Commentary for Orlah 3:9

ספק ערלה – such as an idolater who has plants of Orlah in his garden, and in his hand are fruit and it is not known if they are of Orlah or something older (i.e., past the fourth year).

Introduction The final mishnah in tractate Orlah is concerned with the status of doubtful orlah and kilayim in the land of Israel and outside of it.

בארץ ישראל – that it is doubtfully from the Torah, for stringency.

Doubtful orlah: in the land of Israel is prohibited, in Syria is permitted, and outside the land one may go down and purchase [from a non-Israelite] as long as he has not seen him gathering it. If one has some produce and doesn’t know whether it is orlah or not, inside the land of Israel, where the prohibition of orlah is from the Torah (deoraita) the produce is prohibited. In Syria, where some of the agricultural laws apply and some don’t (see Demai 6:11; Sheviit 6:2) the produce is permitted. Outside the land of Israel, meaning outside Syria, the law is even more lenient. One may go into the field of a non-Jew and purchase from him produce that may be orlah, as long as the Jew does not see the non-Jew actually pluck the orlah fruit from the orlah tree. In such a case this would not be “doubtful orlah” but rather “certain orlah” which is prohibited derabanan even outside the land of Israel.

בסוריא מותר – because it is the conquest of an individual (i.e., David – and not a national conquest – so as to give the land the sacred character of the land of Israel – see Talmud Gittin 8b), and they were stringent with it somewhat.

A vineyard planted with vegetables [which are kilayim], and they [the vegetables] are sold outside of it: in the land of Israel these are prohibited, and in Syria they are permitted; outside the land one may go down and purchase them as long as he does not gather [them] with [one’s own] hand. The rules for kilayim are similar. The vegetables that are described here were possibly grown in a vineyard, because we know that the non-Jew has grown vegetables in his vineyard. However, they are not certain kilayim because they are being sold outside of the vineyard. Inside the land of Israel they are prohibited, because the prohibition of kilayim within Israel is deoraita and therefore we are strict even with doubtful kilayim. In Syria these vegetables are permitted. Outside of Israel one can go down to a vineyard and even see the non-Jew harvest these vegetables as long as he doesn’t gather them with his own hands. This law is even more lenient than the law concerning doubtful orlah, for here one can even see the non-Jew harvest the kilayim. Perhaps the reason that the law is more lenient is that the prohibition of kilayim outside of Israel is only an “enactment of the scribes” as we shall learn in section five.

ובחוצה לארץ יורד ולוקט – in the midst of the garden and he purchases from the idolater from that which he harvested already, just as long as he doesn’t see him harvesting.

New [produce] is prohibited by the Torah in all places. The end of this mishnah gives three different levels concerning the status of various prohibitions outside of the land of Israel. It is prohibited to eat new produce until the Omer (barley harvest) has begun to be offered on the second day of Pesah (see Hallah 1:1). This prohibition is “deoraita” even outside the land of Israel. This is indeed explicitly stated in Leviticus 23:13.

ובחו"ל יורד ולוקט – the idolater goes down and harvests in the presence of the Israelite, and the Israelite purchases it from him, as long is the Israelite does not harvest it by [his own] hand.

And orlah is a halachah. The prohibition of orlah is a “halakhah”. There are two opinions in the Talmud as to what this means. Some interpret it to mean “the halakhah/law of the land.” This would give it the status of a custom. Others interpret it to mean a “halakhah to Moses at Sinai.” This would give it the status of ancient oral law.

בכל מקום – and even in the Diaspora, as it is written (Leviticus 23:14 – though the text itself has a printing error in listing chapter 24): “You shall eat no bread or parched grain or fresh ears…in all your settlements.”

And kilayim are an enactment of the scribes. Finally, kilayim are prohibited outside the land of Israel by an enactment of the sages. This refers only to mixed seeds in the vineyard, from which it is even prohibited to derive benefit in the land of Israel. The law regarding different types of seeds that were planted together is more lenient in the land of Israel (one can eat such seeds, just not plant them) and therefore the law outside of Israel is more lenient as well. Yoking together two different types of animals (such as a donkey and an ox) and cross-breeding animals and trees is prohibited by the Torah in all places. For more information concerning kilayim look at my introduction to tractate Kilayim. Congratulations! It is a tradition at this point to thank God for helping us finish learn the tractate and to commit ourselves to going back and relearn it, so that we may not forget it and so that its lessons will stay with us for all of our lives. One of the aspects of Orlah that I found interesting was the chapter on forbidden mixtures. Many of our laws of kashrut stem from sources in this chapter and other places in Zeraim. Interestingly, there is far more information in tannaitic sources concerning prohibited agricultural produce such as orlah, kilayim and terumah then there is about prohibited animals and the prohibition of the mixture of milk and meat. When later rabbis (in the Talmudic and post-Talmudic periods) came to codify when something is not kosher (meaning it is either a mixture of milk and meat or stems from a prohibited animal) they often were forced to rely on sources that are from Seder Zeraim, and many from tractate Orlah. Thus this tractate is actually quite practical. Tomorrow we begin Tractate Bikkurim, the last tractate in Seder Zeraim.

והערלה הלכה – a usage dating from Moses as delivered from Sinai/a traditional interpretation of a written law, that it is forbidden outside the Land [of Israel] and nevertheless if there is a doubt [regarding it], it is permitted, for such was stated that a usage dating from Moses as delivered from Sinai, that a doubt regarding it will be permitted outside the Land [of Israel].

והכלאים מדברי סופרים – especially mixed seeds from the vineyard, since in the Land [of Israel] they are strict and prohibit [deriving from it] benefit from the Torah; outside the Land [of Israel], the Rabbis decreed regarding this. But mixed seeds that are in the Land [of Israel] they permitted in deriving benefit; outside the Land [of Israel] the Rabbis did not decree regarding them. But the grafting of the tree is forbidden outside the Land [of Israel] from the Torah, as it is written (Leviticus 19:19): “[You shall observe My laws.] You shall not let your cattle mate with a different kind; you shall not sow your field with two kinds of seed.” Just as your cattle with mating, so your seed with grafting; just as your cattle whether in the Land [of Israel] or outside the Land [of Israel], even your field with regard to grafting, whether in the Land [of Israel] or outside the Land [of Israel].