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Sunday, October 14, 2012

Half a Tree (Part 2: Questions and Methodology)

In approaching this area, we have two questions:

(1) Why is it relevant whether you plant a fruit-tree for fruits or for a fence?  Either way, it is still a fruit tree and should come under the prohibition of orlah. What insight does this give us into the nature of the prohibition of orlah?

(2) In approaching the machlokes, the opinion of RY seems especially difficult to define.  How can a tree be half chayav and half pattur in orlah?  This seems to be an awkward formulation.

Which of these two questions should be approached first?

Often, one has a tendency to jump right to defining the machlokes; however, this is frequently a methodological error. Without first understanding the basic law in the area, that orlah depends upon one's mindset regarding the tree, it seems premature to define RY's position or the machlokes as a whole, which are detailed applications of this basic law.

Let us therefore first try to answer question (1) and then move to the second question.

26 comments:

  1. The reason why the mindset is important is because the tree produces fruit which is eventually going to be eaten in yerushalim. The first 3 years that fruit is orlah, then in the 5th year it goes to yerushalim. Thats the process the torah prescribes that the eitz machil has to follow in order for it to establish an issur orlah.

    If a certain part of the tree is not going to produce fruit to be eaten then there should be no issur orlah.

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    1. This approach is more philosophical than halachik. The idea is to derive a definition regarding the prohibition of orlah from this halacha.

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    2. I always thought philosophy is the perfection of the mitzvah. Here I'm explaining the halachik formulation of orlah, namely that it comes from eitz machil in which the EM eventually produces food to be eaten in yerushalyim. I'm not sure if I understand how what I'm saying is philosophy.

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    3. Perhaps the purpose of the prohibition of orlah is in order to ultimately bring the fruits before God in the forth year. Nevertheless, the halacha still has to define the entity upon which the prohibition exists.

      If the entity is simply a fruit tree, then there would be no place for a person's mindset to play a role. What you need to provide is a definition of the entity upon which the prohibition applies, that allows the entity to be distinguished based upon the planters mindset.

      It is not enough to explain why it might make sense for the Torah to want to use this type of definition. Our "job" is to first understand the definition the Torah used, and only afterwards speculate as to why it might have chosen that particular definition.

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    4. I think the difference between us is perhaps a methodological one: I'm trying to explain the facts of the mishnah by asking what is the koveh for an eitz machil such that either a) you can have half and half or b) not have half and half. And therefore I'm saying that the daas of the notea is kovea what is an eitz machil and what isn't(and thus the ensuing shitos). Your'e saying that what needs to be defined over here is the most fundamental question of the masechta namely what is the 'issur orla' such that daas effects and therefore you have half orla and hal not orlaf, or daas does not effect it and therefore you can never have half half and half, only 100 percent orla.

      As I asked matt on the previous post; it seems like the torah is saying that the ultimate kovea for the issur orla is what is considered an eitz machil as the pasuk says "when you come to the land and you are notea an eitz machil you shall orlatem orlaso"... Meaning we could only understand what would be orla if we understood what makes something an eitz machil(which is ultimately the gorem of the issur orla.)

      I hope I'm being clear. Thanks.

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    5. Agreed. But to say that the definition of an eitz machil is that which will eventually be eaten in Yerushalayim is not really defining an eitz machil, but is explaining why the Torah would choose a certain definition of eitz machil. First, we must define eitz machil, independent of what it will be used for later.

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  2. Or you could say that the reason why intent is important is because the planter has in mind to produce a tree which has eitz machil characteristics and non-eitz machil characteristics. His intent establishes what part of the tree is an eitz machil and which part is not. The eitz machil part is gorem an issur orlah, and the non-eitz machil part does not cause an issur orlah.

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    1. This approach is more halachik. However, try to make clearer why his intent in relevant in the definition of an eitz machil. An apple tree has eitz machil characteristics regardless of his intent.

      Also, for now it's a good idea to ignore the case of the half/half tree. Let's focus on the simpler case of a fruit tree planted as a fence.

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  3. I was saying in the comments on the previous post that the NOTEH is growing an eitz machil that is; he wants to grow a tree which self actualizes itself into producing fruit which is going to be eaten. This is not the same as saying that the tree would be an eitz machil because it produces fruit to be eaten-in this case all the fruit would be chayiv in orla.

    What I'm saying is, that the gavra hanoteh determines what is considered eitz machil and what isn't. I'm making the claim that a tree can be both eitz machil and non-eitz machil; it all is dependent on whether that part of the tree GROWS UP AND PRODUCES FRUIT TO BE EATEN, as was the intent of the planter when he wanted to grow the tree-to self actualize itself. Some parts of the tree do that, and some don't.

    I think the rambam is only saying his reason-that it is dependent on the daas of the noteh-within the tana basra who he paskens like; I don't think the TK would agree that it is dependent on the daas of the notea.

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    1. Dont they both agree that if you plant it for a fence, then it is not prohibited? Doesnt this imply that all go by the daas of the gavra? How can you explain this without the gavra? Doesnt "fruit to be eaten" mean fruit which the gavra intends to eat?

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    2. Does it need to be explained without the daas of the gavra?

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    3. No. Our question was on Mio's comment. See his last paragraph.

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  4. It seems like the essential point is that it's a fruit bearing tree that the guy planted. The halakha is not setting up a category of food like milk or meat but rather defining a maaseh of a Jew in Eretz Yisrael. This is a type of farming and we are being instructed as to how to relate to the plant. Since it is an idea in farming, the guy's intent is tied to his action - and therefore the definition of the tree.

    I believe that I could put this a little more philosophically and explain the relationship between the farmer and the tree but this is at least the halakhic mechanism in play.

    Everyone agrees that his daas defines the nature of the tree. therefore a pure fence-tree is patur.

    The machlokes is rooted in whether or not his daas can divide the tree which requires a more nuanced idea of the daas relationship between the farmer and the tree.

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    1. Good approach.

      Try to define a little more clearly the difference between "setting up a category like milk or meat" and defining a tree based upon the guy's action and intent.

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  5. Another possibility:

    Perhaps the definition of orlah, such that the daas of the planter can make a difference, is that orlah is essentially growth from the earth with an alternative utility-meaning it's fruit that can't be eaten, therefore it's essential identity has been lost(the purpose of fruit is to be eaten), and thus merely growth from the earth(with some utility)

    How does the planter relate to that growth ie; what is its utility?

    Is it to create a functional eitz machil, meaning the growth is there and it is ultimately food(in the descriptive sense); therefore it allows for part of the tree to function as an eitz machil-a food producing tree(as the planter had in mind that half of it should have the purpose of creating food) Therefore the tree could function as an eitz machil(half of it) and some of it will not function as an eitz machil(it is only for the branches)

    Or is the utility of the growth(in the planters mind) to give the tree an identity of an eitz machil. That is, the whole identity of the tree is that it produces fruit-in this case even if half of the tree doesn't function to produce fruit it still partakes of the of the singular identity of the tree. What I mean to say is that while although half of the tree doesn't function to give fruit, thus we could say that that part merely has an identity of eitz(and not eitz machil),it's included in the overall identity of eitz machil(as eitz machil is both TREE stam and TREE that produces fruit.) There can only be one identity for a tree, therefore eitz machil will be the identity because it is all encompassing.(And therefore even the fruit that comes out of the part which is for branches will be orlah)

    This would not be the case by 100 percent of the tree for wood; the identity of the tree is not that it produces fruits its identity is merely eitz balama, as it is grown merely to produce wood . There is no part of it which is identified as food bearing.

    I hope this is clear.

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    1. We don't really follow. Please try to simplify. Please focus your explanation to answering question (1) as per the methodology explained in this post. We will leave question (2) for next post.

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  6. The descriptive nature of orlah is that it is fruits of the first 3 years that can not be eaten forever. That's a problem because the main point of food is to eat it. Rather the essential nature of orlah is that it is growth(not fruit-because it is not fulfilling its role as food) from the ground with an alternative utility(because it can't be eaten.) The question is, how does halacha formulate the alternative utility of this entity(the growth from the ground) from the planters perspective such that these 2 shitos follow. There are two things this growth can be doing such that in one situation it makes the whole tree chayiv in orlah even though it's half and half, and in the other situation that which is for food is chayiv in orla and that which is not for food is not chayiv in orla. This is my attempt to deal with the basic question of what orla is such that it can depend on the planters daas.

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    1. Orlah is prohibited in any benefit whatsoever. According to your reasoning, it shouldn't even be defined as an object at all!

      Secondly, we're trying to define what shem orlah devolves upon (the prerequisite charachteristics of the object), not what it is defined as after it becomes orlah.

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  7. Orlah is prohibited in any benefit whatsoever. According to your reasoning, it shouldn't even be defined as an object at all!---Meaning I'm defining it as an object of alternative use, while we can't we even use it at all because is is assur bahana?

    Secondly, we're trying to define what shem orlah devolves upon (the prerequisite charachteristics of the object), not what it is defined as after it becomes orlah.---I'm not really following this statement, can you just clarify it.

    Thanks.

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    1. 1) Correct

      2) What type of object becomes orlah. Not what the object is defined as after it already is orlah.

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    2. Perhaps you could say that the shem orlah is chal on a fruit which is part of the objective of the growth process. According to the shita that half and half only 50% is chayiv the objective of the growth is utilize certain fruits(to be eaten) and those are the ones which the issur orla is chal on. Therefore when none are to be used the tree is completely patur, and the opposite for a tree which is purely for food purposes.

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    3. It seems like your on a good track. Maybe explain what you mean by "the objective of the growth process".

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    4. two possibilites: a) the objective of the growth process is produce particular fruit for eating purposes-in that case whatever is for food is chayiv and that which isn't is not chayiv. b)the objective of the growth process is produce a category of a fruit which is to be eaten. Therefore when this category exists-which will happen in half and half, since some of the fruits are for eating purposes, all are chayiv-the category exists once you want at least one of them to eaten. However when it is all for wood purposes the category of 'fruit to be eaten' never comes about.

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    5. To clarify (b)-the objective of the growth of the tree is produce a category of a certain type of fruit which is supposed to be eaten(not particular fruits to be eaten). Therefore all of those fruits which grow from the tree fall into that category(and the issur orla is chal on those fruits). However not all of them will actually be eaten, only some will. If none of them were to be eaten(as in the case of the tree which is all for wood) it would be an empty category.

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  8. Has my comment been overlooked?

    I was hoping for some feedback to see if I was on the right track in my thoughts.

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