By Rabbi Yaakov Schonberg
CUTTING DOWN FRUIT TREES
Bava Basra 26a relates that Rava, son of Rav Chanan, had date trees next to a vineyard of Rav Yosef. Birds used to roost in the palms and fly down and damage the vines of Rav Yosef. Rav Yosef told Rava: Go cut down the date trees…. Rava said, “I will not cut down the palms myself, for Rav has said: It is forbidden to cut down a palm that bears even just a kav of fruit (from 1.4 liters) per season. Furthermore, R’ Chanina has said: “My son Shikchas died prematurely for no reason other than that he cut down a fig tree before its time, when it was still capable of producing fruit. However, he added: “You, sir, can cut it down yourself if you want.” The mishna on Daf 25b taught that the prohibition against cutting down fruit trees does not apply to a tree that is a source of damage to others. Rav Yosef held that these birds were harming his vineyard by providing a perch for birds that would fly into the vineyard and damage the grapes. He therefore demanded that they be cut down. Rava was not fully convinced by Rav Yosef’s argument that damage can be attributed to the tree in which they perch, but he told Rav Yosef that if you are confident that you are right that the trees are a source of damage, you may cut them down yourself. Tosafos provides an alternative understanding. Rava maintained that the permit to cut such trees applies only if the damage they cause is greater than their own worth, which was not the case here.
DANGER TO LIFE
We touched on the Torah prohibition of not destroying fruit trees in our Daf Topic on Bava Kama 91b in connection with the subject of Bal Tashchis. Rambam (Melachim 6:8) rules that cutting down trees which damage neighbouring property is permitted because the Torah’s prohibition of not destroying trees, applies only to an act of destruction. Thus, the gemora there permits cutting down a tree whose wood is more valuable than its fruit, even when it poses no threat to the adjacent property. Rosh there takes this leniency a step further and permits removing fruit trees when they occupy space needed for other purposes. This is an extremely common question raised by people wanting to extend their premises over land containing a fruit tree, which needs to be removed. We shall see that although Rambam and Rosh would seem to indicate that uprooting would be permitted for a valid reason, poskim are reluctant to sanction its removal without certain safeguards. This is based on the danger to life mentioned in the above gemora and in matters of sekanah, poskim are reluctant to rule leniently. How can we understand this sekanah?
EXTENSIONS
Rabbi Yakov Emden (She’ilas Yaavetz-76) dealt with the problem of a shul extension that involved uprooting a fruit tree. He infers from our gemora, where Shikchas’s death is cited as the reason for Rava’s reluctance to remove the trees, that otherwise it would have been permitted. Furthermore, the fact that his untimely passing was attributed solely to this act indicates that he had no other faults to blame for his death. If it would have been forbidden to cut the tree, how could such a tzaddik have transgressed this issur? Evidently, it was halachically permitted but the gemora is teaching us that there is still an element of danger involved. R’ Emden therefore advises that despite the halachic permits, one should introduce safeguards such as having the removal done by a non-Jew. He adds that the issue can be avoided altogether by transplanting the tree elsewhere, as the life of the tree is preserved. Other poskim hold that whatever is permitted by halacha cannot be considered dangerous. Taz (YD116) follows Rosh that if one needs the place, he may cut down the tree, and permitted someone to build his house on land where there were fruit trees, without mention of any precautions. Binyan Tzion (1:61) also disagrees with the Yaavetz and rules that when circumstances permit building, such as for a mitzvah or a valid need, rather than just for added comfort, there is no issue of danger. However, he agrees that wherever it is possible to take steps to mitigate the destruction, such as by replanting, one must do so. This is also the ruling of Chassam Sofer (YD-102). Chida (Chaim Shoal 1:23) agrees with Binyan Tzion that there is no danger in cases permitted by halacha, but points to the will of R’ Yehuda Hachassid (45) forbidding cutting fruit trees. Chida argues that most of the restrictions in the will were permitted by halacha, yet the will indicates there is danger. He concludes one should ask a non-Jew to uproot the tree and replant it elsewhere. Thus, most poskim advise to transplant the tree or to have it removed by a non-Jew, but some poskim require one to sell the tree to the non-Jew first (Darkei Teshuva 116:51, Yabia Omer,YD1-9:6).
TREE SPADE
Yaavetz derived the concept of transplanting the tree from Hilchos Orlah, where the fruit of a newly planted tree is forbidden for three years. A tree that was transplanted to another location is considered to have been planted anew and the orlah count restarts. However, if there remains enough earth around the rootball that the tree could continue to survive with that earth, it is as if the tree was never uprooted, and the count does not restart. The problem is in defining what constitutes continuing to live and many larger trees will be very difficult to dig up. Chassam Sofer says that one can only transplant if there is a reasonable chance that the tree will survive the journey and continue to produce fruit. The root system can extend beyond the tree canopy, and it has two functions – they serve to anchor the tree to the ground, and they provide the tree with water and nutrients. The longer roots that secure the tree could be cut and the tree could then be stabilized when replanted with stakes. It is the clusters of fine fibrous roots which feed the tree which are essential for its survival and therefore the rootball should contain as many of those roots as possible. Today the digging and moving of trees is mechanized, using a hydraulic tree-spade. The spade encircles the tree and large blades are forced into the ground diagonally to form a root ball. Nurseries advise that the rootball be nine inches in diameter per inch of trunk diameter. Thus, a 6-inch diameter tree would require a 54-inch rootball to have a good chance of survival after replanting.
WHY DEATH?
We still need to understand why an act of cutting down a fruit tree should cause someone’s death – there is no death penalty for this transgression. The pasuk writes in connection with cutting trees when besieging a city כי האדם עץ השדה, for man is a tree of the field. Ibn Ezra explains that destroying a fruit tree is prohibited because this robs people of the source of their sustenance, which is akin to killing a human being. R’ Pinchas Halevi Horowitz (Panim Yafos, Devarim-20:19) explains that the deep connection between human life and fruit trees exists since Creation. Chazal teach that the taste of the wood of the original fruit tree should have been identical to its fruit, but the earth disobeyed and instead brought forth trees which produce fruit but were not food themselves. This deficiency in the tree trunk was echoed in Adam. Originally, mans body was meant to mirror his soul, and both would have been immortal. However, when the trees disobeyed the Divine decree, this resulted in the fact that man’s body, too, did not reflect the immortal nature of his soul. This in turn caused him to partake of the forbidden fruit, which brought about his body’s eventual demise.
ECLIPSES
Succah 29a teaches that when there is an eclipse, it is a bad sign for the whole world. It then says that on account of four things the luminaries become eclipsed, one of which is those who cut down good trees. Why should a naturally occurring phenomena be considered an ominous sign? Maharal (Be’er Hagolah-6) explains that Hashem created the world with predictable astronomical events. If man would have been on a level above sin, Hashem would have arranged Creation in such a way that the luminaries would never obstruct each other. But Adam did sin, and the nature of how food is produced was by the sweat of the brow. Original wheat grew as ready-to-eat fruit without any processing, but because man is on a level that he succumbs to sin, Hashem arranged the heavens in such a way that eclipses should occasionally occur to remind us that sinful man does not deserve the full radiance of the sun. This arrangement parallels Adam’s status after the sin, and thus too, the defect of fruit trees.
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