The Mishnah (3:10) discussed the status of a tree planted on the border of two halachic domains. In some instances the location of the entire tree was determined by the tree’s trunk while in other cases the branches determine the tree’s location. According to the basic understanding of the Mishnah, for ma’asrot and ma’aser sheni the branches determine whether the tree is considered as being located in a chatzer or in Yerushalaim. Similarly, if the branches of the tree are inside the tchum of an ir miklat, the accidental murderer can find refuge in the tree. However, when determining if a tree is growing in (obligating the separation of ma’asrot) or in a walled city, the trunk determines the tree’s location.
The Gemarah (Makkot 12a) discusses this issue in more detail referring to the cases of ma’aser sheni and arei miklat specifically. The Gemarah quickly establishes that our Mishnah represents the opinion of R’ Yehudah. The Chachamim however rule, by ma’aser sheni that the tree can be divided and the legal status of each part is determined by its physical location. The opinion of R’ Yehudah however, was analysed further.
The Gemarah concludes with the opinion of Rav Ashi, who explains that we do not determine the location by the branches alone, but rather that we “also” consider the branches. The Rishonim differ in their understanding of Rav Ashi’s explanation. It is this discussion that sheds some light on the differences in our Mishnah’s rulings.
Rashi explains that this statement refers to the case of arei miklat and we are consequently ruling stringently. In other words, as long as any part of the tree is located in the city, the murderer may find refuge. With respect to ma’aser sheni, Rashi maintains that the Gemarah returns to an earlier assumption, that the branches add extra stringencies. In other words if the branches are located outside Yerushalaim, none of its ma’aser sheni can be eaten until they are brought inside. Similarly, if the branches are located in Yerushalaim, none of the ma’aser sheni can be redeemed with money. Interestingly Rashi appears to maintain that ordinarily, the tree’s location is determined by its trunk. Arei miklat and ma’aser sheni are exceptional cases resulting from added stringencies.
The Ramban however states that Rav Ashi means that the trunk’s status is also determined by the branches in a stringent manner. In other words, whether the trunk or branches are located inside the city, the trunk provides refuge. Yet if the branches are outside, they do not provide refuge. This appears to maintain an earlier argument, that the status of trees by arei miklat is unique as the law is connected to the “dwellings” of the city. Consequently, since the branches are more suitable for “dwelling” they bear more halachic significance.
Finally the Mishnah Achronah explains the difference in our Mishnah in another way. By trumot and ma’asrot and walled cities we are judging the branches or the fruit. Since they draw sustenance from the roots, the roots or truck determine the location. By ma’aser sheni and arei miklat, we are interested in the person or fruit under the branches, therefore the branches can be considered independently (following the opinion of the Chachamim).
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