Shabbat Parashat Shelach | 5768

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

Non-Jewish Ownership of Eretz Yisrael – part V

(from Eretz Hemdah I, 5. 4,5)

[We will now take a closer look at how halacha views the opinion of ein kinyan, whereby the Land’s kedusha in regard to terumot and ma’asrot remains even after a field was sold to a non-Jew. We will also look into the opinions of Rishonim regarding the opinions that yesh kinyan.]

Rishonim dispute the explanation of ein kinyan.

Rashi (Gittin 47b) says that as a result of there not being a kinyan, it is considered, in regard to matters of sanctity, as if the field was not sold and remains in the possession of the previous owner. It follows that the seller would be required by the Torah to buy fruit to serve as bikurim from the field and bring them to Yerushalayim on a yearly basis because it is considered to still be his land and fruit.

According to the Rivam, with regard to the kedusha, it is considered, as a result of the sale, as if the field entered the domain of Klal Yisrael as a whole. This has the following logical advantage. The halacha is that if a Jew buys produce from a non-Jew and does miruach (smoothing the pile of produce, which is the action that makes produce chayav in ma’asrot), the buyer is obligated in ma’aser. Yet we must consider that if one Jew buys produce from another Jew before miruach and the buyer does the miruach, the buyer is exempt on the Torah level from ma’asrot because it is not called “the produce of your seed.” We must say that it is considered as if the field was owned by every single Jew so that when he later does miruach, it is like miruach of fruit from his own field.

Rabbeinu Tam says that from the perspective of Torah law, whenever one would be exempt from ma’aser when buying from a Jew, he is likewise exempt when he buys from a non-Jew. He must hold that the kedusha of the Land is unrelated to who owns the specific tract of land.

All agree that the non-Jew has a monetary kinyan.

According to the opinions that yesh kinyan and the kedusha is removed, still, ostensibly, if a Jew buys back the field, it will revert back to its kedusha. For example, the mishna (Gittin 47) says that because of a special rabbinic institution, one who buys back a field from a non-Jew has to bring bikurim. The Ritva explains that this is talking about bikurim on that which grew before the sale, for that which grew after the sale certainly has a full-fledged obligation.

The Rambam (Bikurim 2:15) says that one who buys from a non-Jew brings bikurim on a Torah level because the non-Jew does not have the power to undo the kedusha. The Ra’avad says that he was referring even to a case where the produce grew in the non-Jew’s possession. The Ra’avad understands that the machloket of whether there is kinyan is where the field is in the non-Jew’s possession.

However, the Kesef Mishneh’s (ad loc.) understanding of the Rambam’s opinion is that the obligation is in regard to that which grew after the Jew bought the field, for that which grew when under the non-Jew’s possession would not have full bikurim even if ein kinyan. According to this, the machloket is when the field is bought back and according to the opinion that yesh kinyan, even at that point it lacks kedusha. This is implied by the Rambam’s language in Hilchot Terumot (1:6): “A non-Jew who bought … he did not uproot the mitzvot… therefore if a Jew went back and bought it, it is not like a personal acquisition….” The Gra agrees with the Kesef Mishneh’s explanation of the Rambam, whereas the Chazon Ish and Rav Chaim Halevi demonstrate why they think the Ra’avad is correct. According to them, that which the field, upon reacquisition, is not like a personal conquest is true even according to the opinion that yesh kinyan. We believe that the Kesef Mishneh is correct. [Further analysis of the specific sources is beyond our present scope.]