Cutting Down Fruit Trees

Sheviit (4:10) | Yisrael Bankier | 2 years ago

The Mishnah (4:10) discusses the time from which one is allowed to cut down a fruit tree during Shemittah. The starting point, while debated, is early in the fruit's development. After the fruit develops to a point where maaserot apply (onat maaserot) then one is allowed again to cut the tree down. We will try to understand this Mishnah.

Normally, one is prohibited from cutting down a fruit tree. The Mishnah must be understood as being in the context where it is permissible, e.g. where the value of the wood greater than the fruit it produces or the tree is causing damage to his property. In this case then, the issue with cutting the tree is isolated to Shemittah (see Tifferet Yisrael).

The Bartenura explains that the Torah instructs us to eat shemittah food and not destroy it ("le'ochlah" ve'lo le'hefsed). Consequently, cutting the tree when the fruit are in their early stages of development, prior to being edible, would be equivalent to wasting them.

The Bartenura however provides an additional explanation. The Torah declared shemittah produce hekfer (ownerless). Effectively destroying the fruit at this early stage would be considered stealing from the public. While the Rambam provides this explanation in his commentary to the Mishnah, in the Mishnah Torah, he explains the law like the first understanding.

The Tosfot Yom Tov []{dir="rtl"}however finds the second explanation difficult since the Gemara (Pesachim 52b) explains that the "le'ochlah" ve'lo le'hefsed is the reason. The Tosfot Yom Tov suggests that while the Rambam in the Mishnah Torah is providing the basis for the law - "le'ochlah" ve'lo le'hefsed -- in his commentary on the Mishnah he provided a "ta'am" (a way to relate to the law). In other words, why did the Torah only want us to eat shemittah produce and not waste it? The reason is because doing so would be considered stealing from the public. Importantly, the Tosfot Yom Tov stresses that there is no legal difference between the two explanations.¹ Nevertheless, he concludes that the "ta'am" is unnecessary. The fact that the shemittah produce is important is reason enough not to waste them.

The Mishnah Rishona however explains that the Rambam was compelled to bring the reason of theft. Recall that every year there is a prohibition to cut down a fruit tree. This is based the pasuk "and from it you shall eat and not cut down". We addressed this prohibition be explaining that the case in the Mishnah is in a context where the prohibition does not apply. If that is the case, why should the "le'ochlah" ve'lo le'hefsed be considered stricter? Consequently, there must be another reason - theft. Indeed, this is how the Mahara Fulda understands the Rambam. In other words, despite the fact that there may be justifications to cut the tree down that would equally apply during shemita, since the tree is hefker, your gain cannot come at the expense of the pubic. Nevertheless, the Mishnah Rishona concludes that there is a difference with shemittah since the produce has kedusha. Even if ordinarily, one would be able to cut the tree down, during Shemittah we would treat the case more stringently.

The Chazon Ish (19:27) also understands that there is a substantial different between the two different reasons. The reason why the Rambam explains that the law is based on the issue of gezel, is because "le'ochlah" ve'lo le'hefsed does not apply at that stage of development. In other words, according to Rambam in his commentary to the Mishnah the issue of waste is based on it useful now and not what it could be. When the Rambam however provides "le'ochlah" ve'lo le'hefsed in the Mishnah Torah as the reason for this law it would appear that he retracted from this understands of hefsed.²

¹ In contrast see the Shoshanim Le'David who explains that the two reasons address two different cases. It is for this reason that the Rambam provides both reasons to cover both cases.

² The Chazon Ish explains that based on this understanding, that it is not considered hefsed at that stage, if an immature figs fell from the tree, one would allowed to eat it.

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