Rabbi Jachter's Halacha Files

(and other Halachic compositions)

Tazria-Metzora

3 Iyar 5767

April 21, 2007

Vol.16 No.27

Shemittah 5768 - Part 1

by Rabbi Chaim Jachter

Since the coming year is a Shemittah year, we will devote the next four issues to discussing Shemittah-related issues. We begin to discuss this Eretz Yisrael topic this week in honor of the upcoming celebration of Yom HaAtzma'ut. In this issue, we will outline some of the basic Halachot that pertain to Shemittah. In the next issue, we will discuss whether Shemittah observance in our time is a biblical or rabbinical requirement. The final two issues will address the debate regarding the Heter Mechirah (the practice of the Israeli Chief Rabbinate to transfer title of the farmland in Israel to an Arab for the duration of the Shemittah year). Our discussion will be based largely on an outstanding work by Rav Zev Whitman entitled Likrat Shemittah Mamlachtit BeMedinat Yisrael (Shemittah in a Modern Jewish State: A Practical Model for Shemittah Implementation) published by the Zomet Institute in Gush Etzion. We shall refer to this work simply as Shemittah Mamlachtit. Rav Whitman describes his experiences as Rav of Kibbutz Kfar Etzion for the 5747 Shemittah year and his proposals for nationwide observance of Shemittah with minimal reliance on the controversial Heter Mechirah.

The Prohibitions

The Torah (VaYikra 25:4-6) outlines four activities that are forbidden during the Shemittah year- sowing, pruning, harvesting, and picking grapes. Plowing a field also might be biblically forbidden (see Shemot 34:21 and the sources cited in Shemittah Mamlachtit chapter ten). All other agricultural activities are forbidden only rabbinically (Rambam Hilchot Shemittah VeYoveil 1:3 and 1:10).

A fundamental question exists regarding the nature of these prohibitions. Does the Torah command us to refrain from working the land or does the Torah obligate us to have our land rest during the Shemittah year? The Rambam is not clear regarding this issue. On one hand, in his heading to Hilchot Shemittah VeYoveil the Rambam describes the Mitzvah as having the land rest. On the other hand, in the body of these Halachot, he presents the prohibition as refraining from working the land (see Hilchot Shemittah VeYoveil 1:1).

A significant ramification of this issue is the question whether one may work the land indirectly (Grama). If the prohibition is to work the land, then the prohibition might be restricted to directly working the land. If, however, the Torah obligates us to have the land rest, then even Grama would be forbidden in this context. Rav Zvi Pesach Frank (Kerem Zion 10) is inclined to rule leniently regarding this issue. For a discussion of this issue and its practical implementation, see Techumin 7:53-82 and Shemittah Mamlachtit chapter seven.

It should be noted that it is forbidden to "improve trees" during Shemittah, but one may engage in activities that merely "maintain trees" (Avodah Zara 50b). The Rambam (Hilchot Shemittah VeYoveil 1:10) explains that had the rabbis forbidden "maintaining trees", then all of the trees in Israel would die. It is, however, difficult to decide which activities constitute "maintaining trees" as opposed to "improving trees." For a discussion of this issue, see Techumin 7:49-52 and Shemittah Mamlachtit 72-81.

The Otzar Beit Din

One may ask how people in Israel eat fruit and vegetables during the Shemittah year if the Torah prohibits harvesting during Shemittah. First, it should be noted that the prohibition to harvest refers to large-scale harvesting (Yerushalmi Sheviit 8:6). Second, the Ramban (25:7) cites a Tosefta (Sheviit 8:1-4; see Tosefta Kifshuta regarding the precise text of this Tosefta) that limits the prohibition of harvesting to individuals. The community may, however, engage in large-scale harvesting and nationwide distribution of the harvest. This system is referred to as the Otzar Beit Din. Although the Rambam does not cite this Tosefta, the Otzar Beit Din system has become widely accepted among Halachic authorities (see sources cited in Shemittah Mamlachtit page 177 note 2) and is commonly practiced today. Rav Zev Whitman develops at length how such a system can be practically implemented on a national scale in Israel today. He shows that an Otzar Beit Din is entirely compatible with modern market conditions (Techumin 13:53-75 and Shemittah Mamlachtit chapters eleven and twelve).

Kedushat Peirot Shemittah

Fruits that blossom during Shemittah, vegetables that are harvested during Shemittah, and grains that grow their first third of growth during Shemittah are endowed with holiness (Kedushat Peirot Shemittah) and must be treated in a special manner. A great controversy exists between the Beit Yosef on one hand and the Maharit and Mabit on the other hand whether produce that grows on land owned by non-Jews is endowed with Kedushat Peirot Shemittah. We shall return to this controversy when we examine the issue of the Heter Mechirah.

Although Tosafot (Sukkah 39a s.v. SheEin) write that there are an infinite number of rules concerning the proper way to treat fruit that is endowed with Kedushat Shemittah, the issues may be reduced to five basic categories of Halachot.

First, the Torah (Shemot 23:11) commands that the produce of Shemittah be Hefker (ownerless). Thus, one does not remove Terumot and Maaserot from the produce of the seventh year. The Beit Yosef and the Maharit/Mabit vigorously dispute whether the Torah automatically renders all produce of the seventh year to be Hefker or requires the owner of the land to pronounce the produce to be Hefker. A practical ramification of this dispute is whether one must remove Terumot and Maaserot from produce taken from fields whose owners did not pronounce its produce to be Hefker. The Otzar Beit Din seems to be empowered to insure that fields not be abused during the Shemittah year because of this rule (see Shemittah Mamlachtit pages 213-216).

The second rule is that one may not use produce of the seventh year for commercial purposes. The Torah (VaYikra 25:6) states that the produce of the seventh year is intended for eating. Chazal (Pesachim 52b) infer from this that the produce is "for eating and not for selling." The Rambam delineates the parameters of this prohibition in the sixth chapter of Hilchot Shemittah VeYoveil.

The third principle is that the Shemittah produce must not be wasted. This entails that the Shemittah produce be used to its maximum potential. The Rambam presents these laws in the fourth chapter of Hilchot Shemittah VeYoveil. Contemporary works on the laws of Shemittah devote much attention to the precise implementation of this rule.

The fourth principle is that one may not export produce of the seventh year outside of the land of Israel. In addition, the produce may not be given to a Nochri to eat. This presents a particular challenge in modern times, as it is not economically feasible to engage in large-scale agricultural endeavors in Israel unless most of the produce will be exported. Discussions of this issue and potential solutions to this problem can be found in Techumin (7:34-48) and Shemittah Mamlachtit chapters fourteen and fifteen.

The fifth rule is that of Biur. The Torah (VaYikra 25:7) teaches that we may eat of the produce of the seventh year so long as the item that one wishes to eat remains readily available in the fields. When the item is no longer available in the fields one must engage in Biur (destruction). The Rishonim debate precisely how to fulfill this Mitzvah. The Rambam (Hilchot Shemittah VeYoveil 7:3) believes that the produce must be burned. Most Rishonim, though, agree with the Ramban (VaYikra 25:7) that Biur involves declaring the Shemittah produce to be Hefker (see the Raavad to Hilchot Shemittah VeYoveil 7:3 for a compromise opinion). The opinion of the Ramban is followed in practice (Pe'at HaShulchan chapter 27, Aruch HaShulchan HeAtid 27:8, Rav Avraham Yitzchak HaKohen Kook Teshuvot Mishpat Kohen 83, and the Chazon Ish Sheviit 11:7).

Gezeirat Sephichim

Chazal prohibited eating anything that grew during the Shemittah year even if it grew on its own (Gezeirat Sephichim), lest one quietly sow his field in the middle of the night and claim that the food grew on its own (Rambam Hilchot Shemittah VeYoveil 4:2). This decree does not apply to fruit grown on trees that are not planted every year. Rav Shlomo Zalman Auerbach (see the letters printed at the end of Maadanei Aretz) suggests that this decree does not apply today since it is virtually impossible for a person to sow a field today without drawing attention to what he is doing. The fact that tractors are used for sowing and commercial fields occupy large tracts of land may render this decree inapplicable. Although Rav Shlomo Zalman does not conclude that the Gezeirat Sephichim no longer applies, his reasoning may be part of the reason why the ruling of the Chazon Ish (Sheviit 22:2) that the Gezeirat Sephichim does not apply to produce that was planted before the beginning of the Shemittah year is accepted.

Farmers who do not rely on the Heter Mechirah plant their crops immediately before the Shemittah year. These crops will subsequently be harvested under the auspices of the Otzar Beit Din and will be endowed with Kedushat Peirot Sheviit, but the Gezeirat Sephichim will not apply to them. For a discussion of the practical implementation of this ruling of the Chazon Ish, see Shemittah Mamlachtit pages 129-130.

Conclusion

Rav Shlomo Zalman Auerbach (Teshuvot Minchat Shlomo 1:44) bemoans the widespread ignorance of the Shemittah laws. It is appropriate for us to familiarize ourselves with these Halachot in preparation for the upcoming Shemittah year.