Shabbat Parashat Beshalach| 5766
From the works of Hagaon Harav Shaul Israeli zt”l - The Laws of Orlah - Part I - From Eretz Hemdah I, 2:10
[In honor of the upcoming semi-holiday of Tu B’shvat, which is related to trees, we will discuss orlah, one of the major laws of trees. This editor is aware that the laws of orlah are not directly related to Tu B’shvat, as the calculations of the years of orlah are done from Tishrei. However, since during Tishrei other matters are usually on our mind, we will take this opportunity to discuss these laws. The basic idea of orlah is that for the first three years after a tree is planted, one cannot eat or otherwise benefit from its fruit.]
Regarding orlah, the Torah writes: “When you shall come to the Land …” (Vayikra 19:23), which indicates that the laws begin immediately upon entering the Land, even prior to its conquest and settlement, which are requirements for other land-linked mitzvot (mishna inOrlah 1:4). The Rambam apparently rules this way, although there are different opinions on the matter and on the question whether all Tanaim agree that the mitzva begins right away. The Tzelach posits that whenever the Torah writes, “when you shall come” there is a need for the entire nation to come, and, therefore, during the time of the Second Commonwealth, and certainly in our times, there is no obligation of orlah in Eretz Yisrael as orlah of Eretz Yisrael.
The Sifra derives from that the Torah’s reference to “the Land” that it applies to the special Land, namely that west of the Jordan. Thus, the laws of orlah did not apply in the East Bank until after Bnei Yisrael crossed the Jordan. The Yeshuot Malko explains that the rule that whatever the Jewish king conquers takes on a status of Eretz Yisrael applies only to that conquered after the conquest of Eretz Yisrael proper, as an extension of the Land. The extension cannot exist before the main element. According to opinions we cited elsewhere that the East Bank had a status of Eretz Yisrael proper, we must say that there is a specific scriptural decree that delayed the onset of orlah on the East Bank. Even after entering the Land, orlah applied only to those trees that were planted subsequently. Trees that were already planted were unaffected by orlah even if they were within their first three years (mishna in Orlah 1:2). This is evident from the pasuk’s description, “when you shall come to the Land and plant …”.
The mishna (ibid.) also rules that that which was planted even prior to conquest was obligated in orlah. The Rash seems to understand that this refers to the time that Bnei Yisrael had entered the Land and conquered some of it. Then the laws of orlah applied even in areas that were still under non-Jewish control, as long as they were included in the boundaries of Eretz Yisrael, as described in Parashat Masei. In contrast, we have shown elsewhere that, according to the Rambam, the status of Eretz Yisrael takes effect on any area only by conquest of the specific area. Thus, the laws of orlah of Eretz Yisrael cannot take effect in an area not yet conquered, as the area is not yet part of Eretz Yisrael. The Chazon Ish says that in regard to the laws of orlah even those areas that were not conquered are considered part of Eretz Yisrael if they are within the Land that Hashem promised to Avraham. The Zichron Yehonatan argues, saying that there is no status of Eretz Yisrael or its obligation in orlah for an area that was not conquered. He explains that the orlah that the Sifra refers to prior to conquest is the level of orlah that applies in chutz la’aretz.
It appears that the Zichron Yehonatan is basically correct, but not totally. The Rambam (Terumot 1:1) in regard to the need for conquest, talks about “Eretz Yisrael that is referred to in every place …” This implies that the requirement is universal, including in regard to orlah. In contrast, the Rambam does not mention there the requirement that the Land be divided among the tribes, because this latter requirement is indeed not uniform in all land-linked mitzvot.
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