Lesson 26: Ki Tisa

From the book Mida Tova: Articles on the Principles of Halakhic Thinking by Rabbi Michael Avraham. Translated from Hebrew using gpt-5.4 (reasoning_effort=high, batch API).

---

With God’s help

Concepts

• Transfer to the collective
• Incorporation and conveyance
• Transfers of ownership from an individual to a collective body of which he himself is a member

Summary

In this week’s article we discuss the mitzvah (commandment) of the half-shekel. We begin by showing that a central foundation of this commandment is incorporation into the collective. Sefer HaHinukh writes that when a person neglects this commandment, the main problem with his act is that he has separated himself from the collective and is no longer included within it, especially with respect to atonement.

In the following sections we address several difficulties concerning the need to transfer the contribution to the collective. If a person gives money to the treasury chamber but does not transfer ownership of it to the collective, it follows that communal offerings are being brought from private funds. The Tannaim and later legal authorities disagree in various contexts about whether there is reason to fear that a transfer of money or other items to the collective is not complete. We present two conceptions of this concern: either it stems from lack of knowledge, because people do not know that the items must be transferred to the collective; or it stems from a conscious desire that the communal offerings be brought from the donors’ own property.

From Maimonides’ words it emerges that even a minor can transfer his money to the collective within the framework of the half-shekel, and so too can women and slaves, and according to Ben Bukhri, priests as well, even though they are exempt from the commandment. The question is why there is no concern that the transfer is incomplete, especially in the case of a minor, who in general lacks legal capacity to convey ownership.

Later authorities also ask why there is any concern that a person may not fully transfer his money to the collective. Even if he did not intend to convey ownership, this is merely an unexpressed inner intention, and unexpressed intentions do not alter the law. What defines a legal act of conveyance is what one says and does, not what one thinks.

To explain these difficulties, and others as well, we propose a new mechanism for transfer to the collective: incorporation into the collective. Our claim is that money given to the treasury chamber is not conveyed to it through an ordinary monetary transfer. Rather, the money is transferred through a mechanism in which the donor incorporates himself into the collective by giving the half-shekel to the chamber, and the conveyance to the collective and the consecration of the money then occur automatically. According to our proposal, such a mechanism is valid even for minors, and certainly for adults who are not obligated in the commandment. There is therefore no concern that the transfer is incomplete, because it is the result of incorporation brought about by this commandment, not of an ordinary act of conveyance.

At the end of our discussion we suggest the possibility that there are two mechanisms for transfer to the collective: incorporation and conveyance. According to this proposal, only in the mitzvah of the half-shekel is the transfer effected through incorporation. In all other contexts, the transfer is effected through conveyance. This distinction resolves a number of contradictions in the talmudic discussions and in the legal authorities, and it yields several legal implications.

The rules and principles that emerge from the article

• On full transfer to the collective
• A further look at the relation between the individual and the whole

A. The mitzvah of the Half-Shekel

Introduction

Our Torah portion opens with the commandment of the half-shekel (Exodus 30:11-16):

And the Lord spoke to Moses, saying: When you take a census of the Israelites according to their number, each man shall give the Lord an atonement for his life when they are counted, so that there will be no plague among them when they are counted. This they shall give, everyone who passes among those counted: half a shekel according to the sanctuary shekel, twenty gerahs to the shekel; half a shekel as an offering to the Lord. Everyone who passes among those counted, from twenty years old and upward, shall give the Lord’s offering. The rich shall not give more, and the poor shall not give less than half a shekel, to give the Lord’s offering, to make atonement for your lives. And you shall take the atonement money from the Israelites and assign it to the service of the Tent of Meeting, and it shall be for the Israelites as a memorial before the Lord, to make atonement for your lives.

The Torah commands that a half-shekel be collected from every Israelite, “everyone who passes among those counted,” without distinctions based on economic standing, “the rich shall not give more, and the poor shall not give less.” The half-shekel contribution is used to finance the Temple service, “and assign it to the service of the Tent of Meeting”: communal offerings, wood for the altar fire, and the like.

The mitzvah of the half-shekel is counted by the classic enumerators of the commandments as a commandment for all generations. This is Maimonides’ formulation in Sefer HaMitzvot, Positive Commandment 171:

The 171st commandment is that we were commanded to give the half-shekel every year. This is His statement, exalted be He: “Then each man shall give an atonement for his life to the Lord.” And He said: “This they shall give, everyone who passes among those counted.” It is clear that women are not obligated in this commandment, for the verse says, “everyone who passes among those counted.” The laws of this commandment have already been explained in the tractate devoted to it, namely Tractate Shekalim, and there, at the end of chapter 8, it is explained that this commandment applies only when the Temple stands.

The exemption of women is derived from the verse, “everyone who passes among those counted,” but some based the exemption on the fact that this is a time-bound positive commandment.¹

Two dimensions in the mitzvah of the Half-Shekel

In Sefer HaHinukh, commandment 105, there are several interesting remarks about this commandment, from which it seems that it contains two dimensions:

Among the roots of the commandment is that the Holy One, blessed be He, desired the good of all Israel and to grant them merit, so that the hand of all should be equal in the matter of the offerings brought before Him throughout the year on a regular basis, and in these other matters mentioned; and so that all, poor and rich alike, should be equal before Him in one commandment, to raise the remembrance of them all through the commandment in which they are all included together for good before Him. And this rising of remembrance is stated from the side of the recipient, in the manner we explained above [commandment 97].

Here Sefer HaHinukh completely ignores the technical aspect, namely that this contribution is intended to make the Temple service possible. Without funding, the communal service cannot function. From his words it emerges that the primary purpose of this commandment is to incorporate all Israel into a single unit. This is achieved through everyone’s equal participation in the communal sacrificial service in the Temple, so that the remembrance of all rises together before the Holy One. There is therefore a dimension of the individual’s incorporation into the collective, and also a dimension of operating the Temple service in order to atone for all.

The fact that atonement for the collective becomes possible by virtue of the individual’s involvement in the collective is also explained by Maimonides in Laws of Repentance 3:11, and see also there 3:6:

One who separates himself from the ways of the community, even though he has not committed sins, but has separated himself from the congregation of Israel and does not perform commandments together with them, does not enter into their suffering, and does not fast with their fasts, but goes on his own path like one of the nations of the earth, as though he were not one of them, has no share in the World to Come.

Maimonides writes that one of the things that prevents atonement on Yom Kippur is separation from the ways of the community. Rabbi Joseph Dov Soloveitchik, in his book Al HaTeshuvah, explains that the atonement of Yom Kippur is a collective atonement, and therefore one who is not included in the collective does not merit atonement within that framework. This is exactly what we see in the mitzvah of the half-shekel.

It seems that Sefer HaHinukh is not offering here an explanation of the commandment to give as such, but only of the special character of this particular act of giving, namely that everyone gives equally.² The commandment to give is primarily for the sake of funding the Temple service; the equal division is meant to involve every individual equally in the atonement of the collective.

The collective dimension of this commandment is also expressed in another passage in Sefer HaHinukh:

Among the laws of the commandment is what our sages of blessed memory said [Mishnah, Shekalim 1:1]: that on the first of Adar they make an announcement concerning the shekalim; and that even the poorest of the poor is obligated in it, and if he has no money he borrows from others or sells the garment off his back and gives, as it says, “and the poor shall not give less.” It is not given in several payments, but all at once. Its weight is eighty barley grains, for the full shekel in the days of Moses weighed one hundred and sixty barley grains. All are obligated to give it: priests, Levites, Israelites, converts, and freed slaves; but not women, slaves, or minors. And if they give, we accept it from them, but not from gentiles, for they have no share or inheritance among us.

In other words, this commandment is meant to bind all individuals into the collective of Israel. The Torah is unwilling that any Israelite be absent from this commandment, including the poorest of the poor; at the same time, it does not allow other individuals, those who do not belong to the Jewish collective, to participate in it.

This is also explained at the end of Sefer HaHinukh’s discussion there:

One who transgresses this and does not give has neglected a positive commandment, and his punishment is great, for he has separated himself from the collective and is not included in their atonement.

The main problem Sefer HaHinukh sees in one who did not give the half-shekel is that he separates himself from the collective, and therefore is no longer included in its atonement. It is somewhat surprising that Sefer HaHinukh does not mention as a problem the fact that by neglecting this commandment one may impair the Temple service itself. The problem he describes concerns the individual, who is no longer included in Israel with respect to atonement, and not the damage done to the functioning of the Temple service as a result of his wrongdoing. Perhaps he is speaking only about a single individual who did not give his portion; that would not affect the ongoing operation of the service, but only that particular individual’s incorporation into the collective.

The rising of remembrance from the side of the recipient

In the roots of the commandment cited above, Sefer HaHinukh emphasizes that the Holy One wished to grant all of us merit through this commandment and include all of us in atonement, and he concludes with an obscure sentence:

And this rising of remembrance is stated from the side of the recipient, in the manner we explained above [commandment 97].

What does this sentence mean? Sefer HaHinukh himself refers us to commandment 97, which deals with arranging the showbread and the frankincense. There he explains at length that all the Temple commandments, such as the table, the menorah, the showbread, and the offerings, are all for the sake of the recipients, that is, for us, and not for the sake of the Holy One. The Holy One does not need our worship, our bread, or our offerings.

His explanation there is that when we engage with a certain object in fulfillment of God’s commandments, that draws blessing down to us in relation to that object. About this the sages said in Babylonian Talmud, Rosh Hashanah 16a:

It was taught: Rabbi Judah said in the name of Rabbi Akiva: Why did the Torah say, “Bring the omer on Passover”? Because Passover is the season of grain. The Holy One, blessed be He, said: Bring before Me the omer on Passover so that the grain in your fields may be blessed for you. And why did the Torah say, “Bring the two loaves on Shavuot”? Because Shavuot is the season of the fruit of the tree. The Holy One, blessed be He, said: Bring before Me the two loaves on Shavuot so that the fruits of the tree may be blessed for you. And why did the Torah say, “Pour water on the festival”? The Holy One, blessed be He, said: Pour water before Me on the festival so that the rains of the year may be blessed for you. And say before Me on Rosh Hashanah Kingship, Remembrances, and Shofarot: Kingship, so that you make Me king over you; Remembrances, so that your remembrance may rise before Me for good, and by what means? By the shofar. Rabbi Abbahu said: Why do we blow with a ram’s horn? The Holy One, blessed be He, said: Blow before Me with a ram’s horn so that I may remember on your behalf the binding of Isaac son of Abraham, and I shall regard it as if you had bound yourselves before Me.

See also Nahmanides on Exodus 25:24, who writes:

“A gold border around it” – a sign of the royal crown, for the table signifies wealth and greatness, as people say, “the table of kings”; this is Rashi’s language. And so it is. This is the secret of the table: for the blessing of God, from the time the world was created, no longer creates something from nothing; rather, the world proceeds according to its order, as it is written, “And God saw all that He had made, and behold, it was very good.” But when there is some root or base for a thing, blessing can rest upon it and increase it, as Elisha said, “Tell me, what do you have in the house?” and the blessing rested upon the flask of oil and filled all the vessels; and in the case of Elijah, the jar of flour was not consumed and the cruse of oil did not fail. So too the table with the showbread: blessing rests upon it, and from it satiety comes to all Israel. Therefore they said: every priest who received even a small piece ate and was satisfied.

In the commandment of the half-shekel, Sefer HaHinukh found it necessary to note that the rising of remembrance is from the side of the recipient, lest we think that the Holy One needs reminders from us in order to remember us.

The meaning of this is that the uniform act of contributing the half-shekel is not intended to create remembrance in God, but to create a reality here below. This act turns us into a collective, and the divine flow and atonement then descend upon us as a collective.

Kalbon

This may explain a unique law that we find regarding the half-shekel, namely the law of the kalbon, a small surcharge. The Mishnah in Shekalim 1:6-7 requires two people who give the half-shekel together, that is, who contribute one full shekel jointly, to add another kalbon, meaning the amount paid to a moneychanger for breaking a full shekel into two half-shekels. Sefer HaHinukh adds that the obligation of kalbon applies whenever a person does not give an actual half-shekel coin:

They further said that anyone who does not give an actual half-shekel coin, which was the coin current at that time, but instead gives silver equal to its weight or small coins, must add a small amount to the weight of his shekel; and that small amount is called a kalbon. That small amount is the moneychanger’s profit when he exchanges a minted half-shekel for small coins. Therefore two people who brought one full shekel between them are liable for a kalbon, because if they had wished to exchange it they would have had to give the moneychanger the kalbon, and so too they must give it to the treasurer, because the verse obligated them in a half-shekel, and therefore they are liable for it or for its exact value.

Minhat Hinukh, in section 5 there, wonders what the source is for Sefer HaHinukh’s elaboration of the obligation of kalbon. He explains that Sefer HaHinukh arrived at it by reasoning: a person is always required to give an amount that will leave the treasury chamber with exactly a half-shekel coin from each person.

The obligation to give the half-shekel is thus structured so that, in the end, an actual half-shekel from each person will lie in the chamber. If there are ancillary costs, they fall on the donor. In the end there must be a half-shekel from every person in the chamber, and in this way a collective is formed. The coins are absorbed into one another, and thus the Jewish collective is created.

Up to this point we have seen that the obligation of the half-shekel is bound up at its core with the individual’s belonging to the collective. In the following sections we will see a legal rule that emerges from this characteristic: the transfer of the half-shekel to the collective.

B. Transfer to the collective by minors in the Half-Shekel

Introduction: the age of obligation

As is well known, the obligation in commandments begins at the age of majority, usually thirteen. By contrast, in the verses cited above it appears that the obligation of the half-shekel begins at age twenty and up. However, from the unqualified language of Maimonides in Laws of Shekalim 1:7 it appears that he obligates every Jew from the age of majority, and this is explicit in his Commentary on the Mishnah, Shekalim 1:3.³ But Sefer HaHinukh does in fact rule, at the beginning of his discussion, that the obligation begins at twenty:⁴

That every Israelite from twenty years old and upward, whether poor or rich, should give half a shekel, which is ten gerahs’ weight of silver, every year into the hands of the priests, as it says: “This they shall give, everyone who passes among those counted.”

He derives this from the verse, “everyone who passes among those counted.” As we saw, this would seem to be explicit in the verse itself, “from twenty years old and upward,” but perhaps one cannot derive it from there because that might be understood as a command limited to that particular time. Maimonides and those who follow him apparently read the verse that way.

This dispute also appears between Bartenura and Tosefot Yom Tov on chapter 1 of Shekalim. Bartenura writes there on Mishnah 3:

“Minors” – even if they have produced two hairs, so long as they are under twenty.

In the preceding comment it appears that he ties this to a dispute between different interpretive traditions:

From whom do they exact collateral? From Levites – this excludes the one who says that they do not exact collateral from Levites, because it is written, “everyone who passes among those counted, from twenty years old and upward,” and the Levites were not counted from the age of twenty.

That is, there is a view that expounds the phrase “everyone who passes among those counted” as excluding Levites, and therefore obligates every Jewish adult. Another view does not exclude Levites from the verse, but instead learns from it to exclude anyone who does not go out to military or labor service, namely everyone under the age of twenty. In practice we rule that Levites too are obligated, and therefore this verse must come to exclude everyone under twenty.

Tosefot Yom Tov, there on Mishnah 4, understands that Bartenura derives this from the verse “from twenty years old and upward,” but in his opinion this is not the plain sense of the Mishnah. He therefore cites Nahmanides’ explanation that the verse refers to the contribution for the silver sockets and not to the contribution for the offerings, that is, the half-shekel.

Transfer to the collective

The Mishnah in Shekalim 1:5 rules:

Even though they said that they do not exact collateral from women, slaves, and minors, if they did pay the shekel we accept it from them. If a gentile or a Samaritan paid the shekel, we do not accept it from them. Nor do we accept from them bird-offerings for men with discharges, women with discharges, women after childbirth, sin-offerings, or guilt-offerings. But vows and freewill offerings we do accept from them. This is the general rule: whatever may be vowed and donated voluntarily, we accept from them; whatever may not be vowed and donated voluntarily, we do not accept from them. And so Ezra explicitly said: “It is not for you and for us together to build the House of our God.”

In other words, although women, slaves, and minors are not obligated in the half-shekel, we may nevertheless accept a half-shekel from them. By contrast, from gentiles we do not accept the half-shekel at all, just as we do not accept anything that is not brought as a vow or a freewill offering.

Bartenura writes there:

We accept it from them – on condition that they transfer it entirely to the collective, so that a communal offering should not be brought from the property of an individual.

That is, Bartenura makes the acceptance of the half-shekel from those who are not obligated conditional on their transferring the money entirely to the collective. Otherwise, the money used to purchase the offerings would remain their money, and it would turn out that a communal offering was brought, at least in part, from the property of an individual. Bartenura’s innovation is that simply handing over the money to the treasury chamber is not enough, because there is an ordinary kind of delivery that still leaves the money as ordinary, unconsecrated property belonging to the donor. For the transfer to be effective, and for the offerings purchased with it not to be ordinary property brought into the Temple courtyard, a special kind of transfer is required, what he calls a complete transfer. Presumably he means what the sages later call a “full and unreserved transfer.”

This immediately raises a difficulty. According to this, why do we not accept the half-shekel from a gentile? If he fully and properly transfers the money to the chamber, then the money belongs there and becomes consecrated, and the offerings are purchased from communal funds. Why should the source of the money matter, if even someone who is not obligated in the commandment can fully transfer it to the collective and thereby consecrate it?

One might distinguish here between the prohibition on accepting a gentile’s half-shekel and the separate question whether, if the money was accepted despite that prohibition, it becomes consecrated. It might be argued that if we do accept the gentile’s money, and if he fully transfers it to the chamber, then the money is consecrated and communal offerings may be purchased from it. The gentile has simply conveyed the money to the Jewish collective, and it has now become part of our communal funds. The Mishnah would then merely be teaching that there is a prohibition against taking money from him for this purpose.

But it seems that the later authorities did not understand the Mishnah this way. Several of them therefore indeed struggled with the question why we do not accept the half-shekel from a gentile who fully transferred it to the collective, and we will return to this below.

The source of Bartenura

Minhat Hinukh, in section 1, writes that Bartenura’s source is the discussion in Babylonian Talmud, Menachot 21b. There the Gemara cites a tannaitic dispute about whether priests are obligated to give the half-shekel, a dispute that originates in Mishnah Shekalim 1:4:

For we learned: Rabbi Judah said, Ben Bukhri testified in Yavneh: Any priest who pays the shekel does not sin. Rabban Yohanan ben Zakkai said to him: Not so; rather, any priest who does not pay the shekel sins.

The Gemara then raises a question according to Ben Bukhri, who holds that priests are not obligated in the half-shekel:

According to Ben Bukhri, since initially they are not obligated to bring it, if they do bring it they are also sinning, for they are bringing ordinary property into the Temple courtyard.

To this the Gemara answers:

They bring it and transfer it to the collective. You might have thought that the Merciful One granted this right to Israelites, who have a treasury fund, but did not grant it to priests, who have no treasury fund. Therefore it teaches us otherwise.

That is, even according to Ben Bukhri, priests can volunteer and give the money to the treasury chamber as half-shekel, and it will count as the property of the chamber, meaning that it becomes consecrated.

From the plain meaning of the Gemara it seems that the novelty of the conclusion is that if priests give the money to the treasury chamber it becomes consecrated. In the Gemara’s language, priests too “have a treasury fund.” On this reading, the main novelty is that Scripture grants them this legal possibility. The point is not that they must perform some special act of complete transfer to the collective; rather, even an ordinary transfer to the chamber consecrates the money, including for those who are not obligated in the mitzvah of the half-shekel.

If so, it is difficult to see here the source for Bartenura’s statement, which innovates that priests must perform some special act of transfer to the collective, and that ordinary handing over of the money is not enough. To be sure, the basic fact that the transfer consecrates the money could already have been seen from the Mishnah in Shekalim cited above, since we saw that even one who is not obligated in the half-shekel may nevertheless pay it and the money becomes consecrated. Perhaps for this reason Minhat Hinukh did not want to understand that as the novelty of the Menachot passage according to Ben Bukhri.

In any event, Minhat Hinukh understood the Gemara’s conclusion to mean that the transfer must be done fully and unreservedly, for otherwise the offerings would be considered ordinary property in the Temple courtyard. It should be noted that although the law does not follow Ben Bukhri, and we rule that priests are in fact obligated in the half-shekel, though they are not coerced, one can still learn from here that someone who is not obligated in the half-shekel may nevertheless give it, and if he transfers it fully to the collective the money becomes consecrated.

The objection of Ketzot HaHoshen and Sha’ar HaMelekh

We saw above that Maimonides and those who follow him hold that the mitzvah of the half-shekel obligates every Jew from the age of majority. Ketzot HaHoshen, at Hoshen Mishpat 235:4, and Sha’ar HaMelekh, Laws of Shekalim 1:1, object to this: how can the Mishnah we cited say that we accept the half-shekel from a minor, when a full transfer to the collective is required, and according to the law a minor’s act of conveyance is ineffective?⁴ If so, the offerings purchased with his money will remain ordinary property and will come from the funds of an individual. By contrast, according to Bartenura the matter is straightforward, because on his view the obligation of the half-shekel begins only at age twenty, and therefore the “minor” mentioned in the Mishnah, from whom we accept the half-shekel, can be understood as a youth above the age of majority, at which point his conveyance is effective. But on Maimonides and those who follow him, the difficulty remains.

Sha’ar HaMelekh resolves the question by saying that the minor’s money is nullified within the majority of the shekels of the rest of Israel. But later authorities, see Minhat Hinukh section 1, s.v. “u-ve-Sha’ar HaMelekh,” and Avnei Milu’im 28:33, reject this, because property that remains under distinct ownership is not nullified by majority, as may be seen in Babylonian Talmud, Beitzah 38b.⁵⁶

To resolve this difficulty against Maimonides, we must enter more deeply into the discussion of “full and unreserved transfer.”

C. Full and unreserved transfer

The sugya of “full and unreserved transfer” at the end of Bava Metzia

The main discussion that deals with the rule of full and unreserved transfer appears in the Babylonian Talmud at the end of tractate Bava Metzia. The sugya deals with Mishnah Shekalim 4:1 concerning those who guard the aftergrowth of the Sabbatical year:

Those who guard the aftergrowth of the Sabbatical year take their wages from the appropriation of the treasury chamber. Rabbi Yose says: Whoever wishes may volunteer and serve as an unpaid guardian. They said to him: If you say so, then the omer and the two loaves will not come from communal funds.

According to the Rabbis, the guards who watch over the barley during the Sabbatical year for the sake of the omer offering, and the wheat for the sake of the two loaves, must take their wages from the treasury chamber. Rabbi Yose holds that they may volunteer and serve without pay. The Rabbis argue against Rabbi Yose that on his view the omer and the two loaves would come from private property rather than from communal funds.

In Babylonian Talmud, Bava Metzia 118a-b, two possibilities are offered to explain the dispute:

Is not their dispute about this: the first tanna holds that watching ownerless produce effects acquisition, and therefore if we give him wages, yes, but if not, no; while Rabbi Yose holds that watching ownerless produce does not effect acquisition, and when the public goes and brings it, only then does it acquire it. And as for your question, this is what they said to him: even according to your own reasoning and ours, the omer and the two loaves do not come from communal funds. Rava said: No. Everyone agrees that watching ownerless produce effects acquisition, and here they are disputing whether we are concerned that he may not transfer them fully and unreservedly. The Rabbis hold: we give him wages, and if not, we are concerned that he may not transfer them fully and unreservedly. Rabbi Yose holds: we are not concerned that he may not transfer them fully and unreservedly. And as for your question, this is what they said to him: according to your reasoning and ours, since we are concerned that he may not transfer them fully and unreservedly, the omer and the two loaves do not come from communal funds.

The first possibility is that the Tannaim disagree whether merely watching ownerless produce effects acquisition. If it does, then the produce becomes the guardians’ property unless they are paid; if it does not, then when the public later harvests the produce it acquires it. Clearly, this proposal assumes that there is indeed concern that the produce will not be transferred fully and unreservedly, and therefore if the guardians acquired the produce, the assumption is that the offering does not come from communal funds. Their transfer to the public is not regarded as full and unreserved.

The second possibility is exactly the opposite: everyone agrees that watching ownerless produce effects acquisition, and the dispute is whether we rely on the guardians, who have acquired the produce by watching it, to transfer it fully and unreservedly to the public or not, in which case the omer and the two loaves would come from private property.

It should be noted that later in the Gemara there is yet another explanation, that they disagree because of a decree concerning strong-armed men, and it seems that this is how Maimonides rules in practice.

What is “full and unreserved transfer”?

Rashi there explains the dispute according to the second possibility as follows:

Everyone agrees that watching ownerless produce effects acquisition, and Rabbi Yose’s reason is that this person transferred it to the public, and it is therefore found to come from communal funds.

The Rabbis are concerned that in his heart he may not truly wish to transfer it fully and wholeheartedly, for it is agreeable to him that they should be offered from his own property.

According to Rabbi Yose, then, when the produce is transferred to the public it is acquired by the public and becomes consecrated, and the offerings come from communal funds. According to the Rabbis, by contrast, there is concern that the guardian does not really intend in his heart to transfer the produce fully and wholeheartedly to the public, because he is pleased by the idea that these offerings should be brought from his own property, perhaps because he thinks the merit of the mitzvah will thereby be credited specifically to him.

At first glance, this does not imply two different kinds of transfer, one “full and unreserved” and one ordinary. Rather, transfer is an ordinary conveyance, except that there is a concern that if the guardians hand the produce over to the public, they may not actually convey ownership to the treasury chamber at all, because they want the offering to come from their own property. They hand it over physically, but not juridically. According to Rabbi Yose, by contrast, the guardians really do convey ownership to the public, and there is no concern that they wish to keep it for themselves. Therefore he holds that the offerings come from communal funds.

But if this is the correct reading, why not simply tell the guardians that they must convey ownership to the public, and that otherwise the transfer will be ineffective? It seems that according to the Rabbis, even if we tell them this, the concern remains, because these guardians want the offering to come from their own property. The question still remains whether there are in fact two kinds of transfer, “full and unreserved” and ordinary, or whether ordinary transfer is just legal conveyance, and the concern is that no conveyance took place at all.

The legal meaning of a “full and unreserved transfer”

Mishneh LaMelekh, in Laws of Shekalim 4:6, discusses at length whether we rule in practice that there is concern something was not transferred fully and unreservedly, under each of the three explanations in the Gemara and with respect to which of them is accepted as law. In the course of his discussion he raises a difficulty against the Rabbis, who are concerned that the transfer may not be full and unreserved: what room is there for such a concern? These are merely unexpressed intentions, and the accepted rule in halakha (Jewish law) is that unexpressed intentions are not legally significant. If a person performs an act of conveyance and transfers the money to the public, then the money belongs to the public, regardless of what was in his heart. What matters is what he says and does, not what he thinks. He concludes that this objection requires a master craftsman and the son of a master craftsman to resolve it, and he leaves it unresolved. Rabbi Akiva Eger, in his glosses to the Mishnah in Shekalim at the beginning of chapter 4, also leaves this unresolved.

We will suggest here one possible way to understand the meaning of this transfer to the public, and it seems that it resolves several of the difficulties we have encountered. Admittedly, it is a novel proposal and requires deeper and broader examination.

We should begin by noting that a conveyance from an individual to a collective of which he himself is a member is, at least on the face of it, legally problematic. The person who conveys the money belongs to the same collective that acquires it, and it is therefore as though he were conveying from one of his own hands to another of his own hands. Such an act is ineffective in the case of a private person. For example, I cannot serve as so-and-so’s agent to acquire something from myself on his behalf, because one of my hands cannot acquire from the other hand on his behalf. An act of conveyance requires a transfer from one owner to another.

To be sure, in the halakhic conception the collective is an independent entity, and not merely the aggregate of all the individuals included within it. But even so, there is still a connection between the individuals and that collective entity. For example, the Gemara in Babylonian Talmud, Bava Batra 43a discusses the theft of a Torah scroll from the collective of a certain town. The owner of the scroll is the collective, yet the Gemara says that no resident of the town may testify against the thieves and judge them, because all are considered personally interested in the outcome. So here too we do not fully separate the individuals from the collective to which they belong.

On the other hand, when the conveyance is effectively from a person to himself, there is also something easier about it. On the face of it, no conveyance should be needed at all, because the scroll already belongs to the collective through the individual who is included in it. An example is the view of Rabbenu Tam in his explanation of the baraita in Bava Batra concerning “they may compel adherence to their stipulations”: according to him, its main novelty is that in a contract between an individual and the collective, no formal act of conveyance is required at all. See Menachem Elon’s HaMishpat HaIvri, p. 571. Presumably, this is because the individual is already included in the collective. Yet even this is not entirely precise, because every person who belongs to a collective also has private property. A person within a collective wears two hats: he is an individual, and he is also a member of the collective.⁷

We therefore propose that transfer to the collective does not mean conveyance to the collective, but incorporation into the collective. In order for a person to transfer something from himself to the collective, he must incorporate himself into the collective, and then the thing is acquired by the collective automatically through him. If he is included in the collective, then his very ownership of the property or the money constitutes ownership by the collective to which he belongs over that same money. We saw in the first section that incorporation into the collective is part of the very essence of the mitzvah of the half-shekel, and now we see the legal aspect of that idea.

According to this approach, the Rabbis’ concern is that a person who does not understand the meaning of this act will not intend to incorporate himself into the collective, and therefore his property will not pass to the collective. The act of conveyance is not effective here by itself, as in an ordinary transfer from hand to hand. The entire transfer of ownership depends on his intention to incorporate himself into the collective, and in that case no formal act of conveyance is needed at all. This resolves Mishneh LaMelekh’s objection: why is there concern about full and unreserved transfer, if unexpressed intentions are not legally significant? According to our approach, what occurs here is not an act of conveyance but an act of incorporation, and that act takes place entirely in the heart.

Resolving the other difficulties

We saw that later authorities such as Sha’ar HaMelekh and Minhat Hinukh asked, with respect to Maimonides, how a minor can make a full and unreserved transfer to the collective, when a minor lacks capacity for legal conveyance. The answer is now simple: no conveyance is required here at all. If the minor intends to transfer fully and unreservedly to the collective, that is, to incorporate himself into the collective, then his money passes automatically into the domain of the public, that is, into the treasury chamber, and becomes consecrated.

We also cited Sha’ar HaMelekh’s answer that the minor’s money is nullified in the rest of the money in the treasury chamber, and we saw that later authorities objected to him on the basis of the discussion in Beitzah 38b: how can property under different ownership be nullified? According to our proposal there is no difficulty at all. In a case where the donor is himself part of the collective, his incorporation into the collective absorbs him into it, and the money is absorbed into the communal funds. This is not ordinary nullification by majority, but a result of the individual’s incorporation into the collective. From the outset the money belonged to an individual who belonged to the collective, and now it becomes the money of the collective. This is not a process of nullification but of incorporation, and therefore one cannot raise an objection from the discussion in Beitzah concerning the nullification of ownership by majority.

We also asked why we do not accept the contribution from a gentile, since he too could supposedly transfer it fully and unreservedly. According to our approach the answer is simple: a gentile cannot be incorporated into the collective, and therefore he is incapable of making a full and unreserved transfer to the collective. He can convey property to the collective, just as in any transaction conducted with the collective, but he cannot contribute money to the collective in such a way that it becomes part of the collective’s own funds. As we saw, later authorities understood that not only do we not accept such a contribution from him, but even if it was given, it does not become consecrated and is ineffective.⁸

What is the law in practice?

We saw that there is a disagreement among the approaches in the Bava Metzia sugya whether the dispute between the Rabbis and Rabbi Yose should be explained in terms of concern about incomplete transfer or not. In practice we rule like the Rabbis, who do not allow the guardians to serve without pay. The question is whether, according to the Rabbis, there is indeed concern that they may not transfer fully and unreservedly, or whether the reason is something else, since, as noted, the Gemara offers two other explanations there as well.

Maimonides, in Laws of Shekalim 4:6, records this law as follows:

One who volunteers to guard without pay is not heeded, because of strong-armed men, lest they come and take the produce from them. Therefore the sages enacted that they should take wages from the chamber, so that everyone would keep away from the place where they are guarding.

Maimonides thus grounds the Rabbis’ view in the third explanation, namely a decree because of strong-armed men. What, then, is Maimonides’ position concerning full and unreserved transfer? The Mishneh LaMelekh cited above discusses this, and in his view, see there s.v. “ve-hineh kefi,” according to the second explanation there is indeed a dispute between the Tannaim, but according to the other two explanations there is no need to attribute to either side a definite view as to whether such a concern exists.⁹ If so, it follows that one cannot determine Maimonides’ practical ruling on this point.

In the next section we will see that there are authorities from whom practical conclusions can be drawn, and we will also discuss the limitations of the concern about full and unreserved transfer.

D. Full and unreserved transfer in the Half-Shekel

A contradiction in Bartenura’s view

Bartenura explains the Mishnah in Shekalim 4:1 according to the second explanation, namely that the dispute is whether there is concern about the transfer of the produce to the collective or not. Accordingly, as a matter of law, there is concern that a person may not transfer something fully and unreservedly.¹⁰ Tosefot Yom Tov there asks how this can be reconciled with the ruling we saw earlier, that we may accept the half-shekel from slaves, minors, and women, with no concern that they may not transfer it fully and unreservedly.

Tosefot Yom Tov suggests two directions for explaining Bartenura:

1. The shekalim themselves are not offered on the altar, and when offerings are purchased with them they are transformed into the property of the collective. By contrast, the produce guarded for the omer and the two loaves is itself what is offered on the altar. Since there is concern that it was not transferred fully and unreservedly, it turns out that a communal offering is being brought from the property of an individual. Here nothing changes until the moment of offering; what was transferred is itself what is offered above.

Tosefot Yom Tov rejects this as an explanation of Bartenura, because Bartenura’s wording does not suggest it. Bartenura writes, as we cited, that in the case of women and minors the transfer is effective provided that they transfer it fully and unreservedly. That implies that if they transfer it, there is no concern, and everything depends on their own act. By contrast, the explanation just suggested implies that the matter does not depend on whether they transfer it fully, but on the fact that there is a transformation before the offering, so that in the case of the half-shekel even an incomplete transfer would suffice. For that reason he offers a second explanation.

2. The omer and the two loaves are offerings brought only once a year, and therefore here there is concern that the guardians may not transfer them fully and unreservedly, because they want those offerings to be brought from their own property. By contrast, in the case of the half-shekel, which is designated for all communal offerings, there is no such concern.

To this Mishneh LaMelekh comments that he does not understand the distinction: why should there be a difference between one-time offerings and recurring offerings?

Similar difficulties in the Yoma sugya: two understandings of the concern about incomplete transfer

A similar difficulty arises in Tosafot on the sugya in Babylonian Talmud, Yoma 35b. There the Gemara discusses garments made by the priest’s mother, and whether they are fit for service:

Rav Huna bar Judah taught, and some say Rav Samuel bar Judah: After the communal service has been completed, a priest whose mother made him a tunic may wear it and perform private service in it, provided that he transfers it to the collective. – Is this not obvious? – You might have said: let us fear that perhaps he will not transfer it fully and unreservedly. Therefore it teaches us otherwise. They said about Rabbi Ishmael ben Pavi that his mother made him a tunic worth one hundred maneh, and he wore it, performed private service in it, and transferred it to the collective.

Tosafot, s.v. “neihush,” ask there:

Even according to the Rabbis who disagree with Rabbi Yose in chapter HaBayit VeHaAliyah [Bava Metzia 118a], who hold that the guardians of Sabbatical aftergrowth take their wages from the appropriation of the chamber, whereas Rabbi Yose says that anyone who wishes may volunteer and serve without pay, and the Gemara says that they disagree about whether we suspect that he may not transfer it properly to the collective, and the Rabbis hold that we do suspect this – here they agree. For we are witnesses that the High Priest transfers it properly, because he is great in Torah and knows that it must be transferred properly. Moreover, since all the honor of the priesthood is his, he transfers it properly out of affection for the service he performs in it.

Tosafot are thus asking why the Gemara here treats it as obvious that there is no concern that the priest will fail to transfer the garments fully and unreservedly, when according to at least one talmudic explanation this very principle is the subject of a tannaitic dispute in the Bava Metzia sugya.

Tosafot offer two ways to resolve the difficulty:

1. The High Priest is different, because he is learned in Torah and knows that the garments must be transferred to the collective, since priestly garments must come from communal funds. From this it appears that the main problem behind the requirement of full and unreserved transfer is knowledge: an ordinary person may simply not know that such things must be transferred to the collective. Mishneh LaMelekh cites Tosafot and says that this follows from the fact that we do not suspect people of deliberate wickedness. Anyone who knows will obviously transfer the item properly; the concern applies only to someone who does not know.

2. The second answer is that in the case of the High Priest there is no such concern because he rejoices in the honor of the priesthood and does not aspire to have the offerings come from his own property. According to this answer, the underlying concern is not lack of knowledge but improper ambition.

It somewhat appears from Tosafot that they rule in practice that there is indeed a concern that things may not be transferred fully and unreservedly, and that this is the Rabbis’ view, except that here there is a special case in which the concern does not apply.¹¹

Tosafot also raise an objection from the sugya in Menachot 21b:

And likewise according to Ben Bukhri, who says in chapter HaKometz Rabbah [Menachot 21b], “Any priest who pays the shekel does not sin,” and the Gemara asks: since initially he is not obligated to bring it, when he brings it he is bringing ordinary property into the Temple courtyard, and it answers that he transferred it to the collective – one may say that even if you hold that he agrees with the Rabbis of chapter HaBayit VeHaAliyah [Bava Metzia 118a], there even the Rabbis agree. Since all Israel bring shekalim, the priests too, even though exempt, transfer them fully and unreservedly to the collective. Moreover, since all the benefit from the offerings bought with the shekalim is theirs, they resolve completely and transfer them properly.

We saw that according to Ben Bukhri, who holds that a priest is not obligated in the half-shekel, it is nevertheless permitted for a priest to transfer it to the collective, and there is no concern that he will fail to transfer it fully and unreservedly. This too is difficult according to the Rabbis, who hold that such a concern exists.¹²

Here as well Tosafot resolve the matter in two ways:

1. In the case of the half-shekel there is an obligation on all Israel to give to the treasury chamber, and therefore even one who is exempt understands that his shekalim must be transferred to the collective. In other words, with the half-shekel everyone knows that the transfer must be complete, and therefore there is no concern. Once again, the underlying assumption is that the basic problem is lack of knowledge.¹³

2. With priests there is no concern that they will fail to transfer properly, because the benefit from the offerings, portions of the meat, hides, and the like, belongs to them. As above, the assumption here is that the concern is one of deliberate misconduct, but that in the case of priests this concern does not apply for independent reasons.

Our proposal for resolving the difficulties

According to our approach, it may be possible to resolve Bartenura’s difficulty and Tosafot’s questions in Yoma more simply. When we are speaking about the half-shekel, we saw that full and unreserved transfer to the collective means incorporation into the collective. We also saw in the first section that the whole essence of the mitzvah of the half-shekel is incorporation into the collective. If so, it is obvious that in the half-shekel one can transfer fully and unreservedly to the collective, and there is no concern that the transfer will be incomplete. The central meaning of the commandment of the half-shekel is precisely to become part of the collective.

By contrast, in the case of priestly garments, and even in the case of the guardians of the aftergrowth for the omer and the two loaves, what is given to the collective is not given within the framework of the half-shekel, but by way of an ordinary conveyance to the treasury fund. In such a situation, concern arises that the transfer may not be full and unreserved, because they want the communal offerings to come from their own property.

It seems that this principle also underlies several of the answers we cited in this section. Tosefot Yom Tov explains that when the money from the treasury chamber is transformed and used to buy something that will be offered, the property of the individual becomes the property of the collective. The explanation may be that the purchase is made in the name of the collective, and in that way the individual becomes incorporated into the collective when his money is used to buy communal offerings from the chamber funds. By contrast, aftergrowth that is given directly to the Temple treasury in order to be offered itself, as the omer or the two loaves, has no meaning of incorporation into the collective, because it is not given within the framework of the half-shekel but as a voluntary contribution to the chamber funds. Here, according to the Rabbis, there is concern that the items are not transferred fully and unreservedly.

Tosefot Yom Tov rejected this explanation because from Bartenura’s wording it seems that everything depends on the intent of those who transfer the items, and not on what happens to the money after the transfer. But according to our proposal, that is precisely the point: the donors do transfer fully and unreservedly, and they are incorporated into the collective precisely through the purchase of communal offerings with their money.

The second answer of Tosefot Yom Tov is that one-time offerings are different from regular offerings. Here too one may perhaps see a certain expression of the principle we have proposed. When the guardians of the aftergrowth contribute produce to become a communal offering, they relate to a specific offering, and there is therefore concern that they want that offering to come from their own property. But with the contribution to the treasury chamber, which is used to buy communal offerings throughout the entire year, the contribution is absorbed into the communal fund that purchases those offerings. It is therefore clear that there is no concern that it was not transferred to the collective. The anonymity of the use of the half-shekel is precisely the mechanism that creates the incorporation of individuals into the collective.

Something very similar appears in Tosafot’s comment that in the case of the half-shekel there is no concern that it will not be transferred fully and unreservedly, because everyone is obligated to transfer it. Since this is the essence of the mitzvah of the half-shekel, transfer within this framework means incorporation into the collective and not mere monetary conveyance. The conveyance is only the result of incorporation. Therefore, in the case of the half-shekel there is no concern that it will not be transferred fully and unreservedly, because that is the whole meaning of the transfer. Consequently, even someone exempt from the half-shekel who wishes to give it voluntarily knows that this is what giving the half-shekel means: incorporation into the collective. Therefore, in this mitzvah there is no concern that the transfer will not be full and unreserved. By contrast, in other commandments where transfer to the collective is a monetary conveyance, there is concern that the donor will not truly convey ownership and will want the offering to come from his own property.

Incorporation as a mechanism unique to the Half-Shekel

The last formulation we saw in the previous paragraph presents a somewhat different conception from the one we proposed earlier: the mechanism of incorporation into the collective, as the meaning of full and unreserved transfer, characterizes specifically transfer within the framework of the mitzvah of the half-shekel, and not every transfer to the collective. In other contexts, such as priestly garments or the omer and the two loaves, the transfer is effected through conveyance and not through incorporation into the collective. Therefore there is room for concern that the transfer may not be full and unreserved, whether because of ignorance or because of deliberate intent. By contrast, in the case of the half-shekel, the entire point of the mitzvah is incorporation into the collective, and therefore transfer to the collective always takes place fully and unreservedly, that is, it always works.

One may find support for this in the following observation regarding the difficulty that arises with respect to those exempt from the half-shekel: how can we accept it from them, when they are exempt and there should therefore be concern that they will not transfer it fully and unreservedly? On its face, this difficulty is very strange. Why are we not concerned that those who are in fact obligated in the mitzvah of the half-shekel might likewise fail to transfer it fully and unreservedly? This is puzzling whether one explains the concern as ignorance or as deliberate scheming, according to the different answers in Tosafot to Yoma. If so, why is the question, already in the Gemara in Menachot and certainly in the commentators we saw, only about those who are not obligated: how can we accept their contribution? Seemingly, even in the case of those who are obligated, we ought to be concerned that they may fail to transfer their shekels fully and unreservedly to the collective.

According to our approach, the answer is simple. In the case of someone who is obligated to give the half-shekel, there is no concern at all that he may fail to transfer it fully and unreservedly, because from the moment he gives the money, it becomes consecrated automatically. Within the framework of the mitzvah of the half-shekel, the transfer is not effected by conveyance but by the mechanism of incorporation into the collective. Here the conveyance and the consecration happen automatically.

We can now understand that with respect to priests, according to Ben Bukhri, or women, slaves, and minors, who are exempt from this mitzvah, there was initially reason to think in the Gemara that even if they did give it, the money would not become consecrated, because for them this mitzvah is not formally defined, they are not obligated in it, and therefore the mechanism of incorporation does not apply to them. This is the language of the Gemara in Menachot that we cited above: priests “have no treasury fund.” We noted that this is not the language of suspicion but of essence: for them the mechanism of transferring money to the treasury chamber by means of incorporation into the collective is not defined. Therefore the Gemara initially thought that they could not give the half-shekel at all. The conclusion is that if they wish to do so voluntarily, they too “have a treasury fund,” that is, this mechanism is valid for them as well. They are not obligated, but the possibility exists. That is not the case with a gentile, for whom incorporation into the collective is impossible. Therefore there is serious reason to think that his contribution is meant to make the communal offerings come from his own property, and therefore we do not accept it. As we saw, later authorities understood that even if he gave it and we accepted it, his contribution is not consecrated. He cannot make a full and unreserved transfer by the mechanism of incorporation, but only by the mechanism of conveyance.

We saw that those who are exempt from paying the half-shekel can nevertheless transfer their shekels to the collective voluntarily. One might have thought that in their case the transfer is effected through conveyance and not through incorporation, since they are not commanded in this mitzvah and the mechanism is therefore not defined for them. If that were so, there should have been concern that they would fail to transfer it fully and unreservedly, were it not for the local answers of Tosafot in Yoma, that priests are different and so forth. The novelty, according to this explanation in Tosafot, is that even those who are not obligated in the mitzvah of the half-shekel give to the treasury chamber through the mechanism of incorporation and not through the mechanism of conveyance. That is why Tosafot say that even in their case there is no concern that they will fail to transfer fully and unreservedly, just like the other contributors who are obligated in the mitzvah.

Conclusions

There are several legal implications to the picture proposed in this section. For example, minors will not be able to transfer to the treasury chamber items other than the half-shekel. Thus garments made by minors, or garments owned by them, cannot be transferred to the chamber, because minors lack the capacity for conveyance. By contrast, in the mitzvah of the half-shekel there is a mechanism of incorporation into the collective, and therefore even minors can transfer their shekels to the collective with no concern. As noted, according to Tosafot even the transfer of someone who is not obligated in the mitzvah of the half-shekel is effected there through the mechanism of incorporation and not through the mechanism of conveyance, and this mechanism operates even for minors.

Footnotes