Kashrut I

08. Where the Sanctity Applies: Olei Bavel and Olei Mitzrayim

Since the second sanctification took effect through Jewish settlement, it applied wherever Jews settled during the Second Temple period. As the settlement of olei Bavel expanded, so too did the boundaries of the sanctity, and these areas became known as gevul olei Bavel, “the territory of olei Bavel.” At first, those who ascended from Babylonia settled in Yehuda and Binyamin. In later generations, as the Hasmonean kingdom expanded Jewish rule, and as immigration and natural population growth continued, Jewish settlement spread to Shomron, the Lower and Upper Galilee, the coastal plain from Ashkelon to Akko, the Golan, and the eastern side of the Jordan.

When Ezra and his court sanctified the places of Jewish settlement, the sanctity was reawakened in all the areas previously conquered by olei Mitzrayim, on both sides of the Jordan, and even extended to Syria. However, they determined that in gevul olei Bavel, the sanctity would apply by Torah law, while in gevul olei Mitzrayim and Syria, it would apply only by rabbinic enactment.

The Men of the Great Assembly could have determined that the second sanctification would extend fully to all of gevul olei Mitzrayim and Syria. Since those areas were not properly settled by Jews, however, they left them subject only to a less stringent rabbinic obligation, thereby easing matters somewhat for the poor. At the same time, they did not leave these regions outside the obligation entirely. They wanted the poor living there to benefit from terumot and ma’asrot and from produce being left ownerless during shemita. Thus, these areas had an intermediate status: not the full status of gevul olei Bavel, but not the status of ordinary territory outside the Land either.

A similar distinction existed even within the broader area of gevul olei Bavel. Some cities, such as Beit She’an and Ashkelon, were inhabited mainly by non-Jews, and the Sages did not give them the full status of the rest of gevul olei Bavel (Ḥagiga 3b; Ḥullin 7a). In those days, people knew which places had the full status of gevul olei Bavel, which places had the lesser status of gevul olei Mitzrayim or Syria, and which cities were treated more leniently because they were not properly settled by Jews. Over time, however, that knowledge was forgotten, and the authorities disagree about the status of these places, as explained below in section 12.

In any case, once the Men of the Great Assembly sanctified the Land with respect to the communal-national mitzvot dependent on it, they did not need to sanctify each additional place where Jewish settlement later expanded during the Second Temple period. Rather, as Jewish settlement spread, the sanctity spread with it. Even after the destruction of the Second Temple, that sanctity remained throughout gevul olei Bavel, for any place sanctified through the second sanctification never loses its sanctity again. As explained above in section 7, the Sages derived that after the second sanctification, through which the Men of the Great Assembly sanctified the Land, the Jewish people would never again need to sanctify it. It follows that when we say that in gevul olei Mitzrayim one is obligated in the communal-national mitzvot only rabbinically, this refers specifically to places that did not have organized Jewish settlement during the Second Temple period. ^[9]

09. The Decree of Impurity upon Eretz Ha-amim

During the Second Temple period, the Sages decreed impurity upon eretz ha-amim, “the lands of the nations” – that is, places outside gevul olei Bavel where there was no organized Jewish settlement. The reason for the decree was that non-Jews would sometimes bury their dead directly in the ground, without a coffin. Over time, bones from the dead could become scattered, broken, and mixed into the earth until they were difficult to identify. Since even a bone from a corpse, whether Jewish or non-Jewish, imparts impurity through contact if it is at least the size of a barley grain, the Sages decreed that one who touches the earth of eretz ha-amim is treated as one who touched a corpse and becomes impure.

The decree had another purpose as well: to prevent Jews from leaving the bounds of Jewish settlement, for that was where the mitzva of settling the Land was being fulfilled properly. The Sages wanted Jewish settlement, and the sanctity that accompanied it, to spread gradually and firmly, rather than have Jews scatter among non-Jews in places that would not be regarded as truly possessed by the Jewish people. Indeed, the decree proved effective, as people refrained from leaving the area of Jewish settlement even temporarily. This is also reflected in the fact that they referred to places outside the area of Jewish settlement as “outside the Land” and eretz ha-amim, even when those places lay within the broader borders of Eretz Yisrael (Gittin 76b).^[10]

Since kohanim are forbidden to become impure through contact with the dead, once the Sages decreed impurity upon eretz ha-amim, kohanim were prohibited from leaving gevul olei Bavel. They were permitted to leave only for a significant need, such as to protect their property, to marry, or to study Torah (Avoda Zara 13a). Today, when the laws of ritual purity are not practiced, kohanim may leave gevul olei Bavel. What remains is the general prohibition, which applies to every Jew, against leaving Eretz Yisrael. ^[11]

10. Ḥalla

One is obligated to separate ḥalla in Eretz Yisrael by Torah law only when the majority of the Jewish people are in the Land. As the Torah states: “When you come to the land to which I bring you, then it shall be, when you eat of the bread of the land, you shall set aside a gift to the Lord” (Bamidbar 15:18–19). The Sages derive from the phrase “when you come” that the Torah obligation applies only when the Jewish people enter the Land as a whole, not when only part of the nation enters (Ketubot 25a). Therefore, in the days of Ezra, when only part of the nation returned to the Land, the obligation to separate ḥalla did not apply by Torah law. Nevertheless, the Men of the Great Assembly, led by Ezra the Scribe, enacted that ḥalla be separated even when the majority of the Jewish people are not in the Land (MT, Laws of First Fruits 5:5).

The Sages went further and required ḥalla to be separated throughout the world, so that the laws of ḥalla would not be forgotten from the Jewish people (Bekhorot 27a; MT, Laws of First Fruits 5:7). They enacted this specifically for ḥalla, and not for terumot and ma’asrot, because ḥalla resembles personal obligations more than mitzvot tied to the soil: the obligation begins when one kneads dough (Tosafot, Kiddushin 36b). In addition, ḥalla is relevant to everyone, whereas terumot and ma’asrot are relevant only to farmers (Mahari Kurkus to MT, Laws of First Fruits 5:7).

Once the Sages decreed impurity upon eretz ha-amim – that is, upon all areas outside the settlement boundary of olei Bavel – ḥalla could no longer be eaten in those impure places, since ḥalla is sacred and may be eaten only by someone who is ritually pure. Therefore, in Eretz Yisrael within gevul olei Mitzrayim, the Sages required two portions of ḥalla to be separated. The first portion was the rabbinic amount – one forty-eighth of the dough – and was burned because it was impure. This preserved the awareness that ḥalla is sacred and may not be eaten by someone who is ritually impure. The second portion could be any amount the owner chose, even the smallest amount, and was given to a kohen. This preserved the awareness that ḥalla is not only sacred, but also a priestly gift meant to be eaten by kohanim.

Kohanim were permitted to eat this second portion even while ritually impure, provided they were impure only through contact with an external source of impurity. If, however, the impurity originated in the body, such as impurity from a seminal emission or nidda, the kohen could eat this ḥalla only after immersing for purification.

In Syria and other lands outside Eretz Yisrael, where the basis of the obligation of ḥalla is lower, the law is different. If a kohen is available who is not impure with body-derived impurity – such as a minor who has never become impure in that way, or an adult who has immersed – one separates a single portion of ḥalla and gives it to him to eat. If no such kohen is available, two portions of ḥalla are separated. The first, even the smallest amount, is burned, preserving the awareness that ḥalla may not be eaten in impurity. The second, in the rabbinic amount of one forty-eighth of the dough, is given to a kohen to eat, even if he is impure with body-derived impurity (Mishna, Ḥalla 4:8; Bekhorot 27a; MT, Laws of First Fruits 5:7–11).^[12]

Since we no longer have the ashes of the red heifer and cannot become purified from corpse impurity, kohanim today cannot eat ḥalla in Eretz Yisrael. Therefore, in Eretz Yisrael, one separates a single portion of ḥalla, of any size, and burns it. Some maintain that the same practice applies outside the Land as well. The original reason for separating two portions of ḥalla outside the Land was to preserve the memory of ḥalla being eaten by kohanim in the Land. Once ḥalla is no longer eaten by kohanim in the Land, there is no reason to separate an additional portion outside the Land for a kohen to eat. Instead, one separates only one portion and burns it, as is done in Eretz Yisrael. This is the widespread practice (above, 11:4, note 2).

11. Terumot and Ma’asrot: By Torah Law or Rabbinic Enactment?

 All agree that the Men of the Great Assembly sanctified the Land a second time so that the Jewish people would once again become obligated in the communal-national mitzvot dependent on the Land, including terumot and ma’asrot.

The Amora’im and Rishonim disagree, however, regarding the level of that obligation: did the second sanctification restore the Torah obligation to separate terumot and ma’asrot, or did it establish only a rabbinic obligation? According to many Rishonim, once the Men of the Great Assembly sanctified the Land, one was once again obligated by Torah law to separate terumot and ma’asrot. However, after the destruction of the Second Temple, authorities disagree about whether that Torah obligation continued. Some maintain that it remained in force, as the Land had been sanctified forever (Rashi, Raavad, and Kaftor Va-feraḥ). Others maintain that after the Temple was destroyed, the obligation to separate terumot and ma’asrot became rabbinic (Rashba, Ritva, Ran, and Sefer ha-Teruma).

According to Rambam, even after the Men of the Great Assembly sanctified the Land, one was obligated to separate terumot and ma’asrot only by rabbinic enactment. Terumot and ma’asrot, like ḥalla, apply by Torah law only when the majority of the Jewish people dwell in the Land. Nevertheless, the sanctification performed by the Men of the Great Assembly was halakhically effective: the Land once again had the sanctified status necessary for terumot and ma’asrot. Therefore, when the majority of the Jewish people are not in the Land, one is obligated only rabbinically; once the majority of the nation is in the Land, one will be obligated to separate terumot and ma’asrot by Torah law, without any need to sanctify the Land again. This is the accepted position among the Aḥaronim. ^[13]

12. Other Areas with Respect to Terumot and Ma’asrot

As we learned above in section 8, when the Men of the Great Assembly sanctified the Land, they sanctified the place of settlement – that is, gevul olei Bavel, the area settled by those who ascended from Babylonia. As a result, the sanctity was also reawakened in all the places conquered by olei Mitzrayim, on both sides of the Jordan, and even spread to Syria. The Sages determined that by virtue of that sanctity, the communal-national mitzvot dependent on the Land would apply in all these places. The difference was in the level of obligation: in gevul olei Bavel, the basis of the obligation was Torah law, while in gevul olei Mitzrayim and Syria, it was rabbinic. Later, Yoḥanan the High Priest instituted the enactment of demai. Under this enactment, one who purchased produce from amei ha-aretz had to separate the tithes and terumat ma’aser out of doubt. Yoḥanan determined that this enactment would apply in gevul olei Bavel, but not in gevul olei Mitzrayim. According to most Rishonim, this is the only difference between gevul olei Bavel and gevul olei Mitzrayim with respect to terumot and ma’asrot, and this is how the Aḥaronim ruled.

However, some Rishonim maintain that the difference between them is more extensive. They argue that in the territory of olei Bavel one must separate terumot and ma’asrot from all fruits and vegetables by rabbinic enactment, whereas in the territory of olei Mitzrayim one must separate only from grain, wine, and oil, the only categories that, according to most Rishonim, are subject to terumot and ma’asrot by Torah law (Rashi, Raavad, and Kaftor Va-feraḥ). ^[14]

In practice, the Aḥaronim agree that one must separate terumot and ma’asrot from all types of produce even in gevul olei Mitzrayim and Syria; only the enactment of demai does not apply there (Sha’arei Tzedek 13:44; Gevulot Ha-sadeh 3:8). As for cities formerly inhabited mainly by non-Jews, one could have relied on Rambam’s view and exempted them from terumot and ma’asrot altogether. However, since the precise location of the exempt areas is uncertain, and according to most Rishonim these cities remain obligated, the ruling is to separate there without a berakha (see Mishpetei Eretz 3:6).

Regarding Syria, all agree that as a matter of basic law, one must separate terumot and ma’asrot there. Nevertheless, many had the practice not to separate them. They maintained that even land purchased by Jews was not truly theirs, because ultimate ownership remained with the king. If so, the produce was considered to have grown on non-Jewish land; and in Syria, produce grown on non-Jewish land does not require terumot and ma’asrot, even if a Jew completed the final processing of the fruit (Gittin 47a; above, end of note 4). In practice, however, the authorities write that one must separate terumot and ma’asrot in Syria from produce grown on land registered in a Jew’s name. ^[15]

13. Terumot and Ma’asrot Outside the Land

As we learned above in section 5, the prophets and later Sages required terumot and ma’asrot to be separated in four lands adjacent to Eretz Yisrael: Babylonia, Egypt, Ammon, and Moav. Even after the Sages decreed impurity upon eretz ha-amim, they allowed kohanim to eat the teruma separated in those lands, provided the kohen was not impure with body-derived impurity, as explained above in section 10. Ma’aser sheni, however, could not be brought to Jerusalem to be eaten there. Instead, it was redeemed onto money, and that money was brought to Jerusalem and used to purchase food there (MT, Laws of Ma’aser Sheni 1:14). Since shemita does not apply outside the Land, they required terumot and ma’asrot to be separated there even during the seventh year.

In practice, already in the Geonic period, the accepted custom was not to separate terumot and ma’asrot in the four lands adjacent to the Land. The Geonim explained that once people no longer maintained ritual purity, the enactment requiring terumot and ma’asrot outside the Land no longer applied. Although Rambam and SA rule that one must separate terumot and ma’asrot in those four lands, and some maintain that this remains the preferred practice, the accepted custom is not to separate terumot and ma’asrot outside the Land at all. ^[16]

14. Shemita

Nearly all Tanna’im agree that about 150 years before the destruction of the First Temple, when the king of Assyria exiled the tribes of Reuven, Gad, and half of Menashe, shemita and yovel ceased to apply by Torah law. These mitzvot apply by Torah law only when Israel dwells properly in its Land, with the majority of each tribe in its inheritance (Arakhin 32b; Peninei Halakha: Shemita Ve-yovel 5:4, note 3). Thus, when the Men of the Great Assembly sanctified the Land with respect to shemita and yovel, the conditions for Torah obligation had not yet been restored. During the Second Temple period, therefore, the Jewish people were obligated to observe them by rabbinic enactment. That sanctification remained effective for the future as well: when Israel returns to its Land, each tribe to its inheritance, shemita and yovel will again apply by Torah law, without any need to sanctify the Land again.

Even after the destruction of the Second Temple, the rabbinic obligation to observe shemita was not nullified. True, uncertainty emerged regarding which year is the seventh year. In addition, some Rishonim maintain that once the court that sanctified the months and counted the years no longer functioned – about 300 years after the destruction of the Second Temple – the obligation of shemita ceased as well. According to them, observing shemita today is proper only as a pious practice (Razah and Raavad). In practice, however, the overwhelming majority of Rishonim and Aḥaronim maintain that even today one must observe shemita by rabbinic enactment, following the accepted count transmitted to us (Peninei Halakha: Shemita Ve-yovel 5:6–7, notes 5–6).

One must observe shemita in gevul olei Mitzrayim and Syria as well. However, the prohibition of sefiḥim – produce that grew on its own during shemita – was enacted specifically for gevul olei Bavel, not for gevul olei Mitzrayim or Syria (Rambam, Sefer Mitzvot Gadol, Sefer ha-Ḥinukh, and others). Some authorities are even more lenient and maintain that in gevul olei Mitzrayim and Syria, shemita produce may be eaten even after the time of bi’ur. According to another view, produce grown there does not have the sanctity of shemita at all. ^[17]

15. Gifts to the Poor

The mitzvot of leket, shikḥa, pe’a, peret, and olelot – the gifts left in the field for the poor – apply by Torah law only in Eretz Yisrael. Just as the Sages required terumot and ma’asrot to be separated in lands near Eretz Yisrael, they similarly required the gifts to the poor to be left outside the Land (Rambam; Tur, YD 332:1). Some maintain that this requirement applied only in lands adjacent to Eretz Yisrael (Itur; Shakh 332:2).

Although the requirement to separate terumot and ma’asrot outside the Land was no longer practiced from the time of the Geonim, the requirement to leave the gifts to the poor remained in force. Teruma and ma’aser sheni depend on the laws of purity and on the Temple service; once those conditions were no longer present, the requirement outside the Land no longer served its purpose. Gifts to the poor, however, continued to serve their purpose even outside the Land, since poor Jews could still benefit from them. Therefore, even after the destruction of the Temple, the requirement to leave those gifts remained in place. Today the practice is not to leave the gifts to the poor, as explained above in 6:9, because poor people do not generally find it worth the effort to collect them.

The authorities disagree about the status of the gifts to the poor in Eretz Yisrael today: must one leave them by Torah law, or only by rabbinic enactment? This dispute turns on whether the mitzva is classified as an individual mitzva or as a communal-national mitzva, as explained above in section 4 and at the end of note 2. Some maintain that today one must leave the gifts to the poor only rabbinically (Sefer ha-Ḥinukh 216; Pe’at ha-Shulḥan 4:39). Others maintain that one must leave them by Torah law (Minḥat Ḥinukh 216:15; Degel Reuven II, 28–29), and that this Torah obligation applies throughout all of gevul olei Mitzrayim (Yeshu’ot Malko to MT, Laws of Terumot 1:26).

16. Priestly Gifts from Livestock

Regarding reishit ha-gez, the first shearing of one’s sheep, the Tanna’im disagree whether the mitzva applies outside Eretz Yisrael. In practice, the halakha follows the view that one gives reishit ha-gez only in the Land, just as one separates terumot and ma’asrot only in the Land (Ḥullin 136b; SA, YD 333:1). Regarding reishit ha-gez in Eretz Yisrael today, authorities disagree whether one must give it by Torah law or only by rabbinic enactment, as with terumot and ma’asrot. ^[18]

Regarding the foreleg, cheeks, and maw, according to all authorities, in areas under Jewish sovereignty these gifts must be given by Torah law.

Outside the Land, however, authorities disagree. Many authorities maintain that the foreleg, cheeks, and maw follow the same model as reishit ha-gez and terumot and ma’asrot: since those mitzvot do not apply outside the Land, these gifts are not given there either (Rashi, Tosafot, Ha-ma’or, Rashba). Others maintain that only reishit ha-gez, which was compared to terumot and ma’asrot, does not apply outside the Land. The foreleg, cheeks, and maw, however, come from an animal and not from the soil, and therefore the mitzvot associated with them apply outside the Land as well (Rambam, MT, Laws of First Fruits 9:1). In practice, the custom outside the Land is not to give these gifts to a kohen, though some meticulous individuals made a point of doing so (SA, YD 61:21). ^[19]

17. The State of Israel Today

All areas under the sovereignty of the State of Israel have the status of gevul olei Bavel with respect to the Land-dependent mitzvot. In terms of the Land’s sanctity, the basis for the communal-national mitzvot dependent on the Land applies there by Torah law. This applies even to places that were part of gevul olei Mitzrayim – where, during the Second Temple period, these mitzvot applied only rabbinically – once they come under Jewish sovereignty.

As we learned above in section 7, the second sanctification, in the days of Ezra, sanctified the Land for all generations. The Torah states: “The Lord your God will bring you to the land that your fathers inherited, and you shall inherit it…” (Devarim 30:5). The Sages derived from this that there would be a first inheritance and a second inheritance, but not a third. In other words, the Land needed to be sanctified once in the days of Yehoshua and again in the days of Ezra, but it would never need a third sanctification. From here they learned that even after the destruction of the Second Temple, the sanctity of the Land for its mitzvot was not nullified (Yevamot 82b; MT, Laws of Terumot 1:5; above, section 7).

During the Second Temple period, only the areas settled by olei Bavel were sanctified by Torah law, since that sanctification took effect through Jewish settlement. Since there is no third sanctification, it follows that when the boundary of Jewish settlement expands, the same sanctity applies in those additional areas as well. This is what happened during the Second Temple period itself: at first, the sanctified area was limited to the region around Jerusalem, where Jewish settlement was concentrated; as settlement spread, the same sanctity applied in each place that became part of that settlement. Once an area had been sanctified through the settlement of olei Bavel, its sanctity did not lapse even after the destruction of the Temple.

So too in our time: wherever Jewish sovereignty and settlement extend, the sanctity of the Land for its mitzvot applies there as it does in gevul olei Bavel.

Even according to those who maintain that the second sanctification was nullified with the destruction of the Second Temple, areas of Eretz Yisrael under the sovereignty of the State of Israel are sanctified for the Land-dependent mitzvot by Torah law, for the State acts in the name of the Jewish people as a whole. As Rambam writes: “The Land of Israel referred to in every context means the lands conquered by a king of Israel, or by a judge, or by a prophet, with the consent of the majority of Israel; this is what is called kibbush rabim” (MT, Laws of Terumot 1:2). He writes further: “All lands that Israel conquers under a king and by the authority of a court constitute kibbush rabim, and they are like Eretz Yisrael conquered by Yehoshua in every respect” (MT, Laws of Kings and Wars 5:6). Maran Rav Kook zt”l ruled that in the absence of a king, that authority passes to the nation as a whole, and whatever is done in the name of the Jewish people has full halakhic force. The Jews living in the Land therefore represent the nation in this regard (Mishpat Kohen 144; Horayot 3a). ^[20]

Therefore, in all areas under the sovereignty of the State of Israel, one must separate terumot and ma’asrot with a berakha. One may also separate from produce grown in one such area for produce grown in another. However, one should not separate from produce grown outside Israeli sovereignty for produce grown under Israeli sovereignty, or vice versa, since according to some authorities, areas under the sovereignty of the State of Israel are subject to terumot and ma’asrot by Torah law, while areas beyond the borders of the State are subject to them only by rabbinic enactment.

When the majority of the Jewish people live in the Land, all agree that terumot and ma’asrot will apply by Torah law in all areas under Jewish sovereignty; see Peninei Halakha: Shemita Ve-yovel 11:3–4, regarding the number of Jews worldwide. ^[21]

01. The Proper Attitude Toward Fruit Trees

Fruit trees hold a special place in halakha and in Jewish thought. Anyone who plants fruit trees to increase the world’s food supply becomes God’s partner in creating and sustaining the world, as it says, “The Lord God planted a garden in Eden, in the east” (Bereishit 2:8). Thus, when the people of Israel enter the Land, they too are called to follow God’s ways and plant fruit trees, as it says, “When you enter the land and plant any tree for food” (Vayikra 19:23; Vayikra Rabba 25:3). Planting fruit trees is also included in the mitzva of settling the Land (Ḥatam Sofer, Sukka 36a). Today, this mitzva is fulfilled primarily by farmers who plant orchards, since the benefit of fruit trees in private gardens is small compared to the fruit grown in orchards for the Jewish people at large.

A person is compared to a fruit tree, as it says: “For man is a tree of the field” (Devarim 20:19). Unlike shrubs, which grow quickly and reach their peak within a short time, trees grow slowly, and only after reaching maturity do they produce fruit. So too, a person’s development is relatively slow compared to that of other living creatures, and only after reaching maturity can he produce fruit and become a partner in sustaining and developing the world. This purpose-oriented ideal is especially evident in fruit trees: although they are generally less beautiful, they do not grow for their own sake; their purpose is to produce fruit that nourishes people and animals. A properly developed person should likewise strive to resemble a fruit tree — sharing his goodness with those around him — rather than living only for himself.

God also taught us to treat fruit trees with proper respect. Even for the Mishkan, God commanded that acacia wood be used — from a non-fruit-bearing tree — teaching how carefully one must treat fruit trees (Shemot Rabba 35:2; Tanḥuma, Vayakhel 9).

The general prohibition of bal tashḥit derives from the prohibition against destroying fruit trees. A fruit tree is the clearest example of something valuable, for it is a source of blessing, producing fruit that sustains and gladdens. Therefore, the Sages said that when a fruit tree is uprooted unlawfully, sorrow is stirred in the world, and the voice of the tree travels from one end of the world to the other, though its voice is not heard (Pirkei de-Rabbi Eliezer 34). Thus, the Torah gave fruit trees a voice and commanded that they not be destroyed. Human history teaches the same lesson: when conquerors destroyed the fruit trees and irrigation systems of conquered lands, history demonstrates they later caused famine and suffering for millions of people. Similarly, modern society must treat natural resources and all the systems that sustain life with respect, caution, and responsibility.

02. The Prohibition Against Uprooting Fruit Trees

The Torah presents this prohibition in the context of warfare: even when Israelite soldiers lay siege to an enemy city, they may not uproot or destroy its fruit trees, as it says: “When you besiege a city for many days, waging war against it to capture it, you shall not destroy its trees by wielding an axe against them; you may eat from them, but you shall not cut them down. Are the trees of the field human beings, that they can withdraw before you into the besieged city?” (Devarim 20:19).

Ramban explains that the prohibition was addressed specifically to soldiers because the turmoil of war can awaken an impulse toward vengeance and destruction; they therefore needed a special warning not to destroy fruit trees. This mitzva also expresses faith that God will grant success to our soldiers: there is no reason to destroy the fruit trees, for after the war those trees will be ours. According to Ramban, the prohibition applies only in Eretz Yisrael and in places Israel intends to settle, and there is therefore also a mitzva to eat from the fruit of those trees during the siege (Ramban to Devarim 20:19; Ramban, Additions to Rambam’s Sefer ha-Mitzvot, positive commandment 6). Most poskim, however, understand that the prohibition against uprooting a fruit tree applies everywhere in the world.

When fruit trees are needed for the siege, they may be uprooted. The Torah teaches that one must first uproot non-fruit-bearing trees, and only if the non-fruit-bearing trees are insufficient for the needs of the siege may one uproot fruit trees as well (Bava Kama 91b). Rambam explains that the primary prohibition is to destroy fruit trees in order to distress those under siege and cause them anguish when they see their trees being uprooted. ^[1]

The prohibition against uprooting a tree also applies when one blocks the irrigation channel that waters it, since this is one of the normal ways of destroying a tree. However, one is liable to lashes only when he destroys the tree with an axe or the like, as it says, “You shall not destroy its tree by wielding an axe against it.” By contrast, one who blocks the irrigation channel violates a Torah prohibition but is not liable to lashes.

Only damaging the irrigation channel or the piping that brings water to the tree is prohibited by Torah law. One who merely stops watering the tree, however, does not violate the prohibition of destruction, even though the tree will die on its own, for a person is not obligated to keep a tree watered. Still, it is the way of the righteous to make the effort to preserve things that benefit life, when the benefit is worth the effort. ^[2]

03. What Is Included in the Prohibition Against Destroying a Fruit Tree

The prohibition against uprooting a fruit tree applies only when the tree produces fruit. If, however, the tree has aged or become diseased to the point that it produces less than a kav of fruit per year (approximately 1,200 cc), it no longer has the halakhic status of a food-producing tree and may be uprooted. For an olive tree, because of its special importance, the rule is stricter: as long as it produces a quarter-kav per year (approximately 300 cc), it may not be uprooted. To be certain that the tree does not produce the required amount, one must observe it for several years. This is especially true of an olive tree, whose yield varies greatly from year to year. Only when it is clear that it cannot produce a quarter-kav in a year may it be uprooted. This is measured according to the owner’s ordinary watering and care: if he waters and tends the tree as he understands the tree’s needs and as he normally does, and despite this it does not produce that amount of fruit, there is no prohibition against uprooting it. ^[3]

One may not uproot even a young sapling that has not yet produced fruit, because it is destined to produce a kav of fruit. Plants that produce foods whose berakha is ha-adama are not included in the prohibition, since the prohibition concerns only uprooting a tree that produces fruit for many years, as explained above, 2:8. ^[4]

Of course, one may prune the branches of a fruit tree in order to enhance its growth. However, when cutting additional branches will not benefit the tree, some maintain that one may not cut them (Mahari Basan 101). In the opinion of most poskim, however, there is no prohibition against cutting branches as long as the tree itself remains alive and healthy (Meiri; Mishneh La-Melekh; Ḥavot Ya’ir; Har Tzvi 2:101; and many others).

Some maintain that one may uproot a fruit tree together with its roots and the surrounding soil in order to plant it in another place where it can survive, as explained above, 2:5. Since the prohibition is to kill a fruit tree, if it is nearly certain that replanting it elsewhere will succeed and the tree will continue living, there is no prohibition (She’elat Ya’avetz 1:76; Shevut Yaakov 1:159; Maharash Engel 3:111). Others maintain that the act of uprooting itself is forbidden, and the fact that the tree will later be planted elsewhere does not help. Moreover, there is a reasonable concern that the tree will not take root in its new location (Ḥatam Sofer, YD 102; Mahari Ashkenazi 34; Zivḥei Tzedek). In practice, it appears that in a case of need, when it is nearly certain that the replanting will succeed, it is permitted. To ensure the success of the replanting, one should use an experienced gardener. When there is doubt whether halakha permits uprooting the fruit tree, one may uproot it in order to replant it as long as it is very likely to survive, even though there remains some risk that it may die.

04 When Uprooting Serves a Greater Need

The Torah frames the prohibition around the act of destruction: “You shall not destroy its tree” (Devarim 20:19). This teaches that when uprooting is not done for the sake of destruction, but for a constructive purpose whose value is far greater than the tree itself, there is no prohibition, since this is not considered destruction (Bava Kama 91b). Therefore, one may uproot fruit trees in order to build a home in their place, or in order to expand a synagogue or mikveh.

Some permit it only for a genuine, essential need, such as when a growing family has made the home too cramped. But for comfort or luxury – such as expanding a balcony when there is no real need or redesigning a garden – they maintain that one may not uproot fruit trees. Others permit it for any significant purpose that would be considered a need among the wealthy, even redesigning a garden or expanding the open space in the garden for strolling.

In practice, it appears that one who wishes to be lenient and uproot a tree for beauty or luxury has authorities on whom to rely, provided that he weighs the matter carefully and waits before deciding, so that he can be certain that this is a genuine desire and not a passing one. It is proper to have the uprooting done by a non-Jew.^[5]

At times, orchard owners wish to uproot their fruit trees in order to plant other trees or vegetables in their place. Since the orchard was planted for livelihood, the financial calculation is central. If the orchard has reached a point where it is no longer worthwhile to maintain it, such as when the cost of upkeep exceeds the value of the fruit, then even though each tree produces far more than a kav per year, it is clear that one may uproot the orchard’s trees and plant in their place trees that can reasonably be expected to generate profit. However, if the orchard is still profitable, but the owner believes that he would earn far more by uprooting the trees and planting others in their place, the matter must be weighed carefully. He should consult knowledgeable people and ask a halakhic authority. Only if it becomes clear that there is indeed a high likelihood that uprooting will lead to significant profit may the authority rule that the trees may be uprooted.

When saplings were initially planted densely, with the intention that they would be spread out over the area once they developed, there is no prohibition against moving them elsewhere, since the transfer is for the sake of the trees. One may also thin out some of the saplings so that the neighboring saplings can develop properly. When one tree harms another, it is permitted to uproot the less beneficial tree, as will be explained in the next section.

05. When the Tree Causes Damage

Sometimes a fruit tree causes damage. In such cases, one may uproot it, since the uprooting is not an act of destruction but a way to remove harm. The Gemara recounts (Bava Kama 92a) that the amora Shmuel noticed that date palms planted among grapevines were harming the vines, to the point that the taste of dates could be detected in the grapes. Since the palms were less valuable than the grapevines, he instructed his sharecropper to uproot them. The Gemara also recounts (Bava Batra 26a) that Rava bar Rav Ḥanan’s palms were planted near Rav Yosef’s vineyard. Birds would come to the palms and then descend and damage Rav Yosef’s grapes, and it was ruled that the palms had to be uprooted so that they would not harm the grapevines. The same rule applies when a fruit tree becomes infected with a disease that will spread to other trees if the tree is not uprooted: one may uproot it to prevent the damage.

When a fruit tree attracts gnats and flies that enter the home and cause great distress, especially when the distress affects neighbors and may even lead to conflict between them, one may cut down the tree if attempts to eliminate the problem by spraying or similar methods have failed. Likewise, when the powerful roots of a fig tree repeatedly penetrate sewage pipes and crack them, one may uproot the fig tree, since this causes significant damage. In cases of doubt, one should ask a halakhic authority.

One may uproot a fruit tree that blocks a window and prevents light from entering the home, since blocking a window’s light is considered significant damage, and people are normally particular about it. However, if the damage can be prevented by cutting the branches that block the window, one must suffice with cutting them, even if this must be done every few months, because avoiding this degree of effort does not permit uprooting a fruit tree (Ḥavot Ya’ir §195). This applies even when one must pay a gardener to cut the branches every few months and the cost exceeds the value of the fruit. Only a commercial orchard may be uprooted when it operates at a loss. In a private garden, however, the tree was not originally planted for financial reasons, and therefore one may not permit its uprooting based on an ordinary financial calculation. It may be permitted only when preventing the damage involves great effort that is difficult to carry out, or a much greater financial cost. ^[6]

06. The Spiritual Danger in Uprooting a Fruit Tree

As we have learned, halakha permits uprooting fruit trees that seriously harm people, whether by attracting gnats or by damaging sewage pipes. It is also permitted to uproot fruit trees in order to build a home in their place or expand one. Still, the matter is not simple. There is a tradition that anyone who uproots a fruit tree brings danger upon himself, as R. Ḥanina said: “My son did not die before his time except because he cut down a fig tree before its time” (Bava Kama 91b). According to most poskim, this danger applies only when one uproots a tree contrary to halakha; when halakha permits the uprooting, there is no danger.

Some poskim, however, understood that even in cases where halakha permits uprooting a fruit tree, one who does so brings danger upon himself. The most direct basis for this view is the ethical will of R. Yehuda He-ḥasid, one of the great early Ashkenazic kabbalists, who warned against uprooting fruit trees. Some were very concerned about all his warnings and maintained that anyone who violates them brings danger upon himself (She’elat Ya’avetz 1:76; Ḥayim Be-yad 24). For this reason, some rabbis were cautious and hesitated to permit uprooting a fruit tree even when it was permitted by halakha. Many recommended, as an added precaution, that the uprooting be done by a non-Jew, who is not prohibited from uprooting a fruit tree, thereby protecting the Jew from danger. ^[7]

07. Bal Tashḥit: The General Prohibition

There is a Torah mitzva not to destroy things that are useful, whether food, utensils, or raw materials. The basis of the mitzva is the Torah’s warning to soldiers not to destroy fruit trees in wartime. If even during war one must be careful not to destroy, then all the more so in ordinary times. From here we learn that one who breaks utensils, tears clothing, demolishes a building, or blocks a spring without need violates the prohibition of bal tashḥit. ^[8]

The prohibition reflects a clear moral principle. A person should treat useful things with respect and care for their preservation. Even if a certain food is of no use to him because it is not to his taste, he is not alone in the world. There are other creatures, human beings and animals alike, that can benefit from it. One must therefore be careful not to destroy it for no reason.

The prohibition of bal tashḥit also includes destroying natural resources. If even in wartime the Torah forbids soldiers to destroy fruit trees unnecessarily, and even by Torah law forbids destroying the irrigation channel that brings water to a fruit tree (see above, section 2), then certainly in ordinary times one may not destroy or pollute natural resources. In the past, human beings had only a limited ability to harm the environment, so the prohibition focused mainly on damaging fruit trees or the channels that watered them. In recent generations, however, technology and population growth have greatly increased humanity’s ability to pollute the air, soil, and water, and to cause destruction. A great responsibility therefore rests on the leaders of every country and community to establish laws and regulations protecting the environment, and there is a Torah mitzva for every person to observe these laws in order to prevent the destruction of natural resources. Similarly, the Sages said (Kohelet Rabba 7:13): “When God created Adam, He took him around to all the trees of the Garden of Eden and said to him: ‘Look at My works, how beautiful and excellent they are. Everything I created, I created for you. Take care not to ruin and destroy My world, for if you ruin it, there will be no one to repair it after you.’”

Destruction for a Legitimate Purpose

When destruction is done for an important reason, it is not considered destruction and is not prohibited. Therefore, one may destroy fruit for financial reasons. For example, if the market is flooded with inexpensive fruit, and unless some of the fruit growing in the fields is destroyed it will no longer be worthwhile to pick and cultivate the crop, one may destroy part of it (see Ta’anit 20b).

For the same reason, the mitzva for a groom to break a glass under the ḥuppa does not violate bal tashḥit. It serves the mitzva of recalling the sorrow over the Temple’s destruction at the height of his joy (Berakhot 31a; Rema OḤ 560:2). Similarly, a mourner has a mitzva to tear his garment for the deceased. This is not prohibited as bal tashḥit, since it is a mitzva through which he honors the deceased and mourns him. Nevertheless, a mourner can go too far in the number of garments he tears for the deceased; at a certain point, the tearing becomes destructive (Bava Kama 91b).

The Gemara recounts (Shabbat 105b) that when members of the household of one of the great amora’im acted improperly, he wanted to educate and rebuke them, and to show them the severity of what they had done. He therefore made himself appear angry and broke a utensil before them, as if to say: nothing retains its value when people act so terribly. Since he remained in control of himself, he was careful not to destroy an important utensil, and instead broke one that was already about to break. Although even this involved a degree of destruction, it was done for educational benefit and was therefore not prohibited. It is forbidden, however, to break utensils in a fit of uncontrolled anger, for such anger is itself severely prohibited. The Sages said (Shabbat 105b): “Anyone who becomes angry is as if he worships idols,” for one who loses control in anger becomes enslaved to his anger, and in this sense is considered like one who worships idols. ^[9]

09. Destroying Food and Treating It Disrespectfully

Destroying food is especially serious. Food sustains human life, and the prohibition of bal tashḥit is itself stated in connection with food. The Sages therefore added safeguards and warnings to keep people from wasting food, especially bread, which is the basic staple of human sustenance.

The Sages warned not to pass a filled cup of liquid over bread, lest some of the liquid spill onto the bread and make it unfit to eat. One may likewise not place a possibly dirty utensil near bread, lest it ruin the bread. This applies to other foods as well – one may not do anything that could ruin or destroy them (Berakhot 40b; SA OḤ 171:1). Accordingly, when filling his plate, one should be careful not to take more than he can eat, so that food is not thrown away unnecessarily. When preparing a meal, too, one must be careful not to prepare excessive amounts of food that are very likely to be discarded. If, however, the setting is one in which honor requires serving in abundance, one may prepare and serve large quantities even though some of the food will be thrown away.

One may not sit on a backpack or sack containing foods that may be crushed (SA OḤ 171:2). Similarly, one may not throw foods that may become unappealing as a result. When there is no such concern, one may throw them. For example, one may distribute almonds and pomegranates by tossing them. Likewise, many synagogues have the custom to throw candies when a groom is called up to the Torah. Since the candies are wrapped and there is no concern that they will become unappealing when thrown, there is no prohibition. Bread, however, may not be thrown even onto a clean table, even when there is no concern that it will become unappealing. Since bread is the staple of human sustenance, it must be treated with special respect and not thrown in the way one throws less important foods (SA OḤ 171:1). ^[10]

One may use bread as a utensil to eat another food, provided that the bread is eaten afterward. Those who are meticulous are careful to eat a little of the bread each time, so that it is not degraded by being treated merely as a spoon (SA OḤ 171:3).

10. Leftover Food

When a person feels full, there is no mitzva, not even an act of piety, to finish the food on his plate, even though whatever he does not eat will be thrown away. True, the pious are pained when food is discarded, and they would not waste even a mustard seed for no reason. If they can save something from destruction, they do so (Sefer ha-Ḥinukh §529). Still, since overeating is unhealthy, and bal tashḥit of the body is more serious than bal tashḥit of food that will be discarded, it is better for the food to be thrown away than for a person to eat it unnecessarily (Shabbat 140b). A person may likewise remove from his home unhealthy foods that he or members of his household may be tempted to eat. In times of poverty, it was better for a person to eat whatever he was given, so that he could build up reserves for difficult times. That reality gave rise to the practice of being careful to finish everything on one’s plate. Today, however, when even the poor generally suffer less from hunger than from obesity, it is better to throw away excess food than to eat it unnecessarily. The main care today must come earlier: one should not fill one’s plate with food one does not need, and should not buy unnecessary food in the first place.

A person who prepared a large meal and has a great deal of healthy, tasty food left over may not throw it into the garbage. Rather, he should keep it in the refrigerator or freezer to eat later. If his family alone cannot eat all of it, he should make an effort to share what remains with relatives or neighbors. If poor people would benefit from the food, it is especially praiseworthy to give it to them, thereby saving the food from destruction while also fulfilling the mitzva of tzedaka. Owners of banquet halls and restaurants likewise have a mitzva to give the good food they have left over to educational institutions or poor families. If the effort involved in finding people who will take the leftovers and bringing the food to them is worth more than the value of the leftover food itself, there is no obligation to do so, though one who does is considered especially pious. When it is difficult to find people who would benefit from the leftovers, it is an act of piety to give them to animals, such as dogs or cats, rather than let the food go to waste. However, if a person can use that time for something more important or beneficial, caring for the leftovers does not take priority. True piety means choosing the most beneficial course of action. ^[11]

11. Discarding Clothing and Objects, and Replacing Furniture

A person who owns used clothing may decide that he no longer wishes to wear it and may buy new clothing instead. Even if the used clothing is still wearable, this does not violate bal tashḥit. A person is not required to keep wearing clothing until it wears out. Rather, once it no longer suits him or gives him satisfaction, he may purchase other clothing to replace it. If the clothing is still in good condition, he should try to pass it on to someone who can use it. If he gives it to the poor, he also fulfills the mitzva of tzedaka. The same applies to used utensils and furniture. A person is not required to keep using them until they wear out; once they no longer suit him or bring him satisfaction, he may replace them. If others could still benefit from them, however, there is a mitzva to pass them on. Even if he does not personally know anyone in need, he should avoid destroying them for no reason by giving them to secondhand stores or distribution centers for the needy. Furniture and other objects can also be posted on websites for selling or giving away used items.

However, when the effort required to find people who will use these items is worth more than the items themselves, there is no obligation to extend oneself. Doing so is only an act of piety, as explained in the previous section and note.

One may cut old tzitzit strings in order to tie new ones in their place. True, with effort, they could be untied and reused. Nevertheless, when this would involve significant effort, one may cut them, even though this destroys them (Ḥayei Adam 11:32). Similarly, one may replace an unattractively written parchment panel in a Torah scroll with one written more beautifully, even though the removed panel will have to be placed in geniza (Sefer Ḥasidim §879). Likewise, one may place old ḥumashim in geniza and purchase newer ones that are more aesthetically pleasing.

People who are financially comfortable may replace kitchen cabinets, countertops, flooring, and furniture, even when these are still in good condition, since they are doing so to bring themselves satisfaction and not to destroy the old items. Still, they should make an effort to find people who will benefit from the furniture they are replacing. The proper standard seems to be how such conduct would be viewed by the overwhelming majority of their peers at the same social and economic level. If those peers would consider it destructive and excessively wasteful, then replacing these items involves a violation of bal tashḥit. They avoid the prohibition only if people can be found who will benefit from the items being replaced, or if the project provides work for people who need employment to support their families. In such cases, even though they are acting with great extravagance, they do not violate bal tashḥit.

12. Respectful Disposal of Leftover Food

Even when there is no prohibition of bal tashḥit in throwing away leftover food, one must be careful not to disgrace it by actively destroying it, especially leftover bread. Therefore, if pieces of bread larger than an olive’s volume remain on the table at the end of a meal, one may not wash the table while they are still there, since wetting them ruins them and is considered destroying them (SA OḤ 180:3). Rather, the leftover bread should be wrapped and placed in the garbage respectfully.

If crumbs smaller than an olive’s volume remain after the meal, there is no prohibition against disposing of them, even disrespectfully. Nevertheless, the Sages said that it is proper not to disgrace them, but to gather them respectfully. One who throws crumbs onto the floor is, in effect, spurning the goodness that God has bestowed upon the world. Because he fails to recognize that goodness and to honor bread properly, Heaven withholds its blessing from him, until he is reduced to poverty. There is also a spiritual dimension to this. The Sages said that the angel appointed over food and livelihood is named Nakid, meaning “cleanliness,” while the angel appointed over poverty is named Naval, meaning “filth.” Therefore, where food crumbs are left on the floor, the angel of poverty dwells; but where there is cleanliness, the angel of wealth dwells (Pesaḥim 111b; Ḥullin 105b).

One should therefore be careful not to leave crumbs scattered on the floor, and not to sweep them from the table onto the floor. Rather, they should be gathered and thrown into the garbage or into water. Although throwing them into water will ruin them, since they are smaller than an olive’s volume, there is no prohibition against disposing of them. One must simply be careful not to disgrace them by throwing them onto the ground (SA OḤ 180:4; MB 10).

It is permitted, and to some extent even proper, to throw leftover bread into the yard so that birds can eat it. This applies only to a small amount of crumbs. If many pieces of bread remain, the birds are unlikely to eat them quickly, so leaving them outside would show greater disrespect to the bread and may also bother the neighbors. For the same reason, one certainly should not leave leftover bread on top of a public garbage bin. When there is a relatively large amount of leftover bread, it should be wrapped in a bag and placed in the garbage.

One who sees bread or another food in a place where people walk and it is being disgraced should, out of respect for the food, lift it onto a rock or place it at the side of the path, where it will not be stepped on (Eruvin 64b; Beit Barukh 45:31).

13. Non-Fruit-Bearing Trees

In general, the prohibition of bal tashḥit applies to things that are useful. A non-fruit-bearing tree, however, was not considered important enough for the prohibition of bal tashḥit to apply to it (MT, Laws of Kings and Wars 6:9). Today, however, the situation is different. As the world’s population has grown and more people live in crowded apartment buildings, ornamental gardens have become highly valued. They allow people to enjoy the beauty of nature and its contribution to health, and people are willing to spend money cultivating them. As a result, all trees, shrubs, and flowers that people normally grow and tend have monetary value, and one who destroys them violates a Torah prohibition. In addition, non-fruit-bearing trees help purify the air.

As an act of piety, one should avoid needlessly harming any living creature or plant, even when it presently has no monetary value. It is not fitting to harm any created thing, for nothing in the world was created in vain. Every creature has its own unique value, and through it one can gain a deeper understanding of the purpose of the Creator of the world. The Sages likewise said (Bereishit Rabba 10:6): “There is not a single blade of grass that does not have a heavenly force above that strikes it and says, ‘Grow.’” Similarly, the Zohar teaches that every plant, even the smallest, has a higher force above, and everything done with it in this world comes through that force (Zohar III 86a). Although we have not yet merited to understand all the wisdom hidden within trees and plants, nor can we grasp the secret of their song, which constantly praises God, we can still be moved by the beauty of creation and by the wisdom and greatness of the Creator. In a similar vein, the Sages teach that the earth’s covering of vegetation is like a beautifully set table, prepared so that a person can fulfill his God-given purpose with splendor and dignity (see Vayikra Rabba 11:1). Piskei Tosafot, Pesaḥim 132, states that one who cuts down a non-fruit-bearing tree will see no blessing. The Sages also said (Ketubot 112b): “In the future, all non-fruit-bearing trees in Eretz Yisrael will bear fruit.” Thus, even non-fruit-bearing trees contain something of the power of fruit trees.

All this points to the value of preserving plant and animal species and preventing them from disappearing from the world. It also makes clear that one must observe the laws enacted to protect wildlife and protected wild plants. These laws rest on two foundations. First, preserving creation in all its variety has intrinsic value. Second, laws enacted by the public’s representatives are binding on everyone, both by virtue of the community’s authority to establish regulations and by the principle of dina de-malkhuta dina.

Nevertheless, when human needs conflict with the preservation of a particular animal or plant species, human needs take precedence, provided the matter is handled thoughtfully and not with contempt for the environment or disregard for its needs. This concern for the environment also includes a mitzva to preserve its cleanliness and the beauty of nature, and to refrain from throwing garbage in places not designated for it. In Eretz Yisrael, this care is connected to the mitzva of settling the Land (see Ketubot 112a).

14. The Rabbinic Enactment Not to Raise Small Livestock in Eretz Yisrael

During the Second Temple period, the Sages saw that goats and sheep sent out to pasture were causing widespread damage to trees and fields, threatening Jewish farmers’ ability to make a living and continue settling the Land. To protect both agriculture and the settlement of the Land, they enacted that small livestock may not be raised west of the Jordan River. “Small livestock” refers to sheep and goats. Because they are nimble, they can reach almost anywhere and graze from nearly any tree or plant, making them the main cause of damage to vegetation. Later history showed the importance of this enactment. After the Arab conquest of the Land, the conquerors were not careful to preserve its vegetation, and their herds destroyed the plant life, turning the Land that had flowed with milk and honey into desolation.

Large livestock, namely oxen and cows, can also damage trees. Nevertheless, the Sages did not prohibit raising them, because they do not impose a decree on the public unless most people can abide by it. Since oxen and cows are needed for plowing, milk, and meat, are difficult to bring from outside the Land over long distances, and cause less damage, the Sages permitted raising them in the Land. Their owners must still guard them carefully, and if the animals damage fields, the owners must pay for the damage.

Small livestock, by contrast, can be brought from outside the Land, since sheep and goats are capable of walking long distances. The Sages therefore decreed that they may not be raised in the settled areas of the Land. They may be raised only in the deserts and forests of Eretz Yisrael, east of the Jordan River, and in countries near Eretz Yisrael. One who wishes to buy small livestock for meat for a festival or wedding may buy it and keep it for up to thirty days, provided that it is not taken out to graze; rather, he must bring it its food. Meat sellers may likewise bring in small livestock for sale, provided they do not keep them for more than thirty days and do not let them graze in fields or gardens (Bava Kama 79b–80a; MT, Laws of Damage to Property 5:2, 7). ^[12]

15. Raising Small Livestock in Our Times

During the period when the Land was desolate, without Jewish orchards or fields, the prohibition against raising small livestock lapsed (SA ḤM 409:1). After we merited returning to the Land of our ancestors and making its desolate places bloom, the question arose anew. Some maintain that since the reason for the decree is known – to prevent damage to fields – the decree remains in force as long as the reason remains. Since today there are fields that could be damaged by these animals, the decree has regained its force (Yabi’a Omer ḤM 3:7; Shevet ha-Levi 4:227).

1. Tzvi Pesaḥ Frank, however, maintains that when a decree has lapsed for a period of time, it does not come back into force without a new enactment. Since the decree lapsed during the exile, its force expired, and today there is no prohibition against raising small livestock in the Land (Har Tzvi, notes to Tur ḤM 409).

In addition, during the early period of renewed Jewish settlement in the Land, it was accepted practice to raise herds of small livestock. It therefore follows that all the settlers who planted fields and engaged in agriculture settled there with the understanding that small-livestock herders were permitted to graze their animals in open fields, provided they were careful not to damage orchards or vegetable fields. Since the entire enactment was made for the farmers’ benefit, and they agreed that small livestock could be raised around their fields, there is no basis for restoring the enactment (Amud ha-Yemini 23; Tzitz Eliezer 7:24:3).

Moreover, it may be that the reason for the enactment itself no longer applies. Today law-enforcement authorities can reach virtually any place and enforce the law in a way that protects fields from animals. Accordingly, there is no need to restore the enactment.

In practice, since the dispute concerns a rabbinic prohibition, the halakha follows the lenient view, in keeping with the rule that in cases of uncertainty regarding rabbinic law, one may be lenient. Not only may one be lenient in this matter; it is proper to do so. Today, grazing small livestock helps fulfill the mitzva of settling the Land, since grazing makes it possible to hold broad expanses of land and fulfill the mitzva of inheriting the Land, so that it remains in our hands and not in the hands of another nation. Since the original enactment was rooted in the mitzva of settling the Land, when raising these animals benefits the settlement of the Land, doing so is a mitzva.