In this week’s parsha we are told: כי תצור אל עיר ימים רבים להלחם עליה לתפשה לא תשחית את עצה לנדח עליו גרזן כי ממנו תאכל ואתו לא תכרת כי האדם עץ השדה לבא מפניך במצור. רק עץ אשר תדע כי לא עץ מאכל הוא אתו תשחית וכרת ובנית מצור על העיר אשר הוא עשה עמך מלחמה עד רדתה. – “When you besiege a city for many days to wage war against it to capture it, you shall not destroy its trees by wielding an ax against them, for you may eat from them, but you shall not cut them down. Is the tree of the field a man, to go into the siege before you? However, a tree you know is not a food tree, you may destroy and cut down, and you shall build bulwarks against the city that makes war with you, until its submission” (Devarim 20:19-20).
The Gemara in Bava Kama (91b-92a) and Bava Basra (26a) learns from here that there is a prohibition to cut down a fruit bearing tree, this prohibition is known as “ba’al tashchis”. Although the pasukim are talking about during war, it’s clear from the Gemara and the Rishonim that the prohibition applies at all times. This week iy’H we will discuss: Why exactly it is forbidden? People seem to believe there is a great danger involved in cutting down fruit trees, is there a source for this? What exactly is the nature of this danger? What is the reward for refraining from this form of ba’al tashchis? What does one do if there is no two ways about it and the tree must go? Can old trees that don’t produce enough fruit be cut down? What defines a tree as old? What can be done about a dangerous tree or one that was used for avodah zorah? If one was given permission to build on land to add rooms to his house, but there is a fruit tree right in the middle, is it permissible to remove it? What if the tree only darkens a room, or the fruit dirties the steps? Can a shul or mikveh be built on land that contains a fruit tree? Of this and more below.
Prohibited and Dangerous
Cutting down a fruit tree is not only forbidden, but is also dangerous. In Maseches Bava Kama (91b) and Bava Basra (26a) we are told of a person who would not have died had he not sinned in cutting down a fig tree. According to Rabbeinu Gershom and the Rashbam the deceased was Rabbi Chanina's own son. The Aruch Laner writes that it was Rabbi Chanina himself who cut down the tree, and his son who died prematurely as a result.
The Achronim write (She'ilos Ya'avetz 1:76; Binyan Tzion 61; Divrei Chaim 2: Yoreh Deah 57, and others) that cutting down a tree, when necessary, is permitted, but the need must also be clearly apparent to all. Rabbi Chanina's cutting down the tree was necessary and halachically permitted, but the need was not clearly apparent. Therefore, it caused his son to die. The Taz (Yoreh Deah 116:6) writes that when the prohibition does not exist, there is no danger.
The Gemara in Bava Metzia (108a) tells of a river that had fruit trees growing on its banks. The trees prevented boats from sailing up the river. Some of the trees belonged to the non-Jewish ruler who refused to cut them down, while the trees in the center belonged to Raba bar Rav Huna. Cutting down only the central trees would not have alleviated the situation, so Raba bar Rav Huna did not cut down his trees. One time, Raba bar Rav Nachman passed by. When he saw that the trees prevented the boats from passing, he inquired who was the owner of the trees. Upon hearing that they belonged to Raba bar Rav Huna, a prominent leader, he pronounced his admonishment: “... and the hand of the chiefs and the deputies was first in this treachery” (Ezra 9:3). He then ordered the trees be cut down, not knowing that cutting down only Raba bar Rav Huna's trees would not provide any relief. When Raba bar Rav Huna saw his trees cut down, he asked who had done it, announcing that the children of whoever did it would not live. Indeed, as long as Raba bar Rav Huna was alive, Raba bar Rav Nachman's children died in their youth. Similarly, we find by Avshalom, that his children died in his lifetime because he burned Yoav's wheat (Maharsha and Maharal on Maseches Sotah 11a). The Kerem Neta explains that one who burns his own wheat dies prematurely, while one who burns another's wheat - his sons die in his lifetime (effectively including wheat in the prohibition of uprooting fruit trees). The Toras Knaos, though, is of the opinion that the punishment was not a result of the aveirah of ba’al tashchis, but because he didn't pay for the loss he caused Yoav.
See however, the She'ilos Ya'avetz (1:76) who learns that even when it is permissible there is still a danger involved.
