In the Gemara it brings down the case of where a man has his property seized because of unpaid debts. Now the question is, if the man whose property was seized shows up with the money owed can he redeem the land? The answer is yes and the Talmud gives two answers for this. The first is a verse in Devarim, "You shall do that which is right and good." (Deuteronomy 6:18) The other reasoning given is that the lender desires money. After all if he wanted land, then why couldn't he have purchased it? He entered into this transaction expecting money and received land. Ergo since his preference is for money, we allow the redemption.
Now this ruling is qualified in that if there is a sale, a gift, or the property is inherited this right of redemption does not transfer. Naturally the first question is, is this logical? Afterall, the rights and responsibilities that are attached to a land transfer indefinitely. This even applies to the lien itself, no matter how many times land I sold, it retains the lien. However, the Talmud tells us that this is not so. The reasoning is that the two reasonings here do not apply. The duty of kindness doesn't apply to those who are not involved in the transaction in the first place. In addition, the other parties have entered this transaction to acquire land rather than money. Ergo, the borrower cannot redeem the land.
The Gemara says if you seize land because of the defaulting of debts, then it is seized again, the original owner may redeem it from the third party forever. However, the above cases of sale, gift, or inheritence still erase the duty to redeem.
The Tur in the name of the Rosh peh siman aleph of his teshuvos says this is only in the case where there are multiple heirs to the estate. However, in the case of one inheritor, because he did not choose land and it merely fell to him, the original owner may redeem it. This is because there is a presumption of a desire of liquidity within halachah
Rabbeinu Yeruchum in banosiv vav ches aleph kof beis ayin gimel says in the name of tosofos that if a person is distributing on his death bed, then the land cannot be redeemed but if it is automatically, then it can be redeemed. This is because the person when he is distributing the land is presumed to desire that land itself go to the specific heir rather then for value itself to pass to his heirs where upon cash would be preferable due to the principle of liquidity preference.
The Rosh accepts the reasoning of Rabbeinu Yeruchum. Tosofos rejects the reasoning of both. Later, the Gemara asks this case regarding a husband inheriting his wife. The answer is that inheritence of one's wife is treated as the Why does the Gemara say this as a buyer is an inheritor? Tosofos says that the Gemara is only going on the case of where the husband wants to redeem rather than when the land of the wife is redeemed. Alternatively, this is a proof that Tosofos does not accept the principle of liquidity and because the husband was not involved in the transaction he has no duty of kindness.
Thus, we see there is a machlokes Rishonim on which of these reasons is the ikkar for these rulings. The Rif, Rambam, Beis Yoseph, and Tosofos all support the reasoning behind this halachah is a duty of kindness. Therefore there is no transference of the duty. But what about where property is seized? This is difference between the person who the land has been seized from second can redeem where upon the first can redeem so as proper in halachah if a owes b and b owes c then a and c can leave b out and make a deal. Therefore, because the duty of kindness applies to b, a and c can leave b out of the deal. On the other hand, the Rosh and Rabbeinu Yeruchum hold that the primary reasoning is the principle of liquidity. What is the practical difference between these two opinions? When it comes to inheritance. The rishonim that hold that the ikkar is duty of kindness, this duty of kindness does not transfer at all. However, if the reason is the principle of liquidity the Rosh and Rabbeinu Yeruchum qualify the case. The Rosh on Lamed Heh and Rabbeinu Yeruchum both state that the case of inheritance is only where the land is given as an inheritance, which is when on a death bed the land is given. However, if it falls automatically, then it can be redeemed because then the principle of liquidity applies. The Rosh in his teshuvos as brought down by the tur qualifies this additionally in that this is only the case where there is more then one inheritor. Where there is only one inheritor then it may be redeemed. This is because by multiple inheritors, each inheritor chooses what they desire or it is allocated to them by the desire of the deseaced. As such, we cannot say that they desire the money more then land, after all, they could have chosen to take monetary assets rather than land. But with one inheritor, he didn't choose what to inherit and what not to inherit. Therefore, this reasoning doesn't apply.
This distinction is also valid in the following three cases. If the borrower is a goi who says I will borrow on condition we follow the rulings of Beis Din. And his land was sized. Do we force a redemption or not? According to duty of kindness being the ikkar, the answer is an obvious no as the verse Do what is right and good is qualified that you may go in and take over the land that Hashem promised to your ancestors. Therefore, this principle only applies to those descended from those ancestors namely Abraham, Isaac, and Jacob as well as converts. However, if the ikkar is the principle of liquidity it is not so obvious. The Rosh and Rabbeinu Yeruchum both have cases where we still redeem where duty of kindness isn't applicable so perhaps, they would still say we redeem.
In addition, what if the lender declares the property hefker and then reclaims it. If the ikkar is duty of kindness then this is meaningless. The lender is still the owner and therefore has a duty of kindness. However, by declaring it hefker and reclaiming it, the lender demonstrates that he desires the land more then money. Though, it seems to me that in this case we would still force a redemption.
Finally, what if after c seizes the land from b, b then purchases it back. If he has a duty of kindness then this has not been eliminated and we force the redemption. If however, the ikkar is that he desires money more then it is obvious that it may not be redeemed as he has demonstrated that he prefers land to money.
The final halachah is according to those that say the ikkar is that we have a duty of kindness.
Posted 3/24/2025
Edited last 3/30/2025