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 Shabbat Parashat Shelah| 5767Moreshet ShaulFrom the works of Hagaon Harav Shaul Yisraeli zt”l - The Return of Land During Yovel - Part II - From Chavot Binyamin, siman 99
[We saw last time that the Rambam ruled that the buyer and seller both violate the prohibition to sell land in Eretz Yisrael permanently. He says that their attempt to do so fails but does not discuss malkot. Regarding selling or redeeming ma’aser beheima, the Rambam says that it too does not work and states that there are no malkot. We conclude the series next week.]
The Rambam learned that both the buyer and the seller violate trying to sell a field in Eretz Yisrael permanently from the fact that the Torah used the passive voice. The Torah did the same regarding trying to redeem ma’aser beheima. However, that cannot be referring to a violation for two parties because the case discussed explicitly is redeeming, which is accomplished by one party alone. Therefore, the Rambam surmised that the passive voice is to indicate that the sale or redemption does not work if attempted.
This idea also explains why there are no malkot for this violation. [We saw last time that] the Rambam accepted Rava’s rule that when the Torah says not to do something, it does not work if one attempts it. Why does the Torah go out if its way to say that the sale of ma’aser beheima does not work if there is a rule that it should not? Paradoxically, it teaches us that there are no malkot. If the matter had not worked because of Rava’s rule regarding standard prohibitions, he would have received the normal punishment for violations, malkot. Here though, where the sale does not work because of the nature of the local prohibition, malkot are inappropriate. If so, the Chinuch’s presumption that a buyer and seller who attempt to sell land permanently receive malkot is correct because that sale fails due to Rava’s general rule.
We can also understand the opinion brought by the Ramban that if one sells a field on condition that the buyer will not have to return it during yovel, the condition works, just as a condition that shemittah knock off a loan works. The Chinuch counters that the condition should not work because the seller, who makes the concession, is himself forbidden by the Torah to sell permanently. How then can he give permission to another to keep it permanently? Although according to the Rambam, the seller is proscribed from making such a sale, the Ramban and Rashi understand that it is specifically the buyer who is required to return the field. From his perspective, it is like a standard, monetary-related prohibition, where the person who the Torah protects can make a condition to waive the safeguard.
We can now set the stage for understanding the Rambam’s approach to the status of a field that was obtained through sale or division of inheritance vis-à-vis the declaration that accompanies the bringing of bikurim. The gemara (Gittin 48a) says that during the first yovel period one could make the bikurim declaration but not during subsequent ones. Rashi explains that after the first yovel, people were accustomed to fields returning. What does the fact that people had experienced yovel have to do with the kind of ownership they had over the land?
It is possible to say that the law of yovel decrees that the land not be sold in a permanent manner. However, it is possible to say that the sale, in and of itself, is a permanent one, just that yovel comes and uproots the otherwise permanent sale. Rashi’s explanation of the aforementioned gemara can be understood according to the second possibility. Originally, one who bought a field had full ownership until the yovel cancelled it. He thus could make the bikurim declaration about the land Hashem gave him. However, people later became accustomed to the field going back, and intended that, de facto, their purchase was temporary (kinyan peirot). As a result, they no longer acquired the land in a manner that would enable them to make the declaration.
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