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We are celebrating Tu B’Shvat, the New Year for trees. This date is primarily significant for mitzvos ha’teluyos ba’Aretz (agricultural mitzvos) as they relate to trees — such as orlah, neta revai, terumos and maasros, and shemittah — when the halachic year begins regarding the fruit. It is also an opportunity to reflect on our connection with the land, particularly the Land of Israel.

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Jonathan had a passion for trees, especially fruit trees. He decided to become a commercial orchardist and established a partnership with a non-Jewish acquaintance.

Tu B’Shvat was particularly meaningful for Jonathan. He held a lavish Tu B’Shvat seder, in which his family ate many kinds of fruit, sharing divrei Torah and songs.

He also attended a shiur by Rabbi Dayan in honor of Tu B’Shvat.

“The Mishna (Kiddushin 36b) states that agricultural mitzvos generally apply only in the Land of Israel,” explained Rabbi Dayan. “Nonetheless, the concluding Mishna in Maseches Orlah (3:9) teaches that the prohibition of orlah (fruit of the first three years) applies even outside of Israel as a halacha l’Moshe miSinai (oral tradition). Furthermore, it applies even to trees of a non-Jew. Fruit that is questionable orlah is prohibited in Israel, but permitted outside of Israel (Y.D. 294:8-9).”

Jonathan pondered; they had planted trees two years ago. Due to technological advances, the trees could already produce marketable fruit. “What do I do about these fruits?” he wondered.

Jonathan knew which trees were orlah, so the leniency of questionable orlah outside of Israel was not applicable, but his partner would not forgo these fruits!

He approached Rabbi Dayan after the shiur and said, “I own orlah trees in partnership with a non-Jew.”

“What should I do with the orlah fruit?”

Orlah is prohibited not only to eat, but even to benefit from,” replied Rabbi Dayan (Y.D. 294:1).

“When a Jew and a non-Jew are partners in orlah trees, the non-Jew may take his share, but the Jew may not benefit from the fruit. Moreover, he may not tell the non-Jew to take all the orlah fruit or their proceeds, because giving a gift is also a form of benefit. However, if the non-Jew takes the orlah of his own accord, it is permitted (Rambam Hil. Ma’achalos Asuros 8:16; Mishpetei Eretz Orlah 11:3:[8]).

“Similarly, the Jew may not have the non-Jew take this year’s orlah fruit, and, in exchange, take his share from non-orlah trees, or from the following year’s crop, because he would be trading the orlah fruit with others, and thereby benefitting from them (Y.D. 294:13).

“However, the Jew may sell the trees to the non-Jew vis-à-vis the fruit for the orlah years for a set sum before the fruit grow, because the fruit that grow subsequently will belong to the non-Jew.

“Alternatively, they can stipulate when initially forming the partnership that the non-Jew take the fruit the first three years and to the Jew in later years. This would be similar to the arrangements in hilchos Shabbos, that partners may stipulate initially that the non-Jew would take the proceeds of Shabbos, and the Jew of Sunday. However, they may not reckon the amount of fruit that grew each year and divide accordingly, because this is considered as trading the orlah fruit (O.C. 245:1).

“Moreover, some allow the partners to arrange, even after the partnership is established, that the non-Jew tend to the trees alone the first years and take the fruit, and the Jew tend to them in the following years and take the fruit,” concluded Rabbi Dayan. “This differs from Shabbos, because on Shabbos the work itself is prohibited, whereas there is no prohibition to work the trees during the orlah years, only to benefit from the fruit, and it is common that the person who works the trees receives the fruit (Rema 294:13, Mishpetei Eretz, Orlah 11:2).”

Verdict: A Jew who is a partner with a non-Jew in orlah trees, should either: sell the trees vis-à-vis their fruit for these years; arrange initially that the non-Jew take the fruit for the first years; or let the non-Jew take the fruit or their proceeds of his own accord.

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Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, headed by HaRav Chaim Kohn, a noted dayan. To receive BHI’s free newsletter, Business Weekly, send an e-mail to [email protected]. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, call the confidential hotline at 877-845-8455 or e-mail [email protected].