Nezikin- the part of the Torah that we can change

The basis

Anyone who has learnt even a small part of Seder Nezikin (the part of gemara yeshivos tend to concentrate on the most) will have an idea of how intricate and detailed the Torah’s civil law is. The intellectual capabilities of Chazal, together with the huge amount written later to explain this part of the Torah, tend to make a deep impression on all those who put in the effort to understand them.

Something that is perhaps less well known is how limited the practical application of these laws is. Although it is obvious to all that cases of goring oxen and similar things are rare, we might like to think all financial disputes that come to Beis Din are resolved by rules derived from the cases in the gemara. While in principle this is true, and it does happen, in the vast majority of cases there is another major factor.

Legislation

Unlike other areas of the Torah, when it comes to civil law there are many mechanisms for making changes. Firstly, Batei Din have the right to confiscate assets.[1] Although for practical reasons this is rarely applied in new ways,[2] many of the existing laws in the gemara were made using this principle.¹

The more relevant point here is that even without Beis Din, any community has the power to make their own civil institutions.[3] How exactly this is applied is complicated, but the guiding principle is that all the rules can be fixed by the community and its representatives.[4] Many such new rules have been made historically, and were already incorporated into the Shulchan Aruch.[5]

Clearly there are limits to this. A community certainly cannot decide to rescind the prohibitions of taking interest or bribery. Since the underlying idea here is that mutual agreement can be extended to a communal level, rights that individuals cannot forgo also cannot be nullified by the public.

What defines what can or cannot be forgone by individuals or a community? I have not found anything written pinpointing this, but I think it makes sense to say that the limit is uprooting a commandment. Thus we cannot agree to interest payment, against the specific instructions of the Torah. But there is no commandment obligating Beis Din to apply specific rules of damages, property acquisition and similar things.[6]

How this is applied today

To the best of my knowledge, all batei din agree to the basic idea that I have described until now. Nevertheless, how widely it is applied differs from place to place. For example, all apply the rules of accepted practice in dealing with communal areas of buildings, but some stick to the Torah’s rules when it comes to things like damages. [7]

Probably the main (justifiable) reason for this is that different sectors of the community accept different areas of common law to different degrees. It is fair to assume that two Satmar Chasidim who start a business partnership do so under the understanding that Torah law, and not common law, will apply (I once heard from a judge that a secular court would also assume this, and act accordingly).

This aversion to common law is certainly not limited to Satmar Chasidim. With regard to some practices of the secular courts the consensus is that Torah law remains morally superior, and that there is no reason that the religious community should accept them.[8] Unlike the model Chazal describe, nowadays there is no body whose authority is clearly accepted by the entire religious community, which explains the different practices of batei din.[9]

The need for modernisation

If we want to facilitate the acceptance of the authority of the Torah by the wider community, it is imperative to change the common perception that batei din follow antiquated laws that are not capable of governing modern society. It is part of the job of the batei din to keep in touch with what is necessary for the times, and I will try to illustrate this with two examples.

The gemara tells us that one who causes damage indirectly is exempt from payment.[10] The logical basis for this may be the advantage of uniformity, due to the difficulty in pinpointing exactly when damage really was the result of human action.[11] The modern world simply cannot function under a system where the damaged has to bear losses like this, and the damager is not held accountable for his actions. Most batei din nowadays do in fact enforce payment in such cases.[12]

A major discussion amongst contemporary poskim is whether the Torah recognises the concepts of intellectual property and copyright.[13] It is very hard to find any basis for this in the classical sources. However, as I once heard from R’ Shlomo Fisher (who believes strongly that there is no halachic basis for this), it is imperative on the rabbis of communities worldwide to institute new decrees to forbid breaches of copyright law, and to punish violators where practical.

The difference between batei din and secular courts

The logical conclusion of all of this is that apart from the (significant) issue of who pays the legal bill, there should be little difference in practical outcome of most cases. Why then is it so important that people take their disputes to beis din?

Firstly, there is one important procedural difference. In secular courts, the main cases of both sides are presented by lawyers. The litigants themselves may not even say a word. Although most modern batei din also allow lawyers to speak, they will first hear the arguments of the litigants themselves. There is no ‘fifth amendment’, and the dayanim will always interrogate the litigants as well as other witnesses, in order to have the best chance of bringing out the truth.

Chazal frown upon the idea of a person advocating for another in court,[14] and they had not even seen the concept of someone who makes his entire living by doing this.[15] By now the amount of falsehood that the modern court system leads to is well known, and this advantage that batei din have should be clear to all.

There is also a deeper issue here, which would apply even if secular courts did away with their current system. The Rambam writes:

"כל הדן בדיני גוים ובערכאות שלהן, אף על פי שהיו דיניהם כדיני ישראל, הרי זה רשע וכאילו חרף וגדף והרים יד בתורת משה רבינו." (סנהדרין כו, ז)

“Anyone who litigates using the laws of non-Jews or in their courts, even if their laws were identical to Jewish laws, he is a rasha and it is as if he has blasphemed and raised his hand against the Torah of Moshe Rabeinu.” (Sanhedrin 26:7)

There are a few things that can be inferred from these words of the Rambam here. Firstly, the reason for this prohibition is nothing to do with the laws themselves. Based on what we have seen already, this should be clear. Secondly, the strong language indicates that we are dealing with a serious violation.

We can also understand the inherent logic behind this prohibition, and its severity. When we go to beis din, even if the rabbis have used their authority to legislate based on the needs of the generation, we demonstrate our subservience to Hashem and His Torah. One who decides to go elsewhere shows that he holds something else in higher regard than the Torah, chas v’shalom.[16]

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[1] See Gitin 36b. One important example is that although the Torah obligates a paid worker for any reasonably avoidable damage that he causes, Chazal instituted that barrel transporters who slip and break the barrel are exempt from payment after taking an oath that it was unintentional. This was necessary so that people would accept such jobs (Bava Metsia 82b-83a).

[2] Mainly because Batei Din usually do not have the power to do this under secular law.

[3] See Bava Basra 8b-9a. This principle should not be confused with the concept of ‘dina demalchusa’, which deals with rules imposed on the community by a non-Jewish ruler.

[4] The details of this can be seen in Choshen Mishpat 231:28. Although this kind of legislation is subject to the approval of the ‘distinguished person’ of the community, and some explain that Torah scholarship is a critical part of this distinction, where there is no such person no other approval is necessary. As our communities do not have one person like this appointed over all communal issues, this condition is largely irrelevant.

[5] For example, the Geonim instituted that debts can be collected even from the movable items inherited from the debtor. Although we explained in How does halacha work? that the authority of the Geonim was not absolute, this and other institutions eventually became universally accepted (although in the times of the Rambam this was not the case, see Hilchos Malve v’Loveh 11:11).

[6] Although Beis Din are instructed to judge these cases, the details of when and how the rules are applied are not mitzvos. See for example the Rambam’s list of positive mitzvos, 237-248.

[7] See this article (from T’chumin, in Hebrew) for a comparison of protocols of different batei din, together with further halachic analysis.

[8] For example, in secular courts the default position is that the losing party pays the expenses of the victor. In halacha this is only the case when the loser is guilty of improper conduct in the legal proceedings (see Choshen Mishpat 14:5). The feeling is that the Torah way is superior, as one who feels that they are right should not have to avoid clarifying this out of fear of financial loss. The loss of time is usually enough of a deterrent to needless claims, and in addition the practice of most batei din is in fact to award damages in the case of a needless claim.

[9] Although often the litigants in the same case are from different backgrounds, once they agree to coming to a particular beis din they accept to follow whatever rules that beis din has. In any event, for the decision of beis din to be enforceable it is necessary for both parties to sign an arbitration agreement which will include this acceptance.

[10] Bava Kamma 60a

[11] The explanation of R’ Zalman Nechemia Goldberg, based on a similar idea of the Rambam in Sefer Hamitzvos, Lo Sa’aseh 290.

[12] See this arbitration agreement, paragraph 6. The truth is that there is in fact a lot of room for enforcing payment for indirect damage even without the need for legislation. See Rambam Chovel u’Mazik 7:7, and Shach Choshen Mishpat 386:4 and 418:4.

[13] A discussion of this (in Hebrew) can be seen here. The bottom line is that it is almost unanimously agreed that practically we do enforce these laws.

[14] See Avos 1:8, Shevuos 31a, Bava Basra 174b and the commentaries thereon. There is also Biblical basis for this in Mishlei 26:17.

[15] I do not mean to imply that all lawyers are dishonest, just that the code that they work by creates huge temptations which are too much for most to resist.

[16] There are cases where it is permitted to go to a secular court, mainly when the other party refuses to come to beis din or when beis din do not have the power to enforce their ruling. See Choshen Mishpat siman 26. It is also important that one should choose his beis din carefully. Due to the lack of regulation of batei din, unfortunately some of them do not abide by basic standards required by the Torah, thus causing tremendous chilul Hashem. If the other side insists on going to such a place, this in itself may be grounds to allow going to a secular court.

Building the Beis Hamikdash

Active or Passive?

From the beginning of modern Zionism (and possibly before, depending on what you call ‘modern’) there was debate in the Jewish world as to whether we must wait for redemption from exile, or whether we should play an active role. After the establishment of the State of Israel this debate seems less relevant, as very few would advocate for disbanding it.

However, with regard to the Beis Hamikdash this debate remains extremely relevant. Should we be doing whatever is necessary physically to facilitate its rebuilding, or is it enough to rely on our constant davening together with teshuva for the sins which caused its destruction in the first place?

Although the question is definitely similar to the one debated years ago in regard to the State of Israel, there is one major facet to that debate that is not relevant here. The main objection that some had to establishing the State, and still have to celebrating its establishment today, is the issue of collaboration with irreligious and anti-religious Jews. As there certainly are very few irreligious Jews interested in this, we naturally may have expected the proactive camp to be much larger here.

The reality is not like this, and we need to try to come to an informed decision as to whether this is correct from a Torah perspective. To do this we need to look at some of the reasons that have been given for this passive stance.

Is there a mitzvah?

One reason some have given is Rashi’s comment that the future Beis Hamikdash will descend from Heaven in fire.[1] What then is the point of us trying to build it ourselves?

This argument is flawed on two counts. Firstly, Rashi’s explanation is disputed by the Meiri,[2] and the Rambam says explicitly that the Mashiach will build the Beis Hamikdash.[3] Secondly, even from Rashi there is no proof that we are exempt from the mitzvah of building the Beis Hamikdash.[4]

According to all those who list the 613 mitzvos (Behag, R’ Saadiah Gaon[5], Rambam[6], Ra’avad[7], Ramban[8], Smag[9] and Sefer Hachinuch[10]) building the Beis Hamikdash is one of them. It is also undisputed that only mitzvos that apply for all generations are counted.[11] It seems improbable that Rashi would differ on this, and it certainly seems extremely problematic to exempt ourselves from something that so many consider to be a mitzvah without stronger proof.

Does the mitzvah apply now?

Some claim that there is a prerequisite to the mitzvah of building the Beis Hamikdash. The gemara tells us that the correct order is first to fulfil the mitzvah of appointing a king.[12]

Here too, they are wrong for two reasons. Firstly, although ideally we should indeed be appointing a king first, when this is not possible the mitzvah of building the Beish Hamikdash certainly applies. Not only is there no source that says that the order is an imperative, there are clear indications that this is not the case.

The second Beis Hamikdash was built approximately three-hundred years before the Chashmonaim set up their kingdom.[13] It is also explicit in the Yerushalmi that the future Beis Hamikdash will be built before the Davidic kingdom is re-established.[14] The suggestion that this was and will be based on an extraordinary ruling meant for the time only, is extremely difficult.

Chazal tell us that three nevi’im came out of the Babylonian exile, and their prophecies were needed to tell us about the altar and its place, that sacrifices could be brought before the Beis Hamikdash was rebuilt, and according to one view that the Torah should be written in Assyrian script.[15] There was no need for prophecy to allow the rebuilding of the Beis Hamikdash itself.

Secondly, even if the mitzvah of building the Beis Hamikdash does not apply yet, it is certainly meritorious to make all possible preparations for the time when it will apply. David Hamelech was told that he could not build the Beis Hamikdash,[16] but nevertheless dug the foundations.[17]

Physical danger

Another argument I have heard is that anything we do to upset our neighbours endangers human life, and this is sufficient reason to do nothing until the situation improves (presumably miraculously). As the question here is predominantly one of judgement and not of halacha I will be brief.

This issue extends further than to the Beis Hamikdash alone, but also to our control of the whole country. Simply put, in my mind it is clear that whenever we have been soft with those who are out to destroy us we have lost more lives, and the nature of these enemies is to run away when they are shown power. One example of this is M’aras Hamachpela, where we now have partial control thanks to the defiant efforts of R’ Levinger zt”l.[18] The security situation there is definitely far superior to what it once was.

What about tumah?

Practically, even if all were to accept my arguments so far, and even if the whole world supported rebuilding the Beis Hamkidash, the obstacle of tumah (ritual impurity) would not be easy to overcome entirely. Without the ashes of the parah adumah we have no way of escaping the tumah caused by contact with the dead.[19] However, there is much that can be done in the meantime.

The area which we may not enter due to this impurity is a total of 342 by 155 amos,[20] about 164 by 74 metres.[21] The sanctified area of Har Habayis (Temple Mount) which may be entered after immersing in a mikveh is 500 by 500 amos,[22] 240 by 240 metres. The dimensions of Har Habayis as we know it today are approximately (it is not perfectly rectangular)

Do we know exactly where all of these sections are? Not with absolute certainty. Although the Radbaz writes that the Kodesh Hakodashim is in the Dome of the Rock,[23] it is unclear where exactly this came from and to what extent it can be relied upon.[24]

However, from a combination of the description Chazal give of the area, and the geography we know, the tradition of the Radbaz is certainly not very far off. It is clear in Chazal that the Kodesh Hakodashim was at the highest part of the mountain,[25] and this corresponds nowadays to the Dome of the Rock area. Other archaeological evidence of the location of other parts of Har Habayis and surrounding landmarks also supports this.[26]

Those who would like to forbid all entry to Har Habayis place much stress on the fear that people will end up entering the forbidden areas. This concern is non-halachic as no such decree is found in Chazal,[27] but nevertheless should not be taken lightly. As with any public issue, the costs and benefits must be weighed up regularly. Most importantly, whether or not the decision made then was correct or not is irrelevant.

I purposely started this post by discussing the mitzvah to build the Beis Hamikdash because I believe this is the root of the issue here. If it is important enough to us to do all that is necessary to facilitate the rebuilding, we can find ways of avoiding this problem. Clear demarcation of the forbidden areas, together with clear information, would help a lot. We must also bear in mind that those who don’t care about halacha have done and will continue to go wherever they want, irrespective of whether we encourage or discourage entry to Har Habayis.

The most important thing

One thing all Torah-true Jews should agree to is that we must never lose our will to have the Beis Hamikdash rebuilt.

Unfortunately, during the last period of terrorist attacks in a certain (supposedly religious) publication appeared a letter, translated into Arabic, declaring that one sector of the community have no desire to change anything on Har Habyis. After protests over the implication that attacks on other parts of the community were justified, they apologised.

I fully accept this apology. I have no doubt that there was never any intention to encourage terrorism, and that the letter had no effect in this direction. What really worries me is the clearer message behind this letter, that when we daven constantly for the rebuilding of the Beis Hamikdash, we don’t really mean it.

Especially at this time of year, we need to ask ourselves if we genuinely want the Beis Hamikdash, or if at some level we are content with what we have and slightly afraid of the unknown.

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[1] Sukah 41a

[2] Ibid.

[3] Melachim 11:1. Although he says that these matters are not fundamentals of the religion and we won’t know for sure how they will happen until they happen, his basic assumption is clearly that the rebuilding of the Beis Hamikdash will be a natural process. In fact for followers of the Rambam’s general rationalist approach, this should be obvious. See also Drishas Tzion (R’ Tzvi Hersh Kalisher) in Ma’amar Kadishin, who rejects Rashi’s explanation and proves his point from the Yerushalmi.

[4] See Meiri there who seems to understand that Rashi meant just that there is a possibility of the Beis Hamikdash descending from heaven.

[5] Parsha 51. See also R’ Yerucham Fishel’s comment there, that all agree to count this as a mitzvah.

[6] Asei 20

[7] Who says that the Rambam should have added another mitzvah of building the altar.

[8] Who always says when he disagrees with the Rambam’s count, and here is silent.

[9] Asei 163

[10] Mitzvah 95. Admittedly he adds a precondition of the majority of the Jewish People living in Eretz Yisrael (which we haven’t got to yet).

[11] The Rambam’s third rule for counting mitzvos. The Ramban there says that this is obvious, and that although the Rambam thought that the Behag made a mistake about this, he misunderstood the Behag.

[12] Sanhedrin 20b

[13] See https://en.wikipedia.org/wiki/Second_Temple_period. Although we may differ slightly with the academic historical record, this point is also clear from a combination of Tanach and Chazal.

[14] Ma’aser Sheni 5:2. This is also the implication of the Bavli in Megilah 17b-18a, in explaining why the beracha of ‘Boneh Yerushalayim’ comes before ‘Es Tzemach David’ in Shmoneh Esreh.

[15] Zevachim 62a

[16] Shmuel II, perek 7

[17] Yalkut Shimoni Shmuel II, Remez 142.

[18] See http://www.israelnationalnews.com/Blogs/Message.aspx/7032#.V4qGvNQrI1g

[19] There may be a possibility to invoke the principle that’ tumah is pushed of for the tzibur’, but this is far from straightforward. As there is still a long way to go before this becomes relevant practically, I have chosen not to discuss this at length here.

[20] The combined measurements of the Heichal, Azara, Ezras Nashim and Cheil. See the mishnayos in the second perek of Midos and Kelim 1:8.

[21] Following R’ Chaim Noe. Although the area is larger according to the Chazon Ish, the permitted area is also larger and for the most part this would result in a clearer leniency.

[22] See Midos 2:1 and Kelim 1:8

[23] Tshuvos, 2:691

[24] Although those who rely on his tradition of the Jewish genealogy of the Ethiopian Beta Israel community (against scientific evidence), certainly should rely on this tradition (which is supported by archaeological evidence). See Yabia Omer part 8, Even Haezer siman 11.

[25] From the entrance at the east gate until the Kodesh Hakodashim there were several sets of stairs up, see Midos 2:3-5

[26] See for example this wikipedia article (in Hebrew). See also this diagram.

[27] See How does halacha work?

Ma'aser- religious income tax

Background

Out of all the donations that the Torah obligates a person to give, by far the largest one is ma’aser.[1] From all produce of the land a tenth must be given to the descendants of Levi. The reason for this obligation seems to be stated clearly in the Torah- it is “in return for their service that they perform, the service of the Ohel Mo’ed.”[2]

At a closer look, this payment seems disproportionate to the extreme. One tribe receive a tenth of all of the staple food, presumably more than enough to live off permanently (at that time the overwhelming majority of people worked in agriculture). This would be reasonable if they were in close to permanent employment, perhaps even if it were part-time. But already in the desert there were 8,580 levi’im of working age.[3] How could there possibly be a need for so many workers in the Mishkan?

Clearly the levi’im were not working permanently in the Mishkan, or later in the Beis Hamikdash. Chazal tell us that Moshe Rabbeinu instituted that the Levi’im should be divided into eight watches, Shmuel increased this to sixteen, and David Hamelech eventually made twenty-four watches.[4] Each watch worked for a week at a time, meaning that each Levi’s working time was about two weeks a year![5]

The reason for this is that the levi’im had another, no less important mission. Part of the beracha given to the tribe of Levi is:

יוֹרוּ מִשְׁפָּטֶיךָ לְיַעֲקֹב וְתוֹרָתְךָ לְיִשְׂרָאֵל יָשִׂימוּ קְטוֹרָה בְּאַפֶּךָ וְכָלִיל עַל מִזְבְּחֶךָ: (דברים לג, י)

“They shall teach Your laws to Ya’akov, and Your Torah to Yisrael. They shall place incense in front of You and burnt-offerings on Your altar.” (Devarim 33:10)

Chazal derive from this pasuk that the tribe of Levi was one of two tribes that produced successful halachic rulers.[6] The Rambam famously explains that in order to be free to perform these two crucial roles, the tribe of Levi did not receive a portion in Eretz Yisrael or in the spoils, nor were they involved in war.[7]

Why then did the Torah say that ma’aser is payment just for service performed in the Mishkan? I have not seen this question addressed elsewhere, but to me the answer is obvious. Hashem did not want the teaching of Torah to be a job. While the levi’im are compelled to serve in the Mikdash whether they like it or not,[8] their teaching role is one that they are expected to do of their own accord.

The hugely exaggerated wages that the levi’im receive for their work in the Sanctuary allowed for the preservation of Torah scholarship without degrading it. Teaching Torah is something that we are required to do without the expectation of payment.[9] But what then is to stop a Levi from shirking this responsibility, if his payment is not dependent on it?

The answer to this is also clear. Everyone is free to give his ma’aser to the Levi of his choice.[10] This created an incentive for the levi’im to show that they were genuinely deserving of ma’aser, and also limited resentment on the part of the farmers who had to give it.

Problems

This system works perfectly if people use it in the way it was intended. However, as with anything else, if it is regularly manipulated for personal gain society breaks down. Not everyone will necessarily choose who they give their ma’aser to in an appropriate manner, and some may decide not to give at all.

This is what happened in the times of the navi Malachi, who rebukes those who ‘steal from Hashem’ ma’aser and terumah.[11] Later, Yochanan the Kohen Gadol discovered that only terumah gedolah was separated by all, and he instituted that one who buys produce from an am ha’aretz (in this context anyone who has not proved his trustworthiness) must separate ma’aser out of concern that the seller did not separate.[12]

When deterioration like this occurs, everyone must take their share of responsibility. The levi’im should ask themselves whether they have done enough to earn the respect of the people and help them want to support their mission (and they also have the incentive to do so). The same Malachi also saw fit to penalise the levi’im for failing to return to Eretz Yisrael from Bavel, and instructed that ma’aser should be given to the kohanim instead.[13]

In our time

Nowadays all kosher certification includes an assurance that ma’aser has been separated whenever halacha requires it. Yet no levi’im are able to live off ma’aser, and there is ongoing dispute between the political parties over government support to Torah learning. How did this happen?

Two major factors here are technical. Firstly, staple grains in Israel are almost entirely imported. Secondly, even with grain that is grown here, in modern times the cost of labour means that the value of raw grain (from which ma'aser is taken from) is tiny compared to the cost of ready to eat food. There is little we can do about this. However the other reasons are halachic, and it is important for us to address them (after declaring my personal interest as a levi).

The Chazon Ish rules that today it is proper for ma’aser to be retained by the owner of the produce after separation, as giving it to the levi’im would cause an increase in those falsely asking to be called to the Torah as a levi.[14] This is relied on by many companies and kashrus authorities, although unfortunately due to a lack of transparency it is often not easy to find out which ones.

This novel idea of the Chazon Ish is very hard to understand, as one who keeps ma’aser for himself is stealing from the levi’im. Without a Sanhedrin we do not have the power to make a new enactment where Chazal did not.[15] This leniency is found only in the Chazon Ish, and many other poskim clearly state that ma’aser must still be given to a levi.[16]

From what I understand, even the hechsherim that are particular about giving ma’aser to levi’im do not do so in entirety. Already in the times of the Mishna, for some it was inconvenient to constantly find levi’im to hand over ma’aser to. The solution to this was simple, one could ‘prepay’ by lending money to a levi and taking the ma’aser for oneself in payment of the debt.[17] For the levi’im it also may have been more conveninent to receive money instead of grain.

The catch is the calculation of how much ma’aser can be covered by the amount of money lent. We are informed that this calculation is based on the ‘cheap rate’, ie that even if the price of grain goes up the deduction from the loan is according to the price at the time the loan was given. Although the current value of the grain is more than the money lent, this does not violate the prohibition of taking interest.[18]

Tosfos take this a step further, and say that even if the levi agrees to calculate the payment at a price well below the ‘cheap rate’, there is no interest problem. Based on this Rav Kook takes it as a given that only a small amount of money can be lent to the levi for a large amount of ma’aser.[19]

The truth is that it is clear that all Tosfos said was that there is no interest problem if this calculation is agreed upon. There is no justification for forcing the levi’im to accept such an arrangement. Elsewhere Rav Kook himself says that the reason we rely on this is because otherwise the ability of the Jewish community at the time to survive would be in doubt.[20]

I have little complaint with the kashrus authorities that rely on this, as they are merely facilitating a limited form of giving ma’aser instead of giving none. If there was demand from the community as a whole for the complete fulfilment of this mitzvah (along with the willingness to pay extra), it would be done.[21] It is our responsibility to educate and increase understanding of the issues involved, until this happens. And as in the time of Malachi, it is the responsibility of the levi’im to earn their ma’aser.

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[1] Throughout this article I am referring to ma’aser rishon. The additional tithe that must be separated in most years is eaten by the owner as ma’aser sheni, either in a pure state in Yerushalayim or nowadays after redemption (at virtually no cost). Only in the third and sixth years of the shmita cycle ma’aser ani must be given to the poor.

[2] Bamidbar 18:21.

[3] Bamidbar 4:48

[4] Ta’anis 27a. Presumably the changes were due to gradual population increase.

[5] In fact it was less, as each watch was divided into families and individuals were assigned to each day of the week. See Rambam Klei Hamikdash 3:9.

[6] Yoma 26a. The second tribe was Yissachar.

[7] Shmita v’Yovel 13:12. See also Moreh Nevuchim 3:39 where the Rambam explicitly links the mitzvah of ma’aser to the Torah learning of the levi’im.

[8] Rambam Klei Hamikdash 3:1

[9] See Nedarim 37a.

[10] See Rashi to Bamidbar 5:10

[11] Malachi 2:8

[12] Sotah 48a

[13] Yevamos 86b. See Megila 15a that Malachi was another name of Ezra.

[14] Shevi’is 5:12. It is worth noting that the Chazon Ish did not believe in other means of receiving money for Torah learning, see Brown’s biography of the Chazon Ish pages 55-56.

[15] See How does halacha work?

[16] See for example Chochmas Adam, Sha’arei Tzedek Mitzvot Ha’aretz chapter 10.

[17] Gitin 30a

[18] Ibid, with Rashi. Why this is not considered interest is beyond the scope of this article.

[19] Mishpat Cohen siman 36. This practice is already mentioned in the Yad Efrayim (written by R’ Efrayim Zalman Margolies, 1762-1828) in Yoreh Deah 61:10, and criticised strongly.

[20] Igrot Hariya 1:119

[21] Ma’aser Ani is in fact given entirely to the poor, even though a similar trick could be used. This is mainly because there is no view that condones retaining Ma’aser Ani entirely (and therefore less pressure to find other leniencies), but perhaps also because the idea of giving to the poor is more widely understood.