Babylonian Talmud: Tractate Baba Bathra

Folio 65a

The halachah follows the ruling of the Sages. R. Jeremiah b. Abba, however, said in the name of Samuel that the halachah follows the ruling of R. Akiba. Said R. Jeremiah b. Abba to R. Huna: Did I not frequently say in the presence of Rab that the halachah follows the ruling of R. Akiba, and he did not say a word to me? Said R. Huna to him: How did you report his ruling? — He said to him: I reported them [with the names] reversed.¹  It is for that reason [said R. Huna] that he did not say anything to you.

Rabina said to R. Ashi: May we say that they [Rab and Samuel here] are in accord with their respective views [as expressed in the following passage]: R. Nahman said in the name of Samuel, If brothers divide an inheritance, neither has a right of way against the other nor the right of 'ladders', nor the right of 'windows', nor the right of 'watercourses', and take good note of these rulings, since they are definite.²  Rab, however, said that they have [these rights].³  [R. Ashi answered:] Both statements are necessary.⁴  For if I had only the latter, I would say that Rab's reason [for allowing the right of way] is because one brother can say to the other, I want to live on this land as my father lived: and in proof that this is a valid plea in the mouth of an heir, the Scripture says, In the place of thy fathers shall be thy sons.⁵  In the other case, however, I might think that Rab agrees with Samuel. If again I had only the former statement, I might think that only in that case did Samuel say [that the vendor interprets the terms of sale liberally], but here he agrees with Rab. Hence both statements are necessary.

R. Nahman said to R. Huna: Does the law follow our⁶  opinion or yours? — He replied: The law follows your view, since you have continual access to the gate of the Exilarch, where the judges are in session.⁷

It has been stated: If there are two apartments one within the other, and both are sold or given away [at the same time to two different persons], they have no right of way against one another.⁸  Still less have they if the outer one is given and the inner one is sold.⁹  If the outer one is sold and the inner one given, [the students] wanted to infer from this that there is no right of way from one to the other,¹⁰  but this is not correct. For have we not learnt:¹¹  'This¹²  applies only to a sale, but if the owner makes a gift, he includes all these things'? This shows that a donor is presumed to make a gift in a liberal spirit.¹³  So here, the donor gives in a liberal spirit.¹⁴

MISHNAH. IF A MAN SELLS A HOUSE, HE [IPSO FACTO] SELLS [WITH IT] THE DOOR, BUT NOT THE KEY;¹⁵  HE SELLS [WITH IT] A MORTAR¹⁶  FIXED [IN THE GROUND] BUT NOT A MOVABLE ONE; HE SELLS [WITH IT] THE CASING OF A HANDMILL BUT NOT THE SIEVE,¹⁷  AND NOT A STOVE OR AN OVEN.¹⁸  IF HE SAYS TO THE PURCHASER, [I SELL] THE HOUSE AND ALL ITS CONTENTS,

1. These, of course, were not the actual words of R. Jeremiah. Perhaps we should read, [H] [so MS.M. v. D. S.], 'he gave him the rulings in the reverse form', making R. Akiba say that the vendor interprets the terms of sale strictly and the Sages that he interprets them liberally.
2. V. supra 7a and notes.
3. Here also we see that according to Rab the terms of the division are interpreted strictly by each party (i.e. to his own advantage), and according to Samuel liberally (i.e. to the other's advantage).
4. Viz., the statements of the dispute between Rab and Samuel both in regard to the purchaser and vendor and in regard to the brothers, and we cannot say that in one case they are merely applying a principle underlying their decision in the other.
5. Ps. XLV, 17.
6. His own and that of Samuel, who was his teacher.
7. R. Nahman was a son-in-law of the Exilarch.
8. I.e., through the outer room to the inner, because both parties are on an exactly equal footing.
9. Because we presume the gift to have been made in a more liberal spirit than the sale.
10. Because presumably the owner does not favour one above the other to this extent.
11. Infra 71a, in connection with the dispute between R. Akiba and the Sages about the right of way.
12. That according to the Rabbis a right of way is not included.
13. Even on the view of the Rabbis, and still more on that of R. Akiba.
14. Even at the expense of the purchaser, and therefore the recipient of the inner room has a right of way through the outer.
15. Lit., 'opener': a bolt which would fit any door, but which usually was left in its socket.
16. For pounding spices etc.
17. Cf. supra p. 103.
18. These too were movable, but the stove was somewhat larger and used for baking bread, V.l. 'he sells (with it) a stove and oven,' these being regarded as fixtures. The principle is therefore that the 'house' includes fixtures but not movable things.

ALL THESE THINGS ARE INCLUDED IN THE SALE.¹

GEMARA. Are we to say that the Mishnah is not in agreement with R. Meir, for if it were according to R. Meir, surely he has laid down that 'if a man sells a vineyard, he [automatically] sells with it the implements of the vineyard'?²  — You may in fact say that it concurs with R. Meir, for there he was speaking of things which are part and parcel of the vineyard,³  but here [the Mishnah speaks of] things which are not part and parcel of the house. But does not the Mishnah mention a key side by side with a door, [as much as to say], Just as a door is part and parcel of a house, so a key is part and parcel of the house⁴  [and yet it is not sold with the house]?⁵  — The more tenable opinion therefore is that the Mishnah does not agree with R. Meir.

Our Rabbis taught: If a man sells a house, he ipso facto sells the door, the cross-bar, and the lock, but not the key; the mortar that has been hollowed [out of stone], but not one that has been fixed; the casing of the handmill but not the sieve; and not the oven, the stove, or the handmill. R. Eliezer, however, says that everything attached to the ground⁶  is in the same category as the ground. If the vendor uses the formula, 'the house and all its contents', all these things are sold with. In either case, however, he does not sell the well, the cistern, or the verandah.

Our Rabbis taught: 'If a man hollows out a pipe and then fixes it, water from it makes a mikweh⁷  unfit for use. If, however, he first fixes it and then hollows it, it does not render the mikweh unfit for use.'⁸  To whom [are we to ascribe this dictum]? For it cannot be either R. Eliezer or the Rabbis! — Which [statement of] R. Eliezer [have you in mind]?⁹  Shall I say, the one about the house?¹⁰  possibly the reason [why he says there that fixtures are in the same category as the ground] is because he holds that the vendor interprets the terms of sale liberally, whereas the Rabbis hold that he interprets them strictly.¹¹  Is it then the statement about the beehive, as we have learnt: 'R. Eliezer says that a beehive¹²  is on the same footing as the soil; it may serve as a surety for a prosbul,¹³

1. Because although movable they more or less belong to the house and are not usually removed from it.
2. E.g., the poles (infra 78b). Hence we should expect R. Meir to include in the house the movable mortar and the key.
3. Lit., 'fixed'. I.e., things which though in themselves movable, are in practice never taken from the vineyard.
4. The key spoken of by the Mishnah must be one which is usually left in the door, as otherwise it would have said, 'The sale includes a key which is left in the door, but not one which is carried about', and we should have understood a fortiori that a door is sold with the house.
5. This shows that according to the Mishnah even things which are part and parcel of the house are not sold with it unless the formula 'it and all its contents' is used.
6. Including, that is, the fixed mortar.
7. A ritual bath. V. Glos.
8. The rule is that water in the mikweh must not be 'drawn' there by artificial means, i.e., through the instrumentality of a 'vessel', but must flow there naturally. According to this dictum, the fixing of the pipe in the soil does not make it part of the soil, and it still remains a 'vessel'. On the other hand, the hollowing of the wood or stone after it has been fixed does not make it a 'vessel', but it is regarded as being merely a trench in the ground.
9. I.e., with which statement of his is the one just adduced in conflict?
10. In the Baraitha quoted above: 'R. Eliezer says that everything attached to the ground is in the same category as the ground.'
11. Hence no conclusion is to be drawn from that Baraitha as to the opinions of R. Eliezer and the Rabbis with regard to the mikweh.
12. Attached to the ground by mud or clay.
13. V. infra p. 324, n. 7. Glos.