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Ein Mevatlin Issur Lechatchila in an Orchard

Orlah (1:6) | Yisrael Bankier | 10 hours ago

As we discussed in the previous issue, one is prohibited from gaining benefit from the fruit of a tree in the first three years of its planting. This prohibition is referred to as olrah. We have also explained that if orlah produce is mixed with other chulin (regular produce) of the same type, then a ratio of two-hundred chulin to the one-part orlah is required in order to annul and disregarded the orlah. If there is less chulin, then the entire mixture is prohibited.

The Mishnah (1:6) discusses a case where one planted a tree of orlah amongst other trees but is unaware of its location. The Mishnah rules that one is not allowed to pick any fruit in the orchard. If however one does harvest the fruit, then provided that there is a two-hundred to one ratio (or more) then the mixture is permitted.

The Tifferet Yisrael explains that prior to harvesting the fruit, since they are still attached to the ground, they are considered kavuah – each item in our “mixture” has a fixed location. Consequently, the laws of bitul (annulment) do not apply. In other words, while the fruit is still attached to the trees, ratios are irrelevant and all the fruit is prohibited. The Chachamim however prohibit harvesting the fruit as it would be tantamount to deliberately causing the nullification of the prohibited component – mevatlin issur lechatchila – which one is not allowed to do.

R’ Yossi however argues that one can even intentionally harvest the fruit even though it would cause the orlah to be batel (nullified). Why?

That Gemara explains that this mistake is different from normal accidental mixtures. Normally one would be very careful when planting trees in his orchard to mark out which one is orlah, as he runs the risk of causing the entire orchard to be assur. Since this case is so rare, R' Yossi maintained that there was no reason to make a gezeira.

The Tosfot R’ Akiva Eiger notes however that the Gemara (Gittin 54b) however has a slightly different version. The Gemara writes that, “R’ Yossi says, [regarding] one that harvested the fruit deliberately [the orlah] would be annulled in two-hundred parts to one”. The difference between the version in our Mishnah and the one in the Gemara is that while the Gemara discusses how to deal with one that deliberately harvested the fruit, it does not permit the practice in general. He understands that this is indeed Rashi’s understands of R’ Yossi’s position.

According to our version of the Mishnah however, R’ Yossi simply permits the practice. Furthermore the Rambam (Maachalot Assurot 15:25) rules that one is allowed to intentional harvest the fruit from this mixed orchard. How do we understand this position in the face of ein mevatlin issur lechatchila?

The Chazon Ish explains that according to this reading, olrah is already batel even prior to the fruit being picked. That is because on a biblical level it is annulled if it is in a minority whether it is attached to the ground or harvested. The position of Chachamim however is that \ a mixture of planted products is far more negligent, resulting more for carelessness or forgetfulness rather than an accident. Consequently, they instituted a decree that a mixture under these circumstance is assur.

Based on this understanding, it is not an issue of ein mavatlin issur lechatchia since according to the R’ Yossi it is already batel. The Chazon Ish continues that according to R’ Yossi one would not need to harvest the entire orchard to permit the mixture. Each fruit picked is already permitted as the issur was already batel.

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