Mishneh Torah, Sales 22-24

Hook

We stand at a crossroads, wrestling with the meaning of hope and the weight of history. For generations, the dream of Zion, of a Jewish return to our ancestral homeland, was davar shelo ba la'olam — "something that has not yet come into existence." It was an aspiration, a prayer, a yearning etched into the very soul of a people. Then, against all odds, it materialized. The State of Israel was born, a testament to an audacious, millennia-old promise brought into tangible reality.

But the very act of bringing something "not yet in existence" into being is fraught with complexity. It forces us to confront the tension between the ideal and the real, between the purity of a dream and the messy realities of land, people, and power. How do we make binding commitments about a future that is still largely unformed? How do we balance the deep, almost covenantal, intent of a people with the immediate, pragmatic needs of state-building, often in a hostile environment? And crucially, how do we ensure justice and responsibility when our "acquisition" of a future also impacts the present realities of others?

This isn't a uniquely Israeli dilemma. Every nation, every community, every individual embarking on a significant project grapples with the gap between vision and execution. But for Israel, a nation born of both ancient prophecy and modern necessity, these questions resonate with particular intensity. The legal principles that govern the "acquisition" of that which is yet to come, as explored by Maimonides, offer a profound lens through which to examine these foundational tensions. They challenge us to consider not just what we acquire, but how, and for whom, reminding us that true hope is not merely about achieving a goal, but about the ongoing, ethical cultivation of the future we wish to inhabit. It’s about building with a strong spine of conviction, yet an open heart for the complexities inherent in shaping a shared tomorrow.

Text Snapshot

From Mishneh Torah, Sales 22-24:

A person cannot transfer ownership over an article that has not yet come into existence. This applies with regard to a sale, with regard to a present or with regard to the disposition of an oral will.

When, however, a person sells produce at the market price, although the seller was not in possession of the type of produce, the seller is obligated to purchase the amount of produce he pledged, and give it to the purchaser.

When a person was on his deathbed and the heir desired to sell some of the dying person's property to spend the money for the sake of the burial, our Sages ordained that if the heir says: "What I will inherit from my father today is sold to you," the sale is binding. The rationale is that since the son is poor, if he is forced to wait until his father dies to sell the property, the corpse will remain unburied and be disgraced.

Just as a person may not transfer ownership of an article that has not yet come into existence, so too, he may not transfer ownership of an article to someone who has not come into existence. Even a fetus is considered to be someone who has not come into existence, and thus, when a person wishes to endow a fetus with an article, the transaction is not binding. If, however, the fetus is the person's son, the transaction is binding. The rationale is that a person feels great closeness to his son.

The laws applying to transactions involving property consecrated to the Temple, the poor, and vows are not the same as those involving ordinary people. If a person says: "All the offspring of my animal will be consecrated to the Temple treasury,"... "will be given to charity,"... the person making the statement is obligated to keep his word, as Numbers 30:3 states: "He must act according to the statements that he utters."

Context

Date

Maimonides (Rabbi Moshe ben Maimon, also known as Rambam), composed the Mishneh Torah in the late 12th century (circa 1170-1180 CE) in Egypt. This monumental work represents a pivotal moment in Jewish legal history, codifying all of Jewish law in a clear, systematic, and rational manner.

Actor

Maimonides was a towering figure: a brilliant halakhist, philosopher, physician, and communal leader. He lived in a time of immense intellectual ferment and profound political change, navigating both the complexities of Jewish tradition and the challenges of the wider Islamic world. His genius lay in his ability to synthesize vast bodies of knowledge and present them with clarity and authority.

Aim

The Mishneh Torah's ambitious goal was to create a comprehensive legal code that would make the entirety of Jewish law accessible to every Jew, without the need to delve into the intricate dialectics of the Talmud. Maimonides sought to clarify the halakha lema'aseh (the practical law) for all aspects of Jewish life, from ritual observances to civil transactions. In the section on Sales (Hilkhot Mekhirah), his aim was to delineate the precise legal requirements for valid commercial transactions, addressing common scenarios and complex edge cases, always with an eye toward ensuring fairness, preventing disputes, and upholding the integrity of the legal system. The nuanced discussion of davar shelo ba la'olam (something not yet in existence) is central to this aim, as it touches upon the very nature of ownership, intent, and future promises in the legal realm.

Two Readings

The Mishneh Torah's discussion on ein adam makneh davar shelo ba la'olam – "a person cannot transfer ownership over an article that has not yet come into existence" – presents a fundamental legal principle, yet it is immediately followed by a series of critical exceptions. This interplay between the strict rule and its compassionate or purposeful deviations offers a powerful framework for understanding the complexities inherent in the Zionist project and the ongoing building of the State of Israel. We can discern two primary readings from this text, each illuminating a different facet of Israel's journey: the Pragmatic & Responsive Approach and the Idealistic & Covenantal Approach.

Reading 1: The Pragmatic & Responsive Approach (Takanat Ha'Olam)

This reading emphasizes the exceptions to the general rule, particularly those driven by immediate human need, societal welfare, and the practicalities of a functioning economy. Maimonides, as a codifier of law, understood that a legal system must be flexible enough to address the messy realities of life, even if it means bending a strict principle.

Insight 1: Necessity and Compassion Drive Legal Innovation (Sales 22:6)

The text highlights two specific cases where davar shelo ba la'olam is acquired: the heir selling property for a deathbed burial, and the poor fisherman selling his future catch for livelihood. Maimonides explicitly states the rationale: "since the son is poor, if he is forced to wait until his father dies to sell the property, the corpse will remain unburied and be disgraced." Similarly, for the fisherman, "This was ordained to provide for his livelihood." These are not standard commercial transactions but takkanot – rabbinic decrees enacted for the betterment of the world (takanat ha'olam) or due to profound human need.

The Shorshei HaYam commentary on this section (Shorshei HaYam on Mishneh Torah, Sales 22:1:1) delves into the nuanced legal arguments surrounding davar shelo ba la'olam. While it primarily discusses the chiyuv (obligation) versus kinyan (acquisition) of such items, its broader context often references takanat ha'olam in other related Talmudic discussions. The underlying principle is that even fundamental legal strictures can be modified or circumvented when faced with compelling social, ethical, or humanitarian imperatives. The dignity of the deceased and the survival of the impoverished take precedence over the legal niceties of future acquisition.

Zionist Connection: This pragmatic approach deeply resonates with the early Zionist movement and the formative years of the State of Israel.

• Response to Crisis: Zionism, in its modern manifestation, was largely a response to existential threats: pogroms, antisemitism, and ultimately, the Holocaust. The need to save lives, to provide refuge, and to build a secure home for a persecuted people was an overwhelming, immediate necessity. The legal and political niceties of establishing a state often had to yield to the urgent imperative of rescue and survival. The "deathbed heir" and "poor fisherman" metaphors vividly describe the desperate circumstances of many Jewish immigrants and the nascent state.
• State-Building on the Fly: The establishment of the State in 1948 was not a perfectly planned, theoretically ideal endeavor. It was a scramble, a series of pragmatic decisions made under duress: absorbing hundreds of thousands of refugees with minimal resources, fighting for survival, and rapidly building institutions from scratch. These were takkanot in the grandest sense – ad-hoc solutions to unprecedented challenges, often bending or creating new "rules" out of sheer necessity for the collective good. The "produce" (the functioning state, the thriving society) was not fully "in existence" when the initial "sale" (declaration of independence, early decisions) was made, but the commitment was binding due to the urgency of the situation.
• Continuous Adaptation: Even today, Israel often operates with a pragmatic ethos, adapting quickly to geopolitical shifts, security threats, and social changes. This involves making difficult choices, sometimes compromising ideals for the sake of survival or immediate stability, much like the Sages' decrees for essential human dignity and livelihood.

Insight 2: Acquiring the "Benefit" of What Exists (Sales 24:1, 24:9)

Maimonides further clarifies that while one cannot sell "the doves that will be born or the honey that will be produced," one can sell "the dovecote with regard to the benefit it produces, and the beehive for its honey." The Steinsaltz commentary (Steinsaltz on Mishneh Torah, Sales 22:1:1) notes this distinction: "דבר שאינו קיים במציאות בהווה אלא עתיד להיות קיים (אבל יכול להקנות גוף הדבר לפירותיו אף שהפירות אינם קיימים, כדלקמן כג,א)" – "Something that does not exist in reality in the present but is destined to exist (but one can transfer ownership of the thing itself for its fruits, even though the fruits do not exist, as explained later in 23:1)." This is a crucial differentiation: owning the source of future benefit, rather than the non-existent benefit itself.

Zionist Connection: This legal nuance reflects how Zionism engaged with the land and its resources.

• Developing Existing Potential: Early Zionist pioneers didn't just dream of future harvests; they acquired land (the "dovecotes" and "beehives") and invested in its development, making it productive. They understood that the "fruits" of the land – agricultural produce, infrastructure, institutions – would only come into existence through labor and investment in the existing physical entity. The "sale of the dovecote for its benefit" is a metaphor for investing in the potential of the land and its people, cultivating what already exists to yield future growth.
• Resource Management: Modern Israel continues to grapple with this. It manages scarce water resources, develops innovative agricultural techniques, and harnesses human capital (the "dovecotes" of talent) to produce future economic, scientific, and cultural "honey." This is a pragmatic recognition that while the future is uncertain, one can make binding commitments to develop and utilize existing resources for future benefit.
• Balancing Sustainability: The instruction to "leave enough of the fledglings so that the dovecote will remain populated" (Sales 24:2) provides a powerful lesson in sustainability and intergenerational responsibility. This isn't just about maximizing immediate gain, but ensuring the long-term viability of the resource. This applies directly to environmental concerns, social equity, and economic policy within Israel, emphasizing the need to preserve resources and opportunities for future generations, rather than depleting them for short-term advantage.

Reading 2: The Idealistic & Covenantal Approach (Da'ato shel Adam Krovah)

This reading focuses on the exceptions that override the principle of davar shelo ba la'olam due to profound intent, deep relationships, or sacred obligation. These are not mere pragmatic adjustments but reflect a higher order of commitment that transcends typical commercial logic.

Insight 1: The Power of Deep Intent and Close Relationships (Sales 22:10)

Maimonides states that while one cannot endow a general fetus, "If, however, the fetus is the person's son, the transaction is binding. The rationale is that a person feels great closeness to his son." This "closeness of mind" (da'ato shel adam krovah etzel beno) creates a unique legal capacity. The Steinsaltz commentary (Steinsaltz on Mishneh Torah, Sales 22:10:1) elaborates: "וודאי גמר בדעתו להקנות לו" – "And he certainly resolved to transfer ownership to him." The deep, unwavering intent of a parent for their child, even unborn, is so profound that it allows for the acquisition of something not yet in existence or to someone not yet in existence.

The Ohr Sameach (Ohr Sameach on Mishneh Torah, Sales 22:10:1) discusses the broader implications of da'ato shel adam krovah etzel beno in the context of inheritance and legal standing, referencing various Talmudic opinions. It explores how this principle can validate certain acquisitions for future generations, even when the legal mechanisms for kinyan are not fully present. The Sha'ar HaMelekh (Sha'ar HaMelekh on Mishneh Torah, Sales 22:10:1) further engages with the Mabit and other authorities on whether this "closeness" applies universally (to mothers, or even grandchildren) and its limits, confirming its power as a unique legal override.

Zionist Connection: This idealistic approach forms the spiritual and historical backbone of Zionism.

• Generational Covenant: The Jewish people's connection to the Land of Israel is precisely this kind of deep, generational bond. For millennia, Jews maintained a profound, almost parental, longing for Zion, a da'ato shel adam krovah that transcended physical absence. The return to Zion was not merely a political project but the fulfillment of an ancient covenant, an inheritance promised from "father to son" across countless generations. The land was always "ours," even when not "in our possession," because of this enduring, resolute intent.
• Unwavering Resolve: The founders of Zionism, and subsequent generations, possessed an unwavering resolve to build a state. This deep-seated commitment, akin to a parent's for their child, allowed them to make sacrifices and endure hardships for a future that was, for much of the time, davar shelo ba la'olam. This deep intent allowed them to "acquire" a future that others might have dismissed as impossible, making a "binding transaction" with destiny.
• The Unborn Generations: The very concept of "Zionism" is an investment in future generations – those "fetuses" who would be born free in their homeland. The state was built not just for those alive at its founding, but for all future Jewish children, a profound act of trans-generational love and responsibility.

Insight 2: The Binding Nature of Sacred Vows (Sales 23:3-4)

Perhaps the most powerful exception is regarding sacred vows. Maimonides rules that if a person vows to consecrate future offspring or dedicate funds to charity, these vows are binding, even though the objects do not yet exist. The reason cited is from Numbers 30:3: "He must act according to the statements that he utters." This emphasizes a moral and spiritual obligation that takes precedence over material legalities. The Steinsaltz commentary on this section confirms that these are not ordinary commercial transactions but matters of spiritual commitment.

The Shorshei HaYam (Shorshei HaYam on Mishneh Torah, Sales 22:1:1) touches on the distinction between kinyan (acquisition) and chiyuv (obligation), suggesting that while a future item might not be acquired, a person can obligate themselves to provide it. This is particularly true for vows. Maimonides himself elaborates: "A person is not commanded to transfer ownership of property. He is, however, commanded to fulfill his pledges to charity or to consecrate property, as he is commanded to fulfill other vows." This places vows in a unique category of binding commitment.

Zionist Connection: This covenantal perspective provides a powerful lens through which to view the moral and ethical underpinnings of Zionism.

• Historical Mandate and Moral Claim: Zionism's deepest roots are in the Jewish people's covenantal relationship with God and the Land of Israel. The prayers, the longing, the spiritual connection – these are akin to sacred vows, binding commitments that transcend material ownership or political expediency. The declarations that led to Israel's establishment (e.g., Balfour Declaration, UN Resolution 181) can be seen as modern affirmations of this ancient vow, giving it international recognition and a legal-political framework, transforming a spiritual commitment into a modern national project.
• Ethical Obligations to the Future: The founding documents of Israel, particularly the Declaration of Independence, contain aspirational "vows" to justice, equality, and peace for all its inhabitants. These are not merely legal clauses but profound ethical obligations, akin to sacred commitments. They represent the ideal "produce" that the state is "commanded to fulfill," even if that produce is not yet fully "in existence." This means constantly striving for a society that lives up to its highest moral calling, even when faced with immense practical challenges.
• Peoplehood and Responsibility: This reading emphasizes that the Jewish people's claim to Israel is not solely a matter of land or security, but a sacred trust. It underscores the responsibility that comes with that trust – to build a just, ethical, and thriving society that reflects the highest values of Jewish tradition, not just for its own citizens, but as a light among nations. This requires continuous introspection, upholding human dignity, and working towards a future of shared flourishing, even when the path is unclear or the "fruit" seems distant.

Civic Move

Our exploration of Maimonides' laws on acquiring "that which has not yet come into existence" reveals a profound tension between strict legal principles and the compelling demands of human need, deep intent, and sacred obligation. This tension is not abstract; it lives within the heart of the Zionist project and the ongoing story of Israel. To engage with this complexity constructively, our civic move must be one of Shared Cultivation: Building the Future's Harvest.

The State of Israel, like the "dovecotes for their benefit" or the "field for its produce" in Maimonides' text, is an entity that exists, but its ideal future – its full "harvest" – is still davar shelo ba la'olam. It is a project in continuous formation, shaped by both pragmatic necessity and enduring ideals. This civic move invites us into a process of dialogue, learning, and repair, centering peoplehood and responsibility in the ongoing cultivation of this future.

Action 1: Dialogue of Intent and Necessity

We must create spaces for honest, empathetic dialogue that acknowledges both the "deep intent" of the Jewish people for their ancestral homeland and the "necessity" that drove the state's formation, while also recognizing the complex realities and impacts on all who live in the land.

• Practice: Organize community forums or educational workshops titled "Our Unfinished Harvest: Navigating Israel's Future." These should bring together individuals from diverse perspectives – those whose primary connection to Israel is idealistic and covenantal, and those who emphasize its pragmatic, security-driven realities, as well as voices that articulate the challenges and grievances of others impacted by its establishment.
• Focus: Using the Mishneh Torah text as a springboard, participants can explore:
  • What are the "sacred vows" we believe Israel has made, both to its people and to humanity, and how are we fulfilling them? (Drawing from the "Idealistic & Covenantal" reading).
  • What "necessities" (security, economic stability, social cohesion) continue to shape Israel's decisions, and how do these sometimes conflict with or reinforce our ideals? (Drawing from the "Pragmatic & Responsive" reading).
  • How do we understand the "closeness of mind" (da'ato shel adam krovah etzel beno) that binds us to Israel, and how can we extend that sense of care and responsibility to all the "children" – all the inhabitants – of the land?
• Methodology: Employ structured dialogue techniques that prioritize active listening, empathy, and shared inquiry over debate. The goal is to understand differing "readings" of Israel's past and present, not to achieve immediate consensus, but to build a foundation for shared responsibility in the future.

Action 2: Learning from the "Source of the Harvest"

Maimonides' distinction between acquiring the "thing itself for its produce" versus the "non-existent produce" teaches us that true ownership and responsibility lie in cultivating the source, not merely anticipating its yield. We must deepen our understanding of the foundational "source" of Israel – its history, its diverse peoples, its challenges, and its aspirations.

• Practice: Develop learning modules or a study group focused on "Cultivating the Land and its People: A Deep Dive into Israel's Foundations." These modules would go beyond headlines to explore:
  • Historical Context: Study the multiple narratives surrounding Israel's founding, including diverse Zionist perspectives and the Palestinian experience, acknowledging that each group has a profound connection to the land and its future.
  • Legal & Ethical Frameworks: Examine Israel's Declaration of Independence and its core laws through the lens of Maimonides' principles. Where are the explicit "vows" to justice and equality? How have "necessity-driven" policies evolved, and what ethical questions do they raise?
  • Interdependence: Reflect on the implications of the instruction to "leave enough of the fledglings so that the dovecote will remain populated." How does this ancient wisdom inform our approach to environmental sustainability, resource sharing, and fostering a vibrant future for all communities in the land? This is about recognizing that the flourishing of one group is often intertwined with the flourishing of others.
• Collaboration: Partner with organizations that offer diverse historical and contemporary perspectives on Israel and the region. Invite speakers from different backgrounds to share their narratives, fostering a richer, more complex understanding.

Action 3: Repairing the Unintended Consequences

The law's exceptions for "necessity" and "closeness" highlight that while we make decisions with good intentions for our "own," these actions invariably have consequences, sometimes unintended, for others. Repair involves acknowledging these consequences and actively working to mitigate harm and build a more just future.

• Practice: Initiate local projects or support existing initiatives focused on "Shared Flourishing and Future Repair."
  • Economic Justice: Inspired by the "poor fisherman" exception, support projects that promote economic opportunity and shared prosperity for all communities in Israel and the Palestinian territories, recognizing that economic desperation can fuel conflict and undermine stability.
  • Environmental Stewardship: Implement initiatives that embody the principle of "leaving enough fledglings," focusing on cross-community environmental projects (e.g., water conservation, sustainable agriculture) that benefit everyone in the shared land.
  • Memory and Narrative: Support efforts to preserve and share diverse historical narratives, fostering mutual understanding and respect. This could involve creating joint historical exhibits, oral history projects, or educational programs that delve into the complex layers of memory and experience in the region.
• Reflection: Engage in ongoing self-reflection: Where have our "acquisitions" of the future, driven by our ideals or necessities, created hardship for others? What can we, as a people connected to Israel, do to contribute to genuine repair and reconciliation? This is about taking moral responsibility for the ongoing ethical development of the state.

By engaging in these actions, we move beyond simplistic narratives and embrace the profound responsibility that comes with cultivating a future that is still davar shelo ba la'olam. We commit to building a society that not only fulfills the ancient vows and pragmatic needs of the Jewish people but also ensures justice, dignity, and flourishing for all its inhabitants, now and for generations to come.

Takeaway

The Mishneh Torah's intricate dance between the stricture against acquiring "that which has not yet come into existence" and its essential exceptions offers a profound lens for understanding Zionism and the State of Israel. It teaches us that while legal and practical realities often limit what can be immediately "acquired," deeper human needs, profound familial bonds, and sacred, covenantal obligations possess an extraordinary power to make the "not yet existing" binding and real.

Zionism, at its heart, is both a pragmatic response to existential necessity and the fulfillment of a millennia-old, deeply covenantal dream. Israel, as a modern state, is a testament to this blend: born of urgent need and built on an unwavering, generational commitment. Yet, like any human endeavor, its ideal form remains davar shelo ba la'olam – a future "harvest" still to be cultivated. Our responsibility, then, is not just to celebrate its existence, but to actively participate in its ongoing creation. This requires a strong spine of commitment to its founding ideals and the security of its people, coupled with an open heart that embraces the complexities, acknowledges the impacts on all who share the land, and continuously strives for justice, compassion, and a sustainable future for everyone. The work of building Zion is an unfinished symphony, demanding our moral imagination, our compassionate engagement, and our unwavering dedication to the promise of what is yet to be.