MISHNAH: If somebody plants for fences or building logs he is exempt from ‘orlah. Rebbi Yose says, even if he says the inner part is for food, the outer part for a fence [A tree planted at the border between an orchard and the public domain. If he intends that the part facing the public domain should be integrated into a fence then the part facing the public is exempt from ‘orlah if he does not intend to harvest its yield in the future. But the inner part which will be harvested is obligated.] , the inner part is obligated but the outer is exempt.
HALAKHAH: “If somebody plants for fences or building logs he is exempt,” etc. It is written (Lev. 19:23): “If you plant any food tree.” What is for food is obligated; for fencing, logs, or wood it is exempt. Then the one for food even if he intended it as a fence should be obligated! The verse says, “a food tree [It says “a food tree”, not “a fruit tree” as in the Creation story (Gen. 1:11–12); it must be intended for food; a fruit tree grown for its timber is exempt. A similar argument in Sifra Qedošim Parsha 3(2).] .”
Rebbi Yose understood the text from its beginning, from the meaning of what is said (Lev. 19:23): “Three years it shall be like ‘foreskin’ for you, it may not be eaten.” Does this not imply that the verse speaks about a fruit tree? Why does the verse say: “If you plant any food tree”? What is for food is obligated, for fencing, logs, or wood is exempt. Rebbi Jonah understood the text from its end, from the meaning of what is said (Lev. 19:25): “In the fifth year you shall eat its fruit, to increase its yield for you.” Does this not imply that the verse speaks about a fruit tree? Why does the verse say: “If you plant any food tree”? What is for food is obligated; for fencing, logs, or wood it is exempt.
It was stated [Tosephta 1, Sifra Qedošim Parsha 3(3).] : “Rabban Simeon ben Gamliel says, when has this been said? If he planted for fencing, logs, or wood, kinds appropriate for that use. If he planted an inappropriate kind it is obligated.” Rabban Simeon ben Gamliel said it correctly, what is the reason of the rabbis? Rebbi Zeïra said, if he changed the way it is usually planted [For the majority, a tree bearing edible fruit is exempt only if from the start it is treated so that any passer-by will see that the tree is not intended as fruit tree. In this version, the restriction of the rabbis is rabbinic. For Rabban Simeon ben Gamliel it all depends on the planter’s intention, an attitude rejected by R. Simeon ben Ioḥai in Mishnah Ševi‘it 2:1. The Rome ms. does not read במשנה; then R. Zeïra’s is a straight declarative sentence: “The way it is usually planted: …” In this version, the rabbis eliminate the intention of the planter as a matter of biblical law.] : For wood tightly together, for logs cutting off branches, for a fence the location of the fence proves it.
It was stated in the name of Rebbi Meïr: “All trees can be exempted by intention except olive and fig trees.” Rebbi Meïr is consistent since he says [Mishnah Kilaim 6:6. He holds there that any “futile” fruit-bearing tree may be planted in a vineyard to support the spreading vines without infringing on the prohibition of mixing species in a vineyard.] all trees are futile except olive and fig trees.
It was stated in the name of Rebbi Simeon: The only kinds admitting an intention of exemption are three: [buckthorn] [Reading with R. S. Cirillo רימין for רימון, defined by Maimonides (Demay 1:1) by Arabic נַבק “buckthorn, lotus fruit.” Pomegranate trees (רימון) have valuable fruits and are not planted for their wood. Cf. Demay 1, Note 4.] , sycamore, and caper bush. Are these obligated for tithes [Reading with R. S. Cirillo רימין for רימון, defined by Maimonides (Demay 1:1) by Arabic נַבק “buckthorn, lotus fruit.” Pomegranate trees (רימון) have valuable fruits and are not planted for their wood. Cf. Demay 1, Note 4.] ? This is a dispute between Rebbi Abba bar Mamal and Rebbi Hila. They differed: If somebody kept his fruit trees for wood, Rebbi Abba bar Mamal said he is obligated, Rebbi Hila said he is exempted. Rebbi Abba bar Mamal said he is obligated, from the following [Ma‘serot 1:1, Note 20.] : (Deut. 14:29) “The Levite shall come, because he has neither part nor inheritance with you.” You are obliged to give him from what you have but he has not [Since the fruits of the tree destined to be cut down as fire wood remain private property, they are subject to tithes. The next two sentences are irrelevant here; they are just copied from the source in Ma‘serot.] . This excludes abandoned property for which your and his hands are equal. Gleanings, forgotten sheaves, peah, and abandoned property are all equal.
Rebbi Hila in the name of Rebbi Yose said he is exempt, from the following [Mishnah Ma‘serot 4:5.] : “If coriander is sown for its seed, its greenery is free.” Coriander is different since it has a different threshing floor [The seeds. Exempting the greenery is not exempting the entire plant.] . But he says from the following [Ma‘serot 1:1, Notes 32–36. If somebody keeps an entire cabbage patch to grow seeds it does not exempt the patch from tithes even though the seeds are inedible.] : “If someone keeps cabbage for seeds, his opinion is inoperative; for single stalks it is not inoperative.” Rebbi Jonah said, only if he collected greens. But if he did not collect greens, do we say that wood is subject to tithes [Fruits from trees grown for their wood are subject to the laws of ‘orlah only if they are taken down. Since it is stated later that ‘orlah is forbidden for any use, declaring the fruits as wood makes them usable.] ?
Are these forbidden because of robbery? Is wood not also forbidden because of robbery? What is his problem? For example, mulberry trees having no solidity [If a mulberry tree visibly is grown for firewood (Note 5), is it permitted for strangers to take mulberries without paying for them since these cannot be used as firewood? The question is not answered. (Explanation of R. Eliahu Fulda.)] .
A buckthorn [Reading with R. S. Cirillo רימין for רימון, defined by Maimonides (Demay 1:1) by Arabic נַבק “buckthorn, lotus fruit.” Pomegranate trees (רימון) have valuable fruits and are not planted for their wood. Cf. Demay 1, Note 4.] planted for buckthorn berries, a myrtle planted for myrtle berries [These trees are not usually planted for their berries.] , some Tannaïm stated: obligated, some Tannaïm stated: exempt. Rav Ḥisda said, he who said “obligated”, at a place where most are guarded [The rare places where the berries of these bushes are eaten and valuable.] ; he who said “exempt”, at a place where the majority do not guard. Rebbi Yose asked, if it is at a place where most do guard why does he have to think, even if he did not think! Are we saying: Olive trees and fig trees only if the thinks about them [Since these are always guarded and used for their fruit, nobody thinks that they are subject to ‘orlah only if expressly planted for their fruit. Therefore, at a place where myrtle berries customarily are used in food, the individual’s intent should be irrelevant.] ? But even if one half do guard, one half do not guard [In that case, no preponderant use is established.] ! Rebbi Matthew [In the Rome ms.: R. Mattaniah.] understood this from the final statement: “At a place where the majority [“The majority do not” means “strictly more than one-half”.] do not guard” even if he did not think it is exempt.
Rebbi Joḥanan in the name of Rebbi Simeon ben Joẓadaq: A vine growing in a copse is exempt from ‘orlah. Rebbi Yose said, even if he planted it. But did we not state: “If it grew by itself it is obligated for ‘orlah”? There, when it was planted in a cultivated place, but here if it was planted in a copse. Rebbi Eleazar said, this means if its yield is not worth its tending but if its yield is worth its tending it is obligated.
Rav Ḥuna asked: If an etrog tree [The etrog is identified as the “fruit of the splendid tree” (Lev. 23:40) to be taken in procession on the holiday of Tabernacles. If ‘orlah did apply, then the fruits of the young tree would not be usable. The question presupposes that the etrog is edible, the fruit of Citrus medica cedrata, cf. Ma‘serot 1, Note 86, but it is not intended to be eaten.] was planted for its obligation, is it obligated for ‘orlah? Rav Ḥuna came back and said: An etrog tree planted for its obligation is obligated for ‘orlah. Did we not state there: (Lev. 23:40) “You shall buy for yourselves” and not from the obligation [The “four kinds”, etrog, palm fronds, myrtle, and willow twigs, should be acquired for the holiday, not taken from what is already obligated for religious purposes; in the case of the etrog this refers to fruits of Second Tithe brought to Jerusalem for the holiday.] ? There, “you shall buy for yourselves” with money, not from the obligation. But here, as you say in the matter of shofar, (Lev. 23:24) “a day of blasts it shall be for you”, from anywhere [Since “religious obligations are not for usufruct”, a shofar can be used for blowing even if it is forbidden for usufruct.] . And here, (Lev. 19:23): “Three years it shall be like ‘foreskin’ for you, it may not be eaten,” in any way. What is the difference between this [Using the etrog for Tabernacles instead as food.] and him who guards his fruits to use as wood? He wants the tree itself just as he wants the fruits. But here, he wants the fruit and is not interested in the tree. In addition, as Rebbi Ḥanina said, (Lev. 23:40) “fruit”; if you say it is part of the tree nobody can acquit himself of his obligation on the holiday! What can be compared to it? An olive tree planted for light on Ḥanukkah. Rebbi Yose bar Abun said, one is biblical, the other rabbinic! And you say so? What can be compared to it? An olive tree planted to light the candelabrum [An olive tree planted with the idea that its fruits should be used exclusively to produce oil for the candelabrum in the Temple. By the preceding argument, it is subject to the rules of ‘orlah.] ; then both are biblical.
Rebbi Simeon ben Yaqim asked before Rebbi Joḥanan: If he planted the lower part as fence but the upper part for food, or the lower part for food but the upper part as fence? He said to him, one is like the other, whether the upper part for food but the lower part as fence, or the lower part for food but the upper part as fence [Reading of the Rome ms. Leyden (corrected) זמודה, Leyden uncorrected and Venice ומודה “and agrees”.] . How does one know? He brings a string and ties it as a sign: So far as fence, the excess for food.
Rebbi Zeïra asked: One understands if the lower part is for a fence but the upper part for food, but the lower part for food but the upper part as fence? It grows out of something forbidden and you say so? Rebbi Zeïra follows his own opinion [Kilaim 5:7, Note 76.] , as Rebbi Zeira said in the name of Rebbi Jonathan: An onion from kilaim in a vineyard which he removed from the soil and planted anew is forbidden even if it increases manifold, since growth of what is forbidden can never justify forbidden produce.
If he planted as a fence and then thought to use it for food, it goes after his thought. [If he first thought to use it] for food and then thought to use it as a fence, his [intent] cannot be accepted [An obligation can be created by intent; it cannot be removed by intent.] . If he planted as a fence the first year and afterwards thought to use it for food, since he thought to obligate it is obligated. But did we not state: “Rebbi Yose says, even if the inner part is for food, the outer part as fence, the inner part is obligated but the outer is exempt”? There, what is for food is always for food, for a fence always for a fence, but here, since he proceeded with a thought of obligation, it is obligated.
If he planted as a fence for three years, afterwards thought to use it for food, and it grew more? Rebbi Jeremiah said the addition is exempt, Rebbi Abba said the addition is obligated. Rebbi Yose said, the opinion of Rebbi Jeremiah seems to be difficult but it is only reasonable, as we have stated [Ma‘serot 5:4, Note 66. It seems that R. Jeremiah follows R. Aqiba in holding that any branches grown after the first three years are exempt from ‘orlah.] : “If a field became one-third ripe in the possession of a Gentile and a Jew bought it, Rebbi Aqiba says the addition is exempt. But the Sages say, the addition is obligated.” In our case the stem is exempt and its addition should be obligated [This is R. Yose’s argument that R. Jeremiah’s position is reasonable: Grain one-third grown is only potentially subject to tithes, after harvesting and processing. Since usually grain is not harvested one-third grown, any additional growth after one-third is normally subject to tithes. But after three years, the stem of a tree has totally outgrown any obligation of ‘orlah.] ?
Rebbi Joḥanan said, the words of Rebbi Ismael: Anything not subject to ‘orlah is not subject to the fourth year [The year following the three years of ‘orlah when (Lev. 19:24) “in the fourth year all its fruit shall be holy for praises of the Eternal.”] . Rebbi Joḥanan asked: Until it was subject to ‘orlah for three years? Rebbi Jonah said, he asked about the principle of ‘orlah and no principle of ‘orlah is less than three years [According to R. Jonah, no period of ‘orlah less than three years can induce the holiness of the fourth year fruits.] . Rebbi Yose said, he asked about the principle of the fourth year; anything not having three years is not subject to ‘orlah and not subject to the fourth year [According to him, any period of ‘orlah which ends at the end of the third year after planting induces the holiness of the fourth year fruits; no plant not surviving a full three years can be subject to ‘orlah.] .
It was stated [Tosephta Ma‘serot 2:22. A different text in the Babli (Giṭṭin 22a, Baba Batra 27b; also Nedarim 59b) attributes to Rebbi the statement here of R. Joḥanan. “Outside the Land” excludes Syria, cf. Mishnah 3:9.] : “If a tree is partially planted in the Land and partially outside the Land, since it is partially planted in the Land it is as if completely planted in the Land, the words of Rebbi. Rabban Simeon ben Gamliel says, the part planted in the Land is obligated, the part planted outside the Land is free.” Rebbi Abbahu in the name of Rebbi Joḥanan: It is as if ṭevel and tithed are mixed together [This implies that, for Rebbi, fruits from this tree cannot be used as heave and tithe for other trees, neither can any fruit from this tree be freed from the obligation of heave and tithes by anything but other fruits from the same tree. The reason is that each fruit is both obligated and not obligated; taking from another tree would be potentially tithing from what is obligated for what is not obligated.] .
Rebbi Zeïra in the name of Rebbi Joḥanan: An exempt root exempts. Is that following Rebbi who said roots live off one another? It is the opinion of everybody. Here, an exempt root exempts. When you say that an exempt root exempts, [you deal with] an old root that expanded from its own ground to that of another’s [If an older fruit tree develops a new stem from an old root, the new stem is exempt from the rules of ‘orlah since it is considered a branch of the old tree. This is important for “sinking” branches (Kilaim 7:1, Note 1).] ; but if it extended from outside the Land into the Land it [The previous argument. An “exempt root” is not one exempt from the start but one that has outgrown its ‘orlah status.] does not apply.
An exempt root exempts. But did we not state: “Rebbi Yose says, even if the inner part is for food, the outer part as fence, the inner part is obligated but the outer is exempt”? Should not the outer part make the inner exempt? Rebbi Zeïra said it anonymously, Rebbi La in the name of Rebbi Eleazar: He might think about it to obligate it. [The roots are not exempt; part of the tree is exempt by force of the (revocable) intention of the planter.]
Rebbi Assi in the name of Rebbi Joḥanan: Roots do not count. Rebbi Zeïra said to Rebbi Assi, did you hear that explicitly from Rebbi Joḥanan or did you discuss ‘orlah and this came up relating to First Fruits when he said, roots do not count [Since in presenting First Fruits to the Temple the farmer has to declare (Deut. 26:10): “Here I brought the first of the fruits of the land You gave me,” one might think that a tree on the farmer’s land whose roots extend under the land of another owner would be disqualified for First Fruits. Maybe the statement of R. Joḥanan means only that any tree on the farmer’s land qualifies, without implications for the rules of ‘orlah?] ? Rebbi Zeïra said, what we say, roots do not count, if the roots spread from outside the Land into the Land. But when they spread from the Land to outside the Land they do count [Any tree in the Land is obligated, even if its root started growing outside the Land. Any tree growing on any root which started to grow in the Land is also obligated.] .
If one bound it to an old tree [“Binding” is an inexact expression (cf. Mishnah Kilaim 6:9); the young tree is grafted or otherwise made to be fed by the old tree.] it is exempt, to [a tree] outside the Land it is exempt. To a dedicated [tree] it is obligated, to the lower or upper part it is obligated. To a dedicated [tree] it is obligated because one might redeem it and make it obligated. To the lower part it is obligated because he might think about and obligate it [The same argument as above, Note 41.] .
Does Rebbi Yose [In the Mishnah, Note 1.] follow Rabban Simeon ben Gamliel [In the Tosephta dealing with heave and tithes from a tree on the border line, Note 37.] ? He might even hold with Rebbi! ‘Orlah depends on one’s intention, tithes do not depend on his intention.
MISHNAH: When our forefathers came into the Land, what they found planted was exempt. If they planted even though they had not yet conquered, it was obligated. If somebody plants for the benefit of the public [But on his private property.] , it is obligated; Rebbi Jehudah exempts [This is not discussed in the Yerushalmi. The Babli (Pesaḥim 23a) explains that R. Jehudah concludes from Lev. 19:21, “it shall be like ‘foreskin’ for you (plural)” that the commandment is addressed to the individual; a communal obligation would require the collective.] . If somebody plants on public property, the Non-Jew who planted [If he planted a tree in the Holy Land, its fruits are forbidden for Jews during the first three years. The other cases of the Mishnah are discussed in the Halakhah.] , the robber who planted, and he who plants on a ship, are obligated for ‘orlah.
HALAKHAH: (Lev. 19:21) “When you plant,” this excludes what Gentiles planted before Israel came to the Land [Sifra Qedošim Parašah 3(2).] . Rebbi Huna in the name of Rebbi Abba, this implies that an exempt root exempts [Since a tree planted a day before Israel crossed the Jordan is permanently exempt.] .
“If they planted even though they had not yet conquered, it was obligated.” Following Rebbi Ismael who said all “comings” [Any command introduced by the words “it shall be when you come into the Land” applies only after the distribution of the Land to the tribes which by rabbinic tradition was 14 years after the crossing of the Jordan, cf. Seder Olam Chap. 11 (in the author’s edition, Northvale NJ 1998, Notes 3–5). Cf. Ševi‘it 6, Note 10, Ḥallah 2:1, Note 12. The statement of R. Ismael is discussed at length in Babli Qiddušin 37a–38a; it is also quoted in Yerushalmi Soṭah 7:4 (fol. 21c), 9:1 (fol. 23c).] said in the Torah refer to after 14 years, seven when they conquered and seven when they distributed? Rebbi Hila in the name of Rebbi Eleazar: Rebbi Ismael agrees in the cases of ḥallah and ‘orlah. It was also stated thus: (Num. 15:18) [This argument, directly attributed to R. Ismael in Sifry Šelaḥ #110, applies only to ḥallah where the usual form כבאכם is used. The rules for ‘orlah start: וכי תבאו אל הארץ but it does not say וירשתם וישבתם בה “after you inherited and settled there.” This kind of argument is applicable only to the Babylonian version which insists not on “coming” but on “settling”. In Sifra (loc. cit. N. 53), the immediate obligation of ‘orlah after the crossing of the Jordan, whether planting was done by Jew or Gentile, is deduced from Lev. 19:23: “When you come into the Land and plant any food-tree.”] “At your coming,” because the verse changed its language, the Sages changed [This seems to imply that Sadducee interpretation was different.] the terms of obligation.” Rebbi Jonah asked: Rebbi Ismael is inconsistent. There, he says “being” and “getting” is the same [In the chapter on dedications, Lev. 27:9 ff., the redemption of a house is described by והיה לו “it shall be his”, whereas the redemption of a field is וקם לו “it shall be confirmed for him”. The rules are identical even though the expressions are different. The corresponding baraitot in Sifra Beḥuqqotai Pereq 10 are anonymous.] , “breaking” and “smashing” is the same [Two parallel synonymous expressions in Deut. 12:3. In this case, Sifry Deut. #61 disagrees and notes that “smashing” is more than “breaking”.] , “redemption” and “deliverance” is the same [Lev. 27:28,29; two parallel verses.] , and here he takes note of a change in expression!
“If he planted for the public benefit, it is obligated; Rebbi Jehudah exempts”. The rabbis seem inconsistent. There [Mishnah Nega‘im 12:4; cf. Babli Yoma 12a.] , they say: “Jerusalem and outside the Land cannot become impure by skin disease,” but here, they say so [As explained in the next Note, Jerusalem is public property and any tree planted there should be exempt as planted for public use.] ! There (Lev. 14:35) “the owner of the house comes” [The actual verse referred to is Lev. 14:34: “I shall put skin disease on a house on the Land of your inheritance.” This excludes all houses in territory not distributed to the tribes; Jerusalem was conquered by David as capital not belonging to any particular tribe. Sifra Meẓora‘ Parašah 5 proves from the verse that (a) the rules did not apply before the distribution of the Land, (b) a house built on poles, not being a “house on the Land” is also not subject to the rules, (c) houses in Jerusalem (and certainly outside the Land) are excluded.] , excluding Jerusalem which was not distributed among the tribes. But here, (Lev. 19:21) “when you plant,” in any way.
Rebbi Judah seems inconsistent. There [Sifra Meẓora‘ Parašah 5(5), Tosephta Nega‘im 6:1, Babli Yoma 12a, Megillah 26a, Baba Qama 82b; referring to the exemption from the laws of skin disease.] he says, “I heard only the Temple, [Since Jerusalem itself is clearly part of the domain of the tribe of Benjamin (Jos. 18:16), but the Temple Mount was bought by David with tax money (2S. 24:24, 1Chr. 21:25) and therefore became the property of the entire people.] ” and here he says so! There, he says “I heard only the Temple” as a tradition, here in his own name.
Rebbi Yose ben Rebbi Abun said, explain it following Rebbi Simeon ben Eleazar, as it was stated [Tosephta 1:2.] : “Rebbi Simeon ben Eleazar says in his [R. Jehudah’s. R. Simeon ben Eleazar holds that the Mishnah misrepresents R. Jehudah’s position.] name, if somebody plants for the public, it is obligated for ‘orlah. If it grew by itself [In the Tosephta: “If it grew by itself in the public domain.”] it is exempt from ‘orlah.” [This sentence, which has no parallel in the Tosephta, is probably part of R. Simeon ben Eleazar's baraita.] If somebody plants for the public, it is obligated, in the public domain it is exempt. If somebody plants for the public, it is obligated as if he planted on his own property. In the public domain it is exempt, if he robbed real estate [If somebody took possession of real estate by force and the original owners gave up hope of recovery, the real estate is no longer in the possession of the original owners. It cannot be legally in the possession of the robber since real estate “cannot be robbed.” Therefore, the legal status of the parcel is that of public property. Movables are acquired by a robber or thief; the robber or thief is required to pay (eventually with a fine added) for what he took. But real estate is not mentioned in the biblical laws of restitution. There also is no rabbinic provision of monetary restitution for real estate illegally taken since it is assumed that times of lawlessness in which real estate can be taken by force are relatively short and that with the return of civilized society, genuine claims of title can be regained in court.] . Can real estate be robbed? Rebbi Hila said, even though real estate cannot be robbed, hope for recovery of real estate can be given up.
Rebbi Joshia brought saplings from outside the Land in their earth and planted them in the Land. Rebbi Jona, to gain the years [Since ‘orlah applies also outside the Land by tradition (Mishnah 3:9), by bringing the saplings in their earth he did not interrupt the years of ‘orlah.] . Rebbi Yose, to gain the fourth year [The saplings were already three years old; R. Joshia brought them in their earth so they should not be subject to the requirement of redemption in the fourth year (Lev. 19:24, cf. Peah 7, Note 99) which does never, even rabbinically, apply to trees planted outside the Land except vines.] .
It was stated [In Tosephta 5: “If a Gentile grafted a food tree on a futile tree, one counts from the moment it was planted.” In this version, it is clear that the count starts with the planting of the futile tree, not the grafting of the fruit tree. The Tosephta was not known to the editors of the Yerushalmi.] : “If a Gentile grafted a food-tree on a futile [A tree either without edible fruits or whose fruits are not generally objects of trade; cf. Mishnah Kilaim6:6.] tree, even though a Jew is not permitted to do this, it is obligated for ‘orlah.” From when does one count ‘orlah? From the moment it [The futile stem.] is planted. Rebbi Simeon ben Laqish said, only those for which intent is important [Trees whose fruits are usually considered animal feed and only the intent of the grower can give them the status of human food.] ; for example carob trees from Ẓalmon or Gidud [These places and the kinds of carob referred to have not been identified.] ; but on a willow [“Willow” is taken as example of a tree whose fruits are neither human food nor animal feed.] it is as if planted in the earth. Rebbi Joḥanan said, even on a willow. But did we not state [Mishnah Ševi‘it 2:6; Note 42. “Sinking” is bending a branch down to the soil to have it grow roots.] : “One does not plant, sink, or graft in the year preceding a Sabbatical year later than thirty days before the New Year; if he planted, sank, or grafted it should be uprooted.” According to Rebbi Simeon ben Laqish who will explain it by grafting on a willow it is understandable [The forbidden graft is graft of a fruit tree on a willow.] . According to Rebbi Joḥanan who said even on a willow, why should it be uprooted? There is a difference because they unite in the Sabbatical year [אחה is usually used for “invisible mending”. The two trees unite; this is forbidden agricultural activity in the Sabbatical. It has nothing to do with the rules of ‘orlah.] . And that is what has been said, [Tosephta Ševi‘it 2:3, Roš Haššanah 1:8; Ševi‘it 2:6 (Notes 50–52), Roš Haššanah 1:2 (fol. 57a); Babli Roš Haššanah 9b. The Tosephta adds: “If it is ‘orlah it remains ‘orlah, fourth year remains fourth year [until the 15th of Ševaṭ.]”] “If somebody planted, sank, or grafted 30 days before the New Year, it counts for him as a full year and he is permitted to keep it in the Sabbatical year. Less than 30 days before the New Year, it does not count for him as a full year and he is not permitted to keep it in the Sabbatical year. Truly, they said, the fruits from this planting are forbidden until the fifteenth of Shevaṭ.” Rebbi Joshua from Ono [An early Amora acting as “Tanna”, memorizing baraitot.] stated: There is no “grafted” here [According to R. Joḥanan, grafting never creates a problem of ‘orlah.] . Rebbi Abba Mari said, even for Rebbi Simeon ben Laqish there is no “grafted” here; for the past, certainly not to start out with [Since grafting a fruit tree on a fruitless tree is forbidden, the Tosephta cannot speak only about somebody coming to ask whether he might graft on a fruit tree before Roš Haššanah. But in that case, R. Simeon ben Laqish agrees that orlah is counted for the root tree. R. Simeon ben Laqish has not stated how he would rule if somebody grafted on a willow and only afterwards came to ask.] .
Rebbi Isaac bar Ḥaqola in the name of Ḥizqia: If somebody plants in a flower pot without a hole [In the Mishnah, “planting in a ship.” Since the ship in question must be in the Land, it is a small river boat, sometimes made of clay. Cf. Ḥallah2:2, that the ship is under the agricultural laws of the Land only if it touches the ground. The Tosephta (2–3) in ms. Erfurt has “exempt” for ship and pot without hole; the passage is missing in ms. Vienna.] , it is subject to ‘orlah. Rebbi Yose said, because the roots break through it [Tree roots cause clay pots to burst.] . Rebbi Jonah uses the expression: Clay vessels withstand roots [Rebbi Jonah, a generation after R. Jeremiah, gives a negative answer to the latter’s question. Clay vessels withstand all roots except tree roots.] . Rebbi Jeremiah asked: If he planted a gourd in it, since it is as if there were a hole for trees, is it like as if with a hole for vegetables?
Rebbi Joḥanan in the name of Rebbi Yannai: A tree planted inside a house is obligated for ‘orlah [Nowhere is “field” mentioned in the verses defining ‘orlah.] but free from tithes since it is written (Deut. 14:22): “You shall certainly tithe all yield of your seeds which comes from the field.” For the Sabbatical it is problematic [Whether the Sabbatical restrictions apply to fruit-bearing house plants.] since it is written (Lev. 25:5): “The Land shall celebrate a Sabbath for the Eternal.” And it is written (Lev. 25:6): “You shall not sow your field nor prune your vineyard.”
MISHNAH: If a tree was moved with its lump [Literally “the rock”. It means the roots with the earth compacted by them. If the roots are totally contained in the earth moved with the tree, it is not a new planting and no ‘orlah is created. But if the roots are moved without sufficient earth then a new count of ‘orlah has to start.] , if it can survive it is exempt, otherwise obligated. If the lump was partially moved, or the plough displaced it and turned it into dust [Maimonides (autograph), R. Simson, the Cambridge, Munich, and Parma mss. of the Mishnah, as well as the first hand of the Kaufmann ms. and the editio princeps all read בעפר “it was repaired with dust”, i. e., the hole created when the tree was pushed aside by the plough was filled with earth. If the tree could have survived without the new earth, it is not a new planting. Or zarua‘ (#215) reads כעפר with the Yerushalmi mss. and the corrector of the Kaufmann ms. but explains as if it were written בעפר.] , if the tree can survive it is exempt, otherwise obligated. If a tree was cut but there remained a root, it [The new growth from the existing root.] is exempt. How large shall the root be? Rabban Gamliel [It must be Rabban Simeon ben Gamliel, as read in some Mishnah mss., since Rebbi Eleazar ben Jehudah from Birtota was younger than Rabban Gamliel and a teacher of Rabban Simeon ben Gamliel; cf. J. N. Epstein, מבוא לנוסח המשנה, p. 1199.] in the name of Rebbi Eleazar ben Jehudah from Birtota: Like a tenter’s needle [Definition of Arukh, Maimonides, and R. Simson. The tenter is the frame holding the warp in clothmaking; the needle is used to stretch the threads. In the Halakhah, the word appears as מיתוי. In Kelim 13:5, the Gaonim read מיתח, “to stretch”, and explain that the weavers use broken needles to stretch the warp. Buxtorf derives the word from Greek μιτόω “to stretch”.] . If a tree was uprooted but it had a sunken branch [A branch of the tree had been bent down to the earth and part of it covered with earth so that it grew new roots from which a new tree started to grow. As long as everything remains connected, the new tree is considered part of the old and is exempt from ‘orlah. But if now the original tree is separated from its roots and the new tree must live off the new roots of the sunken branch, it reverts to ‘orlah for the next three years.] and now lives off that, the original trunk becomes like the sunken branch. If he sank year after year and it was interrupted, one counts [The new parts, no longer connected to the original trunk, become ‘orlah.] from the moment it was interrupted. Attachment of vines [This term covers sinking of shoots of vines and grafting new shoots on branches of an old vine.] , attachment after attachment, even if he sank them into the earth, are permitted. Rebbi Meïr says, where it is in its force it is permitted, where it is weak it is forbidden [According to him, repeated grafting exempts the new limb from ‘orlah only if the previous graft had become one with the tree before the last graft.] . A sunk branch which became separated but is full of fruits, if it increased by one twohundredth it is forbidden [Since it was stated at the beginning of the Mishnah that sinking does not create an obligation of ‘orlah, the fruits grown before the new roots were separate from the original trunk grew exempt from ‘orlah. It now is stated that ‘orlah fruits are permitted only if the exempt parts of any fruit are more than 200 times the forbidden; cf. also Mishnah 2:1; Kilaim 5:6.] .
HALAKHAH: So is the Mishnah: If it could [This is the discussion of Mishnah 3. If the transplanted tree could survive depending only on the earth transferred with it, without help from the earth surrounding it at the new site, no new ‘orlah is created. Cf. J. N. Epstein, מבוא לנוסח המשנה2, p. 450.] survive it is exempt, otherwise obligated.
Ḥizqiah asked: Less than that [If the root is not as thick as a tenter’s needle. While any object of idolatrous worship is forbidden for usufruct, this excludes the earth and anything permanently affixed to it (Mishnah Avodah Zarah 3:5). It is talmudic theory that holy trees are forbidden only because statues are buried between their roots.] , is it as if torn out? If he worshipped it, is it forbidden? Does one write on it women’s bills of divorce [Since it is written: (Deut. 24:3) “He shall write for her a bill of divorce and hand it over to her,” one concludes that a bill of divorce may not be written on anything that cannot be delivered immediately after signing, e. g., on a leaf connected to the ground which would have to be cut before delivery is possible (Sifry Deut. 269, Giṭṭin 3:2, Babli Giṭṭin 19b).] ? They say, Ḥizqiah retracted this. Rebbi Jonah said: Ḥizqiah retracted because Rebbi Joḥanan [Who was Ḥizqiah’s student and would not have transmitted a teaching rejected by his teacher.] said in the name of Rebbi Yannai, if it is [thick] like a tenter’s needle it is certain that it is three years old [If it is thinner, it is obligated for ‘orlah, which means it is planted in the earth.] .
Ḥizqiah asked: A third of a needle [means] one year, two thirds two years [Is the thickness proportional to the time passed after planting? The negative answer is in Ševi‘it 5, Notes 20–21.] ? The colleagues asked: A needle and a third, is it obvious that it is four years old? If you say, he did not retract, why would he have asked this [If a thin root is not in the earth it cannot count for ‘orlah. The second of Ḥizqiah’s questions cannot be asked if the first is answered in the affirmative.] ? Rebbi Jonah said: Ḥizqiah retracted this, because Rebbi Joḥanan said in the name of Rebbi Yannai. if it is [thick] like a tenter’s needle it is certain that it is three yeards old [The condition of the Mishnah is sufficient but not necessary to characterize a three-year-old tree.] .
Rebbi Yose said, even three years old it will not have the thickness of a tenter’s needle. Rebbi Yudan said, a baraita supports Rebbi Yose: [From here to the end of the Halakhah, the text is from Ševi‘it 1:9, Notes 72–79. The baraita explains the Mishnah defining how long a tree is called “sapling.” A tree which is a sapling for seven years cannot have very impressive roots after three years.] “Rebbi says, when they said five, six, or seven years old, for vines five years old, for figs six years old, for olives seven years old.” [These two sentences belong to Ševi‘it 1:9 and have no meaning here. In any case, the size of the root is no direct indication of a tree’s age.] But do we not see the growth of the fig tree come with fruits? Rebbi Yudan said, according to Rebbi Tryphon we throw it on its width.
“If a tree was uprooted but it had a sunken branch;” blessing is in it. Rebbi Ḥuna in the name of Rebbi Joḥanan: There is bĕrîkhâ in it. Rebbi Mana said, some people are called Bĕrîkhâ as you say (Gen. 24:31): “Come, the Eternal’s blessed.” [Both homiletic versions, that sinking branches brings blessing to the farmer, are identical. The Aramaic translation of the phrase from Gen. is עוּל בְּרִיכָא דַה֗ both in Onqelos (Eastern) and Yerushalmi (Pseudo-Jonathan, Western). The modern Ashkenazic version of the name is Brick, Bruck. Cf. E. and H. Guggenheimer, Jewish Family Names and Their Origins, Ktav, 1992.]
Rebbi Zeïra, Rebbi Assi in the name of Rebbi Ḥanina; Rebbi Abba, Rebbi Ḥiyya, Rebbi Eleazar, Rebbi Ḥananiah in the name of Rebbi Ḥanina ben Gamliel: If a young tree was attached to an old one, the young one was cleansed [If an ‘orlah twig was grafted on an old vine, it is no longer ‘orlah. In the Babli, Soṭah 43b, this is a purely Amoraic statement by R. Abbahu. {The Bablylonian equivalent of ספק is סבך.}] . Rebbi Ḥiyya bar Abba said, the Mishnah says so: “Attachment of vines, attachment after attachment, even if he sank them into the earth, are permitted.” Should we not say that maybe the young tree formed roots before it was well connected [The term מאחה usually means mending a tear in a garment so that it looks like new.] to the old one [In case the newly grafted branch was at the same time sunk into the ground.] ? Rebbi Ḥananiah the son of Rebbi Hillel: This follows Rebbi Jehudah, since Rebbi Jehudah says it connects well more quickly than it forms roots.
Rebbi Assi in the name of Rebbi Joḥanan: Roots do not count [Cf. Note 42. R. Assi rejects R. Ḥananiah ben R. Hillel’s solution and holds that, according to R. Joḥanan, nobody cares whether the healing of the graft or the development of new roots is faster.] . Rebbi Zeïra said to Rebbi Assi, did you hear that explicitly from Rebbi Joḥanan or from his argument? As Rebbi Joḥanan said, moreover it was stated [Tosephta 4.] : “If someone dedicated [Both the sapling and the ground in which it will be planted are dedicated to the upkeep of the Temple.] and then planted, it is exempt from ‘orlah; planted and then dedicated, it is subject to ‘orlah.” You wanted to say, dedicated is exempt from ‘orlah, old is exempt from ‘orlah. But this is not comparable! Dedicated things can be redeemed and become obligated since he might think about it to obligate [The Tosephta states that redemption of dedicated plants induces ‘orlah to be counted from the moment of planting. This means that the obligation was latent even in the state of dedication.] ; can you [say] about an old tree that one might think about it to obligate?
Rebbi Abbahu in the name of Rebbi Joḥanan: A citrus medica tree which formed flower buds subject to ‘orlah and the fruits grew when it was permitted [Its fruits stay on the tree longer than one season; therefore, for ‘orlah the determining factor is the formation of the flower, for tithes the time of collection (Mishnah Bikkurim 2:6). A flower fertilized in the third year cannot produce permitted fruit.] ; if [the tree] was attached to another tree even if [the fruit] grows much it is forbidden because growth of something forbidden cannot lift what is forbidden [Even if the growth after the end of the third year is more than 200 times the volume in existence at the end of the third year, the etrog is forbidden.] . Therefore, an attached young twig must be permitted because, if you say it is not permitted, even if it grows much it will be forbidden [This explains the Mishnah.] ! Rebbi Zeïra in the name of the rabbis: A citrusmedica tree which formed flower buds subject to ‘orlah and the fruits grew when it was permitted; what was attached to another tree even if it grows much is forbidden; one whips for the size of an olive [This is taken to be another formulation of the reasoning of R. Joḥanan: If eating the volume of an olive from this etrog (the edible kind, citrus medica cedrata) is criminal then all that grew after the third year must be forbidden by biblical law since otherwise there would not be the volume of an olive of biblically forbidden fruit.] .
Rebbi Maisha said to Rebbi Zeïra: You say two things which contradict each other. Here you say, because growth of anything forbidden cannot lift what is forbidden [One does not say “all growth is forbidden” but “[permitted] growth of something forbidden cannot lift the prohibition inherent in the fruit.” Therefore, the essentially forbidden thing is only the fruit as it exists at the end of the ‘orlah period. Then the argument outlined in Note 121 is faulty.] ; there you say one whips for the size of an olive. Should he not be whipped only in the proportion [If the volume of the fruit at the end of the ‘orlah period is a and the final volume is b (measured in volumes of olives) then using a piece of the fruit is criminal only if the size of the piece is at least b/a > 1.] it contains? Rebbi Jonah said, in the first case it lives because of itself [No attaching or grafting; in this case the entire fruit is forbidden.] , in the second because of the attachment [The rabbinic argument that “[permitted] growth of anything forbidden cannot lift the prohibition inherent in the fruit” applies only if the ‘orlah tree is attached to an older tree. While the act of attaching lifts the condition of ‘orlah from future fruits of the young tree, it is ineffective for the fruits already growing on the sapling at the moment of attachment.] . Then if a citrus medica, which blossomed in an ‘orlah year and grew in an exempt year, is attached reciprocally [The two trees keep their own roots but two branches, one of each tree, are grafted together.] to a tree of the same kind they will cleanse one another [If both of them are ‘orlah, both will be exempt at the moment one of them becomes exempt.] .
Rebbi Abbahu in the name of Rebbi Joḥanan and Rav Ḥisda, both say: they [Rebbi Meïr and the anonymous majority, whether attaching a young tree to an old one always frees the young one from ‘orlah or not.] differ in the uninformed [The information required by R. Meïr is not available.] case. What are we dealing with? If it is certain that it [The ‘orlah tree.] lives off the old tree, everybody agrees it is permitted. If it is certain that it lives off the young tree, everybody agrees it is forbidden [It remains ‘orlah.] . We must be dealing with the uninformed case. How could one know [How could one measure the flow of sap?] ? Rebbi Vivian in the name of Rebbi Ḥanina: If the leaves are turned towards the young tree one may be sure that it lives from the old one; if the leaves are turned towards the old tree one may be sure that it lives from the young one. Rebbi Yudan bar Ḥanin [One of the last authors mentioned in the Yerushalmi, a student of R. Berekhiah.] said, a sign: He who eats from his neighbor’s is ashamed to look at him. Rebbi Yudan, the father of Rebbi Mattaniah said, explain it if the leaves have fallen off.
“A sunk branch which became separated.” Rebbi Yudan said, not only a sunk branch but even a tree [A tree older than 3 years, full of fruits, becomes ‘orlah again if uprooted (with its roots exposed) and replanted, and the fruits will become forbidden if they grow by more than one 200th.] ; as Rebbi Assi said in the name of Rebbi Joḥanan, if an onion which one uprooted and replanted grows roots he has to tithe for everything [Discussed in Ševi‘it 6:3, Note 113. The parallel statement in the Babli (Nazir 54b, Menaḥot 70a), R. Isaac in the name of R. Joḥanan, makes it clear that the onion was fully tithed before being replanted.] . Rebbi Ḥiyya in the name of Rebbi Joḥanan, if an onion which one uprooted and replanted grows roots he has to tithe for everything, but you should not say it applies to here also [The quote from R. Joḥanan is correct, the inference is faulty; trees do not have the same rules as onions.] .
[From here to the last paragraph of the Halakhah the text is also in Nazir 6:10 (fol. 55c). It is clear from the later paragraphs that the original place of the text is in Nazir.] Ḥilfai asked Rebbi Joḥanan and Rebbi Simeon [ben Laqish] [Missing here, supplied from the text in Nazir.] , do condiments forbid with more than 200 [The Mishnah implies that ‘orlah does not forbid food if the forbidden part is less than 1/200 of the total. Does this also apply to spices which might be tasted in smaller amounts?] ? They said to him, condiments are not in more than 200 [The 1/200 rule also applies to condiments.] . But did we not state [Mishnah 2:4. The Mishnah states that these ingredients, if from ‘orlah, make everything forbidden. Since no quantities are mentioned one has to infer that there is no minimal quantity below which they are not active.] : “Anything which sours, spices, or creates dema‘?” If you say about 100 or 200, even if it does not sour, spice, or create dema‘ [Defined Demay Chapter 1, Note 175.] ! But we deal with grapes [Used as condiment for another dish. The 200 rule does not apply to spices proper.] . Rebbi Assi in the name of Rebbi Joḥanan, if they were not raisins, but if they were raisins they are condiments in more than 200. Rebbi Ḥiyya in the name of Rebbi Joḥanan, if they were not cooked, but if they were cooked they are condiments in more than 200.
Rebbi Assi in the name of Rebbi Joshua ben Levi in the name of Bar Pedaiah: [All sources of taste one in a hundred [A forbidden substance which can be tasted will make food forbidden if it represents more than 1% (for R. Ḥiyya, more than 1⅔%) of the total.] . Rebbi Ḥiyya in the name of Rebbi Joshua ben Levi in the name of Bar Pedaiah:] All sources of taste one in sixty. Rebbi Samuel ben Rav Isaac said to Rebbi Ḥiyya bar Abba: Rebbi Assi disagrees with you and the Mishnah disagrees with both of you: “Anything which sours, spices, or creates dema‘? If you say about 100 or 200, even if it does not sour, spice, or create dema‘ [Defined Demay Chapter 1, Note 175.] ! Therefore, we hold even more. Rebbi Jeremiah said, explain it for meat in meat [He applies the 1%/1⅔% rule only to forbidden meat cooked with permitted, cf. Terumot 10:9, Notes 106–109. The discussion in the next paragraph centers on this case.] . Rebbi Yose said, meat in meat is the same as all other prohibitions since Rebbi Abbahu said in the name of Rebbi Joḥanan, one estimates as if they were so [“So” are onions and leeks since R. Abbahu said in the name of R. Joḥanan that all forbidden [food] is estimated as if it were onion, as if it were leeks (Terumot 10:1, Notes 10–11). Since onions and leeks are used for their taste, it follows that admixtures of spices also follow the same 1%/1⅔% rule.] .
How is this? One says, all sources of taste by one in 100; the other one says, all sources of taste by one in 60. For him who says all sources of taste by one in 60, you take the forearm as one in 60 of the ram [The entire idea that biblical law permits to disregard minute amounts of forbidden food in otherwise permitted food is derived from the ceremony which releases the nazir from his vow (Num. 6:19). In general, from a well-being sacrifice a hind leg and the breast has to be given to the Cohen to be eaten by him and his family; that part then is forbidden to lay persons (Num. 18:18). But the ram which is the nazir’s well-being offering has to be cooked before the Cohen’s part, a foreleg, is separated and given to him; the remainder of the sacrifice is permitted to lay persons. From this one concludes that if in anything cooked the ratio of forbidden to permitted is no greater than that of the forarm to the entire ram, the food remains permitted.] . For him who says all sources of taste by one in 100, you take the forearm as one in 100 of the ram. For him who says one in 100, you remove the bones from the forearm. But if you remove the bones from the forearm, remove them from the ram! This you cannot do, as it was stated [This and the rest of the paragraph is from Terumot 5:9, Notes 103–106, and has been explained there. Since the bones of the forearm, being inedible, are not forbidden to lay persons, not only are they not counted as forbidden but they are added to the amount of permitted food.] : “The waste of heave does not combine with heave to forbid the profane, but the waste of profane combines with the profane to lift the heave.” Rebbi Vivian asked: Does the waste of heave combine with profane to lift the heave? Since Rav Ḥuna said, the husks of what is forbidden combine to permit, that means waste of heave combines with profane to lift the heave.
Rebbi Ḥiyya stated: All I forbade to you at other places I permitted to you here. Since everywhere 100 is a prohibition, more than 100 is permitted, but here even 100 is permitted [In Nazir and the Rome ms., the statement is in the name of Ḥizqiah, R. Ḥiyya’s (the elder’s) son. The previous argument is not quite conclusive since as a matter of practice we require that the amount of forbidden material should be strictly less than 1% (in the opinion adopted by the Babli, < 1⅔%). But nobody asserts that the edible part of the foreleg is less than 1% of the entire ram; so one has proved only the requirement ≤ 1%. Therefore, the rule remains one of traditional practice.] .
(In addition,) [Missing in the text in Nazir; the entire paragraph is from Kilaim 5, end of Halakhah 6.] “if it increased by one twohundredth it is forbidden.” Those of the house of Rebbi Yannai estimate by purslain. How does one know? Rav Vivian in the name of Rebbi Ḥaninah: He takes one out and leaves one in [the ground]; what the first one is less, the other did increase.
MISHNAH: If a sapling of ‘orlah or vineyard kilaim [Cf. Introduction to Tractate Kilaim, that the usufruct of anything sown in a vineyard is forbidden. Kilaim also follow the rule that less than 1/200 is not counted (Mishnah Kilaim 5:6).] became mixed with [other] saplings, one should not harvest. If he harvested it can be lifted [One takes out 1/200; the remainder is permitted. For this meaning of “lifting” cf. Terumot 4:6, Note 62.] by one in two hundred on condition that he did not have the intention to harvest [Since all the rules of lifting and disregarding the forbidden part are only for accidents; it is forbidden intentionally to use forbidden substances with the idea that they should e disregarded.] . Rebbi Yose says, he may intend to harvest [He holds that the lifting is only after the harvest; therefore this case does not fall under the forbidden category. Maimonides in his Commentary rejects the opinion of R. Yose, in his Code he accepts it. According to the Babli (Giṭṭin 54b), R. Yose holds that the prohibition of intentional use of forbidden substances is rabbinic and does not apply in a situation that never will happen since nobody will risk losing 45 vines because of one extraneous plant (Mishnah Kilaim 5:5). For the explanation of the Yerushalmi see Note 175.] ; it will be lifted by one in two hundred.
HALAKHAH: “A sapling of ‘orlah or vineyard kilaim.” But no saplings are kilaim in a vineyard [Since the verse (Deut. 22:9) only forbids sowing in a vineyard (grain or vegetables; never trees).] ! So is the Mishnah: “A vegetable bed of vineyard kilaim.” [In that case, it is difficult to see how one could not know which vegetable bed was forbidden.] Rebbi Yose ben Rebbi (the Mishnah: “A vegetable bed of vineyard kilaim.” Rebbi Yose ben Rebbi) Abun said, if he brought a flower pot and temporarily put it under a vine [Mishnah Kilaim 7:8, Halakhah 6; cf. Note 88. A tree in a flower pot rabbinically is considered a vegetable. A discussion of this text in J. N. Epstein, 2מבוא לנוסח המשנה p. 451.] .
Rebbi Simeon ben Laqish in the name of Ḥizqiah: He harvests three bunches and permits [If he has a vineyard with one forbidden vine whose situation is unknown, he harvests three bunches and considers them to be forbidden as fruits of the forbidden vine. Then the remainder is permitted.] . The position of Rebbi Simeon ben Laqish is inverted! There [Terumot 4:8, Note 83. Mishnah ‘Orlah 3:7 will explain that amphoras never can be disregarded; if there are 150 amphoras of which one is of terumah (which may be lifted by one in 100) that according to Hoshaia one may open only 100 and lift from them 1% as heave; the other 50 will be usable only if opened by accident (as R. Zeïra explains) because opened intentionally they will be forbidden. Why does he require only three here, not at least 50?] , he said in the name of Rebbi Hoshaia: If there were before him 150 amphoras which were opened, one hundred are permitted, fifty are forbidden, and the remainder will be permitted if they were opened. Rebbi Zeïra said, he said only “if they were opened;” therefore at the start it is forbidden to open them. And here, he says so? There in the name of Rebbi Hoshaia, here in the name of Ḥizqiah. They say there [In Babylonia, where no heave is biblical and in every respect one follows the more lenient opinion. While this does not imply anything for practice in the Land, it shows that Ḥizqiah is consistent and R. Simeon ben Laqish simply reports what others have said.] in the name of Ḥizqiah: He opens three amphoras and permits; one follows Ḥizqiah here.
But did we not state: “One should not harvest;” after the fact. And we have stated: “If he harvested it can be lifted by one in two hundred.” Rebbi Yose ben Rebbi Abun said, in the first case if he harvested three [They are forbidden for all use, being ‘orlah or kilaim.] ; in the second case if he harvested all of them [They are lifted by one in 200.] .
It was stated: Pomegranates of Bedan [They are so expensive that they never can be disregarded, Mishnah 3:7. But this is the rule only if it is certain that any of them is present. As Sefer Nir points out, if it is not known whether a certain pomegranate is of the Bedan kind or not, that one will be treated as a regular pomegranate because it will never fetch Bedan prices.] in case of doubt can be lifted, if certain cannot be lifted. It is the same on the ground [The case of the Mishnah, trees planted in the ground. {Rashi in Giṭṭin 54b holds that plants in the ground can never be lifted.}] . A doubt on the ground can be lifted, but the ground cannot lift [One cannot simply choose a tree out of more than 200, cut it down, and declare that the problem of ‘orlah or vineyard kilaim has disappeared.] . How is this? If a sapling of ‘orlah or vineyard kilaim became mixed with [other] saplings, (even) a case of doubt on the ground can be lifted, but the ground cannot lift. Rebbi Yudan asked: Is it the same for a cadaver [If a piece of cadaver meat (or any other piece of forbidden food) was not recognizable among similar pieces of kosher meat, may one take out one, declare it as cadaver meat, and declare the remainder as kosher. Is this a legitimate deduction from the opinion of R. Simeon ben Laqish in the name of Ḥizqiah?] ? Rebbi Yudan turned around and said, a cadaver has no lifting [The only things that can be lifted are heave, ‘orlah, and kilaim. All others are either a negligible quantity, where everything is permitted, or not, where everything is forbidden.] , the ground has a lifting.
“Rebbi Yose says, he even may intend to harvest, it will be lifted by one in two hundred.” What is the reason of Rebbi Yose? People are always thinning vines [Following R. Simeon ben Laqish in the name of Ḥizqiah, the unripe bunches of grapes cut out in thinning can be used to permit the remainder. {One cannot say that “thinning” refers to thinning out vines that were planted too close to one another since then the entire vineyard would still be ‘orlah; cf. Or Zarua‘ vol. 1, #320.}] .
There, we have stated: [From here on, the text is from Terumot 5:9 and has been explained there, Notes 100, 109–111.] “If a seah of heave fell into 100 and one milled it and it lost volume, in proportion to what the profane lost, the heave lost, and it is permitted.” It was stated: [“One may mill from the start to permit.” The baraita is Rebbi Yose’s, since “Rebbi Yose said,] he even may intend to harvest, it will be lifted by one in two hundred”. Rebbi Zeïra said, Cohanim are used to mill dema‘ in their houses. What is the difference between them? Kilaim in a vineyard. In the opinion of Rebbi Yose, one mills to permit; in the opinion of the rabbis, one may not mill to permit.
MISHNAH: Leaves, shoots, vine sap, and the flower [Definition of Maimonides, Arabic אַלפֻקָאח. He emphasized that חִצרִם “budding fruit” is forbidden. The same definition may be found in Arukh: “The state between budding of the flower and development of the fruit.”] are permitted for ‘orlah, the Fourth Year, and a nazir [He is forbidden (Num. 6:4) “anything made from the wine-vine”.] , but forbidden from a pagan sacred grove [Anything used in pagan worship is permanently forbidden for all usufruct except the soil and what stands on it. Therefore the grove itself cannot be forbidden but everything taken from it is.] . Rebbi Yose said, the flower is forbidden because it is a fruit. Rebbi Eliezer says, it is forbidden to use ‘orlah sap as curd. Rebbi Joshua said, I heard explicitly that one is permitted to use sap of leaves and sap of roots as curd. But the sap of unripe figs is forbidden because that is a fruit. Anqoqlot [Neither the meaning nor the etymology of this word are known as will be clear from the Halakhah. In the opinion of Arukh, the word designates the edible young shoots of the vine; this follows the Gaonic commentary of R. Nathan Av Hayeshivah who reads קנוקלות, or the reading of Or Zarua קנוקנות, “hairline sinews” (Babli Ḥulin 92b). This explanation is incompatible with the Yerushalmi. In the opinion of S. Krauss, the word is an expansion of עקל to which compare Arabic עקּל “to produce grapes”. The text of Sifra [Qedošim Parasha 3(3)] את ענקוקלות והבוסר also shows that ענקוקלות are misdeveloped grapes.] , the grape skins, the grape seeds, and the afterwine made from them, pomegranate skins and their flowers [The remainder of the flower visible at the tip of the outer skin.] , nut shells, and seeds [Of any ‘orlah tree.] are forbidden from ‘orlah, sacred groves, and for a nazir [Only the first four items.] . They are permitted in the fourth year [Only fruits are forbidden unless redeemed.] . Windfall [Of fully formed fruits.] is forbidden for all of these. Rebbi Yose said, one may plant an ‘orlah shoot but not an ‘orlah nut because the latter is a fruit. Also, one does not graft with spathe [Definition of Maimonides; Arabic טַלע. Arukh and Rashi, based on Gaonic sources, define as “dates that never ripen.” I. Löw (followed by S. Lieberman) takes it as the male flower which from an ‘orlah date palm may not be taken to hang into the branches of a female tree.] of ‘orlah.
HALAKHAH: “Leaves and shoots.” Our Mishnah does not follow Rebbi Eliezer, as was stated [Nazir 6:1 (fol. 54d), 6:2 (fol. 55a); Babli Nazir 34b.] in the name of Rebbi Eliezer: (Num. 6:4) “Anything made from the wine-vine, from seeds to skin he shall not eat,” that includes leaves and shoots.
It was stated [Nazir 6:2, fol. 55a. There, the text reads “Rebbi Yose says the flower is forbidden for the nazir because it is a fruit.” The discussion presupposes this text; the question is whether the Mishnah has to be interpreted in the light of the baraita or whether R. Yose also forbids ‘orlah flower and requires redemption in the forth year.] : “Rebbi Yose says the flower is forbidden because it is a fruit.” It is difficult! If it is forbidden for the nazir why a fruit [Since the rules for ‘orlah and the fourth year explicitly refer to fruits, if a flower is counted as a fruit automatically it would be subject to ‘orlah and the Fourth Year. If R. Yose restricts the prohibition of vine flowers to the nazir he must hold with R. Eliezer.] ? If it is a fruit it should be forbidden for everybody! The word of Rebbi Isaac implies that it is forbidden for everybody. Rebbi Isaac asked: Who stated [Mishnah 9.] “one does not graft with spathe [Definition of Maimonides; Arabic טַלע. Arukh and Rashi, based on Gaonic sources, define as “dates that never ripen.” I. Löw (followed by S. Lieberman) takes it as the male flower which from an ‘orlah date palm may not be taken to hang into the branches of a female tree.] of ‘orlah”? Rebbi Yose!
It was stated [Lev. 19:24 declares all fourth-year fruit holy; implying that it must be redeemed. The next verse notes that the rules for the first four years were given so the tree should increase its yield starting from the fifth year. The word yield is taken in Sifra Qedošim Paraša 3(10) to mean that the duty of redemption in the fourth year starts at the point in the ripening of the fruit at which in the fifth year the duty of tithing starts (Ma‘serot 1:2); in the case of grapes if there is some sap in the fruit. The two sources seem to contradict one another but Maimonides (Ma‘aser Šeni 9:2) adopts both of them.] : You redeem fruit; you do not redeem either unripe grapes or unripe figs. Rebbi Zavida instructed about unripe dates that they should be buried [He holds that they cannot be eaten since they cannot be redeemed; they have to be treated like a firstling which died before it could be sacrificed.] . Rebbi Jonah asked: If he transgressed and redeemed them, is it not redeemed? And you want to say, it needs to be buried!
[The parallel, references switched from there to here, is in Ševi‘it 7:7, Notes 102–113.] Rebbi Pedat, Rebbi Assi, in the name of Rebbi Joḥanan: Rebbi Simeon follows that of Rebbi Joshua, as we have stated there [Neither the meaning nor the etymology of this word are known as will be clear from the Halakhah. In the opinion of Arukh, the word designates the edible young shoots of the vine; this follows the Gaonic commentary of R. Nathan Av Hayeshivah who reads קנוקלות, or the reading of Or Zarua קנוקנות, “hairline sinews” (Babli Ḥulin 92b). This explanation is incompatible with the Yerushalmi. In the opinion of S. Krauss, the word is an expansion of עקל to which compare Arabic עקּל “to produce grapes”. The text of Sifra [Qedošim Parasha 3(3)] את ענקוקלות והבוסר also shows that ענקוקלות are misdeveloped grapes.] : “Rebbi Simeon says, balsamum is not subject to the Sabbatical because it is not a fruit.” Rebbi Zeïra said to Rebbi Pedat, since we say there that practice follows Rebbi Joshua, would you have to say here that practice follows Rebbi Simeon? Rebbi Jonah said, are the situations similar? It is the other way: Balsamum is essentially sap, a tree is not essentially in its sap. The holiness of the Sabbatical falls on animal feed, but the holiness of orlah never falls on it. Rebbi Abun said, there is another [difference]: Rebbi Joshua quoted it as a tradition, Rebbi Simeon said it in his own name. Sap may be fruit, unripe fruits may be fruit. If you say that sap has the status of fruit, if he did it with heave it is permitted. If you say that unripe fruits are fruit, if he did it with heave it is permitted. Why? Because usufruct of heave is permitted but usufruct of orlah is forbidden.
“Anqoqlot and the grape skins.” Rebbi Zeïra and one of the rabbis in the name of Rav: Grapes which went bad before they were one-third ripe. Rebbi Yose ben Rebbi Abun said, even after they were one-third ripe [In contrast to בוסר, “unripe grape berry”, these were spoiled before ripening.] . Rebbi Ḥiyya bar Ada said, it is a stenographic expression: “Grapes becoming bad at a third [He must read ענקולות: עֲ֗נָ֗בִין דְּלָקֵ֗י תַלְ֗תֵּ֗יהוֹן but there are no Mishnah mss. to back this up.] .”
“Rebbi Yose said, one may not [This contradicts the Mishnah; the word is not in the Rome ms. However, the formulation of R. Joḥanan’s statement presupposes this reading; following the text of the Mishnah one would expect: “If one planted, it is permitted; if he transgressed and grafted it is forbidden.” The Babli (Avodah Zarah 48b) disagrees: “Rav Jehudah said, Rav said that R. Yose agrees that if one planted, grafted, or sank, it is permitted.” According to Rashi, that statement refers to both shoot and nut, according to Maimonides (Ma‘aser Seni 10:20) only to planting a nut. There is a disagreement in principle between Babli and Yerushalmi. The Babli holds that any growth caused by the common action of a forbidden (‘orlah) and a permitted (the ground or the stem of an older tree) factor is automatically permitted (זו וזו גורם מותר). The Yerushalmi accepts this only if no one factor alone could have caused the result; cf. Chapter 2, Note 126.] plant a shoot.” Rebbi Joḥanan said, if one transgressed and planted, it is permitted; if he transgressed and grafted it is forbidden [It is not clear whether this is a biblical or a rabbinic prohibition.] .
[This paragraph (without mentioning the walnut) and the next are also in Avodah Zarah 3:6 (fol. 43a).] An ‘orlah walnut which one planted, and similarly, an egg of idol worship which turned into a chick. Rebbi Ḥaggai in the name of Rebbi Josia: Ḥizqiah and Cahana differ. Cahana said it is permitted, Ḥizqiah said it is forbidden. In the opinion of Ḥizqiah it should be impossible for an egg of idol worship to become a chick. What is this about? If someone squashed it [Used the egg as a pagan sacrifice. The use of the egg as a pagan symbol was studied by J. J. Bachofen, Versuch über die Gräbersymbolik der Alten, Gesammelte Werke Bd. 4, Basel 1954.] , there is no chick. If he brought it inside the lattice enclosure [Latin cancelli; the fence outside the pagan temple.] , come and look: If he worshipped it it is not forbidden [It is Ḥizqiah’s own opinion in Avodah Zarah 3:6 (fol. 43a) that nothing becomes forbidden because of idol worship unless something was done with it. R. Joḥanan disagrees; for him an egg introduced into a pagan temple becomes forbidden.] ; because he brought it inside the grating should it be forbidden? Rebbi Yudan the father of Rebbi Mattaniah said, explain it if he used it to fence in the idol [There was a hole in the wall which was closed by putting an egg into the hole.] .
If an egg dedicated to the Temple became a chick. Rebbi Assi said, Cahana and Rebbi Joḥanan disagree about this. Cahana said it is forbidden and Rebbi Joḥanan said it is permitted. Rebbi Zeïra said to Rebbi Assi, since Rebbi Joḥanan said it is permitted, does he redeem [The Rome ms. and the text in Avodah Zarah read: does he not redeem it? Since this is a question, there is no material difference. One does not sow an egg; the reference is to Mishnah Terumot 9:4 which states that growth from dedicated grain is profane but nevertheless it has to be redeemed but only for the value of the seed grain used, not of the harvest. The question then is whether R. Joḥanan holds that the chick, being different from the egg, is purely profane and needs no redemption or, while being profane, needs redemption for the value of the egg.] it as from the time it is sown? Rebbi Hanania [Reading of the text in Avodah Zarah. The reading here, R. Ḥanina, is impossible for chronological reasons.] and Rebbi Jonah, Rebbi Eleazar in the name of Cahana: He redeems it as from the time it is sown. Rebbi Ḥanania in the name of Rebbi Phineas corrects it: Cahana said it is forbidden and he redeems it as it is now; Rebbi Joḥanan said it is permitted and he redeems it as from the time it is sown.