Ma’aser Behemah Draws Us To Jerusalem’s Torah, If We Want It To

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by R. Gidon Rothstein

A Mitzvah Suspended

Only oxen, goats, and sheep may be offered as sacrifices, Sefer Ha-Hinuch 309 points out. For the purposes of the mitzvah of tithing newborn animals, goats and sheep are interchangeable (they can be tithed together), since the Torah refers to either as tzon (a word translated as “sheep,” not to be confused with sheep sheep).

The end of Behukkotai tells owners (men or women) to sacrifice a tenth of each year’s newborns of any of those kinds of animals. The fats will be given on the altar after the blood is sprinkled one time towards its base, and the rest eaten by the owner and his/her guests anywhere within the walls of Jerusalem. As opposed to most sacrifices, but similar to the Pesah, the kohanim do not receive any of this.

Rambam’s Mitzvat Aseh 78 says the obligation should apply throughout the world, regardless of whether the Beit Ha-Mikdash is standing. A Jew raising livestock in Argentina today should, in theory, have a mitzvah to find a tenth of all his newborn oxen or sheep. With a standing Mikdash, he would have to transport them to Israel for offer; in its absence, animals theoretically would be set aside to wait either for the rebuilding or until they incur a mum, an invalidating disfigurement. To then be eaten wherever.

Because of the worry people would not wait (or would fool themselves some wound was a mum), Hazal limited the mitzvah to the time of the Temple.

Hazal’s Ability to Negate Torah Law

Rambam seems to mean (although he does not say it explicitly) this as an example of Hazal’s power la’akor davar min ha-Torah, to suspend Torah law, to tell Jews not to observe a mitzvah. Usually, they exercise that power be-shev ve-al ta’aseh, telling us to refrain from action. Here, there seems a more active component, in that the owners who do not set aside a tenth of animals will then eat, sell, or work them. Whether and when Hazal can uproot a mitzvah actively, be-kum ve-aseh, is a thornier problem, but Rambam does not address it.

Aruch Ha-Shulhan He-Atid 209;13 suggests it doesn’t count as bittul mitzvah (or akirat davar) at all, because there is no way to fulfill it today. That’s a remarkable view, suggesting Hazal’s powers to abrogate Torah law included being allowed to suspend any Biblical rule unfulfillable in a certain time.

In the next paragraph, he questions why Hazal did not do the same for bechor, first-born animals, where the mitzvah is in force today, although it is generally circumvented. Aruch Ha-Shulhan says Hazal couldn’t suspend the rule because first-born animals have the unique quality of being kadosh mi-rehem, already sanctified in the womb. They also did not mandate selling the mother, because that would too obviously tell Jews to circumvent a mitzvah.

A Broad Prohibition, a Gaping Loophole

Rambam’s Prohibition 109 spots a Biblical rule against selling a tithed animal, based on the verse saying lo yiga’el, shall not be redeemed. Sifra understands the Torah to prohibit selling the animal even after it was slaughtered, even if it has a mum, is unfit for sacrifice (we will see below that the procedure for selecting animals for ma’aser made it possible for the selected animal to be one with a mum). Aruch Ha-Shulhan He-Atid tells us Ramam in Mishneh Torah held the sale did not take effect, the animal remained the property of the original owner.

[The rabbinic decision to remove the institution of ma’aser behemah in the absence of a Mikdash means owners who before could not sell certain animals now can. Aruch Ha-Shulhan notes much debate about whether selling a tithed animal after its death is a Biblical or rabbinic issue.]

With all the kerfuffle about selling tithed animals, Sefer Ha-Hinuch points out there is no concept of tevel for newborn animals. Harvested produce quickly reaches a point where it may not be eaten until tithes are taken (there are workarounds there, too, but they are not our current topic). Newborn animals never become tevel, meaning they may be eaten or sold as the owner wants, making the tithing almost voluntary—the owner must put newborns in a pen and tithe them at some point, but before they are penned and tithed, they can be eaten or sold.

(If they were sold before, Aruch Ha-Shulhan He-Atid 202 reminds us, the purchaser has no obligation of ma’aser behemahBechorot 56b inferred the idea from the verse’s telling us to give Hashem bechor banecha, the eldest of your sons, and to do so to your oxen and sheep. The idea of “first-born” is relevant only to those sons born to a man, and the verse is telling us the same is true of animals.

Except animals are kadosh mi-rehem, sanctified on their own, so the Gemara transfers the idea to ma’aser behemah, says the obligation to tithe relates only to one’s own flock. The verse’s stress on banechayour sons, is why partners are not included in ma’aser behemah either.)

Hazal tightened it up a bit, defined three times a year as goren ma’aser behemah, the harvest time for newborn animals, at which point the owner is rabbinically obligated to tithe them, may no longer sell or slaughter them. Even so, should the owner do so (in violation of the rabbinic rule), the animal will be kosher.

Those three times are the last day of Adar, the thirty-fifth day of the Omer (coming up this week!), and the last day of Elul. The dates were chosen to ensure there would be meat available for the upcoming major holidays. Their choice implies that for all that owners were allowed to sell the animals before they tithed them, they tended not to, so as to fulfill the mitzvah.

[A fascinating example of a place where people adhered to the more stringent standard, as opposed to other halachic situations, where people seek the most lenient path. People who bred livestock would not sell it early even though it was allowed, so they could more fully observe the mitzvah of ma’aser behemah. To unfreeze the animal markets, Hazal instituted fixed times for the mitzvah.]

The Procedure

Sefer Ha-Hinuch summarizes Bechorot 58b’s presentation of the procedure for tithing. The owner would take all the newborn animals of a species, including those with physical disqualifications from sacrifice, put them in a holding pen or corral, and open the gate only wide enough to let one animal through (to avoid confusion about which was number ten). Aruch Ha-Shulhan He-Atid tells us we would include animals that have become unfit because of human action (such as, God forbid, an animal worshipped as a god, with whom a man or woman engaged in what should be only marital relations, or used to buy a dog or pay for a prostitute’s services.)

Newborns are tithed by year, the newborns of one year not to be grouped with the newborns of another. Should it happen, however, Rambam holds the declared animal will count as ma’aser.

The mothers would be placed outside the pen, and call, to draw the babies out (forcing them out was not allowed, because 27;32 says asher ya’avor tahat ha-shavet, that passes under the shepherd’s staff, not that is forced to pass). As they left to find their mothers, the owner or his/her representative would count with a stick, and put a red mark on every tenth. Aruch Ha-Shulhan He-Atid 203 rules only the counting is indispensable; if the owner knows s/he has fifty newborns and takes five, they do not become ma’aser behemah. If, however, the owner does not use a stick and/or does not mark the tenth with red, the process still works.

Ma’aser Behemah as a Pull To Torah Study and Exposure

We could have grouped this tithe with the agricultural ones, given to the Levi or the poor, for example. The detail of its being a sacrifice, forcing the Jew to bring it to Jerusalem, and for the Jew to eat it rather than the kohen, led Sefer Ha-Hinuch to relate it specifically to ma’aser sheni, the second tithe of the crop a Jew brings to Jerusalem in four years of the shemittah cycle, and/or neta revai, the produce of the fourth year of a fruit tree’s growth.

All three draw the Jew to Jerusalem, the source of Torah for the Jewish people (in the time of a Mikdash especially, since the Sanhedrin will be sitting there, and they determine Torah for the nation). The Torah requires Jews to go, with at least their food needs taken care of (the ma’aser sheni or neta revai money, supplemented by the animals of ma’aser behemah; lodging was supposed to be free as well). [True, Jews were also supposed to go for holidays, but I think Sefer Ha-Hinuch would have said those weren’t opportunities for significant Torah learning, they were holidays to be celebrated.]

The owner does not have to go him/herself, but whoever s/he sends will return enriched by the experience, will presumably share the new connection to Torah with those who stayed back. In every household (says Sefer Ha-Hinuch, assuming a pervasive farming and animal husbandry), there will be someone wise in Torah knowledge, so the nation will be filled with those who know God.

By having such a person in the family—Sefer HaHinuch is about to assume Torah knowledge rubs off with regular interaction—the whole family will grow in their knowledge and connection to God.

As always, there is much more here, but we will content ourselves with a first picture of ma’aser behemah, what it accomplished when it was in effect, and why we no longer have it today.

About Gidon Rothstein

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