Part II

This week we shall explore whether shemitah observance nowadays is required biblically or rabbinically. This question has significant ramifications because one can rule more leniently regarding a rabbinic prohibition than a biblical prohibition. For example, the controversial heter mechirah works only if shemitah’s observance today is a rabbinic obligation.

Does Eretz Yisrael Retain Its Kedushah in Our Times?

Hashem endowed Eretz Yisrael with special holiness when He promised the Land to Avraham Avinu (see Kaftor VaFerach chapter ten). According to Rav Yehuda HaLevi (Sefer HaKuzari 2:14), this unique quality was inherent in Eretz Yisrael from the time of Creation. Thus, Hashem refers to Eretz Yisrael as His Land (Yoel 4:2), we view Eretz Yisrael (Shemuel I 26:19) as Hashem’s nachalah (portion), and the Torah (Devarim 11:12) tells us that Hashem’s eye is always on Eretz Yisrael. These unique qualities persist throughout the ages regardless of who controls the land (see Kaftor VaFerach ibid., Teshuvot Chatam Sofer Yoreh Deah 23, and Rav Avraham Yitzchak HaKohen Kook’s introduction to Shabbat HaAretz).

The Gemara in many places (Yevamot 82, Arachin 32b, and Niddah 46b) records a Tannaitic debate whether Eretz Yisrael retains special holiness (kedusha) during the periods of destruction. This holiness does not emanate from Hashem’s presence in the land, as described in the previous paragraph. Instead, this holiness stems from the Jewish people’s possession of the land. Hence, this aspect of the holiness might have elapsed when invaders expelled us from our land.

The Tannaim debate whether this holiness of Eretz Yisrael elapsed after the destruction of the First Temple. The Gemara presents the dispute whether the first kedusha (kedusha rishona) initiated by Yehoshua upon conquering Eretz Yisrael was temporary or permanent. Almost all Rishonim rule that the kedusha rishona was temporary (see, for example, Rambam Hilchot Beit HaBechirah 6:16 and Raavad to Hilchot Terumot 13:13).

Similarly, the Gemara records a debate whether the holiness initiated by Ezra upon leading the return to Eretz Yisrael (referred to as the kedusha shniya) dissipated upon the destruction of the Second Temple. The Rishonim discuss how to resolve this debate. Many Rishonim (for example, Rambam Hilchot Beit HaBechirah 6:16 and Raavad to Hilchot Terumot 13:13) assert that the kedusha shniya is permanent. The Rambam (ad loc) presents a fascinating and somewhat cryptic explanation of why the kedusha shniya is permanent whereas we regard the kedusha rishona as temporary.

The Rambam’s comments have engendered much discussion between Acharonim (see the sources cited in the Encyclopedia Talmudit, 2:217-218 notes 121 and 122, and Rav Yosef Dov Soloveitchik’s explanation recorded in Al HaTeshuvah pp. 300-308). Another group of Rishonim asserts that the kedusha shniya also elapsed upon the destruction of the Second Temple. These authorities include the Sefer HaTerumah (Hilchot Eretz Yisrael) and Rabbeinu Simcha (cited by the Or Zarua, Avodah Zara 299).

It is important to note that the second group of Rishonim is far less prominent than the first. According to the first group, nowadays we may be biblically obligated to observe shemitah. However, according to the second view, shemitah’s observance after the Second Temple’s destruction cannot be biblically mandated since the holiness of Eretz Yisrael has elapsed.

Rav Yosef Karo (Kesef Mishneh to Rambam Hilchot Shemitah VeYovel 4:25, 9:1, and 10:9) asserts that the Rambam believes that shemitah observance today is biblically mandated. Several Acharonim follow this view, including the Netziv (Teshuvot Meishiv Davar—Kuntres Devar HaShemitah), Teshuvot Beit Halevi (3:1), and Rav Yechiel Michel Epstein (Aruch HaShulchan HeAtid 1:1).

Another consideration in favor of the view that shemitah today is biblically mandated is the intriguing possibility that the State of Israel’s control over portions of Eretz Yisrael revives the kedusha shniya and perhaps even the kedusha rishona. For discussions of this issue, see Teshuvot Tzitz Eliezer (10:1) and Rav Shlomo Yosef Zevin (Techumin 10:24-25).

The Disputed Requirement Of Bi’at Kulchem

Other authorities, including the Maharit (Teshuvot 1:25) and Rav Chaim Soloveitchik (commentary to the Rambam Hilchot Shemitah VeYovel 12:16), argue that the Rambam believes that shemitah today is only rabbinically mandated although the kedusha shniya is permanent. These authorities note that the Rambam (Hilchot Terumot 1:26) asserts that the contemporary obligation to remove terumot and maasrot is only rabbinic because not all Jewish people reside in the Land of Israel (bi’at kulchem). This unfortunate situation has existed since the exile of the 10 tribes in the eighth century BCE. Rambam’s ruling is based on Ketubot 25a. The Gemara states that the obligation to separate challah today is only rabbinic since not all Jews reside in the Land of Israel. The Rama (Yoreh Deah 331:2) notes the common practice to follow the Rambam.

The Rambam extrapolates the requirement for bi’at kulchem from the laws of challah to terumot and maasrot. The Maharit and Rav Chaim believe that the Rambam applies this principle to the laws of shemitah as well. A compelling proof to this argument is that the pasuk the Rambam cites as the source for the requirement of biat kulchem is in the context of shemitah. On the other hand, Rav Yosef Karo and those who follow his view argue that the Rambam mentions the requirement of bi’at kulchem only in the context of the laws of terumot and maasrot but not in the context of the laws of shemitah.

An exciting issue emerges from the prediction that most Jewish people will soon be residing in the Land of Israel. Indeed, some claim that most Jews, as defined by halacha, already live in Eretz Yisrael. For a discussion of the impact this may have on the requirement of bi’at kulchem, see Rav Shlomo Yosef Zevin’s article in Techumin 10:24-25.

The Possible Link Between Shemitah and Yovel

The Gemara (Gittin 36) addresses whether the requirement to observe shemitah today is mandated biblically or rabbinically. The Gemara indicates that Rebbe and the Rabbanan dispute this question. Rebbe believes (as explained by Rashi s.v. BeShviit) that the laws of shemitah and the laws of yovel are linked. Therefore, Rebbe argues that since yovel is inoperative, shemitah is inactive (on a Torah level). The Rabbanan reject this link between the laws of shemitah and yovel.

It is not clear which of these opinions we accept. Usually halacha follows the majority view, in which case we follow the Rabbanan. On the other hand, the Yerushalmi (cited by Rashi ibid.) presents Rebbe’s view as normative.

Conclusion

There is much debate whether we are obligated to observe shemitah today on a biblical or rabbinic level. However, most 20th-century authorities rule that shemitah today is only a rabbinic obligation. These authorities include Rav Avraham Yitzchak HaKohen Kook (introduction to Shabbat HaAretz), the Chazon Ish (24:7), Rav Shlomo Yosef Zevin (LeOr HaHalacha page 110), and Rav Shlomo Zalman Auerbach (Teshuvot Minchat Shlomo 1:44). Yalkut Yosef repeatedly endorses the view that shemitah today is a rabbinic obligation.

Rabbi Haim Jachter is the spiritual leader of Congregation Shaarei Orah, the Sephardic Congregation of Teaneck. He also serves as a rebbe at Torah Academy of Bergen County and a dayan on the Beth Din of Elizabeth.