Today’s daf introduces a conundrum: How can one person take possession of a piece of land while another takes possession of trees on it? Say, for example, that I own a piece of land and sell the trees to one person and the land to another. Or, perhaps I sell my land but keep my trees. Does the owner of the trees automatically own the land surrounding those trees, even though they are located within someone else’s land, because this is necessary to care for them and harvest their fruit? Or is the owner of the trees at the mercy of the land owner to access them? The Gemara presents two opinions:
Rav Zevid says: This one acquired the trees and that one acquired the land.
Rav Pappa objects to this: If this is so, then the owner of the trees has no share in the land at all. Let the owner of the land say to the owner of the trees: Uproot your trees, take them, and go. Rather, Rav Pappa said: This one acquired the trees and half of the land, and that one acquired half of the land.
Rav Zevid takes a literal, if impractical approach. Say Reuven owns the trees and Rivka owns the land: If no special arrangements are made at this initial stage for access, Reuven may be unable to benefit in any way from his trees. Rav Pappa points out that if we follow Rav Zevid’s logic, Rivka would be justified in telling Reuben he must dig up his trees and re-plant them elsewhere — something Rav Pappa feels is unfair.
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Who is right? The Gemara turns to a similar debate between Rabbi Akiva and the rabbis about what happens when someone owns a cistern that is on someone else’s land. In that context, Rabbi Akiva states a principle which will repeat several times in this tractate:
One who sells, sells with a good eye.
Rabbi Akiva’s point is not to praise the occasional generous seller, but to establish a legal presumption: If a seller doesn’t specify all the details of a sale, we assume the maximum was sold. For example, if a person sells a field but maintains ownership over a cistern, according to Rabbi Akiva the seller generously intends to sell the entirety of the field, not leaving himself a path to reach the cistern. The previous owner will have to walk on the new owner’s land or buy back a pathway.
The rabbis disagree, saying if the seller maintains possession over the cistern, she clearly intended to maintain ownership over the path to access it, so as to continue benefiting from the water inside. According to the rabbis, the default seller always sells “with a bad eye,” or sparingly, defensive of their own needs.
At first glance, Rav Zevid’s position seems to align with Rabbi Akiva: All of the land belongs to the new owner without regard for access to the trees or cisterns owned by the other party. Rav Pappa, in turn, appears aligned with the rabbis: The initial sale, unless it states otherwise, is presumed to take into account the need for access.
But the Gemara muddies these waters, suggesting that the cases are not truly parallel and Rabbi Akiva would not hold onto his principle that a seller is generous in the case of trees. Why? Unlike cisterns, trees have roots that grow beyond their immediate boundaries. If I sell you the field, while maintaining possession over the trees, I couldn’t possibly intend to sell you the land immediately surrounding the tree as well because your plowing and planting would hurt my trees and my roots would ruin your produce. So, the Gemara concludes, even Rabbi Akiva would agree that a seller does not mean to automatically include all the land under the trees in such a sale, but retains the necessary land to protect the trees.
As the Gemara continues, it becomes clear that the debate between Rabbi Akiva and the rabbis is nearly always contextual, depending to a large degree on the specifics of each case. This makes it even harder to generalize about what sellers intend. As with many of the discussions in this chapter, the underlying problem is clear: Challenges arise when a sale occurs without an explicit document detailing all the intentions of the seller. Buyers ought to request these documents be written and are advised to hold onto them for the long term to avoid problems down the line.
Read all of Bava Batra 37 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on August 1, 2024. If you are interested in receiving the newsletter, sign up here.
