The Buy-Back Option of the Loveh

          The gemara in Bava Metzia (35a) discusses the principle known as 'shuma hadra'.  Oftentimes in Halakha, when a debtor is indigent, the beit din (court) appropriates his lands and awards them to his creditor.  This is the implementation of 'shi'abud karka'ot' - collecting a debt from lands on which there was a lien.  We might have expected that the case has reached its conclusion; the lands have been completely transferred to their new owner.  The gemara, however, informs us that 'shuma hadra' and if the debtor has acquired some money, he has the right (for either a 12 month period or forever) to retrieve his land.  All is not lost!!

 

          At first glance, we might assume this halakha to be extralegal.  Apparently, after the lands have been appropriated, the debtor loses all legal rights to the new owner.  However, the halakhic economic system isn't cutthroat nor laissez faire; there are clearly moral principles which guide the system.  The paradigm for this situation is the pasuk in Devarim 7 from which the gemara derives our principle of shuma hadra.  The Torah writes: "Ve-asita ha-yashar ve-hatov (you should perform what is just and virtuous)" charging us to maintain moral standards above and beyond the delineated requirements.  Although the malveh has no fiscal responsibility to return the land he rightfully collected under the aegis of beit din, he has an extralegal moral imperative to offer the loveh the chance to redeem his field.  The gemara in Bava Batra (12b) derives a similar principle from this pasuk - the laws of bar metzra.  A neighbor has first priority to purchase a field which has been put on the market.  Assuming he is willing to pay market value he can demand that you sell it to him first.  Although from a purely legal standpoint, the present owner should have the license to sell to whomever he chooses, the principle of 've-asita ha-yashar ve-hatov' compels him to give first rights to the neighbor who can benefit most by consolidating the fields.  In other words, he has no Choshen Mishpat obligation, but from a Yoreh De'a perspective (religious- moral imperatives), he must act righteously.

 

          However, in both the above mentioned cases, a meaningful question arises.  To what extent does the moral imperative actualize as a monetary one as well?  Does it remain a purely extralegal, moral responsibility?  Or is the incorporation within halakha of moral moments so basic that new economic realities emerge as a result of the moral concern?  Does the Yoreh De'a halakha metamorphose into a Choshen Mishpat one as well?  This question has weighty sociological, philosophical, and possibly, even theological consequences (see afterward).  This article will briefly explore the above mentioned case of shuma hadra.

 

          The Chiddushei Ha-ran in Bava Metzia (16b) cites the Ramban who asserts that when redeeming the land, the loveh must issue a new shtar (contract) effecting this sale.  Returning the old shtar - the one used to appropriate the land - doesn't suffice.  After all, the malveh has acquired full legal ownership and merely has a moral responsibility to sell the land back to the loveh.  In order to validate this new sale, an additional shtar is necessary.  The Ran argues with the Ramban; no new shtar is needed since no new sale is being enacted.  Shuma hadra determines that the malveh never fully achieved ownership over the land awarded to him.  His full ownership was a suspended one which could always be terminated by the loveh paying back his debt.  When the loveh gives money, he isn't buying back what belongs to the malveh but simply reclaiming what was always his.  In the truest sense, the malveh has never achieved full legal ownership.  The law of shuma hadra restrains the malveh from achieving full ba'alut.

 

          A similar issue is raised by the Ritva (35a).  What occurs if land is awarded to a malveh who is a katan - a minor who halakhically is incapable of performing a kinyan?  Do we implement shuma hadra?  Does the reclaiming require a new kinyan since a katan cannot perform a kinyan?  The procedure might be delayed until he matures.  Alternatively, according to the Ran's position, we might expect that no kinyan is necessary for the loveh to recover what was always his.  Hence, even a katan might be able to participate in this process.  The Ritva himself sides with the first position - a katan malveh cannot extradite the land and the maneuver can only occur when he matures.  The question itself though does recall the machloket between the Ran and the Ramban.

 

          What would it take to nullify the din of shuma hadra?  If the malveh essentially owns the land but has an ethical imperative to sell it back, it might be simple to erase this obligation.  If the loveh were to waive his right through a simple mechila, the malveh would no longer be morally bound.  If, however, the malveh doesn't fully own the collected land, mechila might not be sufficient, for it cannot confer full ownership upon the malveh.  The Ba'al Ha-terumot (3:5:8) accepts the possibility of mechila.  Indeed, the gemara itself questions whether this law applies when the loveh offers his land in lieu of payment rather than beit din forcibly seizing the lands.  One might interpret the loveh's voluntary offer of land as a tacit mechila to his rights of shuma hadra.  If this were true, then the gemara itself might be questioning whether mechila can void shuma hadra.

 

          Alternatively, if indeed shuma hadra inhibits the attainment of full ba'alut, we might expect different methods for nullification.  What would occur if a higher, more intense grade of appropriation occurred?  What would happen if certain factors conspired to actually confer full ba'alut upon the malveh?  For example, as the Chiddushim Ha-meyuchasim Le-Ritva (see afterword) notes, what if the loveh, when paying lands in lieu of money, actually issues a shtar mekhira in addition to the contract which beit din issues to allocate the land?  Would this constitute outright sale of the land, thus bestowing the malveh with full ba'alut?  What would occur in the case of apotikey - a halakhic scenario where all of the lien is 'focused' upon one particular piece of land rather than on the entire portfolio of the loveh?  In such a case, according to many Rishonim, the ultimate collection of the land can be viewed as an actual sale rather than a seizure.  If, in general, shuma hadra is a function of limited ba'alut of the malveh, these cases of complete ba'alut would not allow the loveh any recourse.  However, if shuma hadra reflects a purely moral right of the loveh to buy back something he has entirely lost, it should make little difference how completely the malveh owns these lands.

 

          Would shuma hadra be mandatory when it is AGAINST the best interests of the loveh?  The gemara in Bava Metzia (35a) details a case in which the loveh stood to lose money by retrieving his land.  A shomer lost earrings which had been deposited with him for safe keeping.  He was initially forced to surrender his land in lieu of payment.  Ultimately, the earrings were recovered but their value had escalated.  In this case, the loveh is in no great rush to exchange the earrings for the land.  If shuma hadra were an obligation upon the malveh to perform a moral favor for the loveh, it might not be mandatory and might be operative only when it is indeed favorable and beneficial for the loveh.  Alternatively, if this moral law effects a new economic reality that the ownership of the collector is always suspended and never complete, then the malveh might be able to initiate the exchange [FROM HIS SIDE] even to the disadvantage of the loveh.  The gemara itself suggests that shuma hadra in this case is applicable.

 

          Would shuma hadra apply even to the loveh's buyer?  Halakha allows the malveh not only to seize the properties of the loveh but even the properties he sold to others after the loan.  If a malveh collects from these 'lekochot', can they attempt to reclaim their lands through shuma hadra?  We have a machloket between the Rambam (To'en Ve-nit'an 22:16), who extends the right even to the lokeach, and the Rosh (Ketubot 10:3), who denies him this right.  Clearly, if shuma hadra dictates that a malveh doesn't ever fully achieve his ba'alut and buy-back options exist, such options would apply to the lokeach as well.  If, however, shuma hadra represented a purely moral obligation vis-a-vis the loveh we might question whether the malveh has the same moral obligation to the lokeach whom he has never met before.

 

          Finally, we might examine the different timetables for shuma hadra.  The gemara offers two differing views; one offers the option for 12 months while the other extends it forever.  If shuma hadra were a moral imperative upon the malveh, we shouldn't expect the passing of time to have any effect in repealing the law; we would expect the law to be eternal.  However, if shuma hadra legislates a suspended ownership on the part of the ba'al we might expect that his ownership does broaden over time and complete itself within 12 months, rendering the buy-back options of shuma hadra obsolete.

 

 

Methodological Points:

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I.  Very often we encounter a question similar to the one posed above.  Does a law remain external to a given system or does it internalize itself as part of that very system?  Quite possibly, it begins and has its roots as an external law, but ultimately 'interiorizes' itself within the system.  In this instance, we questioned whether 've-asita ha-yashar ve-hatov was an external moral regulator or actually altered the landscape of Choshen Mishpat.

 

II.  Once again a principle can be tested best by its exception - when the principle fails or does not apply.  How can the rule of shuma hadra be circumvented - by mere mechila or by an intensification of the kinyan?

 

III.  The scope of a principle also helps determine its nature.  If the rule applies to 'lekochot,' for instance, it might be viewed differently.  See the gemara itself which raises questions of scope (yorshim etc.)

 

 

Machshava:

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          The broad question, whether there exists an ethic independent of halakha, has already been extensively treated in Rabbi Lichtenstein's article by the above title.  I would only note three additional points:

 

a)  What is the difference between yashar and tov?

b)  Why does the pasuk write yashar ve-tov be-einei HASHEM?

c)  What is the relationship between this principle and kedoshim tiheyu?  See Ramban al ha-Torah in each place.

 

 

 

Afterword:

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          Quite often, commentaries are mistakenly ascribed to the wrong person.  The commentary on Bava Metzia included in the standard three-volume Ritva is a perfect example.  It was written by someone else (possibly a student of the Ra'avad ,since he is often quoted), but certainly not by the Ritva.  Indeed, the Ritva authored a commentary to Bava Metzia which for many years was found in a sefer called the Ritva Ha-chadashim to Bava Metzia.  Recently, this latter text has been reprinted by Mossad Ha-rav Kook as part of its series of Chiddushei Ha-ritva.

 

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