One is not allowed eat fruit from a tree during its first three years after planting. This prohibition is called orlah and is learnt from the pasuk, “When you shall come to the land and you shall plant any food tree (etz ma’achal), you shall treat its fruit as forbidden, for three years they shall be forbidden to you” (Vayikra 19:23).
In the first Mishnah we learn that if one planted a tree to act as a fence or for its wood, then the prohibition of orlah does not apply.
The Bartenura explains that since the Torah specifically stated “any etz ma’achal” we learn that only trees planted for its fruit fall under the prohibition of orlah. Last cycle (Volume 7, Issue 42) we discussed the question of whether orlah applied to a tree planted for the purpose a mitzvah, e.g. a lulav. In this issue however, we will analyse the source of the exemption that is the focus of the Mishnah.
The Chidushei Mahariach questions how the etz maachal could be the source of this law. “Food tree” could simply be referring to the type of tree and not its intended purpose. Had the pasuk stated “any tree for eating” then it would have been simpler to understand. He suggests that perhaps the source of the law is the preceding word “kol” – all or any. On a closer reading this word is superfluous. He suggests that perhaps the word “kol” should not be understood as any food tree, but rather to mean the entire food tree. In other words, the entire intention of the tree was for consumption.1
Another understanding can be found in the Chazon Ish. The Chazon Ish explains that the exemption of the Mishnah would apply even if one also wanted to eat from its fruit. The Chazon Ish explains that his appears to be the understanding of the Bartenura and Rosh. He continues that this is only if the main intention was for its wood. He continues that this is even though the act of planting is not what exempts the tree. We find that if one changes his mind at a later point then the prohibition of orlah would apply (see Vol. 7 Iss. 42). Nevertheless, since the tree at this point is maintained as either a fence or for producing wood it is not call an etz maachal. We find that its ongoing intended use defines the tree.
One might ask, how can one cut beams from a fruit tree if there is a prohibition against cutting down fruit trees – baal tashchit. The Mahariach cites the Yerushalmi that appears to disagree with our Mishnah as it does not cite the use of the tree for beams as one of the alternate uses. He suggests that since there exists this prohibition of baal tashchit, “batla daato” – his intentions are disregarded. How then do we understand our Mishnah?
The Mahariach suggest that perhaps the case is where the value of the wood is greater than the value of the fruit. In such circumstances the prohibition against cutting down the fruit tree does not exist. The Chazon Ish suggest other possibilities which would avoid violating this prohibition. For example, either the intention was to prune the branches in a manner that would not destroy the tree. Alternatively, one’s intention was only to cut the wood once the tree dried out. The Mahariach adds one more case. He suggests that perhaps if one’s intention when planting the fruit tree was for its wood then there is no prohibition of “baal tashchit”.
1 The Mahariach admits that the we learn in the next Mishnah a different law is learnt from the word “kol”. There we learn that even if a Nochri plants the tree, the law of orlah applies. In that context, the word kol is understood to mean “any”. Nevertheless, he suggest that the word kol could imply both these laws.
One question that may be asked is how R’ Yossi derives his position according to this understanding. R’ Yossi maintains that even if one intends that the inner half of the tree be for food while the outer half acts as a fence, then orlah would only apply to the inner half. In that case the “entire” tree is not intended for consumption yet orlah applies partially.
A simple solution is that it is indeed learnt from the word kol but with the consistent meaning of “any”. In other words, anything intending for eating is under that prohibition of olrah, excluding anything else that is not.
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