Overhanging Trees

Maaser Sheni (3:7) | Yisrael Bankier | 8 years ago

The Mishnah (3:7) taught that whether a tree is planted in Yerushalaim and the branches stretch outside the walls or the reverse, we assess whether the parts of the tree is considered inside Yerushalaim with respect to the walls. In other words, the walls are the only consideration despite the fact a tree may hang over them. For the purposes of maaser sheni, whether one is considered inside Yershalaim is important. Firstly, maaser sheni produce may only be consumed inside Yerushalaim. Secondly, while one can transfer kedushat maaser sheni onto money, if the produce is tahor, one can only do so outside Yerushalaim.

This Mishnah should sound familiar. We discussed this case in Maaserot (3:10). There however, with respect to maaser sheni, the Mishnah taught that the determining factor is the branches. The Yerushalmi explains that the Mishnah there means that we also consider the branches when determining the location. The Barenura explains that that means we also consider the branches when it results in a stringency. In other words, if the branches are hanging inside Yerushalaim, just as once would not be able to redeem the maaser sheni by the branches, one cannot at the trunk of the tree outside the walls. Similarly, if the tree whose trunk is inside has its branches hanging outside the walls, since one would not be able to eat maaser sheni produce by those branches, one is not allowed to eat such produce by the trunk of the tree.

It appears that the two Mishnayot contradict each other. In this Mishnah however, the Bartenura explains that this Mishnah is consistent with the one in Maaserot explaining that when it states we also go by the branches to mean that the walls is the determining factor. The Tosfot Yom Tov notes that the Bartenura appears to be contracting his explanation in Maaserot. He then cites the Rash that first explains that the Mishnah in Maaserot expresses the opinion of R’ Yehuda whereas our Mishnah is the opinion of the Chachamim. In other words, the apparent contradiction is not a difficulty since they express two different opinions. The Rash’s second answer is the same as the Barenura in this Mishnah that explains the Mishnah in Maaserot in the terms of this Mishnah. These two answers are found in the Gemara (Makkot 12b) – first being the opinion of Rav Kahana and the second being Rav Ashi’s. Consequently, it appears that the Bartenura provides the first explanation in Maaserot while adopting the second explanation here.

The Tosfot Yom Tov then cites the opinion of the Rambam who also explains that the two Mishnayot as one consistent position. He however explains, per the understanding of the Kesef Mishnah, that this Mishnah relates to the law of consuming maaser sheni which is only permitted inside the walls irrespective of overhanging trees. The Mishnah in Maaserot however relates to redeeming maaser sheni produce and there even if one is outside the walls, if he is under the branches of a tree whose trunk is inside Yerushalaim then he can longer redeem the produce. In other words, if someone is underneath the overhanging branches outside the walls we rule stringently and treat him as being outside Yerushalaim thereby preventing him from consuming maaser sheni but treat him as being inside preventing him for redeeming maaser sheni (Maaser Sheni 2:5).

The Mishnah Rishona finds this understanding of the Rambam since that Mishnah should have taught we go by the trunk rather than, as it states, we go by the branches. This is because the stringency is we treat the area below the branches outside the gates of Yerushalaim as being inside since its trunk is inside.

The Mishnah Rishona therefore explains why the Rambam did not settle with either of the previous two explanations. Firstly, if the ruling of both Mishnayot is determined by the walls, then any reference to the branches or trunks is not appropriate. Furthermore, explaining the two Mishnayot according to two different opinions still means that the Mishnayot contradict each other.

Instead the Mishnah Rishona explains that principally, the walls are the determining factor consistent with the opinion of the Rabbanan. When the earlier Mishnah explains that we also go by the branches, it means that the Chachamim ruled stringently to include any overhanging branches that originated from trees inside Yerushaliam to be consider like Yersushalaim. They did not rule stringently however in the opposite case – where the tree was planted outside with the branches hanging inside – to consider those branches as if they were outside Yerushalim. The reason being that maaser sheni enters yerushalaim and not the reverse so the stringency applied to expanding the inside Yerushalaim and not the reverse.

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