“עת שבאו אבותינו לארץ מצאו נטוע פטור, נטעו אף על פי שלא כבשו חייב. הנוטע לרבים, חייב. ר’ יהודה פוטר. הנוטע ברשות הרבים, והעובד כוכבים שנטע, והגזלן שנטע, והנוטע בספינה, והעולה מאליו, חייב בערלה”.
At the time that our fathers came into the Land and found (fruit trees) already planted, it is exempt from the law of orlah. If (after they came into the Land) they planted (a tree) though (the Land) had not yet been conquered it was subject. If one planted a tree [on his property] for public use, it is subject to the law of orlah. Rabbi Yehuda exempts it. If one planted on public property or a Gentile planted, or if a thief planted (on property that was not his) or if one planted on a boat, or a tree which grew on its own, it is subject to the laws of orlah.
[Mishna, Orlah 1:2]
Background
This Mishna deals with the prohibition of orlah. The Torah states:
“וְכִי תָבֹאוּ אֶל הָאָרֶץ וּנְטַעְתֶּם כָּל עֵץ מַאֲכָל וַעֲרַלְתֶּם עָרְלָתוֹ אֶת פִּרְיוֹ שָׁלֹשׁ שָׁנִים יִהְיֶה לָכֶם עֲרֵלִים לֹא יֵאָכֵל”.
When you come into the Land and plant any kind of tree for food, you are to consider the fruit forbidden. It will be forbidden to you for three years; it is not to be eaten.
[Vayikra (Leviticus) 19:23]
The Torah commands that we not eat the fruit of a tree during the first three years of its planting.
Our Mishna cites a number of laws concerning which trees are included in the prohibition, beginning with the statement that trees planted before Am Yisrael’s entry into the Land are exempt from orlah. However, from the moment Am Yisrael entered the Land, even prior to their conquest of her, all fruit trees planted within the Land are included in the prohibition.
This law obviously differs from other mitzvot which are dependent upon the Land, whose practical application commenced only following the (fourteen year) period of conquest and division of the Land among the tribes. “Chadash,” the prohibition to eat newly harvested grain before the omer offering was brought, [Vayikra 23:14] is an example of those mitzvot.
Questions on the Mishna
Is there significance to entry into the Land prior to its conquest?
We may ask further why the mitzva of orlah differs from those which are incumbent only after the Land was conquered.
Another puzzling thing is why the Mishna chose to cite a halacha which was relevant only to the generation which entered the Land, and even then, for an extremely limited period (the seven years of conquest). There are no practical implications of this statement of the Mishna, written hundreds of years after the entry into Eretz Yisrael, when all the Land’s trees were included in the orlah prohibition. Why did the Mishna see fit to preserve this halacha for all generations?
The Sanctity of Eretz Yisrael Due to Its Being Given to the Forefathers
In his work Caftor vaFeraḥ, Ishtori haParḥi (1280 – 1355) writes that the sanctity of Eretz Yisrael did not commence with Am Yisrael’s entry into her, but from the time God gave the Land to the Forefathers. While the sanctity was realized fully only upon Am Yisrael’s actual entry into Eretz Yisrael, nonetheless, the very fact that the Land was destined by God for Am Yisrael (the Nation of Israel) endowed her with sanctity.
Caftor vaFeraḥ cites numerous proofs that the Land was sanctified prior to its conquest. Our Father Yaacov, Joseph and Moshe all longed to be buried in Eretz Yisrael, before it was conquered by the Am Yisrael, Abraham purchased a burial plot in Hebron. The fathers wished to be buried in the Land because of its sanctity, as the result of which those buried within her are saved from having their remains roll through underground passages to reach the Land, as the Jerusalem Talmud [Kilayim 9:3] states. Eretz Yisrael has the unique trait that those resurrected within her will be brought back to life without suffering. Eretz Yisrael has an internal quality which is unique among the lands of the world; she is the holiest land in the world. Rabbi Yehuda ben Pazi teaches that Adam, the crown of God’s creation, was created from the site of the Temple altar, within the Land. [Jerusalem Talmud, Nazir 7:2]
Rashba (Rabbi Shlomo ibn Aderet 1235 – 1310) explains why the Mishna found it necessary to present the halacha that trees planted prior to Am Yisrael’s entry into the Land are exempt from orlah, despite the obvious fact that as a mitzva which depends on the Land, orlah could not possibly apply prior to the entry. Rashba’s explanation is that even prior to its entry into the Land, Eretz Yisrael was considered as being held by the Israelites. Eretz Yisrael belongs to Am Yisrael from the time it was given by God to our Father Abraham. Thus, the Mishna needed to teach that, despite this fact, the prohibition of orlah commenced only upon Israel’s entry into the Land.
This concept answers the first and third questions we raised. Firstly, it is now clear that indeed there is significance to Am Yisrael’s arrival in the Land even prior to its conquest, since, in truth, Eretz Yisrael is already considered as being held by Am Yisrael. The very fact that the Land was destined for Am Yisrael sanctified her. Therefore, we were obligated in the mitzva of orlah even before the Land was conquered and settled.
This also answers our third question: the Mishna chose to teach the halacha, despite its lack of practical relevance, as a means of conveying the strength of the connection between the Am Yisrael and Eretz Yisrael.
The Reason for the Distinction Between the Mitzva of Orlah and Other Mitzvot Which are Dependent On the Land
There are mitzvot which are dependent on the Land which became obligatory only from the time of the Land’s conquest, for example, Chadash, as we mentioned above. Though the Land has inherent sanctity which predates its conquest, the lack of conquest and settlement of the Land still constitutes a drawback, which prevents the application of all mitzvot which are Land-dependent. Deepening the connection between the Nation and the Land of Israel has halachic implications. The greater the extent to which Am Yisrael asserts it control of the Land, the greater the number of Israelites settling the Land, the greater the number and force of Land-dependent mitzvot which apply practically. As examples, the obligation to set aside cḥalla applies only when the majority of Am Yisrael is within the Land; [Gemara (Talmud) Ketubot 25a] and it is only when each tribe had settled its allotted portion that the mitzvot of Shemitta and Yovel are in force by Torah law [Gemara Arachin 32b].
This answers our second question: not all mitzvot were mandatory upon entering the Land; the more we strengthened our connection to Eretz Yisrael, the more mitzvot were incumbent upon us. We were obligated in the mitzva of orlah upon entry to the Land, while other mitzvot became mandatory only following the conquest and settlement of the Land.
The Connection to Eretz Yisrael in the Merit of Fathers
Eretz Yisrael has been continuously holy since it was destined for the Forefathers, and we have held her since then. The three factors, Eretz Yisrael, the Forefathers and the Nation of Israel, are interconnected. Israel is God’s treasured nation, as the result of being the descendants of Abraham, Isaac and Jacob, and Eretz Yisrael is holy by virtue of being the Land destined for God’s treasured nation.
Our connection to Eretz Yisrael does not upon her being conquered; rather we are inherently connected to her. Am Yisrael’s destiny is to be within the Holy Land. The sanctity of the Land and our connection to her are a single matter; she is holy as the estate of the holy nation. This connection was and always will be, since it is inherent.
May it be His will that all of Am Yisrael feel the nation’s inherent and eternal connection to the Land, and in this way, we will be privileged to continue to build the Land and be built up within her and to hasten the complete redemption.