Court Says Shmittah “Heter Mechirah” Land Sale Legally Invalid


israel1In a decision handed down by the Petach Tikva District Court this past week, the judges stated, “The sale of land shortly before the Shmittah year is done for only one reason: to fulfill the mitzvah of Shmittah. It should not be concluded from a sale for this purpose that the seller lost all of his rights from any standpoint.” Gedolei Yisroel already declared that the Heter Mechirah used nowadays is wholly invalid and cannot be taken seriously. Now, around Tu BeShevat of the eighth year, a secular court has revealed the Heter Mechirah also lacks a legal foundation.

The court case addresses leasers in possession of Israel Land Authority property whom the Authority sued for illegal usage of the land during the Shmittah year. The leasers claimed that the Land Authority has no claim against them since the Authority sold the land to a non-Jew, so therefore it was not the landowner.

The court, however, rejected the claim, saying that the sale does not detract from the seller’s rights in any way and is based on a “legal fiction.” Therefore the Authority is the legal owner of the land.

Before a previous Shmittah 15 years ago, national-religious figures presented a proposal “to improve the sale and strengthen its validity” by enacting a Shmittah law, which they claimed would prevent its validity from being questioned. But this week’s court ruling shows that the use of the Heter Mechirah is nothing more than a “legal fiction” designed to “fulfill the mitzvah.” The upshot is that it actually destroys the mitzvah, since the sellers retain full ownership.

The decision lends weight to Jews who wholly disregard the so-called sale, citing halachic rulings like that of the Chazon Ish zt”l, who more than 50 years ago offered various reasons for dismissing it including “because in their hearts people clearly sense it is not a genuine acquisition” (see end of Siman 27).

This is also the reason why Maran HaRav Yosef Shalom Eliashiv shlita holds that the sale of chometz by a secular Jew should not be relied on unless the arrangement has legal backing. HaRav Eliashiv has devoted considerable effort over the past few years to ensure that chometz sales and business arrangements that involve issues of interest are done with legally enforceable contracts.

 {Yechiel Sever-Deiah veDibur/ Newscenter}


  1. Now all those people who scream dina dimalchusa (and the with their twisted heads say it fully applies in ey) and happen to be the same people who trust the heter michira lichatchila, what will they do now?

  2. Learn the Sugya better Mr. Sever before you write an article on it. Instead of writing “Gedolei Yisroel” it’s “some Gedolei Yisrael”, Forbid heter mechira and others such as Rav Shlomo Zalman and Rav Ovadia ect. Permit it

  3. R. Shlomo Zalman writes that it is technically possible to do, but its pretty hard to do it right, which is pretty much what we see from this story.