Rabbi Jachter's Halacha Files

(and other Halachic compositions)

Parshat Emor

17 Iyar 5767

May 5, 2007

Vol.16 No.29

Heter Mechirah - Part 1

by Rabbi Chaim Jachter

Introduction

One of the most controversial Halachic issues in modern times has been the Heter Mechirah, the sale of Israeli farmland to a Nochri to avoid the prohibition of working the land during the Shemittah year. Since the Shemittah year of 1888-1889 (the first Shemittah of the modern return to Zion), the Halachic propriety of the Heter Mechirah has been vigorously debated by the Halachic authorities of each generation. The Beit HaLevi, Netziv, Aruch HaShulchan, Ridbaz, Chazon Ish, and Rav Yosef Shalom Elyashiv are among the many authorities who oppose the sale. Rav Yitzchak Elchanan Spektor, Rav Kook, Rav Tzvi Pesach Frank, Rav Yechiel Michel Tukachinsky, Rav Shlomo Yosef Zevin, and Rav Ovadia Yosef are among the many Poskim who approve of the sale under certain circumstances. No consensus has emerged regarding this issue. Many observant Jews rely on the Heter Mechirah and many do not. In the coming issues, we will briefly survey the major points of debate in this historic dispute. A lengthier survey written by Rav Shlomo Yosef Zevin appears in LeOr HaHalacha (pages 112-127).

It is vital to emphasize that even the proponents of the Heter Mechirah do not seek to establish it as a permanent feature of Jewish life (unlike the sale of Chameitz before Pesach). Rav Avraham Yitzchak HaKohen Kook, for example, writes:

This is merely a temporary measure (Horaat Shaah) that we implemented only because of the overwhelming need to do so. God forbid that one should consider annulling a great and central Mitzvah such as the holiness of Shemittah unless it is a matter of life and death, such that if we do not sell the land many will die of starvation and the fledgling new Jewish settlement in Eretz Yisrael will be destroyed. However, at a time that a competent Beit Din will conclude that the sale is not necessary and that the nation can observe Shemittah without endangering lives, then God forbid that the sale should take place in such circumstances.

Why is the Heter Mechirah So Controversial?

One could ask a fundamental question regarding this dispute. The Gemara is replete with examples of avoiding a Halachic prohibition by transferring title of ownership of a particular item (Maaser Sheni 4:5, Tosefta Pesachim chapter 2, Beitzah 17a, and Nedarim 48a). In fact, the Gemara (Bechorot 3b) even encourages selling an animal to a Nochri before it gives birth for the first time to avoid the restrictions regarding a Bechor (firstborn). Moreover, Mechirat Chameitz has developed into a yearly routine in observant communities.

A basic answer is that there is no explicit precedent in the Gemara for a sale to avoid Shemittah restrictions. In fact, there are at least three major points of criticism that may account for the absence of an explicit Talmudic precedent for the sale. The first is that Halacha forbids the sale of Israeli real estate to Nochrim. The second point of dispute is the contention that the sale is a charade and thus invalid. The third criticism is that a Nochri's ownership of Israeli land does not remove Shemittah prohibitions from that land.

Moreover, almost none of the sales referred to earlier have the effect of abrogating an entire Mitzvah from the Torah. Chazal encourage the sale of the animal that is about to give birth for the first time only due to the great difficulty of observing the laws regarding the Bechor today, when we do not have a Beit HaMikdash. The opponents of the Heter Mechirah argue that this sale, on the other hand, flippantly eliminates a Torah prohibition. We will now begin to examine these three major challenges to the validity of the Heter Mechirah.

The Prohibition to Sell Israeli Land to Nochrim

The Torah presents the prohibition of "Lo Techaneim," "Do not show them favor" (Devarim 7:2), concerning the seven nations that Bnei Yisrael were commanded to conquer upon entering Eretz Yisrael. The Gemara (Avodah Zara 20a) explains that this prohibition has three branches: not to extend gratuitous compliments to them (see Teshuvot Tzitz Eliezer 15:47 and Nishmat Avraham Y.D. 151:1 for further discussion of this issue), not to give gratuitous gifts to them, and not to sell them land in Israel. Tosafot (ad. loc. s.v. DeAmar) write that these prohibitions most likely apply to all Nochrim, not only the seven nations.

, the Netziv (Teshuvot Meishiv Davar Y.D. Kuntress Devar HaShemittah) rejects the Heter Mechirah because it is forbidden to sell Israeli land to a Nochri. In fact, the Netziv asserts, selling the farmland to a Nochri is a more severe prohibition than failing to observe Shemittah, because Lo Techaneim is undoubtedly a biblical prohibition, while many authorities rule that Shemittah today is only a rabbinic obligation. The Netziv described the situation as "Running from a wolf and encountering a lion." The proponents of the Heter Mechirah respond that selling farmland to avoid Shemittah does not violate Lo Techaneim. They note that some authorities (such as the Bach, Choshen Mishpat 249) rule that this prohibition does not apply to a monotheistic Nochri, such as a Moslem. I have heard that the Israeli Chief Rabbinate is particular to sell the land to a Moslem for this reason.

Another reason why the sale may not violate Lo Techaneim is that it is only a temporary one. Since the time of Rav Yitzchak Elchanan Spektor, the sale has only been for a two-year period. The proponents of the Heter Mechirah point out that the Rambam (Hilchot Avodah Zara 10:4) writes, "Why are we forbidden to sell them land? Because the Torah states Lo Techaneim, that one may not give them a resting place in the Land. If they do not have land, then their residence in Israel shall be temporary." The proponents of the sale argue that it is unusual for the Rambam to offer the reason for a Mitzvah in his Mishneh Torah. The Rambam presents the reason for this prohibition, they argue, because the prohibition applies only when the reason applies (see, however, Rav Yitzchak Twersky's Introduction to the Code of Maimonides pages 407-514 for a different appraisal of the Taamei HaMitzvot that the Rambam included in Mishneh Torah). Thus, since the sale is only temporary in nature, Lo Techaneim does not apply, since the Nochri is not presented with the opportunity to reside permanently in Israel (see Rav Kook's Shabbat HaAretz 58 and Rav Aharon Lichtenstein's thoughts presented in Tradition Spring 2007 page 23).

A precedent for this ruling is a seventeenth century responsum written by Rav M. Robbio, the Rav of Chevron (Teshuvot Shemen HaMor, Yoreh Deah 4). This responsum permitted the sale of a vineyard to a Nochri prior to Shemittah for a period of two years. It is reported that Rav Yitzchak Elchanan considered this ruling a vital precedent for his approval of the Heter Mechirah. Teshuvot Yeshuot Malko (number 55) adds that the Heter Mechirah is in fact conducted with the intention of preserving the Jewish presence in Eretz Yisrael. When a sale to a Nochri enhances the Jewish presence in Israel, the prohibition of Lo Techaneim does not apply.

The Chazon Ish (Shviit 24:1-4) flatly rejects these lenient rulings regarding Lo Techaneim. He writes, "One cannot make exceptions to the Torah's rules." In fact, the Chazon Ish adds that since the sale is forbidden, if one appoints an agent to sell the land, the sale is void. This is an application of the Talmudic teaching "Ein Sheliach LeDvar Averiah," loosely translated as "The laws of agency do not apply to an agent who is appointed to perform a forbidden act." Accordingly, since individual farmers appoint the Israeli Chief Rabbinate as their agent to sell the land, the sale is invalid according to the Chazon Ish, since the Rabbinate is violating the Torah by selling the land to a Nochri.

There are at least three potential responses to the "Ein Sheliach LeDvar Averiah" argument of the Chazon Ish. First, the Chazon Ish assumes that Ein Sheliach LeDvar Averiah implies that the agency is invalid. Others assert that this rule implies only that the agent, but not the one who appointed him, is viewed as the sinner. These authorities claim that the agency remains valid despite the sin committed by the agent. The Aruch HaShulchan (Even HaEzer 141:139) writes that many authorities rule that the agency remains valid despite the Halachic violation and that this dispute has not been resolved and remains in doubt. (This dispute is based on the two opinions that appear in Tosafot, Bava Metzia 10b s.v. DeAmar LeYisrael.)

A second response to the Chazon Ish is that the Maharshal (cited and rejected by the Shach C.M. 348:6) rules that if the agent does not realize that he is performing a sin, the rule of Ein Sheliach LeDvar Averiah does not apply. The Israeli Chief Rabbinate obviously does not believe that it is sinning when it sells the farmland to a Nochri, and the sale is therefore valid (even if it is in fact forbidden).

A third response is that the Rama (C.M. 388:15) rules that if it is "established" that this agent will perform the transgression, then Ein Sheliach LeDvar Averiah does not apply. The Israeli Chief Rabbinate has undoubtedly established the fact that it engages in the Heter Mechirah. Although the Shach (C.M. 388:67) vigorously disputes this ruling of the Rama, one might be able combine these three arguments in addition to the possibility that the Rabbinate does not violate Lo Techaneim at all to argue that the sale of the farmland to the Nochri is valid.

Next week, we will (IY"H and B"N) complete our survey of the historic dispute regarding the Halachic viability of the Heter Mechirah.