Destroying a fruit tree

Destroying a tree:[1]

Destroying a fruit bearing tree:[2]

The prohibition and danger: It is Biblically forbidden to unjustifiably destroy a [healthy] fruit bearing tree due to the prohibition of Baal Tashchis, as explained above.[3] Furthermore, in addition to the prohibition of Baal Tashchis associated with destroying a fruit bearing tree, there is likewise a danger involved in doing so.[4] [This prohibition due to Baal Tashchis, and danger, applies both in Eretz Yisrael and in the Diaspora.[5] Likewise, the prohibition applies to all trees, whether owned by a Jew, gentile or public property.[6]] This however is with exception to those cases that the prohibition of Baal Tashchis does not apply [explained next], in which case the danger likewise does not exist.[7] [Some Poskim[8] however learn that some danger exists even in those cases in which the prohibition of Baal Tashchis does not apply. Some Poskim[9] suggest that to avoid this danger even in the permitted cases, he is to ask a gentile to uproot the tree to avoid any possible danger. Other Poskim[10] add that to avoid this danger even in the permitted cases, one should sell his tree to a gentile through a Kinyan Kesef and Shtar, and then have the gentile uproot it. When the cutting of the tree is needed for a Mitzvah purpose, such as to expand a Shul, then even a Jew may cut it.[11]]

The permitted cases: [The following are the permitted cases in which the prohibition of Baal Tashchis and Sakana does not apply, although some rule that some level of danger still remains, as explained above:] It is permitted to destroy a fruit tree for a bodily or material benefit, as explained above. For example, if a fruit bearing tree weakens one’s land and damages other trees that are better than it, then it may be cut down. [Thus, if a tree is causing damage towards crops of greater importance, such as vines, it is permitted to cut down that tree.[12]] Likewise, if one needs the space of the fruit bearing tree in order to build there[13], or if one wants to cut it down because it darkens one’s window[14], then it is permitted to cut it down. [If, however, it suffices to cut off the branches that are darkening the window, rather than tear down the entire tree, then one must do so, and it is forbidden to cut down the entire tree.[15]] Likewise, if the tree’s [wood] can reap more money in use for building than it can reap in fruit production [then one may destroy it]. This ruling applies by all other cases of destruction [that one may do so for a positive purpose].[16] [Some Poskim[17] rule that in all cases of allowance, if one is able to uproot the entire tree with its soil and re-plant it elsewhere, then he is required to do so, rather than destroy the tree. In all the above cases of allowance, one must be certain that the benefit achieved through destroying the tree is greater than the loss of the tree. If one is in doubt, it is forbidden to do so.[18] ]

Destroying a tree that cannot bear fruit:[19]

It is permitted to cut down any tree which cannot bear fruit. One may cut it down for even no purpose at all.

Old fruit tree: Likewise, an old fruit tree which only bears a small amount of fruit and is thus no longer worth the trouble to care and garden it, it is permitted to cut it down [for even no need at all]. The same law applies to destroying all other items of similar scenarios [in which the item either serves no benefit or its benefit is so minimal that it is deemed worthless]. An olive tree which produces a ¼ of a Kav of olives, and a palm tree which produces a Kav of dates, are [considered useful fruit bearing trees and are hence] forbidden to be cut down.

 

 

Summary:
It is Biblically forbidden to destroy or damage a fruit bearing tree without justifiable reason, and doing so is considered a danger. [Even when a justifiable reason is applicable, some Poskim maintain that the danger still somewhat applies. To avoid this danger according to all, in the justifiable cases, one is to ask a gentile to cut the tree rather than have a Jew cut it down. If however one needs to cut if for the sake of a Mitzvah, then in the justifiable cases, one may have a Jew cut it down.] It is permitted to cut down a non-fruit bearing tree for even no reason at all.

The justifiable reasons: It is permitted to cut down a fruit bearing tree in any of the following cases:

1.       One needs the space of the tree for building purposes.

2.       The tree is blocking the sun from one’s window, [and it does not suffice to simply trim the branches].

3.       The wood of the tree is worth more than its fruit production.

*[In all cases of allowance, one is to initially have a gentile cut the tree to avoid all worries of danger, and if one is able to uproot the tree with its roots and soil, and replant elsewhere, then he is obligated to do so.]

 

Q&A

May one ask a gentile to cut down the fruit bearing tree?
In all cases that it is forbidden due to Baal Tashchis and Sakana for a Jew to cut it down, it is likewise forbidden to ask a gentile to cut it down.[20] However, in those cases that it is permitted to cut down the tree, and one simply suspects for the aspect of danger, then it is permitted to ask a gentile to cut it down.[21]

May one uproot a tree together with its roots/soil for the sake of replanting elsewhere?[22]
Some Poskim[23] rule it is permitted to uproot a tree together with its roots and soil with intent to replant elsewhere, even if there is no justifiable reason for doing so.[24] Other Poskim[25] however rule that one is never to uproot a tree, even with its soil with intent to replant elsewhere, unless one of the above justifiable reasons are applicable, such as one needs to use its space, in which case if one is able to uproot the tree with its soil one is required to do so, rather than destroy the tree. Practically, one may be lenient through a gentile.[26]

 

May one cut a branch off a fruit tree?[27]
Some Poskim[28] rule it is forbidden to break a branch off from a fruit bearing tree [without one of the above-mentioned justifiable reasons]. Other[29] Poskim however rule it is permitted to be done [in all cases].[30] Other Poskim[31] are lenient for the sake of a Mitzvah. Practically, one may be lenient for the sake of a Mitzvah through asking a gentile to cut it off.[32] [Thus, if one needs to cut branches for Sechach, ideally one should cut the branches of a non-fruit bearing tree. If this is not available, then he is to ask a gentile to cut the branches.]

Is a fruit tree that its fruit is not generally eaten by the populace considered a fruit tree in this regard?[33]
Yes. Thus, fruits that are not eaten due to infestation problems, or due to being of low quality, such as wild apples and pears, nevertheless contain the above-mentioned prohibition.

Is a tree that did not yet begin to produce fruit considered a fruit bearing tree?[34]
Yes.

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[1] Admur ibid Halacha 16-17

[2] Admur ibid Halacha 16-17; Bava Kama 91b-92a; Bava Basra 26a; Makos 22a; Pesachim 50b; Semak 229; Rambam Melachim 6/10; Tzava of Rav Yehuda Hachassid 45 and Sefer Chassidim 53; Taz Y.D. 116/6; Beir Heiytiv 116/8; Pischeiy Teshuvah 116/6; Taz ibid writes that this law is omitted in Tur and Shulchan Aruch, however see Tur Y.D. 349-350; C.M. 383; See also Avodas Hagershoni Y.D. 116 and Shvus Yaakov 1/159 who question this assertion of Taz; See Shivim Temarim 53

[3] It is clearly evident from Admur ibid that cutting down a tree is Biblically forbidden due to Baal Tashchis, and so is understood from Makos ibid  and so rules Sheilas Yaavetz 1/76; Gilyon Maharsha Y.D. 116; Rambam Sefer Hamitzvos ibid; Tosafus Bava Metzia 32b; See Shivim Temarim 53

Other opinions: Some Poskim imply that destroying fruit tree is only forbidden due to Sakana, and not due to Baal Tashchis [Taz Y.D. 116/6; The Poskim ibid question this ruling of the Taz; See Gilyon Maharasha ibid; Shivim Temarim ibid]

[4] Admur ibid Halacha 17; Taz ibid; Rav Chanina in Bava Basra 26a; See Shivim Temarim ibid; Sefer Chassidim ibid does not state why it is forbidden and makes no mention of danger

[5] Setimas Kol Haposkim; Shivim Temarim ibid p. 59 in his final conclusion, unlike his initial attempted understanding

[6] Admur ibid Halacha 14 regaridng Baal Tashchis; Sheilas Yaavetz 1/76

[7] Admur ibid Halacha 17; Binyan Tziyon 1/61; Avnei Tzedek Y.D. 42-2, brought in Darkei Teshuvah 116/51; Shivim Temarim ibid p. 60a that so is implied from Gemara and Poskim

Other opinions: See next!

[8] Sheilas Yaavetz 1/76, brought in Darkei Teshuvah 116/51, that so is intent of Sefer Chassiidm; Toras Chaim on Bava Basra ibid and so learns Makor Chesed 62 in Bava Basra ibid; Shivim Temarim ibid and Makor Chesed 62 that the novelty of the Sefer Chassidim ibid who recorded the prohibition of cutting a fruit tree, is to teach us that the danger applies even in the permitted cases; Shivim Temarim 53/17 that one does not see a Siman Bracha even in the permitted cases, and so is implied from Pesachim 50b; See Igros Kodesh 7/264 who hints to this ruling of Sakana even in the permitted cases, even though it is clear that according to Admur it is allowed. In that letter the Rebbe instructed the asker to be stringent [despite Admur’s leniency] being that in the past a negative occurrence happened to him as a result.

[9] Sheilas Yaavetz ibid; Shivim Temarim 53/16 that doing so avoids the leftover danger in the permitted cases, even according to Rebbe Yehuda Hachassid; Chaim Sheol 1/22 and Kaf Hachaim 116/84 that even in the permitted cases it is best to cut it through a gentile

[10] Beis Shlomo Y.D. 1/191; Zera Emes 2/53, brought in Darkei Teshuvah 116/51

[11] Sheilas Yaavetz 1/76; Ikarei Hadat Y.D. 14/2 and 8; Shivim Temarim 53/16

[12] Tzemach Tzedek chapter 41, brought in Pischeiy Teshuvah 116/6

[13] Admur ibid; Taz ibid; Rosh on Bava Kama 91b; Kneses Hagedola 116/31; Chaim Sheol 1/22; Chasam Sofer 102; Chochmas Adam 68/7; Bashamayim Rosh 334; Pischeiy Teshuvah ibid; Aruch Hashulchan 116/13; Kaf Hachaim 116/84

[14] Admur ibid; Chavos Yair 195; Lechem Hapanim 116/3; Beis Lechem Yehuda 116/4; Chaim Sheol 1/22; Kaf Hachaim 116/85

[15] Chavos Yair 195; Lechem Hapanim 116/3; Beis Lechem Yehuda 116/4; Chaim Sheol 1/22; Kaf Hachaim 116/85

[16] Admur ibid Halacha 16

[17] Chasam Sofer 102, brought in Pischeiy Teshuvah ibid

[18] Chasam Sofer ibid, brought in Pischeiy Teshuvah ibid

[19] Admur ibid Halacha 16; Rambam Melachim 6/9; Rabbeinu Yerucham 21; Bava Kama 91b; See Shivim Temarim 53/17

Other opinions: Some Poskim rule it is forbidden to cut down even a tree that does not bear fruit, for absolutely no need at all. [Kehilas Yaakov, brought in Darkei Teshuvah 116/51]

[20] Shivim Temarim 52/16; Poskim in Darkei Teshuvah 116/51

The reason: As throughout the entire Torah, whatever is forbidden to be performed by a Jew is forbidden to ask a Gnetile to perform on one’s behalf. [ibid]

[21] Shivim Temarim 52/16; See Shut Beshamayim Rosh 334, brought in Pischeiy Tesahuvah ibid, regarding if one needs the space of the tree that “Through a gentile one is not to be stringent at all”; Poskim in Darkei Teshuvah 116/51; Sheilas Yaavetz ibid; Chaim Sheol 1/22 and Kaf Hachaim 116/84 that even in the permitted cases it is best to cut it through a gentile

[22] See Pischeiy Teshuvah 116/6

[23] Sheilas Yaavetz 1/76, brought in Pischeiy Teshuvah ibid; Shvus Yaakov 1/159; Chaim Sheol 1/23; Kaf Hachaim 116/86

[24] The reason: As the prohibition only applies against destroying the tree and when one uproots a tree with its roots and soil, it is as if the tree is still planted in the ground, as is evident regarding the laws of Arla. [Yaavetz ibid]

[25] Chasam Sofer 102, brought in Pischeiy Teshuvah ibid

[26] Chaim Sheol ibid; Kaf hachaim ibid

[27] See Darkei Teshuvah 116/51; Piskeiy Teshuvos 629/12

[28] Beir Sheva, brought in Mishneh Lamelech Issurei Mizbeiach 7/3; Mahariy Besen 118; Beis Yitzchak 1/144

[29] Mishneh Lamelech Issurei Mizbeiach 7/3; Beis Yaakov 140, brought in Darkei Teshuvah 116/51; Sheilas Yaavetz 1/76

[30] The reaosb: As the prohibition only applies to destroying the entire tree. [ibid]

[31] Divrei Chaim Y.D. 2/59; Beis Yitzchak ibid; Dovev Meisharim 1/134; Har Tzevi 2/102

[32] Har Tzevi 2/101-102; Teshuvos Vehanhagos 1/376; Piskeiy Teshuvos 629/12

[33] Neta Shoreik 42 and Avnei Tzedek 42-2, brought in Darkei Teshuvah 116/51

[34] Erech Shaiy, brought in Darkei Teshuvah 116/51

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