Siman 375

One who descends into the field of his fellow without permission, such that the owners did not command him, and planted it: if it was a field that was not intended for planting, if the owner of the field says to him, "Uproot your trees and go," we listen to him. And even if it was intended for planting, he can say this to him. And even if the owners were in the city and knew of this and remained silent, we do not say that he should have protested; rather, since he acted without permission, they can say this to him [as is evident from the Nimukei Yosef, chapter HaShoel]. And so too, when one built buildings upon the field or the ruin of his fellow, the owners can say, "Take your wood and your stones," even if it was standing to be built upon, and even if they were in the city. And there are those who disagree regarding a field intended for planting or building, that he cannot say "take what is yours," and it will be explained in section 11 [ibid. in the name of the Ramban and the Rosh in the name of the Ra'avad].

And specifically when the owners did not reveal their intent after the act that they are pleased with it, but if they revealed their intent that they are pleased with it, such as if they completed the building or guarded it and the like, they cannot say so, and the hand of the one who descended is on the upper, as will be explained [the Rif]. And likewise, if they revealed their intent beforehand that they would give him money, the one who descended cannot say afterward "I am taking my wood," for he built with this understanding and his domain acquired it for him [Nimukei Yosef].

And if this one who descended wants to take what he built or what he planted, and the owners want them to appraise it for him and pay, the sages, of blessed memory, said [Bava Metzia 101b] that in the case of a house, we listen to him and he may take his wood, since there is no loss to the owners in this. However, regarding plantings, we do not listen to him when he wants to uproot them because they have already weakened the ground through their nourishment. And this is specifically when the plantings have already taken root, but when they have not yet taken root, he cannot protest. And so too regarding a house, when he dug in the ground for the making of foundations, we also do not listen to him since he damaged the ground. And it is implied from the language of the Gemara and the poskim that even when the owners want to pay him in excess, they cannot compel him when his desire is to take his own and there is no damage to the owners; and it is not applicable to compel him in this regarding the trait of Sodom, because he can say, "I want my wood and my plantings."

And even in a place where the owner can prevent him from taking them, as has been written, nevertheless, if the owner said to him initially, "Uproot your trees" or "Take your wood and stones and go," even though he later retracts, the one who descended may nonetheless take them. We do not say that it was merely speech, for this is like one who says to his fellow in beit din, "Swear and take," in which case he cannot retract [Nimukei Yosef]. And according to this, it appears that for the opinion that holds there that before the oath he can retract, as has been written in siman 22, here too he can retract. If so, it is difficult regarding our teacher, the Rema, why he stated the matters without qualification [and the Nimukei Yosef follows his own reasoning in the chapter "Zeh Borer"]. Therefore, it appears to me that since our teacher, the Rema, omitted the reason we wrote, it implies that he holds that since by the essential law they are his, only that because they caused some loss he has the power to prevent it, once he said "Take what is yours," it is like a mechila on the loss, and mechila does not require a kinyan. Furthermore, it is implied from his words that we do not require him to say this in beit din; and although in his book Darkei Moshe he wrote that we require him to say it in beit din, it appears that in the Shulchan Aruch he retracted, and all is for the reason we explained [it appears to me].

If both are satisfied post facto that the plantings and the buildings should remain and that he should pay him, how much does he pay? Our sages, of blessed memory, said [Bava Metzia 101a] that if it is a field made for planting, such as an ordinary vineyard, and similarly if the ruin is made to be built upon, we estimate how much a person is willing to give for this field to plant it and this ruin to build it, for his hand is on the upper side. Most of our teachers explained that if the improvement exceeds the expenditure, he gives him the amount of the improvement, and if the expenditure exceeds the improvement, he gives him the expenditure. And there are some of our teachers who hold that he never takes more than the improvement or the expenditure, for this is not logical at all; rather, the intent of our sages, of blessed memory, is according to the higher appraisal that the experts would estimate [Ba'al HaMaor and the students of the Rashba]. This is implied by the opinion of Rav Hai Gaon in Sefer HaMekach. And it is possible to say that they do not disagree in the law, for if the homeowner was in the city and knew and did not protest, he rightly takes as one who descends with permission; but when he was not in the city and did not know at all, it is sufficient that he takes according to the higher appraisal of the experts and not as one who descends with permission. And if it was not made for planting or for building, our sages, of blessed memory, said that we appraise for him and his hand is on the lower side. Most of our teachers explained that if the improvement exceeds the expenditure, he takes his expenditures, and if the expenditure exceeds the improvement, he only takes the amount of the improvement. And there are those who explained that he takes according to the lesser of the appraisal of the experts.

And all this is when he did not reveal his mind that it is pleasing to him; but when he revealed his mind—for example, if after this person planted or built, the owners came and completed the building or guarded the plantings and the like, which shows that his mind is comfortable with what this person did, and all the more so if he says explicitly that it is pleasing to him—one appraises for him and his hand is on the upper edge, even in a field not made to be planted or built upon. And his law is like one who descends with permission, who takes all his expenses, and if the improvement was greater than the expense, he takes the improvement according to all opinions. And there is one who says that revealing one's mind is only effective in a field made to be planted or built upon [see in the Tur and in the Beit Yosef].

It is a simple matter that one who enters into his fellow's field with the permission of the owners or with the permission of the beit din, even if he planted a field that is not intended for planting or built in a ruin that is not intended to be built, we appraise for him and his hand is on the upper; for if the expenditure exceeds the improvement, he takes the expenditure, and if the improvement exceeds, he takes the improvement.

And know that regarding what is written in the Shulchan Aruch in section 4 concerning the law of one who descends with permission, our teacher, the Rema, wrote: that if the owner of the field is himself a sharecropper, his status reverts to being like one whose field is not intended to be planted, except that they appraise how much he would want to give so that he would not need to exert himself. Thus far his words. And I wonder what this has to do with one who descends with permission, and what logic is there to distinguish between whether he was a sharecropper or was not a sharecropper, for behold, he descended with his permission. Furthermore, the source of the law is from the Ran in the name of the Ra'avad in the eighth chapter of Ketubot, and it is explicitly explained there that it refers to one who descends without permission, and so it is implied in his book Darkhei Moshe. Therefore, it appears to me that an error fell into the books, and this belongs to section 3, which deals with one who descends without permission. And regarding this, he says that in any case where there is a distinction between a field intended to be planted and one not intended, and similarly where he revealed his mind that it is pleasing to him, if the owners themselves engage in sharecropping and work themselves, we always consider it only as not intended to be planted. And in this portion of being intended to be planted, we consider for him a small amount for that which he did not exert himself. But that he should pay as one pays to sharecroppers, he does not pay, since he himself is a sharecropper and would not have hired another sharecropper.

A husband in the property of his minor wife has the status of one who descends with permission, and they appraise for him and his hand is on the upper side. This matter is from an enactment of the sages so that her fields should not be lost, as has been written in Even HaEzer siman 88. Similarly, a partner in a field has the status of one who descends with permission since he has a portion in it, as has been written in siman 178. And one who does a favor for his fellow without permission was explained in siman 264. Similarly, one who learns with the son of his fellow without the knowledge of the father, his law was explained in siman 335, see there, and see what I have written in Even HaEzer there, section 22.

Our teacher, the Beit Yosef, wrote in section 6: One who enters his fellow's ruin and builds it without permission, we appraise for him and his hand is at a disadvantage. If the builder says, "I am taking my wood and my stones," we listen to him. If the owner of the land says to him, "Take what you built," we listen to him. Thus far his words. And in section 7 he wrote: Courtyards are fit for building and for adding houses and lofts within them; therefore, one who builds in his fellow's courtyard, he is like one who plants a field that is intended for planting, and we appraise for him how much a person would want to pay for this building to build it, provided that he builds a beneficial building appropriate for that courtyard according to the custom of that place. Thus far his words. And our teacher, the Rema, wrote that the builder cannot say, "I am taking my building." And regarding the ruin in section 6, he wrote that this is specifically if the ruin is not intended for building, but if it is intended for building, or in a place where a ruin is typically standing to be built, its law is like courtyards which will be explained nearby. Thus far his words. It is explicitly clear that he holds that that which the sages of blessed memory said, that the builder can say "I am taking my building" and the owner of the ruin or courtyard can say "take your wood and your stones," this is only when it is not intended to be built; but in one intended to be built, they do not have the power to say so. And I wonder, for the opinion of most poskim is not so. And how is the law of a building different from the law of a field intended for planting, where the owner of the field can say "uproot your trees and go," yet the owner of the trees cannot say so because he diminishes the land? But in a building, which does not diminish, he should be able to say so. And from his own words in section 1 this is proven, for he wrote simply that a vineyard is intended for planting, and he did not provide a gloss on the words of the author in section 2 who wrote that the owner of the field can say to him "uproot your trees," that this is specifically in one not intended for planting.

And it appears to me that our teacher, the Rema, holds that regarding saplings, even though it is a field made for planting, nevertheless we do not have the power to compel the owner of the field because he can say, "My desire is to sow grain and not trees." Therefore, he can say, "Uproot your saplings and go," and the owner of the trees is obligated to uproot them at his own expense [Tur]. And so too in a ruin and in a courtyard where the building is not a necessity according to the standing of the city and according to the standing of the status of the owner of the ruin and the courtyard; and so too when he can make some other use of this ruin and this courtyard and not build it, certainly he can say to him, "Take your wood and your stones at your own expense." And our teacher, the Rema, is dealing with a place where the beit din sees that it is a necessity for the homeowner to build in this place according to his status and the status of the city, and he himself would have built so, and this one who built, built properly in a manner that the owners themselves would not have built better than this—in this, he correctly ruled that the owners cannot say, "Take your wood and your stones," and also the builder cannot say, "I will take my wood and my stones," for his courtyard acquires for him since it is made for building. And a reasoning similar to this was written by the Rosh and the Tur brought it in section 7 [and with this the words of the Sma in subsection 14 are settled, so that they do not contradict what he wrote in subsection 4 and as he wrote in subsection 13, and examine it closely].

The Tur wrote: There was an incident involving Reuven who left the city and had houses there, and Shimon came and dwelt in them, and he saw that the house was dilapidated and leaning toward collapse, and he built and strengthened it and saved it from the danger of falling, and he plastered it and decorated it. And when Reuven arrived, he evicted Shimon from his house because he said that he entered without permission, and he did not want to pay him the expenses of its repair. And the Rosh, of blessed memory, ruled that since it was dilapidated and close to falling, Shimon does not need to leave the house until he pays him all his expenses for what was necessary to repair to save the house from falling. However, regarding what he plastered and decorated, which he did for his own enjoyment, he does not need to pay him. And from this there is proof for what I wrote in section 11, see there. And the general rule of the matter is this: that in any matter a person does for his fellow without the permission of the owner—whether he was in the city and did not protest against him, or whether he was not in the city—the beit din sees if this matter was something the owner was compelled to do, they appraise it for him and his hand is on the upper edge. For granted that he descended without permission, nevertheless he has done him a favor, and why should he lose? But for a matter that is not a necessity to do, or if the owner according to his situation does not have the ability to spend such expenses, he does not need to pay him, and he can say to him: "Take what you have made and go." And so it appears the primary rule for the law. And all this is when the owner did not protest against him beforehand; but if he protested against him and said that he does not want him to build it or repair it, this person who descended has lost in every such case. For that which the sages, of blessed memory, said that for one who descends without permission we appraise for him, this is in an unspecified case, but not when he protested explicitly.

One who descended not with permission and built, and rented it to others and received rent, it is a simple matter that we deduct this from his expenses, even though it is not the way of this owner to rent out his buildings, and even though the owner is satisfied with what this person did; for the former may not conduct business with that which belongs to his fellow [Levush]. And he cannot say that he takes it for his exertion, for within the appraisal we appraise for him his exertion. And he also cannot say that he takes the rent for his money that was in the building for some time, for if so, it would be ribbit. And if the builder himself dwelt in it, if he did not cause any loss, in that he did not cause any damage to the building, one does not need to deduct anything from him for his dwelling. But if he caused loss or damage, even a small thing, he must pay for the dwelling for all that he benefited, as written in siman 363, and he shall deduct this from his expenses.

In every place where we have said that the landowner must give money to the settler who planted or built, if the landowner's hand cannot afford it and he said to the settler who acted without permission, "Appraise for me the land for what it is worth by itself and give me its value," we listen to him. For the sages, of blessed memory, did not say that he must give money to the settler except when he wants the land and does not desire to sell it; but if he desires to sell it, the settler must give him its value. And if the settler's hand also cannot afford it, they appraise everything together and sell to others, and afterwards they appraise the land for what it is worth by itself, and the landowner shall take this, and the settler shall take the remainder [Levush]. And this is a simple matter, for we do not coerce the landowner to sell his land, except that if he wishes, he may say to the settler, "Take what you have made" [it appears to me].

It appears to me that also regarding movable property the law is such, that if Reuven came and repaired Shimon's garment or his vessels, if according to the eyes of the beit din Shimon needs this repair and it is within his ability to repair it, its law is like a house made to be built, and he is obligated to pay him according to the appraisal even though he acted without permission. And if Shimon does not need this repair or it is not within his ability, he does not need to pay him; and on the contrary, he can compel him to purchase it from him, as I have written regarding land. And even though movable property can be stolen, nevertheless, not all of the improvement belongs to him, for he did not intend to steal [and see what I have written in Even HaEzer siman 95, section 16].

Our teacher, the Beit Yosef, wrote: Anyone for whom an assessment is made, whether his hand was on the upper hand or his hand was on the lower hand, he takes nothing until he swears with a sacred object how much he expended. And if he said, "Let the judges come and make an assessment of the expenditure, for it is revealed before their eyes, and let them estimate the wood, the stones, the lime, and the wages of the craftsmen at the lowest of rates," we listen to him and he takes without an oath. Thus far his words. And when he needs to take his expenditures and they are greater than the improvement, such that it is impossible by assessment, he can say, "I will not take my expenditures, but let them assess for me the improvement which is recognizable, and I will take without an oath." And this rule applies in every place where the one who takes must swear and take: if it is a matter that can be known through experts, he can say, "Assess for me, and I do not wish to swear."

Whenever the law is that an appraisal is made for him and he collects, and the owner of the land claimed that he paid him and the one who descended says "I did not collect," the one who descended is believed and swears that he did not collect anything. And even though he comes to extract and the burden of proof is upon him, nevertheless, this is like a clear matter that he did not give to him before the appraisal, and we say to the owner of the field: "How is it possible that you gave to him, for they have not yet appraised for you and you did not know how much you are obligated to give him?" And even if he descended with permission and knew that he must give to him, it is not similar to what was written in siman 157 regarding a partnership building where he is believed to say "I gave" even though there was no appraisal; it is different there, for in a partnership business it is upon both of them to act, whereas with a stranger who descends into his fellow's property, it is not the way of the world that he would pay him without an appraisal [Ktzot HaChoshen]. And there is one who says that workers who have a fixed price per day, even if they descended without permission, nevertheless, if it is known that he sought out workers, he is believed to say that he gave [Netivot HaMishpat]. But after the appraisal, and the beit din said to the owner of the field, "Such and such you must give to him, and give it to him," and he said "I gave," he is believed and shall swear a shevuat hesset that he gave to him, because land stands in the presumptive possession of its owners. Therefore, even in a place where the one who descended was obligated to swear and has not yet sworn, he is believed to say that he gave to him and is exempt with a hesset, like every claimant where the defendant swears a hesset and is exempt. And it is possible that there is no difference between whether the beit din said to him "Go out and give to him" or "You are obligated to give to him," since the obligation is known, and it is not similar to what was written in siman 79 [it appears to me].