Halakhah su Deuteronomio 7:2

The Mishnah (Avodah Zarah 19b) prohibits the sale of Israeli real estate to non-Jews, providing another possible reason to prohibit ceding land. This is based on the Torah's words, "Lo techaneim" (Devarim 7:2). The Gemara (Avodah Zarah 20a) interprets these words as "lo titein lahem chanayah bakarka" ("Do not give them permanent dwelling in the Land"). Some prohibit giving land to non-Jews even to save lives (see Teshuvot Dvar Yehoshua 2:48), while others argue that this prohibition may be ignored if lives would thereby be saved (see Rav Ovadia Yosef, Techumin 10:34-47). Rav Ovadia also points to the minority of authorities, such as the Bach (Choshen Mishpat 249:2), who claim that lo techaneim does not apply to non-Jews who do not worship idols, such as Muslims.

It may, of course, be objected that these considerations apply only to the initiation of armed conflict for the purpose of capturing or liberating sanctified territory. The stipulations requiring a king, Sanhedrin and urim ve-tumim certainly do not pertain to defensive war undertaken for the purpose of preserving Jewish lives.¹⁰This point is amplified in Chapter XI of this book. See pp. above, 274f. Neither, it may be argued, do they apply to military activity undertaken for the purpose of retaining territory already reconquered, particularly if the territory in question has been liberated by means that are consistent with the provisions of Jewish law. It should also be noted that it can—and has—been argued that surrender of territories is an infraction of the prohibition "lo teḥanem" (Deuteronomy 7:2), which, in talmudic exegesis, is rendered as "lo titen lahem ḥaniyahn be-karka—you shall not grant them permanent encampment."¹¹See Avodah Zarah 19b. This talmudic dictum is formulated in association with a prohibition against conveying real property within the boundaries of the Land of Israel to a non-Jew. Yet a literal application of the terminology in which that prohibition is formulated would render it applicable to any action that would tend permanently to confirm non-Jewish residence in the Land of Israel. Sale of real estate would thus be but one example of activity having that effect; obviously, transfer of political sovereignty would be even more instrumental in engendering permanence of non-Jewish residence.¹²See Contemporary Halakhic Problems, I, 27-32, and II, 212-220.

The king may first wage only a milḥemet mizvah. What is a milḥemet mizvah? It is the war against the Seven Nations,¹⁰The obligation to annihilate the Seven Nations assumes two distinct forms. A communal obligation to engage in war against those nations is here posited by Rambam, Hilkhot Melakhim 5:1, and by Sefer ha-Ḥinnukh, no. 425. A personal obligation to eliminate the members of those nations is formulated by Rambam, Hilkhot Melakhim 5:4, and by Sefer ha-Ḥinnukh, no. 425.
Various aspects of the commandment may be explained on the basis of this two-fold formulation. Sefer ha-Ḥinnukh declares that the obligation to annihilate the Seven Nations is incumbent upon both males and females equally and also expresses the view that the obligation is suspended when fulfillment would entail self-endangerment. Minḥat Ḥinnukh notes two apparent contradictions: (1) Sefer ha-Ḥinnukh, no. 525 and no. 603, in contradistinction to Rambam, Sefer ha-Miẓvot, introduction, shoresh 14, rules that women are exempt from participation in all wars including milḥamot miẓvah. (2) The waging of war, almost by definition, entails self-endangerment. Hence a commandment to wage war must be understood as explicitly requiring the placing of one’s life at risk in fulfilling that obligation.
These problems are resolved if it is understood that the obligation is two-fold in nature: a communal obligation to wage war against the Seven Nations and a personal obligation to eliminate the members of those nations. Although women are exempt from conscription for purposes of engaging in communal warfare, they are required to eliminate members of the Seven Nations by virtue of their personal obligation. Conversely, in the absence of a state of war declared by the sovereign, no individual is obligated to endanger his life in an attempt to discharge his personal obligations with regard to eradication of the Seven Nations. See R. Moshe Sternbuch, Mo’adim u-Zemanim, II, no. 164; R. Judah Gershuni, Mishpat ha-Melukhah, Hilkhot Melakhim 5:2; and R. Shlomoh Goren, Torat ha-Mo‘adim, (Tel Aviv, 5714), pp. 180f.
One significant difficulty remains. The biblical source of the commandment to annihilate the Seven Nations is the injunction “you shall utterly destroy them” (Deuteronomy 7:2 and Deuteronomy 20:7). This biblical passage might well be interpreted as establishing either a communal or a personal obligation; it is difficult to deduce a two-fold obligation from a single phrase.
In order to resolve this difficulty, it should first be noted that in delineating a milḥemet miẓvah the Gemara, Sotah 44b, speaks of the “wars of Joshua to conquer,” i.e., war for the conquest of the land of Canaan. Rambam, Hilkhot Melakhim 5:1, speaks, not of conquest of the land of Canaan, but of war against the Seven Nations. Of course, conquest of the land of Canaan involved war against the indigenous inhabitants, viz., the Seven Nations. However, Rambam’s substitution of his own terminology for that of the Gemara is significant in that it places negative emphasis upon such war as serving to destroy the Seven Nations rather than upon its positive aspect as a war for the conquest of the Land of Israel.
Conquest of the land of Canaan as an end in itself, as well as settlement in the Land of Israel, is deemed by Ramban to be mandated by the verse “And you shall drive out the inhabitants of the land and dwell therein” (Numbers 33:53). See Ramban, Commentary on the Bible, ad loc., and idem, Sefer ha-Miẓvot, Miẓvot aseh, addenda, no. 4. Rambam, as is well known, fails to record any positive commandment predicated upon that verse. Hence it may be assumed that, for Rambam, neither settlement in the land of Israel nor conquest of the territory so designated constitutes a miẓvah. (See, however, Megillat Esther, Sefer ha-Miẓvot, Miẓvot aseh, addenda, no. 4, who asserts that Rambam understands this passage as establishing a commandment to conquer the land, but that this commandment was binding only upon the generation of the original conquest rather than for posterity.) Indeed, Rashi understands the verse as constituting only prudent counsel, viz., in order to assure permanence of settlement it is necessary first to drive out the inhabitants. See Contemporary Halakhic Problems, II, 193-99. It may be suggested that Rambam views the first clause of this passage as a commandment or, more precisely, as an amplification of the commandment recorded elsewhere, viz., “you shall utterly destroy them.” The latter passage establishes a personal obligation with regard to annihilation of the Seven Nations. That obligation is quite independent of considerations of settlement. Sefer ha-Ḥinnukh explains that eradication of paganism is the rationale underlying the commandment “you shall utterly destroy them.” Indeed, the commandment is presented in precisely that context both in Deuteronomy 7 and in Deuteronomy 20. “You shall drive out the inhabitants of the land and dwell therein” may well have been understood by Rambam as a reiteration of the commandment recorded in Deuteronomy 7:2 and Deuteronomy 20:7 and hence this injuction is not enumerated by Rambam as a new commandment. However, in Numbers 33:53 an entirely different telos is presented, viz., “and dwell therein:” Annihilation of the Seven Nations makes permanence of settlement a greater likelihood. Since, according to Rambam, residence in the Land of Israel is not a personal obligation, establishment of a permanent settlement must be a matter of communal concern. Hence “You shall drive out the inhabitants of the land” (in contradistinction to “you shall utterly destroy them”) must also be addressed to the community in general rather than to individuals qua individuals. Thus the communal obligation to wage war against the Seven Nations is derived from Numbers 33:53 but is not deemed by Rambam to be a distinct miẓvah. Rather, he regards it as merely supplementary to the general commandment formulated in Deuteronomy 7:2 and Deuteronomy 20:7 that serves to establish a personal obligation. the war against Amalek and [a war] to deliver Israel from an enemy who has attacked them (she-ba aleihem). Thereafter he may wage a milḥemet reshut, which is a war against other people in order to enlarge the borders of Israel and to enhance his greatness and prestige.¹¹Rashi, Sotah 44b, describes the “wars of the House of David” as wars “which he fought in Aram Zoba in order to annex it to the Land of Israel and against others of his neighbors in order that they bring him tribute and servants to do taskwork.” A literal reading of a narrative reported in Berakhot 3b and Sanhedrin 16a would yield the inference that a milḥemet reshut may be undertaken for economic reasons; see, however, below, notes 42 and 51.

He prohibited us from making a covenant with the heretics - meaning, with the seven nations (of Canaan) - and to allow them to be secure. And that is His, may He be exalted, saying, "and you shall not make a covenant with them" (Deuteronomy 7:2). And we have already explained in Positive Commandment 187 that war with the seven nations, and everything that comes with them, is appropriate to list [as a commandment]; and that it is not in the way of the commandments that are not practiced for [all] generations. (See Parashat Vaetchanan; Mishneh Torah, Foreign Worship and Customs of the Nations 10.)

The Mishnah, Avodah Zarah 19b, expressly forbids the sale of real estate in Israel to non-Jews. The Gemara explains that this prohibition is derived from the biblical injunction "lo teḥanem," (Deut. 7:2), which, according to rabbinic exegesis, is to be understood as meaning "You shall not grant them permanent encampment (ḥaniyah)." Rambam, Hilkhot Avodah Zarah 10:4, amplifies this statement with the explanation, "For if they will not own land, their inhabitance will be temporary." Ramban, in his commentary on the Bible, Leviticus 25:23, finds that conveyance of land to a non-Jew involves yet another transgression. Scripture provides that all fields revert to their original owners in the jubilee year, and explicitly commands, "and the land shall not be sold in perpetuity." Ramban understands this verse as banning the sale of land to a non-Jew since the latter would retain permanent possession and not return the land to its original owner in the jubilee year. The verse concludes with the explanation "for the land is Mine," indicating that in actuality the land is the possession of God and that it is only by virtue of His largesse that man is permitted to dwell in, and derive enjoyment from, his terrestrial habitat. Accordingly, this passage gives expression to the divine will that Israel be the homeland of the Jewish people and that they not be displaced by foreign land-owners. According to Ramban, the purchase of land in Israel from a non-Jew constitutes a fulfillment of the commandment "You shall give a redemption unto the land" (Lev. 25:24). Rabbi Bakshi-Duran argues that, according to Ramban, there is yet another source militating against the sale of dwellings or fields in Israel to a non-Jew. According to Ramban, the verse "And you shall inherit the land and dwell therein" (Deut. 11:31) is not simply a prophetic prognostication or a divine promise but constitutes a positive commandment. Ramban comments, "We have been commanded to inhabit the land which God gave to our forefathers, Abraham, Isaac, and Jacob, that we not allow it to remain in the possession of any other nation or allow it to be desolate." Rabbi Bakshi-Duran understands the second clause in Ramban's comment as referring not to the establishment of political sovereignty but to actual ownership of territory. Thus any act which results in a non-Jew acquiring title to any portion of the land of Israel constitutes a violation of the commandment concerning settlement of Erez Yisra'el.

It is from the roots of this commandment to destroy idolatry and all of those who serve it from the world. And these seven nations were the center of idolatry and its first foundation; and because of this, they were uprooted from their land. And we were commanded to uproot them and to destroy their memory forever. And it is as it is written about them in the Torah (Deuteronomy 7:2), "and you shall surely annihilate them" - and that is a positive commandment in the Order of Ve'etchanan. And there I will write at length about this commandment, with God's help, and tell the reason for why these bad nations are in the world and that this commandment is included in the commandments that are practiced. And from the warning about them, we understand a warning not to make a covenant with any worshipers of idolatry. But there is a distinction between the seven nations and the other peoples that are worshipers of idolatry (Gittin 45a); as there is no commandment to kill the other peoples if they do not fight with us, but these seven nations, we are commanded to kill in any place that we are able to - unless they abandon their idolatry. And the matter is because they were the center of idolatry and its first foundation, as I have written. And anyone who has one of them come to his hand and he can kill him without danger, but does not [do so], has transgressed a negative commandment. And that which we said that we do not kill worshipers of idolatry when they are not fighting with us, is specifically [regarding] worshipers of idolatry from the [other] peoples. However it is a commandment upon us to kill an Israelite that worships idolatry - such as the sectarians, the apostates and the heretics - because they oppose Israel. And it is better that a thousand like these be destroyed than one proper Israelite.

The commandment of killing the seven nations: To kill the seven nations that held our land before we conquered it from them - and they are the Canaanites, the Amorites, etc. - and to destroy them in any place we find them, as it is stated (Deuteronomy 7:2), "you shall totally destroy them." And this commandment is repeated in the Order of Shoftim, as it is stated (Deuteronomy 20:17), "But you shall totally destroy them, the Hittite, the Amorite, etc."

To not grace and to have mercy on an idolater: That we should not forgive towards idolaters and that nothing of theirs should be straight in our eyes. [That is] to say that we should distance from our thoughts and not bring up to our mouths that there should be anything of benefit from one who worships idolatry, and that he not bring up grace in our eyes in any matter; to the point that our Rabbis, may their memory be blessed, said (Avodah Zarah 7a) that it is forbidden to say, "How beautiful is that gentile," or "How fine and pleasant is he." And about this is it stated (Deuteronomy 7:2), "and you shall not grace them." And the explanation of this comes about this, [that it is to say,] do not give them grace, like the matter that we have said. And there are some of our Rabbis that learned from, "you shall not grace them," you shall not give them free presents - and it is all one root. And in Talmud Yerushalmi Avodah Zarah 1:9, they said, "'You shall not grace them' - you shall not give them grace [is] a negative commandment."