Selling Land in Perpetuity
Dedicated by Michal and Yeruchum Rosenberg, in honor of the birth of their son Yonatan Mordechai.
Based on a Shiur given by Harav Aharon Lichtenstein*
The prohibition to sell land in perpetuity is derived from the verse, Vayikra 25:23:
The land shall not be sold forever: for the land is Mine; for you are strangers and sojourners with me.
What is the meaning of this prohibition? As we can see, the Torah formulates this prohibition, not as a command, but as a statement of fact. We must, therefore, clarify whether in fact there exists a prohibition to sell land forever, or whether the Torah wishes to say that such a sale has no validity. Assuming that indeed the verse teaches a prohibition, questions arise regarding the substance of the prohibition and those who are bound by it.
THOSE WHO MAINTAIN THAT THE SALE IS FORBIDDEN
Rashi, on the spot, explains:
This is intended to charge with the transgression of a negative commandment the neglect of returning the fields to their owners in the Jubilee year; it commands that the buyer must not detain it.
Rashi maintains that the verse establishes a prohibition that falls upon the buyer. In line with this position, Rashi argues that the buyer does not violate the prohibition at the time of his purchase, but rather when he fails to return the land to its original owner in the Jubilee year. According to Rashi, the prohibition applies only when the laws of the Jubilee year are in effect.
The Rambam agrees with Rashi that we are dealing here with a prohibition, but he disagrees with him about its content. In Hilkhot Shemita ve-Yovel 11:1, he rules as follows:
No part of the land of Israel that was divided among the tribes may be sold in perpetuity, as it is said: "The land shall not be sold forever" (Vayikra 25:23). If it is sold in perpetuity, both buyer and seller have transgressed a negative commandment, their act avails nothing, and the field must be restored to its original owner in the Jubilee year.
The Rambam rules that the prohibition applies to both sides of the transaction, to the seller and to the buyer. It follows from this that the prohibition is not connected to the purchaser's refusal to return the land in the Jubilee year. We shall also see that, according to the Rambam, the prohibition is violated at the time of the purchase.
There is room to ask whether, according to the Rambam, there is any significance to the realities on the ground, beyond the conditions of sale. What is the law, for example, if the land was sold at a time when the laws of the Jubilee year were in effect, but before the Jubilee year actually arrived, the laws ceased to be in effect and the land was never returned? Have the buyer and seller violated the prohibition, since it turned out that the land was sold forever, or did they not violate the prohibition, since the transaction took place when the laws of the Jubilee year were still operative? Another example: if the buyer bought land in perpetuity, but now has regrets and wishes to return the property. Does the return of the property have any significance, or perhaps the buyer already violated the prohibition when he bought the land forever?
In contrast to what was cited above, the Rambam writes in his Sefer ha-Mitzvot, negative commandment, no. 227:
By this prohibition we are forbidden to sell our holdings in the land of Israel in perpetuity. It is contained in His words: "The land shall not be sold forever" (Vayikra 25:23).
Regarding the content of the prohibition as it appears in the Rambam's Sefer ha-Mitzvot, the Ramban raises the following question:
The meaning of this prohibition is not clear to me. For a person is not obligated to mention at the time of sale "I am selling it until the Jubilee year." Rather all sales are performed without specification – "My field is sold to you," "my house is sold to you," and the Jubilee year restores the sold property to the [original] owner, whether this was not specified or it was stated explicitly, always. As [the Sages] have said: "The Jubilee year is a royal cancellation."
It would seem, and thus the Ramban proposes later in the passage, that the Rambam is referring to a case where the buyer and seller explicitly stipulated that the land would be sold in perpetuity. The Ramban continues:
And I saw that Rabbenu Shlomo says in his commentary to the Torah: "This is intended to charge with the transgression of a negative commandment the neglect of returning the fields to their owners in the Jubilee year; it commands that the buyer must not detain it." But this is not the plain meaning of this prohibition. For it falls upon the seller, and not the buyer. Perhaps we can explain [the verse], "The land shall not be sold to you forever" – that you should detain it forever. It may also be suggested that this is a prohibition against stating explicitly, "I am selling you this [field] in perpetuity," even after the Jubilee year.
THOSE WHO MAINTAIN THAT THE SALE IN NOT VALID
All the Rishonim thus far cited assume that we are dealing here with a prohibition. The authors of the Halakhot Gedolot and the Yerei'im omit this mitzva from their lists of the 613 commandments, and so it would appear that they maintain that there is no prohibition here. The Ramban makes a similar suggestion:
The meaning of this prohibition according to the author of the Halakhot [Gedolot] is that it is not a prohibition at all. Rather, [God] commanded "And in all the land of your possession you shall grant a redemption for the land," for this land cannot be sold in perpetuity, because it is not yours. Rather you are strangers and sojourners in it with Him. For this reason the author of the Halakhot [Gedolot] did not mention this negative commandment. For according to him it is a negation, not a prohibition, and not as [the Rambam] suspected that he did not understand the idea of negation at all.
The Torah limits a person's capacity to sell land, and establishes that land cannot be sold in perpetuity.
THE POSITION OF THE RAMBAN
The Ramban, however, concludes that indeed there exists a prohibition to sell land forever, but the prohibition relates to the sale of portions of Eretz Israel to non-Jews, though there is no connection between this prohibition and the prohibition of "lo techanem" (Devarim 7:2):
It would appear from what they say that this is a prohibition that we should not leave the land in the hands of non-Jews in perpetuity, or leave it to them as a perpetual sale. The idea is that just as we were commanded regarding our bodies that are sold to non-Jews that they do not have possession of our bodies, as they expounded, "And they do not purchase from you," and we were admonished about avodat perekh, as it says: "He shall not rule with vigor over him in your sight" (Vayikra 25:53), and that we should release them in the Jubilee year, as it says: "Then he shall go out in the year of the Jubilee, both he and his children with him" (Vayikra 25:54). And the reason for all this is explained: "For to me the children of Israel are servants; they are My servants whom I brought forth out of the land of Egypt" (Vayikra 25:55). So too we were warned about the land. After commanding us about the restoration of the land in the Jubilee year, that He commanded the buyer to restore it, He also commanded the seller that he should take care not to sell the land in perpetuity, namely, to one who will detain it and not practice the law of the Jubilee year with us – i.e., to non-Jews. Rather, we should take care that our sales be such that the land returns to us in any case, and that we should not leave it in their hands forever. And He gave a reason similar to the reason regarding our bodies … for the land is His, may He be elevatand blessed. And we are all strangers and sojourners with Him. And He does not wish to settle there anyone else but us, only in our hands should it remain and to us shall it be restored.
A non-Jew is not bound by the laws of the Jubilee year. Thus, the sale of land to a non-Jew is by definition a sale in perpetuity, and this is what the Torah prohibits. The focus of the prohibition of lo techanem lies in the very granting of land to the non-Jew, whereas the focus of the prohibition presently under discussion lies in the exclusion of the land from the laws of the Jubilee year. The prohibition is to sell land forever, and the only case where this is possible is where the land is sold to a non-Jew. The focus of the problem, according to the Ramban, lies in the fact that land is being removed from the hands of the Jewish people.
What is the focus of the prohibition according to the Ramban? Is it the injury on the national level, in that the land is taken out of the hands of Jews, or is the injury on the religious level, in that the land belongs not to man, but to God, and He gave it to Israel. The Ramban mentions both points, but the Torat Kohanim emphasizes the injury to the kingdom of God:
"The land shall not be sold forever… for you are strangers and sojourners" – do not consider yourselves the main thing.
VALIDITY OF THE SALE
Is there a way to circumvent the prohibition and sell land in perpetuity? Regarding the release of debts in the Sabbatical year, for example, if the borrower and the lender stipulated that the Sabbatical year would not release the debt, it does not do so. Does a similar law apply to the sale of land in perpetuity?
According to the majority of Rishonim, when land is sold without further specification, the Jubilee year releases the land by way of a "royal cancellation," i.e., automatic cancellation of the sale by God, unconnected to any stipulation attached to the sale by the parties. All the Rishonim agree that the Jubilee year releases the land, even if the sale had been made without any stipulations, and even if the seller does not demand that his land be returned to him. However, regarding a sale in which the parties explicitly stipulated that the Jubilee year would not effect a release, the Rishonim disagree.
The Ramban, in the Sefer ha-Mitzvot, testifies that the Rambam maintains that such a sale is valid:
And I saw in his great work that one may stipulate regarding the Jubilee year on condition that he will not return it in the Jubilee year, just as we said regarding the Sabbatical year.
However, no such law is found in our texts of the Rambam.
The accepted understanding is that in any case the sale is not valid forever. Why is a loan valid, even if it was extended on condition that it would not be released by the Sabbatical year, whereas a sale of land is not valid, if it was made on condition that it would not be cancelled by the Jubilee year? The difference seems to be that in the case of a loan, the lender does not violate a transgression at the time of the loan, but only at the time of repayment, when he demands repayment of the loan. In contrast, regarding the Jubilee year, the parties violate a prohibition at the time of the sale, and a sale that involves a transgression is not valid.
There were those who wished to prove this point from the Gemara. The Gemara in Bava Metzia 79 discusses cases in which a sale is valid despite the fact that it conflicts with the laws of the Jubilee year. For example, a sale of land for sixty years. Some Rishonim infer from the fact that the Gemara did not bring the case of selling land in perpetuity, that such a sale has no validity.
Why should the permanent sale of land not be valid? The Rishonim explain this in various ways. The Nimukei Yosef in Bava Metzia brings in the name of the Rashba:
The reason is that he does not have the authority to make a stipulation, because it is not his. For it is holy to God, as it is written: "For all the land is Mine."
According to the Nimukei Yosef, a person is, in fact, not fully in possession of his own land, and so he cannot sell it forever. An objection may, however, be raised against this explanation: How then is it possible to sell land in perpetuity when the Jubilee year is no longer in effect? Even then a person is not in full possession of his land! It may be suggested that there is indeed a lack of full possession, but the ramifications of this deficiency only express themselves during the Jubilee year. When the laws of the Jubilee year are not in effect, the Jubilee year never arrives.
Another explanation appears in the Ritva (Bava Metzia, ad loc.):
The reason is that the Jubilee year involves a "royal cancellation," on account of "For the land is Mine."
In other words, even if the seller has all the ownership necessary for selling the land forever, nevertheless his ownership of the land is cancelled during the Jubilee year.
The Ramban brings another explanation (Makkot 3b):
I further say that this verse is a prohibition falling upon the seller that he should not sell [the land] in perpetuity. And wherever the Torah forbids the seller, stipulations are of no avail, for it is not a monetary manner, since the seller is also warned and he cannot waive. This is similar to interest where the Torah issued a prohibition to the borrower, and he cannot stipulate, "on condition that this not involve a violation of the prohibition against taking interest."
The Ramban compares the prohibition of selling land forever to the prohibition of taking interest. Regarding the prohibition of interest, the Rambam and the Geonim disagree about the law applying in a case where two people lend each other at interest. The Rambam cites the position of the Geonim in Hilkhot Malve ve-Love 4:13:
Some of the Geonim have taught that where the borrower pardons the lender all interest he has already received from him, as well as that which he may receive from him in the future, such pardoning is of no avail, even though kinyan be performed with respect to such pardoning or gift. Since all payments of interest in the world, are in the nature of a pardon, yet the Law does not pardon, but, on the contrary, forbids such pardoning, it is of no avail, even in the case of interest which is prohibited by Rabbinic law only.
The Rambam disagrees with this position. The Geonic view seems to be that the borrower's pardon is ineffective regarding interest, because the Torah's objective in forbidding the taking of interest is not to protect the borrower, but to prevent the negative phenomenon of taking interest from existing in the world. The fact that the two parties agreed about the interest is, therefore, irrelevant.
It follows from what the Ramban says that when the Torah imposes a prohibition on only one side of a transaction (on one who charges interest or purchases land forever), the purpose of the prohibition is to protect the other party (the borrower or the seller). If, therefore, that other party waives his rights, his stipulation is valid. When, however, the Torah imposes a prohibition on both parties, the Torah seeks total avoidance of such behavior, in which case a stipulation made between the two parties has no effect.
The Ramban may also agree that the laws of interest fall into the category of "monetary laws" and that the ordinary rules of monetary laws apply to them as well. The Torah, however, forbade lending at interest, and so such a stipulation is invalid. Alternatively, the Ramban's position may be even more radical: He might maintain that the laws of interest do not fall into the category of "monetary laws," but rather they are included among the prohibitions between man and God, in which case the principle of "any condition regarding a monetary matter is valid," does not apply.
In his commentary to the Torah and in the Sefer ha-Mitzvot, the Ramban goes off in another direction. The Ramban draws a connection between this law and the dispute between Abaye and Rava regarding the validity of an act prohibited by the Torah – "anything that the Torah has forbidden, if a person did it, it is invalid." The Torah forbade the permanent sale of land, aso such a sale is not valid. This explanation is entirely different from the explanation that the Ramban proposed in his commentary to Makkot, for it is based on the more general dispute between Abaye and Rava, and not on the laws of selling land forever.
It seems that we can draw a connection between what the Ramban says and the question regarding the focus of the prohibition, which we dealt with above. If the focus of the prohibition is the injury to the Jewish people, it is possible that such a condition should be valid. If, however, the prohibition involves an injury to the kingship of God, it is reasonable to assume that the sale will not be valid even if it enjoys the agreement of both parties.
* This summary of a shi'ur kelali delivered by Rav Lichtenstein several years ago was not reviewed by him. For another shi'ur on the same topic, see Daf Kesher 44, www.etzion.org.il/dk.
 If the buyer fails to return the land to the seller, does he also violate the prohibition of theft? It may be argued that since the sale was properly transacted, the land belongs to the buyer, though he is obligated to return it to the seller because of the mitzva of the Jubilee year. If he fails to return the land, he cancels the mitzva of the Jubilee year, but he does not violate the prohibition of theft. Obviously, this question is connected to the question whether the concept of "theft" can be applied to landed property. A similar question arises in various areas. For example, a field worker is permitted to eat of the field's produce while working, but he may not put of that produce into his utensil ("You shall not put any in your vessel" [Devarim 23:25]). The question arises regarding a worker who put of the produce into his utensil, does he also violate the prohibition against stealing.
 There are indeed cases where a prohibition falls upon two people, though primarily on one person, and also upon a second person only because of his involvement in the forbidden act. Thus, for example, in ordinary cases of forbidden sexual relations, the prohibition falls equally upon the man and the woman. However, in the special prohibitions applying to a kohen, which involve an injury to their sanctity, the woman is indeed liable to lashes, but it is clear that the prohibition applies to her only because of her involvement in the forbidden act, for she does not profane her sanctity. Here too regarding the prohibition of selling land in perpetuity, the prohibition might apply to the purchaser only as a result of his involvement in the transgression committed by the seller.
 Thus, we may understand why the laws of interest are found in the Shulchan Arukh in Yore De'a, and not in Choshen Mishpat.
(Translated by David Strauss)