Peninei Halakha

8 – The Obligated and the Exempt

01. Produce Subject to Terumot and Ma’asrot

According to most Rishonim, only the five grain species, wine, and olive oil — the staples of human life – are subject to terumot and ma’asrot by Torah law, as the Torah states: “The first of your grain, your wine, and your oil” (Devarim 18:4). This is the view of Rashi, Tosafot, R. Shimshon, Rashba, Ran, and Ritva. Grain provides basic food, such as bread and baked grain products; wine gladdens and sustains; and olive oil nourishes and enriches. In the days of King Ḥizkiyahu, the Sages expanded the obligation, requiring terumot and ma’asrot to be separated from other tree fruits, legumes, and vegetables as well.

Others maintain that the Torah obligation extends beyond grain, wine, and oil to include legumes and tree fruits as well. Their view is based on the verses dealing with ma’aser sheni: “All the tithe of the land, from the seed of the land, from the fruit of the tree, is the Lord’s…” (Vayikra 27:30), and, “You shall surely tithe all the produce of your seed that comes forth from the field year by year” (Devarim 14:22). According to this view, although the Torah explicitly mentions only three species, it uses them to teach the broader rule: grain teaches that legumes are included, and grapes and olives teach that tree fruits are included. The Sages then extended the obligation further, requiring separation of terumot and ma’asrot from all vegetables as well (Yerushalmi, Ma’asrot 1:1; MT, Laws of Terumot 2:1, 6; R. Shlomo Sirilio).

All of this applies only to produce that grows from the ground. Foods that come from animals, such as milk and meat, are therefore exempt from terumot and ma’asrot. Although animals themselves are sustained by grass, their meat and milk are not considered produce of the field, but secondary products derived from what grows there. Mushrooms are exempt as well, since they do not grow from the soil. The same is true of plants that people do not normally eat: whether they are used as animal feed, or only to season food and are not eaten on their own, they are exempt, as explained in the next section.[1]

By Torah law, one must separate terumot and ma’asrot from produce that he picks and gathers for his household’s food, as the Torah states: “You shall surely tithe all the produce of your seed… and you shall eat” (Devarim 14:22–23). The Sages extended the obligation to produce picked for sale as well. This distinction also applies when produce is sold before its final processing is complete. If one buys grapes to make wine, or olives to make oil, and intends the wine or oil for household use, the obligation applies by Torah law. If he intends to make them for sale, the obligation is rabbinic (Bava Metzia 88b; MT, Laws of Ma’aser 2:1–2).

[1]. The Torah refers to the produce subject to terumot and ma’asrot in two different ways. Regarding teruma, it mentions grain, wine, and oil specifically (Bamidbar 18:12; Devarim 18:3–4). Regarding ma’aser sheni, however, it uses broader language: “All the tithe of the land, from the seed of the land, from the fruit of the tree, is the Lord’s…” (Vayikra 27:30). Similarly, in Devarim it first states: “You shall surely tithe all the produce of your seed that comes forth from the field,” and only afterward specifies “the tithe of your grain, your wine, and your oil” (Devarim 14:22–23).

According to most authorities, the broader language used regarding ma’aser sheni does not expand the Torah obligation to all produce of the field and all tree fruits. Rather, it is understood in light of the Torah’s more specific language regarding teruma, which limits the Torah obligation to grain, wine, and oil. This is also implied by the Bavli (Bekhorot 54a). This is the view of Rashi, Tosafot, R. Shimshon, Rid, Riaz, Rosh, Rashba, Ran, Ritva, Ra’ah, Meiri, and others. Some narrow the Torah obligation even further, maintaining that only wine and oil are subject to the Torah obligation, but not grapes and olives themselves (Talmidei Rabbenu Yona; Riva; and others). Others broaden the obligation to include all seven species by Torah law (R. Yitzḥak Gi’at). The Gemara in Nedarim 55a explains that in the days of Ḥizkiyahu, the Sages expanded the obligation to include separating terumot and ma’asrot from other fruits and vegetables as well (Rosh, Nedarim 55a; R. Shimshon, Ma’asrot 1:1).

By contrast, the Yerushalmi, Ma’asrot 1:1, takes the more inclusive view. It understands the verse regarding ma’aser sheni – “from the seed of the land, from the fruit of the tree” – as including all legumes and tree fruits in the Torah obligation. According to this view, the Torah’s references to grain, wine, and oil are not meant to limit the obligation to those three categories. Rather, they are specific examples from which the broader rule is learned: grain teaches that legumes are included, and wine and oil teach that tree fruits are included. Only vegetables are excluded from the Torah obligation, and their obligation is rabbinic. Rambam rules this way (MT, Laws of Terumot 2:1, 6).

The distinction can be explained as follows: vegetables are less nourishing than legumes, and they do not gladden a person as tree fruits do. Some maintain a third position: by Torah law, teruma and ma’aser rishon apply only to grain, wine, and oil, while ma’aser sheni applies to all produce, including vegetables (Yere’im; Smag).

02. Further Details

Any food grown from the ground and normally eaten by people requires terumot and ma’asrot, whether it is eaten in its natural form, crushed, or made into juice. Parts of a fruit that are not normally eaten do not require separation. Thus, inedible peels and seeds are exempt, while edible ones – such as apple peels and watermelon seeds – require terumot and ma’asrot. Grape leaves, even when picked for food, such as to wrap rice and meat, are exempt, since they are not generally considered food.

Spices used only to give food flavor, aroma, or color, and not eaten on their own, do not require terumot and ma’asrot. This includes black pepper, cinnamon, cumin, coffee beans, and tea leaves. Parsley and cilantro, however, are different. Since people commonly mix them into salads, where they remain recognizable, they are considered foods eaten in their own right and require terumot and ma’asrot. Similarly, if one cooks soup with parsley, garlic, or onion, the soup requires separation even if he added them only for flavor and plans to discard them afterward. Since these vegetables are normally eaten on their own, a soup flavored by them is treated as receiving its taste from produce that requires terumot and ma’asrot.[2]

Plants grown for medicine, fragrance, or decoration are exempt from terumot and ma’asrot. Khat leaves are exempt as well. The same applies to seeds that are not edible in themselves but are grown in order to produce vegetables, such as onion seeds. If one takes seeds and sprouts them, the sprouts do not require separation. Although some are stringent, the primary halakha follows the lenient view.[3]

Species used as animal feed are exempt from terumot and ma’asrot, even if a person wants to eat them and planted them for that purpose. Their status follows their normal use as animal food. However, species that are sometimes eaten by people and sometimes by animals, such as barley, depend on intent. If one planted and gathered them for human consumption, they require terumot and ma’asrot. If he planted and gathered them for animal feed, they are exempt (see MT, Laws of Terumot 2:2; Ma’adanei Eretz, Laws of Terumot 2:7).[4]

[2]. This is the position of Tosafot, Yoma 81b, s.v. she-ha-pilpelim, and Rosh in his first explanation. Tosafot Yeshanim, Rashba, and Ran write similarly. Some are stringent regarding tea leaves and require separating terumot and ma’asrot from them without a berakha (R. Mordechai Eliyahu, Ha-Torah Ve-ha-Aretz 4, p. 10). However, since the overwhelming majority of authorities are lenient, and since any obligation would be rabbinic, the halakha follows the lenient view.

Mint leaves require a separate distinction. Many people use them only to flavor drinks, while others also eat them as part of a salad. Therefore, if one planted them for eating, they require terumot and ma’asrot. If he planted them only for flavoring, they are exempt. In a doubtful case, one should separate without a berakha.

Regarding sugar produced from cane by pressing and cooking its liquid, some exempt it from terumot and ma’asrot, since sugarcane is not considered a fruit (Radvaz 1:563; Nahar Mitzrayim; and others). Sugar produced from sugar beets is likewise exempt, since this type of beet is not fit to eat (Har Tzvi, Zera’im 1:79; Ḥazon Ovadia: Terumot and Ma’asrot, p. 111). Others disagree. Some maintain that cane sugar requires terumot and ma’asrot (Kaftor Va-Feraḥ 26), while others distinguish between the two and require separation from beet sugar even if cane sugar is exempt (Minḥat Shlomo 3:150:3; Mishpetei Eretz 1:9). In practice, the accepted custom follows the lenient view, especially since any obligation would be rabbinic.

Regarding orange peels, some maintain that they require terumot and ma’asrot. They argue that since the entire peel is used to make sweets, and many people eat the white part of the peel as is, the peel has the status of edible produce. According to this view, one may even separate terumot and ma’asrot from the peels for the fruit itself le-khatḥila in our time (Tzitz Eliezer 1:1; 3:21). Mishpetei Eretz 8, note 42 inclines toward permitting this when necessary.

Ḥazon Ish, however, maintains that the peels are exempt, since only a minority are intended for eating (Ma’asrot 1:30). Others take an intermediate position: one who wants to eat the peels must separate terumot and ma’asrot from them, but one may not separate from the peels for the fruit itself (see Ha-Ma’aser Ve-ha-Teruma 3:38). This appears to be the practical halakha. Nevertheless, one who separates terumot and ma’asrot from oranges without further specification has exempted the peels as well.

[3]. Some are stringent and require separating terumot and ma’asrot from sprouts. In their view, even if one already separated from the seeds themselves, the sprouts are treated as a new stage of growth, since the entire purpose of planting the seeds was to produce the vegetable that emerges from them (R. Mordechai Eliyahu, Ha-Torah Ve-ha-Aretz 3, p. 215). Mishpetei Eretz 1:14 is stringent regarding produce grown in water and requires separation without a berakha. However, it is lenient regarding sprouts grown only in moisture, since they resemble mushrooms.

In practice, however, there are several reasons to be lenient, even when the sprouts grow in water. First, the obligation would be rabbinic from two angles: they grow in a closed vessel, which has the status of an unperforated pot, and their status is that of vegetables. Second, there are three separate doubts regarding whether any obligation applies at all. Some maintain that produce grown in water is exempt from shevi’it and from terumot and ma’asrot (see below, note 17). Authorities also disagree about whether produce grown indoors is subject to a rabbinic obligation in terumot and ma’asrot: Rambam requires separation from it (MT, Laws of Ma’aser 1:10), while Raavad exempts it. Finally, the shoot may be secondary to the seed, since all its substance comes from the seed, from which terumot and ma’asrot were already separated. This is also the view of R. Yaakov Ariel (Be-ohalah Shel Torah 4:47).

If it were easy to be stringent, perhaps it would be proper to satisfy all opinions. Since doing so involves much effort and also creates further uncertainties – for example, if one separates from all the sprouts today, they may continue growing by tomorrow, raising new questions about whether and how to separate again – one should rule according to the primary law: in a doubtful rabbinic matter, we are lenient.

[4]. The Sages made an exception for vetch. Although it is normally animal feed, people eat it in times of famine. They therefore decreed that terumot and ma’asrot must be separated from it, even when it was planted for animals (Yerushalmi, Ḥalla 4:4; Mahari Kurkus and Radvaz to MT, Laws of Terumot 2:2).

03. Hefker Produce

Hefker produce – produce that anyone is free to take – is exempt from terumot and ma’asrot. The Torah states: “Then the levi shall come, for he has no portion or inheritance with you” (Devarim 14:29). The Sages infer that terumot and ma’asrot apply only to produce in which the levi has no portion or inheritance. Hefker produce is different: since the levi does have a share in it and may take it like anyone else, no separation is required (Yerushalmi, Terumot 1:3; Yerushalmi, Ma’asrot 1:1). Therefore, hikers who pick wild fruit growing in a place that belongs to no one may eat it, whether in the field or at home, without separating terumot and ma’asrot.

Fruit trees planted decoratively in public gardens owned by a municipality or public association are exempt from terumot and ma’asrot as long as those responsible for the gardens allow anyone to pick fruit without restriction. If this is unclear, those responsible should announce before three people that the fruit is hefker. This removes any doubt and exempts the fruit.

One who wants to declare his own fruit hefker must say before three people: “My fruit is hefker.” The fruit then becomes ownerless, and anyone may acquire it. At least two of those present must be halakhically valid witnesses, so that if the third person acquires the fruit, the other two can testify that he did so lawfully (SA ḤM 273:7). If one declares the fruit ownerless only for the poor but not for the rich, or even for everyone except one person, it is not hefker, and terumot and ma’asrot must be separated from it (Mishna, Pe’a 6:1).

The hefker that exempts produce from ma’asrot applies from the time it reaches onat ha-ma’asrot – the stage at which it becomes edible in pressing circumstances – until it is picked and becomes fixed for ma’asrot (see below, sections 6–7). If one declared his fruit hefker while it was still attached to the trees, but did not declare his field hefker, the fruit is exempt from terumot and ma’asrot (MT, Laws of Ma’aser 1:12). But if he declared the field hefker and not the fruit, the fruit remains subject to terumot and ma’asrot. Similarly, if one plants in an ownerless field, even though the field remains hefker, the produce is his, and terumot and ma’asrot must be separated from it (MT, Laws of Terumot 2:11).

If one declares his produce hefker, even for a single moment, anyone who acquires it during that time is exempt from terumot and ma’asrot. Once another person has acquired the produce, the original owner can no longer retract his declaration. If no one else has acquired it, however, the Sages enacted that during the first three days the owner may undo the hefker, either by retracting his declaration or by reacquiring the produce through lifting it. In either case, terumot and ma’asrot must once again be separated from the produce. Only if the produce remained hefker for three days, and the owner reacquired it afterward, is he exempt from separating terumot and ma’asrot.

This enactment was designed to prevent abuse: people might otherwise declare their produce hefker for a brief moment and immediately reclaim it, with no real intention of relinquishing ownership, solely to avoid the obligation of terumot and ma’asrot.[5]

[5]. The timing of hefker is critical. If one declared produce hefker before it reached onat ha-ma’asrot, but he or someone else reacquired it before that point, terumot and ma’asrot apply to the produce. Since it was no longer hefker when it reached onat ha-ma’asrot, the exemption never took effect. Similarly, if one declared it hefker only after it had already become fixed for ma’asrot, the existing obligation remains. Thus, hefker exempts produce only during the middle stage: after it reaches onat ha-ma’asrot but before it becomes fixed for ma’asrot.

Once its final processing is complete, however, the Sages prohibited declaring it hefker in order to exempt it from terumot and ma’asrot, even if it has not yet become fixed for ma’asrot. Nevertheless, if one violated this prohibition and declared it hefker, the declaration is effective and the produce is exempt, since it had not yet become fixed for ma’asrot (MT, Laws of Ma’aser 3:20; Shakh, YD 331:116).

The ruling above follows the discussion in Nedarim 43b–44b: during the first three days, the owner can still undo the hefker, and the produce returns to its original obligation; after three days, if he reacquires it, it remains exempt. This is Rambam’s position (MT, Laws of Vows 2:17), as understood by Kesef Mishneh, and it is codified in SA, ḤM 273:9. There is, however, a narrower way to understand this rule. Some maintain that terumot and ma’asrot apply only if the owner cancels the hefker within three days. If instead he reacquires the produce through a normal act of acquisition, just as anyone else could have done, it remains exempt. Even so, the enactment still prevents fraud. To reacquire the produce normally, the owner would have to pick or lift all of it, and he would worry that others might take some before he succeeds. Only by retroactively canceling the hefker within three days does the produce return fully to his possession and regain its original obligation in terumot and ma’asrot (Rashba and Rosh, Nedarim 43b; Leḥem Mishneh in the view of Rambam; Netivot Ha-Mishpat 273:2).

Others understand the enactment more broadly. In their view, anyone who acquires this produce during the first three days must separate terumot and ma’asrot, whether he is the original owner or someone else. Only one who acquires it after three days is exempt (Ran and Tosafot, Nedarim 43b).

A separate concern applies when one gathers a very large amount of hefker fruit. If he makes it into a pile, he appears to be acting like an owner. Therefore, because of mar’it ayin, the Sages required him to separate terumot and ma’asrot (Berakhot 40b; MT, Laws of Terumot 2:9).

04. Neta Reva’i, Shevi’it, and Gifts to the Poor

Some produce is exempt from terumot and ma’asrot because it already belongs to a different halakhic category. This is the case with neta reva’i, seventh-year produce, and the gifts that must be left for the poor.

The fruit of neta reva’i is exempt from terumot and ma’asrot. During a tree’s first three years, its fruit is forbidden as orla. In the fourth year, the fruit becomes neta reva’i: it is sacred, and there is a mitzva to eat it in purity in Jerusalem (see above, 2:9). Since the fruit is already consecrated for this mitzva, one does not leave leket, shikḥa, or pe’a from it for the poor, and one does not separate terumot and ma’asrot from it (MT, Laws of Ma’aser Sheni and Neta Reva’i 9:4).

If there is doubt whether fruit is neta reva’i or fifth-year fruit, one separates terumot and ma’asrot without a berakha. However, one need not give ma’aser rishon to a levi or ma’aser ani to a poor person. Since these gifts are monetary obligations, they are treated like all doubtful monetary claims: without clear proof that one truly owes the payment, one is not required to pay (MT, Laws of Ma’aser 13:20–21).

Produce that grows during the seventh year is hefker and is therefore exempt from terumot and ma’asrot.[6]

Similarly, produce that must be left for the poor — leket, shikḥa, pe’a, peret, and olelot — is exempt from terumot and ma’asrot[7]

[6]. If a field owner violated the Torah commandment by preventing others from entering his field and picked the seventh-year produce for himself, authorities disagree whether terumot and ma’asrot must be separated. According to Beit Yosef, he must separate, since he treated the produce as his own rather than leaving it hefker. According to Mabit, however, the produce remains exempt, because seventh-year produce is inherently hefker even when the owner acts improperly.

The same dispute applies when produce grown in a non-Jew’s field during the seventh year was sold to a Jew, who then gathered it from the field. According to Mabit, the produce has shevi’it status; it is sacred and exempt from terumot and ma’asrot. According to R. Yosef Karo, produce grown by a non-Jew does not have shevi’it status. Therefore, when the Jew gathers it – the stage at which the obligation of terumot and ma’asrot takes effect – he must separate terumot and ma’asrot.

In practice, one separates terumot and ma’asrot from such produce without a berakha. Since ma’aser rishon and ma’aser ani are monetary obligations, and the obligation to give them is uncertain, one need not give them to a levi or a poor person. According to R. Yosef Karo’s position, the ma’aser to be separated is ma’aser ani. Some were also careful to separate ma’aser sheni out of concern for the other possibility, and Rav Kook writes that this is proper le-khatḥila (Mishpat Kohen 82; Da’at Kohen 239; Peninei Halakha: Shevi’it 3:2; 5:11).

In ordinary years, Tu Bi-Shvat determines the tithing year for tree fruit. In the seventh year, however, the determining date is the first of Tishrei. Any fruit that reaches ḥanata during the seventh year, from the first of Tishrei through the twenty-ninth of Elul, has shevi’it status and is exempt from terumot and ma’asrot (Peninei Halakha: Shevi’it 3, note 6).

[7]. The Torah states: “Then the levi shall come, for he has no portion or inheritance with you” (Devarim 14:29). The Sages infer that terumot and ma’asrot are required only from produce in which the levi has no share. Therefore, since a poor levi has a right to collect the gifts left for the poor like any other poor person, such gifts are exempt from terumot and ma’asrot (Yerushalmi, Terumot 1:3; MT, Laws of Terumot 2:9).

In practice, today, it is generally not worthwhile for poor people to come to the fields and collect these gifts. As a result, they belong to the field owner, and terumot and ma’asrot apply to them. If, however, the owner knows that poor people wish to collect the gifts in his field, they retain their exempt status (Ritva, Gittin 47a; see above, 6:9).

05. Onat Ha-ma’asrot and Calculating the Years

The mitzva of separating terumot and ma’asrot applies only after the produce has completed its processing and become fixed for ma’asrot (see below, sections 6–7). The produce’s tithing year, however, is determined earlier, at the stage called onat ha-ma’asrot. This is when the produce has developed beyond its unripe stage and can be eaten in pressing circumstances. For grain and legumes, this is called “having reached one-third,” meaning that they have reached one-third of their ripening. For tree fruit, it is the stage of ḥanata. One sign that produce has reached onat ha-ma’asrot is that from this point onward, if the grain, legumes, or seeds of the fruit were planted, they would grow.[8]

Onat ha-ma’asrot determines the tithing year for tree fruits, grain, and legumes, but not vegetables. Produce that reached onat ha-ma’asrot before its Rosh Ha-shana belongs to the previous year. Produce that reached onat ha-ma’asrot after its Rosh Ha-shana belongs to the following year. Two fundamental laws depend on this.

First, one must separate terumot and ma’asrot from produce of the same year, as it states: “You shall surely tithe all the produce of your seed that comes forth from the field year by year” (Devarim 14:22). The Sifrei explains: “This teaches that one may not tithe from one year for another.” If one nevertheless separated from produce of one year for produce of another year, his act is void (Mishna, Terumot 1:5; MT, Laws of Terumot 5:11).

Second, onat ha-ma’asrot determines whether the produce belongs to a ma’aser sheni year or a ma’aser ani year. Ma’aser sheni is separated in years one, two, four, and five of the shemita cycle, while ma’aser ani is separated in years three and six.

For grain and legumes, Rosh Ha-shana is the first of Tishrei. Anything that reached onat ha-ma’asrot before the first of Tishrei belongs to the previous year, while anything that reached that stage afterward belongs to the following year.

Tree fruit follows a different calendar. Its Rosh Ha-shana is Tu Bi-Shvat, four and a half months after the first of Tishrei. Fruit that reaches ḥanata before Tu Bi-Shvat, such as citrus fruit, is understood to have grown from the rains of the previous year and therefore belongs to that year. Most fruit, however, reaches ḥanata after Tu Bi-Shvat and belongs to the new year, since it grew from that year’s rains.

The seventh year is an exception. For shevi’it, the year for tree fruit begins on the first of Tishrei rather than Tu Bi-Shvat. Therefore, any fruit that reaches ḥanata between the first of Tishrei and Tu Bi-Shvat of the seventh year has shevi’it status: it is hefker and exempt from terumot and ma’asrot. Fruit that reaches ḥanata during that same period in the year after shevi’it has the status of first-year produce (Pe’at ha-Shulḥan 22:14; Peninei Halakha: Shevi’it 3, note 6).

Vegetables follow a different rule because their growth cycle is different from that of grain, legumes, and tree fruit. They grow through irrigation and can therefore be grown throughout the year. In addition, vegetables in the same field do not all ripen at once. If their year were determined by the point at which each vegetable became fit to eat in pressing circumstances, one field could contain vegetables from two different years, with no clear way to distinguish them. The Sages therefore established a simpler rule: the tithing year for vegetables is determined by the time they are picked. Their Rosh Ha-shana, like that of grain and legumes, is the first of Tishrei, but their onat ha-ma’asrot is picking, not the stage of “having reached one-third.” The same rule applies to rice, millet, and sesame (Rosh Ha-shana 14a).

An etrog has a more nuanced status. Like vegetables, it grows “on all water”: when irrigated, it can continue growing beyond its natural season. Its tithing year is therefore determined by the time it is picked. At the same time, since it grows on a tree, its Rosh Ha-shana is Tu Bi-Shvat. Other citrus fruits follow the ordinary rule for trees. Since they have a fixed season of growth and harvest, their year is determined by ḥanata.[9]

[8]. The Sages expounded: “‘You shall surely tithe all the produce of your seed’ – that which is planted and grows” (Devarim 14:22; Yerushalmi, Ma’asrot 1:2). The Sages also gave indicators for various fruits, showing when their onat ha-ma’asrot occurs (Mishna, Ma’asrot 1:1–4; MT, Laws of Ma’aser 2:3–5). The basic rule for all fruits is that anything fit to be eaten in pressing circumstances has reached onat ha-ma’asrot, as explained in Peninei Halakha: Shevi’it 3, note 6. Fruit picked before it reaches onat ha-ma’asrot, even if one later manages to make it fit to eat, will never require terumot and ma’asrot.

[9]. These laws are explained in MT, Laws of Ma’aser Sheni and Neta Reva’i 1:2–10. The distinction between legumes and vegetables lies in the part that is eaten. With legumes, the edible part is the seed, so their year follows onat ha-ma’asrot. With vegetables, by contrast, the edible part is either the leaves, as with lettuce and cabbage, or a fruit whose primary edible part is not the seed, as with cucumbers and tomatoes. Therefore, their year follows picking. Tosafot maintain that a vegetable’s year is determined by the point at which it completes its growth (Rosh Ha-shana 13b, s.v. aḥar). Rambam, however, rules that vegetables follow the actual time of picking, not the time their growth is completed (MT, Laws of Ma’aser Sheni and Neta Reva’i 1:4). The halakha follows Rambam’s view (SA, YD 331:126).

There are, however, exceptions: rice, millet, and sesame. Although they are generally grouped with grain and legumes, they do not reach one-third growth uniformly. The Sages therefore established that their tithing year follows the time of picking, as with vegetables (Rosh Ha-shana 14a; MT, Laws of Ma’aser Sheni and Neta Reva’i 1:8). Rambam explains the further details there.

Other citrus fruits follow the standard rule for trees, and their year is determined by ḥanata. This is the view of Rav Kook (Shabbat Ha-aretz, Kuntres Aḥaron 18) and Minḥat Shlomo to Mishna, Shevi’it 4:9. See also Peninei Halakha: Shevi’it 3, notes 6–7.

06. Gmar Melakha

Even after produce has reached onat ha-ma’asrot and been picked, terumot and ma’asrot should not yet be separated until the produce reaches gmar melakha – the point at which its processing is complete. Before then, the produce has not yet reached its optimal finished state. In addition, only after gmar melakha can one properly calculate what must be separated as ma’asrot.[10]

Gmar melakha is the completion of gathering the produce from the field and preparing it to be brought home or sold. The exact point depends on the type of produce and its intended use. Produce that is normally cleaned in the field reaches gmar melakha once it has been cleaned and fully gathered. Grapes intended for wine and olives intended for oil reach gmar melakha only once the wine or oil has been prepared. Grapes intended to be eaten fresh reach gmar melakha once they have been gathered; if they are intended as raisins, once they have become raisins. Olives intended for pickling reach gmar melakha once the pickling is complete. For wheat, gmar melakha is miruaḥ. This means that the stalks have been threshed to separate the kernels, the grain has been winnowed to remove the chaff, the remaining waste has been cleared away, and the kernels have been properly set in place.

Although it is forbidden to separate terumot and ma’asrot before gmar melakha, if one did so after the fact, he has fulfilled his obligation. Sometimes, however, it is unclear when gmar melakha occurs. For example, fruit may be gathered into crates in the field and then taken to a packing house, where it is cleaned, sorted, and packaged for market. Ideally, one should avoid the uncertainty and wait until the packaging is complete. However, if there is a need to separate earlier – because people may forget to separate later, because the packaging may make separation difficult, or because workers may take some of the fruit home before separation – it is proper to separate terumot and ma’asrot after the first stage of gathering has been completed.[11]

[10]. The Torah states: “Your gift shall be reckoned to you like grain from the threshing floor” (Bamidbar 18:27). “Grain from the threshing floor” refers to wheat kernels after they have been separated from the stalks and chaff (Yerushalmi, Terumot, end of ch. 1). Similarly, the Torah speaks of “the tithe of your grain, your wine, and your oil” (Devarim 12:17; 14:23; 18:4). Since tirosh refers to wine and yitzhar to oil, the verse indicates that terumot and ma’asrot are separated only after the produce has reached its finished form. See also Yerushalmi, Terumot 1:2, in the statements of R. Ḥananya and R. Mana, from which the two reasons given above are derived.

[11]. R. Shimshon and Rosh write that the Torah implies that, le-khatḥila, one should not separate before gmar melakha (to Mishna, Terumot 1:10). Nevertheless, if one did so, the separation is valid. The Sages derive this from the verse: if one separates ma’aser early, while the grain is still in the stalks, the ma’aser that has been separated requires terumat ma’aser but not teruma (Yerushalmi, Ḥalla 1:3; Bavli, Pesaḥim 35b). This shows that, by Torah law, separation before gmar melakha is effective after the fact. Some maintain that the requirement to wait until the produce is fully processed is rabbinic (Levush, YD 331:54; Shakh, YD 331:80).

Ideally, it is proper to separate terumot and ma’asrot only after the entire gathering process is complete, at the point closest to bringing the produce home or preparing it for market. When there is a practical need to separate earlier, however, one may do so after the first stage of gathering has been completed. Four considerations support this leniency. First, when early separation will prevent people from eating tevel, there is precedent for leniency: just as the Sages sometimes permitted separation from non-adjacent produce when necessary, so too they may have permitted separation before gmar melakha when waiting would create a real concern that the produce would be eaten without separation (Minḥat Shlomo 1:57:2). Second, the produce may already have reached gmar melakha after this first stage of gathering, since it is then ready to be brought home or sold to produce vendors. Third, some maintain that if the only remaining steps are packaging or light cleaning, one may separate terumot and ma’asrot even before the process is fully complete. Since the produce is essentially finished, separating at this point does not cause any loss to the kohanim or levi’im (Or Same’aḥ to MT, Laws of Terumot 5:4). Fourth, according to my teacher, R. Shaul Yisraeli, the problem with separating before gmar melakha is that produce before gmar melakha is considered inferior to finished produce, and one may not separate from inferior produce for superior produce. Accordingly, today, since teruma is not eaten by kohanim, the inferiority of the unfinished produce has no practical significance. One may therefore separate even before gmar melakha le-khatḥila (Ha-Torah Ve-ha-Aretz 2, p. 299; this also seems to follow from Arukh ha-Shulḥan, Zera’im 66:7).

The same reasoning can be applied to ma’aser rishon and ma’aser ani. One might have thought that separating early would disadvantage the levi or the poor person, since the produce has not yet reached its finished state. In practice, however, the common arrangement is to give them the monetary value of the ma’aser, and that value can be calculated according to the produce’s value after packaging.

In any case, when one wishes to eat the produce, he may certainly separate terumot and ma’asrot before gmar melakha. It is inconceivable that the Sages would forbid him to eat the produce as a fixed meal because it is untithed, while also forbidding him to separate terumot and ma’asrot from it (Minḥat Shlomo 1:56:1).

The detailed laws of gmar melakha are explained in Mishna, Ma’asrot 1:5–8; MT, Laws of Ma’aser 3:8–16; Mishpetei Eretz 7:1–13; and Kedushat ha-Aretz 7:21–50. Most practical questions are resolved by the principles explained above.

07. When Produce Becomes Fixed for Ma’aser

By Torah law, one must separate terumot and ma’asrot from produce only after two stages: its processing has been completed, and it has been fixed for ma’asrot by being brought into the house. As the Torah states: “I have removed the sacred portion from the house” (Devarim 26:13). Therefore, by Torah law, the mitzva applies only after the produce has reached the house (Bava Metzia 88a). In other words, although one may separate terumot and ma’asrot from produce once its gmar melakha is complete, the Torah prohibition against eating it without separation begins only when it is brought into the house.

The Sages added safeguards to this Torah law by establishing two additional rules.

First, from the moment produce is picked, it may no longer be treated like ordinary untithed produce, even though it has not yet become fixed for ma’asrot. One may eat it only as a casual snack, akhilat arai, but not as a set meal, akhilat keva. One may not plant it in the ground, though one may feed it regularly to animals until it becomes fixed for ma’asrot (MT, Laws of Ma’aser 3:1–2, 20; 6:3).

Second, produce can become fixed for ma’asrot even before it is brought into the house. This happens when the produce is intended for sale. In that case, once its gmar melakha is complete, it is considered ready for its next stage – sale – and it becomes fixed for ma’asrot. From that point on, even eating it as a casual snack, akhilat arai, is forbidden until terumot and ma’asrot are separated. Even if the produce has not yet reached the place where it will actually be sold, once its processing is complete and it would be sold if a buyer came, it is fixed for ma’asrot. If, however, it would not yet be sold even if a buyer came, one may still eat it casually until it reaches the place where it is intended to be sold and becomes fixed for ma’asrot.

The determining factor is whether, from the owner’s perspective, the produce is already ready for sale. Therefore, even if it has not yet reached the marketplace or other place of sale, it is fixed for ma’asrot if the owner would sell it were a buyer to arrive. If, however, the owner would not yet sell it even if a buyer came, the produce is not yet considered ready for sale. In that case, one may continue eating from it as a casual snack until it reaches the place where he intends to sell it. At that point, it becomes fixed for ma’asrot (Mishna, Ma’asrot 2:3; R. Shimshon, R. Ovadia of Bartenura, and R. Shlomo Sirilio o Mishna, Ma’asrot 2:3; Yerushalmi, Ma’asrot 1:4).

If the owner intends to bring the produce home for his household’s use, the Sages established that it can, under certain circumstances, become fixed for ma’asrot even before it enters the house. Once that happens, even eating it as a casual snack, akhilat arai, is forbidden until terumot and ma’asrot are separated.

The Sages identified six factors that fix produce for ma’asrot even before it enters the house: a) bringing it into a guarded courtyard; b) selling it; c) cooking it; d) salting or pickling it; e) separating teruma gedola from it; and f) Shabbat – when Shabbat begins, produce designated for Shabbat use becomes fixed for ma’aser (MT, Laws of Ma’aser 3:3; 4:1–2).

Since the produce has already reached the stage at which separation may be performed, if one is unsure whether his eating counts as a casual snack, akhilat arai, or a set meal, akhilat keva, or whether the produce has already become fixed for ma’asrot, one should separate terumot and ma’asrot with a berakha and thereby remove the doubt.[12]

[12]. It is difficult to define exactly what counts as akhilat arai, casual eating, which is permitted before produce becomes fixed for ma’aser. In simple terms, it means a quick, informal bite outside the framework of a meal. Similarly, the Yerushalmi explains that anything eaten in a setting of reclining and drinking wine is considered akhilat keva, set eating (Yerushalmi, Ma’asrot 4:1). Raavad writes similarly: if one ate bread, then all the fruit eaten in that same setting is considered part of a set meal (Raavad to MT, Laws of Hiring 12:10). The Yerushalmi remains uncertain about a related case: one intended to eat fruit while reclining with wine but later changed his mind and ate it without reclining.

From Rambam, based on the Mishna, a second principle emerges: when a person is actively preparing produce for eating, the produce may become fixed for ma’aser even outside the framework of a meal (MT, Laws of Ma’aser 3:19). The Mishna states: “One who peels barley may peel one kernel at a time and eat; but if he peeled and placed them into his hand, he is obligated. One who rubs ears of wheat may winnow from hand to hand and eat; but if he winnowed and placed them in his lap, he is obligated” (Mishna, Ma’asrot 4:5). According to Rashi and Meiri, even gathering two kernels in one’s hand is considered eating them in a set manner (Beitza 13b), and this appears to be Rambam’s understanding as well. However, there is another way to understand the Mishna. It may be referring specifically to someone who peeled the barley or rubbed the wheat inside his house or in a guarded courtyard. In such a setting, as soon as the produce’s gmar melakha is completed, it becomes fixed for ma’aser, and even akhilat arai is forbidden, as explained in the next section. Outside a guarded courtyard, however, eating wheat or barley in this manner may still be considered akhilat arai. Rambam’s view could be understood in this manner as well (Sha’arei Tzedek 6, Binat Adam 1; Kerem Tziyon 13, p. 179).

In addition, Tosafot, Rashba, and Ritva maintain that rubbing wheat or peeling barley completes the produce’s gmar melakha but does not, by itself, make the eating akhilat keva (Beitza 13b). This also seems to be the plain sense of the discussion: only eating in a set manner, comparable to eating that requires a sukka, obligates one to separate terumot and ma’asrot.

This entire issue is rabbinic, since the produce has not yet entered the house. In addition, most authorities maintain that terumot and ma’asrot today are rabbinic. One may therefore rely on the lenient view: as long as the eating is not set and does not take place within a formal meal framework, the produce remains exempt. One who wishes to be meticulous should separate terumot and ma’asrot with a berakha whenever there is concern that his eating may be considered akhilat keva according to one of the views. Therefore, if one takes a small amount of fruit from an orchard or packing house before packaging is complete and eats it as a snack in his car, he need not separate terumot and ma’asrot. The eating remains akhilat arai, and a car is not considered a house.

Fully processed produce becomes fixed for ma’aser when it is brought into the house in the normal way. If, however, one brought such produce into his house through a window, it does not become fixed for ma’aser, and one may still eat from it as akhilat arai. R. Yehuda b. R. Ilai used this halakha to contrast earlier generations with later ones. Earlier generations made Torah primary and work secondary. They would bring their produce in through the door so that it would become fixed for ma’aser, and they merited success in both Torah and work. Later generations made work primary and Torah secondary. They would bring their produce in through the windows so that they could continue eating from it as akhilat arai without becoming obligated to separate terumot and ma’asrot, and in the end, neither their Torah nor their work endured (Berakhot 35b).

If produce was brought into the house before its gmar melakha was complete, the entry itself does not yet fix it for ma’aser. Thus, if one brought in stalks of grain, or even kernels still mixed with chaff, he may continue eating from them as akhilat arai until their processing is completed. According to Rambam, once the kernels are separated from the chaff, the grain’s gmar melakha is complete, and at that point it becomes fixed for ma’aser (MT, Laws of Ma’aser 3:6). Ramban, Ritva, and Ran explain similarly: produce that is normally gathered into a grain pile does not need to “see the face of the house” after gmar melakha in order to require terumot and ma’asrot. If its gmar melakha is completed inside the house, that itself is enough to require separation (Bava Metzia 88b).

Rashi and Tosafot, however, take a more lenient view. Since the produce entered the house before gmar melakha, completing its processing afterward does not fully fix it for ma’aser. One may therefore still eat from it as akhilat arai. If he wishes to eat it as akhilat keva, however, he must first separate terumot and ma’asrot (Avoda Zara 41b).

Rabbenu Ephraim and Rashba are more lenient still. In their view, once produce entered the house before gmar melakha, it never becomes subject to terumot and ma’asrot. Therefore, even after its processing is completed, one may eat from it as akhilat keva.

08. Fruit Growing in a Courtyard

Fruit growing in a guarded courtyard, where outsiders may not enter, may be eaten casually, as akhilat arai, only before it has been gathered, since gathering is its gmar melakha. Therefore, one may pick and eat a single grape or a single fig, because each is eaten in one bite and does not count as a completed act of gathering.

However, if one picks two grapes, two figs, or a larger fruit that is not eaten in one bite, such as an apple or a large fig, the picking itself is considered the fruit’s gathering and completes its gmar melakha. In a courtyard, this is the normal way fruit is gathered. Once its gmar melakha is complete, the guarded courtyard fixes it for ma’asrot. Therefore, even casual eating is forbidden until terumot and ma’asrot are separated (MT, Laws of Ma’aser 4:15, 17; Radvaz to MT, Laws of Ma’aser 4:18).

If one climbs a tree in a guarded courtyard and picks a quantity of fruit whose gathering would normally complete its gmar melakha, the fruit nevertheless does not become fixed for ma’asrot while he remains on the tree. Only when he descends to the courtyard floor does the guarded courtyard fix it for ma’asrot. Since eating on the tree is still akhilat arai, he may eat from the fruit there without separating terumot and ma’asrot (MT, Laws of Ma’aser 4:18).

09. Where the Obligation Applies in Eretz Yisrael

The mitzva of terumot and ma’asrot is one of the mitzvot dependent on the Land. Therefore, anything that grows within the territories of Eretz Yisrael is included in the mitzva, including the east side of the Jordan and Syria. However, the level of obligation depends on the presence of the Jewish people in the Land. When most of the Jewish people live in Eretz Yisrael, the obligation applies by Torah law. When most of the people do not live in the Land, as is the case today, the obligation is rabbinic. Some maintain that in the areas settled by those who returned from Babylonia during the Second Temple period, the obligation remains by Torah law even when most of the Jewish people are not living in the Land (see below, 12:11–12; Peninei Halakha: Shevi’it and Yovel 11:4, where this is explained).

Produce grown anywhere under the rule of the State of Israel requires terumot and ma’asrot, and one recites a berakha when separating from it. One may also separate from produce grown in one part of the State of Israel on behalf of produce grown in another part.

However, one should not separate from produce grown in parts of Eretz Yisrael that are under foreign rule – such as Jordan, Syria, Lebanon, and Egypt – on behalf of produce grown within the State of Israel, or the reverse. Some maintain that in areas under Israeli rule the mitzva has a basis in Torah law, while outside the state’s borders its obligation is rabbinic. When most of the Jewish people live in the Land, the obligation will be by Torah law in all territories under Israeli rule, as explained at length below, 12:17.

When produce crosses between Eretz Yisrael and the Diaspora, the basic rule depends on where its gmar melakha is completed.

Produce grown in Eretz Yisrael and exported to the Diaspora requires separation of terumot and ma’asrot if its gmar melakha was completed before it left the Land. If its gmar melakha was completed only after it left Eretz Yisrael, it is exempt.

There is one additional debate regarding exported produce. If, already at the time of picking, the owner intended to export the produce, some exempt it from terumot and ma’asrot even if its gmar melakha was later completed in Eretz Yisrael (Maharsham). Others are stringent (Ḥazon Ish; Igrot Moshe). Since the obligation in this case is rabbinic, those who wish to be lenient may do so.[13]

Produce grown in the Diaspora and brought into Eretz Yisrael follows the same basic principle. If its gmar melakha was completed before it entered the Land, it is exempt. If its gmar melakha was completed in Eretz Yisrael, terumot and ma’asrot must be separated by rabbinic law (MT, Laws of Terumot 1:22).

Several Aḥaronim limit this last ruling to produce grown in a Jewish-owned field in the Diaspora. Produce grown there in a non-Jewish-owned field remains exempt, even if its gmar melakha was completed in Eretz Yisrael (Aḥiezer; R. Shlomo Zalman Auerbach). Although Ḥazon Ish is stringent, the lenient view appears correct. Since the obligation is rabbinic, the halakha follows those who are lenient.[14]

[13]. Rambam writes that produce from Eretz Yisrael that is exported to the Diaspora is exempt from terumot and ma’asrot (MT, Laws of Terumot 1:22). Raavad disagrees and maintains that it is subject to a rabbinic obligation even if its gmar melakha is to be completed in the Diaspora. The Aḥaronim write that the halakha follows Rambam, but they disagree about how to understand his ruling. According to Baḥ and Minḥat Ḥinukh, the produce is exempt even if its gmar melakha was completed in Eretz Yisrael. According to Radvaz, Mishneh la-Melekh, and most Aḥaronim, Rambam exempts only when the gmar melakha was completed outside the Land. If the gmar melakha was completed in Eretz Yisrael, terumot and ma’asrot apply to the produce.

Maharsham 1:72 adds that even those who interpret Rambam stringently would agree in one case: if the produce’s gmar melakha was completed in Eretz Yisrael with the intent to export it, it is exempt. Mishpetei Uziel, vol. 6, YD 98, rules similarly. However, Aḥiezer, Ḥazon Ish, Demai 15:4, and Igrot Moshe, YD 3:127, are stringent. Since produce exported for sale is, in any event, subject only to rabbinic obligation, those who wish to be lenient may do so.

If one may rely on this leniency even when the produce is certainly untithed, then all the more so one may be lenient when produce from Eretz Yisrael is already in the Diaspora and there is doubt whether terumot and ma’asrot were separated before export. This is the view of R. Isser Zalman Meltzer, R. Rosenthal, and Yabi’a Omer 10, YD 46.

[14]. Aḥiezer 2:39:6 and Ma’adanei Eretz, Laws of Terumot 1:22:9, exempt produce grown in a non-Jew’s field in the Diaspora, even if a Jew later completed its gmar melakha in Eretz Yisrael. The dispute turns on how broadly to understand Rambam’s ruling that Diaspora produce whose gmar melakha was completed in Eretz Yisrael is subject to a rabbinic obligation. According to the lenient view, Rambam’s ruling applies only to produce grown in a Jewish-owned field in the Diaspora. Produce grown in a non-Jew’s field is different, since everyone agrees that non-Jewish ownership of land in the Diaspora is fully effective. Therefore, completing its gmar melakha later in Eretz Yisrael does not create an obligation to separate from it. Ḥazon Ish is stringent, understanding Rambam to include all Diaspora produce whose gmar melakha was completed by a Jew in Eretz Yisrael (Ḥazon Ish, Shevi’it 2:1). Ha-Ma’aser Ve-ha-Teruma 3:29 inclines in that direction as well. Nevertheless, the lenient view appears correct. Since the obligation here is rabbinic, doubts in rabbinic law are resolved leniently.

10. Produce Grown by a Non-Jew

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).

11. Additional Laws Involving Non-Jews

If a Jew sells his produce to a non-Jew before gmar melakha, then by Torah law the produce is exempt from terumot and ma’asrot, since the stage that creates the obligation will be completed while it is in the non-Jew’s possession. The Sages, however, enacted that separation is still required. They did so because of ba’alei kisim – wealthy people who might try to avoid giving terumot and ma’asrot by selling their produce to a non-Jew before gmar melakha. To prevent this, the Sages established that even if the non-Jew completes the gathering, terumot and ma’asrot must still be separated. The produce is exempt only if the Jew sells it to the non-Jew while it is still on the trees, before it reaches onat ha-ma’asrot – that is, before it is fit to be eaten in pressing circumstances – and it remains in the non-Jew’s possession until after gmar melakha. In that case, it is exempt from terumot and ma’asrot (Menaḥot 67a; Rashi and R. Shimshon to Menaḥot 67a; MT, Laws of Terumot 1:13; Radvaz).

If a Jew and a non-Jew are partners in a field, terumot and ma’asrot must be separated from the produce. To avoid uncertainty over which produce belongs to the Jew’s share, which requires separation, and which belongs to the non-Jew’s exempt share, they should ideally divide the field in advance. The non-Jew’s portion will then be exempt, while the Jew’s portion will require separation. If they did not divide the field in advance, they should divide the harvested produce between them, and the Jew should separate terumot and ma’asrot from his share (SA YD 331:11; see the Herḥavot).

A non-Jew is not obligated to separate terumot and ma’asrot from produce that grew in his own field in Eretz Yisrael, and he cannot separate terumot and ma’asrot on behalf of a Jew. However, if he wishes, he may voluntarily separate from his own produce, and his separation takes effect (Mishna, Terumot 3:9; Yerushalmi, Terumot 3:5). Some maintain that this is a rabbinic enactment (MT, Laws of Terumot 4:15; SA YD 331:44). Others maintain that it is Torah law: just as a non-Jew can consecrate an offering, so too he can separate terumot and ma’asrot from produce he grew in Eretz Yisrael (Rashi and Tosafot; see Har Tzvi, OḤ 2:2).

12. Places That Are Not Fields

By Torah law, terumot and ma’asrot apply only to produce grown in the ground. Produce grown in a perforated pot is also considered ground-grown. Produce grown in an unperforated pot, or on growing surfaces that separate it from the ground, is exempt by Torah law. The Sages, however, required separation from such produce with a berakha (Yoma 83b).

Produce grown inside a house is exempt from terumot and ma’asrot, even if it is planted directly in the ground beneath the house, according to Raavad. Rambam agrees that it is exempt by Torah law, but maintains that the Sages required separation rabbinically. Therefore, one separates terumot and ma’asrot from indoor produce without a berakha (MT, Laws of Ma’aser 1:10).

One must separate terumot and ma’asrot from produce grown in greenhouses with a berakha, and one gives ma’aser rishon to a levi and ma’aser ani to a poor person.[17]

[17]. The Yerushalmi states that a tree grown inside a house is exempt from terumot and ma’asrot even if it is planted directly in the ground beneath the house, because the Torah obligation applies only to produce that grows “in the field”: “You shall surely tithe all the produce of your seed that comes forth from the field year by year” (Devarim 14:22; Yerushalmi, Orlah 1:2). Regarding shevi’it, however, the Yerushalmi leaves the question unresolved.

Rambam limits the Yerushalmi’s exemption to the Torah obligation. By Torah law, indoor produce is exempt, but the Sages required separation rabbinically (MT, Laws of Ma’aser 1:10). Raavad maintains that indoor produce is exempt even rabbinically. Therefore, in practice, one separates terumot and ma’asrot from indoor produce without a berakha.

The discussion above concerns produce grown inside an ordinary house. Greenhouses must be assessed independently. According to Rambam, who requires separation even from indoor produce, greenhouse produce is certainly subject to terumot and ma’asrot with a berakha. Some maintain that, according to Raavad, greenhouse produce should be treated like indoor produce and separated without a berakha. It seems clear, however, that even Raavad would agree that terumot and ma’asrot apply to greenhouse produce. His exemption for indoor produce is based on the fact that people do not normally grow crops inside a house. A greenhouse, by contrast, is built for cultivation. Therefore, produce grown in a greenhouse is subject to terumot and ma’asrot with a berakha, and one gives ma’aser rishon to a levi and ma’aser ani to a poor person.

Hydroponic produce raises a separate question because it grows without soil. Some maintain that terumot and ma’asrot nevertheless apply to it, as they apply to produce grown in a field (Har Tzvi, Zera’im 2:31). Others maintain that without soil, the obligation does not apply (Neḥpeh Ba-kesef 1, YD 5; Sefer ha-Shemita 2, 8:2, p. 97). In practice, because of the uncertainty, one separates terumot and ma’asrot from hydroponic produce without a berakha. This is also the ruling of Mishpetei Eretz 1:19 and Kedushat ha-Aretz 1:53.

Regarding shevi’it, I wrote in Peninei Halakha: Shevi’it 2, note 13, that since shevi’it today is rabbinic, one may grow vegetables inside a house (Pe’at ha-Shulḥan 20:52). Aḥaronim disagree about greenhouses. Some maintain that a greenhouse has the status of a house; since shevi’it today is rabbinic, they permit growing vegetables in a greenhouse during the seventh year (Yabi’a Omer 9, YD 31; Minḥat Shlomo 3:158:7). Others maintain that since vegetables are commonly grown in greenhouses, a greenhouse has the status of a field. According to this view, agricultural work is forbidden there during shevi’it (R. Yosef Shalom Elyashiv), and greenhouse produce is subject to terumot and ma’asrot with a berakha (R. Nissim Karelitz). This appears to be the correct view: a greenhouse has the status of a field.

Nevertheless, regarding shevi’it, I wrote that if the vegetables are grown in an unperforated pot inside a greenhouse, those who wish to be lenient may do so, since the case involves uncertainty on two rabbinic levels. This leniency should not be extended to terumot and ma’asrot. Although the Yerushalmi is more explicit about exempting indoor produce from terumot and ma’asrot than from shevi’it, that local comparison does not determine the practical ruling today. In our time, the obligation of shevi’it is weaker overall than the obligation of terumot and ma’asrot.

Several considerations explain this distinction. Regarding terumot and ma’asrot, some maintain that the obligation applies today by Torah law even without a Jewish majority in the Land (Rashi; Raavad). Others maintain that the obligation returns to Torah status when Jewish sovereignty over Eretz Yisrael is restored, a principle with renewed practical significance after the establishment of the State of Israel (Rashba and those who follow him; see below, 12:17 note 18). According to the remaining authorities, terumot and ma’asrot remain a full rabbinic obligation (see below, 12:11).

Shevi’it, by contrast, stands on weaker footing today. According to most authorities, its present-day obligation is rabbinic, and some Rishonim maintain that today it is only a pious practice. Its obligation is weakened further by uncertainty about the shemita-year count, which affects shevi’it more than it affects terumot and ma’asrot (Peninei Halakha: Shevi’it 5:6–7). Moreover, even according to Rambam’s central view that both obligations today are rabbinic, shevi’it is further removed from its Torah-law form. Terumot and ma’asrot are rabbinic only because most of the Jewish people do not live in the Land. Shevi’it, however, is rabbinic because the majority of each tribe does not live in its ancestral portion (ibid. 5:3).

13. Demai and Other Doubts

In the language of the Sages, tevel refers to produce from which terumot and ma’asrot have not yet been separated. The word tevel may be understood as tov-lo – “not good” – meaning that the produce is not yet fit to eat. Demai refers to produce about which there is uncertainty: perhaps terumot and ma’asrot were separated from it, and perhaps not. The word demai is Aramaic, meaning, “What is this?” In other words, the produce stands in question: were the required separations performed or not?

In the time of the Sages, most amei ha’aretz separated terumot and ma’asrot, but some did not do so properly. The Sages therefore gave produce bought from them the status of demai. Since teruma gedola was commonly separated even by amei ha’aretz, the Sages did not require one to separate it from demai. They did require one to separate ma’aser rishon, terumat ma’aser, and either ma’aser sheni or ma’aser ani.

Even so, the Sages did not require one to distribute the ma’aser rishon to a levi or the ma’aser ani to a poor person. Since these gifts are monetary obligations, they follow the general rule: “One who seeks to take money from another bears the burden of proof.” Unless the levi or poor person can prove that the ma’asrot were not already separated from this produce, the owner need not give them the gifts. He must, however, separate terumat ma’aser from the ma’aser rishon and give it to a kohen, because terumat ma’aser has sanctity and may not be eaten by a non-kohen. Similarly, since ma’aser sheni has sanctity, it must be separated and eaten in Jerusalem in purity.

One does not recite a berakha when separating terumot and ma’asrot from demai, nor when redeeming its ma’aser sheni, following the well-known rule that we are lenient in cases of doubt concerning berakhot (see MT, Laws of Ma’aser 9:1–4). If one redeems ma’aser sheni of demai, he need not add the additional fifth (MT, Laws of Ma’aser Sheni and Neta Reva’i 5:4).

Today, when there is doubt whether produce has been tithed, that doubt includes teruma gedola as well, since even that is generally not separated by amei ha’aretz. Therefore, one separates all the terumot and ma’asrot without a berakha. As explained above, the monetary gifts – ma’aser rishon and ma’aser ani – need not be given to the levi or the poor person. The sanctified portions, however – teruma gedola and terumat ma’aser – must be set aside out of doubt, wrapped, and discarded respectfully. Ma’aser sheni must likewise be redeemed onto a peruta.

Whenever one is unsure whether the produce before him belongs to a ma’aser sheni year or a ma’aser ani year, he should separate both out of doubt and say: “If this produce requires ma’aser ani, this shall be ma’aser ani; and if it requires ma’aser sheni, this shall be ma’aser sheni.” He then redeems the ma’aser sheni onto a peruta and gives the ma’aser ani to a poor person. One who wishes to be lenient may separate ma’aser sheni alone.[18]

[18]. The Mishna states that if produce from a ma’aser sheni year became mixed with produce from a ma’aser ani year, the status follows the majority. If the mixture is exactly half and half, one must be stringent (Mishna, Makhshirin 2:11). Many explain this to mean that one must account for both possibilities: he separates ma’aser sheni and redeems it onto money to be brought to Jerusalem; the redeemed produce is then given to the poor as ma’aser ani (R. Shimshon; Raavad; Rosh; R. Ovadia of Bartenura; the Vilna Gaon). Rambam understands the Mishna differently: one separates only ma’aser sheni, the more stringent possibility, because it has sanctity (MT, Laws of Ma’aser Sheni and Neta Reva’i 1:11). SA rules accordingly (YD 331:128). Still, most authorities maintain that one should separate both ma’aser sheni and ma’aser ani, and that is the proper practice. One who wishes to be lenient, however, may separate ma’aser sheni alone. Since the Aḥaronim rule that terumot and ma’asrot today are rabbinic, Rambam and SA provide a basis on which to rely.

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