Bava Batra 65a (סה.) — the Talmud in English

It was stated: Rav Huna said in the name of Rav:

The halakha is in accordance with the statement of the Sages,

as the seller sells begrudgingly.

And Rav Yirmeya bar Abba said in the name of Shmuel: The halakha is in accordance with the opinion of Rabbi Akiva,

as the seller sells generously.

Rav Yirmeya bar Abba said to Rav Huna:

How can you say in the name of Rav that the halakha is in accordance with the statement of the Sages,

when many times—

and indeed on numerous occasions—

I said before Rav that the halakha—

I said before Rav that the halakha is—

in accordance with Rabbi Akiva, and he did not say anything to me—

nothing at all!

He said to him,

Rav Huna to Rav Yirmeya:

How did you learn it?

How did you present the dispute between Rabbi Akiva and the Sages before Rav?

He said to him,

Rav Yirmeya:

I learned it in the opposite manner,

I presented the dispute such that Rabbi Akiva holds that the seller sells begrudgingly, while the Sages hold that the seller sells generously—that is, the reverse of the way Rav Huna taught it.

Rav Huna said to him: Since you learned their dispute in that manner,

that is why he did not say anything to you,

when you told him that the halakha is in accordance with Rabbi Akiva, since according to the way you presented the dispute, the halakha is that the seller sells begrudgingly.

Ravina said to Rav Ashi: Let us say

that Rav and Shmuel, who disagreed as to whether the halakha is in accordance with Rabbi Akiva or in accordance with the Sages,

follow their own principles—

that is, the reasoning behind their statements emerges and it is shown that this is their position from another source .

For we find elsewhere that Rav holds that the seller sells begrudgingly, while Shmuel holds that the seller sells generously.

As Rav Naḥman said in the name of Shmuel: Brothers who divided

two fields that their father had left them, where one field lay behind the other, and their father had been accustomed to enter the inner field through the outer field,

do not have a right of way through one another’s property,

the brother who received the inner field cannot require the brother who received the outer field to allow him to enter through his field, as their father had done.

According to Shmuel, the brothers are considered full partners with regard to the entire inheritance. When they divide the inheritance, each effectively sells the other his share in the jointly owned portion that the other receives. When the brother who received the inner field sold his share in the outer field to his brother, he sold it generously and did not retain for himself a right of way or passage through the outer field that he sold .

Nor do they have rights to ladders through one another’s property,

if one of the brothers received a courtyard and a house, while his brother took the upper story, the brother who took the upper story cannot place a ladder in his brother’s courtyard in order to ascend to the upper story.

Nor do they have rights to windows facing one another

if the brothers divided two houses, one may build a wall opposite his brother’s window, and the latter cannot object to the blocking of his light.

Nor do they have rights to a water channel through one another’s property,

if the brothers divided their father’s fields, one of the fields being adjacent to a water channel, and their father had been accustomed to diverting the water through one field to the other, the brother who took the field farther from the water cannot convey water from the river through his brother’s field.

And be careful with these rulings, for they are established halakhot!

That is, this is the halakha.

And this is Shmuel following his own principle, as he ruled that the halakha is in accordance with Rabbi Akiva, who holds that the seller sells generously. For the same reason, with regard to brothers who sold one another their portions of the inheritance, he ruled that they did not retain any rights in the portions they sold, since they sold generously.

And Rav said: They do have them!

One brother can compel the other to give him a right of way through his field, or compel him not to darken his dwelling; he can compel him to allow him to place a ladder in his courtyard in order to ascend to the upper story, and likewise he can compel him to allow him to convey water through his field.

And Rav follows his own principle, that the seller sells begrudgingly; therefore, the brother retained in the division he sold to his brother every provision needed for the portion he received, such as passage and light.

Rav Ashi said to Ravina: The dispute between Rav and Shmuel here, with regard to a sale, is not exactly like their dispute above, with regard to inheritance, and one dispute cannot be inferred from the other:

And for this reason

it is necessary,

Rav and Shmuel had to state their dispute both with regard to a sale and with regard to inheritance, because

if it had been taught to us

their dispute only

in that case,

with regard to inheritance, we would have said that only

in that case Rav said

that the brother sells begrudgingly and retains for himself in his brother’s portion everything needed for his own portion,

because he can say to him

to his brother:

I want to dwell in it just as my ancestors dwelled in it,

I want to dwell in the portion I inherited in the same manner that my ancestors dwelled in it, as they had a right of way and rights of use in all these matters.

Know

that this is a valid claim for the brother to make,

as it is written:

Psalms 45:17:

“In place of your fathers shall be your sons.”

Therefore, there is reason to say that he retains in the portion he sells everything needed for his own portion, since he wants to retain the ability to use his inherited portion in precisely the same manner that his father used it.

But in this case,

in the dispute between Rabbi Akiva and the Sages, with regard to an ordinary sale rather than an inheritance,

you might say that Rav agrees with him,

Rav with

Shmuel

that the seller sells generously and does not retain for himself the things needed for his portion.

And if it was stated in this case,

if the dispute between Rav and Shmuel had been stated only here, with regard to a sale, we would have said that only

in this case Shmuel said

that the seller sells generously.

But in this case,

with regard to inheritance,

you might say that he agrees with Rav

that the brother sells begrudgingly, since he has the claim that he wants to dwell in his portion as his ancestors dwelled in it. Therefore,

it is necessary

for the Gemara to teach us the dispute between Rav and Shmuel both here, with regard to a sale, and above, with regard to inheritance.

Rav Naḥman said to Rav Huna:

Is

the halakha in accordance with us

like us—that is, like Shmuel, who holds that the seller sells generously [as Rav Naḥman was Shmuel’s student],

or is the halakha in accordance with you

like you—that is, like Rav, who holds that the seller sells begrudgingly [as Rav Huna was Rav’s student]?

He said to him,

Rav Huna:

The halakha is in accordance with you—

the halakha is like you, like Shmuel, who holds in accordance with Rabbi Akiva that the seller sells generously . Because

you are close to the gate of the Exilarch, where judges are frequently found -

for you are close to the gate of the Exilarch, where judges are found, and therefore you are more expert in monetary law, since Rav Naḥman [Shmuel’s student] was the son-in-law of the Nasi, and was present among the judges and saw every day how the judges adjudicated.

It was stated: Two houses

that were

one behind the other,

and the passage from the inner house to the public domain was through the outer house: If he transferred

both

at once to two different people

by sale,

or transferred

both of them as a gift

to two people—

they do not have a right of way through one another’s property,

and the owner of the inner house has no passage through the outer house, because just as the seller sold and gave generously to the inner recipient, so too he sold and gave generously to the outer recipient.

Even according to the Sages, he is not considered to have sold and given begrudgingly to the inner recipient except where he sells the inner house and retains the outer house for himself. But where he sells both the inner house and the outer house, everyone agrees that to this one he sold the entire inner house and to that one he sold the entire outer house, and the owner of the inner house has no right whatsoever in the outer house, because he does not give generously to one at the expense of the other .

All the more so

if he transferred the

outer house as a gift and the inner house by sale,

for he certainly does not sell generously to the purchaser at the expense of the recipient of the gift.

And if he transferred the

outer house by sale, and the inner house

gave

as a gift—

they initially thought

to infer from here that

they do not have a right of way through one another’s property,

because since he transferred both houses, he does not give generously to one at the expense of the other.

That is not so!

For

did we not learn

below [71a]:

In what case are these matters stated,

that the Sages disagree and hold that the purchaser must acquire a right of way from the seller, whereas the seller need not acquire a right of way from the purchaser because the seller sells begrudgingly? This applies specifically

to a seller, but with regard to one who gives a gift,

the Sages agree that he

gives all of it generously, including

the right of way.

Apparently,

although according to the Sages, who hold that the seller sells begrudgingly, they nevertheless agree that

one who gives a gift—

gives generously.

Here too,

here, with regard to one who sells the outer house and gives the inner house as a gift,

one who gives a gift—

gives generously,

and not only according to the Sages, who hold that the seller sells begrudgingly—for according to their opinion, he certainly sells begrudgingly for the benefit of the recipient of the gift—but even according to Rabbi Akiva, who holds that the seller sells generously, one who gives a gift gives even more generously. Therefore, the recipient of the gift has a passage through the outer house, because by giving one person a gift, it is evident that the giver seeks the benefit of the recipient of the gift more than that of the purchaser.

Mishna:

One who sells a house without specifying what is included in the sale of the house: All the fixed furnishings of the house are sold together with the house, whereas movable objects are not sold.

And therefore,

he sold the door,

which is fixed in the house,

but not the key,

which is a movable object.

Likewise,

he sold the fixed mortar

that is attached to the ground,

but not the

mortar

that is movable.

And likewise,

he sold the itztrobil—

the wooden frame surrounding the millstone , and it serves to prevent the flour from scattering , as it is fixed and is not moved from its place—

but not the kelet,

the hopper into which the grain is poured in order to grind it , as it is not sold with the house, since it is movable,

nor the oven nor the stove,

as they are movable.