[Avodah] Heter mechira

[Zev Sero]

Cantor Wolberg wrote:
> I'm curious what some of your reactions are to the concept of heter 
> mechira. It should be pointed out that the Gemara is replete with 
> examples of avoiding a Halachic prohibition by transferring title of 
> ownership of a particular item (Maaser Sheni 4:5, Tosefta Pesachim 
> chapter 2, Beitzah 17a, and Nedarim 48a). In fact, the Gemara (Bechorot 
> 3b) even encourages selling an animal to a non-Jew before it gives birth 
> for the first time to avoid the restrictions regarding a Bechor. 
> Moreover, Mechirat Chametz has developed into a yearly routine in 
> observant communities, though it is not quite the same.

There are many distinctions between the heter mechira for shmitah and
the cases of chametz and behema hamevakeret.

1. Selling land in EY to a goy is assur.  Perhaps the issur isn't
very strong, but it is an issur, unlike selling chametz or pregnant
animals.  That means you're starting out with a negative; it's not
pareve.

2. It's not clear that you are allowed to do melacha on a goy's land
in EY.  Nor does everyone agree with the Shulchan Aruch that the
produce of a goy's land is exempt from shmita.  OTOH with chametz and
behema the solution is lechol hadeot.

3. What if the goy doesn't want to sell it back?  Are you prepared to
part with it permanently?  In the case of chametz and behema, if the
goy wants to keep it and give you the money, you would be delighted.
You can always use the money to buy fresh chametz or another cow if
you want to, or you can use it for something completely different.
You have no attachment to that particular loaf of bread or even that
particular cow.   But is a farmer really willing to sell his farm
permanently, bifrat to an Arab?

4. In the case of bechor there really is no better solution.  If the
bechor is born it will be a constant michshol for people until it
finally develops a mum, which could take years if it's lucky.  As for
chametz, there is no mitzvah at all in destroying it, and there's
certainly no increase in mitzvah when one destroys more rather than
less.  Burning a few crumbs on Erev Pesach is just as good a mitzvah
as pouring out a whole warehousefull of whiskey.  So while not selling
the chametz won't lead to an actual averah, it won't lead to an
increase in any mitzvah either, so there's no good reason to refrain.
But shmitah is a positive mitzvah, "veshavta ha'aretz", which if it
can be kept should be.

-- 
Zev Sero               Something has gone seriously awry with this Court's
zev at sero.name          interpretation of the Constitution.
                       	                          - Clarence Thomas