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Bava Basra, 81

BAVA BASRA 81 (28 Sivan) - dedicated by Rav Mordechai Rabin (Manchester/London/Yerushalayim), in honor of the Yahrzeit of his mother.


QUESTION: The Gemara explains that the verse "Asher Tavo me'Artzecha" (Devarim 26:2) -- written with regard to bringing Bikurim -- teaches that one does not bring Bikurim from fruit grown in Chutz la'Aretz.

Why does the Gemara need to derive from a verse that the Mitzvah of Bikurim does not apply to fruit grown in Chutz la'Aretz? Bikurim should be no different than all of the other "Mitzvos ha'Teluyos ba'Aretz," such as Terumos and Ma'aseros, which apply only to fruit that grew in Eretz Yisrael (as the Gemara in Kidushin 37a teaches)!

ANSWER: TOSFOS here (DH ha'Hu, in his second approach) answers in the name of RASHBA (the Rash mi'Shantz) that the Mitzvah of Bikurim is an obligation on the person who owns the fruit to bring it to the Mizbe'ach. It is not a Mitzvah on the produce of Eretz Yisrael requiring that a certain act be done with the produce before it is permitted to be eaten. He proves this from the fact that the rest of the fruit in the field is not prohibited from being eaten (like Tevel) before Bikurim are separated, and from the fact that Bikurim can be separated even before the fruit is picked, while it is still attached to the ground (and not yet considered "produce").

This approach answers another question. The Mishnah in Kelim (1:6) states that Eretz Yisrael has more Kedushah than all other lands. "In what way is it holier," asks the Mishnah, "because we bring from there the Korban ha'Omer, Bikurim, and Shtei ha'Lechem" which cannot be brought from any land outside of Eretz Yisrael.

Why does the Mishnah not mention that Eretz Yisrael is also holier because of the obligation to separate Terumos and Ma'aseros from produce that grows in Eretz Yisrael? (See Insights to Nedarim 22:1.)

According to Rashba cited by Tosfos, the reason the Mishnah does not mention the other "Mitzvos ha'Teluyos ba'Aretz" is because those Mitzvos are not an indication of the Kedushah of the land; rather, they are obligations that are incumbent upon the produce of Eretz Yisrael. That is, there is an Isur to eat fruit grown in Eretz Yisrael before separating Terumos and Ma'aseros, but the fact that Terumos and Ma'aseros must be separated is not a manifestation of the Kedushah of the land. The reason the Mishnah lists the Korban ha'Omer and Shtei ha'Lechem is because the fact that these items may be brought to the Beis ha'Mikdash only if they grew in Eretz Yisrael demonstrates the *Kedushah* of Eretz Yisrael. The Mitzvah of Bikurim, too, is practiced in Eretz Yisrael *not* because it is a "Mitzvah ha'Teluyah ba'Aretz," but rather because of the Kedushah of Eretz Yisrael. (See also Insights to Kidushin 37:1; this also answers the question of the VILNA GA'ON in ELIYAHU RABAH there in Kelim.)

QUESTION: According to the Chachamim, one who buys two trees in the field of his neighbor brings Bikurim but does not read the Parshah of Bikurim ("Mevi v'Eino Korei"). The RASHBAM explains that he does not read the Parshah of Bikurim because he did not acquire the land beneath the trees, and therefore the verse in the Parshah of Bikurim which says, "Asher Nasata Li" -- "And now I have brought the first of the fruits of *the land which You, HaSh-m, have given to me*" (Devarim 26:10) does not apply to these fruits, since they did not grow on a tree that was planted on land owned by the owner of the fruit.

Later (beginning of 81b, DH Mai Taima), when the Rashbam explains why according to Rebbi Meir a person is Mevi v'Eino Korei when he owns one tree (and, according to the Chachamim, a person is Mevi v'Eino Korei when he owns two trees), the Rashbam writes that he cannot read the Parshah of Bikurim because the verse says "Asher Tavi me'Artzecha" -- "And you shall take of the first of all the fruit of the earth, which you shall bring *from your land* that HaSh-m gives you" (Devarim 26:2). The Bikurim must be brought from the land owned by the owner of the fruit. As the Rashbam explains, the Gemara then asks that since the owner of a single tree does not own the land beneath it, just as he cannot read the Parshah of Bikurim he should also not have to bring Bikurim altogether, because this verse implies that one who does not own the land beneath the tree does not even *bring* Bikurim. The Gemara answers that there is a Safek whether one who buys one tree (or two trees according to the Chachamim) owns the land beneath it or not, and therefore, out of doubt, he must conduct himself stringently and bring Bikurim without reading the Parshah.

Why does the Rashbam cite a different verse there (81b) than the one he cites here (81a) to explain that one who buys two trees according to the Chachamim is Mevi v'Eino Korei? (RASHASH)

ANSWER: The Rashbam might have learned the Gemara the way the TOSFOS RID explains earlier (27a). The Tosfos Rid explains that the requirements for *bringing* Bikurim differ from the requirements for *reading the Parshah* of Bikurim. Although a person cannot read the Parshah of Bikurim unless he actually owns the land beneath the tree, nevertheless he can *bring* Bikurim even though he does not own the land, since he has permission to keep his tree there. The reason for this is because the verses that discuss bringing Bikurim ("Artzecha" (Devarim 26:2) and "Admascha" (Shemos 23:19)) exclude only fruit brought from trees planted on land that he has no permission to use (see Sukah 9a). The verse discussing *reading the Parshah* of Bikurim says "ha'Adamah Asher Nasata Li" (Devarim 26:10), which implies that the land was actually given to him and he owns it. (See Insights to Bava Basra 27:1:b.)

The Tosfos Rid learns this from the words of Reish Lakish later in Bava Basra (136a) as well as from the reply of Rebbi Elazar in our Gemara. When Rebbi Elazar was asked why does a person bring Bikurim when he owns two trees if he does not read the Parshah, Rebbi Elazar replied that the "early authorities did not tell the reason, and you are asking me to teach it in the Beis Midrash?!" This implies that there *is* a reason to distinguish between bringing Bikurim and reading the Parshah of Bikurim, but Rebbi Elazar did not want to teach it in the Beis Midrash. Even though Rabah explained that the Chachamim were uncertain whether a person acquires the land beneath one tree and that is why one does not read the Parshah of Bikurim, Rebbi Elazar had a different explanation. His explanation was, as we explained above, that we do not compare the obligation to bring Bikurim to the obligation to read the Parshah of Bikurim.

This also seems to be the opinion of the Rashbam later (136b, DH Mevi v'Eino Korei), who writes clearly that one does not need to own the land beneath the tree in order to bring Bikurim, but he does need to own the land in order to read the Parshah of Bikurim.

The Rashbam later (81b) is explaining the opinion of those who asked Rebbi Elazar why there should be a difference between bringing Bikurim and reading the Parshah of Bikurim. They held like Rabah, who maintains that we cannot distinguish between the two. Therefore, the Rashbam explains that they learn from "Artzecha" (Devarim 26:2) that one cannot even bring Bikurim if he does not actually own the land beneath the tree. Here (81a), though, the Rashbam is explaining the Mishnah according to the Halachic view, which is that of Rebbi Elazar, who holds that only the verse of "ha'Adamah Asher Nasata Li," which pertains to reading the Parshah, requires that the person own the land beneath the tree, but in order to bring Bikurim, he need not own the land.


QUESTION: The Gemara explains that there is a doubt whether a person who buys two trees in his neighbor's field acquires the land beneath the trees or not. Because of this doubt, he must bring Bikurim but he does not recite the Parshah of Bikurim ("Mevi v'Eino Korei").

Our Mishnah, however, teaches that with regard to monetary law, the rule is that the buyer does *not* have rights to the land beneath the trees, because of the principle of "ha'Motzi me'Chaveiro Alav ha'Ra'ayah." Because of the doubt, the seller is deemed to own the land such that he may use the land beneath the trees for his own purposes, such as to be Mekadesh a woman, or to buy an Esrog. If the land beneath the trees is deemed to belong to the seller because of "ha'Motzi me'Chaveiro Alav ha'Ra'ayah," then why does the *buyer* need to bring Bikurim because of the Safek? Once we apply the rule of "ha'Motzi me'Chaveiro," the land is not the buyer's and he should not be obligated to bring Bikurim even mi'Safek! (SHA'AREI YOSHER 5:6, KOVETZ SHI'URIM Bava Basra #97)

ANSWER: RAV ELCHANAN WASSERMAN in KOVETZ HE'OROS (#71) explains that the principle of "ha'Motzi me'Chaveiro Alav ha'Ra'ayah" does not entitle a person to the rights to an object that might not be his. The ownership of the object does not change, but, rather, "ha'Motzi me'Chaveiro Alav ha'Ra'ayah" gives the person the rights to use the object and to act as though it belonged to him (such that he may be Mekadesh a woman with it, or buy an Esrog with it). With regard to Bikurim, though, we look at whether the land actually belongs to the person or not, and that remains a Safek.

What, though, is the difference between Bikurim and Kidushin or buying an Esrog? The Sha'arei Yosher (5:8) and Kovetz Shi'urim (#97) explain that there are two separate definitions of ownership: first, the person *has title* to an object, because he purchased it or acquired it in some other way; second, the person is given full rights of usage of the object according to monetary law, from a Halachic point of view. With regard to most Isurim (such as Kidushin and Esrog), the definition of ownership depends on whether he owns it with regard to its usage for monetary matters, Mamonos. If the object is his by monetary law, it is then his for Kidushin and Esrog as well. With regard to Bikurim, though, the definition of ownership does not depend on his rights of usage with regard to Mamonos but on having actual title to the property.

The Sha'arei Yosher explains the reason for this difference. His intention might be as follows. When an object is used for effecting Kidushin or for the Mitzvah of Esrog, he is actually *using* the object of doubtful ownership for the Mitzvah. In contrast, with regard to Bikurim, the object of doubtful ownership (i.e. the land) is not being used for the Mitzvah at all. Rather, it is a *precondition* for the Mitzvah; the *land* must belong to the owner of the fruit in order for him to bring the *fruit* (which is certainly his) as Bikurim and read Parshas Bikurim. When the Torah requires ownership of an object that is not being used in the Mitzvah as a precondition for performing a Mitzvah, it is assumed that the Torah is not interested in who has rights of *usage* of the object, but in who has actual *title* to the object.

The Sha'arei Yosher adds that if the owner of the land purchases the fruit from the owner of the trees, he probably *would* be required to bring Bikurim and read the Parshah of Bikurim -- at least according to those who maintain that a Kinyan Peros (the right of usage) is like Kinyan ha'Guf with regard to Bikurim (see Bava Basra 136a). Since he has unquestionable rights to the use of the land, the land is his as far as Bikurim is concerned even if he is not the "true" owner of the land.

(It is possible to cast doubt on this postulate by differentiating between one who has the rights of usage because he purchased those rights (as in the case of Kinyan Peros), and one who has rights of usage out of doubt, as in our case. Perhaps one who uses the property out of doubt is still not the "owner" of rights of usage, but simply the default user of the object. Consequently, the object (the land, in our case) cannot be called "his.")

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