Insights into Halacha

For the week ending 26 March 2016 / 16 Adar II 5776

Shemitta/Purim Sheilos

by Rabbi Yehuda Spitz
Mishloach Manos with Shemitta Produce
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Although we are currently in the eighth year (Shnas Hashminis) of the Shemitta cycle, and hence actually post-Shemitta, all the same, now is the time when many Shemitta Sheilos first occur, as much Kedushas Sheviis produce is only now flooding the marketplace and becoming commercially available. The vigilant consumer must remain on high alert to know how to properly deal with these ‘holy fruit’. As detailed at length in previous articles,[1] Chazal derived several essential Shemitta halachos pertaining to preserving the sanctity of Kedushas Sheviis produce from several pesukim in Parshas Behar.

The Torah states (Vayikra Ch. 25: 6 & 7) referring to the Shemitta year, “V’haysa Shabbos Ha’aretz Lachem L’achla…V’livhemtacha V’lechaya Asher B’artzecha Tihiyeh Kol Tevuasa Le’echol - And the Resting of the Land should be for you to eat… and for your domesticated animals and the wild animals in your fields, all the produce should be for consumption”.

Personal Uses

One important halachah that is inferred from these pesukim is:

Lachem- for you, lechol tzarcheichem, for all of your needs. (Sukka 40a and Bava Kamma 102a)

According to the Mishnah, and duly codified as halachah,[2] Kedushas Sheviis produce is not only permitted to be eaten, it is even allowed to be utilized in whichever manner the owner deems it necessary: drinking, anointing, dyeing, and even lighting. However, there is a very important caveat, namely that the owner’s use of it during Shemitta must be that product’s main use year round. Otherwise, it would be considered ‘ruining’ the ‘holy’ fruit and duly prohibited.[3]

But what happens when the owner needs it for a purpose that is one that he may not halachically benefit from? For example, there is a well-known Talmudic dictum that ‘Mitzvos lav lehenos nitnu, [utilizing something by] fulfilling a Mitzvah is not considered receiving benefit’ (Eruvin 31a). Although regarded as a ‘need’, a Mitzvah is not deemed an actual personal benefit. If so, may one use Shemitta produce to fulfill such a Mitzvah or obligation?

Previous articles discussed several Mitzvos involving actually eating or drinking the Shemitta produce, such as using Kedushas Sheviis wine for Kiddush, Havdallah, and the Arba Kosos at the Pesach Seder, which since involving direct bodily benefit (hana’ah), as long as one sticks to the guidelines of not ‘ruining’ the ‘holy wine’, it would be permissible to use for these Mitzvos. But what about Mitzvos containing indirect benefit? Are they included in the ‘personal use leniency’?

Giving Kedushah ?

The issue in this category most commonly addressed by contemporary authorities involves using Shemitta oil for Chanukah lights. This contemporary debate was featured in a recent article.[4] Another fascinating related and timely discussionis whether one may send Kedushas Sheviis produce as Mishloach Manos on Purim. The crux of the matter seems to be defining whether this Purim Mitzvah is considered an outright obligation or a personal need.

This issue is similar to that of Chanukah lights as it is also Rabbinic Mitzvah that one receives indirect benefit by performing. It is also analogous in that there is no clear-cut solution, but rather its permissibility is disputed among contemporary authorities as well.

Ish Lere’eihu…

Several poskim, including the Ben Ish Chai, the Rogatchover Gaon, Rav Yosef Shalom Elyashiv zt”l, Rav Shmuel Halevi Wosner zt”l, Rav Mordechai Eliyahu zt”l, and yblch”t Rav Chaim Kanievsky and the Mishnas Yosef, and maintain that since the Mitzvah of Mishloach Manos is obligatory, sending Kedushas Sheviis produce for Mishloach Manos is akin to using Shemitta produce to pay a debt,[5] an action which should be prohibited under the rule of L’achlah- for you to eat, and not for sechorah, merchandise or commercial use; this restriction includes paying a debt.[6] These poskim aver that this especially holds true regarding the common custom of ‘returning the favor’, reciprocating with giving Kedushas Sheviis Mishloach Manos to one who has already gifted you with Mishloach Manos.

On the other hand, it is reported that the Steipler Gaon would send Mishloach Manos consisting of Shemitta produce, emphasizing that we may perform Mitzvos with Kedushas Sheviis fruits.[7] Other authorities who ruled this way include Rav Elazar Menachem Mann Shach zt”l, Rav Shlomo Zalman Auerbach zt”l, the Minchas Yitzchak zt”l, and yblch”t Rav Nissim Karelitz, and Rav Asher Weiss.[8] They maintain that the obligation of a Mitzvah, although binding, is nevertheless not considered akin to monetary debt to be excluded from proper Shemitta uses. Rather, they maintain that it is considered a personal use, which may indeed be fulfilled with Shemitta produce. Hence, ‘Holy Mishloach Manos’ would indeed be permitted.

It is important to note however, that even the machmirim agree that their proscription only applies to the first Mishloach Manos one gives / sends, as one is only truly obligated in giving just one set of foods to one person.[9] After that first package, they allow giving all additional customary Mishloach Manos to others with Shemitta produce, as the actual requirement has already been fulfilled.

It goes without saying that if choosing to use Shemitta produce as part of one’s Mishloach Manos, then one should always notify the recipient that the gift contains ‘holy fruits’ so they will know to treat it accordingly.

Keeping Abreast of Biur

Another important issue relevant to using Shemitta fruit for Mishloach Manos is that it is subject to the laws of Biur. As detailed at length in previous articles, this refers to taking Kedushas Sheviis produce out of the house to a public place and giving up all rights to the fruit, announcing it as ‘hefker’ in front of three people.[10] Every type of fruit has its own specific Zman Biur, time of year when this must be performed, as it depends on when each species of fruit is no longer commonly available in the fields.

The Gemara (Pesachim 53a) informs us of the Biur dates of four types of fruit: dried figs on Chanuka, dates on Purim, grapes on Pesach, and olives on Shavuos - all in the eighth year. Although the Mishnah (Sheviis Ch. 9: 2 & 3) divides Eretz Yisrael into nine different ‘zones’ for Biur, nowadays since the exact locations are unclear and all types of fruit are readily available throughout Eretz Yisrael, the consumer must keep abreast of the actual Biur dates publicized in newspapers by the experts in the Agriculture industry.

That means that if one chooses to give Mishloach Manos with Kedushas Sheviis produce, it must be prior to that individual fruit’s Zman Biur. Or, it can be produce that one actually performed Biur on in its proper time and then re-acquired.[11] Otherwise, if one neglected to properly perform Biur in its appropriate time, said produce will actually become prohibited. Certainly while fulfilling a Mitzvah, one would not want to Chas Veshalom be the cause of another’s transgression.[12] Just another matter of concern when dealing with Kedushas Sheviis produce, especially for Mitzvos.

The Shemitta year might technically have ended, but this discussion proves that it’s undoubtedly worthwhile to remain proficient in Hilchos Sheviis, especially when dealing with the seemingly innocuous festive Mitzvah of Mishloach Manos.

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

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. He also currently writes a contemporary halacha column for the Ohr Somayach website titled “Insights Into Halacha”.

[2] See Mishnayos Sheviis (Ch. 8: Mishnah 2), Tosefta (Sheviis, Ch. 7: 2), Rambam (Hilchos Shemitta V’Yovel Ch. 5: 1 - 5), Rash (on Mishnayos Sheviis ibid.), Aruch Hashulchan Ha’asid (Hilchos Shemitta V’Yovel 24: 3; however he classifies this as a separate issur and not that of ‘ruining), Chazon Ish (Sheviis 10: 4), and Shu”t Minchas Yitzchok (vol. 8: 102).

[3] As delineated at length in the previous article titled ‘Kedushas Sheviis Produce’.

[4] Shemitta Basics: ‘More Mitzvah Use: Chanukah Oil.

[5] Shu”t Torah Leshmah (193; cited in Sefer Dinei Sheviis Hashalem Ch. 17: 9), Shevus Yitzchak (B’Dinei Sheviis U’Prozbol Ch. 8, pg. 76), Shu”t Shevet Halevi (vol. 7: 183), Kovetz M’bais Levi (vol. 16: pg. 49), Derech Emunah (vol. 4, Hilchos Shemitta V’Yovel Ch. 6: 10, Tziyunei Hahalacha 121), and Shu”t Mishnas Yosef (vol. 1: 27). See also Mishpetei Aretz (pg. 160) and Sefer Chag B’Chag (Purim; Ch. 13: 22). This is also the conclusion of the Rogatchover Gaon (Tzafnas Pane’ach on the Rambam, Hilchos Megillah Ch. 2: 15). Rav Mordechai Eliyahu (Shu”t Maamar Mordechai vol. 5, ‘Veshavsah Haaretz’ end 10) maintains that although it would be prohibited to use Kedushas Sheviis produce for Mishloach Manos, nevertheless if one did so, b’dieved he would have been yotzai his chiyuv, as there would have been a chalos due to the hana’ah received

[6] Avodah Zarah (62a) and Bechoros 12b; see also Mishnayos Sheviis (Ch. 8, Mishnah 3 and 4), Tosefta (Sheviis Ch. 7: 6), Rambam (Hilchos Shemitta V’Yovel Ch. 6: 1 & 10), Bartenura’s commentary on the Mishnah (ad loc.),Pe’as Hashulchan (24: 56), and Shaarei Tzedek (Ch. 17: 24).TheAruch Hashulchan (HaAsid, Hilchos Shemitta V’Yovel Ch. 25)designates an entiresiman to the many nuances of the Issur Sechorah of Peiros Sheviis. This issue was featured in previous articles Shemitta Basics: ‘Kedushas SheviisProduce’ and ‘Using Arba Minim of Sheviis’.

[7] Orchos Rabbeinu (vol. 2, pg. 334: 51).

[8] Sefer Dinei Sheviis Hashalem (Ch. 17: 9), Shalmei Todah (Purim; quoting Rav Shach; cited in Rabbi Avraham Wiesenfeld’s Shemitta in the Kitchen Q & A, pg. 57 footnote 141), Shu”t Minchas Shlomo (vol. 1, 26, pg. 165), Halichos Shlomo (Moadim vol. 1, Purim Ch. 19: 10), Shu”t Minchas Yitzchak (vol. 10: 57), Chut Shani (Shemitta, pg. 298), and Minchas Asher (Sheviis: Tinyana 47).

[9] Gemara Megillah 7a, Rambam (Hilchos Megillah Ch. 2: 15), Tur & Shulchan Aruch (Orach Chaim 695: 4) and relevant commentaries.

[10] See Ramban (Parshas Behar Ch. 25: 7), Rosh (Sheviis Ch. 9, Mishnah 8: 5), Rash (ad loc.), Minchas Chinuch (Parshas Behar, Mitzvah 329: 7), Shaarei Tzedek (19: 4), Pe’as Hashulchan (27: 3), Pnei Yehoshua (Pesachim 52b), Aruch Hashulchan HaAsid (Hilchos Shemitta V’Yovel 27: 8), Beis Ridbaz (Sheviis, Ch. 12: 7), Chazon Ish (Shemitta 11: 6 and 7), and Shemitta Kehilchasah (Ch. 3: 20). When the Zman Biur for a specific fruit arrives, the Mishnah (Sheviis, Ch. 9: Mishnah 8) teaches us that one may still keep enough of that particular fruit for three meals worth for every member of the household. However, there is another opinion, that of the Rambam (Hilchos Shemitta V’Yovel Ch. 7: 1 - 3) that Biur refers to actually destroying said produce when it is no longer available in the field. As mentioned, this is not the normative halachah and Ashkenazim certainly follow the shittah of the Rosh, Rash, and Ramban, of removing it from the house and making it hefker, as cited by the aforementioned poskim. [Interestingly, the Chochmas Adam (Shaarei Tzedek Ch. 19: 4 and 6) expresses preference to fulfilling Mitzvas Biur al yedei Sereifah, like the shittah of the Rambam.] However, whether Sefardim need be machmir for the Rambam’s shittah is a matter of dispute between contemporary Sefardic authorities, with Rav Ben Tzion Abba Shaul zt”l (Ohr L’Tzion on Sheviis, Ch. 3, Question 4) ruling to be machmir and Rav Ovadiah Yosef zt”l (cited in sefer Ma’ohr Yisrael vol. 2, pg. 105 and Yalkut Yosef on Sheviis, Ch. 21: 1, pg. 468) maintaining that making the produce hefker is sufficient.

[11] Once one properly performs Biur he may actually reacquire the fruits himself, as the halachah follows Rabbi Yosi’s opinion - see Mishnayos Sheviis (ibid.), Tosefta (Sheviis Ch. 8: 4); Yerushalmi (Sheviis Ch. 9, Halacha 4), Chazon Ish (Hilchos Sheviis 11: 6 & 26, Seder HaSheviis 1 s.v. pri), and Shu”t Minchas Shlomo (Tinyana 123: 10 and vol. 3: 132, 13).

[12] However, receiving Mishloach Manos in Chutz La’aretz containing Kedushas Sheviis produce hosts an additional set of complications, including that of taking Shemitta produce out of Eretz Yisroel. Although most poskim maintain that b’dieved one may indeed partake of them (although one should be aware that the exporters and importers probably relied upon Hetter Mechirah; which is not a simple proposition, as delineated in previous articles), this is strictly prior to the fruit’s Zman Biur. Otherwise they are assur, but still must be treated with proper Kedushas Sheviis status. This is an important issue to be aware of, and if on the receiving end of such Mishloach Manos, including the commonly gifted Purim wine, one must ascertain what to do from a knowledgeable halachic authority. These issues were dealt with at length previous articles titled Shemitta Sheilos: ‘The Case of the Contraband Carrots’ and ‘Using Arba Minim of Sheviis.

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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