Could the Fruit on my Tree be Orlah?

Question:

Recently, our school had several fruit trees planted for decorative and educational purposes. Someone told us that we must carefully collect the fallen fruits and bury them to make sure that no one eats them. Is there really an orlah prohibition in chutz la’aretz, and is it possible that these fully grown trees are producing orlah fruits? If indeed we need to be concerned about orlah, do we also need to redeem the fruits of the tree in the fourth year?

Before we can answer these questions, we need to discuss the following topics:

I. Is there a mitzvah of orlah in chutz la’aretz?

II. Can a fully-grown tree possibly have a mitzvah of orlah? I thought orlah only applies to the first three years of a tree’s growth!

III. Does orlah apply to an ornamental tree?

IV. Does the mitzvah of reva’ie apply in chutz la’aretz?

I. ORLAH

Introduction: The Torah (VaYikra 19:23) prohibits eating or benefiting from fruit grown on a tree during its first three years. Those fruits are called orlah and the prohibition of the Torah applies whether the tree was planted by a Jew or a gentile, and whether it grew in Eretz Yisroel or in chutz la’Aretz, although many leniencies apply to trees growing in chutz la’Aretz that do not apply to those growing in Eretz Yisroel (Mishnah Orlah 3:9). Orlah fruit must be burnt to guarantee that no one benefits from them (Mishnah Temurah 33b); in addition, Rav Shlomoh Zalman Auerbach, zt”l ruled that one must remove orlah fruits as soon as they begin to grow to prevent someone from mistakenly eating them.

REVA’IE

The Torah (VaYikra 19:24) teaches that the fruit a tree produces the year following its orlah years has a unique halachic status called reva’ie. One may eat this fruit only within the area surrounded by the original city walls of Yerushalayim and only if one is tahor, a status that is virtually unattainable today as we have no ashes of a parah adumah. However, the Torah permitted us to redeem reva’ie by transferring its sanctity onto coins which must be treated with special sanctity. After performing this redemption, the reva’ie fruit lose all special reva’ie laws and one may eat them wherever one chooses to and even if one is tamei. We will discuss later whether reva’ie applies outside Eretz Yisroel.

Why does Orlah apply in chutz la’aretz? Is it not an agricultural mitzvah that should not apply outside Eretz Yisroel (Mishnah Kiddushin 36b)?

The Gemara (Kiddushin 39a; Mishnah Orlah 3:9) teaches that orlah in chutz la’aretz has a special status. Although it is true that agricultural mitzvos usually apply only in Eretz Yisroel, a special halacha liMoshe miSinai teaches that the mitzvah of orlah applies in chutz la’aretz. (A halacha liMoshe miSinai is a law Hashem taught Moshe Rabbeinu at Har Sinai that has no source in the written Torah.) However, this particular halacha liMoshe miSinai came with an intriguing leniency.

QUESTIONABLE ORLAH

The usual rule is that in a case of doubt whether or not something is prohibited, one must rule stringently if it is a Torah law and prohibit the item (Gemara Avodah Zarah 7a). Even though orlah in chutz la’aretz has the status of a Torah prohibition, the halacha liMoshe miSinai teaches that any doubt concerning a chutz la’aretz orlah fruit may be treated with a unique leniency. In Eretz Yisroel, one may not purchase a fruit in a market without first determining whether there is a significant possibility that the fruit is orlah. In the case of orlah from chutz la’aretz, however, one is not required to research if the fruit is orlah. Even more, the fruit is prohibited only if one knows for certain that it is orlah and if one is uncertain it is permitted. Thus, doubtful orlah grown in chutz la’aretz is permitted even though definite orlah is prohibited min haTorah. This is indeed an anomaly.

This leads us to our next discussion point:

FULLY GROWN ORLAH TREES

II. Can a mature tree possibly have a mitzvah of orlah? I thought orlah only applies to the first three years of a tree’s growth!

Today someone living in chutz la’aretz may actually be the proud owner of a mature tree whose fruit is prohibited min haTorah because of orlah. How can this happen?

The Mishnah (Orlah 1:3) teaches that if a tree was uprooted and replanted, its orlah count sometimes begins anew. If the uprooted tree retained enough of its soil to survive, the old orlah count remains and if the tree was past its three orlah years its fruit are permitted. But if the tree’s soil was removed from its roots during the uprooting, it is considered as planted anew and its orlah count starts all over. Thus halacha can consider a fully mature tree as newly planted.

What factor determines whether the tree is halachically new or old? The criterion is whether the tree can survive with the soil still attached to its roots. However, the mishnah omits one important detail: for how long must the tree be able to survive with that soil on its roots? Obviously, if the tree continues to grow for a long time, the small amount of soil on its roots will be insufficient. How much soil must the tree have on its roots to not lose its orlah count?

The Rishonim dispute this question, some contending that soil for fourteen days is sufficient, while others require enough soil for considerably longer (see Beis Yosef, Yoreh Deah 394; Chazon Ish, Orlah 2:10-12). Since we rule leniently on orlah questions in chutz la’aretz, one may be lenient and permit a tree that has only enough soil to live for fourteen days. In Eretz Yisroel, many poskim rule that one must follow the stricter opinion.

It is important to note that, according to all opinions, if one replanted a tree with little or no soil attached, the tree is halachically considered as newly planted and the next three years of fruit are orlah. The Torah not only prohibits one to eat these fruits, but also to benefit from them – or even give them to a non-Jewish neighbor.

HOW COMMON IS THIS?

How often is a mature, replanted tree considered new for orlah purposes?

According to the expert I contacted:

“In most parts of the United States, fruit trees sold in late winter and very early spring are usually bare root, meaning no soil around the roots but rather some material, like wood shavings, just to keep them moist. Unsold trees are then potted into bucket-size pots or bags of soil which begin to grow as spring progresses and the tree leafs out. The nurseryman is being perfectly honest when he says it is a three-year-old tree — except that for orlah count it is in year one because it was replanted without soil. This problem is very common with many varieties of fruit trees that lose their leaves in autumn such as pears, plums, peaches, cherries, apricots, and nuts.”

The same expert pointed out that there can be other orlah problems in chutz la’aretz, such as trees grafted onto a root stock that was cut down to less than a tefach above the ground. This case, which is apparently very common, is halachically orlah midirabbanan (see Gemara Sotah 43b). This would apply even with a potted tree that never lost its soil. The orlah count begins over from when the tree is replanted.

WHAT DO I ASK THE GARDENER?

When purchasing a fruit tree from a nursery or gardener, what questions should one ask?

According to the horticultural- halachic expert I asked, the most common, and unfortunately little known, problem is not orlah but kilayim, mixing of species, or more specifically, harkavas ilan, grafting of a fruit tree onto the stock of a different species which also applies outside of Eretz Yisroel.

In regards to orlah, both of the above-mentioned problems could, and frequently do, happen: The tree may be replanted into your yard as bare-root, or it may be grafted onto a short stock that halachically qualifies the fruit that now grow as orlah.

Other orlah problems may occur. Here is a common case: Someone purchased a tree from a nursery where the soil was still attached to its root; the tree’s root ball was wrapped in burlap and tied. (This type of tree is called “balled and burlapped” in the nursery industry.) When purchasing such a tree, one should try to verify when the tree was planted, and also whether the soil ball fell off while replanting the tree, which is a common occurrence. All of these affect whether the fruits of the tree are orlah, and for how many years.

I will share with you one more case that some authorities consider an orlah problem. Some people grow fruit trees in pots and move them outdoors for the summer and back indoors for the winter. Some opinions contend that moving this tree outdoors is considered replanting it, particularly if the pot is placed on earth, and means that the fruit of this tree is always orlah!

III. ORLAH ON ORNAMENTAL TREES

If one plants a tree with no intention of using its fruit, is the fruit prohibited because of orlah?

The Mishnah (Orlah 1:1) rules that fruit growing on a tree planted as a barrier or hedge, for lumber, or for firewood are not orlah. The reason for this leniency is that the Torah states that the mitzvah of orlah applies “when you plant a tree for food” (VaYikra 19:23), and these trees are not meant for fruit. Perhaps the planting of our ornamental fruit trees is included in this leniency and their fruit is not orlah?

Unfortunately, this is not true. The Yerushalmi (Orlah 1:1) rules that this leniency applies only to trees planted in a way that makes it clear to an observer that they are not planted for their fruit. Examples of this are trees planted too close together for the proper growth of their fruit, or trees pruned in a way that the lumber will develop at the expense of the fruit. However, people usually do not grow ornamental trees in a way that demonstrates that they have no interest in the fruit.

Most poskim rule like this Yerushalmi (Rosh, Hilchos Orlah 1:2; Tur Yoreh Deah 294) including the Shulchan Aruch (Yoreh Deah 294:23). (Note that the Rambam [Maaser Sheni 10:2] does not quote this Yerushalmi as normative halacha. Those interested in researching why the Rambam seems to ignore the Yerushalmi should research the explanation of the Rashas to the Yerushalmi and the comments of the Beis Yosef on the above-quoted Tur.)

Many years ago when I was a rav in Baltimore, someone asked me a shaylah that is very germane to this discussion. He had planted a hopvine and asked me whether there was an orlah or reva’ie prohibition involved in this plant. Knowing only that hops are used as an ingredient in beer, I asked him what a “hopvine” is and why would one plant it? He answered that it is an ivy runner that climbs the walls of a building. He had planted the vine primarily because he liked the ivy cover for his house, but also because he was interested in brewing his own beer using organically grown hops. At that time I was under the impression that there was certainly an orlah problem since he also planned to harvest the fruit. But what would happen if if the planter had no interest in the fruit and was simply interested in the vine’s aesthetics? Would that absolve the vines from the mitzvah of orlah? I leave it to the reader to ponder this issue.

I subsequently discovered that hops are not an orlah concern for a totally different reason: Although hops do not need to be planted annually, halachically they are not considered trees since their shoots die off in the winter and re-grow each year. Such a plant is called a herbaceous perennial plant, not a tree, and is not subject to the halachos of orlah. Nevertheless, the concept of planting a tree not for its fruit is very halachically germane.

IV. DOES REVA’IE APPLY TO FRUITS GROWN OUTSIDE ERETZ YISROEL?

Does the mitzvah of reva’ie apply in chutz la’aretz as the mitzvah of orlah does, or is it treated like other agricultural mitzvos that apply only in Eretz Yisroel? The Rishonim debate this question and its answer depends on two other interesting disputes. The first, mentioned in the Gemara (Brachos 35a), is whether the mitzvah of reva’ie applies only to grapes or to all fruits. According to some opinions, the mitzvah of reva’ie applies only to grapes (see Tosafos, Kiddushin 2b s.v. esrog); according to a second opinion, it applies to all fruits (see Gemara Brachos 35a); and according to a third approach, the mitzvah applies min haTorah only to grapes, but it applies midirabbanan to all fruits (see Tosafos, Kiddushin 2b s.v. esrog).

A second dispute is whether the mitzvah of reva’ie applies outside the land of Israel, like the mitzvah of orlah, or whether it follows the general rule of most other agricultural mitzvos and applies only in Eretz Yisroel (Tosafos, Kiddushin 2b s.v. esrog and Brachos 35a s.v. ulimaan; Gra, Yoreh Deah 294:28). The logical question here is whether reva’ie is an extension of the mitzvah of orlah, in which case the halacha liMoshe miSinai that orlah applies in chutz la’aretz extends to reva’ie. On the other hand, it may be that reva’ie is a separate legal concept totally unrelated to the mitzvah of orlah. If the latter is true, reva’ie should be treated like any other agricultural mitzvah and would not apply in chutz la’aretz.

We should bear in mind that even if we conclude that reva’ie applies in chutz la’aretz, it applies only when these fruits are definitely obligated in reva’ie. If the fruit might be from a later year, one may eat the fruit without any kashrus concern. If the chutz la’aretz fruit may be third year (orlah) or may be fourth (reva’ie), one may be lenient and redeem the fruit as one treats reva’ie.

How do we rule?

There are three opinions among the poskim:

(1) Reva’ie applies to the fruit of all trees growing outside Eretz Yisroel.

(2) Reva’ie applies only to grapes, but not to other fruit trees of chutz la’Aretz. This opinion assumes that since there is an opinion that even in Eretz Yisroel reva’ie does not apply to species other than grapes, one may be lenient with regard to chutz la’aretz and treat the fruits as a safek.

(3) Reva’ie does not apply in chutz la’Aretz.

These last poskim contend that the halacha liMoshe miSinai forbidding orlah in chutz la’aretz applies only to orlah, but not to reva’ie, which is a separate mitzvah. Concerning reva’ie, the general rule that agricultural mitzvos only apply in Eretz Yisroel applies, thus exempting these fruits from the mitzvah of reva’ie.

How do we paskin?

Shulchan Aruch (Yoreh Deah 294:7) quotes the first and third opinions, but rules primarily like the first opinion that the mitzvah of reva’ie does apply outside of Eretz Yisroel. Rama and Gra both rule like the second opinion that it applies only to grapes outside of Eretz Yisroel and not to other fruits. Therefore, Ashkenazim may be lenient and need not redeem fourth-year fruits grown outside of Eretz Yisroel except for grapes, whereas Sefardim must redeem them.

HASHKAFAH OF TU B’SHVAT AND ORLAH

We all know that Tu B’Shvat is the “Rosh Hashanah” for trees, but what does that mean? Do the trees ignite fireworks on their New Year? Does Hashem judge their deeds and misdeeds and grant them a fruitful year or otherwise, chas v’shalom? (In actuality, the Mishnah in Mesechta Rosh Hashanah teaches that the judgment for trees is on Shavuos, not Tu B’Shvat!).

The truth is that the arboreal New Year does indeed have major halachic ramifications for man, who is compared to a tree (see Rashi, Bamidbar 13:20); these ramifications are intimately bound up with the orlah count that depends on Tu B’shvat. As Rav Shimshon Raphael Hirsch explains, by observing Hashem’s command to refrain from the fruits of his own property, one learns to practice the self-restraint necessary to keep all pleasure within the limits of morality.

While nibbling on the fruit this Tu B’Shvat, we should think through the different halachic and hashkafah ramifications that affect us.

The author thanks Rabbi Shmuel Silinsky for his tremendous assistance in providing agricultural information for this article.

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2 Comments Post a Comment
  1. Stephen Games says:

    Can a non-Jew eat fruit that is orlah? Can a non-Jewish employee in a Jewish household eat such fruit?

  2. admin says:

    The Rav said that a non-Jew can eat orlah, but should be careful not to serve fruit that you know is orlah (in Israel it’s a problem if you don’t know for sure it’s not orlah, more strict) to a Jew.

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