Otzar Beit Din – Pros and Cons

Note: For a more complete list of sources, see the original Hebrew article.

Shmita Fruit is Hefker

By Torah law, all crops which grow in the Land of Israel during the shmita year must be rendered hefker [=ownerless]. Consequently, in theory, anyone is permitted to enter the fields and take from the produce whatever he needs for himself and his family (limited to an amount sufficient for three meals per person)[1]. This may be a good arrangement for those who live near a field or orchard, but what about the majority of the population that lives in the cities? How will they provide a constant supply of produce for their families during the shmita year? Remember, shmita produce is sanctified with kedushat shevi’it and may not be harvested in commercial amounts or sold in the market.

The otzar beit din [the Rabbinic court’s storehouse] was established to address this problem .
Within the framework of otzar beit din, farmers render their crops hefker by handing over the care of their fields to the beit din. The court appoints workers to collect the produce and to distribute them fairly to the public.

Origins of Otzar Beit Din

14-08/tosefta-200.jpg The idea of setting up an otzar beit din for the distribution of produce during the seventh year is not a new one. The Tosefta (Sheviit, 8:1-4) – compiled about 1800 years ago – records that at first, agents of the beit din would stand at the entrances to the cities to monitor the produce that was being brought in from the fields. Each person bringing in produce was allowed to retain enough fruits for three meals and the surplus was placed in the storehouses for distribution among the other residents of the city. Eventually, the Beit Din began hiring workers to harvest, collect and process the crops before placing them in the storehouse. The fruits were distributed to the residents every Sabbath eve according to the needs of each household. Produce stored by the otzar beit din could be distributed even after the time of biyur [2].

From this Tosefta we learn the following halachic principles:
a) Individuals are not permitted to hoard shmita produce. One may collect fruit in small amounts sufficient for up to 3 meals per person.
b) A beit din, acting on behalf of the public, is permitted to harvest the entire crop and store them for distribution among the populace.
c) The beit din may pay workers to go out in the fields to harvest and collect the produce.
d) The obligation of biyur does not apply to shmita produce that has been placed in the otzar beit din.

These principles form the basis for the modern otzar beit din.

Sign outside of an orchard supervised by the otzar beit din. Photo courtesy of HaMachon L’Mitzvot HaTluyot Ba’aretz

The Modern Concept of Otzar Beit Din

In Israel today, there are several groups that operate an otzar beit din, each in accordance to the guidelines set by their rabbis. While the Tosefta serves as the basis for all of them, some of the rules learned from the Tosefta have been expanded or interpreted to meet current norms. Differing halachic opinions concerning these expansions govern the way each otzar beit din is implemented.

The modern day otzar beit din typically differs from the Tosefta’s description in the following ways:

• The Beit Din hires the farmers themselves to do the work on their own farms, rather than hiring outside help as presumably was done at the time of the Tosefta.
• The farmers (as emissaries of the beit din) harvest the crop as they do every year – in large quantities and using the usual tools and equipment.
• The produce is “sold” in stores supervised by the otzar beit din rather than being distributed directly to the consumers.
• The produce is not distributed for free [3] – the consumer pays to cover the expenses for growing, harvesting, packaging and marketing the produce – but not for the fruit itself.
• The price that the consumer pays is proportional to the amount of produce he takes. Therefore, in some otzar beit din stores, the produce is weighed and measured as usual. Sometimes, the amount is only estimated to emphasize that this is not a regular sale.
• Under certain conditions, the farmers are allowed to carry out work (i.e. watering, spraying, etc) aimed at producing market-quality fruit. (Usually during shmita, work is permitted only if it is aimed at maintaining – not improving – the trees or plants.)
• The otzar beit din prevents individuals from entering the orchard to freely pick fruit. Sometimes individuals are allowed to pick the fruits but they must pay their share of the maintenance cost.
• The otzar beit din distributes not only fruit, but also vegetables planted on the sixth year and harvested on the seventh. (These vegetable are also sanctified with kedushat sheviit).

Objections Raised

While most contemporary authorities do accept the idea of an otzar beit din as a partial solution for shmita, some objections have been raised.

Omitted by Rambam

The Mishnah and Talmud do not mention the concept of an otzar beit din with emissaries that collect and distribute the fruit during shmita. Neither does it appear in Maimonides’ (Rambam’s) Mishnah Torah, the foremost early halachic authority on shmita. The Radbaz explains that the reason for the omission is that “it is not halacha”.[4] Some modern authorities took this to mean that it is not acceptable halacha and consequently expressed reservations over the very idea of implementing an otzar beit din.[5]

Others interpreted this to mean that the description of the otzar beit din in the Tosefta is not of a halachic nature but rather a technical description of how the laws of shmita were put into practice. As such, Maimonides saw no need to include it in the Mishneh Torah, which is primarily a book laws. Therefore, otzar beit din is not only acceptable, it is preferable because it is rooted in an early tradition.

Selling Shmita Produce in Stores

Among the poskim supporting otzar beit din in principle, there are disagreements as to how it should be implemented.

Rabbi Nissim Karelitz felt that the produce should be distributed directly to the consumers and not ‘sold’ in stores. Rabbi Yosef Shalom Elyashiv permitted selling the produce in stores under certain conditions.

Growing Vegetables

Certain types of agricultural work (watering, spraying, etc.) may be done during shmita for the purpose of maintaining – not improving – the trees and plants. Rabbi Avraham Yitzhak Kook ruled that ‘maintaining’ a tree did not include its fruits. Accordingly, only the minimal work needed for keeping the trees alive is permitted even if that means that the fruit will not be marketable. By the same principle, no work could be done for growing vegetables during shmita, even if the plants began to grow before the seventh year.
The Chazon Ish, however, interpreted the halacha to mean that “maintaining” a tree includes its ability to bear fruit. Therefore, he allowed certain work to be done to enable the trees to bear decent fruits and for plants to produce vegetables. Rabbi Shaul Israeli also supported this interpretation.

Hiring the Farmers to Work on Their Own Farms.

Some authorities question the practice of hiring the farmers themselves to work on their own farm since they may be tempted to violate some of the shmita restrictions to produce a better crop.
Others argue that hiring the farmers is not only more efficient but it also provides them with an income so that they don’t have to rely on charity.

High Prices

Perhaps the most common objection to otzar beit din is that occasionally the price of the produce is higher than similar produce in the general market. The consumers should be paying only for the expenses entailed in growing and marketing the fruit – not for the fruit itself – so the price should always be significantly lower than the average market price. The higher prices seem to be a violation of the ban on selling the fruit.
On the other hand, it is argued that otzar beit din produce incurs higher costs because of the special handling required. Also, the general market sometimes lowers prices based on the quality of the fruit, supply and demand or other economic factors. Otzar beit din prices are based only on actual expenses, regardless of demand or quality, and cannot be lowered.
In certain products (such as wine), the cost of the fruit is negligible compared to the overall production cost, so that we really cannot expect any significant difference in price between the shmita and non-shmita products.

Public access to orchards

Some authorities (Rabbi Shlomo Zalman Auerbach, Chazon Ish) hold that the otzar beit din may not restrict public access to the fields and orchards. Since the fruit is hefker, anyone may go and pick some for their private use.
Others (Rabbi Joseph Lieberman) rule that the otzar beit din may restrict individuals from accessing the orchards, because they are doing so as representatives of the public and in the public interest.

Shmita l’Mehadrin

It is difficult to talk about a “mehadrin” solution for shmita today, for there is no ideal solution.
Otzar beit din has its disadvantages. Due to the ban on sefichin, it cannot provide vegetables for the entire year and it is unsuitable for farmers that grow mainly vegetables. Otzar beit din produce may not be exported due to kedushat sheviit. Halting all agricultural exports for even a single year will inevitably result in losing a portion of the competitive world market for several years and will be a blow to the Israeli agricultural industries. Kedushat shevi’it is also problematic in that the general public is not aware of all the laws related to its special treatment.

Nevertheless, in spite of its disadvantages and controversial issues, most contemporary poskim consider otzar beit din to be the preferred – albeit partial – solution for shmita. Its strong points are:
1) There is no sale of land to non-Jews.
2) It allows farmers to fulfill the mitzvah of shmita as the Torah intended. All other solutions are based on bypassing or canceling the mitzvah.
3) The Jewish farmer who observes shmita gets paid for his toil and does not have to resort to charity.
4) It allows the consumer to actively partake in the mitzvah of shmita by eating fruits and vegetables that are sanctified with kedushat sheviit and by helping fellow Jews in their time of need.

“The main idea of this commandment [shmita] is, therefore, to remove the person’s egocentric perception [of life] and develop a sensitivity to others, public responsibility and national vision. …. There is no doubt in the spirit of the Torah, the sabbatical year entails a mutual responsibility; just as the farmer must care for the poor [by freely providing them the produce of his land], the consumer must also care for the farmer. The responsibility for full observance of the mitzvah lies with us all. “- Rabbi Yaakov Ariel

[1] Sefer Hachinuch, Mishpatim, mitzvah 84.
There is a difference of opinion as to whether the produce becomes hefker on its own or the owner must declare it hefker. If it is the owner’s responsibility to declare it hefker and he does not do so, then taking from the fruit without permission may be considered theft. Therefore it is best to ask permission before taking shmita produce from a private field.
[2] It is forbidden to eat shmita fruit that was kept in private possession after that fruit was no longer available in the fields. See discussion of biyur in Shemittah For The Clueless, question 14.
[3] Many assume that according to the Tosefta, the beit din distributed the fruits for free. However, this is not explicit in the text.
[4] “He [the Rambam] omitted the [parts of the] Tosefta [which mentions] the court’s agents going out etc., because it is not halacha– Radbaz on the Rambam, Hilchot Shmita VeYovel, 7:3.
[5] Rabbi Ben Zion Aba Shaul and Rabbi Yosef Kapach felt farmers should not rely on otzar beit din. Rabbi Aba Shaul pointed out that his objection does not apply to the consumers. They may eat otzar beit din fruit because the farmers are following their rabbis’ rulings and are therefore not considered transgressors. See Hebrew version of this article for sources.
Former Chief Rabbi Mordechai Eliahu(zt’l) also felt that otzar beit din may not be valid halachically, but he sanctioned it because it had become a widely accepted practice and because shmita nowadays is binding only by Rabbinic injunction. Rabbi Eliyahu furthermore emphasized that otzar beit din is preferable to heter mechira and to Arab produce.

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