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Can A Non-Jew Acquire Rights In Eretz Yisrael

Can A Non-Jew Acquire Rights In

Eretz Yisrael?

Presented by Rav Aryeh Carmell

 

Extract from the Novellae of Rabbi Hayyim of Brisk.

If a non-Jew acquires a piece of land in Eretz Yisrael, the mitzvot of the land still apply to it. This does not mean that the non-Jew must separate tithes or first- fruits from his produce or keep the laws of the seventh year. A non-Jew is never obliged to keep more than his seven mitzvot. It means that a Jew who buys the produce before the agricultural process is completed must separate tithes, etc. The fact that it grew in land owned by a non-Jew does not exempt him from these mitzvot.

As a matter of fact, the Mishna lays down that:

“He who sells his field (in Eretz Yisrael) to an idolater is compelled to buy the fruit thereof (whatever the price) and to bring the first fruits (to the Temple in Jerusalem).” (Gittin 47a).

The reason given is “for the public good”; that is, to discourage Jewish landowners from selling their land to non-Jews.

There is a dispute (in Gittin 47) as to precisely what rights a non-Jew can acquire in Eretz Yisrael. According to Rabbah, his acquisition of the land cannot deprive the fruit which grows on it of its sanctity (as stated above). The verse says: “The land is Mine” (Vayikra 25:33); i.e. its sanctity remains in all respects. On the other hand, his acquisition is absolute in the sense that he is entitled to make alterations in the configuration of the land, such as digging pits, ditches, etc. According to Rabbi Elazar, however, the converse is true: the fruits which grow in the land are free of ma‘aser, but the non-Jewish purchaser has no right to change the character of the land.

Rambam follows Rabbah’s view and accepts that both the land and the produce retain their sanctity. However, he expresses this in a rather surprising way. He writes (Terumot 1, 10):

If a non-Jew acquires land in Eretz Yisrael, the mitzvot do not cease to apply to it. It retains its sanctity, and if a Jew re-acquires it [from the non-Jew] this does not count as “conquest by an individual” [and all the mitzvot still apply to it by Torah law].

“Conquest by an individual” refers to the provision that the status of Eretz Yisrael is acquired only by an act of the whole nation. Conquest by an individual cannot bestow such status. Rambam apparently thinks it necessary to state that the portion of land acquired by a non-Jew does not lose its status as Eretz Yisrael, and thus does not need “reconquering”, so that the question of “individual conquest” does not arise. It is rather puzzling that Rambam should have thought it necessary to say this. Why should it be thought that acquisition by a non-Jew might cause the land so acquired to revert to the status of chutz la‘aretz (land which is not part of Eretz Yisrael)?

The answer is that there are two factors which operate to bestow sanctity on Eretz Yisrael:

(1) Acquisition by the Jewish people, by conquest or otherwise;

(2) Settlement by Jews.

Now there is no doubt that both these factors are required to bestow sanctity on the land; the question is, are they also needed to enable the land to retain its status? Rambam apparently holds that ownership of the land must be present continuously, and if ownership of any part of the land were ever to be effectively relinquished, that portion would revert to chutz-la‘aretz status. Fortunately, however, the halacha lays down: ein kinyan le-nochri be-Eretz Yisrael — “there can be no effective acquisition of (any part of) Eretz Yisrael by a non-Jew”.

Consequently no acquisition by a non- Jew, by conquest or purchase, can change the status of Eretz Yisrael. (This principle applies to the land re-occupied by the Jews under Ezra at the beginning of the Second Temple period, and also to all the land conquered and re-settled subsequently, during the Hasmonean and Herodian periods; i.e. virtually the whole of the Biblical Eretz Yisrael and Transjordan.)

So far as the monetary aspect is concerned, however, the non-Jew has the same rights as any other purchaser and can therefore dig pits and ditches at will.

There would seem to be another reason why the acquisition of land by a non-Jew could not be effective in changing the status of Eretz Yisrael. This is because any such acquisition could surely never be absolute. The Torah prohibits the absolute sale of land in Eretz Yisrael (Vayikra 25,23).

If anyone purports to sell any part of Eretz Yisrael absolutely, both the buyer and the seller transgress a law of the Torah; that part of the contract providing for an absolute sale is invalid; the original (Jewish) owner is entitled to redeem his land from the purchaser any time after the first two years; and failing this, the land reverts to him without payment in the Jubilee year (the fiftieth year). (Vayikra 25, 24-28; Rambam, Hilchot Shemitta ve-Yovel, 11:1)

These laws only apply, however, when all (or most) Jews reside in Eretz Yisrael and the original tribal divisions are preserved, as in the time of Joshua. Neither of these conditions applied in the time of Ezra. Only a fraction of the Jewish nation returned to Eretz Yisrael from the Babylonian Exile, and the tribal divisions were not maintained.

On this account, the laws of the Jubilee did not apply during the Second Temple period. It would appear that Rambam holds that the law prohibiting absolute sales of land is part and parcel of the Jubilee legislation, and so this law, too, did not apply during the Second Temple period. Absolute ownership of the land became possible, and there was thus a theoretical possibility that a non-Jew might acquire absolute ownership in part of Eretz Yisrael and so deprive the land of its sanctity. But, here again, the Halacha steps in with its overriding principle: ein kinyan le nochri be-Eretz Yisrael — “a non-Jew can never have effective ownership over [any part of] Eretz Yisrael”. This outcome is therefore avoided and all parts of Eretz Yisrael retain their sanctity for all time.

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