Shoftim:Cutting Down Fruit Trees

As previously mentioned, my shiur this week was on the topic of cutting down fruit trees. The Torah says that one can not cut down any fruit trees. However, the gemara in Bava Kama 91B and Bava Basra 26a qualify this that if the wood is worth more than the fruit one can cut it down. The Rosh adds that if one needs the mokom of the tree then one can also cut the tree down. Finally, the Rambam in Hil Melachim writes that the only issur is if it is cut down in a destructive manner. Therefore, the issur would not apply in the following scenarios a) if the wood is worth more than the fruit b) if one needs the mokom of the tree c) the tree is damaging the adjacent property d) the tree is old and not producing enough fruit (how much fruit is discussed by the Rambam).

The Taz brings this halacha down in Siman 117:6 and he mentions the heterim listed above. He also wonders why the Tur did not bring this halacha down at all.

Various poskim discuss this issue and they all seem to be in agreement that when one of the above situations apply it is muttar to cut down a tree. However, they do raise several interesting points.

Sakana

The gemara in Bava Basra mentions that Rav Chinina's son died because he cut down a fruit tree. From here we see that besides there being an issur to cut a tree down there is also an aspect of sakana. The question some poskin deal with is whether this sakana issue is separate from the issur or tied to the issur.

Sh'ailas Ya'avetz

The Sh'ailas Ya'avetz was asked about cutting down a tree to expand a shul. He says that it is a davar pashut that it is muttar since it is tzorech mitzvah and you need the mokom. However, he says even if it is muttar, it would still be a question of sakana. The rayah to this is from the gemara in Bava Basra. You can't say that Rav Chinina did an aveirah by cutting down the tree. It must have been a case where it was muttar. Yet we still see his son died. Therefore, even when it is muttar there is still a sakana.

L'ma'aseh, the Ya'avetz paskens that in this case the shul was being rented from a non-Jew and therefore you don't have to worry about the sakana since the tree was owned by the non-Jew. He also reccomends uprooting the entire tree and replanting it. Then there would be no problem of sakana either.

The Chasam Sofer disagrees. He paskens that if there is no issur then there is no sakana. As long as it is muttar one does not have to worry about a sakana. Howeevr, he does say that if you have any doubt whether it is muttar, you should not cut it down (for example you are not sure if the tree is dead) since it is a safeik sakana. He also says that uprooting and replanting the tree somewhere else only works if you have a reason to move the tree. Just to uproot it for no reason is still assur.

The Har Tzvi (O.C. Chelek 2 Siman 103/104) seems to follow the Sh'ailas Ya'avetz. He was asked about cutting down a tree to build a sukka. He says even though it is tzorech mitzvah and muttar, you still have to worry about the sakana. His eitzah is to have a non Jew do it so anu safeik sakana will be on his head. Rav Asher Weiss quotes a number of poskim who argue on the Sh'ailas Ya'avetz and say that if it is muttar there is no sakana. (also see the comments to my previous post)

Branches of a tree

There is a question if this issur applies to cutting branches off a tree. The Har Tzvi writes that it is a machlokes between the Mishneh L'Melech who is mattir and the Be'er Sheva who hold sit is assur. The Har Tzvi seems to lean towards it being muttar since even after cutting the branches, the nourishment extends to the rest of the tree. He still says have a non Jew do it.

One thought I had was that there is a whole industry of olive wood products (shtenders etc). I wonder where their wood comes from.