Shailah of the Week by Rabbi Zvi Nussbaum
Rabbinic Coordinator, Kosher Hotline Administrator for the Orthodox Union
Shulchan Aruch (YD 294:8-9) writes that although the laws of orlah apply both inside and outside the land of Israel, there is a fundamental difference between them. In Israel, orlah is a Torah prohibition that is derived directly from the text. Therefore, in cases of doubt relating to orlah in Israel the fruit are forbidden. However, outside of Israel, the source of the prohibition is a halacha l’Moshe mi’Sinai (laws given to Moshe that were not written in the Torah), and in all situations of doubt we are lenient.
The Beit Yosef points out that ordinarily one must be stringent whenever there is a doubt concerning a halacha l’Moshe mi’Sinai, just as one would with any other Torah prohibition. However, in the case of orlah outside of Israel, the halacha taught to Moshe was specifically that only fruit that are certainly orlah are forbidden, but whenever there is any doubt, the fruit are permitted.
Pit’chei Teshuva (YD 294:3) adds that even when the tree was known to be orlah, and a doubt has now arisen that its status might have changed, we are lenient, even though this type of doubt would not allow for leniency in other areas of halacha. Therefore, if one forgot when they planted a tree outside of Israel and cannot figure out when the three years of orlah have ended, the halacha is that the fruit are permitted.