1) A PLEDGE OF "CHEREM" NOWADAYS
QUESTION: The Gemara relates that a man in Pumbedisa was Machrim his property. Rav Yehudah told him to take four Zuz, redeem the property onto them, and throw them in the river, and the property would become permitted. Ula said that had he been there, he would have told the man to give his property to Kohanim.
Rav Yehudah and Ula seem to disagree about whether unspecified Cherem goes to Hekdesh or to the Kohanim (as is the subject of dispute of Tana'im in the Mishnah, 28b).
However, both the ruling of Rav Yehudah and the ruling of Ula seem to contradict an explicit Beraisa (cited in Bechoros 53a and other places). The Beraisa states that one should not designate an object to be Cherem nowadays, when there is no Beis ha'Mikdash. If one does designate an object as Cherem, then he must let the object rot or throw it into the sea. Why do Rav Yehudah and Ula rule that the Cherem may be redeemed or given to the Kohanim, contrary to the ruling of the Beraisa?
(a) RASHI in Avodah Zarah (13a, DH v'Ein Machrimin) explains that it must be that the author of the Beraisa maintains that unspecified Cherem goes to Hekdesh, and not to the Kohanim. Since there is no Beis ha'Mikdash and, therefore, no Hekdesh, any object dedicated to Hekdesh must be left to rot. It is apparent that according to Rashi, if unspecified Cherem would go to the Kohanim, then it should not be left to rot, but rather it should be given to a Kohen.
Rashi's explanation, however, provides an answer only for Ula, who rules like the Tana in the Mishnah here that unspecified Cherem goes to the Kohanim, unlike the Beraisa. Rav Yehudah, in contrast, apparently maintains that unspecified Cherem goes to Hekdesh, and nevertheless he says that one should redeem the field and not leave it to rot. Tosfos in Bechoros (53a, DH v'Ein Machrimin) quotes RABEINU TAM who asks this question, pointing out that Rashi's answer does not explain the opinion of Rav Yehudah. (Tosfos in Avodah Zarah suggests that Rashi's intention indeed is only to answer the question according to Ula.)
(b) TOSFOS (DH she'Kol) answers that the Beraisa refers only to Metaltelin, mobile property. Since a person can easily set them aside and avoid using them, there is no concern that he will inadvertently benefit from them before they rot. Land, however, does not rot. Rav Yehudah maintains that if the Chachamim would not allow the Kedushah to be redeemed onto money, then someone might eventually derive personal benefit from the sanctified field. In order to avoid this, the Chachamim allow the Kedushah to be transferred to money.
Tosfos in Bechoros adds an important point to this answer. The Gemara here concludes that the case of the Cherem in Pumbedisa was "b'Mekarka'i Nami" -- "with land also," implying that the case involved Metaltelin as well. Accordingly, the explanation of Tosfos here seems difficult, because Rav Yehudah allows both land and Metaltelin to be redeemed onto money. The LECHEM MISHNEH (Hilchos Erchin 8:8) suggests that the text of Tosfos' Gemara must not have included the word "Nami."
Tosfos in Bechoros answers that, in fact, Rav Yehudah does not permit the Kedushah of the sanctified Metaltelin to be redeemed, but only the Kedushah of the sanctified land. (See HAFLA'AH SHEB'ERCHIN.)
(c) The RA'AVAD (Hilchos Erchin 8:8) answers that the Beraisa in Bechoros is discussing a case in which the owner did not want to redeem the items that he sanctified. In that case, they must be left to rot. In contrast, the person who came before Rav Yehudah wanted to redeem his Cherem and reclaim his property. (Y. MONTROSE)
2) THE STATUS OF LAND IN CHUTZ LA'ARETZ
OPINIONS: The Gemara relates that a man in Pumbedisa was Machrim his property. Rav Yehudah told him to take four Zuz, redeem the property onto them, and throw them in the river, and the property would become permitted. Ula said that had he been there, he would have told the man to give his property to Kohanim.
The Gemara questions this ruling from a Beraisa that says that the law of a Sedeh Cherem applies only when the laws of Yovel are practiced. The Gemara answers that even though Cherem applies to land only when Yovel is practiced, it applies to Metaltelin (mobile property) at all times. The Gemara asks that the case in Pumbedisa involved Cherem of land. The Gemara answers that land outside of Eretz Yisrael is like Metaltelin in Eretz Yisrael (since the laws of Yovel do not apply to land outside of Eretz Yisrael). Accordingly, if one dedicated land in Chutz la'Aretz as Cherem, the Cherem takes effect even when Yovel is not practiced, just as Metaltelin becomes Cherem even when there is no Yovel.
Does the Gemara's conclusion have any other practical ramifications, other than how one must treat land in Chutz la'Aretz that was dedicated as Cherem?
(a) The GE'ONIM, cited by the TUR (CM 95) in the name of the BA'AL HA'ITUR, rule that when one is involved in a dispute over the ownership of land in Chutz la'Aretz, one makes an oath when the circumstances warrant it. Normally, an oath is administered only when the ownership of Metaltelin is disputed, and not when the ownership of land is disputed (Shevuos 42b). The Ge'onim explain that since land outside of Eretz Yisrael is transferable and stands to exchange hands like Metaltelin, it is treated like Metaltelin and a Shevu'ah may be made. This is in contrast to land in Eretz Yisrael, where there is a concept of "Sedeh Achuzah" and land is not meant to exchange hands.
(b) The RA'AVAD (cited by the BEIS YOSEF CM 95) disagrees with the Ge'onim. When the Gemara here says that land outside of Eretz Yisrael is considered like Metaltelin, it means that it is considered like Metaltelin only with regard to Cherem taking effect when Yovel is not practiced. Since land in Chutz la'Aretz is not affected by Yovel (which affects land only in Eretz Yisrael), the Cherem of such land is not dependent on whether or not Yovel is practiced. For all other considerations, however, land in Chutz la'Aretz has the status of land and not of Metaltelin.
The SHULCHAN ARUCH (CM 95:1) rules like the RA'AVAD.
3) RECLAIMING A "SEDEH ACHUZAH" WITHIN TWO YEARS AFTER THE SALE
OPINIONS: The Mishnah states that when one sells his Sedeh Achuzah during the time that Yovel is practiced, "he is not permitted to redeem it [from the buyer] within two years" after the sale. The Gemara points out that the Mishnah does not say that "he cannot" redeem it, but rather that "he is not permitted" to redeem it. The Gemara concludes that the Mishnah is teaching that there is a prohibition which prevents the original owner from buying back the Sedeh Achuzah. The Gemara adds that there is even a prohibition which forbids the buyer from consenting to sell back the property within two years of the sale.
What is the Halachah when the seller and buyer transgress the prohibition, and the buyer sells the field back to the owner within two years of the original sale? Does their transaction take effect, or does the field remain in the possession of the buyer?
(a) The SHITAH MEKUBETZES quotes the RI who says that although they are sinners, the sale is valid.
(b) The Shitah Mekubetzes quotes RABEINU ELCHANAN who rules that the sale is invalid. He infers this from the Gemara's wording. When the Gemara comments on the words in the Mishnah, "Eino Mutar li'Ge'ol," it asserts that the Mishnah must maintain that there is a prohibition against buying back the field, and that even the "jingling of coins" is prohibited. Rabeinu Elchanan asks, why does the Gemara need to add that "even the jingling of coins is prohibited"? He explains that it must be that the Gemara is emphasizing that not only is selling the field back to the owner within two years prohibited, but the sale, if transacted, does not take effect, and it is considered like nothing more than an action of "jingling coins" which has no legal status as a sale.
The CHIDUSHIM U'VI'URIM has difficulty with the proof of Rabeinu Elchanan. RASHI (DH Eino Din and DH d'Afilu) seems to give a very simple reason for why the Gemara says both that buying back the field is prohibited, and that even jingling coins is prohibited. The Gemara is showing that the Mishnah maintains that not only does an original owner have no power to force a buyer to sell him back the field within two years, he cannot even "jingle coins" in front of the buyer in order to entice him to sell the field back willingly. This seems to be the simple explanation of the Gemara; it is unclear why Rabeinu Elchanan learned otherwise.
Nevertheless, the Shitah Mekubetzes quotes the ROSH who agrees with Rabeinu Elchanan. He argues that if the sale would take effect, then the Gemara should have pointed out the novelty that although there is a prohibition, the sale is valid. The fact that the Gemara makes no such point indicates that the sale indeed is not valid.
4) HOW TO BUY BACK ONE'S "SEDEH ACHUZAH" WITHIN TWO YEARS
QUESTION: The Gemara infers from the wording of the Mishnah that the original owner of a Sedeh Achuzah is prohibited from buying back the Sedeh Achuzah within two years after the sale. The Gemara adds that even the buyer is prohibited from consenting to sell back the property within two years of the sale.
Is there any legal way in which the seller and buyer can circumvent the prohibition and get the Sedeh Achuzah back to its original owner?
(a) According to RASHI (DH Shanim Tikneh), the verse teaches that the buyer must retain possession of the field for at least two years before the original owner may buy it back from him. If he returns the field before two years have passed, then he transgresses this prohibition. Based on Rashi's words, the CHIDUSHIM U'VI'URIM writes explicitly that even if the buyer wants to give the property back as a gift to the original owner, he may not do so.
(b) The CHAZON YECHEZKEL (Erchin 5:1) writes that the only prohibition mentioned by the Mishnah is that the original owner may not buy back the land. If, however, the buyer wants to relinquish his ownership of the property (such as by making it Hefker), the original owner may take possession of the land. As long as no redemption takes place, no prohibition is transgressed.
(c) The TIFERES YISRAEL suggests a novel way for the original owner to reclaim his field. He says that if the original owner gives money to the buyer and proclaims that he is giving a monetary gift to the buyer, then the buyer is allowed to give the field back to the original owner. As long as it is not a formal sale, it is permitted.
(d) The KOL SOFER suggests an even more novel way for reclaiming one's Sedeh Achuzah within two years. He proposes that the prohibition against redeeming the field within two years applies only if the redemption is calculated based on the amount of years left to Yovel, according to the normal formula for the redemption of a Sedeh Achuzah. If, however, the sale is conducted in a different manner, then there is no prohibition against redeeming it within two years. (Y. MONTROSE)
5) A FIELD SOLD DURING THE "YOVEL" YEAR
QUESTION: Rav Anan says that he heard two rulings from Shmuel. The first ruling he heard from Shmuel was that that when one sells his field during the Yovel year, the sale does not take effect. The second ruling was that when one sells his slave to a Nochri or to a Jew who lives outside of Eretz Yisrael, the slave goes free. Rav Anan adds that Shmuel said that in one of these cases, the money is returned to the buyer, while in the other case the money is not returned to the buyer, but he does not know in which case Shmuel said which ruling.
Rav disagrees with Shmuel's first ruling and maintains that when one sells his field during the Yovel year, the sale is valid, but the field immediately returns to the original owner, and the buyer loses his money. RASHI (DH v'Chada Lo Hadri) asks that it should be clear from this argument between Rav and Shmuel that Shmuel maintains that the money is returned to the buyer. If, in the case of one who sells his field during the Yovel year, Shmuel maintains that the money is not returned to the buyer, then there is no difference between his opinion and Rav's opinion! It must be that Shmuel maintains that the money is returned to the buyer. Why, then, is Rav Anan in doubt about whether the money is returned in that case? (See Rashi who offers several answers to this question.)
ANSWER: REBBI AKIVA EIGER explains that there is a simple difference between the opinions of Shmuel and Rav, even if Shmuel agrees that the money is not returned to the buyer in the case of a field sold during the Yovel year. In a case in which the buyer made a Kinyan on the land but changed his mind before he paid for it, Rav would rule that he is obligated to pay (since the sale was valid), while Shmuel would rule that he is exempt from any obligation because the sale never took effect. (He concludes by saying that he does not understand how Rashi could have overlooked such a simple answer.)