Shemita stores-Understanding the status of produce sold in stores in Israel during the Shemita year

Shemita stores-Understanding the status of produce sold in stores in Israel during the Shemita year & the various Hashgacha’s:

Vegetables and grains which grow during the shemita year are forbidden to be eaten due to the rabbinical Sefichin decree as explained in Halacha 3. Likewise, even fruits and other products that grew in Israel that do not contain the prohibition of Sefichin, are forbidden to be harvested and sold if they contain Kedushas Shevi’is. These limitations create a serious challenge for the kosher abiding consumer in his purchasing of produce in Israel during the shemita year, and prohibit him from purchasing produce in Israel from stores that do not contain a Hashgacha. Thus, especially during the shemita year [not to mention during the regular year as well due to issues of Arla and Teruma Umaaser] it is imperative that one only purchase his produce in Israel from a seller who is under a reputable Hashgacha which deals with the issue of shemita. One who purchases produce from a regular store which does not contain a Hashgacha for shemita can possibly transgress the prohibition of eating Sefichin, and the prohibition of doing business with, and belittling, Kedushas Shei’is. Now, we will explore the various sources of produce that Hashgachas allow on the market to circumvent the shemita restrictions.

There are various options used by Hashgacha companies in providing produce during a Shemita year for their Kosher consumers.

1. Gidul Nachrim [Produce grown by gentiles. Is followed by the Eida Hachareidis; not followed by Benei Brak Hashgachas]
2. Oatzer Beis Din [Used by some Mehadrin Hashgachas; Not used by the Eida]
3. Heter Mechira. [Not used by any Mehadrin Hashgachas-only Rabanut]
4. Totzeres Chul. [Produce of the Diaspora. Used by all Hashgachas]
5. Produce of 6th year [Used by all Hashgachas]

A. Gidul Nachrim-Produce of a gentile grown in Israel:

The vintage custom of Jerusalem, and other communities in Eretz Yisrael, is to treat gentile produce of Israel as non-Shemita produce, and so is followed by a number of Hashgacha companies[1] during the Shemita year. The custom of the Chazon Ish, and so is followed in Bnei Brak Hashgachas, is to treat gentile Israel produce as Kedushas Shevi’is. See above Halacha 5 for the full analysis on this subject!

B. Otzer Beis Din:[2]

The concept of Otzer Beis Din refers to a Beis Din, a valid Jewish court, which takes the legal authority of facilitating equal distribution of Shemita produce. The concept of Otzer Beis Din is first mentioned in the Tosefta[3] with regards to harvesting the produce and distributing the produce to the masses. This form of Beis Din has authority to take charge of a field and distribute the produce for a mere cost sum. Such produce is considered Kedushas Shevi’is and has all the regulations of Shemita apply to it. Thus, no purchases produce from such Hashgacha’s [i.e. the sign in the store says Otzer Beis Din] then he must be careful to treat the produce that he purchases with Kedushas Shevi’is.

Now, there are various Halachic issues involved with this form of distribution of Shemita produce. These include:

1. May one in truth rely on the Tosefta as a Halachically valid form of distribution even in today’s times, or was it limited to only their times?[4]
2. May the Beis Din appoint messengers to guard the fields and prevent others from taking?
3. May the Beis Din harvest the produce as usual?
4. May the Beis Din charge the people money for receiving the fruits? What may they charge for? Only Shipping, or even the harvest and packaging or even the work of the field owners in producing their product and keeping it healthy?[5]
5. May the fruits be weighed regularly?[6]

Practically, there exits many different forms of Hashgachas that perform Otzer Beis Din, each deciding their own measures regarding the above questions, and there is no set standard of how the arrangement is done. For example, one Otzer Beis Din may arrange to allow complete harvest and to pay the field owners and workers 80% of the produce value. Others arrange to pay the landowners 100% of the market price just like a regular year. This money of course is gained through the Hashgachas sale to the consumers in which one does not feel any real price difference in the Shemita product. Others will charge the consumers only for the actual permitted work performed by the workers. Practically, due to all the above questions in the validities of the various arrangements of Otzer Beis Din, the custom of Yerushalayim Hashgachas and the Eida Hachareidis is not to market any Otzer Beis Din produce, and all of their produce is non Shemita produce. Rav Landau of Bnei Brak, as well as the Komemiyus Hashgacha, do allow Otzer Beis Din, however, they take the most stringent steps in this regard both in terms of what they allow to be done to the field, and the amount they charge consumers, which is very limited, and thus fruits under their Hashgacha’s are very cheap. Certainly, one should not rely on a Halachically irresponsible Otzer Beis Din arrangement, as this is considered like one is doing business with Shemita produce.

C. Heter Mechira:[7]

Some Poskim[8] allow Jews to sell their lands to gentiles for the year of Shemita and have its produce sold as non-Shemita produce. Some[9] even allow the land to be worked by Jews as a result of this sale. Many leading Poskim[10], however, negated the validity, and legal accomplishments, of this sale and thus vehemently opposed its use during the Shemita year.[11] Practically, the Chareidi public, as well as all of the Mehadrin Hashgachas, do not allow Heter Mechira produce to be used or sold under companies and stores under their supervision.

D. Totzeres Chutz-Foods of the Diaspora:

Foods grown outside of the legal boundaries of Eretz Yisrael do not contain Kedushas Shevi’is and serve as one of the primary sources of produce during the Shemita year.

E. Yivul Shishis:

Fruits grown in the 6th year, as well as vegetables picked in the 6th year, do not contain Kedushas Shevi’is.  

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[1] Eida Hachareidis

[2] Toesefta Shevi’is 1-3; See Minchas Yerushalayim p. 137-164 for a full analysis on this subject; Mishnas Yosef 3:39

[3] Sheviis 8:1

[4] See Ramban Behar; Rambam Shevi’is completely omits the concept of Otzer Beis Din; Raavad 7:3 writes the Otzer is only valid during the time of Biur and not beforehand; Rashas 9:5 establishes the entire Otzer of the Tosefta regarding the produce of the 6^th year

[5] See Mishnas Yosef ibid for a full analysis in the four different forms of Otzer Beis Din and what they charge for.

[6] See Minchas Yerushalayim p. 147 that the Chazon Ish allowed weighing the fruits in his Otzer Beis Din of 1945

[7] See Minchas Yerushalayim p. 140; HaShemita Kehilchasa p. 121

Background: The discussion of the use of Heter Mechira first began in 1888, towards the Shemita year of 1889. Until that year there were very few Jewish owned crops in Eretz Yisrael and hence the issue of Shemita was not relevant. However, in that year there were many Jewish crop owners [in Motza and Petach Tikva, Rishon Letziyon, Ikron, Nes Tziyona, Gadera] whose sustenance would be severely damaged if they freed their crop and rested the land for that year. The heads of the Zionists movement “Chovevei Tziyon” and the Rothschild foundation hence brought the matter to the floor of the leading Rabbis in Europe and Eretz Yisrael. A discussion hence ensued amongst the leading Rabbis of Europe and Eretz Yisrael regarding how to arrange for the Jews in Eretz Yisrael to continue their sustenance. A group of leading Rabbanim [Rav of Kutna; Rav of Bialstock] convened in Warsaw and innovated the idea of Heter Mechirah which would allow the land to be sold to gentiles prior to Shemita of that year, and hence allow the sale of the crops regularly without a status of Kedushas Shevi’is. Some desired to extend this allowance even for the working of the land.

[8] Rav Yitzchak Elchonan Spektor; Yeshuos Malko 53; Rav Yitzchak Elchonan of Kovna; Otzros Yosef of Rav Engel;

[9] Sefer Haterumos; Gra; The original Heter Mechira allowed the original Jewish landowners to hire gentile workers for the land, while the Jewish landowners could perform those Melachas that were permitted to be done during Shemita; The Sefer Haterumos rules that in today’s times a gentile has ability to remove the Kedusha of the land of Eretz Yisrael from the land that he owns, and it is considered like the Diaspora for all matters.

[10] Chazon Ish 24; Badatz Yerushalayim under Rav Shmuel Salant; Maharil Diskin; Rav Chaim Zonenfeld; Rav Aurbach; Rav Elyashiv

[11] The reason: Various reasons of opposition were given against the Heter Mechira. Some attacked the Halachic permission of going through with the sale. Others invalidated the legality of the sale all together. Others opposed the allowance to have the gentiles work the fields as a result of the sale. The following are the detailed reasons of opposition: a) It is not considered a valid sale to uproot the holiness of the land being that it will be bought back from the gentile the next year. b) It is an invalid sale because it does not carry legal weight in the local government circles. c) It is not a true sale as the sellers never really intend to sell the land. d) It is forbidden to sell land to a gentile in Israel and thus may never be initially done even if the sale is valid e) If the sale is done through an emissary, then it is invalid as we rule “there is no Shliach for a matter of sin”.