Locking gardens in the eighth year
Until what date must tree owners allow entry to their gardens or orchards during the eighth year to allow others to harvest the holy fruit?
Foreword
It is true that shemitah year was already over since 1 Tishrei 5783. From this date on all agricultural work of the land formerly forbidden during shemitah is now permitted,[1] yet the laws of shemitah continue to accompany us deep into the eighth year. This is manifest by making sure to avoid purchase sefichin vegetables, observing the laws of kedushat shevi'it with shemitah fruit, and performing bi'ur for shemitah fruit (at the proper time). From the verse "And on the seventh year you shall release it and let it lie fallow and the needy of your nation will eat of it,"[2] the Sages learn that the produce of the seventh year is ownerless, as stated by Rambam (Sefer HaMitzvot Aseh 134) :
That is that He commanded us to render ownerless all that grows from the ground during the sabbatical year and permit the growth of all of our lands to any person. And that is His, may He be blessed, saying, "But in the seventh you shall release it and let it lie fallow."
For this reason, fruit that began to develop (i.e. reached the chanatah stage) during shemitah is ownerless since the determining stage for fruit vis-à-vis shemitah laws is chanatah.[3] As part of performing the mitzvah of hefker, the Sages extrapolate from the verse above that it is forbidden for individuals to fence in their yards and prevent entrance to others. One who does so fails to perform a positive precept, as the Rambam states (Hilchot Shemitah 4:24): "Anyone who locks his vineyard or fences off his field in the Sabbatical year has nullified a positive commandment."[4] In light of this, since fruits in the eighth year still have kedushat shevi'it, the garden owner is supposed to allow entry to passersby to harvest the shemitah fruit.[5]
In the following article, I would like to clarify until when individuals are obligated to allow passersby entry to their garden in the eighth year: until there are no more shemitah fruit on the trees, or from the time he begins to work the ground and plant, when entrance of others can cause damage.
A. Interpretation of the Mishnah
The Mishnah (Shevi'it 9:7) states: "Until when may the poor enter the orchards? Until the second rainfall (reviya sheniya)."[6] The commentaries dispute the intent of this mishnah, as we will discuss below.
- Law relating to matanot aniyim
The accepted explanation among the commentaries is that this is one of the laws of matanot aniyim, gifts of the poor, relevant all years of the shemitah cycle.[7] After the field owner leaves the gifts in the field, the poor may enter the fields and orchards to take their gifts—lekket, shichechah, and pe'ah. The Mishnah essentially limits the time the poor may enter: entry to fields is permissible "until the second rainfall," since after this time, walking around the fields can harm the field owner's crops.[8] While this mishnah appears in tractate Shevi'it, the word "poor" indicates that this mishnah refers to the laws of matanot aniyim that apply all years.[9]
- A law for the eighth year
Some commentaries explain this Mishnah in the context of the eighth year.[10] That is, fruit that began to develop in shemitah and is harvested the following year has kedushat shevi'it. For this reason, the garden owner must grant entrance to his garden and allow others to harvest the fruit. According to this understanding, this mishnah teaches us that until the second rainfall everyone can enter the garden and the garden owner should allow it. After this point, however, the garden owner can fence in his garden. This explanation is based, among other things, on the location of the mishnah in tractate Shevi'it; during shemitah, even a rich person is considered poor with regard to his entitlement to shemitah produce.[11] In his interpretation of the Mishnah, Rambam cites both explanations:
(1) Until when may the poor enter orchards, that is to say, to gather leket, peret, and ollelot during the other years, as is explained at the end of Pe'ah. (2) So too, it is possible to enter gardens the year following the seventh until the second rainfall, since there are still fruits that remain from the seventh year.[12]
However, in his halachic work, he rules following the second explanation: "Until when are the poor permitted to enter the orchards in the eighth year to gather the fruits of the Sabbatical year? Until the second rains descend."[13]
B. Rationale for barring entry
About the approach that supports the second explanation of the mishnah we should ask: what is the justification to prevent entry to passersby to a garden until the second rainfall, if there are still shemitah fruits hanging on the trees—what right does he have to prevent people from accessing fruit that rightly belongs to them? Rabbi Yechiel Michel Epstein explains: "From this time onwards it is time for bi'ur and it is incumbent on orchard owners to perform the mitzvah of bi'ur."[14] He maintains that the heter for garden owners to bar entry to their gardens is due to this being the time for bi'ur for shemitah fruit, when all fruit is no longer on trees. Since no more fruits are on the trees, the garden owner may now prevent entry to others. While this interpretation explains why it is permissible to bar entry, it is difficult to understand since bi'ur time for most shemitah fruits is not around Cheshvah-Kislev, as the Gemara states: "Grapes are eaten until Pesach, olives until Shavuot, dried figs until Chanukah, Dates until Purim."[15] Thus it is more likely that the rationale for allowing the owner to bar entry from the second rainfall and on is that at that point the garden owner begins planting in his fields, and passersby entering could trample and destroy the crops.[16]
In this way, the laws governing the eighth year differ from those governing shemitah, since then there are no new crops growing in the field. Thus, anyone can enter even after the second rainfall.[17] Perhaps we can combine the possible explanations for allowing tree owners to bar entry from others after the second rainfall, as brought by Rabbi Yosef Kurkus (Hilchot Shemitah 7:17): "From this point on one should no longer enter his friends' field since it most likely the shemitah fruit are already gone and since it is harmful [to the land] that people step on it." That is, the rationale of preventing damage to crops growing in the garden is not sufficient to prevent people from entering in order to harvest shemitah fruits; the fruits are ownerless and the garden owner needs to allow them to enter and he can provide an entry that will not damage his crops. For this reason, we can add the rationale that from the time of the second rainfall, not many shemitah fruits are still left on the trees, making it possible for the owner to prevent others from entering.
C. Permission to enter vs. the ownerless status of fruit
Initially, we cited the words of the Torah, "But in the seventh you shall release it and let it lie fallow," from which the Sages learned that since shemitah produce is ownerless and can be claimed by anyone, it is incumbent on garden owners to allow anyone to enter their garden to harvest crops with kedushat shevi'it. On the meaning of hefker, we can infer from Nedarim 42a, which states that if someone vowed to exclude his fellow from benefitting from his property during the shemitah year (in his garden), the former may not enter the said property, but this vow does not apply to fruit which are all hefker and do not belong to the property owner; any overhanging fruit accessible from the public domain is nevertheless permissible for him to harvest. From here, the Rishonim learn that hefker relates only to the fruit, but not to the ground. In this way, the Torah permits entry into another's garden for the purpose of fruit harvest only, while the ownership of the land remains the owner's. As the Ran states (Nedarim 42 s.v. Amar Ula): "The Merciful One only rendered the ground ownerless for the harvest of fruit." That is, the permission to enter is for the purpose of fruit harvest only.[18] However, the trees or field are not ownerless for other purposes.[19]
Following this definition poses a difficulty to Rambam's approach, who ties the mishnah to the eighth year. As we mentioned above, according to Rambam it is permissible to bar entry to the garden after the second rainfall, since this is the time that garden owners plant and entrance can destroy the crops.[20] If so, this poses a difficulty, since at the same time shemitah fruits are hanging on his trees. What right does he have to prevent entry to others, due to a concern that it will ruin his crops if the Torah rendered his property ownerless for the purpose of harvest?
The Chazon Ish asks precisely this question (Shevi'it 15:11):
Since the Merciful One rendered his field ownerless, how does he have the right to sow in it and prevent people from entering there? Why is this not comparable to fencing it and protecting it? … After the second rainfall, if there are still shemitah fruits in his field, they are ownerless, and the Merciful One rendered his field ownerless with the purpose of entering it … so what right does he have to sow there?
This difficulty further hones the discussion on the topic of permit of entrance to another's field when it has shemitah fruit. One the one hand, it is possible that the law of permitting entry for the purpose of harvest stems from the sanctity of the fruit, since the fruit on the trees during the eighth year began to develop during shemitah and still have kedushat shevi'it. It follows that the laws of hefker apply to the fruit, automatically granting entry to others into the garden in order to harvest these fruits. On the other hand, it is possible that the law of hefker does not stem from the fruits' sanctity, but rather is limited to the shemitah year. This means that only during the shemitah year is the land ownerless, but when the eighth year arrives, the land is no longer ownerless even for the purpose of fruit harvest.
- Chazon Ish
The Chazon Ish (ibid.) answers his question and explains Rambam, that the permit to enter another's yard in order to harvest fruit continues into the eighth year as long as fruit is still hanging on the trees. However, before the second rainfall, people may enter from whichever way they desire into the garden. From the time of the second rainfall and on, the garden owner may close all of the openings and leave accessible only one opening that leads to the trees.[21] We can infer from here that the Chazon Ish maintains that the ground is ownerless for the purpose of fruit harvest even during the eighth year, since the permit to enter for fruit harvest is based on the sanctity of the fruit and their ownerless status. As long as shemitah fruits continues to hang from the trees, the owners must allow entry to harvest them.[22]
- Rabbi Yaakov Yisrael and Rabbi Chaim Kanievsky
There is an alternative understanding of the relationship between the permit of entry and the ownerless status of the fruit: the sanctity of the fruit and their ownerless status are independent of the permit to enter the garden for fruit harvest. According to this approach, the permission to enter gardens for fruit harvest applies only during shemitah; the source of this being "But in the seventh you shall release it and let it lie fallow." During the seventh year, one may not act like a landowner, but rather one must allow others entry and access to harvest shemitah fruit. On the other hand, during the eighth year the landowners are not required to render their fields ownerless or even leave an opening for others to harvest the fruit; at this point in time the injunction "you shall release it and let it lie fallow" no longer applies.[23] Proponents of this approach include Rabbi Yaakov Yisrael Kanievsky:
The law of "you shall release it and let it lie fallow" … applies only during the seventh year … just as the Torah forbid taking control of the land for growing purposes, so too the Torah forbade taking control of what the land produces on its own accord. The reason for the seventh year is so that "you will know that the land belongs to the Holy One Blessed be He" … the law that necessitates relinquishing and deeming ownerless is not due to the sanctity of the produce, such as the prohibitions of transaction, spoiling, and the mitzvah of bi'ur. Rather, due to the sanctity of the land, in light of which it is forbidden to take control of it to plant or gather produce in a manner of ownership for that which grew on its own. This prohibition only applies during the seventh year. When the eighth year enters, there is no longer a prohibition of taking control of the land, since there is also no longer the injunction of "you shall release it and let it lie fallow."[24]
This approach is also cited by his son, Rabbi Chaim Kanievsky, who disagrees with the Chazon Ish:
And in my humble opinion, it is pertinent to say that the Torah only deemed the land ownerless during the seventh year itself, as it states in Mechiltah, Mishpatim, ibid., "and during the seventh year [you shall release it and let it lie fallow] etc." So you should not say: Why did the Torah state not ''so that the poor may eat of it'?' I gather [the produce] myself and distribute it to the poor! Rather, the Torah stated "and during the seventh year you shall release it and let it lie fallow, etc."
This is only stated with regard to the seventh year itself, that there is an injunction to release the land and let it lie fallow. That is what referred to in Nedarim: "The land is also ownerless." After the seventh year, however, while the fruit is still ownerless since it follows chanatah, the land is not ownerless.[25]
The above raises a difficulty with the halachah at hand: Why until the second rainfall is it forbidden to fence in one's garden and mandatory to allow entrance for harvest, if during the eighth year the law of permitting entry to others for harvest no longer applies? Rabbi Chaim Kanievsky answers[26] that while the garden owner is supposed to allow entry for harvest into the eighth year, it is not because the laws of shemitah extend into the eighth year. Rather, the court compels people to refrain from "Sodom-like conduct." Since there are ownerless fruits in the yard at a time where the entrance of others does not in any way harm the crops, barring entry is paramount to "Sodom-like conduct," as described in Bava Kama 81b:
If one’s produce was completely [harvested] from the field, but he does not allow people to enter into his field, what do people say about him? "What benefit does so-and-so have [by denying entry into his field?] And what harm are people causing him?" Concerning him, the verse says: Do not be called wicked [by refraining] from being good.
This approach runs counter to that of the Chazon Ish: while the Chazon Ish maintains that it is permissible to enter one's yard to harvest fruit even during the eighth year, Rabbis Yaakov Yisrael and Chaim Kanievsky clearly distinguish between the permit of entry and the laws relating to produce during the eighth year.
D. Obligation to take out fruit
1. Rabbi A.Y. Kook and Rabbi Chaim Kanievsky
As mentioned above, according to Rabbis Yaakov Yisrael and Chaim Kanievsky, after the second rainfall the garden owner is permitted to completely lock the garden. However, this raises the question asked by the Chazon Ish: (1) since there are shemitah fruits still on the trees, and (2) they belong to the entire Jewish People, if so, what gives the garden owner the right to bar entry to people interested in taking produce that rightfully belongs to them? Rabbi Chaim Kanievsky answers that the garden owner is required to take out the fruit from his garden:[27]
"… it is possible for others to demand that he take out the fruit on their behalf. He must do so, since they are ownerless and belong to them."[28]
The approach that the fruits' ownerless status is independent of the permit to enter gardens during the eighth year is mentioned already by Rabbi Kook:
Although they are ownerless due to the obligation of the seventh year, in any case he is not required to allow the poor, or any person interested in taking the seventh-year fruits, to enter his orchard after the seventh year has passed. [As this point] he is allowed to take them out to the public domain so that anyone who wishes may take them.[29]
Rabbi Kook added an explanation in handwriting:
The primary obligation of abandoning the fields and not preventing any person to enter applies specifically during the seventh year. However, the year after the seventh, although the fruits of the seventh year that remain into the next year are ownerless, in any case it seems that we can say that one may take them out to the public domain when the needy come if he has a reason to object to preventing entrance to his orchard.[30]
Rabbi Kook maintains that since the permit of entry does not depend on the fruit's ownerless status, garden owners have the prerogative to lock their gardens and take the fruit outside.
Rabbi Chaim Kanievsky adds that it is even permissible for garden owner interested in planting in his garden before the second rainfall, to close off his garden and block entry in order to prevent damage to the crops:
It is possible that if he would sow in his courtyard even before the second rainfall damages [the crops], he may prevent entry before the second rainfall. This is because the Merciful One only rendered [land] ownerless during the seventh year, not the year after. He can say: "I will take out the fruit to you if you want, but don't come in and spoil my yard."[31]
2. Rabbi Shaul Yisraeli
Rabbi Shaul Yisraeli disagreed with the approach requiring the garden owner to take out fruit to people. He maintained that when the garden owner may suffer any sort of damage due to the entrance of others, he may prevent entry. Furthermore, he does not require garden owners to take out the shemitah fruit for others:
But the year following the seventh there is no right of trespassing, since from the time that this could cause him damage it is forbidden to enter the field. It seems, simply, that in any event, even if the produce spoils on its own, is does not matter, and he is not obligated to take them out to the public domain. (Albeit, in Shabbat Ha'aretz he [=Rabbi Kook] did not write this, but I do not know where this source is from and simply taken, there is no obligation for the owner to do this.)[32]
E. Harvest prohibition during the eighth year
1. Introduction
The Torah forbids four agricultural activities during shemitah—zeri'ah, zemirah, ketzirah, and betzirah; sowing, pruning (grape vines), grain harvest, and grape harvest.[33] The common denominator between to last two is crop harvest (and it is extended to include all crops, not just grains and grapes). Chazal explain that the Torah's intent was not to completely ban harvest, since immediately after prohibiting these activities, the Torah adds, "and the [produce] of the land's sabbatical will be your to eat."[34] As Rambam put it, if one cannot harvest, how will he eat? "And it is impossible to say that the intent of this verse is to completely prohibit grape harvest, since eating [the grapes] was already permitted in the statement ''and the [produce] of the land's sabbatical will be for you to eat."[35] Rather, the Torah intended to forbid harvest only when performed "in the manner of grain harvesters and in the manner of grape harvesters,"[36] that is, gathering crops on a commercial scale. Small-scale harvest for home use, however, is permitted.[37]
2. The difficulty and necessity for the Chazon Ish's approach
The above raises difficulty with the approach of Rabbi Kook and Rabbi Chaim Kanievsky. As mentioned above, they maintain that following the second rainfall the garden owner may lock the garden completely and bar entry to others, despite the fact that there are still shemitah fruit on trees that belong to everyone. However, they maintain that the owner must harvest the fruit and bring them out to the public. This begs the questions: how may the garden owner harvest large quantities of shemitah fruit for other people who cannot enter his garden and harvest on their own, if in doing so the garden owner transgresses the prohibition of fruit harvest "in the manner of grain and grape harvester"?[38]
This difficulty supports the Chazon Ish's approach and contributes to our understanding of his ruling. Again, after the second rainfall it is forbidden to completely bar entry for others to harvest the ownerless fruits. Rather, one opening must be left to allow access to the fruit since the fruit belongs to everyone, as we explained above. Here the Chazon Ish addresses this difficulty, and does not provide the option of harvesting the fruit for others: "fruit of the seventh year that continued into [the eighth] year have the status of seventh-year fruit and one is cautioned against protecting them. Why would the prohibition not apply of "you shall not gather the grapes of your untrimmed vines"?! According to the Chazon Ish, the prohibition of harvest stems from the fruits' shemitah status. That is, their sanctity and the obligation to render them ownerless, harvest should also be prohibited "in the manner of grain and grape harvesters." This is because these activities are an expression of ownership, which is forbidden during shemitah for shemitah produce.[39] Thus, in cases when the laws of shemitah do not apply to fruit, such as when sixth-year fruit enter into the shemitah year,[40] or orlah fruit during shemitah,[41] the prohibition does not apply of "harvesting in the manner of grain and grape harvesters," a prohibition that stems from their status as shemitah produce.[42]
Indeed, the Acharonim agreed that since shemitah laws apply to shemitah fruits during the eighth year, both in terms of their ownerless status and their sanctity, they may not be harvested in the "manner of grain and grape harvesters" in large-scale.[43] Thus, the approach of the Chazon Ish can be more fully understood: it would not be possible to close off the garden, while harvesting the fruit and bringing them out to the public since; the laws of shemitah apply to these fruits, so the owner's harvest would constitute harvesting "in the manner of grain and grape harvesters."[44]
3. The difficulty in the approach of Rabbi Kook and Rabbi Chaim Kanievsky
As stated above, the approach allowing garden owners to lock up their gardens but obligating them to take fruit outside for the public raises the question: how would this be possible in light of the prohibition against large-scale harvest of shemitah produce during the eighth year?[45] This matter requires further investigation.
Conclusion
Until Rosh Chodesh Kislev
The Chazon Ish: The yard should be open for others to harvest fruit.
Rabbi Chaim Kanievsky: If allowing people to enter the yard can harm the yard, the owner may prevent others from entering but must harvest the fruit and bring it outside for public use.
Rosh Chodesh Kislev and on
Chazon Ish: One entrance should be left open to allow others to enter and harvest fruit.
Rabbi Chaim Kanievsky: It is possible to lock the garden completely and take fruit outside for others.
Rabbi Shaul Yisraeli: It is possible to lock the garden, and there is no obligation to take fruit out for others.
[1] See: Ginat Reuven, Shevi'it zemanei sheminit, p. 40, quoting Sefer shemitat karka'ot:"It is possible that there is a mitzvah to tend to the garden immediately after the shemitah to prove that we have only desisted from this until now because of the mitzvah of shemitah. For this reason, on Tzom Gedaliah of the eighth year it is best to perform a melachah that was forbidden during shemitah."
[2] Shemot 23:11.
[3] Rosh Hashanah 12b.
[4] See also: Mechilta DeRabbi Yishmael, Mishpatim Masechta Dechasfa §20.
[5] While individuals are not allowed to close off their fields or orchards to allow others to harvest crops with kedushat shevi'it, it is permissible to gate off the yard, orchard, or private garden if one is concerned that others will harm the trees or disturb family members. See: Mechiltah, ibid. The posekim suggest hanging a sign on the gate with instructions to coordinate harvest with the home owner. See: Rabbi Ben Zion Meir Chai Uziel, Hashemitah, hayovel, umitzvot hakhel, p. 139; Or letzion, Shevi'it 4:4, p. 61; Ma'amar Mordechai, Shevi'it 10:6-7; Chut Shani, Hilchot Shemitah 4:24 citing the Chazon Ish; Mishnat HaGrish, Shevi'it, p. 43 §1; Derech Emunah (Hilchot Shemitah 4:24, Tziyun Hahalachah §297 citing the Chazon Ish; ibid., 7:4, Bi'ur Hahalachah s.v. Bagefanim); Responsa Ba'ohalah shel Torah III §35.
[6] See also: Tosefta (Lieberman), Shevi'it 7:18: מאימתי פורשין משבילין שבשדות עד שתרד רביעה שנייה. For the parameters of reviya sheniya, "second rainfall," see: Ta'anit 6a, where there is a Tannanitic dispute on the matter: Rabbi Meir maintains that this is on 7 Cheshvan, Rabbi Yehudah holds it is 17 Cheshvan, while Rabbi Yossi believes it is 23 Cheshvan.
[7] See: Rivmatz, Shevi'it 9:7, s.v. ad; Rash, ibid., s.v. aniyim; Rosh, ibid., s.v. aniyim; Rambam, Gloss on Mishnah, ibid., first explanation; Rabbi Ovadia Bartenura, ibid., s.v. aniyim; Melechet Shlomo, ibid, s.v. ad; Shenot Eliyahu, ibid., s.v. ad; Tiferet Yisrael ibid. Yachin 49, first explanation; Chasdei David, Shevi'it 7:14, s.v. me'eimatai; Sheyarei Minchah, ibid.; Rabbi Eliyahu Pulda, Shevi'it 9:5, s.v. aniyim, first explanation; Rashas, ibid., s.v. aniyim.
[8] See: Bava Kama 81b; Rambam, Hilchot Nizkei Mamon 5:4; Tur CM §274. On the Shulchan Aruch's omission of this halachah, see the Rema CM §274: "And I do not understand why this author omitted it. Perhaps since it is uncommon, as most instances occur only in a place where Jews own fields and vineyards and this is not common in the exile." On this approach that limits the entrance of the poor to gather their gifts from the second rainfall to prevent damage to the field, we can infer from the words of the Mishnah, Pe'ah 8:1, stating that from certain times entry is permitted, even to those who are not poor, to come and take gifts of the poor that are ownerless: "At what time can any person partake of lekket? … For olives – from the second rainfall." This raises the question: if the reason to bar entry to the poor from the second rainfall is damage to the field, why does the Mishnah in Pe'ah permit entry from this time on to "any person"?! This difficulty is raised briefly by the Tosafot Yom Tov, Shevi'it 9:7, s.v. ad: "And [this case] is not similar to what is expounded on in chapter 8 of Pe'ah, since there the issue is the matter of the permit of any person to take the gifts of the poor." Furthermore, in the Mishnah in Pe'ah, the permit of anyone to enter from the second rainfall applies only to olive groves, but in the Mishnah in Shevi'it, we do not find a distinction between the types of crops. The difficulty is raised by Melechet Shlomo, Shevi'it 7:7, s.v. ad.
[9] See Radbaz, Hilchot Shemitah 7:18.
[10] Rambam, Gloss on the Mishnah, Shevi'it 9:7, second explanation; Rabbi Ovadia of Bartenura, ibid., s.v. aniyim, second explanation; Tiferet Yisrael (ibid. Yachin 49, second explanation; Hilchata Gevira, ibid.); Tosafot Yom Tov, ibid., s.v. ad; Rabbi Yitzchak Isaac Yehudah Yechiel Safrin (Penei Zaken, ibid., s.v. ad; Atzei Eden, ibid.); Rabbi Eliyahu Fulda, Shevi'it 9:5, s.v. aniyim, second explanation; Pnei Moshe, ibid., s.v. ad.
[11] See: Radbaz, Hilchot Shemitah 7:18: "since everyone is considered poor concerning shemitah fruit"; Tiferet Yisrael, Shevi'it 9:7 Yachin §49, 'והא דנקט עניים, אורחא דמלתא נקט'; Derech Emunah, Hilchot Shemitah 7:18 §121. This notion, that the intent of the text "and the needy of your nation will eat with you" is not necessarily the indigent, but rather any person in relation to shemitah fruit, appears in: Ramban, Vayikra 25:7; Tosafot Yom Tov, Shevi'it 9:8, s.v. Rebbi. See also: Responsa Divrei Malkiel III §162, that Rambam quotes the Mishnah, noting that the word aniyim does not necessarily mean "poor."
[12] See note 7 and 10. These two explanations are brought as halachah also by Aruch Hashulchan, Hilchot Shemitah 28:10. See also Radbaz, Hilchot Shemitah 7:18: "and both explanations are true."
[13] Rambam, Hilchot Shemitah 7:18.
[14] Aruch Hashulchan, Hilchot Shemitah 28:10.
[15] Pesachim 53a. See Mikdash David, Shevi'it §20 who pointed this out.
[16] Mikdash David, ibid.; Derech Emunah, Hilchot Shemitah 7:18 §122.
[17] Mikdash David, ibid.
[18] See also: Rashi, Nedarim 42b, s.v. gezirah; Tosafot, Nedarim, ibid., s.v. elah gezirah; Rosh, Nedarim, ibid., s.v. ba'omdin; Ritva (ibid., 14a, Midapei HaRif, s.v. ubashevi'it; published by Mossad Harav Kook, pp. 405-406).
[19] See: Rash, Kila'im 7:4, s.v. Yerushalmi: one who sows his vineyard with annuals (generally constituting kilei hakerem), the grapes are not forbidden "since everything is ownerless and is not considered his. This specifically grapes are not forbidden, but the grape vines that increased by 1/200 are forbidden, since the branches are not ownerless."; Melechet Shlomo, Kilayim 7:5, s.v. ma'aseh; Tosafot Rabbi Akiva Eiger, Kilayim, ibid. §25; Tiferet Yisrael, Kilayim, ibid., §31 and Hilchata Gevirta, Kilayim, ibid.; Ma'amar Mordechai, Shevi'it 10:9: "The trees and plants themselves are not ownerless and therefore no one has the right to take palm branches for sechach for his sukkah from his friend's tree." For further explanation, see Ma'amar Mordechai, ibid., §4.
[20] See above n. 16.
[21] As stated in Derech Emunah, Hilchot Shemitah 7:18 §123. However, see also later on cited in his name, where he disagrees with the Chazon Ish.
[22] See also: Chazon Ish (Shevi'it 11:7, s.v. vayerek; ibid., 21:18, s.v. vehanichnasin; ibid. 3:23, s.v. im). However, in the last source the Chazon Ish deliberates whether fruit that began to develop during shemitah that entered the eighth year are ownerless. However, he concludes: "Afterwards I saw that the law of ownerless status applies also during the eighth year, as mentioned in the Mishnah 9:7: 'Until when may the poor enter orchards, etc., and the Rambam's explanation on the matter of shemitah."
[23] The difficulty in this understanding is the explanation of the verse that it is based on, since there are two verbs in the verse: "תשמטנה ונטשתה". Biblical commentaries explain the verb tishmetenah as referring to working the soil, while venetashtah refers to rendering the holy produce of the seventh year ownerless. In this way, while during the eighth year the prohibitions of working the soil no longer apply, the fruit still has kedushat shevi'it. As the Sifra states (Behar 1:4): "Since the seventh year has exited, even though its fruits [belong] to shemitah, it is permitted to perform labors on the tree itself. However, on behalf of the fruit it is forbidden to do so until 15 Shevat." If so, the permit to enter in order to harvest shemitah fruit even during the eighth year is necessary due to the fruits' sanctity.
[24] Kehilot Ya'akov, Shevi'it 9:2. Compare to an introduction quoting him, Orchot Rabeinu Hakehilot Ya'akov, new ed., II p. 322 §9: "Following shemitah 5734 I was told by my teacher and rabbi … that immediately after the seventh year, the owner of the field claims the fruit of the seventh year on the trees and near his field and trees since they are no longer ownerless, and my teacher and rabbi repeated this several times."
[25] Derech Emunah, Hilchot Shemitah 7:18, Bi'ur Hahalachah, s.v. ve'od.
[26] Ibid.
[27] During the shemitah year, the posekim are divided whether it is permissible for garden owners to harvest shemitah fruit in large quantities and put them outside of the yard, declaring them ownerless, when people do not come in to harvest the fruit and they are rotting on the tree. Rabbi Shlomo Zalman Auerbach, Ma'adanei Eretz, Shevi'it 7:2, the prohibition to harvest in order to distribute to the poor stems from the commercial-scale harvest forbidden for ownerless fruit. However, if the garden owner is not preventing others from entering the garden, and at the same time harvests all of the crops and puts them in a central location, leaving it ownerless, this is permitted—in this way, the garden owner facilitates the crops actually becoming ownerless. In contrast, Rabbi Moshe Kleirs, Torat Ha'aretz I 8:8, s.v. vera'iti, and the Chazon Ish, Shevi'it 15:11, maintain that the very act of harvest by the owner nullifies the ownerless status of the produce, since hefker applies to fruit that is attached to the tree and it is claimed by the one harvesting it. For this reason, they hold that it is forbidden to harvest the produce and bring it out of the garden, since one is thereby nullifying its ownerless status, even though it is again rendered ownerless a second time. See my article on this topic, "Harvest of shemitah fruit from one's garden on the public behalf", Emunat Itecha 134 (Shevat 5782) pp. 26–27 (Heb.).
[28] See n. 25.
[29] Shabbat Ha'aretz 7:18.
[30] Ibid., p. 628, n. 3.
[31] See n. 25.
[32] Chavot Binyamin III §101 p. 542.
[33] Vayikra 25:2–5.
[34] Vayikra 25:6.
[35] Rambam, Gloss on the Mishnah, Shevi'it 8:6.
[36] Torat Kohanim, Parashat Behar 1:3 (beginning): Do not perform grape harvest in the manner of the harvesters; Rambam, Hilchot Shemitah, introduction; ibid., 4:1 and 22; Rambam's Gloss on the Mishnah 8:6.
[37] For the measurement of the quantity, see Sefer Hashemitah, p. 21 n. 12.
[38] Note that Rabbi Yaakov Yisrael Kanievsky (see above C.2) did not mention harvesting the fruit and bringing it out to people. This may be due to his approach elsewhere, Orchot Rabienu Hakehilot Yaakov, see n. 24. In light of this, immediately after the shemitah year the garden owner can immediately claim the fruit on his trees, even when attached, and they are no longer considered ownerless. It naturally follows that there is thus no prohibition of large-scale harvest on this fruit.
[39] Chazon Ish, Shevi'it 17:3.
[40] See: Rambam, Hilchot Shemitah 4:9: "Sixth-year produce that entered the seventh year … even though he gathers them during the seventh year, they are as sixth-year fruit for all purposes"; Sefer Hashemitah, p. 12, n.6; Chazon Ish Shevi'it (10:4, s.v. Hamaharsha; 21:16 s.v. תפו"ז; 22:2, s.v. תפו"ז); Rabbi Shlomo Zalman Auerbach (Ma'adanei Eretz, Shevi'it 4:9; Shulchan Shlomo, Shevi'it, p. 54).
[41] Rabbi Shlomo Zalman Auerbach (Ma'adanei Eretz 3:8; Shulchan Shlomo, Shevi'it, p. 57).
[42] Rashash, Sanhedrin 26a s.v. תד"ה. Note that according to Rabbi Shlomo Zalman Auerbach in Ma'adanei Eretz §2-7, where he bases his innovation to allow grain and grape harvest by a Jew if heter mechirah was performed. After the land is sold, he maintains that the laws of shemitah do not apply to it since it belongs to a non-Jew. He argues that the prohibition of grain and grape harvest stems from the laws of shemitah fruit (its sanctity and ownerless status), but after the land is sold the laws of shemitah do not apply to the produce and therefore there is no longer any prohibition of commercial-scale grain and grape harvest and this may even be performed by a Jew. See the response of Rabbi Yeshayahu Ze'ev Vinograd, Ma'adanei Eretz 2:6–8; Rabbi Shaul Yisraeli, Chavot Binyamin §101.
[43] This is written by Pnei Yehoshua (Rosh Hashanah 9a s.v. vanireh le'aniyut da'atiai; ibid., s.v. בא"ד ור"ל); Minchat Chinuch, Mitzvah 328, s.v. vehineh hadevarim, Mikdash David, Shevi'it §55; Tsofnat Pa'aneach, Hilchot Matanot Aniyim 2:8; Chazon Ish (Shevi'it 3:23, s.v. sham im; §17:1, s.v. sham); Rabbi Shlomo Zalman Auerbach (Ma'adanei Eretz, Shevi'it 4:12; Shulchan Shlomo, Shevi'it p. 54).
[44] Ma'adanei Eretz, Shevi'it 5:25 s.v. ule-inyan katzir.
[45] It is possible to explain this like the Aruch Hashulchan as cited above in §B. He maintains that the permit for garden owners to prevent the entry of others to their garden after the second rainfall is due to this time coinciding with bi'ur time for shemitah fruit, where the fruit no longer is hanging on the trees. Since there are no longer shemitah fruit, the garden owner can bar entry. If so, it is possible since there is not a large amount of shemitah fruit left on the trees, so the garden owner would not be harvesting the fruit "in the manner of grain and grape harvesters," thus it would be permitted.
