054a - מעשר בהמה פרק תשיעי בכורות דף נד, ע"א

We have found [the source for] wine and oil;^[1] wine and grain, [and] grain and grain – from where [do we know it]?

אשכחן תירוש ויצהר - That one does not tithe from one for the other, for thus it is written: a “chelev” [a choice portion] for each one.

תירוש ודגן - Of which only one “chelev” is written for both of them – from where do we know that one may not separate terumah from grain for wine, or from wine for grain?

דגן ודגן - Wheat for barley and barley for wheat. Vines and olives are not kilayim with each other; grain with grain is kil’ei zera’im, by Rabbinic law; grain with wine is kil’ei hakerem, by Torah law.^[2]

By kal vachomer:^[3] if wine and oil, which are not kilayim with each other, are not tithed one for the other, then wine and grain, [and] grain and grain, which are kilayim with each other – is it not logical that they should not be tithed one for the other?

And according to Rabbi Yoshiyah, who said [one is not liable] until he sows wheat, barley and a grape seed in one throw of the hand,^[4] how does he derive it?

ולר' יאשיה דאמר - Grain and wine are not kilayim, and grain with grain is not kilayim, until he sows all three of them together in one throw of the hand.

היכי מייתי לה - By kal vachomer?

He derives it thus: if wine and oil, which are not kilayim with each other even by means of something else, are not tithed one for the other, then wine and grain, [and] grain and grain, which are kilayim with each other by means of something else – is it not logical that they should not be tithed one for the other?

אפילו ע"י דבר אחר - That [even] if he sowed a third species [with wine and oil, they are not kilayim]; or wheat or barley are not kilayim until there are two species of grain and a vineyard species.

תירוש ודגן - Which are two species that are kilayim by means of a third species, or grain and grain, which are kilayim by means of a vineyard – is it not logical, etc.

And two [other] species in general – from where do we know [it]?

ושני מינין בעלמא - That are not grain, such as beans and lentils – from where do we know that they are not tithed one for the other?

These are Rabbinic,^[5] and whatever the Rabbis enacted, they enacted along the lines of Torah law: just as under Torah law two species are not tithed one for the other, so too under Rabbinic law.

הני - All the other species are Rabbinic, for by Torah law only grain, wine and oil are subject to tithes; and whatever they enacted, they enacted along the lines of Torah law – that one should not tithe from one species for another that is not its kind.

Rava bar Rav Chanan said to Abaye: But if so, regarding ma’aser beheimah, where it is not written (Vayikra 27) “and all the tithe of cattle and the tithe of the flock”^[6]

Tosfos

ומה תירוש ויצהר שאינם כלאים זה בזה כו' - From new and old^[7] we cannot argue a kal vachomer in this way – “if new and old, which are not kilayim with each other [are not tithed one for the other…]” – for one could say: the tithe of sheep and goats will prove [otherwise], for they are kilayim with each other and yet are tithed one for the other; so I will bring wine and grain, grain and grain [and say the same]. And if you ask: now too, when he makes the kal vachomer from wine and oil, still the sheep and goats of ma’aser beheimah should prove [otherwise]! One can answer that it does not apply, because in ma’aser beheimah we do not find things of a single year that are not kilayim and yet are not tithed one for the other, as we find in the tithe of grain, where there are wine and oil of a single year that are not kilayim and are not tithed [one for the other]. But against a kal vachomer from new and old it is more fitting to say [the refutation], because in ma’aser beheimah too we find new and old [animals] that are not kilayim (one with the other) and are not tithed one for the other, while sheep and goats, which are kilayim with each other, are tithed one for the other.

דגן ודגן שהם כלאים זה בזה כו' - It is written in the Kuntres [Rashi] that kil’ei zera’im of grain with grain is Rabbinic; and it seems that this is a scribal error, for here it implies that it is Torah law. And so it is proven in the first perek of Kiddushin (39a), and likewise in Perek Kol HaBasar (Chullin 115a), where it asks: kil’ei zera’im should be forbidden [to eat], since it is [something of which God said] “I made it abhorrent to you”!^[8] And there is no difference between kil’ei hakerem and kil’ei zera’im except that this one is permitted to eat and that one is forbidden even for benefit. And even Rabbi Yoshiyah holds of kil’ei zera’im, and makes one liable even for wheat and barley alone on account of kil’ei zera’im. And what it says here, that according to Rabbi Yoshiyah wine and grain, grain and grain, are kilayim with each other “by means of something else” – it said “by means of something else” because of wine and grain, for one is liable on account of kil’ei hakerem only with three species, but on account of kil’ei zera’im he is liable with two. And so it is proven at the end of Perek Oso ve’es Beno (Chullin 82b), which brings there “one who sows kilayim receives lashes”, and we conclude: it teaches something in passing – that there are two kinds of kilayim – to exclude [the view] of Rabbi Yoshiyah, who said “until he sows wheat, barley and a grape seed in one throw of the hand”; it teaches us that when he sowed wheat and a grape seed, [or] barley and a grape seed, he is also liable. We learn from this that Rabbi Yoshiyah agrees regarding wheat and barley. And further, it seems right to explain that it calls kil’ei zera’im and kil’ei hakerem “two kinds of kilayim” – such as wheat and barley, [and] wheat and a grape seed; regarding one Rabbi Yoshiyah agrees that he receives lashes, and regarding the other he disagrees; but wheat and a grape seed, [and] barley and a grape seed, are all one kind. And further, there are texts in which it is written explicitly “wheat and a grape seed or barley and a grape seed”; and even [according to the texts] in which “and barley” is written there, its meaning is “or”, as if “or barley and a grape seed”. And therefore it could not establish [the case] as kilayim sown at one time, such as wheat, barley and a grape seed, where he receives two [sets of lashes], to exclude Rabbi Yoshiyah, since according to Rabbi Yoshiyah too he receives two. And so it is also proven in the Yerushalmi, in Maseches Kilayim, perek 8, which says there: It is written, “you shall not sow kilayim, your vineyard” – implying that he is not liable until he sows two species in the vineyard; these are the words of Rabbi Yoshiyah. Rabbi Yonasan says: one species. According to Rabbi Yonasan, [since it is written] “your field you shall not sow with kilayim”, for what purpose is “you shall not sow your vineyard with kilayim” stated? To make him liable [even] for one other species. According to Rabbi Yoshiyah, it is written “your field you shall not sow with kilayim” – for what purpose is “you shall not sow your vineyard with kilayim” stated? The colleagues said: for the warning – that if they warned him on account of “your field”, he receives lashes; on account of “your vineyard”, he receives lashes. Now if Rabbi Yoshiyah did not make one liable for kil’ei zera’im without a vineyard, if so, what is it asking – “why do I need ‘your vineyard’”? For it is not reasonable to explain that it asks why “your vineyard” is stated in a second prohibition, since it should have said it in one prohibition – for Rabbi Yonasan’s question is not of this kind; rather, it asks (thus) entirely (in its plain sense): why do I need “your vineyard” at all? Therefore they all certainly make one liable on account of kil’ei zera’im with two species; but regarding kil’ei zera’im they disagree, in that Rabbi Yoshiyah does not make him liable on account of the vineyard until there are two species together with a grape seed, such as wheat, barley and a grape seed, while Rabbi Yonasan makes him liable even for one species with a grape seed. And one need not wonder, according to Rabbi Yoshiyah, why for kil’ei zera’im he is liable with two species while for kil’ei hakerem three species are required: for he understands “sowing kilayim” as two species of seed, and a grape seed is not a species of seed; therefore the pasuk can be explained thus: “you shall not sow kilayim together with your vineyard”, that is, two species of seed. However, Rabbi Yehudah certainly implies in Maseches Kilayim (1:9) that he is not liable for kil’ei zera’im either until he sows wheat, barley and spelt, or two [grains of] wheat and [one of] barley, or two [of] barley and [one of] wheat, for he requires kil’ei zera’im together with “your field”. However, the pasuk “your animal you shall not mate with kilayim” – he cannot explain it this way.

ושני מינין בעלמא דרבנן - This implies that all species not written in this pasuk are Rabbinic, and here only grain, wine and oil are written. And in Perek Keitzad Mevarchin (Berachos 36a) too it says that the tithe of the caper is Rabbinic; and regarding a litra of dried figs, [in] Beitzah (3b), it also says that a thing that is counted is not nullified even in a thousand, [even] in a Rabbinic [prohibition]; and in the first perek of Rosh Hashanah (15b), the tithe of ordinary carobs is Rabbinic – even though the Sifrei exempts only shittah and tzalmonah carobs and not ordinary carobs. And all those expositions of the Sifrei that include even legumes, the fruit of trees and vegetables with regard to tithes are merely an asmachta.^[9] And in the same way we find all matters of shevus, and [those relaxed] for the sake of a mitzvah, in Perek Mashilin (Beitzah 36b), where it expounds in Toras Kohanim from “shabbason” [the law of] shevus, and it is merely an asmachta. And [the case of] a kohen into whose hand a fig of tevel came, in Perek Eilu Hein HaLokin (Makkos 19b), that a kohen who ate it receives lashes, etc. – this means makas mardus.^[10] And what it says at the end of HaAreil (Yevamos 81a), that a round cake [of figs] is not nullified – there the Rabbis enacted along the lines of Torah law. And what we say in Perek HaNoder Min HaYarak (Nedarim 55a), that “dagan” implies anything that is grain-like, even legumes – Rabbeinu Tam says that this is in vows, where we follow the language of people. And [as for] the dispute of Rabbi Eliezer and Rabbi Yehoshua in Perek HaOr VehaRotev (Chullin 120b) over “judge from it and [entirely] from it” or “judge from it and set it in its own place” – one can find that they disagree regarding a Torah law, such as liquid that comes out of grain, for example ears that he crushed and squeezed, as it says in the first perek of Shabbos (19a). And what we learned in Maseches Parah (11:3), regarding a pressed fig of terumah that fell into [the water of] the chatas, etc., up to where it says “one who eats it [is liable to] death” – this is not literal, but a Rabbinic stringency resembling a prohibition [punishable by] death; and the practical difference is to give him more lashes than other lashes, or to bury him among the completely wicked. Alternatively, it mentioned a pressed fig merely as a sign: that if a thing whose terumah is of Torah law fell into the water of the chatas [it is so]. And even though, whichever way you look at it, terumah of fruit is Rabbinic, nevertheless it is fitting to be more stringent, as a decree on account of grain, wine and oil, which are of Torah law. And in the Yerushalmi, at the beginning of (Perek) Maseches Maasros, it implies somewhat that the pasuk from which we expound the obligation of tithes on fruit and legumes is a full derivation, for it says there: “You shall surely tithe” – I would have said all things are obligated in tithes, etc., up to: I have only grain; legumes, from where? The Torah says “and all the tithe of the land” – to include garlic, cress and gargir. Could it be that I include even the leaves, vetch seed, turnip seed, radishes, onions and other garden seeds that are not eaten? The Torah says “of the seed of the land” – not all [the seed of] the land. “And of the fruit of the tree” – to include all the fruits of the tree. Or could it be that I include shittah, tzalmonah and girmah carobs? The Torah says “of the fruit of the tree” – and not all the fruit of the tree. Vegetables, from where? Issi ben Akavya says: the tithes for vegetables are of their words. This implies that vegetables are of their words [Rabbinic], but legumes and fruit are of Torah law. And one can explain that this is what it means: “of their words” – that is, they have no support from the pasuk, as there is for legumes and other fruit. And in the Sifrei too, in Parshas Aser Te’aser, it does not bring any pasuk for vegetables; for even though it teaches there “from where to include vegetables for tithes?”, it speaks of garlic, cress and gargir, as it teaches there explicitly. And Toras Kohanim, in Parshas Im Bechukosai, brings it briefly and does not elaborate there as the Sifrei does. And perhaps they did not want to attach vegetables to any pasuk, because there are matters in which it seemed right to them to be more lenient with vegetables than with other things – like that which it says in the Yerushalmi, in Maseches Challah, Perek Shtei Nashim: Rabbi Yochanan said: our teachers in the Diaspora used to separate terumos and maasros until the “rovim” came and abolished them. Who are the rovim? The troops (said). Rabbi Ze’ira and Rav Yehudah said in the name of Shmuel: challah of outside the Land – one eats and continues, and separates afterwards. Rava said in the name of Shmuel: they were concerned only for terumah of grain, wine and oil. Rabbi Abba said in the name of Rabbi Shmuel: they were concerned only for terumah gedolah; but for vegetables, even for terumah gedolah they were not concerned – for Issi ben Akavya taught: the tithes for vegetables are of their words.

אלא מעתה גבי מעשר בהמה דלא כתיב מעשר בקר [כו'] יתעשרו מזה על זה - And if you ask: but he could derive [it] by kal vachomer from new and old, which are not kilayim with each other and are not tithed [one for the other]! One can answer that one could say: sheep and goats prove [otherwise], for they are kilayim and are tithed [one for the other], as we included above from “tzon”, etc. And it answers: the pasuk says “the tenth”, which comes to divide – to give a tenth for this and a tenth for that; and it asks: sheep and goats too! For granted, were it not for “the tenth”, we would not derive [the separation of] sheep and goats from the kal vachomer of old and new, since the Torah included [them through] “tzon”, as it said; but now that “the tenth” is written, to divide for each and every species, it comes like “reishisam” nearby,^[11] which regarding grain comes to give a first portion for each and every species.

Notes

1. 1. This refers to the previous amud [Bechoros 53b], where the Gemara derived from “all the best (chelev) of the oil, and all the best of the wine and grain” (Bamidbar 18:12) – give a chelev to this and a chelev to that – that one may not separate terumah or tithes from one species for another. Wine and oil each have their own “chelev” in the pasuk; wine and grain share one, and two kinds of grain are not named separately at all.
2. 2. Kilayim are forbidden mixtures. Kil’ei zera’im is sowing two kinds of seed together (“your field you shall not sow with kilayim”, Vayikra 19:19); kil’ei hakerem is sowing seed together with a vine (Devarim 22:9), and its produce is forbidden even for benefit. Rashi calls grain with grain only Rabbinic; Tosfos below (ד"ה דגן ודגן) hold this is a scribal error, since kil’ei zera’im is Torah law.
3. 3. A kal vachomer is an argument from a lighter case to a weightier one: if the law holds where there is less reason for it, it surely holds where there is more.
4. 4. Rabbi Yoshiyah holds that one is liable for kil’ei hakerem only when he sows two species of grain together with a grape seed (charzan) in one throw of the hand (Chullin 82b). On his view wine and grain alone are not kilayim without a third species – hence the argument is recast “by means of something else”.
5. 5. By Torah law tithes apply only to grain, wine and oil (Devarim 14:23); the tithe of other produce, such as legumes and fruit, is Rabbinic (Rashi; see Tosfos ד"ה ושני מינין).
6. 6. Ma’aser beheimah: every tenth animal of the year’s newborn cattle, sheep and goats is holy (Vayikra 27:32). The pasuk reads “and all the tithe of cattle and flock” – it does not say “the tithe of the flock” separately. The question ends on the next amud [Bechoros 54b]: “they should be tithed one for the other!”
7. 7. New and old: animals born in different years. They are not tithed one for the other, as derived on the previous amud [Bechoros 53b].
8. 8. “Whatever I made abhorrent to you”: the derivation from “you shall not eat any abomination” (Devarim 14:3) that whatever the Torah forbade is also forbidden to eat (Chullin 115a).
9. 9. An asmachta is a pasuk the Sages cite as a support for a Rabbinic law; it is not a true derivation.
10. 10. Makas mardus: lashes of rebellion, given by Rabbinic law, as distinct from the Torah’s forty lashes.
11. 11. On the next amud [Bechoros 54b] Abaye derives from “reishisam” (their first part, Bamidbar 18:12) that each species needs its own terumah.