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Heter Mechira

Cheshvan 5782 | October 2021
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One option for buying produce and supporting the Israeli farmers during the Shmita year is through Heter Mechira, a compromise where Jewish owned land is temporarily sold to a non-Jew for the duration of the Shmita year in order to avoid the prohibition of working the fields.

How are these leniencies permitted?

According to Tosafot, Rashba, Ritva, Ran and Tur, the obligation to observe Shmita today is only on a rabbibic level and therefore we have more room for leniencies. Rav Kook and the Chazon Ish followed the view that Shmita today is derabbanan as well.

When did the Heter Mechira come into being?

The Heter Mechira was used in 1888-1889 when the newly founded Jewish agricultural settlements in Eretz Yisrael were suffering. It was arranged by three rabbis connected with the efforts of the Chovevei Zion movement, Rabbi Yehoshua of Kutno, Rabbi Shmuel Mohliver of Bialystok and Rabbi Shmuel Zanvil of Warsaw and confirmed by Rabbi Yitzchak Elchanan Spector. The heter was an emergency measure for that particular Shmita year and stated specifically “lest the whole enterprise of colonization be endangered.” The heter was renewed again in 1896 and 1903.

In 1910, Rav Avraham Yitzchak HaKohen Kook, Chief Rabbi of the pre-State yishuv in Eretz Yisrael reaffirmed Heter Mechira and made some changes to it. Rav Kook stressed that it was not a permanent solution and should only be used in times of absolute necessity. He made the heter more stringent by not allowing Jews to perform the four labors forbidden by Torah law. Rav Kook only allowed Jews to perform labors forbidden by rabbinic law and aurhorized non-Jews to perform labors forbidden by Torah law. Rav Kook dealt with three Shmita cycles and renewed the heter each time. Since then it has been renewed by Chief Rabbis Herzog and Uziel and all of the chief rabbis for every subsequent Shmita year. The cause of building up Eretz Yisrael outweighed any arguments against the heter.

In Rav Kook’s introduction to Shabbat Ha’Aretz he wrote:

There is no basis for questioning this approach as an emergency measure where public loss is involved, even if the advancement of Jewish settlement in Eretz Yisrael were not the issue. How much more so is this valid when the very basis of Jewish existence in Israel is at stake! But no permanent ruling has been laid down, only a temporary one. Whenever it becomes clear to an authoritative Beit Din that there is no alternative, let it implement its decision in the name of Heaven…

The sale of the land to a non-Jew allows work to be done in the fields during the Shmita year and the produce is considered to have been grown on non-Jewish land. The vegetables that are grown of the land which is sold to a non-Jew don’t have the issue of sfichin (produce that grew on its own during the Shmita year without having been purposely planted). There is also no issue of shamur (produce from a field that was guarded) and ne’evad (produce from a field that was worked).

Opinions for and against the heter:

The Ridbaz, Rabbi Yaakov David Wilovsky, rabbi of Tzfat was strongly opposed to the heter. In his commentary to Pe’at HaShulchan (1900) he presented counter arguments promoting the complete observance of Shmita.

The Chazon Ish, Rabbi Avraham Yishaya Karelitz published his decision against the heter in 1938.

Rav Eliezer Melamed, an advocate for the heter explains why the Chazon Ish was so opposed to the heter: The Chazon Ish claimed that due to the prohibition of “lo techonem”, “do not give them a resting place” (Dvarim 7:2), it is forbidden to sell land in Eretz Yisrael to a non-Jew. When farmers appoint rabbis as agents to sell the land, the rabbis become agents of prohibition and their appointment is not valid.

Rav Melamed expounds that the response of the rabbis in favor of the heter is that “lo techonem” is designed to strengthen Israel’s presence in the land. If selling the land for a limited time strengthens Jewish settlement in the land, then there is no prohibition.

Most of the Haredi community still does not follow the heter today and prefers to buy Yevul Nochri, produce grown by the Arab population or produce that is imported from abroad.

Rav Shlomo Aviner, a Religious-Zionist rabbi who is a proponent of the heter explains that it is dangerous for the State of Israel to rely on importing food. We must be independent and ensure that our food supply will not be cut off at any time. He is also concerned about supporting terrorism.

Rabbi Shaul Yisraeli ruled that Heter Mechira is preferable to purchasing produce from non-Jews, especially those who want to expel the Jewish people from its inheritance and who do not recognize the State of Israel.

Rav Kook also had an issue with buying from the vineyards of the gentiles as there is a concern for Orla (forbidden fruit of the first three years) and Kilei HaKerem (prohibited mixtures between the grapevine and other plants).

Does the Heter Mechira produce have Kdushat Shviit (Shmita sanctity)?

According to the Beit Yosef (Responsa Avkat Rochel 24, Kesef Mishneh 4:29), Shmita produce grown on land that belongs to a non-Jew does not have Shmita sanctity as is not subject to the Mitzvot HaTluyot Ba’Aretz (the mitzvot that only apply in the Land of Israel). The common practice follows the view of the Beit Yosef that Shmita produce grown on land that belongs to a non-Jew does not have Shmita sanctity.

The Mabit, Rabbi Moshe ben Yosef Trani, on the other hand taught that produce that was grown on land belonging to a non-Jew in Eretz Yisrael is still considered Shmita produce and does in fact have Shmita sanctity.

The Chazon Ish followed the ruling of the Mabit and taught that the produce of a non-Jewish field has Shmita sanctity:

We maintain as law that one may not work in a field belonging to a non-Jew during the Shmita year…And we treat their produce as having Shmita sanctity, and we tithe it without reciting a bracha.

In B’nei Brak, the Chazon Ish’s city, where they mainly buy produce from the Arab population, this custom is still followed and they treat the produce with sanctity.

Rav Kook wrote in Shabbat HaAretz that the Heter Mechira produce does not have the holiness of Kdushat Shviit as the whole allowance is based on the fact that gentile ownership cancels out the sanctity of Eretz Yisrael. However, in Mishpat Kohen 67, 75, 76, 86, 87 and Igrot Reaya I: 310,312, 318, II: 400 Rav Kook taught that it is proper to treat Heter Mechira produce with Shmita sanctity.

Rabbi Shlomo Zalman Auerbach in Maadanei HaAretz notes 7, 8, 23 teaches:

In my humble opinion, it seems that it is permissible even for those who are stringent to purchase Shmita fruits and those vegetables that are not subject to the prohibition of sefichin from storekeepers who rely on the heter…because even though the other person knows that there are those who forbid the practice, he acts in accordance with those who permit it.

Rabbi Shlomo Zalman Auerbach therefore would permit heter mechira produce but would consider it to have Kdushat Shviit.

If we follow the opinion that the produce has Kdushat Shviit, then it must be treated with respect in the same way that the produce from Otzar Beit Din is treated with respect. Leftovers that are no longer fit for consumption (by humans or animals) may be thrown away with the regular garbage as usual. Leftovers that are fit for consumption may not be thrown away with the regular garbage and must be placed in a Shmita garbage (or wrapped separately in a plastic bag) until it rots. If pits and peels are no longer edible they would go in the regular garbage, if they are edible, they would go in the Shmita garbage. Wine with sanctity may not be wasted and Shmita produce should only be used for its usual purpose.

Each Shmita cycle, the Heter Mechira is reevaluated. As of now, it is still needed as otherwise many Israeli farmers would work the land and violate the prohibitions of Shmita. With the Heter Mechira, the farmers follow guidelines from rabbinical authorities on how they can work their land. The heter allows for a continued supply of fruits and vegetables for those living in Israel and for those abroad who import Israeli produce.

Sharona Margolin Halickman

is a graduate (2019) of the Matan Bellows Educators Institute. She is currently studying in Hilkhata - Matan’s Advanced Halakhic Institute. Sharona is the founder and director of Torat Reva Yerushalayim and teaches at Machon LeMadrichei Chutz La’Aretz.