A Question about the ‘Heter Mechira’
"Rabbi, thanks to your article on the ‘heter mechira’ (a halachic mechanism whereby agricultural lands in Israel are sold to non-Jews, allowing the lands to be cultivated and vegetables grown during the Sabbatical year), I realized for the first time just how firmly it is based in Jewish law. Previously, I had been influenced by the argument of the Haredim who belittled (to put it mildly) rabbis who accept theheter mechira. However, I still have a question: If it is forbidden to sell land to non-Jews in Eretz Yisrael, as it is written: "Lo-techannem", or in English "nor show mercy to them", which may be rendered "Do not give them a resting place in the land", how can the land be sold to in order to preempt shmitta (the Sabbatical year)?"
The Prohibition of "Lo- techannem"
First, let us clarify the prohibition. Concerning the inhabitants of Canaan, the Torah states "ve’lo techannem"(Deuteronomy 7:2), and our Sages explained that this command includes three prohibitions: "lo-techannem" – 1) ‘Do not give them a resting place in the land’, 2) ‘Do not be gracious with them’, and 3) ‘Do not give them a free gift’ (Avoda Zara 20a).
Our Sages explained the prohibition ‘do not be gracious with them’ as meaning not to praise them, so that the Jewish nation would not learn to walk in their immoral ways. The prohibition ‘do not give them a free gift’ is so as not to strengthen them in their deeds, and in their control of the land.
The prohibition of selling them land in Eretz Yisrael is so they do not strengthen their foothold in the country, as Rambam determined: "It is forbidden to sell them homes and fields in Eretz Yisrael ... Why is it forbidden to sell them land or anything attached to the land? Because it is stated in Deuteronomy 7:2: "Do not be gracious with them", which can also be interpreted: "Do not give them a resting place in the land." As long as they do not have a resting place in the land, their stay will be a temporary one" (Hilchot Avoda Zara 10:1-4).
It follows then that the prohibition of selling land in Eretz Yisraelto non-Jews is so as not to strengthen their hold on the country, and not to learn from their bad deeds. Consequently, all of these prohibitions are permitted in the case of a ‘ger toshav’ (resident alien) – i.e., a non-Jew who accepted upon himself the Seven Noahide commandments before a ‘Bet Din’ (a Jewish law court), out of belief in Hashem the God of Israel, and by doing so also demonstrates he believes that God promised the Land of Israel to the Jewish Nation. However, at the present time when the laws of Yovel (the Jubilee year) are not observed, according to the Rambam and most poskim (Jewish law arbiters) gerim toshavim cannot be accepted, but only a ger tzeddek (convert) who becomes a full Jew (Rambam, ibid., 10:6). Although, in the opinion of Ra'avad, even today, selling land to a non-Jew who in practice acts similarly to a ger toshav, is permitted.
All these matters come to light and are clarified from the verses of the Torah in which the prohibition "lo-techannem" appears. As it is written: "When God your Lord brings you to the land you are entering, so that you can occupy it, He will uproot many nations before you – the Hittites, Girgashites, Amorites, Canaanites, Perizites, Hivites and Jebusites – seven nations more numerous and powerful than you are. When God your Lord places them at your disposal and you defeat them, you must utterly destroy them, not making any treaty with them or giving them any consideration. Do not intermarry with them. Do not give your daughters to their sons, and do not take their daughters for your sons. [If you do], they will lead your children away from Me, causing them to worship other gods. God will then display His anger against you, and you will quickly be destroyed... You are a nation consecrated to God your Lord. God your Lord chose you to be His special people among all the nations on the face of the earth"(Deuteronomy 7:1).
In the ‘Heter Mechira’ there is No Question of "Lo-techannem"
Thus, there is absolutely no prohibition to sell fields to a non-Jew for a year or two, seeing as the purpose of the prohibition is to prevent non-Jews who are not gerim toshavim from establishing permanent residence in the country, and in this sale of the land there is no concern, because it is for a limited time. And even for the limited period of time of the sale, the non-Jew does not actually intend to inherit the field; on the contrary – the sole purpose of the non-Jewish purchaser is to help strengthen Jewish life in Eretz Yisrael.
And thus wrote Rabbi Eliyahu-David Rabinovitz Teomim (also known by the acronym of his name, "Aderet"), that he could not at all understand the claim of those who disagreed with the ‘heter mechira’, for what is the problem with a sale "for a few years, that will certainly return to us afterwards, to which ‘lo-techannem’ seemingly does not apply at all. For the very essence of the prohibition is obviously for us to have a foothold in the Holy Land and not them, and if we are overly machmir(stringent), it will be impossible, God forbid, for us to do so"(appears at the end of "Shabbat Ha’aretz" by Rabbi Kook). And thus wrote ‘Shemen HaMor’, Y.D. 4; Yeshu’ote Malko, Y.D. 55:59; Avnei Nezer, Y.D. 458; Rabbi Frank (Har Tzvi, Zera’im, 2:47).
There is No Prohibition of "Lo-Techannem" in a Limited Sale
Furthermore, even if the sale was unessential for the strengthening of yishuv ha’aretz (settling the Land of Israel), a number of poskim have written that the prohibition is transgressed only when the sale is permanent, or at least when the non-Jew intends to operate as the owner for a certain amount of time. But in this case, when it is a short-term sale and the non-Jew has no intention of acting as the owner, there is no prohibition of "lo-techannem". This is what the ‘Sefer HaChinuch’ wrote in Mitzvah 339, in the name of the Ramban.
Fields should be Sold Temporarily Precisely because of "Lo-techannem"
It turns out, therefore, that the exact opposite is true: Precisely because of the mitzvah "lo techannem" we should sell the fields to a non-Jew in the shmitta year, to enable the Jews returning from Exile to the Eretz Yisrael to be strong in their land, and not allow foreigners to get a foothold on the ground by exploiting Am Yisrael’s not working the fields in the Sabbatical year.
Precisely so we can properly keep the mitzvoth of shmittaaccording to the Torah we must make use, in the meantime, of the ‘heter mechira’. This is because the Torah mitzvah of shmittaapplies only when all Jews reside in Israel, every tribe in its place. In order for us to continue strengthening ourselves inEretz Yisrael against our enemies, and so that all the Jews living in the Diaspora can gather here and keep hold of the land, we must be as lenient as possible with regard to the farmers, so they can occupy as many fields and plant as many orchards as possible, for all the Jews who will be immigrating to Israel.
Other explanations have been proposed in regards to this issue as well, for example, that the prohibition is specifically directed towards idol worshipers; or that there is no prohibition when a non-Jew, in any case, already owns land in the country; or that in a sha’at dachak (time of distress) and for the sake of a Jew, it is permitted. However, despite the fact that the poskim and our teacher and guide Rabbi Kook delved into these theories at length out of their love for Torah learning and in-depth study, nevertheless, these explanations are marginal. The main reason for the ‘heter’ is as previously explained, that when the sale is for a short time, and there is no fear the non-Jew will gain a foothold in the country by doing so – but on the contrary, by selling the land temporarily, Jewish sovereignty over the land will be strengthened, there is no transgression in selling the land, whatsoever. On the contrary – the sale constitutes a mitzvah ofyishuv ha’aretz, because "lo-techannem" is a branch of the general mitzvah of yishuv ha’aretz. And unfortunately, the fact is that most of those who argue against the ‘heter mechira’ because of "lo-techannem" were neglectful of the mitzvoth ofyishuv ha’aretz in the past, and continue to be remiss in this great mitzvah, and there is no need to discuss this painful issue at further.
Rabbi Yehudah HaNasi’s Wish to Cancel Shmitta
After the destruction of the Holy Temple, there were years in which the situation of the Jews in Israel was unbearable. In addition to the routine hostility of the Romans who ruled the country and imposed high taxes on the Jews, in years of drought or war the Romans often demanded even higher taxes in order to supply their soldiers’ needs. When such times occurred close to the shmitta year, the burden was intolerable. Therefore, Rabbi Yehudah HaNasi (Rebbe) wanted to permit agricultural work in the shmitta year, because seeing as it held the status of a rabbinic mitzvah, the Sages could permit it in a sha’at dachak. But Rabbi Pinchas ben Yair, who was known to be one of the righteous men of the generation, refused to agree, because he believed that it was possible, with difficulty, to subsist without working in the shmitta year, and Rebbe relented (Yerushalmi D'mai 1:3; Taanit 3a).
How Could Rebbe Want to Cancel Shmitta?
Seemingly, one might ask: How could Rebbe think of cancellingshmitta, for indeed, we have a general rule that one Bet Din cannot overrule the decision of another Bet Din unless it is greater in wisdom and numbers, and the Bet Din that determined keeping shmitta was the superior Bet Din of Ezra HaSofer, which indeed, was labeled the "Knesset HaGadola" (the Great Assembly)? Rebbe believed, nevertheless, that since the need for this was urgent, and in any case, many Jews violated the decree and worked in the shmitta year – to the point where our Sages said: "Israel are suspect with regard to the Sabbatical year" (Gittin 54a), consequently, it was possible to cancelshmitta even by a lesser Bet Din. But since he did not receive full consent from the Torah scholars of his generation, Rebbe did not have the power to convene an important Bet Din to cancel the shmitta.
Rebbe’s Attitude towards those Who Worked in the ShmittaYear
Once, a person who worked in his field in the shmitta year was brought before Rebbe to be reprimanded, but Rebbe refrained from reproaching him, saying: ‘What should this poor man do? He acts this way to keep himself alive!" (Yerushalmi, Taanit 3:1). Our Sages further said that fasts and prayers are held in times of drought even when they occur in the shmitta year, ‘for the livelihood of others’. It was asked: Who are these "others" we fast for, so rain should fall? After all, Jews are supposed to stop working their fields in the shmitta year? Some explained that the fast was for the non-Jews who worked during shmitta, for if there was no rain, produce would be more expensive, and Jews would suffer from it as well. Rabbi Zeira reasoned that they fasted for the Jews who were suspected of working in their fields in order to sustain themselves, and it was explained that Rabbi Zeira was in agreement with the opinion of Rebbe, who was lenient in regards to poor people who worked in the shmitta year (Yerushalmi, ibid., according to Korban HaEida, Pnei Moshe, Maran HaRav Kook, and not like Rash Serilio and Gra).
Our Present Situation
Q: If during the times of our Sages, when it was so difficult to keep shmitta, the ‘heter mechira’ was not employed, why do we use it today?
A: Our teacher and guide, Rabbi Avraham Shapira of blessed memory, explained that seeing as the Roman’s who ruled at that time wanted to uproot the Jews from their fields, it was impossible to perform any type of mechira, lest the enemies of Israel used the opportunity to dispossess the seller from his land.
In any event, there is no room for comparison of our times to those of the era immediately following the destruction of the Second Temple, because in that period they were obligated to keep shmitta m’divrei Chachamim (rabbinic ordinance) according to all halachic opinions, and this was exactly what Rebbe tried to cancel. However, one hundred and fifty years after Rebbe’s time, a Bet Din authorized to sanctify the new months and count the Yovel (Jubilee year) was cancelled, and since then in the opinion of several Rishonim, there is no obligation to keepshmitta at all. Additionally, a safek (doubt) arose as to when the Sabbatical year actually falls, and there are three different opinions among the Rishonim. Thus, even without the mechira, it is possible to be lenient in a sha’at dachak to work in the shmittayear – all the more so, in conjunction with the ‘heter mechira’.
This article appears in the "Besheva’ newspaper, and was translated from Hebrew. Other articles by Rabbi Melamed can be found at: http://en.yhb.org.il/