Mechirah - Chapter 24

Which are positioned as a segol, as stated in Halachah 3.

The Tur and the Ramah (Choshen Mishpat 216:6) state that if the trees are weak enough to be bent over by a yoke, the purchaser does not acquire the land that nurtures them.

This refers to a practice in which the branches of a tree are pulled down and implanted in the ground again without being severed from the original tree. A new tree sprouts forth from the implanted branch. Bava Batra 83a questions whether or not three branches planted in this manner are considered to be trees.
There is a difference of opinion among the Rishonim with regard to the conclusion to be derived from this passage. The Ri Migash, the Rambam’s teacher, rules that the entire planting is considered to be one tree. Rashbam and the Rambam follow the opinion that they are considered to be separate trees.
Other versions of the Mishneh Torah read “three branches of trees” - i.e., the seller sold the purchaser three branches, one from each of three different trees. The Maggid Mishneh mentions this interpretation, but he - and the Shulchan Aruch (Choshen Mishpat 216:6) - favor the first interpretation.

Even if this was not explicitly stated in the deed of sale. Sefer Me’irat Einayim 216:16 explains that three trees are referred to as an orchard, and the land therefore belongs to the purchaser.

And may plant other trees or crops there.

The Tur and the Beit Yosef (Choshen Mishpat 216) state that this refers only to small insignificant trees. Such clarification, however, is not made in the Shulchan Aruch (ibid.).

Since the land belongs to the purchaser, he also acquires the trees growing on it.

The Rabbis explain that this refers to a measure of two cubits.

The space beneath the trees and between the trees, by contrast, may be sown by the purchaser [Maggid Mishneh; Ramah (Choshen Mishpat 216:6)].

The owner of the field [the seller] may not sow this land, because by plowing the land he may spoil any fruit that falls from the purchaser’s trees. The purchaser may not sow this land, because it does not belong to him. He is granted the right merely to stand there when harvesting his fruit (Maggid Mishneh).

That the purchaser acquires land.

I.e., in the form of a segol, as seen in the following diagram.
The rationale for this ruling is that when the trees are positioned in such a manner, it is not feasible to plow between them. Therefore, we assume that when selling the trees, the purchaser also sold him the land (Maggid Mishneh).
Three trees planted in the shape of a tripod.

If there are less than four cubits between the trees, they do not have sufficient land for nurture, and it as if they have already been cut down (Sefer Me’irat Einayim 216:24).

Once the trees are more than sixteen cubits apart, the land between them is too large to be considered secondary to the trees, and is instead considered to be an independent entity.

The Tur (Choshen Mishpat 216) interprets this to mean the portion of the tree trunk that emerges from the ground.

In which instance, it would be possible to plow the land around them. If this is the case, since the land would be useful for him, we assume that the seller would prefer to retain the land for himself, rather than grant it to the purchaser.

When the trees are this close together, they cannot receive adequate nurture, and we assume that they are being purchased to be cut down for lumber.

In this instance as well, one could plow between them. Hence, they are not associated with each other.

In this instance, no one sale of a tree is inclusive enough to grant the purchaser the land between the trees. Nor do we say that the fact that he has made several purchases is sufficient to grant him land (Maggid Mishneh).

This and the following two situations are questions that the Talmud (Bava Batra 83a) left unresolved. Thus, there is a doubt with regard to the ruling, and we follow the principle that whenever there is an unresolved doubt, the person in possession of the property - in this instance, the seller - is allowed to retain possession (Rabbenu Yitzchak Alfasi).
The doubt in this instance is that we are unsure whether or not a tree on the border of the property is associated with the other two trees.

The doubt in this instance is that we are unsure whether a tree in property that originally belonged to one person can be associated with the two other trees that belonged to another person.

Since a significant entity is interposed between these trees, we are unsure whether or not they can be associated with each other.

I.e., since he does not acquire the land itself, he does not acquire these rights.

The Ramah (Choshen Mishpat 216:7) emphasizes that this applies with regard to a tree that will not grow back. If the tree will grow back, it remains the property of the purchaser.

The Kessef Mishneh states that this refers to a branch that extends beyond the place in which a person picking fruit can stand together with his basket. For the land until that point belongs to the purchaser.
Sefer Me’irat Einayim 216:26 quotes the Tur, whose opinion differs from that of the Kessef Mishneh. He maintains that the branches must be cut off even if they grow in the area belonging to the purchaser. His rationale is that if these branches are allowed to grow, the owner of the trees will claim that his property extends beyond the range of these branches.

The Maggid Mishneh and the Ramah (Choshen Mishpat 216:8) quote the Ramban, who states that if there is a difference of opinion between the seller and the purchaser whether the branches have grown outward and must be cut down, the burden of proof is on the purchaser.

This final clause is included to explain why the owner of the trees receives those twigs that sprout from the roots. Note the contrast to Halachah 7.

The Tur and the Ramah (Choshen Mishpat 216:9) state that the purchaser is granted the right to stand under and near his tree to harvest his produce. Similarly, he has the right to walk through the seller’s field to approach his trees. This area may not be sown by the seller.

I.e., he may not plant another tree in place of the one that was cut down.

Even when the twigs and branches belong to the owner of the tree, he must cut them off, for the reason stated by the Rambam.

The Tur and the Ramah (loc. cit.) state that if the branches grow outward, there is no obligation to trim them.

Even though it is possible to prove that this tree sprouted from an implanted branch, it is possible that it was sold that way at the outset. (See the notes on Halachah 1.) Thus, proving that the tree sprouted from a branch would not disprove the purchaser’s claim.

For everything that the trees produce belongs to him.

The branches are growing in the ground, and since the ground belongs to the owner of the field, they belong to him.

Sefer Me’irat Einayim 216:36 explains that the Rambam’s rationale is as follows: When a person retains ownership over a portion of property that he is selling, he retains a generous portion for himself. If he were selling the trees to another person, he would be giving the other person the land necessary to care for them. Therefore, for himself, he retains a greater portion - half the total land.

The Ra’avad objects to the Rambarn’s ruling, claiming that it does not have a source in the Talmud. The Maggid Mishneh explains the Rambam’s position, stating that it depends on a different interpretation of Bava Batra 37a.
The Maggid Mishneh notes that the passage in Bava Batra does speak of the purchaser’s receiving “half of the land,” but considers it an exaggeration and maintains that the seller retains only the land required to care for the trees and harvest them.
The Shulchan Aruch (Choshen Mishpat 216:11) quotes the Rambam’s ruling, while the Tur and the Ramah follow the Maggid Mishneh’s position and grant the seller only the smaller amount of land.

I.e., the land beneath them, between them and beyond them in which a person picking fruit can stand together with his basket, as stated in Halachah 2. Here also, the person retains a little more for himself than he would grant to another person. Since another person would not receive any land at all, the person himself retains enough land to care for his trees.

See Halachah 2.

Sefer Me’irat Einayim 216:38 explains that the Rambam’s rationale is that since the seller sold the trees at the same time as he sold the land, and he sold enough trees that the purchaser of the trees receives a share in the land, the purchaser of the trees can claim that the seller sold him a portion of land equal to that which he sold the purchaser of the land.

The Maggid Mishneh mentions that there are some who interpret “half the land” as an exaggeration, and explain that the intent is the amount of land necessary to care for the trees. The Tur and the Ramah (Choshen Mishpat 216:13) differ with this ruling and maintain that the purchaser of the trees does not acquire any of the land at all. He is, however, granted the right to plant other trees in the place of the original trees if they die.

Rashi (Bava Batra 7a) and the Shulchan Aruch (Choshen Mishpat 173:4) explain that this extra land is necessary for the plowing of the vineyard.

The Maggid Mishneh explains that these laws apply even when the tree under discussion is not the highest quality tree in the orchard.

For the seller specified that he was retaining ownership of only that one tree.

Rabbenu Asher describes an inferior tree as one that does not produce a kav of produce in a year.
The Maggid Mishneh explains that this law applies even if the tree specified is not the lowest quality tree in the orchard.

Since the tree he specified was not at all valuable, we assume that he meant that tree and all the others as well.
The Rashbam differs and maintains that all the trees that are of lower quality than the tree specified are sold together with the field. The Rambam’s opinion is cited by the Shulchan Aruch (Choshen Mishpat 216:3), while the Tur and the Ramah cite that of the Rashbam.

Both date palms and vines are not always referred to as “trees.” Hence, there is room to say that they should not be retained by the seller. Nevertheless, since he stated that he is retaining ownership over the trees, and there are no other trees in the field, we assume that he desired to retain ownership over the date palms or the vines.

The rationale is that since we assume that he is selling the field in a generous manner and that neither vines nor date palms are always referred to as trees, we assume that he retains his ownership over only one of them. Since vines are more similar to other trees than date palms, we assume that he desires to retain his ownership over them (Maggid Mishneh).

For the vines are not necessarily considered “trees.”

And therefore, the purchaser is given anything that would not definitely be described as a tree.

Since they are small, they are not considered to be significant and distinct. Therefore, they are considered part of the field.

I.e., saplings that are still small and supple.

The expression the seller used does not imply that the date palms must be located on the land. It could easily be interpreted as meaning a field in one place and date palms in another place.

The use of the plural implies that there must be at least - but not necessarily only - two trees on the land.

The Ra’avad differs and maintains that if it is possible for the seller to purchase two date palms and give them to the purchaser, he is obligated to do so. For although the field did not have the date palms at the time of the sale, since they were easily available in the market, it is not considered as if they had not come into existence at the time of the sale. (See Chapter 22.)
The Maggid Mishneh substantiates the Ra’avad’s view. In his Kessef Mishneh, Rav Yosef Karo explains that the Rambam’s intent is that the seller may purchase the trees and give them to the purchaser if he desires to, but he is not obligated to do so. If he does not give the purchaser the trees, the sale is nullified, but if he does add the trees, the purchaser is obligated to go ahead with the purchase:
Rav Karo explains that the ruling is somewhat self-contradictory. If we say that the sale can be nullified, that implies that the date palms are considered to be entities that have not yet come into existence. And if they have not come into existence at the time of the sale, the purchaser should not be compelled to uphold his part of the transaction.
In resolution, Rav Karo explains that since the trees were not on the land at the time of the transaction, the trees should be considered articles that have not come into existence, and the sale should be nullified. And so, if the seller does not give the purchaser the trees, that ruling should stand, for the stipulations of the original contract were not met.
A certain measure of leniency is, however, granted to the seller. Since it is possible for him to purchase trees and give them to the purchaser, if he does so the sale is allowed to stand. The rationale is that he can tell the purchaser: “I am giving you exactly what you asked for.”
(See the gloss of Rabbi Akiva Eiger, who explains that this depends on the difference between an entity that has not yet come into existence and an entity that the seller does not possess. When an entity does not exist, both the buyer and the seller are aware of this fact, and therefore, the sale is nullified. When an article is not in the possession of the seller, only he knows of this, and hence he has the prerogative of correcting the situation.)
In his Shulchan Aruch (Choshen Mishpat 216:5), Rav Karo cites the Rambam’s ruling. The Rashbam, the Tur and the Ramah rule that if the seller has date palms on another piece of land, he is obligated to give them to the purchaser. This perspective, however, considers the sale of the land and the sale of the date palms as two separate transactions. Therefore, if the seller does not own any date palms, he is not obligated to purchase them. Nevertheless, the sale of the field is binding, and it becomes the property of the purchaser - but when paying the seller, the purchaser should subtract the price of two date palms from the price of the field. (See Seler Me’irat Einayim 216:14.)

Needless to say, if it does have date palms, they become the property of the purchaser.

Seler Me’irat Einayim notes that Bava Batra 69b mentions this law with regard to selling “land.” The Rambam uses the word “orchard” to teach that even though the seller speaks of selling an orchard - which implies that he is selling the trees - he should still specify that the sale encompasses all of the field’s contents.

These can be used to make wicker baskets and the like.

I.e., since they are attached to the land, they are automatically acquired with the land.

These expressions clarify the purchaser’s rights beyond the shadow of a doubt.

He must make this statement if he desires to transfer ownership of distinct entities that are included in the physical building he is transferring, but are not integral parts of the dwelling.

Unlike the previous law, in this instance - as the Rambam continues to explain - the preciseness of the wording has an effect on the extent of the purchaser’s rights to the property.

I.e., that he may build on the roof.

I.e., that he may hollow out cisterns or storage rooms below the dwelling.
The Maggid Mishneh states that if the seller does not make such statements, the purchaser is not permitted to build above or below the house. Instead, the seller retains these rights for himself.

Our translation reflects the standard texts of the Mishneh Torah, which read הַבִּנְיָנֹות. The Shulchan Aruch (Choshen Mishpat 214:3) in its citation of this law states הַבִּנְיָנִים, “the buildings.”

The intent of these Hebrew terms is more specifically explained in Halachah 2 of the following chapter.

The Beit Yosef and the Ramah (Choshen Mishpat 214:3) add a further law, which applies when the deed is worded in this manner. If the building has a roof that is four cubits wide and is surrounded by a guardrail ten cubits high, the roof is considered to be a distinct entity and is not transferred to the purchaser.

The Rashbam and others interpret this to refer to a roof enclosed by a guardrail at least ten cubits high.

Even though this infringes on the purchaser’s rights to the courtyard. We assume that the seller wished to retain this privilege.

The Ra’avad questions the Rambam’s ruling and asks why, if the second storey belongs to the seller, may he not build a third storey on it whenever he wants, even though it was not there originally.

See Hilchot Eivel 12:4, which explains that the funeral procession halts seven times while dirges are said

In Talmudic times, it was customary for several graves of a single family to be located together in one large crypt. It would be embarrassing for the members of a family to have a person from their family buried elsewhere and a stranger buried together with them (Rashi, Ketubot 84a).

They need not, however, pay for the other privileges - for after the funeral is concluded, this property returns to the purchaser (Sefer Me’irat Einayim 217:15).