A Brief History of the Hetter Mechirah
As the Jewish people began to return to Eretz Yisrael in the late 1800s, establishing farms and agricultural settlements, the question of letting fields lie fallow during the sabbatical year became — for the first time in many centuries — a burning issue. With the approach of the sabbatical year of 1889, the Jewish settlers turned to the rabbinate to issue a hetter (permit) to allow them to continue working their lands during the seventh year, so that the young and fragile agricultural settlements would not collapse.
Three respected scholars met in Vilna and designed a hetter mechirah, temporarily selling the land to a non-Jew over the sabbatical year. The hetter was approved by Rav Yitzchak Elchanan Spector, chief rabbi of Kovno and the pre-eminent Halachic authority of the generation.
During the following sabbatical years of 1889, 1896, and 1903, many of the new settlements utilized the hetter. However, a number of highly respected scholars vociferously opposed the leniency. Among the opponents were Rav Yosef Dov Soloveitchik, the Netziv (Rav Naftali Zvi Yehuda Berlin), and Rav Samson Raphael Hirsch.
The Shmittah Year of 5670 (1909-1910)
In 1904, Rav Kook arrived in Eretz Yisrael, serving as chief rabbi of Jaffa and the surrounding moshavot. Leading up to the sabbatical year of 1910, Rav Kook took a forceful position defending the hetter mechirah. He penned a treatise entitled Shabbat Ha'Aretz which explained the legal reasoning behind the permit, along with a discussion of the laws for the sabbatical year.
While Rav Kook was an original and creative thinker, he usually took a relatively conservative position in Halachic matters. What led him to support the lenient position in the hetter mechirah controversy?
We can learn much about his underlying concerns from letters that he wrote during this time. The following quotes are from letters in the first volume of Igrot HaRe’iyah.
Reasons to Support the Hetter
While still in Latvia, Rav Kook and his father-in-law, Rav Eliyahu David Rabinowitz-Teomim (the “Aderet”, rabbi of Ponevezh and later chief rabbi of Jerusalem), discussed the issue at length. In his letters, Rav Kook admits that at that time they both opposed the hetter.
“From afar, when we heard the arguments of those who permit and of those who forbid, we both leaned toward the stricter opinion. But when the Aderet arrived in the Land of Israel, he saw with his own eyes that it is impossible to even consider not making some sort of arrangement for the sabbatical year.” (p. 258)
Seeing first-hand the precarious state of agricultural settlements was a critical factor in changing Rav Kook’s mind. He understood that full observance of the sabbatical year could endanger lives and would likely bring about the collapse of the new settlements.
A second concern was that the entire enterprise of the national return to the Land of Israel could fail over this issue. At that time, the nascent economy of the Yishuv in Eretz Yisrael was based on the commercial sale of agricultural produce.
“The Jewish Colonial Association [JCA] representative informed me that the JCA is preparing plans to buy much more property in the Holy Land. But if we decide that there is no permit to allow work during the seventh year via some legal sale, then the representative will be forced to advise that they should invest their money in Canada and cease supporting projects in the Land of Israel.
He also explained that [if lands will lay fallow during the sabbatical year], the Arabs will take control of Jewish land during the sabbatical year by grazing their herds on them, and it will be necessary to take them to court.” (p. 285)
A third concern — and perhaps the most important for Rav Kook — was his fear that a strict ruling would plainly demonstrate that Judaism is incompatible with the modern world and building of a Jewish state:
“Even worse is the potential condemnation of Judaism and widespread rejection of Torah observance as a result of a strict ruling, Heaven forbid, in this matter. The anti-religious elements are hoping that the rabbis will forbid [all agricultural activity during the sabbatical year]. Then they will have gained a great victory. They will have demonstrated that by listening to the rabbis, the land will be laid waste, the fields and vineyards will become desolate, and all commercial ties for the sale of wines, oranges, and other agricultural produce will be broken — ties upon which the survival of the Jewish settlement truly depends.” (p. 258)
The Halachic Underpinnings of the Hetter
In his letters, Rav Kook also discussed the legal reasoning behind the hetter mechirah. The sale is actually based on a number of independent, mitigating factors, each one lessening the severity of working the land during the sabbatical year.
The most important factor in taking a lenient stance is the ruling of most Halachic authorities that nowadays the sabbatical year no longer retains the status of Biblical law. Since it is Rabbinically-ordained, we may apply various leniencies, according to the principle of sfeika d'rabbanan lekula.
The hetter only permits those types of agricultural labor that are not Biblically prohibited, even when the shmittah year itself is Biblically-ordained. Thus, planting, pruning, harvesting, fruit-picking, and perhaps plowing must still be performed by a non-Jew hired to work the field. This clause ensures that no Torah prohibitions are violated, even according to the minority opinion that even nowadays the sabbatical year is Biblically ordained.
The Maharit1 in a responsum permitted renting out land to a non-Jew for a time period that includes the seventh year. He ruled that the obligation to observe the sabbatical year is on the farmer working the land, and not on the land itself. Even those who disagreed with this ruling, nonetheless agree that an actual sale of the land to a non-Jew will permit it to be farmed, since the land is no longer the property of a Jewish farmer.
An additional reason to be lenient is that our current situation is one of “undue hardship”. Given the precarious state of the agricultural settlements, not working the land would be truly life-threatening. In such cases, one may rely on a single opinion — that of the Rezah2 — who held that nowadays, without the Jubilee year, the sabbatical year is not even rabbinically ordained, but is only a pious custom.
Additionally, we may take into account the question regarding the correct count of the years of the Shemitah cycle. The Kaftor Vaferach3testified that some farmers would observe the seventh year during one year, while others observed it during another. Even though the rabbis agreed to observe just one sabbatical year (and chose the opinion of Maimonides), this is only a convention. The doubt still remains as to which year is truly the sabbatical year.
According to the land deeds in Palestine under the Ottoman Empire, all land in fact belongs to the regime, not the Jewish farmer. The farmer is only a “sharecropper of the king,” allowed to keep 90% of his produce by law (and 60-70% in practice).
Rav Kook also intimated that he had additional arguments to be lenient, but intentionally did not publicize them. He feared that, once institutionalized, the hetter would become too entrenched. The ultimate goal was not to circumvent the laws of the sabbatical year, but to allow the settlements to grow and prosper until they would be able to completely observe the sabbatical year in all of its details.
“On purpose, I did not organize everything in this matter to be fully explained, organized, and analyzed as it should be. Some justifications and cogent arguments I have omitted completely. All this was in order that the hetter should not become too accepted, but will always be considered a temporary measure (hora’at sha’ah), something that was permitted grudgingly due to the needs of the time. But when these issues are analyzed in the way of true Torah scholarship... the prohibition would become too weakened — and I certainly did not desire that.” (pp. 348-349)
Eye to the Future
Many of the rabbis who opposed the hetter mechirah wrote that not observing the sabbatical year would in fact jeopardize the future of Jewish settlement in the Land of Israel, since the punishment for transgressing its laws is exile (see Avot 5:9). While Rav Kook also looked forward to the day when the seventh year would be fully observed, he viewed the hetter as a stepping-stone that would allow the community to achieve that goal.
“We must recognize that we are obligated to strive with all of our strength to bring matters so that, in the end, the sabbatical year will be increasingly observed in all of its holiness in the Holy Land.... But how to arrive at this sacred goal? Which means should we use to attain it? This matter must be considered carefully.
In my opinion, we need to arrive at our desired goal precisely by graduated efforts. Rebbe Chiya Rabbah described the overall redemption of Israel as beginning slowly, little by little — kim'a kim'a [Talmud Yerushalmi, Berachot, 1:2]. So too, the spiritual redemption of establishing the Land’s holiness will advance in stages, step by step.” (p. 330)
One expression of this graduated approach is the distinction the hettermade between those agricultural activities that are prohibited Biblically and those prohibited rabbinically. “We should be like one who saves his possessions from the fire,” Rav Kook explained. “Whatever is more precious and holier [i.e., Biblically-prohibited labor] must be rescued first.”
This distinction also provides a solution to the danger of punishment by exile for not observing the sabbatical year. Such a severe penalty could only apply to transgressing Biblically-ordained prohibitions. 4
The Hetter for Farmers and Consumers
What about those who did not wish to rely on the hetter mechirah? Here, Rav Kook distinguished between farmers and consumers.
Rav Kook was very supportive of farmers who did not wish to rely on the hetter. When he heard that the JCA was using the hetter to force farmers to work on the sabbatical year, he became acutely distressed and informed the JCA that the hetter would become invalid under such circumstances. Rav Kook also spoke of setting up a special fund to support these farmers.
On the other hand, Rav Kook was critical of consumers who chose to be stringent in the sabbatical year by buying produce only from non-Jewish farmers. One cannot take on stringencies at the expense of others:
“Certainly it is not proper to look for leniencies and loopholes by purchasing produce from non-Jews, in a situation when this will cause loss of income from Jewish farmers and undermine their livelihood. In general, in any situation where we desire to be strict for ourselves, it is correct to make certain that this stringency does not induce any negative repercussions of financial loss or disrepute for others.” (p. 258)
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1 Rav Jacob Toledano (1697-1771) of Meknes, Morocco.
2 Rav Zerachiah HaLevi Gerondi (1125-1186).
3 Rav Eshtori HaParchi (1282-1357).
4 As Rav Aryeh Leib Gunzberg (1695-1785) wrote regarding the blessings recited before studying Torah: “It is self-evident, that if this blessing was only of rabbinic origin, it would not warrant such a terrible punishment as forfeiting the Land” (Sha’agat Aryeh sec. 24).
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