Maaser Sheini - Chapter 10

This is speaking about plants within Eretz Yisrael. As mentioned above, according to the Rambam, the laws of neta reva'i do not apply in the Diaspora (Kessef Mishneh).

Since the Torah mentions them in direct sequence with each other, we assume that it is referring to the same type of trees in both instances.

In his Commentary to the Mishnah (Orlah 1:1), the Rambam explains that this concept is alluded to by Leviticus 19:23. When that verse states the prohibition against orlah, it says: "When you plant a tree of which you eat...," i.e., for the prohibition to apply, one must have the intent of partaking of the tree's fruit.

The Shulchan Aruch (Yoreh De'ah 294:23) states that it must be evident that the owner did not desire to grow the trees for their fruit, e.g., he planted them to close together to grow fruit properly.

The three years of orlah are counted from the time the tree is planted regardless of when he thought of using it for food (Radbaz).

Similarly, the prohibition of orlah does not apply, because he did not have the intent of growing it for its fruit until the three years in which the prohibition of orlah would apply were completed.

The converse is also true. Even when the lower portion is prohibited because it was intended for food and the upper portion is permitted, because it was intended to be used as a hedge, we do not say that the lower portion causes the upper portion to be forbidden. Even though it grows from it, it remains permitted [Shulchan Aruch (Yoreh De'ah294:23; Siftei Cohen 294:34).

Although they are edible, they are not considered as food to this extent. The Shulchan Aruch (Yoreh De'ah 294:3) differs and accepts the Rambam's ruling only in the Diaspora. In Eretz Yisrael, even the leaves are considered as food.

I.e., he does not plant the trees in order to partake of the food himself, but to leave it as ownerless, for any passersby to partake of them (the Rambam's Commentary to the Mishnah (Orlah 1:2)].

More particularly, Pesachim 23a and the Sifra (as quoted in the Rambam's Commentary to the Mishnah) derive this concept from the word lachem in that prooftext.

The rationale for this ruling is that there is a difference of opinion concerning this ruling and we follow the general principle (Berachot 36a): Whenever a Sage rules leniently with regard to the situation in Eretz Yisrael, we follow his opinion in the Diaspora."

In all the situations mentioned in this halachah, there is reason to think that the prohibition of orlah does not apply. When trees are planted in the public domain, the land is not his. Based on the Jerusalem Talmud (Orlah 2:1), we can conclude that we are speaking about an instance where the person plants for his own self. If he plants trees in the public domain for people at large, the prohibition of orlah does not apply.

One might think that since the ship is not connected to the ground, the prohibition of orlah does not apply. Instead, however, the ship is considered as a large flowerpot in which instance, a tree planted within it is obligated in the laws of orlah, as stated in Halachah 8.

Since no one planted them, one might think the prohibition of orlah does not apply.

If, however, trees grow by their own accord in the public domain, they are ownerless and the prohibition of orlah does not apply [the Rambam's Commentary to the Mishnah (Orlah 1:2)].

I.e., and afterwards, a Jew purchased the tree from him (ibid.).

The above explanation is taken from Rav Kappach's translation of the Rambam's Commentary to the Mishnah and is also reflected in one of the Rambam's responsa. In Rav Kappach's notes, he explains that this represents an emendation of his original text (which is printed in the standard translations of the Commentary to the Mishnah). Those texts state that even if a gentile raises a tree himself, the prohibition of orlah apply. That view is followed by the Shulchan Aruch (Yoreh De'ah 294:8).

Since a gentile is not obligated in any of the mitzvot, one might think the prohibition of orlah does not apply. See also Halachah 9.

We are not speaking about a person who steals land, because the ownership of the land is never stolen. At all times, it and the trees that grow on it are the property of the original owner (Bava Kama 117a). Instead, we are speaking about a person who stole a sapling and planted it. Whether or not the owner despairs of his loss, the prohibition of orlah apply.

This law is taken from the Jerusalem Talmud (Orlah 1:1), only the standard versions of that text read chorshin, "forests," instead of torshin, "rocky terrain." Rav Yosef Corcus suggests that the version of the Jerusalem Talmud available to the Rambam read like his text here. The Radbaz and the Kessef Mishneh suggest emending the text here to read like the standard version of the Jerusalem Talmud.

This applies even if the rocky terrain is a person's private property. We are forced to say that for the previous halachah already mentioned a tree that grew on its own accord in the public domain (Radbaz).

The rationale for this law is that since the soil is not good, the trees will not grow well and will only produce a minimal amount of fruit. Hence, it is considered as if one has planted these trees for purposes other than their fruit and the prohibition of orlah does not apply as stated in Halachah 2.

Even if the person who planted the tree shows concern for the tree's fruit, he is not considered to have planted a tree for the purpose of fruit, for the nature of the situation prevents us from considering it as such.

When quoting this law, the Shulchan Aruch (Yoreh De'ah 294:24) mentions both planting a lulav and an esrog. That version is also acceptable, because the tree used for the lulav must be a date palm whose species produce edible fruit.

The candelabrum in the Temple.

For even though he is not seeking personal benefit from the fruit, he is seeking to use it for a mitzvah. Thus his intent is on the fruit itself.

Because the prohibition of orlah does not apply to consecrated property.

Because as soon as the tree was planted, the prohibition of orlah took effect. The obligation to observe them is not nullified by the consecration of the tree.

Whether of wood or earthenware (Radbaz).

A smaller plant that is planted in a flowerpot without a hole does not derive nurture from the ground. A tree's roots, by contrast, have more power and can derive nurture from the ground even when there is no hole [Jerusalem Talmud (Orlah 1:2)].

Before the conquest of the land by Joshua.

This law is not merely a historical point. It shares an element of contemporary relevance. At present, all of the agricultural laws relevant to Eretz Yisrael are observed only by virtue of Rabbinic decree. It will not be until the entire Jewish people return in the era of Mashiach, that these mitzvot will have the status of Scriptural commandments (see Hilchot Terumah 1:26 and notes). Thus the prohibition of orlah does not apply to trees planted by gentiles in Eretz Yisrael at present. If such trees are less than three years of age when Mashiach leads the entire people back into the land, the laws of orlah will not apply to them (Rambam LeAm).

If the plant was for the sake of a Jew, as stated in the notes to Halachah 5.

As stated in Halachah 14, grafting is equivalent to planting.

It is forbidden for a Jew to make such a graft. Once it is made, however, a Jew can benefit from the fruit. He must, however, wait the three orlah years (Radbaz).

See Hilchot Melachim 10:10 which states that, with a few exceptions, if a gentile desires, he may observe any of the mitzvot of the Torah and he receives a reward for doing so.

The Radbaz mentions that in warmer climates, it is possible for a tree to grow from a seed to the point that it can produce fruit in three years. In his Guide to the Perplexed, Vol. III., ch. 37, the Rambam states that the Torah mentions three years because it speaks about the majority of instances where trees are grown by planting boughs from other trees.

Rambam LeAm questions why it is necessary for the Rambam to mention "another place." Even if he replanted the tree in its original place, the laws of orlah apply.

I.e., in the case of a replanted tree, we do not consider the years it grew in its previous place.

Replanting it, as it were.

I.e., if the connection via its roots was strong enough to sustain it without filling the earth in around its roots.

See the Rambam's Commentary to the Mishnah (Orlah 1:4; Keilim 11:15; 13:5) for a more particular definition of this term.

That thin root would be sufficient to provide it with its nurture even if one would not have replanted it.

The Rambam, quoting Orlah 1:3, uses the term sela, usually translated as "rock" for the clod of earth, because the earth hardens around the mass of roots, as he explains in his Commentary to the Mishnah.

The Rambam's wording implies that if the stump of the tree is above the earth, the laws of orlah do not apply. The commentaries have noted that this ruling appears to conflict with his ruling in Hilchot Shemitah 3:8.

For this is considered like a new tree. See also Halachah 19.

Havrachah, translated as "extending," is a technique that was used particular with regard to vines. After a vine had grown for a long time, the head of the vine is planted in the ground where it grows new roots and thus has the potential to better nurture the new growth. As evident from the continuation of the halachah, sometimes the connection to the original vine is severed and it continues to grow as entirely independent plant. Other times, the connection is allowed to continue and then it is considered only as an extension of the original plant. See the Rambam's Commentary to the Mishnah (Orlah 1:5) and the Shulchan Aruch (Yoreh De'ah 294:16).

Thus the grafted branch will be receiving nurture from two sources (ibid.).

For severing the connection is considered like planting it.

See Hilchot Kilayim 5:22 which explains how this measure is calculated.

For the prohibition of orlah is nullified in a mixture one/twohundredth the size of the forbidden matter. In the instance mentioned above, once the connection to the original tree is severed, everything which grows is considered as orlah. Thus the fruit remaining on the tree has both permitted and forbidden elements to its existence. If it grows more than the amount stated above, the prohibited substance within it is not nullified and it causes the entire fruit to become forbidden.

I.e., one that was not yet three years old.

Which are forbidden because they are orlah.

From the Rambam's wording [which is quoted by the Shulchan Aruch (Yoreh De'ah 294:22), the Siftei Cohen 294:32 infers that the new fruit that grows on the grafted branch afterwards is permitted.

I.e., since at the outset, this fruit was forbidden, its fundamental nature is considered as forbidden and everything added to it is incidental.

Since its original connection to the earth was severed, the tree is considered as having been planted at this time.

For until then, whatever grew from the implanted branch was considered as part of the original tree and the years of orlah were never counted for it. Even though the years of orlah were counted for the original tree, since it is now being considered as part of the implanted branch, we must count the years of orlah again.

Even from the later implants.

Because they are all considered as part of the original plant.

The implanted plants are considered as new entities and the prohibition of orlah applies to them.

For the new growth is considered as an extension of the previous tree.

I.e., it did not have a portion that projects above the ground (Bava Batra 82a).

For it is considered as an entirely new tree.

This is a Rabbinic decree, enacted for the reason stated by the Rambam.

This was a common pattern to plant trees and was referred to as "a small vineyard" (Hilchot Kilayim 7:7). Even though it is a separate entity, because it is small, it is subject to the above Rabbinic decree.

Because the prohibition against orlah applies only to the fruit and not to the plant as a whole [the Rambam's Commentary to the Mishnah (Orlah1:9)].

Chapter 10, Halachah 9.

It is even permitted to partake of its fruit, as explained in the following halachah.

Our translation is taken from Rav Kappach's translation of the Rambam's Commentary to the Mishnah (loc. cit.). The standard published text of that work and similarly, the gloss of the Radbaz to this halachah understands the term differently.

The date cluster.

The permitted date tree.