The Objection of the Ridbaz

One of the most vociferous opponents to the "hetter mechirah" — the temporary sale of land in Israel to a non- Jew to avoid the restrictions of the sabbatical year — was the Ridbaz (Rabbi Ya'akov David Willowski, 1845-1913), the erudite rabbi of Safed. More interesting than his Halachic objections to the sale, however, is the philosophical argument that the Ridbaz raised.

This stated purpose of the hetter, the Ridbaz wrote, is to protect the fledgling agricultural settlements in the land of Israel, so that they may grow and prosper. But if the legal sale is indeed effective, then the land would loose its sanctity and no longer be obligated in its special agricultural mitzvot — tithes, the sabbatical year, and so on. And if the land is not holy, there is no longer a mitzvah to settle the land. Thus the hetter in effect undermines the very goal it was designed to support.

To paraphrase the Ridbaz: the whole purpose of our return to Eretz Yisrael is to fulfill its special mitzvot and merit its unique sanctity. If we use loopholes and legal fictions to avoid these mitzvot – we may as well be living in Warsaw or New York!

Rav Kook and the Hetter

Despite common misconceptions, Rav Kook was not the author of the "hetter mechirah." This legal loophole was first designed for the Sabbatical year of 1889. At that time, Jewish farmers in Eretz Yisrael whose livelihood depended upon the production and export of wine and citrus fruits turned to the great Halachic authorities in Europe to find a way to avoid the ruin of the fragile industry that they were struggling so hard to build up. Were they to let the land lie fallow, the young orchards would suffer greatly, and the export business they had built up would be lost. They also feared that land left fallow could be lost in legal battles to squatters and thieves.

In response to this difficult situation, three prominent rabbis met in Vilna and devised the "hetter mechirah", based on similar legal sales to avoid the prohibitions involved with "bechorot" (first-born animals) and chametz on Passover. The hetter was approved by the famed Halachic authority Rabbi Yitzchak Elchanan Spector; however, many prominent rabbis opposed it — including some of the greatest authorities of the time — and the controversy over the "hetter mechirah" was born.

As rabbi of the town of Jaffa and its surrounding communities, Rav Kook needed to take a position regarding the hetter. While still in Europe, he had discussed the issue with his father-in-law (later chief rabbi of Jerusalem), and they both decided against supporting it.

But after coming to Eretz Yisrael and seeing the dire need first hand, Rav Kook changed his mind and became a staunch supporter of the leniency. Prior to the sabbatical year of 1910, he wrote a Halachic treatise in defense of the "hetter mechirah" entitled "Shabbat Ha'aretz".

The Sanctity of the Land

In his preface defending the hetter, Rav Kook responded to the Ridbaz's objection. Does not the hetter undermine its own stated goal — supporting the settlement of the land of Israel — by selling the Land to non-Jews and thus annulling its special mitzvot and sanctity?

This argument, Rav Kook explained, is based on the false premise that the special holiness of Eretz Yisrael is limited to "mitzvot hateluyot ba'aretz," those mitzvot that only apply in the Land. According to this view, once these special mitzvot are no longer binding, there is no longer any mitzvah to settle the Land.

But this is not the true outlook of the Torah. Instead, we should compare the mitzvah of settling the land of Israel to the mitzvah of studying Torah. Even though Torah study enables one to learn about and properly discharge all mitzvot, one cannot say that the value of Torah study is only as a preparation to fulfilling mitzvot. In truth, the act of Torah study is intrinsically holy. Even when studying subjects that are not currently practiced — such as the laws of the Temple service — this study is nonetheless invaluable. As the Sages taught (Menachot 110a): "One who studies the laws of the chatat-offering is considered as if he offered a chatat." 

The holiness of the Land of Israel is similarly independent of those mitzvot that may be fulfilled while living there. Just the opposite: the primary holiness of the Land is dwelling in it, and the "mitzvot hateluyot ba'aretz" are an expression of this special holiness. As the Sages taught, just living in the Land is equal to all the mitzvot in the Torah – and this includes those mitzvot that only apply in the Land.

Equal to All the Mitzvot

This statement about the comprehensive value of dwelling in the Land is mentioned in the Sifri (sec. 80) in the following story:

"Rabbi Elazar ben Shamua and Rabbi Yochanan HaSandlar were traveling to Nitzivim (in Babylonia) to study Torah from Rabbi Yehuda ben Beteira. But when they arrived in Sidon, they remembered the land of Israel. They lifted their eyes and their tears flowed. They rent their garments and read this verse: "You will drive them out and dwell in their land"  (Deut. 12:29). They returned to their homes and declared: Dwelling in the land of Israel is equivalent to all of the mitzvot of the Torah."

These scholars wanted to leave Eretz Yisrael for spiritual reasons — to study Torah from the esteemed Rabbi Yehuda ben Beteira – yet they decided that the mitzvah of dwelling in the Land took precedence. They placed greater value in living in Eretz Yisrael, and this was at a time when the country suffered from foreign rule and economic hardships. The mitzvah of living in the Land was still in force, even though the Sages of that time found legal loopholes to lighten the financial burden of certain mitzvot, such as Hillel's pruzbul, and avoiding tithes by bringing produce into the house by way of the courtyard or the roof (Berachot 35b).

Why did these scholars quote this particular verse, "You will drive them out and dwell in their land"? Apparently, they noted that the word 'their' is extraneous; it could have just read, "and dwell in the land." They deduced from here that even when the land has not been conquered from the nations — even when it is still considered 'their land,' the land of the Canaanite nations, and many of the land-dependent mitzvot are not yet incumbent — nonetheless we are obligated to dwell in the land.

This lesson was also true for the time of Rabbi Elazar ben Shamua and Rabbi Yochanan HaSandlar. Even after the destruction of the Temple, a time of foreign rule and economic troubles, the mitzvah of dwelling in the Land is still equal to all the mitzvot.

We find that the author of the work "Kaftor Vapherach"  similarly wrote (ch. 10) that the sanctity of the land of Israel is independent of the "mitzvot hateluyot ba'aretz." His proof: why did Jacob and Joseph and Moses all desire to be buried in the Land — it had not yet been conquered and sanctified?

In summary, Rav Kook wrote, it is not only possible to be lenient in our days, it is proper to do so, in order to encourage settlement of the Land. Furthermore, the hetter does not completely cancel all aspects of the sabbatical year; it only permits those types of agricultural labor that are Rabbinically prohibited. Thus the Shemittah year is not completely uprooted. This hetter, Rav Kook explained, is similar to the permission — and obligation — to desecrate the Sabbath in life-threatening situations. As the Sages wrote: "The Torah teaches that we should desecrate a single Sabbath for one whose life is in danger, so that he will be able to keep many future Sabbaths" (Yoma 85b).

(adapted from the preface to Shabbat Ha'aretz, pp. 61-63)

Copyright © 2006 by Chanan Morrison