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Babylonian Talmud: Tractate Baba Bathra

Folio 37a

For did not R. Ishmael lay down that one kind of crop confers a presumptive title to the whole field? So here, one set of ten trees confers a presumptive title to the others, and vice versa.1  This, however, is only the case if the other twenty did not produce [in the other two years]; for if they did produce and he did not take the produce, he obtains no hazakah. And in any case [it is necessary that the trees of which he does take the produce] should be spread about the field.2

[If a man sells a field to two persons, the ground to one and the trees to the other, and] if the one takes possession of the ground and the other takes possession of the trees,3  R. Zebid says that the one becomes legal owner of the trees4  and the other becomes the legal owner of the ground.5  R. Papa strongly objected to this ruling. According to this, [he said,] the owner of the trees has no right whatever in the ground, and the owner of the ground can therefore tell him [when the tree withers], 'Cut down your tree and take it and be gone.' No, said R. Papa, [the law is that] the one becomes owner of the trees and half the ground, and the other of half the ground.

There is no question that if a man sells a piece of ground6  and retains the trees on it for himself, he is entitled to a certain amount of ground [round the trees]. This ruling would be accepted even by R. Akiba, who said [in regard to a field with a well in it] that the seller interprets the terms of the sale liberally.7  For this only applies to a well and a cistern, which do not impair the soil,8  but in the case of trees which do impair the soil9

To Part b

Original footnotes renumbered.
  1. Lit., 'these … to these and these … to these.'
  2. Lit., 'be divided' (the fruits between the various sets of trees). Because if he takes the produce of ten in one beth se'ah, this is counted as a field by itself, and confers no right to the rest.
  3. By digging or some similar action.
  4. I.e., of the trees only, without any rights in the ground under or round them.
  5. I.e., the ground under the trees and as much round them as is required for tending them (Rashb.).
  6. To one purchaser. V. infra.
  7. Lit., 'he sells with a kindly eye,' i.e., if a man owns a courtyard or a field with a well in it, and sells the courtyard but not the well, he does not ipso facto retain a right of way through the courtyard or the field to the well, but has to pay for it, if required, to the purchaser. V. infra 64a.
  8. There is therefore no danger that he will at some future time be called upon by the purchaser of the field to remove the well; hence it does not occur to him to reserve the ground round it for himself.
  9. Through the spreading of the roots.
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Baba Bathra 37b

he would certainly reserve for himself [some of the soil], since otherwise the purchaser can say to him [when the tree withers], 'Pluck up your tree and be gone. If, however, a man sells the trees [in a field1  and retains the ground for himself], in this there applies the dispute between R. Akiba and the Rabbis [viz., whether the purchaser is entitled to any ground round the trees]. According to R. Akiba, who holds that the vendor interprets the terms of the sale liberally, the purchaser is entitled [to such ground]; according to the Rabbis, he is not. That R. Akiba would allow the purchaser such ground would not be questioned even by R. Zebid, who said [in the case mentioned above] that he is not so entitled. For this was only where there were two purchasers, the reason being that one can say to the other, 'Just as I have no share in the trees, so you have no share in the ground.' Here, however, the seller interprets the terms of the sale liberally. That the Rabbis in this case do not allow the purchaser such ground would not be questioned even by R. Papa, who said above that he is so entitled. For this was only where there are two purchasers, the reason being that one [the purchaser of the ground] can say to the other, 'Just as the vendor interpreted the terms of sale generously for you,2  so he did for me.'3  Here, however, the seller interprets the terms of sale strictly.4

The Nehardeans say: [If the thirty trees mentioned above5  are planted] close together,6  the gathering in of their produce does not confer hazakah. Raba strongly questioned this ruling. On this view, he said, how is hazakah to be obtained in a row of clover?7  No, said Raba; [what we should say is that] if a man sells saplings closely planted, the purchaser does not acquire any of the soil.8  R. Zera said: A similar [difference of opinion is found] between Tannaim, [in the following Mishnah]: If a vineyard is planted on less than four cubits,9  R. Simeon says that it is not a vineyard in the legal sense,10  whereas the Rabbis say that it is a proper vineyard, the middle row being regarded as non-existent.11

The Nehardeans say: If a man sells a date tree to another, the purchaser acquires the soil [under it] from its base to the furthest depth.12

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Original footnotes renumbered.
  1. The case here discussed is one in which only two trees are sold, since there is no question that the sale of three trees carries with it a certain amount of ground round the trees. V. infra 81a.
  2. By making over the tree and its produce to you in perpetuity.
  3. By allowing me ground under and round the tree.
  4. Lit., 'sells with a malignant eye.'
  5. The text here reverts to the discussion of the subject of the thirty trees.
  6. The 'trees' in question are apparently saplings which are meant to be transplanted.
  7. Which also is planted closely, and with a view to transplanting.
  8. Because they are meant to be uprooted.
  9. I.e., with less than four cubits between the rows of vines.
  10. And corn or other seed sown there does not form kilayim.
  11. Kil. V, 2; v. infra 83a. And similarly in regard to the trees, the Rabbis look upon the middle ones as non-existent, and therefore if the owner sells them the purchaser acquires the soil round them; whereas Raba follows R. Simeon.
  12. And can therefore plant a new one when this one withers.
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