Halakhah su Deuteronomio 29:27

Avnei Nezer, Yoreh De'ah, II, no. 454, secs. 5-7 and no. 457, sec. 5, points to Rambam's omission of the commandment concerning construction of the ark and its cover—an omission for which Rambam was taken to task by Ramban. Despite the clear nature of the divine command to fashion such appurtenances, Rambam does not enumerate their construction as constituting separate and distinct mizvot because he views their construction as being subsumed under the commandment to construct the Temple. Stretching the parallelism a bit, Avnei Nezer argues that Rambam does not enumerate settlement in Erez Yisra'el as a separate mizvah because he regards it as subsumed under the commandment to annihilate the Seven Nations indigenous to the Land of Canaan. [For a critique of this analogy see R. Israel Zev Mintzberg, Yishuv Erez Yisra'el (Jerusalem, 5690), pp. 32-33.] However, subsequently, in the same responsum, secs. 23-27, Avnei Nezer himself queries, "But how can there be a mizvah in the time of exile [regarding which time] it is written in the Torah 'and the Lord … cast them into another land' (Deut. 29:27)?" Avnei Nezer, secs. 24-27, then develops the interesting thesis that only such persons who are deserving of redemption are commanded to dwell in Erez Yisra'el. Even more astonishing is Avnei Nezer's further statement, sec. 26, that one who is not so deserving but who nevertheless makes aliyah is accounted as if he continues to reside in the Diaspora and has fulfilled no mizvah thereby. However, Avnei Nezer, secs. 39 and 62, concludes with the statement that, his own opinion notwithstanding, the position of rabbinic decisors is that settlement in Israel is a mizvah. Whether this mizvah is biblical or rabbinic in nature is contingent upon the conflicting talmudic views with regard to whether the biblical sanctity engendered by Ezra's settlement is eternal in nature or whether it, too, lapsed (as did Joshua's earlier sanctification) upon the destruction of the Second Temple. Nevertheless, Avnei Nezer, sec. 52, asserts that since subsequent to the "three oaths" there is no longer an obligation upon the entire community to settle in the Land of Israel, there can therefore be no obligation upon any individual to settle in Israel. In sec. 56 he adds that if all Jews were to be granted permission to immigrate to Israel, settlement in the Land of Israel would become obligatory provided that it be possible to settle among righteous people.

In light of the "three oaths" described in Ketubot 111a, this position does not seem to be defensible other than with regard to a defensive war for retention of already acquired territory. The opinion of these scholars notwithstanding, the very fact that an oath not to reconquer the Land of Israel by force as well as the biblical verse "and the Lord rooted them out of their land in anger and in wrath and in great indignation and cast them into another land, as it is this day" (Deut. 29:27), certainly make it logical to assume that during the period of exile God has relieved the Jewish people from this obligation, at least insofar as conquest and retention of the land is concerned. Were an obligation predicated upon the commandment "and you shall inherit the land" still to exist with regard to retention of territory already acquired, it is difficult to comprehend the halakhic basis and justification of exacting an oath not to retake the land by force.