the kohanim. The kohanim who came up with Zerubavel numbered 4,289, while the levi’im numbered only 360 (Ezra 2:36–42; Neḥemya 7:43–45; see also Neḥemya 11:10–18, which requires further study).
In the Torah’s original framework, the levi’im would receive about nine percent of the produce, while the kohanim would receive about three percent. Against this background, Ezra’s penalty is clear. The small number of levi’im, who made up less than one percent of those who returned, could not reasonably receive the entire ma’aser rishon. The purpose of the ma’aser is to support them in their service, not to turn them into the wealthy class of the Land.
The Yerushalmi (Ma’aser Sheni 5:5) explains that ma’aser rishon was brought to Jerusalem and divided into three portions: one-third for kohanim and levi’im, one-third for communal needs, and one-third for the poor and Torah scholars. The Bavli (Yevamot 86b), however, records a dispute as to whether, when kohanim are impure, the ma’aser is nevertheless given to them, or instead to the poor. It appears that these passages are not contradictory but complementary: the Yerushalmi refers to the main arrangement, in which the ma’aser was brought to Jerusalem, while the Bavli discusses a person who had difficulty bringing the ma’aser to Jerusalem, and the dispute concerns whom he was instructed to give it to instead.
Later, as Jewish settlement expanded throughout the Land, people were no longer expected to bring ma’aser rishon to Jerusalem. Each person distributed it locally. At this stage, Ezra’s penalty continued to affect the distribution of ma’aser rishon, but Rishonim disagree concerning how. According to many Rishonim, the penalty meant that ma’aser rishon no longer had to be given exclusively to levi’im; it could be given to kohanim as well. This weakened the status of the levi’im, since they were no longer its sole recipients (Tosafot; Tosafot Rosh, Yevamot 86b; Hagahot Ya’avetz to Yevamot 86b; Ramban, Rashba, and Ra’ah to Bava Batra 81b). Rambam understands the penalty differently: kohanim were not merely eligible to receive the ma’aser; they were given preference. Nevertheless, if no kohen was present, or if a levi was in great need, the ma’aser was given to the levi (MT, Laws of Ma’aser 1:4, based on Radvaz to MT, Laws of Ma’aser 1:4; see Kesef Mishneh to MT, Laws of Ma’aser 1:4).
This disagreement also affects the law today. According to Tosafot and most Rishonim, ma’aser rishon may still be given to kohanim, since Ezra’s penalty was never annulled. Rambam, followed by SA YD 331:19, maintains that today the ma’aser must once again be given specifically to a levi, since Ezra established the penalty only for his own time – or, according to many, only for the duration of the Second Temple period – and it later lapsed. In practice, one should give ma’aser rishon specifically to a levi, in accordance with Rambam and SA. If it was given to a kohen, however, the obligation is nevertheless fulfilled, since Tosafot and most Rishonim permit this, and ma’asrot today are rabbinic in force. A kohen who wishes to be stringent should pass it on to a levi.
