Torah Community Connections

Week 106 - Friday - 7 December 2001

BAVA BATRA: CHAPTER 4: MISHNAH 1

One who sells a house has not sold the annex, and even though it opens into it, and not the room that is inside it, and not the roof if it has a railing that is ten tefahim high. R. Yehudah says: If it has the shape of a door, even if it is not ten tefahim high - it is not sold.

Kehati

This chapter discusses what is included and what is not included when specific items are sold.

One who sells a house - If one sells a house without specifying what is included in the sale, he has not sold the annex - that surrounds the house (Rambam), and even though it opens into it - Even if the annex opens out into the house, it is not included in the sale. This rule only applies if the width of the annex is at least four amot in which case it is considered to be a separate area; if, however, it is less than four amot wide, it is included in the sale, as it is considered part of the house (Gemara). The Gemara discusses exactly what the term "annex" refers to. One opinion is that this refers to an upper story accessible through a type of skylight, which is used for storage and not for living purposes; another opinion is that it refers to a room around the wall of a house on the outside, formed by some by hollowing out the wall to form the room. The latter opinion is reflected in Rambam's interpretation of an "annex" given earlier.

Others explain the Talmudic argument in a different fashion (see Rashbam; Shitah Mekubetzet), and not the room that is inside it - a room behind the house used for storage purposes or as a closet; and even if this opens into the house, it is not included in the sale, the reason being that a "house" normally refers to living quarters and not storage facilities. There are those who hold that the law governing such a storage room is different from that governing an annex, for in the case of the former even if it is less than four amot wide it is not included in the sale of the house (Rambam); while others hold that the law regarding the width governs both instances, and if the storage room is less than four amot wide, it is included in the sale (Tur, Hoshen Mishpat 214); and not the roof if it has a railing that is ten tefahim high - provided that the roof is at least four amot wide (Rambam), for in such a case it is considered to be a separate area in its own right and not merely an adjunct of the house.

R. Yehudah says: If it - If the entrance to the roof has the shape of a door, even if it is not ten tefahim high - even if the railing is less than this height, it is not sold - The roof is not sold with the house. The halakhah does not follow R. Yehudah.

BAVA BATRA: CHAPTER 4: MISHNAH 2

Not the cistern nor the dut, even if he wrote for him "its depth and height." And he must buy for himself a right of way; these are the words of R. Akiva, but the Sages say, He need not buy for himself a right of way. And R. Akiva agrees in the case where he said to him: "except for these," that he need not buy for himself a right of way. If he sold them to another, R. Akiva says, He need not buy for himself a right of way; but the Sages say: he must buy for himself a right of way.

And he - the seller, must buy - from the buyer - for himself a right of way - so as to be able to gain access to his cistern or cellar-like well which he has reserved for himself, these are the words of R. Akiva - who holds that when a person sells anything he is generous in his sale, including in it the right of way, so that he would now have no access to the cistern or cellar-like well.

But the Sages say: He need not by for himself a right of way - to give him access to his cistern or cellar-like well, for they hold that a person who sells property is grudging, and when selling the house he reserves for himself the right of way to his cistern or well. And R. Akiva agrees in the case where he said to him - where the seller said to the buyer; except for these - except for the cistern or well, i.e., he specified clearly that these are not included in the sale, that he need not buy himself a right of way - as a cistern or well are in any event not included in the sale of a house, the inclusion of the otherwise superfluous condition "except for these" must be meant to include the seller's reserving for himself the right of way to them.

If he sold them to another - If a person sold his cistern or well to another but kept his house for himself, R. Akiva says: Re need not buy for himself right of way - The buyer need not pay for a right of way to the cistern or well, for a seller is customarily generous, and when he sells these items he automatically includes the right of way in the sale; but the Sages say: he must buy for himself a right of way - For they hold that a seller is customarily grudging, as noted above. The halakhah follows R. Akiva.

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