From Parshat Bemidbar Sinai Vol.9
No.32
Date of issue: Date of issue: 29 Iyar 5760 -- June 3, 2000
Heter Mechira - Part II
by Rabbi Howard Jachter
Introduction
Last week, we began discussing the controversial Heter Mechira (the
practice of the Israeli Chief Rabbinate to sell farmland to a non-Jew
to avoid Shmittah restrictions). We reviewed whether the sale
itself is permitted in light of the Torah prohibition to sell
Israeli real estate to a non-Jew. This week we shall review the
debate whether the sale is effective. Then we will review the
debate whether the sale can affect the laws of Shmittah. We will
conclude with a discussion of how the consumer should deal with
products whose Kashrut status hinges on the validity of the Heter
Mechira.
Is the Sale Effective?
In order for any transaction to be
Halachically valid, the parties to the sale must have seriousness
of intent (Gemirat Daat, see Kiddushin 26b). Thus, some
authorities argue, the Heter Mechira lacks validity since the
parties are not truly serious about the sale. These authorities
note that the sale is not registered with the government land
registry. One of the most vociferous opponents of the Heter
Mechira, the Ridbaz of Tzefat, had the following to say about
this issue:
Think about it: If the Rav of Yaffo writes on a piece of paper a bill of sale to a barefoot Arab that all the land in Eretz Yisrael that is owned by Jews is owned by the Arab, does this mean that the Arab actually owns the land and thereby removes the sanctity from the land? The bill of sale is worthless except for use as a bottle cap!
The proponents of the Heter Mechira argue that if the sellers clarify that the sale will be valid despite the fact that it is not registered with the land registry then the sale is valid. They cite Kiddushin 26a as a precedent for this assertion. They also cite a ruling of the Teshuvot Divrei Chaim (Orach Chaim 2:37) that Mechirat Chametz is Halachically valid even if the sale is not valid in the eyes of civil law.
The Impact of the Sale -
Criticism of the Heter Mechira
Even if the sale is permitted and valid,
the Heter Mechira still might not have impact on the holiness of
Eretz Yisrael. The opponents to the Heter Mechira point out that
the Halacha (Rambam Hilchot Terumot 1:10) follows the Talmudic
opinion (see Gittin 47) that non-Jewish ownership of land in
Eretz Yisrael does not affect the sanctity of the Land (Ein
Kinyan L'Nochri B'eretz Yisrael). Thus, even if the non-Jew owns
the land, all the laws of Shmittah nevertheless apply.
The First Defense
The proponents of the Heter Mechira present
two responses to this formidable challenge. First, they cite the
opinions that since the holiness of Eretz Yisrael in our times is
merely rabbinical in nature (Shulchan Aruch Yoreh Deah 331:2), we
may follow the Talmudic opinion that believes that non-Jewish
ownership of Israeli land does remove the holiness of the Land (Yesh
Kinyan L'Nochri B'eretz Yisrael). According to this opinion, non-Jewish
ownership of land in Israel removes the Shmittah restrictions
from that land. This approach is suggested by the Sefer Hateruma
(Hilchot Eretz Yisrael) and is acccepted as normative by the
Vilna Gaon (Biur Hagra Y.D. 331:6).
This argument is based on the statement of the Gemara (Gittin 47a) that all authorities agree that in Syria the opinion that Yesh Kinyan L'Nochri B'eretz Yisrael applies. Rashi (s.v. B'suryah) explains that the reason for this is because the obligation to observe the laws contingent upon Eretz Yisrael in Syria is only rabbinical in nature. The Sefer Hateruma and the Vilna Gaon extrapolate from the status of Syria to the status of Israel today where the obligation to observe the laws contingent on the Land is only rabbinical in nature.
Criticism of the First Defense
The Chazon Ish (Shviit 20:7) notes that the
Rambam clearly disputes the opinions of the Sefer Hateruma and
the Vilna Gaon. The Rambam is the primary authority who holds
that Kedushat Eretz Yisrael today is rabbinical in nature, yet he
never mentions that today the Halacha follows the view that Ein
Kinyan L'Nochri B'eretz Yisrael. Indeed, the Rambam in a
responsum (Freiman edition number 132) explicitly states that
even today the Halacha follows the opinion that Ein Kinyan L'Nochri
B'eretz Yisrael.
The Chazon Ish proceeds to note that the accepted practice in Israel since the time of Rav Yosef Karo (sixteenth century) has been to separate Terumot and Maaserot (with a Beracha!) from wine produced from grapes that were grown on Israeli land owned by non-Jews. This demonstrates that the accepted practice is to follow the opinion of the Rambam that even today the opinion that Ein Kinyan L'Nochri B'eretz Yisrael is normative. According to the Sefer Hateruma and the Vilna Gaon, there would be no need to tithe produce grown in land owned by a non-Jew.
The Second Defense
The second defense of the proponents of the
Heter Mechira is the opinion of Rav Yosef Karo that even
according to the opinion that says Ein Kinyan L'Nochri B'eretz
Yisrael, during the time that a non-Jew owns the Israeli land the
laws that apply to Eretz Yisrael do not apply to that land. Rav
Yosef Karo (Teshuvot Avkat Rochel 24 and Kesef Mishna to Rambam
Hilchot Terumot 1:10) infers this point from the following
passage in the Rambam (Hilchot Terumot 1:10):
A non-Jew who purchases land in Eretz Yisrael does not annul the obligation to observe the Mitzvot [that one must observe in Israel]; rather, the land [he has purchased] remains holy. Therefore, if a Jew subsequently repurchases that land from the non-Jew, the Jew is not considered to have engaged in Kivush Yachid (a private conquering of Eretz Yisrael - see Gittin 8). Rather, the Jew is biblically required to separate all tithes and bring Bikkurim [from produce grown in this property] as if the land was never owned by a non-Jew.
Rav Yosef Karo infers from the Rambam that one is obligated to separate tithes from the produce of the land only after the Jew has repurchased the land from the non-Jew. However, while the non-Jew owns the land, the laws that apply to Eretz Yisrael are not operative. Thus, Rav Yosef Karo rules that the laws of Shmittah do not apply to land that is owned by non-Jews. In the time of Rav Yosef Karo, Jews did not own land in Israel, and his ruling was relevant only to the produce that Jews purchased from the non-Jews. Indeed, the Pe'at Hashulchan (chapter 23) records that the accepted practice from the time of Rav Yosef Karo has been to treat the produce grown on non-Jewish owned land as not being endowed with Kedushat Peirot Shmittah.
This ruling of Rav Yosef Karo is the primary basis for the advocates of the Heter Mechira. They argue that Rav Karo's ruling and the custom to follow it demonstrate that if one transfers ownership of Israeli land to a non-Jew, the Shmittah laws do not apply to it.
Criticism of the Second Defense
The ruling of Rav Yosef Karo was vigorously
disputed by the Mabit (Teshuvot 1:11,21,217,336, and 3:45) and
the Maharit (Teshuvot 1:43). They challenged Rav Karo's
interpretation of Rambam Hilchot Terumot 1:10. They point out
that the Rambam (Hilchot Shmittah V'yovel 4:29) writes that the
Gezeirat Sephichim does not apply to Israeli land owned by non-Jews.
The Rambam explains that the reason for this is that the Gezeirat
Sephichim was instituted to discourage Jews from violating
Shmittah and thus is not relevant to produce grown in a field
owned by a non-Jew. The critics of Rav Karo's ruling argue that
if the laws of Shmittah do not apply to produce grown in a field
owned by a non-Jew, why did the Rambam find it necessary to offer
a rationale why the Gezeirat Sephichim does not apply to a field
owned by a non-Jew? The Rambam simply could have stated that the
Shmittah laws do not apply to land owned by a non-Jew.
Moreover, the Chazon Ish (Shviit 20:7) challenges the assertion that the Jewish communities of Eretz Yisrael accepted the ruling of Rav Karo. He also notes that many Acharonim rejected Rav Karo's ruling. In addition, he points out that the Rambam in a responsum (number 22) clearly supports Rav Karo's critics' reading of Hilchot Shmittah V'yovel 4:29. The Chazon Ish argues that had the Pe'at Hashulchan been aware of this responsum of the Rambam he would have realized that his understanding of Hilchot Shmittah V'yovel 4:29 was flawed and the Pe'at Hashulchan would have reversed his decision.
Conclusion
We have seen that the Heter Mechira is a highly debatable
leniency. Both sides of the debate present reasonable arguments.
In fact, Rav Hershel Schachter and Rav Menachem Genack both
informed this author that Rav Yosef Dov Soloveitchik ruled that
the Orthodox Union's Kashrut department should not rely on the
Heter Mechira. Rav Soloveitchik argued that the Heter Mechira is
a highly debatable leniency upon which one may contemplate
relying upon only in case of very great need. Since such a
pressing need does not present itself in this country, there is
no room for us to rely on the Heter Mechira. The policy of the OU,
Kaf-K, OK, and Star-K is not to rely on the Heter Mechira.
According to Rav Soloveitchik, one should not eat Israeli vegetables that were harvested during the Shmittah year or food containing grains that reached a third of its growth during the Shmittah year. This is because of the Gezeirat Sephichim. A notable exception might be tomatoes that come from areas in Eretz Yisrael that were not sanctified by the Kedusha Sh'niya. One should consult his rabbi about this issue (and present his rabbi with up-to-date and accurate information regarding this question).
However, according to many authorities, one may eat Israeli fruit that blossomed during the Shmittah year, even if farmers who rely on the Heter Mechira grew the fruit. The fruit, though, must be treated with Kedushat Peirot Shviit. These authorities include Rav Moshe Feinstein (Teshuvot Igrot Moshe O.C. 1:186), the Chazon Ish (Shviit 10:6), and Rav Shlomo Zalman Auerbach (Teshuvot Minchat Shlomo 1:44). Please consult with your Rav about the issues raised in this essay.