Regarding this recent post, I received an email from my beloved friend, a man with the head and capabilities of a Rosh Yeshiva, who wears the garb of a regular guy, one Rav Zevi Reinitz of Yerushalayim Ir Hakodesh, who explained as follows:
The Rambam in his commentary on the mishna writes:
"ורבן שמעון בן גמליאל אומר שלא הצרכנו לרשום כרם רבעי וערלה כדי שלא יאכלו מהן אלא בשנת השמטה שהיא הפקר ויד כל אדם פשוטה בגנות ובכרמים. אבל שלא בשנת השמטה אין צריך לצינן, לפי שאין רשות לכל אדם לפשוט ידו ולאכול דבר שאינו שלו, ומי שעבר ואכל הרי זה גזלן ואין לנו לעשות תקנה לגזלן כדי שלא יכשל מפני שעון גזל חמור יותר, ודברים אלו נכונים"
The reason one need not mark off the forbidden trees during a non-shmitta year is because nobody has permission to take, and someone who takes is a gazlan and it is not incumbent upon us to make a tikkun for the gazlan [by marking off the trees] in order that he not stumble [i.e. sin] because the sin of stealing is very severe.
The simple straightforward meaning of this Rambam [as understood by many] is that since together with the sin of eating orlah/revai, he will also transgress the [greater] sin of stealing, we make no effort to stop this oisvarf [Greek for "lousy guy"]. ואין לנו לעשות תקנה לגזלן כדי שלא יכשל - we are not going to take measures to help this gazlan in order that he not sin by eating orlah/revai. If he takes from a tree that is orlah/revai, at the same time he will be transgressing the sin of stealing ["שלא יכשל " refers to gezel] and this we don't care to prevent because stealing is such a severe sin.
However, our friend and Gaon R' Zevi, has a different reading. When the Rambam says כדי שלא יכשל he is NOT referring to the sin of stealing but to the sin of orlah/revai. Meaning, if we don't mark off the trees and he ends up eating orlah/revai - he will NOT transgress the sin of stealing because orlah and revai don't belong to this owner of the orchard [orlah is אסור בהנאה and revai is like ma'aser sheni which is ממון גבוה] and there is no איסור גזילה. Marking off the forbidden trees will cause him to avoid those trees and go to non-orlah/revai trees, thus resulting in a sin of stealing. And that we don't want because, as the Rambam writes, מפני שעון גזל חמור יותר.
So it emerges that marking off the trees will prevent a lesser sin eating orlah/revai and cause a greater sin of stealing. It is this or that. So by not marking off the forbidden trees we are in effect HELPING him by creating a situation where he will commit a lesser sin [eating orlah/revai and not stealing].
This answers our question: How come we are not concerned with a Jew who is about to sin and refrain from trying to stop him? What about ערבות? The answer is that in this instance we ARE stopping him by trying to prevent a more severe sin of stealing.
According to this, when the gemara says הלעיטהו לרשע וימות we refer not to the sin of stealing but to the [lesser] sin of eating orlah/revai.
Wonder of wonders!!
This explanation which was formulated by the brilliant mind of Rav Zevi, was already offered by the great Gaon and Rov of Yerushalayim, Rav Tzvi Pesach Frank ztz"l [Har Tzvi Yo"d p. 113-114].
Hopefully in a future post this conversation will continue because a great talmid chochom questioned this approach and Hagaon R' Zevi took about his battle gear and fiercely [in his quiet unassuming way] defended it.
Stay tuned!!
