Insights into Halacha

For the week ending 26 September 2015 / 13 Tishri 5776

Shemitta Sheilos: Using Arbah Minim of Sheviis

by Rabbi Yehuda Spitz
Shemitta Basics Part VIa
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This author recently received several similar sounding Shemitta sheilos regarding the purchasing of the Arbah Minim (Four Species) for this upcoming Sukkos, the year after Shemitta - when the Arbah Minim in and from Eretz Yisrael would be from Shemitta produce; yet, quite interestingly, the answers given were not the same.

The first was from an American supplier of Arbah Minim for his city, who normally imported Israeli Esrogim et al. for Sukkos. He wanted to know if he may import his supply from Eretz Yisrael as usual. The second was from potential purchasers in Chutz La’aretz - who wanted to know whether they may buy their Arbah Minim from their usual supplier of superior Israeli ‘schoirah’ (merchandise). A third query concerned bochurim returning home to Chutz La’aretz for Sukkos: Are they permitted to take along a mehudar Esrog for themselves and perhaps their father as well? Although all of these questions sound quite similar, the halachah actually varies, due to several important factors.

Kedushas Sheviis Status

First of all, it is important to note that only two of the four Sukkos species have no debate ascertaining whether or not they contain Kedushas Sheviis status: the Esrog and the Aravah. Concerning the Esrog, as it is an edible and fragrant fruit, all agree that if it grew and was picked during Shemitta it would have Kedushas Sheviis, whereas with the Aravah, the exact opposite holds true, and all consider it not to have Kedushas Sheviis, as it has no other use than being used for the Mitzvah and is not edible nor fragrant. Yet, it turns out that both the Lulav and Hadass’ status vis-a-vis Kedushas Sheviis is not so simple.

Regarding Hadassim, as they are fragrant the issue seems dependant on whether their main use is for the Mitzvah on Sukkos, or for their fragrance, as, for example, many use them for Besamim for Havdalah. Practically, it seems that as long as they are not actively being used for their fragrance and rather for Sukkos use, most contemporary authorities consider Hadassim not to be Shemitta produce, and allow them be purchased as usual, as opposed to produce imbued with Kedushas Sheviis (as explained in previous articles).

Lulavim’s status, on the other hand, is even more interesting, as, although the Mishnah (Sukkah 39a) initially implies that Lulavim grown during Shemitta are not inherently considered Kedushas Sheviis produce, nevertheless, the Gemara (ad loc. 39b) explains that the Mishnah was referring to Lulavim from the 6th year (Shishis), meaning that Lulavim grown during Shemitta are indeed considered Shemitta produce.

However, the Rambam nonetheless rules that even Lulavim grown during Shemitta are not imbued with Kedushas Sheviis. Although many authorities are at a loss to explain how the Rambam can seemingly rule against an explicit Gemara, all the same, practically, the majority of Rishonim and Acharonim follow the Rambam’s precedent and consider a Lulav grown during Shemitta not to contain Kedushas Sheviis, and allow it to be purchased as usual.

Swallowing the Esrog ?

This makes a practical difference, as one of the ways the Gemara allows ‘the purchase’ of an Esrog, which all agree contains Kedushas Sheviis and ergo may not be actually purchased, is by ‘havla’ah’ (literally ‘swallowing’) on the Lulav. This refers to only paying for the Lulav with the price of the Esrog incorporated into the Lulav’s purchase price, which would therefore be somewhat higher than usual. Therefore if one is lenient with the Kedushas Sheviis status of the Lulav and / or Hadassim, he may pay more than usual for those items and acquire a ‘free’ Esrog along with it. However, if it is blatantly obvious from the prices that one is really essentially paying for the Esrog, then several poskim point out that ‘havla’ah’ may not actually work to solve the issue.

Otzar Beis Din

Although the optimal solution for those of us here in Eretz Yisroel seems to be find orchards keeping Shemitta properly and finding and picking our own hefker Esrogim (and for the machmirim - also Lulavim and / or Hadassim), for the vast majority of us time- challenged and non-agriculturally inclined, this is not a feasible possibility.

Therefore, it seems that our best bet is to rely on a properly run Otzar Beis Din to avoid the many potential and probable halachic issues arising from just finding and acquiring our own set of Arbah Minim. In fact, the Badatz Eidah Chareidis, although known for their avoidance of utilizing Otzar Beis Din for Kedushas Sheviis produce all Shemitta long, nevertheless sets up an Otzar Beis Din exclusively for Esrogim, as there is no other practical option to allow the masses to perform the Mitzvah of Arbah Minim properly on Sukkos immediately following the Shemitta year.

The institution of Otzar Beis Din is based on the Tosefta, that explains that during Shemitta, Beis Din has the right to gather (hefker, ownerless) Kedushas Sheviis produce to store and distribute it as they see fit in small quantities. It also mentions that they may appoint workers to aid with their task. Therefore, many contemporary Gedolim, most notably the Chazon Ish, championed the cause of setting up Otzar Batei Dinim to enable distribution of Kedushas Sheviis produce, which still has to get from the field to the consumer, as well as ensuring proper Shemitta observance.

Although one may not actually pay for Kedushas Sheviis produce, as it is halachically ownerless, and as explained in previous articles, there is an ‘Issur Schoirah’ (prohibition) on business transactions with Shemitta produce, nonetheless, the Otzar Beis Din workers may get paid for their time and effort as well as distribution costs. However, this means that the price one pays for Otzar Beis Din Kedushas Sheviis produce must be significantly and substantially less than one would generally pay for such produce in an ordinary year.

Additionally, such produce may not be bought in the regular manner, but rather acquired (as one is not actually purchasing, but rather receiving a distribution, with payment exclusively reserved for necessary operating costs) on credit or in advance, with no regard to the actual weight or amount of each individual item. Of course, since Otzar Beis Din produce contains Kedushas Sheviis it must be treated as such, with all of the nuances that entails.

Therefore, it seems that the best solution for the masses in Eretz Yisroel is to utilize a properly run Otzar Beis Din from which to select Esrogim. Most would do so only with closed box sets, with the Esrogim categorized by the Beis Din by several levels of quality and hiddur. Although, the price for an ‘Alef Alef Esrog’ is still higher than the lower categories, this is due to the extra care they require from the workers of the Otzar Beis Din. Additionally, the Beis Din tallies up their total expenses and divides it up per Esrog, with purchasers of the higher quality Esrogim paying a higher percentage of the sales, mimicking, on a smaller scale, what is considered acceptable in a normal year, that a higher quality Esrog fetches a higher price. In any case, the total price for such an Otzar Beis Esrog should only be a fraction of the price such an Esrog would be ‘worth’ (perhaps up to a quarter or a third) in a normal year.

What About Chutz La’aretz?

That is fine for those of us privileged to be in Eretz Yisroel for Sukkos. But for those in Chutz La’aretz, Otzar Beis Din presents a plethora of problems, and a cornucopia of complications…

This will be fully addressed in the following article.

Note: This article is not intended to serve as an exhaustive guide, but rather to showcase certain aspects of the intricate and myriad halachos of produce imbued with Kedushas Sheviis. One should ascertain from his own halachic authority what he should personally do for acquiring his Arbah Minim.

This article was written l’zechus Shira Yaffa bas Rochel Miriam v’chol yotzei chalatzeha for a yeshua sheleimah teikif u’miyad!

For any questions, comments or for the full Mareh Mekomos / sources, please email the author:

Rabbi Yehuda Spitz serves as the Sho’el U' Meishiv and Rosh Chabura of the Ohr Lagolah Halacha Kollel at Yeshivas Ohr Somayach in Yerushalayim.

Disclaimer: This is not a comprehensive guide, rather a brief summary to raise awareness of the issues. In any real case one should ask a competent Halachic authority.

L'iluy Nishmas the Rosh HaYeshiva - Rav Chonoh Menachem Mendel ben R' Yechezkel Shraga, Rav Yaakov Yeshaya ben R' Boruch Yehuda.

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