From Parshat Bechukotai Vol.9 No.31
Date of issue: Date of issue: 22 Iyar 5760 -- May 27, 2000
The Heter Mechira - Part One
by Rabbi Howard Jachter
One of the most controversial Halachic issues in modern times has been the Heter Mechira, the sale of Israeli farmland to a non-Jew to avoid the prohibition of working the land in Israel during the Shmittah year. Since the Shmittah year of 1888-1889 (the first Shmittah of the modern return to Zion), the Halachic propriety of the Heter Mechira has been vigorously debated by the Halachic authorities of each generation. The Bait Halevi, Netziv, Aruch Hashulchan, Ridbaz, Chazon Ish, and Rav Yosef Shalom Elyashiv are among the many rabbis who oppose the sale. Rav Yitzchak Elchanan Spektor, Rav Kook, Rav Tzvi Pesach Frank, Rav Yechiel Michel Tukachinsky, Rav Shlomo Yosef Zevin, and Rav Ovadia Yosef are among the many rabbis who approve of the sale. No consensus has emerged regarding this issue. Many observant Jews rely on the Heter Mechira and many do not. This week and next week we will briefly survey the major points of debate in this historic dispute. A lengthier survey written by Rav Shlomo Yosef Zevin appears in L'ohr Hahalacha (pages 112-127).
It is vital to emphasize that even the proponents of the Heter Mechira do not seek to establish it as a permanent feature of Jewish life, unlike the sale of Chametz before Pesach. Rav Avraham Yitzchak Hakohen Kook, for example, writes:
This is merely a temporary measure (Horaat Shaah) that we implemented only because of the overwhelming need to do so. God forbid that one should consider annulling a great and central Mitzva such as the holiness of Shmittah unless it is a matter of life and death, such that if we do not sell the land many will die of starvation and the fledgling new Jewish settlement in Eretz Yisrael will be destroyed. However, at a time that a competent Bait Din will conclude that the sale is not necessary and that the nation can observe Shmittah without endangering lives, then God forbid that the sale should take place in such circumstances.
Why is the Heter Mechira So Controversial?
Many people ask a fundamental question regarding this dispute. The Talmud is replete with examples of avoiding a Halachic prohibition by transferring title of ownership of a particular item (Maaser Sheni 4:5, Tosefta Pesachim chapter 2, Beitzah 17a, and Nedarim 48a). In fact, the Gemara (Bechorot 3b) even encourages selling an animal to a non-Jew before it gives birth for the first time to avoid the restrictions regarding a Bechor (firstborn). Moreover, Mechirat Chametz has developed into a yearly routine in observant communities.
A basic answer is that there is no precedent in the Gemara for a sale to avoid Shmittah restrictions. In fact, there are at least three major points of criticism that may account for the absence of a Talmudic precedent for the sale. The first criticism is that Halacha forbids the sale of Israeli real estate to non-Jews. The second criticism of dispute is the contention that the sale is a charade and thus invalid. The third criticism is that a non-Jew's ownership of Israeli land does not remove Shmittah prohibitions from that land.
Moreover, almost none of the sales referred to earlier have the effect of abrogating an entire Mitzva from the Torah. Chazal encourage the sale of the animal that is about to give birth for the first time due to the great difficulty of observing the laws regarding the Bechor today, when we do not have a Bait Hamikdash. The opponents of the Heter Mechira argue that this sale flippantly eliminates a Torah prohibition. We will now begin to examine three major challenges to the validity of the Heter Mechira.
The Prohibition to Sell Israeli Land to Non-Jews
The Torah (Devarim 7:2) presents the prohibition of Lo Techanem (do not show them favor) concerning the seven nations that we were commanded to conquer upon entering Eretz Yisrael. The Gemara (Avodah Zara 20a) explains that this prohibition has three branches: we are not to extend gratuitous compliments to them, we are not to give gratuitous gifts, and we are not to sell them land in Israel. Tosafot (ad. loc. s.v. D'amar) writes that in all likelihood these prohibitions apply to all non-Jews, not only the seven nations.
Accordingly, the Netziv (Teshuvot Meishiv Davar Yoreh Deah Kuntress Dvar HaShmittah) rejects the Heter Mechira because we are forbidden to sell Israeli land to a non-Jew. In fact, the Netziv asserts, selling the farmland to a non-Jew is a more severe prohibition than failing to observe Shmittah. This is because Lo Techanem is undoubtedly a biblical prohibition and many authorities rule that Shmittah today is only a rabbinical obligation. The Netziv described the situation as "running from a wolf and encountering a lion."
The proponents of the Heter Mechira respond that selling the farmland to avoid Shmittah does not violate Lo Techanem. They note that some authorities (such as the Bach, Choshen Mishpat 249) rule that this prohibition does not apply to a non-Jew who worships only one God, such as a Moslem. The Israeli Chief Rabbinate is particular to sell the land to a Moslem for this reason.
Another reason why the sale may not violate Lo Techanem is that the sale is only a temporary one. Since the time of Rav Yitzchak Elchanan, the sale has been only for a two-year period. The proponents of the Heter Mechira point out that the Rambam (Hilchot Avodah Zara 10:4) writes, "Why are we forbidden to sell them land? Because the Torah states Lo Techanem, that one may not give them a resting place in the Land. If they do not have land then their residence in Israel shall be temporary." The proponents of the sale argue that it is unusual for the Rambam in the Mishna Torah to offer the reason for a Mitzva. The Rambam presents the reason for this prohibition, they argue, because the prohibition applies only when the reason applies (see, however, Rav Yitzchak Twersky's Introduction to the Code of Maimonides pages 407-514 for a different appraisal of the Taamei Hamitzvot that the Rambam included in the Mishna Torah). Thus, since the sale is only temporary in nature, Lo Techanem does not apply since the non-Jew is not presented with the opportunity to reside permanently in Israel (see Rav Kook's Shabbat Haaretz 58).
A precedent for this ruling is a seventeenth century responsum written by Rav M. Robbio, the Rav of Chevron (Teshuvot Shemen Hamor, Yoreh Deah 4). This responsum permitted the sale of a vineyard to a non-Jew prior to Shmittah for a period of two years. It is reported that Rav Yitzchak Elchanan considered this ruling a vital precedent for his approval of the Heter Mechira. Teshuvot Yeshuot Malko (number 55) added that the Heter Mechira is conducted with the intention of preserving the Jewish presence in Eretz Yisrael. When a sale to a non-Jew enhances the Jewish presence in Israel then the prohibition of Lo Techanem does not apply.
The Chazon Ish (Shviit 24:1-4) flatly rejects these lenient rulings regarding Lo Techanem. He writes, "One cannot make exceptions to the Torah's rules." In fact, the Chazon Ish adds that since the sale is forbidden, if one appoints an agent to sell the land the sale is void. This is an application of the Talmudic teaching "Ein Shliach L'Dvar Aveira" (loosely translated, the laws of agency do not apply when one appoints an agent to perform a forbidden act). Accordingly, since individual farmers do not sell the farmland to a non-Jew, but rather the farmers appoint the Israeli Chief Rabbinate as their agent to sell the land, the sale is invalid. Since the rabbinate, according to the Chazon Ish, is violating the Torah by selling the land to a non-Jew, the rabbinate is not a valid agent of the farmers.
There are at least three potential responses to the "Ein Shliach L'Dvar Aveira" argument of the Chazon Ish. First, the Chazon Ish assumes that the "Ein Shliach L'Dvar Aveira" rule implies that the agency is invalid. Others assert that this rule implies only that the agent, but not the one who appointed him, is viewed as the sinner. These authorities assert that the agency remains valid despite the sin committed by the agent. The Aruch Hashulchan (Even Haezer 141:139) writes that many authorities rule that the agency remains valid despite the Halachic violation and that this dispute has not been resolved and remains in doubt. This dispute is based on the two opinions that appear in Tosafot (Bava Metzia 10b s.v. D'amar L'yisrael).
A second response to the Chazon Ish is that the Maharshal (cited and rejected by the Shach C.M. 348:6) rules that if the agent does not realize that he is performing a sin, the rule of "Ein Shliach L'Dvar Aveira" does not apply. The Israeli Chief Rabbinate obviously does not believe that it is sinning when it sells the farmland to a non-Jew.
A third response is that the Rama (C.M. 388:15) rules that if it is "established" that this agent will perform the transgression, then the "Ein Shliach L'Dvar Aveira" rule does not apply. The Israeli Chief Rabbinate has undoubtedly established the fact that it engages in the Heter Mechira. Although the Shach (C.M. 388:67) vigorously disputes this ruling of the Rama, one may combine these three arguments in addition to the possibility that the Rabbinate does not violate Lo Techanem at all to argue that the sale of the farmland to the non-Jew is valid.
Next week, God willing and Bli Neder, we will complete our survey of the historic dispute regarding the Halachic viability of the Heter Mechira.
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