There is a wonderful Panim Yafois in this week’s parsha. He writes that cutting down fruit trees for a mitzvah purpose such as wood for the mizbayach, or to make a succah is permitted as if there is a heter for greater value, all the more so for a mitzvah, which is priceless. He also adds that it may be permitted based on the rule that עשה דוחה לא תעשה, a positive commandment overrides a negative commandment.
The Be’er Sheva (cited by Mishneh Lemelech, Hilchos Issurei Mizba’ech 7:3) also mentions this idea. The Mishnah in Tamid (29a) relates that the wood from any tree is acceptable to be used as fuel on the mizbayach, with the exception of olive trees and grapevines. The Gemara presents two opinions as to why olive trees and grapevines are not acceptable. One opinion maintains that they burn too quickly to produce the right kind of fire for the mizba’ech.
The Be'er Sheva asks why the prohibition to cut down fruit trees is not mentioned in the Gemara as a reason for not using olive wood or grapevines on the mizbayach? And the Be’er Sheva answers that this prohibition would be suspended for the sake of the great mitzvah of producing wood to be used as fuel on the mizbayach.
The Medrash Tanchumah (Vayakhel 9) on the pasuk: ויעש את הקרשים למשכן עצי שיטים – “You shall make beams for the Mishkan from shitim wood”, comments:למד הקדוש ברוך הוא דרך ארץ ,שאם בקש אדם לבנות בית מאילן עושה פרות ,אומר לו :ומה מלך מלכי המלכים הקדוש ברוך הוא שהכל שלו ,כשאמר לעשות לו משכן ,חס על אילן עושה פרות ,אתה על אחת כמה וכמה – “Hakadosh Boruch Hu is teaching us a lesson in derech eretz, if a person asks for a house to be built from a fruit tree, say to him: The King of all kings, Hakadosh Boruch Hu who owns everything, when He commanded for the Mishkan to be built, he was worried for the fruit trees, you, how much more so.”
From this Medrash it would seem that destroying fruit trees even for a mitzvah purpose is prohibited? We could answer very simply that we can’t learn halachah from Aggadah, however, the Achronim do in fact address this question. The Igra Depirka (ois 282) answers: Really destroying trees for a mitzvah is allowed, however, Hakadosh Boruch Hu was coming to teach that we should be extra careful before doing so. The Shu”t Maharsham (Maftachos, Vol. 1, siman 22) answers, that for a mitzvah there is a heter, and the reason it wasn’t used for the Mishkan was because there was shitim wood, if, however, there wouldn’t have been any other wood, Hakadosh Boruch Hu would have instructed us to use it.
Building a Shul
If the only plot of land available for building a shul contains fruit trees, can the trees be uprooted or cut down? The Ya'avetz was asked this question, and he ruled (1:76) that it is permitted according to the Rosh and the Taz to uproot a tree only if the land is needed for building a shul, not for a private home. Nevertheless, even in this case it is preferable to do so by selling the tree to a non-Jew, but if it is impossible there is no problem in it.
The Da'as Kedoshim in his sefer Milei Dechasidosa (explaining Tzavo'as Rabbi Yehuda HaChasid, chapter 53) adds that following the understanding that souls are reincarnated in trees and when they are cut the souls forfeit their correction, when one cuts down the trees to build a shul it causes a spreading of the kedusha in the world. This augmentation of Kevod Shomayim is itself a reason to bring them to their final rectification.
Beis HaMedrash Strikov
Beis HaMedrash Strikov on Alshich street in Bnei Brak around ten years ago expanded their Beis HaMedrash. Being as there were many fruit trees in the way, there was no choice but to uproot them. In honor of this occasion, they hung up the following sign (erev Shabbos, Parshas Toldos 5777) in all their shteiblech:
לידיעת הציבור: העצים יעקרו ממקומם בהיתר מפורש מאת הרבנים שליט''א, עקב שצר המקום מלהכיל, ומותר מצד ההלכה לעקור. בנוסף לכך החמרנו: א. העצים כולל האדמה מסביב לעצים נמכרו לגוי – שלא יהיו שייכים ליהודי. ב. הגוי הוא שיוציא אותם מהאדמה, ולא בר ישראל. ג. העצים לא ייכרתו ויושחתו אלא במאמץ רב מצאנו מקום להעתקתם למשתלה, למען ימשיכו לפרוח ולהצמיח כיאות.
“For public awareness: The trees are being removed with a clear heter from the rabbonim shlita, due to the lack of space in the current shul, and according to halachah this is permissible. In addition to the above we have added the following stringencies: 1) The trees with the ground around them have been sold to a non-Jew – so they no longer belong to a Yid. 2) A non-Jew will uproot the trees, and not a Jew. 3) The trees are not going to be destroyed, rather after lots of time and effort, we find somewhere to replant them, in order that they can continue to grow and thrive in the future.
Other Mitzvah Needs
The Binyan Tzion (1:61) was asked about a person who wanted to marry but the law prevented him from doing so before he had a house, and his only option to build a house involved cutting down fruit trees. It seems that the trees in question were old ones which, although still produced fruit in the proscribed amount, and if uprooted and replanted would no longer bear fruit.
The Binyan Tzion answered that the need to build a house permits uprooting the trees, but due to the danger involved, it is preferable to sell the land with the trees to a non-Jew. If this is not a possibility, one is permitted to uproot the trees himself to allow him to perform the mitzvah of marrying.
Similarly, the Divrei Chaim (2, Yoreh Deah, 57) writes that clearing land for building a mikveh should also be preferably done by a non-Jew, but if that is not a possibility, it may be done by a Jew because it is for a mitzvah.
Branches Over a Succah
If a tree’s branches are making a succah pasul, the poskim allow cutting them to fulfill the mitzvah of succah (Shu”t Vayetar Yitzchak, siman 64), particularly if one is only cutting off some branches, which as we saw above is subject to a machlokes whether it is part of the issur in the first place.
