Shmittah 5761 - Part One by Rabbi Chaim Jachter



Since the coming year is a Shmittah year, we will devote the next four issues to discussing Shmittah related issues.  In this issue, we will outline some of the basic Halachot that pertain to Shmittah.  In the next issue, we hope to discuss whether Shmittah observance in our time is a biblical or rabbinical requirement.  Then we plan to devote two issues to the debate over the Heter Mechira (the practice of the Israeli Chief Rabbinate to transfer title of the farmland in Israel to an Arab for the duration of the Shmittah year).  Our discussion will be based largely on an outstanding work by Rav Zev Whitman entitled Likrat Shmittah Mamlachtit Bimidinat Yisrael (Shmittah in a Modern Jewish State: A Practical Model for Shmittah Implementation) published by the Zomet Institue in Gush Etzion.  Heretofore we shall refer to this work simply as Shmittah Mamlachtit.  Rav Whitman describes his experiences as Rav of Kibbutz Kfar Etzion for the 5747 Shmittah year and his proposals for nationwide observance of Shmittah with minimal reliance on the controversial Heter Mechira.


The Prohibitions

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

A fundamental question is debated as to the character 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 Shmittah year?  The Rambam is not clear regarding this issue.  On one hand, in his heading to Hilchot Shmittah V'yovel the Rambam describes the Mitzva 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 Shmittah V'yovel 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 direct working of 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 Shmittah Mamlachtit chapter seven.

It should be noted that it is forbidden to “improve trees” during Shmittah, but one may engage in activities that merely “maintain trees” (Avoda Zara 50b).  The Rambam (Hilchot Shmittah V'yovel 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 Shmittah Mamlachtit 72-81.


The Otzar Bait Din

One may ask how people in Israel eat fruit and vegetables during the Shmittah year if the Torah prohibits harvesting during Shmittah.  First, it should be noted that the prohibition to harvest refers to large-scale harvesting (Yerushalmi Shviit 8:6).  Second, the Ramban (25:7) cites a Tosefta (Shviit 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 Bait Din.  Although the Rambam does not cite this Tosefta, the Otzar Bait Din system has become widely accepted among Halachic authorities (see sources cited in Shmittah 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 Bait Din is entirely compatible with modern market conditions (Techumin 13:53-75 and Shmittah Mamlachtit chapters eleven and twelve). 


Kedushat Peirot Shmittah

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

Although Tosafot (Sukkah 39a s.v. Sh'ein) writes that there are an infinite number of rules concerning the proper way to treat fruit that is endowed with Kedushat Shmittah, the issues may be reduced to five categories of Halachot:

First, the Torah (Shemot 23:11) commands that the produce of Shmittah be Hefker (ownerless).  Thus, one does not remove Terumot and Maaserot from the produce of the seventh year.  The Bait Yosef on one hand and the Maharit and the Mabit on the other hand 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 Bait Din seems to be empowered to insure that fields not be abused during the Shmittah year because of this rule (see Shmittah 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 Shmittah V'yovel. 

The third rule is that the Shmittah produce must be eaten and not wasted.  This entails that the Shmittah produce must be used to its maximum utility.  The Rambam presents these laws in the fourth chapter of Hilchot Shmittah V'yovel.  Contemporary works on the laws of Shmittah devote much attention to the precise implementation of this rule.

The fourth rule 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 non-Jew 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 Shmittah 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.  The Rishonim debate how to fulfill this Mitzva.  The Rambam (Hilchot Shmittah V'yovel 7:3) believes that the produce must be burned.  Most Rishonim, though, agree with the Ramban (Vayikra 25:7) that Biur involves one declaring the Shmittah produce to be Hefker.  See the Raavad (commenting on Hilchot Shmittah V'yovel 7:3) for a compromise opinion between the Rambam and Ramban.  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 Shviit 11:7).


Gezeirat Sephichim

Chazal prohibited eating anything that grew during the Shmittah year even if it grew on its own (Gezeirat Sephichim).  The reason for this prohibition is lest one quietly sow his field in the middle of the night and claim that the food grew on its own and may be eaten (Rambam Hilchot Shmittah V'yovel 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 rabbinical decree does not apply today since it is virtually impossible to sow a field today without one 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 a great leniency of the Chazon Ish is accepted in practice.  The Chazon Ish rules (Shviit 22:2) that the Gezeirat Sephichim does not apply to produce that was planted before the beginning of the Shmittah year.  Farmers who do not rely on the Heter Mechira plant their crops immediately before the Shmittah year.  These crops will subsequently be harvested under the auspices of the Otzar Bait Din and will be endowed with Kedushat Peirot Shviit, but the Gezeirat Sephichim will not apply to them.  For a discussion of the practical implementation of this ruling of the Chazon Ish, see Shmittah Mamlachtit pages 129-130.  



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

Shmittah 5761 - Part Two by Rabbi Chaim Jachter

The Halachic Status of Medinat Yisrael by Rabbi Chaim Jachter