Thursday, May 12, 2011

Returning land in Yovel

When a person brings bikkurim, they read the pessukim of arami oved avi in which they thank Hashem for both the fruit and also the land:
וְעַתָּה הִנֵּה הֵבֵאתִי אֶת רֵאשִׁית פְּרִי הָאֲדָמָה אֲשֶׁר נָתַתָּה לִּי ה'
"And now behold I have brought the first fruits of the land that you have given me, Hashem."
Subsequently, in order to bring bikkurim and also read the pessukim in the Beis Hamikdash, the grower has to own both the produce as well as the land which the produce was grown on.

If someone buys land at a time of Yovel, then the person who bought the land only owns the land till Yovel, and they are not the permanent owner of the land. Do we say that this person can read the pessukim and thank Hashem for the land because he is currently the owner of the land, or do we say that because he will have to give the land back in Yovel he is only a tempoary owner of the land? The gemara in Gittin (48a) explains that the answer to this question depends on a machlokess between Resh Lokish and Rebbi Yochanan.

According to Rebbi Yochanan, someone who has use of land is considered the owner, therefore in this case he can bring bikkurim and also read the pessukim. According to Reish Lokish he is not considered to be the owner and so cannot read the pessukim;
המוכר שדהו בזמן שהיובל נוהג ר' יוחנן אמר מביא וקורא ר"ל אמר מביא ואינו קורא רבי יוחנן אמר מביא וקורא קנין פירות כקנין הגוף דמי ר"ל אמר מביא ואינו קורא קנין פירות לאו כקנין הגוף דמי
"Someone who sells his field at the time that Yovel applies; Rebbi Yochanan says that the purchaser can bring bikkurim and also say the pessukim of mikra bikkurim. Reish Lokish says that the purchaser can bring bikkurim but cannot read the pessukim of mikra bikkurim. Rebbi Yochanan is of the opinion that the person who owns the produce of the land is called the owner although he does not own the land itself. Reish Lokish says becuase he only owns the produce of the land, he is not the owner."

The gemara explains that even according to Rebbi Yochanan, in the first Yovel cycle after the benei yisroel entered Eretz Yisroel, the purchaser of the land would have been able to bring bikkurim and also read the pessukim. This is because at that time, people did not really believe that the fields would be returned when Yovel came, so they sold them permanently.

The chachamim say in Rosh Hashana (9b) that the 50th year of the Shemittah cycle is not automatically yovel. Rather, there are three things that have to be done in order for the 50th year to become yovel; 
1)      The beis din hagadol in Yerusholayim has to blow the shofar on Yom Kippur and declare that this year is yovel
2)      Owners of slaves have to set them free and
3)      Land has to be returned to its original owners
If any of these things do not happen at all, for example, there have been no slaves sold, so none can be set free, then the 50th year is not yovel and there is no issur to plough the land or do any other agricultural work that year. The Rambam quotes this gemara as the halacha.

The Chazon Ish asks; we know from the gemara in Gittin that people only sold land permanently in the first Yovel cycle. After the first Yovel they only sold the produce of their land till the next Yovel but not the land itself. If so, there should never have been a yovel after the first one because it was not Yovel that caused the land to be returned to its original owner. The reason that the land was returned is because it was only ever originally sold until Yovel. When Yovel came, there was no land to return because the land had only ever been sold until that date. Since the gemara in Rosh Hashana says that returning land is a condition to making the 50th year become Yovel, there should never have been any years of yovel after the first Yovel which Yehoshua made when the benei yisroel came into Eretz Yisroel?

The Chazon Ish answers as follows;

There are two aspects to ownership.
    1) There is the technical aspect of ownership. This depends on who has made a kinyan on the land.
    2) There is also effective ownership. Who effectively owns the land? It is possible that someone could technically be the land owner, but becuase they are not the effective owner and will loose it for some reason, they still are not called the owner of the land.

The Chazon Ish explains that the gemara in Gittin does not mean that people only ever sold the land till yovel. The gemara agrees that even after the first yovel, people sold the land itself, not only its produce. As the gemara says;
...דאי איתמר בההיא, בההיא קאמר ריש לקיש דכי קא נחית אדעתא דפירא קא נחית אבל בהך דאדעתא דגופיה קא נחית אימא מודי ליה לר' יוחנן... צריכא
“It is possible that even Reish Lokish [who says that ownership of the produce does not make the purchaser be called the owner] would agree with Rabbi Yochanan in the case of Yovel [that the purchaser is called the owner] because when he enters the land he intends to enter the actual land…”
Instead, what the gemara means to say is that although the purchaser makes a monetary kinyan on the actual land, he still intends to fulfil the mitzvah to return the land when yovel comes. He has done two contradictory things. On the one hand, he has bought the actual land, which should make him the owner. On the other hand, he intends to fulfil the mitzvah to return the land in yovel. Although his intention to fulfil the mitzvah has no monetary repurcussion now, it still stops him from being called the land owner.

This is because ownership (baalus) depends on effective use. Although the purchaser is the technical owner of the land, he limits his own ba'alus (right to be called the owner) with his intention to return the land in yovel which means that practicaly speaking, he is not the permanent enduring owner of the land. Although  the gemara compares this case to the machlokess of Rebbi Yochanan and Reish Lokish, this does not mean to say that this is exactly the same as other cases that they discuss, where the person only bought the produce and not the land. Rather, he did buy the land, but he is still not the effective owner forever, so the halacha for this case is comparable to a case where he never bought the land in the first place.

For example; what would happen if someone bought land in the time of yovel and then the beis hamikdash  was destroyed and yovel never came? According to a simple understanding of the gemara, he would still have had to return the land becuase he only bought the kinyan peiros in the land till yovel. According to the Chazon Ish, he would not return the land because he bought the guf hakarka, not just a kinyan peiros. He intended to fulfil a mitzva of returning the land, but that mitzva never came about.

Subsequently, when yovel comes, it is yovel that makes the land go back to the original owner. The guf hakarka (actual land) was sold, and not just the produce of the land. This is why yovel was kept even after the first yovel because all three conditions; blowing the shofar, returning land and freeing slaves, were fulfilled.

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