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6. Is Shemita today Biblical or Rabbinical?[1]

A. Background:

Many commands in the Torah are contingent on different factors for them to be in effect. Some are dependent on one’s living in Eretz Yisrael. Others are dependent on the establishment of the Temple. Others are dependent on the inhabitation of all the Jewish people in Eretz Yisrael. Others are dependent on the holiness of the land of Eretz Yisrael. Others are dependent on a number of these factors.

Not dependent on Temple: According to all opinions the command of Shemita is independent from the establishment of the Temple. Hence, even when the Temple is not in existence it is still possible for Shemita to be a Biblical obligation.[2] In fact, the first cycles of Biblical Shemita that was observed by the Jewish people was before the Temple was even established and hence it cannot possibly be dependent on it.[3]

Dependent on Kedushas Eretz Yisrael: The Mitzvah of Shemita is only Biblically applicable when Eretz Yisrael contains its Holiness. Eretz Yisrael was first sanctified when the Jewish people conquered Eretz Yisrael in the times of Yehoshua.[4] The exile after the destruction of the first Temple revoked this sanctity and hence the land reverted to its unsanctified state in which the Mitzvah of Shemita was no longer Biblical.[5] When the exiles returned from Bavel to Eretz Yisrael they re-sanctified the land of Israel with Ezra leading the way.[6] Thus the Mitzvah of Shemita returned to a Biblical state. Certain sections of Eretz Yisrael that were originally sanctified, however were not re-sanctified by the return of Ezra with the Babylonian exile and hence remained desolate of its previous Holiness, and Shemita did not Biblically apply in those regions.[7] After the destruction of the 2^nd Temple and the second exile it became disputed as to whether Eretz Yisrael once again lost its holiness, as occurred after the first exile, or if the sanctification performed by Ezra was permanent and hence remains intact even now.[8] Some Poskim[9] rule that Eretz Yisrael once again lost its holiness and hence all Mitzvos of the land, including Shemita lost their Biblical status. Other Poskim[10] however rule that it retains its Holiness and hence the land dependent Mitzvos enjoy a Biblical status.

Complete Jewish inhabitation of Eretz Yisrael: It is disputed amongst Poskim as to whether the Biblical observance of Shemita is dependent on the inhabitation of the entire Jewish people in Eretz Yisrael. Some Poskim[11]  rule it is dependent on it, and hence even if one learns that the Holiness of Eretz Yisrael is still active, nevertheless, Shemita is not Biblically obligatory. Others[12] however rule that the Biblical observance of Shemita is independent of the inhabitance of all the Jewish people in Eretz Yisrael, and hence it would be a Biblical obligation according to those who learn the Holiness of Eretz Yisrael is now eternal.

Yovel: It is disputed amongst the Tannaim in the Mishneh, as well as the Poskim, as to whether the Biblical observance of Shemita is dependent on the Biblical observance of Yovel. Some Poskim[13] rule it is dependent on it and hence even if one learns that the Holiness of Eretz Yisrael is still active, nevertheless Shemita is not Biblically obligatory. Others[14] rule it is independent of Yovel.

B. The final ruling in the Poskim:

Some Poskim[15] rule that the Mitzvah of Shemita today is of Biblical obligation.[16] Other Poskim[17], however, rule, that the observance of Shemita in today’s times is only a Rabbinical obligation.[18] Other Poskim[19] rule that it is not at all obligatory today, even on a Rabbinical level, and is only observed due to Midas Chassidus.[20] Majority of Poskim negate this latter opinion.[21] Practically, the accepted Halachic ruling is that Shemita today is of Rabbinical obligation.[22] Nonetheless, one is to treat the Shemita laws similar to a Torah obligation and hence in a case of doubt one is to be stringent.[23]

Shemitas Kesafim:^[24] [Biblically the command to annul loans during Shemita only applies during times that the Yovel cycle is in practice^[25], which is when all the tribes are living in Eretz Yisrael.^[26]] In today’s times [however] the laws of Shemitas Kesafim [abolishing debts] during the year of Shemita is [only] a Rabbinical enactment.^[27] This applies in both Eretz Yisrael, and in the Diaspora.^[28]

 

Q&A

Does the concept of Safek Derabana Lekula apply also regarding questionable Shemita laws?

Some Poskim[29] conclude that although we practically rule that Shemita today is merely a Rabbinical obligation, nonetheless, in a case of doubt one is to be stringent to treat it like a Biblical obligation.

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[1] See Mitzvas HaShemita chapter 2; Encyclopedia Talmudit Vol. 2 p. 220 [Erech Eretz Yisrael]

[2] Rambam 4:25

[3] Toras Kohanim Behar 1:3

[4] See Rambam Teruma 1:2

[5] Rambam ibid; Rambam Beis Habechira 6:16

[6] Rambam Terumos 1:5

[7] See Yevamos 16a; Rambam 4:26; Encyclopedia Talmudit Vol. 2 p. 220

[8] See Megilah 10; Chagiga 3b; Yevamos16a; 82b; Shavuos 16a; Makos 19a; Chulin 7a; Erechin 32b

[9] Rashi in Gittin 36a; Sanhedrin 26a; Tosafus Yevamos 82b; Tur Yoreh Deah 331

[10] Rambam Beis Habechira 6:16; See Michaber 331:1

[11] Beis Yosef 331; Kesef Mishneh 4:24; Rambam Terumos 1:26 regarding Teruma and so understands in his opinion Rabbeinu Chaim Halevi Shemita 12:16; Michaber 331:1 regarding Teruma

[12] Raavad Terumos 1:26

[13] Rebbe Gittin 36a; Rashi ibid; Yerushalmi 6:2; Rambam 10:9

[14] Chachamim Gittin 36a; Ramban ibid; Kesef Mishneh 9:2 in opinion of Rambam; See Beis Halevi 3:1 that so hold majority of Rishonim

[15] Chachamim Gittin 36a; Ramban ibid; Kesef Mishneh 9:2 and Radbaz 4:29 in opinion of Rambam; Rambam in Igros Harambam 136; Radbaz [on Rambam] 4:29; See Beis Halevi 3:1 that so hold majority of Rishonim; Meishiv Davar 2:26; Aruch Hashulchan Ha’asid 15:5

[16] The reason: As Shemita is not dependent on Yovel or all Jewish inhabitation and Eretz Yisrael has not lost its holiness hence fulfilling all the criteria necessary to deem Shemita Biblical.

[17] Rebbe Gittin 36a; Yerushalmi 6:2; Rambam 10:9 and 9:2-3; Rashi in Gittin 36a; Sanhedrin 26a; Tosafus Yevamos 82b; Ritva Gittin ibid; Rashba 775; Smag 148 and negative 271; Smak 258; Hayireim 164; Hachinuch 84 and 475; Tur Yoreh Deah 331; Beis Yosef 331; Kesef Mishneh 4:24 Peas Hashulchan 23:23; Sheilas David; Shevas Haaretz; Chazon Ish Shevis 3:7

[18] The reason: As Eretz Yisrael lost its holiness after the destruction of the second Temple. Alternatively, because not all Jews live in Eretz Yisrael. Alternatively, because Shemita is dependent on Yovel and today Yovel is not accustomed. 

[19] Sefer Haterumos 45 in name of Razah; Meiri Gittin 36a; Raavad on Rif Gittin ibid

[20] The reason: As Shemita is dependent on the Yovel and hence since today the Yovel is not in practice even Rabbinically therefore Shemita is also not in practice even Rabbinically.

[21] Sefer Haterumos ibid; Beis Yosef Choshen Mishpat 67; Chazon Ish 23:4; Some record that the Ravaad retracted his ruling.

[22] Ritva Gittin ibid; Rashba 775; Smag 148 and negative 271; Smak 258; Hayireim 164; Hachinuch 84 and 475; Tur Yoreh Deah 331; Beis Yosef Y.D. 331; Kaftor Vaferech 47; Mabit 2:64; Ralbach 143; Peri Haaretz 3:4; Peas Hashulchan 23:23; Sheilas David; Shevas Haaretz; Chazon Ish Sheviis 3:8 [See also Chazon Ish 21:16; 22:1]; Shevet Halevi 2:197-3

[23] See Q&A

[24] Admur Hilchos Halva 34

^[25] Michaber 67:1; Rambam Shemita 2:9

Other Opinions: See Ramban brought in Urim Vetumim 67:1 that holds Shemitas Kesafim is a Biblical obligation even today, and even in the Diaspora.

^[26] Rambam Shemita 10:8

[27] Admur 34; Gittin ibid; Rambam 9:3; Michaber ibid

[28] Admur ibid; Michaber ibid

[29] Divrei Yoel Y.D. 97; Halichos Hashevi’is [Oz Vehadar] p. 28; See also Shevet Halevi 2:197-3 that it is to be treated like a Biblical precept

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