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Sunday, October 21, 2012

Half a Tree (Part 4: More Svara)

We explain the conceptual basis for the machlokes between TK and RY about how the prohibition of orlah is formulated:

TK:  When you have a tree which is a fruit tree relative to man, then its fruits are subject to the prohibition of orlah.  If so, there's no such thing as a half of a tree.  A tree is a singular entity.  If you plant a tree, half for fruits and half for a fence, it is either entirely a fruit tree or not a fruit tree.

It would seem that since the inherent nature of the tree is that it produces fruits, and you do want its fruits (albeit only on half), it is defined as a fruit tree and all the fruits are therefore prohibited.  It is only excluded from being a fruit tree if you completely remove it from being defined as a fruit tree relative to you, by planting it for the exclusive purpose of something other than fruits.

RY: The law of orlah is not inherently one of trees, but is one of fruits.  Namely, fruits which are produced by the מלאכת האדם (human productivity) of planting fruit trees are included in orlah.  Wild, spontaneous fruits are not.

If so, when a person plants a tree, half for fruits and half for a fence, then the fruits which emerge on the "fruit side" are resultant from the human productivity of planting fruit trees and are included in orlah.  However, the fruits which emerge on the "fence side" are not.  They are a spontaneous, accidental result of fence building.

The main idea is that since, according to RY, we are not defining the tree in its own right, but are looking at the fruits of the tree, there is no problem in looking at half of the fruits of the tree in one way and the other half in another way.  This is in contrast to the TK who views orlah as being predicated on the tree itself, and is therefore forced to define the entire tree either as a fruit tree or as something else.

15 comments:

  1. This distinction between the tree or the fruits being primary, is similar to the one given by a few guys through the posts.

    However, we think that the concept of two different types of fruits (domesticated vs wild) allows us to satisfactorily answer Jeff's question on Matt from post 1: Why don't the fruits become prohibited after you pick them off and decide to eat one?

    We answer by saying that they still retain their identity as wild fruits even if you decide to eat one. Only if you permanently change your intent with respect to the tree or fruits does it become orlah.

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    1. I agree with you and it is the same sevara as I had thought. However, it is interesting, though, that the sevara includes the concept of planting. Yet, you can change the status of the fruit merely through daas (it would seem) without the need for a new masseh netiah. The Rambam on the sugya has an interesting phrase in this case. He says that at any point in the process if his intention was for fruit, then it's considered orlah, because the machshava of chiyuv is mixed in.

      Thoughts?

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    2. We have an idea, but we'd like to hear your thoughts or anyone else's first...

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    3. It's a strong question. I've been thinking about it and unless I'm misreading the Rambam, it seems that you could have a case where I plant a tree for a wall, pick some fruit from it, hand it to my friend (all the while maintaining my wall intention), and in the middle of his eating change my intention to machshavus chiyuv and oser the fruit.

      I'm hesitant to say that the Rambam agrees with this case.

      Am I misreading the Rambam?

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    4. Probably. It would seem to us that once you pick off the fruit, it would be too late to switch.

      But that too demands a clear explanation.

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    5. I would think so too.

      It seems to me that the question answers itself. If the fruit is still attached to the tree, then the question of machshava without action falls away. No matter what there will always be the action of picking the fruit from the tree. this would then be the "new maaseh n'tiah".

      There only remains explaining the nature of the issur such that removing the fruit ends the scope of the farmer's daas.

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    6. We would like to rephrase/strengthen Jeff's question and respond to Michael's point.

      Case (a) If you plant as a fence and change your mind to fruit tree, fruits are orlah.

      Case (b)If you plant it as a fruit tree and change your mind later to fence, fruits are orlah.

      As long as you have machsheves chiyuv (i.e. thoughts for fruit tree) at some point, you are chayiv (seemingly, even in the middle would work).

      The question is mima nafshach: Do you define the fruits based upon the time of planting or the time of picking? If at the time of planting, case (a) shouldnt be orlah. If the time of picking, case (b) shouldnt be orlah. What is the svara to say that thoughts of fruit tree mixed in at ANY time suffice for defining the fruits as orlah.

      Regarding Michael's point: the Rambam doesnt say anything about a maaseh being needed. The focus seems to be on his da'as. Also, what would you say about where he plants and picks with daas as a fence, but has a changeover to being for fruit in the middle?

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    7. I would say that the issur is chal on the fruit, but only in a situation where the fruit emerges from a tree that functions to produce fruit. The chalos shem pri (with regards to orlah) does not emerge from a tree (or part of tree) that functions as a fence. In other words, you can't produce fruit (pri) from a fence. Once you have picked the fruit off the tree, however, it's chalos shem is chal and cannot be changed afterwards. The reason that the machseves chiyuv is mechayev at anytime may be related to the fact that fruit is inherently related man as a pri and he needs specifically to exclude it in order to do so. Once he relates to it (at any time) as a pri, he cannot go back and exclude it afterwards.

      I understand that this can be refined further, but I believe this may be the basic approach.

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    8. Agreed. Maybe it can be refined as follows:

      The din of orlah is chal on fruits which come under man's productivity. On the other hand, wild fruits are excluded. "Wild" is an absence of meleches ha'adam. As long as man's productivity is involved at any stage (i.e. he relates to the tree as a fruit tree), then there is no absence and the fruits aren't wild fruits. They are therefore orlah.

      The main idea is that since they are only exempt when there is absence, any "mixture" of machsheves chiyuv will suffice to remove the absence. This is only until they are picked. Once they are picked, you can no longer render them as coming under meleches ha'adam.

      Jeff, is this in line with your idea.

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  2. It would seem that since the inherent nature of the tree is that it produces fruits, and you do want its fruits (albeit only on half), it is defined as a fruit tree and all the fruits are therefore prohibited. It is only excluded from being a fruit tree if you completely remove it from being defined as a fruit tree relative to you, by planting it for the exclusive purpose of something other than fruits.

    I hope this is not a klutz kasha, and I'm just completely missing the point but I'm not sure why you can't just say the opposite-that it is a non-eitz machil, or fence tree, because your'e growing half of it for a fence. It is a fence relative to the planter as well, so why not define it as such since some of the tree is for fence and you do use it for fence.

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    1. Actually, you're adding in the fact that the inherent nature of the tree is to produce fruits, and not to merely produce fence. I think that is what I was missing.

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    2. Correct. We would think that one's assumed intent when planting a fruit tree is to use it for fruits, unless otherwise declared. It is an unusual case to plant a fruit tree for some other purpose such as a fence, and as such, requires specific intent to remove it from its natural designation as a fruit tree.

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  3. For RY:

    You seem to be saying in one paragraph that is is the fruit which is a result of meleches haadam in producing a fruit tree. "Namely, fruits which are produced by the מלאכת האדם (human productivity) of planting fruit trees are included in orlah"

    Then you say in the next paragraph that it is fruits which result from the meleches haadam to produce fruits stam. "...then the fruits which emerge on the "fruit side" are resultant from the human productivity of planting fruits and are included in orlah."

    I'm not sure if I'm missing something, or you're saying the same thing in both paragraphs. The second paragraph makes more sense to me, because within RY we don't care that the tree is a FRUIT TREE. We're not defining the tree within his shita, all we care about is the character of the fruit,namely that it emerges from a human melecha(which is the fruit side of tree) to produce fruits.

    I hope I'm being clear.

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    1. We mean the same thing in both paragraphs. We added an extra word "tree" to help clear up any confusion.

      What we mean for RY is that an intelligent human being plants fruit trees in order to eat the fruit, and that fruit is distinguished from unintended wild fruit that grows on its own.

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