Orlah Chapter 3, Mishnah 9 - the final mishnah of Maseches Orlah. The mishnah opens with the law of "safek orlah" - a case in which there is a doubt as to whether a particular fruit came from a tree of orlah.
To understand this law, an important principle must be introduced: the prohibition of orlah applies even outside the Land of Israel. This is surprising, since orlah is a mitzvah bound up with something that grows from the ground, and as a rule mitzvos of that kind apply only in the Land of Israel. Orlah, however, is unique in that it applies outside the Land as well, and even to fruit belonging to a non-Jew. Nevertheless, as the mishnah goes on to explain, a doubtful case of orlah is permitted outside the Land of Israel, and this is how the halachah was transmitted.
The three places in the mishnah:
"B'Eretz Yisrael asur" - in the Land of Israel one must be stringent in a case of doubt, just as we are stringent with any doubt concerning a mitzvah of the Torah.
"U'v'Surya mutar" - Syria has the status of outside the Land with regard to orlah, and therefore in a case of doubt it is permitted.
"U'v'chutz la'aretz yored v'lokeach" - outside the Land a Jew may even go down into the field together with the non-Jew and purchase from him fruit that has already been picked, provided that he does not see the non-Jew picking from the orlah itself. If he saw him picking from the orlah, this is certain orlah, and certain orlah is forbidden even outside the Land. The leniency was stated only where there is a doubt.
Kilei hakerem:
From here the mishnah moves to the law of kilei hakerem - things growing in a vineyard in forbidden proximity, which thereby become prohibited. Kilei hakerem applies by Torah law only in the Land of Israel, and by rabbinic law even outside the Land.
The mishnah states: "Kerem natua yarak, v'yarak nimkar chutzah lo" - a vineyard in which vegetables are planted, and vegetables are being sold outside it, and it is not known whether they came from the vineyard.
In the Land of Israel it is forbidden: this is a doubt concerning a Torah prohibition, and therefore one must be stringent.
And in Syria it is permitted: since its status is that of outside the Land, the prohibition is rabbinic only, and a doubt in a rabbinic matter is treated leniently.
And outside the Land he goes down and picks: the non-Jew may pick in the presence of the Jew, provided that a doubt remains as to whether this is really kilei hakerem. Even so, the Jewish buyer does not pick it himself, and there must be a certain distance between him and the picking of the produce.
The principle that emerges: as long as there is a doubt as to whether this is kilei hakerem, the proximity poses no problem, and the mere possibility of a doubt is enough to permit it - since a doubt in a rabbinic matter is treated leniently.
The prohibition of chadash:
The mishnah now speaks of the prohibition called chadash, which applies to the five species of grain: wheat, barley, rye, oats and spelt. In the time of the Beis HaMikdash, before the offering of the Omer on the sixteenth of Nissan - the second day of Pesach - the new grain was forbidden to be eaten and to be harvested, and after the offering was brought it became permitted. For us, the sixteenth of Nissan is the dividing line, and outside the Land the seventeenth of Nissan, and from that moment the new grain becomes permitted. The fact that we do not hear about this prohibition regularly, and that it is not observed to the same degree, rests on matters that lie beyond the scope of this mishnah; in any case, our mishnah assumes that the prohibition is relevant even outside the Land.
The conclusion of the mishnah - three prohibitions and three sources:
"HeChadash asur min haTorah b'chol makom" - a Torah prohibition everywhere, and not in the Land of Israel alone, learned from the verse "in all your dwelling places" - in every place where you dwell.
"V'ha'orlah halachah" - the prohibition of orlah outside the Land is not derived from a verse; rather it is a halachah from Sinai: a tradition in our hands from Sinai that orlah is forbidden even outside the Land. And from that same tradition we also learn that a doubtful case of orlah outside the Land is permitted.
"V'hakilayim midivrei sofrim" - the application of kilei hakerem outside the Land, meaning the prohibition of things planted in excessive proximity to a vineyard, is rabbinic only.
It is worth being precise about the distinction between the types of kilayim: kilei zera'im - two different species of vegetables, with no vineyard involved - apply only in the Land of Israel and not outside it. Kilei hakerem, by contrast, carry a prohibition of benefit, so that one may not derive any benefit from them, which is a more severe halachah, and the Sages decreed about them even outside the Land - but in the language of the mishnah, this decree is "midivrei sofrim," rabbinic only.
In summary: in this mishnah we learned that a doubtful case of orlah is forbidden in the Land of Israel and permitted in Syria and outside the Land, provided that one does not see the non-Jew picking from the orlah itself; and likewise that a doubtful case of kilei hakerem is forbidden in the Land of Israel and permitted in Syria and outside the Land, since a doubt in a rabbinic matter is treated leniently. In its closing words the mishnah sets out three different sources for the three prohibitions: chadash - from the Torah everywhere; orlah - a halachah from Sinai; and kilayim outside the Land - from the words of the Sages.
Thank you for joining us for Maseches Orlah. We hope you will join us for the next masechta, the final masechta in Seder Zeraim - Maseches Bikkurim.