The History of the Heter Mechira

As a result of previous articles on the heter mechira, I received questions and complaints about the dispute over the heter. To answer them collectively, I felt it necessary to relate the history of the heter.

When the Question Arose

During the long years of exile, the Land of Israel remained desolate and the few Jews living there did not engage in agriculture.

The Jews expelled from Spain who began immigrating to Israel five hundred years ago, and also the Hassidim and the Vilna Gaon's disciples who began immigrating two hundred years ago, barely engaged in agriculture.

 It was only about one hundred and forty years ago that Jews began establishing agricultural communities throughout the country. The first settlers were members of the Old Yishuv in Jerusalem who ventured out of the walls of the Old City, and together with new immigrants established small outposts, until in the year 5638 (1877) they established Petah Tikva. In 5642 (1881) the first aliyah of Chovevei Tzion (Lovers of Zion) began, giving rise to the establishment of seven additional moshavot (rural settlements), until the Sabbatical (shmitta)year of 5649 (1889). The settlements were: Rishon Lezion, Zichron Yaakov, Akron (Mazkeret Batya), Nes Ziona, Rosh Pina, Gedera and Yesod Hama’alah.

This was the first time the question of keeping shmitta arose, and the problem was twofold – first, for the farmer’s themselves, and second, for the public in general. The farmers themselves were barely able to exist and required financial support, and keeping shmitta would have caused severe distress, and even starvation.

 As far the public in general was concerned, keeping shmitta would have likely caused the destruction of the moshavot, for even if some of the farmers were able to survive, it was clear that several would not. In addition, many Jews in the Diaspora who considered immigrating to Israel would refrain from making aliyah after hearing about the difficulties of surviving in the shmitta year.

The Rabbis In Favor of the Heter

One of the Torah giants of the generation and a leader of the Chovevei Tzion movement, Rabbi Shmuel Mohilever, together with his European rabbi colleagues, Rabbi Yehoshua of Kutna, and Rabbi Klapfish, the Av Beit Din of Warsaw, discussed the issue and decided to permit farmers to expropriate the fields from the obligation of shmitta by selling them to a non-Jew, in such a way that following the sale, the Jews would be able to work in the fields as employees of the non-Jewish owner. 

The eminent posek (Jewish law arbiter), Rabbi Yitzchak Elchanan Spektor of Kovno also supported the heter. In addition, the Sephardic rabbis in Israel, headed by the Rishon Lezion Rabbi Yaakov Shaul Elishar, supported the heter, relying on the judgments of Sephardic rabbis of previous generations who lived in Eretz Yisrael.

Opponents of the Heter

However, the Ashkenazi rabbis in Jerusalem, led by Rabbi Shmuel Salant and Rabbi Diskin, opposed the heter.

 In their estimation, keeping shmitta would not cause great harm because at any rate, there were some agricultural techniques which claimed that periodically allowing the fields to lie fallow was beneficial. 

Other rabbis believed it was possible to obtain financial support for the settlers who kept shmitta, while others argued that if the farmers were allowed to act leniently in keeping shmitta, they would continue to do so in other halakhic matters. On the contrary, they feared that the heter would actually cause the destruction of the moshavot, citing the Torah’s warning that the punishment for not keeping shmitta was exile. 

There were other important European rabbis, such as the Netziv of Volozhin and Rabbi Soloveitchik, author of “Beit Halevi”, who also opposed the heter.

In general, the dispute hinged on two questions: First, whether the heter mechira was based on the majority of poskim, or the minority. Second, whether the situation was considered a ‘sha’at dachak’ (a time of distress), for indeed, the accepted halakhic rule is that in times of distress, it is possible to rely on a lone opinion, and the more pressing the situation, the more appropriate it is to be lenient.

In Practice, the Heter Mechira was Adopted

In practice, most of the farmers and their supporters felt the need to rely on the heter. Guided by their rabbis from Europe, the farmers approached the Sephardic rabbis in Israel, and they performed the sale of the fields for them. This was also the position of the majority of the leading rabbis.

 Yet, there were still many rabbis in the Diaspora and Jerusalem who opposed the heter, and the fanatics of the generation stood by their side and fought the heter fiercely, and opposed the rabbis who supported it.

Initially, Some Members of Chovevei Tzion Opposed the Heter

It is worth noting that initially, among the rabbis who were machmir (stringent), there were rabbis who felt civic responsibility towards the Yishuv HaChadash (the new community) and the farmers, as did the rabbis of Jerusalem. 

Among the rabbis who were machmir, there were also rabbis who enthusiastically supported the ‘Chovevei Tzion’, like the Netziv of Volozhin and Rabbi Mordechai Gimpel Yaffe. However, from one shmitta year to the next, as it became more evident just how difficult it was for the pioneers to stop working for an entire year, even some of the rabbis who were against the heter changed their opinions. 

One of them was the ‘Aderet’ (Rabbi Eliyahu David Rabinowitz-Teomim) who attested that while in the Diaspora, he was inclined towards the opinion of the machmirim. But after he immigrated to Eretz Yisrael to serve as the Chief Rabbi of Jerusalem, and viewed firsthand the great distress, he changed his mind in support of the heter (Iggrot HaRa'ayah 207). 

Rabbi Diskin from Jerusalem also opposed the heter in the first shmitta year, but in the second Sabbatical year, after recognizing the reality, agreed to the heter in some measure.

The Dispute in the Second Generation

In the year 5664 (1904), Rabbi Kook began serving as rabbi of Jaffa and the moshavot, and in the shmitta year of 5670 (1909), twenty-one years after the Gedolei Ha’dor (eminent Torah scholars) had introduced and implemented the heter, Rabbi Kook continued in their path, also enacting the heter mechira.

Over the years that passed from the beginning of the new settlements, the moshavot grew and expanded. Instead of hundreds of farmers, there were now thousands of families whose livelihood depended on agriculture. 

On the one hand, this fact made the heter even more necessary, but on the other hand, it also caused the opponents to harden their position, seeing as the heter had become more comprehensive and involved much more people and land.

The Spiritual Situation of the Farmers

In the meantime, another significant change occurred: 

Most residents of the first moshavot, members of the First Aliyah, were Torah observant and committed to the rulings of the rabbis. 

However, during the following generation, the rapid secularization process that swept over European Jewish communities was reflected in the composition of the young immigrants who came to Israel as part of the Second Aliyah. Thus, by the year 1909, many of the new farmers were not fully observant. Most of them were willing to cooperate with the rabbis on issues concerning Shabbat, orla and tithes, but it was impossible to persuade them not to work the fields for a full year. 

The distancing of the pioneers from Torah observance caused the opponents of the heter to escalate their struggle against it and the rabbis who supported it, but on the other hand, strengthened the position of those in favor who believed that by means of the heter, the pioneers would continue cooperating with the rabbis in matters of kashrut (Iggrot HaRa’ayah 291, 311).

The Struggle against the Zionist Movement

By that time, the ideological camps were evident. If initially there were rabbis who supported Chovevei Tzion but objected to the heter, in the second generation, all who supported the new settlements also approved of the heter. 

Conversely, the defining characteristic of the opponents was their reservations to one extent or another of the Yishuv HaChadash, and certainly, their disapproval of the Zionist movement which in the meantime had been founded in 5657 (1897), and most of its leaders and activists were non-observant.

Only in this light can the fierce opposition to the heter be understood. Indeed, the first generation of rabbis who opposed the heter were still able to disregard the opinion of the lenient rabbis, seeing as it was a new matter which had not yet been clarified adequately, and the extent of the distress the public would face by keeping shmitta was also unclear.

 But in the second generation, the opponents of the heter were already familiar with all the considerations, and could have known that its foundations were vastly firmer than similar heters, such as eating ‘chadash’ in chutz l’aretz, which is accepted in times of a sha’at dachak. Moreover, the rabbis who supported the heter tended to be more machmir (stringent) and cautious compared to common practice in similar cases of distress.

The only answer is that the machloket (controversy) of most of the opponents of the heter against the Zionist movement kilkala et shurat ha’din (defied the rules of proper debate among Torah scholars), to the point where they ignored all the reliable sources of the heter, while gathering together all the possible chumra arguments.

The Mitzvah of Settling the Land

In other words,

 if one believes there is no point in yishuv ha’aretz without keeping shmitta, and the fulfillment of the mitzvot of yishuv ha’aretz by a person who is not meticulous in mitzvoth is meaningless, it goes without saying there is no need to find a heter to work in the shmitta year.

Yet, the heter is based on the mitzvah of yishuv ha’aretz, which our Sages said is equivalent to all the mitzvot. Not working the fields in the shmitta year was liable to cause severe damage to the settlements, because as it was, the difficulties of immigration and settlement were enormous, and only small numbers of Jews agreed to move to Israel; how much more so would their numbers have decreased if they had to stop working in the shmitta year.

Therefore, the rabbis saw a great need to find a heter in order to expropriate the fields from the obligation of shmitta – which today is d’rabbanan (of rabbinic status) or midat chassidut (a pious and meritorious act), and fulfill the commandment of yishuv ha’aretz, whose obligation is d’oreita (of Biblical status).

 In time, it turned out that the necessity was much graver, because many of the Jews who remained in European exile were murdered by the Nazis or trapped under Communist persecution.

The Controversy

Life was not easy for the rabbis in favor of the heter. They had to withstand harsh attacks and slander from the extremists of the generation. There were even Gedolei Ha’dor who initially opposed the heter, but after hearing the explanations in favor, supported it, but refrained from openly expressing their opinions due to the controversy waged by the opponents of the heter (for example, the eminent posek, the Maharsham).

Rabbi Kook

When the Gedolei Ha’dor instituted the heter in 5649 (1888), 

Rav Kook was only twenty-four years old. In spite of this, many people associate the heter with Rabbi Kook, because he explained its foundations at length in his book 'Shabbat Ha’aretz’ and in numerous responsa and letters, and he also was responsible for its implementation as rabbi of Jaffa and the moshavot in the shmitta years of 5670 (1909) and 5677 (1916) (although he was not in Eretz Yisrael at the time). 

Later on, as Chief Rabbi of Israel, he also implemented the heter in the shmitta years of 5684 (1923) and 5691 (1930).

It is worth noting that by nature, Rav Kook was an extremely pious man who was inclined to enhance and embellish every mitzvah possible, and greatly regretted having been forced to expropriate the mitzvot of shmitta by means of the heter mechira. 

In practice, nevertheless, he determined that it was absolutely impossible to be machmir. And as he wrote, if we are overly machmir (stringent) in this matter beyond what is required, the enormity of the chilul Hashem (desecration of God) and the destruction of the Torah it would cause would be inconceivable, for it would reinforce the heretics who claim that the Torah does not enable the Jewish People to survive in its land, and therefore we must renounce its commandments (Iggrot 291, 311).

With God's help, next week I will write about the harder line the opponents of the heter took, and the serious consequences that still has today.

This article appears in the ‘Besheva’ newspaper, and was translated from Hebrew. Additional articles by Rabbi Melamed can be found at: Yeshivat Har Bracha.