Heter Mechira - Part Two by Rabbi Howard Jachter

(2000/5760)

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 (אין קנין לנכרי בארץ ישראל).  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 (יש קנין לנכרי בארץ ישראל).  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 יש קנין לנכרי בארץ ישראל 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 אין קנין לנכרי בארץ ישראל.  Indeed, the Rambam in a responsum (Freiman edition number 132) explicitly states that even today the Halacha follows the opinion that אין קנין לנכרי בארץ ישראל.

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 אין קנין לנכרי בארץ ישראל 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 אין קנין, 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 כיבוש יחיד (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.

Cooking Milk and Meat in One Oven by Rabbi Howard Jachter

The Heter Mechira  - Part One by Rabbi Chaim Jachter