Planting an Orlah Nut

Orlah (1:9) | Yisrael Bankier | 2 years ago

This week we began masechet Orlah, in which we learn that one is not allowed to derive any benefit for the fruit from a tree in the first three years of its planting. We also learnt however that the prohibition specifically applies to the fruit, but not the wood of the tree. The Mishnah (1:9) records that R' Yossi taught that one is allowed to plant a branch from an Orlah tree, but not the nut because it is considered the fruit of that tree. We shall try to understand this Mishnah.

The Bartenura explains that R' Yossi would agree that if one did indeed plant the nut, then the tree that grew is nonetheless permitted. The reason is that this case would be considered ze ve'ze gorem. Since the resulting tree required both assur (the forbidden nut) and mutar (the permitted ground) components, it would be mutar.

Rashi also appears to maintain this position. The Gemara (Avodah Zara 49a) cites R' Yehuda that taught the following. Rav explains that R' Yossi would agree that if the seed was planted, and a branch from the tree was grafted to a regular tree, then that which grew would be mutar.

Rashi brings two different explanations. The first is that Rav is listing a number of cases, one of which is that if the seed was planted, then that which grew is mutar based on ze ve'zeh gorem. The second explanation is that it is one case, and the case is where a branch from a tree that grew from the olrah seed was grafted to another tree. Rashi however finds the second explanation difficult considering that the resulting tree should already be mutar due to ze ve'ze gorem, even before a branch was grafted to a mutar tree.

The Tosfot (s.v. she'im) however explain that if one planted the orlah nut, then the tree that grew would not considered ze ve'ze gorem. The ground and nut are acting in different manners. Ze ve'ze gorem is only if the both the assur and mutar parts are contributing in the same way. For example, if a branch from a prohibited tree was grafted onto a permitted one. In that case both the tree and branch contribute in the same way to produce the fruit. Consequently, the fruit would only be permitted according to Rashi's second explanation -- if a branch from that tree was grafted to another permitted tree.¹

The Tosfot however continues that one might ask that we have learnt that if one planted tevel or maaser sheni, that which grows is permitted. If a tree that grows from a prohibited seed is not considered ze ve'ze gorem, then one would expect that that which grows should be considered tevel. The Tosfot answer that there is a difference between orlah and tevel. For orlah, the prohibition is against deriving any benefit -- issur hana'ah. That which grows from a planted issur constitutes benefit and is therefore forbidden. For tevel however, the prohibition is against eating it. Consequently, there is no need to prohibit that which grow,s since consuming it is not consuming the original prohibited product.

Interestingly we find the debate between Rashi and Tosfot continue in the mefarshei Yerushalmi. The Yerushalmi records a debate regarding the tree that grew from the nut. Kahana maintains it is permitted whereas Chezkiya argues it is forbidden. The Mahara Fulda explains that the debate is whether ze ve'ze gorem is permitted or forbidden. Importantly, this appears to be consistent with Rashi's opinion that this is a case of ze ve'ze gorem.

R' Chaim however explains that Chezkiya prohibits the tree since the nut is an issur hanaah. This appears to be consistent with the Tosfot, that this case is not one of ze ve'ze gorem and the issur hanaah continues to apply to that which grows from the seed. How then do we understand the opinion of Kahana who maintains that the tree is permitted? R' Chaim explains that Kahana maintains that since the seed disintegrates, that which grows is considered something else entirely and therefore permitted.

¹ See volume 13 issue 44, where we discuss the Tifferet Yaakov's even further restricted definition of ze ve'ze gorem in connection to orlah.

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