Rabbi Eliezer Melamed
Rabbi Eliezer MelamedPR photo

Two weeks ago, I explained the halakhic foundations of the heter mechira (the sale of Israeli farmland to a non-Jew to avoid the prohibition of working the land in Israel during the Sabbatical shmitta year), according to which farmers are permitted in the shmitta year to continue to grow produce, legumes, vegetables and fruits.

The primary feature of the heter is based on the fact that while the field is sold to a non-Jew, in the opinion of the majority of poskim (Jewish law decisors), there is no obligation of the mitzvot hat’luoyt ba’aretz (Eretz Yisrael-dependent mitzvot), and therefore the laws of shmitta do not apply. Although there are machmirim (poskim who rule stringently) who believe that even when a field is sold to a non-Jew the obligation remains, such as Mabit and others, since in the opinion of the majority of poskim, shmitta at this time is d’rabanan (rabbinic), the halakha goes according to the mekelim (lenient poskim).

This, in addition to the fact that in the opinion of some of the Gedolei Rishonim, for two reasons, there is currently no chova (Torah obligation) to keep shmitta at all, and in their opinion, there is also no need at all for a heter mechira.

1) Some poskim say that since the annulment of the Sanhedrin which sanctifies months and the determines Jewish leap years, the obligation of shmitta is canceled even rabbinically, and only because of middat chassidut (a pious/meritorious act), when possible, is shmitta observed (ReZaH, Raavad).

2) The Rishonim differed on the date of the shmitta year. We follow the opinion of the majority of poskim that shmitta is this year, 5782, but according to Rashi and Rosh, shmitta was last year, 5781, and according to Raavad, it should have been in 5779.

After taking all these views into consideration, the heter mechira has a well-established basis, far beyond the various heterim (halakhic permits) used by observant Jews in different situations.

Nevertheless, there are still those who ask: ideally, shmitta should be kept, and the heter mechira is used only in a situation of a sha’at dachak (time of urgency). Are we still in a sha’at dachak today? After all, by the grace of God, our situation today is immeasurably better than the first days of settlement of Eretz Yisrael.

The State of Israel is already considered a rich and developed country. Thanks to scientific developments and new machines, today, a small number of people produce a tremendous amount of crops. From a situation where the majority of people made a living from agriculture, we have reached a situation where only about one and a half percent of the population earns a living from farming. The economic importance of agriculture has also declined, and now stands at only about two percent of the national production. In light of all this, is there still room to use the heter?

A: Indeed, we have made great progress on the economic side, but on the other hand, the unfortunate fact that the majority of the public does not keep the commandments appropriately, greatly affects our situation. We will examine the issue from three aspects: 1) the individual farmer. 2) The responsibility for the public kashrut system. 3) The State as a whole.

For the Individual Farmer it Clearly is a Time of Urgency

The individual farmer who wishes to keep shmitta, has to compete with farmers who do not. Since the cost of a farmer’s infrastructure is very high today, to cover these costs in six years compared to the seven years of his competitors, he would have to raise the prices of his produce during the six years. In addition, he needs to support himself and his family and save for retirement in six years, while his competitors do so in seven years.

If he wishes to exist at an acceptable standard of livging during the six years, he would have to his raise prices; however, if his prices are high, buyers will prefer his competitors. If he sells at their prices, his investments and labor may no longer pay off. The clearest measure of this was obtained upon asking the farmers themselves, what they would do if they had to stop working in the shmitta year. Today, the majority of them feel that, having no other choice, they would be forced to change professions. This being the case, it is clear that their personal situation is halakhically considered a sha’at dachak, and they are permitted to use the heter mechira.

In other words, the farmer’s standard of living today is not measured compared to their standard one hundred and thirty years ago when the heter was established. Rather, it is compared to today’s accepted standard of living. If farmers today reach a state of urgency that would force them to look for another job, it is a clear sign that they are considered to be in a state of sha’at dachak, and it is fitting for them, le’chatchila (from the outset), to use the heter.

They should not be criticized, rather, praised for their devotion to the land and growing the holy fruits of Eretz Yisrael, thus fulfilling the mitzvah of yishuv ha’aretz (the Torah commandment to settle the Land of Israel) which is equal in weight to all the mitzvot. Nevertheless, someone who has the ability to stop working in the shmitta year – ‘kodesh ye’a’mare lo’ (he is called holy), and we should encourage him to do so, and even act to allocate state funds for farmers who stop working in the shmitta year.

The Responsibility for the Entire Kashrut System

Since the majority of farmers are masoratiim (traditional) or chilonim (non-observant), there is no chance they will comply with the demand to stop working completely in the shmitta year. However, because the vast majority of them respect tradition, when they are offered to sell the fields in order to expropriate the obligation of shmitta, they do so willingly. Consequently, it is a sha’at dachak, and the rabbis should encourage them to sell their fields in the shmitta year, in order to save them from transgression.

In addition, if they do not sell the fields, the fruits they grow will be holy with kedusha of Shivi’it, be distributed throughout the country, and in the interim, the traditional and secular public will transgress the prohibition of engaging in commerce of such fruits, and neglect their holiness. Sometimes, observant Jews may also inadvertently falter in these transgressions.

Once more, this is considered a sha’at dachak, because in the present situation of Israel’s society, where the meticulous in observance of mitzvot are a minority, it is impossible to prevent the distribution of the fruits with kedushat Shivi’it, and therefore, it is fitting for rabbis to perform the mechira and expropriate kedushat Shivi’it from the fruits grown, lest the general public misuse them.

Moreover, if in the shmitta year kedushat Shivi’it fruits are distributed without supervision and in contradiction of halakha, the national kashrut system is liable to be breached for all seven years.

The Significance for the State Budget

Although the percentage of agriculture in Israel’s total national product is only about two percent, since we are talking about an entire country, these are huge sums. In other words, if the state wants to finance stopping agricultural work in the shmitta year, it would have to invest about ten billion shekels – in part, to compensate the farmers, and also to cover the state’s coffers’ deficit, resulting from the loss of farmers' taxes. Such a cut in the state budget is likened to a sha’at dachak.

True, in difficult years, the State of Israel is forced to make such budget cuts, and even larger ones. Nevertheless, these cuts are painful and difficult, and spread across all government ministries, including areas in which the cuts border on life-saving circumstances. For example: postponing the expansion of hospitals for the reception of patients; postponing the construction of additional operating rooms; delaying the construction of roads; delaying the acquisition of sophisticated weapons, and postponing the establishment of additional police units to deal with crime. The cuts may also require a reduction in benefits for children, the poor, and the elderly, or at the very least, delay planned increases in these budgets. The budget cuts would also harm the education system, including cuts of at least hundreds of millions of shekels in the budget for yeshivas.

The Burden Will Fall Mainly on the Religious and Haredi Public

Furthermore, in the population’s current composition, chances are most of the burden of the cuts will fall on issues important to the religious and haredi public. In other words, mainly at the expense of yeshiva budgets and the religious and haredi education systems.

Presumably, if the representatives of the religious and haredi public demand that the state fund shmitta, the representatives of the secular and traditional public will demand that most of the cuts be in areas concerning the religious and haredi public. In such a situation, the prominent rabbis would most likely decide it would be better not to swing the sword of cuts and harm numerous undertakings which are all Torah mitzvot, in order to enhance the observance of a mitzvah whose validity today is rabbinic or middat chassidut, and can be preempted by the heter mechira.

The Path to Shmitta Observance

In the long-term, however, the State of Israel’s flourishing economic situation allows us to plan a path to full observance of shmitta, provided it is done gradually with the cooperation of all parts of society. After all, the government's budget includes many clauses which do not border on pikuach nefesh, and are intended for the conservation of a decent social life according to the will of the public and its representatives.

Since these clauses entered the budget gradually and in times of prosperity, an effort is made to maintain them even in difficult times. And just as even in difficult times there are almost no cuts in formerly agreed salaries of civil servants and teachers, similarly, stopping work in the shmitta year will eventually become a benefit Israeli farmers are entitled to, and even in difficult times, this agreed system will not be harmed.

Already in previous shmittas, certain steps were taken in this direction, and we must strive to strengthen them, and thus, Israeli farmers will attain the blessing of ceasing work in the shmitta year, without their economic status being harmed as a result.

Those Who Boycott Fruits of the Heter Mechira

Some argue that it is forbidden to eat produce grown within the framework of the heter mechira, however their words run contrary to the rules of halakha, and are based on the sin of humiliating Talmidei Chachamim of the most severe degree. For even when the fruits are grown and tended to in outright prohibitions, in the opinion of the majority of poskim, they may be eaten.

And although some poskim disagree and forbid the produce to be eaten, since the opinion of the majority of poskim is to rule leniently, and since additionally, shmitta at this time is rabbinic, halakha follows the mekelim (Peninei Halakha: Shivi’it 3:8).

Consequently, the machmirim ruling is contrary to the rules of halakha. Kal ve’chomer (all the more so) when the farmers are not working in a prohibited way, rather, according to the halakhic ruling of prominent rabbis, and therefore, there is no reason at all to claim that the produce is forbidden.

Furthermore, so as to consider the opinions of individual poskim in a mitzvah d’rabanan, these machmirim cancel two great mitzvot from the Torah:

1) the mitzvah of yishuv ha’aretz (settling the Land of Israel), for by means of the heter mechira, we strengthen the settlement of the Land, which is a mitzvah from the Torah equal in weight to all the mitzvot.

2) Panning heter mechira leads to purchasing produce grown by non-Jews. It is a mitzvah from the Torah to prefer to buy from our Jewish brother, as the Torah says: “Thus, when you buy or sell to your neighbor [ami’techa]” (Leviticus, 25:14), and from this, our Sages learned that when it is possible to buy from our Jewish brother or from a non-Jew, it is a mitzvah to prefer our Jewish brother.

What Fruits are the Most Mehudar to Eat

In conclusion: the products of the heter mechira are the most mehudar (highest level) to eat in the shmitta year, since the heter is well-established, and by eating them, one contributes to the mitzvah of yishuv ha’aretz, and strengthens our fellow farmers. (Regarding the fruits of Otzar Beit Din, see “Peninei Halakha: Shivi’it”, Chapter 8, a shmitta method whose cultivation involves halakhic problems of melachot (agricultural types of work) and sechora (commerce) that are forbidden in the opinion of many poskim, and therefore, the fruits of the heter mechira are preferable.

Nevertheless, I wrote (ibid 9:3) that fruits grown in the framework of Otzar Beit Din may be eaten, and since Otzar Beit Din’s intention is le’Shem Shamayim (for the sake of Heaven), there is room to strengthen them, provided they are not more expensive than the price of ordinary fruit, for then one enters into the question of the prohibition of sechora).

This article appears in the ‘Besheva’ newspaper and was translated from Hebrew.