Selling Land to a Non-Jew in the Land of Israel

The prohibition against selling land in the Land of Israel to a non-Jew is stated in several verses of the Torah.

The first verse appears in Parashat Mishpatim (chapter 23, verse 33): "לא ישבו בארצך פן יחטיאו אותך לי כי תעבוד את אלהיהם כי יהיה לך למוקש" — “They shall not dwell in your land, lest they cause you to sin against Me; for you may serve their gods, and it will be a snare to you”{1}. Another verse appears in Parashat Va’etchanan (chapter 7, verse 2): "ולא תחנם" — “and you shall not show them favor.” As the Gemara in Avodah Zarah (20a) derives, three teachings are learned from this verse:

A. Do not ascribe charm or favor to them: it is forbidden to praise a non-Jew and say how handsome he is or how fine his deeds are. This prohibition is so that we should not learn from his improper ways.

B. It is forbidden to give a non-Jew a gratuitous gift.

C. It is forbidden to sell land in Eretz Yisrael to a non-Jew. This is derived from "לא תחנם" — do not give them a foothold, i.e. settlement, in the land.

Regarding the first prohibition, "לא ישבו בארצך" and the like, the Rishonim dispute whether it applies specifically to the seven nations or even to all nations. Rashi in Gittin (45a), the Semag (mitzvah 49), Ramban (Devarim 20:10), and Raavad (Laws of Idolatry 10:6) maintain that the prohibition refers to the seven nations. Later authorities asked: if it refers to the seven nations, the Torah also says "לא תחיה כל נשמה" — “You shall not let any soul live.” The Chazon Ish (Even HaEzer 146) answers that the verse refers to a case in which it is impossible to kill them.

However, the Rambam (Laws of Idolatry 10:6) holds that it applies also to other nations. As long as a person has not accepted upon himself the seven Noahide commandments, he is considered a non-Jew who may not reside in our land; but if he accepted the seven Noahide commandments, his status is that of a ger toshav [see Avodah Zarah 64b]. The Rambam writes: “It is forbidden for us to leave among us a non-Jew who worships idolatry, even if he is only temporarily residing or passing from place to place for business; he may not pass through our land until he accepts upon himself the seven commandments commanded to the descendants of Noah, as it is stated: ‘They shall not dwell in your land’ — even for a short time. If he accepted the seven commandments, he is a ger toshav. A ger toshav is accepted only when the Jubilee is in force…” The Raavad objects that this applies only to the seven nations, and even according to the Rambam the verse speaks of dwelling, not merely passing through. Thus, according to the Raavad, the prohibition is only residence [perhaps even temporary residence], but not passing from place to place. The Kesef Mishneh explains that according to the Rambam, since the reason is “lest they cause you to sin against Me,” there is concern even with temporary residence or passage; therefore “dwelling” in the verse means even minimal presence, and from the seven nations it is learned to all nations.

At the beginning of that halachah, the Rambam writes that all this applies when the hand of Israel is strong over the nations; then all the above is forbidden. But when the hand of the nations is strong, or when Israel is exiled among the nations, these laws do not apply in the same manner.

Nevertheless, it seems that the Rambam means only that when there is danger in removing non-Jews because they are powerful and Israel is in exile, one is not obligated to endanger oneself. He does not mean that the prohibition of "לא ישבו בארצך" is completely uprooted in all situations. Therefore, even today, wherever we can prevent their arrival or encourage their departure, we should do so. Accordingly, there are cases in which one must be careful even now: for example, if a non-Jew wishes to leave the country, it is forbidden to persuade him to remain. This is common with foreign workers who wish to return to their homeland, while the Jew has become accustomed to relying on them and wants them to stay; according to the above, it is forbidden to persuade them to remain. Likewise, if someone from abroad wishes to come to Eretz Yisrael with his non-Jewish servant, there is concern that he violates this prohibition. And if some encourage immigration of non-Jews to the Land, perhaps they transgress this prohibition.

Taking a loan from a bank when some shareholders are non-Jews

Regarding the second prohibition, "לא תחנם", Tosafot in Avodah Zarah write that although the verse discusses the seven nations, it applies to the other nations as well, for there is no logical basis to distinguish between them.

Whether this prohibition applies only to idolaters is disputed by the Rishonim. The responsa of the Rashba and the Meiri indicate, regarding gratuitous gifts, that Muslims who do not worship idols are not included. However, the Tur, Beit Yosef, Sma, and Shach explain that it applies even to Muslims, and permission exists only for a ger toshav.

One must examine how one may take a bank loan under a heter iska, for example to purchase an apartment, since at times the borrower must transfer the iska to the bank, as explained by the Rishonim. It may be that the bank has non-Jewish shareholders, so that one is transferring a share to a non-Jew and violating "לא תחנם". It is known that some are lenient where the shareholders are few and cannot determine corporate policy, but this matter requires analysis here, especially since some are stringent regarding modern shares, whose reality has changed.

Even where no explicit transfer to the bank by kinyan sudar or the like is required, such as when the money passes directly from the bank to the apartment seller, since this is a heter iska and iska means a partnership between the bank and the buyer in the apartment, it emerges that the bank buys part of the apartment from the seller. Thus non-Jewish shareholders have a share, the seller violates "לא תחנם", and the buyer may violate "lifnei iver" by causing the seller to stumble. According to the Chochmat Shlomo cited below, the buyer himself may also violate "לא תחנם" by assisting the non-Jewish shareholders in acquiring a share.

The Chazon Ish (Sheviit 24) writes that "לא תחנם" applies to selling land to a non-Jew even if the non-Jew will not actually live there. He also writes that a temporary sale is forbidden, as do the Minchat Chinuch and Meshiv Davar. It remains to examine whether the prohibition of a temporary sale applies only where the Jew cannot repurchase whenever he wishes; if he can, perhaps all agree it is permitted. In the present case, since he can buy back the bank’s share at any time by repayment, perhaps it is not considered a temporary sale, and this requires further study.

The Chazon Ish further writes that even selling land to a non-Jew for the Jew’s own need and benefit is forbidden. The Kaftor VaFerach writes that when one is compelled by need of money, the Torah did not prohibit it; however, the Pe’at HaShulchan and letters of the Chazon Ish cited in Derech Emunah write that one should not be lenient except for saving life.

The Chazon Ish also writes that even if the non-Jew already owns land in Eretz Yisrael, it is forbidden to sell him additional land, since this adds to his foothold in Eretz Yisrael; one must not treat a Torah prohibition lightly. Therefore the fact that the bank already owns other real estate in Eretz Yisrael does not permit the present case.

The basis for permission here is that the heter iska states that if there is a concern of ribbit, the heter iska applies; but since with non-Jews there is no prohibition of ribbit, the conditions of the heter iska do not apply to them.

A loan from a non-Jew with collection from land

One must consider whether it is permitted to take a loan from a non-Jew when the borrower is unsure whether he will be able to repay it; if he cannot, the non-Jew will collect his land. Is there a prohibition of "לא תחנם"?

Similarly, consider a case of an observant Jew who wished to sell a property. Two buyers approached: one was a non-observant Jew who had no money and needed a loan to buy it as an investment; the second was a non-Jew willing to pay less than the seller asked. The non-Jew offered to lend the non-observant Jew money with interest to buy the land at the seller’s price, on condition that if he did not repay, the non-Jew would collect the land. Must the sale to the non-observant Jew be considered a violation of "לא תחנם", since the entire sale is structured so that the non-Jew can collect the land? Likewise, may a broker mediate such a transaction?

In Gittin (44a) we find that if a non-Jew forcibly seized a Jew’s house and the Jew cannot recover it in either Jewish or non-Jewish courts, he may take its value. This implies that if he can recover it through legal proceedings, he must do so, and may not simply take money, even though he did not sell the house to the non-Jew but the non-Jew seized it. This suggests that "לא תחנם" is not only a prohibition to sell, but includes concern to remove land from a non-Jew’s possession. Accordingly, when one takes a loan in a way that may lead to the non-Jew collecting Jewish land, or in the case above where it was agreed in advance that the non-Jew might collect the land, there is concern of "לא תחנם", because the prohibition includes the Jew’s duty to ensure that the land not come into a non-Jew’s hands.

In that case, when selling to a non-observant Jew, the seller violates "lifnei iver", because the buyer is suspect to sell to a non-Jew. In the letters of the Chazon Ish it is explained that even if it is doubtful whether he will sell to a Jew or non-Jew, since he is suspect in this matter, Avodah Zarah (15b) states that "lifnei iver" applies. Thus a broker may not introduce to a seller a suspect buyer who buys for business and may well sell to a non-Jew, especially in areas where non-Jews commonly buy apartments.

As to whether one must spend money to remove land from a non-Jew, we do not find an absolute obligation. Even the seller himself is not found to be obligated to redeem it; on the contrary, Gittin (44a) indicates that only one who sold his slave was fined to redeem him for ten times his value, whereas one who sold his house to a non-Jew was not fined.

Still, although strictly speaking one need not buy it from the non-Jew, there is value in doing so. In Gittin (47a) it says that one who sells his field to a non-Jew buys and brings bikkurim for the sake of tikkun ha-olam. Rashi explains that every year he must buy the first fruits from the non-Jew at a high price and bring them to Jerusalem, so that he will not become accustomed to selling land in Eretz Yisrael to an idolater, and if he sold it, he will trouble himself to pursue it and redeem it. Similarly, in Gittin (8b) and Orach Chaim (306), the rabbinic prohibition of asking a non-Jew to perform labor was permitted for the mitzvah of settling Eretz Yisrael; the Magen Avraham explains that the reason is "לא תחנם". Thus we see that there is significance in removing land from non-Jewish possession.

Gittin (44a) states that the money received for selling land to an idolater is prohibited. The Rishonim dispute the meaning: Rashi says it is because he violated "לא תחנם"; the Meiri explains it as a rabbinic penalty; the Rambam understands it as referring to one who sold his house for idolatry, even outside Eretz Yisrael.

A non-observant Jew asks a real-estate broker to find a non-Jewish buyer

One must discuss a real-estate broker approached by a non-observant Jew who owns an apartment in an area entirely populated by non-Jews, asking him to obtain a non-Jewish buyer, where it is clear that the apartment will be bought by a non-Jew through another broker or by the seller himself. There are grounds to say there is no "lifnei iver" or assisting prohibition: Avodah Zarah (6b) distinguishes between “two sides of a river,” where "lifnei iver" applies, and “one side,” where it does not. Tosafot in Shabbat write that even when "lifnei iver" does not apply, there is a rabbinic prohibition of assisting; but Tosafot in Avodah Zarah imply that even this does not apply. The Rema derives that the Tosafists dispute whether assisting applies at all in such a case. The Shach reconciles them: assisting applies to an observant Jew, but not to a mumar.

Several explanations are given why there is no assisting prohibition regarding a mumar. Avnei Nezer explains, based on Ritva, that assisting is rooted in mutual responsibility, while a mumar is not called “your brother.” According to Tosafot and Rosh in Shabbat, assisting is part of the duty to separate someone from sin; but this duty applies to “your fellow,” and a wicked person is not called so. The Dagul Mervavah explains that when one will deliberately violate the prohibition in any event, there is no assisting prohibition.

Accordingly, one might have permitted a broker to bring such a Jew a non-Jewish buyer, since it is “one side of the river” and there is neither "lifnei iver" nor assisting. However, the Magen Avraham and Mishnah Berurah rule that there is an assisting prohibition even with a mumar; therefore there is reason to forbid brokering a non-Jewish buyer in such a case.

Furthermore, the Darchei Teshuvah cites in the name of the Chochmat Shlomo that brokerage itself involves the prohibition of "לא תחנם", and even brokerage between a non-Jew and a non-Jew is prohibited.

All the above discussion concerns a neighborhood entirely populated by non-Jews. But if the area contains both Jews and non-Jews, it is certainly forbidden to broker an apartment for a non-Jewish buyer; the broker violates "lifnei iver" [besides "לא תחנם" according to Chochmat Shlomo].

As for a lawyer approached by a non-observant Jew and a non-Jew to draft a sale contract and arrange the transfer in the land registry, although regarding "lifnei iver" and assisting there are grounds for leniency as above, according to the Chochmat Shlomo this would involve the prohibition of "לא תחנם".