Orlah for passionfruit planted as a living fence and for fruit
Question
I planted a few passionfruit vines on my railings, with the intention both to use them as a privacy hedge and to eat their fruit. Do I need to wait 3 years for orlah to eat them under Ashkenazi halachic custom? They are thick and do effectively block the view from the street, which was our goal. They're in pots and have been planted at my apartment for almost 2 years now.
Answer
A. Planting trees as a living fence or for ornamental purposes
1. From the verse "and you plant any tree for food" (Vayikra 19:23), the Talmud Yerushalmi induces (Orlah 1:1): "[Trees] intended for food are obligated; [but those planted] for a fence, for the branches, or for the trees, are exempt." From here we see that if a person plants a tree for a purpose other than eating its fruits, such as a living fence, these trees are exempt from orlah laws, and the fruit may be eaten within the first three years. This heter (permit) applies with two provisos:
a. It needs to be apparent that the planting of the trees is for this other purpose. For instance, if planting to create a living fence, the trees need to be planted in close proximity to one another. In this way it is clear for all to see that the trees were planted to form a fence.[1]
b. The trees need to be planted for that defined purpose alone (even if one is aware that the plant bears fruit). However, if the purpose of planting the trees was both for the fence and for the fruit, the trees would still be subject to orlah laws. The test as to the true intent of planting the trees is as follows: if the one planting the trees would do so even if the trees did not bear fruit, the fruit will be permitted. If not, then the purpose includes the fruit as well, in which case they would be subject to orlah.[2]