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Kicking settlers out of their homes in the eyes of Halacha
By Dayan Shlomo Cohen, Badatz Ahavat Shalom, Yerushalayim
The Jewish settlers of Ammona in the West bank were shocked by the recent ruling of the Israeli Supreme Court that they are to be evicted by the 25th of December.
The settlement was founded many years ago by the Israeli government and the settlers were encouraged and financially supported to move by the State. Over the years it was discovered that while it was thought that the land was the property of the State, in fact it was privately owned, making the settlers unwittingly into thieves.
All efforts to financially appease the legal owners failed, and the Israeli Knesset is trying to pass a law that in any such case, where a settlement was built unintentionally on the land of another, the owner, while receiving handsome financial compensation, must give up his land.
The law is receiving tough opposition both in the Knesset and from the legal profession who claim the law is illegal, as it permits the theft of land, and are refusing to defend such a law in the Supreme Court.
In this article, I will examine how Jewish monetary law relates to the eviction of these settlers and the proposed law.
Stolen Property
The Shulhan Aruch rules[1] that real estate can never be stolen. Even if it was sold a thousand times over and the owner gave up all hope of retrieval, nevertheless the land itself must be returned to its original owner (besides for certain exceptional cases) without the owner having to pay any compensation to the buyer. The last buyer in the chain reclaims his money from the person who sold to him, and so on, until the party who bought the land from the thief must find the thief in order to get their money back.
It would therefore seem that the settlers of Ammona, who received the land from the State of Israel, that did not know that it was privately owned, must return the land, and may claim compensation from the State.
The Repenting Thief
However, the Shulhan Aruch also rules that our sages made a special enactment to help a thief repent (“Takanat HaShavim”).
According to the strict letter of the law, if a thief stole a large beam and used it to support a building, since the beam is in the same condition that it was when stolen, the thief must demolish the whole building to return the beam to its owner, and cannot just pay the owner its value. Our sages, worried that the thief would refrain from repentance because of the large loss he will suffer, enacted that in such a case one can return the monetary value of the beam.
Possible Exceptions
The Rama rules that this only applies to stolen moveable property, but not to stolen real estate, concluding that where land was stolen, any buildings built on that land must be demolished, and the land returned to its owner.
The reason why this enactment does not apply to land, explains the Sma, is because the owner of land is usually either registered or well-known to all, and the builder should have been able to check if it was stolen, but did not do so, and therefore deserves no protection, while in the case of stolen moveable property, such a check is not generally feasible.
The Levush gives a different reason, explaining that in the case of moveable property, the thief could easily hide it and not repent to save himself from the great expense of demolishing his building, while with land he cannot, and therefore the enactment was not required.
The Mabit[3] claims that where land was stolen unintentionally it could be that the enactment applies, while the Mishne LaMelech disagrees.
Sparing a Fellow’s Losses
The Sha’ar HaMishpat has an entirely different approach to this issue:
The Gemara[4] cites Ribbi Yohanan ben Beroka who says that there is a special condition that Bet Din made which applies to all such cases. The condition, as illustrated by the following case, is as follows:
Two Jews were walking through the desert, one carrying a barrel of honey and the other a barrel of wine (the presumption is that the honey is worth much more than the wine). If the barrel of honey was cracked, with the honey slowly dripping away and being lost, the party carrying the barrel of wine is obligated to throw out his wine, using the now empty barrel to catch the honey of his fellow. The owner of the honey must then pay the owner of the wine the value of his wine.
We see from here a tremendously important principle in Jewish monetary law. Even though it is the right of the wine owner to refuse to throw out his wine, nevertheless, he is obligated to do so to save his fellow from a substantial loss.
The application of this principle to the settlers of Ammona is clear. It would mean that Bet Din would obligate the original owners of the land to accept financial compensation in order to prevent the eviction of hundreds of people from their homes.
Maran & the Rama
Whether or not this principle is the Halacha, however, is disputed. The Rambam omits this principle, and so does the Shulhan Aruch – who usually follows the Rambam in cases of monetary law.
The Rama, however, does bring this principle[5], but adds that there are those who disagree. [In the traditional print of the Shulhan Aruch there is a printing error, and this Halacha is printed in block type, as if it were the opinion of the Shulhan Aruch and not the Rama. This is an obvious mistake, as the Shulhan Aruch would not rule against the Rambam without explaining himself. All Poskim agree with this, and indeed, in more recent prints of the Shulhan Aruch, this error has been corrected.]
Party in Possession
In all cases of Halachic disagreement in Jewish monetary law, it is the party in possession who has the upper hand and can claim that the Halacha is in accordance with the opinion that favors it (“Kim Li”).
In the case of land, the buyer would not be considered the party currently in possession, rather the original owner. However, in the case of Ammona, where the identity of the original owner has not been established, there would certainly be room to apply this principle as a compromise.
Conclusion
To conclude, the reader can see that the Torah has a more compassionate approach to the eviction of settlers who mistakenly settled, built on and developed the land of another, and the proposed law which is under so much criticism as being against international law and morally wrong does have a basis in Jewish monetary law.
All those who are fighting for righteousness should take a look at the writings of the people who taught the world not to steal, and whose Divine laws mandate a fair compromise, taking the suffering that could be caused into account, rather than following the strict letter-of-the-law
Sources:
[1] Hoshen Mishpat 371:1 [2] Ibid. 360:1 [3] Vol.3 Ch. 143 [4] Bava Kama 81b [5] Hoshen Mishpat 264:5