Volume 8 Number 32

Subjects Discussed In This Issue: 

Conquest of Land in Erez Yisrael
         [Shaul Wallach]


From: Shaul Wallach <f66204@...>
Date: Fri, 02 Jul 93 13:17:17 IDT
Subject: Conquest of Land in Erez Yisrael

     This is the first of two parts in my latest contribution to the
discussion on conquest of land in Erez Yisrael which started about 5
months ago. [ Note, I have put the two parts together. Let's see if we
have problems getting it through the mail systems out there. - Mod.]
Due to the complexity of the issues which arose, and my
own unfamiliarity with the subject, it took me many hours of searching
and study to deal with the last responses. For those who wish to review
the subject, the relevant postings are found in volume 6 of mail-jewish,
numbers 34, 43, 83, 90, 95, 99 and 104 (ftp to nysernet.org, cd to
israel/lists/mail-jewish/volume6, then get v6n34, etc.)

     At this point I wish to thank all those who have contributed so far
for their thoughtful comments. You have stimulated me to do some very
serious Tora study, and may the QB"H guide us to bring up the learning
according to halakha. May you be blessed with wisdom of the Tora, as Rabbi
Yishma`el said (Bava Batra 175b): "One who wishes to become wise should
occupy himself with property laws, for their is no profession in the
Tora greater than them."

     Here is a brief summary of the problem and my perspective to it:
The original question was whether people planning to settle on land
that was expropriated from Arabs after 1948 should be concerned with
the possibility of gezel (theft). In answer to this it was argued that
there is no problem because all the lands conquered became the property
of the State of Israel by virtue of qinyan kibbush milhama (acquisition
of wartime conquest). Subsequent discussion has centered on just what
qinyanim there are for land and under what circumstances.

     My own view on just what course should be followed in practice
has become more refined but basically unchanged in essence. Here are
the main points as I see them (tentatively, again, of course):

1. The Arabs living in Erez Yisrael before 1948 had halakhically
   valid titles (qinyanim) to the lands they held, and therefore
   a new qinyan was required by the Jews in order to take them
   over from them.

2. There is disagreement over whether the wars the State of Israel
   has waged in all their aspects require a King and Sanhedrin, and
   consequently it is uncertain whether (according to the Rambam)
   the conquests confer a valid qinyan to the lands taken.

3. Even to those who affirm the qinyan of conquest, it may be that
   this applies only to lands actually contested in battle, but not
   to lands that were abandoned by the Arabs in advance.

4. Assuming the conquest was valid, it is not clear whether the Arabs
   who remained retained their qinyan to the lands they continued to
   hold, because the State of Israel itself recognized their previous
   titles to the land, and only expropriated them under a new law.

5. If we apply the principle of dina demalkhuta (law of the kingdom) to
   these properties, then any land expropriated in violation of the
   law is considered stolen.

6. It follows, therefore, that to avoid any possibility of gezel (theft)
   anyone planning to settle on formerly Arab land should make sure in
   advance that the land was acquired strictly according to law.

     The first part of this article deals with points raised by Ezra
Tepper, Nachum Issur Babkoff and Yisrael Medad, primarily on the
issue of the Arabs' previous title to the lands. The second part
is devoted to the points Danny Skaist raised about the Israeli

     In mail-jewish (v6n90), Ezra L. Tepper wrote as follows:

>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 same passage in the Talmud (Gittin 38a) goes on immediately
to show that non-Jews can acquire possessions from Jews by hazaqa
("holding on" or "force", my additions in parentheses):

      ... We have found (that) a non-Jew (acquires title by hazaqa
      from) a non-Jew. Where do we (learn that) a non-Jew (acquires
      title by hazaqa from) a Yisrael? As it is written, "... and
      he captured from him (i.e. from Israel) a captive" (Num. 21:1).

As Rashi explains, the fact that the verse calls the slave a captive
shows that the king of Arad acquired possession by taking hold. The
Tosafot ("Aval Behazaqa Lo") explain that this hazaqa refers to that
of conquest by war. It is true that the Davar Avraham (Vol. 1, 11)
cites many Rishonim who differ with the Tosafot (see, for example,
Hasagot Ha-Rava"d to the Rambam, Hilkot Gezela wa-Aveda 9:1, who
explains that the verse in Numbers refers to the case where there
was ye'ush (loss of hope) and that this is why the slave was
acquired); however, it appears that the Rambam agrees with the
Tosafaot because he likens slaves to land (eg. op.cit. 8:14),
which cannot be lost by ye'ush.

     Although some scholars interpret this possession as referring
only to the fruits of the slave's labors and not to his body, R. H. Y.
Lipkin (in "Ba-Zomet: Ha-Torah weha-Medina", Zomet Institute,
Jerusalem, 5751, vol. 3, pp. 290-293) concludes from this passage
that non-Jews acquire property by conquest from Jews just as they
do from other non-Jews.

      The question of conquering land specifically in Erez Yisrael
by non-Jews was brought up by R. Moshe Mi-Coucy in his Sefer Mizwoth
Gadol, Positive Commandment 133, which deals with the obligation to
take out tithes from agricultural produce. Here is what he wrote
(toward the end of the section, my additions in parentheses):

     ... If a non-Jew sold to a Jew fruits attached (to the ground)
     after they came to the time of tithes, and the non-Jew smoothed
     them (when they were) in the Jew's possession, they are not
     liable to terumah and ma`aser, even from their words (i.e.
     miderabbanan or Rabbinically, as opposed to Biblically),
     because they arrived to the time of (i.e. became liable to)
     tithes while in the non-Jew's possession and the non-Jew
     smoothed them, even though they are in the Jew's possession.
     And this is a great taqana (enabling measure) for those who
     live in the Land of Israel at this time, to buy the grain
     of non-Jews after it is finished (i.e. the finishing labor -
     "smoothing" - which makes it liable to tithes), because even
     from a Jew's grain there is no obligation except rabbinically,
     according to Rabbanan de-Rabi Yose (i.e. the Sages who differed
     with R. Yose), and that of a non-Jew is completely exempt.
     And we should not be strict to say that the non-Jews are
     land thieves and land cannot be stolen (i.e. change ownership
     legally by theft), because they bought them by conquest. And
     even though we are concerned in the chapter "Lulav Ha-Gazul"
     (Sukka 30a) about the matter of the Hosha`na, there is a
     difference, because (then) the Jews were many and they had
     lands, and they (non-Jews) were stealing and taking by force
     from them, and also the non-Jews were more forcible than
     what they are now. ...

>From this it is clear that R. Moshe of Coucy holds that a non-Jew
can acquire land by conquest even from a Jew in the Land of Israel.
The modern authority Kaf Ha-Hayyim cites the above passage in his
commentary on Orah Hayyim 649:3, in which he adopts a lenient
view against that of R. Moshe Isserles, to permit the taking of
the four species for Sukkot from the field of a non-Jew even
in Erez Yisrael.

     It seems to me that even the Rambam, who does not admit the
possibility of land changing ownership by theft even in the case of
ye'ush (giving up of hope on the part of the owner, cf. Hilkot Gezela
wa-Aveda 8:14), would agree that the original owners and their heirs
lost ownership during the Exile. First of all, no such heir living
today can point to any one tract of land and say it is his. See
Hilkot Sheluhim wa-Shutafim 3:7 - "... for this, who can say he has
a part of Erez Yisrael? And even if it is ra'uy ("proper", i.e. his
rightful inheritance), it is not in his possession (eino birshuto)."
Secondly, no one can win his inheritance in any court of law (cf.
Bava Mezi`a 7a, Hilkot `Arakhim wa-Haramim 6:23), so practically
speaking he has lost ownership. I am aware that "eino birshuto"
doesn't mean that it doesn't belong to him (the passage in Bava
Mezi`a 7a itself makes this distinction), but in this case, where
the rightful heir has lost all trace of his land, it would seem
reasonable that he has also lost his qinyan (ownership) to those
who currently hold it. The status of such lands whose rightful owners
are unknown would seem to be like those of a ger (convert) who left
no heir, which are acquired by the first one who takes hold of them
(Rambam, Hilkot Zekhiyya wu-Matana 2:1).

     Alternatively, we could reasonably argue that the non-Jews had
valid rights to their lands by virtue of dina demalkhuta (law of the
kingdom). See, for example, Rambam Hilkot Gezela wa-Aveda 5:11-18.
Since the Ottoman Empire instituted land registration in Erez Yisrael
starting in the 1850's it would stand to reason that the lands actually
belonged to whom the authorities said they did.

    As a side note, while the Rambam does not admit the application
of ye'ush to land, the Tosafot (Sukka 30b "Qarqa` Einah Nigzelet",
Bava Batra 44a "Dawqa Mekher ..."), following the Yerushalmi Kilayim
(7:4) do hold that it confers ownership to the thief. This view is
discussed by R. Shalom Albeck in his "Dinei Memonot ba-Talmud" (Dvir,
Tel-Aviv, 5736), pp. 72-73 and pp. 550-551. See also the Shulhan `Arukh
Hoshen Mishpat 236:9 and 371:1 and the commentators, particularly the
Qezot ha-Hoshen and the Netivot Mishpat on the latter, and the
discussion by the late Chief Rabbi Isaac Herzog in his "The Main
Institutions of Jewish Law" (Soncino, London, 1965), Vol. 1,
pp. 101-112.

>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).

     I don't see how this could be done even if Eliyahu ha-Navi were
to determine the proper heirs of each piece of land. This is not one
of the property disputes in which the Sages said "it shall be left until
Eliyahu comes", which we don't say when one side is holding the property
(muhzaq). No court of law could take the land away from the holders of
of the land (Jewish or non-Jewish), either in 1881 or in 1948, as
Warren Burstein has already pointed out. Even if the lands were taken
forcibly from the original owners (by the Sicaricon, say, and not by
conquest), there are cases in which they do not revert back to them
(see the various sections of Hoshen Mishpat 236).

     Ezra closes with a citation of the Mishna in Gittin to support
his opinion that very little land was actually sold to non-Jews:

>                 ... 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.

     While there are 2 readings of this Mishna, neither of them reads
"loqe" with a final he (meaning "receives lashes" as Ezra explains),
but rather "loqeah" with a final het (meaning "buys"). The meaning of
the Mishna as printed in the Talmud (and as Rashi had) is that one
who sells his field to a non-Jew is required to buy the fruits from him
every year (even at a high price) and bring the bikkurim (first-fruits)
to the Temple. The purpose of this ruling is to discourage people from
selling their fields in Erez Yisrael to non-Jews and to encourage those
who had sold their fields to redeem them. However, for selling to a
non-Jew there is no punishment of lashes (malqot); this is actually the
Biblical punishment for transgressing a negative commandment.

     In mail-jewish (v6n99, v6n104), Yisrael Medad writes:

>        According to the Gemara, by simply walking through the land, we
>may assert possession because it is ours; we just have to do something
>to display our ownership (even though it is ours even without doing
>anything or us not even being on the land).

     According to Danny Skaist's clarification (part 2 of this article),
the act of walking is what constitutes the hazaqa by which the ownership
is actually conferred, not just a demonstration thereof.

>The source in the Gemara which I quoted (Vol. 6, No. 99) regarding
>obtaining possession by simply walking is found in the Yerushalmi,
>Kiddushin, First Perek (Chapter), Third Halacha (Ruling):
>"Hakol modin bamocher shvil l'chavero keivan shehilech bo knayo"
>(All recognize one who sells a path to his fellow; if he walks along
>it, he takes possession).
>There the source is the verse in B'reishit 13:17 - Avraham commanded
>by God to walk the length and breadth of Eretz-yisrael.

     The same passage is found in the Bavli (Bava Batra 100a). However,
according to halakha (Rambam, Hilkot Mekhira 1:13), simply walking
the length and breadth is not an act of qinyan unless the property
is meant for walking like the path, because only in this case does
his act serve him a beneficial purpose.

     Now to some of the points raised by Nachum Issur Babkoff
(mail-jewish, v6n99):

>1. The contributor claimed that according to the Ramban in his Sefer
>Ha'mitzvot, a king was necessary in order that a war should be
>considered "milchemet mitzva" (obligatory war). He even went so far as
>to quote from the late R. Kook in "Mishpatei Kohen", where it was stated
>that when there was no king, authorities returned back to the people,
>and questioned whether R. Kook had a source for that.
>R. Kooks source was no other than the same Ramban, in Sefer Ha'Mitzvot,
>where (in my addition, which is "Sefer Ha'Mitzvot L'Rambam" "Hotza'at
>Mossad Ha'Rav Kook") he says "...the king judge or anyone who has
>control over the people" ("kol mi she'ha'am b'yado").

     Unfortunately, I couldn't find this in Mishpat Cohen 144, although
R. Yehuda Gershuni does cite the Ramban on the question of the Urim and
Tumim (Barqai 1:43, 5743); the text as I found it reads "birshuto", not
"biyado". In any case, we have already pointed out that Rav Kook wrote
himself that the Beit Din is required for waging war.

>5. Another point to consider, is how to weigh the various opinions? As
>everyone knows, R. Ovadya is of the school whereby we "add up" the
>various opinions, and almost physicly weigh the oposing views, and the
>side which has more weight, "wins". Well, I have a surprise for some of
>you. According to R. Ovadya, HIS OWN OPINION IS OUTWEIGHED BY...
>HIMSELF!!! In 1969, in a "Torah Sh'Beal Peh" conference, he stated
>unequivecly that there was a possitive commandment to settle the land,
>and that it was FORBIDDEN to consider land for peace!

     With all due respect, according to the text of his talk as printed
in Tora Shebe`al Peh, Number 11 (5729), pp. 35-42, R. Ovadia dealt only
with the commandment of dwelling in Erez Yisrael itself. In this he
endeavored to show that even the Rambam agrees that it is a positive
mizwa from the Tora, against the opinion of the Megillat Esther who
responded to the Ramban. R. Ovadia did cite one authority to the
effect that the holy land should not be allowed to stay in the hands of
non-Jews, as a motivation for settling in E"Y. However, he did not deal
at all with the current issue of selling or handing over parts of E"Y
to non-Jews. There is no conflict whatsoever with what he said 20 years

>6. On a personal note, I feel that the issue is not "yishuv ha'aretz"
>and "pikuach nefesh", rather we should look for other instances where
>Hallacha weighs various PUBLIC INTRESTS against each other, in a context
>of public law. One such model I thought of was that of "pidyon
>sh'vuyim"-redeeming hostages, where one of the opinions is that we don't
>"overpay" kidnappers, so that "they (kidnappers) won't be tempted to do
>it some more" "d'lo ligrabu bei" (if I remember correctly). In other
>words, we do NOT save the individuals, who are necessarily in peril,
>when that MAY endanger the population at large.  Note: there the
>population at large, is a community! Here we are dealing with an entire
>country, and majority of the nation (in one place).

     One such example is the passage in Gittin 47a cited above.
According to Rav Ashi (ibid. 47b), the reason why the Mishna punished
the owner who sold his land to a non-Jew by requiring him to buy the
fruits, even at an inflated price, was to prevent the land from falling
permanently into the hands of non-Jews.

     Among the paramount public interests is the establishment of a
government according to the Torah in all its details. It's about time
we all started getting together and talking about practical ways to
restore the kingship of the House of David and the Sanhedrin, in order
to help speed our final redemption!

     Now I will try IY"H to answer some of Danny Skaist's comments
(mail-jewish, v6n90), under the assumption that those who occupied the
land before 1948 had a valid qinyan (acquisition, title) to it.

     Danny's first point is that "Land CAN'T change ownership without
a valid kinyan." We all agree that this is the proper starting point.
The central issue over which our discussion revolves is just what the
status of the lands in question is and what means of qinyan apply.

     The first question is whether the lands were still owned by the
Arabs at the moment they were captured by the army or not:

>>             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 ?

      If the Arabs fought and had to be driven out, there is no
question that they did not renounce ownership of their lands, and
the army's qinyan to them is by virtue of conquest. But if they
fled, it still seems to me that according to the Hazon Ish, their
property became hefqer (renounced property) before the army took
possession of it.

      Another possible difference between fighting and running might
result from the very nature of conquest and the reason it confers
on the conqueror the right to the property conquered. R. Alter David
Regensberg, in his "Mishpat Ha-Zava Be-Yisrael" (5709), p. 114, likens
the status of the conqueror to that of a thief found digging in (Exodus
22:1). The Talmud (Sanhedrin 72a) rules that if such a thief took
objects, he is exempt from paying for them, because "he bought them
with blood." The reasoning is that since he knew the owner would have
killed him while trying to steal, it is as if he had sacrificed his
life, and therefore has bought everything he took (qam leh bederaba
minah). Likewise the conqueror - in going to war he has risked his
life, and this gives him the right to take whatever he captures in
war. It would then stand to reason that the conqueror's act is
considered kibbush (conquest) only when his life is at risk; i.e.,
when the owner puts up a fight, not when he flees before any
engagement. Other authorities have likewise defined kibbush as
theft in the presence of the conquered. See also R. H. Y. Lipkin,
"Ba-Zomet", Vol. 3, p. 290, in the name of the Kapat Temarim; and
R. Zevi Pesach Frank in Har Zevi, Pt. 2, Orah Hayyim 87.

     Before taking up Danny's comments on the Hazon Ish, let us
quote him here in full (Demay 15:1):

       On the matter of the olives which they took from the Arabs
     who left them and departed, it appears that the fruits are
     considered their lost object (avedatan) and became hefqer,
     and if the Yisrael took them after they brought a third (of
     their growth), they are exempt from the tithe by the law of
     hefqer, since they were hefqer one hour after they brought
     a third, even though the smoothing was in the hands of the
     one who took them, as is explained in Hazon Ish Shevi`it 2.
     And the qinyan of the Yisrael was by a tiqqun ("fixing", act
     of improvement), eg. if he watered or weeded and the like,
     for since the fruits are attached (to the ground), their
     qinyan is by the law of the land, which is acquired by hazaqa.
     And even if the Yisrael made these improvements by means of
     non-Jewish workers, the opinion of Qezot ha-Hoshen in the
     responsum printed at the end of the book Avnei Milu'im 25 is
     that it is considered a qinyan.

       And it is also possible that since the whole acquisition of
     the non-Jews in E"Y (Erez Yisrael) was by conquest of war, when
     they left it and their control of it lapsed, so did the acquisition
     lapse, and it is possible for the Yisrael to take it as one takes
     the hefqer, and therefore they acquired all the fruits by any
     digging whatever in the earth.

Here are Danny's comments on the Hazon Ish:

>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.

      From the language it looks clear to me that the Hazon Ish likened
the olives to the land and that the latter was hefqer as well.


     Here, too, it seems to me that according to the Hazon Ish, the
mere fact of the Arabs' flight was equivalent to a renunciation of
their ownership of both the olives and the land, which became hefqer.
This is what the first part of the text implies. It might be that
the latter part of the text (starting with the sentence "It is
possible also...") could mean that the Hazon Ish was not sure that
their mere running away implied renunciation (hefqer) and therefore
proposed an alternate rationale for giving the land the status of
hefqer; namely, the cessation of their qinyan by conquest, leaving
the land with no valid owners and therefore hefqer by default.

>>                                             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

      From his language above, it is quite clear to me that the Jews
who took the olives acquired them not from the State of Israel, but
from hefqer; that is, from no owner at all. It looks to me that it
would be a very forced explanation to say that the State (or the army)
acquired the land (and the olives with them) by conquest and then
renounced ownership, making them hefqer and free for any Jew to take
for himself. This latter scenario is, in contrast, precisely the
explanation Rabbi Zvi Pesach Frank gave in allowing the Jews of
Jerusalem to take for the Seder of Pesah the maror they found in the
gardens of Dir Yassin after it was captured by the Irgun and the Hagana
(Har Zevi, Pt. 2, Orah Hayyim 74). But it is not what the Hazon Ish is
saying above.

      One possible explanation is what I said above; namely, that
the Hazon Ish did not recognize the qinyan of conquest by the army.
Another possibility is that the Hazon Ish was not dealing with a case
in which the Arab lands were conquered by the army at all, but in
which the Arabs merely fled without battle and the Jews came to take
the olives before the army or the state came and took control.

      So far I have not been able to find any citations of the Hazon
Ish relating to the qinyan of the State of Israel, and will be most
grateful to anyone who can help me on this.

>>                      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,

     As in Rambam, Hilkot To`en we-Nit`an, chap. 11 and 12.

>                                           possesion in the case of
>movable property etc.

     Ibid., chap. 8. This first type of hazaqa is used as evidence in
case of a dispute over the ownership of an object.

>                       The second meaning is Kinyan [changing
>ownership], done by working the land or even by locking/unlocking the
>gate etc.

     As in Rambam, Hilkot Mekhira 1:8.

>           Hazaqa in this case is not proof of ownership but the KINYAN

     Yes; it is this second meaning I had in mind, and therefore my word
"demonstrate" was inaccurate as you pointed out before. Cf. Rambam, Hilkot
Zekhiyya wu-Matana 2:2 where eating the fruits 3 years doesn't confer
ownership unless this second act of hazaqa was carried out.

>Land changes owners by three methods (of kinyan). Money, contract, or Hazaka.

     Rambam, Hilkot Mekhira 1:3.

>According to the Rambam: Hazaka is only a kinyan if
>a) The previous owner is Jewish.

     See Hilkot Zekhiyya wu-Matana 2:1 for counterexamples. In general
hefqer is acquired by hazaqa (ibid. 1:1).

>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.

     As in Hilkot Mekhira 1:9-10.

>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.

     This is what the Rambam rules in Hilkot Mekhira 1:17. However,
in Hilkot Zekhiyya wu-Matana 1:14-15, he rules that he does acquire
by hazaqa if this is the law of the kingdom (dina demalkhuta) in force
at the time.

>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.

     Unless they were hefqer at the time (according to the Hazon Ish),
as we discussed above. But there is a difficulty in your scenario too.
Did the State of Israel (or the army) really give permission to private
individuals to take these lands for themselves? I can understand letting
them take the fruits, as R. Frank in fact explained that this was the
case in Dir Yassin (Har Zevi, op. cit.), but not the land itself.
Perhaps the historians can help us out on this point.

>>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.

     What I meant was that the Arabs who stayed on their lands didn't
lose ownership of them in the first place. The fact that Arab lands
came under Israeli sovereignty doesn't mean that the state automatically
assumed ownership of them, although this might have been true for a
totalitarian state. What about private Jewish lands that were occupied
by the army during the war - would you hold that they, too, passed to
ownership of the state?

     It is true that the Hebrew word kibbush (which we translate here
as "conquest") does not mean driving out but only placing under control
as in Gen. 1:28. See also Rambam, Hilkot Melakhim 6:1, where the
residents of a city who make peace are to be "kevushim tahat yadam";
i.e. placed under Jewish control. Just what amount of control is
necessary for the conquest to be called a kibbush has been discussed
by R. Ovadiah Yosef (Tehumin 10:44 (5749)) and R. Nahum Eliezer
Rabinowitz (Tehumin 4:302-305 (5743)). However, this still doesn't
mean that their property is automatically acquired by the king or
his soldiers. In the same halakha, the Rambam explains that "the
mas (tribute) that they shall accept is that they shall be ready
for the king's service with their body and property," not that they
and their property actually belong to the king. And in the next
halakha (Melakhim 6:2), he rules that the king may take half of
their property and leave them half, whether movables or land, as
he wishes. From this it appears that until the king actually takes
their property, they still have a valid qinyan to it.

     In our case it may be that the Arabs who remained retained
ownership of their land by virtue of dina demalkhuta as well. Their
continued hazaqa would then reaffirm their previous qinyan according
to the Rambam in Hilkot Zekhiyya wu-Matana 1:15. Just as the British
recognized the Ottoman system of land registration when they conquered
Erez Yisrael, so did the State of Israel. To this day we still call
registration of plots by its Turkish name of "tabo". The fact that a
special law was enacted (the 1950 Law of Absentee Property) in order
to facilitate legal expropriation of the lands conquered and their
transfer to the Jewish National Fund seems to me a recognition by the
state that until the actual act of expropriation they still belonged
to the Arabs, as far as the state was concerned. If one's intention
is necessary in order to acquire hefqer (Rambam Hilkot Zehiyya
wu-Matana 2:12), it seems that the same is the case for conquest as

     If, then, we apply dina demalkuta to the lands kept by the Arabs
after 1948, then the expropriation would also have to be strictly in
keeping with the Law of Absentee Property of 1950 (and subsequent
enactments prescribing proper compensation for those lands taken). It
would seem that according to the Rambam, Hilkot Gezela wa-Aveda 5:13,
there is a possibility of gezel (theft) involved in such cases where
the expropriations violated the law, unless the former owners have
since accepted full compensation and thereby renounced all claims to
their property.

>>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

     See, for example, R. Frank in Har Zevi Pt. 2, Orah Hayyim 87,
there according to the Rambam the conquest is valid only under a duly
appointed king. See also R. H. Y. Lipkin in "Ba-Zomet" (op. cit.)
who likewise raises questions about the status of a conquest without
a King and Sanhedrin. Moreover, before May 15, 1948, Israeli currency
was not legal tender, and it is therefore possible according to
Hilkot Gezela wa-Aveda 5:18 that conquests before this date were
invalid because the state was not yet recognized. This doesn't
mean, however, that dina demalkhuta could not be applied later on.
I only doubt the validity of the conquest in itself as a qinyan.

     As an example of land that was left in the hands of the original
owners, we can cite the Temple Mount which was originally the
threshing-floor of Arawna the Yevusi (II Samuel 24:16-24). King David
insisted on buying it from Arawna, even though he had already captured
Jerusalem and made it his capital. As the Rada"q explains, David let
them keep houses, fields and vineyards in return for the tribute they
paid after accepting the 7 mizwot of Benei Noah. R. Ya`aqov Ariel
(Tehumin 5:176-177, 5744) and others have explained that David did
not want to rely on the qinyan of conquest for such a sacred purpose
of building the Temple, but bought it as an everlasting possession
of the Jewish people for the benefit of the whole world. May it be
speedily built in our day. Amen.


Shaul Wallach


End of Volume 8 Issue 32