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Sotah, 43

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 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 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 orchard apply?

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 fruits appeared.

43b

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 tree.

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 "Chilelo!"

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 HA'RO'IM)

ANSWERS:

(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!

ANSWERS:

(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 trees.)

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.)