Yadayim, Chapter 4, Mishnah 3. This is by far the longest mishnah in our maseches, and quite possibly one of the longest anywhere in Mishnayos, but the reader should be reassured at the outset: length here does not mean difficulty. It is a long, orderly debate, and once we follow the steps it reads clearly from beginning to end.
Our mishnah opens the way several others in these chapters do, with the phrase "Bo bayom amru." The words "bo bayom" point to that celebrated day on which Rabbi Elazar ben Azaryah was installed at the head of the yeshiva, a day when question after question was brought before the Sages and settled. What follows is one more item from that day's agenda.
The Question
"Amon uMoav, mah hen bashvi'is?" What is the status of the lands of Amon and Moav with regard to shvi'is, the sabbatical year? By Torah law, the obligations of shvi'is and of the tithes apply in Eretz Yisrael. But Jews lived in other lands as well, and some of those lands were treated as subordinate to Eretz Yisrael, so that certain obligations were extended to them by rabbinic enactment. The question of the day was which tithe the residents of Amon and Moav should be separating during the seventh year.
"Gazar Rabbi Tarfon": Rabbi Tarfon issued his ruling, and it was "ma'aser ani," the tithe set aside for the poor. Opposing him, "vegazar Rabbi Elazar ben Azaryah" - his verdict was "ma'aser sheni," the second tithe. Nothing here is a mere technicality; the two positions lead to entirely different outcomes. Produce designated as the poor man's tithe is simply claimed by the poor themselves. Produce designated as the second tithe remains the owner's, but he must carry it up to Yerushalayim and eat it there, or else redeem it for money and use that money for food consumed inside the city.
Who Carries the Burden of Proof?
Rabbi Yishmael now spoke up, addressing his colleague by name: "Elazar ben Azaryah." The demand he pressed was "alecha re'ayah lelamed, she'atah machmir, shekol hamachmir alav re'ayah lelamed": the duty of producing evidence rests with you, since yours is the more restrictive ruling, and whoever rules restrictively must always be the one to back it up.
The answer came back at once: "Yishmael achi, ani lo shanisi miseder hashanim. Tarfon achi shinah, ve'alav re'ayah lelamed." Yishmael, my brother, I am not the one who has stepped outside the regular order of the years. That was done by my brother Tarfon, and so it is he who owes us a proof.
The force of that reply lies in the seven year rotation of the tithes. Years one and two call for ma'aser sheni, year three for ma'aser ani; years four and five return to ma'aser sheni, and year six once again brings ma'aser ani. Notice that the poor man's tithe never appears twice in a row. Assigning ma'aser sheni to the seventh year in Amon and Moav slips comfortably into that rotation. Assigning ma'aser ani there sets it immediately on the heels of the sixth year's ma'aser ani, disrupting the alternation, and whoever disrupts the pattern is the one who must defend his view.
Mitzrayim Versus Bavel
Rabbi Tarfon answered with an argument drawn from Egypt: "Heishiv Rabbi Tarfon: Mitzrayim chutz la'aretz." Egypt lies beyond the borders of Eretz Yisrael, and "Amon uMoav" stand likewise "chutz la'aretz." Therefore, "mah Mitzrayim ma'aser ani bashvi'is" - since in Egypt the seventh year is given over to the poor man's tithe - so too, he argued, the fields of Amon and Moav should yield that same tithe in that year.
Rabbi Elazar ben Azaryah replied with a rival precedent: "Heishiv Rabbi Elazar ben Azaryah: Bavel chutz la'aretz." Babylonia too sits outside the Land, and the same is true of "Amon uMoav." Hence, "mah Bavel ma'aser sheni bashvi'is" - in Bavel the seventh year is a year of the second tithe - and by that logic these territories should follow Bavel. Why should Egypt serve as the model rather than Babylonia?
Rabbi Tarfon then unpacked the reasoning behind the Egyptian precedent: "Amar Rabbi Tarfon: Mitzrayim shehi kerovah, asa'uha ma'aser ani." Because Egypt lies close to Eretz Yisrael, the Sages directed its seventh year crops to the poor man's tithe, "sheyihyu aniyei Yisrael" - so that the needy of Israel might be "nismachim aleha bashvi'is," leaning upon that produce through the sabbatical year, when the soil at home gives them nothing. "Af Amon uMoav, shehem kerovim": these lands are close by as well, so the identical measure should be adopted for them, letting the poor of Eretz Yisrael draw upon their harvests in the seventh year.
Material Gain, Spiritual Loss
The retort was pointed. "Harei atah kemechannen mamon," you present yourself as one bestowing a monetary favor, "ve'ein atah ella" - but in truth you are nothing other than "kemafsid nefashos," one who brings about a loss of life. And further: "Kovei'a atah es hashamayim," you are withholding from the sky, "millahorid tal umatar," its dew and its rain.
He grounded the charge in a verse from Malachi. "Hayikva adam Elokim": is it conceivable that a man would rob God? "Ki atem kov'im osi" - and yet you are the ones robbing Me. "Va'amartem bameh kevanucha," and you ask in what way you have robbed Him; the answer is "hama'aser vehatrumah," in the tithes and the terumah. Where the tithes are mishandled, the blessing held back is the rain.
Rabbi Yehoshua's Two Distinctions
At this point Rabbi Yehoshua joined the discussion. "Hareini kemeishiv al Tarfon achi": I am about to offer a response to my brother Tarfon, "aval lo le'inyan devarav" - though not along the lines of the argument we have just heard.
His first distinction concerned the age of the two precedents. "Mitzrayim ma'aseh chadash": what was instituted for Egypt is a recent enactment, while "uBavel ma'aseh yashan," the Babylonian arrangement is an ancient one, and "vehanidon shelifaneinu ma'aseh chadash" - the question before us is itself new. Hence, "yidon ma'aseh chadash," a new matter should be settled, "mima'aseh chadash," on the basis of another new matter, and not, "ve'al yidon ma'aseh chadash" from something old. Measured by that yardstick, Egypt is the proper comparison.
Then came a second distinction, concerning the source of each practice. "Mitzrayim ma'aseh zekeinim": the Egyptian arrangement was the work of the Sages, whereas "uBavel ma'aseh nevi'im," the Babylonian one was established by the Prophets, and "vehanidon shelifaneinu ma'aseh zekeinim" - the matter now being decided belongs to the Sages. Accordingly, "yidon ma'aseh zekeinim," a ruling of the Sages is to be derived, "mima'aseh zekeinim," from another ruling of the Sages, and not "mima'aseh nevi'im," from what the Prophets ordained.
The Vote and Its Surprising Confirmation
"Nimnu vegameru": a count was taken and a decision reached, that in the lands of Amon and Moav the tithe separated during the seventh year is the poor man's tithe.
The mishnah closes with a moving postscript. "Uchesheba Rabbi Yose ben Durmaskis eitzel Rabbi Eliezer beLud": Rabbi Yose ben Durmaskis paid a visit to Rabbi Eliezer in Lud, and Rabbi Eliezer asked him, "Mah chiddush hayah lachem," what fresh ruling had emerged among you "bebeis hamedrash hayom," in the study hall today? What was the news?
His guest replied: "Nimnu vegameru." A count had been taken, and the conclusion reached was that in Amon and Moav the seventh year calls for the poor man's tithe.
"Bachah Rabbi Eliezer ve'amar": Rabbi Eliezer broke into tears and cited the words of Tehillim, "Sod Hashem lirei'av," the secret of Hashem belongs to those who fear Him, "uveriso lehodiam," and He makes His covenant known to them. "Tzei ve'emor lahem: Al tachoshu leminyanchem" - go and tell them there is no need to fret over their tally, no reason to fear that they got it wrong. "Mekubal ani," this came down to me as a received teaching, "meRabban Yochanan ben Zakkai," who had it from his own rebbi, "sheshama meirabbo, verabbo meirabbo," and that rebbi from his, "ad halachah leMoshe miSinai," reaching all the way back to a law given to Moshe at Sinai: in those lands the seventh year is a year of the poor man's tithe.
Bartenura on "Halachah leMoshe miSinai"
The Bartenura takes up that closing expression. His comment is "lav davka," the words are not to be understood at face value, "de'ein zeh min haTorah": a genuine law transmitted to Moshe at Sinai would carry the force of d'Oraisa, and the tithing practice in these territories does not have that standing. His reading is "ella ke'ilu hi halachah," rather, the ruling is as though it were "leMoshe miSinai," of such antiquity that one may speak of it in Sinaitic terms. The point is that the Sages assembled on that day had innovated nothing at all: their own analysis and their own vote had brought them to the very conclusion that had been handed down through the generations before them, and that is what brought Rabbi Eliezer to tears. The Bartenura then adds a caveat: "Mihu, baTosefta mashma," the Tosefta seems to indicate otherwise, "dehalachah leMoshe miSinai mammash," an actual Sinaitic halachah, "ka'amar," is precisely what was meant.
A long mishnah, then, but one with a satisfying shape: a dispute, a debate over who must prove his case, competing precedents, a sharp warning about tithes and rainfall, a careful sorting of which precedent truly fits, a vote, and finally the discovery that the vote had merely rediscovered a tradition as old as Sinai itself.