Class Notes - Class #23

The mitzvot for this class add to our understanding of shmittah, the seventh year, and yovel, the jubilee.

Each seventh year we are required to refrain agricultural work growing crops in Israel.  During that year, whatever grows of its own is ownerless and may be taken by anyone even if it is growing on land owned by a particular person.  But someone picking that produce may only take small quantities for short term use. We will see later in our study that certain debts are also forgiven in shmittah.  Mitzvah #84 makes any food that grows of its own during shmittah “hefker”, ownerless.  We did an overview of shmittah when we studied that mitzvah.

            Mitzvot #326 – 329 document what we learned earlier about shmittah.  Mitzvah #326 prohibits working the soil during shmittah.  Mitzvah #327 prohibits doing agricultural work on trees during shmittah.  Mitzvah #328 prohibits someone picking grains and vegetables from taking more than one needs for short term use.  Mitzvah #329 prohibits harvesting tree fruit more than one needs for short term use.

These mitzvot only apply to food growing in Israel. According to the author, these mitzvot only apply d’oraita when the Temple was functioning.  (There are other rishonim who disagree.) D’rabanan, though, they apply now as well. They only apply when the Jews are living in Israel.  The author has used that criterion before but has not defined what it means.  Some of the prohibitions apply to certain crops planted in the year before shmittah.

D’oraita someone who violates these mitzvot and plants crops during shmittah may eat what was planted.  But the crop he planted is subject to the same restrictions as other shmittah produce; he can only take what he needs for short term use, he may not harvest is for use later.  The rabbis forbade eating the produce of annuals that grow spontaneously during shmittah lest that serve as a screen for people who plant improperly.  We saw earlier that there is historical evidence in the writings of Josephus that the Jews observed shmittah during the Second Temple period.  It is astounding that the rabbis would extend shmittah prohibitions and prohibit eating food the Torah would permit.

            Mitzvah #329 prohibits harvesting tree fruit for long term use.  The author adds that this mitzvah also prohibits harvesting tree fruit in the normal manner.  Rather, the fruit picker should make some change in the normal procedure to reinforce the notion that the fruit is actually hefker.  For example, the picker should use an ordinary knife rather than a specialized tool to cut the fruit off the tree.  Olives and grapes should be pressed in small presses rather than the usual large presses.

            The source verse for this mitzvah, Lev.25:5, prohibits harvesting grapes that are “n’zirecha.”  Our author paraphrases Ramban’s explanation of three different ways to understand that unusual word.  According to Rashi, the verse prohibits gathering grapes that have not been made hefker.  If someone guards fruit trees, not making them hefker, it would be forbidden for anyone to pick and use the fruit.  But if someone guards fruit trees for a while and then makes the fruit hefker, according to Rashi that fruit may be used.  The midrash halachah suggests that one may not pick tree fruit that has not become hefker although it is not actually forbidden to eat the fruit.  Ramban himself understands the verse to refer to an untended tree or grape vine.  One may not harvest fruit from untended trees or vines in the normal way during shmittah.  If we may not harvest untended trees in the normal way, we certainly may not harvest tended trees in the normal way.

 

Mitzvot #330 – 335 and 339 – 341 regulate yovel, the jubilee year that occurs every fifty years.  We count seven shmittah cycles, seven sets of seven years, and the following year is yovel.  Yovel has all of the restrictions of shmittah.  In addition, all Jewish slaves go free in yovel, and land in Israel that has been sold returns to its prior owners or their heirs.

            Mitzvah #332 is a positive mitzvah to sanctify yovel by observing its various requirements. Our author compares yovel to shmittah.  Yovel has all of the prohibitions of shmittah, and violation of those prohibitions is subject to the same punishments. Mitzvot #333 – 335 document the agricultural prohibitions of yovel.  Yovel also involves freedom for Jewish slaves and reversion of land ownership.  Shmittah involves forgiveness of certain debts.  Like shmittah, yovel applies in Israel when “all of its [Jewish] inhabitants are there.” 

Mitzvah #330 is a positive mitzvah to count seven cycles of seven years.  In mitzvah #332 the author explains that yovel was an extra year added between the seven year shmittah cycles.  Thus, there would be seven shmittah cycles, taking up 49 years.  Yovel would be the next year, year 50.  Then, the following year, year 51, would be the first year of the next seven year shmittah cycle.

In discussing the shoresh for the mitzvot of yovel the author expands on the notions he formulated about shmittah.   Just as Shabbat commemorates God’s creation in seven day cycles, and shmittah celebrates God’s creation in seven year cycles, yovel celebrates God’s creation in seven cycles of seven years.  Because we refrain from agricultural work in shmittah and yovel, and rely only on what grows of itself, we are reminded that our sustenance comes not only from our own efforts but from God.  And we learn in a radical way that we are dependent on God for our needs.  During shmitah and yovel, we have no choice but to trust in God.

Here our author explains that if we know that land will ultimately revert to its original owner we will be less tempted to try to take it illicitly.  Yovel also helps us see God as the owner and ruler of our world.  A human king might take land or slaves away from their owners to remind the owners that ultimately the king is in charge.  Similarly, in yovel, when land reverts to its original owners and Jewish slaves are freed, we are reminded that ultimately everything we have belongs to God.  That reminder occurs not only during yovel, but also year by year as the Sanhedrin keeps count.  But our author points out a flaw in this analogy between human kings and God.  Human kings show their power for fear others will rebel against them, whereas this reminder that God owns everything is for our benefit, so we will understand and therefore behave properly.

The author also mentions that the mystical tradition has wondrous explanations of yovel, as well as explanations of other sets of seven like the days of the week, the years of the shmittah cycle, and the days of Passover and Succot.  We have Biblical stories where there are seven crucial items:  Abraham give Avimelech seven ewes as a sign that Abraham dug a disputed well, and Balaam built seven altars in the hope of receiving a revelation from God.  We have seen the author make similar statements about the mystic tradition.  Here, though, there are two new elements.  First, the author says the mystics do not reveal their secret understandings to just anyone and that the mystics have not revealed their special understanding “to us.”  Second, the author expresses the hope that his son would surpass him and achieve greater understanding. And then he adds that he, our author, has already completed his task of triggering his son’s interest and provoking him to ask questions.  What a wonderful moment.

Our author discusses cases where mitzvot sound like they would have parallel implementation but in fact do not.  There are several mitzvot that would seem to require counting.  Earlier we saw mitzvah #306 which requires us to count the days from the omer sacrifice until Shavuot.  Someone who observes that mitzvah counts each day, one day at a time.  We also saw that a zav or zavah waits seven days before becoming tahor.  The source verse for that, Lev. 15:13, says the tamei person should count those seven days.  But in fact the zav or zavah need not count explicitly, but only need keep track to make sure seven days have passed.  The obligation to count seven cycles of seven years to the yovel is an obligation on the Sanhedrin, where the years to yovel were counted year by year. 

Similarly, there are several mitzvot that require us to “remember” something, but each of those mitzvot is implemented differently.  We are told to remember Amalek in Deut. 25:17; we do that by reading the Biblical passage about Amalek.  We are told in Ex. 13:3 to remember the exodus from Egypt; we do that by mentioning it in sh’ma.  We are told in Deut. 24:9 to remember what God did to Miriam; we do not do that systematically at all.

Our author explains that these differences are part of our ancient tradition of Biblical interpretation.  He notes that sometimes that interpretation is embedded in midrash halalchah and other tana’itic literature.  Sometimes, though, we know an interpretation because that is how the Jewish community behaves, and we assume that widespread Jewish practice is proper.  The system of halachah is based on the wide array of interpretations that mostly appear for the first time in tana’itic literature.  Our author says that if we accept that, we will find the ways of the Torah true and pleasant.

Our author goes into detail about when the mitzvot of yovel apply.  When the Jews entered Israel they began to conquer.  Under Joshua’s leadership the conquered land was divided between the tribes.  The tribes divided their allocation among families and families divided their allocation among individuals.  At that point the mitzvot of yovel began to apply.  Every yovel, the land that had been sold during the preceding 49 years reverts to its original owner so yovel works well as long as all the tribes stayed put.  But when the tribes of Reuben and Gad were first exiled, before the destruction of the first Temple, that system broke down and the mitzvot of yovel were suspended.  This description apparently explains what our author has meant when he said certain mitzvot only apply in Israel when all the Jews are there:  that each tribe is living in Israel in its designated area.  When yovel is not in effect, d’oraita the obligations to leave the land fallow and remit debts in shmittah are also suspended.  Those obligations continue d’rabanan, however.

The author ends this essay by identifying the year of the next upcoming shmittah.  According to Rashi that year is 1257, but according to Rabbenu Hananel that year is 1258.  This is how we know when Sefer haHinnuch was written.

Mitzvah #331 requires the Sanhedrin to blow the shofar on Yom Kippur of yovel.  Shmittah and yovel begin on Rosh haShannah, and the Jewish slaves are free as of that day.  But the source verse for this mitzvah, Lev. 25:9-10, requires us to blow the shofar to “proclaim liberty throughout the land.”  During the days between Rosh haShannah and Yom Kippur, the slaves stay with their masters, but are free from work and are supported by the master.  Then, when the shofar was blown on Yom Kippur, the slaves were free to leave.

The ritual and blessing for blowing the shofar on Yom Kippur of yovel is basically the same as for any Rosh haShannah.  There is one difference, though.  When Rosh haShannah falls on Shabbat, the shofar is only blown in the presence of the Sanhedrin.  But when Yom Kippur of yovel falls on Shabbat, provided that the Sanhedrin is still functioning, each individual would blow the shofar.  That last point sits awkwardly with the statement at the end of this essay that the mitzvot of yovel is entrusted to the Sanhedrin.  This is clarified in mitzvah/essay #332, where the author explains that the Sanhedrin would gather and sound the shofar, after which individuals all over Israel would sound the shofar as well.  That sounds like a dramatic proclamation of liberty indeed.

Although the ritual and the blessing of blowing the shofar are the same as for a regular Rosh haShannah, the meaning of the ritual is entirely different.  The Jewish slaves who go free in yovel need not buy their freedom, so masters are suffering significant financial loss.  The Torah mandates a prominent public ritual; masters will find it easier to free their slaves if that action feels like part of a national movement rather than a personal loss.  We noted earlier that people became slaves because they could not support themselves.  The public ritual also helps slaves to accept the freedom that they might hesitate to embrace.

Just as the Jewish slaves go free when the shofar is blown, land reverts to its original owners or their heirs when the shofar is blown.  The original owner need not pay for the land.  Mitzvot #339 – 341 cover how that land reallocation works.  Mitzvah #339 prohibits permanently selling or buying land in Israel.  Mitzvah #340 requires someone who has bought land to return it to its original owner in yovel.  Mitzvah #341 allows someone who sold inherited land in a walled city to redeem it from the buyer within a year after the sale.

Halachic discussions about land changing hands discuss rental and sale.  A rental is a short term transfer of the right to use land.  A sale is a long term transfer of the land which entitles the buyer to use the land and transfer his or her rights to the land.  But the sale is not permanent.  When yovel comes, the land reverts to the seller.  In effect, all transfer of land in Israel is rental.  The rubric of the land reverting to its original owner varies based on the type of land.  Rural land works differently from developed urban land and land in walled cities works differently from land in unwalled cities.  (We will first discuss rural land and then discuss urban land.) Also, when someone sells his or her ancestral land, the seller may have the opportunity to “redeem” that land from the buyer even if the buyer objects.

In mitzvah/essay #339 the author explains that some land is called “s’dot ahuzah,” “heritage field.”  That land was allocated in Joshua’s original allocation and belongs to the heirs of the original owner.  A husband might also gain s’dot ahuzah if his wife inherits land from her father and her husband then inherits the land from her.  Someone who sells s’dot ahuzah has the opportunity to redeem the land from the buyer after two years even if the buyer does not want to give up the land.  Distinguish that from “s’dot mikneh,” “purchased fields,” land which was obtained by purchase.  If that buyer then sells the land to a second buyer, the first buyer cannot redeem it unless the second buyer agrees.  Both types of land revert to their original owner when yovel comes.

Our author explains that someone who sells inherited land in Israel should only sell it if the sale is absolutely necessary.  If the seller wants to reclaim the land, the seller has the right to “redeem” s’dot ahuzah even if the buyer objects. Even certain relatives of the original owner can redeem the land so that the same family continues to own the land.  But the seller can only do that under limited circumstances. 

1.  The seller cannot redeem the land in the first two years after the sale even if the buyer is willing.  The author explains that the seller will be discouraged from selling the land if the seller knows he or she cannot get the land back for at least two years. The two year period must include at least two growing seasons, a period that would allow the buyer to harvest two crops.  If there was a drought or some condition that wiped out crops during that time, the time is extended through another growing season.  But if shmittah intervenes so the buyer is prohibited from planting and harvesting a crop, the time counts toward the two year requirement.  

2. In yovel, land reverts to its original owner without the owner having to pay for it.  But the buyer can demand payment from a seller who is redeeming land.

3. The seller can only redeem the land using money that was not available to the seller when he or she sold the land. If the seller got a job and earned the money, or received a gift of money after selling the land, the seller can use that money to redeem the land.  But the seller may not use borrowed money to redeem the land. The seller could have taken a loan rather than selling the land.  The loan is not new money, and the seller cannot use it to redeem the sold land.   In mitzvah/essay #339 the author says the seller may not sell land he received as a gift or land he had purchased from someone else to redeem the sold land.  But at the end of mitzvah/essay #341 the author says the seller can sell other things he owns and use the proceeds to redeem the sold land.

According to Rambam, only the seller can redeem sold land, although our author says that other authorities disagree.  If the original owner dies, the heirs may redeem the sold land.  (If the purchaser dies, the original owner can redeem the land from the purchaser’s heirs.) 

According to the author, Rambam interprets mitzvah #339 to prohibit permanent sale of rural land in Israel.  Both buyer and seller are prohibited from engaging in a transaction that purports to sell a field permanently. Whatever the transaction purports to do, rural land in Israel reverts to its original owner in yovel.  The transaction to sell the land permanently does not succeed in doing that.  Rambam explains that a transaction that violated the Torah is void and does not actually take effect.  So a transaction to permanently sell land is void.  Nevertheless, the parties trying to buy or sell the land have violated this mitzvah in trying to do that and are punishable for the attempt.

 Ramban understands this mitzvah differently.  It does not prohibit a futile attempt to sell land permanently.  Rather, it prohibits Jews from selling land in Israel to non-Jews.  That sale would survive yovel, so the seller is making the land permanently unavailable to its original owner. However, if the sale to the non-Jew is temporary so that the land eventually returns to Jewish ownership, the seller does not violate this mitzvah.

The author considers several ways of trying to circumvent the land reverting to its original owner in yovel.  Land that is sold permanently or land that is sold in a transaction that does not specify whether the land is sold permanently reverts to its original owner in yovel. Land reverts to its original owner in yovel even if has been resold several times. But if land is sold for a term of years the land stays with the buyer even if that term of years spans an intervening yovel.  This provides a mechanism for transferring interests in land uninterrupted by yovel.  Of course, that sort of “sale” is clearly a rental.  A purported permanent sale of land that actually takes place during yovel is void and the buyer must return the money to the seller.

Consider a contract that purports to sell land permanently and specifically provides that the sale will survive through yovel.  According to the author, Ramban explains that the provision fails and the land reverts to its original owner in yovel.  The prohibition on selling land permanently applies to both buyer and seller.  Neither buyer nor seller has the power to permanently change the ownership of the land.  The land reverts no matter what the buyer and seller prefer.  That is different from a loan made with the provision that the borrower will repay even after an intervening shmittah that would normally void the loan.  When shmittah comes certain loans are voided. The lender is prohibited from trying to collect from the borrower.  But  the borrower is permitted to decide to repay the loan. So when the borrower accepts the loan on condition that it not be voided in shmittah, the borrower is volunteering to do something the borrower has the right to do, i.e. to repay the loan.

Although land reverts to its original owner in yovel, improvements to the land do not.  So when yovel comes and the original owner regains ownership of sold land, the original owner must pay the purchaser for any improvement the purchaser made to the land.  For example, if someone bought land and planted an orchard on the land, when the land reverts to its original owner in yovel the original owner owes the purchaser for the value of the orchard.  Someone can sell things on land but not the land itself and that sale survives yovel.  For example, if someone sells trees the sale is valid and survives yovel. 

Land in cities follows different rules from rural land, and land in walled cities follow different rules from land in unwalled cities.  The special rules for cities apply to houses or other developed land in cities. Bathhouses, dovecotes or gardens in cities follow special rules for cities, but open land in cities follow the rules for rural areas. 

The institution of land reverting to its original owner is based in the land allocation that happened in Joshua’s time, so a city is considered a walled city if it had walls at the time Joshua distributed land in Israel.  A city only qualifies as a walled city if the walls were built first and then the city was settled; if people built a city and then built walls around it, that city does not qualify as a walled city.  Jerusalem is an exception, though; houses in Jerusalem revert to their original owners in yovel. 

The seller of a house in a walled city has just a year to redeem that house.  After that, the sale is permanent and the house does not return to its original owner in yovel. It does not matter if yovel begins during that year; the house does not revert to the original owner and if the original owner does not redeem the house within a year the sale becomes permanent.  If the buyer sells the house to someone else before the year ends, when the year ends the house belongs permanently to the second buyer. Only the seller can redeem sold houses in walled cities. The seller has to pay the buyer in order to redeem the house.  The seller returns the full purchase price to the buyer, with no allowance for the buyer’s use of the land.  The land must be redeemed all at once.  The seller cannot make partial payments to redeem the land.  The seller can redeem the house at any time during the redemption period.  If the seller cannot find the buyer and time is running out, the seller can put the purchase price in escrow with the beit din and take immediate possession of the house.

 

The seller of a house in an unwalled city can redeem it at any time, during the first year or after the first year.  Houses in unwalled cities return to the original owner at yovel, like s’dot ahuzah.

At the end of mitzvah/essay #340 the author says that when the messiah comes the institutions of shmittah and yovel will be reinstated, and that whatever cities are walled at that time will count as walled cities. This is the second time we have seen our author mention the coming of the messiah.

 

 

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