This Land Is ‘My’ Land
‘[If The Vow Was Imposed] In The Seventh Year…’
(Nedarim 42b)
By biblical decree, all produce that grows in Eretz Yisrael during shemittah is hefker. The field’s owner must allow everyone entry into his field, and everyone may take produce from it.
Hekdesh – A Consecrated Entity
If someone leases a house, he acquires the right to use the house. The landlord retains ownership of the actual property, but he cannot prevent his tenant from entering the house since the land is meshu’bad (encumbered) to him for his use.
The Gemara (Arachin 21a) states, however, that if the landlord consecrates the house (to hekdesh), the tenant must vacate the house. This halacha is based on the principle that hekdesh supersedes a preexisting encumbrance; therefore, when the land is declared hekdesh, the tenant loses his right to the land.
Vacating A Leased House
The Ran (Nedarim 46b) maintains that the same principle applies if a landlord makes a vow prohibiting a tenant to benefit from his property. Even though the land is encumbered to the tenant by virtue of the lease, the tenant must vacate the house if the landlord makes such a vow.
Public Access To Produce
A mishnah (on 42a) states that if one makes a vow during shemittah prohibiting someone from benefiting from his possessions, it is ineffective. The person may still benefit from his property because produce is hefker during shemittah. Ulla (on 42b) concludes that he may even enter his property to pick fruits from a tree that isn’t accessible to people standing outside the property.
Land Vs. Produce
Rabbi Aryeh Leib Heller (Avnei Millu’im 72:2) finds difficulty with this halacha. Since a vow supercedes an encumbrance, the person should be forbidden to enter the property just like a tenant is forbidden from entering his house if his landlord made a vow prohibiting the tenant to benefit from his property.
Divestment
In answer, the son-in-law of Rabbi Heller (Shi”r) suggests in his glosses to his father-in-law’s work (ad loc. s.k. 9) that the public’s right of access to a field during shemittah (to pick fruit) is in effect because the Torah divested the landowner of ownership of the produce. That’s why he cannot block entry into his field. “For the entire land is Mine,” the Torah states regarding shemittah. Since the landowner is not the absolute owner of his land during shemittah, he lacks the authority to prohibit someone from entering his property.