Saturday 30 November 2019

Leaving Eretz Yisrael


Introduction

In the global society that we live in, for many it is hard to come to terms with a prohibition which may 'imprison' us in one country. Even among those who were born in Eretz Yisrael, there are few who have never left.

In addition, for most of the last 2,000 years, for most of Jewry there was little practical ramification to this prohibition, and as a result the halachic literature on the topic was limited. Here I will try to clarify what exactly is included and why. There are apparent contradictions in this regard between at least three different passages in the gemara, which will need to be resolved.

1) Making a Living – Bava Basra 91a

The gemara quotes a Beraisa which says that we may not leave Eretz Yisrael unless there is a famine so bad that two se'ah (roughly 16 litres) of flour costs a sela (a silver coin weighing roughly 19g). R' Shimon argues that if one is able to buy, he must not leave even under these circumstances. Elimelech, Machlon and Chilyon all were punished for not heeding this requirement.

Later on, the gemara qualifies that those who are not able to earn money may leave, however cheap food may be. This 'leniency' is possibly the primary justification for living outside Eretz Yisrael to this day, as many of those who were educated outside of Israel would find it difficult to find a job here.[1]

Most of the rishonim assume that the halacha is not in accordance with the strict view of R' Shimon, and in times of severe famine it is permitted to leave, if strongly discouraged.[2] However, even according to this, from this gemara, the only dispensation that appears to be given is for those in some kind of financial difficulty.

2) Mitzvos versus Impurity – Avoda Zara 13a

Elsewhere it seems clear that there are some other reasons for which it is permitted to leave the country. Kohanim have an additional problem with being outside Eretz Yisrael – Chazal decreed that all of Chutz La'aretz is impure.[3] This would normally mean that kohanim cannot leave Eretz Yisrael,[4] although a beraisa gives 3 reasons for which a kohen is allowed to become 'contaminated' with this kind of impurity:

  • To retrieve one's money or property in court.
  • To learn Torah.[5]
  • To get married.

It seems rather strange that these reasons are not mentioned at all by the first gemara quoted. Furthermore, the implication here is that these special circumstances are only necessary in order to allow a kohen to leave Eretz Yisrael. The impression given is that a regular Jew could leave even without such a pressing need.

3) Deserving of Death – Kesuvos 111a

A person once asked R' Chanina if he should leave Eretz Yisrael in order to perform the mitzvah of yibum, after his brother died there leaving a widow and no children. R' Chanina answered rhetorically in the third person: "His brother married a Kuthean[6] and died, Baruch Hashem who killed him! Now he (the questioner) should follow him?!"[7]

Here R' Chanina warns someone (not specifically identified as a kohen) not to leave Eretz Yisrael even for the purpose of marrying and performing the extra mitzvah of yibum.

To summarise, the different impressions one gets from the 3 sections of the gemara are:

1) It is permitted to leave only out of financial necessity.
2) One may leave in order to perform one of various important mitzvos, including getting married.
3) One may not leave in order to get married.

Gemara 2) seems to be contradicted by both 1) and 3).

Resolution

Tosfos[8] raise the issue of the contradiction between 2) and 3), and are forced to explain that the dispensation to leave Eretz Yisrael to marry in 2) is only temporary – the plan must be to return after the mitzvah is done. In 3), the enquiry was about leaving permanently.

This explanation appears rather difficult, as in neither 2) nor 3) does the gemara specify whether the intention was to return or not. As in both places the gemara is dealing with someone wanting to leave in order to perform a specific task, I believe it is fair to assume that in both instances the leniency is only regarding leaving temporarily. Furthermore, getting married would not appear to justify leaving Eretz Yisrael permanently, as the halacha entitles either spouse to insist on moving to Eretz Yisrael.[9]

The Rambam makes the same distinction as Tosfos, although he seems to do this based on 1) and 2) above as opposed to 2) and 3). He writes that while it is permitted to leave Eretz Yisrael temporarily in order to learn, marry etc., (2), leaving permanently can only be justified out of severe financial need (1).[10] The grounding for this approach in the gemara is clearer to me – the global conditions such as famine and economy described in gemara 1) have no clear endpoint and one who leaves for this reason cannot usually make clear plans to return.

If my thesis is correct, the Rambam does not accept the explanation of Tosfos regarding gemara 3). Here it was wrong to leave Eretz Yisrael even temporarily, even in order to perform yibum. I believe that in 3) there was a special reason – the late brother originally left Eretz Yisrael without any justification and bore the consequences. To honour the memory of such a person by following in his footsteps, even temporarily, is not recommended. The surviving brother may have already had a wife, and even if he didn't he would do better finding one in Eretz Yisrael.[11]

Business Trips

The remaining difficulty is the implication from 2) that a non-kohen may leave Eretz Yisrael (albeit temporarily) for reasons other than the 3 listed. The Rambam resolves this difficulty by adding a fourth reason that a non-kohen may leave Eretz Yisrael temporarily – in order to do business.9

The probable source for this leniency is a fourth gemara, dealing with the prohibition of shaving during Chol HaMo'ed. This prohibition is waived for various people who were not able to shave before Yom Tov; the tana'im dispute whether one who returns from abroad is included in this leniency. The gemara explains that all agree that for one who went on a pleasure trip there is no leniency and all agree that one who goes in order to obtain sustenance may shave on his return. The dispute is regarding one left in order to 'make a profit,' with R' Yehuda ruling stringently and the Chachamim permitting.[12] The halacha follows the Chachamim.[13]

The dispensation given for one who returns from a business trip is a clear indication that such trips are permitted. The Rambam uses the same language (לסחורה) to describe such trips, both in reference to the prohibition of leaving Eretz Yisrael and when quoting the leniency during Chol HaMo'ed.[14]

Equivalent Reasons

The rishonim dispute whether the circumstances listed by the gemara allowing one to leave are exhaustive. Tosfos quote the view of Rav Achai Ga'on, that the 3 reasons listed in the gemara are relatively weak.[15] It goes without saying that it is permitted to leave in order to fulfil other mitzvos. Tosfos disagree, showing that elsewhere these mitzvos are given a higher priority than other mitzvos.[16]

The Rambam writes that the reasons listed above allowing a kohen to leave Eretz Yisrael are examples, and the same applies for similar reasons.[17] Regarding a regular Jew, the Rambam gives the four exceptions (litigation, learning, marrying and business) and does not state explicitly that these are mere examples. However, this is presumably because the leniency of leaving in order to do business is by definition wide-ranging. It would be inconceivable to suggest that leaving Eretz Yisrael temporarily is permitted for business, but not in order to perform mitzvos.

The conclusion is that for a non-kohen, leaving Eretz Yisrael temporarily is permitted for any mitzvah purpose or for anything akin to 'business.'[18] Leaving for pleasure alone would appear to be forbidden.

Rationale

Rashbam writes that the reason that Chazal forbade leaving Eretz Yisrael is because leaving absolves a person of the mitzvos connected to the land.[19] Ramban explains differently, that all the hyperbole used by Chazal in relation to Eretz Yisrael is part of the mitzvah of taking possession and living in Eretz Yisrael.[20]

Following either approach, it is hard to understand why it would be forbidden to take a short trip to see some of the wonders of creation (or even the wonders of different societies) outside of Eretz Yisrael while intending to return. It is likely that the original reason that Chazal were so stringent was because in the past, plans to return even after a short period of time would often not materialise. Nowadays this seems far less relevant.

Some poskim are indeed more lenient nowadays based on this difference.[21] However, without a Sanhedrin to rescind or alter the prohibition, this is far from straightforward.[22] It is quite clear from cases in the gemara that the prohibition applies even when stepping over the border for a minute.[23]

My conclusion therefore is that one thinking about travelling out of Eretz Yisrael for pleasure should consider carefully whether this is really necessary, and whether he could not make alternative plans at one of the many potential locations inside the country. Those who are uncomfortable with the perhaps anachronistic nature of the prohibition could find comfort in the fact that nowadays there is a new reason to limit travel – doing our bit for preserving the planet by reducing carbon emissions.


[1] It is very difficult to define what level of effort a person must put in in order to overcome this problem, although for those who do not currently live in Eretz Yisrael it makes sense to be fairly leninent.
[2] Rambam, Hilchos Melachim 5:9; Yad Rama. See also Meiri.
[3] See Shabbos 15a-b for details of the various decrees. The main reason for this enactment seems to have been practical – there were many unidentified graves in Chutz La'aretz which a kohen may come in contact with unintentionally. However, see Tosfos in Nazir 54b (ד"ה ארץ העמים) who give an additional purpose – Chazal wanted to discourage us from leaving.
[4] The poskim discuss whether this applies nowadays, the Maharshal claiming that now Eretz Yisrael is no less pure than the rest of the world (commentary on the Tur, Yoreh Deah 369). See Shach, Taz and Pischei Teshuva to Yoreh Deah 369:1.
[5] The tana'im dispute whether this applies when there are rabbis in Eretz Yisrael from whom a person could learn. The halacha follows R' Yossi, who allows one to go to learn outside Eretz Yisrael even in these circumstances. The reasoning is that a person is not necessary capable of learning successfully from anyone.
[6] See Maharsha in Chidushei Agados who explains why this term was used here.
[7] Kesuvos 111a
[8] Avoda Zara 13a (ד"ה ללמוד)
[9] See Mishna and gemara, Kesuvos 110b.
[10] Hilchos Melachim 5:9
[11] See Chidushei Maharit on the gemara there, who explains similarly. The mitzvah of yibum does not obligate him to travel – it is incumbent on the widow to come to the place of the brother-in-law for yibum or chalitza (Sanhedrin 31b).
[12] Mo'ed Katan 14a
[13] See Shulchan Aruch, Orach Chaim 531:4
[14] Hilchos Yom Tov 7:18
[15] See Yad P'shuta, Hilchos Avel 3:14 who explains that this is not because learning and marrying are less important than other mitzvos, just that it is far from certain that these objectives will be met by leaving.
[16] Avoda Zara 13a (ד"ה ללמוד). The proof is from the prohibition of selling a Sefer Torah, which is only waived if the purpose is to learn or marry. However, according to the Yad P'shuta this can be resolved. Selling a Sefer Torah can raise the funds needed immediately, whereas undertaking a long journey in order to do these mitzvos is far less assured of being successful.
[17] Hilchos Avel 3:14
[18] As R' Shaul Yisraeli points out in Eretz Chemda 1:1:10, even Tosfos only limited the leniencies given to a kohen and did not discuss the law of a non-kohen. The conclusion of the gemara in Kidushin 31b also seems to be that it is permitted to leave Eretz Yisrael in order to honour ones parents.
[19] Bava Basra 91a (ד"ה אין יוצאין). This reason requires further explanation, as one is not usually obligated to ensure that he becomes liable to perform mitzvos. Furthermore, Hashem decided that these mitzvos should not apply outside Eretz Yisrael for a reason. Assuming that the reason was to highlight the importance of Eretz Yisrael, it would appear that the Rashbam has paradoxically made the means (the mitzvos) dependent on the end purpose (living in Eretz Yisrael).
[20] Sefer HaMitzvos, 'forgotten' positive mitzvah 4
[21] See Peninei Halacha, "The People and the Land," 3:9
[22] I discussed this at length in Eternal or Obsolete.
[23] See for example Gitin 76b.

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