Shabbat Parashat Ki Tisa| 5765
From the works of Hagaon Harav Shaul Yisraeli zt”l - Raising Sheep in Israel in Our Days - Part I - From Amud Ha’yimini, siman 23
The Shulchan Aruch (Choshen Mishpat 409:40) rules: “One may not raise a beheima daka (thin animal, usually, sheep or goat) in Eretz Yisrael, because it is normal for them to graze in other people’s fields, and the damage they cause is common. You, though, may raise them in Suria and in the desolate areas in Eretz Yisrael. Nowadays that Jewish fields in Eretz Yisrael are uncommon, it seems that it is permitted.”
[Let us note that we are discussing a fear of damage which is not unusually high, because, if it were, then it would be forbidden to have such a situation even without a specific, rabbinic institution. Rather, the institution was to demand more than accepted levels of care in areas of specific, community need.]
Rav Tzvi Pesach Frank (the late chief Rabbi of Yerushalayim) was asked whether this law would apply nowadays when Eretz Yisrael is once again full of Jewish agriculture. He responded that he thought that the prohibition to raise sheep should no longer apply. His reasoning was that once a rabbinic institution is phased out because of the circumstances, it does not become automatically revived when the circumstances revert to their original state. He brought the following proof to this concept.
The Yerushalmi (Sanhedrin 3:5) discusses the institution that when one works a field during the Shemittah year, he cannot sow the field in the period directly after Shemittah was completed. But because of aggressive taxes by the king, they permitted them to sow after Shemittah. Rav Yirmiyah said that even in his time, when the aggressive taxes no longer existed, the institution remained out of use. However, R. Yossi said that the institution remained unless and until an authorized beit din formally ended it, which did not happen in the case of Shemittah (Yerushalmi, based on explanation of the Korban Ha’eida). We have proof from R. Yirmiyah to be lenient in our case. Rav Frank reasoned that it is likely that even R. Yossi would agree in our case. In the case of Shemittah, the institution still applied, it just was relaxed under the pressures of the time. In contrast, regarding raising sheep, the whole basis of the institution became no longer applicable. Futhermore, we should be lenient in such a machloket regarding laws that are only rabbinic in origin. Yabia Omer (III, CM 7) asked on the assumption that in a case of machloket on this matter, we should follow the lenient opinion. After all, the Rambam (Shemittah 10:11, 13) rules like the strict opinion of R.Yossi.
One can strengthen Rav Frank’s position vis a vis the Yerushalmi as follows. The Yerushalmi’s case, as seen from context, is one in which the relaxation of the institution was done for pikuach nefesh (to save lives). In such a case there is no need to undo the institution in order to allow the leniency but just follow the needs of security (not to anger the king). Therefore, Rav Yirmiyah’s original claim that an institution which was undone needs to be formally reinstituted is a correct one, just that it does not apply in the case of Shemittah according to R. Yossi. But in our case, by raising sheep, once the institution went out of use, we should accept Rav Yirmiyah’s logic that it stays that way.
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