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Iyar 5768

What is an Otzar Beis Din, and is it Good for the Jews?


Written by the rabbi


Well, what do the words "Otzar Beis Din" mean? And, as an old friend of mine would ask, "Is an Otzar Beis Din good for the Jews or bad for the Jews?"

Literally, the words mean "a storehouse operated by Beis Din." Why would Beis Din operate a warehouse? Is this some type of gmach or warehouse for impounded goods? Or a place where Beis Din stores people who are recalcitrant to follow its rulings? Although these might be good ideas, they have nothing to do with an Otzar Beis Din, which is a halachically approved method of distributing shmittah produce.

Before explaining what is an Otzar Beis Din, we must first overview the halachos of shmittah. These rules fall under two general categories:

(1) Laws of the Land
(2) Laws of the Fruit.

LAWS OF THE LAND
The Torah (VaYikra 25:1-7) teaches that every seventh year is shmittah, and we are prohibited from working the land of Eretz Yisroel. One may not plow, plant, prune, or harvest ones grapevines or perform most other agricultural work. Furthermore, one may not allow ones land to be worked during shmittah, even by a gentile (Gemara Avodah Zarah 15b). Since we follow the opinion that shmittah today is only miderabbanan, we have one leniency -- one may perform activities whose purpose is to prevent loss (see Gemara Moed Katan 3b). For example, one may water plants and trees so that they do not die (Gemara Moed Katan 3b; Rambam, Hil. Shmittah 1:10; Cf. Chazon Ish, Shviis 16:4, 21:14, who is more lenient.).

The landowner may not treat what grows during shmittah as his own; rather he must allow others to enter his field or orchard and help themselves. If his field is fenced, the owner must leave the gate unlocked and should remove any impediments that discourage people from helping themselves to the produce (Rambam, Hil. Shmittah 4:24). They may take only as much as their family will eat, and the landowner himself also may take this amount (see Rambam, Hil. Shmittah 4:1). According to many poskim, the owner has a special mitzvah to declare that his produce is hefker, ownerless (Shu"t Igros Moshe, Yorah Deah 3:90 s.v. vihataam).

One must not pick shmittah produce the way one usually would, but with a shinuy, some variation from the usual (Sifra). One may not sell shmittah produce in a business manner (Rambam, Hil. Shmittah 6:1).

LAWS OF THE FRUIT

Shmittah produce is imbued with special sanctity, called kedushas shviis. The Torah provides specific rules that govern how one treats them. These laws fall under the following categories:

THE WAY IT IS EATEN
The Torah teaches that shmittah produce may be eaten, but it may not be ruined. What types of "ruining" did the Torah prohibit? Foods that are usually only eaten cooked should not be eaten raw, and those that are not cooked should not be cooked. For example, one may not eat shmittah potatoes raw, nor cook shmittah cucumbers or oranges, even as part of a recipe. One may only feed shmittah produce to ones animals if it is no longer edible. Similarly, one may not squeeze a fruit into juice, since this is considered "ruining" the fruit, although one may squeeze grapes, olives or lemons that have kedushas shviis since in these cases the fruit is not ruined, but improved, when squeezed. However, one may not squeeze apples or carrots, even if one usually does so, since one is ruining the fruit in the process of extracting its juice. Similarly, one may not add slices of shmittah orange to a recipe for a roast since the orange is ruined in the process even though the roast is improved (Shu"t Mishpat Kohen, #85). Similarly, one may not feed animals shmittah produce that is usually eaten by people. However, one may feed animals shmittah product that is typically used as feed, such as peels and seeds that people do not consume, or if they are no longer considered fit for human consumption. It goes without saying that one must be careful not to actively destroy shmittah produce.

If someone errantly squeezed a shmittah fruit, or cooked produce that should have been eaten raw, the finished product is permitted. If one uses a shmittah product as an ingredient, one must treat everything that absorbs the taste of the shmittah product with the laws of kedushas shviis. Therefore, if someone used shmittah potatoes in a cholent, or shmittah onions or bay leaves in a soup, one must treat the entire cholent or soup with the laws of kedushas shviis.

COMMERCE WITH SHMITTAH PRODUCE
One must be careful not to sell shmittah produce in a way that implies that one is its true owner. For this reason, shmittah produce may not be sold by weight or measure (Mishnah Shviis 8:3), nor sold in a regular store (Yerushalmi Shviis 7:1). Instead they should be distributed in a way that implies that this is a division of produce rather than a sale.

One may not export shmittah produce to chutz laaretz (Mishnah Shviis 6:5). There is a halachic controversy whether one may ship esrogim to chutz laaretz for people to fulfill the mitzvah (Beis Ridbaz 5:18; Igros Moshe, Orach Chayim 1:186).

SANCTIFIES ITS EXCHANGE
Shmittah produce has an unusual halacha in that it is tofes damav, transfers its special laws onto the money or other item that is exchanged for it (Gemara Sukkah 40b). For this reason, if one sells or trades shmittah produce, the money or other item received in exchange also has kedushas shmittah and must be treated with all the laws mentioned above. Even so, the original produce maintains its kedushas shviis.

TERUMOS AND MAASROS
An interesting leniency applies to shmittah produce. Since it is halachically ownerless, there is no requirement to separate terumos and maasros from shmittah produce. The poskim dispute whether one must separate terumos and maasros from produce taken from the field of an owner who did not observe shmittah and did not allow people to help themselves (Shu"t Avkas Rocheil #24; Shu"t Mabit #11).

SEFICHIM
The Torah permits eating produce that grew by itself without working the field during shmittah. However, Chazal felt it necessary to prohibit grains and most vegetables that happened to grow on their own during shmittah year or were planted in violation of the laws of shmittah. The reason for this was that, even in the days of Chazal, it was unfortunately common to find Jews who deceitfully ignored shmittah laws. One practice of enterprising, unscrupulous farmers was to plant grain or vegetables and market them as produce that grew on its own! To discourage this illegal business, Chazal forbade even grains and vegetables that did grow on their own, a prohibition called sefichim, literally, "plants that sprouted". Several exceptions were made, including that the produce of a non-Jews field is not prohibited as sefichim. Since a gentile is not obligated to observe shmittah, Chazal saw no reason to ban produce grown during shmittah in his field (Rambam, Hil. Shmittah 4:29).

OWNERLESS
Since all shmittah produce is halachically ownerless, every consumer has the halachic right to "help oneself" to whatever his family might eat. (The poskim dispute whether one has the right to do this if the owner refuses entry. Even if it may be permitted, I do not recommend helping yourself to shmittah produce if the owner is not observing the laws of shmittah.) If my neighbor owns fruit trees, I have the right to enter his field and help myself. Similarly, if he has a vineyard, I may enter his vineyard and take as many grapes as my family can eat as table grapes or drink as wine. The field and tree are not ownerless, but the produce is.

WHAT IS AN OTZAR BEIS DIN?
With this introduction, we can now discuss what an Otzar Beis Din is. The owner of a vineyard is not required to produce wine for me, only to allow me to harvest the grapes for myself. If I do not have the equipment or expertise to press and process grapes into wine or olives into oil, I will be unable to utilize my rights to these fruits. Similarly, although I have a right to travel from Yerushalayim to pick citrus, mangos and bananas grown along the coast or in the northern part of the country, it is not that convenient for me to go. How then can I possibly utilize the benefit of shmittah?

Enter the Otzar Beis Din to help out! Beis Din represents the consumer and hires people to gather the fruit, crush the grapes and olives into juice and oil, ferment the juice into wine, package the product, and then distribute it to the consumer. The Otzar Beis Din acts as the consumers agent and hires pickers, truckers, and other laborers; rents wine production equipment; purchases the bottles; produces shmittah fruits, wines and oils; and delivers them to a convenient distribution center near my house.

Obviously, the Otzar Beis Din cannot expect the pickers, truckers, and other laborers to work as unpaid volunteers, nor can they use the production equipment without paying rent. Similarly, the managers who coordinate this project are also entitled to a wage for their efforts. The Otzar Beis Din divides these costs among the consumers. However, no charge is made whatsoever for the fruit, since they are hefker, only for the labor and other costs involved. Thus, Otzar Beis Din products should cost less than regular retail prices for the same items.

Similarly, the farmer is required to allow anyone to enter his field and help himself to his crops. However, since it is inconvenient for a resident of Yerushalayim to travel to an orchard in the northern part of Israel or along its coast to pick oranges and bananas, the Otzar Beis Din picks and transports them to the consumer. All the other halachos of shmittah apply to this produce.

A "MODERN" OTZAR BEIS DIN
The Rabbonim and Beis Din of Yerushalayim organized the first modern Otzar Beis Din 97 years ago. In 5670 (1910), Rav Tzvi Hirsch Cohen, a talmid chacham from Rechovot who owned vineyards and orchards, came to the Rabbonim of Yerushalayim requesting that they function as his Beis Din to distribute the wine and fruit from his orchards for the coming shmittah. The written contract, extant to this day, was signed by Rav Chayim Berlin, Rav of Yerushalayim at the time; Rav Yosef Chayim Zonnenfeld and Rav Pesach Frank, both of whom were later rabbonim of the city of Yerushalayim; and by two other prominent dayanim, Rav Yisroel Yaakov Yaavetz and by Rav Moshe Nachum Wallenstein. To enable Yerushalayim residents to receive wine and fruit from Rav Cohens orchards, someone had to arrange to harvest the fruit, process the grapes into wine, and transport the products to Yerushalayim. Since Rav Cohen was the most qualified person to take care of these arrangements, the Beis Din appointed him to be their representative on behalf of the general public to harvest and process the produce and transport it to Yerushalayim. As an agent he was entitled to a wage for his work, as were the other employees who harvested, crushed, packaged, and transported the crop, but no one was entitled to any profits on the produce.

The Beis Din established several rules to maintain that the laws of shmittah were scrupulously kept in this arrangement, and to guarantee that Rav Cohen was paid as a manager and not as an owner of the product. For one thing, they predetermined the price that the consumer would pay for the wine, guaranteeing that it be significantly lower than its usual market price (Sefer Minchas Yerushalayim pg. 161).

Because of the laws governing the harvest and use of shmittah products, the Beis Din also insisted on the following rules:

1) The wine and fruits could be distributed only to people who would observe the shmittah sanctity of the products (Sefer Minchas Yerushalayim, pg. 163; see Tosefta Shviis 6:11).

2) The vineyards and orchards had to be available for any shmittah observant person to enter and harvest for his own needs (Sefer Minchas Yerushalayim pg. 181).

3) The products were not distributed through stores, but were divided as a communal division of bulk product. The products were not weighed or measured. Each individual who participated in dividing the shmittah produce paid Rav Cohen as Beis Dins agent, for which the consumer was entitled to "shares" of wine and produce, which he delivered in bulk containers without an exact weight.

4) The actual harvest of the product was performed by gentiles and in an atypical way (Katif Shviis pg. 125).

In his analysis of the procedure of an Otzar Beis Din, the Chazon Ish (Shviis 11:7 s.v. bemashekasavti) follows a more lenient approach than that of the Beis Din of Yerushalayim. He ruled that representatives of an Otzar Beis Din may harvest in the normal way and use Jewish labor. Thus the Otzar Beis Din of a modern farm following the Chazon Ishs ruling allows Jewish staff to use combines to harvest and process the shmittah produce (Sefer HaShmittah pg. 21).

In addition, the Chazon Ish permitted weighing and measuring produce sold through Otzar Beis Din. In his opinion, the prohibition against weighing and measuring shmittah produce is only because this indicates that I am the owner of the produce. However, weighing and measuring Otzar Beis Din produce is to determine a fair division of costs involved in supplying the produce, and not to demonstrate ownership.

The Otzar Beis Din of Yerushalayim 97 years ago was stricter than this approach and did not allow any weighing or measuring of produce. Each participating household received "units" of wine and/or fruit which were deliberately approximate and not measured or weighed.

In a modern Otzar Beis Din, the grower plants everything before shmittah and is given extremely detailed instructions regarding what he may and may not do during shmittah (Katif Shviis pg. 126). The grower must allow any shmittah observant person to enter the field or orchard and help himself to the produce (Mishpetei Aretz pg. 103).

Usually, the grower has agreed in advance to a price for his produce which he will receive regardless of the quality of the produce. The grower must understand that this price is not a purchase of the produce, but compensation for his out-of-pocket expenses, including compensation for his own time.

"HETER OTZAR BEIS DIN"
Now is the time to approach our second question: "Is an Otzar Beis Din good or bad for the Jews?" The modern term "Heter Otzar Beis Din" is used pejoratively. The purpose of an Otzar Beis Din is to service the consumer, not the producer, as I explained above. Unfortunately, unscrupulous individuals sometimes manipulate the rubric of Otzar Beis Din to allow a "business as usual" attitude and violate both the spirit and the halacha of shmittah. If the farmer is operating with a true Otzar Beis Din, he will allow a shmittah observant person to enter his field and help himself to the produce. If he does not allow people to pick their own without charging them, then he is violating the basic laws of shmittah and his produce distribution is not according to Otzar Beis Din principles.

I know of farms that call themselves "Otzar Beis Din" but in reality bar free entry of their fields during shmittah, or where the field owner treats the produce as completely his own and charges accordingly. Since this contradicts the meaning of Otzar Beis Din, these cases are called heter Otzar Beis Din; meaning a permissibility based on an abuse of the concept of Otzar Beis Din. Because of these concerns, some hechsherim discourage the use of Otzar Beis Din. (See extensive discussion of this question in Minchas Yerushalayim Chapter 9.)

Thus in answer to our question whether Otzar Beis Din is good for the Jews or bad for the Jews, the answer is that although it is good for the Jews in theory, in practice Otzar Beis Din becomes bad for the Jews when it degenerates into a heter Otzar Beis Din.

For the modern farmer, observing shmittah is true mesiras nefesh, since among many other concerns he also risks losing customers who have been purchasing his products for years. Of course, since a Jew realizes that Hashem provides parnasah and that observing a mitzvah will never hurt anyone,, a sincerely observant farmer obeys the Torah dictates knowing that Hashem attends to all his needs. Indeed, all recent shmittos have had numerous miracles rewarding observant farmers in this world for their halachic diligence. Who can possibly imagine what reward awaits them in Olam Haba!

This article was originally published in the American edition of Yated Neeman


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