Sometimes one can glean the most interesting information from the most unexpected places.
"Our Rabbis taught: [one who] gathered a vegetable on erev Rosh Hashanah up until the sun has set, and he returned and gathered when the sun set--one may not give the terumah and ma'aser tithes from one [gathering] to the other, as we do not give tithes from the new [year] for the old, nor from the old to the new" (Rosh Hashanah 12a-b).
We associate Rosh Hashanah with themes such as G-d's kingship, judgment, repentance, and prayers for a sweet year. Yet, for the farmer living in Israel, Rosh Hashanah had a more "mundane" meaning. "On the first of Tishrei, it is the New Year for years,shmitta, yovel, plantings, and vegetables" (Rosh Hashanah 2a). The fiscal year of the farmer ended with the end of the old year, on the last day of Elul. In calculating the proper amounts of tithes he was to give, he had to accurately count his produce for each given year. He would then give 2% of that total to the kohen as terumah and 10% of the remainder, i.e., 9.8%, to the Levi as ma'aser rishon, the first tithe. He would then take 10% of the remainder to be eaten (or shared with others) in Jerusalem[1]. It thus was important to separate that which was harvested a moment before sunset on the last day of the year from that separated a moment later at the beginning of the new year.
If the New Year marked either year three or six of the seven-yearshmitta cycle, instead of separating ma'aser sheni, the farmer was to give ma'aser ani, a special 10% tithe to the poor. Thus, the Gemara continues, "and if it was the second year going into the third, the second [year] is ma'aser rishon and ma'aser sheni, the third year ma'aser rishon and ma'aser ani" (ibid 12b).
In learning this Gemara, it seemed that the Gemara was stressing how one minute can make all the difference. For example, a tax return postmarked at 11:59 pm on April 30 (I do write with a Canadian bias) is timely, whereas one postmarked at 12:01 am on May 1 may be subject to penalties (and many post offices in Canada are open until midnight on April 30). Pick a vegetable at the last minute of the year it is tithed one way; a minute later, it is tithed differently. But of course, the Gemara knew this was only a theoretical possibility--after all, the New Year for tithing begins on Rosh Hashanah itself, when working the fields is strictly prohibited. The example used was designed more for its general message, and even a bit of rhetorical flourish.
Yet this is not how Tosafot (12b, s.v. mishetavo) learned the Gemara. Their four-word comment is most striking: "b'Yerushalmi muki lah b'nochri; in the Jerusalem Talmud, they explained we are dealing with a non-Jew". Tosafot (or rather the Jerusalem Talmud) understood the Gemara literally. As a Jew is forbidden to pick vegetables on Rosh Hashanah, a non-Jew must have picked the vegetables in question. Yet this does not really solve the problem. After all, a Jew is forbidden to ask a non-Jew to do work on his behalf on Shabbat or Yom Tov. Nor is one allowed to benefit from work done by a non-Jew who did the work without being asked[2].
Unfortunately, the laws of amirah le'akum, having a non-Jew work for us on Shabbat or Yom Tov, are often observed more in the breach, and it seems that many Jews in the Talmudic period were--like today--a bit lax in this area[3].
Rav Yakov Emden, in his glosses in the back of Talmud, notes two other possibilities: that the vegetables were picked by a minor, or were picked by someone accidentally. The first possibility is little different from the case of a non-Jew, as one may also not enlist minor children to do forbidden work on Shabbat. The second possibility, b'shogeg, is a most interesting one. Shogeg may mean that he did not know it is prohibited to pick vegetables on Rosh Hashanah, or that he did not even know it was Rosh Hashanah. Both possibilities are striking. Did Jews living in Israel in an agricultural society really not know that farming was forbidden on Yom Tov? Was it possible someone did not know the date of Rosh Hashanah? It seems that the simple answer is yes and yes[4]. Ignorance and apathy about Judaism are not new phenomenon. For every Rabbi Akiva, who at age 40 became interested in Judaism, there were many others who did not[5].
Rav Yaakov Emden then suggests a third possibility. "And even if done intentionally, what is it? (Or to use contemporary language, who cares?) Nevertheless, if he did it [purposely violated Rosh Hashanah], he is still obligated in ma'aser".
Since time immemorial, Jews have picked and chosen which mitzvot they will fulfill and which they will ignore. For many Jews, the "religious strictures" of the Torah (sadly) have little resonance and are willfully ignored. They will work when they want to work, Rosh Hashanah or not. But many of these same Jews are wonderful people, looking for opportunities to help others. It is these aspects of the Torah that (knowingly or not) speak to them. The same Jew who is busy picking vegetables on Rosh Hashanah might well ensure that he shares his bounty with the Kohen, Levi, and the poor.
[1] If it was burdensome to "shlep" so much produce to Jerusalem, the farmer could add a 25% premium to the value of the ma'aser sheni and spend that money in Jerusalem.
[2] If one accepts the view that the land retains its holiness even if owned by a non-Jew (a view those who rely on the selling of the land during shmitta reject), we could be dealing with a case of non-Jewish-owned land. While the non-Jew may work on "Rosh Hashanah", a Jew who purchases the produce from him would still be obligated in tithing. But such an explanation is most stretched.
[3] The laws of amirah le'akum can be complex, and while it is possible to construct a scenario in which the non-Jew is allowed to harvest vegetables on Rosh Hashanah, the formulation of the Gemara remains striking.
[4] The Mishnah (Bikurim 3:7) relates that the Sages instituted the custom that the priest would ask the farmer bringing the Bikurim fruit to repeat the required biblical reading word for word, so as not to embarrass those who could not read Hebrew. If the religious farmers living in Israel were illiterate, one can only imagine the ignorance of the non-religious populace.
[5] Mass media have ensured that almost all--even non-Jews--know when Rosh Hashanah and Yom Kippur are. Yet ask your Jewish colleagues at work when Shavuot is, and you will readily understand what used to be the case even with Rosh Hashanah.
