Orlah, Chapter 5: Renewal of Trees: Planting, Transplanting, Grafting, Rootsuckers, and Layering

Does the orlah count restart when transplanting trees? For grafted trees, does it begin from the time of the graft or from when the rootstock was planted? On partially uprooted trees, rootsuckers, layered branches, and more.

Hilchot Ha'aretz, pp. 136–140

1. Transplanting fruit trees

2. The orlah count begins from the moment a shoot is planted or the seed is sown, as we explained earlier (see Chapter 1, Section A, §3).[1]
3. If transplanting a tree to a new location, the orlah count restarts, since the new act of planting is included in the category of uneta'atem "and you plant" (Vayikra 19:23). Note that there are instances when it is forbidden to transfer fruit trees, since there is a prohibition "You must not destroy its trees"[2] or due to the mitzvah of settling the Land of Israel;[3] each case should be treated individually.
4. If a tree is transferred from place to place together with the clod of earth that covers the tree's roots, there is no need to restart the orlah count, as long as the clod of earth is sufficient to sustain the tree for two weeks.[4]
5. When transferring a tree together with its clod of earth, but we are not sure that it is sufficient to sustain it for two weeks, the foliage should be pruned to the maximum.[5] Afterwards, one can pursue one of the following two options:
   1. Ask a professional (agronomist) what is the necessary size of the clod of earth to sustain the tree for two weeks.[6]
   2. If there is no agronomist to ask, and one wants to "gain" the orlah years,[7] the tree with its clod of earth should be placed into a hole prepared for planting, but not cover the hole with soil, but rather keep it there for two weeks. The tree should be gently watered;[8] that is, the same amount and at the same regularity it was watered before it was uprooted. After two weeks, look at the leaves. If they are drying and shriveling up, this indicates that the tree is in shock and the clod of earth is not sufficient to sustain it. In this case, the orlah count should be restarted from the time it was transplanted. If the leaves do no shrivel up, however, it is possible to add soil to the hole and cover it up, and the orlah count need not be restarted.[9]
6. A tree that was uprooted partially from the place it grew, but stayed connected to the soil by at least one root,[10] it is possible to replant it in its place. At this point its roots can be covered in soil[11] and watering it in the same amount that it was watered before. Afterwards, check the effect of the uprooting on the tree: if all the leaves shrivel and dry up, it is indicative that this tree, indeed, was uprooted, and the orlah count starts afresh. If this is not the case, the tree is exempt from
7. Grafting

The definition of grafting is to bring into close contact two vegetative parts of plants: leaf, stem, or root. The purpose of this is that they will fuse and a mutual exchange of organic materials and organisms between these two parts—especially between the rootstock (the part planted in the ground) and the scion (the shoot being grafted onto the rootstock). This grafting is accomplished in several ways: eye, top, cleft, crown, veneer grafts, among others. Generally, a hearty tree with a strong root system that is suited for the specific soil type is chosen for the rootstock; the scion is chosen for its fertility and quality of its fruit.[12]

1. Generally, when a scion onto a rootstock, whether in an eye or top graft, the orlah count begins from the moment that rootstock was planted and not from the time of the graft,[13] with the exception of the following cases:
   1. If the scion is grafted onto a rootstock shorter than a tefach (8 cm)[14]: in this case, lechatchila the orlah count should begin from the time of the graft, and not from the time the rootstock was planted.[15] In extenuating circumstances, however, it is possible to be lenient and begin the orlah count from the time the rootstock was planted—even if the rootstock is shorter than a tefach.[16]
   2. If a scion is grafted onto a non-fruit-bearing rootstock, the orlah years need to be counted from the time of the graft and not from the time the rootstock was planted.[17] Non-fruit-bearing rootstocks are those that do not bear fruit; these include trees that produce fruit that is not edible and those that produce male flowers.[18]
2. If two species are grafted onto one another in a forbidden manner (such as a pear onto quince or a plumb onto rootstock 677), one need not restart the orlah count from the time of the graft; rather, the count begins when the rootstock was planted.[19]
3. At times there are rootstocks that do not grow properly, so inarching is performed. This involves planting a shoot in close proximity to the mature tree, its bark is peeled off in certain places, and the young scion is attached to it until the two fuse.
   1. Optimally, one should use a mature scion that is passed its orlah This is not done in practice, however, since from a professional perspective a scion more than three years old is no longer flexible and it is difficult to bend it to the mature tree.
   2. It is preferable to plant the young rootstock and wait two weeks until it takes root, and only afterwards to perform the inarching graft. Alternatively, the young rootstock can be planted together with its clod of earth (that can sustain it, and was taken from a nursery that follows halachic guidelines; see Chapter 6, Sections F and G). In such a case, the tree is considered having taken root even before the two-week period is up.
   3. Even in instances when the young rootstock is planted and inarching is performed immediately, one does not have to restart the orlah count (after the atrophy of the mature rootstock), and its fruits are permissible.[20]

      Rootsuckers and layering

   4. There are fruit trees that sprout shoots from their roots (netzarim, rootsuckers), and these rootsuckers produce fruit. Even though the tree was planted more than three years earlier and the orlah years have passed, the orlah count restarts on these rootsuckers.[21] For this reason, it is important to prune back the rootsuckers and leave the tree with a one trunk (or two). If the suckers were not pruned, and the tree's orlah years are over and there is a doubt regarding the orlah year of the rootsuckers, there are some who permit the fruit growing on the rootsuckets.[22]
   5. "Layering is the bending of a branch of a plant and inserting it into the ground so that it will strike roots and become an independent plant."[23] If a fruit tree shoot is layered (such as a grapevine or an etrog tree) from a tree or vine that has passed its orlah years, the fruits that grow from the layered branch are exempt from orlah. This is as long as the layered branch is still connected to the mother tree and receives its nourishment from it. However, if the layered branch was disconnected from the mother tree or is completely independent and does not receive nourishment from the mother tree, it is subject to orlah.[24]
   6. If there are fruits on the layered branch when it was pruned off the mother tree, the fruits are permitted. However, if the fruits continue to grow on the branch after layering is performed, the additional growth of these fruits assume the orlah prohibition. For this reason, if the fruits grow by an additional 1/200 of their original size, the fruits are forbidden.[25]

[1] The principle is that the orlah years count begins from the time the tree takes root in the ground. See Kessef Mishneh on Rambam, Hilchot Ma'aser Sheni 2:9; Chazon Ish, Orlah §12:5. There is no practical halachic difference, however, since in any case we are stringent and follow the opinion that only fruits that blooms after Tu BiShevat of the tree's fourth year are permitted. See Chapter 2, n. 10.

[2] Devarim 20:19; see also Rabbi Shmuel Zafrani, “Cutting down trees in light of halacha”; Rabbi Shlomo Levy, “Uprooting fruit trees for financial purposes”; Rabbi Yehuda Amichay, “Uprooting trees for a public need” and “Uprooting non-fruit-bearing trees,” HaTorah VeHa'aretz V (5760), pp.217–251; Rabbi Yoel Friedemann, “Uprooting a tree without the knowledge of its owner,“ Emunat Itecha 91 (5771), pp. 73–78.

[3] Bava Metzia 101b; Tosafot, ibid., incipit. basadeh.

[4] See Mishnah Orlah 1:3; Shulchan Aruch, YD §294:19. Regarding the amount of time the tree should be able to subsist off this clod of earth, see Rashba III §225; Rosh, Halachot Ketanot, Orlah §4; Mishpat Kohen §8; Chazon Ish, Orlah §2:11–12. See also the summary of the various opinions in HaTorah VeHa’aretz I, p. 240. Note that the trees that grow in nurseries in a clod of earth grow much less than they would naturally in open areas, since they are cultivated in small pots (generally 5–6 L). This form of cultivation does not allow for the development of a large tree with extensive foliage, as the same tree would develop in open areas. As such, this clod of earth is sufficient to sustain the tree for three of more years.

[5] The size of the clod of earth necessary to sustain the tree is commensurate to the amount of foliage. The less foliage, the smaller the clod of earth needs to be.

[6] Chazon Ish, Dinei Orlah §18; see also Rabbi Yoel Friedemann, “Fundamental issues regarding orlah in nurseries,” HaTorah VeHa'aretz V (5760), p. 77. For more on orlah in nurseries, see also Rabbi Azriel Ariel, “Clarifying halachic issues vis-à-vis the laws of orlah for nurseries,” HaTorah VeHa'aretz I (5749), pp. 189–244. There are several factors that determine the size of the clod of earth that can sustain a tree for two weeks. These include: the clod size, soil type, volume of foliage, and climate conditions. If the planting hole is not covered, the evaporation surface is larger, so the rate of water loss increases. On the other hand, the root area is aired out. There are tools that can help calculate the maximum foliage volume that will maintain the amount of water available for evaporation for a two-week's time. Thank you to Prof. Yiftach Ben Asher for this information.

[7] It is possible that this solution poses a risk, so the possibility should be calculated against the risk.

[8] The tree should be watered gently so that the clod of earth does not crumble, so a watering hose should not be used. To preserve the clod, a drip irrigation system should to be installed. This system should include drip-irrigation pipes with holes no more than 25 cm apart from one another around the clod's entire diameter. The drip system should be placed around the middle of the clod, equidistant from the trunk and the edge of the clod. This ensures that the entire root system receive the maximum irrigation. Trees should be transplanted towards the end of winter, in advance of spring. Thank you to Shlomo Tessler, Nov Nursery, for the information.

[9] Iggerot Moshe I, YD §185, explaining the Tosefta, Orlah 1:3. See also Mishpat Kohen, ibid.

[10] The Mishnah (Orlah 1:4) calls this kamachat shel mitun. That is, a stretching pin used to hold strings and fabric in place when weaving. The root connecting the tree to the soil needs to be at least the size of a stretching pin. Rambam, Hilchot Ma'aser Sheni 10:12 explains: "because it could live [even if not replanted]." The Rashba III §225 maintains that the tree is still considered connected to the soil, even it would not be able to survive from the nourishment received from this root. See also Chazon Ish, Dinei Orlah §18, who explains this is a "root that is especially thin."

[11] Since there is no clod of earth surrounding the roots, as in the case above, it would be impossible to leave the tree as is for two weeks. Leaving the roots exposed to sun and air would cause the tree to dry up.

[12] Prof. Yehuda Felix, Kilei Zera'aim and Grafting (5727), p. 113.

[13] Rambam, Hilchot Ma'aser Sheni 10:16; Mahari Kurkus on the Rambam, ibid.; Maharam Alshich §110. See also Rabbi Yoel Friedemann, “The significance of grafting vis-à-vis the orlah count," HaTorah VeHa'aretz I (5749), pp. 85–101.

[14]  Mishnah, Shevi'it 1:8; Yerushalmi, Shevi’it 1:6 cites a dispute between the Sages and Rabbi Elazar ben Yaakov whether or not a tree cut down to the height of less than a tefach is subject to a renewed orlah count.

[15] Rosh, Halachot Ketanot, Orlah §4, follows the rulings of Rabbi Elazar and Rabbi Shimon.

[16] According to the Rambam, Hilchot Ma'aser Sheni 10:13; and Shulchan Aruch, YD §294:18. Both rule in accordance with the Sages’ opinion. This is also the ruling of Rabbi Chanoch Zundel Grossberg: Neta Hillulim, §44, p. 50 and the gloss Sha'arei Zvi §128; HaTorah VeHaMedina 11–13 (5720-5722), p. 602.

[17] Mishpat Kohen, Hilchot Kila'im, §6; Rabbi Zvi Pesach Frank Har Zvi, Zeraim II §12; Neta Hillulim, §45, p. 53. See also Rabbi Yoel Friedemann, “The orlah count when grafting onto a non-fruit-bearing tree,” HaTorah VeHa'aretz I (5749), pp. 113–114.

[18] HaTorah VeHa'aretz I, ibid., pp. 125–126.

[19] Rabbi Yoel Friedemann, “Orlah as it applies to grafting dissimilar species,” HaTorah VeHa'aretz V (5760), pp. 168–177. See also, Laws of Kila'im, Chapter 8, Section C, §1–2: it is not always necessary to uproot trees grafted in a prohibited fashion.

[20] Rabbi Yoel Friedemann, “Inarching,” HaTorah VeHa'aretz V (5760), pp. 178–187; Rabbi Yehuda Amichay, “Inarching," ibid., pp. 188–195.

[21] Rambam, Hilchot Ma'aser Sheni 10:19.

[22] See Rashba III §237, that rootsuckers are subject to orlah only rabbinically. For this reason, Kehilat Ya'akov HaChadashim (Zera'im §41–43), states that it is possible to be lenient when there is a doubt. See also Amud HaYemini §28: Rabbi Shaul Yisraeli is lenient for rootsuckers. See also Rabbi Yoel Friedemann, “Status of rootsuckers for pomegranate and other trees,”  HaTorah VeHa'aretz V (5760), pp. 161–167; Rabbi Yoel Friedemann, “Orlah vis-à-vis rootsuckers and watershoots on pomegranate trees,” Emunat Itecha 86 (5770), pp. 24–34.

[23] Even Shushan Dictionary.

[24] Mishnah Orlah 1:5; Rambam, Hilchot Ma'aser Sheni 10:14–15; Shulchan Aruch, YD §294:16. See also Chazon Ish, Dinei Orlah §25; Rosh on the Mishnah Orlah 1:5 and Halachot Ketanot, Hilchot Orlah §5.

[25] Mishnah, ibid.; Rambam, ibid.; Shulchan Aruch, ibid.