Bava Batra 69b (סט:) — the Talmud in English

From where are these matters derived?

From where do we learn that a grafted carob tree and a sycamore stump are not considered part of the field, to the extent that even if one says that he is selling everything within the field, they are not included in the sale, since they are considered a domain in their own right?

Rav Yehuda said that Rav said:

This matter is derived from the verse concerning Ephron the Hittite, who sold Abraham the field [containing the Cave of Machpelah] without specifying what was included in the sale, as it is written: “I have given you the money for the field; take it from me” (Genesis 23:13). Ephron answered him: “A land worth four hundred shekels of silver, etc.” Nevertheless, Abraham acquired all the trees as well,

as the verse says

(Genesis 23:17–18):

“And the field of Ephron, which was in Machpelah,

which was before Mamre, the field and the cave that was in it, and every tree that was in the field, within all its surrounding boundaries, was confirmed to Abraham as an acquisition.” We see that by purchasing the field without further specification, he also acquired all the trees.

The phrase “within all its surrounding boundaries” is superfluous, since the verse could have written only: “And every tree that was in the field,” which means every tree within the boundaries of the field. Rather, the phrase “within all its surrounding boundaries” must have been written for purposes of exposition.

And this is how we expound it: Only

that which requires surrounding boundaries,

such as thin trees that have no distinct name of their own, and therefore people forget who planted them and it is necessary to mark and surround them with boundaries so that they will be recognizable and no one will contest them, saying that since they are planted within his property, they belong to him—those trees are included in the sale of the field.

This excludes

a grafted carob tree and a sycamore stump,

which do not require surrounding boundaries,

because they are large and significant, and it is public knowledge to whom they belong and in whose land they are planted. These trees are not included in the sale of the field.

Rav Mesharsheya said: From here

from this verse we learn

the boundaries of a field from the Torah:

One who purchases a field also acquires its boundaries and all the trees planted along the boundary, since the boundaries are included in the field. The meaning of the word “surrounding” is that Abraham acquired all the trees planted in the land surrounding the field.

Rav Yehuda said: If one sells land to another,

one who sells land to his fellow

must write for him

in the deed of sale:

“Acquire for yourself palm trees,

fully grown palms,

and young palms,

and date palms—young palm trees,

and palm fronds and shoots,”

and branches and saplings of palm trees.

And although, if he did not write this for him, he acquires them,

even though if the seller did not write this in the deed of sale, the purchaser acquired these things, as explained in the Mishna, which states that one who sells a field sells all the trees in it, except for a grafted carob tree and a sycamore stump,

Even so,

even though this is so,

it is an improvement of the deed

to write it explicitly, so that there will be no room for dispute, and even if they come to litigate before an erring court, the seller will be obligated to include the trees in the sale of the field, since they are explicitly written in the deed.

If

he said to him

the seller said to the purchaser:

“Land and palm trees,”

“I am selling you land and palm trees”—since he added the words “and palm trees,” his statement must be interpreted to mean that he sold additional palm trees besides the palm trees situated in the field. For the palm trees situated in the field are sold together with the field even if he had not said “and palm trees,” as explained in the Mishna. Rather, he certainly intended to add and sell additional palm trees.

Accordingly:

we see,

we observe:

if he has palm trees,

if the seller has palm trees elsewhere—

he gives him two palm trees,

he gives the purchaser two palm trees, since he said “palm trees” in the plural, and the minimum of a plural is two].

And if he does not have any,

if he has no palm trees elsewhere—

he purchases two palm trees for him,

the seller must purchase two palm trees for the purchaser, or return to the purchaser from the payment he received for the sale an amount corresponding to the value of two palm trees, so that he will not be deemed lacking in trust, because since he said that he was selling additional palm trees, and he does not possess additional palm trees, his intention must be interpreted as being that he sells the purchaser two palm trees that he will acquire for the purchaser’s benefit.

And if

the seller has two palm trees elsewhere, but

they are mortgaged

to a creditor, because the seller mortgaged the palm trees against a loan that he borrowed from the creditor—

he redeems two palm trees for him,

the seller redeems two palm trees from the lien and gives them to him.

All this was stated when the seller said to the purchaser: “I am selling you land and palm trees.”

But if the seller wrote to the purchaser:

“Land with palm trees,”

“I am selling you a field together with the palm trees in it”—his intention is the palm trees within the field being sold. Although the palm trees are included in the sale of the field even without being specified in the deed, nevertheless we say that he specified them in order to improve the deed, so that the matter would be clear in the deed of sale as well.

Therefore

we see,

we observe:

if there are palm trees in it,

if there are palm trees in the field that he sold him,

he gives him,

he gives the purchaser the field together with the palm trees in it.

But

if not,

if there are no palm trees in the field that he sold—

it is a mistaken sale,

because the seller falsely told the purchaser that there were palm trees in the field, and it became clear that there were none; therefore the sale is void. Although there is no monetary exploitation with regard to land, since any sum paid for land is not considered exploitation, nevertheless it became clear from the deed that the purchaser agreed to the sale only on the understanding that he believed that there were palm trees there, and it became clear that there were none.

And if the seller said to the purchaser:

“Land in a place suitable for palm trees,”

“I am selling you a place suitable for palm trees”—

he does not have palm trees,

the purchaser has no right to receive palm trees. Therefore, if there are no palm trees in the field, the sale is not void, since the seller said only that it was a fine field

suitable for palm trees,

fit for growing palm trees,

he said to him,

the seller said that he was selling him.

If there were palm trees in the field, they are certainly included in the sale. What the seller said—that he was selling land suitable for growing palm trees—means that he sold him land together with palm trees laden with abundant fruit.

If

he said to him

the seller said to the purchaser: “I am selling you the field”

except for a certain palm tree,

excluding a particular palm tree—

we see,

we observe:

if it is a good palm tree,

if that palm tree is of average quality and produces some fruit, we say that

he retained it,

the seller retained that palm tree for himself, intending to benefit from some of the produce of his field, while the purchaser acquired the other palm trees together with the field that he bought.

But

if it is a bad palm tree,

if the palm tree that he retained for himself is an inferior palm tree, one that people call “a bad palm tree,” such as one that does not produce a measure of a kav of fruit, — we interpret his intention as follows: by retaining this tree for himself, he intended to retain even this inferior tree for himself;

all the more so, these

all the more so did he retain for himself the other palm trees that are better than the one he specified.

However, the palm trees inferior to the bad palm tree that he specified are included in the sale of the field. His intention was only to retain the palm trees superior to the specified tree, as well as the specified bad palm tree, but not those inferior to it.

If

he said to him

the seller said to the purchaser: “I am selling you a field”

except for trees,

excluding trees.

We observe:

if it has trees,

if the field contains types of trees, such as olive trees, fig trees, apple trees, and other types of trees that are called trees, we say that he sold him the field

except for trees,

excluding the trees, since he excluded them from the field and retained them for himself.

But

if it has palm trees,

if the field contains only palm trees and no other types of trees, he certainly intended to sell the field

without the palm trees,

excluding the palm trees. Although ordinarily palm trees are not called trees, but were customarily called palm trees because of their importance and because most of their trees were palm trees, nevertheless, since there are no other trees here, only palm trees, when the seller said that he was retaining the trees, he certainly intended the palm trees.

Likewise,

if it has vines,

if the field contains only vines—although ordinarily vines are not called trees, nevertheless, since there are only vines in the field, and the seller said that he was selling the field except for the trees in it, he certainly intended the vines, and he sold the field

without the vines,

excluding the vines.

And if the field contains

trees and vines,

both other trees and vines—he sold the field

except for trees,

excluding the other trees, but he did not retain the vines for himself, since ordinarily they are not called trees.

Likewise, if the field contains

trees and palm trees,

both other trees and palm trees—he sold the field

except for trees,

excluding the other trees, but he did not retain the palm trees for himself, since ordinarily they are not called trees.

And if the field contains nothing except

vines and palm trees,

vines and palm trees—we say that he sold the field

without the vines,

excluding the vines. But he did not retain the palm trees for himself, because since he said that he was retaining “the trees,” we interpret his intention as referring only to the vines, which are closer to being included in the category of trees than palm trees are.

Rav said:

If the seller said to the purchaser that he was selling the field except for the trees in it, he retained for himself only those that are called trees. Therefore, only

all

those trees

that he ascends to

[them]

with a rope

to gather their fruit,

are retained,

are included among the trees that the seller retained for himself, because only these are considered trees. But

all

the small trees

that he does not ascend to with a rope

to gather their fruit, since they are low—

are not retained,

because they are not considered trees. The Gemara will explain below that the reference is to palm trees, whose normal growth is to be very tall, with their fruit at the top. Therefore, they are not considered trees if they are so small and low that one can gather their fruit without climbing them with a rope.