1. What bracha one recites on its fruit.

2. What bracha one recites on its fragrance.

3. Whether the prohibition of orlah applies to its fruit.

4. How severe is the prohibition to destroy it (ba’al tashchis).

5. There are several agricultural halachos concerning kilayim, shmittah, and ma’aser, all of which are relevant only in Eretz Yisroel.

What does this have anything to do with the impending beginning of Elul and the papaya tree? Stay tuned and find out.

The Gemara mentions that a tree that takes root thirty days before Rosh Hashanah is halachically considered to complete its first year and begin its second year on Rosh Hashanah. This has major ramifications for determining which fruit are no longer prohibited as orlah, but more so, can actually be a factor as to whether certain crops are permitted or not. As we will soon see, the question germane to papaya is because most papaya fruit often grows before the tree is three years old, which may create a problem whether one may eat the papaya fruit. As we will soon see, although this problem is more serious in Eretz Yisroel, the question also exists germane to papaya that grows elsewhere.

What is a Tree?

Although it is obvious that an oak tree is not a vegetable, the status of many species of Hashem’s botanical wonders is questionable: are they trees or are they not? The Random House dictionary I have on my desk defines a tree as, “a plant having a permanently woody main stem or trunk, ordinarily growing to a considerable height, and usually developing branches at some distance from the ground.” If we exclude the two qualifiers, “ordinarily” and “usually,” then this definition does not consider a grape vine to be a tree since it lacks height if not supported and does not develop branches some distance from the ground. Since we know that halacha considers grapes to be fruits of the tree, this definition will not suffice. On the other hand, if we broaden the definition of “tree” to include all plants that have a “permanently woody stem or trunk” we will not only include grape vines, but also probably include eggplant, pineapple, and lavender, all of which have woody stems. On the other hand, several plants, such as the date palm and papaya, fit the Random House definition as a tree and yet grow very differently from typical trees. Are all of these plants trees?

For halachic purposes, a better working definition is that a tree is a woody perennial plant that possesses a stem that remains from year to year and produces fruit. This definition is also not without its difficulties. In a different article, I discussed the status of eggplant, several varieties of berry including raspberry and cranberry, and several fragrant plants and flowers, which may or may not qualify as trees, depending on our definition. There are many times that we treat a plant "lechumrah" as a tree regarding the very stringent laws of orlah, although we will not treat it as a tree regarding many or all of the other halachos mentioned. In that article, I noted that the following characteristics might be qualifying factors in providing the halachic definition of a tree:

(a) Is the species capable of producing fruit within its first year (after planting from seed)?

(b) Does the fruit production of the species begin to deteriorate the year after it begins producing?

(c) Does the species produce fruit from shoots that will never again produce fruit?

(d) Is its physical appearance markedly different from a typical tree?

(e) Many poskim contend that the prohibition of orlah does not apply to a tree that produces fruit for three years or less.

We should also note that poskim dispute whether the definition of a tree for the purposes of the bracha “borei atzei besamim” is the same as the definition for the bracha of “borei pri ha’eitz” and for the halachos of orlah, shmittah, ma’aser, and kilayim.

Is papaya a tree?

A papaya may grow ten feet tall or more, but it bears closer similarity in many ways to being a very tall stalk since its stem is completely hollow on the inside and it does not usually produce branches. Its leaves and fruits grow directly on the top of the main stem, and it usually produces fruit during the first year, unlike most trees.

Commercially, the grower usually uproots the plant after four to five years of production, although the papaya can survive longer, and in some places it is standard to cut it down and replant it after three years.

With this introduction, we can now begin to discuss whether papaya is a tree fruit and its proper bracha borei pri ha’eitz, or whether is it is considered a large plant on which we recite ha’adamah as we do for banana. A more serious question is whether the prohibition of orlah applies to papaya. If it does, this could create an intriguing problem, since it may be that there are plantations, or even countries, where the entire papaya crop grows within three years and may be prohibited as orlah.

Commercial and Halachic History of Papaya

The Spaniards discovered papaya in Mexico and Central America, from there it was transported to the Old World. The earliest halachic reference to it that I am aware of is a shaylah sent from India to the Rav Pe’alim (Vol. 2, Orach Chayim #30), author of the Ben Ish Chai, asking which bracha to recite on its fruit.

The Rav Pe’alim discusses what the appropriate bracha on papaya is. He begins by comparing papaya to the eggplant. Based on four factors, Rav Pe’alim rules that papaya is not a tree and that the appropriate bracha is ha’adamah. These factors are:

1. The part of the stem that produces fruit never produces again. Instead, the fruit grows off the newer growth higher on the plant. Initially, I did not understand what the Rav Pe’alim meant with this, since there are many trees, such as dates, which produce only on their new growth, not on the old. Thus, this does not seem to be a feature that defines a tree. After further study, I realized that the difference is that papaya produces fruit only on top of the “tree,” and it looks atypical, not resembling other trees, whereas with dates, although the fruit grows on the new growth high up on the tree, it does not grow on the top of the tree, but from branches on the new growth.

2. The stem of the papaya is hollow, which is not characteristic of trees. (Rav Moshe Shternbuch, in his teshuvah on whether papaya is included in the prohibition of orlah, describes papaya as a tall stalk. See Shu’t Teshuvos VeHanhagos 3:333).

3. The fruit grows directly on the trunk and not on the branches.

4. The papaya produces fruit within its first year.

In a follow-up letter, a correspondent wrote that the custom among Jews in India is to recite ha’eitz before eating the papaya’s fruit. Rav Pe’alim responded that he does not consider this custom to be a halachic opinion, since the community lacked Talmidei Chachomim to paskin shaylos. He points out that if the papaya is a tree, then we must prohibit its fruit as orlah since the grower usually cuts it down before its fourth year.

Among contemporary poskim, some follow the ruling of the Rav Pe’alim that papaya is exempt from orlah and its bracha is ha’adamah (Shu’t Yechaveh Daas 4:52), whereas most rule that papaya does have orlah concerns (Shu’t Shevat Halevi 6:165; Mishpetei Aretz, page 27, quoting Rav Elyashiv; Teshuvos VeHanhagos). One should note that Rav Ovadyah Yosef, who rules that papaya is exempt from any orlah concerns, also rules that passionfruit, called pasiflora in Hebrew, is also exempt from the prohibition of orlah since it produces fruit in its first year. Most other authorities do not accept this approach.

Papaya outside Eretz Yisrael

There should be a difference in halacha between papaya growing in Eretz Yisroel and that growing in chutz la’aretz. Whereas the prohibition of orlah exists both in Eretz Yisroel and in chutz la’aretz, questionable orlah fruit is prohibited if it grew in Eretz Yisroel but permitted if it grew in chutz la’aretz. This is because the mitzvah of orlah has a very unusual halachic status. There is a halacha leMoshe meSinai that prohibits orlah fruit outside of Eretz Yisroel, but only when we are certain that the fruit is orlah. When we are uncertain whether the fruit is orlah, the halacha leMoshe meSinai permits this fruit.

Based on the above, one should be able to permit papaya growing outside Eretz Yisroel either because (1) there is the possibility that this particular fruit grew after the orlah years had passed or (2) that perhaps papaya is not considered a tree for one of the reasons mentioned by the Rav Pe’alim.

There are two important differences in halacha between these two reasons. The first is whether the bracha on papaya is ha’eitz or ha’adamah. The Rav Pe’alim ruled that it is not a tree fruit and therefore its bracha is ha’adamah. According to the first approach, it may indeed be ha’eitz and still be permitted, since it is only safek orlah.

Here is another difference in halacha between the two reasons.

Papain

Papain is a highly popular enzyme extracted from the papaya. In the early twentieth century, Belgian colonists in the Congo noticed that the local population wrapped meat in papaya leaves. The colonists discovered that the papaya leaves preserved the meat and also tenderized it. Laboratory analysis discovered an enzyme, now called papain, as the agent of the process. This spawned a new industry producing and selling papain from papaya plantations around the world.  New applications were discovered, and papain is now also used in the production of beer, biscuits, and is very commonly used as a digestive aid.

If papain were still produced from leaves there would be no orlah issue, since orlah applies only to the fruit of a plant. Unfortunately, today’s papain is extracted not from the leaf, but from the peel of the papaya. If a fruit is prohibited as orlah, its peel is also prohibited.

In actuality, there is a more serious problem of orlah in papain than in eating the papaya fruit itself. Papain is collected by scratching the peel of the growing fruit, which causes a liquid containing the papain to exude from the peel, without harming the fruit. A bib is tied around the middle of a papaya tree, which catches all the papain from that particular tree. The papain is collected and sent to a plant where all the papain harvested is blended. The process can be repeated many times before the fruit is ripe for picking. Thus, the papain is a second crop.

However, this method of harvesting the papain creates a halachic complexity not encountered with the papaya fruit. Since safek orlah is permitted in chutz la’aretz, if we are uncertain as to whether a particular tree growing is within its orlah years, we may eat the fruit because of the halacha leMoshe meSinai that safek orlah is permitted. Therefore, even if we consider papaya a tree, the fruit grown outside Eretz Yisroel is permitted if there is a possibility that it is not orlah.  The papain, however, would be prohibited because the papain used is a mixture of extracts of all the fruit. If indeed this particular grove contained some trees that are orlah, then the mixture is permitted only if there are 200 parts of non-orlah fruit to one part orlah, which in essence prohibits all the papain.

The above is true if we assume that the papaya is a tree subject to the laws of orlah. However, if we assume that the different reasons suggested are enough bases to rule that it is questionable whether papaya is subject to the laws of orlah, then we may permit papaya from trees that grow outside Eretz Yisrael even when we are certain that the tree is less than three years old. The latter reason would permit papain that originates in chutz la’aretz.

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 arlah prohibition in chutz la’aretz, and is it possible that these fully grown trees are producing arlah fruits? If indeed we need to be concerned about arlah, 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 arlah in chutz la’aretz?

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

III. Does arlah apply to an ornamental tree?

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

I. ARLAH

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 arlah 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 Arlah 3:9). Arlah 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 arlah fruits as soon as they begin to grow to prevent someone from mistakenly eating them (heard orally from Rabbi Shmuel Silinsky).

REVA’IE

The Torah (VaYikra 19:24) teaches that the fruit a tree produces the year following its arlah 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 Arlah 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 Arlah 3:9) teaches that arlah in chutz la’aretz has a special status. Although it is true that agricultural mitzvos usually apply only in Eretz Yisroel, a special halacha leMoshe miSinai teaches that the mitzvah of arlah applies in chutz la’aretz. (A halacha leMoshe miSinai is a law Hashem taught Moshe Rabbeinu at Har Sinai that has no source in the written Torah.) However, this particular halacha leMoshe miSinai came with an intriguing leniency.

QUESTIONABLE ARLAH

The usual rule is that in a case of doubt whether or not something is prohibited, one must rule stringently and prohibit the item a Torah law is involved (Gemara Avodah Zarah 7a). Even though arlah in chutz la’aretz has the status of a Torah prohibition, the halacha leMoshe miSinai teaches that any doubt concerning whether a chutz la’aretz fruit is arlah 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 arlah. In the case of arlah from chutz la’aretz, however, one is not required to research if the fruit is arlah. Even more, the fruit is prohibited only if one knows for certain that it is arlah and if one is uncertain it is permitted. Thus, doubtful arlah grown in chutz la’aretz is permitted even though definite arlah is prohibited min haTorah.

This leads us to our next discussion point:

FULLY GROWN ARLAH TREES

II. Can a mature tree possibly have a mitzvah of arlah? I thought arlah 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 arlah. How can this happen?

The Mishnah (Arlah 1:3) teaches that if a tree was uprooted and replanted, its arlah count sometimes begins anew. If the uprooted tree retained enough of its soil to survive, the old arlah count remains and if the tree was past its three arlah 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 arlah count starts all over. Thus halacha can consider a fully mature tree that has been transplanted as newly planted.

What 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 maintain its post-arlah status?

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, Arlah 2:10-12). Since we rule leniently on arlah 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 arlah. The Torah not only prohibits eating these fruits, but even benefiting from them – or even giving them as a present to a non-Jewish neighbor.

HOW COMMON IS THIS?

How often is a mature, replanted tree considered new for arlah 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 arlah 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 arlah 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 arlah miderabbanan (see Gemara Sotah 43b). This would apply even with a potted tree that never lost its soil. The arlah 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 arlah 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 arlah, both of the previously 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 arlah.

Other arlah 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 burlaped" 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 arlah, and for how many years.

I will share with you one more case that some authorities consider an arlah 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 arlah!

III. ARLAH ON ORNAMENTAL TREES

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

The Mishnah (Arlah 1:1) rules that fruit growing on a tree planted as a barrier or hedge, for lumber, or for firewood are not arlah. The reason for this leniency is that the Torah states that the mitzvah of arlah 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 arlah?

Unfortunately, this is not true. The Yerushalmi (Arlah 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 Arlah 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 arlah 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 arlah 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 arlah? I leave it to the reader to ponder this issue.

I subsequently discovered that hops are not an arlah 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 arlah. 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 arlah 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 arlah, 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 arlah, in which case the halacha leMoshe miSinai that arlah 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 arlah. 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.

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 leMoshe miSinai forbidding arlah in chutz la’aretz applies only to arlah, 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 ARLAH

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 arlah 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.

Whereas those living  in chutz la’aretz do not recite ve’sein tal umatar (the prayer for rain added to the bracha of Boreich Aleinu in the weekday shmoneh esrei) until the beginning of December, those living in Eretz Yisroel begin reciting this prayer on the Seventh of MarCheshvan. This difference in practice leads to many interesting shaylos:

Question #1:

Yankel, who lives in New York, is in aveilos l”a for his father and tries to lead services (colloquially often called “davening before the amud”) at every opportunity. He will be visiting Eretz Yisroel during the month of November. Does he recite the prayer according to the Eretz Yisroel practice while there? Which version does he recite in his quiet shmoneh esrei? Perhaps he should not even lead services while he is there?

Question #2:

Does someone attending Yeshiva or seminary in Eretz Yisroel recite ve’sein tal umatar according to the custom of Eretz Yisroel or according to the chutz la’aretz practice?

Question #3:

Reuven lives in Eretz Yisroel but is in chutz la’aretz on the Seventh of MarCheshvan (the day that in Eretz Yisroel they begin praying for rain). Does he begin reciting ve’sein tal umatar while in chutz la’aretz, does he wait until he returns to Eretz Yisroel to begin reciting it, or does he follow the practice of those who live in chutz la’aretz and not recite it until December?

In order to explain the halachic issues involved in answering these shaylos, we must first explain why we begin requesting rain on different dates in Eretz Yisroel than we do in chutz la’aretz.

The Gemara (Taanis 10a) concludes that in Eretz Yisroel one begins reciting ve’sein tal umatar on the Seventh of MarCheshvan, whereas in Bavel (where there was a large concentration of Jews) one begins reciting it on the sixtieth day after the autumnal equinox. (The Gemara’s method for calculating the autumnal equinox is based on what is called a sidereal year and differs from our familiar calculation, which is based on the solar year. The reason for this is unfortunately beyond the scope of this article.) Someone who recites ve’sein tal umatar during the summer months in Eretz Yisroel must repeat the Shemoneh Esrei since this request in the summer is inappropriate (Gemara Taanis 3b; Shulchan Aruch Orach Chayim 117:3).

WHY ARE THERE TWO DIFFERENT “RAIN DATES?”

Since Eretz Yisroel requires rain earlier than Bavel, Chazal instituted that the Jews there begin requesting rain shortly after Sukkos. In Bavel, where it was better if it began raining later, reciting ve’sein tal umatar was delayed until later. This practice is followed in all of chutz la’aretz, even in places where rain is not seasonal or where it is necessary to rain earlier — although the precise reason why all of chutz la’aretz follows the practice of Bavel is uncertain (see Rashi and Rosh to Taanis 10a; Shu”t Rosh 4:10; Tur and Shulchan Aruch Orach Chayim 117).

LOCAL CONDITIONS

If a city’s residents need rain at a different time in the year, can they or should they recite ve’sein tal umatar then or not? The Gemara (Taanis 14b) raises this question and cites the following story:

“The people of the city of Nineveh (in contemporary Iraq) sent the following shaylah to Rebbe: In our city we need rain even in the middle of the summer. Should we be treated like individuals and request rain in the bracha of Shma Koleinu or like a community and recite ve’sein tal umatar during the bracha of Boreich Aleinu? Rebbe responded that they are considered individuals and should request rain during the bracha of Shma Koleinu.”

This means that an individual or a city that needs rain during a different part of the year should recite ve’sein tal umatar during the bracha of Shma Koleinu, but not as part of Boreich Aleinu.

NATIONAL CONDITIONS

Is a country different from a city? In other words, if an entire country or a large region requires rain at a different time of the year, should its residents recite ve’sein tal umatar during the bracha of Boreich Aleinu? The Rosh raises this question and contends, at least in theory, that residents of a country should recite ve’sein tal umatar in Boreich Aleinu during the season that it requires rain. In his opinion, most of North America and Europe should recite ve’sein tal umatar during the summer months. Although we do not follow this approach, someone who recites ve’sein tal umatar at a time when his country requires rain should not repeat the Shmoneh Esrei but should rely retroactively on the opinion of the Rosh (Shulchan Aruch and Rama 117:2). Similarly, someone who recited ve’sein tal umatar as part of Boreich Aleinu in error after the Seventh of MarCheshvan should not repeat Shmoneh Esrei afterwards unless he lives in a country where rain is not necessary at this time (Birkei Yosef 117:3; cf. Shu”t Ohalei Yaakov #87 of Maharikash who disagrees.).

With this introduction, we can now begin to analyze the questions at hand. What should someone do if he lives in Eretz Yisroel but is in chutz la’aretz, or vice versa, during the weeks when there is a difference in practice between the two places? As one can imagine, much halachic literature discusses this shaylah. I found three early opinions, which I quote in chronological order:

Opinion #1. The earliest opinion I found, that of the Maharikash (Shu”t Ohalei Yaakov #87) and the Radbaz (Shu”t #2055), discusses specifically an Eretz Yisroel resident who left his wife and children behind while traveling to chutz la’aretz. (In earlier generations, it was common that emissaries from the Eretz Yisroel communities traveled to chutz la’aretz to solicit funds.) These poskim ruled that if the traveler left his family in Eretz Yisroel, he should begin reciting ve’sein tal umatar on the Seventh of MarCheshvan, following the practice of Eretz Yisroel, regardless of whether he himself was then in Eretz Yisroel or in chutz la’aretz. If he is single, or alternatively, if he is traveling with his family, then when he begins reciting ve’sein tal umatar depends on whether he will be gone for the entire rainy season. If he leaves Eretz Yisroel before the Seventh of MarCheshvan and intends to be gone until Pesach or later, then he recites ve’sein tal umatar according to the practice of chutz la’aretz. If he intends to return before Pesach, then he recites ve’sein tal umatar beginning on the Seventh of MarCheshvan even though he is in chutz la’aretz.

The key question here is, what is the criterion for determining when someone recites ve’sein tal umatar? These poskim contend that it depends on his personal need. If his immediate family is in Eretz Yisroel and therefore requires rain already on the Seventh of MarCheshvan, he begins reciting ve’sein tal umatar then even though he himself is in chutz la’aretz. This is considered that he has a personal need for rain (Shu”t Igros Moshe, Orach Chayim 2:102).

Opinion #2. The Pri Chodosh (Orach Chayim 117) quotes the previous opinion (of the Maharikash and the Radbaz) and disputes with them, contending that only one factor determines when the traveler begins reciting ve’sein tal umatar – how long he plans to stay abroad. If he left Eretz Yisroel intending to be away for at least a year, he should consider himself a resident of chutz la’aretz (for this purpose) and begin reciting ve’sein tal umatar in December. If he intends to stay less than a year, he should begin reciting ve’sein tal umatar on the Seventh of MarCheshvan. Furthermore, the Pri Chodosh states that whether one leaves one’s immediate family behind or not does not affect this halacha.

These two approaches disagree what determines when an individual recites ve’sein tal umatar. According to Opinion #1 (the Maharikash and the Radbaz), the main criterion is whether one has a personal need for rain as early as the Seventh of MarCheshvan. According to the Opinion #2 (the Pri Chodosh), the issue is whether one is considered a resident of Eretz Yisroel or of chutz la’aretz.

According to this analysis of Opinion #2, a resident of chutz la’aretz who intends to spend a year in Eretz Yisroel begins reciting ve’sein tal umatar on the Seventh of MarCheshvan whereas if he intends to stay less than a year he follows the practice of chutz la’aretz (Pri Megadim; Mishnah Berurah; cf. however Halichos Shelomoh 8:28 pg. 107). However according to Opinion #1, he would being reciting ve’sein tal umatar on the Seventh of MarCheshvan if he or his family intend to spend any time during the rainy season in Eretz Yisroel. Thus, we already know some background to Question #2 above concerning a yeshiva bachur or seminary student in Eretz Yisroel. According to Opinion #1, they should follow the Eretz Yisroel practice, whereas according to Opinion #2, they should follow the chutz la’aretz practice if they intend to stay for less than a year.

Opinion #3. The Birkei Yosef quotes the two above-mentioned opinions and also other early poskim who follow a third approach, that the determining factor is where you are on the Seventh of MarCheshvan. (See also Shu”t Dvar Shmuel #323.) This approach implies that someone who is in Eretz Yisroel on the Seventh of MarCheshvan should begin praying for rain even though he intends to return to chutz la’aretz shortly, and that someone who is in chutz la’aretz on that date should not, even though he left his family in Eretz Yisroel.

Dvar Shmuel and Birkei Yosef explain that someone needs rain where he is, and it is not dependent on his residence. Birkei Yosef points out that if there is a severe drought where he is located it does not make any difference whether he lives elsewhere; he will be a casualty of the lack of water. This was certainly true in earlier generations where water supply was dependent on local wells. Even today, when water is supplied via piping from large reservoirs, this opinion would seemingly still rule that the halacha is determined by where one is located, and not one’s residence.

Opinion #3 (the Birkei Yosef’s approach) is fairly similar to that of Opinion #1 (the Maharikash and the Radbaz) in that both approaches see the determining factor to be temporary need and not permanent residency. However, these two opinions dispute concerning several details, including what is the ruling of someone in chutz la’aretz whose family remains in Eretz Yisroel. According to Opinion #1, this person begins ve’sein tal umatar on the Seventh of MarCheshvan, whereas Opinion #3 contends that he begins only when the other bnei chutz la’aretz do.

Why does Opinion #3 disregard his family being in Eretz Yisroel as a factor, whereas Opinion #1 is concerned? Birkei Yosef explains that praying for rain for one’s family when one is in chutz la’aretz is praying for an individual need, which is done in shma koleinu and not earlier in the shemoneh esrei since the rest of the community there has no need for rain. Opinion #1 presumably holds that praying for Eretz Yisroel when I am in chutz la’aretz is not considered praying for an individual even though my reason to pray for rain in Eretz Yisroel is personal.

After analyzing these three conflicting opinions, how do we rule? Although the later poskim, such as the Mishnah Berurah, refer to these earlier sources, it is unclear how they conclude halachically. (See Shu”t Tzitz Eliezer 6:38, which contains a careful analysis of the words of the Mishnah Berurah on this subject.) Thus, an individual should ask his Rav what to do in each case.

TRAVELING AND RETURNING

What does one do if he travels and returns within these days? Assuming that he began to recite ve’sein tal umatar on the Seventh of MarCheshvan because he was in Eretz Yisroel (and he followed those opinions that rule this way or he changed his plans), does he now stop reciting it upon his return to chutz la’aretz?

This question is raised by the Birkei Yosef (117:6), who rules that he continues reciting ve’sein tal umatar when he returns to chutz la’aretz.

What does one do if he is reciting ve’sein tal umatar and the community is not, or vice versa — and he would like to lead the services (“daven before the amud”)? Birkei Yosef rules that he should not lead the communal services; however, if he forgot and did so, he should follow his own version in the quiet Shmoneh Esrei and the community’s version in the repetition (Birkei Yosef 117:8). However, Rav Shlomoh Zalman Auerbach permitted him to lead the services (Halichos Shelomoh 5:21; note that according to Igros Moshe, Orach Chayim 2:23, 29; 4:33 he should not lead the services.).

Let us now examine some of the shaylos we raised above:

Question #1:

Yankel, who lives in New York, is in aveilos l”a for his father and tries to lead services (colloquially but inaccurately usually called “davening before the amud”) at every opportunity. He will be visiting Eretz Yisroel during the month of November. Does he recite the prayer according to the Eretz Yisroel practice while there? Which version does he recite in his quiet shmoneh esrei? Is he even permitted to lead services while he is there?

According to all of the opinions involved, when davening privately Yankel should not recite ve’sein tal umatar until it is recited in chutz la’aretz since he does not live in Eretz Yisroel, does not have immediate family living there, and was not there on the Seventh of MarCheshvan. As explained above, according to most opinions, he should not lead the services since he is not reciting ve’sein tal umatar and the congregation is, whereas according to Rav Shlomoh Zalman Auerbach he may lead the services. According to Birkei Yosef, if he is in Eretz Yisroel on the Seventh of MarCheshvan he should begin to recite ve’sein tal umatar then since he now has a need for rain; he should continue to recite this prayer even when he returns to chutz la’aretz. However, in this case, when returning to chutz la’aretz he should not lead services according to most opinions since he is reciting ve’sein tal umatar and they are not. If he forgot and led the services, he should recite ve’sein tal umatar in the quiet Shmoneh Esrei but not in the repetition.

According to the Pri Chodosh (Opinion #2 above), if he is in Eretz Yisroel on the Seventh of MarCheshvan he should not recite ve’sein tal umatar since he lives in chutz la’aretz. Following this approach, he should not lead services when in Eretz Yisroel, but he may resume when he returns to chutz la’aretz.

Question #2:

Does someone attending Yeshiva or seminary in Eretz Yisroel who observes two days of Yom Tov recite ve’sein tal umatar according to the custom of Eretz Yisroel or according to the chutz la’aretz practice?

The answer to this question will depend on which of the above-quoted authorities one follows. According to Opinion #1 (the Maharikash, the Radbaz) and Opinion #3 (the Birkei Yosef), they should follow the practice of Eretz Yisroel since they need the rain while here even though they are not (yet) permanent Israeli residents. According to Opinion #2 (the Pri Chodosh), if they are staying for less than a year, they follow the practice of chutz la’aretz, whereas if they are staying longer they should begin reciting it from the Seventh of MarCheshvan.

Question #3:

Reuven lives in Eretz Yisroel but is in chutz la’aretz on the Seventh of MarCheshvan (the day that in Eretz Yisroel they begin praying for rain). Does he begin reciting ve’sein tal umatar while in chutz la’aretz, does he wait until he returns to Eretz Yisroel, or does he follow the practice of those who live in chutz la’aretz?

According to Opinions # 1 and #2, he should follow the practice of those living in Eretz Yisroel, but for different reasons. According to Opinion #1, the reason is because he knows that he will return to Eretz Yisroel during the rainy season and therefore follows this approach. According to Opinion #2, since he left Eretz Yisroel for less than a year he is considered an Eretz Yisroel resident.

Although it would seem that the Birkei Yosef would hold that he should not recite ve’sein tal umatar until the bnei chutz la’aretz do, it is not absolutely clear that he would disagree with the other poskim in this case. One could explain that he only ruled that one follows the bnei chutz la’aretz if he is there for an extended trip but not if he is there for only a few weeks that happen to coincide with the Seventh of MarCheshvan. For this reason, when someone recently asked me this shaylah, I ruled that he should follow the practice of those dwelling in Eretz Yisroel. Subsequently, I found this exact shaylah in Shu”t Tzitz Eliezer (6:38) and was very happy to find that he ruled the same way I had. (However, Halichos Shelomoh 8:19 rules that he should recite ve’sein tal umatar in Shma Koleinu and not in Boreich Aleinu.)

Rashi (Breishis 2:5) points out that until Adam HaRishon appeared, there was no rain in the world. Rain fell and grasses sprouted only after Adam was created, understood that rain was necessary for the world, and prayed to Hashem for rain.  Whenever we pray for rain, we must always remember that the essence of prayer, and indeed the purpose for rain, is drawing ourselves closer to Hashem.

This article is somewhat more complicated than what I usually send out. Nevertheless, since questions about rabbinic infallibility are usually misunderstood and misinterpreted, I decided to send this article before Pesach.

Would You Like One Day or Two?

By Rabbi Yirmiyohu Kaganoff

On the evening of the first night of Chol HaMoed in Eretz Yisroel (corresponding to the eve of the second night of Yom Tov in chutz la’aretz), I received a curious phone call:

“Rabbi,” the female voice began, “I am calling on behalf of my friend, Rivkah.” After decades of rabbinic experience, I was convinced that this was the introduction to an embarrassing question. People often prefer pretending that they are asking for someone else — hiding behind the name “of a friend.” But this time I was wrong.

KIDDUSH OR HAVDALAH?

“Rivkah is a student at Bnos Aliyah Seminary and is uncertain whether she should keep one day of Yom Tov or two. A few weeks ago she visited a family for Shabbos and mentioned her predicament. The man of the house graciously told her that he answers halachic inquiries and ruled that she need keep only one day of Yom Tov. However, upon returning to Seminary, a teacher told Rivkah that she should not ask her shaylah from anyone, but must ask one of the seminary rabbis. Rivkah did so, and was told to keep two days. Subsequently, someone told her that she should not have asked the question a second time and must follow the first ruling she received. Now she is in a dilemma: should she observe the second day of Yom Tov or not? Is she supposed to find someone reciting Kiddush or Havdalah?”

Although most people do not have a Yom Tov issue as Rivkah did, they could still stumble into a similar predicament by asking any query from two different rabbonim. As I understood the shaylah, the answer to Rivkah’s query did not involve analyzing the laws of who must observe two days, but whether she must follow the first opinion or the second. Although the Gemara states that one may not ask the same shaylah twice, perhaps this only applies if someone received a strict ruling that he or she is now trying to overturn. But what happens if someone first received a lenient ruling, and then received a stricter response? In our instance, the first authority told Rivkah that she need keep only one day Yom Tov; most opinions consider this a lenient ruling since she now may perform melacha on the second day (Minchas Shelomoh 1:19:8). (For reasons beyond the scope of this article, Shu”t Chacham Tzvi #167 contends that keeping one day is the stricter ruling.)

In order to resolve Rivkah’s quandary, we need to discuss the following questions:

1. May one ask again after receiving a lenient answer?

2. If one did, and the second authority ruled strictly, whose reply is binding? Is she still bound by the first ruling, which was lenient, or the second, stricter ruling; or perhaps she should now ask a third authority for a final decision?

3. Was the teacher correct in directing her to ask a second shaylah after she already received a psak?

BACKGROUND INFORMATION

Before focusing on Rivkah’s predicament, we must first understand the general principles of the topic:

The Gemara (Avodah Zarah 7a) teaches that someone who asked a shaylah and received a strict ruling may not subsequently ask the question from a different authority. I will refer to this principle as hanishal lachacham, based on the opening words of the Gemara’s statement (“One who asked a Torah scholar”).

Tosafos (Avodah Zarah 7a s.v. hanishal) inquires, “May one never question the rav’s decision? Let the different authorities debate the issue and perhaps the second will prove to the original authority that his decision was incorrect?” Tosafos concludes that the Gemara only prohibits asking a second rav without notifying him that one has already asked the question. However, if one notifies the second authority that the question had already been asked, the second authority may oppose the decision if he considers it mistaken. Can he actually overturn the first ruling? This depends, as there are three levels of error:

CLEAR MISTAKE

I. If it is obvious to the second rav that the first rav erred, the second rav may inform the inquirer of the correct practice (Tosafos). This is true only if the first rav‘s ruling conflicts with accepted halachic practice or was based on inaccurate information (see Mishnah Bechoros 28b). In these instances, the first opinion is totally disregarded, since it is erroneous. Judaism does not accept a doctrine of rabbinic infallibility; on the contrary, the Gemara records several instances where great halachic authorities erred in specific halachic rulings (see Horiyos 2a). For example, Rabbi Tarfon ruled that a cow whose uterus was surgically removed is not kosher as it will die shortly. The Mishnah records that when it was demonstrated that an animal can survive this surgery satisfactorily, Rabbi Tarfon acknowledged his error (Mishnah Bechoros 28b).

PROVABLE ERROR

II. If the second rav feels he can prove that the first ruling was mistaken, but the ruling is not an obvious error, the second authority may not say anything directly to the inquirer. Instead, he should contact the first rav to prove that the ruling was flawed. In the true style of intellectual honesty required of a Torah scholar, the first rav should carefully examine the second rav’s approach to see if it has merit. It is now up to the first rav to decide whether to change his ruling (Shu”t Panim Meiros #2; cf. Shach, Yoreh Deah 242:58; Choshen Mishpat 25:14:17). If he still feels that his first interpretation is correct, or not proven to be in error, he should maintain his original position. According to some opinions, he may retract his position if he no longer feels it to be correct, even though he cannot prove it wrong (Levush, Yoreh Deah 242:31; Aruch HaShulchan, Yoreh Deah 242:60).

A similar situation could result if the second rav knows that well-accepted authorities rule differently from the way the first rav did, and he suspects that the first rav would accept their position (see Rosh, Sanhedrin 4:6). In this situation, too, the second rav may simply notify the first rav of the variant opinion and then it is up to the first rav to decide whether to rescind his original decision.

In all the cases we mentioned so far, the first rav’s ruling is retracted, either because it was clearly erroneous or because he himself withdrew it.

DISPUTE IN INTERPRETATION

III. If the second rav disagrees with the first rav’s conclusion, but cannot prove it incorrect, the second rav should say nothing to the questioner, who remains bound by the original decision. There is no halachic error here, but a diversity of outlook, and the first rav’s verdict cannot be overturned. Even if the first rav himself subsequently reconsiders his decision, most authorities contend that he cannot alter his own original ruling since the original approach cannot be disproved (Shach, Yoreh Deah 242:58 and Choshen Mishpat 25:14:17; Shu”t Panim Meiros #2; Divrei Chamudos, Chullin 3:24). (However, note that the Levush, Yoreh Deah 242:31, and the Aruch HaShulchan, Yoreh Deah 242:60, rule that he can change his mind. They feel that the second rav should engage the first rav in debate because this might change the first one’s mind.)

How long does the ruling remain binding?

The Rama (Yoreh Deah 242:31) rules that the rav’s decision is binding only on the specific instance just asked. However, if the same shaylah recurs, one may re-ask the shaylah from either the same or a different rav. The same rav himself, and certainly any other rav, may rule differently when the question recurs. Therefore, if someone asked whether one may perform a certain activity on Shabbos, was told that it is forbidden, and subsequently discovers that the consensus of poskim permits this activity, he may be lenient in the future. Similarly, a rav who ruled one way and subsequently discovered that most poskim dispute his conclusion, may conclude differently the next time he is asked this question.

WHAT IF THE FIRST SCHOLAR WAS LENIENT?

So far, we have assumed that the first rav decided strictly. What happens if the first rav ruled leniently, and the questioner would like to ask someone else? This issue is germane to Rivkah asking her seminary rabbi about observing two days of Yom Tov after the first rabbi permitted her to keep only one day.

The answer to this question depends on why one may not ask a shaylah from a second authority. Here are two reasons given:

Reason #1: CONSIDERING IT PROHIBITED

Most Rishonim contend that when submitting a question to a rav, the inquirer accepts the rav’s decision as binding and must then consider the item either permitted or prohibited (Raavad quoted by Ran; Rosh). This concept is called shavya anafshei chaticha di’issura, considering something as prohibited. I will clarify this principle with a case that I discussed in a different article.

A man believes himself to be a kohen, even though there was insufficient evidence for his assumption. Since most Jews are yisroelim and not kohanim, his halachic status is a yisroel, and he has none of the rights of a kohen — he may not duchen, redeem a bechor or receive the first aliyah to the Torah. However, since he considers himself a kohen, he must assume the stringencies that result from that esteemed status — he may not come in contact with corpses, nor marry a woman forbidden to a kohen. Since he believes that he is a kohen he is shavya anafshei chaticha di’issura, he must consider himself prohibited as if he is a kohen.

The Rishonim mentioned above maintain that asking a shaylah means accepting the rav’s opinion as binding halacha; if he rules stringently I must accept his verdict and therefore I may not re-ask the question. (The exceptions mentioned previously where the ruling can be retracted are because the decision is considered an error and therefore not a valid decision.)

This approach rules that the principle of hanishal lachacham applies only when the first rav ruled stringently. If he ruled leniently, I am permitted to follow his ruling, but not obligated to, and therefore I may re-ask the shaylah from a different rav (see Tosafos, Avodah Zarah 7a s.v. hanishal). Thus Rivkah may ask her shaylah from the seminary rabbi, notwithstanding the first ruling she received. We will soon discuss whether she is obligated to keep the second day of Yom Tov once she received this second ruling.

Reason #2: RESPECT FOR A TALMID CHACHAM

Other authorities explain that re-asking a shaylah from a second rav affronts the respect due the first rav by implying that one is questioning his competence (cited by Ran to Avodah Zarah. See there that he also quotes an additional reason.) This rationale forbids re-asking a question even if the first rav ruled leniently, as it is still offensive to the rav’s honor. Following this approach, Rivkah should not have asked the seminary rabbi once she already asked someone qualified to answer her shaylah.

SHOULD HER TEACHER HAVE TOLD HER TO ASK THE SHAYLAH AGAIN?

Certainly, her teacher should have asked her own shaylah whether to instruct Rivkah to ask her shaylah again.

Do any other differences result from the dispute as to why one may not re-ask a shaylah? Indeed there are.

A BRACHA DISPUTE

Many halachic issues are not matters of being strict versus lenient, but simply questions regarding correct procedure. For example, whether or not to recite a bracha in a certain instance, which bracha to recite, or whether to repeat a tefillah, are all instances where there is no “stricter” or “more lenient” side of the question. Both sides of the question involve a stringency, and therefore the principle of shavya anafshei chaticha di’issura is not applicable.

Those who ban re-asking a question because of shavya anafshei chaticha di’issura should therefore permit re-asking any question of this type in order to receive a more accurate or authoritative response. On the other hand, those who ban re-asking a question because it is offensive to a scholar’s honor should prohibit it in this instance too, since it implies a lack of competence on the part of the first rav asked.

Before resolving Rivkah’s dilemma, we need to explore one other fascinating point:

A DISPUTE BETWEEN THE TALMUDS?

When the Gemara Bavli (Avodah Zarah 7a) cites the prohibition of re-asking a halachic inquiry, it refers only to cases where the first rav answered stringently, but mentions no cases where the first rav ruled leniently. This implies that the Bavli explains the reason for this prohibition like the first approach – that one has accepted the prohibition of the rav.

However, the Yerushalmi (Shabbos 19:1) quotes the following anecdote:

Rabbi Simon permitted something, which Rabbi Ami subsequently prohibited. Rabbi Simon was upset; is it not said that if one sage permitted something, a second sage may not prohibit it?

This Yerushalmi appears to rule that one may not re-ask a question even if one received a lenient ruling, which is impossible according to the first approach. Thus, the Yerushalmi appears to understand that the reason one may not re-ask a question is the talmid chacham’s honor, the second approach cited. This would imply that the two Talmuds dispute the exact question upon which our dear Rivkah and her teacher stumbled!

The Rishonim prefer to avoid saying that the two Talmuds disagree, suggesting different approaches to resolve this contradiction.

AN ALTERNATIVE READING

Tosafos suggests reading the last statement of the Yerushalmi rhetorically, as opposed to being a support for Rabbi Simon’s position. The passage now reads:

Rabbi Simon permitted something, which Rabbi Ami subsequently prohibited. Rabbi Simon was upset. The Yerushalmi now questions the validity of Rabbi Simon’s reaction:

“Does it say anywhere that if one sage permitted something, a second sage may not prohibit it?”

Following Tosafos’ approach, the Yerushalmi rules, exactly as the Bavli implies, that the prohibition to re-ask a question applies only when the first scholar decided stringently. However, when he ruled leniently, a second scholar may rule freely on the case.

On the other hand, the Rosh explains the Yerushalmi as I explained originally, that Rabbi Simon objected to Rabbi Ami’s strict ruling as halachically objectionable after he (Rabbi Simon) had permitted the matter. The Rosh quotes this approach as definitive halacha, meaning that hanishal lichacham is prohibited because of the honor of the first rav. The Rosh appears to hold that both reasons are true, the Bavli emphasizes one reason, and the Yerushalmi the second. This approach maintains that one may indeed not seek out a second rav’s opinion (without telling him that one already asked someone), whether the first rav was lenient or strict.

How do we rule in this dispute?

Most halachic authorities rule that the law of hanishal lichacham applies only when the initial ruling was strict, but if it was lenient, one may indeed re-ask the shaylah (Shach, Yoreh Deah 242:59; Gra). According to this approach, there was nothing wrong with Rivkah re-asking her question.

However, there are some who rule, like the Rosh, that hanishal lichacham applies whether the initial ruling was strict or lenient and forbid re-asking a question even if one received a lenient ruling (Rama, Yoreh Deah 242:31).

CONCLUSION

Now that Rivkah already re-asked the question, must she keep one or two days of Yom Tov? According to those who rule that hanishal lichacham is because one has accepted the stringent opinion, once Rivkah re-asked the question she is bound to follow the second, stricter ruling. Since most authorities rule this way, one who re-asks the question from a second authority will be obligated to follow his opinion, if he is stricter. No matter how many people one asks, one will be always obliged to follow the strictest ruling. Thus, Rivkah should celebrate two days of Yom Tov.

The final psak Rivkah received only applies to the Yom Tov about which she asked. Before the next Yom Tov arrives, she may ask again whether to observe one day Yom Tov or two. May she direct her question to a particular rav, knowing what answer she wants to receive? That is a topic for a different article.

THE STORY

After successfully vanquishing the enemies of the Jewish people and solidifying his monarchy, Dovid HaMelech wants to find out if there are any surviving descendants of his predecessor and father-in-law Shaul, who was slain in battle with the Pelishtim. Dovid calls Tziva, a slave who has been managing Shaul’s properties, and inquires whether Shaul has any surviving offspring. Tziva informs Dovid that Yonasan, Shaul’s crown prince and Dovid’s closest friend, is survived by a lame and unscholarly son named Mefiboshes (not to be confused with a different Mefiboshes who was Shaul’s son, an outstanding Torah scholar, and a rebbe of Dovid’s [Berachos 4a]). Dovid meets Mefiboshes ben Yonasan and discovers that he is indeed a talmid chacham (Shmuel II 9:1-5; Rashi, Shabbos 56a s.v. bilo davar). Thus, Dovid could already discern that Tziva has a tendency to libel Mefiboshes.

Dovid meets Mefiboshes ben Yonasan, and invites him to join his royal household and to take all his meals with them. In addition, he awards him with the formal ownership of all of Shaul’s properties, thus making Tziva and all his slaves into Mefiboshes’ property. In a few moments, Mefiboshes has been returned to the wealth and honor appropriate to the royalty into which he was born.

Shortly thereafter, Dovid’s own fortunes take a dismal turn when his own son Avshalom instigates a rebellion, forcing Dovid and his supporters to flee for their lives from Yerushalayim as Avshalom’s forces seize the capital.

IS MEFIBOSHES A TRAITOR?

As Dovid flees Yerushalayim, Tziva arrives with a team of donkeys laden with provisions for Dovid’s men. In answer to Dovid’s inquiries about Mefiboshes’ whereabouts, Tziva responds: “Behold, he remains in Yerushalayim, saying that now the Bnei Yisroel will coronate me, the scion of the true royal family, as their king.” In other words, Mefiboshes feels that the Jews would prefer to restore the house of Shaul to the throne and abandon the infighting of Dovid’s fratricidal family (Metzudos David, Shmuel II 16:3). In reaction to Tziva’s report of Mefiboshes’ treachery, Dovid awards Tziva the property of Shaul that he had previously given to Mefiboshes (Shmuel II 16:1- 4). If Mefiboshes has indeed rebelled, Dovid has the legal right to confiscate his property (see Rashi, Shabbos 56a s.v. dvarim).

Was it correct for Dovid to grant Shaul’s estate to Tziva?

Although Dovid has the right to be concerned that Tziva’s account might have some basis, the Gemara quotes a dispute (soon to be analyzed) whether he was permitted to assume the story to be true. Acting out of concern is permitted and is halachically termed being chosheish (suspecting) that a story may be true (Niddah 61a). One may react defensively to even an unsubstantiated story in order to protect one’s interests in the event that the story is true. However, accepting the story as definitely true and following up on that assumption violates the laws of loshon hora. One may not take definitive action, such as seizing property, as a result.

Thus, accepting Tziva’s account without sufficient proof seems to violate two serious prohibitions: (1) betzedek tishpot amisecha, judging people favorably, and (2) kabbalas loshon hora, believing loshon hora!

These issues become even tougher when we recall that Dovid had already experienced Tziva’s maligning of Mefiboshes in a previous conversation. This was when Tziva reported to Dovid that Mefiboshes was unscholarly, and Dovid consequently discovered that Mefiboshes was a talmid chacham of stature. Furthermore, we know that Tziva had ulterior motives to unseat Mefiboshes from his place of honor. So how could Dovid act as if Tziva’s story was certainly true?

Before trying to understand Dovid’s actions, we will return to the chronicle of Avshalom’s revolt.

AVSHALOM’S DEFEAT

For a while, it appears that Avshalom will indeed wrest power from his father and establish himself as king. However, Dovid’s forces decimate Avshalom’s troops in battle. Avshalom himself is ignominiously trapped. While riding a mule, his hair becomes tangled in the branches of a tree and he is left swaying above ground as his mule continues without him. Yoav, Dovid’s commanding general, and his entourage dispatch Avshalom while he is hanging in midair.

MEFIBOSHES APPEARS

Upon Dovid’s triumphant return to Yerushalayim, a very unkempt Mefiboshes welcomes him. He has not trimmed his mustache, washed his legs, nor laundered his clothes since Dovid fled Yerushalayim (Shmuel II 19:25, as explained by Targum).

Dovid asks Mefiboshes why he failed to join Dovid’s men in their flight from Yerushalayim (Shmuel II 19:25- 26). After all, since Mefiboshes had been eating daily at Dovid’s table, remaining behind when Avshalom assumes control could be highly dangerous (Malbim ad loc.)!

Mefiboshes replies: “My lord the king, my slave tricked me by telling me that he would saddle the donkey so that I could join the king – for I am lame; while he (my slave) slandered me to my lord, the king. My lord, the king, is as an angel of G-d, and should do as he sees fit. For all the members of my father’s household were guilty of the death penalty (for crimes we performed in Shaul’s service) yet you honored me to dine at your table. What right do I have to ever complain to the king?” (Shmuel II 19:27- 29)

MEFIBOSHES’ LEGAL DEFENSE

Dovid is faced with a puzzling dilemma: If Tziva is correct; Mefiboshes is an ungrateful, scheming traitor. If Mefiboshes is correct, Tziva is the worst type of slanderer. One of them certainly deserves punishment; the question is which? Dovid is in the unenviable position of trying to determine which of them is guilty. Is there any way to resolve this dilemma?

Does circumstantial evidence imply who is guilty? Let us examine:

1. Although Mefiboshes’ alibi seems reasonable, certain aspects of it are weak. For one thing, it does not explain his untidy appearance when he came to greet Dovid. How could he appear before the king without first bathing, trimming his mustache and washing his clothes! Although he claimed to still be mourning Dovid’s flight from Yerushalayim, he should have tidied himself in Dovid’s honor. Not doing so implies that he is mourning Dovid’s successful return! (Rashi, Shabbos 56a s.v. dvarim)

2. When questioned by Dovid as to why he remained in Yerushalayim under Avshalom, Mefiboshes responds, “My slave tricked me by telling me that he would saddle the donkey so that I could join the king – for I am lame. And he (Tziva) slandered me to my lord.” Granted that Tziva tricked Mefiboshes and took the donkeys with him, how could Mefiboshes know that Tziva has been slandering him? If Mefiboshes was indeed abandoned in Yerushalayim when Tziva took the mounts, he would have no idea what transpired after that point (Binayahu). Unless, of course, he actually had done or said something scandalous in Tziva’s presence…

Although the evidence against Mefiboshes is not ironclad, it does leave a dissatisfying sense that he is not telling the whole story. Later in the article, I will present another piece of evidence against Mefiboshes.

DOVID’S RULING

Who should Dovid believe? Either Tziva is telling the truth, in which case Mefiboshes is a traitor and should certainly not be granted ownership over his late grandfather’s property, or Tziva is lying, in which case he is a lowlife, and should certainly not be granted any new properties as reward!

What does Dovid do? He announces that Mefiboshes and Tziva should divide Shaul’s estate!

It is difficult to comprehend why Dovid divided the property between them–

TALMUDIC INSIGHTS

At this point, we will study the Gemara’s comments on this enigmatic story. The Gemara cites a dispute between Rav and Shmuel concerning Dovid’s actions. Rav states that Dovid violated the Torah’s prohibition of believing loshon hora, whereas Shmuel protests that Dovid was innocent (Shabbos 56a).

Why does Shmuel consider Dovid innocent? Does not confiscating the property show that he assumed Mefiboshes guilty without proof, which constitutes believing loshon hora?

Shmuel explains that Dovid had adequate anecdotal verification (dvarim hanikarim) indicting Mefiboshes for treason. Although this is not evidence that a beis din could use for a ruling, since Dovid was judging as a king, and not as a beis din, he could base his decision on substantive circumstantial evidence (Be’er Mayim Chayim, Hilchos Loshon Hora 7:22).

There is a difficulty with this approach: If indeed Dovid was justified to consider Mefiboshes guilty, why did he divide the properties between Tziva and Mefiboshes. If Mefiboshes is guilty, Dovid should confiscate all the property, and if Mefiboshes is innocent, he (Mefiboshes) should keep it all. What does Dovid accomplish by depriving him of half and awarding it to Tziva?

The Maharsha offers an original approach to resolve this conundrum. Although Dovid felt his evidence against Mefiboshes was sufficient, he realized that he would never be able to prove absolutely whether Mefiboshes was a treacherous schemer or not. Therefore, Dovid treated the case as an unresolved issue — and divided the property between the two parties, knowing that one of them was receiving a highly undeserved reward.

The Maharsha then continues by explaining the next passage of this Gemara: When Dovid informed Mefiboshes that he was being deprived of half the estate, Mefiboshes reacted with tremendous fury, saying, “I just finished telling you that I was eagerly awaiting your return to the city in peace, and this is how you treat me? My complaints are not against you as much as they are against He who returned you in peace!”

The Maharsha concludes that Mefiboshes’ sacrilegious outburst sealed Dovid’s decision, demonstrating that Mefiboshes was not as faithful as he claimed. If indeed, he had been mourning Dovid’s flight, his happiness at seeing Dovid restored to his throne should have been great enough not to criticize Dovid for any wrongdoing. Indeed his outburst demonstrates that Tziva was indeed correct and that Mefiboshes was simply performing lip service.

(This last approach presents us with an unresolved problem. Dovid had already divided the estate between Mefiboshes and Tziva. If he now had further evidence of Mefiboshes’ treachery, why did he not therefore award the entire estate to Tziva? There are several possible ways one can attempt to resolve this difficulty.)

A DISPUTING OPINION

Until now, I have presented Shmuel’s approach that Dovid did not violate the laws of loshon hora. Rav disagrees, contending that Dovid violated halacha by accepting Tziva’s story; Dovid had no right to assume that Mefiboshes had done anything wrong and he therefore should not have confiscated any property.

HALACHIC QUESTION

There are two ways to explain Rav’s position, with a major halachic difference between them. Does Rav disagree with the entire principle of accepting loshon hora when one has adequate circumstantial evidence? Alternatively, does Rav accept this principle, but dispute its application in this case. He feels that Dovid “convicted” Mefiboshes without sufficient evidence – thus violating the prohibition against accepting loshon hora.

Which of these two approaches is correct? Can we accept circumstantial evidence in halacha, or does this violate the laws of loshon hora?

This question not only concerns a judge or king, but also often affects each one of us. May we assume that someone we see behaving wrongly indeed sinned when the evidence indicates this, or do the mitzvos of not accepting loshon hora and judging favorably require positive evaluation even under these circumstances?

Many authorities conclude that if one sees absolutely convincing, circumstantial evidence one may assume that it is true (Sefer Yerayim #192; Smag, Lo Saaseh #10; Hagahos Maimoniyos, Dei’os 7:4; Magen Avraham 156:2). Others contend that we may not judge someone unfavorably unless we know for certain that he sinned and one may never rely on circumstantial evidence to believe loshon hora (Menoras HaMaor, Loshon hora Chapter 18; Bris Moshe commentary to Smag, Lo Saaseh 10:5, explaining Rambam).

According to either interpretation of Rav’s opinion, Dovid should have rejected Mefiboshes’ guilt, and therefore confiscating his property was unjustified. Consequently, the dividing of his royal legacy, the Jewish monarchy, personally punished Dovid. As we know, ten of the twelve tribes seceded from Dovid’s grandson, King Rechavam. The king appointed by the break off tribes, Yeravam, later became concerned that his people might make pilgrimages to the Beis HaMikdash, and therefore established temples in his realm as alternative worship centers (Melachim I 12:28. Note that the commentaries there dispute whether these temples were initially avodah zarah or only became avodah zarah later.) Although this idolatry initially affected only the ten northern tribes, its nefarious influence eventually spread to the two southern tribes of Yehudah and Binyomin. Eventually, this idol worship caused the destruction of the Beis HaMikdash, as Rav concludes in his statement:

“At the moment that Dovid said, ‘You and Tziva shall divide the property,’ a heavenly voice told him, ‘Rechavam and Yeravam will divide the monarchy.’… Had Dovid not accepted the loshon hora, Dovid’s royal monarchy would never have been divided, the Jews would never have worshipped idols, and we would never have been exiled from our land.”

This quotation reflects Rav’s opinion. As mentioned above, Shmuel contends that Dovid was correct and that Rav’s blaming Dovid’s contribution to the resulting tragedies is unfounded.

What lessons do we learn from this tragedy? On a halachic level, Shmuel derives from this discussion that when there are dvarim hanikarim, strong circumstantial evidence, there is no requirement to judge someone favorably. From Rav’s perspective, we derive an almost opposite lesson: that although Dovid certainly felt he has sufficient basis to “convict” Mefiboshes, he erred, and his error, albeit only a negligent mistake, caused terrible results.

We all know the enmity that believing loshon hora can cause. If we all emphasize judging favorably we will certainly assist the reconstruction of the house of Dovid in Yerushalayim!

“My daughter came home from school telling us that she was taught that we cannot make deviled eggs on Shabbos because adding mustard and shaping them is considered ‘kneading’ the yolks. But I remember my mother always mixed hard boiled eggs with minced onion and oil on Shabbos morning shortly before the meal. Could my mother have been wrong?”

As our readership is aware, the Torah prohibits melachos on Shabbos not because they are taxing, but because these activities are significant and important (Gemara Bava Kamma 2a). As the Yerushalmi relates, after toiling for three and a half years to understand all the prohibited activities of Shabbos, Rabbi Yochanan and Reish Lakish concluded that each of the 39 major melachos (avos) has at least 39 sub-categories, called tolados, which are also prohibited min haTorah (Yerushalmi, Shabbos, beginning of 7:2). As is clear from the passage, these eminent scholars realized that the Torah prohibited these types of significant activity. As Rav Shamshon Raphael Hirsch notes, the Torah does not prohibit avodah, which connotes hard work, but melacha, which implies purpose and accomplishment (Commentary to Shemos 20:10).

One of the melacha activities prohibited on Shabbos is losh, kneading (Mishnah Shabbos 73a). Although building the Mishkan did not involve kneading dough, dying the cloth used in its construction required kneading a thick paste (see Rashi, Shabbos 73a and Gemara Shabbos 156a). (Some Rishonim contend that we derive forbidden melachos also from activities performed for the service of the Mishkan and the Beis HaMikdash, and not only from the Mishkan’s construction. According to these opinions, the melacha of kneading could be derived from the meal offerings of the Mishkan that involved the kneading of dough [Rav Hai Gaon, quoted in introduction to Maasei Rokei’ach].)

WHAT IS LOSH?

The concept of losh is to combine fine powders or similar small items into a unit by adding liquid (Shevisas HaShabas). Thus, mixing clay for pottery, or cement and sand into concrete, violate the Torah prohibition of losh (see Rambam, Hilchos Shabbos 8:16; Rashi, Shabbos 74b). Similarly, mixing oatmeal or reconstituting instant mashed potatoes violates the Torah prohibition of losh (in addition to whatever prohibitions of cooking may be involved).

Similarly, preparing certain food items on Shabbos might fall under the rubric of losh. For example, the Gemara discusses how one may mix bran with water to feed one’s animals. Although bran and water do not form dough, this is nevertheless prohibited since the bran sticks together (Shabbos 155b).

The Tannayim dispute whether one may add water to bran on Shabbos to feed one’s animals, Rebbe prohibiting because he feels that this constitutes a Torah violation of losh, whereas Rabbi Yosi ben Rabbi Yehudah maintains that adding water to bran involves only a rabbinic prohibition and is permitted in order to feed one’s animals if performed in an indirect way. This introduces a new concept in the laws of losh – that one may perform a rabbinically prohibited activity in an indirect way in order to prepare food or feed on Shabbos (Shabbos 155b- 156a). Performing a prohibited activity in an indirect way is called a shinui or kil’achar yad (literally, using the back of one’s hand), and is usually prohibited miderabbanan. However, under extenuating circumstances, Chazal relaxed the prohibition.

Losh applies only when mixing fine items that stick together to form a unit. It does not apply when adding liquid to large items even if they stick together, since they do not combine into one item (Taz, Orach Chayim 321:12). Therefore, one may use oil or mayonnaise to make a potato salad or tuna salad on Shabbos if the pieces of potato or tuna are large enough to prevent the salad appearing like a single mass.

BATTER VERSUS DOUGH

The Gemara implies that there is a halachic difference between a belilah rakkah, the consistency of batter, and belilah avah, the consistency of dough. By batter we mean a mix that does hold together, so it is not a liquid, yet is fluid enough that one can pour it from one bowl to another (Chazon Ish, Orach Chayim 58:9). Creating a batter involves only a rabbinic violation, whereas mixing a consistency like dough, which is thick enough that one cannot pour it, has stricter rules, often involving a Torah violation.

If the mix does not hold together at all, then one may mix it without any concerns because it is considered a liquid (Chazon Ish, Orach Chayim 58:9).

DEVILING THE EGGS

Based on the above discussion, it would appear that one may not mix egg salad or deviled eggs on Shabbos without a shinui, and possibly not even with a shinui. The mix created when making these foods cannot be poured, and therefore does not qualify as a “batter” but as “dough,” which may entail a Torah prohibition of mixing on Shabbos. We may usually not perform Torah prohibitions with a shinui on Shabbos to prepare food.

However, a standard appetizer in many parts of Europe for the Shabbos day meal was to stir together hard-boiled eggs, minced onion and schmaltz, a dish called “eggs and onions” that required preparation immediately before serving. Was it permitted to mix “eggs and onions” on Shabbos or did it violate the prohibition against kneading on Shabbos since the finished product was mashed egg and onion held together with fat? Although it would seem to be prohibited to prepare this food on Shabbos, this food was commonly prepared every Shabbos morning prior to serving. Does this mean that all these observant Jews were violating the Torah’s command? When we consider that this was the standard appetizer eaten by thousands of Jewish households every Shabbos for hundreds of years, it is difficult to imagine that millions of eggs and onions were prepared in violation of the laws of Shabbos!

Several halachic authorities raise this question, providing a variety of approaches to explain why one may blend eggs and onions on Shabbos. Could the reason to allow this apply to contemporary devilled eggs or egg salad?

Some contend that this mixing was permitted only when the pieces of egg and onion were both large enough to prevent the mix from having a dough-like consistency, but rather looked more like large pieces stuck together. However, the prevalent approach was to chop the eggs and onions into a very fine consistency, in which case the above-mentioned leniency was not applicable.

Other authorities permitted mixing and stirring them together only with a shinui, although apparently the prevalent custom was to mix it without any shinui at all.

RAV SHELOMOH KLUGER’S APPROACH

Rav Shelomoh Kluger, a great luminary of Nineteenth Century Poland, proposed a highly original reasoning to legitimize the preparing of the eggs and onions on Shabbos. Regarding various halachos of the Torah, predominantly the laws of tumah and taharah, only seven substances are considered liquids — wine, blood, olive oil, milk, dew, honey and water. Rav Kluger contended that the halachos of losh are also dependent on the use of one of these seven liquids to create the “dough” (Shu”t HaElef Lecha Shelomoh, Orach Chayim #139). According to this novel approach, no losh prohibition is involved if one uses mayonnaise or any oil other than olive oil, nor if one makes dough on Shabbos using only juice other than grape juice.

We should note that following this line of reasoning, not only may one prepare the famous eggs and onions mixture, but one could also prepare devilled eggs or egg salad on Shabbos provided one does not use olive oil as the liquid. Although some may prefer use of olive oil for its cholesterol and other medical benefits, this would not justify violating the laws of Shabbos.

However, Rav Kluger’s approach is not without its detractors. For one thing, as he himself points out, his approach disputes the statement of a highly-respected earlier authority, the Pri Megadim (Mishbetzos Zahav 321:12), who contends that losh is violated when one mixes foods together with goose schmaltz (a common ingredient in European homes in his era). This demonstrates clearly that any substance that causes items to stick together violates losh, at least according to some widely-accepted opinions. For the most part, later authorities have not accepted Rav Kluger’s contention limiting losh to the “seven liquids.”

Rav Shelomoh Kluger applied a second reason to permit the preparation of eggs and onions on Shabbos. He theorized that losh only applies to the earth itself or to items that grow from the ground — thus precluding eggs from the prohibition of losh. Although this approach only resolves the losh consideration germane to the eggs in the mixture but not to the onions, Rav Kluger further contended that the onions are also exempt from losh since the eggs are the main ingredient. He maintained that when mixing several items, of which losh applies only to some, halacha considers only the major ingredient and ignores the rest (Shu”t HaElef Lecha Shelomoh, Orach Chayim #139).

This second approach of Rav Shelomoh Kluger is also not without its detractors. Both the contention that losh applies only to items that grow from the ground, and the further supposition that one ignores the lesser item are challenged by later authorities (see Tzitz Eliezer 11:36:3, quoting Yad Yosef).

OTHER APPROACHES

Other reasons are quoted to permit making “eggs and onions” on Shabbos, including a suggestion that there is no losh prohibition to stir in an ingredient added for taste even if it indeed causes the food to hold together. (This position is quoted by the Tzitz Eliezer 11:36 in the name of a great scholar; however, the Tzitz Eliezer rejects the argument.) According to this approach, one might argue that one may make deviled eggs on Shabbos since the mustard is primarily added for flavor, although one could argue alternatively that one’s intent is to create a consistent filling, which is losh.

Others permit the mixing of eggs and onions because they do not form into a gush, that is, a single unit (Shu”t Be’er Moshe 6:44). According to this reasoning, deviling eggs is forbidden since one is indeed forming units of seasoned mashed egg yolk.

RAV SHELOMOH ZALMAN AUERBACH’S APPROACH

Rav Shelomoh Zalman Auerbach presented a different reason to permit mixing “eggs and onions” on Shabbos, which requires a small introduction. At the time of the Gemara, neither Post nor General Mills had yet cornered the market on breakfast cereal, and people were forced to prepare their own breakfast. The Cheerios of the day involved mixing a specialty flour called kali, made from toasted kernels, with oil, water and salt. The Gemara quotes an opinion that permits mixing kali on Shabbos provided one uses a minor shinui while doing so (Shabbos 155b). Several authorities question why the Gemara is so lenient in this instance (Nishmas Odom; Biyur Halacha). Allow me to explain the basis of their concern:

Usually, a shinui may be used on Shabbos in only one of two circumstances:

1. To prepare food that without the shinui involves only a rabbinic prohibition.

2. To prepare the food in a radically different way than it is usually prepared. An example of the latter method is that although one may not chop items fine on Shabbos, one may crush them with the handle of a knife. Since this is a radical departure from the usual method of mashing items with mortar and pestle or other grinding implements, Chazal permitted crushing food this way (Shibolei HaLeket #92, based on Gemara Shabbos 141a).

Thus we are faced with the following anomaly: The Gemara permits mixing kali on Shabbos, seemingly permitting a Torah prohibition of losh by means of a minor deviation from the normal method of preparing this food. This should not be permitted on Shabbos.

The Biyur Halacha responds to this question with two different novel approaches to explain why this is permitted:

1. Mixing a food that is already cooked or toasted and ready to eat does not violate the prohibition of losh. Since these kernels are not used for bread, but are ready to eat after mixing them, this mixing is not considered the prohibited melacha of losh, but is to be treated no different min haTorah from any other preparing of food. Although Chazal prohibited this preparation because it looks like kneading, it is permitted with a shinui as are many other food preparations.

2. The Biyur Halacha suggests an alternative approach: there is no violation of losh while one is eating. This is similar to a concept found by other melachos, notably selecting and grinding, that permits performing these activities immediately before consuming them.

This approach has its detractors, since no early authorities note that this lenience applies to losh, and logically there is a big distinction between selecting and grinding, which are processes that are absolutely essential to normal eating, and kneading, which is not essential (see Magen Avraham 321:24).

RETURNING TO EGGS AND ONIONS

Based on both approaches of the Biyur Halacha, Rav Shelomoh Zalman Auerbach notes that preparing eggs and onions should be permitted because this food cannot be prepared before Shabbos and will become ruined if not prepared shortly before eating. (A similar approach to explain the custom of mixing eggs and onions is presented by an earlier authority, the Tehillah LeDavid 321:25).

In addition, Rav Shelomoh Zalman Auerbach reasons that losh is a process that one does while eating since one mixes food together in one’s mouth (Shulchan Shelomoh 321:16). This author does not understand the last statement of Rav Shelomoh Zalman Auerbach, since the processing of food that takes place in one’s mouth, chewing, reduces food to small particles and does not combine small particles into larger ones, which is the essence of losh.

According to Rav Shelomoh Zalman Auerbach’s approach, preparing “eggs and onions” requires a shinui, meaning that one should add the ingredients to the bowl in an inverted order than one usually does, and should also preferably stir the mix in an unusual fashion, such as not in normal circular strokes but with alternative crisscross motions instead.

However, the approaches mentioned earlier permit mixing eggs and onions without any shinui at all. When reading later halachic works, one finds many poskim who feel that one should avoid preparing eggs and onions on Shabbos, and at a minimum certainly not without a shinui, whereas others are suspicious of those who question such a time-hallowed practice (Be’er Moshe; Tzitz Eliezer).

It is also noteworthy that the first approach presented by the Biyur Halacha should permit not only the famous “eggs and onions” that were an essential part of Jewish cuisine for hundreds of years, but also preparing either egg salad or deviled eggs on Shabbos. Furthermore, according to the second approach one would be permitted to prepare them immediately before the meal just as one may select immediately before the meal. In both instances, one would need to use a shinui of mixing the ingredients in a different order and not stirring with the usual circular motions.

Where does that leave our deviled eggs or egg salad on Shabbos? As in all areas of halacha, one should consult with one’s posek how to prepare these items on Shabbos. The goal of this discussion is to present the background of the halachic issues that form the basis for the varying piskei halacha on this issue.

The Torah commanded us concerning the halachos of Shabbos by giving us the basic categories that are prohibited. Shabbos is a day that we refrain from altering the world for our own purposes but instead allow Hashem’s rule to be the focus of creation by refraining from our own creative acts (Rav Shamshon Raphael Hirsch’s Commentary to Shemos 20:10). By demonstrating Hashem’s rule even over non-exertive activities such as kneading, we demonstrate and acknowledge the true Creator of the world and all it contains.

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.

“To overcome the many problems that may be involved in purchasing products during shmittah, we want to purchase a large aeroponics kit and grow our own vegetables. Will this present us with any halachic problems in terms of either the laws of shmittah, or the laws of kilayim?”

And so I began my education about this subject. This is what I discovered:

Aeroponics is a method of growing vegetables or herbs without soil by spraying the plant roots with water and nutrients (as opposed to hydroponics where the roots are submerged in a nutrient solution). Although it can be done on a commercial scale, the company Yehudah contacted sells aeroponic kits for growing herbs and vegetables in the comfort of one’s home. Each kit includes the seeds and nutrients required for specific types of plants, a complete self-contained open-top growing tank that includes its own light fixtures, and instructions on how to make it all work. Just add water and electricity to run the pump and lights.

The company advises growing lettuce, herbs, tomatoes, peppers, or strawberries each in its own tank since they have quite different needs. Even so, it is possible that one might plant different varieties or species that are halachically kilayim close enough together to involve a shaylah of kilayim.

WHAT IS KILAYIM?

It is important to clarify a common misconception. The prohibition of kilayim is not the creation of a new species; it is the mere appearance that one is mingling two species together. This is why hauling loads with two species of animal, grafting different tree species together, mixing wool and linen in a garment, or planting grains in a vineyard, are all Torah violations of kilayim although these acts do not affect the genetic make-up of the species.

Yehudah’s question involves two halachic topics:

I. Kilayim

Could his desktop garden possibly violate the mitzvah of kilei zera’im, which prohibits planting two species together or near one another? Violating this prohibition requires three basic conditions, all of which Yehudah met:

A. The prohibition applies to herbaceous, as opposed to woody plants, meaning that it does not apply to trees and shrubs, but it does apply to vegetables and many herbs. Thus, one may plant seeds of different trees together, yet one is forbidden to plant a mix of vegetable seeds (Rambam, Hilchos Kilayim 1:6).

B. The prohibition of kilei zera’im applies only to edible crops (Rambam, Hilchos Kilayim 1:4). Thus, one may plant seeds of different ornamental flowers and grasses within close proximity.

C. It applies only in Eretz Yisroel (Gemara Kiddushin 39a), and is min haTorah according to most halachic authorities even today (implied by Rambam, Hilchos Kilayim 1:1). (However, note that Rashi [Shabbos 84a] contends that kilei zera’im is prohibited only midirabbanan, and Tosafos [Yevamos 81a s.v. mai] contends it is only rabbinic in our era because most of the Jewish people do not currently live in Eretz Yisroel.) Therefore, someone in Chutz La’Aretz may plant his backyard garden with a wide variety of herbs and vegetables without any concern for how close they are, whereas in Eretz Yisroel, someone planting a garden patch must be very careful to keep the different species separate (Rambam, Hilchos Kilayim 1:3). I will discuss later how far apart one must plant two species to avoid violating this prohibition (see Chazon Ish, Hil. Kilayim 6:1).

II. Shmittah

One may not plant in Eretz Yisroel during shmittah. Does planting this indoor garden in Eretz Yisroel violate the laws of shmittah?

Yehuda’s question requires analyzing the following subjects:

Do these mitzvos apply when planting indoors?

Would they apply when planting outdoors in a pot or planter that is disconnected from the ground?

Do they apply when one is not planting in soil?

INDOORS

Two Talmudic passages discuss whether agricultural mitzvos apply indoors. One occurs in Eruvin (93a), which prohibits planting grain in a vineyard planted underneath a roof that extends from a house. This passage implies that agricultural mitzvos apply within physical structures.

On the other hand, Talmud Yerushalmi (Orlah 1:2) discusses whether three agricultural mitzvos, orlah (the prohibition to use fruit produced in the first three years of a tree’s life), maaser (tithing produce), and shmittah, apply to indoor plants. The Yerushalmi rules that whereas orlah applies, there is no requirement to separate maaser on produce grown indoors. The Yerushalmi questions whether shmittah applies to indoor produce, but does not clearly conclude whether it applies or not.

WHY IS ORLAH DIFFERENT FROM MAASER?

The Yerushalmi notes that when the Torah instructs us to separate maaser, it states: You shall tithe all the produce of your planting, that which your field produces each year (Devarim 14:22). Since the Torah only requires maaser on produce of a field, there is no requirement to separate maaser from what grows indoors, since, by definition, a field is outside. Therefore, one need not separate maaser min haTorah when planting inside a structure even if one is planting directly in the soil floor of the structure. (The Rishonim dispute whether there is a rabbinic requirement to separate terumos and maasros when planting in the ground within a building, see Rambam and Raavad, Hilchos Maasros 1:10.)

However, when the Torah describes the mitzvah of orlah, it introduces the subject by stating When you will enter the Land (VaYikra 19:23). A tree planted indoors is definitely in the Land of Israel, and thus is included within the parameters of this mitzvah, even if it is not considered a field.

SHMITTAH INDOORS

Do the laws of shmittah apply to produce grown indoors? Does shmittah apply only to a field, or to anything planted in the Land of Israel?

The Yerushalmi notes that when the Torah discusses the mitzvah of shmittah, it uses both terms, land (VaYikra 25:2) and field (VaYikra 25:4). It is unclear how the Yerushalmi concludes and the poskim dispute whether the mitzvah of shmittah applies indoors in Eretz Yisroel. Ridbaz (Hilchos Shvi’is end of Chapter 1), Chazon Ish, Shvi’is 22, and Pnei Moshe all rule that it does; Pe’as HaShulchan (20:52) rules that it does not. Most later authorities conclude that one should not plant indoors during shmittah, at least not in the soil. I will discuss shortly whether one may plant during shmittah indoors hydroponically or with a covered floor.

INDOOR KILAYIM

May one plant different species next to one another indoors? Does the prohibition of kilayim apply to produce planted under a roof?

Based on the Talmud Yerushalmi we quoted above, we should be able to establish the following rule:

Where the Torah commands that a mitzvah applies to the land, it applies whether the planting is indoors or outdoors, whereas when the Torah commands that a mitzvah applies to a field¸ it does not apply indoors. As noted above, an indoor area can never be called a field.

How does the Torah describe the mitzvah of kilei zera’im? The Torah states “you shall not plant kilayim in your field” (VaYikra 19:19), implying that the mitzvah does not apply indoors. Thus, we should conclude that there should be not prohibition min haTorah in planting herbs or vegetables proximately if they are indoors. (Nevertheless, both the Yeshuos Molko [Hil. Kilayim 1:1] and the Chazon Ish rule that kilei zera’im does apply indoors and apparently disagree with the above analysis. I will take this into consideration later.) However, it is probably prohibited midirabbanan according to the Rambam’s opinion that the Sages required tithing produce grown indoors.

BUT…

At this point, the discerning reader will note a seeming discrepancy based on the Talmudic passage that I cited earlier. The Gemara rules that one may not plant grain in a roofed vineyard, implying that kilayim does apply indoors. This seemingly conflicts with my conclusion that one may plant different herbs or vegetables proximately indoors without violating the prohibition of kilayim.

THE SOLUTION: GRAPES VERSUS VEGETABLES

The answer is that there is a major halachic difference between the two cases: Planting grain in a roofed vineyard violates kilei hakerem, planting other crops in a vineyard. Although both kilei hakerem and kilei zera’im are called kilayim, kilei hakerem is a separate mitzvah and is derived from a different pasuk than kilei zera’im, planting herbaceous species together. The Torah commands us about kilei hakerem by stating: “You shall not plant your vineyard with kilayim (Devorim 22:9), using the word vineyard, not field. Whereas a field cannot be indoors, the Gemara teaches that a vineyard could be.

At this point, we have resolved the first of our questions asked above:

“Do these mitzvos apply when planting in a covered area?”

The answer is that planting kilayim species should seemingly not apply, although some prominent authorities disagree. Shmittah does apply according to most poskim.

FLOWERPOTS

We now progress to our next question:

Do agricultural mitzvos apply to plants growing in closed pots and planters in Eretz Yisroel that are separated from the ground and yet exposed to the elements?

The Mishnah (Shabbos 95a) teaches that someone who plants in a flowerpot that has a hole in its bottom, called an atzitz nakuv, violates Shabbos as if he planted in the earth itself. However, planting in a flowerpot that is fully closed underneath, called an atzitz she’aino nakuv, is forbidden only because of rabbinic injunction and does not involve a Torah-prohibited violation of Shabbos. The same categories usually apply to other agricultural mitzvos: plants in a pot with a hole in the bottom are equivalent to being in the ground itself; those whose bottom is completely sealed are included in agricultural mitzvos by rabbinic injunction.

Therefore, one must separate terumah and maaser from produce grown in pots or planters, whether or not the containers are completely closed underneath, and one would violate kilayim if one planted two species together.

(There are some exceptions to this rule. According to the Rambam [Hilchos Maaser Sheni 10:8] and Shulchan Aruch [Yoreh Deah 294:26], orlah applies min haTorah to a tree planted in a closed flowerpot. The reason for this phenomenon is that a tree root will, with time, perforate the bottom of its pot, and therefore it is already considered to have a hole and be part of the ground below. There are also poskim who contend that shmittah does not apply at all, even midirabbanan, to items planted in a planter or flowerpot whose bottom is completely closed.)

SHMITTAH IN A HOTHOUSE

What happens if you plant in a covered area in a pot that is completely closed underneath? May one be lenient since the pot is both indoors and is also an atzitz she’aino nakuv, which is not considered connected to the earth min haTorah? This question leads us directly to the following question that Israeli farmers asked about sixty years ago: May one plant in a hothouse during shmittah in a closed bottom vessel? As I mentioned above, although some authorities permit planting in the soil indoors during shmittah, the consensus is to be more stringent. However, many poskim permit planting in pots in a hothouse if its floor is covered with a thick material, such as heavy plastic or metal (see Chazon Ish, Shvi’is 26:4; Mishpatei Aretz pg.239; however, cf. Shu”t Shevet HaLevi who prohibits this).

AEROPONICS AND SHMITTAH

Based on the above discussion, we may conclude that most authorities contend that there is no shmittah violation to plant aeroponically provided that the bottoms of the tanks are metal or plastic.

We still need to explore whether desktop planting may violate the laws of kilei zera’im?

I concluded above that there is probably only a rabbinic prohibition of kilei zera’im on indoor planting, but that some prominent authorities prohibit it min haTorah. Can we offer a solution for Yehudah’s plans? To answer this we need to address another issue.

KEEP YOUR DISTANCE

As I mentioned in the beginning of this article, kilayim occurs when different species are mingled together. If there is enough distance between the plants, there will clearly be no mingling.

How far apart must I plant herbs or vegetables to avoid violating kilayim? The poskim dispute this issue, and there are complications involving how and what one is planting. I will however, go directly to the conclusion that affects our case.

Since the desktop garden involves only herbs and vegetables and only a single plant or a few plants of each species, the halacha requires only a relatively small distance between species. The poskim dispute whether one is required to plant at least three tefachim apart [about ten inches] (Rashi, Shabbos 85a) or it is sufficient for the plants to be only 1½ tefachim apart [about five inches] (Rambam, Hil. Kilayim 4:9; Shulchan Aruch Yoreh Deah 297:5). Min haTorah one is required to plant only one tefach apart, the additional space requirement is rabbinic (see Rambam, Hil. Kilayim 3:10). Furthermore, since the tanks are completely closed underneath, they have the halachic status of atzitz she’aino nakuv, a closed pot or planter, which are considered part of the ground only because of rabbinic injunction, but not min haTorah. We can therefore conclude that as long as the seeds are placed more than a tefach apart we avoid any Torah prohibition. As far as the possible rabbinic prohibition if the plants are only a bit more that one tefach apart, we could additionally rely on the likelihood that kilei zera’im does not apply indoors in an aino nakuv planter.

Having completed the halachic research, we corresponded with the company that produces the desktop planting kits, asking them how far apart are the holes in which one “plants” the seeds, and how many different herbs and vegetables can be planted in a single tank.

The company replied that the kit usually has seven holes, each four inches apart center to center. When planting peppers and tomatoes, which grow larger than the greens or herbs, the company recommends plugging four of the holes and using only three, which are far enough apart to avoid any kilayim issue according to our conclusion. However, when planting herbs and greens, the distance between the holes is just about the distance that might present a halachic problem. I therefore advised Yehudah to plant in alternative holes even when planting herbs.

Having concluded that there is no problem from either shmittah or kilayim with growing one’s vegetables aeroponically, we now face a different shaylah: Does one recite borei pri ha’adamah before consuming vegetables grown in thin air, or does one recite shehakol? But the discussion of that shaylah will need to wait for a future article.

SHMITTAH, KILAYIM AND SHABBOS BREISHIS

Both the laws of shmittah and those of kilayim have sources in Shabbos Breishis; shmittah because it is the seventh year, and thus is the land’s observance of Shabbos, and kilayim because it represents our responsibility to keep species consistent with the way Hashem created them (see Gemara, Sanhedrin 56b; Yerushalmi, Kelayim 1:7).