In Parashas Vayeira we learn of the birth of Yishmael to Avraham Avinu.
In the present article we will discuss a particular halachah that relates to non-Jews in general, and to the Arab people in particular: the sale of real property in the Land of Israel to non-Jews. This matter is of special relevance in the current Shemittah year since one of the objections to the heter mechira (the sale of Jewish land to Arabs to permit labor of the land and sale of its produce) is that it involves selling land to non-Jews.
The issue is also relevant for some everyday questions. For instance, the entry of a large proportion of Arabs into a neighborhood raises the question: Is it permitted for a Jew who wishes to move out of the neighborhood, to sell his home to an Arab buyer since it is difficult to find a Jewish buyer?
What are the parameters of the prohibition against selling real property in the Land of Israel to non-Jews? Does the prohibition apply to Arabs? Are there cases in which the prohibition is waived? In the article below we will seek to examine the different aspects of the prohibition, and to determine if there is room for leniency under special circumstances.
Sources of the Prohibition
The verse in Devarim (7:1-2) states: “When Hashem, your G-d, brings you into the land you are entering to possess, and drives out before you many nations… and when Hashem your G-d has delivered them over to you, and you have defeated them, then you must destroy them totally. Make no treaty with them, and show them no mercy.”
Although the Pesukim refer to a time of warfare, the Gemara (Avodah Zarah 20a) derives three general halachos from the words “lo techanem” (“show them no mercy”). The first of these is: “You shall not give them an encamping on the land,” which means that is forbidden to sell a plot of land (including a house) to a non-Jew in the land of Israel.
Many authorities imply that this is a Torah prohibition. The Semag includes the prohibition in his Book of Mitzvos (Negative Prohibition 48), and Tosafos (Avodah Zarah 21a) clearly imply that the mitzvah involves a Torah precept.
This is also implied by the Gemara itself (Avodah Zarah 21a), which states that it is even prohibited to rent out property to non-Jews – a rabbinic decree based on the prohibition of selling property. If the prohibition against selling property were rabbinic, the Sages would not have decreed a further rabbinic prohibition to uphold it (the principle is that a rabbinic decree is not enacted to uphold another rabbinic decree).
However, some write, based on the Yerushalmi, that the prohibition is only rabbinic (this is cited by the Kaftor VaFerach (see below) in the name of the Ittur and the Hashlamah). According to this approach, the basic prohibition of the verse is against showing mercy to idolaters, as the Rambam writes (Negative Prohibition 50): “We are warned not to show compassion for idolaters.” The Talmudic derivation of the prohibition against selling property in Israel, according to this approach, is an asmachta alone (Radvaz, Vol. 5, no. 2057).
It is important to note that the Rambam does note a Torah prohibition against selling land to non-Jews, but cites a different verse (Negative Prohibition 51): “We are warned not to settle idolaters on our land, so that we should not learn from their heresy, as it is written: ‘They shall not dwell in your land, lest they turn you to sin against Me.’ It is only permitted for a non-Jew to dwell upon the land if he accepts upon himself not to serve idolatry, in which case he is permitted to settle the land and is called a ger toshav.”
The Seven Nations Alone?
From the context of the verses themselves, it might seem that the prohibition is limited to the Seven Nations of Canaan. Indeed, this interpretation is stated by Rav Baruch Epstein in his commentary (Torah Temimah) on the verse.
However, all leading authorities throughout the generations state that the prohibition is not limited to the Seven Nations. Tosafos (Avodah Zarah 20a) base this assertion on the fact that “there is no reason to distinguish between other idolaters and the Seven Nations.”
The Kenesses Ha-Gedolah writes that this is likewise implied by the Rambam, who rules the halachos in his Laws of Idolatry (which apply to all nations); see also the Minchas Chinuch (426), explaining the opinion of the Chinuch.
Another reason for understanding the reference to the Seven Nations to apply to all non-Jewish peoples is that the Torah instructs us to destroy the Seven Nations, so that the prohibition against selling them land is hardly appropriate. We must conclude that the prohibition includes other nations, too (Eshkol, Laws of Idolatry 46; Semag 48).
Sale to Non-Idolatrous Non-Jews
Although the prohibition applies to all non-Jewish nations, it remains possible that the prohibition is limited to idolaters and that concerning nations or individuals who are non-idolatrous, the prohibition does not apply.
On the one hand, the wording of the Rambam appears to imply that the prohibition applies specifically to idolaters, as he writes: “We are warned not to settle idolaters on our land.” The same statement is found in the Chinuch (94), and even in the Tur (Choshen Mishpat 249, with regard to giving gifts to non-Jews). In order that we should not come to be influenced by the ways of idolatry, it is forbidden to allow them to settle the land.
However, on the other hand the Rambam explicitly excludes a ger toshav from the prohibition. Not every non-Jew, even if he does not practice idolatry, is automatically included in the definition of a ger toshav (see below). The Rashba (Vol. 1, no. 8) discusses giving a gift of property to a non-Jew, and rules that this is permitted where the non-Jew is not an idolater – though he, too, refers to a non-idolater among an idolatrous people, who would be included in the category of a ger toshav.
The Meiri (commentary to Avodah Zarah) is most explicit in this matter, writing that the prohibition does not apply to “nations that are civilized in matters of religions, and who believe in G-d.” Some have suggested that the words of the Meiri were falsified, and should not be relied on, “for they did not emanate from his holy mouth” (see Shut Ateres Chachamim, Choshen Mishpat 14). The Shita Mekubetzes, however, cites the words verbatim without making any comment.
The principle ramification of this ruling (in modern times) is with regard to selling property to Arabs. The Rambam rules (Forbidden Foods 11:7) that descendants of Yishmael (he refers Arab Moslems by this title) are not idolaters, and reiterates the position in his teshuvos (no. 369).
Based on this opinion, some authorities note that the custom in Jerusalem (among the Sephardic community) was indeed to sell property to Arabs. Rabbi Refael Meyuchas (Mizbe’ach Adamah 151) writes that “today, we have seen great Torah luminaries, our teacher the Maharsha and the Maharam [not a reference to the well known commentaries, but to luminaries who lived in the Land of Israel], who oversaw the sale of several yards and houses [to non-Jews]. This is certainly because the prohibition of “they shall not dwell upon your land” applies only to idolaters.”
Stringent Opinions and the Matter of Heter Mechirah
By contrast with this lenient ruling, the Beis Yosef (Choshen Mishpat 249) explains that the lenient ruling of the Tur does not mean to exclude non-idolaters from the prohibition, but rather means to exclude a ger toshav. The Bach disagrees with the interpretation, yet agrees with the halachic conclusion, arguing that the reference of the Tur to idolaters is only on account of the censor. This is also the ruling given by the Shach (Yoreh De’ah 151:18).
Some authorities further derive this (stringent) position from the wording of the Rambam, who writes (that it is only permitted for a non-Jew to settle the land if he accepts to uphold the seven mitzvos of Benei Noach (see Or Le-Zion on Shevi’is).
One of the prominent authorities who rules stringently on this count is the Chazon Ish (Shevi’is 24:3; Yoreh De’ah 65), who writes (addressing the issue of selling property to non-Jews in the Shemittah year) that unless he accepts the seven mitzvos it is forbidden to sell property to a non-Jew. He adds that even according to the Ra’avad (who does not require the non-Jew to become a ger toshav) the non-Jew must accept the basic tenets of the faith of Israel. The leading halachic authorities of our day have followed the Chazon Ish in this matter.
In contrast with the stringent opinions, Rabbi Chaim Falagi (Shut Nishmas Kol Chai 54) writes that in practice one can understand the previously cited Rashba as referring to all non-idolaters and follow the lenient position. Concerning the question of selling land to non-Jews in the Shemittah year (heter mechirah), Rabbi Avraham Yitzchak Kook (Mishpat Cohen 58, 60, 63) likewise relies on the leniency of the Rashba. As we have seen, the Chazon Ish, among others, did not accept this ruling, and leading halachic authorities of our day also do not accept this ruling.
A third opinion with regard to the question is expressed by Rabbi Ashtori HaParchi (Kaftor VaFerach Chap. 10), who writes that it is permitted to rent houses to Arabs, but not to sell them property (see, however, the aforementioned Mizbe’ach Adamah, who interprets the ruling differently). A similar ruling is given by Rabbi Yisrael Shklov (Pe’as Ha-Shulchan, Hilchos Eretz Yisrael 1:17).
Selling to Avert Financial Loss
The Kaftor VaFerach (Chap. 10) cites from the Yerushalmi (Avodah Zarah 8a), which states that “in a place where the custom is such, one sells [to a non-Jew] even a house.” Tosafos understands that the statement refers to selling a home outside the Land of Israel, but the Kaftor VaFerach explains that the reference is to selling property in the Land of Israel. He therefore explains that under certain circumstances it is permitted to sell property to non-Jews:
“The same is true for a Jew who lives in a non-Jewish town in the Land of Israel, and wishes to move somewhere else, and can only sell his house to a non-Jew […] it is permitted to sell his house. The prohibition against selling property applies specifically when these conditions do not apply.”
This of course is a great halachic chiddush: According to the ruling, it is permitted to sell property in the Land of Israel to non-Jews out of [extreme] financial considerations. A number of authorities express wonder at this ruling, and write that “we cannot permit a Torah prohibition on account of financial loss” (Toras Chessed, cited by Zecher Simcha no. 215; see also Pe’as Ha-Shulchan 1:19, sec. 40).
However, we find a similar ruling in Shut Ma’aseh Ish (Yoreh De’ah 2, cited by Shut Zecher Simchas 214 in the name of Rabbi Shmuel Salant), who addressed the question of a group of Jews who bought a building to set up a hospital, and later were forced to move to a different building. Many non-Jews were willing to pay a great deal for the building, but no Jews were found who were willing to do so. Perhaps surprisingly, the response was that it is permitted to do so, the rationale being that this is considered “saving from their hands” (Gittin 44a) – ‘saving’ money from non-Jews to Jews.
It is possible that the reasoning behind these opinions is that the principle of lo techanem, which includes selling property to non-Jews and also giving gifts to non-Jews, is that we are forbidden from searching for the good of the non-Jew. If the sale is not being made for the good of the non-Jew, but rather for the good of the Jew, these authorities maintain that the prohibition does not apply.
This is possibly the rationale behind the ruling of Rabbi Yehoshua of Kutna (Shut Yeshu’os Malko no. 55), who writes that the prohibition against selling land does not apply where the sale is for the good of the community (it is important to stress that he refers to the good of the community, and not merely the benefit of individuals). The ruling is given in the context of the heter mechirah, and of course those authorities who dispute the heter on these grounds – such as the Chazon Ish and the Netziv – dispute the principle that underlies it.
Moreover, it is important to note that Rabbi Kutna (and other Poskim who ruled leniently) wrote at a time when circumstances were dire, and the heter mechira was issued against a threat of hunger and extreme poverty. Today, circumstances are quite different.
Rabbi Zvi Pesach Frank (Kerem Zion, Shevi’is 1) cites the ruling of the Toras Chesed, who states that it is permitted to exchange properties with a non-Jew residing in the Land of Israel. The reason for this is that the non-Jew in any case lives in the Land of Israel, so that exchanging properties will not make any difference to the settlement of the land.
However, concerning a case where a non-Jew already owns a plot of land in Israel the Chazon Ish (Shevi’is 24:1) writes that “there is no difference if the non-Jew already owns a plot of land in the Land of Israel or not, for every house and field gives him a settlement on that particular land […] and Heaven forbid leniency in a Torah prohibition.”
To sum up, according to some opinions it is not always possible to speak of clear-cut boundaries concerning the sale of property in the Land of Israel to non-Jews, and each question must be judged on its individual merits. The following are factors that should be taken into account:
- If the non-Jewish buyer is not an idolater authorities dispute the halachah of whether or not it is permitted to sell the property.
- The purpose of the sale is also a factor that some authorities take into account: If it is for the benefit of the Jewish community, or even for an individual (where there is no other option), this can be a significant factor.
- Is the sale a regular sale or an exchange?
- Another factor is the question of Jewish neighbors. We have not dealt with this issue, and reserve it for future study.