Shemitah and the Heter Mechira

Shemitah and the Heter Mechira

By Rabbi Joshua Flug

I. Introduction

In the late 19th century, in order to accommodate farmers, many of whom were not religious, and would continue farming during the shemitah year, a number of rabbonim, including R. Yitzchak Elchanan Spektor, endorsed selling the farms to a non-Jew for the year and allowing the Jewish farmer to profit. This shiur outline will discuss halachic issues relating to the heter mechira for shemitah including the nature of the obligation to observe shemitah nowadays; the status of land in Eretz Yisrael owned by a non-Jew; and the prohibition of lo sechaneim (selling land in Eretz Yisrael to a non-Jew). [Much of this presentation is based on R. Yosef Tzvi Rimon’s sefer on Shemita. For more on the historical background to the heter in the early years, see R. Avraham Schreiber’s article and Eitam Henkin’s article.]

II. The Nature of Shemitah Nowadays

If shemitah nowadays is only rabbinic, there is more flexibility to endorse a heter, both in general terms and specifically within the laws of shemitah (as we shall see)

a. The status of mitzvos hateluyos ba’aretz after the churban

• i. The Gemara quotes a dispute among the Tannaim regarding the status of mitzvos hateluyos ba’aretz after the destruction of the Bayis Sheni. Reish Lakish is of the opinion that there is no kedusha and therefore, mitzvos hateluyos ba’aretz are only rabbinic in nature. R. Yochanan is of the opinion that these mitzvos are still in effect. {1}
• ii. Rambam (1138-1204) writes that after Churban Bayis Rishon, there was no kedushas ha’aretz, however after Churban Bayis Sheni, the kedusha remains intact. {2} Rambam explains that the difference is that the first conquest (of Yehoshua) was through war and therefore, when then land was taken away, the kedusha was nullified. However, when the people came back to Eretz Yisrael during the time of Ezra, they didn’t acquire it through war and therefore, even after exile, the kedusha remains. {3}
  • 1. Rabbeinu Baruch (13th century) follows the opinion of Reish Lakish that even the kedusha shniya is nullified and there is no kedushas ha’aretz nowadays. {4} The Vilna Gaon (1720-1797) follows the opinion of Rabbeinu Baruch as a matter of Halacha. {5}

b. Is shemitah dependent on the observance of yovel?

• i. The Gemara quotes a beraisa that there was no observance of yovel during the Bayis Sheni period because the majority of Jews didn’t come to Eretz Yisrael with Ezra. {7}
• ii. The Gemara, in discussing pruzbul quotes Rebbi that when shemitas karka is observed, shemitas kesafim is observed (on a Torah level) and when shemitas karka is not observed on a Torah level, shemitas kesafim is also not observed. {7}
• iii. Rambam’s opinion on this matter requires further clarification:
  • 1. Rambam writes that there are certain halachos that don’t apply now that there is no yovel except שביעית בארץ והשמטת כספים בכל מקום מדבריהם. {8} The question is whether בכל מקום מדבריהם refers both to shemitas ha’aretz and shemitas kesafim or just shemitas kesafim.
  • 2. Rambam, in discussing terumah, mentions ביאת כולכם as a biblical requirement to be obligated in terumah and ma’aser. {9} The concept of ביאת כולכם is taken from yovel and doesn’t appear in the Gemara regarding terumah. Therefore, it is logical to assume that it is a more general rule that should include shemitah as well.
  • 3. R. Yosef Karo (1488-1575) suggests that Rambam understands that when the Gemara equates shemitas karka to shemitas kesafim, it is not referring to farming the land, but rather to returning land to property owners at the time of yovel. Shemitas ha’aretz is in full force on a Torah level nowadays. {10}
  • 4. When R. Ya’akov ben Asher (Tur 1269-1343) quotes that the normative opinion is that shemitah is only rabbinic nowadays {11}, R. Yosef Karo notes that this is the consensus of the Rishonim including Rambam. {12}
• iv. Piskei Halacha of the Acharonim:
  • 1. R. Yisrael of Shklov (c. 1770-1839) writes that almost all of the Rishonim assume that it is rabbinic and Rambam may also be of that opinion. This also seems to be the accepted opinion. {13}
  • 2. Netziv (1816-1893) assumes that Rambam is of the opinion that working the land during shemitah year is a biblical prohibition and that most of the Rishonim concur. {14}
  • 3. R. Avraham Yeshaya Karelitz (1878-1953) assumes that most Rishonim are of the opinion that shemitah is d’rabanan. {15}

III. Land Owned by non-Jews

a. Introduction

In order to execute the heter mechira, one would have to assume that ownership by a non-Jew actually removes or mitigates the shemitah obligations, both with regards to the produce and with regards to the prohibition against working the land. If the produce still has kedushas shevi’is, then it cannot be sold and if there is a prohibition against working the land, then the Jewish farmer cannot be involved in the farming.

b. Does the Produce Have Kedushas Shevi’is?

• i. The Gemara quotes a dispute regarding a non-Jew who purchases land in Eretz Yisrael and its ability to remove the obligation of ma'aser: {16}
  • 1. Rabbah is of the opinion that the transaction does not remove the kedushas ha'aretz.
  • 2. R. Eliezer is of the opinion that the transaction does remove the kedushas ha'aretz.
• ii. When Rambam presents this dispute, he does so from the context of the status of the land after a Jew purchases it again. He rules in accordance with Rabbah, that the kedusha status was not removed when the non-Jew owned it and therefore, the Jew must observe mitzvos hateluyos ba'aretz on the land that he purchased. {17}
• iii. Shulchan Aruch codifies Rambam's opinion. {18}
• iv. R. Yosef Karo notes that there are many sugyos that imply that one does not observe mitzvos hateluyos ba'aretz on land owned by non-Jews. He suggests that either those sugyos follow R. Eliezer or that those sugyos are dealing with land that is currently owned by a non-Jew. If the non-Jew still owns the land, even Rabbah agrees that mitzvos hateluyos ba'aretz don't apply. {19}
• v. The suggestion of R. Yosef Karo was part of a larger debate that he had with R. Moshe de Trani (Mabit 1505-1585). Mabit, in discussing whether ma'aser must be taken from produce grown on non-Jewish land during the shemitah year suggests that the produce have full kedushas shevi'is and therefore is exempt from ma'aser. {20} R. Karo disagreed with him and reiterated the point he made in Kesef Mishneh that when the non-Jew owns the land, there is no kedushas shevi'is. {21}
• vi. R. Yisrael of Shklov, after a lengthy discussion, shows that most Rishonim and Acharonim follow the opinion of R. Karo that the land is exempt from shevi'is. {22}
• vii. Chazon Ish disagrees with R. Yisrael of Shklov's assessment. He contends that R. Yisrael should not have assumed that those who require separation of ma'aser necessarily agree with R. Karo. Maybe they only required it as a matter of chumra, but also maintain that the land has kedushas shevi'is. {23}

c. Working the Land

• i. The Gemara states that there is a prohibition against working the land with a non-Jew during shemitah. {24}
• ii. The Gemara presents R. Yanai's psak that one may plant during shemitah year because of the tax collector. {25}
  • 1. Rashi (1040-1105) gives two interpretations: {26}
    • a. It was land owned by a non-Jew and the Jew was hired to work the land.
    • b. It was a specific leniency because of fear of retribution by the tax collector (and there was potential danger involved).
  • 2. Tosafos question Rashi's first interpretation from the Gemara regarding the prohibition against working together with a non-Jew. It seems that this is true even if the non-Jew owns the land. {27}
  • 3. Rabbeinu Baruch defends Rashi's opinion by suggesting that the Gemara that prohibits working with the non-Jew follows the opinion that there is still kedushas ha'aretz after the Churban Bayis Sheni. However, since we follow the opinion that there is no kedushas ha'aretz (as we noted earlier from Rabbeinu Baruch), there is no prohibition against working the land of a non-Jew. {28}
  • 4. R. Yosef D. HaLevi Soloveitchik (Beis HaLevi 1820-1892) notes that if one assumes that shemitah is only rabbinic nowadays because there is no kedusha on the land, then the prohibition against working the land of a non-Jew does not apply. However, if the reason why shemitah is rabbinic is because of its contingency on yovel, then the prohibition against working the land of a non-Jew would apply. He further notes that we don't follow Rabbeinu Baruch and therefore, the heter mechira would not be effective if the Jewish farmer works the land during shemitah. {29}
  • 5. R. Avraham Y. Kook (1865-1935) notes that even if one assumes that there is a prohibition against working the land of a non-Jew, the prohibition is only rabbinic and should be limited to the way it is presented in the Gemara: a Jew and non-Jew working the land together. If the Jew is working alone, there should be no prohibition. {30}

IV. The Prohibition against Selling Land in Eretz Yisrael to Non-Jews

• a. The Gemara cites a Beraisa that has three interpretations of לא תחנם (based on the root חן): {31}
  • i. Do not give them a place to settle- חנייה בקרקע.
  • ii. Do not charm them- חן.
  • iii. Do not give them free gifts – מתנת חנם.
• b. Netziv notes that this is the biggest problem with the heter mechira. We are trying to circumvent a rabbinic prohibition of shemita by violating the biblical prohibition against selling land in Eretz Yisrael to non-Jews. In his words: ברח מהזאב ופגע בו ארי. {32}
  • i. Chazon Ish takes this a step further. The sale was traditionally executed through the Chief Rabbinate with the rabbis acting as agents on behalf of the landowners. If the prohibition of lo sechaneim is violated, then the principle of אין שליח לדבר עבירה should dictate that the sale itself is invalidated. {33}
• c. Reasons why Lo Sechaneim might not apply to the heter mechira
  • i. There is no violation when the intent is not to give them a place to settle
    • 1. Rabbeinu Nissim (1320-1380) writes that freeing a slave is a violation of לא תחנם. Yet, it was permissible for R. Eliezer to free his slave to make a minyan because he wasn’t doing so for the benefit of the slave but for his own benefit. {34}
    • 2. When Rambam presents the prohibition, he writes שאם לא יהיה להם קרקע ישיבתן ישיבת עראי היא. {35}
    • 3. R. Yehoshua Trunk of Kutna (1821-1893) infers that Rambam’s opinion is that the prohibition does not apply if one is selling land to the non-Jew for the benefit of the Jew (similar to Rabbeinu Nissim’s opinion regarding giving gifts). {36}
    • 4. Chazon Ish disagrees with R. Trunk’s assessment. He argues that Rabbeinu Nissim’s leniency is specifically to lo sechaneim as applied to gifts and not as applied to selling land in Eretz Yisrael. {37}
  • ii. Selling land to Muslims (non-idol worshippers)
    • 1. R. Yosef Karo in Beis Yosef, writes that when Tur presents this prohibition, he uses the term idol worshipper, but only to exclude a ger toshav and not a Muslim. The prohibition applies to all non-Jews who do not have the status of ger toshav. {38}
    • 2. R. Yoel Sirkes (Bach 1561-1640) questions R. Karo's comments. If this were the case, why did Tur write idol worshippers, and not non-Jews? {39}
      • a. R. Avraham Yitzchak Kook (1865-1935) writes that in a pressing situation, one may rely on Bach's opinion that לא תחנם only applies to idol worshippers. {40}
      • b. In the Machon Yerushalayim edition of the Tur, there is an extra paragraph of the Bach that doesn't appear in earlier editions because of censorship. In that paragraph, Bach writes that really Tur meant to write גוי but because of censorship issues, it was changed to idol worshipper. I.e. the prohibition applies to all non-Jews. {41}
  • iii. Temporary sale
    • 1. Sefer HaChinuch in discussing the concept of permanent sale in Eretz Yisrael (regarding yovel) quotes the opinion of Rambam (1194-1270) that it is permissible to sale land to a non-Jew as long as the sale is not permanent. {42}
    • 2. Rav Kook, combining this leniency with the two others presented previously felt that there is enough to rely on for the heter mechira. {43}
  • iv. Rav Kook also quotes R. Zalman Shach that perhaps lo sechaneim does not apply to a non-Jew who already owns land in Eretz Yisrael. {44}

Sources and References

1. יבמות פב-.פב:

2. רמב"ם, הל' תרומות א:ה

3. רמב"ם, הל' בית הבחירה ו:טז

4. ספר התרומה, הל' ארץ ישראל

5. ביאור הגר"א, יורה דעה שלא:ו

6. ערכין לב:

7. גיטין לו-.לו:

8. רמב"ם, הל' שמיטה ויובל י:ט

9. רמב"ם, הל' תרומות א:כו

10. כסף משנה הל' שמיטה ויובל ט:ב

11. טור, יורה דעה ס' שלא

12. בית יוסף, יורה דעה ס' שלא

13. פאת השלחן, בית ישראל כג:כג

14. משיב דבר, יורה דעה ב:נו

15. חזון איש, שביעית ג:ח

16. גיטין מז.

17. רמב"ם, הל' תרומות א:י

18. שלחן ערוך, יורה דעה שלא:ג

19. כסף משנה, הל' תרומות א:י

20. שו"ת מבי"ט ס' יא

21. אבקת רוכל ס' כד

22. פאת השלחן, בית ישראל כג:כט

23. חזון איש, שביעית כ:ז

24. גיטין סב.

25. סנהדרין כו.

26. רש"י, סנהדרין כו.

27. תוס', סנהדרין כו.

28. ספר התרומה, הל' ארץ ישראל

29. בית הלוי ג:ו (א)

30. משפט כהן ס' נח

31. עבודה זרה כ.

32. משיב דבר ב:נו

33. חזון איש שביעית כד:ד

34. ר"ן גיטין כא.

35. רמב"ם הל' עבודת כוכבים י:ד

36. ישועות מלכו, יורה דעה ס' נט

37. חזון איש, שביעית כד:ד

38. בית יוסף חו"מ ס' רמט

39. ב"ח חו"מ ס' רמט (דפוס ווארשא)

40. משפט כהן ס' סג

41. ב"ח חו"מ ס' רמט (דפוס מכון ירושלים)

42. ספר החינוך, מצוה שלט

43. משפט כהן ס' ס

44. שבת הארץ, מבוא ס' יב