In Parshas Naso, the Torah requires the banishing of a metzora from the camp. Chazal understand this to mean that he is not permitted to be within any city that was walled from the time of Yehoshua (Keilim 1:7).

Question #1: Red

“I was told that some nega’im are red or pink. What color are they really, since pink is about the color of our usual Caucasian skin?”

Question #2: White

“I saw someone who had a discoloration on his arm that was white as snow. Is it possible that he could be a metzora, even though we do not yet have the Beis Hamikdash?”

Question #3: Green or Blue?

“Does the word yarok mean green, yellow or blue?”

Introduction:

Contrary to many Biblical translations, tzaraas is not leprosy. The symptoms described by the Torah do not fit Hansen’s disease, which is another term for the condition more commonly called leprosy (see Rav Hirsch’s Commentary, Vayikra 13:59). Tzaraas is a miraculous occurrence that strikes members of the Jewish people as a punishment, but more so, as a Divine admonition to improve our behavior. The root of the word nega means to be “touched” – in this instance, to be touched by Hashem and reminded of the need to improve and do teshuvah. It occurred when the Jewish people in Eretz Yisroel were on a high spiritual level. That it does not occur today is because we are not on the spiritual level to receive these kinds of direct messages from Hashem (Sefer Hachinuch, Mitzvah 169), just as we no longer experience prophecy or obvious miracles for the same reason. (However, see Tiferes Yisrael, Mar’ei Kohein introduction to Nega’im, #39). This may very well be the reason why only someone Jewish is susceptible to tzaraas, and cloth or houses are susceptible to tzaraas only when owned by someone Jewish.

All instances of tzaraas require that a kohein declare them tamei, and to become tahor afterwards also requires the declaration of a kohein. In other words, the symptoms do not make the person, cloth or house tamei — it is the declaration of the kohein that does.

Tzaraas blemishes must be a minimum size to be tamei, but I will not be focusing on these requirements, nor on others, such as that the entire blemish must be visible, the details of what lighting is used to view a nega, and how and when these nega’im are metamei everything in the same room as they are.

We should also note that there is no difference between a man and a woman regarding the laws of tzaraas: both can become tamei any time after they are born. For simplicity’s sake, I will refer to the person with nega symptoms in the masculine.

Difference between musgar and muchlat

To begin with, we need an overview of the basic rules of tzaraas. All types of tzaraas, whether they affect people, cloth or houses, are divided into two general categories: metzora musgar, literally a “closed” metzora, and metzora muchlat, literally, “decided” or “definite” metzora. In the case of a person, a metzora musgar can be tamei for up to two weeks (actually thirteen days, because the seventh day of the first week is also the first day of the second week), after which, if no new symptoms develop, the person immerses himself in a mikveh or spring and becomes completely tahor at the next nightfall. (All immersions germane to tzaraas may be either in a mikveh, which usually consists of rainwater, or in a spring. Throughout the article, I will refer to a mikveh, but in each of these instances, it could also be a spring.) However, someone with nega symptoms that are ruled tahor must remain vigilant that his nega not grow any larger in the future or develop any other tamei symptoms. Should this happen, he will become tamei as a metzora muchlat, which means that he could remain tamei forever, if his tamei symptoms do not go away.

It is a lo saaseh of the Torah for someone to remove the symptoms of a nega, even when he has already been ruled tahor (Tosefta, Nega’im 3:1; Rambam, Hilchos Tumas Tzaraas 10:1). The Torah forbids this in parshas Ki Seitzei, where it says Hishameir benega hatzaraas, “Be careful concerning a tzaraas affliction” (Devorim 24:8).

This lo saaseh is a bit unusual since it is not worded in the more common way of a lo saaseh with the words lo or al but, rather, with the word hishameir. The Gemara teaches that a lo saaseh can also be worded either with the word hishameir or the word pen, which means “lest” (Shabbos 132b; Eiruvin 96a; Makkos 13b).

In all instances of tzaraas, the tumah generated by a metzora musgar is the same as that of a metzora muchlat. Therefore, one could  describe  a musgar as someone who is temporarily tamei, and a muchlat as someone who remains tamei until the symptoms that made him tamei disappear. The procedure for becoming tahor after being muchlat are those described in the beginning of parshas Metzora and are far more expensive, more complicated and take longer to perform than for someone becoming tahor after being musgar.

Tzaraas on a person

At this point, we need to explain the basic categories of tzaraas. There are three types of tzaraas that can affect a person:

(1) Tzaraas on healthy skin

(2) Tzaraas on injured skin

(3) Tzaraas on the scalp or beard

In the case of tzaraas on healthy skin, a nega appears, meaning that someone finds on his skin a blemish that is of a color that is very white, at least as bright as the membrane of an egg. The Mishnah (Nega’im 1:1) explains that there are four shades of white that can make someone tamei as a metzora. In order of increasing intensity, they are:

–          White as the membrane of an egg

–          White as a whitewashed wall

–          White as the cleaned, bleached wool of a newborn lamb (Shavuos 6b)

–          White as fresh clean snow

By the way, there is an unusual shade of white, called bohak by the Torah, that is not a symptom of tumah. Simply explained, although it is a bright white, a blemish this shade is completely tahor, since it is duller than the color of the membrane of an egg, and certainly than the other nega’im colors (Vayikra 13:39).

Pinks

In a few places, the Torah refers to nega’im that are reddish in color (13:19, 24, 43). The halacha is that all nega’im on people that are temei’im if they are white are also te’mei’im if they are reddish or pinkish, and that there are four shades of red, or more accurately, pink, that are tamei, just as there are four shades of white, as I mentioned above. However, the commentaries dispute exactly which four shades are temei’im, with a wide difference of opinion among them, ranging from a very light pink, to shades that are much redder (Ravad to Sifra 13:19; Kesef Mishneh, Hilchos Tumas Tzaraas 1:4; Eliyahu Rabbah and Tiferes Yisroel, Nega’im 1:2; Aruch Hashulchan He’asid 80:6-7) .

To the kohein

Contrary to popular opinion, there is no requirement that there be a Beis Hamikdash for someone to become tamei with tzaraas. In point of fact, should a kohein be knowledgeable about the laws of tzaraas and declare someone with a proper nega shade to be tamei, the person would become tamei (She’eilas Yavetz #136). However, this last scenario would be highly unlikely, since ruling someone tamei for tzaraas requires that an individual have extensive training in all the details of the laws of tzaraas, including personal experience in identifying the differences among the four white shades mentioned above (Rambam, Hilchos Tumas Tzaraas 1:3).

Musgar

Any of the types of tzaraas, whether on a person, garment, or house, must be shown to a kohein, who rules on the status of the nega (Nega’im 3:1). If he rules that the color is tahor, the person is tahor, and no further steps are necessary. If the kohein rules that the nega is musgar, then in the case of a person, he is fully tamei for seven days, counting the day that the kohein ruled on it as the first day. Anything he touches becomes tamei, and, in addition, if he enters a room or building during this week, everything in the room capable of becoming tamei will become tamei. It will require being immersed in a mikveh and will become tahor the nightfall following.

On the seventh day, the metzora must go to the same kohein for him to rule on the nega again (Tosefta, Nega’im 1:12; Rambam, Hilchos Tumas Tzaraas 9:4; 11:6). If the kohein rules that the nega is muchlat, the metzora must go outside of the city (if it is a walled city) and live by himself until the symptoms that created the ruling that it is muchlat disappear.

A person can be tamei musgar for a total of two weeks, which is actually thirteen days, as I explained above. On the thirteenth day, the metzora shows the nega to the kohein. If no symptoms have appeared to make the nega tamei, the person becomes tahor, notwithstanding that he still has the nega symptoms (see below). He immerses in a mikveh and becomes completely tahor the nightfall after his immersion.

Muchlat

What makes a metzora muchlat?

There are three symptoms that can make a metzora muchlat:

(1) His tzaraas spreads.

(2) Two dark or other non-white hairs that are within the nega turn white.

(3) There is a healthy-looking area of skin with a certain minimal size inside of the white nega.

Obviously, the first time the kohein sees the nega, he can rule muchlat only because of either the second or third symptom; ruling a nega muchlat because it spread can be only for a person who has been seen previously by the kohein.

Injuries, scalps and beards

I mentioned above that there are two other types of nega’im that can affect a person, tzaraas on injured skin and tzaraas on the scalp or beard. Each of these categories has two subcategories.

Injured skin

The Torah mentions two types of nega’im on injured skin, one in which the injury was the result of a blow and the other in which it was the result of a burn or other heat. There is no difference in halacha between these two types of nega’im. Whether someone finds a nega on an injury received through a burn or on an injury received as a result of a blow, both have almost the same rules as regular nega’im on healthy skin, with two exceptions, both of them leniencies.

(1) A nega musgar on injured skin is tamei for only one week. If, on the seventh day, the nega has not changed, the kohein rules the nega to be tahor. The metzora then immerses himself in a mikveh and becomes tahor at the next nightfall.

(2) The second lenience is that healthy skin inside the nega is not a muchlat sign. In other words, a nega on injured skin that has healthy skin inside will either be musgar or tahor, depending on the size and shape of the nega.

Scalp and beard

There are three types of nega’im that can affect the scalp or beard areas. In two of these situations — karachas, baldness on the back of the head, and gabachas, baldness on the front and top of the head — the halacha is that once someone’s hair falls out to the extent that part of the scalp is completely bald, it is treated the same as other areas of the body germane to nega’im. In other words, when someone becomes bald, that area that once had hair and now does not has the same halacha for nega’im purposes as other parts of the body. There is one exception, again a leniency. In this instance, white hairs inside the nega are not symptoms of tumah.

The other type of nega on the scalp or beard areas is called nesek, which is described at length both in the Torah and the Mishnah. Unfortunately, nowhere in Tanach or Chazal is it clarified how this is halachically different from bald areas. As a result, the rishonim dispute exactly what is the difference (see Rambam, Hilchos Tumas Tzaraas 5:8-11, 8:1; Rash, Nega’im 10:10; Ramban, Vayikra 13:30). Since the halachic conclusion is unclear, I will not discuss this issue.

Nega’im on clothing and houses

In addition to tzaraas on a person, there can be tzaraas on cloth, thread, or leather, and also on houses. In this instance, the indication of tzaraas is not a white discoloration, but adamdom, which is deep red, or yerakrak (Vayikra 13:49; 14:37). The color yarok in Tanach and Chazal can mean blue, green, gold or yellow (Tosafos, Chullin 47b s.v. Ela; Sukkah 31b s.v. Hayarok; Niddah 19b s.v. Hayarok). In a Tosefta (Nega’im 1:3), we find a dispute between tana’im what color is yerakrak that renders a garment tamei:

According to Rabbi Elazar, it is a yellow shade — the color of wax, egg yolk, or a variety of yellow gourd (dependent on varying texts to the Tosefta). According to Sumchus, it is the color of the wing of a peacock or the leaf of a palm tree, both shades of deep green. The color is the indication that the nega is musgar. Nega’im on cloth and houses can never become muchlat the first time they are seen by a kohein.

Yarok

How can so many different shades of color — blue, green, gold or yellow – all be called by the same word yarok? One answer is that the Torah’s descriptions refer to the various shades of the refracted light spectrum that is visible to humans, which range from violet to red (see Rav Hirsch, Collected Writings, Volume III, page 127). Yarok would refer to the middle of the spectrum, “techeiles” to the violet and blue-violet part, which are the shorter waves of light, and adom to the red, or longer waves. (According to this approach, the gold color here probably means a yellowish gold, rather than reddish.)

Differences between cloth and people

Aside from the differences in the color of the nega, there are several other distinctions between the laws of nega’im germane to garments and those germane to people.

In all types of nega’im, a nega that appears without any muchlat signs is musgar for the first week, and then examined by the kohein on the seventh day. A nega on cloth that appears the same after a week has passed is removed from the cloth, and the area of the cloth that became torn when the nega was excised is sewn closed. A similar halacha is true in the case of a nega on a house – the nega area and the stones on which it appears are removed to a tamei place, the area is replaced with stone and mortar and becomes musgar for a second week.

This halacha is the exact opposite from a nega on a person, in which case it is prohibited min haTorah to excise the nega, and the person continues in the state of musgar for another six days.

A person whose nega remains the same for two weeks becomes tahor. However, a garment whose nega remains the same for two weeks has the status of tamei muchlat. Another critical difference is what is done to the person or item that becomes muchlat. As explained before, a person who becomes muchlat remains tamei until the symptoms of his nega change. A garment that becomes muchlat is burnt.

There are other halachos that apply to a nega on cloth that do not apply to nega’im on people. A person whose nega is musgar is not banished from the city – this halacha is reserved for a person whose nega is muchlat. However, cloth that is tamei tzaraas must be removed from the city – even when it is only musgar. A related strict ruling that applies to a cloth nega (and does not apply to nega’im on people) is that a cloth that has tzaraas must be removed from any city – whether or not the city is walled, whereas a person who is muchlat is banished from a walled city (Keilim 1:7), but is not required to leave an unwalled city (Tosefta Nega’im, 7:14; Rambam, Hilchos Tumas Tzaraas 13:15).

Nega’im on houses

In addition to the laws of tzaraas on people and on cloth, the Torah presents the laws of nega’im on the inside of a house. Tzaraas applies only to a house built from wood, clay and earth (Nega’im 12:2) and only to a house in Eretz Yisroel. The color of the nega is, as the law of nega’im on cloth, adamdom, bright red, or yerakrak, as explained above.

There are several unique features about the laws of nega’im on houses. One is obvious: whereas the person with a nega or the owner of cloth with a nega goes to the kohein to show him the nega, in the case of a nega on a house, the kohein comes to the house to see the nega. Whereas other nega’im are always ruled on outdoors, in sunlight, nega’im on a house are ruled as the light can be seen through the windows and open doors of the house.

A nega on a house can have the status of musgar for up to three weeks, something not possible with any other nega (Nega’im 3:8, see also 13:1).

According to many authorities, nega’im on houses can render tamei even items inside the house that can never otherwise become tamei (Rambam, Hilchos Tumas Tzaraas 14:4; Rashi and Tosafos, Mo’eid Katan 8a s.v. Deha; Eliyahu Rabbah, Mishnah Acharonah and Tiferes Yisroel, Nega’im 12:5 in explanation of Rabbi Yehudah; however, cf. Bartenura who disagrees).

Conclusion

The Gemara mentions tzaraas as a punishment for many types of prohibited behavior, which all share a common thread that they are antisocial activities. In other words, they all violate both mitzvos bein adam lamakom and bein adam lachaveiro. To quote the Rambam, “Tzaraas is a generic term comprising many things that are not comparable to one another… These changes that the Torah collectively calls tzaraas are not within what normally happens in the world. They are miraculous things that happen to the Jews to warn them away from loshon hora. Someone who speaks loshon hora — the walls of his house change color. If he changes his actions, the house becomes tahor. If he persists in his evil actions, his house will be destroyed, and then the leather items in his house that he sits and lies upon change color. If he changes his actions, they become tahor. If he persists in his evil actions until they are burnt, then the clothes that he wears change color. If he changes his actions, they become tahor. If he persists in his evil actions, until they are burnt, then his skin changes color, and he himself becomes a metzora. Therefore, someone who wants to develop himself spiritually should distance himself from these types of people, not to be influenced by their foolishness” (Hilchos Tumas Tzaraas 16:10).

Unfortunately, we no longer have these Divine reminders to keep us on the straight and narrow. Instead, we must try to inspire ourselves to grow in these areas.

Since Yom Tov begins on Friday, a rare occurrence, we must prepare an eruv tavshilin, whether we live in Eretz Yisrael or in Chutz La’Aretz.

Question #1: Where?

“Is it true that eruv tavshilin is more common in chutz la’aretz than in Eretz Yisroel?”

Question #2: What?

“In what way is the halacha of eruv tavshilin different on Shavuos and Shevi’i shel Pesach from other Yomim Tovim?”

Question #3: Why?

“What is the reason that many people use a hard-boiled egg for eruv tavshilin?”

Foreword

With Shavuos beginning on Thursday evening, the laws of eruv tavshilin are germane both to those living in Eretz Yisroel and to those living in chutz la’aretz. In order to reply accurately to the above inquiries, we must first examine several aspects of this mitzvah that Chazal implemented – particularly, the whys, hows, and whats of eruv tavshilin. Because of space considerations, this article will not be able to address all the issues of eruv tavshilin, but will answer the opening questions that were posed. However, there are other articles on the topic, as well as on the laws of Yom Tov, that may be read on RabbiKaganoff.com.

First, the basics: When Yom Tov falls on Friday, an eruv tavshilin must be made on erev Yom Tov to permit cooking and other preparations on Yom Tov for Shabbos. As it turns out, making an eruv tavshilin is much more common in chutz la’aretz than it is in Eretz Yisroel. Since, in our calendar devised by Hillel Hanasi, the beginning of Sukkos, Pesach and Shmini Atzeres never falls on Friday, the only time there is a need for an eruv tavshilin in Eretz Yisroel is when Shavuos or the seventh day of Pesach falls on Friday, or when Rosh Hashanah falls on Thursday. On the other hand, in chutz la’aretz, in additional to these instances, often the two days of Yom Tov fall on Thursday and Friday.

Introduction

When discussing the laws of Yom Tov, the Torah teaches kol melacha lo yei’aseh bahem, ach asher yei’acheil lechol nefesh hu levado yei’aseh lachem,“No work should be performed on these days; however, that which is eaten by everyone (kol nefesh), only that may be prepared for yourselves” (Shemos 12:16). We see from the posuk that, although most melachos are forbidden on Yom Tov, cooking and most other food preparations are permitted. However, cooking is permitted on Yom Tov only when it is for consumption on that day. It is forbidden to cook on Yom Tov for the day after, and at times this is prohibited min haTorah. There is, however, one exception – when Yom Tov falls on Friday and an eruv tavshilin is made, it is permitted to cook on Yom Tov for Shabbos.

To quote the Mishnah (Beitzah 15b), “When Yom Tov falls on erev Shabbos, it is prohibited to begin cooking on Yom Tov for Shabbos. However, it is permitted to cook for Yom Tov, and, if there are leftovers, plan them to be for Shabbos. Furthermore (there is a way in which it is permitted to cook on Yom Tov for Shabbos), by preparing a cooked food from before Yom Tov which he leaves for Shabbos. According to Beis Shamai, this must be two cooked items, and, according to Beis Hillel, one cooked item suffices.” (As we are aware, we also set aside a baked item for the eruv tavshilin, but this is not essential.)

Prior to quoting the dispute between Beis Shamai and Beis Hillel, the Mishnah has expressed three distinct concepts:

No cooking on Yom Tov for Shabbos

1. It is prohibited to cook on Yom Tov for Shabbos (without making the eruv tavshilin).

Plan-overs

2. It is permitted to cook for Yom Tov, planning to have leftovers for Shabbos.

Eruv tavshilin

3. Making an eruv tavshilin permits cooking on Yom Tov for Shabbos.

Each of these concepts requires clarification:

1. No cooking on Yom Tov for Shabbos

It is prohibited to cook on Yom Tov for Shabbos.

Let me explain a question that is implicit here. If it is prohibited to cook on Yom Tov for Shabbos, why does an eruv tavshilin permit it? Or, in other terms, there are three types of eruv that Chazal instituted, eruv techumim, eruv chatzeiros and eruv tavshilin. All three of these mitzvos have the status of a takanas chachamim, which means that they were instituted by Chazal to permit something that is otherwise prohibited because of a rabbinic injunction. An eruv techumim permits walking on Shabbos and Yom Tov beyond the techum Shabbos, the distance outside the city or other “Shabbos residence;” an eruv chatzeiros permits carrying on Shabbos from one individual’s jurisdiction to that of another. Both of these prohibitions permitted by their respective eruvin are rabbinic injunctions. An eruv, which is a rabbinic introduction, cannot permit something that is prohibited min haTorah, as the Gemara asks, “Can an eruv tavshilin permit a Torah prohibition” (Pesachim 45b)?

If cooking on Yom Tov for Shabbos is permitted min haTorah, and it is prohibited only because of a rabbinic injunction, we can understand how Chazal could create a rabbinic innovation called eruv tavshilin and thereby permit this cooking. To paraphrase this expression of the Gemara, since Chazal created the prohibition, they can also reverse it (ibid.). However, if cooking on Yom Tov for Shabbos is prohibited min haTorah, how do Chazal have the authority to permit that which the Torah forbade?

Two differing approaches

How we answer this conundrum is dependent on a debate between two amora’im, Rabbah and Rav Chisda (Pesachim 46b), which has major ramifications specifically for this coming Yom Tov, when Shavuos falls on Friday.

Rav Chisda contends that, min haTorah, it is always permitted to cook on a Friday Yom Tov for Shabbos. This is called tzorchei Shabbos na’asin beYom Tov, literally, “Shabbos needs may be performed on Yom Tov.” Since Shabbos and Yom Tov both have kedusha, and are both sometimes called “Shabbos” by the Torah, cooking on Yom Tov for Shabbos is permitted min haTorah, just as cooking on Yom Tov is permitted for the same day (Rashi ad loc.). The prohibition not to cook on Yom Tov for Shabbos is a rabbinic injunction; Chazal prohibited this in order to make sure that people do not cook on Yom Tov for a weekday, or on the first day of Yom Tov for the second, both of which might be prohibited min haTorah. Making an eruv tavshilin permits cooking on Yom Tov for Shabbos, since a person thereby realizes that, without an eruv tavshilin, he cannot cook on Yom Tov even for Shabbos — therefore, he understands that he certainly cannot cook on Yom Tov for any other day.

The other position — ho’il

Rabbah contends that it is often prohibited min haTorah to cook on Yom Tov for Shabbos. In other words, he maintains that tzorchei Shabbos einam na’asin beYom Tov – notwithstanding that Yom Tov is sometimes called Shabbos, it is still prohibited min haTorah to cook on Yom Tov for any other day, including Shabbos!

If that is true, how can an eruv tavshilin, which is a rabbinic solution, permit that which is prohibited min haTorah?

The answer is a halachic concept called ho’il, which permits cooking on Yom Tov min haTorah whenever you might have a need for extra cooked food on Yom Tov itself, even when you are not expecting to need the extra food and it is unlikely that such a situation will arise. For example, after finishing the Yom Tov day seudah, min haTorah it is permitted to cook another meal, provided it will be ready to eat before the Yom Tov day is over. This is because unexpected guests may arrive at your door, and you now have a meal ready to serve them. The idea that perhaps something will happen is expressed as the word ho’il; this word is now used as a brief way of referring to a complicated legal concept.

Therefore, whenever it is possible that guests may yet arrive on Yom Tov, it is permitted to cook for them min haTorah. Although miderabbanan it is not permitted to rely on ho’il to cook on Yom Tov for Shabbos, since this is only a rabbinic injunction, eruv tavshilin can permit the cooking.

However, this heter applies only as long as the meal will be ready to be eaten while it is still Yom Tov. There is no heter to begin cooking a meal on Yom Tov that will not be ready until Yom Tov is over g . In other words, according to Rabbah, when ho’il does not apply, it is prohibited min haTorah to cook. Under these circumstances, an eruv tavshilin will not permit someone to cook on Yom Tov for Shabbos.

Thus, there is a halachic difference between Rabbah and Rav Chisda that affects us! According to Rabbah, it is not permitted to put a cholent on the fire on Friday that will not be ready to eat until sometime on Shabbos. Usually, it is perfectly fine to cook food on Friday that will be left on a properly covered fire when Shabbos starts and not ready to eat until the Friday night seudah. However, this Yom Tov it is not permitted to do this, according to Rabbah. Since this food will not be ready to eat on Yom Tov, the law of ho’il does not apply. Since the rule of ho’il does not apply, there is no heter to cook the cholent on Yom Tov for Shabbos, even if one makes an eruv tavshilin! Thus, the menu for Shabbos may have to depend on what one is planning to cook, or, more accurately, on whether it will be cooked in a way that it can be eaten on Yom Tov.

How do we rule?

The Mishnah Berurah, in Biur Halacha (527:1), notes that it is unclear whether we rule according to Rabbah or according to Rav Chisda. He concludes, therefore, that it is preferred to be machmir and have the food cooked for Shabbos in a way that ho’il applies, particularly when we are dealing with a potential question of a Torah law, such as when the first day of Yom Tov falls on Friday, as it does on Shavuos. This means that all food cooked for Shabbos should be edible before Shabbos arrives. The Biur Halacha rules that, under extenuating circumstances, it is permitted to rely on the rishonim who rule according to Rav Chisda’s opinion, but it is preferable lechatchilah to have the food for Shabbos cooked in a way that it will be already edible on Friday.

When the the first day of Yom Tov falls on Thursday, and, therefore, Friday Yom Tov is miderabbanan, there is more latitude to be lenient.

At this point, we can answer the second of our opening questions: “In what way is the halacha of eruv tavshilin different on Shavuos and Shevi’i shel Pesach from other Yomim Tovim?”

In the calendar we currently use, the first day of Shavuos and Shevi’i shel Pesach never fall on Thursday, although they both often fall on Friday. When this happens, Friday is Yom Tov min haTorah, and it is important to plan the menu such that the meals cooked on Friday for Shabbos will be ready to eat when there is still time to eat them on Yom Tov.

Plan-overs

At this point, we will examine the second point that we derived from the Mishnah, which stated, “It is permitted to cook for Yom Tov, and, if there are leftovers, plan them to be for Shabbos.” In other words, even without having made an eruv tavshilin, there is a way to cook more than you need on Yom Tov in order to have plenty of leftovers, or, shall we call them, “plan-overs.” One may cook amply for the Yom Tov meal, knowing that there will certainly be leftovers that can be served on Shabbos. As a matter of fact, if one follows the halacha correctly here, it is even permitted to cook on the first day of Yom Tov planning to have enough leftover to serve on the second day, or even on a weekday. This is provided that each dish is, or could be, served at a Yom Tov meal on the day that it was prepared.

This plan-over preparation is called marbeh beshiurim, literally, “increasing the quantities,”which means that, while preparing food on Yom Tov, it is permitted to include a greater quantity while cooking, provided no additional melacha act is performed. For example, if you need to heat a small amount of water for a cup of tea, you may place a large pot of water on the fire, since only one act of heating water — placing a pot on the fire — is being performed.

However, it is prohibited if an additional melacha action is performed. For example, if the pot is already on the fire, you may not add extra water to it, since this involves a new melacha action.

Adding more

Here are other examples. You are making a cholent or cooking soup — you may add greater quantities of meat, beans or other ingredients than you will need for your Yom Tov meal into the pot before it is placed on the stove, because you place the entire pot onto the fire at one time, or turn up the fire only once, regardless as to how much is thereby being cooked.You may fill a pot with meat on the first day of Yom Tov, even though you need only one piece for the first day.

However, it is prohibited to prepare individual units of a food item, knowing that you are preparing more than can possibly be eaten on Yom Tov. For this reason, you may not fry more schnitzel or similar items than you will possibly need for a Yom Tov meal, since these involve separate melacha actions. Similarly, it is forbidden to bake more than what you will possibly need for the day (Beitzah 17a). Adding water or meat before putting the pot on the fire simply increases the quantity cooked, but does not increase the number of melacha acts, whereas shaping each loaf or roll is done separately, thus increasing the number of acts performed.

Why is this permitted?

Why is it permitted to cook extra on Yom Tov by use of marbeh beshiurim? We would think that cooking extra on Yom Tov is forbidden, just as in a situation of pikuach nefesh, where it is forbidden to cook more than what is necessary for the needs of the ill person. Why, then, is it permitted to cook extra on Yom Tov, as long as no extra melacha actions are performed?

The Ran (Beitzah 9b in Rif pages, s.v. Umiha) explains that there is a qualitative difference between the performance of melacha actions on Shabbos (or Yom Tov) to save someone’s life, and cooking on Yom Tov. Although saving lives is a huge mitzvah and supersedes Shabbos, the act performed is still an act of melacha. On the other hand, prohibited activities on Yom Tov are defined as melachos that are not food preparatory. Preparing food on Yom Tov involves no melacha activity whatsoever, and is as permitted on Yom Tov as it is to set the table on Shabbos. Since no melacha activity is performed, there is nothing wrong with adding more to cook while the Yom Tov meal is prepared, provided that no additional melacha action is done.

Hard-boiled eruv?

At this point, let us examine the third of our opening questions: “Why do many people use a hard-boiled egg for eruv tavshilin?”

It is permitted to continue cooking on Yom Tov for Shabbos only as long as the eruv tavshilin, or at least a kezayis of the cooked part of the eruv tavshilin, still exists. In the days before refrigeration, someone who prepared meat or a different food on Wednesday or Thursday for eating on Shabbos was faced with a practical problem. Once you cook food, it begins to spoil very quickly, if it is not refrigerated. Therefore, notes the Aruch Hashulchan, it was not uncommon that the eruv tavshilin was no longer edible when people were cooking on Wednesday for Shabbos, and an inedible eruv tavshilin no longer permits you to cook on Yom Tov for Shabbos.

Using a hard-boiled egg for the eruv tavshilin resolved this problem, since an egg cooked before Yom Tov and kept without refrigeration will still be edible on Shabbos.

However, in today’s world, when you can place the cooked part of your eruv tavshilin in the refrigerator and it will last until Shabbos, it is preferred to use as eruv tavshilin a cooked delicacy that you intend to serve at the Shabbos meal. For this reason, I for the eruv tavshilin the gefilte fish that will be served on Shabbos.

Conclusion

The Torah refers to the Yomim Tovim as mo’ed. Just as the word ohel mo’ed refers to the tent in the desert which served as a meeting place between Hashemand the Jewish people, so, too, a mo’ed is a meeting time between Hashemand the Jewish people (Hirsch, Vayikra 23:3 and Horeb). Unlike Shabbos,when we refrain from all melacha activity, on Yom Tov the Torah permits melacha activity that enhances the celebration of the Yom Tov as a mo’ed. Permitting us to cook delicious, fresh meals allows an even greater celebration of this unique meeting time with Hashem.

Parshas Kedoshim contains one of the two places in the Torah where the mitzvos of kil’ayim are taught.

Question #1: Kil’ei beheimah

May one attempt to crossbreed a mule with a stallion?

Question #2: Kil’ei zera’im

May I plant the vegetables in my garden close together?

Question #3: Kil’ei hakerem

Is there any way that I can plant vegetables near my vineyard?

Question #4: Harkavas ilan

Must I be careful before I purchase a fruit tree?

Many people assume that the halachic definition of the mitzvah of kil’ayim is the crossbreeding of different species of plants or animals, but, as we will soon see, not all of the laws of kil’ayim have to do with what a farmer or a scientist would call crossbreeding or hybridization.

My desktop dictionary defines hybrid as “the offspring produced by breeding plants or animals of different varieties, species, or races.” Thousands of years ago, mankind crossbred horses and donkeys to create mules and hinnies. This hybrid, called a pered (female pirdah) is already mentioned many times in Tanach. As a pack animal, the mule — produced from a male donkey, called a “jack” and a mare (female horse) — has many advantages over either of its parents. It is usually as strong as a horse, sturdy, sure-footed, and, notwithstanding its reputation for being “stubborn as a mule,” is more reliable for hauling than draft horses. (A hinney, which has less commercial value, is produced from a stallion (male horse) and a female donkey, called a “jenny.” The word “hinney” comes from its parents – a horse and a jenny.)

Other crossbred animals

Artificial insemination has been used to crossbreed camels and llamas with the goal of producing a larger quantity of quality llama wool. Mankind has created such interesting creatures as ligers, crossbreeds of male lions and tigresses, tiglons (sometimes called tigons) from male tigers and lionesses, leopons (male leopards and lionesses), wholpins (whales and dolphins) and geeps (goats and sheep). Most of these have resulted in limited, if any, commercial value, although it was thought by some that they might.

Crossbreeding animal species is one of the prohibitions of the Torah when it declares behemtecha lo sarbia kil’ayim (Vayikra 19:19). It is one of the unusual mitzvos that even a non-Jew is required to observe (Rambam, Hilchos Melachim 10:6).

The prohibition is only to create the crossbreed; one may use a mule or any other crossbred animal. However, not only is it prohibited to crossbreed a horse with a donkey, it is even forbidden to attempt to breed a mule or hinney with either a donkey or a horse (Mishnah, Kil’ayim 1:6). In fact, it is rare that such an attempt will produce offspring, although it is claimed anecdotally that this can happen upon occasion. Nevertheless, someone who attempts to crossbreed them violates a Torah prohibition.

Crossbreeding of plants

Crossbreeding of plants, or, as it is usually called, cross-fertilization or cross-pollination, is when one pollinates the flower of one species with pollen from a different species, to produce offspring with some characteristics of each. Many fruits have been developed this way, although I want to share that a nectarine is not a crossbreed of a peach and a plum, as often mistakenly thought. A nectarine is an ancient variety of peach (Prunus persica) that has a smooth skin. Botanists consider it to be the same species as peaches.

What is interesting is that, in the discussions about kil’ayim in the Torah, the Mishnah and the writings of Chazal, nowhere does it say that it is prohibited to cross-pollinate from one plant species to another. This does not mean to say that there is no prohibition of kil’ayim germane to trees or plants. Quite the contrary, there are three such prohibitions min haTorah. They are referred to as kil’ei zera’im, kil’ayim in plants; kil’ei hakerem, kil’ayim in vineyards; and kil’ayim in trees, usually referred to as harkavas ilan. But, as we will soon see, none of these three prohibitions has anything to do with crossbreeding.

Kil’ei zera’im

Kil’ei zera’im is planting two or more different species of grains, vegetables or other edible herbaceous plants in close proximity. Exactly what defines “close proximity” is a very complicated halachic topic, and depends on factors such as the shape and size of the vegetable patch, and what variety of produce one is planting. We should note that, from a botanical point of view, planting two species in close proximity will not cause hybridization because it does not affect the genetic makeup.

This mitzvah applies only in Eretz Yisroel. Thus, someone in chutz la’aretz may plant his backyard garden with a wide variety of vegetables without any halachic concern, whereas in Eretz Yisroel someone planting a garden patch must be very careful to keep the different species separate.

Kil’ayim in a vineyard, kil’ei hakerem

Kil’ei hakerem is the prohibition against planting grains or vegetables in, near, above or below a vineyard. Again, this forbidden planting will not affect the genetic makeup of any of the plants involved. It is also clear that this was not the concern in halacha as we see from many of the halachic details. Here is one example: Although it is prohibited to plant grains or vegetables near a vineyard, there is a way to permit it by separating the vegetable patch from the vineyard with a halachic wall between them. For example, if one places two poles and a wire across the top, a tzuras hapesach, between the vegetable patch and the vineyard, it is permitted to plant vegetables right next to the vineyard (Eruvin 11a). This is similar to what we do when we construct an eruv to permit carrying on Shabbos. It is quite clear that, botanically, the tzuras hapesach does not accomplish anything to prevent the mingling of the species. Yet, with the tzuras hapesach, it is permitted to plant the crop; without the tzuras hapesach, it is a Torah prohibition to do so! This certainly cannot be explained on a scientific basis.

Even one grapevine is problematic near a crop plant, so care must be taken even in the home garden. For example, a pot with herbs or a vegetable under a trellised grapevine could forbid the grapes and the produce of the pot!

Unlike other forms of kil’ayim, the produce of kil’ei hakerem is forbidden to use.

The prohibition of planting grains or vegetables in a vineyard applies in chutz la’aretz, but only miderabbanan (Kiddushin 39a).

Harkavas ilan – grafting trees

The laws of kil’ayim also prohibit grafting one species of tree or plant onto the wood stock, or lower trunk, of another species. Although a town dweller may feel that this is a rare occurrence, in fact, contemporary plant nurseries and tree farmers usually graft branches of a species that produces delicious fruit onto the hardier stock of a different species.

For example, most peach and nectarine trees are produced by grafting a peach or nectarine branch onto the stock of a hardier tree, such as an almond. Someone who performs this, either in Eretz Yisroel or in chutz la’aretz, violates a Torah prohibition whether he is Jewish or not (Rambam, Hilchos Melachim 10:6). Most authorities rule that one may not own, water or prune a kil’ayim tree, whether or not it is in Eretz Yisroel or in chutz la’aretz (Shulchan Aruch Yoreh Deah 295:7 and Piskei Teshuvah).

However, many observant Jews purchased agricultural properties that contained kil’ayim trees and did not cut down those trees. Was there any justification for their actions? Numerous halachic responsa discuss what was apparently a widespread practice in the eighteenth and nineteenth century. Whereas most poskim rule that these Jews violated the halacha, some authorities justify the practice of owning these trees, at least in chutz la’aretz (Shu’t Chasam Sofer, Yoreh Deah #288; Aruch Hashulchan, Yoreh Deah 295:17-18).

Because so many trees are grafted nowadays, someone who owns a fruit tree should have a horticultural expert check whether its stock is from the same species or not. Often, even a non-expert can detect if a tree was grafted onto a different species by simply scrutinizing the tree. If the bark somewhere near the bottom of the tree looks different from the upper part of the tree, this indicates that the upper part of the tree was grafted. Often one can see a line separating the grafted scion from the rootstock, or a difference in thickness between the top and bottom. Before purchasing a new tree at a nursery, examine the trunk carefully for signs of grafting.

The prohibition of planting vegetables and other edible crops together applies only in Eretz Yisroel, whereas grafting trees applies equally min hatorah in chutz la’aretz and in Eretz Yisroel.

Although planting and caring for a kil’ayim tree is forbidden, the fruit from such a tree is permitted. Thus, one may purchase fruit in a market without worrying about kil’ayim.

Esrogim

Although space does not allow us to discuss this fascinating topic, there is a huge amount of halachic literature discussing the very common instance of using an esrog from a tree that was grafted onto a non-esrog tree. Most authorities rule that this esrog may not be used to fulfill the mitzvah on Sukkos.

Conclusion

Rav Hirsch (Vayikra 19:19) explains that the root word ke’le means to keep or hold something back, and that the plural form kil’ayim is similar to yadayim or raglayim and means a pair. Therefore, the word kil’ayim means to pair together two items that should be kept apart. This is to teach us that although we are given the world to develop, we must follow the rules that Hashem established for us to do so.

At the beginning of parshas Vayeitzei, the Torah teaches that Yaakov reached “the place,” vayifga bamakom, and he stopped there, because the sun had already set (see Rashi). The Gemara explains the word vayifga to mean he prayed. As Rashi notes, the word bamakom means that he stopped at a specific place, yet the Torah does not identify which place. Chazal explain that he stopped at the place where the akeidah of his father had occurred, which is the place from which Adam Harishon was created and the location of the mizbei’ach of the Beis Hamikdash, toward which we daven three times daily.

To quote the Rambam: “The location of the mizbei’ach is very exact… this is the holy place where Yitzchak was bound… We have a tradition that the place where David and Shelomoh built the mizbei’ach is where Avraham had built the mizbei’ach upon which Yitzchak was offered, and is the same place where Noach built the mizbei’ach after he exited the ark. This is the same mizbei’ach upon which Kayin and Hevel offered, as did Adam Harishon, and it is the place from which he was created” (Hilchos Beis Habechirah 2:1-2).

The Gemara (Berachos 6b) asks: “What is our source that Avraham assigned a place for prayer?” The Gemara responds: “‘Avraham arose early in the morning and went to the place where he had stood before Hashem’ (Bereishis 19:27). The expression ‘where he had stood’ alludes to prayer, as it says, ‘Pinchas stood up and prayed’” (Tehillim 106:30).

We see that Yaakov stopped to pray because he was continuing the practice of his grandfather, Avraham. Thus, we can see the importance of where we pray and to associate our davening with the Beis Hamikdash.

Toward the Mikdash

The Gemara (Berachos 30a) teaches that someone davening outside Eretz Yisrael should face Eretz Yisrael, someone within Eretz Yisrael should face Yerushalayim, someone within Yerushalayim should face the Beis Hamikdash, and someone within the Beis Hamikdash should daven facing the Kodesh Hakadashim. It even specifies how one should face within the Kodesh Hakadashim. Someone who has this shaylah should not be reading my article for instructions, but should check the Gemara.

Window on Yerushalayim

The room where one is davening should have some windows or doors open that face Yerushalayim (Rambam, Hilchos Tefillah 5:6; Shulchan Aruch, Orach Chayim 90:4). This halacha is derived from a verse in Daniel (6:11): “He had windows open, facing Yerushalayim, in the upper story of his house, and three times a day… he prayed to Hashem” (Berachos 31a, 34b).

Why windows?

Rashi explains that looking heavenward through the windows influences one to be increasingly humble.

This ruling prompts the following question of the Magen Avraham (90:4): Why should we daven in a house that has windows? One is supposed to daven looking downward, to avoid distraction. So, logically, would it not be better if a shul deliberately did not have windows? Yet, Daniel davened in a room with windows.

The Magen Avraham answers that the windows are there so that if one is having difficulty concentrating while praying, he can look heavenward for inspiration. Similarly, Rashi may mean that immediately prior to davening one should look heavenward, but that, in general, while davening one should not be looking around or upward.

The Machatzis Hashekel shares with us several other reasons why davening should be in a room with windows. Some explain that this is a practical consideration, for ventilation, since being physically comfortable facilitates having proper focus when davening. Others explain that there should be windows facing Yerushalayim, not to provide a view, but to remind us that our tefillos travel first to Yerushalayim and then to heaven.

It is interesting to note that the Kesef Mishneh quotes a responsum of the Rambam, wherein he explains that the requirement that there be windows applies when davening at home, but not in shul. When the Mishnah Berurah (90:8) quotes this halacha, he similarly explains that this law applies primarily to a house, although he also applies the law to a shul, which is the prevailing custom. The later authorities note that having windows in a shul is implied by the Zohar, and contend that the Shulchan Aruch, the author of the Kesef Mishneh himself, followed this approach (Pri Megadim, Eishel Avraham 90:4; Kaf Hachayim 90:19).

Twelve windows?

The Zohar states that it is proper that a shul have twelve windows. Upon quoting this, the Beis Yosef says that the reason is based on deep kabbalistic ideas. Thus, although we do not understand the reason for this ruling, we should try to follow it.  Therefore, when Rav Yosef Karo, the author of the Beis Yosef, subsequently wrote the Shulchan Aruch, he ruled that a shul should, preferably, have twelve windows (Orach Chayim 90:4). The Pri Megadim rules that it does not make any difference which direction the twelve windows face, as long as at least one faces Yerushalayim. This is based on the fact that Daniel’s prayer room had a window facing Yerushalayim.

Outdoors

The Gemara mentions that it is inappropriate to daven outdoors (Berachos 34b). Although Chazal imply that Yaakov davened outdoors, his situation was different, because he was traveling. A traveler may daven outdoors, particularly if there is no more appropriate place for him to pray. In addition, even if a person has a place indoors to daven, but it is a place where he might be disturbed, it is better that he pray outdoors. If he has two places where he can daven undisturbed, one under trees and the other not, it is preferable to daven in the place where there are trees overhead (Pri Megadim, Chayei Adam, Mishnah Berurah).

Tosafos cites an opinion that the concern is not to daven in a place where someone will be disturbed by travelers, but one may daven outdoors in a place where he will not be bothered. The Beis Yosef (Orach Chayim 90) mentions this Tosafos, but questions it, implying in Shulchan Aruch that should someone have two choices where to daven undisturbed, one indoors and one outdoors, it is preferred to daven indoors.

Un-elevated Davening

The Gemara (Berachos 10b) rules that one should not daven from an elevated place. Quite the contrary, it is proper to pray from a low place, as the pasuk states, “from the depths I call to You, Hashem” (Tehillim 130:1).

Set place — Makom kavua

A person should daven regularly in the same place, as the Gemara states: Whoever establishes a place for his prayer, the G-d of Avraham will assist him. Furthermore, upon his passing, they will say about him that he was exceedingly humble and righteous and a disciple of Avraham Avinu (Berachos 6b).This passage of Gemara is subsequently quoted verbatim by the Rif and the Rosh, and its conclusion is quoted by the halachic authorities (Rambam, Hilchos Tefillah 5:6).

What does the Gemara mean when it says one should pray in an “established place”? This is the subject of a dispute among the rishonim; I will quote three approaches:

Daven in shul

(1) Rabbeinu Yonah explains that it means to pray somewhere set aside for prayer, such as a shul. When someone cannot daven in shul and must pray at home, he should have a set place where he can pray undisturbed (see Magen Avraham 90:33). Rabbeinu Yonah rules explicitly that an established place does not mean a specific place in a shul — the entire shul is established for prayer. In his opinion, there is no requirement to have a specific seat in shul where one always davens.

Furthermore, according to Rabbeinu Yonah, it does not seem to make any difference which shul one attends, since one is, in any instance, davening in a place that has been established for prayer. According to this approach, the special rewards that the Gemara promises to someone who establishes a place for his prayer are because he was always careful to daven in a shul.

Based on Rabbeinu Yonah’s approach, many rishonim note that someone who is unable to join the tzibur should still daven in a shul, rather than at home (Rabbeinu Manoach, Hilchos Tefillah 5:6, based on Rambam, Hilchos Tefillah 8:1; Shulchan Aruch, Orach Chayim 90:9).

Set place in shul

(2) Other rishonim disagree with Rabbeinu Yonah’s approach. The Rosh contends that, even in a shul, one should have a set place where he prays – the way we traditionally use the term makom kavua (Rosh, Berachos 1:7; Hagahos Maimaniyos, Hilchos Tefillah 5:10; Tur Orach Chaim #90). The poskim note that it need not be the exact same seat or location. Rather, anywhere within four amos (approximately seven feet) is considered to be the same place (Mishnah Berurah 90:60). If a guest is sitting in your seat, it is improper to ask him to sit elsewhere, since any nearby seat fulfills makom kavua.

For the occasion when someone must daven at home, he should have a set place where he can daven undisturbed (Magen Avraham 90:33). A woman should also have a set place in the house, out of the way of household traffic, where she davens undisturbed.

Daven in the same shul

(3) A third approach is advanced by Rabbeinu Manoach, who explains that establishing a place in which to daven means that someone should not daven randomly in different shullen, but should always daven in the same shul.

If we combine these three approaches, to guarantee the reward that the G-d of Avraham will assist him and that upon his passing, they will say about him that he was exceedingly humble and exceedingly righteous and a disciple of Avraham Avinu, a person should be careful to daven in the same place, in the same shul, whenever he can, and, certainly, on a regular basis.

The Shulchan Aruch (Orach Chayim 90:19) concludes that one should always have a set place to daven, whether at home or in shul. He does not mention davening in a specific shul, implying that he is following the view of the Rosh, the second of the three opinions that I quoted. This fits the Shulchan Aruch’s general halachic opinion of ruling according to one of the three, main accepted poskim of Klal Yisrael: the Rif, the Rambam and the Rosh.

Notwithstanding this halachic ruling, the authorities conclude that it is permitted to change your place (either the beis haknesses, or the place therein) when there is reason to do so (see Tur Orach Chaim 90; Shulchan Aruch, Orach Chayim 90:19). The Pri Megadim (Eishel Avraham 90:33) mentions that, in places that have two separate structures for the tefillos, one for winter and another for summer, changing from one to the other does not run counter to this halacha.

Rav Shelomoh Zalman Auerbach ruled that one may daven each of the three daily tefillos in different shullen, as well as the weekday prayers in one shul and the Shabbos tefillos in another (Halichos Shelomoh, Tefillah, Devar Halacha 5:2). It is unclear whether Rav Shlomoh Zalman understood that this approach accommodates Rabbeinu Manoach’s understanding of the Gemara, or that the Shulchan Aruch and later authorities do not follow Rabbeinu Manoach’s ruling.

Avoid idols

Another very important consideration is a ruling of the Avnei Neizer (Orach Chaim #32), that it is forbidden to daven in a room that is underneath the residence of a non-Jew, out of concern that the non-Jew has an idol or icon in his home, an assumption he makes in his time and place, 19^th century Russia. In today’s world, this may still apply, depending on the faith of the upstairs neighbor.

Choice of Shullen

There is discussion in the Gemara and poskim concerning what is the preferred shul that one should choose to daven in. Of course, we are assuming that all the choices are conducive to davening with proper focus.

Closer or farther?

The Gemara (Bava Metzi’a 107a) quotes a dispute between Rav and Rabbi Yochanan, whether it is preferable to attend a shul that is closer, so as to regularly be among the first ten in shul (Toras Chaim, ad loc.), or a more distant shul, to receive reward for each step getting there. The poskim conclude that it is preferable to go to the shul that is farther away and receive the extra reward for every step (Magen Avraham 90:22; Graz 90:12). As we know, most people choose to daven at the most convenient, nearest shul. We should rethink this practice.

Larger or smaller?

Another consideration in choosing shullen is which one has the larger regular attendance. This is based on the concept of “berov am, hadras melech” – “a multitude of people is the King’s glory” (Mishlei 14:28).

Shul or Beis Hamedrash

The Gemara (Berachos 8a) asks: “What is the meaning of that which is written: ‘Hashem loves the gates of Zion more than all the sanctuaries of Yaakov’ (Tehillim 87:2)? Hashem loves the gathering places in which halacha is determined. This accords with what Rav Chiya bar Ami reported, quoting Ulla: Since the day that the Beis Hamikdash was destroyed, Hakadosh boruch Hu has nothing in His world but the four amos of halacha.” The Gemara says that some amora’im were particular to pray “between the pillars where they learned,” referring to the pillars upon which the study hall was supported (Rashi). The Gemara specified “between the pillars,” indicating that not only did they daven in the study hall, as opposed to the beis haknesses, but they davened in the exact location where they studied (Ma’adanei Yom Tov, Berachos 1:7:70).

We see from this that there is preference to daven in a beis hamedrash where Torah is studied, as opposed to a beis haknesses used solely for davening (see Shulchan Aruch, Orach Chayim 90:18).

What is the best choice for a makom kavua? The best option is for a person to daven in a beis hamedrash, particularly the one where he usually studies Torah, or in a beis haknesses, with a minyan. These choices are preferable to davening with a minyan elsewhere, such as at home, a simcha hall or an office building (Mishnah Berurah 90:27). However, none of these are greater priorities than the ability to concentrate on the davening. Therefore, should someone find that he cannot focus on his davening in shul but can do so in a minyan in someone’s home, it is preferable to daven with the home minyan (Mishnah Berurah 90:28).

If a person cannot attend shul to daven with a minyan, he should daven at home at the same time that they are davening in shul. This means that he should begin his shemoneh esrei at the same time that the congregation with whom he usually davens begins theirs. This is because the time that the tzibbur is davening is considered to be an “eis ratzon,” a time of Divine favor (Pri Chadash 90:9; Pri Megadim 90, Eishel Avraham #17).

Conclusion

Man was created by Hashem as the only creation that has free choice. Therefore, our serving Hashem and our davening is unique in the entire spectrum of creation. Three times a day, we merit an audience with the Creator of the Universe, a golden opportunity to praise, thank and beseech Hashem. As the Kuzari notes, every day should have three very high points — the three times that we daven. We should gain our strength and inspiration for the rest of the day from these three prayers.

Understanding how much concern Chazal placed on the relatively minor aspects of davening should make us even more aware of the fact that davening is our attempt at building a relationship with Hashem. How much preparation should this entail? Is it proper to merely jump into the davening without any forethought? Through tefillah we save lives, bring people closer to Hashem, and overturn harsh decrees. Certainly, one should do whatever one can to make sure to pay attention to the meaning of the words of one’s tefillah. One of the necessary preparations for tefillah is choosing where to daven. This sets the tone and contributes towards a successful prayer session. Let us hope that Hashem accepts our tefillos, together with those of all Klal Yisrael!

An Otzar Beis Din is literally “a storehouse operated by Beis Din.” Why would Beis Din operate a warehouse? Before explaining more fully the true purpose of an Otzar Beis Din, which is a halachically approved method of distributing shemittah produce, we must first review the halachos of shemittah. These rules fall under two general categories:

(1)   Laws of the Land

The Torah teaches that every seventh year is shemittah, and we are prohibited from working the land of Eretz Yisrael. One may not plow, plant, prune, or harvest one’s grapevines as an owner, or perform most other agricultural work. Furthermore, one may not allow one’s land to be worked during shemittah, even by a non-Jew.^[1] One may perform activities whose purpose is to prevent loss, such as watering plants and trees so that they do not die.^[2]

The landowner may not treat what grows during shemittah as his own; rather, he must allow others to enter his field or orchard and help themselves. They may take only as much as their family will eat, and the landowner himself may also take this amount.^[3] One may not sell shemittah produce in a business manner.^[4]

(2) Laws of the Fruit

Shemittah produce is imbued with special sanctity called kedushas shevi’is. The Torah provides specific rules that govern how one treats such produce. These laws fall under the following categories:

a.       Commerce with Shemittah Produce

One must be careful not to sell shemittah produce in a way that implies that one is its true owner. For this reason, shemittah produce may not be sold by weight or measure^[5] nor sold in a regular store.^[6] Instead it should be distributed in a way that implies that this is a division of produce rather than a sale.

One may not export shemittah produce to chutz la’aretz.^[7] The later poskim even dispute whether one may ship esrogim to chutz la’aretz for people to fulfill the mitzvah of Arba Minim.^[8]b.      Sefichin

The Torah permits eating produce that grew by itself, without the farmer working the field during shemittah. However, Chazal felt it necessary to prohibit grains and most vegetables that happened to grow on their own during shemittah year or were planted in violation of the laws of shemittah. This was because even in the days of Chazal it was unfortunately common to find Jews who deceitfully ignored shemittah laws. One practice of enterprising, unscrupulous farmers was to plant grain or vegetables and market them as produce that grew on its own.

To discourage this illegal business, Chazal forbade even grains and vegetables that grew on their own, a prohibition referred to as sefichin (literally, “plants that sprouted”). Several exceptions were made, including produce grown in the field of a non-Jew, who has no obligation to observe shemittah.^[9]

c.       Hefker – Ownerless

Since all shemittah produce is halachically ownerless, every consumer has the halachic right to “help oneself” to whatever his family might eat. The poskim dispute whether one has the right to do this even if the owner is not halachically compliant and does not give others permission to enter his field.

The Otzar Beis Din

With this introduction, we can now discuss an Otzar Beis Din.

The owner of a vineyard is not required to produce wine for me, only to allow me to harvest the grapes for myself. If I do not have the equipment or expertise to press and process grapes into wine or olives into oil, I will be unable to utilize my rights to these fruits. Similarly, although I have a right to travel from Yerushalayim to pick citrus, mangos and bananas grown along the coast or in the northern part of the country, it is not that convenient for me to go. How then can I possibly utilize the benefit of shemittah?

Enter the Otzar Beis Din. The Beis Din represents the consumer and hires people to gather the fruit, crush the grapes and olives into juice and oil, ferment the juice into wine, package the product, and then distribute it to the consumer. The Otzar Beis Din acts as the consumer’s agent and hires pickers, truckers, and other laborers; rents wine production equipment; purchases the bottles; produces shemittah fruits, wines and oils; and delivers them to a convenient distribution center near my house.

Obviously, the Otzar Beis Din cannot expect the pickers, truckers, and other laborers to work as unpaid volunteers, nor can they use the production equipment without paying rent. Similarly, the managers who coordinate this project are also entitled to a wage for their efforts. The Otzar Beis Din divides these costs among the consumers. However, no charge is made whatsoever for the fruit, since they are hefker; the charges are only for the labor and other costs involved. Thus, Otzar Beis Din products should cost less than regular retail prices for the same items.

Similarly, the farmer is required to allow anyone to enter his field and help himself to his crops. However, since it is inconvenient for a resident of Yerushalayim to travel to an orchard in the northern part of Israel or along its coast to pick oranges and bananas, the Otzar Beis Din picks and transports the fruit to the consumer. All the other halachos of shemittah apply to this produce.

The Development of a ‘Modern’ Otzar Beis Din

The rabbonim and Beis Din of Yerushalayim organized the first “modern” Otzar Beis Din over 110 years ago. In 5670 (1910), Rav Tzvi Hirsch Cohen, a talmid chacham from Rechovot who owned vineyards and orchards, came to the rabbonim of Yerushalayim requesting that they function as his Beis Din to distribute the wine and fruit from his orchards for the coming shemittah. The written contract, signed by Rav Chayim Berlin, Rav Yosef Chayim Sonnenfeld, Rav Tzvi Pesach Frank, Rav Yisrael Yaakov Yaavetz and Rav Moshe Nachum Wallenstein, enabled Yerushalayim residents to receive wine and fruit from Rav Cohen’s orchards.

Someone had to arrange to harvest the fruit, process the grapes into wine, and transport the products to Yerushalayim. Since Rav Cohen was the most qualified person to take care of these arrangements, the Beis Din appointed him to be their representative on behalf of the general public. As an agent, he was entitled to a wage for his work, as were the other employees who harvested, crushed, packaged, and transported the crop, but no one was entitled to any profits on the produce.

The Beis Din established several rules to maintain that the laws of shemittah were scrupulously kept in this arrangement, and to guarantee that Rav Cohen was paid as a manager and not as an owner of the product. For one thing, they predetermined the price that the consumer would pay for the wine, guaranteeing that it was significantly lower than its usual market price.^[10]

Because of the laws governing the harvest and use of shemittah products, the Beis Din also insisted on the following rules:

• The wine and fruits could be distributed only to people who would observe the shemittah sanctity of the products.^[11]
• The vineyards and orchards had to be available for any shemittah-observant person to enter and harvest for his own needs.^[12]
• The products were not distributed through stores, but were divided as a communal division of bulk product.
• The products were not weighed or measured. Each individual who participated in dividing the shemittah produce paid Rav Cohen as Beis Din’s agent, for which the consumer was entitled to ‘shares’ of wine and produce, which were delivered in bulk containers without an exact weight.
• The actual harvest of the product was performed by non-Jews and in an atypical way.^[13]

In his analysis of the procedure of an Otzar Beis Din, the Chazon Ish follows a more lenient approach than that of the above-mentioned Beis Din of Yerushalayim.^[14] He ruled that representatives of an Otzar Beis Din may harvest in the normal way and use Jewish labor. Thus, the Otzar Beis Din of a modern farm that follows the Chazon Ish’s ruling allows Jewish staff to use tractors and other equipment to harvest and process the shemittah produce.^[15]

In addition, the Chazon Ish permitted weighing and measuring produce sold through Otzar Beis Din. In his opinion, the prohibition against weighing and measuring shemittah produce is only because this indicates that I am the owner of the produce. However, weighing and measuring Otzar Beis Din produce is to determine a fair division of costs involved in supplying the produce, and not to demonstrate ownership.

In today’s Otzar Beis Din, the grower plants everything before shemittah and is given extremely detailed instructions regarding what he may and may not do during shemittah. The grower must allow any shemittah-observant person to enter the field or orchard and help himself to the produce.^[16]

The Heter Otzar Beis Din Controversy

The modern term, heter Otzar Beis Din, is used pejoratively. The purpose of an Otzar Beis Din is to service the consumer, not the producer, as explained above.

Unfortunately, unscrupulous individuals sometimes manipulate the rubric of Otzar Beis Din to allow a “business as usual” attitude and violate both the spirit and halacha of shemittah. I know of farms that call themselves Otzar Beis Din but, in reality, bar free entry of their fields during shemittah, or the field owner treats the produce as completely his own and charges accordingly.

Since this contradicts the meaning of Otzar Beis Din, these cases are called heter Otzar Beis Din, meaning permitting something based on an abuse of the concept of Otzar Beis Din. Because of these concerns, some hechsheirim discourage the use of Otzar Beis Din. Thus, in practice, Otzar Beis Din becomes a michshol when it degenerates into a heter Otzar Beis Din. Indeed, as with every “treasure,” one must make every effort to ensure its principle stays intact. How much more so with the principles of the Otzar Beis Din!

Conclusion

Just as observing the seventh day, Shabbos, demonstrates our beliefs in the Creator, so too, observing every seventh year as shemittah demonstrates this faith. For someone living in Eretz Yisrael, observing shemittah properly involves assuming much halachic responsibility and education. For the modern farmer, observing shemittah can indeed be true mesiras nefesh, since among the many other concerns that he has, he also risks losing customers who have been purchasing his products for years. For example, a farmer may be selling his crop somewhere in Europe. If he informs his buyer that he cannot produce during shemittah, he risks losing the customer in the future.

Of course, a Jew realizes that Hashem provides parnasah and that observing a mitzvah will never hurt anyone. An observant farmer obeys the Torah dictates knowing that Hashem attends to all his needs. Indeed, recent shemittos have each had numerous miracles rewarding observant farmers in this world for their halachic diligence. Who can possibly imagine what reward awaits them in Olam Haba!

---

^[1] Avodah Zarah 15b.

^[2] Moed Katan 3b; Rambam, Hilchos Shemittah 1:10; Cf. Chazon Ish, Shevi’is 16:4, 21:14, who is more lenient.

^[3] Rambam, Hilchos Shemittah 4:1.

^[4] Ibid., 6:1.

^[5] Mishnah Shevi’is 8:3.

^[6] Yerushalmi Shevi’is 7:1.

^[7] Mishnah Shevi’is 6:5.

^[8] Beis Ridbaz 5:18; Shu’t Igros Moshe, Orach Chayim 1:186.

^[9] Rambam, Hilchos Shemittah 4:29.

^[10] Sefer Minchas Yerushalayim, page 161.

^[11] Ibid., 163; see also Tosefta Shevi’is 6:11.

^[12] Sefer Minchas Yerushalayim, page 181.

^[13] Katif Shevi’is, page 125.

^[14] Shevi’is 11:7 s.v. bemashekasavti

^[15] Sefer Hashemittah, 21.

^[16] Mishpetei Aretz, page 103.

Shampooed Tevel

“I have been looking for a specialty shampoo that contains oat bran. Someone found it in a very expensive store, and it does exactly what I want. One day, after showering, I noticed the label says that it is made in Israel! Does this mean that it is prohibited as tevel (produce that did not have terumah or maaser separated)?”

Introduction

The end of parshas Korach contains many references to various mitzvos that the Torah calls “terumah.” In Modern Hebrew, any charitable donation is called a “terumah,” but, in the Torah, this word means an “elevated portion” and can refer to numerous sanctified foods, including korbanos, challah, bikkurim, maaser, and what we usually call terumah and terumas maaser. The fact that the term “terumah” may refer to so many different things is one reason why a superficial reading of the end of parshas Korach can be confusing, unless you study it with Rashi or a different commentary (such as that of Rav Hirsch) that explains the parsha according to the Torah she’be’al peh.

The pesukim in parshas Korach that discuss what we call terumah read as follows: “And Hashem spoke to Aharon: Behold, I have hereby given you the guarding of my terumah… Of the best of the oil, of the best of the wine (tirosh) and grain, the first of what is given to Hashem I have given to you (Bamidbar 18, 1,12).”

Note that the Torah mentions terumah of oil, referring to the olive crop, of tirosh, usually understood to mean as yet unfermented wine (also known as unpasteurized grape juice), and of grain. This implies that the mitzvah min haTorah of separating terumah applies only to olive oil, wine and grain. Indeed, most authorities understand that, min haTorah, the requirement to separate terumos and maasros applies only to the five species of grain (wheat, barley, spelt, rye and oats), grapes, olives, grape juice, wine and olive oil (see Sifra). The requirement to separate terumos and maasros on other fruits and vegetables is rabbinic.

In Chazal’s terminology, the various gifts provided to the kohein and others are called matanos, gifts. These matanos have varying levels of sanctity:

A. Very holy, that may be eaten only by male kohanim in the Beis Hamikdash and only when someone is completely tahor;

B. Somewhat less holy, that min haTorah may be eaten anywhere by a kohein’s immediate household, provided that they are completely tahor;

C. Lesser sanctity that may be eaten by anyone, but only in Yerushalayim and when tahor;

D. No sanctity at all, and, although required to be donated, may be eaten by anyone.

Seven of these “gift” agricultural mitzvos or matanos can be organized in the following way:

1. Bikkurim — (sanctity level: B)

The first fruits of the seven species for which Eretz Yisrael is lauded, which are brought to the Beis Hamikdash. These are treated with the same level of sanctity as terumah¸ which we will explain shortly.

2. Terumah gedolah, usually called just “terumah” — (sanctity level: B)

The separation from produce grown in Eretz Yisrael that the Torah requires we give to the kohein. There is a requirement miderabbanan to separate terumah and maasros also outside Eretz Yisrael, but, according to most authorities, only in lands that are adjacent to Eretz Yisrael. (Because of space considerations, we will not be discussing the vast halachic literature that debates whether there is a requirement to separate terumos and maasros today in countries like Egypt, Lebanon, Syria and Jordan, which border on Eretz Yisrael. For the same reason, we will not discuss where the borders of Eretz Yisrael are, germane to these mitzvos.We will also not discuss the question as to whether there is a mitzvah to separate terumos and maasros on produce grown by a non-Jew on a non-Jew’s land, because the accepted practice, going back hundreds of years, is to be lenient.)

How much terumah?

Min haTorah, there is no minimal requirement how much terumah one must give to a kohein; to quote Chazal, one wheat kernel given as terumah exempts an entire silo. In the days when the kohein could become completely tahor and then eat the terumah, Chazal instituted a minimal percentage of the crop that should be designated as terumah (one part in sixty, or 1.67%), but preferred that an individual give more. They allowed the individual latitude to decide how much he wants to donate as terumah: one part in forty (2.5%), one part in fifty (2%), or the minimum I mentioned above, one part in sixty (1.67%).

Produce that has not yet had terumos and maasros separated is called tevel, and may not be eaten or used.

We should also note that, according to accepted halacha, the obligation of separating terumos and maasros today is only miderabbanan, even on grain, grapes, and olives, until such time that most Jews, again, live in Eretz Yisrael.

3. Maaser rishon — (sanctity level: D, but only after the terumas maaser is separated)

The first tithe (one tenth), given to the levi.

4. Terumas maaser — (sanctity level: B)

A tithe separated by the levi from the maaser rishon that he receives, which the levi then gives to a kohein. Since the levi receives ten percent of the crop after terumah has been separated, and he, in turn, is separating ten percent of what he receives, terumas maaser adds up to one hundredth, 1%, of the crop.

Terumah and terumas maaser have the same sanctity, which means that, min haTorah, both of them may be eaten anywhere, but only by a kohein and most of his family and household members and only when both they and the terumah are completely tahor.

The accepted halacha is that the remaining maaser rishon has no sanctity, and may be eaten by anyone, notwithstanding the fact that there is a dispute among tana’im concerning this issue. If the levi chooses to, he may sell the maaser or give it away to whomever he chooses. Furthermore, none of the restrictions we will discuss shortly regarding redemption or use applies to maaser rishon.

A kohein or levi who has his own produce must separate terumos and maasros, although he may then keep what he is entitled to as a kohein or levi (Rambam, Hilchos Maasros 1:13; for details of this law, see Mishpetei Aretz, Terumos Umaasros 13:9).

5. Maaser sheini — (sanctity level: C)

A second tithe, separated in the first, second, fourth and fifth years of the seven-year shemittah cycle, that the owner keeps with plans to eat in Yerushalayim when he is tahor. Alternatively, the owner may redeem the maaser sheini’s kedusha onto coins. The coins are brought to Yerushalayim and used to purchase food that is eaten in Yerushalayim. Maaser sheini that is tahor may be eaten by anyone who is tahor and maaser sheini that is redeemed may be eaten by anyone and does not need to be kept tahor.

6. Maaser ani — (sanctity level: D)

A different form of “second tithe,” given in years when there is no maaser sheini (i.e., the third and sixth years of the shemittah cycle), that is given to the poor. Once separated, this maaser has no special sanctity and may be eaten by anyone, even by someone who is tamei, but it is property of the poor. The owner of the field decides to which poor person he gives the maaser ani.

Since shemittah produce is ownerless, there are, usually, no terumah and maasros separations that year. In the unusual instances where there are, which is a topic for a different time, there is extensive halachic discussion whether one separates maaser sheini or maaser ani.

7. Challah — (sanctity level: B)

A portion given to the kohein separated from dough. This “gift” has the level of sanctity of terumah.

Separating and giving

In general, most of these matanos require two stages to fulfill the mitzvah. The first stage is the proper separation, usually preceded by a brocha, and the second stage is giving the matanah to the appropriate party. As I mentioned above, in the case of maaser sheini, the owner keeps or redeems the produce (rather than giving it to someone). After redeeming maaser sheini, the fruit has no more sanctity.

There are several situations in which there is a mitzvah to separate terumos and maasros, but there is no mitzvah to give the matanah to a kohein, levi or poor person. The most common situation is when it is uncertain, a safek, whether there is a requirement to separate terumos and maasros. We will discuss shortly one such example. In these instances, you are not required to give away the terumos and maasros. They are yours to sell, or even to eat, if there is no sanctity involved, such as maaser rishon or maaser ani (Shulchan Aruch, Yoreh Deah 371:1).

There is another practical halachic difference when it is uncertain if there is a requirement to separate terumos and maasros: no brocha is recited prior to separating the terumos and maasros.

Using terumah

In today’s world, terumah has relatively little market value. Terumah tehorah may be eaten only by a kohein or his family members who are tehorim. Since we have no parah adumah, we cannot become fully tehorim today and therefore, no one can eat terumah tehorah.

Although terumah may not be eaten today, there are still two potential uses that may be made of terumah. Terumah olive oil may be kindled, but the light must be used by a kohein. If the terumah olive oil is tehorah,care must be taken not to make it tamei. Terumah temei’ah may be used by a kohein for kindling without this concern.

There is also the possibility of using terumah for feeding animals owned by a kohein, a topic that I will leave for a different time, because of space considerations.

The question now becomes what to do with terumah tehorah that has no practical use.

At the beginning of this article, I quoted the pasuk that Aharon was instructed regarding the guarding of my terumah. The term guarding, mishmeres, means that one is required to make sure the terumah is not actively destroyed or made tamei.

Since no one is tahor today, terumah may not be eaten. If the terumah is itself tamei, it is destroyed, preferably by burning it. If the terumah is tehorah, we are neither permitted to eat it nor to destroy it because of the law of mishmeres. What does one do with it?

This is a dispute among halachic authorities, and one of the unusual situations in which Rav Moshe Feinstein disagreed with the opinion of rishonim, without finding a source in rishonim that agreed with him. According to the Sefer Haterumah and the Tur (Yoreh Deah, 331), the halacha requires that terumah tehorah be buried, so that no one mistakenly eats it. Rav Moshe rules that this is considered destroying terumah, since this causes the terumah to rot, which is prohibited. Instead, he requires placing the terumah tehorah in a place where it will be left undisturbed until it decays (Shu’t Igros Moshe, Yoreh Deah 3:129). A bin or box set aside for this purpose is called a pach terumah, where the terumah tehorah remains until inedible. When it decomposes to this extent, one may dispose of the produce in the regular garbage.

Why is this true?

Once terumah or tevel can no longer be eaten,  it loses its sanctity. Although the concept that decay eliminates sanctity seems unusual, this is only because we are unfamiliar with the mitzvos where this principle applies. Other mitzvos where this concept exists are shevi’is, terumah, challah, bikkurim, maaser sheini and reva’ie (Rambam, Hilchos Terumos Chapter 11; Hilchos Maaser Sheini 3:11; Hilchos Shevi’is 5:3). We burn the special challah portion after separating it only because it has become tamei. If the challah did not become tamei, one may not destroy it but must place it somewhere, until it decays on its own.

Shampooed tevel

At this point, we can discuss our opening question:

“I have been looking for a specialty shampoo that contains oat bran. Someone found it in a very expensive store, and it does exactly what I want. One day, after showering, I happened to look at the label and noticed that it says that it is made in Israel! Does this mean that it is prohibited as tevel?”

Indeed, our questioner may have surmised correctly that the oat bran mighthave once had the status of tevel. If the oats were grown for food, one would be required to separate from them terumos and maasros, and the oats would have a status of tevel until these are separated. However, if the oats were grown for animal feed, there would be no requirement terumos and maasros and no status of tevel. because oats are commonly grown as forage.

More germane to our discussion is that, even if the oats were grown for food, once mixed into the shampoo as an ingredient, they become inedible and lose their status as tevel. Whether they naturally decayed to a stage where they became inedible or were processed or mixed until that point, the kedusha of tevel, terumos and maasros is lost. So, our consumer may continue using the shampoo without any halachic concerns.

Other terumah rules

Cultivated food items, other than grain, grapes and olives, that grew in Eretz Yisrael are obligated in terumos and maasros miderabbanan. There are a few interesting exceptions: for example, there is no obligation to separate terumos and maasros from mushrooms; since they are fungi, they are not considered as growing from the ground. This also affects their brocha, which is shehakol and not ha’adamah.

If I might digress, here is an interesting nifla’os haborei experiment that you can perform yourself. Take some raw vegetables and microwave them for two minutes, and then do the same with some raw mushrooms. When you microwave the mushrooms there will be a considerable amount of water, which does not happen when you microwave the veggies. The reason is that vegetables draw water from the earth through their root, and therefore have no need to store a lot of water in the plant itself. However, mushrooms have no means to draw nutrients, including water, from the soil, and therefore store the water that they need in their cells. When you microwave them, this water is now released.

Ownerless produce

There is no requirement to separate terumos or maasros from produce that is ownerless, such as wild-growing wheat. Similarly, that which grows during shemittah year and is treated as hefker is exempt from terumos and maasros.

Plants grown as fodder, borders, cloth, seed, dyes or anything other than food are exempt from terumos and maasros. If part of the plant is eaten, but the seeds are usually not, the seeds are exempt from terumos and maasros. Rav Shelomoh Zalman Auerbach ruled that produce such as barley, oats and corn (maize), which are predominantly grown as fodder, are exempt from terumos and maasros, unless they were originally planted for human consumption. In his opinion, if they were planted for food, and the farmer subsequently changed his mind and decided to use them as fodder, they are still obligated in terumos and maasros, since they were originally planted for food (Maadanei Aretz, Terumos 2:7:2).

Herbs and spices

As a general rule, plants grown for use only as herbs, spices or tea are exempt from terumos and maasros. It is disputed whether plants whose product is sometimes eaten as a dip is exempt from terumos and maasros. Therefore, accepted practice is to separate terumos and maasros from them without reciting a brocha first, and the owner may then keep the terumos and maasros, as explained above.

What does this mean in practice? Plants such as aloe vera (usually not eaten, but even when consumed, only as an herb), cinnamon, cloves and nutmeg are all exempt from terumos and maasros. However, mustard, ginger and fenugreek should have terumos and maasros separated without a brocha. Although all three of these are used as spices, they also are made into dips or other foods, such as prepared mustard, candied ginger, or chilba, a popular Yemenite dip whose main ingredient is fenugreek.

Peels and shells of fruit that was not maasered are exempt from terumos and maasros if the peels and shells are usually not eaten. However, the peels of apples, pears and plums must be maasered, either as part of the entire fruit, or by themselves. In places where watermelon seeds are considered a snack food, as in Eretz Yisrael today, they are obligated in terumos and maasros. The Chazon Ish ruled that candied orange peel is exempt from terumos and maasros because oranges are not grown for the peel; it is a by-product that someone figured out how to make useful.

Many years ago, when I was involved in kashrus supervision in North America, a similar shaylah was raised. A company that I was overseeing produced, predominantly, various citrus and mint flavors and products, many of them extracted or distilled. Among the many raw materials that were used were oils extracted from the peels of various citrus fruits, which were then processed and used as flavors. Some of the oils were extracted from Israeli produce, and the question was whether there was a requirement to separate terumos and maasros from these peels. The poskim of the kashrus organization ruled that there was no requirement to do so, since peels of citrus fruits are not usually eaten.

Conclusion

Many generations had to be content with reading about Eretz Yisroel and imagining what it might be like to visit. We are fortunate to live in a time when visiting and living in Eretz Yisroel is a reality, and we should be filled with hakoras hatov that we can traverse the land that was promised to our forefathers. Inhabiting our native land includes many special laws that apply within its borders, and we should all be familiar with these special laws. Eretz Yisroel and its special mitzvos provide us with a direct relationship with Hashem, for which we should all strive.

This Shabbos is parshas Ki Savo, 10 days before Rosh Hashanah of shmittah year.

We are at the end of the sixth year of the shmittah cycle. Most chutz la’aretz residents are not that familiar with the laws of shmittah that will affect those who live in Eretz Yisroel every day next year. Actually, the laws can and do affect people living in chutz la’aretz also. This article will focus on explaining a basic glossary of shmittah-related terms.

Among the terms that we will learn are the following:

Biur

Havla’ah

Heter mechirah

Heter otzar beis din

Issur sechorah

Kedushas shvi’is

Ne’evad

Otzar beis din

Pach shvi’is

Sefichin

Shamur

Tefisas damim

First, let us discuss the basics:

Basic laws of the land

In Parshah Behar, the Torah (Vayikra 25:1-7) teaches that every seventh year is shmittah. We are prohibited from plowing, planting or working the land of Eretz Yisroel in any way and must leave our land fallow. It is even prohibited to have a gentile work a Jew’s land (Avodah Zarah 15b), just as one may not hire a gentile to do work on Shabbos that a Jew may not do. The owner of a field or orchard must treat whatever grows on his land as ownerless, allowing others to enter his field or orchard to pick, without charge, as much as their families can use. The landowner himself also may pick as much as his family will eat (see Rambam, Hilchos Shmittah 4:1).

The landowner should make sure that others know that they may help themselves to the produce. One may not sell, in a business manner, the produce that grows on its own.

Kedushas shvi’is

The Torah declared vehoysah shabbas ha’aretz lochem le’ochlah, “the produce of the shmittah should be used only for food” (Vayikra 25:6), thereby imbuing the fruits and vegetables that grow in shmittah year with special sanctity, called kedushas shvi’is. There are many ramifications of this status, such as, the produce that grows during shmittah year should be used only for consumption and should be eaten (or drunk) only in the usual way. For example, one may not cook foods that are usually eaten raw, nor may one eat raw produce that is usually cooked (Yerushalmi, Shvi’is 8:2; Rambam, Hilchos Shvi’is 5:3). One may not eat raw shmittah potatoes, nor may one cook shmittah cucumbers or oranges. It would certainly be prohibited to use shmittah corn for gasohol or any other form of biofuel.

Contemporary authorities dispute whether one may add shmittah oranges or apricots to a recipe for roast or cake. Even though the fruit adds taste to the roast or cake, many poskim prohibit this cooking or baking, since these types of fruit are usually eaten raw (Shu”t Mishpat Cohen #85). Others permit this if it is a usual way of eating these fruits (Mishpetei Aretz page 172, footnote 10).

Similarly, juicing vegetables and most kinds of fruit is considered “ruining” the shmittah produce and is prohibited, although one may press grapes, olives and lemons, since the juice and oil of these fruits are considered superior to the fruit itself. Many contemporary authorities permit pressing oranges and grapefruits, provided one treats the remaining pulp with kedushas shvi’is. Even these authorities prohibit juicing most other fruit, such as apples and pears (Minchas Shlomoh, Shvi’is pg. 185).

Food and not feed

One may feed shmittah produce to animals only when it is not fit for human consumption, such as peels and seeds that people do not usually eat (Rambam, Hilchos Shmittah 5:5). Last shmittah, a neighbor of mine, or perhaps his turtle, had a problem: The turtle is fond of lettuce, and won’t eat grass. One may feed animals grass that grew in Eretz Yisroel during shmittah, but one may not feed them lettuce that grew during shmittah.

Jewish consumption

Shmittah produce is meant for Jewish consumption; one may not give or sell kedushas shvi’is produce to a gentile, although one may invite a gentile to join your meal that includes shmittah food (Rambam, Hilchos Shmittah 5:13 as explained by Mahari Korkos).

Although some authorities rule that there is a mitzvah to eat shmittah produce, most contend that there is no obligation to eat shmittah food – rather, the Torah permits us to eat it (Chazon Ish, Hilchos Shvi’is 14:10).

Don’t destroy edibles

One may not actively destroy shmittah produce suitable for human consumption. Therefore, one who has excess shvi’is produce may not trash it in the usual way.

Peels that are commonly eaten, such as apple peels, still have kedushas shvi’is and may not simply be disposed. Instead, we place these peels in a plastic bag and then place the bag in a small bin or box called a pach shvi’is, where it remains until the food is inedible. When it decomposes to this extent, one may dispose of the shmittah produce in the regular garbage.

Why is this true?

Once the shmittah produce can no longer be eaten, it loses its kedushas shvi’is. Although the concept that decay eliminates sanctity seems unusual, this is only because we are unfamiliar with the many mitzvos where this principle applies. There are several other mitzvos where, in theory, this rule applies – meaning that the items have kedushah that governs how they may be consumed, but once they are no longer edible, this kedushah disappears. The mitzvos that this rule applies to are terumah, challah, bikkurim, revai’i and maaser sheini. However, although this rule applies to these mitzvos, in practice we cannot observe it since produce that has kedusha cannot be consumed by someone who is tamei (Rambam, Hilchos Terumos Chapter 11; Hilchos Maaser Sheini 3:11). This explains why most people are unfamiliar with the rules of kedushas shvi’is.

When eating shmittah food, one need not be concerned about the remaining bits stuck to a pot or an adult’s plate that one usually just washes off; one may wash these pots and plates without concern that one is destroying shmittah produce. However, the larger amounts left behind by children, or leftovers that people might save should not be disposed in the garbage. Instead, they can be scraped into the pach shvi’is.

Issur sechorah – commercial use

One may not harvest the produce of one’s field or tree in order to sell it in commercial quantities or in a business manner (Tosefta, Shvi’is 5:7; Rambam, Hilchos Shmittah 6:1). For example, shmittah produce may not be sold by weight or measure (Mishnah, Shvi’is 8:3), nor sold in a regular store (Yerushalmi, Shvi’is 7:1).

Tefisas damim

If one trades or sells shmittah produce, the food or money received in exchange becomes imbued with kedushas shvi’is. This means that the money should be used only to purchase food that will itself now have the laws of shmittah produce. The original produce also maintains its kedushas shvi’is (Sukkah 40b).

Havla’ah

At this point, we must discuss a very misunderstood concept called havla’ah, which means that one includes the price of one item with another. The Gemara (Sukkah 39a) describes using havla’ah to “purchase” an esrog that has shmittah sanctity, without the money received becoming sanctified with kedushas shvi’is. For example, Reuven wants to buy an esrog from Shimon; however, Shimon does not want the money he receives to have kedushas shvi’is. Can he avoid this occurring?

Yes, he may. If Shimon sells Reuven two items at the same time, one that has kedushas shvi’is and the other does not, he should sell him the item that does not have kedushas shvi’is at a high price, and the item that has kedushas shvi’is accompanies it as a gift. This method works, even though everyone realizes that this is a means of avoiding imbuing the sales money with kedushas shvi’is.

Shamur and ne’evad

According to many (and perhaps most) rishonim, if a farmer did not allow people to pick from his fields, the shmittah produce that grew there becomes prohibited (see Ra’avad and Ba’al Ha’maor to Sukkah 39a). This produce is called shamur. Similarly, many authorities prohibit consuming produce that was tended in a way that violated the agricultural laws of shmittah (Ramban, Yevamos 122a). This produce is called ne’evad.

Shmittah exports

The Mishnah (Shvi’is 6:5) prohibits exporting shmittah produce outside Eretz Yisroel. Some recognized authorities specifically permit exporting shmittah wine and esrogim, although the rationales permitting this are beyond the scope of this article (Beis Ridbaz 5:18; Tzitz Hakodesh, Volume 1 #15:4). This approach is the basic halachic reason to permit the export of esrogim that grow during shmittah next year for Sukkos, 5783. (The esrogim for this coming year will all be from the pre-shmittah crop and not involve any shmittah concerns.)

Sefichin

As explained in last week’s article, the prohibition of sefichin does not refer to perennials that do not require planting every year. Although trees and other perennials definitely thrive when pruned and cared for, most will produce even if left unattended for a year and the farmer has less incentive to violate shmittah by tending his trees.

Thus, tree fruits, nuts, strawberries and bananas do not involve the prohibition of sefichin. (If they grew in a field whose owner was not observing shmittah, they might involve the prohibition of shamur.)

Biur shevi’is

At this point in our discussion, we need to explain the concept of biur shvi’is. The word biur literally means elimination, as in biur chometz, which refers to the eradication of chometz performed each year before Pesach. One of the laws that applies to shmittah produce is that once a specific species is no longer available in the field, one can no longer keep shmittah produce from that species in one’s possession. At this point, one must perform a procedure called biur shvi’is. Although there is a dispute among the rishonim as to the exact definition and requirements of biur shvi’is, we rule that it means declaring ownerless (hefker) any shmittah produce in one’s possession (Ramban, Vayikra 25:7; cf. Rashi, Pesachim 52b s.v. mishum and Rambam, Hilchos Shmittah 7:3 for alternative approaches.) For example, let us say that I picked shmittah apricots and canned them as jam. When no more apricots are available in the field, I must take the remaining jam and declare it hefker in the presence of three people (Yerushalmi, Shvi’is 9:5). I may do this in front of three close friends who will probably not take the jam after my declaration; it is sufficient that they have the right to take possession. If someone fails to perform biur, the shmittah produce becomes prohibited.

Otzar beis din

What is an otzar beis din? Literally, the words means “a storehouse operated by beis din.” Why would a beis din be operating a storehouse? Did they need to impound so much merchandise while doing litigation? No, let me explain.

As mentioned above, the owner of an orchard may not harvest his produce for sale, and he must allow individuals to help themselves to what their family may use. But what about people who live far from the orchard? How will they utilize their right to pick shmittah fruit?

Enter the otzar beis din to help! The beis din represents the public interest by hiring people to pick and transport the produce to a distribution center near the consumer. Obviously, no one expects the pickers, sorters, truckers, and other laborers to work as unpaid volunteers; they are also entitled to earn a living. Similarly, the managers who coordinate this project are also entitled to an appropriate wage for their efforts. Furthermore, there is no reason why beis din cannot hire the owner of the orchard to supervise this massive project, paying him a wage appropriate to his significant skills and experience in knowing how to manage this operation. This is all legitimate use of an otzar beis din.

Who pays for otzar beis din services? The otzar beis din divides its costs among the consumers. The charges to the user should reflect the actual expenses incurred in bringing the products to the consumers, and may not include any profit for the finished product (Minchas Shlomoh, Shvi’is 9:8 pg. 250). Thus, otzar beis din products should cost less than regular retail prices for the same items, since there should be no profit margin. (See Yerushalmi, Shvi’is 8:3 that shvi’is produce should be less expensive than regular produce.)

Please note that all the halachos of kedushas shevi’is apply to otzar beis din produce. Also note that acquiring from an otzar beis din is not really “purchasing” since you are not buying the fruit, but receiving a distribution – your payment is exclusively to defray operating costs. Therefore, the money paid for otzar beis din produce does not have kedushas shvi’is, because it is compensation for expenses and not in exchange for the shmittah fruit (Minchas Shlomoh, Shvi’is 9:8 pg. 250).

Produce still in the possession of an otzar beis din at the time of biur is exempt from biur. The reason is that this product is still without an owner – the otzar beis din is a distribution center, not an owner. However, produce originally distributed through an otzar beis din and now in private possession must be declared hefker.

Heter otzar beis din

The modern term “Heter otzar beis din” is used pejoratively. The purpose of an otzar beis din is to service the consumer, not the producer, as I explained above. Unfortunately, unscrupulous individuals sometimes manipulate the rubric of otzar beis din to allow a “business as usual” attitude and violate both the spirit and the halacha of shmittah. If the farmer is operating with a true otzar beis din, he will allow people to enter his field and help themselves to the produce. If he bars people, then he is violating the basic laws of shmittah and his produce distribution is not according to otzar beis din principles. Similarly, if the field owner treats the produce as completely his own and charges accordingly, this contradicts the meaning of otzar beis din. These cases are disparagingly referred to as heter otzar beis din; meaning they reflect abuse of the concept of otzar beis din.

Conclusion

Those living in chutz la’aretz should be aware of the halachos of shvi’is and identify with this demonstration that the Ribbono Shel Olam created His world in six days, thereby making the seventh day and the seventh year holy.

In a few short weeks, we will begin shmittah year. In preparation, I present this article.

Several shmittah cycles ago, I was working as a mashgiach for a properly run American hechsher. One factory that I supervised manufactured breading and muffin mixes. This company was extremely careful about checking its incoming ingredients: George, the receiving clerk who also managed the warehouse, kept a careful list of what products he was to allow into the plant and what kosher symbols were acceptable.

On one visit to the plant, I noticed a problem, due to no fault of the company. For years, the company had been purchasing Israeli-produced, freeze-dried carrots with a reliable hechsher. The carrots always arrived in bulk boxes, with the Israeli hechsher prominently stamped in Hebrew and the word KOSHER prominently displayed, in English. George, who always supervised incoming raw materials, proudly showed me through “his warehouse” and noted how he carefully marked the arrival date of each new shipment. I saw crates of the newest shipment of Israeli carrots, from the same manufacturer, and the same prominently displayed English word KOSHER on the box. However, the Hebrew stamp on the box was from a different supervisory agency, one without the same sterling reputation. The reason for the sudden change in supervisory agency was rather obvious, when I noted that the Hebrew label stated very clearly “Heter Mechirah.”

Let me explain the halachic issues that this product entails.

The Torah (Vayikra 25:1-7) teaches that every seventh year is shmittah and prohibits working the land of Eretz Yisroel. During that year, one may not plough, plant or work the field in any way. Furthermore, the farmer must treat whatever grows on his land as ownerless, allowing others to pick and keep his fruit. Many laws apply to the produce that grows during shmittah, including, for example, that one may not sell the produce in a business manner, nor may one export it outside Eretz Yisroel.

For the modern farmer, observing shmittah is indeed true mesiras nefesh, since, among the many other concerns that he has, he also risks losing customers who have been purchasing his products for years. For example, a farmer may be selling his citrus or avocado crop to a distributor in Europe who sells his produce throughout the European Community. If he informs his customer that he cannot export his produce during shmittah year, he risks losing the customer in the future.

Of course, a Jew realizes that Hashem provides parnasah and that observing a mitzvah will never hurt anyone. Therefore, a sincerely observant farmer obeys the Torah dictates, knowing that Hashem attends to all his needs. Indeed, recent shmittos have each had numerous miracles by which observant farmers were rewarded in this world for their halachic diligence. Who can possibly imagine what reward awaits them in Olam Haba!

Unfortunately, the carrot farmer here was not committed to this level of bitachon and, instead, explored other options, deciding to rely on heter mechirah. He soon discovered that his regular, top-of-the line hechsher would not allow this, so he found an alternative hechsher that allowed him to be lenient, albeit by clearly forewarning customers who may consider this product non-kosher. Although he realized that sales would suffer without his regular hechsher, he figured that selling some product is better than selling none.

WHAT IS HETER MECHIRAH?

The basic concept of heter mechirah is that the farmer sells his land to a gentile, who is not required to observe shmittah. Since a gentile now owns the land, the gentile may farm the land, sell its produce and make a profit. The poskim dispute whether a Jew may work land owned by a gentile during shmittah (Tosafos, Gittin 62a s.v. ein odrin, prohibits; Rashi, Sanhedrin 26a s.v. agiston, permits).

IS THIS ANY DIFFERENT FROM SELLING ONE’S CHOMETZ FOR PESACH?

Although some poskim make this comparison (Shu’t Yeshuos Malko, Yoreh Deah #53), many point out differences between selling chometz to a gentile and selling him land in Eretz Yisroel. Indeed, although the Mishnah (Pesachim 21a) and other early halachic sources (Tosefta, Pesachim 2:6) mention selling chometz to a non-Jew before Pesach, no early source mentions selling land in Eretz Yisroel to avoid shmittah (Sefer Hashmittah pg. 71). The earliest source I found discussing this possibility was an eighteenth-century responsum penned by Rav Mordechai Rubyou, the Rosh Yeshivah in Hebron at the time, who discusses the tribulations of a Jew owning a vineyard in Eretz Yisroel in that era (Shu’t Shemen Hamor, Yoreh Deah #4; this sefer was published posthumously in 1793).

HISTORY OF MODERN HETER MECHIRAH

Before explaining the halachic background to the heter mechirah question, I think it is important to understand the historical context of the shaylah.

Rav Yechiel Michel Tukachinski, one of the great twentieth-century poskim of Eretz Yisroel, describes the history and development of the use of heter mechirah. (My source for most of the forthcoming historical material is his work, Sefer Hashmittah.)

The first modern shmittah was in the year 5642 (1882), when there was a mere handful of Jewish farmers in Israel, located in Petach Tikvah, Motza and Mikveh Yisroel. The highly observant farmers in these communities were uncompromising in their commitment to keep shmittah in full halachic detail. [Apparently, at the same time, there were some Sefardi farmers in Israel whose rabbonim did allow them to sell their fields to a gentile for the duration of shmittah (see Shu’t Yeshuos Malko, Yoreh Deah #53; Shu’t Yabia Omer 3:Yoreh Deah #19:7).]

By the next shmittah, 5649 (1889), there was already a much larger Jewish agricultural presence in Eretz Yisroel. Prior to that shmittah year, representatives of the developing Israeli agricultural communities approached several prominent Eastern European gedolim, claiming that the new yishuv could not survive financially if shmittah was observed fully, and that mass starvation would result. Could they sell their land to a gentile for the duration of shmittah and then plant the land and sell its produce?

THE BEGINNINGS OF A CONTROVERSY

Rav Naftali Hertz, the rav of Yaffo, who also served as the rav of most of the agricultural communities involved, directed the shaylah to the gedolei haposkim of the time, both in Israel and in Europe. The rabbonim in Europe were divided, with many prominent poskim, including Rav Yehoshua Kutno, Rav Yosef Engel and Rav Shmuel Mahliver, approving the sale of the land to non-Jews as a hora’as sha’ah, a ruling necessitated by the emergency circumstances prevailing, but not necessarily permitted in the future. They permitted the heter mechirah, but only with many provisos, including that only non-Jews perform most agricultural work. On the other hand, many great European poskim prohibited this heter mechirah, including such luminaries as the Netziv (Rav Naftali Tzvi Yehudah Berlin, the Rosh Yeshivah of the preeminent yeshiva of the era in Volozhin, Lithuania), the Beis Halevi (3:1; Rav Yosef Dov Halevi Soloveichek), the Aruch HaShulchan (Rav Yechiel Michel Epstein) and Rav Dovid Karliner.

Rav Yitzchak Elchanan Spector, the rav of Kovno, Lithuania, whom many viewed as the posek hador, ruled that Rav Hertz could perform the sale and instructed him to have the great poskim of Yerushalayim actuate the sale.

This complicated matters, since the Ashkenazi rabbonei Yerushalayim universally opposed the heter mechirah and published a letter decrying it stridently. This letter, signed by the two rabbonim of Yerushalayim, Rav Yehoshua Leib Diskin and Rav Shmuel Salant, and over twenty other gedolim and talmidei chachamim, implored the farmers in the new yishuv to keep shmittah steadfastly and expounded on the Divine blessings guaranteed them for observing shmittah. The letter also noted that Klal Yisroel was punished severely in earlier eras for abrogating shmittah (see Avos Chapter 5). As Rashi (Vayikra 26:35) points out, the seventy years of Jewish exile between the two batei hamikdash correspond to the exact number of shmittos that were not observed from when the Jews entered Eretz Yisroel until the exile. The great leaders of Yerushalayim hoped that if Klal Yisroel observed shmittah correctly, this would constitute a collective teshuvah for the sins of Klal Yisroel and would usher in the geulah.

Rav Hertz, who had originally asked the shaylah, was torn as to what to do. Although he had received letters from some of the greatest poskim of Europe permitting the mechirah, the poskei Yerushalayim adamantly opposed it. He decided not to sell the land himself, but arranged mechirah for those who wanted it through the Sefardi rabbonim in Yerushalayim, who had apparently performed this mechirah in previous years.

What happened? Did the Jewish farmers observe the shmittah as instructed by the rabbonei Yerushalayim, or did they rely on heter mechirah? Although the very committed farmers observed shmittah according to the dictates of the gedolei Yerushalayim, many of the more marginally observant farmers acceded to the pressure and relied on heter mechirah. Apparently, many farmers were subjected to considerable financial and social pressure to evade observance of shmittah.

Prior to shmittah year 5656 (1896), Rav Hertz again considered what to do in the coming shmittah and approached the rabbonei Yerushalayim. This time, both Rav Shmuel Salant and Rav Yehoshua Leib Diskin approved the mechirah and even suggested to Rav Hertz how to arrange this mechirah in a halachically approved fashion.

WHAT CHANGED?

Why were the very same rabbonim who vehemently opposed the mechirah seven years earlier not opposed to it this time? Initially, these rabbonim felt that since we had now merited returning to Eretz Yisroel, we should make sure to observe all the mitzvos of Eretz Yisroel without compromise, and evading shmittah with heter mechirah runs totally counter to this spirit. However, upon realizing that few farmers had observed the previous shmittah properly, the feeling of these great gedolim was that without the option of heter mechirah, most farmers would simply conduct business as usual and ignore shmittah completely. Therefore, it was better to permit heter mechirah, while at the same time encourage farmers not to rely on it.

Prior to the next shmittah, in 5663 (1903), Rav Hertz re-asked his shaylah from the rabbonim of Yerushalayim, Rav Shmuel Salant and the Aderes, Rav Eliyahu Dovid Rabinowitz Teumim (Rav Diskin had passed on in the meantime), since the original approval stipulated only that shmittah. These rabbonim felt that there was still a need for heter mechirah in 5663. Rav Hertz, himself, passed away before the heter mechirah was finalized, and his son-in-law, Rav Yosef Halevi, a talmid chacham of note, finalized the mechirah in his stead, following the instructions of the rabbonei Yerushalayim.

Seven years later (5670/1910), Rav Avraham Yitzchak Kook was the rav of Yaffo and continued the practice of the mechirah, while at the same time encouraging those who would observe shmittah correctly to do so. He continued this practice of performing the heter mechirah for the several subsequent shmittos of his life.

In addition, Rav Kook instituted a new aspect to heter mechirah. Prior to his time, the heter mechirah involved that the owner of the farm appointed a rav as his agent to sell the land, similar to what we usually do to arrange selling the chometz. Rav Kook added that a farmer who was not going to observe shmittah but did not appoint a rav to sell his land was included in the mechirah, since it is in his best interest to have some heter when he works his field, rather than totally desecrating the Holy Land in the holy year. Although there is merit in protecting the farmer from his sin, now, a practical question results that affects a consumer purchasing this farmer’s produce. If the farmer did not authorize the sale, perhaps the produce indeed has the sanctity of shmittah. For this latter reason, many individuals who might otherwise accept heter mechirah produce do not rely on this heter.

By the way, although the original heter mechirah specified that gentiles must perform all plowing, planting and harvesting, this provision is no longer observed by some farmers who rely on heter mechirah. Many farmers who rely on heter mechirah follow a “business as usual” attitude once they have dutifully signed the paperwork authorizing the sale. Indeed, who keeps the profits from the shmittah produce, the Jew or the non-Jew to whom he sold his land? One can ask — is this considered a sale?

Another point raised is that, although Chazal also contended with much laxity in observing the laws of shmittah, they did not mention selling the land to evade the mitzvah. This is underscored by the fact that there are indeed precedents where Chazal mention ways to avoid observing mitzvos. For example, the Gemara mentions methods whereby one could avoid separating maaser, for those who want to evade this mitzvah, although Chazal did not approve doing so. Furthermore, when Hillel realized that people were violating the halachos of shmittas kesafim, he instituted the pruzbul. Yet, no hint of avoiding shmittah by selling land to a gentile is ever mentioned, thus implying that there is halachic or hashkafic difficulty with this approach (Sefer Hashmittah pg. 82).

SELLING ERETZ YISROEL

In addition to the question of whether one should evade performing a mitzvah of the Torah, the issue of heter mechirah involves another tremendous halachic difficulty. How can one sell any land of Eretz Yisroel, when the Torah prohibits selling it to a non-Jew (Avodah Zarah 20a), and Chazal prohibit even renting the land (Mishnah, Avodah Zarah 20b)?

Different poskim have suggested various approaches to avoid this prohibition. Some contend that selling land temporarily, with an expressed condition that it return to the owner, preempts the violation (Shu’t Shemen Hamor, Yoreh Deah #4), while others permit the sale since its purpose is to assist the Jewish presence in Eretz Yisroel (Shu’t Yeshuos Malko, Yoreh Deah #55; Yalkut Yosef pg. 666, quoting Rav Reuven Katz, the late rav of Petach Tikvah). Others contend that the prohibition extends only to selling land to an idol-worshipper, but not to a gentile who does not worship idols (Sefer Hashmittah, pg. 74; Yalkut Yosef pg. 665, quoting Mizbei’ach Adamah), whereas still others maintain that one may sell land to a gentile who already owns land in Israel (Shabbas Ha’aretz, Mavo 12). The original contracts approved by the rabbonei Yerushalayim designed that sale to incorporate many aspects to avoid this concern (Sefer Hashemittah, pg. 75). However, each of these approaches is halachically controversial. In fact, the problem of selling the land to a gentile is so controversial that many poskim consider such a sale invalid because of the principle of ein shaliach lidvar aveirah, that transacting property through agency in a halachically unacceptable manner is invalid (Chazon Ish, Shvi’is 24:4).

Among contemporary poskim there is wide disagreement whether one may eat produce on the basis of heter mechirah. Some contend that one may, whereas others rule that both the produce and the pots used to cook this produce become non-kosher. Others follow a compromise position, accepting that the pots should not be considered non-kosher, although one should carefully avoid eating heter mechirah produce. Because of the halachic controversies involved, none of the major hechsherim in North America approve heter mechirah produce. Someone visiting Eretz Yisroel during shmittah who wants to maintain this standard should clarify his circumstances in advance.

FRUITS VERSUS VEGETABLES

Some rabbonim ruled that the fruits produced under heter mechirah may be treated as kosher, but not the vegetables. The reason for this distinction is as follows:

SEFICHIM

The Torah permitted the use of any produce that grew on its own in a field that was not worked during shmittah. Unfortunately, though, even in the days of Chazal, it was common to find Jews who deceitfully ignored shmittah laws. One practice of unscrupulous farmers was to plant grain or vegetables and market them as produce that grew on its own. To make certain that these farmers did not benefit from their misdeeds, Chazal forbade all grains and vegetables, even those that grew on their own, a prohibition called sefichim, or plants that sprouted.

Several exceptions were made, including that produce of a non-Jew’s field is not prohibited as sefichim. Thus, if the heter mechirah is considered a charade and not a valid sale, the grain and vegetables growing in a heter mechirah field are prohibited as sefichim.

WHY NOT FRUIT?

Chazal did not extend the prohibition of sefichim to fruit, because there was less incentive for a cheating farmer. Although trees definitely thrive when pruned and attended to, they will produce even if left unattended for a year. Thus, the farmer has less incentive to tend his trees.

PERENNIALS

Similarly, perennials that do not require planting every year are not included in the prohibition of sefichin. Although perennials benefit when pruned and cared for, most will produce, even if left unattended for a year, and the farmer has less incentive to violate shmittah by caring for such plants.

Thus, tree fruits, nuts, strawberries and bananas do not involve the prohibition of sefichin. If they grew in a field whose owner was not observing shmittah, they might involve the prohibition of shamur, as explained below.)

“GUARDED PRODUCE”

I mentioned above that a farmer must allow others to help themselves to the produce that grows on his trees and fields during shmittah. What is the halacha if a farmer refused to allow others access to his produce during shmittah?

The rishonim dispute whether this fruit is forbidden. Some contemporary poskim prohibit the use of heter mechirah fruit on the basis that since heter mechirah is invalid, this fruit is now considered shamur, “guarded,” and therefore forbidden. Other poskim permit the fruit, because they rule that working an orchard or treating it as private property does not prohibit its fruit (see Shu’t Igros Moshe, Orach Chayim 1:186).

BACK TO OUR CARROT MUFFINS

What about our carrot muffins? If we remember our original story, the company had unwittingly purchased heter mechirah carrots. The hechsher required the company to return all unopened boxes of carrots to the supplier and to find an alternative source. However, by the time I discovered the problem, muffin mix using these carrots had been produced bearing the hechsher’s kashrus symbol and had already been distributed. The hechsher referred the shaylah to its posek, askingwhether they were required to recall the product from the stores as non-kosher, or whether it was sufficient to advertise that an error occurred and allow the customer to ask his individual rav for halachic guidance.

What would you advise?

Question #1:

Eggplants grow on a woody stem. Does this make the eggplant a tree and prohibit the fruit that grows during its first three years as orlah or not? Although this idea may seem strange to most people, at least one prominent posek held that eggplant is prohibited as orlah.

Question #2:

What is the correct beracha to recite when smelling carnations, lilies, or mint?

Question #3:

What is the correct beracha to recite before eating papaya, cane sugar, or raspberries?

Question #4:

May someone plant tomatoes in his vineyard in Eretz Yisroel?

Although these questions seem completely unrelated, each query revolves around the same issue: What is the halachic definition of a tree?

It is usually easy to identify a tree. We know the obvious characteristics that define oak and apple trees, and it is clear that trees differ from plants that grow in a vegetable patch. However, from a halachic standpoint it is not always obvious whether many of Hashem’s botanical wonders are trees or not.

It is critical to determine what fits the definition of a tree in order to clarify the following halachic issues:

1. What beracha one recites on its fruit.

2. What beracha one recites on its fragrance.

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

4. How severe is the prohibition to destroy it (bal tashchis).

5. There are several agricultural halachos concerning kelayim, shemittah, and maaser, all of which are relevant only in Eretz Yisroel.

Let us clarify these five areas of halacha before we discuss the main focus of our article, in order to understand the ramifications of why we must know which plants are considered trees.

1. What beracha one recites on its fruit.

As the Mishnah teaches, the beracha before eating the fruit of a tree is borei pri ha’eitz, whereas the beracha on fruit that grows from the ground, such as peas, beans, cucumbers, and melons, is borei pri ha’adamah. (The botanical definition of a fruit is the fleshy part [technically, the developed ovary] of the plant that nourishes the developing seed. Many of the foods that we colloquially call “vegetables,” are in reality “fruits of the ground.”) Thus, it is important to ascertain how certain fruits such as bananas, papayas, and berries grow in order to determine whether they grow on what is halachically classified as a tree, in which case their beracha is ha’eitz, or whether the plant upon which they grow is not a tree and the correct beracha is ha’adamah.

2. What beracha one recites on its fragrance.

Chazal established five different berachos on fragrances, one of which is “borei atzei besamim,” “He who created pleasant-smelling wood (or trees),” and another, “borei isvei besamim,” “He who created pleasant-smelling grasses.” Just as one must recite the correct beracha on a food before eating it, so it is important to recite the correct beracha on a fragrance before smelling it. We will see later that whether the closest English translation of atzei besamim is pleasant-smelling wood or pleasant-smelling trees depends on an interesting dispute.

Determining whether the correct beracha is atzei besamim or isvei besamim is even more significant than determining whether the correct beracha is borei pri ha’eitz or borei pri ha’adamah for the following reason: If one recites borei pri ha’adamah on a fruit that should have been borei pri ha’eitz, one fulfills the minimal requirement bedei’eved (after the fact) and should not recite an additional beracha of borei pri ha’eitz. The reason for this is that every tree grows from the ground — thus praising Hashem for “creating the fruit of the ground” when eating a fruit that grew on a tree is not inaccurate. Therefore, someone who is uncertain whether a certain fruit is “of the tree” or “of the ground” should recite borei pri ha’adamah before eating it.

However, when in doubt whether to recite atzei besamim or isvei besamim on a specific fragrance, one may not recite either beracha. This is because trees and grasses are mutually exclusive categories — if something is a grass, it is not a tree and vice versa. Thus, reciting the beracha praising Hashem for creating pleasant-smelling grasses before smelling a tree is a beracha levatalah, a beracha said in vain, because it is inaccurate.

When someone is uncertain whether a plant is considered a tree or a grass, he should recite a third beracha, borei minei besamim, “He who created types of pleasant-smelling items,” even though this is certainly not the optimal beracha on this fragrance. This is equivalent to reciting the beracha of shehakol before eating an apple. One has fulfilled the mitzvah, albeit not in the optimal way, since an apple “deserves” a more specific praise.

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

The Torah prohibits eating fruit that grew within the first three years of a tree’s life. Thus, if a particular plant is a tree, the fruit produced in its first three years is prohibited; if it is not a tree, the fruit may be eaten immediately.

Although orlah is an agricultural mitzvah, it applies outside Eretz Yisroel. However, there is a major difference between orlah on fruits that grow in Eretz Yisroel and those that grow in chutz la’aretz. In chutz la’aretz only fruit that is definitely orlah is prohibited, and one may eat fruit that is questionably orlah. This fact has major halachic ramifications. There is also a mitzvah of re’vai that requires redeeming the fruit of the fourth year. Ashkenazim follow the ruling that in chutz la’aretz the laws of re’vai apply only to grapes (Rema and Gra, Yoreh Deah 294:7), whereas Sefardim require the laws of re’vai on all fruit trees.

4. How severe is the prohibition to destroy it (bal tashchis).

Destroying a fruit-bearing tree without gaining benefit in the process is prohibited min HaTorah. Although one may not destroy anything without purpose, the Rambam rules that destroying a tree is a more serious prohibition (Hilchos Melachim 6:8, 10). Some poskim explain that only destroying a tree is prohibited min HaTorah, whereas destroying other items, including plants, is prohibited only miderabbanan, and therefore would have some leniencies.

5. There are several agricultural halachos concerning kelayim in a vineyard (kil’ei hakerem), shemittah, and maaser, all of which are relevant only in Eretz Yisroel. There are also halachos related to grafting one species onto the stock of another (harkavas ilan), which applies equally in Eretz Yisroel and in Chutz LaAretz.

One may not plant vegetables in a vineyard in Eretz Yisroel because of the prohibition of kil’ei hakerem, mixing species in a vineyard (Rambam, Hilchos Kelayim 5:7), although one may plant trees in a vineyard (Rambam, Hilchos Kelayim 5:6). In addition, if something is categorized as an edible plant, one must be careful not to plant it too close to another edible plant because of kil’ei zera’im, mixing species when planting. This mitzvah does not apply to trees.

OTHER LAWS

How one determines the year in which a plant grows differs between trees and plants. The cut-off point for determining the years of tree fruits is usually determined by Tu Bishvat, whereas for plants it is Rosh Hashanah. This affects the halachos of maaser and of shemittah.

In addition, which year of the maaser cycle a fruit belongs to is determined by whether its chanatah, which refers to a stage early in the fruit’s development, took place before Tu Bishvat or after; for a plant, it is determined by whether it is harvested before Rosh Hashanah. Furthermore, a plant that grew uncultivated during the shemittah year would be prohibited because of the prohibition of “sefichin,” whereas the fruit of a tree would not be affected by this concern.

We now understand why it is important to determine whether a particular plant qualifies as a tree or not.

WHAT IS THE DEFINITION OF A TREE?

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 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 which all 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?

Having demonstrated that the dictionary definition of tree is insufficient for our purposes, let us explore sources that may give us a halachic definition. The Gemara (Berachos 40a) states that one recites borei pri ha’eitz if “when you remove the fruit, the gavza remains and produces more fruit; but if the gavza does not remain, the beracha is not borei pri ha’eitz, but borei pri ha’adamah.” What is the “gavza” that remains to bear more fruit from one year to the next?

Among the major commentaries, we find three interpretations. Rashi translates gavza as branch, meaning that any plant whose branches fall off one year and then grow again the next is not considered a tree, even if the root and trunk (or stem) remain from one year to the next. There are berries whose stem remains from one year to next, but whose branches fall off during the winter (Tehillah Ledavid, Chapter 203). According to Rashi, the correct beracha on these berries is ha’adamah.

A second opinion, that of Tosafos, explains that “gavza” is the trunk or stem of the plant that remains from one year to the next and produces fruit (Ritva, Sukkah 35a). A plant whose root remains from one year to the next, but not its stem, is not a tree.

Many perennial fruits do not have a trunk that remains from year to year. (A perennial is a plant whose root remains from one year to the next and grows each year without replanting.) A banana plant is a perennial whose entire structure above ground dies each year and then grows again the next year from the root. According to Tosafos, bananas are not trees but plants; therefore their beracha is ha’adamah, not ha’eitz, and there is no orlah prohibition.

A third opinion, that of the Rosh and the Tur (Orach Chayim, Chapter 203), explains that any perennial is considered a tree and its beracha is ha’eitz. If the plant must be replanted each year (i.e., it is an annual) to produce fruit, then the beracha is ha’adamah, not ha’eitz. According to this understanding, the correct beracha on strawberries and bananas is ha’eitz since they are both perennials (not annuals), whereas according to the other opinions, the beracha on strawberries and bananas is ha’adamah.

The Shulchan Aruch and the Rema (Orach Chayim 302:2) rule that one recites borei pri ha’eitz if there is some type of stem that remains from year to year and produces fruit, but that the beracha is ha’adamah on perennials whose stem dies each year. However, it is disputed whether the reason we recite ha’adamah is because the Shulchan Aruch concluded like Tosafos, or because it is uncertain whether the beracha should be ha’eitz (like the Rosh and the Tur), or ha’adamah (like Tosafos), and we recite ha’adamah because of this uncertainty (Maamar Mordechai 203:3). There are several halachic ramifications that result from this question as I will explain later.

IS A TREE ALWAYS A TREE?

Is the definition of a tree the same for the halachos of orlah and kelayim as it is for berachos?

Tosafos (Berachos 40a) cites a passage in Talmud Yerushalmi (Kelayim 5:7) that something may not qualify for the definition of a tree for the laws of berachos and yet be considered a tree for the laws of kelayim, whereas the Ritva (Sukkah 35a) contends that the definition of the Gemara (Berachos 40a) for berachos applies to orlah as well. Tosafos concludes that the beracha on most perennial berries is ha’adamah because the bush does not remain from year to year, even though the bushes have the status of trees concerning kelayim and therefore may be planted in a vineyard.

IS HEIGHT A FACTOR?

Are there any other factors that define a tree other than what the Gemara mentioned? Must a plant grow tall to be considered a tree?

The Magen Avraham (203:1) rules that even if a tree grows very short, the correct beracha on its fruits and berries is borei pri ha’eitz. However, the prevalent minhag is to make a pri ha’adamah on berries that grow on plants which are less than three tefachim tall (about nine or ten inches), even though they meet all the other requirements of trees. The reason for the minhag is that a plant with such short stature is not considered significant enough to be a tree (Chayei Odom 51:9; Mishnah Berurah 203:3).

However, we should note that although the custom is to recite ha’adamah on the fruit of these small perennial bushes, the fruit grown in the first three years of the tree’s life is nonetheless prohibited because of orlah (Ritva, Sukkah 35a). Cranberries would fit into this category since they are perennial, yet grow on the ground of a bog. Thus, orlah applies to them, yet their beracha is borei pri ha’adamah.

We have now covered most of our opening questions, and plan to continue this discussion in a future article.

Man himself is compared to a tree (see Rashi, Bamidbar 13:20); and his responsibility to observe orlah, terumos, and maasros are intimately bound with the count that depends on Tu Bishvat. As Rav 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.

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

Question #1: Chopping Down the Cherry Tree

“A year ago, I transplanted a cherry tree in order to sell the wood, which is widely used by artists for delicate artistic carving. I see that many cherries have grown on the tree. Are they prohibited as orlah?”

Question #2: Sabra Borders

“Someone planted a sabra tree (also known as a “prickly pear,” “cactus pear” or “Indian fig”) as a natural border fence for his property, and placed a sign telling people not to help themselves to the fruit. Is there an orlah prohibition on the fruit?”

Question #3: Woody Fuel

“I live in a rural area without electricity. We run a nature resort and chop wood for heating and cooking. If I plant trees for wood, do I need to keep track of which year I plant the tree, due to orlah concerns?”

Of the many agricultural mitzvos, one of the most fascinating ones we have is orlah. Orlah roughly means that during the first three years of a tree’s growth, any fruit that grows on it cannot be eaten or benefited from. The mitzvah is unique in many ways and its laws contain some very interesting rules and applications.

One of the insights that this mitzvah provides is that it shows that the Torah requires us not to limit ourselves to the studies of religion and philosophy, or even of just Tanach and Gemara.  It is impossible to put the laws of orlah into application without an extensive scientific knowledge. An incredible number of botanical details must be understood in the practical application of this mitzvah, and observing orlah properly requires investigating these details.

As a child, I was told that orlah is a very rare mitzvah, since there are no trees that produce fruit in their first three years. Notwithstanding that the Ramban (ad locum) implies this, one cannot rely on this halachically for two reasons:

Firstly, many trees and, in particular, bushes produce fruit and berries in their first three years.

Secondly, it is possible to have orlah on trees that are older than three years.

Let us begin with this topic by examining the pesukim in which this mitzvah is presented:

“Vechi savo’u el ha’aretz, u’netatem kol eitz ma’achal va’araltem orlaso es piryo, shalosh shanim yihyeh lachem arei’lim, loyei’acheil.” “And when you come to the land and you plant any fruit tree, you shall treat yourselves as restricted against the fruits; for three years they shall be restricted to you, you shall not eat them” (Vayikra 19:23).

Let us now dissect this pasuk:

“Vechi savo’u el ha’aretz,” “And when you come to the land.” What land is the pasuk talking about? We can safely assume for now that it is Eretz Yisrael.

“Kol eitz ma’achal.” Since the pasuk later references “piryo,” “its fruit,” we know that the tree bears fruit. What, then, is the pasuk telling us by referring to the tree as “eitz ma’achal”?

It is telling us that the mitzvah applies only when a tree is planted for the purpose of consuming its fruit.

Allow me to explain. Here are three examples of trees that are not planted for fruit:

A. A tree planted for lumber.

B. A tree planted as a boundary marker.

C. A tree planted to produce firewood.

Regarding trees on the above list, the Mishnah (Orlah 1:1) teaches that fruits that grow during the first three years of the life of the tree are permitted. However, there is a caveat to this heter: It must be clear that the tree was not planted for its fruit.

Here is an example:

Trimming the side branches of a tree demonstrates that the tree was not planted for its fruit. When you plant a tree for fruit, the side branches are beneficial. After all, the more branches there are, the more fruit usually grow. In addition, the lower branches are easier to reach, facilitating harvesting.

Trimming the side branches, however, assures that the tree grows straight and tall, yielding taller lumber. Therefore, trimming the side branches proves that your purpose is not for the fruit.

Similarly, if trees are planted close together, that proves that they are not intended for their fruit, since spacing is important for optimal fruit growth.

Chopping down the cherry tree

“A year ago, I transplanted a cherry tree in order to sell the wood, which is widely used by artists for delicate artistic carving. I see that many cherries have grown on the tree. Are they prohibited as orlah?”

The answer is that if you cultivated the tree in a way that it is obvious that you were interested in the wood and not the fruit, even what grew in the first three years is permitted. Also see below that there might be another reason why the cherries are permitted.

Sabra borders

At this point, we can also discuss the second of our opening questions: “Someone planted a sabra tree (also known as a “prickly pear,” “cactus pear” or “Indian fig”) as a natural border fence for his property, and placed a sign telling people not to help themselves to the fruit. Is there an orlah prohibition on the fruit?”

Had the owner planted the tree only as a border, it would not be eitz ma’achal, and the fruit that grew during the first three years would be permitted. However, this is dependent on the intentions of the planter. In this instance, since the owner put up a sign telling people not to take the fruit, he is clearly interested in the fruit crop. Therefore, the fruit is prohibited.

Another exception in which the fruit is prohibited:

Even if a tree is exempt from orlah restrictions due to any of the above situations, if the owner changes his mind and begins to use the tree as a fruit tree, whatever fruit grow during the remainder of the initial three-year period subsequent to this change are prohibited as orlah.

Woody

We can also answer the third of our opening questions: “I live in a rural area without electricity. We run a nature resort and chop wood for heating and cooking. If I plant trees for wood, do I need to keep track of which year I plant the tree, due to orlah concerns?”

There are no orlah concerns if the way the tree is grown or cared for demonstrates that it is being grown only for firewood.

Continuing our analysis of the pasuk: “va’araltem orlaso es piryo.” “You shall treat yourselves as restricted against the fruits.”

Fruits only
Only the fruits of the orlah tree are forbidden. The branches and non-fruit parts of the tree are permitted. However, the entire fruit, including shells, skins, and seeds, is forbidden. Furthermore, even inedible fruit that grow from an edible fruit tree is forbidden. For example, grapes which have not or will not develop are prohibited as orlah.

Benefit
In addition to being forbidden to eat orlah fruits, we are also forbidden to derive benefit, hana’ah, from them.

How does this manifest itself in practice?

It is prohibited to make a dye from the skins or shells of orlah fruits. We may not use the seeds of an orlah fruit for coloring, nor may we use them for fertilizer or animal food. Furthermore, even more indirect methods of benefit are prohibited. Allow me to elaborate:

Let us say that I own a tree whose fruit is orlah. I am not allowed to eat its fruits, but there is no such restriction on my non-Jewish neighbor. Orlah is not one of the mitzvos that a ben noach, a non-Jewish Noahide, is required to observe. However, since the fruits are assur behana’ah, prohibited for benefit, I am not allowed to give the fruits to him, nor am I allowed to tell him to help himself. This is because when I give him a gift, I will likely make him feel indebted to me. He might be motivated to give me something in return, and that would be a benefit derived from the orlah fruit.

What, therefore, should I do with these fruits? Should I just leave them on the tree?

Rav Shlomo Zalman Auerbach paskened that to leave orlah fruits on the tree would create a stumbling block. Passersby might not realize that the fruits are forbidden, and they might eat them. His psak was to take the fruit off the tree and dispose of them in the halachically prescribed method, i.e., by burning them.

Chutz La’aretz
As we said earlier, the pasuk says “Vechi savo’u el ha’aretz,” “When you come into the land,” which we take to mean Eretz Yisrael. Why then is orlah not an agricultural mitzvah that applies only in Eretz Yisrael?

The Gemara (Kiddushin 39a) teaches that orlah in chutz la’aretz has a unique status. It is a halacha leMoshe miSinai, a halacha that we have an oral tradition dating back to Moshe Rabbeinu, and one for which we do not have a textual source in the Torah. This halacha, of orlah in chutz le’aretz, comes with an unusual leniency regarding questionable orlah, as follows:

In Eretz Yisrael, before buying a fruit, one is obligated to research and determine whether or not the fruit is orlah. When in doubt, the fruit must be treated as orlah and prohibited.In chutz la’aretz, on the other hand, one is not obligated to conduct any research. The fruit will only be forbidden if it is definitely orlah.

What is a tree?
How do we define a tree for the purposes of orlah?
While the poskim debate if the qualifications for orlah are the same as those for hilchos berachos, the qualifications for hilchos berachos give us a good starting point. The Gemara (Berachos 40a) defines a tree for the purpose of making borei peri ha’eitz as one that does not lose its trunk from year to year. According to this, if a tree trunk degenerates every year, or if it requires replanting every year, it is not halachically a tree.

However, the achronim give us further qualifications for consideration of a tree’s halachic status. For a discussion of these qualifications, I refer the reader to the articles on the website RabbiKaganoff.com, under the search words “tree” or “orlah.”

Three years

How do we calculate the three years for orlah?

Orlah is calculated in a very interesting way. If a tree is planted before the 15^th of Av, its fruits that appear after the third Tu Bishvat are permitted. If the tree is planted after the 15^th of Av, then only the fruits that appear after the fourth Tu Bishvat will be permitted. Thus, a tree planted before the 15^th of Av, will produce permitted fruits a year earlier than a tree planted on or after the 15^th of Av.

With most fruit, we calculate this based on the fruit’s first appearance. With some species however, such as olives, grapes, and carobs, this is calculated based on a specific stage of the fruit’s growth. Details of these halachos are beyond the scope of this article.

Up until now, we have discussed orlah as applying only during the first three years of a tree’s life. However, as mentioned previously in this article, it is possible to have a tree that is even older than three years and still subject to orlah.

How can this be?

The Mishnah in Orlah (1:3) teaches us that if a tree is uprooted and replanted, its orlah count sometimes starts afresh.

When the uprooted tree is uprooted along with enough soil for it to survive, the orlah count continues as it was; i.e., if the tree was past its three years, its fruit is permitted.

If, on the other hand, the tree is uprooted without enough soil for it to survive, it is viewed as if it was planted anew, and the orlah count starts from scratch.

What, then, constitutes enough soil for the tree to survive?

This is a machlokes rishonim, with some opinions defining that it means that the tree can survive for fourteen days, and other opinions requiring it to survive all the way to three years. In chutz le’aretz, since we are lenient with all orlah questions, we will rely on the opinions that require only fourteen days; in Eretz Yisrael, many poskim say that we must follow the stricter opinions.

Conclusion

In addition to the three years in which orlah is forbidden, the Torah rules that the fruit of the fourth year of a tree is holy, with the same laws as maaser sheini, that they. Both the fourth-year product, called reva’i, and maaser sheini should be eaten within the walls of Yerushalayim, and may be eaten only when we are tehorim; otherwise, the sanctity of the fruits must be redeemed, a topic I discussed in a different article.As the Torah states: “And when you come into the land and you plant any fruit tree, you shall treat yourselves as restricted against the fruits; for three years they shall be restricted to you, you shall not eat them. And in the fourth year, all its fruit shall be holy for praises to Hashem. Only in the fifth year may you eat its fruit – therefore, it will increase its produce for you, for I am Hashem your G-d (Vayikra 19:23-25). We see that Hashem, Himself, promises that He will reward those who observe the laws of the first four years with abundant increase in the tree’s produce in future years. May we soon see the day when we can bring our reva’i and eat it b’taharah within the rebuilt walls of Yerushalayim!