God vs The Multiverse

Click here for God vs The Multiverse: a rational argument for the Existence of One God who intelligently designed one universe.

Wednesday, October 10, 2012

Half a Tree (Part 1: Facts)

In Vayikra 19:23-25, the Torah tells us about the institution of orlah.
כג) וְכִי-תָבֹאוּ אֶל-הָאָרֶץ, וּנְטַעְתֶּם כָּל-עֵץ מַאֲכָל וַעֲרַלְתֶּם עָרְלָתוֹ, אֶת-פִּרְיוֹ; שָׁלֹשׁ שָׁנִים, יִהְיֶה לָכֶם עֲרֵלִים, לֹא יֵאָכֵל.  כד) וּבַשָּׁנָה, הָרְבִיעִת, יִהְיֶה, כָּל פִּרְיוֹ קֹדֶשׁ הִלּוּלִים, לַיהוָה.  כה) וּבַשָּׁנָה הַחֲמִישִׁת, תֹּאכְלוּ אֶת-פִּרְיוֹ, לְהוֹסִיף לָכֶם, תְּבוּאָתוֹ:  אֲנִי, יְהוָה אֱלֹהֵיכֶם 
When you plant a new fruit tree in Eretz Yisrael, you are prohibited from eating the fruits it produces for the first 3 years.  These prohibited fruits are called orlah.

The first mishna in Orlah qualifies this halacha:
א,א  הנוטע לסייג ולקורות, פטור מן העורלה.  רבי יוסי אומר, אפילו אמר הפנימי למאכל והחיצון לסייג--הפנימי חייב, והחיצון פטור
If you plant a fruit tree for a different purpose then for growing fruit (i.e., as a fence or for the purpose of using its wood as beams), then the fruits are exempt from the prohibition of orlah, and you are therefore allowed to eat them.  (If you later change the way you relate to the tree, it becomes prohibited - see Rambam, 10:2).

There is a dispute between the Tanna Kamma (TK) and Rabbi Yosi (RY) about what happens if you plant a tree, half for fruits and half for a fence (i.e., the outer and inner halves):

TK: All the fruits are prohibited, as you can not say that the tree is entirely for a fence. 

RY: Only the outer fruits are prohibited, while the inner fruits are permitted. 

The Rambam (10:3) holds like RY and explains that the reason is "because the matter is contingent on the mind of the person who plants the tree."
נטע אילן וחשב שיהיה הצד הפנימי שלו למאכל והחיצון לסייג. או שיהיה הצד התחתון למאכל והעליון לסייג. זה שחשב עליו למאכל חייב בערלה. וזה שחשב עליו לסייג או לעצים פטור. שהדבר תלוי בדעתו של נוטע
We would like to first  understand the basic halacha that the prohibition of orlah goes by the mind of the person who plants the tree, and then give a svara for the machlokes.  What questions should we ask in approaching this area?


  1. What exactly does pasuk 24 mean when it says that in the 4th year the fruits will be holy for God? How does that manifest itself halachically?
    Is it fair to assume that whatever it means, before the 4th year it isn't considered holy/for Hashem?

    1. In the forth year after you plant the tree, the fruits are no longer orlah, but are called "neta revieh". The fruits are permissible to be eaten only before God in Jerusalem, which is the the same kedusha (holiness/restriction) as maaser sheini.

      You are correct that in the first three years the fruits do not have holiness, but are simply forbidden. The holiness exists only when there is a positive designation of being eaten before God, such as in the forth year.

  2. Both TK and RY agree that if the whole tree is planted for the beams or for a fence then the fruits are permitted. However, this is not so easy to understand. In the simplest way of looking at the prohibition of orlah it would seem that the any fruit produced by a tree in its first three years should be prohibited. What does it matter whether you planted the tree to be used as a fence or for its beams? Maybe we should better understand this more basic halacha before progressing to the more difficult case where half the tree is planted for a fence and the other half is planted to be eaten.

    1. Its funny how in pasuk 25 it says " and it will increase your produce". It seems to characterize it as if each fruit tree produces a certain amount of produce that adds to your "richness".
      So could a direction to answering your question be- if the fruit tree is only being used as a fence, and you're not interested in the tree as a fruit bearer then its not really functioning as a "producer" for you i.e. you don't view the tree as increasing your production.
      But this is a subjective criteria that is determined by the purpose and expectations by which the farmer plants the tree.

    2. sorry just to clarify my position:
      the issur is formulated in terms of achila from these trees- which is a specific functional relationship that you have with the trees i.e. you decided that the tree functions as producers of produce for you to use.
      Thus, the issur is not on the tree itself (since we are clearly permitted to benefit from it) but rather on this specific use of the tree that you have planned for it

    3. Yeah. Also, the pasuk that initially introduces the issur orlah says "kol etz ma'achal" loosely translated to "all of your food trees." So it does seem from these cases and the psukim that orlah is not simply a halacha in your trees but your trees that are designated for food or something like that. Perhaps a direction to the machlokus is to explain in two different ways how the issur orlah is formulated so that trees that are not designated for achila are petur. Under one of these conceptualizations when we make the jump to the half fence, half food case the food fruits will be mutar and under the other they will be asur.

  3. Possibile svara-2 ways of looking at an eitz machil which is the koveh for orlah.

    The objective way-namely that the definition of a tree is that it produces fruit to be eaten(and that's it). therefore half and half, the tree is an eitz machil because it produces fruit to be eaten and thus all are chayiv(similiarly in 100 percent for food). However when it is only for wood, the tree is not producing fruit to be eaten. We view the tree in terms of a chetza that its purpose is to produce fruit to be eaten.

    Second possibility-that the 'planter'noteh(lashon of the rambam)GROWS a tree for the purpose of the fruit to be eaten. In other words we take into account the whole process from the time of the planting till when the actual branches produce fruit which is going to be eaten. Therefore the tree can be divided into a non-eitz machil and a eitz-machil. The part which actualizes itself into producing fruit which is going to be eaten is eitz-machil, and the part which is only for wood is not eitz machil. This is a matter which is "dependent on the daas of the NOTEH" because he has an intent in growing eitz machil which actualizes itself in the growth process.

    The first perspective was a din inthe cheftza of the tree, the second is a din in the gavra hanoteh.

    This accounts for the seeming repetition in the rambam או שיהיה הצד התחתון למאכל והעליון לסייג. זה שחשב עליו למאכל חייב בערלה"-meaning this is the exact same case. But the chidush is that since in the tzurah of the tree the top branches didn't actualize the growth process from the eyesight of the noteh, so we might deem the whole tree as non-eitz machil(the first case we would divide the eitz because the branches are even, it's a contrast of inside and outside), the chidush is that we would still divide the tree into an eitz machil and non eitz machil even though from an eye sight perspective it seems like a non-eitz machil. Meaning it's a din the attitude of the gavra(in terms of the growth process), and not the superficial perspective of the gavra hanoteh.

    I hope I'm clear.

  4. To clarify-the subjective perspective is that the planter wants to grow a tree which will bear fruit to be eaten therefore the whole process is important to the planter and it is that which completes the process do we call eitz machil. Eitz machil is an entity be it the whole tree or some of the tree which exists from the perspective of the planter-the matter is dependent on him.

  5. I was thinking similarly for TK but a little different for RY.

    It seems that TK holds that the halacha of orlah is that the first fruits of certain kinds of trees are prohibited. Specifically, the first fruits of an eitz ma'achal are prohibited whereas the first fruits of a non eitz ma'achal are not. He is further holding that in the half food/half fence case the tree still has the identity of an etz ma'achal. I think this makes sense it would seem that the standard assumption is that one plants a tree for it to become an etz ma'achal. One can remove the status of an etz ma'achal by rendering it a fence but insofar as the planter still uses part of it for food it will not remove the tree's identity as an etz ma'achal. Since in the half food/half fence case the tree is still an etz ma'achal all of its first fruits are prohibited. It does not matter that some are being used as a fence since the issur orlah is chal on the first fruits of an etz ma'achal.

    However, perhaps RY holds that the halacha of orlah is that certain kinds of pairos fall are prohibited. There is an idea of pairos that you use for your food supply and pairos that you use for some other function such as a fence. RY learns that the issur orlah is chal on those pairos that you use for your food supply and those that are not are petur from orlah. In the half food/half fence case the inner fruits are not part of your food supply - they form the fence and as such are petur from orlah. The outer fruits are part of your food supply and will be chayev in orlah.

    Mio, I think I'm differing in my explanation of RY in that I'm not saying that the half food/half fence tree is half an etz ma'achal half a non-etz ma'achal. According to what I'm saying the tree is definitely an etz ma'achal and if you learn like TK that the halacha of orlah assurs the fruits of an etz ma'achal then all the fruits of this tree should be prohibited. However, RY does not learn that orlah assurs the fruits of an etz ma'achal but rather it assurs pairos that are part of your food supply. One tree can form two different kinds of pairos resulting in the two different dinim.

  6. It seems from the Rambam-the matter is dependent on the daas of the noteh-that what is koveh the issur orlah is an issue of the daas of the noteh. How would you explain the factor of the daas of the noteh playing a role here? Would you say that his daas establishes what is for his food supply and what isn't?

  7. Yeah. I think I would say that. Physically, the apples are the same on the inner part of the tree and the outer part of the tree. What makes half of them part of a fence and half of them part of the guy's food supply is his daas (i.e. the way he relates to them).

  8. I'm just thinking Matt according to what your saying in the tana basra-the issur orla is independent of whether the tree has a shem eitz machil or not. All that matters is that the issur orla is chal on that which is part of a food supply. What I mean to say is that the factor of eitz machil according to you doesn't seem to be playing a role here. What you have is a stam tree in which some fruit are chayiv in orla and some are not depending on whether it's part of a food supply or not.

    If you were to claim this tree as having the status of an eitz machil because it produces food for a food supply, then the whole tree should be chayiv in orla(basically the TK). But your not saying that, rather eitz machil is not a factor here.

    And so, my question is that the pasuk seems to indicate that the issur orla stems from a process of being noteh an eitz machil "when you come to the land and you plant an eitz machil and you are arlatem arluso..."

    I hope I'm clear. Thanks.

    1. Totally clear. I think I would agree that my explanation of RY would not fall in line with such an exact reading of the pasuk. That being said, I don't think it is impossible for RY to formulate the issur orlah in the way I have explained given the pasuk. The pasuk is describing the general situation of the Jews whereby the Jews will enter eretz yisrael and plant trees for their sustenance. The first fruits of these trees will be prohibited. I don't think that saying the issur orlah is chal on certain types of fruit is such a radical deviation from the plain pshat in the pasuk although formulating the issur as being chal on a eitz ma'achal (as TK) is more smooth with the reading of the pasuk.

      Overall, I think I'd still prefer to stick with my original explanation of RY despite the non-exact reading of the pasuk since I don't really see the concept of a tree that is half an eitz ma'achal and half a non eitz ma'achal. I can conceptualize the existence of two different kinds of trees in the world - eitz ma'achal and non eitz ma'achal. It's difficult for me to understand what a half/half tree would be.

    2. Matt:

      I actually came up with a sevara that I now see is very similar to yours. However, I think there is one more thing you have to account for. If the issur of orlah is chal on a fruit that you relate to as a food, why doesn't it automatically become assur the moment you pick it off the tree to eat it? In other words, in the case where the tree is half and half, according to RY you can eat the fruit from the half that is functioning as the fence. Why doesn't the fruit become prohibited as orlah the moment you pick it to eat it? The answer to this, I believe, may answer the question someone raised on how this shita flows from the passuk.

      I will not publish my answer just yet to let you respond...

    3. Jeff
      What were you thinking? Maybe comment on post 3.

  9. You guys have many good approaches and svaras here. We have not responded for two reasons.

    Firstly, we think it is good for you guys to discuss and work towards a svara based upon each other's feedback. We do not want to interfere with this process by putting in our input at this point.

    Secondly, as part of the shiur is to focus on methodology, we want to clearly delineate between the different stages of developing a svara. The first stage (this post) is to get comfortable with the facts and raise questions. We have no problem with you guys discussing further at your own pace, but we will generally comment on each stage in its place. Thus, feel free to re-present your approaches and svaras as they become relevant to the current post.


In the words of Agur bin-Yakeh: "We welcome all comments, questions, contributions, and critiques - but if you insist on posting anonymously, PLEASE use a pseudonym rather than posting as "Anonymous," since this makes it much easier to carry on a normal discussion. Thank you!"