We left off discussing the concept of shamur, and today we will discuss how it applies to otzar bais din.
The Tosefta (Shviis 8:1) discusses the concept of otzar bais din. The original concept of otzar bais din was a response to people taking too much from the fields. The guards from bais din would stand by the entrances to the city, and if they saw someone return to the city with too much produce, they would take it away and give them a more appropriate amount. Eventually, the process evolved to bais din taking over the field, and hiring workers to process it. They would then divide the produce among the members of the town. This is not an issue of shamur because the bais din represents Klal Yisroel. If the idea of shemittah is that Klal Yisroel has the right to take over the field, bais din, representing Klal Yisroel, has done so, so the field is being used properly.
We mentioned non-Jews taking shemittah produce and whether one can guard a field to prevent non-Jews from taking. In truth, the field is hefker for non-Jews as well, but only as long as they will consume it with the parameters of kedushas sheviis. One is allowed to guard the field against non-Jews out of concern that they will not treat the produce with the proper kedusha. In a similar manner, bais din is allowed to guard the field out of concern for Jews who would take too much produce.
This was done in the times of Chazal, when the bais din had significant power. Nevertheless, a proposal was presented in the early 1900’s to reenact otzar bais din, which would allow for more maintenance of the fields and divide the produce with greater equity among people. Bais din would incur costs in hiring people to process the field, and bais din would be able to pass those charges to the consumer. There is no issue of making money on shemittah produce, as the money is not given for the produce but for the work. Additionally, it is not an issue of sechora (doing business with shemittah produce), because the purpose is not to make money but to divide the produce with Klal Yisroel. Based on this concept, bais din can take over the field and see to it that the esrogim are harvested properly without damaging the trees. The owner of the field will be one of those hired, especially because he knows his field best.
When the consumer comes to purchase an esrog from otzar bais din, the question now becomes whether the esrogim can be graded based on their quality. If the consumer is only paying for the work, and not for the fruit, the work was equal for all of the esrogim regardless of their quality, so it should be assur to grade them. However, the poskim suggest that the general grading system of aleph, beis and gimmel is muttar for a few reasons. More work went into maintaining the higher quality esrogim and more work went into choosing the better esrogim. Additionally, people want a system in which they can choose different gradations of their esrog (and the whole point of the otzar bais din system is to make shemitah produce more accessible to Klal Yisroel). Once they are being graded, they can be priced accordingly due to these reasons.
Regarding havla’ah (“swallowing” money within something larger, i.e., including payment from an esrog within a larger purchase), one question which comes up is whether the cost of the esrog can be muvlah (swallowed up) within the cost of transportation and work, rather than in the cost of the lulav. The consensus of most poskim is not to allow it.
The Rambam writes that a private person (one who is not a seller by profession) may sell a small amount of shemittah produce if they happen to receive extra produce. Thus, if a person buys an esrog and then finds a better one, they may sell off the first esrog, and may even ask for money for it. However, that money now has kedushas d’mei sheviis, so it would have to be used to buy food or produce, and deal with the food based on the parameters of shemittah produce.
The way to avoid the problem would be to buy it on credit. For example, Reuvain sells Shimon an esrog. Shimon buys the esrog on credit, and Shimon does not pay Reuvain until after Sukkos is over. When Shimon now gives Reuvain the money, he is not paying for the fruit, because the fruit is no longer intact for its purpose, but he is just paying back a loan.
However, this suggestion can cause an issue of lachem, that one must own their esrog in order to be yotzei with it. We will discuss this point in the next shiur, be’ezras Hashem.
- Otzar bais din is the concept of bais din taking over the processing of a field, for the benefit of Klal Yisroel, with the end consumer paying for the costs of the work and transportation but not for the produce itself.
- One may use an otzar bais din esrog.
- It is muttar to grade the esrogim based on their quality.
- A private person may sell an esrog if they happen to have an extra one, but the money now has the kedusha of d’mei shviis