May Harmful Trees be Uprooted?

A comment concerning Israel’s judicial system: Instead of criticizing the High Court of Justice’s decision on infiltrators, the structure of the legal system should be changed from the ground up * The prohibition of destroying trees: Only a tree that produces a certain quantity of fruit is forbidden to be uprooted * Only the deliberate destroying of trees is prohibited, but uprooting in order to prevent damage is permitted, provided there is no other option * The cost of landscaping is not a reason to uproot a fruit tree * The dispute regarding uprooting trees for the purpose of expanding one’s house or renovating the garden * Some poskim are apprehensive of a Jew uprooting a tree even when halakha permits, therefore it is preferable to be done by a non-Jew

A Comment Regarding the Legal System

Recently, we have once again been informed that the Supreme Court has undermined the government’s policy regarding infiltrators. They have also frozen the ‘Formalization Law’ (‘Hok Ha-hasdara’) for an indefinite period, and all the efforts of Knesset members – representatives of the voting public, has gone down the drain. Following the Supreme Court’s decision, ministers and MKs voiced sharp objections and criticism about the legal system. However, the dismal situation of the judicial system has been apparent for a long time – from the justices of the Supreme Court, to the legal counsel and state attorneys – all of whom are committed to the rights of the individual, at the expense of Jewish national values. The complaints against them are futile – their views are clear, and they will not alter them.

Therefore, all the criticisms of the ministers and Knesset members are ineffectual; instead, they must utilize the power in their possession, and change the legal system from the ground up – this is what they were elected for! This will require a public and media struggle, including unambiguous legislation on national issues, changing the procedure for selecting judges, dividing the powers of the Attorney General, and restoring the role of legal counsel as advisers, and not policy makers. If there are ministers and Knesset members who feel that other MK’s in the government and Knesset are interfering with this change, they should publically condemn them, and not the judicial system, so the entire public will know who is critically violating their rights as a nation, and as an electorate.

Is it Permissible to Uproot Fruit Trees?

Q: “After we finished building our house, we planted 15 fruit trees in the garden. Over the years we have come to realize that in general, they have caused us grief. Most of the trees produce a small amount of fruit, and more often than not, the birds and insects eat them before we do. Two of the trees produce lots of fruits, but since we planted them near the window, the gnats and mosquitoes they attract, enter our house and cause us great sorrow. Our neighbors complain about the insects as well. Three of the trees hardly give any fruit. In addition, we want to expand our house, and in order to do so, we need to uproot at least two fruit trees. On top of all this, our garden looks inferior to those of our neighbors, because decorative trees and bushes look a lot nicer.

The question is, is it permissible to uproot all the fruit trees in order to expand the house, and in their place, plant decorative trees? In the present situation, the value of the fruit that grows on the trees is meager, and it is far more worthwhile for us to plant decorative trees instead – the fact being, that we are prepared to pay thousands of shekels to a gardener to renovate. If the answer is it is forbidden, is it permissible to at least uproot the trees that do not produce a lot of fruit, or those trees in areas where we intend to expand the house? And is it permitted to uproot all the trees by a non-Jew?”

What is a Fruit Tree?

Seeing as the subject is complex, there is room for a detailed explanation.

The prohibition of uprooting a fruit-bearing tree is on the condition that the tree actually yields fruit; but if the tree is old or sick, to the point where it produces less than a ‘kav’ of fruit per year (approximately one kilo and 200 grams, or more to be more precise, 1,200 Cc), its’ ruling of being considered a fruit-bearing tree is nullified, and can be uprooted. For an olive tree, because of its special importance, there is a ‘chumra‘ (a prohibition exceeding the bare requirement of halakha) that as long as it produces a quarter of a ‘kav‘ (approximately 300 grams) a year, it is forbidden to uproot it. In order to know how much fruit a tree produces, it must be surveyed for several years, in order to be certain that it does not yield more than the aforementioned amount.

This is measured according to the normal irrigation and treatment of the owner of the tree: if he waters and takes care of it regularly according to his understanding, and yet, it does not produce such a quantity of fruit, it is permitted to uproot it.

Even a young seedling that is still in the years of ‘orlah‘ (a tree during the first three years after planting) and does not yield fruit, is forbidden to uproot, because it is destined to produce a ‘kav‘ of fruit (Maharsham 7: 178).

A Fruit Tree that Causes Damage

The prohibition of uprooting a fruit tree is stated in the Torah in the language of destruction, as it is stated: “You must not destroy its trees” (Deuteronomy 20:19). It follows that it is permissible to uproot a fruit tree for the purpose of removing damage, since this uprooting is not for the purpose of destruction, but rather to remove damage. It is also told in the Talmud (Bava Kama 92a) that when the Amora Shmuel saw that the palm trees planted between the vines were harmful to the vines, he ordered his sharecropper to uproot the palms.

Therefore, it is permissible to uproot a fruit tree that overshadows a window and prevents light from entering the house, since this is considered significant damage for which people are usually meticulous about. However, if it is possible to prevent the damage by cutting the branches that overshadow the window, one should suffice with cutting them even though he will have to make an effort to cut them every few months, because preventing having to make such an effort does not permit the uprooting of a fruit tree (Chavot Yair 195).

This is also true in a case where one has to pay a gardener to cut the branches every few months. On the face of it, one could argue that just as it is permissible to uproot an orchard whose cost of operation is higher than its profits, so too, it is possible to uproot a fruit tree in a garden when the work of the landscaper minding the garden or cutting the branches is more costly than its value (for example, in a case where the tree produces five kilos a year of fruit worth 50 shekels, when the work of the gardener costs 200 shekels). However, such an argument cannot be made because planting a fruit tree in a private garden is not economically beneficial, since every intelligent person knows that the cost of growing fruit in a private garden (including work time) is far greater than the cost of growing fruit in a commercial orchard. Hence, according to the intent of those planting fruit trees in their garden – each kilo that grows in their garden, to them, is worth ten times the value of the fruit they would buy in a high-priced supermarket. Therefore, only when the prevention of damage involves an extremely great effort, or at a much higher cost than is customary in the treatment of fruit trees, is it permitted to uproot.

Therefore, when a fruit tree attracts gnats and flies that enter the house and cause great sorrow, one should first try to remove the damage by spraying pesticides, even though it involves effort and financial expenses. But if the attempts are not successful, it is permissible to uproot the tree.

Uprooting Trees for the Purpose of Expanding an Apartment or Garden

As we have learned, when uprooting is not for the purpose of destruction, but for an important benefit worth much more than the tree, it is not prohibited (Bava Kama 91b). Therefore, it is permissible to uproot fruit trees in order to build an apartment house in their stead.

However, some poskim (Jewish law arbiters) tend to be stringent, ruling that only for a vital need is uprooting a fruit tree permissible, such as in a case where a family has grown, and their apartment is overcrowded; but for purposes of luxury and extravagance, such as the expansion of a balcony without necessity, or the rearrangement of a garden in a more beautiful manner – fruit trees should not be uprooted (Shailat Yavetz, Zevchei Tzedek, Aruch HaShulchan). Some poskim tend to be lenient regarding uprooting trees for any need that is customary among the rich, or even to expand an empty space in a garden for the purpose of taking a stroll (Mahari Bassan, Chida, Shvut Yaakov).

In practice, those who want to be lenient have poskim to rely on, but l’chatchila (ideally), when possible, it is preferable to be stringent.

The Kabbalistic ‘Segulah’ Danger

Some poskim say that even when according to Jewish law it is permissible to uproot a fruit tree, all the same, one should be wary about doing so, because there is a tradition that anyone who uproots a fruit tree endangers his life, as Rabbi Chanina said: “My son did not pass away except for having cut down a fig tree before its time” (Bava Kama 91b). However, in the opinion of the majority of poskim, only when a tree is uprooted in contradiction to halakha is there a danger, but if it is done according to halakha, it does not pose any danger. On the other hand, there are some poskim who are apprehensive about uprooting a fruit tree even when it is permitted according to halakha; in particular, they learned this from the ethical will of Rabbi Yehuda HeHasid, who was one of the eminent Ashkenazi Rishonim kabbalists who warned not to uproot a fruit tree, and some poskim were very cautious about all of his warnings, saying that anyone who transgresses them, endangers his life (Ya’avetz 1:76; Chaim B’Yad). For this reason, even when according to halakha it was permissible to uproot a fruit tree, there were rabbis who were careful and apprehensive about giving such a ruling because of the danger. Several poskim advised that just to be sure, the uprooting should be carried out by a non-Jew for whom the prohibition does not apply, thereby saving the Jew from danger.

Uprooting by a Non-Jew

According to the majority of poskim, anything forbidden for a Jew to do from the Torah, is forbidden ‘me’divrei sofrim’ (from the words of the Sages), to request a non-Jew to do it for him. This prohibition is called “shvut“. However, in a situation of ‘safek issur’ (a doubtful prohibition), since the request from the non-Jew is forbidden only ‘me’divrei sofrim‘, and in a ‘safek d’rabbanan’ (a rabbinic doubt) one may act leniently, therefore, when there is doubt as to whether one is allowed to uproot a tree, it is permissible to ask a non-Jew to do it (as explained in “Peninei Halakha: Shevi’it” 5:9, footnote 9).

The Practical Halakha

One may uproot trees that cause damage by attracting insects, provided there is no other way to prevent this, and it is also permissible to uproot trees that prevent the expansion of a house. However, there is disagreement concerning the uprooting of fruit trees in order to create an attractive garden. Practically speaking, it seems that one who wishes to be lenient and uproot trees for decorative and luxury purposes has authorities to rely upon, on condition that one weighs his needs thoroughly and delays his decision, so that he will be sure it is a genuine desire, and not just a passing one. And it is proper to have a non-Jew uproot the tree.

An Apology for the Headlines of My Previous Article

As a footnote, I find it necessary to correct the mistaken impression that the editor who wrote the headlines, gave my previous article. Firstly, I made an effort in my article to explain the great weight of the ‘masoret’ (Jewish religious tradition) and ‘anshei emunah’ (people of faith) among all streams of Zionism. Therefore, the subtitle “Secular Zionism Succeeded in Establishing the State” is contrary to what I wrote. The ‘chiddush‘ (novelty) was that in order to lead the process forward, a deeper connection to ‘kodesh‘ (sacred ideals) is needed, and therefore, the main headline “No State without Faith” does not express the complex content of the article.

This article appears in the ‘Besheva’ newspaper, and was translated from Hebrew. Other interesting, informative, and thought-provoking articles by Rabbi Melamed can be found at: http://en.yhb.org.il/

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