1) THE EXEMPTION FROM MILITARY SERVICE FOR ONE WHO PLANTED AN ORCHARD
OPINIONS: The Mishnah states that a person who planted a vineyard but has not yet been Mechalel it returns from war upon the pronouncement of the Shotrim about those who are exempt from going to war. This exemption applies when he planted at least five grapevines, or five of any other type of tree. The Mishnah continues and states that one who planted a vineyard and was Mechalel it does not leave his home in the first place; he does not have to go and wait for the pronouncement of the Shotrim in order to return home.
What does the Mishnah mean when it says that he was not "Mechalel" the orchard? To what "Chilul" does the verse (Devarim 20:6) refer?
(a) RASHI here (and to Devarim 20:6; see RAMBAM, Hilchos Melachim 7:9) explains that "Chilul" means that the owner reaped the fruit of the fourth year ("Neta Reva'i") and he redeemed the fruit with money. He thereby rendered the fruit Chulin and permitted the consumption of the rest of the fruit which his field produces. He must bring the money of the Chilul to Yerushalayim and purchase food there with it, as the Torah requires. This is referred to as "Chilul Neta Reva'i."
It is not clear, according to Rashi, how much fruit the owner must be Mechalel in order to be exempt from going to war. Does it suffice to be Mechalel a single fruit, or must he be Mechalel fruit from at least five trees of the orchard, or from all of the trees of the orchard? Moreover, there is one opinion that maintains that only a grapevine is considered Neta Reva'i in its fourth year, while every other type of fruit tree may be eaten without Chilul starting in its fourth year (Berachos 35a). According to that opinion, when does the Torah's exemption from war for one who planted an orchard apply?
The answer to these questions may be inferred from the wording of the Rambam, who writes that the exemption applies "from when he begins to eat the fruit of his vineyard." These words imply that it should suffice to be Mechalel even one fruit, and, according to the opinion that all fruit trees other than grapevines are not obligated in Neta Reva'i, as soon as the first fruit becomes ripe the owner should be exempt from going to war.
The Mishnah implies that the exemption for a person who was Mechalel a vineyard extends for an entire year, like the exemption of one who has built a new house or married a new wife. The Rambam implies that the year starts from when the owner eats the first fruit of his orchard (in the fourth year). The logical basis for this is not clear, since trees usually produce fruit in one season, and thus the fruit will have been completely consumed by the end of the year. Why should fruit be compared to a house or a wife, with whom a person rejoices throughout the course of the entire year?
The answer is that a person's joy comes not from the specific fruit that he eats, but from the vine that was blessed with such fruits. The vine, like the house, remains to bring him joy for the whole year. The reason his joy begins from the time he eats the fruit is that it is at that time that he derives physical benefit from the vine, and thus at that time he expresses his joy and gratitude to Hash-m. However, he continues to rejoice and praise Hash-m for his vine for the entire year.
RASHI (DH v'Chen ha'Note'a) implies that the year does not start from the time of the Chilul, but from the fifteenth of Shevat ("Tu b'Shevat") of the fourth year after the trees were planted. Even if he was Mechalel the fruit in Nisan, his exemption extends only until the following Tu b'Shevat, because the person rejoices with his tree as long as the tree is in its fourth year.
(b) The RAMBAN and IBN EZRA (Devarim 20:6) suggest that the word "Chilelo" means that the owner of the orchard dances ("Mechol") and rejoices with flutes ("Chalilim") while he sings praises ("Hilulim") to Hash-m. The Ramban explains that when the tree begins to produce fruit in the fourth year, it is customary for the owner to rejoice over the success of his produce which Hash-m granted to him. Hence, the exemption applies to all trees, regardless of whether or not the Halachah of Neta Reva'i applies to them, and it starts from the time of Chanatah, when the year's yield becomes apparent. Perhaps the custom was to rejoice and dance for an entire year from the time that the fruits appeared.
2) THE EXEMPTION FROM MILITARY SERVICE FOR ONE WHO WAS "MAVRICH" OR "MARKIV"
QUESTIONS: The Mishnah teaches that even a person who is Mavrich or Markiv a tree is exempt from military service (that is, he goes to join, but upon the Kohen's pronouncement he returns home). The Gemara asks that a Beraisa derives from the words "v'Lo Chilelo" that one does not return from military service as a result of being Mavrich or Markiv a tree.
Rav Chisda answers that the Mishnah refers to one who was Mavrich or Markiv in a permissible manner; he returns from serving in the war. The Beraisa refers to one who was Mavrich or Markiv in a prohibited manner; he is not exempt from military service.
The Gemara later cites Rav Dimi in the name of Rebbi Yochanan who gives another answer. The Beraisa follows the view of Rebbi Eliezer ben Yakov, who understands the verse literally. "Asher Nata" refers to one who actually planted a vine and not to one who was Mavrich or Markiv it. The Mishnah, however, follows the view of the Rabanan who do not limit the verse to the literal meaning of "Nata."
The answer of Rav Dimi in the name of Rebbi Yochanan is difficult to understand. How is it possible that the Beraisa follows the opinion of Rebbi Eliezer ben Yakov? The Gemara says that Rebbi Eliezer ben Yakov excludes Mavrich and Markiv from the word "Nata," while the Beraisa excludes them from the word "Chilelo."
Moreover, the Mishnah which argues with Rebbi Eliezer ben Yakov also needs to explain what the word "Chilelo" excludes. Since the Mishnah does not accept Rebbi Eliezer ben Yakov's ruling, it is not excluding Mavrich and Markiv! What, then, does it exclude, if not one who was Mavrich or Markiv in a prohibited manner, as Rav Chisda explains. If Rav Chisda's distinction is clear according to the Mishnah, why does Rebbi Yochanan find it necessary to explain that the Beraisa means something else?
Finally, how does the phrase, "v'Lo Chilelo" ("he was not Mechalel it"), imply that one who was Mavrich or Markiv a tree is excluded from the exemption from army service? The exclusion (Mi'ut) seems to apply to a type of a Kerem, and not to a particular way (such as Mavrich or Markiv) that the Kerem was planted. (BE'ER SHEVA, KEREN ORAH, MELO HA'RO'IM)
(a) The KEREN ORAH explains that although Rebbi Eliezer ben Yakov reads the word "Kerem" literally to mean only a grapevine, nevertheless he does not translate the word "Nata" to limit it to planting as opposed to Mavrich or Markiv, unless he had a second verse to support that interpretation. This is why even Rebbi Eliezer ben Yakov needs the phrase "Chilelo" to exclude Mavrich and Markiv.
Why, though, is it only Rebbi Eliezer ben Yakov who explains the verse in this manner? Even according to the Rabanan who argue with Rebbi Eliezer ben Yakov and do not exclude Mavrich and Markiv from the word "Nata" alone, the word "Chilelo" should exclude them, as the Keren Orah says. Moreover, how does the word "Chilelo" imply that the tree must have been planted and cannot be a result of Mavrich or Markiv?
The TUREI EVEN (Rosh Hashanah 9b) explains the Gemara here like the Keren Orah and suggests the following answer to these questions. Although the verse says that one is exempt from war when he is Mechalel the fruit, which implies that the laws of Neta Reva'i apply to the fruit (see previous Insight), since the Rabanan who argue with Rebbi Eliezer ben Yakov do not impose limitations based on the literal meaning of the verse, they still exempt from war a person who planted a tree to which the Halachos of Neta Reva'i do not apply when it reaches its fourth year. Rebbi Eliezer ben Yakov, however, understands the verse literally, and therefore he exempts from war only a person who planted a tree that will actually be obligated in Neta Reva'i. When a person is Mavrich or Markiv a tree, it will not necessarily be obligated in Neta Reva'i (as will be explained below), and therefore the owner is not exempt from military service.
What is the case of Mavrich or Markiv which exempts a person from military service according to the Rabanan? The Gemara explains that the case is one in which a person plants an orchard for the wood that the plants produce, and then he is Mavrich or Markiv branches from that orchard onto a branch of another tree from which he plans to grow fruit. The branch is not subordinate (Batel) to the original plant because even the original plant can be subject to the laws of Orlah and Reva'i if the owner changes his mind about its purpose and decides to keep it for its fruit.
There is a rule that a plant is subject to the obligation of Reva'i only when the prohibition of Orlah applied to it prior to its fourth year. Hence, if -- by the fourth year -- the owner has not changed his mind about the purpose of the original plant, it stands to reason that when he decides to keep the plant for its fruit, it will not be obligated in Reva'i since the prohibition of Orlah did not apply to it during its first three years. Consequently, the branch that he was Mavrich or Markiv onto that plant should also be exempt from Reva'i, if he still intends to cultivate the plant for wood by the onset of the fourth year. Since the plant cannot become obligated in Reva'i, whatever one is Mavrich or Markiv onto it becomes Batel and also cannot become Reva'i. Therefore, a branch that one is Mavrich or Markiv is never guaranteed to be obligated in Reva'i and Chilul. According to Rebbi Eliezer ben Yakov, who says that only planting a tree which is obligated in Reva'i exempts one from military service, being Mavrich or Markiv a plant will not exempt one from military service. This is the manner in which Rebbi Eliezer ben Yakov derives from "Chilelo" that Mavrich and Markiv do not exempt one from military service.
The Keren Orah and Turei Even point out that according to their understanding, Rebbi Eliezer ben Yakov should rule that a fruit that was produced through Mavrich or Markiv is subject to the laws of Orlah, since the verse "v'Lo Chilelo" is written only with regard to the exemption from military service but not with regard to the laws of Orlah. However, the RAMBAN (Rosh Hashanah 9b) and the ROSH (Hilchos Orlah) write that Rebbi Eliezer ben Yakov exempts Mavrich and Markiv from Orlah and Reva'i as well, because the verse with regard to Orlah says "u'Netatem" -- "... and you plant any tree of edible fruit" (Vayikra 19:23).
(b) The BE'ER SHEVA and others ask another question on the answer of Rav Dimi in the name of Rebbi Yochanan. Why does the Beraisa not derive from "v'Lo Chilelo" that one is not exempt from military service if he is Mechalel a stolen vineyard (even if he indemnifies the owner). This case would be parallel to the way the Beraisa previously explained the verse of "v'Lo Chanacho" (Devarim 20:5). Why does the Beraisa propose an entirely different Derashah from "v'Lo Chilelo"? (Although the verse excludes a stolen house, it must also exclude a stolen vine, just as the verse must include a purchased vine once it includes a purchased house.)
According to the Gemara's first answer (Rav Chisda), the context of the Derashah from "v'Lo Chilelo" is very similar to the Derashah of "v'Lo Chanacho." Both Derashos exclude something that was acquired through prohibited means (theft or Kil'ayim). However, according to the second answer (Rav Dimi in the name of Rebbi Yochanan), the Beraisa should derive from "v'Lo Chilelo" that planting a stolen vine does not exempt one from military service, and not that Mavrich or Markiv in a permissible way does not exempt one from military service.
Therefore, it seems that according to the Gemara's second answer (Rav Dimi in the name of Rebbi Yochanan), the Beraisa indeed intends to exclude one who plants a stolen vine from the words "v'Lo Chilelo." When the Beraisa continues with the words, "... to exclude Mavrich and Markiv," it refers back to Rebbi Eliezer ben Yakov's statement ("k'Mashma'o") and means that the logic of Rebbi Eliezer ben Yakov also teaches that the word "Nata" excludes Mavrich and Markiv, as the Gemara says ("'Nata' k'Mashma'o").
Accordingly, Rebbi Eliezer ben Yakov indeed does not need "Chilelo" to exclude Mavrich or Markiv. (M. KORNFELD. The MINCHAS SOTAH presents a similar approach.)
3) THE OBLIGATION OF "ORLAH" OF LOW-GROWING TREES
QUESTION: Rebbi Eliezer ben Yakov rules that if a sapling does not reach the height of one Tefach, it is subject to the laws of Orlah mid'Rabanan for as long as it exists. He continues and says that this applies only when there are five such plants in one place, in the formation of rows of 2, 2, and 1. If, on the other hand, there is an entire orchard of such plants, everyone knows that the orchard was planted more than three years ago and that the plants are no longer Orlah.
Why does the Gemara say that the obligation of Orlah mid'Rabanan applies only when there are five such saplings? This implies that when there are less than five saplings in one place, the laws of Orlah mid'Rabanan do not apply. This is difficult to understand, because if there are less than five saplings, all the more so should the laws of Orlah mid'Rabanan apply.
(a) The RAMBAM (Hilchos Ma'aser Sheni 10:19), the RAMBAN (Rosh Hashanah 9b), and the TUR (YD 294) explain that this is indeed what the Gemara means. The Gemara means that even when there are five such plants, the laws of Orlah apply mid'Rabanan, and certainly the laws of Orlah apply mid'Rabanan when there are less than five plants.
However, this explanation is not consistent with the words of the Gemara. The Gemara does not include the word "even [when there are five saplings]." Also, according to this explanation, the Gemara should not omit the Halachah in the case of more than five trees. The Gemara skips from teaching the Halachah in the case of five trees to the Halachah in the case of an entire orchard. It should mention that "more than five trees" are not obligated in Orlah mid'Rabanan.
Moreover, what difference does the formation of the five saplings make? Since the Halachos of Orlah do not depend on the formation in which the trees were planted, why does the Gemara not say simply that the Rabanan instituted the laws of Orlah only when there are five such trees or less (regardless of the formation in which they are planted)?
Perhaps the answer is that the Gemara refers specifically to a low-growing grapevine. Since the laws of Kil'ayim apply to a grapevine planted in this formation (of 2, 2, and 1), such a formation may have its own "name" through which people remember when it was planted, like a large vineyard of low-growing vines. Rebbi Eliezer ben Yakov teaches that even when the vines are planted in such a formation, people do not remember that the vines are naturally low-growing; they remember only when a large vineyard of such vines was planted.
(b) RASHI explains that an orchard with less than five trees planted in this formation is not obligated in Orlah according to Rebbi Eliezer ben Yakov. Rebbi Eliezer ben Yakov follows the opinion in Berachos (35a) that maintains that the laws of Reva'i (and Orlah) apply only to a Kerem, a vineyard (five vines planted in the formation of 2, 2, and 1), but not to other types of fruit trees.
(The Gemara in Berachos cites two sources for the opinion that Reva'i applies only to a Kerem. One source is a Gezeirah Shavah from Kil'ayim. The other source is the word "Hilulim" (Vayikra 19:24), which implies that Reva'i applies only to the type of fruit over which Shirah ("Hilulim") is said (i.e. wine). The CHASAM SOFER (YD 285) cites the SHE'ILTOS (Parshas Kedoshim) who explains that according to the first source (which derives Reva'i from Kil'ayim), just as Kil'ayim applies only to a complete vineyard (of at least five plants in a formation of 2, 2, and 1) and not to a single grapevine, so, too, the laws of Reva'i apply only to a complete vineyard and not to a single grapevine.)
The RAMBAN (Rosh Hashanah 9b) asks that Rashi seems to ignore the words of the verse, "u'Netatem Kol Etz Ma'achal va'Araltem Orlaso Es Piryo" (Vayikra 19:23), which teaches that Orlah applies to all fruit trees. (The Ramban cites further proof from Berachos 35b that Orlah applies to all types of fruit trees.)
Perhaps Rashi does not mean that the opinion that Reva'i applies only to Kerem (vineyard) also maintains that Orlah, too, applies only to a Kerem. Rather, Rashi means that the opinion that Reva'i applies only to Kerem teaches two laws about Reva'i: the first law is that Reva'i applies only to a grapevine and not to other trees; the second law is that Reva'i applies only to an entire Kerem of grapevines (at least five grapevines in the formation of 2, 2, and 1) but not to a single grapevine. With regard to Orlah, the first law certainly does not apply, because the verse explicitly states that Orlah applies to all types of fruit trees. However, there is no reason to assume that the second law does not apply to Orlah, and therefore only five trees planted in the specific formation are obligated in Orlah according to this opinion.
(Although in the laws of Kil'ayim this formation has significance only with regard to a vineyard, nevertheless the Mishnah here teaches that this formation has significance even with regard to other types of trees, as Rashi writes in the Mishnah (DH Chamishah). It is possible that the other Rishonim disagree with Rashi and rule that five of any other type of tree exempt the owner from military service regardless of the formation in which they are planted.)
(c) The CHASAM SOFER (YD 285) suggests that Rashi does not mean that the laws of Orlah apply only to a Kerem. Rather, Rashi means that the Gemara's use of the word "Orlah" refers to what is normally called "Neta Reva'i" (as the word is used in Orlah 2:3) and it does not refer to actual Orlah. The laws of Orlah, however, apply to all trees, as the Ramban and other Rishonim maintain.
The reason why Rashi finds it necessary to explain that the Gemara refers to Neta Reva'i is that it is not logical to suggest that a low-growing vine would be confused with real Orlah fruits, since fruits that are actually Orlah are usually small and of low quality (see Ramban to Vayikra 19:23). Moreover, if the Gemara refers to actual Orlah, why does Rebbi Eliezer ben Yakov permit the vine to remain? Since its fruit may never be eaten, and it presumably does not provide much shade or wood, he should rule that the vine must be uprooted in order to prevent inadvertent transgression. (Perhaps Rashi also explains that the Gemara refers to Reva'i in order to answer why Rebbi Eliezer ben Yakov refers only to a formation of plants (2, 2, and 1) and not to a single plant.)
Therefore, the Chasam Sofer suggests that Rashi understands Rebbi Eliezer ben Yakov to mean that the fruit is not prohibited, since people will not confuse it with true Orlah. Rather, the fruit is considered Neta Reva'i and must be redeemed before being eaten every year.
(The wording of the Gemara, that the vine looks like a one-year-old vine, implies that Rebbi Eliezer ben Yakov refers to the Isur of Orlah and not to Reva'i.)