KINYAN OF ATTACHED PEROS [Peros :attached: Kinyan]
(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 disagree. Anything connected to land is like land; he need not swear.
43a (R. Yosi b'Rebbi Chanina): They argue about grapes ready to be detached. Meir considers them as if they were already detached; Chachamim disagree.
Bava Basra 84b (Mishnah): If Shimon buys attached flax from Reuven and he detached any amount, he acquires.
87a - Question: Why does he acquire everything by detaching any amount?
Answer (Rav Sheshes): The case is, the seller said 'go make any improvement in the field and acquire it all.'
Kesuvos 50b: What is ready to be detached is considered to be detached (i.e. Metaltelim), so daughters cannot collect them for food.
Rif and Rosh (Shevuos 24a and 6:24): We established that R. Meir and Chachamim argue about grapes ready to be detached.
Rif (Kesuvos 18b): What is ready to be detached is considered to be detached.
Rambam (Hilchos Mechirah 1:17): Anything attached is like land. It is acquired through money, a document or Chazakah. If it does not need the land, e.g. grapes ready to be detached, they are Metaltelim regarding Kinyan and Ona'ah.
Magid Mishneh: In Shevuos we say that attached Peros, even grapes ready to be detached, are like land for oaths. The Rambam explains that this is when they need the land. If they do not need the land at all; we say in Kesuvos that it is as if they were detached. Alternatively, the law of oaths is different. It seems that the Rambam holds like this in Hilchos Sechirus (2:4).
Hafla'ah (in Kovetz Chiburim in Friedman Shulchan Aruch): The Rambam holds that eating Peros is a Chazakah to acquire land. Why did the Gemara ask why he acquires everything by detaching any amount? This forced the Rambam to say that finished attached Peros are considered detached. If they are not finished, it is abnormal to detach them, so this is not a Chazakah.
Rambam (Hilchos Sechirus 2:4): If one entrusted attached Peros to be guarded, even grapes ready to be detached, they are like land regarding laws of Shomrim.
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. The Gemara in Kesuvos is like everyone. A proof if this is that the Rambam rules about a sale that it is like Metaltelim, and regarding Shomrim it is like land.
Shulchan Aruch (CM 95:2): If Reuven claimed grapes ready to be detached, and Shimon partially admitted, he swears about it like about other Metaltelim. However, if they still need the land, they are like land in every way.
Tur: The Rambam rules that we swear about Peros ready to be detached, as if they were detached. The Rosh and R. Chananel consider them to be attached. Ri ha'Levi says that this is only for a Shomer; if one sold grapes ready to be detached, since he intends to detach them, they are like Metaltelim in every way, e.g. Ona'ah and Shevu'ah. The Ramah excludes them from whatever land is excluded: Shevuos, theft, and Ona'ah.
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): Perush ha'Mishnayos in Shevuos says that the Halachah follows Chachamim when he gave the grapes to be guarded. Regarding sales, Ona'ah and partial admission, the primary claim is not due to Shmirah, so we say that what is ready to be detached is as if it were already detached. This is like his Rebbi, Ri ha'Levi. The Ri ha'Levi, Rambam, and Ran all rule like Chachamim; it seems that the Rif and Rosh agree.
Gra (12): The Ramah says that they are like land in all ways. Therefore, the Rema and Tur argue with the Rambam in Siman 193.
Shulchan Aruch (CM 193:1): Anything attached to the ground that needs the ground is like land. It is acquired through money, a document or Chazakah. If it does not need the land, e.g. grapes ready to be detached, they are Metaltelim regarding Kinyan, and Ona'ah applies to them.
SMA (2): Here, the Rema brought the dissenting opinion, i.e. the Tur who rules like Chachamim. In Siman 95, he did not bring it, even though the Tur said that the Rosh and R. Chananel disagree with the Rambam. In Siman 301, the Shulchan Aruch says that it is like land, even if it is ready to be detached. Here he rules oppositely! We must say that when the Rambam and Shulchan Aruch say 'ready to be detached', it still needs the land a little. Therefore, in Siman 301 it is like land. This is only for Shevu'as ha'Shomrim. For Kinyan and Ona'ah it is like Metaltelim, since it will be detached today or tomorrow. This is why it says 'regarding Kinyan and Ona'ah.' Siman 95 discusses Shomrim. It begins with the text of the Mishnah, but adds 'ready to be detached' to show that it still needs the land a bit. The Shulchan Aruch wrote 'it is like land in every way.' This is not precise, for here we say that it is like Metaltelim for Kinyan and Ona'ah. Rather, it is like land for all laws of Shomrim. The Rema brings Chachamim's opinion that even if it does not need the land at all, it is like land. In Siman 95, the Rema did not dissent. We must say that when it does not need the land at all, he rules like the Rambam; when it needs the land a bit, he holds like the Rosh that it is like land for Shomrim, Kinyan and Ona'ah. Ir Shushan cites an opinion that even if it does not need the land at all, it is like land. Even though it is as if it were detached, it is acquired Agav (along with the land). This is wrong, for all who disagree say that it is like land also regarding Ona'ah. Also, the Rambam says that if flax does not need the land at all, it is acquired Agav. If so, why does the Rema say that some disagree?! Also, if he acquires only the attached Peros, he must say 'acquire the land and the Peros Agav.' The Rema should have explained this!
Rebuttal (Shach 1 and Taz): The Rambam and Shulchan Aruch do not discuss Peros that still need the land. 'it is like land in every way' is precise. Siman 95 does not discuss Shomrim, rather, admission and denial. Rather, they hold like Ri ha'Levi; when it was given for Shmirah, it is like land.
Taz: Here, 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 (1): Therefore, here and in Siman 95 it is like Metaltelim when it does not need the land. I elaborated in Siman 95. The primary opinion is the Rema, who is like the Tur. He did not bother to comment in Siman 95, for in any case one must swear mid'Rabanan. Here he commented, for land is not acquired like Metaltelim at all.
Gra (3): We hold like Chachamim only regarding Shomrim.
Rema: Some say that even if they do not need the land, they are like land.
Gra (4): This opinion rules like Chachamim regarding everything except for one who ate finished Peros, or what a creditor can collect.