Laws of shevi'it during the eighth year

Shemitah laws relevant to the eighth year: shemitah sanctity, hefker, bi'ur terumot and ma'aserot. If I pick fruits or vegetables at the beginning of the eighth year, can I eat them? Chapter 27 of the Consumer's Guide to Shemitah

Rabbi Moshe Bloom

Basic Laws

1. Fruits and vegetables that belong to the shemitah year but are harvested in the eighth year should be handled as having kedushat shevi'it even during the eighth year.

This is relevant for several types of plants:

a. Fruits: The most prevalent is citruses, avocado, olives, and grapes, which are      most often harvested during the eighth year.
b. Herbs
c. Vegetables in a clod of dirt or planted by a non-Jew in a jew's land in a        hothouse[1] or vegetables planted in the olei Mitzrayim territory, where the land was not sold through heter mechirah.

2. The prohibition to perform agricultural activities on behave of shemitah produce also applies during the eighth year. It is forbidden to such activities to encourage the growth of shemitah produce, only if they are done in the fruit itself; if done around the fruit or in the tree – they are allowed, for example: removing thorns, fertilizing the spraying and more[2]
   It is permitted to perform actions to protect the fruit, even if done in the fruit itself.[3]
3. During the eighth year it is permissible to perform any agricultural activity on behalf of the trees, even if the (shemitah) fruit will benefit from them as well.[4]
4. Shemitah produce is ownerless, and it is forbidden to prevent people from going into one's garden or orchard to pick the fruit. This permission of entrance applies also during the eighth year until the second rainfall, which falls out between 23 Heshvan and Rosh Chodesh Kislev.[5]
5. After Rosh Chodesh Kislev, it is permissible to lock the fence and perform the mitzvah of hefker by bringing the fruit outside of the fence.[6]

Fruit during the eighth year

1. The determining stage of growth for fruit vis-à-vis shemitah is chanatah, the beginning of the fruit's development. Fruits that reach this stage before Rosh Hashanah of the eighth year have kedushat shevi'it.
2. Bi'ur time for most types of fruits takes place during the eighth year. The bi'ur schedule is available here.
3. See the kedushat shevi'it schedule for times when produce is no longer subject to shemitah laws, here.

Vegetables during the eighth year

1. Vegetables harvested during the shemitah year have kedushat shevi'it mide'oraita, even if eaten during the eighth year.[7] Vegetables harvested during the eighth year that grew mostly during the shemitah year have kedushat shevi'it miderabanan.[8]
2. When certain vegetables were certainly harvested during the shemitah year in places where the sefichin prohibition applies, eating them is forbidden at any time.[9]
3. The sefichin prohibition applies also to the beginning of the eighth year. In some cases, it is forbidden to eat vegetables harvested then.[10]
4. Vegetables (here: peirot adamah, and excluding leafy vegetables) known to have been harvested during the eighth year, or when the date of their harvest is unknown, are forbidden to be eaten until the first of the following dates:[11]
   a. When new vegetables of the same type grow first in the place with earliest harvest time.[12] For vegetables that grow quickly and have a short shelf life, this time is three days.[13]
   b. When the major of growth of the same type of vegetable occurs during the eighth year. This major growth must be that of the vegetable itself; it is not necessary that most of the parent plant reaches the majority of its growth.[14]
   c. Chanukah of the eighth year.[15]
5.  For vegetables with a long shelf life (such as carrots, onions, and potatoes), one should be stringent and discover whether vegetables appearing on the market are those that have grown most in, and been harvested during, the eighth year. In practice, one should consult a halachic authority to ascertain when such vegetables are available in the marketplace.[16]
6. The determining stage of growth for grains and lentils, relevant to both the sefichin prohibition and kedushat shevi'it, is one-third of their growth (onat hama'aserot).[17] In situations of doubt, their status follows that of vegetables (see §4 above).[18]
7. Vegetables that were sown during the shemitah year in a forbidden fashion and harvested during the eighth year may be eaten according to the time when sefichin are permitted.[19]
8. The schedule for when various types of sefichin are permitted can be found in Appendix C.
9. If vegetables were grown on land sold to a non-Jew through heter mechirah, the opinions that permit all these vegetables immediately can be relied on—even by those who do not rely on heter mechirah during the shemitah year. [20] This is true for all types of vegetables, except onions and garlic.[21]

A.    Terumot and ma'aserot during the eighth year

1. Fruits that grew on land not sold to a non-Jew through heter mechirah and reached their onat ma'aserot (lit. "ma'aser season") after commencement of the eighth year but before 15 Shevat, are subject to terumot and ma'aserot. These should be separated without a blessing.[22] This time is identical to that when the fruit assumes kedushat shevi'it during the shemitah [23] Ma'aser sheni should be tithed from this fruit.[24]
2. Vegetables that grew on land not sold to a non-Jew, even if they have kedushat shevi'it, subject to terumot and ma'aserot, in the following situation: when the sefichin prohibition does not apply to them (e.g. vegetables planted in a clod of soil, or in hothouses, or by a non-Jew, or in the olei Mitzrayim territory) and they are harvested in the eighth year, but before it is clear whether the majority of their growth took place during the eighth year.[25]
3. Land is sold through heter mechirah for two years. The Chief Rabbinate buys back all of the plots of land from the non-Jew during Tishrei following the shemitah That is, there are several days during the eighth year when land is still owned by non-Jews. For this reason, agricultural produce that reaches its onat ma'aserot before this time[26] should have terumot and ma'aserot separated without a blessing.[27] Ma'aser rishon should be given to a levi according to the relative amount of the produce that grew when in Jewish ownership.[28] In areas where terumot and ma'aserot are separated throughout the non-shemitah years with a blessing (most of Israel), one should ascertain the exact date when the land was sold back, to know from what date the blessing on the separation of terumot and ma'aserot should be said.[29]

[1]  While this should be avoided, since it is an agricultural act being performed on a Jew's land, in any event the sefichin prohibition would not apply.

[2] Torat Kohanim (Behar, 1:4): " 'But in the seventh year the land shall have a Sabbath of complete rest.'  Since the seventh year is over, even though the fruit still belongs to the seventh year, it is permissible to perform melachot on behalf of the trees. [On behalf of] fruit, however, it is forbidden until 15 Shevat."
Mishnah (Shevi'it 2:5): "Unripe figs of the sixth year which have [remained on the tree] until the seventh year, or of the seventh year which have remained on the tree until the eighth year, they may not oil them or pierce them. … Rabbi Shimon permitted in connection with the tree, because he is permitted to do all work for the tree." Rambam (Hilchot Shevi'it 3:9) cites the first opinion.
Oiling and piercing unripe figs are actions done directly to the fruit, which hastens their ripening process. What do these actions involve?

Bartenura: Oiling the fig or piercing the fig and inserting oil to hasten it ripening process, or piercing them to allow rain water to enter, thereby accelerating their ripening process.
The Halachic-Agricultural Encyclopedia: Piercing the fig to ease entry for the fig wasp, which fertilizes the fig.
In any event, the acts of piercing and oiling enhances the figs and is considered avruyei peira, which is forbidden even during the eighth year for shemitah figs.

The Chazon Ish (Shevi'it 3:18) forbids actions only done to the fruit itself, such as oiling and piercing, but allowed other melachot derabanan for avruyei peira, such as fertilizing and weeding: "It is possible that the Tanna kama (fist Sage) only forbid work on the fruit itself."
Similarly, Rabbi Shlomo Zalman Auerbach (Ma'adanei Eretz 6:11 s.v. ve'od) writes that it is permissible to perform melachot for the tree that will enhance the fruit, as stated by Torat Kohanim, following the opinion of Rabbi Shimon in the Mishnah. See Shabbat Ha'aretz 3:10 §2, n. 12, that some forbid melachot avruyei peira that are not performed on the fruit

[3] The Chazon Ish permits such acts of ukmei peira even during the shemitah year itself.  The novelty here is according to Rabbi Kook, who forbids ukmei peira during shemitah. Rabbi Kook (Shabbat Ha'aretz 1:5 §20 and n,104, citing the Yerushalmi, Shevi'it 2:2 "one [may] remove its thorns") permits removing thorns of a tree that can damage the fruit during the eighth year, but forbids this during shemitah. This is a classic case of an act that is ukmei peira performed to benefit the fruit, that is not done to the fruit itself. It seems that Rabbi Kook would also permit a melachah leukmei peira done on the fruit itself during the eighth year.

[4] This includes melachot that enhance the tree (avruyei ilana) and not only to maintain and keep it alive (ukmei ilana), the latter being permitted even during shemitah.
Tosefta (3:4): "Olives of the sixth year that entered the seventh year: one may remove rocks from their place, fill cracks in the ground with dirt, and construct circular ditches around the bases pf grapevines from one to another. Moreover, even for olives of the seventh year that enter the eighth year it is permitted to do so." See also Torat Kohanim 1:4, Rabbi Shimon in the Mishnah (Shevi'it 2:5). See Kerem Zion (Shevi'it, Rosenthal 5740, 1:9, n. 13) that some permit melachot performed on behalf of the fruit, while others forbid it, while melachot that benefit only the tree are permitted by all. However, see the Mishnah Rishonah (cited by Kerem Zion), which forbids melachot as long as there are fruits on the tree—even if one only intends to benefit the tree "since people might say that he is working on behalf of the fruit." This is all the more so when one intends the act to also benefit the fruit. See also Shabbat Ha'aretz 3:10 n. 10.

[5]The Mishnah (Shevi'it 9:7) states: "Until when can the poor enter orchards? Until the first rainfall." Rambam explains (Hilchot Shemitah 7:18) that this means during the eighth year, when can the poor still enter orchards to gather shemitah fruit.
Rivmatz (Rabbi Yitzchak ben Malkitzedek) writes that after the second rainfall, the entrance of the poor will be harmful to the field, so it is permitted to prevent them from entering.
Note that the Rash understands this Mishnah as referring to leket, shichechah and peah during non-shemitah years. Rabbi Kook explains that the Rash believes that it is permissible to prevent entry from Rosh Hashanah of the eighth year, but at that time shemitah fruit should be taken out of the gates and available for all. According to this view, the obligation to render the fields and orchards ownerless and the prohibition of preventing entry to others applies to the shemitah year only, and not to the eighth year.See also Shabbat Ha'aretz 7,18.

[6] The owner needs to take out the fruits because they still have sanctity and are halachically considered hefker.

[7].         See Chapters 3 §B.1d and 5 §C.1, 6.

[8].           Mide'oraita, harvest time for vegetables determines their kedushat shevi'it status (so they would not have kedushat shevi'it if harvested in the eighth year). Chazal, however, instituted that vegetables have kedushat shevi'it if the majority of their growth occurred during the shemitah year: Rash (6:4); Tosafot Anshei Shem 6:4, s.v. misheya'aseh on Pe'at Hashulchan §22:6; Chazon Ish §9:13. This is also implied by Rabbi Kook, Shabbat Ha'aretz 4:6 §1 n. 7; 13 §§2–3; 7 §§1, 3; 8 §7.

[9].         Chazon Ish §9:13, s.v. veha; Shabbat Ha'aretz 4:6 §2, n. 13. After Chanukah of the eighth year, vegetables harvested during shemitah are permitted by some; see Shabbat Ha'aretz, ibid., n. 11 and 4:7, n. 20.

[10].        Rambam 4:5. Pe'at Hashulchan §22:9 argues that the sefichin prohibition applying to crops harvested in the eighth year is a special stringency of Chazal, since in principle, the status of vegetables should follow harvest time. It is in dispute whether sefichin apply: only to vegetables that finished growing during shemitah; to vegetables for which most of their growth occurred during shemitah; or even to those that grew only somewhat during shemitah; see Shabbat Ha'aretz 4:6 §1.1, 12 §3, 13 §3. See also Rabbi Azriel Ariel, Emunat Itecha 1, 5755.

[11].        The distinction between yerakot, generally rendered as vegetables (but here meaning leafy vegetables), and peirot adamah, lit. "produce of the ground," comes from Rambam 4:7, who distinguishes between "she'ar peirot" (other produce) and "yerakot" (lit. "greens"). This distinction, made by Rambam, is discussed by the following: Tzitz Eliezer XII §61:2; Kerem Tziyon 11:9. See also Shabbat Ha'aretz, ibid., 4:7 n. 25. The linguistic source of this distinction is the Mishnah, Berachot 6:1 (there a distinction is drawn between "peirot ha'aretz" "produce from the ground," and "yerakot," "greens").

[12].         That is, the day the first vegetables that were sown after Rosh Hashanah (in Israel) grow. Based on Mishnah 6:4. When it is unclear if the vegetables were harvested in the seventh or eighth year, the rationale for the heter is as follows: at this stage permitted vegetables are available in the market, so we assume that all vegetables are permitted. For vegetables known to have been harvested during the eighth year, we say that the "forbidden" part of the vegetable (that grew during shemitah) is nullified within the majority of the vegetable that grew during the eighth year; see Rash (6:4, s.v. mishe-ya'aseh) and Shabbat Ha'aretz 4:7 §2.

[13].        The source of the heter for the vegetables is an opinion that allows harvesting of vegetables immediately after the shemitah year: Mishnah 6:4; Rambam 4:7. Some maintain that this heter was given because of vegetables that grow quickly in the Land of Israel; others suppose that it reflects the possibility of importing vegetables from abroad; see Shabbat Ha'aretz 4:7 n. 4 and §5.

[14].        The support for this heter is that the prohibition can be nullified by the majority, not because most of its growth occurred during the eighth year. See Shabbat Ha'aretz 4:7 §2.2, 21 §2. For most vegetables, there is no need for proof that a specific vegetable achieved most of its growth during the eighth year. It is sufficient that vegetables of the same species grow during the eighth year more than they grew during the shemitah year. If this is the case, we can assume that this is true everywhere for this species—even in other regions.

[15].        Rambam 4:6. According to Ra'avad (gloss, ibid.), sefichin are not permitted from Chanukah on, but only when most of the growth occurs during the eighth year, as noted in §4.b above. See Shabbat Ha'aretz, 4:6 §2; Chazon Ish §4:4 s.v. vele'inyan. Pe'at Hashulchan (§22:9) maintains that Chanukah only permits in doubtful cases of vegetables.

[16].        Rashas (9:1, s.v. od ra'iti) writes that vegetables that grow slowly and have a long shelf life, such as garlic, are not permitted immediately only after most of the vegetable was grown on the eighth year. Rabbi Kook (Shabbat Ha'aretz 4:7 §5) implies that the other commentaries disagree with this opinion, and even these vegetables are permitted immediately. See Mishnah 5:5 about luf (luf is identified by most scholars as Colocasia esculenta, a root vegetable, while by Rambam, in later writings, as a type of onion: Zohar Amar (2015), Flora and Fauna in Maimonides' Teachings [Heb.], Kfar Darom. On the halachic distinction between luf and other vegetables, see Shabbat Ha'aretz 4:7 §5.3, 8 §§1,3.

[17].        Rambam 4:13; Rash 9:1, s.v. kol hasefichin; Shabbat Ha'aretz 4:9 §2.

[18].        Yeshu'at Moshe, §12:5; Shabbat Ha'aretz 4:7, n. 36.

[19].        Rambam 4:15. According to Ra'avad (gloss, ibid.), these vegetables will never be permitted. See Shabbat Ha'aretz 4:15 §2. On the prohibition of ne'evad, see Chapter 8.

[20].        Heter mechirah is similar to the heter of importing vegetables from outside of Israel. See Rabbi Kook (Shabbat Ha'aretz 4:13 §3 and n. 11).

[21].        Shabbat Ha'aretz 4:7 §5.2.

[22].        See Shabbat Ha'aretz 4:13 §1 and n. 3. There is a dispute whether this produce has the same status as shemitah produce (with kedushat shevi'it and exempt from terumot and ma'aserot), or eighth-year produce (no sanctity and subject to terumot and ma'aserot). In practice, out of doubt, we separate terumot and ma'aserot without a blessing.

              Rash (Torat Kohanim, Behar 1:4) maintains that fruits for which chanatah occurs between Rosh Hashanah and 15 Shevat during the eighth year have kedushat shevi'it (and are exempt from the terumot and ma'aserot obligations). Rabbi Chaim Berliner (qtd. in Sefer Hashemitah, p. 10, n. 3) maintains that we should be stringent due to doubt. See also Rabbi Kook (Mishpat Kohen §66, s.v. et), who rules that land should be sold to a non-Jew for the entire duration of the shemitah year through 15 Shevat of the eighth year. Rabbi Auerbach (Ma'adanei Eretz §1:11, s.v. ulam, gam) and Rabbi Yisraeli (Chavot Binyamin I §9:7), however, hold that it is sufficient to sell the land back to its Jewish owners by Rosh Hashanah of the eighth year. In light of the latter opinions, one should separate terumot and ma'aserot from such produce without a blessing.

[23].        The determining stage of growth vis-à-vis terumot and ma'aserot is identical to the stage of growth that determines the presence of kedushat shevi'it.

[24].        The first year of the shemitah cycle is a ma'aser sheni year. Chazon Ish (§9:18, s.v. יו"ד) rules that ma'aser sheni should be separated. Others maintain that one should separate both ma'aser sheni and ma'aser ani out of doubt; see Chapter 15, n. 11.

[25].        Rabbi Kook, Shabbat Ha'aretz 4:8 §7, based on Tosefta 4:8. Rabbi Eliahu holds that one should not say a blessing on this separation. Regarding kedushat shevi'it with these crops, see Chapter 4.

[26].        The determining stage of growth that obligates crops in terumot and ma'aserot is called onat hama'aserot, ma'aser season. Vegetables – harvest; fruit – chanatah; legumes and grain – a third of their growth; see Chapter 5.

[27].        For the status of produce that reaches onat hama'aserot while belonging to a non-Jew, see Rambam, Terumot 1:12–13; Minchat Shlomo §51:21; see Chapter 10 §C.2b.

[28].        Rambam, Terumot 1:12; Shulchan Aruch, YD §331:5.

[29].         A yisrael who buys land from a non-Jew with produce that has not yet reached onat hama'aserot, should separate terumot and ma'aserot from the produce. In this case, he is obligated to give a levi all of the ma'aser rishon: Rambam, ibid., Shulchan Aruch, ibid. Rambam (Terumot 1:14) and Shulchan Aruch (ibid., §331:7) add that if the gemar melachah is performed by a non-Jewish worker, the produce is completely exempt from terumot and ma'aserot.