SALT - Rosh Chodesh - Sunday, 1 Elul 5776 - September 4, 2016

  • Rav David Silverberg

            The Torah in Parashat Shoftim (20:19) issues the prohibition against cutting down fruit-bearing trees, which is the source for the well-known prohibition of bal tashchit – the wasteful destruction of food or other commodities. 

            There is considerable discussion among the halakhic authorities as to whether this prohibition applies to ownerless property.  While intuitively we might have assumed that the Torah forbids destroying usable property regardless of whether anybody legally owns it, the Rosh appears to suggest otherwise.  The context of the Rosh’s comments is a startling Mishna, in Masekhet Middot (1:2), which tells that in the times of the Beit Ha-mikdash, an official would circulate among the Leviyim who stood guard in the Temple throughout the night.  If the official noticed a guard sleeping, he whipped him, and even had the right to burn the guard’s clothes as punishment for his laxity.  The Rosh, in his commentary to Masekhet Tamid (28a), raises the question of why this punitive measure did not transgress the prohibition of bal tashchit, and he answers by invoking the principle of “hefker beit din hefker.”  This means that rabbinical authorities had the legal power to confiscate property or transfer it from one person to another when necessary.  The Rosh does not elaborate, but it appears that in his view, the prohibition of bal tashchit applies only when one destroys something which he or another person owns.  Hence, as Chazal felt it appropriate to allow destroying a sleeping guard’s clothing as a deterrent to laxity in guarding the Temple, they declared a sleeping guard’s garment to be hefker (ownerless), such that it was then permissible to destroy it.  And thus in the Rosh’s view, it seems, the law of bal tashchit applies only to property that is under somebody’s legal possession.

            Rav Tzvi Pesach Frank, in one of his responsa (O.C. 2:102), cites the Aderet (Rav Eliyahu David Rabinowitz-Teomim) as observing that Tosefot appear to disagree with this view.  The Gemara in Masekhet Berakhot (36b) comments that one may not cut down fruit trees during the shemita year, due to the prohibition against wasting shemita produce.  It seems from the Gemara that this is forbidden only due to the prohibition against destroying shemita fruit, and would otherwise be permissible.  The question thus arises as to why this would not be forbidden regardless of the laws of shemita, by force of the prohibition of bal tashchit.  Tosefot answer that the prohibition of bal tashchit does not forbid cutting down trees containing less than a “kav” (a certain quantity) of fruit, or trees with wood whose value exceeds that of its fruit.  The Gemara therefore instructs that even such trees may not be cut down during shemita, due to the halakha requiring that shemita produce be eaten, and not destroyed.  The Aderet observes that Tosefot would never have asked this question if they had followed the Rosh’s view, that the prohibition of bal tashchit does not apply to ownerless property.  Halakha treats shemita produce as hefker, and thus, according to the Rosh, the law of bal tashchit is inapplicable to shemita produce.  It is forbidden to destroy shemita produce only because of the requirement to eat it, but not because of the prohibition of bal tashchit, and thus, seemingly, Tosefot’s question would not be asked according to the Rosh’s position.

            Rav Frank, however, refutes this proof, noting the distinction between the fruit and the branches.  Although shemita produce is considered ownerless, and is thus not subject to the prohibition of bal tashchit according to the Rosh, the wood of the tree – which is not edible – remains under its owner’s legal possession.  Hence, even according to the Rosh, we might question why the Gemara resorted to the special laws of shemita to explain the prohibition against cutting a fruit tree during shemita, as chopping the wood – which still belongs to the tree’s owner – seemingly violates bal tashchit.

            Additionally, this reading of the word “yado” expresses the broader theme of equality that features prominently in the laws of shemita and yovel.  Once in seven years – and in more pronounced form, once in fifty years, on the jubilee – we are reminded that as the land belongs to the Almighty, we are all, essentially, equal.  Therefore, as the Torah discusses in Parashat Behar, all agricultural lands and produce are declared ownerless during the shemita year, and on yovel all property is returned to its original owner, such that nobody ends up wealthier or poorer than anybody else.  For the same reason, all servants are freed on the jubilee, reminding us that ultimately, we are all servants of the Almighty and thus do not have the right to exert control over one another.  Rav Mecklenberg’s explanation of shemitat kesafim demonstrates how this mitzva, too, expresses this theme of shemita, as it is intended to break the lender’s hold over the borrower, reminding us that we are all God’s servants and fully and exclusively under His control and authority.