Bava Batra 63b — the Talmud in English

And the Gemara explains:

For what halakhic matter?

With regard to what did Reish Lakish say that the condition he stipulated was effective, that the upper loft remains in his possession? After all, even without the condition, the upper loft remains in the seller’s possession, as explained in the Mishna—that the roof is not sold together with the house.

Rav Zevid said:

The condition was effective for this matter:

If he wished

the seller

to extend from it

from the roof

projections

protruding objects] over the courtyard that he sold to the purchaser—

he may extend them.

For we say that he retained, in the sale of the courtyard, the right to use the roof over the airspace of the courtyard, since, as this condition that he stipulated with him—that the roof is his—is not effective, for even without stipulating, the roof belongs to the seller, and he did not need to stipulate concerning this; therefore, we say that he intended that the upper loft would be his also for extending projections from the roof opposite the domain of the purchaser. And even though this condition applies only in a case where he retained for himself, in the sale, a place in the courtyard for extending projections from the roof over the courtyard, it is necessary to prove from the beraita that the condition is effective and that a reservation in the sale takes effect.

Rav Pappa said:

The condition was not effective to reserve, in the sale of the courtyard, use of the roof over the airspace of the courtyard. Rather, the condition was effective only for this matter:

if

the upper loft fell, and

he wished to build an upper story

new

upon it—

he may build.

For we interpret his intention in the condition as being that the house would be subordinated forever to the upper loft, and even if the loft fell, he would be able to return and rebuild it. But if the seller did not stipulate in advance concerning the upper loft and it fell, he cannot return and rebuild it in such a way that the loft would be supported upon the house of the purchaser, for the house is subordinated to the seller only for the loft that had existed there, and not for a new loft.

And the Gemara raises a difficulty:

Granted, according to Rav Zevid,

who holds that the seller’s superfluous condition was effective for extending projections from the roof, by our saying that he retained in his sale a place in the courtyard, just as we say concerning a field that he retained in his sale a place in the field for the tithe; if so, it is understandable that

this is what he teaches

that Reish Lakish taught:

This is to say,

for Reish Lakish needed to learn from the beraita that the condition is effective to reserve a place from the sale, since by reasoning alone we would not say that a person reserves for himself something of what he sells, even though he stated a superfluous condition.

But according to Rav Pappa

it is difficult:

What is the meaning of “this is to say”

that Reish Lakish said, to prove from the beraita concerning a field that the seller’s superfluous condition in selling the house was effective for the matter that if the upper story falls, he can return and build another upper story? After all, even without the beraita concerning a field, we know that every condition that he stipulated without need comes to add something necessary, as is explained in the Mishna below [64a].

And we conclude: Indeed, according to Rav Pappa,

it is difficult.

Rav Dimi of Nehardea said: This one who sells a house to his fellow,

one who sold his fellow a house with a deed of sale, and wishes to sell him also the cistern and the pit in the house.

Since the cistern and the pit are not part of the needs of the house that are sold together with the house, the seller must explicitly state in the deed of sale that he is also selling him the cistern and the pit.

Even though he wrote to him

and even though the seller wrote to him in the deed:

“depth and height,”

“I sell you its depth and its height,” this expression is not understood as meaning that he is also selling him the cistern and the pit.

Rather,

he must

the seller

write to him,

write to him in the deed:

“Acquire for yourself,”

“let the house be acquired by you”

“from the depths of the earth to the height of the sky.”

What is the reason

why is the expression “the depth and the height” of the house not understood as selling also the cistern and the pit beneath the house?

Since

“depth and height”

of the house, when he sold the house

without specification, he does not acquire

the area beneath the house and the area above the house together with the house, until he explicitly states in the deed that he is also selling him the depth and height of the house, and therefore what he wrote in the deed, that he is selling the depth and height of the house, is not a superfluous expression indicating that he intended to sell the cistern and the pit, for this expression was necessary for its own purpose.

Therefore,

it was effective

the expression

“depth and height”

that he wrote in the deed

to acquire the depth

to acquire the area beneath the house, such as the actual body of the land, so that if he wishes, he may dig beneath the floor of the house. For had he not written in the deed that he was selling the depth of the house, the right to dig a cistern and a cave beneath the floor of the house would remain in the seller’s possession, provided that the seller does not damage the house,

and the height

that he wrote in the deed was effective to acquire the area above the house, such as the roof that has a railing ten handbreadths high around it, and also to build additional stories upon the house up to the sky. For had he not written in the deed that he was selling him the height of the house, the roof with the railing would not be sold to the purchaser; rather, it would belong to the seller for extending projections or building in the air without weighing upon the purchaser’s house.

But this expression is not understood as meaning that he acquires the cistern and the pit, which are not part of the house, for they are made for use in themselves and are not included in the depth and height of a house.

And it was effective

and for this it was effective when he wrote

“from the depths of the earth”

from the bottom of the abyss

“to the height of the sky,”

to acquire—

to acquire also

a cistern, a pit, and subterranean chambers.

Let us say that it supports him

Rav Dimi—that the depth and height of the house do not include the cistern and the pit—from what we learned in the Mishna below: “One who sells the house does not sell” ...

“nor the cistern nor the pit, even though he wrote to him”

in the deed that he was selling him

“depth and height.”

And if it enters your mind

that also

without specification,

even though he did not write in the deed that he was selling the depth and height of the house,

he acquires the depth and height,

if so, “depth and height,” which he wrote in the deed, is superfluous; and why should

“depth and height” be effective to acquire a cistern, a pit, and subterranean chambers?

Rather, it is proven that the expression “depth and height” was necessary for its own purpose, to acquire the depth and height of the house, and its meaning is not to add the cistern and the pit to the sale of the house, until he writes in the deed that he is selling him the house including the land from the bottom of the abyss to the height of the sky, in accordance with the words of Rav Dimi.

And we reject this: There is no proof from the Mishna that the expression “depth and height” of the house does not include the cistern and the pit.

For it can be said that the Mishna is speaking of a case

where he did not write to him

in the deed “depth and height,” and therefore he did not acquire the cistern and the pit; but if he wrote to him in the deed that he was also selling the depth and height of the house, it is possible that through this he acquires also the cistern and the pit, even if he did not write “from the bottom of the abyss,” and not in accordance with the words of Rav Dimi.

And the Gemara raises a difficulty: How can the Mishna be explained as saying that he did not acquire the cistern and the pit because he did not write in the deed that he was selling the depth and height of the house?

But “even though he wrote to him

depth and height

” it teaches

in the Mishna; it is explicitly explained in the Mishna that even if he wrote this, he does not acquire the cistern and the pit.

And the Gemara answers:

This is what it says,

this is how the words of the Mishna can be interpreted:

“Even though he did not write to him”

in the deed that he was selling him the depth and height of the house,

it is considered as though he wrote

it is considered

“to acquire the depth and height.”

But

to acquire a cistern, a pit, and subterranean chambers,

he must write explicitly in the deed; therefore,

if he wrote to him “depth and height”—

he acquires

the cistern and the pit, because writing in the deed that he is selling the depth and height of the house is superfluous, since even without writing this in the deed, it is sold; rather, certainly it was written for the sake of selling the cistern and the pit.

And if he did not write

the depth and height in the deed, even though the seller consented to sell him, in the deed of sale of the house, also the cistern and the pit—

he does not acquire

the cistern and the pit, which are not included in the house, like the depth and height of the house.

Come and hear:

to bring support for the words of Rav Dimi, from the Mishna above, where we learned:

“Nor”

did he sell together with the house

“the roof when it has”

a roof

a railing ten handbreadths high

around it, for in such a case the roof is important in itself and is not subordinate by virtue of being attached to the house.