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Oct 25, 2007

Shmitta: the Hetter Mechira

This is a very difficult aspect of shmitta observance. It is also very detailed and the subject of much debate, great nuance, and much misunderstanding. I would be remiss in giving you the impression via this post that I understand all the issues properly. I do not, yet I feel like writing the post anyway. Maybe some of you can correct my mistakes in the comments and/or fill things in.

Some background: In the late 1800's, Jews were returning to the Land of Israel. The society at the time was largely agrarian based. With the shmitta year of 1889 approaching the jews were very concerned that the yishuv (the settlement of the Land) would collapse if they stopped working for a year +. It would destroy the little sustenance they had and would force many to leave Israel.

The settlers approached the Rabbonim pleading with them to find a solution that would allow them to work and earn a living.

The Rabbonim met in Vilna and came up with a solution of the Hetter mechira in which the land of the farmers would be sold, temporarily, to a non-Jew. By doing so, the land need not lay fallow and the farmer can work (as an employee of the non-Jew) the land and sell the produce.

The hetter was approved for use by one of the gedolim of the time; Rav Yitzhak Elchonon Spektor.

For the following three shmitta years, the settlement used the hetter mechira.

The use of the hetter had opposition by other gedolim such as Rav Samson Raphael Hirsch, the Beis HaLevy, the Netziv and others.

Leading up to the shmitta year of 1910 Rav Kook came out in support of using the hetter mechira, despite having previously opposed it (before he arrived in Israel in 1904).

Rav kook explained why he supported it. he said that when he came to the Land of Israel and saw the great difficulty in living here and in working the land, he understood that there had to be a solution or it would mean the end of the settlement of Israel.

There are a lot of details I am leaving out, and many I am not familiar with, but generally speaking that is the story.

There were many reason why Rav Kook used this leniency. Issues such as Shmitta being only Rabbinic nowadays, not being sure of the correct counting of the years and cycles, sha'at ha'dchak, issues of who actually owns the land (at the time it was all owned by the Turks and the farmers were only like sharecroppers), and other reasons some of which Rav Kook did not publicize.

The opposition to the use of the hetter mechira was great and increases every shmitta year.

The opposition to the use of the hetter mechira is basically based on the fact that we are no longer an agrarian society and even though some farmers are affected, it would not bring about the collapse of Israel or the economy. The original hetter was a one-time thing and had to be re-evaluated for each subsequent shmitta so it cannot be automatically applied every time. There are other issues such as a debate whether the Land of Israel can be sold to non-Jews, fro a halachic standpoint, and even if it can does such a sale help in removing the shmitta regulations from the Land. Other issues such as questioning whether the sale was done properly, who has the right to sell the land (who has ownership status), whether the sale is taken seriously or is just a legal fiction, and more.


I am not taking sides in this issue and I will not be defending one position over the other. As I was quoted in the name of Rabbi Gold - this debate has been going for over a hundred years by gedolei olam and I will not be able to add anything that has not been used in the argument already.

As Jameel posted the other day with an article by Rav Lichtenstein on the topic, we must bemoan the fact that we are not keeping shmitta properly regardless of whether or not you use the hetter. Either by using the hetter or by buying non-Jewish produce, you are not keeping shmitta the way the Torah wanted. Rather you are using ways of getting around the problem.

Rav Lichtenstein also wrote how whether you use or oppose use of the hetter, you should not use your position as a base of superiority and a way of putting down others.

We should realize both sides of the debate have gedolim to rely upon and while you might not agree with the other position, you should at least respect it.

The impetus for this post is actually the following. All the above was just the background.

I saw a letter from Rav Aviner, one of the leading Rabbonim of the Dati Leumi (National Religious) community, on the topic of why he supports the hetter mechira. Some of the reasons were very interesting. I will translate (broadly) it here.

Rav Aviner: It is preferable to purchase (produce) from Jews and not non-Jews. The hetter mechira is not an issur or even a leniency. Rather it is an allowance that has been based completely. The hetter mechira should not be debatable as it has been based in Halachah for over 119 years with the support of great Rabbonim such as; Rav Yitzhak Elchonon, The Maharil Diskin, Rav Yehoshua of Kutna, the Aderet, the Admor of Sochotchov, Rav Yaakov Elisar, Rav Yosef Engel, Rav Kook and others. Nobody in our generation has the ability to come in their place and change the status.

As Rav Kook wrote, if one does not wish to rely on the hetter mechira, it is considered a middas chassidus and a hiddur mitzva.

It is well known that regarding a middas chassidus one must be especially careful not to allow it to be ruined by allowing other leniences or prohibitions to result from the stringency.

Many leniences and prohibitions have come from rejecting the hetter mechira:

1. Harming the livelihood of fellow Jews (quotes passuk)

2. One should always prefer to buy from fellow Jews (quotes passuk)

3. Scorning the earlier generations. If one rejects the hetter and says it is prohibited to rely upon, he might be suggesting that those who relied upon it in previous generations (with support of gedolim) were acting in a prohibited fashion.

4. Shaming others. One who is careful in middas chassidus should not shame or embarrass other jews (by saying the hetter is really prohibited, people who rely on it might become shamed)

5. rejecting the authority of the Rabbis.

6. Lo Techanem. This is a passuk in the Torah that says one cannot give a foothold in the Land of Israel to non-Jews. One cannot sell parts of Israel to non-Jews. If we help support the non_jews living in Israel, we are strengthening them and giving them a foothold. As an aside, this is a major point used by those opposing the hetter, as they say Lo Techanem means one cannot sell the land to non-Jew. According to this explanation it is exactly the opposite; by selling the Land we are weakening their foothold in the Land and strengthening ours.

7. Supporting terrorists. if you reject the hetter mechria and buy produce from non-Jews you are supporting terrorism.

8. The land might not actually belong to the non-Jews. Someone buying produce from non-Jews assumes the land belongs to them and shmitta does not apply. However this is a very problematic issue. How did the Arabs attain so much property in the Land of Israel? They did not buy it. After we were banished from our land it remained desolate for many years. Over the generations they took over our lands. The percentage of lands that were actually sold by jews to Arabs is very small. 99% of the lands owned by Arabs are from having squatted on Jewish owned land. This was the law under the Turkish rulers that allowed squatters to take ownership of desolate land. So many of these lands really belong to Jews, not Arabs, and shmitta would apply (and those buying from Arabs think they do not have the issues of shmitta). Even more so, according to halacha conquering the land acquires ownership. So when the Jews returned and won back the lands in the various wars, all lands reverted to being owned by jews. This is agreed upon by everybody. Even the Admor of Satmar (a great opponent to the State of Israel)agrees that ownership of the lands has been acquired. This creates a great paradox. Arab owned lands in Israel are really Jewish and have a shmitta problem, while Jewish owned lands are sold to Arabs and have no problem with shmitta.

To summarize, with there being one problem of the hetter mechira, which was decided upon by the gedolim and has been used in 17 shmitta years since, in the rejection of this hetter there is a sea of very difficult problems, which makes it difficult to call it a stringency rather it is really a leniency 9to reject the hetter mechira).

Rav Aviner goes on more and mentions some problems with using OBD produce, which I will not get into now.

Rav Aviner concludes; Therefore, we will securely rely upon the hetter mechira which was founded in halacha by gedolei olam, and used for 17 shmittas. We will strengthen the agriculture of our Jewish brothers.We will strengthen our hold on the Land of Israel. And we will strengthen our belief and reliance on the great Rabbinic poskim.


Again, this post does not mean I support use of the hetter mechira. My Rav has spoken against the hetter mechira and says it cannot be relied upon. Personally I do not feel such produce is assur, even if I choose not eat it, as it has the support of great Rabbonim in both this generation and previous generations. And we should remember the words in the letter by Rav Lichtenstein (and this applies to all application of chumrohs and kulas) that one who is machmir or one who is meikil should not look upon others as though they are doing something wrong or that they are better or worse than others.

12 comments:

  1. Very well done. Kol hakavod.

    Now, remind me not to let my kids date yours... ;-0

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  2. Could you post a link to Rav Aviner's letter?

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  3. thanks. and why would that be? because I do not eat hetter mechira? because I did not come out strongly against it?

    yoni - not the original, but you can see it transcripted here

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  4. Rafi,
    without digging into "rav" aviner lashon harah, the reasons he uses are pathetic... we cant be strict due to maybe insulting earlier generations ?

    Maybe he should have thought of lo techanem when he was telling us to walk out of gush katif well behaved..

    Rejecting rabbi's authority? clearly most rabbi's are AGAINST heter mechirah..

    So who is "rav" aviner the mechutzaf to reject the previous generation of rabbi's authority who deemd heter mechira forbidden?

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  5. Elchonon,

    I realize that Rav Aviner may not be Lubavitch, and may have only have spent his entire life living a life of RZ (come back when you're 60, ok?), and may have only led tens of thousands of people directly and indirectly, but until you've done more for klal yisroel than send a few SMSes or try and make yourself into a (non-literal) martyr, then try and limit your criticism of him to something that's both respectful and coherent.

    His smicha is not yours to take away, and your mix of politics and halacha (in your case of lo sechanem re: gush katif) shows you have no understanding of the concepts of maaseh, grama, hasaras moneiah, lifnei iver, and misayeia, all of which are important to decide how one must behave when faced with a decision that would seem to contradict halacha.

    Regarding your disregard for his "pathetic" reason about respecting previous generations; am I correct in assuming you have no knowledge of hilchos gittin?

    B"H R' Aviner is accessable so that you can go ask the "mechutzaf" mechila yourself.

    At that point, I'd personally be glad to welcome you back to engage in a proper machlokes l'shem shamayim regarding hilchos shemita (although maybe you ought to find someone else, since I personally do not eat heter mechira).

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  6. elchonon - I have no interest in this becoming a debate over whether heter mechira is good or not. As I mentioned in the post, both sides have whom to rely upon. I was simply giving a review of the heter mechira as I understand it.

    These reviews I am writing on the various aspects of shmita help others understand, give those unaffected (such as in chu"l) an idea of what the issues are, and help me clarify the issues to myself.

    As to what you wrote, I am not a big fan of Rav Aviner. Just the opposite. However his letter was well written in the sense that it explained many of the various reasons and logics behind supporting HM. That is why I took the time to translate it. Not because I consider him an authority to listen to, though many other people do.

    In an email I wrote to a friend while discussing the letter, I wrote that reason #6 (Lo Techanem) use very backwards logic. I particularly like and appreciate that, though I do not agree with the logic in the argument.

    Regarding previous rabbonim and disrespecting them, He said if one uses the term "assur" one is disrespecting them. One can always choose to be more stringent. But if one says assur where previous generations said muttar, that is often described in halacha as "motzi la'az al ha'rishonim"

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  7. Rafi,
    Don't even try to respond to elchonon regarding any of the issues that you brought up since it is obvious that he has no interest other than a personal attack on Rav Aviner.
    His insinuations regarding "lashon harah" is just as bad as the lies and fabrications that he tries to refer to.
    His writing "rav" with quotes is just stupid and childish.
    His calling the reasons "pathetic" is just his way of not having to deal with any halacic reasoning.
    His bringing up of Rav Aviner's position regarding Gush Katif just shows us all that the reason for his hatred is just politics.
    And his calling Rav Aviner a "mechutzaf" is disgusting and unforgivable.
    Yehudah g.

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  8. Firstly mike there was a letter signed by many rabanim including rav shapiri zt'l forbiding rav aviner to pasken (see i skipped the " for you)

    It has nothing to do with his being a misnagid! I dont even live amongst lubavitcher... I do know that I saw him punch and choke people with my own eyes..

    The beis din rav elyshav uses also paskend that you cannot publicize his piskey din.. furthermore rav elyshav told rav dov levin that he agrees with this psak and that religious broadcast institutions should not publicize his piskey din.

    I toid you I wanted to skip lashon hara, perhaps my disrespect was uncalled for but this is the case..

    http://aviner.net/psak_niduy.php

    Take it up with rav karlitz, lior, yosef etc...

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  9. Although I'm probably wasting my time, here goes again...

    If you follow those who don't like R' Aviner, then you are not only entitled but required to ignore his piskei halacha. Of course, you know what R' Elyashiv et al thought about fighting soldiers, don't you? You know what they think about saying Hallel on Yom HaAtzmaut, I assume. And I'm certain you know what they think about Internet use.

    Asei Lecha Rav.

    When a drunk uses a lightpost, he may find support, but not illumination. Your cherry-picking piskei halacha is about as valid.

    Alternatively, feel free to say that you're operating on your own, with no support from any gadol, with no support from any politician, and with no support from any leader. Just don't be surprised when you're treated accordingly.

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  10. Firstly, that issue that you are bringing up is a letter regarding Rav Aviners way of paskening ketamim (menstrual blood stains). I find it very difficult to understand how Rav Aviners psak that certain Ketamim do not make a woman a niddah have anything to do with heter mechirah?
    Secondly, my son was also there in the much publicized incident in gush katif when Rav Aviner pushed a kid that was holding a knife trying to puncture the tires of a police jeep. Any else regarding "punching and choking people" is unverified lashon horah (whether you saw it or not, and whether that hate website that you brought says so).
    And, yes, your disrespect was uncalled for.

    By the way when you ended off with the comment that we should take it up with rav lior, yosef etc, are you referring to the fact that both these rabanin hold that that it is not only permissible but even preferable! to eat heter mechirah?

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  11. I was not attacking her mechira per say rather rav aviner's standpoint and arguements.. namely one not eating heter mechira would be disrespectfull to rabbanim that do hold so.. (but hows is heter mechira not disrespectfull to those that dont?) and that its shaming others... what kind of arguement is that ? maybe eating heter mechirah is shaming those that are moser nefesh to eat kedushat shviit k'halacha i.e. jameel sifting through the garbage..

    So I have no problem with those that eat heter mechirah or badatz from arabs.. I just see it as wrong and hypocrytical to attack those that do.

    As a general rule I say "to each his own" and dont tell people how to live their lifes.

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