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Gitin, 8

1) GROWING PLANTS IN THE UPPER FLOOR OF A HOUSE IN ERETZ YISRAEL

OPINIONS: The Gemara discusses the Halachos of an Atzitz Nakuv, which is considered to be attached to the ground underneath it, and the Halachos of an Atzitz she'Eino Nakuv (or an Atzitz Nakuv which is separated from the ground by a partition), which is not considered to be part of the ground and is exempt mid'Oraisa from Terumos u'Ma'aseros. Mid'Rabanan, though, even an Atzitz she'Eino Nakuv is considered attached to the ground (Mishnah, Shabbos 95a) and is Chayav in Terumos u'Ma'aseros mid'Rabanan.

What is the Halachah when a person fills the upper story of his house with soil and grows plants there? If a person takes an Atzitz Nakuv to the upper story of his house, it is clear that what grows in the Atzitz Nakuv is not Chayav in Terumos u'Ma'aseros (ROSH, Gitin 2:22). Will the same Halachah apply when a person fills the upper story with soil and grows plants in that soil?

(a) The ROSH (Teshuvos 2:4) writes that only a portable pot of land (like an Atzitz or a boat) is exempt, mid'Oraisa, from Terumos u'Ma'aseros when it is not Nakuv, because it is not considered "Tevu'as Zar'echa ha'Yotzei ha'Sadeh Shanah Shanah" (Devarim 14:22), the produce of the ground that is produced year to year, which implies that it grows the way that plants normally grow. In contrast, if a person plants inside a non-portable item (such as in the upper story of his home), then it is considered as though he planted on the ground of Eretz Yisrael, because it is considered attached to the ground regardless of the amount of space separating the upper story from the ground floor, since the upper story is attached to the ground floor by the support beams that hold it up. Therefore, what grows in the upper story is Chayav in Terumos u'Ma'aseros, mid'Oraisa. (See TOSFOS in Bava Metzia 88a, DH Ba'al ha'Bayis, who might also be of this opinion.)

(b) However, the VILNA GA'ON (in the Shulchan Aruch) rejects the opinion of the Rosh and rules that whether or not the object is portable, if it is separated from the earth of Eretz Yisrael by a solid partition, it is considered to be an Atzitz Nakuv and, mid'Oraisa, it is not Chayav in Terumos u'Ma'aseros. This also seems to be the opinion of TOSFOS (7b, DH Ha), who asks that if a person brings soil to an upper story in a house in Eretz Yisrael, what grows there is exempt from Terumos u'Ma'aseros, and thus, Tosfos asks, why does a Shali'ach not have to say "b'Fanai Nichtav" when bringing a Get from there?

If Tosfos holds like the Rosh, it would be obvious why the upper story is considered to be part of Eretz Yisrael, since -- if a person fills the upper story with soil and grows plants there -- those plants *are* Chayav in Terumos u'Ma'aseros. (It is interesting to note that the Rosh himself asks the question of Tosfos, despite what he writes in the Teshuvah.)

However, there is another reason to exempt what is planted in an Upper story (or anywhere in a house for that matter) from Ma'aser. The Yerushalmi (Orlah 1:2, cited by the Mishneh l'Melech, beginning of Hilchos Shevi'is) states that a tree planted inside of a house is exempt from Ma'aser because the verse (Devarim 14:22) obligates only produce "ha'Yotzei ha'Sadeh Shanah Shanah" -- that which grows from a *field* -- in Ma'aser. A house is not considered a field.

The RAMBAM records this in Hilchos Terumos (1:10). However, he writes that what grows in a house is still Chayav in Ma'aser *mid'Rabanan*, just like fruits that are picked from a tree in the *yard* ("Chatzer," which is not a field) are Chayav in Ma'aser (when one picks two or more fruits at one time).

(c) The RA'AVAD there argues that what grows in a house is exempt from Ma'aseros even mid'Rabanan. Accordingly, what grows in an upper story should also be exempt even mid'Rabanan, according to the Ra'avad, because it does not grow in a "field" ("Sadeh").

The CHAZON ISH asks, according to the Rambam and Ra'avad, why does our Sugya insist that what grows in a boat is Chayav in Ma'aser, mid'Oraisa? If it is growing in a boat, it is not growing in a field!

The Chazon Ish answers that only when it grows in a covered area is it not considered to be in a field. If it grows in an open area, it is considered a field. The boat is uncovered and therefore it is Chayav in Ma'aser, mid'Oraisa.

According to the Chazon Ish, a tree that grows in a Chatzer is Chayav in Ma'aser, mid'Oraisa, since it is exposed to the elements there and is considered to be in a field ("Sadeh"). When the Rambam writes that what grows in a house is not less Chayav than what grows in a Chatzer, he means that what grows in a house is not exempt from Ma'aser because it did not *enter* the house, but it grew there, just like what grows in a Chatzer is not exempt from Ma'aser because it did not *enter* the Chatzer, but it grew there (Berachos 25b, Gitin 81a).

RAV CHAIM KANIEVSKY (in his footnotes to the Rambam) suggests that perhaps the Rambam does not distinguish between a covered house and an uncovered house -- neither are considered to be a field. Rather, the reason what grows in the boat is Chayav in Ma'aser, mid'Oraisa, is because the Mishnah is discussing a person who covered the floor of the boat with earth and plowed it, making it into a field. (See Rambam, Hilchos Ma'aseros 4:14.)

(Rav Chaim notes that the Rambam and Yerushalmi write that what grows in the house is exempt only from *Ma'aser*. It is perhaps Chayav in *Terumah*, since the laws of the Chiyuv of Terumah are not identical to those of Ma'aser. See Rambam, Hilchos Terumos 2:6).

QUESTION: The Gemara says that the northern boundary of Eretz Yisrael is "Turei Amnon" (the mountains of Amanah or Amanus). How is this Gemara to be reconciled with the Gemara on the previous Daf which implies that the northern-most part of Eretz Yisrael is the city Keziv?

ANSWERS:

(a) The MAHARAM SHIF points out that according to Rashi (7b),who explains that Ako and Keziv are in the north-east corner of Eretz Yisrael, perhaps Turei Amnon is the *north-west* border.

However, as the Rishonim point out, this does not conform to what we know today to be Ako, nor does it conform to the Midrashim which describe Ako as being on the coast. The RAMBAN (7b), in fact, suggests that Rashi writes that Ako is in the east only to explain the Gemara's initial understanding of the Beraisa about Ako. According to the Gemara's conclusion, though, even Rashi agrees that Ako and Keziv are in the north-west corner of Eretz Yisrael (on the same side as Turei Amnon).

(b) The RAMBAN (7b) explains that Keziv demarcates only the northern-most part along the *path* that leads northward from Ako. The border of Eretz Yisrael, however, is north of Keziv, at Turei Amnon. The area to the east of this path is definitely Chutz la'Aretz, like the Gemara says, but only until the path reaches Keziv. The reason why the area to the east of the path is no longer Chutz la'Aretz once the path passes Keziv is either because the path turns westward to the coast when it reaches Keziv, or because the strip of Eretz Yisrael which connects Ako to Turei Amnon widens at that point, at Keziv.

8b