The Heter Mechirah sent shock waves through the rabbinic community.On the one hand, many felt that it was a brilliant solution to a desperate situation. After all, it was similar to other "ha'aramot" (legal fictions), used to prevent a situation in which the halachah now harms, rather than helps, a group or an individual. It was similar to the widely practiced custom of selling one's chametz (leaven) to a non-Jew for Passover (a practice which also has its detractors, but is accepted by most). Moreover, there was the centuries old precedent of the Hebron community. On the other hand, many felt that this was a betrayal of the sanctity of the Land, as well as of the the laws of Shemitttah. It was, in essence, not a legal fiction, but an uprooting of an entire mitzvah. Besides this, there is a well established halachah that it is prohibited to sell land to a non-Jew in Eretz Yisrael. The opposition strengthened when the newly formed Chief Rabbinate adopted the Heter Mechirah as official policy. Many rabbis were vehemently opposed to that institution, as it brought religion and politics too close together, and it put a rabbinic stamp of approval on the Zionist leadership and its policies, which were secular in the extreme. One prominent Jerusalem rabbi said "Rabbi Kook's love of Zion has caused him to lose his mind, and remove him from obeying his Creator's mind". Even if the Heter Mechirah is valid, it would give de-facto recognition to the secular leadership.
Supporters of the Heter Mechiah countered with their own arguments. First of all, Shemittah was, according to the vast majority of opinions, and thus ruled in the Shulchan Aruch, no longer Biblical, and therefore subject to leniencies in an emergency. (To violate a Biblical law, one would need an actual life and death situation. A rabbinic law only needs great pain or hardship). In the current situation, the farmers could technically ignore shemittah. A legal fiction could certainly be employed in order to keep the "letter of the law" since it was doubtful if it really needed to be kept in the first place. Hillel had used a legal fiction to circumvent the cancellation of debts at Shemittah, since it had become obvious that many poor people were unable to secure desperately needed loans since the rich were afraid of losing their money come Shemittah. Furthermore, according to a significant minority of opinions, Shemittah in the present day is not even rabbinic law, but only custom. As to selling land in E.Y. to a non-Jew, many rabbis interpreted that to mean specifically an idolater. There might be no prohibition in selling the land to a non-Jew who was clearly monotheistic, such as a Muslim or Druze. (In the most recent Heter Mechirah, the land was sold to a Noachide!). Also, was a one-year sale truly a sale, in terms of violating the prohibition? Rabbi Kook further "tweaked" the contract of sale, so that the land was not actually sold, but merely the trees and the soil around its roots. Rabbi Kook only wanted the Heter Mechirah employed for essential crops; not private gardens or flowers, which one could live without. Some, especially the late Sepharadic Chief Rabbi, Ovadia Yosef (with whom I was very close), opined that the Heter was usable for all under the present circumstances. He considered Shmittah to be only a custom today, as the agricultural areas are too far from the urban centers, making the original practice of everyone being able to just come and take, impractical. The opponents of the Heter Mechirah were unsatisfied. There were too many "ifs". Besides, there were, and are, a few rabbis who consider Shemittah as remaining Biblical, despite the lack of the Jubilee year. Was the situation truly one of life and death? Or were the proponents putting ideology ahead of halachah?
The rejection of the Heter Mechirah by most Hareidi (ultra Orthodox) authorities left the question open; "how are we to function without agriculture?" Another solution was found, and accepted, called the "Otzar Beit Din" (the storehouse of the Court). Proponents claimed that it solved at least the most pressing problems. One often hears "I don't accept the Heter Mechirah; I really observe Shemittah through Otzar Beit Din". Many who DO accept the Heter Mechirah consider Otzar Beit Din as nevertheless preferable. However, some (especially Rabbi Ovadia Yosef) considered the solution as worse than the problem. (This is also my view). What, exactly, is Otzar Beit Din? What are its advantages and disadvantages? That will be my next post.
Supporters of the Heter Mechiah countered with their own arguments. First of all, Shemittah was, according to the vast majority of opinions, and thus ruled in the Shulchan Aruch, no longer Biblical, and therefore subject to leniencies in an emergency. (To violate a Biblical law, one would need an actual life and death situation. A rabbinic law only needs great pain or hardship). In the current situation, the farmers could technically ignore shemittah. A legal fiction could certainly be employed in order to keep the "letter of the law" since it was doubtful if it really needed to be kept in the first place. Hillel had used a legal fiction to circumvent the cancellation of debts at Shemittah, since it had become obvious that many poor people were unable to secure desperately needed loans since the rich were afraid of losing their money come Shemittah. Furthermore, according to a significant minority of opinions, Shemittah in the present day is not even rabbinic law, but only custom. As to selling land in E.Y. to a non-Jew, many rabbis interpreted that to mean specifically an idolater. There might be no prohibition in selling the land to a non-Jew who was clearly monotheistic, such as a Muslim or Druze. (In the most recent Heter Mechirah, the land was sold to a Noachide!). Also, was a one-year sale truly a sale, in terms of violating the prohibition? Rabbi Kook further "tweaked" the contract of sale, so that the land was not actually sold, but merely the trees and the soil around its roots. Rabbi Kook only wanted the Heter Mechirah employed for essential crops; not private gardens or flowers, which one could live without. Some, especially the late Sepharadic Chief Rabbi, Ovadia Yosef (with whom I was very close), opined that the Heter was usable for all under the present circumstances. He considered Shmittah to be only a custom today, as the agricultural areas are too far from the urban centers, making the original practice of everyone being able to just come and take, impractical. The opponents of the Heter Mechirah were unsatisfied. There were too many "ifs". Besides, there were, and are, a few rabbis who consider Shemittah as remaining Biblical, despite the lack of the Jubilee year. Was the situation truly one of life and death? Or were the proponents putting ideology ahead of halachah?
The rejection of the Heter Mechirah by most Hareidi (ultra Orthodox) authorities left the question open; "how are we to function without agriculture?" Another solution was found, and accepted, called the "Otzar Beit Din" (the storehouse of the Court). Proponents claimed that it solved at least the most pressing problems. One often hears "I don't accept the Heter Mechirah; I really observe Shemittah through Otzar Beit Din". Many who DO accept the Heter Mechirah consider Otzar Beit Din as nevertheless preferable. However, some (especially Rabbi Ovadia Yosef) considered the solution as worse than the problem. (This is also my view). What, exactly, is Otzar Beit Din? What are its advantages and disadvantages? That will be my next post.
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