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Thought for the Day: So *That's* What's Going On With היתר מכירה

Keeping שמיטה is difficult.  Those farmers in Israel who observe shmita are certainly to be praised.  One of the basic approaches is known as היתר מכירה, literally "permission via sale".  The idea is that only land own by Jews in Eretz Yisrael is subject to the restrictions of the שמיטה year (at least at the Torah level).  The היתר מכירה is executed by selling the farmland to non-Jews for the year (or two, because an early disagreement about to calculate the שמיטה year).  Then it is -- for all practical purposes -- business as usual.  There are a myriad of details regarding the details of farming and distribution needed to properly observe שמיטה even with the היתר מכירה, but that's not the focus of those TftD © (as if anyone cares...).  It is interesting to explore exactly how the היתר מכירה is executed from a halachic perspective.

R' Cohen from the CRC has an excellent explanation that breaks the issue down into four simpler issues; those being:

  1. Assigning a שליח/agent, as the sale is mediated by a שליח; one of the members of the Rabanut.
  2. לא תחנם -- the Torah forbids, apparently, the sale of even parcels of Eretez Yisrael to non-Jews.
  3. שליח לדבר עבירה -- that being the case, the agent is being assigned to commit a transgression of Jewish law
  4. that being the case, the assignment of agency is voided; which seems to put us back at square one.
Let's take those one at a time.

For a שליח to act on my behalf, I need to make the assignment with גמירת דעת/serious intent.  Suppose I don't want him to really do this job, but I am being forced.  In that case the assignment doesn't work.  Do all those farmers really want to sell their land to Arabs?  We can assume that they do, because the don't want to violate שמיטה.  Hang on, though; if they are only doing it to "get around" שמיטה, then we have another problem; הערמה/hidden agenda.  Since שמיטה nowadays is Rabbinically mandated, הערמה works and the שליחות is good.  One down; three to go.

What about the problem of לא תחנם?  We have verse in the Torah (דברים פרק ז) that forbids: praising the beauty/grace/ability of a non-Jew (we should rather praise HaShem for bringing that exceptional beauty/grace/ability into the world), giving a non-Jew a present for no reason, and selling parcels of land in Eretz Yisrael to non-Jews.  Some want to "borrow" from the "giving a present for no reason" dimension and say that it is only forbidden to sell parcels of Eretz Yisrael to a non-Jew for no reason.  Here, however, we are actually strengthening the Jewish presence in Eretz Yisrael, so there may be no violation.  Two down; two to go.

Suppose לא תחנם is really a problem, then I am running afoul of שליח לדבר עבירה/assigning an agent to do a sin for me.  The reason that is a problem is because "when the master says something and the servant says another; to whom do you listen?!"  In other words, since HaShem says to do one thing and the farmer says to do another; obviously the שליח should listen to HaShem.  In this case, though, but the farmer and the שליח believe they are doing what HaShem wants.  Therefore, even if לא תחנם might really forbid selling parcels of Eretz Yisrael to non-Jews, both the farmer and the שליח hold that it does not (see previous paragraph).  Hence no problem of שליח לדבר עבירה and we are down to one final (potential) issue.

Suppose we are really wrong and the assignment is making a שליח לדבר עבירה.  Ok... so who says that the שליחות doesn't work?  You shouldn't each only cakes and candy all day, but it is eating and you will survive (for a time, anyway...).  In fact, it is a argument among the earlier sages if it works or not.  So, yes, the farmer shouldn't be assigning a שליח for this job, and yes the rabbi shouldn't take the job; but -- also yes -- the is an opinion that the שליחות still works and the sale will therefore be effective.


Whew!  That's a lot of leniencies and opinion jockeying to make היתר מכירה work.  On the other hand, keeping שמיטה nowadays also requires relying on a lot of leniencies and opinion jockeying.  My point is not really to prove that you should or shouldn't rely on the היתר מכירה.  My point is simply that the issue is complex, great sages of this and previous generations have put effort into making it as solid as possible, and the people who decide to rely on it are by and large acting לשם שמים.

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