Shemitta Sheilos: Using Arbah Minim of Sheviis
This author recently received several similar sounding Shemitta sheilos regarding the purchasing of the Arbah Minim 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 a large shipment of 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 if they may they buy their Arbah Minim from their usual supplier of superior Israeli ‘Schoirah.’
- 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 issues involved are actually quite complicated, and the halacha 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 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 dependent on whether their main use is for the Mitzvah on Sukkos, or for their fragrance, as in 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, lema’aseh, 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 performing ‘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 Yisrael 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 who are 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 Hachareidis, although known for their avoidance of utilizingOtzar 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 Mitzvas Arbah Minim properly on Sukkos of Motzai Sheviis.
The institution of Otzar Beis Din is based on the Tosefta, that explains that during Shemitta, Beis Din has the right to gather (hefker) 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 hefker, and as explained in previous articles, there is an ‘Issur Schoirah’ 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 usual 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. Also, it should not be ‘sold’ in the regular stores where one normally purchases such produce. Of course, since Otzar Beis Din produce contains Kedushas Sheviis it must be treated as such, with all of the nuances that entails. This also includes payment, as Kedushas Sheviis produce has Tefisas Damim - that whatever money one would use to purchase Shemitta produce also becomes imbued with Kedushas Sheviis, hence cash is not a great option.
Therefore, it seems that the best solution for the masses in Eretz Yisrael 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 divided 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 Bei s 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 zocheh to be in Eretz Yisrael for Sukkos. But for those in Chutz La’aretz, Otzar Beis Din presents a plethora of problems; a downright cornucopia of complications. You see, as mentioned previously, Otzar Beis Din produce maintains Kedushas Sheviis status. As such, it may not be taken to Chutz La’aretz or sold in a normal manner. How then, can a seller export boxes of such Esrogim to Chutz La’aretz and have them sold commercially as he would in a regular year? And if he would not go through an Otzar Beis Din, the problems of Shamor V’Ne’eved (terms used to describe produce grown during Shemitta from working the land as usual or cultivated via forbidden labors or guarded produce without allowance for public access for the halachically hefker fruit; in direct transgression of the Mitzvah ofShemitta) would also apply. How can an exporter or importer violate several main tenets of the halachos of Sheviis?
Although there are potential solutions according to several shittos, on the other hand, according to the majority consensus, the questions are far better than any possible answer, and all commercial exporting of Esrogim from Eretz Yisrael is effectively proscribed.
This is why I advised the importer that this year it is preferable if he imports his Esrogim for the masses from Chutz La’aretz itself and not to get entangled in this complicated Shemitta sheilah.
However, it is important to note that the above response is only for an exporter, importer, and / or the seller. On the other hand, it turns out that according to most poskim, the same would not hold true for the buyer. This is due to the fact that according to most authorities, the possible proscriptions associated with bringing Kedushas Sheviis produce to Chutz La’aretz [taking Shemitta produce to Chutz La’aretz, Shamor V’Ne’evad, etc.] are the issue of the seller, not the buyer, and do not prohibit actual consumption of the fruit. Consequently, according to the Chazon Ish and Rav Moshe Feinstein, once the Esrogim are already in Chutz La’aretz, they are permitted for purchase [via ‘havla’ah’, check, or by credit to ensure that there is no issue of Schoirah or Tefisas Damim].
To paraphrase the words of Rav Boruch Moskowitz, talmid muvhak of Rav Dovid Feinstein, explaining Rav Moshe Feinstein’s famous responsum on topic: ‘One may now fulfill their Sukkos obligation with these Shemitta Esrogim lechatchillah, even though their arrival to Chutz La’aretz may have only been b’dieved’. In fact, Rav Moshe himself, in a later teshuvah, wrote that if one in Chutz La’aretz is accustomed to purchasing Esrogim specifically from Eretz Yisrael due to their superior quality (less fear that it is from grafted stock; ‘chezkas bilti murkav’), then it would be preferable to continue to do so in the Shemitta year as well, even with all of the issues relating to these Shemitta Esrogim (he preferred using the ‘havla’ah’ method to acquire them). However, it is important to note that in any case, they must still be treated as befits Kedushas Sheviis produce.
As for the third question, whether bochurim returning home to Chutz La’aretz for Sukkos are permitted to take along a mehudar Esrog for themselves and perhaps for family members, it seems that it would be permitted in limited quantities and under specific circumstances. Interestingly, this inyan is based on a story.
The Gemara (Pesachim 52b) relates that Rav Safra traveled to Chutz La’aretz taking along Kedushas Sheviis produce. Tosafos (ad loc. s.v. Rav Safra) asks how he could have done so, as the Mishnah (Sheviis Ch. 6, Mishnah 5) explicitly prohibited such actions. Tosafos offers two potential solutions: 1) Rav Safra did so for Schoirah, merchandise, which would be permitted 2) he did so b’shogeg, accidentally.
Many authorities are troubled by the first answer, as the Mishnah (Sheviis Ch. 8, Mishnah 3 and 4; see also Gemara Avodah Zarah 62a) also prohibits selling Kedushas Sheviis produce commercially. How then can Tosafos propose such a solution?
One way of understanding, cited by the Pe’as Hashulchan and Chochmas Adam is that Tosafos meant ‘ledavar mu’at, only a small quantity’ of merchandise, which is why it was permitted, as opposed to commercial sales. Others simply maintain that the halacha follows the second answer that it was b’shogeg; otherwise, such actions would clearly be prohibited.
However, the Chazon Ish amends Tosafos’ girsa (text) to read ‘achilah’, and not Schoirah. Therefore, he maintains that certainly commercial merchandising is assur; however, accordingly, Tosafos is averring that a small amount of Shemitta produce to eat, would be essentially permitted to be taken along when leaving Eretz Yisrael.Sefer Mishpetei Aretz records that both Rav Yosef Shalom Elyashiv and Rav Shmuel Halevi Wosner followed the Chazon Ish’s amended girsa in Tosafos to allow a small quantity of Kedushas Sheviis produce (‘tzeidah laderech’) to be taken out of Eretz Yisrael b’shaas hadchak. Come what may, we see that commercial exporting and selling would not be allowed.
On the other hand, we also see that small quantities of Kedushas Sheviis produce for personal use might be permitted to be taken out from Eretz Yisrael under extenuating circumstances. In fact, the Chazon Ish later made an addendum elucidating this rule: that Makom Mitzvah (or more accurately, fear that one will not properly fulfill the Mitzvah otherwise) is considered enough of a reason to allow this dispensation as well.
Accordingly, if one in Chutz La’aretz specifically usually uses an Eretz Yisrael Esrog for Sukkos, due to its hiddur and better pedigree (less fear that it is from grafted stock; ‘chezkas bilti murkav’), then he may appoint someone as his shliach to bring (or send) him such an Esrog this year from Eretz Yisrael as well, exclusively in small quantities and for private, non-commercial use.
However, for those utilizing his hetter, it is known that the Chazon Ish himself mandated cooking and eating the Shemitta Esrog immediately after Yom Tov, while others maintain that instead, it must be returned to Eretz Yisrael after its Sukkos use. In any case, at least there is a possible solution for our bochur’s Esrog predicament.
However, all things being equal, in this author’s estimation, practically speaking, this year, with the many obtainable Esrog options in much of Chutz La’aretz, including the wide range of Esrogim available from California, Morocco, and Calabria (Yanover), certainly in a standard case, their purchase would seem a safer bet than relying on Israeli Esrogim which most likely have been imported under non-halachically optimal conditions.
Yet, of at least equal importance, it is woth noting that we have seen three similar sounding Shemitta Sheilos, yet three very different answers. This should give us the impetus, and perhaps demonstrate why it is advisable for all of us, even those in Chutz La’aretz, and even in the eight year (Sheminis), to be proficient in Hilchos Sheviis. Certainly a worthwhile investment.
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, and how to be noheg, with / for his Arbah Minim.
For any questions, comments or for the full Mareh Mekomos / sources, please email the author: firstname.lastname@example.org.
Rabbi Yehuda Spitz serves as the Shoel U’Meishiv and Rosh Chabura of the Ohr Lagolah Halacha Kollel at Yeshivas Ohr Somoyach in Yerushalayim.
His recent English halacha sefer, “Insights Into Halacha - Food: A Halachic Analysis,” (Mosaica/Feldheim) contains more than 500 pages and features over 30 comprehensive chapters, discussing a myriad of halachic issues relating to food. It is now available online and in bookstores everywhere.
Although there is a machlokes in Gemara Rosh Hashanah 14b whether an Esrog is akin to a fruit or a vegetable vis a vis its Kedushas Sheviis status, and therefore whether it follows one-third of its growth or from when it was picked, this would be a moot point on Sheminis, the eighth year, as at that time, by any definition the Esrog used would be considered Shemitta produce.
The first to address this sheilah (albeit indirectly) regarding Hadassim was the Maharil Diskin in a teshuvah referenced in Shu”t Tzitz HaKodesh (vol. 1: 15, 1), who mentions that it is preferable to purchase the Esrog via havla’ah (as will be explained further on) on the Hadassim (and not the Lulav; counter-indicative of the Gemara Sukkah 39a), implying that he held Hadassim do not contain Kedushas Sheviis. Rav Yechiel Michel Tukachinsky (Sefer HaShemitta Ch. 7, footnote 14) understands his ruling as since they are planted expressly for its Mitzvah on Sukkos, that is considered its main use and they therefore do not contain any inherent Kedushas Sheviis. However, it is known that the Chazon Ish and Steipler Gaon (Orchos Rabbeinu, 5775 edition vol. 3, pg. 270-271, 41-43 and Derech Emunah vol. 4, Hilchos Shemitta V’Yovel Ch. 7, Tziyun Hahalacha 222) were personally machmir and treated Hadassim that grew during Shemitta as Kedushas Sheviis due to their fragrance [see Yerushalmi Sheviis (Ch. 7, Halacha 1; ‘iba’ui delo ifsheta’) and Chazon Ish (Sheviis 14: 9; who was therefore machmir)]. See also Shu”t Videbarta Bam (vol. 1: 176, 2 s.v. v’shama’ati), quoting Rav Dovid Feinstein citing his father, Rav Moshe’s personal hanhagah; that although not wishing to give a ruling, nevertheless, he himself was also personally machmir regarding Hadassim ofSheviis. Rav Yosef Shalom Elyashiv (cited in Shu”t Yissa Yosef vol. 5: 110, regarding Hadassim grown in a Jew’s field; he held that the Maharil Diskin’s psak was only referring to Hadassim grown in a non-Jew’s field) and Rav Mordechai Eliyahu (Darchei Halacha glosses to the Kitzur Shulchan Aruch, Kitzur Dinei Shemittas Karka’os 20, pg. 645) were machmir as well. On the other hand, most contemporary authorities follow the Maharil Diskin’s psak and maintain that one may indeed be meikil regarding purchasing Hadassim. See Shemitta Kehilchasah (Ch. 2: 12 s.v. Hadassim), Shu”t Mishnas Yosef (vol. 3: 8, pg. 75), Shu”t Tzitz Eliezer (vol. 6: 33 and vol. 11: 69), Shu”t Minchas Yitzchok (vol. 6: 130, 3), Shu”t Minchas Shlomo (Kamma vol. 1: 51, 23 s.v. lefi aniyus daati), Shu”t Shevet Halevi (vol. 1: end 181 s.v. uvmah shekasav), Minchas Asher (Sheviis, Tinyana 14: 2), Yalkut Yosef (Sheviis, Ch. 20, pg. 443), Mishpetei Aretz (Sheviis, Ch. 14: 10), Halichos Shlomo (Moadim vol. 1, Ch. 10: 26), and the Badatz Eidah Hachareidis’ Dvar HaShemitta (5775, pg. 53: 9).
Peirush Mishnayos L’Rambam (Sukkah Ch. 3, Mishnah 11) and Rambam (Hilchos Shemitta V’Yovel Ch. 8: 11).
Although the Mahari Korkos, in his commentary on the Rambam (ad loc.), to answer up this seeming dilemma, understands the Rambam in his Mishnah Torah as referring to a ‘Shishis Lulav’ used in the beginning of Shemitta and therefore backtracking from what he wrote in his Peirush Mishnayos that a Lulav is an ‘Eitz B’alma’ and not containing Kedushas Sheviis, nonetheless, most authorities, including the Radbaz (ad loc.), understand that the Rambam was referring to a ‘Sheviis Lulav’ in concordance with his shittah in his Peirush Mishnayos. Others who question the Rambam’s ruling against a seeming explicit Gemara include R’ Akiva Eiger (Tosafos R’ Akiva Eiger on the Mishnah ad loc.) and the Tiferes Yisrael (ad loc. 66). The Kapos Temarim (Sukkah 40a) opines that the Gemara later mentions that ‘stam eitzim lehasakah kayma’, and therefore perhaps means that although a Lulav should contain Kedushas Sheviis, nonetheless, lema’aseh a Lulav is battel legabei ‘shaar eitzim’, and therefore actually does not. The Chasam Sofer (Sukkah 39a s.v. Sheviis), Aruch LaNer (Sukkah 40a s.v. amai), and Rav Yosef Shalom Elyashiv (Ha’aros Rabbeinu HaGri”sh, Sukkah 40a s.v. stam) follow this approach as well. The Ohr Somayach (Hilchos Parah Ch. 11: 7 and Hilchos Lulav Ch. 8: 2 and 5) offers an alternate approach, that the Rambam is ruling leshitaso by the Eizov for Parah Adumah, that if one uses it for a Mitzvah, it is as if it was picked for ‘Eitzim’ and not ‘Le’achilah’ [which in order to be considered Shemitta produce it needs to be considered ‘Lachem - L’achlah’, as mentioned in previous articles ‘Kedushas SheviisProduce’ and ‘Fruit Use and Fruit Juice]. A third solution, raised by the Minchas Yitzchok (Shu”t vol. 8: 100 s.v. v’hinei; see also vol. 6: 61), is that the Rambam was ruling like the Yerushalmi over the Bavli, as the Yerushalmi (Sukkah Ch. 3, end Halacha 10) only cites the original Mishnah that implies a Lulav has no Kedushas Sheviis, with no comment or qualification, implying that it is correct. He notes that the Mahari Cologne (a late Rishon) wrote many centuries ago (Shu”t Maharik, shoresh kuf) that the Rambam has a predilection for paskening like the Yerushalmi over other sources. An alternate approach is given by Rav Boruch Dov Povarski, Rosh Yeshivas Ponovezh, and author of Bo”d Kodesh, in a ma’amar in Kovetz Moriah (Elul 5775; issue 400-402). Come what may, it seems that most authorities still follow the Rambam’s shittah on this; see next footnote.
As mentioned previously, the Yerushalmi (Sukkah Ch. 3, end Halacha 10) only cites the original Mishnah that implies a Lulav has no Kedushas Sheviis, with no comment or qualification, implying that it is correct. The Rif (Sukkah 19b) and Rosh (Ch. 3: 28) do so as well. The Ran (ad loc. end s.v. lefi) cites two approaches - one that the Mishnah was referring to a ‘Shishis Lulav’ (implying a ‘Sheviis Lulav’ would have Kedushas Sheviis), and alternatively, that a ‘Lulav’ is considered an ‘Eitz’ and therefore does not contain Kedushas Sheviis. Although several Rishonim seem to follow the first approach, including Rashi (Sukkah 40a s.v. yatzu), Tosafos (ad loc. s.v. v’eitzim and Bava Kamma 102a s.v. h”g; who adds the sevara that a Lulav is commonly used to sweep the house), the Baal HaMaor (Sukkah ad loc.), Rabbeinu Chananel (Sukkah ad loc.), and Shitas Rivav (Sukkah ad loc.), on the other hand, most authorities, including the Bartenura (ad loc.), Radbaz (on Rambam ad loc.), Tosafos Ri”d (Sukkah ad loc.), and Rabbeinu Gershom (Bechoros 31b), consider a Lulav not to contain Kedushas Sheviis. [See also Pnei Yehoshua (Sukkah 39a - b s.v. B’Tosafos and B’Gemara), who gives an interesting solution as to why Rashi and other Rishonim only cite the first approach, and explains why it is not at odds with the alternate approach]. Although, as mentioned previously, the Maharil Diskin (ibid.) did not want to allow ‘havla’ah’ with a Lulav, implying that he was choshesh it contained ‘Kedushas Sheviis’, nevertheless, several contemporary authorities, including Rav Shlomo Zalman Auerbach (Shu”t Minchas Shlomo, Kama vol. 1, 51: 23), the Mishnas Yosef (Shu”t vol. 1: 25-30), and Rav Chaim Kanievsky (Derech Emunah vol. 4, Hilchos Shemitta V’Yovel Ch. 8: 86), additionally point out that nowadays a Lulav really has no other use than the Sukkos Mitzvah, as it is no longer common to use it to sweep a floor [see similar hetter in Chazon Ish (Sheviis, 14: end 10)]. Therefore, they aver that it does not have Kedushas Sheviis. In fact, Rav Shmuel Halevi Wosner (Shu”t Shevet Halevi vol. 1: 181) noted that when he discussed the Shemitta status of Hadassim with the Chazon Ish, it seemed that it was pashut that he held that Lulavim do not contain any inherent Kedushas Sheviis. [The Chazon Ish himself also implied this way in his Chazon Ish (Sheviis 14: 1)]. He concludes that ‘kedai haim Mosdei Olam shekasvu divreihem derech psak lismoch aleihem b’Shemitta bezman hazeh’. See also Chaim U’Brachah (os shin, 308 s.v. b’Lulav), Aruch Hashulchan Ha’Asid (Hilchos Shemitta V’Yovel 26: 8), Shu”t Tzitz HaKodesh (vol. 1: 15, 2), Sefer HaShemitta (Ch. 8: 3, 2), Shu”t Igros Moshe (Orach Chaim vol. 5: 42), Shu”t Minchas Yitzchok (vol. 6: 61 and vol. 8: 100), Minchas Asher (Sheviis, Tinyana 14: 1), Yalkut Yosef (Sheviis, Ch. 20: 1 and 12), Rav Yehoshua Noivert (Neuwirth)’s Kitzur Dinei Shemittas Karka’os (57), Mishpetei Aretz (Sheviis, Ch. 14: 11), Mishmeres HaSheviis (Ch. 22: 14), Peiros Sheviis (Ch. 22: 54), Shu”t Videbarta Bam (vol. 1: 176, 1 s.v. v’shama’ati; quoting Rav Dovid Feinstein citing his father, Rav Moshe’s personal hanhagah), Halichos Shlomo (Moadim vol. 1, Ch. 10: 26), and the Badatz Eidah Hachareidis’ Dvar HaShemitta (5775, pg. 53: 8), who rule similarly. However, although the Chazon Ish was indeed notteh that a Lulav does not contain Kedushas Sheviis, on the other hand it is recorded (Orchos Rabbeinu vol. 2, pg. 326; 5775 edition vol. 3, pg. 267, 29-31 and Derech Emunah ibid. Biur Hahalacha s.v. haloke’ach and Tziyun Hahalacha 117) that both he and his brother-in-law, the Steipler Gaon, were personally machmir that it does.
For how ‘havla’ah’ works see Rashi (Sukkah 39a s.v. mavlia), Rash (Sheviis Ch. 7: Mishnah 3), Rambam (Hilchos Shemitta V’Yovel Ch. 8: 11), Sfas Emes (Sukkah 39a), Sefer HaShemitta (Ch. 8: 3, 2), and Chazon Ish (Sheviis 13: end 20).
See Shu”t Tzitz HaKodesh (vol. 1: 15, 3, s.v. v’yatza), Shemitta Kehilchasah (Ch. 4: 4), and Sefer Dinei Sheviis Hashalem (Ch. 18: 3 s.v. yesh). Rav Yosef Shalom Elyashiv (Ha’aros Rabbeinu HaGri”sh, Sukkah 39a s.v. mavlia) is also medayek this way from Rashi’s shittah. An additional concern is that some authorities, including the Chazon Ish (see Derech Emunah ibid. 88 and Shemitta Kehilchasah ibid.) and Rav Shlomo Zalman Auerbach (Minchas Shlomo on Sheviis, Ch. 7, Mishnah 3 and Halichos Shlomo, Moadim vol. 1, Ch. 10: 29), are of the opinion that ‘havla’ah’, even if performed properly, only solves the issue of ‘D’mei Sheviis’ and not of ‘Issur Schoirah’ with Kedushas Sheviis produce, and is therefore not a practical solution. For an opposing view, see Beis Ridbaz commentary on Pe’as Hashulchan (5: 18; at great length), who does not agree with the latter assessment. See alsoShu”t Igros Moshe (Orach Chaim vol. 5: 42) and Shu”t Videbarta Bam (vol. 1: 176, 3); Rav Moshe Feinstein held that properly performed ‘havla’ah’ would also solve the issue of ‘Issur Schoirah’.
Including issues of ‘Shamor V’Ne’evad’, ‘Schoirah B’Peiros Sheviis’, ‘Mesiras Demei Sheviis L’Am Ha’aretz’ and ‘Tefisas Demei Sheviis’. Many of these issues have been detailed at length in previous articles. Sefer Dinei Sheviis Hashalem (Ch. 26: 5) sums it up simply, ‘harotzeh lekabel Esrog shelo al yedei Otzar Beis Din, ya’aseh sheilas Chacham, meshoom shedavar zeh karuch b’sheilos rabbos.’
See the Badatz’s Dvar HaShemitta (5775, pg. 30-31 and 50), citing Rabbanei Yerushalayim of over 100 years ago, that they never accepted ‘Otzar Beis Din’ as a practical means of allowing distribution of Kedushas Sheviis produce, as the system regrettably can lend itself to abuse by unscrupulous individuals, especially if it is not run properly. They cite examples of ‘Otzar Beis Din’ produce somehow finding its way into supermarkets and being sold in the normal manner, quite counter-indicative of its halachic Kedushas Sheviis status. Unfortunately not an uncommon occurrence, this author has seen Otzar Beis Din produce being sold in regular stores (ostensibly with reliable hechsherim) this past Shemitta year by weight and price. The Star-K’s Kashrus Kurrents article titled ‘Shemitta 5775’ refers to a great deal of wine produced under the auspices of Otzar Beis Din that ended up in supermarkets… in the Unites States. See also Minchas Asher (Sheviis, Tinyana 48b) who cites another example of Esrog merchants abusing the Otzar Beis Din system by reserving top quality Esrogim for ‘Admorim and Mechubadim’. Similarly, Orchos Rabbeinu (new print vol. 3, pg. 260-261: 3-4) relates that certain years the Steipler Gaon would not rely on an Otzar Beis Din for Esrogim, as he held that they (perhaps those specific ones) were improperly run, and charging too high of a price to only include actual expenses. Unfortunately, abusing the Hetter of Otzar Beis Din seems to be the norm nowadays (or at least ‘a norm’), to this author’s great consternation. Other contemporary poskim who were wary of ‘Otzar Beis Din’ include Rav Moshe Sternbuch (Shemitta Kehilchasah Ch. 3: 16, Moadim U’Zmanim vol. 8, Lekutei Ha’aros to vol. 6: 54, and Teshuvos V’Hanhagos on Sukkos pg. 345 and pg. 357 - 358), Rav Mordechai Eliyahu (Shu”t Maamar Mordechai vol. 5, V’shavsah Haaretz, 11; he additionally notes that the Rambam did not cite such a provisio) [Others however, ‘answer up’ that ‘Otzar Beis Din’ is an ‘eitzah’, not a chiyuv, and that is why the Rambam did not need to mention it.], and the Karlsberg Rav, Rav Yechezkel Roth (Shu”t Emek Hateshuvah vol. 2: 1). See also Rav Yirmiyohu Kaganoff’s excellent recent article titled ‘Otzar Beis Din or Hetter Otzar Beis Din?’. On the other hand, see footnote 12.
Tosefta (Sheviis Ch. 8; 1-3), and is mentioned by several Rishonim, including the Ramban in Parshas Behar (Vayikra Ch. 25: 7), the Rash and Rosh in their commentaries to Mishnayos Sheviis (Ch. 9 Mishnah 8), and the Raavad (Hilchos Shemitta V’Yovel Ch. 7: 3). Interestingly, there is a minority view, that of the Rash M’Sirilio (Sheviis end Ch. 9 s.v. v’ani omer) who understands the Tosefta in a completely different manner, that it was not referring to setting up an Otzar Beis Din. Although the Yerushalmi (Pe’ah Ch. 2: Halacha 4; cited by the Rashbam in Bava Basra 130b, end s.v. ad sheyomru) writes that we do not pasken from Haggados or Toseftos, many poskim, including the Shach (Choshen Mishpat 81: 56), explain that this generality only proves true when it contradicts an explicit Gemara (see, for example, the commentaries of the Rashbam to Bava Basra 63 a s.v. tanu and Rosh to Chullin Ch. 2: 6, for cases of this); otherwise, we can and do pasken from the Tosefta. Although some argue regarding Aggadata, everyone agrees regarding the Tosefta, which, as the Noda B’Yehuda famously explained (Shu”t Mahadura Tinyana, Yoreh Deah 161 s.v. umah sheratzah) are “ikarah lehalachos, u’lazeh hayah techillas kavvanas mechabram, v’R’ Chiya v’R’ Oshia heimah yisduah, vechol migmasam l’dinei Torah, u’lchein b’makom she’ein strirah b’divrei HaGemara somchim al HaTosefta.” See also Shu”t HaRashba (335), Shu”t Ba’er Yaakov (Even Ha’ezer 119), the Chida’s Machzik Bracha (Orach Chaim, Kuntress Acharon 51, quoting Rabbeinu Tam’s Sefer Hayashar), Shu”t Maharsham (vol. 1: 163 s.v. hinei), Sdei Chemed (Maareches Alef, Klal 95 - 96, and Pe’as Hasadeh,Klal 39), Shu”t Emek Hateshuvah (vol. 2: 1 s.v. v’ode), and Shu”t Mishnah Halachos (vol. 9: 319 s.v. vhanirah lefi naiyus daatid and u’mah shekasav).
See Chazon Ish (Sheviis 11: 7 and 12: 6 and 8) and Kovetz Igros Chazon Ish (vol. 2: 73). Orchos Rabbeinu (old print vol. 2; new print vol. 3) dedicates an entire chapter (titled ‘Otzar Beis Din’) describing how the Chazon Ish attempted to set up properly run Otzar Batei Dinim across Eretz Yisrael every Shemitta. Mishpetei Aretz (Sheviis ppg. 230-232) prints the Chazon Ish’s actual instructions to storekeepers and suppliers on how to properly set up and distribute Otzar Beis Din produce. See also Shu”t Mishnah Halachos (vol. 9: 319) as well as the ‘Michtavim’ printed in the back of Chut Shani on Hilchos Yom Tov v’Chol Hamoed (pg. 371-372) from Rav Yosef Shalom Elyashiv and Rav Nissim Karelitz on the importance of establishing Otzar Batei Din. See also footnote 15.
As detailed at length in previous articles, ‘Kedushas SheviisProduce’, ‘Fruit Use and Fruit Juice’, ‘More Mitzvah Use’, ‘The Case of the Contraband Carrots’, and ‘The Perplexing Puzzle of the Possibly Purloined Peppers’.
As explained in recent articles (see previous footnote). Tefisas Damim refers to the fact that whatever money one would use to purchase Shemitta produce also becomes imbued with Kedushas Sheviis. This is because the Kedushah transfers to whatever item the hly produce is exchanged for, and even any further exchanges, no matter how many times it is transferred. For example, if someone purchases Shemitta produce (even if it was sold in a permitted manner), although the fruit still maintains its ‘holy’ status, the money that was used to purchase it now contains Kedushas Sheviis as well. If one now uses that money to buy fish, the money is no longer considered ‘holy’ but the fish now is. If the fish is exchanged for oil, the fish has lost its Kedushas Sheviis status, but the oil has gained it. This cycle continues ad infinitum, and Biur must be done on the last item on the chain, along with the original fruit. SeeMishnayosSheviis (Ch. 8, Mishnah 7) and Rambam (Hilchos Shemitta V’Yovel Ch. 6: 1, 6, and 7).
For more on the nuances of Otzar Beis Din and its relevant halachos and how they are properly applied, see the ‘Kuntress Otzar Beis Din’ in Chut Shani on Shemitta, Derech Emunah (vol. 4, Hilchos Shemitta V’Yovel Ch. 6: 19), Orchos Rabbeinu (old print vol. 2; new print vol. 3 - Ch. ‘Otzar Beis Din’), Shemitta Kehilchasah (Ch. 3: 16), Mishpetei Aretz (Sheviis Ch. 13), Dinei Sheviis Hashalem (Ch. 20), Yalkut Yosef (Sheviis Ch. 18, ‘Otzar Beis Din’), Shu”t Minchas Shlomo (Tinyana 123: 11), Shu”t Mishnah Halachos (vol. 9: 319), Minchas Shlomo (Sheviis Ch. 9: 8, pg. 250), Rav Tzvi Cohen’s ‘Shemitta’ (Ch. 23), and Kara Shemitta (Ch. 9: 6, ‘Otzar Beis Din’; he also details the first Otzar Beis Din set up in modern times - in 1910, for the Rechovot vineyards of Rav Tzvi Hirsch Kahn, author of Imrei Tzvi, by the Badatz of Yerushalayim, consisting of such luminaries as Rav Yosef Chaim Zonnenfeld, Rav Chaim Berlin, and Rav Tzvi Pesach Frank.).
See Moadim U’Zmanim (vol. 6: 54; also citing Rav Yisrael Veltz, author of Shu”t Divrei Yisrael) as to why selling Shemitta Esrogim via Otzar Beis Din in closed box sets is not considered an ‘asmachta’, and is still the preferred method.
See Chut Shani (Shemitta, Kuntress Otzar Beis Din) as well as Shulchan Shlomo (Sheviis, Kuntress Otzar Beis Din), citing Rav Shlomo Zalman Auerbach. The Badatz Eidah Hachareidis allows this as well. However, Rav Yosef Shalom Elyashiv (Mishnas HaGri”sh, Peiros Sheviis, Ch. 5:16 and Mishmeres HaSheviis, Kuntress Otzar Beis Din L’Esrogim) held that it is preferable that the Otzar Beis Din Esrogim not be sold by different prices as to level of Hiddur, hence the preference for purchasing closed boxes.
The Chazon Ish writes (Kovetz Igros Chazon Ish vol. 2: 72) that it must be ‘Nikkar’ that the price of Otzar Beis Din Esrogim is significantly less than they would be in a regular year. This psak is echoed by Rav Yosef Shalom Elyashiv (Mishnas HaGri”sh, Peiros Sheviis Ch. 5:7) as well as the Badatz Eidah Hachareidis (Dvar HaShemitta ibid. and sefer Minchas Yerushalayim, Mevo to Ch. 9) – that the ‘Chaluka’ price has to be noticable to all that it is exculsively going to cover costs, with no profit being made. However, there is a difference of opinion as to which Esrog expenses may be covered by price charged to consumers. The Chazon Ish himself was mesupak if the Esrog’s growing expenses etc. can be passed off to customers or only its plucking, packaging, and shipping. Practically, from the language of an Otzar Beis Din he set up, we discern that practically, the Chazon Ish ultimately ruled leniently that all of the Esrog’s expenses can be passed off to customers (Derech Emunah ibid. Ch. 6:20). This is also how Rav Elyashiv (Mishnas HaGri”sh ibid. Teshuvos 4) and Rav Nissim Karelitz (Chut Shani ibid.) ruled as well. On the other hand, Rav Shlomo Zalman Auerbach (Shulchan Shlomo ibid.; yet, see also Shu”t Minchas Shlomo, Tinyana 123:11) and the Badatz Eidah Hachareidis (Minchas Yerushalayim ibid.) pasken that only the Esrog’s latter expenses can actually be charged. Hence, is is understandable how Rav Nissim Karelitz’s Otzar Beis Din Esrogim may be sold at a higher price than the Badatz’s. [See Rav Moshe Edelstein’s “Anveihu” Kovetz Hilchos Arbaas Haminim B’Shemitta, 57-60.] Yet, this author is at a loss to explain the (unfortunately) seemingly common phenomenon in 5783/2022 of Otzar Beis Din Esrogim actually costing more than Esrogim of the same level of Hiddur do in a regular year.
1) The Tzitz HaKodesh (Shu”t vol. 1: 15) cites a teshuvah from the Maharil Diskin that one may send Esrogim that are grown in a non-Jew’s field to Chutz La’aretz by an interesting combination - ‘havla’ah’ with a hadass (leshitaso - as opposed to a Lulav; as explained in footnote 2) and to make a ‘tanei mefurash’ with the non-Jews not to relinquish ownership of the Esrogim until they are already in Chutz La’aretz (meaning it is as if the non-Jew took it from Eretz Yisrael and exported it) and only then officially purchase it. However, nowadays, with the vast majority of Esrog pardessim in Eretz Yisrael under Jewish ownership, it would be hard pressed to accomplish this and therefore it does not prove to be a practical or viable option. 2) The Tzitz HaKodesh additionally posits (ad loc 4 s.v. u’l’inyan) that perhaps the prohibition does not apply to produce that is not usually eaten, i.e. Esrogim; however, he himself does not give this severa much credence lemaaseh. 3) An alternate, but novel approach is given by the Ridbaz (Beis Ridbaz glosses and commentary to the Pe’as Hashulchan Ch. 5: 18), who maintains that Chazal were never gozer against sending Kedushas Sheviis produce to Chutz La’aretz in certain situations. However, he also is of the opinion that the reason for the gezeirah is to allow people in Eretz Yisrael to have enough food to eat. Nowadays, he posits, with every country importing and exporting, that is no longer a concern. Additionally, he maintains that an Esrog is different than other peiros Sheviis and thereby has no Zman Biur, as it is always available to animals in the field. [He also follows the opinions of several Rishonim, including the Bartenura and the mashma’os of the Rash (in their commentaries to Mishnayos Sheviis, Ch. 6: Mishnah 5), who hold that the reason for the prohibition to takeKedushas Sheviis produce out of Eretz Yisrael is due to the chashash that it will miss the Zman Biur, which should be done in Eretz Yisrael. Leshitaso, the Esrog is technically exempt from this issue. However, most authorities[see for example,Aruch Hashulchan Ha’asid (Hilchos Shemitta V’Yovel 24: 25) and Shu”t Tzitz HaKodesh (vol. 1: 15, 4 s.v. ul’inyan)] follow the other approach, that of the Raavad, Rash MiShantz, and Gr”a (in their respective commentaries on the Sifra / Toras Kohanim, Behar, Parshah 1: 9) and the mashma’os of the Rambam (Hilchos Shemitta V’Yovel Ch. 4: 13; who makes no mention of the prohibition being associated with Biur), that the prohibition is not dependant on Zman Biur, but rather that many in Chutz La’aretz will not properly follow the myriad halachos of Shemitta produce, and therefore the proscription is fully in effect with all Kedushas Sheviis produce.] Therefore, in his opinion, since it is preferable to perform a Mitzvah with Shemitta produce, one may send Esrogim to Chutz La’aretz via ‘havla’ah’. According to this understanding, it seems that an Otzar Beis Din may send Esrogim for commercial selling in Chutz La’aretz, as there is no Zman Biur on fruit stored with an Otzar Beis Din. In fact, Rav Menashe Klein (Shu”t Mishnah Halachos vol. 12: 247 s.v. lefi aniyus daati) seemingly follows this approach, maintaining that one may use an Otzar Beis Din Esrog in Chutz La’aretz as they are ‘bli shum chashash upikpuk’ implying that even their being sent there from the Otzar Beis Din is lechatchillah. This was also known to be the opinion of Rav Pinchas Epstein (cited in several sefarim; his actual letter dated 29 Elul 5727 was recently republished in Kovetz Tzohar, vol. ‘Ohel Chanoch’, Tamuz 5761 pg. 530), based on the Ridbaz’s shittah. However, it is important to note that this is a novel approach and most authorities did not accept it [see, for example Kuntress Mishmeres Lehabayis (printed at the end of the Beis Ridbaz version of Pe’as Hashulchan ppg. 22a–23b; with published letters from the Chazon Nochum, Rav Nochum Weidenfeld and the Machazeh Avrohom, Rav Avrohom Menachem Halevi Steinberg, Av Beis Din of Brody - who only permitted ‘b’hefsed merubah v’shaas hadchak gadol’ and if otherwise the fruits would all rot in the field; however, in a later responsa, Shu”t Machazeh Avrohom vol. 1: 146, end s.v. amnam, he later retracts and states simply ‘kasheh lehakel b’shel Yisrael’), Shu”t Meishiv Davar (vol. 1: 50 pg. 117 s.v. al dvar mischar), Toras HaShemitta (pg. 28, note 33 and 34), Chazon Ish (Sheviis 13: 4 s.v. Pesachim and 15: 3), Minchas Shlomo (Sheviis, Ch. 6: 5), Shu”t Emek Hateshuvah (vol. 2: 1), Chut Shani (Shemitta Ch. 5, pg. 248 - 249), and Minchas Asher (Sheviis, Tinyana 14: 4; see however his recent Kuntress Minchas Asher on Dinei Dalet Minim B’Motza’ei Sheviis 2: 3, where Rav Weiss is melamed zechus by combining several sevaros, including the aforementioned Rash, along with the fact that nowadays people generally do not actually eat Esrogim, and their prime use is exclusively for the Mitzva, hence perhaps we do not need to worry about Zman Biur of Esrogim); all of whom maintain that the Esrog has a Zman Biur. See next footnote, as well as footnotes 28 and 29; many contemporary sefarim do not even cite this hetter]. 4) Another novel approach is given by the Maharsham (Mishpat Shalom, Kuntress Mishmeres Shalom 231: 4; thanks are due to Dr. Steven Oppenheimer for providing this important source) and Rav Chaim Berlin (cited by the Ridbaz in his Beis Ridbaz commentary to the Pe’as Hashulchan on Sheviis Ch. 5: end 18, pg. 72b s.v. shlama and pg. 73b s.v. umah; also cited by Rav Pinchas Epstein in his letter and in Peiros Sheviis pg. 424, footnote 77 and Kara Shemitta pg. 100-101), who opine that it is conceivable that what the masses are being somech on upon sending Esrogei Eretz Yisrael to Chutz La’aretz is possibly that if they are grown exclusively for mass export, perhaps they do not contain Kedushas Sheviis. This seems to be the Maharsham’s understanding of Tosafos in Pesachim’s (52b s.v. Rav Safra) first teirutz, which implies that there is a hetter for Schoirah in Chutz La’aretz. [This will be addressed later in the article at length.] However, the fact that this rationale is not mentioned by any other authority and does not seem to fit with the basic Shemitta guidelines, makes this chiddush not simple to rely upon lemaaseh. Indeed, the Ridbaz (ibid.) concludes that he ‘does not know of a single source to allow such a dispensation.’ 5) Another novel rationale for permitting commercially sending Shemitta Esrogim to Chutz Laaretz is put forth by Rav Yitzchok Yaakov Wachtfogel (cited in Shu”t Degel Reuven vol. 2: 31; quoted in Rav Elyakum Devorkes’ Nesivei HaMinhagim, Chag HaSukkos pg. 186), Rav Shlomo Zalman Bahran (cited in Shu”t Avnei Kodesh end 2), and the Ridbaz (Kuntress Mishmeres Lehabayis ibid.pg. 22), is that nowadays since most Esrogim are cultivated and grown for the Mitzvah and not for achilah, they would not contain Kedushas Sheviis. On the other hand, as pointed out in Shu”t Machazeh Avrohom (vol. 1: 146 s.v. v’ode), Shu”t Degel Reuven (ibid.), and Shu”t Mishnas Yosef (vol. 2: 24 - 29), this reasoning seems quite tenuous, as the Esrog has to be ‘raui la’achilah’ to be able to make a brachah on it (see Gemara Sukkah 35a-b). Additionally, as mentioned previously, the Mishnah and Gemara already stated that an Esrog has Kedushas Sheviis. It would therefore seem difficult to rely on this sevara at all. 6) A sixth, but quite controversial method of exporting Esrogim, is via relying on ‘Hetter Mechira,’ which circumvents Shemitta restrictions by selling Israeli land and its produce for the duration of the Shemitta year to non-Jews. Utilizing this method would technically mean that Israeli Esrogim do not maintain Kedushas Sheviis status and may be sold as usual. However, historical possible reliance notwithstanding [see, for example, Rav Yechiel Michel Tukachinsky’s Sefer HaShemitta at length (who devotes the entire second half of his sefer to the nuances of reliance on ‘Hetter Mechira’); Rav Avrohom Yitzchak Hakohen Kook - one of the prime proponents of ‘Hetter Mechira’ b’shaas hadchak – wrote numerous responsa on topic, including Shu”t Mishpat Kohen (86 and 87) and the preface to his Shabbos Ha’aretz (Ch. 14 and 15); and more recently, R’ Sam Finkel’s fascinating, historical Rebels in the Holy Land], nowadays, the vast majority of contemporary poskim [see, for example Chazon Ish (Sheviis, Ch. 21: 8 and 9, Ch. 24, and Ch. 27: 7), Kraina D’Igresa (vol. 1: 154), Shu”t Divrei Yoel (vol. 1: 96, 6), Shemitta Kehilchasah (Ch. ‘Hetter Mechira Bizmaneinu’), Derech Emunah (vol. 4, Hilchos Shemitta V’Yovel Ch. 8,Tziyun Hahalacha 7and Michtavim M’Maran Zt”l 26-27), the Badatz Eidah Hachareidis’ Dvar HaShemitta (and Kol Koreh printed in the beginning), Orchos Rabbeinu (new edition; vol. 3, pg. 258), and Chut Shani on Hilchos Yom Tov v’Chol Hamoed (Michtavim pg. 373-374) with Kol Koreh signed by Rav Yosef Shalom Elyashiv, Rav Shmuel Halevi Wosner, Rav Aharon Yehuda Leib Steinman, Rav Chaim Kanievsky, Rav Michel Yehuda Lefkowitz, Rav Nissim Karelitz, and Rav Yehuda Shapiro] categorically reject relying on or even utilizing the ‘Hetter Mechira’ for any purpose whatsoever, even as a ‘snif lehakel.’ On the other hand, it is known that several poskim including Rav Shlomo Zalman Auerbach (see, for example, Maadanei Aretz, Sheviis, Ch. 1; Shu”t Minchas Shlomo,Kama vol. 1: 44, 1 s.v. ela and vol. 3, 158: 4; and Shulchan Shlomo on Sheviis, end sec. ‘Hetter Mechirah’), Rav Ovadiah Yosef (Shu”t Yabea Omer vol. 3, Yoreh Deah 19: 7; vol. 10, Kuntress HaShemitta, Yoreh Deah 37-44, at length; Shu”t Yechaveh Daas vol. 4: 53, pg. 267, and his letter printed at the beginning of Yalkut Yosef on Sheviis and Ch. 25 ad loc. at length), and Rav Mordechai Eliyahu (Shu”t Ma’amar Mordechai vol. 5, ‘V’shavsah Ha’aretz’, 21), were of the opinion that there is validity to the sale b’dieved and that in extenuating circumstances one may indeed rely upon it, and the produce is permitted for consumption. It is also worthwhile to see Rav Meir Mazuz, Rosh Yeshivas Kisei Rachamim of Bnei Brak’s impassioned defense of ‘Hetter Mechira’ nowadays (printed in Techumin vol. 35; 5775). Of course, the Israeli Chief Rabbinate relies upon it as well for their basic hashgacha. However, all things equal, it would certainly seem that with all of its inherent issues, using non-problematic produce would undoubtedly be a preferred option. See also Shu”t Igros Moshe (Y.D. vol. 3: 131) who refers those in Chutz La’aretz to ask Gedolei Eretz Yisrael,including the talmidim of the great Rabbanim who lived there, such as the Chazon Ish and Brisker Rav, how they should treat Peiros Sheviis. However, even Rav Avrohom Yitzchok Hakohen Kook wrote several teshuvos (Shu”t Mishpat Kohen ibid.) explaining that he held it only works in theory regarding sendingShemitta Esrogim toChutz La’aretz, but not necessarily on a practical level, and concludes that if relying on it, one should still only do so in conjunction with havla’ah on the Lulav.To sum it up, utilizing ‘Hetter Mechirah’ to commercially sell Shemitta Esrogim in Chutz La’aretz would seem tenuous at best. 7) Interestingly, R’ Yosef Kletzkin (in his ma’amar in Kovetz Tzohar, vol. ‘Ohel Chanoch’, Tamuz 5761) combines many of these divergent minority opinions and rationales (even though several are quite contradictory to each other), opining that irregardless of the reason or opinion, still, the fact that there are several approaches to advocate leniency should be sufficient for allowing shipping of Kedushas Sheviis Esrogim to Chutz La’aretz. He concludes with citing a passage brought in Bris Olam (pg. 41), “v’chol Yisrael b’chol tefutzos HaGolah haya michav’vim v’hayu mevorchim al Esrogei shel Eretz Yisrael Hakedoshim b’Kedushas Sheviis, u’Mitzvah goreres Mitzvah she’al y’dei Netilas Arbah HaMinim hayu mekaymim ode Mitzvah Chavivah - Yishuv Eretz Yisrael.”
See Shu”t Meishiv Davar (vol. 1: 50 pg. 117 s.v. al dvar mischar), Kuntress Mishmeres Lehabayis (printed at the end of the Beis Ridbaz version of Pe’as Hashulchan ppg. 22a – 23b; with published letters from the Chazon Nochum - Rav Nochum Weidenfeld , and the Machazeh Avrohom - Rav Avrohom Menachem Halevi Steinberg, Av Beis Din of Brody), Rav Shmuel Salant’s posthumously published Aderes Shmuel (Hilchos Terumos U’Maaseros 303; pg. 313-314), Chazon Ish (Sheviis 13: 4 s.v. Pesachim), Toras HaShemitta (pg. 28, note 34), Kraina D’Igresa (vol. 1: 150), Seder HaSheviis (7), Shemitta Kehilchasah (Ch. 3: 17), Moadim U’Zmanim (vol. 8, Lekutei Ha’aros to vol. 6: 54), Teshuvos V’Hanhagos on Sukkos (pg. 345 and 357-358: 2), Derech Emunah (vol. 4, Hilchos Shemitta V’Yovel Ch. 5: 96), Shu”t Minchas Shlomo (Tinyana 123: 9), Halichos Shlomo (Moadim vol. 1, Ch. 10: 30), Shu”t Emek Hateshuvah (vol. 2: 1), Minchas Asher (Sheviis, Tinyana 14: 4), and Yalkut Yosef (Sheviis Ch. 20: 16). It is also worthwhile to read Rav Yosef Shalom Elyashiv’s teshuvah on topic from 5733 (printed in Kovetz Halichos Sadeh vol. 50, pg. 8-9: 6; reprinted at the end of Mishpetei Aretz, Teshuvos HaGri”sh Elyashiv 4) where he writes that sending a Shemitta Esrog (singular tense) to Chutz La’aretz, ‘B’pashtus’ violates a Mishnah Mefureshes in Maseches Sheviis, as well as the Rambam. He adds that although there are Acharonim who ‘chatru limtzo hetter badavar,’ (literally, tunneling or digging to find any sort of justification), nevertheless, he concludes that unless one’s parnassah is entirely dependant on it, he should not ‘act in this manner’ of attempting exporting Esrogim to Chutz La’aretz. [He later concludes (Mishnas HaGri”sh ibid. Ch. 10:5) that if one cannot otherwise find a kosher Esrog in Chutz La’aretz (even just for nanuim) he may then take one out from Eretz Yisrael (or purchase it there), but return it (or have it returned) immediately after Sukkos to Eretz Yisrael before its Zman Biur. More on this later on.] Although Tosafos in Pesachim (52b s.v. Rav Safra; first teirutz) implies that there is a hetter for Schoirah in Chutz La’aretz, the Chazon Ish (ibid.) amends the girsa to read a hetter achilah, and not Schoirah. Additionally, the Pe’as Hashulchan (22: 56) and Chochmas Adam (Shaarei Tzedek, Shaar Mishpatei Ha’aretz Ch. 11, Binas Adam 5), although with the original girsa, maintain that Tosafos meant ‘ledavar mu’at, a small quantity’ of merchandise. Others maintain that the halacha follows the second terutz, that it was b’shogeg; otherwise, it would be prohibited. This is addressed later in the article.
This is essentially a machlokes Rishonim in the end of Gemaros Sukkah (39b) and Yevamos (122a) with Rabbeinu Tam taking the stringent approach and arguing on his grandfather, Rashi, who was lenient. Many other Rishonim take sides as well. In fact, the Rambam (Hilchos Shemitta V’Yovel Ch. 1: 12; however, see his Shu”t Pe’er Hador 15, where he seemingly changes his mind) writes that any produce being grown during Shemitta, whether intentional or not, must be uprooted! Yet, lemaaseh, he implies that the actual produce is still permitted to be eaten (Hilchos Shemittah V’Yovel Ch. 5: 13 and Ch. 6: 1). In fact, Tosafos (Kedushin 52a s.v. hamekadesh) concludes similarly. Other poskim who allowed it (as they held the issur is only on the seller, and not on the buyer) include the Mabit (Shu”t vol. 1: 21), the Kapos Temarim (Sukkah 39a), the Noda B’Yehuda (Kama, Even Ha’ezer 77 s.v. umah shehavi mechutani), Ridbaz (Beis Ridbaz glosses to Pe’as Hashulchan 5: 18; regarding taking abroad), and the Rogatchover Gaon (Shu”t Tafnas Pane’ach HaChadashos 94 s.v. harbeh). On a more contemporary note and quite interestingly, although the Chazon Ish (Sheviis, Ch. 26 Seder HaSheviis 1 s.v. avar) explicitly rules that such produce is forbidden for consumption, nevertheless it is widely quoted that he really held that it was muttar me’ikar hadin. See Kovetz Igros Chazon Ish (vol. 2: 162), Kreina D’Igresa (vol. 1: 147), Orchos Rabbeinu (vol. 2, Sheviis 81 and 82; however, the Steipler Gaon was stringent), Derech Emunah (vol. 4, Hilchos Shemittah V’Yovel Ch. 6, Tzion Hahalacha 12), ChutShani(Sheviis, Ch. 6: 1), Shu”t Cheishev Ha’Eifod vol. 1: 22), Shu”t Mishnas Yosef (vol. 3: pg. 149), Dinei Sheviis Hashalem (Ch. 22: 1), Mishmeres HaSheviis (Ch. 11: 7), and Shevus Yitzchak (B’Dinei Sheviis U’Prozbol, end Ch. 9). However, Rav Moshe Feinstein (Shu”t Igros Moshe, Orach Chaim vol. 1: 186) and Rav Shlomo Zalman Auerbach (Shu”t Minchas Shlomo, Kama 44: 1 s.v ela) both outright permitted the food to be eaten. See also Rav Elazar Kahanow’sToras HaSheviis (Ch. 1-3) who avers similarly at length. This is also how it is cited lemaaseh in Dinei Sheviis Hashalem (Ch. 17: 2 and Ch. 27: 1). On the other hand, it is known that many Gedolei Yerushalayim of previous generations forbade such produce outright. Indeed, Rav Moshe Sternbuch, in his Shemittah Kehilchasa (Ch. 3: 17) cites several machmirim who forbid their consumption, including the Raavad, the Ra”sh and the Vilna Gaon, and cites that Rav Moshe Mordechai Epstein ruled that one should attempt to return them to Eretz Yisrael. He concludes that it is preferable not to consume such Shemitta produce in Chutz La’aretz, but rather leave them until they rot by themselves. Similarly, Rav Chaim Kanievsky (Derech Emunah vol. 4, Hilchos Shemittah V’Yovel Ch. 7, Tzion Hahalacha 125) concludes that it’s preferable to rather try to send it back to Eretz Yisrael. Rav Yosef Shalom Elyashiv (Kovetz Teshuvos vol. 1: 232, 2; also cited briefly in Derech Emunah Ch. 6 ibid.) cites this issue as machlokes between the Noda B’Yehuda (ibid.) against the Sefer Hamakneh (Kiddushin 52a) and Rav Yitzchak Halevi (cited by the Makneh; see also his Metaamei Yitzchak, 17 and Ketzos Hachoshen 182: 2) whether or not the purchaser is also considered transgressing the Issur of Sechora. However, Rav Elyashiv’s practical position (cited in Shevus Yitzchak, B’Dinei Sheviis U’Prozbol Ch. 9, pg. 88–89), citing precedent of the Pe’as Hashulchan and the Vilna Gaon, as well as that of the Badatz of the Eidah Hachareidis (in their Dvar HaShemitta 5775, 5: 1 and 2, pg. 56), citing precedents of the Ridbaz and Rav Chaim Berlin, that any produce that is Shamor V’Ne’evad is strictly forbidden to be eaten. For more on this topic, see Mishpetei Aretz (Sheviis, 19: 13 and 14), Minchas Asher (Sheviis, Tinyana 15: 2), and Rav Ezriel Auerbach’s recent extensive maamar on topic in Machon Madaei Technologia B’Halacha’s Aspaklaria (39; Nissan 5782) detailing the halachic issues with sechora of Peiros Sheviis.
See Chazon Ish (Sheviis, 10: 6 s.v. v’im and v’Esrogin), Shu”t Igros Moshe (Orach Chaim vol. 1: 186 and Orach Chaim vol. 5: 42), Toras HaSheviis (1 - 3; at length), Derech Emunah (vol. 4, Hilchos Shemitta V’Yovel Ch. 5: 96), Shu”t Videbarta Bam (vol. 1: 176, 4 s.v. al kol panim), Sefer Dinei Sheviis Hashalem (Ch. 27: 9), Hararei Kedem (vol. 1: 142), and Yalkut Yosef (Sheviis Ch. 20: 14 and 16). This is also the shittah of several earlier Acharonim, that one does not need to make a cheshbon how these Shemitta Esrogim arrived on foreign shores; just that now they are there they may be used for a brachah. See Shu”t Beis Yitzchok (end Yoreh Deah 121), Shu”t Maharash Engel (vol. 2, Yoreh Deah 4), and Shu”t Maharam Brisk (vol. 1: 125). On the other hand, there are several poskim, including the Imrei Yosher (Shu”t vol. 1: 183), the Machazeh Avrohom (vol. 1: 146, end s.v. amnam), the Satmar Rebbe (Shu”t Divrei Yoel vol. 1: 96, 4), Rav Menashe Klein (Shu”t Mishnah Halachos vol. 12: 247 s.v. u’mihu), and Rav Moshe Sternbuch (Shemitta Kehilchasah Ch. 3: 17), who aver that the above only applies with other sefeikos, but one may not make a brachah on an Esrog that was vaday Shamor or Ne’evad from the field of a Jew (and especially if such was sent to Chutz La’aretz). The Steipler Gaon as well (Kreina D’Igresa vol. 1: 150) was notteh not to make a brachah on such an Esrog in Chutz La’aretz. Several of these poskim, as well as the Mishmeres Shalom (Chaim U’Brachah, os shin, 308) and the Divrei Yisrael (Shu”t vol. 1: 181; even while praising and publicizing preference to purchasing Esrogim grown in Eretz Yisrael, and even during Shemitta), point out that the case the Beis Yitzchok was paskening was regarding Esrogim grown by non-Jews on their own land in Eretz Yisrael - that was then sent to Chutz La’aretz, which is why it was permitted (and even preferred over other types of Esrogim). They maintain that if was grown on Jewish land it may not have been. A similar ruling was given by the Sha’arei Deah (Shu”t 8), after citing various ‘sniffim lehakel,’ that the above hetter only applies lechatchillah with a Shemitta Esrog grown on a non-Jew’s land; on the other hand, if grown on Jewish land during Shemitta one may only be ‘tzaded lehetter b’shaas hadchak’. As mentioned previously, following this nowadays would not prove simple, as the vast majority of Esrog pardessim in Eretz Yisrael are under Jewish ownership. See next footnote.
Shu”t Videbarta Bam(vol. 1: 176, 4 s.v. al kol panim) based on Shu”t Igros Moshe (Orach Chaim vol. 1: 186), and Chazon Ish (Sheviis, 10: 6). See also Rav Elazar Kahanow’sToras HaSheviis (1-3; at length). These poskim contend that there is also no issur of lifnei iver by purchasing these Esrogim, as the sellers had whatever shittah or sevara to rely upon, however contentious and tenuous they may be lemaaseh. Therefore, the issur is strictly encumbent upon them, and not the purchaser. Even so, several of these poskim maintain a preference, if at all possible, for non-Shamor or Ne’evad Esrogim [see, for example Orchos Rabbeinu (new print; vol. 3 pg. 263: 9, pg. 264: 15, pg. 273: 51), Shemitta Kehilchasah (Ch. 3: 17), Sefer Dinei Sheviis Hashalem (Ch. 27: 9), and Yalkut Yosef (Sheviis, Ch. 20: 14).] On a practical level, this might mean if one is in Chutz La’aretz and his choices of Esrogim are exclusively between an Otzar Beis Din or Hetter Mechirah Esrog, although both might have gotten there b’issur, there might be a preference to choose the Otzar Beis Din Esrog.
Shu”t Igros Moshe (Orach Chaim vol. 5: 42 s.v. u’lchein).
Pe’as Hashulchan (24: 56) and Chochmas Adam (Shaarei Tzedek, Shaar Mishpatei Ha’aretz Ch. 11, Binas Adam 5).
Pirush HaRash (Sheviis, Ch. 6, Mishnah 5). The Rambam (Hilchos Shemitta V’Yovel Ch. 6: 1) also does not seem to make a distinction, and rules the all commercial merchandising is assur. Interestingly, both the Pe’as Hashulchan (ibid.) and Chochmas Adam (Shaarei Tzedek Ch. 17: 24) actually conclude that the ikar follows the second answer.
Chazon Ish (Sheviis 13: 4 s.v. Pesachim), Sefer Mishpetei Aretz (Sheviis, Ch. 20: 3 - footnote 6). See also Sefer Peiros Sheviis (pg. 201), Chut Shani (Shemitta Ch. 5: 13), and Kovetz M’Beis Levi (vol. 16, pg. 35).
See the Chazon Ish’s letters published in Orchos Rabbeinu (new print; vol. 3 pg. 272 - 273), as well as the Steipler Gaon’s hanhaghos based on them, Kreina D’Igresa (vol. 1: 151), Derech Emunah (vol. 4, Hilchos Shemitta V’Yovel Ch. 5: 96 and Michtavim M’Maran Zt”l #27), Shu”t Teshuvos V’Hanhagos (vol. 2: 560) and Shemitta Kehilchasah (Ch. 3: 17) - citing sefer Pri Eitz Chaim that the Brisker Rav and Rav Isser Zalman Meltzer personally relied on this hetter (the Brisker Rav’s letter to Rav Meltzer was recently republished inKovetz Tzohar, vol. ‘Ohel Chanoch’, Tamuz 5761 pg. 529),Sefer Dinei Sheviis Hashalem (Ch. 27: 7),Sefer Mishpetei Aretz (Sheviis, Ch. 20: footnote 6), Minchas Asher (Sheviis, Tinyana 14: 4), and Yalkut Yosef (Sheviis, Ch. 20: 16). However, it is known that Rav Shlomo Zalman Auerbach would not rely on this hetter unless someone was literally stuck in Chutz La’aretz with no alternative Esrog (Halichos Shlomo, Moadim vol. 1, Ch. 10: 30 and footnote 115). Similarly, Rav Yosef Shalom Elyashiv wrote (responsum printed in Kovetz Halichos Sadeh vol. 50, pg. 8 - 9: 6) that sending a Shemitta Esrog (singular tense) to Chutz La’aretz is ‘B’pashtus’ against a Mishnah Mefureshes in Maseches Sheviis, as well as the Rambam, and concludes that one should not do so unless one’s parnassah is entirely dependant on it.
See Orchos Rabbeinu (old print vol. 2 pg. 331; new print, vol. 3 ppg. 272-273), Kreina D’Igresa (vol. 1: 151), Derech Emunah (vol. 4, Hilchos Shemitta V’Yovel Ch. 5: footnote 179), and Chut Shani (Shemitta Ch. 5, pg. 248 - 249). The reason for this is that the Zman Biur for Esrogim is unclear. The Chazon Ish was choshesh that it is in Tishrei [the Maharil Diskin (cited in Shu”t Mishnas Yosef vol. 3: 34, pg. 179) held that this is the Esrog’s the Zman Biur as well], and therefore mandated the Esrog’s cooking and eating immediately after the conclusion of Sukkos. This was also the approach of the Netziv (his letter is printed in his Shu”t Meishiv Davar vol. 1: 50). [On the other hand, other poskim hold that the Esrog’s Zman Biur is later in the year and therefore many mandate shipping the Esrog back to Eretz Yisrael for its Biur. See next footnote.] However, several contemporary poskim, including Rav Moshe Sternbuch (Shemitta Kehilchasah Ch. 3: 17; in the footnote), Rav Dovid Feinstein (cited in Shu”t Videbarta Bam vol. 1: 176, 6, pg. 450 s.v. v’shamaati), and Rav Asher Weiss (Minchas Asher, Sheviis, Tinyana 14: 4), question the need to eat the Shemitta Esrog in Chutz La’aretz immediately after Sukkos, as several Rishonim are of the opinion that the reason for the proscription of taking Kedushas Sheviis produce out of Eretz Yisoel in the first place is because one may not eat such produce out of Eretz Yisrael.
This is so that both the Esrog’s achilah and / or Biur are performed in Eretz Yisrael. See Shu”t Tzitz HaKodesh (vol. 1: 15, 5), Shemitta Kehilchasah (Ch. 3: 17; citing Rav Moshe Mordechai Epstein), Minchas Shlomo (Sheviis, Ch. 6: 5), Halichos Shlomo (Moadim vol. 1, Ch. 10: Dvar Halacha 48), Sefer Dinei Sheviis Hashalem (Ch. 27: 8), Mishmeres HaSheviis (22: 10), and Mishnas HaGri”sh (Peiros Sheviis, Ch. 10:5). This is seemingly in line with Rav Shmuel Salant’s ruling (see Sefer HaShemitta, Ch. 9: 9, note 4; and quoted by several later sefarim) that the Zman Biur of the Esrog is generally in Shevat. See also Shu”t Mishnah Halachos (vol. 12: 247) who writes that if at all possible then the Esrog should be sent back to Eretz Yisrael after Sukkos, if not, then it should be eaten right away in Chutz La’aretz, before its Zman Biur. On the other hand, Rav Moshe Feinstein (Shu”t Igros Moshe, Orach Chaim vol. 5: 42) holds that lema’aseh there is no actual issur achilah of Shemitta produce in Chutz La’aretz, implying that one is not mandated to send it back to Eretz Yisrael. [Interestingly, Rav Moshe (see Dibros Moshe on Kedushin 2, anaf 6 s.v. v’nimtzah and on Bava Kamma 73; also addressed in Shu”t Videbarta Bam vol. 1: 176, 5 s.v. v’shamaati, pg. 448, citing Rav Dovid Feinstein) was of the opinion to be choshesh lechatchillah for the opinion that Zman Biur is dependant on when the fruit is picked (basar lekitah) and therefore an Esrog’s Zman Biur is potentially on Erev Rosh Hashanah of the eight year. He therefore holds that one should preferably obtain an Esrog that was picked after Rosh Hashanah. Alternatively, he advises to be mafkir one’s Shemitta Esrog before the onset of Rosh Hashanah and then immediately re-acquire it. In this way one can fulfill his Biur obligation. This was detailed at length in previous articles.] Rav Moshe Sternbuch (Shemitta Kehilchasah Ch. 3: 17) seemingly agrees and although preferring that these Esrogim get sent back to Eretz Yisrael, nevertheless concludes that in Chutz La’aretz, me’ikar hadin one may leave these Shemitta Esrogim out until they rot and then may disposed of them in a proper manner.