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QUESTION

California, USA

We are looking at planting some new trees in our backyard and I found some fruit trees that I am interested in.

There are some trees that are grafted with multiple varieties of the same fruit (e.g fuji, gravenstein, red delicious, etc) so all are apples and similarly there are some with a variety of plums.

Additionally, I also found a tree, in a different nursery, that is called “the fruit salad”, as it is grafted with multiple types of fruit (e.g. 1 tree with a branch for each fruit; peach, nectarine, plum, and apricot).

Can you please clarify any halakhic issues that we need to consider, regarding grafting of multiple varieties of the same fruit, as well as issues related to grafting different types, though similar, fruit?

ANSWER

Orlah applies outside of the Land of Israel based on Halakha LeMoshe MiSinai (Mishnah Orlah 3:9; Shulchan Arukh YD 294:7). We are extremely lenient with all cases of doubt, even one’s that could be easily checked into (Shulchan Arukh YD 294:9).

Does a person have to wait 3 years from the time the tree is replanted in her yard? The answer is “no” as long as the roots always had some of the original dirt, so that the tree could be sustained by them, even for a few days. Given that we are lenient regarding doubts with orlah, one does not have to bring in an expert to assess this. (See Shulchan Arukh YD 294:19; Pitchei Teshuva YD 294:13; Arukh HaShulchan YD 294:35; Beit Yosef YD 294, אילן שעקרו, in the name of Teshuvot HaRashba 3:225).

So, if this tree had already grown 3 years, and there was sufficient dirt on its roots that it could keep growing a few days, there is no problem.

However, if the tree had not yet grown for 3 years, however, one would have to wait to the conclusion of 3 years before deriving benefit. [As to how one counts the three years, see Shulchan Arukh YD 294:4.]

Regarding Kilayim,

  1. Scope – Location, types of fruit
    1. Kilayim applies in Chutz LaAretzKilayim is logically something limited to the land of Israel because of its agricultural nature. Thus, when it comes to vine+grains or grains+grains, it is TOTALLY permitted to plant these together outside of Israel (although wheat, barley and vine are still rabbinically prohibited). – [Mishnah Orlah, 3:9; Rambam on Mishnah Orlah 3:9; Kiddushin 39a; Shulchan Arukh YD 295:1].
    2. On the other hand, non-agricultural kilyaimshatnez, animals – applies outside of Israel. For some reason, Chazal understood that trees are in the latter category (less direct working of the field, maybe?) and are BIBLICALLY forbidden to be planted together. One would get lashes if he were to do so [see above].
    3. Applies to trees of different species, not different types of the same species [Shulchan Arukh YD 295:6].
    4. Halakhic definition of species tends to broader than scientific ones, but often hard to define precisely.
    5. Multiple varieties of apples not a problem. Apples with plums is. The fruit salad is. [Shulchan Arukh YD 295:6]
  2. Scope of prohibition – creating, eating
    1. The only prohibition is TO CREATE the kilayim. To graft them from one to the other.
    2. There is no problem eating them. One is permitted to eat the fruit (hence, we eat pluots and the like) [Shulchan Arukh YD 295:7 – אבל הפרי היוצא ממנו, מותר, ואפילו לזה שעבר והרכיבו]
  3. Sustaining (Mekayeim)
    1. Mikayeim – The question is whether when one allows them to continue to grow or sustains their growth (מקיים כלאים), is this forbidden?
    2. Rishonim who think it is fine [Ritva on Kiddushin 39a; Tosafot HaRosh on Sotah 43b; for many, Rambam Kilayim 1:3]. Others forbid [Rosh on Menachot, Hilchot Kilayim 3].
    3. Shulchan Arukh forbids. [Shulchan Arukh YD 295:7 – אסור לקיים המורכב כלאים]. Based on this ruling of the Shulchan Arukh, one could not buy and plant such trees.
    4. However, there are many leniencies – [See Yabia Omer, 10:36, for a relatively brief overview of the different opinions regarding whether it is forbidden, and the range of leniencies. See also Pitchei Teshuva YD 295:4]:
      1. There are many who say that once the grafting has taken hold (the branch is fully connected), there is no problem of sustaining or planting. [Arukh HaShulchan YD 295:18; Responsa Chatam Sofer, Collected Responsa 25 (Chatam Sofer 6:25)]. This is a very well accepted opinion.
      2. There are some who say that sustaining/planting a grafted tree is not a problem if one is totally passive (not relevant here).
      3. According to some, it would not apply in chutz la’aretz.
    5. There are some who in general argue that we can rely on the more lenient position – sustaining and planting a grafted tree is permitted. Additionally, even those who are strict and forbid all types of קיום, are generally prepared to be lenient when other factors exist.
    6. Conclusion of Yabia Omer – You can be lenient. Ideally active maintenance should be done by a non-Jew. If the graft has totally taken hold – then it is totally permitted and you can even sustain them through direct actions.

המורם מכל האמור שיש מקום להקל בקיום האילנות המורכבים, וטוב להחמיר שלא להשקותם ולנכשם, אלא רק ע”י גוי. ואם נתאחה האילן המורכב לגמרי והיה לאחד, שפיר דמי לקיימו אפילו ע”י מעשה. והנלע”ד כתבתי.

  1. Practically – can one buy or keep such cross-breeds
    1. One can buy the grafted tree, once the grafting has fully taken hold, plant it and eat its fruit.
    2. If it has not taken hold, then there are leniencies, as per above, especially if one is not actively planting it and sustaining it.
    3. You still may not do any grafting itself, unless they are the same type (apples+apples).