S.A.L.T. – PARASHAT BEHAR

By Rav David Silverberg

Motzaei Shabbat

The Torah in Parashat Behar discusses the laws that apply to the yovel year, which include the revocation of most real estate sales, and the return of sold property to its original owner.  From there the Torah proceeds to discuss the application of this halakha to the sales themselves, as property prices must take into account the eventual return of the land at the jubilee.  The Torah warns in this context, “lo tonu ish et achiv” (25:14), establishing the prohibition known as ona’a, which forbids overcharging or underpaying for merchandise.

            The Ramban, in a well-known passage in his Torah commentary (25:14-15), addresses the principle mentioned in the Talmud known as “ein ona’a be-karka’ot” – meaning, the laws of ona’a do not apply to real estate.  At first glance, this means that there is no prohibition at all against overcharging or underpaying for land or homes.  The Ramban, however, notes the obvious difficulty in such a premise, as the prohibition of ona’a is introduced precisely in the context of land purchases, here in Parashat Behar.  It is hard to imagine the prohibition of ona’a bearing no relevance to land sales if the Torah specifically presents this law amid its discussion of the sale of real property in Eretz Yisrael when the halakhot of the jubilee apply.

            The Ramban therefore claimed that when Chazal distinguished between land sales and the sale of other merchandise, they did so only with regard to certain details of ona’a.  In his view, one who overcharges or underpays violates the ona’a prohibition regardless of what was transacted.  Chazal excluded real estate only from the laws of “shetut,” meaning, the laws that apply when something was overpriced or underpriced by a factor of one-sixth or more.  If the merchandise was sold a “shetut” higher or lower than the accepted market price, then the buyer or seller must return the difference.  And if the difference is more than a “shetut,” then the sale can be revoked.  According to the Ramban, it is only these details that are restricted to mobile merchandise.  The basic prohibition of ona’a, however, which forbids overcharging or underpaying, applies even to real property.

            The reason for this distinction, the Ramban claims, is that in land sales, people are generally prepared to accept overpricing or underpricing.  When it comes to other merchandise, a person who was significantly underpaid or overcharged is considered to have been taken advantage of, and is therefore entitled to a partial refund or the annulment of the sale (depending on the price differential).  But regarding real estate sales, once a person agrees to a price, he accepts the terms of the transaction even if the price is well below or above the accepted market value.  Regarding both kinds of sales, however, according to the Ramban, paying or receiving an unfair price violates the Torah prohibition of ona’a.

A “byproduct” of the Ramban’s claim relates to the relationship between the concept of “shetut” and the basic prohibition of ona’a.  The Ramban very clearly distinguished between the two, stating that the prohibition of ona’a applies even when the rules of “shetut” do not (meaning, in cases of real estate purchases).  This means – and the Ramban here says so explicitly – that violating the ona’a prohibition does not depend on “shetut.”  Even in cases involving mobile merchandise, one who overcharges or underpays violates the Torah prohibition regardless of the price differential.  Although the laws that require a refund or the revocation of the sale apply only in cases of “shetut,” the Torah prohibition is violated through any amount.

The Ramban used this premise as a working assumption, whereas the Rosh, in Bava Metzia (chapter 4; cited by the Tur, C.M. 227), raised this issue without reaching a definitive conclusion.  The Rosh was unsure whether the ona’a prohibition is violated in cases of small amounts, even though the enforceable consequences take effect only in situations of “shetut,” or if the entire ona’a prohibition applies only when the price is a “shetut” higher or lower than the accepted market value.  The Shulchan Arukh (C.M. 227:6), too, leaves this question unresolved.  For the Ramban, however, it was clear that the prohibition is violated in any amount, and does not depend upon “shetut.”

Sunday

            Yesterday, we discussed the prohibition of ona’a, which the Torah introduces in Parashat Behar (25:14), and which forbids overcharging or underpaying for merchandise.  The Mishna in Masekhet Bava Metzia (51a) establishes that this prohibition applies equally to the buyer and seller.  Just as it is forbidden for a seller to sell his product for an unreasonably high price, similarly, it is forbidden for a buyer to purchase an item for an unreasonably low price.

            The Gemara infers both aspects of the ona’a prohibition from the Biblical text, and then proceeds to explain why the Torah found it necessary to specify both.  If we had been told only of the prohibition against overcharging, we might have attributed this law to the fact that a seller knows the quality of his product, and thus his overpricing is a deliberate scam.  It would not necessarily follow that a buyer – who may be innocently unaware of precisely what he is purchasing – is forbidden from underpaying.  Conversely, the Gemara adds, if the Torah had specified only the prohibition that applies to the buyer, we might have assumed that this is due to the buyer’s generally advantageous position, as he acquires an item of value.  It would not be self-understood that the seller, who in this process loses a valuable asset, is also bound by the ona’a prohibition.  Therefore, the Gemara writes, the Torah found it necessary to indicate in the text that the prohibition applies equally to both parties.

            Rabbi Akiva Eiger raises the question of why the Gemara did not consider another possible rationale for distinguishing between the buyer and the seller.  After the transaction, the buyer has the advantage of being able to bring the merchandise to an appraiser to determine its fair market value, and then returning to the seller to annul the transaction upon discovering that he had been significantly overcharged.  As we discussed yesterday, if the price was more than a “shetut” (one-sixth) higher than the market price, the buyer can demand the sale’s revocation.  The buyer has the advantage of being able to determine whether he was indeed cheated by the factor of a “shetut,” whereas the seller, once he transfers the merchandise, will not always be able to determine whether he had received a fair price.  Perhaps for this reason, Rabbi Akiva Eiger proposed, the Torah had to specify that the prohibition applies even to the seller.  Intuitively, we might have excluded the seller from this prohibition, since the buyer has the opportunity to determine the merchandise’s market value after the sale, and thus the buyer is free to sell the item for whichever price he chooses, with the understanding that the buyer could later demand the sale’s annulment.  Rabbi Akiva Eiger wonders why the Gemara did not propose this rationale as a reason for why the Torah specified the application of ona’a to the seller.

            Rav Yaakov Mecklenberg, in his Ha-ketav Ve-ha’kabbala in Parashat Behar (25:14), suggests that the answer to this question may relate to an issue we discussed in yesterday’s edition of “S.A.L.T.”  Rabbi Akiva Eiger’s question presumes interdependence between the prohibition against ona’a, and the annulment of a transaction made at an unfair price.  His premise is that the prohibition of ona’a is violated only in cases where Halakha allows the cheated party to demand compensation or the sale’s revocation, and therefore we might have thought that the prohibition does not apply to the seller, since the buyer can easily determine the ona’a and then demand his money’s return.  However, Rav Mecklenberg notes, it is possible that the prohibition against ona’a applies even to price differentials smaller than a “shetut,” when the cheated party cannot demand compensation or the sale’s annulment.  According to this possibility, the buyer’s easy ability to determine overpricing after the fact will have no bearing on the seller’s guilt.  If the prohibition applies even when the cheated party has no recourse after the sale, then this difference between the buyer and the seller is irrelevant as far as the ona’a prohibition is concerned.  Rav Mecklenberg thus suggests that Rabbi Akiva Eiger’s question proves the theory that the ona’a prohibition applies even if the price was less than a “shetut” higher or lower than the market price – an issue which, as we saw yesterday, was left as an open question by the Rosh and the Shulchan Arukh.

Monday

            Parashat Behar begins with the laws of shemita and yovel, and then proceeds to discuss laws relevant to the sale of property and servants.  The immediate connection between these two topics is the fact that on the yovel year, all purchased land returns to its original owner, and all indentured servants are released from service.  This renders every transaction involving property and servants inherently temporary, and thus affects the pricing of these purchases.

            But there might also be a more intrinsic connection between the topics of shemita and yovel, and the prohibitions involving unfair pricing.

            As the Torah indicates on several occasions in this parasha, the laws of shemita and yovel serve to remind Benei Yisrael of their status as “foreigners” who reside in Eretz Yisrael only with God’s permission; that the land belongs to the Almighty, and not to them.  This explains the restrictions on tilling and harvesting the land, as well as the socioeconomic equality which the Torah imposes – to different degrees – during the periods of shemita and yovel.  During shemita, all people are granted equal ownership over all the land’s agricultural produce.  And during yovel, all economic competition is not only suspended, but retroactively voided, as all people receive their original properties, and all servants regain full independence.  During shemita, and even more so during yovel, there are no wealthy and poor people, there are no masters and servants, to remind us that ultimately, we all occupy the same rung of the socioeconomic ladder, insofar as we are mere “surfs” residing on God’s land by His grace.  Commercial activity and competition throughout the other years are justified through the observance of shemita and yovel, which remind us that the despite the seeming gaps between members of different social and economic strata, we are all equally subservient to the Almighty.

The prohibition of ona’a, which forbids unfair pricing, perhaps relates to this same theme.  People are, by nature, dependent upon one another.  Any national economy is based on a kind of barter arrangement, whereby each citizen provides a certain service which then enables him to receive the services he needs.  When viewed from this perspective, every transaction is an expression of partnership.  The buyer gives the seller money he had earned by providing a certain service, effectively trading in his services for the product he needs.  Ona’a forbids a buyer or seller from abusing this system, and making it work for him but not for the other party.  If a transaction is not mutually beneficial for both parties, as gauged based on accepted market prices, then it is no longer a partnership.  If a buyer overcharges, he is in essence using the buyer as his servant, rather than working with him in cooperation.  The buyer gives without receiving; he is subservient to the seller, rather than his equal partner.  Fair prices ensure that a transaction reflects the equal standing of both parties, who equitably share their services with one another so both can live and prosper.

            Thus, the institution of ona’a, like shemita and yovel, relate to the need for the nation’s members view each as equals, as people working together to serve God, rather than struggling against one another in an effort to serve themselves.  These mitzvot express the theme of partnership and cooperation, a sense that must accompany us in all dealings with our fellow Jews, even as we engage in ordinary commerce and economic competition.

Tuesday

            The Torah in Parashat Behar presents the obligation to assist one’s fellow who experiences financial hardship: “If your brother is impoverished…you shall support him…that he may live with you” (25:35).

            The Midrash (Vayikra Rabba 34), commenting on this verse, writes: “This is what is meant when it is written (Tehillim 41:2), ‘Fortunate is the one who acts wisely toward the poor man.’”  To illustrate this point, the Midrash describes the practice that Rabbi Yona would follow when he heard of a wealthy person who lost his money and is ashamed to request assistance.  Rabbi Yona would approach the individual and – falsely – inform him of reports that he, the formerly wealthy man, has received a large inheritance in a remote land.  “Realizing that you are heir to a large estate,” Rabbi Yona would say, “I am giving you this to help you in the meantime, and you can pay it back after you claim the assets.”

The Midrash here notes the verse’s description in Tehillim of a person who is “maskil el dal” – “acts wisely toward the poor man” – as opposed to one who simply “gives” to the poor man.  Charity, the Midrash teaches, requires “wisdom,” and not just empathy, selflessness and generosity.  It demands more than sharing one’s hard-earned assets with his fellow in need, calling upon to think carefully about how we can effectively help a given individual, as exemplified by Rabbi Yona, who found a way to give charity to those who were reluctant to accept it.

As mentioned, the Midrash makes these remarks in the context of a verse in Parashat Behar - “If your brother is impoverished…you shall support him…that he may live with you.”  The Sages detected in this verse a reference to this theme of “acting wisely toward the poor man.”  It is possible that Chazal focused on the word “ve-hechezakta” in this verse, which literally means “you shall take hold of,” and perhaps denotes general support to prevent the poor man’s progression to lower depths of poverty (see Rashi).  The Torah does not require simply giving the individual money, but rather “holding him up,” keeping him afloat through whatever this entails.  It might mean friendship and emotional support, practical assistance as he adjusts to his lower standard of living, career guidance for long-term rehabilitation, intervening with his creditors to receive extensions, introducing him to prospective professional contacts, and similar kinds of assistance.  “Ve-hechezakta” means finding ways to assist somebody who needs assistance, and, as Chazal clarify in light of the verse in Tehillim, this might require a degree of creativity and innovation.  The reality of fellow Jews in need requires all of us to devise ways to help – in addition to the obvious obligation to make generous charitable donations.

Wednesday

            Earlier this week, we noted the Ramban’s discussion in his commentary to Parashat Behar (25:14-15) regarding the prohibition of ona’a – overcharging or underpaying for merchandise – which the Torah introduces in this parasha.  The Mishna (Bava Metzia 56a) establishes that this prohibition does not apply to karka (real estate); only metaltelin – mobile property – is subject to the laws of ona’a.  As the Ramban noted, this restriction seems startling in light of the fact that the Torah introduces the law of ona’a specifically in the context of land sales, warning buyers and sellers to set land prices according to the years remaining to the yovel, when lands return to their original owners.  To resolve this difficulty, the Ramban proposes that the prohibition of ona’a actually applies even to karka, and the Mishna’s restriction refers only to the consequences of unfair pricing (either the refund of the difference, or the revocation of the sale), which apply only in cases of metaltelin.

            Thereafter, the Ramban proposes a different theory:

It is also possible to say that the verse warns that they should know the number of years remaining until the jubilee, and should sell and buy accordingly, and not deal unfairly with one another in this regard by misleading him with respect to the number, or by misleading him during the sale into thinking that it is permanent… Rather, the two parties should know and inform one another the number [of years remaining], because the sale is only for the number of years remaining until the jubilee.

According to this theory, the ona’a prohibition generally does not apply to karka, but it does affect land sales in one respect: it forbids the parties from misleading each other with regard to the duration of the sale.  When negotiating a price for property, buyers and sellers must be open and honest with one another regarding the term of the sale, making it clear how many years remain until the sale will be revoked by the onset of the jubilee.  In this respect, the prohibition of ona’a applies even to real estate transactions.

            Rav Yaakov Mecklenberg, in his Ha-ketav Ve-ha’kabbala, claims that the Ramban contradicts his own theory elsewhere in his writings – in his critique to the Rambam’s Sefer Ha-mitzvot.  In lo ta’aseh 227, the Ramban writes explicitly that one who sells land is not required to specify at the time of the sale that the transaction remains in effect only until the jubilee.  The sale is done without any qualifications, and the property returns to the seller on the jubilee.  As Rav Mecklenberg notes, these comments of the Ramban appear to run in opposition to the theory presented in his Torah commentary, that the law of ona’a requires buyers and sellers to specify at the time of the transaction the number of years remaining until the yovel.

            Rav Eliezer Lipman Lichtenstein, in his Shem Olam commentary to Sefer Vayikra (Warsaw, 1877), notes that in truth, these two passages in the Ramban’s writings are not in conflict with one another at all.  In his critique to Sefer Ha-mitzvot, the Ramban addresses the Rambam’s position that the Torah forbids permanent land sales in Eretz Yisrael.  The Ramban understood this to mean that in the Rambam’s view, a seller must stipulate at the time of the sale that the transaction is, from the outset, effective only until jubilee.  It is to this premise that the Ramban objected, noting that since the law of jubilee takes effect regardless of the terms of the sale, there is no reason for the Torah to require any explicit stipulation at the time of the transaction.  But in his Torah commentary, the Ramban addresses an entirely separate issue – namely, misleading the other party when negotiating a price.  The prohibition of ona’a requires general clarity and honesty in determining the value of property as it is affected by the prospect of the jubilee.  This does not mean, however, that one violates Torah law if he does not specifically articulate at the time of the sale the number of years remaining until the yovel.  Thus, in Sefer Ha-mitzvot the Ramban rejects the possibility of a requirement to specify the temporary nature of the sale, whereas in his Torah commentary, he speaks of the prohibition against misleading the other party while negotiating a price for the property in question.

Thursday

            Yesterday, we noted the question raised by the Ramban, in his commentary to Parashat Behar (25:14-15), regarding the prohibition of ona’a, which forbids charging or paying an unfair price for merchandise.  The Mishna in Masekhet Bava Metzia (56a) excludes land and homes from this prohibition, despite the fact that, as the Ramban notes, the Torah introduces ona’a specifically in the context of real estate transactions, amidst its discussion of how the laws of yovel affect the pricing of land.  The question thus arises as to why the Torah would introduce the ona’a prohibition in a context to which it does not apply.

            A surprising answer to this question is offered by the Chatam Sofer (in Torat Moshe, Parashat Behar, and in his chiddushim to Bava Kama 88a), and the Chid”a (in his work Chomat Anakh).  These Acharonim suggest that during the time when the laws of yovel applied (meaning, when the majority of Am Yisrael lived in Eretz Yisrael), land in Eretz Yisrael had the status of mobile merchandise.  The Gemara in Masekhet Gittin (58a) states explicitly that when one purchased land in Eretz Yisrael during a period when the yovel applied, technically speaking, he acquired the land only on the level of kinyan peirot – meaning, he enjoyed rights to what the land produced, but did not actually own the land.  Rabbi Yochanan and Reish Lakish, as the Gemara famously cites, debate the precise legal status of kinyan peirot, whether or not this level of possession is legally equivalent to full ownership.  But all agree that if land is sold in an era when the yovel applied, the buyer receives only kinyan peirot, but not true ownership over the property.

            As such, the aforementioned Acharonim claim, the halakhic principle of “ein ona’a be-karka’ot,” which excludes real estate from the ona’a prohibition, was not stated in reference to land that is subject to the jubilee.  Such land cannot be truly sold, as the sale of these lands essentially amounts to a sale of produce.  The rule of “ein ona’a be-karka’ot” was thus said only with regard to land outside Eretz Yisrael, and to land in Israel in periods when the jubilee does not apply.  Therefore, it should not surprise us that the ona’a prohibition is introduced in the context of land transactions affected by the yovel.  When the yovel applies, land transactions are halakhically equivalent to the transaction of mobile merchandise, since the buyer receives only rights to the produce, and not the land itself.  As such, the prohibition of ona’a applies.

            This answer of the Chatam Sofer and Chid”a can be challenged on several levels.  Some scholars questioned their theory in light of the halakha codified in the Shulchan Arukh (C.M. 227:32) that ona’a does not affect property rentals.  If a person rents a facility for an exorbitantly high or ludicrously low price, the ona’a prohibition has not been violated, since the price is paid for real estate, and not for mobile merchandise.  It stands to reason that purchasing land subject to yovel is akin to renting land, and thus if ona’a does not apply to rentals, it should not apply to purchased land that is subject to the jubilee, either.  Seemingly, then, even though a buyer of land subject to yovel acquires only kinyan peirot, the prohibition of ona’a should nevertheless apply to such a transaction.

(See Rav Chaim Dov Eisenstein’s Peninim Mi-bei Midresha, Parashat Behar)

Friday

            Yesterday, we noted the Gemara’s comment in Masekhet Gittin (58a) regarding the effect of the jubilee year on the status of sales even in a non-jubilee year.  The Gemara establishes that since, in time when the yovel year was observed, all lands in Eretz Yisrael returned to their original owners on the jubilee, one who buys land essentially acquires only a “kinyan peirot” – meaning, rights to the land’s produce.  The actual territory itself does not become his; the transaction makes him the owner over the produce, but not the land.

            The Gemara appears to work on the assumption that the law of yovel means more than an obligation to return purchased lands on the yovel year.  The mitzva of yovel essentially precludes the sale of land in Eretz Yisrael.  It redefines all land transactions as a temporary transfer of rights, rather than a transfer of actual ownership.  The Torah does not require buyers to return lands to their owners on yovel; rather, it defines the “sale” from the outset as allowing temporary rights to the land’s produce.  Surprising as this may sound, this appears, at first glance, to be what the Gemara is saying.

            However, a number of Acharonim noted that other sources seem to point in a much different direction.  The Gemara in Masekhet Rosh Hashanah (9b) records the majority view among the Tanna’im that if all land buyers in Eretz Yisrael refuse to return their purchased lands on the fiftieth year, then the halakhot of yovel do not take effect.  This halakha is codified by the Rambam in Hilkhot Shemita Ve’yovel (10:13).  The clear implication of this rule is that the return of lands is an obligation that buyers must fulfill on the jubilee year, and not a redefinition of the original sale.  If the sale from the outset is defined as a temporary transfer of rights, then these rights should automatically return to the owners on the jubilee, and no formal, legal return of property should be necessary.  The status of the jubilee should not depend upon the actions of the buyers, as the initial purchases are terminated on their own with the onset of the yovel.

Furthermore, as noted by Rav Moshe Feinstein (Iggerot Moshe, O.C. 2:113), among others, if a person purchased land in Eretz Yisrael in a period when the yovel applied, and before the onset of the jubilee the yovel laws are suspended, he does not return the land on the jubilee.  Once the yovel laws were suspended (due to the exile of the majority of the Jewish people), buyers were allowed to retain the lands they purchased – even though the purchases were made before the suspension of the jubilee.  This clearly indicates that land sales constitute a bona fide transfer of property ownership, and then the jubilee requires buyers to return the property.  This halakha appears to directly contradict the Gemara’s classification of such sales as “kinyan peirot.”

This question is addressed by a number of different Acharonim.  The answer which several scholars suggest is that yovel does not automatically redefine sales as a temporary transfer of rights, but the specter of the yovel obligation yields this effect.  The Chazon Ish, for example, writes (C.M., likutim 7:2) that the sale of land is, fundamentally, a bona fide sale, however, “it is as if the buyer makes a commitment to the seller to fulfill the mitzva of returning [the land] on the jubilee,” and this renders the transaction a “kinyan peirot.”  The yovel obligation does not directly change the status or definition of the sale of property during the other forty-nine years.  However, in light of the assumption at the time of the sale that the buyer will return the property on the jubilee in compliance with the Biblical command, the seller’s intent is to retain ownership over the property even as he sells rights to the land.

It still requires explanation why, even according to this perspective, the buyer retains ownership over the land if the yovel is suspended at some point after the sale.  Seemingly, if the seller did not intend to transfer actual ownership, then the subsequent suspension of the yovel should have no effect on this implicit condition.  (See Rav Moshe Feinstein’s explanation in the aforementioned responsum, and in Dibberot Moshe, Gittin 84.)