The Heter Mechira Debate

Heter mechira is a halachic mechanism whereby agricultural lands in Israel are sold to non-Jews, allowing the lands to be cultivated and vegetables grown during shmita [the sabbatical year]. It was first formulated by a group of renowned rabbis in the year 5649 (1888-1889) due to the difficult circumstances then facing the Jewish farmers. The rabbis permitted the sale of land to non-Jews on a one-time basis, clearly stipulating that the heter mechira must be re-evaluated for each future Sabbatical year.

Since it was first enacted, Heter mechira has sparked many halachic debates among rabbinic scholars and became one of the most controversial issues surrounding the observance of shmita. (see “Worker’s Protest – 5670”). Countless books, articles and responsa have been written regarding heter mechira. This article presents a summary of the main points of contention.

Protest against the heter mechira boycott – 5670 (1910)

Is Shmita d’Oraita or d’Rabanan?

Heter mechira depends heavily on the fact that shmita nowadays is binding only by rabbinic decree (d’rabanan). If it were binding by Torah Law (d’oraita), it would be extremely difficult to accept all of the leniencies on which heter mechira relies. Fortunately, the overwhelming majority of poskim (halachic scholars), including those that oppose the heter, are of the opinion that nowadays, shmita is indeed d’rabbanan. It can be d’oraita, only after the majority of world Jewry actually resides in Israel and the tribes of Israel are settled on their land. 14-07/hanatziv.jpg However, there is a minority opinion held by Rabbi Naftali Tzvi Yehudah Berliner (the “Natziv” – 1816 – 1893) and others, that even today shmita is d’oraita. Consequently, the Natziv was one of the most vehement opponents of heter mechira, rejecting most of the leniencies on which it is based. [1]

National Obligation to Fully Observe Shmita

Those opposing the heter mechira argue that the Jewish people were exiled from the land due to their negligence in observing the laws of shmita. We must therefore make every effort to observe this mitzvah (commandment) in its truest form and certainly not try to circumvent it. The supporters of the heter respond that it is our national duty to care for the well-being of all of Israel, not just for consumers of a certain sector. Enforcing full nation-wide observance of shmita can result in the collapse of Israel’s agricultural sector and would severely damage the livelihood of many farmers.[2] Most Israeli farmers would choose not to accept rabbinic authority. They would continue working their fields in complete disregard for the laws of shmita, flooding the market with forbidden fruits and vegetables. It is heter mechira that is currently keeping shmita from being neglected by the majority of the Jews in Israel.

Does Shmita Apply to Arab-Owned Land in Israel?

Another question the rabbis have to contend with is whether a Jew is permitted to work the land that was sold to a gentile. Jews are commanded to let the land lie fallow during the seventh year. From the Talmud (Gittin 48a) we learn that if a Jew sells land in Israel to a gentile, that land retains its sanctity in respect to shmita and Jews may not work it. This opinion is supported by Rambam (Maimonides), according to the Kesef Mishnah. [3] However, from Rashi’s commentary on another place in the Talmud (Sanhedrin 26a), it seems that a Jew is permitted to work the land of a non-Jew under certain circumstances. The “Sefer Hatruma” (Baruch ben Yitzhak) states explicitly that a Jew may plow and sow in the land of a gentile during the seventh year. That is also the opinion of the Gr”a (Vilna Gaon). Relying on the fact that shmita today is d’rabanan, heter mechira follows the lenient ruling that Jews are allowed to work the land that was sold to a gentile, but it does not permit the types of work that are explicitly forbidden by the Torah: plowing, planting, pruning and harvesting [4]. These tasks must be done by non-Jews.

Uprooting a Mitzvah

In his book “Sefer Hashmita”, Rabbi Yechiel Michel Tukochinsky writes that the “bitter” debates of 1889 centered around the question of whether it is proper for a beit din to permit the uprooting of a Torah mitzvah. 14-07/Tikochinsky-122.jpg In contrast to the selling of chometz on Pesach which actually helps us to fulfill a mitzvah (removing chometz from our possession), the sale of the land under heter mechira abnegates our observance of a mitzvah (letting the land lie fallow). The opponents of the heter felt that if the heter becomes the general practice, the original mitzvah may eventually be “forgotten”. Rabbi Yoel Teitelbaum (Satmar) ruled that selling land in Eretz Yisrael to a gentile violates two separate prohibitions, lo techonem (see below) and the uprooting of a Torah mitzvah. The proponents of heter mechira argue that the heter does not uproot the mitzvah. It is only a temporary ruling, it is not applied to most private gardens and it does not permit biblically prohibited work by Jews. Furthermore, some of the religious farms do not follow the heter mechira and accept upon themselves full observance of the shmita laws. Others exclude a portion of their land from the the sale to a non-Jew so that full shmita can be observed there. Therefore the mitzvah is not being uprooted and will not be “forgotten”. Additionally, it is argued that heter mechira is certainly no worst than the prozbul established by Hillel and widely accepted by all Jewish communities to this day. The Talmud (Gittin 36a) asks how is it possible that Hillel enacted a law that uproots a biblical commandment, and then proceeds to answer that it was at a time when shmita was d’rabanan (see Rashi there). So is the case with heter mechira – when shmita is d’rabanan, the rabbis may invoke a mechanism that overrides the ban of working the land in order to alleviate the difficult conditions facing the agricultural community.

Legality of the sale – Lo Techonem

Halachically, a Jew may not sell land in Eretz Israel to a gentile as is written in the Torah (Devarim 7:2) “Do not make a covenant with them nor let them settle (lo techonem)”[5]. The Talmud (Avodah Zorah 20a) discusses the meaning of the words lo techonem which can be interpreted several ways. One accepted interpretation is “do not allow them to settle the land”, hence the ban on selling land to a non-Jew. 14-07/wolf-lion.jpg Much ink has been spilled over the implications of lo techonem as it applies to heter mechira. The Natziv took the law at face value stating that even if shmita is d’rabanan, selling the land is certainly forbidden by the Torah. Picturesquely he wrote that the farmer who sells his land “escaped from the wolf but was met by the lion”, meaning that he tried to avoid the rabbinic injunction requiring the observance of shmita and instead violated the biblical prohibition of lo techonem. The renowned Rabbi Avraham Yeshaya Karelitz, better known as the “Hazon Ish”, wrote that the very sale of the Land of Israel to a non-Jew is detestable to G-d no matter what the reason for the sale. Representing the opposite side of the dispute, Rabbi Tzvi Pesach Frank rejects the Hazon Ish’s understanding of lo techonem saying that it is not found in the Bible, the Mishnah or the Gemara (Talmud). He prefers the interpretation given by Rabbi Israel Yehoshua Trunk of Kutna, that if the sale of the land of Israel to a non-Jew serves to strengthen the Yishuv(Jewish community in Israel), then it does not fall under the prohibition of lo techonem.

14-07/kook-frank-karlitz.jpg-500.jpg

Rav Frank explains that the prohibition of ‘lo techonem’ is not about selling land to a non-Jew but rather about providing him with a firm hold on the land. It follows that selling land to non-Jews would be permitted if it does not increase their permanency on the land. Under heter mechira , the land is sold for only 2 years, which certainly does not give them a permanent settlement. On the contrary, it strengthens the Jewish settlements.

Validity of the sale

Some rabbis raised an additional objection to heter mechira — the sale of the land, as carried out by the rabbinate, is fictitious and therefore has no validity. The Hazon Ish pointed out three reasons why the sale is not valid.

1) “There is no emissary for an act of transgression”. This principle of Jewish law states that an emissary does not have the power to represent his sender on a mission that violates halacha. Therefore the mission is nullified from the start. According to the Hazon Ish, if the Jewish owner of the land sells it directly to a non-Jew, he is violating the prohibition of lo techonem, but the sale is still binding after-the-fact. However, in the case of heter mechira, the Chief Rabbinate acts as an emissary for the farmers in this illegal sale, so it is nullified from the start and has no effect on the status of the land which continues to remain under Jewish ownership.

2) The sale is not legally recorded in the Land Registry Office (Tabu). The sale of the land under the heter mechira is carried out halachically by signing a contract of sale, but it is not registered in the Land Registry (the Tabu). The sale is therefore not legally binding by law. If the sale is not recognized by the state authorities, then it is not valid halachically either.

3) The sale is fictitious. Both the buyer and the seller know that the sale is not a true one. The seller continues to consider the land as his own property and the buyer knows that he will not be permitted to use the land as he pleases.

The proponents of heter mechira reply to these arguments as follows:

1) “There is no emissary for an act of transgression”. This argument presumes that the sale of the land is prohibited, which is not the case (see lo techonem, above). But even if we were to agree that the sale is prohibited, the rule of “no emissary for an act of transgression” does not necessarily mean that the sale is not binding. Some authorities interpret this rule to mean that an emissary for an act of transgression is responsible for his deeds, as if he were doing it on his own. That is, the emissary who carried out the act is liable for punishment and not his sender. According to this view, the actual sale will always be binding. Furthermore, the Gr”a (Vilna Gaon) ruled that if the emissary does not know that his actions are prohibited, then the mission is not nullified. Certainly, the rabbis that are selling the land on behalf of the farmers are convinced that they are not violating any halacha. Therefore, even according to the opponents of the heter, the sale should be valid.

2) Legality of sale not registered in Tabu. Rabbi Chaim Yehuda Leib Auerbach (father of Rabbi Shlomo Zalman Auerbach) wrote that if all parties agree to a sale by signing a contract, without registering it in the Land Registry, the sale is still halachically binding. As proof, he cites a practice that was common in his days, that when a person borrows money from his friend, “in order to escape the prohibition of interest, he sells his home [to the lender] for a set period of time and the lender eats the fruit thereof.” (The home was actually sold rather than signed over as regular collateral). This sale was not registered in the Tabu and yet it was halachically valid, because otherwise, the fruit eaten by the lender would be considered interest which is forbidden by Torah Law. If you rely on such a sale in order to circumvent a Torah prohibition (interest), certainly you can rely on it to circumvent shmita which is only rabbinic.

Rabbi Chaim Yehuda Leib Auerbach

Rabbi Auerbach continues to explain that the purpose of land registry is for the collection of taxes or to prevent fraud. Both of these reasons do not apply to heter mechira whose sole purpose is to permit the fruit of the sabbatical year. The sale is only for two years, after which it returns to its original owner. For these types of transactions, the government authorities do not require registration. Therefore, the sale is valid. A similar view was expounded by Rabbi Pesach Frank. Even the Hazon Ish himself originally agreed that a land sale done in accordance to halacha before a beit din is binding even if it is not officially registered in the Land Registry. Later, however, he retracted his original ruling and wrote that the sale is not binding. [6] In 1979, the Knesset passed a law giving legal validity to the sale of land for the purpose of shmita , exempting it from any registration requirements, effectively putting an end to the debate on this particular issue. [7]

3) The fictitious nature of the heter mechira. Even if it is true that during the course of the shmita year, the farmer treats the land as his own, his initial intention in selling the land is to avoid violating the shmita laws or, alternatively, to have his crop approved by the rabbinate for the public market. In either case, it is in his interest that the sale be halachically binding and therefore he initially intends the sale to be valid. If the farmer later prevents the buyer from exercising his rights to the land, the sale is still binding. We learn this from the sale of chometz. According to the Mishnah Beruruah (448:12), if a Jew, after selling his chometz to a non-Jew, prevents the buyer from accessing the chametz during Pesach, the sale is still valid even though the Jew did not act properly. If we accept this ruling on the issue of chometz which is d’oraita, we must also accept it when it pertains to the sale of the land for shmita which today is d’rabanan. Be that as it may, prior to the 5768 shmita year, significant changes were made in the implementation of heter mechira and in the wording of the bill of sale in order to increase the awareness of both the buyer and the seller as to the seriousness of the sale. According to Rabbi Ze’ev Weitman, member of the Chief Rabbinate’s shmita committee that year, one can no longer claim that the sale is a mockery or that it is not taken seriously by either of the sides.

Eating heter mechira, b’dieved (after the fact)

What is the status of the fruits and vegetables from heter mechira according to those who oppose the sale of the land? Here, too, the answer is not unequivocal. According to the opinions that the sale is still binding (albeit a violation of halacha), both the fruits and the vegetables are considered yevul nochri (non-Jewish produce) and are permitted. But even if the sale is not binding, the fruits could be permitted according to the authorities that allow “shamur ve’neevad” (fruits that were guarded or worked on during shmita ). In this case, the fruits would be considered to have kedushat sheviit and may not be eaten after their time of biur (when such fruits are no longer available in the fields). Vegetables are more problematic since they fall under the category of sefichin which is forbidden. According to those that do not permit “shamur ve’neevad”, both the fruits and the vegetables from heter mechira are considered non-kosher. [8]

Conclusion:

We have seen that heter mechira solution for shmita has been controversial for over 120 years because of the many halachic intricacies involved in selling land of Eretz Yisrael to a non Jew. Although some changes have been recently introduced into the process to improve its validity, it still remains a mechanism used to circumvent a major Torah mitzvah and even its supporters agree that it is far from an ideal solution.

” Did I not repeatedly state that this rule [heter mechira] is only temporary, and [should be applied] only as needed and when the necessity is great? Far be it from me to uproot a great mitzvah such as the sanctity of shmita without great necessity …, [such that] people would die, G-d forbid, from starvation without work or a means of sustenance, [or] that the foundations of the holy community would fall apart … But at any time that a virtuous beit din will find that the situation has improved, and that it is possible to safely observe shmita literally without any circumvention, G-d forbid that we should … uproot the sanctity of the land …. ” (Rav Kook, Igrot Hare’iyah, part 2, #555 ).

Nonetheless, heter mechira is certainly a legitimate option for both consumer and farmer. As Rabbi S.Z. Auerbach writes in the introduction to his book “Maadanei Aretz”, heter mechira is “founded on the heights of holiness [lit. holy mountains] and it has been accepted and practiced throughout the Holy Land”. One may choose not to rely on heter mechira, but he must be careful not to criticize those that do.

“For those who truly want to be scrupulous (l’hader) in the mitvah of shmita , without relying on weak leniencies, I would suggest, for example, that they deposit their money in an agricultural bank, and at the end of the sabbatical year, they should be scrupulous to perform the mitzvah of “Shmitat Kesafim“ [the rescinding of loans], in its original Torah form and forfeit all his deposits. The urban consumer has no moral right to sign a prozbul [circumventing “Shmitat Kesafim”] while preaching to his brethren in the [rural] settlements that had relied on halachic leniencies [heter mechira] at the time of need … “ (Rabbi Yaakov Ariel, “Ze Dvar Hashmita ”).


Sources and Links:

Most of the sources used for this article are in Hebrew and can be found in the footnotes and the list of sources at the end of the original article (http://kosherpoint.passroads.com/shmita/heter-mechira-controversy-heb/).


[1] Kuntres D’var Shemita by Rabbi Naftali Tzvi Yehudah Berliner (Hebrew)

[2] See: “What shall we eat on the seventh year?” endnote #5.

[3] Rambam (Maimonides) writes: “A gentile that purchased land in Eretz Yisrael and planted in it during the Sabbatical year, its produce is permitted because they [our Sages] decreed that sifichin [are forbidden] only [as a safeguard] against transgressors and gentiles are not commanded to observe shmita.” (Hilchot Shmita and Yovel, 84:29)
The Kesef Misha comments on this that the produce is permitted “because the field belongs to the gentile and also it was not worked on by a Jew.”

[4] The Torah (Vayikra, 25:3-5) explicitely forbids planting, pruning and harvesting. Most authorities include plowing as part of planting. Other types of agricultural work such as watering, fertilizing, weeding, spraying, etc. are forbidden only by rabbinic decree.

[5] The Hebrew word “techonem” is ambiguous. It may be derived from the word “chen” meaning grace or charm. Then lo techonem could be translated as “do not be gracious to them”. Alternatively, techonem may be related to the word chanaya meaning encampment. In that case, lo techonem could mean do not settle them (in the land).

[6] Hazon Ish – Hosen Mishpat, Likutim 16:8 (p. 466)
“מכר ישראל לנכרי שדה בשטר וכסף ולא כתב לו בטאבו, נראה דחשיבא כשדה של נכרי … והלכך מהני [מועיל] מכירת מקומות החמץ אף שלא כתבו בטאבו”.
If a Jew sells a field to a gentile by contract and payment, and did not register it in the Tabu, it would seem that the field is considered the possession of the gentile… and therefore the sale of places containing chometz [to a non-Jew before Pesach] is effective even if it is not registered in the Tabu.

Hazon Ish – Baba Kama, 10:9 (p. 161)
“… הדרנא בי ונראין הדברים דיש לישראל זכות דיניהם ולא קני לה נכרי, ולענין תרומ״ע ושביעית כל שלא נכתב בטאב״ו הרי היא של ישראל כדיניהם.”
… I retract [my original statement] and it [now] seems that Jews are subject to the rights according to their [secular] laws and the gentile did not acquire it, and concerning the matter of terumot and maaserot and the seventh year [=shmita] whatever was not registered in the Tabu belongs to the Jew as [stipulated by] their laws.

[7] See: Knesset bill: Regulations Governing Real Estate Transactions, 5739 (1979) (Hebrew)

[8] Sefer Dinei Sheviit HaShalem, Hamachon Le’mechkar Torani, Chapt 22.

3 thoughts on “The Heter Mechira Debate”

  1. Sure very interesting and clear article.
    Please what is the position of guedolé hador about heter mekhira , ( Rav Ovadia, Rav Elyachiv, ….)
    Toda Rabba, Kol touv.
    Schlomo.

  2. It depends which gedolim.
    In the haredi camp, most are opposed although Rav Ovadiah was very much in favor.
    In the national-religious camp, most consider it a valid option. Rav Modechai Eliyahu agreed it is problematic but considered it better than yevul nochri (from Arabs in Eretz Yisrael). Rav Yaacov Ariel is in favor but considers otzar beit din a better option.
    You should ask you own Rav what opinions to follow.

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