Siman 295

The Torah forbade five types of kilayim: kilayim of garments made of wool and linen together; kilayim of animals, to mate one species with another; kilayim of trees, to graft one species onto another—and these laws will be explained in this siman; kilayim of seeds, to sow two species of seeds together; and kilayim of the vineyard, which is to sow grain and seeds in a vineyard of grapes. These last two are obligations of the land and do not apply outside the land of Israel according to the Torah. Only by rabbinic decree did they forbid kilayim of the vineyard even outside the land of Israel, but not kilayim of seeds, because kilayim of the vineyard are forbidden for benefit according to the Torah, and therefore the rabbis decreed regarding them even outside the land of Israel (Kiddushin 39). One should not ask that if so, grafting of the tree should also not apply outside the land of Israel, for this too is an obligation of the land; however, it is explained in the Torah that this applies even outside the land of Israel, as it is written: "You shall keep My statutes: you shall not let your cattle mate with a diverse kind; you shall not sow your field with diverse seed." Just as your cattle refers to mating, so too your field refers to grafting; and just as your cattle applies both in the land and outside the land, so too your field applies both in the land and outside the land (ibid.).

How so? Thus the sages taught in the Mishnah, the first chapter of Kilayim (Mishnah 7): One may not graft a tree onto a tree, a vegetable onto a vegetable, nor a tree onto a vegetable, nor a vegetable onto a tree; see there. And so wrote the Tur, and this is his wording: For the Torah did not forbid in the diaspora except the grafting of a tree onto a tree, and whether a vegetable onto a tree, or a tree onto a vegetable, or a vegetable onto a vegetable that is not its species, and whether a tree onto a tree that is not its species, and even a non-fruit-bearing tree onto a fruit-bearing tree or a fruit-bearing tree onto a non-fruit-bearing tree. Thus far his words. And it implies that a non-fruit-bearing tree onto a non-fruit-bearing tree is permitted even with two species of trees, for all species of non-fruit-bearing trees are as one. And so wrote our teacher, the Rema, in section 6, and this is his wording: And so a non-fruit-bearing tree upon a non-fruit-bearing tree is permitted even though it is not its species. Thus far his words. And so it implies explicitly in the Yerushalmi there, which says: From where do we know that one may not graft a non-fruit-bearing tree upon a fruit-bearing tree, nor a fruit-bearing tree upon a fruit-bearing tree of a different species? The verse teaches: "My statutes [you shall keep]" etc.; see there. And since it did not also say regarding a non-fruit-bearing tree that it is forbidden with a different species, hear from this that there is only one species in non-fruit-bearing trees. And so it is explained in Torat Kohanim, Parshat Kedoshim; see there.

The words of the Rambam are perplexing in this, for he wrote in chapter 1 of Hilkhot Kilayim, law 5, and this is his wording: Kilayim of trees are included in "your field you shall not sow with kilayim." How so? One who grafts a tree onto a tree, such as one who grafted a shoot of an apple onto an etrog or an etrog onto an apple, behold, he is lashed by Torah law in every place, whether in the Land or outside the Land. And so too, one who grafts a vegetable onto a tree or a tree onto a vegetable is lashed in every place. Thus far his words. And why did he not write vegetable with vegetable as in the Mishnah?

And behold, this wonder also exists in the Gemara Chullin (60a), where it is asked: if one grafted two herbs one upon the other, what is the law? See there. Our teachers, the authors of the Tosafot there, and the Rash in the Mishnah have already stood upon this, for behold, in the Mishnah they explicitly forbade even herb with herb. They answered that the inquiry concerns outside the Land or a gentile; see there. According to the Rambam, it is impossible to say this, for if so, he should have said that in the Land of Israel it is forbidden (Keseph Mishneh). And regarding a gentile, it is impossible to say, for he should have explained that for an Israelite it is forbidden. Our teacher, the Beit Yosef, in his book Keseph Mishneh, was very pressed in this. And there is one who says that certainly there is a prohibition, as we learned in the Mishnah, and the inquiry there is regarding lashes; because there we say that the herbs applied a kal vachomer from the trees that each should emerge according to its kind, and one does not punish or warn from a logical derivation. Therefore, the Rambam, who deals with lashes, did not write herb with herb, but a prohibition exists (Maharsha there). However, if so, he should have explained that herb with herb is forbidden but one does not receive lashes (and from the Yerushalmi there it is explicitly implied that for the sons of Noah, herb with herb is permitted; see there).

And I learned from the words of the Semag in the Prohibitions (279) a completely different resolution. This is the wording of the Semag: It is written, "Your field you shall not sow with kilayim," that one should not sow two types of seeds together in the Land of Israel, etc. Included in this prohibition is what we learned in the first chapter of Kilayim: One may not graft a tree onto a tree, nor a vegetable onto a vegetable, nor a vegetable onto a tree, nor a tree onto a vegetable. And even though it is included within them, nevertheless, the grafting of a tree onto a tree and a vegetable onto a tree that we mentioned applies even outside the Land of Israel, as it is stated, etc., "just as your animal," etc., "so too your field" regarding grafting, even outside the Land of Israel. And you have no kilayim in trees except for grafting alone. Thus far his words. And it is not understood, for he himself brought the Mishnah that also counted vegetable with vegetable, and he concludes with tree onto tree and vegetable onto tree alone, and not vegetable with vegetable.

And it appears clearly that vegetable in vegetable does not fall under the category of harkavah at all. For behold, we learned harkavah from crossbreeding animals—a permanent thing from which seed and the seed of seed emerges. Likewise, harkavah in trees, or a vegetable in a tree, or a tree in a vegetable, for the tree endures for many years and from it many plantings are planted, and from those plantings, further plantings. But vegetable in vegetable, which quickly perishes as is the way of vegetables, does not have the name harkavah upon it at all, but is merely sowing, and it is not forbidden more than any other kilayim of seeds. For what difference does it make to me if one sows them together or inserts the vegetable into another vegetable, for in a short time they will grow and wither as is the way of vegetables. And the Tanna there did not use the language of harkavah, but rather "one may not bring," etc. And their laws are distinct: for tree in tree, and tree in vegetable, and vegetable in tree are from the perspective of harkavah and apply even in Chutz La'aretz. But vegetable in vegetable is merely kilayim of seeds, for the essence of the chapter there deals with kilayim of seeds. Therefore, the Rambam, who is dealing here with harkavah, did not count it, and so too the Semag. And he counts it later among kilayim of seeds in Eretz Yisrael when one sows two species of vegetables together, and he did not need to mention when one brings a vegetable into another vegetable, for this too is sowing, as is understood. And the inquiry in Chullin is whether the name harkavah applies to herbs, for perhaps since it is written "according to its kind," the name harkavah applies to it; and it was not resolved. And the Rambam was not concerned with this because in the Yerushalmi here it is explicit that the children of Noah were not commanded regarding vegetable in vegetable, and if there were an intermediate prohibition of harkavah in this, then the children of Noah would also be commanded regarding it, as the Rambam wrote in the tenth chapter of Kings. Therefore, he did not set aside the certainty of the Yerushalmi because of the doubt of our Talmud, and such is his way in every place.

The Rambam and the Shulchan Aruch wrote in section 2: It is forbidden for an Israelite to allow a gentile to graft trees of kilayim for him. Thus far their words. And the reason is simple, because of "do not place a stumbling block before the blind," and Bnei Noach were commanded regarding crossbreeding animals and grafting trees, as the Rambam wrote in chapter 10 of Laws of Kings, halacha 6. This is his wording: From the oral tradition, Bnei Noach are forbidden only in the crossbreeding of animals and the grafting of trees, but they are not executed for them. Thus far his words. And his reason is that even though they are not included in the seven mitzvot of Bnei Noach, and therefore they are not executed for them, and we do not rule like Rabbi Eliezer who said in Sanhedrin (56b) that this is of the mitzvot of Bnei Noach, see there, but rather like the Rabbis; nevertheless, even they admit perforce that they are forbidden in this. For behold, Rabbi Eliezer learned it there (60a) from the verse "You shall keep My statutes; your animal and your field," just as your animal is in crossbreeding, etc., see there. And this same derivation is in Kiddushin (39a) for the primary prohibition of grafting, and our teachers the authors of the Tosafot there indeed raised this difficulty and answered that the derivation is only for an Israelite, see there. And it is not understood at all; are these not "statutes that I have engraved for you already from the six days of creation," as is explained there? And they answered that one could say it was already at Marah, see there and at the end of the fifth chapter of Bava Kamma, and the forced nature of the answer is clear. Therefore, the Rambam explains that certainly this is not included in the seven mitzvot that we learned from the verse "And He commanded" there (56b), but regarding a general prohibition, the Rabbis agree with Rabbi Eliezer, and this is clear with the help of Heaven. (And so it appears from the Gra, subsection 4; and the words of the Kesef Mishneh and the Shach, siman 297, subsection 3, who wrote that the Rambam ruled that Bnei Noach are permitted in grafting, see there, and they were hard-pressed in the reason why it is forbidden to tell a gentile, it is mind-boggling, and the words of the Rambam that we wrote were omitted from them; and delve into this.)

We have learned in the Tosefta, chapter 1 of Kilayim (Halakha 10): One may sow seeds and tree seeds together, see there. The explanation of the matter is that the Torah only prohibited grafting when it is a tree, and not with seeds from which trees are sown. This is what the Tur and the Shulchan Aruch wrote in section 3: It is permitted to sow seeds and tree seed together, and it is likewise permitted to mix seeds of trees and sow them together, for you have no kilayim in trees except for grafting alone—whether a tree onto a vegetable, or a vegetable onto a tree, or a vegetable onto a vegetable that is not its species, and even a non-fruit-bearing tree onto a fruit tree or a fruit tree onto a non-fruit-bearing tree. Thus far his words. And the Rambam wrote similarly there. And it appears to me specifically when all of them are only seeds; but if one of them is a tree, it is forbidden to cast into it even a seed of another tree or of a vegetable. And likewise with a vegetable, it is forbidden to cast into it a seed of a tree or of another vegetable, for this is called grafting since one of them has the status of a tree or the status of a vegetable upon it. And the permissibility of seeds is only outside the Land, and not in the Land of Israel, for behold, this is kilayim of seeds.

Grafting is forbidden even if one does not graft one upon the other when they are exposed above the ground; even beneath the ground it is forbidden. For example, with vine branches that one layered beneath the ground, it is forbidden to sow vegetables or another tree over them unless there is three tefachim of earth over them. Even if he layered it inside a dried gourd or inside an earthenware pipe, it is forbidden because it takes root within it, and it becomes a case of grafting a vegetable onto a tree or a tree onto a tree. If there were less than three tefachim over it, it is forbidden to sow over it but permitted to sow at its side, for from the side they do not take root, and the roots of the vine also do not spread to the sides. If he layered it in hard rock, even if there is only three fingers of earth upon it, it is permitted to bring seed over it (and it requires further study if a tree is also permitted). In what case does this apply? When the base of the vine is not visible; but if it is visible, one must distance six tefachim in every direction and then sow, just as one distances from any individual vine that was not layered, as will be explained in siman 296.

And this is specifically when he layered it beneath the ground, such that the name "tree" was already upon this branch that he layered prior to the layering. But without having layered, even though it is known that the roots of the vine extend far beneath the ground, nevertheless it is permitted to sow next to the tree even though the roots of the vegetable enter among the roots of the tree, since the name "tree" is not upon the roots. And even in the case of layering, there is no prohibition except with the branches of a vine because they are soft and the roots of the seeds enter into them; but one who layers a branch from another tree, it is permitted to sow upon it even if there is not three fingers of earth upon it, for they are hard and the seeds do not enter into them. And some say that even without layering, one should not sow within three tefachim of the roots (Beit Yosef in the name of Tosafot and the Ran, and see Shach subsection 5). And although this opinion was not cited in the Shulchan Aruch, nevertheless it is proper to be careful in this.

What is called "like species with like species" and what is called "with a different species"? For behold, in every species of fruit there are many varieties, and it is impossible to say that they are shaatnez. Furthermore, it is stated in the Yerushalmi there that it is permitted to graft one species, even black ones onto white ones and small ones onto large ones, as our teacher, the Rema, wrote in section 6. This is his wording: And so too it is permitted to graft one species, even black ones onto white ones and small ones onto large ones, even though it has a descriptive name. Thus far his words. That is to say, for example, that one of them has an additional specific name beyond the general name; nevertheless, this is of no consequence. The definition in this matter of species and different species will be as has been explained with the help of Heaven.

The sages taught in the Mishnah, chapter 1 of Kilayim (mishnah 4): And among trees, pears and crustumenian pears, and quinces and hawthorns are not kilayim with one another. Apples and wild apples, peaches and almonds, jujubes and white thorns, even though they resemble one another, are kilayim with one another. And so wrote the Rambam, and the Tur, and the Shulchan Aruch. However, we do not know what these are in order to understand the distinction, and even though the commentators and the Aruch explained them all in a foreign tongue, they are not understood by us, and it appears that these trees are not found at all in our countries.

However, from the words of the Yerushalmi that we brought and from the words of the Rambam, chapter 3 of Hilkhot Kilayim, law 4, one may learn the definition he wrote: And so too regarding a tree where there are two species that resemble one another in their leaves or in their fruits, since they are two species, they are kilayim. How so? The apple with the wild apple, etc. And so too if there are other seeds and trees, even though they are two species in their nature, since the leaves of this one resemble the leaves of that one, or the fruit of this one resembles the fruit of that one with a great resemblance until they appear like two varieties of one species, they did not concern themselves with them for kilayim with one another, for in kilayim one follows only the appearance of the eye. Thus far his words.

And his words require clarification, for seemingly he contradicts himself. However, the clarification is as follows: whenever we see completely separate species that are not of one type at all, then even if the leaves resemble one another or the shape of the fruit resembles one another, it is kilayim. But if they are only two species in their nature—meaning that everything is one type, but in their nature they have no similarity, such as apples, of which some are sweet as honey and some are sour as vinegar, and some have a wine-like taste, and several other specific species, and all of them have a general name and a specific name, such as among us the Antonovka apple, the Tsitovka apple, and similarly with Berne apples, of which some are called Sapiezankas, Bergamots, and there are among them large and small ones and appearances of various colors, but in general they are one type and only in their nature do they differ—in this the Rambam says that when the leaves resemble one another or the fruits resemble one another with a great similarity, they are not kilayim with one another.

And according to this, in our country, all types of apples that are called "apples," they are all one species, and also forest apples are one species with all the apples, and it is permitted to graft this onto that. And so too all types of "pears" are permitted to be grafted onto one another. But "apples" with "pears" are kilayim, for they have no similarity, neither in the leaves nor in the fruits. But the apples on their own and the pears on their own—even though there are among them very large ones and very small ones, and the appearance is not similar to its fellow, and the taste is not similar—nevertheless, they have one form, and the leaves are very similar to one another. And even if perhaps there is some difference between one and another, nevertheless, according to the appearance of the eye, they all have one form in the leaves, and so too the shape of the fruit; for example, apples are all round, and pears are sharp at their bottom and round at their top, except that the difference is in size and smallness, and naturally the taste also changes between one and another, and they are all one species. And so too all types of "cherries," for there are some of them called "sour cherries" and some of them called "sweet cherries" and they are black, nevertheless they are all one species. And so too "plums," for there are among them large and small, black and white and red, and they are all one species, and it is permitted to graft from this onto that. And from this one may learn for all the fruits that are not common in our country. And it has already been explained that every species of non-fruit-bearing tree is one.

Our teacher, the Beit Yosef, wrote in section 7: It is forbidden to maintain a graft of kilayim, but the fruit that emerges from it is permitted, even to the one who transgressed and grafted it; and it is permitted to take a branch from the graft and plant it in another place. Thus far his words. And several great authorities have already cried out like a crane, for in all the countries, almost all the vineyards and orchards are grafted, and it is their custom to graft almost every year, and the Israelite buys the vineyard or the orchard; and since it is forbidden to maintain them, he is obligated to uproot them, yet there is no one who does so. It turns out that everyone transgresses every day the prohibition of maintaining kilayim. And there is one who wished to disqualify them from testimony, but it is not so, for one is not disqualified from testimony except for a prohibition involving an action for which one is lashed, and here the Israelite performs no action (Knesset HaGedolah, siman 99). And one cannot say that without an action there is no prohibition at all, for we explicitly say in the Yerushalmi at the beginning of chapter 8 of Kilayim on the Mishnah that kilayim of the vineyard are forbidden to sow and to maintain, etc.: Is this according to Rabbi Akiva who said one who maintains kilayim is lashed? Rabbi Yosa said: All agree regarding the prohibition that it is forbidden; see there. And there is one who labored to distinguish between the Land of Israel and outside the Land when it is not by way of an action, according to what appears from Tosafot (HaSocher 64a), that even according to Rabbi Akiva he did not forbid without an action (Chatam Sofer, siman 288). But it is impossible to say so: first, because this is against the Yerushalmi that we cited, and also from Tosafot it is not proven so; see there. (The Levushei Serad at the end of siman 106 wrote that forest apples are kilayim with orchard apples, and the Mishkenot Yaakov, siman 66, and the Gaon Rabbi Zalman Margolios rejected his words, for they are one species; and in any event, they all raised an outcry over the fact that people are not careful in this, as did the Chatam Sofer there).

In my humble opinion, it seems appropriate to argue in favor of the community of Israel, for behold, one must be precise regarding the Mishnah at the beginning of the eighth chapter of Kilayim, where it is taught: Kilayim of the vineyard are forbidden to sow and to maintain, etc.; kilayim of seeds are forbidden from sowing and from maintaining, etc.; kilayim of garments are permitted in every matter, etc.; kilayim of animals are permitted to raise and to maintain, and they are only forbidden to crossbreed, etc. See there. And why did it not count kilayim of the tree? And similarly, the Rambam at the beginning of the first chapter wrote: And it is forbidden for a person to maintain kilayim of seeds in his field. And similarly in the fifth chapter, law 8, regarding kilayim of the vineyard, he wrote: Whether one who plants or one who maintains, once he saw kilayim growing in his vineyard and left them, behold, he has sanctified [the vineyard], etc. Whereas regarding kilayim of the tree, in the first chapter, law 5, he wrote: Kilayim of trees, etc., one who grafts a tree onto a tree, behold, he receives lashes, etc. And why did he not mention maintaining here? And similarly, that which we learned in the Mishnah at the beginning of Shekalim: On the first of Adar they make an announcement concerning the shekalim and concerning the kilayim; and at the beginning of Moed Katan: On the intermediate days of the festival, the beit din goes out concerning the kilayim. And we say in the Gemara there (6a): And they raised a contradiction: On the first of Adar, etc. And it answers: Here regarding early-ripening, here regarding late-ripening, here regarding seeds, here regarding vegetables. And we say there: At first they would uproot and cast it before them, before their animals, and they were happy; they ordained that they should uproot and cast it upon the roads, etc.; they ordained that they should declare the entire field ownerless. See there. And why did they not mention kilayim of the tree at all? And similarly, in the entire Shas, when it brought this matter of one who maintains kilayim, it brought the Baraita: One who weeds or one who covers [seeds] in kilayim receives lashes; Rabbi Akiva says: Even one who maintains [them], at the beginning of Moed Katan and at the end of Makkot and in HaSokher (64a). And this is all regarding seeds, vegetables, and grains, in which there is weeding and covering. Rather, it is certainly so that regarding kilayim of the tree, there is no prohibition at all of maintaining kilayim. And there is a great reason for the matter, for behold, we learned kilayim of the tree from kilayim of animals from the verse: "Your animal you shall not crossbreed as kilayim, your field you shall not sow as kilayim"—just as your animal is by crossbreeding, so too your field is by grafting (Kiddushin 39a), as I wrote in section 1. And since the entire essence of the prohibition we learned from kilayim of animals, behold, we explicitly learned there that kilayim of animals are permitted to raise and to maintain, and automatically, kilayim of the tree are also thus. Therefore, the Tanna omitted them because they have one law. Furthermore, it stands to reason that regarding kilayim of seeds and kilayim of the vineyard, which currently stand in the middle of their growth, and when they grow they will be uprooted entirely, maintaining is applicable during the time they are in their growth, which means to leave them so that they grow. But regarding kilayim of the tree, the prohibition is only for a brief moment, and afterwards the tree stands forever and they do nothing to it, and the fruits grow on their own, and behold, they are permitted for eating; if so, how is maintaining kilayim applicable to them? Furthermore, to cut down a tree is also a prohibition because of "you shall not destroy its trees." According to this, in the opinion of the Rambam and according to all the sugyot of the Shas, maintaining kilayim is not applicable at all to trees.

And if it is difficult, for if so, what is this that the Tur and the Shulchan Aruch wrote, that it is forbidden to maintain a tree grafted with shaatnez? Know that this is from the words of the Rosh in the laws of shaatnez (section 3), and this is his wording: Even though one is lashed for the grafting of the tree and for its maintenance, nevertheless the fruit is permitted, and it is also permitted to take a graft from the grafted tree and plant it in the ground, etc. Thus far his words. And it is difficult: for if the tree is forbidden in its maintenance and one is obligated to cut it down, how is it permitted to take a graft from it and plant it? And conversely, if the branch is permitted, why was the entire tree forbidden? What difference is there to me between one branch and many branches? Rather, certainly even the intention of the Rosh is not as many understood, that his intention was to cut down the tree. Rather, this is the explanation: for behold, the Rosh certainly does not hold all these fine distinctions that we have analyzed, that there is no prohibition of maintenance at all in shaatnez of trees, and he holds that it is no less than shaatnez of seeds. However, his intention is immediately after the grafting, when the tree has not yet grown at all, one is obligated to remove the graft from the essence of the tree, and this is like seeds in the middle of their growth. But when it has already taken root and become a tree, it is completely permitted. Therefore he wrote that it is permitted to take a graft from it and plant it, since it has already grown and there is no prohibition of benefit in it. It follows according to this that in the opinion of the Rambam, there is no prohibition of maintenance at all in trees, and even according to the Rosh, it is only immediately when one grafts them. But when an Israelite purchases an orchard or a vineyard and there are grafted trees in them that have already become trees, there is no prohibition in this at all (as appears to my humble opinion).