Shabbat Parashat Bechukotai | 5768

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

Non-Jewish Ownership of Eretz Yisrael – part I

(from Eretz Hemdah I, 5)

The mishna (D’mai 5:8) states that one can take ma’aser from a Jew’s produce to exempt a non-Jew’s produce or from a non-Jew’s produce to exempt a Jew’s. This indicates that the mishna understands that a non-Jew’s produce is chayav in terumot and ma’asrot on the Torah level. This is because if it were only rabbinic, it would be considered, from the perspective of Torah law, taking off from the chayav on the patur or vice versa, which does not work. The Yerushalmi explains that the above mishna follows the opinion of R. Meir, who holds that a non-Jew does not have a kinyan (ability to fully acquire) to undo the obligation of ma’asrot. R. Shimon, on the other hand, holds that a non-Jew has such a kinyan, and, therefore, he does not allow taking ma’aser from one on that of the other. R. Meir’s opinion is based on the following analysis. Since the pasuk compares the ownership of a slave to that of the Land (see Vayikra 25:46), R. Meir learns that just as a non-Jew does not have a full kinyan over a slave, so he does not have a kinyan over land in Eretz Yisrael. R. Elazar B. R. Yossi supports R. Meir’s opinion from the pasuk (in regard to yovel), “The land shall not be sold for eternity” (ibid.:23), which means that it cannot be sold in an absolute manner. The Yerushalmi points out that R. Shimon can counter that this pasuk, which prohibits selling land in Eretz Yisrael, in an absolute manner, implies that it can be accomplished (improperly).

The second support to R. Meir requires elucidation. After all, we are discussing the impact of a sale to a non-Jew in regard to the laws of ma’aser, not the matter of permanent sale. The Megillat Esther (to Sefer Hamitzvot, Lo Ta’aseh 227) explains based on the Rambam’s understanding that the prohibition of selling permanently applies also to a Jew’s sale of land to another Jew, if done on the condition that the law of return of land during yovel will not apply. This is not R. Meir’s source, but it is a hint at his approach that the Torah was concerned that the kedusha of the Land not be undone by being sold to a non-Jew. The problem is that at least during the time it is in a non-Jew’s possession, it is like a permanent sale, in that it is considered like land in chutz la’aretz. Rav Chayim Halevi explains that since we learn that one cannot sell land on a permanent basis, it is not possible that such an acquisition would be able to undo the kedusha in regard to ma’asrot.

The Yerushalmi’s deflection of the application of the idea of no permanent sales is that it is only wrong l’chatchila to sell the land permanently but that it would work b’di’eved. This seems to contradict the Rambam’s (Shemitta V’yovel 11:1) opinion that if one made a condition that the land should not return in yovel, it would return anyway. The matter can be resolved based on the Ramban’s suggestion that whether or not the sale remains permanently depends on the general machloket between Abaye and Rava whether something forbidden that is done takes hold b’di’eved (Temurah 4b). The “proof-bringer” and the deflector in the Yerushalmi argue about this point, and the Rambam paskens like Rava that a prohibited act does not take effect.

The Ramban himself understands that the prohibition refers to selling land to a non-Jew, so that it would not be returned in yovel. According to this approach, the proof is that if a non-Jew were able to remove kedusha of the land in regard to terumot and ma’asrot, it would likewise be possible to make the sale permanent, each of which is not possible according to R. Meir. The Yerushalmi counters that indeed the Torah does not want either change in the Land’s status but that either of them could be accomplished, and this is what the Torah warns about.