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Yeshivat Har Etzion

PARASHAT BEHAR

Rav David Silverberg

Parashat Behar introduces the mitzva of yovel, the jubilee year, which occurs once every fifty years and during which all lands must be returned to their original owners. In this context, the Torah writes, "The land must not be sold beyond reclaim, for the land is Mine; for you are but strangers resident with Me" (25:23). According to Rashi, this verse forbids purchasers from refusing to return purchased property on the jubilee year, whereas the Rambam (Hilkhot Shemita Ve-yovel 11:1) and Ramban understand it as forbidding a seller from agreeing to the permanent sale of his property.

This verse also provides the reasoning behind this prohibition: "for the land is Mine; for you are but strangers resident with Me." Seemingly, we are forbidden from making a permanent purchase or sale of property because we must always see ourselves as "resident strangers" on earth. Since the world belongs to the Almighty, we can be described as only guests permitted to reside and make use of His property according to his terms. He therefore forbade permanent acquisitions of land, as a reminder of our lack of independent ownership over any piece of property.

Seforno adds an intriguing insight into this verse, implicitly questioning the principle established here in light of the famous passage in Tehillim (115:16), "The heavens – the heavens belong to the Lord, and the earth He gave to human beings." This verse appears to depict the earth as the possession of human beings, a gift granted to us by the Almighty. Why, then, does God declare here, in Parashat Bechukotai, that we are but "resident strangers" in the land? Seforno explains, very simply, that the aforementioned verse in Tehillim refers to the entire earth except for one small region – Eretz Yisrael. This land, Seforno claims, God kept for Himself, and invited Benei Yisrael to reside there. It is specifically with regard to Eretz Yisrael that we are told, "you are but strangers resident with Me," as emphasized by the prohibition against eternally binding transactions of land in Eretz Yisrael.

Malbim suggests an entirely different approach in understanding the reason given here for this prohibition. The description of man as "strangers resident with me," according to Malbim, refers not to his inferior status on earth, but rather to the temporary nature of his existence on earth. Malbim here invokes the fundamental, Kabbalistic notion that the human soul originates from the Almighty Himself, and in this sense, he explains, man is but a "stranger" on earth. Physical existence is not our primary or even natural state of being; we are "with Me" – rooted in an inherently spiritual existence, and we were brought to earth as a temporary condition. This is the reason given by the Torah for the prohibition against permanent transactions: to remind us that our connection to the land, to physical life, is merely temporary, and that our eternal existence lies in our spiritual essence, which transcends the physical reality that characterizes our life on earth. This prohibition, then, presents the proper perspective on material life in general. Since we are essentially spiritual beings, rooted in an essence that transcends worldly existence, material possessions must be seen as our secondary belongings, of far less importance and significance than the eternal treasures available to us through Torah and mitzvot.

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Yesterday, we discussed the Torah's presentation of the law forbidding the permanent sale of land in Eretz Yisrael. The Torah requires that on the yovel ("jubilee") year, all purchased lands are returned to their original owners. The reason given for this law is, "for the land is Mine; for you are but strangers resident with Me" (25:23). According to most interpretations, this means that we live in the land as but guests of the Almighty, and thus any "ownership" we claim over property is subject to His authority. This concept is reinforced by the Torah's limitation of our power to dispense of or purchase land.

Today we will focus on the verse's final clause: "ki geirim ve-toshavim atem imadi." Literally, this phrase means, "for you are foreigners and residents with Me." These two terms – geirim and toshavim – are generally understood as more or less synonymous, signifying a status of limited authority, due to a temporary condition or tenuous connection to the property in question. However, while the word geirim clearly means "foreigner" and thus indeed refers to an inferior status, one might question whether the same can be said about the term toshavim – residents. In many instances, the verb y.sh.v. appears to denote permanent residence. The most glaring example that comes to mind is the obligation of sukka, which the Torah introduces with the phrase, "ba-sukkot teishvu" (Vayikra 23:42). Chazal famously interpret the word teishvu as a reference to a mode of dwelling resembling residence in one's home ("teishvu ke-ein taduru"). If, indeed, this term refers to permanent residence, how might we interpret the Torah's description of Benei Yisrael's status in Eretz Yisrael as "geirim ve-toshavim"? (A similar question arises concerning Avraham's remarks to the Benei Chet in Bereishit 23:4.)

Rav Yehuda Leib Ginsburg, in his Yalkut Yehuda, suggests that the two terms – geirim and toshavim – refer, respectively, to individual members of Benei Yisrael, and the nation as a whole. Every individual must perceive himself as geir – a foreigner, a temporary resident invited to spend time on and make us of the earth, but without full ownership and authority over his property. Am Yisrael as a nation, however, indeed enjoys the status of toshavim – permanent, full-fledged residents. Eretz Yisrael is the eternal possession of the eternal nation of Am Yisrael, and in this respect, we may and indeed must see ourselves as toshavim, rather than merely geirim.

In this vein, the Yalkut Yehuda explains the reason given in this verse for the prohibition against eternally binding transactions. Although an individual may prefer to relinquish his holdings in the land, the concept of toshavim, that Am Yisrael collectively "owns" the land as a permanent possession, holds him responsible for his progeny, as well. His personal decisions must take into account his descendants, since Eretz Yisrael belongs to them, as well. He therefore has no right to deny his offspring their privileges to his estate, even if he is personally prepared to sell it.

This prohibition, then, relates to the eternal nature of Kenesset Yisrael and the immense responsibility this eternity casts upon each individual member. A Jew's decisions and courses of action must take into account not only his personal aspirations and preferences, and not even only those of the entire current generation of Jews – but rather the nation's future. Each member of Benei Yisrael bears responsibility for future generations, and his personal concerns must therefore give way to the overarching needs of all subsequent generations of Jews.

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We read in Parashat Behar of the mitzva of yovel, the "jubilee" year, which requires the return of purchased land to its original owner as well as the release of all indentured Hebrew servants. The latter obligation is presented in the Torah with the famous expression, "u-kratem deror ba-aretz le-khol yosheveha" – commonly translated as, "you shall proclaim liberty in the land for all its inhabitants" (25:10).

This verse marks the only time in Tanakh where the word deror appears in reference to "liberty" or "freedom." Generally, the word chofshi – or some variation thereof – is employed to mean freedom from bondage. Perhaps most significantly for our discussion, in Parashat Mishpatim, where the Torah calls for the release of indentured servants after six years of work, it writes, "yeitzei la-chofshi" – "he shall go free" (Shemot 23:2; see also Devarim 15:12-13). The Torah appears to distinguish between the release of servants after their sixth year, which it describes with the term chofshi, and the emancipation of servants during the jubilee year, which is referred to as deror. Wherein lies the difference between these two terms, and how does this difference reflect the distinct themes of these halakhot?

Professor Nechama Leibowitz cites from a late 13^th-century work, Chotam Tokhnit, a lengthy discussion regarding these two Hebrew terms. The Chotam Tokhnit essentially defines chofshi as a far more specific, limited condition than the experience of deror. Chofshi describes the elimination of a specific burden or yoke of bondage. A person who undergoes the process described by this term is freed from a particular burden that had weighed upon him until now. Deror, by contrast, refers to an overarching, existential experience of liberty, a state of freedom that encompasses one's entire existence.

On this basis, the Chotam Tokhnit explains the Torah's use of the different terms in reference to the release of a servant after his sixth year, and the general emancipation of servants during yovel. After a servant's sixth year of work, he is given the option of leaving his master's home and regaining his independence. However, as the Torah discusses at the beginning of Parashat Mishpatim, he also has the option of remaining with his master until the jubilee year. The possibility of remaining in one's master's service after the end of the sixth year renders this experience the more limited form of "freedom" – chofshi. The servant has the burden of servitude lifted off his shoulders, but cannot be said to have undergone a fundamental transition to an all-encompassing condition of liberty. There still exists a tinge of servitude, represented by the lingering possibility of his continued service. On the yovel year, by contrast, the entire concept of servitude is thoroughly eliminated from society. A servant is compelled to leave his master and begin a new life of independence. Here we have come to the experience of deror – the existential condition of absolute freedom and liberty. The servant not only enjoys release from his prior responsibilities, but also enters a fundamentally different condition which does not even allow any room for the concept of servitude.

Professor Leibowitz adds that this distinction between the two terms accommodates the different objectives and themes of these two laws. The release of a Hebrew servant after six years of service appears to be intended as a humanitarian gesture, as a means of guaranteeing the servant the restoration of his rights and privileges of independence. When it comes to yovel, however, the Torah speaks of the release of servants in theological, rather than ethical, terms: "For it is to Me that the Israelites are servants: they are My servants, whom I freed from the land of Egypt" (25:55). A master must release the servant in the yovel year not out of sympathy and concern for the servant, but rather as a reminder that his servant – and indeed he himself – belongs to the Almighty, and not to any other human being. This neatly explains the relationship between the two basic obligations of yovel – the release of servants, and the return of purchased land to its original owner. The intent of both laws is one and the same – to reinforce our awareness of the Almighty as the supreme Master over everything – both property and people. The experience of chofshi suffices for the humanitarian need to show concern for the underprivileged and lower classes; the master must allow his servant the option to leave and regain independence. On yovel, however, it is the theological message that must be reinforced, and it is therefore necessary to establish deror – a condition where servitude does not even exist as a theoretical option. In this way, the nation is reminded that they all belong only to God, and any condition of servitude that may exist between people is but temporary and even illusionary, for ultimately, we are the "possession" of no one other than the Creator.

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Twice in Parashat Behar the Torah warns, "al tonu" or "lo tonu" (25:14,17) – "you shall not wrong" another Jew. The immediate context of these warnings is the area of commerce; the Torah calls upon consumers and merchants to buy and sell fairly and not demand inordinately low or high prices for merchandise. This prohibition is known in Talmudic literature as ona'at mamon, or "monetary abuse." But Chazal understood the repetition of this prohibition as establishing a second halakha, known as ona'at devarim, or verbal mistreatment. The Gemara discusses this prohibition in the fourth chapter of Masekhet Bava Metzia (58b), and offers several examples of insensitive speech towards others that violates the prohibition of ona'at devarim.

Later (59a), the Gemara emphasizes one example of ona'at devarim: "A person must always exercise care with regard to the ona'a of his wife, for since her tears are common, her ona'a is common." The Gemara here appears to acknowledge the particular emotional sensitivity of women and therefore urges husbands to exercise extreme care in speaking to their wives. Women's emotional vulnerability, coupled with the ongoing contact and communication between husband and wife, render the context of marriage particularly susceptible to ona'a, and the Gemara therefore issues a specific warning to husbands in this regard.

Rav Avraham Pam zt"l, however, adds a further insight into the Gemara's singling out of this manifestation of ona'a. All too often, people make a point of speaking kindly and courteously to everyone – except for their own family members. Familial closeness naturally removes the masks behind which people often hide during social contact. The closer the relationship between people, the more of their true selves they are willing to expose. Unfortunately, this often results in a significant gap between the home and other social settings in terms of one's manners, courtesy and sensitivity. The Gemara's emphasis on speaking sensitively in the domestic context, Rav Pam suggested, perhaps urges us to avoid such a phenomenon. One's most important and responsibility in the area of interpersonal relations applies to those with whom he is closest, to his immediate family members. It therefore behooves us to display particular sensitivity and courtesy at home, even more so than in other social contexts, in direct contrast to the unfortunately widespread phenomenon of affording greater courtesy to those outside the family.

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Parashat Behar opens with the mitzva of shemitta, requiring the cessation of agricultural activity in Eretz Yisrael during the seventh, or "sabbatical," year. Several different approaches have been taken in identifying the underlying reason behind this obligation. The more familiar explanations involve important theological axioms or religious convictions that this mitzva seeks to convey of reinforce. The Sefer Ha-chinukh, for example, builds upon the obvious connection between shemitta and Shabbat. Just as the weekly cessation from work serves to reinforce our belief in God's having created the world, so does the sabbatical year remind us of the six-day creation process which was followed by God's cessation of creative activity on the seventh. He mentions as well the element of faith and trust in God, which is obviously bolstered by a yearlong break from agricultural work. This theme in reference to shemitta is developed further by the Keli Yakar. Rav Shimshon Refael Hirsch, in his commentary, emphasizes the awareness that the land belongs to the Almighty, and that He merely allows us to settle and cultivate the earth on condition that we abide by His rules.

In sharp contrast to all these approaches, the Rambam, in Moreh Nevukhim (3:39), focuses on the humanitarian benefits of shemitta. The Torah not only forbids cultivating the land, it also demands that the farmer disavow ownership over his territory, such that the entire nation, including the poor and destitute, share equal ownership over all the country's produce. This theme indeed appears to emerge from the Torah's brief description of shemitta in Parashat Mishpatim (Shemot 23:10-11): "Six years shall you sow your land and gather in its yield; but in the seventh you shall let it rest ['tishmetena'] and lie fallow, [so that] the needy among your people eat from it, and the rest – the beasts of the field shall eat." In this vein, the Rambam implicitly explains the connection between the agricultural laws of shemitta and the shemitta year's other obligation – the remission of debts (see Devarim 15:1-2). This law is clearly intended to assist debtors who cannot repay money they had borrowed. That this obligation takes effect in the same year in which one is required to renounce ownership over his land perhaps suggests that the latter obligation, too, serves to assist those experiencing financial hardship.

Among the questions raised with regard to the Rambam's view is that the prohibition against agricultural activity appears counterproductive to what he perceives as the primary objective of shemitta. If, indeed, the shemitta year is intended to alleviate the plight of the poor who cannot normally afford grain, then the Torah should encourage farmers to increase production during this year, rather than forbid cultivation and large-scale harvesting. Why does the Torah ban tilling the land during shemitta, the one year in seven when even the impoverished enjoy free, unlimited access to the land's produce?

The Rosh Yeshiva, Rav Aharon Lichtenstein shlit"a (as cited by Rav Yosef Tzvi Rimon, in the introductory chapter to his work, Shiurei Shevi'it) suggested that the agricultural prohibitions of shemitta serve to establish a sense of social – and not merely financial – equality between all members of society. A wealthy landowner must not only share his produce with his needy kinsmen, but also divest himself of his social position altogether. The Torah forbids tilling the land to ensure that landowners do not see themselves as owners over their fields at all during the shemitta year. In this way, the Torah establishes during shemitta not only financial equality between all socioeconomic groups, but also social equality. At least once in seven years, financial status becomes meaningless; all members of the nation stand on equal footing, with no one claiming exclusive ownership over any property. In this way, the people are reminded that despite the disparity in wealth and social status, ultimately we are all members of the same nation and are of equal importance, regardless of our respective socioeconomic conditions.

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Parashat Behar opens with the laws regarding shemitta, the seventh, or "sabbatical," year, during which the Torah forbids agricultural activity. As the Rambam explicates at the beginning of his Hilkhot Shemitta Ve-yovel, these laws entail both a mitzvat asei – a "positive commandment," or obligation, to cease agricultural activity – and a mitzvat lo ta'aseh – a "negative commandment," or prohibition against performing such activity. Thus, the Rambam writes, "whoever performs activity involving working the land neglects a mitzvat asei and transgresses a lo ta'aseh."

In theory, we can approach this asei-lo ta'aseh combination in one of two ways. The simplest approach, perhaps, is to view the two mitzvot as practically identical. Both are defined as forbidding one from farming during the shemitta year; the additional mitzvat asei has relevance only with respect to the punishment incurred by transgressing the shemitta laws. A violator faces not only the consequences of transgressing a lo ta'aseh, but also that of neglecting a mitzvat asei.

Alternatively, one might distinguish between the two in terms of their practical definition. The mitzvat asei of shemitta stems from the second verse of Parashat Behar, where the Torah writes, "the land shall observe a sabbath to the Lord." This verse appears to impose an obligation to ensure that the land observes a year of inactivity. Whereas the mitzvat lo ta'aseh is clearly oriented towards the individual's actions, the mitzvat asei, one might argue, is directed towards the land, requiring that it lie fallow for a year.

The Minchat Chinukh, in several places (112, 298, 326 and 329), draws this distinction between the asei and the lo ta'aseh, and reaches two interesting halakhic conclusions on this basis. First, he maintains that one neglects the mitzvat asei of shemitta even by allowing others to till his land. Since the mitzvat asei involves the land's observance of a year of inactivity, it demands that the owner even prevent others from working his fields. Secondly, the Minchat Chinukh claims, one can transgress the mitzvat asei even if he plants before the onset of the shemitta year such that the seed is absorbed in the ground and begins to develop during shemitta. Once we focus not on the act of planting, but rather on the ground's period of inactivity, a violation could potentially occur even as a result of actions performed before shemitta, if they infringe upon the land's "year of rest." The Chazon Ish, by contrast, draws an absolute, definitional equation between the asei and lo ta'aseh of shemitta, arguing that neither can be violated without the individual's personal performance of forbidden activity during the shemitta year. Among his proofs is the Rambam's formulation cited above – "whoever performs activity involving working the land neglects a mitzvat asei and transgresses a lo ta'aseh." This appears to indicate that only through the actual performance of agricultural work can one violate the mitzvat asei.

Rav Asher Zelig Weiss, in his Minchat Asher, cites an earlier source to the position of the Minchat Chinukh, that the mitzvat asei entails ensuring that the land remains untilled, rather than simply mimicking the lo ta'aseh's prohibition against specific human action. Tosefot in Masekhet Bava Metzia (90a), according to the standard editions of Tosefot, comment that shemitta features a rabbinic prohibition against instructing a gentile to perform forbidden activity. Meaning, just as Chazal forbade asking a gentile to perform forbidden activity on Shabbat, so does Halakha prohibit instructing a gentile to cultivate the land during the shemitta year. However, the Maharshal, in his Chokhmat Shelomo, asserts that this comment is the result of a copying error. In truth, Tosefot refers to Shabbat, not shemitta. The Maharshal contends that during shemitta, asking a gentile to perform agricultural work constitutes a Torah violation, and is not forbidden merely by force of rabbinic enactment. He cites the aforementioned verse – "the land shall observe a sabbath to the Lord" – as evidence to his position. Since the Torah requires that the land observe a yearlong "sabbath," one neglects this obligation by enlisting the services of a non-Jew to till the land. Seemingly, the Maharshal, like the Minchat Chinukh many years later, perceived this mitzvat asei as imposing a more general obligation than the specific prohibitions of shemitta, requiring landowners to ensure the land's observance of a period of inactivity. This obligation thus forbids one – even on the level of Torah law – from asking or contracting a gentile to perform agricultural work on his land during the shemitta year.

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In Parashat Behar, the Torah establishes the prohibition of ona'a – overcharging or underpaying for merchandise (25:14). The context of this discussion in the topic of yovel, or the jubilee year, during which all purchased land must be returned to its original owner. The Torah therefore demands that pricing take into account the temporary nature of the sale. Since the purchase is effectual only until the jubilee, the land's price must be determined based on the number of years remaining until the onset of yovel.

In among the more famous halakhic discussions in the Ramban's commentary to the Torah, he raises an obvious question regarding a fundamental restriction Halakha imposes on the ona'a prohibition – a rule known as ein ona'a be-karka'ot. Chazal (Bava Metzia 56a) note that in the Torah's presentation of ona'a, it speaks of a sale conducted "from the hand of your fellow," and on this basis they concluded that ona'a applies only to merchandise transferred by hand. Meaning, it applies only to moveable objects, and not to real property. The Ramban notes the glaring irony in this halakha, given that the Torah introduces this prohibition specifically amidst its discussion of the pricing of lands on the basis of their ultimate restoration on the jubilee year. How, then, can Chazal exclude land from the prohibition of ona'a? The Ramban therefore suggests that in truth, the prohibition of ona'a applies to real property, as well, and Chazal excluded real property only from the halakha that a sale is automatically void if the purchaser paid an exorbitantly high or low sum. In terms of the basic applicability of the prohibition, however, it includes, in the Ramban's view, all types of property and merchandise.

Rav Yosef Shaul Nathanson, in his Divrei Shaul, suggests a different explanation. He cites a discussion in the Talmud Yerushalmi (Gittin, chapter 4) from which it emerges that during the time when the laws of yovel apply, one who purchases land does not enjoy full ownership over the property even in the interim years until the jubilee. Specifically, the Yerushalmi asserts that the buyer cannot dig pits, trenches and the like in the field, since he must return it in its present form to the original owner once the yovel sets in. The Divrei Shaul deduces from this halakha that when yovel applies, any sale of land is defined as but a kinyan le-peirot – a sale of rights and privileges to the land's produce, but not a sale of the actual property. In effect, then, a person cannot actually purchase land in Eretz Yisrael when the conditions for the yovel obligation are met; all he can do is purchase rights to the fruits.

Hence, the Divrei Shaul explains, the Torah's presentation of ona'a in the context of property sales when the jubilee laws apply does, indeed, accommodate the halakha restricting ona'a to moveable merchandise. For the sale of land of which the Torah speaks here is not actually a sale of land, but rather of right to the produce, which clearly falls under the halakhic category of metaltelin (moveable items) which are subject to the ona'a laws. Therefore, although the concept of ona'a is introduced in the specific context of the sale of land, this is because the sale of land under discussion is actually the sale of produce, to which the ona'a laws indeed apply.