Halacha for Tuesday 29 Tishrei 5782 October 5 2021

Heter Mechira

Today’s Halacha is longer than usual because it mainly focuses on historical information and anecdotes.

In the previous Halacha we have discussed the laws of the sanctity of Shevi’it which rests upon fruits grown during Shevi’it and vegetables picked during this year. As a result of this sanctity, one may not cause loss or ruin to these fruits; likewise, one may not sell fruits of Shevi’it besides for in the regulated manner we shall discuss further. Similarly, different works associated with cultivating the land and improving the produce of the Shemitta year are forbidden as well. Additionally, we have also explained the sanctity of Shevi’it does not apply to produce grown in a non-Jew’s land in Israel and applies only to fruits grown on a Jew’s land.

Since nowadays most lands and fields in Israel are owned by Jews and not marketing these fruits like during other years would result in a hefty financial loss, there are Shevi’it organizations that compensate these Jewish farmers for the losses they suffer during Shevi’it of which a large portion of this compensation comes from the generous donations of kind Jews from all over the world. Nevertheless, this does not solve all of the Shevi’it-related problems, for there are still farmers who refuse to allow their lands to remain fallow during Shevi’it in addition to the fact that the Israeli Department of Agriculture does not allow the importation of fruits from other countries to substitute these fruits. As a result of these and several other reasons, it has become the practice of the Chief Rabbinate of Israel already from the times of Hagaon Harav Avraham Yitzchak Ha’Kohen Kook zt”l to sell the lands of interested Jewish farmers to non-Jews, similar to the idea of selling Chametz to a non-Jew on Erev Pesach, and by doing so, the sanctity of Shevi’it would not rest on the produce of Shevi’it. (Produce of this sort is already available in Israeli markets and stores; the further we get into the Shemitta year, the more such fruits and vegetables appear. The Kashrut certificate for such produce will indicate “Heter Mechira.”) Some rule that in this way, a Jew may continue to work the land during the Shemitta year like on any other year. Let us now briefly explain the progression of this practice throughout the years.

In the year 5645 (1885), Baron Rothschild of France (through the intervention of his righteous and philanthropic brother-in-law, Sir Moses Montefiore, and Hagaon Harav Shmuel Mohliver, head of the Bialystok rabbinical court) donated a generous amount of money in order to support the needy residents of the Land of Israel and to help the purchase agricultural plots of land in the Ekron settlement. These lands were originally meant for vineyards to grow wine. The Israeli farmers would work for the baron and he would pay their monthly wages. The baron appointed French managers who were not Torah observant to oversee this project and they would update the baron on the progress. For whatever reasons, harsh arguments erupted between the farmers and the French overseers and the French managers ceased updating the baron regarding the progress of the vineyard operation (success of which was not to be taken for granted in those days and actually failed miserably in the beginning). When the baron visited Israel, he was amazed to see the remarkable success of the growing vineyard and the wine-production. He was so taken aback that he decided to rename the settlement “Mazkeret Batya” in honor of his mother.

In the year 5648 (1888), the year before Shemitta of 5649, the farmers informed the French project managers that they did not plan to work next year in observance of Shemitta. This clearly meant that the baron’s investment would be lost, for if the Jewish farmers would not tend to the fields for an entire year, this would certainly mean that the vineyards would incur heavy damages. It would also be quite possible that the baron would stop funding the settlement which could bring about a dangerous situation for the Jews living there.

When Baron Rothschild heard about this new turn of events, he consulted with Hagaon Harav Naftali Hertz, the newly appointed rabbi of Jaffa and the surrounding settlements, in order to seek the guidance of the sages of Jerusalem and ascertain whether or not there was any halachic leniency permitting work to continue on his lands during Shevi’it. Rabbi Naftali Hertz, who was also appointed to oversee religious services in several other newly established settlements including Rishon Le’Zion (5642/1882), Nes Ziona, Gedera, and Yesod Ha’Ma’ala (5644/1884), turned to Hagaon Harav Shmuel Salant, Chief Rabbi of Jerusalem; because the latter did not wish to enter a disagreement with Hagaon Harav Yehoshua Leib Diskin, he requested that the Rishon Le’Zion at the time, Hagaon Harav Refael Meir Panizel, enter the picture and rule as he saw fit. The Rishon Le’Zion in turn sent this question to his great brother-in-law, Hagaon Harav Yaakov Shaul Elyashar (who served as the Rishon Le’Zion immediately following him) to look into. Hagaon Harav Elyashar wrote a lengthy response on this issue (printed in his Responsa Simcha La’Ish) where he permitted selling the lands to a non-Jew (similar to the way we sell Chametz to a non-Jew on Erev Pesach) which would absolve the land of its sanctity and all work could then continue as usual. Harav Elyashar based his ruling on the ruling of the author of the Sefer Tzeror Ha’Mor, Hagaon Harav Mordechai Rubian, a Sephardic luminary who lived approximately three hundred years ago, who had previously ruled leniently on this issue.

The Rishon Le’Zion, Hagaon Harav Panizel, signed on to the lenient ruling of Hagaon Harav Elyashar. Nevertheless, there were still many Jewish farmers from the Ekron settlement (who were predominantly Ashkenazi) who refused to accept the ruling of the great Sephardic luminaries and requested the involvement of some Ashkenazi sages including Hagaon Harav Yehoshua of Kutna (one of Poland’s greatest Poskim at the time), Hagaon Harav Shmuel Mohliver (the rabbi who assisted in establishing the settlement by influencing Baron Rothschild), and Hagaon Harav Shmuel Zanvil Klapfish (noted Posek in Warsaw). Each of these great Torah giants wrote halachic responses on this topic and each one ruled that it would be permissible to sell the lands of the Ekron settlement to a non-Jew in order absolve them of their Shevi’it sanctity while emphasizing that this ruling applied only to pressing circumstances such as this one. Many great Ashkenazi Poskim agreed to this ruling including the greatest Ashkenazi Posek of the generation, Hagaon Harav Yitzchak Elchanan Spektor, the Rav of Kovna.

On the other hand, many other Torah giants including Hagaon Harav Yehoshua Leib Diskin (Rav of the Eidah Ha’Charedit of Jerusalem), Hagaon Harav Yosef Dov Soloveichik (Rav of Brisk), Hagaon Harav Naftali Zvi Yehuda Berlin (Rosh Yeshiva of Volozhin), Hagaon Harav David Friedman of Karlin, and others who opposed the “Heter Mechira” (ruling permitting the sale of the land) for several reasons (because of the complexity of the details of Heter Mechira which relate to many very important halachic issues which we cannot discuss on this forum). This halachic argument reappears on the scene the year before every Shemitta year until today while much halachic literature, some pro and some against Heter Mechira, has been authored on this topic.

In the past several generations, the Chief Rabbi of Israel, Hagaon Harav Avraham Yitzchak Ha’Kohen Kook zt”l, instituted that that the Chief Rabbinate, which is responsible for all matters of Kashrut in Israel, receive a power of attorney from farmers interested in selling their lands to a non-Jew (specifically an Arab in order to avoid the prohibition of selling land in Israel to an idolatrous non-Jew) for one year’s time and by doing so, removing the land’s Shevi’it sanctity. Nevertheless, the great Ridbaz of Tzefat wrote a lengthy response opposing the Heter Mechira and shortly later, the great Chazon Ish joined the opposing camp as well. On the other hand, Hagaon Harav Tzvi Pesach Frank wrote that even Hagaon Harav Yehoshua Leib Diskin changed his opinion about Heter Mechira in the year 5695 (1935) and relied upon it when he realized that many non-religious farmers continued working the land as usual during the Shemitta year and as such, a large amount of Shevi’it produce entered the market and was bought and sold which brought about many other problems. He therefore analyzed the matter once again and ruled in accordance with the lenient view (although he limited his ruling to one year only).

So as not to tire our readers, let us quote the words of the Gaon of Kutna (one of the greatest Ashkenazi luminaries of his generation, as we have mentioned above) in a response recorded in his Responsa Yeshuot Malko, Chapter 53 regarding the issue of Heter Mechira: “Regarding Shemitta, I am baffled, for selling the lands is clearly permissible, especially since the Sephardic luminaries (reference to Hagaon Harav Elyashar), who fingernails are wider than the stomachs of the Ashkenazi luminaries, permit non-Jews to work the land during Shevi’it. How can we consider their Torah meaningless?” He adds other such ideas regarding those opposed to Heter Mechira.

Hagaon Harav Shlomo Zalman Auerbach zt”l wrote an entire book on the subject of Heter Mechira and even instructed the Chief Rabbis of Israel, Harav Eliyahu Bakshi-Doron and Harav Yisrael Meir Lau, to continue carrying out the sale of Heter Mechira as was the practice in previous years so that the farmers do not continue to work their lands in a forbidden manner, among other reasons. He added that the Sephardic Poskim did not limit their approval of Heter Mechira to pressing circumstances only and therefore, there is certainly room for leniency in our times. Certainly, when we are finally redeemed and the entire Jewish nation will return to their land and the Mitzvah of Shemitta will once again be a Torah obligation, we will then merit the Torah’s blessing of “I shall command my blessing on the sixth year” and we will no longer require Heter Mechira. However, nowadays, the Heter Mechira should indeed be implemented. This was indeed the opinion of the majority of the greatest luminaries and halachic leaders of the past several generations.

On the other hand, Hagaon Harav Yosef Shalom Elyashiv zt”l felt differently and his opinion was that the Heter Mechira should be completely banned nowadays. Nevertheless, we follow the majority opinion among the Poskim who ruled that the Heter Mechira should be implemented even nowadays. This is especially true for us, Sephardic Jewry, for as we have pointed out above, the Sephardic Poskim did not limit their support of Heter Mechira for pressing circumstances only.

Maran Rabbeinu Ovadia Yosef zt”l, with his stunning halachic genius and expertise, compiled an impressive treatise on the issue of Heter Mechira (printed approximately fifty years ago in the monthly Halacha digest Kol Sinai and later in his Responsa Yabia Omer, Volume 10, Yoreh De’ah, Chapters 37-44) where he leaves no stone unturned on his coverage of the subject matter and he concludes that the Heter Mechira should be carried out nowadays and anyone wishing to purchase Heter Mechira produce certainly has on whom to rely, for this Heter is based on solid halachic foundations, as we have discussed. He adds though that one who acts stringently and purchases produce that is not a product of Heter Mechira is especially praiseworthy. However, the Chief Rabbis must execute the Heter Mechira for those who are interested, as we have explained.

In the next Halacha we shall delve into this topic further.

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