Comentario sobre Baba Batra 4:14

המוכר את הבית. היציע – like a kind of room that they make around the walls of the house from the outside, like what was in the Temple, as it is written (I Kings 6:6): “The lowest story was [five cubits wide],” and there are those who make it in the thickness of the wall. But even though that it is open to the house and its usage is within, even so, it is not sold. And it is four cubits, but if it is not four cubits, it is not considered [separate] and it is sold with the house.

Introduction Chapter four of Bava Batra deals with the laws of sale, and specifically with the question which things are included in the sale of a particular item. Mishnah one begins to discuss the laws of selling a house: when a house is sold what things are sold with and as part of the house?

ולא את החדר שלפנים – from the house, and even though it is open to the house and it is tread upon.

If a man sold a house, he has not sold its side chambers, even though they open into the house, nor the room that is behind [the house], nor the roof, if it has a railing more than ten hand-breadths high. Rabbi Judah says: “If the roof as entrance shaped like a door, even if the railing is not ten hand-breadths high, it is sold.” If someone sells a house without specifying what parts of the house he is selling, there are certain things that are not included in the sale. According to section one, basically the main room is included in the house, but the side room and the room behind the house are not included. The roof is also not included, on the condition that it has a railing more than ten hand-breadths high. According to Rabbi Judah, even if the railing is not ten hand-breadths high, if it has an entrance the shape of a door, it is not sold with the house. In order for the purchaser to acquire these things, he would have to specify so at the time of the sale.

בזמן שיש לו מעקה גבוה עשרה – it is considered by itself and not nullified in regard to the house.

Questions for Further Thought:
• Why is important for the roof to have a railing more than ten-handbreadths high, in order for it not to be included in the sale?

רבי יהודה אומר וכו' – The Halakha is not according to Rabbi Yehuda.

בור – a pit in the ground.

Nor [has he sold] the cistern or the cellar, even though he had written in the deed of sale, “the depth and height”.
And he [the seller] must buy himself a path [from the new owner to reach the cellar or cistern], according to Rabbi Akiva. But the Sages say: “He need not buy himself a path.” And Rabbi Akiva agrees that if he had said to him, “Excepting these [the cistern or cellar]” that he need not buy himself a path.
If he sold them [the cellar or cistern] to another, Rabbi Akiva says: “He need not buy himself a path.” But the Sages say: “He must buy himself a path.”
Mishnah two continues to deal with the question which the mishnah began to deal with in mishnah one, when a house is sold what things are sold with and as part of the house?
All of the sages of our mishnah agree that when a person sells another person a house, he has not sold the underground chambers, namely a cistern for storing water, or a cellar used to store food and wine. Even if he wrote that he was selling to the depth of the house, his intent may have been the floor of the house, and not the cellar or cistern. The argument between Rabbi Akiva is over whether or not the seller must buy a path in the house that he sold which will allow him to get to his cellar or cistern. According to Rabbi Akiva, since he sold the whole house, the new owner will have the right to refuse entrance. If the old owner wants to get to his cellar he will need to purchase a path. The Sages disagree. When the person sold the house and did not sell the cellar, we can assume that he intended not to sell a path in the house by which he could reach the cellar. Hence, he does not need to buy a path. Rabbi Akiva agrees with the Sages that if the seller specified to the buyer that he was not selling the cellar or cistern, than he intended on retaining the path and he need not, therefore, purchase the path from the buyer of the house.
Section three discusses the opposite situation, where a person sells a cistern or cellar but not the house. According to Rabbi Akiva, the assumption is that when the seller sold the cistern he intended to sell a path as well, and the buyer need not, therefore, purchase a separate path. According to the Sages, the seller may have sold the cistern or cellar without intending to sell a path by which the buyer could reach them. Consequently, if the buyer wishes to get to his new cellar or cistern he must buy a path as well.

דות – a building of stones on top of the ground made like a pit.

אף על פי שכתב לו עומקא ורומא – He did not purchase a cistern/pit or a subterranean masoned storeroom since their usages are separate from the house, and they are not made other than to draw out water, until he writes: “from the lower portion/bottom of the depths until the heights of the sky.”

וצריך – the seller

to purchase for him a path/right-of-way, from the purchaser to walk to the pit and the building of stones of top of the ground made like a pit, because the seller sells with good will, and doesn’t leave anything to himself.

וחכמים אומרים אינו צריך – for they hold that he sells ill-will/selfishness/envy and when he sold the house, he retained for himself a path that he can walk to the pit/cistern and the subterranean masoned storeroom.

בזמן שאמר חוץ מאלו – except for a pit and a subterranean masoned storeroom, for it is a condition that that it is not for any need for he comes to add a pathway.

מכרן לאחר – he sold the pit and the subterranean masoned stoneroom to another, and left the house to himself.

רבי עקיבא אומר אין הלוקח צריך ליקח ממנו דרך – Because the seller sells with good will, and when he sold him the pit and the subterranean masoned storeroom, he also sold him a right-of-way/path. And the Halakha is according to Rabbi Akiva.

המוכר את הבית – undefined.

Introduction Mishnah three continues to discuss what parts of the house are sold with a house when the house is sold without specification as to what is being sold. Mishnah four discusses what parts of a courtyard are sold, also when specification is lacking.

מכר את הדלת – because all of the fixed implements of the house are included in the house.

If a man sold a house he has sold also the door, but not the key. He has sold a permanent mortar but not a movable one. He has sold the convex millstone (the lower, usually fixed but not the concave one. Nor [has he sold] the oven or the stove. But if he had said: “[I am selling to you] the house and all that is in it, these are also sold.” The mishnah lists the things that are permanent parts of the house and therefore are sold as part of the house even though not specified in the sale. The door is a permanent part of the house and therefore it is sold with the house. The key is not a part of the house and hence, is not part of the house. A permanent mortar, used for crushing, is part of the house but a movable one is not. The millstone fixed to the ground is part of the house but the movable, top millstone is not. Nor are ovens and stoves part of the house. Finally the mishnah clarifies that if the seller had specified that he is selling all that is in the house, all of these things are also including.

אבל לא את המפתח – because it is something movable.

המכתשת – that is fixed in the ground.

האיצטרובל – a circle of wood that they place the millstone on it and it is fixed.

הקלת – the hopper/grain-receiver (on top of the millstone) that they make around the millstone to receive the ground flour that it will not fall to the ground and it is movable.

ולא את התנור ולא את הכירים – for they are movables. And there are books which have the textual reading:"מכר תנור, מכר כירים"/if he sold the oven, he sold the double-stove also and it is speaking of something permanent and attached to the ground.

הרי כולם מכורים – all of these are implements of the house, but the rest of kinds of utensils are not sold, even if he (i.e., the seller) stated: “and everything that is inside it” – he did not include other than implements unique to the house like a key and a hopper/grain-receiver and things like that.

מכר את הבתים – that are open to the courtyard.

Introduction Mishnah four discusses what parts of a courtyard are sold when specification is lacking.

ובורות שיחין ומערות – that are within the houses and even though the person selling a house did not sell the cistern, the trench and the cave/vault, but regarding the courtyard, however, they cease to exist.

If a man sold a courtyard, he has also sold its houses, cisterns, trenches and caves, but not the movable property. But if he had said: “It and all that is in it” all of these are also sold. But in neither case has he sold the bath-house, or the olive press that are in it. Rabbi Eliezer says: “If a man sold a courtyard, he has sold only the air (the open of the courtyard. This mishnah explains what parts of a courtyard complex are sold with it even though not specified as part of the sale. The sale of the courtyard includes all of the houses, and underground structures that are attached or part of the courtyard. As in the previous mishnah, only the fixed, permanent pieces of the property are included in the sale. If, on the other hand, the seller specified that he was selling everything in the courtyard, he has sold the movable property as well. However, as we learn in section 1c, the bath-house and olive press are in any case not considered part of the courtyard, and are consequently not sold with it, even if he stipulated that he was selling everything in the courtyard. Rabbi Eliezer disagrees. According to him, when a man sells a courtyard he is only selling the empty yard part, but not the structures that are attached to it.

בין כך ובין כך – even if he said, “everything that is within it,” he did not sell the bathhouse, etc. because they are not part of the courtyard.

Questions for Further Thought:
• Why are a bath-house and olive press not considered part of the courtyard to be sold with it?
• With which parts of the mishnah does Rabbi Eliezer disagree?

רבי אליעזר אומר וכו' – But the Halakha is not according to Rabbi Eliezer.

מכר את הים – the stone that they place the olives into at the time of their grinding.

Introduction The mishnah which we will learn today continues to discuss which things are included in certain sales.

ממל – The upper millstone where they crush the olives.

If a man sold an olive press he has sold also the vat, the grindstone, and the posts, but he has not sold the pressing-boards, the wheel or the beam. But if he had said: “It and all that is in it”, all these are sold also. Rabbi Eliezer said: “If a man sold an olive press he has sold the beam also.” We learn in this mishnah that when a man sells an olive press without specifying which parts of the olive press he is selling, he has sold only the parts that are fixed in their place. These include the vat used to collect the oil, the grindstone used to crush the olives and the posts used to prop up the beam that would press the olives. The parts of the press that are not fixed in place, namely the pressing-boards, placed on top of the sacks of crushed olives, the wheel, used to lift the beam, and the beam, used to exert pressure on the olives, are all not sold with the olive press. If, however, he had stated that he was selling the press and all that was in it, than he has sold the pressing-boards, the wheel and the beam as well. Rabbi Eliezer disagrees with the first clause. According to him when one sells an olive press one sells the beam, even though it is not fixed. Since the beam is the most important part of the press, it is assumed that it is sold along with it.

הבתולות – cedar beams/poles supporting the traverse press beam (see Talmud Bava Batra 67b)of the olive press.

עבירין – heavy planed boards that they place on the אמתחות – which they place on the pounded olives in order to pickle them.

הגלגל – when the stone revolves and puts heavy weight on the pounded olives to remove their oils.

הנסרים – boards that we place clothing on them.

Introduction Mishnah five discusses what is sold with an olive press and mishnah six discusses what is sold with a bath house.

הספסלים – that we sit upon them. But there are those who have the reading "ספלים"/bowls or basins – that one puts water in them to wash.

If a man sold a bath house, he has not sold the planks or the benches or the curtains. But if he had said: “It and all that is in it”, all these are sold also. In neither case has he sold the water containers or the stores of wood. In the first section we learn that when someone sells a bath house, the planks which serve as the floor of the bath house, the benches and the curtains are not included in the sale. Only if he stated that he was selling all that is in the bath house are these items considered part of the sale. In any case the water containers and stores of wood are not considered to be part of the bath house and are therefore not sold with it, even if he stated that he was selling all that is in the bath house.

וילאות – curtain opposite the opening. Another interpretation: wrapping cloth that one uses to dry off. And there are those who say that it is a petticoat/breach-cloth in which we cover with the genitals when sitting in the bathhouse.

מגורות של מים – pools that pour water into the bathhouse.

אוצרות של עצים – that warm up the bathhouse.

מכר בתים – and all the more so, courtyards which are the essence of the city.

Introduction Mishnah seven discusses what is sold as part of a town, if one should sell the town without specifying what is included in the sale.

בית השלחין – gardens and orchards that belong to the city.

If a man sold a town, he has also sold the houses, cisterns, trenches, caves, bath houses, dovecotes, olive presses, and irrigated fields, but not the movable property. But if he had said: “It and all that is in it”, even if cattle and slaves were in it, all of these are sold. Rabban Shimon ben Gamaliel says: “If a man sold a town he has also sold the town watchman.” As we have learned on several occasions in our chapter, we learn in mishnah seven that when a person sells a piece of property, he sells only the parts of that property that are fixed in their place. In this case, when a person sells a town, included in the sale are all of the fixed institutions of that town, such as the houses and the commercial institutions. If he wishes to sell the movable property as well, such as the animals and the slaves, he must specify that he is selling “it and all that is in it”. In that case, he has sold even the cattle and the slaves. Rabban Shimon ben Gamaliel disagrees slightly with the previous opinion. According to him when a person sells a town he sells the town watchman, presumably a slave, as well.

אבל לא המטלטלין – utensils that are used such as a key, a woman’s work basket and similar kinds of things, and all the more so, that he did not sell wheat and barley.

Questions for Further Thought:
• Why might Rabban Shimon ben Gamaliel hold that when a person sells a town he sells the town watchman but not other slaves?

הרי כולן מכורים – even slaves and animals that are movables that are unsteady. And, all the more so, wheat and barley that are movables that are not unsteady.

הסנטר – the slave appointed to guard the city. But the Halakha is not according to Rabban Shimon ben Gamaliel.

האבנים שהם לצורכה – to make a fence.

Introduction Mishnah eight discusses what is sold as part of a field.

ואת הקנים – that we tie up the vines with them.

If a man sold a field he has also sold the stones that are necessary to it, and the canes in a vineyard that are necessary to it, and its unreaped crop, and a partition of reed which covers less than a quarter-kav’s space of ground, and the watchman’s hut if it was fastened down with mortar, and ungrafted carob trees and young sycamores. This mishnah lists the things that are sold with a field. Tomorrow, in mishnah nine we will learn a long list of things that are not sold with a field. The list of things that are sold with a field includes things that are a necessary part of the maintenance of the field such as the stones used for fences and the canes used in a vineyard to grow the vines. It also includes the produce still attached to the ground and similarly the watchman’s hut if it was attached to the ground. [Note: there are other versions of this line concerning the watchman’s hut]. It also includes some small, as of yet insignificant trees as well as an insignificant portion of a reed partition. Since these things are not significant in and of themselves they become included as part of the field.

ואת מחיצת הקנים – many canes grow on one stem/stalk when it is less than a piece of ground of the capacity of a one-fourth of a Kab of seed, therefore it is neutralized concerning the field.

שומרה – a guard booth that is attached to the ground with plaster.

ואת החרוב – in its youth when they are not yet engrafted and when they cause damage when they grow strong and it is engrafted, and it has name of its own, and is not neutralized concerning the field.

ואת בתולת השקמה – in its youth before they cut its branches or when it causes damage, we cut the ranches that have grown a great deal in their place, and it is called the trunk of the sycamore tree.

לא מכר את מחיצת הקנים [וכו'] – for all of these are considered as a field [on its own].

Introduction Mishnah nine continues the discussion began in mishnah eight, what is sold as part of the sale of a field.

לא מכר את בור – even though he sold him the field, these are not sold.

Since this is an extremely long mishnah we will explain it section by section.

צריך המוכר ליקח לו דרך מן הלוקח – to go to the cistern and to the wine-press, for he sells with good-will as I have explained above (see Tractate Bava Batra, Chapter 4, Mishnah 2).

But [one who sold a field] has not sold the stones that are not necessary to it or the canes in a vineyard that are not necessary to it or the produce that is already picked from the ground. But if he had said, “It and all that is in it” all of these are sold also. But in neither case has he sold any partition of reeds that covers a quarter-kav’s space of ground, or the watchman’s hut if it was not fastened down with mortar, or grafted carob trees or cropped sycamores, or any cistern or winepress or dovecote, whether they are lying waste or in use. In the previous mishnah we learned what things are sold as part of a field and now in our mishnah we learn the opposite categories, things that are not sold as part of a field. Anything that is not necessary for the maintenance of the field is not sold with it, such as stones not used as part of a fence or canes in a vineyard not used for the vines. Picked produce is not considered part of the field. If the seller had specified that he was selling all that was in the field than he has sold the preceding items but he has still not sold the partition of reeds that is of significant size, nor the watchman’s house which is not attached to the ground. Since these items are separate from the field they are not sold with the field and are not considered to be “in the field”. He also has not sold the grafted carob or the cropped sycamore. These are more important than the ungrafted carob and the young sycamore that are sold with the field, as we learned in mishnah eight. Since they are important, they must be sold on their own. Finally he has not sold any of the major structures which may be in the field, such as a cistern for storing water, a wine press and a dovecote. These are not sold even if they are not in use.

נתן את כולם – and even to one who stated that he sells with ill-will, he sells it, and the purchaser must buy a right of way [when] he sold him one of these kind, and leaves the field to himself. Especially when he sells as we state here, because the purchaser can make conditions and explanations, for since he didn’t make a condition, he doesn’t lose out. But regarding a person who gives, when he receives the gift, he is embarrassed to state to the giver – “explain to me what you are giving me.” We don’t say that when he doesn’t explain, he is the one who loses, but we say is that he gave it to him with good will, and the recipient of the gift does not have to buy a right of way, and similarly, all of these things that we have stated above, he didn’t sell because they are not included in the field and even those things that are not included – everything that is within it, such as a carob or a fully grown sycamore tree and the cistern and the wine-press. If he gave [the field as a gift], he gave him everything, because with good well is too much of what he gives.

And [the seller] must purchase [from the buyer] a way thereto, according to Rabbi Akiva. But the sages say: “He need not.” And Rabbi Akiva agrees that if he had said, “Excepting these”, he need not buy himself a way thereto. If he had sold them (the cistern, winepress or dovecote) to another, Rabbi Akiva says: “He [that bought them] need not buy himself a way thereto. But the Sages say: “He must buy himself a way thereto.” In this section we learn of a dispute between Rabbi Akiva and the other sages regarding the necessity for a seller to buy a path to reach his cistern, wine press or dovecote which are on the field he just sold. According to Rabbi Akiva the seller must buy a path from the buyer; according to the sages he need not. We also learn of the opposite case, where the seller sold a cistern, wine press or dovecote but did not sell the field. According to Rabbi Akiva in such a case the buyer need not buy a path from the seller; according to the sages he must. This entire section was taught in mishnah two of our chapter and there we explained it in greater depth.

זכו בשדה זכו בכולן – even a cistern and a wine-press and a dovecote that are in the field, because each one merits with its own and it is removed from his fellow completely.

When is this so? With regards to he that sells his field. But if he gives it as a gift, he gives everything that is in it. If brothers who divided [an inheritance] came into possession of a field, they come into possession of everything that is in it. If a man secured title by possession of the property of a convert, and secured title by possession of the [convert’s] field, he secures title to everything that is in it. If a man dedicated a field [to the Temple] he has dedicated everything in it. Rabbi Shimon says: “If a man dedicated a field, he has dedicated only the grafted carob trees and cropped sycamores.” This section states that all that we have learned in the previous parts of the mishnah is true only when a person sells a piece of land to another. However, if he were to give the land to another person as a gift, we assume that he is giving not only the land but all of the things in it as well. This is true even though he does not specify that he is giving all that is in it. Furthermore, when brothers inherit land, they also inherit all that is on the land. When a person secures property that belonged to a convert who died without inheritors, he too secures not only the land but all that is in it. [A convert’s non-Jewish family do not inherit him. Therefore if he dies without children his property will not go to any inheritors.] Finally, when one dedicates a piece of land to the Temple, we assume that he is dedicating not just the land, but all that is in it. Over this last detail Rabbi Eliezer disagrees. According to him when a person dedicates a piece of land he is only dedicating the trees which receive their water and nutrients directly from the land. All of the other things are not part of his dedication to the Temple.

החזיק בכולם – And even though that a carob [tree] and a sycamore [tree] are not neglected regarding the field, they are like two fields, and there is pathway between them and if he gained possession of one of them, he bought its neighbor.

Questions for Further Thought:
• Section 1b: Why does the mishnah need to emphasize that cisterns, wine presses and dovecotes are not sold with a field no matter if they lie in waste or are in use? What might you have thought had the mishnah not included this line?
• Section 3: Why is there a difference between one who sells a piece of land to another and one who gives it away?

הקדיש כולם – when he dedicates it [to the Temple], he dedicates it with good will.

לא הקדיש אלא חרוב – from all of these that are mentioned in our Mishnah, regarding a sale, he did not sell, regarding devoting to the Temple, he did not devote, for the knowledge of the one who dedicates is like the knowledge of the sell, except for the grafted carob tree and the fully grown sycamore tree, and even though that the sale was not a sale, with a dedication it is sanctified, and the reason is that since from a dedicated field, it absorbs.