Hefker Of Peiros Shviis - Part 1

The Achronim discuss the fundamental question of how we understand the law of the produce becoming hefker [ownerless] on shviis. We know that one's field becomes ownerless on the seventh year and anybody can come in and help himself to the fruits.

The question is - How does this work? In the terminology of the Minchas Chinuch, it is אפקעתא דמלכא - Hashem renders the field ownerless without any human input. Or is it אקרקפתא דגברא - man is commanded to render his field ownerless and if he fails to do so, one who takes his fruits is stealing. There are numerous nafa minah's. 1] If the owner neglected to make his field hefker, is it nevertheless hefker? 2] A field belonging to a חרש-שוטה-וקטן who cannot make a field hefker on their own. 3] Does the owner have to actively mafkir his field in order to fulfill the mitzva or is it sufficient to refrain from working the field. If we take the side of אפקעתא דמלכא then it is hefker even without the owner saying anything, even a field of a חרש-שוטה-וקטן becomes hefker and the mitzva is fulfilled by merely not working the field. If it is אקרקפתא דגברא then the owner must make it hefker, a חש"ו don't have this ability and the mitzva is only done properly when the owner is mafkir.

The Minchas Chinuch [Mitzva 84] says that this is a machlokes between the Mabit and the Beis Yosef, R' Yosef Karo. The Mabit held that the produce of goyim in Eretz Yisroel is patur from trumos and maasros and based his opinion on 2 principles. 1] The very קדושת הפירות of shmita makes the produce patur from maaser even if they wouldn't be hefker at all. 2] Even produce of goyim is hefker since it is אפקעתא דמלכא and not a mitzva on the owner of the land.

The Beis Yosef argued on both points. He contended that the only reason the produce is patur from maaser is because it is hefker. He also believed that the produce of goyim is not hefker since it is not included in the mitzva of shmitta and by extension it is chayav in maaser. The Minchas Chinuch understood that the Beis Yosef held that shmita is אקרקפתא דגברא and goyim are thus exempt.

The Chazon Ish takes issue with this approach and says that according to everyone, shmitta is אפקעתא דמלכא. For more  - please visit Mevakesh again soon when I hope to continue:-).  

לזכות נעכא גיטל בת רחל אסתר זרעא חיא וקימא די לא יפסוק ולא יבטול מפתגמי אורייתא