Owning Land in Eretz Yisrael

There is great debate among halachik authorities as to the modern day obligation to live in the Land of Israel, and much ink has been spilled on the topic. But what about just buying land in Israel, not for the purposes of settling the land, is that a mitzvah?  The Talmud in Avodah Zarah 20a establishes that it is prohibited sell land in Israel to non-Jews. However for a variety of reasons this prohibition does not necessarily indicate that there is a positive obligation for a Jew to buy land in Israel. It would seem to be that the prohibition of selling the land is largely a function of broader interfaith relations (See Rambam, Sefer Hamitzvot, Mitzvat Lo Taaseh 51).

A more basic question however can be asked.  Is it even possible to own land in Israel? The Bechor Shor does not think so.

The Torah states as follows:

When you sell property to your neighbor, or buy any from your neighbor, you shall not wrong one another. In buying from your neighbor, you shall deduct only for the number of years since the jubilee; and in selling to you, he shall charge you only for the remaining crop years: the more such years, the higher the price you pay; the fewer such years, the lower the price; for what he is selling you is a number of harvests. Do not wrong one another, but fear your God; for I the Lord am your God (Vayikra 20:14-17).

What specifically does “Do not wrong (Lo tonu) one another” mean?

According to Jewish law, we learn from here the prohibition of ona’ah, overcharging.  If a seller overcharges more than 16% above market value, then the entire sale can be voided.  There are however certain items which are exempt from the prohibition of Ona’ah, land being one of them.  That does not mean that one is allowed to overcharge in the sale of real estate, but doing so would not be a technical violation of ona’ah.

If the prohibition of overcharging does not apply to the sale of property, then why does the Torah state “Do not wrong one another” (i.e,. do not overcharge) with regards to property?  The Ramban asks this question and provides two answers. His first answer is that the prohibition of overcharging is in fact not written in the verses with regards to property. Verse 14 should be more accurately translated as “When you sell wares,” not property, and the prohibition of “Do not wrong one another” of verse 17 applies to Onaat Devarim, wronging someone with words.

The second answer of the Ramban is that ona’ah does apply to land strictly with regards to informing the buyer how many years there are until the Yovel year wherein the land would revert back to its original owner.  In this sense, the prohibition of ona’ah is not directly being applied to overcharging on the value of the land but rather deception with regards to the length of the agreement.

The Bechor Shor has a different approach entirely to explain why the Torah discusses ona’ah in the context of land.  The Bechor Shor argues that there is ona’ah with regards to the sale of land in Israel because the land is never actually bought or sold.  It is only the produce of the land that is actually owned. Therefore the sale of land in Israel, at least during the years that yovel was observed, is subject to ona’ah because it is technically viewed as only the sale of movable objects, metaltelin.

While the Bechor Shor argues that ona’ah applies to the land of Israel, albeit in an indirect manner, his contemporaries disagreed. In fact the halachik consensus is that ona’ah does not apply to the land of Israel and the only question is with regards to the lands of the Diaspora. Some maintain that ona’ah also does not apply to the Diaspora while others hold that it does (See Responsa Levushei Mordechai 19).

Why would the Bechor Shor advance the idea that the land of Israel cannot be truly bought or sold?  Perhaps we must look no further than verse 23:

But the land must not be sold beyond reclaim, for the land is Mine; you are but strangers resident with Me. (Vayikra 25:23)

The Torah tells us in no uncertain terms that God owns the land of Israel.  We are to be but residents in a land owned by God. It is not ours to buy nor is it ours to sell.  This idea is reminiscent of the very first comment of Rashi in the Torah:

…Should the peoples of the world say to Israel, “You are robbers, because you took by force the lands of the seven nations of Canaan”, Israel may reply to them, “All the earth belongs to the Holy One, blessed be He; He created it and gave it to whom He pleased. When He willed He gave it to them, and when He willed He took it from them and gave it to us.”

The approach of the Bechor Shor does not weaken our connection to the land of Israel, since we cannot own the land, but rather it strengthens the connection.  Our right and privilege stems from the true landlord, God.