Shiur #06: Special Leniency for Orchards

  • Rav Moshe Taragin


Dedicated to Liora & Ari Tuchman - In honor of the Bat Mitzvah of Danelle Sophia
and in Honor of the Birth of their son, Adin Emanuel


This week’s shiurim are dedicated in memory of Herschey Hawk z”l
by Dr Jerry Hawk




The first mishna of Masekhet Shvi'it describes a leniency pertaining orchards.  Even though from the Torah tosefet only begins thirty days prior to Rosh Hashana, the Rabanan extended this prohibition to Pesach preceding the shemitta year.  At that point all plowing must cease.  However, the Rabanan established an exception in that orchards may continue to be plowed until Shavuot prior to shemitta.  This shiur will explore the nature of the Rabanan's special allowance for orchards. 


The mishnayot in the first perek describe two different situations in which orchards may be plowed between Pesach and Shavuot.  If the orchard contains ten trees, or if it contains fewer but produces a prodigious amount of fruit, the plowing may continue until Shavuot.  Rationally, the ten-tree situation is more understandable. If a field of fifty by fifty amot (beit se'ah) contains ten trees, it can legitimately be defined as an orchard and not a field, in which case the plowing is permitted after Pesach because it is not the same act as plowing in a field used for planting crops.  In the case of a field the goal is to soften and prepare the earth for eventual planting.  In the case of an orchard of trees, however, where planting is not feasible, the purpose of plowing is obviously maintenance of the existing trees.  The plowing allows them to receive ample water and insures that their continued growth is not hampered by obstructing items. 


What is less clear is the application of this exemption to a field with fewer than ten trees which nonetheless produces a large volume of fruits.  The mishna requires a minimum of three trees which together are capable of producing a "kikar deveila" (a certain measurement) of fruits.  What is the nature of this exemption?  Does halakha allow planting in this scenario simply to avoid the inevitable loss of fruit? Indeed, we might argue, as this field of fewer than ten trees is not an orchard but a field, which happens to contain some trees, plowing should theoretically be forbidden from Pesach, akin to a standard field.  However, given the fact that this field still produces a significant amount of fruit, plowing was allowed to avoid an irrecoverable loss.  Alternatively, we might claim that the mishna is willing to view a field containing fewer than ten trees as a halakhic orchard with regard to tosefet shvi'it since the plowing is not legally defined as a preparatory act for future planting. 


To ask the question more broadly, how does halakha define an orchard as an area containing ten trees, or even as one containing less trees, as long as large volumes of fruits are produced?  This question of halakhic classification would obviously have ramifications far beyond the discussion of shemitta.  For example, the gemara in Bava Batra (36b) discusses the manner of executing a chazaka in an orchard.  Generally, if someone wants to prove ownership over a field whose deed he has lost, he may live upon the land and "use" it for three years.  If this experience is uncontested, he achieves license over the field.  The gemara discusses the manner of acquiring this chazaka in a field of trees.  The gemara defines someone who harvests the fruit of ten trees which lie in a beit se'ah as one who has performed a halakhically valid chazaka.  The fact that the gemara only mentions chazaka in the context of ten trees per beit se'ah suggests that this number of trees is necessary to define the area as an orchard and allow chazaka through the harvesting of fruits.  A smaller number of trees per beit se'ah would not designate the area as an orchard and would mandate that chazaka be performed by actually planting crops, not merely collecting fruits. 


Alternatively, the mishna in Bava Batra (81a) asserts that one who purchases a tree does not necessarily acquire the land beneath.  Effectively, he can then be forced to remove his tree from the land owned by someone else.  Though there is some debate surrounding the purchase of two trees, everyone admits that the land is included in a transfer of three trees.  This mishna suggests that three trees do constitute some halakhic unit and do confer some land rights.  A parallel gemara in Bava Batra (72a) speaks of one who has consecrated three trees to hekdesh.  Even though he doesn't address the land surrounding the trees, he has automatically consecrated that land as well. 


Conceivably, we might reconcile the various gemarot in Bava Batra as follows: Only ten trees constitute an actual legal orchard; hence ten trees are required as a minimum to facilitate executing a chazaka through the fruits of the trees.  Though three trees do not in general constitute a formal orchard, they do form a "package" which includes land.  A single tree or according to many positions, even two trees are isolated entities and not legally attached to any land (for purchase and consecration purposes).  In contrast, three trees constitute a group of trees which necessarily demands some land to service it.  The gemarot which discussed the automatic inclusion of land in purchases and consecration did not allocate a full beit se'ah.  Only the land surrounding the trees which is absolutely necessary for the work performed upon the trees is included.  However, the gemara which discussed chazaka of orchards by collecting fruits spoke of the entire beit se'ah, which is affected by the chazaka performed upon the group of ten trees. 


Given these definitions, we can certainly restate our original question regarding the special license to continue plowing even a field containing just three or more trees until Shavuot.  Does halakha recognize a three-tree area as a mini-orchard, with respect to shvi'it thereby justifying plowing after Pesach because this area defies classification as a regular field?  Or does halakha deny the status of orchard to a three-tree area, instead allowing continued plowing of such a tract of land merely to prevent the monetary loss which might occur if plowing is terminated at Pesach?


Two interesting statements of the Yerushalmi might illustrate the answer to this question.  At first the Yerushalmi ponders the limitation of this special "allowance" only until Shavuot.  Why can't plowing in these three-tree fields continue until shemitta, or at least until Rosh Chodesh Ellul, at which point Biblical tosefet commences?  The Yerushalmi responds, "Until Shavuot plowing enhances the fruit (still growing on the trees); afterwards the trees begin to shed their fruit (and plowing is no longer enhancing)."  Indeed, in our mishna itself Beit Shammai claim that plowing may continue as long as it enhances the fruit.  They don't speak at all of Shavuot as a legal cut-off but gauge the actual benefit which plowing might provide for the fruit. 


            By justifying the limitation of the leniency upon the lack of practical impact upon the fruit, does Beit Shammai intend to ascribe the leniency to that very factor? The plowing was only permitted because it would preserve or enhance the fruit, but once this effect is no longer feasible (Shavuot) plowing must cease.  If the plowing in an orchard were permitted because such land is not defined as a "planting field" and the plowing in such a field was never banned, why can't this plowing continue even after the fruits stop growing?  Keep in mind that in our mishna Beit Hillel speak of Shavuot and never explain the Shavuot limitation based upon the practical impact upon fruits.  Conceivably, Beit Shammai and Beit Hillel's machloket might have been based upon our issue.  If the allowance is based upon the monetary loss, we might allow plowing only as long as it provides some practical monetary benefit.  If, however, we view a three-tree area as a mini-orchard, as well we might allow its plowing because we do not view it as an act of plowing at all.  The Rabanan chose an objective point in the year when even this type of work must cease (Shavuot).  Again, from the Yerushalmi's perspective, even Beit Hillel's opinion is based upon the potential benefit which the fruit will receive. 


Another interesting issue which arises in the Yerushalmi surrounds the mishna's allowance of plowing even if the trees are sterile and produce no fruit.  As long as they are large enough that if they were fruit producing trees they would yield the prodigious amount of kikar deveila, plowing can continue.  If we justify the allowance upon the loss of fruit, how can we extend it to a field containing sterile trees?  Doesn't this application of the allowance indicate that a field of trees-any trees-in which crops can't be planted is legally removed from the category of a field, and plowing is not at all forbidden since it isn't geared to the ultimate goal of planting crops?


The Yerushalmi itself poses this question and answers, "Plowing until Shavuot strengthens the actual tree; afterwards, plowing would actually weaken the tree."  From this statement it is quite apparent that only the practical benefit to the trees or fruits allows plowing, which would otherwise be forbidden.  If the trees produce actual fruit, plowing until Shavuot will enhance the fruit.  Even if the trees are barren and produce no fruit. inasmuch as the plowing will enhance the actual trees, it is permissible. 


What would happen in an instance in which the plowing would provide no palpable benefit?  The Yerushalmi inquires about trees at the foot of a hill whose associated lands lie above the tree.  In this instance as the tree receives no nourishment from the land above, we would not be quick to allow plowing if the basis of the leniency were the monetary benefit.  Conversely, if the allowance were formal because we define this area as an orchard, we might extend this allowance even when the plowing does not provide such benefit.  Though the Yerushalmi actively questions this case, ultimately Rebbi Shimon rules that plowing is allowed, seemingly revealing his view that the allowance is purely formal in nature. 


            An inverse question would surround the possibility of extending the area of plowing if some benefit would accrue.  An earlier segment of the Yerushalmi questioned the case in which a vine were stretching across an area larger than a beit se'ah.  Would the allowance apply to this extended area, or would we limit it to the standard beit se'ah size?  Again, this question would be based upon the nature of the allowance.  If the practical benefit were at the root of the allowance, we might apply it as long as some practical benefit exists.  If, however, a beit se'ah area with three trees were legally defined as a mini-orchard, we might be limited to the beit se'ah area which classically entails an orchard.  The fact that in this specific exception the vines are nourished by a larger area does not allow us to broaden the allowance beyond the beit se'ah area.


            An additional question in the Yerushalmi might also highlight the exact nature of the allowance for orchards.  Rav Lazar questions whether the three trees must be arranged in any particular order.  Classically, in a standard ten-tree orchard, the trees must be spaced proportionately, with certain distances separating the trees.  If the trees are too concentrated or too scattered within the beit se'ah, we cannot view this area as an orchard.  In a general sense, there must be sixteen amot between each tree (see Bava Batra 27).  Would the same spacing schemes be applied to a three-tree mini-orchard?  Are we interested in realizing this area as a mini-orchard, in which case the spacing would indeed be crucial, or do we simply allow the plowing because we are interested in improving the fruits (or wood in the case of a barren tree), and thus we would not care about the exact spacing?  The Yerushalmi leaves this question unanswered, suggesting some ambiguity about the exact nature of the Rabanan's allowance. 


It should be stressed that the nature of the allowance until Shavuot might be dependent upon how exactly we grasp the original rabbinic prohibition to plow after Pesach.  Did Chakhamim formally prohibit plowing, or did they forbid it in a manner which appears to prepare the land for shvi'it?  See especially Tosafot Rosh Hashana 9b, who take the second view.  The nature of the general prohibition of plowing would in some ways impact upon our understanding of an allowance in the case of a three-tree mini-orchard. 



It should also be noted that this shiur only questioned the nature of the allowance in a situation of less than ten trees: Was the allowance based upon the status of the area or the desire to sustain the fruit production?  If there are ten trees, plowing may be performed even if the fruit production is minimal.  It seems that at least in this case, the formal identity of the land as an orchard permits extended plowing.