Another Aspect of the Heter Mechira: How Much Must One Lose to Avoid a Rabbinic Prohibition

Rabbi’s Opening Post

Another Aspect of the Heter Mechira: How Much Must One Lose to Avoid a Rabbinic Prohibition

Sent on 8/7/2007

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Another Aspect of the Heter Mechira: How Much Must One Lose to Avoid a Rabbinic Prohibition

In recent days, following some private correspondence, I was led to consider an additional aspect regarding the Heter Mechira in the Sabbatical year. A farmer who leaves his field entirely fallow in accordance with the Torah’s command may lose his future livelihood (and certainly a significant part of it, to the point that farming will no longer be worthwhile for him; see the evacuees from Gush Katif), since if his market niche is taken over by someone else (certainly in foreign markets, but not only there), he will not be able to return to selling there.

And since the Sabbatical year in our time is rabbinic, the question arises whether the farmer may continue to work his land even without the Heter Mechira, simply because of the economic consideration. Of course, if he can rely on a sale arrangement, that is preferable, but in principle one should ask whether this is necessarily required at all.

Admittedly, such a leniency could be relevant only to the farmer, since we as consumers are not in the same predicament. But if we do not buy this produce, he still will not be able to make a living. Could there be such a leniency that would also have implications for consumers?

An example is the permission to sell actual leaven to businesses engaged in food retail (because of substantial financial loss. And in my humble opinion it is permitted even without substantial loss, since there is no concern at all that their sale lacks genuine intent, for all they want is to sell, and their wish is that the gentile should indeed take all the merchandise). Many have the practice not to buy actual leaven that was sold over Passover by stores or factories, and I, the humble writer, do not understand this approach: if there is indeed such a leniency, then it must include the consumers as well, for otherwise it has no meaning. If no one will buy from them after the festival, what did the sale for Passover accomplish? For purposes of the discussion, let us ignore the fact that some will buy from them without concern because they are not observant Jews. First, one should discuss the situation in which all of us are observant. After that, in my opinion, one should also discuss the situation in which there are some who are not observant: should we rely on them, or, if there is permission to sell, is there also permission for us to buy?

My questions:

A. How much of his own money is a person obligated to spend in order to avoid a rabbinic prohibition (for a positive commandment, one must spend up to one-fifth; for a negative prohibition, all his wealth). Already here I would note that the anticipated attempt to base this on the negative commandment of ‘do not turn aside’ (Deuteronomy 17:11), on the grounds that it is a negative prohibition, is in my view incorrect, for several reasons: 1. This is only according to Maimonides, and in my opinion it is not correct even according to his view that every rabbinic prohibition constitutes a biblical negative commandment. 2. Such a person does not violate ‘do not turn aside,’ for he is not defying the sages but is compelled to violate their words (all the more so in light of the well-known passage in Netivot HaMishpat, sec. 234, who says this regarding an unintentional transgressor). 3. And even one who disagrees with the Netivot would agree that, even if there is a substantive prohibition (and not merely a duty of obedience), it is only rabbinic, and therefore one cannot derive from biblical law how much one must spend in order not to violate it.

B. Is this consideration indeed relevant to a farmer during the Sabbatical year, and would it not certainly greatly strengthen the Heter Mechira? Has anyone already addressed this aspect?

C. What does this mean with regard to consumers? Is the consideration I raised regarding consumers correct? Two cases require discussion: 1. when there is no one who is not observant who will buy the merchandise. 2. when there are such people who will buy it without us.

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Miky

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Source (forum ‘Stop Here, Think’): http://www.bhol.co.il/forums/topic.asp?topic_id=2240318&forum_id=1364