Introduction
Ownership of an item does not have to be complete. Two or more people can own something jointly, with equal or unequal shares in it. The split also does not have to be defined by a percentage. Using the example of a cow, an arrangement can be made whereby one person's owns the cow in respect to its milk (they will receive the milk), another person owns the rights to any offspring born by the cow and a third person owns the meat once the cow can no longer give milk.
There will then be questions as to who has the right to decide how much the cow is milked, how expenses are shared etc. Any legal system needs to have an answer to these questions, as well as any other issues that are owner-dependent according to the system. For example, the Torah imposes a fine on a thief who is testified against in court and found guilty – he must pay double. The owners of the cow will divide the payment between them, but this is more complicated when their shares are not defined by percentages.[1]
Here I would like to discuss a particular case subject to a dispute in the gemara, and some ramifications for Hilchos Shemita.[2]
Leasehold and Freehold
While the laws of Yovel (the Jubilee Year) applied, one who sold land in Eretz Yisrael did so only for a limited period. When Yovel came, the land would return to its original owner. In other words, only the leasehold could be sold and not the freehold. In halacha, the leasehold is known as קניין פירות (lit. ownership of the produce).
The dispute in the gemara is in regard to the laws of bikurim (the first fruits, which must be brought to the Beis Hamikdash). One who brings bikurim usually needs to make the declaration spelled out in the Torah,[3] but as this declaration refers to 'the land which you have given me', it can only be made by the true owner of the land. Reish Lakish therefore maintains that one who buys only the leasehold of the land, including any buyer when the laws of Yovel apply,[4] cannot make this declaration. R' Yochanan disagrees, and the gemara explains that he holds that the leaseholder is considered the true owner (קניין פירות כקניין הגוף דמי).[5]
The halacha follows Reish Lakish, i.e. that only the freeholder is the 'real' owner of the land.[6] While there are other applications to this halacha in the gemara, there are not as many as we might have expected for such a fundamental principle. It would seem that the main ramifications are for bikurim and other land-related mitzvos, and we shall discuss this in relation to Shemita.
Non-Jewish Ownership
Produce of non-Jewish owned land is not subject to the prohibition of Sefichim according to the Rambam, and nowadays this view is the complete halachic consensus. Furthermore, according to the Beis Yosef, none of the laws of Shemita apply to the produce of non-Jewish owned land.[7] As the leaseholder of land is not the halachic owner, these leniencies can only be applied to land where a non-Jew is also the freeholder.
This creates a potential problem for Heter Mechira, whereby Jewish landowners 'sell' their land to non-Jews in order to circumvent the laws of Shemita. For both halachic and practical reasons, there is no desire to sell the land permanently; selling just the leasehold will not achieve anything.
A Temporary Freehold?
One of the solutions suggested to overcome this problem will sound to many like a contradiction in terms. The Rambam (not in relation to Hilchos Shemita) differentiates between selling land for its produce (מכירת גוף לפירותיו) and selling for a limited period (מכירה לזמן). The former has no right to make changes to the land such as building or destroying, whereas the latter may make such changes during his tenure as owner of the land.[8]
The suggestion is that instead of selling the land only in respect to its produce, the entire ownership of the land should be sold for a limited period. In this way, the argument is that the non-Jewish buyer will be the true halachic owner even according to Reish Lakish.
However, this claim is far from straightforward. Firstly, the Ran writes explicitly that any temporary ownership is akin to ownership of the produce alone.[9] He proves this from the same gemara quoted above regarding bikurim, which says that any land sale at the time where the laws of Yovel apply is a sale of the land only in respect to its produce.[10]
It is not even clear that the Rambam is in dispute with the Ran. The Ran certainly agrees that it is possible to have an arrangement where the buyer is allowed to build and destroy, but must return the land at the end of his tenure. Although he classifies this as mere קניין פירות and the Rambam calls it קניין הגוף לזמן קצוב, the Rambam may agree that this level of ownership is also not sufficient to make the declaration when bringing bikurim, or to avoid the prohibition of Sefichim during Shemita.[11]
Fictitious Sales
The truth is that there is a more significant problem, which applies even if we assume that the 'temporary freeholder' is the real owner. Landowners do not want to allow non-Jews to build on their land during Shemita, so it is not practical to implement a genuine sale of the body of the land, even for a limited period. The whole point of Heter Mechira is to ensure that crops can be grown on the 'sold' land, but if the sale is genuine there is no way to achieve this.
The Mishna tells of a case where a father, apparently upset with his son, took a vow not to get any benefit from his son's possessions. The son tried to circumvent this vow by giving a meal as a 'present' to his friend, so that his father could partake from it. The friend then declared that if this meal is really his, it is now consecrated to Heaven (and forbidden for consumption)! When the son backtracked and said that the 'present' was not meant for this purpose, the Chachamim ruled that the gift was fictitious and the father may not eat. They formulated a general rule, that "any gift that the recipient is unable to consecrate is not a gift."[12]
The Rosh points out that a person certainly can make a gift with limitations, resulting in some form of shared ownership. A limitation on the recipient's ability to consecrate the gift is no different, and this would have been valid. The problem with the case of the Mishna is that no such clarification was made at the time of sale, and in reality, the son did not intend to give any meaningful gift at all. If the recipient is given real control over the item in one regard alone, this is sufficient to make it halachically valid.[13]
The implication is that a heavily limited gift (or sale) is sufficient to make the recipient the new halachic owner as far as the laws of vows are concerned, and presumably for other laws as well. Extrapolating to Hilchos Shemita, this would imply that giving the non-Jewish buyer any limited right to the land would be sufficient to prevent any issue of Sefichim.[14]
This corollary to the comments of the Rosh is astonishing to me, as it seems to make the halachic ownership subject to the arbitrary decision of the buyer and seller, irrespective of the breakdown of their financial rights in the object.[15] Furthermore, it would appear to be in contradiction to the gemara regarding the status of the leaseholder. The leaseholder also has ownership of the land in one respect, and according to both views, the halachic 'real' owner is determined objectively.[16]
Limitations and Stipulations
Partly due to the concerns described above, in recent times an alternative to the sale of land for a limited period has been suggested. It is possible to transfer full ownership of an object, on condition that a certain term is fulfilled. The recipient owns the item completely, from the moment that the transaction takes place, provided that the condition be met at a specified later date. If the term is not met, in retrospect we will know that the transaction was not effective.
The gemara says that with a few exceptions due to technicalities, one can even make a gift contingent on the recipient returning the item later (מתנה על מנת להחזיר). As long as the item is indeed returned, it is considered the property of the recipient in the interim. One may utilise this method to give an esrog to one who doesn't have one, allowing him to fulfil the mitzvah provided that he returns it afterwards.[17]
The new form of Heter Mechira works along similar lines. Land is sold to a non-Jew on condition that he will agree to sell it back after Shemita. The claim is that during Shemita, the land will belong to the non-Jew entirely; at the same time, there will be no risk of the seller not getting his land back.
However, this method is not without its problems. One major risk is that if the non-Jew decides not to sell the land back, the original sale will be invalidated and all Shemita-related prohibitions will turn out to have been in full force.[18] Proponents of this solution argue that as long as we find an honest non-Jew who has our interest at heart, this risk can be mitigated.[19]
Perhaps more importantly, this method does nothing to solve the problem of the non-Jew being able to use the land as he chooses during Shemita. As long as he returns the land in the state he received it, he could theoretically sow whatever he wants or rent the land to a third party.
In practice, the non-Jew would not be allowed to exercise such a right. I can only assume that additional conditions or limitations are made to the sale designed to prevent this possibility, but I do not know how these limitations could be valid while preserving the genuineness of the sale. Unfortunately, I have not been able to obtain the text of the contract used.[20]
[1] In
practice, an assessment of the value of the various different shares of the cow
will need to be made. It is questionable whether the owner to sell the cow only
in respect to the right to these fines – see Bava Metsia 33b-34a and Tosfos
there (ד"ה כגון); Ktzos HaChoshen and Nesivos HaMishpat siman 295.
[2] These
ramifications were discussed in Chapter 6 of Understanding
Halacha - Hilchos Shemita and there is some overlap, but here I elaborate
more on the general issue of ownership, using Hilchos Shemita as an example.
[3] Devarim 26
[4] While all
the twelve tribes were living in their individual territories.
[5] Gitin
47b-48a
[6] Yevamos 36b
[7] See Chapter
6 of Understanding
Halacha - Hilchos Shemita for an in-depth discussion.
[8]
Hilchos Mechira 23:6. Both of these are able to sow or plant whichever species
they want, and have the right to rent the land to a third party – this right
distinguishes them from a renter of land (Ibid. 23:8).
[9] Nedarim 29a
[10] Were
there to be an in-between possibility of selling the body of the land for a
limited period, the gemara should have applied this rule to Yovel as well. It
is possible that the Rambam would counter that although this possibility exists
in theory, when the laws of Yovel apply this too is impossible. The Torah says
explicitly that under Yovel, a sale of land is essentially a sale of harvests
of produce (Vayikra 25:15).
[11] See also Ktzos HaChoshen and
Nesivos HaMishpat siman 241.
[12] Nedarim
48a
[13] Bava
Basra 8:38 (also quoted in Shulchan Aruch, Choshen Mishpat 241:5). There is
some discussion as to how clear an indication is required as to the intentions
of the person making the gift, and when we should apply the rule of דברים שבלב אינם דברים
(unspoken words do not count). But this is not relevant to our discussion, as
we are dealing with cases where the terms of the sale are spelled out
explicitly.
[14] In practice, I am under the
impression that the non-Jew 'purchasing' under Heter Mechira actually has no
rights at all, but I have been unable to verify this fully.
[15] Perhaps
this is similar to the possibility of selling a cow only in respect to the
right to the fine payable for stealing it, discussed briefly in footnote 1
above.
[16] The
Rosh would presumably be forced to make a distinction between a temporary owner,
who can never be considered the 'real' owner, and a permanent owner of one of the
rights of an object.
[17] Kidushin 6b
[18] It
is for this reason that we do not sell Chametz before Pesach on condition that the
non-Jew will sell it back – such an arrangement risks transgressing the
prohibition of owning Chametz on Pesach.
[19] Although
of course there is no guarantee that the non-Jew will stay in good health.
[20] From
this
article (in Hebrew) it appears that the new method was first implemented in
the Shemita of תשס"ח (2007-8), but I have not even been able to verify whether this
has continued for the current Shemita year. If anyone has more information, I
would be grateful to hear.
