from BabagaNewz Magazine, Tevet-Shevat 5768 / December 2007-January 2008

Danny Maimoun's farm in Israel produces $2.5 million worth of sweet peppers, and Moshe Danino's turns out $1 million worth of tomatoes. Each farmer has struggled to build a successful business in a competitive industry. Danino, however, is sacrificing profits this year to observe shemittah, the Torah commandment (Shemot 23:10-11) that requires that Jewish-owned land in Israel remain fallow (unplanted) one year out of every seven. Maimoun, on the other hand, is taking advantage of a controversial Talmudic loophole called heter mekhirah, which allows him to symbolically sell his land to a non-Jew and, thereby, sidestep shemittah's restrictions. "It would be very nice to rest for one year," says Maimoun, "but it's impossible for us, because we could lose all our European clients." Danino, who also kept the last shemittah in 2000, explains that the spiritual profits from shemittah outweigh the economic losses. "I do this for the mitzvah," he explains, "and it has greatly strengthened my faith [in God]."

LOOPHOLE FOR SURVIVAL?
Maimoun and Danino's differences reflect a religious controversy that has divided modern Israel since the late 1800s. When Jewish pioneers (halutzim) returned to Eretz Yisrael, they were the first generation in 2,000 years to have the opportunity to observe shemittah. For the most part, though, halutzim were secular Jews, indifferent to religious practices. Instead of welcoming the prospect of keeping shemittah, many pioneers complained that it threatened their survival. To ease their burden, Rabbi Abraham Isaac Kook, who became the first Chief Ashkenazi Rabbi of Palestine (see page 1), permitted the heter mekhirah loophole. "This is merely a temporary measure," he wrote in 1910. "God forbid that one should consider annulling a great and central mitzvah such as shemittah unless it is a matter of life and death, such that if we do not sell the land many will die of starvation and the fledgling new Jewish settlement in the Land of Israel will be destroyed."

LEGAL SHOWDOWN
Rabbi Kook's opinion established a firm precedent, despite continuous objections from ultra-Orthodox Jews who argue that Jewish law (Avodah Zarah 20a) forbids selling land in Israel to non-Jews. Because the "sale" is only temporary, the Chief Rabbinate ignored the criticism and always provided kashrut certificates for heter mekhirah produce. This year, however, the Chief Rabbinate changed its ruling. While still approving the lenient policy, they agreed that local rabbis could decide for themselves whether to certify as kosher produce from farms relying on the heter mekhirah. In response, five groups of farmers sued the Chief Rabbinate in Israel's High Court of Justice. They claimed that the new stance not only would cost them millions of dollars in lost income, but also could enrich Israel's Arab enemies, who would meet the demand for produce if Israeli farmers were prohibited from planting.

A JUST DECISION?
On October 24, 2007, Israel's High Court ruled against the Chief Rabbinate, saying the Rabbinate Council erred when it allowed local rabbis to reject heter mekhirah produce. Such a practice, said the judges, is unlawful because "the Chief Rabbinate is not authorized to expand and be more strict than the halakhic policies it has employed in the past," especially if the new policy could cause significant harm to the public at large.