Prohibition of transacting with shemitah produce

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When can money assume kedushat shevi'it, what is the prohibition of transacting with shemitah produce, and can we use shemitah produce for mishloach manot? Chapter 9 of the Consumer's Guide to Shemitah.

Rabbi Moshe Bloom

A. Parameters of the transaction prohibition – isur sechorah

It is forbidden to transact with shemitah produce.[1] This is a biblical prohibition.[2]
While the Torah prohibits transacting with shemitah produce,[3] someone who buys this produce for home use and has leftovers may sell the extra produce to neighbors.[4]
The transaction prohibition applies only to the seller[5] and to those buying in order to sell.[6] However, it is permitted to give shemitah fruit to others as a gift.[7]
It is forbidden to purchase shemitah produce from someone selling it in a forbidden fashion, since this places a stumbling block before the seller and aids a transgressor (mesaye'ah beyedei ovrei aveirah).[8]
It is permitted to sell shemitah produce together with non-sacred produce, while the payment is for the non-sacred product. This is called havla'ah.[9]

B. Prohibition of weighing and measuring

Even when selling shemitah produce in a way where there is no prohibition of transaction, it should not be weighed in a precise fashion. Rather, its weight should be estimated.[10]
This prohibition applies also to fruit that is not generally weighed, but sold as individual units.[11]
Chazal enacted a prohibition against weighting and measuring imported produce and produce grown by non-Jews due to marit ayin (appearances).[12]

C. Shemitah money–demei shevi'it

When selling sacred shemitah fruit (even in a permitted manner), its sanctity is duplicated in a sense: the original fruit remains sacred[13] and the money used to purchase it also becomes sacred.[14] The same is true if the sacred shemitah fruit is bartered for non-sacred fruit: the original fruit remains sacred and the non-sacred fruit assumes shemitah sanctity.[15]
Sacred shemitah money, demei shevi'it, may only be used to purchase food products.[16] The money's sanctity is then transferred to the food purchased.[17] If non-food products are accidentally purchased with demei shevi'it, one should take a non-sacred food item and eat and handle it according to the laws of shemitah sanctity.[18]
Shemitah sanctity leaves the money in one of two ways:[19]
1. When used to purchase non-sacred food.
2. When transferring its sanctity to food. This is called chillul (lit., desacrilization). The formula for chillul is as follows:
  כל דמי שביעית או חילופי שביעית הנמצאים ברשותי, יהיו מחוללים על מאכל זה
  "All of the shemitah money or that (money/food) exchanged for shemitah fruit that is in my possession will hereby be desacralized on this food."[20]
Optimally, the chillul should be performed on a food that is equal in value to the shemitah [21] Bedi'avad, it is also possible to perform the chillul onto something worth a perutah (similar to the chillul performed today to redeem ma'aser sheni produce and neta revay fruit).[22]
There are cases where the money never becomes infused with shemitah sanctity (in order of halachic preference):
1. The produce is sold through otzar beit din.[23]
2. Shemitah produce is purchased together with non-sacred items (havla'ah).[24]
3. The transaction is made with a credit card.[25]
4. Payment is made a day in advance.[26]
5. Payment is made by check[27] (optimally post-dated or non-negotiable, with two lines).[28]
6. When purchasing on credit, when payment is made after eating the shemitah fruit[29] or after the ownership of the fruit is transferred to another person.[30]
7. Some add: when purchasing shemitah fruit from non-Jews.[31]
8. Some add: when purchasing on credit, when the payment is made several moments after the purchase, providing that there is a relationship of trust between the buyer and seller (so that the transaction is not conditional upon immediate payment.[32]
Since sacred shemitah produce sold in a prohibited fashion is rarely found in the marketplace, one need not be concerned that money has shemitah sanctity.[33]

D. Paying back debt with shemitah fruit

Just as it is forbidden to perform transactions with shemitah produce, such produce should not be given as payment for a debt.[34] This prohibition relates also to money that became infused with shemitah sanctity, and is relevant even in areas where there is no prohibition of transaction.[35]
Even a payment that isn't a legal debt, but rather a moral debt, should not be repaid with shemitah fruit.[36]
When sending mishlo'ach manot on Purim, it is best that the first mishlo'ach manot given during the day include at least two items that do not contain shemitah sanctity.[37]
Shemitah fruit or sacred money should not be given as wages, since this constitutes repayment of debt.[38]
It is permissible to give workers shemitah fruit as a gift, if this is not included in the work contract. This is even true if workers decide to forego part of their salary as a result.[39]

[1] Rambam 6:1. That is, anything with shemitah sanctity. Regarding transactions with animal fodder, see Kerem Tziyon §15, Gidulei Tziyon §1, who is stringent.

[2] As the Torah states, "But you may eat whatever the land will produce during its Sabbath" (Vayikra 25:6). Chazal understand from here that eating the produce is permissible, but not transacting with it:
Avodah Zarah 62a; Bechorot 12b. Ramban, Sefer Hamitzvot, additions to mitzvah 3, counts as a positive injunction that sacred shemitah fruits are meant for consumption and not for transaction. See Shabbat Ha'aretz 6:1, n. 1; ibid., §2, nn. 16, 22. However, some maintain that this is only a rabbinic prohibition. See Shabbat Ha'aretz, ibid., n. 23.

[3] According to Tosafot, Sukkah 39a, s.v. veleiteiv. See Shabbat Ha'aretz 6:1 §2. There the question discussed is whether the prohibition is the sale for profit, or the fact that these fruit should not be used in any way other than consumption (and the practical differences between the two). Rabbi Kook ibid., §3.3 explains that some are lenient when "one person harvests, while another sells," and allow this even if there is an intent to make profit. Others doubt this; see Shabbat Ha'aretz, ibid.

[4] Mishnah 7:3; Rambam 6:2. See Shabbat Ha'aretz 6:1 §4.

[5] Kapot Temarim, Sukkah 39a. Some disagree and maintain that this prohibition applies even to the buyer. See Shabbat Ha'aretz 6:1 §6 and n. 55.

[6] Tosafot, Avodah Zarah 62a, s.v. nimtzah; Sukkah 39a, s.v. veleiteiv. According to Pe'at Hashulchan §26, Beit Yisrael §4, the prohibition is only if one harvests with the intention to sell (and not buy with the intention to sell). See Shabbat Ha'aretz 6:1 §3–4,6.

[7] Mishnah 8:5; Sukkah 41a; Avodah Zarah 62b. See Shabbat Ha'aretz 6: 11 §2, 10 §5, 15 §3, 8:20 §1–2. Rabbi Eliahu notes that one should not give sacred shemitah fruit to those who will not be careful to handle them properly.

[8] Mishnah, Bechorot 4:8. Some even prohibit receiving shemitah fruit as a gift from such individuals, See Shabbat Ha'aretz 8: 14 §6. About the prohibition to assist sinners and placing a stumbling block before a blind person, see Shabbat Ha'aretz 8: 1 §1–2.

[9] Literally, "swallowed up." Sukkah 39a; Rash 7:3 s.v. yerushalmi; Rashas 7:1 s.v. aval mocher, ha'avtalah 1:6, s.v. ule'inyan keniyatan; Rabbi Kook, Shabbat Ha'aretz 6:1 §3.5, 8:11 §2, 5:13 §1.2; Rabbi Frank, Kerem Tziyon §17, Ga'on Tzvi §1, on buying cucumbers pickled with grape leaves with shemitah sanctity, who permits the transaction since the leaves and their taste are sold through havla'ah with the non-sacred cucumbers.

[10] Mishnah 8:3; Rambam 6:3. Some maintain that the rationale for the prohibition is that there will be apparent that these are sacred shemitah fruit and so people will handle them accordingly. Others maintain that it is a mitzvah to sell shemitah produce inexpensively, so they should not be sold in the standard manners of transaction. The prohibition against weighing and measuring applies to the seller; others hold that it applies also to buyers, see Shabbat Ha'aretz 6:3 §1–2. Someone who knows how to precisely estimate fruit weight may not sell the fruit in this manner: Kerem Tziyon 15, Gidulei Tziyon §2. See Rabbi Kook, Shabbat Ha'aretz 6:4 §2.

[11] Tosafot Yom Tov, Shevi'it 8:3. See also Shabbat Ha'aretz 6:3 §3 that some are lenient. On buying canned goods not through otzar beit din, see Az Nidbero §10:45.

[12] Rambam 6:5. However, if it is apparent (by their shape) that the fruit is imported, it is permitted to weigh it. It also seems that when there is a sign noting that the produce is imported from abroad, we can be lenient.

[13] Mishnah 8:7; Rambam 6:1. For this reason, if the buyer sells these fruits another time, the money also becomes sacred: Kerem Tziyon 16, Gidulei Tziyon §1; Minchat Yitzchak VI §129.

[14] Sukkah 40b; Kiddushin 58a; Avodah Zarah 54b. See Shabbat Ha'aretz 6:6, 7 §1, 8 §1–2. On bills acceptable today, see Shabbat Ha'aretz 8:11 §1,3, n. 18. See Chatam Sofer, YD §134, who writes that paper bills are halachically considered coins, and do not have the halachic status of a shetar (and the laws of interest apply to them); Responsa Oneg Yom Tov §102 disagrees, arguing that paper bills are not considered coins and the status of shetar does apply to them. This means that they cannot be used to redeem a firstborn. See Shabbat Ha'aretz 6:7 §2 on whether shemitah produce purchased after the time of bi'ur (so they are forbidden to derive benefit from) imparts sanctity to money.

[15] Mishnah 8:4; Rambam 6:14. See also Shabbat Ha'aretz, ibid., §1–2. On the possibility of bartering with shemitah fruit, Rabbi Kook is lenient: Shabbat Ha'aretz 8:20 §5.4. This is the opinion of the majority of the posekim: Shabbat Ha'aretz 6:10 §10, 14 §1–2.

[16] Mishnah 8:8; Rambam 6:9–11. According to the Ramban and Ritva, Avodah Zarah 62a, s.v. nimtzah, this is a biblical obligation. Tosafot, ibid., s.v. nimtzah, implies that it is rabbinic. See Shabbat Ha'aretz 6: 10 §6.

[17] The laws of bi'ur also apply to this food: Mishnah 7:1; Rambam 7:7. See also Shabbat Ha'aretz, ibid., §1–3. See also Chapter 25 §C.8. There is a difference between shemitah produce and shemitah money: it is permissible to use shemitah produce for fuel, cream, and paint, while shemitah money may not be used to purchase fruit that will be used for these purposes; it is only permitted to use it to buy produce that will be eaten. See Sefer Hashemitah, pp. 38–39; Shabbat Ha'aretz 5:8 §1, 6:10 §6 and nn. 25–26.

[18] Rambam 6:10. See also Shabbat Ha'aretz 6:9,10 §6.2. According to Rabbi Kook, ibid., 6:10 §7, if possible, one can force the seller to void the sale. However, Aruch Laner, Sukkah 39a, s.v. ma'ot, doesn’t deem it necessary to do so.

[19] Rambam 6:8. See Shabbat Ha'aretz 6:8 §1, 6:10 §11. Some hold that it is permissible to purchase shemitah produce with sacred shemitah money, even though the money does not thereafter lose its sacred status—since the produce was previously sacred. When purchasing a non-food item, some maintain that this is not sufficient to desacralize the money: Ramban and Ritva, Avodah Zarah 62b, s.v. nimtzah; Minchat Yitzchak VI §129, s.v. vehineh. According to the Chazon Ish §13:13, non-food items do desacralize the money if one clearly states that he wants the sanctity to transfer from the money to the item purchased. See Shabbat Ha'aretz 6:10 §6.2.

Sefer Hashemitah, p. 40 §11, argues that it is possible to transfer the sanctity of shemitah money onto non-sacred money. Rabbi Eliahu, however, notes that the sanctity of shemitah money can only be transferred to money by purchasing food, not by chillul.

[20] Yeshu'ot Malko, YD §54. On the question of whether it is possible for one person to perform chillul on another person's sacred shemitah money, see Shabbat Ha'aretz 6:10 §7.2.

[21] Mishnah 8:5; Rambam 6:9–11. Optimally, the food should be of equivalent value: Minchat Yitzchak VI §129. See Shabbat Ha'aretz 6:8 §2 and n. 6.

[22] According to Rashas, 9:8 s.v. le'inyan keniyatam. See also Shabbat Ha'aretz 6:8 §2 and n. 7. Rabbi Eliahu rules that one should rely on this leniency only in extremely extenuating circumstances.

[23] Since then the payment is a repayment for expenses, not the price of the fruit. Note that today the price of otzar beit din produce is comparable to that of regular produce, despite the fact that the money is for reimbursing expenses only. The reason for this is that the guidelines given by the beit din for cultivating the trees, the costs of production, distribution, and marketing are much greater than the costs for regular produce.

[24] Sukkah 39a; Rambam 8:11. See also Shabbat Ha'aretz 8:11 §2. See n. 9 above.

[25] Since nothing tangible changed hands onto which sanctity can be transmitted to; this is the ruling of Rabbi Eliahu.

[26] Az Nidberu X §44. See Shabbat Ha'aretz 8:11, n. 18.

[27] Az Nidberu, ibid., IV §64, adding that a bank check is equivalent to a bill, so shemitah sanctity can be transferred to it.

[28] Guidelines of Rabbi Eliahu, so that the check will be considered a promissory note and not negotiable money.

[29] Avodah Zarah 62b; Rashi and Tosafot, ibid., s.v. ye'ot. This is also the opinion of Rabbi Kook, Shabbat Ha'aretz 8:20 §5.1, 6:10 §9.

[30] Tosafot, ibid., quoting Rabbi Elchanan. See also Shabbat Ha'aretz 8:20 §5.2 and n. 17.

[31] Maharit end of I §43, s.v. ve'odt; Minchat Chinuch, end of mitzvah 329. While they maintain that produce grown by non-Jews in the Land of Israel has shemitah sanctity, they believe it is permitted to buy such produce from them in the regular manner. This is because the money only assumes shemitah sanctity upon receipt by the seller. Since in this case the seller is a non-Jew, the coins would not become sacred whatsoever. Others disagree: Rashas (9:6) and Shelah (Sha'ar Ha'otiyot, letter kuf, p. 138) maintain that the money would assume sanctity. In this case, there is a concern that the money would reach a Jew, who would be unaware of the money's sacred status. Furthermore, it would be problematic for non-Jews to have sacred money in their possession that they do not know how to handle properly. See Shabbat Ha'aretz 8:11 §3.

[32] Chazon Ish 10:13, s.v. vehacha, bemah shekatuv debehakafah. See Shabbat Ha'aretz 8:20 §5.2.

[33] Since it is possible to rely on the majority (batar rubah azlinan), and most agricultural produce that is sold is sold either as part of otzar beit din or as heter mechirah produce; Chazon Ish §10:17, s.v. bemah shekatuv. See also Minchat Yitzvchak, ibid., s.v. vehine kol hanal; Shabbat Ha'aretz 6:7 §3. Rabbi Eliahu notes that whoever rejects the validity of heter mechirah should take precautions with regard to sacred shemitah money.

[34] Mishnah 8:4; Rambam 6:10. See also Shabbat Ha'aretz 6:10 §§1,5. Beit Ridbaz §7:10 s.v. demei shevi'it, writes that it is possible to be lenient with a debt created as a result of purchasing shemitah fruit. See Shabbat Ha'aretz 8:20 §5.4.

[35] Tosafot Anshei Shem, Shevi'it end of 8:4, for instance when it is less than the price of three meals According to most posekim, the prohibition against paying debt is biblical; the Chazon Ish maintains that it is rabbinic. See Shabbat Ha'aretz 6:10 §1.

[36] Such as if one's friend did one a favor for which he did not expect repayment, but one feels a moral obligation to do so: Mishnat Yosef I §27:3, on Rambam 6:10. See also Tosefta Kepeshutah, Pe'ah 4:16, p. 189. Some are lenient on such debts: Hilchot Shevi'it §7, Kise David §65. See also Shabbat Ha'aretz 6:10 §2–5.
Someone who generally provides his Jewish or non-Jewish employees with food (such as providing lunch every day as part of their work contract, katzatz mezonot lapo'el) it is possible to give them shemitah fruit, since they are considered part of the members of his household who he is responsible to feed. Rambam 10:13; Pe'at HaShulchan §24:58. This is also the opinion of Rabbi Kook, Shabbat Ha'aretz 5:13 §4, 6:2 §3 n. 22. Mahari Kurkus (5:13) maintains that this is forbidden for a Jewish employee but allowed only for a non-Jewish employee. See Shabbat Ha'aretz 5:13 §4 and n. 34–35.

[37] See Mishnat Yosef I §27, that mitzvot should not be performed with shemitah fruit, just as bird offerings of zavim may not be purchased with shemitah money (see Mishnah 8:8). Furthermore, he writes that one may not reciprocate with mishlo'ach manot containing shemitah fruit, due to the prohibition of paying a debt with this fruit. Rabbi Eliahu argues, however, that while one should not give the first mishlo'ach manot from shemitah fruit, it is permitted to reciprocate with mishlo'ach manot containing such fruit. This is because reciprocation is not actually repaying a debt, but is rather done for politeness' sake. See Shabbat Ha'aretz 6:10 §5 and n. 22.