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Part one: the laws of shemittah
A. Introduction to Jewish Law
B. The nature of the obligation of Shemittah today
C. Forbidden agricultural activities during the Shemittah year
D. Upon whom/what does the obligation devolve?
E. Tosefes Shviyis
F. Hefker – abandonment of ownership
G. Determining to which year a crop belongs
H. Sefichim- produce grown spontaneously
I. Kedushas Sheviyis
J. Prohibition on selling Shemittah produce
K. Dmei Sheviyis
M. The institution of Otzar Beis Din
N. Boundaries of the land of Israel
O. Counting the Shemittah cycle
Shemittah: The Jewish Sabbatical Year
Class of 2003
Combined Course and Third year paper
The laws pertaining to the Jewish Sabbatical year are explored. The laws derive from a Biblical commandment to let the land (of Israel) lay fallow every seventh year. The first part of this paper is an exposition of the laws, including the types of agricultural work proscribed and the different prohibitions associated with produce grown during the Sabbatical year. The second part presents an analysis of the controversial “hetter mechira,” the legal device developed by Rabbinic authorities in the 1890s, whereby farmland is sold to a non-Jew to avoid the harsh constraints imposed by observance of the Sabbatical year.
Table of Contents
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . 4
Part I: The Laws of Shemittah . . . . . . . . . . . . . . . . 11
A. Introduction to Jewish Law . . . . . . . . . . . . . . 12
B. The nature of the obligation today . . . . . . . . . . 15
C. Forbidden agricultural activities. . . . . . . . . . . 21
D. Upon whom/what does the obligation devolve?. . . . . . 23
E. ^ . . . . . . . . . . . . . . . . . . . 25
F. Hefker . . . . . . . . . . . . . . . . . . . . . . . . 28
G. Determining to which year a crop belongs . . . . . . . 33
H. Sefichim . . . . . . . . . . . . . . . . . . . . . . . 34
I. ^ . . . . . . . . . . . . . . . . . . . 38
J. Prohibition on selling Shemittah produce . . . . . . . 41
K. Dmei Sheviyis. . . . . . . . . . . . . . . . . . . . . 43
L. Biyur. . . . . . . . . . . . . . . . . . . . . . . . . 44
M. The institution of Otzar Beis Din. . . . . . . . . . . 46
N. The boundaries of the land of Israel . . . . . . . . . 47
O. Counting the Shemittah cycle . . . . . . . . . . . . . 49
Part II: The Hetter Mechira . . . . . . . . . . . . . . . . . 57
1. The Rabbinic status of Shemittah . . . . . . . . 64
2. Whether sale of land to a non-Jew “cancels”
the sanctity of the land . . . . . . . . . . . . 65
3. Prohibition on sale of the Holy Land . . . . . . 69
(i) Applicability to Muslims . . . . . . . . 72
(ii) Applicability to a temporary sale. . . . 78
4. Halachic validity of sale not recorded in the
Land Registry . . . . . . . . . . . . . . . . . 87
5. Shaas Hadechack: the effect of strained
circumstances on halachic jurisprudence . . . . 91
(i) In general . . . . . . . . . . . . . . 93
(ii) Yannai’s call to sow the land . . . . . 96
(iii) In cases of doubt (Sabbatical cycle). . 102
6. Is the hetter mechira an impermissible legal
device (ha’arama)? . . . . . . . . . . . . . . . 104
7. New problems with the hetter mechira . . . . . . 110
The observance of Shemittah in Israel today . . . . . . . 111
The commandment to let the land lie fallow is seemingly a simple isolated commandment in the Bible. During the seventh year, the land must rest, and what grows of itself is subject to certain dietary restrictions. However, even a perfunctory review of the rich literature on the subject reveals the deeply complex legal issues and deeply meaningful ideological concepts this commandment present. Shemittah1, the Jewish Sabbatical Year, has long been recognized in Jewish scholarship as embodying the fundamental aspects of the Jewish philosophy of life: human dignity, freedom, equality, trust in God, rejection of the worship of property, support for the poor, and deemphasis of the mundane to free oneself for spiritual pursuits.
The most natural place to begin is the Bible itself, where Shemittah is discussed in several passages:
Six years shall you sow your land and gather in its produce. And in the seventh, you shall leave it untended and unharvested, and the destitute of your people shall eat, and the wildlife of the field shall eat what is left; so shall you do to your vineyard and your olive grove.
Exodus 23: 10-11
God spoke to Moses on Mount Sinai, saying: Speak to the Children of Israel and say to them: When you come into the land that I give you, the land shall observe a Sabbath rest for God. For six years you may sow your field and for six years you may prune your vineyard; and you may gather in its crop. But the seventh year shall be a complete rest for the land, a Sabbath for God; your field you shall not sow and your vineyard your shall not prune. The aftergrowth of your harvest you shall not reap and the grapes you had set aside for yourself you shall not pick; it shall be a year of rest for the land. The Sabbath produce of the land shall be yours to eat, for you, for your servant and for your maidservant; and for your laborer and for your resident who dwell with you. And for your animal and for the beast that is in your land shall all its crop be to eat. You shall count for yourself seven cycles of sabbatical years, seven years seven times; the years of the seven cycles of sabbatical years shall be for you forty-nine years. You shall sound a broken blast of the shofar, in the seventh month, on the tenth of the month; on the Day of Atonement you shall sound the shofar throughout your land. You shall sanctify the fiftieth year and proclaim freedom throughout the land for all its inhabitants; it shall be the Jubilee Year for you, you shall return each man to his ancestral heritage and you shall return each man to his family…The land will give its fruit and you will eat your fill; you will dwell securely upon it. If you will say: What will we eat in the seventh year? Behold! We will not sow and not gather in our crops! I will ordain My blessing for you in the sixth year and it will yield a crop sufficient for the three-year period. You will sow in the eighth year, but you will eat from the old crop; until the ninth year, until the arrival of its crop, you will eat the old.
Leviticus 25: 1-12;19-22
At the end of seven years you shall institute a remission. This is the matter of the remission: Every creditor shall remit his authority over what he has lent his fellow; he shall not press his fellow or his brother, for the Lord’s remission has been proclaimed…If your brother, a Hebrew man or woman, will be sold to you, he shall serve you for six years, and in the seventh year you shall send him away from you free. But when you send him away free, you shall not send him away empty-handed. Adorn him generously from our flocks, from your threshing floor, and for your wine-cellar, as the Lord, your God, has blessed you, so shall you give him. You shall remember that you were a slave in the land of Egypt and the Lord, your God, redeemed you; therefore, I command you regarding this matter today.
Deuteronomy 15: 1-2; 12-15
As the passages indicate, there are three different components of Shemittah, the Sabbatical year: the obligation to let the land lie fallow, the obligation to set a Jew who has been sold as a servant free, and the annulment of debts so that creditors are legally barred from collecting money owed to them. Yovel, the Jubilee year, has an additional feature: hereditary properties are returned to the original owners or their heirs.
Throughout the centuries of Jewish scholarship, the purpose of the Sabbatical year is discussed and pondered. Maimonides sets forth the most straightforward and natural reason for the commandment: let the land rest in order that the land be rejuvenated.2 He points to the benefit the land derives from a year of laying fallow. Others, however, are not satisfied with this explanation. They point to passages in the Bible describing the consequences of not keeping the laws of the Sabbatical year – the exile of the Jewish people from the land.3 If the purpose is the rejuvenation of the land, then the punishment should not be exile of the Jewish people, but rather the natural consequence of depriving the land of its rest - land that is not fertile. Furthermore, the exile of the Jewish people, and the inhabitation of the land by non-Jews who will certainly not observe the Sabbatical year does not serve the purpose of rejuvenating the land!4
Two major moral components of the commandment are suggested by scholars: support for the poor5 and the rejection of worship of property. Many of the laws of Shemittah are aimed at providing equal access to all. For example, a field owner is obliged to relinquish ownership of the produce that grows of its own accord in the seventh year. He must not lock or otherwise bar access to his field, in order that the produce be freely accessible to all. Some of the laws pertaining to the sanctity of such produce place limitations on its sale in order that it should be accessible at a low cost to all. This purpose of supporting the poor is even more pronounced in the closely related laws of Yovel. During the Jubilee (Yovel) year, hereditary properties are returned to their original owners.6 This requirement, which took effect every fifty years, served the purpose of avoiding accumulation of land in the hands of a few wealthy land owners, and ensured there would be no landless population. Yovel served to restore the property to the poor man who was forced to sell it, and restore the freedom to a slave who was forced to sell himself for want of money.
Others7 discuss how the requirement that one relinquish ownership during the Sabbatical year teaches not to place too much stock in ownership. The laws of the sabbatical year teach that not only are the powers of the individual subsumed under the general rights of the community, but also that individuals do not have the right of exclusive dominance over their own property. This notion is reflected in the verses that require that the produce of this year be available to all people and animals to eat. This theme is also apparent in the laws pertaining to the sanctity of produce grown during the Sabbatical year, which prohibit the disposal or waste of such produce. As destruction is perhaps the clearest expression of ownership, refraining from destroying property is the clearest acknowledgment that the property does not really belong to us.
On a more spiritual level, the observance of the laws of the Sabbatical year is intended to cultivate a sense of trust in God, and serve as a testimony that everything belongs to God. The verses describing the Sabbatical year plainly indicate that it is a test of supreme trust: “The land will give its fruit and you will eat your fill; you will dwell securely upon it. If you will say: What will we eat in the seventh year? Behold! We will not sow and not gather in our crops! I will ordain My blessing for you in the sixth year and it will yield a crop sufficient for the three-year period.”8 It is meant to be a test of faith on the national level as well as on the personal level, that God will provide in economic matters. Rabbi S.R. Hirsch writes9 that the observance of the Sabbatical year is the greatest act on the part of a whole nation of the recognition that God is the sole, one and real Owner and Master of their land, inasmuch as in that year they lay it in homage at His feet and refrain from exercising their rights of ownership. The year is meant to remind the Jewish people of God’s ownership of the Earth and the fact that all of its produce is only as a result of His allowing it to be produced, as reflected in the verse stressing, "for the Land is Mine."10
In the words of Dr. I. Grunfeld11, the Sabbatical and Jubilee years not only introduce morals, but also metaphysics into economics. Similar to the weekly Sabbath, the Sabbatical year is intended to remind the Jewish people of God’s creation of the world, which in turn reflects on His ability to affect events on earth and perform miracles at will.12 By renouncing exercise of purposeful control of natural objects and forces, the Jew proclaims God as the source of all power – one day in seven, and one year in seven. The Bible indicates that the rain and productivity of the soil of Israel are conditioned on the Jewish people’s observance of the law in general, and the laws of Shemittah in particular.13 The produce of the land of Israel is thus not only conditioned by agricultural and other physical elements, but by the moral factor of the Jewish people’s observance of the law.
In more recent times, the spiritual rejuvenation that observance of Shemittah affords has been stressed. By forcing a Sabbatical year (in the academic sense), God could insure that people would have time to study Torah14 and to refocus their energies on spiritual matters. As Shemittah is described in the Bible as a “Sabbath for God,” its purpose is not only to refrain from certain activity, but also to set aside time for spiritual pursuits. This goal has actually come to fruition in Israel today, as farmers who commit to observance of Shemittah participate in programs of study for the twelve months of the Sabbatical year.
This remainder of this paper will focus on the agricultural, as opposed to fiscal aspects of the Shemittah year: the requirement to let the land lay fallow. The paper is divided into two parts. Part I is a brief exposition of the laws of Shemittah. Part II presents an analysis of the controversial hetter mechira, the legal device developed by Rabbinic authorities in the 1890s, whereby farmland is sold to a non-Jew to avoid the harsh constraints imposed by observance of Shemittah.