HETER MECHIRAH OR IMPORTED VEGETABLES
WHICH SHOULD ONE CHOOSE?

by
Rabbi Dr. Chaim Simons

chaimsimons@gmail.com

Kiryat Arba

Shemittah year 5768

© Copyright, Chaim Simons, 2008

**********************************************

Introduction

A few weeks before Shavuot 5767, Eliezer Barat, the Managing Director of “Alei Katif” wrote: “Otzar Ha’aretz suggests possible solutions for the supply of fruit and vegetables which are Mehadrin for Shemittah, without having to use non-Jewish produce and without utilising the Heter Mechirah.” (1) About a month and a half later, “Otzar Ha’aretz” modified this position and stated that when non Heter Mechirah vegetables from Jewish sources are finished, “Otzar Ha’aretz” will place “two alternatives before the buyers: imported produce from the Diaspora or Heter Mechirah. The Bet Din of Otzar Ha’aretz, (which is composed of four well-known Rabbis (2)), will not decide on this question but will leave it to the decision of the consumer.” (3) In answer to a question, Rabbi Yehudah Amichai of “Otzar Ha’aretz” answered that “vegetables which are Heter Mechirah will be clearly and prominently labeled.” (4)

In this paper, I, a consumer of “Otzar Ha’aretz” produce will discuss in depth the choice between Heter Mechirah produce and imported produce. The discussion will include the question of whether the Heter Mechirah has, according to the consensus of Rabbinic opinion, any Halachic validity today and, indeed whether it ever had such validity in the past. (It is not the purpose of this paper to enter into the lengthy and complex Halachic arguments for and against the Heter Mechirah.) Furthermore, even according to those who give Heter Mechirah Halachic validity, does it have ideological acceptability? A further question is: can one take seriously the sale of Eretz Yisrael to a non-Jew? According to those who hold that the Heter Mechirah is not Halachically acceptable, what is the status of Heter Mechirah agricultural produce – is it kosher or not, and is there a difference between fruit on the one hand and vegetables on the other? After delving into all these questions, I will attempt to answer the question as to whether to use Heter Mechirah or imported produce.

Early history of Heter Mechirah

In a paper written by Rabbi Kalman Kahana, he summarized the observance of Shemittah throughout the generations until the period of the “First Aliyah.” He wrote, “For thousands of years Jews of Eretz Yisrael kept the Mitzvah of Shemittah with trust in the kindness of the Almighty…. This was even in periods when there were no non-Jewish owned fields in Eretz Yisrael and all the food came from Jewish owned fields and also in periods when it was not easy to import such produce.” (5)

In the 1880s when, what is popularly known today as the “First Aliyah” began, many of the new Jewish immigrants worked in the production and export of wine and citrus fruits. As the Shemittah year 5649 (1888-89) approached, the Rabbis of Jerusalem, Rabbi Yehoshua Yehudah Leib (Maharil) Diskin and Rabbi Shmuel Salant, forbade work on the land during the Shemittah. (6) The men of the “First Aliyah” then began a propaganda campaign in which “they falsely stated in a loud voice that observance of the Shemittah would be life threatening, and as a result of this there were some Rabbinical authorities in the Diaspora, who living far away [from Eretz Yisrael] gave a lenient decision on this matter” (7)

In fact the colonists had a different reason for the non-observance of Shemittah – they were concerned about creating a precedent. Moshe Leib Lielienblum, one of the secular Zionist leaders of the time wrote, “If the colonists stop work for this first Shemittah, it will create a precedent in accordance with those who are strict … and then there will be no future possibility of permitting work during Shemittah … therefore we must from the outset not accept the opinion of those who are strict and not permit any cessation of work.” (8)

Some Rabbis in Eastern Europe were contacted and three of them (9) gave a Heter, for that Shemittah alone, subject to the approval of Rabbi Yitzchak Elchanan Spektor of Kovno, to sell the land to a non-Jew. Rabbi Spektor, gave his agreement in a very guarded manner and stressed that this was valid solely for that Shemittah. (10) However, on this approval, some Rabbis of that generation wrote that the colonists had used “trickery and deceit on the Rabbi [Spektor].” (11) and that “he was not conversant with the situation.” (12)

The Sepharadi authorities in Eretz Yisrael represented by Hacham Yaacov Shaul Elyasher gave their approval. (13) However the Ashkenazi Jerusalem Rabbinate, headed by Rabbi Diskin and Rabbi Salant strongly disagreed and issued a proclamation that “there is no Heter whatsoever to plough, to sow, to reap and to plant whether by themselves [the colonists] or by a non-Jew.” (14) Later a further similar proclamation was issued in Jerusalem by about twenty Rabbis. (15) One of these Rabbis, Rabbi Tuvia Rosenthal, wrote a book in which he clarified the laws of Shemittah. In the introduction to this book he wrote, “It is obvious that had they [the colonists] not found someone to give the Heter [Mechirah], they would have observed the Shemittah in accordance with the Halachah.” (16)

At that period, there were also a number of renowned Rabbis in Europe who came out strongly against this Heter. These included Rabbi Yoseph Dov Soloveichik (the Bet Halevi), Rabbi Naftali Tzvi Yehudah Berlin (the Netziv), Rabbi Shimshon Refoel Hirsch (a leading Rabbi in Germany), Rabbi David Friedman of Karlin (a leading Rabbi in Lithuania), Rabbi Eliezer Gordon (Rosh Yeshivah of Telz), the Admor of Radzin (who is famous for his work on Techelet), Rabbi Yoseph Stern (Av Bet Din of Shavli) and Rabbi Yechiel Michel Epstein (the Aruch Hashulchan). (17) The last named described this Heter as an “insult to our Holy Torah and our Holy Land.” (18) In contrast Rabbi Yoseph Engel (19) and Rabbi Avraham Bornstein of Sochochov (20) came out in favour.

There were some colonists who observed the Shemittah. However it was not easy for them since great pressure was put on them from various sources. One of these sources was the overseers of Baron Edmond Rothschild who was helping to financially support the new settlers. (21) A further source of compulsion was the leaders of “Hovevei Zion” who stopped giving financial support to the Shemittah observers. On this Dr. Leon Pinsker, one of the founders and leaders of “Hovevei Zion” wrote, “I gave an order to stop supporting the community of Gedera if they do not work during Shemittah.” (22) There were even people “who were not ashamed to involve the [Turkish] government in this matter and they went and informed against them [the Shemittah observers] to the authorities saying that the Jews were not working and would thus harm the treasury.” (23) Only a few of the colonists were able to withstand this pressure. (24)

In the year 5664 (1904), Rabbi Avraham Yitzchak Hakohen Kook came on Aliyah and soon after was appointed Rabbi of Jaffa. Whilst he was in Russia, he had opposed this Heter – “my opinion then inclined towards those who oppose this Heter.” (25) Approaching the Shemittah year 5670 (1909-10) a lot of pressure was put on him to give a Heter Mechirah – the pressure was so much that he said that “if a Yeshivah in Jerusalem were to give him… [a stipend] each month he would leave his position [as the Rabbi of Jaffa] because of the Shemittah problem, and go and learn in the Yeshivah.” (26) However, because of the critical economic situation of the colonists, he finally gave a Heter. (27) We can see from his letters that it was given with great reluctance (28) and “my heart aches continually because of this priceless Mitzvah,” (29) He called it a “heter given in strained circumstances” (30) and that it was only a “temporary measure”. (31) However he also wrote, “that anyone who wishes not to work the land at all during the Shemittah year is to be praised.” (32) He also declared that “every Jew who is in a position to observe the Shemittah even in strained circumstances, and in the following year will be able to work his land, and not be forced to abandon it [his land] and depart to the Diaspora, is in duty bound to observe the Shemittah in accordance with the law, and this would be a great merit for the whole Jewish people.” (33)

This Shemittah – 5768

In our generation for every successive Shemittah, fewer Rabbis support the Heter Mechirah. This Shemittah, there were a number of official city Rabbis who refused the give a hechsher to those establishments which utilized the Heter Mechirah. This refusal was made with the consent of the Chief Rabbinate who decided “that each city Rabbi should have the sole right to decide on his city’s policy regarding Shemittah in accordance with his own individual interpretation and opinion on the laws of Shemittah.” (34)

Furthermore, the Chief Rabbinate Council decided “to encourage the observance of Shemittah. In a case where it is possible to decrease the use of the Heter Mechirah, it will be done in accordance with the circumstances…. The need for the use of the Heter by a particular farmer will be investigated." (35) Chief Rabbi Yona Metzger went as far to announce that they planned to discontinue the use of the Heter Mechirah after the current Shemittah. (36)

To combat the situation where the “local Rabbinate was not prepared to allow organizations to purchase Heter Mechirah products,” (37) a group of “Religious Zionist Rabbis” in the organization “Rabbis of Tzohar” “established their own new Kashrut organization.” (38) They brought out an advertisement for “owners of businesses” who “have had difficulties in receiving a Kashrut certificate in the Shemittah year” to apply for their “Teudat Hashgacha” (supervision certificate) (39) and they then started “to distribute them.” (40) (For legal reasons they could not use the term “Teudat Kashrut” and so they had to call it “Teudat Hashgacha.” (41)) A sample of their “Teudat Hashgacha” was reproduced in the Israeli press (42) and also displayed on the Internet (43) and it is headed “The National Supervisory Committee for Shemittah” with the names of the four Rabbis who comprised the Presidium. (44)

However some organizations who market agricultural produce took more decisive action and took the Chief Rabbinate to the Supreme Court claiming “that for many years, the policy was to recognize the Heter Mechirah, and we are thus dealing with a change in policy for a stricter one, which will cause immeasurable damage to agriculture.” (45) In their lengthy ruling written largely by Judge Elyakim Rubinstein who is an observant Jew, the Court ruled that “in any instance where the local Rabbi is not prepared to give a Kashrut certificate based on ‘Heter Mechirah’, the [Chief] Rabbinate must use its powers… and appoint Rabbis who will do this.” (46) (Even though this ruling was based on administrative considerations, it caused strong negative reactions from Knesset members of the ‘Yahadut haTorah” party. (47)) Following this ruling, the Chief Rabbinate authorized five Rabbis to grant such Kashrut certificates. (48)

Are the early rulings on Heter Mechirah relevant today?

There are today some leading Rabbis in Israel who still utilize the Heter Mechirah. It goes without saying that even if one personally disagrees with their ruling, one must not talk disparagingly of these Rabbis and their ruling on this question.

Those supporting the Heter Mechirah today, often adduce support (in particular) from Rabbi Kook’s ruling. However the question is whether Rabbi Kook’s ruling is still relevant today. As we have seen above, nearly one hundred years ago he himself described it as a “temporary measure.”

In a lecture he gave over forty years ago, Rabbi Shlomo Goren said that Rabbi Kook’s ruling no longer applied and any such sale had no validity. (49) At a later date, he published an article in “Hatzofe” reiterating this point. In it he wrote that “after the establishment of the State of Israel, when most of Eretz Yisrael is in Jewish hands, there is no validity to the Heter Mechirah according to the writings of Rabbi Kook himself, (50) or the Heter has been completely weakened and one cannot rely on it, especially as one is speaking of the sale of all Eretz Yisrael to non-Jews in order to nullify its sanctity.” (51)

A similar conclusion, but for economic reasons, was reached by Rabbi Moshe Ushpizai who was Chief Rabbi of Ramat Gan and at a later date, Chairman of the Board of Rabbis of Hapoel Hamizrachi. Over forty years ago he wrote, “Now there has been a great change in the economy of the State of Israel. The economy is increasingly being based on industry and not on agriculture. Industry is taking first place in the country. Even the kibbutz economy is increasingly being based on industry…. We are also, time and time again witnessing a sad phenomenon where excess fruit and vegetables are being thrown on the dung-heap.” He very strongly suggested that the original protagonists, and especially Rabbi Kook, would not agree to the Heter Mechirah today. (52)

This same point was made during the month prior to this Shemittah, when a list of fifteen of the leading Rabbis in Israel, (53) including both Ashkenazi and Sepharadi Rabbis, issued a proclamation regarding this Shemittah. In it they stated, “As is well known, about a hundred years ago, at a time of great necessity and in life threatening situations, there were great Rabbis who permitted as a temporary measure relying on the Heter Mechirah, but it is absolutely clear that even those who then permitted it would not do so today.” (54)

In contrast to this, those who today are in favour of Heter Mechirah try to adduce support by quoting the names of the prominent Rabbis who a century ago gave their consent, but they fail to mention that these Rabbis said that it was only for that particular Shemittah that they gave the Heter. Incidentally, one of the names they mention is Rabbi Yehoshua Yehudah Leib (Maharil) Diskin. But this is inaccurate. Rabbi Diskin was strongly against the Heter Mechirah. What he supported was the one time suggestion by the Rabbi of Jaffa, Rabbi Naftali Herz that for that particular Shemittah (5656 / 1895-96) one could sell the fruit trees and even this had very strict limitations placed on it. (55)

Heter Mechirah viewed ideologically

Is it ideologically right (even according to those who hold that halachically the Heter Mechirah is valid) to sell Eretz Yisrael to non-Jews? The Almighty gave Eretz Yisrael in its entirety only to the Jewish people and now we want to sell it to avoid observing a Mitzvah in the Torah! Just as the Jewish people have been Divinely given the Shabbat, the holy soil of Eretz Yisrael has likewise been given its Shabbat.

Rabbi Ze’ev Vitman, the Chairman of the Shemittah Committee of the Chief Rabbinate, wrote that “Heter Mechirah is based on completely nullifying the Mitzvah of Shemittah” and “thus there are essential and basic differences between Heter Mechirah and other heterim,” such as Mechirat Chametz [sale of Chametz], Heter Iska [method used to avoid infringing the prohibition against taking interest] and Pruzbul [document allowing collection of debts after the end of the Shemittah year]. (56) In a similar vein, Rabbi Moshe Levinger, who (before he re-established Jewish settlement in Hebron) was Rabbi of Kibbutz Lavie, (a kibbutz of the “Kibbutz Hadati”), wrote an article entitled “A proposal to limit the sale [of land] to a non-Jew in the Shemittah year.” In this article he stated that “it is difficult for the populace to take upon themselves the instructions of the Chief Rabbinate who obligate them to observe some of the laws of Shemittah even after the sale. It is indeed found that these instructions are barely implemented, and thus the practice has shown that with the sale of the land based on the Heter Mechirah, one sells the whole of the Shemittah.” (57)

In is written about the “Netziv” “that his entire soul was filled with devotion and immeasurable love for Eretz Yisrael, which was in the process of being resettled, so that every small brick in a [new] building gave him spiritual joy.” In addition to opposing the Heter Mechirah on halachic grounds, he also did so on ideological grounds as he saw this as “a blemish on the holiness and purity of Eretz Yisrael.” (58) He wrote in connection with the Mitzvah of Shemittah, “Eretz Yisrael is different from other countries. Its existence does not rely on natural causes as with other countries, but on Divine providence…. [which includes] the observance of the Shemittah as explained in the Torah.” (59)

Another person to realise the importance of not trying to avoid Shemittah observance was the Director of “Neot Kedumim” [The Biblical Landscape Reserve in Israel], Nogah Hareuveni, who, prior to the last Shemittah (5761), was asked whether he would include Neot Kedumim in the Heter Mechirah. He replied that “Eretz Yisrael is not for sale.” All the activities at that location during the Shemittah year were done in accordance with the Shemittah laws. (60)

How genuine is the Heter Mechirah?

This Shemittah a non-Jew, bought all the Jewish farmland in Eretz Yisrael for seventy billion shekels with a post-dated cheque! (61) Two questions immediately come to mind: The first is: Does this non-Jew have, or is he likely to have, cover for this sum, by the time his cheque is due?! The second is: What if he refuses to sell this land back after the Shemittah year?!

Those who are involved in implementing the Heter Mechirah will obviously argue that these questions do not disqualify the sale. However there are contrary opinions. Rabbi Vitman writes that “I heard from Rabbi Yosef Elyashiv and Rabbi Shlomo Zalman Auerbach that in their opinion the genuineness of the sale is the biggest problem with Heter Mechirah.” (62) Even Rabbi Moshe Levinger, who fully accepts the validity of Heter Mechirah, comments that “one cannot hide from the fact that the populace do not understand and are unable to understand the Heter Mechirah in its present form of selling all the Land of Israel to one Arab.” (63)

The “Minchat Yitzchak” goes further and writes that “the sale has no validity since every one knows that it is not a genuine sale of all the Land to a non-Jew.” (64) Likewise Rabbi Elazar Teitz, the Av Bet Din of Elizabeth, New Jersey, and Rabbi of the Congregation Adath Yeshurun, argues that the sale is not a true one but an “asmachta” namely, a matter agreed to in anticipation of its never being realised, and this renders the sale halachically invalid. (65)

There are those who argue that if Mechirat Chametz is in order, so is Heter Mechirah. However this argument has a serious flaw. If at the end of Pesach, the non-Jew does not want to sell back the Chametz, he pays for it and takes it. (66)The Jew can easily then buy fresh Chametz. This is certainly not the case with all the farmland in Eretz Yisrael!

Abolishing the Heter Mechirah

The question which is asked with increasing frequency with every successive Shemittah is whether the Heter Mechirah should be discontinued?

By actively supporting those who want to use the Heter Mechirah, one is assisting in perpetuating this Heter forever, whilst the intention of its proponents a hundred years ago was that it was to be a temporary measure to be dispensed with as quickly as possible. If those supporting the Heter Mechirah - an ever decreasing minority opinion – were to see that the market for Heter Mechirah products was vanishing, an alternative solution would have to be found.

Such a solution could hopefully be found if the Government of Israel had the serious intention of working as a team together with agriculturists and Rabbis.

The question to be asked is how much it would cost the Israeli economy if the agricultural sector were to cease to do work forbidden during the Shemittah year. A study of this was made by Rabbi Professor Yehudah Levi and Rabbi Dr. Gershon Metzger at the “Jerusalem College of Technology – Machon Lev.” They studied the agricultural situation in Israel and the profitability of agricultural exports, and then concluded that if farmers ceased forbidden work during Shemittah, did not engage in other work and were recompensed for all their losses, spread out over seven years, it would increase the government budget by 50 agorot for every 1,000 shekels annually. (67) The suggested Israeli government total budget for 2008 is just over three hundred billion shekels, (68) thus making the annual cost of keeping Shemittah, about 150 million shekels annually.

One could mention here, that the Finance Ministry announced that there was a budget surplus during the first eleven months of 2007 of 7.7 billion shekels. (69) This could easily pay off the entire cost of observing the Shemittah 5768 (2007-2008).

The study by “Machon Lev” goes on to propose advanced professional courses for agriculturists during the Shemittah year in which the participants would learn about new developments in the agricultural field. The knowledge gained from these courses would definitely improve the efficiency of the workers in the years following the Shemittah year and thus increase their productivity level and hence their income, and this could well offset losses incurred as a result of observing the Shemittah year. (70)

Furthermore, new agricultural techniques could be utilized to assist with the observance of Shemittah. (71) To accomplish this, an infrastructure would be built up with a one time initial outlay. This infrastructure would also assist agriculture in the non-Shemittah years. The infrastructure would consist of extensive facilities for keeping vegetables in cold storage, building hothouses for growing vegetables detached from the soil and developing land in the southern Arava part of Israel (where the laws of Shemittah do not apply) for massive agriculture. In addition there could be large scale planting of vegetables before Rosh Hashanah of a Shemittah year. Land could also be rented in Jordan, (as is already being done this Shemittah), and this would also give employment to Jewish agronomists. (72) The proximity of Jordan would keep transport charges to a minimum. Possibly land in Sinai and Egypt could also be utilized.

Where to shop?

In order to understand where one can shop during the Shemittah period, one needs to understand the various laws concerning different types of agricultural produce. (73)

Things which grow from the ground can broadly speaking be divided into fruit and vegetables. There is a crucial difference between fruit and vegetables regarding the laws as to what may and may not be eaten. Because there were Jews who secretly planted things during the Shemittah year and then claimed that they sprouted by themselves, the Rabbis made a decree that things which had an annual planting – in practice, mainly vegetables – which began to sprout during the Shemittah year in a Jewish owned or Jewish worked field, were classed as “sefichim” and were forbidden to be eaten.

In the case of fruit there is no such prohibition, since fruit trees are not planted annually. However, there is the question of fruit trees which are illegally worked on during Shemittah (ne’evad) and fruit which the owner has not made “ownerless” (shamur) as required. Is it permitted to eat such fruit? This question has been in dispute for many hundreds of years – some permitting whilst others forbid eating “shamur v’ne’evad”. Today opinions are still divided. The Eda Charedit of Jerusalem states, quoting the opinions of Rabbi Chaim Berlin and the Ridbaz, that it is forbidden, adding that “this has been the accepted practice of all the Batei Din of the different communities,” (74) whereas the Chazon Ish (75) and Rabbi Shlomo Zalman Auerbach (76) permit “shamur v’ne’evad” produce, the former b’dieved [post facto].

This question – where to shop – was asked during the previous Shemittah (5761 / 2000-01) and was answered by Rabbi Shlomo Aviner, the head of the Ateret Kohanim Yeshiva and Rabbi of Bet El. In his answer he comes out strongly in favour of buying Heter Mechirah produce from Jews. “If someone buys from Arabs and financially hurts Jewish agriculturalists can this be called a stringency?! On the contrary. It is a Mitzvah to buy from Jews …. Is destroying Jewish agriculture a stringency?! Is strengthening the hold of Arabs on our Holy Land a stringency?! On the contrary. It is more stringent to buy from Jews relying on the Heter Mechirah.” (77)

These comments came under very strong criticism from the Av Bet Din, Rabbi Teitz, who commented that Rabbi Aviner had left the realms of “halachic analysis” and was utilising “arguments based on rhetoric and emotion.” (78) Rabbi Teitz also pointed out that most of the profit from Arab agricultural produce does not go to the Arab farmer but to those who handle it from the farm to the consumer. All these middle men are Jewish and buying Arab produce will thus add to the Jewish economy. (79)

Rabbi Mordechai Eliahu, a former Chief Rabbi of Israel and Rishon Lezion, who with some hesitation, accepts the validity of the Heter Mechirah (80) lists in his book, published this Shemittah, an “order of preference in purchasing agricultural produce during the Shemittah.” Unlike Rabbi Aviner, he places imported products from Jordan, Egypt and Gaza (and presumably other Diaspora countries) above Heter Mechirah produce. (81)

Of course ideally one would prefer to buy products from Jews. However one has to be bound by the restraints of the Halachah and the practicalities of day to day living. We must remember that the majority of authorities hold that today the Heter Mechirah is invalid and this accordingly makes “sefichim” non-kosher. The Ridbaz goes as far as to write, “and every Jew should know that produce which is sown in the Shemittah year and fruit and vine from a vine which is pruned in the Shemittah year are as forbidden to a Jew as is pork.” (82)

In a further article brought out by Rabbi Aviner for this Shemittah, entitled “I Choose Heter Mechirah,” he gives a list of reasons for eating Heter Mechirah produce. In addition to those he gave in the previous Shemittah, he states that “if someone uses the expression ‘it is forbidden’ regarding produce provided in accordance with Heter Mechirah, he is libeling the great Rabbis who followed it,” and also “undermining Rabbinic authority.” (83) However, Rabbi Aviner is incorrect. The Heter was not given as a permanent institution but only as a temporary one to be reviewed every Shemittah and, as already stated above, the Rabbis who originally gave the Heter would not give it today.

It is relevant to mention that with no connection to Shemittah, every year a noticeable percentage of agricultural produce which is found in the Jewish sector is grown by Arabs. In the case of cucumbers, the majority are grown by Arabs. Agricultural produce which is sold under the sign “Heter Mechirah” includes this produce grown by Arabs. (84)

In order to supply those who wish to observe Shemittah with agricultural produce, many settlements have Shemittah shops. However, unfortunately not every settlement has a Shemittah shop and for those living in such places, a partial solution has been proposed by Rabbi Moshe Heiman in his book “Hamitbach b’Shemittah.” Under such circumstances, he writes one can rely on those permitting “shamur v’ne’evad” and buy from any shop in the community (even those who have Heter Mechirah produce or no supervision at all in connection with Shemittah (85)), with the following proviso. In the case of fruit: until no more of that species is found in the fields (“zeman biur”). In the case of vegetables: during the first weeks of the Shemittah year, when the vegetables reaching the shops are those where the vegetables began to sprout before Rosh Hashanah. After this period, they will be sefichim and forbidden to be eaten, and likewise after “zeman biur.” In the case of vegetables this period extends to about a year but for fruit it is much shorter, and during this period one would thus have to travel outside one’s town for one’s shopping. (86)

Heter Mechirah or imported produce?

The object of this paper is to help me, a consumer make a decision between using Heter Mechirah produce and imported products when all the vegetables from all the non-Shemittah sources are exhausted.

Here is my answer:

As stated right at the beginning of this paper, the Managing Director of “Alei Katif” said: “Otzar Ha’aretz suggests possible solutions for the supply of fruit and vegetables which are Mehadrin for the Shemittah, without having to use non-Jewish fruits and without utilising the Heter Mechirah.” If they could adhere to this principle throughout the Shemittah year and during the subsequent months when the laws of Shemittah produce are in practice still in force, then they would of course have found the ideal solution. However they already admit that in practice after the winter of the Shemittah year, the consumer will have to decide between Heter Mechirah and imported vegetables.

As we have already seen, the majority of Rabbinical authorities rule that today the Heter Mechirah is invalid (and many have ruled so from its inception!). The proclamation by the fifteen leading Rabbis (referred to above) states that “anyone who gives support to the ‘Heter Mechirah’ uproots a Mitzvah. And our ruling is that it is forbidden to rely on this ‘Heter’ and there is no room for a difference of opinion between the different communities and therefore every Jew is obligated to observe the Shemittah and anyone who gives a ruling to abolish the Shemittah by the ‘Heter Mechirah’ is guilty of causing a desecration of G-d’s name (Chillul HaShem) by giving the appearance of making a big joke of this important and holy commandment.” (87)

It thus follows that this will make vegetables grown in the Shemittah year non-kosher and as with other non-kosher food forbidden to be eaten.

Even many of those Rabbis who today accept the validity of the Heter Mechirah consider it praiseworthy to avoid utilising it. For example, such an answer was given by Rabbi Yehudah Amichai of the “Otzar Ha’aretz” Bet Din in answer to a question posed to the “Machon haTorah v’ha’Aretz.” He wrote, “and anyone who is able to go through Shemittah without utilising the Heter Mechirah is to be praised.” (88) These Rabbis will also certainly admit that one cannot class Heter Mechirah produce as Mehadrin. Let us give an example of this. Before the last Shemittah, the Chief Rabbi (89) of Ramat Gan, Rabbi Yaacov Ariel, who is one of the members of the “Otzar Ha’aretz” Bet Din, was asked whether the Mehadrin restaurants in that city utilized Heter Mechirah products. He answered that if they gave a “Mehadrin Hechsher,” the products used were not Heter Mechirah. (90)

In the case of fruit however there is no question of “sefichim”. There is the question of “shamur v’ne’evad” but many great authorities allow this, at least b’dieved. There is therefore a strong case to prefer such fruit from Israeli Jewish sources rather than imported fruit, when no “Otzar Bet Din” [produce storehouse of Bet Din that provides Shemittah fruit to the public] fruit is available in one’s locality.

The question of what to eat in the Shemittah year is of course not a new question and it was already put to Rabbi Moshe di Trani, the “Mabit” nearly five hundred years ago. Amongst the list of products which he gave was “vegetables of non-Jews.” (91) As stated above, Rabbi Mordechai Eliyahu gives priority to imported vegetables over Heter Mechirah produce.

Thus, when my choice as a consumer is between Heter Mechirah or imported vegetables, I would use the imported ones. (92)

References
(1) Kommemiyut, (Bet El), no. 50, Parashat Bahar-Bechukotai, 23 Iyar 5767 – 11 May 2007, p.4.
(2) Rabbi Yehudah Amichai, Rabbi Yaacov Ariel, Rabbi Nechemiah Goldberg and Rabbi Dov Lior.
(3) B’sheva, no. 247, 5 Tammuz 5767 - 21 June 2007, p.35.
(4) “How will I know how to identify vegetables which are Heter Mechirah?” Answer by Rabbi Amichai, Otzar Ha’aretz, (Internet: 212.199.215.132/otzar/answer9.asp).
(5) Rabbi Dr. Kalman Kahana, “The Sabbatical Year During the Generations,” Torah u’Mada, vol.2, no.2, Elul 5732 - September 1972, p.101.
(6) Mordechai Diskin, Divrei Mordechai, (Jerusalem, 5649 - 1889), pp.16-17.
(7) Open letter from Mordechai Gimpel Yaffe, Ketavim l’Toladot Chibat Zion v’Yishuv Eretz-Yisrael, [henceforth Ketavim]. vol.3, (Tel Aviv: Achdut, 5692 – 1932), letter 1322, col.891.
(8) Moshe Leib Lielienblum, Derech la’avor Gulim, (Warsaw: Achiasaf, 5659 -1899), pp.131-32.
(9) Rabbi Shmuel Mohilever, Rabbi Yisrael Trunk and Rabbi Shmuel Zanvil Klepfish.
(10) Rabbinical ruling, Hameliz, (St. Petersburg), no.58, 19 Adar II 5649 – 10 (22) March 1889, pp.2-3.
(11) Rabbi Yaacov David Willowski, Bet Ridbaz, Introduction to Pe’at Hashulchan, (Jerusalem, 5672 – 1912).
(12) Letter by Rabbi Moshe Nachum Wallenstein, Av Bet Din of Jerusalem, Habazeleth, (Jerusalem), no.46, 24 Sivan 5670 – 1 July 1910, p.297 (3).
(13) Rabbi Yaacov Shaul Elyashar, Dvar haShemittah, Hazewi, (Jerusalem), no.16, 11 Nissan 5648 – 23 March 1888, pp.7-10; Rabbi Yaacov Shaul Elyashar, Simcha La’ish, (Jerusalem 5653 – 1893), Yoreh Deah, chap.26, pp.107-109.
(14) Public announcement, Habazeleth, (Jerusalem), no.6, 21 Marcheshvan 5649 – 26 October 1888, p.44 (4); Hora’at Rabanan Kashishai to Pe’at Hashulchan, op. cit., Introduction.
(15) Hora’at Rabanan Kashishai to Pe’at Hashulchan, op. cit., Introduction.
(16) Rabbi Tuvia Rosenthal, Halachah M’voreret, (Warsaw, 5655 – 1895), Introduction, p.4.
(17) Dayan Dr. Isidor Grunfeld, The Jewish Dietary Laws, vol.2, (London: Soncino Press, 1972), pp.115-18, 124. The Bagatz ruling (referred to later) p.10, incorrectly states that the Netziv and the Bet Halevi gave their agreement to the Heter Mechirah.
(18) Rabbi Yechiel Michel Epstein, Aruch Hashulchan Ha’atid, part 1, (Jerusalem: Mossad Harav Kook, 5729 – 1969), chap.15, para.9 (end).
(19) Rabbi Yoseph Engel, Otzrot Yoseph - part 2, Shvi’it bazman haze, (Vienna, 5688 – 1928), pp.90-102.
(20) Rabbi Avraham Bornstein, Avnei Nezer, (Warsaw, 5673 – 1913), Yoreh Deah, part 1, chap.458.
(21) Rabbi Kahana, op. cit., p.108.
(22) Letter from Dr. Leon Pinsker to the Netziv, 17 Adar I 5649 – 1889, Ketavim, vol.2, (Tel Aviv: Hapoel Hatzair, 5685 – 1925), letter 874, col.657.
(23) Letter from Yechiel Michel Pines to Rashi Pin, 9 Shevat 5649 – 1889, Ketavim, vol.2, op. cit., letter 866, cols.639-40.
(24) Rabbi Kahana, op. cit., p.109.
(25) Rabbi Avraham Yitzchak Hakohen Kook, Igrot haReiyah, vol. 1, (Jerusalem: Mossad Harav Kook, 5722 – 1962), letter 207, p.258.
(26) Bet Ridbaz, op. cit.
(27) Igrot haReiyah , op. cit., letter 177, pp.226-29.
(28) Ibid., vol. 2, letter 555, p.184.
(29) Ibid., vol. 1, letter 255, p.296.
(30) Ibid, letter 236, p.283, vol. 2, letter 400, p.57.
(31) Ibid., vol. 1, letter 177, p.227, vol. 2, letter 555, p.184.
(32) Ibid., vol. 1, letter 236, p.283.
(33) Open letter from three farmers from Ekron, Habazeleth (Jerusalem), no. 25, 21 Tevet 5670 – 2 January 1910, pp.127-28 (1 – 2).
(34) Israel Supreme Court, Bagatz 7120/07, Bagatz 7628/07, Ruling given 11 Marcheshvan 5768 – 23 October 2007, [henceforth Bagatz], pp.4, 22.
(35) Ibid., pp. 20-21.
(36) “Rabbi Metzger Against Heter Mechira,” Arutz Sheva News Brief, 19 Tishri 5768 – 1 October 2007, (Internet: www.israelnationalnews.com/News/Flash.aspx/133995).
(37) Tzohar “Hashabbat” no.166, Parashat Noach, 1 Marcheshvan 5768, p.6.
(38) Ibid.
(39) Ibid., no.168, Parashat Vayera, 15 Marcheshvan 5768, p.5.
(40) Ibid., no.169, Parashat Chaye Sara, 22 Marcheshvan 5768, p.2.
(41) Ibid., no.166, op. cit, p.6.
(42) Hatzofe, 21 Marcheshvan 5768 - 2 November 2007, p.6; Jerusalem Post, 2 November 2007, p.14.
(43) “Tzohar’s alternative kashrut apparatus launched,” Ynet Jewish World, 30 October 2007, (Internet: www.ynetnews.com/articles/0,7340,L-3465743,00.html).
(44) Rabbi Tzefanya Drori , Rabbi Yaacov Ariel, Rabbi Dov Lior and Rabbi Chaim Druckman.
(45) Bagatz, p.6.
(46) Ibid., p.34.
(47) Yated Ne’eman, (Bnei Brak), 13 Marcheshvan 5768 - 25 October 2007, p.2; Hamodia, (Jerusalem), 13 Marcheshvan - 25 October 2007, p.2.
(48) “Chief Rabbinate ordains substitute kashrut supervisors,” Ynet Jewish World, 4 November 2007, (Internet: www.ynetnews.com/articles/0,7340,L-3467466,00.html).
(49) Lecture delivered by Rabbi Shlomo Goren to Jewish students at London University at Hillel House London in the 1960s (prior to July 1966). The author of this paper was present at this lecture.
(50) Possibly, Rabbi Goren’s source is Igrot haReiyah, op. cit., vol.1, letter 177, p.226.
(51) Rabbi Shlomo Goren, “Validity of the Heter Mechirah for Shemittah after the establishment of the State of Israel,” Hatzofe, (Tel Aviv), 12 Marcheshvan 5747 - 14 November 1986, p.8.
(52) Rabbi Moshe Ushpizai, Amudim, (Kibbutz Hadati), nos. 226-227, Adars 5725 – March 1965, pp 143-44.
(53) Rabbi Yosef Elyashiv, Rabbi Yehuda Shteinman, Rabbi Shmuel Vosner, Rabbi Michal Lefkowitz, Rabbi Pinchas Scheinberg, Rabbi Nissim Karelitz, Rabbi Chaim Kanievsky, Rabbi Shmuel (the son of Rabbi Shlomo Zalman) Auerbach, Rabbi Yehudah Shapira, Rabbi Yitzchak Sheiner, Rabbi Gershon Edelstein, Rabbi Meir Bergman, Rabbi Nissim Toledano, Rabbi Yehuda Ades, and Rabbi Natan Finkel.
(54) “Kriat Kodesh,” Yated Ne’eman, 10 Elul 5767 - 24 August 2007, p.1.
(55) Rabbi Yoseph Tzvi Halevi, Hora’ot Sha’a, (Jerusalem, 5669 - 1909), pp.115-116, 124-25.
(56) Rabbi Ze’ev Vitman, Likrat Shemittah Mamlachtit b’Medinat Yisrael, (Alon Shevut: Tzomet. 5760 – 2000), p.29.
(57) Rabbi Moshe Levinger, Amudim, (Kibbutz Hadati), no. 224, Shevat 5725 – January 1965, p.115.
(58) Eliyahu Ganchovsky, Harav Mordechai Elishberg, (Jerusalem, 5697 – 1937), p.78.
(59) Rabbi Naftali Tzvi Yehuda Berlin (“Hanetziv”), Meishiv Davar, part 2, (Jerusalem 5728 – 1968), chap.50.
(60) Related to the author by one of the guides of Neot Kedumim.
(61) “Heter Mechirah is launched,” Ynet News, 5 September 2007, (Internet: www.ynet.co.il/articles/0,7340,L-3446165,00.html).
(62) Rabbi Vitman, Likrat Shemittah…, op. cit., p.45 fn.9; Rabbi Ze’ev Vitman, Shemittah 5747 in Kfar Etzion,” (Kfar Etzion: Hamayan, 5748-5749 – 1988-89), p.76 fn.85a.
(63) Rabbi Levinger, op. cit., p.115.
(64) Rabbi Yitzchak Weiss, Minchat Yitzchak, vol.8 , (Jerusalem, 5753 – 1993), Orach Chaim, chap.96, pp.184, 328.
(65) Rabbi Elazar Teitz, “Heter Mechira,” Mail-Jewish vol.34 no.28, 11 February 2001, (Internet: www.ottmall.com/mj ht arch/v34/mj v34i28.html).
(66) There have actually been cases of this occurring. One was in Sha’alavim. The Rabbi of the community was very happy about this since it proved the sale to be valid, [related to the author of this paper by a Rabbi at the Yeshivah Tichonit Sha’alavim in the summer of 5753].
(67) “Behar – The Blessing of the Shemittah Year in our Time,” Jerusalem College of Technology Machon Lev, [n.d.], (Internet: www.hra.jct.ac.il/judaica/dvarTorah/dt34.html).
(68) Israel Government, Suggested Budget for the Financial Year 2008, (Internet: www.mof.gov.il/budget2007/docs2008/12.pdf).
(69) “Finance Ministry announces budget surplus of NIS 7.7 billion for 2007,” Haaretz.com, 4 December 2007, (Internet: www.haaretz.com/hasen/spages/931092.html).
(70) Machon Lev, op. cit.
(71) Jonathan Rosenblum, “Shmita is our test of faith, “Jerusalem Post, 30 November 2007, p.10.
(72) “Shmita year: Jordan farmers to the rescue,” Ynet Jewish World, 14 July 2007, (Internet: www.ynetnews.com/articles/0,7340,L-3423793,00.html).
(73) These laws can be found in the many excellent books which bring the laws of Shemittah. (74) Dvar haShemittah, Kashrut guide for the whole year, no.57, 5768, (Va’ad haShemittah/ Va’ad haKashrut of the Eda Charedit, Jerusalem), p.43.
(75) Rabbi Avraham Yeshayahu Karelitz, Chazon Ish, Zeraim, (Bnei Brak, 5719 – 1959), Shevi’it, chap.10 para.6.
(76) Rabbi Shlomo Zalman Auerbach, Minchat Shlomo, vol.1, (Jerusalem: Sha’arei Ziv, 5746 – 1986), chap.44.
(77) Rabbi Shlomo Aviner, Iturei Kohanim, (Jerusalem: Yeshivat Ateret Kohanim), no. 192, Marcheshvan 5761 – 2000, Igrot k’tsarot, p.13.
(78) Rabbi Teitz, op. cit.
(79) Ibid.
(80) Rabbi Mordechai Eliyahu, Ma’amar Mordechai - V’shovta Ha’aretz, (Jerusalem: Darchei Hora’ah Lerabanim, [n.d. 5768 – 2007], p.118.
(81) Ibid. In the course of this book, this list is brought on a number of occasions but with differences. (pp. 65, 71-72, 190, 191, 194, 195). In the majority of the cases brought, imported products have priority over Heter Mechirah.
(82) Bet Ridbaz, op. cit.
(83) Rabbi Shlomo Aviner, “I choose Heter Mechirah,” B’ahavah uve’emunah,” no.639, Parashat Vayera 5768, 15 Marcheshvan 5768 - 2007, (Machon Meir), p.8.
(84) Statistical Abstract of Israel 2004, no.55, (Central Bureau of Statistics), Agriculture 19-10, table 19.5, (after the year 2004, this Abstract did not differentiate between Jews and non-Jews); personal conversation with Rabbi Yehudah Amichai, 24 December 2007.
(85) Obviously one has to check for Terumot and Ma’asarot and Orlah.
(86) Rabbi Moshe Heiman, Hamitbach b’Shemittah, (Bnei Brak, 5753 – 1993), p.49.
(87) Kriat Kodesh, op. cit.
(88) Rabbi Yehudah Amichai, Answer to question received by the Rabbis of “Machon haTorah v’ha’aretz” on Heter Mechirah, 26 Shevat 5767 – 2007, (Internet: www.moreshet.co.il/Webs/moreshet/shut/shutMachon.asp?codeClient=1555&codeSubWeb=0&id=84234).
(89) or possibly his representative.
(90) Question was put to him by the author of this paper.
(91) Rabbi Moshe di Trani, Responsa of Mabit, part 3, (Lvov, 5621 – 1861), chap.45.
(92) Grateful acknowledgements to: Yeshivat “Nir” Kiryat Arba Library; Kiryat Arba Municipal Library; Jewish National and University Library Jerusalem; Rabbi Yehudah Amichai; the staff of Kommemiyut (Bet El); R’ Zvi Shpak.

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