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Bava Metzia, 101

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?

(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 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).

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.

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.

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 keep them."

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)

101b

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)