(2007/5767)

Last week, we began discussing the controversial Heter Mechirah, the practice of the Israeli Chief Rabbinate to sell farmland to a Nochri to avoid Shemittah restrictions.  We reviewed the dispute regarding whether the sale itself is permitted in light of the Torah prohibition to sell Israeli real estate to a Nochri.  This week, we shall review the dispute about whether the sale is Halachically effective.  We shall proceed to review the debate surrounding whether the sale can affect the laws of Shemittah.  We will conclude with a discussion of how the consumer should deal with products whose Kashrut status hinges on the validity of the Heter Mechirah.

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 Mechirah 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 Mechirah, 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 Mechirah argue that if the sellers clarify that the sale will be valid despite the fact that it is not registered with the Israeli land registry, 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 Mechirah

Even if the sale is permitted and valid, the Heter Mechirah still might not have impact on the holiness of Eretz Yisrael.  The opponents to the Heter Mechirah point out that the Halacha (Rambam Hilchot Terumot 1:10) follows the opinion (see Gittin 47) that Nochri ownership of land in Eretz Yisrael does not affect the sanctity of the Land (Ein Kinyan LeNochri BeEretz Yisrael).  Thus, even if the Nochri owns the land, all the laws of Shemittah should nevertheless apply.

The First Defense

The proponents of the Heter Mechirah present two responses to this formidable challenge.  First, they cite opinions that since the holiness of Eretz Yisrael in our times is merely rabbinic in nature (Shulchan Aruch Yoreh Deah 331:2), we may follow the opinion that believes that Nochri ownership of Israeli land does remove the holiness of the Land (Yeish Kinyan LeNochri BeEretz Yisrael).  According to this opinion, Nochri ownership of land in Israel removes the Shemittah restrictions from that land.  This approach is suggested by the Sefer HaTerumah (Hilchot Eretz Yisrael) and is accepted as normative by the Vilna Gaon (Beiur HaGra Y.D. 331:6).

This argument is based on the statement of the Gemara (Gittin 47a) that all authorities agree that that Yeish Kinyan LeNochri BeEretz Yisrael applies to Syrian land.  Rashi (s.v. BeSuryah) explains that the reason for this is because the obligation to observe the laws contingent upon Eretz Yisrael in Syria is only rabbinic.  The Sefer HaTerumah and 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 rabbinic.

Criticism of the First Defense

The Chazon Ish (Sheviit 20:7) notes that the Rambam clearly disputes the opinions of the Sefer HaTerumah and Vilna Gaon.  The Rambam is the primary authority who holds that Kedushat Eretz Yisrael today is rabbinic, yet he never mentions that today the Halacha follows the view that Yeish Kinyan LeNochri BeEretz Yisrael.  Indeed, the Rambam in a responsum (Freiman edition number 132) explicitly states that even today the Halacha follows the opinion that Ein Kinyan LeNochri BeEretz Yisrael.

The Chazon Ish proceeds to point out that the accepted practice in Israel since the time of Rav Yosef Karo (sixteenth century) has been to separate Terumot and Maaserot with a Berachah (during non-Shemittah years) from wine produced from grapes that were grown on Israeli land owned by Nochrim. This demonstrates that the accepted practice is to follow the opinion of the Rambam that even today the opinion that Ein Kinyan LeNochri BeEretz Yisrael is normative, because according to the Sefer HaTerumah and Vilna Gaon, there would be no need to tithe produce grown in land owned by a Nochri.

The Second Defense

The second defense of the proponents of the Heter Mechirah is the opinion of Rav Yosef Karo that even according to the opinion that Ein Kinyan LeNochri BeEretz Yisrael, during the time that a Nochri 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 Mishnah to Rambam Hilchot Terumot 1:10) extracts this point from the following passage in the Rambam (Hilchot Terumot 1:10):

Rav Yosef Karo infers from the Rambam that one is obligated to separate tithes from the produce of the land only after the Jew repurchased the land from the Nochri.  However, while the Nochri actually owns the land, the laws that apply to Eretz Yisrael are not operative.  Thus, Rav Yosef Karo rules that the laws of Shemittah do not apply to land that is owned by Nochrim.  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 Nochrim.  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 Nochri owned land as regular produce not endowed with Kedushat Peirot Sheviit.

This ruling of Rav Yosef Karo is the primary basis for the advocates of the Heter Mechirah.  They argue that Rav Karo's ruling and the custom to follow it demonstrate that if one transfers ownership of Israeli land to a Nochri, the Shemittah 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, pointing out that the Rambam (Hilchot Shemittah VeYovel 4:29) writes that the Gezeirat Sephichim does not apply to Israeli land owned by Nochrim.  The Rambam explains that the reason for this is that the Gezeirat Sephichim was instituted to discourage Jews from violating Shemittah and thus is not relevant to produce grown in a field owned by a Nochri.  The critics of Rav Karo's ruling argue that if the laws of Shemittah do not apply to produce grown in a field owned by a Nochri, why did the Rambam find it necessary to offer a rationale why the Gezeirat Sephichim does not apply to a field owned by a Nochri?  The Rambam could have stated that the Shemittah laws simply do not apply to land owned by a Nochri.

Moreover, the Chazon Ish (Sheviit 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 Shemittah VeYovel 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 Shemittah VeYovel 4:29 was flawed and would have reversed his decision.

Conclusion

We have seen that the Heter Mechirah is a highly debatable leniency.  Both sides of the debate present reasonable and convincing 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 Mechirah.  Rav Soloveitchik argued that the Heter Mechirah is a highly questionable leniency upon which one may contemplate relying only in case of very great need.  Since such a pressing need does not (Baruch Hashem) present itself in this country, there is no room for us to rely on the Heter Mechirah.  The policy of the OU, Chof-K, OK, and Star-K is not to rely on the Heter Mechirah.

According to Rav Soloveitchik, one should not eat Israeli vegetables that were harvested during the Shemittah year or food containing grain that reached a third of its growth during the Shemittah year (see Rosh HaShanah 13b) because of the Gezeirat Sephichim.  A notable exception might be produce that comes from areas in Eretz Yisrael that were not sanctified by the Kedushah Sheniyah (those who returned with Ezra to build Bayit Sheini).

However, according to many authorities, one may eat Israeli fruit that blossomed during the Shemittah year, even if farmers who rely on the Heter Mechirah grew the fruit.  The fruit, though, must be treated with Kedushat Peirot Sheviit.  These authorities include Rav Moshe Feinstein (Teshuvot Igrot Moshe O.C. 1:186), the Chazon Ish (Sheviit 10:6), and Rav Shlomo Zalman Auerbach (Teshuvot Minchat Shlomo 1:44).  One should consult with his Rav about the issues raised in this and last week’s essays.