Kiddushin, Daf Lammed Tet, Part 2
Introduction
The Talmud continues to discuss the status of orlah (fruit during the first three years of the tree s growth) outside of Israel.
אמר רבי אסי אמר ר’ יוחנן ערלה בח"ל הלכה למשה מסיני
א"ל ר’ זירא לרבי אסי והתניא ספק ערלה בארץ אסור בסוריא מותר (בחוצה לארץ יורד ולוקט) אישתומם כשעה חדא א"ל אימא כך נאמר ספיקא מותר ודאה אסור
R. Assi said in the name of R. Yohanan: [The prohibition of] orlah outside of the Land is a halakhah of Moses from Sinai.
R. Zera said to R. Assi: But have we not taught: Doubtful orlah is forbidden in the Land but permitted in Syria.
He was quiet for a moment. [Then] he answered him: Say it [the halakhah of Moses from Sinai] was stated [in the following way]: Doubtful [orlah] is permitted [outside the Land], certain [orlah] is forbidden.
R. Yohanan rules that the prohibition of orlah outside the Land is a halakhah to Moses at Sinai. This is a status almost akin to the status of prohibited by the Torah. But R. Zera raises a difficulty on this position. Doubtful orlah is permitted outside the Land. This would seem to mean the prohibition of certain orlah is lower than that of a halakhah of Moses from Sinai. R. Assi responds by including the distinction between doubtful and certain orlah into the halakhah of Moses from Sinai. In other words, when the halakhah was given to Moses, it reflected the same halakhah found in the baraita.
אמר רבי אסי אמר רבי יוחנן לוקין על הכלאים דבר תורה
אמר ליה רבי אלעזר בר’ יוסי והאנן תנן הכלאים מדברי סופרים לא קשיא כאן בכלאי הכרם כאן בהרכבת האילן
R. Assi said in the name of R. Yohanan: One is lashed for [violating the prohibition of] kilayim [outside the Land] by Torah law.
R. Elazar b. R. Yose said to him: But have we not taught, kilayim [is forbidden] by the words of the scribes?
There is no difficulty: the one refers to kilayim of the vineyard, and the other to grafting onto a tree.
In this second statement by R. Assi in the name of R. Yohanan, the sage claims that kilayim is prohibited by the Torah outside of Israel. He expresses this by referring to the punishment for the transgression a normal way for the rabbis to express the level of a prohibition. If the prohibition is considered to be from the Torah, then it is theoretically punished by lashes.
This again contradicts the baraita we saw earlier, which stated that kilayim outside of Israel is only a rabbinic prohibition.
The answer is that there are several different types of kilayim. One is the prohibition of planting seeds in a vineyard (Deuteronomy 22:9). This prohibition is only derabanan outside the Land. The other is the prohibition of grafting one tree onto the other, which as we shall see, is operative on all places, even outside the Land.
כדשמואל דאמר שמואל (ויקרא יט, יט) את חקתי תשמורו חוקים שחקקתי לך כבר (ויקרא יט, יט) בהמתך לא תרביע כלאים שדך לא תזרע מה בהמתך בהרבעה אף שדך בהרכבה ומה בהמתך נוהג בין בארץ בין בח"ל אף שדך נוהג בין בארץ בין בח"ל
ואלא הכתיב שדך ההוא למעוטי זרעים שבח"ל
As Shmuel said, for Shmuel said: My statutes you shall keep (Leviticus 19:19): the statutes which I have already decreed for you. You shall not let your cattle gender with a diverse kind; you shall not sow your field with two kinds of seed (ibid). Just as [the prohibition of] your cattle [means] by copulation, so your field means by grafting; and just as [the law in regard to] your cattle is observed both inside and outside the Land, so is [that concerning] your field observed inside and outside the Land.
But is it not written your field !
That is to exclude [diverse] seeds in outside the Land.
Shmuel reads Leviticus 19:19 as referring to the unnatural joining of two different kinds two kinds of animals or two kinds of trees. Both of these prohibitions are practiced both in and outside the Land.
The problem with this ruling is that the Torah says your field which seems to refer to a field that is in the land of Israel, where Israel receives their biblical inheritance.
The Talmud says that this exclusion refers only to the other kilayim prohibition of planting diverse seeds together. This prohibition is operative only in the Land. So there are three prohibitions: 1) planting seeds in a vineyard. This is prohibited by the rabbis outside the Land. 2) Grafting. This is prohibited by the Torah outside the Land. 3) Planting diverse seeds in close proximity. This is permitted outside the Land.