Babylonian Talmud: Tractate Baba Bathra

Folio 63a

This, however, is not so, because R. Yemar b. Shelemiah has said: Abaye has himself explained to me that whether he writes, 'The boundary [of the field] is the field from which half has been cut off,' or 'The boundary [of the field] is the field from which a piece is cut off,' if he adds the words, 'these are its boundaries', [then he sells him] half,¹  and if he does not add the words 'these are its boundaries', [then he sells him] nine kabs.²

We take it for granted that if a man says, Let so-and-so share³  my property, [he is to receive] a half. If he says, Give so-and-so a share in my property, what is to be done?⁴  — Rabina b. Kisi said, Come and hear: it has been taught: If a man says, Give so-and-so a share in a cistern, Symmachus⁵  says that he is to receive not less than a quarter.⁶  [If the man says], Give him a share [in the cistern] for his pail,⁷  he is to receive not less than an eighth. [If he says, Give him a share] for his pot,⁸  he is to receive not less than a twelfth. [If he says, Give him a share] for his drinking cup,⁹  he is to receive not less than a sixteenth.

Our Rabbis taught: If a Levite sells a field to any [ordinary] Israelite¹⁰  with the stipulation that the first tithe¹¹  therefrom is to be given to him,¹²  the first tithe from it must be given to him. If he stipulated that it was to be given to him and to his sons and he then died, it is to be given to his sons. If the stipulation is, 'as long as this field is in your possession,' and he [the purchaser] sells it and then buys it again, the Levite has no claim on him. How can [all] this be, seeing that a man cannot transfer to another possession of something that does not yet exist?¹³  — Since the Levite stipulated that the first tithe should be given to him, he in effect reserved to himself the area of the tithe.¹⁴  Resh Lakish said: This shows that if a man sells an apartment to another with the stipulation that the top layer¹⁵  is still to belong to him, the top layer belongs to him.

1. The superfluous words being meant to place the purchaser in the most favourable position possible.
2. The deed being interpreted in favour of the seller,
3. Heb, yahalok, lit., 'divide'.
4. There being various possibilities, e.g., that he should receive half, or as much as the Beth din think fitting, or an equal portion with the sons of the donor.
5. Who always went on the principle that 'money of which the ownership is in doubt should be divided (between the claimants)'.
6. The share may mean either a half or a mere fraction. Being in doubt, therefore, we strike the balance.
7. I.e., for watering his cattle and not his field, for which at the utmost only half the cistern is required. Hence the gift is at the utmost only half of a half, and we strike the balance between this and a fraction.
8. For purposes of cooking, for which only a third of the cistern is required.
9. For which only a quarter of the cistern is required.
10. I.e., one who is neither priest nor Levite,
11. According to the Rabbinical interpretation of Deut. XIV, 22-29, three tithes had to be taken from agricultural produce, the 'first' which had to be given to the Levite, the 'second' which had to be eaten in Jerusalem, and the 'third' which had to be given (once in three years) to the poor.
12. In preference to any other Levite.
13. Lit., 'has not yet come into the world'. How then could the man who bought the field from the Levite make him the possessor of the tithe before even the seed was sown?
14. Because otherwise the stipulation would be an idle one, and we must suppose that the Levite meant something with it.
15. [H] [G]; apparently this refers to the top layer of the parapet surrounding the roof, and the expression is therefore equivalent to 'a roof with a parapet', or 'a roof chamber'. [So Rashb. R. Gersh. and Yad Ramah define it simply as a low-ceilinged upper storey. V. however Krauss, op. cit. I, 23, and Tosaf. 64a, s.v. [H]].

For what purpose is the new rule laid down by Resh Lakish?¹  — [In order to tell us] that if the vendor desires to let out projecting spars from the roof, he is at liberty to do so.²  R. Papa says: [In order to tell us] that if he desires to build an upper chamber over the apartment, he is at liberty to do so.³  Accepting R. Zebid's view, we understand why Resh Lakish used the expression 'this shows'.⁴  But on the view of R. Papa, why should he have said, 'this shows'?⁵  — This is really a difficulty.

R. Dimi of Nehardea said: If a man sells an apartment to another,⁶  even though he inserts in the deed of sale the words, '[I sell you] the depth and the height',⁷  he must further insert the words, 'Acquire for thyself possession from the depth of the earth to the height of heaven,' because the space below and above is not transferred automatically.⁸  Hence the words 'depth and height' avail to transfer the space below and above, while the words 'from the depth of the earth to the height of heaven' avail to transfer a well, a cistern and cavities.

Shall we say [that the following Mishnah] supports R. Dimi: The vendor does not transfer the well and the cistern even though he inserts the words 'depth and height'?⁹  Now if you should assume that the space below and above is transferred automatically, then the insertion of the words 'depth and height' should avail to transfer well, cistern and cavities [should they not]? — [We suppose the Mishnah to refer to the case] where these words were not inserted.¹⁰  But the Mishnah distinctly says, 'although he inserts the words [depth and height']? — We must explain the Mishnah thus: Even if these words are not actually inserted they are regarded as being inserted for the purpose of transferring the space below and above; and as regards a well and a cistern, if the words 'depth and height' are inserted, these are transferred, but otherwise not.¹¹

Come and hear:¹²  NOR THE ROOF SO LONG AS IT HAS A PARAPET TEN HANDBREADTHS HIGH.

1. We already know this from the Mishnah which says that if a man sells a house, he does not sell with it the roof. V. supra 61a.
2. I.e., even if he parts with the courtyard, he still retains the right to make the same use of the roof as when the courtyard below belonged to him. This right, however, is retained by him only in virtue of his stipulation which otherwise would have been an idle one.
3. This is explained by the commentators to mean that if the parapet (or the upper storey) falls in, he is at liberty to rebuild it. [R. Gershom's explanation that he may build an upper chamber over the diaita, accords, however, better with our text. cf. n. 4.]
4. Because the act of the vendor here in reserving to himself, in virtue of his stipulation, a part of the space over the courtyard is analogous to the act of the Levite in reserving to himself a part of the field.
5. Because there is no special analogy between reserving part of the field which has been sold and reserving the right to rebuild the roof which has not been included in the sale, and if Resh Lakish had meant the latter, he should have stated it independently and not derived it from the former.
6. With the intention of transferring to him at the same time the well or cistern in the courtyard.
7. I.e., all the space below and above.
8. I.e., along with the house itself without specific mention. For the exact significance of 'depth and height' v. infra.
9. Infra 64a.
10. And if they are, they avail to effect the transfer of well and cistern.
11. And we do not require the words, 'from the depth of the earth to the height of heaven'.
12. This is a further argument in support of R. Dimi's view,