Terumos, Chapter 3, Mishnah 3. Before us is a fascinating Mishnah that sheds light not only on the laws of Terumah but on the very nature of partnership.
In the opening Mishnah of the tractate we learned that there are five whose Terumah is not Terumah, and even if they separated it, their separation does not take effect. Among them we counted the "cheresh, shoteh v'katan" - the deaf-mute, the mentally incompetent and the minor, and also "hatorem es she'eino shelo" - one who separates Terumah from property that is not his own. The source of all this lies in the verses at the beginning of Parashas Terumah, where it says "me'itam" - from them, meaning from themselves. From here we learn that a person separates only from what belongs to him, and he cannot separate from his fellow's property.
This fits perfectly with the reason we offered for the mitzvah: the giving is an opportunity to root in a person the trait of generosity and a sense of gratitude for all the blessings the Holy One, Blessed is He, has showered upon him. Out of this awakening a person wishes to give something back to his Creator, and since he cannot give it directly, the Torah gave him the opportunity to give to the agent of the Holy One, Blessed is He - the kohen. Accordingly it is clear that the entire point of the mitzvah is giving from your own property, and it is unthinkable to allow you to give from someone else's, since that would nullify your own need and opportunity to give from what is yours. It is worth emphasizing that the halachah stands on its own strength from the explicit verse in the Torah, and this reason is merely the rationale behind it.
The Question of Partners:
Our Mishnah addresses a fascinating question: what is the law regarding someone who holds property in partnership with another? Reuven and Shimon are partners in a vineyard, and they have a hundred barrels of wine that they produced. Economically and legally, fifty barrels belong to Reuven and fifty to Shimon, but the ownership is joint. If one of them separates one out of fifty - two barrels of wine - one for his own portion and one for his partner's portion, does his separation take effect?
Three Levels of Authorization:
Explicit authorization: The Yerushalmi explains, as the first Mishnah of the tractate already qualified, that if Reuven gave Shimon explicit verbal permission to act as his agent, Shimon can certainly separate Terumah and maasros on his behalf, and the separation takes effect.
Implied authorization: Even when nothing was said explicitly, but it is obvious to everyone that Shimon is entitled to separate, the separation is effective. According to the Rash, this refers to a case where Shimon is God-fearing and expert in the laws of Terumah, and Reuven views him, as it were, as the "rabbi" of the partnership, who knows his craft. According to the Rambam in his Commentary on the Mishnah, this refers to a Shimon who serves as the managing partner, whom Reuven relies on in matters of running the partnership. And just as Reuven does not demand a double signature on the checks, as it were, so too he leaves it to him to separate the Terumah as well.
Clear absence of authorization: In the opposite situation, where Reuven is the "rabbi" of the relationship or the managing partner, while Shimon is not expert in the laws of separation or is not trusted by him in matters of management, certainly no implied authorization was given here, and all agree that if Shimon separated, his separation does not take effect.
The Case of the Mishnah - The Uncertainty:
The Mishnah deals with a murky situation: Reuven and Shimon are partners, they never discussed between themselves who would separate, and even by implication the matter is not clear. According to the Rash, Reuven is not certain that Shimon knows his craft in matters of separation; according to the Rambam, Reuven is not necessarily comfortable with Shimon handling everything in matters of management. Since no explicit authorization was given, and there is also no clear resolution as to whether Reuven would have authorized him by implication, when Shimon went ahead and separated, is his separation considered Terumah or not? On this the Tannaim disagree.
The language of the Mishnah: "HaShutafin shetarmu zeh achar zeh" - partners who separated Terumah one after the other. First Shimon separated on behalf of both of them, and afterward, without knowing that Terumah had already been separated, Reuven separated as well.
Let us picture the scene: they have a hundred barrels of wine, and they need to separate two percent, one out of fifty. Shimon gets up in the morning and says, "Let's start with this," and takes two barrels for Terumah - one corresponding to his fifty barrels and one corresponding to Reuven's fifty barrels. In terms of the number and the manner of taking, everything is in order. Afterward Reuven wakes up, and without knowing that Terumah had already been separated, he too takes two barrels and says: one corresponding to my fifty and one corresponding to Shimon's fifty.
The question is this: if Shimon's separation was fully effective, it turns out that Reuven tried to separate Terumah from produce from which Terumah had already been separated, and nothing happened - his separation is void. But if Shimon's separation was not effective for Reuven's portion, because he was not authorized to separate on his behalf, it turns out that Shimon's portion was properly rectified, while Reuven's portion is still tevel and requires separation.
The view of Rabbi Akiva:
"Rabbi Akiva omer: terumas sheneihem terumah" - both separations take effect, but each one applies only to the portion belonging to the one who separated it. Since there was no authorization here, neither explicit nor implied, Shimon's separation is valid only for his own portion, and Reuven's separation only for his own portion.
Of the two barrels Shimon separated, one becomes Terumah and the other remains tevel, since he had no power to turn the barrel he separated against Reuven's portion into Terumah. When Reuven then comes and takes two more barrels from the ninety eight that remain, the barrel he separates against Shimon's portion is not needed and does not take effect, since Shimon's portion has already been rectified; but the barrel he separates against his own portion does take effect.
The arithmetic of the division: Reuven's portion consists of fifty barrels - forty nine of the ninety eight in the storeroom, plus one more that is set aside together with Shimon's two barrels. Once Reuven took one barrel of his own, it became Terumah for the remaining forty eight barrels and for that barrel which Shimon had set aside.
The result: of the hundred, ninety six barrels remain in the storeroom, two in the place where Shimon set his down and two in the place where Reuven set his down. In each pair one is Terumah and one is chullin, but it is not known which is which. Since both of them separated properly from their own fifty, everything is in order, except that they will have to hand over all four barrels to a kohen and inform him that two of them are Terumah that belongs to him and two are chullin. The two barrels of Terumah are given to the kohen free of charge, since they are his property, while the other two the partnership may sell to him, since they are not his financial property; but hand all of them over to him they must, since there is no way for a non kohen to eat from any one of these four barrels, as each of them might be the Terumah. And from the chullin among them, maaser and all the other separations still have to be taken.
The view of the Chachamim:
The Chachamim disagree and hold: when there is no clear determination whether Reuven authorized Shimon, since they are partners and there is no good reason why he would not authorize him, we may safely assume that Reuven gave him implied permission to separate. If so, "terumas harishon terumah" - the first two barrels that Shimon separated are the Terumah, while what Reuven did is nothing at all, and his two barrels may be returned to the remaining ninety six.
The view of Rabbi Yosei:
Rabbi Yosei comes to qualify the words of the Chachamim. First we must introduce the measures of Terumah:
By Torah law: even a single drop of wine is enough to exempt all one hundred barrels from any further separation.
By rabbinic law: an average person gives one fiftieth, a stingy person one sixtieth, and a generous person one fortieth of the total produce.
Therefore, when we say that Reuven implicitly permitted Shimon to separate, that is only on the assumption that he would separate exactly one fiftieth, as an average person does. But if he separated less than that and gave one sixtieth, who says that this is what Reuven intended, and his separation does not work for him.
And this is the language of the Mishnah: "im taram harishon kashiur - ein terumas hasheni terumah" - if Shimon separated properly, one fiftieth, his first separation is valid, and whatever Reuven takes afterward does not take effect, and he may return it since it is not needed. "Ve'im lo taram harishon kashiur - terumas hasheni terumah" - if Shimon did not separate precisely one fiftieth, his separation did not work for Reuven, since he was not authorized to take less than the measure the Chachamim established; and therefore when Reuven comes and separates a second time, at least for his own share of the wine his separation is valid.
The halachah follows Rabbi Yose, that is, the view of the Sages as qualified by Rabbi Yose.
In summary: Our mishnah deals with partners who separated Terumah one after the other without explicit authorization. We learned the three levels of authorization - explicit, implied, and clear absence of authorization - and the dispute among the Tannaim in the ambiguous case: according to Rabbi Akiva, "terumas sheneihem terumah" - the Terumah of both of them is valid Terumah, and each one rectifies only his own portion; according to the Sages, the Terumah of the first is valid, since implied authorization exists; and Rabbi Yose qualifies that it depends on the measure - if the first separated one fiftieth, his separation stands; if he did not separate the proper measure, the Terumah of the second is valid. And so the halachah was decided.