Jewish law: How to purchase produce during shmita

Many Talmudic sages believe that shmita restrictions today stem only from a rabbinic decree. A few even assert that our observance of these laws is a pious custom.

Fresh vegetables are sold at the shuk (market) (photo credit: MARC ISRAEL SELLEM)
Fresh vegetables are sold at the shuk (market)
(photo credit: MARC ISRAEL SELLEM)

The Jewish calendar is currently marking the shmita year, which along with canceling all debts, obligates Jews to allow the Land of Israel to lie fallow during this sabbatical year. In this column, we’ll explore the various options available for purchasing produce in the Israeli food market.

Scholars cite many different reasons for this mitzvah. The Torah itself highlights the potential social benefits of granting time for the poor and underprivileged (as well as for animals) to rest (Exodus 23:12) and enjoy the fruits of the abandoned fields (Leviticus 25:6-7). Yet already in antiquity, the rabbis found that these laws could actually harm the underprivileged. The threat of debt cancellation caused lenders to stop providing loans to the poor, which ultimately led Hillel to famously enact the pruzbul document, which allowed people to collect their loans after the shmita year. Many Talmudic sages, followed by most medieval scholars, believe that shmita restrictions today stem only from a rabbinic decree. A few even assert that our observance of these laws is a pious custom.

This factor was critical for many rabbinic scholars who searched for dispensations to help grapple with the economic problems posed by shmita when large numbers of Jews returned to Israel in the late 19th century. Deeming it economically untenable to leave the lands fallow, several rabbinic scholars, led by Rabbis Shmuel Mohliver and Yitzchak Elchanan Spektor, supported the heter mechira mechanism in 1888 (5649). This allowed Jews to formally sell the land to non-Jews for the year, thereby enabling farmers to continue working the land. Many decisors, including Rabbi Naftali Berlin, outright opposed this legal fiction, while others, including prominent Jerusalem scholars Rabbis Shmuel Salant and Yehoshua Diskin, fluctuated in their support depending on their assessment of the economic strain. Over time, the primary representatives of each side became Rabbi Abraham Isaac Kook, who favored the heter mechira, and Rabbi Avraham Karelitz (the Hazon Ish), who opposed this solution.

Heter mechira rests on the following halachic assumptions: 1) Shmita today does not have the status of biblical commandment, as discussed above. 2) Land in Israel owned by a non-Jew does not need to remain fallow. This was the opinion of Rabbi Yosef Karo, which was historically observed, even as his Safed colleague, Rabbi Moshe Trani, strongly opposed this position in a famed 16th century polemic. 3) Even a Jew may work the fields owned by a non-Jew. 4) Despite the general prohibition of selling Israeli territory to a non-Jew, one may temporarily sell Israeli territory to a non-Jew if the purpose is to strengthen Jewish settlement of the land. 5) This legal fiction is executed properly and with full intent. 

Each of these claims has strong support within the halachic literature, even as they each remain disputable. It should be noted that Rabbi Kook himself stated that he supported this dispensation only in eras when it remains economically necessary. In any case, given the continued controversy over heter mechira, some scholars have attempted to find other solutions. 

Obviously one might buy produce from a non-Jewish producer or import produce from abroad, including territory in southern Israel not deemed as part of the biblical homeland. Yet many scholars have argued that this is a problematic solution since it strengthens foreign competitors and sometimes even supports Israel’s enemies, as when the produce is purchased from Gaza. One recent solution is to use produce grown through hydroponic technology. Since the produce grows in enclosed areas and without soil, many scholars assert that this technology is not included within the shmita restrictions intended for fields. Others have deemed hydroponics problematic because they believe the prohibition encompasses any agricultural methods regularly used in contemporary society.

Another complex solution was suggested by both rabbis Kook and Karelitz in the early 20th century, albeit with some demurral. This entails an economic arrangement known as otzar beit din (the court’s warehouse). This system, which appears in one rabbinic text (Tosefta) but was not recorded elsewhere in the Talmud or by Maimonides, allowed the rabbinic court to seize control of the fallow land, hire outside workers (i.e., not the owners) to harvest the produce, and distribute it to the needy. In today’s version of this practice, the court actually hires the field owners to cut the crops and sell that produce to the public for the costs of the labor. The advantage of this system is that it allows one to harvest the produce while observing the commandment and thereby maintain the sanctity of the land and fruit. As such, consuming this food is a mitzvah, which also means that any leftover food must be disposed f respectfully. In recent years, the Torah Va-Aretz Institute established the “Otzar Ha-Aretz” program which, when possible, provides designated shops with hydroponics produce or those harvested through an otzar beit din arrangement. 

Yet this solution has its detractors, because: a) It was not used throughout the generations or cited in later halachic literature; b) It allows one to pay the owners only for their labor and not the fruit. Some propose that one could “charge extra” for labor during shmita year, but others feel that essentially violates the entire prohibition; c) The sanctified produce may not be consumed by gentiles or exported out of Israel, posing a major problem to the entire industry; d) It does not allow the planting of fields, which means that this arrangement cannot help provide vegetables toward the end of the shmita year. For this reason, prominent decisors like rabbis Mordechai Eliyahu, Shlomo Aviner and Eliezer Melamed have asserted that heter mechira remains an equally legitimate, if not preferred, option. 

My own belief is that while it remains important to develop additional options, heter mechira remains the primary legitimate option, which the Chief Rabbinate must continue to support. One hopes that this will be taken into consideration when the new chief rabbis are elected in the coming year.  

The author directs the Tikvah Overseas Students Institute and is the author of A Guide to the Complex: Contemporary Halakhic Debates (Maggid).