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Introduction
This week we shall explore whether Shmittah observance nowadays is required biblically or rabbinically. This question has great ramifications because one can rule more leniently regarding a rabbinical prohibition than regarding a biblical prohibition. Indeed, the controversial Heter Mechira can be contemplated only if Shmittah observance today is a rabbinical obligation. We shall also see that a minority view among the Rishonim asserts that nowadays we are not obligated by any standard to observe Shmittah.
Does Eretz Yisrael Retain its Kedusha in Our Times?
Eretz Yisrael was endowed with a special holiness from the time that Hashem promised the land to Avraham Avinu (see Kaftor Va'ferach chapter ten). According to Rav Yehuda Halevi (Sefer HaKuzari 2:14), this special quality was inherent in Eretz Yisrael from the time of Creation. Hashem refers to Eretz Yisrael as His land (Yoel 4:2), the Tanach (Shmuel I 26:19) refers to Eretz Yisrael as Hashem's Nachalah (portion), and the Torah (Devarim 11:12) tells us that Hashem's eye is always on Eretz Yisrael. These special qualities persist throughout the ages regardless of who controls the Land (see Kaftor Va'ferach ibid., Teshuvot Chatam Sofer Yoreh Deah 23, and Rav Avraham Yitzchak Hakohen Kook's introduction to his work regarding Shmittah entitled Shabbat Haaretz).
The Gemara in many places (Yevamot 82, Arachin 32b, and Nidda 46b) records a Tannaitic debate whether Eretz Yisrael retains special holiness (Kedusha) during the periods of Destruction. This holiness does not emanate from Hashem’s presence in the Land as we described in the previous paragraph. Rather, this holiness stems from the Jewish People's possession of the Land. Hence, this aspect of the holiness of the Land of Israel might have elapsed when the Jewish People were expelled from their Land.
The Tannaim debate whether this holiness of Eretz Yisrael elapsed subsequent to the destruction of the First Temple. The Gemara presents the dispute whether the First Kedusha (Kedusha Rishonah), which was initiated by Yehoshua upon conquering Eretz Yisrael, was temporary in nature (לשעתה) or permanent in nature
לעתיד לבא)). Almost all Rishonim rule that the Kedusha Rishonah was temporary in nature (see, for example, Rambam Hilchot Bait Habechira 6:16 and Raavad to Hilchot Terumot 13:13).
The Gemara records a similar debate: Did the holiness initiated by Ezra upon his leading a group of Jews to resettle Eretz Yisrael (referred to as the Kedusha Sh'niya) elapse upon the destruction of the Second Temple? The Rishonim discuss how to resolve this debate. One group of Rishonim (for example, Rambam Hilchot Bait Habechira 6:16 and Raavad to Hilchot Terumot 13:13) asserts that the Kedusha Sh'niya is permanent. The Rambam presents a particularly interesting and somewhat cryptic explanation as to why the Kedusha Sh'niya is permanent whereas the Kedusha Rishonah is regarded as temporary. The Rambam's comments have engendered much discussion between Acharonim (see the sources cited in the Encyclopedia Talmudit, 2:217-218 notes 121 and 122 and Rav Yosef Dov Soloveitchik's explanation recorded in his work On Repentance). Another group of Rishonim asserts that the Kedusha Sh'niya also elapsed upon the destruction of the Second Temple. These authorities include the Sefer Hateruma (Hilchot Eretz Yisrael) and Rabbeinu Simcha (cited by the Ohr Zarua Avodah Zara 299).
It is important to note that the second group of Rishonim is far less prominent than the first group of Rishonim. According to the first group, it is possible that nowadays we are biblically obligated to observe Shmittah. According to the second view, Shmittah observance after the destruction of the Second Temple cannot be biblically mandated since the holiness of Eretz Yisrael has elapsed.
Rav Yosef Karo (Kesef Mishna to Rambam Hilchot Shmittah V'yovel 4:25, 9:1, and 10:9) asserts that the Rambam believes that Shmittah observance today is biblically mandated. A number of Acharonim rule in accordance with this view. These authorities include the Netziv (Teshuvot Meishiv Davar - Kuntress Dvar HaShmittah) and Rav Yechiel Michel Epstein (Aruch Hashulchan Heatid 1:1). The Bait Halevi (Teshuvot 3:1) concludes a lengthy review of the subject by stating that a majority of Rishonim believe that Shmittah nowadays to be biblically mandated.
Another consideration in favor of the view that Shmittah today is biblically mandated is the intriguing possibility that the State of Israel's control over portions of Eretz Yisrael revives the Kedusha Sh’niya and perhaps even the Kedusha Rishona. For discussions of this issue see Teshuvot Tzitz Eliezer (10:1), Rav Shlomo Yosef Zevin
(Techumin 10:24-25), and Rav Zev Whitman (Likrat Shmittah Mamlachtit Bimidinat Yisrael pages 156-164).
The Disputed Requirement of Biat Kulchem
Other authorities argue that the Rambam believes that Shmittah today is only rabbinically mandated despite the fact that the Kedusha Sh'niya is permanent. These authorities include the Maharit (Teshuvot 1:25) and Rav Chaim Soloveitchik (commentary to the Rambam Hilchot Shmittah V'yovel 12:16). These authorities note that the Rambam (Hilchot Terumot 1:26) asserts that the obligation to remove Terumot and Maaserot is only rabbinical in nature because all of the Jewish people do not reside in the Land of Israel (Biat Kulchem). This unfortunate situation has existed since the exile of the ten tribes that occurred towards the end of the period of the First Temple. The Rambam's ruling is based on a passage that appears in Ketubot (25a). The Gemara states that the obligation to separate Challah today is only rabbinical in nature due to the fact that all Jewish people do not reside in the Land of Israel. The Rama (Yoreh Deah 331:2 - in the context of the Halachot of Terumot and Maaserot) notes the common practice to accept this opinion of the Rambam.
The Rambam extrapolates the requirement for Biat Kulchem from the laws of Challah to the laws of Terumot and Maaserot. The Maharit and Rav Chaim believe that the Rambam makes this extrapolation to the laws of Shmittah as well. A proof to this argument is the fact that the Pasuk the Rambam cites as the source for the requirement of Biat Kulchem is in the context of Shmittah. Rav Yosef Karo and those who follow his view, on the other hand, argue that the Rambam mentions the requirement of Biat Kulchem only in the context of the laws of Terumot and Maaserot but not in the context of the laws of Shmittah.
A very interesting issue emerges from the prediction that within the next few decades a majority of the Jewish People will be residing in the Land of Israel. For a discussion of the impact this may have on the requirement for Biat Kulchem, see Rav Shlomo Yosef Zevin (Techumin 10:24-25).
The Possible Link between Shmittah and Yovel
The Gemara (Gittin 36) addresses the question whether the requirement to observe Shmittah today is mandated biblically or rabbinically. The Gemara indicates that the matter is disputed between Rebbe and the Rabbanan. Rebbe believes (as explained by Rashi s.v. B'shviit) that the laws of Shmittah and the laws of Yovel are linked. Rebbe argues that since Yovel is inoperative, Shmittah is inoperative (on a Torah level) as well. The Rabbanan reject this link between the laws of Shmittah and Yovel.
It is not clear which of these opinions is accepted as normative. Usually, Halacha follows the majority view, in which case the view of the Rabbanan that Shmittah is a Torah obligation would be accepted. On the other hand, the Jerusalem Talmud (cited by Rashi ibid.) presents Rebbe's as the normative opinion.
The Unique View of the Baal Hamaor
The Baal Hamaor (cited by the Raavad Gittin 19a in the pages of the Rif) rules that Shmittah does not apply today since the Halacha follows Rebbe. The Baal Hamaor believes that Rebbe believes that in today's circumstances Shmittah does not apply even on a rabbinical level. The Baal Hamaor believes that those who observe Shmittah nowadays are merely engaging in an act of piety (Midat Chassidut). The Baal Hamaor is cited by the Rama (Choshen Mishpat 67:1) in the context of the laws of the cancellation of loans during the seventh year.
Two basic attitudes regarding this opinion have emerged in the debate over the observance of Shmittah in the past hundred years. On the one hand, Rav Ovadia Yosef (Teshuvot Yabia Omer 3:19) points out that a number of Rishonim subscribe to the view of the Baal Hamaor. Hence, the Baal Hamaor's view can be used as a lenient consideration, especially regarding the implementation of the Heter Mechira. The Bait Halevi (Teshuvot 3:1), on the other hand, concludes that the Baal Hamaor’s view is intended to apply only to the issue of the cancellation of debts during the seventh year. Thus, the Baal Hamaor is entirely irrelevant to the debate surrounding the Heter Mechira.
Conclusion
It is far from clear whether we are obligated to observe Shmittah today on a biblical or rabbinical level. We have cited the Aruch Hashulchan Heatid and the Netziv, who rule that we are obligated to observe Shmittah on a Torah level. However, most twentieth century authorities rule that Shmittah today is only a rabbinical obligation. These authorities include Rav Avraham Yitzchak Hakohen Kook (introduction to Shabbat Haaretz), the Chazon Ish (24:7), Rav Shlomo Yosef Zevin (L'ohr Hahalacha page 110), and Rav Shlomo Zalman Auerbach (Teshuvot Minchat Shlomo 1:44). This appears to constitute the normative opinion. See Rav Hershel Schachter’s Eretz Hatzvi (chapter 30) for a discussion of the special status of Jerusalem in this context.