Bava Batra 64a — the Talmud in English

And if you should say that this refers to an unspecified sale,

meaning that he did not specify in the deed that he was selling the full depth and height of the house,

he acquires

together with the house

its depth and height,

contrary to the statement of Rav Dimi. If so,

when it is ten handbreadths high

the parapet surrounding the roof,

what difference does that make?

Why is the roof not included together with the height of the house?

Rather, it follows from the Mishna that if he did not specify in the deed that he was selling the height of the house, it is not included in the sale of the house, and therefore he does not acquire a roof whose parapet is ten handbreadths high, and the same applies to the depth of the ground beneath the house: he does not acquire it unless this is explicitly stated in the deed.

We reject this:

since the parapet is ten handbreadths high,

the parapet surrounding the roof

is considered

an independent house, and it is not subsumed within the house until he specifies in the deed that he is also selling the height of the house. But he does acquire the airspace above the roof up to the sky—that is, the height of the house—and likewise the depth of the ground beneath the house, even if he did not specify these in the deed.

Ravina said to Rav Ashi: Consider a proof:

This is to prove that if he did not specify in the deed that he was selling the depth and height of the house, the buyer nevertheless acquires its depth and height.

For Reish Lakish said

earlier, on the previous page:

This indicates that when one sells a house to another and says to him, “On the condition that the upper roof remains mine,”

meaning that the roof surrounded by a parapet ten handbreadths high will remain mine, -

the upper roof remains his.

And we said

earlier:

For what legal purpose

did Reish Lakish say that the condition was effective, so that the roof remained in his possession?

Rav Zevid said:

The condition was effective for this purpose:

if he wished

the seller

to extend from it

from the roof

projecting beams

over the courtyard that he sold to the buyer,

he may extend them.

We say that when he sold the courtyard, he retained the right to use the roof over the airspace of the courtyard.

Rav Pappa said:

The condition was effective for this purpose:

if he wished

the seller

to build an upper story

a new one

on top of it,

the roof

he may build it.

Rav Pappa’s statement proves that even if the seller did not specify that he was selling the depth and height of the house, the buyer acquires its depth and height, because

if you should say that in an unspecified sale,

meaning that the seller did not specify in the deed that he was selling the depth and height of the house,

he does not acquire them,

the buyer does not acquire its depth and height. If so, this is difficult:

why do I need the condition?

For what purpose was the seller’s condition effective? Even without his condition, the height of the house and the upper roof would remain his, and he could build there if he wished.

Rather, it is proven that in an unspecified sale the buyer acquires the height of the house. Therefore, according to Rav Pappa, the condition was effective so that if the seller wished to build on top of the roof and raise other structures within the height above the house, he could do so. Had the seller not stipulated in advance concerning the upper roof, the buyer would acquire the airspace above the house.

We reject this: It is always possible to say that in an unspecified sale, when this was not stated in the deed, the buyer does not acquire the height of the house.

And as for the difficulty according to Rav Pappa—what purpose did the seller’s condition serve, since even without it the height of the house would remain his—

it can be resolved as follows:

the condition was beneficial to him

when the seller stipulated it in the deed, not with regard to building in the airspace above the house, but with regard to the following:

if it collapses,

meaning, if the upper roof collapses,

he may rebuild it.

We interpret his intention in the condition to be that the house would remain permanently subject to the upper roof, so that even if it fell, he could rebuild it. But if the seller had not stipulated in advance concerning the upper roof and it collapsed, he could not rebuild it in a manner that would cause the roof to rest upon the buyer’s house, because the house is subject to the seller only for the roof that had existed there, and not for a new roof.

Mishna:

One who sells a house does not sell

either the pit or the cistern

which is similar to a pit; [the Gemara will explain the difference between a pit and a cistern

even if he wrote to him

the seller wrote in the deed that he was also selling

the depth and height

of the house. Nevertheless, he did not sell the pit or the cistern, because these are not included in the house: they are made for independent use, to collect water in them. This is so unless he wrote in the deed that he was selling him the house from the depths of the earth to the height of the sky [as explained in the Gemara above, on page 63b].

And he must

the seller

purchase a path for himself

from the buyer, in exchange for payment, in order to reach the pit and the cistern that he retained for himself,

the words of Rabbi Akiva,

for Rabbi Akiva holds that a seller sells generously and did not retain a path for himself .

And the Sages say: He need not purchase

to buy

a path for himself

from the buyer to the pit and the cistern, for the Sages hold that a seller sells ungenerously, and when he sold the house he retained for himself a path to his pit and cistern.

And Rabbi Akiva concedes that when he said to him

the seller said to the buyer:

“Except for these,”

the pit and the cistern, since he explicitly stipulated that he was not selling them to him,

he need not purchase a path,

because this condition is unnecessary: the pit and the cistern are not included in a house, as we learned above. Rather, he made this condition in order to add to himself a path to the pit and the cistern .

If he sold them to another

meaning, if he sold the pit and the cistern to another person while retaining the house for himself,

Rabbi Akiva says:

The buyer

need not purchase

to buy

a path for himself

to the pit and the cistern, because one who sells generously sells, and when he sold him the pit and the cistern, he certainly sold him a path as well.

And the Sages say: He must purchase a path for himself,

because a seller sells ungenerously .

Gemara:

Ravina was sitting and raising a difficulty for himself:

“The pit is the cistern, and the cistern is the pit!”

There is no difference between a pit and a cistern, since both are deep in the ground and filled with water. If so, why did the Mishna need to specify both of them? If he does not acquire the pit, he certainly does not acquire the cistern, since there is no difference between them.

Rava Tosfa’a said to Ravina:

“Come and hear”:

This will resolve your difficulty, from the following source

that was taught:

Both the pit and the cistern

are pits

in the ground; but the pit

is made

by digging

in hard ground that holds the water without constructing supporting walls around the inside of the pit,

whereas the cistern

is made

by construction,

meaning that one digs a pit in loose soil and builds strong walls around it .

Therefore, the Mishna needed to specify both of them. If it had taught only “pit,” we might have thought that only a pit made by digging is not sold together with the house, whereas a cistern, which is a pit built with walls like a house, is included in the house. And if the Mishna had taught only “cistern,” we would have said that because it is an independent structure, it is not sold together with the house, whereas a pit, which is not important, is subsumed within the house. Therefore, the Mishna had to write both “pit” and “cistern.”

Rav Ashi was sitting and raising a difficulty for himself,

the same difficulty that had troubled Ravina:

“The pit is the cistern, and the cistern is the pit!”

Mar Kashisha, son of Rav Ḥisda, said to Rav Ashi: “Come and hear,”

to resolve it as Rava resolved it, from the following source

that was taught: “Both the pit and the cistern are in the ground; but the pit is made by digging, and the cistern by construction.”

We learned in the Mishna:

“And he must purchase a path for himself, the words of Rabbi Akiva. And the Sages say: He need not purchase a path for himself.”

And we considered this:

“Is it not with regard to this that they disagree,”

meaning: Is this not the issue over which Rabbi Akiva and the Sages disagree?