Yesterday, we learned from a mishnah that when a person buys three trees from another, they acquire a certain amount of land underneath them; however, if they purchase two trees, they acquire the trees, but no land.
Over time, the trees will continue to grow, and the mishnah informs us that, in the case of someone who purchased two trees:
That which grows out of the trunk belongs to the owner of the tree, but that which grows out of the roots belongs to the owner of the ground.
One might argue that the buyer of the tree acquires the entire tree, roots included. But the mishnah informs us that the roots, which are underground, are considered to be a part of the ground and therefore remain in the possession of the seller.
Trees have the ability to grow root sprouts, shoots that emerge from buds on their roots. Should such roots appear, to whom do they belong? In the Gemara, Rabbi Yohanan explains:
Anything that sees the face of the sun (i.e., parts of the tree that are visible and above ground) is considered to be “that which grows out of the trunk.”
And anything that does not see the face of the sun (i.e. parts of the tree that are concealed in the earth) is considered to be “that which grows out of the roots.”
As Rabbi Yohanan explains, shoots that emerge from the ground and see the light of day are considered to be “from the trunk,” and, as such, they belong to the buyer. Only the parts of the tree that remain underground are considered to be “from the roots,” and, assuming that they stay there, they belong to the seller.
If everything that is above ground belongs to the buyer, suggests the Gemara, there is something else for us to worry about:
Let us be concerned that perhaps the land is covered with sediment and the shoots appear to be separate trees; and the owner of the trees will say to the owner of the field: You actually sold me three trees and I therefore have ownership over the ground.
If the land around the trees becomes covered with sediment, a shoot might appear to be an individual tree. If so, the buyer might claim that they actually bought three trees and, as a result, the land underneath belongs to them as well.
Not to worry, says Rabbi Yohanan, while the mishnah gives ownership of shoots to the buyer, they are required to cut them down in order to avoid confusion. Problem solved.
But this seems a mismatch from what the mishnah plainly says: that which grows from the roots (including, presumably, shoots) belongs to the seller. Yet, Rabbi Yohanan suggests that it matters not from which part of the tree a shoot emerges, but rather what space it currently occupies. In doing so, Rabbi Yohanan appears to have uprooted (pun intended) the mishnah, giving what belongs to the seller to the buyer instead. This seems like too good of a talmudic problem to leave unexamined. Yet, in the Talmud and the commentaries, it isn’t explored.
Why not? Perhaps it’s because the Talmud’s conversation renders this question moot in the end. Shoots are problematic because they may come to be regarded as trees in and of themselves. Regardless of who actually owns them, their existence allows the buyer to stir up trouble and so they are cut down.
Read all of Bava Batra 82 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on September 15, 2024. If you are interested in receiving the newsletter, sign up here.
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