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Babylonian Talmud: Tractate Baba Bathra
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
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
Baba Bathra 82b
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
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