24 Aug KASHRUS QUESTIONS OF THE WEEK: SHEMITAH QUESTIONS
This Rosh Hashanah (5782) will be the beginning of a new Shemitah year. The Torah forbids many agricultural activities in Eretz Yisroel during Shemitah, such as planting, pruning and harvesting. Chazal added many other restrictions. After the destruction of the Bais Hamikdash, is the mitzvah of Shemitah still a Torah commandment, or is Shmitah now a mitzvah derabbanan (Rabbinic)?
The position of the Tur (YD 331) as well as the Rambam according the Chazon Ish (Shevi’is 3:8) is that Shemitah is currently a mitzvah derabbanan. This follows the opinion of Rebbi cited in the Gemara (Gittin 36a-b). According to Rebbi, the mitzvah of Shemitah is linked to the mitzvah of Yovel which was observed every 50 years. During the Yovel year, the land rested, slaves were freed and land that was sold was returned to its original owner. During the second Beis Hamikdash period, Yovel was not observed, since the Biblical mitzvah of Yovel is only in effect when the land of Israel is divided among the twelve Shevatim, with each tribe living on its ancestral land. Most of the tribes did not return to Israel after the destruction of the first temple, and therefore Yovel was no longer a Torah mitzvah. According to Rebbi, since Yovel is not observed, Shemitah is derabannan. However, the Ramban (Sefer Hazechus – Gittin 18a) and the Rambam according to the Kessef Mishnah, (Hilchos Shmita Viyovel 4:25) are of the opinion that the Halacha does not follow Rebbi, and the Torah obligations of Shemitah remain in effect even today. The Chazon Ish (Shevi’is 3:8) writes that Shemitah today is derabbanan, as per his understanding of the Rambam. Rav Chaim Kanievsky (Derech Emunah, Shmita Viyovel, 9:10) concurs with the Chazon Ish, and this is the generally accepted opinion. In truth, in most situations, this disagreement is academic. We must keep all mitzvos whether they are from the Torah or derabbanan. However, in certain cases of doubt, we are more lenient because we follow the ruling that Shemitah today is derabbanan.
Why is it that today we count the years of Shemitah (7-year cycle), but we do not count the years toward Yovel (50-year cycle)?
In a previous Halacha Yomis, we discussed a disagreement between the Rambam and the Ramban as to whether the mitzvah of Shemitah today remains a mitzvah from the Torah, or whether it is a mitzvah derabbanan. However, all agree that the mitzvah of Yovel no longer applies. According to the Torah, the mitzvah of Yovel is only in effect when the land of Israel is divided among the twelve Shevatim. The disagreement between the Rambam and Ramban is only whether we compare Shemitah to Yovel. Tosfos (Gittin 36b s.v. V’tikun) ask why it is that Chazal instituted a Rabbinic Shemitah so the mitzvah should not be forgotten, but not a Rabbinic Yovel. Tosfos answer that it would be too difficult for most people to observe two consecutive years of leaving their fields fallow, and there is a concept that Chazal will not enact a law that most people will find too difficult to observe. The Rambam (Hilchos Shemitah 10:5) writes that since the laws of Yovel are not observed, we do not count the years of Yovel either. Rav Chaim Soloveitchik (Chidushei Reb Chaim – Shemita 10:5) explains that counting the years of Yovel can only be done by the Sanhedrin (the Jewish court that convened in the Beis Hamikdash). Once the Beis Hamikdash was destroyed, it was no longer possible to even count the years of Yovel. Therefore, today we only count the seven-year cycle of Shemitah, and we do not count the fifty-year cycle of Yovel.
Is there a mitzva to purchase a piece of land in Eretz Yisroel before the Shemitah year, so as to fulfill the mitzva of letting it lay fallow?
Many Rabbonim recommend purchasing a plot of land in Israel and leaving it fallow on the 7th year to fulfill the mitzvah of Shemitah, and there are organizations that make such purchases available. (It is praiseworthy to create mitzvah opportunities, even if one is currently exempt.). Nonetheless, Rav Moshe Sternbuch (Teshuvos V’Hanhagos 5:305) points out that whether one fulfills a mitzvah by purchasing land and not working it depends on whether the mitzvah of Shmitah is a positive obligation or a negative restriction. The wording of Rambam (Hil. Shemitah 1:1) appears to indicate that Shemitah is a restriction and not a positive obligation. Although the Torah expresses Shemitah as an “asai” (a positive commandment), it may be an “issur asei” (a prohibition stated in the positive form). If this is the case, a mitzvah is not fulfilled when not tilling the land, and there is no point in buying property in Israel for the Shemitah year. However, he concludes that in any event, it is incumbent upon us to support the farmers so that they can properly fulfill the mitzvah, and by doing so, we will share in the merit of the mitzvah even if it is an “issur asei”.
The Shemitah year will begin on Rosh Hashanah. Do I need to make sure to write a Pruzbul before Rosh Hashanah?
Aside from the agricultural laws of Shemitah, the Torah also commands us not to collect loans after Shemitah, as it is stated in (Devarim 15:1-2): “At the end of seven years you shall observe Shemitah…every creditor should release his authority over what he lent his friend.” The great Jewish leader Hillel saw that as the Shemitah approached, individuals were wary to lend money to the poor out of fear that their loans would become uncollectible. He instituted the pruzbul as a permissible means of collecting these loans. A “pruzbul” is a signed contract that empowers beis din (a Jewish court) to collect all outstanding loans on behalf of the lender. (Shemitah only impacts individuals and not Rabbinic courts.) To be effective, the pruzbul must be written before the loans are canceled. There is a disagreement among the Rishonim when the pruzbul must be written. Most Rishonim understand that the loan is cancelled at the end of the Shemitah year, and pruzbul can be executed any time before that. However, the Rosh (Gittin 4:18) writes that although the loan is not fully canceled until the end of Shemitah, the lender may not ask for his loan to be repaid once the Shemitah year begins. According to Rosh, the pruzbul for this cycle must be written before the beginning of Rosh Hashana 2021. Most Poskim do not follow the ruling of the Rosh and allow a pruzbul to be written until the end of the Shemitah year, which for this year will be until Rosh Hashana 2022. This is the ruling of Shulchan Aruch (CM 67:30-31) as well. There are some who wish to be machmir and will execute a pruzbul before this Rosh Hashanah (2021) in deference of the position of the Rosh, and will then execute a second pruzbal for loans made during the shemitah year, in accordance with the ruling of the Shulchan Aruch.