Halacha
הלכה א
אָסוּר לִמְכֹּר אֶת הַדְּמאי לְעַם הָאָרֶץ אוֹ לִשְׁלֹחַ לוֹ דְּמַאי מִפְּנֵי שֶׁהוּא מְסַיֵּעַ לָזֶה לֶאֱכל דָּבָר הָאָסוּר. אֲבָל מוֹכְרִין וּמְשַׁלְּחִין אוֹתוֹ לְתַלְמִידֵי חֲכָמִים שֶׁאֵין תַּלְמִיד חָכָם אוֹכֵל עַד שֶׁיְּעַשֵּׂר אוֹ עַד שֶׁיּוֹדִיעוֹ אָדָם נֶאֱמָן שֶׁזֶּה מְעֻשָּׂר:
כסף משנה
1.
It is forbidden to sell demai to a common person or to send demai [as a present to a common person], because one assists him in partaking of forbidden food. It can, however, be sold or sent to a Torah scholar, for a Torah scholar will not partake of it until he tithes it or until a trustworthy person tells him that it has been tithed.1Produce which definitely has not been tithed may not be sent even to a Torah scholar. It may, however, be sent to him in a pressing situation (Chapter 6, Halachah 6).הלכה ב
כָּל הַמַּשְׁפִּיעִין בְּמִדָּה גַּסָּה כְּגוֹן הַסִּיטוֹנוֹת וּמוֹכְרֵי תְּבוּאָה מֻתָּרִין לִמְכֹּר אֶת הַדְּמַאי וּלְשַׁלְּחוֹ. מִפְּנֵי שֶׁהֵן מוֹסִיפִין עַל הַמִּדָּה הִתְקִינוּ חֲכָמִים שֶׁיִּהְיֶה הַלּוֹקֵחַ אוֹ זֶה שֶׁנִּשְׁתַּלְּחוּ לוֹ הוּא הַמַּפְרִישׁ מַעֲשֵׂר דְּמַאי. אֲבָל הַמּוֹדְדִין בְּמִדָּה דַּקָּה הוֹאִיל וְהַמּוֹכֵר מִשְׂתַּכֵּר הוּא מַפְרִישׁ וְלֹא יִמְכֹּר וְלֹא יִשְׁלַח אֶלָּא מְתֻקָּן:
כסף משנה
2.
All of those who add to the measure when they sell in large quantities, e.g., wholesalers and grain merchants are permitted to sell and send demai [as a present].2I.e., to Torah scholars, but not to common people, as stated in the previous halachah. Since they add to the measure,3And the purchaser receives more than what he deserves [the Rambam's Commnentary to the Mishnah (Demai 2:4)]. our Sages ordained that the purchaser or the recipient be the one who separates the tithes from the demai.4Hence, the purchaser must assume that the produce is untithed. When, by contrast, people measure with a small measure, since the seller is the one who profits, he should make the separations. [Hence,] he should not sell or send [produce] unless the appropriate separations have been made.הלכה ג
וְכַמָּה הִיא מִדָּה גַּסָּה. בְּיָבֵשׁ חֲצִי סְאָה וּבְלַח מִדָּה שֶׁמַּחְזֶקֶת שְׁוֵה דִּינָר מֵאוֹתוֹ דָּבָר הַלַּח:
כסף משנה
3.
What is meant by a large measure? With regard to dry measure, half a se'ah;5A se'ah is 8.3 liter in modern measure according to Shiurei Torah and 16.2 liter according to Chazon Ish. with regard to liquid measure, something that holds a dinar's6A dinar is a silver coin of significant value. worth of the said liquid.הלכה ד
סַלֵּי זֵיתִים וַעֲנָבִים וְקֻפּוֹת שֶׁל יָרָק אַף עַל פִּי שֶׁהוּא מוֹכְרָן אַכְסָרָה אָסוּר לְמָכְרָן דְּמַאי:
כסף משנה
4.
Even though a person sells baskets of olives and grapes or containers of vegetables by estimation,7I.e., instead of weighing the produce, the seller gives the purchaser a full basket or container, whatever its weight might be. One might think that since the seller is selling by estimation, he is considered as being generous like the wholesalers mentioned above. The Rambam (based on Demai 2:5) teaches us that this is not so.The Ra'avad questions the Rambam's ruling, noting that the mishnah quotes Rabbi Yossi as exempting the seller in this situation and does not mention a differing opinion. The Radbaz and the Kessef Mishneh explain that the wording of the mishnah indicates that Rabbi Yossi's view is being cited as a minority opinion and not as a view accepted by all. he is forbidden to sell them as demai.8I.e., he must make the required separations first.
הלכה ה
אָמַר אֶחָד מֵהֶן בּוֹא וּנְתַקֵּן הַפֵּרוֹת הָאֵלּוּ בֵּין שֶׁהָיָה מוֹכֵר בְּדַקָּה אוֹ בְּגַסָּה הַמּוֹכֵר מַפְרִישׁ תְּרוּמַת מַעֲשֵׂר וְהַלּוֹקֵחַ מַפְרִישׁ מַעֲשֵׂר שֵׁנִי וְדָבָר זֶה תְּנַאי בֵּית דִּין הוּא:
כסף משנה
5.
If one of them, [either the seller or the buyer] - whether the sale is made with a small measure or a large measure9I.e., the individual who would not be obligated to make the separations suggests that they be made as a joint effort, thus obligating himself even though he would otherwise be exempt (Radbaz in response to the Ra'avad). - says: "Come let us make the separations for this produce," the seller should separate terumat ma'aser and the purchaser should separate the second tithe.10I.e., the separations are not made equally. This is an edict of the court.הלכה ו
חָבֵר וְעַם הָאָרֶץ שֶׁיָּרְשׁוּ אֶת אֲבִיהֶן עַם הָאָרֶץ יָכוֹל הוּא לוֹמַר טֹל אַתָּה חִטִּים שֶׁבְּמָקוֹם פְּלוֹנִי וַאֲנִי חִטִּים שֶׁבְּמָקוֹם פְּלוֹנִי. אַתָּה יַיִן שֶׁבְּמָקוֹם פְּלוֹנִי וַאֲנִי יַיִן שֶׁבְּמָקוֹם פְּלוֹנִי. אֲבָל לֹא יֹאמַר טֹל אַתָּה חִטִּים וַאֲנִי שְׂעוֹרִים. טֹל אַתָּה הַלַּח וַאֲנִי הַיָּבֵשׁ. מִפְּנֵי שֶׁזֶּה מוֹכֵר דְּמַאי:
כסף משנה
6.
When a chavair and a common person inherit [the estate] of their father who was a common person,11And thus we cannot assume that the produce was tithed beforehand. [the chavair] may say: "Take the wheat in this-and-this place and I will take the wheat in this-and-that place. Take the wine in this-and-this place and I will take the wine in this-and-that place."12I.e., it is not considered as if he is exchanging one batch of produce for another and he is not required to separate tithes for his brother's portion. The rationale is that with regard to matters concerning Rabbinic Law, including demai, we apply the principle of bereirah, and retroactively - after the division of the property has been made - we consider that from the outset, it was as if the estate had originally been bequeathed to each of the sons separately, according to this division. He should not say: "Take wheat and I will take the barley. Take the produce that is fresh and I will take what is dry," for this is considered as selling demai.13For we do not apply the principle of bereirah with regard to two different types of produce.הלכה ז
מִי שֶׁהָיָה נוֹשֵׂא יָרָק וְכָבֵד עָלָיו מַשָּׂאוֹ וְרָצָה לְהַשְׁלִיךְ מִמֶּנּוּ עַל הַדֶּרֶךְ כְּדֵי לְהָקֵל מִמַּשָּׂאוֹ. לֹא יַשְׁלִיךְ עַד שֶׁיְּעַשֵּׂר. כְּדֵי שֶׁלֹּא תְּהֵא תַּקָּלָה לְעַמֵּי הָאָרֶץ שֶׁאוֹכְלִין אוֹתוֹ בִּדְמַאי:
כסף משנה
7.
When a person is carrying [a load of] vegetables,14I.e., produce that is demai which had reached the stage where the tithes were required to be separated from it. his load becomes heavy for him and he desires to cast some vegetables on the road to lessen his burden, he should not cast them away until he tithes them.15If produce is declared hefker, ownerless, before the obligation to tithe becomes incumbent upon it, there is no need to tithe it afterwards. If, however, that obligation has already taken effect, declaring produce ownerless does not remove that obligation (see Chapter 3, Halachah 20; Radbaz). [This is necessary] so that it shall not create a stumbling block for the common people who consume demai.הלכה ח
הַלּוֹקֵחַ יָרָק מִן הַשּׁוּק וּמָשַׁךְ אַף עַל פִּי שֶׁלֹּא שָׁקַל וְלֹא מָדַד וְלֹא נָתַן דָּמִים וְנִמְלַךְ לְהַחֲזִיר לְבַעַל הַחֲנוּת לֹא יַחֲזִיר עַד שֶׁיְּעַשֵּׂר:
כסף משנה
8.
When a person purchases vegetables16I.e., produce that is demai which had reached the stage where the tithes were required to be separated from it. from the market and draws them into his possession, even though he did not weigh them, measure them, or pay for them, if he changes his mind and returns them to the owner of the store,17I.e., the owner of the store must consent to accept the produce, for as explained in the following note, the purchaser has already acquired the produce. See the Rambam's Commentary to the Mishnah (Demai 3:2). he should not return them until he tithes them.18According to Rabbinic Law, once a person draws movable property (the vegetables) into his possession, he acquires it. The fact that he does not perform any of the other activities mentioned does not detract from his acquisition. Hence, by returning it to the seller, he is in effect selling it back to him. Hence, he is required to tithe it.הלכה ט
הַמּוֹצֵא פֵּרוֹת בַּדֶּרֶךְ. אִם רֹב מַכְנִיסִין לְבָתֵּיהֶן פָּטוּר מִלְּעַשֵּׂר שֶׁעֲדַיִן לֹא נִקְבַּע לְמַעֲשֵׂר. וְאִם רֹב מַכְנִיסִין לִמְכֹּר בַּשּׁוּק הֲרֵי אֵלּוּ דְּמַאי. וּמֶחֱצָה לְמֶחֱצָה דְּמַאי:
כסף משנה
9.
[The following laws apply when a person] discovers produce on the way. If the majority [of the local populace] bring the produce to their homes, he is not required to tithe it, for the obligation to tithe has not yet taken effect.19Since the obligation to tithe will take effect when the person brings it home, we assume that he tithed it. Hence, the person who discovers it is not required to tithe it again [(the Rambam's Commentary to the Mishnah (Machshirin 2:10)]. It must be noted that the Radbaz and many other commentaries offer different interpretations of this law. Indeed, the Rambam in Chapter 3, Halachah 22, appears to operate according to another perspective. If, however, the majority bring it to sell in the marketplace, it is considered as demai.20The person bringing his produce to the marketplace may not tithe it until he reaches there, because until that point it is not common to partake of it in an substantial manner only as a snack. Hence, it is possible that it is tevel (ibid.). Nevertheless, the possibility also exists that the tithes have been separated and hence it is considered as demai. If the ratio is half and half, it is considered as demai.21As a safeguard. One might ask: Seemingly, the situation is a sefek-sefeikah, a situation where the doubt is compounded, i.e., perhaps it came from those who bring it home. Even if it came from those who bring it to the marketplace, perhaps these individuals tithed it. Nevertheless, extra stringency is shown with regard to the prohibition against demai than is shown with regard to other prohibitions (Kessef Mishneh to Halachah 13).הלכה י
נְטָלָן לְאָכְלָן וְנִמְלַךְ לְהַצְנִיעַ לֹא יַשְׁהֶא אוֹתָן עַד שֶׁיְּעַשֵּׂר כְּדֵי שֶׁלֹּא יִהְיֶה תַּקָּלָה לַאֲחֵרִים. וְאִם נְטָלָם מִתְּחִלָּה שֶׁלֹּא יֹאבְדוּ הֲרֵי זֶה מֻתָּר לַשְׁהוֹתָן אֶצְלוֹ עַד שֶׁיִּרְצֶה לְאָכְלָן אוֹ לְשָׁלְחָן אוֹ לְמָכְרָן וִיעַשֵּׂר אוֹתָן דְּמַאי:
כסף משנה
10.
If a person took [the produce]22I.e., produce discovered in a community where it is customary to bring produce to the marketplace. with the intent of partaking of it and changed his mind [and decided to] store it, he should not keep it until he tithes it, so that it will not present a stumbling block to others.23I.e., the members of his household who might partake of it under the impression that it has been tithed. If he took it originally only so that it would not perish,24I.e., he took it without the intent of acquiring it as his own, but only to protect it from enemy armies, a fire, or the like [the Rambam's Commentary to the Mishnah (Demai 3:3)]. he can store it25Without tithing it. Since he did not acquire it as his own, he is under no obligation to tithe it. until he desires to partake of it, send it [as a present], or sell it. At that point, he should tithe it as demai.הלכה יא
קְנִיבַת יָרָק הַנִּמְצֵאת בַּגִּנָּה הֲרֵי זוֹ פְּטוּרָה מִן הַדְּמַאי. וְשֶׁל בַּעַל הַבַּיִת הַנִּמְצֵאת בַּבַּיִת חַיֶּבֶת. שֶׁעַל גַּבֵּי הָאַשְׁפָּה בְּכָל מָקוֹם מֻתֶּרֶת:
כסף משנה
11.
The extremities of vegetables that are found in a garden26I.e., the leaves pruned by a gardener. Our translation is based on the Rambam's Commentary to the Mishnah (Ediot 3:3). Compare to Hilchot Terumah 11:10. are exempt from [the laws of] demai.27For they discard produce that is really unsuitable for ordinary consumption. Those that belong to a homeowner and found in his home28The tops and the stems of vegetables that are discarded by a homeowner when preparing the vegetables to be served. are obligated [to be tithed].29For even though the homeowner may not desire to serve them, they are still fit to be eaten. Those on a dung heap - wherever it is found - are permitted.30For they are no longer considered as food.הלכה יב
הַנּוֹתֵן לְפֻנְדָּקִית לְבַשֵּׁל לוֹ וְלֶאֱפוֹת לוֹ מְעַשֵּׂר אֶת שֶׁהוּא נוֹתֵן לָהּ כְּדֵי שֶׁלֹּא יִהְיֶה תַּקָּלָה לַאֲחֵרִים. וּמְעַשֵּׂר אֶת שֶׁהוּא נוֹטֵל מִמֶּנָּה מִפְּנֵי שֶׁהִיא חֲשׁוּדָה לְהַחֲלִיף שֶׁל זֶה [בָּזֶה]. אֲבָל הַנּוֹתֵן לַחֲמוֹתוֹ בֵּין שֶׁנָּשָׂא בִּתָּהּ בֵּין שֶׁאֵרְסָהּ אוֹ לִשְׁכֶנְתּוֹ פַּת לֶאֱפוֹת וְתַבְשִׁיל לְבַשֵּׁל אֵינוֹ חוֹשֵׁשׁ לֹא מִשּׁוּם מַעֲשֵׂר וְלֹא מִשּׁוּם שְׁבִיעִית מִפְּנֵי שֶׁאֵינָהּ חֲשׁוּדָה לְהַחֲלִיף. בַּמֶּה דְּבָרִים אֲמוּרִים בִּזְמַן שֶׁנָּתַן לָהּ שְׂאוֹר לְעִיסָה וְתַבְלִין לִקְדֵרָה. אֲבָל אִם לֹא נָתַן חוֹשֵׁשׁ מִשּׁוּם מַעַשְׂרוֹת וְחוֹשֵׁשׁ מִשּׁוּם שְׁבִיעִית. וּלְפִיכָךְ אִם הָיְתָה שְׁנַת שְׁמִטָּה אָסוּר שֶׁמָּא הַשְּׂאוֹר מִסְּפִיחֵי שְׁבִיעִית הוּא:
כסף משנה
12.
When a person gives [produce] to a female inn-keeper to cook or bake for him,31In his Commentary to the Mishnah (Demai 3:5), the Rambam explains that guests would give the mistress of an inn flour and meat and she would prepare meals for them. As the Rambam states, this woman is suspect to exchange the food given for other food of the same type, but of lesser quality. She rationalizes that since she cooks for her guests for little or no payment, she is entitled to make this exchange (Chullin 6b). he must tithe what he gives her - lest it present a stumbling block to others32I.e., he must tithe the produce he gives her, lest she give it to others and they partake of it without tithing it. - and what he receives from her,33Lest she have given him untithed produce. for she is suspect to exchange produce belonging to one person for that belonging to another. He may, by contrast, give produce to his mother-in-law - whether her daughter is his arusah or his wife34According to Jewish Law, marriage is a two-staged process involving erusin, "consecration," and nisuin, "marriage." After erusin, the marriage bond has been established and the woman cannot marry another man without a divorce. Nevertheless, the couple do not begin living together as man and wife until the second stage, nisuin. The Rambam is clarifying that even if the couple have not begun living together, he still trusts his mother-in-law. - or to his neighbor to cook or bake for him and he need not show concern, neither for tithes, nor for produce of the Sabbatical year,35I.e., we do not suspect that he gave produce from the sixth year and these women exchanged it for produce of the seventh year which is forbidden. because [these individuals] are not suspect to exchange produce.36This appears to represent a reversal of the Rambam's ruling in his Commentary to Mishnah (Demai 3:6). The Radbaz explains that the Rambam's ruling here is based on the Jerusalem Talmud.When does the above apply? When he [also] gave her yeast for a dough and spices for a cooked dish. If he did not, we must show concern because of the tithes and because of [produce of] the Sabbatical year.37For even though she is not suspect to exchange, we fear that she used forbidden yeast or spices. Therefore in the Sabbatical year, [the bread] is forbidden, for perhaps the yeast came from produce that grew in the Sabbatical year.
הלכה יג
הַמּוֹלִיךְ חִטָּיו לְטוֹחֵן עַם הָאָרֶץ הֲרֵי הֵן בְּחֶזְקָתָן שֶׁאֵינוֹ חָשׁוּד לְהַחֲלִיף. הוֹלִיכָן לְטוֹחֵן עַכּוּ''ם הֲרֵי הֵם דְּמַאי שֶׁמָּא הֶחֱלִיפָן בְּחִטִּים שֶׁל עַם הָאָרֶץ. וְכֵן הַמַּפְקִיד אֵצֶל עַם הָאָרֶץ הֲרֵי הֵן בְּחֶזְקָתָן שֶׁאֵינוֹ חָשׁוּד לְהַחֲלִיף הַפִּקָּדוֹן:
כסף משנה
13.
When a person brings wheat38From which the tithes have already been separated. to a miller who is a common person, he may assume that their status is unchanged.39Both with regard to tithes and the prohibitions of the Sabbatical year. He is not suspect to exchange it [for other wheat].40Though we suspect that he is lax in his observance of the mitzvah of tithing, we do not suspect that he will commit a transgression that involves a colleague's money (see Gittin 61b). If he brought them to a gentile miller, they are demai; [we suspect] that he exchanged it for the wheat of a common person.41Who also gave him wheat to grind without separating the tithes from it [the Rambam's Commentary to Mishnah (Demai 3:6)]. We do not know whether he tithed them. Therefore, they are considered as demai.The Ra'avad questions the Rambam's ruling: Seemingly, the situation is one of compounded doubt (sefek-sefeikah). Perhaps the gentile did not exchange the grain. Even if he exchanged it, perhaps he exchanged it with grain from a common person which need be tithed only because of a doubt. (The Ra'avad himself accepts the Rambam's ruling, but uses it as support for his thesis that there is an obligation for a Jew to tithe produce belonging to a gentile if it comes into his possession, for he maintains that the possibility is that the gentile exchanged it with his own produce.)
The Kessef Mishneh does not accept that thesis and instead offers a resolution, explaining that extra stringency is shown with regard to the prohibition against demai than is shown with regard to other prohibitions. He supports that contention based on Shabbat 23a which states that the majority of the common people separate tithes and yet our Sages imposed stringencies. Similarly, if one entrusts [produce] to a common person for safe-keeping, it is permitted. He is not suspect to exchange the produce entrusted to him.42With regard to produce given to a gentile for safekeeping, see Halachah 15.
הלכה יד
עַם הָאָרֶץ שֶׁהָיָה מִשְׁתַּמֵּשׁ בַּחֲנוּתוֹ שֶׁל חָבֵר אַף עַל פִּי שֶׁהֶחָבֵר יוֹצֵא וְנִכְנָס הֲרֵי זֶה מֻתָּר וְאֵינוֹ חוֹשֵׁשׁ שֶׁמָּא הֶחֱלִיף:
כסף משנה
14.
When a common person is managing a store belonging to a chavair, it is permitted [to partake of the produce].43Without tithing. We do not suspect that he exchanged it. [This applies] even if the chavair [only] goes in and out [of the store from time to time].44And is not involved in the management of every particular of its operation. This reflects a general principle with regard to questions involving the kashrut of a person's produce. As long as the owner makes his presence known from time to time, his workers - even gentiles - are not suspected to exchange his produce with other produce.Implied is that if the owner does not enter from time to time, we would suspect that the worker would exchange the produce. The Radbaz notes that the previous ruling implies that a Jew who is a common person would not be suspect to exchange the produce even if the owner did not enter from time to time. He therefore suggests that this phrase be omitted from the text. There are, however, other commentaries who offer explanations why a manager is judged more stringently than the bailee mentioned in the previous halachah. After all, he is working on an ongoing basis.
הלכה טו
הַמַּפְקִיד פֵּרוֹתָיו אֵצֶל הָעַכּוּ''ם הֲרֵי הֵן כְּפֵרוֹתָיו שֶׁל עַכּוּ''ם שֶׁחֶזְקָתוֹ לְהַחֲלִיף הַפִּקָּדוֹן. וְהֵיאַךְ דִּינָם. אִם הָיוּ פֵּרוֹת שֶׁעֲדַיִן לֹא נִגְמְרָה מְלַאכְתָּן וְנִגְמְרוּ בְּיַד יִשְׂרָאֵל אַחַר שֶׁלָּקַח הַפִּקָּדוֹן מַפְרִישׁ מַעַשְׂרוֹתָיו כְּמוֹ שֶׁבֵּאַרְנוּ. וְאִם הָיוּ פֵּרוֹת שֶׁהִפְקִיד טְבָלִים וְנִגְמְרָה מְלַאכְתָּן חַיָּב לְהַפְרִישׁ שֶׁמָּא לֹא הֶחֱלִיף הָעַכּוּ''ם. וּלְפִיכָךְ יֵרָאֶה לִי שֶׁהַמַּעַשְׂרוֹת שֶׁיַּפְרִישׁ סָפֵק. אֲבָל אִם הִפְקִיד חֻלִּין מְתֻקָּנִין אֵינוֹ צָרִיךְ לְהַפְרִישׁ כְּלוּם שֶׁאֲפִלּוּ הֶחֱלִיף הָעַכּוּ''ם פְּטוּרִין כְּמוֹ שֶׁבֵּאַרְנוּ בְּהִלְכוֹת תְּרוּמוֹת (דברים יח ד) "דְּגָנְךָ" וְלֹא דְּגַן עַכּוּ''ם:
כסף משנה
15.
When produce was entrusted to a gentile for safekeeping, [the produce one receives is] considered as the gentile's produce, for we assume that he exchanged it for his own produce.What are laws that govern it? If the tasks necessary to prepare the produce were not completed as of yet and they were completed by the Jew after he took back the produce he entrusted, he must separate the tithes as we explained.45Hilchot Terumot 1:11. If the produce that he entrusted was tevel and the tasks necessary for its preparation were completed, he is obligated to separate the tithes, for perhaps the gentile did not exchange it. For this reason, it appears to me, that the status of the tithes he separates is doubtful.46I.e., since it is possible that the gentile did exchange, it is possible that there is no obligation to tithe.
If he entrusted ordinary produce from which the required separations were made, he is not obligated to separate anything, for even if the gentile exchanged [it for his own], it is exempt. As we explained in Hilchot Terumot,47Hilchot Terumot, loc cit.. [the obligation to tithe] is on "your grain," and not the grain of a gentile.48We do not suspect that the gentile exchanged the grain with grain belonging to a Jew who did not separate the tithes, because it is not that common for people to entrust their produce to others. In contrast, people do bring containers of grain to a miller. Hence as mentioned in Halachah 13, we fear that the miller exchanged one person's grain with another's (the Radbaz and Kessef Mishneh in resolution of the Ra'avad's objections).