Orlah, Chapter 1: General Laws of Orlah

An overview of the general laws that govern the prohibition of orlah.

Hilchot Ha'aretz, pp. 122-126

A.     Definition of the Prohibition

The Torah states (Vayikra 19:23-25):

וְכִי תָבֹאוּ אֶל הָאָרֶץ וּנְטַעְתֶּם כָּל עֵץ מַאֲכָל וַעֲרַלְתֶּם עָרְלָתוֹ אֶת פִּרְיוֹ שָׁלֹשׁ שָׁנִים יִהְיֶה לָכֶם עֲרֵלִים לֹא יֵאָכֵל. וּבַשָּׁנָה הָרְבִיעִת  יִהְיֶה כָּל פִּרְיוֹ קֹדֶשׁ הִלּוּלִים לַה'. וּבַשָּׁנָה הַחֲמִישִׁת תֹּאכְלוּ אֶת פִּרְיוֹ לְהוֹסִיף לָכֶם תְּבוּאָתוֹ אֲנִי ה' אֱלֹקיכֶם

When you enter the land and plant any tree for food, you shall regard its fruit as forbidden; three years it shall be forbidden for you, not to be eaten. In the fourth year all its fruit shall be set aside for jubilation before the L-rd. And only in the fifth year may you use its fruit—that its yield to you may be increased: I the L-rd are your G-d.

1. During a fruit tree's first three years, it is forbidden to eat or derive benefit from the fruit.[1] During the fourth year, they are considered neta revay, and it is permitted to eat them after transferring their sanctity (chillul), [2] as we will explain later on in Chapter 8. In the fifth year, they are devoid of sanctity (chullin), and it is permissible to eat them after terumot and ma'aserot are taken.
2. "When you enter the land": The prohibition of orlah is one of the land-dependent mitzvot, and is biblically mandated in the Land of Israel even today.[3] The prohibition of orlah is different from other land-dependent mitzvot, inasmuch as it even applies outside the Land of Israel. However, there the prohibition is only a halacha leMoshe miSinai[4] (as we will explain later on, in paragraphs 12–15).
3. "And plant" – the tree's years are counted from the moment a shoot[5] or seed[6] is planted in the soil. If a tree is transferred and replanted, the orlah year count starts anew.[7]
4. "Any tree for fruit" – the prohibition of orlah applies only to trees, which are defined as perennial plants. Annual plants and other plants not classified as trees are not subject to the prohibition of orlah (see Chapter 3).[8]
5. The prohibition of orlah applies only to trees with edible fruit (etz ma'achal), but not to non-fruit bearing trees (etz serak).[9]
6. "You shall regard its fruit as forbidden." The orlah prohibition includes not only eating the fruit, but also deriving benefit from them,[10] as the verse states, "va'araltem orlato." Rashi explains (Vayikra, 19:23) "[these words literally mean] 'you shall close its closing (regard it as enclosed): the meaning being that it shall be, as it were, closed up and barred so that no benefit may be derived from it."
7. "Its fruit" – the prohibition of orlah applies only to the fruit. The other parts of the tree, in contrast, are not forbidden to eat or benefit from.[11]

B.     Prohibition of deriving benefit from orlah

1. The prohibition of orlah applies not only to consumption,[12] but also to deriving benefit from the fruit; as the verse states "va'araltem orlato," "you shall regard its fruit as forbidden." It follows that orlah fruit may not be used for paint, cosmetics, lighting candles (in the case of orlah olive oil), or for any other use.[13] Similarly, it is forbidden to feed one's livestock or even ownerless domesticated or wild animals.[14]
2. It is forbidden to smell orlah fruit,[15] but one may smell the blossoms of orlah trees (see below, Chapter 2, Section 9).[16]
3. It is forbidden to hang up orlah fruit to decorate one's sukkah. However, if one enters a sukkah with orlah fruits hanging as decorations, it is permissible to enjoy looking at this fruit. Similarly, if one is in an orchard and sees orlah fruit on trees (that are not ornamental), it is permissible to enjoy gazing at them.[17]
4. It is forbidden to sell orlah fruit to non-Jews. Not only are we concerned that these fruits will be resold in Jewish marketplaces,[18] it is prohibited to derive benefit from the sale of the fruit.[19]

C.     The prohibition of orlah inside and outside the Land of Israel

1. Orlah is a biblical prohibition inside the Land of Israel, even today.[20] While the prohibition applies outside the Land of Israel as well, its status is a halacha leMoshe miSinai.[21]
2. The difference between the prohibition in the Land of Israel and that abroad is as follows: within the Land of Israel, in any case of doubt (safek) we are stringent. This follows the rule of safek de'oraita lechumra (we are stringent in cases of doubts regarding biblical laws). In cases of doubt outside the Land of Israel, in contrast, we are lenient and permit the fruit.[22]
3. Commercial fruit-derived products, such as jam and juice, are permitted for this reason, even when produced from fruit of questionable orlah This is because most often, such products use fruit concentrate imported from outside of Israel, and safek orlah outside the Land of Israel is permitted. For instance: in the case of fruit juice that contains passionfruit or papaya, even those who are stringent and prohibit these fruits due to orlah (see chapter 3, section 6) can drink these juices, since juice concentrate is imported.[23]
4. The orlah prohibition outside the Land of Israel not only applies to eating, but also to deriving benefit.[24]
5. Orlah fruit growing throughout the entire Land of Israel is a biblically prohibited, including areas conquered by olei Mitzrayim.[25]

D.     What should be done with orlah fruit?

1. The Sages instituted that signs indicating that fruit trees are orlah need to be posted during the shemita year only. This is to warn the public not to eat the fruit (since fruit is ownerless during this year). During regular years this is not necessary, however, since anyone who would pick fruit without permission is stealing and we are not concerned about preventing such people from sinning.[26]
2. Nevertheless, one should remove orlah fruit from the trees so that family members do not accidentally partake of the forbidden fruit. From an agronomic perspective, it is best to do so early on: at the blossoming stage. This allows the tree to conserve its energy rather than wasting it for naught.[27] Doing so also enhances the quality and quantity of the trees' yield in subsequent years.
3. If one has orlah fruit, they should be destroyed so no one eats them accidentally and thus transgresses this major biblical prohibition.[28] These fruits should be burned, buried, or disposed of in the garbage.
4. Orlah fruit should not be placed in a composter so they can become organic waste.[29]

E.      Fruit belonging to non-Jews

1. The fruits of a non-Jewish orchard owner are also subject to the prohibition of orlah in the trees' first three years.[30]
2. Someone who buys a non-Jew's fruit at the market, and does not know whether or not they are orlah, the fruit is permissible (resting on the principle kol deparish merubah parish).[31] However, if buying from a non-Jew's orchard, or nearby, and one is unsure whether the fruits are orlah (such as if there are both young and mature trees in the orchard),[32] the fruit is forbidden. This is because in this case, the fruit is considered "determined" (kavu'a). In such cases, the halachic principle of kol kavu'a kamechetza al mechetza dami is employed, which applies also to a non-Jew. See Section 7 for further discussion.[33]

F.      The orlah prohibition: the fruit's forbidden status

1. The Torah states: "You shall regard its fruit as forbidden," (Vayikra 19:23). The halachic definition of "fruit" is not identical to its botanical definition. The botanic definition of "fruit" is the seed responsible for the continued propagation of the species; halacha, though, defines "fruit" as the part of the plant that is eaten. It follows that nopales (cactus pads), cultivated as edible leaves, the leaves are also considered fruit and are prohibited for consumption. This is even though its fruit (sabras) are also edible; this is because the plant is grown primarily for its leaves.[34] For such cacti, both the nopales and sabra fruit would be prohibited during the orlah[35]
2. This said, grape leaves on orlah vines are permissible for consumption. Even though grape leaves are sometimes eaten, in contrast to the grapes they are of secondary importance (. Since grape leaves do not enjoy the status of "fruit" in their own right, it is permitted to eat them even during the first three years; only fruit is prohibited during this time, not the leaves.[36]
3. The seeds and peels of orlah fruit are included in the orlah prohibition, since they are of secondary importance (tafel) to the fruit and considered an integral part of it. The verse states "et piryo," the extra et connoting the ancillary parts of the fruit.[37] It follows that one may not eat or derive benefit from orlah orange and lemon peels, for example.[38]
4. When it comes to the caper bush, both the unopened buds (capers) and the fruit (caperberries) are subject to orlah (today caperberries are generally pickled). In contrast, their soft shoots are not halachically considered fruit, even though they are also eaten. This is because capers are grown primarily for the fruit.[39]
5. When bushes are grown for their leaves for use as herbs and tea, but these leaves are thrown away after giving off flavor, they are not subject to orlah Examples include: laurel, lemon verbena, and rose petals (this is despite the fact that some of these plants are considered trees, as they are perennials and renew from the trunk).[40]
6. Khat (gat in Hebrew) is traditionally chewed as a stimulant (primarily by Jews of Yemenite origin, who can chew it for several hours like gum). Since the leaves are chewed and then discarded, and not

[1] Pesachim 22b; Rambam Hilchot Ma'achalot Asurot 10:9.

[2] Rambam, ibid., 10:15.

[3] Shulchan Aruch YD §294:8.

[4] Kiddushin 38b; Rambam, ibid. 10:10.

[5] Yerushalmi, Orlah 1:2. Translator's note: there are two systems generally employed for citing the Yerushalmi: page and folio (like the Bavli) and chapter and halacha. Here we use the latter system.

[6] Radbaz on Rambam, ibid. 10:9.

[7] Mishnah, Orlah 1:3.

[8] Tosefta, Kila'im 3:13–14.

[9] Yerushalmi, Orlah 1:1 'And you shall plant any tree for food.' Whichever [tree] is for food, is obligated.'

[10] Mishnah, Kiddushin 2: 9; Rambam ibid.; Shulchan Aruch YD §294:1.

[11] Mishnah, Orlah 1:7.

[12] It is a biblical prohibition to even drink juice squeezed from orlah fruit. See Rambam, ibid., 10:22.

[13] Rambam, ibid. 10:9; ibid., 16:20–22.

[14] Sefer HaTerumah with Tashlumei HaTeruma (5776), pp. 209–210; Responsa Tashbetz III §293. See also Rabbi Yaakov Epstein, "Non-Jews deriving benefit from orlah,"Emunat Itecha issue 86 (5770), pp. 21–22.

[15] Shulchan Aruch YD §108:7. Some poskim even prohibit smelling fruit that is not grown for its pleasant aroma. See Siftei Kohen on Shulchan Aruch, ibid. §27. Others permit this; see Kerem Zion, Hilchot Orlah, Hilchot Pesukot 12:19 (p.10).

[16] This is because the prohibition applies to the fruit only; the blossoming stage is before the fruit begins to grow. The onset of the orlah prohibition begins with the first stage of the fruit's formation: a vine bud (smadar) or unripe fruit (bosser), and not prior to this stage.

[17] Rabbi Yehuda Amichay, "Orlah sukkah decorations," HaTorah VeHa'aretz V (5760)  pp. 200–206. However, it is forbidden to look at ornamental orlah trees. These trees were planted for the express purpose of visual enjoyment. By gazing at these trees, one would derive benefit from their primary function.

[18] Shulchan Aruch OC §467:1; Shulchan Aruch YD §57:21; ibid., §86:10; ibid., §134:11; ibid., §301:8. See also Neta Hillulim, p. 59, n. 52.

[19] Shulchan Aruch YD §294:13–15. The Shulchan Aruch holds that it is clear that it is prohibited for a Jew to sell orlah fruit to a non-Jew. The discussion here deals will solutions involving partnership with a non-Jew before fruit grows on orlah trees, trading a orlah vineyard with a non-Jew for a mature vineyard, and selling orlah trees to non-Jews for the first three years.

[20] Shulchan Aruch YD §294:8. Orlah is considered a land-dependent mitzvah (see also Mishnah Kiddushin 1:9). Most of the land-dependent mitzvot are not biblically mandated today, since some depend also on the majority of the Jewish People living in the Land of Israel (rov yoshveha aleha). See Sefer HaChinuch §385 on challah. See also Rambam, Hilchot Terumot 1:1,26 on the status of terumot and ma'aserot; and Rambam, Hilchot Shemita 10:8 on yovel. For more on the sanctity of the Land of Israel and the dispute about whether this sanctity voided following the Second Temple's destruction, see  Tosafot, Zevachim 60b, incipit. mai kesavar hai tana. In contrast, orlah is biblically mandated even today.  

[21] Rambam, Hilchot Ma'achalot Assurot 10:10.

[22] Kiddushin 39a: orlah outside the Land of Israel is a halacha leMoshe miSinai  ; Rambam, ibid., 11; Shulchan Aruch, ibid., 9.

[23] While there are small, exclusive companies that sell locally produced passionfruit juice, or ice cream parlors that sell ice creams and slushies that include passionfruit juice produced in Israel—this is very uncommon in the large factories.

[24] See Tosafot, Kiddushin 36b, incipit. kol; Tosafot Rid is lenient on this matter: Sukkah 35a.  Torat Ha'aretz (Kleirs), 9:12; Rabbi Yaakov Ariel, "Orlah in the Aravah region," Emunat Itecha, 53 (5763) pp. 31–32.

[25] The reason for this is that the prohibition of orlah is independent of the conquering or settling of the Land of Israel. Because of this, even in places where the sanctity of the Land of Israel was voided, the biblical prohibition of orlah nonetheless persists. Olei Mitzrayim, (lit. "those who ascended from Egypt") is the region conquered by Yehoshua but not resettled during Ezra's time. This area was sanctified in Yehoshua's time, but the sanctity was voided after the Destruction of the First Temple. In contrast, areas in the Land of Israel resettled in Ezra's time are considered olei Bavel ("those who ascended from Babylonia), whose sanctity persists until today. See the map in Laws of Terumot and Ma'aserot, Chapter 7:B. See also Katif Shevi'it, p. 52 n. 2.

The majority of poskim hold that orlah applies also in olei Mitzrayim. See Neta Hillulim, p. 23, n. 20. See Rabbi Mordechai Eliahu, "Orlah fruit in the open market—rov or kavua," HaTorah VeHa'aretz I (5749) p. 21, n. 20; Rabbi Yaakov Ariel, "Orlah in the Aravah region," Emunat Itecha, 53 (5763), p. 34. Mishne Lamelech on Rambam, Hilchot Ma'achalot Asurot, 10:11, states that the orlah prohibition is rabbinic today since the sanctity of the Land of Israel has been voided. He maintains that both the first and second sanctifications (of olei Mitzrayim and olei Bavel) were temporary (but the final sanctification, in the times of Mashiach, will be permanent). He opines that safek orlah is permitted today even in the Land of Israel. The Acharonim reject this opinion. While some poskim permit safek orlah in the olei Mitzrayim region, mainstream halacha does not follow this approach.

[26] Employing the principle halitehu larasha vayamot (הלעיטהו לרשע וימות), literally "feed a wicked man and he will die"; meaning we are not concerned about preventing sinners from sinning and receiving their subsequent retribution. Mishnah Ma'aser Sheni 5:1, and Rambam's gloss on the Mishnah, ibid.

[27] See HaEmek Davar on Vayikra 19:23 and Oznayim LaTorah, ibid., p. 236.

[28] Rashi, however, in Temurah 33b, equates orlah fruit to kilei hakerem, about which the Torah states פן תקדש, rendered as "lest you set apart," or "cause to be forbidden." The Sages explain the word "תקדש" as an acronym of sorts for "פן תוקד אש", "lest it [the vine/produce] be subject to burning." However, most poskim hold that one need not burn orlah fruit. See Neta Hillulim, p. 62, n. §55.

[29] See Rabbi Yaakov Epstein, "Compost from orlah fruit", Emunat Itecha, 91 (5771), pp. 54–61, 65; see also Rabbi Yoel Friedemann,  "Compost from orlah fruit—a response", ibid., pp. 62–64.

[30] Rambam, Hilchot Ma'aser Sheni 10:5.

[31] According to the halachic principle kol deparish merubah parish (כל דפריש מרובא פריש) if an individual item becomes separated from a group of items that were mixed up, the individual item is assumed to belong to the majority component of the mixture. See Section 7 below on fruit in the market place and fruit belonging to a non-Jew, which is considered definitely parish. See also Shulchan Aruch YD §110:3.

[32] As explained in the Shulchan Aruch, YD §294:9: "A vine that has orlah shoots …". However, it seems that if one does not see any young trees in the orchard, there is no doubt regarding the fruit and it would be permissible to eat the fruit.

[33] Kol kavu'a kamechetzah al mechetzah dami (כל קבוע כמחצה על מחצה דמי) "all fixed objects are similar to the half - is a halachic principle that contrasts kol deparish merubah parish. This principle can be explained as follows: When it comes to any object that has a fixed, determined place (kavu'a) and a doubt arises about it (or its products)—when the question has to do with the fixed object, it is considered halachically as if both options are equivalent (50-50) and we are stringent. This is even in cases where this object is the minority and in other cases it would be nullified by the majority. See Shulchan Aruch YD ibid.; see also Rabbi Yoel Friedemann, "Response to Review: Fruit in the marketplace – rov or kavu'a?" HaTorah VeHa'aretz III (5757), pp.429–431: even in the case of a non-Jew, since the doubt arose in the place of this determination, the halachic principle of kol kavu'a kamechetzeh al machtzeh dami applies.

[34] Note that the leaves of nopal cacti are eaten on their own: raw, fried, and cooked. However, when a tree's leaves are not eaten raw, the orlah prohibition does not apply to them.

[35] See Rabbi Yoel Friedemann, "Orlah with leaves cultivated for human consumption," HaTorah VeHa'aretz V (5760), pp. 119–124, citing  Rabbi Shaul Yisraeli who holds that these leaves are subject to orlah; however, Rabbi Yaakov Ariel, ibid., pp. 124–128 is lenient in this regard, and exempts them.

[36] Mishnah Orlah 1:7, Shulchan Aruch YD §294:2.

[37] Berachot 36b.

[38] Shulchan Aruch, ibid., 1.

[39] Rambam, Hilchot Ma'aser Sheni and Neta Revay 10:3; Gra §11 on the Shulchan Aruch YD §294:3.
Some are stringent regarding the shoots, however. For articles on this topic, see n. 35 above.

[40] According to Rabbi Dov Lior, "Rose petals and lemon verbena leaves vis-à-vis orlah," HaTorah VeHa'aretz V (5760), p. 131; Rabbi Yoel Friedemann, "The obligation of orlah and terumot and ma'aserot with tea leaves," HaTorah VeHa'aretz IV (5759), pp. 15–26. See also Rabbi Mordechai Eliahu, "The obligation for terumot and ma'aserot with tea leaves,"  HaTorah VeHa'aretz IV, pp. 10–14, who is stringent.