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Bava Basra 82

BAVA BASRA 82-85 - Sponsored by a generous grant from an anonymous donor. Kollel Iyun Hadaf is indebted to him for his encouragement and support and prays that Hashem will repay him in kind.



(a) Rav Acha B'rei de'Rav Ivya asked Rav Ashi why the Tana'im rule 'Meivi ve'Eino Korei' (for the reason that we gave earlier), why should the owner not read the Parshah even when there is a Safek; to which Rav Ashi replied - that it would look false to recite 'the ground which You gave Me', when the ground may not actually belong to him (and David Hamelech wrote in Tehilim ''Dover Shekarim Lo Yikon le'Neged Einai").

(b) We are not worried about Mechzi ke'Shikra whenever we Lein the Parshah of Bikurim - because, unlike the person who actually brings Bikurim, we read it as a third party.

(c) Rav Mesharshaya B'rei de'Rav Chiya is not worried about Mechzi ke'Shikra. The reason he gives for the ruling of 'Eino Korei' is - because if one were to read the Parshah, one would no longer consider the fruit a Safek, and this would cause them to exempt the fruit from Ma'asros.

(a) We learned in our Mishnah (in connection with Shimon, who purchased two trees from Reuven), 'ha'Oleh min ha'Geza, She'lo, u'min ha'Sharashim, shel Ba'al ha'Karka'. Rebbi Yochanan interprets 'min ha'Geza' as - whatever sees the sun, and 'min ha'Sharashim' as whatever is underground.

(b) The problem with this explanation as it stands is - that sometimes the wind will blow earth over part of a branch that is close to the ground, giving the impression that there are three trees growing there, and not just two, and that consequently, the purchaser will claim that he bought three trees, and that the relevant land therefore belongs to him.

(c) Rav Nachman and Rebbi Yochanan therefore reinterpret 'Harei Eilu She'lo' to mean (not that he may keep it, but) - that the seller can force him to cut it down, in which case it will be his to benefit from.

(a) Rav Nachman stated (in connection with Shimon who purchased one or two trees in Reuven's field) 'Naktinan, Dekel Ein Lo Geza'. 'Naktinan' means - 'This is what we heard from our Rebbes'.

(b) Rav Z'vid explains Rav Nachman's statement to mean - that since once the tree dries on top, nothing is likely to grow from the lower part of the tree (unlike other trees, which, when they dry up on top, one cuts them and new branches grow from the lower part of the tree, as we learned above), Shimon anticipates that the tree might die at any time, and he will have to uproot it, so he gives up hope of getting anything out of the Geza. Consequently, should something grow out of it, it belongs to Reuven.

(a) Rav Papa refutes Rav Z'vid's explanation on the grounds - that in our Mishnah too, which speaks about other trees, Shimon knows that, once the tree dies, he will have to uproot it (and cannot replace it), yet he acquires whatever grows from the lower part of the tree (in the way that we explained).

(b) Rav Papa therefore interprets Rav Nachman to mean - that Shimon will not receive what grows from the Geza of a date-palm, because this rarely happens.

(c) If by chance, some branches do grow from the foot of the date palm - they still do not belong to Shimon (because whatever the purchaser does not anticipate, he does not acquire).

(d) To counter Rav Papa's Kashya, Rav Z'vid establishes our Mishnah - when Shimon actually purchased the trees (plus land rights to replace them should they die) for five years. Otherwise, he would not acquire what grows from the Geza; whereas according to Papa, he would.




(a) Rebbi Chiya bar Aba Amar Rebbi Yochanan lists three areas of ground that Shimon acquires together with the three trees that he bought - underneath the trunk and branches, between one tree and the other and outside the tree?

(b) 'Chutzah Lo' incorporates - the area that a fig-picker and his basket require to pick the figs from the tree 'ki'Melo Orah ve'Salo' (though this Din obviously extends to all other fruit-trees as well).

(c) Rebbi Elazar asked on Rebbi Yochanan - that if, as we learned in 'ha'Mocher Bayis', the purchaser of a pit does not automatically receive a path to his pit (because 'Mocher, be'Ayin Ra'ah Mocher'), how much more so ought he not to receive any space outside the tree for picking purposes.

(d) There is less reason to give a purchaser ki'Melo Orah ve'Salo to his tree than a Derech to his pit - because whereas a path to his pit is indispensable, picking space outside the tree is not (seeing as he can pick the fruit by climbing the tree or from directly underneath the branches).

(a) Rebbi Zeira extrapolates from his Rebbe, Rebbi Elazar's Kashya that if Shimon bought two trees from Reuven, he has automatic rights to a path through Reuven's field to get to them. He bases this on Rebbi Elazar's reason 'de'Ar'a Yesh Lo' - because Shimon owns the land in which the trees are growing, implying that otherwise, he would have rights on the path, just as he has rights on the area outside the tree.

(b) When Rav Nachman bar Yitzchak asks Rava whether Rebbi Elazar argued with his Rebbe Shmuel, who rules 'Halachah ke'Rebbi Akiva', he was referring to Rebbi Akiva's principle 'Mocher, be'Ayin Yafah Hu Mocher' (in which case Shimon would have rights to the space outside the trees (like he has a path to his pit).

(a) Rava replies that in any case, the author of our Mishnah cannot be Rebbi Akiva (in which case Rebbi Elazar's ruling does not reflect his personal opinion). And he is referring to the Halachah - 'Higdilu, Yashpeh'. Surely according to Rebbi Akiva, the seller sold him the right for his branches to overhang his field.

(b) We query Rava's reply, however, on the grounds that even Rebbi Akiva will concede to the Din of 'Higdilu Yashpeh' - seeing as Shimon's overhanging branches cast shade over his Sadeh Beis ha'Shalachin, which is bad for the field (unlike allowing Shimon access to his pit, which does not threaten his field in any way).

(c) And we prove this from the S'tam Mishnah in 'Lo Yachpor' (which Rebbi Akiva does not dispute, and), which rules - that if a low-lying branch of Shimon's tree juts out over Reuven's field and interferes with Reuven's plowing, the latter is permitted to sever the branch (and it is fair to assume that the same will apply in our case).

(a) Even though we have concluded that the author of the Seifa of our Mishnah could well be Rebbi Akiva, yet Rebbi Elazar rules 'Mocher, be'Ayin Ra'ah Mocher' (like the Chachamim) - proving that he does not agree with Shmuel.

(b) Despite the S'tam Mishnah in 'Lo Yachpor' - Rebbi Akiva will hold 'Chutzah Lahen, ki'Melo Orah ve'Salo', because it is not as damaging as the low overhanging branch.

(c) Although Rebbi Akiva could be the author of the Seifa of our Mishnah, as we just explained - he cannot be the author of the Reisha, because in his opinion, the purchaser of two trees does acquire the ground in which they are growing, as we learned in 'Lo Yachpor'.

(d) We know that the Halachah is like Rebbi Chiya bar Aba Amar Rebbi Yochanan, even as regards 'ki'Melo Orah ve'Salo' - because he has the support of a Beraisa.

(a) Abaye asked Rav Yosef who has the right to sow the space of 'ki'Melo Orah ve'Salo'. He restricted the She'eilah to the case of 'Chutzah Lahen' - because it adjoins the seller's field (as opposed to 'Tachteihen u'Beinehen', which is separated from it by the purchaser's trees, and it is obvious that it is the latter who is permitted to sow it).

(b) Rav Yosef replied with a Mishnah in 'ha'Mocher Peiros'. The Mishnah rules there that if Reuven owns a garden within Shimon's garden - it is Shimon (the owner of the property) who is permitted to sow the path.

(a) Abaye refutes Rav Yosef's proof on the grounds - that Reuven might object to Shimon sowing his path in the latter case - where the seeds will not cause him any damage, less than to him sowing the area outside his (Reuven's) tree in ours - where the seeds (together with the manure, will dirty his fruit when it falls on them).

(b) So Abaye compares our case to the Seifa there. In a case where Beis-Din gave Shimon a path at the side of the field with the consent of both parties - the Tana permits neither party to sow it.

(c) What makes that case more similar to ours than that of the Reisha is - the fact that here too, the area is designated for the use of the purchaser by mutual consent (as if Beis-Din had arranged the deal), as opposed to the Reisha, where the owner of the outer garden designated a path of his choosing [see Rashbam there]). In addition, the loss is greater here, as we explained.

(d) In the Reisha of the Mishnah in 'ha'Mocher Peiros', when the seeds are growing, the owner of the inner-garden gets to his garden - by walking on the seeds, as per agreement.

(a) We learned in our Mishnah that someone who purchases three trees, acquires the ground in between as well. Rav Yosef Amar Rav Yehudah Amar Shmuel restricts the space between the trees to a minimum of four Amos and a maximum of eight. Rava Amar Rav Nachman Amar Shmuel says - a minimum of eight Amos and a maximum of sixteen.

(b) The significance of Rav Yosef's minimum Shiur of four Amos is - to leave room for the plow to pass.

(c) The larger Shiurim of eight or sixteen Amos are -exclusive, nor do they include the width of the trees.

(d) The Din will differ if the space between the trees is ...

1. ... less - because then it is comparable to a forest, whose trees stand to be uprooted. Consequently, they lose their Chashivus.
2. ... more - they do not combine, and are considered three individual trees (see Rabeinu Gershom).
(a) Abaye advised Rav Yosef not to argue with Rav Nachman, who had the support of a Mishnah in Kil'ayim. The Tana there gives the Shiur of - sixteen Amos between one row of vines and the next, before one is permitted to sow other seeds in a vineyard. The reason that it is then permitted is - because then the rows do not combine to form a vineyard.

(b) Rav Yosef was not aware of this Mishnah (according to Abaye's understanding) - because he became ill and forgot much of his learning.

(c) Rebbi Yehudah supports the Tana Kama with an incident that occurred in Tzalmon, where - that man used to bend each two adjacent rows of his vineyard (that was planted in rows sixteen Amos apart) - outwards one year and inwards the next, enabling him to sow the space between those two rows one year, and the space on the other side of the rows the next.

(d) Rebbi Yehudah knew that what that man did was acceptable - because the Chachamim permitted it.

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