Toward a Jewish Theory of Property Ownership

Rabbeinu Yonah Sanhedrin 9b

The correct answer is that there, in regard to terumah, since it involves death by the hands of heaven, we do not consider it death to one and compensation to another. For since death is liable to Hashem alone, we do not require payment, for everything is to Hashem. And it is [therefore] unfit to distinguish between death, which is in his hand, and payment at all.

Bava Metziah 7a

Did not Rabbi Yochanan say: If he stole and the owners did not ceded hope, neither is able to sanctify the object: this one since it does not belong to him, and this one since it is not in his possession.

Deuteronomy 15:7-11

When one of your brethren in one of your cities in your land, which God has given you, is poor, you shall not harden your heart and not withhold your hand from your poor brother. Rather you shall open your hand to him and provide him the amount of his lack, which he lacks. Watch yourself as not to let this thing be for nought, saying “the seventh year - the sh’mita year - approaches,” and worsen your eye upon your poor brother, not to give him, with God calling upon you to Him and the sin being on you. Give him and do not worsen your heart in giving him for because of this thing Hashem your God will bless you in all your deeds and in all your efforts. For the poor shall not cease from within the land; thus I command you saying “open your hand to your brother, to your destitute, and to your poor in your land.”

Tosafot Baba Batra 8b

He compelled R. Nattan – And if you say: But in chapter Kol Ha-Basar (B. Hullin 110b; see there Tosafot "Kol") it states: "Any positive commandment in which its reward [is written] by its side, the earthly court is not commanded regarding it [to compel its fulfillment]," and with regard to charity it is written: "But you shall surely open your hand unto him …" and it is written: "Because for this thing the Lord your God will bless you …" (Deuteronomy 15)? Rabbeinu Tam says that this is [referring to] verbal compulsion such as [Rav Papa's compulsion of Rav Yehuda] in chapter Na'arah She-Mitpatetah (B. Ketubot 53a). And he [Rabbeinu Tam] also responded that here they accepted that the appointed collectors of charity could compel him [but did not compel him themselves]. And according to R"i, it seems that compulsion is employed with regard to charity because it is also a negative commandment, as it is written: "You shall not harden your heart, nor shut your hand …" And according to Ritzb"a it appears that the axiom that any positive commandment in which its reward [is written] by its side, the earthly court is not commanded regarding it [to compel its fulfillment] means that they are not punished as is implied in the Jerusalem Talmud in Hamokher et Ha-Sefinah and in the case in Kol Ha-Basar (ibid) where he did not honor his father and they bound him [to apply lashes], and he said to them to leave him – its [correct] interpretation is that you are not commanded to compel him until he acts as in the rest of the positive commandments, for if he said to him "make a sukkah and a lulav" and he did not make them, they beat him until his soul departs, as is written in [chapter] Ha-Kotev (B. Ketubot 86b). [See also Tosafot B. Ketubot 49b "Akhfiyah" and Tosafot B. Hullin 110b "Kol"]

Tosafot Ketubot 49b

Rava compelled … - But if you say: How can he compel him to give charity when its reward is written by its side, as it is written: "[Because for this thing] He will bless you …", and we said in chapter Kol Basar (B.Hullin 110b): "Any positive commandment in which its reward [is written] by its side, the earthly court is not commanded regarding it [to compel its fulfillment]"? It is possible to say that it is talking about verbal compulsion. Alternatively, [one could explain] that [it is referring to a case in which] all of the residents of the city budgeted between them to give a certain amount monthly, and that is why they could compel him, as we say in the first chapter of Baba Batra (8b) that the residents of a city are permitted to enforce allocations that they have set. In addition, [one could say that] charity has two negative commandments: "You shall not harden your heart" and "You shall not shut your hand." (Deuteronomy 15)

Rashba Ketubot 49b

If one is able to pay, we coerce him to do so against his will - in other words, on the basis of tzedaka. However, we do not descend into his possessions.

Hiddushei HaRitva, Rosh Hashanah 6a

You might ask: How can we force the giving of charity when it is positive commandment in which its reward [is written] by its side, and the earthly court is not commanded regarding it [to compel its fulfillment]? And the Jerusalem Talmud (Baba Batra 5:5) answers that the court is not punished for it – i.e. they are commanded to compel [its fulfillment], but if they ignored it and did not compel [compliance], they are not punished as they are punished for all other positive commandments in which they did not compel [compliance]. And our teacher says that our Gemara does not have this reasoning. Rather any positive commandment in which its reward [is written] by its side, the earthly court is not commanded at all regarding it [to compel its fulfillment], as we say in Masekhet Hullin (110b): A particular person who did not honor his mother and father – they said to Rav Nachman to compel him." And he responded that he did not have to compel him because "any positive commandment in which its reward [is written] by its side, the earthly court is not commanded regarding it [to compel its fulfillment]." If so, how can we force a person to give charity? And our teacher answered that it is different here because the Torah revealed as is written: "and you shall do" – it is a commandment to the court to cause him to do it. We do not deduce a general rule from this for here the compulsion is not because of a commandment that falls upon him, but because he obligated himself and his property to the Temple or to the poor. Just as we force a person to pay what he owes to an individual, the strength of the individual should not be greater than the Temple …

Hiddushei HaRitva, Ketubbot 49b

R. Yom Tov Asevilli

But in a case that he is rich, we compel him – i.e. regarding the law of charity. And even though it is a positive commandment in which its reward [is written] by its side, and we established (B.Hullin 110b) that any positive commandment in which its reward [is written] by its side, the earthly court is not commanded regarding it [to compel its fulfillment], there it is referring to all of the other precepts such as honoring one's father and mother, and the like. However, with regard to charity, we do compel him because of the poverty of the needy, as it is written in the Torah: "and you shall do"[2] – it is a commandment to the court to cause him to do it. Even though that is written with reference to oaths, the Torah reveals that [it is also the case] for charity in which he expresses [a commitment] verbally, and that it is also the case in all instances of charity because of the poverty of the needy. And in Tosafot they answered that charity is different because it also says "you shall not", as it is written: "You shall not harden your heart…"

Rabbi David ben Zimra

It appears to me that the positive commandment of charity is different, since it serves a purpose for the poor, and it is akin to an obligation upon him, and we compel him to repay his debt and we descend to his property...

Responsa Mabit 1:11

For a Jew who fenced off his vineyard and did not declare it ownerless during the Shemitta year is obligated in ma’aser? After all, the Merciful One rendered his field ownerless for the poor and wealthy...

Responsa Avkat Rochel 24

For one can maintain in this regard that yes, indeed, this field is obligated. For even though the Torah declared that it must be ownerless, since he did not declare it such, the Torah did not render the field ownerless...