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Preparing for Shemitah 5782: The Heter Mechira

Part II

Last week we introduced the controversial Heter Mechira, the Israeli Chief Rabbinate selling farmland to a non-Jew to avoid shemitah restrictions. We mentioned that the sale might be forbidden due to the Torah prohibition to sell Israeli real estate to a non-Jew (lo techanem). The lenient view argues that lo techanem does not apply when we sell to preserve Jewish control of Eretz Yisrael.

The Chazon Ish (Shviit 24:1-4) flatly rejects the lenient ruling. He writes, “Lo nitenah Torah l’shi’urim,” one cannot make exceptions to the Torah’s rules. The Chazon Ish adds that the deal is void if one appoints an agent to sell the land since the sale is forbidden. This assertion stems from the Talmudic principle that “ein shaliach l’dvar aveira” (loosely translated, the agency laws do not apply when one appoints an agent to perform a forbidden act). Accordingly, since individual farmers do not sell the farmland to a non-Jew but rather appoint the Israeli Chief Rabbinate as their agent to sell the land, the sale is invalid. Since the Rabbinate, according to Chazon Ish, is violating the Torah by selling the land to a non-Jew, the Rabbinate is not a valid agent of the farmers.

There are three responses to the Chazon Ish. First, the Chazon Ish assumes that “ein shaliach l’dvar aveira” implies that the agency is invalid. Others assert that only the agent, but not the one who appointed him, is viewed as the sinner. These authorities claim that the agency remains valid despite the sin committed by the agent. The Aruch Hashulchan (Even Haezer 141:139) writes that many authorities rule that the agency remains in effect despite the halachic violation. He concludes that this dispute has not been resolved and remains in doubt.

A second response to the Chazon Ish is that the Maharshal (cited and rejected by the Shach C.M. 348:6) rules that if the agent does not realize he is sinning, the rule of “ein shaliach l’dvar aveira” does not apply. Since the Israeli Chief Rabbinate does not believe that it is sinning when it sells the farmland to a non-Jew, “ein shaliach l’dvar aveira” does not apply.

A third response is that the Rama (C.M. 388:15) rules that if it is “established” that this agent will perform the transgression, then “ein shaliach l’dvar aveira” does not apply. The Israeli Chief Rabbinate has undoubtedly established that it executes the Heter Mechira. Although the Shach (C.M. 388:67) vigorously disputes the Rama, one may combine these three arguments in addition to the possibility that the Rabbinate does not violate lo techanem, to justify the validity of the Heter Mechira.

Is the Sale Effective?

For a transaction to be halachically valid, the parties to the sale must have serious intent (Gemirat Da’at, see Kiddushin 26b). Thus, some authorities invalidate the Heter Mechira since the parties are not serious about the sale. These authorities note that the sale is not registered with the government land registry (Tabu).

The proponents of the Heter Mechira argue that since the Rabbinate clarifies that the sale is valid despite not being registered with the land registry, the deal takes effect. They cite Kiddushin 26a as a precedent for this assertion. They also note Teshuvot Divrei Chaim (Orach Chaim 2:37) ruling that Mechirat Chametz is halachically valid even if civil law does not recognize the sale.

The Impact of the Sale: Criticism of the Heter Mechira

Even if the sale is permitted and valid, the Heter Mechira might not impact Eretz Yisrael’s holiness. The opponents to the Heter Mechira point out that the halacha (Rambam Hilchot Terumot 1:10) follows the Talmudic opinion (see Gittin 47) that non-Jewish ownership of land in Eretz Yisrael does not affect the sanctity of the land (Ein Kinyan L’Nochri B’Eretz Yisrael). Thus, even if the non-Jew owns the land, all the laws of shemitah nevertheless apply.

The First Defense

The proponents of the Heter Mechira present two responses. First, since the holiness of Eretz Yisrael today is rabbinic (Shulchan Aruch Yoreh Deah 331:2), we may follow the Talmudic view that believes that non-Jewish ownership of Israeli land removes the land’s holiness (yesh kinyan l’nochri b’Eretz Yisrael). According to this opinion, non-Jewish ownership of land in Israel removes the shemitah restrictions from that land. The Sefer HaTeruma (Hilchot Eretz Yisrael) suggests this approach, and the Vilna Gaon (Biur Hagra Y.D. 331:6) follows it.

This argument stems from the Gemara’s (Gittin 47a) statement that all authorities agree that we say “yesh kinyan l’nochri b’Eretz Yisrael” in Syria. Rashi (s.v. B’suryah) explains that the obligation to observe the laws contingent upon Eretz Yisrael in Syria is rabbinic. The Sefer HaTeruma and the Vilna Gaon extrapolate from Syria to Eretz Yisrael today, where the obligation to observe the laws contingent on the land is rabbinic.

The Second Defense

The second defense is Rav Yosef Karo’s ruling that even if ein kinyan, when a non-Jew owns Israeli land, Eretz Yisrael laws do not apply to that land. Rav Yosef Karo (Teshuvot Avkat Rochel 24 and Kesef Mishna to Rambam Hilchot Terumot 1:10) infers this point from the Rambam (Hilchot Terumot 1:10):

A non-Jew who purchases land in Eretz Yisrael does not annul the obligation to observe the mitzvot [that one must keep in Israel]; instead, the land [he has purchased] remains holy. Therefore, if a Jew subsequently repurchases that land from the non-Jew, the Jew is not considered to have engaged in kibbush yachid (a private conquest of Eretz Yisrael, see Gittin 8). Instead, the Jew is biblically required to separate all tithes and bring bikkurim [from produce grown in this property] as if a non-Jew never owned the land.

Rav Yosef Karo infers from the Rambam that one is obligated to separate tithes from the produce of the land only after the Jew has repurchased the land from the non-Jew. However, while the non-Jew owns Israeli property, the laws that apply to Eretz Yisrael are not operative. Thus, Rav Yosef Karo rules that the laws of shemitah do not apply to non-Jewish owned land. The Pe’at HaShulchan (chapter 23) records the accepted practice from the time of Rav Yosef Karo to treat the produce grown on non-Jewish-owned Israeli land as lacking kedushat peirot shemitah.

Rav Yosef Karo’s ruling is a primary basis for the Heter Mechira. The custom to follow Rav Karo’s decision demonstrates that if one transfers ownership of Israeli land to a non-Jew, the shemitah laws do not apply.

Conclusion

Many decades ago, Rav Yosef Dov Soloveitchik instructed O.U. Kosher to not rely on the Heter Mechira. Rav Soloveitchik argued that the Heter Mechira is highly debatable, and only in very great need may one possibly follow it. Since there is no such pressing need in North America, its Jews may not rely on the Heter Mechira. Therefore, the OU, Kof-K, OK and Star-K do not rely on the Heter Mechira.

However, Rav Yitzchak Yosef, Rav Aharon Lichtenstein and Rav Mordechai Willig permit eating one’s host’s food even if he relies on the Heter Mechira. Consult your rav for guidance about this and all shemitah matters.


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.

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