The Heter Mechira of Shemitta
By: Rav Ahron Silver
(Adapted from a tape by talmid Ariel Rackovsky)
A. The Concept of Heter Mechira
The Heter Mechira -- selling one's possessions to avoid transgressing a prohibition -- applies in several areas of Halacha that we know about. The most common area is chametz. Some people question this practice as being a ha'arama (trickery) on a din deoraita (Biblical prohibition), based on the Gemara in Shabbat 139b. There, the Gemara discusses the situation of a person going to sleep on a boat on Shabbat, and waking up to find himself on the other side of the river, taken there by a non-Jew. The Gemara says this is permitted for a "tzurba merabanan" (young scholar), since he is only making a ha'arama on an issur derabanan. The implication of this Gemara is that had it been a ha'arama on a deoraita, it would be prohibited. Based on this, a number of Achronim, such as the GR"A, forbid selling chametz, since it is a ha'arama on a din deoraita. However, the Netivot Hamishpat (R. Yaakov Lorberbaum of Lisa) writes in his sefer, Mekor Chaim, that the Gemara in Shabbat does not pose a problem, since in that case he did, in fact, transgress the prohibition of boating on Shabbat. Here, though, in the case of selling chametz and buying it back, although one makes a ha'arama, he does not transgress the prohibition of owning chametz, as he employed a legal loophole. It has evolved that this is the commonly done practice in Klal Yisrael.
Another area in halacha where Heter Mechira is applied is in the case of the bechor (first-born) of an animal. Normally, the bechor of a cow or sheep is consecrated as a sacrifice. In order to be able to have benefit from the animal, one would have to let it wander around until it becomes blemished. Therefore, the Gemara in Bechorot 2b says that a person is allowed to sell the first-born to a non-Jew (even in a partnership), and then he can have benefit from the animal. Nowadays, this is what a person should do, because having a consecrated cow is only cause for a takala (stumbling block), as people will not know that it is forbidden to benefit from it. This halacha is quoted in the Shulchan Aruch in Hilchot Bechorot (Yoreh De'ah 320:3,6). [It should be pointed out that when one sells the bechor, he should sell a part of the mother and not the embryo, as the embryo has the status of a davar shelo ba laolam (something that does not yet exist), and therefore cannot be sold.]
Another area in which the use of the Heter Mechira has evolved, over the last 100 years, is the area of shemitta -- which this shiur will concentrate on.
2. The Basis for Heter Mechira on Shemitta
The original source for this is a Gemara in Gittin 47a. There, Raba says, "A non-Jew does not have the power of acquisition in Eretz Yisrael to exempt it from ma'aser." According to Raba, if a non-Jew buys a part of Eretz Yisrael, the produce of his land is still obligated in truma and ma'aser. Rabbi Elazar, several lines later, disagrees, and says it is exempt from truma and ma'aser.
There is a dispute between the Chazon Ish (R. Avraham Yeshaya Karelitz) zt"l and Rav Soloveitchik zt"l in understanding the opinion of R. Elazar in this Gemara. Does the land lose its kedushat ha'aretz (sanctity) upon sale to the non-Jew, or not? The Chazon Ish (Shvi'it 1:3) says that the land certainly retains its kedusha even if the mitzvot of the land do not apply. He distinguishes between the mitzvot of the land such as truma and ma'aser, that do not apply, and the aveirot of the land, such as kil'ei hakerem (growing grain or vegetables in a vineyard) and orlah. Thus, according to the Chazon Ish, even according to R. Elazar the prohibitions still apply. R. Soloveitchik, however, infers from a careful reading of the Rambam in Hilchot Trumot 1:10 that according to R. Elazar, the kedushat ha'aretz is removed, and therefore the prohibitions also no longer apply.
Does this apply to shemitta? According to R. Soloveitchik, shemitta has the same halacha as ma'aser, and therefore when a non-Jew buys the land, it is no longer obligated in shemitta. According to the Chazon Ish, however, it is a bit more complicated. He discusses whether shemitta is primarily a mitzvah, and the aveirot (not plowing, planting, etc.) are only functions of that mitzvah, or is it primarily an aveira? Tosfot in Gittin 62a (s.v. ain odrin) holds clearly that according to R. Elazar, shemitta would no longer apply. According to the Chazon Ish's perception, Tosfot holds that shemitta is a mitzvah, and therefore it no longer applies when the land is sold to a non-Jew.
This point, though, is mostly theoretical, lehagdil Torah uleha'adira, because we pasken like Raba that sale to a non-Jew does not exempt the land from truma and ma'aser (nor from the aveirot of the land). The Rambam (ibid.) clearly rules like Raba. Thus, the opinion of R. Elazar cannot serve as a potential basis for the Heter Mechira. [The Beit Yosef, however, is his Responsa Avkat Rochel, understands the Rambam that the obligations of truma and ma'aser remain only after a Jew repurchases the land. While it is still in the hands of the non-Jew, though, it is exempt from ma'aser. According to this understanding perhaps there is room for the Heter Mechira even according to Raba. However, R. Chaim Volozhoner (Chidushei Hagrach on the Rambam Truma 1:10) writes that only the fruits of the non-Jew are exempt, but he does not revoke the inherent kedushat ha'aretz to allow a Jew to work the field.]
Thus, the basis for the Heter Mechira must come from another angle. The Gemara in Gittin 47a asks a question against Raba from a Braita that indicates that ownership of a non-Jew does annul the sanctity of the land and remove the obligations of truma and ma'aser. The Gemara answers that this Braita is dealing only with Surya (Syria), where we say kibush yachid lo shmei kibush -- the conquest of an individual (in this case David Hamelech) is not considered a conquest in terms of having the status of Eretz Yisrael. We see that even according to Raba, although in Eretz Yisrael itself the sale of land to a non-Jew would not exempt the land from truma and ma'aser, in Syria the sale does remove the obligation of truma and ma'aser.
Why does a sale in Syria exempt the land from truma and ma'aser? Rashi explains that ma'aser there is miderabanan, and therefore a non-Jew's purchase of the land exempts it from truma and ma'aser. Rabban Gamliel, in the Mishna in Challah 4:7, quoted by the Rambam (ibid.), says that sale of land in Syria exempts even from shemitta.
Based on the above principles, the Heter Mechira for shemitta goes as follows: If we can prove that shemitta nowadays is only miderabanan, then even Eretz Yisrael proper has the same status as Syria. Therefore, selling it to a non-Jew exempts it from truma and ma'aser, and, according to Rabban Gamliel, also from the laws of shemitta. With the kedusha of the land annulled, even a Jew would be able to work the land, and the produce might not have the kedushat shevi'it.
There are three possible sources to prove that shemitta nowadays is derabanan:
1) The Tanaim in Yevamot 82a-b dispute whether the kedusha of the parts of Israel that Ezra conquered got cancelled when the Romans captured Eretz Yisrael, or not (kedusha shnia kidsha lesha'ata o kidsha le'atid lavo)? R. Yosi says that the kedusha is everlasting, whereas according to the Chachamim, it was cancelled by the Romans. According to the Chachamim, the kedushat ha'aretz nowadays is miderabanan, and therefore shemitta is only miderabanan, and there is room for the Heter Mechira to be valid.
Rabbeinu Baruch Ba'al Haterumot, quoted by the GR"A in Y.D. 331:6, rules like Chachamim. Also, Rashi in Sanhedrin 26a (s.v. puku), as well as in Gittin 36a, seems to say that the kedusha is now only miderabanan. Most Rishonim, however, rule like R. Yosi. The Rambam in Hilchot Beit Habechira 6:16, says that kedusha shnia kidsha le'atid lavo. Thus, according to the majority of the Rishonim, this dispute cannot serve as the source that shemitta is derabanan.
2) Even though there is kedushat ha'aretz, when there is no Yovel, there is no shemitta mideoraita. The Gemara in Gittin 36a questions Hillel's institution of Pruzbul (a document that allows one to collect debts after the shemitta year, despite the fact that normally shemitta cancels all debts). The Gemara asks, if mideoraita all the debts are cancelled, how could Hillel uproot a deoraita? Abaye says that we are talking about shemitta nowadays according to the opinion of Rebbi, who says, "When you observe shemitta of the land, you observe shemitta of money; when you do not observe shemitta of the land, you do not observe shemitta of money." This is based on a drasha from the pasuk, "Vezeh dvar hashemitta, shamot" -- This is the matter of the shemitta: Every creditor shall remit his authority." (Devarim 15:2) The Gemara says that this refers to the two different Shmittot; one, shemitta of the land, and second, shemitta of money.
Rashi and Tosfot disagree over the meaning of this Gemara. Rashi says that the comparison is between shemitta of the land and shemitta of money. Since there is shemitta mideoraita on the land, there is no shemitta mideoraita on money. How do we know that there is no shemitta on the land mideoraita nowadays? Because the Yerushalmi says there is only shemitta if there is Yovel. The Gemara in Erchin 32b also says that we only have Yovel if most Jews live in Eretz Yisrael. What emerges from this is that according to Rashi, shemitta only applies when most Jews live in Eretz Yisrael, and therefore it does not apply nowadays. Hence, there is room for the Heter Mechira.
Rabbeinu Tam in Tosfot says that the "shemitta" of the land refers to the return of the land to its rightful owners in Yovel. We see that the shemitta of money is compared directly to Yovel. What about working the land on the shemitta year? The Gemara never discusses it, so according to Tosfot, there is no proof as to whether it is miderabanan or not, and this passage cannot serve as a basis for the Heter Mechira.
Later in the sugya, Rava introduces the concept of Hefker Beit Din Hefker (Beit Din has the right to confiscate or transfer any property they choose to). Rashi says that Rava can hold that shemitta on money and all laws of shemitta are mideoraita, in rejection of everything that Abaye said, and yet Pruzbul is valid because of the rule of Hefker Beit Din Hefker. Tosfot 36a (s.v. mi), however, says that Rava must also agree that the answer to the original question is that shemitta nowadays is only miderabanan. The Ramban in Sefer Hazechut learns the Gemara like Rashi, and says that we pasken that shemitta nowadays is mideoraita, and Pruzbul is valid because of Hefker Beit Din Hefker. Thus, according to Rashi and the Ramban there is no proof from here for the Heter Mechira.
3) The Rambam in Hilchot Trumot 1:26 says that truma, even in the time of the Second Temple, was miderabanan, because most of the Jews did not live in Eretz Yisrael, a requirement for it to be a deoraita. He learns this from the words, "Ki tavo'u el ha'aretz." (Vayikra 25:2) The problem is that it never says, "Ki tavo'u..." in connection with trumot, only with shemitta.
R. Chaim Soloveitchik accepts the version of the Rambam the way it is, that the source is from the pasuk referring to shemitta. The Rambam understood that there are different levels of kedushat ha'aretz, the level being higher when all the Jews are there. This drasha of "Ki tavo'u..." is needed to tell us that, intrinsically, you need all the Jews to be there in order to observe shemitta. The Rambam then applied this to trumot as well.
The Netziv says that there is a printing mistake in the Rambam, as the drasha of "Ki tavo'u" does not appear anywhere. What drasha does appear? There is a drasha in Ketuvot 25a on the word "bevoachem," quoted by the Ra'avad, that you need all Jews to be in Eretz Yisrael to fulfill the mitzvah of challah. The Netziv says that the Rambam learned truma from challah, since they are both matnot kehuna and are inherently related. They are both derabanan nowadays, while shemitta is unrelated.
Who holds that shemitta nowadays is deoraita? The Ramban in Sefer Hazechut in Gittin 36 and the Raavad in Hilchot Shemitta Veyovel 1:11. Regarding the Rambam's opinion there is a dispute between the Achronim, based on halachot in Shemitta Ve'yovel 4:25 and 10:9. The Kesef Mishne is uncertain what the Rambam's opinion is; R. Chaim Soloveitchik and the Sfat Emet in the beginning of Moed Kattan say that he holds it is miderabanan; the Netziv says that the Rambam holds it's mideoraita.
There are, actually, three opinions: Some hold shemitta is mideoraita (see above); most Rishonim, hold it is miderabanan; the Baal Hamaor (Sefer Haterumot sha'ar 45, quoted in R. Zevin's, "Le'or Hahalacha," p.111, footnote 53) says that shemitta nowadays is neither, but rather a midat chassidut (act of piety). The reason for this is that shemitta depends on Yovel, and since Yovel does not exist nowadays, shemitta is only a middat chassidut. The Heter Mechira is needed and is valid only according to those Rishonim who hold it is miderabanan. (If shemitta is deoraita, it is not valid; if it is only a middat chassidut, one does not need a Heter Mechira).
Since many important Rishonim hold that shemitta nowadays is a deoraita, R. Yitzchak Elchanan Spektor zt"l, one of those who gave the Heter Mechira, had the following idea, which is the way the Heter works halacha lema'aseh. The Gemara in Moed Kattan 2b-3a says that just as on Shabbat there are Avot melacha and Toladot (primary prohibitions and derived prohibitions), so too on shemitta there are Avot (planting, harvesting) and Toladot (watering, fertilizing). Rava there holds that only Avot are deoraita on shemitta, while Toladot are only miderabanan. According to R. Yitzchak Elchanan, even those great Rishonim who hold that shemitta is mideoraita hold that the Toladot are only miderabanan, and the Heter Mechira only works for the Toladot. Thus, only a non-Jew can perform the Avot, such as planting.
The Beit Halevi has a major question about the Heter Mechira. The whole basis of the Heter is that in Syria there is a Heter to sell because there it is only miderabanan. The poskim wanted to make shemitta in Eretz Yisrael a derabanan, so that it would have the same halacha as Syria. However, this analogy is incorrect. Syria, essentially, has the status of chutz la'aretz, but due to its proximity, the Sages decreed that if land there belongs to a Jew, all the Mitzvot that apply in Eretz Yisrael apply there too, as if there was kedushat ha'aretz. If it is owned by a non-Jew, however, they never decreed that the mitzvot should apply. In Eretz Yisrael proper, though, even if the level of obligation of shemitta is reduced to a derabanan because of some technicality (e.g. toladot, no yovel), perhaps selling to a non-Jew would not revoke the kedushat ha'aretz.
How does the Heter Mechira help the consumer? Do the fruits of a non-Jew in Israel have kedushat shevi'it or not? This is a dispute between the Beit Yosef and the Mabit. The Beit Yosef makes an inference from the Rambam in Trumot 1:10 that what grows on land sold to a non-Jew does not have kedushat shevi'it even though the land is still obligated in the mitzvot of Eretz Yisrael. He also infers this from the Sifra in Parshat Behar on the pasuk, "lachem le'ochla," which says: "lachem (for you) -- and not for non-Jews." The Beit Yosef says that this means that fruits grown on a non-Jew's land don't have kedushat shvi'it. The Mabit and Maharit disagree. This has ramifications halacha lema'aseh also for those who do not rely on the Heter Mechira for produce grown by non-Jews. The minhag in Eretz Yisrael was always to hold like the Beit Yosef with regard to kedushat shvi'it (regardless of the Heter Mechira). The Chazon Ish, however, held like the Mabit and Maharit. Therefore, in Bnei Brak they are machmir (stringent). In Yerushalayim, where they hold like the Beit Yosef, anything bought from Arabs can be thrown in the garbage, and one can do anything else that one normally does with fruits that have no kedushat shvi'it. In Bnei Brak, the fruits are treated as if they have kedushat shvi'it, and many halachot change. Thus, according to the general practice like the Beit Yosef, fruit marketed based on the heter mechira does not have kedushat shevi'it.
3. Significant Financial Loss
There is a Gemara in Sanhedrin 26a that would seem, at first glance, to indicate that it is permitted to work the land in shemitta in certain cases of significant financial loss. It says that R. Yanai used to tell everyone to work the land during the shemitta in order to pay taxes. It would appear that if one is allowed to work the land in order to pay taxes, one is certainly allowed to work the land in order to save one's entire sustenance! However, one has to analyze what this Gemara means:
a) Rashi comments that they were allowed to work because shemitta is derabanan, as the kedushat ha'aretz no longer exists. Nevertheless, this begs the question that it is still an issur derabanan! Where is there any source for violating rabbinic prohibitions in order to pay taxes? There are two possible answers to this. The Pitchei Teshuva in Even Ha'ezer 157:4 quotes the Pri Megadim that although, in general, one has to spend all his money in order to avoid transgressing an issur deoraita, for an issur derabanan perhaps you don't have to spend more than a fifth of your money. The Chavot Yair, however, says that one does have to spend all his money. Possibly, Rashi held like the possibility raised in the Pri Megadim, that you are allowed to transgress an issur derabanan if it means losing over one-fifth of your money, and therefore they were allowed to work in the shemitta year because it meant losing more than that. Another possibility is that of Tosfot in Gittin 62a (s.v. ain) which says that one is allowed to transgress an issur derabanan for "shalom malchut," in order to have peace with the authorities.
b) Tosfot in Sanhedrin, however, argues on Rashi and says that it was a matter of sakanat nefashot (danger; i.e., they would have been killed had they not paid taxes), and therefore they were allowed to transgress the shemitta. The Yerushalmi in Shvi'it 4:2 says explicitly like Tosfot. [Incidentally, the Yerushalmi (ibid.) asks the following question: If it was a situation where they would be killed if they didn't work on shemitta, it is a case of sh'at hashmad (a time of religious persecution), and the halacha is that a person must die over even a regular sin (not just the three that are yehareg ve'al ya'avor) in a time of shmad. The Yerushalmi answers that the government's intention was not for religious persecution, but for its own financial benefit, and therefore the people did not have to die rather than transgress shemitta. (This remains a machloket in Shulchan Aruch; see Shach Y.D. 157:7)]
c) The Ra'avad in Hil. Shemitta Veyovel 1:11 says that this leniency was only in places that those who came back from exile in Babylonia didn't reconquer, where shemitta is only derabanan. This was the case in this Gemara.
d) The Rambam's opinion is not clear. The Aruch Hashulchan Ha'atid in Hilchot Shemitta 16:9 assumes that the Rambam understood R. Yanai's statement like the Yerushalmi and Tosfot. The Netziv in Meishiv Davar disagrees, and offers a different interpretation of the Rambam.
e) Tosfot in Gittin 62b (s.v. ain) claims that R. Yannai held like R. Elazar that non-Jews can buy the land to the extent that they exempt it from the laws of Shvi'it. This land belonged to the king, which exempted the land from the laws of shvi'it, and therefore they could work there.
This whole argument, though, is not relevant to the current Heter Mechira. If the reason they were allowed to work is because of pikuach nefesh (like Tosfot and the Yerushalmi), now is not a time of danger. If they could work because it was a derabanan, it isn't clear that we hold that shemitta is derabanan. Certainly, if the they could work because of sh'lom malchut, now there is no problem of sh'lom malchut. Furthermore, the Netziv claims that there is a difference between loss of money, and prevention of profit. In R. Yanai's time, it was a case of actual loss of money (because the king would seize your property if you didn't pay), whereas nowadays, not working is only a prevention of profit.
The Gemara in Sanhedrin (ibid.) has another halacha. An "agiston" can plant during shemitta. What in an agiston? Rashi says it is arnona, or taxes (i.e., if it is for the purpose of taxes, one can work the land). Another explanation quoted by Rashi is one who works on land owned by a non-Jew. It would appear, according to this explanation, that one is allowed to work on land owned by a non-Jew during shemitta. However, Tosfot on Gittin 62a (s.v. ein) disputes Rashi's interpretation of the Gemara. Thus, according to this Tosfot, the Heter Mechira would not allow Jewish people to do any of the labor even after selling the fields to a non-Jew.
4. "Lo Techanem"
The Netziv has a long Teshuva about the Heter Mechira and comments, "They ran away from the wolf, and encountered the lion." The wolf refers to shemitta, which, according to most Rishonim, is now only miderabanan. The lion refers to the issur deoraita of "lo techanem" (Devarim 7:2). The Gemara in Avoda Zara 20a derives three prohibitions from this phrase:
You cannot give a non-Jew ownership in Eretz Yisrael.
You are not allowed to give a present to a non-Jew for no reason.
You cannot praise non-Jews.
One can say that the issur of selling the land to a non-Jew only is relevant to those doing the actual selling (i.e. the Kibbutz or the Rabbanut), but is not relevant to the consumer. However, the Chazon Ish in Tosefet Shvi'it 4 says that this is not so. The sale is done collectively; all the kibbutzim and moshavim sign together on a document from the Rabbanut appointing the Chief Rabbinate as an agent to sell the land to one Arab. Since the sale is done with shlichut (agency), we have the principle of "ain shliach lidvar aveira" (there is no agency for prohibitions; see Kidushin 42b), and therefore the whole sale is null and void. Thus, the consumers are in violation when eating produce grown in this manner.
The Chazon Ish makes three major assumptions that are debatable:
1. The principle of "ain shliach lidvar aveira" nullifies a transaction.
The original case of "ain shliach lidvar aveira" is found in the second perek of Kidushin. If a person appoints a "hit man" to kill someone for him, the "hit man" is the murderer, not the sender, based on the above principle. Tosfot in Bava Metzia 10b (s.v. de'amar) poses the following case: What if someone appointed an agent to betroth a girl, who happened to be a mamzeret? Is she married or not? There are two opinions. The first is that she is married, but the agent sinned. The second opinion is that she is not married, because the entire shlichut in nullified.
The issue is, what does ain shliach mean? Just that the aveira does not go back, or is the entire shlichut nullified? In the case of murder, this discussion doesn't apply (since you can't say that according to the halacha he is not dead). Here, though, the legal validity of the very act is in question. The Chazon Ish assumes like the opinion that the entire shlichut is nullified, and extrapolates to the case of the Kibbutzim. He says that the transaction does not go through at all, and the land is not sold. (This is in contrast to the other possible opinion that the sale is valid, but the Rabbanut transgresses the prohibition.)
This comes up elsewhere. There is halacha in E.H. 119:6 that Rabbeinu Gershom decreed that one is not allowed to divorce his wife against her will. Nonetheless, if he does so, she is divorced. The Pitchei Teshuva there quotes the Noda BiYehuda who has the following case: A person appoints an agent to divorce his wife. The agent goes to her, and she does not want the get, so he divorces her against her will. The Noda BiYehuda says that this woman is not divorced mideoraita. Since the agent did it against her will, which R. Gershom now said is forbidden, he is doing an aveira, and "ain shliach lidvar aveira." Some Achronim disagree; see the above Pitchei Teshuva.
Another case where this is relevant found in Gittin 11a, regarding one who grabs an object to give to creditors in a situation where others lose out by his grabbing the object. The Gemara says that this acquisition does not work. The Pnei Yehoshua in Ketuvot 84 (see also K'tzot Hachoshen 105:1) says that the reason why it does not work is based on the principle of ain shliach lidvar aveira, like the Chazon Ish.
2. Ain Shliach applies even where the agent is unaware of the prohibition.
There is a major dispute amongst the Rishonim on the following question: In a case of a shliach lidvar aveira, what if the shliach transgressed the aveira unwittingly (beshogeg)?
Tosfot in Kidushin 42b (s.v. amai) says that if the shliach transgresses beshogeg, there is a concept of shliach lidvar aveira. The reason the Gemara gives that a shliach does not work for an aveira is because "divrei harav vedivrei hatalmid, diveri mi shom'in?" The shlichut is annulled, as the agent was not supposed to listen to the words of his sender, but to the command of G-d! Here, the shliach didn't know it wasn't permitted, and therefore there is a shliach lidvar aveira. The Ritva there disagrees, because he says that the logic of "divrei harav" is not the logic we use in the end to learn that there is no shliach lidvar aveira. Rather, we derive it from a pasuk.
Since the Rabbanut maintains that they are not transgressing the issur of "lo techanem," they are no worse than shogeg. To say like the Chazon Ish, you have to say that even beshogeg there is no shliach lidvar aveira, and, furthermore, that "ain shliach" nullifies the shlichut.
3. Is there really an issur of lo techanem in this case?
The Yeshuot Malko (R. Yehoshua of Kutna) and the Aderet (R. Eliyahu Dovid Rabinowitz-Teumim, one of the religious leaders of Yerushalayim at turn of the century and father-in-law of R. Kook zt"l) say that the whole purpose of lo techanem is that non-Jews should not live in Eretz Yisrael, and Jews should. The Heter Mechira is in order that we should prosper and be able to stay in Eretz Yisrael, and therefore it is not a transgression of lo techanem.
The Kaftor Vaferach claims that you can only sell land to a non-Jew is Eretz Yisrael if there is no Jew willing to buy it, whereas the Torat Chessed disagrees. The Kaftor Vaferach might agree that it is permitted in this instance, because there will be no Heter Mechira if one sells the land to a Jew. R. Kook claimed that since it is only sold temporarily, there is no transgression of lo techanem. Other Gedolim held a variation of Rav Kook's opinion; see Rav S.Y. Zevin, "Le'or Hahalacha."
The Netziv did not like the Heter Mechira, because he held it was a transgression of lo techanem. However, he had a different suggestion on how it was possible to get around shemitta. He held that the criterion for land being obligated in the mitzvot of Eretz Yisrael is ownership by a Jew. To avoid this, one can be mafkir the land (declare it ownerless), which effectively does whatever the Heter Mechira does as far as removing the kedushat ha'aretz, without violating lo techanem.
5. Additional Aspects of the Heter Mechira
There are a number of other points related to the Heter Mechira:
a) When is shemitta? The Rambam in Hilchot Shemitta Veyovel 10:5,7 says that there is no Yovel, and therefore one counts seven years from the current shemitta. (If there was Yovel, shemitta would be in the 57th rather than the 56th year). The Ra'avad says even nowadays the Yovel year is a blank year and the shemitta is in the 57th year. Thus, there is doubt whether the year is actually the shemitta year in the first place! We clearly hold like the Rambam, though, as we are not at all concerned with the year of shemitta according to the Ra'avad's count. T and therefore this doubt is not a lenient factor that can be relied upon.
b) One of the biggest opponents to the Heter was the Ridbaz (R. Yaakov Dovid Willawsky, the Rav of Slutzk and later a Tzfat, and author of a famous commentary on Talmud Yerushalmi). One of his objections to the Heter was that the whole purpose of selling the land to a non-Jew is to facilitate settling Eretz Yisrael. The way this is done is that by selling it, one nullifies the kedusha. If so, one is not in fact fulfilling the mitzvah of living in Eretz Yisrael at all!
R. Kook, at the end of the introduction to his sefer "Shabbat Ha'Aretz," answers this by saying that there are two aspects to Eretz Yisrael. One is the technical kedusha, which is relevant for halachic concepts like truma, ma'aser and shemitta. The other aspect is the concept that Eretz Yisrael is the home of the Jewish people with the extra level of hashgacha pratit (Divine Providence) involved, and this is not dependant on the halachic kedusha. He shows that there is a mitzvah to live in Eretz Yisrael even if there is no kedushat ha'aretz.
c) R. Moshe Soloveitchik had the following objection to the Heter: The Rambam in Hilchot Shluchin Veshutfin 3:7 quotes from the Geonim that if one needs to appoint an attorney through "harsha'a," but has no land, he can use the four amt that he is entitled to in Eretz Yisrael as the land. The Rambam questions the validity of this practice. One of his objections is that he may not have any property in Eretz Yisrael (he may be a convert, or his ancestors may still be alive). Even if he does, it isn't in his possession. What does the Rambam mean that it isn't in his possession?
The Chazon Ish and R. Moshe Soloveitchik disagree on the meaning of the Rambam. The Chazon Ish quotes R. Yochanan in Bava Metzia who says that in order to consecrate or sell something, it must be yours and accessible to you. The Gemara asks, what about someone who is on your land? The Gemara answers that it depends on whether you can reclaim the land back in Beit Din. If yes, the land is in your possession. What if the squatter refuses to move and Beit Din cannot control him? The Shita Mekubetzet says that since you can't remove him, you cannot sell it. The Chazon Ish says that this is the meaning of the Rambam. Nowadays, a person cannot gain possession of his four amot in Eretz Yisrael.
R. Moshe Soloveitchik, however, quotes the prophet Yechezkel who says that there will be a new division of the land at the time of the Geulah. R. Moshe claims that the old division was undone at the time of the churban bayit, and has to be redone at the time of the Geulah. Until then, Eretz Yisrael belongs to the Jewish people as a whole, and all private ownership in it ceases to exist (although one can have an agreement who will live where). If that is the case, you cannot sell the land to a non-Jew, because no one owns the land to sell it.
Amongst those who supported the Heter were R. Yehoshua of Kutna; R. Yitzchak Elchanan Spektor, Rav of Kovno; R. Kook; R. Tzvi Pesach Frank, Rav of Yerushalayim.
Amonst theseThose who were against it were the Beit Halevi; the Netziv; R. Dovid of Karlin (one of the great Gedolim at the end of the last century, although not well known now); the Chazon Ish.
Even those who gave the Heter only gave it at the time because of the situation in the country. They all said that before every shemitta, the Rabbanut must re-evaluate the situation and see if the Heter should still apply. They never gave the Heter lechatchila.
Those that live outside of Eretz Yisrael should know that this affects them as well, when it comes to produce or etrogim that come from Eretz Yisrael.
Shiur ID: 4048