This week, we will probe the question of intention: how the purpose for planting a tree affects the laws of orlah. For example, if a passion-fruit tree is planted as a fence, does the prohibition of orlah affect its fruits? Are fruits of a decorative date palm subject to orlah? Is it permissible to eat pine nuts from a wild pine tree? Are esrogim subject to orlah if they are not intended for consumption? Is it permissible to smell an orlah rosebush? What about an orlah citrus grove?
How does the halacha change when the tree’s function changes? Can we enjoy the appearance of orlah kumquat tree planted for its visual appeal? Does a child’s intention in planting affect the halacha? If the gardener had one purpose in mind, and the tree owner had another, which overrides? Our article this week will explore these and other related questions.
Orlah and Shavous
In recent weeks, we have explored the laws of orlah. As noted previously, the Zohar mentions that on Shavous one is judged on whether they have properly observed these laws. Therefore, the period of the Omer is a particularly appropriate time to study these laws. This week, we will conclude our series on the laws of orlah by focusing on the various scenarios in which our intentions can influence the prohibition of orlah.
Living Fence
Can the fruits of a climbing shrub planted as a living fence be eaten during its orlah years? The Shulchan Aruch (YD 294:23) rules that the laws of orlah do not apply to a tree planted for use as a fence, for firewood, or for timber.
However, the Rosh (Orlah 2) maintains that this exemption applies only if it is clearly evident that the tree was planted for a purpose other than consuming its fruit. Examples of clear indicators include:
- Densely Planted Trees: When trees are planted very close together, it indicates they are intended for firewood.
- Pruned Trees: A tree that has been pruned to develop a thick trunk suggests it is meant for construction material.
- Gap-Filling Trees: Planting a tree in a gap within a fence shows it is intended to serve as part of the fence.
The Rambam (Hilchos Ma’aser Sheni 10:2), in contrast, holds the planter’s intention is sufficient, and no visible indication is necessary.
Practical Ruling
The Shulchan Aruch follows the Rosh’s opinion, which is how the Chazon Ish (Orlah 1:11; Derech Emunah on Ma’aser Sheni 10:11) rules. However, outside of Israel, one can be lenient and follow the Rambam’s opinion (Toras Ha’aretz 9:27; Mishpetei Eretz, Orlah 7:1, note 6).
Which Trees are Subject to Planter’s Intent
Rav Chaim Kanievsky (Derech Emunah on Ma’aser Sheni 10:5, based on the Vilna Gaon’s commentary on the Yerushalmi, Orlah 1:1) identifies three categories of trees whose orlah status is subject to intention in planting:
- Trees with edible fruit, but which are rarely planted for consumption: Trees that are not commonly planted for their fruit are not subject to the laws of orlah, even if someone plants them for consumption. For example, rose and myrtle bushes are both halachically considered trees, but since their fruit is not commonly consumed nowadays, these plants are generally exempt from orlah. Roses are primarily cultivated for their ornamental value or fragrance, with only a small number of people in the industry planting them for purposes such as producing rose water or harvesting edible petals. Similarly, myrtle shrubs are typically planted for their pleasant scent or appearance. It is now rare for people to plant myrtle specifically for the purpose of eating the small, edible berries that grow among the leaves.
Roses have an additional reason for exemption: the presence of rosehips, which cause the flower to wilt faster, is minimized or eliminated in most commercial rose bushes today. This deliberate cultivation practice, resulting in smaller or non-existent rosehips, further indicates that these bushes are planted for ornamental or fragrance purposes rather than for consumption.
Likewise, carob and pine trees planted in private yards or forests are generally not subject to orlah because most people do not consume their fruits. Therefore, wild carobs or pine nuts are exempt from orlah.
- Trees commonly planted for both consumption and other purposes: If people plant the same tree for its fruits and for other purposes, the application of orlah depends on the planter’s intention.
- Trees most frequently planted for fruits: if a tree most people plant for fruit is planted for another purpose, it must be a clearly indicated as such.
Intention
The Minchas Chinuch (Mitzvah 246) explores whether merely intending to plant a tree for non-fruit purposes at the time of planting is sufficient, or if one must explicitly state this intention. The Minchas Chinuch suggests that this question is part of a broader debate about the impact of thought in halacha, such as in the laws of pigul (see also Mishnah Berurah 372:121 regarding eruvin). However, the prevailing halachic opinion (Tiferet Yisrael, Orlah 1:1; Derech Emunah on Ma’aser Sheni 10:6) holds that it is sufficient for the planter to mentally intend the tree for a non-fruit purpose, to exempt it from the laws of orlah.
If a child under bar mitzvah plants a tree, his intention is generally not considered significant. However, if the intention is evident from his actions—for example, if the tree is planted in a way that clearly indicates it is meant to serve as a living fence—then if the orlah obligation is rabbinic, the child’s intention can determine that the tree is not subject to orlah. In contrast, when the orlah obligation is Biblical, the child’s intention does not exempt the tree from orlah (Derech Emunah on Ma’aser Sheni 10:6).
Gardener’s Intention vs. Homeowner’s Intention
If a gardener plants a living fence in a homeowner’s yard and mentions that he selected a species with excellent fruits for the homeowner to enjoy, but the homeowner responds that he is only interested in the fence and not the fruits, the determining intention is that of the homeowner—the tree’s owner—not the gardener (Derech Emunah on Ma’aser Sheni 10:6).
Stolen Land
The orlah status of a tree planted on stolen land is subject to the thief’s intention in planting. Even if the rightful owner later manages to reclaim the land, the tree’s status is determined by the thief’s original intention when planting. If the rightful owner wants to repurpose the tree after reclaiming the land, the tree’s status will be considered repurposed, and the relevant laws will apply as detailed below (Derech Emunah on Ma’aser Sheni 10:6).
Decorative Trees
A tree that was planted for ornamental purposes, shade, or other similar uses e.g., species such as palm, carob, or olive trees planted on city streets or in public gardens, where it is clear they were not planted for their fruits—the orlah prohibition does not apply. However, if the municipality also intends to enable the public to eat the fruits, these trees are subject to orlah (Mishpetei Eretz, Orlah 7:2 and notes 7-8).
For trees primarily planted for the fruit’s appearance, such as kumquats, see below.
Repurposing a Tree
A tree whose purpose is changed after planting becomes subject to the laws of orlah. For instance, if someone initially plants a tree for a living fence, lumber, or ornamental purpose, and later decides to benefit from the tree’s fruits, the tree becomes subject to orlah from that moment onward. However, those fruits that have already ripened on the tree are not prohibited. Furthermore, the tree is not considered newly planted; the years of orlah are counted from the original planting date, not from the date the intention was changed.
If the change of purpose occurs in the tree’s fourth year, since the tree was not previously subject to orlah, it is not subject to the laws of neta revai (fourth-year produce). This is because neta revai only applies to trees that were previously subject to orlah.
However, the Chazon Ish (Orlah 1:9; Shenei Orlah 16) writes that this applies only when the tree was planted with the intention to always serve as a fence, for wood, or other similar uses, with no intention to ever use its fruits. If, however, the original plan was for the tree to serve as a decoration for 20 years, and in its final year — the fruits would be consumed, the tree is immediately subject to orlah.
Planting for Two Purposes
A tree planted for a specific purpose, but also, as a side benefit, for its fruits, is subject to the laws of orlah. However, if the planter did not intend to eat the fruits at all, but happens to want to eat them when they grow, may do so (Chazon Ish, Orlah 1:11; Derech Emunah on Ma’aser Sheni 10:11).
How much intention for each purpose is difficult to determine. Therefore, outside of Israel, one may be more lenient in this regard, and a rabbi should be consulted to discuss the various intentions one had, but in Israel it is best to be stringent and count orlah years.
Planting Fruit Trees for Non-Edible Fruit Use
Until now, we have discussed cases where a person plants a tree for its wood, branches, or leaves to use as a fence, for shade, or for decorative purposes. However, what happens if one wants the fruit for non-eating purposes, even though the fruit is edible? Here are several examples to illustrate this situation:
- Mitzvah Purposes: Esrog trees planted solely for the mitzvah of esrog, or date palms planted specifically for their superior lulavs, and not for their fruits.
- Fragrant Fruit Trees: Trees intended only for their fragrance or for use in the cosmetics industry. For instance, trees with fruits that are used to produce perfumes or other scented products.
- Medicinal Purposes: Fruit trees planted to produce medicines or ointments from their fruit. These fruits are cultivated for their medicinal properties rather than for consumption.
- Decorative Purposes: Trees planted for the visual appeal of their fruits. A common example is the kumquat tree, where people enjoy the sight of the tree laden with tiny fruits but do not plan to eat the sour kumquats.
The Shulchan Aruch (YD 294:24) rules that even if a tree is planted for the purpose of fulfilling a mitzvah, such as planting an etrog tree without any intention to eat the etrog, it is still considered a fruit tree and is subject to the laws of orlah. As for a date palm, the Shulchan Aruch (YD 294:24) states that if someone plants a date palm for the purpose of using its lulav for the mitzvah, the tree is subject to the laws of orlah.
The straightforward understanding implies that there is a prohibition against using the lulav itself. However, many later authorities (Teshuva Me’ahava Vol. 2, 405; Chasam Sofer, Sukkah 34; Birkei Yosef, YD 294:39, among others) have questioned this interpretation, noting that the prohibition of orlah applies to the fruit, not the tree itself, and the lulav is considered part of the tree, not the fruit.
Therefore, they explain that the intention of the Shulchan Aruch is that the dates on the lulav palm are prohibited due to orlah. The Aruch HaShulchan (YD 294:41) clarifies that the significance of the mitzvah gives the tree the status of a fruit tree, and since the dates are edible, the tree is subject to orlah, even if the planter did not intend to eat the dates.
However, the Ma’adanei Melech (Hilchos Orlah, 2:41) and Rabbi Akiva Eiger (glosses on Shulchan Aruch, YD 294:24), along with others, disagree with the Shulchan Aruch. They argue that only if the fruit itself is intended for a mitzvah does the tree acquire the status of a fruit tree, since the fruit has a significant use, even if it is not for eating. However, if the intention is to use the tree itself for a mitzvah, such as using the lulav for Sukkos, the tree does not gain the status of a fruit tree, and is not subject to orlah.
Trees Planted for Fruity Fragrance
Many authorities (Radvaz Vol. 1, 44; Rabbi Akiva Eiger’s glosses on Shulchan Aruch, YD 294; Chochmas Adam, Sha’arei Tzedek, Mishpetei Ha’aretz 6:17; and others) have written that a tree planted primarily for the fragrance of its fruits, even if the fruits are edible and occasionally eaten, is not subject to the laws of orlah. For example, a rose bush – although its parts were consumed in the past, it is now primarily intended for scent and visual appeal, as discussed above. Thus, the laws of orlah do not apply to rosebushes.
However, the Chazon Ish writes that it is difficult to exempt a tree whose fruits are intended for fragrance but are ultimately edible, arguing that using them for their fragrance does not negate their status as food. Rabbi Shlomo Zalman Auerbach (Minchat Shlomo Vol. 1, 71:4) also states that if the fruit is edible and the tree is planted to derive other benefit from the fruit, such as oil extraction, fragrance, or juicing, the tree is still subject to orlah. The Chida (Birkei Yosef, Yoreh De’ah 294:13) documents a broad debate among later authorities on this issue.
The Aruch HaShulchan (YD 294:38) added a further condition for exemption: only if it is evident that the tree was planted for fragrance or medicinal purposes do the laws of orlah not apply. Additionally, if people generally do not eat the fruit, this serves as an indicator.
Apparently, consuming the fruit of decorative miniature kumquat trees that grow in a planter depends upon this discussion. The tree is primarily intended as a decoration, and eating the fruit destroys the planter’s appearance. According to the Radvaz, tasting from the fruit is permissible, while the Chazon Ish and other Achronim consider the tree as edible. Therefore, in Israel on should present the question to a competent rabbi before partaking of the fruit.
Smelling Orlah Fruit
Is enjoying the scent of orlah fruit permitted?
The Shulchan Aruch (YD 108:7) rules that it is forbidden to smell orlah besomim. However, the Pri Chadash (YD 108:25) and the Shach (YD 108:27) indicate that this prohibition applies only if the fruits’ primary use is for its fragrance. If the fruit is mainly enjoyed through consumption, not its fragrance, enjoying its smell is not considered the usual way of enjoying it, and thus is not prohibited.
The Radvaz (Vol. 1, 44) and the Chochmas Adam (Sha’arei Tzedek, Mishpetei Ha’aretz 6:17) discuss smelling orlah lemon and esrog trees. They rule that when there are only flowers or if the fruit is still undeveloped [at the state halachically called “smadar”], enjoying its fragrance is permitted. This is because there is no prohibition on deriving benefit from orlah fruits before they reach the stage of “boser” (slightly grown and potentially edible, albeit very sour, or when some juice can be squeezed from the fruit for flavouring). However, once the orlah fruit reaches the boser stage or becomes fully ripe, smelling it is forbidden.
Half Orlah Tree
One who plants a tree with intention for half of it to serve as a living fence, and the other half for its fruit, creates a different orlah status for each part of the tree. The Shulchan Aruch (YD 294:23) rules that the part intended for consumption is subject to orlah, while the other half is not.
