Hetter Mechira, Otzar Bet Din, & Palestinian Produce: How can we in the Diaspora participate in Shemitta?

     We have just begun the year 5775, which is observed as a Sabbatical year (Shemitta) in the Land of Israel. As, unfortunately, we have chosen to live outside Eretz Yisrael (EY) for now, the impact of the Shemitta year is not as strongly felt here as it is there. Nevertheless, given that many of us plan to visit EY, and Baruch Hashem have the privilege to purchase products from EY, I decided to write this short essay, with the following objectives:

• To underscore that, in general, we should have a positive attitude towards purchasing products from Israel, and not fear that we are taking on unnecessary Halachic problems when encountering them.

• To understand what the three basic Halachic approaches to observing Shemitta are.

• To raise awareness of how Shemitta affects us outside EY.

“Problems” with Israeli produce

      When I lived on the West Coast I often supervised Kashrut in food plants. I represented the Orthodox Union (OU), among other agencies, and would follow their RFR (Rabbinic Field Representative) procedures, which works with a system for categorizing various ingredients based on their sensitivity from a kashrut perspective. The system was (more or less) as follows: 
“1” – Generically kosher from any source (flour, salt etc.); 
“2” – Kosher from a particular supplier even without a hechsher; 
“3” – from any source with reliable hechsher; 
“4” - requires particular source and hechsher and special rabbinic signature ; 
“5” - hechsher includes certification of the container it was shipped in (e.g. oil) 

and – here is the kicker – 

“6” – Generically Kosher from anywhere except Israel!! Go explain that one to your typical non-Jewish plant owner. . .

     Of course we understand this classification; given that there are issues such as Maaser, Terumah, Orlah and Shemitta associated with Israeli produce, it is often simpler to just avoid it. While this might be an acceptable approach regarding large non-Jewish factories, I believe that it is a reprehensible approach for a proud Jew anywhere in the world. Using Israeli produce has at least three major benefits: (1) it gives us the opportunity, as well, to participate in the Mitzvos Ha'Tluyos  B'Aretz (MHB) -- (Mitzvot that depend on the Land of Israel), (2) we can support the Israeli economy and our fellow Jews in an important manner, (3) we can act in a way counter to the notorious BDS movement that is trying to isolate Israel politically and economically. (Besides, the produce is delicious!) All that is needed is some simple basic education in the few added factors that we need to be aware of, and we can gain much more than just physical nutrition when eating our Jaffa oranges.

     In the space of this article, I cannot address how all of the other MHB affect us outside EY, I will limit my discussion only to Shemitta. I hope to follow up in another article about the others.

Three Approaches to Practical Observance of Shemitta

      Background - I begin with a VERY abbreviated background, as the laws are quite voluminous. Shemitta, the Sabbatical year, is an especially holy time. The Torah refers to it as “Shabbat HaAretz” (Vayikra 26:6), the Shabbos of the Land. Just as we refrain from altering the state of anything on Shabbos to remind ourselves that Hashem owns the world, and not us; so too Shemitta reminds us that EY in particular is owned by Hashem, and not us. As such, broadly speaking, all acts that have the effect of growing produce or improving the land are prohibited during the Shemitta year. The fruits or vegetables that are produced in violation of these laws are prohibited to use as well. The farmer is not to assert any ownership over any produce that grows; the fruits are considered ownerless (הפקר). It is forbidden to engage in any commercial activity with this produce. Moreover, any fruit that grows on Jewish owned land has kedushas sheviis, (Sabbatical sanctity) and there is a special positive Mitzvah to eat that fruit. A the same time, there are special rules as to how they may be prepared or eaten, how to dispose of leftovers, and – an important rule for us – that they may not be taken out of EY.

As the majority of Poskim hold that Shemitta today is only מדרבנן (Rabbinic level law) [more on that below] two important leniencies exist: (1) It is permitted to engage in those activities that are not intended to grow crops, but rather to prevent spoilage of either existent crops or of the lands, and (2) Although מדאורייתא (on a Torah level) it is permissible to eat grains and vegetables that grow spontaneously, referred to as ספיחין, already in Talmudic times, there were unscrupulous people who would violate the Shemitta laws and engage in commerce with vegetables and grains that they falsely claimed had grown spontaneously during Shemitta. As a result, the Sages decreed that ספיחין were forbidden. However, because Shemitta is מדרבנן today, we may eat vegetables and grains that grow during Shemitta as long as they were planted before Shemitta.

Again, there is MUCH more to know about the Laws of Shemitta, but this should suffice as background for the remainder of this essay. 

Practical Problems

A good case can be made for the proposition that Shemitta is the mitzvah that requires more sacrifice (מסירות נפש) than any other mitzvah. It requires a farmer, once every seven years, to completely cease his commercial activities, allow anyone who wishes to enter his field and eat anything that grows while relying on the Almighty to provide for not only the farmers and their families, but for the entire economy who depend on the agrarian sector to supply food for an entire year. The Torah itself raises this surprising request: “And if you should say, "What will we eat in the seventh year? We will not sow, and we will not gather in our produce!" [Know then, that] I will command My blessing for you in the sixth year, and it will yield produce for three years. And you will sow in the eighth year, while [still] eating from the old crops until the ninth year; until the arrival of its crop, you will eat the old [crop].” (Vayikra 25:20-22) This promise is fascinating and inspiring!

Indeed, some moshavim that have completely kept Shemitta (Moshav Komemiyus is often cited) claim to have, in fact, experienced the Biblically promised bumper crop during the sixth year of every Shemitta cycle. Furthermore, there are reports of miraculous events surrounding the fields of those who meticulously keep Shemitta, as reported in the literature produced by Keren Hashviis, an organization that raises major sums to support those farmers who keep Shemitta scrupulously, and the many scholars that educate the public about the importance of Shemitta. Examples are here and here and here .

It is thus the responsibility of the Chief Rabbinate to attempt to mitigate commerce in forbidden fruit – both of the producers and consumers – as much as possible. 

Nevertheless, several problems remain. First of all, notwithstanding reports of bumper crops in Komemiyus and other places, the majority of the agricultural sector of the State of Israel as it exists in the present reality – with most kibbutzim and moshavim being non-religious – is not willing to fully abide by the Shemitta laws.It is thus the responsibility of the Chief Rabbinate to attempt to mitigate commerce in forbidden fruit – both of the producers and consumers – as much as possible.   Furthermore, since the urban majority of the population is unable (in a practicle manner) to access the fields for the free produce; and given that most people – including most religious people – are unwilling to live without their fruits and veggies due to the farmers observing Shemitta; coupled with the fact that export of produce a very major part of the national economy and the very real danger exists that – if Israeli producers do not supply their customers for a year – this important part of the economy will suffer crippling and long lasting losses; in addition to yet other important considerations; it is understandable that not everyone is willing to have the strength of faith to scrupulously adhere to a strict approach towards Shemitta. As a result, three differing approaches are followed, each with its pluses and minuses.

Three Approaches 

1) Hetter Mechira (HM) – Sale of the Land of Israel

     A great deal has been written about HM, as it is one of the great Halachic controversies of the past century. Conceived of by Rav Yitzchak Elchonon Spektor and Rav Avraham Y Kook זצ״ל around the turn of the previous century, in response to the very real PN possibility of mass starvation and irreparable damage to the nascent agricultural efforts of the Yishuv that had been implemented with so much blood sweat and tears; and given that only a limited amount of land was owned by Jews in those years; and given that the whole institution of Shemitta is only מדרבנן (of Rabbinic level) in our time, those great Sages came up with an idea similar to the sale of Chometz with which we are all familiar. If a non-Jew owns the Land, than the produce that grows on it does not have kedushas sheviis and is free of many of the Shemitta restrictions.  
     The HM was granted, however, subject to several restrictions. Prominent among them were:

• Only non-Jews may do activities which are Torah level prohibitions; if Jewish labor must be used, in must be done indirectly (גרמא). 
• Part of the field must be left completely fallow as per Shemitta requirements
• Only the minimum of work necessary for this year may be done.
• Most importantly, HM was given as a one-time Hetter, subject to being renewed, based on the פיקוח נפש (PN) threat of mass starvation and severe damage to the economy at that time.

      Since that time, HM has been renewed every seven years, and the Chief Rabbinate of Israel indeed sells all of the Land of Israel belonging to the State (which is virtually all of the land, as most people in Israel do not actually own real estate but rather have a 99 year renewable and transferable lease on “their property”) to a non-Jew, and much of the Israeli economy functions under this rubric.
    There are arguments for and against relying on HM:

 Arguments for HM include:

• There is no other realistic way for the Israeli economy to continue its operations, and one should not rely on miracles.
• The threat of PN is just as severe today, if not more so, now that there are over six million Jews who depend on Israeli agriculture, as opposed to the (perhaps) one hundred thousand at the time of Rav Kook’s Hetter – how will they survive?
• Many of those who do not rely on HM advocate buying produce from Arabs. Do we really want to support our enemies? Has it not been proven in previous years that much of the Arab produce is grown with tainted water and is in fact dangerously unhealthy? Is it not true, in any case, that much of the “Arab produce” is simply Jewish produce that was bought by the Arabs and then marked up to sell back to Jews?

Perhaps the most serious argument against HM, from my perspective, is that it has no chance of being anything other than a complete legal fiction

Arguments against HM include:

• The Israeli economy could survive based on other areas such as Hi-Tech, Tourism, and other exports; Israel is an economic powerhouse today and the PN argument doesn’t wash.
• Generally it is forbidden to sell any part of EY to non-Jews. Obviously, the Gedolim who devised the HM found a loophole around this, but it is an undesirable loophole.
• Many Poskim disagree the entire basis of HM, and say that it does not remove kedushas shviis.
• If HM was kept with the restrictions as noted above then perhaps there would be an argument for it. As it is, however, it is just a piece of paper that is typically not taken seriously, and most in the industry engage in business as usual. (See an interesting interview with the non-Jew who buys the Land.)
• The entire HM relies on the assumption that we only have a Rabbinic מדרבנן level of Shemitta today. Although there is a tremendous amount of discussion of this point amongst the Poskim, one very interesting point is worthy of noting here. A major reason that Shemitta is considered מדרבנן is that we do not have the Jubilee year (יובל ) today. The reason that we do not have יובל is that a majority of the Jewish people does not live in EY. However, that assumption is getting more and more tenuous, as Baruch Hashem we have arrived at a point that almost 50% of the known Jewish world population is currently living in EY. We are probably not quite there yet, but by the time the year 5762 comes seven years hence, we will almost certainly pass that 50 % mark, which (according to many Poskim) will mean that Shemitta will no longer be מדרבנן but in fact a Torah level Halacha, which would make the HM completely untenable.
• Perhaps the most serious argument against HM, from my perspective, is that it has no chance of being anything other than a complete legal fiction. I recall an incisive Dry Bones cartoon from the Jerusalem Post many years ago, which was written in response to a prohibition of cigarette smoking that had been published by the Chief Rabbi of Tel Aviv. 
• In that cartoon the author mused that the Orthodox reaction to the prohibition might be for them to “sell their lungs to a non-Jew, thus . . .”
• Imagine if the Arabs would know that virtually the entire State of Israel is for sale. They have untold billions of dollars; would they not buy it? And more importantly, would we really be willing to sell it? If we would not, is the sale then any more than a sham legal fiction? This is a very strong question – in my view.

Bottom Line: While the original Rabbonim who instituted HM were Gedolim of the highest stature, it is quite questionable whether, or to what extent, one may rely on it today.

2) Purchase of Fruits and Vegetables from Arabs

As mentioned previously, produce that is purchased from non-Jews (which in Israel means primarily produced by so-called Palestinian Arabs) or imported from abroad, does not kedushas sheviis according to most opinions. The Hareidi community primarily relies on this produce as the source of its food supply during Shemitta, except for what is available through Otzar Bais Din (below). While this may solve some Halachic problems, many feel that this is an unacceptable solution.  In addition, the following arguments inhere: 

Arguments for Arab Produce include:

1. provides a simple and straightforward way to acquire fruits an vegetables during Shemitta while avoiding difficult Halachic problems.

Arguments against Arab Produce include:

• I have already listed some general arguments against basing the entire food source on the Arabs, based on their enmity, hygiene, and fraud.
• Doing so avoids the positive commandment to eat Shemitta fruit, which is a privileged opportunity.
• In Jerusalem, where many Haredim buy Arab produce to avoid Shemitta issues, they are relying on the opinion of Rav Yosef Karo זצ״ל, author of the Shulchan Aruch. However, arguably the greatest authority on MHB in modern times – the Chazon Ish זצ״ל – disagrees with this opinion. In fact, in Bnei Brak, which tends to follow the Chazon Ish, this method is not used nearly as much.
• One can debate this, but arguably the land that is “owned” by the Arabs is not their land at all, but in fact it is Jewish land, EY, that was stolen from us. If this is true, than the produce from it has just as much קדושת שביעית as produce that was produced by Israeli farmers.
• This deprives Jewish farmers and suppliers from the ability to earn a living in those ways that are perfectly permissible according to the laws of Shemitta.

Bottom Line: While buying produce without kedushas sheviis seems to get around the problem, it is fraught with other problems and is looked at very negatively by those who wish to support Israeli farmers and the economy.

3) Otzar Bet Din (OBD)

As noted above, it is a Mitzvah to eat the Shemitta fruit, and it is also forbidden for the farmers to engage in commerce, or even for any individual to take of the produce more than they need for their personal use (or that of their animals). Ideally, therefore, all would go down to the fields and pick what they needed and bring it to their homes. However, already in the times of the Second Temple the Tosefta (Sheviis 8:1-4) notes that this was not workable for those who lived in the cities, or even for those who lived rurally, since they were not adjacent to the field that had the particular produce that they wanted on a particular day. 

Our Sages therefore devised a system consisting of an “Otzar” – or Storehouse – administered by Bais Din – the quasi-governmental authority – which assists with this situation while staying firmly within the boundaries of Halacha. 

The basic premise of OBD is that a system is set up whereby farmers, truckers, and store owners act as the Bais Din's agents in harvesting the fruits (or permitted ספיחין), preparing it to come to market (which might include processing in a factory, making it into wine or oil, etc.), transporting it to urban centers, and distributing it to consumers, while avoiding sale through normal means, but rather by using an unusual and more approximate method. As there are significant costs involved in all of these activities, the agents are entitled to be paid a fair market wage for their labor, time, and expenses in doing all of those activities. They are not, however, paid for the produce itself, and thus the produce is substantially less expensive than the usual fair market value paid in stores. The Bais Din determines how much the produce should be “sold” for based on an apportionment of the costs, “hires” the workers, and “pays” them. In our time the primary guide for the OBD system was the sainted Chazon Ish.

We are very fortunate that a very responsible OBD system was set up by MachonHaTorah veHaAretz under the auspices of Rav Zalman Nechemia Goldberg and Rav Yaakov Ariel שליט״א which, in my view, is the optimal system that should be used if at all possible.

  
Arguments for OBD include:

• The consumers get the mitzvah of eating Shemitta fruit, while treating the produce with the special rules that apply to produce with קדושת שביעית.
• It is a way of supporting the Jewish agricultural workers who are observing Shemitta who – while making far less money than in a regular year – have some income to support themselves and their families in a Halachically acceptable way
• Does not have all the problems with Arab grown produce.

Arguments against OBD include:

• OBD can only can supply a limited number of types of produce. Vegetables, in particular, are a problem, as the leniency regarding ספיחין is only for those ספיחין that were planted before Shemitta, and will not be helpful for the ספיחין that would normally be planted next summer.
• The produce has not been as predictably available as people are accustomed to when frequenting their local stores.
• Unfortunately, in the past, there were some incidents where purported OBD systems were not properly supervised and thus ending up violating the Shemitta laws.
• We are very fortunate that a very responsible OBD system was set up by MachonHaTorah veHaAretz under the auspices of Rav Zalman Nechemia Goldberg and Rav Yaakov Ariel שליט״א which, in my view, is the optimal system that should be used if at all possible. The system that they have set up has the following features:
• A properly supervised OBD system, as described above.
• A large amount of produce has been procured from before Shemitta and kept in suitable storage (Otzar) for use during the Shemitta year
• A hydroponic system has been set up to grow some produce during Shemitta, which is permissible as it does not grow in the ground.
• Certain areas in the western Negev and the Arava have been identified that, according to Rav Shlomo Zalman Auerbach זצ״ל do not have the same sanctity of EY and thus one may grow some limited produce there during Shemitta which is not subject to the same rules of קדושת שביעית. The HM is used as a backup (לחומרא) for these areas
• One can find out more about their program at the website http://www.toraland.org.il . This is an extremely worthy organization, and supporting it while here, and using their system while in Israel, is the best way for us to participate in the mitzvah of Shemitta, in my opinion¹.  Another interesting organization which is supported by a very eclectic group of people is שנת שבעת who seem to be doing excellent work in promoting Shemitta even amongst the not very religious.
• Finally, it is important to note that OBD products have קדושת שביעית unless noted otherwise, and this are not to be taken outside of EY. This is particularly relevant with regard to Israeli wine; sometimes OBD wine is exported by those not aware of the Halacha.

Final Thoughts

In summary, although Shemitta is a time that – because of קדושת שביעית – we really may not use Israeli produce outside the Land, there are ways of helping the heroes who are attempting to fulfill the MHB with our support. When it is not Shemitta, we can certainly use Israeli produce outside the Land by becoming familiar with the simple procedures for separating the Tithes (תרומות ומעשרות). We will אי״ה write more about this in a followup article.

I recognize, of course, that the laws of Shemitta and other מצוות התלויות בארץ (MHB) (Mitzvot that are specific to EY) are many and complex and a short essay cannot begin to do them justice. I encourage the reader to use this essay as an incentive to participate in the mitzvah of Shemitta by continuing to learn about it from the voluminous material that has been published and is widely available in books and online.

---------------1 (I note that there are other organizations that also are asking for support, but are not supporting the OBD system, that are less worthy, in my view. One particularly strange organization, IMHO, is The Shmita Association, which advocates purchasing a small piece of land in Israel before Shemitta which will not be worked on, thus giving the owner the status of a Shemitta observer. This reminds me of a certain yeshiva that purchased farmland for its campus, and then put in a claim to the government program that paid farmers to leave their land fallow. Seems to me that this is not what the Almighty had in mind ….