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Kosher Consumer Misconsumptions
A Halachic Exercise In Self-Control
Rabbi Tzvi Rosen, Star-K Kashrus Administrator; Editor, Kashrus Kurrents


SCENE 1: You are hungry. You desperately need something to hit the spot. Suddenly, your friend offers you a delicious chocolate frosted cupcake, complete with sprinkles. Your mouth begins to water.  You are just about to take that first irresistible bite when your inner voice raises the age-old query, "How do you know if it is kosher?"  Your ecstasy is short-lived.  Your hand pulls back and you put the cupcake down. You exercised self-control.  You are still hungry, but you passed the test.

SCENE 2:  Chava was hungry. Suddenly, someone offered her a delicious fruit.  It was beautiful.  It was tempting.  It was irresistible.  It was from the Eitz Hadaas.  She wished she was still hungry, but she failed the test.  If only she would have exercised self-control.

The Midrash1 cites R' Yehuda ben Pazi. who draws a marked distinction between Adam, Chava and the behavior of Bnei Yisroel.  Adam and Chava's impetuousness deterred them from heeding Hashem's command for even one hour. while we have the wherewithal to exercise self-control and resist eating the "fruits of our labor" for three years!
The Torah2 commands us to wait for three years before partaking of fruit bearing trees. The forbidden fruit of this period is known as orlah.

Included in the prohibition of orlah is the fruit and all its parts.  This would include the seeds, peel, skin and outer protective shell of the fruit.  Leaves, vines, roots and stalks, even though they may be edible, are not included in the prohibition of orlah.  Sugar cane and hearts of palm are good examples of edible stalks. Since they are not fruits, they would not be subject to the prohibition3 of orlah.

The Torah states that fruit that grows within the first three years shall not be eaten.  When do we start the three-year count?  Interestingly, the three-year count is flexible, depending upon the time the tree is planted.  All trees begin their annual count from Rosh Hashana.  According to the halacha, if a tree was planted 45 days prior to Rosh Hashana, i.e., the 15th day of Av, the young sapling enters its second year of the orlah count in six weeks.4  However, if a tree was planted 44 days before Rosh Hashana, one would have to wait an additional year before eating its fruits.  Fruit that ripens after the Tu B'Shvat following the third year are permitted.

What is a fruit?  Technically, "fruit" is defined as the "edible seed bearing structure of a plant". This definition includes melons, berries, and tropical fruits such as bananas, as well as other popular fruits. Horticulturists define fruits as "the edible food of a woody perennial".  A perennial is a plant that lives for two or more years.  An annual is a plant that dies or degenerates after one year.  The Shulchan Aruch and horticulturists consider the fruit of an annual to be a vegetable.  A banana is a perfect example of a tropical fruit that grows on an annual plant.  After one season, the banana bush dies and a new shoot grows in its place. Hence, the banana is halachically considered a vegetable and the bracha, the blessing, recited is borei pri hoadama. 5

However, the halacha is even more exacting with its definition of a fruit tree as it applies to orlah.  If a tree would not produce fruit for three years, or if a fruit is produced less than a year from the time of its planting, that fruit would not be subject to the laws of orlah.

This point was illustrated more than 500 years ago when the rabbis of Tzfat were asked whether the "bendingen," more popularly known as "chatzilim" in Israel or eggplant in the United States, is subject to orlah.  The fruit of the bendingen is borne within one year of the tree's planting.  Subsequently, the quality of the bendingen diminishes in the second season of growth, while the third season produces fruit of a poor quality.  Should bendingen be subject to the laws of orlah, or not?  It was decided by the great rabbis of Tzfat that since the tree bore fruit so quickly and the quality diminished rapidly, the eggplant is considered to be a vegetable.
Furthermore, the Birkei Yosef records this query as it was posed to R' Yosef Karo zt''l, the author of the Shulchan Aruch.  His answer was as follows:  "The Holy Ari z''l ate bendingen, so it must be kosher!" Obviously, the Bais Yosef concluded that "bendingen" is not subject to orlah.6

In a recent responsa, a similar question was posed about the orlah status of a papaya. The Gaon, R' Shmuel Garmizon, and the Mahari Chalevo site a Tosefta that states that if a tree bears fruit within the first year of its planting, then that fruit is halachically considered a vegetable.  Papaya can be harvested within eight to ten months of its planting.  Since the papaya tree bears fruit so quickly, as in the case with eggplant, the papaya is considered a vegetable; the blessing recited over papaya is borei pri hoadama, and it is not subject to orlah.7 8  The Rav Pe’alim also notes that since the papaya tree is hollow, the brocha recited over papayas should be Ha’Adama.  The Kaf HaChaim, Rav Ovadia Yosef, Rav Mordechai Eliyahu, Mekor HaBracha, VeTein Bracha, and Pischei Halacha all concur with the Teshuvos Rav Pe’alim’s decision.9

Fruits do not have to grow on a woody tree in order to be subject to the laws of orlah.  Grapes are a classic example of a fruit which grows on a vine and is subject to orlah.  Kiwi is a fruit that is a relative newcomer to the shores of the United States.  Is kiwi fruit subject to orlah? Kiwi grows primarily in New Zealand, Chile and Italy; it was cultivated in the United States 40 years ago.  The kiwi fruit grows on vines, similar to grapes.  The vines are perennial and would be a candidate for orlah.  However, since the kiwi plant requires three to five years before it matures and bears fruit, orlah is generally not a problem.

Where does orlah apply?  The Torah clearly states that the mitzva of orlah applied upon entering Eretz Yisroel - "Ki savo el haaretz.M'doreisa, according to Torah law, orlah applies only to fruit grown in Eretz Yisroel.  However, our rabbis teach us that the laws of orlah are not unique to fruit grown in Israel and the mitzva is observed in the Diaspora, as well!  There is a fundamental difference concerning orlah vis-à-vis fruit grown in Israel and fruit grown in the Diaspora.  In Israel, orlah fruit is prohibited m'doreisa. Fruit grown outside of Israel is forbidden to us as halacha l'Moshe m'Sinai, Divine tradition.  If we have a question concerning whether or not a specific fruit grew within the first three years of planting, sofek orlah, the halacha is as follows:  Fruit grown in Israel is considered orlah fruit and is prohibited;10 fruit11 12  grown outside of Israel is permitted. Today in Israel, fruit charts containing specific orlah information are distributed to help consumers identify orlah concerns.13

How does orlah apply to grafting?  It is a known fact that trees, branches and root stock are commonly grafted.  Grafting increases the productivity of fruit trees and helps repair damaged plants.  It may also be used to cultivate or reproduce a unique fruit characteristic that develops, such as an unexpected variety that appears, e.g., Granny Smith apples or seedless fruits.  Grafting is typically used to speed or direct a tree's growth, as well as further produce the unique variety.  There are three popular methods of grafting: whip, cleft, and bark grafting.

All three methods incorporate a scion, the bud or branch to be grafted, which is connected to a rootstock. In whip grafting, the scion is connected to a branch of the fruit tree.  In cleft grating, the scion is connected directly into the root by carving a v-shaped opening in the root.  In bark grafting, the scion is placed under the bark.

The Shulchan Aruch clearly prohibits grafting two separate, unrelated species, e.g., an apple scion to a pear rootstock.  It is prohibited to graft a fruit bearing scion onto a non fruit-bearing stock.14  Renewing the orlah count depends upon the rootstock.  Grafting a similar stem to an existing rootstock is permissible, and the orlah count is not affected.15  When uprooting and replanting a rootstock to strengthen the tree or speed its growth, or when replanting a shoot which grows on its own,16 the orlah count begins once again.

At the conclusion of the orlah cycle, the fruits borne during the fourth year are vested with special sanctity and are known as neta revei’i.  Before eating these fruits, this sanctity has to be transferred onto a coin, similar to the procedure used in tithing ma'aser sheini.  Once the coin is vested with the sanctity of neta revei’i, the fruit may be eaten.  In the Diaspora, only grapes are imbued with this sanctity.  We hope this article gives the kosher consumer a greater appreciation of these mitzvos.

 




[1] Vayikra Rabbah 25

[2] Vayikra 19:23

[3] Yoreh Deah 294:2

[4]   The day of planting does not enter into the count.

[5] Orach Chaim 203:3

[6] Birchei Yosef, Yoreh Deah 294

[7] She’elos U’Teshuvos Yechaveh Da’as 4:52

[8] She’elos U’Teshuvos Rav Pe’alim She’ela 30 for additional reasons.

[9] For a more comprehensive treatment of the shaila, please refer to R’ Chaim Jachter’s Halacha Files, “The Appropriate Berachah for Papaya and Raspberries – Part Two,” 4 Adar 5766.

[10] Safek d’oraisa l’chumrah

[11] Safek orlah b’chutz la’aretz l’koleh u’mataros

[12] Yoreh Deah 294:8 & 9

[13] See related article, page 13

[14] Yoreh Deah 295:6

[15] Yoreh Deah 294:16

[16] ibid Orlah 25



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