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Bava Basra, 19

BAVA BASRA 19 (26 Nisan) - has been dedicated by Mr. Avi Berger (Queens, N.Y.) in memory of his mother, Leah bas Michel Mordechai in honor of her Yahrzeit.


OPINIONS: The Mishnah states that one may not dig a Bor (pit) next to the Bor of his neighbor unless he distances his Bor at least three Tefachim from the wall of his neighbor's Bor, "and plasters it with his plaster." The Gemara asks whether the Mishnah means that he must distance himself by at least three Tefachim *and* plaster his Bor with plaster, or whether the Mishnah means that he may *either* distance his Bor *or* plaster it. The Gemara cites several proofs but does not answer its question conclusively.

What is the Halachah? Does the one who wants to build a Bor near his neighbor's Bor have to distance his Bor by three Tefachim *and* plaster it, or is he required to do only one of these two things?

(a) The RAMBAM (Hilchos Shechenim 9:1) writes that one must do both -- distance his Bor from his neighbor's Bor by three Tefachim *and* plaster his Bor with plaster.

There are two different explanations given for the ruling of the Rambam.

1. The MAGID MISHNAH explains that the Rambam maintains that since the Gemara states that "it is obvious that the Mishnah means [that the person building the Bor must distance his Bor] '*and* plaster it'," that is the Gemara's conclusion. Even though the Gemara proceeds to refute this, the fact that the Gemara said that this is obviously the meaning of the Mishnah indicates that this is the Halachah. This is also the way the RITVA explains the ruling of the Rambam. He adds that when the Gemara refutes its assumption that the Mishnah requires both conditions, the Gemara is merely suggesting possible refutations ("Dilma"), but it is not refuting it conclusively.

This is also the view of RABEINU YONAH, who writes that when the Gemara refutes its assumption by saying "Dilma" ("perhaps..."), it is merely suggesting possible ways of refuting the assumption, but it is not conclusively refuting it. This also seems to be view the view of the RIF, who quotes the wording of the Mishnah ("v'Sad b'Sid") but does not mention the Gemara's question.

2. The VILNA GA'ON (in Bi'ur ha'Gra to Choshen Mishpat 155:51) explains that the Rambam is consistent with his own view regarding unresolved questions in the Gemara. The Rambam maintains that in any case of a Safek in the Gemara, we rule stringently. Even if the Safek is a question that the Gemara asks but does not resolve ("Ba'ayah d'Lo Ifshita"), nevertheless the Rambam maintains that we act stringently. Thus, in the case of our Mishnah, the person digging the Bor must both distance his Bor from his neighbor's Bor by three Tefachim *and* cover it with plaster.

(However, the Bi'ur ha'Gra earlier (CM 155:26) -- when explaining the words of the Shulchan Aruch (who rules like the Rambam) -- explains like the Magid Mishnah who says that the Gemara's refutations of its initial assumption are only suggestions and not conclusive. See MA'AREI MEKOMOS of RAV CHAIM KARELENSTEIN who discusses this apparent contradiction in the words of the Vilna Ga'on.)

(b) The ROSH writes that since this question is unresolved, we cannot force the builder of the Bor to do both -- distance his Bor *and* plaster it -- out of doubt. Rather, it suffices for him to do one of the two things. This is also the ruling of the MORDECHAI (end of Bava Metzia) as cited by the BI'UR HA'GRA (CM 155:51).

The Vilna Ga'on writes further that the Rosh is consistent with his view that in any case like this one of an unresolved doubt in the Gemara, we rule leniently.

Regarding this dispute between the Rambam and Rosh with regard to how we rule (whether stringently or leniently) in a case of an unresolved doubt in the Gemara, the Vilna Ga'on (Bi'ur ha'Gra CM 155:8, in "Likut") writes that the reasoning of the Rambam is that since, mid'Oraisa, it is prohibited to cause damage to someone else's property, we therefore rule stringently in a case of doubt. (Where, however, the person went ahead and built his Bor adjacent to his neighbor's Bor and did not distance it, we do not obligate him to remove his Bor, because, as the Shulchan Aruch there writes, "ha'Motzi me'Chaveiro Alav ha'Ra'ayah.") The Rosh, on the other hand, holds that even though it the prohibition to cause damage to someone else's property is mid'Oraisa, since it is a monetary matter we rule leniently, as in all doubts of monetary matters. The Rambam, though, maintains that we rule leniently in monetary matters only with regard to extracting money from someone who is "Muchzak," since there is a principle of "ha'Motzi me'Chaveiro Alav ha'Ra'ayah."


QUESTION: The Gemara says that when one replants a shoot of a grapevine, it is not permitted to sow wheat seeds directly over the replanted vine shoots, because of the Isur of "Kela'im. However, one may sow wheat seeds to the sides of the replanted vine shoot.

Even though the seeds will not take root to the sides (where the vine shoot is), nevertheless the roots of the vine shoot themselves take root to the sides, and thus there should still be a problem of Kela'im! (RAMBAN, RABEINU YONAH, RASHBA, CHIDUSHEI HA'RAN, RITVA (19a), TOSFOS RID)


(a) The RAMBAN, RAN, and RITVA answer that it is not considered "Harkavah" (grafting) when the seeds and roots of wheat are not mixed with the *grapevine* itself. When the seeds of wheat are mixed with the *roots* of the grapevine, even though the roots intermingle, this is not considered Kela'im. Only when the roots of the wheat mix with the grapevine itself is it considered Kela'im.

The Ramban adds that the reason it is not considered Kela'im when the roots of one plant are mingling only with the roots of the other (and not with the plant itself) is because in such a case, the roots of each plant are absorbing nourishment from the ground and producing a fruit that is not grafted. (The Ramban writes, though, that this reason needs further clarification.)

(b) RABEINU YONAH and the RASHBA answer that the roots of a grapevine descend lower than three Tefachim into the ground (and they do not ascend upwards at all), and thus the roots that grow from the wheat seeds do not mingle with the roots of the grapevine. This is also the explanation of the RAN on the Rif in Kidushin (end of the first Perek).

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