If orla fruit becomes mixed with permitted fruit of the same kind, the entire mixture is forbidden unless the permitted fruit is at least 200 times the amount of orla fruit. The Sages established this measure because teruma, which is forbidden to eat but permitted for benefit, is nullified in a ratio of one to 100, whereas orla and kil’ei ha-kerem, which are forbidden both to eat and to derive benefit from, are nullified in a ratio of one to 200 (Mishna, Orla 2:1).
The 1:200 rule applies when orla fruit itself became mixed with fruit that would otherwise be permitted. If, however, there is uncertainty about particular fruit that someone bought — whether it came from an orla tree or not — the ruling depends on where the uncertainty arose. If the fruit was bought from an orchard or near one, then even though most orchards and trees do not produce orla fruit, the fruit is forbidden. Because the tree or orchard has a fixed location, we apply the rule: kol kavu’a ke-meḥtza al meḥtza dami — anything fixed is treated as though the probabilities were evenly balanced. If, however, the fruit was bought only after it had been removed from its fixed place and brought to the market or to stores, this is an ordinary case of uncertainty, and we follow the majority. In that case, we apply the rule: kol de-parish me-ruba parish — anything separated from a group is presumed to have come from the majority.
This permission to rely on the majority applies only after the fact — for example, when someone already bought fruit and does not know its status, or when one is in a place with no stores that have kashrut certification and reaching such a store would involve considerable trouble. If, however, there is a store with kashrut certification, one must avoid the uncertainty and buy there. Even if the uncertainty is very remote, because the percentage of orla fruit in that produce or in that region is extremely low, one must avoid creating such uncertainty whenever possible. In addition, it is a mitzva to support those who are careful in matters of kashrut. Moreover, when fruit is sold under reliable certification, terumot and ma’aserot are also properly separated.[16]
[16]. If one bought fruit from an orchard, but it is uncertain whether there is any orla orchard in the area, or whether an orchard that is generally not orla contains young trees whose fruit is orla, some maintain that this too is treated as a case of kavu’a (Ran; MB 513:31 inclines this way). Others maintain that the rules of kavu’a apply only when it is plausible that orla fruit is actually present there (Petaḥ ha-Devir). Most Rishonim and Aḥaronim maintain, however, that when it is uncertain whether any prohibited fruit is present at all, one follows the majority (Roke’aḥ, Ritva, Radvaz, Magen Avraham, and Taz).
Moreover, according to most halakhic authorities, for an uncertainty to be considered kavu’a, the prohibited source must be identifiable in its place, and one must be able to determine with modest effort where the orla orchard or trees are located. Although some are stringent, the halakha follows the lenient opinion, because according to most halakhic authorities, whenever there is uncertainty whether the case should be treated as kavu’a or parish, one rules leniently and treats it as parish.
Once the fruit reaches the market, four situations are possible. In the first, the Jewish owner brought the fruit to market and knows whether it is orla. In that case, the uncertainty arose only in the market, so the case is treated as parish. In the second, a gentile brought it to market; since the fruit had already been removed for sale, it is clearly treated as parish. In the third, a non-observant Jew brought it from its fixed location in order to sell it to wholesalers or shopkeepers, without knowing its status. Some maintain that because he is obligated in the mitzvot, the uncertainty arose when he removed it from its fixed place, and one must therefore rule stringently, as in a case of kavu’a (Yad Yehuda; Minḥat Yitzḥak 7:96). Others maintain that since he is not personally careful about such matters, the uncertainty arose only for the observant Jew who later bought it from him, and the case is therefore treated as parish (Ḥemdat Shlomo; Minḥat Shlomo 1:71:12). In the fourth, a non-observant Jew sent an agent to buy fruit from orchards, and the agent bought it without knowing where it came from. Some maintain that this too is treated as kavu’a (Divrei Ḥayim, YD 2:53), while others maintain that it is treated as parish (R. Shlomo Kluger, Tuv Ta’am Ve-da’at III 2:14). Thus, in two of these cases the fruit is clearly treated as parish, while in the other two there is uncertainty whether it should be treated as kavu’a or parish. As noted above, when there is such uncertainty, one treats the case as parish — all the more so when that is the more likely possibility. Accordingly, many rule that fruit sold in the market is treated as parish and may be eaten.
All this, however, applies only after the fact — when one has already bought fruit from a store and there is uncertainty whether it is orla. Le-khatḥila, one must make an effort to avoid such uncertainty; if there is a nearby store known not to sell orla fruit, one must buy there (R. Eliyahu writes similarly in Ha-Torah Ve-ha-Aretz 1). This has also been the practice of the Chief Rabbinate since the days of R. Goren: it supervises orchards to ensure that orla fruit is not marketed through the systems under its supervision. For this purpose, even stores under various Badatz kashrut agencies rely on the Chief Rabbinate’s supervisory system. How much effort must one make in order to buy from a supervised store that does not sell orla? This can be derived from the laws of netilat yadayim and prayer with a minyan, for which one must exert oneself up to a distance of a mil, about a kilometer (see Peninei Halakha: Prayer 2:4).
- Elyashiv, however, took a more complex view. In his opinion, whenever there is a reasonable possibility that fruit came from an orla orchard — that is, if orla fruit makes up about five percent of all fruit in the country, so that every region is likely to contain an orla orchard — then even after the fruit has left the orchards and reached the market, it still has the status of rabbinic kavu’a. This follows the view of those halakhic authorities (Rosh, R. Yitzḥak, and Shakh) who maintain that the Sages extended the law of rabbinic kavu’a even to fruit that separated from its fixed source, lest one come to take from the fixed source itself. His view is explained at length in Mishpetei Eretz, vol. 2, Orla 14. Nevertheless, since whenever there is uncertainty about the law of kavu’a, the halakha follows the lenient opinion — all the more so in a case of rabbinic kavu’a — his view need not be followed, and one may rely on the other halakhic authorities cited above.
