10/07/2007

Why Do We Need the ‘Heiter Mechirah’ this Year?

by Rabbi David Stav

[translation is mine, as are mistranslations; Rabbi Stav is the Rabbi of the city of Shoham, is a leader of the Tzohar rabbinic organization, and is a major force behind Tzohar's initiative to create an alternative Kashrut organization, to compete with the Chief Rabbinate. This is not an endorsement or a rejection of his arguments or conclusions.]

Encountering the septennial ‘heiter mechirah’ ought to leave every observant Jew feeling uneasy. We strive, religiously and nationally, to fulfill the Torah’s commandments down to the last detail, especially a mitzvah as beloved as Shemittah, which serves as a socio-religious paradigm for the relationship between man and beast, man and society, and man and God. Many of us are familiar with the words of Our Sages, echoing the Torah and the words of the Prophets, which connect failure to observe Shemittah with exile from the Promised Land. Yet the heiter mechirah, even if it covers the appropriate halakhic bases, literally pulls the land out from beneath our feet. Thus, the feelings of unease are well explained.

It is important to emphasize that we are, first and foremost, men of halakha and therefore must determine, before all else, whether this dispensation has halakhic validity. Afterwards, it must be ascertained whether there is a pressing need to constrain the halakha in a manner inconsistent with its Biblical spirit and goals. A detailed analysis of the halakhic validity of the heiter mechirah is beyond the scope of this article. While it is worth mentioning that Shemittah nowadays, according to the majority of halakhic authorities, is of Rabbinic origin, we must not forget that there is a handful of medieval authorities, including Me’iri and Ra’avad, who believed that Shemittah does not apply nowadays at all, and is observed only as a supererogatory act of piety. Our Rabbis have taught that under extenuating circumstances, opinions which are not generally accepted as normative can be relied upon. Thus, if we combine the minority opinion that Shemittah need not be observed at all nowadays with those that rule that the ‘heiter mechirah’ sale is effective, those who rely on the sale definitely have whom to rely upon.

Furthermore, this obviates the issue of the Rabbinic decree against ‘sefichin’ (produce from annual plants, which the Rabbis banned out of concern that farmers would plant them during Shemittah but claim that they grew wild), since we have a general principle that we rule leniently when there is a case of doubt regarding a Rabbinic prohibition. In this instance, the prohibition is based on several Rabbinic laws, one on top of the other (like the Rabbinic prohibition against sefichin on top of the Rabbinic status of Shemittah in general). Thus, there is certainly room to be lenient.

Although the above-outlined methodology seems like a type of legal fiction, in this regard it is no different than its predecessors like the ‘heiter iska’ which allows banks and investors to obviate the unanimously Biblical prohibition against charging interest, or permission for the ‘mechirat chametz’ before Pesach, obviating another unanimously Biblical prohibition, or Hillel’s ‘prozbul’ permit which allows lenders to avoid forgiving loans at the end of the Shemittah year.

When the issue is the prohibition against interest or chametz and is directly relevant to the sustenance of society and the economy, or, in simpler terms, when the issue existentially threatens the community’s livelihood, Israel’s giants knew how to find the proper halakhic approach to insuring the people’s sustenance in accordance with Jewish law. This being the case, one may legitimately ask what fatal flaw was found in the heiter mechirah which, after all, obviates a possible Rabbinic prohibition. It is hard to find a satisfying answer, unless the question of the econocim wellbeing of the country’s farmers simply does not bother or preoccupy its opponents. The inquirer may persist and ask if it is not true that although the heiter mechira was once necessary, when the entire Jewish community in Israel was threatened, but that today, when agriculture does not play such a central role in national life, the farmers’ problems can be solved by a system of monetary arrangements.

My answer to that question is severalfold, but, in short, the need for the heiter mechira is greater than ever for the following reasons:

a) Today as well, thousands of families earn a living from agriculturally-based industries (including processing and transporting), and failure to implement a heiter mechira can destroy their livelihood for years to come. Furthermore, the scope of the problem is not just a few thousand families, as important as that may be. No self-respecting sovereign nation can afford to forego economic independence and basic production. This would be the case if Israel would lose its export markets by stopping production during Shemittah.

b) Neglecting property will create a situation whereby Arabs control the land. This is a neglect of the mitzvah to settle the Land of Israel and is empowers non-Jewish control of the land, thereby violating the prohibition of ‘Lo Techanem’.

c) Preferring Israeli or Palestinian Arab produce at the expense of Israeli Jewish produce supports, directly or indirectly, their foothold in the land and our enemies’ foothold in the land. We recently heard Hamas wishing that every year was a Shemittah year so that Jews could continue strengthening Gaza’s economy. Do we really want to fund terror organizations in order to avoid a debatable Rabbinic prohibition?

d) All agree that many farmers will not obey the laws of Shemittah if no heiter mechira is available. The practical ramifications of this fact are that produce that is prohibited under the ban on sefichin will enter into the market. In such a situation, many markets and food manufacturers will not be kosher. Many people will not be deterred by this, and will consume non-kosher food. The ultimate result would be the erosion of the Chief Rabbinate’s kosher certification network. Restaurants and food outlets that know that they will be unable to obtain kosher certification will simply opt to completely forego any kosher standards. For one who already views heiter mechira produce as ‘treif’, this would make no difference, because he treats the entire system as a failure. However, one who is aware that the Chief Rabbinate’s kosher-certification network is what prevents the entire country from reverting to non-kosher consumption has a responsibility toward all of Israel to ensure that the relatively good and stable system currently in place remains. Is it possible that people do not know or do not care that the Chief Rabbinate’s kosher-certification network would collapse? Do they not care that many Jews in Israel, the majority of whom consume only kosher food, will start eating non-kosher if there are no readily available alternatives? Is it possible that the shemittah import industry is guided by ulterior motives that can cause the ruin of others?

There is no doubt in my mind that Israel’s greatest sages, if they were aware of the repercussions of disqualifying the heiter mechira, would behave differently and would understand that, at the very least, the broader public should be allowed to rely on it.

It is worth mentioning that the Chazon Ish (R’ Avraham Yeshaya Karelitz, major halakhic authority during the first half of the 20th Century), who vehemently opposed the heiter mechira, was sensitive to the plight of Israel’s farmers and ruled leniently in order to enable them to grow their produce during shemittah and encouraged its consumption. It is unfortunate that those who consider themselves his followers are busy certifying produce from Jordan and territories hostile to Israel, and do not attempt to nurture Israeli agriculture in a manner that befits a representative of God’s Torah.

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