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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.