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Week 167 - Shabbat - 8 February 2003

ARAKHIN: CHAPTER 8: MISHNAH 4

A person may devote of his flock or his herd, of his Canaanite bondmen or bondwomen or of his Field of Possession. But if he devoted them in their entirety, they are not devoted. So R. Eleazar. Said R. Eleazar ben Azaryah: If to the Most High one may not devote all his property, how much more must a person be considerate of his own possessions.

Kehati

The Torah states (Lev. 27:28): "Notwithstanding, any devoted thing that man shall devote to the Lord of all that he has, both of man and beast, and of the field of his possession, shall not be sold or redeemed; every herem (devoted thing) is most holy to the Lord." This verse refers to one who devotes something he owns by declaring it herem, i.e., he said: "Let this thing be herem." There are two kinds of herem: a) herem devoted to the Temple Treasury which, like anything dedicated: for its value, may be redeemed and its equivalent handed over to the Temple Treasury; b) herem given to the priests, to which the above-cited text refers, stating "shall not be sold or redeemed" but must be given to the priest. The Tannaim differ (see mishnah 6 below) as to who is the recipient in the case of an unspecified herem. Some assign it to the Temple, others to the priest. The latter is the halakhah. Our mishnah, dealing with a herem given to the priest, teaches that one may not devote his entire property.

A person may devote part of his flock or his herd, some of his Canaanite bondmen or bondwomen - being his property he may devote them - or part of his Field of Possession, but he may not devote his entire flock or herd, nor all his bondmen or bondwomen or all his fields.

But if he devoted them in their entirety - i.e., the whole of any of the above without retaining any of the devoted item, the herem does not take effect and hence they are not devoted - some regard flock and herd as one kind, hence if he devoted all his flock but kept for himself the herd, or vice versa, the herem is valid; Canaanite bondmen and bondwomen are likewise accounted one kind (Rosh). At any rate, if he devoted all of his animals, bondmen or bondwomen, the herem is not valid.

So R. Eleazar since, as explained in a baraita cited in the Gemara, it is stated (Lev. 27:28) "Notwithstanding, any devoted thing that man shall devote to the Lord of all that he has (i.e., movable possessions - Rashi), both of man (i.e., Canaanite bondmen and bondwomen) and beast, and of the field of his possession." According to R. Eleazar "of all that he has" implies that he may not give all that he has; "of man" but not all of his men, "and of, but not all, the field of his possession"; I might have thought that he may not devote them in the first place, but if he did the herem is valid (after the fact)? Therefore it is stated "Notwithstanding (akh), any devoted thing," akh invariably signifying a limiting qualification, i.e., it is unconditional herem.

However, the halakhah does not follow R. Eleazar but the Sages who rule (see Tosefta Arakhin) that though at the outset one may not devote the whole, bedi'avad (after the fact) the herem is valid (see Rambam Hil. Arakhin 6:2).

Said R. Eleazar ben Azaryah: If to the Most High one may not devote all his property - even though the mishnah refers to a herem given to the priest (see introduction to our mishnah), which once in his possession has the status of hullin, it is nevertheless regarded as "to the Most High," since while it is in the donor's possession it is hekdesh in every respect, as stated (Lev. 27:28) "all herem is most holy to the Lord (Tosafot Arakhin 28a)"; hence R. Eleazar b. Azaryah infers through a kal va homer that If to the Most High one may not devote all his property, how much more must a person be considerate of his own possessions and not give them all away. It is similarly stated: R. Ela said: In Usha they ordained that one who would distribute (his possessions to the poor) must not go beyond one fifth (of his own) (Gemara; see Rambam Hil. Arakhin Vaharamim 8:13).

ARAKHIN: CHAPTER 8: MISHNAH 5

If one devotes his son or his daughter, his Hebrew manservant or maidservant or the field which he had bought, their herem is not valid because one cannot devote what is not his. Priests and Levites cannot devote. So R. Yehudah. R. Shimon says, Priests cannot devote since all herem falls to them, Levites can devote since the herem does not fall to them. Rabbi says, R. Yehudah's statement is acceptable in cases of immovable property, since it is stated (Lev. 25:34) "for it is their perpetual possession," and R. Shimon's statement in cases of movable property since the herem does not fall to them.

Kehati

Continuing to deal with the laws of devoted objects which fall to the priests, our mishnah teaches that one cannot devote what does not belong to him. This mishnah also rules on whether priests and Levites can devote anything as a herem.

If one devotes his son or his daughter - i.e., he declared: "let this my son" or "this my daughter" be herem (dedicated to the priests), or declared his Hebrew manservant or maidservant to be herem, or the field which he had bought and which returns to its original owner in the yovel year;

Their herem is not valid, and hence is not given to the priests because one cannot devote what is not his and none of the above are his property. A baraita cited in the Gemara (Arakh. 28a) infers this from the text (Lev. 27:28) "of all that he has, both of man and beast"; this implies that just as one may sell a beast (and therefore he may declare it herem), so may he declare herem whatever he may sell; this excludes his son, his daughter, Hebrew manservant or maidservant, which he may not sell. Although a father can sell his daughter who is a minor, he cannot do so after she becomes a na'arah (twelve years and one day old); furthermore, a girl sold by her father when a minor, leaves her master on producing evidence of na'arut (puberty); also excluded is a field acquired by purchase, which he can sell only up to the yovel year, when it reverts to its original owner, as explained above.

Priests and Levites cannot devote their property. So R. Yehudah whose reasoning is explained below.

R. Shimon says, Priests cannot devote since all herem falls to them - any herem a priest devotes is acquired by him directly, hence a priest's herem is pointless. Some hold that this reason applies only in the case of devoted movable property which may be given to the priest of one's choosing (so R. Hiya bar Avin in the Gemara; however, according to Rambam, this is not the halakhah); accordingly in the case of immovable possessions which the devoter must give to a priest of the division that is on duty, a priest who does not belong to that division, and to whom the herem would therefore not fall, could devote; however, the reason a priest cannot devote immovable property is inferred from (Lev. 25:34) "for that is their perpetual possession" as expounded in the mishnah below (Tosefot R. Akiva Eiger); however,

Levites can devote since the herem does not fall to them but to the priests. Rabbi says, R. Yehudah's statement is acceptable - according to the Gemara - acceptable to R. Shimon, who agrees with R. Yehudah in cases of immovable property which the Levites also may not devote, since it is stated(Lev. 25:34) concerning the Levitic cities and their surrounding open spaces "for it is their perpetual possession," which would not apply if they devoted land which would then pass to the priests, and R. Shimon's statement who, differing from R. Yehudah in our mishnah, says that Levites can devote, rules thus only in cases of movable property since the herem does not fall to them - to the Levites, and hence they can devote movable goods and give them to the priests. The Gemara explains: R. Yehudah compares movable to immovable property; concerning the herem it is written (Lev. 27:28) "of all that he has, both of man, and beast, and of the field of his possession" - just as the Levites may not devote a Field of Possession, as it is stated "for it is their perpetual possession," so also may the Levites not devote movable property.

However, R. Shimon does not apply this comparison (hekesh). The halakhah follows R. Yehudah (Rambam Hil. Arakhin 6:7). However, in his Mishnah Commentary Rambam does not accept R. Yehudah's ruling as halakhah; nor does Bartenura, according to whom the halakhah follows R. Shimon; see Tosefot Yom Tov).

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