Question:

In this week’s Parsha it states (Beraishis 32:25) “And Yaakov was left alone, and a man wrestled with him until daybreak.” Our Rabbis explain (Chullin 91a) that Yaakov had actually left his family, and returned by himself to collect small flasks that he had left behind. The following Halachic questions arise from this incident:

A. If a person leaves a personal item of value in a public place, such as in a taxi or on a bus, is he obligated to exert himself to try to locate it and go to retrieve it?

B. In what situations does the prohibition of (Devarim 20:19) Lo Tashchis (not wasting our personal possessions) apply?

Answer:

1. A. Although it is proper for a person to make an effort to retrieve items that he has left behind, he has no Halachic obligation to do so. There is no prohibition of Baal Tashchis involved in this. (1)

2. B. It is forbidden to cut down a fruit-beating tree for no reason (2). This is true whether the tree belongs to you, your friend, a non-Jew, or is ownerless.
3. This is prohibited even if the tree is not yet bearing fruit, or if the fruit produced is sour or defective. Interestingly, our Rabbis teach us that not only is it forbidden to cut down such a tree, it is dangerous to do so. (8)
4. C. There is disagreement among our Poskim whether or not this prohibition also applies to cutting branches from the tree, or if it only applies to cutting down the entire tree. Therefore, a person should also try not to cut the branches, unless it is absolutely necessary, as will be discussed in Answer E. (3)

   In situations where it is permitted to cut down such a tree, if it is possible to solve the problem by only cutting branches, this must be done. For example, if the branches of the tree are blocking the sunlight from entering one’s home, and he could either cut down the tree or trim the branches, he should only trim the branches, even though this might be more inconvenient for him in the long run. (4)

   It is permitted to prune some branches from a fruit-bearing tree if this will enable the tree or neighboring trees to grow better. (5)

5. D. It is permitted to cut down a non fruit-bearing tree if it belongs to you or is ownerless. However, our Rabbis point out that although there is no prohibition involved in cutting down such a tree, one who does so for no reason will not see a Siman Berocha (any signs of blessing) from doing this. (6)
6. E. If there is an absolute necessity to cut down a fruit-bearing tree, e.g. you would like to build a home or pave a road on that spot, or so that other nearby trees will not be damaged by this one, it is permitted to cut it down. Additionally, for a Mitzvah this would be permitted, e.g. to use the branches for S’chach. However, just to enlarge a play area or to improve the view from your window, it is prohibited to cut it down, since cutting down a fruit-bearing tree is only permitted for essential living purposes, and not for recreational purposes. (7)
7. F. Even in a situation where it is permitted to cut the tree, it is preferable that a non-Jew be hired to cut it down, since this prohibition is not applicable to him. If possible, the tree should be removed with the roots and surrounding earth and should be transplanted elsewhere. The best method of removing the tree would be to sell it to a non-Jew, and then have him remove it, if this is feasible. (8)
8. G. It is forbidden to destroy or demolish any property or structure that is fit to be used, if there is no constructive purpose in this action at all. Even if it is being done as a release for a person’s pent up anger, it is forbidden, even if doing so will relax him. (9)

   It is also forbidden to dispose of perfectly good food which is still fit to be eaten.

Sources:

(1) The Gemara in Chullin (91a) states that the reason that Yaakov Avinu returned to take the small jars that he had forgotten was because Tzaddikim (the righteous) hold their possessions to be very dear to them, since they have acquired them in an honest manner without any possibly of them being tainted by theft at all. It is clear from this that the prohibition of Baal Tashchis is not applicable in this manner. The prohibition only applies if someone directly destroys his possessions. Doing so in a passive manner, i.e. by not taking action to save them, as in our case where the item has been left behind, is not forbidden. However, it is most definitely praiseworthy to emulate the actions of our forefather Yaakov, to try to save our possessions whenever possible, even when doing so would be an inconvenience.

(2) The Gemara in Bava Kamma (91b), and the Rambam (Hilchos Melachim Ch. 6:8-10) state that the Torah has forbidden us to destroy any fruit bearing tree, even if it is ownerless. The Teshuvos Shevet HaSofer (Yoreh Deah 94) concludes that this applies even if the tree is not yet bearing fruit, or is bearing defective fruit. A person may only cut it down if the advantage for essential living purposes to the person cutting it is greater than the advantage of the tree remaining, as is stated in the Taz (Yoreh Deah 116:6) and the Teshuvos Chavos Ya’ir (Siman 195).

(3) Regarding cutting branches unnecessarily, the Teshuvos Bais Yitzchak (Yoreh Deah 142) is of the opinion that this is forbidden, whereas the Mishna L’Melech (Hilchos Issurei Mizbeach 7:3) states that this is permitted. Therefore, since we are dealing with a Biblical prohibition, it is proper for a person to be stringent regarding this.

(4) This is stated by the Teshuvos Chavos Ya’ir (195). His rationale is that we do not find that we are permitted to destroy a tree because of inconvenience, and we must minimize destroying fruit trees as much as possible.

(5) This is discussed in the Teshuvos Chikrei Lev (Mahadura Tinyana / Yoreh Deah Siman 11), in the Pischei Teshuva (Yoreh Deah 116:6), and the Darchei Teshuva there (51).

(6) The Rambam (Hilchos Melachim 6:9) writes that it is permitted to cut down any non fruit-bearing tree, even if you have no use for it. It is clear that in his opinion there is no prohibition of Baal Tashchis involved in this. Obviously, this is only if the tree is ownerless, or belongs to the person cutting it down. Otherwise it would be forbidden because he is damaging someone else’s property.

However, the Piskei Tosafos in Pesachim (132) state that if a person were to cut down even a non fruit-bearing tree, he will not see from this action a Siman Berocha. It is therefore preferable not to do so. This applies both in Israel and in the diaspora, as we find no such differentiation in the discussion in the Gemara there (50b). See also the Maharsha there (Chiddushei Aggados).

(7) This is discussed extensively in the Teshuvos Chavos Ya’ir (Siman 195), Shaalos U’Teshuvos Bais Yitzchok (Yoreh Deah Siman 142), Shaalos U’Teshuvos Minchas Elazar (Vol. 3 Siman 13), and the Shaalos U’Teshuvos Avnei Tzedek (Yoreh Deah Siman 45).

(8) The Gemara in Bava Kamma (91b) tells us that not only is there a prohibition to cut down a fruit-bearing tree for no reason, there is also a danger involved to the person cutting it down. This is actually an esoteric matter discussed in Kabbalah (Sefer Meah Shearim Ch. 8 by Rabbeinu Rikanti). Based on the reasons given there, it is appropriate to minimize the damage as much as possible, even in situations where it is technically permissible to cut down the tree.

The Chassam Sofer in his Teshuvos (Yoreh Deah 102) states that it is preferable that the tree be removed by a non-Jew, in a manner in which it can remain as intact as possible. The Teshuvos Bais Shlomo (Yoreh Deah Siman 191) states that it is even preferable that the tree be _sold_ to the non-Jew before it’s removal. However, the Chassam Sofer is quick to point out that this may not be used as a “loophole”. Only in a situation where it is necessary and permitted to cut it down may this be done. A person may not sell his tree to a non-Jew so that it be cut down if it is not a situation in which it would be Halachically permitted for him to do so. It is merely a preferred method to do what is already permitted.

(9) The Gemara in Kiddushin (32a), in Shabbos (105b, 129a, and 140a), and the Rambam (ibid.) state that even if breaking a vessel will relax the person and cause his anger to abate, this is not permitted. This is because it can not be considered destruction for a constructive purpose, since the person is surrendering to his Yetzer Hara (evil inclination) rather than controlling it. Such behavior has a destructive effect on his Neshama (soul).

Feedback is appreciated! It can be sent to[email protected].

This week’s class is based on a column by Rabbi Tzvi Shpitz, who is an Av Bais Din and Rosh Kollel in the Ramot neighborhood of Jerusalem. His Column originally appears in Hebrew in Toda’ah, a weekly publication in Jerusalem. It has been translated and reprinted here with his permission and approval.

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Please Note: The purpose of this column is to make people aware of Choshen Mishpat situations that can arise at any time, and the Halachic concepts that may be used to resolve them. Each individual situation must be resolved by an objective, competent Bais Din (or Rabbinic Arbitrator) in the presence of all parties involved!