Mishneh Torah, Second Tithes and Fourth Year's Fruit 5-7

Sugya Map

• Issue: The legal mechanics and moral engineering of Chomesh (the 20% surcharge) when redeeming Ma’aser Sheni.
• Nafka Mina: Can one use "guile" (ormah) to circumvent the Chomesh? What is the status of produce that cannot be redeemed?
• Primary Sources: Leviticus 27:31, Bava Kama 69b, Mishneh Torah, Hilchot Ma'aser Sheni 5:1-12.

Text Snapshot

"He must add a fifth... although the produce of the second tithe belongs to God, as it were, since the person partakes of it, the Torah considers it as his, with regard to the obligation to add a fifth" Mishneh Torah, Second Tithes 5:1. Nuance: Rambam identifies the Chomesh as a tax on the owner's benefit. Even if God is the legal "owner," the human user’s consumption triggers the fiscal penalty.

Readings

• Ohr Sameach (5:1): Challenges why Rambam forbids giving Ma'aser Sheni as a gift unless it is still Tevel. He explains that once Ma'aser is separated, it is definitively "God's property" and cannot be gifted.
• Steinsaltz (5:1:2): Clarifies the math: the Chomesh is a "fifth from the outside" (chomesh milbar). If the principal is 4, you add 1 to make the total 5 (effectively 25% of the principal).

Friction

Kushya: If Ma'aser Sheni is truly "God’s property," why does the Torah impose a financial penalty (Chomesh) on the human? Terutz: The penalty functions as a kinyan (acquisition) mechanism. By adding the 20%, the human "buys" the sanctity from the food into the coin. It isn't a fine; it is the price of transfer. The "guile" permitted by Rambam Mishneh Torah, Second Tithes 5:8 is therefore not a loophole, but a legal maneuver to ensure the owner is not the one executing the transfer, thereby exempting them from the surcharge.

Intertext

• Compare with Leviticus 27:13 regarding the redemption of consecrated items (Hekdesh). The Chomesh is the hallmark of human-to-human/human-to-God fiscal interaction in holiness.
• See SA Yoreh Deah 331 for the ongoing applicability of Ma'aser laws in the absence of the Temple.

Psak/Practice

The Rambam’s meta-psak is clear: Ma'aser Sheni is a rigid, holy asset. We use legal formalisms (like guile or transferring holiness to coins) to manage the burden, but we never treat the asset as common. If you cannot redeem, you must bury it or let it rot Mishneh Torah, Second Tithes 5:17.

Takeaway

The Chomesh is the "cost of consumption." Sanctity in Judaism is not free; it requires an active, tangible increase in value to move holiness from the realm of the physical (produce) to the transactional (coins).