Uprooting Fruit Trees

Question

Zevulun went to market to buy fruit and vegetables for Shabbos. When he arrives home,
he suddenly realizes that he forgot a bag of over-ripe tomatoes at the bus stop. Does he
have to go back to fetch them, or perhaps it does not matter if he leaves them to spoil?


Answer

In Tractate Chullin (91a) we are informed that the reason for
Ya’acov remaining alone on the other side of the river was in ordser to recover some
small utensils that he had forgotten. Had he not gone back, they would have been
destroyed. From here we learn that the righteous are concerned about the goods Hashem has
deposited with them, to the extent of putting themselves at risk for their safety. We also
derive that such action is not obligatory, being considered going beyond the letter of the
law (Ya’acov’s deed is considered righteous).

The Rambam (Hilchos Melochim 6:8-10) explains that the Torah forbade cutting down fruit
trees in a destructive manner. However, if the roots of this tree are harming the
neighbor’s property or causing any other form of damage, or the wood of the tree is
worth more than its fruit crop, one may cut it down. Similarly, destroying other items of
property is only forbidden if this is purely destructive. The prohibition is confined to
active destruction. Refraining from passive destruction – though lack of action
– is only midas chassidus (a pious act).

THEREFORE, Zevulun has no obligation to go back to retrieve the
tomatoes. If he does, he is considered to have acted righteously.

Whilst we are on the subject, let us discuss the common problem of what to do if one
wishes to build an extension to one’s home and a fruit tree stands on the site. Since
one is cutting down the tree in order to make room for (the more valuable) home extension,
it would appear that this may even be performed by a Jew. The Rosh (in Bovo Kamo) is of
the opinion that if one needs the site of the fruit tree, one may cut it down. However,
the Chasam Sofer (Responsa to Yoreh De’ah, No. 102) explains that one is obligated to
transplant the tree with its roots and surrounding earth in order to make way for the
building, if at all possible (arguing with the She’elos Ya’avetz, who holds that
such a transfer does not constitute uprooting the tree and is always permissible).

One should further be aware that uprooting fruit trees carries with it an element of
danger (Acharonim, based on Will of R. Yehuda Hachosid). They therefore recommend that (a)
one should ask a non-Jew to cut the tree down, (b) one should transfer ownership of the non-Jew
before he cuts it down. Never cut down a fruit tree for no reason..