1) "MELABNOS SHEL PESACHIM"

OPINIONS: The Gemara asks what the Halachah is in the case of "Melabnos Shel Pesachim."

What are "Melabnos Shel Pesachim"?

(a) The RASHBAM (DH Ba'i Rebbi Elazar) explains that the Mishnah, which discusses the sale of a field and what is included in such a sale, mentions that a guard-hut not made from clay is included in the sale of the field. The Gemara digresses and asks if the stakes that are part of the doorway are included in the sale of the doorway of a house.

(b) TOSFOS asks that it is unlikely that the Gemara should make such a digression. He therefore explains that the Gemara's question involves the guard-hut which is sold with the field. Are the stakes within the doorpost sold as well, or are they not included in the sale of the field?

2) THE "MELABEN" OF THE BED

OPINION: The Gemara asks what the Halachah is in the case of the "Melabnos" of the legs of the bed. Are they included in the sale of a bed or not? The Gemara explains that the question applies only to Melabnos that are not attached to the bed in such a manner that they could be carried with the bed. The question applies only to Melabnos that are carried separately from the bed. What is a "Melaben"?

(a) The RASHBAM (DH Melabnos) explains that a Melaben is a piece of wood placed under the leg of a bed in order to prevent the leg from rotting from the moisture on the ground.

(b) The SHITAH MEKUBETZES quotes the RA'AVAD who explains that a Melaben is the rim of a bed, raised slightly from the surface of the bed, in order to prevent the sheets from slipping off the bed. The Ra'avad explains that there are different types of bed rims. Some bed rims are built as part of the bed, and some are separate pieces of wood which are pressed against the bed in order to ensure that the sheets do not fall off the bed. (Y. MONTROSE)

69b----------------------------------------69b

3) TREES INCLUDED IN THE SALE OF LAND

OPINIONS: The Gemara teaches that when a person sells land and says that he is selling a parcel of land and trees, the seller must give the buyer two trees (besides those included in the sale of the land). If he does not own any other trees, the seller must purchase two trees and give them to the buyer, since he said that he would include trees in the sale. In the event that the seller has no other trees and he refuses to purchase two trees for the buyer, is the entire sale invalidated, or does the sale remain valid but the buyer has a claim against the seller (that he owes him two trees)?

(a) The RASHBAM (DH Zavin) says that the trees and the land are two distinct parts of the sale, and one has no bearing on the other. If the seller decides not to provide trees, the sale of the land remains valid. The seller is obligated to supply the buyer with two trees, or to give him back the value of two trees.

The Rashbam writes that the seller is deemed "untrustworthy" if he does not supply the trees. Why does the Rashbam not say that he is simply a thief? The ROSH explains that he is not considered a thief because he did not have the trees in his possession at the time he sold them, and thus the trees are considered a "Davar she'Lo Ba l'Olam," an item not presently in the world, which one cannot sell. According to the letter of the law, the seller is not bound to supply the trees. However, since selling something which one does not have is a deceitful thing to do, the Chachamim decreed that the seller is obligated to supply the buyer with trees. Accordingly, the sale of the trees does not affect the sale of the land.

(b) The RIF explains that the land and trees are considered one unit. If the seller fails to supply the trees, it is considered as though he fails to supply the land, and the sale is invalid.

How can failure to deliver the trees invalidate the sale if they are considered a "Davar she'Lo Ba l'Olam"?

The Rif quotes an opinion which states that an object is considered a "Davar she'Lo Ba l'Olam" only when it is not widely available for purchase. Trees, however, are almost always available for purchase, and thus they are not considered a "Davar she'Lo Ba l'Olam," and a commitment to sell trees is binding even when the seller is not in possession of the trees at the time of the sale. (See HAGAHOS HA'BACH on the Rif.)

The Rif explains that the trees are not merely another item in the sale, but are considered a condition for the sale of the land. It is as if the buyer stated, "I will buy this land from you on condition that you eventually give me two trees" (even if those two trees will be designated only later).

(c) The RASHBA rejects the reasoning of the Rif. The Gemara implies that the sale is of two items, not one item which is conditional on the other. The Rashba quotes the BA'AL HA'ITUR who explains that the reason why the trees are not considered a "Davar she'Lo Ba l'Olam" is that the buyer did not know that the seller did not have the trees when he agreed to the sale. (This is also the explanation of the RAN.) However, after much discussion the Rashba concludes that the correct explanation of the Gemara is that of the Rashbam. (Y. MONTROSE)

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