Rabbi Eliad Skuri
Former Rosh Kollel in Kansas City
With the advent of the shmitah year here in Eretz Yisrael, we were confronted with a whole slew of halachic questions. Although most of these are practical issues, shmitah also introduces a number of universal halachic principles.
One of these basic questions is dependent on a major machloket concerning shemitah’s scope – between three of the leading Torah giants of 16th century Tzefat. On one side of the argument was Rav Yosef Karo, author of the Shulchan Aruch and the Beit Yosef. His ruling was disputed by the Mabit (Rav Moshe MiTrani) and his son, the Maharit (Rav Yosef MiTrani).
The question was whether a non-Jew’s ownership of land in Eretz Yisrael overrides kedushat shvi’it (literally, the sanctity of the seventh – i.e. the sanctity associated with shmitah produce). In other words, if a non-Jew grows fruit in Eretz Yisrael during a shmitah year, is the fruit included in the mitzvah of shmitah? If so, the fruit has kedushat shvi’it like a Jewish farmer’s fruit. Alternatively, does the fact that the plot in question is owned by a non-Jew somehow “prevent” shmitah from applying to the plot and its produce? If the latter is the case, the produce does not have kedushat shvi’it, but trumot u’ma’asrot (tithes) must be separated – as in a regular year (assuming that a Jew finished the process).
The Shulchan Aruch (24), who based his opinion on the Rambam, ruled that the second approach is valid. In other words, if a non-Jew owns land in Eretz Yisrael, kedushat shvi’it does not apply; the produce is not hefker (loosely, ownerless); and, if relevant, trumot u’ma’asrot must be separated.
In contrast, the Mabit held that even payrot nochri (the produce of a non-Jew) have kedushat shvi’it, and trumot u’ma’asrot do not apply. In fact, during Shmitah 3034 (1573), he initially acted in accordance with this ruling. However, the chachamim of Tzefat arose and declared that everyone was obligated to follow the Beit Yosef in this regard.
Actually, the machloket between the Beit Yosef and the Mabit was based on an earlier and more fundamental machloket, which has implications for the entire Torah. This prior machloket is summed up by the Minchat Chinuch on Sefer HaChinuch (80):
“And I am doubtful whether or not the mitzvah of shmitah is akrakapta digavra (literally, on the man’s head) – that Rachmana commanded him lihafkir (to repudiate ownership of) his fruit during shvi’it, and he is obligated to carry this out and lihafkir. And if he repudiated ownership, it is hefker, but if he did not repudiate ownership, it is not mufkar. And it is clear that the owner transgresses a positive mitzvah. In any event, his field is not hefker, even though he transgressed Hashem’s decree. And if so, another person is not allowed to pick from the field, and if he did pick, it is gezel (stealing).
“Or, this hefker of the land during shmitah – the owner does not have to repudiate ownership. Rather, it is afkaata diMalka (roughly, expropriation of the King); it is hefker no matter what. And anyone can pick, and if the owner locks his vineyard, he is stealing from the public.”
Thus, there are two possible ways of understanding the concept of hefker during the shmitah year:
Hefker is afkaata diMalka. In other words, all the fields in Eretz Yisrael are automatically expropriated by Heaven during the shmitah year. A person’s private ownership of his produce is instantaneously cancelled, and anyone can come pick the produce, regardless of the owner’s wishes. Of course, the owner can physically prevent others from gaining access to the produce by locking his field. However, in doing so, he is thereby stealing from them.
The Torah commanded the owner to repudiate ownership. In order to observe the positive mitzvah of shmitah, he must actively repudiate ownership of his fields and produce during the seventh year. But if he chooses to disregard this mitzvah and avoids repudiating ownership, the fields and the produce are not hefker. Thus, he himself rejects a positive mitzvah, and one who picks the produce without his express permission has committed gezel.
According to the Minchat Chinuch, the first view reflects the opinion of the Mabit and the Maharit. Since shmitah is divinely and automatically applied to the land – regardless of the owner’s wishes – kedushat shvi’it pertains to all the fields in Eretz Yisrael – even those that are owned by a non-Jew. However, the Beit Yosef accepted the second view and believed that shmitah is not automatic. Instead, shmitah is the responsibility of the Jewish landowner. Therefore, shmitah does not apply in the case of a non-Jewish landowner, and trumot u’ma’asrot must be separated from the produce of a nonJew.
We are thus confronted with a fundamental machloket: Are the Torah’s mitzvot applied divinely and automatically? Or, were the mitzvot presented to man, and therefore, they only come into effect when man chooses to accept them? When it comes to shmitah, most authorities concur with the Beit Yosef that the mitzvah belongs to man (i.e. the field’s owner). Hence, we can infer from shmitah that the goal of every mitzvah is to educate and uplift man.
“The mitzvot were only given in order to attach mankind to them.” (Breishit Raba 44:1)
