Insights into Halacha

For the week ending 3 October 2015 / 20 Tishri 5776

Shemitta Sheilos: Using Arbah Minim of Sheviis - Part 2

by Rabbi Yehuda Spitz
Shemitta Basics Part VIb
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The previous article in this series explained that it seems that the best solution for the masses in Eretz Yisroel when acquiring Shemitta Esrogim is to utilize a properly run Otzar Beis Din. 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, all of which impact the three questions we started with.

What About Chutz La’aretz?

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 if 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 Sukko: 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.

You see, as mentioned in the previous article, 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 import boxes of such Esrogim to Chutz La’aretz and sell them 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 of Shemitta) would also apply. How can an importer violate several main tenets of the halachos of Sheviis?

Although there are potential solutions according to several opinions, 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 informed the importer that this year it is preferable if he imports his Esrogim for the masses from Chutz La’aretz itself and not get entangled in this complicated Shemitta sheilah.

Mass Purchase

However, it is important to note that the above response is only for an importer, 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, 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’. However, they must still be treated as befits Kedushas Sheviis produce (which has been discussed at length in previous articles).

Private Import

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 issue 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 halachah follows the second answer, that it was accidental; otherwise, such actions would clearly be prohibited.

However, the Chazon Ish amends Tosafos’ girsa (text) to read ‘l’achilah, for food’, that it is permissible to take food meant to be eaten to Chutz La’aretz, but not as merchandise. Therefore, he maintains that certainly commercial merchandising is forbidden. However, accordingly, Tosafos is averring that a small amount of Shmitta produce to eat would be essentially permitted to be taken along when leaving Eretz Yisroel. 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 in cases of great need. Come what may, we see that commercial exporting and selling would not be allowed.

Makom Mitzvah

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 Yisroel in 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 Yisroel 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 personal agent to bring (or send) him such an Esrog this year from Eretz Yisroel as well, exclusively in small quantities and for private, non-commercial use.

However, for those utilizing his leniency, it is known that the Chazon Ish himself mandated cooking and eating the Shemitta Esrog immediately after Yom Tov, while others maintain that it rather be returned to Eretz Yisroel after its Sukkos use. In any case, there is a possible solution for our bochur’s Esrog predicament.

In conclusion, we have seen three similar sounding Shemitta Sheilos, yet three very different answers. All the more of a reason why it is worthwhile for all of us, even those in Chutz La’aretz, and even in Eighth year, to be proficient in the halachos of the Seventh.

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 when 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: [email protected].

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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