Shabbat Parashat Korach | 5768

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

Non-Jewish Ownership of Eretz Yisrael – part VI

(from Eretz Hemdah I, 5.6)

[We will now examine in regard to what mitzvot the dispute of yeish kinyan or ein kinyan (a non-Jew has or does not have the ability to remove the sanctity of Eretz Yisrael) applies.]

The machloket whether yeish kinyan or ein kinyan is found in the context of ma’asrot. The Bavli (Gittin 47) assumes the machloket extends to bikurim. Although the derasha of “degancha” refers to ma’asrot and “admatcha” to bikurim (Bava Batra 81a), Tosafot (ad loc.) holds that one who learns from one can learn different things from the other. The gemara, in asking on the opinion of ein kinyan regarding ma’aser, asks from bikurim, which implies that whatever opinion is correct for one would be right for the other.

If so, we would expect that the machloket on kinyan of the Land will determine its status for all mitzvot hateluyot ba’aretz. Indeed Tosafot, when investigating a proof if agricultural mitzvot that apply in chutz la’aretz (e.g. kilayim, chadash) apply to a non-Jew’s land, deflects it by saying that the source follows the opinion of ein kinyan. In contrast, the Rosh (Shut 2, 1) assumes that the machloket does not extend to orlah and that all agree there is orlah even on a non-Jew’s property. He learns this from the mishna that assumes a prohibition of kilayim on a non-Jew’s field, which he understands to be accepted also by the opinion that yeish kinyan.

The Chazon Ish (Shvi’it 1:2) distinguishes between positive mitzvot that require an action and mitzvot of prohibition. The machloket of yeish kinyan applies to positive mitzvot such as giving ma’asrot. Since only one who is obligated in mitzvot can be expected to do these things, these mitzvot do not apply to a non-Jew’s land. However, the prohibitive mitzvot apply to the land and fruit more directly and, since the land’s kedusha is not uprooted, these mitzvot still apply. Therefore, orlah applies to a non-Jew’s field. He is not sure whether shemitta is primarily a prohibitive mitzva on the field or a positive obligation on the farmer to cease working. He learns from the Yerushalmi that kilayim depends on the owner’s activity, as it is violated only if he is happy with the mix of species. However, it is difficult to say that kilayim is more based on the owner than on the field.

The aforementioned Yerushalmi is difficult for the Rosh, who says that kilayim applies to a non-Jew’s field even if one holds yeish kinyan. Perhaps the matter is a dispute between the Bavli and Yerushalmi. The latter holds that there is a machloket Tannaim if yeish kinyan, in which case the mishna that indicates that kilayim applies to a non-Jew’s field can hold ein kinyan. The Bavli posits that according to one Amora all agree that yeish kinyan. Therefore, it must be possible to explain the mishna even if yeish kinyan by saying that kilayim and orlah are different. Tosafot (above) who says that the mishna holds ein kinyan may refer only to an issur d’rabbanan. The Rosh would agree that according to the Yerushalmi, the machloket applies to orlah as well. The different approaches between the Bavli and Yerushalmi stem from the different derashot they use to justify the different opinions [the fascinating indications of this thesis’ veracity are beyond our scope.]

Tosafot reasons that shemitta depends on the general machloket; the Rosh’s view is unclear.

According to the Rambam [see last week] that if yeish kinyan, it is possible to remove the kedusha permanently, this applies to every land-linked mitzva. This would explain a discrepancy regarding orlah in the Rambam between the Commentary on the Mishna and the Yad Hachazaka (a later work). In the former work, the Rambam held yeish kinyan, explaining why orlah would not apply to a non-Jew’s field. However, in the latter he posits that ein kinyan and subsequently he held that orlah applies to a non-Jew’s field.