Tractates Sanhedrin and Makkot have dealt with criminal and ritual transgressions that incur significant punishment, including flogging, karet (usually translated as excision, this refers to death at the hands of heaven) and even execution. As a general rule, these are not monetary transgressions — like those we studied in Bava Kamma, Bava Metzia and Bava Batra — for which the remedy is usually payment rather than punishment. But today’s daf complicates that dichotomy.
To understand today’s daf, one must be familiar with the ancient Jewish system of tithing, which is both a ritual and a monetary requirement. According to Torah law, a person cannot eat produce until required tithes are separated from it. Here’s a brief overview of how that was done: From any given crop, several levels of tithes are removed for different populations. First, one separates terumah gedolah (lit. “the great terumah”) from their produce, which is given as a gift to the priests; while there is not an absolute set amount for this tithe, the rabbis recommend 1/50th. Terumah has a ritual sanctity and can only be eaten by priests, and by them only in a state of purity. From the remaining produce, one separates a tenth as first tithe (ma’aser rishon) which goes to the Levites, who own no ancestral land. This tithe is a monetary obligation, but has no special ritual status. (The Levites, for their part, also donate to the priests by separating terumat ma’aser from their portion of the first tithe.) After terumah and ma’aser have been designated, the next layer of giving depends on the year of the sabbatical cycle. In first, second, fourth and fifth sabbatical years, people next separate out a tenth of the remaining produce for what is known as the second tithe (ma’aser sheni) which is brought to Jerusalem and eaten there as a ritual requirement. In the third and sixth years of the sabbatical cycle, people separate out what is known as the third tithe or “poor person’s tithe” (ma’aser shlishi or ma’aser ani) which is then given to the poor. Any produce from which required tithes have not been separated is called tevel and it may not be consumed until it is properly tithed.
Now let’s jump into the daf. The mishnah on Makkot 13a listed a lengthy set of biblical prohibitions for which one is flogged, including some which also bear the more severe punishment of karet. Some of the prohibitions listed were the consumption of untithed produce and or the consumption of ma’aser rishon from which terumah had not been separated. On today’s daf, Rav adds a novel element:
Rav says: If one ate untithed produce from which poor man’s tithe was not separated, he is flogged.
Even if produce has had its terumah and first tithe removed, says Rav, one can become liable for flogging if one consumed that produce before removing the third tithe, the poor person’s tithe. Rashi explains why Rav’s comment is unprecedented: Most of the prohibitions listed in the mishnah on 13a involve ritual or criminal violations. But now, for a “mere” monetary violation of failing to separate tithes from the poor, Rav says a person is still deserving of lashes.The Gemara goes on to cite the source of Rav’s position:
In accordance with whose opinion is this? … it is taught in a beraita that Rabbi Yosei says: One might have thought that one is liable for eating only untithed produce from which no gifts were taken at all; but if terumah was taken from the produce, but first tithe was not taken from it, or if the first tithe was separated but not second tithe, or even if only the poor man’s tithe was not separated, from where is it derived that one is liable? The verse states: “You may not eat within your gates the tithe of your grain or of your wine or of your oil,” (Deuteronomy 12:17) and there it states: “And you shall give to the Levite, to the convert, to the orphan, and to the widow, and they shall eat within your gates and be satisfied.” (Deuteronomy 26:12) Just as there, with regard to the phrase “and they shall eat within your gates,” it is referring to poor man’s tithe, here too, “you may not eat within your gates” is referring to produce in which there is poor man’s tithe, and the Merciful One states a prohibition: You may not eat it.
Using the interpretive technique of gezerah shavah, the beraita points out similar phrasing in the verses describing second tithe, which has ritual status, and those describing tithes owed to the Levites and the poor, which are monetary obligations. Conclusion: Since there is a prohibition on incorrectly consuming the former, so too there is a prohibition on consuming the latter.
This is a fascinating example in which monetary law is elevated to a similar level of severity as ritual law. The rules of tithes are complex, as obligations and prohibitions of both monetary and ritual matters are quite literally all mixed up within the same subject. Rav’s halakhah reflects that complexity: Sometimes different kinds of wrongdoing cannot easily be separated.
Read all of Makkot 16 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on April 16, 2025. If you are interested in receiving the newsletter, sign up here.
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