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Heter Mechira: The Ideal Solution to Shmita Today

In the opinion of many Rishonim, shmita at this time is nothing but a minhag chassidut (custom of extreme piety), and there is even disagreement regarding the counting of the years, and when shmita falls out * In view of this, even if we are strict and take into consideration the minority opinion that shmita is practiced at this time, we may rely on the opinion of Beit Yosef that selling land to a non-Jew expropriates the laws of shmita from the land * It is preferable to buy heter mechira fruits over those grown by non-Jewish farmers, because by doing so we fulfill the mitzvah of yishuv ha’aretz (settling the Land of Israel) by strengthening the farmers who cultivate its lands

Q: Is the heter mechira ideal, or should the position of Haredi rabbis who prefer to buy produce grown by non-Jews be taken into account?

A: In our current situation, the heter mechira (the sale of Israeli farmland to a non-Jew to avoid the prohibition of working the land in Israel during the Sabbatical [shmita] year) is the most mehudar (ideal) of all the various options. True, Maran Rabbi Kook ztz”l, out of his tremendous piety and desire for the Redemption and observance of all the mitzvot dependent on the Land of Israel, sighed a lot about the heter mechira, and consequently also refrained from clarifying all the halachic foundations of the heter, but in truth, anyone who studies the issue understands that the heter is le-chatchila (a level of performance that satisfies an obligation in an ideal manner). To clarify the heter, I will begin with a brief explanation of the mitzvah of Shivi’it (shmita).

The Mitzvah of Shivi’it

It is a positive mitzvah to refrain from cultivating the Land of Israel in the Sabbatical year, which includes the prohibition of sowing, planting, and pruning. It is also forbidden to do any permanent type of work in the field such as plowing. In addition, it is a mitzvah not to harvest fruit growing in the seventh year, i.e., it is a mitzvah for the owners of the fields to let any person or animal eat from the fruit. Therefore, it is forbidden to harvest or reap the fruits in the way that the owners of the fields normally reap for trade. Rather, every person, including the owner of the field, may pick from the fruits grown for the needs of his home, and no more.

In order to survive in the seventh year, Israel had to conserve grain, wine and oil from the previous six years, to suffice for the seventh year. In doing so, they learned to save, and by means of this, were able to invest in the development of the fields and factories to increase productivity, and could even survive in years of drought. Thus, the blessing written in the Torah for those who keep the seventh year was fulfilled in a natural way.

The Majority of Poskim Say Shmita In Our Time is Rabbinical

According to the majority of poskim, Rishonim and Achronim, in our time, the mitzvah of shmita time is from Divrei Chachamim (rabbinical ordinance), because from the Torah, only when all of Israel lives in their land according to their tribes, each tribe in its inheritance, must we observe the commandment of the Jubilee (Yovel) and shmita. Thus, from the time that the tribes of Reuben and Gad and half of Menasheh were exiled from their inheritance by Tiglath-Pileser king of Assyria, the mitzvah from the Torah is null and void, as the Torah says:

“You shall sanctify the fiftieth year, declaring emancipation for the land and all who live on it” (Leviticus 25:10) – specifically, only when all its inhabitants reside according to their proper arrangement, and are not intermingled. However, if they do not live in their proper arrangement, even if all of Israel are in the land, but the tribes are intermingled, the obligation of shmita is void (Arakhin 32b). The halakha is that the law of shmitah is dependent on the law of Yovel, and when the commandment of Yovel is not in effect from the Torah, the mitzvah of shmita is also annulled from the Torah (Gittin 36a; Peninei Halakha: Shivi’it 5: 3-4, footnote 3).

The logic of the mitzvah is understandable: only when all of Israel has land in the country and everyone keeps shmita together, are they able to face the great challenge of shmita and Yovel. However, when only a portion of Israel has land, they cannot bear the burden of shmita alone. And even if economically they were able to cease from working, it would be difficult for them to overcome their temptations if the obligation is not imposed on everyone equally. Not only that, each tribe must live on its own inheritance, this is because members of the same tribe are more capable of helping each other meet the great challenge of shmita, and even to ensure the enforcement of Yovel, the year in which lands return to their owners, because whoever refuses to return land he bought, harms one of the members of his own tribe. In addition, when all of Israel are not living in the land, the uninhabited areas are likely to be occupied with non-Jews who work in their fields for seven years, thus creating competition for keepers of shmita, who would find difficult to withstand (Peninei Halakha: Shivi’it: 1:9).

Even what the Torah says, that God will give his blessing, takes place while all of Israel are in their land, and the obligation of shmita is from the Torah (Sefer Me’irat Enayim, Chosen Mishpat 67: 2; Pe’ah Ha’Shulchan 29:3). As we have learned, this is because the blessing does not come by way of a miracle, rather naturally, and consequently, when realistic conditions do not allow for blessing, the blessing vanishes (ibid. 7: 9).

Those who are of the Opinion there is No Obligation Today to Keep Shmita

In the opinion of some of the Gedolei Ha’Gaonim and Rishonim, there is no obligation to keep shmita at this time, and only because of Minhag Chassidut (a custom deriving from extreme piety) has it been practiced by some. In other words, at the time of the Second Temple, the obligation of shmita was from Divrei Chachamim, for our Sages determined that as long as the Beit Din Ha’Gadol (Sanhedrin) sanctifies months, adds a leap-month, and counts shmitas and Yovels, shmita must be kept. However, from the time the Sanhedrin which sanctified months, added leap months, and counted shmitas and Yovels was abolished, nearly three hundred years after the Destruction, in the days of Hillel II, in the year 4119 (359 C.E), the mitzvah of shmita was also null and void. This is because the law of shmita is bound to the law of Yovel, and so when Yovel was abolished, so was shmita, and only by virtue of Minhag Chassidut is shmita kept, but it is not obligatory. This is the opinion of ReZaH (Terumot 45:4), Raavad, Ohr Zeruah in the name of Rashbam, Nimukei Yosef, and also Meiri, who wrote: “There are several who agree with us from the Geonim and rabbis” (Magen Avot, 15). Rashbash wrote: “Many of the Gedolim believe it is not practiced even according to Rabbinical ordinance” (Section 258), and wrote that this is the opinion of the author of Baal Halachot (from the time of the Geonim), Rabbi Yehuda HaNasi of Alberceloni and Rabbeinu Yehuda Ben Yakar. Indeed, there were a few Achronim who believed that shmita is from the Torah (Netziv in Mashiv Davar 2:56; and this is how Beit HaLevi is inclined, 3:1). However, their words were rejected by the vast majority of the poskim (Peninei Halakha, ibid, 5:5).

The Uncertainty of Counting the Years

In addition, there is a great controversy in the counting of the years, which depends on several questions: what year was the destruction of the Second Temple; if after every forty-nine years, another year is counted for the Yovel year, and then seven years are counted, or is the counting of the shmita years consecutive.

In practice, we follow the opinion of the majority of the Rishonim, according to which the year of shmita is 5782 (Rabbeinu Tam, Ri ha-Zaken, Ramban, Ran, Teruma, Beit Yosef, and R’ma Choshen Mishpat 67:1; Rambam). According to others, the year of shmita should have been in 5781 (Rashi, Tur), while according to the counting of others, it was 5779 (Raavad, and so is the principled opinion of Rambam, though in practice, he accepted the opinion of the majority of the Geonim).

Some poskim are of the opinion that based on the safek (doubt) of the counting of the years alone, it would be possible to permit agricultural work in the shmita year in a sha’at dachak (at a time of distress). Moreover, by the very fact that there was a controversy over when shmita actually was, and this controversy lasted for nearly a thousand years – from the Destruction, until the end of the days of the Rishonim – ReZaH proved that shmita at this time is a minhag (custom), and therefore they were not meticulous in observing it (see, Peninei Halakha, ibid 5: 7, footnote 6; 7: 2).

Shmitat Kesafim (Cancellation of Debts)

It is important to know that in the matter of shmitat kesafim, this law applies abroad, just as in Israel. Consequently, if there is an obligation from Divrei Chachamim to fulfill shmita after the Destruction and the annulment of the Sanhedrin that sanctified years, then all the debts of someone who did not write a prozbul (a document abrogating an outstanding debt), expire at the end of the shmita year. In practice, many communities were not customary to write a prozbul, and the question arose as to whether the debts had expired. In practice, the rabbis instructed the debts needed to be paid, relying on the opinion of the poskim that the shmita year did not apply at the time, or because the public agreed that debts should not be expropriated. And in the Responsa Katav Sofer (H.M. 9), he clarified that the obligation of shmitat kesafim is d’Rabanan (rabbinical ordinance), and some say it is not a chova (Torah obligation), whereas on the other hand, the return of debts is a mitzvah from the Torah; consequently, the mitzvah of returning debts outweighs the doubt of the obligation of shmita.

And in fact, Rabbi Mordechai Eliasberg ztz”l was of the opinion that in order to make it easier for farmers to observe in the name of Clal Yisrael the mitzvah of Yishuv Ha’Aretz (settling the Land of Israel) without restriction, all work on the land in the shmita year should be permitted, without any need for a heter mechira.

The Heter Mechira

Although in principle, on the basis of several Rishonim there is no obligation to keep shmita in the year according to our account, or because until the restoration of the Sanhedrin that sanctifies months and years there is no obligation to keep shmita, or because they disagree about the counting of the years, despite this, the rabbis, led by Rabbi Shmuel Mohilever, were of the opinion that even in a situation of distress and difficulty for Jewish settlement, ideally, it was right to take into consideration the majority of Rishonim who believe that it is obligatory from Divrei Chachamim to keep shmita according to our way of counting the years, and therefore, they instructed the land to be sold to a non-Jew for the duration of the shmita year.

Although in the opinion of the Mabit, the sale of the land to a non-Jew does not expropriate the obligation of shmita from the land, and therefore even after the sale, it is forbidden to work the land. However, in the opinion of most of the poskim, including Rabbi Yosef Karo, as long as the non-Jew is legally the owner of the land, the obligation of shmita ceases to apply to it. And since, at most, the obligation of shmita is from Divrei Chachamim, the halakha goes according to the opinion of the lenient poskim, in addition to their being the majority (Peninei Halakha: Shivi’it 5: 11-12, 7:4).

Summary of the Halakha

Admittedly, the permit is given in times of distress, yet we are still in times of distress, both on the part of farmers who believe that without a heter to work in the shmita year they would prefer to change jobs, and also on the part of the state, for if it has to pay for the farmers cessation of work, it would cost about 10 billion shekels at the expense of yeshivas, Talmudei Torah, hospitals, roads, and more.

After all this, it is clear that from the Torah, fruits of the heter mechira are preferable over fruits grown by non-Jews. This is because it is a mitzvah from the Torah to prefer to buy from our Jewish brother, as the Torah says: “Thus, when you buy or sell to your neighbor [ami’techa]” (Leviticus, 25:14), and from the word “ami’techa“, we learn that it is a mitzvah from the Torah to prefer our Jewish counterpart to a non-Jew. Not only that, but even when the Jew’s goods cost a little more, he should be preferred (Ahavat Chesed, Volume 1, 5:7). In addition, by purchasing fruits of the heter mechira, one fulfills the mitzvah of Yishuv Ha’Aretz, which is equal in weight to all the mitzvot, and the strengthening of Jewish farmers in Eretz Yisrael is an element of the mitzvah of Yishuv Ha’Aretz, whereas those who prefer fruits grown by non-Jews, transgress two positive mitzvot from the Torah, to take into consideration nothing but the opinion of the minority of poskim in a law that is d’Rabanan or minhag.

Incidently, the most important part of Minister Matan Kahana’s ‘Kashrut Plan’ is that it enables three certified rabbis to establish a kosher organization. Thus, for example, a hechsher of the Bnei Akiva yeshivas, or the Zionist yeshivas can be authorized, according to which products that contain fruits of the heter mechira are Mehadrin (the most stringent level of kosher supervision), while hechshers of those who boycott the heter mechira are kosher bedi’avad (less than ideal). Today, however, it is impossible to obtain a Mehadrin hechsher that gives preference to the heter mechira, over fruit grown by non-Jews.

This article appears in the ‘Besheva’ newspaper and was translated from Hebrew.

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