Is Papaya a Tree?

Although the month of Shvat just began, since I have planned a different, very exciting article for next week, we are going to discuss an aspect of Tu Bishvat this week. For those who want to read more about the holiday themes of Tu Bishvat, you can check on RabbiKaganoff.com under the search words orlah or fourth year.

Question #1: What bracha?

What bracha do I recite before I eat papaya?

Question #2: Orlah

Does the prohibition of orlah apply to papaya?

Question #3:

Are there any kashrus concerns germane to papain?

Introduction:

Whether a particular plant is defined halachically as a tree or not influences several areas of halacha, including:

1. What bracha one recites on its fruit.

2. What bracha one recites on its fragrance.

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

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

5. What are its laws concerning kelayim, shemittah, and ma’aser, all of which are relevant only in Eretz Yisrael.

What is a tree?

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

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

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

(b) Does the fruit production of the species begin to deteriorate the year after it begins producing? In other words, a typical tree species produces quality fruit for a few years. If the species produces quality fruit for only one year, and then the quality or quantity begins to deteriorate, does it halachically have the category of a tree?

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

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

(e) Does it produce fruit for three years or less?

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

Is papaya a tree?

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

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

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

Commercial and halachic history of papaya

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

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

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

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

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

4. The papaya produces fruit within its first year.

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

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

Papaya outside Eretz Yisrael

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

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

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

Here is another difference in halacha between the two reasons.

Papain

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

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

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

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

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

While nibbling on the fruit this Tu B’Shvat, we should think through the different halachic and hashkafic ramifications that affect us. Man himself is compared to a tree (see Rashi, Bamidbar 13:20); and his responsibility to observe orlah, terumos, and maasros are intimately bound with the count that depends on Tu B’shvat. As Rav Shamshon Raphael Hirsch explains, by observing Hashem’s command to refrain from the fruits of his own property, one learns to practice the self-restraint necessary to keep all pleasure within the limits of morality.

When May I Remove a Tree? Part II

The Midrash teaches that Yaakov brought with him to Egypt the shittim trees that would be planted so that the Bnei Yisroel would later be able to leave Egypt with wood to build the Mishkan. There is no halachic problem with uprooting non-fruit-bearing trees for lumber, but there is at times a halachic problem with uprooting fruit trees for lumber or other use. So, this provides an opportunity to discuss…

Question #1: Darkening Peaches

“A peach tree is now blocking sunlight from reaching our house. May we cut down the tree?”

Question #2: Building Expansion

The Goldbergs purchased a house hoping to expand it onto its lot that contains several fruit trees. May they remove the trees to expand their house?

Question #3: For a Shul

Congregation Ohavei Torah purchased a plot of land for their new shul building, but the property contains some fruit trees. May they chop down the trees for the mitzvah of building a new Beis Hakenesses?

Question #4: For a Sukkah

“We just moved into a new house, and the only place where we can put a sukkah is in an area that is shaded by a fruit tree. May we chop down the tree in order to have a place to build our sukkah?”

In a previous article, we discussed several issues concerning when it is permitted to remove or destroy a fruit tree. The Torah teaches that when going to war one may not destroy fruit trees unless doing so serves a strategic purpose, and that in general it is forbidden to destroy fruit trees randomly. In that article, I mentioned that there is a dispute among authorities whether one may raze trees in order to build a house in their place. We also learned that the Gemara considers it dangerous to destroy fruit trees, and, according to some authorities, this is true even when there is no prohibition involved in razing the tree.

A Shady Deal

At this point, let us refer to our opening question: “A peach tree is now blocking sunlight from reaching our house. May we cut down the tree?”

This actual question was addressed to the Chavos Yair, a great seventeenth-century, central-European posek.

Based on the opinion of the Rosh (Bava Kamma 8:15),who permitted cutting down a tree in order to construct a house, the Chavos Yair allowed chopping down the offending peach tree (Shu”t Chavos Yair #195). However, the Chavos Yair rules that this is permitted only when one cannot simply remove some branches to allow the light into his house. When one can remove some branches and spare the tree, the Chavos Yair prohibits chopping down the tree since it is unnecessary to destroy the entire tree. Even though the branches will eventually grow and again block his light, the Chavos Yair does not permit chopping down the entire tree, but requires one to repeatedly trim it. Thus, although he accepts the Rosh’s ruling permitting removing a tree for the sake of a dwelling, the Chavos Yair notes that this is permitted only when one cannot have the house and eat the fruits, too.

Expanding Living Space

The Chavos Yair further rules that the Rosh,who permitted chopping down a tree to allow construction on its place, only permitted this for an essential need of the house, and not merely to make the house nicer, such as to widen his yard or to provide a place to relax.

At this point, we can probably answer another of our opening questions. The Goldbergs purchased a house hoping to expand it onto its lot that contains several fruit trees. May they remove the trees to expand their house?

Even according to the Rosh, they may remove the trees only to provide something essential for the house. Thus, if the need is essential, this heter will apply. (However, we will soon share a different possible solution.)

Some Are Stricter

The Chavos Yair follows the Rosh’s approach and permits removing a fruit tree if there is no other way to build a house.However, not all later authorities are this lenient. When asked this exact question — “May one cut down a tree to construct a house?” — the Netziv,one of the leading authorities of nineteenth-century Lithuania, was not comfortable with relying on the opinion of the Rosh. Rather, he concluded that there are early authorities who disagree with the Rosh and permit razing a fruit tree only in the three situations that the Gemara mentions: When the tree is more valuable as lumber, when it is producing almost no fruit, or when it is affecting the growth of other fruit trees. In the first two instances, it is no longer considered a fruit tree. The Netziv (Shu”t Meisheiv Davar 2:56) provides two different reasons why, if it is still considered a fruit tree, one cannot remove it.

(1) One may chop down a fruit tree only when it is damaging other fruit trees.

(2) Chopping down a fruit tree is permitted only when removing it provides immediate benefit. However, when one clears a tree to make room for construction, there is no immediate benefit. The benefit is not realized until one builds the house — which does not take place until later,and we do not see from the Gemara that this is permitted.

Following this latter approach, it is prohibited to destroy older trees and replace them with new ones, and halacha-abiding fruit growers must wait until their fruit trees are hardly productive before replacing them with new saplings.

At this point, I refer back to the next of our original questions: 

“Congregation Ohavei Torah purchased a plot of land for their new shul building, but the property contains some fruit trees. May they chop down the trees for the mitzvah of building a new Beis Hakenesses?”

What About for Temporary Use?

This case is fairly similar to an actual shaylah that is discussed by the Yaavetz (She’eilas Yaavetz 1:76), a prominent18th century posek in Germany. A community is renting a house from a non-Jew for their shul. The number of congregants is now, thank G-d, exceeding the size of the shul building, and the gentile owner has allowed them to expand the building on which they still have nine more years on their lease. However, there is only one direction in which they can expand their building, and do to so would require uprooting a grape vine. The gentile owner has permitted them to rip out the vine for this purpose. The community’s question is whether expanding the shul is a valid reason to permit ripping out a grape vine, which is halachically considered a fruit tree. The question is more significant in light of the fact that the community’s benefit may be only temporary — the gentile landlord may not renew their lease when it comes up for renewal, and they may then need to look for new quarters.

The Yaavetz ruled that even the temporary use of a shul is a valid reason permitting the ripping out of the grape vine. However, because of his concern that it is dangerous to do so, he advises hiring a gentile to uproot the vine. Since the mitzvah of destroying fruit trees is not included among the mitzvos that a ben Noach must observe, the gentile is not required to observe this mitzvah and therefore it is not dangerous for him to remove it.

The Yaavetz then mentions another factor. In every instance mentioned by the earlier authorities, it was not possible to replant the tree that is being removed in a different place. The Yaavetz suggests that there is no prohibition to uproot a fruit tree if one will replant the tree elsewhere. Thus, he concludes that even when no other solution exists to permit destroying a fruit tree, one may remove it by its root and replant it elsewhere, and then use the land for whatever one chooses.

Saving the Goldbergs!

The Yaavetz’s suggestion is very welcome news to the Goldbergs. They purchased a new house hoping to expand it onto the huge lot that they have that contains several beautiful fruit trees. May they remove the trees to expand their house?

According to the Yaavetz, they may remove the trees and plant them elsewhere, and then expand their house onto the extended lot.Again, I suggest that the Goldbergs check whether this relocation of the tree can realistically be done.

There are a few concerns about relying on this ruling of the Yaavetz. First, I have been told that although the Yaavetz may have known that this can be done, the assumption among today’s experts is that a transplanted mature fruit tree will not survive. Thus, this will be considered destroying the tree,

Furthermore, even assuming that the tree can be successfully replanted, the ruling of the Yaavetz is not without its detractors. The Chasam Sofer (Yoreh Deah #102) the posek hador of early nineteenth-century central Europe, concludes that one should not rely on this idea of the Yaavetz to remove a tree when other lenient reasons do not apply. However, he does rule that even when halacha accepts that one may uproot a fruit tree, if one can replant it one may not destroy it, since the demolition of the tree is unnecessary. Thus, if a fruit tree is damaging other trees, one may destroy it only when replanting it is not an option.

Shady Mitzvah

At this point, I would like to discuss our fourth opening question:

“We just moved into a new house, and the only place where we can put a sukkah is in an area that is shaded by a fruit tree. May we chop down the tree in order to have a place to build our sukkah?”

This exact question was asked of Rav Tzvi Pesach Frank, who was the Rav of Yerushalayim for many decades until his passing in 1960. Rav Frank cites and analyzes many of the above-mentioned sources, and is inclined to be lenient, reasoning that the performance of a mitzvah cannot be considered a destructive act. He concludes that one should have a gentile remove it, but not as an agent for a Jew, although he does not explain how one accomplishes this (Shu”t Har Tzvi, Orach Chayim II #102).

Conclusion

Thus we see that there are different conclusions as to when one may destroy a fruit tree for a valid reason, and each person should ask his own rav what to do.

The Ramban explains that the reason for the mitzvah is that one should have trust in Hashem that He will assist us in vanquishing our enemies and then we will be able to use the fruit from this tree. Destroying the tree when this serves no strategic benefit means that we think we will never use it. Rather, one should feel that one will gain from this tree as soon as the enemy is vanquished. We should assume that the area and all it contains will become our property, so why destroy the tree growing there innocently? One should take care of this tree just as one would take care of a tree that is already my personal property.

Could the Fruit on My Tree Be Orlah?

Question:

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

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

  1. Is there a mitzvah of orlah in chutz la’aretz?
  2. Can a fully-grown tree possibly have a mitzvah of orlah? I thought orlah only applies to the first three years of a tree’s growth!
  3. Does orlah apply to an ornamental tree?
  4. Does the mitzvah of reva’ie apply in chutz la’aretz?

ORLAH

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

REVA’IE

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

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

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

QUESTIONABLE ORLAH

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

This leads us to our next discussion point:

FULLY GROWN ORLAH TREES

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

In fact, someone may actually be the proud owner of a mature tree whose fruit is prohibited min haTorah because of orlah. How can this happen?

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

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

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

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

HOW COMMON IS THIS?

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

According to the expert I contacted:

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

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

WHAT DO I ASK THE GARDENER?

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

According to the horticultural halachic expert I asked, the most common, and unfortunately little known, problem is not orlah but kilayim, mixing of species. We are referring to the problem of harkavas ilan, grafting of a fruit tree onto the stock of a different species, which also applies outside of Eretz Yisroel.  More information on this topic can be found on under the title “May a Non-Jew Own a Nectarine Tree? For That Matter, May a Jew?

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

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

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

III. ORLAH ON ORNAMENTAL TREES

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

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

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

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

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

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

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

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

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

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

How do we rule?

There are three opinions among the poskim:

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

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

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

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

How do we paskin?

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

CONCLUSION

Note that the Torah states: And in the fourth year, all its fruit shall be holy for praises to Hashem. Only in the fifth year may you eat its fruit – therefore, it will increase its produce for you, for I am Hashem your G-d (VaYikra 19:23- 25). We see that Hashem, Himself, promises that He will reward those who observe the laws of the first four years with abundant increase in the tree’s produce in future years. May we soon see the day when we can bring our reva’ie and eat it betaharah within the rebuilt walls of Yerushalayim!

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

 

When May I Remove a Tree? Part I

Question #1: Expansion or Destruction?

A community has been renting a house for their shul. Though the membership has now grown, thank G-d, the building has not and is no longer large enough to accommodate their needs. Their landlord has allowed them to expand the building, even though doing so will require removing a fruit tree. May they expand the shul at the expense of the tree?

Question #2: Shady Mitzvah

We just moved into a new house, and the only place for a sukkah is shaded by fruit trees. May we level the trees in order to build our sukkah?

Question #3: Darkening Peaches

A peach tree that grew on its own is now blocking the light from entering our house. May we cut down the tree?

Question #4: George and the Cherry Tree

If cherry wood prices had spiked, would George Washington* have been permitted to chop down the cherry tree for its valuable lumber?

(*Please note: George Washington did not ask me a shaylah about chopping down the cherry tree. The other shaylos mentioned are all actual cases. With the exception of George, all names have been changed to protect individuals’ privacy. Since George was not Jewish, he was not required to observe this mitzvah.)

Answer:

In this week’s parsha, the Torah teaches:

When you lay siege to a city for many days to wage war against it in order to capture it, do not destroy its trees by wielding an axe against them, because from them you shall eat, and for this reason you should not cut them down. For, is a tree of the field a man, that you are besieging it? Rather, a tree that you know will not produce food – it you may destroy and cut down, and with it build a battlement against the city that is waging war against you, until you conquer it (Devorim 20:19-20).

The Ramban explains that the Torah is discussing a very specific situation, in which the Jewish army needs to construct an earthwork to attack the enemy city, and has available both trees that are producing fruit and others that are not. The Torah prohibits razing the fruit trees, since one has the option of using only those trees that do not produce fruit. However, should obliterating the fruit trees be helpful militarily, one may destroy them (Ramban Commentary ad loc., and in his notes at the end of Sefer HaMitzvos, “Mitzvas Asei #6 that the Rav omitted”).

Use of Fruit Trees in War

Several possible scenarios exist in which razing fruit trees has battlefield benefit, and in all of these situations one may destroy the trees. For example, if there are not enough non-fruit trees available to build the earthwork or when the enemy might use the fruit trees either as cover, for wood or for food; in these cases, one may raze the fruit trees. What the Torah is banning is a scorched-earth policy of destroying everything around the city, simply to wreak devastation (Ramban Commentary, ad loc.).

Peach or Teakwood?

For this reason, some rule that if a non-fruit tree is valuable for use in furniture, one may spare that tree, even though as a result one will need to chop down fruit trees for the fortifications (Shu’t Chasam Sofer, Yoreh Deah #102, quoting Shitah Mekubetzes in the name of the Geonim). Thus, one could raze a fruit tree and use it for building the rampart and spare a teak tree for a commercially beneficial use.

Indirect Destruction

Looking back at the Torah’s verse that I quoted above, I would like to call attention to a redundancy: Do not destroy its trees by wielding an axe against it… you should not cut it down. The Torah appears to be stating the same thing twice. What additional lesson is the Torah teaching by repeating the command?

Some authorities, indeed, explain that there are two different negative commandments here (Baal Halachos Gedolos). The Sifrei explains that, with its seemingly redundant words, the Torah teaches that it is even prohibited to destroy the tree indirectly, such as by blocking its water source (see Lechem Mishneh, Hilchos Melachim 6:8).

In Peace Time

Although the Torah explicitly discusses razing trees in wartime, this prohibition applies equally in peaceful times. While comparing destroying trees to injuring oneself, the Mishnah states: Someone who cuts down his trees, although it is prohibited for him to do so, is not obligated to pay (Bava Kamma 90b). In its commentary on this Mishnah, the Gemara records the following discussion: Rav said: “One may not chop down an aging date palm, as long as it is still carrying a kav-weight of dates…” Ravina noted: “If the tree was worth more for its lumber, one may chop it down” (Bava Kamma 91b). Thus, the Mishnah teaches that one may not level a productive fruit tree, and the Gemara explains that a tree valued for its lumber and not its fruit, either because of the quality of its lumber or because of its age, is no longer considered a “fruit tree” and may be cut down.

Thus, one can explain that the Torah means: Even when you are involved in warfare, and the tendency is to destroy randomly everything in one’s path, keep in mind what fulfills your goal and what does not, and destroy only what is required. Surely, we must build a rampart, but we do not need to destroy productive fruit trees that the enemy cannot use to help him in the battle. However, just as one may destroy a fruit tree in war when there is a tactical reason to do so, one may chop it down in peacetime, when it is no longer productive. In addition to the two cases mentioned above — when it is worth more as wood, or it is not producing enough fruit to make its maintenance worthwhile — the Gemara adds a third example when one may raze a fruit tree: when it is damaging other fruit trees (Bava Kamma 91b- 92a; Rambam, Hilchos Melachim 6:8-9).

Clear for Construction

(1) The Goldbergs purchased a new house, hoping to expand it onto the huge lot that they have that contains several beautiful fruit trees. May they remove the trees to expand their house?

(2) or, the question I asked above: “A peach tree that grew on its own is now blocking the light from entering our house. May we cut down the tree?”

Beneficial Razing

May one raze a fruit tree in order to build on its location? May one raze an aging, but still productive, fruit tree to move new tree saplings to its location? Fruit farmers regularly level areas that are aging and becoming less productive in order to replant a new orchard in their place. Is this halachically permitted?

What we are asking is: Can we expand the three cases where the Gemara permitted destroying a fruit tree to other cases when it is beneficial to remove the tree?

One very early authority, the Rosh (Bava Kamma 8:15) seems to accept this approach, permitting cutting down a fruit tree to create an area on which to build a house. It seems that he understands that the Torah prohibited destroying a fruit tree only when there is no benefit from the destruction, or at least less gain than the tree is worth. Many authorities indeed rule like the Rosh and permit razing a tree when there is some resultant advantage (Taz, Yoreh Deah 115:6; Shu’t Chavos Yair #195; Shu’t Har Tzvi, Orach Chayim 2:102).  Other authorities permit this only when the house is worth more than the tree (She’eilas Yaavetz 1:76). Similarly, it would seem to me that, according to these authorities, there is a halachic basis for allowing the approach of farmers to destroy older trees and replace them with new ones.

However, other authorities dispute this conclusion, rallying evidence that other Rishonim prohibit chopping down a viable fruit tree for the sake of construction (Shu’t Beis Yaakov #140, quoted by above-mentioned Har Tzvi; Shu’t Meisheiv Davar 2:56).

A Shady Deal

Let us refer to one of our opening questions: A peach tree that grew on its own is now blocking the light from entering our house. May we cut down the tree?

This actual question was addressed to the Chavos Yair, a great 17th century Central European posek.

Based on the above-quoted Rosh, who permitted cutting down a tree in order to construct a house, the Chavos Yair allowed chopping down the offending peach tree. However, the Chavos Yair rules that this is permitted only when he cannot simply remove some branches to allow the light into his house. When one can simply remove some branches and spare the tree, the Chavos Yair prohibits chopping down the entire tree, since it is unnecessary to do so. Even though the branches will eventually grow back again and block his light, the Chavos Yair does not permit chopping down the tree, but requires one to repeatedly trim it, since it is not necessary to destroy it for the sake of the house. Thus, although he accepts the Rosh’s ruling permitting removing a tree for the sake of a dwelling, the Chavos Yair notes that this is permitted only when one cannot have the house and eat the fruits, too.

Expanding Living Space

The Chavos Yair further rules that the Rosh, who permitted chopping down a tree to have construction done on its place did so only when the construction filled an essential need for the house, and not when it was merely to make the house nicer, such as to widen the yard or to provide a place to relax.

At this point, we can probably answer the Goldbergs’ question. They purchased a new house, hoping to expand it onto the huge lot that they have that contains several beautiful fruit trees. May they remove the trees to expand their house?

Even according to the Rosh, they may remove the trees only to provide something essential for the house. Since the house was already usable, it is prohibited for them to raze the trees. (However, we will soon share with them a possible solution.)

Some are Much Stricter

The Chavos Yair follows the Rosh’s approach and permits removing a fruit tree if there is no other way to build a house. However, not all later authorities are this lenient. When asked this exact question, “May one cut down a tree to construct a house,” the Netziv, one of the leading authorities of 19th century Lithuania, was not comfortable with relying on the opinion of the Rosh and permitting it. Rather, he concluded that there are early authorities who disagree with the Rosh and permit razing a fruit tree only in the three situations that the Gemara mentions: when the tree is more valuable as lumber, when it is producing almost no fruit, or when it is affecting the growth of other fruit trees. In the first two instances, it is no longer considered a fruit tree. The Netziv provides two different reasons why, if it is still considered a fruit tree, one cannot remove it, unless it is damaging other trees.

(1) One may chop down the tree only because it is damaging other fruit trees, but for no other reason.

(2) Chopping down a fruit tree is permitted only when removing it provides immediate benefit. However, when one clears a tree to make room for construction, there is no immediate benefit when one clears away the tree. The benefit is not realized until one builds the house, which does not take place until later, and we do not see from the Gemara that this is permitted.

Following this latter approach, it is prohibited to destroy older trees and replace them with new ones, and halachically-abiding farmers must wait until the trees are hardly productive before replacing them with new saplings.

Hazardous to one’s Health

There is another reason to be concerned about chopping down fruit trees. In addition to the Torah’s prohibition, Chazal consider cutting down trees to be dangerous. To quote the Gemara, “Rabbi Chanina stated: My son Shivchas died only as punishment for cutting down a fig tree prematurely” (Bava Kamma 91b). Thus we see that cutting down a fruit tree is not only an issue of bal tashchis, but also a safety concern.

What About for Temporary Use?

A community was renting a house from a non-Jew for their shul. The number of congregants is now, thank G-d, exceeding the capacity of the shul building, and the gentile owner has allowed them to expand the building on which they still have nine more years on their lease. However, there is only one direction in which they can expand their building, and there is a grape vine growing there, which they would need to uproot to perform their expansion. The gentile owner has permitted them to rip up the vine for this purpose. The community’s question is whether expanding the shul is a valid reason to permit ripping up a grape vine, which is halachically considered a fruit tree; particularly since the community’s benefit may be only temporary, since the gentile landlord may not renew their lease, and they may then need to look for new quarters.

The Yaavetz ruled that even the temporary use of a shul is a valid reason permitting the ripping up of the grape vine. However, because of his concern that it is dangerous to do so, he advises hiring a gentile to uproot the vine. Since the mitzvah of destroying fruit trees is not included among the mitzvos that a ben Noach must observe, the gentile is not required to observe it, and therefore it is not dangerous for him to remove the vine.

The Yaavetz then mentions another factor. In every instance mentioned by the earlier authorities, the tree could not be removed and planted elsewhere. The Yaavetz suggests that there is no prohibition to uproot a fruit tree, if one will replant the tree elsewhere. Thus, he concludes that even when no other solution exists to permit destroying a fruit tree, one may remove it by its root and replant it elsewhere and then use the land for whatever one chooses.

Saving the Goldbergs!

The Yaavetz’s suggestion is very welcome news to the Goldbergs. They purchased a new house hoping to expand it onto the huge lot that they have that contains several beautiful fruit trees. May they remove the trees to expand their house?

According to the Yaavetz, they may remove the trees and plant them elsewhere, and then expand their house onto the extended lot.

This ruling of the Yaavetz is not without its detractors. The Chasam Sofer (Yoreh Deah #102) concludes that one should not rely on this idea of the Yaavetz to remove a tree when other lenient reasons do not apply. However, he does accept the Yaavetz’s rule as a stringency — that if one can replant a fruit tree it, one may not destroy it, since the demolition of the tree is unnecessary. Thus, if a fruit tree is damaging other trees, one may destroy it only when replanting it is not an option.

Shady Mitzvah

At this point, I would like to discuss one of the above-mentioned questions.

“We just moved into a new house, and the only place where we can put a sukkah is in an area which is shaded by a fruit tree. May we chop down the tree in order to have a place to build our sukkah?”

This exact question was asked of Rav Tzvi Pesach Frank, who was the rav of Yerushalayim for many decades until his passing in 1960. Rav Frank cites and analyzes many of the above-mentioned sources, and is inclined to be lenient, reasoning that the performance of a mitzvah cannot be considered a destructive act. He concludes that one should have a gentile remove it, but not as an agent for a Jew, although he does not explain how one accomplishes this (Shu’t Har Tzvi, Orach Chayim II #102).

Conclusion

Thus, we see that there are different ways of understanding when one may destroy a fruit tree for a valid reason, and each person should ask his own rav what to do in his particular circumstances.

The Ramban explains that the reason for the mitzvah is that one should have trust in Hashem that He will assist us in vanquishing our enemies, and then we will be able to use the fruit from this tree. So why destroy it? One should treat the tree as if it is already in my possession!

See part II of this article for more on this topic.