[Avodah] Heter Mechira and Otzar Beis Din

[Moshe Feldman]

On 8/19/07, Freedenberg Family <free at 014.net.il> wrote on Areivim:
> I don't understand why there are some people who are fighting against what
> is a positive change for the better in shmittah observance.
>. . ..
> http://www.israelnationalnews.com/News/News.aspx/123421
>
> an excerpt:
>
> "The Chief Rabbinate announced last year its plan to reduce its reliance on
> the controversial "land sale dispensation" for the upcoming Shemittah "to a
> minimum."  At the same time, religious-Zionist circles began to implement a
> solution heretofore observed on a minor scale in some hareidi circles, known
> as the Otzar Beit Din; in its new format, it also involves minimum reliance
> on the heter dispensation.
>
> With the heter mechirah appearing to lose validity, leading
> religious-Zionist rabbis have now begun to "fight back." They say the heter
> dispensation is not only still valid, but is as necessary as it was when it
> was first formulated."

The article actually states that these DL rabbanim are in favor of
Otzar Beis Din (OBD), but want to make sure that the public realizes
that when OBD produce is unavailable (for example, many vegetables
cannot be provided from OBD during much of the shmitta year), it is
preferable to purchase heter mechira produce from Jewish farmers than
to purchase produce from non-Jewish farmers (even not from
Palestinians).  The reason for this is that when consumers purchase
from non-Jewish farmers, the Jewish farmers are put out of business
because it is economically unfeasible to run a farm 6 years out of 7.
 Moreover, once non-Jewish farmers (e.g., from Jordan) win a share of
the market, they tend to retain it even during non-Shmitta years.

When Jewish farmers are put out business, the Jewish hold on outlying
areas of Eretz Yisrael is weakened--in some cases, Arabs grab lands
abandoned by Jewish farmers.  Thus the issue of lo techanem arises--if
the Chazon Ish was worried about a technical violation of this halacha
which does not lead to a real achiza in the land by Arabs, surely we
should worry about a violation which leads to a real achiza b'karka by
Arabs.  This view is adopted by many of the rabbanim, such as R.
Yaakov Ariel (one of the leading DL poskim), who are davka pushing
OBD.  R. Neria Guttal wrote about this at length and pointed out that
50,000 dunams of farms were established in Jordan last Shmitta to
supply produce, and those farms continued exporting to Israel during
the subsequent 6 years.  Rav Yaakov Ariel (in the Katif Shevi'it
volume distributed to all those who joined "Otzar Ha'Aretz," the OBD
of the DL points out that a consumer should not look just at whether
he individually keeps Shmitta, but how his actions impact the nation
as a whole.

A number of DL rabbanim (e.g., Rav Mordechai Eliyahu, R. Shaul
Yisraeli--in the Katif Shevi'it volume) believe that it is not clear
that OBD is preferable to Heter Mechira (HM).  OBD relies on many many
kulos (many of which have flimsy basis in gemara & rishonim) which the
Chazon Ish relied upon given that Shmitta is derabbanan.  Rav Shaul
Yisraeli pointed out that at the end of the day, the spirit of Shmitta
is not being observed--after all, the farmers are making a profit
based on their sale of produce for which they put in great efforts.
Technically, they are agents of Beis Din and they do melachos
derabbanan, etc. but this is a far cry from the Torah's call to desist
from working the land during Shemitta.  (Note that the Tosefta which
describes OBD merely refers to BD's efforts to harvest the crops, not
to organize the process of growing the crops.  Certainly, the farmers
were not the agents of the Beis Din to farm the land and did not
benefit economically from the farming.)

Essentially, OBD is a ha'arama, and the only difference between OBD
and HM is that OBD does the ha'arama on a piecemeal basis while HM
does it in one fell swoop.  Rav Shaul Yisrael commented that there is
halachic justification for the ha'arama: given that the promise that
the land will produce crops for three years applied only when Shmitta
was de'oraisa, had Chazal been around to create a takanah for Shmitta
today given modern realities, they would have made a zeicher
l'shmitta; and this is exactly what the ha'aramos do.  Note that Rav
Kook made sure that there would be a zeicher l'shmitta--he permitted
the HM only for commercially necessary purposes and otherwise required
farmers to not farm their land at all.  CI creates a zeicher l'shmitta
via the OBD as it gives us a taste of shmitta, albeit not the real
thing.

Kol tuv,
Moshe (who signed up for Otzar Ha'aretz)