Rabbi Jachter's Halacha Files

(and other Halachic compositions)

Parshiot Parashat Acharei Mot - Kedoshim

10 Iyar 5767

April 28, 2007

Vol.16 No.28

Shemittah 5768 - Part 2 of 2

by Rabbi Chaim Jachter

Introduction

This week, we shall explore whether Shemittah observance nowadays is required biblically or rabbinically. This question has great ramifications because one can rule more leniently regarding a rabbinic prohibition than a biblical prohibition. Indeed, the controversial Heter Mechirah can be contemplated only if Shemittah observance today is a rabbinic obligation. We shall also see that a minority view among the Rishonim asserts that nowadays we are not obligated to observe Shemittah at all.

Does Eretz Yisrael Retain its Kedushah in Our Times?

Eretz Yisrael was endowed with a special holiness from the time that Hashem promised the land to Avraham Avinu (see Kaftor VaFerach chapter ten). According to Rav Yehuda HaLevi (Sefer HaKuzari 2:14), this special quality was inherent in Eretz Yisrael from the time of Creation. Hashem refers to Eretz Yisrael as His land (Yoel 4:2), Eretz Yisrael is referred to (Shemuel I 26:19) as Hashem's Nachalah (portion), and the Torah (Devarim 11:12) tells us that Hashem's eye is always on Eretz Yisrael. These special qualities persist throughout the ages regardless of who controls the Land (see Kaftor VaFerach ibid., Teshuvot Chatam Sofer Yoreh Deah 23, and Rav Avraham Yitzchak HaKohen Kook's introduction to his work regarding Shemittah entitled Shabbat HaAretz).

The Gemara in many places (Yevamot 82, Arachin 32b, and Niddah 46b) records a Tannaitic debate whether Eretz Yisrael retains special holiness (Kedushah) during the periods of destruction. This holiness does not emanate from Hashem's presence in the Land as we described in the previous paragraph. Rather, this holiness stems from the Jewish People's possession of the Land. Hence, this aspect of the holiness of the Land of Israel might have elapsed when Bnei Yisrael were expelled from their Land.

The Tannaim debate whether this holiness of Eretz Yisrael elapsed subsequent to the destruction of the First Temple. The Gemara presents the dispute whether the first Kedushah (Kedushah Rishonah) initiated by Yehoshua upon conquering Eretz Yisrael was temporary or permanent in nature. Almost all Rishonim rule that the Kedushah Rishonah was temporary in nature (see, for example, Rambam Hilchot Beit HaBechirah 6:16 and Raavad to Hilchot Terumot 13:13).

Similarly, the Gemara records a debate whether the holiness initiated by Ezra upon leading the return to Eretz Yisrael (referred to as the Kedushah Sheniyah) dissipated upon the destruction of the Second Temple. The Rishonim discuss how to resolve this debate. One group of Rishonim (for example, Rambam Hilchot Beit HaBechirah 6:16 and Raavad to Hilchot Terumot 13:13) asserts that the Kedushah Sheniyah is permanent. The Rambam (ad loc) presents a particularly interesting and somewhat cryptic explanation as to why the Kedushah Sheniyah is permanent whereas the Kedushah Rishonah is regarded as temporary.

The Rambam's comments have engendered much discussion between Acharonim (see the sources cited in the Encyclopedia Talmudit, 2:217-218 notes 121 and 122 and Rav Yosef Dov Soloveitchik's explanation recorded in Al HaTeshuvah pp. 300-308). Another group of Rishonim asserts that the Kedushah Sheniyah also elapsed upon the destruction of the Second Temple. These authorities include the Sefer HaTerumah (Hilchot Eretz Yisrael) and Rabbeinu Simcha (cited by the Or Zarua, Avodah Zara 299).

It is important to note that the second group of Rishonim is far less prominent than the first. According to the first group, it is possible that nowadays we are biblically obligated to observe Shemittah. According to the second view, Shemittah observance after the destruction of the Second Temple cannot be biblically mandated, since the holiness of Eretz Yisrael has elapsed.

Rav Yosef Karo (Kesef Mishneh to Rambam Hilchot Shemittah VeYovel 4:25, 9:1, and 10:9) asserts that the Rambam believes that Shemittah observance today is biblically mandated. A number of Acharonim rule in accordance with this view, including the Netziv (Teshuvot Meishiv Davar - Kuntress Devar HaShemittah) and Rav Yechiel Michel Epstein (Aruch HaShulchan HeAtid 1:1). The Beit HaLevi (Teshuvot 3:1) concludes a lengthy review of the subject by stating that a majority of Rishonim believe Shemittah nowadays to be biblically mandated.

Another consideration in favor of the view that Shemittah today is biblically mandated is the intriguing possibility that the State of Israel's control over portions of Eretz Yisrael revives the Kedushah Sheniyah and perhaps even the Kedushah Rishonah. For discussions of this issue, see Teshuvot Tzitz Eliezer (10:1), Rav Shlomo Yosef Zevin (Techumin 10:24-25), and Rav Zev Whitman (Likrat Shemittah Mamlachtit BeMedinat Yisrael pages 156-164)

The Disputed Requirement of Biat Kulchem

Other authorities, among them the Maharit (Teshuvot 1:25) and Rav Chaim Soloveitchik (commentary to the Rambam Hilchot Shemittah VeYovel 12:16), argue that the Rambam believes that Shemittah today is only rabbinically mandated despite the fact that the Kedushah Sheniyah is permanent. These authorities note that the Rambam (Hilchot Terumot 1:26) asserts that the contemporary obligation to remove Terumot and Maaserot is only rabbinic in nature because not all of the Jewish people reside in the Land of Israel (Biat Kulchem). This unfortunate situation has existed since the exile of the ten tribes that occurred towards the end of the period of the First Temple. The Rambam's ruling is based on a passage that appears in Ketubot (25a). The Gemara states that the obligation to separate Challah today is only rabbinic in nature due to the fact that not all Jews reside in the Land of Israel. The Rama (Yoreh Deah 331:2, in the context of the Halachot of Terumot and Maaserot) notes the common practice to accept this explanation of the Rambam.

The Rambam extrapolates the requirement for Biat Kulchem from the laws of Challah to the laws of Terumot and Maaserot. The Maharit and Rav Chaim believe that the Rambam applies this principle to the laws of Shemittah as well. A quite compelling proof to this argument is the fact that the Pasuk the Rambam cites as the source for the requirement of Biat Kulchem is in the context of Shemittah. Rav Yosef Karo and those who follow his view argue that the Rambam mentions the requirement of Biat Kulchem only in the context of the laws of Terumot and Maaserot but not in the context of the laws of Shemittah.

A very interesting issue emerges from the prediction that within the next few decades a majority of the Jewish People will be residing in the Land of Israel. Indeed, some claim that the majority of Jews, as defined by Halacha, already reside in Eretz Yisrael. For a discussion of the impact this may have on the requirement of Biat Kulchem, see Rav Shlomo Yosef Zevin's article in Techumin 10:24-25.

The Possible Link Between Shemittah and Yovel

The Gemara (Gittin 36) addresses the question whether the requirement to observe Shemittah today is mandated biblically or rabbinically. The Gemara indicates that the matter is disputed between Rebbe and the Rabbanan. Rebbe believes (as explained by Rashi s.v. BeShviit) that the laws of Shemittah and the laws of Yovel are linked. Rebbe argues that since Yovel is inoperative, Shemittah is inoperative (on a Torah level) as well. The Rabbanan reject this link between the laws of Shemittah and Yovel.

It is not clear which of these opinions is accepted as normative. Usually, Halacha follows the majority view, in which case the view of the Rabbanan that Shemittah is a Torah obligation would be accepted. On the other hand, the Yerushalmi (cited by Rashi ibid.) presents Rebbe's view as normative.

The Unique View of the Baal HaMaor

The Baal HaMaor (cited by the Raavad Gittin 19a in the pages of the Rif) rules that Shemittah does not apply at all today since the Halacha follows Rebbe, arguing that Rebbe believes that in today's circumstances Shemittah does not apply even on a rabbinic level. The Baal HaMaor believes that those who observe Shemittah nowadays are merely engaging in an act of piety (Midat Chassidut). The Baal HaMaor is cited by the Rama (Choshen Mishpat 67:1) in the context of the laws of the cancellation of loans during the seventh year.

Two basic attitudes regarding this opinion have emerged in the debate over the observance of Shemittah in the past hundred years. On the one hand, Rav Ovadia Yosef (Teshuvot Yabia Omer 3:19) points out that a number of Rishonim subscribe to the view of the Baal HaMaor. Hence, his view can be used as a lenient consideration, especially regarding the implementation of the Heter Mechirah. The Beit HaLevi (Teshuvot 3:1), on the other hand, concludes that the Baal HaMaor's view is intended to apply only to the issue of the cancellation of debts during the seventh year. According to this view, the Baal HaMaor is entirely irrelevant to the debate surrounding the Heter Mechirah.

Conclusion

It is far from clear whether we are obligated to observe Shemittah today on a biblical or rabbinic level. We have cited the Aruch HaShulchan HeAtid and the Netziv, who rule that we are obligated to observe Shemittah on a Torah level. However, most twentieth century authorities rule that Shemittah today is only a rabbinic obligation. These authorities include Rav Avraham Yitzchak HaKohen Kook (introduction to Shabbat HaAretz), the Chazon Ish (24:7), Rav Shlomo Yosef Zevin (LeOr HaHalacha page 110), and Rav Shlomo Zalman Auerbach (Teshuvot Minchat Shlomo 1:44). This appears to be the normative opinion. See Rav Hershel Schachter's Eretz HaTzvi (chapter 30) for a discussion of the special status of Jerusalem in this context.