The Development of the Custom of 'Heter Mechirah' - Rabbi Isser Springer shlita

00:02 Speaker 1 You’re listening to “Lema’an Yishme’u,” a podcast of Machon Halacha Chabad.

00:09 Speaker 2 The subject we’ll study today, with Hashem’s help, is the heter mechirah—the sale of land to a non-Jew for Shemitah. It’s a dispute that has stirred debate for many years, beginning in 5649, nineteen Shemitah cycles ago. The question was: Can the land be sold to a non-Jew? Does the sale work? Is it permissible to sell the land in order to gain certain benefits? With Hashem’s help, we’ll explain the main points of the dispute in this class. To cover every detail would take a year-long course. In the short time we have, we’ll discuss the main points, the Rebbe’s approach to the subject based on several sources we have, and the practical halacha: how to treat produce grown under the heter mechirah. The dispute begins in Tzfas. At that time—5292, exactly seventy Shemitah cycles ago, and 5299, the following Shemitah year—Tzfas was a major Torah center. It wasn’t some remote outpost in need of a minister for the Negev and Galilee. It was a thriving Torah center. After the expulsion from Spain, many of the great Torah scholars came to Tzfas. It’s hard to believe how so many of them crowded into such a small place, the old city of Tzfas. The Ramak, the Alshich, Rabbi Shlomo Alkabetz, Rabbi Yosef Karo, Rabbi Yaakov Berab, the Mabit, the Maharit, and many others lived in Tzfas at that time. One of the major disputes was between Rabbi Yosef Karo and the Mabit. Mabit is an acronym for Moshe ben Yosef Trani—Rabbi Moshe ben Yosef Trani, one of the outstanding Torah authorities of that generation. Rabbi Yosef Karo and the Mabit disagreed over several Shemitah cycles, over a number of years, until 5334, after which they both passed away—Rabbi Yosef Karo first, and then the Mabit. They disagreed about the status of land owned by a non-Jew. The halacha is that a non-Jew’s ownership cannot remove the sanctity of the land. When a non-Jew buys land, that does not permanently remove its sanctity or desecrate it. That is

02:42 Speaker 2 agreed upon. But Rabbi Yosef Karo argued that while the land belongs to a non-Jew, it has in fact lost its sanctity. The statement that a non-Jew’s ownership cannot remove its sanctity means that it cannot remove it permanently. Once the non-Jew relinquishes his hold on the land and it returns to Jewish ownership, the land will be holy. But for now, Rabbi Yosef Karo says, the land does not have that sanctity for certain purposes, and its produce does not have the sanctity of Shemitah. A Jew may work land owned by a non-Jew. And the produce grown there is not holy: there is no need to safeguard its sanctity, it may be eaten in any manner, there is no need to perform biur, and the laws of Shemitah need not be observed with respect to that land, the non-Jew’s land. The Mabit disagreed. He said that land owned by a non-Jew has the status of land in Eretz Yisroel during Shemitah. A Jew may not work it. Produce grown there is Shemitah produce; it has the sanctity of Shemitah and is subject to its laws. Those are the main points of the dispute, which continued for many years. According to the Mabit, since this produce is subject to the laws of Shemitah, even if a Jew completes its processing, there is no need to separate maaser from it. According to Rabbi Yosef Karo, if a Jew completes the processing of produce grown on a non-Jew’s land, he is obligated to separate maaser. The dispute became so intense that Rabbi Yosef Karo and his beis din declared a ban: anyone who followed the Mabit’s opinion and did not separate maaser from this produce would be under the ban. That was the dispute. Over the generations, the prevailing practice largely followed the Beis Yosef’s opinion: the laws of Shemitah are not applied to produce grown on a non-Jew’s land. That is why we eat produce grown by non-Jews; the food chains carry it. We eat it without treating it as Shemitah

04:55 Speaker 2 produce, relying on the words of Rabbi Yosef Karo and those who agreed with him, and on the practice followed over the generations. Although a close reading of the Rishonim and the Gemara seems to support the Mabit’s opinion more, the accepted practice follows Rabbi Yosef Karo. In our generation, after Jewish settlement in Eretz Yisroel was renewed, discussion of the mitzvos dependent on the Land was renewed as well. One of the leading Torah authorities who dealt extensively with this question was the Chazon Ish. He ruled like the Mabit, and many follow the Mabit’s opinion, holding that produce grown on a non-Jew’s land is also subject to the laws of Shemitah. So that is the dispute that took place in Tzfas, and we’ve seen its implications for today. The ruling generally accepted in most of the country follows Rabbi Yosef Karo, while the Chazon Ish follows the Mabit. Some Chabad rabbanim also say that it is proper, ideally, to be stringent like the Mabit, since many leading Torah authorities ruled that way, and since that appears to be the plain meaning of the Gemara and the Rishonim. But certainly, the basic halacha according to our practice follows Rabbi Yosef Karo: produce grown on a non-Jew’s land is not subject to the laws of Shemitah. That concludes the old, historical dispute. Now we come to the renewal of Jewish settlement in Eretz Yisroel some 140 or 150 years ago. Jews began cultivating the land, growing crops and eating its produce. They had not yet reached a point of abundance; conditions were difficult. Then a Shemitah year approached, and the Jews said, “If we don’t work the land this year, we’re done for. The whole enterprise is lost. There’s no way we can leave the land unworked during Shemitah.” They discussed what could be done. Some ruled that it was forbidden, while others ruled that, given the severe hardship during the Shemitah year of 5649, the land could be sold to a non-Jew. There were various details about how to sell it and for how long, but some permitted it and some forbade it. Incidentally, an interesting point: one of the leading authorities who permitted the sale was Rabbi Yitzchak Elchanan Spector of Kovno, one of the great halachic decisors. He wanted to rely on an earlier work dealing with

07:17 Speaker 2 the subject, the responsa Shemen Hamor, by one of the rabbis of Chevron. He didn’t have the book, and it says that he had to obtain it from Berlin. He was in Kovno and needed someone to send him the book from Berlin. I read that episode and think: In our day, you need to send for a book from Berlin? Everyone has Otzar HaChochma and HebrewBooks, and even if someone doesn’t have a book, they can receive a scan by email or WhatsApp in seconds. But back then it wasn’t so simple. The physical book had to be sent from Berlin to Kovno. In any event, some permitted the sale and others forbade it. Let’s briefly discuss the reasons for forbidding it. Some forbade it because they ruled—or were concerned about the opinion—like the Mabit: selling to a non-Jew would not help, because even after the sale, the land would retain the sanctity of Shemitah, and it would not be possible to continue cultivating it. For most of the issues we’re discussing, selling it or not selling it would make no difference. That is the first reason some opposed the sale. But there are two other reasons for opposing it. One is that some said it is forbidden to sell land to a non-Jew. Why? Because the Torah says, “Lo sechonem,” and our Sages derived several prohibitions from those words. One of them is: Do not give them a foothold in the land. Those leading Torah authorities said, “It is forbidden to give a non-Jew a foothold in the land; it is forbidden to sell him land. Yet you are going and selling him land. How can you do that? You are violating a Torah prohibition. You wanted to avoid violating Shemitah, which according to the overwhelming majority of opinions is a rabbinic obligation nowadays. You fled a rabbinic prohibition, and what did you run into? A Torah prohibition—lo sechonem. You fled a bear, only to encounter a lion. We’ve got ourselves into”

09:14 Speaker 2 Much more. That was what some said. The supporters of the sale responded in several ways. Some said that the prohibition of lo sechonem does not apply to non-Jews who do not worship idols. Others said that, in this specific case, the prohibition does not apply. They argued: If we insist on lo sechonem and refuse to give a non-Jew a foothold in the land during Shemitah, and Jews can no longer work their fields, we will lose the Jewish settlement in the Land entirely, and non-Jews will gain much more control. In this case, giving them a foothold in the land—selling them the land for the Shemitah year—is the true fulfillment of lo sechonem. To keep them from gaining a foothold in the land, we have to give them a temporary one. That way, we can continue working the land and continue living and sustaining ourselves in the Land. That was one debate. Another question raised was whether there is genuine intent to complete the sale. Some said that when land is sold but the sale is not entered in the land registry, without official government registration, there is no genuine intent. The person does not really mean it. It shows that the person is not serious, and the principle that the law of the land is binding applies here too: the government says that land is sold through registration in the land registry. Anyone buying a home makes sure it is registered. Without registration, there is nothing to talk about; you do not transfer the money. So what is happening here? How can we sell land without registration? It is not serious. The authorities who permit the sale answered this too. They said that although the law of the land is binding, and a sale of property that is subject to land-registry requirements is registered there, the government does not object to, invalidate, challenge, or treat as ownerless property that has not been registered. It just will not necessarily enforce such a sale. But one can still rely on it. The government does not object to the sale or treat it as void. As for genuine intent, they argued that in this case, because

11:10 Speaker 2 it is very important to us—to the sellers, not to us, to the sellers—that the land be in the non-Jew’s possession during the Shemitah year, they genuinely intend a sale for a limited time. Those, broadly speaking, are the main points. That is the essence of the dispute. Anyone who wants to explore the dispute further can look in Rabbi Zevin’s book LeOr HaHalachah, a"h, and there is also a book by Rabbi Kalman Kahana that discusses it at length. Many other collections and sources discuss these issues as well. What are the arguments on each side? Can the sale be accepted or not? Let us turn to the Rebbe’s view, which is what matters most to us. What did the Rebbe hold? On this subject, we find several comments that show us that the situation changed. It did not begin and end the same way; there were changes over time. In volume 15 of Igros Kodesh, we find two letters to the two people we mentioned earlier: one to Rabbi Zevin and one to Rabbi Kalman Kahana. In his book, Rabbi Zevin describes the debate, but from the perspective of someone who supports the leniency, who agrees that the land may be sold to a non-Jew and holds that the sale is effective and appropriate. The Rebbe writes to him: “It is a pity that in your book you did not present the views of those who question and oppose the sale more clearly and in greater detail.” More space should be given to their position. The Rebbe refers him to Rabbi Kalman Kahana’s book, where the view of those who are stringent and prohibit the sale is set out in detail. But a few letters later, there is a letter to Rabbi Kalman Kahana. The Rebbe writes that it is important to establish a sound basis for the sale, at least regarding certain details, because people do rely on it, and those people must make sure it is better grounded. And the Rebbe also spoke with Rabbi Dushinsky, the second chief rabbi of the Eidah Hachareidis—there were two chief rabbis named Rabbi Dushinsky, and this was the later one—when he was younger, about the need to strengthen the basis for the sale and encourage it. On the other hand, the Rebbe told Kfar Chabad

13:29 Speaker 2 not to rely on leniencies and to observe Shemitah properly. So, in that period, in the early years of the Rebbe’s leadership, we see that the Rebbe considered there to be room for the heter mechirah, the sale permit. It had a basis, but it was preferable not to rely on it. On the one hand, it was appropriate to strengthen its basis for those who did rely on it. On the other hand, someone who is meticulous in mitzvos, a chossid who goes beyond the letter of the law, should not rely on the heter mechirah. And that is our practice: not to rely on it. In a letter the Rebbe wrote later, about fifteen years after the earlier letters, the Rebbe says that the reality had changed completely and that the heter mechirah must be viewed differently. The letter was written to Rabbi Shlomo Goren, who was the Chief Rabbi of Israel. Before that, he held other positions, including Chief Rabbi of the IDF; he himself took part in wars. We will not go into that, or into the various stories about his time as Chief Rabbi of Israel, because that is not our subject now. Rabbi Goren discussed the heter mechirah in his book, and the Rebbe writes to him: “I have…” The letter is dated Gimmel Tammuz 5732. This year, with Hashem’s help, it will be fifty years since the letter. On Gimmel Tammuz 5732, the Rebbe writes to Rabbi Goren—it is published in Igros Kodesh and elsewhere—“I have a question about the heter mechirah for which I have not found an answer: now it is even worse than a legal fiction.” It is not even a device; it is far too transparent a device. Why? Because of the security situation, selling land to an Arab is unthinkable. Unthinkable. There is no such thing as selling the land. The government would not agree to sell the lands—all the lands of Israel, or even some of them—to people who pose a danger to our security. So the Rebbe says that it is even worse than a legal fiction. This is a question he had not seen anyone raise, and the implication is

15:31 Speaker 2 that, according to these words of the Rebbe, the heter mechirah became more problematic over the years as circumstances changed. From the outset, there was a problem with genuine intent in the sale of the land. But over time, as the security situation deteriorated, it became still more problematic, leaving almost no room for the heter mechirah. What do we do in practice with produce covered by the heter mechirah? We will now address two questions: first, buying the fruit; second, eating it. Those are two separate questions concerning fruit. With vegetables, there is a greater problem: the prohibition of sefichin. There is a fundamental distinction between fruit and vegetables. Anyone who wants to eat fruit that has the sanctity of the seventh year may do so. Some even say it is a mitzvah to eat such fruit. One must, however, observe the rules governing its sanctity, which we will not go into now. I assume there is a class on the website about how to eat fruit with the sanctity of the seventh year. But vegetables are subject to the law of sefichin. Our Sages, of blessed memory, said that annual plants—plants sown and grown in the same year, which must be grown anew each year—may not be eaten during the Shemitah year. Even if the seeds fell into the ground on their own, it is still forbidden to eat the plants, even if no Shemitah prohibition was violated. The concern is that someone might otherwise violate the Shemitah prohibitions and claim that the seeds had fallen on their own and that he had done nothing forbidden. So with vegetables grown under the heter mechirah, since we do not accept the sale, as the Rebbe said, we regard the land that was sold as Jewish-owned land. We certainly cannot eat vegetables grown on that land. They are forbidden under the prohibition of sefichin, the prohibition enacted by the Sages against eating vegetables—against eating annual plants. The two questions we will discuss concern fruit: Can we buy this fruit, and can we eat the fruit

17:40 Speaker 2 …these if I haven’t bought them? As for buying the fruit, the plain implication of the Chabad rabbis’ rulings seems to be that one should not buy it. Trading in Shemitah produce is forbidden, and since the Rebbe does not accept the heter mechirah, it follows that this fruit has the full status of Shemitah produce. If so, it is forbidden to buy it. When someone does buy it, the money he gives the seller acquires the sanctity of Shemitah, and that creates problems. So we will not buy fruit grown under the heter mechirah. The question is whether it may be eaten. Suppose someone brings me fruit—a neighbor brings me fruit from his orchard. I’ve checked and I know it is not orlah fruit. That is something that needs to be checked; you cannot rely on what people say, and there are many questions involved. But if I know it is not orlah, may I eat fruit grown under the heter mechirah? The answer involves a dispute among the Rishonim and a dispute among contemporary Torah authorities about what the custom has been. It relates to two issues: shamur and ne’evad. What are shamur and ne’evad? During Shemitah, one is required to relinquish ownership of the fruit—to make it available for anyone who wants to eat it to take. The fruit must be ownerless. Someone who violates this law and does not relinquish ownership of the fruit is called shamur: he kept the fruit for himself instead of relinquishing it and allowing anyone to take it. That is one issue. There is another issue, ne’evad. During Shemitah, working the land is forbidden. There is an explicit verse in the Torah: “The aftergrowth of your harvest you shall not reap, and the grapes of your unpruned vine you shall not gather; it shall be a year of complete rest for the land.” Someone who violates this and works his field or his trees is

19:42 Speaker 2 called ne’evad. That person has committed a transgression. And because we do not regard the heter mechirah as a valid leniency—it has serious difficulties—we are, in effect, saying that the Jew worked his fruit trees during Shemitah and kept his fruit for himself instead of properly relinquishing ownership of it. What is the law regarding fruit for which the laws of Shemitah were not observed—fruit that is shamur or ne’evad? The dispute goes back to the time of the Rishonim, and the principal halachic ruling permits it. The basic halachah is lenient. But contemporary leading Torah authorities disagree about what the custom has been through the generations. In the responsa Kneh Bosem, Rabbi Brandsdorfer, one of the rabbis of the Eidah Hachareidis beis din, writes that the custom through the generations was to be stringent regarding shamur and ne’evad and not to eat such fruit. Accordingly, since we take a stringent approach to the heter mechirah, we would not eat fruit grown under it—not only would we not buy it, we would not eat it either. But Rabbi Shlomo Zalman Auerbach, also one of the leading Torah authorities of our time, writes that the custom through the generations was to eat fruit that was shamur or ne’evad; people were not stringent. So we do not know what the custom has been through the generations. Therefore, according to the basic halachah, one may be lenient and eat this fruit. But a chossid goes beyond the letter of the law and is stringent not to eat it, treating it as shamur and ne’evad in accordance with the stringent view among the Rishonim and with what is written in Kneh Bosem—that the custom through the generations was to be stringent about this. That, in brief, is the background to the heter mechirah, the Rebbe’s position on it, and the practical halachah. Let’s summarize briefly. We began with the dispute between the Beis Yosef, Rabbi Yosef Karo, and the Mabit: do the laws of Shemitah apply to land owned by a non-Jew? According to the view that they do not apply to such land, it may be possible to sell it. We saw that there is a problem of lo sechaneim, a problem with a sale that is not recorded in the land registry, and further discussion on the matter. In the Rebbe’s words, we saw at first that there was room for the heter mechirah. But as time went on, it appears from the Rebbe’s words that the heter mechirah became less compelling and less acceptable. In practice, what should we do? We discussed shamur and ne’evad: according to the basic halachah, there is room to be lenient, but ideally one should be stringent and not eat this fruit.

21:53 Speaker 2 Beyond that, one certainly should not buy it, and one certainly should not eat the vegetables either. May we have a good and sweet Shemitah, and with Hashem’s help, may we merit the revelation of Moshiach immediately, and fulfill all the mitzvos, including the mitzvah of Shemitah, as You desire them to be fulfilled, in the Beis Hamikdash, with the complete revelation, immediately.