Shabbat Parashat Naso | 5768

Non-Jewish Ownership of Eretz Yisrael – part III

Moreshet Shaul

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

Non-Jewish Ownership of Eretz Yisrael – part III

(from Eretz Hemdah I, 5.3)

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[We continue to discuss the Talmudic opinions on the question of whether a non-Jew has a kinyan (ability to acquire) on Eretz Yisrael in regard to removing the kedusha that enables the obligation of terumot and ma’asrot to take effect.]

The Talmud Bavli (Menachot 66b) understands the machloket between R. Meir and R. Shimon on ma’asrot on produce of a non-Jew in Israel, not as depending on the ownership of the land itself but as referring to produce that was processed by a non-Jew. The application is whether one can take ma’asrot from a Jew’s produce on a non-Jew’s produce or vice versa, which requires the obligation of ma’asrot on the two to be of the same level. R. Shimon, who says that one cannot take from one on the other, says that it is because the miruach (smoothing of the pile of produce) of the non-Jew exempts the produce from ma’asrot, even if it grew in a Jew’s field. Tosafot (ad loc.) explains that you cannot attribute the machloket to the kinyan on the land because elsewhere it is evident that R. Meir holds that there is kinyan. If that is the case, then the machloket must be referring to a case where the produce grew in a Jew’s field because if it had grown in a non-Jew’s, then for that reason R. Meir would have said that ma’asrot would not have applied.

The gemara in Gittin (47a) cites a machloket between Rabba and R. Elazar on whether there is kinyan (R. Elazar) or not (Rabba). Tosafot (ad loc.) explains that they refer to R. Shimon’s opinion, for according to R. Meir there certainly is kinyan. According to Rabba, only miruach of a non-Jew exempts; according to R. Elazar, both land ownership and processing of the fruit can create the exemption. The two Amoraim argue whether the pasuk, “for the Land is Mine” (Vayikra 25:24) teaches us that a sale cannot remove the kedusha of the Land or that it is only forbidden to dig or otherwise ruin the land. It is pertinent that this pasuk is the continuation and explanation of the pasuk cited by the Yerushalmi that there is no kinyan, which works well according to Rabba.

According to the opinion that there is kinyan, there is a difference between the Bavli and the Yerushalmi. According to the Yerushalmi a permanent sale takes effect; according to the Bavli, it apparently does not, or else it is hard to understand why the non-Jewish buyer cannot dig holes in the ground. It follows, according to the Bavli, that the sale does not take effect to uproot the laws of yovel, yet it would take effect in regard to removing the obligation of ma’asrot.

One can ask: according to Rabba, who holds there is no kinyan, if that is what the aforementioned pasuk teaches us and there is no source to forbid a non-Jew to dig holes, why shouldn’t the laws of yovel, which explain ein kinyan, preclude digging holes as they do for a Jew who buys it?  It may depend on the machloket in the Yerushalmi if it is possible to sell land during yovel. The matter apparently depends on how one understands the extent of land sale during the time of yovel. Does yovel affect the essence of the sale in the first place, making it temporary, or does yovel leave the original sale intact and uproot the sale when the time of yovel comes?

Apparently the Rambam and Ramban dispute this matter. The Rambam holds that one who sells a field permanently violates a prohibition. The Ramban does not require making the sale in a way that acknowledges that the field will return due to yovel. Rather, yovel is a Divinely ordained uprooting of the sale. The Rambam understands that yovel makes the sale temporary without stipulation. The Ramban understands that the sale itself is permanent and yovel takes effect later.

[We continue with the analysis next time.]

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