Talmud - Bava Kamma 69b בבא קמא ס״ט ב׳

In the case of one who purchases wine from among the Samaritans [Kutim], if there is reason to suspect that teruma and tithes were not separated, and he cannot separate them before the start of Shabbat, he acts as follows. If there are one hundred log of wine in the barrels, he says: Two log that I will separate in the future are teruma, as the mandated average measure of teruma is one-fiftieth; ten log are first tithe; and a tenth of the remainder, nine log, are second tithe. And he desacralizes the second tithe that he will separate in the future by transferring its sanctity onto money, and he may drink the wine immediately, relying on the separation that he will perform later. This is the statement of Rabbi Meir.

Rabbi Yehuda, Rabbi Yosei, and Rabbi Shimon prohibit one from doing so. The objection of these three Sages is presumably that this arrangement relies on the principle of retroactive designation, as at the time of the declaration the identity of the particular portions of wine that will be teruma and tithes is unknown, and these Sages do not accept this principle. It is apparent from this mishna that Rabbi Yehuda does not accept retroactive designation, and therefore he cannot be the one who said that the owner of the field may issue his declaration of relinquishment in the morning.

The Gemara says: Ultimately, why do you reverse the baraita that contains the opinions of Rabbi Yehuda and Rabbi Dosa? It is because there is a difficulty due to the contradiction between one statement of Rabbi Yehuda and another statement of Rabbi Yehuda. Now too, although you have reversed the baraita, a similar problem remains, as there is a difficulty due to the contradiction between one statement of Rabbi Yoḥanan and another statement of Rabbi Yoḥanan.

As you said, according to the opinion of Rabbi Yoḥanan: Do not say that anything that was picked from this vine by passersby shall be desacralized onto these coins. Rather, say that anything that will be picked from this vine shall be desacralized onto these coins. Apparently, Rabbi Yoḥanan here accepts the principle of retroactive designation. But it is established that Rabbi Yoḥanan does not accept the principle of retroactive designation.

As Rav Asi says that Rabbi Yoḥanan says: Brothers who divided property received as an inheritance are considered purchasers from each other, and as purchasers of land they must return the portions to each other in the Jubilee Year, at which point they may redistribute the property. This demonstrates that Rabbi Yoḥanan does not hold that it is retroactively clarified that each brother’s portion was designated for him directly upon their father’s death, but rather all the land was considered joint property until the brothers traded or bought their respective portions from each other at the time of the distribution of the estate.

In light of this objection, the Gemara retracts its previous assertion that Rabbi Yoḥanan reformulated the declaration of the pious ones. Rather, the pious ones actually declared in the past tense: Anything that was picked from this vine by passersby shall be desacralized onto these coins, i.e., the desacralizing took place after the grapes were stolen. If so, the question remains: Why did Rabbi Yoḥanan not accept the opinion of the pious ones, but instead ruled that the owner of an item cannot consecrate it after it has been stolen?

The Gemara answers: Rabbi Yoḥanan found a different unattributed mishna, which contradicts the opinion of the pious ones. As we learned in the mishna here (62b): One who steals an item after a thief has already stolen it, i.e., one who steals a stolen item, does not pay the double payment to the thief or to the prior owner. Why not? Granted that he does not pay to the first thief, as the verse states: “And it was stolen from the house of the man; if the thief shall be found he shall pay double” (Exodus 22:6), which indicates that the double payment applies in the case of an item “stolen from the house of the man,” i.e., from the owner’s jurisdiction, but not to an item stolen from the thief’s house. But let him pay the double payment to the owner, as it presumably still belonged to the owner when the second thief stole it.

Rather, must one not conclude from this that a stolen item is not under the full jurisdiction of either the owner or the thief? It is not under the jurisdiction of this one, the first thief, because it does not belong to him, and it is not under the jurisdiction of that one, the owner, because it is not in his possession. Therefore, neither of them can consecrate the stolen item.

The Gemara asks: Granted that this unattributed mishna disagrees with the mishna that cites the pious ones, but what did you see that led you to follow that unattributed mishna, the one that discusses the double payment? Let Rabbi Yoḥanan act, i.e., rule, in accordance with this unattributed mishna, which states the practice of the pious ones. On what basis did he choose one mishna over the other?

The Gemara answers: Rabbi Yoḥanan followed the mishna that discusses the double payment because there is a verse that supports it: “And when a man shall sanctify his house to be holy to the Lord” (Leviticus 27:14), from which it is derived: Just as one’s house is in his possession, so too anything that one consecrates must be in his possession, excluding items that have been stolen from him.

§ Abaye said: If Rabbi Yoḥanan had not said that the pious ones and Rabbi Dosa said the same thing, i.e., their rulings are identical, I would say that the pious ones accept the opinion of Rabbi Dosa, but Rabbi Dosa does not accept the opinion of the pious ones.

Abaye elaborates: The pious ones accept the opinion of Rabbi Dosa, for the following reason: And if the Sages instituted an ordinance for the sake of a thief, to prevent him from eating unredeemed fourth-year grapes, by allowing the owner to desacralize produce that is no longer in his possession, does it need to be said that they did so for the sake of innocent poor people, as Rabbi Dosa claimed? Conversely, Rabbi Dosa does not accept the opinion of the pious ones, as he says: It is for the sake of poor people that the Sages instituted an ordinance; but the Sages did not institute an ordinance for the sake of a thief, in line with the aforementioned principle: Feed it to the wicked man and let him die.

In a similar vein, Rava said: If Rabbi Yoḥanan had not said that the pious ones and Rabbi Dosa said the same thing, I would say that there is a fundamental difference between the cases of fourth-year produce and gleanings taken by the poor, as one could claim: Who is the tanna who taught the ruling of the pious ones? It is Rabbi Meir.

Doesn’t Rabbi Meir say that second tithe is property belonging to the Most High, rather than the possession of the one who separated it from his produce, and even so, with regard to redemption of the second tithe the Merciful One establishes it in his possession? As it is written concerning the second tithe: “And if a man will redeem any of his tithe, he shall add to it its fifth part” (Leviticus 27:31).

Although according to the opinion of Rabbi Meir, second tithe does not belong to the owner of the produce from which it was separated, nevertheless, with regard to redemption the Merciful One does distinguish between a stranger and one who separated it from his produce, as the Torah refers to the second tithe as “his tithe” and thereby decrees that he, the owner of the crop from which it is separated, can redeem it by adding one-fifth to its value, but no one else can do so. This indicates that although second-tithe produce is not in fact owned by the person, the Torah treats him as the owner of the produce.

With regard to a fourth-year vineyard as well, the Sages derive many of its halakhot from a verbal analogy between second tithe and fourth-year fruit, based on the use of the word “holy” in the context of fourth-year fruit and “holy” in the context of second tithe. It is written here, concerning fourth-year fruit trees: “And in the fourth year all its fruit shall be holy, for giving praise to the Lord” (Leviticus 19:24), and it is written with regard to second tithe: “And all the tithe of the land, whether of the seed of the land or of the fruit of the tree, is the Lord’s; it is holy” (Leviticus 27:30).

From this analogy it is derived: Just as in the case of the term “holy” that is written in connection to second tithe, even though it is property belonging to the Most High, with regard to redemption the Merciful One establishes it in the jurisdiction of the one who separated it, so too in the context of the word “holy” that is written in connection to the fourth-year vineyard, even though it is not his property, as it belongs to the Most High, with regard to desacralizing the Merciful One establishes it in the vineyard owner’s jurisdiction.

The effect of this determination is that even when the fruit is in his jurisdiction it is not his property, and yet he is able to desacralize it. And due to that reason the owner of the vineyard is able to desacralize the fruit even after a thief has taken it. Even in normal circumstances when one desacralizes his fourth-year fruit he is desacralizing fruit that does not belong to him. Consequently, there is no novelty in the ruling that one can desacralize fruit even after it has been taken by a thief.

But with regard to gleanings of the poor, since the extra sheaves that the poor people inadvertently take are the property of the owner of the field, it may be claimed that only when those sheaves are in his possession, i.e., they have not been taken by anyone else, can he relinquish his ownership of them, whereas when they are no longer in his possession he cannot relinquish his ownership of them. Consequently, the pious ones, who permitted redemption of fourth-year produce after it had been stolen, would not necessarily agree with Rabbi Dosa, who allowed the relinquishment of stolen sheaves.

In a similar vein, Ravina said: If Rabbi Yoḥanan had not said that the pious ones and Rabbi Dosa said the same thing, I would say: Who is the tanna who taught the opinion of the pious ones? It is Rabbi Dosa. I would have said this so that an unattributed mishna should not present a difficulty to the opinion of Rabbi Yoḥanan. And the reason why this would have resolved the difficulty is that Rabbi Yoḥanan

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

Bava Kamma 69b explores retroactive designation for tithing wine before Shabbat, weighing Rabbi Meir's leniency against objections from other sages.