Q&A: Because It Is Preferable That He Be a Foreigner
Because It Is Preferable That He Be a Foreigner
Question
In another question, a passage came up from the Talmud, Bava Metzia 46a. There are two ways to use a legal workaround with second tithe and redeem it without adding the extra fifth, by means of a foreigner. One way is for the owner of the tithe to give money to a foreigner (for example, his son) so that the foreigner can redeem the tithes without the extra fifth. A second way is for the owner of the tithe to give the tithe produce as a gift to someone else, and then redeem the tithe himself as a foreigner without the extra fifth, after which the other person returns the produce as a gift. In both ways, of course, the redeemer is a foreigner with respect to the produce, and therefore does not add the extra fifth.
The Talmud concludes from the Mishnah that giving the money is preferable: “This is preferable, because he is a foreigner,” and Rashi explains that it does not look as much like a legal trick to exempt oneself from the tithe. That is, when the produce is given, the original owner redeems it without the extra fifth, and that is worse; whereas when money is given, someone who is not at all the owner of the produce redeems it without the extra fifth, and that is better. If the original owner redeems it without the extra fifth, it ‘looks’ more like a legal workaround.
What is the reasoning behind this distinction? The intention of the owner of the tithe is the same in both cases. An outside observer who sees everything that was done understands the same thing in both cases. In practice too, in both cases the redeemer is a foreigner. So what is the difference?
Answer
This is about what looks preferable. After all, this is a legal workaround, and that is at most a rabbinic issue, if it is even an issue at all. The Talmud apparently assumes that if you yourself redeem the tithe, it looks worse. The appearance is connected more to who gives the redemption money than to who eats the produce after the redemption.
Discussion on Answer
Not sure. Transferring the money too is only a “heavenly registration.” But you’re right that selling land and leavened food belong to the more inferior type. But it’s hard to argue about considerations of appearance.
Now I just thought of it with one small additional angle. I’d be glad to hear your opinion.
When the original owner gives the produce and redeems it with his own money and then gets the produce back, then in practical, real-world terms the stable owner of the produce — the only one who actually has the power to make real use of the produce, even though for a brief and fleeting moment there was some heavenly registration (though of course one that is essential and very significant) that ownership of the produce passed to someone else — that owner redeemed his produce with money. But when the other person redeems it with money he received from the owner, then even in practical terms there is someone else here, an outsider, carrying out the redemption of the produce, and the fact that he had previously received money from the owner for the purpose of the redemption is not relevant at all, and not only on the essential level.
In the case of giving produce, the legal workaround uses only heavenly legal effects in order to avoid the extra fifth. In the case of giving money, the legal workaround exists in reality itself. One implication of this is, for example, that the legal workaround of the sale permit, where one avoids the prohibition of “it shall not be seen” (and the prohibition of leavened food that remained in a Jew’s possession over Passover) only by means of heavenly legal effects of acquisition, even though in practice and in reality it looks as though he violated the prohibition, is an inferior kind of workaround (which the Mishnah permits using only if there is no other option, as when the owner of the threshing floor has no money available).