The Haredi Boycott of Heter Mechira Fruits is Unsustainable, Part 2

The only logical explanation for the fierceness of Charedi opposition to the heter mechira is that they associate it with Zionism,

Last week I wrote about the history of the heter mechira implemented by the Gedolei Yisrael. I also mentioned that from the beginning of the second generation of renewed settlement in Eretz Yisrael, the defining characteristic of the opponents to the heter was their opposition in one way or another to the new settlements, Yishuv HaChadash, and their emphatic disapproval of the Zionist movement which, in the meantime, had been founded in 5657 (1897) by leaders and activists who were predominantly non-observant.

Without such an explanation it is difficult to understand the reason for their fierce opposition to the heter, since halakhically it is extremely well-founded – much more so than similar heters which all observant Jews rely upon.

In the opinion of an important group of eminent Rishonim (among them Ra’za, Raavad, Nimukei Yosef,Meiri, and others), there is no obligation to keep shmitta in our times. And even according to those poskim (Jewish law arbiters) who do believe shmitta is obligatory, there is agreement  that the obligation is merely of rabbinic status (except for a few Achronim, whose reasoning is problematic).

In addition to this, there is a genuine doubt as to when shmitta actually occurs: 

According to the opinions of Rashi, Rosh, and Tur, the Sabbatical year was in 5774 (2014);

 according to Raavad it was in 5772 (2012); 

and according to our custom, which follows the opinion of the Geonim – 5775 (2015). 

This safek (doubt) is so significant that Mahari Engel wrote that because of it, shmitta could have been cancelled entirely, because each possible year could be annulled by the two additional possibilities (Otzarot Yosef, Shevi’it, pg.96).

Indeed, when analyzing the heter mechira, it actually tends to be in the category of a chumra (an obligation that exceeds the bare requirement of halakha) compared to what is customary in similar cases of sha’at dachak (times of distress).

The only explanation for the fierce Haredi opposition to the heter is that the machloket (controversy) against the Zionist movement ‘kilkala et shurat ha’din’ (defied the rules of proper debate), to the point where they ignored all the substantiated sources for the heter, while mustering all the possible chumra arguments.

The Heter in the Third Generation

In the third generation of the new settlement in Eretz Yisrael, the Chief Rabbis, Rabbi Herzog and the Rishon L’Tzion Rabbi Uziel, along with the Chief Rabbi of Jerusalem, Rabbi Frank, and most of the city and community rabbis in the country, implemented the heter mechira.

In contrast, the opponents were led by the Chazon Ish, who immigrated to Israel in the year 5693 (1933). It should be noted that unlike the rest of the opponents of the heter, the Chazon Ish demonstrated responsibility and concern for the religious farmers, went out of his way to guide them, and even introduced extreme kulot (leniencies) in the laws of shmitta so they could manage without the heter mechira. However, like the other machmirim, he was opposed the Zionist movement as well. It must also be pointed out that in his opposition to the heter, regrettably, he escalated the dispute to a grave level.

The Argument about the Validity of the Heter from the Prohibition of “Lo Techanem”

One of the central claims of the Chazon Ish is that, since it is forbidden to sell land to a non-Jew in Eretz Yisrael because of the prohibition “lo techanem” (‘do not give them any consideration’, which may be rendered ‘do not give them a resting place in the land’), when farmers appoint rabbis as agents to sell the land, the rabbis become ‘shlichim l’davar aveira’ (agents for a prohibition), and as such, their actions are invalid because their shlichut is void, for we have a principle that "ain shaliach l’davar aveira” (there is no agency for prohibitions) (Chazon Ish, Shevi’it 24:4).

Naturally, the rabbis in favor of the heter had a convincing answer, for the prohibition of "lo techanem" is designed to strengthen Israel’s presence in the land, as the verse says: "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…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”(Deuteronomy 7:1-2). 

If so, when selling the land is for a limited time and intended to strengthen Jewish settlement in Eretz Yisrael, there is absolutely no prohibition (Yeshu’ot Malko, Y.D. 55; Aderet; Avnei Nezer, Y.D. 458).

Moreover, even if the mechira was unnecessary for strengthening the settlement of the land, the Rishonim explained that l’chatchila (from the outset), the prohibition of "lo techanem" only applies to a permanent sale, or at the very least when the non-Jew intends to act as the ba’al ha’bayit (owner) for a certain amount of time; but when the sale is for a limited amount of time and the non-Jew has no intention of acting as the ba’al ha’bayit, there is no prohibition of "lo techanem" (Ramban, and Chinuch 339, and so can be understood from the Rambam, Laws of Avoda Zara, 10:3-4).

The Challenging Argument against the Chazon Ish

Thus, in the opinion of the Gedolei poskim (eminent Jewish law arbiters), the rabbis conducting the mechira are fulfilling a mitzvah by assisting farmers settling the land. This being the case, even those who disagree with them cannot claim they are sinners – just as Sephardic Jews who follow the rulings of the Shulchan Aruch and refrain from warming-up soup on Shabbat cannot claim that Yemenite Jews who follow the Rambam and do warm-up soup, are sinners.

The claim of the Chazon Ish, therefore, is a huge insult to the Gedolei rabbanim (eminent rabbis) of Eretz Yisrael. Not only did he disagree with them – though they were the local rabbinic authorities and greater than him in wisdom, public responsibility, and understanding of the situation – he went even further, claiming that their opinion counts for nothing, and anyone following them was considered as having sinned.

The Harsh Consequences

Unfortunately, as a result of such severe and harsh positions against the Gedolei rabbanim, rabbis from the Charedi community have been afraid to clarify major issues appropriately for three generations. They fear that if they express an opinion that does not comply with the machmirim and the fanatics who support them, all of their opinions will be disqualified, and they will be denunciated and driven out of the Charedi camp, as instigators and accomplices to sinful acts.

In this way, Charedi society has deviated from the path of Torah in a number of issues, to the point where many of them have become used to degrading Gedolei rabbanim, such as Maran HaRav Kook and his students, despite the fact that in private, many of their Gedolei rabbanim are opposed to it.

In a similar fashion, many of them have done away with the mitzvah of yishuv ha’aretz (settling the Land),  which our Sages said is equal to all the mitzvot, and many of them dare to publicly deny the great mitzvah the soldiers fulfill by defending the people and the country. 

They have even invented new prohibitions against secular studies and Sherut Leumi (national service), and various other chumrot deviating from the letter of Jewish law.  Regarding all of these issues there are several Charedi rabbis who oppose in private, but they do not clarify their views openly due to the risk of being attacked by the ba’alei machloket (‘masters of dissension’).

Limud Zechut

Nevertheless, with regard to the Chazon Ish, there is room for a bit of limud zechut (benefit of the doubt), for he was extremely tenacious in nature, and everything he derived from his studies he wrote, paying no heed to those greater than himself. 

Additionally, the Chazon Ish displayed particular honor to Rav Kook, by addressing him as "his honor, Maran, shlita".

A similar type of limud zechut can be made for the Ridbaz, one of the fiercest opponents of the heter, who was fervent and impassioned by nature, and compelled by the Torah that boiled within him, and often expressed regret that he had humiliated Rav Kook. For example, when a certain rabbi began considering himself to be the Rabbi of Jaffa, while undermining the authority Rav Kook, the Ridbaz wrote that it was an act of villainy, "because it is ludicrous to think that a wingless fly can wage war against the Great Eagle, whose name is famous in the entire world..."

However, it is difficult to give benefit of the doubt to all those Charedi rabbis who are of equable character, but nevertheless negated the opinion of the Gedolei rabbanim entirely. And certainly, limud zechut cannot be given to those who went even further, and added obscenities and humiliated the rabbis in favor of the heter, who were greater Torah scholars and more righteous than they were.

Those Who Boycott Heter Fruits

The continuation of their sin is expressed in their boycott the fruits grown under the framework of the heter mechira. For in addition to their position being based on the sin of contempt for Torah scholars of the most severe level, it also runs contrary to the fundamental rules of halakha, for as we know, a dispute exists whether it is permissible to eat fruits that were grown and saved in a prohibited manner in the shmitta year. 

According to most poskim, fruits grown by means of work prohibited in the shmitta year are permitted to be eaten (R”Sh, Ramban, Rashba). The same holds true for shmitta fruits that were saved in a prohibited manner and not made hefker (abandoned) – according to most poskim, they are permitted to be eaten (Rambam). 

And although there are poskim who disagree and prohibit the fruit, since the opinion of the majority of poskim is to be maykel (lenient), and additionally, shmitta in our times is of rabbinic status – the halakha goes according to the lenient opinion, kal v’chomer (all the more so) when there are opinions that there is no obligation at all to keep shmitta nowadays, and there is also a doubt about when the shmitta year actually occurs.

Thus, the machmirim pasken contrary to the rules of halakha, kal v’chomer when the farmers are not working in a prohibited manner, but rather, according to the rulings of the leading rabbis; therefore there is no room whatsoever to claim that the fruits are forbidden because they were grown b’issur (in a prohibited manner).

Crops of the Field

Indeed, some poskim argue that concerning crops grown in the field there is a special prohibition, because our Sages decreed that sifichim (grasses and vegetables that grew on their own accord in the Sabbatical year), are forbidden to be eaten, kal v’chomer is it forbidden to eat vegetables that were grown b’issur.  

All this would be true if the farmers planted the seeds without a heter, but since they planted the seeds according to the instruction of rabbis, there is no prohibition to eat the vegetables. And even those who disagree with the heter must concur with this, since the entire gezeira (decree) of sifichim is a rabbinic prohibition in order to prevent an issur, and therefore, when farmers act according to the directives of rabbis - there is no room to prohibit the crops.

Other Claims

Some argue that just as it is forbidden to buy fruit from those who are suspected of working in the Sabbatical year, in order not to l’sayea l’dvar aveira (assist a transgression), it is likewise forbidden to buy fruits grown under the framework of the heter mechira. 

However, since the farmers work according to a heter of the rabbis, there is no transgression in their actions whatsoever. And those who claim it is forbidden to assist them completely annul the words of the rabbis who permit it, and transgress the severe prohibition of bizuy Talmedei Chachamim (contempt of Torah scholars), and asi’at machloket (causing a dispute).

The Sin of the Boycotters

Thus, those who believe that it is forbidden to eat fruits grown in the framework of the heter mechira, lump one sevara (speculation) onto another l’chumra (to be stringent), in contradiction to the rules of halakha.

 In addition, they undermine the honor of the Gedolei Yisrael who implemented the heter in accordance with the opinion of the majority of poskim, so as to assist the holy Jews returning to their Land.

This argument is not directed towards those who have studied the issue and concluded that it was inappropriate to employ the heter mechira, and therefore, prefer avoiding eating fruits grown under the heter – on the condition they do so as a personal minhag chassidut (a desire to fulfill the mitzvah according to all opinions),

 but instruct the public at large that according to the letter of the law, it is permitted to eat fruits grown under the heter (as explained in Ma’adenei Eretz Shevi’it, 159:2).

This argument is directed against those who claim that heter fruits are entirely forbidden to be eaten, and that a person should not eat at the home of someone who relies on the heter, nor should he trust hechsher’s that rely on the heter mechira, and should even boycott public or family events because of this. 

Such people transgress the sin of bizuy Gedolei Yisrael (contempt for eminent Torah scholars), and raise their hand against the sanctity of Klal Yisrael and Eretz Yisrael, and anyone who lends a hand to this boycott, is partner to their sin.

This article appears in the ‘Besheva’ newspaper, and was translated from Hebrew.

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.