Siman 330

One who receives a field from his fellow to plant trees in his field according to the measure that they are able to plant, such as a plantation of ten per beit seah, the owner of the field must accept ten blighted trees for every hundred of them. For even if those trees do not produce fruit, such as if they were not harvested well or the saplings are poor, the receiver is not obligated to plant others in their place, because it is the way of trees to have ten blighted ones per hundred, and the owner of the field waives this by default. But if there are more blighted ones among them, even one more, we roll everything upon him, and the receiver is obligated to uproot all the blighted ones and plant all of them as good ones. And the reason is because from the outset, when he begins to plant, it is forbidden for him to plant even one that he knows is inferior; and if it becomes known while he is still engaged in the planting that there is even one that is not good, he is obligated to remove it and plant another in its place. Only when it was not known until after the completion of the work did the sages say that the owner of the field waives ten per hundred. Therefore, since there are more and he is forced to plant another in its place, if so, he is still engaged in his work and is obligated to uproot all of them [Tosafot Bava Batra 95a]. And all this is when they did not specify or there is no known custom in that place, but if they specified or there is a known custom there, they shall act according to their condition or according to their custom. And so it is stated in the Tosefta of Bava Metzia [chapter 9]: One who receives a field from his fellow to plant, in a place where they are accustomed to plant at four by four, or five by five, or six by six, or seven by seven, they do not deviate from the custom of the province.

The Rambam, of blessed memory, wrote in the eighth chapter of Laws of Hiring: One who receives a field from his fellow to plant, the owner of the field accepts upon himself ten barren trees per seah. Thus far his words. And it appears that such was his version of the text in the Shas. Yet the matters are astonishing, for in the entire Shas it is proven that in a beit seah there are only ten saplings. And it must be said that their way was indeed to plant many saplings per beit seah; however, even when there are only ten saplings it is called a "field of trees." Therefore, with many saplings, he accepts ten barren trees per seah, and sometimes when they are destroyed and only ten remain per beit seah, it is also called a "field of trees." And there is a proof for this from the Yerushalmi [Bava Metzia chapter 9, halacha 2, see there].

A planter of trees who ruined his work and caused a loss, he is removed. And some say that even without a warning he is removed, as was written in siman 306. And if he planted and in some of them he improved and in some of them he caused a loss, and nevertheless there is still an improvement in the total, one sees what the custom is for the planter to take from the improvement, and one deducts from his portion according to the amount that he caused a loss, and he takes the remainder and is removed [Tur]. And even if he stipulated upon himself that he would take nothing from them if he caused a loss, even so he takes, for it is an asmachta, as any "if" is an asmachta as was written in siman 207, and one only deducts from him what he caused a loss.

A planter who wishes to withdraw—if the custom is that every year the field owner takes half and the planter half, and a sharecropper who enters a planted field takes a third, and the planter wishes to withdraw, it is necessary to see that the field owner does not lose. How so? If there is an improvement of twelve dinars, the field owner takes half of it, and from the second half a sharecropper takes four, which are a third, and the planter takes two dinars, so that there remains for the field owner his half in its entirety, for the field owner did not remove him, but he removed himself of his own will. However, the planter cannot say, "Let us divide the vineyard and I will take a quarter and do with it what I wish, and there will remain for you three parts—a third for the sharecropper and for you a half," because all the parts are liened to one another. And even if he does not wish to withdraw but only to place a sharecropper under his supervision, it is not within his power if the field owner does not agree to this, because he can say, "It is not my will to have a multitude of workers, for I fear lest they rely on one another and cause damage" [Nimukei Yosef]. And we have learned from this that one who hires a worker, the worker does not have the power to hire workers under him.

Our teacher, the Rema, wrote: However, he cannot withdraw without the permission of the owner of the field. Thus far his words. And his intention is not that he cannot withdraw at all, for he certainly can withdraw when there is no loss to the owner of the field, as has been written. Furthermore, a worker may retract even in the middle of the day, and a kablan likewise has the same law as a worker, as has been written in siman 320, section 3. Rather, his intention is that if he wishes not to inform the owner of the field at all, and of his own accord establish another aris in his place according to the calculation that was explained so that no loss will reach the owner of the field, he should not do so. And even though there is no reason here of "an increase of workers," for only the aris alone will perform the work, nevertheless the owner of the field can say: It is not my will that you choose an aris for me; if it is your will to withdraw, I cannot hinder you, but I will choose an aris myself, and it is not my will to rely upon you. [And the difficulty of the Shach is answered].

Any sharecropper who takes half of the produce similarly takes half of the vines that have grown old. However, if a river washed them away or the wind uprooted them, he has only a sixth in them, which is a quarter of what remains for the owner of the field. The reason is because every tree is destined to grow old, and from the beginning he entered the arrangement on this condition, to divide the wood when they grow old, just as he divides the vine-trimmings every year, as I wrote in siman 327. But washing away and uprooting is not common, and he did not enter the arrangement for this; therefore, he may only take in a manner that the owner of the field does not lose, and he will also need to give to the sharecropper, and therefore he has only a sixth according to the calculation that has been explained [Sma]:

If there is a contradiction between the owner of the field and the aris, where the aris claims that he stipulated with him to take half and the owner of the field claims that he only stipulated to give him a third, if there is no fixed custom there, they act according to what the owner of the field says, for the land remains in the possession of its owner, and he also has a migo, for if he wanted he could have said "I hired him by the day and he is my hired worker" [Gemara], and the owner of the field takes a shevuat hesset and the aris only takes a third. However, in a place where there is a custom that the aris takes half, he must give him half, for in a place of custom, neither his possession nor his migo avails the owner of the field, as custom is like witnesses. And it appears to me that he does not even have the ability to make the aris swear, since the custom assists him, and even seizing does not help against the custom [and see what I wrote in siman 82 in several places].

It was taught in the Tosefta [Bava Metzia, chapter 9]: One who receives a field from his fellow to plant, until when is he obligated to care for the saplings? Until they take hold. Thus far his words. And its explanation is until the fourth year, when they emerge from orlah. And it appears to me that this is not so according to the halacha, for in the first chapter of Shevi'it, Rava holds a sapling is according to its name, which is a year old, and Rabbi Elazar ben Azariah holds until they take hold, and the halacha is like Rava. And in a place where there is a custom, they act according to their custom.