May one violate Shabbat to purchase land in Israel?

By SHLOMO BRODY
A BILLBOARD advertises new apartments for sale at a construction site in Ma’aleh Adumim in 2009 (photo credit: AMMAR AWAD/REUTERS)
A BILLBOARD advertises new apartments for sale at a construction site in Ma’aleh Adumim in 2009
(photo credit: AMMAR AWAD/REUTERS)
 In previous columns, we’ve discussed the scope of activities permitted to settle the land, ranging from waging war on Shabbat to utilizing so-called “honey traps” to capture enemies or traitors. In this essay, we’ll discuss whether one can violate Shabbat to complete time-sensitive purchases of land from non-Jews.
Even during eras of foreign rule and exile, Jews never ceased claiming their national entitlement to the Land of Israel. Nonetheless, that did not mean that Jewish law did not recognize the property rights of individual gentiles to parcels of land. Accordingly, the Talmud distinguishes between the status of produce grown on gentile and Jewish lands, with medieval scholars affirming that individual property rights of gentiles are respected, even if the territory had previously been possessed through conquest (kibush) or war. Furthermore, while the Talmud strongly discourages selling property in Israel to gentiles (lo tehanem), the sales are recognized as valid.
During periods of gentile rule over the Land of Israel, the ability of Jews to purchase property was sometimes limited with short time-frames. This reality may have helped inspired a ruling in the Babylonian Talmud which asserted that Jews may utilize a shabbos goy to sign legal writs to purchase land on Shabbat. As Rashi noted, this dispensation was intended to remove idolatrous inhabitants and strengthen Jewish settlement. This leniency was in spite of the general consensus that a gentile should not be asked to perform prohibited work, even to facilitate individual mitzvot observance. As Nahmanides explained, the commandment to settle the land is a unique communal obligation, and opportunities to prevent Jewish de-habitation should not be easily squandered.
In fact, such dispensations are found earlier in the Jerusalem Talmud. Resh Lakish, a third-century Galilean scholar, asserted that one may ask a non- Jew to help purchase property in Israel from another gentile by indicating to him where a wallet can be found with the money. While this may seem like a limited dispensation, the proof text for this ruling is quite striking, as the Talmud cites the biblical verses which describe Joshua’s conquest of Jericho, which took place on Shabbat. In fact, these are the very verses which were used to support the notion that Jews may fight on Shabbat to defeat their enemies. This raises the broader question of how far Jewish law goes to permit Shabbat violations outside the context of warfare or life-saving circumstances.
Medieval scholars disputed this issue. R. Isaac of Vienna, followed by Rabbi Moshe Isserles, significantly limited this dispensation to only allowing non-Jews to perform lower-level rabbinic prohibitions on behalf of this cause. In contrast, most medieval scholars, including Maimonides and R. Yosef Karo, allowed Jews to request gentiles to execute more severe biblical prohibitions.
The significance of this question more fully re-emerged with the return of the Zionist enterprise and purchasing lands from Arab owners.
Perhaps not surprisingly, anti-Zionists like the Satmar Rebbe asserted that this dispensation is entirely irrelevant in this time period. Others, like R. Yitzhak Weiss, noted that many contemporary authorities believe there is no prohibition of selling property to Muslims, who are not pagan idolaters. The opposite side of that coin, however, is that there is also no dispensation to violate Shabbat to purchase the land from them. Perhaps more surprisingly, in a 1926 responsum, the Zionist leader Rabbi Abraham Isaac Kook adopted the conservative position of Rabbi Moshe Isserles. He asserted that in the absence of a life-saving circumstance, the sanctity of Shabbat may not be sacrificed, even for the lofty cause of settling the land. This position was affirmed by his son, Rabbi Tzvi Yehuda Kook, famed visionary of Greater Israel.
In 1971, a representative of US secretary of state Bill Rogers visited the Gaza Strip. Wanting to display facts on the ground, residents of the Kfar Darom settlement were asked to expedite construction of permanent structures by having non-Jewish workers build on Shabbat. Yet following the position of rabbis Kook, the settlement’s spiritual leader, Rabbi Yaakov Ariel, ruled that such construction was prohibited since the land was already in Jewish possession. This ruling, however, was opposed by a different head of the Merkaz Harav yeshiva, Rabbi Shaul Yisraeli. He argued that the dispensation should not be so narrowly construed since it was meant to more broadly facilitate the settlement of the land, including addressing diplomatic challenges to Jewish sovereignty over disputed territories.
This issue became a public controversy in 2009, when Rabbi Avraham Gisser of Ofra permitted non-Jewish workers to finish construction of nine homes on disputed lands before legal and diplomatic obstacles would prevent the building’s completion. In addition to the ruling of Rabbi Yisraeli, supporters of this position cited a fascinating precedent from R. Yosef Haim Sofer, famed author of Kaf Hahayim and a Sephardi contemporary of the senior Rabbi Kook in prestate Jerusalem. R. Sofer asserted that when a unique opportunity emerged to rebuild a destroyed building in Jerusalem’s Old City, a rabbinic consensus allowed gentile workers to continue construction on Shabbat lest the window of opportunity would pass.
R. Gisser’s ruling was supported by figures like Rabbis Mordechai Eliyahu, Dov Lior and Eliyahu Bakshi-Doron. It was opposed, however, by Rabbi Meir Nehorai, who contended that this lenient ruling for a speculative strategic gain went beyond the talmudic dispensation, and Rabbi Yuval Cherlow, who worried about the negative reaction among the broader Israeli public who perceived this dispensation as a manipulation of Shabbat laws for political purposes. The controversy thus turned into one more example of the complex dynamic between religion and politics in the Zionist project.
The writer, author of A Guide to the Complex: Contemporary Halakhic Debates, directs the Tikvah Overseas Students Institute and is a presidential scholar at Bar-Ilan University Law School. Facebook.com/RabbiShlomoBrody