Bava Batra 37a — the Talmud in English

For

did Rabbi Yishmael not say: One fruit

establishes presumptive ownership of all the fruits!?

Here too, these establish presumptive ownership of these, and these establish presumptive ownership of those.

That is to say: Just as Rabbi Yishmael said according to his position that eating produce and fruits growing in part of a field is sufficient for this eating to be considered as eating from the entire field, so too, according to the Rabbis, eating the produce of trees standing in part of the field is considered like eating the produce of the trees throughout the field.

However, this law has two conditions:

a.

This applies

when it is sufficient to eat from ten trees each year,

when

the other trees

did not produce [A0014]]fruit,

плодов],

but

if even the other trees

did produce

fruit

and

he

did not eat

them,

it does not establish presumptive ownership,

because since he did not eat all the fruit, he revealed about himself that the field is not his. Therefore, he is afraid to establish complete presumptive ownership, and consequently the claimant’s silence provides no proof; and it does not establish presumptive ownership. b.

And this is so when they are distributed in separate groups,

that the ten trees whose fruit he ate each year were spread across all three beit se’a measures of land in this field. If he ate the fruit of three trees in one beit se’a, and three in another, this establishes presumptive ownership. But if he ate ten trees together in this beit se’a, and in the second year likewise in the second beit se’a, and in the third year he ate the ten trees in the third beit se’a, this does not establish presumptive ownership, since each beit se’a is considered a separate orchard.

a. The presumptive ownership mentioned later in the discussion is not the presumptive ownership established through three years, but rather the law of presumptive ownership by which one acquires land: for example, by digging in it a little or performing some form of cultivation. This concerns acquisition, not proof of ownership. b. One who sells another person two trees in his own field gives the buyer no right to the land, other than the right to leave the tree there until it dries out, but if he sells him three trees, the buyer acquires the land beneath and between them, to the extent of the area needed for harvesting figs and for his basket. One who sells an orchard to two people—for example, he sold the trees to one of them and the land between them to the other—and

this one—

the purchaser of the trees—

established ownership of the trees

in order to acquire them,

and that one established ownership of the land

in order to acquire it:

Rav Zevid said: This one

who established ownership of the trees alone

acquired

the

trees

without the land. If the trees dry out, he may no longer plant others in their place, since he did not acquire the land. This is so even if there were three trees, in which case he would have acquired land had he purchased them from the owner of the field.

And that one

who established ownership of the land

acquired

the

land.

Although one who purchases three trees also acquires land, that law applies only when a single buyer purchases from the owner of the land. But when there are two buyers purchasing the trees and the land together, the owner of the land can say to the owner of the trees: “Just as I have no rights whatsoever in your trees, so you have no rights whatsoever in my land.”

Rav Pappa strongly objected to this: If so,

according to your statement that

the owner of the trees has no rights at all in the land—

should the owner of the land say to the owner of

the

trees,

when the trees dry out,

“Uproot your trees, take them, and go” [A0078]][Uproot your trees, carry them away, and go]? But this is clearly unreasonable!?

[uproot your tree, take it, and go away], but this cannot be reasonable!?

Rather, Rav Pappa said:

This one

who established ownership of the trees

acquired the trees and half

of the

land

needed for the trees, even if he purchased only two trees.

And that one

who established ownership of the land

acquired

the

half

of the

land

that remained.

The Gemara explains that the following law is

obvious:

If a person

sold

the

land and retained the trees for himself,

even two trees or only one—

he has

also

the

land needed to sustain the trees and for their requirements, and even if they dry out, he may plant others in their place.

And this is so even according to Rabbi Akiva, who says

generally: A

seller, when

he sells,

sells generously; he

he

sells

in a manner that gives the buyer everything reasonably required, and for this reason, if a person sold a house but retained the cistern and the cellar within it, he may not go to his cistern until he acquires a path from the buyer. Since, when he sold the house to the buyer, he sold it generously, he did not retain a path for himself to reach his cistern—

This applies to a cistern and a cellar, because

the

latter do not diminish the land [A0123]] [the existence of the cistern and cellar does not diminish the buyer’s land]. Thus, when he sold it to him, he did not need to retain any right in the land in order to keep his cistern there, since it causes the buyer no harm at all. Therefore, he did not retain a path through the land by which to reach his cistern.

[то есть существование ямы и цистерны не умаляет землю покупателя]; и получается, что, когда он продал её ему, ему не было необходимо оставлять за собой какое-либо право на землю, чтобы удерживать там свою яму, поскольку она совершенно не наносит ему ущерба; поэтому он не оставил за собой дороги на земле, чтобы идти к своей яме.