The Right Of Acquisition Of A Gentile Of Land In Israel

Written by: R. Yitzchak Seltzer

The Right of acquisition of a Gentile of land in Israel

The Mishnah states: [1]

 מתני' המוכר את שדהו לעובד כוכבים לוקח ומביא ממנו בכורים מפני תיקון  העולם:

"One who sells his field to a Gentile must buy (the first fruits) and bring from them Bikurim in order to fix the world."

The Talmud following the Mishnah ibid. brings a debate between רבה and ר' אלעזר:

גמ' אמר רבה אע"פ שאין קנין לעובד כוכבים בארץ ישראל להפקיע מידי  מעשר שנאמר כי לי הארץ לי קדושת הארץ אבל יש קנין לעובד כוכבים בא"י  לחפור בה בורות שיחין ומערות שנאמר השמים שמים לה' והארץ נתן לבני  אדם ור"א אומר אע"פ שיש קנין לעובד כוכבים בא"י להפקיע מידי מעשר שנאמר דגנך ולא דגן עובד כוכבים אבל אין קנין לעובד כוכבים בא"י לחפור  בה בורות שיחין ומערות שנאמר לה' הארץ במאי קמיפלגי מ"ס דגנך ולא דגן עובד כוכבים ומר סבר דיגונך ולא דיגון עובד כוכבים.

   Rabbah said: Although an idolater can have no ownership (of land) in the land of Israel to exempt it from maaser, for it is stated: "for the Land is Mine," the sanctity of the Land is Mine.  However, an idolater can have ownership in the Land of Israel to digging in it pits, ditches or vaults, for it stated: "As for the heavens-the heavens are Hashem's, but the Land he has given to Mankind."  Rabbi Eliezer says: Although an idolater can have ownership in the Land of Israel to exempt it from maaser, for it stated: "of your grain," but not the grain of an idolater, but an idolater can have no ownership in the Land of Israel to dig in it pits, ditches or vaults, for it is stated: "Hashem's is the Land."

   What is the basis for their disagreement?  One holds (Rabbi Eliezer) 'your grain[2] and not the grain of a gentile.  One holds (Rabbah) 'Your grain processing' and not the grain processing of a gentile.

            From the words of the text, it seems clear that the two opinions are arguing.  The text of Rabbah and of Rabbi Eliezer use the exact same terminology coming to opposing conclusions.  Rabbah hold that land purchased by a gentile does require maaser and Rabbi Eliezer hold it does not require maaser.  However, there are many hints in the organization of the text that the nature of this disagreement is not as simple as it seems.   Rabbah lived in the fourth generation and Rabbi Eliezer lived in the second generation.  Generally the Talmudic text is organized in order of generation in order to show the historical progression of the section.  Sometimes the order is changed in order to show that the ruling goes according to the earlier opinion.  Since the ruling usually is according to the later generation the author may list the earlier opinion later in order to show that the law rules according to him. However, this cannot be the case since the Talmud brings the opinion of Rav Ashi who explains the opinion of Rabbah.  This would imply that the ruling goes according to Rabbah.  Most of the authorities rule according to Rabbah. [3]Maimonides, Furthermore, Rabbah lived in Babylon and Rabbi Eliezer lived in Israel.  To have such an exact argument would be highly unlikely.  The narrator of this text explains that the argument is how they expound on the verse "your grain."  This verse only applies to ma'aser.  However, the reasons given by Rabbah and Rabbi Eliezer would apply by all commandments dependent on the land.  The Talmud [4]Talmud Bavli, ater asks a question from the Mishnah that is dealing with Bikurim.  This shows that the people of the time understood their argument was applicable to all commandments connected to the land of Israel.

            There are three possible explanations for this discrepancy.  It is possible that the narrator of this text wanted to convey a specific message.  He did not want to portray these statements as a complete argument.  Had the text been written in the order that it should be written with Rabbi Eliezer first and than Rabbah, we would have assumed that Rabbah disagrees entirely with Rabbi Eliezer.  Therefore, it is written with Rabbah first to show that Rabbah partially agrees with Rabbi Eliezer.  This view would solve other contradictions to this text as well. 

            The Talmud concludes in three other locations that a gentile can have ownership in the land of Israel to exempt it from ma'aser. 

            Rabbi Sheshet, who lived in the generation between Rabbi Eliezer and Rabbah, brings a Tanaic statement. [5]Talmud Bavli,

האריסין והחכירות  ואריסי בתי אבות ועובד כוכבים שמשכן שדהו לישראל אע"פ שעשה לו נמוסו  פטורה מן המעשר 

Sharecroppers, Farmers, A sharecropper in his father's place, Gentiles that give their fields to an Israelite even if they made a time limit, (all the above) he is exempt from ma'aser.

            This statement states unanimously that a gentile is exempt from maaser.  If this is a Tanaic statement Rabbah does not have the authority to contradict it.

            Also in Babba Metzia [6]Talmud Bavli, the Talmud concludes that the proper way to explain the Mishnah is that it holds that a gentile can have ownership in the land in Israel.  The Talmud [7]Talmud Bavli, also explains that Rabbi Meir's opinion that one cannot sell land to a gentile in Israel is because by selling the land one is relinquishing the obligation of ma'aser. 

            The Jerusalem Talmud [8] bring Rabbi Eliezer's opinion differently.

ר' אבהו בשם ר' אלעזר אף על גב דרבי מאיר אמר  אין קניין לעכו"ם בארץ ישראל  להפקיעו  מן  המעשרות  מודה  שיש לו בה קניין נכסים. מהו קניין נכסים אמר רבי אבא  אכילת פירות.

Rabbi Abahu in the name of Rabbi Eliezer (says) 'even though Rabbi Meir says that a gentile cannot have ownership in Israel to exempt from ma'aser he admits that there is ownership on the estate.'  What is ownership on the estate?  Rabbi Abba says eating fruits.

            This implies that Rabbi Eliezer does not connect between the ownership of land for the obligation of ma'aser and the ownership to dig ditches.  He states that Rabbi Meir admits to Rabbi Yehuda that there is ownership on the estate.  This would imply that it was assumed that the one who holds there is ownership to exempt from ma'aser also holds there is ownership on the estate.  Furthermore, according to both opinions the ownership is limited to the fruits which implies the ground and the right to dig a gentile could not own. The Jerusalem Talmud also brings a different source for the argument whether a gentile has ownership to exempt from ma'aser.  There is also another contradiction between the Jerusalem Talmud and the Babylonian Talmud.  In the Jerusalem Talmud Rabbi Meir holds that a gentile cannot have ownership to exempt from ma'aser and the Babylonian Talmud explains that a gentile can have ownership.

            Some commentators, [9] See Meiri Avodah Zarah 21a reconcile the contradictions saying that both Rabbah and Rabbi Eliezer agree that while the land is in the ownership of the gentile the produce is exempt from ma'aser.  This would explain the three other places where the Talmud concludes that a gentile can have ownership to exempt from ma'aser.  Rabbah and Rabbi Eliezer are arguing if when a Jew buys the land back from the gentile if the obligation is removed and must be reinstated.  The Jerusalem Talmud that explains Rabbi Meir as holding there is no right of ownership to exempt from ma'aser is also dealing with a similar fashion.  This can also explain the historical discrepancy of the manner the disagreement between Rabbah and Rabbi Eliezer is presented.  Rabbah is mentioned first to show that Rabbi Eliezer's opinion is only brought to argue on a specific point but he does agree with him in certain case for example while the land is still in the ownership of the gentile.  Had the Talmud brought Rabbi Eliezer's opinion first it would be interpreted that Rabbah rejects Rabbi Eliezer.  The format was changed in order to first state Rabbah's opinion and give the grounds for the specific argument being addressed.  This still does not explain the discrepancies between the Jerusalem Talmud and Babylonian Talmud in Rabbi Eliezer's opinion.

            A variation of this explanation can be found in the explanation of Rabbi Chaim Soleveitchik. [10] He explains that Rabbi Eliezer agrees with Rabbah that the right of ownership of a gentile in the land of Israel to remove sanctity is limited.  Rabbah says that a gentile cannot have ownership to remove both the sanctity in the land and its fruits.  Rabbi Eliezer agrees that a gentile cannot have ownership to remove the sanctity on the land but the sanctity on the fruits he can remove.  This would explain why Rabbi Eliezer's opinion is stated after Rabbah's opinion.  This is because he agrees with part of Rabbah's statement and is arguing on part of it.  Had the Talmud placed the argument in chronological order one would have assumed that Rabbah and Rabbi Eliezer are disagreeing entirely.  This perhaps can also explain the discrepancies between the Jerusalem Talmud and the Babylonian one.   Perhaps the Babylonian Talmud understood that "ownership of the fruits" was referring to the different types of sanctity. His statement that everyone agrees he has ownership of the fruits is the basis for his opinion mentioned in the Babylonian Talmud that a gentile can have ownership to exempt from ma'aser, which is dependent upon sanctity of the fruits.

            Another possible explanation for deviation of the chronological order is to point out their disagreement.  Perhaps if they were presented in chronological order the reader would have noticed the historical and geographical gap in the argument.  The obvious conclusion would than be that they do not argue entirely.  Rather, Rabbah's opinion comes from an entirely different outlook.  Therefore, they are written out of order in order to appear as equals and to point out that despite the gaps this is a direct argument on all points.  The contradictions can be rectified by acknowledging that there is a tanaic argument in this issue as well and those sections are based on a different Tanaic source.  However, the discrepancy between the Jerusalem Talmud and Babylonian Talmud are not resolved.

            It is also possible that the statement said in the name of Rabbi Eliezer was not said by him or quoted from him.  It is Rabbah's explanation how Rabbi Eliezer would explain the sources that he used.   This seems likely since the text writes "and Rabbi Eliezer said."  It is abnormal when quoting a statement to start it if with the word 'and.'  The standard way would be to start 'Rabbi Eliezer said."  This implies that Rabbi Eliezer did not say this statement.  Rather, someone is saying it for him.  Since the statement is written in Hebrew it is probably Rabbah and not the narrator.  Perhaps Rabbah came to the conclusion based on the Jerusalem Talmud that Rabbi Eliezer does hold that a gentile cannot have ownership to dig.  Perhaps, Rabbah knew that Rabbi Eliezer rules like Rabbi Yehudah that a gentile can have ownership to exempt from ma'aser.   Rabbah than inserted Rabbi Eliezer's opinion into the same sources he learned his own opinion from.  It is also possible that Rabbah heard of  Rabbi Eliezer's statement that the gentile has ownership on the property but did not have Rabbi Abba's comment that it is referring to the fruits.  He therefore, interpreted that ownership on the property allows the gentile the right to dig. It is also possible that he did not know that this is in agreement between Rabbi Meir and Rabbi Yehudah.  Therefore, he understood that his option parallels Rabbi Meir's and Rabbi Eliezer's opinion paralleled Rabbi Yehuda's.  This explanation does not explain the contradictions within the Babylonian Talmud.  Since, we have accepted that it is a disagreement amongst the Tanaim the contradiction between the different discussions can be reconciled as was mentioned above. 

            The most probable explanation lies somewhere between the first and the third explanations.  The third explanation is very convincing explaining the discrepancies between the Jerusalem Talmud and the Babylonian Talmud.  The addition of the word 'and' adds to this possibility.  However the first explanation seems necessary to explain the contradiction within the Babylonian Talmud and the contradiction in Rabbi Meir's opinion in both the Jerusalem Talmud and Babylonian Talmud.  When the Babylonian Talmud writes in the name of Rabbi Meir that a gentile can have ownership to exempt from ma'aser it is referring to while the land is still in the gentiles possession.  However the argument between Rabbah and Rabbi Eliezer and when the Jerusalem Talmud quotes Rabbi Meir say that a gentile does not have ownership to exempt from ma'aser, is referring to the status of the land after it is repurchased by a Jew.  Rabbi Chaim Soliveitchik analysis seems also correct.  Since, Rabbah did not have to mention Rabbi Eliezer second and the text switching from a general statement to a specific statement alludes to the flow of the discussion that Rabbi Chaim Soliveitchik suggests.

            The right of Gentiles to purchase land did not end in a Talmudic discussion.  There has been a debate for centuries amongst the authorities as to the conclusion of the topic.  The question came up in the sixteenth century during the Sabbatical year.  Does the produce that was grown in Israel by a gentile have the sanctity of produce grown in the Sabbatical year? If one sells his land to a gentile is there still a prohibition to work and eat from the land? 

            Most Authorities[11] hold that the sabbatical year is presently a rabbinical obligation.  Although the Talmud is only referring to right on the land given by the Torah, there is a debate Rabbi Yoseph Cairo, response Avkat Rachel Section 31; Mabit response 42-43 whether or not it would apply to the Rabbinical laws as well. 

            This debate continued for centuries and still exist amongst authorities today.  Although, the laws never change the reluctance to rely on different readings of this text and other laws changed.  It changed in accordance to the pressure facing the time.

            In the sixteenth century the settlements were small.  Although it was an agricultural society the fields of the Jewish settlers in the land of Israel were small and most of the Jews were than professionals.  The question of the right of ownership came from the fact that they were purchasing most of their produce from the non-Jews and the question was whether or not the produce bought had to be treated as holy fruit grown with the sanctity of the holy year.  If it was grown with the sanctity of the Sabbatical year than it cannot be wasted or thrown out and if bought by a Jew before the grain was prepared it would not be obligated in ma'aser.  If it was not grown with the sanctity of the Sabbatical year than one can be more sparingly with them and if bought by a Jew before the grain was prepared it would not be obligated in ma'aser.   Most authorities ruled that produce owned by a non-Jew and grown by a non-Jew no longer was holy.  This meant that a gentile does have the right of ownership to exempt from ma'aser and in this case shmita. 

            Until the year 1888 (התרמ"ח) the debate remained the same.  There was no problem with the produce grown by the Jews.  The Jews who owned fields either did not work the fields or relied on the opinion of Ravad and Razah [12]Ravad commentary on Rabbi Alfasi, Gitin 47a, also see Rav Avroham Yitzchak Hakohen Kook's introduction to Shevet Ha'aretz that there is no sabbatical year in present time.  In 1888 [13] The sabbatical year was in 1889 but the debate started the year before when searching for solutions. the Jewish settlement was growing and there was a larger population of Jewish farmers.  Some of the authorities [14]Rabbi Yisroel Yehoshua of Kutna responses on Yorei Dayah section 59 ruled that they could sell their land to gentiles and continue to work and sell the produce.  Most authorities were strongly opposed.  Besides the dispute in reading the text whether a gentile has ownership, there is another prohibition in selling land of Israel to gentiles. [15]Deuteronomy Chapter 7 Verse 2 "לא תחנם"; Maimonides, Mishnah Torah, Laws of Strange Worship Chapter 10 Law 4  The others held that since the gentile will never actually use the land in such a sale and the sale is done to help Jews settle the land of Israel it is permissible to sell to gentiles.

            From 1896 through 1945, Due to social and economic pressures, more Rabbis permitted the sale of land to non-Jews. The Rabbis of Jerusalem [16]Rabbi S. Salant and Rabbi Y.L. Diskin permit the sale.  In 1952 the debate was renewed.  Since this was the first sabbatical year after the creation of the State of Israel, many felt it should be done with faith in G-d and the entire country should observe the Sabbatical year in its entirety.  The Israeli Rabbinate permitted the sale because of the economic and social necessity.  Last year (2001) the debate changed.  This is because that Israel is no longer dependent on agriculture.  Most of Israel's profits are from the High Tech industry.  Therefore, a sabbatical year would not hurt the economy.  On the other hand, with the rise of the intafada there is a greater need not to be agriculturally dependent on our neighboring countries.

Historical Progression of The Sabbatical Year

*ר"ש סאלנט ורי"ל דיסקין

            In the debates over the Sabbatical year authorities argued over some of the conclusions derived in this discussion.  In our discussion it seemed that there was an agreement that while the land was in the possession of the gentile it did not remain with the same sanctity.   This than triggers the question whether or not such land is susceptible to the laws of the Sabbatical year and can one utilize this opportunity and create the situation by selling his land to gentiles during the sabbatical year.  Even though there seems to be an agreement that the non-Jew's produce does not have sanctity, once it is purchased by a Jew the question is renewed.  Since we have accepted Rav Soliveitchik's arguments that there is an agreement that there is a lose of sanctity when a non-Jew purchases the Land of Israel.  This in itself is a motivation to build the Jewish settlement in a way that we do not need to rely on produce grown in land purchased by a gentile.  This has been added to the different sides of the debate regarding shmita.  Although, ideally we do not want to  have to sell our holy land to non-Jews even for one year.  It may be more dangerous to the settlement to purchase from our hostile neighbors rather than sell the land in a way that we are still working it and it is our economy that is thriving.  It is unfortunate that the authorities must decide between losing sanctity or hurting the Israeli economy.  Both choices are detrimental to the Jewish settlement based on the ideals learned from the Talmud.  We pray for the day that the choice will be simple to keep our sanctity without any effect on  the economy.

            The right of a gentile to ownership in the land of Israel to remove its holiness and the mitzvot that are dependent on the land is a topic debated for generations.  A proper historical analysis of the text helps understand the rulings presented by the Talmud.  The Talmud was written in a style meant to show the reader when historical progression does not coincide with the halachic progression.  By doing a thorough historical analysis and halachic analysis the intentions of the Talmud become clearer.  This analysis  also enables one to understand where debatable issues that have been unclear for generations emanate from.