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Mishneh Torah, Second Tithes and Fourth Year's Fruit 11
Sugya Map
The sugya of Viduy Ma’aser (the Declaration of Tithes) and Biur Ma’aser (the Removal of Tithes) presents a classic structural tension in agricultural halacha: is the act of purging one's house of sacred produce an independent obligation, or is it merely a preparatory step (hechsher mitzvah) to enable the verbal declaration?
- The Core Issue: The structural relationship between Biur (destruction/dissemination) and Viduy (the verbal confession).
- The Nafka Minot (Practical Ramifications):
- Exemption from Viduy: If a person has already properly distributed or destroyed all their tithes prior to the designated time of Biur, are they still obligated to recite the Viduy?
- Viduy Without Biur: If one is unable to perform Biur (e.g., their produce was accidentally destroyed or stolen), does the obligation of Viduy persist?
- The Mechanism of Transfer: When employing legal bypasses like Kinyan Agav (acquisition of movable property via land) to transfer tithes to a Kohen or Levite at a distance, does this constitute a fulfillment of Biur or merely an avoidance of destruction?
- Primary Sources: Deuteronomy 26:12-15, Mishnah Ma'aser Sheni 5:6-15, Bava Metzia 11b, Yerushalmi Ma'aser Sheni 5:4.
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Text Snapshot
In Chapter 11 of Hilchot Ma’aser Sheni V’Neta Reva’i, the Rambam codifies the mechanics of this dual obligation:
"מִצְוַת עֲשֵׂה לְהִתְוַדּוֹת לִפְנֵי ה' אַחַר כָּל הַמַּתָּנוֹת... וְזֶהוּ הַנִּקְרָא וִדּוּי מַעֲשֵׂר."[^1]
The Rambam’s choice of the term להתודות (to confess) rather than להודות (to thank or acknowledge) demands close examination. As Rabbi Adin Steinsaltz notes in his commentary, להתודות means "to admit to the truth and recount one's actions."[^2] Historically, the agricultural separations are a consequence of the nation's spiritual descent; had the sin of the Golden Calf not occurred, these duties would have remained with the firstborn.^3 Thus, the declaration is framed not as a triumphant boast of obedience, but as a sober confession of carrying out a system born of historical correction.
Later in the chapter, the Rambam addresses the mechanics of tithing at a distance:
"כְּשֶׁיִּהְיוּ פֵּרוֹתָיו שֶׁל אָדָם רְחוֹקִים מִמֶּנּוּ... הֲרֵי זֶה קוֹרֵא שֵׁם לַמַּתָּנוֹת וּמְזַכֶּה בָּהֶן לְבַעְלֵיהֶן עַל גַּב קַרְקַע... אֲבָל אֵינוֹ יָכוֹל לְהַקְנוֹת לָהֶם הַמַּעֲשֵׂר בַּחֲלִיפִין, מִפְּנֵי שֶׁנִּרְאֶה כִּמְכִירָה, וְהַתּוֹרָה אָמְרָה נְתִינָה."[^4]
This linguistic distinction between Netinah (giving) and Mekach U'Mimchar (buying and selling) serves as the conceptual anchor for the entire mechanics of tithing transfers.
Readings
1. The Ra'avad vs. The Rambam: The Locus of Viduy
The first major conceptual divide concerns where and when Viduy can be performed. The Rambam rules:
"בֵּין בִּפְנֵי הַבַּיִת בֵּין שֶׁלֹּא בִּפְנֵי הַבַּיִת, חַיָּב לְבַעֵר וּלְהִתְוַדּוֹת."[^5]
The Ra'avad immediately demurs:
"אָמַר אַבְרָהָם: אֵין וִדּוּי אֶלָּא בִּפְנֵי הַבַּיִת... דִּכְתִיב 'לִפְנֵי ה' אֱלֹקֶיךָ'."[^6]
This dispute represents a fundamental debate regarding the nature of Viduy:
Is Viduy Ma'aser tied to the Temple?
│
┌──────────────────┴──────────────────┐
▼ ▼
The Ra'avad The Rambam
[Chovat HaGavra] [Chovat HaMitzvah]
Must be performed physically Bound to the existence of
in the Beit HaMikdash. agricultural obligations.
(Temple is essential) (Temple is preferred,
not indispensable)
- The Ra'avad's View (Chovat HaGavra): Viduy is a personal obligation (Chovat HaGavra) of standing "before Hashem," which can only be achieved within the sacred precincts of the Beit HaMikdash. Just as Bikkurim (First Fruits) require the Temple, so too does the verbal tithing declaration. Without the Temple, the halachic framework for "standing before Hashem" is absent, rendering the mitzvah impossible to fulfill.
- The Rambam's View (Chovat HaMitzvah): Viduy is an objective consequence of agricultural completion (Chovat HaMitzvah). The Torah's phrase "before Hashem" indicates the ideal location (l'chatchilah), but does not serve as an absolute requirement (me'akev). For the Rambam, as long as the laws of tithing apply—even in the post-destruction era—the obligation to declare the completion of these tithes remains intact. If one can perform Viduy outside the Temple b'di'avad (post facto), then when the Temple is absent, that secondary option becomes the primary path.^7
2. The Minchat Chinuch: Is Biur a Standalone Mitzvah?
The Minchat Chinuch raises a structural question regarding the Rambam’s list of the 613 mitzvot.^8 The Rambam lists Viduy Ma’aser as Positive Commandment 131, but he does not dedicate a separate mitzvah to Biur Ma’aser (the actual removal or destruction of the tithes). Why is the physical act of purging the home not counted as its own independent commandment?
How is Biur categorized?
│
┌───────────────────┴───────────────────┐
▼ ▼
Hechsher Mitzvah Kiyum Atzmi
(Preparatory Requirement) (Independent Mitzvah)
Purging the house is Biur is a distinct
merely a prerequisite objective of removing
to allow for Viduy. unsanctioned holy
produce from the home.
To resolve this, the Minchat Chinuch analyzes two possible models:
- The Hechsher Mitzvah Model: Biur is merely a preparatory requirement. The Torah does not command the act of destruction for its own sake; rather, it commands the declaration of compliance. To say "I have removed the holy things from my house" without actually doing so would be a lie. Thus, the physical removal is simply a prerequisite to ensure the truth of the verbal declaration.
- The Kiyum Atzmi Model: Biur is a distinct objective. The presence of outdated tithes in one's home represents a flaw in the agricultural order. The act of Biur repairs this by returning the tithes to their proper home or removing them from the world.
The Minchat Chinuch suggests that according to the Rambam, Biur is indeed a preparatory step for Viduy. If a person has no tithes in their possession—for instance, if they owned no land or had already distributed everything immediately upon harvesting—they have no obligation of Biur. Yet, they would still recite Viduy to declare that they have no outstanding obligations, demonstrating that the verbal declaration is the ultimate goal of the mitzvah.
3. The Ohr Sameach: The Mechanics of Kinyan Agav
In Halacha 11, the Rambam codifies the famous episode of Rabban Gamliel and the Sages on the ship.^9 Being far from his estate as the time for Biur approached, Rabban Gamliel leased land to Rabbi Joshua (a Levite) and Rabbi Akiva (a collector for the poor) and transferred the ownership of the tithes to them via Kinyan Agav (transferring movable property along with real estate).
The Ohr Sameach analyzes the dynamics of this transaction.^10 He cites the Yerushalmi:
"הדא אמרה שהיה צריך ר"ג לזכות [את רבי] יהושע בפירות המחוברין לקרקע..."[^11]
The Ohr Sameach asks: why did Rabban Gamliel need to utilize Kinyan Agav? Why could he not simply rely on Kinyan Chatzer (acquisition via one's courtyard) by renting them the physical space where the produce was stored?
The answer lies in the distinction between a standard commercial transaction and the distribution of Matnot Kehunah (priestly gifts). In a commercial sale, any valid acquisition mechanism (kinyan) suffices to transfer ownership. However, regarding tithes, the Torah demands a genuine act of giving:
"וְגַם נְתַתִּיו לַלֵּוִי..."Deuteronomy 26:13
An acquisition through Chalipin (barter/exchange) is legally categorized as a transaction of "buying and selling" (Mekach U'Mimchar), which is incompatible with the concept of a pure gift (Netinah). By contrast, Kinyan Agav—where the movable tithes are acquired as an extension of land—preserves the character of a direct gift. The payment made, if any, is for the land itself, while the tithes are transferred freely alongside it, satisfying the Torah's requirement of Netinah Alimta (a robust, unimpeachable giving).[^12]
Friction
The Clash: Order of Separation vs. Validity of Viduy
The most challenging conflict within the Rambam's rulings emerges from the requirement of proper order in separating agricultural gifts.
In Halacha 13, the Rambam writes:
"הַמַּתָּנוֹת צָרִיךְ לְהַפְרִישָׁן כַּסֵּדֶר הָרָאוּי... לְפִיכָךְ אִם הִקְדִּים מַעֲשֵׂר שֵׁנִי לְרִאשׁוֹן, אֵינוֹ יָכוֹל לְהִתְוַדּוֹת."[^13]
This states that if a farmer separates the Second Tithe (Ma'aser Sheni) before the First Tithe (Ma'aser Rishon), they cannot recite the Viduy.
However, in Hilchot Terumot, the Rambam rules that if one alters the proper order of separations, the act is still legally binding post facto:
"הַמַּקְדִּים לֵוִי לְכֹהֵן... אוֹ שֶׁהִקְדִּים שֵׁנִי לְרִאשׁוֹן... אַף עַל פִּי שֶׁעָבַר עַל עֲשֵׂה... מַה שֶּׁעָשָׂה עָשׂוּי."[^14]
This creates a conceptual contradiction:
Separating Tithes Out of Order
│
┌───────────────────┴───────────────────┐
▼ ▼
Hilchot Terumot 3:23 Hilchot Ma'aser Sheni 11:13
The separation is valid The farmer is barred
post facto (b'di'avad). from reciting Viduy.
If the out-of-order separation is halachically valid and the produce is now permitted for consumption, why does it prevent the farmer from reciting the Viduy? If the tithes have been successfully separated and distributed, why can the farmer not declare that they have completed the mitzvah?
Resolution 1: The Brisker Approach (Cheftza vs. Gavra)
To resolve this difficulty, Rabbi Chaim Soloveitchik introduces a fundamental distinction between the status of the object (Cheftza) and the performance of the individual (Gavra).[^15]
The Brisker Resolution
│
┌───────────────────┴───────────────────┐
▼ ▼
Status of the Object Action of the Person
(Cheftza) (Gavra)
The grain is legally tithed; The mitzvah was performed
the food is permitted. flawfully, violating the
Torah's preferred order.
- The Cheftza Level (The Object): The physical separation of the tithes is valid. The grain is no longer untithed (Tevel), and the designated portions are holy.
- The Gavra Level (The Person): The farmer’s performance of the mitzvah was flawed. They violated the positive command to separate the tithes in their proper order.
The Viduy is not merely a technical report confirming that the grain has been tithed. Rather, it is a personal testimony to the perfection of one's actions:
"עָשִׂיתִי כְּכֹל אֲשֶׁר צִוִּיתָנִי..."Deuteronomy 26:14
A person who separated the tithes out of order cannot truthfully make this statement. Although their grain is permitted, their actions were flawed. Therefore, the Rambam can consistently rule that while the separation is valid b'di'avad (on the level of the Cheftza), the farmer is barred from reciting the Viduy (on the level of the Gavra).
Resolution 2: The Rogatchover Approach (The Nature of Completion)
The Rogatchover Gaon, Rabbi Joseph Rosen, offers an alternative resolution based on the definition of Viduy.^16 He argues that Viduy is not merely a retrospective narrative; it is the final halachic step that completes the tithing process.
The Rogatchover Resolution
│
┌───────────────────┴───────────────────┐
▼ ▼
Viduy as Narrative Viduy as Completion
A simple report of past The final step that seals
agricultural actions. the agricultural cycle.
(Requires flawless order)
If the tithing process was carried out with a procedural flaw, the chain of sanctity is broken. Because the cycle was initiated out of order, it cannot receive its final seal of completion. The Viduy requires a seamless progression of agricultural sanctification. If the order was disrupted, the cycle remains incomplete, preventing the recitation of the Viduy.
Intertext
1. Bava Metzia 11b: The Shipboard Transaction
The Rambam’s ruling in Halacha 11 regarding Rabban Gamliel’s shipboard transfer is directly derived from the Gemara in Bava Metzia:
"וכי לא היה להם סודר לקנות ממנו במעשר בחליפין? אמר רב פפא: ...סודר דרך מקח וממכר הוא, מטלטלי אגב מקרקע נתינה אלימתא היא."[^17]
The Gemara asks why Rabban Gamliel and his colleagues did not use a scarf (Sudar) to effect a transfer via Kinyan Chalipin (barter). The Gemara answers that Chalipin is categorized as a commercial exchange, whereas the Torah’s term "giving" (Netinah) requires a more direct form of transfer. Kinyan Agav (acquiring movable items along with land) qualifies as Netinah Alimta (a robust giving) because the transfer of the tithes occurs as a gift alongside the land, rather than as a barter transaction.
This talmudic discussion highlights the unique status of Matnot Kehunah. Unlike standard property, which can be transferred through any legally recognized commercial mechanism, priestly gifts must be transferred in a manner that reflects their character as a gift.
2. Shulchan Aruch, Yoreh Deah 331: Modern Practice
The Shulchan Aruch codifies the laws of tithing in the post-Temple era. While the obligation to separate tithes (Terumot U'Ma'aserot) remains active in the Land of Israel today, the practice of reciting the Viduy has been suspended.
The Radbaz explains the basis for this suspension.^18 The Viduy text includes the statement:
"לֹא אָכַלְתִּי בְאֹנִי מִמֶּנּוּ וְלֹא בִעַרְתִּי מִמֶּנּוּ בְּטָמֵא..."Deuteronomy 26:14
In the absence of the ashes of the Red Heifer, all individuals in the modern era are assumed to have some degree of ritual impurity (Tumat Met). Consequently, we cannot separate or consume the Second Tithe in a state of absolute ritual purity. Because we cannot fulfill these conditions in their ideal state, we cannot truthfully recite the verbal declaration.
Thus, while the physical requirement of Biur (the removal and destruction of tithes) is still practiced before Pesach in the fourth and seventh years of the Shemittah cycle, the verbal Viduy is omitted.
Psak/Practice
In contemporary halachic practice, the laws of Biur Ma’aserot remain highly relevant, particularly in the Land of Israel.
Biur Ma'aserot in the Modern Era
│
┌──────────────────────┴──────────────────────┐
▼ ▼
Physical Biur Verbal Viduy
(Still Obligated) (Not Performed)
All remaining tithes must Omitted due to our state
be distributed or destroyed of ritual impurity and the
before Pesach of the 4th and absence of the Temple.
7th years of the Shemittah cycle.
Every fourth and seventh year of the Shemittah cycle (such as 5782 and 5785), Jewish residents of Israel must perform Biur before the afternoon of the final day of Pesach. This process involves:
- Distribution: Giving any outstanding First Tithe (Ma'aser Rishon) to a Levite and the Poor Person's Tithe (Ma'aser Ani) to those in need.
- Destruction: Destroying any remaining Second Tithe (Ma'aser Sheni) or Neta Reva'i produce, or their redemption coins, by burning them or rendering them unusable.
- Omission of the Blessing: While the physical removal is carried out, the Viduy text is not recited, following the consensus of the Shulchan Aruch and the Radbaz due to our state of ritual impurity.^19
This practice ensures that even in the post-destruction era, the physical discipline of managing sacred agricultural produce is maintained.
Takeaway
Viduy Ma’aser teaches that halachic obedience requires not only correct physical action but also complete personal integrity; the verbal declaration of compliance is only valid when the entire process has been performed in its proper order.
[^1]: Rambam, Mishneh Torah, Hilchot Ma’aser Sheni V’Neta Reva’i 11:1. [^2]: Steinsaltz on Mishneh Torah, Hilchot Ma’aser Sheni V’Neta Reva’i 11:1:1. [^3]: See Rashi on Numbers 3:12. [^4]: Rambam, Mishneh Torah, Hilchot Ma’aser Sheni V’Neta Reva’i 11:11. [^5]: Rambam, Mishneh Torah, Hilchot Ma’aser Sheni V’Neta Reva’i 11:5. [^6]: Ra'avad, ad loc., Hilchot Ma’aser Sheni V’Neta Reva’i 11:5. [^7]: See Kaf Hachaim, Yoreh Deah 331. [^8]: Minchat Chinuch, Mitzvah 607. [^9]: Mishnah Ma'aser Sheni 5:9. [^10]: Ohr Sameach on Hilchot Ma’aser Sheni V’Neta Reva’i 11:11:1. [^11]: Yerushalmi Ma'aser Sheni 5:4. [^12]: See Steinsaltz on Hilchot Ma’aser Sheni V’Neta Reva’i 11:11:4. [^13]: Rambam, Mishneh Torah, Hilchot Ma’aser Sheni V’Neta Reva’i 11:13. [^14]: Rambam, Mishneh Torah, Hilchot Terumot 3:23. [^15]: See Chiddushei Rabbeinu Chaim HaLevi, Hilchot Terumot 3:23. [^16]: Tzofnat Paneach, Hilchot Ma’aser Sheni 11:13. [^17]: Bava Metzia 11b. [^18]: Radbaz on Mishneh Torah, Hilchot Ma’aser Sheni V’Neta Reva’i 11:5. [^19]: Shulchan Aruch, Yoreh Deah 331:115.
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