Babylonian Talmud: Tractate Baba Bathra

Folio 71a

MISHNAH. [IF A MAN SELLS A FIELD] HE DOES NOT INCLUDE¹  THE WELL NOR THE WINE PRESS NOR THE DOVECOTE, WHETHER IN USE OR NOT IN USE,²  AND [IF HE REQUIRES] A RIGHT OF WAY TO THEM HE MUST BUY IF [FROM THE PURCHASER]. THIS IS THE OPINION OF R. AKIBA.³  THE SAGES HOWEVER SAY THAT HE IS NOT REQUIRED TO DO SO.⁴  R. AKIBA ADMITS THAT IF THE VENDOR SAYS TO HIM, [I SELL YOU ALL] EXCEPT THESE, HE NEED NOT BUY A RIGHT OF WAY.⁵  IF HE SELLS THESE THINGS [WITHOUT THE FIELD] R. AKIBA SAYS THAT HE [THE PURCHASER] HAS NO NEED TO BUY A RIGHT OF WAY TO THEM, BUT THE SAGES SAY THAT HE HAS. THE ABOVE RULE⁶  APPLIES ONLY TO A VENDOR, BUT A DONOR IS HELD TO MAKE ALL THESE PART OF THE GIFT.⁷  IF BROTHERS DIVIDE AN INHERITANCE, ONE WHO TAKES POSSESSION OF A FIELD TAXES POSSESSION OF ALL THESE THINGS.⁸  ONE WHO SEIZES THE PROPERTY OF A PROSELYTE⁹  IN TAKING POSSESSION OF A FIELD TAKES POSSESSION OF ALL THESE THINGS. IF A MAN SANCTIFIES¹⁰  HIS FIELD HE SANCTIFIES ALL THESE THINGS.¹¹  R. SIMEON, HOWEVER, SAYS THAT IF A MAN SANCTIFIES HIS FIELD HE SANCTIFIES ONLY¹²  THE FULL-GROWN¹³  CAROB AND THE CROPPED¹⁴  SYCAMORE TREE.¹⁵

GEMARA. Why should the rule of a sale be different from that of a gift? — Judah b. Nakusa explained [the reason] in the presence of Rabbi [saying], The one [the vendor] specifies,¹⁶  the other [the donor] does not specify. What do you mean by saying that the one specifies and the other does not specify, when the fact is that just as the one does not specify so the other does not specify? — What we should say is: The latter ought to have specified,¹⁷  the former has no need to specify.

A man gave instructions [saying], 'Give to so-and-so a room holding a hundred barrels.' It was found that the room [in question] would hold a hundred and twenty barrels. Mar Zutra [on hearing the case] said, He gave him [the space of] a hundred barrels and not of a hundred and twenty.¹⁸  Said R. Ashi to him: Have we not learnt, THIS RULE APPLIES ONLY TO A VENDOR, BUT A DONOR IS PRESUMED TO MAKE ALL THESE PART OF THE GIFT, from which we infer that a donor is presumed to give in a liberal spirit?¹⁹  So here [we say that] the donor gives in a liberal spirit.²⁰

IF A MAN SANCTIFIES A FIELD HE SANCTIFIES etc. R. Huna said: Although the Rabbis have laid down that when a man buys two trees in another man's field he does not acquire any of the soil with them,²¹  yet if a man sells a field and reserves to himself two trees, he retains some of the soil with them.²²  [This rule is valid] even according to R. Akiba who says that the vendor sells in a liberal spirit;²³  [for] this applies only to a well and a cistern which do not exhaust the soil, but in the case of trees which do exhaust the soil,

1. Even though he inserts the words, 'it and all its contents'.
2. Lit., 'desolate or inhabited'.
3. Who said supra 64b that the vendor sells in a liberal spirit.
4. Because, according to them, he interprets the terms of sale strictly.
5. As otherwise the exception would be quite superfluous.
6. That the well etc. are not included in the field.
7. Because a donor is supposed to give in a liberal spirit.
8. Because their object in dividing is to get entirely clear of one another.
9. Who dies without Jewish issue, and whose property can be seized by the first comer. V. supra p. 181, n. 5.
10. I.e., dedicates to the Sanctuary. V. Lev. XXVII, 26.
11. Because sanctifying is a kind of gift.
12. Of all these things excluded in case of a sale.
13. Lit., 'grafted'.
14. Lit., 'block of'.
15. The meaning of this is discussed in the Gemara.
16. The objects reserved.
17. If the donor wishes to reserve things for himself, he should specify them, because he is supposed to give in a liberal spirit.
18. And therefore he acquires only that portion of the room which will hold a hundred barrels.
19. Lit., 'with a bounteous eye'.
20. And the whole room is given to the recipient.
21. As he would if he bought three trees. V. infra 81a.
22. I.e., the soil under the trunk.
23. V. supra 64b.

if the vendor did not [tacitly] reserve some soil for himself, the purchaser could say to him [when the trees wither], pluck up your tree and be off with it.¹

We have learnt:²  R. SIMEON SAYS THAT IF A MAN SANCTIFIES HIS FIELD HE ONLY SANCTIFIES THE FULL-GROWN CAROB AND THE CROPPED SYCAMORE TREE; and in connection with this it was taught: R. Simeon said: What is the reason? Because they suck from a sanctified field.³  Now if you assume that the sanctifier tacitly reserves something to himself, then when the trees suck they suck from his property [do they not]? [We must suppose therefore that] R. Simeon follows R. Akiba⁴  and that R. Huna was following the Rabbis.⁵  [But if R. Huna was stating his rule from the point of view of] the Rabbis, it is self-evident?⁶  — Its practical bearing is that if the trees fall he can plant them again.⁷

1. Immediately (v. Tosaf.), and we assume that the vendor wished to keep a tree for himself in that place in perpetuity.
2. Here comes an objection to the statement just made by the Gemara that R. Huna's rule holds good even on the view of R. Akiba.
3. And the rule is that that which sucks from sanctified ground itself becomes sanctified.
4. In holding that the vendor sells in a liberal spirit, and therefore when a man sanctifies a field he tacitly reserves nothing to himself.
5. And that his ruling does not accord with the view of R. Akiba.
6. I.e., it is obvious that the vendor reserves something.
7. Though he could not tell him, 'Pluck up your tree and be off with it immediately,' it might be assumed that he could not plant them anew once they had fallen.