Q&A: The Sale Permit (Heter Mekhira)
The Sale Permit (Heter Mekhira)
Question
Hello Rabbi Michael, I wanted to ask you about the sale permit. Is it acceptable, from the outset, to be lenient with it? Or is it proper to be stringent on this issue, like the Haredim, and why?
Answer
In my opinion there is no reason at all not to be lenient. In fact, in my view it is forbidden to “be stringent” (and therefore this is not a stringency but a leniency) in accordance with the Haredi position.
The explanation is that the Haredi solution is not practical in our time. If a farmer really leaves his fields fallow and does not work during the Sabbatical year, he loses his markets for the coming years as well. After all, there are no gaps in the market. His customers will buy from others who take his place. It is clear that they oppose the permit only because they do not care about the fate of the farmers (since there are no Haredi farmers, from their own circles).
Just imagine: if it is permitted to sell leavened food, where nobody suffers any loss and the issue involves a Torah prohibition, why should it be forbidden to sell land during the Sabbatical year, where years of livelihood are at stake and the prohibition is only rabbinic (and according to Rabbi Ovadia, merely a custom)? Can you see any logic in that?
They buy fruit and vegetables from Arabs, partly in order to avoid handing over Land of Israel territory to gentiles (“do not show them favor” — do not give them a holding in the land). Really strange, no? If buying vegetables from them does not increase their hold on the land, I do not know what does.
So it is quite clear to me that this is a political battle and about economic interests (the marketers of the “mehadrin” produce are a well-known group of crooks, and there is enormous fraud there), and one should pay no attention whatsoever to the Haredi nonsense on this issue (as on most other issues as well).
Discussion on Answer
As far as I know the Haredi sector, the hardcore types do not eat either leavened food that was sold or produce from the sale permit. Second, if you admit that you are not fully versed in the details, maybe you also cannot rule so decisively on the subject? (And also mockingly declare that this is Haredi nonsense.) Maybe if you dig deeper you will discover that in most cases it is not done according to the proper halakhic precision?
Of course, but they do allow business owners to sell their leavened food (and then, in a way that contradicts the categorical imperative and common sense, they do not consume it).
You do not need any expertise in the practical details in order to determine what I determined.
Are you claiming that the Chazon Ish’s opposition to the sale permit stems from indifference?
Regarding the claim about the farmer’s losses and the promise of double produce: does the fact that markets function differently today count as a factor in this issue if we were to reach the conditions that applied then?
I didn’t understand.
If part of the argument for the sale permit is that the farmer will lose out, then nowadays, when agriculture is mainly an economic matter and not a matter of survival for the farmer himself (that is, the farmer is not necessarily living off his own produce), and the markets are global, with supply and demand and so on, then the promise of produce would have less impact. Would that change the attitude?
I don’t know. The promise has significance on the collective level as well.
Questioner:
I accept the position, just a few questions so I can understand better. Regarding what you said, that the farmer will lose his customers — couldn’t one say the same thing about a business owner or factory owner who keeps the Sabbath? Meaning, even if the farmer loses his customers, is that severe enough to permit the Sabbatical-year prohibition?
Also, you wrote that the Haredi solution is not practical in our time. Did you mean that it was practical only in ancient times (say, in the First and Second Temple periods)?
Also, from what I know of the Haredi position, unlike the sale of leavened food — where there is no problem from the seller’s side if the transaction is actually carried out — in the sale of state lands, if the non-Jewish party were to demand all the state’s lands, the state would not agree to hand over all its agricultural lands to foreign parties. Therefore they see the sale as a kind of sham, unlike the sale of leavened food, where there is no problem selling all of the country’s leavened food.
In addition, on the face of it, selling land to an Arab sounds closer to the prohibition of “do not show them favor” than giving a gentile a livelihood wherever he may live. After all, there is no prohibition against buying or selling merchandise to an Arab out of concern that this will strengthen his hold on the land and thereby violate “do not show them favor.”
In addition, doesn’t this mean that one can effectively cancel the commandment of the Sabbatical year entirely through the sale, and thereby uproot a Torah commandment?
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Rabbi:
This does not permit a Sabbatical-year prohibition; it permits using a legal workaround regarding the Sabbatical-year prohibition. As for the Sabbath, I do not know of a way to use a workaround, and if there were such a way then in a case of financial loss it would be permitted.
The Haredi solution of buying from gentiles was not relevant in ancient times, because then there was a Torah promise that in the sixth year there would be double produce. Nowadays, when the Sabbatical year is not Torah-level, there is no such promise.
The sale is not a regular sale of land. And the question whether this is a sham finds its answer in the structure of the sale. If it is legally valid, then it is a valid sale, period. It does not matter at all what this or that person thinks. As for intentions, with leavened food too the intentions are no different. Everyone sees it as the “ceremony of selling leavened food.”
They are not really selling him the land itself.
Indeed, that is the real concern. But as I said, there is no commandment of the Sabbatical year nowadays, and this is rabbinic or customary. So in any case it is already effectively canceled.
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Questioner:
A friend of mine challenged me with a difficulty about the validity of the sale. On the one hand you argued that they are not really selling the land to the gentile (and therefore one does not violate “do not show them favor”), and on the other hand you argued that the sale is halakhically valid and is not considered a fictitious sale (and therefore one does not violate the prohibitions of the Sabbatical year). There is a kind of contradiction here, no?
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Rabbi:
I did not understand the question. They do sell, but not the actual body of the land in a complete sense. But what is sold is sold — meaning, this sale is valid according to Jewish law and civil law. For example, if I sell only rights to the land’s produce but not the land itself, is it impossible for such a sale to be valid?
If you want to delve into this, there is plenty of material on the way the sale is done. I am also not fully versed in the details. There is surely a lot of material online.