12 – Land-Dependent Mitzvot

01. The General Principle of Land-Dependent Mitzvot

The Torah was given to Israel so that they would study it and fulfill its mitzvot in Eretz Yisrael, so that through their observance, blessing would flow to the Land and from there to the entire world. In Eretz Yisrael, God’s kingship, Torah, and blessing are revealed, and from there they spread to the whole world; outside the Land, by contrast, it is difficult for them to be revealed. Therefore, in the Land it is revealed that “the Lord is God,” whereas outside the Land He referred to only as “God of gods.” This is why the Sages said that a Jew who lives outside the Land is comparable to one who worships idols (Ketubot 110b). They further taught: “As long as you are in the Land, I am God to you; when you are not in the Land, it is as though I am not your God” (Tosefta, Avoda Zara 4:5). For this reason, the mitzva of settling the Land is said to be equivalent to all the mitzvot (Sifrei, Re’eh 80; Ramban to Vayikra 18:25).

The Torah similarly states: “For you are crossing the Jordan to come and inherit the land that the Lord your God is giving you; you shall inherit it and dwell in it. And you shall observe to perform all the statutes and ordinances that I place before you today. These are the statutes and ordinances that you shall observe to perform in the land that the Lord, God of your fathers, has given you to inherit, all the days that you live upon the earth” (Devarim 11:32–12:2). This implies that the obligation of the mitzvot applies specifically in the Land. Yet, by contrast, it is stated there (11:16–18): “Take care lest your heart be seduced, and you turn aside and worship other gods and bow down to them. Then the anger of the Lord will burn against you… and you will quickly perish from upon the good land that the Lord is giving you. [Nevertheless, even when you are in exile,] you shall place these words of Mine upon your heart and upon your soul; you shall bind them as a sign upon your hand, and they shall be as frontlets between your eyes.” Thus, even in exile, one is commanded to fulfill the mitzvot.

The Sages explained that land-dependent mitzvot – that is, mitzvot rooted in the soil – apply specifically in Eretz Yisrael. Mitzvot that are not land-dependent, however, remain obligatory even in exile, so that the nation will remember them and know how to fulfill them when it returns to the Land. Their observance in exile also stirs the nation to repentance and helps bring its redemption nearer (Yerushalmi, Shevi’it 6:1; Mishna, Kiddushin 1:8; Kiddushin 37a; Sifrei, Ekev 43–44).

The land-dependent mitzvot are: ḥalla, orla, kil’ei zera’im, kil’ei ha-kerem, ḥadash, leket, shikḥa, pe’a, peret, olelot, bikurim, terumot and ma’asrot, reishit ha-gez, shevi’it, and yovel. According to many authorities, this category also includes the priestly gifts of the foreleg, cheeks, and maw (below, section 16). Although these mitzvot apply primarily in the Land, many of them extend in some measure even outside the Land, as explained in the note. There are also many public mitzvot dependent on the Land, such as establishing a judicial system, as well as many mitzvot dependent on the building and functioning of the Temple. These will not be addressed in this chapter.^[1]

The obligation of all land-dependent mitzvot depends not only on Eretz Yisrael itself, but also on the Jewish people’s national presence there. The obligation began only after Israel entered the primary part of the Land – the western side of the Jordan, the land of the seven Canaanite nations. For some mitzvot, the Torah requires an even more complete national settlement: shevi’it and yovel apply by Torah law only when the nation dwells in its Land properly, each tribe in its inheritance (below, section 14), while ḥalla and terumot and ma’asrot apply by Torah law only when most of the Jewish people are in the Land (below, sections 2, 10, and 11).

In brief, the public mitzvot dependent on the Land include: the mitzva of settling the Land and all that it entails, such as the war to conquer it; “They shall not dwell in your land”; “You shall not show them favor”; the Levite cities and cities of refuge; the eradication of idolatry; appointing a king, or another form of leadership with the status of a king; appointing judges and officers in all the gates of Israel; ordaining judges; sanctifying months; intercalating years; egla arufa; the rebellious elder; building the Temple and performing the sacrificial service; walled-city houses; house afflictions; and the condemned city.

02. The Beginning of the Obligation

From the moment the nation entered the Land, it became obligated in the mitzvot that are incumbent on individuals independently: ḥadash, orla, kil’ei zera’im, and kil’ei ha-kerem. These mitzvot applied to the territory west of the Jordan that those who left Egypt were commanded to conquer, as described in Parashat Mas’ei (Bamidbar 34). Once the nation crossed the Jordan, the obligation applied to that entire territory, even though it had not yet been conquered in practice. Since the eastern side of the Jordan had already been conquered, the obligation extended there as well. However, in areas outside gevul olei Mitzrayim – the borders of the Land as settled by those who came out of Egypt – even if they lie within the broader borders of Eretz Yisrael, from the River of Egypt to the Euphrates, these mitzvot did not apply unless those areas were conquered by the Jewish people collectively.^[2]

A second group consists of mitzvot tied to the nation’s collective life in the Land. This includes terumot and ma’asrot, which field owners give to kohanim, levi’im, and the poor, as well as shevi’it and yovel, which structure the life of the nation as a whole. The nation became obligated in these mitzvot only after the conquest of the Land was complete and the Land had been divided among the tribes. The conquest took seven years. Dividing the Land among the tribes and families took another seven years, until every Jew received his portion. Thus, in the fifteenth year after entering the Land, they began counting the years toward shevi’it and yovel, separating terumot and ma’asrot, and leaving the gifts for the poor. In the twenty-first year, they observed the first shevi’it; in the sixty-fourth year, they observed the first yovel (Sifrei, Ekev 41; Peninei Halakha: Shemita Ve-yovel 5:1).^[3]

Before the Temple was built in Jerusalem, ma’aser sheni and neta reva’i were eaten near the Mishkan in Shilo, and bikurim were brought there as well (Mishna, Zevaḥim 14:4–8). This was the practice throughout the 369 years that the Mishkan stood in Shilo. Afterward, the Mishkan was located in Nov and Givon for another 57 years. From there, the center of worship moved to Jerusalem, to the Temple built by Shlomo, which stood for 410 years (Zevaḥim 118b; MT, Laws of the Temple 1:2).

03. Syria

Beyond the territory conquered by Moshe and Yehoshua, where the twelve tribes had settled, King David later conquered Syria. Syria included areas within the borders of Eretz Yisrael, such as Aram Damascus, as well as areas beyond those borders, such as Aram Naharayim, between the Euphrates and the Tigris. David’s aim was to subdue enemies who might threaten the nation in the future. Rather than allow hostile kingdoms to develop there, he appointed governors who collected tribute, thereby strengthening his kingdom (2 Shmuel 8:3–13; 10:16–19).

The Sages said that this conquest was not carried out in the proper order. The mitzva was first to conquer all the land of Canaan within the borders described in Parashat Mas’ei (Bamidbar 34), whereas David conquered Syria before conquering Jerusalem, which was then controlled by the Yevusites (Sifrei, Ekev 51). Apparently, David departed from the proper order because he did not intend to designate Syria for Jewish settlement; at that time, the Jewish people had not yet properly settled the areas inherited in the days of Yehoshua bin Nun. He reasoned that since he was conquering Syria only to subdue enemies and collect tribute for the kingdom, this would not be considered a violation of the proper order. For this reason, his conquest is called kibbush yaḥid, an “individual conquest” – a conquest undertaken to strengthen his kingdom, not to settle the Land.

Because Syria had been conquered outside the proper order, its halakhic status became disputed. According to R. Meir, even kibbush yaḥid is halakhically effective by Torah law; therefore, Syria became subject to the land-dependent mitzvot by Torah law. One must separate terumot and ma’asrot there by Torah law, and one may not sell a house there to a non-Jew. According to R. Yose, however, kibbush yaḥid does not give Syria the full status of the Land. The land-dependent mitzvot therefore apply there only by rabbinic enactment, including terumot and ma’asrot, and when necessary, one may sell a house there to a non-Jew. The halakha follows R. Yose (Gittin 8a–b; Avoda Zara 21a; MT, Laws of Idolatry 10:3).

Even so, Syria is not treated simply as outside the Land. Since all territories up to the Euphrates are within the broader borders of Eretz Yisrael, there is a mitzva to settle them and purchase homes there. The mitzva to settle these areas is significant enough that if the opportunity to purchase a house there arises on Shabbat, a Jew may even set aside a rabbinic prohibition classified as shevut in order to complete the purchase (MT, Laws of Shabbat 6:11). ^[4]

04. The Exile and the Destruction of the First Temple

When the tribes of Reuven, Gad, and half of Menashe were exiled – in the year 3188 from Creation, about 150 years before the destruction of the First Temple – shevi’it and yovel ceased to apply by Torah law. The Torah states with regard to yovel: “You shall proclaim liberty throughout the land to all its inhabitants” (Vayikra 25:10). The Sages explain that yovel applies only when all its inhabitants are in the Land, not when some of them have been exiled. Once yovel no longer applies by Torah law, shevi’it no longer applies by Torah law either (Arakhin 32b; Gittin 36a; see Peninei Halakha: Shemita Ve-yovel 1:9 and 5:3 for the reason). At that point, however, terumot and ma’asrot still applied by Torah law. Although shevi’it itself was then observed only by rabbinic enactment or as a matter of custom, the years were still counted according to the Torah’s shevi’it cycle, and that count determined the order of the tithes – when ma’aser sheni was separated and when ma’aser ani was separated. See MT, Laws of Shemita Ve-yovel 10:5 and Tosafot, Arakhin 12b, s.v. hanakh shanei.

About eighteen years after that, in the year 3206 from Creation, ḥalla, terumot, and ma’asrot also ceased to apply by Torah law, because most of the Jewish people were no longer in the Land. With the destruction of the First Temple, the sanctity that had served as the basis for the national-collective land-dependent mitzvot was annulled. This affected ḥalla and teruma, which are given to kohanim; ma’aser rishon, given to levi’im; ma’aser sheni, eaten in Jerusalem; ma’aser ani, given to the poor; and shevi’it and yovel. What all these mitzvot have in common is that they depend on the national condition of the Jewish people in their Land. Some depend on most of the Jewish people being in the Land; others, such as shevi’it and yovel, depend on all the tribes dwelling in their inheritances. Therefore, when that national order collapsed, the basis for these mitzvot lapsed as well. This is what the Sages meant when they said: “The first sanctification sanctified for its time but not for the future” (Ḥullin 7a). In other words, the first sanctification of the Land was annulled with the destruction of the First Temple.

Individual land-dependent mitzvot, by contrast, such as orla and kilayim, continue to apply by Torah law even after the destruction of the Temple and the exile of the Jewish people. Since their obligation began when the nation entered the Land, before the conquest and division into inheritances, destruction and exile do not annul that obligation. ^[5]

05. The Prophetic Enactment of Terumot and Ma’asrot in Babylonia

Toward the end of the First Temple period, after the exile of Yehoyakhin, a Jewish community began taking shape in Babylonia. At that point, the prophets instituted the separation of terumot and ma’asrot from produce grown in Shinar, that is, Babylonia. Since Babylonia was adjacent to Eretz Yisrael, and many Jews were leaving for Babylonia and settling there, the prophets sought to preserve the values embodied by the mitzva among the exiles and to support the poor. They may also have been concerned that some Jews would leave the Land in order to avoid separating approximately one-fifth of their produce as terumot and ma’asrot. For these reasons, they required terumot and ma’asrot in Babylonia as well. Since shemita does not apply there, the enactment remained in force even during the seventh year; in Babylonia, one would separate ma’aser sheni in that year as well, as will be explained below in section 13.

It seems that Jews in Babylonia continued separating terumot and ma’asrot even after the destruction of the Temple. They also continued counting the shemita years, because that cycle determined which tithe was separated: in years 1, 2, 4, 5, and 7, the tithe was classified as ma’aser sheni; in years 3 and 6, as ma’aser ani (see MT, Laws of Shemita Ve-yovel 10:5). After the destruction, however, ma’aser sheni could no longer be eaten in Jerusalem in its normal manner and therefore had to be redeemed.

In Eretz Yisrael itself, however, one was no longer obligated to separate terumot and ma’asrot. Some presumably continued separating them as a continuation of ancestral practice, but the obligation did not return until the Men of the Great Assembly returned and sanctified the Land a second time.

Even after the Land was sanctified a second time, the enactment established by the prophets concerning Babylonia remained in force. The elders who led the Jewish people after Ezra the Scribe later extended this requirement to Egypt, where a large Jewish community emerged as well. Since shemita does not apply outside the Land, they determined that during the seventh year ma’aser ani should be separated in Egypt, so that the poor of Eretz Yisrael could benefit from it during the year in which they received no gifts from the Land’s fields. Later, they extended this requirement to Ammon and Moav as well: terumot and ma’asrot were to be separated there too, and during the seventh year of the cycle, the second tithe was designated as ma’aser ani, as in Egypt, so that the poor of Eretz Yisrael could benefit from it during shemita (Mishna, Yadayim 4:3).^[6]

06. The Acceptance of Torah in the Days of Ezra

Fifty-two years after the destruction of the First Temple, Cyrus, king of Persia, granted the Jews of Babylonia permission to return to the Land and rebuild the Temple. Yet only 42,000 volunteered to ascend. The returnees settled in Jerusalem and its surroundings, built the altar, offered sacrifices upon it, and prepared to build the Temple. However, because of accusations sent by the peoples of the land to the Persian kingdom, construction was halted for eighteen years, until Daryavesh II, son of Aḥashverosh and Queen Esther, authorized the building of the Temple (Megilla 11b–12a, and Rashi there).

Despite all this, the national and spiritual state of the Jewish people was still at a low point. The overwhelming majority of the nation chose to remain in exile, while the Jewish settlement in the Land was small in number and spiritually impoverished. Few were engaged in Torah; many mitzvot were neglected; and even many from among the kohanim sinned by marrying non-Jewish women. Apparently, many believed that once the Jewish people had become scattered and dispersed among the nations, there was no longer an obligation to observe the mitzvot. It therefore became necessary, at the beginning of this new period, to determine how Torah observance would continue among Israel.

In the sixth year of the Temple’s construction, Ezra the Scribe, a towering spiritual figure, ascended from Babylonia and began stirring the people to engage in Torah and observe the mitzvot. The Sages described his greatness in remarkable terms: “Ezra was worthy for the Torah to be given through him, had Moshe not preceded him” (Sanhedrin 21b). They further said: “When Torah was forgotten from Israel, Ezra ascended from Babylonia and established it” (Sukka 20a). Ezra was not only a sage but also a prophet; according to the Sages, Malakhi was his prophetic name (Megilla 15a). About thirteen years after Ezra’s ascent, Neḥemya, a minister in the Persian court, ascended to Jerusalem with governing authority from the king of Persia. Together, Ezra and Neḥemya strengthened the Jewish settlement in the Land, both nationally and religiously.

The Sages compared the nation’s return to the Land in the days of Ezra to its first entry in the days of Yehoshua bin Nun. Just as the nation accepted the mitzvot upon itself when it first entered the Land under Yehoshua, so too it had to accept them anew upon returning in the days of Ezra. And just as those who left Egypt were commanded, after entering the Land, to renew the covenant over the Torah they had received at Sinai, at Mount Gerizim and Mount Eival (Devarim 11:29–32; 27:1–26), so too the covenant had to be renewed in the days of Ezra (Yerushalmi, Shevi’it 6:1; Arakhin 32b).

Indeed, this is exactly what the verses describe: in the days of Ezra and Neḥemya, the nation accepted upon itself to keep the Torah, with special emphasis on the mitzvot that required strengthening. As it is stated (Neḥemya 10:1–40): “And because of all this we make a covenant and write it, and our officers, our levi’im, and our kohanim are sealed upon it. And upon those sealed [were the priestly and Levitical clans and the heads of the people] … And they enter into a curse and an oath to walk in the Torah of God, which was given by the hand of Moshe, servant of God, and to observe and perform all the mitzvot of the Lord our Master, His ordinances, and His statutes. We will not give our daughters to the peoples of the land [the non-Jews], nor take their daughters for our sons. And as for the peoples of the land who bring merchandise or any grain on Shabbat to sell – we will not buy from them on Shabbat or on a holy day [that is, we will not conduct commerce on Shabbat or festivals]; and we will leave the seventh year [to rest during shemita], and every debt [the remission of debts]… And we will bring the first fruits of our soil and the first fruits of every fruit tree, year by year, to the house of the Lord. And the firstborn of our sons and of our animals, as written in the Torah, and the firstborn of our cattle and our flocks, we will bring to the house of our God, to the kohanim who serve in the house of our God. And the first of our doughs [ḥalla], our terumot, and the fruit of every tree, wine, and oil, we will bring to the kohanim, to the chambers of the house of our God, and the tithe of our soil to the levi’im…”

To reestablish Torah among the Jewish people, Ezra the Scribe founded the Great Assembly, the greatest and most important court in Jewish history. It consisted of 120 sages, among them the last prophets. This court examined the state of Jewish life and instituted the structures that would allow the Jewish people to endure even in dispersion, with part of the nation in the Land and the majority outside it. Among other things, the Men of the Great Assembly established the text of the tefillot and berakhot, the times for public Torah reading in the synagogues, and the days on which courts would sit to judge interpersonal disputes. Through these measures, the Men of the Great Assembly restored Torah to the Jewish people and laid the foundation for the continued development of the Oral Torah. They raised many students and paved the way for the sages of later generations to issue ordinances and establish safeguards according to the needs of each generation. ^[7]

07.The Second Sanctification and Its Halakhic Effect for the Communal-National Mitzvot

One of the most painful expressions of the crisis that befell the Jewish people after the destruction of the First Temple was that they were no longer obligated to observe the communal-national mitzvot dependent on the Land: shemita and yovel, terumot and ma’asrot, and the gifts to the poor. Through these mitzvot, the values of Torah enter the nation’s practical public life, and through them the Jewish people’s distinctive character is revealed. It stands to reason that even after the destruction, some Jews continued to observe these mitzvot to some degree; still, they did so as a continuation of ancestral practice, not because they were obligated. Ezra’s great achievement was restoring the obligation to observe these mitzvot. In the seventh year after the Temple was built, Ezra and his court renewed the halakhic sanctity of the Land with respect to the mitzvot dependent on it. They resumed the count toward shemita and yovel, and the Jewish people once again became obligated in the Land’s communal-national mitzvot: terumot and ma’asrot, ḥalla, the gifts to the poor, and shemita.

The Sages taught that the first sanctification, by which the Land was sanctified in the days of Yehoshua bin Nun for the communal-national mitzvot, was limited to its time and therefore was nullified with the destruction and exile. The second sanctification, in the days of Ezra, remained forever. The Torah states that after the Jewish people sin and suffer the punishment of exile, God will bring them back to their Land a second time: “The Lord your God will restore your fortunes and have compassion upon you, and He will return and gather you from among all the peoples where the Lord your God has scattered you… And the Lord your God will bring you to the land that your fathers possessed, and you shall possess it…” (Devarim 30:3–5). The Sages explain: “that your fathers possessed” refers to the first inheritance of the Land, in the days of Yehoshua bin Nun; “and you shall possess it” refers to the second inheritance, in the days of Ezra. Since the Torah does not mention a third inheritance, the sanctity created through the second inheritance remains forever. Therefore, even after the destruction of the Second Temple, the sanctity of the Land was not nullified (Yevamot 82b).

The first sanctification took effect through conquest; when the Land was taken from us and the conquest ended, that sanctity was nullified as well. The second sanctification, by contrast, was established through the Jewish people’s settlement of the Land and their hold upon it despite all difficulties. Since this sanctity took effect through settlement even without Jewish sovereignty, it was grounded in the Jewish people’s enduring claim to their Land – a claim based not on political control, but on the divine promise. Since that claim can never lapse, the sanctity established through it can likewise never be nullified, even after destruction and exile (see Rambam, MT, Laws of Terumot 1:5 and Laws of the Temple 6:16).

It appears, however, that the first sanctification served as the basis for the second. The sanctity of the Land as it applies to the mitzvot dependent on it reaches its full expression when the mitzva of settling the Land is fulfilled in both its dimensions: conquest and settlement. As the Torah states, “You shall possess it and dwell in it” (Devarim 11:31): “possess it” refers to conquest, and “dwell in it” refers to settlement. Once the Jewish people acquired their Land through both dimensions of the mitzva, the Land remained sanctified for its mitzvot forever.

Although some Rishonim disagree and maintain that the second sanctification, too, was nullified after the destruction (Rashba, Ritva, and Ran), the accepted halakha is that the second sanctification is never nullified. ^[8]p>

Some Rishonim maintain that the halakha follows the Sages: the second sanctification was nullified with the destruction, and therefore, after the destruction, the obligation to separate terumot and ma’asrot is rabbinic (Rashba, Ritva, Ran, Sefer ha-Teruma, and Tashbetz). Other Rishonim maintain that the halakha follows R. Yose: the second sanctification was not nullified, and therefore one must separate terumot and ma’asrot today by Torah law (Rashi, Raavad, Tur in the name of Ri, and Kaftor Va-feraḥ).

Rambam takes a third position. In his view, the second sanctification was not nullified. Nevertheless, the obligation to separate terumot and ma’asrot today is rabbinic, because the Torah obligation applies only when the majority of the Jewish people are in the Land. One may therefore explain that, according to Rambam, even the Sages who disagree with R. Yose agree that the second sanctification itself was not nullified. R. Yoḥanan’s point, then, is that according to the Sages, terumot and ma’asrot are rabbinic today because the Torah obligation depends on the majority of the Jewish people dwelling in the Land, as explained in Nidda 47a. This is how Rambam rules (MT, Laws of Terumot 1:26). This also appears to be the view of Sefer Mitzvot Gadol, positive commandment 133; Sefer ha-Ḥinukh §507; Maggid Mishneh to MT, Laws of Forbidden Relations 20:3; and Mahariṭ 1:25.

Likewise, virtually all Aḥaronim agree that the second sanctification sanctified the Land permanently. In practice, however, the Torah obligation to separate terumot and ma’asrot applies only when the majority of the Jewish people are in the Land (Radvaz; SA, YD 331:2; AHS).

Yerushalmi, Shevi’it 6:1 cites a baraita: “The nation’s entry in the days of Ezra is compared to its entry in the days of Yehoshua. Just as, when they entered in the days of Yehoshua, they had been exempt and then became obligated, so too, when they entered in the days of Ezra, they had been exempt and then became obligated.”

The Amora’im disagree about the level of obligation created in the days of Ezra. According to R. Yose bar Ḥanina, it was a Torah obligation. On the contrary, their greatness lay precisely in accepting the mitzvot despite their weakness: they were few in number, they lived under foreign rule, and they had not conquered the entire Land. It is about this that the Torah says, “He will do good to you and multiply you more than your fathers” (Devarim 30:5). Perhaps precisely because the Land was sanctified through such difficult settlement, its sanctity endured for generations: through their struggle to settle the Land, the Jewish people’s claim to their Land was clarified with greater force and for all time. See there. According to R. Elazar, however, Ezra’s return did not yet restore a Torah obligation. The people accepted the mitzvot upon themselves through rabbinic authority, and precisely for that reason they needed to seal this acceptance through a covenantal pledge (Neḥemya 10:1, 33, 36–38). On this view, the full and enduring inheritance of the Land still lies in the future, when the Land will again be sanctified by Torah law. This seems to indicate that the halakha follows R. Elazar.

Many, however, explain R. Elazar’s view in line with Rambam. On this reading, R. Elazar does not mean that the second sanctification was merely temporary or lacked Torah force at its core. Rather, during the Second Temple period, one was obligated to separate terumot and ma’asrot and to observe shemita and yovel only by rabbinic enactment, because the necessary national conditions had not yet been met: the majority of the Jewish people were not in the Land, and the tribes were not dwelling there in their proper order (Mahara Fulda, Penei Moshe, and Rash Sirilio). Nevertheless, R. Elazar agrees that the second sanctification has a Torah-law foundation and remains in force for all generations. Therefore, once the majority of the Jewish people are in the Land, the Torah obligation of these mitzvot will take effect without any further sanctification.

1. Shimshon of Sens, in his commentary to Shevi’it 6:1, explains the Yerushalmi’s dispute differently. In his view, R. Yose bar Ḥanina and R. Elazar both agree that when the second sanctification took effect, one was obligated by Torah law to separate terumot and ma’asrot. Their dispute concerns the permanence of that sanctification. According to R. Yose bar Ḥanina, the nation was required by Torah law to sanctify the Land, just as in the days of Yehoshua; for that reason, its sanctity remained for generations. According to R. Elazar, however, the nation had the authority to sanctify the Land by Torah law, but chose to sanctify it only for as long as the Temple stood. Therefore, once the Temple was destroyed, the obligation to separate terumot and ma’asrot became rabbinic. With the third entry into the Land, however, the obligation will again become Torah law without any further sanctification. This explains the view of Rashba, Ritva, and Ran.

According to the Vilna Gaon (Bi’ur Ha-Gra 331:6), the halakha follows R. Elazar: the second sanctification was rabbinic in origin, yet it sanctified the Land for all generations, as Rambam rules. Even so, the Vilna Gaon agrees that no third sanctification will be necessary. The second sanctification remains in place, and when the majority of the Jewish people are in the Land, one will be obligated by Torah law to separate terumot and ma’asrot.

Above, I followed the earlier views, which maintain that the Land was sanctified in the days of Ezra by Torah law. According to Rambam and those who agree with him, however, shemita, terumot, and ma’asrot remained rabbinic at that time because the majority of the Jewish people were not in the Land.

08. Where the Sanctity Applies: Olei Bavel and Olei Mitzrayim

Since the second sanctification took effect through Jewish settlement, it applied wherever Jews settled during the Second Temple period. As the settlement of olei Bavel expanded, so too did the boundaries of the sanctity, and these areas became known as gevul olei Bavel, “the territory of olei Bavel.” At first, those who ascended from Babylonia settled in Yehuda and Binyamin. In later generations, as the Hasmonean kingdom expanded Jewish rule, and as immigration and natural population growth continued, Jewish settlement spread to Shomron, the Lower and Upper Galilee, the coastal plain from Ashkelon to Akko, the Golan, and the eastern side of the Jordan.

When Ezra and his court sanctified the places of Jewish settlement, the sanctity was reawakened in all the areas previously conquered by olei Mitzrayim, on both sides of the Jordan, and even extended to Syria. However, they determined that in gevul olei Bavel, the sanctity would apply by Torah law, while in gevul olei Mitzrayim and Syria, it would apply only by rabbinic enactment.

The Men of the Great Assembly could have determined that the second sanctification would extend fully to all of gevul olei Mitzrayim and Syria. Since those areas were not properly settled by Jews, however, they left them subject only to a less stringent rabbinic obligation, thereby easing matters somewhat for the poor. At the same time, they did not leave these regions outside the obligation entirely. They wanted the poor living there to benefit from terumot and ma’asrot and from produce being left ownerless during shemita. Thus, these areas had an intermediate status: not the full status of gevul olei Bavel, but not the status of ordinary territory outside the Land either.

A similar distinction existed even within the broader area of gevul olei Bavel. Some cities, such as Beit She’an and Ashkelon, were inhabited mainly by non-Jews, and the Sages did not give them the full status of the rest of gevul olei Bavel (Ḥagiga 3b; Ḥullin 7a). In those days, people knew which places had the full status of gevul olei Bavel, which places had the lesser status of gevul olei Mitzrayim or Syria, and which cities were treated more leniently because they were not properly settled by Jews. Over time, however, that knowledge was forgotten, and the authorities disagree about the status of these places, as explained below in section 12.

In any case, once the Men of the Great Assembly sanctified the Land with respect to the communal-national mitzvot dependent on it, they did not need to sanctify each additional place where Jewish settlement later expanded during the Second Temple period. Rather, as Jewish settlement spread, the sanctity spread with it. Even after the destruction of the Second Temple, that sanctity remained throughout gevul olei Bavel, for any place sanctified through the second sanctification never loses its sanctity again. As explained above in section 7, the Sages derived that after the second sanctification, through which the Men of the Great Assembly sanctified the Land, the Jewish people would never again need to sanctify it. It follows that when we say that in gevul olei Mitzrayim one is obligated in the communal-national mitzvot only rabbinically, this refers specifically to places that did not have organized Jewish settlement during the Second Temple period. ^[9]

09. The Decree of Impurity upon Eretz Ha-amim

During the Second Temple period, the Sages decreed impurity upon eretz ha-amim, “the lands of the nations” – that is, places outside gevul olei Bavel where there was no organized Jewish settlement. The reason for the decree was that non-Jews would sometimes bury their dead directly in the ground, without a coffin. Over time, bones from the dead could become scattered, broken, and mixed into the earth until they were difficult to identify. Since even a bone from a corpse, whether Jewish or non-Jewish, imparts impurity through contact if it is at least the size of a barley grain, the Sages decreed that one who touches the earth of eretz ha-amim is treated as one who touched a corpse and becomes impure.

The decree had another purpose as well: to prevent Jews from leaving the bounds of Jewish settlement, for that was where the mitzva of settling the Land was being fulfilled properly. The Sages wanted Jewish settlement, and the sanctity that accompanied it, to spread gradually and firmly, rather than have Jews scatter among non-Jews in places that would not be regarded as truly possessed by the Jewish people. Indeed, the decree proved effective, as people refrained from leaving the area of Jewish settlement even temporarily. This is also reflected in the fact that they referred to places outside the area of Jewish settlement as “outside the Land” and eretz ha-amim, even when those places lay within the broader borders of Eretz Yisrael (Gittin 76b).^[10]

Since kohanim are forbidden to become impure through contact with the dead, once the Sages decreed impurity upon eretz ha-amim, kohanim were prohibited from leaving gevul olei Bavel. They were permitted to leave only for a significant need, such as to protect their property, to marry, or to study Torah (Avoda Zara 13a). Today, when the laws of ritual purity are not practiced, kohanim may leave gevul olei Bavel. What remains is the general prohibition, which applies to every Jew, against leaving Eretz Yisrael. ^[11]

10. Ḥalla

One is obligated to separate ḥalla in Eretz Yisrael by Torah law only when the majority of the Jewish people are in the Land. As the Torah states: “When you come to the land to which I bring you, then it shall be, when you eat of the bread of the land, you shall set aside a gift to the Lord” (Bamidbar 15:18–19). The Sages derive from the phrase “when you come” that the Torah obligation applies only when the Jewish people enter the Land as a whole, not when only part of the nation enters (Ketubot 25a). Therefore, in the days of Ezra, when only part of the nation returned to the Land, the obligation to separate ḥalla did not apply by Torah law. Nevertheless, the Men of the Great Assembly, led by Ezra the Scribe, enacted that ḥalla be separated even when the majority of the Jewish people are not in the Land (MT, Laws of First Fruits 5:5).

The Sages went further and required ḥalla to be separated throughout the world, so that the laws of ḥalla would not be forgotten from the Jewish people (Bekhorot 27a; MT, Laws of First Fruits 5:7). They enacted this specifically for ḥalla, and not for terumot and ma’asrot, because ḥalla resembles personal obligations more than mitzvot tied to the soil: the obligation begins when one kneads dough (Tosafot, Kiddushin 36b). In addition, ḥalla is relevant to everyone, whereas terumot and ma’asrot are relevant only to farmers (Mahari Kurkus to MT, Laws of First Fruits 5:7).

Once the Sages decreed impurity upon eretz ha-amim – that is, upon all areas outside the settlement boundary of olei Bavel – ḥalla could no longer be eaten in those impure places, since ḥalla is sacred and may be eaten only by someone who is ritually pure. Therefore, in Eretz Yisrael within gevul olei Mitzrayim, the Sages required two portions of ḥalla to be separated. The first portion was the rabbinic amount – one forty-eighth of the dough – and was burned because it was impure. This preserved the awareness that ḥalla is sacred and may not be eaten by someone who is ritually impure. The second portion could be any amount the owner chose, even the smallest amount, and was given to a kohen. This preserved the awareness that ḥalla is not only sacred, but also a priestly gift meant to be eaten by kohanim.

Kohanim were permitted to eat this second portion even while ritually impure, provided they were impure only through contact with an external source of impurity. If, however, the impurity originated in the body, such as impurity from a seminal emission or nidda, the kohen could eat this ḥalla only after immersing for purification.

In Syria and other lands outside Eretz Yisrael, where the basis of the obligation of ḥalla is lower, the law is different. If a kohen is available who is not impure with body-derived impurity – such as a minor who has never become impure in that way, or an adult who has immersed – one separates a single portion of ḥalla and gives it to him to eat. If no such kohen is available, two portions of ḥalla are separated. The first, even the smallest amount, is burned, preserving the awareness that ḥalla may not be eaten in impurity. The second, in the rabbinic amount of one forty-eighth of the dough, is given to a kohen to eat, even if he is impure with body-derived impurity (Mishna, Ḥalla 4:8; Bekhorot 27a; MT, Laws of First Fruits 5:7–11).^[12]

Since we no longer have the ashes of the red heifer and cannot become purified from corpse impurity, kohanim today cannot eat ḥalla in Eretz Yisrael. Therefore, in Eretz Yisrael, one separates a single portion of ḥalla, of any size, and burns it. Some maintain that the same practice applies outside the Land as well. The original reason for separating two portions of ḥalla outside the Land was to preserve the memory of ḥalla being eaten by kohanim in the Land. Once ḥalla is no longer eaten by kohanim in the Land, there is no reason to separate an additional portion outside the Land for a kohen to eat. Instead, one separates only one portion and burns it, as is done in Eretz Yisrael. This is the widespread practice (above, 11:4, note 2).

11. Terumot and Ma’asrot: By Torah Law or Rabbinic Enactment?

 All agree that the Men of the Great Assembly sanctified the Land a second time so that the Jewish people would once again become obligated in the communal-national mitzvot dependent on the Land, including terumot and ma’asrot.

The Amora’im and Rishonim disagree, however, regarding the level of that obligation: did the second sanctification restore the Torah obligation to separate terumot and ma’asrot, or did it establish only a rabbinic obligation? According to many Rishonim, once the Men of the Great Assembly sanctified the Land, one was once again obligated by Torah law to separate terumot and ma’asrot. However, after the destruction of the Second Temple, authorities disagree about whether that Torah obligation continued. Some maintain that it remained in force, as the Land had been sanctified forever (Rashi, Raavad, and Kaftor Va-feraḥ). Others maintain that after the Temple was destroyed, the obligation to separate terumot and ma’asrot became rabbinic (Rashba, Ritva, Ran, and Sefer ha-Teruma).

According to Rambam, even after the Men of the Great Assembly sanctified the Land, one was obligated to separate terumot and ma’asrot only by rabbinic enactment. Terumot and ma’asrot, like ḥalla, apply by Torah law only when the majority of the Jewish people dwell in the Land. Nevertheless, the sanctification performed by the Men of the Great Assembly was halakhically effective: the Land once again had the sanctified status necessary for terumot and ma’asrot. Therefore, when the majority of the Jewish people are not in the Land, one is obligated only rabbinically; once the majority of the nation is in the Land, one will be obligated to separate terumot and ma’asrot by Torah law, without any need to sanctify the Land again. This is the accepted position among the Aḥaronim. ^[13]

12. Other Areas with Respect to Terumot and Ma’asrot

As we learned above in section 8, when the Men of the Great Assembly sanctified the Land, they sanctified the place of settlement – that is, gevul olei Bavel, the area settled by those who ascended from Babylonia. As a result, the sanctity was also reawakened in all the places conquered by olei Mitzrayim, on both sides of the Jordan, and even spread to Syria. The Sages determined that by virtue of that sanctity, the communal-national mitzvot dependent on the Land would apply in all these places. The difference was in the level of obligation: in gevul olei Bavel, the basis of the obligation was Torah law, while in gevul olei Mitzrayim and Syria, it was rabbinic. Later, Yoḥanan the High Priest instituted the enactment of demai. Under this enactment, one who purchased produce from amei ha-aretz had to separate the tithes and terumat ma’aser out of doubt. Yoḥanan determined that this enactment would apply in gevul olei Bavel, but not in gevul olei Mitzrayim. According to most Rishonim, this is the only difference between gevul olei Bavel and gevul olei Mitzrayim with respect to terumot and ma’asrot, and this is how the Aḥaronim ruled.

However, some Rishonim maintain that the difference between them is more extensive. They argue that in the territory of olei Bavel one must separate terumot and ma’asrot from all fruits and vegetables by rabbinic enactment, whereas in the territory of olei Mitzrayim one must separate only from grain, wine, and oil, the only categories that, according to most Rishonim, are subject to terumot and ma’asrot by Torah law (Rashi, Raavad, and Kaftor Va-feraḥ). ^[14]

In practice, the Aḥaronim agree that one must separate terumot and ma’asrot from all types of produce even in gevul olei Mitzrayim and Syria; only the enactment of demai does not apply there (Sha’arei Tzedek 13:44; Gevulot Ha-sadeh 3:8). As for cities formerly inhabited mainly by non-Jews, one could have relied on Rambam’s view and exempted them from terumot and ma’asrot altogether. However, since the precise location of the exempt areas is uncertain, and according to most Rishonim these cities remain obligated, the ruling is to separate there without a berakha (see Mishpetei Eretz 3:6).

Regarding Syria, all agree that as a matter of basic law, one must separate terumot and ma’asrot there. Nevertheless, many had the practice not to separate them. They maintained that even land purchased by Jews was not truly theirs, because ultimate ownership remained with the king. If so, the produce was considered to have grown on non-Jewish land; and in Syria, produce grown on non-Jewish land does not require terumot and ma’asrot, even if a Jew completed the final processing of the fruit (Gittin 47a; above, end of note 4). In practice, however, the authorities write that one must separate terumot and ma’asrot in Syria from produce grown on land registered in a Jew’s name. ^[15]

13. Terumot and Ma’asrot Outside the Land

As we learned above in section 5, the prophets and later Sages required terumot and ma’asrot to be separated in four lands adjacent to Eretz Yisrael: Babylonia, Egypt, Ammon, and Moav. Even after the Sages decreed impurity upon eretz ha-amim, they allowed kohanim to eat the teruma separated in those lands, provided the kohen was not impure with body-derived impurity, as explained above in section 10. Ma’aser sheni, however, could not be brought to Jerusalem to be eaten there. Instead, it was redeemed onto money, and that money was brought to Jerusalem and used to purchase food there (MT, Laws of Ma’aser Sheni 1:14). Since shemita does not apply outside the Land, they required terumot and ma’asrot to be separated there even during the seventh year.

In practice, already in the Geonic period, the accepted custom was not to separate terumot and ma’asrot in the four lands adjacent to the Land. The Geonim explained that once people no longer maintained ritual purity, the enactment requiring terumot and ma’asrot outside the Land no longer applied. Although Rambam and SA rule that one must separate terumot and ma’asrot in those four lands, and some maintain that this remains the preferred practice, the accepted custom is not to separate terumot and ma’asrot outside the Land at all. ^[16]

14. Shemita

Nearly all Tanna’im agree that about 150 years before the destruction of the First Temple, when the king of Assyria exiled the tribes of Reuven, Gad, and half of Menashe, shemita and yovel ceased to apply by Torah law. These mitzvot apply by Torah law only when Israel dwells properly in its Land, with the majority of each tribe in its inheritance (Arakhin 32b; Peninei Halakha: Shemita Ve-yovel 5:4, note 3). Thus, when the Men of the Great Assembly sanctified the Land with respect to shemita and yovel, the conditions for Torah obligation had not yet been restored. During the Second Temple period, therefore, the Jewish people were obligated to observe them by rabbinic enactment. That sanctification remained effective for the future as well: when Israel returns to its Land, each tribe to its inheritance, shemita and yovel will again apply by Torah law, without any need to sanctify the Land again.

Even after the destruction of the Second Temple, the rabbinic obligation to observe shemita was not nullified. True, uncertainty emerged regarding which year is the seventh year. In addition, some Rishonim maintain that once the court that sanctified the months and counted the years no longer functioned – about 300 years after the destruction of the Second Temple – the obligation of shemita ceased as well. According to them, observing shemita today is proper only as a pious practice (Razah and Raavad). In practice, however, the overwhelming majority of Rishonim and Aḥaronim maintain that even today one must observe shemita by rabbinic enactment, following the accepted count transmitted to us (Peninei Halakha: Shemita Ve-yovel 5:6–7, notes 5–6).

One must observe shemita in gevul olei Mitzrayim and Syria as well. However, the prohibition of sefiḥim – produce that grew on its own during shemita – was enacted specifically for gevul olei Bavel, not for gevul olei Mitzrayim or Syria (Rambam, Sefer Mitzvot Gadol, Sefer ha-Ḥinukh, and others). Some authorities are even more lenient and maintain that in gevul olei Mitzrayim and Syria, shemita produce may be eaten even after the time of bi’ur. According to another view, produce grown there does not have the sanctity of shemita at all. ^[17]

15. Gifts to the Poor

The mitzvot of leket, shikḥa, pe’a, peret, and olelot – the gifts left in the field for the poor – apply by Torah law only in Eretz Yisrael. Just as the Sages required terumot and ma’asrot to be separated in lands near Eretz Yisrael, they similarly required the gifts to the poor to be left outside the Land (Rambam; Tur, YD 332:1). Some maintain that this requirement applied only in lands adjacent to Eretz Yisrael (Itur; Shakh 332:2).

Although the requirement to separate terumot and ma’asrot outside the Land was no longer practiced from the time of the Geonim, the requirement to leave the gifts to the poor remained in force. Teruma and ma’aser sheni depend on the laws of purity and on the Temple service; once those conditions were no longer present, the requirement outside the Land no longer served its purpose. Gifts to the poor, however, continued to serve their purpose even outside the Land, since poor Jews could still benefit from them. Therefore, even after the destruction of the Temple, the requirement to leave those gifts remained in place. Today the practice is not to leave the gifts to the poor, as explained above in 6:9, because poor people do not generally find it worth the effort to collect them.

The authorities disagree about the status of the gifts to the poor in Eretz Yisrael today: must one leave them by Torah law, or only by rabbinic enactment? This dispute turns on whether the mitzva is classified as an individual mitzva or as a communal-national mitzva, as explained above in section 4 and at the end of note 2. Some maintain that today one must leave the gifts to the poor only rabbinically (Sefer ha-Ḥinukh 216; Pe’at ha-Shulḥan 4:39). Others maintain that one must leave them by Torah law (Minḥat Ḥinukh 216:15; Degel Reuven II, 28–29), and that this Torah obligation applies throughout all of gevul olei Mitzrayim (Yeshu’ot Malko to MT, Laws of Terumot 1:26).

16. Priestly Gifts from Livestock

Regarding reishit ha-gez, the first shearing of one’s sheep, the Tanna’im disagree whether the mitzva applies outside Eretz Yisrael. In practice, the halakha follows the view that one gives reishit ha-gez only in the Land, just as one separates terumot and ma’asrot only in the Land (Ḥullin 136b; SA, YD 333:1). Regarding reishit ha-gez in Eretz Yisrael today, authorities disagree whether one must give it by Torah law or only by rabbinic enactment, as with terumot and ma’asrot. ^[18]

Regarding the foreleg, cheeks, and maw, according to all authorities, in areas under Jewish sovereignty these gifts must be given by Torah law.

Outside the Land, however, authorities disagree. Many authorities maintain that the foreleg, cheeks, and maw follow the same model as reishit ha-gez and terumot and ma’asrot: since those mitzvot do not apply outside the Land, these gifts are not given there either (Rashi, Tosafot, Ha-ma’or, Rashba). Others maintain that only reishit ha-gez, which was compared to terumot and ma’asrot, does not apply outside the Land. The foreleg, cheeks, and maw, however, come from an animal and not from the soil, and therefore the mitzvot associated with them apply outside the Land as well (Rambam, MT, Laws of First Fruits 9:1). In practice, the custom outside the Land is not to give these gifts to a kohen, though some meticulous individuals made a point of doing so (SA, YD 61:21). ^[19]

17. The State of Israel Today

All areas under the sovereignty of the State of Israel have the status of gevul olei Bavel with respect to the Land-dependent mitzvot. In terms of the Land’s sanctity, the basis for the communal-national mitzvot dependent on the Land applies there by Torah law. This applies even to places that were part of gevul olei Mitzrayim – where, during the Second Temple period, these mitzvot applied only rabbinically – once they come under Jewish sovereignty.

As we learned above in section 7, the second sanctification, in the days of Ezra, sanctified the Land for all generations. The Torah states: “The Lord your God will bring you to the land that your fathers inherited, and you shall inherit it…” (Devarim 30:5). The Sages derived from this that there would be a first inheritance and a second inheritance, but not a third. In other words, the Land needed to be sanctified once in the days of Yehoshua and again in the days of Ezra, but it would never need a third sanctification. From here they learned that even after the destruction of the Second Temple, the sanctity of the Land for its mitzvot was not nullified (Yevamot 82b; MT, Laws of Terumot 1:5; above, section 7).

During the Second Temple period, only the areas settled by olei Bavel were sanctified by Torah law, since that sanctification took effect through Jewish settlement. Since there is no third sanctification, it follows that when the boundary of Jewish settlement expands, the same sanctity applies in those additional areas as well. This is what happened during the Second Temple period itself: at first, the sanctified area was limited to the region around Jerusalem, where Jewish settlement was concentrated; as settlement spread, the same sanctity applied in each place that became part of that settlement. Once an area had been sanctified through the settlement of olei Bavel, its sanctity did not lapse even after the destruction of the Temple.

So too in our time: wherever Jewish sovereignty and settlement extend, the sanctity of the Land for its mitzvot applies there as it does in gevul olei Bavel.

Even according to those who maintain that the second sanctification was nullified with the destruction of the Second Temple, areas of Eretz Yisrael under the sovereignty of the State of Israel are sanctified for the Land-dependent mitzvot by Torah law, for the State acts in the name of the Jewish people as a whole. As Rambam writes: “The Land of Israel referred to in every context means the lands conquered by a king of Israel, or by a judge, or by a prophet, with the consent of the majority of Israel; this is what is called kibbush rabim” (MT, Laws of Terumot 1:2). He writes further: “All lands that Israel conquers under a king and by the authority of a court constitute kibbush rabim, and they are like Eretz Yisrael conquered by Yehoshua in every respect” (MT, Laws of Kings and Wars 5:6). Maran Rav Kook zt”l ruled that in the absence of a king, that authority passes to the nation as a whole, and whatever is done in the name of the Jewish people has full halakhic force. The Jews living in the Land therefore represent the nation in this regard (Mishpat Kohen 144; Horayot 3a). ^[20]

Therefore, in all areas under the sovereignty of the State of Israel, one must separate terumot and ma’asrot with a berakha. One may also separate from produce grown in one such area for produce grown in another. However, one should not separate from produce grown outside Israeli sovereignty for produce grown under Israeli sovereignty, or vice versa, since according to some authorities, areas under the sovereignty of the State of Israel are subject to terumot and ma’asrot by Torah law, while areas beyond the borders of the State are subject to them only by rabbinic enactment.

When the majority of the Jewish people live in the Land, all agree that terumot and ma’asrot will apply by Torah law in all areas under Jewish sovereignty; see Peninei Halakha: Shemita Ve-yovel 11:3–4, regarding the number of Jews worldwide. ^[21]