Bava Batra 64a (סד.) — the Talmud in English

And if you are inclined to say that when the sale is unspecified,

that is, without explicitly stating in the document that he is selling the depth and height of the house,

he acquires

along with the house

the depth and height,

and this is contrary to the statement of Rav Dimi, then

when it is ten

the handbreadths high,

what is the significance of this?

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

Rather, it may be inferred from the Mishna that if he did not specify in the document the height of the house, it is not included in the sale of the house; and therefore he does not acquire the roof whose parapet is ten handbreadths high. And the same applies to the depth of the floor of the house: he does not acquire it unless this is explicitly stated in the document.

And we reject this:

Since it is ten handbreadths high,

the parapet surrounding the roof

renders it

a separate house, and it is not subsumed within the house unless he specifies in the document that he is also selling the height of the house. But as for the airspace above the roof up to the firmament—that is, the height of the house—and likewise the depth of the floor of the house, he acquires them even without specifying this in the document.

Ravina said to Rav Ashi: Come and hear

a proof that when he did not specify in the document that he was selling the depth and height of the house, he nevertheless acquires its depth and height.

As Reish Lakish said

above, on the previous folio:

This indicates: If one sells a house to another and says to him: On the condition that the upper story remains mine,

that is, the roof whose parapet surrounds it and is ten handbreadths high shall remain mine— -

the upper story remains his.

And we said

above:

For what halakhic purpose?

With regard to what did Reish Lakish say that the condition stipulating that the roof remains in his possession is effective?

Rav Zevid said:

The condition is effective for this purpose:

If he wishes

the seller

to project from it

from the roof

beams

over the courtyard that he sold to the buyer—

he may project them.

For we say that he retained in the sale of the courtyard the right to use the roof at the expense of the airspace of the courtyard.

Rav Pappa said:

The condition is effective for this purpose:

If he wishes

the seller

to build an upper story

a new one

on top of it,

the upper story,

he may build it.

And from the statement of Rav Pappa it may be proved that even when 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 are inclined to say that when the sale is unspecified,

that is, without the seller specifying in the document that he is selling the depth and height of the house,

he does not acquire it,

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

Why do I need the condition?

With regard to what is the condition stipulated by the seller effective? Even without the condition he stipulated, the height of the house and the upper story would remain his, and he could build there if he wished.

Rather, it is proved that when the sale is unspecified, the buyer acquires the height of the house. Therefore, according to Rav Pappa, the condition is effective for the purpose that if the seller wishes to build on top of the upper story and raise other structures in the height of the house, he may build them. For if the seller had not stipulated in advance concerning the upper story, the buyer would have acquired the airspace above the house.

And we reject this: It can actually be said that when the sale is unspecified, without its being stated in the document, the buyer does not acquire the height of the house.

And as for the difficulty with the statement of Rav Pappa, concerning what purpose the condition stipulated by the seller serves, since even without his stipulating it, the height of the house remains his—

it can be resolved that

the condition was effective for him

which the seller stipulated in the document, not with regard to building in the airspace above the house, but with regard to the following:

if it falls,

that is, if the upper story falls,

he may rebuild it,

he may build a new upper story on top of it. For we interpret his intention in the condition to be that the house shall remain perpetually subordinated to the upper story, and even if it falls, he may return and rebuild it. But if the seller did not stipulate in advance concerning the upper story and it fell, he may not return and rebuild it in a manner in which the upper story would impose a burden on the buyer’s house, because the house is subordinated to the seller only with regard to the upper story that had existed there, and not with regard to a new upper story.

Mishna:

One who sells a house does not sell

either the cistern or the pit—

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

even though he wrote to him

the seller wrote in the document that he was also selling

the depth and height

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

And

the seller

must purchase a path for himself

from the buyer, with money, in order to go to the cistern and pit that he retained for himself,

the statement of Rabbi Akiva,

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

And the Sages say: He need not purchase—

purchase

a path for himself

from the buyer to the cistern and pit, as the Sages hold: A seller sells begrudgingly, and when he sold the house, he retained for himself a path to his cistern and pit.

And Rabbi Akiva concedes when he said to him

the seller said to the buyer:

Apart from these—

the cistern and pit, stipulating explicitly that he was not selling them to him—

that he need not purchase a path,

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

If he sold them to another—

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

Rabbi Akiva says:

The buyer

need not purchase—

purchase

a path for himself

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

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

as a seller sells begrudgingly.

Gemara:

Ravina was sitting and raising a difficulty for himself:

Is a cistern not identical to a pit?

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

Rava Tosefa’a said to Ravina:

Come and hear:

To resolve your difficulty from the following

as it was taught:

Both a cistern and a pit

are excavations

in the ground, except that the cistern

is made

by excavation—

in hard ground that holds water without constructing supporting walls around the inside of the excavation—

whereas the pit

is made

by construction,

as one digs a pit in loose earth and builds strong walls around it.

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

Rav Ashi was sitting and raising a difficulty for himself,

the same difficulty that Ravina had raised:

Is a cistern not identical to a pit?

Mar Kashisha, son of Rav Hisda, said to Rav Ashi: Come and hear,

to resolve it as Rava resolved it, from the following

as it was taught: Both a cistern and a pit are in the ground, except that the cistern is made by excavation and the pit by construction.

We learned in the Mishna:

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

And we raise a discussion concerning it:

Is it not that they disagree with regard to this,

that is, is this not the issue over which Rabbi Akiva and the Sages disagree?