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Bava Metzia, 119

1) WHICH VEGETABLES MAY THE OWNER OF THE UPPER GARDEN TAKE

QUESTION: The Tana'im in the Mishnah argue concerning who is entitled to take the vegetables that grow on the incline between two gardens, an upper garden and a lower garden. Rebbi Shimon maintains that the owner of the upper garden may take the vegetables growing on the embankment for as far as his arm can reach, but the rest belong to the owner of the lower garden.

The Gemara asks whether the owner of the upper field 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 are growing upwards and are, therefore, closer to the upper garden than the roots.) Similarly, is the upper neighbor entitled to the vegetables when he can reach only the roots but he cannot reach the stalks? (That is, the stalks of the vegetables are growing downwards, and are, therefore, farther away from the upper garden than the roots.)

The RAMBAN and the ROSH (10:9) ask why the Gemara is unsure about this Halachah. RASHI (118b, DH v'ha'She'ar) explains that Rebbi Shimon essentially agrees with Rebbi Meir, that the vegetables growing on the incline belong to the owner of the upper garden. That is why he may take the vegetables which his arm can reach. However, he may not take the vegetables beyond the point that his arm can reach, because we assume that he was Mafkir them and that he had no intention to take them, since it is embarrassing for him to ask his neighbor for permission to enter the garden of his neighbor to pick his vegetables. If the upper neighbor can manage to pull out the vegetables by pulling at the stalks, he will not be Mafkir them, and thus they should belong to him. If he cannot pull out the vegetables by pulling at the stalks, and he must enter the lower garden to pick them, then he *will* be Mafkir them! What, then, is the Gemara's question?

ANSWERS:

(a) The BEIS YOSEF (CM 167) explains that the Gemara's question is that even if he *can* pull out the vegetables by grasping the stalk, he will be embarrassed to do so, because it might appear to the lower neighbor that he entered the lower garden without permission to pick it (since he knows that the upper neighbor could not reach the roots). Similarly, if the upper neighbor can reach the roots but not the stalks, perhaps he will be embarrassed to pick the vegetable, because the lower neighbor might claim that it was growing within his domain, since he knew that the upper neighbor could not reach the stalks. Therefore, the Gemara questions whether or not the upper neighbor is Mafkir these vegetables.

(b) The RAMBAN (118b), because of this question, rejects Rashi's explanation. He explains that Rebbi Shimon essentially holds like Rebbi Yehudah, that all of the vegetables belong to the owner of the lower garden. However, the owner of the lower garden is Mafkir the vegetables growing higher up on the embankment (as far as the arm of his neighbor can reach) for the good of his neighbor. He does this favor for the upper neighbor because he wants to remain on good terms with him so that the upper neighbor will not remove his dirt from there and cause the vegetables to stop growing. Therefore, the owner of the lower garden is Mafkir the vegetables not because he cannot get to them, but out of goodwill. The question of the Gemara is how far his goodwill extends. Does he even give his neighbor the right to take vegetables that the neighbor can only reach partially?

(c) When picking vegetables, one normally does not uproot the entire plant, since the plants normally continue bearing 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 more or less 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) is discussing a vegetable that is 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. The Gemara is discussing the type of vegetable that is normally cut near the vegetable (where the owner of the upper garden cannot reach) and not near the roots. The 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 the embankment between an upper garden and a lower garden, the owner of the upper garden may take takes all of the vegetables that he can reach without over-stretching himself. The owner of the lower garden takes the rest.

If the owner of the upper garden cannot reach the plants, does the lower neighbor have rights only to the stalks of the vegetables that grow there, or even to the roots of such vegetables? We learned earlier that both Rebbi Meir and Rebbi Yehudah -- who argue 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. Is Rebbi Shimon arguing with both of them and saying that when the owner of the upper garden cannot reach the vegetables, the lower neighbor has rights 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 clear that he should not be given the rights to the vegetables, since he would need to enter the lower garden in order to take them. This implies that if the upper neighbor cannot reach them, then the lower neighbor has rights to take even the roots of the vegetables. That is why it is so obvious to the Rosh that the upper neighbor has no rights 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 cannot reach the roots of the plant but only the foliage and he cannot pull out the vegetable by grasping its 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, 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 according to Rebbi Shimon it is clear that the owner of the upper garden owns the roots of the plants growing on the vertical embankment. The distinction he makes between whether or not the upper neighbor can reach the plants only applies to the foliage but not to the roots.

Can this opinion be reconciled with Rashi's explanation for Rebbi Shimon? If Rebbi Shimon gives the lower neighbor possession of anything the upper one cannot reach because the upper neighbor is embarrassed to ask permission to enter and pick the vegetables, then that logic should equally apply to the roots of the plant.

Perhaps part of the reason why the upper neighbor is embarrassed to ask permission to pick the plants is because he knows that the lower neighbor believes that he has rights to the plants there (since if he would have filled his garden with dirt, there would be no plants, as the Mishnah says). With regard to the roots, though, the lower neighbor has no claim of rights whatsoever. Therefore, the upper neighbor will 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 and collect it. (M. Kornfeld)

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

How was it permitted for an Amora to teach him the Halachah of our Mishnah? We are taught (Chagigah 13a) that it is prohibited to teach Torah to a Nochri! (RAV YONASAN EIBESHITZ in Ya'aros Devash, Drush #16; MAHARITZ CHAYUS) ANSWER: RAV YONASAN EIBESHITZ and the MAHARITZ CHAYUS answer that it was permitted to teach him this Halachah, since it involved monetary law, and it therefore applied to Nochrim as well as Jews, because Nochrim are also commanded to adjudicate monetary law ("Dinim").

However, we may ask a question on their answer. RASHI (118b DH veha'She'ar) explains that the reason Rebbi Shimon gives the plants growing on the lower part of the vertical embankment to the owner of the lower garden is because the owner of the upper garden is embarrassed to ask permission and enter the lower garden to claim those plants (as discussed above in previous Insights). This logic would not seem to apply to Nochrim, who are not blessed with the same sense of modesty as Jews. As the Gemara teaches in Yevamos (79a), "Baishanus" (natural modesty) is an identifying trait of Jews; others are not easily embarrassed, especially when collecting what is theirs by monetary right. Since a Nochri sill simply enter the lower garden and pick his plants, the Halachah of Nochrim should be different than 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 was different from other non-Jewish nations. The people of that nation are outstanding in their modesty with regard to preserving the privacy of themselves and 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, then, is why the Mishnah continues with Maseches Bava Basra, which starts with the Halachos 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 whether it is only optional. According to both opinions, though, the parties discussed in the Mishnah are building such a wall between their yards in order to protect their privacy.

This 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, we split it. We do not simply put the Talis in the custody of Beis Din until its ownership can be proven, as we do in the case of "Manah Shelishi" (3a, in which case two people contest who it was that gave a third person a two hundred Zuz cache of money). We also do not rule that "the stronger one shall prevail" ("Kol d'Alim Gevar"), as we do in the case where two people debate the ownership of a boat. Rashi there (2a, DH b'Mekach u'Memkar) explains that we split the Talis because it is possible that they both actually think the Talis is theirs, and we cannot be certain that one of the parties is lying. That is, perhaps both noticed the Talis in the street and they picked it up together. Each claimant thinks 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 each of them had claimed to have woven the Talis himself, then we would not have split it (Rashi, ibid.).

The Mishnah (on 2a) is teaching, then, that a Jew should not be suspected of outright lying and grabbing an item that is not his from another Jew. The Jew's natural trait of modesty and being embarrassed to do something that does not look correct, does not allow him to act in such a manner. That is why we give each of them part of the Talis and assume that we are not dealing with 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 is teaching 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 once again rest upon the nation of Hashem in Tziyon, in our days!