Tuesday, 28 February 2017

Bava Batra 37: Planting Trees, Dual Ownership of Land and Trees

Continuing to question through the complexities of two people claiming ownership of the same property, the Gemara tells of chazaka when one owns a field with many types of fruits.  Is chazaka established for the entire field if one consumes only one type of fruit/ in one part of the field?  Or would that only lead to the presumed ownership of the part of the field where those specific fruits were grown?  Does it matter if other trees were not producing fruit?  Or if the fruit trees were scattered throughout the field?

Rav Zavid speaks to chazaka when one person claims ownership of the field and another claims ownership of the fruit trees growing on that field.  Must the owner of the field insist that the other person uproot his trees and leave?  Does the tree-owner claim half of the land, as well as the trees?  Does he also own the land around each tree because that land supports the trees?

We learn that Rabbi Akiva has said that one who sells, sells generously.  Does that halacha apply in this case, or only regarding pits or cisterns, which do not "cause harm" to the land?  Clearly we are reviewing the argument of those who had a very different understanding of what "harm" means.  Today, it is hard to imagine that trees could ever be considered to be damaging to land - and if they were, an environmental assessment would recommend which different trees should be planted to avoid this problem.  In the times of the Talmud, the land was considered to be here for our use.  So if trees caused nutrients to be pulled from the land, nutrients which would otherwise allow for produce to be grown, then trees were causing damage.

The Gemara considers whether people sell generously or sparingly.  If a person sells the trees on his land, is he assumed to sell generously?  This would mean that the trees and the surrounding land were included in the sale.  Or would we assume that he would sell sparingly, keeping as much land as possible in his ownership? 

In Neharde'a, the Sages taught that if one consumes from an overcrowded orchard, he does not have chazaka over the entire orchard. But then how would one buy an alfalfa field, which is always overcrowded?  No, we learn, this teaching applies to trees.  Rav Zeira compares this to the sale of a vineyard that is overcrowded; not spaced properly.  Our notes, by Steinsaltz, tell us that three vines should be placed more than four cubits from each other.  If an extra vine is present, the rabbis pretend that it is not there.   Similarly, Steinsaltz's notes tell us that trees were place far enough apart to ensure that they would receive enough nutrients and that they would not wither.  Three trees together would include land among them so that if one tree died, another could be planted close to it.

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