Orlah
[1] (Halacha 540)
It is stated in our parsha, parshas Kedoshim1: 'וְכִי תָבֹאוּ אֶל הָאָרֶץ וּנְטַעְתֶּם כָּל עֵץ מַאֲכָל וַעֲרַלְתֶּם עָרְלָתוֹ אֶת פִּרְיוֹ שָׁלֹשׁ שָׁנִים יִהְיֶה לָכֶם עֲרֵלִים לֹא יֵאָכֵל' ("And when you come into the land and plant any tree for food, you shall treat its fruit as forbidden; for three years it shall be forbidden to you, it shall not be eaten").
Question: With regard to the prohibition of orlah the Torah says: 'ונטעתם' ("and you shall plant"), that is, the Jewish people — what is the halacha of the trees that were planted in the land before the Jewish people entered it, did the din of orlah apply to them?
Answer: The Mishnah in maseches Orlah2 says: 'When our forefathers came to the land, whatever they found already planted is exempt; what they planted, even though they had not conquered, is obligated'.
And it is explained in the Sifra, Kedoshim3, brought in the Yerushalmi4: 'כי תבואו ונטעתם — this excludes what non-Jews planted before they came into the land. Or perhaps I should exclude also what non-Jews planted once they had come into the land? The verse therefore says כל עץ. From here they said: whatever our forefathers found already planted when they came to the land is exempt; what they planted, even though they had not conquered, is obligated'.
Accordingly, we have seen that the Torah permitted all the trees that the non-Jews planted before the Jewish people entered Eretz Yisroel.
★ ★ ★
Question: What is the halacha nowadays when a non-Jew plants a tree, and the tree remains in the non-Jew's ownership — do the halachos of orlah apply to it?
Answer: It is stated in the Mishnah there: 'A non-Jew who planted, and a robber who planted, and one who plants in a boat, and one that comes up of itself, are obligated in orlah'.
And in the Tosefta5: 'But orlah and kilei hakerem are the same for a non-Jew in Eretz Yisroel, in Syria, and in chutz la'aretz'.
And in accordance with the plain meaning of the Mishnah wrote virtually all of the Geonim and the Rishonim, as Rav Netronai Gaon wrote6: 'And as to what you asked: [a non-Jew] who was selling fruit in the market and said, "These fruits are orlah, they are of azeika, they are neta revai" — he has said nothing, for he intended only to enhance his wares (Yevamos 122a) — but were it not so, we would be concerned; that is to say, orlah applies to a non-Jew's planting, and so is the halacha. So they showed us from Heaven: that orlah applies to a non-Jew's planting, for so we learned: whatever our forefathers found already planted when they came to the land is exempt; what they planted, even though they had not conquered, is obligated; one who plants for the public is obligated, and R' Yehudah exempts; one who plants in the public domain, and a robber who planted, and a non-Jew who planted, and one who plants in a boat, and one that comes up of itself, are obligated in orlah. And again the Sages taught: כי תבואו ונטעתם — this excludes what a non-Jew planted before Yisroel came into the land. Or perhaps I should exclude what non-Jews planted once Yisroel had come into the land? The verse therefore says כל עץ — from here we have heard that orlah applies to a non-Jew's planting'.
And so wrote Rabbeinu Shimshon7: 'And the entire Mishnah proves that orlah applies to that of non-Jews .. and it is explicitly taught in the first perek: a non-Jew who planted is obligated in orlah'.
And the Rashba wrote8: 'From here we have explicit proof for what we said, and the words of Rabbeinu Shimshon z"l, who is a preeminent authority, stand firm; and so too the great Rishonim9 נ"נ agreed in their responsa that orlah applies to that of non-Jews'.
And indeed we find that there are those who wrote that orlah does not apply to a non-Jew's planting, as written in the Shita Lo Noda LeMi10 in the name of Rabbeinu Tam: 'And from the Yerushalmi that we cited there is a difficulty against Rabbeinu Tam z"l, who used to say that orlah applies only to a Jew's planting and not to a non-Jew's planting in a non-Jew's field, as it is written ונטעתם, and one may answer that [orlah] does apply to non-Jews' plantings in a Jew's field'.
But Tosafos11, and further Rishonim, wrote in his name the opposite12: 'Rabbeinu Tam laboured to bring proofs that kilayim and orlah apply to that of a non-Jew .. we learn from this at any rate that orlah .. applies to that of a non-Jew ..'.
And the Rambam too, in his Peirush HaMishnayos13, wrote: 'A non-Jew who planted — that is to say, that he planted for a Jew, or that the non-Jew planted for himself and a Jew afterwards bought it from him — this is obligated in orlah'.
But in the Mishneh Torah he retracted14, for he wrote in Hilchos Maaser Sheni V'Neta Revai15: 'And a non-Jew who planted, whether for a Jew or for himself, and a robber who planted, are obligated in orlah and in revai'.
And the Radbaz wrote16: 'And I have written this even though it is a plain matter, so that it should not enter anyone's mind to rely on what the Rav wrote in his Peirush HaMishnayos to permit a doubt of orlah in Eretz Yisroel — since the certain case itself is a dispute — or to make it a support for a ruling; for what he wrote z"l in his Peirush HaMishnayos is not to be relied upon at all, and a doubt of orlah in Eretz Yisroel is forbidden even in what a non-Jew planted for himself'.
And as halacha the Mechaber wrote17: 'Orlah applies in every place and at every time, whether that of a non-Jew or that of a Jew'.
Accordingly, as halacha the din of orlah applies also to plantings of non-Jews that they planted in their own ground.
In the coming halachos we will see further details in this, and with regard to orlah in chutz la'aretz.
Notes:
1 ch. 19, pasuk 23 ↩
2 ch. 1, mishnah 2 ↩
3 parshah 3, ch. 5, os 2 ↩
4 Orlah ch. 1, halacha 2 ↩
5 Terumos ch. 2, halacha 13 ↩
6 Brody – Ofek, Yoreh Deah siman 271 ↩
7 Peirush HaMishnayos ch. 3, mishnah 9 ↩
8 vol. 5, siman 56 ↩
9 And see the Beis Yosef siman 294, d"h orlah, [citing] more Rishonim who ruled thus, and see also Rachamim LeChaim on the Rashba there, os 8, who cited many Rishonim and Acharonim. ↩
10 Kiddushin 37a ↩
11 Avodah Zarah 63b ↩
12 See what he wrote in Rachamim LeChaim there, os 200. ↩
13 And see also the commentary of the Bartenura there: 'And the non-Jew who planted — in the field of a Jew.' ↩
14 as the Kesef Mishneh wrote there, halacha 5: 'And as to what he wrote, "a non-Jew who planted, whether for a Jew or for himself" — in the Peirush HaMishnayos Rabbeinu wrote that it is specifically when he planted for a Jew, but here he retracted, because in several places it is implied that when a non-Jew plants for himself it is forbidden on account of orlah, as ה"ג wrote', and so the Beis Yosef wrote there: 'and even though in the Peirush HaMishnayos he wrote otherwise, one may rely only on what he wrote in the compilation.' And also regarding the words of the Bartenura, see his words in Orlah ch. 3, mishnah 9. ↩
15 ch. 10, halacha 5 ↩
16 vol. 1, siman 580 ↩
17 Shulchan Aruch Yoreh Deah siman 294, se'if 8 ↩
[2] (Halacha 541)
In the previous halacha we learned that trees planted by a non-Jew in his own field are also forbidden with the prohibition of orlah.
Question: Does the prohibition of orlah apply in chutz la'aretz, and is there a leniency in this where it is a non-Jew's tree in a non-Jew's ground?
Answer: It is stated in the Mishnah in maseches Kiddushin1: 'Any mitzvah that is dependent on the land — applies only in the land, and one that is not dependent on the land — applies both in the land and in chutz la'aretz, except for orlah and kilayim ..'.
That is to say, although orlah is a mitzvah dependent on the land, even so it applies also in chutz la'aretz.
And further on in the Gemara2: 'It is taught in a braisa, R' Shimon ben Yochai says: three mitzvos were the Jewish people commanded upon their entry into the land [= chodosh, orlah and kilayim], and they apply both in the land and in chutz la'aretz, and it stands to reason that they should apply: if chodosh — whose prohibition is not an everlasting prohibition, and whose prohibition is not a prohibition of benefit, and whose prohibition has a time of permission — applies both in the land and in chutz la'aretz, kilayim — whose prohibition is an everlasting prohibition, and whose prohibition is a prohibition of benefit, and whose prohibition has no time of permission — is it not right that they should apply both in the land and in chutz la'aretz; and the same law applies to orlah on two counts [= orlah too comes by this kal vachomer with two proofs, even though the third is not present in it, for its prohibition is not an everlasting prohibition; nevertheless it is a prohibition of benefit, and it has no permission within its days of prohibition. Rashi]. R' Elazar b'R' Shimon says: every mitzvah with which the Jewish people were commanded before their entry into the land — applies both in the land and in chutz la'aretz; after their entry into the land — applies only in the land [= he disagrees with his father and holds that chodosh does not apply in chutz la'aretz, and that orlah and kilayim are only a halacha or the words of the Sofrim, as below]'.
And further on in the Gemara3 the Amoraim disagreed as to what the obligation of orlah in chutz la'aretz is: 'We learned there: 'Orlah — a halacha .. What is 'a halacha'? Rav Yehudah said in the name of Shmuel: a practice of the province [= they instituted it upon themselves in chutz la'aretz. Rashi], Ulla said in the name of R' Yochanan: a halacha l'Moshe miSinai'.
And the Beis Yosef wrote4 that the Rishonim ruled like R' Yochanan, and these are his words: 'At the end of the first perek of Kiddushin R' Yochanan said that orlah in chutz la'aretz is a halacha l'Moshe miSinai .. and although Shmuel disagrees there and says that it is forbidden only by the practices of the province, the halacha is like R' Yochanan, and so ruled the Rambam5, and the Rosh6, and so it appears to be the opinion of the Rif7, who wrote the Mishnah without qualification, which teaches that orlah is a halacha l'Moshe miSinai — that is the implication'.
And so wrote the Mechaber8: 'Orlah applies in every place and at every time, whether that of a non-Jew or that of a Jew, except that with that of Eretz Yisroel it is from the Torah, and in chutz la'aretz it is a halacha l'Moshe miSinai'9.
However, with regard to produce of a non-Jew in a non-Jew's ground in chutz la'aretz, the Chasam Sofer10 was in doubt whether this too is by force of the halacha l'Moshe miSinai or whether it is only rabbinic, and he inclined to say that it is rabbinic, but he did not rule leniently in practice, and these are his words: 'But whether it is forbidden from the Torah by the halacha, or only rabbinically, has not been clarified .. In any case, from reasoning I say that according to the opinion that a non-Jew's acquisition in Eretz Yisroel does not take effect to remove it from its obligation, and if so orlah, which is written in the Torah of Moshe, was said to Yisroel, for a non-Jew has no relevance in Eretz Yisroel at all. If so, the halacha that applies in chutz la'aretz was stated without qualification, and they did not add to what is written in the verse, and it refers to a Jew and not to that of non-Jews. And we gain further, that if there should be found anywhere the implication of a braisa that they apply from the Torah to that of non-Jews, we may say that it is R' Meir, who holds that a non-Jew's acquisition does take effect .. and according to him orlah from the Torah was said also concerning a non-Jew in Eretz Yisroel, and the same for the halacha that applies in chutz la'aretz. And the halacha is not like Rabbeinu Chananel in this, and if so orlah of a non-Jew in chutz la'aretz is rabbinic. And there is what to say in this in Kiddushin 39a .. rather it must be that orlah of a non-Jew in chutz la'aretz is rabbinic .. And it appears to me that the words of the Rambam in Hilchos Ma'achalos Asuros 10:11 are from the Mishnah at the end of Orlah mentioned above, and his words in halacha 12 are from this braisa, and this is clear in my humble opinion; and he is not speaking of a non-Jew but simply of that of a Jew, and he asks well: how could the Torah be lenient in a matter of Torah law, and he concludes that so was the halacha stated. It is explained from this that orlah of a non-Jew in chutz la'aretz is merely rabbinic; and nevertheless, since we are only drawing comparisons, we will not act on it, since I have not found this explicitly in the early authorities, and on the contrary, from the fact that Tosafos and all the Poskim raised a difficulty from wine that is made at a non-Jew's, that most of them layer their vines, which implies that at least a minority do not layer — and if so, what is the difficulty? Let us say that one concealed one saves them all, as is written in Hagahas Shulchan Aruch, Yoreh Deah 114:10 .. rather it must be that it implies somewhat that he holds that in that of non-Jews in chutz la'aretz too it is forbidden by the halacha ..'.
Accordingly, in practice it is a halacha l'Moshe miSinai that the prohibition of orlah applies also in chutz la'aretz, and also to produce of a non-Jew in a non-Jew's ground.
Except that there is a difference between the prohibition of orlah as it applies in Eretz Yisroel and in chutz la'aretz, as we will see in the coming halachos.
Notes:
1 Kiddushin 36b ↩
2 Kiddushin 38a ↩
3 Kiddushin 38b ↩
4 Yoreh Deah siman 294 ↩
5 Hilchos Ma'achalos Asuros ch. 10, halacha 10 ↩
6 Hilchos Orlah, end of siman 1 ↩
7 Kiddushin 15a ↩
8 Shulchan Aruch Yoreh Deah siman 294, se'if 8 ↩
9 And the Aruch HaShulchan wrote, Yoreh Deah siman 294, se'if 5: *'And it is known that there is no difference at all between the mitzvah as written in the Torah and as it was said to Moshe at Sinai — both of them are Torah law* — except that with orlah there is a leniency, that a doubt of orlah in chutz la'aretz is permitted, and thus the halacha l'Moshe miSinai was stated explicitly, that only certain orlah is forbidden.' ↩
10 Shu"t vol. 2, Yoreh Deah siman 286, brought in the Pischei Teshuvah, Shulchan Aruch Yoreh Deah siman 294, s"k 7 ↩
[3] (Halacha 542)
Question: Is there a difference between the halachos of orlah in Eretz Yisroel and the halachos of orlah in chutz la'aretz? (1)
Answer: We find several differences in halacha between Eretz Yisroel and chutz la'aretz, as follows:
א. A doubt of orlah: The Mishnah in maseches Orlah1 says: 'A doubt of orlah in Eretz Yisroel is forbidden, in Syria it is permitted, and in chutz la'aretz one goes down and buys, provided that he does not see him gathering'.
And from this Mishnah the Gemara in Kiddushin2 raises a difficulty against the words of R' Yochanan (and so is the halacha, as explained in the previous halacha) that the prohibition of orlah is a halacha l'Moshe miSinai: 'R' Asi said in the name of R' Yochanan: orlah in chutz la'aretz is a halacha l'Moshe miSinai. R' Zeira said to R' Asi: but it is taught in a braisa: a doubt of orlah in the land — forbidden; in Syria — permitted; (in chutz la'aretz — one goes down and gathers)3! He was astonished for a moment; he said to him: say that so it was stated: a doubt of it is permitted4, and a certainty of it is forbidden'.
And the Rambam wrote5: 'To what does this apply? To one who plants in Eretz Yisroel, as it is stated כי תבאו אל הארץ וגו', but the prohibition of orlah in chutz la'aretz is a halacha l'Moshe miSinai, that certain orlah in chutz la'aretz is forbidden, and a doubt of it is permitted'.
And so wrote the Mechaber as halacha6: 'A doubt of orlah in Eretz Yisroel is forbidden. And in chutz la'aretz, it is permitted'.
Question: What is called a doubt of orlah that is permitted in chutz la'aretz?
Answer: The above Mishnah from maseches Orlah was explained by Rashi in Kiddushin7, that a doubt of orlah means: 'it is doubtful whether three years have passed over it8, or alternatively an orchard that has in it orlah saplings and other saplings ..'. And 'goes down and gathers' means: 'a Jew goes down and buys from the non-Jew who gathers from an orchard that has in it young and old saplings, and the Jew knows that he goes in there and gathers at the outset. Provided that he does not see him — that is, the Jew, when he is gathering from the orlah'.
The Gemara in Kiddushin there brought this Mishnah, and discussed whether there is a distinction between orlah and kilayim, for with kilayim it is stated 'he goes down and gathers, provided that he does not gather by hand', and Rashi explained: he goes down — the non-Jew, and gathers from the actual kilayim and sells to the chaver. Provided that he does not gather — the chaver himself, by hand ..'.
And the Gemara concludes: '.. Mar the son of Ravna taught it leniently: both this and that — he goes down and gathers, provided that he does not gather by hand'. That is to say, orlah too has the same din as kilayim, that in chutz la'aretz it is forbidden only where he gathers by hand.
And the commentators disagreed as to whether the conclusion of the Gemara's words, which equates kilayim with orlah leniently, is only according to Shmuel, who holds that orlah is from the practices of the province and not a halacha l'Moshe miSinai — and if so, according to this, as halacha, where we rule like R' Yochanan that it is a halacha l'Moshe miSinai, this leniency does not apply — or whether we should say that it is agreed by all, since although orlah in chutz la'aretz is a halacha l'Moshe miSinai, part of that halacha l'Moshe miSinai is this very din, that it is permitted to gather, provided that he does not gather by hand.
For the Rambam9 wrote: 'How so? There was a vineyard of orlah and grapes were being sold outside it; there was a vegetable sown within it and a vegetable was being sold outside it — perhaps this one is from it, perhaps from another. In Syria it is permitted, and in chutz la'aretz, even if he saw the grapes coming out of a vineyard of orlah, or a vegetable coming out of the vineyard, he may buy from them, provided that he does not see him harvesting from the orlah or gathering the vegetable by hand'.
That is to say, according to the words of the Rambam10, even in a vineyard that is entirely orlah it is permitted to buy from what is sold outside it11.
But the Tur12 wrote: 'Therefore in Eretz Yisroel a doubt of it is forbidden, and in chutz la'aretz a doubt of it is permitted. How so? A vineyard that has in it orlah saplings, and grapes are being sold outside it — even if he knows that they were brought from that vineyard they are permitted, only that he should not see that they were harvested from orlah saplings'.
And the Beis Yosef wrote13: according to R' Yochanan, who said that it is a halacha l'Moshe miSinai, and we rule like him, it is permitted only where one goes down and buys, and not where one goes down and gathers, and so are the words of Rabbeinu, who wrote only that he should not see that they were harvested from orlah saplings, and that is as we learned in the Mishnah, 'he goes down and buys, provided that he does not see him gathering'; and he is speaking of a vineyard that has in it orlah saplings and permitted saplings, as is precise from the language he used, 'a vineyard that has in it orlah saplings'. And what he wrote, 'and it goes without saying, a vineyard that is a doubt of orlah' — that is to say that until now he was speaking of a vineyard that has in it permitted saplings and saplings that are certainly orlah, and he says that it is permitted; and now he says that it goes without saying in a vineyard that has in it no sapling of certain orlah, but rather all the saplings in it are a doubt whether three years have passed over them or have not passed'.
And as halacha the Mechaber wrote14: 'How so? A vineyard that has in it orlah saplings, and grapes are being sold outside it — in Eretz Yisroel, it is forbidden; and in Syria, it is permitted, provided that he does not know that they were brought from that vineyard; and in chutz la'aretz, it is permitted, even if he knows that they were brought from that vineyard, only that he should not see that they were harvested from orlah saplings', 'a vineyard that is a doubt of orlah — in Eretz Yisroel it is forbidden, in Syria it is permitted, and it goes without saying in chutz la'aretz'.
And from the words of the Mechaber it is understood that it is permitted only in a vineyard that has in it also saplings that are not orlah, [and not like the words of the Rambam, that the entire vineyard is orlah]. And as the Shach wrote15: 'that has in it orlah saplings — and permitted saplings as well'.
Accordingly, as halacha, a vineyard that is entirely orlah — it is forbidden to buy from a non-Jew who sells from this vineyard, and it is not considered a doubt of orlah in chutz la'aretz. It is permitted only when it also has in it saplings that are not orlah; and likewise a vineyard that is a doubt of orlah is permitted16.
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Notes:
1 ch. 3, mishnah 9 ↩
2 Kiddushin 39a ↩
3 See the Hagahos Maharsha"l, and the Yad David on the sugya there ↩
4 And see the Beis Yosef siman 294, that its doubt is not permitted because it is a halacha l'Moshe miSinai, for 'other halachos l'Moshe miSinai, their doubt is likewise forbidden,' and therefore he raises a difficulty on the Tur, who wrote: 'In Eretz Yisroel it is from the Torah, and in chutz la'aretz it is a halacha l'Moshe miSinai; therefore in Eretz Yisroel a doubt of it is forbidden, and in chutz la'aretz a doubt of it is permitted.' But the Taz explains, siman 294, s"k 13: 'In Eretz Yisroel it is stated in the verse, and in chutz la'aretz it is by halacha l'Moshe miSinai; rather, certainly through this He, may He be blessed, revealed to us that there is a distinction in the law here, namely that in chutz la'aretz it is lenient regarding a doubt.' And see Shu"t Chavos Yair siman 192, at its end. Be'er Yaakov (Berlin) siman 294 ↩
5 Hilchos Ma'achalos Asuros ch. 10, halacha 10, and see also halacha 11 ↩
6 siman 294, se'if 9 ↩
7 Kiddushin 38b ↩
8 See the Yad David. Shu"t Shivas Tziyon siman 49, d"h אך. And see also the Beis Yosef brought below, and the Chochmas Shlomo on the Shulchan Aruch ↩
9 Hilchos Ma'achalos Asuros ch. 10, halacha 11 ↩
10 And so the Mordechai wrote, Kiddushin, remez 502, brought in the Darchei Moshe siman 294, os 3: 'and in the Mordechai .. and such is also the opinion of the Rambam .. and the Beis Yosef elaborated in explaining his words; but from the words of Rabbeinu and the Rosh in the halachos of orlah (siman 1) it does not appear so — that it is permitted to buy only in a doubt of orlah, and even there it is forbidden to gather by hand.' ↩
11 And the Ran explained, 15b of the Rif's pagination, that the source of the matter is from the words of Mar the son of Ravna, and he holds that this is halacha even according to the opinion that the prohibition of orlah in chutz la'aretz is from a halacha l'Moshe miSinai; but see the Beis Yosef, who elaborated in explaining it differently ↩
12 siman 294 ↩
13 there, d"h ומ"ש ובחוצה ↩
14 siman 294, se'if 9-10 ↩
15 s"k 20 ↩
16 Except that they disagreed as to whether in a doubt of orlah it is permitted to gather by hand; see what the Beis Yosef wrote, d"h והרמב"ם: 'and it implies that when the entire vineyard is a doubt whether three years have passed over it, it is permitted to gather by hand.' But the Darchei Moshe there, os 3, wrote: 'a doubt of orlah — even there it is forbidden to gather by hand.' And see the Shach, s"k 21, and the commentary of the Gaon R' Eliyahu, os 34. And regarding what is called a vineyard that is a doubt, see what is cited in note 8 ↩
[4] (Halacha 543)
Question: May one give orlah of chutz la'aretz to others who do not know that it is orlah? (2)
Answer: The Gemara in maseches Kiddushin1 says: '.. Levi said to Shmuel: Aryoch, supply me in a manner of doubt [= gather it not in my presence, so that it should be a doubt for me. Rashi2] and I will eat. Rav Avya and Rabbah bar Rav Chanan would supply one another in a manner of doubt'.
The Rishonim disagree as to whether this leniency to feed others applies also according to R' Yochanan, who holds that orlah in chutz la'aretz is a halacha l'Moshe miSinai, or only according to the view of Shmuel, who said that orlah in chutz la'aretz is from hilchos medinah, as follows:
The Ran wrote3: 'And there are those who learned from here that what we say, that a doubt in a Torah matter is treated stringently, is from the Torah and not from the words of the Sofrim, for we say here that a halacha was needed in order to permit a doubt. But there is no proof from this, for here it was necessary to permit whatever any doubt in the world arose about, even though it would not be sufficient to permit elsewhere; for on this account we say4 that whoever is lenient in the Land, the halacha is like him in chutz la'aretz, and even an individual against many, for every doubt is permitted, and even one close to a certainty, and even to supply one another in a manner of doubt is likewise permitted - whereas with the other prohibitions he certainly transgresses on account of lifnei iver'.
That is to say, that although it is forbidden by a halacha l'Moshe miSinai, nevertheless it is permitted to give to others5, and there is in this nothing of lifnei iver, as the Ran explains there: 'And we need not say that since he equates orlah with kilayim he holds like Shmuel, who said hilchos medinah; for it is possible that just as we say that the halacha was stated that its doubt is permitted, so too it was stated that whatever he does not see him gathering is permitted, in the manner of the explanations that we have written'6.
And so too the Tosafos Rid wrote7: 'It taught "orlah" without qualification, and even in chutz la'aretz, where it is forbidden only in eating and not in benefit, as we say in the first perek of Kiddushin, that it is a halacha l'Moshe miSinai that what is seen is forbidden and its doubt is permitted, and as we say there, "supply me in a manner of doubt and I will eat". Therefore they do not stand to be burned, for he may sell it to his fellow and does not inform him that it is orlah, and it is permitted to him; and therefore he explains the reason as being that there is no permit of eating in it'. We see that he permitted feeding others. [Except that he held that with respect to the person himself, he has no permit of eating in it.]
But his grandson, the Riaz8, disagreed with him regarding the detail of an esrog of orlah in chutz la'aretz, that this is indeed called having a permit of eating in it, since he may feed others: 'And my grandfather, my teacher, invalidates even orlah of chutz la'aretz; but it appears to me that orlah of chutz la'aretz has a permit of eating in it, for he may l'chatchilah feed it to his fellow who does not recognise it; and they said that an esrog of orlah is invalid only with orlah of Eretz Yisroel ..'.
But in the Shitah Lo Noda L'Mi9 he disagreed with this and wrote: '"Aryoch, supply me in a manner of doubt and I will eat". There are those who say: do not inform me that they are orlah fruit, so that it should be a doubt for me. And this is not correct, for if the certain is forbidden, how could Shmuel supply him [Levi] in a manner of doubt, since Shmuel knew that it was orlah? And there are those who say: feed me from orlah fruit - for he holds that both this one and that one may go down and gather, provided that he does not gather by hand; and Shmuel is consistent with his own view, that he said hilchos medinah, but according to R' Yochanan, who said halacha l'Moshe miSinai, it is certainly forbidden, as R' Zeira said to R' Assi further on: the certain is forbidden, the doubt is permitted - and he did not say that gathering by hand is forbidden and not by hand is permitted'.
The Rambam and the Tur too did not mention this law of giving to others at all, and the Beis Yosef wrote10: 'And one may question the Rambam and Rabbeinu, why they did not write that even one who knows of fruit that it is orlah may supply it to his fellow in a manner of doubt and feed him, as Levi said to Shmuel, and as Rav Avya and Rabbah bar bar Chanah did. It may be said that they hold that those Rabbanan hold like Shmuel, who said that orlah in chutz la'aretz is hilchos medinah; but according to R' Yochanan, who holds that it is a halacha l'Moshe miSinai, it is forbidden'.
And on this basis the Mechaber in the Shulchan Aruch, who ruled as halacha that the prohibition is a halacha l'Moshe miSinai, did not copy the permit to feed others.
Except that we find that they relied on the view of those who permit with regard to an esrog, as the Magen Avraham wrote11: 'And orlah of chutz la'aretz is valid, for he may l'chatchilah feed it to his fellow who does not recognise it (Shiltei Giborim); and so too the view of the poskim who omitted it implies. But according to what the Rav Beis Yosef wrote in Yoreh Deah siman 294, that it is forbidden to feed it to his fellow, then it is invalid. Nevertheless it appears to me that it should be validated, since the plain sense of the Talmud implies that he may feed it to his fellow, one may rely upon it with regard to an esrog'.
And so too the Alter Rebbe wrote12: 'And an esrog of orlah of chutz la'aretz, although it is forbidden in eating, nevertheless, since there are those who permit feeding orlah of chutz la'aretz to one's fellow who does not know that it is orlah, and if so it is fit for eating - and although the halacha is not like their words, as is written in Yoreh Deah siman 294, nevertheless one may rely on their words to validate the esrog for the mitzvah13'.
Accordingly, in practice there is no permit to feed one's fellow orlah of chutz la'aretz, even in a case where his fellow does not see from where he brought it; however, with regard to an esrog of orlah from chutz la'aretz, they rely on the lenient view.
--------------
Notes:
1 Kiddushin 39a ↩
2 Indeed there are those who explained the Gemara differently, as is explained in Tosafos Ri HaZaken ↩
3 Kiddushin 15b of the Rif's pagination ↩
4 Berachos 36a ↩
5 And see the Shev Shematsa, shematsa 1, ch. 2, who raised the difficulty: 'Indeed I have a difficulty with this, that they supply one another in doubt, for since their certain status is forbidden in benefit, then when one gives to his fellow, he the giver knows that it is orlah, which is forbidden to derive benefit from .. and if so, granted that his fellow, who does not know of it, it is permitted to him; but the giver, who knows for certain that it is orlah, how does he derive benefit from it? And this requires further study.' But this question depends on the dispute as to whether there is a prohibition of benefit in orlah of chutz la'aretz, and see also in the Tosafos Rid. This will be explained, please G-d, in a separate halacha ↩
6 And see Shaarei Yosher, part 1, Shaar HaSefeikos, ch. 6: 'For according to their explanation the halacha was thus stated, that the law of orlah is conditional upon the eater's knowledge — that at a time when certain knowledge is hidden, it is then like something actually permitted; and for this reason it is permitted to feed one's fellow certain orlah that the eater does not know of, and there is no lifnei iver in this, for he does not cause him to stumble at all, since he feeds him something actually permitted.' ↩
7 Succah 35a ↩
8 brought in the Shiltei Giborim, Succah 17a of the Rif's pagination ↩
9 Kiddushin 39a ↩
10 Yoreh Deah siman 294 ↩
11 siman 649, s"k 20 ↩
12 Orach Chaim siman 649, se'if 15 ↩
13 And so ruled the Eliyahu Rabbah, s"k 14, and the Mishnah Berurah, s"k 45. (Though indeed there are those who disagreed and forbade it; see Teshuvah MeAhavah, Yoreh Deah siman 401, Shu"t Avnei Nezer siman 489, and more.) ↩
[5] (Halacha 544)
The prohibition of benefit (1)
Question: What is the law of orlah fruit?
Answer: The Mishnah in maseches Kiddushin1 says: 'One who betroths with orlah .. she is not betrothed'. And the Gemara explains: 'With regard to orlah, from where do we know it? For it was taught in a beraisa: ערלים לא יאכל - I have only the prohibition of eating; from where do I know benefit, that he may not benefit from it, and may not dye with it, and may not kindle a lamp with it? The verse teaches: וערלתם (את) ערלתו - to include them all2. With regard to kilei hakerem, from where do we know it? Chizkiyah said, the verse says: פן תקדש - פן תוקד אש'.
And the Rambam wrote3: 'How does orlah apply? Whoever plants a fruit tree — all the fruit that that tree produces for the first three years from when he planted it are forbidden in eating and in benefit, as it says שלש שנים יהיה לכם ערלים לא יאכל, and whoever eats a kezayis of them is lashed by Torah law'.
And so too the Mechaber wrote4: 'One who plants a fruit tree counts three years for it from the time of its planting, and all the fruit that will be on it within three years are forbidden in benefit forever ..'.
★ ★ ★
Question: What is the law of these fruits that are forbidden in benefit?
Answer: The Mishnah in maseches Temurah5 says: 'And these are the ones that are burned .. and orlah and kilei hakerem; that which is customarily burned - shall be burned, and that which is customarily buried - shall be buried'.
And as to the reason that the law of orlah fruit is burning, Rashi wrote in d"h kilei hakerem: 'פן תקדש המלאה וגו' פן תוקד אש - and orlah is derived from kilayim'. And as to the manner of the derivation from kilei hakerem, the Tosafos there wrote: 'And Rashi explained, because there is a hekesh to kilei hakerem'6.
Except that the Tosafos in Sukkah7 appear to have been in doubt regarding this derashah, and these are their words: 'And if you will say: an esrog of orlah - let it be derived from the fact that its shiur is crushed, since its mitzvah is in burning, for it is counted in Temurah, in the last perek, among those that are burned, and we say there that those that are burned may not be buried; and it is possible that even by Torah law orlah is in burning, for we derive it from kilei hakerem, concerning which it is written פן תקדש, and we expound פן תוקד אש'.
And in accordance with the words of Rashi, that the law of orlah fruit is burning, the Rambam wrote8: 'Orlah and kilei hakerem - the law of their fruit is that they be burned, and their liquids shall be buried, because it is impossible to burn liquids'. And he repeated and taught9: 'These are the ones that are burned .. and orlah .. and a thing that is not customarily burned, such as liquids of orlah .. these shall be buried'10.
And so too many other Rishonim wrote, as is explained in the Raavad11: 'And orlah is among those that are burned, as it is in maseches Temurah; therefore their shiur is crushed'. And so too the Ramban wrote12, and the Ran13.
And so too Rabbeinu Yonah wrote14, brought in the Kol Bo15, and in the Semak of Zurich16: 'And the mitzvah of orlah and kilei hakerem, whether in the Land or outside the Land, is to burn them in fire'. And so too the Rosh17 wrote in the name of Rabbeinu Yonah.
And so too the Mahara"m of Rothenburg wrote in a responsum brought in the Tashbetz Katan18, and in the Semak of Zurich19: 'And as to what you asked, what one should do with orlah fruit: we learned in the last perek of Temurah, these are the ones that are burned - orlah and kilei hakerem; that which is fit to be burned shall be burned, that which is fit to be buried shall be buried. "To be burned" - such as fruit; "to be buried" - such as liquids of fruit, which are not fit to be burned, shall be buried'.
And so too it is written in the Kaftor VaFerach20: And the law of orlah and its fruit is that they be burned, and the liquids shall be buried, since it is impossible to burn them; and so it is in maseches Temurah, the last perek: tainted terumah and orlah are in burning .. And for this reason the Raavad invalidated an esrog of orlah even from the first day onward, since its shiur is crushed; but the Ra"z permits it after the first day'.
Except that the Ritva21 wrote: And that of orlah is not under an obligation of burning, but it stands for that, and it is impossible to benefit from its burning'.
Accordingly, the Rishonim wrote that there is a mitzvah and one must burn orlah fruit; however the Ritva wrote that there is no obligation of burning. In tomorrow's halacha we shall learn what the halacha is in practice.
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Notes:
1 Kiddushin 56b ↩
2 To note from the Prisha, siman 294, s"k 1 ↩
3 Shulchan Aruch Yoreh Deah siman 294, se'if 1 ↩
4 Kiddushin 33b ↩
5 But the Melechet Shlomo (Orlah ch. 1, mishnah 9) wrote: 'But is not the burning of orlah d'oraisa, as we learn in Temurah, and Rashi z"l explained: *the reason is that the Gemara derives it from kilei hakerem via mah matzinu — this one requires two hundred and that one requires two hundred.*' And so too the Tosafos Yom Tov (Temurah ch. 7, d"h vehaOrlah) noted: 'And the Tosafos wrote in Rashi's name that it is analogized (hekesh) to kilei hakerem, but they did not make known what the hekesh is. Therefore it seems to me that Rashi was precise in writing the term "gemar," for it is not a hekesh, but rather simply a derivation, like that which is expounded in ch. 2 of Orlah regarding their nullification, that we require two hundred. And the Bartenura explained that orlah is derived from kilei hakerem, for both of them are prohibitions of benefit, and this is from the Yerushalmi there.' And the Pnei Yehoshua wrote (Pesachim 22b, and so too in Succah 35b): 'And the author of the Tosafos Yom Tov wrote there that the Tosafos did not clarify the location of the hekesh, and indeed it is puzzling, for several verses intervene between the parshah of kilayim and orlah, and furthermore the kilayim of that parshah is kilei zera'im, which are permitted in eating and all the more so in benefit; and as to what the Tosafos Yom Tov explained there as to Rashi's intent, that orlah is derived via mah matzinu from kilayim, it is puzzling, for surely one can object: what of kilayim, whose prohibition is an eternal prohibition — and you can know this, for if you do not say so, why do we not derive orlah from kilayim, that it should be forbidden even not in the ordinary manner of its benefit? But this is certainly not so .. and all the more so is there a difficulty according to the Tosafos' own explanation there of Rashi's view, that it is a hekesh, and we hold that there is no hekesh for half ..' and see there further in the continuation of his words ↩
6 Succah 35a, d"h לפי ↩
7 Hilchos Ma'achalos Asuros ch. 16, halacha 27 ↩
8 Hilchos Pesulei HaMukdashin ch. 19, halacha 10 ↩
9 And it is also worth noting from the Moreh Nevuchim, vol. 3, ch. 37: 'And the Torah stood against this view, and He, may He be blessed, said *by burning everything that the fruit-bearing tree produces during the three years* ..'. And indeed the Acharonim discussed the words of the Rambam, and there are those who wrote (Mas'as Moshe vol. 1, Even HaEzer siman 20, and the Sha'ar HaMelech agreed with him, Hilchos Geirushin ch. 4, halacha 2) that there is no mitzvah of burning, but rather that their law is to be burned so that people should not stumble. And in the Beis Meir, Even HaEzer siman 124, se'if 1, he wrote that the obligation of removal is rabbinic: 'Whereas with orlah and kilei hakerem, it appears from the language of the Rambam, ch. 19 of Hilchos פ"מ, that it certainly is not a mitzvas aseh, as is implied in his introduction to this halacha, where he counts only two mitzvos aseh; and it is even possible that the implication of his language is that even a rabbinic mitzvah he does not fulfill by their burning, but rather that it is a rabbinic obligation to remove them from the world.' But in the glosses of Rav Frankel, he noted: 'This is not so, for it is explicit in the verse פן תקדש, and it is stated in the Rambam's Peirush HaMishnayos, ch. 8 of maseches Kilayim, in these words: Scripture states regarding kilei hakerem, פן תקדש, and it came through tradition to be expounded פן תקדש תוקד אש, meaning, to burn them and not to derive benefit from them — end of quote. And anything that came through the received tradition is fully Torah law, only that it is not counted among the mitzvos aseh.' And see Shu"t Chasam Sofer, Orach Chaim siman 180, and Yoreh Deah siman 286. And see Shu"t Yehudah Ya'aleh, Yoreh Deah siman 351 ↩
10 the Hasagos, 17a of the Rif's pagination ↩
11 Milchemes Hashem, Succah 15a of the Rif's pagination ↩
12 Succah 17a of the Rif's pagination ↩
13 Shaarei Teshuvah, sha'ar 3, os 83 ↩
14 siman 92 ↩
15 mitzvah 212, os 182 ↩
16 Pesachim ch. 2, siman 2 ↩
17 siman 368 ↩
18 there, os 185 ↩
19 ch. 54 ↩
20 Succah 35a ↩
[6] (Halacha 545)
The prohibition of benefit (2)
In the previous halacha we saw that most of the Rishonim wrote that orlah fruit must be burned.
Question: In practice, is there a halacha of burning for orlah fruit of Eretz Yisroel?
Answer: The Acharonim wondered why this halacha was not brought in the Tur and Shulchan Aruch, as the Bais Hillel asked1: 'Behold, the Tur and Shulchan Aruch did not write anything as to the halacha whether they must be destroyed from the world, only regarding kilei hakerem .. And if so, why did the Tur and Shulchan Aruch not write that it must likewise be burned like kilei hakerem, as the Shulchan Aruch wrote in siman 296, seif 3. And a practical difference arises from this: those that are burned — their ash is permitted, and those that are buried — their ash is forbidden ..'.
And in truth the Chasam Sofer2 here referred to the words of the Rambam: 'One who plants a fruit tree etc. Orlah is by burning — this is explained in the Rambam at the end of Hilchos Pesulei Hamukdashin'.
And we have found among the Acharonim several ways to explain the Mechaber's omission:
a. The Bais Hillel there wrote: 'And it is possible to answer and say that since the Rambam rules like the Chachomim and not like R' Yehudah, and the Mishnah at the end of Temurah is stated anonymously like R' Yehudah, that there is no destruction of chometz other than by burning, as appears there in the Gemara — if so, even though the Tanna of the Mishnah stated orlah and kilei hakerem together, nevertheless orlah and kilei hakerem are not equal in this halacha, for with regard to kilei hakerem it is specifically by burning, since it is written תקדש תוקד אש, but orlah is not, for we do not derive orlah from kilei hakerem, not like Rashi and Tosafos ..'.
b. And in Yad Avraham3 he wrote: 'And it may be said that the Shulchan Aruch follows his own reasoning, for he wrote further on at the beginning of siman 331 [seif 2] that nowadays terumos and maasros are Rabbinic even in Eretz Yisroel; and if so, the same applies to orlah nowadays, as the Mishneh L'Melech wrote4'. And so wrote the Mahara"m Shik5.
However, his words are difficult, as they noted (in Malbushei Yom Tov6. And in Yabia Omer7). For the Mechaber wrote as halacha the ruling that a doubt of orlah in Eretz Yisroel is forbidden.
c. The Chasam Sofer8 wrote: 'And behold I wrote elsewhere that I have not found in Shas that a person is obligated to burn orlah, and the Rambam too does not bring it in its place at all9, but only in Hilchos Pesulei Hamukdashin, incidentally — from which it appears to me that one was never commanded to destroy orlah from the world, but only that it is forbidden in benefit, and burning suffices for it in order to permit their ash, to the exclusion of basar b'cholov, where that does not suffice; but that there should be a mitzvah to be scrupulous to burn it — I have not found, and likewise I have never seen my teachers burning, but rather they left them and they rotted. It is true that with regard to kilayim Shas says at the beginning of perek Rabbi Yishmoel in maseches Avodah Zarah, to exclude tefillah — but there it refers to kilayim as they grow, to diminish and nullify the abominable act; but if it was uprooted from its place of growth, there is no longer a mitzvah in destroying it. And the pasuk says לא תזרע כרמך כלאים פן תגרום לך שתוקד אש — that is, granted that you will not cause a prohibition of benefit from their ash, in any event you will cause a prohibition of benefit from their body; but there is no mitzvah in burning'.
And he raised his hand a second time10: 'Nevertheless it does not appear to me that there is a mitzvah to destroy it, but only that if one destroys it by fire he performs a mitzvah, for behold the Rambam in Hilchos Orlah did not mention this mitzvah, and likewise in the Shulchan Aruch in Hilchos Orlah nothing of this is mentioned; only at the end of Hilchos Pesulei Hamukdashin did he mention orlah among those that are burned. Also I have not seen my teachers being careful about burning orlah fruit, and although it may be said that orlah in chutz la'aretz is different11, nevertheless the truth appears to me as above'. And so wrote the Mahari Assad12. And so wrote the Aruch HaShulchan13.
And several of the Acharonim wrote14 that the words of the Ritva brought in the previous halacha are the source for the approach of the Chasam Sofer.
But as halacha many of the Acharonim15 held as the main ruling like the plain meaning of the words of the Rambam and most of the Rishonim, that the orlah fruit must be burned: and as the Minchas Yitzchok wrote16: 'However, with regard to the halacha in orlah, so did they rule as halacha in practice, that burning is required'.
In the next halacha we will discuss the halacha of orlah fruit in chutz la'aretz.
Notes:
1 Shulchan Aruch Yoreh Deah siman 294, se'if 1 ↩
2 in his glosses on the Shulchan Aruch, Yoreh Deah siman 294, se'if 1, second edition ↩
3 in glosses on the Shulchan Aruch ↩
4 Ma'achalos Asuros 10:11. And these are his words there: 'And so too orlah, which we hold that in chutz la'aretz its doubt is permitted because the halacha l'Moshe miSinai was so stated — nowadays even in Eretz Yisroel its doubt is permitted, because the sanctity of the land has lapsed.' ↩
5 Shu"t Orach Chaim siman 208 ↩
6 Shu"t, Kuntres Chovas Karka, siman 3 ↩
7 Shu"t vol. 6, Yoreh Deah siman 24 ↩
8 Shu"t Yoreh Deah siman 286 ↩
9 But the Acharonim (see Neta HaAretz, halacha 45, p. 216, in the Pri Tziyon; and in Neta HaLulim, p. 62, os 62) noted that it requires further study regarding the Chasam Sofer, for the Rambam wrote this din also in Hilchos Ma'achalos Asuros, and likewise mentioned the din of burning in several other halachos. And see also what the Gaon R' Meir Arik wrote in Minchas Kena'os on maseches Sotah, daf 25a, d"h ובפשיטות להקשות על החת"ס. Shevet HaLevi vol. 4, siman 45, os 6. Mishnah Halachos vol. 19, siman 235 ↩
10 Orach Chaim siman 180 ↩
11 And so several of the Acharonim wrote (Mahara"m Shik, Orach Chaim siman 8; and see also Toras HaAretz ch. 9, os 34) in explaining his words, and it appears that they did not see this responsum, but only the responsum in the Yoreh Deah volume ↩
12 Shu"t Yehudah Ya'aleh vol. 1, Yoreh Deah siman 351 ↩
13 Yoreh Deah siman 294, se'if 3 ↩
14 Shu"t Mahara"m Shik there. Shu"t Maharsha"m vol. 1, siman 54 ↩
15 Shu"t Malbushei Yom Tov there. Toras HaAretz ch. 9. Neta HaAretz (HaLevi), Hilchos Orlah, p. 215, halacha 45. Kerem Tziyon (Rosenthal) ch. 1, halacha 2 ↩
16 vol. 10, siman 51 ↩
[7] (Halacha 546)
The prohibition of benefit (3)
In the previous halacha we learned that orlah fruit of Eretz Yisroel is forbidden in benefit and its halacha is burning
Question: What is the halacha of orlah fruit in chutz la'aretz?
Answer: In this halacha our Rishonim disagreed, as follows:
a. There are those who understood that there is no difference in the halacha of the prohibition of benefit and the burning of the fruit between Eretz Yisroel and chutz la'aretz, as Rabbeinu Yonah wrote in Shaarei Teshuvah1, and the Kol Bo brought it2: 'And the mitzvah of orlah and kilei hakerem, whether in the Land or outside the Land, is to burn them in fire'3.
b. And there are those who wrote that although there is a prohibition of benefit, there is no halacha of burning, for the Gemara in maseches Avodah Zarah4 says: 'Rav Gevihah of Bei Kesil said: Those were saplings of orlah; the idolater ate the years of orlah and the Jew the permitted years [=a Jew and a non-Jew received a field in partnership to plant it and to take half between the two of them, and the non-Jew worked it as much as it required during the orlah years and ate them, and the Jew received three other years corresponding to them and ate them. Rashi]; they came before Rava, and he permitted it to them [=for it was entirely permitted, since even though they received it together from the outset, and the Jew said to him: you work these three years and I the three after them, there is no prohibition of agency here, for a Jew too is permitted to work it; and if because of the eating, that the Jew eats corresponding to them and is thus found to be benefiting from orlah fruit that he sold — this is not benefiting, for such is the arrangement: the year that this one works, he eats. Rashi]'. And Tosafos Rabbeinu Elchonon asked5: 'And it is difficult for me: in any event, since the two of them received the field and did not stipulate from the outset, behold the orlah fruit grew also in the domain of the Jew, and they are subject to burning, as is taught at the end of maseches Temurah, where it counts orlah and kilei hakerem among "these are the ones that are burned"; and it is proved there that it is specifically burning, for it says there that this Mishnah is R' Yehudah, who says that there is no destruction of chometz other than by burning, since burning is taught regarding it in the Mishnah. And if so, how may the Jew allow the non-Jew to eat them? Even without the reason of benefit we should have forbidden it. And it may be said that here it was in chutz la'aretz, and in chutz la'aretz it may be said that burning is not required, for a doubt regarding it is permitted, as it says in Kiddushin6; and that which it also says there, אבר ודהוה7, does not require burning, for they were not so stringent regarding it'.
c. And there is one of the Rishonim who held that there is not even a prohibition of benefit, but only a prohibition of eating, for the Gemara in maseches Sukkah8 explained why an esrog of orlah is invalid. 'What is the reason? R' Chiya bar Avin and R' Assi disagree about it. One says: because it has no permissibility of eating; and one says: because it has no monetary status'. And seemingly this requires explanation: why are these reasons needed? For in any case orlah is a prohibition of benefit that stands to be burned, and consequently the esrog has no shiur, as the Gemara wrote there regarding an esrog of an asheirah and of an ir hanidachas? And the Tosafos Rid9 wrote in explanation: 'And it appears to me to answer that this orlah is taught without qualification, even in chutz la'aretz, where it is forbidden only in eating10 and not in benefit, as we say in the first perek of Kiddushin, that it is a halacha of Moshe from Sinai that what is seen is forbidden and its doubt is permitted, and as we say there: leave it in doubt for me and I will eat11; therefore they do not stand to be burned, for behold he may sell it to his fellow and not inform him that it is orlah, and it is permitted to him — therefore it explains the reason as being because it has no permissibility of eating'12. However, note what is written in the responsa Malbushei Yom Tov there: 'And so is the view of almost all the Rishonim, that orlah of chutz la'aretz is forbidden in benefit, and the view of the Tosafos Rid and the Riaz, who followed him, is a lone view'.
If so, the Rishonim disagreed whether their halacha is burning, or whether they are only forbidden in benefit, or, beyond that, that they are even permitted in benefit and forbidden only in eating.
And as halacha it appears from the words of the Mechaber and the Rema13 that there is a prohibition of benefit: for the Mechaber wrote14: 'Orlah applies in every place and at every time, both with that of a non-Jew and with that of a Jew, except that with that of Eretz Yisroel it is from the Torah, and in chutz la'aretz it is a halacha of Moshe from Sinai'. And the Rema wrote in his gloss: 'And it is forbidden to pick fruit for a non-Jew from his tree that is orlah, because he benefits from the fact that the non-Jew holds him in favour for this'15. And as the Imrei Binah wrote16: 'However, the view of all the poskim appears to be that orlah of chutz la'aretz is forbidden in benefit, and according to the view of the Bais Yosef he may not even feed it to others'.
But with regard to the obligation of destruction by burning, it appears from the words of the poskim17 that the main ruling18 is that they do not require destruction by burning, as the Kapos Temarim wrote19: However, there is room to argue and say that orlah of chutz la'aretz is forbidden in eating and in benefit, but nevertheless one is not obligated to burn it as in Eretz Yisroel.
And in the previous halacha we saw that the Chasam Sofer wrote20: 'Also I have not seen my teachers being careful about burning orlah fruit, and although it may be said that orlah in chutz la'aretz is different, nevertheless the truth appears to me as above'. And although the Chasam Sofer himself held that there is no halacha of burning even with orlah of Eretz Yisroel, and in this the poskim did not agree with him, in any event from his testimony about the conduct of his teachers we learn that with orlah of chutz la'aretz there is no obligation of burning, as the Mahara"m Shik21 and Toras Ha'aretz (Kliers)22 wrote in explanation of his words.
If so, in practice there is a prohibition of benefit also with the fruit of chutz la'aretz; however, with regard to their destruction one may be lenient and rely on the views that there is no obligation to burn them specifically.
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Notes:
1 sha'ar 3, os 83 ↩
2 siman 92 ↩
3 And it is worth noting what is written in Shu"t Malbushei Yom Tov vol. 2, Kuntres Chovas Karka, siman 1, and Toras Ha'aretz (Kliers), ch. 9, os 34, that it may be said that this din depends on whether the halacha l'Moshe miSinai is an independent matter, or whether it explains what is written in the Torah — in which case there would be no difference between the Land and chutz la'aretz. And in the Tzafnas Paneach on the Rambam, Hilchos Ma'achalos Asuros ch. 10, halacha 10, he wrote that according to the Rambam it is a new din ↩
4 Avodah Zarah 22a ↩
5 Avodah Zarah there, d"h גוי ↩
6 Kiddushin 39a ↩
7 Perhaps it should be emended to read אבד ודאה ↩
8 Succah 35a ↩
9 Succah 35a ↩
10 But see what is written in Shu"t Malbushei Yom Tov there ↩
11 This Gemara is discussed and explained in halacha number 543 ↩
12 And see the Sefas Emes, Succah 35a, who wrote that because of the Tosafos Rid's difficulty it suffices to say that there is no need to burn it, and one cannot prove from this a permit of benefit. And see also the Minchas Chinuch mentioned in note 18 ↩
13 And as the Pri Megadim wrote in Ginas Vradim, klal 1. Shu"t Maharsha"m vol. 1, siman 54 ↩
14 Shulchan Aruch Yoreh Deah siman 294, se'if 8 ↩
15 Indeed it is worth noting what the Pri Megadim wrote in Ginas Vradim there, that it appears from the words of the Magen Avraham that he was in doubt about this ↩
16 Shu"t siman 11 ↩
17 And so too he wrote in Yavin Da'as by the Mahari of Kutno, siman 103, in the longer commentary (p. 106). Avnei Nezer Orach Chaim siman 489. Chelkas Yoav Orach Chaim siman 34, at its end ↩
18 And it is worth noting that the Pnei Yehoshua, Berachos 36a, wrote that if we say that the din of orlah in chutz la'aretz is only from hilchos medinah, therefore there is no need to burn them. But the Minchas Chinuch, mitzvah 246, os 10, wrote: 'And it appears to me that even according to the opinion that it is a halacha l'Moshe miSinai, nevertheless, since for all items that are burned a verse is needed to include that they be burned, and otherwise it would be among those that are buried — see the end of Temurah, and Tosafos, that its mitzvah is thereby performed — if so, granted, in Eretz Yisroel, where its prohibition is stated explicitly in the Torah and there is a hekesh to kilei hakerem, or it is derived via mah matzinu, it is by burning; but in chutz la'aretz, where it is not stated explicitly in the verse, only as a halacha l'Moshe miSinai, if so, from where would we know — since Chazal did not reveal that the halacha is by burning — from where would we know that it requires burning, and its din would be like any ordinary prohibition of benefit? Afterwards I found likewise in the Kapos Temarim on Succah there, see there. And with this one can resolve the difficulty of the Tosafos in Succah: why is the reason given for orlah because it has no permit of eating or monetary status, seeing that in any case it would be crushed of its own measure since it is subject to burning? *And according to what I have written, it is well resolved that the above reasons are needed for orlah of chutz la'aretz, which is not subject to burning, and nevertheless it has no permit of eating or benefit ..'*. And see also Shu"t Maharsha"m vol. 1, siman 54. Sdei Chemed, ma'areches HaLamed, klal 141, os 32 (vol. 2, p. 784) ↩
19 Succah 34b ↩
20 Shu"t Orach Chaim siman 180 (and Yoreh Deah siman 286) ↩
21 Orach Chaim siman 8 ↩
22 ch. 9, os 34 ↩
[9] (Halacha 549)
Question: Does the halacha of orlah apply only to the fruit or also to the other parts of the tree?
Answer: It is stated in the Torah in parshas Kedoshim1: 'וכי תבאו אל הארץ ונטעתם כל עץ מאכל וערלתם ערלתו את פריו שלש שנים יהיה לכם ערלים לא יאכל'.
The Mishnah in maseches Orlah2 says: 'The leaves, the young shoots, the sap of vines and the semadar are permitted with regard to orlah and with regard to revai and with regard to a nazir, and are forbidden with regard to an asheirah. R' Yosi says: the semadar is forbidden, because it is fruit. R' Eliezer says: one who curdles with the sap of orlah — it is forbidden. R' Yehoshua said: I heard explicitly that one who curdles with the sap of the leaves or with the sap of the roots — it is permitted; with the sap of the unripe fruit — it is forbidden, because they are fruit. Anakoklos3 and the pits and the skins and the wine made from them, the peels of a pomegranate and its blossom, the shells of nuts and the kernels, are forbidden with regard to orlah and with regard to an asheirah and with regard to a nazir, and are permitted with regard to revai. And the novlos — all of them are forbidden'.
And as to the manner in which this is derived, it is written in the Sifra4: 'פריו — excluding the leaves and the young shoots and the sap of vines and the sap of the semadar. Or perhaps I might exclude the anakoklos and the unripe grapes? The Torah teaches: פריו, פריו — these are the words of R' Yosi HaGlili. R' Akiva says: וערלתם את ערלתו, ערלים — to include them all'.
And in the Gemara in maseches Brochos5 it is stated: 'And let it be derived that it becomes a guard for the fruit, and the Torah said: וערלתם ערלתו את פריו - that which is subordinate to its fruit; and what is that? A guard for the fruit!'.
That is, from the words of the Mishnah and the Gemara we have learned that the obligation of orlah depends on its relation to the fruit, and insofar as it is subordinate to the fruit it has the halacha of orlah; therefore peels and kernels are subject to orlah, which is not the case with leaves.
And as halacha the Mechaber wrote6: 'And all the fruit that will be on it within three years are forbidden in benefit forever, whether the fruit itself, or the kernels, or the peels — such as the shells of nuts and of pomegranates, and their blossom, and the skins and the pits of grapes and the wine made from them, and the unripe fruit and the dates that do not ripen, and the grapes that were blighted and do not complete their ripening — all of them are subject to orlah .. But the leaves and the young shoots and the sap of vines, that is, when one cuts the vine something like water drips from it, are permitted with regard to orlah'.
If so, in practice the prohibition of orlah applies to the fruit and to what is subordinate to the fruit (kernels, peels and the like) - that which guards the fruit, and not to leaves and branches.
★ ★ ★
Question: Is there a concern of orlah with grape leaves?
Answer: As we learned in the previous halacha, the prohibition of orlah is on the fruit, and therefore there is no prohibition of orlah with grape leaves7.
But the poskim wrote that one must be very careful with eating grape leaves, since they are very infested with insects, to the point that there were communities among Klal Yisroel that instituted a takanah that it is forbidden to eat grape leaves entirely, as is written in Kaf HaChaim8, and see also in Darkei Teshuvah9: 'The grape leaves that are called yaprakis: in the city of Aram Tzova there was great confusion, for they examined grape leaves and found them full of fine insects, and after they had been examined several times by an eye that sees well against the sun, still many remained; and they made many tests of this kind. Therefore the agreement arose of the pious Rav, the head of Aram Tzova, Mahara"sh Laniado, and the other chachomim, to forbid them entirely. And so too the wondrous Rav, the light of the exile, Mahara"ch Abulafia, agreed to forbid. And also the rabbonim of the holy city of Yerushalayim and the rabbonim of the holy city of Chevron agreed to forbid. And there are chachomim who elaborated with the strength of permitting, in order to uphold the minhag of Yisroel who eat of the aforementioned grape leaves; and certainly in a place where they were forbidden, such as the city of Aram Tzova, one who eats of them breaches a fence. But in other places where the practice is to permit, there is room to permit: for if there are insects in them, in his place he should first cut off the place where they are attached to the tree, and afterwards examine each leaf by itself with great deliberation, and wipe it with a cloth, and afterwards place them in boiling water that the hand recoils from, and afterwards he may cook them without hesitation. This is the substance of the words of the Rav Mahari Zayin in a responsum brought in the sefer Mas'as Moshe vol. 2, Yoreh Deah siman 4, and after him the author held so in siman 5, for the reason that there are two and three doubts, see there well. Machazik Bracha, os 24. However, in the sefer Admas Kodesh vol. 2, Yoreh Deah siman 1 he wrote that they accepted in the holy city of Yerushalayim not to eat them in their year, and he agreed with the Rav Mahara"sh Laniado who forbids, see there; and the Machazik Bracha, in the kuntres acharon, os 1 brought his words. Also in the city of Baghdad there is an ancient agreement from early years not to eat grape leaves, and by them they are like the flesh of a pig. And one time we were in an orchard with several people, and one of them brought grape leaves in his hand and said to us: show us where the insects are. And we placed them in the sun for about three minutes (that is to say, minutin), and we showed them palpably many, many small insects running and dancing within the leaves, and they said to us: 'Blessed is He who chose them and their teaching'. Zivchei Tzedek, os 99. And so the Ben Ish Chai wrote there, that in the city of Baghdad they treat them as forbidden like Aram Tzova. Therefore every conscientious person, even though in his place the practice is to permit, should be concerned for himself to be stringent'.
If so, in practice leaves, and among them grape leaves, have no halacha of orlah; however, these leaves are very infested with insects, and therefore one should not eat them without verifying that they are clean.
It is important to note that in the halacha of orlah there is halachic significance also to the reason and the purpose of the planting of the tree, whether for the fruit or for another reason, and this will be explained in the coming halachos with Hashem's help.
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Notes:
1 ch. 19, pasuk 23 ↩
2 ch. 1, mishnayos 7-8 ↩
3 In explanation of 'anakoklos,' it is explained in the Yerushalmi, Orlah ch. 1, halacha 5: 'Anakoklos and the pits. R' Ze'ira and one of the Rabbanan, in the name of Rav: grapes that were blighted before they had brought a third of their growth — R' Yosi bei R' Bun said: even if they were blighted after they had brought a third. R' Chiya bar Ada said: *it is a notarikon: grapes that were blighted, the three of them.* ↩
4 Kedoshim, parshah 3, end of ch. 5, os 3 ↩
5 Brochos 36b ↩
6 Shulchan Aruch Yoreh Deah siman 294, se'ifim 1-2 ↩
7 Shu"t Divrei David (Tehrani) vol. 4, Yoreh Deah siman 53 ↩
8 siman 84, s"k 94 ↩
9 siman 84, s"k 151 ↩
[10] (Halacha 550)
Question: What is the halacha regarding a tree parts of which, or whose leaves, are eaten, and it is planted for that purpose¹?
Answer: In this law the Rishonim disagreed as to what is considered a fruit tree with regard to orlah, as follows:
a) The Ramban wrote1: 'Pepper is a fruit and orlah applies to it, as R' Meir holds; and it is greatly surprising that some of the Geonim, of blessed memory, wrote that over fresh pepper one recites borei pri ha'adamah, since we raise the objection: "a fruit tree" - this is pepper; and so too Rabbeinu Hai Gaon, of blessed memory, wrote .. And it is possible that the Rishonim held so because the shoots of the pepper, which form on the tree itself like blisters, are white, and that is white pepper; and when they ripen excessively they are black pepper - this is the matter of pepper in its growth. And for this reason the Geonim treated them like the shoots of the caper and of the esrog, to recite borei pri ha'adamah over them, since they are of the body of the tree; and likewise with regard to orlah, which the verse included, since it is written "a fruit tree", it is possible that it is called a fruit tree; and in any event we recite borei pri ha'adamah over it as over a tree that is eaten, and the tradition of the Geonim we accept2'.
And there are those who learned3 from his words that if a tree has parts that are eaten, their law is like the law of fruit and the prohibition of orlah applies to them.
Further views we find among the Rishonim, and by way of introduction: generally a fruit has two components: 1. that part of the tree which is eaten; 2. in it are found the seeds of the fruit, by means of which it will be - 'a tree producing fruit'. But there are trees in which there is a separation, such as the rose plant, which has a part (black) in which the seeds are found, but that is not eaten, and there are the rose petals, which are eaten. However, even if these petals are plucked, that has no effect on the part of the seeds; and the Rishonim disagreed as to how to relate to such a plant:
b) The Rashba4 wrote5: 'It appears to me that the rose is included among the fruits, since he taught it in the section of the fruits; and it is the rose petals that are eaten and not the seed. And moreover, even if it were as you say, in any event the rose is no worse than a guard for the fruit, and a guard for the fruit is forbidden for orlah like the fruit. And since you were concerned to permit it because there is need of it for people, I investigated and examined after it, and I found that the Raavad, of blessed memory, was in doubt about it, and said that the seed is the fruit and the flowers are like its leaves, and therefore we are not concerned about them on account of orlah, since it is not fruit and not a guard for the fruit. And although this matter is not clear to us, whether when you take it while it is a smadar you thereby destroy the fruit or not - in any event, since they were not careful with them on account of orlah, in chutz la'aretz it is permitted. Here you have the great Rav, of blessed memory, who knows how to declare the sheretz pure from the Torah; and although my view does not rely on all this, as to the halacha one listens to him, for he is a distinguished Rav, and whoever is stringent against him must bring the proof'.
Accordingly, in the view of the Rashba the rose petals are the fruit of the rose, and in any event they are a guard for the fruit, and by the essential law orlah applies to them; except that in practice, in chutz la'aretz, he relied on the Raavad, who permitted it.
c) But many Rishonim disagreed with the Rashba, as the Rashba and the Meiri wrote in the name of the Raavad. And so too the Ra'ah wrote6: 'Therefore roses, which are called roshash, and which are certainly formed on the tree - for we say further on in the Gemara that the signs of a tree are that when you take the fruit the tree remains and again produces fruit, and so it is here too - and even so they are permitted and there is no orlah in them, for the fruit of those trees is the seed that forms in the circle beneath the rose7, and it is closed and not visible; and the roses are only flowers that come at the beginning of the fruit, and the fruit does not form after them for many days. And if you take the leaves of the rose alone and the circle remains, the seed is not thereby prevented from coming, but it comes afterwards and forms properly. Therefore there is no orlah in them, and this is clear; and so R' Avraham b"r Dovid, of blessed memory, agreed'. And so too the Ritva wrote8.
And in practice the poskim wrote that the minhag was not to practise the prohibition of orlah with roses in chutz la'aretz9, and also not in Eretz Yisroel; and as the Shitah Mekubetzes10 wrote, after bringing the Ra'ah and the Ritva, he concluded: 'Therefore there is no orlah in them at all, and so is the minhag; and the minhag of Yisroel is Torah'.
The Mahari"t11 wrote: 'Therefore it appears to me, as to the halacha, that even if it depends on a disagreement of the great authorities, whether it is a fruit of the tree or not - the halacha is like the one who is lenient in orlah in chutz la'aretz, for a doubt of orlah is permitted. And since the Raavad, of blessed memory, although with regard to a bracha he considered it a fruit, wrote that we are not concerned on account of orlah, and that no person had been seen being careful with them - upon this one may rely. All the more so, since we have seen our fathers reciting borei atzei besomim over roses and over rose water .. and the tradition and the practice are the pillars of halachic instruction; and even in Eretz Yisroel, where a doubt of orlah is forbidden, I have never seen anyone who was careful about this ..'. And so too the Mahara"m ben Chaviv wrote12, and the Nahar Mitzrayim13.
Accordingly, we saw that in the view of most of the Rishonim there is no orlah in rose petals, and many poskim wrote that such was the practice even in Eretz Yisroel14.
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Notes:
1 This din is different from grape leaves, which were explained in the previous halacha, since with a grapevine one plants the tree for the grapes and not for the leaves ↩
2 Berachos 36b ↩
3 The Ritva, Succah 35a, wrote: 'And there are those who say that pepper is not like other fruits that form on the tree, but rather form like the tree itself, similar to sap or blisters, and therefore they needed to teach us that they are fruit and that they are obligated in orlah even though it is not typical fruit .. *but this is not correct.*' ↩
4 See Shu"t Chevel Nachalaso vol. 1, siman 61 ↩
5 vol. 7, siman 357 ↩
6 And see there in siman 356, where he held that the reason to forbid on account of orlah also stems from a comparison to the laws of shemittah. And see also the Meiri, Niddah 8a, and what he wrote as to the view of the Rambam; indeed many Acharonim (Tosafos Yom Tov, Orlah ch. 1, mishnah 7; Chasam Sofer, Niddah 8b; Shu"t Mishkenos Yaakov, Orach Chaim siman 97) wrote that from the Rambam it is proven (Hilchos Shemittah V'Yovel ch. 7, halacha 9, and Hilchos Ma'achalos Asuros ch. 16, halacha 6) that he thus distinguished between shevi'is and orlah, and not like the Rashba ↩
7 Berachos ch. 6 ↩
8 Indeed the Rashba wrote: 'Also the argument from the seed is, in my eyes, not a valid argument, for the thing that is sown is not the essential fruit — for if you say so, even the pits of a date and of olives would be the essential fruit; and furthermore, they did not forbid there, regarding shevi'is, the seed of the rose, as they forbade the essential part of the luf and the dandanah.' ↩
9 Succah, there ↩
10 The Radbaz wrote that even according to those who hold that the rose is a fruit tree and one recites a bracha over its scent, which gives a pleasant scent to fruits, nevertheless orlah does not apply to it, because the rose is not made for the food of healthy people, but rather for strengthening health ↩
11 Berachos 36b ↩
12 vol. 2, Yoreh Deah siman 34, and so too his student wrote in the Knesses HaGedolah, glosses on the Beis Yosef, Yoreh Deah siman 294: 'But my teacher the Rav, in a responsum, vol. 2, Yoreh Deah siman 34, wrote *that even in Eretz Yisroel they do not practise the din of orlah with them.*' And so ruled the Erech Lechem, Yoreh Deah siman 294, se'if 3. Shu"t Ateres Paz vol. 1, part 2, Yoreh Deah siman 16 ↩
13 Tosafos Yom HaKippurim, daf 81, d"h ללמדך ↩
14 Yoreh Deah, 125a, os 15 ↩
15 Indeed there are those who wrote that in Eretz Yisroel one should be stringent (see the Beis Yosef, in Bedek HaBayis, siman 294, os 3, who brought from one Rishon's shitah on maseches Niddah, who cited the Raavad, who is lenient in chutz la'aretz, but concluded: 'that the Ramban wrote on this that whoever is stringent, may he be blessed, and so too the Rashba answered.'). As is explained in the Maharashda"m, Shu"t, Yoreh Deah siman 192. Melechet Shlomo, Shevi'is ch. 7, mishnah 7. Beis Lechem Yehudah, end of siman 294. Emunas Itecha, booklet 7, p. 11-17. And in Shu"t Ma'amar Mordechai vol. 2, Yoreh Deah siman 26 ↩
[11] (Halacha 551)
Question: May one plant trees from the seeds or the branches of orlah?
Answer: The Mishnah in maseches Orlah1 says: 'Rabbi Yosi says: one may plant2 a shoot of orlah, but one may not plant a nut of orlah, because it is a fruit; and one may not graft with kefanios of orlah'.
However, in a case where one transgressed and planted a fruit of orlah, the Rishonim disagree as to the halacha of the fruit, as follows:
The Gemara in maseches Avodah Zarah3 says: 'And does Rabbi Yosi hold that zeh vezeh gorem is forbidden? But we learned in a Mishnah: Rabbi Yosi says, one may plant a shoot of orlah, but one may not plant a nut of orlah, because it is a fruit; and Rav Yehudah said in the name of Rav: Rabbi Yosi concedes that if he planted, or sank a shoot, or grafted - it is permitted .. R' Yosi spoke to them according to the words of the Rabbanan: according to me, zeh vezeh gorem is permitted; according to you, who say that zeh vezeh gorem is forbidden, at least concede to me also regarding vegetables in the rainy season. And the Rabbanan? As Rav Mari the son of Rav Kahana said. Rav Yehudah said in the name of Shmuel: the halacha is like Rabbi Yosi'.
a) And Rashi explained: '"That if he planted" - the nut of orlah, it is permitted; which shows that when the tree grows and bears fruit, those fruits come about through the causation of the nut, which is forbidden, and the ground, which is permitted - and it teaches that it is permitted. "And sank a shoot and grafted" - if he sank or grafted a shoot of orlah into an old tree, their fruits are permitted immediately, even though the years of orlah were not completed for them, for zeh vezeh gorem is permitted; and so too we say elsewhere: a young tree that was interwoven into an old one is nullified. Another version: if he planted the nut of orlah, which is forbidden in benefit, and when it grew and became a sapling he sank it and grafted it into a permitted tree, it is permitted, for those fruits that it bears afterwards come also by means of the permitted tree. And it is difficult for me: even without sinking and without grafting there is likewise zeh vezeh gorem - the nut, which is forbidden, and the ground, which is permitted'.
That is to say, according to Rashi in his first and primary explanation, the words of Rav Yehudah in the name of Rav apply in all cases, both in a case where he planted and in a case where he sank a shoot and grafted; and accordingly, even in a case where he planted a fruit of orlah, Rabbi Yosi said that bedieved the fruits that grow are permitted by the law of zeh vezeh gorem.
Except that the Ritva explained there: 'That l'chatchilah it is forbidden according to all .. and so it stands to reason, for if it were not so, according to the one who says that zeh vezeh gorem is permitted we would have found a permit for prohibitions of benefit'. And so too the Shach wrote4.
b) But the Tosafos there learned like the second explanation of Rashi, and these are their words: 'The Kuntres explained in the latter version: he planted the nut, and afterwards, when it became a sapling, he sank it and grafted it into a permitted tree - that version is the primary one; and as for the difficulty he raised in the Kuntres, that even if he did not sink and graft it is likewise so, he was not precise, for it is called zeh vezeh gorem only when both of them are of one kind, such as the sinking of a forbidden shoot into a permitted tree, where both are a tree, and such as manure of a neveilah and the ground above; but a nut and the ground are two different kinds5'.
That is to say, according to the Tosafos, in a case where he planted a fruit of orlah this is not considered zeh vezeh gorem, since the ground and the nut each do something different for the benefit of the growth; and zeh vezeh gorem means, for example, that he placed forbidden manure in the earth, where both the manure and the earth perform the same action. Therefore they explain the words of Rav Yehudah in the name of Rav as referring to a case where he both planted and afterwards also grafted, and therefore it is permitted.
The Rambam6 wrote like the words of Rashi: 'One may plant a shoot of orlah, but one may not plant a nut of orlah, because it is a fruit; and orlah fruit is forbidden in benefit, as we explained in Hilchos Maachalos Assuros; and if he transgressed and planted a nut of orlah, that which grows is permitted like the other trees. And so too the Tur7 wrote.
And so the Mechaber ruled as halacha8: 'It is forbidden to plant a fruit of orlah; and if he planted it, the fruits that come out of it are permitted9, for zeh vezeh gorem is permitted. And it is permitted to plant a shoot (meaning a branch from the tree) of orlah, for orlah applies only to the fruit'. And the Taz wrote10: 'And in any event it is obvious that that tree which will grow afterwards requires three years, as is the law of orlah; only that after three years it is permitted; and were it not zeh vezeh gorem it would be forbidden forever, as is the law of orlah'.
And indeed Rabbi Akiva Eiger, in a gloss on the Shulchan Aruch, brought the view of the Tosafos: '"Zeh vezeh gorem is permitted." And the view of the Tosafos is to forbid, for it is not called zeh vezeh gorem, since with the nut and the ground the actions are of two different kinds'.
But the consensus of the Acharonim is like the words of the Shulchan Aruch, as the Pri Yitzchok wrote11: 'However, in truth, although the Tosafos wrote of Rashi's explanation that he was not precise, nevertheless the view of nearly all the Rishonim is like Rashi's explanation. And first of all, the Rambam .. and it is explicitly explained like Rashi's explanation, that also the growths that grow from orlah fruit are permitted on account of zeh vezeh gorem. And so it appears from the words of the Raavad in the Hasagos at the end of ch. 5 of Hilchos Nedarim .. And so too the Ran wrote, like Rashi's explanation, and in the Chidushei HaRitva in Avodah Zarah there, and so too the Tur wrote in Yoreh Deah siman 294 .. And see in the Beis Yosef, who wrote: and the explanation of zeh vezeh gorem is that the fruit, which is forbidden, and the ground, which is permitted, cause the tree to come - see there. And so he ruled plainly in the Shulchan Aruch there, and brought no dissenter on this, see there. And from all this it is explained like Rashi's explanation, that the growths of a thing forbidden in benefit are permitted on account of zeh vezeh gorem. .. And in any event it has been explained that the essential ruling is like Rashi's explanation in Avodah Zarah there, that the growths of a nut of orlah are permitted on account of zeh vezeh gorem, and such is the view of all the Rishonim, and as was likewise ruled in the Shulchan Aruch, as above'.
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Notes:
1 ch. 1, mishnah 9 ↩
2 And the Tosafos explained (Avodah Zarah 48b) that although orlah does not apply to the tree but only to the fruit, so what is the novelty in this, that it is permitted: 'and it teaches us that we do not decree against a shoot on account of a nut, for with a shoot orlah does not apply to it.' But see the Binyan Shlomo, for what he wrote on the words of the Tosafos ↩
3 Avodah Zarah 48b ↩
4 Yoreh Deah siman 294, s"k 23. 5Indeed the Ritva there raised a difficulty against their words: 'And it is also difficult for me, according to their explanation, that since the nut, which is the seed, stands in the ground, and from both of them the plant emerges, there is no greater zeh vezeh gorem than this.' ↩
5 Hilchos Ma'aser Sheni V'Neta Revai ch. 10, halacha 20 ↩
6 Yoreh Deah siman 294 ↩
7 Shulchan Aruch Yoreh Deah siman 294, se'if 12 ↩
8 The Mahara"m Shik, in a gloss on the Shulchan Aruch, noted: 'And this requires further study — whether, if he planted intentionally, it is forbidden to the one who planted it, just as we hold regarding one who nullifies a prohibition, above siman 99, se'if 5; for the Ran, at the end of perek Kol HaTzelamim, also wrote that zeh vezeh gorem is on account of bittul.' ↩
9 s"k 18 ↩
10 Shu"t vol. 1, siman 15 ↩
[12] (Halacha 552)
And birchas hanehenin [1]
Question: We learned that pits are subject to the halacha of orlah; does this have any bearing on birchas hanehenin?
Answer: The Rishonim disagree as to the definition of the pits' liability to orlah, and consequently as to whether this has a bearing on birchas hanehenin, as follows:
a) Tosafos wrote1: 'Nut shells and the pits are subject to orlah for they are fruit — from here that one recites a bracha on the pits of cherries and the pits of peaches and of apples and all kinds of fruit pits, borei pri ha'eitz'.
And so wrote the Rosh2: 'It is taught in a baraisa: pomegranate peels and its blossom, or nut shells (and its blossom) and the pits are subject to orlah, because they are a protection, and we expound את פריו to include that which is subordinate to its fruit, but as for the pits, since they are subject to orlah, evidently they are fruit3. From here one may learn regarding all fruit pits that one recites borei pri ha'eitz over them, provided that they not be bitter, so that he derives pleasure from them'.
That is to say, according to Tosafos and the Rosh, את פריו includes also the things that are subordinate to the fruit, namely things that attach to the fruit and protect it; but the pits do not protect the fruit, and they are not derived from את פריו — and since even so the halacha of orlah applies to them, it is understood that their liability is because they are defined as actual fruit, and therefore their bracha is borei pri ha'eitz.
b) However, the Rashba4 wrote: 'Pomegranate peels and its blossom, nuts and the pits are subject to orlah. Tosafos wrote that from here one may learn that one recites borei pri ha'eitz on the pits of cherries, which are called cerises, and the pits of peaches and apples and all kinds of fruits, but this is not at all clear in my eyes, for these are not subject to orlah because they are fruit, but rather from the inclusion of את, from which we expound to include that which is subordinate to its fruit, and this is why they were combined and taught together with nut shells, and all of them we include from את; and on the contrary, with cherries and peaches, whose pits are bitter, it is implied that one does not recite any bracha over them at all, and they are not planted with them in mind at all; and if they are sweetened by fire, one recites shehakol over them, as above'.
[And note what the Avudraham wrote regarding the bracha of borei pri ha'eitz: 'The pits of all fruits .. and the Rashba wrote that one does not recite borei pri ha'eitz over them but rather borei pri ha'adamah, for on the contrary it is not considered fruit with regard to orlah, but rather he includes them from את פריו, that which is subordinate to its fruit'].
That is to say, according to the Rashba, את פריו includes everything that is connected to the fruit but is not the fruit itself, and this includes the peels and the pits; therefore the bracha of the pits is not like the bracha of the fruit, and if they are fit to be eaten their bracha is shehakol.
In practice the Mechaber ruled5 like the view of Tosafos and the Rosh: 'Fruit pits: if they are sweet, one recites over them borei pri ha'eitz; and if they are bitter, one does not recite any bracha over them at all; and if he sweetened them by fire, he recites over them shehakol'.
However, the Acharonim6 wondered at the Mechaber, who ruled that pits which one sweetens by fire have a bracha of shehakol — for this is only according to the Rashba, who held that the pits are not considered fruit, and therefore through sweetening one recites shehakol; but according to the view of Tosafos and the Rosh, if one sweetens them by fire, should their bracha not be borei pri ha'eitz?
Therefore there are Acharonim who disagreed with the Mechaber and decided in accordance with the view of the Rashba, as written in the Even Ha'ozer7. And there are those who wrote8 that one always recites over the pits shehakol nihyeh bidvaro.
However, the Magen Avraham9 wrote to explain the words of the Mechaber, that there is a difference between pits that are fit to be eaten, upon which there is the name of fruit and whose bracha is borei pri ha'eitz, and bitter pits, which are not fruit at all, and therefore when one sweetens them he recites shehakol: 'But according to the Rosh, whom we hold like, if so, the same applies when one sweetens them by fire — he recites borei pri ha'eitz, as is written in se'if 5 regarding almonds; and one must say that when they are bitter they are not fruit, unlike almonds, and so it is implied in the Levush, see se'if 1'.
And so ruled the Alter Rebbe10: 'Fruit pits, if they are sweet and fit to be eaten, are included in the fruit and the name of fruit is upon them, and one recites over them borei pri ha'eitz; and if they are bitter, one does not recite any bracha over them at all, and even if he sweetened them by fire or by something else, he recites over them only shehakol nihyeh bidvaro'. And in his Shulchan Aruch11 he concluded: 'For bitter pits have no name of fruit upon them at all, and they are like mere wood'.
And Rav Chaim Naeh12 explained: 'The Alter Rebbe was precise and wrote regarding sweet pits 'they are included in the fruit', and did not write simply 'the name of fruit is upon them' as he wrote in his Shulchan Aruch; and with this is settled what is seemingly difficult, for reason dictates that the pits are certainly not the essence of the fruit, and go out and see what the people do, that many do not eat the pits at all; and anything that is not the essence of the fruit descends a level from its bracha, to recite over it borei pri ha'adamah, as written above in se'if katan 9. And according to what has been said it is settled, for the rule that something which is not the essence of the fruit has a bracha of borei pri ha'adamah applies when it grows on its own, as with the leaves and shoots of the caper bush, whose bracha changes; but when it grows together with the fruit, then 'they are included in the fruit', meaning one thing with the fruit, and one recites over it the bracha of the fruit. But a bitter pit, which is not fit to be eaten, is not included in the fruit, for it has no name of fruit upon it at all. And see in the Mishnah Berurah that bedieved, if one recited over bitter pits, after one has sweetened them, ha'adamah or ha'eitz, he has fulfilled his obligation'13.
In the next halacha we will see what the bracha is on pumpkin and watermelon seeds.
--------------
Notes:
1 Brochos 36b ↩
2 Brochos ch. 6 siman 4 ↩
3 And see Maadanei Yom Tov on the Rosh there, os 50 ↩
4 Brochos 36b ↩
5 Shulchan Aruch OC siman 202 se'if 3 ↩
6 Magen Avraham and Eliyah Rabbah s"k 7, and others ↩
7 OC siman 202 se'if 3. [But see what the Alter Rebbe wrote in Shulchan Aruch OC siman 202, Kuntres Acharon s"k 4]. Pri Chodosh. Be'er Heitev s"k 6. Biur HaGra s"k 8, and others ↩
8 See Birkei Yosef there s"k 3, and in Shu"t Yosef Ometz siman 23. And see further the sources cited in Yabia Omer vol. 7, OC siman 31 ↩
9 ibid. s"k 7 ↩
10 Seder Birchos HaNehenin ch. 6 se'if 3 ↩
11 siman 202 se'if 8 ↩
12 Ketzos HaShulchan siman 49, Badei HaShulchan os 18. And the Gaon R' Ovadia Yosef wrote there: 'And in the sefer Ketzos HaShulchan .. he wrote to explain the reasoning of the Alter Rebbe with good sense and understanding' ↩
13 And see Shu"t Tzemach Tzedek OC siman 26 os 4 ↩
[13] (Halacha 553)
Birchas hanehenin [2]
Question: In the previous halacha we learned that in practice the bracha of the pits is like the bracha of the fruit; what is the halacha with pumpkin and watermelon seeds?
Answer: In the sefer Birkas HaBayis (Einhorn)1 it is written that the bracha on pumpkin seeds is shehakol, and the reason for this is: 'for they are not fit to be eaten without drying, and it is not a fruit'.
However, the Keren L'Dovid2 disagreed and wrote that their bracha is borei pri ha'adamah: 'And with regard to pumpkin seeds .. which people are accustomed to eat in many places, it appears that this too depends on the above dispute between the Rashba and the Rosh, who disagreed with regard to the pits of tree fruits: for according to the Rosh, who considers them the essence of the fruit, to recite over them borei pri ha'eitz, so too here they are considered the essence, to recite borei pri ha'adamah; but according to the Rashba, who recites over them borei pri ha'adamah because they are not the essence of the fruit, so too here one recites over them shehakol, for the Magen Avraham already wrote in siman 204 se'if katan 7 that just as with borei pri ha'eitz, with something which is not the essence of the fruit we descend a level and recite borei pri ha'adamah, so too with a fruit of the ground we descend a level, to recite shehakol. However, since most of the early poskim hold like the Rosh, and he ruled like them in the Shulchan Aruch in the aforementioned siman .. therefore we have nothing but the ruling of the Shulchan Aruch, to recite borei pri ha'eitz on the pits of tree fruits, and consequently borei pri ha'adamah on the seeds of a fruit of the ground, and bedieved one has fulfilled his obligation with this even according to the Rashba, in accordance with what the aforementioned Magen Avraham ruled, that with something which is not the essence of the fruit one has fulfilled his obligation bedieved with the bracha of borei pri ha'eitz in place of borei pri ha'adamah — the same law applies here, that bedieved one has fulfilled his obligation even according to the Rashba with borei pri ha'adamah in place of shehakol .. therefore it appears that one recites over pumpkin seeds borei pri ha'adamah, and not as is written in the sefer Birkas HaBayis, to recite over them shehakol, comparing them to bitter pits which one sweetens by fire, and so too here they are not fit to be eaten except through drying — this is not so, for the fruit that is inside them is fit to be eaten even before drying, and the reason they dry them is so that their shell should come off; and even if they are better through the drying, in any case they are not included among bitter pits'.
Rav Chaim Naeh3 also wrote that one recites over them shehakol nihyeh bidvaro, and his reasoning is with him: 'And according to what has been said, it is possible that over pumpkin and watermelon seeds one recites shehakol nihyeh bidvaro, since these seeds are not eaten together with the fruit, like the pits of plums and apricots and the like; for a pumpkin is cooked and the seeds are separated from it, and likewise watermelon seeds are not eaten together with the fruit, for the way to eat them is by roasting them in an oven. Therefore it is not applicable to say of them what the Alter Rebbe wrote, that they are 'included in the fruit', but rather they are a fruit in their own right, and since they are not the essence of the fruit they descend a level, to recite over them shehakol nihyeh bidvaro; nevertheless, if one recited borei pri ha'adamah he has fulfilled his obligation'.
However, the Gaon R' Ovadia Yosef noted in Shu"t Yabia Omer: 'But Rav Avraham Chaim Naeh .. wrote the opposite, that even according to the view of the Alter Rebbe, who ruled like the words of Maran the Shulchan Aruch that over fruit pits one recites borei pri ha'eitz, nevertheless over pumpkin and watermelon seeds one recites shehakol .. and even though his reasoning is not compelling in practice, in any case they have already become accustomed to recite shehakol over pumpkin and watermelon seeds .. and one who wishes to recite l'chatchilah over pumpkin or watermelon seeds borei pri ha'adamah, like the view of Maran and most of our early Rishonim, certainly has great pillars upon which to rely'4.
And moreover, the poskim wrote that nowadays the reality has changed5, and certainly one must recite over pumpkin and watermelon seeds, according to all opinions, borei pri ha'adamah, even according to the view of the Rashba, as the Or L'Tzion wrote6: 'And likewise the pumpkin seeds that are sold nowadays: if one buys them from a store that sells seeds, he recites over them borei pri ha'adamah, for the seeds there came from a pumpkin that was sown especially for the seeds, and they have become the essence, like the fruit itself, and he recites over them the bracha of the fruit; for the reason that one does not recite over the seeds the bracha of the essence of the fruit is because they are only subordinate to the fruit, as the Rashba wrote .. if so, here, where the seeds are the essence, one recites over them like the essence of the fruit; and only with pumpkin seeds that were taken out of a pumpkin which essentially stands for the eating of the pumpkin do these seeds become like the rest of the fruit pits, whose bracha is shehakol .. And indeed, in a place where they sow the watermelons for the sake of the seeds, one recites over them borei pri ha'adamah, as we have said with regard to pumpkin seeds. And nowadays, the seeds found in the stores that sell seeds come from watermelons that were grown especially for the sake of their seeds, and over them one recites borei pri ha'adamah'.
And so it is written in Shu"t Be'er Moshe (Stern)7: 'And many people told me that they heard from other rabbonim that the bracha on the 'mendelach' is shehakol nihyeh, and that so it is written in seforim; and I answered that I have not found in any sefer that one should recite shehakol nihyeh, and by law, in my opinion, one recites borei pri ha'adamah, and I did not budge from my ruling. And now I see that, with the help of Hashem, my intent was correct, for I saw that the Gaon, author of the Keren L'Dovid zt"l, brought from the sefer Birkas HaBayis, which wrote to recite shehakol nihyeh over pumpkin seeds, and he zt"l disagrees with him .. and in my opinion, with 'mendelach' all agree that one recites borei pri ha'adamah, even the Rashba, who disagrees with the Rosh .. and my reason and rationale are with me, for all know that this trade in 'mendelach' is a large trade in its own right in all countries, and those who sow pumpkins sow them from the outset with them (the 'mendelach') in mind as well; and according to all opinions one recites borei pri ha'adamah in such a case'.
And so it is written in Yalkut Yosef8: Even though there are those who are accustomed to recite the bracha of shehakol over watermelon and melon seeds .., and so it is explained in Yalkut Yosef, first edition, volume 3, nevertheless, since nowadays the reality has changed and they are accustomed to sow watermelons for the purpose of the seeds .., it is more proper l'chatchilah to recite over the seeds borei pri ha'adamah, like the view of most of the Rishonim and Maran the Shulchan Aruch, for a more clarified bracha is preferable, and there is no concern in this at all on account of safek brochos lehakel'.
----
Notes:
1 Shaar 4 os 37, and note 41 ↩
2 OC siman 52 os 3 ↩
3 Ketzos HaShulchan siman 49, Badei HaShulchan os 18 ↩
4 vol. 7, OC siman 31 ↩
5 And so he wrote in vol. 8, OC siman 23, 8; and in vol. 9, OC siman 108, 95 ↩
6 And see in V'Zos HaBrocha (Mendelbaum) p. 373, in the notes and sources to the chart, os 21, and what he wrote there to explain in the name of the Gaon R' Shlomo Zalman Auerbach ↩
7 Shu"t vol. 2 ch. 14 din 10, and in the note ↩
8 vol. 2 siman 12 os 2 ↩
9 Netilas Yodayim U'Brochos, Hosafos, Hilchos Brochos se'if 2; and he explained there in note 2: 'For what Maran wrote, that if it is made fit by means of fire he recites shehakol — that is with a fruit that has a pit, where the essential thing is the fruit and the pit is incidental to the fruit. Therefore, if it is not eaten on its own but only by making them fit by means of fire, he recites shehakol; for they planted the tree only with the fruit in mind, and not with the pit in mind, and the pit becomes subordinate to the fruit [Rashba and Tur] .. However, as we have heard in recent years, they sow watermelons specifically for the sake of the seeds, and likewise they sow sunflower seeds specifically in order to sell them in shops, and they are not subordinate to an essential item; and according to this one must recite borei pri ha'adamah over them, now that the reality has changed' ↩
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