הֲרֵי זֶה אוֹכֵל וּפָטוּר מִן הַמַּעֲשֵׂר. ״עַל מְנָת שֶׁאוֹכֵל אֲנִי וּבְנִי״, אוֹ ״שֶׁיֹּאכַל בְּנִי בִּשְׂכָרִי״ – הוּא אוֹכֵל וּפָטוּר, וּבְנוֹ אוֹכֵל וְחַיָּיב.
this laborer may eat and is exempt from separating tithe. Since the Torah granted him permission to eat, he may do so while he is working without separating tithes, as is the case with regard to gifts due to the poor. But if the laborer stipulated: On the condition that I and my sons may eat, or that my son may eat for my wages, he himself may eat and is exempt from separating tithes, as he is permitted to eat by Torah law, and his son may eat but is obligated to separate tithes.
וְאִי אָמְרַתְּ מִשֶּׁלּוֹ הוּא אוֹכֵל, בְּנוֹ אַמַּאי חַיָּיב? אָמַר רָבִינָא: מִשּׁוּם דְּמִיחֲזֵי כְּמִקָּח.
And if you say he eats from his own property, why is his son obligated? A son may eat from his father’s table without rendering the food subject to tithes. Ravina said: The reason is because it looks like a sale. Although the produce belongs to the laborer by Torah law, when he makes a deal involving his son it has the appearance of a transaction. Therefore, he must separate tithes to avoid any misunderstanding on the part of observers.
תָּא שְׁמַע: הַשּׂוֹכֵר אֶת הַפּוֹעֵל לַעֲשׂוֹת בְּנֶטַע רְבָעִי שֶׁלּוֹ – הֲרֵי אֵלּוּ לֹא יֹאכֵלוּ. וְאִם לֹא הוֹדִיעָם – פּוֹדֶה וּמַאֲכִילָן.
The Gemara cites yet another relevant source: Come and hear a proof from a mishna (93a): In the case of one who hires a laborer to perform labor with his fourth-year produce, such laborers may not eat the fruit, as all fruit of the fourth year of a tree must be taken and consumed in Jerusalem. And if he did not inform them beforehand that they were working with fourth-year produce, they are considered to have been hired under false pretenses. Consequently, he must redeem the fruit and feed them.
וְאִי אָמְרַתְּ מִשֶּׁל שָׁמַיִם הוּא אוֹכֵל – אַמַּאי פּוֹדֶה וּמַאֲכִילָן? אִיסּוּרָא לָא זַכִּי לְהוּ רַחֲמָנָא! הָתָם מִשּׁוּם דְּמִיחֲזֵי כְּמִקָּח טָעוּת.
And if you say that the laborer eats from the property of Heaven, why must the owner redeem the fruit and feed them? The Merciful One certainly did not entitle them to transgress a prohibition. Even if by Torah law the laborer is granted a personal right to eat, this applies only to permitted food. The Gemara explains: There, the reason is because it looks like a mistaken transaction, as they accepted employment under the assumption that they would be permitted to eat the fruit. He is therefore obligated to compensate them.
אֵימָא סֵיפָא: נִתְפָּרְסוּ עִגּוּלָיו, נִתְפַּתְּחוּ חָבִיּוֹתָיו – הֲרֵי אֵלּוּ לֹא יֹאכֵלוּ, וְאִם לֹא הוֹדִיעָן – מְעַשֵּׂר וּמַאֲכִילָן. וְאִי אָמְרַתְּ מִשֶּׁל שָׁמַיִם הוּא אוֹכֵל, אַמַּאי מְעַשֵּׂר וּמַאֲכִילָן? אִיסּוּרָא לָא זַכִּי לְהוּ רַחֲמָנָא!
The Gemara suggests another proof: But now state the latter clause of that same mishna: If his cakes, in which he had earlier preserved his figs, broke apart and crumbled, so that they must be preserved once again, or if his barrels of wine opened and he hired laborers to reseal them, these laborers may not eat. The reason is that the figs and wine were already subject to tithes, from which point a laborer may not eat them. And if the owner did not inform them that it is prohibited for them to consume the food, he must tithe the food and feed them. But if you say he eats from the property of Heaven, why must he tithe the food and feed them? The Merciful One certainly did not entitle them to transgress a prohibition.
וְכִי תֵּימָא: הָכָא נָמֵי מִשּׁוּם דְּמִיחֲזֵי כְּמִקָּח טָעוּת. בִּשְׁלָמָא נִתְפָּרְסוּ עִגּוּלָיו – מִיחֲזֵי כְּמִקָּח טָעוּת. אֶלָּא נִתְפַּתְּחוּ חָבִיּוֹתָיו, מַאי מִקָּח טָעוּת אִיכָּא? מִידָּע יָדַע דְּאִיטְּבִיל לְהוּ לְמַעֲשֵׂר!
And if you would say: Here too, is it because it looks like a mistaken transaction, that explanation is not tenable. Granted, in the case where his cakes broke apart, this does look like a mistaken transaction, as the laborers were unaware that the figs had been preserved once already, and they mistakenly thought that the fruit had not yet reached the stage at which it would become subject to tithes. But with regard to the other case, when his barrels opened, what mistaken transaction is there here? They certainly know that the wine had already been rendered untithed produce with regard to tithes, as wine is subject to tithes as soon as it has been collected into the pit alongside the winepress.
אָמַר רַב שֵׁשֶׁת: שֶׁנִּתְפַּתְּחוּ חָבִיּוֹתָיו לַבּוֹר. וְהָתַנְיָא: יַיִן מִשֶּׁיֵּרֵד לַבּוֹר!
Rav Sheshet said: This is referring to a case where his barrels opened in such a manner that the wine once again fell into the pit from which it came. The laborers therefore assumed that the owner was not yet obligated to set aside tithes. The Gemara raises a difficulty against this explanation: But isn’t it taught in a baraita that wine is immediately subject to tithes from when it descends into the pit?
כְּרַבִּי עֲקִיבָא דְּאָמַר מִשֶּׁיְּקַפֶּה, דַּאֲמַרוּ לֵיהּ: לָא הֲוָה יָדְעִינַן. וְנֵימָא לְהוּ: אִיבְּעִי לְכוּ אַסּוֹקֵי אַדַּעְתַּיְיכוּ דִּלְמָא מְקַפֶּה! בְּאַתְרָא דְּהָהוּא גַּבְרָא דְּנָגֵיד אִיהוּ מְקַפֶּה!
The Gemara answers: This baraita is in accordance with the opinion of Rabbi Akiva, who says that wine is subject to tithes only from when one starts to remove the seeds and the waste floats to the top, which occurs after the wine has already descended into the pit. The reason for this halakha is that the laborers can say to him: We did not know that the wine had already been removed from the pit. The Gemara asks: But let us say to them: It should have entered your minds that perhaps its waste had already floated. The Gemara responds: The ruling of the mishna is stated with regard to a place where that same man who pulls the wine from the pit is also the one who floats its waste. Consequently, it was reasonable for the laborers to assume that they had been hired to perform both tasks.
וְהַשְׁתָּא דְּתָנֵי רַב זְבִיד בִּדְבֵי רַבִּי הוֹשַׁעְיָא: יַיִן מִשֶּׁיֵּרֵד לַבּוֹר וִיקַפֶּה, וְרַבִּי עֲקִיבָא אוֹמֵר: מִשֶּׁיְּשַׁלֶּה בֶּחָבִיּוֹת. אֲפִילּוּ תֵּימָא שֶׁלֹּא נִתְפַּתְּחוּ חָבִיּוֹתָיו לַבּוֹר, דַּאֲמַרוּ לֵיהּ: לָא הֲוָה יָדְעִינַן דִּמְשַׁלֵּי.
The Gemara adds: And one can reach a different conclusion now that Rav Zevid has taught the following version of the above dispute, heard from the school of Rabbi Hoshaya: Wine is subject to tithes from when it descends into the pit and its waste floats. And Rabbi Akiva says: It is subject to tithes from when he drains the waste from the barrels. They would pour all of the wine into a barrel, before draining and removing the waste after fermentation. With this in mind, you can even say that the barrels were not opened into the pit, but simply opened up, as the laborers can say to him: We did not know that he had already drained the waste.
וְנֵימָא לְהוּ: אִיבְּעִי לְכוּ אַסּוֹקֵי אַדַּעְתַּיְיכוּ דִּלְמָא מְשַׁלֵּי! בְּאַתְרָא דְּהָהוּא דְּשָׁרֵיק הָהוּא מְשַׁלֵּי.
The Gemara poses a question: But let us say to them: It should have entered your minds that perhaps its waste had already been drained. The Gemara answers: This is referring to a place where that same man who plugs the barrel with a stopper is also the one who drains its waste, and therefore they assumed they had been hired to perform both tasks.
תָּא שְׁמַע: קוֹצֵץ אָדָם עַל יְדֵי עַצְמוֹ, עַל יְדֵי בְּנוֹ וּבִתּוֹ הַגְּדוֹלִים, עַל יְדֵי עַבְדּוֹ וְשִׁפְחָתוֹ הַגְּדוֹלִים, וְעַל יְדֵי אִשְׁתּוֹ – מִפְּנֵי שֶׁיֵּשׁ בָּהֶן דַּעַת. אֲבָל אֵינוֹ קוֹצֵץ לֹא עַל יְדֵי בְּנוֹ וּבִתּוֹ הַקְּטַנִּים, וְלֹא עַל יְדֵי עַבְדּוֹ וְשִׁפְחָתוֹ הַקְּטַנִּים, וְלֹא עַל יְדֵי בְּהֶמְתּוֹ – מִפְּנֵי שֶׁאֵין בָּהֶן דַּעַת.
The Gemara suggests: Come and hear a proof from a mishna (93a): A man can stipulate on his own behalf that he receive a certain increase in his wages instead of eating the produce with which he works, and similarly, he can stipulate this on behalf of his adult son or daughter, on behalf of his adult Canaanite slave or Canaanite maidservant, or on behalf of his wife, with their agreement, because they have the basic level of mental competence, i.e., they are legally competent and can therefore waive their rights. But he cannot stipulate this on behalf of his minor son or daughter, nor on behalf of his minor Canaanite slave or Canaanite maidservant, nor on behalf of his animal, as they do not have the basic level of mental competence.
קָא סָלְקָא דַּעְתָּךְ בְּמַעֲלֶה לָהֶן מְזוֹנוֹת. אִי אָמְרַתְּ בִּשְׁלָמָא מִשֶּׁל שָׁמַיִם הוּא אוֹכֵל – מִשּׁוּם הָכִי אֵינוֹ קוֹצֵץ, אֶלָּא אִי אָמְרַתְּ מִשֶּׁלּוֹ הוּא אוֹכֵל – קְטַנִּים נָמֵי נִקּוֹץ לְהוּ!
The Gemara analyzes this mishna: It might enter your mind that all these examples involve cases where the father, master, or husband, depending on the case, provides his children, slaves, or wife with food, and they assist him in his work. Granted, if you say that a laborer eats from the property of Heaven, it is due to that reason that he may not stipulate this on behalf of minors, as the Torah also entitled minors themselves to eat when they work, and they cannot waive their rights. But if you say that a laborer eats from his own property, and the food he consumes is a monetary obligation, let him be allowed to stipulate on behalf of minors as well. Since in a case where a father provides sustenance for his children he keeps the profits of their labor, he should be entitled to stipulate this concerning their payment.
הָכָא בְּמַאי עָסְקִינַן – בְּשֶׁאֵין מַעֲלֶה לָהֶן מְזוֹנוֹת. אִי הָכִי, גְּדוֹלִים נָמֵי! גְּדוֹלִים יָדְעִי וְקָא מָחֲלִי.
The Gemara answers: With what are we dealing here? We are dealing with a situation in which the father does not provide his children with food. Therefore, he does not keep the profits of their labor and has no right to make stipulations concerning the terms of their employment. The Gemara raises a difficulty: If so, in the case of adult children and slaves too, the father or master should not be able to stipulate in this manner. Since he does not provide them with food, why should he be able to waive their rights? The Gemara responds: Adults are aware of the stipulation and forgive their rights to the food. He can stipulate this only with their agreement.
וְהָא תָּנֵא רַבִּי הוֹשַׁעְיָא: קוֹצֵץ אָדָם עַל יְדֵי עַצְמוֹ וְעַל יְדֵי אִשְׁתּוֹ, אֲבָל לֹא עַל יְדֵי בְּהֶמְתּוֹ. וְעַל יְדֵי בְּנוֹ וּבִתּוֹ הַגְּדוֹלִים, אֲבָל לֹא עַל יְדֵי בְּנוֹ וּבִתּוֹ הַקְּטַנִּים. וְקוֹצֵץ עַל יְדֵי עַבְדּוֹ וְשִׁפְחָתוֹ הַכְּנַעֲנִים, בֵּין גְּדוֹלִים וּבֵין קְטַנִּים.
The Gemara asks: But didn’t Rabbi Hoshaya teach in a baraita: A person can stipulate on his own behalf that he receive a certain increase in his wages instead of eating the produce with which he works, and on his wife’s behalf, but not on behalf of his animal; and he can stipulate this on behalf of his adult son or daughter, but not on behalf of his minor son or daughter; and he can stipulate this on behalf of his Canaanite slave or Canaanite maidservant, whether they are adults or minors. This contradicts the ruling of the previous mishna that one cannot stipulate this on behalf of his minor slave.
מַאי לָאו, אִידֵּי וְאִידֵּי בְּמַעֲלֶה לָהֶן מְזוֹנוֹת, וּבְהָא קָא מִיפַּלְגִי: דְּמָר סָבַר מִשֶּׁלּוֹ הוּא אוֹכֵל, וּמָר סָבַר מִשֶּׁל שָׁמַיִם הוּא אוֹכֵל?! לָא, דְּכוּלֵּי עָלְמָא מִשֶּׁלּוֹ הוּא אוֹכֵל, וְלָא קַשְׁיָא: כָּאן – בְּשֶׁאֵין מַעֲלֶה לָהֶן מְזוֹנוֹת, וּבָרַיְיתָא – בְּמַעֲלֶה לָהֶן מְזוֹנוֹת.
What, is it not correct to say that this and that, both sources, are referring to cases where the master provides the slaves with food, and they disagree with regard to this: That one Sage, the tanna of the mishna, holds that a laborer eats from his own property, and therefore he can relinquish the rights of his minor slave, and one Sage, of the baraita, holds that a laborer eats from the property of Heaven, and therefore he cannot relinquish the rights of his minor slave? The Gemara refutes this suggestion: No; everyone agrees that a laborer eats from his own property, and it is not difficult. Here, in the mishna, it is referring to a case where he does not provide the slaves with food, as stated previously, and the baraita is referring to a case where he provides them with food.
בְּמַאי אוֹקֵימְתַּהּ – בְּמַעֲלֶה לָהֶן מְזוֹנוֹת? אִי הָכִי קְטַנִּים נָמֵי נִקּוֹץ לְהוּ! צַעֲרַיְיהוּ דִּבְנוֹ וּבִתּוֹ הַקְּטַנִּים לָא זַכִּי לֵיהּ רַחֲמָנָא.
The Gemara asks: To what case did you interpret the baraita to be referring? Did you interpret it as referring to a case where he provides the slaves with food? If so, let him also be allowed to stipulate on behalf of his minor children that they receive no food, as presumably the baraita is referring to a case where he provides his minor children with food. The Gemara answers: The Merciful One does not entitle him to waive the suffering of his minor son and daughter. His young children will suffer if they are prevented from eating the food they see before them.
בְּמַאי אוֹקֵימְתָּא לְמַתְנִיתִין – בְּשֶׁאֵין מַעֲלֶה לָהֶן מְזוֹנוֹת,
The Gemara further asks: To what case did you interpret the baraita to be referring? Did you interpret it as referring to a case where he does not provide the slaves with food?