לא תחנם When The Gentile Already Owns Land

A mini chabura based on the teachings of אור ישראל וקדושו הכהן הגדול הרב אברהם יצחק הכהן קוק זצוק"ל.

This Toiiiiraahhhh should be לעילוי נשמת my two holy grandmothers נשמתן עדן Chana bas R' Yitzchak Yonah and Chana bas R' Meir Zev [and I'll bet you can guess what my little daughter's first name is....]

There is an איסור to sell land to gentiles in Israel from the pasuk לא תחנם which is interpreted to mean לא תתן להם חנייה בקרקע - don't give them a dwelling in the land. There is a svara to say that if the gentile already owns land it would be permitted to sell him additional land because even without the sale he has חנייה בקרקע. However, if the gentile sells his original plot of land then one might say that now retroactively the seller has enabled him to dwell in the land and thus it would be forbidden to sell it in the first place. One can yet still argue [Jews like to argue...] that בתר השתא אזלינן - we follow the present circumstances and if NOW there is no איסור then we aren't concerned with what might happen in the future and it is permitted.

We may travel faaaar away from our topic of לא תחנם and bring a proof that בתר השתא אזלינן from a gemara in meseches shabbos that talks about the איסור of plucking out tzaraas hairs. We know that in order to have tzaraas one must have a minimum of two hairs. So if one has three hairs and plucks out one he would still have tzaraas. With that background we learn...

ZUGT DER HEILIGE GEMAAAAAWWWWREEEEE [Shabbos 94b] : One who plucks out the signs of tumah from tzaraas or sears off a michya [a patch of skin with the appearance of healthy flesh within the afflicted area] transgresses a לא תעשה. It was stated - One who plucks out one of two hairs is חייב. If one plucks out one of three, Rav Nachman said חייב and Rav Sheshes said פטור.

Rav Nachman said חייב because the person's action is potentially consequential for if one more hair somehow becomes removed, the tumah will depart. Rav Sheshes said פטור because now the tumah is still present [for two white hairs remain in place] השתא מיהת הא איתא לטומאה.

So we see that according to Rav Sheshes we follow the present בתר השתא אזלינן and even though in the future one hair becomes removed and the tumah will depart, nevertheless now there are still two hairs and that is sufficient to absolve him of any wrongdoing. So, too, in our לא תחנם case בתר השתא אזלינן and by selling him land he isn't being given חנייה בקרקע.

Gevaldik!!

Ayyyyyy - but what about Rav Nachman [from the gemara - not from Uman].  He holds that if the action is potentially consequential he IS חייב. So, too, if he sells land to a person who already owns land he will be חייב because the gentile might sell the orignal plot of land and the present sale will become halachically significant.    

However it would seem that even according to Rav Nachman he is פטור. For the gemara continues: Rav Sheishes said, From where do I know to say this? For we learned in our Mishna: And similarly, if one carried from domain to domain part of a corpse the size of an olive etc. he is חייב. This implies that if he carries the size of half an olive he is פטור. However, this is problematic because a braisa taught that if one removed a piece of a corpse the size of half an olive he is חייב etc. etc. Rav Nachman answered that the person is פטור [as the mishna implies] when he takes a half an olive from a large corpse, i.e. a corpse big enough that even if more was taken from it, it would still retain enough mass to transmit tumah. In such a case the persons act is clearly inconsequential and for this reason the mishna implies that he is פטור.

According to this, if the gentile owns a large amount of land, selling him more would be inconsequential because even if he sells some land there would still be a lot more left.

Now - please do me a personal favor and look in tosphos ד"ה והא דאפיק and see how his דיוק would pose a question to our thesis and then look in the sefer שבת הארץ in the preface page נב and you will find a חילוק that will dance and you will see נפלאות מתורת השם! [If you don't have it I can send you a pdf].

Would LOVE to hear people's insights ומכל מלמדי השכלתי - see previous post:-).

Love and blessingsssssss