MISHNAH: One who sells a house [“House” here means “apartment, ground floor apartment”, cf. Bava meṣia‘ 10:1, Note 1, Nedarim 7:4, Note 47. This and the next three Chapters spell out the standard conditions of a contract. Any intended deviation from these has to be written into the sales contract.] did not sell the shed [A building ancillary to the main building (1K. 6:5,6,10). According to Maimonides it is a paved space surrounding the building.] even if it opened into it, nor the room which is in its interior [A storage room in the central court.] , nor the roof if it has a railing ten handbreadths high [Then it is accessible to be used (Deut. 22:8). It may be accessed from outside the house by a ladder.] . Rebbi Jehudah says, if its entry point is shaped like a door it is not sold even if its railing is not ten handbreadths high.
HALAKHAH: “One who sells a house,” etc. Rebbi Naḥum in the name of Rebbi Ḥiyya bar Abba: Only if it [A shed not covering at least 16 square cubits is not considered an independent building; it would be included in a contract to sell the adjacent apartment. In measurements, feminine numbers refer to cubits, masculine to handbreadths.] is four by four [cubits] and ten [handbreadths] high, and only if it is roofed and waterproofed [So it can be used year-round.] . Rebbi Ze‘ira told them, did Rebbi Ḥiyya bar Abba explain all this to you [In the Babli, 61a, Mar Zuṭra only stipulates the first of R. Ḥiyya bar Abba’s four conditions.] ?
“Nor the roof if it has a railing ten handbreadths high.” Is a railing the last word? If it was surrounded by back walls of houses, if there were pillars and wooden superstructures [Possibly Latin columnas, acc. pl. of columna, “projecting object, column, pillar, post” (Krauss).] on top of them [If the railing is unnecessary because it is already provided automatically by the surrounding buildings.] ? Let us hear from the following: “Rebbi Jehudah says, if its entry point is shaped like a door it is not sold even if its railing is not ten handbreadths high.” They said, only if it has a railing ten handbreadths high [Since the anonymous majority rejects R. Jehudah’s rule it follows that for them a usable roof is sold with the house below if and only if it is accessible from the house by a door.] .
MISHNAH: Neither the cistern nor the cellar [This is a continuation of Mishnah 1. A sale contract for a house which does not mention either the cistern or the cellar, a masonry cavity used for storing wine or grain, does not include these items.] even though he wrote over to him “its bottom and height,” and he has to buy himself access [If the seller wants to use cistern or cellar, he has to buy access from the buyer, the new owner of the surrounding area.] , the words of Rebbi Aqiba, but the Sages say that he does not have to buy himself access [They hold that nobody wants to make a contract which will hurt himself.] . Rebbi Aqiba agrees that if he said “except these” [If cistern and/or cellar are mentioned as excluded in the sales contract.] , he does not have to buy himself access. If he sold them [A person sold cistern or cellar to a third party while retaining ownership of his house and courtyard. This part of the Mishnah is quoted in Ketubot 13:7, Notes 112–115.] to another person, Rebbi Aqiba said, he does not have to buy access [In this situation, he adopts the reasoning of the Sages in the preceding case.] , but the Sages say, he has to buy access [They hold that (particularly in an inflationary environment) a person may buy real estate purely as an investment without intention of using it personally. Therefore, nothing is sold which is not spelled out in the contract.] .
HALAKHAH: “Neither the cistern,” etc. Then why did he write “its bottom and height”? That if he wants to dig down, he may dig down and if he wants to increase its height, he may increase its height [Tosephta 3:1, Babli 63b. It is necessary to convey the rights to the ground and the airspace separately. Compare Greek contracts which mention κάτω, ἄνω “downwards, upwards” cf. A. Gulak, Das Urkundenwesen im Talmud im Lichte der griechisch-aegyptischen Papyri und des griechischen und römischen Rechts, Jerusalem 1935 (Hebrew edition 1994 by Ranon Katzoff).] . Rav Abba bar Rav Huna in the name of Rav: Practice follows Rebbi Aqiba in our version which is following the rabbis in Rebbi Ḥiyya’s version. Rebbi Ze‘ira, Rav Jeremiah in the name of Rav: Practice follows Rebbi Aqiba in Rebbi Ḥiyya’s version which is following the rabbis in the Babylonians’ version [The same statements by Rav Huna and Rav Jeremiah are in the Babli, 64b/65a, which notes that there are opposite traditions about the possible requirement of providing separate contracts for access. The problem of access is not mentioned in the Tosephta, so it is not clear which version our Mishnah represents. E formulates: “R. Ze‘ura in the name of Rav: Rebbi Aqiba and Rebbi Ḥiyya parallel the Babylonian rabbis.”] .
[This is a shortened version of a paragraph in Ketubot 13:7, Notes 111–116. The Mishnah there refers to the case when the access path to a field disappeared in the surrounding property of a single owner while this field’s owner was on a prolonged absence overseas; Admon holds that the owner may choose for himself a short path through the other’s domain while the Sages hold that he has to buy access or fly through the air.] There, they said: Admon and Rebbi Aqiba. Rebbi La said, they disagree when nothing was specified. Where do we hold? If it is obvious that access was included, everybody agrees that he does not have to pay for access. If it is obvious that access was not included, everybody agrees that he has to pay for access. But we must hold that nothing was specified. Then Rebbi Aqiba said, he does not have to buy access, but the rabbis say, he does have to buy access.
MISHNAH: He who sold a house sold the door [The door, while movable, is permanently connected to the building. But the key is removable. Anything built-in is sold, anything movable is not sold.] but not the key. He sold a built-in mortar but not a movable one. He sold the pine cone but not the enclosure [These two terms, referring to the grain mill, are explained in Chapter 2, Notes 17,18.] . He sold the oven and the cooking stove [This is the reading of the Yerushalmi, Maimonides’s autograph, and the Mishnah mss. in the Maimonides tradition. In the Babli and the Mishnah mss. of the Babylonian tradition: “Neither the oven nor the cooking stove.” As explained in Halakhah 2:1, a (movable) oven or stove may be used inside a house only if it sits on a masonry basis. Therefore it is clear that the bases for oven or stove are sold; oven and stove themselves are not sold. Both versions lead to the same result.] . But if he said to him, “it and all it contains,” all is sold.
HALAKHAH: “He who sold a house,” etc. So is the Mishnah: He sold the hewn mortar but not the affixed one [The same text is in the Babli, 65b. There, the commentary ascribed to R. Gershom gives the correct interpretation. A mortar hewn into rock is clearly part of the house and cannot be removed. Any mortar brought from the outside, even if it was permanently affixed to the house, can be removed and therefore is not part of the building which was sold.] .
MISHNAH: He who sells a courtyard [If a person be able to sell a courtyard, clearly he is the sole proprietor. In common speech, if one refers to “a courtyard” one understands the compound, all the houses accessible from the courtyard.] sold houses, cisterns, ditches, and caves but nothing movable. But if he said to him, “it and all it contains,” all is sold. In neither case did he sell the bath house or the olive press standing in it [Since very few courtyards contain either a bathhouse or an olive press, the person acquiring the courtyard will not think of these unless they are mentioned in the contract.] . Rebbi Eliezer says, he who sells a courtyard only sold its airspace [This means, the area exposed to the sky, nothing built-up, since only the open area is called “courtyard” in exact speech. M. Gil [(1977) 46 תרביץ] reads the sentence as: “He who sells a compound only sells its door.”] .
HALAKHAH: “He who sells a courtyard,” etc. Rebbi Isaac asked: According to the rabbis, he who sells a courtyard without specifications sold houses, cisterns, ditches, and caves but nothing movable. Or maybe he also sold movables [He asks how the Mishnah should be understood. Is it to be understood the way it was translated, or does it mean that if he indicated that he was selling the courtyard together with the buildings bordering on it, then by implication he excluded movables, but if he mentioned only the courtyard, everything, including movables, was included? The same question may be asked about the formulation of R. Eliezer’s statement.] ? Rebbi Isaac asked: According to Rebbi Eliezer, he who sells a courtyard without specifications only sold the airspace. But if he said, “it and all it contains,” he sold houses, cisterns, ditches, and caves but nothing movable. Or maybe he also sold movables? Rebbi Joḥanan said, the following I brought from the House of Levi [Tosephta 3:1, Babli 67a.] : “If there were (courtyards) [Reading of L.] [stores] [Reading of E, the Constantinople edition, the Tosephta, and the Babli; required by the context.] open to the inside [Accessible to buyers only from the courtyard.] , they are sold; to the outside, they are not sold; to the inside and the outside, they are all sold.”
MISHNAH: He who sells an olive-press building sold the lower stone of the olive mill [It is called "sea” similar to the “sea” constructed by Solomon in his Temple (1K. 7:44), shaped like a bowl to collect the oil which will drip from the olives.] , the upper stone [The technical terms in the Mishnah are translated following Maimonides’s Mishnah Commentary.] , and the scaffolding for the beam of the press, but he sold neither the planks, [Maimonides reads הכידין, the Babli העכירין. The planks cover the olives and are pressed down by the beam moved by the wheel.] nor the wheel, nor the beam. But if he said to him, “it and all it contains,” all is sold. Rebbi Eliezer said, he who sells an olive-press building sold the beam [Since without a beam there is no olive press as stated in the Halakhah (and the Babli, 67b).] .
HALAKHAH: “He who sells an olive-press,” etc. In fact, if it does not have a beam, it is not called an olive press [Since without a beam there is no olive press as stated in the Halakhah (and the Babli, 67b).] . You would say, who stated this? Rebbi Eliezer, since it was stated in the name of Rebbi Eliezer: [Tosephta 3:2, Babli 67b; anonymous in both sources.] “He who sells an olive-press building sold the vats, the basket weaves [Explanation of Rashbam. These are mats strung around the olive press to hold the olives together during the crushing process.] , and the breakstones [According to the Babli, 67b, מפרכת is synonymous with ממל.] , and the lower millstone but not the upper one [Built-in mills are sold, movable ones not.] , nor the sacks nor the bags [Greek μάρσιππος, ὁ, “bag, pouch”, Latin marsupium, marsuppium, -ii.] it contains. But if he said to him, ‘it and all it contains,…’ [One has to add: all is sold.] In neither case did he sell the paved space surrounding the building [A building ancillary to the main building (1K. 6:5,6,10). According to Maimonides it is a paved space surrounding the building.] , or the [ditches] [One has to read שיחין for שבוין and החדותין for החרורין, cf. Mishnah 1 (S. Lieberman).] , or the [cellars] [One has to read שיחין for שבוין and החדותין for החרורין, cf. Mishnah 1 (S. Lieberman).] .”
MISHNAH: He who sells a bathhouse sold neither the planks [According to Rashbam, the planks to walk on in the wet heated sauna. According to Maimonides, planks to deposit one’s clothes.] nor the stools [Latin subsellium, to sit on in the sauna.] , nor the bath utensils [Latin balnearia, -orum, “utensils, implements for bathing”.] . But if he said to him, “it and all it contains,” all is sold. In neither case did he sell the storage ponds of water or the stores of wood [To heat the thermal bath.] .
HALAKHAH: “He who sells a bathhouse,” etc. It was stated [Tosephta 3:3; cf. Babli 67b.] : “He who sells a bathhouse sold the inner and the outer rooms [In the inner rooms, people are naked; in the outer rooms they are dressed.] , the basilica [A large room supported by pillars.] , the heating chamber, and the storekeeper’s [Latin horrearius “superintendent of the storehouse, magazine” (E. G.). In the Tosephta: האולייריןolearii “the oil sellers”, cf. Berakhot 2:1, Note 94. In the Babli בית הוילאות “room of curtains”. All commentators read the Tosephta into the Yerushalmi.] chamber, but not the chests nor the boiler [E adds: רִבִּי שִׁמְעוֹן בֶּן אֶלְעָזָר אוֹמֵר מָכַר אֶת הַיּוֹרֶה. “Rebbi Simeon ben Eleazar said, he sold the boiler.”] . Rebbi Simeon ben Eleazar said, the place of the bath attendant [Latin balneator “bathkeeper”, who collects the fee and hands out the bath towels.] is sold; the place of the storekeeper is not sold. But if he said to him, ‘it and all it contains’? Even if he said to him, ‘it and all it contains’ [In this case, the required formula is different. In the Tosephta, the wording is: But if he said to him, ‘it and all it contains’, all is sold. Even if he said to him, ‘it and all it contains’ he did not sell the water ponds …] . In neither case did he sell the water ponds which he uses both in summer and in winter or the room in which wood is stored. But if he said to him, ‘it and all its appurtenances,’ all these are sold.”
MISHNAH: He who sells a village sold houses, cisterns, ditches and caverns, bath houses and dovecots, the oil press and irrigated lots but not movables. But if he said to him, it and all that is in it, even if there were animals and slaves there, all of them are sold. Rabban Simeon ben Gamliel says, he who sells a village sold the steward.
HALAKHAH: “He who sells a village,” etc. It was stated [Tosephta 3:5; Babli 68b.] : “He who sells a village. Rabban Simeon ben Gamliel says, he who sells a village sold the steward but did not sell the administrator [A slave trained in bookkeeping is too valuable to be sold as part of a package; cf. Bava meṣia‘ 9:1, Note 11. (In E: האונקומוס).] . But if he said to him, ‘it and all it contains’? Even if he said to him, ‘it and all it contains’ [In this case, the required formula is different. In the Tosephta, the wording is: But if he said to him, ‘it and all it contains’, all is sold. Even if he said to him, ‘it and all it contains’ he did not sell the water ponds …] . In neither case did he sell ŝirah and its dependencies, and hard rocks hewn from it [Some commentators read with Babli and Tosephta : וְהַחֳרָשִׁים הַמּוּקְצִין מִמֶּנָּה “forests separated from it.”] , and preserves [Latin vivarium.] of wild animals, birds, and fish.” Ŝirah means outlying houses [The LXX translate Jos. 15:28: וּבְאֵר שֶׁבַע וּבִזְיוֹתְיָה as καὶ Βηρσαβεε καὶ αἱ κῶμαι αὐτῶν καὶ αἱ ἐπαύλεις αὐτῶν “and Beer Sheba and its walls and its isolated houses.” If וּבִזְיוֹתֶיהָ is taken as an Aramaism, no emendation of the consonantal text is needed.] , dependencies are hamlets. Its part in ocean or river [Ocean beach or fishing rights in the river.] , there are Tannaїm who state, it is sold, and there are Tannaїm who state, it is not sold. Rav Ḥisda said, he who says, it is sold, as long as it is within its domain [In the formulation of the Babli, whether doors open to beach or river or do not.] ; he who says, it is not sold, if it is not within its domain.
MISHNAH: He who sells a field sold the stones which are needed for it [For fencing.] , and the posts in a vineyard which are needed for it [To support the vines.] , and grain standing on the ground, and a reed fence taking up less than a bet rova‘, and a watchman’s hut not made with mortar, and a carob tree not yet grafted, and a virgin sycamore tree [The last two are young trees whose roots have not yet spread; therefore they are not included if their place was not sold. But an older carob tree grafted for better yield and a sycamore already cut once and now held for the production of logs (an “anvil sycamore”) have large systems of roots spreading wide; they become part of the field.] . But he sold neither the stones which are not needed for it, nor the posts in a vineyard which are not needed for it, nor grain harvested from the ground. But if he said to him, “it and all it contains,” all is sold. In no case did he sell either a reed fence taking up more than a bet rova‘ [114+ square cubits; the reeds themselves become a cash crop.] , or a watchman’s hut made with mortar [Which is valuable as dwelling by itself.] , or a grafted carob tree, or an anvil sycamore tree [The last two are young trees whose roots have not yet spread; therefore they are not included if their place was not sold. But an older carob tree grafted for better yield and a sycamore already cut once and now held for the production of logs (an “anvil sycamore”) have large systems of roots spreading wide; they become part of the field.] . Neither the cistern, nor the wine press, nor a dovecote [All of these are not intrinsically connected with a field.] whether deserted or intact; and he has to buy himself access [If the seller wants to use cistern or cellar, he has to buy access from the buyer, the new owner of the surrounding area.] , the words of Rebbi Aqiba; but the Sages say that he does not not have to buy himself access [They hold that nobody wants to make a contract which will hurt himself.] . Rebbi Aqiba agrees that if he said “except these” [If cistern and/or cellar are mentioned as excluded in the sales contract.] , he does not not have to buy himself access. If he sold them [A person sold cistern or cellar to a third party while retaining ownership of his house and courtyard. This part of the Mishnah is quoted in Ketubot 13:7, Notes 112–115.] to another person, Rebbi Aqiba said, he does not have to buy access [In this situation, he adopts the reasoning of the Sages in the preceding case.] , but the Sages say, he does have to buy access [They hold that (particularly in an inflationary environment) a person may buy real estate purely as an investment without intention of using it personally. Therefore, nothing is sold which is not spelled out in the contract.] . When has this been said? For the seller. But one who gives a gift, gives everything [A gift is supposed to be given in a magnanimous spirit.] . Brothers who divided [an inheritance]: if one acquired a field he acquired everything [Family relations are helped by clean divisions of property.] . Somebody taking possession of a proselyte’s property: if he took possession of a field, he took possession of everything [Since the proselyte died without relatives who could have inherited from him, the person who takes possession of his estate has no competitors with whom to share.] . If somebody dedicated a field to the Temple, he dedicated everything; Rebbi Simeon says that he who dedicated a field to the Temple only dedicated a grafted carob tree and an anvil sycamore tree [The last two are young trees whose roots have not yet spread; therefore they are not included if their place was not sold. But an older carob tree grafted for better yield and a sycamore already cut once and now held for the production of logs (an “anvil sycamore”) have large systems of roots spreading wide; they become part of the field.] [But nothing not included in the definition of “a field”.] .
HALAKHAH: 8: “He who sells a field,” etc. Halakhah 9: “But he sold neither,” etc. Halakhah 10: “Neither the cistern,” etc. Halakhah 11: “If somebody dedicated a field to the Temple,” etc. In the House of Rebbi Yannai they said, poles for vines [This explains what is meant by “posts in a vineyard” in Mishnah 8; the same explanation is given in the Babli, 69a, where Rashbam explains that these poles in French are called palis.] . The Elder Rebbi Ḥiyya asked, if there were split rings to select? [This sentence is unintelligible. The thrust of the other two questions is very clear. If walls were covered with marble plates or windows framed with wood frames, the covering and the frames would be sold with the house. But what is the status of material prepared for installation which was not yet installed at the time of the sale? R. Ḥiyya seems to ask a similar question relative to agricultural property. חוּליה means “ring”, from the root חלל, חול “to describe a circle”, but it is not clear that חליה is the same as חוליה.The translation in the text follows R. Eliahu Fulda, not to leave the sentence untranslated. He reads חליות מחולקות as “half circles” formed by pliable twigs, such as willow branches, with both ends planted on the ground to support branches of fruit trees heavy with fruit. He also derives the hapax ברות from ברר “to select”. [Starting with the Constantinople edition (1622), all printed editions read לכרות “to cut off”, which replaces an unknown word by one well-known but devoid of sense in the context.] But one could as well read ברות as Arabic بُرَاة “hunter’s hut” and refer the question to the watchman’s hut and ask about the status of such a hut built with split rings formed of any material. One also could read חַלִּיּוֹת מְחוּלָּקוֹת לְבָרוֹת “chopped herbs (خَلٌى) for healing”, whether these have the status of cut grain. Moïse Schwab translates: “S’il y a des morceaux de joncs divisées pour séparer les vignes, sont-ils tous considérés comme nécessaires”; it is difficult to read this into the text.] Rebbi Isaac bar Tebelai asked, if there were marble plates [Greek τάβλα, Latin tabula.] for walls [In the Babli, 69a, a similar question is asked about stones prepared to be used to make a fence around an agricultural property but not yet displayed; it is determined that their status in a sale depends on a difference of opinion between R. Meїr and the anonymous majority.] ? Rebbi Yudan ben Rebbi Ismael asked: If there were split rods to frame windows [In the Babli, 69a, the question is asked by R. Ze‘ira about finished wood frames for windows (slits in the wall without glass) which are not structural but purely ornamental; the question is not answered.] ?
Rebbi Ḥiyya in the name of Rebbi Joḥanan: A vegetable bed which is six by six [handbreadths] [In the Babli, 69a, the question is asked by R. Ze‘ira about finished wood frames for windows (slits in the wall without glass) which are not structural but purely ornamental; the question is not answered.] and has its own name [For example, the name of the spice which usually is grown there such as “the bed of fenugreek”.] is not sold [Unless it is specifically mentioned in a sales contract of agricultural property.] . Rebbi Joḥanan said: There is disagreement between Rebbi Ismael ben Rebbi Yose and the rabbis about one who bought an anvil sycamore [The last two are young trees whose roots have not yet spread; therefore they are not included if their place was not sold. But an older carob tree grafted for better yield and a sycamore already cut once and now held for the production of logs (an “anvil sycamore”) have large systems of roots spreading wide; they become part of the field.] on another’s property. Rebbi Ismael ben Rebbi Yose says, he acquired the land. The rabbis say, he did not acquire [As mentioned in Note 64, the anvil sycamore spreads its root widely. If the roots of the tree were restricted to the earth on which it stands, it could not live. In practical terms, if the owner of the tree is the owner of the land, he may plant a new tree on its spot if the original tree dies; if he is not the owner of the land, he cannot plant a replacement. In view of Mishnah 5:5, there really should be no problem about a single tree.] . Rebbi Ḥiyya bar Abba asked: If somebody sold all trees but reserved for himself an anvil sycamore. In the opinion of Rebbi Ismael ben Rebbi Yose, he acquired the land [He did not acquire it but never gave up his ownership.] . In the opinion of the rabbis, he did not acquire the land [He gave up ownership.] . Rebbi Isaac bar Tebelai asked: If somebody sold all trees and an olive tree at place X, are all olive trees at that place sold [If an unspecified tree was sold and the seller had more than one tree at place X, the buyer might lay claim to any one of them. The treatment of the case is in dispute between R. Meïr and R. Yose, cf. Qiddušin 3:10.] ? Rebbi Yudan ben Rebbi Ismael asked: If somebody bought three groups of reeds, did he buy the greatest cedar in the Land of Israel [If he bought reeds that cover more than a bet rova‘, did he acquire only the reeds or everything that grows among them?] ?
“When has this been said? For the seller. But one who gives a gift gives everything.” What is the difference between a seller and the giver of a gift? Rebbi Abba bar Ṭebelai in the name of Rav: Because the giver of a gift usually is magnanimous [In the Babli, 71a, this is the conclusion reached after discussion.] . Rebbi Samuel ben Rav Naḥman in the name of Rebbi Joḥanan: Because buyers care about minutiae [Since the buyer gives the money, he can be specific and insist to spell out in the contract what he wants, but the recipient of a gift has to accept what he is given. Therefore, a sales contract has to be interpreted exactly but in the case of a gift it is up to the court to guess the donor’s intention.] . What is the difference between these opinions? A dedication to the Temple. He who says, because the giver of a gift usually is magnanimous, also the person vowing to the Temple usually is magnanimous. But he who says, because buyers care about minutiae, what does he say about a dedication to the Temple? Let us hear from the following [E here has an additional text: נִיִשְׁמְעִינָהּ מֵהָדָא. הָאַחִין שֶׁחָֽלְקוּ זָכוּ בַשָּׂדֶה זָכוּ בְכוּלָּן. רִבִּי לָֽעְזָר שְׁאִיל. עַל כָּל־הַפֶּרֶק הוּשְּׁבָה אוֹ עַל הָרִאשׁוֹנָה הוּשְּׁבָה. “Let us hear from the following: ‘Brothers who divided [an inheritance], if they acquired a field they acquired everything.’ Rebbi Eleazar asked: Does this refer to the entire Chapter or only to the first mention?”] : “Brothers who divided [an inheritance], if one acquired a field he acquired everything. Somebody taking possession of the property of a convert aquired it; if he took possession of a field, he took possession of everything. If somebody dedicated a field to the Temple, he dedicated everything. Rebbi Simeon says that he who dedicated a field to the Temple, only dedicated a grafted carob tree and an old sycamore tree.” Because they nurse from Temple property [Babli 72b. He holds that a gift to the Temple has to be interpreted narrowly, like a sale. The exeption are trees with widespread roots which must be included, even against the giver’s wish, because of the severity of the sin of larceny from Temple property which would be committed if the donor profited from growth of the tree by the nutrients which its roots absorb from Temple property.] . Because he reserved access to himself? If he had not reserved access for himself, would they not feed from Temple property [The brother whose inheritance is accessible only through another brother’s property has the right of passage automatically, without specifically insisting on it at the time of the distribution, just as the anvil sycamore is part of Temple property even if the donor to the Temple does not specify it. Since the majority disagree with R. Simeon, they must hold that the donor to the Temple also is magnanimous.] ?