Bava Metzia

is exclusive of expenses. IF THE RIVER SWEPT AWAY A MAN'S OLIVE-TREES. 'Ulla said in the name of Resh Lakish: This was stated only if they were uprooted together with their clods of earth, and after three years [of having been swept away]; but within the three years, it all belongs to the owner of the olive trees, for he can say to him [the landowner]: 'Had you planted them, could you have eaten of them within three years?'  But cannot he answer: 'Had I planted them, I would have enjoyed the whole of their usufruct after three years; whereas now you share it with me?'  But, when Rabin came,  he said in the name of Resh Lakish: This holds good only if they were uprooted together with their clods, and within three years; but after three years, it all belongs to the field-owner. For he can say to him, 'Had I planted them myself, would I not have enjoyed their entire usufruct after three years?'  But let him answer: 'Had you planted them, you could not have enjoyed anything at all within three years, whereas as it is, you share half with me!' — Because he can retort, 'Had I planted, they would have been small, and I could have sown beets and vegetables under them.' A Tanna taught: If he said, 'I wish to take my olive trees,' he is not heeded. Why? — R. Johanan said: That Palestine may be well cultivated. Said R. Jeremiah: For such an answer a master is necessary. We learnt elsewhere: R. Judah said: If one leases a field of his father's from a heathen,  he must tithe [all the crops] and then give him [the heathen] his share.  Now, the scholars understood it thus: What is meant by 'a field of his fathers' is Palestine. And the reason it is called the 'field of his fathers' is because it is a field of Abraham, Isaac and Jacob. And he [R. Judah] holds: A heathen cannot acquire a title in Palestine to free [the crops] from tithes; also, one who leases [on a percentage] is as a renter [at a fixed rent]: just as a renter must tithe crops and pay him, whether the field produces or not,  because it is as repaying a debt: so also, he who leases a field is as though he were settling a debt: and therefore must first tithe the crops and then pay him. R. Kahana said to R. Papi — others state, to R. Zebid: But what of [the Baraitha] that was taught: R. Judah said: If one leases a field of his fathers from a heathen oppressor,  he must tithe [the crops] and pay him [his percentage] — why particularly from an oppressor? Does not the same hold good even if he is not an oppressor? — But in truth, a heathen can acquire a title in Palestine to free [crops] from tithes, whilst a lessee is not as a renter, and 'a field of his fathers' is meant quite literally.  But him [the son] the Rabbis penalised,  because since it is more precious to him [than to others], he will go and lease it [on such disadvantageous terms]; whereas others would not [accept it on such terms].  But why did the Rabbis penalise him? — R. Johanan said: In order that it might come absolutely into his possession.  Said R. Jeremiah: For such an answer a master is needed. It has been stated: If one enters his neighbour's field and plants it without permission, Rab said: An assessment is made, and he is at a disadvantage.  Samuel said: We estimate what one would pay to have such a field planted. Said R. Papa: There is no conflict. The latter [Samuel] refers to a field suitable for planting;  the former [Rab] to a field unsuitable for planting. Now, this ruling of Rab was not explicitly stated, but inferred from a general ruling. For a man came before Rab.  'Go and assess it for him,' said he.  He demurred, 'But I do not desire it.'  Said he to him, 'Go and assess it for him, and he shall be at a disadvantage.' 'But I do not desire it,' he reiterated. Subsequently he saw that he had fenced and was guarding it, whereupon he said to him, 'You have revealed your mind that you desire it. Go and assess it for him, and he [the planter] shall be at an advantage.' It has been stated: If one enters his neighbour's ruins and rebuilds them without permission, and then says to him, 'I want my timber and stones back' — R. Nahman said: His request is granted. R. Shesheth said: His request is not granted. An objection is raised: R. Simeon b. Gamaliel said: Beth Shammai maintain, His request is granted; Beth Hillel hold, It is not granted. Shall we then say that R. Nahman ruled in accordance with Beth Shammai!  — He agrees with the following Tanna. For it has been taught: His request is acceded to: this is the opinion of R. Simeon b. Eleazar. R. Simeon b. Gamaliel said: Beth Shammai maintain, His request is granted; Beth Hillel, It is not. What is our decision on the matter? — R. Jacob said in R. Johanan's name: