During the first three years after the planting of a fruit tree it is forbidden to eat from its fruit. This prohibition is referred to as orlah and is the topic of the next masechet. The first Mishnah opens by explaining that if one plants a fruit tree intending not to eat from its fruit, but instead for it to act as a fence or to use its wood than it is exempt from the prohibition of orlah. Note that the Tifferet Yisrael explains that the trees must be planted in a manner such that it is visually recognisable that they were planted for this purpose.
What if one changed their mind during the three year period and decided that they wanted the trees for their fruit? The Tosfot R’ Akiva Eiger explains that the prohibition of orlah would apply, with the three years being counted from the tree’s planting. Interestingly if one initially grew the tree to eat the fruit, but then changed their mind and wanted the trees their wood then the prohibition of orlah remains.
Recall that the fruit produced by the trees during their fourth year is referred to as neta revai and shares many similarities with maaser sheni (e.g. it must be eating in Yerushalaim). R’ Akiva Eiger adds that if one changed their mind to eat from the fruit during the fourth year then the laws of neta revai would not apply to the fruit. The reason is that orlah and neta revai are tied to together. Since the fruit did not have the law of orlah, the fruit of the tree do not have the law of neta revai.
The Bartenura explains that the source of the exemption described in our Mishnah is based on the pasuk which is the source of the prohibition: “When you shall come to the land and you shall plant any food tree, you shall treat its fruit as forbidden; for three years they shall be forbidden to you.” The implication of the pasuk is tree that are planted for food are covered by the prohibition. If however they are planted for wood or to be used as fence then they are exempt.
An interesting question is raised in the Yerushalmi. What would the law be if the tree was planted for the purpose of a mitzvah? The example that is used is an etrog tree that was planted for mitvah of the four-species on sukkot. Rav Huna explains that the law of orlah would still apply. When planting for the tree to act as a fence, one is equally interested in the wood and fruit that is grown. When planting the etrog tree, unlike the exceptions listed in our Mishnah, it was specifically planted for the fruit product. Consequently it would appear that when the Torah was referring to “food tree” it was including those things that were planted for the food product but not necessarily to eat it.
The Rosh, Tur and Shulchan Aruch rule that if one plants a date palm specifically to grow a lulav then it would also not be exempt from the prohibition of orlah. The difficulty raised is that the lulav is not the food product of the date palm and according to the above reasoning the date palm should be exempt from the prohibition.
The Mishnah Rishona explains that the Yerushalmi had derived the inclusion of trees that are grown for a mitzvah from the above quote pasuk – “for three years they shall be forbidden to you (lachem).”
The Derisha(YD 294: 7) however brings a number of different reasons. First he explains that some people wish to explain that the Midrash also refers to the lulav as a “fruit” – “the lulav has a “taste” but not smell…” He however feels that this explanation is a bit of a stretch.
The Derisha instead first answers that we have misunderstood Rav Huna’s reasoning above; the focus should have been on the first part of his statement. In other words the exemption is only when one plants in a manner similar to one who planted for a fence – he equally wants the wood and the fruit. In the case however when one plants for the purpose of growing lulavim, a minor part of the date palm, this exemption does not apply.
Finally he prefers to explain that really the lulav is the fruit of the tree in this context. It may not be fruit in the colloquial sense, yet it is nonetheless a product that is grown on the tree. Consequently it is different to the case where on grows a tree from the purpose of using it as a fence or to use its wood and is therefore covered by the prohibition of orlah.
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