The Redeeming Factor
“It is like a type of ‘ribit’ (prohibited interest on a loan), and it is not ‘ribit’.”
So we see that unlike other categories of homes and fields that a person sells which return to him in the Yovel year even if he fails to redeem the property, a house in a walled city does not unless he redeems it within a year from the time it was sold. If he does not redeem it by then, it is too late for him to redeem it and it will remain the property of the buyer even after the Yovel year.
This statement is taught regarding a halacha dealing with redeeming (i.e. ‘buying back’) a house that was sold in a walled city in Eretz Yisrael. This type of house is deserving of its own specific category of Jewish Law, one that is known as “batei arei chomah” — literally, “houses of walled cities.” There is a specific Torah mitzvah regulating who, how and when a person may redeem this type of house after it is sold, as stated in Sefer Vayikra (25:29, 30): “And when a person sells a house in a walled city, its redemption may take place until the completion of the year from its sale. Its period of redemption shall be a full year. But if it is not redeemed by the end of a complete year, then that house which is in the city that has a wall will permanently remain the property of the one who purchased it throughout his generations. It will not leave his possession in the Yovel year.”
The Torah commentaries and halachic authorities discuss the “mechanics” of how this unique sale of a house in a walled city takes place. There is an owner who sells it and then he has the right to force the buyer to return it to him if the seller returns the buyer’s money within the year. But should we view the redemption process — when the original seller gives back the full price to the buyer — as a “second sale”? Is there actually a first sale from the original owner to the buyer, followed by a second sale in the reverse direction from the buyer back to the original owner?
This would seem to be the most obvious way to view the “redemption” of the house. However, this clearly seems to not be the case. The mishna states that when the original owner redeems the house during the year: “It is like a type of ribit, and it is not ribit.” If it was a straightforward second sale, from buyer to original owner, why would the mishna call
it “a type a ribit”? Ribit only comes into play when there is a loan, or holding onto another’s money in a manner that has the appearance of a loan! Why in the world would there be any mention of ribit if there was merely a normal sale — from owner to buyer — followed by the buyer’s use of the house until he sold it back to the original owner?
One approach is that the first sale from owner to buyer is not viewed as a traditional sale. Rather, we should understand that there is an unspoken, conditional, retroactive aspect to this sale. It is as if the seller says to the buyer, “I sell you my house on condition that I don’t return your money within a year.” Therefore, if the seller fails to return the money, at the end of the year we can determine that we see now that the house belonged to the buyer from the year’s beginning. But if the seller returns the money, the implied condition for the sale is not fulfilled, and there is no sale. In this scenario the buyer’s money returns to him, and, in addition, he received the benefit of living in the seller’s house until the money was paid — a benefit that could be viewed as a reward for the buyer’s money being with the seller during that period of time, and therefore a type of ribit. (And it is “not ribit” since the Torah explicitly designated this process for redemption of the house. See Netivot Hamishpat andKetzot Hachoshen inChoshen Mishpat 55:1 for a detailed treatment regarding the nature of the sale of the house.)
In my humble opinion this type of unspoken, conditional, retroactive sale is also found in a sugya that is learned in virtually every Yeshiva in the world. The gemara at the beginning of the third perek of Bava Metzia explains the teaching in the mishna that if a shomer (watchman) does not return the cow he was given to watch, he can pay its value to the owner and then receive the penalty payments that a thief would normally pay to the owner. Why? Because the shomer acquires the cow before the theft, retroactively, if he pays the principle to the owner instead of taking an oath to be exempt from payment. Rava explains the methodology: the owner transfers ownership of the cow to the shomer via an unspoken, conditional, retroactive transaction. The owner allows the shomer to potentially collect certain benefits if the shomer “makes the owner happy” by guaranteeing him reimbursement for the cow’s value.
- Erchin 31a