Q&A: Deriving the Law of Ownerlessness from the Sabbatical Year
Deriving the Law of Ownerlessness from the Sabbatical Year
Question
Hello and blessings!
I had an argument with several people, and I’d be glad to hear your opinion. In the Jerusalem Talmud, Pe’ah (chapter 6, halakhah 1), a dispute is brought between Rabbi Yohanan and Resh Lakish regarding the source of ownerlessness—whether from the Sabbatical year or from pe’ah. The commentators on the Jerusalem Talmud disagree whether the Talmud is in doubt regarding the source of acquisition of ownerless property, or whether it is discussing the exemption of ownerless property from terumot and ma’asrot, and I won’t go into that here. The discussion revolves around the side according to which the Jerusalem Talmud is discussing the source for the concept of ownerlessness:
In my humble opinion, it makes sense that if the Sabbatical year is “the King’s confiscation” and the Holy One, blessed be He, is the one acting [the Holy One declares it ownerless], then one cannot derive from it the concept of ownerlessness, which is an act performed by man. Even though the mechanism is identical [the object becomes ownerless], the very fact that the Holy One, blessed be He, is capable of doing something does not constitute proof that man too has the ability to do it. If so, this is difficult for the Beit Yosef based on the above Jerusalem Talmud. Precisely if the Sabbatical year were a human act, it would be easier to derive from it the concept of ownerlessness, which a person effects through his actions. How can one take the Holy One, blessed be He, as a model at all? He can do things that man simply cannot do.
Let me expand. In my humble opinion, behind almost all derashot, even those based on extra wording and the like, there stands a logical foundation leading to the conclusion that this is the proper derivation to be learned. This is especially common in the tannaitic midrashim, where different sages derive different teachings from the same extra wording. From this one may infer that each sage had several possibilities before him, and he chose specifically the one he stated because, in his opinion, according to reason, that is what should be said. That is, behind every derivation stands solid logic, and if I am not mistaken, you too have elaborated on this in several places.
If so, so long as there is no logical basis for the comparison between ownerlessness and the Sabbatical year, there is no room for this derivation. Presumably the Jerusalem Talmud had other alternatives before it. It could have derived this from other relinquishments, where there is room to say that the actor is the Holy One, blessed be He, or it could have taken the derivation in an entirely different direction—not necessarily deriving another kind of relinquishment, but another type of derivation altogether. So why take the Holy One, blessed be He, as a model? He can do things that man simply cannot do.
Therefore, from the very fact that Resh Lakish did not see this derivation as problematic, we must conclude that, similarly to the Sabbatical year, in ownerlessness too it is the Holy One, blessed be He, who applies the legal effect, and man through his actions merely prepares the ground. And indeed, many later authorities say that ownerlessness is a legal effect by force of the Torah.
Both in the Sabbatical year and in ownerlessness, the Torah established that in situation x God will apply a legal effect. The Holy One, blessed be He, does not need man’s consent, but rather established that in this situation He chooses to apply a legal effect, just as He chose to apply one at the beginning of the Sabbatical year. That is, the need is not for man’s approval but for a certain situation that the Holy One, blessed be He, defined in advance—and “in this case” with ownerlessness, that situation depends on man, but this is external and not essential.
Many disagreed with me, and I’d be glad to hear your opinion
Answer
In my opinion, it’s really not necessary. Even according to the Mabit, one could explain that the Jerusalem Talmud compares God’s declaring ownerlessness with ownerlessness done by us. It’s not a question of whether He can declare something ownerless. He can also make the whole world disappear, and the mouth that prohibited is the mouth that permitted. The question is whether He recognizes the mechanism of ownerlessness, and if so, then there is no reason we should not be able to do this.
Let me explain further. There is no physical obstacle here that only an omnipotent being can overcome. Human beings too can move their lips and say, “This field is ownerless.” The only question is whether that is effective or not. But regarding that, there is no reason to distinguish between the Holy One, blessed be He, and human beings. If the Holy One, blessed be He, does it, then apparently this is a defined mechanism, and from here it follows that ownerlessness is something effective.
Moreover, one cannot raise a difficulty against the Mabit on the basis of certain opinions that are themselves disputed in interpreting the Jerusalem Talmud.
Discussion on Answer
The distinction is exactly what you described. If you assume that in the end something is done by the Holy One, blessed be He, then of course the difference is only in the question of what triggers the action of the Holy One, blessed be He.
(By the way, you are assuming legal realism here—that is, that ownerlessness is not merely a legal status, but that something also happens in reality.)
A. Meaning, to the questioner’s difficulty, and according to his assumption that one cannot derive from the acts of the Holy One, blessed be He, to the acts of man, one could answer that the Mabit would say that ordinary monetary ownerlessness is also really “the King’s confiscation,” and all man does is provide the trigger? Adding invisible components is free.
B. In my wording I spoke as though I assume legal realism, but the content is seemingly the same even with statuses. Someone or something is the Humean cause for the status being established from a certain time onward. Isn’t that so?
A. Yes—assuming that God needs to do anything here at all.
B. No. The cause is the speech and the will. The result can be only a status, which is a theoretical matter and not any actual reality.
Regarding what “From the Cracks” said: that itself is what I said we would have to say according to the Mabit, and that is what I meant by a legal effect arising from the act and not from the person.
Regarding what Michael Abraham said, I’d like to ask a question. Of course I am aware of the possibility you raised, according to which the Holy One, blessed be He, recognizes the existence of this mechanism, but that is precisely the point of doubt in my humble opinion. One of the difficulties with ownerlessness is that it involves no act of acquisition, and I wanted to argue that the very fact that the Holy One, blessed be He, does not require an act of acquisition means that we cannot know with certainty whether that is because He recognizes the mechanism, or because He is omnipotent. Since the matter remains doubtful, there is no way to derive from the Holy One, blessed be He—unless we claim that even ordinary monetary ownerlessness is “the King’s confiscation”
[You’re right, I didn’t notice. Maybe you could point to a practical difference between whether in ownerlessness the person applies the legal effect, or whether in situations where the person tries to apply the legal effect, the Holy One, blessed be He, hastens and applies it Himself? (Seemingly one could also say that it is not the Holy One, blessed be He, who applies the legal effect, but rather that the Holy One, blessed be He, strikes with a big spiritual hammer, and that strike itself is what applies the legal effect.)]
If I may ask: what exactly is the distinction between a legal effect from man and a legal effect from God? It is certainly possible that even in ordinary monetary ownerlessness the mechanism is that when a person declares something ownerless, then the King applies the legal effect of ownerlessness. That is, from man’s side, the declaration of ownerlessness is the condition (the state of affairs) and not the cause, and what really brings about the legal effect is the will of the Holy One, blessed be He. Just as in the Sabbatical year the Holy One, blessed be He, performs “the King’s confiscation” (according to the Mabit), so too the moment a person declares ownerlessness, the Holy One, blessed be He, performs confiscation from His side. [And in cases where it is said regarding property, “the Merciful One declared it ownerless,” such as an object lost from everyone or similar cases, the meaning is that the process did not begin by human hands.]