Sending Shemitta Fruits as Mishloach Manot
Translated by David Silverberg
Tosafot (Sukka 39a) write,
There are innumerable laws and prohibitions applicable to shemitta fruits that require treatment of kedushat shevi'it (the sanctity of shemitta)."
It is not surprising, then, that Rav Yaakov Betzalel Zolty zt"l, in his work, "Mishnat Yabetz" (Mo'adim, 80), forbids sending such fruits as mishlo'ach manot on Purim. His reasoning behind this ruling is sound and well based: the gemara (Avoda Zara 62a) prohibits paying workers with shemitta fruits. The gemara explains that paying a debt with these fruits violates the Torah's prohibition against commercial activity with produce grown during the shemitta year. Likewise, Rav Zolty argues, delivering mishlo'ach manot resembles payment of an debt insofar as Chazal instituted that we each give these goods to one another. Thus, sending shemitta fruits as mishlo'ach manot falls under the category of forbidden commerce with these sacred fruits.
Although we certainly do not intend to dispute this ruling, there is room to debate this conclusion and call into question several points relevant thereto.
- The Prohibition Applies to Purely Monetary Debts
The prohibition against commerce with shemitta produce, including payment of debts therewith, applies only when the basis of the debt is a monetary one, similar to the gemara's situation regarding workers' salaries. Eliminating a debt amounts to eliminating a monetary obligation that brings with it immediate financial gain that renders the transaction commercial activity. The institution of mishlo'ach manot, however, does not necessarily introduce an inherently monetary debt to others, and the fulfillment of this mitzva thus cannot be considered the elimination of a debit. Although other obligations such as those given to kohanim and some mandatory charities do feature this quality of a full-fledged debt, we have no compelling reason to superimpose this phenomenon onto other mitzvot. We should be particularly hesitant to do so regarding mishlo'ach manot, the basis of which is not inherently financial. The obligation binds us only to Chazal's enactment, not to any given individual. Therefore, delivering mishlo'ach manot would perhaps not amount to the payment of a debt or commerce.
B. Limitations on the Prohibition Against Commerce
According to Tosafot (in several places) and other Rishonim, the prohibition against commercial activity with shemitta produce applies only to a certain form of commerce; not every transaction becomes automatically outlawed. Consider the following examples:
- Rashi (Sukka 30a) defines the prohibition as "hiding [the fruits] until after the seventh year and making a profit." It appears that to violate this prohibition one must hide his fruits until after the time when remaining fruits of that species must be destroyed ("bi'ur") and, secondly, make a profit from that produce.
- Tosafot (Sukka, ibid.) raise the possibility of identifying the prohibition as purchasing the fruits at a low price and selling them at a higher rate. Thus, a sale must carry a strictly business-type quality in order to fall under the Torah's prohibition.
- The Rambam (Hilkhot Shemitta Ve-yovel, beginning of chapter 6) allows selling small quantities of shemitta produce; the ban against commercial activity applies only to wholesale transactions. This position may also emerge from the formulation of Tosafot (Avoda Zara 62).
In light of these limitations, we must question the aforementioned extension of the prohibition to the payment of debts. If we restrict the definition of "commerce" in the context of shemitta to bona fide business transactions, such as interests in profitable gain, wholesale dealings, etc., we should presumably exclude the payment of debts from the prohibitions of shemitta.
I presented this question to the Rosh Yeshiva, Rav Lichtenstein shlit"a. He suggested a distinction between a transaction by which the profit comes about directly from the fruits - such as payment of a debt - and a sale in which the fruits serve merely as the object to create a price gap. The profit emerges directly from the newly created imbalance, rather than from the fruits themselves.
We may, however, suggest yet another solution. Although the prohibition applies only to business transactions in the narrowest sense of the term, it extends to the payment of salaries by virtue of its prominent role in the general economic system of work for pay. A payment such as this, a classic economic transaction, does indeed meet the requirements of "commerce" for purposes of shemitta.
If we are correct, then one may use shemitta produce for mishlo'ach manot without any halakhic concern whatsoever. Even should we consider this obligation as creating a monetary debt, it does not belong to the purely economic or business sphere as discussed; it belongs rather in the realm of fulfilling mitzvot. The monetary ramifications of this mitzva notwithstanding, mishlo'ach manot does not take on a commercial quality necessary for the application of the prohibition of shemitta.
- The Position of the Ramban
The Ramban (Avoda Zara 62a) presents the following explanation of the prohibition against paying debts and conducting commerce with shemitta produce:
The Torah ordained that shemitta fruits are for consumption and not for any other purpose; one may therefore not purchase anything inedible with shemitta fruits. One may, however, certainly buy edible food items… The reason is that something edible can have the sanctity of shemitta transferred thereupon, and one may therefore purchase it with shemitta fruits. Regarding something inedible this is forbidden: since the money paid for the fruits does not remain with him and cannot have the sanctity of shemitta transferred upon it, this is considered commerce.
The Ramban seems to posit that the basis of the prohibition against commercial activity with shemitta fruits is the negation of the possibility for these fruits to be eaten as shemitta produce. When someone earmarks shemitta produce for a purpose other than consumption, such as for payment of debt, he effectively divests it of its shemitta status.
The Ramban here follows consistently his general approach to the mitzva of shemitta, which he articulates in his critique of the Rambam's Sefer Ha-mitzvot ("hashmatot," mitzvat asei 3). There he establishes that there exists a positive commandment to partake of shemitta produce, based on the verses, "The land's shabbat shall be for you for eating;" "the poor of your nation shall eat." According to this view, commercial activity and paying debts with shemitta fruits violates a positive commandment, that of eating this produce.
In light of the Ramban's position, we may conclude that sending shemitta fruit to fulfill the mitzva of mishlo'ach manot does, indeed, constitute a violation of the mitzva of shemitta. The fruits are to be used for eating, not for the fulfillment of mitzvot or paying one's dues.
However, this conclusion may depend upon the nature of the mitzva of mishlo'ach manot. A question came before the Terumat Ha-deshen (111) regarding people who send clothing, linens and the like to their friends on Purim. Do they thereby satisfy the requirements of mishlo'ach manot? He answers,
It seems that they do not fulfill [the requirement] through them [the clothing and linens]. For it appears that the reason behind mishlo'ach manot is that each individual will have enough to conduct the [Purim] meal in accordance with the halakha, as is implied in the Gemara (Megilla 7b)… Additionally, it seems that we never find anything called "manot" besides foods or beverages…
Thus, according to the Terumat Ha-deshen, the mitzva of mishlo'ach manot is defined as part of the fulfillment of the mitzva of conducting a festive meal on Purim. If so, then sending shemitta fruits as mishlo'amanot cannot possibly violate the requirement to reserve them for consumption. After all, the individual sends them to his friend for the express purpose of including them in his meal!
- The Rambam's Position
It may be argued that according to the Rambam, repaying debts does not fall under the category of commercial activity; these two prohibitions have nothing to do with one another. The ban against commerce with shemitta produce applies to purely commercial transactions, which the Torah outlawed. The buyer may also be in violation of this prohibition for having taken part in a forbidden exchange. (The "Makneh" on Kiddushin 52a holds this view, namely, that the prohibition applies to both seller and buyer. The Noda Bi-Yehuda rules that only the merchant is included in the prohibition; see Noda Bi-Yehuda, Mahadura Kama, Even Ha-ezer 57.)
By contrast, the prohibition against paying debts with these fruits does not evolve from the act itself. Rather, one may not divert shemitta fruits from their destined purpose - consumption - to another purpose, as the Ramban had claimed regarding the prohibition against commerce. In fact, although the Rambam does not say so explicitly, this prohibition may be of rabbinic origin, while only commercial activity would constitute a Biblical violation. Although the aforementioned passage in Masekhet Avoda Zara explicitly includes the payment of debts under the category of commerce, the Rambam, as we will show, bases his approach on the Yerushalmi.
We will now show the basis for such a claim:
- The Yerushalmi (beginning of Demai ch. 3) asserts, "One may not pay loans or debts with shemitta produce or ma'aser sheni." By combining these two prohibitions - of shemitta and ma'aser sheni - into a single sentence, the Yerushalmi implies that they share a common foundation. This may appear startling at first: nowhere did the Torah ever prohibit commercial activity with ma'aser sheni! Such a prohibition exists only with regard to shemitta produce. Apparently, according to the Yerushalmi the ban against paying debts with shemitta fruits does not at all relate to the issue of commercial activity therewith. It rather involves some issue concerning shemitta that this institution shares with ma'aser sheni. What common prohibition do these two areas of halakha share?
In both instances, there exists a specific and clearly identified purpose of the given food: consumption. (Ma'aser sheni requires an additional element, consumption specifically within the walls of Jerusalem.) Using this produce - of either ma'aser sheni or shemitta - for the repaying of a debt diverts these fruits from their intended destiny, and is therefore forbidden in both cases. Thus, this prohibition has nothing to do with the specific prohibition of conducting commercial activity with shemitta produce.
- The Rambam codifies the prohibition against commercial activity with shemitta produce in Hilkhot Shemitta Ve-yovel 6:1. Nine paragraphs later, he mentions the issue of paying debts with shemitta fruits along with a list of other forbidden uses, entirely unrelated to commerce: wedding-related expenses, charity, the purchase of servants or real estate, and the purchase of sacrifices. A similar list appears in other places where money is allocated for a specific purpose and hence forbidden for these uses (Hilkhot Ma'aser Sheni 3:21; Hilkhot Matenot Aniyim, end of chapter 6). This arrangement leads us to believe that the Rambam viewed the prohibition against paying debts with shemitta funds as included in the general law forbidding their use for purposes other than eating.
If so, then we must return to our previous discussion concerning the nature of the mitzva of mishlo'ach manot. If, as we suggested, this obligation directly relates to the festive meal of Purim, then we have no reason to forbid the inclusion of shemitta fruits in one's mishlo'ach manot basket. Their use for this mitzva in no way undermines their intended purpose of consumption.
- More Regarding the Definition and Nature of Mishlo'ach Manot
In addition to the position of the Terumat Ha-deshen we encountered earlier, we may consider other sources in our quest to identify the precise definition and nature of mishlo'ach manot. We will briefly mention just two.
The Rema (O.C. 695:4) rules that one fulfills the mitzva of mishlo'ach manot even should the intended recipient refuse the goods. The Peri Chadash questions this ruling: perhaps one can fulfill his obligation only if the intended beneficiary accepts the gift!
The Chatam Sofer (Responsa, 196) explains this dispute as based upon the nature and character of mishlo'ach manot. The Peri Chadash maintains that this obligation involves primarily the preparations for the Purim meal, helping to ensure the availability of food for everyone. Naturally, then, one fulfills the obligation only if the recipient accepts the gift. The Rema, however, sees this mitzva as a means of increasing mutual friendship among Jews. As such, the very expression of one's willingness to send goods to the other fulfills this obligation.
The Bi'ur Halakha (695) cites the position of the Chayei Adam, based on the Yerushalmi, which disqualifies the mishlo'ach manot of a wealthy person if it is of low monetary value. Rav Zolty, in the piece cited earlier, cites the Ritva's presentation (Megilla 7a) of two views as to whether this halakha depends upon the giver's wealth or that of the recipient. He explains that if mishlo'ach manot comes to enhance friendship and brotherhood among the community, then a wealthy person who sends a cheap gift does not fulfill his obligation, even should he present it to a pauper. Since he offered a proportionally insignificant gift, he has not expressed any feelings of camaraderie with the recipient. By contrast, if this obligation is intended to facilitate a robust Purim feast, then we must direct our attention towards the recipient. Namely, even a scanty mishlo'ach manot basket will fulfill the obligation when given to a poor person, since in light of his lower standard of living, the mendicant's Purim meal has indeed been enhanced.
 One may wish to argue that the mitzva to eat shemitta fruit devolves exclusively upon its owner. As such, transferring the produce to another marks the owner's failure to perform his mitzva. However, if this were true, then the halakha should forbid one from sharing his shemitta fruits with others, which is certainly not the case. Secondly, the verse establishing this commandment (Vayikra 25:10) employs the plural form, "lakhem" ("for you"), suggesting that the mitzva requires that the fruits be eaten by anyone from among Benei Yisrael.