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 Shabbat Parashat Vayeishev | 5768Moreshet ShaulThat Which Grows During Shemitta in a Non-Jew’s Field - Part II - 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 a 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?
Last time, we saw why the k’nas does not apply. Now we will investigate whether there is a problem along the lines of sefichin.]
Regarding the basis of the law of sefichin, the Rambam (Shemitta 4:29) says as follows: “A non-Jew who bought land in Eretz Yisrael and planted it during Shemitta, its produce is permitted, for they prohibited sefichin only because of those who violate prohibitions, and a non-Jew is not commanded in Shemitta that we should make the prohibition on him.” The Kesef Mishne (ad loc; the Radvaz, ad loc. concurs) infers from this Rambam that that which we do not prohibit refers only to cases where it is a non-Jew who does the planting. However, if it were a non-Jew’s field but a Jew improperly did the forbidden work in it, the prohibition of sefichin would exist.
However, this stringency would be true only at a time when Shemitta applies from the Torah, which, according to the Rambam, is the case today. The consensus of poskim, though, does not accept that Shemitta is from the Torah these days. This also explains why we assume that it is permitted to do commerce with a non-Jew’s produce in Eretz Yisrael. If Shemitta were from the Torah, we would say that the non-Jew does not have power to uproot the land and its produce from the kedusha of Shemitta. However, since we accept that it is now only rabbinic, we rely upon the opinion that a non-Jew has the power to uproot the kedusha (Radvaz).
Likewise, the stringency of sefichin on a non-Jew’s land worked by a Jew does not apply when Shemitta is rabbinic. In our times we assume that a non-Jew has the power to uproot the kedusha, which is a basic assumption upon which the heter mechira is necessarily based. Therefore regarding sefichin, it does not make a difference who did the work in the field, for that which a Jew should refrain from doing the work is but a stringency. Therefore, the stringency of sefichin mentioned above in the name of the Kesef Mishne and Radvaz does not apply now.
This being said, we should note that it is proper to buy produce from religious farmers, who follow the guidelines of the Chief Rabbinate and do not do work in the field that is forbidden from the Torah at a time that Shemitta itself is from the Torah. It is also worthwhile to note that vegetables that were sown before Shemitta and picked during Shemitta are not prohibited as sefichin according to most Rishonim (excluding the Rambam) even though they do have kedusha if they are in a Jew’s field. However, according to the Beit Yosef’s ruling, which is accepted in Yerushalayim, if the fields are sold to non-Jews the produce does not have kedusha of Shemitta.
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