Shmittah She’ailos

Question #3: A Holy Roast

After cooking a delectable roast, a knowledgeable housewife noticed that the label indicated that the wine she used as one of her ingredients had kedushas shvi’is. How does this affect the main course of her family’s Shabbos repast?

Question #4: Heter Mechirah Versus Otzar Beis Din

“I have heard of the controversy regarding heter mechirah, but this year I heard about a new (to me) concept called otzar beis din. Could you please explain to me what this is?”

Introduction

How can we read Parshas Behar during shmittah without devoting time to understanding the laws of this special year? As our opening questions demonstrate, even someone living in chutz lo’oretz needs to know about these laws. Although it is true that shmittah does not affect produce that grows outside Eretz Yisroel, even in chutz lo’oretz we must treat the fruit of Eretz Yisroel with kedushas shvi’is, a special sanctity that includes a list of requirements that we will discuss shortly.

Laws Of The Land

The Torah (Vayikra 25:1-7) teaches that every seventh year is shmittah. During that year, one may not plow, plant, or work the land of Eretz Yisroel in any way. A Jew may not have a gentile work his field (Avodah Zorah 15b). In addition, the landowner must treat whatever grows as ownerless, allowing others to enter his field or orchard to pick some produce and keep it for themselves. They may take as much as their family will eat. If it is a vineyard, they may take enough grapes to produce wine for their family for the year. The landowner himself may also take this amount (see Rambam, Hilchos Shmittah 4:1). According to many authorities, the owner has a special mitzvah to declare that his produce is hefker, ownerless (Shu”t Igros Moshe, Yorah Deiah 3:90 s.v. vehata’am).

Laws Of The Fruit

The Torah imbues shmittah produce with special sanctity called kedushas shvi’is, declaring “vehoysah shabbas ho’oretz lochem leochlah, the produce of the shmittah should be used by you for food” (Vayikra 25:6). According to accepted opinion, one is not obligated to eat shmittah food; rather, the Torah grants us permission to eat it, whereas many non-food uses are prohibited (Chazon Ish, Hilchos Shvi’is 14:10). There is much halachic detail involved in correct use of shmittah produce. For example:

Commercial Sale

One may not harvest shmittah produce to sell commercially (Tosefta, Shvi’is 5:7). As mentioned above, one is permitted to pick shmittah produce for one’s personal consumption. Similarly, one must be careful not to sell shmittah produce in a way that implies that one is its true owner. For this reason, shmittah produce may not be sold by weight or measure (Mishnah Shvi’is 8:3) nor sold in a regular store (Yerushalmi, Shvi’is 7:1). Instead, the produce should be given away in a way that implies that this is a sharing or distribution rather than a sale.

Export

One may not export shmittah produce out of Eretz Yisroel (Mishnah Shvi’is 6:5). Some opinions permit exporting shmittah wine and esrogim, although the rationales permitting this are beyond the scope of this article (Beis Ridbaz 5:18; Tzitz Hakodesh, Volume 1 #15:4; cf. Shu”t Igros Moshe, Orach Chaim 1:186, who disagrees with these heteirim).

Jewish Consumption

Although one is permitted to invite a gentile to join him for a meal, one may not give or sell kedushas shvi’is produce to a gentile (Rambam, Hilchos Shmittah 5:13 and Mahari Korkos ad locum). The Torah permitted shmittah produce lochem, only to those commanded in the mitzvah.

Exchange

Shmittah produce has an unusual halachah in that it is tofes domov, it transfers its special laws onto the money or other item that is exchanged for it (Sukkah 40b). If one trades or sells shmittah produce, the food or money received in exchange also has kedushas shvi’is, and must follow the same instructions as shmittah produce, as explained above.

Even so, the original produce maintains its kedushas shvi’is. (Because of space constraints, I will leave the details of these halachos for another time.)

Biur

Once a certain fruit or vegetable is no longer available in the wild, new laws, called biur shvi’is, apply to any of the fruit that one has left that is more than three meals’ supply.

The rishonim dispute exactly how to translate the term biur shvi’is and what one is required to do with the balance of the fruit. The accepted practice is that one declares it ownerless in the presence of three people. If these people choose not to take it, the owner may retrieve it and keep it.

Misuse

One may not “ruin” or misuse shmittah produce (Pesochim 52b). What types of “ruining” did the Torah prohibit? One may not cook foods that are usually eaten only raw, nor may one eat raw produce that is usually cooked (Yerushalmi, Shvi’is 8:2; Rambam, Hilchos Shvi’is 5:3). Therefore, one may not eat raw shmittah potatoes, nor may one cook shmittah cucumbers or oranges.

Contemporary authorities dispute whether one may bake a banana cake using shmittah produce. Similarly, they dispute whether one may add shmittah oranges to a recipe for a roast. Even though the cake or the roast is delicious because of the added fruit, many authorities prohibit such baking or cooking, since these fruits are usually eaten raw (Shu”t Mishpat Kohen #85). Others permit this baking or cooking, if it is a usual way of eating these fruits (Mishpetei Aretz page 172, footnote 10).

Disposition

One may not dispose of shmittah produce that a person might still eat. This means that leftovers may not be randomly thrown into the garbage. One must place them in a bag or bin until they decay to the point that a person would not consume them, and then one may dispose of them.

One may feed shmittah produce to animals only if it is not considered fit for human consumption. This includes varieties grown for fodder, as well as peels and seeds that people do not usually eat (Rambam, Hilchos Shmittah 5:5).

A Spoiled Turtle

A neighbor of mine, who usually feeds lettuce to his pet turtle, has a problem this year. Before shmittah, he was trying to get the turtle to eat grass, but the turtle preferred lettuce, which required the owner to find lettuce without any shmittah sanctity to feed his spoiled turtle.

Juicing

Similarly, juicing vegetables and most kinds of fruit is considered “ruining” the shmittah produce and is prohibited, although one may press grapes, olives and lemons, since the juice and oil of these fruits are considered improvements. Many contemporary authorities permit pressing oranges and grapefruits, provided one treats the remaining pulp with kedushas shvi’is. Even these authorities prohibit juicing most other fruit, such as apples and pears (Minchas Shlomo, Shvi’is pg. 185).

Sefichim

In addition to the Torah’s laws concerning shmittah produce, there are also regulations concerning shmittah that were instituted by Chazal. The Torah permitted consuming any produce that grew on its own during shmittah, as long as one treated it with kedushas shvi’is, as explained above. However, Chazal prohibited much of what grows during shmittah under a prohibition called sefichim.

Why Did Chazal Prohibit This Produce?

Unfortunately, even in the days of Chazal, there were Jews who deceitfully ignored shmittah laws. One practice utilized by unscrupulous farmers was to plant grain or vegetables and market them as produce that grew on its own. To make certain that these farmers did not benefit from their misdeeds, Chazal forbade all grains and vegetables, even those that grew on their own, a prohibition called sefichim, or plants that sprouted.

Perennials

Since the prohibition was to discourage people from planting during shmittah, it included only vegetables and grains that are planted anew every year, called annuals. However, perennial produce that do not require replanting every year, such as bananas and strawberries, are not included in the prohibition of sefichim.

Gentile-Grown Produce

Several exceptions were made to the prohibition of sefichim, the most commonly applied being that produce of a non-Jew’s field is not prohibited as sefichim.

Is Distance Bliss?

At this point, we can begin to discuss the questions that opened our article, the first of which was, “Do the laws of shmittah affect me when I am living in the United States?”

The obvious answer is that although the laws of shmittah do not affect any produce that grows outside of Eretz Yisroel, they do affect the produce of Eretz Yisroel, no matter where it travels. Thus, even if our American does not visit Eretz Yisroel, he can still be affected by the laws of shmittah, as the other questions demonstrate.

Sefichim

“I noticed a sign in shul announcing that some fruits and vegetables sold in a local supermarket are from Israel and must be treated appropriately. Then, someone told me that the vegetables are sefichim. What does that mean?”

If indeed the vegetables grew from annuals that grew in a Jew’s field during shmittah, they would have the halachic status of sefichim and would be prohibited. If it was fruit or other annuals, the fruit is permitted but must be treated with kedushas shvi’is as explained above.

A Holy Roast

At this point, let us examine the third question we raised above: “After cooking a delectable roast, a knowledgeable housewife noticed that the label indicated that the wine she used as one of her ingredients had kedushas shvi’is. How does this affect the main course of her family’s Shabbos repast?”

The exporter of the wine used by this woman obviously relied on the opinions that one may export shmittah wine outside Israel. As I mentioned above, this is by no means a universally-held position. However, whether or not there is a legitimate basis to permit the export, the wine must still be treated with shmittah sanctity, regardless as to where it is shipped. The wine should not have been used as an ingredient in a roast. Notwithstanding, since it is already after the fact, the laws of shmittah sanctity now apply to the entire roast. One may certainly eat and enjoy the roast without any concerns. However, if there are any leftovers from the family repast, one may not dispose of the roast while it is still edible, but should wait until it becomes spoiled. The same halachah will apply to its gravy.

This is assuming that the wine has not yet passed its time of biur, as mentioned above. If that date has passed and a proper biur was not performed, the wine and anything made with it will be prohibited.

The Heter Mechirah

At this point, let us address the last question: “I have heard of the controversy regarding heter mechirah, but this year I heard about a new (to me) concept called otzar beis din. Could you please explain to me what this is?”

One of the more controversial issues germane to shmittah observance is that of heter mechirah. The basic concept is that the farmer sells his land to a gentile, who is not required to observe shmittah. Since a gentile now owns the land, the gentile may farm the land, sell its produce, and make a profit.

Those who reject the heter mechirah consider this to be a sham transaction, a pure violation of the mitzvos. Others contend that this should be treated no differently than selling chometz to a gentile before Pesach, which is an accepted practice with early sources (Shu’t Yeshuos Malko, Yoreh Deiah #53). However, many point out differences between selling chometz to a gentile and selling him land in Eretz Yisroel. Indeed, although the Mishnah (Pesochim 21a) and other early halachic sources (Tosefta, Pesochim 2:6) mention selling chometz to a non-Jew before Pesach, no early source mentions selling land in Eretz Yisroel to avoid shmittah (Sefer Hashmittah pg. 71). Furthermore, since, in most instances, the Jew continues to work the field and treat the produce as his own, the facts “on the ground” (pun intended) should demonstrate that he never really intended to sell his field.

There is another very important point. Even the authorities who permit selling land to a gentile to avoid kedushas shevi’is agree that, in so doing, one is avoiding fulfilling the mitzvah. Thus, even the lenient position accepts that the heter mechirah is allowed only when someone will otherwise ignore the halachos completely and violate the Torah’s law. It is certainly preferred to avoid heter mechirah and observe the mitzvah as Hashem wants.

In addition to the question of whether one should evade performing a mitzvah of the Torah, the issue of heter mechirah involves another tremendous halachic difficulty: It is prohibited to sell any land of Eretz Yisroel to a non-Jew (Avodah Zorah 20a), and Chazal prohibit even renting it to a non-Jew (Mishnah, Avodah Zorah 20b)? For this reason, many authorities rejected the use of the heter mechirah.

Among contemporary poskim there is wide disagreement whether one may eat produce grown on the basis of heter mechirah; some contending that one may, others ruling that both the produce and the pots are non-kosher, whereas others accept that the pots should not be considered non-kosher but hold that one should carefully avoid eating heter mechirah produce. Because of the halachic controversies involved, none of the major hechsheirim in North America approves heter mechirah produce.

Otzar Beis Din

At this point, let me explain what is an otzar beis din. Literally, the words mean “a storehouse operated by beis din.” Why would beis din operate a storehouse? Is this some type of gemach or warehouse for impounded goods, or perhaps a place where beis din stores people who are recalcitrant, denying the need to follow its rulings? Although these might be good ideas, they have nothing to do with an otzar beis din, which is a halachically approved method of distributing shmittah produce.

The owner of a vineyard is not required to produce wine for me; he is only required to allow me to harvest the grapes myself. If I do not have the equipment or expertise to press and process grapes into wine or olives into oil, I will be unable to utilize my rights to these fruits. Similarly, although I have a right to travel from Yerushalayim to pick citrus, mangos and bananas growing along the coast of the country, it is not that convenient for me to go. How, then, can I possibly utilize shmittah produce?

Enter the otzar beis din! Beis din represents the consumer and hires people to gather the fruit, crush the grapes into juice and the olives into oil, ferment the juice into wine, package the product, and distribute it to the consumer. The otzar beis din acts as the consumer’s agent and hires pickers, truckers, and other laborers; rents wine production equipment; purchases the bottles; produces shmittah fruits, wines and oils; and delivers them to a convenient distribution center near my house.

Similarly, since it is inconvenient for a resident of Yerushalayim to travel to an orchard in the northern part of Israel or along its coast to pick oranges and bananas, the otzar beis din picks and transports them to the consumer. All the other halachos of shmittah apply to this produce, except that many authorities rule that produce distributed via otzar beis din may be weighed and measured.

Obviously, the otzar beis din cannot expect the pickers, truckers, and other laborers to work as unpaid volunteers, nor can they use the production equipment without paying rent. Similarly, the managers who coordinate this project are also entitled to a wage for their efforts. The otzar beis din divides these costs among the consumers. However, no charge is made whatsoever for the fruit, which is hefker. The money that changes hands is payment only for the labor and other costs involved. Thus, otzar beis din products should cost less than regular retail prices for the same items.

In a modern otzar beis din, the grower plants everything before shmittah and is given extremely detailed instructions regarding what he may and may not do during shmittah (Katif Shvi’is pg. 126). The grower must allow any shmittah observant person to enter the field or orchard and help himself to the produce (Mishpetei Aretz pg. 103).

Usually, the grower has agreed in advance to a price for his produce, which he will receive, regardless of the quality of the produce. The grower must understand that this price is not a purchase of the produce, but compensation for his out-of-pocket expenses, including compensation for his time.

Conclusion

Just as observing the seventh day, Shabbos, demonstrates our beliefs in the Creator, so too, observing every seventh year as shmittah demonstrates this faith. For the modern farmer, observing shmittah is indeed true mesiras nefesh, since, among the many other concerns that he has, he also risks losing customers who have been purchasing his products for years. For example, a farmer may be selling his citrus or avocado crop to a distributor in Europe who sells his produce throughout the European Community. If he informs his customer that he cannot export produce during the shmittah year, he risks losing the customer in the future.

Of course, since a Jew realizes that Hashem provides parnossah and that observing a mitzvah will never hurt anyone, a sincerely observant farmer obeys the Torah dictates, knowing that Hashem attends to all his needs. Indeed, recent shmittos have seen numerous miracles rewarding observant farmers in this world for their halachic diligence. Who can possibly imagine what reward awaits them in Olam Haba!