Category: Noahide Laws

May a Non-Jew Own a Nectarine Tree?

Photo by Philipp Pilz from FreeImages

For that matter, may a Jew?

I once received the following query:

“I am not Jewish, but I observe the laws of Noahides as recorded in the writings of Maimonides, which I have read in the Yale University translation. I am aware that a gentile may not graft one species of tree onto another. Does owning a nectarine tree violate this prohibition? I would be greatly appreciative if you could answer this question, since I have just purchased a house with a nectarine tree in the yard.

Sincerely,

Jacqueline Baker

250 Washington Blvd.

Asheville, NC” (name and address have been changed)

Many of us reading the title of this article may have wondered, “If I am permitted to eat nectarines, why shouldn’t I own a nectarine tree?” Although the answer to this question is fairly straightforward, there are many other issues that need clarification, before we can answer Jacqueline’s shaylah.

First, let us explain the halachos of tree-grafting applicable to Jews. Sadly, because many Jews are unfamiliar with these halachos and unaware of the prevalence of grafted trees, they often, unwittingly, violate these laws.

Also, most people misunderstand the prohibition against kelayim, which is often translated as “mixed species.” People often understand this to mean a prohibition against hybridization or cross-breeding. Although it is true that the Torah prohibits crossbreeding different species of animal, virtually all other types of forbidden mixtures have nothing at all to do with hybridization. We list here the six types of prohibited mixtures, called kelayim.

1. Wearing shatnez, which is a mix of wool and linen.

2. Cross-breeding two animal species.

3. Using two animal species to haul or work together. This mitzvah is usually called lo sacharosh, do not plow with an ox and a donkey together.

4. Grafting different tree species. A sub-category of this prohibition is planting one species on top of or inside another species, a process that is virtually non-existent in contemporary agricultural practice.

5. Planting other crop species in a vineyard. For this purpose, “crop” refers to an annual (grows for only one year and then dies) edible plant. Examples are: seeds that are eaten, like beans, wheat, and sesame; root vegetables, like radish; leaves, such as lettuce; or fruit, such as tomatoes or melons.

6. Planting two crop species together or near one another. This prohibition applies only to species that are eaten.

Although we usually assume that the word kelayim means “mixture,” some commentaries explain that this word originates from the same Hebrew root as the word “prison,” beis ke’le. Thus, Rav Hirsch (Vayikra 19:19) explains that the root word כלא means to keep or hold something back, and that the plural form kelayim is similar to yadayim or raglayim and means a pair. Therefore, the word kelayim means to pair together two items that should be kept apart.

In order to explain the prohibition against grafting trees, the subject of our article, I will first provide some scientific background for city dwellers like myself, who know almost nothing about gardening and horticulture. Having been a city slicker almost my whole life, I freely admit that I knew little about this subject until I did some research in order to understand the halacha.

Hybridization (cross-breeding) of plants occurs when one pollinates the flower of one species with pollen from a different species. However, most of the prohibitions of kelayim have nothing to do with cross-breeding species. In the case of “herbaceous plants,” that is, plants other than perennial (live for many years) trees and shrubs, kelayim is a prohibition against planting two crop species close together. Halacha prohibits planting a crop species inside a vineyard, planting one species too close to another already planted species (distances vary according to how many plants are growing together), planting one species on top of or inside another species, and sowing the seeds of two species together. Incidentally, these prohibitions apply only in Eretz Yisrael, with the exception of planting a crop species in a vineyard (Kiddushin 39a) and, possibly, of planting one species inside another (see Gemara and Tosafos, Chullin 60a; Rambam, Hilchos  Kelayim 1:5 and Radbaz). Thus, someone in chutz la’aretz may plant his backyard garden with a wide variety of vegetables and other edibles without any halachic concern, whereas in Eretz Yisrael, someone planting a garden patch must be very careful to keep the different species separate. The complicated question of how far apart to plant them, and what qualifies as a valid separation if one plants them close together, is beyond the scope of this article (see Chazon Ish, Hilchos Kelayim 6:1).

(By the way, the halachic definition of a species often differs from scientific definition. For example, although some scientists consider wolves and dogs to be the same species, halacha does not; therefore, one may not crossbreed them or use them to haul a load together [Mishnah, Kelayim 1:6]. On the other hand, the Chazon Ish [3:7] discusses whether all citrus fruits are the same species regarding the laws of kelayim, which would permit grafting a grapefruit branch onto a lemon rootstock, whereas scientists consider them to be two distinct species.)

HARKAVAS ILAN – CROSS-GRAFTING

The laws of kelayim also prohibit grafting a branch of one species of tree onto the root 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 modern peach and nectarine trees are produced by grafting a peach or nectarine branch onto the stock of a hardier, botanically-related tree, such as an almond. As I will explain, someone who performs this, either in Eretz Yisrael or in chutz la’aretz, violates a Torah prohibition. According to many authorities, a non-Jew is also commanded regarding this mitzvah. This latter opinion contends that a Jew who causes a non-Jew to graft such a tree, or even to prune or water it after grafting was done, contravenes lifnei iveir, causing someone else to violate a prohibition.

Because so many trees are grafted nowadays, someone who owns a peach tree should have a horticultural expert check whether its rootstock is also a peach tree, or whether it is of a different species. If the stock is peach, even of a different variety, he may keep the tree; if the stock is of a different species, he should chop off the tree below the point of the graft. (Nobody has suggested that George Washington chopped down his father’s cherry tree because it was grafted onto a different species. Since George always strove for truth, however, this was, nonetheless, an additional good deed, at least according to some opinions.) As we will see shortly, there is no violation of bal tashchis in cutting down a grafted tree.

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 very different from the upper part of the tree, this indicates that the upper part of the tree was grafted, possibly onto a different species. Before purchasing a new tree at a nursery, examine the trunk carefully for signs of grafting. If, indeed, this tree is the product of a graft onto a different species, then watering or pruning it violates a Torah law, as I will explain. Furthermore, one may not use a sprinkler to irrigate the rest of the lawn on which the tree stands, if this tree will benefit.

NECTARINE TREES

Nectarine trees are susceptible to a host of plant diseases, and, as a result, are usually grafted onto the stock of peach, plum, almond or other trees. It is unclear whether peach and nectarine are halachically considered the same species, but the other species are not the same, according to halacha. Therefore, watering a nectarine tree grafted onto a different species stock probably violates halacha.

By the way, according to halacha, one may plant or maintain different species of trees in close proximity, presumably because grown trees do not look mixed together but stand distinct.

DOES THE PROHIBITION AGAINST GRAFTING APPLY IN CHUTZ LA’ARETZ?

Although most agricultural mitzvos (mitzvos hateluyos ba’aretz), such as terumah, maaser, and shmittah apply only in Eretz Yisrael, some of these mitzvos apply also in chutz la’aretz, such as the mitzvah of orlah, which prohibits using fruit that grows on a tree before it is three years old.

Although the laws of orlah differ when the tree grows in chutz la’aretz, the fruit produced before the tree is three years old is nevertheless prohibited.

Where does kelayim fit into this picture? Of course, some kelayim prohibitions, such as shatnez, cross-breeding animals and lo sacharosh are not agricultural and, therefore, apply equally in Eretz Yisrael and in chutz la’aretz. Among the agricultural prohibitions of kelayim, some apply in chutz la’aretz also, whereas others apply only in Eretz Yisrael.

Planting vegetables and other edible crops together applies only in Eretz Yisrael, grafting trees applies equally in chutz la’aretz and in Eretz Yisrael min hatorah, while planting in a vineyard applies in chutz la’aretz, but only miderabbanan (Kiddushin 39a).

MAY I OWN KELAYIM?

The Gemara (Moed Katan 2b) cites a dispute whether maintaining kelayim in a vineyard (in Eretz Yisrael) is prohibited min hatorah. Rabbi Akiva contends that building a fence to assist the growth of the two different species together violates a Torah law, whereas the Sages contend that it does not (Rashi to Avodah Zarah 64a).

Most poskim conclude that one may not own kelayim in a vineyard, but must remove the plant that is causing kelayim (Shulchan Aruch Yoreh Deah 297:2). The Rambam (Hilchos  Kelayim 1:2) paskins that owning kelayim is prohibited only miderabbanan, whereas the Rosh (Hilchos  Kelayim #3) prohibits this min hatorah. (We should note that Shu’t Chasam Sofer [Yoreh Deah #282] contends that Tosafos [to Avodah Zarah 64a s.v. Rabbi Akiva] permits owning kelayim.)

WHAT ABOUT OWNING A GRAFTED TREE?

Most poskim assume that one may not own a kelayim tree, just as one may not own kelayim in a vineyard. Furthermore, they contend that this halacha applies, whether the tree is in Eretz Yisrael or in chutz la’aretz (Rosh, Hilchos  Kelayim Chapters 1& 3; Pischei Teshuvah, Yoreh Deah 295:2, quoting many poskim).

However, in times past, many observant Jews purchased agricultural properties that contained kelayim trees, and they did not cut down those trees. Was there any justification for their actions? Many halachic responsa discuss what was, apparently, a widespread practice in the eighteenth and nineteenth centuries. Whereas most poskim rule that these Jews violated the halacha, some authorities justify the practice of owning grafted trees, at least in chutz la’aretz (Shu’t Chasam Sofer, Yoreh Deah #288; cf. Aruch Hashulchan, Yoreh Deah 295:17-18). Even these opinions agree that it is preferred to follow the stricter approach and cut down the grafted part of the tree.

I THOUGHT THAT ONE MAY NOT CUT DOWN A FRUIT-BEARING TREE?

Although it is usually prohibited to chop down a tree that bears enough fruit to be profitable, this prohibition does not exist when owning the tree involves a prohibition. Furthermore, bal tashchis, generally, does not exist when one is trying to enhance one’s observance of mitzvos.

Nevertheless, it is preferred to have a non-Jew chop down the tree, since he has no mitzvah of bal tashchis.

DOES THE MITZVAH OF KELAYIM APPLY TO NON-JEWS?

In general, a non-Jew is required to observe only seven mitzvos. However, there are many opinions that require non-Jews to observe certain other mitzvos. The Gemara (Sanhedrin 56b) quotes a dispute concerning whether a non-Jew must observe certain of the kelayim mitzvos. According to the Sages, no aspect of the prohibition of kelayim applies to bnei Noach, whereas Rabbi Elazar contends that they are included in some of the kelayim prohibitions, but not others. Specifically, they are prohibited from mating different animal species and from grafting one species of fruit tree onto another, but they may plant different species together or in a vineyard, and they may wear shatnez.

Why are they included in some prohibitions but not others?

Describing the creation of plants, the Torah says: “And G-d said, ‘The earth shall sprout forth vegetation, herbage that produces seed; edible trees that produce fruit of their own species…’ And the earth produced vegetation, herbage that produces seed of its own species and trees that bear seed-bearing fruit of their own species” (Bereishis 1:11-12).

Reading the pasuk carefully, we see that Hashem ordered only the trees, and not the herbaceous plants, to “produce fruit of their own species.”

Even though the herbage did, in the end, produce “seed of its own species,” this was not because it was commanded. The Gemara derives from other sources that, just as the earth was commanded to keep tree species distinct, so, too, Adam harishon and all his descendants were commanded to keep these species distinct. But since the herbaceous world was never commanded to keep its species distinct, Adam was not commanded concerning this halacha. Therefore, although Jews may not plant different species together, bnei Noach may (Yerushalmi Kelayim 1:7, quoted by Gra, Yoreh Deah 295:2).

WHICH OPINION DO WE FOLLOW?

Do we rule like the Sages that a non-Jew is not included in the prohibition of harkavas ilan, or like Rabbi Elazar, that he is? The Rambam (Hilchos Melachim 10:6) rules like Rabbi Elazar, that a non-Jew may not graft one species of tree onto another, whereas the Ritva (Kiddushin 39a s.v. amar Rabbi Yochanan) and the Shach (Yoreh Deah 297:3) are lenient.

Although we usually follow the Rambam’s opinion, some poskim suggest that we might be able to rule leniently, if only a rabbinic prohibition is involved, such as where the grafted tree exists already and one is not watering or pruning it (Chazon Ish, Kelayim 1:1).

MS. BAKER’S SHAYLAH

I mentioned earlier that a Jew who prunes or waters a kelayim tree violates the Torah prohibition, whether in Eretz Yisrael or in chutz la’aretz. According to most authorities, one may not even own this tree, and one is required to cut down the grafted part. However, since this last prohibition is only miderabbanan, according to most poskim, non-Jews may allow a grafted tree to survive and may even build a fence around it, since they are not required to observe rabbinic prohibitions. (Compare, however, Shu’t Mahari Asad, Yoreh Deah #350 and Shu’t Maharsham 1:179.) Ms. Baker may not water or prune a grafted tree, because that is halachically equivalent to planting it, which is prohibited according to most opinions. In my opinion, she may also not operate her sprinkler system to irrigate her lawn, if the kelayim tree will benefit as a result.

May Ms. Baker ask another non-Jew to water her tree? The poskim dispute whether a non-Jew may ask or hire someone else to violate a mitzvah. Most contend that this is permissible, because the mitzvah of lifnei iveir, causing someone else to violate a mitzvah, does not apply to non-Jews (Tosafos, Avodah Zarah 16b s.v. lenachri). Other authorities (Ginas Veradim, Klal 43) prohibit this, basing themselves on earlier sources that prohibit a ben Noach from violating a transgression that logic tells us to avoid (Rabbeinu Nissim, Introduction to Shas).

MAY WE EAT THE FRUITS OF A GRAFTED TREE?

One may eat the fruits of a grafted tree (Rambam, Hilchos  Kelayim 1:7, based on Yerushalmi). One may even take the shoot of a grafted tree and plant it, after it has been severed from the original tree.

SEPARATION OF SPECIES

In all six types of kelayim mentioned above, the general criterion is to avoid the appearance of different species being intermingled.

Concerning this, Rav Hirsch (Vayikra 19:19) writes, “The Great Lawgiver of the world separates the countless numbers of His creations in all their manifold diversity, and assigns to each one of them a separate purpose and a separate form for its purpose.”

In addition, observing the laws of kelayim helps us remember how various species obeyed Hashem’s instructions to remain separate during their creation (the source for some halachos of kelayim, as we saw above). This reminds the contemplative Jew that if the plants heeded Hashem’s word during the Creation, how much more are we obligated to obey all His instructions.

The author thanks Dr. Joshua Klein of the Volcani Institute and Rabbi Shmuel Silinsky for their tremendous assistance in providing horticultural information for this article.

Meet the Adams Family

The Man

Today, I will be meeting someone who is extremely concerned and knowledgeable about halacha, yet doesn’t even keep a kosher home. Neither has he ever observed Shabbos. On the other hand, he is meticulous to observe every detail of Choshen Mishpat.

Who is this individual?

Allow me to introduce you to John Adams, who is a practicing Noahide, or, as he prefers to call himself, an Adamite.

Adams asserts that he descends from the two famous presidents, a claim that I have never verified and have no reason to question. Raised in New England and a graduate of Harvard Law School, John rejected the tenets of the major Westernreligions, but retained a very strong sense of G-d’s presence and the difference betweenright and wrong. Study and introspection led him to believe that G-d probably had detailed instructions for mankind, and sincere questioning led him to discover that, of the Western religions, only Judaism does not claim a monopoly on heaven. A non-Jew who observes the Seven Laws taught to Noah and believes that G-d commanded them at Har Sinai has an excellent place reserved for him in Olam Haba.

And so, John began the practice of these laws.John is quick to point out that, with only one exception, these laws were all commanded originally to Adam. Since John is proud of his family name and lineage, he likes calling himself an Adamite.

What are the basics of Noahide practice?

A gentile is required to observe seven mitzvos, six of them prohibitions: idolatry, incest, murder, blasphemy, theft, and eiver min hachai (which we will soon discuss).  The seventh mitzvah is to have dinim, the nature of which is controversial.The Sefer Hachinuch (Mitzvah #416) and others note that these seven mitzvos are really seven categories, and a non-Jew is really required to observe several dozen mitzvos.

Kosher, Noah style

I asked John if eating meat presents any religious problems for him.

“Well, you know that Noah was prohibited from eating meat or an organ that was severed before the animal died, a prohibition you call eiver min hachai,” said John, obviously proud that he could pronounce the expression correctly.“So, sometimes I come across meat that I may not eat. The following question once came up: Moslem slaughter, called halal, involves killing the animal in a way that many of its internal organs are technically severed from the animal before it is dead. Because of this, we are very careful where we purchase our organ meats.”

May a Noahide Eat Out?

“This problem went even further,” John continued. “Could we eat in a restaurant whereforbidden meats may have contaminated their equipment?”

I admit that I had never thought of this question before. Must a gentile be concerned that a restaurant’s equipment absorbed eiver min hachai? Does a Noahide need to “kasher” a treif restaurant before he can eat there? Shver tzu zein a goy! Oy, the difficulty of beinga goy!

“How did you resolve this dilemma?” I asked curiously.

“Well, for a short time our family stopped eating out,” he replied. “You could say that we ate treif only at home. My wife found the situation intolerable – no MacDonald’s or Wendy’s? Although I know that observant Jews do not understand why this is such a serious predicament, bear in mind that we made a conscious decision not to become Jewish. One of our reasons was that we enjoy eating out wherever we can.

“So, I decided to ask some rabbis I know, but, even then, the end of the road was not clearly in sight.”

“Why was that?”

“I had difficulty finding a rabbi who could answer the question. From what I understand, a rabbi’s ordination teaches him the basics necessary to answer questions that apply to kosher kitchens. But I don’t have a kosher house – we observe Adamite laws. As one rabbi told me, ‘I don’t know if Noahides need to be concerned about what was previously cooked in their pots.’”

“How did you resolve the predicament?”

How treif is treif?

“Eventually, we found a rabbi who contended that we need not be concerned about how pots and grills were previously used. He explained that we could assume that they had not been used for eiver min hachai in the past 24 hours, which certainly sounds like a viable assumption, and that, therefore, using them would only involve the possibility of a rabbinic prohibition, which we gentiles are not required to observe. The last part makes a lot of sense, since there is nothing in the Seven Laws about listening to the rabbis, although I agree that they are smart and sincere people. [Note: I am not certain who it was that John asked. According to Shu”t Chasam Sofer, Yoreh Deah #19 (at end), there is no heter for a non-Jew to use pots that once absorbed eiver min hachai. There are poskim who disagree with the Chasam Sofer (see Darchei Teshuvah 62:5), many of these holding that there is no prohibition altogether with a gentile using pots that had absorbed the taste of eiver min hachai.]

“The result is that we now go out to eat frequently, which makes my wife very happy. It was a good decision for our marital bliss, what you call shalom bayis. Although I understand that this is another idea we are not required to observe, it is good, common sense.”

Milah in the Adams Family

When John’s son was born, he raised an interesting shaylah. To quote him: “Circumcision as a religious practice originates with G-d’s covenant with Abraham, the first Jew. But my covenant with G-d predates Abraham and does not include circumcision. However, even though there was no religious reason for my son to be circumcised, my wife and I thought it was a good idea for health reasons. On the other hand, I know that many authorities forbid a gentile, which I technically am, from observing any commandments that he is not specifically commanded (see Rambam, Hilchos Melachim 10:9).”

John is a very gregarious type, and loves to explain things fully. “We actually had another concern about whether we could circ John Jr. The second one was that many authorities contend that the seventh mitzvah of establishing ‘Laws,’ which you call ‘Dinim,’ includes a prohibition against injuring someone (Ramban, Genesis, oops, I mean Bereishis, 34:13). According to this opinion, a non-Jew who strikes someone during a street protest may lose his world to come for violating one of the seven laws. I have come too far to risk losing my share in the world to come, so I try very hard not to violate any of the laws. I called some rabbi I know to ask whether there was any problem with circumcising my son for health reasons. The rabbis I asked felt that since we are doing this for medical reasons, it issimilar to donating blood or undergoing surgery, both of which are permitted. The upshot was that we did what no self-respecting Jew should ever do: We had a pediatrician circumcise John Jr. on the third day after his birth, to emphasize that we were not performing any mitzvah.”

No Bris

Proud to show off his Hebrew, John finished by saying: “So we had a milah, but no bris. We also decided to skip the bagels and lox. Instead, my wife and I thought it was more appropriate to celebrate with shrimp cocktails, even though primordial Adam didn’t eat shrimp. All types of meat were permitted to Noah only after the Deluge, which you call the mabul. I believe that some authorities rule that Adam was permitted road-kill and was only prohibited from slaughtering, while others understand he had to be strictly vegetarian. My wife and I discussed whether to go vegetarian and keep up the Adams tradition, but decided that if meat was ‘kosher’ enough for Noah, it is kosher enough for us. We decided we weren’t keeping any stringent practices,even if they become stylish.”

Earning a Living

“Have you experienced any other serious dilemmas due to your being an ‘Adamite’?”

“Oh, yes. I almost had to change my career.”

I found this very curious. As John Adams seemed like an honest individual, it was unlikely that he had made his living by stealing or any similar dishonest activity.

Non-Jews are forbidden to perform abortions, which might affect how a Noahide gynecologist earns a living, but John is a lawyer, not a doctor. Even if John used to worship idols or had the bad habit of blaspheming, how would that affect his career?

May a Gentile Practice Law?

John’s research into Noahide law led him to the very interesting conclusion that his job as an assistant district attorney was halachically problematic. Here is what led him to this conclusion.

One of the mitzvos, or probably more accurately, categories of mitzvos,in which a Noahide is commanded is the mitzvah of dinim, literally, laws. The authorities dispute the exact definition and nature of this mitzvah. It definitely includes a requirement that gentile societies establish courts and prosecute those who violate the Noahide laws (Tosefta, Avodah Zarah 9:4; Rambam, Hilchos Melachim 9:14). Some authorities contend that the mitzvah of dinim prohibits injuring or abusing others or damaging their property (Ramban, Breishis 34:13).

However, this dispute leads to another issue that was more germane to John’s case. The halachic authorities dispute whether Noahides are governed by the Torah’s rules of property laws, which we refer to as Choshen Mishpat (Shu”t Rama #10), or whether the Torah left it to non-Jews to formulate their own property and other civil laws. If the former is true, a non-Jew may not sue in a civil court that uses any system of law other than the Torah. Instead, he must litigate in a beis din or in a court of non-Jewish judges who follow halachic guidelines. Following this approach, if a gentile accepts money based on civil litigation, he is considered as stealing, just as a Jew is. This approach is accepted by many early poskim (e.g., Tumim 110:3). Some authorities extend this mitzvah further, contending that the mitzvos governing proper functioning of courts and civil laws apply to Noahides (Minchas Chinuch #414; 415).According to this view, enforcing a criminal code that does not follow the Torah rules violates the mitzvah of dinim.

As John discovered, some authorities extend this idea quite far. For example, one of the mitzvos of the Torah prohibits a beis din from convicting or punishing on the basis of circumstantial evidence (Rambam, Sefer Hamitzvos, Lo Saaseh #290; Sefer Hachinuch #82). If the same rule applies to the laws of dinim, a gentile court is prohibited from using circumstantial evidence in litigation (Minchas Chinuch #82, #409). Thus, John was faced with a predicament. According to these opinions, a gentile who prosecutes on the basis of circumstantial evidence may be violating the mitzvos of Noah, even if the accused party appears to be guilty. It is understood that, according to these opinions, one may not prosecute for the violation of a crime that the Torah does not consider to be criminal, or to sue for damages for a claim that has no halachic basis.

Napoleonic Code and Halacha

On the other hand, other authorities contend that non-Jews are not obligated to observe the laws of Choshen Mishpat; rather, the Torah requires them to create their own legal rules and procedures (Ha’eimek She’eilah, 2:3; Chazon Ish, Bava Kamma 10:1). These authorities rule that gentiles perform a mitzvah when creating a legal system for themselves such as the Napoleonic Code, English Common Law, or any other commercial code. Following this approach, a non-Jew may use secular courts to resolve his litigation and even fulfills a mitzvah by doing so. Thus, John could certainly continue his work as a D.A., and it would be a mitzvah for him to do so.

It is interesting to note that following the stricter ruling in this case also creates a leniency. According to those who rule that a gentile is not required to observe the laws of Choshen Mishpat, a gentile may not study these laws, since the Torah prohibits a gentile from studying Torah (see Tosafos, Bava Kamma 38a s.v. karu; cf., however, the Meiri, Sanhedrin 59a, who rules that a gentile who decides to observe a certain mitzvah may study the laws of that mitzvah in order to fulfill it correctly.)On the other hand, according to those who contend that the mitzvos of dinim follow the laws of Choshen Mishpat, a gentile is required to study these laws in order to observe his mitzvos properly (Shu”t Rama #10)).

John’s Dilemma

The rabbis with whom John consulted felt that a gentile could work as a district attorney. However, John had difficulty with this approach. He found it hard to imagine that G-d would allow man to decide the law for himself, and felt it more likely that mankind was expected to observe the Torah’s civil code. He therefore gravitated to the opinion of those who held that gentiles are required to observe the laws of Choshen Mishpat. As a result, he felt that he should no longer work in the D.A.’s office, since his job is to prosecute based on laws and a criminal justice system that the Torah does not accept.

“What did you do?”

“I decided to ‘switch sides’ and become a defense attorney, which has a practical advantage, because I make a lot more money.”

“How do you handle a case where you know that your client is guilty?”

“Firstly, is he guilty according to halachah? Did he perform a crime? Is there halachically acceptable evidence? If there is no halachically acceptable evidence, he is not required to plead guilty. Furthermore, since none of my clients are Noahides or observant Jews, they can’t make it to heaven anyway, so let them enjoy themselves here. Even if my client is guilty, the punishment determined by the court is not halachically acceptable. It is very unclear whether jail terms are halachically acceptable punishment for gentiles.

“Philosophically, I was always opposed to jail time. I think that there are better ways to teach someone to right their ways than by incarceration, which is a big expense for society.”

Interesting Noahide Laws

“Have you come across any other curious issues?”

“Here is a really unusual question I once raised,” John responded. “Am I permitted to vote in the elections for a local judge? According to some authorities, the Torah’s prohibition against appointing a judge who is halachically incompetent applies equally to gentiles (Minchas Chinuch #414). Thus, one may not appoint someone to the bench who does not know the appropriate Torah laws, which excludes all the candidates. When I vote, I am actively choosing a candidate who is halachically unqualified to judge. I therefore decided that, although there are authorities who permit such judging and therefore this voting is permitted, I wanted to be   consistent in my position. As a result, I vote religiously, but not for judgeships.

Becoming Jewish

“John, did you ever consider becoming Jewish?”

“First of all, I know that the rabbis will discourage me from becoming Jewish, particularly since I don’t really want to. I know exactly what I am required to keep and I keep that properly. I have no interest in being restricted to where and what I eat, and I have no interest in observing Shabbos, which, at present, I may not observe anyway, and that is fine with me (Sanhedrin 58b). I am very willing to be a ‘Shabbos goy’— and I understand well what the Jews need –but it is rare that I find myself in this role. Remember, I do not live anywhere near a Jewish community.

“Although I have never learned how to read Hebrew – why bother, I am not supposed to study Torah anyway – I ask enough questions from enough rabbis to find out all I need to know.”

In Conclusion

Although it seems strange for a non-Jew to ask a rav a shaylah, this should actually be commonplace. Indeed, many non-Jews are concerned about their future place in Olam Haba and, had the nations not been deceived by spurious religions, many thousands more would observe the mitzvos that they are commanded. When we meet sincere non-Jews, we should direct them correctly in their quest for truth. Gentiles who observe these mitzvos because Hashem commanded them through Moshe Rabbeinu are called “Chassidei Umos HaOlam” and merit a place in Olam Haba.

The Torah’s Instructions to Non-Jews—The Laws of Bnei Noach

This article is dedicated to the memory of my much beloved and missed brother-in-law, Rabbi Yosef Azar, a very exceptional and popular teacher at various seminaries, who lost his protracted battle with cancer this past week. Rav Yosef leaves behind a widow, my sister Yocheved, and ten children, eight of whom are still living at home; the youngest is only five years old.

Although it may seem strange for a non-Jew to ask a rav a shaylah, it should actually be commonplace. After all, there are hundreds of times more non-Jews than Jews in the world, and each one of them should be concerned about his or her halachic responsibility. Many non-Jews are indeed concerned about their future place in Olam Haba, and had the nations not been deceived by spurious religions, many thousands more would observe the mitzvos that they are commanded. It is tragic that they have been misled into false beliefs and practices.

An entire body of literature discusses the mitzvah responsibilities of non-Jews. Although it was Adam who was originally commanded to observe these mitzvos, they are usually referred to as the “Seven Mitzvos of Bnei Noach,” since all of mankind is descended from Noach.

Furthermore, a Jew should be familiar with the halachos that apply to a non-Jew, since it is forbidden to cause a non-Jew to transgress his mitzvos. This is included under the Torah’s violation of lifnei iver lo sitein michshol, “Do not place a stumbling block before a blind person.” In this case, this means do not cause someone to sin, if he is blind to the severity of his violation (Avodah Zarah 6b).

In actuality, a non-Jew must observe more than seven mitzvos. The “Seven Mitzvos” are really categories; furthermore, there are additional mitzvos that apply, as we will explain.

THE BASICS

The seven cardinal prohibitions that apply to a non-Jew are:

1. AVODAH ZARAH

It is forbidden for a non-Jew to worship idols in any way. Most religions of the world are idolatrous, particularly the major religions of the East.

Although Christianity constitutes idol worship for a Jew, there is a dispute whether it is idolatry for a ben Noach. Some poskim contend that its concepts of G-d do not violate the prohibition against Avodah Zarah that was commanded to Adam and Noach (Tosafos, Bechoros 2b s.v. Shema; Rama, Orach Chayim 156). However, most later poskim contend that Christian belief does constitute Avodah Zarah, even for a non-Jew (Shu’t Noda BiYehudah, Tenina, Yoreh Deah #148; Chazon Ish, Likutim, Sanhedrin 63b p. 536). In this regard, there is a widespread misconception among Jews that only Catholicism is Avodah Zarah, but not Protestantism. This is untrue. Every branch and type of Christianity includes idolatrous beliefs.

2. GILUY ARAYOS, which prohibits many illicit relationships.

3. MURDER, including abortion (Sanhedrin 57b), suicide, and mercy killing.

4. EIVER MIN HACHAI, eating flesh taken from a live animal.

This prohibition includes eating a limb or flesh removed from an animal while it was alive, even if the animal is now dead.

In the context of this mitzvah, the Rishonim raise an interesting question. Adam was forbidden to eat meat (see Bereishis 1:29-30), but, after the Flood, Noach was permitted to do so (Bereishis 9:3; see Rashi in both places). So, why was Adam prohibited from eating flesh of a living animal, if he was prohibited from eating meat altogether?

Two differing approaches are presented to answer this question. The Rambam explains that the prohibition to eat meat that was given to Adam was rescinded after the Flood, and it was then that the prohibition of Eiver Min HaChai was commanded to Noach for the first time (Rambam, Hilchos Melachim 9:1). According to this approach, six of the present day “Seven Mitzvos” were commanded to Adam, while the seventh was commanded only at the time of Noach.

Other Rishonim contend that Adam was permitted to eat the meat of an animal that was already dead, and was prohibited only from killing animals for food. In addition, he was prohibited to eat meat that was removed from a living animal, and this prohibition is one of the “Seven Mitzvos” (Rashi, Sanhedrin 57a s.v. Lemishri and Bereishis 1:29; Tosafos, Sanhedrin 56b s.v. Achal). The first prohibition was rescinded after the Flood, when mankind was permitted to slaughter animals for food. Thus, according to the Rambam, Adam was prohibited both from killing animals and from eating any meat, while according to the other Rishonim, he was prohibited from killing animals but allowed to eat meat.

ANIMAL BLOOD

Although a non-Jew may not eat the flesh of a living animal, he may eat blood drawn from a living animal (Rambam, Hilchos Melachim 9:10; cf. Sanhedrin 56b and 59a, and Rashi, Bereishis 9:3). Some African tribesmen extract blood from their livestock, mix it with milk, and drink it for a nutritious beverage. Although we may consider this practice very offensive, it does not in any way violate the mitzvos for a non-Jew.

5. BLASPHEMY.

Cursing Hashem. As with his other mitzvos, a non-Jew may not claim that he was unaware it is forbidden.

6. STEALING.

This prohibition includes taking even a very small item that does not belong to him, eating something of the owner’s food on the job without permission, or not paying his employees or contractors (Rambam, Hilchos Melachim 9:9). According to some opinions, it includes not paying his workers or contractors on time (Meiri, Sanhedrin).

7. DINIM, literally, laws.

This mitzvah includes the application of a code of civil law, including laws of damages, torts, loans, assault, cheating, and commerce (Ramban, Breishis 34:13; cf. Rambam, Hilchos Melachim 9:14). Furthermore, there is a requirement to establish courts in every city and region, to guarantee that people observe their mitzvos (Sanhedrin 56b; Rambam, Hilchos Melachim 9:14).

ARE NON-JEWS REQUIRED TO OBSERVE THE COMMERCIAL LAW OF THE TORAH?

Does the mitzvah of Dinim require non-Jews to establish their own system of law, or is the mitzvah to observe and enforce the Torah’s mitzvos, which we usually refer to as the halachos of Choshen Mishpat?

In a long teshuvah, the Rama (Shu’t #10) contends that this question is disputed by Amora’im in the Gemara. He concludes that non-Jews are required to observe the laws of Choshen Mishpat, just like Jews. Following this approach, a non-Jew may not sue in a civil court that uses any system of law other than that of the Torah. Instead, he must litigate in a beis din or in a court of non-Jewish judges who follow halachic guidelines (see Rambam, Hilchos Melachim 10:11). Therefore, a non-Jew who accepts money on the basis of civil litigation is considered stealing, just like a Jew. The Rama’s opinion is accepted by many early poskim (e.g., Tumim 110:3; Shu’t Chasam Sofer, Choshen Mishpat #91).

However, the Netziv disagrees with the Rama, contending that non-Jews are not obligated to observe the laws of Choshen Mishpat. In his opinion, the Torah requires non-Jews to create their own legal rules and procedures. Although a Jew is forbidden from using the non-Jewish court system and laws, according to the Netziv a non-Jew may use secular courts to resolve his litigation and indeed fulfills a mitzvah when doing so (HaEmek Shaylah #2:3). Other poskim accept the Netziv’s position (Chazon Ish, Bava Kama 10:1). Several major poskim contend that the dispute between the Rama and Netziv is an earlier dispute between the Rambam and Ramban (Shu’t Maharam Schick, Orach Chayim #142; Shu’t Maharsham 4:86; Shu’t Avnei Nezer, Choshen Mishpat #55).

What is a non-Jew to do if he wishes to sue someone? May he litigate in civil court or must he sue in beis din? Because this subject is disputed, we would have to decide whether the rule of safek de’oraysa lechumra (we are strict regarding a doubt concerning a Torah law) applies to a non-Jew. If the non-Jew asks how to proceed in the most mehadrin fashion, we would tell him to take his matter to beis din, because this is permitted (and a mitzvah) according to all opinions.

It should be noted that, according to both opinions, a non-Jew must observe dina demalchusa dina – laws established by civil authorities for the common good. Therefore, he must certainly observe tax codes, traffic laws, building and zoning codes, and regulations against smuggling.

AN INTERESTING SHAYLAH – BRIBING A DISHONEST JUDGE

The Chasam Sofer (6:14) was asked the following shaylah: A non-Jew sued a Jew falsely in a dishonest court. The Jew knew that the non-Jewish judge would rule against him, despite the absence of any evidence. However, bribing the judge may gain a ruling in the Jew’s favor. May he bribe the dishonest judge to rule honestly?

Chasam Sofer rules that it is permitted. The prohibition against bribing a non-Jew is because he is responsible to have an honest court. However, if the result of the bribe will be a legitimate ruling, it is permitted. (Of course, the Jewish litigant must be absolutely certain that he is right.)

OTHER PROHIBITIONS

In addition to the “Seven Mitzvos,” there are other activities that are also prohibited to a non-Jew. According to many opinions, a non-Jew may not graft trees from different species or crossbreed animals (Sanhedrin 56b; Rambam, Hilchos Melachim 10:6; Meiri ad loc.; cf. Shach Yoreh Deah 297:3 and Dagul Mei’re’vavah ad loc.; Chazon Ish, Kelayim 1:1). According to many poskim, a non-Jew may not even own a grafted fruit tree, and a Jew may not sell him such a tree, because that would cause a non-Jew to violate his mitzvah (Shu’t Mahari Asad, Yoreh Deah #350; Shu’t Maharsham 1:179).

Some poskim contend that non-Jews are prohibited from engaging in sorcery (see Kesef Mishneh, Hilchos Avodah Zarah 11:4). According to this opinion, a non-Jew may not use any type of black magic, necromancy or fortune telling. However, most opinions disagree (Radbaz, Hilchos Melachim 10:6).

MAY A NON-JEW OBSERVE MITZVOS?

A non-Jew may not keep Shabbos or a day of rest (without doing melacha) on any day of the week (Sanhedrin 58b). The reason for this is subject to dispute. Rashi explains that a non-Jew is obligated to work every day, because the Torah writes, “Yom Valayla Lo Yishbosu,” which can be interpreted to mean, “Day and night they (i.e., the non-Jews) may not rest.” The Rambam (Hilchos Melachim 10:9), however, explains that a gentile is prohibited from making his own holiday or religious observance, because the Torah is opposed to the creation of man-made religions. In the words of the Rambam, “A non-Jew is not permitted to create his own religion or mitzvah. Either he becomes a righteous convert (a ger tzedek) and accepts the observance of all the mitzvos, or he remains with the laws that he has, without adding or detracting.” A third reason mentioned is that a Jew may mistakenly learn from a gentile who keeps a day of rest, and the Jew may create his own mitzvos (Meiri).

Because of this halacha, a non-Jew studying for conversion must perform a small act of Shabbos desecration every Shabbos. There is a dispute among poskim whether this applies to a non-Jew who has undergone bris milah and is awaiting immersion in a mikvah to complete his conversion (Shu’t Binyan Tzion #91).

POSITIVE MITZVOS

You probably noticed that there are few positive mitzvos among the non-Jew’s commandments. They are required to believe that the mitzvos were commanded by Hashem through Moshe Rabbeinu (Rambam, Hilchos Melachim 8:11). They are also obligated to establish courts. A non-Jew is permitted to observe the mitzvos of the Torah, with a few exceptions (for example, see Rambam, Hilchos Melachim 10:10). He is even permitted to offer korbanos (Zevachim 116b).

STUDYING TORAH

The Gemara states that a non-Jew is not permitted to study Torah (Sanhedrin 59a). One opinion of the Gemara explains that the Torah belongs to the Jewish people, and by studying Torah the gentile is “stealing” Jewish property. However, there are many exceptions to this ruling. First, a gentile may study all the halachos applicable to observing his mitzvos (Meiri). Rambam rules that it is a mitzvah to teach a non-Jew the halachos of offering korbanos, if he intends to bring them (Rambam, Maasei Hakorbanos 19:16). According to the Rama’s opinion that a non-Jew must observe the Torah’s civil laws, the non-Jew may study all the intricate laws of Choshen Mishpat. Furthermore, since a non-Jew is permitted to observe most mitzvos of the Torah, some opinions contend that he may learn the laws of those mitzvos in order to observe them correctly (Meiri, Sanhedrin 58b).

There is a dispute among poskim whether one may teach a non-Jew Torah if the non-Jew is planning to convert. The Meiri (Sanhedrin 58b) and Maharsha (Shabbos 31a s.v. Amar lei mikra) rule that it is permitted, whereas Rabbi Akiva Eiger forbids it (Shu’t #41). Others permit teaching Nevi’im and Kesuvim to non-Jews (Shiltei HaGibborim, Avodah Zarah 20a, quoting Or Zarua), and other poskim permit teaching a non-Jew about miracles that the Jews experienced (Shu’t Melamed Leho’il Yoreh Deah #77).

Incidentally, Rav Moshe Feinstein rules that one is permitted to teach Torah to Jews while a non-Jew is listening (Shu’t Igros Moshe, Yoreh Deah 2:132). For this reason, he permits conducting a Seder with a non-Jew in attendance.

OLAM HABA FOR A NON-JEW

A gentile who observes his mitzvos because Hashem commanded them through Moshe Rabbeinu is called one of the Chassidei Umos HaOlam and merits a place in Olam Haba. Observing these mitzvos carefully does not suffice to make a non-Jew into a Chassid. He must observe his mitzvos as a commandment of Hashem (Rambam, Hilchos Melachim 8:11).

When I was a congregational rabbi, I often met non-Jews who were interested in Judaism. I always presented the option of becoming an observant ben Noach. I vividly recall meeting a woman whose grandfather was Jewish, but who herself was halachically not Jewish. She was keeping kosher – no small feat in her town, where there was no Jewish community. Although she had come to speak about converting, since we do not encourage conversion I explained the halachos of Bnei Noach to her instead.

An even more interesting experience occurred when I was once making a kashrus inspection at an ice cream plant. A worker there asked me where I was from, and then informed me that he used to attend a Reform Temple two blocks from my house! I was surprised, not expecting to find a Jew in the plant. However, it turned out that he was not Jewish at all, but had stopped attending church after rejecting its beliefs. Now, he was concerned, because he had stopped attending the Reform Temple that was far from his house. I discussed with him the religious beliefs and observances of Bnei Noach, explaining that they must be meticulously honest in all their business dealings, just like Jews. I told him that Hashem gave mitzvos to both Jews and non-Jews, and that Judaism is the only major religion that does not claim a monopoly on heaven. Non-Jews, too, merit olam haba if they observe their mitzvos.

Over the years, I have noticed that many churchgoing non-Jews in the United States have rejected the tenets of Christianity. What they have accepted is that Hashem appeared to Moshe and the Jewish people at Sinai and commanded us about His mitzvos. This belief is vital for non-Jews to qualify as Chassidei Umos HaOlam – they must accept that the commandments of Bnei Noach were commanded to Moshe (Rambam, Hilchos Melachim 8:11).

CONCLUSION

As Jews, we do not proselytize to gentiles, nor seek converts. However, when we meet sincere non-Jews, we should direct them correctly in their quest for truth by introducing them to the Seven Mitzvos of Bnei Noach.

Bnei Noach and Korbanos

Question #1: Rite or Wrong?

“My neighbor is not Jewish and believes in G-d, but she has rejected any of the existent organized religions. She often burns incense, which she learned about in Eastern religions, and she says that she does this to feel G-d’s presence in her life. May I enter her house while the incense is burning?”

Question #2: Joining the Sprinklers

“This must be the strangest question that I have ever asked. While camping, I met a group of sincere non-Jews who told me that they believe in one G-d and have regular getaways to discuss how they can live more in His image. While I was with them, they sprinkled some wine and oil on a campfire in commemoration of the Biblical sacrifices. They invited me to join them, which I did not, but I am curious to know whether I could have sprinkled with them.”

Question #3: The Doubting Moslem

“My coworker, who still considers herself a Moslem, confides in me a lot of her doubts about her religion. Should I be encouraging her away from Islam, or is it not necessary to do so, since they do not worship idols?”

Answer: Mitzvos Bnei Noach

All the questions asked above were by Jews about non-Jews. Indeed, although it may seem strange for a non-Jew to ask a rav a shaylah, it should actually be commonplace. After all, there are hundreds of gentiles for every Jew in the world, and each one of them should be concerned about his or her halachic responsibility. As a matter of fact, there are many non-Jews who are indeed concerned about their future place in Olam Haba and, had the nations not been deceived by spurious religions, thousands and perhaps millions more would observe the mitzvos of Bnei Noach that they are commanded. It is tragic that they have been misled into false beliefs and practices.

Fortunately, there is a revival of interest among gentiles to observe the requirements given them in the Torah. There are now many groups and publications devoted to educating non-Jews about their halachic responsibilities. The mitzvah requirements of non-Jews are usually referred to as the “Seven Mitzvos of the Bnei Noach,” although in actuality, these “Seven Mitzvos” are really categories. A gentile is required to accept that these commandments were commanded by Hashem to Moshe Rabbeinu (Rambam, Hilchos Melachim 8:11). A non-Jew who follows these instructions qualifies to be a “righteous gentile,” one of the Chassidei Umos Ha’olam who merits a place in Olam Haba.

Jews should be familiar with the halachos that apply to a non-Jew, since it is forbidden to cause a gentile to transgress his mitzvos. This is included under the Torah’s violation of lifnei iver lo sitein michshol, “Do not place a stumbling block before a blind person.” In this context, the verse means: Do not cause someone to sin if he is blind to — that is, unaware of — the seriousness of his violation (Avodah Zarah 6b). For example, a Jew may not sell an item to a gentile that he will use for idol worship, or an item that is designed for criminal activity.

Gentiles and the Beis Hamikdash

May a gentile pray in the Beis Hamikdash?

The Beis Hamikdash was meant to serve gentiles as well as Jews, as the pasuk states: Ki beisi beis tefila yikarei lechol ha’amim; My house shall be called a house of prayer for all the nations (Yeshaya 56:7). This sentiment was expressed by Shlomoh Hamelech in his public prayer whereby he dedicated the Beis Hamikdash, “…and also to the gentile who is not from Your people Israel, and who comes for the sake of Your name from a distant land. When they will hear of Your great Name, Your powerful hand and Your outstretched arm and come to pray in this house, You will hear from Heaven, the place of Your abode, and do whatever the gentile requests of You, so that all the nations of the Earth will know Your Name and fear You (Melachim I 8:41- 43).

Gentiles and Sacrifices

Not only was the Beis Hamikdash a place where gentiles could pray and serve Hashem, it was also a place where they could offer korbanos (Zevachim 116b). A gentile who desired to bring a korban in the Beis Hamikdash could do so, and, when it is rebuilt, their offerings will be welcome. The laws governing how these korbanos are offered are fairly similar to what governs voluntary korbanos offered by a Jew. Allow me to explain.

A Jew may voluntarily offer several types of korbanos in the Beis Hamikdash. He may offer a korban shelomim (sometimes called a “peace-offering”), in which case the owner receives most of the meat to eat in Yerushalayim when he is in a state of purity (taharah). A Jew may also offer a korban olah, which is offered in its entirety on the mizbei’ach, the altar, in a specifically prescribed fashion.

A gentile may offer a korban olah in the Beis Hamikdash, but he may not offer a korban shelomim. When this olah is offered, the procedure of its offering is virtually identical to that of a Yisrael. This means that any Jewish shochet may slaughter the korban, but it may not be slaughtered by a gentile, since a gentile’s slaughtering is, by definition, invalid as shechitah. The Kohanim then proceed to offer the korban of the gentile, just as they would offer the korban of a Jew, following all the halachos of a korban olah.

Gentiles and Imperfections

The animal that a gentile offers in the Beis Hamikdash must be completely unblemished (Vayikra 22:25). An animal suffering from visible impairments or injuries is called a baal mum and is invalid. Some examples of this are an animal with a broken limb, one that cannot walk in a normal way, one whose limbs are noticeably disproportionate to one another or relative to its species, or a blind animal. All told, there are 73 different imperfections that invalidate a korban as a baal mum (Sefer Hachinuch). Were a kohen to offer the imperfect offering of a gentile, he would be violating the Torah’s express prohibition and be liable for the resultant punishments. For an in-depth discussion of this topic, the intrepid reader is referred to Minchas Chinuch, Mitzvah 292. The same author mentions that the laws governing a gentile’s korban may, in one situation, actually be more stringent that those governing a Jew’s korban. The details of how this could happen are beyond the scope of this article.

Treatment of Holy Bulls and Sheep

There are a few differences in halachah between the korban olah offering of a Jew and that of a gentile. Prior to a Jew offering a korban, he rests his hands on the head of the animal and presses down on the animal’s head. This procedure is called semichah, and, while doing so, the owner of the korban recites viduy, confessing his sins. However, when a gentile’s offering is brought, no semichah is performed (Temurah 2a).

There is another curious difference between the olah offered by a gentile and that offered by a Jew. When a Jew consecrates an animal as a korban olah, someone who subsequently uses the consecrated animal, such as one who sheared the wool of a consecrated ram or worked a consecrated bull, violates a serious prohibition of the Torah called me’ilah. The individual who committed this prohibition negligently must offer a special korban called an asham as atonement. However, when a gentile donates an olah there is no prohibition min haTorah to use the animal and there is no violation of the prohibition of me’ilah. The Gemara concludes that using the consecrated animal is prohibited only miderabbanan (Temurah 3a).

Gentile Exceptions

A Jew may also offer wine to the Beis Hamikdash, which is then poured onto the mizbei’ach. However, a gentile may not offer wine or other similar offerings (Temurah 2b, as explained by Rashi). On the other hand, a gentile may donate any item of value or cash to the Beis Hamikdash to assist in its upkeep (Bedek Habayis). This leads to a very surprising halachah. Although, as I mentioned above, there is no prohibition of me’ilah should one use the korban of a gentile, property that he donates to the Beis Hamikdash is subject to this prohibition in the same way that a Jew’s donation is (Temurah 3a).

Outside the Beis Hamikdash

Once the Beis Hamikdash was constructed, the Torah prohibited a Jew from offering korbanos anywhere else in the world (Devarim 12: 13, 14, 26, 27). Someone who sanctifies an animal to be a korban and then offers it on an altar outside the Beis Hamikdash violates two grave prohibitions of the Torah called shechutei chutz, slaughtering a korban outside the approved area, and ha’ala’ah bachutz, offering a korban outside its approved area. As a result, since our Beis Hamikdash unfortunately still lies in ruins, we cannot offer any korbanos to Hashem, and we must await its rebuilding to offer them.

A gentile is not required to observe these mitzvos, and, consequently, he may offer korbanos anywhere he chooses: in his backyard, on his camping trip or even in a shul! A Jew, however, may not assist in this endeavor, since this violates his mitzvos shechutei chutz and ha’ala’ah bachutz, notwithstanding the fact that the korbanos were sanctified by a gentile (Zevachim 45a; Rambam, Hilchos Maasei Hakorbanos 19:16).

Although a Jew may not offer these korbanos for the gentile, he may instruct the gentile how to offer them correctly. To quote the Rambam, “A gentile is permitted to offer korbanos olah to Hashem anywhere he would like, provided that he offers them on an altar that he constructed. A Jew may not help him, since a Jew is prohibited from offering korbanos outside the Beis Hamikdash. Nevertheless, a Jew may teach him how to bring the korban to Hashem properly” (Rambam, Hilchos Maaseh Hakorbanos 19:15).

The Rambam adds a requirement to this halachah — this korban must be offered on some type of constructed altar.

Blemished Offerings

Whereas the korban of a gentile offered in the Beis Hamikdash must be performed by kohanim, a gentile who offers a korban outside the Beis Hamikdash may perform the procedures himself, and actually must have the procedures performed by a non-Jew. In addition, he may offer from any kosher species (Bereishis 8:20 with Bereishis Rabbah and Rashi), whereas in the Beis Hamikdash one may offer only sheep, goats, bovines, turtledoves and pigeons. Furthermore, most of the 73 blemishes that invalidate a korban as a baal mum do not apply to what a gentile offers outside the Beis Hamikdash. The only such restriction that applies outside the Beis Hamikdash is a missing limb, but any other injury or physical impediment does not invalidate the korban (Temurah 7a; Avodah Zarah 5b).

Gentile Mitzvos

We need to address one more point before we can answer our opening questions: May a gentile observe mitzvos of the Torah, and may he create his own observances?

A gentile may not keep Shabbos or a day of rest (meaning, a day that he refrains from doing any activity that is forbidden on Shabbos, melachah) on any day of the week (Sanhedrin 58b). This is considered a very grievous violation of the Torah. I am aware of three approaches provided by the Rishonim to explain this law.

Rashi’s Reason

Rashi explains that a non-Jew is obligated to work every day, because the Torah writes, “Yom valayla lo yishbosu,” which can be interpreted to mean, “Day and night they (i.e., the non-Jews) may not rest.” According to his understanding, this prohibition has nothing to do with any ban against a gentile performing religious practices to Hashem. There is a specific requirement for gentiles to work every day – or, at least, to perform melachah.

Meiri’s Reason

The Meiri presents a different reason why a gentile may not observe a day of rest — that a Jew may mistakenly learn from him that it is acceptable to create his own mitzvos. Of course, creating one’s own mitzvos, which is a very popular idea among contemporary religions, defeats the entire reason of observing the Torah and keeping mitzvos. The purpose of the Torah is for us to become close to Hashem by following what He instructs us to do. Creating one’s own mitzvos implies that I can somehow bribe G-d to do what I want. Although we realize the foolishness of this approach, this idea underlies all of idolatry and greatly influences the way most of mankind views religion.

Rambam’s Reason

The Rambam’s approach is similar to the Meiri’s, in that he explains that a gentile is prohibited from making his own holiday or any other religious observance, because the Torah is opposed to the creation of man-made religions (Hilchos Melachim 10:9). In the words of the Rambam, “A non-Jew is not permitted to create his own religion or mitzvah. Either he becomes a righteous convert (a ger tzedek) and accepts the observance of all the mitzvos or he remains with the laws that he has without adding or subtracting.” Any attempt to create a mitzvah other than that of the Torah runs counter to Hashem’s goals for mankind, as I will soon explain.

Contradiction in Rambam

However, many authorities ask if the Rambam seems to be contradicting himself. The Mishnah states that the terumah or maaser separated by a gentile from his own crops is halachically valid, and his declaring his property to belong to the Beis Hamikdash (hekdesh) is similarly valid (Terumos 3:9). In his Commentary, the Rambam states that even though a gentile is not obligated to keep mitzvos, observing them allows him a small degree of reward. This statement implies that a gentile can receive reward for fulfilling mitzvos of the Torah.

There are several approaches to answer this seeming contradiction. According to Rav Moshe Feinstein, there are a few very specific mitzvos that a gentile is permitted to observe, and only in these instances will he reap any reward for observing them. Those are mitzvos where we find that a gentile was specifically included, such as tzedakah, prayer, offering korbanos and separating terumos and maasros (Shu”t Igros Moshe, Yoreh Deah 2:7). In Rav Moshe’s opinion, a gentile who observes any other mitzvah receives no reward. However, should he perform these mitzvos knowing that he is not commanded to do so, we do not stop him. On the other hand, if he performs these activities because he wants to consider himself obligated to keep them, we should prevent him from doing so if we can, and we should certainly discourage his observing them.

Others contend there are ways whereby a gentile can become obligated in Torah mitzvos (Biur Halachah, end of 304, in explanation of the Magen Avraham), and there are others who feel that a gentile who observes mitzvos, knowing that he is not required to do so, receives reward for his endeavor (see Sefer Hamafteiach, Melachim 10:10). Among those authorities who follow the last approach, some exclude a gentile from observing certain mitzvos. For example, the Radbaz (Hilchos Melachim 10:10) prohibits a gentile from wearing tefillin or placing a mezuzah on his door, and the Taz (Yoreh Deah 263:3) and the Levush prohibit him from performing bris milah (but see the Shulchan Aruch 268:9, Nekudos Hakesef ad locum, and the Shach, Yoreh Deah 263:8 and 268:19 who disagree).

Answering our Questions

At this point, we are equipped to examine the opening questions. The first question was:

“My neighbor is not Jewish and believes in G-d, but she has rejected any of the existent organized religions. She often burns incense, which she learned about in Eastern religions, and she says that she does this to feel G-d’s presence in her life. May I enter her house while the incense is burning?”

Is the neighbor doing something idolatrous? It may be, depending on what her understanding is of G-d. If, indeed, her acts comprise avodah zarah, then one should not be in her house when the incense is kindled, because one is benefiting from idol worship.

On the other hand, if she understands G-d similar to the way a Jew does, there is no idolatry in her act. Assuming that this is true, then there is nothing wrong with enjoying the fragrance of her incense.

Joining the Sprinklers

The second question was: “This must be the strangest question that I have ever asked. While camping, I met a group of sincere non-Jews who told me that they believe in one G-d and have regular getaways to discuss how they can live more in His image. While I was with them, they sprinkled some wine and oil on a campfire in commemoration of the Biblical sacrifices. They invited me to join them, which I did not, but I am curious to know whether I could have sprinkled with them.”

It is good that you did not join them. For a Jew to effect any type of korban outside the Beis Hamikdash is prohibited, although, because of certain halachic details, this situation would not have involved the severe violation of ha’ala’ah bachutz. Similarly, these individuals did not fulfill a gentile’s mitzvah of offering korbanos, because their fireplace did not meet the halachic requirements of an altar.

The Doubting Moslem

“My coworker, who still considers herself a Moslem, confides in me a lot of her doubts about her religion. Should I be encouraging her away from Islam, or is it not necessary to do so, since they do not worship idols?”

Without question, observing Islam is a grievous sin, even for a gentile, despite the fact that there is no idolatry involved (see also fRitva, Pesachim 25b). Hashem gave very specific instructions of how He wants mankind to worship Him, and any other attempt is prohibited. Therefore, if your coworker is asking you for direction in her life, you should explain to her the fallacies of Islam and how she could indeed fulfill Hashem’s wishes by becoming a proper bas Noach.

Conclusion

We are meant to be “a light unto the nations,” which charges us with the responsibility to act in a manner that we create a kiddush Hashem. If we have the opportunity to educate non-Jews how to live their lives as proper, G-d-fearing Bnei Noach, that is surely within the scope of our directives.

Bill’s Saga or The Power of a Single Word

Since parshas Pinchas discusses many of the relationships of Hashem and His people, I’ll share with you the following true story:

Bill’s Saga or The Power of a Single Word

There was a knock on the door to my shul office. I knew Bill, an active member of one of the large Conservative temples in the city. Bill and his wife were respected members of the non-observant Jewish community; involved Jews, they kept a kosher home, made kiddush and ate Shabbos meals, although they certainly were not Shabbos compliant.

The matter that brought Bill to my office this morning was obviously disconcerting. Usually a very relaxed and jovial fellow, Bill was today uncharacteristically agitated.

“Rabbi,” he hesitantly began, “I have a matter I want to discuss with you that I want absolutely no one to know about.” I assured Bill that I always assume matters I am told are confidential unless specified otherwise.

Reassured that his big secret would remain as confidential as he wanted, Bill blurted out his issue. Bill had been raised as a reform Jew; furthermore, he was unaware of any ancestors of his who had been shomrei mitzvah. He had gradually been finding his way towards more observant Judaism, and had married a woman who kept a kosher home and a semblance of a traditional, although certainly not fully observant, Shabbos.

“Rabbi,” he now got to his point, “I do not think I am Jewish according to halacha! I am fairly certain that my mother’s mother was not born Jewish. Since the family was never observant, how could she have had a proper halachic conversion? And, if she was not Jewish, neither am I.” With this confession accomplished, Bill breathed a sigh of relief.

After relaxing from the trauma of his introduction, Bill continued with his request. He wanted me to help him proceed with the path of becoming a proper Jew according to halacha, and he meant a 100%, correct halachic conversion. He made it quite clear that he was not pressuring anyone to convert him quickly; that would defeat his purpose. He was asking me to direct and guide him as to how to convert to Judaism in a way that I would be comfortable. He was quite frank that I should not proceed with steps for conversion until I felt he was ready.

I marveled at Bill’s honesty. Unfortunately, many people who are aware of this type of information choose to ignore it, pretending to be Jewish, although they realize deep inside that they are not. Bill realized, intellectually, the truth of Torah, and was eager to observe many mitzvos, such as brachos and tefillah. However, he was not ready to observe a fully Torah-observant life. He was in the spiritual throes of someone in the process of becoming observant: intellectually convinced of the truth of Torah, able and eager to observe some mitzvos, but not ready for others. This is the typical and healthy route for someone moving towards greater observance of halacha.

At the same time, Bill wanted his status to be kept an absolute secret. He did not mind people knowing that he was studying with the Orthodox rabbi in town, but he did not want ANYONE to know that his Jewishness was in question, and that he was thinking about pursuing an Orthodox conversion.

In the interim, since conversion to Yiddishkeit requires accepting all mitzvos, Bill was clearly not a candidate for geirus kehalacha. This led us to many interesting shaylos.

STUDYING TORAH

Since Bill was not Jewish, what Torah and halacha could he study? The Gemara (Sanhedrin 59a) prohibits a gentile from studying Torah, one opinion contending that since the Torah belongs to the Jewish people, a gentile studying it is “stealing” Jewish property. Rav Moshe Feinstein rules that one is permitted to teach Torah to Jews while a non-Jew is listening (Shu’t Igros Moshe, Yoreh Deah 2:132). Thus, I would not violate any halacha if Bill attended a class I was delivering. However, although Rav Moshe permits giving the class under those circumstances, if the gentile involved asks a shaylah, he should be told not to attend, since he is still “stealing” Torah that he should not be studying.

HALACHOS THAT APPLY TO A GENTILE

A gentile may study Torah in order to observe the mitzvos in which he is obligated, and he may study the basics of Jewish belief (Meiri, Sanhedrin ad loc.). This includes a rather extensive list of mitzvos, and according to many opinions even requires him to know all the laws of Choshen Mishpat, the entire body of halachic civil law, so that he can observe these mitzvos correctly. This is because many poskim contend that a gentile’s requirement to keep halachic civil law (dinim) requires him to keep the laws as the Torah instructed them (Shu’t Rama #10; Tumim 110:3; Shu’t Chasam Sofer, Choshen Mishpat #91). However, other authorities contend that non-Jews are not required to observe Choshen Mishpat, but instead to create their own legal rules and procedures (HaEmek Shaylah #2:3; Chazon Ish, Bava Kamma 10:1; see Shu’t Maharam Schick, Orach Chayim #142; Shu’t Maharsham 4:86; Shu’t Avnei Nezer, Choshen Mishpat #55, all of whom contend that this is a dispute between amora’im in the Gemara). According to the latter opinion, one may not teach a gentile halachic civil law.

STUDYING FOR CONVERSION

The poskim dispute whether one may teach a non-Jew Torah if he is planning to convert. Meiri (Sanhedrin 58b) and Maharsha (Shabbos 31a s.v. amar lei mikra) rule that one may, whereas Rabbi Akiva Eiger (Shu’t #41) forbids it.

Was Bill really studying for conversion at this point? Although he strongly desired to be Jewish, he was not prepared to observe all the mitzvos. Since one cannot select which mitzvos one wants to observe, Bill was not really a candidate for conversion. Thus, teaching him Torah might be a problem, even according to the lenient opinions noted above.

Yet, Bill was very eager to study the laws of tefillah and brachos, both areas of halacha he was already observing to the best of his knowledge. Could I teach him these laws?

There is a basis to permit teaching him these halachos: One may teach a non-Jew the laws of offering korbanos if he intends to bring them, even though he has no requirement to observe this mitzvah. Nevertheless, once he decides to observe it, he should fulfill it correctly, and a Jew may instruct him how to proceed (Zevachim 116b; Rambam, Maasei HaKorbanos 19:16). Since a non-Jew may pray and recite brachos it follows that he may learn the laws of these mitzvos, to know how to observe them correctly (Meiri, Sanhedrin 58b).

COMING TO SHUL

At this point, Bill presented the following question:

“I once heard that Jews may not daven with a non-Jew in attendance. Would this present a problem?”

The authorities rule that someone outside a shul who can hear the prayers recited there may answer Amen and the other appropriate responses to their brachos and thus fulfill his responsibilities (Tur Orach Chayim 55). However, some authorities contend that one may not respond or fulfill the mitzvah if something ill-smelling or an idol is between the shul and the person listening (Beis Yosef, Orach Chayim 55, quoting Mahari Abohav). The idea is that the sanctity of the bracha becomes interrupted by something that prevents one from reciting prayer or learning Torah, and one may not recite a prayer near an idol or something with an unpleasant odor. The original sources imply that not only an idol, but also an idol worshipper, prevents the prayer from spreading beyond this point (Elyah Rabbah 55:18; cf. Magen Avraham 55:15, who is lenient).

However, it seems that only an idol worshipper is a problem, not a G-d-fearing person who is not Jewish. An idol worshipper ignores G-d’s presence, and thus, the prayer to   G-d is blocked; a G-d-fearing gentile is made in the image of G-d, and certainly does not block a prayer to Him from passing through (Shu’t Nimla Tal).

And so, life continued. Bill slowly increased his commitment to Judaism, yet was unable to make the commitments necessary to consider true geirus. In the meantime, I studied with him. It was a good lesson to me in working on my own middos; I tend to be impatient and like to have projects completed quickly. Here, I needed to resign myself to the fact that Bill might never become sufficiently committed for proper geirus, and certainly needed to proceed at his own pace, without any encouragement. For his own part, Bill seemed satisfied with his direction and had no timetable.

THE FAMILY HISTORY

One day Bill called, asking to see me as soon as possible.

We met, and he told me the following story:

He had decided to press his mother for the details of the Jewishness of her family history. His mother told him what she knew about the background, which was not a lot, but then shared with him an interesting tidbit: “You know, the rabbi who performed my sister’s wedding was Orthodox, and I know that she never had an Orthodox conversion.”

By now, Bill knew enough not to rely on his mother’s description of a rabbi as Orthodox; and his mother’s older sister, Susan, was long deceased, thus making it difficult to verify the story. However, Bill’s uncle, Susan’s husband, was alive and well and living in town. Bill decided to have a chat with Uncle, who was an eccentric sort of fellow, a bit of a recluse and also a notorious packrat. Bill’s idea proved to be wise, as we will see.

Uncle told Bill that indeed, he and his late wife had been married by an Orthodox Rabbi, a Rabbi Leibel Tabachnik*, an old Eastern European rabbi who had been the rabbi in the shul where Uncle’s parents had davened. “If it’s important to you, I’ll see if I can find some verification.” Bill wasn’t sure what information Uncle would locate, but decided to press his uncle for details anyway. Uncle promised to sift through his memorabilia that he stored in his massive basement and see what he could find.

A few days later, presented Bill with two very interesting pieces of memorabilia. The first was a copy of his late wife’s kesubah, a withered, sixty-five-year-old document that appeared to have been perfectly valid. The kesubah was indeed signed in Hebrew by Rabbi Leibel Tabachnik, who, apparently, had signed on the document with another witness of his own choosing to guarantee that the ceremony was 100% kosher. The rav had served as one of the witnesses, not an uncommon procedure when performing a wedding in a community of nonobservant people. He and the other witness had affixed their signatures, complete with family name and position.

Uncle produced another interesting tidbit; a fifty-year-old newspaper obituary of Rabbi Tabachnik. From the obit and the accompanying photo, it was apparent that we were discussing a bearded rav who had studied in the citadels of Torah in Eastern Europe. Moreover, he had clearly remained committed to Torah and mitzvos throughout his illustrious rabbinic career, notwithstanding the challenges of the profession in America in that era.

Bill was uncertain whether any of this information had any ramifications to his own status, but eagerly presented me with the data.

I carefully examined the data. Although newspaper obituaries are not primary sources for halachic decisions, this one corroborated the information of the kesubah. Rabbi Tabachnik had apparently been a knowledgeable rav who followed halacha meticulously, as one would expect from someone with his education. The importance of this fact was a significant and surprising bit of information that the kesubah supplied: The kesubah referred to the bride, Susan (Bill’s aunt), as a besulah, a designation which is halachically inappropriate to use, unless she had been Jewish at birth. However, this information conflicted with the original assumptions Bill had presented me. According to Bill’s information, Susan’s mother was a non-Jewish woman who had married a Reform Jew who, presumably, would not have had any reason to ask her to convert to Judaism according to the Torah. Thus, their children would not have been Jewish, according to halacha. If Susan had become Jewish at some point, the kesubah would say that she was a geyores, a convert to Judaism. The pieces of the puzzle did not fit together!

There was one obvious answer. Maybe Rav Tabachnik, esteemed scholar that he was, was unaware of Susan’s family background. Perhaps Susan was not halachically Jewish, or had converted to Judaism, and the rav was unaware of this.

There was another possibility: Bill’s information was completely wrong and his mother’s mother was in fact Jewish, either born Jewish or converted according to halacha, sometime before her daughters were born. Thus, the kesubah was perfectly accurate, and Bill was, indeed, Jewish! I stored this information but was uncertain what to do, based on the new evidence.

THE P’SAK

Shortly thereafter, I saw a well-known posek and eagerly discussed with him the details that I had. After hearing me out, the esteemed posek turned to me and said, “Rav Tabachnik would have known if this woman was not born Jewish. If he wrote in the kesubah that she was born Jewish, then she was born Jewish. End of discussion.”

If Susan, Bill’s mother’s older sister, was born Jewish, then Bill’s mother was also definitely born Jewish, and Bill was born Jewish, although we did not know any other details. To make sure I understood the ramifications of the psak I had just heard, I repeated:

“Does that mean, that Bill is 100 percent Jewish?”

The rav replied, “Absolutely.”

Suddenly I realized the power of a single written word. Somehow, Rabbi Tabachnik knew that Bill’s grandmother was Jewish, and he had conveyed this message to us through the carefully written kesubah.

Suddenly, Bill came out of hiding! He could now proudly count himself as a member of a minyan, and was obligated to keep all the mitzvos of a Jew – and to learn all parts of the Torah!

 

*all names in this article have been changed*

May a Non-Jew Own a Nectarine Tree? For That Matter, May a Jew?

clip_image002Recently I received the following query:

“I am not Jewish, but I observe the laws of Noahides as recorded in the writings of Maimonides, which I have read in the Yale University translation. I am aware that a gentile may not graft one species of tree onto another. Does owning a nectarine tree violate this prohibition? I would be greatly appreciative if you could answer this question since I have just purchased a house with a nectarine tree in the yard.

Sincerely,

Jacqueline Baker

250 Washington Blvd.

Asheville, NC” (name and address have been changed)

Many of us reading the heading may have wondered, “If I am permitted to eat nectarines, why shouldn’t I own a nectarine tree?” Although the answer to this question is fairly straightforward, there are many other issues that need clarification before we can answer Jacqueline’s shaylah.

First, let us explain the halachos of tree grafting applicable to Jews.

Sadly, because many Jews are unfamiliar with these halachos and unaware of the prevalence of grafted trees, they often unwittingly violate these laws.

Also, most people misunderstand the prohibition against kilayim, which is often translated as “mixed species.” People often misunderstood this to mean a prohibition against hybridization or cross-breeding. Although it is true that the Torah prohibits crossbreeding different species of animal, virtually all other types of forbidden kilayim have nothing at all to do with hybridization. First, we will list the six types of prohibited mixtures, called kilayim.

1. Wearing shatnez, which is a mix of wool and linen.

2. Cross-breeding two animal species.

3. Using two animal species to haul or work together. This mitzvah is usually called lo sacharosh, do not plow with an ox and a donkey together.

4. Grafting different tree species. A sub-category of this prohibition is planting one species on top of or inside another species.

5. Planting other crop species in a vineyard. (“Crop” in this article refers to any non-woody edible plant, such as vegetables, beans, wheat, poppyseed, etc.) 6. Planting two crop species together or near one another. Kilayim does not apply to species that are not eaten.

Although we usually assume that the word kilayim means “mixture,” some commentaries explain that this word originates from the same Hebrew root as the word “prison,” beis ke’le. Thus Rav Hirsch (Vayikra 19:19) explains that the root word ke’le means to keep or hold something back, and that the plural form kilayim is similar to yadayim or raglayim and means a pair. Therefore the word kilayim means to pair together two items that should be kept apart.

In order to explain the prohibition against grafting trees, the subject of our article, I will first provide some scientific background for city dwellers like myself, who know almost nothing about gardening and horticulture. Having been a city slicker almost my whole life, I freely admit that I knew little about this subject until I did some research in order to understand the halacha.

Hybridization (cross-breeding) of plants occurs when one pollinates the flower of one species with pollen from a different species. However, most of the prohibitions of kilayim have nothing to do with cross-breeding species. In the case of “herbaceous plants,” that is plants other than trees and shrubs, kilayim is a prohibition against planting two crop species close together. The halacha prohibits planting an alien crop species inside a vineyard, planting one species very close to another already planted species, planting one species on top or inside another species, and planting the seeds of two species together. Incidentally, these prohibitions apply only in Eretz Yisroel, with the exception of planting a different species inside a vineyard (Gemara Kiddushin 39a) and possibly of planting one species inside another (see Gemara and Tosafos Chullin 60a; Rambam, Hil. Kilayim 1:5 and Radbaz). Thus, someone in Chutz La’Aretz may plant his backyard garden with a wide variety of vegetables and other edibles without any halachic concern, whereas in Eretz Yisroel, someone planting a garden patch must be very careful to keep the different species separate. The complicated question of how far apart to plant them, and what qualifies as a valid separation if one plants them close together, is beyond the scope of this article (see Chazon Ish, Hil. Kilayim 6:1).

(By the way, the halachic definition of a species often differs from scientific definitions. For example, although some scientists consider wolves and dogs to be the same species, halacha does not; therefore one may not crossbreed them or use them to haul a load together [Mishnah Kilayim 1:6]. On the other hand, the Chazon Ish [3:7] discusses whether all citrus fruits are the same species concerning the laws of kilayim, which would permit grafting a grapefruit tree onto a lemon stock, whereas scientists consider them as two distinct species. According to the majority opinion, an esrog grafted onto a lemon tree is non kosher for the mitzvah on Sukkos, although the grafter may not have violated any Torah prohibition in the process.)

HARKAVAS ILAN – CROSS-GRAFTING

The laws of kilayim also prohibit grafting a branch of one species of tree 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 modern peach and nectarine trees are produced by grafting a peach or nectarine branch onto the stock of a hardier tree, such as an almond. As I will explain, someone who performs this, either in Eretz Yisroel or in Chutz La’Aretz, violates a Torah prohibition whether he is Jewish or not. Therefore, a Jew who hires or requests a non-Jew to graft such a tree, or even to prune or water it after it was implanted, contravenes lifnei iveir, causing someone else to break a prohibition.

Because so many trees are grafted nowadays, someone who owns a peach tree should have a horticultural expert check whether its stock is also a peach tree, or whether it is of a different species. If the stock is peach, even of a different variety, he may keep the tree; if the stock is of a different species, he should chop off the tree below the point of the graft. (Some have suggested that George Washington chopped down his father’s cherry tree because it was grafted onto a different species. If this is true, George did an additional good deed, at least according to some opinions, besides telling the truth afterwards.) As we will see shortly, there is no violation of baal tashchis in cutting down this tree.

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 very different from the upper part of the tree, this indicates that the upper part of the tree was grafted, possibly onto a different species. Before purchasing a new tree at a nursery, examine the trunk carefully for signs of grafting. If indeed this tree is the product of a graft onto a different species, then watering or pruning it violates a Torah law, as I will explain. Furthermore, one may not use the sprinkler to irrigate the rest of the lawn if this tree will benefit.

NECTARINE TREES

Nectarine trees are susceptible to a host of plant diseases, and as a result are usually grafted onto the stock of peach, plum, almond or other trees. It is unclear whether peach and nectarine are halachically considered the same species or not, but the other species are certainly different species halachically. Therefore, although cross-pollinating different species does not violate halacha, watering a nectarine tree grafted onto a different species stock does.

By the way, one may plant or maintain different species of trees in close proximity, presumably because grown trees do not look mixed together but stand distinct.

DOES THE PROHIBITION AGAINST GRAFTING APPLY IN CHUTZ LA’ARETZ?

Although most agricultural mitzvos (mitzvos hateluyos ba’aretz), such as terumah, maaser, and shmittah, apply only in Eretz Yisroel, some of these mitzvos also apply in Chutz La’Aretz, such as the mitzvah of orlah, which prohibits using fruit that grows on a tree before it is three years old.

Although the laws of orlah differ when the tree grows in Chutz La’Aretz, the fruit produced before the tree is three years old is nevertheless prohibited.

Where does kilayim fit into this picture? Of course, some kilayim prohibitions, such as shatnez, cross-breeding animals and lo sacharosh are not agricultural and therefore apply equally in Eretz Yisroel and in Chutz La’Aretz. Among the agricultural prohibitions of kilayim, some apply in Chutz La’Aretz also, whereas others apply only in Eretz Yisroel. .

Planting vegetables and other edible crops together applies only in Eretz Yisroel, grafting trees applies equally in Chutz La’Aretz and in Eretz Yisroel min hatorah, while planting in a vineyard applies in Chutz La’Aretz but only midirabbanan (Gemara Kiddushin 39a).

MAY ONE OWN KILAYIM?

The Gemara (Moed Katan 2b) cites a dispute whether maintaining kilayim in a vineyard (in Eretz Yisroel) is prohibited min hatorah. Rabbi Akiva contends that building a fence to protect kilayim violates a Torah law, whereas the Sages contend that it does not (Rashi to Avodah Zarah 64a).

Most poskim conclude that one may not own kilayim but must rip it up (Shulchan Aruch Yoreh Deah 297:2); Rambam (Hil. Kilayim 1:2) paskins like the Sages that this is prohibited only midirabbanan whereas Rosh (Hil. Kelayim #3) prohibits this min hatorah. (Note that Shu’t Chasam Sofer [Yoreh Deah #282] contends that Tosafos [to Avodah Zarah 64a s.v. Rabbi Akiva] permits owning kilayim.)

WHAT ABOUT OWNING A GRAFTED TREE?

Most poskim assume that one may not own a kilayim tree just as one may not own kilayim in a vineyard. Furthermore, they contend that this halacha applies whether the tree is in Eretz Yisroel or in Chutz La’Aretz (Rosh, Hil. Kilayim Chapters 1& 3; Pischei Teshuvah, Yoreh Deah 295:2, quoting many poskim).

However, many observant Jews purchased agricultural properties that contained kilayim trees and they did not cut down those trees. Was there any justification for their actions? Many 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; cf. Aruch HaShulchan, Yoreh Deah 295:17-18). Even these opinions agree that it is preferred to follow the stricter approach and cut down the grafted part of the tree.

I THOUGHT THAT ONE MAY NOT CUT DOWN A FRUIT-BEARING TREE?

Although it is usually prohibited to chop down a tree that bears enough fruit to be profitable, this prohibition does not exist when owning the tree involves a prohibition. Furthermore, baal tashchis generally does not exist when one is trying to enhance one’s observance of mitzvos.

Nevertheless, it is preferred to have a non-Jew chop down the tree since he has no mitzvah of baal tashchis.

WHY DOES THIS MITZVAH APPLY TO NON-JEWS?

The Gemara (Sanhedrin 56b) quotes a dispute about this question. According to the Sages, the prohibition of kilayim does not apply to Bnei Noach, whereas according to Rabbi Elazar, Bnei Noach are included in some of the kilayim prohibitions but not others. Specifically, they are prohibited from mating different animal species and from grafting one species of fruit tree onto another, but they may plant different species together or in a vineyard, or wear shatnez.

Why are they included in one prohibition but not the other?

Describing the creation of plants, the Torah says:

“And G-d said, ‘The earth shall sprout forth vegetation, herbage that produces seed; Edible trees that produce fruit of their own species’ … And the earth produced vegetation, herbage that produces seed of its own species and trees that bear seed-bearing fruit of their own species.”

(Breishis 1:11-12).

Reading the pasuk carefully, we see that Hashem ordered only the trees, and not the herbaceous plants, to “produce fruit of their own species.”

Even though the herbage did in the end produce “seed of its own species,”

this was not because it was commanded. The Gemara derives from other sources that just as the earth was commanded to keep tree species distinct, so too, Adam HaRishon and all his descendants were commanded to keep these species distinct. But since the herbaceous world was never commanded to keep its species distinct, Adam was not commanded concerning this halacha. Therefore, although Jews may not plant them together, Bnei Noach may (Yerushalmi Kilayim 1:7, quoted by Gra to Yoreh Deah 295:2).

WHICH OPINION DO WE FOLLOW?

Do we rule like the Sages that a non-Jew is not included in the prohibition of harkavas ilan, or like Rabbi Elazar that he is? The Rambam (Hilchos Melachim 10:6) rules like Rabbi Elazar that a non-Jew may not graft one species of tree onto another, whereas the Ritva (Kiddushin 39a s.v. Amar Rabbi Yochanan) and the Shach (Yoreh Deah 297:3) are lenient.

Although we usually follow the Rambam’s opinion, some poskim suggest that we might be able to rule leniently if only a rabbinic prohibition is involved, such as where the grafted tree exists already and one is not watering or pruning it (Chazon Ish, Kilayim 1:1).

MS. BAKER’S SHAYLAH

I mentioned earlier that a Jew who prunes or waters a kilayim tree violates the Torah prohibition whether in Eretz Yisroel or in Chutz La’Aretz. According to most authorities, one may not even own this tree and one is required to cut down the grafted part. However since this last prohibition is only midirabbanan according to most poskim, non-Jews may allow a grafted tree to survive and may even build a fence around it since they are not required to observe Rabbinic prohibitions. (Compare, however, Shu’t Mahari Asad, Yoreh Deah #350 and Shu’t Maharsham 1:179.) However, if the tree is grafted onto other species, Ms. Baker may not water or prune it because that is halachically equivalent to planting it which is prohibited according to most opinions. In my opinion, she may also not operate her sprinkler system to irrigate her lawn if the kilayim tree will benefit as a result.

May Ms. Baker ask another non-Jew to water her tree? The poskim dispute whether a non-Jew may ask or hire someone else to violate a mitzvah. Most contend that this is permissible, because the mitzvah of lifnei iveir, causing someone else to violate a mitzvah, does not apply to non-Jews (Tosafos, Avodah Zarah 16b s.v. linachri). Other poskim (Ginas Veradim, Klal 43) prohibit this, basing themselves on earlier sources that prohibit a ben Noach from violating a transgression that logic tells us to avoid (Rabbeinu Nissim, Introduction to Shas).

MAY WE EAT THE FRUITS OF A GRAFTED TREE?

One may eat the fruits of a grafted tree (Rambam, Hil. Kilayim 1:7, based on Yerushalmi). One may even take the shoot of a grafted tree and plant it after it has been severed from the original tree.

In all the six types of kilayim mentioned above, the general criterion is to avoid the appearance of different species being intermingled.

Concerning this, Rav Hirsch (Vayikra 19:19) writes, “The Great Lawgiver of the world separates the countless numbers of His creations in all their manifold diversity, and assigns to each one of them a separate purpose and a separate form for its purpose.”

In addition, observing the laws of kilayim helps us remember how various species obeyed Hashem’s instructions to remain separate during their creation, (the source for some halachos of kilayim as we saw above). This reminds the contemplative Jew that if the plants heeded Hashem’s word during the Creation, how much more are we obligated to obey all His instructions.

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

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