The Mitzva of Shmita in Our Generation
In our generation… We have been exiled from our land, and most of the Jewish nation does not live in its land, and each one of the twelve tribes does not reside on its territory. Therefore, the Tana’im (Mo’ed Katan 2b) disagree as to whether or not shmita should be practiced min haTorah. According to Rebbi, the mitzva of shmita is not practiced min haTorah anymore because of the fact that the Yovel year no longer applies. So Chazal stipulated that the laws of shmita should be practiced even today. On the other hand, according to the sages who disagree with Rebbi, the mitzva of shmita is still practiced min haTorah in this generation, even though the Yovel year no longer applies.
Rebbi’s reasoning is the fact that shmita is compared to yovel. In the Yerushalmi (Shvi’it 10:2), he expounds on the passuk “Vezeh dvar hashmita-shmot” – that there are two shmitas, namely shmita and yovel. When yovel is applicable, then shmita is practiced min haTorah, but now that the Yovel year is no longer applicable, shmita is practiced ‘from their words’ [mid’rabanan].
We’ve also found a few more reasons in both the Rishonim and the Poskim as to why shmita is not mid’Orayta. The sefer HaTrumot Sha’ar 45 (and others), stated another reason: we pasken l’halacha according to the opinion in the Gemara (Megilla 10) that the Kedusha Rishona of Eretz Yisrael only applied until the Destruction of the First Temple, but after we were exiled from our land, Kedushas Eretz Yisrael does not apply min haTorah. Others brought down another reason: The words “Ki tavo’u” are written in the Torah in the context of shmita. The Gemara learns that this means that all the Jews must come to the land; however, there is no obligation min haTorah if the entire Jewish nation does not come all together at once. And this is why the obligation of shviyit is not from the Torah. (This is also what the Mahari”t 1:25, according to the Rambam’s opinion, wrote, as well as Chayei Rabeinu Chayim HaLevi- Shmita 12:16).
The Rishonim and the Poskim actually disagreed. We will now present three opinions regarding this law:
1- Most of the Rishonim have explicitly ruled that the halacha goes according to Rebbi, namely that the Yovel is not applicable today min haTorah: The Rashb”a (in his tshuvos #9), the Ritb”a (Gitin 380), the Sema”g [Sefer Mitzvot HaGadol] (Assin 148 and Lavin 271), the Sema”k (258), the Yere’im (Hashalem 164). Even according to the opinion of the Rambam, many of the commentators explained that he considers shviyit to be miderabanan (they learned this out from his words in hilchos shmita veyovel 9:2 and 10:9 and 12:16). And the Mahar”i Korkos (4:29) stated that this is explicitly stated in the Rambam’s manuscripts, as well as the Chidushei HaRan leAvodah Zarah (9) according to the opinion of the Rambam.
Most of the poskim ‘paskened lehalacha’ (ruled) according to this opinion. The Achronim proved their point using the words of the Shulchan Aruch (Chshen Mishpat 67:1) who wrote that ‘shmitat kessafim’ does not apply min haTorah in our times because the Yovel year is no longer practiced. We learned from his words that ‘shmitat karka’ (allowing the land to rest) is not applicable min haTorah either. The following sources also paskened this lehalacha: the shu”t Avnei Nezer (Yoreh De’ah 468), shu”t Maharsha”m (Part 2, Yoreh De’ah 39), Pe’at HaShulchan (26), She’iltat David (Chidushei Shvi’it), Shu”t Achiezer (Part 2, Yoreh De’ah 39), Shu”t Tzitz HaKodesh (13), Chazon Ish (Shviyit 3).
2- Some of the Rishonim ruled according to the sages who state that shviyit is minHaTorah. The Ramban in the Sefer HaZechut (Gittin 4) wrote explicitly that this halacha goes according to the sages and not according to Rebbi. The following Rishonim are also of this opinion: the Rosh (Yoma 88, Tosefot haRosh Mo’ed Katan 4), the Ra’avad (shmita and yovel 1:11 & 2:15), the Or Zaru’a part 4 332) in the name of the Ritzb”a.
3- A few of the Rishonim are of the opinion that shmita is not at all applicable in our times, even according to their words. Rather, shmita is only a ‘midat chassidut’. Their reasoning: the Halacha is according to Rebbi that shmita depends on yovel. Therefore, whenever yovel is min haTorah shmita is also min haTorah, and in our times, when yovel is not even practiced midRabanan, neither is shviyit. (This is also the opinion of the ba’al Trumot Sha’ar in the name of the Raza”h, and according to the opinion of the “yesh Chachamim in the Ra”n Gitin, and this is also the opinion of the Me’iri in Gitin p. 351).
The opinion that shviyit should not be practiced at all in our times has not been accepted lehalacha. The Gedolei Rishonim adamantly refuted this opinion (see Ramban, the Trumot and the Ran there & more). The Urim veTumim (end of 67:101) wrote regarding the words of the Raza”h: The majority ruled [the words of the sages of the generation]. They almost unanimously accepted the simple meaning of the Gemara that shmita should be practiced in our times, either min HaTorah or mideRabanan. One can learn from the Chazon Ish (Shviyit 23:104) that one should not adopt this opinion and become lenient. One should not accept their opinion that shviyit is not practiced in our times, because all the poskim disagree with them. Also, the Ramban, the Rashba and the Ran, who came after them, stated that the halacha is not all like this opinion.
And it is worth noting the words of the Beit HaLevi (part 3 1:7:101) who stated that even according to the shitot (opinions) of the Rishonim that shviyit is not obligatory today min haTorah, if one does in fact fulfill the mitzva of shviyit, one is fulfilling a mitzvat asseh d’orayta! These are his words: Shviyit is in and of itself a mitzva d’Orayta, and he who fulfills it does a mitzva which the Torah commanded upon him. He is not obligated to fulfill this mitzva in our times for other reasons. Because it is the Torah’s will that the Holy Land should rest during the Sabbatical year. The chiyuv (obligation) does not apply today because Yovel is not practiced today. However, the act itself of fulfilling the mitzva of shviyit is in and of itself a mitzva d’Orayta.[Photo credits: http://www.templeinstitute.org/rosh_hashana/three_priests.htm]