Mishnah
Mishnah

Talmud for Bava Batra 4:2

לֹא אֶת הַבּוֹר, וְלֹא אֶת הַדּוּת, אַף עַל פִּי שֶׁכָּתַב לוֹ עֻמְקָא וְרוּמָא. וְצָרִיךְ לִקַּח לוֹ דֶרֶךְ, דִּבְרֵי רַבִּי עֲקִיבָא. וַחֲכָמִים אוֹמְרִים, אֵינוֹ צָרִיךְ לִקַּח לוֹ דָרֶךְ. וּמוֹדֶה רַבִּי עֲקִיבָא, בִּזְמַן שֶׁאָמַר לוֹ חוּץ מֵאֵלּוּ, שֶׁאֵינוֹ צָרִיךְ לִקַּח לוֹ דָרֶךְ. מְכָרָן לְאַחֵר, רַבִּי עֲקִיבָא אוֹמֵר, אֵינוֹ צָרִיך לִקַּח לוֹ דֶרֶךְ. וַחֲכָמִים אוֹמְרִים, צָרִיךְ לִקַּח לוֹ דָרֶךְ:

(He has) not (sold) the bor [a cavity in the ground] nor the duth [a structure of stones above the ground in the form of a bor], even if he wrote (that he is selling) him the depth and the height (of the house). [He does not acquire the bor and the duth since their use (water storage) is distinct from (that of) the house. (They are not acquired) unless he writes "from the bottom of the depths to the heights of the heavens."] And he [the seller] must buy access rights [from the buyer to the bor and the duth. For the seller sells "generously," reserving nothing for himself.] These are the words of R. Akiva. The sages say: He need not buy access rights. [They hold that the seller sells "stintingly," so that when he sold the house, he reserved for himself access rights to the bor and the duth.] And R. Akiva concedes that if he said to him: "Except these" [the bor and the duth], he need not buy access rights, [for, being a superfluous condition, it is understood to refer to access rights.] If he sold them [the bor and the duth] to another, [leaving the house for himself], R. Akiva says that he (the buyer) need not buy access rights, [for the seller sells "generously," and when he sold him the bor and the duth, he also sold access rights.] The sages say that he must buy access rights. [The halachah is in accordance with R. Akiva.]

Jerusalem Talmud Ketubot

111In a slightly different formulation, this paragraph is also in Baba batra 4:2. Rebbi Jeremiah said, both Admon and Rebbi Aqiba said the same thing, as we have stated there112Mishnah Baba batra 4:2. The Mishnah belongs to a series of statements about commercial contracts. If somebody sold cisterns in his backyard to a third party, R. Aqiba holds that nobody buys anything which he cannot use; therefore, it is understood that the seller, by offering the cisterns for sale, did also offer access to them. But the Sages hold that people also buy real estate for speculation and, therefore, the sale covers only what is explicitly stated in the sales contract and nothing more.: “If he sold them to another person, Rebbi Aqiba said, he does not have to buy access, but the Sages say, he has to buy access.” He had not heard that Rebbi Hila said, Rebbi Yasa in the name of Rebbi Joḥanan: They disagree when nothing was mentioned113The sales contract does not mention access.. Where do we hold? If it is obvious that access was included114If the right of access to the property was mentioned in the contract., everybody agrees that he does not have to pay for access. If it is obvious that access was not included115It is not necessary that access was excluded, it suffices if the contract states that only cisterns are sold., everybody agrees that he has to pay for access. But we must hold that nothing was mentioned. Then Rebbi Aqiba said, he does not have to buy access, but the rabbis say, he has to buy access. But in the case here, even while it is clear that he had access, everybody116This is not everybody; everybody except Admon. The question in Ketubot is not one of interpretation of commercial contracts but of enforcing a claim if it is not known against whom the claim could be enforced. agrees that he has to pay for access.
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