Babylonian Talmud: Tractate Baba Bathra

Folio 64a

Now if you assume that the space below and above is transferred automatically, what difference does it make if the parapet is ten handbreadths high?¹  — Since the parapet is ten handbreadths high the roof is reckoned as a separate structure.²

Rabina said to R. Ashi: Come and hear:³  Resh Lakish said: This shows that if a man sells an apartment to another with the stipulation that the top layer still belongs to him, the top layer does still belong to him; and we asked what was the purpose of the new rule laid down by Resh Lakish, and R. Zebid said: [In order to tell us] that if the vendor desires to let out projecting spars from the roof he may do so, and R. Papa said: [In order to tell us] that if he desires to build an upper chamber over the apartment he may do so. Now if you assume that the top layer is not transferred automatically, what does he gain by his stipulation?⁴  — What he gains by the stipulation is the right to rebuild it if it falls in.⁵

MISHNAH. [THE VENDOR OF A HOUSE DOES NOT SELL THEREWITH] A WELL OR A CISTERN,⁶  EVEN THOUGH HE INSERTS [IN THE DEED THE WORDS] 'INCLUDING THE DEPTH AND THE HEIGHT'.⁷  HE MUST, HOWEVER, BUY HIMSELF, [IF REQUIRED], THE RIGHT OF WAY [TO THE WELL OR CISTERN]. THIS IS THE RULING OF R. AKIBA, THE SAGES, HOWEVER, SAY THAT HE NEED NOT BUY THE RIGHT OF WAY. R. AKIBA [ON HIS SIDE] AGREES THAT IF THE VENDOR INSERTS [THE WORDS] EXCEPT THESE',⁸  HE NEED NOT BUY HIMSELF A RIGHT OF WAY. IF THE OWNER OF THE HOUSE SELLS THESE TO ANOTHER R. AKIBA SAYS THAT THE PURCHASER NEED NOT BUY A RIGHT OF WAY TO THEM, BUT THE SAGES SAY THAT HE MUST BUY IT.

GEMARA. Rabina⁹  as he sat [and studied this section] asked: Is not WELL¹⁰  identical with CISTERN?¹¹  Said Raba Tosfa'ah to Rabina: Come and hear: It has been taught: Both 'well' and 'cistern' are excavations in the soil, only a 'well' is merely dug out,¹²  whereas a 'cistern' is faced with stone.¹³  R. Ashi [also] as he sat [and studied this section] asked: Is not WELL identical with CISTERN? Said Mar Kashisha the son of R. Hisda to R. Ashi: Come and hear: It was been taught: Both 'well' and 'cistern' are excavations in the soil, only a 'well' is merely dug out, whereas a 'cistern' is faced with stone.

HE MUST BUY HIMSELF THE RIGHT OF WAY. THIS IS THE RULING OF R. AKIBA. THE SAGES, HOWEVER, SAY THAT HE NEED NOT. [We may assume,] may we not, that the point at issue between them is this,

1. That is to say, why should a roof with a parapet be different from a roof without a parapet (which is sold with the house), unless for the fact that the purchaser does not acquire the height automatically with the house. So Rashi. V, however Tosaf., s.v. htu'.
2. And therefore is not sold automatically with the house.
3. An argument against R. Dimi, from the ruling of R. Papa.
4. Since even without this the vendor would still retain possession of the roof.
5. This right not being conveyed by the bare transfer, which relates to 'this' layer only. Hence if he desires to transfer the roof completely, he must insert the words 'depth and height'.
6. The difference between these terms is explained in the Gemara.
7. I.e., the space below and above.
8. Which, strictly speaking, are superfluous, as the well and cistern are not automatically transferred with the house.
9. [Rabina II b. Huna, nephew of Rabina I, v. Kaplan, J., Redaction of the Babylonian Talmud, 144.]
10. [H]
11. [H]
12. Of hard soil which does not fall in.
13. Because the soil is soft.

that in the view of R. Akiba the vendor interprets the terms of sale liberally¹  and in the view of the Rabbis²  he interprets them strictly?³  And further that, wherever we find it stated that 'R. Akiba decides according to his usual maxim that the vendor interprets the terms of sale liberally,'⁴  it is in the strength of this passage [that we assign this maxim to him]? — Is this assumption justified? perhaps [the reason for their dispute is this]; R. Akiba holds that a man does not like others to walk over ground which he has paid for, and the Rabbis hold that a man does not care to receive money on condition that he has to fly through the air [to get to where he wants].⁵  Can we then [base this assumption] on the next clause: IF HE SELLS THESE TO ANOTHER, R. AKIBA SAYS THAT THE PURCHASER NEED NOT BUY A RIGHT OF WAY TO THEM, BUT THE SAGES SAY THAT HE MUST BUY IT?⁶  — No, for perhaps the reason of their difference is this, that according to R. Akiba's view we have to consult the wishes of the purchaser, and according to the view of the Rabbis we have to consult the wishes of the vendor.⁷

Can we [base it] on this: '[The vendor does not sell with the field] either a pit or a wine-press or a dovecote, whether they are In use or not in use,⁸  and he must buy a right of way [to them]. This is the ruling of R. Akiba, but the Sages say that he need not buy a right of way [to them]' — 9 Now why¹⁰  should it repeat here [the rulings of R. Akiba and the Sages]? Surely it must be to show us that [in general] R. Akiba holds that the vendor interprets the terms of sale liberally and the Rabbis that he interprets them strictly?¹¹  — No. Perhaps the Mishnah [desires to] tell us by this that [the difference between R. Akiba and the Sages is as stated above] both in regard to a house and a field, both being necessary. For if it had stated [the difference only] in the case of a house, [I might have thought that there R. Akiba says that the vendor has to buy a right of way] because the purchaser desires privacy,¹²  but in the case of a field [where this reason does not apply] I might say he need not. And if the difference had been stated only in regard to a field, I might have thought that there [R. Akiba says that the vendor has to buy a right of way] because [the purchaser objects to his land being] trodden down,¹³  but in the case of a house [where this reason does not apply I might say] he need not. May we then [base the assumption] on the succeeding clause: 'If he sells them [the pit etc. in a field] to another, R. Akiba says that the purchaser does not need to buy a right of way, while the Sages say that he must.' Now why is [their difference stated] again? It is exactly the same here as in the previous case.¹⁴  We must therefore say that this shows that in the view of R. Akiba the vendor interprets the terms of sale liberally, and in the view of the Rabbis he interprets them strictly.¹⁵

It has been stated: R. Huna said in the name of Rab:

1. Lit., 'sells with a bounteous eye', and therefore reserves to himself nothing.
2. I.e., the Sages.
3. Lit., 'sells with an evil eye', and therefore reserves to himself a right of way.
4. V. supra 37a; infra 71a.
5. But in the case of trees and other things to which these reasons do not apply, we cannot assume that these are the reasons of R. Akiba and the Rabbis.
6. Here the reasons given above do not apply.
7. That is to say, we may suppose R. Akiba to hold that in this case the purchaser would not give his money if he had to fly through the air, and the Rabbis to hold that the seller would not take money if his ground is to be walked over; but we cannot infer anything about a 'liberal' or 'illiberal' spirit.
8. Lit., 'desolate or inhabited'.
9. Infra 71a.
10. If the reasons are as given above, because of the objections to treading or flying.
11. As otherwise the repetition of the rule would be entirely superfluous.
12. Hence his objection to treading.
13. And so rendered less productive.
14. Viz., where these things are bought and sold with a house.
15. As otherwise the statement would be entirely superfluous.