Land-dependent mitzvot during the shemitah year

When and under what circumstances is produce obligated in terumot and ma'aserot during the shemitah year? What about orlah, neta revay, challah and kila'im during shemitah? Chapter 10 of the Consumer's Guide to Shemitah.

Rabbi Moshe Bloom

A. Halachic principles for terumot and ma'aserot

1. The yield of the shemitah year is ownerless and is therefore exempt from terumot and ma'aserot.[1]
2. Crops are obligated in terumot and ma'aserot during the shemitah year when:
   1. They grow on land sold through heter mechirah
   2. They grow on land belonging to a non-Jew, but the gemar melachah (final processing) is performed by a Jew.[2]
   3. Grains and legumes which began to grow before the shemitah year and reached a third of their growth by Rosh Hashanah (see Chapter 5 C.2) on land belonging to a Jew, even if by the end of their growth they belong to a non-Jew and their gemar melachah is performed by a non-Jew.[3]
3. Crops are exempt from terumot and ma'aserot when:
   1. They began their growth when in the ownership of a Jew, but reached a third of their growth when owned by a non-Jew; and
   2. The gemar melachah is performed a non-Jew.[4]

B. Terumot and ma'aserot for yield of the sixth year

1. Fruits and vegetables that halachically belong to the sixth year (see Chapter 5), but were harvested during the shemitah year, are obligated in terumot and ma'aserot, as explained below.
2. For fruit, there is a distinction between three different situations (for fruit that grew during the sixth year):
   1. Fruit that grew on property that wasn't sold to a non-Jew is obligated in terumot and ma'aserot with a blessing. Ma'aser ani (and not ma'aser sheni) should be separated from this produce.[5]
   2. Fruit that reached onat hama'aserot ("ma'aser season") before the land was sold to a non-Jew through heter mechirah, but harvested after the land is sold: terumot and ma'aserot should be separated with a blessing.[6]
   3. Fruit that reaches chanatah, the beginning of the fruit's development (which is the determining stage of growth for terumot and ma'aserot) at the beginning of the eighth year, before 15 Shevat: terumot and ma'aserot should be separated without a blessing.[7] Ma'aser sheni should be separated.[8]
3. For vegetables, there are two different scenarios:
   1. Vegetables harvested in the sixth year, even after the land is sold (during Elul), are obligated in terumot and ma'aserot—even if the gemar melachah is performed by non-Jewish workers.[9]
   2. Vegetables that reached a third of their growth during the sixth year before being sold to a non-Jew, and were harvested during shemitah, are obligated in terumot and ma'aserot—even if the gemar melachah is performed by non-Jewish workers.[10]

C. Terumot and ma'aserot for shemitah crops

1. Separating terumot and ma'aserot during shemitah differs in several ways from separating during other years. For this reason, a competent halachic authority should be consulted to determine the order of separation for this year.[11]
2. For fruit and vegetables that grew during shemitah on land sold to a non-Jew through heter mechirah, there are two different possibilities:
   1. When the gemar melachah is performed by non-Jews, the produce is exempt from terumot and ma'aserot, just like during other, non-shemitah years.[12]
   2. When the gemar melachah is performed by Jews, the produce is obligated in terumot and ma'aserot[13] but without a blessing.[14]
3. Ma'aser ani[15] should be separated from produce subject to terumot and ma'aserot during the shemitah One should also separate ma'aser sheni from doubt,[16] using the conditional phrase that if ma'aser ani is required, then it is ma'aser ani[17] (this is the standard text issued by Torah VeHa'aretz Institute's ma'aserot fund [Beit HaOtzar] and similar texts). In any case, it is not required to give ma'aserot to a levi or a poor person.[18]
4. In areas and for crops where shemitah sanctity is observed only due to doubt,[19] one should declare the yield ownerless before harvest, so that the crop should not become subject to terumot and ma'aserot.[20]
5. Imported agricultural produce that is processed in Israel (so the gemar melachah is performed by Jews) is subject to terumot and ma'aserot even during the shemitah [21] Ma'aser ani is separated from these products.[22]
6. The laws of terumot and ma'aserot unique to the beginning of the eighth year are delineated later on (see Chapter 27, C).

D. Orlah

1. The laws of orlah apply to the shemitah year, as in all other years.[23]
2. Orlah applies also in land belonging to non-Jews.[24] This includes land sold through heter mechirah.
3. Orlah fruit does not have shemitah sanctity.[25]
4. It is permissible to remove orlah fruit from trees in the following cases:
   1. If there is a concern that others will pick the fruit from the tree without asking for permission and there is no other way to prevent them from doing so.
   2. If failing to remove the fruit will cause substantial damage to the tree's future development.[26]

E. Neta revay

1. The laws of neta revay apply during shemitah year just like any other year. The fruit that is neta revay are redeemed during the shemitah year in the usual manner:[27] The one redeeming the fruit adds one-fifth of the fruit's value (chomesh), even if he is not the tree owner,[28] and if the fruit is definitely neta revay, the redemption is performed with a blessing.[29]
2. Redemption of neta revay fruit from land sold to non-Jews is performed without a blessing.[30]
3. If the trees are orlah or neta revay and require redemption, it is important to put up a sign notifying those who come to pick the fruit.[31]

F. Challah

Dough made by a Jew is subject to the laws of challah even if the flour in the dough is from grain with shemitah sanctity[32] or grain grown on land sold to a non-Jew.[33]

G. Kila'im

1. During the shemitah year one need not uproot weeds that grow in vineyards (unless they were sold through heter mechirah).[34] This is because the prohibition of kilei hakerem (interplanting with grapevines) does not apply to ownerless grapevines, nor to vineyards owned byotzar beit din.
2. The kilei hakerem prohibition does apply both in vineyards belonging to non-Jews[35] and to those sold to non-Jews through heter mechirah. One should take this into consideration when purchasing grapes from non-Jews and vegetables that they generally interplant in vineyards.[36]

It is forbidden for Jews to sow and cultivate kilei zera'im (interplanted crops) on land sold to a non-Jew.[37] However, it is permitted for a Jew to instruct a non-Jew to interplant diverse crops when the non-Jew is responsible for their cultivation.[38]

[1] Rambam, Hilchot Matanot Aniyim 6:5; Shulchan Aruch, YD §331:19; Betzet Hashanah, p. 44, s.v. yerakot.

[2] Rambam, Hilchot Terumot 1:11; Shulchan Aruch, YD §331:4. In this case there is also no obligation to give the produce to a levi or poor person, since the Jew tells them that he is acting in place of the non-Jew, from which neither the levi or poor person may take presents. See also Remah (YD, §331:19), who implies that ma'aserot should nonetheless be given to the appropriate people. See also Shabbat Ha'aretz 4:29 §4.
In principle, those who maintain that land belonging to a non-Jew has shemitah sanctity hold that the produce would be exempt from terumot and ma'aserot, even if the gemar melachah is performed by a Jew.

[3] Rambam, ibid., 1:13; Shulchan Aruch, YD §331:6. According to the Mabit (II §196, p. 51, column 3), this produce is exempt from terumot and ma'aserot since the gemar melachah (miru'ach) performed by the non-Jew totally exempts the produce from terumot and ma'aserot in our days (not only during shemitah). Rabbi Elyashiv (Halichot Sadeh §75, p.7) writes that we take this opinion into consideration with regard to the blessing. That is, it is necessary to separate terumot and ma'aserot without a blessing if the produce reach a third of its growth when owned by a Jew, but the gemar melachah is performed by a non-Jew This is also the opinion of Rabbi Eliahu.

[4] Rambam, ibid.; Shulchan Aruch, ibid.

[5] This fruit belongs to the sixth year and are considered owned by a Jew for all intents and purposes.

[6] It seems a blessing should be said, following the opinion of the Beit Yosef (not the Mabit's opinion, see n. ‎3). In this case, there is also an obligation to give the ma'aser rishon and ma'aser ani to a levi and poor person, respectively. See Rambam, ibid.; Shulchan Aruch, ibid.; on the obligation of giving ma'aser rishon and on the various doubts regarding the obligation of separating terumot and ma'aserot (throughout all years, regardless of shemitah), see Hatorah Veha'aretz II, pp. 49–123.

[7] See Shabbat Ha'aretz 4:13 §1 and n. 3. According to the Shelah (see Chapter 5, n. 1), who maintains that the determining stage for trees is 15 Shevat and not Rosh Hashanah, this fruit would still be considered shemitah fruit and not obligated in terumot and ma'aserot. In practice, we take his opinion into account with regard to the blessing, and we do not say a blessing on the separation. About vegetables that grew during shemitah but were harvested during the eighth year, meaning that they would be obligated in terumot and ma'aserot despite the fact that they have shemitah sanctity, see Shabbat Ha'aretz 4:8 §7.

[8] Chazon Ish §9:18, s.v. yoreh deah (יו"ד).

[9] Rambam, ibid; Shulchan Aruch, ibid.

[10] Rambam, ibid; Shulchan Aruch, ibid. For other types of crops, were shemitah sanctity is determined according to various stages of growth, one should consider the relevant halachic ramifications (they may have shemitah sanctity) It seems that one should say a blessing on this separation, since the halachah follows Beit Yosef, that vegetables belonging to a non-Jew does not have shemitah sanctity and they are definitely obligated in terumot and ma'aserot during this time. See n. 3 for the opinion that this separation should be made without a blessing.

[11] When famers separate terumot and ma'aserot during shemitah, the fact that they are not the owners of the produce should be taken into consideration, and a separation of terumot and ma'aserot performed as a non-Jew's agent (shali'ach) is invalid, since the concept of shelichut does not apply to non-Jews. Rabbi Ariel rules that farmers can separate terumot and ma'aserot thanks to the unlimited authority the non-Jew gave the farmer to cultivate the produce. For more on this, see the booklet, "Separating terumot and ma'aserot in the public system," 1:4,7.

[12] Rambam, Hilchot Terumot 1:13; Shulchan Aruch, YD §331:6.

[13] Beit Yosef, YD §331, s.v. ve'ein bah; Remah §19. See also Shabbat Ha'aretz 4:29 §4. The obligation to separate terumot and ma'aserot follows the rule of any produce grown in land owned by a non-Jew when the gemar melachah is performed by a Jew. See Betzet Hashanah, p.45, that terumot and ma'aserot should be separated from such produce. Note that in this case the crops do not have shemitah sanctity, even when the gemar melachah is performed by a Jew.

[14] The Maharit (I §43) attested that this was the practice of the Beit Yosef. This is also the ruling of: Pe'at Hashulchan §23:12; Eretz Chayim), §331:19, s.v. vehinei maharimat; Kerem Tziyon 19:1,5; Torat Hashemitah 16:85–87. See also Yabiya Omer V, YD §28,1 s.v. vele'inyan about whether grapes are obligated in terumot and ma'aserot if a Jew purchased them from a non-Jew and subsequently prepared wine from them; Shabbat Ha'aretz 4:29 §4. Kerem Tziyon, Shevi'it, 19:1, Kerem Tziyon Hashalem 4 Terumot, 2:8 p. 20, writes that we do not say a blessing even during standard years on produce grown by a non-Jew when the gemar melachah is performed by a Jew. . 

[15] The source of this halachah is Mishnah, Yadaim 4:3. See Kaftor Vaferach, ch. 47; Beit Yosef, YD §331 s.v. ve'ein bah; Remah §19; Pe'at Hashulchan, ibid.; Yaskil Avdi VI, Hashmatot, YD §§7,13; Tzitz Eliezer XI §66, s.v. ba'anavim.

[16] While ma'aser ani was instituted for the shemitah year on behalf of the poor (takanat aniyim), since today we only separate ma'aser ani but are not obligated to give it. The reasoning for this rests on the principle of hamotzi mechavero alav hare'ayah (one who wishes to take something from another's possession must prove that it is his); that is, the poor person has to prove that halachically this year ma'aser ani should be given and not ma'aser sheni, according to all opinions. Since he will not be able to prove this in light of the dispute among the halachic authorities on this matter, the owner does not have the obligation to give it to the poor person. One should also separate ma'aser sheni, since this is the regular order: since the sixth year was a ma'aser ani year, the seventh year, shemitah, would be a ma'aser sheni year. See Rabbi Shmuel Salant and the Aderet, Eder Hayakar, Iggerot Ha'aderet §15; Da'at Kohen §239, 1–2; Minchat Shlomo §37 believes that the main ma'aser today is ma'aser sheni; Kerem Tziyon 19, Gidulei Tziyon §1; Shabbat Ha'aretz, ibid., nn. 29–30.  

[17] Rabbi Kook concludes with the following (ibid.): "It is good and proper to first separate ma'aser sheni and redeem it without a blessing, and to say afterwards: 'and if it is necessary to separate ma'aser ani during this year, then what I called ma'aser sheni shall be ma'aser ani.'"

[18] Rambam, ibid.; Shulchan Aruch, YD §331:4.

[19] Such as the olei Mitzrayim territory (see Chapter 2, §A.3) or for fruit when Rosh Hashanah occurs between the stage of a third of its growth and a third of the ripening process (see Chapter 5, §C.2).  

[20] Da'at Kohen §240.

[21] Torah Hashemitah §16:167; Hama'aser Vehaterumah 2:11. See also the Aderet, Beshemen Ra'anan II; Kuntres Shevach Ha'aretz §36. See also booklet, "Separating terumot and ma'aserot in the public system," 8:2.

[22] This is the ruling of Rabbi Eliahu.

[23] Mishnah, Ma'aser Sheni 5:1.

[24] Mishnah, Orlah 1:2; Rambam, Hilchot Ma'aser Sheni and Neta Revay 10:5; Rosh, Kiddushin, chap. 1 §62; Neta Hillulim §5:23.

[25] Betzet Hashanah, p. 54 n. 1. Rabbi Eliahu noted that it is best to destroy them when they are small.

[26] Just like the rule for ukmei ilana, see Chapter 1, §A.4. Mishnah, Ma'aser Sheni 5:1 states that one should mark orlah trees during the shemitah year, since during this year it is permissible for anyone to pick the fruit. However, if people will disregard the sign and eat the fruit anyway, it is permissible to remove the fruit before it is taken by others.

[27] Rambam, Hilchot Ma'aser Sheni and Neta Revay 9:6.

[28] Betzet Hashanah, p. 54 §5. This is because during the shemitah year, all Jews are considered the legal owners of the fruit.

[29] Ibid.; bare-rooted trees planted in 5778 before 15 Av, and seedlings that were prepared in a halachically supervised nursery in 5778 until 15 Av and also planted under supervision to ensure that the clod of earth did not crumble (and for other halachic issues), should be redeemed with a blessing (these are called du-shenati, "two-year" trees; the supervision allows farmers to "gain" an extra orlah year before the trees are transplanted to their groves). Fruit with neta revay sanctity are only those that began developing between 15 Shevat 5781 and 15 Shevat 5782. Fruit that begins to develop after 15 Shevat 5782 is considered a product of the tree's fifth year, and is not sacred. Similarly, if the tree is planted by 15 Av 5779, neta revay fruit will be the fruit that begins developing after 15 Shevat 5782 until Shevat 5783.
Other trees planted in a clod of earth should be redeemed without a blessing since there is a doubt regarding the number of years (the doubt is whether we can rely on the tree's years growing in the nursery and add them to the orlah count). On planting trees with their clod of dirt from nurseries not under halachic supervision, see Hatorah Veha'aretz I, p. 195 §4.

[30] Rambam implies (Hilchot Ma'aser Sheni and Neta Revay 10:10) that neta revay applies to land owned by a non-Jew. Aruch Hashulchan (§294:8) maintains, however, that neta revay does not apply to trees owned by non-Jews. See Chazon Ish (Ma'aserot §7:26), who writes that according to Rambam, a non-Jew's trees would be considered neta revay only if the non-Jew intends that the tree will be neta revay at the beginning of its growth. That is, in a standard situation where the non-Jew is unaware of the concept of neta revay or does not want his fruit to be sacred, the fruit will not be sacred according to the Chazon Ish. See also Minchat Chinuch (mitzvah 247:11) and Kerem Tziyon (Hilchot Orlah 18:15 and n. 29), who write that neta revay exists for trees of a non-Jew, and don't mention that the non-Jew has to specifically have this intention; Neta Hillulim 5:20 and §24. The ruling of Israel's Chief Rabbinate (Betzet Hashanah, p. 54 §10) is to redeem trees in their fourth year that were sold to a non-Jew but without a blessing.

[31] Rambam, ibid., 9:7. This subject is explained at length in Halichot Sadeh 49, pp. 20-26.

[32] Mishnah, Shevi'it 9:9; Rambam, Hilchot Bikkurim 6:4; Shabbat Ha'aretz 8:20 §4 and n. 13. Rabbi Eliahu notes that if the wheat has shemitah sanctity, the challah should not be burned but rather bagged until it spoils on its own.

[33] See Mishnah, Challah 3:5.

[34] Mishnah, Kila'im 7:5; Rambam, Hilchot Kila'im 5:8.

[35] See Rabbi Gidon Pearl, "Kila'im in non-Jews' vineyards," Techumin 7, p. 94 and on; Halichot Sadeh 47, p.7.

[36] Iggerot HaRa'ayah I §316. Rabbi Eliahu rules accordingly.

[37] Rambam, ibid., 1:3.

[38] Ibid., according to the understanding of the Kessef Mishneh, Mahari Kurkus, and Radbaz, ibid.; the Ra'avad, however, maintains that this is forbidden (ibid.).