Bava Batra 82b (פב:) — the Talmud in English

the full measure of

the width of an

ora,

the one who gathers the fruit,

and his basket

in his hand, so that the buyer can gather the fruit of the outer branches without having to squeeze into a narrow space or climb the tree.

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

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

Likewise, one who buys three trees within his fellow’s field: according to the Sages, he has no right to pass through the seller’s field until he purchases a path from the landowner; but according to Rabbi Akiva, the buyer may pass through the seller’s field, because he sold them to him with a “generous eye.”

The reason for these laws according to the Sages is that the buyer acquired a particular piece of land for himself, and the seller’s land is not subordinated to the buyer’s needs. [This is unlike one who buys two trees, as will be explained in the Gemara.]

He challenged him,

Rabbi Elazar

raised an objection

to Rabbi Yohanan’s statement:

Now,

to pass

through

the seller’s field to reach his trees,

he has no

right,

as

the seller’s field

is different land,

and is not subordinated to the buyer.

And is it really the case that

the full measure of an ora and his basket

is his!?

The matter follows by means of a kal va-chomer: If he has no path, even though he cannot tend to his trees and benefit from them without access to them,

then certainly, with regard to the full measure of an ora and his basket—which is not so necessary, since he can climb the tree or stand beneath it and gather the fruit—he should likewise have no such right. Why, then, did Rabbi Yohanan say that the buyer has the full measure of an ora and his basket outside the tree and its branches!?

Rabbi Zeira said: From the words of our master,

Rabbi Elazar, in his objection to Rabbi Yohanan,

we learn:

If one bought

three

trees,

it is he who has no path,

because the land itself belongs to him, whereas the seller’s land is “different land.”

This

is when he bought

two; he has

a path through the seller’s field, because

he says to him,

the seller:

This

is the case even without this consideration: my trees

are standing on your land,

for one who buys two trees acquires no land. Why, then, do I leave my trees in your land? Because your land is subordinated to me for all the needs of the trees; accordingly, for the same reason, I also have a path through your field.

He said,

Rabbi Nahman bar Yitzhak

asked Rava: Shall we say that Rabbi Elazar does not accept the position of his teacher, Shmuel [the question being whether Rabbi Elazar’s statement here contradicts 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 a “generous eye,”

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

He said to him,

Rava replied: Rabbi Elazar agrees with his teacher Shmuel that the halakha is in accordance with Rabbi Akiva. But Rabbi Elazar challenged Rabbi Yohanan because

the Mishna cannot be established in accordance with Rabbi Akiva

but only in accordance with the Sages; and since Rabbi Yohanan was referring to the words of the Mishna, Rabbi Elazar challenged him: If, according to the Sages, the buyer has no path, all the more so he has no full measure of an ora and his basket.

But from where

do I know that the Mishna was not taught according to Rabbi Akiva’s view?

From what it teaches:

“One who bought three [trees] has acquired land; when they grow, he must cut them back”—the seller has the right to cut off branches that protrude from the tree and cause him difficulty.

And if it enters your mind

that our Mishna was taught according to the opinion of

Rabbi Akiva,

why must he cut them back!?

He

would

say:

Rabbi Akiva:

A seller sells with a generous eye;

he

sells

with a generous eye,

and presumably his intention was to grant the buyer the right to leave the branches without cutting them.

He said to him,

Rabbi Nahman bar Yitzhak: It is possible that our Mishna was taught even according to Rabbi Akiva, and even according to Rabbi Akiva, when the branches grow, he must cut them back.

For

say that Rabbi Akiva said: A seller sells with a generous eye

only

with regard to a pit or cistern, which do not damage the land,

as neither the pit acquired by the buyer nor the path that we grant him damages the seller.

Therefore, he sells with a generous eye and grants him a path.

that a seller sells with a good eye only

But with regard to a tree, have you heard this from him!?

Could Rabbi Akiva really hold that a seller sells with such a “generous eye” as to subordinate his land to everything into which the tree’s branches might grow!?

After all,

the shade of the branches damages the crops sown there by the landowner; moreover, the seller will be unable to plow there with oxen because of the height of the goad.

Does Rabbi Akiva not concede, with regard to a tree that leans into his fellow’s field, that the owner of the field cuts

the branches protruding into his field to the full height of a goad above the plow, as we learned above, on 27b?

And it is reasonable that even Rabbi Akiva agrees that a seller does not sell with such a “generous eye” as to deprive his land entirely.

If so, it is possible to establish the Mishna according to Rabbi Akiva,

for although with regard to a path Rabbi Akiva holds that the buyer has permission to pass through the seller’s field, since the seller suffers no loss, when the branches grow, he must cut them back.

height of a

And if the Mishna can be interpreted according to Rabbi Akiva, then from Rabbi Elazar’s statement—“Now, if he has no path, does he have the ora and his basket?”—it follows that Rabbi Elazar rules in accordance with the Sages, who disagree with Rabbi Akiva, and disagrees with his teacher Shmuel, who ruled in accordance with Rabbi Akiva.

The Gemara now returns to the statement of Rabbi Hiyya bar Abba above and concludes:

It was taught in a beraita

in accordance with the opinion of Rabbi Hiyya bar Abba in the name of Rabbi Yohanan: One who acquires three trees has acquired the land beneath them and between them, and outside them the full measure of an ora and his basket.

And if the Mishna can be interpreted according to Rabbi Akiva, then from Rabbi Elazar’s statement — “Now, if he has no path, does he have the width of a picker’s basket?” — it follows that Rabbi Elazar rules according to the Sages, contrary to his master Shmuel, who ruled according to Rabbi Akiva.

He said,

Abaye

asked Rav Yosef: That full measure of an ora and his basket,

that area of the full measure of an ora and his basket, which the buyer acquired from the landowner so that he could gather the fruit without difficulty,

who sows it?

Does the owner of the tree, the buyer, sow it, meaning that he is considered the owner of this land?

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 said to him,

Rav Yosef

said: You have learned it,

one can derive the answer to the question from the Mishna in the chapter “One Who Sells Produce.”

Does the owner of the tree, the buyer, sow it, meaning that he is considered the owner of this land? Or perhaps the landowner sows it, and the land does not belong to the buyer; rather, it is subject to him, so that he may walk upon it while picking the fruit.

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

And the outer one [

the owner of the outer garden]

sows the path,

because the inner garden is situated in the middle of his field. We are certain that the outer owner did not waive the path entirely to the inner owner, thereby preventing himself from sowing there.

And just as the landowner—the “outer one”—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 an ora and his basket,” even though it is subordinated to the owner of the trees, so that he can walk there while gathering his fruit. He said,

Abaye

asked him:

Are the cases comparable?

Can the law of “the full measure of an ora and his basket” in this discussion really be compared to the law of the path belonging to the owner of the inner garden!?

After all,

there,

when the outer owner sows the path,

the buyer suffers no loss,

asked

the owner of the inner garden,

from the outer owner’s sowing, since the path serves him only for passage, and he walks as usual, treading upon the crops.

Can the law of “the width of a picker’s basket” in our discussion really be compared to the law of the path belonging to the owner of the inner garden!?

But here,

if the landowner sows the area of “the full measure of an ora and his basket,”

the buyer suffers a loss

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

For he says to him: the buyer says to the seller: This will soil the fruit,

if the tree’s fruit falls upon the crops,

and therefore I do not agree that you should sow this area, which is subordinated to my trees.

the buyer suffers a loss

And if we are to compare the case in that Mishna with our case,

it is comparable only to

what is stated there in

the latter clause.

For 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 consent of both parties, we are certain that the outer owner waived the path to him entirely, so that it would be designated for passage and not for sowing. Therefore, the inner owner enters whenever he wishes and leaves whenever he wishes, and neither one may sow it.

And just as in the case of that path neither one may sow it, so too in our case neither one may sow the area of “the full measure of an ora and his basket.”

And this follows by means of a kal va-chomer: If with regard to that path, where sowing causes only a minor loss, since the crops impede passage only slightly, the landowner may not sow it, all the more so with regard to the area of “the full measure of an ora and his basket,” where the landowner may not sow, since the buyer suffers a substantial loss, as the fruit becomes soiled by the crops.

And we conclude:

It was taught

in a beraita

in accordance with Abaye: He has acquired the land beneath them and between them, and outside them the full measure of an ora and his basket, and neither one may sow it.

and neither one may sow it.

And

the Gemara asks: How much must there be between them

between the trees, for us to say: One who buys three trees acquires the land beneath them and between them, and so forth?

For if the trees are too close to one another, they are like a grove destined to be uprooted, and are not significant.

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

Rav Yosef said that Rav Yehuda said that Shmuel said:

He acquires land only when there are

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 suitable for plowing between them, and they are destined to be uprooted.

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

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 suitable for plowing between them, and they are destined to be uprooted.

And if they have eight cubits between them, they are “scattered” and do not combine to be considered a “tree field.”

And

Rava said that Rav Naḥman said that Shmuel said:

not in accordance with the statement of Rav Yosef, but

from eight

cubits

up to sixteen,

if they are planted within eight cubits of one another, they are considered a “forest” and not an “orchard,” and likewise, if there are sixteen cubits between them, they are not an “orchard”; rather, each tree is considered independently.

Rav Yosef became ill and forgot his learning.

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

for certainly Rav Naḥman’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 his view,

that of Rav Naḥman.

It is stated in the Torah [Deuteronomy 22:9]: “You shall not sow your vineyard with diverse kinds, lest the fullness of the seed that you sow and the produce of the vineyard become consecrated.” And the Sages received a tradition that one who sows beside a vineyard, and all the more so within it, has “consecrated” it, and both of them—the seed and the vineyard—are forbidden for benefit and it is not only a vineyard that becomes forbidden on account of seed sown beside it; even one who sows near a single vine renders both of them forbidden for benefit.

In any event, the law of a vineyard and the law of a single vine are not the same, because one who sows near a vineyard must keep four cubits away, whereas one who sows near a single vine need keep only three handbreadths away.

And what is an “orchard”? The Sages received a tradition that an “orchard” consists of at least five vines planted in two rows: two vines opposite two vines, with a fifth vine extending beyond them like a tail.

Five vines standing in a single row do not constitute an “orchard.” Likewise, if the vines were too close to one another, or too far apart from one another, this is not an “orchard”; one may sow between the vines, and each of the vines is judged as a single vine, from which one need keep only three handbreadths away.

In order to permit sowing between rows of vines, one must also distance their shoots; it is not sufficient that the roots of the vines are far from one another.

As we learned [

Kilayim, chapter 4, mishna 9]:

One who plants his vineyard sixteen cubits by sixteen cubits,

where there were sixteen cubits between one row and the next, this is not an orchard, and

it is permitted to bring seed there,

between the rows.

The reason is that the vines are too far apart from one another, since there is a space of sixteen cubits between one row and the next. It follows that this is not an “orchard,” and one may sow between the rows, provided that he keeps three handbreadths away from the vines, in accordance with the law governing one who sows near a single vine.

Rabbi Yehuda said: There was an incident

that took place

in Tzalmon [

a place name]

in which

a man

planted his vineyard sixteen by sixteen cubits,

and wished to sow between the rows.

And

what did he do? In one year, he

would turn the shoots [

the branches of the trees, the vines] of

two rows

of vines

to one side, and plow the fallow ground [

There were many rows in that man’s vineyard, and he wished to sow between them. What did he do? He turned the shoots of two adjacent rows and bent them toward the space between them, and he did likewise with the shoots of the two rows planted farther on, and so with all the rows of the vineyard.

Afterward he plowed the space between each pair of rows—the shoots were not in that space—and sowed there.]

The following year

he

would turn the shoots

of the two rows of vines

toward the place of the seed,

where he had sown the previous year,

and sow the fallow ground,

which had been fallow and available for plowing and sowing the previous year.

And this incident came

before

the Sages, and they permitted it.

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

And just as, with regard to an orchard, up to sixteen cubits the vines are considered as one and are not “scattered”—so as to be judged each independently—so too, with regard to one who sells his trees: if there are not sixteen cubits between one tree and the next, this is an “orchard,” and if he purchased three, he acquired the land, in accordance with the statement of Rav Naḥman.

Therefore, Abaye said to Rav Yosef: Do not dispute Rav Naḥman, because certainly his tradition is authentic; and what you said in the name of Rav Yehuda in the name of Shmuel is incorrect, but rather you became ill and forgot.

He said to him,

Rav Yosef:

I do not know;

I do not maintain that the halakha follows that Mishna,

but

rather as I said: above eight cubits, they are “scattered,” and are not an “orchard” with regard to the sale of the land, nor an “orchard” with regard to the prohibition of diverse kinds in a vineyard.