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The Practical Laws of Orlah

The Practical Laws of Orlah

Orla is a mitzvah from the torah, even in our days. In this articles we will discuss a few of it's practical halachot

Rabbi Moshe Bloom

The basic Prohibition of Orlah

"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." (Vayikra 19:23).

While the Torah clearly prohibits eating fruit of trees in their first three years, Chazal extend this prohibition to benefiting from such fruit.

For this reason, it is forbidden to feed orlah fruit to animals (wild animals included), sell or give it to a non-Jew, or use it for compost. It is also forbidden to smell orlah fruit, light candles from orlah oil, use orlah-produced cosmetics, paint with orlah dyes, or even use orlah fruit as sukkah decorations. However, it is permissible to enjoy looking at orlah fruit not used for decoration (fruit hanging on a tree, for instance).

It is prohibited to benefit from seeds of orla fruit. If planted, though, it is permissible to benefit from the fruit of the resulting tree (after orla years are up, of course). Post-facto we are lenient, employing the halachic principle of ze va ze gorem (both factors contribute); that is, the soil also helps the tree grow.

Some prohibit performing scientific studies on orla fruit. Others permit this, since direct benefit is not derived from the fruit.

 

The orlah prohibition relates only to fruit trees, not to trees that do not bear fruit worthy for human consumption. The prohibition relates only to the fruit itself; branches, leaves, and flowers of orlah trees are all permitted.

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. For this reason, in the case of nopales (the sabra cactus stems), cultivated as edible leaves, the leaves are also considered fruit and are prohibited for consumption. In this case the (sabra) fruit is also edible, so both fruit and leaves are prohibited during the orlah period.

Grape leaves on orlah vines, on the other hand, are permissible for consumption since they are of secondary importance to the grapes, so they are not considered fruit.

Peels and seeds of orlah fruit are also prohibited, so it is forbidden to plant orlah seeds and candied orlah orange peels are off-limits.

Bushes grown for their leaves used as herbs and for tea, where the leaves are thrown away after giving off flavor, are not subject to orlah laws. Examples include: laurel, lemon verbena, and rose petals. This is despite the fact that these plants are considered trees (perennials that renew from the root). Note that Rav Mordechai Eliyahu is stringent with regard to herbs.

In contrast, plants whose leaves are used as an herb but are eaten (with the dish or salad) are subject to orlah. One such example is the caper bush; here 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. Some are also stringent with regard to the shoots.

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 actually eaten, orlah does not apply.

 

Some of the Land-related mitzvot are only effective today as a rabbinic prohibition for various reasons (the second sanctification of the Land of Israel was nullified; a majority of world Jewry does not yet live in Israel, we don't have a Temple or altar, etc.). Orlah, however, is different: it is a Biblical obligation even today.

Orlah is a Biblical prohibition even in the boundaries of olei Mitzrayim. In practice, Israel's Chief Rabbinate rules that orlah applies to the entire State of Israel.

Fruit from a non-Jew's orchard is subject to orlah, in the same way the prohibition applies to Jewishly-own orchards.

What do we do with orla fruit?

The Mishna (Ma'aser Sheni 5:1) instructs us to mark vineyards as orla with burnt clay so others will avoid eating or benefitting from the grapes; Rabbi Shimon ben Gamliel limits this to shemita years. The Rambam explains that marking is necessary during shemita years since the fruit is ownerless, so anyone might rightfully partake of it. During other years, however, this would constitute stealing. If a thief does steal orla fruit, this is his problem (based on the halachic principle of hal'itehu larasha vayamot; lit. "feed the wicked man and he will die").

Nevertheless, it seems that one should pick the orla fruit from one's tree so that no one ends up using it accidentally (family, friends, neighbors, or other Jews). The fruit can be either buried, burned, or thrown away in the garbage.

From an agronomic perspective, it is recommended to clip the flowers during orla years to prevent fruit from developing. This avoids wasting the tree's energy and encourages a better harvest during permissible years. Of course, this is only if the tree is ours; we have no right to touch a neighbor's tree to "help him out" by throwing away all of his orla fruit!

Orla Fruit is Forbidden Outside of Israel Too!

What an oxymoron: orla is a mitzvah tied to the Land of Israel, so how could it apply abroad?!

The Mishna (Kidushin 1:9) states that orla is an exception: "All mitzvot tied to the Land of Israel apply only in the Land … except for orla and kilei hakerem [which also apply abroad]."

The Gemara (Kidushin 39a) goes so far as to state:

"Whoever says that orla does not apply outside the Land of Israel will have neither child nor grandchild "who casts line for the lot in the congregation of Hashem" (Micha 2:5) … orla outside the Land of Israel is a precept transmitted to Moshe at Sinai."

Orla in the Land of Israel is a biblical prohibition, while abroad it is a halacha leMoshe miSinai (closer to de'oraita severity than derabanan). Both Rambam and Shulchan Aruch rule accordingly.

However, there is a major difference inside and outside the Land of Israel when it comes to safek orla: if orla status is in doubt outside of Israel, it is permitted (Mishna Orla 3:9, also Shulchan Aruch §294:9).

Abroad, as long as I don't actually see the fruit being harvested from an orla tree, I may eat it. While I may not eat fruit from my tree during its orla years, outside Israel if someone gives me fruit from their tree—even if it might be orla—it is still permissible to eat. And if I buy fruit from a store, I can eat it even if I know that the vast majority of fruit is orla.

There aren't many Jewish farmers living outside Israel, and many Jews live in apartment buildings and don't have gardens with trees. This is why, I believe, most observant Jews are not aware of the prohibition, although it definitely applies abroad.

Imported and Exported Fruit

Fruit grown abroad and imported to Israel is halachically considered fruit from outside of Israel. For this reason, all industrial goods such as jams and juices are permissible to use in Israel, although they include fruit that might possibly be orla, when the raw materials are imported. For this reason, even those who hold that the passionfruit vine is a tree (and therefore orla laws would apply) can drink passionfruit juice in Israel: since the fruit concentrate is imported and it is considered a safek orla, it is permissible.

Orla fruit grown in Israel and exported retains its forbidden status.

When I served as a community rabbi in Warsaw, we saw avocado imported from Israel in the market. I told my wife that I was concerned it was orla, which wasn't marketable in Israel so it was exported abroad. Several months ago I did extensive research on the matter, contacting officials in Israel's chief rabbinate, and it turns out that I was needlessly stringent.

Fruit exported abroad generally goes through big packaging houses, which are under the Chief Rabbinate's close supervision.

Moreover, farmers who want to receive kashrut certification for the fruit they sell in Israel may not export their orla fruit, or their kashrut certification will be rendered void; the rabbinate developed sophisticated and efficient methods to enforce this. Those who export produce abroad are big farmers who also sell to the local kosher market in Israel, so the chance that they would endanger their ability to market their produce locally is very small. Note that with regard to terumot and ma'aserot for exported goods, the situated is different (we'll cover that another time).

In conclusion: not only is it possible, but laudable to buy fruit from Israel and you don't have to worry about orla.

Calculating orlah years for new and mature trees

Q: We moved into our new home and planted young saplings on Kislev 5776. Can we eat from the fruit now (kislev 5779)? If not now, when?
My uncle planted more mature trees. Do the same laws apply in this instance?

A: The prohibition of orlah applies to fruit growing in a tree’s first three years. In the fourth year, the fruit is considered neta revay. If you planted the tree on Kislev 5776, the fruit that bloomed after Tu Bishevat 5779 are neta revay; that is, the fruits that are ripe at the spring of 5779 have neta revay status.

In the case on buying a mature tree from a nursery, there are cases when the years in the nursery can be included in the orlah count, but with several provisos:
a: The tree’s planter is perforated with a hole of at least 2.5 cm diameter at the bottom of the planter/bag.
b: During the entire time that the tree was in the nursery, the planter/bag was placed directly on the soil, and not on a surface that separates the soil from the planter (like a plastic sheet).
c: The clod of soil surrounding the tree did not fall off when transferred.

Because Orlah is basically deorayta, only if you are absolutely certain that all the above conditions were fully met, can you include years in the nursery in the orlah count.

If not (and that is usually the case), orlah years should be calculated from the time the tree is replanted in the garden.

Growing trees indoors -- are trees grown indoors, in unperforated pots, subject to orlah laws?

Note: definitions and laws pertaining to indoor plants and unperforated pots often differ vis-à-vis orlah, terumot and ma'aserot, shemita, and kila'im.

Orlah and unperforated pots

The Yerushalmi (orla 1,2) states: "A tree planted in an unperforated pot is subject to orlah." Rabbi Yose explains that this is because the roots penetrate through the pot and receive nourishment this way. The Rambam (Hilchot ma'aser sheni 10:8) explains: "A tree planted in an unperforated pot is subject to orlah; while the pot is not 'land' for seeds, it is considered 'land' for trees." The Shulchan Aruch rules likewise (YD 294:26).

Poskim deliberate regarding metal pots, which serve as a complete barrier between the pot and the ground; perhaps according the Yerushalmi's reasoning these would be exempt from orlah (this is not brought down as halacha, though). While some poskim hold that unperforated pots are subject to orlah mideoraita, others maintain that they are completely exempt. The accepted ruling is that such trees are subject to orlah miderabanan.

Orlah indoors

As we wrote, the Yerushalmi states (ibid.): "A tree planted in the house is subject to orlah." The Rambam (ibid.) rules accordingly. Penei Moshe explains that in reference to orlah, the Torah does not write "sadeh," field; rather "aretz," land ("When you come to the land and you plant trees"); so planting indoors also qualifies as "in the land."

Orlah indoors in unperforated pots

Trees growing indoors in unperforated pots are subject to orlah miderabanan (they are considered disconnected from the ground; here the barrier is twofold: the tree is in a pot, and there are tiles on the floor).

After orlah years are up, it is possible to partake of the fruit. However, if the unperforated pot is brought outside to the garden or transplanted into the ground, orlah years need to be recounted, since the tree is now subject to orlah mideoraita!

Orlah and Hydroponics

Q: I want to grow a blueberry bush in my house hydroponically, using water and fertilizer. The bush produces fruit by its second year. Does orlah apply to trees grown hydroponically?

A: This is a new question that is hardly mentioned in halachic responsa, since hydroponic tree cultivation is a novelty.

Since the verse discussing orlah states "When you come to the land" (Devarim 26:1), it would seems that water media are not considered "land." On the other hand, Rabbi Yaakov Kanievsky (Kehilot Yaakov Gitin 6) holds that the verse refers to the time of entering the Land, but doesn't exclude plants not grown in soil. For this reason, orlah would apply to any means of planting, even if not in soil.

The poskim discuss hydroponic cultivation during shemita in terms of the prohibition of planting and the beracha on vegetables. The Rambam (Hilchot Shabbat 8:2) writes soaking wheat in water on Shabbat violates the prohibition of zore'a (sowing), so it seems that water is equivalent to soil. The poskim also discuss hydroponics vis-à-vis terumot and ma'aserot.

The book Nechpa Bakesef (1, YD, 5) writes that if one puts a bit of soil in the water, it is forbidden to use the mixture as a medium during shemita. All hydroponic media have fertilizers added to the water; certain mixtures could be considered "soil," and thus orlah would apply.

Rabbi Shaul Yisraeli (Hatorah VeHa'aretz 1, 5759) deliberates whether orlah applies to unperforated pots; while inclined to exempt hydroponically grown trees, he writes that he nevertheless did not rule this way in practice.

The only posek I found who writes explicitly about orlah and hydroponics is Chief Rabbi Yitzchak Yosef (Yalkut Yosef, mitzvot hateluyut ba'aretz, vol. 2-3 p. 161), who states that orlah applies to such trees.

In practice: the rabbis of the Torah VeHa'aretz Institute rule that orlah applies to hydroponically grown trees. 

Orlah and Aeroponics

Q: I want to grow a blueberry bush at home. Last week you wrote that orlah applies to hydroponically grown trees. What about aeroponics?

A: The poskim discuss the question of terumot and ma'aserot when growing sprouts employing misting/spraying. Rabbi Yaakov Ariel and his son, Rabbi Azriel Ariel exempt such sprouts from terumot and ma'aserot (Torah VeHa'aretz 4, 5762); while Rabbi Mordechai Eliyahu does not (Torah VeHa'aretz 3, 5761). The lenient opinions rely on the phrase "tevu'at zarecha," "the produce of what you sow" (Devarim 14:22). Sowing is in soil; even those who liken water media to soil may not necessarily view air as such. Moreover, the Yerushalmi exempts produce grown indoors from terumot and ma'aserot, since a house is not a "field." Even if we obligate produce grown indoors in light of produce grown in the field, no such gezeira of Chazal applies to aeroponics.

Orlah laws work differently: the term "aretz" "land" is used, and not "sadeh," "field" (as we explained previously); thus orlah applies even to trees grown indoors and in unperforated pots.

Rabbi Shlomo Amar and Rabbi Yehuda Amichai discuss orlah and aeroponics for pitaya trees; both agree that orlah applies (Techumin 26, 5766). Aeroponics has since become a standard cultivation technique throughout the world.

In practice: As I wrote previously, aeroponic cultivation is new and I haven't found any poskim who relate to it outright. I was asked this question by a Gush Etzion resident and the rabbis of Torah VeHa'aretz Institute discussed it in Tevet 5779.

Rabbi Yehuda Amichay, head of Torah VeHa'aretz Institute, rules that aeroponics are to be treated like hydroponics, and therefore such trees are subject to orlah miderabanan—at least for private cultivation. Bוut, Further investigation should be done on this new sunject. 

How wonderful when new questions arise in light of global technology and living in Israel!

Is Passionfruit Subject to Orlah?

Trees are subject to olrah laws, not vegetables. What, then, is the definition of a “tree”?

According to halacha, perennial plants that grow from a trunk are considered trees. This is why bananas are considered vegetables: while they are perennial, they grow from the root. There are, however, several species that are considered borderline in terms of fruit/vegetable status (such as eggplant, papaya, babaco, pineapple, pitaya, and passionfruit), so some poskim laid down additional criteria for plants to be considered vegetables:

(1) Plants with a hollow trunk; (2) Plants that die before they reach three years (the Chazon Ish orla 12,3 explains that it doesn’t make sense that the Torah would prohibit a tree altogether so we could never benefit from its fruit); (3) Plants whose quantity and quality of fruit diminish from year to year.

In practice, if conditions (2) and (3) are met, the plant is considered a vegetable, like is the case with eggplant. Some authorities add another condition (4): that if the plant bears fruit within the year, it is also considered a vegetable; most Sephardi poskim rule accordingly.

The passionfruit plant bears fruit within its first year and its fruit diminishes in quantity and quality from year to year—but this is due to poor growing conditions, and is not an inherent characteristic of the plant. The trunk also has a very small hole in the center, the size of a needle.

In practice, the poskim dispute whether passionfruit is subject to the laws of orlah. Most Ashkenazi poskim are stringent, while the Sephardi poskim are traditionally lenient.

Note that if one plants passionfruit as a living fence, it is possible to be lenient and eat its fruit without counting orlah years, even if the original intent was also to eat the fruit (see Hilchot Ha’aretz, p. 134).

 

For a comprehensive alphabetical guide about orlah-related topics, see here.