#838: Stuffing of Sinners, Part II
Jewish farmers are not obligated to demarcate trees whose fruit are prohibited due to orlah (“uncircumcised” trees within the first three years of growth) to prevent would-be thieves from consuming forbidden fruit. Freedom from the responsibility to protect others from sinning in this manner is concisely stated by the tanna (Mishnaic sage) Rabbi Shimon, “Halitehu l’rasha veyamus” (Stuff the wicked so he may die, as explained in the previous Halachah #837).
This halachah demands explanation, says the Chavos Yair (17th century posek), since it does not seem to jive with other halachos that call for love, accountability—or at the least rebuke—of the failings of our Jewish brethren (see Halachah #397 on the concepts of ahavas Yisroel—love of a fellow Jew and tochacha—rebuke—also Halachah #209 and Halachah #728 regarding lifnei iver—placing a stumbling block before the blind) .
The Chavos Yair, among other poskim, offers elucidation on the particular circumstances of stolen orlah that place it outside the purview of normal communal responsibility demanded by the Torah: we are speaking exclusively of a passive association with others’ wrongdoing—refraining from marking the forbidden fruit. However, in situations which involve active participation in another’s sin, we are forbidden from tripping up another.
Another possible argument that frees the owner from preventing orlah theft is that the situation is only a potential threat by an anonymous transgressor, and even so, the would-be thief would already be sinning (by stealing), and the preventative measures would merely avert a second crime. But in any situation where a person has prior knowledge of another specific Jew’s intent to sin, and it is possible to prevent it, they are, in fact, required to take action.
The Rambam (Rabbi Moshe ben Maimon, 12th century) in his Mishnaic commentary clarifies Rabbi Shimon’s statement: Since the thief is transgressing a much greater aveirah (sin) of gezel (theft), we are less concerned with the comparatively lesser prohibition of orlah. Others further explain that by stealing orlah, the thief is consuming “holy” produce, but not actually committing the offense of withholding property from a flesh-and-blood fellowman; a warning against taking from this particular tree might well cause the thief to take from a non-orlah tree and commit a greater transgression. In addition, by stealing, the offender is indicating that warnings against lesser aveiros such as orlah would be fruitless, exempting the owner from making an effort to prevent it.
However, it is pointed out that the crook in this case is termed a rasha (a wicked person), who willfully and regularly transgresses. Otherwise, all the mitzvos of preventing a fellow Jew from transgressing apply, as explained above.