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....


  1. Sounds alot like selling your chametz.

  2. I agree with Dan.

    If you sold your chametz via rabbinical channels, I don't think a secular court would say the sale was valid also for the purposes of avoiding liability. I'm not even sure a Bet Din would allow you to do that.

    Anyone know of such rulings re selling chametz?

  3. I heard that a similar issue was brought up some years ago. Apparently, the land sales were not legally binding because they were not approved by the Israel Lands Authority (Minhal Kark'ei Yisrael).
    Because of that a law was passed that heter mechira through the Rabbanut is exempt from approval by the ILA. (I believe that there were those who said that this wasn't a halachic problem.) This issue perhaps can be circumvented as well either by an explicit law from the kenesset that with a heter mechira sale liability stays with the previous owner or with whoever manages the actual field. Or it can be done with a change in the shtar mechira that liability for use of the field remains with the previous owner.

    Apparently, courts in the US and in Israel have also exempted people from paying their kesuva on the grounds that it is only done for religious ceremony. There are poskim who say that a kesuva must be collectable by the dina demalchusa.

  4. would the courts recognize a kinyan sudar or chalifin? does that mean marriages and many acceptable business transactions according to halacha are no good because the secular courts would not recognize them? what about hetter iska?

  5. We could come up with a good list of Halachik solutions that Israel's courts would find unacceptable.

    Mechirat Chametz, Heter Mechira, Heter Iska, Pruzbul, and many more.

    Do you think that a secular court could care less if Shmita eradicated a person's debts? With or without a pruzbul, they would demand that all debts be paid in full.

    Its stupid for Chareidi newspapers to use the secular courts as "proof" since the secular courts would rule against Halachik rulings 9 times out of 10.

  6. My Rabbi from when I was in Toronto spoke a number of times about these types of sales in Halacha. One major component is that the seller wants to sell. (ie. No Jew would ever want to own Chametz on Pesach)

    He had a case where he was asked to write up a shtar so a business could operate on Shabbos. The owner only wanted a technical sale that validated the current business practice. My Rabbi said it was a fictional sale and refused to write up the shtar unless changes were made.

    The owner found another Rabbi to do what he wanted. After a number of years the non-Jewish partner realized he was not getting the benefits of the sale that were due to him and sued.

  7. I am very surprised that Yated publicized this decision. It is totally hypocritical and dishonest from their part. Of course secular courts see this from the side of secular law.
    If the courts had validated the sale, one can imagine how Yated would react.
    Where is the yashrus? By the way I personally do not rely on Heter Mechira.
    As for the sale may be it can be viewed as a sale for a limited purpose (like buying a tape/disc without permission to copy it).


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