בתי ערי חומה ובתי חצרים
After its conquest by Joshua, the Land of Israel was divided into 12 equal parts in accordance with the number of tribes of Israel. Each male member of each tribe that actually left Egypt, was entitled to a piece of land equal in size to the total size allocated to his whole tribe divided by the number of men of twenty and over in his tribe that left Egypt. This family land was forever to remain the property of the family unit within the tribe and not pass to another tribe. In this way the children of each family unit within a tribe could look to their father for financial support. The father’s portion of the property was the “family bank.” It could be drawn upon to support the family. It could also be used to support the sons of the family, their wives and their children when the sons married. The father did not need to worry about his daughters when they married because the family bank of the husband’s family unit would take care of them.
One way in which the divine distribution of the land could be altered was by way of sale or gift. If total freedom of permanent disposition of land were permitted, it would not take long before the allocation of the land, which God considered equitable, would be reshuffled according to the fortuitous and not always equitable laws of economics. In order to restrict such diversions, the Torah instituted the laws of יובל, yovel, the jubilee under which land sold in perpetuity or for an unspecified period of time would revert back to its original owner at the Jubilee year. From yovel to yovel, however, land could be freely sold, subject to certain reversionary rights. For the purpose of determining which reversionary rights applied, land in Israel, during the era in which the laws of yovel applied, was divided into three categories.
The first category was known as שדה אחוזה, sdeh achuzah, the ancestral field. The term sdeh achuzah refers to a piece of land allocated to its original owners in the time of Joshua, as opposed to any buildings that may have been erected on such land. A sdeh achuzah which the owner purported to sell in perpetuity or for an unspecified period of time, would revert to its original owner at yovel.
The second category into which land in Israel was classified for the purpose of determining the scope of reversionary rights during the era when the Jubilee laws applied, was known as בתי ערי חומה, batei arei chomah, houses or other constructions in walled cities.
The reversionary rights that the Torah gave to the original owners of batei arei chomah differed from those given to the original owners of שדה אחוזה, sdeh achuzah, ancestral fields, in the following four significant ways. First, whereas the original owners of sdeh achuzah were precluded by the Torah from exercising their right of mandatory redemption of the ancestral field for a period of two years from the sale, the original owners of batei arei chomah were permitted to exercise their right of mandatory redemption and buy back the property immediately following the sale. Second, whereas the mandatory redemption rights of the original owners of sdeh achuzah could be exercised at any time, two years from the date of the sale until the jubilee year, the mandatory redemption rights of the original owners of batei arei chomah expired 365 days after the sale. Third, whereas sdeh achuzah automatically reverted back to the original owners upon the arrival of יובל, the jubilee year, even if the original owners did not exercise their buyback rights, batei arei chomah remained with the purchaser forever and did not revert back to the ownership of the original owners if they did not exercise their buyback rights within one year. Fourth, whereas upon exercising buyback rights, the original owners of sdeh achuzah were permitted to deduct from the buyback price the value of the crops that buyers enjoyed, prior to the buyback, the original owners of batei arei chomah were not permitted to deduct any amount for the use that the buyers enjoyed prior to the buyback, but had to refund the full purchase price to the buyer.
Because of these significant differences in reversionary rights, it was important to know the definition of batei arei chomah.
Batei arei chomah are structures of at least six to eight square feet in towns consisting of at least three courtyards with two buildings each, with a predominantly Jewish population, provided that such towns were surrounded by a wall in the time of Joshua, even though they may no longer be surrounded by a wall at the time of the sale or buyback. Batei arei chomah included not only residential houses fitting that description, but also structures used for business in such times, such as olive presses, bath houses, storehouses, dovecots, cisterns and vaults.
The laws of batei arei chomah applied only to the sale of structures together with the land upon which they were built, but not to structures that were sold “without” land. Since, according to one Tannaic opinion in the Talmud, the land of Jerusalem was not apportioned to any particular tribe, but was designated as Temple property to which all tribes had equal access, land in Jerusalem, as opposed to the structures, could not be privately sold. Therefore the sale of structures in Jerusalem was not subject to the laws of batei arei chomah, but rather to the different laws of בתי חצרים, batei chatzerim, open towns, which shall be discussed separately.
The fact that the purchasers of batei arei chomah were refunded the purchase price in full upon a buyback and did not have to pay the original owners anything for the use that they enjoyed prior to the buyback, caused some concern in so far as this free use might be construed as being contrary to the laws of רבית, ribit, taking interest on loans, which the Torah prohibits, whether paid in cash or in kind. If the original owner, who sold his house for $1,000,000 which he received as the purchase price from the buyer, redeems his house prior to one year and refunded the purchase price in full, this transaction could be construed as a loan of $1,000,000 for one year for which the house was put up as collateral, to be foreclosed upon should the loan not be repaid.
In fact, if one takes the position that prior to the expiration of 12 months, there is no real sale at all, but only a conditional sale, it looks even more like a loan. There are two approaches to this concern, one of the Mishna and one of the Breita. According to the Mishna, which looks at the transaction at the starting point of the transaction, the free use, though reminiscent of interest, is not really interest at all because the free use arises from a sale and not a loan. According to the Breita, which looks at the transaction at the time of the redemption, it turns out that the money in the hands of the original owner was in fact a loan, which he now has to pay back and the free use of the property by the buyer is in fact interest. Nevertheless, according to the Breita, it is permitted interest because the Torah permitted it in these circumstances. A way of rephrasing the issue is whether a transaction that might or might not turn out to be a loan—depending upon the election of one party to the transaction, in this case the original owner—is or is not a transaction involving ribit. This potential ribit situation is referred to in the Talmud as צד אחד ברבית, tzad echad beribit. According to the Mishna, a transaction involving tzad echad beribit does not violate the prohibition of ribit, whereas according to the Breita, it does.
For those of us who thought that the concept of escrow was a modern legal invention, the laws of batei arei chomah hold an interesting surprise.
On the last day of the year, following the sale of batei arei chomah, and in order to defeat the buyback rights of the original owners, the Mishna tells us that buyers used to hide from the original owners. In order to put an end to this tactic, Hillel instituted that original owners, unable to locate the buyers on the last day, may deposit the refund money in escrow for the buyers’ benefit with the beit din, the court of law, and would then be permitted to evict the buyer from the property. From the fact that Hillel had to institute this ability of the seller to deposit the purchase price for the benefit of the buyer against his will, the Gemara in Gittin tries to conclude that generally, money cannot be deposited with a person in the context of a transaction against his will.
Raphael Grunfeld, a partner at the Wall Street law firm of Carter Ledyard & Milburn LLP, received Semichah in Yoreh Yoreh from Mesivtha Tifereth Jerusalem of America and in Yadin Yadin from Harav Haga’on Dovid Feinstein, Zt”l. This article is an extract from Raphael’s book “Ner Eyal: A Guide to Seder Nashim, Nezikin, Kodashim, Taharot and Zerai’m” available for purchase at www.amazon.com/dp/057816731X or by e-mailing Raphael at [email protected].
