SALT - Thursday, 11 Iyar 5779 - May 16, 2019

  • Rav David Silverberg
            Parashat Behar introduces the prohibition of ona’a, which forbids significantly overcharging or underpaying for merchandise.  The context in which this prohibition is introduced is the law of yovel, which requires the return of all purchased lands to their original owners with the onset of the jubilee year.  After presenting the law of yovel, the Torah commands (25:14) that when land is sold, a calculation must be done to determine the property’s value in consideration of the temporary nature of the sale.  Meaning, the value must be established based on the number of years remaining until the yovel, because this is the number of years when the buyer will be benefitting from the land.  Chazal derived from here the general prohibition against charging or paying an unfair price when a transaction is made.
 
            The Ramban, in his famous comments to this verse, notes the Mishna’s ruling (Bava Metzia 56a) that the law of ona’a applies only to metaltelin – moveable items, as opposed to karka’ot – land.  Surprisingly, despite the fact that the Torah introduces the law of ona’a in reference to the pricing of land as affected by yovel, this law specifically does not apply to land, and pertains only to moveable property.  How, the Ramban asks, could Chazal exclude real estate transactions from ona’a, if it is in reference to such transactions that the concept of ona’a is presented in the Torah?
 
            The Ramban answers by boldly positing that the ona’a prohibition indeed applies even to land, and it is only in regard to certain details that land is excluded from this law.  Halakha establishes that if the difference between the market price and the price paid is large enough (a “shetut”), the violator must pay the difference to the other party, and if the difference is even higher than this amount, the sale is revoked.  The Ramban suggests that these provisions apply only to metaltelin, but the prohibition of ona’a applies to all transactions, including land exchanges.  This is how the Ramban reconciles the law excluding land from ona’a with the fact that this prohibition is introduced in the context of land transactions.
 
            A different answer emerges from the comments of Chizkuni to this verse.  Chizkuni writes that the law of ona’a applies to land transactions only when the laws of yovel apply, such that all land transactions are temporary.  The institution of yovel applies only when the majority of the Jewish People reside in Eretz Yisrael, and according to Chizkuni, and it is only then – and in Eretz Yisrael – when the prohibition of ona’a is applicable to transactions of land.  When the mitzva of yovel is not binding – such as after the exile from the Land of Israel, and anytime outside the Land of Israel – the ona’a prohibition does not apply to land transactions.  In light of this distinction, it is perfectly understandable why the Torah introduces the law of ona’a in the context of land transactions, despite the fact that such transactions are not included in the law of ona’a.  The Torah here speaks of how land transactions are affected by the laws of yovel – and when the laws of yovel are applicable, according to Chizkuni, even land transactions are included under the prohibition of ona’a.
 
            The explanation of Chizkuni’s position is that when the laws of yovel apply, the sale of land in Eretz Yisrael is more of a lease than a sale.  The buyer receives rights to the land only temporarily, until yovel, and thus this arrangement does not qualify as the sale of land.  It seems likely that Chizkuni follows the position of the Mordekhai (Bava Metzia 305) that the law of ona’a applies to leasing land.  Therefore, when the yovel is observed, all land sales in Eretz Yisrael are actually leases, and thus the laws of ona’a apply, despite the general rule that ona’a does not apply to land transactions.
 
(See Rav Moshe Kagan’s Chemdat Moshe, Parashat Behar)