Shabbat Parashat Beha'alotcha | 5768

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

Non-Jewish Ownership of Eretz Yisrael – part IV

(from Eretz Hemdah I, 5.3)

[In explaining last time the different limitations on the extent of the sale of land in Eretz Yisrael to a non-Jew, we saw that some learn from the pasuk in question that it does not remove the obligation of ma’asrot (ein kinyan). Others learn that he has a kinyan but that he cannot dig up the land prior to its return to the original Jewish owner during yovel. To understand this dichotomy, we introduced the two opinions in the Yerushalmi on whether a land sale could take effect at all during yovel and cited the related machloket between the Rambam and Ramban. They dispute whether the prospect of yovel limits the scope of a sale from its inception or whether the sale is a complete one and yovel returns the field to its original owner anyway.

The Yerushalmi asked on the opinion that one can buy land during yovel, that, if so, the buyer should be able to dig holes in the field. It answers that this is precluded by the pasuk, “and he shall return to his land of heritage.” It turns out then that if the sale does not go through, the lack of ownership mandates that he cannot dig and that according to the opinion that it does take effect, he may not dig because of the mitzva to return the original owner to the field. There should be a difference between the reasons in the case of a non-Jew who buys the field. The limitations on the sale of the field would affect the non-Jew as well, but the mitzva to return the Jew to his land would not. Therefore, if the sale would go through, the non-Jew would be able to dig holes, for the mitzva that precludes the digging does not apply to him.

The Chazon Ish (Shvi’it 1:1) posits that even the Bavli agrees that a non-Jew does not have an obligation to return the field he bought, as the Yerushalmi says that if he sells it, it is sold. This would explain why according to Rabba it is permitted for the non-Jew to dig holes unlike a Jew who bought the field. He explains that even R. Elazar who says that it is forbidden to dig holes says so only because of the possibility that it will return to a Jew’s possession. However, it is very difficult to say that the possibility that it may return to a Jew would preclude a non-Jew from doing with it that which he wants while it is still his.

Rav Chaim Halevi explains the Yerushalmi based on the implication of the Bavli. The Yerushalmi did not intend that a non-Jew does not have to return the field during yovel. Rather it means that just as, without a pasuk, we would have said that a non-Jew could buy the field permanently, so too regarding removing the obligation of ma’asrot [where there is no pasuk], he has a kinyan and can remove the laws of kedusha in regard to ma’asrot. However, this explanation is difficult to insert into the language of the Yerushalmi.

Therefore, it seems more likely that the Bavli and Yerushalmi disagree. This goes well with what we said (5.1) within the Rambam’s approach, that the matter depends upon the machloket between Abaye and Rava if when one does something that he is not allowed to do, it takes effect (Abaye) or not (Rava). The Bavli holds that there is no kinyan, as it holds like Rava that it does not work for one to remove the kedusha improperly by selling the field in a permanent manner to a non-Jew.

There is also a machloket between Rabba and Rav Elazar in the Bavli regarding the meaning of “degancha” (your grain), which is written in the context of ma’asrot. According to Rabba, it excludes the miruach (smoothing out of the pile of produce) that is carried out by a non-Jew. According to Rav Elazar, it comes to exclude the grain that is owned by a non-Jew (Giitin 47a).