THOUGHTS ON THE DAILY DAF
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Bava Metzia, 101
BAVA METZIA 101-105 - Ari Kornfeld has generously sponsored the Dafyomi
publications for these Dafim for the benefit of Klal Yisrael.
1) HALACHAH: PLANTING TREES
OPINIONS: The Mishnah (100b) discusses a case in which one's olive trees
were swept away by an overflowing river and took root in the field of his
neighbor. The Gemara cites a Beraisa which says that the owner of the olive
trees may not take his olive trees from his neighbor's field and replant
them in his own field. Rebbi Yochanan says that the reason for this is
because of "Yishuv Eretz Yisrael" -- in order to settle the land of Eretz
Yisrael (some Rishonim explain this to mean that if the owner takes his
trees back to his own field, the neighbor will not replant trees in his
field (since he did not plant any there to begin with), while if the owner
does not take his trees back, he *will* plant new trees in his field, since
he wanted trees there and had planted trees there to begin with; hence,
Eretz Yisrael will be planted with more trees). Rebbi Yochanan's reason for
the ruling of the Beraisa clearly seems to limit the ruling to Eretz
Yisrael. Outside of Eretz Yisrael, though, it seems that the owner of the
trees *may* take back his trees. Is this indeed the Halachah?
2) PAYING FOR UNSOLICITED IMPROVEMENTS MADE TO ONE'S PROPERTY
(a) Most Rishonim (see TOSFOS 101b, DH b'Sadeh) explain the Gemara in its
straightforward sense -- that the ruling of the Beraisa applies only in
HALACHAH: The TUR and SHULCHAN ARUCH (CM 168:1) state explicitly that
outside of Eretz Yisrael, the owner of the trees may retrieve his trees. The
ruling of the Beraisa applies only in Eretz Yisrael, because of the Mitzvah
of Yishuv Eretz Yisrael.
(b) The RAMACH (cited by the Shitah Mekubetzes, and cited by the ME'IRI as
"Yesh Poskin"), however, rules that this Halachah applies even outside of
Eretz Yisrael. How, then, does he understand the words, "Mishum Yishuv Eretz
Yisrael?" The Ramach suggests that "Yishuv Eretz Yisrael" means the
"settling of the land *of a Yisrael* (i.e. of a Jew)." He maintains that
there is a positive benefit in planting and cultivating land owned by Jews
in Chutz la'Aretz, and he finds a source for this in the words of Yirmiyahu
to the people in exile in Bavel, "v'Dirshu Es Shelom ha'Ir..." -- "Seek the
peace of the city to which I have exiled you..." (Yirmiyahu 29:7).
QUESTION: The Gemara quotes Rav who rules that in a case where one enters
and plants the field of another person without permission, the owner of the
field is obligated to pay him, but the intruder has the "lower hand" with
regard to how much. If the intruder's expenses were more than the value of
the improvement he made to the field, then the owner needs to pay only the
value of the improvement to the field. If the intruder's expenses were
*less* than the increase to the value of the field, then the owner needs to
pay only the expenses. Shmuel says that the owner must pay the amount that
he would have paid to have his field planted. Rav Papa explains that Rav and
Shmuel are not arguing. Rav is referring to a case in which the field was
not designated to be planted, and Shmuel is referring to a case in which the
field was designated to be planted.
3) ONE WHO FENCED-IN HIS FIELD AFTER AN INTRUDER PLANTED IT
We see that the owner of the field is obligated to pay something to the
intruder who planted his field without permission. Why must he pay? Why do
we force him to accept the improvement and incur this expense, when it was
incurred entirely without his consent?
ANSWER: The ROSH (8:22) answers that the Gemara is referring only to a case
in which the landowner is interested in keeping the improvements made to his
land. If he has no interest in keeping the improvements, then, indeed, he is
entitled to tell the intruder, "Take your improvements and leave!"
Regarding a case in which the field was *not* designated to be planted, the
Rosh explains that the owner claims, "I did not want these improvements to
be made to my field, but since you have already made them, I am willing to
The Rosh (8:23) similarly explains the next case in the Gemara. When one
enters the destroyed building of another person and rebuilds it without
permission, there is an argument whether he is entitled to take away the
wood and stones that he used to rebuild the other's building (or force the
other to pay for them). The Rosh writes that when the following two
conditions are present, the owner must pay for the renovations even if he
claims that he does not want them: first, prior to the renovations, he was
not using the dilapidated building, and, second, he is significantly
financially solvent such that paying for the renovations will not adversely
affect his livelihood. When these two conditions are met, even if the owner
claims he is not interested in the repairs, we force him to pay, for we
assume that he is merely trying to find a way to obtain free repairs.
The CHAZON ISH (Bava Kama 22:6) writes that the Beis Din must be sensitive
to the subtleties of each individual case and discern whether the property
owner truly does not want the improvements made to his property, or whether
he is just trying to obtain free labor in a devious manner while in truth he
wants to make use of the work that was done. (Y. Marcus)
QUESTION: The Gemara cites the case in which Rav made his ruling concerning
an intruder who plants the field of another person without permission. An
intruder entered and planted a field without permission. The owner said that
he did not want it planted. Rav said the owner must assess the improvements
that the intruder made to the field and he must pay for the lower of the two
values, either the expenses or the improvements. The owner refused to pay.
Later, Rav saw the owner guarding the trees that the intruder had planted.
When Rav saw that the owner was happy that it was planted, he forced him to
pay the intruder the full value of the improvements (or the expenses,
whichever was greater).
Why did Rav obligate him to pay? The owner explicitly expressed discontent
with the improvements, and he is not obligated to accept them since the
field was not designated to be planted (as Rashi points out in DH Lo
Ba'ina). Even though he later fenced-in his field, that is not necessarily
proof that he was satisfied that his field was planted. Perhaps once the
trees were in his field and he could not get rid of them, he decided to
build a fence to protect the field. Why, though, must he pay for the trees
as if he wanted them planted there?
ANSWER: The RAMBAN explains that in the case of the Gemara, had the owner
truly not desired the improvement to his field, he would have insisted on
the improvement being removed instead of fencing in his field. (Y. Marcus)
4) HALACHAH: THE PROPER WAY TO AFFIX A MEZUZAH
HALACHAH: The Mishnah lists the things that a homeowner must supply when he
leases a house to a tenant, and the things that the tenant is obligated to
supply. The homeowner must supply anything that requires a craftsman, while
anything that does not require a craftsman is supplied by the tenant. The
Gemara inquires who must supply the Mezuzah. The Gemara questions that it is
obvious -- the one who lives in the house is obligated to affix the Mezuzah!
The Gemara answers that its initial inquiry was who must build the place
(such as drilling a crevice in the doorpost) in which to put the Mezuzah.
Rav Sheshes answers that since one can place the Mezuzah in a hollow reed
and suspend it from the doorpost, the place of the Mezuzah does *not* need a
craftsman and thus the tenant must provide it.
The PISCHEI TESHUVAH (YD 289:2) writes in the name of the VILNA GA'ON that
the Mezuzah must be placed directly in the doorpost without any encasement.
RAV CHAIM KANIEVSKY, shlit'a, quotes the CHAZON ISH as having said, "These
words could not have come from the [Vilna] Ga'on himself," because the Vilna
Ga'on himself (in YD 289:1) cites our Gemara as proof that a case *may* be
used. Rav Chaim Kanievsky (in his commentary to the Rambam, Hilchos Mezuzah
2:56) suggests that the Vilna Ga'on objected only to a Mezuzah-case that is
made from a different material than the doorpost, because the case would
then be a Chatzitzah between the Mezuzah and the doorpost. Accordingly, the
Vilna Ga'on understood our Gemara as referring to a case made out wood, the
same material as the doorpost, and thus such a case is not a Chatzitzah
("Min b'Mino Eino Chotzetz"). (Y. Marcus)