Babylonian Talmud: Tractate Baba Bathra

Folio 83a

in Dura di-ra'awatha¹  [where three trees, planted at distances of less than eight cubits between them, were sold], and, when [the disputants] came before Rab Judah, he said unto [the buyer]: Go [and] give him [his share in the ground, even though the spaces between the trees are just] enough for a pair of oxen and their [ploughing] outfit. I did not know [at the time] how large was the 'space of a pair of oxen and their outfit'. When, however, I heard the following [Mishnah in] which we learnt: A man must not plant a tree near his neighbour's field²  unless he has kept at a distance of four cubits:³  and in connection with this it has been taught: 'The four cubits mentioned are the dimensions of the space required for attending to the vineyard': I concluded that the 'space of a pair of oxen and their outfit' is four cubits. But is there not also a Mishnah which agrees with [the report of] R. Joseph? Surely⁴  we learnt:⁵  R. Meir and R. Simeon say: He who plants his vineyard [leaving distances of] eight cubits [between the rows] may insert seed there!⁶  — A practical decision⁷  is, nevertheless, preferable.⁸

[The statement] of R. Joseph who follows R. Simeon may be regarded as satisfactory. [since] we have heard [a definition of] scattered [trees] and we have [also] heard [a definition of] closely [planted trees]. [With regard to trees] scattered, [we have the Mishnah] just mentioned.⁹  [As regards trees planted] closely, it has been taught:¹⁰  A vineyard planted on [an area of] less than four cubits is not [regarded as] a vineyard — these are the words of R. Simeon. And the sages say: [It is regarded as a] vineyard, the intervening vines being treated as if they were not [in existence].¹¹  [The statement], however, of R. Nahman who follows the Rabbis [cannot very well be considered satisfactory; for] we have heard [a definition of] scattered [trees, but] have we heard [a definition of] closely [planted trees]? — This [latter definition is arrived at] logically: Since according to R. Simeon [the distances between closely planted trees are] half [of those of scattered trees], according to the Rabbis also, [the proportion of the distances is a] half.

Raba said: The law is [that a buyer of three trees acquires implicitly the ground also when the distances between the respective trees are] from four¹²  to sixteen cubits.¹³  In agreement with Raba's opinion it has been taught: How near [to each other] may [the trees] be? — [No nearer than] four cubits. And how far removed may they be? — [No more than]¹⁴  sixteen cubits. [He who buys three trees of these] has [implicitly] acquired the [necessary] ground and the intervening [young] trees. Consequently, [if] a tree dries up or is cut down [the buyer of the trees] retains [his rights in] the ground. [If the distances between the trees are] less, or more than [the figures] given, or if [the trees] were purchased one after the other, [the buyer] does not acquire either the ground or the intervening [young] trees. Consequently, [if] a tree dries up or is cut down, [the buyer] retains no [title to the] ground.¹⁵

R. Jeremiah inquired: Does one measure [the required distances between the trees] from the thin¹⁶  or thick¹⁷  parts [of the trees]? — R. Gebiha of Be-Kathil said to R. Ashi: Come and hear! We learnt:¹⁸  [In the case of] a layer¹⁹  of the vine, one is to measure from the second root,²⁰  only.

R. Jeremiah inquired: What is the law when one sold three branches of [one] tree, [four cubits distant from one another, and covered with alluvium at their knots so that they appear as three separate trees]?²¹  — R. Gebiha of Be-Kathil said to R. Ashi: Come and hear! We learnt:²²  Where one bends three vines [covering the middle parts with earth so that the layers,²³  when detached from the original vines, may each form two vines] and their [new] roots are seen,²⁴  if there is a distance between them of four to eight cubits they combine, said R. Eleazar b. Zadok, to form a vineyard,²⁵  and if not, they do not combine.²⁶

R. Papa inquired: What is the law when he sold two [trees] in his field and one on [its] border, [do they combine²⁷  or not]? [If it is replied that in this case they combine], what is the law [when he sold] two [trees] in his [own field] and one [tree which he owned together with its ground] in [the field] of his neighbour? — The matter stands undecided.²⁸

1. V. p. 222, n. 8
2. In order that, when ploughing round the tree, he should not have to draw the plough through his neighbour's field.
3. Supra 18a; 26a.
4. For this reading, cf. BaH, a.l.
5. Kil. IV, 9.
6. Between the rows, though the intervening spaces are only eight cubits in width. Why. then, did Abaye tell R. Joseph that he must not dispute the report of R. Nahman?
7. Cf. Shab. 21a, and further references there.
8. The Mishnah describing the occurrence in Zalmon, where the action of the planter received the definite approval of the Sages, is more to be relied upon than the other part of that Mishnah, which is a record of theoretical opinion only.
9. Supra, quoted from Kil. IV, 9. This Mishnah defines 'scattered trees' as those planted at distances of no less than eight cubits from each other.
10. Kil. V, 2; supra 37b; infra 102b.
11. The Rabbis' opinion is based on the assumption that the intervening vines are not to remain in the vineyard, but to be transplanted. Trees that are destined to be removed are regarded as already removed.
12. In accordance with Rab Judah's decision (which has not been disputed by the Rabbis) in the case of the shepherds' settlement.
13. As the Sages ruled in the case of the Zalmon vineyard.
14. Cf. Tosaf. s.v. [H]. According to Rashi. s.v. [H] 'just under sixteen cubits'.
15. Is not entitled to replace the dead, or felled tree by another.
16. I.e., the stem.
17. I.e., near the roots.
18. Kil. VII. 1.
19. [H], an undetached shoot of the vine laid in the ground for propagation.
20. Which proves that the measurement is made from the thick part of the tree (Tosaf. s.v. [H] a.l.). Rashb. (s.v. [H] a.l.), giving [H] the interpretation of 'grafting'. concludes that the measurement is to be neither from the thick (first knot) nor from the thin (third knot) of the vine (or any other tree). R. Gersh. (a.l.) regards the second root as the thin part of the vine.
21. Are they regarded as three separate trees, the buyer consequently acquiring possession of the necessary ground, or as one tree, since they grow from the same stem?
22. Kil. VII, 2.
23. Cf. n. 5.
24. The layers have generated their own roots.
25. A vineyard consists of no less than five vines. Since each of the three layers. now that their roots are generated. form two vines, the original three vines have become six.
26. This Mishnah clearly proves that the junction of two vines at the same root does not prevent them from being regarded as separate vines. Likewise in the case of the purchase of three branches of one tree, so long as they are separated by the proper distances, they are regarded as three separate trees.
27. To entitle the buyer to acquire ownership of the necessary ground.
28. [H] = [H] 'let it stand'. An expression used when no definite answer could be given to any question or inquiry. Others regard [H] as formed from the initials of [H] (Elijah the Tishbite will solve all difficulties and enquiries).

R. Ashi inquired: [In the case of the sale of three trees] does a [water] cistern [situated between them] form a division?¹  [If not],²  does a water canal³  form a division? [If this also is not regarded a division], what [is the law if] a reshuth harabbim⁴  [intercepts] or a nursery of young inoculated palm-trees? — The matter stands undecided.

Hillel inquired from Rabbi: What if a cedar sprang up between them?⁵  [Is it regarded as a division between the trees]?⁶  — [What a question! If it] sprang up [after the sale], it [obviously] grew in [the buyer's] own territory! But [no; this is the question: What if] there was a cedar between them [at the time of the sale]? — He replied unto him: He has certainly acquired⁷  [its ownership].

What must be the disposition [of the three trees]?⁸  — Rab said: As a straight line; and Samuel said: Like a tripod.⁹  He who said, 'as a straight line' [agrees]¹⁰  so much the more [in the case when they are arranged] as a tripod.¹¹  But he who said, 'like a tripod' [holds the opinion that if the trees are arranged] as [in] a straight line [the ground is] not acquired, because one can sow between them.¹²  R. Hamnuna raised a difficulty: Is not the reason given by him, who insists on a triangular disposition. that one cannot sow between them? If so, let the ground be acquired also by him to whom three Roman thorns¹³  have been sold, since one cannot sow between them! — He replied to him: Those [thorns] are of no importance, [but] these [trees] are important.¹⁴

MISHNAH. HE WHO SELLS THE HEAD OF LARGE CATTLE HAS NOT SOLD THE FEET; HE WHO SOLD THE FEET HAS NOT SOLD THE HEAD. [IF] HE HAS SOLD THE LUNGS¹⁵  HE HAS NOT SOLD THE LIVER, [IF] HE HAS SOLD THE LIVER HE HAS NOT SOLD THE LUNGS. BUT, IN [THE CASE OF] SMALL CATTLE, [IF] HE HAS SOLD THE HEAD HE HAS SOLD THE FEET, [IF] HE HAS SOLD THE FEET HE HAS NOT SOLD THE HEAD. [IF] HE HAS SOLD THE LUNGS HE HAS SOLD THE LIVER, [IF] HE HAS SOLD THE LIVER HE HAS NOT SOLD THE LUNGS.

FOUR¹⁶  [DIFFERENT] LAWS [ARE APPLICABLE] TO SALES.¹⁷  [IF] ONE HAS SOLD WHEAT AS GOOD, AND IT TURNS OUT TO BE BAD, THE BUYER MAY WITHDRAW [FROM THE SALE]. [IF SOLD AS] BAD, AND IT TURNS OUT TO BE GOOD, THE SELLER MAY WITHDRAW. [IF AS] BAD, AND IT WAS FOUND TO BE BAD; [OR AS] GOOD, AND IT WAS FOUND TO BE GOOD, NEITHER MAY WITHDRAW. [IF ONE HAS SOLD WHEAT AS] DARK¹⁸ — COLOURED, AND IT TURNS OUT TO BE WHITE, [OR AS] WHITE, AND IT TURNS OUT TO BE DARK;¹⁸  [ OR IF ONE HAS SOLD] WOOD [AS] OLIVE, AND IT TURNS OUT TO BE SYCAMORE, [OR AS] SYCAMORE, AND IT TURNS OUT TO BE OLIVE; [OR IF A LIQUID HAS BEEN SOLD AS] WINE, AND IT TURNS OUT TO BE VINEGAR, [OR AS] VINEGAR, AND IT TURNS OUT TO BE WINE, BOTH MAY WITHDRAW.

GEMARA. R. Hisda said: If one has sold to another what was worth five for six¹⁹  and [subsequently]²⁰  the price has risen to eight,²¹  since the buyer has been imposed upon he may withdraw, but not so the seller,²²  because

1. To deprive the buyer from any title to the ground.
2. Because the water is not exposed.
3. Where the water is exposed.
4. Reshuth harabbim (v. p. 307, n. 8), its normal width is sixteen cubits. Here, of course, (cf. Raba's statement, inter alia, supra 83a), it is assumed to be between four, and just under sixteen cubits in width.
5. Between the three trees sold.
6. V. n. 5.
7. Lit. 'he acquired and acquired'.
8. About which it has been taught that, if the distances between them are from four to sixteen cubits, the necessary ground also is acquired.
9. Planted in triangular shape.
10. That the ground also is acquired.
11. When the trees are arranged triangularly it is more difficult to plough the intervening ground. and the seller is, therefore, less likely to retain it for himself.
12. The plough can easily pass between the trees.
13. Prob. eryngo.
14. Two conditions are required: 1. Importance of the trees, and 2. Inability to draw the plough, i.e., to sow between them.
15. Lit., 'windpipe'.
16. 1. the buyer, 2. the seller, 3. neither, and 4. both may withdraw.
17. Lit., 'sellers'.
18. Dark red.
19. Thus overcharging the buyer a sixth of the selling price (fifth of the value of the object).
20. After the sale, and before the period allowed to the buyer to consult a dealer or a friend, has elapsed; v. B.M. 49b.
21. So that now the seller is losing much more than a sixth, and wishes, therefore, to withdraw.
22. Although the period allowed for consulting a dealer or friend has not elapsed, and though, consequently, the buyer may still withdraw.