Q&A: Terumah Without the Owner’s Knowledge and Unknowing Despair in Maimonides’ View
Terumah Without the Owner’s Knowledge and Unknowing Despair in Maimonides’ View
Question
Hello Rabbi,
There is a Maimonides in the Laws of Terumot, chapter 4, halakhah 3:
“If one separated terumah without permission, or went down into another person’s field and gathered produce without permission in order to take it and separate terumah from it—if the owner came and said to him, ‘Go take from the better produce,’ then if there was better produce there than what he separated, his terumah is valid terumah, since the owner is clearly not particular. But if there was no better produce there, his terumah is not terumah, because he said this only as a way of protesting. And if the owner came and gathered more and added to it, then whether he had better produce than that or not, his terumah is valid terumah.”
At first glance, it is difficult: why does Maimonides rule that terumah separated without the owner’s knowledge counts as terumah, if in that very Talmudic passage in Bava Metzia 22a they compare the matter of terumah without knowledge to unknowing despair, and it is well known that the Jewish law follows Abaye regarding unknowing despair—that it is not considered despair (and Maimonides also rules that way)? Therefore I would have expected that in the matter of terumah as well, terumah without knowledge would not be valid terumah. Also, the Talmud there says, “Rava explained it according to Abaye: where he made him an agent,” which implies that according to Abaye, if there was no appointment as an agent, the terumah would not take effect.
Best regards,
Answer
I don’t have time right now to get into it, but there is no doubt that in the Frankel index on that passage you will find a lot of discussion of such a question.
According to the Shakh’s approach (in section 358, se’if katan 1), the conclusion of the Talmud is that one should not compare taking someone else’s property when he assumes that the other person will agree to it with unknowing despair. Therefore, “unknowing despair” is forbidden, whereas when it is known that the other person will later come and reveal his agreement to what was taken from him, the taking is permitted and takes effect retroactively. Maimonides holds like the Shakh’s approach, so there is no difficulty with his ruling.