Restraints On Alienation:

By: Executive Committee of the Editorial Board. , Lewis N. Dembitz

Restraints on the power to sell or encumber land are known to many systems of jurisprudence. The institution of the year of jubilee ( see Sabbatical Year ), as set forth in Lev. xxv. 8-28, is the most rigid restraint upon the free disposition of land. It applied to the Holy Land only, and in its full force to farming and grazing land solely; for houses within a walled city, if sold by the owner, could be redeemed only within a year. After the lapse of a year the sale became absolute. Houses in the open country or in villages were redeemable forever, and reverted in the year of jubilee to the former owner. The houses in the cities allotted to the Levites and priests were also inalienable, as they were the only heritage of the Levites.

The weighty sentence in the above-cited passage is: "The land shall not be sold in perpetuity; for the land is mine" (verse 23). However, the Talmud in one place surmises that a sale of land for a termof sixty years would have been valid even while the institution of the jubilee was still in force (B. M. 79a); but this is only a surmise, as the jubilee had not been observed at any time during the second commonwealth. Indeed, to sell for a term reaching for ever so short a time beyond the next year of jubilee is as much a violation of the letter of the law as an absolute sale.

According to the Talmud, the institution fell into disuse many years before the destruction of the First Temple, though instances of the purchase of land by the nearest agnate of the inheriting owner are certainly found as late as Jeremiah (Jer. xxxii. 6-25), in full accord with the rules laid down in Lev. XXV.

Land, either in Palestine or elsewhere, may be freely sold by the owner without any regard to the law in Leviticus; only persons less than twenty years old are not competent to sell inherited land (Giṭ. 65a) nor make a gift "mortis causa" of such lands ( see Infancy ). But restraints upon alienation such as are so often contrived by English and American conveyancers in wills and marriage settlements for the purpose of tying up an estate in the donor's or testator's family are wholly unknown to the Talmud jurisprudence. As has been shown under Alienation , a conveyance can restrict the title only so far as to give a life-estate to the first taker, but can not create after such life-estate either a vested or a contingent remainder. Moreover, after the life of the taker the estate must revert to the grantor and his heirs.