Bava Batra 71

איפכא מתנינן לה

learned the reverse, that is to say, according to our version of the baraita, it is the judges of the exile who maintain that the claimant collects only half the sum, which corresponds to the halakha taught by Rava.

מתני׳ לא את הבור ולא את הגת ולא את השובך בין חרבין בין ישובין וצריך ליקח לו דרך דברי רבי עקיבא וחכמים אומרים אינו צריך

MISHNA: In continuation of the previous mishna (68b) discussing one who sells a field, the mishna teaches that even if he says that he is selling it and everything that is in it, has sold neither the cistern, nor the winepress, nor the dovecote, whether it is abandoned or utilized, as these items are not part of the field itself. And the seller must purchase for himself a path through the buyer’s domain to reach whatever remains his. This is the statement of Rabbi Akiva, who holds that one who sells, sells generously; therefore, whatever is not explicitly excluded from the sale is assumed to be sold, and it is presumed that the seller did not retain for himself the right to the path that he requires to access his property. And the Rabbis say: The seller need not purchase a path through the buyer’s domain, as it is assumed that since the seller withholds these items for himself, he also reserves a path to reach them.

ומודה רבי עקיבא בזמן שאמר לו חוץ מאלו שאינו צריך ליקח לו דרך מכרן לאחר רבי עקיבא אומר אינו צריך ליקח לו דרך וחכמים אומרים צריך ליקח לו דרך

And Rabbi Akiva concedes that when the seller says to the buyer in the bill of sale that he is selling the field apart from these things, i.e., the cistern and the winepress, he need not purchase for himself a path through the buyer’s domain. Since these items would have been excluded from the sale even if he had said nothing, it is assumed that he also meant to reserve for himself the right to access them. But if the seller kept the field but sold the cistern and winepress to another person, Rabbi Akiva says: The buyer need not purchase for himself a path through the seller’s domain to reach what he has bought, since a seller sells generously. But the Rabbis say: He must purchase for himself a path through the seller’s domain.

במה דברים אמורים במוכר אבל בנותן מתנה נותן את כולה האחין שחלקו זכו בשדה זכו בכולה המחזיק בנכסי הגר החזיק בשדה החזיק בכולה

In what case is this statement, that these items are excluded, said? It is said with regard to one who sells a field, but with regard to one who gives it away as a gift, it is assumed that he gives all of it, including everything found in the field. Similarly, with regard to brothers who divide their father’s estate among themselves, when they each acquire a field as part of their inheritance, they acquire all of it, including the items that would be excluded from a sale. So too, with regard to one who takes possession of the property of a convert, when he takes possession of a field, he takes possession of all of it.

המקדיש את השדה הקדיש את כולה רבי שמעון אומר המקדיש את השדה לא הקדיש אלא את החרוב המורכב ואת סדן השקמה

One who consecrates a field has consecrated all of it. Rabbi Shimon says: One who consecrates a field has not consecrated any of the items that are ordinarily excluded from a sale except for the grafted carob tree and the sycamore trunk.

גמ׳ מאי שנא מכר ומאי שנא מתנה פירש יהודה בן נקוסא לפני רבי זה פירש וזה לא פירש

GEMARA: The Gemara asks: In what way is a sale different from a gift, and in what way is a gift different from a sale? Why does the mishna distinguish between the two with regard to what is retained by the prior owner? Yehuda ben Nekosa explained before Rabbi Yehuda HaNasi: The difference between the cases is that this one, the seller, specified that certain items were not included in the sale, and that one, the donor, did not specify.

האי זה פירש וזה לא פירש זה לא פירש וזה לא פירש הוא אלא זה היה לו לפרש וזה לא היה לו לפרש

The Gemara asks: How can it be suggested that this one specified and that one did not specify, when in fact this one did not specify, and that one did not specify, as in neither case did the prior owner specify what items he was reserving for himself? Rather, the difference is that this one, the buyer, should have specified that those items that are not integral parts of the field are nevertheless included in the sale, and since he neglected to do so, he suffers the loss. But in the case of a gift, that one, the recipient, should not have specified what was included in the gift, as it would have been inappropriate for him to act in this manner.

ההוא דאמר להו הבו ליה לפלניא ביתא דמחזיק מאה גולפי אשתכח דהוה מחזיק מאה ועשרין אמר מר זוטרא מאה אמר ליה מאה ועשרין לא אמר ליה

It is related that there was a certain person who said to others: Give to so-and-so my house containing 100 barrels [gulfei] as a gift. It was found that there was a house in his possession that contained 120 barrels. Mar Zutra said: The owner said to him that he was giving him a house containing 100 barrels, and he did not say to him that he was giving him a house containing 120 barrels. Therefore, the recipient receives only the portion of the house that holds 100 barrels, and not the rest of the house.

רב אשי אמר מי לא תנן במה דברים אמורים במוכר אבל בנותן מתנה נותן את כולן אלמא מאן דיהיב מתנה בעין יפה יהיב הכא נמי מאן דיהיב מתנה בעין יפה יהיב

Rav Ashi said: Didn’t we learn in the mishna here: In what case is this statement said? It is said with regard to one who sells a field, but with regard to one who gives it away as a gift, it is assumed that he gives all of it. Apparently, one who gives a gift gives generously. Here too, then, say that one who gives a gift gives generously, even if he is not always precise in his wording. Therefore, it should be assumed that the donor intended to give the recipient the entire house, which contains more than 100 barrels.

המקדיש את השדה הקדיש וכו׳ אמר רב הונא אף על גב דאמור רבנן הקונה שני אילנות בתוך של חבירו הרי זה לא קנה קרקע מכר קרקע ושייר שני אילנות לפניו יש לו קרקע ואפילו לרבי עקיבא דאמר מוכר בעין יפה מוכר הני מילי גבי בור ודות דלא קא מכחשי בארעא אבל אילנות דקא מכחשי בארעא

§ The mishna teaches: One who consecrates a field, has consecrated all of it. Rav Huna said: Even though the Rabbis said: If one buys two trees in the field of another, he does not acquire any of the land but acquires only the trees, and if he sells land to another, and he retains two trees for himself, he also retains the land around those trees, that does not always apply. Rav Huna elaborates: And even according to Rabbi Akiva, who says that one who sells, sells generously and does not retain anything for himself, this does not always apply, as this statement applies only with regard to a pit and a cistern, which do not weaken the land, and therefore the seller feels no need to protect himself from the potential claims of the buyer. But with regard to trees, which do weaken the land, as they draw water and nutrients from the soil,

אם איתא דלא שייר לימא ליה עקור אילנך שקול וזיל

if it is so that the prior owner did not retain some of the land for himself, let the buyer say to him: Uproot your trees, take them, and go, as the trees draw water and nutrients from the soil, causing damage to the buyer’s land. Therefore, the seller must have retained for himself the land needed for these trees.

תנן רבי שמעון אומר המקדיש את השדה לא הקדיש אלא חרוב המורכב וסדן השקמה ותני עלה אמר רבי שמעון מה טעם הואיל ויונקין משדה הקדש

The Gemara raises an objection: We learned in the mishna here that Rabbi Shimon says: One who consecrates a field has not consecrated any of the items that are ordinarily excluded from a sale except for the grafted carob tree and the sycamore trunk. And it is taught with regard to this in a baraita: Rabbi Shimon said: What is the reason that it is specifically the carob tree and the sycamore trunk that are consecrated? Since they draw their nutrients from a consecrated field, the owner must have had in mind to consecrate them as well, as otherwise his trees would be nurtured from consecrated property.

ואי סלקא דעתך שיורי שייר כי קא ינקי מדנפשיה קא ינקי

And if it enters your mind, as Rav Huna claims, that when the seller retains certain trees for himself, he also retains the land around them so that they will be nurtured from soil that belongs to him, what is the reason for Rabbi Shimon’s ruling? When these trees draw their nutrients, they draw their nutrients from the ground that the consecrator had retained for himself that still belongs to him, not from consecrated property.

רבי שמעון דאמר כרבי עקיבא ורב הונא דאמר כרבנן

The Gemara answers: The assumption that Rav Huna’s statement is true according to everyone must be reconsidered. Rather, Rabbi Shimon, who says that one who consecrates his field does not retain for himself the land around the trees, holds in accordance with the opinion of his teacher, Rabbi Akiva. According to Rabbi Akiva, one who sells, sells generously, and there is no presumption that he retained some item or right for himself unless this was stated explicitly. Therefore, Rabbi Shimon rules that one who consecrates his field has also consecrated the carob trees, as otherwise they would draw nutrients from consecrated land. And Rav Huna, who says that when a seller retains trees for himself he also retains the land around them, holds in accordance with the opinion of the Rabbis, who say that one who sells, sells sparingly.

כרבנן פשיטא נפקא מינה דאי נפלי הדר שתיל להו

The Gemara asks: If Rav Huna’s statement is only in accordance with the opinion of the Rabbis, then isn’t his statement obvious? What novel idea is he adding? The Gemara answers: The practical difference is that while one might have thought that the prior owner retains a right to the land only for the sake of trees that were there, this is not the case. Rather, he retains absolute ownership of the land, and therefore, if the trees fall or die he can plant them again.