Shabbat Parashat Bamidbar| 5768

(from the works of Hagaon Harav Shaul Yisraeli zt”l)

Non-Jewish Ownership of Eretz Yisrael – part II

(from Eretz Hemdah I, 5.2)

[We saw last time that there is a machloket among the Tannaim on whether a non-Jew has a kinyan (ability to acquire) Eretz Yisrael in regard to removing the kedusha that enables the obligation of terumot and ma’asrot to take effect.]

The Yerushalmi says that R. Meir, who says that a non-Jew does not have kinyan regarding ma’asrot, admits in regard to the eating of fruit. The Kesef Mishneh explains this statement as follows. “R. Meir said that there is no kinyan only in regard to a case where a Jew planted the field as a sharecropper or in a rental situation, that it remains in its sanctity, unlike the status of Suria. However, if the non-Jew planted and processed, everyone agrees that there is kinyan, for even if he did not acquire the land, he anyway acquires the fruit.”

Some understand the Kesef Mishneh to be saying that the entire machloket about kinyan is regarding if a Jew bought back the field. If one holds that there is kinyan, then it is like a private conquering of the Land, which does not instate kedusha, whereas if one holds that there is not kinyan, the kedusha returns. According to this approach, as long as the field is under the non-Jew’s ownership, all agree that its kedusha is removed.

However, this does not appear to be a correct understanding of the Kesef Mishneh’s opinion. After all, he based himself on the Yerushalmi that said that R. Meir agreed regarding the eating the fruit. Therefore, it is difficult to say that this extends to the essence of the kedusha of the land. Also, from the fact that he talks about a case of a Jew who rented the land, saying that the land still has kedusha, it is apparent that even when a non-Jew owns the land it still can have its kedusha, for if it did not, a Jew’s rental of it would not return any kedusha.

Therefore, it is clear from the Kesef Mishneh that according to R. Meir, the land’s status is not removed when a non-Jew acquires it. Rather only the kedusha of the fruit in regard to ma’asrot is removed when it is under the non-Jew’s control. The reason for this is that in order for the fruit to have such kedusha, two conditions must be met: the land must have kedusha, and the fruit must have kedusha that results from the kedusha of the land. According to R. Meir, the non-Jew does not impact the land but if the fruit are in the possession of the non-Jew at the time that the obligation of ma’asrot is supposed to take effect, which is when the pile of produce is smoothed out, the kedusha falls off because of his full ownership of the fruit.

Based on this, the question of the Maharit (I, 43) is not difficult. The Maharit had asked on the point that R. Meir learns that just as a non-Jew does not have a kinyan over a Jewish slave, so too he does not have a kinyan over land. The Maharit had been bothered that regarding a Jewish slave, the non-Jew does not have a kinyan even when the slave is under his possession, whereas the Kesef Mishneh had said that while under non-Jewish possession, we treat the field as if it is owned by the non-Jew. The answer is that even though there is no ma’asrot when the field is owned by a non-Jew, that is not a reflection on the status of the field, which remains unchanged, but is a result of the status of the fruit. Actually, regarding the fruit of the Jewish slave, namely, that which he produces, the non-Jewish owner indeed does have full ownership, so the comparison is apt. Along these lines, the Maharit’s other questions are also solved.