Produce grown by a non-Jew in Eretz Yisrael is governed by two principles. First, even when a non-Jew owns land in Eretz Yisrael, the land retains its status regarding the land-dependent mitzvot. Second, the obligation of terumot and ma’asrot takes effect only at gmar melakha, when the produce’s processing is completed.
Therefore, if a non-Jew owns land in Eretz Yisrael, grows produce there, picks it, and completes its gathering, the produce is exempt from terumot and ma’asrot (Bekhorot 11b; MT, Laws of Terumot 1:11). But if he sells the produce to a Jew before gmar melakha, and the Jew completes the gathering, terumot and ma’asrot must be separated from it. Although the produce grew in a non-Jew’s field, it reached the stage of obligation while in Jewish possession.
As explained in the note, this obligation concerns separation. The actual giving of ma’aser rishon to a levi and ma’aser ani to a poor person depends on how much of the produce grew while in Jewish possession.[15]
In cases involving workers, the key question is who completed the produce’s gmar melakha. If non-Jewish workers picked produce from a Jewish-owned field and completed its gathering, one must separate terumot and ma’asrot, but the obligation is rabbinic. If Jewish workers picked produce from a non-Jewish-owned field and completed its gathering, most authorities likewise require one to separate terumot and ma’asrot. Since some authorities exempt such produce, however, one separates without a berakha. [16]
[15]. The Yerushalmi records a dispute among the Tanna’im about whether a non-Jew’s ownership of land in Eretz Yisrael can exempt the produce grown there from land-dependent mitzvot, such as terumot and ma’asrot (Yerushalmi, Demai 5:8). According to R. Meir, it cannot: even after the non-Jew acquires the land, the produce remains subject to the mitzvot. According to R. Yehuda and R. Shimon, it can: the non-Jew’s ownership exempts the produce. The Yerushalmi rules explicitly that a non-Jew’s ownership does exempt the produce. This is also the view of R. Ovadia of Bartenura to Pe’a 4:9 and Demai 5:9, R. Ḥananel, and Arukh.
The Bavli, however, points in a different direction. It records a parallel dispute among the Amora’im: Rabba maintains that a non-Jew’s ownership does not exempt the produce, while R. Elazar maintains that it does (Gittin 47a). The Bavli appears to follow Rabba’s view. Indeed, some opinions in a baraita maintain that even when the produce’s gmar melakha was completed by the non-Jew, it remains subject to terumot and ma’asrot (Menaḥot 66b), and some authorities ruled accordingly (Raavad to MT, Laws of Terumot 1:13).
In practice, the halakha follows a middle approach. If a Jew completes the produce’s gmar melakha, the non-Jew’s ownership of the land does not exempt the produce, and one separates terumot and ma’asrot with a berakha. If, however, the non-Jew completes the gmar melakha, the produce is exempt, following Rabba’s position in Gittin 47a. Rambam rules this way as well (MT, Laws of Terumot 1:10–11). In Tzfat, they even placed a ban on one who separated terumot and ma’asrot from non-Jewish-grown produce whose gmar melakha was also completed by a non-Jew (Kesef Mishneh to MT, Laws of Terumot 1:10–11). Thus, when we say that a non-Jew’s ownership does not exempt produce grown in Eretz Yisrael from terumot and ma’asrot, we mean that it does not exempt it when a Jew completes the gmar melakha. Nor should one argue that, because some authorities exempt such produce, one should separate without a berakha out of doubt; the accepted practice is to recite the berakha (Yabi’a Omer 5, YD 28:1).
As explained above, when a Jew completes the gmar melakha, the produce requires terumot and ma’asrot. A separate question, however, is whether the monetary gifts must actually be given to the levi and the poor person. Teruma gedola and ma’aser sheni are separated as usual. Ma’aser rishon and ma’aser ani are also separated, but they are not given to the levi or the poor person. Since the Jew bought the produce from a non-Jew, he may say to them: “I come in place of someone from whom you could not have claimed anything.” In other words, by buying the produce before gmar melakha, he caused the requirement of separation to apply, but he did not assume a monetary obligation to give gifts that the levi and the poor person could not have claimed from the non-Jew. Since he need not give ma’aser rishon to the levi, he also need not give terumat ma’aser to a kohen for free. Rather, he separates the terumat ma’aser and sells it to a kohen for its value (Bekhorot 11b).
If a Jew bought the fruit while it was still growing on the trees, the law depends on how much of the fruit developed under Jewish ownership. If he bought it before it reached onat ha-ma’asrot, he separates and gives the gifts in the usual way. If he bought it after it had already reached onat ha-ma’asrot, he separates teruma gedola and ma’aser sheni as usual. He also separates ma’aser rishon and ma’aser ani, but gives them only in proportion to the part of the fruit that grew while in his possession. For example, if half of the fruit’s weight developed after he bought it, he gives half of the ma’aser rishon to the levi and half of the ma’aser ani to the poor person. Likewise, he gives half of the terumat ma’aser to the kohen for free and sells him the other half for its value (MT, Laws of Terumot 1:11–12).
If a Jew bought grapes from a non-Jew after they had been harvested for winemaking, and the Jew then made them into wine, he must separate terumot and ma’asrot, since the gmar melakha was completed by a Jew, as explained above. If, however, the non-Jew grew the grapes for eating, completed their gathering, and only afterward the Jew bought them in order to make wine, some say that the Jew must separate terumot and ma’asrot (Radvaz; Shelah). Most authorities maintain that he need not separate, since the produce had already reached gmar melakha in the hands of the non-Jew (Mabit; Rashdam; R. Shmuel Garmizan; Admat Kodesh 1, YD 21).
[16]. The question in these cases is whether we follow the owner of the field or the worker who completes the produce’s gmar melakha. If the produce grew in a Jewish-owned field but a non-Jewish worker completed its gmar melakha, Meiri rules that the obligation is by Torah law, because he follows the owner of the field (Gittin 47a). Most Rishonim, however, follow the worker at the time of gmar melakha. Since the worker is a non-Jew, the obligation is rabbinic only (MT, Laws of Terumot 1:13; Ramban, Rashba, and Ritva to Kiddushin 41b; Or Zaru’a; Tosafot Rid; Ra’avya; Shelah; and others).
The reverse case is produce grown in a non-Jewish-owned field whose gmar melakha was completed by a Jewish worker. Several Rishonim follow the field owner and therefore exempt the produce from terumot and ma’asrot (Tosafot Rosh; Tur; this also seems to follow from Meiri cited above). Ḥazon Ish writes that one may rely on these opinions and exempt the produce (Demai 12:19).
In practice, however, one should separate terumot and ma’asrot from produce grown in a non-Jewish-owned field when a Jewish worker completed its gmar melakha. After all, in the parallel case of a Jewish-owned field, the overwhelming majority of Rishonim follow the worker who completes the gmar melakha. The same principle should apply here as well: when the worker is Jewish, the produce requires separation (Har Tzvi, Zera’im 1:17; Minḥat Shlomo 1:37). Still, since some authorities exempt it, one separates without a berakha (R. Yehuda Amichai, Ha-Torah Ve-ha-Aretz 8).
For this reason, the field owner should be careful not to separate terumot and ma’asrot from produce whose gmar melakha was completed by a non-Jewish worker on behalf of produce whose gmar melakha was completed by a Jewish worker, or vice versa (Mishpat Kohen 33). After the fact, if the mistake cannot be corrected, one may rely on the view that follows the field owner; since terumot and ma’asrot today are rabbinic, the separation from one group for the other is valid. Ḥazon Ish rules similarly (Demai 12:19).
