Hefker Of Peiros Shviis - Part 2

Continuing our recent post about whether shmita is אפקעתא דמלכא - Hashem makes the land ownerless or אקרקפתא דגברא  - it is man's job. Some Achronim learn that it is a machlokes however there are proofs that EVERYBODY holds [even the Beis Yosef] that it is אפקעתא דמלכא.

1] The gemara in Bava Metzia [39a] seems to clearly state that it is אפקעתא דמלכא. See the gemara: נטושים דבעל כרחו דכתיב והשביעית תשמטנה ונטשתה אפקעתא למלכא - The field is called "abandoned" [נטושה]  meaning unwillingly as it says "In the seventh year, release it and abandon it [ונטשתה]" a command of the King [אפקעתא דמלכא].  

That sounds like אפקעתא דמלכא if only because it says so explicitly, black on white [yeshivish colors:-)]. But really there is no proof because maybe it just means that the King commands US to abandon the land and it is really אקרקפתא דגברא.

Moving right along:-).

2] The Rambam [Shmitta 4/4] says מצות עשה להשמיט כל מה שתוציא הארץ בשביעית וכו' וכל הנועל כרמו וכו' ביטל מצות עשה. From the lashon that "one is mevatel a mitzva if he fences in his vineyard" one may derive that only an active prevention of others from entering one's field is a problem. But it is not necessary to go ahead and make the field hefker because that is done by Hashem. If the mitzva were אקרקפתא דגברא the Rambam would have said that by not being mafkir the field he is mevatel a mitzva. See also the language of the Rambam in his Sefer Hamitzvos [134] where he says that Hashem is mafkir our produce [but see there that the lashon is not clear].

3] The mishna in Kilayim [7/5] says that if one plants forbidden kilayim on the seventh year, the produce is not forbidden because a person may not cause something that doesn't belong to him to become forbidden. So we see that even though this person planted his vineyard and didn't honor the Torah prohibition of being mafkir it, the field is nevertheless hefker. This indicates that the hefker is Divinely placed in effect.

4] In the Yerushalmi [Shviis 4/2] there is a machlokes when a person takes his fruits into his possession on the seventh year. According to one opinion, when he places the fruits into his vessels. According to the second opinion, placing the fruits into his vessels is not effective because this kinyan is predicated upon an error i.e. that the fruits belong to him when they really don't because they are hefker. We see that this person failed to make his field ownerless but it nevertheless has such a status. We are compelled to conclude that it is אפקעתא דמלכא. If Hashem didn't do it - who did? 

There is more to come but mincha beckons:-)

Bi-ahava,
Me