On today’s daf, we learn the following:
If one steals another’s untithed produce and eats it, one must pay them the value of their untithed produce. This is the statement of Rabbi Yehuda HaNasi.
Rabbi Yosei, son of Rabbi Yehuda, says: One pays them only the value of the non-sacred produce it contained.
Untithed produce is produce that has not yet had a portion separated out for consumption by a priest. The question here seems to be whether the portion of the produce that will eventually belong to the priest still belongs to the original owner or not. If it does, then as Rabbi Yehuda HaNasi says, the owner ought to be compensated for it if it is stolen. If not, and that produce already belongs to the priest even though it has not yet been set aside, then as Rabbi Yosei says, the owner should be compensated only for what he would have retained after tithing is complete.
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The Gemara has cited this teaching to help resolve an apparent inconsistency in the mishnah on yesterday’s daf. There we encountered two teachings, one that implied the ability to direct tithes to a particular priest has value and one that implied that it doesn’t. Perhaps, the Gemara suggests, the former teaching is in accordance with Rabbi Yehuda HaNasi’s opinion and the latter is in accordance with Rabbi Yosei. How so?
The Gemara explains that if the ability to designate tithes for a particular priest has value, then crops that would have been tithed are still worth something to the owner. Therefore, if they are stolen, the owner has suffered a loss, even if those crops would have been given away eventually. But if directing tithes to a particular priest has no value, then a thief does not have to make restitution for the portion of the crops that would have been tithed because it does not represent a financial loss.
Great, except the Gemara quickly points out:
Everyone (agrees) the benefit of discretion does not have monetary value.
So much for that theory. The debate between Rabbi Yehuda HaNasi and Rabbi Yosei must therefore be about something else, since both agree that the right to direct tithes to a particular priest does not have value. So the Gemara tries again:
This is the reasoning of Rabbi Yehuda HaNasi: The sages penalized the thief so that they would not steal. And Rabbi Yosei, son of Rabbi Yehuda, holds that the sages penalized the owner of the produce so that they would not delay with untithed produce.
Rabbi Yehuda is interested in disincentivizing theft, and so he includes the value of the part of the crops that would be tithed in the penalty. Rabbi Yosei wants to incentivize tithing produce as soon as possible, so he penalizes the owner by awarding them only the value of the crops that would remain after tithing.
While this discussion does not reach a conclusion about who owns the tithes before they are separated or how much a thief has to pay for restitution, it does clarify what Rabbi Yehuda and Rabbi Yosei were arguing about and it leaves us with some important advice — tithe early and don’t steal.
Read all of Nedarim 84 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on January 17th, 2023. If you are interested in receiving the newsletter, sign up here.
