A Tora View of
Property
Rabbi Yaakov
Bieler
Parshiot
Behar-BeChukotai, 5766
A significant portion of Parshat
Behar (VaYikra 25:1-24) is devoted to the laws of “Shmita” (the
Sabbatical Year) and “Yovel” (the Jubilee Year). Essentially, these
Jewish institutions affecting those living in the
land of Israel appear to reflect the essential
limitations upon, if not the outright fallacy of, one’s
“ownership” of real estate and Jewish servants.[1]
If land really belonged to a person, he should be able to do with his
possessions whatever he pleased, including either improving or destroying it in
accordance with his desires, without outside restriction. Similarly, if the
master absolutely owned his slave, the latter should be forced to continue to
serve until whenever the master no longer wished him to do so, including the
possibility that he will be enslaved forever. Furthermore, the master should be
able to assign to his slave any type of work that he wanted, regardless of how
undignified or difficult it might prove to be. The laws of “Shmita” and “Yovel”
clearly reflect the lack of unlimited control by an “owner” of both land in
Israel that has come into his possession by means of e.g., inheritance,
acquisition, receiving a gift, or the default of a loan, as well as the
Jewish servant whose debts or thievery the master has paid off,[2]
in the following ways:
a) 25:4-5 During
“Shmita” no agricultural activities, e.g., planting, fertilizing, harvesting,
etc. can take place.
b) 25:6-7 All things
that grow in the fields during “Shmita” are to be made available to all who wish
to consume them, as opposed to being considered the property of the “owner” of
the field and therefore to be sold or dispensed with in accordance with only his
wishes and for his exclusive benefit.
c) 25:10, 13-17 During “Yovel”
(the 50th year of seven “Shmita” cycles consisting of seven years
each), any land that had been sold since the last “Yovel” is to be returned to
the family to which it had been originally assigned when the land was
distributed to the 9 ½ tribes when they entered the land under the leadership of
Yehoshua.
d) 25:10, 40-41[3]
Paralleling the repatriation of land that had been sold to someone outside of
the tribe to which it had originally been assigned during the days of the
conquest of the land of Israel, any “Eved Ivri” (a Jewish indentured servant)
who had opted upon the completion of his 6 years of service to remain with his
master and became a “Nirtza” (one with a pierced ear, indicating the extension
of his servitude—see Shemot 21:5-6), must now be released by his master and be
enabled to return to his family.
d) 25:11-12 During “Yovel” the same rules
regarding agricultural activities and the distribution of produce as described
for “Shmita” in 25:4-7 above, similarly apply. (In addition to being a
50th year, “Yovel” is a “Shmita” year as well.)[4]
VaYikra 25:23 articulates the
theological foundation for the laws of “Shmita” and “Yovel”, when the
Tora states:
VaYikra
25:23
And the land you will not sell
indefinitely, “Ki Lee HaAretz” (because the land is Mine), for you are
sojourners and residents with Me.
This verse serves as a bridge
between the laws of the Sabbatical and Jubilee Years in the first section of
VaYikra 25, and additional rules governing the sale of real estate in the
land of Israel, as well as loans[5]
to the poor discussed in subsequent verses:
e) 25:24, 26-27 Even if a person finding himself in
reduced circumstances opts to sell property that has been his family’s holdings
since the time of Yehoshua, he or a relative retains the option of repurchasing
it even before the advent of “Yovel” should he obtain the means to do so. The
land can be repurchased despite objections by the buyer. The price will be
pro-rated in terms of when “Yovel” will occur, i.e., the price paid was not in
order to out-and-out “purchase” the land, but rather to merely utilize it until
“Yovel” would require it being returned to the original owner or his
descendents. Consequently, when the price is divided by the number of years
remaining until “Yovel”, the ever-shrinking repurchase price can be determined
at any point in time.
f) 25:25 If
the original seller cannot afford to repurchase the land prior to “Yovel”, his
relative can do so from the buyer.
g) 25:28 If
the seller does not have the money, and there is no relative who can rebuy the
land, then it will remain in the possession of the purchaser up until, but not
beyond, “Yovel”.
h) 25:29-30 Whereas 25:24-28 applies to the
sale of fields, were one to sell a house within a walled city, the option to
repurchase it lasts for only one year from the time of the sale. Should that
year pass without repurchase, the house is deemed an irrevocable purchase, and
does not return to the original owner even during “Yovel”.
i) 25:31 The
sale of a house that is in an open area, as opposed to a walled city, is treated
in the same manner as the sale of a field. See e), f) and g)
above.
j) 25:32-34 Since the Levi’im were never
given fields, but only cities, these cities, the houses within them as well as
the fields around them, will always be susceptible to
repurchase.
k) 25:35 If a
person is needy, you must assist him monetarily. (Certainly, if your own funds
are not really “yours” but rather HaShem’s, giving charity should become that
much easier.)
l) 25:36-37 When you lend money to “your
brother”, you should not charge him interest.
Sometimes an individual’s debts
become so insurmountable, his obtaining loans will not suffice to satisfy his
creditors or the judgments that the courts render against him. In these
circumstances, he indentures himself, and repays his benefactor’s kindness by
engaging in work either for six years, or until “Yovel”.
m) 25:39-40, 43, 46 If a fellow
Jew becomes so impoverished that he has to indenture himself to you upon your
paying his debts, you must not demand from him humiliating types of work, but
rather treat him as you would a day laborer or a contractor.
n) 25:44-46 Regarding non-Jewish servants, the
text states that they are never to be freed and they are inherited from one
generation to another. As far as the types of work they can be assigned is
concerned, while nothing is stated explicitly, the reiteration by the text of
how Jewish servants are not to be asked to do breaking work—“Lo Tirdeh Bo
BeFarech”—suggests that no such limitation applies to non-Jewish servants.
o) 25:47-54 Finally the Tora deals with
situations whereby an impoverished Jew is unable to find a Jewish master, and
instead has to indenture himself to a non-Jew, the extreme case being where in
return for repayment of his debts he must work on behalf of an idolatrous
temple. The Tora strongly advocates that either a relative or some fellow Jew
monetarily redeem[6]
him from such a situation by paying a fair price to his master, probably out of
a concern that his Judaism will be compromised should he have to work in such a
setting for any length of time, with the worst case scenario being that he will
remain a slave until “Yovel”.
Just as the Tora offers a
theological lense through which to understand the laws regarding “owning”
land in Israel, i.e., “Ki Lee HaAretz”, it does
the same when discussing the reasons for the limitations applied to one Jew
“owning” another:
VaYikra 25:42,
55
Because “Avodai Heim” (they
are My Servants) that I Took out of the land of Egypt, they should not be sold as the
selling of a slave.
Because “Li Bnai Yisrael
Avadim, Avodai Heim” that I Took them out of the
land of Egypt, I am the Lord your God.
While it is understandable that
HaShem Imposes rules governing how “His Land”, i.e., Israel, is to be possessed
by the Jews, and how “His People” are to be possessed by one another, it is
curious that there are no broader applications for the important theological
concept represented poetically by the following verse:
Tehillim 24:1
…The earth is the Lord’s and the
fullness thereof, the world and they that dwell in it.[7],[8]
“Shmita” and “Yovel” are defined
as “Mitzvot HaTeluyot BaAretz” (Commandments that are dependent upon the
land of Israel) and consequently do not apply,
certainly on a Tora level of obligation, to other areas of the earth. Therefore,
when the Tora gives the reason for these Mitzvot, “Kee Li HaAretz”, the text is
clearly not referring to the entire earth, but rather to only to
Israel.
But by limiting the laws to only
Israel and to only Jewish slaves, is the
purpose of such Commandments, communicating an enlightened spiritual conception
of property, communicating the manner in which Jews are to view all matters of
property being successfully achieved? Consider the rationale for these
Mitzvot offered by Rabbeinu Bachya:
Sefer HaChinuch #330 “The Mitzva
of Counting 7 7-Year Cycles” (“Yovel”)
…Among the roots of the
Commandment… is that HaShem Wished to Make known to His People that everything
belongs to Him, and in the end all things will return to those to whom He Wished
to give them at the outset, because the earth is His, as it is written, (Shemot
19:5) “Ki Lee Kol HaAretz”.[9]
And with this Commandment of counting 49 years, they will distance themselves
from the possibility of stealing land from their friends, and even from lusting
after the property of their friends, once they internalize the idea that all
things will be given to whomever HaShem Wishes to have them.[10]
And this matter of “Yovel” is
similar to what is done in secular kingdoms where land is taken from time to
time from fortified cities that are owned by individual rulers, in order to
remind them of their obeisance to the overall master.
So too in this matter, HaShem
Wished that all real estate that originates from HaShem Granting it to a
particular individual or family, as well as every servant belonging to another
person to go out from his possession and enter into the possession of its/His
Creator.
Certainly the secular kings do
this to foster their fear in the eyes of those beneath them and to discourage
revolts against them. HaShem, may He be Blessed, Wishes to be good to them by
virtue of His Great Goodness…[11]
It is unclear how this lesson is
to be learned by a Jew who lives in the Diaspora, who has no direct relationship
with any of the Commandments that are functions of the
land of Israel, except when he happens to be
temporarily visiting, or purchases some exported produce? And even the Jew
residing in Israel, as long as he is entitled to
keep non-Jewish slaves who are not the beneficiaries of any of these privileges
of being spared humiliating work and having a no-fault date by which they must
go free, how will he learn about the limitations regarding “owning” another
human being? And if Jews are to serve as an “Ohr LaGoyim” (a light unto the
nations), what is expected of the non-Jewish world in terms of reflecting not
only about the theological aspects of monotheism, which are incumbent upon them
as part of the Seven Noachide Commandments, but also the economics of monotheism
that suggest a particular approach with respect to how to view all forms of
property?
Even if immediate expansions upon
this lesson cannot be recognized, perhaps we have to wonder about what will take
place during the Messianic period. Will the reason why there will be no
more war is because of a new attitude towards possessions and economic
competition? Furthermore, with regard to the present day, although
some of these economic laws are interpreted as being obligatory vis-à-vis only
other Jews, e.g., taking interest on loans, is it a positive value to
optionally apply the same standard to others, particularly when they are
impoverished and the loan is an act of kindness and compassion? RaMBaM in
Mishna Tora, Hilchot Avadim 9:8 posits that while it may be permitted to give a
non-Jewish slave difficult and even degrading work, that does not mean that one
cannot opt to nevertheless act with compassion and not do so. And as for some of the agricultural
Commandments concerning finding ways to transfer part of one’s produce to the
poor, can’t one do so even if he is not obligated? If we presume that Halacha is
not just a collection of rules and obligations, but also a philosophy of life
and ethics, the laws of “Shmitta” and “Yovel” have much to teach us even if we
live outside of Israel and never planted or harvested
anything in our lives.
Shabbat Shalom, and may the ideal
society of which we dream, come to fruition in our days.
[1] Based upon VaYikra 25:46, the
Talmud analogizes between non-Jewish servants and real estate in the
land of Israel in terms of how they are acquired,
and by extension the degree to which they are “owned”:
Kiddushin
22b
Mishna: A non-Jewish slave is acquired by
money, deed or “Chazaka”…
(The Gemora explains that “Chazaka”
i.e., actions that demonstrate the master-servant relationship, include
unloosening the shoes of the purchaser, carrying his baggage after him to the
baths, washing him, etc.
“Chazaka” is also a means for
acquiring real estate, as reflected in RaMBaM, Mishna Tora, Hilchot
Mechira 1:8 “…once the purchaser
locks the property, or puts up a fence, or partially breaks a fence, and by
doing so he is bringing benefit to the piece of property, then the acquisition
is considered legally completed…)
Gemora: How do we know this (that a
non-Jewish slave is acquired by “Chazaka”?
Because it is written, (VaYikra
25:46) “And you will make them (the non-Jewish slaves) an inheritance of your
children after you, to possess as an inheritance”. Just as a field of possession
is acquired by “Chazaka”, so too is a non-Jewish slave acquired by money, deed
or “Chazaka”…
No such analogy is made between
real estate in the land of Israel and a Jewish slave, as indicated
by the absence of “Chazaka” as one of the means by which such a servant can be
acquired:
Kiddushin
14b
Mishna: A Jewish slave is acquired by money
and by deed…
[2] Mechilta
(Midrash Halacha on Shemot) on Shemot 21:2 “When you acquire a Jewish
slave, six years he will work, and in the seventh he will go out free, for no
monetary remuneration.”
The verse is referring to someone
who has been sold by the court (as a result of his being convicted of thievery
and not having the resources to repay what he stole). But the situation of one
who sells himself, that is referred to in VaYikra 25:39 “If a fellow Jew becomes
so impoverished that he has to indenture himself to you upon your paying his
debts, you must not demand from him humiliating types of
work”.
[3] Although there is an aspect of
“Eved Ivri” (a Jewish servant) that is tied to “Yovel”, i.e., the need for such
an individual to eventually go free at “Yovel” even if he freely chose to remain
beyond the original six years of
servitude that indenturing oneself normally entails, other laws pertaining to
“Eved Ivri”, e.g., the type of work which he can be assigned, and his overall
situation in contrast to that of an “Eved Kena’ani” (a non-Jewish servant), is
discussed later in this chapter, 25:39-54.
[4] There is actually a controversy as
to whether “Yovel” is merely the 49th year of the 7th
“Shmita” cycle, or the 50th year, the latter possibility resulting in
having in effect two “Shmita” years in a row with respect to allowing the land
to lie fallow. If dealing with a single “Shmita” year was a test of faith—see www.kmsynagogue.org/Behar1.html
“Crises of Faith for Only the Farmer?”— in terms of requiring the food that was
grown in the 6th year of the cycle to suffice for the 6th,
7th and the first part of the 8th until new crops can be
planted and harvested (see 25:20-22), one can imagine how much more difficult
would be having to endure two consecutive such years, with the 6th
year then having to produce enough for the 6th, 7th,
8th and the early 9th!
[5] While the phrase in 25:23 “Ki Lee
HaAretz” would appear to refer to land rather than money, if real estate is
viewed as merely an example of the types of possessions that an individual
typically might have, then other cases including money and servants become
equally relevant. The suggestion is not only does man not “own” land, he “owns”
nothing else either.
[6] Just as the price of real estate is
pro-rated in terms of the number of years left until “Shmita” (see e) above), so
too in terms of the redemption of the Jewish slave from his non-Jewish master, a
calculation is made regarding the number of years remaining until “Yovel” when
he would have gone free automatically, thereby compensating the master for the
years of servitude that he had counted on when he engaged the Jewish
slave.
[7] Although RaShI, and even MaLBIM,
due to the Midrashim of ChaZaL, interpret the verse, as well as the rest of this
particular Tehilla as also speaking only about the land of Israel paralleling
VaYikra 25:23, such an interpretation does not seem to reflect the text’s simple
meaning, and Ibn Ezra, R. S.R. Hirsch and Da’at Mikra understand the verse as
applying to the entire world.
[8] At least one interpretation in the
Oral Tradition also does not see the verse as limited to the
[9] The verse cited by the Chinuch
appears prior to the giving of the Tora at Sinai. When Moshe presents HaShem’s
Proposal to the people to become His “Segula” (treasure) from amongst all the
people, he says in HaShem’s Name, “Kee Li Kol HaAretz” (the entire earth is
Mine). Commentators on the verse understand the reference not to refer to
territory—how is a particular land relevant to these newly free slave who find
themselves at the foot of a mountain in the midst of a desert?—but rather the
peoples that inhabit the earth. Therefore the sense of this verse is, “I have
the right to choose you to be My Treasure from among all other peoples because
all peoples (on the earth) belong to Me (and I can do with them as I
Choose).” A much more appropriate verse both contextually as well as from the
perspective of VaYikra 25 wherein the topics of “Shmita” and “Yovel” appear is
25:23, “Kee Li HaAretz”. However the obvious drawback becomes the absence of the
word “Kol” (all). If HaShem Wishes to demonstrate that the entire earth is His,
then why limit Himself to the
[10] RaShI’s first comment on Beraishit
reflects a similar perspective:
RaShI on Beraishit
1:1
Rabbi Yitzchak said: The Tora
should have commenced with Shemot 12:1 “This month shall be unto you the first
of the months” (since the Tora is a book of laws, and this is the first law
officially given to the Jews once they became a nation by leaving
[11] RaMBaM, whom the author of the
Chinuch considered his major influence, states a similar general outlook upon
Mitzvot in the Mishna Tora.
RaMBaM, Mishna Tora, Hilchot Temura
4:13
…And all of these matters are
intended to mold (positively) one’s inclinations and to improve his attitudes,
since most of the Commandments of the Tora are far-flung recommendations on a
high level of advice to improve attitudes and to straighten all
actions.