Take Ten for Talmud
1635BabaMetzia119- If he can reach the root, but not the produce
Shalom Alaykum, Abiyy'a 5th, 6th, 13. We welcome you to take 10-5th Tamuad. Baba Mitziah, Kufya, Tesba, Mitziah 119, A. The final page of the Miserta. We'll start on the facing page to review the Mishnah upon which we are commenting and that is page 236. We had in the Mishnah towards the bottom of the page that there was staged. That there were Che Ginos Zu al-Gavzu. There were two vegetable gardens next to each other, one higher than the other. And there is that slope or very steep cliff of sorts in between the two, the Yarek Bintayim and these vegetables growing out in between the upper field and the lower field. Who is entitled to that produce? Now the Mishnah brought at first a makhlokist between Rabmayer and Rabihuda with fascinating arguments. Rabmayer said it belongs to the top person and one of the arguments is he could theoretically take away his own dirt and lower his land and make this entire growth area disappear and clearly it's growing from his location, from his dirt. Rabihuda says, "Shaltakton, it goes to the lower one." He said a fascinating reason that the lower one has the right to fill in his land and raise the height to equal the neighbor who's holding it. The neighbor who's higher and that also would eradicate this produce. And the Mishnah concluded, Omarab Shimon. Rab Shimon said that as Rashi understands it, we pass in like Rabmayer that it's emanating from the land of the upper one and therefore he's entitled to it. And therefore Kolschohayallian Lach Yaqah lifeshot es yadovallit alare el ushalo. Whatever the upper one is able to reach, that's his and everything else goes to the lower one and as Rashi explains, because makhlil luhu, the upper one, even though he's entitled to it, he makes it hefge because it's Gennai hulu, it would be degrading for him to go to the lower one and ask for access. In order to obtain this produce, we mentioned the Gomorrah on our dah, which can be found about eight lines from the end of the Messerta. Amrit de vayrabyanay, they said in the Bismarish of Rabyanay, over Vajlohya anus. He's not allowed to stretch in an unusual way in order to reach the produce. Normal, the upper person reaching normally, scooping up whatever he can, that's considered his and the rest, he relinquishes rights on. So certainly, even if he invents a special pole, pruner, cutter, gatherer, that's going to get him the produce, that's not going to be his, because the standard that was set is already in place, that his makhlil and whatever he can't reach easily. The Gomorrah on our dah presents a fascinating question. Bhoy ravanan ravanan asked, vetema rabi yermiyah, some attribute this question to rabi yermiyah. Magyal alinofo ve en magyal liikaro. Let's say he's able to reach the growth, but he's not able to reach the root, or magyal liikaro, he can reach the root, ve en magyal li nofo, but the growth is really out of his reach, and this could be a very common situation. You could have something coming out of this in-between land, and it's growing up, it's a strong stalk, it grows up, or you could have something that's very viney, and it's growing down. And we entertain, as the text of our Gomorrah presents it, both possibilities. One, he reaches the growth, which is the harvestable thing that we're focused on, if he can't reach the root, so where it emanates from would theoretically be the owner. But the growth in impressions, that's what we're after, and that's accessible to him. Or the flip side, he's able to reach the root, but it's very viney, and we know how vines are, they could grow many, many feet in any direction, so he has access to the root part. But the place of the produce is ongoing, he wants to just pull it all to himself from the root, is he allowed to. Mai, what's the halacha in these cases? Taeku, the question remains in halacha, however we deal with it, but it's a valid question, and the Gomorrah does not want to resolve it. If you'll take a look at the Gras, which in the standard Vilna print is the outer commentary here, the third section here on the left side, The Gras writes, Nicht of Bitzido, editor, note, Hiramban Beharosh, low gourdislaw. The case that he reaches the root and doesn't reach the produce, there already shown him early commentators that do not include that in the question at hand. The Kihai Gavnavada Nikra Magia, because if you can reach the root, then that's for sure considered reaching, and you'd be allowed to harvest it. The only case that we were talking about is the case where he reaches the produce, but he doesn't reach the root. So the root is emanating from a place that's not his. So is this the other person's produce? It just happens to end up in my possession, and I'm not allowed to harvest it, because it's his. Or it's all about the produce, and we said that really it's emanating from his land, the upper person. And therefore, he should be able to harvest it even though he can't reach the roots. So we have in our Gamora two cases the way our text reads, but the Gras is saying that one of them is not accepted by some of the very great Rishonim. Let's go back to the text of our Gamora, counting up six lines. Magia Lanofa a Magia Le Ikaro, you reach the produce, but you don't reach the root. So that question stands, but Magia Le Ikaro, if you can reach the root, the a Magia Lanofa, but you can't reach the produce, but by harvesting from the root, you could get to the produce. So the Gras says these Rishonim would say that's for sure yours, because you're able to reach the root, and that defines the product. You'll take a look at Rashi though. Rashi is about a third of the way up in the Rashi's. Magia Le Ikaro Vaino Magia Le Nofo, Rashi indeed is Gores, he includes this case as part of the questions, that he reaches the root and doesn't reach the produce. Kigonshan Nofo Lamata, that it's very Vaini, it's going, the produce is going downwards, but he's able to reach the root. And Rashi includes it in the question of the Gamara, and therefore would leave it as a Taeku would consider it a valid question, whereas the Rishonim that the Gras is quoting, say if you can reach the root, it's yours. It's emanating totally from your area. So the commentaries would like to understand what is it that was still bothering Rashi, that made this a valid question, so that it remains a question, even though he can reach the root, because he can't reach the produce on its own, he can't reach the produce. So, the Pope Ulecharifte quotes the Bezio safe, that once the produce is out of his reach, the person who lives in the lower part could potentially, when he sees the produce is gone, claim that this person must have entered my garden without my permission. And because the upper one realizes that risk, that the lower one could have that impression, he's worried, misbeige, he's embarrassed, Peniel is all of, maybe they'll spread rumours about him. And therefore, simply because the impression is that the produce is in the other person's possession, and if he pulls it from the root, the vacancy, the void is going to be noticed so clearly in the other person's possession, out of his reach, out of the upper one's reach. Therefore, he's reluctant to harvest such a thing, and the Gamora considers it, according to Rashi, a Taeku, a question that stands, do we consider such a thing included in his, or is that something also, that the standard is that he relinquishes rights to it, and the lower one is able to harvest it as his own. One observation beyond the scope of our discussion today, but in Simon Kuf Samarzayin, Seif Beiz, Der Amor, introduces a case that a tree is all made vis-sada, shal echadmiham, a tree that's in one person's possession, clearly by its root, by its trunk, the nauta lissada achir, and its fruit is in the next person's area, hokken acha haikr valkol shalot, we follow the base of the item of the tree, and that's the person who's considered the owner. So of course, we can consider what the difference is between these cases, but going back to our case, in the case of vegetables, that's growing from an area, in between the upper and the lower, according to Rashi, really we follow Reb Meir, and it belongs to the upper, it's his earth, but Reb Shiman says, there are restrictions on that, only what he's willing to harvest, because it's within his reach easily, and the way Rashi understands it, based on the Beiziosif, the Popolecharifte, what he can harvest without getting a bad name, that's what is considered his, more than that he's going to leave to the lower one to harvest. Yesha kohach, thank you for joining, hadu no lach meserchas baba mitziyah, we daven for the opportunity to learn the meserchta more thoroughly in the future.