by R. Gidon Rothstein
Parshat Behar: The Prohibition of Sefihin During a Shemittah Year
The Land of Israel observes shemittah this year, bringing another round of all the unfortunate battles of how best to handle its laws when Jewish agriculture has, thank God, returned to Israel. Here, I will take up just one element of shemittah, where its Torah law status is debated (there are three other mitzvot regarding shemittah in this week’s parsha, more in other places, but this one is practical for all people, not just farmers).
Here more than usual, I think knowing what the Torah required and what rabbinic law has added/adjusted has the salutary effect of reminding us a future Sanhedrin might take the Jewish people down a different road than our current one.
Defining the Year
Any shemittah rule depends on the idea of a seventh year. Rambam points out the range of options for how to decide if a fruit or vegetable counts as grown in the sixth or seventh year. For some plants, we follow onat ha-ma’aserot, the point where it has grown enough to count towards that year’s tithes, such as if it will be obligated in ma’aser sheni or ma’aser oni, its second tithe being taken to Jerusalem to be eaten or will be given to the poor. This is species-specific, what counts as appreciable development. Halachah considers other plants not grown until fully ready to be cut; yet others must actually be harvested.
The new year for shemittah comes on Rosh HaShanah, the first of Tishrei. Minhat Hinuch thinks this is true even for trees, despite our often speaking of the 15th of Shevat as their New Year. Aharonim debate this latter issue, however, some holding 15 of Shevat is New Year for trees in our regard as well.
Enjoying Produce Without Harvesting
Rambam’s Prohibition 222 says the Torah warned us against harvesting in the usual way what the land grows on its own [Rambam’s phrase is “was planted in the sixth year;” Sefer HaHinuch speaks of what the person planted improperly in the seventh, and/or did not make hefker.] He does not register any prohibition on eating the fruits or vegetables, taking the position shemittah produce a Jew wrongly guarded as his/her own may still be eaten. Minhat Hinuch notes Rabbenu Tam disagreed, held that meshumar, guarded produce, could not be harvested in any way and could not be eaten.
Minhat Hinuch points to a Rashi that seems to say guarded produce may not be harvested, similar to Rabbenu Tam, but prefers the view of Rash, only guarded produce must be harvested differently, hefker produce may be cut from the ground however one wants. In his view, Rambam and Sefer HaHinuch might have agreed with Rash.
Minhat Hinuch also says produce planted in the seventh year, wrongly or inadvertently, will have kedushat shevi’it, the sanctity of shevi’it—so, for example, leftovers cannot casually be thrown away—but can be harvested and eaten. Aruch HaShulhan links the discussion of sefihin to bi’ur, to what extent Jews are required to remove and destroy all remaining produce once there is no more in the fields.
I used harvesting to point out the produce is allowed, just in a non-usual way, because Rambam defined the prohibition as cutting the same as every other year.
Sefer HaHinuch 328 stresses we would have to eat such produce differently as well, in a way that demonstrates our awareness this food is hefker, not ours, belongs to Gd, Who is allowing us to eat some of it. We reap as one does from a field that belongs to no one, in small amounts rather than the whole field at once. In addition, we harvest and process the food we need for the next little while, return later when we need more.
Minhat Hinuch loosens some of the restrictions, notes we can eat/use shemittah produce in all (but only) the usual ways, eating, drinking, rubbing as a salve onto our bodies.
Rambam’s next prohibition, 223, says the same for trees, we must gather their fruit in an unusual way in the shemittah year, to honor the Torah’s (25;5) prohibition against cutting down the grapes. He gives examples, not to cut and dry figs in the usual area (the muktzeh), to do it in another open space, not to stomp grapes in a wine press but in a kneading trough, not to press olives in their big press, but to cut them open and put them in a smaller press. [In Shevi’it 8;6, Bartenura thinks muktzeh refers to the cutting tool for harvesting figs, and would mean we change the tools we use, not the area where we process the foods.].
Minhat Hinuch notes various versions of cutting and reaping, depending on the kind of plant or tree, with discussion for whether those are Biblical or only rabbinic. The requirement to stomp grapes or press olives unusually, for example, are to his mind clearly a rabbinic rule, not Biblical.
These rules obligate men and women, Sefer HaHinuch says, whenever the Jewish people are in Israel (a condition to which we are edging closer. Some who oppose the heter mechirah, the practice to officially sell Israel for the shemittah year, include in their hesitations the possibility the majority of world Jewry already lives in Israel, given doubts about conversions outside Israel).
Minhat Hinuch seems to assume shemittah is already a Biblical matter, yovel still rabbinic. He also goes out of his way to register his certainty of the impossibility of selling the Land for the shemittah year, even as he recognizes the disagreement between R. Yosef Karo and the Mabit about the shemittah status of truly non-Jewish owned land. I noticed his emphasis because the practical idea of a heter mechirah was twenty or more years in the future, yet he seems to sense it would be suggested.
The Rabbinic Prohibition
Sefer HaHinuch points out matters eventually became more complicated, because Hazal prohibited eating these sefihin, in reaction to those who would plant during the shemittah year and claim they were eating sefihin, had grown on their own (or were planted in the sixth year). The rabbinic rule applied to vegetables, grain, and legumes, not fruits that grow on trees nor grasses, because people do not tend to plant them.
The rabbinic prohibition was not extended to sefihin that grow in areas the Jews conquered after the Exodus but did not resettle on the return from Bavel, known as where olei Mitzrayim went, not olei Bavel. There, since the shemittah is more clearly rabbinic—the Gemara says the sanctity of the Land created by the original conquest dissipated with the destruction of the first Temple, and was reinstated, perhaps eternally, when the Jews came back from Bavel, but only where they resettled—Hazal did not extend the rabbinic prohibition of sefihin.
Although it’s not really this mitzvah’s point, once he has mentioned the different geographical areas, Sefer HaHinuch notes places where working the land is allowed, because those places are not part of Israel at all. A rabbinic decree required treating Surya as Israel, the section of modern-day Syria conquered by King David, before all the integral parts of Israel had been taken over. Other areas abutting Israel, like Egypt or Jordan, are unaffected by shemittah.
Finishing Our Shemittah Produce
Jews can own shemittah produce, by taking it from hefker. For example, if someone has a fruit tree in their front yard, the owners must leave the fruit for whoever wants to take (as they themselves may also take, as needed). Whoever then does pluck the fruit now owns those fruit, fully, like any other possession. Were someone else to then take it, the second person would be stealing.
The right to eat shemittah produce has a limit, however. Rambam holds Jews may no longer eat any type of fruit or vegetable that cannot be found in the fields (because people or animals have taken it all). As the deadline approaches, the Jew is supposed to give small amounts of the produce to friends and others, eat it him/herself, but must literally be meva’er, destroy, whatever still remains when the moment comes. For him, and Rashi, shemittah is about not growing, not owning, and not having left over, a year wholly contained in itself, produce-wise.
Ramban and others had a less draconian view. They agreed about attempting to eat it all before the time it runs out in the fields, but thought leftovers needed only be taken to a public area, declared hefker, and then could be repossessed. Should the Jew fail to be meva’er in this way, a rabbinic rule prohibited eating that produce. Ramban also seems to think the whole idea of bi’ur is rabbinic, the verse an asmachta.
Ra’avad stood between the two, adopted Ramban’s option where this type of food was out of stock locally, but still available elsewhere in the country (for him, we would have to know how broadly that applied—could the people of the north rely on the fact that some of this produce was still found in the fields way down south?). Once it was completely gone, he agreed with Rashi and Rambam, leftovers had to be destroyed.
Back to the original prohibition, Sefer HaHinuch says anyone who deliberately harvests produce as usual, the whole field at once, making piles of the grain, threshing it with cattle to do it all in one big load, violates a full Biblical prohibition and be liable for lashes. Gathering it in smaller amounts and ways still violates a rabbinic prohibition and can incur makkat mardut, rabbinic lashes [which can be harsher, since it continues until the miscreant yields, agrees to change his/her behavior.]
Ways we have to make shemittah different, even as we are allowed to benefit from the Land during this remarkable year.