In a decision handed down by the Petach Tikva District Court this 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 zt"l ylct"a 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 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.
