Rav Aaron’s son, R. Chaim Soloveichik has paskined for one of his Daati constituents in Ramat Bet Shemesh that he could rely on the Heter Mechira. This is a Heter (a 'permit' in Halacha) that allows one to buy produce of Israel during a Shmitta year through the mechanism of selling the land upon which it will be grown to a non Jew, usually an Arab.
Shmitta is the once in every seven year cycle where the Torah mandates fields in Israel to lay fallow. This coming year is a Shmittah year. How could R.Chaim do this in light of the recent Kol Korah issued by the ‘Gedolim”? It is because he has the courage of his convictions. Something his father taught him to follow.
Let us examine briefly the pertinent Halachos*.
There are many places in Shas, (both Bavli and Yerushalmi) where Tanaaim argue about whether a Non-Jew can make a Kinyan in Israel in order to remove one's obligations of Maaser. Both the Talmud Yerushalmi and the Talmud Bavli discuss it.The Talmud Bavli (Gitin 47A) states that those that say a non Jew may not buy land, base it on the Pasuk of "Ki Li Kol HaAretz". All the land is God’s and therefore due to its intrinsic holiness a non Jew buying the land does not remove its intrinsic holiness.
Those who say a non Jew may buy land, interpret the words "Reshis D'Gancha" …”The first of your grain” to mean that only the grain owned by a Jew is governed by these laws not the land. So if a non Jew grows grain, it has no intrinsic holiness.
The Rambam (Terumos 81:10) and the Raavad (there Halacha 13), the Shulchan Aruch (Yorah Deah Ch 331:3)and others Paskin that a non Jew does not have the ability to purchase land in Israel. The words of the Rambam: "A Goy that buys land in Israel does not remove from it's Mitzvah obligations; it retains it's holiness.”
Therefore, if a Jew buys grain from Israeli land ‘sold’ to a non Jew it is subject to all the laws pertaining to land (One has to separate Terumah and Maaser… and bring Bikurim, etc.) It is as if he never sold it to him. On the other hand, the Kesef Mishna (a commentary on the Rambam) interprets the Rambam as holding this postion only if after he bought the produce back from the non Jew. But, if he still owns it, it indeed, not obligated in laws pertaining to the land in Israel in all matters of Kedusha.
The Kesef Mishneh Paskins that fruit of a non Jew is NOT subject to the strictures of Shmitah. Indeed, the Rambam Paskins (Hilchos Shmittah VeYovel Ch 84 Halacha 29) that a non Jew that buys land in Israel and plants during Shmittah, that those fruits are permitted. Their fruits are not subject to Shmittah laws as they serve "Sin" and are therefore, not commanded on the laws of Shmittah.
The Bais Yosef (Rabbi Joseph Karo, author of the Shulchan Aruch) gave another reason to be Matir the produce of a non Jew during Shmittah. From the Pasuk “VeHaysah Shavas HaAretz Lachem”: “And it should be a ‘rest’ for your land., “Lachem VeLo Nachrim.” This applies only to land that is yours and not land that is purchased by a non Jew. From this it can be seen that only land of a Jew is subject to the laws of Shmittah.
Today, Shmitah is D’Rabbanan according to many Poskim and according to all of them, a non Jew may purchase land in Israel in order to remove from it the laws of Shmitah. The only violation is possibly that of Lo Sechanem. But once it is sold, it’s theirs and is absolved of the laws of Shmitta.
So what's the problem with Heter Mechirah?According to the "Mabit" and Mahrit" the Rambam is to be interpreted differently. They say that the Rambam only meant that before Biur, Goyim do not have GzeirasSphicham on them. But Kedushas Shvi'is (Shmittah) they do have.
The Ridvaz in his Teshuvos elaborates on this point but Paskins like the Bais Yosef and concludes with the following: "It is certain ( Barur KaShemesh) that it is permissible to buy and eat grain and fruit purchased from non Jews in Israel without it having Kedushas Shvi'is. This is the basis of the Heter Mechirah.
Now it’s true that the Heter by Rav Kook was given B’Shas Ha Dechak under conditions of extreme dificulty. But the Heter is there... and the basis for it is solid. And that’s why the stridency of calls to reject it by some of the Rabbinic leadership is so troubling.
I agree that it should not be relied upon L’Chatchila. But to say that one who relies upon it desecrates the "holy and precious" mitzvah of shmita, is an unfair characterization of Halacha, in my view. By putting it in those terms it will have the effect of increasingly driving a wedge between great numbers of Jews. Many peope rely on it. Why paint them in those terms? It is a devise statement, not a uniting one. The more I hear statements like this, the more convinced I am that the purpose is in fact to divide Jews!
Why must everything coming out of those quarters be put in such stark black and white terms? Why must this community be so intent on separating themselves from the rest of Frum Klal Yisroel?
An article in the Yated describing the ‘post concert ban’ 'sellout' attendance at the Avarham Fried concert also highlights this attitude of seperatism. They claimed the ban to be a complete success. Why? Because the only ones who attended were Daatim… as if to say, “You are not part of Klal Yisroel anyway.
There may not be any love lost between Charedim and Daatim which is sad enough. But why perpetuate and increase the divide?!
*Based mostly upon Torah L’Daas by Rabbi Matis Blum
