DO WE SWEAR ABOUT ATTACHED PEROS? [Shevu'ah: Peros]
(Beraisa): If one was Makdish his slave, Me'ilah does not apply;
R. Shimon ben Gamliel says, Me'ilah applies to his hair.
They argue about hair ready to be cut (whether it is as if it was already cut).
Suggestion: They argue as the following Tana'im argue.
(Mishnah - R. Meir): If Reuven claimed 'I entrusted you with 10 laden vines, and Shimon said 'you entrusted me with only five', he must swear.
Chachamim say, anything attached is like land; he need not swear.
(R. Yosi b'Rebbi Chanina): They argue about grapes ready to be detached. Meir considers them as if they were already detached; Chachamim disagree.
Rejection: Chachamim of the Beraisa can hold like R. Meir. He considers grapes as if they were detached, because they get worse if left attached too long (surely, they will be detached soon). Hair increases in value the longer it is attached!
Kesuvos 50b: Rav Yosef ruled that daughters be fed from dates on mats.
Question (Abaye): A creditor would not collect from them (they are Metaltelim)!
Answer (Rav Yosef): I discuss dates ready to be (detached and) put on mats.
Question: What is ready to be detached is considered to be detached (i.e. Metaltelim)!
Answer (Rav Yosef): I discuss dates that must remain on the tree a little longer.
Rif and Rosh (Shevuos 24a and 6:24): We established that R. Meir and Chachamim argue about grapes ready to be detached.
Ran (DH Masnisin): The Halachah follows the majority, i.e. Chachamim. We say in Kesuvos that anything ready to be detached is as if it were already detached, i.e. if it does not need the land at all. When it needs the land a bit, but if it is attached too long it will be ruined, Chachamim and R. Meir argue.
Rif (Kesuvos 18b): What is ready to be detached is considered to be detached.
Rambam (Hilchos To'en 5:4) If Reuven claimed grapes ready to be detached or dry grain ready to be detached, and Shimon admitted to part of the claim and denied part, he swears about it like other Metaltelim. This is if they do not need the land anymore. Anything ready to be detached is as if it were already detached regarding denial and admission. If they still need the land, they are like land in every way, and one swears only Heses about them.
Ra'avad: The Rambam rules like R. Meir. The Rif rules like Chachamim. Perhaps the Rambam learns from in Kesuvos, in which we say that anything ready to be detached is considered to be detached. The Rif saw this. Perhaps we do not learn from oaths to other matters, for slaves of orphans are considered Metaltelim, but we do not swear about them.
Magid Mishneh: The Rambam holds that all consider anything ready to be detached as if it were detached; the Tana'im argue about when they do not need the land. He rules like R. Meir. Alternatively, he holds that when they do not need the land at all; all agree that they are like Metaltelim. The Gemara in Kesuvos is like Chachamim, and the Rambam rules like them. The Rambam distinguished similarly in Hilchos Mechirah (1:17). Most Meforshim hold that even if they do not need the land at all, we do not swear about them. Many distinguish between this and Kesuvos.
Beis Yosef (CM 95 DH v'Chosav ha'Rambam): I say that the Rambam holds like his Rebbi, Ri ha'Levi, that R. Meir and Chachamim argue only about Shomrim, but for everything else Chachamim agree that anything ready to be detached is considered to be detached.
Drishah (95:5): The second explanation of the Magid Mishneh is correct. The Rambam said 'grapes ready to be detached...', and added 'this is if they do not need the land any more.' He explains that the Tana'im argue about grapes ready to be detached, but they still need the land a little. (The Gemara said that all agree about grapes that need the land, i.e. they are not ready to be detached at all.) The Rambam rules like Chachamim. He distinguished like this so that the Gemara in Kesuvos is like Chachamim.
Hagahos Ashri (Bava Metzia 8:19): We do not swear about land, even grapes ready to be detached, for it is not as if they were detached. All agree that they are like land for oaths, and for animals (this should say creditors - Hagahos haGrif) they are like Metaltelim if they don't need the tree.
Shulchan Aruch (CM 95:2): If Reuven claimed grapes or dry grain ready to be detached, and Shimon admitted to part of the claim and denied part, he swears about it like other Metaltelim. This is if they do not need the land anymore. Anything ready to be detached is as if it were already detached regarding denial and admission. If it still needs the land, it is like land in every way.
Tur: The Rambam rules like we swear about Peros ready to be detached, for it is as if they were detached. The Rosh says that one swears only Heses, for it is not as if they were detached. R. Chananel agrees. Ri ha'Levi says that this is only regarding a Shomer, but not for Ona'ah and Shevu'ah. The Ramah says that they are excluded from everything from which land is excluded: Shevu'ah, theft, Ona'ah and Shevu'as ha'Shomrim.
Beis Yosef (u'Mah she'Chosav Rabeinu): The Tur says that the Rosh rules like Chachamim, for the Rosh brought the Mishnah without saying whom the Halachah follows.
Drishah (5): The Rambam said that what does not need the land is like Metaltelim regarding a sale, and also regarding Shevu'ah. Really, it applies everywhere. In Hilchos Sechirus he discusses what still needs the land.
Shach (9): The primary opinion is that one does not swear about attached Peros. The Ra'avad and Magid Mishneh hold that the Rambam rules like R. Meir; it seems that the Tur agrees. They erred. The Magid Mishneh's second explanation and the Ran say that the Tana'im argue only when it is ready to be detached, but needs the land a little. This is wrong. The Rambam says that grapes ready to be detached do not need the land. Also, we say that R. Meir discussed only grapes, which get worse if left in the ground. The Ran says that they need the land a little, but afterwards they would get ruined. The Gemara does not suggest this at all. All these Rishonim overlooked Perush ha'Mishnayos in Shevuos, in which the Rambam says that the Halachah follows Chachamim when he gave the grapes to be guarded. For sales, Ona'ah and partial admission, the primary claim is not due to Shmirah, so what is ready to be detached is considered detached, like Ri ha'Levi. The Ri ha'Levi, Rambam, and Ran rule like Chachamim; it seems that the Rif and Rosh agree. Rav Hai Gaon says that we never swear about attached Peros.
Gra (12): The Rambam (Hilchos Me'ilah 5:10) holds that something attached is like Metaltelim if it will deteriorate if left attached, like R. Meir. This is like Ri ha'Levi, who says that they are like land only regarding Shomrim.
Taz (193): Regarding Kinyan (Siman 193), the Rema and Tur rule like the Rosh and R. Chananel say about Shevu'ah (it is considered attached). The Rema did not comment in Siman 95, for some distinguish Shevu'ah from other matters.
Shach (193:1): The Rema did not bother to comment in Siman 95, for in any case one must swear mid'Rabanan.
Note: I do not understand this, for there are differences between mid'Oraisa and mid'Rabanan oaths!