Bava Batra 82b — the Talmud in English

the full

width of the

picker’s

basket,

and his basket

in his hand, so that the purchaser will be able to gather the fruits of the outer branches without having to squeeze into a narrow place or climb the tree.

One who sells his fellow a pit within his field: according to Rabbi Akiva, the purchaser has the right to pass to his pit through the seller’s field, even though this right was not mentioned at the time of the sale, because a seller sells with an “open eye.”

But according to the Sages, a seller sells with a “jealous eye”; therefore, the purchaser has no right to pass to his pit through the seller’s field, and he must “fly through the air” or purchase a path from the landowner in order to reach his pit.

Likewise, one who purchases three trees within his fellow’s field: according to the Sages, he has no right to pass through the seller’s field until he acquires a path for himself from the landowner; but according to Rabbi Akiva, the purchaser may pass through the seller’s field, because he sold it to him with an “open eye.”

The reason for these laws according to the Sages is: the purchaser acquired a defined piece of land for himself, and the seller’s land is not subordinated to the purchaser’s needs. [Unlike one who purchases two trees, as will be explained in the Gemara.]

He challenged him,

challenged

Rabbi Elazar

Rabbi Yohanan’s words:

Now,

to pass

through

the seller’s field to his trees,

he has no

right,

for

the seller’s field

is other land,

and is not subordinated to the purchaser.

And is it so that

the full measure of a picker’s basket

is his!?

Is this not a kal va-chomer: if he has no path, even though he cannot tend his trees and benefit from them without having access to them,

then the full measure of a picker’s basket—which is not so necessary, since he can climb the tree or stand beneath it and gather—is it not all the more so that the purchaser should have no right to it? And why did Rabbi Yohanan say that the purchaser has the full measure of a picker’s basket outside the tree and its branches!?

Rabbi Zeira said: From the words of our master,

Rabbi Elazar, in his question against Rabbi Yohanan,

we learn:

when he purchased

three

trees,

it is he who has no path,

because the land itself is his, while the seller’s land is “other land.”

Is it so

that when he purchased

two, he has

a path in the seller’s field, because

he says to him

the purchaser to the owner of the field:

Is it so

that in any event my trees

stand on your land,

for one who purchases two trees has no land; and for what reason do I leave my trees in your land? Because your land is subordinated to me for all the needs of the tree. If so, for that same reason, I also have a path through your field.

He said,

he asked,

Rav Naḥman bar Yitzḥak said to Rava: Shall we say that Rabbi Elazar does not hold of the teaching of his master, Shmuel

[does Rabbi Elazar’s statement here contradict the statement of his teacher Shmuel]!?

For

he

said: Shmuel said: The halakha is in accordance with Rabbi Akiva, who said: A seller sells with an “open eye”;

if so, when one sells three trees within his field, the purchaser has a path by which to reach the trees. Why, then, did Rabbi Elazar say that the purchaser has no path through the seller’s land? Does he disagree with his teacher!?

He said to him,

Rava: Rabbi Elazar agrees with his teacher Shmuel that the halakha is in accordance with Rabbi Akiva. But Rabbi Elazar’s question against Rabbi Yohanan was because

the Mishna is

not established as being in accordance with Rabbi Akiva

but rather in accordance with the Sages. Since Rabbi Yohanan referred to the words of the Mishna, Rabbi Elazar challenged him: If, according to the Sages, he has no path, all the more so he has no full measure of a picker’s basket.

And

from where

do I know that the Mishna is not taught according to Rabbi Akiva?

As it teaches:

One who purchased three, purchased land;

if they grew, he must prune,

the seller has the right to cut the branches that protrude from the tree and inconvenience him.

And if it enters your mind

that our Mishna is according to

Rabbi Akiva

that it was taught,

why must he prune!?

For

he

said

Rabbi Akiva:

He sells with an open eye

he

sells,

and presumably his intention was to give the purchaser the right to leave the branches without cutting them.

He said to him

Rav Naḥman bar Yitzḥak: It is possible that our Mishna was taught even according to Rabbi Akiva, and even according to Rabbi Akiva, if they grew, he must prune.

For

say that Rabbi Akiva said:

he sells with an open eye,

in the case of a pit and a cistern, for they do not diminish the land,

neither the pit that the purchaser acquired nor the path that we give him damages the seller, therefore he sells with an open eye and gives him a path.

But

in the case of a tree, do you hear him say so!?

Does Rabbi Akiva really hold that the seller sells with an “open eye” to such an extent that he subordinates his land to everything that the tree’s branches will grow?

For the shade of the branches damages the seeds that the landowner sows there; and moreover, the seller will not be able to plow there with oxen because of the height of the goad.

Does Rabbi Akiva not concede, regarding a tree that leans into his fellow’s field, that he cuts

the landowner the branches protruding into his field to

the full

height of

a goad above the plow,

as we learned above, 27b?

And it is reasonable that Rabbi Akiva also agrees that the seller does not sell with an “open eye” to such an extent that he entirely destroys his land.

If so, it is possible to establish the Mishna according to Rabbi Akiva, for regarding a path, Rabbi Akiva indeed holds that the purchaser has permission to pass through the seller’s field, since he suffers no loss; but if the branches grew, he must prune them.

And if the Mishna can be interpreted according to Rabbi Akiva, then from what Rabbi Elazar said—“Now, he has no path, yet he has the full measure of a picker’s basket”—it follows that Rabbi Elazar rules in accordance with the Sages who dispute Rabbi Akiva, and disagrees with his teacher Shmuel, who ruled in accordance with Rabbi Akiva.

Now the Gemara returns to the words of Rabbi Ḥiyya bar Abba above, and concludes:

It was taught

in a beraita

in accordance with Rabbi Ḥiyya bar Abba

in the name of Rabbi Yohanan: One who purchases three trees

has thereby acquired beneath them, between them, and outside them the full measure of a picker’s basket.

Or perhaps the owner of the land sows it, and the land does not belong to the buyer, but is merely subordinated to him so that he may tread upon it when gathering the fruit.

He said,

he asked,

Abaye said to Rav Yosef: That full measure of a picker’s basket,

that area of “the full measure of a picker’s basket” that the purchaser acquired from the landowner so that he could gather the fruits without difficulty,

who sows it?

Does the owner of the tree, the purchaser, sow it, and is he considered the owner of this land?

Or perhaps the owner of the land sows it, and the land does not belong to the purchaser; rather, it is subordinated to him, so that he may tread upon it when gathering the fruits.

He said to him

Rav Yosef:

You have learned it,

an answer to the question can be learned from the Mishna in the chapter “One Who Sells Produce.”

For thus we learned: One who has a garden inside his fellow’s garden enters at the time when people ordinarily enter and leaves at the time when people ordinarily leave, and he may not bring merchants into it, nor may he pass through it into another field.

And

the outer owner

[the owner of the outer garden]

sows the path,

because, since the inner garden is in the middle of his field, we are certain that the outer owner did not waive the path entirely for the inner owner, so that he could not sow there.

And just as the landowner—the “outer owner”—sows the path, even though it is subordinated to the owner of the inner garden, so too the landowner, the seller of the trees, may sow the area of “the full measure of a picker’s basket,” even though it is subordinated to the owner of the trees, so that he may walk there when gathering his fruits.

He said,

he asked,

to him

Abaye:

Are they comparable?

Can the law of “the full measure of a picker’s basket” in this discussion be compared to the law of the path of the owner of the inner garden!?

For

there,

when the outer owner sows the path,

the purchaser suffers no loss,

and the owner of the inner garden, through the outer owner’s sowing, since the path serves him only for passage, and he walks as usual and treads upon the seeds.

But here,

if the landowner sows the area of “the full measure of a picker’s basket,”

the purchaser suffers loss

the owner of the tree, and he can prevent the landowner from sowing there.

For he says to him

the purchaser says to the seller: Is it not so that

the fruits will become soiled,

if the fruits of the tree fall upon the seeds, therefore I am unwilling that you sow this area, which is subordinated to my trees.

And if we come to compare the subject of that Mishna with our subject,

it is comparable only to

what is explained there in the

conclusion.

For thus we learned: If the court gave the owner of the inner garden a path along the side in order to reach his garden, and this path was given to him with the agreement of both of them, we are certain that the outer owner waived the path to him entirely, for it to be designated for walking and not for sowing.

Therefore, the inner owner enters whenever he wishes and leaves whenever he wishes,

and neither this one nor that one is permitted to sow it.

And just as in that path neither this one nor that one is permitted to sow it, so too in our case neither this one nor that one is permitted to sow the “full measure of a picker’s basket.”

And it is a kal va-chomer: If regarding that path, in which sowing causes only a minor loss, since the seeds slightly obstruct walking, the landowner is not permitted to sow it, all the more so regarding “the full measure of a picker’s basket,” where the landowner is not permitted to sow there, since the purchaser suffers a substantial loss, as the fruits become soiled through the seeds. And we conclude:

It was taught

in a beraita

in accordance with Abaye: He has thereby acquired beneath them, between them, and outside them the full measure of a picker’s basket, and neither this one nor that one is permitted to sow it.

And

the Gemara discusses:

How much shall there be between them

between the trees, and it will be said: One who purchased three purchased land beneath them and between them, and so forth?

For if the trees are excessively close to one another, they are like a forest that is destined to be uprooted, and they are not significant.

And if the trees are excessively far from one another, they do not join one another; they are like three separate trees and are not considered an “orchard” for the purpose of acquiring the land.

Rav Yosef said that Rav Yehuda said that Shmuel said: He acquires land only

with

four cubits

of space between one tree and another,

and up to eight

cubits.

For if the space between one tree and another is less than four cubits, the plow is not fit to plow between them, and they are destined to be uprooted.

And if they have eight cubits of space, they are “scattered” and do not join together to be considered an “orchard.”

And

Rava said that Rav Nahman said in the name of Shmuel:

not in accordance with the words of Rav Yosef, but

from eight

cubits

up to sixteen,

if they are planted within eight cubits, they are a “forest” and not a “tree field”; and likewise, if they have sixteen cubits, they are not a “tree field,” but each tree and tree is considered on its own.

Rav Yosef became ill and forgot his learning.

Abaye said to Rav Yosef: Do not dispute Rav Nahman,

for certainly Rav Nahman’s tradition in the name of Shmuel is the correct tradition, whereas you became ill and forgot.

For

this

we learned

in

the Mishna in accordance with him

of Rav Nahman.

It is stated in the Torah [Deuteronomy 22:9]: “You shall not sow your vineyard with mixed kinds, lest the fullness of the seed that you sow and the produce of the vineyard become sanctified.” And the Sages received that one who sows beside a vineyard, and all the more so within it, has thereby “sanctified” it, and both of them—the seed and the vineyard—are prohibited from benefit and not only a vineyard is prohibited through the seed beside it, but even one who sows adjacent to a single vine has both of them prohibited from benefit.

In any event, the law of a vineyard and the law of a single vine are not equal, for one who sows adjacent to a vineyard is required to distance himself four cubits, whereas one who sows adjacent to a single vine need only distance himself three handbreadths.

And what is a “vineyard”? The Sages received that a “vineyard” means at least five vines planted in two rows: two vines opposite two vines, and a fifth vine projecting like a tail.

Five vines standing in one row are not a “vineyard”; and likewise, if the vines were too close to one another, or were too far from one another, this is not a “vineyard.” One may sow between the vines, and each of the vines is judged as a single vine, from which one need distance only three handbreadths.

In order to permit sowing between the rows of vines, one must also distance oneself from their vine branches; it is not sufficient that the roots of the vines be distant from one another.

For we learned [

Kilayim, chapter 4, Mishna 9]:

One who plants his vineyard sixteen cubits by sixteen cubits,

where there were sixteen cubits between row and row, this is not a vineyard, and

it is permitted to bring seed there,

between row and row.

The reason for the matter is: the vines are too far from one another, for there is a gap of sixteen cubits between row and row. It follows that there is no “vineyard” here, and one may sow between the rows, provided that he distances himself three handbreadths from the vines, as is the law concerning one who sows adjacent to a single vine.

Rabbi Yehuda said: There was an incident

that took place

in Tzalmon [

a place name]

with

one person

who planted his vineyard sixteen by sixteen cubits,

and he wished to sow between the rows.

And

what did he do? In one year

he would turn the vine branches [

the branches of the trees, the vine branches] of

two rows

of vines

to one side, and sow the plowed ground [

In that man’s vineyard there were many rows, and he wished to sow between them. What did he do? He turned the vine branches of two adjacent rows and inclined them toward the gap between them; and he did likewise with the vine branches of the two rows planted farther on, and so with all the rows of the vineyard. Afterward he plowed—made plowed ground—in the gap between pairs of rows, where the vine branches were not in that airspace, and sowed there.]

Afterward, he plowed the soil in the space between each pair of rows, where the branches were not in the same airspace, and sowed there.]

For a year

another

he would turn the vine branches

of the two rows of vines

to the place of the seed,

where he had sown the previous year,

and sow the fallow ground,

which the previous year had been fallow from plowing and sowing.

And this incident came

before

the Sages, and they permitted it.

It follows that specifically when there are sixteen cubits between them are the vines considered far from one another; but if there were less than sixteen cubits between them, this is a “vineyard,” and it is forbidden to sow there.

And just as with regard to a vineyard, up to sixteen cubits the vines are considered as one and are not “scattered,” to be judged each on its own, so too with regard to one who sells his trees: if there are not sixteen cubits between one tree and another, this is a “tree field,” and if he bought three, he acquired the ground, in accordance with the words of Rav Nahman.

Therefore Abaye said to Rav Yosef: Do not dispute Rav Nahman, for certainly his tradition is true; and what you said in the name of Rav Yehuda in the name of Shmuel is not correct, but rather you became ill and forgot.

He said to him

Rav Yosef:

I do not know,

I do not hold that the law follows that Mishna,

but

as I said: above eight cubits they are “scattered,” and they are not a “tree field” with regard to the sale of the ground, nor a “vineyard” with regard to the prohibition of mixed kinds of a vineyard.