Dr. Moshe Gartenberg and Rabbi Shmuel Gluck
Dr. Gartenberg, a musmach of the Rabbi Jacob Joseph School, is Associate Professor for Mathematics at Baruch College, City University, NY, Rabbi Gluck is Menahel of Yeshiva Gedolah Ohr HaTorah, Monsey, NY
Journal of Halacha & Contemporary Society XXXVIII; Fall 1999; Sukkot 5760

Key words: fruit-bearing trees, bal tashchit, destruction

Introduction
When most of us think of the mitzvah of bal tashchit, it is in the context of the destruction of objects - we refrain from wasting food or destroying pencil stubs. But, in fact, the Torah presents this mitzvah in a far different context- the prohibition of the destruction of fruit-bearing trees. In Parshat Shoftim, as part of the discussion of the laws of milchama (national war), the Torah states:
When you lay siege to a city for many days, do not destroy the trees therein by swinging an ax against them, because from them you will eat.... but a tree of which it is known not to be food-yielding, that you may destroy.1
Although this Parsha discusses the prohibition of the destruction of fruit-bearing trees only during times of war, the issur (prohibition) applies as well to the destruction of such trees during times of peace. The Rambam writes:
Not only during siege, but in any situation...he gets lashes.2
Over the past centuries, with the majority of the Jewish population dwelling in cities, there was little cause or need to destroy fruit-bearing trees. But with more of the current Jewish population in Eretz Yisrael and the Diaspora living in agricultural or suburban settings, it has become essential for one to be familiar with the mitzvah of bal tashchit in the setting originally presented in the Torah.

One of the many criteria used to determine the severity of a mitzvat lo ta'aseh (negative commandment) is the level of punishment incurred for its transgression. In this light, it should be noted that Sifri counts the prohibition of cutting down fruit-bearing trees as both an aseh (positive commandment) as well as a lo ta'aseh.3 Furthermore, besides the punishment of Malkot (lashes) normally incurred for transgressing a lo ta'aseh, there is an additional punishment of mita bedai shomayim (early death). This is illustrated by the Gemara Bava Kamma which relates:

Rabbi Chanina states: My son Shivchot did not die [for any other reason] than as punishment for cutting down a fig tree before its time.4

Thus, although the Torah itself makes no explicit reference to mita bedai shomayim for transgressing the mitzvah, the Gemara attributes this severe level of punishment for transgression of bal tashchit. Furthermore, as we shall discuss below, the destruction of fruit-bearing trees is categorized by many authorities as an act that entails sakana (a level of personal danger).

One would imagine that because this mitzvah is halacha l'maaseh (currently applicable) and because the punishment that may be incurred is so severe, the halachic details of this mitzvah would be subject to scrupulous study on the part of the general Torah-observant population. That this is not the case is at least partially due to the fact that details of the mitzvah are not found in a single source, but are spread throughout the Responsa literature. It is hoped that this article will, at minimum, bring together some of the dispersed literature and familiarize the reader with of the basic issues of the mitzvah of bal tashchit.

Who Is Included In the Issur?
Both males and females who are of age are prohibited from destroying fruit-bearing trees,5 despite the fact that, during war, the destruction of the enemy's trees would normally be performed by male soldiers.

The Definition of A Fruit-bearing Tree
Two issues are relevant here:
1) what species of trees are "fruit-bearing"? and
2) what level of fruit production need be yielded by the tree?

Trees, which produce types of fruit normally, used for human consumption are clearly within the prohibition. The status of trees such as oaks, which yield acorns eaten by animals, is less clear. Exactly what trees are included in the term eitz ma'achol (a tree that yields food) that is used in the Torah?

Haktav V'hakabalah writes:

It is probable that this [the Torah's description] excludes trees within the forest that produce fruits and nuts, for even though they are food for animals and some people, they are not really food for people because they are coarse and damaging.6
According to Rabbi Dovid Feinstein, the criterion to be used in current times is whether the fruit is sold in supermarkets and other such stores.7 Working with this principle, trees which yield such produce as acorns, crab apples and wild berries would be excluded from the prohibition.

The question of what minimal annual yield of fruit need be produced by a tree in order for it to be considered fruit-bearing is discussed by several Rishonim (Rambam8 and Rabbeinu Yerucham as quoted by Yabia Omer).9 Their source is the Gemara Bava Kamma, which states that if a tree yields so small an amount of fruit (davar muat) that no one will bother to toil for it, then the tree may be cut down. The Gemara then proceeds to determine the minimum amount of produce required:

Rav says: "Any date tree that bears a kav (approximately 1.19 liters] of dates is forbidden to be cut down." The question was posed: we find that the minimum quantity [of olives] that must be yielded by an olive tree in order that it may not be cut down is a quarter kav [and not a whole kav]? To this Rav replied: "An olive tree, because of its importance, is considered productive even with a lesser amount than required of less important trees."10

The Sifri derives an exemption of cutting down older fruit-bearing trees whose yield is small, from the Torah's use of the words "asher teida" (that you know that they [the trees] are non-fruit-bearing). The implication is that the determination of whether a tree's yield is sufficient is subject to human assessment that the tree has aged and is no longer capable of yielding the requisite amount of fruit.11 Lechem Mishneh writes that if one seeks to cut down a fruit-bearing tree that is exempt from the issur because of its low level of yield, and one can also fulfill one's needs by cutting down a non-fruit-bearing tree, it is preferable to select the non-fruit-bearing tree.12

Ownerless Trees
The prohibition of bal tashchit applies not only to trees owned by the person engaged in the destruction, but even to trees owned by another Jew or a Gentile. According to the Shulchan Aruch Harav, even trees of hefker (ownerless trees) are included, since they are no worse than tress owned by Gentiles.13

Har Tzvi concurs with this ruling. He argues that the Torah singles out the destruction of trees during war but still permits the destruction of the enemy's city itself. Thus, with respect to the issur, trees have a special status which makes their destruction more severe than the destruction of other material items. Because of this, the destruction of trees is forbidden even if they are hefker.14

Yehudah Ya'aleh disagrees, citing Gemara Avodah Zarah 5 that one may not make one's animals drink from water that was left uncovered (for fear that a snake left its venom in the water and that those who drink the water will eventually die). One may infer from the Gemara's wording (one's animal) that one may make a hefker animal drink from this water, even though it might result in the animal's death. The implication is that the issur of bal tashchit does not apply to animals or trees that are hefker.15

Means of Destruction
All forms of destruction are prohibited. Sifri writes that this includes even goreim (indirect forms of destruction), such as the diversion of a tree's source of water. On the other hand, the Sifri implies that passive neglect that results in the death of the tree is outside the bounds of the prohibition.16

Destroying Portions of A Tree
Whether one is prohibited from destroying a part of a fruit-bearing tree is a matter of question. In his commentary to Gemara Kiddushin, Rashi implies that a destructive act that causes an item to lose value is included in the general issur of bal tashchit.17 On the other hand, Rashi's position, as understood by Shiltei Hagiborim in Avodah Zarah, is that there is no issur in maiming an animal (so that its value has been diminished) so long as it still can perform some valuable functions.18 It would follow from this opinion of Rashi that, if the tree can still produce some fruit (a valuable function) after a portion of it has been removed, there is no transgression.

The Mishneh Lamelech in his commentary on the Rambam similarly maintains that there is no issur to cut off branches from a fruit-bearing tree. He writes:

The Torah's prohibition of bal tashchit [occurs] only when the tree along with its roots have been cut, but in the case that only branches were cut, I am unaware of a source [to prohibit its destruction].19

Har Tzvi explains the basis for the Mishneh Lamelech's position. The issur of bal tashchit is to destroy the tree. Cutting off branches of a tree is a form of pruning and has the opposite effect, as pruning the tree will actually cause it to grow better.20 It follows from this argument that, according to the Mishneh Lamelech, any destruction of a portion of a tree that does not result in its improvement is forbidden.

The Yechaveh Daat quotes several authorities who hold that cutting off parts of a tree is included in the issur of bal tashchit. They argue that while the punishment of malkot (lashes) is forthcoming only when the entire tree has been destroyed, the destruction of part of a tree is nevertheless forbidden because of the rule "chatzi shiur osrah Torah."21 This means that a full shiur (amount) is required to incur punishment for the transgression but transgression of less than the full Torah-designated amount of an issur is still prohibited. Whether this rule applies to the mitzvah of bal tashchit may be dependent on the dispute as to whether, in general, the rule of chatzi shiur applies to issurim that do not involve the eating of food.22

Cutting Down A Tree For Constructive Purposes
The Rambam writes:
...but it is permissible to cut a tree if it is damaging other trees or if its wood is valuable. The Torah does not prohibit [the cutting of trees] unless it is a destructive act.23

The determination of exactly what constitutes a non-destructive act is the subject of much discussion in the halachic literature. In the following sections we discuss some of the types of non-destructive acts which may make the cutting down of fruit-bearing trees permissible.

Cutting Down Trees to Use Their Wood; Clearing Land for Construction
Shulchan Aruch Harav, on the basis of the Gemara Bava Kamma 91b, permits cutting down fruit-bearing trees either to use the wood for construction when such wood is valuable, or to use the wood to provide personal heating when no other fuel is available.24 Rosh, in his commentary on that text, writes:
"...if he needs the location of the tree, it [the destruction] is permissible."

Based on this Rosh, the Taz concludes:

"...and from this [the opinion of the Rosh], I have permitted someone who had trees on his land to cut down a tree, even if it is fruit-bearing, in order to build a house on it. The house would need to be of greater value than the tree".25

One may not destroy a fruit-bearing tree to satisfy a personal need. Chavot Yair is of the opinion that the desire to either extend a yard or to create a garden to make available more sunlight or to have a place for walking is not sufficient reason to cut down a fruit-bearing tree. He adds, however, that if a tree blocks out light from a window, it way be cut down since the tree is then considered to be destructive in nature.26 Sh'vut Yaakov is uncertain whether an exemption is applicable in this case.27

Cutting Down A Tree To Observe A Mitzvah
Be'er Sheva writes:
...it is possible that for an important mitzvah it (the destruction) would be permissible.28

Yechaveh Da'at is of the opinion that the issur of bal tashchit does not apply when it stands in the way of the mitzvah. As has been pointed out, the issur of bal tashchit only applies when there is no constructive motive for cutting down the tree. Cutting down a fruit-bearing tree to enable one to perform a mitzvah (such as cutting down a tree and burning the wood to use to cover the blood of a slaughtered bird when no other material is available) would be considered a constructive act.29 To back up this position, Shiltei Hagiborim notes that one is required to rend a garment when in mourning although this constitutes the destruction of the garment.30 Such a destructive act is permissible because a mitzvah is accomplished in the course of performing the destructive act.

Replanting An Existing Tree
Under certain circumstances it is permissible to uproot a tree to replant it somewhere else. Yaavetz writes:
If one uproots the vine and it will live, and one plants it somewhere else, there is no concern [of transgressing] the issur.31

Chaim B'yad cautions that, when uprooting a tree, one must be careful to preserve all roots and branches and to replant it immediately. He adds that if there is even a small chance that it will not be replanted properly, this option should be avoided.32

Chatam Sofer is somewhat more lenient. He agrees that one should not remove an older tree that cannot be replanted under the guise of replanting it. Yet he allows the removal of a tree, if it is reasonable to believe that the tree can be properly replanted and if a large sum of money is at stake.33

Fruit Trees That Cause Damage
The Gemara Bava Kamma 91b relates the following incidents:
Shmuel's sharecropper brought him some dates. He [Shmuel] ate some of them, and they had the taste of grapes. He asked, "Why is this?" The sharecropper responded "It was grown between the vines." Shmuel then remarked that, "If the taste of the grapes have been weakened to such an extent, you may bring me from its trunk."

Rif and Rosh in their commentaries to that text interpret it to mean that since the date tree absorbed so much flavor from the vines, it no doubt weakened them. Since the existence of the date tree was destructive to the grapevines, it may be cut down. Rambam also concludes that a tree that is destructive to other trees may be cut down.34

Removal by a Non-Jew
Avnei Tzedek writes that a Jew may not hire a Gentile to cut down a fruit-bearing tree. He argues that an employee is considered an extension of the employer.35 Notea Sorek adds that an independent contractor is not considered an extension of the owner and as such he would be permitted to remove such trees.36 Most poskim do not rely on this exemption, but will use it in conjunction with other factors. Yabia Omer writes:
In my view, to avoid problems, one should sell the tree to a Gentile, with [payment of] money and a contract, and then have the Gentile cut down the tree.37

The Risk of Premature Death
Does the punishment of an early death that is associated with transgressing the issur of bal tashchit apply to instances when it is permissible to destroy a tree? The opinion of Yabia Omer is that it does not apply. He writes:
It there is no issur, then there is no danger, for one is dependent on the other.38

Yaavetz disagrees. He bases his opinion on two sources. The first is the text quoted above regarding the death of Rav Chanina's son for cutting down a date tree prematurely. Rav Chanina could not attribute his son's early death to any cause other than destruction of the tree. It follows that his son Shivchot must have been a tzaddiik. If this were the case, Shivchot would not have committed any issur, and he was still subject to premature death despite the fact that no issur was committed. Thus one can conclude that a danger of premature death exists even when the destruction is halachically permitted.39

His second proof comes from a story related in Bava Kamma 92b:

Rava, the son of Rav Chama, had a date tree growing adjacent to the border of Rav Yosef's garden. The birds that came to the tree dirtied the garden and damaged it. Rav Yosef demanded that Rav Chama cut down the tree. To this, Rava , the son of Rav Chama, replied, "I won't cut it down because Rava said one may not cut down a tree that still produces a kav of fruits... If you wish to do so, you may cut it down."

A tree that attracts birds that dirty the garden may, by law, be cut down. The fact that Rav Chama, nonetheless, refused to cut it down indicates that even in a halachically permitted case, there still exists a level of danger.

As noted above, Yabia Omer disagrees with Yaavetz. He considers it inconceivable that Rambam, Rosh, and Taz, when listing situations for which destroying trees is permitted, would not mention the additional concern of mita bedai shamayim.

Yabia Omer also attempts to refute each of Yaavetz' proofs. He claims that in the first case, Shivchot destroyed the tree in error. He thought that the tree was not producing the sufficient quantity of fruit for the issur to apply. In fact, the quantity of produce did warrant the issur. Thus, when he cut down the tree, he had the status of a shogeg (one whose transgression is based on a false impression). The reason that he was punished by premature death was that he was a tzaddik, and a tzaddik is punished for the slightest infraction (including a shogeg). However, when the destruction of a tree is totally permissible, no punishment of premature death is incurred.

R. Yehuda Hechasid writes that a tree that is fruit-bearing should not be cut down in any case, even in those situations listed above.40 Many commentators, including Chida, point out that the majority of the restrictions mentioned by R. Yehuda Hechasid are rules that are permitted according to halacha.40 The restrictions come from reasons such as sakana (danger), or kabbalistic reasons or minhag (custom).

Is the general public required to follow the writings of R. Yehuda Hechasid? Chaim B'yad writes:

One who transgresses them [R. Yehuda Hechasid's restrictions] will not avoid punishment......Issues of danger are more serious than issues of halacha.42

On the other hand, Chida writes:

If one wants to be stringent when it is permissible ... it is enough to allow a Gentile to cut it down.43
In contrast, Shem Arye writes:
...and one who is not concerned (with the restrictions of R. Yehuda Hechasid) need not be bothered by them.44
In regard to another of R. Yehuda Hechasid's restrictions, Rav Moshe Feinstein writes:
Following R. Yehuda Hechasid's restrictions is a matter of personal choice and is not something that can be imposed on an individual.45

COMMENTS:

1. Devarim 20:19.
2. Rambam, Hilchot Melachim, 6:8.
3. Sifri, Devarim 20:19.
4. Bava Kamma, 91b.
5. Sefer Hachinuch, mitzvah 529.
6. Devarim 20:20.
7. Related to authors in conversation.
8. Hilchot Melachim, 6:9.
9. Yoreh Deah, 12.
10. Bava Kamma, 91b.
11. Sifri, Devarim 20:19.
12. Hilchot Melachim,6:9.
13. Hilchot Shmirat Haguf V'Nefesh, 14.
14. Hilchot Sukkah, 102.
15. Responsa, Yoreh Deah, 164.
16. Sifri, Devarim 20:19.
17. Kiddushin, 32a.
18. Commentary to Rif, Avodah Zarah, 4a.
19. Hilchot Issurei Mizbeach, 7:3.
20. Hilchot Sukkah, 101.
21. Vol. 5, 46.
22. There exists a difference of opinion whether the issur of chatzi shiur osrah Torah exists on a d'oraita (Torah-prohibited) level on lo ta'asei which do not involve eating or whether the issur is only d'rabbanon (prohibited by Rabbis), Responsa Torat Chesed, 44; Avnei Nezer, Yoreh Deah, 259; Chacham Tzvi, 86.
23. Hilchot Melachim, 6:8.
24. Hilchot Shmirat Haguf V'Nefesh, 14.
25. Yoreh Deah, 116:6.
26. Responsa, 195.
27. Responsa, Choshen Mishpat, 159.
28. Responsa, 24.
29. Yoreh Deah, vol. 5, 46.
30. Commentary to Rif Avodah Zarah, 4a.
31. Responsa, vol. 1, 76.
32. Responsa, 24.
33. Responsa, Yoreh Deah,102.
34. Hilchot Melachim, 6:5.
35. Hilchot Sheluchim, 11.
36. Responsa, Yoreh Deah, 12.
37. Responsa, Yoreh Deah, vol. 1 9:6.
38. Ibid.
39. Responsa, vol. 1, 76.
40. Tzavoat Reb Yehuda Hechasid, 45.
41. Responsa, 23.
42. Responsa, 24.
43. Responsa, 23.
44. Responsa, 24.
45. Responsa, Iggerot Moshe, Yoreh Deah III 133.

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