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Rosh Kollel: Rabbi Mordecai Kornfeld

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ROSH HASHANAH 10 (Lag b'Omer) - (18 Iyar, Lag b'Omer) - dedicated by Avi and Lily Berger of Queens, N.Y., in memory of Lily's father, Mr. Benny Krieger (Chananel Benayahu ben Harav Yisrael Avraham Aba), zt"l, who passed away on Lag ba'Omer 5763. Mr. Krieger exemplified Ahavas Chesed, Ahavas Torah and Ahavas Eretz Yisrael.

1) COUNTING THE YEARS OF A TREE

OPINIONS: The Beraisa (9b) states that a tree planted more than thirty days before Rosh Hashanah is considered to be one year old when Rosh Hashanah arrives. With regard to the age of the tree for matters of Orlah and Reva'i, those thirty days before Rosh Hashanah count as one year. When the following Rosh Hashanah arrives (the second Rosh Hashanah from the time the tree was planted), the tree is considered two years old, and upon the arrival of the third Rosh Hashanah, three years old.

However, the fruit of the tree remains Orlah (fruit that grew within the first three years of the tree's life) until the fifteenth of Shevat ("Tu b'Shevat") after the third Rosh Hashanah. Similarly, although the tree is considered to have completed four years of growth upon the arrival of the fourth Rosh Hashanah, its fruit remains Reva'i (fruit of the fourth year) until the Tu b'Shevat after the fourth Rosh Hashanah, as the Gemara derives from verses.

The Rishonim dispute under which conditions the year is extended until Tu b'Shevat (see Chart).

(a) RASHI (DH Peros) concludes that when one plants a tree more than thirty days before Rosh Hashanah, the fruit becomes permitted seven and a half months before a full three years have passed. They become permitted from Tu b'Shevat of the third year (after the third Rosh Hashanah), instead of from the fourth Rosh Hashanah. Conversely, when one plants a tree within thirty days of Rosh Hashanah, the fruit of that tree remains Orlah for more than four full years, until the fourth Rosh Hashanah.

It is unclear why Rashi says that one gains only the time between Tu b'Shevat and Rosh Hashanah (seven and a half months). Logically, one should gain an entire year -- from Tu b'Shevat of the third year to Tu b'Shevat of the fourth year. If one plants early enough, he should gain a year by not having to wait until the Tu b'Shevat after the fourth Rosh Hashanah.

The ROSH (Hilchos Orlah #9, printed in the end of Maseches Menachos) explains that Rashi bases his opinion on an inference from the Gemara which says that "the fruits of this sapling are prohibited until Tu b'Shevat." This implies that only for this tree -- which was planted more than thirty days before Rosh Hashanah -- does the third year end at Tu b'Shevat. When one planted a tree within thirty days before Rosh Hashanah, he must wait three years until the fourth Rosh Hashanah (the passage of the first Rosh Hashanah does not count as one year since the tree was planted less than thirty days before that Rosh Hashanah), but he does not have to wait until Tu b'Shevat after the fourth Rosh Hashanah.

Furthermore, Rashi may have been bothered by the next statement of the Gemara which says that "sometimes the fourth year arrives and the fruits are still prohibited because of Orlah, and sometimes the fifth year arrives and the fruits are still Reva'i." If every fruit tree must wait until Tu b'Shevat regardless of when it was planted, then the fruit of all trees are prohibited when the fourth year arrives and not just "sometimes."

Therefore, Rashi concludes that only fruits of a tree planted more than thirty days before Rosh Hashanah are prohibited until Tu b'Shevat. If a tree was planted within thirty days before Rosh Hashanah (and thus the first year is not completed until the following Rosh Hashanah), it is not necessary to wait until Tu b'Shevat of the fourth year for the fruits to become permitted.

This is also the opinion of RABEINU SHMUEL BAR DAVID cited by the SHITAS RIVAV on the Rif. The Shitas Rivav proposes a logical explanation for the difference between a tree planted more than thirty days before Rosh Hashanah and a tree planted within thirty days. He says that when one plants a tree within thirty days before Rosh Hashanah, although the period of time before Rosh Hashanah does not count as one year for the tree (because it is comprised of less than thirty days), the period of time that passes from its planting until the first Tu b'Shevat does count as a year (since it is more than thirty days) as far as the mature, three-year-old tree is concerned. By the time the third Tu b'Shevat arrives (which is before the fourth Rosh Hashanah, see timeline in Chart), the tree has already passed three full years as far as Orlah and Reva'i are concerned. One merely needs to wait until Rosh Hashanah after the third Tu b'Shevat in order to eat the fruits (since the tree must wait for both the Rosh Hashanah of trees (15 Shevat) and the Rosh Hashanah of plants (1 Tishrei) to pass). After three Tu b'Shevats and three Rosh Hashanahs have passed, the fruit is permitted.

According to this logic, if one plants a tree any time between Rosh Hashanah and [30 days before] Tu b'Shevat, one does not need to wait until the Tu b'Shevat after the third Rosh Hashanah. The fruit is no longer Orlah when the third Rosh Hashanah arrives (because three Tu b'Shevats have passed).

(b) The RAMBAM (Hilchos Ma'aser Sheni 9:11-12) rules like Rashi, that one needs to wait only until Tu b'Shevat if he planted the tree more than thirty days before Rosh Hashanah. If he planted it less than thirty days before Rosh Hashanah, then the third year ends on Rosh Hashanah (i.e., the fourth Rosh Hashanah that passes from the time he planted the tree), and it is not necessary to wait until the following Tu b'Shevat.

The Rambam adds, however, that if one planted a tree any time between Rosh Hashanah and Tu b'Shevat, he must wait three years to the day ("mi'Yom l'Yom") in order for the fruit to be permitted (in contrast to waiting only until the third Rosh Hashanah, as Rashi maintains). This opinion is mentioned independently by the ME'IRI (except that he maintains that even if the tree is planted during the thirty days before Rosh Hashanah, one must wait only three years to the day and not until Rosh Hashanah).

The logic of this ruling may be as follows. The Rambam maintains that the fruit is no longer considered Orlah if, after the third Rosh Hashanah has passed, either the tree completes the third year of its life or Tu b'Shevat passes. Either event can be considered the completion of a year. (Three Rosh Hashanahs must pass first, since the year of a sapling (with regard to Orlah) as opposed to the year of a tree (with regard to Reva'i) is measured by three Rosh Hashanahs, as Rashi explains.) When one plants a tree after Tu b'Shevat and before Rosh Hashanah (at least thirty days before Rosh Hashanah), after three Rosh Hashanahs have passed the first of the two dates to arrive is Tu b'Shevat, which arrives before three complete years pass. In such a case, the Halachah is lenient and the fruit is permitted from that Tu b'Shevat. When one plants a tree after Rosh Hashanah and before Tu b'Shevat, after three Rosh Hashanahs have passed the first date to arrive is the third-year mark (the anniversary date of the tree's planting), before Tu b'Shevat. Since three full years "mi'Yom l'Yom" pass before the arrival of Tu b'Shevat of the third year, the fruit becomes permitted and one need not wait until Tu b'Shevat.

In addition, the Rambam implies that when one plants the tree within thirty days of Rosh Hashanah, it is not enough to wait three years "mi'Yom l'Yom." The passage of the first Rosh Hashanah does not count (because thirty days have not passed), and one must wait until the fourth Rosh Hashanah, which is a few days after three years "mi'Yom l'Yom." At that point, the tree has already attained three years "mi'Yom l'Yom" and therefore it is no longer Orlah. (The Me'iri does not add this condition.)

(c) The RA'AVAD (Hilchos Ma'aser Sheni 9:11) also maintains that it is not necessary to wait until the Tu b'Shevat after the fourth Rosh Hashanah, when one does not rely on a partial year to be considered as a full year at the beginning of the three-year period. However, he proposes a different line of reasoning. He says that when one relies on the leniency of considering a partial year as a full year, he must add extra days at the end of the three-year period and wait until Tu b'Shevat (which is the Gezeiras ha'Kasuv which the Gemara mentions). This Gezeiras ha'Kasuv does not apply if one relies on a full year as the first year. Thus, if he plants the tree less than thirty days before Rosh Hashanah, then since he waits three full years (until the fourth Rosh Hashanah) he does not have to wait until the Tu b'Shevat after the fourth Rosh Hashanah.

In practice, this opinion differs from that of Rashi and the Rambam with regard to trees planted between Rosh Hashanah and Tu b'Shevat. Rashi maintains that such trees do not have to wait until the Tu b'Shevat after the third Rosh Hashanah, because by the third Rosh Hashanah three Tu b'Shevats have also passed. The Rambam also maintains that such trees do not have to wait until the Tu b'Shevat after the third Rosh Hashanah, because one follows the date of the three-year mark "mi'Yom l'Yom" (which occurs after the third Rosh Hashanah, before Tu b'Shevat). The Ra'avad, in contrast, rules that one must wait until the following Tu b'Shevat (after the third Rosh Hashanah). He maintains that when, at the beginning of the three-year period, one counts -- as one year -- a time period which is even one day less than a year, he must wait until Tu b'Shevat of the fourth year for the fruit to be Reva'i. The RITVA also cites such an opinion.

(d) The BA'AL HA'ME'OR, RASHBA, and RITVA argue with the Ra'avad. They assert that there is no logical basis to limit the Gezeiras ha'Kasuv (which teaches that fruits are sometimes Orlah even into the fourth year) to plants which had only a partial year as their first year, because the verse says nothing about a partial year. Rather, they maintain that the Rosh Hashanah for Orlah and Reva'i is always Tu b'Shevat regardless of when the tree was planted. Three years (for Orlah) and four years (for Reva'i) are considered complete only when Tu b'Shevat arrives.

How do these Rishonim explain the inferences of Rashi (see (a) above) that there are some trees whose years do not depend on Tu b'Shevat?

According to these Rishonim, when the Gemara says that "the fruits of this sapling are prohibited until Tu b'Shevat," it does not mean to imply that there are fruits of other trees that become permitted before Tu b'Shevat. Rather, it means that even though one month can be considered like a full year, nevertheless the Halachah is stringent with regard to the tree's fourth year. It remains Orlah until Tu b'Shevat after the third Rosh Hashanah. The Gemara means to emphasize that even this sapling is prohibited until Tu b'Shevat, even though it is technically more than three years old. (ROSH ibid.; see also Ba'al ha'Me'or and Rishonim.)

Similarly, when the Gemara says that "sometimes" a tree remains Orlah into the fourth year until Tu b'Shevat, it does not mean to imply that sometimes it is permitted at the beginning of the fourth year (at Rosh Hashanah). Rather, the Gemara says "sometimes" only because most trees do not bear fruit before Tu b'Shevat. Therefore, in practice, the tree will not actually bear Orlah fruit in its fourth year. Whenever a tree does bear fruit before Tu b'Shevat, that fruit will be prohibited until Tu b'Shevat arrives.

It is interesting to note that the words of Rashi printed with the Rif, as well as the way the Ran quotes Rashi's comments on this topic, deviate somewhat from the text of Rashi printed in the Gemara. The Ran's version omits the phrase (at the end of DH u'Peiros) that when the tree is planted more than thirty days before Rosh Hashanah one gains the fruit grown "from Tu b'Shevat until Rosh Hashanah." Accordingly, one cannot infer from Rashi's words that the need to wait until Tu b'Shevat applies only when the tree was planted less than thirty days before Rosh Hashanah. Rashi may rule like the other Rishonim who maintain that one must always wait until Tu b'Shevat. Indeed, even Rashi in the Gemara (DH Peiros and DH Pe'amim) clearly explains the words "this" and "sometimes" (which were the sources for the first three opinions cited above) the same way as the Ba'al ha'Me'or and others explain them. (Perhaps there was a second version of Rashi's commentary in which Rashi retracted his first explanation, and a combination of both versions was printed in the Gemara.)

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