The Blogs: Insurrection, Occupations, and Preoccupations Bava Basra 27-30

Insurrection

Our Gemara on Amud Beis discusses the famous lomdishe concept of Bereira. Bereira is the idea of retroactive designation. For example, say you have a barrel of untithed wine, and you designate the last ounces to be Terumah, without actually separating them. The wine is now a combined mix of sacred Terumah and Chulin, but if one allows for Bereira, then the initial act of declaring the tithe falls on whatever ounces of wine are left at the end of the barrel.

Depending on various parameters, Bereira may be valid or not, and the Halacha is that it is generally valid in regard to rabbinic prohibitions and procedures but not Biblical. Also, the Gemara (Beitzah 37b) argues that even according to the opinion that allows for Bereira on a Biblical procedure or prohibition, it cannot work in regard to an animal owned in partnership because every limb of the animal derives life and sustenance from every other limb, and so even retroactively there is no divisible designation. For example, if two partners set a different Eiruv techum boundary, their utensils and objects follow their own personal Eiruv techum boundary. Therefore, if a barrel of wine and an animal are both owned in partnership, the legal magic of Bereira could allow each partner when using the wine to have it follow his personal Eiruv Techum boundary, as if when they originally entered the partnership each one agreed that they would have ownership enacted retroactively on the portion of wine in the barrel that they are using. However, even if we would allow Bereira by objects, it will not work by an animal because it cannot be divided up, as each limb derives life sustenance from the other.

Sefer Daf al Daf quotes the Yalkut Ani (Korach) who uses these legal distinctions of Bereira to add depth to an angry prayer given by Moshe during the Korach rebellion (Bamidbar 16:15):

“Hashem, do not turn toward or accept their mincha offering.”

It is a matter of debate amongst the commentaries (see Rashi and Ramban) as to whose offerings Moshe was referring to, whether it was Dasan and Aviram or Korach. In addition, the word mincha literally means meal offering but can also be used for other sacrifices. So, what sacrifice is Moshe referring to? From the context of the story, it would seem that he is referring to the incense that will be offered by the 250 men of the Korach contingent, and that by God not bringing fire onto their incense, it is an indication of Moshe and Aharon’s validity. Yet, this is problematic because the word used is Mincha, not ketores. The Midrash (see Rashi) holds that Moshe was insistent that they should have no share in the communal sacrifices.

According to this latter peshat, Yalkut Ani raises a question. The communal sacrifices are brought from communal funds, and so intermingled in the sacrifices were portions owned by this contingent. If a portion of the sacrifice is invalidated, then the entire sacrifice is invalidated. So how could Moshe make this request of Hashem? Yalkut Ani answers that since Bereira operates on a retroactive designation, even according to the opinions that Bereira is not valid, that is only for mortals. Since God knows the future, he knows which item will ultimately be designated, so Moshe’s request was valid and Bereira could work by the sacrifices and filter out the portion owned by this sinful contingent. Even so, in regard to an animal offering, Godly Bereira is not valid because even with foresight of a retroactive designation, all parts of the animal are symbiotically joined, and are not separated. This now explains why Moshe used the word Mincha. He meant the word literally as a Meal-Offering. The discrete grain particles in a Meal Offering can be retroactively divided, unlike the body parts of the animal. Therefore Moshe was only referring to the public Meal Offerings of the Korach Contingent.

Zooming out, we should ask why would Moshe ask Hashem not to accept their offerings? Moshe who compassionately prays to Hashem to forgive the Jewish people all of the sudden prays for the opposite? Also, this hardly seems respectful to interfere with God’s relationship with another of His children. God decides whose prayers to accept, (see Shemos 32:19: “ I will be gracious to whom I choose to be gracious, and have mercy upon whom I choose to have mercy.”) Compare this to Moshe’s response in a different situation found in Bamidbar (11:29), “You are jealous on my Behalf, Yehoshua? If only all of the Nation of Hashem become prophets as I.” So long as we follow the pashut peshat, that it was the offering of the ketores at the showdown, then Moshe’s position is understandable, as there was the immediate practical need of God proving Moshe and Aharon’s legitimacy. However, if we follow the Midrashic peshat, that Moshe was referring to the public offering and the Mincha, isn’t this spiteful and disrespectful?

Malbim (Numbers 16:21) tells us that the rebellion of Korach was different than other rebellions in that it was beyond the insubordination and disobedience, as Korach challenged the validity of Moshe’s revelation at Mount Sinai. In such a case, Moshe’s supplications that the rebellious crew be denied access to any mercy is understandable because he is defending God’s honor.

Occupied Territories

Our Gemara on Amud Beis discusses the ruling that testimony that one occupied a field or home for three years consecutively without any claims, it establishes a presumption of ownership. Yet this chazakah is only used to support a valid claim, such as, “I purchased this land many years ago and lost the bill of sale.” But if he makes no claim other than he occupied it with no challenges, even if he had testimony that he lived there for a hundred years, it would prove nothing as he is not claiming any prior means of acquisition. This is known as a chazakah she’ein imo ta’anah.

Chasam Sofer (Lech Lecha, ״Acharei”) notes that Avraham acquired the Land of Israel legally via his war with the Four Kings to recover his brother, Lot, who was taken hostage. The Jewish people only occupied Israel hundreds of years later, nevertheless the nations that stayed in Israel meanwhile, had no argument that this was undisputed territory. This is because it is a chazakah she’ein imo ta’anah, evidence of occupation without a valid basis, which is insufficient legal proof.

In International Law, what Avraham acquired is known as Defensive Conquest. The idea is that this is legitimate is an inferred exception to the post World War II United Nations agreement regarding the Law of Conquest. The Law of Conquest was a centuries-long de facto recognition that territory acquired via war and surrender establishes legitimate ownership. This is universal law, that originally did not consider where the acts of war were legal or appropriately instigated. This is why America has not given back all of its land to the Indians and why other nations of the world have not changed historic borders established after their wars in the last few centuries. After WWII, the Nations of the World agreed that Conquest was no longer a legitimate grantor of ownership, and war itself is illegal. However, in the case of land acquired as a result of a Defensive Conquest, one may argue that it should be legal. It is a reasonable assumption that the original centuries-long law of Conquest should be activated, since a Defensive War is legally sanctioned. The potential hitch in this argument is that this logic may only work up to the defenders borders, but not annexation. Even so, any additional lands acquired in order to establish strategic security ought to be considered legal as well, given that they were acquired as result of legal defensive action. For an analysis Israel and territory it acquired via its many defensive wars, see

https://docs.house.gov/meetings/GO/GO06/20180717/108563/HHRG-115-GO06-Wstate-KontorovichE-20180717.pdf

Preoccupations

Our Gemara on Amud aleph discusses that the presumption of ownership established via occupation over three years must be consecutive, and not interrupted by any time of non-occupation.

Sefer Daf al Daf uses this idea to explain a verse more deeply. Regarding the obligations to tithe produce, the verse states (Devarim 14:28):

מקצה שלש שנים תוציא את־כל־מעשר תבואתך בשנה ההוא והנחת בשעריך

Every third year you shall bring out the full tithe of your yield of that year, but leave it within your settlements.

Rashi (ibid) wonders why does the Torah especially discuss tithing after the third year, when it is a mitzvah every year. Rashi says this adds an injunction not to delay it past the third year. Panim Yafos says additionally, since the sages have taught that if one repeats a sin, he rationalizes it and now considers it permitted (Kiddushin 20a), the Torah added an extra requirement not to delay past the third year, so as not to ingrain the habit of avoidance. I believe Panim Yafos also is alluding to the emotional process of chazakah, since occupation for three years creates presumption of ownership, not giving tithes for three years undermines the belief that the Land belongs to God and promotes arrogance and the illusion of human self-reliance.

The Exceptional Case of Rav Avraham Danzig

Our Gemara on Amud Aleph recognizes that it is a valid argument for a claimant to maintain he was unaware someone was occupying his land due to him being preoccupied at the market, and was engaged in intense business and trade.

This brings to mind an inspirational historical fact about one the most respected poskim of Jewish history. Rav Avraham Danzig (1748-1820) authored numerous works, most famously his Chayye Adam and Chochmas Adam, a major code and commentary on Orach Chaim and Yoreh Deah. Significantly, he was NOT leaning in kollel or a pulpit rabbi by occupation, but rather a merchant. In his introduction to Chayye Adam he writes:

“My travels over great distances were not to accumulate wealth, but to provide for my family.”

He further writes: “If a person’s mind remains on the Torah and he longs for every free moment to study Torah, the Torah keeps him faithful. If man does not forget the Torah, neither does the Torah forget man.”

About himself he stated: “I say this not to show off, nor to take credit, because it is God who grants me intellect, but to teach others. I testify that when I was traveling I still studied Torah. I confess, even in the midst of negotiations, my mind was engrossed in a sugya.”

Since Talmudic times, in every generation there have been exceptional individuals, such as Rav Danzig, who somehow managed to support themselves as businessmen while devoting their energy and talents to Torah scholarship. Not only did they become knowledgeable, but actually contended with the greatest sages of their time and prior. How is this even physically possible? Even with their great talents, statistically, their peers had the same abilities without distraction. Can we imagine a backyard inventor proposing a new theory in physics that refutes Einstein? Or, an amateur gymnast outperforming an Olympian champion? Even among notable scholars in the Talmud, those non-working peers were considered superior, as the famous story of Ilfa and Rabbi Yochanan attests. These two peers chose different life paths when confronted with a crisis of poverty. Ilfa left the study hall to make a living, while Rabbi Yochanan redoubled his efforts and resolved to forge on in his studies Ta’anis (21). Despite Ilfa’s demonstrated prowess, Rabbi Yochanan was chosen as Rosh Yeshiva. But once in a while, there is a sage and businessperson who breaks the mold. Torah is different from other intellectual pursuits, and love for it coupled with moral development and attachment to God leads to divinely inspired knowledge, which goes beyond physical limitations.