Halacha for Wednesday 11 Tammuz 5777 July 5 2017

Uprooting a Fruit Tree in Order to Build a House

In the previous Halachot we have explained that the Torah prohibits uprooting a fruit-bearing tree, such as a palm tree or a grapevine. We have also discussed several situations where it is permissible to uproot a fruit tree, for instance, when the actual wood of the tree is worth more than the fruits it produces, in which case it is permissible to uproot the tree in order to sell its wood, as this is not considered a “destructive manner.”

Uprooting a Tree in Order to Build a House
The Rosh writes that if one needs the place of the tree, for example, if the tree is planted in a place where one would like to build a structure, it seems that it will be permissible to cut it down. Rabbeinu Yerocham (Netiv 32, Part 2, page 94d) writes likewise: “One may not cut down one’s own trees; however, if one needs their place, this is permissible.” Maran Rabbeinu Ovadia Yosef zt”l writes in his Yabia Omer (Volume 5, Yoreh De’ah, Chapter 12) that it seems from their words that even if the tree will be completely destroyed by uprooting it to use its place, there is nevertheless no prohibition to do so since this is not being done in a destructive manner. The opinion of the Rosh and Rabbeinu Yerocham thus seems quite novel, for the Gemara says it is permissible to cut down a tree only when its wood can be sold for a high price and is thus not being “destroyed,” whereas the Rosh and Rabbeinu Yerocham rule leniently and allow cutting down the tree even when it is being completely destroyed, merely because its space is needed, for the bottom line is that this is not a being done in a “destructive manner.”

However, several Acharonim disagree with the opinion of the Rosh, including the author of the Sefer Bet Yaakov, and they support their opinion with proofs. However, halachically speaking, Maran Ha’Chida rebuffs all of the proofs set forth by the author of Bet Yaakov and rules that when it is necessary to extend one’s house due to the space being too tight for those residing in it, one may cut down a tree that is in that space and there is no prohibition to do so whatsoever. Nevertheless, when one extends one’s house merely for aesthetic and leisurely purposes and not because it is truly necessary, one should not be lenient to cut down a tree for this purpose, for only regarding a non-fruit-bearing tree is there no prohibition to uproot it as long as there is some sort of benefit; however, regarding a fruit-bearing tree, one may only uproot it in a case of great need. He quotes this law in the name of several great Poskim.

Danger Posed by Uprooting Fruit Trees
Until now, we have only dealt with this matter from a halachic perspective. However, Hagaon Harav Yaakov Emdin in his Responsa She’elat Ya’abetz writes that even in a situation where it is halachically permissible to cut done a fruit tree, there is still a danger involved in doing so. He brings a proof from the words of Rabbi Chanina in the Gemara (Baba Kama, 91b) who said that his son by the name of Shivchat, who was a truly righteous man in every sense, passed away at a young age. His father, Rabbi Chanina, could find no other reason for this to happen than because he cut down a young fig tree. Certainly, he did so in a halachically acceptable manner and nevertheless, he still passed away at a young age as a result. Based on this, we see that there is a danger involved in cutting down a fruit tree, “For a man is like a tree of the field.” In any case, it is not a pious act to cut down a fruit tree even in a permissible fashion.

Although there are some authorities who disagree with the stance of Hagaon Ya’abetz and write that there is no prohibition or danger involved in this matter, nevertheless, we find that in the will of Rabbeinu Yehuda Ha’Chassid, he writes that one should not cut down a fruit-bearing tree. We must understand his words to include even a situation where one is doing so in a permissible fashion. It is well-known that the Poskim disagree on whether or not one must be concerned with what Rabbeinu Yehuda Ha’Chassid wrote in his will, as we shall, G-d-willing, speak about on another occasion. Thus, halachically speaking, although Maran zt”l rules that one may cut down a fruit tree in order to build a house where the necessity is great, nevertheless, it is proper to do so by hiring a non-Jew to uproot the trees as opposed to doing so himself.

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