Halachos on the Daf - 71

By: Reb Avrahom Klein

(Choshen Mishpat Siman 215)

In the previous few dafim, the Gemora discussed which items are included when selling a house, courtyard, olive press, bathhouse, city and field. The reason why everything is not included in the sale is because when someone is for example selling a house, he’s only selling it because he’s strapped for cash. So although we assume that a seller sells b’ayin yufeh - generously, this doesn’t include items which are not part of the house. We therefore can say that the seller had no intention of selling any items, if not for the fact that he needed the money.

According to the above logic, there would be instances where everything that belongs in that particular place is included in the sale.

1. A person giving a house, field etc. as a gift. Since he wasn’t forced into giving it, then he must have given it wholeheartedly, and he is not withholding anything.
2. Brothers that divided an inheritance. Since each brother took their own field, for example, then obviously they completely divided the inheritance, and everything in each brothers field is exclusively his.
3. If someone made a kinyan chazakah (propriety act) on the property of a deceased convert.
4. One who consecrates a house, field etc., the halachah is that everything is hekdesh. Since he wasn’t forced into consecrating it, then he must have given it wholeheartedly, and he is not withholding anything.

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What's Included?

Which House?

The Gemora tells the story of the person who commanded, on his deathbed, to give someone his house, which holds 100 barrels. The house was found to hold 120 barrels, and the Gemora concludes that the whole house was given, as one who gives a gift does so generously.

The Rashbam says that this is only true if he had no house that holds 100 barrels. If he had another such house, we assume that house was given.

The Ritva (quoted by the Nimukei Yosef 37b) says that this is true because one who gives a gift is not exact, and meant the house which held 120 barrels. However, if the house held more than 120 barrels, that is above the error a person would reasonably make, and we assume that he did not mean to give the whole house.

The Nimukai Yosef disagrees, and says that there is no limit specified in the Gemora. The Nimukei Yosef further explains that we do not purchase a house holding 100 barrels for the recipient, since the giver specified that his house should be given.

The Taz (HM 253:14) says that the rationale for giving the large house is that one who gives a house generally gives the whole house, even if the discrepancy is larger than 1/5. See the Bais Yosef HM 253, who cites a variant text of the Tur that says even if the house holds 150 barrels, the house is given. The Bais Yosef reject this variant.

Take your Trees!

Rav Huna says that one who sells his land, but retains two trees, also retains the land between and around them, since otherwise the buyer can tell him to remove his trees.

The Rashbam explains that the buyer can only demand this once the original trees wither and die. If the seller would then want to plant new trees, the buyer can object.

Tosfos (71b Laima) quotes the R”i, who says that such a rationale would not suffice, since the seller may not intend to plant new trees in this land. Rather, the R”i says that if the seller does not retain the land of the trees, the buyer can demand that the seller remove his trees immediately, since they take nourishment and space from the land. Once the seller retained the land for the immediate needs of the tree, he also retained the land between them and the right to be able to plant new trees after these die.

The Rashbam explains that when one buys two trees, there is no assumption that the buyer plans to plant new trees when these die, since people often buy trees for a temporary period of time. Therefore, one who buys two trees does not automatically get their land.

The R”i explains that even in a case where a buyer bought land adjacent to his trees, he does not necessarily get any more land, since he is at the mercy of the seller.

The Grafted Carob and Cut Sycamore

Rabbi Shimon says that only the grafted carob and cut sycamore are included in a consecrated field, since they take nourishment from the consecrated field.

The Rashbam explains that since they take nourishment from a consecrated field, they themselves become consecrated, similar to the rule that something that grows from consecrated seeds is itself consecrated.

The Rashba and Ran, however, explain that since these trees take nourishment from the consecrated land, we assume the owner included them in the consecration. The difference between these explanations would be a case where the owner chopped down these trees right after consecrating the field. According to the Rashbam, the trees would not be consecrated, since they did not take nourishment from the consecrated field. According to the Rashba and Ran, the trees would still be consecrated, since the estimation of the owner’s intent is the same.

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