Babylonian Talmud: Tractate Baba Bathra

Folio 82a

the taking and the bringing must be performed by the same man; and in the present case, this has not been done. R. Aha son of Awia said to R. Ashi: Behold, are not these really scriptural verses?¹  Let him recite them!²  He replied unto him: [One must not recite the verses] because it would appear [as telling] a lie. R. Mesharsheya the son of R. Hiyya said: [Because the fruit] might [mistakenly] be excluded from the heave-offering and from the tithe.³

[IF THE TREES] GREW LARGE [THE LANDOWNER] MUST NOT CUT DOWN THEIR BRANCHES etc. What is considered [to be] from the stem and what is considered [to be] from the roots? — R. Johanan said: Whatever is exposed⁴  to the sun is of the stem, and whatever is not exposed⁵  to the sun is of the roots. [How can it be said that all that grows from the stem belongs to the buyer?] Is there not cause to apprehend that the ground might produce alluvium [covering up the knots of the lowest shoots] and that [the buyer] would say [to the landowner]: 'You have sold me three [trees] and I have, [therefore, a share of the] ground'?⁶  — But R. Nahman replied: [The buyer] must cut [them] off.⁷  R. Johanan also said: He must cut [them] off.

R. Nahman said: We have it by tradition [that] a palm-tree has no stem.⁸  R. Zebid was of the opinion that this means [that] the owner of the palm-tree has no [rights to that which grows from the] stem, because since [the tree] is destined [when it dries up] to be dug and taken out with the roots,⁹  [the buyer] discards [the shoots] from his mind.¹⁰  R. Papa, [however], raised [the following] difficulty: Surely, [the case of him who] BUYS TWO TREES [includes also such trees] as are destined to be dug up and taken out with the roots¹¹  and [yet] the [Mishnah] teaches that [THE BUYER] HAS [A TITLE TO] THE STEM!¹²  — But, said R. Papa, [the reason why] the owner of the palm-tree has no [title to the] stem [is]¹³  because the stem does not [usually] produce [any shoots].¹⁴

According to R. Zebid,¹⁵  however, [there remains] the difficulty of our Mishnah!¹⁶  — [Our Mishnah deals with the case] where [the trees] were sold for five years.¹⁷

ONE WHO BOUGHT THREE [TREES] HAS [IMPLICITLY] ACQUIRED [OWNERSHIP OF THE] GROUND. And how much [ground]? — R. Hiyya b. Abba said in the name of R. Johanan: He has acquired [the ownership of the ground] beneath [the trees] and between them, and round about¹⁸  them

1. The bikkurim declaration consists of vv 5-10 of Deut. XXVI (Cf. p. 328, n. 10).
2. One may at any time read Scriptural verses. Why then should one be restricted to R. Jose's decision of bringing the fruit without reciting the declaration?
3. Seeing that the declaration had been recited over the fruit, it would be assumed that they are genuine bikkurim which are exempt from the priestly and Levitical gifts.
4. I.e., all that part of the tree which is above the ground.
5. I.e., the part covered by the soil.
6. The shoots, having been covered by the alluvium at their knots, would appear as separated trees, growing from the ground independently; and the possession of three trees entitles one to a share of the field.
7. Our Mishnah gives the buyer the right over the shoots for the purpose of cutting them off. They must not, however, remain attached to the tree.
8. This is explained in the Gemara.
9. Unlike other trees, which can be made to grow afresh when their branches and upper sections dry up, by cutting them down to their stems, the palm tree, like the cedar (supra 80b). cannot be made to grow afresh out of its cut stems. They are, therefore, ultimately useful as wood only.
10. He does not expect to have any benefit from the shoots that may never grow from the tree, which is likely, at any moment, to dry up beyond all possibility of growing afresh.
11. Since no special trees are specified, all kinds of trees are obviously included.
12. How, then, could R. Zebid assume that the buyer of a palm-tree has no title to the stem?
13. Not that given by P. Zebid, but 'because etc.'
14. And if, sometimes, it happens that shoots do grow, they must be regarded as the property of the owner of the land. Our Mishnah, which gives the buyer title to the stem, speaks of trees the stems of which do usually produce shoots.
15. Who stated that stems of palm.trees produce shoots.
16. Which speaks of all kinds of trees, the stems of which produce shoots, and gives the buyer title to the shoots of the stems.
17. In the case of a sale for a specified number of years, during which a dried up tree is to be replaced by a sound one, the buyer does expect the benefit from any shoots that may grow out of the stem. Where, however, the sale is for no definite period, the buyer is aware that the tree will not be replaced though at any moment it might dry op beyond hope of recovery. He does not, therefore, expect to benefit from any shoots that may possibly grow before the tree terminated its growing existence.
18. Lit., 'outside'.

as much as is required for a gatherer and his basket.

R. Eleazar raised a difficulty: Since he has no [right of] passage,¹  would he have [a right to the ground required by a] gatherer and his basket? [If] he has no [right of] passage because [the trees grow in] another field,²  should he, then, have [a right to the ground required for a] gatherer and his basket?³

R. Zera said: From the words of our Master⁴  we may infer that only [when the buyer has purchased] three [trees] does he have no [right of] passage,⁵  but [if he has purchased] two [trees] he does have [the right of passage]; for he can say [to the landowner]: They stand in your [own] field, [and since you have sold me trees therein, you must also allow me access to them]. R. Nahman b. Isaac said to Raba: Does this imply that R. Eleazar⁶  is in disagreement with Samuel his master? For Samuel said:⁷  The law is in accordance with R. Akiba's opinion⁸  that he who sells does so with a kindly feeling⁹  [and one selling with a kindly feeling would surely include in the sale a right of passage]! He replied to him: [R. Eleazar may agree with Samuel,¹⁰  but] our Mishnah cannot be attributed to R. Akiba.¹¹  How is this proved? — Because it states: IF THEY GREW LARGE, [THE LANDOWNER] MAY CUT DOWN THEIR BRANCHES: Now, were you minded [to attribute the Mishnah to] R. Akiba. why may [the landowner] cut down their branches? Surely [R. Akiba] said that he who sells does so with kindly feelings! — He said unto him: It is possible that R. Akiba said [so] in the case [only] of a cistern and a cellar¹²  because these do not cause deterioration of the ground, [but] did you hear him [say the same thing] in the case of a tree [which does cause deterioration to the field]?¹³  Does not R. Akiba [in fact] agree that in [the case of] a tree [whose boughs] hang over the field of one's neighbour, [the latter] may cut off [the overhanging branches to such a height as will allow the] full [passage of the] handle that protrudes over the plough!¹⁴

It has been taught in agreement with R. Hiyya b. Abba: He [the buyer of three trees] has acquired ownership [of the ground] beneath them, and between them and round about¹⁵  them as much as is required for a gatherer and his basket.

Abaye said to R. Joseph: Who sows on that [land reserved for] the gatherer and his basket?¹⁶  He replied: You have learned it:¹⁷  The external [field owner¹⁸] sows the pathway.¹⁹  He said unto him: Are these two cases alike? There,²⁰  the buyer is not involved in any loss; but here,²¹  the owner of the tree²²  is involved in a loss; for he can point out [to the seller] that the fruit [that would drop on the scattered seed] would be soiled. This case¹⁸  rather resembles the final clause [of the Mishnah,²³  in accordance with which] neither the one nor the other may sow [on the allotted space].

It has been taught in agreement with the opinion of Abaye: He has acquired [the ground] beneath them, and between them, and round about²⁴  them as much as is required for the gatherer and his basket, and neither of them is allowed to sow it.

[If the buyer of three trees is to acquire possession of the ground]. how much [space] must there be between [the trees]?²⁵  — R. Joseph said in the name of Rab Judah in the name of Samuel: [A distance] of four to eight cubits [between any two trees]. Raba said in the name of R. Nahman in the name of Samuel: From eight to sixteen [cubits]. Abaye said to R. Joseph: Do not dispute with R. Nahman, for we learnt a Mishnah that is in agreement with him. For we learnt:²⁶  He who plants his vineyard [and leaves distances of] sixteen cubits [between the rows] may insert seed there.²⁷  R. Judah said: It occurred in Zalmon²⁸  that one planted his vineyard, [leaving distances of] sixteen cubits [between the rows], and turned the branches of [every] two [adjacent] rows towards one side,²⁹  and sowed the clearing. In the following year he turned the branches towards the spot sown [in the previous year], and sowed the uncultivated [spaces].³⁰  When the matter was reported to the Sages they allowed it.³¹  He [R. Joseph] said unto him: I am not aware [of this]: but there was a case

1. Through the seller's field; unless he has made with him specific arrangements for the purpose, v. supra 64a.
2. The three trees, through which the buyer has acquired a share in the field, are regarded as growing in a field of their own, independent of the rest of the field which belongs to the landowner.
3. A pathway is more necessary than a space for the gatherer and his basket. If he has no title to the former, how much less to the latter!
4. R. Eleazar; who gave his reason because the trees are in 'another field'.
5. Because three trees are sold together with a certain portion of the ground (cf. supra), and this portion is regarded as a small field by itself, distinct from the larger field of which it forms a part.
6. Who denies right of passage to one who has bought three trees.
7. Supra 65a.
8. Supra 37a.
9. Lit., 'beautiful eye'.
10. That right of passage is included in the sale of the trees.
11. But to the Rabbis, who exclude right of passage from the sale of trees. R. Eleazar's objection, supra, will accordingly not be based on the opinion he himself holds, but on that of the Rabbis, and follow their line of reasoning.
12. Supra 71a.
13. As in the case of our Mishnah, v. supra p. 282.
14. Ibid. 27b.
15. V. p. 333, n. 4.
16. The landowner or the buyer of the trees?
17. Cf. infra 99b.
18. Who sold an interior field, and retained for himself the exterior one.
19. Infra 99b. Here, too, the landowner sows the space allotted to the gatherer and his basket.
20. In the case of the sowing of the pathway.
21. In the case of sowing on the space allotted to the gatherer and his basket.
22. Cf. BaH, a.l.
23. Mishnah, infra 99b, dealing with a pathway allowed by the court, to the owner of the inner field, with the consent of the two partners.
24. V. p. 333, n. 4.
25. If they are too close to each other they would be regarded as a forest whose trees are for uprooting; if too scattered, they could not he regarded as a combination of trees.
26. Kil. IV, 9.
27. Between the rows. Because the wide spaces between the rows are not regarded as part of the vineyard where, in accordance with Deut. XXII, 9, seed must not be sown.
28. A locality near Shechem.
29. Away from the space between them; thus leaving, between every alternate pair of rows, a clearing of sixteen cubits in width.
30. Which in the previous year could not be sown on account of the branches which were encroaching on the required space of sixteen cubits.
31. Because the branches were turned away from the sown spaces which were sixteen cubits in extent. A space of less than sixteen cubits would have been regarded as part of the vineyard. This proves the correctness of R. Nahman's report that a space of sixteen cubits is required for a piece of ground to be regarded as a separate unit.