The View of Tosafot
As discussed last week, the Mishnh (Ketubot 13:11) teaches that one may compel his or her spouse to ascend to the Land of Israel, but no one may compel a spouse to leave. The Talmud explains that refusal to comply is grounds for divorce and, in such a case, the compensation stipulated in the ketubah is forfeited by the offending party (Ketubot 110b). The halacha sides with the partner who wants to move to Israel, or remain in Israel, because of the mitzvah of settling in the Land of Israel.
Tosafot, however, suggests this ruling no longer applies today, considering the danger of travel to Israel (ad Loc., s.v. hu omer). Additionally, Rav Chaim Kohen, one of the Ba’alei HaTosafot, is quoted as saying that nowadays there is no longer a mitzvah to live in the Land of Israel given the difficulty in properly observing the agricultural mitzvot that apply.
Many authorities take issue with the position of Tosafot: Rav Yosef di Trani dismisses the citation of Rav Chaim Kohen as the addition of an errant student, which is “completely unreliable” (Teshuvot Maharit, Yoreh De’ah, no. 28. See also Chidushei Marahit to Ketubot 110b). Pitchei Teshuva (Even HaEzer 75:6) explains simply that Tosafot reflects a minority opinion, which was never accepted by later authorities (See also Sh’nei Luchot HaBrit, Sha’ar HaOtiot, p. 76a; Mateh Yosef 1:9; Teshuvot Maharit, Yoreh De’ah, no. 28; Toldot Ya’akov, Choshen Mishpat no. 8).
As far as the concern for travel, one may ask if the roads were any less dangerous during the Talmudic period! In a lengthy teshuva on the mitzvah of settling in the Land of Israel, Rav Avraham Borenstein of Sochatchov addresses the issues raised by Tosafot and, writing in the nineteenth century, concludes that these concerns no longer remain (Avnei Nezer, Yoreh De’ah, no. 454. sec. 4, 8). Many other contemporary authorities also found the concerns of Tosafot to be no longer relevant (See Bi’ur HaGra to Yoreh De’ah 267:161; Chatam Sofer, Yoreh De’ah, no. 233; Yeshu’ot Malko, Yoreh De’ah, no. 66). How much more so today when travel to Israel is safe and easy. With regards to the laws related to the sanctity of the Land, Shemittah, terumot, ma’asrot, etc., oversight by the Chief Rabbinate and kashrut agencies ensures that these laws are performed in strict accordance with halacha.
Rav Shaul Yisraeli explains that Tosafot’s objection, even if valid, is limited to the rabbinic enactment of compelling a spouse to ascend to the Land of Israel. Accordingly, Tosafot does not object to the mitzvah of dwelling in the Land of Israel today, still considering it to be a mitzvah (Eretz Chemda, pp. 20-24).
The Ramban’s View
In his commentary to the Sefer HaMitzvot, the Ramban criticizes the Rambam for not including this mitzvah among the 613 commandments. The Ramban writes that dwelling in the Land of Israel “is a positive commandment for all generations, incumbent upon each and every individual even during the Exile, as is known from the Talmud in many places” (Addenda to Sefer HaMitzvot, positive commandment no. 4).
The Ramban also cites a famous passage in the Midrash, which conveys the significance of this mitzvah:
Rav Yehudah b. Beteira, Rav Matiah b. Heresh, Rav Chanina the nephew of Rav Yehoshua, and Rav Yonatan were leaving the Land. They reached Paltum and remembered the Land of Israel. They lifted their eyes and their tears began to flow. They tore their garments and read this verse: ‘…You shall posses it and you shall settle in it. And you shall observe all of the decrees and the statutes…’ They said, ‘Dwelling in the Land of Israel is equal to all of the mitzvot in the Torah.’
Rav Elazar b. Shamua and Rav Yohanan HaSandlar were traveling to Netzivim to study Torah from Rav Yehudah b. Beteirah. They reached Tzidon and remembered the Land of Israel. They lifted their eyes and their tears began to flow. They tore their garments and read this verse: ‘…You shall posses it and you shall settle in it. And you shall observe all of the decrees and the statutes…’ They said, ‘Dwelling in the Land of Israel is equal to all of the mitzvot in the Torah.’ They then returned to the Land of Israel” (Sifrei, Re’eh 80).
The source for the mitzvah to settle in the Land of Israel, according to Ramban, is the verse, “You shall posses the Land and you shall settle in it, for I have given you the Land to posses it” (Bamidbar 33:53). Another source for the mitzvah, he writes, is Devarim 1:8, which states, “…Come and possess the Land that Hashem swore to your forefathers, to Avraham, Yitzchak, and Ya’akov, to give them and their children after them.” In his comments on the verse, the Ramban explains that this is not merely a promise from Hashem, but a commandment.
Many later authorities have adopted the Ramban’s view (See Pitchei Teshuva, Even HaEzer 75:6. See also S’dei Chemed, Ma’arkhet Eretz Yisrael 1; Rav Yisachar Shlomo Teichtal, Eim HaBanim Semeicha, p. 278; Rav Ovadiah Yosef, Yehaveh Da’at, 5:57; Rav Tzvi Glatt hy”d, Me’afar Kumi, pp. 71-75). Some even suggest that every moment one is living in the Land of Israel, he fulfills this mitzvah (See Rav Menashe Klein, Mishneh Halachot 2:56; Rav Moshe Shternbuch, Mo’adim U’Zemanim, 5:346).
Rambam’s View
Much ink has been spilled concerning the view of the Rambam, one of the greatest Rishonim. Many grapple with why the Rambam himself does not include the mitzvah to settle in the Land of Israel in his count of the 613 mitzvot in the Sefer HaMitzvot.
Rav Chaim Benvenisti writes that according to Rambam, the Torah command to settle the Land applied only during the initial conquest of the Land of Israel in the days of Yehoshua. Today, he explains, the mitzvah to settle the Land is only Rabbinic in nature (Knesset HaGedolah, Yoreh De’ah 239:38). And Rambam, per his introduction to his Sefer HaMitzvot, enumerates only Biblical mitzvot.
Another famous explanation as to why this mitzvah is seemingly missing from Rambam’s Sefer HaMitzvot, is that of Rav Yitzchak de Leon. He writes:
“It appears to me that [Rambam] did not count the mitzvah of taking possession of the Land and settling it because it applied only during the days of Moshe, Yehoshua and David and at all times when they [the Jews] are not exiled from their land. But after they have been exiled from their soil, this mitzvah does not apply until the arrival of the Messiah. On the contrary, we were commanded with what is said at the end of Ketubot (111a), not to rebel against the nations and take the Land by force. They proved this from the verse, ‘I have adjured you, O maidens of Jerusalem…’ and expounded that ‘they not ascend like a wall’” (Megillat Esther to Nachmanides’ Addenda to Sefer HaMitzvot, positive commandment no. 4).
This explanation is difficult to accept since the Rambam includes in his work many mitzvot which ‘do not apply nowadays,’ like the sacrifices in the Holy Temple, for example. It also contradicts the view of many authorities who rule in accord with a simple reading of the text, that the mitzvah of settling in the Land of Israel applies at all times. The opinion of Rav Yitzchak de Leon is based on the “Three Oaths,” a passage from Tractate Ketubot, which will be discussed in this column next week.
Rav Avraham Borenstein of Sochatchov explains that Rambam does indeed consider settling in the Land to be a Biblical mitzvah that applies at all times. However, like in other instances, the Rambam includes it within another, more general mitzvah (Avnei Nezer, Yoreh De’ah 454:5-6.) Here, he explains, the Rambam includes the mitzvah of settling the Land under the commandment to conquer the Land and rid her of her inhabitants (Devarim 7:2, 20:17). A similar approach has been taken by others, as well: Rav Shaul Yisraeli writes that Rambam includes the mitzvah in the mitzvah of Birkat HaMazon. Rav Hershel Schachter suggests that Rambam includes it in the commandment to appoint a king.
In the cases we discussed at length last week, Rambam rules that a spouse can be compelled to ascend to Israel (Hichot Ishut 13:19-20), and one may ask a gentile to write a contract on Shabbat in order to purchase Land in Israel, “because of [the mitzvah to] settle the Land of Israel, they [the Sages] did not prohibit this” (Hilchot Shabbat 6:11). He also rules that a servant can compel his master to ascend. This serves to prove that Rambam too believes the mitzvah of dwelling in the Land is a Biblical commandment, which applies at all times (See Rav Shlomo Goren, Mishnat HaMedinah, p. 21: Rav Avraham Yeshayah Karelitz, Kovetz Igrot 1:175; Tzitz Eliezer 7:48:12).
For anyone who still questions his position on the Land of Israel, the Rambam’s own words provide clarity. Based on statements in the Talmud, he writes:
It is forbidden for one to leave the Land of Israel for the Diaspora at all times, except: to study Torah, to marry, or to save [one’s property] from the gentiles, and then he must return to the Land. Similarly, [one may leave] to do business. However, it is prohibited to settle permanently in the Diaspora unless the famine there [in Israel] is so severe that a dinar’s worth of wheat is sold at two dinarim.
When do these conditions apply? When one possesses financial resources and produce is expensive. However, if produce is inexpensive, but a person cannot find financial resources or employment and has no money available, he may leave and go to any place where he can find relief. Although it is permitted to leave [under these circumstances], it is not pious behavior. Behold, Machlon and Kilyon were two of the great men of the generation and they left only out of great distress. Nevertheless, G-d found them worthy of death.
Great Sages would kiss the borders of the Land of Israel, kiss her stones, and roll around in her dust. Similarly, it is said: “For your servants have cherished her stones, and favored her dust.”
The Sages said, “Whoever dwells in Eretz Yisrael will have his sins forgiven,” as it is stated: “The inhabitant shall not say I am sick, the people who dwell there shall be forgiven of sin.” Even one who walks four cubits there will merit the World to Come. Similarly, one who is buried there receives atonement as if the place in which he is buried is an altar of atonement. As it is stated: “His land will atone for His people.” And as [an expression of] punishment it is said, “You will die in an impure land.” There is no comparison between the merit of a person who lives there and one whose body is brought there after his death. Nevertheless, great Sages would bring their dead there. Take for example our patriarch, Jacob, and Joseph, the righteous.
A person should always dwell in the Land of Israel even in a city whose population is primarily gentile, rather than dwell in the Diaspora, even in a city whose population is primarily Jewish. For whoever leaves to the Diaspora is considered as if he worships idols…. (Hilchot Melachim 5:9-12).
These statements by Rambam should not be understood as mere hyperbole or even hashkafa, as they make up a section of his code of Jewish law, the Mishneh Torah.
Some suggest that the reason the mitzvah of settling in the Land of Israel is not stated explicitly by the Rambam is due to just how central or fundamental the mitzvah is. It is a mitzvah, which includes many other mitzvot. Per the introduction to his Sefer HaMitzvot, the Rambam does not include mitzvot “which encompass the entire Torah or [include] many mitzvot.” This mitzvah need not be stated explicitly, as all of the other mitzvot in the Torah are predicated upon it (See Tzitz Eliezer 7:48:12; Rav Shlomo Goren, Torat HaMoadim, pp. 40-42).
Rabbi Nadel will be in the U.S. before Yom Ha’atzmaut and is available for speaking engagements. To invite him to your community, email [email protected].
