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Israeli Court Says Religious Ritual Is Not True Sale of Land for Civil Purposes

By Howard M. Friedman

In Israel last week, the Petach Tikva District Court handed down an interesting decision intertwining civil and religious property law. The case grew out of a lease of land last year, which was the Sabbatical year in Israel. According to Jewish religious law, observant Jews are to allow their land to lie fallow during that year. Produce grown on Jewish-owned land in Israel during the year is not considered kosher. Some rabbis however have accepted a loophole, allowing produce to be grown on the land if the land is technically "sold" to a non-Jew for the year. This practice, known as "heter mechirah", has become controversial among competing schools of Orthodox rabbis, but Israel's High Court in a 2007 decision effectively required the practice to be recognized. (See prior posting.)

Dei'ah veDibur (Feb. 19) reports that in the Petach Tikva case, the Israel Land Authority sued lessees for illegal use of land they had rented from the Authority. The lessees countered that the Authority has no claim against them because the Authority had "sold" the land to someone else under the practice of "heter mechirah". The civil court ruled, however, that the sale was merely a legal fiction, so the Land Authority still owned the property for purposes of enforcing its lease provisions. Rabbis who oppose the use of "heter mechirah" are pointing to the ruling as further support for their position. If the "sale" is not valid, then, they say, the land is still Jewish-owned and its cultivation is prohibited as a matter of religious law. [Thanks to Religion & State in Israel for the lead.]

Full post as published by Religion Clause on February 25, 2009 (boomark / email).