Translated by David Silverberg
1. The Definition of Shomer Le-peri
The Gemara (36a) cites the ruling stated by Rav Yehuda in the name of Rav concerning the status of the tzelaf plant (caper-bush) with respect to the prohibition of orla. According to Rav, in chutz la-aretz (where orla applies only on a secondary level), one may not eat the actual fruit of the tzelaf (called evyonot)during its first three years, but may partake of its flower buds, which are called kafrisin. (The evyonot fruit develop after the flowers blossom.) The Gemara brings this halakha in an effort to determine the status of the kafrisin with regard to berakhot, whether or not it warrants the recitation of borei peri ha-etz. This question hinges on their formal status, whether we consider them fruits of the tzelaf, even though they are, in truth, merely buds of the flower, or if they lack the formal status of a peri (fruit). In approaching this question, the Gemara invokes Rav Yehuda's ruling regarding orla. Orla applies only to fruits of trees; seemingly, then, we may determine the tzelaf's status with respect to berakhot by seeing how it is classified with regard to the laws of orla.
Addressing the permission granted by Rav Yehuda to partake of the kafrisin during the tree's first three years, the Gemara (36b) counters that they should be forbidden by virtue of their function as a shomer le-peri – protectors the actual fruit. Based on the otherwise superfluous word "et" in the verse establishing the orla prohibition ("va-araltem orlato ET piryo" – Vayikra 19:23), the Gemara asserts that the laws of orla apply to a shomer le-peri just as to the fruits themselves. Seemingly, the Gemara argues, even if the kafrisin do not meet the criteria for classification as "fruit," they should nevertheless be included under the prohibitions of orla given their role in protecting the fruit.
Ultimately, the Gemara concludes that the kafrisin cannot be considered a shomer le-peri:
Rav said: When do we say that they serve as a protector of the fruit – when it exists at the time of the fruit's completion. But the kafras does not exist at the time of the fruit's completion [but rather falls from the branch beforehand]. Is this so? Did not Rav Nachman say in the name of Rabba Bar Avuha, these calyxes [that surround the date] of orla are forbidden, since they serve as a protector of the fruit? And when do they protect the fruit – [only] in the early stages [of a date's development] – and yet it is considered a protector of the fruit… Rather, Rava said: When do we say that it is a protector of the fruit – [in cases] where if you would remove the protector, the fruit would die. But here, if you remove it [the kafrisin flowers], the fruit does not die.
The Sefer Ha-chinukh (246) writes:
That which protects the fruit is obligated with respect to orla… It is only under the conditions known to our Sages of blessed memory that the shomer is forbidden, namely, that the shomer remains with the fruit until the time the fruit reaches the point of inclusion in the orla prohibition, and also that the fruit needs it to such an extent that were you to remove the shomer, the fruit would die.
The Chinukh here codifies both of Rava's answers, hinging the shomer le-peri status on its presence alongside the fruit until the fruit's completion, and on its indispensability for the fruit's existence. But according to the straightforward reading of this sugya, Rava's second answer comes in place of his first, rather than adding a second factor; thus, the shomer le-peri status depends on only a single condition – that the fruit would die without the protective substance. The question, then, arises, why did the Chinukh include the first condition, as well, requiring that the shomer remain with the fruit until the fruit becomes subject to the orla prohibition? After all, this appears to be the first condition mentioned by Rava – "that it exists at the time of the fruit's completion" – since it is as this point when the laws of orla take effect. The Minchat Chinukh indeed poses this question against the Chinukh.
2. The Berakha Over a Shomer Le-peri
In order to understand the Chinukh's position, we must examine the debate between Tosefot and the Rashba regarding the berakha recited over pits of fruits. The Mishna states in Masekhet Orla (1:8): "Peels of a pomegranate and its sprouting, the shells of nuts and their seeds – are obligated in orla." From our sugya it appears that seeds and shells are subject to the laws of orla by virtue of their being a shomer le-pri. However, Tosefot here (s.v. kelipei)comment on this Mishna, "the shells of nuts and their seeds are obligated in orla – because they are fruit. From here [we may deduce] that over seeds of cherries, and over seeds of peaches and apples, and over all kinds of seeds of fruit, one must recite the berakha of borei peri ha-etz." The Rashba disagrees, and advances a compelling argument for his position:
This does not seem right to me at all, for these [parts of fruit] are not obligated in orla because [they are considered an actual part of] the fruit, but rather due to the superfluous [term] "et," which we interpret [as a reference to] that which is secondary to its fruit. And this is why they are mentioned in the Mishna together with nutshells, and they are all included [under the orla prohibition] based on "et."
According to the Rashba, despite the fact that the orla prohibitions apply to a shomer le-pri, it does not warrant the recitation of borei peri ha-etz. We are thus faced with a dispute among the Rishonim as to which berakha one recites over a shomer le-pri, and it behooves us to understand the conceptual basis of these divergent views.
3. Two Approaches to the Halakha of Shomer Le-pri
It stands to reason that Tosefot and the Rashba argue with regard to the fundamental nature of the halakha of shomer le-pri. According to the Rashba, the shomer is not considered part of the actual fruit. Nevertheless, based on the inference from the verse – "va-araltem… et piryo" – we extend the orla prohibition, which applies to the fruit itself, to the shomer, as well, despite its being a separate entity from the fruit. Therefore, in the Rashba's view, when the Gemara draws an equation between orla and berakhot, it does so only with respect to the status of a peri ha-ilan (fruit of a tree); both areas of Halakha feature similar criteria by which we classify a fruit under this category. With regard, however, to a shomer le-peri, despite its being subject to the laws of orla, it does not warrant the recitation of borei peri ha-etz, since it does not constitute part of the actual fruit. Tosefot, by contrast, perhaps felt that we infer from the word "et" that the shomer is indeed part of the fruit, and for this reason it is subject to orla. Hence, just as we consider the shomer part of the fruit with respect to orla, so do we afford it this status for purposes of berakhot. Indeed, the Rashbatz, in explaining why one recites borei peri ha-etz over shells, writes, "for if you remove them, the fruit will be ruined." Clearly, he felt that the recitation of borei peri ha-etz hinges on the shomer le-pri status.
[In truth, one might argue that Tosefot in fact concur with the Rashba's position that a shomer le-peri does not warrant the berakha of borei peri ha-etz. However, in their view, pits and seeds of a fruit do not fall under the category of shomer le-pri (see Nimukei Yosef), since they do not protect the fruit from the exterior, and are instead situated inside the fruit. For this reason, Tosefot deduced that if the orla prohibitions apply to pits, we have no choice but to consider them part of the actual fruit, thus warranting the berakha of borei peri ha-etz. As they write, "the shells of nuts and their seeds are obligated in orla – because they are fruit" – meaning, the seeds are part of the actual fruit.]
Now Tosefot in Bava Kama (101a s.v. ve-lo yitzba) ask why one may not make use of paint produced by soaking shells of orla fruits, according to Rabbi Yehoshua, who maintains that orla does not apply to juices extracted from fruits. In their second answer, Tosefot distinguish between the status of the fruit itself, and of a shomer. Rabbi Yehoshua derives his halakha from the common word peri used both in the context of orla and regarding bikkurim, and on this basis concludes that just as the bikkurim obligation does not apply to fruit juices, so is orla limited to the actual fruit itself. Tosefot thus suggest that Rabbi Yehoshua's restriction applies only to fruit:
However, [regarding] a shomer le-pri, which is included [in the orla prohibition] based on [the inference from] "et piryo," [which refers to] that which is secondary to its fruit, their liquid is not excluded. And we cannot exclude [the liquid of a shomer] based on [the term] "peri" [used in the context of] bikkurim, because bikkurim does not apply at all to a shomer le-pri; and even though it then turns out that the secondary [component, the shomer,] is more stringent than the primary [component – the fruit itself].
This approach suggested by Tosefot in Baba Kama draws a clear distinction between the actual fruit and the shomer with regard to the laws of orla. Clearly, such a distinction could not be sustained if the halakha of shomer le-pri simply extends the definition of peri to include the parts that protect the fruit. Necessarily, then, this view expressed by Tosefot works on the assumption that orla applies to a shomer not because it constitutes part of the actual fruit, but rather as a distinct orla prohibition applicable to a shomer. As such, since its prohibition stands separate and apart from the orla prohibition of fruits, we should expect to find practical differences between the fruit and the shomer in terms of the orla prohibition. Accordingly, the liquid of the shells may very likely be included in the prohibition, whereas the juice extracted from fruits, which do not bear the status of peri, as Rabbi Yehoshua derives from the halakhot of bikkurim, are not subject to the strictures of orla.
In light of what we have seen, let us now return to the position of the Chinukh, that even according to the Gemara's conclusion, orla applies to a shomer only if it remains with the fruit until its final completion. Logically, we could explain that in the Chinukh's view, the halakha of orla as it applies to a shomer is simply an extension of the orla prohibition applicable to the fruit itself. Clearly, we cannot extend the fruit's prohibition to the shomer if there is no fruit. The Chinukh was therefore compelled to explain that Rava's final conclusion, that the halakha of shomer hinges on the protective substance's indispensability for the fruit's existence, does not negate his earlier contention, requiring that the shomer remain with the fruit until it is fully grown.
Conversely, if we would argue that the shomer does not constitute part of the actual fruit, then we would presumably accept the straightforward reading of the sugya. Namely, according to Rava's conclusion, only one condition must be met for a protective substance to qualify as a shomer – that the fruit would perish in its absence. Anything indispensable for the fruit's existence, even in its earliest stages, is included under the inference from the word "et," which extends the orla prohibition to any secondary substances associated with the fruit. They thus become subject to the orla laws independent of the fruit. In this vein we would explain the position of the Minchat Chinukh.
In truth, however, we might explain the Chinukh's position differently. His view appears in the Chiddushei Ha-Ra'a, which states, "A shomer le-pri is forbidden only if the shomer exists at the time when it [the actual fruit] becomes forbidden, and then it is considered similar to the fruit and becomes forbidden with it… And we also require that if you remove the shomer, the fruit will be ruined… " This passage implies that a shomer le-pri does not constitute part of the actual fruit, but nevertheless it becomes forbidden only if it still exists when the fruit reaches completion. According to the Ra'a, even if the shomer is not part of the actual fruit, it is not forbidden independently; rather, its prohibition stems from the orla prohibition as it takes effect on the fruit itself. Naturally, then, the shomer cannot become forbidden unless it still exists when the orla prohibition takes effect, which occurs at the moment of the fruit's completion. Clearly, then, even according to the Gemara's conclusion, a shomer can become subject to orla only if it remains with the fruit until the point of the fruit's completion. (It should be noted that many scholars attribute the Sefer Ha-chinukh to the Ra'a.)
In any event, it would appear that at the initial stage of our sugya, when the Gemara afforded kafrisin the status of shomer le-pri, it understood the prohibition as it applies to the shomer as an independent halakha, separate and apart from the halakha that applies to the actual fruit. After all, the kafrisin are not part of the fruit at all, as they are simply the flower buds from which the fruit later grows; they serve no function at all at the time of the fruit's completion. We could define the buds as shomerim only by virtue of their association with the fruit, and not due to their identity as part of the actual fruit. According to the Gemara's conclusion, however, limiting the shomer status to substances that are critical parts of the fruit, it becomes possible to understand the halakha of shomer differently, namely, that the shomer is forbidden because it constitutes part of the actual fruit, as we explained.
In this context, it is worth noting the Yerushalmi's presentation of a debate between Rav and Shemuel as to whether we might apply orla to kafrisin by force of orla'sapplication to shells (Ma'asrot 4:4):
Shemuel says: A kafras is forbidden because [they are like] shells… Rav was giving instructions to those in the school of Rav. Rav Huna came [and reported that Rav] Hamnuna would instruct the students: Instruct your wives that when they press this kafras, they should [first] remove these small fruits. Rabbi Abba said: Rabbi Ze'ira explained that [the kafras is permitted because] all shells grow with the fruit, whereas here [in the case of the kafras], the fruit is on top and the kafras is down below.
Rav follows the view adopted in the Bavli, that the orla prohibitions does not apply to kafrisin, but his line of reasoning differs from that presented in our sugya. According to the Yerushalmi, kafrisin are not subject to orla because the fruits do not grow alongside the remnants of the kafrisin flowers. If we assume that shells are forbidden because they constitute part of the actual fruit, we would presumably demand that the shomer and the fruit itself be attached, and thus kafrisin do not qualify for shomer status. According to Shemuel, however, kafrisin are forbidden just like shells, even though they grow apart from the fruit. He apparently viewed the halakha of shomer as stemming from the shomer's affiliation with the fruit, and not because it is considered part of the fruit.
4. The Relationship Between the Laws of Berakhot and the Laws of Orla
Earlier, we encountered the position of the Rashba, that a given item's inclusion under the prohibition of orla does not necessarily result in the berakha of borei peri ha-etz upon its consumption. As we saw, the comparison drawn in the Gemara between berakhot and orla works only to determine which fruits qualify for the category of peirot ha-ilan. Thus, in the Rashba's view, a shomer is indeed subject to the laws of orla, even though it does not constitute part of the actual fruit, and yet it does not warrant the recitation of borei peri ha-etz.
We find a similar phenomenon with regard to the issue of a minimum size requirement. Tosefot (s.v. shi'uro) rule that just as orla does not apply to undeveloped grapes smaller than the size of pul ha-lavan (the "white bean"), so do such grapes not qualify for the berakha of borei peri ha-etz. The Rosh (5) notes that this restriction applies only to grapes; other fruits, however, become subject to the prohibitions of orla immediately once the fruit begins to grow. Hence, fruits other than grapes qualify for borei peri ha-etz even before they reach the size of pul ha-lavan. This is indeed the ruling of the Shulchan Arukh (O.C. 202:2):
An undeveloped grape – so long as it has not reached the size of a pul ha-lavan, one recites over it borei peri ha-adama; from the point it reaches the size of a pul ha-lavan onward, one recites over it borei peri ha-etz. And since we have not been informed of the size of a pul ha-lavan, one always recites borei peri ha-adama until it is very large. All other trees – once they produce fruit, once recites over it borei peri ha-etz.
The Vilna Gaon, however, challenged this ruling. The thrust of his question is that we derive from orla only the criteria by which we define a fruit as a peri with respect to berakhot. Never have we seen that the moment the orla prohibition takes effect, the proper berakha becomes borei peri ha-etz. After all, the issue of berakha depends on whether one partakes of the fruit in its normal manner of consumption. The prohibitions of orla, however, take effect immediately at the moment when the given item attains the halakhic status of a peri. It should stand to reason, then, that the strictures of orla would indeed take effect already at the earliest stages of a fruit's development, whereas one would not recite borei peri ha-etz until a much later stage.