2.3. An Exposition of the Particular Laws Concerning the Jubilee Year. The Sale and Return of Land Holdings

The institution of the jubilee year receives its practical force from the theocratic principle on which it rests. The essence of this principle in the given case consists in the restriction of the right of property with respect to land as the exclusive property of its one fully authorized proprietor—Jehovah. As fully authorized proprietor he gives it over for possession to his people, but retains his rights over it—rights which, placing a necessary limit on the freedom of land management by secondary owners, so to speak, serve as a regulating force in the development of the social-economic relations of the people. This restriction is first expressed in the law on the sale of land. “The land shall not be sold in perpetuity, for the land is mine; you are strangers and sojourners with me” (Lev. 25:23). By this legal provision, which determines the inalienability of landed property, a certain share of material well-being—possible from the given land plot—is secured forever for every member of the theocratic state, and consequently the possibility of the emergence and development of that social evil is removed—which, appearing in the form of pauperism or proletarianism, has always been and continues to be the sore point of social organisms, convulsively shaking even their healthy parts. According to this legal provision, no one has the right to arbitrarily dispose of his landed property in such a way that this disposition would go contrary to the institutions of Jehovah that secure the public good. The owner is the fully authorized manager of his landed property only within the limits of the fifty-year period—from one jubilee year to the next. He may sell his plot, but no further than the jubilee year, at which the sold property was to revert without payment to the previous owner. But even within the bounds of this period, the sale of property, by the clear expression of the law (Lev. 25), is conditioned solely by poverty, by extreme, oppressive need; and any sale for other motives—such as profiteering speculation—is either not contemplated by the law or, as the rabbis think, is entirely forbidden by it. Furthermore, sale even in case of need was limited to only a part of the holding (“if your brother becomes poor and sells part of his property,” as the law expresses it). Consequently, by the law’s supposition, the landowner, even after selling part of his holding under compulsion to meet oppressive need, will still have his land from which to subsist. Of course, the law allows for the possibility of selling all the land as well, after which follows complete poverty and the prospect of slavery; but the very bleakness of the prospect after such a sale naturally limited this possibility to the realm of rare, exceptional cases.

A sale defined by law for a certain, fixed period, after which the sold property reverts to the previous owner, naturally loses the essential character of a sale in the proper sense—as the transfer to another of the entire sum of utility that can be extracted from the sold item. In the given case, the sale appears as the transfer to another not of the entire sum of utility of the sold item, but only of that part of it which can be extracted during the given time. Hence the value of the sold item also varies according to the amount of time during which use of the item is anticipated. In relation to land, the value of it at temporary sale equals the number of years during which the buyer expects to gather a harvest from it. And since this number, within the bounds of the fifty-year period, is determined by the number of years remaining until the jubilee, the value of the land sold is also determined by the number of harvests that can be gathered before the jubilee. The law strictly defines this relationship of the value of land to the number of years of use: “According to the number of years after the jubilee, you shall buy from your neighbor, and according to the number of years for crops, he shall sell to you. If the years are many, you shall increase the price, and if the years are few, you shall reduce the price, for it is the number of the crops that he is selling to you” (Lev. 25:15–16). Such a sale takes on the character of a lease. Much controversy has arisen over the advantages of such a legal provision. In the opinion of some investigators, it—by converting the sale into a simple lease and reducing the value of land to the level of rent, thus diminishing it in proportion to the limited number of years of use—supposedly offered no essential benefit to either seller or buyer. But this opinion does not fully grasp or adequately appreciate the motives of the legislation. Of course, says Winer, a voluntary seller who sells his plot with a view to speculation and profit would gain nothing under such an arrangement, since he could only sell it until the jubilee and consequently could receive for it no more than rental payment until that time. But, in the first place, the law does not anticipate such a speculative seller: the only seller of his plot that the law contemplates is a seller out of necessity—a person compelled to sell his holding by some great, oppressive misfortune, personal or familial, that has plunged him into severe distress, the only way out of which remaining was the sale of the land. It is precisely for such unfortunate people that the legislation is designed. Although they too received a reduced price for the land, nonetheless the unimpeded return of the holding afforded them real benefit, since they received their plot without being burdened by any debt obligations—obligations that would have been inevitable upon the return of the plot in the case of its outright sale, and the heavier the more pressing was the need that had compelled them to sell or mortgage their plot. Under the given arrangement, however, the owner freely returned, without any redemption payment, to the condition he had been in before the misfortune that had forced him to sell. Nor is it correct to hold the view that those who had sold their plot within the fifty-year period—during the time of their non-ownership, being in the position of lessors, so to speak—received at the jubilee year only what they already essentially owned. This view fails to take into account the fact that every landowner who personally cultivated his fields would extract from them incomparably more benefit than a temporary holder could pay him—and consequently the former at the jubilee year again entered into full enjoyment of his property. On the other hand, temporary sale and the return of the land conditioned by it is a sanctioned benefit in the respect that the owner, compelled by oppressive necessity to sell his plot, would of course have received less than its full value; but even this net capital which he might have obtained for the sold land could not, in a state where money could not be lent at interest, serve as a permanent source of income, as the land plot could always serve—for capital, yielding no income, would soon be consumed (especially if the difficult circumstances continued). In inalienable real property, however, the capital remained untouched, serving as a permanent source of income—whether the owner personally drew this income from the land, or was compelled to accept compensation for it by ceding the enjoyment of the income to another. In this legislation is also contained a guarantee against the personal arbitrariness of some toward others, who could suffer the most from such arbitrariness. One who is entirely free to dispose of his holding—so that he can sell it permanently—undoubtedly gains greater immediate benefit at any given moment than one who can only lease harvests until the jubilee year. But the lawgiver in this case acts as guardian of the children and descendants whom a thoughtless father, carried away by temporary advantage, by selling the land permanently could plunge into the disaster of eternal poverty. Moreover, in the opinion of Saalschütz, the legal provision under consideration has significance also in relation to raising the general value of fields, since prices for real property are constantly determined by their nearest utility and above all by that which they can render during the buyer’s lifetime—rather than, for example, by use reckoned over a hundred or even longer years—and consequently the total price upon permanent sale is constantly less than the total of a series of jubilee-period leases. True, under temporary lease there may arise the disadvantage that the temporary holder will try to extract as much benefit as possible from the land while spending as little as possible on its cultivation—that is, the disadvantage of ruthless, extreme exploitation of the land, inevitably leading to its exhaustion and barrenness, as was the case for example in Samara Province, where tenant exploitation brought the land to extreme exhaustion, followed in 1873 by the well-known catastrophe—famine. But even this inconvenience could not cause in ancient Palestine as much harm as it might cause in other countries and under other conditions. First of all, the temporary holder only rarely had a direct interest in exploiting the land to exhaustion, and primarily before the jubilee year, when he was required to return the land to the previous owner. But even here his greedy exploitation could be counteracted by the deeply rooted popular view of the land as a kind of animated, sentient being requiring rest after labor—and consequently enrichment after exhaustion. But even if this moral motive proved too weak to moderate the predatory exploitation of the temporary holder, even then the harm of it would be neutralized by the institution of the sabbatical year already examined, whose agronomic significance consisted precisely in restoring the depleted vegetative force of the land. With the extraordinary fertility of Palestinian soil such legalized rest was sufficient to erase the traces of predatory exploitation. Of even greater significance in this respect was the two-year rest (during the sabbatical and jubilee years) which occurred precisely at the time when the depleted land was returned to the previous owner: after such prolonged rest the land returned to its previous owner with all the richness of its vegetative forces and fertility.

But Mosaic legislation also conditions the temporary sale with such provisions by which only in exceptional cases could land remain in the hands of the buyer until the jubilee year. Here too, always faithful to its fundamental principle, it comes to the aid of the unfortunate person deprived by fate, who has been compelled by hardship to sell his plot, protecting him from exploitation by the more prosperous. This aid is expressed in the legislation in the broad right of redemption of the sold holding. “Throughout all your land holdings, you shall allow a redemption of the land,” the law declares (Lev. 25:24). The obligation of redemption is laid upon a close kinsman (the go’el). “If your brother becomes poor and sells part of his property, then his nearest redeemer shall come and redeem what his brother has sold” (Lev. 25). However, from the text it cannot be determined what kind of obligation this is: whether one merely arising from the feeling of kinship, or a legal obligation. In the opinion of Saalschütz, the law simply grants the kinsman the right to redeem the land in order to convert it to his own use. But such an opinion is hardly well-founded, though it may appear more understandable for our self-interested times. In granting the right of redemption, the law has in view not the interests of the entire clan, among which there may be wealthy members who have bought up the plots of poor people, but exclusively the interests of the sufferer himself who was compelled to sell his plot. This thought of the law comes out clearly in granting the right of redemption to the seller himself as soon as he has the means for it. “And if he has no one to redeem it for him, then if he grows rich enough, he shall calculate the years since he sold it and pay back the balance to the man to whom he sold it, and then return to his property” (Lev. 25:26–27). Most probably the thought of the law here is that the prosperous kinsman is obliged—if not legally (in which, however, there is nothing impossible), then out of kinship feeling—to redeem the plot sold by his brother and return it to him. This interpretation can rest with full justification on the force of kinship bonds that is customary among Eastern peoples, where it often serves as a solid guarantee of mutual assistance in such relations as can only be guaranteed in our time by the compulsory force of legislation. In understanding this obligation of the go’el, significance attaches also to the fact that the lowest legally defined unit that received land was, as was shown above, the house or family in the broad sense, as a subdivision of the clan; the members of this family were to guard their common estate; the sale of one member’s plot to a member of another family diminished the land allotment of the entire family to which the poor man belonged. Hence the redemption of the sold land, beyond the motives of kinship feeling, was prompted also by the common interest of the entire family. The specific provision of the law concerning redemption—“to calculate the years since his sale and pay back the balance to the man to whom the redeemed property was sold”—constitutes a simple calculation of justice, by which one must return to the buyer his payment only for those years that remained for him to use the field until the jubilee year, and retain payment for those years in which he had already used it since the time of purchase. “But if he does not have sufficient means to recover it, then what he sold shall remain in the hand of the buyer until the year of jubilee; in the jubilee it shall be released, and he shall return to his property”—with this the law concludes its provisions on the right of redemption of sold land (Lev. 25:28).

On a par with a field with respect to the right of redemption and return in the jubilee year, the law places rural houses lacking strong artificial defenses. “Houses in villages not enclosed by walls shall be classified with the fields of the land. They may be redeemed, and they shall be released in the jubilee” (Lev. 25:31). A different matter are “houses in a city that has a wall.” With respect to these, the right of redemption is limited, and the fundamental law of the jubilee year—on the inalienability of real property—does not extend to them at all. “If a man sells a dwelling house in a walled city, he may redeem it within a year of its sale; for a full year he shall have the right of redemption. If it is not redeemed within a full year, then the house in the walled city shall belong in perpetuity to the buyer, throughout his generations; it shall not be released in the jubilee” (Lev. 25:29–30). The difference in the law concerning the right of redemption and inalienability with respect to two types of real property—land and houses (in walled cities)—is explained by the different degree of the owner’s right to one or the other type of holding. Whereas in relation to land—which for its owner is only a temporary gift from Jehovah, its true proprietor—this law is expressed in the restriction of the owner’s arbitrary disposal of it, in relation to a house (in a walled city)—as the full product of the owner himself and consequently his full property by right of producer—the law less, or even not at all, restricts freedom of disposal, and therefore, granting the owner the right to outright sale, appoints only a one-year period for redemption, after the expiration of which the sold house becomes the full property of the buyer. As for the distinction established by the law specifically between houses in villages and in cities—with the former fully falling under the category of laws on land and the latter receiving special laws—this is explained by the fact that houses in villages stand in closer connection with fields than houses in cities.