A court case regarding illegal construction has led to unexpected results for those who do not want to violate the Torah’s shemittah-year laws.
The Petach Tikvah District Court handed down a ruling last week in a case in which the defendants were charged with building an industrial and shopping area – on land that the Israel Lands Administration (ILA) had slated for agricultural use.
The defendants presented, among other technical excuses, an original defense: The land in their central-Israel moshav had been formally sold to a non-Jew in honor of the Shemittah year, and therefore the Lands Administration had no say in the matter.
The Shemittah year is a once-in-seven-years affair, during which the Bible forbids agricultural work on Jewish-owned land in the Land of Israel. One of the controversial approaches to this issue, for Israelis who either can’t or won’t observe Jewish Law in this matter, is to sell Israel’s agricultural land in a wholesale manner to a non-Jew. This approach, known as the heter mechira, was made famous – though not originated – by Rabbi Avraham Yitzchak HaCohen Kook nearly 100 years ago. Though the hareidi-religious world largely does not accept this “sale” as valid, it has been endorsed by many leading rabbis, and is also the official policy of the State of Israel.
The court totally rejected the “lands were sold to non-Jew” defense, providing four reasons:
- The illegal buildings stood and stand on the land before and after Shemittah.
- Even if the ILA doesn’t own the land, it is still responsible for managing it.
- Unlike other sellers, the builders were unable to prove that they had actually had their land sold.
- The Shemittah sale is valid only for Halakhic [Jewish legal] purposes.
Only the Supreme Court Can Decide
Rabbi Yoel Friedman of the Torah and Land Institute – founded and long based in Gush Katif, and now operating in Ashkelon – is not overly concerned. “For one thing,” he told Israel National News, “legal experts have informed us that the law of the land is not determined or interpreted by regular courts, but only by the Supreme Court. If the Supreme Court had handed down this ruling, it would be significant... In fact, the law was changed some 30 years ago, at the initiative of then-MK Rabbi Chaim Druckman, and states that the Shemittah sale is valid for all purposes."
State Recognition Not Critical
“Secondly,” Rabbi Friedman explained, “state recognition of a sale is not necessarily critical for the sale to be valid. This is a matter of dispute among the poskim [rabbinic decisors], and it certainly cannot be stated absolutely that lack of State recognition of a sale disqualifies it. Even Rabbi Yaakov Blau, of the hareidi-religious Eida Hareidit, ruled that if property is sold from one to another, the sale is valid even if the authorities do not recognize it as such.”
Legal Fiction - With Emphasis on the "Legal"
Furthermore, some say that even a "legal fiction" is legal. Rabbi Ze'ev Vitman, formerly the Rabbi of Israel's Tnuvah Cooperative and head of the official Shemittah commission, has written that even though the court called the sale a legal fiction, this means that it is still legal - a sale that is legal according to all the rules, even though it might be for a purpose other than that of a real sale.
Rabbi Friedman noted that Rabbi Chaim Druckman, who served as a Knesset Member from 1977 to 1988 and from 1999 to 2003, initiated a change in the Land Sales Law. The change stipulated that a sale that was effected for and with the approval of the Chief Rabbinate Council, for the purpose of Shemittah, is totally legal and valid in the State of Israel even without its registration in the tabu (land registry).
The rabbis – and the courts – have another five and a half years to deliberate the matter before the next Shemitta comes around.