בבא בתרא סד

בבא בתרא סד

וְאִי סָלְקָא דַּעְתָּךְ בִּסְתָמָא קָנֵי עוּמְקָא וְרוּמָא, כִּי גָּבוֹהַּ עֲשָׂרָה טְפָחִים מַאי הָוֵי? כֵּיוָן דְּגָבוֹהַּ עֲשָׂרָה טְפָחִים – חֲשִׁיב.

And if it enters your mind to say that when a house is sold without specification, the buyer acquires the depth and the height of the house, then even when it has a parapet ten handbreadths high, what of it? Why shouldn’t the buyer acquire the roof? The Gemara answers: Since the parapet is ten handbreadths high, the roof is significant in its own right, and therefore, unless it is specifically included in the sale, the buyer does not acquire such a roof along with the house.

אֲמַר לֵיהּ רָבִינָא לְרַב אָשֵׁי, תָּא שְׁמַע: דְּאָמַר רֵישׁ לָקִישׁ, זֹאת אוֹמֶרֶת: הַמּוֹכֵר בַּיִת לַחֲבֵירוֹ, וְאָמַר לוֹ: ״עַל מְנָת שֶׁדְּיוֹטָא הָעֶלְיוֹנָה שֶׁלִּי״ – דְּיוֹטָא הָעֶלְיוֹנָה שֶׁלּוֹ. וְאָמְרִינַן, לְמַאי הִלְכְתָא? רַב זְבִיד אָמַר: שֶׁאִם רָצָה לְהוֹצִיא בָּהּ זִיזִין – מוֹצִיא. רַב פָּפָּא אָמַר: שֶׁאִם רָצָה לִבְנוֹת עֲלִיָּיה עַל גַּבָּהּ – בּוֹנֶה.

Ravina said to Rav Ashi: Come and hear another proof, as Reish Lakish says: That is to say that with regard to one who sells a house to another and says to him: I am selling you this house on the condition that the upper story is mine, the upper story is his. And in the Gemara’s examination of Reish Lakish’s statement, we said: With regard to what halakha did Reish Lakish say this? In any case the upper story is his, as when he sold the house it was only the lower story that he sold to the buyer. Rav Zevid says: He said this to teach the halakha that if the seller wishes to extend from the upper story projections over the courtyard, which was included in the sale, he may extend them. Rav Pappa says: He said this to teach the halakha that if this upper story collapses and the seller wishes to build an upper story on top of it to replace it, he may build it.

וְאִי סָלְקָא דַּעְתָּךְ: בִּסְתָמָא לָא קָנֵי, לְמָה לִי ״עַל מְנָת״? אַהֲנִי לֵיהּ ״עַל מְנָת״ – דְּאִי נָפֵיל, הָדַר בָּנֵי לָהּ.

And if it enters your mind to say that when a house is sold without specification, the buyer does not acquire the depth and the height of a house, Rav Pappa’s statement is puzzling. As why do I need the seller to stipulate that he is selling the house on the condition that the upper story is his when in any event the space above the house remains in the seller’s possession? The Gemara answers: Stipulating that he is selling the house on the condition that the upper story is his benefits him in that if the upper story collapses, he may rebuild it. Without this stipulation the seller could not rebuild it, even if the sale did not include the depth and the height of the house.

מַתְנִי׳ לֹא אֶת הַבּוֹר וְלֹא אֶת הַדּוּת – אַף עַל פִּי שֶׁכָּתַב לוֹ עוּמְקָא וְרוּמָא. וְצָרִיךְ לִיקַּח לוֹ דֶּרֶךְ, דִּבְרֵי רַבִּי עֲקִיבָא. וַחֲכָמִים אוֹמְרִים: אֵינוֹ צָרִיךְ לִיקַּח לוֹ דֶּרֶךְ.

MISHNA: One who sells a house without specification has sold neither the pit nor the cistern [dut], even if he writes for the buyer in the bill of sale that he is selling him the depth and the height of the house, as anything that is not part of the house, like pits and cisterns, must be explicitly mentioned in the contract or else they remain in the seller’s possession. And therefore the seller must purchase for himself a path through the buyer’s domain to reach whatever remains his, because he has sold the area of the house along with the house itself, and he no longer has permission to walk there. This is the statement of Rabbi Akiva. And the Rabbis say: The seller need not purchase for himself a path through the buyer’s domain, as this is certainly included in what he has withheld for himself from the sale.

וּמוֹדֶה רַבִּי עֲקִיבָא בִּזְמַן שֶׁאָמַר לוֹ ״חוּץ מֵאֵלּוּ״, שֶׁאֵין צָרִיךְ לִיקַּח דֶּרֶךְ.

And Rabbi Akiva concedes that when the seller says to the buyer in the bill of sale: I am selling you this house apart from the pit and the cistern, he need not purchase for himself a path through the buyer’s domain. Since the seller unnecessarily emphasized that the pit and the cistern are not included in the sale, he presumably intended to reserve for himself the right of access to them.

מְכָרָן לְאַחֵר – רַבִּי עֲקִיבָא אוֹמֵר: אֵינוֹ צָרִיךְ לִיקַּח לוֹ דֶּרֶךְ, וַחֲכָמִים אוֹמְרִים: צָרִיךְ לִיקַּח לוֹ דֶּרֶךְ.

If the seller kept the house, but sold the pit and the cistern to another, Rabbi Akiva says: The buyer need not purchase for himself a path through the seller’s domain to reach what he has bought. But the Rabbis say: He must purchase for himself a path through the seller’s domain.

גְּמָ׳ יְתֵיב רָבִינָא וְקָא קַשְׁיָא לֵיהּ: הַיְינוּ בּוֹר – הַיְינוּ דּוּת! אֲמַר לֵיהּ רָבָא תּוֹסְפָאָה לְרָבִינָא: תָּא שְׁמַע, דְּתַנְיָא: אֶחָד הַבּוֹר וְאֶחָד הַדּוּת – בְּקַרְקַע, אֶלָּא שֶׁהַבּוֹר בַּחֲפִירָה וְהַדּוּת בְּבִנְיָן. יָתֵיב רַב אָשֵׁי וְקָא קַשְׁיָא לֵיהּ: הַיְינוּ בּוֹר – הַיְינוּ דּוּת! אֲמַר לֵיהּ מָר קַשִּׁישָׁא בְּרֵיהּ דְּרַב חִסְדָּא לְרַב אָשֵׁי: תָּא שְׁמַע, דְּתַנְיָא: אֶחָד הַבּוֹר וְאֶחָד הַדּוּת – בַּקַּרְקַע, אֶלָּא שֶׁהַבּוֹר בַּחֲפִירָה וְהַדּוּת בְּבִנְיָן.

GEMARA: It is related that Ravina once sat and examined the matter and posed a difficulty: A pit is the same as a cistern. Why, then, was it necessary to mention both of them? Rava Tosfa’a said to Ravina: Come and hear a solution to this question, as it is taught in a baraita: Both a pit and a cistern are dug out in the ground; the difference is only that a pit is constructed through digging alone, while a cistern is subsequently finished on the inside by building masonry walls. It is similarly related that Rav Ashi once sat and posed a difficulty: A pit is the same as a cistern. Mar Kashisha, son of Rav Ḥisda, said to Rav Ashi: Come and hear a solution to this question, as it is taught in a baraita: Both a pit and a cistern are dug in the ground, the difference is only that a pit is constructed through digging alone, while a cistern is subsequently finished on the inside by building masonry walls.

וְצָרִיךְ לִיקַּח לוֹ דֶּרֶךְ, דִּבְרֵי רַבִּי עֲקִיבָא. וַחֲכָמִים אוֹמְרִים: אֵינוֹ צָרִיךְ וְכוּ׳. מַאי, לָאו בְּהָא קָא מִפַּלְגִי –

§ The mishna teaches: And the seller must purchase for himself a path through the buyer’s domain; this is the statement of Rabbi Akiva. And the Rabbis say: The seller need not purchase such a path. What, is it not about this issue, which will immediately be explained, that Rabbi Akiva and the Rabbis disagree?

דְּרַבִּי עֲקִיבָא סָבַר: מוֹכֵר בְּעַיִן יָפָה מוֹכֵר, וְרַבָּנַן סָבְרִי: מוֹכֵר בְּעַיִן רָעָה מוֹכֵר; וּדְקָאָמַר נָמֵי בְּעָלְמָא ״רַבִּי עֲקִיבָא לְטַעְמֵיהּ, דְּאָמַר מוֹכֵר בְּעַיִן יָפָה מוֹכֵר״ – מֵהָכָא.

As Rabbi Akiva holds that one who sells, sells generously, so that whatever is not explicitly excluded from the sale is assumed to be sold, while the Rabbis hold that one who sells, sells sparingly, so that whatever is not explicitly included in the sale is assumed to be unsold. And perhaps that which is also stated generally: Rabbi Akiva conforms to his standard line of reasoning, as he says that one who sells, sells generously, is derived from here.

מִמַּאי? דִּלְמָא רַבִּי עֲקִיבָא סָבַר: אֵין אָדָם רוֹצֶה שֶׁיִּתֵּן מְעוֹתָיו וְיִדְרְסוּהוּ אֲחֵרִים, וְרַבָּנַן סָבְרִי: אֵין אָדָם רוֹצֶה שֶׁיִּטּוֹל מָעוֹת וְיִפְרַח בָּאֲוִיר!

The Gemara rejects this opinion and asks: From where do you arrive at such a conclusion? Perhaps Rabbi Akiva and the Rabbis do not disagree whether, in principle, a person who sells, sells generously or sparingly, but rather their disagreement is limited to this specific case. As Rabbi Akiva holds that a person does not want to spend his money on the purchase of a house and then have others tread upon his property, and therefore he says that the seller must purchase for himself a path through the buyer’s domain to reach his pit. And the Rabbis hold that a person does not want to receive money for the sale of his house and then have to fly through the air in order to reach his pit, and therefore they say that the seller presumably withheld for himself a path to his pit.

וְאֶלָּא מִסֵּיפָא – מְכָרָן לְאַחֵר, רַבִּי עֲקִיבָא אוֹמֵר: אֵינוֹ צָרִיךְ לִיקַּח לוֹ דֶּרֶךְ, וַחֲכָמִים אוֹמְרִים: צָרִיךְ.

Rather, the proof is from the last clause of the mishna, which states: If the seller kept the house but sold the pit and the cistern to another, Rabbi Akiva says: The buyer need not purchase for himself a path through the seller’s domain. But the Rabbis say: He must purchase for himself a path through the seller’s domain. The tanna’im seem to disagree as to whether a person who sells, sells generously or sparingly.

דִּלְמָא בְּהַאי פְּלִיגִי – דְּרַבִּי עֲקִיבָא סָבַר: בָּתַר דַּעְתָּא דְלוֹקֵחַ אָזְלִינַן; וְרַבָּנַן סָבְרִי: בָּתַר דַּעְתָּא דְמוֹכֵר אָזְלִינַן!

The Gemara rejects this proof as well: Perhaps they disagree about the following: Rabbi Akiva holds that we follow the intention of the buyer, as we assume that he would not have bought the pit if he would have to fly through the air to get there. And the Rabbis hold that we follow the intention of the seller, as presumably he would not have sold the pit if the buyer had the right to tread upon the seller’s property to reach it.

אֶלָּא מֵהָא – לָא אֶת הַבּוֹר וְלֹא אֶת הַגַּת וְלֹא אֶת הַשּׁוֹבָךְ, בֵּין חֲרֵבִין בֵּין יְשׁוּבִין; וְצָרִיךְ לִיקַּח לוֹ דֶּרֶךְ, דִּבְרֵי רַבִּי עֲקִיבָא. וַחֲכָמִים אוֹמְרִים: אֵינוֹ צָרִיךְ.

Rather, the proof that these tanna’im disagree whether one who sells, sells generously or sparingly is from this mishna (71a), which teaches: One who sells a field, even if he states that he is selling everything in it to the buyer, has sold neither the cistern, nor the winepress, nor the dovecote, whether it is abandoned or utilized, as these items are not part of the field itself. And the seller must purchase for himself a path through the buyer’s domain to reach whatever remains his. This is the statement of Rabbi Akiva. And the Rabbis say: The seller need not purchase a path through the buyer’s domain.

הָא תּוּ לְמָה לִי? אֶלָּא לָאו הָא קָא מַשְׁמַע לַן – דְּרַבִּי עֲקִיבָא סָבַר: מוֹכֵר בְּעַיִן יָפָה מוֹכֵר, וְרַבָּנַן סָבְרִי: מוֹכֵר בְּעַיִן רָעָה מוֹכֵר?

The Gemara explains the proof: Why do I need this ruling as well, seeing that this case involving the sale of a field appears to be identical to that involving the sale of a house? Rather, is it not teaching us that Rabbi Akiva holds that one who sells, sells generously, and therefore the seller must purchase for himself a path to his property, while the Rabbis hold that one who sells, sells sparingly, and therefore the purchase of such a path is not necessary?

וְדִלְמָא אַשְׁמְעִינַן בַּיִת, וְקָא מַשְׁמַע לַן שָׂדֶה; וּצְרִיכָא, דְּאִי אַשְׁמְעִינַן בַּיִת – מִשּׁוּם דְּבָעֵי צְנִיעוּתָא, אֲבָל שָׂדֶה – אֵימָא לָא;

The Gemara rejects this opinion: Perhaps the first mishna taught us this dispute with regard to a house, and the later mishna teaches us this dispute with regard to a field. And while this may seem redundant, both rulings are necessary, as had the mishna taught us this halakha only with regard to a house, I would have said that the buyer is particular about people passing through his house, because he desires privacy there. And it is for this reason that Rabbi Akiva says that in the absence of an explicit stipulation, the seller must purchase for himself a path to the pit. But in the case of a field, which is exposed to all, say that the buyer is not concerned about privacy.

וְאִי אַשְׁמְעִינַן שָׂדֶה – מִשּׁוּם דְּקָשֵׁי לֵיהּ דַּוְושָׁא; אֲבָל בַּיִת – אֵימָא לָא.

And, conversely, had the mishna taught us this halakha only with regard to a field, I would have said that the buyer is particular about people passing through his field, because treading upon the field is detrimental to it. And it is for this reason that Rabbi Akiva says that the seller must purchase for himself a path to the pit. But in the case of a house, which is not adversely affected by treading through it, say that the buyer is not opposed to the seller passing through.

אֶלָּא מִסֵּיפָא – מְכָרָן לְאַחֵר, רַבִּי עֲקִיבָא אוֹמֵר: אֵינוֹ צָרִיךְ לִיקַּח לוֹ דֶּרֶךְ, וַחֲכָמִים אוֹמְרִים: צָרִיךְ.

Rather, the proof that Rabbi Akiva and the Rabbis disagree whether one who sells, sells generously or sparingly is from the latter clause of that mishna (71a), which teaches: But if the seller kept the field but sold the cistern and winepress to another person, Rabbi Akiva says: The buyer need not purchase for himself a path through the seller’s domain to reach what he has bought, since a seller sells generously. But the Rabbis say: He must purchase for himself a path through the seller’s domain.

הָא תּוּ לְמָה לִי? הַיְינוּ הָךְ! אֶלָּא לָאו הָא קָא מַשְׁמַע לַן – דְּרַבִּי עֲקִיבָא סָבַר: מוֹכֵר בְּעַיִן יָפָה מוֹכֵר, וְרַבָּנַן סָבְרִי: מוֹכֵר בְּעַיִן רָעָה מוֹכֵר? שְׁמַע מִינַּהּ.

The Gemara explains the proof: Why do I also need this, seeing as this case involving the sale of a pit or a winepress in a field is identical to that involving the sale of a pit or a cistern in a house? Rather, is it not teaching us that Rabbi Akiva holds that one who sells, sells generously, while the Rabbis hold that one who sells, sells sparingly? The Gemara affirms: Conclude from the latter clauses of these mishnayot that this is so.

אִיתְּמַר, רַב הוּנָא אָמַר רַב:

It was stated that the amora’im disagree about how the halakha should be decided with regard to this issue. Rav Huna says that Rav says: