Peninei Halakha

02 – Orla and Neta Reva’i

1. The Mitzvot of Orla and Neta Reva’i

The Torah forbids deriving benefit from orla fruit, which grows during the first three years of a tree’s life. It also commands that fourth-year fruit be brought to Jerusalem and eaten there in sanctity, with praise to God. Through this mitzva, blessing extends to the fruit that grows from the fifth year onward. The Torah states: “When you come into the Land and plant any tree for food, you shall treat its fruit as closed off. For three years it shall be closed off to you; it may not be eaten. In the fourth year, all its fruit shall be sacred, for praise of the Lord. In the fifth year, you may eat its fruit, so that it may yield its increase to you. I am the Lord your God” (Vayikra 19:23–25).

The word orla means a blockage. Thus, an “uncircumcised heart” is a heart that is blocked; “uncircumcised ears” are ears blocked from hearing; and “uncircumcised lips” are lips unable to speak freely. From this we learn that the fruit of the first three years is forbidden to us: we may neither eat it nor derive benefit from it (Rashi and Rashbam on Vayikra 19:23).

When the Children of Israel crossed the Jordan in the time of Yehoshua bin Nun and entered the Land, the laws of orla took effect. This follows from the verse: “When you come into the Land and plant.” Even if a gentile planted a tree in his own field after that point, it became subject to orla, and one may not derive benefit from its fruit. The verse says, “any tree for food,” including a tree planted by a gentile (Sifra on Vayikra 19:23).

In the Diaspora, the law of orla applies by virtue of a halakha transmitted to Moshe at Sinai — a tradition that limits the prohibition to cases where the fruit is certainly orla. Thus, in the Diaspora, fruit is forbidden only when it is known with certainty to be orla; if its status is uncertain, it is permitted, even when there is strong reason to presume that it is orla. When it is uncertain whether fruit is orla, the fruit is forbidden in Eretz Yisrael but permitted in the Diaspora (Mishna, Orla 3:7; Yerushalmi, Orla 3:7; Kiddushin 39a; SA YD 294:8; see below, section 11). The boundaries of the Land for this mitzva are the boundaries of those who ascended from Egypt. Even according to those who maintain that the southern Arava lies outside those boundaries, since it is under the sovereignty of the State of Israel, the Torah obligation applies there as well (see below, chapter 12, section 2, note 2, and chapter 17).[1]
Whether one plants a seed or a cutting, the three years are counted from the time it takes root in the ground (as explained below, section 4).

[1]. The Mishna in Orla 1:2 teaches: “When our ancestors came to the Land, fruit from trees they found already planted was not subject to orla; fruit from trees they planted, even before they conquered the Land, was subject to orla.” The Yerushalmi explains that “when you come” means “as soon as you enter.” Rambam rules accordingly (MT, Laws of Second Tithe and Fourth-Year Fruit 10:9). Some Aḥaronim maintain that according to the view that the Land’s second sanctification, in the Second Temple period, lapsed with the Temple’s destruction, the law of orla today is rabbinic (Mishneh la-Melekh on MT, Laws of Forbidden Foods 10:11). Others maintain that the Torah obligation of orla applies only when most of Israel lives in the Land, based on the phrase “when you come” (Tzlaḥ, Berakhot 36a). In practice, however, the accepted ruling is that orla in Eretz Yisrael applies by Torah law even today (SA YD 294:8; Radvaz; Mabit; Maharshdam; Maharit). In pressing circumstances, the lenient views may be combined as an additional basis for leniency (R. Herzog, Pesakim u-Ketavim 3:1; Yabi’a Omer 6, YD 24).Since fruit whose orla status is uncertain is permitted in the Diaspora, the Sages said: “Whoever rules leniently in Eretz Yisrael, the halakha follows his view in the Diaspora” (Berakhot 36b). Accordingly, the caper’s peel does not have the status of orla. The same applies to every dispute in the laws of orla: whenever a Tanna or Amora rules leniently, the Diaspora follows that lenient view (see SA YD 294:17). It also appears that in disputes among the Rishonim and Aḥaronim, one should incline toward leniency. Still, when the stringent position seems far more compelling, it is proper to be stringent.

2. The Reason for the Mitzva

This mitzva honors God with the first of the tree’s fruit: it is eaten in sanctity in Jerusalem, where one praises Him for all the good He has bestowed upon us. Usually, the fruit that grows during the first three years is not especially abundant or choice, and therefore would not bring fitting praise to God. The Torah prohibits that fruit so that the first time we eat from the tree will be an act of sanctity and praise in the fourth year, when the fruit is already plentiful and fine. This allows God’s goodness and blessing to rest upon the fruit of all the coming years. Eating it then remains joined to faith and becomes a source of vitality, goodness, and blessing in the world. The Torah gave similar commands regarding the firstborn of people, the firstborn of animals, and the first fruits. The same principle also underlies the mitzvot of ḥadash, teruma, ḥalla, and reishit ha-gez (see Ramban on Vayikra 19:23–25; Sefer ha-Ḥinukh 246–247).

This mitzva also teaches the value of self-discipline, a virtue of tremendous importance. The ability to restrain oneself and defer gratification is essential for success in this world and the next. A young person who studies diligently is likely to succeed later in his personal life and livelihood; yet many young people are unable to hold themselves back. Swept along by impulse, they waste their time on various diversions. Likewise, friendships between young men and women that are not directed toward marriage can harm their ability to marry and build a loving, faithful home; yet many people are unable to restrain themselves and form intense attachments that do not lead to a true covenant. The same applies to people who cannot restrain themselves from spending money on luxuries, such as buying a home beyond their means. Instead of saving enough to help their children learn a profession and marry, or to support themselves in old age, they spend what should have been set aside. Adam, the first man, too, was swept along by his inclination. He sinned because he did not restrain himself from eating from the Tree of Knowledge of Good and Evil, and thereby brought death upon himself and his descendants. Through the mitzva of orla, a person learns to watch his fruit grow and refrain from deriving benefit from it. As he does so, he learns to overcome his inclination and develop self-discipline. This is what the Sages said: “Who will uncover the dust from your eyes, Adam? You could not stand by your command even for one hour, while your children wait three years for orla” (Vayikra Rabba 25:2; see Beitza 25b).

The Sages further said that the fruit of the first years reflects an urge to appear before its time, without proper restraint. It is therefore incomplete, and impurity clings to it. The fruit of the first three years corresponds to the three dense, impure husks that seal off and conceal the light. The fourth year corresponds to the thin shell in which good and evil are mixed together. Fourth-year fruit is rectified by bringing it to Jerusalem and eating it in sanctity (Zohar 3:87a; Sha’arei Orah, Gate 5; Pardes Rimmonim 25:7).

3. The Prohibition Against Deriving Benefit

One may neither eat nor derive benefit from fruit that grows during a tree’s first three years. For this reason, one may not light a lamp with oil extracted from orla fruit, nor may one fuel an oven with orla fruit. One may not place orla fruit in the ground as fertilizer, although one may throw it onto the ground if he does not intend to fertilize with it. One may not use orla fruit even for a mitzva; therefore, an orla etrog is invalid for the mitzva of the four species on Sukkot (Sukka 34b; SA YD 294:24; Peninei Halakha: Sukkot 4:12). It is likewise forbidden to benefit from the fragrance of orla fruit (SA YD 108:7).[2]

It is also forbidden to dye a garment with dye produced from orla fruit. A garment dyed with orla fruit may not be used; to prevent people from mistakenly benefiting from it, it must be burned (Yerushalmi, Orla 3:1; Kiddushin 56b). Whenever there is concern that people may derive benefit from orla fruit, there is a mitzva to burn it or destroy it in some other way that makes benefit impossible. When possible, it is good to remove the blossoms or fruit while they are still small, so that people will not mistakenly benefit from them. [3]

One may not derive benefit from anything that develops together with the fruit, including the pits, peel, and juice. By contrast, one may derive benefit from the tree itself, its leaves, and its blossoms. One may also derive benefit from semadar — fruit so small that it is not yet considered fruit. Once the fruit reaches the stage of boser — recognizable but still unripe fruit — it is considered fruit, even though it is still unfit to eat, and the prohibition of orla applies (Mishna, Orla 1:7–9; SA YD 294:1–2). [4]

It is forbidden to plant the pits of orla fruit. Nor may one place orla fruit in the ground in order to grow a tree from it. One may, however, plant a branch from an orla tree, since one may derive benefit from the wood itself (Mishna, Orla 1:9). If one transgressed and planted orla fruit, one may derive benefit from the tree that grows from it. This is based on the rule of zeh ve-zeh gorem mutar: when two factors together produce something, one forbidden and one permitted, the result is permitted. Here, the two causes are the forbidden fruit and the permitted soil. Therefore, one may derive benefit from the resulting tree (SA YD 294:12).

The prohibition of orla also applies to fruit from a tree owned by a gentile, and a Jew may not derive benefit from that fruit. Nevertheless, a gentile may benefit from orla fruit that grew on his own tree or on a tree owned by a Jew, because the prohibition of orla applies to Jews, not gentiles. Still, since a Jew may not derive benefit from the fruit, he may not sell his orla fruit to a gentile, give it as a gift, or even feed it to an animal, because in each of these cases he derives benefit from it (MT, Laws of Forbidden Foods 8:16).

Before any orla fruit has begun to grow, however, one may sell a gentile the rights to the future crop. Since the Jew receives payment before the fruit exists, he is not deriving benefit from the fruit itself, but from the tree, from which benefit is permitted (SA YD 294:15; Nekudot ha-Kesef on MT, Laws of Forbidden Foods 8:16). This leniency applies only when there is no concern that the gentile will later sell the orla fruit to Jews and cause them to transgress, such as when he sells it in a place where no Jews live.

[2]. According to the Yerushalmi, Orla 3:1, and Pesaḥim 21b, Ḥizkiya holds that wherever the Torah states, “it shall not be eaten,” as it does with orla, one may not derive benefit from the forbidden fruit. Otherwise, people could sell the fruit and use the money to buy food, so the prohibition would indirectly lead to eating. When the Torah says “you shall not eat,” as with neveila or tereifa, the food is forbidden to eat but permitted for benefit. Rosh writes likewise (Ḥullin 7:17). R. Abbahu holds that any formulation prohibiting eating also prohibits benefit, unless a separate source permits such benefit. Rambam rules this way too (MT, Laws of Forbidden Foods 8:15). The Sages further derived from the threefold repetition of the term orla that all forms of benefit are included (Pesaḥim 22b). Regarding the permission to throw the fruit on the ground without intent to fertilize, see Tosafot on Avoda Zara 43b, s.v. amru lo, and Mishpetei Eretz 10:9.

[3]. The Mishna in Temura 7:4 states: “These are to be burned: ḥametz on Pesaḥ, impure teruma, orla, and kil’ei ha-kerem. Whatever is usually burned should be burned, and whatever is usually buried should be buried.” Tosafot imply that one must burn orla and kil’ei ha-kerem, based on the verse “lest it become consecrated,” which they read homiletically as “lest it be consumed by fire” (Kiddushin 56b). Ritva, by contrast, maintains that there is no obligation to burn them; rather, they must simply be destroyed. Binyan Tziyon 101 explains that the purpose is to prevent anyone from benefiting from them. Therefore, items better suited to burial should be buried, since there is no specific obligation to burn them. Arukh ha-Shulḥan YD 294:3 rules similarly. Ḥatam Sofer, OḤ 180, writes that by burning orla one fulfills a mitzva, but burning it is not obligatory.

[4]. Fruit develops in three stages. The first is semadar, when the emerging fruit is not yet halakhically considered fruit. This stage begins when the blossom falls and the tiny fruit first appears and lasts until the fruit’s form is recognizable. The second is boser, recognizable but still unripe fruit. Once its form is recognizable, it has the status of fruit even though it is still unfit to eat. The third is hevi shelish, when the fruit has matured enough to be edible in pressing circumstances. From that point on, tithes must be separated from it. R. Yosi holds that the prohibition of orla begins already at semadar, while the Sages hold that it begins only at boser (Mishna, Orla 1:7; Tiferet Yisrael on Mishna, Orla 1:7). Berakhot 36b explains this based on Mishna, Shevi’it 4:10. There, Beit Hillel says that during the Shemita year, one may no longer cut branches from grapevines, olive trees, and carob trees once they reach the boser stage: for grapes, when the berries form; for olives, when they blossom; and for carobs, when they begin to form chains. Radvaz explains Rambam’s ruling this way (Responsa 1:44; MT, Laws of Second Tithe and Fourth-Year Fruit 9:13), and the Vilna Gaon, YD 294:37, writes similarly. Date clusters are different, however, because people eat them even at the semadar stage (Radvaz).

Berakhot 36b states that, with other fruits, the Sages agree with R. Yosi that semadar is forbidden. Ḥazon Ish, Orla 3:5, takes this statement literally and concludes that only grapes, olives, and carobs remain permitted at the semadar stage, while other fruits are already forbidden. The Vilna Gaon, however, understands the Gemara’s statement as part of the give-and-take of the discussion, not its final conclusion. He therefore rules that for all fruits, semadar is permitted and boser is forbidden. That is the accepted halakha, since there is no compelling reason to distinguish among different types of fruit.

For further study: SA YD 294:4 writes that at the end of the third year, fruit that reached ḥanata after Tu Bishvat is permitted. R. Kook inclines toward this view in Mishpat Kohen 3. According to Rambam, SA, and most authorities, ḥanata is the stage at which the fruit reaches one-third of its growth, is fit to be eaten in pressing circumstances, and reaches the point at which one must separate tithes from it (Peninei Halakha: Shevi’it 3, note 6). This creates a difficulty for SA’s view, since we learned here that fruit becomes prohibited as orla already at the boser stage. How, then, could such fruit suddenly become permitted once Tu Bishvat arrives? Rambam’s own wording is: “Everything the tree produces during this time is orla” (MT, Laws of Second Tithe and Fourth-Year Fruit 9:10), which implies that the prohibition begins once the fruit reaches boser. According to Tosafot, however, ḥanata begins at the semadar stage. It is therefore possible that when Rashi writes (Rosh Hashana 14a) that the years of orla are determined by ḥanata, he understands ḥanata as the semadar stage, as Tosafot do. This is how Mishpetei Eretz 2:2 rules. Alternatively, one can explain SA’s view as follows: from the first of Tishrei until Tu Bishvat of the final year, orla applies only to fruit that developed from the previous year’s rainfall. It therefore stands to reason that only fruit that reached ḥanata before Tu Bishvat developed from those rains. Fruit that had reached only the boser stage developed from the rains of the new year and is therefore not prohibited. Rambam, who does not state his position explicitly, may agree with this explanation.

4. Calculating the Years of Orla

When counting the years of orla, two dates are relevant: the first of Tishrei, which is the New Year for years and for plantings, and the 15th of Shevat, which is the New Year for trees. This is because fruit that reaches ḥanata by the 15th of Shevat is considered to have developed from the rains the tree received during the previous year. We also have another rule: 30 days in a year count as a year (Rosh Hashana 9b–10b).

The calculation works as follows: If the tree took root in the ground by the 29th of Av, then by the first of Tishrei, 30 days will have passed for it, and those 30 days count as a full year. One must then wait another two years to complete the three years. Since the New Year for trees is the 15th of Shevat, one must wait until the 15th of Shevat, because fruit that reaches ḥanata before the 15th of Shevat developed from the rains of the previous year, when the tree was still subject to orla. Thus, if the tree took root on the 29th of Av 5781, all fruit that reaches ḥanata on it before the 15th of Shevat 5784 is orla. Fruit that reaches ḥanata from the 15th of Shevat 5784 until the 15th of Shevat 5785 is neta reva’i. Fruit that reaches ḥanata from the 15th of Shevat 5785 onward is ordinary fruit. In practice, then, orla applies to the tree for two years and five and a half months.

The Sages estimated that a seed or cutting takes 14 days to take root in the ground. Therefore, for a tree to take root by the 29th of Av and have that year counted, it must be planted no later than the 15th of Av. If one plants a sapling together with its root ball, there is no need to wait 14 days, because from the moment it is placed in the ground, it is considered rooted there. Accordingly, if it is placed in the ground by the 29th of Av, that year counts for it.

However, if the tree took root in the ground on the 30th of Av 5781 or later, then since 30 days did not remain for it in 5781, its first year begins only on the first of Tishrei 5782. One must then wait three full years, until the first of Tishrei 5785. Since the New Year for trees is the 15th of Shevat, one must wait several more months, until the 15th of Shevat 5785. Only then does the tree leave its orla status. Thus, if the tree took root in the ground on the 30th of Av 5781, orla applies to it for three years and five and a half months. Some authorities are lenient and maintain that orla never lasts more than three years. However, since orla applies by Torah law, the halakha follows the stringent opinion.[5]

[5]. If a tree took root on the 29th of Av, the orla period ends after roughly two years and five and a half months. If it took root on the 30th of Av, the orla period ends after roughly three years and five and a half months.

The text above follows Ra’ah, Tosafot, Rashba, Ritva, Ran, and Tur, who hold that after the three orla years end, one must always wait until the 15th of Shevat, since fruit that reaches ḥanata before then draws its nourishment from the previous year’s rains. Nevertheless, the first year need not be complete. If it contained at least 30 days before the first of Tishrei, that is enough for it to count as one year.

However, Rashi, Rambam, Raavad (MT, Laws of Second Tithe and Fourth-Year Fruit 9:10–12), Ri Ha-zaken, Meiri, and Semag disagree. In their view, only when the initial calculation was lenient, counting part of a year as a full year, must one wait until the 15th of Shevat in the final year. But if the tree was planted less than 30 days before year’s end, one begins counting three years only from the first of Tishrei 5782. On the first of Tishrei 5785, the tree leaves its orla status entirely, as it has completed three full years, and one need not wait until the 15th of Shevat. In their view, even fruit that reaches ḥanata before then is permitted, despite having developed from rains that fell while the tree was still within its orla years. If the tree was planted between the first of Tishrei and the 15th of Shevat, many authorities who follow this approach maintain that the orla period ends on the 15th of Shevat, so that one must wait more than three complete years (Raavad, Radvaz, and others on Rambam).

Others maintain that three years are counted from the exact day the tree was planted (Rambam, according to Kesef Mishneh). Still others go further and argue that whether the tree was planted before Rosh Hashana or after, one never counts more than three exact years (R. Hai Gaon, cited in Eshkol, Hilkhot Orla 111a; R. Natronai Gaon, cited in Tamim De’im 120). Some are even more lenient, ruling that if the tree took root by the 29th of Av 5781, the orla years end on the first of Tishrei 5784, after only 25 months. If it took root later than the 29th of Av, they end on the 15th of Shevat 5784, after 29 and a half months (R. Ḥananel, Rosh Hashana 9b–10a; another view cited in Eshkol, Hilkhot Orla 111a).

In practice, the primary ruling of SA YD 294:4–5 follows Rambam, while the stringent view of Razah is cited only as a minority opinion. The Vilna Gaon rules similarly. Even so, I wrote according to the stringent view, because we are stringent in cases of doubt involving Torah law. Mahara Fulda, Levush, Sha’arei Tzedek, Adret, Rashash, and Kerem Tziyon 6:5 likewise write that it is proper to be stringent.

In the Diaspora, the halakha follows the lenient view, and in pressing circumstances one may rely even on R. Ḥananel. As for the 14 days needed for rooting, those must be full days. Therefore, for the first year to count, one must plant no later than the 15th of Av. That is the ruling of Rambam (MT, Laws of Second Tithe and Fourth-Year Fruit 9:10), Semag, Kaftor Va-Feraḥ, Tur, SA YD 294:4, Sha’arei Tzedek, and Arukh ha-Shulḥan. Some maintain that part of a day counts as a full day, and therefore one may plant even on the 16th of Av (Rabbeinu Yeroḥam and Meiri). In Eretz Yisrael one should be stringent, while in the Diaspora one may be lenient.

5. A Tree That Was Uprooted or Cut Down

If a tree was uprooted from its place, but one of its roots remained attached to the ground, and that root was at least as thick as a weaver’s needle used to stretch fabric, one may replant the tree without restarting the orla count. Since it can survive by means of that one root, even if only with difficulty, it can still be considered attached, and its original status does not change. However, if no such root remains, the tree becomes subject to orla anew when it is replanted (SA YD 294:20).

If the wind uprooted a tree, or a river swept it away, yet a clump of soil remained attached to its roots, and that clump can sustain it for at least 14 days, one may replant the tree without restarting the three-year count, even if none of its roots remained attached to the ground itself. If it cannot live from that clump for 14 days, then once replanted, the years of orla must be counted from the start. Therefore, one who needs to move a fruit tree from one place to another must be careful to uproot it together with enough soil to sustain it for 14 days, so that the orla count does not restart. It is also advisable to prune the tree substantially beforehand, thereby making it easier for the tree to survive that length of time.[6]

If a tree was cut down or broke, and any part of its trunk remains above ground, the orla count does not restart. If it was cut down completely and then regrew from its roots, it becomes subject to orla anew.[7]

[6]. The Mishna in Orla 1:3 states: “If a tree was uprooted and its soil remained with it… if it can survive, the orla count does not restart; if not, the count restarts.” SA YD 294:19 rules accordingly. Some maintain that the orla count does not restart only if the clump of soil could sustain the tree for three years. This is the view of Peraḥ Mateh Aharon 2:75, Birkei Yosef YD 294:11, PT YD 294:13, and Igrot Moshe YD 1:185. However, the halakhic authorities in Eretz Yisrael, led by R. Kook (Mishpat Kohen 8–9), ruled for farmers that it is enough if the clump can sustain the tree for 14 days, the normal rooting period. R. Herzog accepted this view in Pesakim u-Ketavim 3:9; see also Mishpetei Uziel, vol. 1, YD 20; Minḥat Shlomo 1:69. This assumes that the tree receives ordinary care, including watering and fertilizing. Even the stringent authorities may agree that if the clump can sustain the tree for 14 days with ordinary care, it likely could sustain it even for three years, especially if the tree is heavily pruned and continuously watered by drip irrigation.[7]. Yerushalmi, Shevi’it 1:6, explains that according to R. Eliezer ben Yaakov, if a tree was cut down to less than a tefaḥ above the ground, orla applies to it anew. According to the Sages, as long as any part of the trunk remains above ground, the orla count does not restart; only if it was cut flush with the soil does orla apply anew. Rambam (MT, Laws of Second Tithe and Fourth-Year Fruit 10:13), Rashba, Rabbeinu Yeroḥam, and SA YD 294:18 rule in accordance with the Sages. Rosh rules in accordance with R. Eliezer ben Yaakov. See Beit Yosef and Shakh YD 294:31 regarding the basis of their dispute. In practice, the halakha follows the lenient view, because the Yerushalmi indicates that the requirement to treat a cut tree as new is only rabbinic, due to marit ayin, and in cases of doubt involving rabbinic law, the ruling is lenient. Most authorities agree.

6. Layering and the Law of New Shoots

To create a havrakha, or layering, one bends a branch from an established tree, buries the middle section in the ground, and leaves the tip exposed at the place where he wants a new tree to grow. At first, the layered branch draws its nourishment from the original tree. Over time, the buried section develops roots that also nourish the new tree. For orla purposes, as long as the new tree continues to draw nourishment from the original tree, even if most of its nourishment now comes from the new roots formed through the layering, the new tree is considered an extension of the old tree, and the orla count does not begin anew. Even if one layers a third tree from the second, and a fourth from the third, the orla count does not begin for any of them as long as they remain connected to the first tree, since they are still considered extensions of it. If, however, the connecting branch is cut, or that section withers away, one must begin counting the three orla years anew for the layered tree.

If new shoots emerge from beneath the ground, even though they came from the root system of an old tree, then as long as their connection to the old tree is not apparent — for example, when they emerge some distance from it — they are treated as a new tree, and the orla count begins for them (Bava Metzia 119a; MT, Laws of Second Tithe and Fourth-Year Fruit 10:19). If, however, the shoots grow close to the old tree, and it is apparent that they are part of it and emerged from the underground portion of its trunk, one could argue that they belong to the original tree and that the orla count should not begin anew. Nevertheless, since many authorities are stringent and treat even these shoots as a new tree, it is proper to be stringent.[8]

[8]. The Chief Rabbinate and various kashrut agencies generally rule that shoots emerging from below ground are treated as a new tree, and that the orla count begins for them anew, as stated in Bava Metzia 119a and MT, Laws of Second Tithe and Fourth-Year Fruit 10:19: “A tree that emerges from the trunk does not require a new orla count; one that emerges from the roots does.” They issue this ruling even when the shoots grow right next to the main trunk. Accordingly, one must be careful with pomegranate trees, blueberry bushes, and the like, which often send up shoots that bear a large amount of fruit before their orla years have passed. In practice, this creates a constant challenge, and many people inadvertently transgress.

In principle, however, adjacent shoots should not be prohibited. A tree is defined by its root system and the base of its trunk; so long as additional shoots grow from that system, they should not require a new orla count. This appears from the law of the caper bush, which sometimes withers entirely in winter and regrows from its roots, yet after three years its fruit is not treated as orla (as explained in Shibbolei ha-Leket §160 in the name of Rabbeinu Ḥananel; see below, note 11). It would therefore seem that Rambam and the other authorities prohibit only sprouts that emerge at a distance from the trunk, from lateral roots rather than from the tree’s main growth axis. R. Yisraeli writes along similar lines (Amud ha-Yemini 28), as does Minḥat Shlomo 1:71:8. This also accords with Rashba, who states that the prohibition on such shoots is rabbinic and based on marit ayin. R. Shimshon of Shantz and Keren Orah maintain this as well. With shoots adjacent to the trunk, there is no concern for marit ayin, as it is evident that they belong to the main tree. Otherwise, it is very difficult to understand why many authorities, including Tur and SA, omit Rambam’s ruling entirely. Even those who cite Rambam do not spell out such a serious and common problem, despite the fact that many pomegranate growers would be likely to stumble in it. We may therefore conclude that adjacent shoots are not actually prohibited. Moreover, according to Or Zaru’a, based on his version of Bava Metzia 119a, shoots that emerge from roots do not require a new orla count at all, similar to a layered branch. For a rabbinic matter such as this, one may rely on that view. Still, since many contemporary authorities maintain that such shoots are forbidden, and some are even concerned that the prohibition may apply by Torah law, it is proper to be stringent out of consideration for their view (Mishpetei Eretz 6:4; see R. Yoel Friedman, Emunat Itekha 14).

7. Pots and Nurseries

Orla applies to a tree growing inside a house. Since orla depends on the tree being planted in the ground, having a roof above it does not prevent orla from applying. Likewise, orla applies to a tree planted on a rooftop. Even though the roof separates the tree from the earth, the roof itself is connected to the ground through the walls. It is therefore considered part of the ground, and the tree growing on it is considered planted in the earth (SA YD 294:26).

One who plants a sapling in a perforated pot is considered to have planted it in the ground, and the orla years are counted from then. If one plants a tree in an earthenware pot, even one without holes, the tree is also considered planted in the earth, and orla applies to it, because its roots can break through the earthenware. Even before they do so, they are considered to draw nourishment from the ground. Some maintain that orla applies even to a tree growing in a metal pot, despite the fact that its roots clearly cannot penetrate the metal.[9]

With modern advances in fertilization and irrigation, many trees are now capable of bearing abundant fruit already in their third year. Since one may not derive benefit from that fruit, and it is costly to leave valuable agricultural land unproductive, farmers developed a practical solution. They keep the trees for about two years in nurseries, in perforated plastic pots, where they occupy little space and cost less to maintain. In the third year, they transfer them to the ground, where they can take root more firmly and then produce abundant fruit in the fourth year, when the fruit is no longer orla.

In practice, because we are concerned for the view that the orla count may not begin in an unperforated plastic pot, two conditions must be met if time spent in nursery pots is to count toward the three orla years according to all opinions. First, the pot must have a hole large enough for a small root, so that it is considered connected to the ground. Accepted practice requires a hole at least 2.5 cm in diameter.[10] Second, when the sapling is transferred from the pot into the ground, one must take care that the soil clump around the roots does not fall apart. After the fact, even if most of it crumbled, as long as the roots still remain embedded in enough soil to sustain the tree, one need not restart the count. If, however, almost all the clump broke apart, so that even with watering and care the tree would likely not survive for 14 days unless it were replanted, then one must begin counting the three orla years anew.[11]

[9]. According to Rosh (Teshuvot Ha-Rosh 2:4) and Tur, as explained in Ḥavot Binyamin 2:4 and Minḥat Shlomo 1:70, orla applies only to a tree growing in an unperforated earthenware pot. If the tree grows in any other unperforated container, even one made of wood, the orla count does not begin. If the tree is later transplanted into the ground, one must begin the three-year count anew. Rambam, however, writes: “If one plants in an unperforated pot, orla applies. Although such a pot is not considered like the ground for seeds, it is considered like the ground for trees” (MT, Laws of Second Tithe and Fourth-Year Fruit 10:8). SA YD 294:26 rules likewise, and most authorities accept this view. Nevertheless, they disagree about which containers Rambam had in mind. Some say he referred only to wooden pots and the like, which roots can sometimes break through; containers that roots cannot penetrate do not start the orla count (R. Herzog, Pesakim u-Ketavim 3:10). Others say that orla applies to trees in every kind of pot, even metal, because tree roots are considered so powerful that no barrier fully cuts off their nourishment from the earth (Minḥat Shlomo 3:158:20). Some remain uncertain (Har Tzvi, Zera’im 2:15:3; Lehorot Natan 6:101). Since this is a doubt involving a Torah prohibition, one should be stringent with trees growing in unperforated metal or wooden pots. The stringency cuts both ways: while the sapling remains in such a pot, one observes orla; if it is later transplanted into the ground, one begins counting the three years again.

[10]. Saplings are generally grown in plastic bags with holes. If the bag is thick and has no hole at all, the roots of a small tree cannot penetrate it. According to Rosh, the orla count does not begin for a tree grown in such a bag. Some understand Rambam and those who follow him the same way, as explained above. Therefore, one should make a hole in the bag, so that the sapling is considered connected to the ground and the orla count can begin. We learn from other laws that the required opening is the size of a small root (Uktzin 2:10). Shabbat 95b teaches that this is larger than the opening that lets liquid enter, which is less than two millimeters, and smaller than an olive, which by our standard measure is about 1.5 cm. In practice, the accepted custom is to be stringent and equate a “small root” with a large kezayit, yielding a required opening of 2.5 cm (R. Goren, Teḥumin 1, p. 158; Mishpetei Eretz 3:7, note 1). After the fact, however, even a one-centimeter opening may suffice, since it is already larger than the size of a small root. In addition, Rambam maintains that orla applies even in an unperforated pot. Although some understand him to refer only to a wooden pot, which roots can break through, a plastic nursery bag may also be penetrated by roots, in which case most authorities would say no hole is needed at all. So writes R. Goren there. Moreover, even when there is only a tiny hole of one millimeter, because the bag is soft, any root that passes through can widen it beyond the size of an olive. The bag may therefore have the status of a perforated clay pot, which even according to Rosh counts as perforated. Furthermore, some maintain that even when a tree grows in a fully unperforated pot and the orla count does not begin there, the time spent in the pot still counts toward its three years, just as we count the years of a sapling brought from abroad (Beit David 2:1; Even ha-Ezel, cited in Kerem Tziyon). See also the extensive article by my colleague R. Azriel Ariel in Ha-Torah Ve-ha-Aretz 1.

[11]. When saplings are transported from the nursery to the field, they sit on a truck with a metal floor. Some were concerned that during that time they are considered disconnected from the ground, and that upon being replanted, the orla count must begin again. They therefore required that, ideally, they be transported in a truck whose bed is perforated (R. Ovadia Yosef; Shevet HaLevi 5:156:3–4). Strictly speaking, however, this is unnecessary. The sapling remains with its soil clump intact, which continues to sustain it as before. A brief interruption of a few hours does not make it a new planting (R. Yisraeli, Ḥavot Binyamin 1:1; Minḥat Shlomo 3:158:19; 1:70; Mishpetei Eretz 3:9, note 7). This is especially so according to those who, following Rambam and most authorities, maintain that orla applies even to a sapling in a metal pot, and according to the view of Beit David mentioned at the end of the previous note. See also R. Azriel Ariel’s article cited above.

8. Trees Subject to Orla

The mitzva of orla applies to fruit trees, not to vegetables. Orla does not apply even to vegetables that grow on perennial shrubs. The key difference between a tree and a perennial vegetable is this: the stem of a perennial vegetable withers each year and regrows from its roots the following year, whereas the trunk and root system of a tree remain in place and become more established from year to year. New branches and fruit then continue to grow from that same enduring structure. This distinction also determines the blessing over the fruit — whether ha-etz or ha-adama. For this reason, one recites ha-adama over bananas. Although the banana plant can grow to about four meters and looks like a tree, it is considered a vegetable because its “trunk” withers, its roots shrivel, and it regrows the following year only from its bulb (Berakhot 40a; following the Geonim; SA and Rema OḤ 203:2–3; Peninei Halakha: Berakhot 8:2).[12]

Eggplants and peppers require special consideration, because their stems remain intact from year to year. In practice, orla does not apply to them, as they differ fundamentally from trees. They bear fruit already in the first year; in the second year, their yield diminishes in both quantity and quality; and they generally do not continue producing beyond three years. By contrast, the Torah presents a tree as bearing fruit for at least five years; by observing orla, its fruit increases and improves in the fifth year, as it says: “When you come into the Land and plant any tree for food, you shall regard its fruit as closed off. For three years it shall be closed off to you; it may not be eaten. In the fourth year, all its fruit shall be sacred, for praise of the Lord. In the fifth year, you may eat its fruit, so that it may yield its increase to you. I am the Lord your God” (Vayikra 19:23–25). As the Sages said: “This mitzva that you keep will increase its yield for you, for I will bless the fruit you plant in its merit.” R. Akiva would say: “The Torah addressed the evil inclination, lest a person say, ‘I have worked in vain for four years.’ The verse therefore says, ‘so that it may yield its increase to you. I am the Lord’; I am the Lord Who guarantees this and is faithful to keep My promise” (Rashi, citing Torat Kohanim on Vayikra 19:25). Ramban likewise explains that the fruit grown in the third year is scant and poor, and only in the fourth year does it become good and fit to be brought before God as neta reva’i.

On that basis, orla does not apply to papaya and passion fruit either. They bear fruit already in the first year, and by the fifth year their yield has declined. Many of these plants do not even last five years. Some are stringent, but the accepted halakha follows the lenient opinion. For the same reason, orla does not apply to any variety of raspberry or blackberry, as explained in the note. [13]

[12]. The Tosefta in Kilayim 3:15 states: “This is the rule: anything that sends up its leaves from its base is a vegetable, and anything that does not is a tree.” That is, a vegetable sends up new leaves each year from its root or bulb, while a tree has a trunk and roots that become more established from year to year, and from that trunk new leaves emerge annually. Regarding the blessing of ha-adama or ha-etz, Berakhot 40b states: “If, when the fruit is removed, the goveza does not produce fruit again, one does not recite borei peri ha-etz but borei peri ha-adama.” Some authorities have understood that the Rishonim dispute the definition of goveza and, as a result, the definition of a “tree.” According to their reading, Rosh maintains that anything whose roots remain from year to year is considered a tree. The Geonim maintain that only a plant whose above-ground trunk remains is a tree. Some infer from Rashi that a plant is considered a tree only if its branches also remain from year to year. This understandably created many uncertainties regarding the laws of blessings and orla. More likely, however, the Rishonim are not actually disagreeing here. Rather, all agree that a tree is a plant whose trunk and roots endure and become more established from year to year, and because of that enduring structure, its fruit increases from year to year (as will be explained in the next footnote). Rashi was simply describing the common case, where the branches also remain from year to year. The Geonim were more precise in their formulation, in order to include trees whose branches wither. Rosh noted that in some cases even the above-ground trunk may wither, as sometimes happens with the caper bush. Yet because the plant has a single enduring trunk-and-root system that becomes more established from year to year, it is still considered a tree, as the Gemara concludes in Berakhot 36a. This definition of a tree accords with all the sugyot. Accordingly, the raspberry is not a tree, as explained in the next footnote.

[13]. Halakhic authorities discussed eggplants at length. Because their stems persist into the second year, they might seem, at first glance, to be subject to orla. This is indeed the view of Kaftor Va-Feraḥ (ch. 56). Nevertheless, the accepted practice everywhere has been to eat them even within the first three years. Birkei Yosef YD 294:4 cites his grandfather, R. Avraham Azulai, who testified that this was also the practice of the exceptionally pious, who were otherwise accustomed to personal stringencies, including R. Yosef Karo, the Ari, and R. Moshe Alsheikh. He explained: “Every tree that bears fruit year after year improves with time. The eggplant plant, by contrast, is good and sweet in its first year. In its second year, it declines somewhat and becomes a bit bitter. In its third year, it becomes very bitter and is fit for eating only in pressing circumstances. This shows that it is a vegetable.” Mishpetei Uziel, vol. 6, §80, rules similarly. Some add that it is inconceivable for there to be a fruit that is forever forbidden to eat (Pnei Moshe YD 294:4; Igrot Ha-Re’iya §468; Ḥazon Ish, Orla 12:3).

In practice, the halakhic authorities offered several identifying marks of a shrub to which orla does not apply. Many maintain that any plant that bears fruit in its first year is not a tree (Radvaz 3:531; Kol Eliyahu; Ma’amar Mordekhai; Peri ha-Adama; Rav Pe’alim OḤ 2:30). Others maintain that if its stem is hollow, it is not a tree but a stalk, even if the stalk is thick, because only a stalk can grow quickly, whereas woody trunks develop over years (Halakhot Ketanot 1:83; Rav Pe’alim OḤ 2:30). Others, as noted above, write that if its fruit declines from year to year, it is not a tree (Birkei Yosef; Tzitz Eliezer 2:15).

Based on these criteria, orla does not apply to papaya and passion fruit. To be sure, Mishpetei Eretz 1:4 is stringent regarding papaya because it bears fruit for more than three years. Some note that it can even survive for ten years or longer. Similarly, R. Yoel Friedman ruled stringently regarding passion fruit (Emunat Itekha 26), since its yield does not decline significantly and its stem is not truly hollow. Moreover, proper pruning can keep it productive for more than three years. Nevertheless, many halakhic authorities maintain that any plant that bears fruit in its first year is not a tree, and both papaya and passion fruit do so. Regarding papaya, this is also the ruling of Rav Pe’alim OḤ 2:30; Yayin ha-Tov, vol. 1, YD 14; R. Mordekhai Eliyahu, Ma’amar Mordekhai 3:10; and Yeḥaveh Da’at 4:52. In addition, the papaya’s stem is hollow, and the stem of the passion fruit has a small cavity as well (Ḥelkat ha-Sadeh 1:16–17). More fundamentally, a tree is by nature a long-term plant: its fruit increases in the fifth and sixth years, and it continues producing for many years. The papaya plant, by contrast, generally does not live beyond five years, and its yield declines from year to year. The same is true of passion fruit. Its peak yield is in the first and second years, and perhaps the third as well. After that, the yield steadily declines, and many of the plants naturally wither by the fifth year.

A raspberry bush appears to be a perennial shrub, as it lasts for many years. In fact, however, each cane emerges from the ground and bears fruit for two years, or only in its second year, and then withers. Meanwhile, new canes emerge from the ground. They too bear fruit for about two years and then wither. The raspberry canes are also somewhat hollow. Since each cane bears fruit for no more than two years, the raspberry is treated halakhically as a vegetable, and one recites ha-adama over it. The same applies to blackberries and all shrubs whose canes weaken by the third year.

True, a new raspberry cane sometimes grows out of the old one, and it may even draw a bit of nourishment from it. In reality, though, the new growth does not depend on the old cane. Canes attached to the old one do not grow better than those that sprout anew from the roots. This shows that even those attached to the old cane establish a root system of their own, suited to their growth. Thus, this is not a tree that becomes more established from year to year.

9. Planting a Tree for Purposes Other Than Fruit

If one plants a tree not for its fruit, but for its wood or as a fence, orla does not apply to the fruit that grows on it. Such a tree is not considered a “tree for food,” and the mitzva of orla applies only to a fruit tree, as it says: “When you plant any tree for food, you shall regard its fruit as orla” (Vayikra 19:23). However, the Sages limited this leniency to cases in which it is evident that the tree was planted not for its fruit. If the trees are planted very densely, for example, it is clear that they were meant for firewood. If one prunes the branches in a way that causes them to thicken, it is evident that the tree was planted for lumber. If the precise placement of the trees shows that they were planted as a fence around a yard, orla does not apply to them. If one intended one side of the tree to serve as a fence and the other side to produce fruit, orla does not apply to the fence side, but it does apply to the fruit side (Mishna, Orla 1:1; Yerushalmi, Orla 1:1; SA YD 294:23). If one wishes to eat fruit from the side to which orla does not apply, one must separate terumot and ma’aserot without a berakha (see Yerushalmi, Orla 1:1). If, however, the tree was planted both for fencing or lumber and for fruit, then orla applies to its fruit.

If trees, such as olive trees, are planted for ornamental purposes, orla does not apply to their fruit. However, there is some doubt about trees planted as ornamentals when their fruit also contributes to their appearance, such as pomegranates and date palms. Since orla applies by Torah law, one must be stringent in cases of doubt. Only when it is clear that the fruit itself was not intended to enhance the tree’s appearance does orla not apply to it.

10. Neta Reva’i

Fourth-year fruit has sanctity. There is a mitzva to eat it in a state of purity in Jerusalem, as with ma’aser sheni (see below, 7:9–10). If the owner wishes, he may redeem the fruit onto money, bring the money to Jerusalem, buy food with it, and eat that food there in purity. Since neta reva’i fruit has sanctity, one need not leave leket, shikḥa, or pe’a from it for the poor, nor must one separate terumot and ma’aserot from it (Mishna, Ma’aser Sheni 5:3–4; Yerushalmi, Ma’aser Sheni 5:3–4; MT, Laws of Second Tithe and Fourth-Year Fruit 9:1–4).

Today, since we cannot bring fourth-year fruit to Jerusalem and eat it there in a state of purity, one redeems such fruit onto money or onto food of monetary value, thereby permitting the fruit to be eaten. Even if the fruit is abundant, since we may not eat it today while it retains its sanctity, it has no real value. Nevertheless, it may not be redeemed for less than a peruta. Therefore, one redeems all the fruit onto a coin worth at least a peruta, or onto food worth a peruta. Before redeeming it, one recites: “Blessed are You, Lord our God, King of the universe, Who has sanctified us with His commandments and commanded us regarding the redemption of fourth-year produce.” One then says: “All this fruit is hereby redeemed onto this peruta,” or “onto this food, which is worth a peruta.” The coin or food onto which the sanctity was transferred must then be destroyed, so that no one will mistakenly derive benefit from it (MT, Laws of Forbidden Foods 10:16–17). The details of these laws are explained below, in the laws of redeeming ma’aser sheni (chapter 10, sections 6–8).[14]

The laws of orla and neta reva’i also apply to Shemita fruit. Fruit that grows during the tree’s first three years has the status of orla and may not be eaten. Fruit that grows in the fourth year may be picked by anyone, but it must be eaten in Jerusalem. Today, it must be redeemed onto a peruta. Field owners must mark such trees during the Shemita year, so that those who enter the field will know not to eat fruit that is orla and to redeem fruit that is neta reva’i. After it is redeemed, care must be taken to finish eating it by the time of bi’ur. If one did not do so, one must perform bi’ur for it, just as one does with all other Shemita produce (MT, Laws of Second Tithe and Fourth-Year Fruit 9:7; Peninei Halakha: Shevi’it 4:5).

The halakhic authorities disagree about neta reva’i in the Diaspora. Some maintain that since a halakha transmitted to Moshe at Sinai establishes that orla applies outside Eretz Yisrael, neta reva’i applies there as well, because the two laws are linked (Rabbeinu Yona; R. Yitzḥak Ha-zaken). Others maintain that neta reva’i is like ma’aser sheni, which applies only in Eretz Yisrael (Rambam). Ideally, in order to satisfy all views, one should redeem neta reva’i in the Diaspora without reciting a berakha (Shakh YD 294:17). Nevertheless, one may rely on the lenient view and not redeem it. Just as fruit whose orla status is uncertain is permitted in the Diaspora, so too, when there is uncertainty about neta reva’i in the Diaspora, the halakha follows the lenient view.[15]

[14]. The halakhic authorities disagree about one who redeems his own neta reva’i fruit. Some maintain that he must add a fifth, just as with ma’aser sheni (Mishpetei Eretz 12:6). Others maintain that he need not add a fifth, because the Torah does not mention that requirement with regard to neta reva’i. Accordingly, today all such fruit is redeemed onto a single peruta (Kesef Mishneh on MT, Laws of Forbidden Foods 10:17; SA YD 294:6). Even one who wishes to be stringent should take care: saying, ‘It and its fifth are redeemed onto this peruta,’ risks leaving the fruit redeemed onto less than a peruta. (Or Le-Tziyon, vol. 1, YD 25).

Fourth-year fruit may be redeemed only after it has been picked. In pressing circumstances, however, one may redeem it while it is still attached, provided that he stipulates that the redemption will take effect only after it is picked. One should not recite a berakha at that time, because the redemption has not yet taken effect. This stipulation works only if the fruit has already reached the stage at which one must separate tithes from it, meaning that it could be eaten in pressing circumstances, and only if the coin remains available until after the fruit is picked.

[15]. Some maintain that in the Diaspora, neta reva’i applies only to a vineyard, not to other plantings, and not even to an individual grapevine unless it is planted as part of a vineyard (see below, 4:3). This is because the Tanna’im disagree whether the law of fourth-year fruit applies to all trees or only to a vineyard. Although in Eretz Yisrael the halakha follows the view that it applies to all trees, in the Diaspora the halakha follows the lenient opinion, namely, that it applies only to a vineyard (Geonim; Rosh; Rema). In practice, ideally one should redeem fourth-year fruit from all trees in the Diaspora, in order to take all views into account. Strictly speaking, however, since when it is uncertain whether fruit is orla, the ruling in the Diaspora is lenient, one may likewise be lenient when it is uncertain whether kerem reva’i applies in the Diaspora, and all the more so when it is uncertain whether neta reva’i applies.

Some maintain that just as orla applies by Torah law today, so too neta reva’i applies by Torah law today (Mabit; see Minḥat Shlomo 1:71:13). Others maintain that neta reva’i follows the law of ma’aser sheni. According to Rambam and those who agree with him that terumot and ma’aserot today are rabbinic, neta reva’i is likewise rabbinic (Minḥat Ḥinukh 247:15; Yeshu’ot Malko).

The mitzva of eating ma’aser sheni fruit can apparently be fulfilled only when the Temple is standing and the altar is in its place. Rambam writes (MT, Laws of Second Tithe and Fourth-Year Fruit 2:1) that ma’aser sheni may not be eaten in Jerusalem today, because it is compared to the firstborn offering, which may be eaten only when the altar is in its place (Makkot 19a). Rambam further writes there (ibid. 9:1) that neta reva’i has the same law as ma’aser sheni, and the Vilna Gaon rules likewise (YD 294:17).

11. Cases of Uncertainty Concerning Orla

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).

  1. 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.

Chapter Contents

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