Parasha: Behar · Aliyah: Second (Gevurah)

וכי תמכרו ממכר לעמיתך, "And if you sell anything to your neighbour, etc." Torat Kohanim on this verse asks: "whence do we know that the legislation concerning overcharging does not apply to transactions involving real estate?" Answer: "this is why the Torah wrote או קנה מיד עמיתך, "or if you will buy from the hand of your neighbour." This means that the commandment not to charge too much applies only to מטלטלין, mobile goods, chattels. The Talmud Baba Metzia 56 queries this ruling pointing to Numbers 21,26 where the word יד is used in connection with land, i.e. "he took his whole land from his hand, as far as the river Arnon." The Talmud concludes by saying that in every other instance the word ידו is to be understood literally, whereas only in this instance (Numbers 21,26) the word means "in his possession." Thus far the Talmud. The question arises why we do not use the verse in Numbers to deduce that the word ידו never needs to be understood literally as "his hand?" We must answer that the meaning of the word ידו is certainly "his hand" in the literal sense of the word. It is not disputed that the meaning of the word ידו may also be "something under one's control," however the literal meaning is the more likely in our context. When I have the choice of how to understand the word I naturally choose the meaning which fits the context in which the word appears. Moreover, if the Torah had not intended that we understand the word ידו literally it should have used a different word to prevent us from misunderstanding its purpose. We need to explore therefore why the sages inisted that the legislation against overcharging in our verse speaks only of the sale of chattels and that the verse does not speak at all of sales involving real estate.

It appears that although the exegesis employed by our sages is based on their prior knowledge of these הלכות which had been handed down orally from Mount Sinai, they were interested in linking all these הלכות to the written text of the Torah. The plain meaning of our verse is perfectly compatible with the known הלכות on this subject. We must remember that the Torah had already prohibited the irrevocable sale of real estate in the land of Israel through the institution known as יובל, Jubilee year legislation. That legislation precluded overcharging for the land as the Torah expressly stipulated that the sale price be based on the number of harvests the land in question would produce before the next Jubilee year (verses 16-17). Verse 17 speaks specifically about not overcharging an unsuspecting purchaser who thought that he bought title to that land outright. The seller meanwhile intended to invoke Torah law in the Jubilee year and claim back the land in question without compensating the buyer. In such a situation, i.e. that the seller purports to sell property against which there is no potential lien, the principle of overcharging does apply so that the original sale is invalidated due to the seller having misrepresented what he sold. Seeing that the Torah took care of potential overcharging for land in those verses, it is clear that in verse 14 the Torah speaks only of the sale of chattels and the word ידו is to be applied only in its literal sense. In our case the Torah protected the buyer of land against being overcharged seeing no outsider would protest the sale, only the seller himself who claims to base his protest on Torah law. The Torah therefore saw fit to protect the unsuspecting buyer against this particular claim only by writing that the price had to be based on the number of years till the Jubilee year from the time of the sale. By contrast then, the words אל תונו in verse 14 apply only to the sale of chattels.

במספר שנים אחר היובל, "according to the number of years after the Jubilee year, etc," We must establish first of all why the Torah speaks of the years "after the Jubilee," rather than "the number of years until the Jubilee year," seeing that the years the purchase is in effect are part of those years? Secondly, why did the Torah change its wording in the middle of a verse? The Torah describes the transaction as a purchase,מקנתו, when speaking of the number of years which determines the purchase price, i.e. making the purchaser the principal figure. When the Torah speaks of the number of harvests, however, it switches and describes the transaction as a sale, i.e. הוא מוכר לך, "he sells to you?"

We have the following Mishnah in Massechet Arachin folio 29: "When someone sells a field in the Jubilee year he is not allowed to redeem it until at least 2 years have elapsed seeing that the Torah stipulates that the sale has to be in effect for "a number of harvests," i.e. not less than two harvests. If one of those two years happens to be a year of drought so that no harvest is brought in, or it was the shemittah year (when the harvest is public property), such a year does not form part of the two years we have just mentioned. Rabbi Eliezer says that if the seller sold the field immediately before New Year's day while it had not yet been harvested the buyer may enjoy 3 harvests before the seller can redeem the field." Thus far the Mishnah. When the Talmud elaborates on this, it is pointed out that the Mishnah did not say that redemption of the field in less than two years would be legally ineffective, but said only that the "seller is not allowed to redeem it." This means that there is both a negative and a positive commandment, the positive commandment being that one must allow the purchaser to enjoy the field for at least two harvests. The wording of the Torah applies the positive commandment also to the purchaser, not merely to the seller having to allow the purchaser to enjoy possession for a minimum of two harvests ; this is based on the word תקנה "you shall purchase." We also find a Baraitha in that connection which states as follows: "if the purchaser enjoyed only one harvest prior to the Jubilee year one allows him to enjoy the harvest of an additional year after the Jubilee year." As a result of the foregoing we have four separate הלכות, rulings, on the subject which are based on our verse. 1) It is a commandment applicable to both seller and buyer that the sale be valid for no less than two years as stated in the Torah. 2) If there were three harvests within the space of two years they all belong to the purchaser. 3) If there was a year of drought so that there was no harvest, the purchaser is entitled to another year. 4) If the Jubilee year occurs during one of the two years the purchaser contracted for, this year is considered as null and void and the purchaser continues in possession for another year. Maimonides rules in accordance with what we have just stated in chapter 11 of his treatise Shemittah Veyovel.

Keeping the above in mind the wording of the Torah can be fully appreciated. The words במספר שנים אחר היובל mean "the number of years that have to be completed in the event the Jubilee year does not require the present owner of the field to relinquish it." The Torah then changed its wording from buyer to seller in order to make the law apply to the purchaser as well. Both seller and buyer are responsible for the sale not to remain effective for less than the time legislated by the Torah. The Torah mentions both the number of years and the number of harvests (pl) in order to allow for the eventuality of a drought or the Jubilee year which would result in the number of harvests being less than the number of years contracted for.

We need to understand the reason why G'd does not permit the buyer to return the field he purchased to the seller before two (harvest) years have passed. Since when is it forbidden for a person to waive financial claims in favour of someone else? The answer to this peculiar piece of legislation must be sought in the Torah's looking askance at anyone who sells land which is his heritage in the Holy Land. Torat Kohanim on verse 25: "if your brother becomes poor and sells part of his ancestral heritage, etc." explains that a person is not permitted to sell his field and to use the proceeds to invest in livestock or chattels. They base this on the fact that the Torah described permission to sell as due only to poverty, i.e. כי ימוך. The Torah hopes to dissuade a potential seller of his ancestral property from selling if he is aware that he will not be able to redeem it for at least two years.

Another reason may be connected to a ruling by Maimonides in chapter 11 of Hilchot Shemittah Veyovel that if someone sold his field for a period of 60 years such a field does not revert to the seller in the Jubilee year. The only purchases which are reversed in the Jubilee year are lands sold without a specific time frame, or a piece of property sold "forever." The author of Kesseph Mishneh does not quote the origin for Maimonides' ruling. Perhaps Maimonides derived it from a nuance in our text here. When the Torah writes במספר שנים אחר היובל the meaning may be that if the seller mentions a specific number of years that the sale is to be in force, be it 40 years or 60 years, ימכר לך, "he may go ahead and sell it to you." -The additional words ימכר לך mean that the sale is effective for the number of years contracted. In such a situation the Jubilee year does not override the agreement reached between buyer and seller. The words במספר שני תבואות explain why such a sale can remain effective beyond the Jubilee year, i.e. seeing that the seller sold a number of harvests he did not contravene Torah law not to sell soil. The Torah's principal concern is that a Jew must not sell the land which is his heritage in the land of Israel.

ולא תונו איש את עמיתו, "And you shall not take advantage of one another." Baba Metzia 58 explains that our verse discusses אונאת דברים, "verbal wrongs." The plain meaning of the verse is that seeing the Torah had already issued a similarly phrased commandment in verse 14, and we had explained that commandment as applicable when overcharging for chattels, we could have thought that overcharging for land was permitted. The Torah therefore had to repeat this commandment in connection with land sales so that the reader would not err and assume it is permitted to overcharge on land. The verse therefore concludes with the exhortation: "you shall fear your G'd," telling us that although the normal legislation against overcharging does not have a legal effect when the sale of real estate is involved, this is so only in connection with land sales in the rest of the world and to members of society at large (Gentiles). The prohibition to overcharge is in effect, however. The reason there are no legal repercussions when someone overcharges for the land he sells is that G'd personally will exact the appropriate penalty from the guilty party; this is why after the words: "you shall fear your G'd" the Torah adds the words: "for I am the Lord your G'd." G'd reminds us that He Himself will judge us in this respect and that we must not assume that it is permissible to overcharge when selling real estate. There are many instances of the Torah forbidding something without making such prohibitions a matter punishable by our legal system. You may do well to read what I have written on Exodus 21,12 in this connection. In our specific case, a court might find it difficult to determine precisely when the seller has violated the rule that he must not overcharge, seeing a purchaser may have been willing to pay more than the market price. (the same applies if the buyer bought the property for less than the market price, exploiting the economic weakness of the seller). G'd alone knows where to draw the line between what a buyer is truly willing to pay and what he feels he is forced to pay. This is why G'd Himself will administer any penalty due to either of the parties involved.

I have already stated earlier that the principle of a sale being declared an "erroneous transaction" and the court reversing it applies also to land sales. Maimonides also writes in that vein in chapter 15 of his treatise Hilchot Mechirah. The principle is based on the transaction having a blemish of which the buyer was unaware at the time he concluded the purchase. In such cases the buyer is at liberty to return the land even if a number of years have passed since the purchase was concluded. Our explanation is based on the wording of אל תונו the Torah uses here. The expression אונאת דברים covers every deception caused by words which misrepresent true facts. Lying to a person is a form of "wronging" him and includes overcharging for land, i.e. misrepresenting its true value.