A Sabbatical for Loans and the Land (1)

            The shemita year encompasses several mitzvot.  In this shiur we shall try to provide the basic definitions of three mitzvot related to shemita: Renouncing of proprietary rights to produce, the land's rest from work, and the release of monetary debts.

 

RENOUNCING OF PROPRIETARY RIGHTS TO PRODUCE – ACT OF HEFKER PERFORMED BY MAN OR AFKATA DE-MALKA (EXPROPROPRIATION BY THE DIVINE KING)?

 

The source for the mitzva of renouncing proprietary rights to produce is found in Parashat Shofetim:

 

And six years you shall sow your land, and shall gather in its fruits: but the seventh year you shall let it rest and abandon it; that the poor of your people may eat: and what they leave, the bests of the field shall eat.  In like manner you shall deal with your vineyard, and with your olive grove.  (Shemot 23:10-11)

 

            The Rambam in his Sefer Ha-mitzvot (positive mitzva 134) spells out the contents of this mitzva:

 

Mitzva no. 134 is that God commanded us to renounce ownership of all that grows from the land in the sabbatical year and He permitted all the produce of our land to all people.  This is what it says: "But the seventh year you shall let it rest and abandon it, etc." And the formulation of the Mekhilta [de-Rabbi Shimon bar Yochai]: Surely the vineyard and the olive grove were part of the rule.  Why were they removed? To draw an analogy to them.  Just as a vineyard is governed by a positive commandment, and one is liable for the violation of a negative commandment, so too all that is governed by a positive commanded, one is liable for the violation of a negative commandment.  I shall explain the meaning of this dictum.  That which is stated, "But the seventh year you shall let it rest and abandon it," includes whatever grows from the land during the seventh year – grapes, figs, olives, peaches, pomegranates, wheat, barley, and other things.  Thus, it teaches that releasing everything is a positive commandment.  It then specifies by saying: "In like manner you shall deal with your vineyard, and with your olive grove." This is included in everything that grows from the land.

 

            As for the nature of the mitzva to renounce ownership of one's produce there is a famous dispute between Rabbi Yosef Karo (the Bet Yosef) and the Mabit.  Rabbi Yosef Karo maintains that the mitzva of renouncing ownership is cast upon man, whereas the Mabit argues that the hefker is performed by the Torah – "expropriation by the [Divine] King." Their discussion of the issue relates to the law governing the produce of a non-Jew during the sabbatical year: Is such produce bound by the laws of ma'aser? The Bet Yosef argues that since the non-Jew did not declare the produce ownerless, it must be tithed, while the Mabit maintains that during the shemita year there is an automatic nullification of proprietary rights, and accordingly the produce is hefker and therefore exempt from ma'aser.

 

            The Mabit says as follows (cited in Responsa Avkat Rokhel, no. 22):

 

You might insist on saying that the Torah only exempted from ma'aser that which a person declared ownerless, i.e., the produce of a Jew, but the produce of a non-Jew which was not declared ownerless is obligated [in tithes].  This is not true, for if a Jew fenced in his vineyard and did not declare it ownerless during the sabbatical year, will it be subject to ma'aser? Surely the Torah declared the land ownerless for the poor and the rich, and therefore there is no obligation [to set aside] ma'aser, and all the more so in the case of a non-Jew.

 

            To this the Bet Yosef responds as follows (Responsa Avkat Rokhel, no. 24):

 

And I say that what he thinks is crookedness – is straightness.  For the produce of the sabbatical year is exempt from ma'aser only because of hefker, and anything the ownership of which was not renounced by way of hefker is not exempt from ma'aser.  And that which he argued that if a Jew fenced in his vineyard and did not declare it ownerless, etc.  … it might be suggested that indeed [such produce] is obligated [in ma'aser] even though the Torah declared it ownerless, since he did not declare it ownerless.  And even if you say that it is exempt, it might be suggested that there it is different because the Torah declared it ownerless, which is not true in the case of a non-Jew.

 

            Upon closer examination, we see that each position finds support in earlier sources.  For according to the formulation of the Rambam in Sefer Ha-mitzvot, as cited above, God commanded us to renounce ownership of all that grows from the land, which implies that the produce is not automatically ownerless.  This supports the position of the Bet Yosef.  So too in his Mishne Torah, Hilkhot Shemita (4:24), the Rambam writes:

 

There is a positive commandment to release all that the land produces in the sabbatical year, as it is stated: "But the seventh year you shall let it rest and abandon it." Whoever locks his vineyard or closes his field during the sabbatical year has nullified a positive commandment, and so too if he gathers all his produce into his house.  Rather he must declare it all ownerless, the right of all being equal.

 

All this supports the position of the Bet Yosef that the mitzva of declaring his produce ownerless falls upon the shoulders of each individual.

 

The Gemara in Bava Metzia 39a, however, leans toward the view of the Mabit, for it states:

 

"Abandoned" means "against their will"; as it is written: "But the seventh year you shall let it rest and abandon it" – expropriation by the [Divine] King.

 

            It is possible, however, to refute this proof, for it might be argued that the Gemara means to say that the Torah commands man to declare his produce ownerless, and against his will he is obligated to obey the Torah's commands.  But this does not necessarily mean that the Torah expropriates the produce against the owner's will.

 

            The most important talmudic passage dealing with this issue is in Nedarim 42b:

 

Someone who became forbidden by a vow to derive benefit from his fellow before the sabbatical year may not enter into his field, nor may he eat of his produce that overhangs [the public domain].  And [if he became forbidden] on the sabbatical year, he may not enter into his field, but he may eat of the overhanging produce.

 

The Mishna asserts that if a person is forbidden by way of a vow to derive benefit from his fellow during the sabbatical year, he may not enter into that fellow's field, but he may eat of his produce that overhangs the public domain.

 

The Gemara (42b) has difficulty with this law:

 

What is the difference that he may eat of the overhanging produce? Because it is produce that is ownerless.  The land too is ownerless! – Ulla said: Where the trees stand on the border.  Rabbi Shimon ben Elyakim said: A decree lest he remain [there in the field].

 

The Rosh and the anonymous commentator (ad loc.) explain that the Torah also declared the land ownerless with respect to eating.  This is what the Gemara means when it argues that the person forbidden by a vow should be permitted to enter into his fellow's field.  The Gemara answers that the Torah declared ownerless only that which is necessary to allow eating.  Accordingly, one who is forbidden by vow to derive benefit from his fellow may not enter into his field, if he can derive benefit from the produce that overhangs the public domain.  The Rosh and the anonymous commentator appear then to agree with the Mabit that there is expropriation by royal decree, for they add words to what is stated explicitly in the Gemara, emphasizing that the Torah declared the land ownerless.  Indeed, the Maharit adduces proof in support of his father – the Mabit – from this passage.

 

Rashi in Rosh ha-Shana (15b) seems to contradict himself, for on the one hand, he writes at the beginning of the passage that a person is obligated to declare his produce ownerless, the produce thereby becoming exempt from ma'aser.  A few lines later, however, he uses the expression afkata de-malka, "expropriation by the [Divine] King"! It seems therefore that the expression afkata de-malka does not necessarily imply that the Torah automatically declares the land ownerless, but rather that the Torah commands the individual to declare his own property ownerless.  This is similar to what we said above regarding what the Gemara in Bava Metzia says that abandonment of the produce is afkata de-malka.

 

THE POSITION OF THE BET YOSEF

 

            It is generally accepted that the Bet Yosef maintains that the hefker under discussion is an exclusively human act.  The Bet Yosef, however, uses a strange expression:

 

Even though the Torah declared it ownerless, because he did not declare it ownerless.

 

            What does the Bet Yosef mean when he says that "the Torah declared it ownerless"? It might be suggested that the Torah declares the produce ownerless on condition that the person agree to the process.  According to this it suffices that the person mentally consent that his produce should be declared ownerless, and then the hefker takes effect because of the Torah's expropriation.

 

            Elsewhere, however, the Bet Yosef implies that the person's consent does not suffice.  In his Kesef Mishne (Hilkhot Shemita 4:24), he writes:

 

In the Mekhilta: "But the seventh year you shall let it rest." A person must not say: Why did the Torah say… is it not that the poor should eat [i.e., the objective of the hefker is that the poor should have what to eat]? I will bring the produce into my house and distribute it to the poor? Therefore the verse states: "But the seventh year you shall let it rest [and abandon it] – teaching that he must make breaches.

 

            We see from here that a person is required to take active steps, e.g., make breaches in the fence surrounding his field.  Only in this way does he fulfill the mitzva of abandoning the produce and turning it into ownerless property!

 

            It may be argued that according to the Bet Yosef the Torah renders the produce ownerless only when the person raises no objections.  But if a person brings his produce into his house or leaves the fences around his field in place, he demonstrates that the Torah's hefker is not to his liking. 

 

Rabbi Kook, in his Shabbat Ha-aretz, explains the position of the Bet Yosef in a different manner.  He argues that fundamentally there is automatic Divine expropriation of the produce, only that a person would reacquire the produce growing in his field based on the kinyan of chatzer, the mode of acquisition that allows a person to acquire whatever is found on his property.  Thus, a person must declare the land itself ownerless in order not to reacquire the produce after it becomes hefker.

 

            According to this, the Bet Yosef's position is very similar to the Mabit's – both agree that that there is automatic Divine expropriation of the produce, only that the Bet Yosef maintains that a person can reacquire the produce by way of kinyan chatzer, and therefore it is necessary for him to declare the field ownerless as well.

 

            According to this, we can resolve the difficulty raised by the Ridbaz against the position that understands that during the sabbatical year, the Torah automatically expropriates the produce.  The Mishna in Pe'a (6:1) states that according to Bet Hillel, hefker is only valid only if a person renounces ownership vis-a-vis both the poor and the rich.  The source for this position is that only hefker of this sort is regarded as hefker with respect to shemita.  The Ridbaz asks: How can we learn from shemita that hefker is only valid if aimed at both the poor and the rich – surely in the case of shemita, we are dealing with an expropriation of the Divine King, and not by hefker effected by man! According to the intermediate definition that we have suggested, this difficulty is resolved, for indeed the produce becomes ownerless by way of Divine expropriation, but the land becomes ownerless by way of hefker effected by man.  This is what serves as proof for all hefker that it is only valid if it is effective regarding rich and poor alike.

 

            In conclusion, let us briefly mention two objections to the position of the Bet Yosef, that the mitzva of hefker depends exclusively upon man.  We will leave these objections without a satisfactory answer.

 

1) The Rambam writes in Hilkhot Kil'ayim (5:8):

 

Both one who plants [kil'ayim] and one who maintains [it], once he sees kil'ayim growing in his vineyard, and leaves it, it is forbidden.  A person cannot make something that is not his forbidden.  Therefore one who causes his vine to overhang grain belonging to someone else – his vine is forbidden, but the grain is not forbidden.  If he caused another person's vine to overhang his own grain, the grain is forbidden, but the other person's vine is not forbidden.  If he caused another person's vine to overhang that other person's grain, neither one is forbidden.  For this reason, one who plants [seeds] in his vineyard during the sabbatical year does not make [anything] forbidden.

 

            The Rambam asserts that one who plants seeds in his own vineyard during the sabbatical year does not cause anything to be forbidden because the vineyard is not regarded as his.  Now, this halakha is dealing with a sinner who most certainly did not declare his field ownerless, for he is planting during the sabbatical year.  And according to the Bet Yosef, there is no Divine expropriation, but only human hefker.  How then does the Rambam assert that the vineyard is not his? This would seem to be a strong proof in support of the position of the Mabit.

 

2) The Avnei Milu'im (sec. 72, no. 2) raises an objection against the aforementioned Gemara in Nedarim which states that during the shemita year the field itself is declared ownerless for the purpose of eating its produce, and therefore by right even one who is forbidden by a vow to derive benefit from another person should be permitted to enter his field.  The Avnei Mulu'im asks: The law is that a person who rents a certain object to another person can forbid that object to him by way of a konam, even though the renter has a certain lien on that object, because a konam cancels a lien.  How then can the Gemara say that the Torah declares the field ownerless for the purpose of eating the produce? Surely even if we say that the Torah declares the field ownerless for the purpose of eating the produce, we should still say that this case is no worse than that of a rental, where the owner of the object no longer has rights to the fruit of the object, but nevertheless he can forbid it by way of a konam.  Thus, we should say that the konam declared by the owner of the field parallels the konam declared by the owner of the rented object, and that that konam should cancel the lien established by the Torah.  Thus, the person who is forbidden by vow to derive benefit from his fellow should be forbidden to enter into his field?

 

            Some have suggested that if we say like the Mabit that the Torah declares the field ownerless, then the Torah also removes the prohibition of konam created by the person who took the vow.  Just as the Torah removes the prohibition of theft, so too it removes the prohibition of konam.  According to the Bet Yosef, however, the difficulty remains, for if it is the person who declares his field ownerless for the purpose of eating the produce, there is no room to talk about the Torah's removal of the prohibition of konam.

 

(Translated by David Strauss)