10-5771 Mitzvah N-105
Negative Mitzvah 105– This is a negative commandment: eat no fruit of a tree in the three first years since its planting
Hafetz Hayim – As Scripture says: “three years it shall be as forbidden to you; it shall not be eaten” (Lev. 19:23). Even what is doubtfully (not certainly) orlah, fruit of the first three years, is forbidden. In lands other than Israel, there is a law given to Moses orally at Sinai that what is certainly orlah is forbidden, while fruit that is doubtfully orlah is permissible. Over certain, indisputable orlah in the Land of Israel, whiplashes are deserved; while in other countries one should be flogged with whiplashes of disobedience.
This is in force everywhere, in every time , for both men and women.
I see this law of “orlah” as similar to the eight day waiting period for Brit Milah, and for the time a calf can remain with the mother before being eligible for sacrifice. Just because we have something, does not mean that we can do what we please. These perhaps are “first born fruit” that belong to God just as the firstborn of the herd and the first born of the flock belong to God. In any event, the Torah is explicit that the first fruits cannot be eaten. But that is only one level of this Mitzvah. The Hafetz Hayim gives us much more to ponder as he explains orlah.
The first difference is between orlah in Israel and orlah outside of Israel. In both locations we cannot eat the fruit of a tree in the first three years after planting. But three years is a long time. We can forget exactly when we planted the tree or whether this was the new tree or if it was a completely different tree. We could be doubtful if we are holding fruits from the new tree or if they are mixed up with fruits from older trees. What happens when we are not sure that the fruit we have is orlah or not?
If we are in the Land of Israel, we treat fruit that we are unsure of as if they are orlah and we refrain from eating them. This is a strict law that only applies to the Land of Israel. Outside of Israel, fruits that are certainly orlah cannot be eaten, but fruits that are doubtful, can be eaten. The rules about fruit outside of Israel is not in the written Torah but is claimed to be a law from the Oral Torah, the law that Moses was taught while he was up on Mt. Sinai for 40 days and nights. This Oral Torah eventually will become the Mishna and the Talmud. The Rabbis see both the Written Torah and the Oral Torah as having equal standing under the law. Yet here, the punishment violating the law differs between Israel and the diaspora. When one is certain about the status of orlah, and uses it anyway, in Israel such a person is flogged as one who violated a biblical command. Outside of Israel, the biblical command is not in force, but the Rabbis commanded that the person be flogged for disobeying a rabbinic ordinance. This is a different kind of flogging, one that is not the formal punishment of the court but one that is used to insure compliance with rabbinic law. These whippings are not tied to the same formal rules as the biblical flogging but were still limited to 39 lashes in most cases.