17 May SHEMITAH QUESTIONS

This week’s Parsha, Parshas Behar discusses Shemittah & Yovel. 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”.

How should someone deal with visiting Eretz Yisrael this year & Shmittah?

Number one, people have a very big and wrong impression about shmittahh; they think you’re not supposed to eat shmittahh products. On the contrary, shmittahh products have kedusha. The Torah says “L’achla”, you should eat it. Of course, you can only eat it in the halachically permitted manner, but one should not refrain from eating shmittahh produce. So what are the halachos? Anything that grows in Israel that was worked on during the shmittahh year may not be eaten.

So if you have a Jewish owned farm, you can’t eat the fruits and vegetables or anything that grows from that farm. The simplest thing to do is to make it hefker. You could walk in and pick your own fruits and vegetables. The other thing is that in Eretz Yisroel, there is a heter of where the Bais Din markets the fruits and vegetables and not the farmer who owns the farm, this is known as ‘otzar bais din’. That is permitted to be bought under the right conditions. That is a very important halacha. There are two important halachos I need to mention about that rule. One is that because of the kedusha that the produce has, it’s not allowed to be wasted. There are very few people that eat the whole apple or orange.

You eat what you want and throw away the rest. You’re not allowed to throw away these shmittahh produce. That means that during the shmittahh year, you have to eat it up and if you don’t want to eat it up, you have to wait till it’s rotten and then you can dispose of it. I’ll give an example that maybe some of your readers could relate to.

During the shmittah year you buy an orange. Some people eat orange peels. So then the question comes, if people eat orange peels, should you be allowed to throw away the orange peel? That’s why if you go to some yeshivas and seminaries in Israel, you’ll see that they have the orange peels on the window sills waiting for them to get rotten so they can throw them out. Another halacha about the bais din produce is that it may not be taken out of Eretz Yisroel. So as you said, pPeople are going to be coming to Israel and they’re going to want to take fruit back to their family. You can’t take fruit out of Israel that grew during a shmittahh year under most circumstances. That includes dried fruit, olive oil, and wine.

We certify, not many, but a few restaurants and hotels in Israel. We won’t let those establishments use the otzar bais din produce. Not because we don’t believe in it, but because at home, we could control that there’s no leftovers or that the leftovers are dealt with appropriately. At a restaurant, I can’t have a mashgiach going over to every table and telling the guests they have to eat everything on their plate. They obviously can’t take the leftovers back into the kitchen once it was on someone’s plate. So we don’t use that produce in restaurants and hotels. What’s most popular in Israel is what grows on non-Jewish farms so anything that comes from chutz l’aretz, or from a farm that is truly owned by non-Jews. It’s a complicated hashgacha because you need to make sure that no one is fooling you.