Volume 6 Number 90

Subjects Discussed In This Issue: 

Conquest of Land in Israel (2)
         [Ezra L Tepper, Danny Skaist]
Fast of the First Born (2)
         [Henry Abramson, Dr. Sheldon Z. Meth]


From: Ezra L Tepper <RRTEPPER@...>
Date: Thu, 08 Apr 93 10:00:26 +0300
Subject: Conquest of Land in Israel

Shaul Wallach (m.j v06#83) goes through a complex analysis of the
problem of the expropriation of land from non-Jews living in Israel. He
goes into a detailed analysis of _kinyan_ (acquisition) of the Land by
Jews via conquest and the problem of _gezel_ (stealing from) the non-Jew
residing on the Land.

I have a basic problem with his whole approach because if even a _goy_
can acquire land from a _goy_ by stealing from him via conquest (as
Wallach proves from Rav Papa that Ammon and Moav were made pure by
Sihon), there no proof that a _goy_ can steal land from _Jews_ via
conquest, particularly when we are dealing with the Land of Israel. This
is the central problem here as I see it.

The vast majority of _goyim_ in Eretz Yisro'el here have obtained their
land, in the first instance, via conquest and/or common-law settling on
land that belonged to Jews in the First Temple and Second Temple times.
It was not sold to them! Therefore, by conquering the Land, the Israel
Army and Government are merely kicking off trespassers and holding it
for their rightful owners (which will be decided once the Kingdom,
Sanhedrin, etc. are reinstituted). The whole question of whether we have
the right to make war or not is irrelevent. What is relevant is that the
non-Jewish residents of Eretz Yisro'el have no right to hold land stolen
from Jews. Once we do make war -- right or wrong -- we have the
responsibility to hold on to the Land for its real Jewish owners.

Moreover, even if some of the Land was bought legally by _goyim_ under
Jewish law from Jews during Second Temple times, there are two
points to be made here: a) the _kinyan_ they enjoyed was limited, as we
accept the ruling that purchase of Land in Eretz Yisro'el by non-Jews
does not abrogate the holyness and the responsibility of separating
tithes of fruit gathered by Jews off the legally purchased land; and b)
today's landholder would be required to bring proof that the land was
legally required from a Jew living there thousands of years ago, since
the vast majority of the Land was indeed stolen from Jews and very
little sold to them. This is clear from the Mishnah (Gittin 47a) which
specifies the Rabbinical punishment of lashes to any Jew that sells his
land to a non-Jew.

Ezra L. Tepper <RRTEPPER@...>

From: DANNY%<ILNCRD@...> (Danny Skaist)
Date: Tue, 13 Apr 93 13:42:51 -0400
Subject: Conquest of Land in Israel

Shaul Wallach 2-April-1993

I really don't understand much of what you wrote.  A lot of it seems to
contradict itself.  From a strictly halachic point of view, which is
what you requested, Land CAN'T change ownership without a valid kinyan.
But you site cases that tend to ignore this ONE and ONLY consideration.

>             Practically speaking, however, many of the lands
>were not acquired by force of conquest but were abandoned by
>the Arabs who fled.

Practically speaking, the lands that were abandoned WERE acquired by
conquest.  It doesn't matter if the enemy runs or fights.  Are the
fields around a city "abandoned" if the only fighting went on for the
city itself ?

>                                             Since the Hazon Ish
>made no mention of the Jewish conquest of the lands, while pointing
>out that the conquest of the Land of Israel by the non-Jews became
>void when the latter left, it can be inferred that the Hazon Ish
>did not recognize the Jewish qinyan (title) by conquest,

The Hazon Ish had reasons for not granting the State of Israel the
rights of "kings" explicitly.  But all the quotes from his p'sakim show
that the inference was made by people with an obvious political ax to

>               Thus R. Avraham Yeshayahu Karelitz (zs"l) in his
>Hazon Ish (Demai 15:1) ruled that the olives from trees that were
>left by the Arabs and taken by Jews after one third of their growth
>were exempt from the tithes, in accordance with the rule of hefqer
>(abandoned property).

Only the olives are hefker the land isn't. Note that any olive not one
third grown yet is assumed grow on Jewish owned land.  If the conquest
was not a kinyan then all olives were exempt from tithes.  All produce
is exempt.  The land belongs to non-Jews.


>                      However, the Hazon Ish ruled that in order
>to gain a legal title to the property, the Jew had to work the
>land to demonstrate his hazaqa (possession).

There are TWO meanings to the word Hazaqa.  The first is proof of
ownership, i.e. the 3 years etc. for land, possesion in the case of
movable property etc.  The second meaning is Kinyan [changing
ownership], done by working the land or even by locking/unlocking the
gate etc.  Hazaqa in this case is not proof of ownership but the KINYAN

>to gain a legal title to the property, the Jew had to work the
>land to demonstrate his hazaqa (possession).

Your words here are slightly off.  It is not to "demonstrate" but to aquire.

Land changes owners by three methods (of kinyan). Money, contract, or Hazaka.
According to the Rambam: Hazaka is only a kinyan if
a) The previous owner is Jewish.
b) The previous owner WANTS you to make a kinyan via hazaka. The Rambam
   gives the example of the previous owner giving over a key, as enough to
   imply that he accepts/wants unlocking/locking as a kinyan Hazaka.

Land obtained from a non-Jew can only change ownership via contract.
Hazaqa is NOT valid for taking posession of land from a non-Jew.

That the Hazon Ish told Jews to make a kinyan that is only valid if the
previous owner is Jewish, and the previous owner wants them to make a
kinyan Hazaka, is proof enough that the previous owner he was refering
to is the State of Israel.  No other scenerio fits the Hazon Ish's psak.

>But what about the lands that the Arabs continued to hold
>after 1948 and that were expropriated only later on? Even
>if we recognize the validity of the conquest, it would seem
>that their continuing possession reconfirmed their previous
>title to their lands. The question now becomes whether the
>Israeli government has the right to expropriate private lands.

Reconfirming previous title is not part of halacha!  If the land changed
ownership via kinyan, then ownership is changed. Continuing possession
is NOT a kinyan.  Land CAN'T change ownership without a valid kinyan.
The land belonged to the State of Israel by virtue of conquest.  A
kinyan is needed to transfer ownership from the state, to Jews or to
Arabs.  What kinyan do you propose the "original possessers" did to
re-acquire the land after the conquest gave a kinyan to the state.

>     To sum up, our discussion seems to point very tentatively to
>the following practical consequences:
>1) Regarding land that was willingly abandoned by Arabs, there
>   appears to be no disagreement that a Jew who takes possession
>   of it acquires a rightful title to it, at least by working it.
What KINYAN do you see that makes this possible ?  Absent ownership does not
make land hefker. Who gave the Jews the land ?

>2) About lands that were actually conquered by force, especially
>   before May 15, 1948, there appears to be a difference of opinion
>   whether the conquest confers a valid title of ownership.

The war of independance started before May 15,1948.  Even lands bought
by Jews before then were included in this conquest. All land that was in
the territory controlled by the State of Israel after the shooting
stopped was conquored by them.  But I haven't seen any diference of

Land conquored by force has a much stronger case for a kinyan then land
abandoned by their owners.

>3) Opinions seem to be divided over whether the State of Israel is
>   empowered by halacha to expropriate land at all. In any case,
>   land that was expropriated in violation of Israeli law would
>   appear to be stolen according to all opinions, unless a
>   settlement has been reached with the former tenants.

The state need not "expropriate" the land unless the owner has a
halachically valid kinyan from the State Of Israel.  Without a valid
kinyan the land already belongs to the state.



From: Henry Abramson <abramson@...>
Date: Sun, 11 Apr 93 11:22:22 -0400
Subject: Fast of the First Born

Rachel Sara Kaplan asked what the Mishna Brurah has to say about why the
bekhorot [female first born] might fast -- the answer is not too much:

Shulkan Arukh: "...and there are those that say that even female first born

ReMa: We do not observe this custom.

Mishna Berurah: "That even female first born..."  Because the plague of the
slaying of the first born also applied to them according to a Midrash [he
does not provide a source].  "We do not observe this custom..." Because 
the Torah does not give the kedushat bekhorot [holy status of first-born]
to females in any place.

On another note -- I would like to share with readers of m-j my own
experience with the fast this year, which I attempted with
near-disastrous results.  The fast itself was not difficult; if your
family is like mine there are a thousand things to get done before
candlelighting and I just didn't have time to think about being hungry.
I was makil be-rehitsa [lenient regarding washing] because this fast is
certainly less serious than Yom Kippur and Tisha Be-Av, and for less
serious fasts there are some lenient opinions when they fall on erev

What really did me in, however, was those first two cups of wine on an
empty stomach, as one of our respected colleagues warned us against
earlier.  By the time Hallel came around I was a wreck, slurring my
words and anxious just to get to bed.

I still think the fast is significant enough that we first-born should
take greater cognizance of the great rahamim [mercy] that HaKadosh
Barukh Hu showed.  Next year I hope to try one or both of the following:
1) either make a siyum myself, if even on a single tractate of Mishna,
or 2) find the weakest wine I can for the those first two cups.

Henry Abramson                   <abramson@...>
University of Toronto

From: Dr. Sheldon Z. Meth <METH@...>
Date: Sun, 11 Apr 93 17:04:29 -0400
Subject: Re: Fast of the First Born

Shulchan Aruch Orach Chaim 470

1. Mechaber: (1) "The first borns fast on Erev Pesach, (2) whether a first
born of the father or the mother.  There are those who say that (3) even a
female first born fasts."  Rama: (4) "but the custom is not so (Maharil)."

Mishnah Berurah: 

(1) In remembrance of the miracle that they were spared from the Smiting of
the First Born.

(2) Because the Smiting of the First Born was with all of them as is
brought in the Midrash.  Nevertheless, the eldest of the house is not
required to fast even though they were included in the plague.  A child
which follows miscarriages must fast, since he is the first born with
regard to inheritance.  The foregoing is only with respect to a definite
miscarriage; but one who is born after a child delivered at term, even
though it died within 30 days, does not have to fast.  First borns of
Kohanim and Levi'im must also fast, even if they were only first borns
of the mother, and are thus not first borns to inheritance nor to
Redemption of the First Born, nevertheless they are called first born.

The Maharil writes that this fast must be completed (i.e. until
nightfall, see Siman 249), because it is a Ta'anis Tzibbur [public
fast].  It appears that one who has a headache or pain in his eyes does
not have to fast.  It appears furthermore that a person for whom the
fast is difficult, and afterward will only be able to eat light foods of
a very small portion, so the matter is close to his not being able to
fulfill the eating of Matzah and Maror, and the drinking of the four
cups according to the law, it is better for him not to fast in order to
fulfill the Mitzvos of the evening as required; nevertheless, it is
preferable that he eat only types of dessert [targima].

[Laws of davening for the first borns who are fasting skipped...]

(3) Because the Smiting of the First Borns occurred to them as well, as
is brought in the Midrash.

(4) Because the Torah did not place the sanctity of Bechoros on females
for any matter.

2. Mechaber: "If (5) Erev Pesach falls on Shabbos, there are those who
say that the fist borns fast (6) on Thursday, and there are those who
say (7) that they don't fast at all."  Rama: "However, the custom is
according to the first opinion.  We are accustomed that (8) when the
father is a first born, the (9) mother fasts for her first born son when
the latter is still under age [less than 13].  If the father is not a
first born, then he fasts for his son (10) until he comes of age."

Mishnah Berurah:

(5) If it falls on Friday, he fasts on that day.

(6) But not on Friday, because, since it [Friday] is not its time, it is
better to push it off to Thursday. ...

(7) Because in this fast, which is only a custom, since it is postponed,
it is postponed [permanently].

(8) And his fast is for himself.

(9) There are Poskim who write that she does not have to fast because
the father's fast includes his son's.  In case she is in pain, we should
be lenient; certainly if she is pregnant or nursing, and is in pain due
to the fast, we should be lenient, even if she has no husband to fast
for her son.  Also a woman who gave birth within 30 days should not fast
for him in any case.  However, if she fasted once for him, it is a Neder
[vow] and must be annulled.

(10) Until his son is 30 days old, he does not have to fast for him.

Regarding the matter of permitting first borns to eat at a Seudas
Mitzvah [a meal celebrating a mitzvah], this depends on the local
custom.  There are places which are accustomed to be stringent;
according to this, one who wishes to eat at the meal of a Pidyan Haben
or Bris Milah must have Hatarah [annulment of a vow] (because the custom
is equivalent to a vow).  Notwithstanding, the Mohel, Sandek [man who
holds the baby during circumcision], and the father of the boy may eat
even without Hatarah, because it is their Yom Tov.  Even so, they must
repay the fast with another, after Pesach.  There are places where the
first borns are accustomed to be lenient and to eat at a Seudas Mitzvah.
We are so accustomed today in many places in our lands to be lenient and
eat even at a meal [celebrating the] completion of a tractate.  And even
if the first borns themselves have not learned the tractate,
nevertheless, since this is a Seudas Mitzvah for the one who completes,
they are included in his Seudah.  The custom is to gather to the one who
is completing before he completes, then he completes the tractate before
them and they hear it and are included with him, then they make the

[All errors in translation are mine.]


End of Volume 6 Issue 90