Talmud - Bava Batra 82b בבא בתרא פ״ב ב׳

he has acquired an area sufficient for a gatherer of figs and his basket in hand to stand close to the tree. Rabbi Elazar objects to this: Now that the halakha is that the buyer has no path and must purchase a path through the field to access his trees; if so, does he have possession of an area for the gatherer and his basket? The Gemara elaborates: He has no path, even though he has no other means of gaining access to the trees, as the ground he acquired along with the trees is considered another land and is not part of the rest of the field. Why, then, would he have possession of an area for a gatherer and his basket?

Rabbi Zeira says: From the statement, i.e., the objection, of our teacher, we learn that it is in the case of three trees that the owner of the trees has no path, as the buyer acquired a separate piece of land along with the trees. But in the case of two trees the buyer has a path, as he says to the owner of the field: My trees are standing on your land, and as I am allowed to use your field to tend to my trees I have the right to walk through your land to reach them.

Rav Naḥman bar Yitzḥak said to Rava: Shall we say that Rabbi Elazar does not accept the opinion of Shmuel, who was his teacher? As Shmuel says: The halakha is in accordance with the opinion of Rabbi Akiva, who says: One who sells, sells generously. According to Rabbi Akiva, one sells in a manner that is advantageous for the buyer, and is presumed to have included in the sale even items that were not explicitly specified. In this case, as he has sold a tree that remains on his property, the seller grants the buyer the right to access his tree.

Rava said to him: Even if Rabbi Elazar himself agrees with Rabbi Akiva, the mishna cannot be explained in accordance with the opinion of Rabbi Akiva. Rather, the mishna must be in accordance with the opinion of the Rabbis, who hold that one who sells does so sparingly, and the difficulty that Rabbi Elazar raised against Rabbi Yoḥanan is predicated on the fact that the mishna is in accordance with the opinion of the Rabbis.

From where does Rava derive that the mishna is not in accordance with the opinion of Rabbi Akiva? From the fact that the mishna teaches: If the three trees grew, the owner of the land may cut down the branches that extend into his field. And if it enters your mind that the mishna is in accordance with the opinion of Rabbi Akiva, why may he cut them down? Doesn’t Rabbi Akiva say that one who sells, sells generously?

Rav Naḥman bar Yitzḥak said to him: This does not prove that the mishna is not in accordance with the opinion of Rabbi Akiva. You can say that Rabbi Akiva stated his ruling in the case of a pit and a cistern that are situated in a field belonging to another, which one sells in a generous manner, as they do not weaken the land. But did you hear him say that the seller is generous toward the buyer with regard to a tree, which can weaken the land?

Doesn’t Rabbi Akiva concede in the case of a tree that leans out into the field of another, in which the owner of the other field cuts down the branches until the full height of an ox-goad, the handle that protrudes over a plow? Since the extending branches impede his efforts to plow his field, it is permitted for him to cut them down. This indicates that even according to Rabbi Akiva one does not grant privileges that are detrimental to his own interests. If so, the mishna can be explained even in accordance with the opinion of Rabbi Akiva, which indicates that Rabbi Elazar does not accept his ruling.

The Gemara points out: It is taught in a baraita in accordance with the statement of Rabbi Ḥiyya bar Abba: If one buys three trees in a field belonging to another, this buyer has acquired the ground that is found underneath the trees, and the area between them, and outside of the trees and their branches an area sufficient for a gatherer of figs and his basket.

Abaye said to Rav Yosef: Those areas around the trees that are designated for a gatherer of figs and his basket are used for this purpose only at specific times. Who sows that land during the rest of the year, the owner of the trees or the owner of the field? Rav Yosef said to him: You learned the answer in a mishna (99b): If one owns a garden that is surrounded by the garden of another, the owner of the inner garden has a right to a path through the outer garden. Even so, the owner of the outer garden may sow the path.

Abaye said to him: Are the cases comparable? There, in the case of the outer and inner gardens, there is no loss suffered by the buyer when the owner of the outer garden sows the path, as he can still pass through it. But here, there is a loss for the buyer, as the one who bought the trees says to the owner of the field: The fruits that fall from the trees will become soiled by the plants.

This case is similar only to the last clause of that mishna, which states: If the owner of the inner garden is given a side path, so that he suffers a loss of some kind because he cannot take the shortest path to reach his garden, both this owner of the inner garden and that owner of the outer garden are not permitted to sow the path. Similarly, here too, neither the owner of the trees nor the owner of the field are permitted to sow the place designated for the gatherer of figs and his basket.

The Gemara comments: It is taught in a baraita in accordance with the opinion of Abaye: This buyer has acquired the ground that is found underneath the trees, and the area between them, and outside of the trees and their branches an area sufficient for a gatherer of figs and his basket. And both this owner of the field and that owner of the trees are not permitted to sow it.

The Gemara inquires: And how much space must there be between the three trees for them to be considered one unit, which means that the land is acquired by the owner of the trees? Rav Yosef says that Rav Yehuda says that Shmuel says: The distance between the trees must be from four cubits to eight cubits. Rava says that Rav Naḥman says that Shmuel says: It must be from eight cubits to sixteen cubits. Abaye said to Rav Yosef: Do not disagree with Rav Naḥman, as we learned in a mishna in accordance with his opinion.

As we learned in a mishna (Kilayim 4:9): One who plants his vineyard sixteen cubits by sixteen cubits, i.e., he leaves sixteen cubits between each row of vines, is permitted to bring other species of seeds to the empty spaces between the rows and sow them there. This is not considered a violation of the biblical prohibition with regard to sowing diverse crops in a vineyard, which is one of the prohibitions of diverse kinds.

Rabbi Yehuda said: There was an incident in the city of Tzalmon, where one individual planted his vineyard sixteen by sixteen cubits. And he would turn the branches of two rows that were facing each other to one side, so that there was a space of sixteen cubits between the two rows, and sow the clearing. The following year he would turn the branches to the place that was sown the year before, and would sow the land that had been left uncultivated the previous year, as it had been filled with the branches from the vines. And the incident came before the Sages and they permitted it. This demonstrates that sixteen cubits between plants is required for them to be considered separate units.

Rav Yosef said to him: I do not know about this, but there was a similar incident

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

BavaBatra 82b examines whether a tree buyer gains walking access and standing space through the seller's field, debating three versus two trees under Rabbi Akiva and the Rabbis.