Part 1

Introduction

One of the most controversial halachic issues in modern times has been the Heter Mechira, the sale of Israeli farmland to a nochri to avoid the prohibition of working the land in Israel during the shemitah year. Since the shemitah year of 1888-1889 (the first shemitah of the modern return to Zion), the halachic propriety of the Heter Mechira has been vigorously debated by the halachic authorities of each generation. The Bet Halevi, Netziv, Aruch Hashulchan, Ridbaz, Chazon Ish, and Rav Yosef Shalom Elyashiv are among the many rabbis who oppose the sale. Rav Yitzchak Elchanan Spektor, Rav Kook, Rav Tzvi Pesach Frank, Rav Yechiel Michel Tukachinsky, Rav Shlomo Yosef Zevin, and Rav Ovadia Yosef are among the many rabbis who approve of the sale. No consensus has emerged regarding this issue. Many observant Jews rely on the Heter Mechira, and many do not. This week and next week we will briefly survey the major points of debate in this historic dispute

It is vital to emphasize that even the proponents of the Heter Mechira do not seek to establish it as a permanent feature of Jewish life, unlike the sale of chametz before Pesach. Rav Avraham Yitzchak Hakohen Kook, for example, writes:

The Heter Mechira is merely a temporary measure (horaat shaah) that we implemented only because of the overwhelming need. God forbid that one should consider annulling a tremendous and central mitzvah such as the holiness of shemitah unless it is a matter of life and death, such that if we do not sell the land, many will die of starvation and the fledgling new Jewish settlement in Eretz Yisrael will be destroyed. However, when a competent beit din concludes that the sale is unnecessary and that the nation can observe shemitah without endangering lives, God forbid that the deal should occur in such circumstances.

Why Is the Heter Mechira So Controversial?

Many people ask a fundamental question regarding this dispute. The Talmud is replete with examples of avoiding a halachic prohibition by transferring title of ownership of a particular item (Maaser Sheni 4:5, Tosefta Pesachim chapter 2, Beitzah 17a, and Nedarim 48a). The Gemara (Bechorot 3b) even encourages selling an animal to a non-Jew before it gives birth for the first time to avoid the restrictions regarding a bechor (firstborn). Moreover, mechirat chametz has developed into a yearly routine in observant Sephardic and Ashkenazic communities.

A basic answer is that there is no precedent in the Gemara for a sale to avoid shemitah restrictions. At least three major points of criticism may account for the absence of a Talmudic precedent for the sale. The first criticism is that Halacha forbids the sale of Israeli real estate to nochrim. The second criticism of dispute is the contention that the deal is a charade and thus invalid. The third criticism is that a nochri’s ownership of Israeli land does not remove shemitah prohibitions from that land.

Moreover, almost none of the sales referred to earlier affect abrogating an entire mitzvah from the Torah. Chazal encourage the sale of the animal that is about to give birth for the first time due to the great difficulty of observing the laws regarding the bechor today when we very sadly do not have the Beit Hamikdash. The opponents of the Heter Mechira argue that this sale flippantly eliminates a Torah prohibition. We will now begin to examine three significant challenges to the validity of the Heter Mechira.

The Prohibition to Sell Israeli Land to Non-Jews

The Torah (Devarim 7:2) presents the prohibition of Lo Techanem (do not show them favor) concerning the seven nations that we were commanded to conquer upon entering Eretz Yisrael. The Gemara (Avodah Zara 20a) explains that this prohibition has three branches: we are not to extend gratuitous compliments to them, we are not to give gratuitous gifts, and we are not to sell them land in Israel. Tosafot (ad. loc. s.v. D’amar) writes that in all likelihood, these prohibitions apply to all nochrim, not only the seven nations.

Accordingly, the Netziv (Teshuvot Meishiv Davar Yoreh Deah Kuntress Dvar HaShemitah) rejects the Heter Mechira because we are forbidden to sell Israeli land to a nochri. The Netziv asserts that selling the farmland to a nochri is a more severe prohibition than failing to observe shemitah. Lo Techanem is undoubtedly a biblical prohibition, and many authorities rule that shemitah today is only a rabbinical obligation. The Netziv described the situation as “running from a wolf and encountering a lion.”

The proponents of the Heter Mechira respond that selling the farmland to avoid shemitah does not violate Lo Techanem. They note that some authorities (such as the Bach, Choshen Mishpat 249) rule that this prohibition does not apply to a monotheistic nochri who worships only one God, such as a Druze or a Moslem. The Israeli Chief Rabbinate is particular to sell the land to a Druze or a Moslem for this reason.

Another reason why the sale may not violate Lo Techanem is that the deal is only temporary. Since the time of Rav Yitzchak Elchanan, the sale has been only for two years. The proponents of the Heter Mechira point out that the Rambam (Hilchot Avodah Zara 10:4) writes, “Why are we forbidden to sell them land? Because the Torah states Lo Techanem, that one may not give them a resting place in the Land. If they do not have land, then their residence in Israel shall be temporary.” The proponents of the sale argue that it is unusual for the Rambam in the Mishneh Torah to offer the reason for a mitzvah. The Rambam presents the reason for this prohibition, they argue, because the prohibition applies only when its logic applies. Thus, since the sale is only temporary, Lo Techanem does not apply since the nochri is not presented with the opportunity to reside permanently in Israel (see Rav Kook’s Shabbat Haaretz 58).

A precedent for this ruling is a 17th-century responsum written by Rav M. Robbio, the rav of Chevron (Teshuvot Shemen Hamor, Yoreh Deah 4). This responsum permitted the sale of a vineyard to a nochri before shemitah for two years. It is reported that Rav Yitzchak Elchanan considered this ruling a vital precedent for his approval of the Heter Mechira. Teshuvot Yeshuot Malko (number 55) added that the Heter Mechira is conducted to preserve the Jewish presence in Eretz Yisrael. When a sale to a non-Jew enhances the Jewish presence in Israel, Lo Techanem does not apply.

Next week, God willing and bli neder, we will explore why the Chazon Ish rejects this line of reasoning.

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.