Chevron was once ours and will be ours in the future. But what about the interim? Since the events of our parsha more than 3,800 years ago, when Avrohom Avinu bought the field in which the Mearas Hamachpela was located, his descendants have been the official owners. There were times in which Am Yisrael lived there and controlled it. But today, aside from a small Jewish community, the residents of Chevron are mostly Avrohom Avinu’s Ishmaelite descendants. Chevron is one of the original Orei Miklat – Cities of Shelter which absorbed those who killed someone accidentally. Today it shelters some deliberate murderers.
In Parshas Chayei Sarah we read about the origins of our long relationship with the Mearas Hamachpela. Avrohom Avinu paid the full price for it and buried his deceased wife there. From then on it was owned by Avrohom and his heirs, in other words, Am Yisrael. Nonetheless, two weeks ago a UN agency decided that Mearas Hamachpela is a Moslem heritage site. But that is not our topic this week.
- We wish to discuss the current legal ownership of the Mearas Hamachpela, considering also whether there is any difference in the legal ownership of the entire Eretz Yisrael and ownership of Mearas Hamachpela? Is it permissible to pray today in Mearas Hamachpela? Must one tear kria when seeing Chevron as one does for the Mokom Hamikdosh?
It is interesting to note that Chevron is mentioned several times in the Torah, but Yerushalayim is not even mentioned once by its current name.
Ownership of Mearas Hamachpela
In Sefer Yehoshua (15) we find that Kolev Ben Yefuneh received the Mearas Hamachpela as well as “Kiryat Arba which is Chevron.” It was given to him by Moshe Rabbenu because he separated himself from the Meraglim. Although we do not know the limits of the portion that was given to Kolev, and do not know where they are in relation to what is called “Kiryat Arba” and to what is called “Chevron” today, it seems that the Mearas Hamachpela was part of the land wqhich was given to Kolev ben Yefuneh.
In Bava Basra (122b) the Gemora asks how it can be that Chevron was given to Kolev ben Yefuneh when there is a posuk in Divrei Hayomim (I 6, 42) that says that Chevron was one of the Orei Miklat and “…to the sons of Aharon were given the Orei Miklat [including] Chevron… and its fields.” In other words, if Chevron was designated by Yehoshua as one of the Orei Miklat it could not have been given to Kolev. The Gemora answers that Chevron itself was designated as one of the Orei Miklat but the surrounding area was given to Kolev. The Gemora quotes another posuk that indicates this (Yehoshua 21, 12): “And the fields of the city and the surrounding areas were given to Kolev Ben Yefuneh as his estate.”
The Rashbam on Bava Basra (Ibid.) comments: “The posuk says, `And to him I will give the land which he walked over, and to his children.’ This is the Chevron which he walked over, as we darshen in the aggodoh, `And he came until Chevron – this teaches us that Kolev went to pray at the kivrei tzadikim in Chevron, and he prayed that Hashem save him from the conspiracy of the Meraglim, that he not stumble by being drawn into it.’ “This states clearly that the land that Kolev walked on includes the Mearas Hamachpela, and that is what was given to Kolev Ben Yefuneh.
Did Yehoshua have the legal right to give Mearas Hamachpela to Kolev Ben Yefuneh? We will explain the issue.
Eretz Yisrael in its entirety was promised to Avrohom Avinu and his descendants, that is, to Am Yisrael. Avrohom was not told how his descendants would come into possession of Eretz Yisrael, but now we know that Bnei Yisrael conquered the land, acquired it through the kinyan of conquering in war, and then it was parceled out through a goral. One of the results of the goral was the Kolev got Mearas Hamachpela and the surrounding area. This is detailed in Sefer Yehoshua (15). However, it is important to note a difference between the land of Eretz Yisrael in general and Mearas Hamachpela particularly. Eretz Yisrael was promised by Hashem to Avrohom Avinu. This promise was fulfilled when Bnei Yisrael entered the land, conquered it and gave it out through a goral. (The Gemora in Bava Basra explains in detail how the goral worked.)
In contrast, Mearas Hamachpela was paid for in full by Avrohom Avinu. It was a private, personal purchase of Avrohom Avinu. If so, how could Moshe Rabbenu and Yehoshua give it to Kolev? When Avrohom Avinu died, Yitzchak inherited his property. In turn, Yaakov inherited it and later the Shevotim, and so on. This particular property appears to be owned by all the heirs of Avrohom Avinu and was not included in the lands promised by Hashem to Avrohom Avinu, which were given to Klal Yisrael only at a later date.
This question presumes that Avrohom Avinu first purchased Mearas Hamachpela when he went to bury his wife there. This, however, is controversial and is the subject of a machlokes elsewhere in Bava Basra (100a) between Rabbi Eliezer and Chachomim as to whether walking across a piece of (unowned or acquired) property constitutes a kinyan of chazokoh on that property. Rabbi Eliezer holds that this is the case, and he brings a proof from the fact that Hashem told Avrohom Avinu (in Parshas Vayeira, after he parted from Lot and well before Sarah died), “Get up and walk the Land, its length and its breadth.” According to Rabbi Eliezer, Avrohom Avinu thereby acquired full ownership of all Eretz Yisrael. Well before he bought Mearas Hamachpela he was already the full, legal owner of all of Eretz Yisrael. According to this approach we can understand the comments that Rashi makes on the posuk, “I am a stranger and a resident among you.” Rashi comments: “If you will, I am a stranger. But if not I will be a resident and take it legally since HaKodosh Boruch Hu told me that He will give this land to my descendants.” Avrohom Avinu already claimed legal ownership of the entire Eretz Yisrael, including Mearas Hamachpela, before he bought it from Efron. (Shut Shoel Umeishiv (III 1 20) explains that since it was not generally known that Avrohom owned all Eretz Yisrael, he paid for it so that he should not appear to be a thief.)
On the other hand, according to Chachomim walking across land does not constitute a kinyan chazokoh. The purpose of Avrohom Avinu’s walk was just “so that it would be easier for his sons to conquer the Land.” According to Chachomim, the only part of Eretz Yisrael which Avrohom Avinu owned was Mearas Hamachpela which he bought from Efron.
In summary, all of Eretz Yisrael belonged legally to Avrohom Avinu according to Rabbi Eliezer. Chachomim hold that Eretz Yisrael was promised to Avrohom Avinu, but the only part he owned outright during his lifetime was Mearas Hamachpela which he paid for in full. However according to all opinions Mearas Hamachpela was owned by all of the heirs of Avrohom Avinu. So how could Moshe Rabbenu and Yehoshua give it to Kolev?
But the truth is that there was no problem with Kolev receiving Mearas Hamachpela. The way Eretz Yisroel was divided up, with a goral and the word of Hashem, was merely a way of internally dividing up the collective inheritance of Klal Yisrael. Kolev got his special portion the same way as everyone else got their portion. The reason his portion was larger than others is that Kolev and Yehoshua divided up the portions that would have gone to the other meraglim, as explained in Bava Basra (117b).
So it is clear that Kolev Ben Yefuneh had a full and proper right to Mearas Hamachpela and its surroundings.
Is it Permissible to Pray Today in Mearas Hamachpela?
The first one we know to have prayed in Mearas Hamachpela was Kolev, who asked Hashem to save him from the conspiracy of the Meraglim. From then on, throughout the generations, Jews have prayed in Mearas Hamachpela. The Rambam visited Eretz Yisroel, and he set aside the day that he prayed at Mearas Hamachpela as a permanent personal yom tov for the rest of his life (Igeres HaRambam, quoted in Sefer Chareidim 3). However since the Moslems built a mosque over the site, there has been much discussion whether one may pray inside of the mosque.
HaRav Eliezer Waldenberg (Shut Tzitz Eliezer, X, 1, 44) expressed misgivings about praying in a mosque:
I was concerned about the tefillos that are currently held in the building of Mearas Hamachpela after, with Hashem’s help, the holy city of Chevron is in our hands. As it is plain to see, the place serves as a mosque for the Arabs in all senses, and very prominently, except in the area that is marked as the resting place of Yaakov Avinu on one side and Leah Imeinu on the other side. How is it possible to pray to the Creator of the World according to our true faith in a place that serves as a place of worship for that faith, and all the more so since books about their false faith are left there and verses of those books are engraved on all the walls, and on top of the graves there are shapes of half moons. The halacha is that it is forbidden to enter a house of idol worship. The poskim also warn us very much and very strongly against entering their houses of worship even if there are not literally idol worship… Even if we accept the argument that they came along to our property and they have no right to make it forbidden to us, this would be acceptable if we would at least remove their books and other materials, and not to allow kodesh and chol to coexist in confusion. All the more so is that one should not stand in the same room as they, and they turn to their false worship and we to our true faith. It would be ideal if there would be a special place exclusive to us.
On the other hand, HaRav Ovadia Yosef (Shut Yabia Omer VII Yore Deah 12) dismisses those arguments and determined that the halacha is like the Rambam (Hilchos Maachalos Assuros, 11, 7) that mosques are not considered houses of avodah zorah and that it is not forbidden to pray in them. He brings many sources for his opinion, and concludes, “And I saw many geonim and tzaddikim praying in the mosque of Mearas Hamachpela. And until now there is a permanent beit knesset for tefillah, used by our brethren who live in Chevron and Kiryat Arba.”
In our days, Boruch Hashem, the desire of HaRav Waldenberg has been fulfilled and even according to him there is no problem with praying in the area that serves throughout the year as a place of tefillah.
However the discussion is still relevant to the section called “Ohel Yitzchak” which is usually used as a mosque but on some days is accessible to Jews. According to HaRav Waldenberg it is forbidden to pray there. According to HaRav Ovadia Yosef it is permissible.
Kria when Seeing Chevron
The Gemora in Moed Kotton (26a) says, “Rabbi Eliezer said: Whoever sees the cities of Yehuda in their destruction must say, “Orei kodshecha hoyu midbar,” and tear [his clothing].” This is cited as the halacha in the Shulchan Oruch (Orach Chaim 561 and Yore Deah 340,38). It wpuld seem that this halacha is relevant today and we must tear our clothes when we see the cities of Yehuda in their destruction. The Mishna Berurah (2) says, “Even if Yisrael are living there, since the Yishmaelim are in control it is called `in their destruction.’ “ It would seem that the presence of a relatively few Jewish residents, and the exact political status of the area do not negate the fact that the city is in fact under Ishmaelite control.
The Chida (Birkei Yosef, Orach Chaim 561) discusses the obligation to tear Kria upon seeing Chevron. “My ancestor HaRav Chesed LeAvraham zt”l wrote in his glosses, that generally people to not tear on Chevron, and I heard from gedolim that the reason is that it was one of the Orei Miklat that were given to the Leviim, and consequently is not considered one of the cities of Yehuda. But on the margin his grandson, Moreinu HaRav HaGadol Avraham Yitzchaki zt”l wrote: I do not know who these gedolim were. But whoever they were these are weak points. Therefore I, in all humility, say that one should not rely on this opinion.”
However, it is not customary to tear Kria upon seeing Chevron.
HaRav Tikotchinsky (Sefer Eretz Yisrael, 22, 1) says that today we do not tear over the cities of Yehuda for two reasons: 1] We do not know exactly where the destroyed cities of Yehuda were; and 2] In his time [early twentieth century] everyone approached Jerusalem from the west, and as a result their first encounter is with Jerusalem. After tearing over the destruction of Jerusalem, there is no further obligation to tear over the cities of Yehuda.
Nowadays there are open approaches to all cities from many sides. Therefore, not always will the second reason of HaRav Tikotchinsky apply.
Yehi rotzon that Moshiach will come soon, and Chevron and all the other cities of Yehuda and Yerushalayim will be fully rebuilt, and that the issues of praying in a mosque at Mearas Hamachpela and tearing over the destroyed cities will no longer be relevant.