Question: I have a tree in its second year, so that its fruit is orla. Can I suggest to my non-Jewish worker to take it?

Answer: It is not only forbidden to eat orla fruit but even to benefit from them. The main non-eating benefits discussed regarding issurei hana’ah are physical (e.g., using orla for paint or fuel – Pesachim 22b), feeding animals (ibid. 22a) and selling.

The Rambam (Ma’achalot Assurot 8:16) forbids giving issurei hana’ah to non-Jews as a present. The Kolbo (92) points out that this prohibition is implicit, according to some, in the Torah’s formulation of the prohibition of neveila (meat of an animal that was not shechted properly) – one must not eat it but give it to a non-Jew who enjoys special standing (ger toshav) or sell it to another non-Jew (Devarim 14:21). Rav Avahu (Pesachim 21b) learns, according to R. Meir, that had it been forbidden to benefit from neveila, it would have been forbidden to give it to a non-Jew.

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Rabbi Daniel Mann

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The logic is that giving presents causes reciprocity in some way/time, making the present a cause of benefit to the giver, and this is expanded to less direct cases. The Rama (Yoreh Deah 294:8) forbids helping a non-Jew pick his orla fruit, even for free, because the owner will be grateful. There is more room for leniency when the benefit is indirect. For one, the Avnei Nezer (Orach Chayim 489) posits that if one did not intend to enjoy the recipient’s gratefulness, it is permitted to provide him the orla. However, it is difficult for one who gives a present to determine he has no intention for beneficial good will, and such a situation can also create other halachic problems (ibid.), which it is unclear how easy it is to overcome (see Beit She’arim, OC 61; Chatam Sofer, Avoda Zara 64b).

The way to do things is not to present the orla as a gift, but to make your worker aware of the situation. Explain that you must not benefit from the fruit, that if no one takes them you will throw them out, and therefore you have nothing to lose (and even a little toil to gain) if someone, including him, takes them.

The following is the main source that allowing people to take issurei hana’ah, as opposed to giving a gift, is permitted. The mishna (Bava Kama 108b-109a) rules on one whose father used a neder to preclude his son from benefit from his property, and then the father died, and the son inherited the property. The son may indeed not benefit from the property, but he can direct it to his relative who may benefit from it. The Ran (Nedarim 47a) asks why this transfer of the property to the person of the son’s choice is not forbidden benefit. The Ran answers that the son is not allowed to give it to them regularly. Rather, he is to explain to them that he cannot use it himself, and therefore, from his perspective, they may as well take it. The Shach (YD 223:4) accepts this Ran, including that the son must mention that he has no use for the property. If you do so regarding the orla, it should work for you as well.

There are times that one may not give to a non-Jew, an object that is forbidden for Jews out of a concern that it will end up in the hands of Jews who will not realize the object’s status (see Avoda Zara 65b). However, this is not a broad concern, at least regarding things that people know need a kashrut check. Regarding orla, the gemara (Avoda Zara 21a)) and Shulchan Aruch (YD 294:14) allow people, in preparation of their trees producing orla, to sell or have a partnership with a non-Jew so that the non-Jew gets the fruit during the years of orla and the Jew gets them afterward. Rav Kook (Mishpat Kohen 6) says that such actions are permitted because they were done before the prohibited fruit existed, which would imply that at the stage you refer to, it would be a problem to make such fruit available. However, he discussed transferring an orchard of orla, which is meant for commercial use, which may go to Jews, as opposed to your small amount of fruit meant for personal consumption. The fact that you will mention that Jews may not eat it is also helpful.