heter mechirah – RabbiKaganoff.com

A Shmittah Glossary

This Shabbos is parshas Ki Savo, 10 days before Rosh Hashanah of shmittah year.

We are at the end of the sixth year of the shmittah cycle. Most chutz la’aretz residents are not that familiar with the laws of shmittah that will affect those who live in Eretz Yisroel every day next year. Actually, the laws can and do affect people living in chutz la’aretz also. This article will focus on explaining a basic glossary of shmittah-related terms.

Among the terms that we will learn are the following:

Biur

Havla’ah

Heter mechirah

Heter otzar beis din

Issur sechorah

Kedushas shvi’is

Ne’evad

Otzar beis din

Pach shvi’is

Sefichin

Shamur

Tefisas damim

First, let us discuss the basics:

Basic laws of the land

In Parshah Behar, the Torah (Vayikra 25:1-7) teaches that every seventh year is shmittah. We are prohibited from plowing, planting or working the land of Eretz Yisroel in any way and must leave our land fallow. It is even prohibited to have a gentile work a Jew’s land (Avodah Zarah 15b), just as one may not hire a gentile to do work on Shabbos that a Jew may not do. The owner of a field or orchard must treat whatever grows on his land as ownerless, allowing others to enter his field or orchard to pick, without charge, as much as their families can use. The landowner himself also may pick as much as his family will eat (see Rambam, Hilchos Shmittah 4:1).

The landowner should make sure that others know that they may help themselves to the produce. One may not sell, in a business manner, the produce that grows on its own.

Kedushas shvi’is

The Torah declared vehoysah shabbas ha’aretz lochem le’ochlah, “the produce of the shmittah should be used only for food” (Vayikra 25:6), thereby imbuing the fruits and vegetables that grow in shmittah year with special sanctity, called kedushas shvi’is. There are many ramifications of this status, such as, the produce that grows during shmittah year should be used only for consumption and should be eaten (or drunk) only in the usual way. For example, one may not cook foods that are usually eaten raw, nor may one eat raw produce that is usually cooked (Yerushalmi, Shvi’is 8:2; Rambam, Hilchos Shvi’is 5:3). One may not eat raw shmittah potatoes, nor may one cook shmittah cucumbers or oranges. It would certainly be prohibited to use shmittah corn for gasohol or any other form of biofuel.

Contemporary authorities dispute whether one may add shmittah oranges or apricots to a recipe for roast or cake. Even though the fruit adds taste to the roast or cake, many poskim prohibit this cooking or baking, since these types of fruit are usually eaten raw (Shu”t Mishpat Cohen #85). Others permit this if it is a usual way of eating these fruits (Mishpetei Aretz page 172, footnote 10).

Similarly, juicing vegetables and most kinds of fruit is considered “ruining” the shmittah produce and is prohibited, although one may press grapes, olives and lemons, since the juice and oil of these fruits are considered superior to the fruit itself. Many contemporary authorities permit pressing oranges and grapefruits, provided one treats the remaining pulp with kedushas shvi’is. Even these authorities prohibit juicing most other fruit, such as apples and pears (Minchas Shlomoh, Shvi’is pg. 185).

Food and not feed

One may feed shmittah produce to animals only when it is not fit for human consumption, such as peels and seeds that people do not usually eat (Rambam, Hilchos Shmittah 5:5). Last shmittah, a neighbor of mine, or perhaps his turtle, had a problem: The turtle is fond of lettuce, and won’t eat grass. One may feed animals grass that grew in Eretz Yisroel during shmittah, but one may not feed them lettuce that grew during shmittah.

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 invite a gentile to join your meal that includes shmittah food (Rambam, Hilchos Shmittah 5:13 as explained by Mahari Korkos).

Although some authorities rule that there is a mitzvah to eat shmittah produce, most contend that there is no obligation to eat shmittah food – rather, the Torah permits us to eat it (Chazon Ish, Hilchos Shvi’is 14:10).

Don’t destroy edibles

One may not actively destroy shmittah produce suitable for human consumption. Therefore, one who has excess shvi’is produce may not trash it in the usual way.

Peels that are commonly eaten, such as apple peels, still have kedushas shvi’is and may not simply be disposed. Instead, we place these peels in a plastic bag and then place the bag in a small bin or box called a pach shvi’is, where it remains until the food is inedible. When it decomposes to this extent, one may dispose of the shmittah produce in the regular garbage.

Why is this true?

Once the shmittah produce can no longer be eaten, it loses its kedushas shvi’is. Although the concept that decay eliminates sanctity seems unusual, this is only because we are unfamiliar with the many mitzvos where this principle applies. There are several other mitzvos where, in theory, this rule applies – meaning that the items have kedushah that governs how they may be consumed, but once they are no longer edible, this kedushah disappears. The mitzvos that this rule applies to are terumah, challah, bikkurim, revai’i and maaser sheini. However, although this rule applies to these mitzvos, in practice we cannot observe it since produce that has kedusha cannot be consumed by someone who is tamei (Rambam, Hilchos Terumos Chapter 11; Hilchos Maaser Sheini 3:11). This explains why most people are unfamiliar with the rules of kedushas shvi’is.

When eating shmittah food, one need not be concerned about the remaining bits stuck to a pot or an adult’s plate that one usually just washes off; one may wash these pots and plates without concern that one is destroying shmittah produce. However, the larger amounts left behind by children, or leftovers that people might save should not be disposed in the garbage. Instead, they can be scraped into the pach shvi’is.

Issur sechorah – commercial use

One may not harvest the produce of one’s field or tree in order to sell it in commercial quantities or in a business manner (Tosefta, Shvi’is 5:7; Rambam, Hilchos 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).

Tefisas damim

If one trades or sells shmittah produce, the food or money received in exchange becomes imbued with kedushas shvi’is. This means that the money should be used only to purchase food that will itself now have the laws of shmittah produce. The original produce also maintains its kedushas shvi’is (Sukkah 40b).

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 occurring?

Yes, he may. If Shimon sells Reuven two items at the same time, one that has kedushas shvi’is and the other does not, he should sell him the item that does not have kedushas shvi’is at a high price, and the item that has kedushas shvi’is accompanies it as a gift. This method works, even though everyone realizes that this is a means of avoiding imbuing the sales money with kedushas shvi’is.

Shamur and ne’evad

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 Ra’avad and Ba’al Ha’maor to Sukkah 39a). This produce is called shamur. Similarly, many authorities prohibit consuming produce that was tended in a way that violated the agricultural laws of shmittah (Ramban, Yevamos 122a). This produce is called ne’evad.

Shmittah exports

The Mishnah (Shvi’is 6:5) prohibits exporting shmittah produce outside Eretz Yisroel. Some recognized authorities specifically permit exporting shmittah wine and esrogim, although the rationales permitting this are beyond the scope of this article (Beis Ridbaz 5:18; Tzitz Hakodesh, Volume 1 #15:4). This approach is the basic halachic reason to permit the export of esrogim that grow during shmittah next year for Sukkos, 5783. (The esrogim for this coming year will all be from the pre-shmittah crop and not involve any shmittah concerns.)

Sefichin

As explained in last week’s article, the prohibition of sefichin does not refer to perennials that do not require planting every year. Although trees and other perennials definitely thrive when pruned and cared for, most will produce even if left unattended for a year and the farmer has less incentive to violate shmittah by tending his trees.

Thus, tree fruits, nuts, strawberries and bananas do not involve the prohibition of sefichin. (If they grew in a field whose owner was not observing shmittah, they might involve the prohibition of shamur.)

Biur shevi’is

At this point in our discussion, we need to explain the concept of biur shvi’is. The word biur literally means elimination, as in biur chometz, which refers to the eradication of chometz performed each year before Pesach. One of the laws that applies to shmittah produce is that once a specific species is no longer available in the field, one can no longer keep shmittah produce from that species in one’s possession. At this point, one must perform a procedure called biur shvi’is. Although there is a dispute among the rishonim as to the exact definition and requirements of biur shvi’is, 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, Hilchos 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.

Otzar beis din

What is an otzar beis din? Literally, the words means “a storehouse operated by beis din.” Why would a beis din be operating a storehouse? Did they need to impound so much merchandise while doing litigation? No, let me explain.

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? How will they utilize their right to pick shmittah fruit?

Enter the otzar beis din to help! The beis din represents the public interest by hiring people to pick and transport the produce to a distribution center near the consumer. Obviously, no one expects the pickers, sorters, truckers, and other laborers to work as unpaid volunteers; they are also 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 and experience in knowing how to manage this operation. This is all legitimate use of an otzar beis din.

Who pays for otzar beis din services? The otzar beis din divides its costs among the consumers. The charges to the user should reflect the actual expenses incurred in bringing the products to the consumers, and may not include any profit for the finished product (Minchas Shlomoh, Shvi’is 9:8 pg. 250). Thus, otzar beis din products should cost less than regular retail prices for the same items, since there should be no profit margin. (See Yerushalmi, Shvi’is 8:3 that shvi’is produce should be less expensive than regular produce.)

Please note that all the halachos of kedushas shevi’is apply to otzar beis din produce. Also note that acquiring from an otzar beis din is not really “purchasing” since you are not buying the fruit, but receiving a distribution – your payment is exclusively to defray operating costs. Therefore, the money paid for otzar beis din produce does not have kedushas shvi’is, because it is compensation for expenses and not in exchange for the shmittah fruit (Minchas Shlomoh, Shvi’is 9:8 pg. 250).

Produce still in the possession of an otzar beis din at the time of biur is exempt from biur. 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.

Heter otzar beis din

The modern term “Heter otzar beis din” is used pejoratively. The purpose of an otzar beis din is to service the consumer, not the producer, as I explained above. Unfortunately, unscrupulous individuals sometimes manipulate the rubric of otzar beis din to allow a “business as usual” attitude and violate both the spirit and the halacha of shmittah. If the farmer is operating with a true otzar beis din, he will allow people to enter his field and help themselves to the produce. If he bars people, then he is violating the basic laws of shmittah and his produce distribution is not according to otzar beis din principles. Similarly, if the field owner treats the produce as completely his own and charges accordingly, this contradicts the meaning of otzar beis din. These cases are disparagingly referred to as heter otzar beis din; meaning they reflect abuse of the concept of otzar beis din.

Conclusion

Those living in chutz la’aretz should be aware of the halachos of shvi’is and identify with this demonstration that the Ribbono Shel Olam created His world in six days, thereby making the seventh day and the seventh year holy.

The Heter Mechirah Controversy

In a few short weeks, we will begin shmittah year. In preparation, I present this article.

Photo by Rodolfo Belloli from FreeImagesOLYMPUS DIGITAL CAMERA

Several shmittah cycles ago, I was working as a mashgiach for a properly run American hechsher. One factory that I supervised manufactured breading and muffin mixes. This company was extremely careful about checking its incoming ingredients: George, the receiving clerk who also managed the warehouse, kept a careful list of what products he was to allow into the plant and what kosher symbols were acceptable.

On one visit to the plant, I noticed a problem, due to no fault of the company. For years, the company had been purchasing Israeli-produced, freeze-dried carrots with a reliable hechsher. The carrots always arrived in bulk boxes, with the Israeli hechsher prominently stamped in Hebrew and the word KOSHER prominently displayed, in English. George, who always supervised incoming raw materials, proudly showed me through “his warehouse” and noted how he carefully marked the arrival date of each new shipment. I saw crates of the newest shipment of Israeli carrots, from the same manufacturer, and the same prominently displayed English word KOSHER on the box. However, the Hebrew stamp on the box was from a different supervisory agency, one without the same sterling reputation. The reason for the sudden change in supervisory agency was rather obvious, when I noted that the Hebrew label stated very clearly “Heter Mechirah.”

Let me explain the halachic issues that this product entails.

The Torah (Vayikra 25:1-7) teaches that every seventh year is shmittah and prohibits working the land of Eretz Yisroel. During that year, one may not plough, plant or work the field in any way. Furthermore, the farmer must treat whatever grows on his land as ownerless, allowing others to pick and keep his fruit. Many laws apply to the produce that grows during shmittah, including, for example, that one may not sell the produce in a business manner, nor may one export it outside Eretz Yisroel.

For the modern farmer, observing shmittah is indeed true mesiras nefesh, since, among the many other concerns that he has, he also risks losing customers who have been purchasing his products for years. For example, a farmer may be selling his citrus or avocado crop to a distributor in Europe who sells his produce throughout the European Community. If he informs his customer that he cannot export his produce during shmittah year, he risks losing the customer in the future.

Of course, a Jew realizes that Hashem provides parnasah and that observing a mitzvah will never hurt anyone. Therefore, a sincerely observant farmer obeys the Torah dictates, knowing that Hashem attends to all his needs. Indeed, recent shmittos have each had numerous miracles by which observant farmers were rewarded in this world for their halachic diligence. Who can possibly imagine what reward awaits them in Olam Haba!

Unfortunately, the carrot farmer here was not committed to this level of bitachon and, instead, explored other options, deciding to rely on heter mechirah. He soon discovered that his regular, top-of-the line hechsher would not allow this, so he found an alternative hechsher that allowed him to be lenient, albeit by clearly forewarning customers who may consider this product non-kosher. Although he realized that sales would suffer without his regular hechsher, he figured that selling some product is better than selling none.

WHAT IS HETER MECHIRAH?

The basic concept of heter mechirah is that the farmer sells his land to a gentile, who is not required to observe shmittah. Since a gentile now owns the land, the gentile may farm the land, sell its produce and make a profit. The poskim dispute whether a Jew may work land owned by a gentile during shmittah (Tosafos, Gittin 62a s.v. ein odrin, prohibits; Rashi, Sanhedrin 26a s.v. agiston, permits).

IS THIS ANY DIFFERENT FROM SELLING ONE’S CHOMETZ FOR PESACH?

Although some poskim make this comparison (Shu’t Yeshuos Malko, Yoreh Deah #53), many point out differences between selling chometz to a gentile and selling him land in Eretz Yisroel. Indeed, although the Mishnah (Pesachim 21a) and other early halachic sources (Tosefta, Pesachim 2:6) mention selling chometz to a non-Jew before Pesach, no early source mentions selling land in Eretz Yisroel to avoid shmittah (Sefer Hashmittah pg. 71). The earliest source I found discussing this possibility was an eighteenth-century responsum penned by Rav Mordechai Rubyou, the Rosh Yeshivah in Hebron at the time, who discusses the tribulations of a Jew owning a vineyard in Eretz Yisroel in that era (Shu’t Shemen Hamor, Yoreh Deah #4; this sefer was published posthumously in 1793).

HISTORY OF MODERN HETER MECHIRAH

Before explaining the halachic background to the heter mechirah question, I think it is important to understand the historical context of the shaylah.

Rav Yechiel Michel Tukachinski, one of the great twentieth-century poskim of Eretz Yisroel, describes the history and development of the use of heter mechirah. (My source for most of the forthcoming historical material is his work, Sefer Hashmittah.)

The first modern shmittah was in the year 5642 (1882), when there was a mere handful of Jewish farmers in Israel, located in Petach Tikvah, Motza and Mikveh Yisroel. The highly observant farmers in these communities were uncompromising in their commitment to keep shmittah in full halachic detail. [Apparently, at the same time, there were some Sefardi farmers in Israel whose rabbonim did allow them to sell their fields to a gentile for the duration of shmittah (see Shu’t Yeshuos Malko, Yoreh Deah #53; Shu’t Yabia Omer 3:Yoreh Deah #19:7).]

By the next shmittah, 5649 (1889), there was already a much larger Jewish agricultural presence in Eretz Yisroel. Prior to that shmittah year, representatives of the developing Israeli agricultural communities approached several prominent Eastern European gedolim, claiming that the new yishuv could not survive financially if shmittah was observed fully, and that mass starvation would result. Could they sell their land to a gentile for the duration of shmittah and then plant the land and sell its produce?

THE BEGINNINGS OF A CONTROVERSY

Rav Naftali Hertz, the rav of Yaffo, who also served as the rav of most of the agricultural communities involved, directed the shaylah to the gedolei haposkim of the time, both in Israel and in Europe. The rabbonim in Europe were divided, with many prominent poskim, including Rav Yehoshua Kutno, Rav Yosef Engel and Rav Shmuel Mahliver, approving the sale of the land to non-Jews as a hora’as sha’ah, a ruling necessitated by the emergency circumstances prevailing, but not necessarily permitted in the future. They permitted the heter mechirah, but only with many provisos, including that only non-Jews perform most agricultural work. On the other hand, many great European poskim prohibited this heter mechirah, including such luminaries as the Netziv (Rav Naftali Tzvi Yehudah Berlin, the Rosh Yeshivah of the preeminent yeshiva of the era in Volozhin, Lithuania), the Beis Halevi (3:1; Rav Yosef Dov Halevi Soloveichek), the Aruch HaShulchan (Rav Yechiel Michel Epstein) and Rav Dovid Karliner.

Rav Yitzchak Elchanan Spector, the rav of Kovno, Lithuania, whom many viewed as the posek hador, ruled that Rav Hertz could perform the sale and instructed him to have the great poskim of Yerushalayim actuate the sale.

This complicated matters, since the Ashkenazi rabbonei Yerushalayim universally opposed the heter mechirah and published a letter decrying it stridently. This letter, signed by the two rabbonim of Yerushalayim, Rav Yehoshua Leib Diskin and Rav Shmuel Salant, and over twenty other gedolim and talmidei chachamim, implored the farmers in the new yishuv to keep shmittah steadfastly and expounded on the Divine blessings guaranteed them for observing shmittah. The letter also noted that Klal Yisroel was punished severely in earlier eras for abrogating shmittah (see Avos Chapter 5). As Rashi (Vayikra 26:35) points out, the seventy years of Jewish exile between the two batei hamikdash correspond to the exact number of shmittos that were not observed from when the Jews entered Eretz Yisroel until the exile. The great leaders of Yerushalayim hoped that if Klal Yisroel observed shmittah correctly, this would constitute a collective teshuvah for the sins of Klal Yisroel and would usher in the geulah.

Rav Hertz, who had originally asked the shaylah, was torn as to what to do. Although he had received letters from some of the greatest poskim of Europe permitting the mechirah, the poskei Yerushalayim adamantly opposed it. He decided not to sell the land himself, but arranged mechirah for those who wanted it through the Sefardi rabbonim in Yerushalayim, who had apparently performed this mechirah in previous years.

What happened? Did the Jewish farmers observe the shmittah as instructed by the rabbonei Yerushalayim, or did they rely on heter mechirah? Although the very committed farmers observed shmittah according to the dictates of the gedolei Yerushalayim, many of the more marginally observant farmers acceded to the pressure and relied on heter mechirah. Apparently, many farmers were subjected to considerable financial and social pressure to evade observance of shmittah.

Prior to shmittah year 5656 (1896), Rav Hertz again considered what to do in the coming shmittah and approached the rabbonei Yerushalayim. This time, both Rav Shmuel Salant and Rav Yehoshua Leib Diskin approved the mechirah and even suggested to Rav Hertz how to arrange this mechirah in a halachically approved fashion.

WHAT CHANGED?

Why were the very same rabbonim who vehemently opposed the mechirah seven years earlier not opposed to it this time? Initially, these rabbonim felt that since we had now merited returning to Eretz Yisroel, we should make sure to observe all the mitzvos of Eretz Yisroel without compromise, and evading shmittah with heter mechirah runs totally counter to this spirit. However, upon realizing that few farmers had observed the previous shmittah properly, the feeling of these great gedolim was that without the option of heter mechirah, most farmers would simply conduct business as usual and ignore shmittah completely. Therefore, it was better to permit heter mechirah, while at the same time encourage farmers not to rely on it.

Prior to the next shmittah, in 5663 (1903), Rav Hertz re-asked his shaylah from the rabbonim of Yerushalayim, Rav Shmuel Salant and the Aderes, Rav Eliyahu Dovid Rabinowitz Teumim (Rav Diskin had passed on in the meantime), since the original approval stipulated only that shmittah. These rabbonim felt that there was still a need for heter mechirah in 5663. Rav Hertz, himself, passed away before the heter mechirah was finalized, and his son-in-law, Rav Yosef Halevi, a talmid chacham of note, finalized the mechirah in his stead, following the instructions of the rabbonei Yerushalayim.

Seven years later (5670/1910), Rav Avraham Yitzchak Kook was the rav of Yaffo and continued the practice of the mechirah, while at the same time encouraging those who would observe shmittah correctly to do so. He continued this practice of performing the heter mechirah for the several subsequent shmittos of his life.

In addition, Rav Kook instituted a new aspect to heter mechirah. Prior to his time, the heter mechirah involved that the owner of the farm appointed a rav as his agent to sell the land, similar to what we usually do to arrange selling the chometz. Rav Kook added that a farmer who was not going to observe shmittah but did not appoint a rav to sell his land was included in the mechirah, since it is in his best interest to have some heter when he works his field, rather than totally desecrating the Holy Land in the holy year. Although there is merit in protecting the farmer from his sin, now, a practical question results that affects a consumer purchasing this farmer’s produce. If the farmer did not authorize the sale, perhaps the produce indeed has the sanctity of shmittah. For this latter reason, many individuals who might otherwise accept heter mechirah produce do not rely on this heter.

By the way, although the original heter mechirah specified that gentiles must perform all plowing, planting and harvesting, this provision is no longer observed by some farmers who rely on heter mechirah. Many farmers who rely on heter mechirah follow a “business as usual” attitude once they have dutifully signed the paperwork authorizing the sale. Indeed, who keeps the profits from the shmittah produce, the Jew or the non-Jew to whom he sold his land? One can ask — is this considered a sale?

Another point raised is that, although Chazal also contended with much laxity in observing the laws of shmittah, they did not mention selling the land to evade the mitzvah. This is underscored by the fact that there are indeed precedents where Chazal mention ways to avoid observing mitzvos. For example, the Gemara mentions methods whereby one could avoid separating maaser, for those who want to evade this mitzvah, although Chazal did not approve doing so. Furthermore, when Hillel realized that people were violating the halachos of shmittas kesafim, he instituted the pruzbul. Yet, no hint of avoiding shmittah by selling land to a gentile is ever mentioned, thus implying that there is halachic or hashkafic difficulty with this approach (Sefer Hashmittah pg. 82).

SELLING ERETZ YISROEL

In addition to the question of whether one should evade performing a mitzvah of the Torah, the issue of heter mechirah involves another tremendous halachic difficulty. How can one sell any land of Eretz Yisroel, when the Torah prohibits selling it to a non-Jew (Avodah Zarah 20a), and Chazal prohibit even renting the land (Mishnah, Avodah Zarah 20b)?

Different poskim have suggested various approaches to avoid this prohibition. Some contend that selling land temporarily, with an expressed condition that it return to the owner, preempts the violation (Shu’t Shemen Hamor, Yoreh Deah #4), while others permit the sale since its purpose is to assist the Jewish presence in Eretz Yisroel (Shu’t Yeshuos Malko, Yoreh Deah #55; Yalkut Yosef pg. 666, quoting Rav Reuven Katz, the late rav of Petach Tikvah). Others contend that the prohibition extends only to selling land to an idol-worshipper, but not to a gentile who does not worship idols (Sefer Hashmittah, pg. 74; Yalkut Yosef pg. 665, quoting Mizbei’ach Adamah), whereas still others maintain that one may sell land to a gentile who already owns land in Israel (Shabbas Ha’aretz, Mavo 12). The original contracts approved by the rabbonei Yerushalayim designed that sale to incorporate many aspects to avoid this concern (Sefer Hashemittah, pg. 75). However, each of these approaches is halachically controversial. In fact, the problem of selling the land to a gentile is so controversial that many poskim consider such a sale invalid because of the principle of ein shaliach lidvar aveirah, that transacting property through agency in a halachically unacceptable manner is invalid (Chazon Ish, Shvi’is 24:4).

Among contemporary poskim there is wide disagreement whether one may eat produce on the basis of heter mechirah. Some contend that one may, whereas others rule that both the produce and the pots used to cook this produce become non-kosher. Others follow a compromise position, accepting that the pots should not be considered non-kosher, although one should carefully avoid eating heter mechirah produce. Because of the halachic controversies involved, none of the major hechsherim in North America approve heter mechirah produce. Someone visiting Eretz Yisroel during shmittah who wants to maintain this standard should clarify his circumstances in advance.

FRUITS VERSUS VEGETABLES

Some rabbonim ruled that the fruits produced under heter mechirah may be treated as kosher, but not the vegetables. The reason for this distinction is as follows:

SEFICHIM

The Torah permitted the use of any produce that grew on its own in a field that was not worked during shmittah. Unfortunately, though, even in the days of Chazal, it was common to find Jews who deceitfully ignored shmittah laws. One practice of unscrupulous farmers was to plant grain or vegetables and market them as produce that grew on its own. To make certain that these farmers did not benefit from their misdeeds, Chazal forbade all grains and vegetables, even those that grew on their own, a prohibition called sefichim, or plants that sprouted.

Several exceptions were made, including that produce of a non-Jew’s field is not prohibited as sefichim. Thus, if the heter mechirah is considered a charade and not a valid sale, the grain and vegetables growing in a heter mechirah field are prohibited as sefichim.

WHY NOT FRUIT?

Chazal did not extend the prohibition of sefichim to fruit, because there was less incentive for a cheating farmer. Although trees definitely thrive when pruned and attended to, they will produce even if left unattended for a year. Thus, the farmer has less incentive to tend his trees.

PERENNIALS

Similarly, perennials that do not require planting every year are not included in the prohibition of sefichin. Although perennials benefit when pruned and cared for, most will produce, even if left unattended for a year, and the farmer has less incentive to violate shmittah by caring for such plants.

Thus, tree fruits, nuts, strawberries and bananas do not involve the prohibition of sefichin. If they grew in a field whose owner was not observing shmittah, they might involve the prohibition of shamur, as explained below.)

“GUARDED PRODUCE”

I mentioned above that a farmer must allow others to help themselves to the produce that grows on his trees and fields during shmittah. What is the halacha if a farmer refused to allow others access to his produce during shmittah?

The rishonim dispute whether this fruit is forbidden. Some contemporary poskim prohibit the use of heter mechirah fruit on the basis that since heter mechirah is invalid, this fruit is now considered shamur, “guarded,” and therefore forbidden. Other poskim permit the fruit, because they rule that working an orchard or treating it as private property does not prohibit its fruit (see Shu’t Igros Moshe, Orach Chayim 1:186).

BACK TO OUR CARROT MUFFINS

What about our carrot muffins? If we remember our original story, the company had unwittingly purchased heter mechirah carrots. The hechsher required the company to return all unopened boxes of carrots to the supplier and to find an alternative source. However, by the time I discovered the problem, muffin mix using these carrots had been produced bearing the hechsher’s kashrus symbol and had already been distributed. The hechsher referred the shaylah to its posek, askingwhether they were required to recall the product from the stores as non-kosher, or whether it was sufficient to advertise that an error occurred and allow the customer to ask his individual rav for halachic guidance.

What would you advise?

Post-Shmittah Awareness for the Eretz Yisroel and Chutz La’Aretz Consumer

If you are in Eretz Yisroel, you should be receiving this article on Parshas Behar. If you are in chutz la’aretz, you are receiving it the same week, but a parshah earlier.

How can we pass Parshas Behar immediately following a shmittah year without discussing the laws of shmittah? Yet many chutz la’aretz residents see no need to learn these laws, assuming that locally available produce is never affected.

Well — guess again. Although, according to the halacha, one may not export shmittah produce outside Israel (Mishnah Shvi’is 6:5), much produce finds its way there. And, even in chutz la’aretz, we must treat fruit of Eretz Yisroel with kedushas shvi’is, according to all of the laws we will now discuss.

Situation #1: WHAT A ROAST!!

Traditional English Sunday roast with Yorkshire pudding and summer vegetables macro close up isolated on white

When I was a rav in America, a knowledgeable housewife cooked a delectable roast, using wine whose label indicated that it had kedushas shvi’is. Although she had no idea what this term meant, her son pointed out that they needed to ask a shaylah what to do with the roast. To make a long story short, the entire roast had to be treated with kedushas shvi’is; I will soon explain what this means.

Situation #2: WHAT ARE SEFICHIN?

“I noticed a sign in shul that the fruits and vegetables in the local supermarket are from Israel and must be treated appropriately. Someone told me that the vegetables are prohibited because they are sefichin. What does that mean?”

Situation #3: WHAT WOULD YOU RULE?

Several shmittah cycles ago, I was working as a mashgiach for a properly-run American hechsher. One factory that I supervised manufactured breading and muffin mixes. This company was extremely careful about checking its incoming ingredients: George, the receiving clerk who also managed the warehouse, kept a careful list of what products he was to allow into the plant and what kosher symbols were acceptable.

On one visit to the plant, I noticed a problem, due to no fault of the company. For years, the company had been purchasing Israeli produced freeze-dried carrots with a reliable hechsher. The carrots always arrived in bulk boxes with the Israeli hechsher prominently stamped in Hebrew and the word KOSHER prominently displayed in English. George, who always supervised incoming raw materials, proudly showed me through “his warehouse” and noted how he carefully marked the arrival date of each new shipment. I saw crates of the newest shipment of Israeli carrots, from the same manufacturer, and the same prominently displayed English word KOSHER on the box. However, the Hebrew stamp on the box was from a different supervisory agency, one without the same sterling reputation. The reason for the sudden change in supervisory agency was rather obvious, when I noted that the Hebrew label stated very clearly “Heter Mechirah.”

First, let us discuss the basics:

LAWS OF THE LAND

In this week’s parsha, the Torah (VaYikra 25:1-7) teaches that every seventh year is shmittah; we are prohibited from working the land of Eretz Yisroel and must leave our land fallow (Avodah Zarah 15b). Just as observing the seventh day, Shabbos, demonstrates our belief in the Creator, so too, observing every seventh year as shmittah demonstrates this faith. The landowner must treat whatever grows as ownerless, allowing others to enter his field or orchard to pick and take its produce. The picker may take as much as his family will eat, and the landowner himself also may take this amount (see Rambam, Hil. Shmittah 4:1).

LAWS OF THE FRUIT

Although shmittah observance today is mandated only miderabbanan (see Moed Katan 2b; Chazon Ish, Shvi’is 3:8), nevertheless, most of its laws are the same as they will be when observing shmittah will again become a mitzvah min hatorah. The Torah imbues shmittah produce with special sanctity, called kedushas shvi’is, declaring vihaysa shabbas ha’aretz lochem le’ochlah, “the produce of the shmittah should be used only for food” (VaYikra 25:6). According to accepted opinion, one is not obligated to eat shmittah food – rather, the Torah grants us permission to eat it, and we must treat it accordingly (Chazon Ish, Hil. Shvi’is 14:10). There is much halachic detail involved in correct use of shmittah produce. For example:

One may not sell shmittah produce in a business manner (Rambam, Hil. Shmittah 6:1). Although one may pick shmittah produce for one’s personal consumption, one may not harvest it to sell commercially (Tosefta, Shvi’is 5:7).
One may not export shmittah produce outside Eretz Yisroel (Mishnah Shvi’is 6:5). There are opinions that allow exporting shmittah wine and esrogim; however, the rationales permitting this are beyond the scope of this article (Beis Ridbaz 5:18; Tzitz HaKodesh, Volume 1 #15:4).

III. Shmittah produce is intended for Jewish consumption; you may not give or sell kedushas shvi’is produce to a gentile, although you may allow him to join you for your meal (Rambam, Hil. Shmittah 5:13 and Mahari Korkos ad loc.).

If one trades or sells the shmittah produce, the food or money received in exchange also has kedushas shvi’is (Sukkah 40b). (Because of space constraints, I will leave details of these halachos for another time.)
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, nor may one eat raw produce that is usually cooked (Yerushalmi, Shvi’is 8:2; Rambam, Hil. Shvi’is 5:3). Therefore, one may not eat raw shmittah potatoes, nor may one cook shmittah cucumbers or oranges. Contemporary authorities dispute whether one may add shmittah orange or apricot to a recipe for roast or cake. Even though the roast or cake is delicious because of the added fruit, many poskim prohibit this cooking or baking, since these fruit are usually eaten raw (Shu”t Mishpat Cohen #85). Others permit this, if it is a usual way of eating these fruits (Mishpetei Aretz page 172, footnote 10).

One may feed shmittah produce to animals only if it is not considered fit for human consumption. This includes varieties grown for fodder, as well as peels and seeds that people do not usually eat (Rambam, Hilchos Shmittah 5:5). A neighbor of mine, whose finicky pet turtle prefers to eat lettuce, had a problem what to feed it. Before shmittah he was trying to get it to eat grass, but the turtle preferred lettuce. Oi, is shver tzu zein a turtle!

Similarly, juicing vegetables and most kinds of fruit is considered “ruining” the shmittah produce and prohibited, although one may press grapes, olives and lemons, since the juice and oil of these fruits are considered improvements. Many contemporary authorities permit pressing oranges and grapefruits, provided one treats the remaining pulp with kedushas shvi’is. Even these authorities prohibit juicing most other fruit, such as apples and pears (Minchas Shelomoh, Shvi’is pg. 185).

RUINING VERSUS EATING

How do we determine whether processing a food “ruins” it or not? Many poskim contend that if the processing changes the food’s preferred bracha, one may not perform such processing on shvi’is produce (Shu”t Mishpat Cohen #85, based on Gemara Brachos 38a and Rambam, Hilchos Shvi’is 5:3). Since turning apples to juice reduces their bracha from ha’eitz to shehakol, this would be considered “ruining” the apples. Similarly, the fact that one recites the bracha of shehakol prior to eating a raw potato or cooked cucumbers or oranges demonstrates that treating them this way ruins the produce. According to this approach, one may not press oranges or grapefruits either, since one recites shehakol and not ha’eitz on the juice (Shu”t Mishpat Cohen #85).

Those who permit squeezing oranges and grapefruits apply a different criterion, contending that since this is the most common use of these fruit, it is permitted (Minchas Shelomoh, Shvi’is pg. 185).

One must certainly be careful not to actively destroy shmittah produce. Therefore, one who has excess shvi’is produce may not trash it in the usual way. Similarly, peels that are commonly eaten, such as cucumber or apple, still have shmittah kedusha and may not simply be discarded. Instead, contemporary practice is to place these peels in a plastic bag and then place the bag in a small bin or box called a pach shvi’is, where it remains until the food is inedible. When it decomposes to this extent, one may dispose of the shmittah produce in the regular garbage.

WHY DECOMPOSE?

This leads us to a question: If indeed one may not throw shmittah produce in the garbage because it has sanctity, why may one do so after the produce decomposes? Does decomposition remove kedusha?

Indeed it does. Kedushas shvi’is means that as long as the food is still edible, one may not make it inedible or use it atypically. This is because shmittah food is meant to be eaten, even though there is no requirement to do so. However, once the shmittah food is inedible, it loses its special status, and may be disposed of as trash.

SANCTITY UNTIL SPOILAGE

This sounds very strange. Where do we find that something holy loses its special status when it becomes inedible?

Although the concept that decay eliminates sanctity seems unusual, this is only because we are unfamiliar with the mitzvos where this principle applies. Other mitzvos where this concept exists are terumah, challah, bikkurim, revai’i and maaser sheini, all cases where, in today’s world, we, unfortunately, cannot consume the produce because we are tamei (Rambam, Hilchos Terumos Chapter 11; Hilchos Maaser Sheini 3:11). Of these types of produce that are holy, but meant to be eaten, only shvi’is may be eaten by someone tamei. Even though someone tamei may not consume tahor terumah, challah, or maaser sheini, in these cases, as well, one may not dispose of or burn them. Instead, one must place them in a secure place until they decay and only then dispose of them (Tur, Yoreh Deah 331). (We burn the special challah portion after separating it only because it has become tamei. If it did not become tamei, we could not destroy the challah portion, but we would place it somewhere until it decays on its own, just as we do with unused shvi’is produce.)

A SHMITTAH ROAST IN AMERICA

We can now explore the first question I mentioned:

1a: May one use shmittah wine to season a roast?

Although one improves the roast by adding the wine, the wine itself is ruined. Thus, some poskim prohibit using the wine in this way, whereas others permit it, since this is a normal use for wine (see commentaries to Yerushalmi, Terumos 11:1).

1b: What does our American housewife do with her shmittah wine-flavored roast?

If one uses shmittah food as an ingredient, one must treat everything that absorbs its taste according to the laws of kedushas shvi’is (see Mishnah Shvi’is 7:7). Therefore, one who used shmittah potatoes in cholent or shmittah onions or bay leaves in soup must treat the entire cholent or soup according to shvi’is rules. One may not actively waste this food, nor may one feed any of it to animals, until the food is spoiled to the point that people would not eat it.

Therefore, our housewife who added shmittah wine to her roast must now consider the entire roast, even the gravy and vegetables cooked with it, to have kedushas shvi’is. One serves the roast in the regular way. As mentioned above, the small scrapings left on an adult’s plate may be washed off; but the larger amounts left behind by children should not be disposed of in the garbage, nor should the leftovers in the pot or on the platter.

Although one may not dispose of the leftover kedushas shvi’is roast in the garbage, it is unclear whether one may remove these leftovers from the refrigerator in order to hasten their decay, even to place them in a shmittah bin (see Chazon Ish, Shvi’is 14:10). However, if one removed leftover roast to serve, one is not required to return the leftovers to the refrigerator. Instead, one may simply place the leftovers somewhere until they have spoiled. To avoid the malodor that this may cause, one may place them in a plastic bag until they decay and then dispose of them.

SEFICHIN

At this point, we should address the second question I mentioned:

“I noticed a sign in shul that the some fruits and vegetables in the local supermarket are from Israel and must be treated appropriately. Someone told me that the vegetables are prohibited, because they are sefichin. What does that mean?”

The Torah permits the use of any produce that grew during shmittah by itself, without anyone working the field. However, an unfortunate fact is that, even in the days of Chazal, one could find Jews who deceitfully ignored shmittah laws. One practice of unscrupulous farmers was to plant grain or vegetables, and then market them as produce that grew on its own. To make certain that these farmers did not benefit from their misdeeds, Chazal forbade all grains and vegetables, even those that grew by themselves, a prohibition called sefichin, or plants that sprouted. Sefichin are treated as non-kosher food and forbidden to eat, even requiring one to kasher the equipment if they were cooked!

Chazal made several exceptions to this rule, including that produce of a non-Jew’s field is not prohibited as sefichin.

Since Shmittah fruits and vegetables may be sold only to someone who will properly observe the laws, and, also, there is a prohibition of shipping this produce outside Eretz Yisroel, the growers of the Shmittah produce being sold in an American grocery presumably ignored the prohibition of Shmittah. There is also the possibility that they relied on heter mechirah, a topic that I dealt with extensively in a different article.

As a practical matter, few contemporary chareidi poskim permit heter mechirah, and, even among non-chareidi authorities, support for its use is waning. Thus, if the heter mechirah is considered a charade and not a valid sale, the grain and vegetables growing in a heter mechirah field are prohibited as sefichin.

WHY NOT FRUIT?

Chazal included in the prohibition of sefichin only crops that could be planted and yield a harvest in one year. They did not extend the prohibition of sefichin to tree fruits and other perennial crops, such as bananas and strawberries, because there was less incentive for a cheating farmer. Although trees definitely thrive when pruned and cared for, they will produce, even if left unattended for a year. Thus, the farmer has less incentive to tend his trees.

“GUARDED PRODUCE”

I mentioned above that a farmer must allow others free access to help themselves to any produce that grows on his trees and fields during shmittah. What is the halacha if a farmer treats this produce as his own and refuses access to it during shmittah?

The Rishonim dispute whether this will make the fruit forbidden. Some late poskim permit the fruit, because they rule that the forbidden working of an orchard or treating it as private property does not prohibit its fruit (see Shu”t Igros Moshe, Orach Chayim 1:186). Others rule that one should prohibit “guarded fruit.”

What about our carrot muffins? If we remember our original story, the company had unwittingly purchased heter mechirah carrots. The hechsher required the company to return all unopened boxes of carrots to the supplier and to find an alternative source. However, by the time the problem was discovered, muffin mix using these carrots had already been produced and distributed, bearing the hechsher’s kashrus symbol. The hechsher referred the shaylah to its posek, asking whether they were required to recall the product from the stores as non-kosher, or whether it was sufficient to advertise that an error had occurred, advising the customer to ask his individual rav for halachic guidance. The posek asked permitted them to follow the latter procedure.

For someone living in Eretz Yisroel, observing shmittah properly involves assuming much halachic responsibility, education and often great commitment, since shmittah-permitted produce is often many times more expensive than its alternative. Those living in chutz la’aretz should be aware of the halachos of shvi’is and identify with this demonstration that the Ribbono Shel Olam created the world in seven days, and that the seventh year is holy.

The Heter Mechirah Controversy

Several shmittah cycles ago I was working as a mashgiach for a properly run American hechsher. One factory that I supervised used to manufacture breading and muffin mixes. This company was extremely careful about checking its incoming ingredients: George, the receiving clerk who also managed the warehouse, kept a careful list of what products he was to allow into the plant and what kosher symbols were acceptable.

On one visit to the plant I noticed a problem due to no fault of the company. For years, the company had been purchasing Israeli-produced, freeze-dried carrots with a reliable hechsher. The carrots always arrived in bulk boxes with the Israeli hechsher prominently stamped in Hebrew and the word KOSHER prominently displayed in English. George, who always supervised incoming raw materials, proudly showed me through “his warehouse” and noted how he carefully marked the arrival date of each new shipment. I saw crates of the newest shipment of Israeli carrots, from the same manufacturer, and the same prominently displayed English word KOSHER on the box. However, the Hebrew stamp on the box was from a different supervisory agency, one without the same sterling reputation. The reason for the sudden change in supervisory agency was rather obvious when I noted that the Hebrew label stated very clearly “Heter Mechirah.”

Let me explain the halachic issues that this product entails.

The Torah (Vayikra 25:1-7) teaches that every seventh year is shmittah and prohibits working the land of Eretz Yisroel. During that year, one may not plough, plant, or work the field in any way. Furthermore, the farmer must treat whatever grows on his land as ownerless, allowing others to pick and keep his fruit. They may only take as much as their family will be eating, and the farmer also may take this amount. Many other laws apply to the produce that grows during shmittah, including, for example, that one may not sell the produce in a business manner nor may one export it outside Eretz Yisroel.

For the modern farmer, observing shmittah is indeed true mesiras nefesh, since among the many other concerns that he has, he also risks losing customers who have been purchasing his products for years. For example, a farmer may be selling his citrus or avocado crop to a distributor in Europe who sells his produce throughout the European Community. If he informs his customer that he cannot export his product during shmittah year, he risks losing the customer in the future.

Of course, a Jew realizes that Hashem provides parnasah and that observing a mitzvah will never hurt anyone. Therefore, a sincerely observant farmer obeys the Torah dictates knowing that Hashem attends to all his needs. Indeed, recent shmittos have each had numerous miracles rewarding observant farmers in this world for their halachic diligence. Who can possibly imagine what reward awaits them in Olam Haba!

Unfortunately, the carrot farmer here was not committed to this level of bitachon and instead explored other options, deciding to rely on heter mechirah. He soon discovered that his regular, top-of-the line hechsher would not allow this, so he found an alternative hechsher that allowed him to be lenient, albeit by clearly forewarning customers who may consider this product non-kosher. Although he realized that sales would suffer without his regular hechsher, he figured that selling some product is better than selling none.

WHAT IS HETER MECHIRAH?

The basic concept of heter mechirah is that the farmer sells his land to a gentile, who is not required to observe shmittah. Since a gentile now owns the land, the gentile may farm the land, sell its produce, and make a profit. The poskim dispute whether a Jew may work land owned by a gentile during shmittah (Tosafos, Gittin 62a s.v. ayn odrin, prohibits; whereas Rashi, Sanhedrin 26a s.v. agiston, permits).

IS THIS ANY DIFFERENT FROM SELLING ONE’S CHOMETZ FOR PESACH?

Although some poskim make this comparison (Shu’t Yeshuos Malko, Yoreh Deah #53), many point out differences between selling chometz to a gentile and selling him land in Eretz Yisroel. Indeed although the Mishnah (Pesachim 21a) and other early halachic sources (Tosefta, Pesachim 2:6) mention selling chometz to a non-Jew before Pesach, no early source mentions selling land of Eretz Yisroel to avoid shmittah (Sefer Hashmittah pg. 71). The earliest source I found discussing this possibility was an eighteenth century responsum penned by Rav Mordechai Rubyou, the Rosh Yeshivah in Hebron at the time, who discusses the tribulations of a Jew owning a vineyard in Eretz Yisroel in that era (Shu’t Shemen Hamor, Yoreh Deah #4. This sefer was published posthumously in 1793.)

HISTORY OF MODERN HETER MECHIRAH

Before explaining the halachic background to the heter mechirah question, I think it is important to understand the historical context of the shaylah.

Rav Yechiel Michel Tukachinski, one of the great twentieth century poskim of Eretz Yisroel, describes the history and development of the use of heter mechirah. (My source for most of the forthcoming historical material is his work, Sefer Hashmittah.)

The first modern shmittah was in the year 5642 (1882), although at that time there were a mere handful of Jewish farmers in Israel, located in Petach Tikvah, Motza, and Mikveh Yisroel. The highly observant farmers in these communities were uncompromising in their commitment to observe shmittah in full halachic detail. Apparently, at the same time there were some Sefardic farmers in Israel whose rabbonim did allow them to sell their fields to a gentile for the duration of shmittah (see Shu’t Yeshuos Malko, Yoreh Deah #53; Shu’t Yabia Omer 3:Yoreh Deah #19:7).

By the next shmittah of 5649 (1889), there was already a much larger Jewish agricultural presence in Eretz Yisroel. Prior to that shmittah year, representatives of the developing Israeli agricultural communities approached several prominent Eastern European gedolim,laiming that the new yishuv could not survive financially if shmittah were to be observed fully and that mass starvation would result. Could they sell their land to a gentile for the duration of shmittah and then plant the land and sell its produce?

THE BEGINNINGS OF A CONTROVERSY

Rav Naftali Hertz, the Rav of Yaffo, who also served as the Rav of most of the agricultural communities involved, directed the shaylah to the gedolei haposkim of the time, both in Israel and in Europe. The rabbonim in Europe were divided, with many prominent poskim, including Rav Yehoshua Kutno, Rav Yosef Engel and Rav Shmuel Mahliver, approving the sale of the land to non-Jews as a horaas shaah, a ruling necessitated by the emergency circumstances prevailing, but not necessarily permitted in the future. They permitted the heter mechirah, but only with many provisos, including that only non-Jews perform most agricultural work. On the other hand, many great European poskim prohibited this heter mechirah, including such luminaries as the Netziv (Rav Naftali Tzvi Yehudah Berlin, the Rosh Yeshivah of the preeminent yeshiva of the era in Volozhin, Lithuania), the Beis HaLevi (3:1) (Rav Yosef Dov HaLevi Soloveichek), the Aruch HaShulchan (Rav Yechiel Michel Epstein), and Rav Dovid Karliner.

Rav Yitzchak Elchanan Spector, the Rav of Kovno, Lithuania, who many viewed as the posek hador, ruled that Rav Hertz could perform the sale and instructed him to have the great poskim of Yerushalayim actuate the sale.

This complicated matters, since the Ashkenazi Rabbonei Yerushalayim universally opposed the heter mechirah and published a letter decrying it stridently. This letter, signed by the two rabbonim of Yerushalayim, Rav Yehoshua Leib Diskin and Rav Shmuel Salant, and over twenty other gedolim and talmidei chachamim, implored the farmers in the new yishuv to keep shmittah steadfast and expounded on the divine blessings guaranteed them for observing shmittah. The letter also noted that Klal Yisroel was punished severely in earlier times for abrogating shmittah (see Avos Chapter 5). As Rashi (Vayikra 26:35) points out, the seventy years of Jewish exile between the two batei hamikdash correspond to the exact number of shmittos that were not observed from when the Jews entered Eretz Yisroel until the exile. The great leaders of Yerushalayim hoped that if Klal Yisroel observed shmittah correctly, this would constitute a collective teshuvah for the sins of Klal Yisroel and would usher in the geulah.

Rav Hertz, who had originally asked the shaylah, was torn as to what to do. Although he had received letters from some of the greatest poskim of Europe permitting the mechirah, the poskei Yerushalayim were adamant in their opposition. He decided not to sell the land himself, but arranged mechirah for those who wanted it through the Sefardic rabbonim in Yerushalayim, who had apparently performed this mechirah in previous years.

What happened? Did the Jewish farmers observe the shmittah as cajoled by the Rabbonei Yerushalayim, or did they rely on heter mechirah? Although the very committed farmers observed shmittah according to the dictates of the Gedolei Yerushalayim, many of the more marginally observant farmers succumbed to the pressure and relied on heter mechirah. Apparently, many farmers were subjected to considerable financial and social pressure not to observe shmittah.

Prior to shmittah year 5656 (1896), Rav Hertz again considered what to do in the coming shmittah, and approached the Rabbonei Yerushalayim. This time, both Rav Shmuel Salant and Rav Yehoshua Leib Diskin approved the mechirah and even suggested to Rav Hertz how to arrange this mechirah in a halachically approved fashion.

WHAT CHANGED?

Why were the very same rabbonim who vehemently opposed the mechirah seven years earlier not opposed this time? Initially these rabbonim felt that since we had now merited returning to Eretz Yisroel, we should make sure to observe all the mitzvos of Eretz Yisroel without compromise, and evading shmittah with heter mechirah runs totally counter to this spirit. However, upon realizing that few farmers had observed the previous shmittah properly, the feeling of these great gedolim was that without the option of heter mechirah, most farmers would simply conduct business as usual and ignore shmittah completely. Therefore, it was better to permit heter mechirah while at the same time encourage farmers not to rely upon it.

Prior to the next shmittah in 5663 (1903) Rav Hertz re-asked his shaylah from the rabbonim of Yerushalayim, Rav Shmuel Salant, and the Aderes, Rav Eliyahu Dovid Rabinowitz Teumim (Rav Diskin had passed on in the meantime), since the original approval stipulated only the 1896 shmittah year. These rabbonim felt that the circumstances had not changed and that there was still a need for heter mechirah. Rav Hertz himself passed away before the heter mechirah was finalized, and his son-in-law, Rav Yosef HaLevi, apparently a talmid chacham of note, finalized the mechirah in his stead, following the instructions of the rabbonei Yerushalayim.

Seven years later (5670/1910), Rav Avraham Yitzchak Kook was the Rav of Yaffo and continued the practice of the mechirah, while at the same time encouraging those who would observe shmittah correctly to do so. As Rav he continued this practice of performing the heter mechirah for the several subsequent shmittos of his life.

In addition, Rav Kook instituted a new aspect to heter mechirah. Prior to his time, the heter mechirah involved appointing an agent to sell the land for the years of shmittah. Rav Kook improvised a facet of the mechira enabling even a farmer who did not avail himself of the mechirah to be included since it would be in his best interest to have some heter when he works his field rather than totally desecrating the Holy Land in the holy year.

Although there is merit in protecting the farmer from his sin, a practical question now results that affects a consumer purchasing this farmer’s produce. If the farmer did not authorize the sale, does the produce indeed not have the sanctity of shmittah produce? For this latter reason, many individuals who might otherwise accept heter mechirah produce do not.

By the way, although the original heter mechirah specified that gentiles must perform all plowing, planting and harvesting, this provision is no longer observed by most farmers who rely on heter mechirah. Many farmers who rely on heter mechirah follow a “business as usual” attitude once they have dutifully signed the paperwork authorizing the sale. Indeed, who keeps the profits from the shmittah produce, the Jew or the non-Jew to whom he sold his land? One can ask — is this considered a sale?

Another point raised is that although Chazal also contended with much laxity in observing the laws of shmittah, they did not mention selling the land to evade the mitzvah. This is underscored by the fact that there are indeed precedents where Chazal mention ways to avoid observing mitzvos. For example, the Gemara mentions methods whereby one could avoid separating maaser for those who want to evade this mitzvah, although Chazal did not approve of doing so. Furthermore, when Hillel realized that people were violating the halachos of shmittas kesafim, he instituted the pruzbul. Yet no hint of avoiding shmittah by selling land to a gentile is ever mentioned, thus implying that there is halachic or hashkafic difficulty with this approach (Sefer Hashmittah pg. 82).

SELLING ERETZ YISROEL

In addition to the question of whether one should evade performing a mitzvah of the Torah, the issue of heter mechirah involves another tremendous halachic difficulty. How can one sell any land of Eretz Yisroel when the Torah prohibits selling it to a non-Jew (Avodah Zarah 20a), and Chazal prohibit even renting the land (Mishnah, Avodah Zarah 20b)?

Different poskim have suggested various approaches to avoid this prohibition. Some contend that selling land temporarily with an expressed condition that it returns to the owner preempts the violation (Shu’t Shemen Hamor, Yoreh Deah #4), while others permit this since the sale is to assist the Jewish presence in Eretz Yisroel (Shu’t Yeshuos Malko, Yoreh Deah #55; Yalkut Yosef pg. 666, quoting Rav Reuven Katz, the late rav of Petach Tikvah). Others contend that the prohibition extends only to selling land to an idol-worshipper but not a gentile who does not worship idols (Sefer Hashmittah pg. 74; Yalkut Yosef pg. 665, quoting Mizbayach Adamah), whereas still others maintain that one may sell land to a gentile who already owns land in Israel (Shabbas Ha’aretz, Mavo 12). The original contracts approved by the rabbonei Yerushalayim incorporate some other aspects of the way the sale transpires to avoid this problem (Sefer Hashemittah pg. 75). Each of these approaches is halachically controversial. In fact, the problem of selling the land to a gentile is so controversial that many poskim consider such a sale invalid because of the principle ein shaliach lidvar aveirah, that transacting property through agency in a halachically unacceptable manner is invalid (Chazon Ish, Shvi’is 24:4).

Among contemporary poskim there is wide disagreement whether one may eat produce manufactured through heter mechirah; some contending that one may, others ruling that both the produce and the pots are non-kosher, whereas others accept that the pots should not be considered non-kosher although one should carefully avoid eating heter mechirah produce. Because of the halachic controversies involved, none of the major hechsherim in North America approve heter mechirah produce. Someone visiting Eretz Yisroel during shmittah who wants to maintain this standard should clarify in advance what he intends to do.

FRUITS VERSUS VEGETABLES

Some rabbonim ruled that the fruits produced under heter mechirah may be treated as kosher, but not the vegetables. The reason for this distinction follows:

SEFICHIM

The Torah permitted the use of any produce that grew on its own without working the field during shmittah. Unfortunately though, even in the days of Chazal, it was common to find Jews who deceitfully ignored shmittah laws. One practice of enterprising, unscrupulous farmers was to plant grain or vegetables and market them as produce that grew on its own. To make certain that these farmers did not benefit from their misdeeds, Chazal forbade all grains and vegetables, even those that grew on their own, a prohibition called sefichim, or plants that sprouted.

WHY NOT FRUIT?

Chazal did not extend the prohibition of sefichim to fruit because there was less incentive for a cheating farmer. Although trees definitely thrive when pruned and attended to, they will produce even if left unattended for a year. Thus, the farmer has less incentive to tend his trees.

“GUARDED PRODUCE”

I mentioned above that a farmer must allow others to help themselves to the produce that grows on his trees and fields during shmittah. What is the halacha if a farmer refused to allow others access to his produce during shmittah?

The rishonim dispute whether this fruit is forbidden. Some contemporary poskim prohibit the use of heter mechirah fruit on the basis that since heter mechirah is invalid, this fruit is now considered “guarded,” and therefore forbidden. Other poskim permit the fruit because they rule that working an orchard or treating it as private property does not prohibit its fruit.

What about our carrot muffins? If we remember our original story, the company had unwittingly purchased heter mechirah carrots. The hechsher required the company to return all unopened boxes of carrots to the supplier and to find an alternative source. However, by the time I discovered the problem, muffin mix using these carrots had been produced bearing the hechsher’s kashrus symbol and were already distributed. The hechsher referred the shaylah to its posek, asking whether they were required to recall the product from the stores as non-kosher, or whether it was sufficient to advertise that an error had occurred and allow the customer to ask his individual rav for halachic guidance.

What would you advise?