The Mitzvah of Reishis HaGeiz and The Prohibition of Raising Small Livestock in Eretz Yisrael

A number of week's ago we made a special booklet in honor of all those who take part in the Dirshu Mishnah Berurah program and have recently been learning Chelek Daled. However, being that Daf HaYomi has been around for longer, I feel that if we made a sheet in honor of all the Yidden who take part in the Dirshu Mishnah Berurah program, we certainly must make one in honor of all those thousands of Yidden around the world who learn Daf HaYomi. Consequently, this week's booklet is dedicated in honor of all those who learn Daf HaYomi, and in your honor this week will discuss a topic which is scheduled to come up very soon in Daf HaYomi, and that is the topic of reishis hageiz.

Reasons for the Mitzvah of Reishis HaGeiz

In Parshas Shoftim (18:4) the Torah instructs us: ראשית דגנך תירשך ויצהרך וראשית גז צאנך תתן לו - "The first of your grain, wine, and oil, and the first shearing of your sheep you shall give him."

The Rishonim disagree about the reason for this mitzvah. The Sefer HaChinuch (Mitzvah 508) explains that the reason is: The Kohanim constantly serve before Hashem and have no land inheritance or spoils of war. Hashem therefore granted them their livelihood through the gifts of their brothers (i.e. the rest of Klal Yisrael). They receive terumah and ma'aser so that they have what to eat and drink, and they receive reishis hageiz so that they have what to wear.

The Rambam (Moreh Nevuchim 3:39) adds that although the Kohanim receive gifts because they have no land portion of their own (אין להם חלק ונחלה) and they are dedicated to Torah and Avodah, the reason for giving reishis hageiz (and other gifts) is to train a person in generosity and to help reduce his stinginess and desire to hoard wealth.

R' Yonasan Eibshitz (Tiferes Yonasan, Shoftim) adds yet a third reason, which is: Since the pillar of cloud (עמוד הענן)—merited through Aharon—would press and iron the clothing of Klal Yisrael whilst they were in the Midbar (see Rashi, Eikev 8:4), reishis hageiz is given to Aharon's descendants to show appreciation.

Does Reishis HaGeiz Apply Only in Eretz Yisrael or Also in Chutz Laʼaretz?

The Rambam (Hilchos Bikkurim 10:1) and Shulchan Aruch (Y.D. 333:1) rule: ראשית הגז אינו נוהג אלא בארץ בין בפני הבית בין שלא בפני הבית "The mitzvah of reishis hageiz applies only in Eretz Yisrael, whether the Beis HaMikdash stands or not.” (Although it is not technically a land-dependent mitzvah like terumas and ma'asros, the Gemara derives from a drosha “nesinah” “nesinah” from terumah that it only applies in Eretz Yisrael.)

The Rema quotes the Tur: וי"א דבר תורה ראשית הגז נוהג אפי' בח"ל אלא שלא נהגו בן - "Some say it applies min haTorah even in Chutz Laʼaretz, but the custom is not to practice it."

The Gra writes: All poskim except the Tur hold it does not apply in Chutz Laʼaretz.1

Yet the Chasam Sofer (Y.D. 301) writes that he personally every single Yom Tov would shecht an animal, separate matnas kehunah and also give reishis hageiz. The Chasam Sofer lived in Chutz Laʼaretz, so we see he was stringent to fulfil the mitzvah of reishis hageiz even in Chutz LaAretz.

The Chafetz Chaim (Sefer HaMitzvos HaKatzar, Mitzvah 52) writes that some individuals are stringent to give reishis hageiz even outside Eretz Yisrael— and it is proper to do so.

The Pleisi's Doubt About Whether Someone in Chutz Laʼaretz Can Appoint a Shliach in Eretz Yisrael to Fulfill the Mitzvah of Matnas Kehunah for Him?

The Pleisi (Y.D. 61:6) writes:

Since there is a dispute whether the mitzvah of matnas kehunah applies in Chutz Laʼaretz or not, some righteous people send money with talmiday chachomim traveling to Eretz Yisrael, appointing them as agents to buy animals and to separate the matnas kehunah – the zero'a, lechoyayim and keivah, as well as the mitzvah of reishis hageiz – on their behalf and based on the rule שלוחו של אדם במותו – that an agent of a person is like the person himself, they fulfill the mitzvah of matnas kehunah.

However, the Pleisi concludes with doubt: “Since he himself cannot perform the mitzvah because he is far away, how can he appoint a shliach?” (He compares this to Tosfos in Nazir (12a) regarding separating challah.)

Questions of the Achronim on the Opinion of the Pleisi:

Baruch Ta'am

Boruch Ta'am writes that certainly no such words left the Pleisi's mouth. The rule of "if he cannot do it, he cannot appoint a shliach” applies only when one cannot perform the act halachically, not when one is prevented by distance.

He concludes that if the Pleisi had a doubt, the doubt would be if one can appoint a shliach before the obligation exists.

Beis Yitzchak (Y.D. 1:80)

The Beis Yitzchak asks the same question as Boruch Taʼam and he adds proof from the Gemara in Pesachim 92b. The Gemara teaches that if one is far away from the Beis HaMikdash on erev Pesach, and other people bring a korban Pesach for him it works. Tosfos explains, because he could technically arrive using a horse. We see that distance doesn't invalidate shlichus.

Chakrei Lev (E.Η. 46)

The Chikrei Lev writes that the Pleisi must be incorrect as according to the Pleisi how could a husband appoint a shliach to write a get, when most husbands who are divorcing their wives are unable to write one.

Additionally, we find that a husband can appoint a shliach to deliver a get to his wife who is in a different city, and we aren't worried that the husband isn't in that city. We see that distance doesn't prevent shlichus.

Kaf HaChaim (Y.D. 61:98) Quoting the Ben Ish Chai

The Kaf HaChaim quotes the Ben Ish Chai who writes that Rav Tzalach Somech rejected the above question. He held that the cases of kiddushin and gerushin are different as the one sending the shliach is able to do such an act in the city he is in, as one is able to perform kiddushin or gerushin in his city and that is enough of a reason to allow appointing a shliach. However, when it comes to appointing a shliach for matnas kehunah, one who lives in Chutz Laʼaretz is not able to do it in his city, therefore, who says he is able to appoint a shliach. However, the Ben Ish Chai himself cites many proofs that one is able to appoint a shliach for mitzvos that can only be performed in Eretz Yisrael.

Igros Moshe (Y.D. 1:219)

R' Moshe Feinsten also question the Pleisi as there is no requirement of “shlichus” by matnas kehunah, as the mitzvah is in the giving, not the separating. Therefore, as long as the Kohen gets it, it doesn't make a difference how.

How Much Wool Is Needed for the Mitzvah?

The Shulchan Aruch (Y.D. 333:9) writes: One must have at least five sheep. Their combined shearing must be 60 sela (≈1200 grams). Each sheep must produce at least 12 sela (≈240 grams). If even one sheep produces less than 12 sela, even if the total still amounts to 60 sela, one is still exempt.

The wool must weigh 1200 grams after it has been cleaned. Sometimes in order to have this amount after cleaning2 one needs as much as 2400 grams of raw wool (see Sefer Geiz Tzoinacha pg. 47, Biurim ois 6).

Why is the Mitzvah of Reishis HaGeiz Not Commonly Practiced Today?

We have seen how there is a mitzvah of reishis hageiz. We also saw that there is a machlokes about whether it applies in Chutz Laʼaretz or not, however, it seems that in Eretz Yisrael everyone agrees that it applies. The question therefore is, why are people not particular about fulfilling the mitzvah nowadays? (The same question applies with the other matnas kehunah as well – the zero'a, lechoyayim and keivah.)

The Rema in Darkei Moshe (Y.D. 286:4) writes: “Even though the custom is not to give gifts to Kohanim, one who does so is not acting with arrogance.” The Pleisi (61:6) brings that the Pri Chodosh and Lechem HaPanim bring the same thing from the Maharam. We see from here already that people weren't fulfilling the mitzvah. The question is, why has it become the custom not to fulfill this mitzvah?

The Opinion of the Beis Hillel that Reishis HaGeiz Doesn't Apply in Eretz Yisrael Nowadays

The Beis Hillel (Y.D. 333:1) is medayek from the Rema that mitzvah of reishis hageiz no longer applies today even in Eretz Yisrael.

The Shulchan Aruch writes: ראשית הגז אינו נוהג אלא בארץ בין בפני הבית בין שלא בפני הבית - "The mitzvah of reishis hageiz applies only in Eretz Yisrael, whether the Beis HaMikdash stands or not.” The Rema then adds: וי"א דבר תורה ראשית הגז נוהג אפי' בח"ל אלא שלא נהגו כן – "Some say it applies min haTorah even in Chutz La'aretz, but the custom is not to practice it."

The Beis Hillel learns that when the Rema writes “even in Chutz Laʼaretz, but the custom is not to practice it”, he means to say that the custom is not like anything the Rema mentioned, which means both in Eretz Yisrael and in Chutz Laʼaretz (since the Rema mentioned “even”).

He cites proof from the Rema in Hilchos Terumas U’maʼasros (Yoreh Deah 331:2) who writes: ויש חולקין וסבירא להו דחייבין עכשיו בארץ ישראל בתרומות ומעשרות מדאורייתא אך לא נהגו כן "Some argue and hold that the obligation to separate terumas and ma'asros in Eretz Yisrael is de'O'raisa, however, the custom is not like this." Over here the Rema clearly means to argue even with the custom in Eretz Yisrael, therefore, by reishis hageiz it is logical that he also is coming to argue with the custom in Eretz Yisrael. (The Beis Hillel has this same he’orah in Hilchos Matnas Kehunah, Yoreh Deah 61:21:3, see there.)

The Achronim Reject the Beis Hillel

The Birkay Yosef (Yoreh Deah 333:2) argues on the Beis Hillel and says that this is not the intention of the Rema and on the contrary all the mitzvos still apply in Eretz Yisrael – reishis hageiz, matnas kehunah and terumas uʼmaʼasros. He brings that the Pri Chodosh also disagrees with the Beis Hillel.

The Aruch HaShulchan (333:2) also argues and writes: “I don't know any reason for it not to apply. Meikar hadin it applies even in Chutz Laʼaretz, however, the custom is not to, however, in Eretz Yisrael there is no reason whatsoever for it not to apply. One who has yiras Shomayim and fears to do the correct thing, will make sure to fulfill the mitzvah if he is someone who owns sheep."

The Derech Emunah Defends the Beis Hillel

R' Chaim Kanievsky zt”l in Derech Emunah (Hilchos Bikkurim Perek 10, Tziyun Halachah 32) suggests that perhaps what the Beis Hillel means to say is that nowadays the mitzvah of reishis hageiz is no longer de'O'raisa, but not that it doesn't apply altogether.

According to this we can understand very well the Beis Hillel's proof from Hilchos Terumas U’maʼasros. Over there the Rema is coming to say that in Eretz Yisrael it is no longer de'O'raisa, but not that it doesn't apply at all. Perhaps by reishis hageiz as well, the Beis Hillel is understanding that the Rema is coming to say that nowadays even in Eretz Yisrael it is no longer de'O'raisa, but not that it doesn't apply altogether.

Machlokes Rishonim if the Mitzvah of Reishis HaGeiz Nowadays Is De'O'raisa or Derabbanan

L'halachah there is a machlokes Rishonim if the mitzvah of reishis hageiz nowadays is de’O'raisa or derabbanan. The Tur holds that it is de'O'raisa even in Chutz La'aretz. However, the Rambam (Hilchos Bikkurim 10:1) maintains that it has the same status as terumah. By terumah the Rambam (1:26) writes that nowadays it is derabbanan because it says בבואכם "when you come" and we darshen בביאת כולכם ולא בביאת מקצתכם – “when the entire Klal Yisrael comes to Eretz Yisrael and not only a part". Therefore, according to the Rambam, nowadays it would be derabbanan.

במצוותיו חפץ מאד

R' Tzvi Rotberg shlita who was a close talmid of R' Chaim Kanievsky zt"l for many years, related the following:

He had a special affection for fulfilling "rare mitzvos.” (Once he told me that a Jew should, at least once in his life, fulfill every mitzvah that he is able to.)

Once, we went together up to the roof of the Steipler's house to fulfill shiluach hakein. As we climbed up, a noise was made near the nest and the dove flew away. He succeeded in taking the eggs and said to me: “I have fulfilled the mitzvah. Now I will declare them ownerless, and when the dove returns, you will fulfill it.” (He held that one can fulfill the mitzvah multiple times; there is discussion about this, and he proved it from the wording of Chazal.)

Another time, when we were walking on the street where today Ezra Street is located, we saw a huge flock of sheep with an Arab shepherd. Rav Chaim said that we should ask him whose sheep they were — perhaps they belonged to a Jew, and we could fulfill the mitzvah of reishis hageiz.

The shepherd told us that he owned the sheep, but Rav Chaim said to me that he doubted the truth of his claim and that it was worthwhile to investigate further. Indeed, we discovered that the sheep belonged to a Jew, an immigrant from Romania, who lived where the neighborhood of Ramat Elchanan is today.

We went to his home and had to explain to him what we wanted. When he understood, he told us when the shearing would take place. Then we went there together — the Steipler, his son Rav Chaim, Rav Dovid Frankel, and myself (yibodel lechaim) – and we purchased five sheep from him and fulfilled the mitzvah.a

He told us that when he was a bochur in Lomza, he asked the Rav of Petach Tikva, Rav Reuven Katz, that if his Beis Din would perform a chalitzah, he wanted to be present at the end, because the Torah says that all those standing there recite “Beis chalutz hanal,” and he wanted to fulfill that mitzvah as well. And so it was.

Additional Reasons for Why We Aren't Particular to Fulfill the Mitzvah of Reishis HaGeiz Nowadays

R' Moshe Sternbuch in Shu”t Teshuvos V’Hanhagos (3:342) explains: There is a major difference between terumos and maʼasros which must be separated even from a tiny amount of produce and reishis hageiz which requires a minimum of 60 sela of wool (about 1200 grams of processed wool). Additionally, this amount of wool refers to white, processed wool, which could be 2400 grams of raw wool before whitening. The reason so much wool is needed is because the main purpose behind the mitzvah is so that Kohen has wool to use to make clothing. Since the purpose of giving the Kohen the wool is so he can make clothing from it, if the wool is not going to be used for clothing, it would seem that one is exempt from the mitzvah.

Also, if the wool is hard or not wearable (see Rashi Chullin 137a — because it does not warm), it is exempt from reishis hageiz (Shulchan Aruch Y.D. 333:2, see Derech Emunah, Hilchos Bikkurim 10:5 who explains this exemption at length). This has major practical relevance today, because most sheep wool in Eretz Yisrael is not suitable for clothing, since it is not soft or fine.

Based on the above two reasons: That nowadays the wool isn't going to be used for making clothing, and the fact that in most cases it is unsuitable for clothing, R' Moshe Sternbuch suggests that we can understand why people don't fulfill the mitzvah nowadays.

Interestingly, although R' Moshe Sternbuch shlita has a Teshuvah explaining why we don't fulfill the mitzvah of reishis hageiz nowadays, he himself was particular to fulfill the mitzvah.

We Don't Have Verified Kohanim (כהנים מיוחסים) Nowadays

R' Yom Tov Sanger shlita brings a much simpler reason for why people don't fulfill the mitzvah of reishis hageiz nowadays, which he heard from Rav Avraham Rosenberg zt"l (son of the Rosh Yeshivah of Slabodka):

According to the Minchas Chinuch (Mitzvah 508:9)3 there is no mitzvah in the act of separating reishis hageiz and as long as it has not been given to the Kohen, the owner can change his mind, because the wool is still chullin — there is no “designation” (challos krias shem) that takes effect.4 Since the mitzvah is only in the giving the wool to a Kohen and today we have no verified Kohanim (kohanim meyuchosim), only presumed Kohanim (Kohanei chazakah), there is no chiyuv to give reishis hageiz nowadays.

The Status of Kohanim today

It is important to note that whether we have verified Kohanim nowadays or not is a big discussion and really needs an entire booklet to itself. However, it is important to mention that there is a big machlokes haposkim if one can exempt himself from giving terumah to Kohanim based on such an argument

The Maharit (1:85 and 149) strongly opposes those who exempt themselves from giving gifts to Kohanim because of doubts. He proves that Kohanim today are fully presumed Kohanim for all gifts of Kehunah, terumos u'ma'asros, and pidyon haben and there is no reason not to give them nowadays.

However, the Yam Shel Shlomah (Bava Kama 5:35) writes that today we do not have definite Kohanim, because over the long exile their lineage became mixed and even if not all Kohanim got mixed up, at least a majority or close to a majority did. This is also brought down by the Magen Avraham (457:9), Shach (Yoreh Deah 322:9) and Chazon Ish (Sheviis, siman 5 s.k. 4 and s.k. 12).

The Magen Avraham explains that this answers why people do not strictly keep the mitzvah of “vekidashto” nowadays.

Using Reishis HaGeiz Wool for Tzitzis

The Derech Emunah (Hilchos Bikkurim 10:124) brings that some use reishis hageiz wool for making tzitzis. They quote the Imrei Emes zt"l, who explained: “Since one mitzvah was done with it, another mitzvah should be done with it" (דהואיל ואיתעביד ביה מצוה חדא ליתעביד ביה מצוה אחריתי).

However, R' Moshe Sternbuch in Teshuvos V’Hanhagos maintains that this is still not enough of a reason to say one is obligated in the mitzvah nowadays. Firstly, using wool only for tzitzis strings is not considered using it for clothing, which is the main purpose of reishis hageiz. Secondly, even if the tzitzis are made from wool given to the Kohen, if the rest of the wool is not used for clothing, the main requirement of reishis hageiz is not being fulfilled.

When Do We Say the Halachic Principle of “Since One Mitzvah Was Done with It, Do Another"

R' Moshe Sternbuch points out another difficulty with the above. The source for the principle of using mitzvah items to perform additional mitzvos, is the case of using eruv tavshilin or eruv chatzeiros bread for lechem mishneh (Berachos 39b; Shabbos 117b). In these cases, the bread itself is the item of the mitzvah (חפצא דמצוה), however, reishis hageiz is property given to a Kohen, however, it is not a mitzvah object. It is similar to tzedokah given to a poor person; pidyon haben money given to a Kohen; or terumah given to a Kohen. In these cases, we don't find that the poor person should use his tzedokah money he received to fulfill a mitzvah, or that a Kohen should use terumah that he received for lechem mishneh.

R' Moshe adds: Even if there is such an idea, it applies only to the person who performed the first mitzvah, however, it certainly doesn't apply to a second person. In the case of reishis hageiz, the owner of the sheep fulfills a mitzvah not the Kohen, therefore, even if the Kohen does use it to make tzitzis the rule of "since one mitzvah was done with it, another mitzvah should be done with it” won't apply, since the two mitzvos are being done by different people.

R' Moshe concludes by criticizing those who raise the price of tzitzis by claiming they are "more mehudar” because they come from reishis hageiz wool.

A Distinction

Some point out a major difference between the two cases. Using reishis hageiz wool for tzitzis means using the same wool for a second mitzvah, which is like using the bread of eruv tavshilin for lechem mishneh on Shabbos. We also find this idea in the Mishnah Berurah (Hilchos Chanukah 673:27) who writes that there is a mitzvah min hamuvchar to buy leftover wax from shul candles for Chanukah candles based on the rule of “since one mitzvah was done with it, another mitzvah should be done with it” (see also Mishnah Berurah 297:8 about using hadassim from the lulav for besamim and Mishnah Berurah 681:1 about using the havdolah candle to light the Chanukah candles). However, using pidyon haben money or tzedakah money for another mitzvah means taking the money and buying something else for the mitzvah, but not using the actual money itself, since the money itself is not being used for the second mitzvah we don't apply the rule of "since one mitzvah was done with it, another mitzvah should be done with it".

[It is worth pointing out that sometimes, however, a mitzvah can in fact be fulfilled with the money one receives from pidyon haben. The sefer HaKohen HaGadol Me'echav (about Rav Aharon Cohen zt"l, Rosh Yeshivas Chevron pg. 27) and Maaseh Ish (Vol. 2, pg. 124) both relate:

When Rav Meir Tzvi Bergman shlita had his firstborn son, he purchased pure silver coins from the Chazon Ish zt"l for the pidyon haben. The Chazon Ish instructed him not to tell the Kohen beforehand that he intended to buy the coins back afterward, to ensure that the gift would be complete and wholehearted.

The Kohen at the pidyon haben was Rav Avraham Mordechai Cohen zt"l (father of Rav Aharon Cohen zt”l). After the meal, Rav Bergman asked to buy the coins back so he could return them to the Chazon Ish — but the Kohen apologized, explaining that he had already donated them to tzedokah.

He explained that when giving tzedokah, he always worries about the purity of the money, since the Torah says: צדק משלך ותן לו - "Give him tzedokah from your own righteousness.” And Chazal say: אין קטיגור נעשה סניגור - "A prosecutor cannot become a defender.” Therefore, when he receives money that is unquestionably pure, he immediately donates it to tzedokah.

In the end they arranged with the gabbah tzedokah that when he empties the kuppah [box] tzedokah he would sell back the coins so that they could be returned to the Chazon Ish. This is what they did. When the coins finally reached the Chazon Ish and it was explained what the delay was, the Chazon Ish exclaimed: "An ehrlicher Yid!" In this story we see that coins used for pidyon haben were in fact used for two mitzvos – pidyon haben and tzedokah. However, generally speaking this isn't done.]

Reishis HaGeiz by Rav Elyashiv zt"l

A Yid living in a certain moshav brought five sheep to Rav Elyashiv zt"l so he could fulfill the mitzvah of reishis hageiz. Rav Elyashiv bought the sheep, gave the wool to a Kohen, and was very happy to fulfill the mitzvah.

Afterwards, the seller asked to buy the sheep back, however, Rav Elyashiv refused and said they must be slaughtered immediately, because it is forbidden to raise small livestock in Eretz Yisrael, as stated in Demai (2:3) and Bava Kama (79b).

Machlokes HaPoskim Whether It Is Forbidden to Raise Small Animals in Eretz Yisrael Nowadays

The seller argued back to Rav Elyashiv that the Shulchan Aruch (Choshen Mishpat 40:1) rules: אין מגדלים בהמה דקה בארץ ישראל מפני שדרכם לרעות בשדות של אחרים והיזקם מצוי אבל מגדלים בסוריא ובמדברות שבארץ ישראל והאידנא שאין מצוי שיהיו לישראל בארץ ישראל שדות נראה דשרי – "One may not raise small livestock in Eretz Yisrael because they graze in other people's fields and they often cause damage, however, one may raise them in Suriya and in the desserts of Eretz Yisrael. Nowadays, since it is not common for Jews to own fields in Eretz Yisrael, it appears that it would be allowed.” So, we see that nowadays it is allowed.

R' Elchonon in Kovetz Shiurim (Bava Kama ois 87) explains that although normally an enactment that was made by a Beis Din needs another Beis Din which is of greater power to annul it even if the original reason no longer applies, in this case since it was always permissible to raise animals in Eretz Yisrael in forests and deserts it seems they did not make a blanket decree and it was only made where the reason existed, therefore, if Jews wouldn't commonly own fields in Eretz Yisrael it would be okay.

Has The Prohibition Returned?

However, it is well known that many poskim have pointed out, that today many fields in Eretz Yisrael are owned by Jews, therefore, it would seem that the original prohibition to raise animals in Eretz Yisrael has returned, even according to the Shulchan Aruch (this is implicit in the Urim VeTumim, siman 34, Urim s.k. 27).

The Shevet HaLevi (4:227) also points this out and he doesn't understand what people rely on to be lenient nowadays. Although, the Chazon Ish said: Since the Shulchan Aruch was lenient, it is hard to forbid it nowadays even if the reason doesn't apply. However, he adds that a talmid chacham should be strict (Orchos Rabbeinu, Vol. 1, pg. 379).

R' Elyashiv, however, held strongly that since Jews today do have fields in Eretz Yisrael, the prohibition of raising small livestock has returned to full force.

Practically, after a lengthy discussion between Rav Elyashiv and the seller from the moshav, the sheep were nevertheless sold back to the seller. (The seller later reported that within a week all five sheep died — recorded in Chashukei Chemed on Zeraim, pg. 274.)

Leniency of the Rema MiPano

The Shu't Rema MiPano (siman 85) writes that one may be lenient if the animal is kept in a protected area and fed there. Although the Gemara (Bava Kama 80a) relates that a pious man tied a goat to his bedpost and the Chachomim still protested, that was only because he was a “pious man and a great person."

However, Rav Elyashiv zt”l (Kovetz Teshuvos 4:199) notes: That Tosfos (Bava Kama 79b, d.h Ein M'gadelin) writes explicitly that the prohibition applies even inside a house. The Tur rules likewise and the Beis Yosef brings proof from the story of the goat tied to the bedpost, from which we see that even inside a house is forbidden. The Sma (C.M. 409:1) also rules this way without dissent. The reason is: Small livestock tend to escape and cause damage. Chazal therefore prohibited raising them lest they slip out unnoticed and damage others' fields.

The Opinion of the Har Tzvi that the Prohibition Was Annulled

Rav Tzvi Pesach Frank zt"l (hagaʼos on Tur Choshen Mishpat, siman 409; and Shu"t Har Tzvi, Choshen Mishpat siman 136) argues that since at one point in time the prohibition was nullified, and raising small livestock in Eretz Yisrael became permitted, it does not automatically return unless a new Sanhedrin reinstates it — and since we don't have the power to make new decrees nowadays, the original decree has yet to be reinstated.

He brings proof from the Yerushalmi in Sanhedrin (3:5):

The Mishnah in Shevi'is (4:2) teaches: A field plowed during shemitah may not be sown the following year as a penalty. Yet the Yerushalmi explains that since there was a time when Klal Yisrael had to plant such fields on motzei shemitah due to an order of the king, the penalty was annulled. And once it was annulled it was annulled forever. The Har Tzvi proves from here, if Chazal make a gezeirah, and for some reason the gezeirah is annulled, it remains annulled forever and never returns.

The Achronim Challenge the Opinion of the Har Tzvi

Many Achronim challenge the Har Tzvi's reasoning: The Shulchan Aruch states clearly: The only reason to permit raising small livestock today in Eretz Yisrael is that Jews do not commonly own fields. Thus, without that reason, the prohibition remains.

Rav Elyashiv zt"l argued: That from the Tur's wording it is clear that the gezeirah was never annulled. He also brings that from the Beis Yosef we see that prohibition is not limited to Eretz Yisrael and it applies in any Jewish settlement — the only leniency is when Jews do not own fields. It is clear from the Tur and Beis Yosef that the gezeirah was never annulled, and only in a time and place where there are no Jewish fields is their room for leniency, since today we have Jewish fields, it is obvious that the prohibition remains in place.

The Opinion of Those Who Are Lenient to Raise Small Animals When There is Mutual Forgiveness Among Field Owners

Despite the above, Rav Elyashiv zt"l writes at the end of his Teshuvah that he saw in the bylaws of Petach Tikva (apparently approved by the Maharil Diskin zt"l) the following:

"Regarding the prohibition of raising small livestock — we have accepted by communal ordinance that each person forgives his fellow. Everyone is permitted to raise sheep (but not goats, which cause more damage). If damage occurs and is known, payment must be made. But damage that neither party is aware of is mutually forgiven.”

A similar idea appears in the Tzitz Eliezer (7:24). He writes: New settlements were founded with the understanding that raising small livestock would be essential for livelihood, and therefore residents forgive each other in advance.

Rav Shlomah Zalman Auerbach Uncertainty

Rav Shlomah Zalman Auerbach zt”l (Minchas Shlomah on Bava Kama, Vol. 3, pg. 248) also discusses the shailah of raising small livestock today in Eretz Yisrael and if perhaps the prohibition has returned since nowadays many fields in Eretz Yisrael are owned by Jews. He suggests: Since the way we bring up animals and graze them is significantly different to how it used to be, perhaps the original decree no longer applies. He concludes that he is uncertain.

The Solution of the Shevet HaLevi Regarding How to Return Sheep After They Are Purchased to Fulfill the Mitzvah of Reishis HaGeiz

The Shu't Shevet HaLevi (11:258) was asked: If one buys sheep to fulfill the mitzvah of reishis hageiz, how can he sell them back afterward, especially since he himself holds (4:227) holds that the prohibition applies today?

He answered: Chazal only prohibited raising small livestock near Jewish fields and vineyards. Therefore, one should buy sheep from places which don't have this issue such as places near Midbar Yehudah, the Negev or areas nearby to non-Jews, in such areas even if the sheep escape there is no concern of them stealing and ruining Jewish fields.

How Can Kashrus Agencies Certify Goat Milk and Cheese If Raising Goats is Forbidden?

R' Moshe Sternbuch in Shu”t Teshuvos V’Hanhagos (4:322) discusses how kashrus agencies can certify goat milk and cheese if raising goats is prohibited? Surely by giving a hechsher they are supporting an encouraging those that do aveiros.

He explains: The gezeirah [decree] applied only when animals grazed freely in open fields, damaging others' property. But the Gemara explicitly permits raising them in the desert, where there is no concern of theft. Today, most goats are raised in moshavim or kibbutzim where the goats are given their own grazing land. Therefore, there is no concern of damage, and the decree does not apply — similar to places where most land is owned by non-Jews or is desert.

A Defense for Why People Do Not Fulfill the Mitzvah of Reishis HaGeiz Today

Based on all the above, one can suggest another justification for why people are not so particular to fulfill the mitzvah of reishis hageiz nowadays.

On the one hand, fulfilling reishis hageiz is a mitzvah. On the other hand, if raising small livestock is prohibited today, it becomes difficult to return the sheep to the seller after fulfilling the mitzvah.

Additionally, perhaps the mitzvah is not fulfilled properly when giving the wool to today's Kohanim (like we mentioned above).

Therefore, people prefer to remain in a state of “shev v’al taʼaseh” — refraining from action — rather than enter a situation with halachic complications.