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Shabbat Parashat Yitro| 5766
From the works of Hagaon Harav Shaul Yisraeli zt”l - The Laws of Orlah - Part II - From Eretz Hemdah I, 2:10
[We finished last time with different understandings of the mishna’s ruling that after entering the land, orlah applied before conquest. The Rash applied it to areas that were not conquered once some areas were. The Chazon Ish said that even areas that are not considered Eretz Yisrael (=EY) regarding other halachot are considered such only regarding orlah.]
The Chazon Ish’s claim that the pasuk of “when you shall come …” teaches that orlah follows the boundaries that Hashem promised Avraham, has a couple of difficulties: 1) The pasuk’simplication that the mitzva begins immediately can teach that we need not wait for conquest and division of all the Land, but how do we know that it applies even to unconquered areas? 2) If these words denote that it is before conquest, then why would the Torah, in other places, use those words in connection with “… and you will conquer and inhabit it”?
Apparently “when you shall come” can refer to either immediate application or require a further stage. If the words are not qualified, they imply immediacy, but the halacha applies only to areas that are generally included in EY. Thus, according to the Rambam, the laws of orlah did not apply to areas prior to their conquest. The Rash’s explanation is cogent according to those who generally apply the status of EY prior to conquest.
The Rambam’s and Rash’s machloket is evident from their language elsewhere. The Rambam (Commentary on Mishna), on the mishna that orlah applies to trees planted by non-Jews, says that it applies “even though he didn’t capture all of the Land.” This implies that the land in question was conquered, whereas others were not. He also says that if a non-Jew’s planting was done in his own field, then the trees are exempt from orlah. Thus, Jewish control of the specific plot of land, not the Land of Israel, in general, is the deciding factor. Although the Rambam changes his mind in Mishneh Torah and applies orlah to trees that a non-Jew plants in his own field, he does not mention that it is prior to the area’s conquest, as the Rash does. Rather, the mishna only wants to include orlah before the entire Land was conquered, in contrast to the East Bank which, although a part of EY, did not have orlah until EY proper was conquered.
R. Shimon derives that orlah applies even in chutz la’aretz (Kiddushin 35a) through a kal vachomer from chadash, which, according to some, applies in chutz la’aretz. However, he agrees that the mitzva began only when Bnei Yisrael entered EY, activating the pasuk, “when you shall come.” Halacha accepts Rabbanan’s position that there is a Torah source for orlah only in EY. However, they agree that there is a prohibition of orlah in chutz la’aretz, based on “halacha.” Some Amoraim explain “halacha” as the custom of the world, whereas others explain it as a halacha l’Moshe miSinai, a Torah law given orally and passed on by tradition without scriptural basis. There are different opinions if, according to this position, one who violated orlah in chutz la’aretz would be subject to flogging. The main, practical difference between orlah in and out of EY is that outside EY we are lenient in a case of doubt whether fruit is orlah or not, as the halacha l’Moshe miSinai was limited to a case of certain orlah.
Orlah in chutz la’aretz began after Bnei Yisrael entered EY, so that fruit on the new trees when our forefathers entered were permitted. The Mishne Lamelech says that once the mitzva started, it existed everywhere at least on the level of chutz la’aretz, including in EY at a time that the EY status is missing. The Tiferet Yisrael says that the chutz la’aretz status does not apply in EY and since it doesn’t apply there, it is inconceivable that there would be orlah only in chutz la’aretz. Therefore, he assumes that when there is no EY-level orlah, then there is no orlah whatsoever.
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