1) ONE WHO SELLS TWO TREES, AND ONE WHO RETAINS TWO TREES FOR HIMSELF

QUESTION: Rav Huna states that "even though" the Rabanan rule that one who purchases two trees does not acquire the property on which the trees stand (unless he specifies otherwise), one who sells his property but keeps two trees for himself retains the right to the property on which the trees stand. The Rishonim ask that the words "even though" in Rav Huna's statement seem inappropriate. The reason why a person does not receive the land when he buys two trees is "ha'Mocher b'Ayin Ra'ah Mocher" -- "a seller sells with a bad eye (stingily)," and thus the seller does not include the land in the sale of the trees. For this reason, when he sells his property and keeps two trees, it is logical that he keeps the land under the trees for himself, since he sells stingily and does not give anything that he does not need to give. Why does Rav Huna say "even though" a seller does not sell the land when he sells two trees, when he sells everything besides two trees he keeps the land? The second Halachah is because of the first Halachah and not despite the first Halachah!

ANSWERS:

(a) The RASHBA quotes some who answer that the Halachah that land is not sold with two trees is not based on the concept of "ha'Mocher b'Ayin Ra'ah Mocher." Rather, it is based on whether or not the land is considered a "Sedeh Ilan" -- a "tree field." If it has the title of a "tree field," the land is sold with the trees. The Rabanan determined that a "tree field" is comprised of at least three trees. Accordingly, one who sells two trees does not sell the land since it is not considered a "tree field." However, this should mean that one who leaves himself two trees does not leave himself the land on which they stand, since he has not left himself enough trees to have the land considered part of the trees. This is why Rav Huna says that despite the fact that a purchaser of two trees does not receive the land on which the trees stand, one who leaves himself two trees does leave himself that land despite the fact that it is not a "tree field." This is because he does not want to have a conflict with the owner of the land who might not want the seller's trees on his field. The Rashba says that this answer is correct. This is also the opinion of the RA'AVAD.

(b) The RAN answers that the words "even though" refer to the second part of Rav Huna's statement, in which he says that this ruling is true even according to Rebbi Akiva. Rav Huna is saying that one who sells two trees sells them without the land beneath them, and, accordingly, when one keeps two trees for himself when he sells his property, he also keeps the land on which the trees stand. This seems to be based on the Rabanan's statement that a seller sells stingily. Rav Huna says that even though this second Halachah seems to be only in accordance with the view of the Rabanan, Rebbi Akiva actually agrees with it as well. (Y. MONTROSE)

71b----------------------------------------71b

2) "TAKE YOUR TREES AND LEAVE"

OPINIONS: Rav Huna states that even though the Rabanan rule that one who purchases two trees does not acquire the property on which the trees stand (unless he specifies otherwise), one who sells his property but keeps two trees for himself retains the right to the property on which the trees stand. Rav Huna continues and says that this ruling is true even according to Rebbi Akiva. Even though Rebbi Akiva maintains that "Mocher b'Ayin Yafah Mocher" -- "a seller sells with a good eye (generously)," and thus it is reasonable to assume that the seller sold all of the land (even the land under his trees), in this case it must be that he left land for himself. Since trees weaken the land on which they stand, if he does not leave himself the land the buyer may tell him, "Uproot your trees, take them, and leave."

What is the nature of this claim that the buyer could make? Does it mean that the buyer may tell the seller to take his trees and leave immediately, or only after a certain amount of time has passed?

(a) The RASHBAM (71a, DH Hani Mili) writes that the buyer may tell the seller to take his trees only after they die.

TOSFOS (DH Leima) asks that this logic cannot be the reason why Rebbi Akiva agrees that the seller must have left land for himself. Perhaps the seller does not mind that he will have to leave after the trees die, because that could be a very long time from now.

(b) Tosfos quotes the RI who says that if the seller does not leave himself land, the buyer may demand that the seller immediately remove his trees and leave.

This opinion is difficult to understand. According to the Rabanan, when one buys two trees he does not acquire the land beneath them, and yet he may keep his trees there until they die. Why is the law different for one who sells his property and leaves two trees for himself? The RASHBA explains that when a person buys two trees in his friend's field, it is assumed that he also purchased the rights for his trees to grow on the property. Since he purchased trees and not wood, he obviously wants to keep the trees attached to the ground. However, when one sells all of his property except for two trees, the buyer might think that since the seller has received his money from the sale of the field, he is keeping the two trees only for their wood, and thus he is entitled to demand that the seller leave the property immediately. The law therefore teaches that since the seller is not interested in leaving the property, it is assumed that he left for himself not only the right to let the trees grow, but also the right to the land around the trees. According to the Ri, the seller may even plant other trees in the place of these trees if they die. (Y. MONTROSE)

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