Heter Mechira is only bedievad

 http://www.eretzhemdah.org/content.asp?lang=en&pageid=299

4.         Shmittah Today in the State of Israel: Heter Mechirah

As we have already written in the past, the majority of the inhabitants of Eretz Yisrael in contemporary times (starting from 120 years ago) rely on the heter mechirah as a bedievad solution as long as there is no other choice, halachically and practically-speaking.

We will now explain what the disadvantages of this solution are and discuss some recent suggestions regarding how to overcome some of these hurdles. We will also explain why, with great pain and a prayer to HaKadosh Baruch Hu, to restore the crown of Shmittah to its former glory, we are compelled to recommend to the public to purchase this agricultural produce. Later, with Hashem’s Help, we will explain why one should refrain from buying non-Jewish produce and instead support farmers who receive guidelines from rabbinical authorities on how to work their fields.

The difficult plight of the Jewish farmers in Eretz Yisrael at the time of the renewal of agricultural settlement in contemporary times became more severe when they were compelled to contend with the question of observing the mitzvah of Shmittah. Gedolei Yisrael tried to find a remedy to their distress. The possibility then arose to sell their land to non-Jews in order to avoid the prohibition of working the fields during the Shmittah year. This suggestion spurred a fundamental halachic controversy that split the rabbis into two groups. Even the Netziv, a great supporter of Zionism, was opposed to it. In the end, Torah leaders like Rav Yisrael Elchanan Spector from Kovno, Rav Yehoshua from Kutna, Rav Avraham Kook (and in his footsteps, all the chief rabbis), the chief rabbi of Yerushalayim, Rav Tzvi Pesach Frank, and Rav Shlomo Zalman Auerbach (with a demand for improvements which have already been implemented in the last few years) supported this approach.

The Heter Mechira is based on the following halachic principles:

·         Since Shmittah in our age is rabbinic according to the vast majority of halachic authorities, “A non-Jew’s acquisition can free the land from its obligation in the mitzvah of Shvi’it.” (cf. Talmud Gittin 47a, introduction to Rav Kook’s Shevet HaAretz, perek 11; Rav Shaul Yisraeli’s Chavat Binyamin, volume 3, siman 101, in his correspondence with Rav Shlomo Zalman Auerbach).

·         Eretz Yisrael’s sanctity and the obligation to settle the land are not dependent on the question of whether there exists an obligation to fulfill the agricultural mitzvot (introduction to Shevet HaAretz, perek 15).

·         No prohibition of Lo T’chanein exists (the Torah prohibition of strengthening the non-Jew’s holdings in Eretz Yisrael) in a temporary sale, whose purpose is the strengthening of the Jewish settling of Eretz Yisrael.

·         No prohibition of sefichin and the law of shamor ve’ne’evad exists by agricultural produce that was grown according to halachic dispensation (in accordance with Mahari Korkus, and even according to the Chazon Ish, Shvi’it, siman 10, sif katan 6, when the sale was done in the proper manner).

·         The four forms of work that are forbidden by the Torah shall not be executed, even with the heter, in a forbidden manner.

In the last few years, many halachic improvements were made in this matter. We will mention a few of them:

·         The Knesset has legislated a special law exempting land sold for purposes of Shmittah from the obligation to register in the Israeli Land Registry.

·         The sale is not done by means of an authorization and appointment of an emissary (this avoids  a substantial amount of the Chazon Ish’s claims against the heter).

·         The sale contract has undergone many improvements, including the avoidence of the possibility that a “Saudi prince” could pay for the land parcels and never return them.

·         Those who have been appointed by the Chief Rabbinate on this topic, Rav Avraham Yosef and Rav Zeev Whitman, have extensively researched the question of ownership of each seller, and sat with landowners who understood well the sale’s implications. Thus the claim of insufficient intent “gemirut da’at,” has fallen to the wayside.

 

An additional advantage to this method is that it does not damage Jewish settlement of Eretz Yisrael. It allows for the continued supply of fruits and vegetables, including exported goods, throughout the entire year, at reasonable prices. This method is the only solution that takes into consideration the needs of the public and not just the individual’s desire to try to fastidiously keep the laws of Shmittah.

In spite of all this, allow us to again mention that this heter is bedievad. It is necessary to test each Shmittah year the need for its implementation. By using this heter, one is partially nullifying the laws of Shmittah. The land subsequently does not lie fallow, man does not cease his work, nor is there any social benefit from the Shmittah year that is observed in such a manner.

Therefore, let us repeat our previous statements that we must continue to pray that we will soon merit the observance of Shmittah from the Torah, with hidur and happiness. Amen!