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:
Heter otzar beis din
Otzar beis din
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.
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.
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).
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).
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.
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.)
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.)
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.
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.