The prohibition and danger in destroying a fruit bearing tree-Part 1

The prohibition and danger involved in destroying a fruit bearing tree:[1]

The prohibition and danger: It is Biblically forbidden to unjustifiably destroy a [healthy] fruit bearing tree due to the prohibition of Bal Tashchis, as explained above.[2] Furthermore, in addition to the prohibition of Bal Tashchis associated with destroying a fruit bearing tree, there is likewise a danger involved in doing so.[3] [This prohibition due to Bal Tashchis, and danger, applies both in Eretz Yisrael and in the Diaspora.[4] Likewise, the prohibition applies to all trees, whether owned by a Jew, gentile or public property.[5]] This however is with exception to those cases that the prohibition of Bal Tashchis does not apply [as explained next], in which case the danger likewise does not exist.[6] [Some Poskim[7] however learn that some danger exists even in those cases in which the prohibition of Bal Tashchis does not apply. Some Poskim[8] 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[9] 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.[10]]

The justifiable reasons: Coming up in Part 2

 

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, even 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.]

Q&A

May one ask a gentile to cut down the fruit bearing tree?

In all cases that it is forbidden due to Bal Tashchis and Sakana for a Jew to cut it down, it is likewise forbidden to ask a gentile to cut it down.[11] 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.[12]

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[1] Admur Shemiras Guf Venefesh Bal Tashchis 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

[2] It is clearly evident from Admur ibid that cutting down a tree is Biblically forbidden due to Bal 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 Bal Tashchis [Taz Y.D. 116:6; The Poskim ibid question this ruling of the Taz; See Gilyon Maharasha ibid; Shivim Temarim ibid]

[3] 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

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

[5] Admur ibid Halacha 14 regarding Bal Tashchis; Sheilas Yaavetz 1:76

[6] 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; See also Michaber C.M. 155:26; Mishneh Bava Basra 27b regarding the allowance to cut the branches of a neighbors tree that is encroaching into one’s property, and interferes with one’s desired use, and no mention is made that by a fruit tree, one must beware due to the danger involved

Other opinions: See next!

[7] Sheilas Yaavetz 1:76, brought in Darkei Teshuvah 116:51, that so is intent of Sefer Chassidim; 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.

[8] 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

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

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

[11] 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 Gentile to perform on one’s behalf. [Poskim ibid; See Admur 243:1; 343:5; 450:20; Ribis 72; Sheila Usechirus 29; Michaber C.M. 338:6 [regarding muzzling animal]; Beis Shmuel E.H. 5:16; Beir Hagoleh; Shach Y.D. 141:17 and 23; Question brought in Bava Metzia 90a -see Biur Hagr”a 5:32]

[12] 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

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