Shabbat Parashat Chukat | 5768
Non-Jewish Ownership of Eretz Yisrael – part VII
(from Eretz Hemdah I, 5.7)
(from the works of Hagaon Harav Shaul Yisraeli zt”l)
[We will now examine the p’sak halacha on the question whether there is kinyan (acquisition) for a non-Jew to remove the kedusha of the Land in regard to mitzvot.]
The Yerushalmi (D’mai 5:8) rules that yeish kinyan (a non-Jew has kinyan). In several places in his commentary on mishnayot (as opposed to one place where he seems to contradict himself) the Rambam agrees. However, the Bavli does not give an indication of which of the Talmudic opinions on the subject to pasken like, and the Rambam in Mishneh Torah (Terumot 1:6) rules that a non-Jew does not have kinyan in Eretz Yisrael to remove kedusha. The Kesef Mishneh suggests that the Rambam ruled ein kinyan because of several mishnayot that assume that, but it actually seems that several mishnayot assume yeish kinyan. The Kesef Mishneh adds the possibility that when the Rambam says ein kinyan, that is referring to after he obtains the field a second time or after doing miru’ach (the classical processing of the fruit) in Jewish hands. He implies that the machloket of yeish or ein kinyan is even when the field is in the non-Jew’s hands, but as far as p’sak halacha, the Rambam holds yeish kinyan when it is still the non-Jew’s and ein kinyan regarding when it returns to the Jew.
The Rambam distinguishes between a case where the grain grew a third of its growth under a Jew’s ownership and had miru’ach of a non-Jew, in which case there would be an obligation of ma’asrot on a rabbinic level, and a case where it grew totally under non-Jewish control. The Ra’avad does not distinguish. The Kesef Mishneh says that the Ra’avad’s source is the gemara (Gittin 47a), which asked against the opinion of ein kinyan from a baraita that obligated in ma’aser only if it grew a third by a Jew. From this we see that if one holds ein kinyan, there is no distinction where it grew a third, as either way it would be obligated. The Rambam though, while saying ein kinyan, does not obligate when it was totally under non-Jewish control.
Why would the Rambam mix his p’sak and hold like different opinions in different cases? The Kesef Mishneh cites a Yerushalmi that says that even R. Meir who holds ein kinyan agrees that there is a kinyan on the possession, and R. Ba says that this is so regarding eating the fruits. This means that the mitzvot apply to the produce when a Jew rents the field from the non-Jew, as it is not considered as if he obtained land outside Eretz Yisrael. However, if the non-Jew grew the produce and did the miru’ach, we would say yeish kinyan, as the fruit is the non-Jew’s. It comes out according to the Kesef Mishneh that there are two approaches to the opinion that ein kinyan (whether it be R. Meir or Rabbah). According to one approach, the laws apply even when it is under the non-Jew’s control. The Bavli (Gittin 47) thus assumes that if one holds ein kinyan then this is even if the produce did not reach the crucial stage of a third of its growth under Jewish control. In relation to this opinion, the Rambam paskened that yeish kinyan.
However, according to the opinion in the Yerushalmi that R. Meir himself holds that in regard to cases where everything took place under non-Jewish auspices the laws stemming from kedusha do not apply, all would agree yeish kinyan in such a situation. Thus, when the Rambam says yeish kinyan, he can actually be ruling like the opinion that ein kinyan, just with the approach that the scope of that opinion was reduced. The Rambam is not ruling a compromise between the two opinions but is paskening like R. Meir, who happens himself to have a “compromise position.”
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This edition of Hemdat Yamim is dedicated in loving memory of
R ' Meir ben Yechezkel Shraga Brachfeld
Hemdat Yamim is endowed by Les & Ethel Sutker of
Max and Mary Sutker
and Louis and Lillian Klein, z”l.