Rav Yaakov David Willowski (1845-1913) of Safed, known as the “Ridvaz,” was one of the most vociferous opponents to the hetter mechirah— the temporary sale of land in Israel to a non-Jew in order to avoid the restrictions of working the land during the Shemitah year. More interesting than his Halachic objections to the sale, however, is the philosophical argument that the rabbi of Safed raised.
The stated purpose of the hetter, the Ridvaz wrote, is to uphold the mitzvah of Yishuv Ha’aretz, settling the Land, by allowing the fledgling agricultural settlements in the Land of Israel to grow and prosper. But if the legal sale is indeed effective, then the Land would lose its sanctity and the special agricultural mitzvot — tithes, the Shemitah year, and so on — would no longer apply. And if the Land is not holy, there is no longer a mitzvah to settle the Land. Thus the hetter in effect undermines the very goal it was designed to support!
To paraphrase the Ridvaz: the whole purpose of our return to Eretz Yisraelis to fulfill its special mitzvot and experience its unique sanctity. If we use loopholes and legal fictions to avoid these mitzvot, we may as well be living in Warsaw or New York!
Rav Kook and the Hetter
Despite common belief, Rav Kook was not in fact the author of the hetter mechirah. This legal mechanism was first designed for the Shemitah year of 1889. At that time, Jewish farmers in Eretz Yisrael, whose livelihood depended upon the export of wine and citrus fruits, turned to the leading Halachic authorities in Europe to find a way to avoid the ruin of the fragile industry they were struggling to develop. Were they to let the land lie fallow, the young orchards would suffer greatly, and the export business they had built up would be lost. They also feared that land left fallow could be lost to squatters and thieves. This was particularly problematic due to Ottoman Empire land laws, which allowed ownership of uncultivated land to be challenged by squatters.
Despite common belief, Rav Kook was not in fact the author of the hetter mechirah. This legal mechanism was first designed for the Shemitah year of 1889. At that time, Jewish farmers in Eretz Yisrael, whose livelihood depended upon the export of wine and citrus fruits, turned to the leading Halachic authorities in Europe to find a way to avoid the ruin of the fragile industry they were struggling to develop. Were they to let the land lie fallow, the young orchards would suffer greatly, and the export business they had built up would be lost. They also feared that land left fallow could be lost to squatters and thieves. This was particularly problematic due to Ottoman Empire land laws, which allowed ownership of uncultivated land to be challenged by squatters.
In response to this difficult situation, three prominent rabbis met in Vilna and devised the hetter mechirah, based on similar legal sales to avoid the prohibitions involved with bechorot (firstborn animals) and chametz on Passover. The hetter was approved by famed Halachic authority HaRav Yitzchak Elchanan Spector. However, many prominent rabbis opposed it, including some of the greatest authorities of the time - and the controversy over the hetter mechirah was born.
As rabbi of the town of Jaffa and its surrounding communities, Rav Kook needed to take a position regarding the hetter. While still in Europe, he had discussed the issue with his father-in-law the Aderet, (later chief rabbi of Yerushalayim), and they both decided against supporting it.
But after coming to Eretz Yisrael and seeing first-hand the great need for the hetter, Rav Kook changed his mind and became a staunch supporter of the leniency. Prior to the Shemitah year of 1910, he penned a Halachic treatise in defense of the hetter mechirah, entitled Shabbat Ha’aretz.
The Sanctity of the Land
In his remarks defending the hetter, Rav Kook responded to the Ridvaz’s objection that the hetter undermines its own stated goal — supporting the settlement of the Land of Israel — because selling the Land to non-Jews annuls its sanctity and circumvents its special mitzvot.
This argument, Rav Kook explained, is based on the false premise that the special holiness of Eretz Yisrael is limited to המצוות התלויות בארץ, those mitzvot that only apply in the Land. According to this view, once these special mitzvot are no longer binding, there is no longer any holiness to the Land and no mitzvah to settle it.
But this is not the true outlook of the Torah. Instead, we should compare the mitzvah of settling the Land of Israel to the mitzvah of studying Torah. While it is true that Torah study enables one to learn how to properly discharge all mitzvot, one cannot say that the value of Torah study is only as a preparation to fulfilling mitzvot. In fact, there is an intrinsic holiness in the act of studying Torah. Even when studying subjects which have no current practical application, this study is nonetheless invaluable. As the Sages taught: “One who studies the laws of the Chatat offering is considered as if he offered a Chatat ” (Menachot 110a).
The holiness of the Land of Israel is independent of those mitzvot that may be fulfilled while living there. Just the opposite: the primary holiness of the Land is reflected in the mitzvah to settle it, and the obligation of mitzvot ha-teluyot ba’aretz is an expression of this special holiness. As the Sages taught, merely living in Eretz Yisrael is equal to all the mitzvot in the Torah - and this ‘equation’ includes those mitzvot that only apply in the Land.
Equal to all the Mitzvot
This statement about the overriding value of living in the Land appears in the Sifri (sec. 80) in the context of the following story:
“Rebbe Elazar ben Shamua and Rebbe Yochanan HaSandlar set out to travel to Nitzivim [in Babylonia] in order to study Torah from Rebbe Yehudah ben Beteira. But when they arrived in Sidon, they remembered the Land of Israel. They lifted their eyes, and their tears flowed. They rent their garments and quoted the verse: “You will expel them and dwell in their land” (Devarim 12:29). Then they returned home and declared: Dwelling in the Land of Israel is equivalent to all of the mitzvot of the Torah.”
These scholars had pure motives for leaving Eretz Yisrael. They sought to learn Torah from one of the leading sages of the generation. Yet in the end, they decided that the mitzvah of dwelling in the Land takes precedence. They placed greater value on living in Eretz Yisrael, even at a time when the country suffered from foreign rule and economic hardship. The mitzvah of living in the Land was still in force, even though the Sages of that time found legal loopholes — similar to the hetter mechirah — to lighten the financial burden of certain mitzvot (such as Hillel’s pruzbul, and avoiding tithes by bringing produce into the house by way of the courtyard or the roof (see Berachot 35b)).
Why did these scholars quote this particular verse, “You will expel them and dwell in their land"? Apparently, they noted that the word 'their' is extraneous; it could have just read “and dwell in the land.” They deduced from here that even when the Land of Israel has not been fully released from the control of foreign nations — even when it was still considered “their land,” the land of the Canaanite nations, and many of the land-dependent mitzvot were not yet incumbent — we are nonetheless obligated to dwell in the Land.
This lesson was also valid during the time of Rebbe Elazar ben Shamua and Rebbe Yochanan HaSandlar. Even after the destruction of the Temple, even in a time of foreign rule, the mitzvah of dwelling in the Land is still equal to all the mitzvot.
The author of Kaftor VaFerach (Rav Ishtori HaParchi, 1280-1355) similarly wrote that the sanctity of the Land of Israel is independent of the mitzvotha-teluyot ba’aretz. His proof: why did Yaakov, Yosef, and Moshe all seek to be buried in the Land when it had not yet been conquered and sanctified?
In summary, Rav Kook concluded, it is not only possible to be lenient in our days, it is proper to do so, in order to encourage settlement of the Land. Furthermore, the hetter does not cancel all aspects of the Shemitah year. It only permits those types of agricultural labor that are rabbinically prohibited. Thus the Shemitah year is not completely uprooted. This hetter, Rav Kook explained, is similar to the permission — and obligation — to desecrate the Sabbath in life-threatening situations. As the Sages wrote: “The Torah teaches that we should desecrate a single Sabbath for one whose life is in danger, so that he will be able to keep many future Sabbaths” (Yoma 85b). Similarly, by permitting certain agricultural work now, we will enable the full observance of the Sabbatical year in the future.
(Sapphire from the Land of Israel. Adapted from the Preface to Shabbat Ha’aretz, pp. 61-63 by Rav Chanan Morrison)
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