Halakha: A Weekly Shiur In Halakhic Topics
Yeshivat Har Etzion

Shiur #21:  THE SHEMITA OF LAND AND THE SHEMITA OF MONEY (PART II)

by HaRav Yehuda Amital*

THE PROHIBITION TO WORK THE LAND: WHO MUST REST – MAN OR THE LAND?

            In addition to the obligation to renounce proprietary rights to produce that grows during the sabbatical year, which we discussed in the previous shiur, there is another mitzva related to the shemita of land, namely, that the land should rest from work – "in plowing and in harvest you shall rest" (Shemot 34:21). The fundamental question regarding the definition of this mitzva is whether we are dealing with an obligation falling upon the land, i.e., that the land must rest, as the verse states: "There shall be a sabbath of solemn rest for the land" (Vayikra 25:4); or perhaps we are dealing with an obligation falling upon the person, namely, that a person must not work his land during the seventh year. The Maharshal (Hagahot to Bava Metzia 90a) and the Minchat Chinukh (mitzvot 112, 326, 329, and 298) maintain that a non-Jew must not be allowed to work land belonging to a Jew during the sabbatical year, because the mitzva is that the land should rest. The Maharit (pt. II, no. 52) disagrees and says that it is permissible to rent out the land to a non-Jew, provided that payment be received indirectly (by way of havla'a).

            The Rambam in his Sefer Ha-mitzvot (mitzva 135) defines the mitzva of resting from work as follows:

Commandment 138 is that we were commanded to rest from working the land during the seventh year. This is what the blessed One said: "In plowing and in harvest you shall rest" (Shemot 34:21). This command was repeated several times, as it says: "There shall be a sabbath of solemn rest for the land" (Vayikra 25:4). And [the Sages] already said that this "solemn rest" is a positive commandment. And it also says: "Then shall the land keep a sabbath to the Lord" (Vayikra 25:2). The laws of this mitzva were also already explained in tractate Shevi'it. The obligation by Torah law is only in Eretz Israel.

            The Rambam's formulation here implies that the mitzva falls upon the person, and not upon the land. In the heading to his Hilkhot Shemita, however, the Rambam writes that the mitzva is that "the land should rest from its work," implying that we are dealing with a prohibition falling upon the land. But immediately thereafter in the body of the text the Rambam speaks about the person resting: "There is a positive commandment to rest from working the land and tending to trees during the seventh year."

            Rav Kook in Shabbat Ha-aretz argues that indeed the mitzva falls upon the land, but with respect to work during the sabbatical year, only the work of a Jew is regarded as work. Thus, when a non-Jew works the land, the land is still regarded as resting, and thus, even though we accept the Maharshal's principle, in actual practice we rule like the Maharit that a non-Jew is permitted to work a Jew's land during the sabbatical year.

            The fundamental disagreement regarding the definition of the mitzva follows from the Gemara in Avoda Zara 15b. The Gemara there states that even though fundamentally speaking one is forbidden to sell an animal (used for work) to a non-Jew – owing to a decree lest he come to lend or hire out the animal to the non-Jew, in which case there is a problem if the animal works on Shabbat while he is in the non-Jew's hands, the Jewish owner transgressing the command regarding the resting of one's animals – nevertheless we find that certain Amoraim sold animals to non-Jews. The explanation is given that since there is room to assume that the non-Jew purchased the animal for slaughter, there is no concern about the obligation to ensure that one's animal will rest on Shabbat. The source of this allowance is found in the Mishna:

From the Mishna which teaches: Bet Shammai say: One should not sell a ploughing-cow during the sabbatical year; but Bet Hillel permit it, because he may possibly slaughter it.  Rabba said: How can the two be compared: In that other case, one is not commanded to let one's cattle rest on the sabbatical year, whereas in our case, one is commanded to let one's cattle rest on Shabbat! Abaye said to him: Are we to take it then that when one is commanded [concerning a thing] he is forbidden [to sell it to one who may disregard the command]? Take then the case of a field — for one is commanded to let his field lie fallow on the sabbatical year. Yet it has been taught: Bet Shammai say: One may not sell a ploughed field on the sabbatical year, but Bet Hillel permit it, because it is possible that he will let it lie fallow [during that year]!

            Abaye compares the resting of one's field during the sabbatical year to the resting of one's animal on Shabbat. This supports the position of the Maharshal, that a non-Jew must not be allowed to work a field belonging to a Jew during the sabbatical year, just as a non-Jew must not be allowed to work an animal belonging to a Jew on Shabbat. This also follows from a precise reading of the words of Rashi:

For one is commanded to let his field lie fallow on the sabbatical year - "There shall be a sabbath of solemn rest for the land."

            The Tosafot, however, offer a different explanation:

And it asks: Surely a field, which one is commanded to let lie fallow on the sabbatical year - when it is in the hands of another Jew, a Torah prohibition is violated if that other Jew sows it, but we make assumptions and allow [him to sell it to him].

            The Tosafot explicitly disagree with the Maharshal and the Minchat Chinukh, for according to the Tosafot only the work of another Jew cancels out the resting of the land, but not the work of a non-Jew.

            The Rid explains the Gemara's question not in accordance with the understanding of the Minchat Chinukh or the Maharshal, but when he gets to the answer he reverses himself:

I have great difficulty. Is the commandment to let one's field rest during the sabbatical year similar to the commandment to let one's cattle rest on Shabbat. The commandment to let one's field rest during the seventh year is only that he himself should not work his field. But if he rented out his field to one who is suspect regarding the seventh year, he does not violate [any prohibition] other than the prohibition to put a stumbling block before the blind. And to rent out his field to a non-Jew during the seventh year does not involve a Torah prohibition, for Israel was not commanded that the land should rest, but only that they should not do any work. But regarding the commandment to let one's animal rest on Shabbat, there is a Torah prohibition whether he [himself] does the work or it is done by a non-Jew. For the verse states as follows: "That your ox and your ass may rest as well as you." One is obligated to allow it to rest, so that they will not be used for work, even by non-Jews… It might be suggested that regarding the sabbatical year we were commanded that the land must rest, as was explained by Rashi, that we learn from "there shall be a sabbath of solemn rest for the land" that one is forbidden to rent out his field to a non-Jew during the seventh year. But on Shabbat we were not commanded that the land must rest.

            Rav Kook argues that the Rambam's wording in his Sefer ha-Mitzvot proves that there is no difference between "there shall be a sabbath of solemn rest for the land" and "in plowing and in harvest you shall rest." Both of them are commandments imposed on the person and not on the land, against the Minchat Chinukh. He reconciles the contradiction between the heading to Hilkhot Shemita and the body of the laws as we explained above, that the land is regarded as resting as long as it is a non-Jew who works it and not a Jew.

THe Shemita of Money

            The same fundamental question that we raised regarding the renouncing of proprietary rights to produce arises with respect to the shemita of money: Are debts automatically released by the Torah, or perhaps a person is commanded to release his debts, and as long as he fails to do so, the debt still exists.

            The Torah states:

At the end of every seven years you shall make a release. And this is the manner of the release: every creditor that lends anything to his neighbor shall release it: he shall not exact it of his neighbor, or of his brother: because he has proclaimed a release to the Lord. Of a foreigner you may exact it again: but that which is yours with your brother you shall release. (Devarim 15:1-3)

            And thus rules the Rambam in Hilkhot Shemita (chap. 9):

There is a positive mitzva to release debts during the seventh year, as it is stated: "Every creditor that lends anything to his neighbor shall release it." One who demands a debt over which the sabbatical year passed violates a negative commandment, as it is stated: "He shall not exact it of his neighbor, or of his brother."

            And later in the chapter he writes (halakhot 29-29):

Whoever repays a debt over which the sabbatical year passed – the Sages are pleased with him. The creditor must say to him who comes to repay [his debt}: I have released the debt and you are already exempt from [repaying] me. [If] he says to him: Nevertheless I want you to accept [repayment], he may accept it from him, as it is stated: "He shall not exact," and he has not exacted. [The debtor] must not say to [the creditor]: I am giving you [this money as repayment of] my debt, but rather he should say to him: [This money] is mine, and I am giving it to you as a gift.

[If] he returned his debt, but didn't say this, [the creditor] should direct the conversation until he says to him: [The money] was mine, and I gave it to you as a gift. If he did not say this, he should not accept [the money] from him, but rather, he should take the money and go off.

            The Rishonim disagree whether it is the Torah that releases the debt or perhaps it is the creditor who releases the debt when he says: "I release [the debt]." The Yere'im (mitzva 164) maintains that the creditor must release the debt:

A debt over which the seventh year passed, the borrower may only withhold repayment on the word of the lender. For as long as the lender has not released [the debt], [the borrower] is obligated to repay. But the borrower can summon the lender to court that he should release his debt as commanded by the Creator, and the court will obligate the lender to say: "I release [the debt], as ordered by the Sages." As we learned in the Mishna at the end of tractate Shevi'it, and it is brought in Ha-Shole'ach (Gittin 37b): One who repays a debt during the seventh year – [the creditor] must say: I release [the debt.] And if he says: Even so, he may accept [payment] from him. As it is stated: "And this is the manner of the release." And if the lender does not want to say: I release [the debt], the court may compel him [to do so]. As it was taught in a Baraita in Ketubot in Ha-Kotev (86a) regarding what it says that repaying a creditor is a mitzva, but if he doesn't want to do a mitzva, what is the law. He said to him: It was taught in a Baraita: When does this apply? Regarding negative commandments. But regarding positive commandments, e.g. where they said to him: Make a sukka or a lulav, and he refuses to do so, they flog him until his soul departs.

            The Or Zaru'a (IV, piskei Avoda Zara, no. 108) disagrees. According to him, the release of debts falls into the category of afkata de-malka – expropriation by the [Divine] king:

It is not right what he wrote that the borrower can only withhold payment on the word of the lender, if he says: I release [the debt]. Rather, even if [the creditor] demands payment in court, saying: I do not release [the debt], the borrower need not be concerned about what he says, for the Torah released [the debt].

            There is a consensus among the posekim that the view of the Yere'im on this matter is a sole dissenting opinion, and that in practice the release of debts is regarded as afkata de-malka, automatically imposed by the Torah.

(Translated by David Strauss)