A Dutch Treat
‘Money That Has No Claimants’
Rav Chisda on our daf (131b) states that a Yisrael who destroys or eats matnos kehunah (priestly gifts) before giving them to a kohen is exempt from compensating the priestly tribe for their loss. Why? According to one of the explanations in the Gemara, the priestly gifts still in a Yisrael’s possession have the legal status of “mammon she’ein lo tov’im – money that has no claimants.”
Rashi (s.v. “She’ein lo tov’im”) explains that the priestly gifts are not the property of any individual kohen; a Yisrael can say to any kohen, “I am going to give the gift to another kohen, not you.” Therefore, if he damages or eats one of them, he is under no obligation to make restitution.
Question Of An Issur
There is a dispute over whether this rule exempts a person from having violated the issur of damaging matnos kehunah. Tosafos (s.v. “Ve’eiba’is eima”) that even though beis din cannot exact payment from him, he must still answer to the Divine court. He thus is duty-bound to make restitution to a kohen (of his choice). Ran (to our daf) maintains that no issur was violated and, therefore, there is no obligation to make restitution to a kohen.
The Gemara (132a) cites a baraisa – “If a government official seized a Jew’s untithed grain (tevel) as payment for an outstanding debt, the Jew is obligated to reimburse a kohen the ma’aser [from other grain – Rashi]. The Gemara wonders why. Since matnos kehunah are mammon she’ein lahem tov’im, there shouldn’t be an obligation to reimburse a kohen.
The Gemara answers that since the Jew profited from the untithed grain – in that its seizure satisfied an outstanding debt – he must replace the seized grain with other grain.
May Have Fasted
Tosafos (s.v. “sha’ani ha’sam…”) asks: According to the logic of this baraisa, why does Rav Chisda exempt a Jew who ate matnos kehunah from reimbursing the kohanim since he, too, has profited in that he ate it in place of other food in his possession. Tosafos answers that the case is not comparable as we may argue that he could have fasted and not eaten any other food.
The Terumas Hadeshen (siman 317 and cited by the Rema, Choshen Mishpat 246:17) rules that if one said to his friend, “Come join me for a meal,” he may demand payment for the food. The Maharit (Even Ha’ezer 21) asks in light of Tosafos’s answer: Why not consider the possibility that the friend might have fasted?
The Ketzos HaChoshen (Choshen Mishpat 246:2) differentiates between the two cases. If a person ate matnos kehunah, which is money that has no claimants, we may argue that he might just as well have fasted. But if he sat down with a friend and ate his food, he derived enjoyment and, as such, whether he could or could not have fasted is irrelevant. He willingly joined in the repast. One must discern an invitation from a Dutch treat.