How Will I Buy My Esrog This Year?

esrogimAs the shmittah year comes to a close, and the laws prohibiting agricultural work phase out, several halachos will still apply to the special produce that grew during shmittah. One issue that affects people living in chutz la’aretz is the status of the esrogim arriving for Sukkos. Before delving into some of the controversial issues involved, let us first discuss the basics:

The Torah imbues shmittah produce with a special sanctity called kedushas shvi’is. As a result produce that grew during shmittah:

  1. IS OWNERLESS — HEFKER

The owner of a field or orchard must treat whatever grows on his land as ownerless, allowing others to pick, without charge, as much as their families can use. Furthermore, one may not harvest the produce in order to sell it commercially (Tosefta, Shvi’is 5:7).

  1. CANNOT BE SOLD COMMERCIALLY

One may not sell shmittah produce in a business manner (Rambam, Hil. Shmittah 6:1). For example, shmittah produce may not be sold by weight or measure (Mishnah Shvi’is 8:3), nor sold in a regular store (Yerushalmi Shvi’is 7:1).

  1. SANCTIFIES ITS EXCHANGE – TOFESES DAMAV

If one trades or sells shmittah produce, whatever one receives in exchange becomes imbued with kedushas shvi’is and must be treated with all the laws mentioned above. Even so, the original produce always maintains its kedushas shvi’is (Sukkah 40b).

  1. MAY BE PROHIBITED IF THE HALACHOS ARE VIOLATED –– SHAMUR VENEEVAD

According to many (and perhaps most) Rishonim, if a farmer did not allow people to pick from his fields, the shmittah produce that grew there becomes prohibited (see, for example, Raavad and Baal HaMaor to Sukkah 39a). Similarly, many authorities prohibit consuming produce that was tended in a way that violated the agricultural laws of shmittah (Ramban, Yevamos 122a).

  1. MUST EVENTUALLY BE “ELIMINATED” — BIUR

One has the right to consume shmittah produce as long as it is still available in the field. Once no more produce remains in the field, special laws called biur shvi’is apply, which I will explain later.

  1. MAY NOT BE EXPORTED

One may not export shmittah produce outside Eretz Yisroel (Mishnah Shvi’is 6:5). I will discuss shortly this issue’s impact on the export of shmittah esrogim.

  1. ARE ONLY FOR JEWISH CONSUMPTION

Shmittah produce is meant for Jewish consumption; one may not give or sell kedushas shvi’is produce to a gentile, although one may have the gentile join one’s meal (Rambam, Hil. Shmittah 5:13 as explained by Mahari Korkos).

  1. ARE FOR FOOD AND NOT FOR WASTE

One may not ruin shmittah produce (Gemara Pesachim 52b). What types of “ruining” did the Torah prohibit? One may not cook foods that are usually eaten raw, such as cucumbers or oranges, nor may one eat raw any produce that is usually cooked, such as potatoes (Yerushalmi, Shvi’is 8:2; Rambam, Hil. Shvi’is 5:3). Similarly, one may feed shmittah produce to animals only if it is unfit for human consumption.

The prohibition is only to actively ruin shmittah produce; one is not required to prevent it from spoiling. For example, when one finishes using a shmittah esrog on Hoshanah Rabbah, one may not chop up the esrog so that it will rot faster, but one is not required to wrap it up so that it does not dry out. Once shmittah produce has become useless, there is no mitzvah to treat it in any special way, and it may be thrown away.

According to accepted opinion, there is no obligation to eat shmittah food – rather, the Torah permits eating it, if the rules are followed (Chazon Ish, Hil. Shvi’is 14:10).

BUYING A SHMITTAH ESROG

Since shmittah esrogim must be treated as ownerless, the grower may not harvest them for commercial sale or market them in the usual fashion. Furthermore, if someone sells the esrog, he must treat the money received in exchange with all the laws of shmittah sanctity. To remove this sanctity, he must use this money to purchase food that he will now eat according to the laws of shmittah food. When he does this, the kedusha on the money transfers onto the food.

This leads us to an interesting question. If no one may profit from the sale of a shmittah esrog, why are tens of thousands of esrogim being sold? Are people violating shmittah when they sell these esrogim?

WELCOME TO OTZAR BEIS DIN!

The answer is that when using an otzar beis din in the correct way, the esrogim are distributed and not sold. What is an otzar beis din?

In an article published here towards the beginning of shmittah year, I detailed the halachic and historical background of the otzar beis din. Allow me to briefly review the concept and then explain how this permits the distribution of esrogim.

WHAT IS AN OTZAR BEIS DIN?

Literally, otzar beis din means “a storehouse operated by beis din.”

As mentioned above, the owner of an orchard may not harvest his produce for sale, and he must allow individuals to help themselves to what their family may use. But, what about people who live far from the orchard and find it difficult to pick fruit for themselves? How will most people ever utilize their right to pick shmittah fruit?

Enter the otzar beis din to help out! Beis din, representing the public, hires people who know how to carefully pick and clean the esrogim, evaluate their kashrus, purchase the wrapping materials and boxes, and pack and ship the esrogim to the consumer. The beis din represents the public interest, supervises the hiring of necessary labor, the rental of equipment, and the delivery of the esrogim to a convenient distribution center near the consumer.

Obviously, no one expects the pickers, sorters, truckers, and other laborers to work as unpaid volunteers; they, also, are entitled to earn a living. Similarly, the managers who coordinate this project are also entitled to an appropriate wage for their efforts. Furthermore, there is no reason why beis din cannot hire the owner of the orchard to supervise this massive project, paying him a wage appropriate to his significant skills in knowing how to manage this operation.

WHO PAYS FOR OTZAR BEIS DIN SERVICES?

The otzar beis din divides these costs among the consumers. The charges to the esrog user should reflect the actual expenses incurred in bringing the esrogim to their consumers, and may not include any charge or profit for the finished product (Minchas Shelomoh, Shvi’is 9:8 pg. 250). Thus, otzar beis din products should cost less than regular retail prices for the same items. (See Yerushalmi 8:3 that shvi’is produce should be less expensive than regular produce.)

All the halachos of shmittah apply to otzar beis din produce, which therefore may not be sold for profit. Acquiring from an otzar beis din is not really “purchasing,” since you are not buying the fruit from anyone, but are receiving a distribution – your payment is exclusively for necessary operating costs. For this reason, if the otzar beis din is run correctly, the money paid for its products does not acquire kedushas shvi’is, because it is paid not in exchange for the shmittah fruit, but as compensation for expenses (Minchas Shelomoh, Shvi’is 9:8 pg. 250).

Although many otzarei batei din allow sellers to grade esrogim according to quality, a particularly beautiful esrog cannot command a price any higher than any other esrog in its general category, and the price of the entire category must reflect only the actual costs incurred. Selling an esrog at a higher price than this violates the rules of the otzar beis din and the laws of shmittah. In addition, the money received would be in exchange for a purchase and consequently have kedushas shvi’is that requires appropriate care. As a result, negotiating a particularly high price for a specifically beautiful esrog is certainly forbidden.

BIUR – ELIMINATION

At this point in our discussion, we need to explain the concept of biur shvi’is. One requirement of shmittah produce is that when it is no longer available in the field, it becomes subject to biur. The word biur literally means elimination, as in biur chometz, which refers to the destruction of chometz performed each year before Pesach. Biur shvi’is means that one removes shmittah produce from one’s possession when the biur date for this species arrives.

Although the Rishonim dispute exactly what biur shvi’is entails, we rule that it means declaring ownerless (hefker) any shmittah produce in one’s possession (Ramban, Vayikra 25:7; cf. Rashi, Pesachim 52b s.v. mishum and Rambam, Hil. Shmittah 7:3 for alternative approaches.) For example, let us say that I picked shmittah apricots and canned them as jam. When no more apricots are available in the field, I must take the remaining jam and declare it hefker in the presence of three people (Yerushalmi, Shvi’is 9:5). I may do this in front of three close friends who will probably not take the jam after my declaration; it is sufficient that they have the right to take possession. If someone fails to perform biur, the shmittah produce becomes prohibited for consumption.

Produce still in the possession of an otzar beis din at the time of biur is exempt from being declared hefker. The reason is that this product is still without an owner – the otzar beis din is a distribution center, not an owner. However, produce originally distributed through an otzar beis din and now in private possession must be declared hefker. We will discuss shortly how this impacts on our esrogim.

HAVLA’AH

At this point, we must discuss a very misunderstood concept called havla’ah, which means that one includes the price of one item with another. The Gemara (Sukkah 39a) describes using havla’ah to “purchase” an esrog that has shmittah sanctity without the money received becoming sanctified with kedushas shvi’is. For example, Reuven wants to buy an esrog from Shimon; however, Shimon does not want the money he receives to have kedushas shvi’is. Can he avoid this?

Yes, through a strategy Chazal called havla’ah, in which Shimon simultaneously sells a different item to Reuven that has no kedushas shvi’is, such as a lulav. The lulav is sold at a high price, and the esrog accompanies it as a gift. Although everyone realizes that this is a ruse to avoid imbuing the sales money with kedushas shvi’is, the ruse works and the money does not have kedushas shvi’is.

HAVLA’AH PROBLEMS UNIQUE TO OTZAR BEIS DIN

However, it is inconsistent to purchase an esrog with havla’ah and acquire it through otzar beis din at the same time. Otzar beis din means that I am not purchasing the esrog, but receiving it from those who picked it for me. I am paying, not for the fruit, which is rightfully mine, but for the expenses, just as I compensate a friend who ran an errand on my behalf. Since the money is for expenses and not for the fruit, how can the otzar beis din agent charge extra for the esrog by saying he is selling an expensive lulav? The moment I pay an unwarranted sum for the esrog, I have nullified his role as agent, and instead, he is engaging in commercial trade in violation of shmittah. Thus, most instances of havla’ah cannot be utilized when someone is selling shmittah produce through an otzar beis din (Maadanei Aretz 7:2; note to Minchas Shelomoh, Shvi’is 9:8 pg. 251; see also Sfas Emes to Sukkah 39a).

Although I am aware of esrogim dealers who sell expensive otzar beis din esrogim through havla’ah, I know of no halachically acceptable method to do this. Hopefully, some authority holds that one may use otzar beis din in this way. However, Rav Shelomoh Zalman Auerbach, z”tl, and Rav Elyashiv, z”tl, both prohibited this practice.

EXPORT

Having explained many of the issues of shmittah esrogim, we are still left with one major subject to discuss. At the beginning of this article, I mentioned that the Mishnah prohibits exporting shmittah produce to chutz la’aretz (Mishnah Shvi’is 6:5). If that is true, how are so many thousands of Israeli-grown esrogim arriving in chutz la’aretz? Are the shippers all violating shmittah?

This question has been the subject of much halachic debate within the last century. I am aware of several innovative approaches to permit the export.

A very prominent Eretz Yisroel talmid chacham, Rav Yehoshua Tzvi Michal Shapiro, passed away in the early twentieth century leaving behind extensive notes and correspondence on a wide range of halachic areas. These materials were edited and published in 5680 (1920) by the renowned gadol, Rav Yaakov Moshe Charlap, under the title Tzitz HaKodesh. In his responsum addressing the export of esrogim to chutz la’aretz, Rav Shapiro suggests three creative heterim to permit exporting esrogim to chutz la’aretz. The first approach assumes that Chazal prohibited exporting shmittah produce out of concern that the fruit would be eaten in chutz la’aretz, since shmittah produce may be eaten only in Eretz Yisroel. Indeed, there are early authorities, most notably the Raavad, who rule that shmittah produce may be eaten only in Eretz Yisroel, even though this position is by no means universally accepted. (Raavad commentary to Sifra, Behar 1:9; responsum of Rav Avraham Eizen published in Beis HaRidbaz 5:18; cf. Ridbaz, ad locum, who contends that this approach is not accepted halacha.)

Assuming that Chazal prohibited exporting shmittah produce to chutz la’aretz out of concern that it might be eaten there, the Tzitz HaKodesh reasons that it is permitted to export esrogim, since they are not usually eaten (Tzitz HaKodesh Volume 1 #15:4).

The Tzitz HaKodesh suggests two other ingenious methods whereby one could legitimately export esrogim, including a suggestion that a gentile ship them. The other option contends that one may ship shmittah produce to chutz la’aretz to fulfill the mitzvah, if one stipulates that they are returned to Eretz Yisroel afterwards. (By the way, several shmittos ago, the esrog I purchased contained such instructions inside the box, obviously based on this psak.)

Another authority suggests a different rationale to permit exporting shmittah esrogim. He cites sources that the prohibition to export shmittah produce is because the biur of all shmittah produce must be in Eretz Yisroel, and Chazal were concerned that the fruit may remain in chutz la’aretz until the time for biur arrives. He then contends that the law of biur does not apply to esrogim, since some esrogim always remain on the tree. Since esrogim are always available in the field, the law of biur does not apply to esrogim, and the prohibition to export is similarly inapplicable (Beis Ridbaz 5:18; however, cf. Minchas Shelomoh, Shvi’is 6:5).

IMPORTING ESROGIM FROM ERETZ YISROEL

Rav Moshe Feinstein accepted none of these rationales to permit export of shmittah esrogim. Nevertheless, he ruled that the importer does not violate halacha by ordering shmittah esrogim from Israel, since the exporter is acting on the basis of a lenient psak (Shu”t Igros Moshe, Orach Chayim 1:186).

WHAT DO I DO WITH MY ESROG?

For the most part, those living in North America are concerned less about whether they may import esrogim from Eretz Yisroel, and more about what to do with such an esrog after Sukkos. The esrog keeps its kedushas shvi’is until it becomes inedible, and one may not actively facilitate its decay process nor ruin it in any way.

According to one approach suggested by the Tzitz HaKodesh, one may be required to ship the esrog back to Eretz Yisroel after Sukkos. However, most authorities do not require this.

Assuming that return shipping is not required, one still may not destroy the esrog after Sukkos, but one is not required to preserve it. Therefore, the simplest solution is to remember not to wrap up the esrog on Hoshanah Rabbah. Without wrapping or refrigeration, the esrog will soon dry out and become inedible. At that point, one may dispose of it.

When we look around the shul on Sukkos and see everyone holding his own set of arba’ah minim, we should sing praises to Hashem for helping us fulfill these mitzvos so easily in comparison to earlier times, when it was common for an entire community to share one set. At the same time, we should remember the modern farmer in Israel who observed shmittah with true mesiras nefesh, thereby attesting to the message of shmittah — that the Ribbono Shel Olam created the world in six days and rested on the seventh.