Shabbat Parashat Behaalotcha| 5767
From the works of Hagaon Harav Shaul Yisraeli zt”l - The Return of Land During Yovel - Part I - From Chavot Binyamin, siman 99
The gemara (Gittin 47b) brings a machloket between R. Yochanan and Reish Lakish whether one who buys land only in regard to eating its fruits (kinyan peirot)recites the declaration upon bringing bikurim (R. Yochanan) or not (Reish Lakish). R. Yochanan reasons that kinyan peirot is equivalent to kinyan haguf (full ownership) and, therefore, one can recite, “the fruit of the land that You gave me.” Reish Lakish posits that kinyan peirot is not equivalent to kinyan haguf.
R. Yosef concludes that if R. Yochanan had not held that kinyan peirot is like kinyan haguf,he would have had a problem. He rules elsewhere that in a case that multiple inheritors divide the inheritance of land, it is as if they are selling rights one to the other, and the fields revert to joint ownership when yovel occurs. When yovel is to apply to a certain field, it is considered that its “owner” enjoys only kinyan peirot. Combining all of these facts, the only people who could recite the declaration of bikurim are those who are in a line of those who were the field’s lone inheritors all the way back to the division of the Land. This, assumes the gemara, is counter-intuitive. The P’nei Yehoshua (ad loc.) asks that this problem still exists for the Rambam who rules like Resih Lakish that kinyan peirot is not like kinyan haguf and like R. Yochanan that those who divide fields among inheritors have to re-divide them during yovel. To answer this question, we have to ascertain the Rambam’s outlook on the return of fields in yovel.
The Rambam writes: “Eretz Yisrael which is divided among the tribes may not be sold forever, as the pasuk says: ‘The Land shall not be sold forever.’ If he sold forever, both of them violated the negative commandment, and their actions do not work; rather, the field returns to its owner during yovel” (Shemittah V’Yovel 11:1). The Radvaz (ad loc.) explains that the Rambam holds like Rava (Temurah 4b) that when one violates a Torah prohibition, his actions do not take effect halachically. The Sefer Hachinuch (#339) writes that when the sale is forever, both buyer and seller deserve malkot. The Mishneh Lamelech (ad loc.) asks on this based on the Rambam regarding a forbidden sale of ma’aser beheima (Bechorot 6:5) that there are not malkot. The Rambam learns from the language, “it should not be redeemed,” that the sale does not take effect and assumes, as a result, that the violator does not receive malkot.
The Ramban, in commenting on the Rambam’s mention (Sefer Hamitzvot, Lo Ta’aseh 227) of the prohibition of selling land in Eretz Yisrael permanently, makes the following contention. One is not required to actively limit the sale. Rather, whatever he does, the Torah decrees that the sale will not be permanent. This, in fact, is the Bahag’s approach, that the pasuk is stating a fact, not creating a prohibition. The Ramban explains that the Rambam must mean that the prohibition is violated when one says explicitly that the sale should be permanent and indeed this stipulation does not work because of Rava’s general rule that violations of the Torah do not take effect. The Ramban mentions that according to Rashi, the violation is on the buyer, if and when he tries to prevent the seller from recovering the field after yovel. The Ramban himself understands that there is a prohibition; however it is only addressed to the seller in a case where he sells the land outright to a non-Jew, who, not being bound by the Torah, will not return the field.
All of these explanations emanate from the pasuk’s surprising use of the passive voice, “it will not be sold,” as opposed to the direct, “do not sell.” The Rambam’s approach here is to say that the indirect manner of writing indicates that anyone who is involved in the sale is in violation, not just the seller or the buyer individually.
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