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 Shabbat Parashat Vayishlach | 5768Moreshet ShaulThat Which Grows During Shemitta in a Non-Jew’s Field - Part I - From Chavot Binyamin, siman 9.12 - From the works of Rav Yisraeli zt”l
According to the instructions of the Chief Rabbinate, even farmers who sold, under the Rabbinate’s auspices, their fields to non-Jews should refrain from actions to the field and/or produce that are forbidden by the Torah at the time when the laws of Shemitta apply from the Torah. Therefore, sowing the field should be done by non-Jews (or, under pressing circumstances, by gerama (indirect action)). What is the status of produce that came from sowing done improperly by Jews in a normal manner?
There are two issues that must be dealt with. 1) Is there a k’nas (penalty) along the lines of the Rambam (Shvi’it 3:11) that a tree planted during Shemitta should be uprooted? 2) Is there a prohibition along the lines of sefichin, the rabbinic law prohibiting that which grew by itself in a field where sowing is forbidden, out of fear that one will plant and say that it grew by itself?
The Rambam (ibid. 4:15) discusses one who improperly sowed his field during Shemitta and the produce is ready to be harvested during the eighth year. He makes distinctions based on the purpose of the planting, which determine whether or not there is a prohibition of sefichin. One can see that only the issue of sefichin, not of k’nas,is a concern. The Ra’avad (ad loc.) argues, pointing out that even when something is planted improperly right before Shemitta, one is required to uproot it, and so certainly if one sowed a field in Shemitta he may not benefit from it. He continues that only if the produce was sown by a non-Jew or in areas that Shemitta applies only on a rabbinic level is it possible to permit it. The Kesef Mishne justifies the Rambam and says that he actually agrees with the Ra’avad, as the Rambam was talking about places where Shemitta applies only rabbinically. The Ri Korkus gives a different answer for the Rambam. He says that although one has to uproot that which was grown improperly, if the produce was not uprooted and made it until the eighth year, then the k’nas does not apply and the only issue that remains is that of sefichin.
Let us point out that the Ri Korkus was discussing a case where a Jew’s field was planted by a Jew during a time period when Shemitta applies from the Torah. The Rambam said that the fruit may still be permitted after the fact, and the Ra’avad said that then it is forbidden. However, regarding a time when Shemitta is rabbinic all would seem to agree that the produce is permitted.
The Kesef Mishne(4:29) says that except when specified otherwise, the Rambam’s discussions refer to cases where Shemitta does apply from the Torah. However, the Rambam rules that when the Yovel year is not counted, the laws of Shemitta regarding agriculture do not apply from the Torah. In Eretz Hemdah (pp. 95-100), we explained that the Kesef Mishne distinguishes between times that Yovel is counted even if in practice its laws do not apply and between times that there is not even a counting. Therefore, the Kesef Mishne can hold that there is Shemitta from the Torah in a time when there is no Beit Hamikdash but that it will not apply from the Torah in our days. We must note that regarding these days, all our present-day poskim assume that Shemitta does not apply from the Torah, As a result, there will not be a k’nas to forbid the fruit that was grown due to improper working of the land. It is also based on the assumption that Shemitta observance today is only rabbinic that we rely on the heter mechira. Consider also that the Rambam and Ra’avad discussed a case where the field belonged to a Jew, whereas we are discussing a case where the field was sold to a non-Jew.
Next time we will discuss whether the prohibition of sefichin applies to the produce of sold fields.
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