"When you come to the land that I am giving you, the land must be given a rest period, a sabbath to God. For six years you may plant your fields, prune your vineyards, and harvest your crops. But the seventh year is a sabbath of sabbaths for the land." (Lev. 25:1-4)

A Brief History of the Hetter Mechirah

As the Jewish people began to return to the Land of Israel in the late 1800's, establishing farms and moshavot (agricultural settlements), the question of letting fields lie fallow during the sabbatical year became — for the first time in many centuries — a burning issue. With the approach of the sabbatical year in 1889, the Jewish settlers turned to the rabbinate to issue a hetter (permit) to allow them to continue working their lands during the seventh year, so that the young and fragile agricultural settlements would not collapse.

In response, three respected scholars met in Vilna and designed a "hetter mechirah", based on temporarily selling the land to a non-Jew over the sabbatical year. The hetter was approved by Rabbi Yitzchak Elchanan Spector, chief rabbi of Kovno and the pre-eminent Halachic authority of that era.

During the sabbatical years of 1889, 1896, and 1903, many of the new settlements utilized the hetter. However, a number of highly respected scholars vociferously opposed the leniency. Among the opponents were the Beit HaLevy (Rabbi Yosef Dov Soloveitchik), the Netziv (Rabbi Naftali Zvi Yehuda Berlin), and Rabbi Samson Raphael Hirsch.

The Sabbatical Year of 5670 (1909-1910)

In 1904, Rav Kook arrived in Eretz Yisrael, serving as chief rabbi of Jaffa and the surrounding moshavot. Leading up to the sabbatical year of 1910, Rav Kook took a forceful position defending the hetter mechirah. He penned a treatise entitled "Shabbat Ha'Aretz" that explained the legal reasoning behind the permit, along with a discussion of the laws for the sabbatical year.

While Rav Kook was an original and creative thinker, he usually took a relatively strict and conservative stance in halachic matters. What lead him to support the lenient position in the hetter mechirah controversy? We can learn much about his underlying concerns from letters that he wrote during this time. (The following quotes are taken from letters in the first volume of Igrot HaRe'iyah.)

Motives for Supporting the Hetter

While still in Russia, Rav Kook and his father-in-law, Rabbi Eliyahu David Rabinowitz-Teomim (known as the Aderet, rabbi of Ponevez and later chief rabbi of Jerusalem), discussed the issue at length. In his letters, Rav Kook admits that at that time they both opposed the hetter.

"From afar, when we heard the arguments of those who permit and of those who forbid, we both leaned toward the stricter opinion. But when the Aderet came to the Land of Israel, he saw with his own eyes that it is impossible to even consider not making some sort of arrangement for the sabbatical year." (p. 258)

Arriving in Israel and seeing first-hand the precarious state of agricultural settlements was a critical factor in changing Rav Kook's mind. He understood that observing the sabbatical year fully could endanger lives and would likely cause the new settlements to collapse.

A second concern was that the entire enterprise of the return to the Land of Israel could fail over this issue. At that time, the nascent economy of the young settlement in Eretz Yisrael was based on the commercial sale of agricultural produce.

"The ICA (Jewish Colonial Association) representative informed me that the ICA is preparing plans to buy much more property in the Holy Land. But if we decide that there is no permit to allow work during the seventh year via some legal sale, then the representative will be forced to advise that they should invest their money in Canada, and cease supporting the Land of Israel. He also said that (if the land lays fallow during the sabbatical year), the Arabs will take control of Jewish land during the sabbatical year by grazing their herds on them, and it will be necessary to take them to court." (p. 285)

A third concern — and perhaps the most important for Rav Kook — was his fear that a strict ruling would plainly demonstrate that Judaism is incompatible with the modern world and the building of a Jewish state:

"Even worse is the potential condemnation of Judaism and widespread rejection of Torah observance that could result from a strict ruling, heaven forbid. For the anti-religious actually hope that the rabbis will forbid (all agricultural activity). Then they will have gained a great victory. They will prove to all that by listening to the rabbis, the land will be laid waste, the fields and vineyards will become desolate, and all commercial ties for the sale of wines, oranges and other produce will be broken — ties that the survival of the Jewish settlement truly depends on." (p. 258)

The Halachic Underpinnings of the Hetter

In his letters, Rav Kook also discussed the legal reasoning behind the hetter mechirah. The sale is actually based on a number of independent, mitigating factors, each one lessening the severity of working the land during the sabbatical year.

• The most important factor in taking a lenient stance is the ruling of most Halachic authorities that nowadays the sabbatical year no longer retains the status of Biblical law. Since it is Rabbinically-ordained, we may apply various leniencies (according to the principle of "sfeika d'rabbanan lekula").

• The hetter only permits those types of agricultural labor that are not Biblically prohibited, even when the sabbatical year itself is Biblically-ordained. Thus, planting, pruning, harvesting, fruit-picking, (and perhaps plowing) must still be performed by a non-Jew hired to work the field. This clause ensures that no Torah prohibitions are violated, even according to the minority opinion that even nowadays the sabbatical year is Biblically ordained.

• The Maharit (Rabbi Jacob Toledano (1697-1771) of Meknes, Morocco) in responsum II:52 permitted renting out land to a non-Jew for a time period that includes the seventh year. He ruled that the obligation to observe the sabbatical year is on the farmer working the land, and not on the land itself. Even those who disagreed with this ruling, nonetheless agree that an actual sale of the land to a non-Jew will permit it to be farmed, since the land is no longer the property of a Jewish farmer.

• An additional reason to be lenient is that our current situation is one of 'undue hardship' ( sha'at hadechak). Given the precarious state of the agricultural settlements, not working the land would be truly life-threatening. In such cases one may rely on a single opinion ( da'at yachid), the Rezah (Rabbi Zerachiah HaLevi Gerondi, 1125-1186), who held that nowadays, without the Jubilee year, the sabbatical year is not even rabbinically ordained, but is only a pious custom.

• Additionally, we may take into account the question regarding the correct count of the years. The Kaftor Vaferach (Rabbi Eshtori HaParchi, 1282-1357) testified that some farmers would observe the seventh year during one year, while others observed it during another. Even though the rabbis agreed to observe just one sabbatical year (and Maimonides' count was chosen), this is only a convention; the doubt still remains as to what is truly the sabbatical year.

• According to the land-deeds in (Turkish-ruled) Palestine, all land in fact belongs to the regime, not the Jewish farmer. The farmer is only a 'sharecropper of the king,' allowed to keep 90% of his produce by law (and 60-70% in practice).