Siman 236

In ancient times, when there were nations who oppressed Israel and sought to kill them until one would ransom himself from the hand of the extortionist with his field or his house so that they would leave him alive, the sages, of blessed memory, enacted [Gittin 58b] that when the extortionist wishes to sell it, throughout twelve months, if the owner has the ability to purchase it from the extortionist, it is forbidden for another to take it; and if he purchased it, he returns it to the owner. After twelve months from when he extorted it, it is a sign that the owner has nearly despaired of it, since he left it in his hand for such a long time and did not cry out against him [Rashi]. Or even within twelve months, if the owner does not have the ability to take it, the sages, of blessed memory, enacted that whoever wishes is permitted to purchase it, and whoever is first and purchases from the oppressor merits it, provided that he gives the original owner a quarter of the land or a third of the money that he paid. For thus the sages, of blessed memory, estimated: that the oppressor sells it cheaply, at less than a quarter of its value or close to this; since the land is not his, he sells it cheaply. And this quarter belongs to the owner, for it is because it is his that he sells it cheaply, and why should the purchaser merit this? Is it not enough that the oppressor robbed him, but that he should also be robbed by the purchaser? And one does not calculate with the purchaser whether he bought it cheaply or dearly, for the sages, of blessed memory, did not differentiate in their enactment [Sma]. And if he did not give it, behold a quarter portion is like robbery in his hand.

The Tur wrote: If one purchased it from a non-Jew within twelve months, if the owners desire, he must return it to them, and they shall give him as much as he paid to the extortionist; and if they desire, they may leave it in his hand, and he shall give them a third of what he gave to the extortionist. Thus far his words. And there are those who wished to infer from his words that he holds that even if it was not within the power of the owners to purchase it, nevertheless, since he purchased it within twelve months, the owners can remove him forever; and he disagrees with the Rambam, who made a distinction in this, as I wrote in section 1. But this is not clear, for it is explained in the Gemara that when it is not within the power of the owners to purchase it, one is permitted to purchase it. And logic dictates this, for why should they block the way when the owners suffer no loss by this? And the Tur is referring to a case ex post facto, regarding one who transgressed and purchased it at a time when it was within the power of the owners to purchase it, that the owners can remove it from his hand when they have the power. And there is proof from our teacher, the Beit Yosef, who transcribed the words of the Rambam and the words of the Tur; hear from this that they do not disagree. And some say further that even if the buyer purchased it within twelve months, the owners do not have the right to take it from him except until the duration of twelve months from the time of the robbery; but after this time, he has already despaired, and he has only a quarter. And these matters are a fortiori, for behold, even when it is still with the oppressor, we say that since he was silent for twelve months, he presumably despaired; all the more so when it is in the hand of the buyer and he was silent, for he certainly despaired of it [Netivot HaMishpat].

When he claims the third of the value from him, or within twelve months when he takes it from him and returns his money to him, and he does not believe him regarding how much he purchased it for, he shall swear to him how much he purchased it for, and he gives him the money or takes a third from him. And if there is a denial between them, where the owners say that they had the ability to take it from the oppressor within twelve months and the buyer preceded them unlawfully, and the buyer says that they did not have the power to take it and he purchased it permissibly and he is not obligated to return it to him but only to give him a third, it is upon the owners to bring proof, and the land is in the presumption of the buyer. And even though in every place land stands in the presumption of the original owners, it is different here, for it has already left him and this one purchased it from the oppressor, and therefore he is considered the possessor.

Even within twelve months, if he initially purchased it with the permission of the owners from the oppressor—meaning that before he spoke with the oppressor, he spoke with the owners and they gave him permission to purchase—the owners cannot say that he was forced to agree due to fear of the extortionist. Since he did not speak with the extortionist beforehand, his purchase is valid. However, if he initially purchased it from the extortionist and afterwards took permission from the owners, his purchase is void, for he was forced to do so due to fear, unless the owners specified in the deed that they provided him with a guarantee of indemnity (achrayut). For it is certain that the extortionist would not have oppressed him to such an extent that he would write him a guarantee; rather, he certainly sold it to him with complete will. Without a guarantee, even the deed of the landlord or the owner of the field is not effective, for this too he did due to fear. Likewise, if there are witnesses or the owners admitted that they received money from the purchaser, it is a complete sale and he sold it to him of his own will, for if not so, he would have issued a protest (moda'a). But if he admitted then before witnesses that he received money and now says that he did not receive any at all and was forced to admit due to fear, we listen to him [Sma], and we do not obligate him in an oath regarding this, for there is no one who contradicts him with certainty. This applies specifically when he admitted that he received money from the extortionist; but regarding an admission that he received from the Israelite purchaser, if the admission was not in the presence of the extortionist, his admission is an admission. And if the purchaser says, "I gave him money," and the owners contradict him and there are no witnesses here, he swears a hesset oath [as mentioned above, and the difficulty of the Netivot HaMishpat is settled; and examine this closely].

If one purchased it from the oppressor and it remained in his possession for three years, and afterwards he sold it to another, and the owners came and claimed the third from the third party, they have no claim against the second purchaser. For we plead on behalf of the purchaser that presumably the first one gave them what was due to them according to the law. And the same law applies if it remained for three years in the possession of the second, even if it did not remain in the possession of the first except for one day or even one hour; we plead on behalf of the second that the first settled with him. However, for the first one, we do not plead on his behalf even if it remained in his possession for three years, since he himself does not claim so, but rather claims that he purchased it from the oppressor and held it for three years; this constitutes a chazakah that is not accompanied by a claim. But for the second, we do plead, since there are years of chazakah in his possession or in the possession of the first. And there are those who say that this is specifically when the first purchaser is an Israelite, then we certainly plead on behalf of the second that presumably the first compensated him; but if the first is not an Israelite and sold it to an Israelite, his law is as if this one purchased it from the oppressor himself, for who would compel the non-Israelite to pay the third? Behold, this is a rabbinic enactment, and certainly he did not pay. And just as we plead for a second purchaser, so too we plead for the heirs of the first purchaser, that when he purchased it and it remained in his possession for three years and he died and bequeathed it to his sons, we plead that presumably their father paid the third. For we have a great principle that we plead for a purchaser and for an heir. And this is specifically when there is a chazakah of three years, but without this we do not plead, for the primary reason is because with a chazakah of three years the first would have been believed to say "I gave you the third" with a migo of "I purchased it from you and consumed the years of chazakah." And even though regarding a purchaser from a total robber he is not believed in such a case, as written in siman 149, it is different there because he committed a prohibition by purchasing from a robber, therefore he is not believed even with a migo; this is not so regarding an oppressor, where he purchased it permissibly according to the enactment of the sages to give a third, he is believed with a migo. But without a chazakah of three years, where the first also would not have been believed, how can we plead for his heirs and the purchaser who bought it from him a matter that he himself would not have been able to claim?

All that has been explained is the law of sikrikon as explained in the Gemara [ibid. Gittin], and some say that this only applies when the owners gave the land to the extortioner so that he would not kill them, and not that the extortioner seized the land on his own, but rather that the extortioner sought to kill him and the owners said to him, "Take this land and leave us," and the extortioner agreed to this, for this is the expression of sikrikon: "Take the land and leave us" [Rashi there]. However, an extortioner who took land from an Israelite through robbery is not subject to all the laws that have been explained, and even if it remained for a long time in the hand of the extortioner, it always remains in the domain of the Israelite, and whoever purchased it from the extortioner returns it to the owners for free, and the money he gave to the extortioner he has lost. However, if the victim of the robbery would have needed to incur expenses to remove it from the hand of the extortioner, he must give them to the purchaser, and they shall assess this according to the estimation of experts. And so our early teachers ruled: if the Israelite is the extortioner, even if he gave him the land of his own will, it also does not have this law. And there was an incident in the days of the early ones involving Israelites who pressured their fellows with seizure and threatened them to kill them, and out of fear they requested the extortioners to take the land from them to leave them alive, and our teachers ruled that this does not have the law of sikrikon, for Israelites are not shedders of blood and also the fear of the government is upon them, and it is as if it was not in their power to kill them.

And so too the reverse: a powerful idolater who seized the property of an Israelite and descended into his field on account of a debt that he owed him, or on account of damage that this Israelite caused him, or on account of him causing a loss of his money, and after he seized the field through violence he sold it to another Israelite—the owners are unable to remove it from the hand of the purchaser since the extortioner seized it with a correct claim. In what case does this apply? When the owners admitted that the idolater claims the truth, that a debt is owed to him or that he caused him damage. And the Rosh ruled in this matter that the owners remove it from the hand of the purchaser even if it was in the hand of the extortioner for more than twelve months, and he gives the purchaser his money that he paid for it; for specifically regarding a sikrikon, where the Israelite is handed over to him for killing and he ransomed his soul with the field, in that case we say correctly that since he delayed it in his hand for such a long time, he despaired of it. But one who comes on account of a debt or on account of damage, even if it is true that the Israelite is liable to him, nevertheless he only has a claim of money against him and not to take the land through violence. And even according to the first opinion, this is only in a place where according to their laws the Israelite was unable to receive the land back from the extortioner and pay him his debt, for then the Israelite purchaser has all the rights of the idolater who sold it to him; but if according to their laws he may remove it from the extortioner, his sale is nothing. So wrote one of the great authorities. And it seems to me that in such a case even the Rosh does not disagree, and perhaps in truth they do not disagree in the law, and because of this the opinion of the Rosh was not brought in the Shulchan Aruch. And know that what was explained in this section is what the sages, of blessed memory, said [ibid.]: one who comes on account of a debt or on account of seizure has no law of sikrikon.

And if the owners do not admit to the extortionist that a debt is owed to him or that he caused him damage, the sale of the extortionist is nothing, and it returns to the owners for free. In what case does this apply? When there was no place of judgment from the king. But if there was a place of judgment in their courts where he could have compelled the extortionist to judgment, and the courts would have obligated the extortionist to return the field to the Israelite, and they did not sue him, they cannot remove it from the hand of the one who purchased it from the extortionist, even though they do not admit to the debt or the damage and also there are no witnesses to this. For the purchaser says to the owners: According to your words, why did you not sue him before the courts? And since you did not sue him, you waived it to him. And this is what our sages, of blessed memory, said [ibid.]: The law of anparut does not apply in Babylonia because there are courts from the king of Persia and they did not sue. And even though regarding sikrikon even in such a case it is not effective, this is because the fear of killing is upon him and he is afraid to sue the extortionist; but in a case coming due to a debt, where he is not afraid of killing, he should have sued him in their laws.

An extortionist who does not have the power of life and death over the Israelite, but rather came upon the Israelite indirectly through robbery and violence and took his field, and it is a place where there are no courts through which he would have the ability to remove it from the extortionist, and the extortionist sold it to another Israelite—he must return it to the owners even if it remained in the hand of the extortionist for many years. Since the extortionist does not come by way of a claim of debt, through what did he acquire it? And even though the Israelite did not have the ability to remove it from his hand, nevertheless he did not despair of his field, for violent men are prone to fall. Nevertheless, the buyer does not need to return it to him for free; rather, they assess how much the owner of the field would have wanted to give the extortionist so that he would return his field to him, and that is what he gives to the buyer, even though the buyer gave much more. And it is not similar to one who chases a lion away from the property of his fellow, where he returns it to him for free, for here the loss was certain, whereas with one who chases a lion it is not so. Therefore, he must pay him everything he would have paid the extortionist [see Bava Kamma 58a, Tosafot s.v. "Ei"] since the buyer gave money; and regarding one who chases a lion himself, when the loss is almost certain and he incurred expenses, he must pay him his expenses that he was forced into. And if the buyer bought it from the extortionist for a small amount, the owners do not need to give him more, even though if he himself had wanted to redeem it from the hand of the extortionist it would have cost him more. And if the extortionist gave it to him for free, he must return it to the owners for free, for how can that person do business with the stolen property of his fellow? And if the owners would not have removed it from the extortionist even for a large sum of money, and the buyer gave a large sum of money for it, the owners must pay him everything he gave, even up to its full value, and even more than its value if the owners desire it [Sma]. And all these distinctions apply when the intent of the buyer was to buy it for himself, but if all his labor was to rescue it for the owners, the owners must pay him everything he spent on this without any difference whether he could have rescued it for less or more [Shach]. And if while the land was in the hand of the buyer he built some structure upon it or made some improvement, his law is like one who descends into the field of another without permission, as was explained in siman 375, for who compelled him to do this? And all this applies in a place where there are no courts, but in a place where there are courts and he remained silent, he certainly waived his right, and the buyer returns nothing to him even if the extortionist gave it to him as a gift, for behold he declared it ownerless of his own will since he remained silent [Sma]. This is not so regarding a sikrikon, where he was afraid to cry out against the extortionist in the courts because of the fear of being killed. Therefore, in all our provinces, all the laws that have been explained have no place, for in every place there are judges and officers of the king, and no extortionist has the power to steal lands.

All the matters that have been explained are only regarding lands, for the owners do not despair of them; but an extortionist who stole movable objects, since he is able to hide them, the owners despair of them, and the purchaser from the extortionist is not required to return them to the owners. And this is specifically when it is known that they despaired, for if not so, ordinary theft does not involve despair, as will be explained in siman 361. However, when it is known that they despaired, the purchaser acquired them through despair and a change of domain. Nevertheless, if he stole it from the extortionist, this is not a change of domain, as is written there [Netivot HaMishpat]. And it is possible that regarding an extortionist, even ordinarily one despairs. And that which was explained there, that ordinary theft is not despair, that is regarding an Israelite robber. Furthermore, it is possible to say that this person who took it from the extortionist acquired it even though there is no change of domain, for it is similar to a lost object which is acquired through despair alone because it came into his hand permissibly [Bava Kamma 66a], and here too, when he took it from the extortionist, it came into his hand permissibly [and the words of the Shach are well-settled]. And all this is regarding objects suitable for the whole world, but books, tefillin, mezuzot, and the like, which are only suitable for an Israelite, he does not despair of them, for he knows that he will only sell them to an Israelite, and he will pay him what he gave to the extortionist.

Our teacher, the Rema, wrote that all this applies to an extortionist who has no legal authority over him, but a minister or ruler who became angry with his servants or ministers and took a house from one of them, the law of the kingdom is law, and the purchaser is not obligated to give the owners anything. Thus far his words. And this is specifically when he transgressed against him, for then he takes it by law; and see what I wrote in siman 363 and 369.

An Israelite who mortgaged land to a gentile and set a time to redeem it, and did not redeem it, and the gentile sold it to another—his sale is valid, for he sold it according to the law. And this is specifically when he sold it for its value, but if he sold it for less than its value, even by any amount, it is retracted. For since the Israelite did not formally transfer the land to the gentile such that upon the arrival of the time it would be transferred to him, and presumably his intention was that he should sell it, he is like his agent, and an agent who was defrauded retracts even by any amount [Sma]. And even though there is no agency for a gentile, nevertheless, he is no better than an agent. Therefore, if he said to him explicitly that if he does not redeem it by such a time it shall be transferred to him, the gentile may sell it for whatever price he desires [see Sma].