QUESTION: The Tana'im in the Mishnah argue about the law in a case of vegetables that grow on a vertical strip of ground between two gardens, one of which is above the other. Rebbi Shimon says that the owner of the upper garden has the right to the vegetables that grow on the precipice as far as his arm can reach, and the rest belong to the owner of the lower garden.

The Gemara asks whether the owner of the upper garden is entitled to the vegetables when he can reach the stalks growing out of the ground but he cannot reach the part of the embankment in which the vegetables have taken root. (That is, the stalks of the vegetables grow upwards and thus are closer to the upper garden than the roots are.) Similarly, the Gemara whether the owner of the upper garden is entitled to the vegetables when he can reach only the roots but he cannot reach the stalks. (That would occur when the stalks of the vegetables grow downwards and thus are farther away from the upper garden than the roots are.)

The RAMBAN and the ROSH (10:9) ask why the Gemara is unsure about this Halachah. RASHI (118b, DH veha'She'ar) explains that Rebbi Shimon essentially agrees with Rebbi Meir, that the vegetables growing on the embankment belong to the owner of the upper garden. That is why he may take the vegetables which are within his reach. However, he may not take the vegetables that are beyond his reach because it is assumed that he was Mafkir them, since it is disgraceful for him to climb into the garden of his neighbor to pick his vegetables. If, however, he can manage to pull out the vegetables by pulling at the stalks, he would not be Mafkir them, since he can pick them without entering his neighbor's property. If, on the other hand, he cannot pull out the vegetables by pulling at the stalks, and he must enter the lower garden to pick them, then he would be Mafkir them! What, then, is the Gemara's question?

(a) The BEIS YOSEF (CM 167) explains that the Gemara has a question because even if he can pull out the vegetables by grasping the stalks, he may be embarrassed to do so since the lower neighbor knows that he cannot reach the roots, and when he sees that the vegetables were picked he might think that the upper neighbor entered his garden without permission. Similarly, if the upper neighbor can reach the roots but not the stalks, he may be embarrassed to pick the vegetables because the lower neighbor might claim that they were growing within his domain since he knew that the upper neighbor could not reach the stalks. This is why the Gemara entertains the possibility that the upper neighbor may be Mafkir these vegetables.

(b) The RAMBAN (118b) rejects Rashi's explanation because of this question. He explains that Rebbi Shimon essentially agrees with Rebbi Yehudah, that all of the vegetables belong to the owner of the lower garden. However, the owner of the lower garden is assumed to be Mafkir the vegetables that grow higher up on the embankment (within his neighbor's reach) in order to remain on good terms with his neighbor. The lower neighbor fears that if he is not Mafkir them, then the upper neighbor will remove his dirt and cause the vegetables to stop growing. According to the Ramban, the owner of the lower garden is Mafkir the vegetables not because he cannot get to them, but out of goodwill. The Gemara here questions how far his goodwill extends. The Gemara entertains the possibility that he gives his neighbor the right to take even the vegetables that are only partially within the neighbor's reach.

(c) When one picks vegetables, he normally does not uproot the entire plant, since plants normally continue to bear fruit throughout their growing season. Instead, one cuts off the vegetables along with part of the stem, leaving the rest of the plant rooted. Different vegetables are cut from their roots with different amounts of the stems; some are cut close to the root, which regenerates and produces a new stem, while others are cut closer to the vegetable, leaving the stems attached to the root.

The first question of the Gemara (when the owner of the upper garden is able to reach the stem but not the roots) may refer to a vegetable that is normally cut close to the roots. The question of the Gemara is whether the owner of the upper garden, who cannot reach the place where the vegetable is normally cut, will instead pick the vegetable in an abnormal fashion (by cutting the stem near the vegetable, or by grabbing the stalk and pulling the roots out of the ground), or whether he will be embarrassed to do so and will be Mafkir it to the owner of the lower garden.

The second question of the Gemara (when the owner of the upper garden is able to reach the roots but not the stem) can be explained in a similar manner. This question may refer to the type of vegetable that is normally cut near the vegetable itself (where the owner of the upper garden cannot reach) and not near the roots. The Gemara's question is whether the owner of the upper garden will cut the vegetable in an abnormal fashion or whether he will be embarrassed to do so and will be Mafkir it for the owner of the lower garden. (M. Kornfeld)

OPINIONS: Rebbi Shimon rules that when vegetables grow from the vertical surface of an embankment between two gardens, the owner of the upper garden is entitled to all of the vegetables that he can reach without overly stretching himself. The owner of the lower garden has the right to the rest.

To what extent does the lower neighbor have the right to the vegetables that the upper neighbor cannot reach? Is he entitled only to the stalks of the vegetables, or even to their roots? Both Rebbi Meir and Rebbi Yehudah -- who disagree with Rebbi Shimon in the Mishnah -- agree that the roots of the vegetables growing on the vertical embankment belong to the owner of the upper garden. Does Rebbi Shimon argue with both of them and say that when the owner of the upper garden cannot reach the vegetables, the lower neighbor has the right to take even the roots of the vegetables?

(a) The ROSH (cited in previous Insight) writes that if the owner of the upper garden cannot pull out the roots of the vegetables by tugging at their stalks, then it is obvious that he does not have the right to the vegetables, since he would need to enter the lower garden in order to take them. (The Rosh questions why the Gemara does not use this logic to determine the Halachah in a case in which the upper neighbor can reach the stalks but not the roots, or vice versa.) This implies that if the upper neighbor cannot reach the vegetables, then the lower neighbor is entitled to take even their roots. That is why it is so obvious to the Rosh that the upper neighbor has no right to the vegetables in such a case.

This is also the way the DERISHAH understands the Sugya. The Derishah (CM 167) explains that when the upper neighbor can reach only the foliage and not the roots, and he cannot pull out the vegetables by grasping their foliage, the roots belong to the lower neighbor, and the only matter in doubt is the ownership of the foliage.

According to this understanding, however, Rebbi Shimon's opinion is somewhat inconsistent with the other opinions mentioned in the Mishnah. The other opinions (Rebbi Meir and Rebbi Yehudah) debate only the ownership of the foliage, while Rebbi Shimon adds that the ownership of the roots is in doubt as well.

(b) The RAMACH, cited by the SHITAH MEKUBETZES, writes that even Rebbi Shimon agrees that the owner of the upper garden owns the roots of the plants growing on the vertical embankment. Only with regard to the ownership of the foliage does Rebbi Shimon distinguish between a case in which the upper neighbor can reach the plants and a case in which he cannot reach them.

Can this opinion be reconciled with Rashi's explanation of Rebbi Shimon? According to Rashi, Rebbi Shimon gives the lower neighbor possession of anything which the upper one cannot reach because the upper neighbor would be embarrassed to ask permission to enter the lower garden and pick the vegetables. That logic should apply to the roots of the plant as well.

Perhaps even Rashi agrees with the Ramach. The upper neighbor may be embarrassed to ask permission to pick the plants partly because the lower neighbor may believe that he has the right to the plants (since if he would have filled his garden with dirt, there would be no plants, as the Mishnah says). There is no logical reason, however, for the lower neighbor to believe that he is entitled to the roots. Since the roots are unquestionably the property of the upper neighbor, the upper neighbor would not be embarrassed to ask to enter the lower garden in order to collect his roots, any more than he would be embarrassed if his child's ball fell into the lower garden and he had to ask permission to enter to collect it. (M. Kornfeld)

QUESTION: Rashi and Tosfos explain that "King Shevor" -- who praised the ruling of Rebbi Shimon in the Mishnah -- was the ruling monarch of the Persian Empire at the time.

Why was an Amora permitted to teach the monarch the Halachah of the Mishnah? The Gemara in Chagigah (13a) states that teaching Torah to a Nochri is prohibited! (RAV YONASAN EIBESHITZ in YA'AROS DEVASH, Derush #16; MAHARATZ CHAYOS)

ANSWER: RAV YONASAN EIBESHITZ and the MAHARATZ CHAYOS answer that it was permitted to teach him this Halachah, since this Halachah is a monetary law and therefore applies to Nochrim as well as Jews, because Nochrim are also commanded to adjudicate monetary laws ("Dinim").

This answer, however, is problematic. RASHI (118b, DH veha'She'ar) explains that the reason why Rebbi Shimon rules that the plants on the lower part of the vertical embankment belong to the owner of the lower garden is that the owner of the upper garden would be embarrassed to ask permission to enter the lower garden to gather those plants (see previous Insights). This logic does not seem to apply to Nochrim, who are not endowed with the same sense of modesty as Jews. As the Gemara teaches in Yevamos (79a), "Baishanus" (natural modesty) is an identifying trait of Jews. Nochrim are not easily embarrassed, especially when collecting something that is rightfully theirs. Since a Nochri would not be ashamed to enter the lower garden and pick his plants, the Halachah with regard to Nochrim should differ from that of the Mishnah; all of the plants should belong to the upper owner. Why, then, was it permitted to teach King Shevor the Halachah of Rebbi Shimon?

The answer may be learned from the Gemara in Berachos (8b) which teaches that the nation of Persia-Mede differs from all other foreign nations. The people of that nation are outstanding in their modesty with regard to preserving their own privacy and that of others ("Tzenu'im... Yo'atzim ba'Sadeh"). That is why this Halachah indeed applied to the nation of King Shevor, and why it was permitted to teach it to him.

This also explains why the king praised this Halachah more than any other. Since it is a Halachah that is based on people's natural modesty, he, as a Persian, found it particularly appealing.

This explains why the order of the Mishnah continues with Maseches Bava Basra, which begins with the laws of building a dividing wall between two neighboring yards in order to protect the privacy of both parties. The Gemara debates whether it is obligatory to build such a wall, or it is only optional. According to both opinions, however, the parties discussed in the Mishnah would build such a wall between their yards in order to protect their privacy.

This concept also relates to the beginning of Bava Metzia. The Mishnah teaches that when two people who are both holding a Talis contest the ownership of the Talis, it is divided between them. The Talis is not placed in the custody of Beis Din until its ownership can be proven, as is done in the case of "Manah Shelishi" (3a, in which two people contest who it was who deposited with a third person a two hundred Zuz cache of money). Beis Din also does not rule that "the stronger one shall prevail" ("Kol d'Alim Gevar"), as is the Halachah in a case in which two people debate the ownership of a boat. Rashi there (2a, DH b'Mekach u'Memkar) explains that the Talis is divided between them because it is possible that each one genuinely believes that the Talis is his, and Beis Din cannot be certain that one of the parties is lying. That is, perhaps both noticed the Talis in the street and picked it up together. Each claimant may think that he picked it up a split second before the other, but in truth they both picked it up at the same time and they both own it. If, however, each one claims to have woven the Talis himself, one of them must be lying and the Talis would not be divided between them (Rashi, ibid.).

Accordingly, the Mishnah there (2a) teaches that a Jew should not be suspected of outright lying and seizing an item that belongs to another Jew. A Jew's natural trait of modesty causes him to be embarrassed to do something that does not look correct, and he would never act in such a manner. That is why each of the claimants receives part of the Talis, for it cannot be assumed that they are outright liars.

Accordingly, both in the beginning of the Maseches and in the end of the Maseches, and in the beginning of Bava Basra, the Mishnah teaches a law that is based on the praiseworthy trait of modesty that is a defining character trait of the Jewish nation. This is a most appropriate point to emphasize for Seder Nezikin, since an ingrained modesty will prevent a person from causing any damage to another person's property. (M. Kornfeld)

In the Zechus of the modesty of the Jewish nation, may we merit to see the Shechinah again rest upon the nation of Hash-m in Tziyon, in our days!