Feb 18, 2009
Is Hetter Mechira a legal fiction?
The haredi press this week, both Yated and Mishpacha as you can see above, have written articles about a recent court decision.
The Israel Lands Authority sued 3 farmers from Moshav Batzra for improper use of the land without prior approval. They were using the land for carpentry, juice production, and magazine distribution, instead of for farming.
The defendants claimed that they could not be sued because they had sold the land under the hetter mechira arrangement. Thus, the land was not theirs at the time and the claim against them is invalid.
The courts did not accept the argument and said that "the sale of the land [via hetter mechira] does not remove any other rights [and obligations] from the owner. The sale is purely for the purpose of the mitzva of shmitta, but does not allow them to treat the land as if they have nobody to answer to, and have no obligations... The seller knows that the sale is being done purely for the purpose of the mitzva, and he is trusted to not apply the sale for anything else aside from the mitzva."
The court is basically saying, and they are basing it on the wording of the Rabbinic Council's wording of the hetter mechira, that the hetter mechira is a legal fiction and cannot be really applied in any way other than to "claim" the land is sold so vegetables can be grown. regarding anything else, the sale is irrelevant.
Is there anybody who knows more about hetter mechira than me that can comment on this? Does the court have a right to say such a thing? If I sold my land, what right do they have to say the sale is irrelevant? Is it true? In the meantime, such a statement by the court validates the opposition to the use of the hetter mechira arrangement.
I think the farmers should appeal this to the Supreme Court claiming that they sold the land, and who are the courts to decide that it was for only one purpose but not all encompassing....