THOUGHTS ON THE DAILY DAF
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Rosh Kollel: Rav Mordecai Kornfeld
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SOTAH 43 - Sponsored by Martin Fogel of California, for a Refu'ah Shelemah
for Hendel bas Chava, and Hava Rivkah bas Hendel.
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 announcement of the
Shotrim concerning who is 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 announcement 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 is the Chilul of the verse (Devarim 20:6) referring?
(a) RASHI here (and in 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, making the fruit
Chulin, and permitting the rest of the fruit that his field produces to be
eaten. 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
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 one fruit, or must he be Mechalel fruit from at least five trees of
the orchard, or from all of the trees of the orchard? In addition, there is
an opinion that maintains that only a grapevine is considered Neta Reva'i in
its fourth year, while any other type of fruit tree may be eaten without
Chilul starting in its fourth year (Berachos 35a). According to that
opinion, when will the Torah's exemption from war for one who planted an
We might infer the answer to these questions from the wording of the Rambam,
who writes that the exemption applies "from when he begins to eat the fruit
of his vineyard." Hence, 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, just like one who just 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). It
is not clear what the logical basis for this is, 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 does not rejoice in the fruit that he is eating,
but in the vine that was blessed with growing these fruits. The vine -- like
the house -- still remains. The reason his joy begins from the time that he
eats the fruit is because it is at that time that he derives physical
benefit from it, and thus that is when he expresses his joy and gratitude to
Hashem. However, he continues to rejoice and praise Hashem 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 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 praising ("Hilulim") Hashem. The Ramban explains
that when the tree would begin to produce fruit in the fourth year, it was
customary for the owner to rejoice over the success of his produce which
Hashem granted to him. Hence, the exemption would apply to all trees whether
or not the Halachah of Neta Reva'i applies to it, and it would start 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
2) THE EXEMPTION FROM MILITARY SERVICE FOR ONE WHO WAS "MAVRICH" OR "MARKIV"
QUESTIONS: The Mishnah teaches that even a person who is Mavrich and Markiv
a tree is exempt from military service (that is, he goes out, but upon the
Kohen's announcement he returns home). The Gemara asks that we find that a
Beraisa teaches that the words "v'Lo Chilelo" teach that one does *not*
return from serving in the war as a result of being Mavrich and Markiv a
3) THE OBLIGATION OF "ORLAH" OF LOW-GROWING TREES
Rav Chisda answers that the Mishnah is referring to one who was Mavrich or
Markiv in a permissible manner; he returns from serving in the war. The
Beraisa is referring to one who was Mavrich or Markiv in a prohibited
manner; he does not return.
The Gemara later cites Rav Dimi in the name of Rebbi Yochanan who gives
another answer. The Beraisa is following 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, though, follows the view of the Rabanan who do not limit the verse
to the literal meaning of "Nata."
How can this Beraisa be following 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
Second, the Mishnah that argues with Rebbi Eliezer ben Yakov will also need
to explain what the word "Chilelo" is excluding. Since the Mishnah does not
accept Rebbi Eliezer ben Yakov's ruling, it cannot be excluding Mavrich and
Markiv! What, then, is it excluding? We must revert to Rav Chisda's
explanation, that the verse is excluding one who was Mavrich or Markiv in a
*prohibited* manner. If Rav Chisda's distinction is clear according to the
Mishnah, then why does Rebbi Yochanan find it necessary to explain that the
Beraisa means something else?
In addition, how do we see from the phrase, "v'Lo Chilelo" ("he was not
Mechalel *it*"), that one who was Mavrich or Markiv a tree is to be excluded
from the exemption from army service? The exclusion (Mi'ut) would seem 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
(a) The KEREN ORAH explains that even though Rebbi Eliezer ben Yakov reads
the word "Kerem" literally -- to mean only a grapevine -- nevertheless he
would not have translated the word "Nata" to limit it to planting, as
opposed to Mavrich or Markiv unless he had a second verse to support that
interpretation. That 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 teach us to exclude them, like 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 our Gemara 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 Halachos 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 will
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, takes the verse literally, and therefore he exempts from war
service 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 we will explain, 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 when
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 Batel to the
original plant, because even the original plant could be Chayav in 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 only Chayav in Reva'i if the prohibition of
Orlah applied to it prior to its fourth year. Hence, if -- by the fourth
year -- the owner has not yet 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 raise the plant for wood by the onset of
the fourth year. Since the plant cannot become obligated in Reva'i, what 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 that 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 way that Rebbi Eliezer ben Yakov learns from
"Chilelo" that Mavrich or Markiv does not exempt one from military service.
The Keren Orah and Turei Even point out that according to their
understanding, Rebbi Eliezer ben Yakov should obligate a fruit that was
produced through Mavrich or Markiv in the laws of Orlah, since the verse
"v'Lo Chilelo" is only written with regard to the exemption from military
service, but not with regard to 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" (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 learn 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 would
be parallel to the way the Beraisa previously explained the verse "v'Lo Chan
acho" (Devarim 20:5). Why does the Beraisa have to propose an entirely
different Derashah from "v'Lo Chilelo?" (Even though the verse excludes a
stolen house, it must also exclude a stolen vine, just like the verse had to
include a purchased vine after including 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 are excluding something that was acquired through prohibited
means (theft or Kilayim). However, according to the second answer (Rav Dimi
in the name of Rebbi Yochanan), the Beraisa should have learned from "v'Lo
Chilelo" that planting a stolen vine does not exempt one from military
service, rather than teaching that Mavrich or Markiv in a permissible way
does not exempt one.
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 "... to exclude Mavrich and Markiv," it is referring back to Rebbi
Eliezer ben Yakov's statement ("k'Mashma'o") and explaining that this same
logic of Rebbi Eliezer ben Yakov will teach that the word "Nata" excludes
Mavrich and Markiv, like the Gemara says ("'Nata' k'Mashma'o").
This answers the question that we asked. Rebbi Eliezer ben Yakov indeed does
*not* need "Chilelo" to exclude Mavrich or Markiv. (M. Kornfeld; the MINCHAS
SOTAH presents a similar approach.)
QUESTION: Rebbi Eliezer ben Yakov rules that if a plantling does not reach
the height of one Tefach, it is Chayav in the laws of Orlah mid'Rabanan for
as long as it exists. He continues and says that this applies only if there
are five of such plants in one place, in the formation of 2, 2, and 1. If,
on the other hand, there is an entire orchard of such plants, then 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 this applies only if there are five such trees?
What is the Halachah in a case where there are less than five trees, such as
one or two such plants? It would seem that in such a case the laws of Orlah
should certainly apply mid'Rabanan!
(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 is saying 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, the Gemara does not write the words "even if...." In addition, why
does the Gemara skip from teaching the Halachah concerning five trees, to
the Halachah of an entire orchard? It should have said that "more than five
trees" are not Chayav in Orlah mid'Rabanan!
Moreover, what difference does the form in which the five trees were planted
make? Since the Halachos of Orlah do not depend on the form in which the
trees are 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 form in which they are planted)?
The answer might be that the Gemara is referring specifically to a
low-growing grapevine. Since the laws of Kilayim apply to a grapevine
planted in this form (of 2, 2, and 1), such a formation might have its own
"name" through which people remember when it was planted, just 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 only remember 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 holds like the opinion in Berachos (35a) that rules
that the laws of Reva'i (and Orlah) apply only to a Kerem, a vineyard (five
vines planted in the form of 2, 2, and 1).
(The Gemara in Berachos cites two sources for the opinion that says Reva'i
applies only to Kerem. One source is from a Gezeirah Shavah from Kilayim.
The other source is from the word "Hilulim" which implies that Reva'i
applies to something on 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, that learns Reva'i from Kilayim, just
like Kilayim 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 in Rosh Hashanah (9b) asks that Rashi seems to be ignoring the
words of the verse, "u'Netatem *Kol* Etz Ma'achal v'Araltem Orlaso" (Vayikra
19:23), which teaches that Orlah applies to *all* fruit trees! (He cites
further proof from Berachos 35b that Orlah applies to all types of fruit
Rashi perhaps does not mean that the opinion that holds that Reva'i applies
only to Kerem (vineyard) also holds that Orlah also applies only to a Kerem.
Rather, Rashi means that the opinion that holds that Reva'i applies only to
Kerem is saying two points regarding Reva'i: first, Reva'i applies only to a
grapevine and not to other trees; second, 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. Regarding Orlah, the first point certainly
is not true, because the verse says explicitly that Orlah applies to all
types of fruit trees. However, there is no reason to assume that the second
point does not apply to Orlah, and therefore only five trees planted in the
specific formation are Chayav in Orlah according to this opinion.
(Even though we find in the laws of Kilayim that this formation has
significance only with regard to a vineyard, nevertheless we see from our
Mishnah that this formation has significance even with regard to other types
of trees, like Rashi says in the Mishnah, DH Chamishah. It is possible that
the other Rishonim would disagree with Rashi and rule that it makes no
difference in which formation five trees of other types are planted in order
to exempt the owner from military service.)
(c) The CHASAM SOFER (YD 285) suggests that Rashi does not mean to say that
the laws of Orlah only apply to a Kerem. Rather, Rashi means to suggest that
the word "Orlah" in our Gemara is referring to what is normally called "Neta
Reva'i," and it is not referring to Orlah (like we find in the Mishnah in
Orlah 2:3). The laws of Orlah, however, apply to all trees, like the Ramban
and other Rishonim maintain.
The reason Rashi finds it necessary to explain that the Gemara is referring
to Neta Reva'i is because it is not logical to suggest that the low-growing
vine would be confused with real Orlah fruits, since fruits that are real
Orlah are usually small and of low quality (see Ramban, Vayikra 19:23). In
addition, if it is referring to Orlah, why would Rebbi Eliezer ben Yakov
permit the vine to remain? Since its fruit can 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. (Moreover,
Rashi might have been forced to explain that the Gemara is referring to
Reva'i in order to answer the question 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
would seem to imply that Rebbi Eliezer ben Yakov is referring to the Isur of
Orlah and not to Reva'i.)