BAVA BASRA 82 - dedicated by Rabbi Kornfeld's father in honor of his aunt, Malka Gitel bas Reb Yakov Mordechai (Malvina) Marmorstein, who took him into her home and raised him like her own child after the Holocaust. Her Yahrzeit is 20 Nisan.
1) SHOOTS THAT GROW FROM THE TRUNK OF A PALM TREE
QUESTIONS: Rav Nachman taught a tradition that a date-palm tree "has no Geza." Rav Zevid thought that this meant that the owner of the tree does not receive the shoots that grow from the trunk, even though the owner of the tree normally receives such shoots, as the Mishnah says. A palm tree is different because it is more likely to be uprooted from the ground than are other trees. Therefore, the person who buys a palm tree has no intention to acquire any shoots that grow from the trunk.
The RASHBAM explains that a palm tree is different because it tends to dry out quickly. In the case of other trees, when their upper sections begin to dry out the upper sections can be cut off and their stumps will regenerate. Therefore, one who purchases a palm tree does not have in mind to purchase the shoots that grow from the trunk, since the tree might die soon and will not have time to produce offshoots. Other trees which live longer have a greater chance of producing offshoots and therefore the buyer has in mind to acquire those offshoots.
Rav Papa questions Rav Zevid's explanation from the Mishnah which says that the buyer does have the rights to the shoots that grow from the trunk. Rav Zevid answers that the Mishnah is discussing one who buys a tree for the rights to harvest it for five years. Even if the palm tree does die, the buyer may plant another tree in its place. Therefore, in that case, he does have in mind to acquire any shoots that might grow from the trunk within five years.
The Rashbam's explanation is difficult to understand.
The risk that the tree might die is not a reason for the buyer to not intend to acquire the shoots that grow from the trunk. Why should the buyer expect that he is buying a tree that is about to die? (OHEL MOSHE)
Moreover, why does Rav Papa question Rav Zevid from the Mishnah? The Mishnah might not be discussing palm trees, but rather other types of trees which live longer than palm trees!
(a) The answer to the first question may be as follows. A tree normally does not generate shoots from its trunk, but rather from the area of the foliage on top. The only time a tree generates shoots from the trunk is when the top of the tree cannot produce shoots, either because the top has dried out or because the top has been cut off. The difference between the two is that if the tree dries out on top, then the dryness will spread rapidly to the bottom of the tree, and the tree will not survive long enough to produce shoots from its trunk. In contrast, if a person cuts off the top of the tree, the bottom of the tree -- which is still healthy -- eventually will produce shoots and will not dry out.
This is what the Rashbam means. When a person buys a different type of tree, he has in mind to purchase the shoots that will grow from the trunk in the event that the tree starts to dry up (on top) and he has to cut the top off. A palm tree, in contrast, will not produce shoots if the top is cut off. It will produce shoots only if the top dries out and the bottom produces the shoots fast enough, before the dryness spreads to the bottom of the tree. Since it is unusual to produce shoots under such circumstances, the buyer does not have in mind to acquire them.
The Rashbam (DH Kashya) answers the second question by saying that the Mishnah implies that this Halachah, that one acquires the shoots that grow from the trunk, applies to all trees, including the palm tree.
The Rishonim question the Rashbam's explanation. The Gemara's answer is an "Ukimta" which limits the Mishnah to a specific case in which a person sells a tree for five years. Since the Gemara already finds the need to limit the case of the Mishnah, it should say instead that the Mishnah is discussing other types of trees and not palm trees. Because of this question, the RAMBAN in the name of RABEINU YEHUDAH BEN YAKAR explains that Rav Zevid understood that it is not only in the case of a palm tree that the buyer does not acquire the shoots, but that this is the law in the case of all trees. The buyer does not acquire the shoots that grow from the trunk since the tree produces shoots from its trunk only under unusual circumstances (such as when the top of the tree dries out and the buyer does not cut off the top in time to save the bottom). Hence, the Gemara's question from the Mishnah is clear -- both Rav Zevid and the Mishnah are discussing all types of trees.
According to both explanations, the Gemara answers the question on Rav Zevid by saying that the Mishnah refers to a case in which one buys a tree for five years. Why does buying the tree for five years give him greater rights to the shoots that grow from the trunk? Perhaps the Gemara means (according to the Rashbam) that even if the original tree was a palm tree, if it dies within five years the buyer might plant another type of tree which does regenerate when the top is cut off. Consequently, the buyer has in mind to acquire all of the shoots that grow from the trunk.
(b) RABEINU YONAH cites RABEINU CHANANEL who explains the Gemara differently. When Rav Zevid says that the buyer of the palm tree does not receive the shoots that grow from it, he means that he does not have the shoots that the Mishnah discusses, but rather he has more -- he has all of the shoots, even those that grow from the roots. This is also the way the RI MI'GASH explains the Gemara. (The Ri mi'Gash even amends the Girsa to read that "the owner of the land" does not have the shoots, which is more consistent with this explanation).
These Rishonim explain that Rav Zevid refers to a case in which a person buys a palm tree in order to use its wood. The Gemara (80b) teaches that a palm tree, unlike other trees, may be uprooted entirely when it is sold for its wood and the buyer is not required to leave the seller a stump, since it cannot regenerate once its top is cut. Because of this law, the seller loses hope of receiving any shoots that grow from the roots, and he even grants those shoots to the buyer. Rav Papa challenges Rav Zevid from the Mishnah which says that when a person buys a single tree, the seller is entitled to the shoots that grow from the roots, even though the buyer can uproot the tree and take it all for himself (even if it is not a palm tree, since the tree was sold completely and not just for its wood). The Gemara answers that in the case of the Mishnah, the seller stipulated that the sale would be for only five years, and only for the fruit; he did not give the buyer the rights to uproot the tree itself.
2) LETTING THE BRANCHES GROW
QUESTION: The Gemara attempts to prove that the Mishnah does not follow the opinion of Rebbi Akiva who maintains that a seller sells "b'Ayin Yafah." The Mishnah states that the seller is permitted to trim the branches of the buyer's trees that extend over his property beyond the original extent of the branches (at the time the trees were bought). Rebbi Akiva, who maintains that the seller sells "b'Ayin Yafah," presumably would say that the seller sold to the buyer the rights for his branches to grow more and hang over his property. Accordingly, the Mishnah does not follow the opinion of Rebbi Akiva.
How does the Gemara prove that the Mishnah maintains that a seller does not sell "b'Ayin Yafah"? Perhaps he does sell "b'Ayin Yafah," and the only reason why the branches may be cut is that if they are left on the tree, the buyer might claim later that this was the extent of the branches of the tree when he originally purchased it. As a result, he will claim that the land beneath the branches belongs to him, since the Halachah is that the buyer owns all of the land beneath the trees that he buys. The Gemara (82a) mentions a similar logic when it says that the buyer must cut down branches that grow out of its trunk because perhaps the earth will cover the bottom of the branch and he will claim that he bought three trees and not two, and he will thereby be entitled to the land beneath the trees.
(a) The RAMBAN writes that the possibility that the buyer will make such a claim -- that the land beneath the outgrowth of the branches is his -- cannot be the cause to force the buyer to cut the branches. In order to prevent the buyer from making such a claim, the Chachamim could require simply that the seller make a border fence to demarcate the edge of the buyer's land. In the case of the Gemara earlier (the shoots that grow from the trunk), building such a fence is not a solution because, in that case, the buyer has no land at all. There is no way for the seller to show that the buyer has no land, and thus the buyer is forced to cut the offshoots.
(b) However, RABEINU YONAH (cited by the TUR) indeed rules that the buyer must cut the branches that grow from his trees, even if they are within the radius of the space of "Oreh v'Salo," so that he will not be able to claim that this was the original extent of the tree's foliage and he is entitled to the space of "Oreh v'Salo" beneath the additional growth of the branches. Apparently, he rules that the problem cannot be solved by a simple fence, and therefore the branches must be cut. Why, then, is this not also the reason for why Rebbi Akiva requires the branches to be cut?
The RASHBA writes that, indeed, the Gemara could have given this reason for why Rebbi Akiva requires the branches to be cut, but it chose a better way of refuting the assertion that the Mishnah does not follow the opinion of Rebbi Akiva.
(c) The PNEI SHLOMO suggests that if the seller sells "b'Ayin Yafah," then he would allow the buyer even to grow his branches, even though letting them grow might eventually be to the seller's detriment in that the buyer will claim that the land beneath the branches belongs to him. Even though the seller might suffer such a loss, since he has the option of building a fence it is possible that he sold the trees "b'Ayin Yafah" and he is relying on building a fence to prevent such a loss.
However, according to the Gemara's conclusion that the seller does not sell "b'Ayin Yafah" when doing so will cause him considerable loss, the seller will not sell "b'Ayin Yafah" to allow the buyer to keep his branches and to claim that the land is his. Rabeinu Yonah, who rules that the buyer must cut the branches, follows the conclusion of the Gemara which maintains that the rights to keep branches are not included in the "Ayin Yafah" element of the sale.