Don’t Discredit the Heter Mechira

The ‘heter mechira’ is not contrived by any means, and more lenient measures could have been implemented * According to most poskim, shmita nowadays is binding only by rabbinic decree, and some say it is only midat hassidut * The dispute among the poskim about when the Sabbatical year actually is * The heter of ‘amira l’nochri’ of a rabbinic prohibition in pressing situations * The majority of poskim are of the opinion that Jews are allowed to work the land sold to a non-Jew in the Sabbatical year * According to most poskim, fruit that grew in the Sabbatical year in a forbidden manner, or were not made ‘hefker’, are not prohibited from being eaten * Conclusion: The Haredi boycott of the ‘heter mechira’ is halachically baseless, and is an insult to the honor of the Torah of the rabbis who permit it

A Question about the Foundations of the Heter Mechira

Q: Rabbi, how can you rely on the heter mechira (a halachic mechanism whereby agricultural lands in Israel are sold to non-Jews, allowing the lands to be cultivated and vegetables grown during the Sabbatical year) in the shmita (Sabbatical) year, given that it is a highly contrived heter? The fact is that the Haredim do not accept it, they are not willing to eat fruits grown using the heter mechira, they do not rely on kashrut certificates that accept the heter mechira, and will not eat in the homes of Jews who rely on the heter?

A: The foundations of the heter mechira are sturdy and not contrived at all. It was determined by the eminent rabbis of previous generations, including: Rabbi Yitzchak Elchanan from Kovno, Rabbi Shmuel Mohilever, Rabbi Yehoshua from Kutna, and the author of ‘Avnei Nezer’ (Rabbi Avraham Borenstein). In particular, it should be pointed out that all the rabbis who actually served as rabbis in Israel, who had the authority of mara d’atra (the local rabbinic authority), supported and administered the heter, including: The Rishon Lezion Rabbi Elyashar, Maran HaRav Kook, the Rishon Lezion Rabbi Uziel, Rabbi Herzog, Rabbi Tzvi Pesach Frank, and many more.

Moreover, the heter is not a kula (leniency), but, rather, tends more to being a chumra (stringency), because according to ikar ha’din (the essence of the law), in a sha’at dachak (time of distress), it is permissible to completely allow all agricultural work in the Sabbatical year, kal v’chomer (all the more so) when the work is done by a non-Jew. The rabbis were stringent by also necessitating the heter mechira, in order to expropriate the fields from Sabbatical obligations. And following the heter mechira, they were even more stringent by demanding that all work whose foundation was based in the Torah should be performed by non-Jews.

Therefore, the Haredim who boycott the heter mechira transgress the laws of halacha, and sin in contempt of the Torah and the eminent rabbis. This transgression stems from their basic sin with regards to the mitzvah of yishuv ha’aretz (settling the Land of Israel). I will begin to explain.

Is Shmita Binding Nowadays?

According to most poskim (Jewish law arbiters), the mitzvah of shmita nowadays is from divrei chachamim (rabbinic), because only when all Jews reside in Israel, every tribe in its place, do the mitzvoth of Yovel (Jubilee) and shmita apply from the Torah. But when the tribes of Reuben, Gad, and half of Manasseh were expelled from their land by the king of Assyria, the mitzvah from the Torah was nullified. And only when Israel returns to their land, and the country is divided once again to all the tribes of Israel, will the Torah obligation of Yovel and shmita return to its place. This was the ruling of the majority of Rishonim and Achronim, led foremost by Rambam (Laws of Shmita and Yovel, 10:9).

There are a few poskim who believe that the obligation of shmita nowadays is from the Torah. In contrast, numerous poskim are of the opinion that nowadays there is absolutely no obligation to keep shmita, because after nearly three hundred years following the destruction of the Second Temple, the Beit Din HaGadol which sanctified the months, intercalated the years, and figured the Yovel (Jubilee) years, nullified it. In their opinion, since then, the obligation of keeping shmita was completely canceled, and only from the side of midat hassidut (a pious and meritorious act) are we custom to keep shmita nowadays. This is the opinion ReZaH, Raavad, Meiri, and is implicit in the words of other Rishonim.

As is well-known, in a sha’at dachak (time of distress), halacha permits relying on da’at yichidim (the opinion of individual poskim), even in a circumstance of a Torah prohibition – as was the custom of Jews in Northern Europe to be lenient in the prohibition of eating the new crop (chadash) to allow drinking of liquor, which was extremely necessary there (Taz, Y.D. 293:4). All the more so can we rely in a sha’at dachak on the da’at yichidim who hold that shmita nowadays is annulled, for even the machmirim (strict) hold that shmita is only of rabbinic prohibition. How much more so shmita could have been annulled in combination with the safek (uncertainty) concerning the counting of the shmita years.

The Uncertainty of Counting the Years

In addition to what I have mentioned, the poskim also disagree regarding the order of the years. There are three approaches as to when the Sabbatical year falls.

Tradition states that the Temple was destroyed motzei shmita – in other words, in the first year of the Sabbatical cycle. However, there is a disagreement in what year the destruction occurred. We follow the opinion of Rabbeinu Tam and most Rishonim, and as a result this year, 5775, is a shmita year. However, according to Rashi and Tur, the destruction was a year earlier, and therefore in their opinion, the Sabbatical year was last year, in 5774.

There is another opinion, according to which, the year of Yovel must be calculated separately. That is to say, after all seven Sabbatical years, one year is added, and then once again, the Sabbatical years are counted. This was also the opinion of Rambam, however, he deferred his opinion to the accepted practice according to which the Jubilee year is not added on to the counting of shmita years.

This issue has also emerged throughout the generations, however, the decision was always as we are custom today; nevertheless, the two dissenting opinions were never canceled. Therefore, some authorities are of the opinion that since there are three possibilities when shmita occurs, given that the obligation of shmita nowadays is rabbinic – m’ikar ha’din (from the essence of the law), there is no obligation to keep shmita, because each possible year is batel b’rov (nullified by the majority) of the two additional possibilities (see, Yabi’a Omer, Y.D. 42:8). And as ReZaH wrote, the very fact that there is a dispute about when the Sabbatical year occurs is proof that shmita was not kept in many places.

And although according to minhag (custom), we set aside ma’aser sheni in the first, second, fourth and fifth year, and recite a blessing, nevertheless, the halacha is that we recite a blessing over a minhag even though it is disputed.

Many people are also customary to be lenient and collect debts after the shmita year, despite the fact that according to the letter of the law, shmitat kesafim applies world-worldwide. A number of considerations were mentioned in order to permit this, and one of them was the uncertainly of the order of years (Maharil).

 Work done by Non-Jews

As known, the Sages forbade a Jew to ask a non-Jew to do work for him on Shabbat, and this prohibition is called ‘amira l’goy‘ or “shvut“. The Talmudic Sages, however, were uncertain whether the prohibition of amira l’goy also applies to Torah prohibitions that do not carry the severity of Shabbat, whose punishment is skila [stoning] (Bava Metzia 90a). In practice, the opinion of the majority of poskim is that in all other Torah prohibitions amira l’goy also has the status of a rabbinical prohibition (Rambam, Rosh).

However, all this concerns mitzvoth prohibited by the Torah. But in regards to mitzvoth whose prohibition is of rabbinical status, in the opinion of many poskim, there is no prohibition of shvut at all; rather, a Jew is permitted to ask a non-Jew to do it for him. And even if we say that the prohibition of shvut also applies to mitzvoth whose prohibition is of rabbinic status, all this is in a normal situation, but in a sha’at dachak or l’tzorech mitzvah (for the sake of a mitzvah) – even on Shabbat, shvut d’shvut is permitted. Kal v’chomer (all the more so) in regards to the mitzvah of shmita, whose status nowadays is rabbinic, is it permitted to ask a non-Jew to do work for us in the fields, both from the side of sha’at dachak for the needs of the farmer’s livelihood, and from the side of yishuv ha’aretz. All the more so would it be permissible if they made a deal with the non-Jew in which he earns a percentage from his work.

Nevertheless, the Gedolei rabbanim (eminent rabbis) preferred to be machmir (strict) and sell the fields to a non-Jew, and this is the heter mechira.

The Heter Mechira

I will not tire my readers with the details of the issue which is complicated, and whose foundation lies in the disagreement regarding whether a non-Jew who bought a field in the land of Israel expropriates it from the mitzvoth ha’teluyot b’aretz (the commandments dependent on the land). I will just mention that in fact, when the obligation is of rabbinic status, in the opinion of the majority of poskim, the obligation of shmita does not apply to land owned by non-Jews. Although, in the opinion of Mabit and those who agree with him, all of the shmita prohibitions apply even on land owned by non-Jews. However, in the opinion of Rabbi Yosef Karo, the Vilna Gaon, and Pe’at Ha’Shulchan, the obligations of shmita do not apply to land owned by a non-Jew. This was the minhag in the Land of Israel.

Indeed, it is possible to expand and deliberate this issue at length – to strengthen the opinion of matirim (the lenient), or the opinion of the machmirim (the strict). But in the end, everyone acknowledges that there is a dispute regarding this issue, and evidently, according to most Rishonim and Achronim, the sale of land to a non-Jew expropriates it from the prohibition of working in the shmita year. This is the basis of the heter (permit).

Nevertheless, the eminent rabbis also took into account the opinion of those who believe that even after a non-Jew bought the land it is subject to all the mitzvoth. Therefore, even after the mechira, they permitted Jews to do only work whose foundation is of rabbinic status, whereas work whose foundation stems from the Torah (planting and pruning, harvesting and plowing), they permitted it to be done only by non-Jews. Only in a sha’at dachak did they permit even those types of work to be done by Jews.

Summary of the Heter Mechira

As we have seen, from ikar ha’din (the essence of the law), the rabbis could have permitted work in the shmita year based on two important considerations: first – relying on the opinion of individual poskim who hold that the law of shmita does not apply nowadays, since even according to the machmirim, shmita is only of rabbinic status. And secondly – because of the uncertainty of when the Sabbatical year falls out.

In addition, the rabbis could have permitted work by non-Jews even without the sale of the fields, since it is a prohibition of shvut in a mitzvah whose foundation nowadays is of rabbinic status.

But as I wrote in the beginning, since it was possible, the eminent rabbis preferred to be machmir, and solve the problem in a more widespread fashion by selling the fields to non-Jews, and even after the sale of the land, to only allow the types of work whose foundation is of rabbinical status.

The Status of Fruits Grown during Shmita in a Forbidden Manner

There is controversy over the status of fruits grown in the Sabbatical year in a field owned by a Jew who locked his field and did not hefker (make ownerless) the fruits properly. Some authorities prohibit eating the fruit (Rabbeinu Tam, Raaved), but according to most poskim, the fruit is permitted, given that they belong to everyone, and an individual cannot forbid them (Rash, Ramban, Rashba). There is also a dispute concerning the status of fruit grown in the shmita year by Jews who performed all the work prohibited during the Sabbatical year: some authorities prohibit eating them, (Raaved, Ramban), but according to most poskim, the fruits are permitted, since they belong to all of Israel, and no individual can forbid them (Rambam, Rosh , Radbaz, and others).

Consequently, even if there was no option to permit work in the shmita year, and there was no heter mechira at all, and all the agricultural work performed by the farmers was done in a forbidden manner according to all of the opinions – the majority of poskim hold that the fruits are permitted. Not only that – the issue at hand is a rabbinic machloket (controversy), and safek d’rabbanan le’kula (a doubt concerning a rabbinic prohibition is treated leniently).

All the more so when the considerations of the heter previously mentioned are added, plus the heter mechira, there is simply no basis whatsoever for the boycott of many Haredim of fruits grown under the heter mechira. On the contrary, it is a serious insult to the Torah and honor of the eminent rabbis in recent generations, and a severe Torah transgression.

 A Closing Note

It is possible to discuss and deliberate every detail of what I have written, l’chumra and l’kula, but to my best understanding, this summarization represents a balanced representation of the issue. On the other hand, the Haredi position is to gather every speculation of chumra’s possible, contrary to the rules of Torah study and halacha.

This article appears in the Besheva newspaper, and was translated from Hebrew. Other article by Rabbi Melamed can be found at: http://en.yhb.org.il/