In Eretz Yisroel, this week’s parsha is Behar, whereas in chutz la’aretz it is Emor. Next week, those in Eretz Yisroel will be reading one parsha, Bechukosai, whereas those in chutz la’aretz will be reading double parshios Behar/ Bechukosai. Thus, everyone reads Bamidbar as a "buffer" between the tochacha of Bechukosai and Shavuos, fulfilling (according to Tosafos) a takkanah of Ezra (see Gemara Megillah 31b and Tosafos s.v. Kelalos).
Since the beginning of Behar discusses the important mitzvah of shemittah… Question #1: Shemittah or shevi’is?
"What is the difference between shemittah and shevi’is?" Question #2: Sefichin
"What are sefichin?" Question #3: Heter otzar beisdin
"I consider myself fairly well-educated, which may be a mistake. But I recently heard a term that I never heard before: heter otzar beis din. What does this term mean?" Answer
Since we will all be reading about shemittah either this week or next, it is appropriate to study and/or review a basic glossary of shemittah-related terms.
Among the terms that we will learn are the following:
Otzar beis din
Heter otzar beis din
First, let us discuss the basics: Basic laws of the land
In parshas Behar, the Torah (Vayikra 25:1-7) teaches that every seventh year is shemittah. We are prohibited from plowing, planting or working the land of Eretz Yisroel in any way, and we must leave our land fallow. It is even prohibited to have a gentile work a Jew’s land (Avodah Zarah 15b), just as one may not hire a gentile to do prohibited work on Shabbos. The owner of a field or orchard must treat whatever grows on his land as ownerless, allowing others to enter his field or orchard to pick, without charge, as much as their families can use. The landowner, himself, also may pick as much as his family will eat (see Rambam, Hilchos Shemittah 4:1).
The landowner should make sure that others know that they may help themselves to the produce. Kedushas shevi’is
The Torah declared vehoysa shabbas ha’aretz lochem le’ochlah, "the produce of the shemittah should be used only for food" (Vayikra 25:6), thereby imbuing the fruits and vegetables that grow in shemittah year with special sanctity, called kedushas shevi’is. There are many ramifications of this status. The produce that grows during shemittah year should be used only for consumption and should be eaten (or drunk) only in the usual way. For example, one may not cook foods that are usually eaten raw, nor may one eat raw produce that is usually cooked (Yerushalmi, Shevi’is 8:2; Rambam, Hilchos Shevi’is 5:3). One may not eat raw shemittah potatoes, nor may one cook shemittah cucumbers or oranges. It would certainly be prohibited to use shemittah corn for gasohol or any other form of biofuel.
Contemporary authorities dispute whether one may add shemittah orange or apricot to a recipe for roast or cake. Even though the fruit adds taste to the roast or cake, many poskim prohibit this cooking or baking, since these types of fruit are usually eaten raw (Shu’t Mishpat Cohen #85). Others permit this, if it is a usual way of eating these fruits (Mishpetei Aretz page 172, footnote 10).
Similarly, juicing vegetables and most kinds of fruit is considered "ruining" the shemittah produce and prohibited, although one may press grapes, olives and lemons, since the juice and oil of these fruits is considered superior to the fruit itself. Many contemporary authorities permit pressing oranges and grapefruits, provided one treats the remaining pulp with kedushas shevi’is. Even these authorities prohibit juicing most other fruit, such as apples and pears (Minchas Shelomoh, Shevi’is pg. 185). Food and not feed
One may feed shemittah produce to animals only when it is not fit for human consumption, such as peels and seeds that people do not usually eat (Rambam, Hilchos Shemittah 5:5). Last shemittah, a neighbor of mine, or perhaps his turtle, had a problem: The turtle is fond of lettuce and won’t eat grass. One may feed animals grass that grew during shemittah, but one may not feed them lettuce that grew in Israel during shemittah. However, when the lettuce begins to wilt or becomes soggy, rendering it not usable for human consumption, one may use it for feed. In fact, the reason why many are careful to not dispose of shemittah produce even after it is no longer usable is because it is still usable for animal feed. Jewish consumption
Shemittah produce is meant for Jewish consumption; one may not give or sell kedushas shevi’is produce to a gentile, although one may invite a gentile to join a meal that includes shemittah food (Rambam, Hilchos Shemittah 5:13, as explained by Mahari Korkos). Don’t destroy edibles
One may not actively destroy shemittah produce suitable for human consumption. Therefore, one who has excess shevi’is produce may not dispose of it in the trash, as he would with a surplus of produce not having kedushas shevi’is.
Although some authorities rule that there is a mitzvah to eat shemittah produce, most contend that there is no obligation to eat shemittah food – rather, the Torah permits us to eat it (Chazon Ish, Hilchos Shevi’is 14:10).
Peels that are commonly eaten, such as apple peels, still have kedushas shevi’is and may not simply be disposed of. Instead, we place these peels in a plastic bag and then place the bag in a small bin or box called a pach shevi’is, where it remains until the food is inedible. When it decomposes to this extent, one may dispose of the shemittah produce in the regular garbage.
Why is this true?
Once the shemittah produce can no longer be eaten, it loses its kedushas shevi’is. Although the concept that decay eliminates sanctity seems unusual, this is only because we are unfamiliar with the many mitzvos to which this principle applies. There are several other mitzvos where, in theory, this rule applies – meaning that the items have kedushah that governs how they may be consumed, but once they are no longer edible, this kedushah disappears. The mitzvos to which this rule applies are terumah, challah, bikkurim, revai’i and maaser sheini. However, although the halacha regarding loss of kedusha is relevant to these mitzvos, in practice, we cannot observe this halacha, since these items cannot be consumed by someone tamei (Rambam, Hilchos Terumos Chapter 11; Hilchos Maaser Sheini 3:11). This explains why most people are unfamiliar with the rules of kedushas shevi’is.
When eating shemittah food, one need not be concerned about the remaining bits stuck to a pot or an adult’s plate that one usually washes off; one may wash these pots and plates without concern that one is destroying shemittah produce. However, the larger amounts left behind by children, or leftovers that people might save, should not be disposed of in the garbage, but should be scraped into the pach shevi’is. Issur sechorah – commercial use
One may not harvest the produce of one’s field or tree in order to sell it in commercial quantities or in a business manner (Tosefta, Shevi’is 5:7; Rambam, Hilchos Shemittah 6:1). For example, shemittah produce may not be sold by weight or measure (Mishnah, Shevi’is 8:3), nor sold in a regular store (Yerushalmi, Shevi’is 7:1). Tefisas damim
If one trades or sells shemittah produce, the food or money received in exchange becomes imbued with kedushas shevi’is. This means that the money should be used only to purchase food that will itself now have the laws of shemittah produce, as explained above. The original produce also maintains its kedushas shevi’is (Sukkah 40b). Havla’ah
At this point, we must discuss a very misunderstood concept called havla’ah, which means that one includes the price of one item with another. The Gemara (Sukkah 39a) describes using havla’ah to "purchase" an esrog that has shemittah sanctity, without the money received becoming sanctified with kedushas shevi’is. For example, Reuven wants to buy an esrog from Shimon; however, Shimon does not want the money he receives to have kedushas shevi’is. Can he avoid this from occurring?
Yes, he can and he may. If Shimon sells Reuven two items at the same time, one that has kedushas shevi’is and the other that does not, he should sell him the item that does not have kedushas shevi’is at a high price, and the item that has kedushas shevi’is accompanies it as a gift. Although everyone realizes that this is a means of avoiding imbuing the sales money with kedushas shevi’is, it successfully accomplishes preventing the money from becoming subject to the laws of kedushas shevi’is. Shamur and ne’evad
According to many (and perhaps most) rishonim, if a farmer did not allow people to pick from his fields, the shemittah produce that grew there is called shamur and becomes prohibited (see Ra’avad and Ba’al Hama’or to Sukkah 39a). Similarly, many authorities prohibit consuming produce that was tended in a way that violated the agricultural laws of shemittah (Ramban, Yevamos 122a). This produce is called ne’evad. Many late poskim prohibit using produce that was either shamur or ne’evad. Shemittah exports
The Mishnah (Shevi’is 6:5) prohibits exporting shemittah produce outside Eretz Yisroel. Some recognized authorities specifically permit exporting shemittah wine and esrogim, although the rationales permitting this are beyond the scope of this article (Beis Ridbaz 5:18; Tzitz Hakodesh, Volume 1 #15:4). Sefichin
What are sefichin? Sefichin is a term referring to annual produce that grew during the shemittah year. Min hatorah, produce that grew by itself without anyone working the field during shemittah is permitted to be eaten. Unfortunately, even in the days of Chazal, one could find unscrupulous farmers who would plant grain or vegetables during shemittah year and then market them as produce that grew on its own. So that these farmers not benefit from their sins, Chazal forbade all grains and vegetables, even those that grew on their own -- a prohibition called sefichin. Sefichin are treated as non-kosher food, even requiring one to kasher the equipment that cooked them!
There are several exceptions to this rule. One is that produce of a non-Jew’s field is not prohibited as sefichin. Another exception is that perennials that do not require planting every year are not included in the prohibition of sefichin. Although trees and other perennials definitely thrive when pruned and cared for, most will produce fruit even if left unattended for a year, and the farmer has less incentive to violate shemittah by tending his trees.
Thus, tree fruits, tree nuts, and bananas do not involve the prohibition of sefichin. (If they grew in a field whose owner was not observing shemittah, they might involve the prohibition of shamur.) Biur shevi’is
At this point in our discussion, we need to explain the concept of biur shevi’is. The word biur literally means elimination, as in biur chometz, which refers to the eradication of chometz, performed each year before Pesach. One of the laws that applies to shemittah produce is that once a specific species is no longer available in the field, one can no longer keep shemittah produce from that species in one's possession. At this point, one must perform a procedure called biur shevi’is. Although there is a dispute among the rishonim as to the exact definition and requirements of biur shevi’is, we rule that it means declaring ownerless (hefker) any shemittah produce in one’s possession (Ramban, Vayikra 25:7; cf. Rashi, Pesachim 52b s.v. mishum and Rambam, Hilchos Shemittah 7:3 for alternative approaches.) For example, let us say that I picked shemittah apricots and canned them as jam. When no more apricots are available in the field, I must take the remaining jam and declare it hefker in the presence of three people (Yerushalmi, Shevi’is 9:5). I may do this in front of three close friends, who will probably not take the jam after my declaration; it is sufficient that they have the right
to take possession. If someone fails to perform biur, the shemittah produce becomes prohibited. Heter mechirah
Probably the most controversial issue in contemporary shemittah observance is that of heter mechirah, a dispute that goes back to the earliest days of the modern settlement of Israel, over 130 years ago. Heter mechirah means that the farmer sold his land to a gentile, who is not required to observe shemittah. Since a gentile now owns the land, the gentile may farm the land, sell its produce, and make a profit. The poskim dispute whether a Jew may work land owned by a gentile during shemittah (Tosafos, Gittin 62a s.v. ayn odrin, prohibits; Rashi, Sanhedrin 26a s.v. agiston, permits). Even among those authorities who permit heter mechirah, most do not permit Jews to work their fields. Today, most chareidi authorities will not permit relying on heter mechirah or use of heter mechirah produce.
Some contemporary poskim prohibit the use of fruit from properties that had heter mechirah on the basis that since heter mechirah is invalid, the fruit is considered shamur and therefore forbidden. Other poskim permit the fruit, because they rule that the forbidden working of an orchard or treating it as private property does not prohibit its fruit (see Shu’t Igros Moshe, Orach Chayim 1:186). Thus, even if one does not consider the heter mechirah to be valid, according to many, the fruit is still permitted, but must be treated with kedushas shevi’is. Otzar beis din
What is an otzar beis din? Literally, the words means "a storehouse operated by beis din." Why would a beis din be operating a storehouse? Do they impound so much merchandise while doing litigation? No. Let me explain.
As mentioned above, the owner of an orchard may not harvest his produce for sale, and he must allow individuals to help themselves to what their family may use. But what about people who live far from the orchard? How will they utilize their right to pick shemittah fruit?
Enter the otzar beis din to help! The beis din represents the public interest by hiring people to pick and transport the produce to a distribution center near the consumer. Obviously, no one expects the pickers, sorters, truckers, and other laborers to work as unpaid volunteers; they are also entitled to earn a living. Similarly, the managers who coordinate this project are also entitled to an appropriate wage for their efforts. Furthermore, there is no reason why beis din cannot hire the owner of the orchard to supervise this massive project, paying him a wage appropriate to his significant skills and experience in knowing how to manage this operation. This is all legitimate use of an otzar beis din.
Who pays for otzar beis din services? The otzar beis din divides its costs among the consumers. The charges to the user should reflect the actual expenses incurred in bringing the products to the consumers, and may not include any profit for the finished product (Minchas Shelomoh, Shevi’is 9:8 pg. 250). Thus, otzar beis din products should cost less than regular retail prices for the same items, since there should be no profit margin. (See Yerushalmi, Shevi’is 8:3 that shevi’is produce should be less expensive than regular produce.)
Please note that all the halachos of kedushas shevi’is apply to otzar beis din produce. Also note that acquiring from an otzar beis din is not really "purchasing," since you are not buying the fruit, but receiving a distribution – your payment is exclusively to defray operating costs. Therefore, the money paid for otzar beis din produce does not have kedushas shevi’is, because it is compensation for expenses and not in exchange for the shemittah fruit (Minchas Shelomoh, Shevi’is 9:8 pg. 250).
Produce still in the possession of an otzar beis din at the time of biur is exempt from biur, meaning that there is no requirement to declare it hefker. The reason is that this product is still without an owner – the otzar beis din is a distribution center, not an owner. However, produce originally distributed through an otzar beis din and now in private possession must be declared hefker. Heter otzar beis din
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, violating both the spirit and the halacha of shemittah. If the farmer is operating with a true otzar beis din, he will allow people to enter his field and help themselves to the produce. If he bars people, then he is violating the basic laws of shemittah, and his produce distribution is not according to otzar beis din principles. Similarly, if the field owner treats the produce as completely his own and charges accordingly, this contradicts the meaning of otzar beis din. These cases are disparagingly referred to as heter otzar beis din; meaning they reflect abuse of the concept of otzar beis din. Conclusion
Just as observing the seventh day, Shabbos, demonstrates our belief in the Creator, so, too, observing every seventh year as shemittah demonstrates this faith. For someone living in Eretz Yisroel, observing shemittah properly involves assuming much halachic responsibility and education. For the modern farmer, observing shemittah can, indeed, be true mesiras nefesh, since among the many other concerns that he has, he also risks losing customers who have been purchasing his products for years. For example, a farmer may be selling his crop somewhere in Europe. If he informs his buyer that he cannot produce during shemittah, he risks losing the customer in the future.
Of course, a Jew realizes that Hashem provides parnasah, and that observing a mitzvah will never hurt anyone. An observant farmer obeys the Torah dictates, knowing that Hashem attends to all his needs. Indeed, recent shmittos have each 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 Shiur is published also at Rabbi Kaganof's site