Dec 16, 2010

Halachic Response by Rabbi David Golinkin: Selling an apartment to a non-Jew in the Land of Israel- permissible?

Is it permissible to sell or rent an apartment to a non-Jew in the Land of Israel? (1)

By Rabbi David Golinkin


Question: On December 7, 2010, The Jerusalem Post reported ( that a group of forty municipal rabbis in Israel published a letter which said that it is forbidden to sell or rent apartments to non-Jews (nokhrim) in Israel.

Amongst the reasons given for the prohibition are the danger of intermarriage and the lowering of real estate prices in areas where non-Jews live. Gentiles' "different lifestyle from Jews" can endanger lives, they wrote.

If a Jew sells or rents property to a gentile, his neighbors must warn him, and if he does not change his ways, the neighbors must avoid the person, and may not conduct business with him, according to the petition. A person who rents or sells to non-Jews also may not get aliyahs in synagogue.

Amongst the municipal rabbis who signed the petition are Rabbi Yaakov Edelstein of Ramat HaSharon, Rabbi Haim Pinto of Ashdod, Rabbi Dov Lior of Kiryat Arba, Rabbi David Abuhazeira of Yavne, Rabbi David Bar-Chen of Sderot, and others.

In addition, one of the best-known National-Religious rabbis, Rabbi Shlomo Aviner, signed the letter, as did [Rabbi Ovadiah] Yosef's son, Rabbi Yaakov Yosef...

Another ten rabbis reportedly plan to sign the letter...

Is this really the standard and only approach to this question in Jewish law?




I) "Lo Tehonem"


These rabbis object to handing over territories to non-Jews on the basis of Deuteronomy 7:1-2:

When the Lord your God brings you to the land that you are about to enter and possess, and He dislodges many nations before you... seven nations much larger than you... you must doom them to destruction, grant them no terms and have no mercy upon them (lo tehonem).


The simple meaning of "lo tehonem" is"have no mercy upon them" as translated above,but the Sages explained it to mean "do not give them a hold (hanayah) on the land" (Avodah Zarah 20a). Rabbi Daniel Sperber has shown (Netivot Pesikah, Jerusalem, 2008, pp. 63-71) that in the early, uncensored printings, Tosafot (to Yevamot 23a s.v hahu) and the Ba"H to Tur Hoshen Mishpat 249 interpret this to mean that one may not sell or give parts of Eretz Yisrael to any non-Jew. This was also the opinion of the Netziv in the nineteenth century (Responsa Meishiv Davar, Kuntress Dvar Hashemitah, fol. 58a) andthe Hazon Ish in the twentieth (Shvi'it 24, 3).


However, many authorities rule that this prohibition applies only to idol worshippers such as the seven nations mentioned in the verse, lest they "turn your children away from me to worship other gods" (Deut. 7:4). (Responsa of the Rashba, Part I, No. 8; the Meiri to Avodah Zarah 20a; R. Baruch Halevi Epstein, Torah Temimah to Deut. 7:2; R. Abraham Isaac Hacohen Kuk, Responsa Mishpat Kohen, No. 63 [which is based on the censored versions of the Ba"h]; R. Zvi Pesah Frank, Sefer Kerem Tziyon, Part 3, p. 13; R. Ovadiah Yosef, Torah Shebea'l Peh 15 [5733], pp. 31-32 and again in Tehumin 10 [5749], pp. 37-38; and cf. R. Yaakov Warhaftig, Tehumin 2 [5741], pp. 201-203).


Most of the Arabs in Israel today are Muslims and almost all halakhic authorities agree that Muslims are monotheists and not idol worshippers (Maimonides, Hilkhot Ma'akhalot Asurot 11:7; Responsa of Maimonides, ed. Blau, No. 448, p. 726; and cf. R. Yosef Kapah, Ketavim, Vol. 3, Jerusalem, 2002, pp. 1412-1416; Rashba as quoted by Tur Yoreh Deah 124; Taz to Shulhan Arukh Yoreh Deah 124, subparagraph 4; R. Hayyim David  Halevi, Aseh Lekhah Rav, Vol. 9, No. 13; R. Ovadiah Yosef, Responsa Yabia Omer, Vol. 7, Yoreh Deah, No. 12; R. David Frankel, Teshuvot Va'ad Hahalakhah Shel Knesset Harabbanim B'yisrael, Vol. 6 [5755-5758], p. 216).


Therefore, many authorities rule that it is permissible to sell or give parts of Eretz Yisrael to Muslims. (R. Raphael Meyuhass, Mizbah Adamah, Salonika, 1777, fol. 12b; Rabbi Kuk and Rabbi Frank quoted above; R. Yitzhak Isaac Halevi Herzog, Tehumin 2 [5741], pp. 169-179 which was abbreviated in Shanah B'shanah 5746, pp. 136-140; R.Shaul Yisraeli, Amud Hayemini, No. 12,  paragraph 3; and R.Ovadiah Yosef, Torah Shebe'al Peh 21 (5740), p. 14) as well as in Torah Shebea'l Peh 15 [5733], pp. 31-32 and in Tehumin 10 [5749], pp. 37-38).


Furthermore, even though many halakhic authorites claim that Christianity is a form of idol worship (see Rabbi David Frankel, ibid., pp. 213-215, 216-219), many others disagree and say that it is not (the Meiri in many places; Rabbi Moshe Isserles, Orah Hayyim 156, Rabbi Moshe Rivkes, Ba'er Hagolah to Hoshen Mishpat 425:5 and many more - see Rabbi David Frankel, ibid., pp. 219-224). Thus, according to many authorities, it is permissible to sell land in Israel to Christians as well.


II) The Approach of Nahmanides

Other opponents of selling land or houses in Israel to non-Jews rely on the opinion of Nahmanides. The book of Numbers (33:53) states: "And you shall take possession of the land and settle in it, for I have assigned the land to you to possess". Nahmanides interprets this verse as a positive commandment: "...that we may not leave the land in the hands of other nations ...and the Sages called this a commanded war". (Nahmanides' additions to Sefer Hamitzvot by the Rambam, No. 4 and cf. Nahmanides' commentary to the verse.)  In other words, we are commanded to conquer Eretz Yisrael and keep her in Jewish hands regardless of the danger and any loss of Jewish life that might occur in the process.


However, Nahmanides is the only one who considers it a mitzvah to capture and retain the land of Israel. (Maimonides, Sefer Hahinukh and others do not include it in their enumerations of the 613 mitzvot.) Furthermore, many have explained that even according to Nahmanides, this mitzvah only applies in the days of the Messiah (R. Isaac de Leon in Megilat Esther  to Sefer Hamitzvot ad. loc. and others).


III) Kiddush Hashem and Hillul Hashem

These two mitzvot relate to all of our relations with our non-Jewish neighbors; Kiddush Hashem is the sanctification of God's name and Hillul Hashem is the desecration of God's name. They stem from the same verse in Leviticus (22:32):  "You shall not desecrate My holy name, that I may be sanctified in the midst of the people of Israel - I am the Lord who sanctifies you".  This verse means that any good or holy act that a Jew does, sanctifies God's name in the eyes of his Jewish and gentile neighbors, while any bad or profane act that a Jew does, desecrates God's name in the eyes of the public.


Furthermore, Maimonides emphasizes that rabbis in particular must be careful about how they behave because any inappropriate behavior which causes people to criticize them is considered a hillul hashem (Hilkhot Yesodei Hatorah 5:11). There is no question that the letter published by the group of rabbis last week was a hillul hashem, which desecrated God's name in the eyes of the world. 


IV) Mishum Eivah

The Sages of the Talmud allowed Jews to do quite a number of activities related to non-Jews which were normally forbidden, mishum eivah - in order to prevent ill will (Entziklopedia Talmudit, Vol. 1, cols. 492-493, s.v. Eivah). Thus, even if one were to claim that it is forbidden to sell or rent property to non-Jews in Israel, it could be permitted mishum eivah. There is no question that such discrimination against non-Jews in Israel could lead to increased attacks against Jews in Israel and the Diaspora and to refusal to rent or sell homes to Jews in the Diaspora.


V) Mipnei Darkei Shalom

In the Tannaitic period (ca. 70-220 c.e), Jews, Christians and idol worshippers lived side by side in many towns and villages in the Land of Israel. A baraita which appears in Gittin 61a and parallels (see my responsum in the Teshuvot Va'ad Hahalakhah Shel Knesset Harabbanim B'yisrael, Vol. 6 [5755-5758], pp. 287-288)  lists a series of rabbinic enactments mipnei darkei shalom, because of the ways of peace, including feeding non-Jews, visiting their sick, and burying their dead. The Mishnah (Gittin 5:8-9) also lists a number of similar enactments. These sources do not relate to our specific topic, but renting or selling apartments to non-Jews in the State of Israel today would certainly be in the spirit of mipnei darkei shalom found in the Mishnah and beraitot.


VI) What is hateful to you do not do to others

There is a famous story in the Talmud (Shabbat 31a) about a convert who came to Hillel and asked to convert on condition that Hillel would teach  him the entire Torah while standing on one foot. Hillel replied: "Mai d'alakh saney l'haverakh la te'eveid, zo hee kol hatorah kula v'idakh peirushah hu zil gemor" - "what is hateful to you do not do to others, this is the entire Torah, the rest is commentary, go and learn".


For 1900 years, from the Destruction of the Second Temple until the twentieth century, Jews were discriminated against by non-Jews. More specifically, non-Jews frequently refused to sell land or rent houses to them. This is why Jews lived in ghettos for many centuries and this ghettoizing of the Jews reached its climax in Nazi Europe. Even in the United States, there were many cities and neighborhoods which posted signs "no dogs and Jews allowed". Now, after 1900 years, when we have our own sovereign State of Israel where we are the majority, we must follow the dictum of Hillel which he considered "the entire Torah", the most basic commandment in the Torah: "what is hateful unto you to do not do to others".


VII) Love the Stranger

The Torah contains many mitzvot related to the Ger Toshav or resident alien (see David Golinkin, Insight Israel: The View from Schechter, Jerusalem, 2003, pp. 85-89). While there is disagreement among rabbis as to whether these laws apply to non-Jews living in Israel today (see ibid.), the spirit of these Biblical and Rabbinic laws demands that we treat all non-Jews in Israel with respect for "you shall love him [the stranger] as yourself, for you were strangers in the Land of Egypt" (Leviticus 19:33-34).


VIII) The Laws of the State of Israel

Israel is a democracy which guaranties equal rights to all of its citizens and forbids racism or incitement to racism.


As I have shown elsewhere (Responsa in a Moment, Jerusalem, 2000, pp. 90-91), the democratic institutions of the State of Israel are not something to be "tolerated" outside of Jewish law. Rather, they are part and parcel of Jewish law -- and living in accordance with its laws is as important as observing Shabbat and keeping kosher. There are three ways of proving this assertion:

a)       The Talmudic sage Samuel, who lived in third-century Babylonia, coined the phrase "dina d'malkhuta dina" - "the law of the land is the law" (Nedarim 28a and parallels), which meant that Jews must obey the laws of the countries in which they reside. But many rabbis state that this applies to a Jewish state as well(Entziklopedia Talmudit, vol. 7, cols. 307-308).If so, Jewish law requires Jews to observe the secular laws of the State of Israel.

b)       Throughout Jewish history, every Jewish kahal, or community, was governed democratically on the basis of a passage in the Talmud(Bava Batra 8b; cf. Menahem Elon, Jewish Law: History, Sources, Principles, Philadelphia and Jerusalem, 1994, Chapter 19; Ephraim Kanarfogel, Proceedings of the American Academy of Jewish Research 58 (1992), pp. 71-106). The State of Israel is the modern equivalent of the kahal, and its democratic institutions must be treated with the same respect and authority as the medieval kahal.

c)       Rabbi Abraham Isaac Kuk and Rabbi Shaul Yisraeli, two of the foremost religious Zionists of the twentieth century, have explained that, in our day, the democratically elected government and leaders of Israel have taken the place of the king and must be obeyed accordingly (Responsa  Mishpat Kohen, Jerusalem, 1984, No. 144, pp. 337-338, and Amud  Hayemini, Tel Aviv, 1965, Part I, Nos. 7, 9).


IX) The Fifth Tur

There is a famous dictum which I heard from Rabbi Theodore Friedman z"l many years ago. One of the standard codes of Jewish law is called Arba'ah Turim, The Four Columns, written by Rabbi Jacob Ben Asher in Toledo in the 14th century. However, when a rabbi writes a responsum or makes a ruling in Jewish law he must also rely on the fifth Tur - hasechel hayashar - common sense. This too is lacking in the letter of the rabbis published last week.


X) Conclusion

Thus, according to Jewish law, it is perfectly permissible to sell or rent houses to non-Jews in the Land of Israel for all of the reasons cited.


Finally, if we are concerned that certain areas of the country such as the Galilee need more Jews, we must achieve that by Zionist education, not by discrimination. If there is concern that blocks of apartments are being bought up by Iran and Saudi Arabia, then the government of Israel must deal with this national problem.


David Golinkin


8 Tevet 5761


1.    This responsum is partially based on my book Responsa in a Moment, Jerusalem, 2000, pp. 32-33, 90-91; and cf. R. Shlomo Brody, "Ask the Rabbi", The Jerusalem Post Magazine, November 19, 2010, p. 43.