Insights into Halacha

For the week ending 12 March 2022 / 9 Adar Bet 5782

Mishloach Manos with Shemitta Produce

by Rabbi Yehuda Spitz
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With Purim rapidly approaching in our Shemitta year andSheviis produce now commonly commercially available, an important question is raised: Although we know that the Purim Mitzvah of Mishloach Manos (sending food items to a friend) is intended to foster brotherhood and camaraderie, may one gift his friend with Kedushas Sheviis produce for Mishloach Manos? Alternatively, are these ‘holy fruit’ perhaps considered too ‘holy’ for such Purim use? Interestingly, there is no clear-cut solution to this Purim dilemma, and contemporary authorities are divided as to the proper halacha.

However, to properly understand the issues involved, some background is necessary.

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) regarding 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 (Sheviis Ch. 8:2), and duly codified as halachah,[1] 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.[2]

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 technically regarded as a ‘need’, fulfilling a Mitzvah is not deemed an actual personal benefit. If so, may one use Shemitta produce to fulfill such a Mitzvah or obligation?

The answers to these questions will guide us as to whether one may gift 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.

View # 1 – Akin to Paying a Debt

A number of poskim, including the Ben Ish Chai, the Rogatchover Gaon, Rav Yosef Shalom Elyashiv, Rav Betzalel Zolty, Rav Shmuel Halevi Wosner, Rav Mordechai Eliyahu, Rav Chaim Kanievsky, and the Mishnas Yosef, maintain that since the Mitzvah of Mishloach Manos is obligatory, sending Kedushas Sheviis produce for Mishloach Manos is classified as akin to using Shemitta produce to pay a debt, an action which should be prohibited under the Shemitta restriction of L’achlah to be eaten, and not for sechorah, referring to merchandise or commercial use.[3]

As this restriction includes paying a debt, these authorities hold that one may not send Mishloach Manos with Shemitta produce.[4] These poskim assert 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.

View # 2 – It’s Personal

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.[5] Other authorities who ruled this way include Rav Elazar Menachem Mann Shach, Rav Shlomo Zalman Auerbach, the Minchas Yitzchak, Rav Yisrael Yaakov Fischer, Rav Menashe Klein, Rav Nissim Karelitz, and Rav Asher Weiss.[6]

These authorities 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, akin to betrothing a woman, which may indeed be fulfilled with Shemitta produce.[7] Hence, ‘Holy Mishloach Manos’ would indeed be permitted.

View # 3 – No Reciprocation

Rav Nosson Gestetner maintained a novel, yet in-between approach. He concluded that sending the first Mishloach Manos with Shemitta produce is permitted. Yet, he holds that one may not reciprocate for a Mishloach Manos received with a Mishloach Manos consisting of Shemitta produce, as the idea of reciprocating (“tagmulin”) Mishloach Manos is based on a sort of ‘ethical debt’ to repay someone who did something nice for you.[8]

Caveat Emptor

It is important to note however, that even those who rule strictly 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. This would certainly hold true if one is relying upon ‘Hetter Mechira’ Israeli produce to gift and the recipient does not,[10] and especially if gifting Israeli produce in Chutz La’aretz.[11]

A simple notification would go a long way to avoid potential unpleasantness. Similarly, if one suspects that the recipient will not treat the Shemitta fruit as properly befits Kedushas Sheviis produce,[12] then one should not use such fruit for this Mitzva.

The Biur Necessities

Although not too relevant for this year’s Purim, one should still be aware of another important issue relevant to using Shemitta fruit for Mishloach Manos - that it is subject to the laws of Biur. 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’ (ownerless) in front of three people.[13] Every type of Shemitta 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, in the eighth year.[14]

This means that if one chooses to give Mishloach Manos with Kedushas Sheviis produce, it must be prior to that individual fruit’s Zman Biur.[15] This Purim, this would not be an issue, but it certainly would apply next year, when Shemitta produce will still be extant. If one neglected to properly perform Biur at 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. Just some food for thought when discussing Kedushas Sheviis produce, especially when dealing with the seemingly innocuous festive Mitzvah of Mishloach Manos.

A Freilichen Purim to all Klal Yisrael!

This article was written L’iluy Nishmas this author’s beloved grandmother, Chana Rus (Spitz) bas Rav Yissachar Dov a”h and uncle Yeruchem ben Rav Yisroel Mendel (Kaplan) zt”l, and l’zechus Shira Yaffa bas Rochel Miriam v’chol yotzei chalatzeha for a yeshua sheleimah teikif u’miyad!

Rabbi Spitz’s recent English halacha sefer, “Insights Into Halacha - Food: A Halachic Analysis,” (Mosaica/Feldheim) has 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.

[1] 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).

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

[3] 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’.

[4] Shu”t Torah Leshmah (193; cited in Sefer Dinei Sheviis Hashalem Ch. 17: 9), Shvus Yitzchak (B’Dinei Sheviis U’Prozbol Ch. 8, pg. 76), Mishnas Yaavetz (Orach Chaim 80: 1 and 2), 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.

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

[6] 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), Halichos Even Yisrael (Moadim vol. 2, pg. 452 - 453, 7 and 8), Shu”t Mishnah Halachos (vol. 18: 345), Chut Shani (Shemitta, pg. 298), and Minchas Asher (Sheviis: Tinyana 47).

[7] See Gemara Kedushin 52a and Rashi ad loc. (s.v. hamekadeish).

[8] (Shu”t Lehoros Nosson (vol.10: 57 and 58).

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

[10] Some maintain that one may rely upon the halachically controversial method of ‘Hetter Mechira’ (selling Israeli produce and / or its land for the duration of the Shemitta year to a non-Jew), as utilizing this would technically mean that the Israeli produce does not maintain Kedushas Sheviis status and may be sold, and hence gifted as usual. However, previous 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 Mechirahb’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 & 9, Ch. 24, and Ch. 27: 7), Kraina D’Igresa (vol. 1: 154), Shu”t DivreiYoel(vol. 1: 96, 6), Shemitta Kehilchasah (Ch. ‘Hetter Mechira Bizmaneinu’), Derech Emunah (vol. 4, Hilchos Shemitta V’Yovel, Michtavim M’Maran Zt”l#26 & 27), the Badatz Eidah Chareidis’ 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 Mechirah’ 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 HaShemittah, 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. It is also worthwhile to see Rav Meir Mazuz, Rosh Yeshivas Kisei Rachamim of Bnei Brak’s impassioned defense of ‘Hetter Mechirah’ 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.

[11] It is important to note that receiving Mishloach Manos in Chutz La’aretz containing Kedushas Sheviis produce hosts an additional set of complications, including the prohibition of taking Shemitta produce out of Eretz Yisroel. Mishnayos Sheviis (Ch. 6, Mishnah 5; see also the Rash’s and Vilna Gaon’s Shnos Eliyahu commentary ad loc.), Sifra / Toras Kohanim (Parashas Behar 1: 9; see also the commentaries of the Raavad, Rash MiShantz, and Gr”a ad loc.), Tosefta (Sheviis Ch. 5: 1), Rambam (Hilchos Shemittah V’Yovel Ch. 5: 13),Pe’as Hashulchan (24: 18), Shaarei Tzedek (17: 24), Aruch Hashulchan Ha’Asid (Hilchos Shemittah V’Yovel 24: 25), Chazon Ish (Sheviis 13: 4 s.v. Pesachim), Shemittah Kehilchasah (Ch. 3: 17), andMishpetei Aretz (Sheviis, 20: 2). Although many poskim maintain that b’dieved one may indeed partake of them once they are already in Chutz La’aretz (although quite questionable whether one should be gifting them to another; moreover, one should be aware that the exporters and importers probably relied upon Hetter Mechirah; which is not a simple proposition, as delineated in a previous footnote and at length in previous articles), this is strictly prior to the fruit’s Zman Biur. Otherwise, they are vaday 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, 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.

[12] As delineated at length in previous articles titled ‘Kedushas SheviisProduce’ and ‘Fruit Use and Fruit Juice’.

[13] 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.

[14] 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.

[15] Alternatively, 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).

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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