Bava Batra 63b (סג:) — the Talmud in English

And the Gemara explains:

For what halakhic purpose?

With regard to what did Reish Lakish say that the condition he stipulated was effective, namely, that the upper roof structure remained in his possession? After all, even without the condition, the upper roof structure would remain 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 purpose:

If he wished

the seller

to project from it

from the roof

projections (zizin)

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

he may project them.

Because we say that, in selling the courtyard, he retained for himself the right to use the airspace of the courtyard by means of the roof. Since the condition that he stipulated with him—that the roof was his—is ineffective, as even without having stipulated it the roof belongs to the seller, and he would not have needed to stipulate this, we therefore say that he intended the upper roof structure to remain his also for the purpose of projecting beams from the roof opposite the purchaser’s domain. And although this condition applies only where he retained for himself, in the sale, a place in the courtyard for projecting beams from the roof over the courtyard, it can be proven 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, the use of the airspace of the courtyard by means of the roof. Rather, the condition was effective only for this purpose:

If

the upper roof structure collapses, and

he wishes to build an upper story

new

upon it—

he may build it.

Because we interpret his intention in making the condition as being that the house would remain perpetually subordinated to the upper roof structure, and even if the upper roof structure collapses, he may return and rebuild it. But if the seller did not stipulate in advance concerning the upper roof structure, and it collapsed, he may not return and rebuild it in such a manner that the upper roof structure would be supported upon the purchaser’s house, because the house is subordinated to the seller only with regard to the upper roof structure that had existed there, and not to a new upper roof structure.

And the Gemara raises a difficulty:

Granted, according to Rav Zevid,

who holds that the seller’s superfluous condition was effective with regard to projecting beams from the roof, because we say that he retained a place in the courtyard in his sale, just as we say in the case of a field that he retained a place in the field in his sale for the tithe, if so, it is understandable that

this is what he teaches

that Reish Lakish taught:

This indicates

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

But according to Rav Pappa,

it is difficult:

What does “this indicates” mean,

when Reish Lakish said that he proves from the beraita concerning a field that the seller’s superfluous condition in selling the house was effective with regard to the possibility that, if the upper story collapses, he may return and build another upper story? After all, even without the beraita concerning a field, we know that any condition that one stipulates unnecessarily comes to add something that is needed, as is explained in the Mishna below [64a].

And we conclude: Indeed, according to Rav Pappa,

it is difficult.

Rav Dimi of Nehardea said: “With regard to one who sells a house to another,”

one who sold his fellow a house by means of a deed of sale and wishes to sell him the cistern and the storage pit in the house as well.

Since the cistern and the storage pit are not among the appurtenances 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 storage pit.

Even though he wrote for him

and even though the seller wrote for him in the deed

“its depth and its height,”

“its depth”—the area beneath the house—and “its height”—the area above the house—I am selling you, this expression is not understood to mean that he is also selling him the cistern and the storage pit.

Rather,

he must

the seller

write for him,

write for him in the deed:

“Acquire for yourself

the house

from the depths of the earth to the height of the firmament.”

What is the reason

why is the expression “its depth and its height” not understood as referring to the depth and height of the house, so that he sells him the cistern and the storage pit beneath the house?

Since

“its depth and its height”

of the house, when he sells the house

without specification, does not acquire

the area beneath the house and the area above the house together with the house, unless 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 its depth and height—is not superfluous wording indicating that he intended to sell the cistern and the storage pit, since this wording was necessary in itself.

Therefore,

the expression was effective

the wording

“its depth and its height”

that he wrote in the deed

to acquire the depth

to acquire the area beneath the house, such as the actual ground itself, 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 seller would retain the right to dig a cistern or a cave beneath the floor of the house, 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 a roof surrounded by a parapet ten handbreadths high, and also to build additional stories upon the house up to the firmament. For had he not written in the deed that he was selling him the height of the house, the roof together with its parapet would not be sold to the purchaser; rather, it would belong to the seller, for projecting beams or for building in the air without placing a burden upon the purchaser’s house.

But this expression is not understood to mean that he acquires the cistern and the storage pit, which are not part of the house, as 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 purpose it was effective when he wrote

“from the depths of the earth,”

from the bottom of the depths

“to the height of the firmament,”

to acquire—

to acquire also

a cistern, a storage pit, and caves.

Let us say that this supports

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

nor the cistern nor the storage pit, even though he wrote for him

in the deed that he was selling him

“its depth and its 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, the words “its depth and its height” that he wrote in the deed are superfluous, and why should

“its depth and its height” not be effective to acquire a cistern, a storage pit, and caves?

Rather, it is proven that the expression “its depth and its height” was necessary in itself to acquire the depth and height of the house, and it does not signify adding the cistern and the storage pit to the sale of the house, unless he writes in the deed that he is selling him the house, including the ground, from the bottom of the depths to the height of the firmament, as Rav Dimi said.

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

For it is possible to say that the Mishna is speaking of a case

where he did not write for him

“its depth and its height” in the deed, and therefore he did not acquire the cistern and the storage pit. But if he wrote in the deed that he was also selling the depth and height of the house, it is possible that through this he acquires the cistern and the storage pit as well, even if he did not write “from the bottom of the depths,” contrary to the statement of Rav Dimi.

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

But does it not teach, “even though he wrote for him

“its depth and its height”

”?

The Mishna explicitly indicates that even if he wrote this, he does not acquire the cistern and the storage pit.

The Gemara answers:

This is what it is saying:

This is how the statement of the Mishna can be interpreted:

“Even though he did not write for him”

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

it is considered as though he wrote it

it is considered

“to acquire its depth and its height.”

But

to acquire a cistern, a storage pit, and caves,

he must write this explicitly in the deed. Therefore,

if he wrote for him “its depth and its height”—

he acquires

the cistern and the storage pit, because writing in the deed that he is selling the depth and height of the house is superfluous, as they are sold even without his having written this in the deed. Rather, it was certainly written for the purpose of selling the cistern and the storage pit.

And if he did not write

its depth and height in the deed, even though the seller agreed to sell him, in the deed of sale for the house, the cistern and the storage pit as well—

he does not acquire

the cistern and the storage pit, since they are not included in the house in the manner that the depth and height of the house are.

Come and hear:

To support Rav Dimi’s statement, from the earlier Mishna, where we learned:

“Nor

did he sell together with the house

the roof when it has

on the roof

a parapet ten handbreadths high

around it, because in such a case the roof is significant in its own right and is not subsumed by the house.