Bava Batra 61

המוכר את הבית לא מכר יציע ואף על פי שהיא פתוחה לתוכו ולא את החדר שלפנים הימנו ולא את הגג בזמן שיש לו מעקה גבוה עשרה טפחים רבי יהודה אומר אם יש לו צורת פתח אף על פי שאינו גבוה עשרה טפחים אינו מכור:

MISHNA: One who sells a house without specifying what is included in the sale has not sold the gallery, an extension built above or alongside the main building, and this is so even if the gallery is attached to the house and opens into it. Nor has he sold the room behind the house, even if it is accessible only from inside the house. He has also not sold the roof when it has a parapet ten handbreadths high, as such a roof is considered a separate entity and is therefore not included in the sale of the house. Rabbi Yehuda says: If the parapet has the form of a doorway, that is, if it consists of two upright posts with a beam crossing over them, then even if the parapet is not ten handbreadths high, the roof is not sold together with the house, unless it is specifically included in the sale.

גמ׳ מאי יציע הכא תרגימו אפתא רב יוסף אמר בדקא חלילה למאן דאמר אפתא לא מזדבנא כל שכן בדקא חלילה לא מזדבנא למאן דאמר בדקא חלילה אבל אפתא מזדבנא

GEMARA: What is a gallery? Here in Babylonia they interpreted this as referring to an attic [apta]. Rav Yosef said: It means a windowed structure [bidka ḥalila] attached to the main building. The Gemara notes that according to the one who says that an attic is not sold together with a house, all the more so is a windowed structure attached to the house not sold together with a house, as it is certainly considered a separate entity and not part of the main building. But according to the one who says that a gallery is a windowed structure attached to the house, it is only such a structure that is not included in the sale of the house, but an attic is sold together with a house.

תאני רב יוסף שלש שמות יש לו יציע צלע תא יציע דכתיב היציע התחתנה חמש באמה רחבה צלע דכתיב והצלעות צלע אל צלע שלש ושלשים פעמים תא דכתיב והתא קנה אחד ארך וקנה אחד רחב ובין התאים חמש אמות ואי בעית אימא מהכא כותל ההיכל שש והתא שש כותל התא חמש

Rav Yosef taught: A small structure attached to a building has three names in the Bible: Gallery [yatzia], side chamber [tzela], and cell [ta]. Such a structure is called a gallery, as it is written: “The bottommost gallery [hayyatzia] was five cubits wide” (I Kings 6:6). It is also called a side chamber, as it is written: “And the side chambers [vehatzelaot] were one over another, thirty-three times” (Ezekiel 41:6). Additionally, it is called a cell, as it is written: “And the cell [vehata] was one reed long, and one reed wide; and the space between the cells was five cubits” (Ezekiel 40:7). And if you wish, say instead that it can be seen that a small structure attached to a building is called a cell from here, as was taught in the mishna (Middot 4:7): The wall of the Sanctuary was six cubits wide, and the cell [vehata] in back of it was six cubits wide, and the wall of the cell was five cubits wide.

אמר מר זוטרא והוא דהוי ארבע אמות

§ Relating to the mishna’s statement that a gallery is not included in the sale of a house, Mar Zutra said: And that is the halakha only when the gallery has an area of at least four by four cubits.

אמר ליה רבינא למר זוטרא לדידך דאמרת עד דהוי ארבע אמות אלא מעתה גבי בור דתנן לא את הבור ולא את הדות אף על פי שכתב לו עומקא ורומא הכי נמי אי הוו ארבע אמות אין אי לא לא

Ravina said to Mar Zutra: According to your opinion, that you say a gallery is not excluded from the sale of a house unless it is at least four by four cubits in size, there is a difficulty. As if that is so, then with regard to the exclusion of a pit or a cistern from the sale of a house, about which we learned in a mishna (64a): One who sells a house has sold neither the pit nor the cistern, even if he writes for the buyer in the bill of sale that he is selling him the depth and the height of the house; so too, should we say that only if they have an area of at least four by four cubits, yes, they are excluded from the sale of the house, but if not, no, they are not excluded? This is difficult, as a pit is not four cubits wide, and consequently, it would never be excluded.

הכי השתא התם הא תשמישתא לחוד והא תשמישתא לחוד הכא אידי ואידי חדא תשמישתא היא אי הוי ארבע אמות חשיב ואי לא לא חשיב:

Mar Zutra responded: How can these cases be compared? There, in that mishna, this, the excavations, have a discrete use, to store water, and they cannot possibly be used as living quarters, and that, the house, has a discrete use, to serve as living quarters, and so they are considered separate entities even if the excavation is not four cubits wide. But here, in the case of a gallery, both this, the gallery, and that, the house, have the same use, and so if the gallery is at least four by four cubits it is deemed significant and considered a separate entity, but if it is not four by four cubits, it is not deemed significant in its own right, but simply another part of the house.

ולא את החדר שלפנים הימנו: השתא יציע לא מיזדבן חדר מיבעיא

The mishna teaches that one who sells a house without specifying what is included in the sale has not sold the gallery, nor has he sold the room behind the house, even if it is accessible only from it. The Gemara asks: Now that the mishna taught that a gallery is not sold along with the house, is it necessary to teach that a room behind the house is not included in such a sale?

לא צריכא דאף על גב דמצר ליה מצרי אבראי

No, this ruling is necessary to teach that the room behind the house is excluded from the sale of the house even if the seller delineated the boundaries of the house for the buyer in the bill of sale by listing places outside the room, e.g., noting the houses that border the property being sold. Even though this might suggest that the room is included in the sale, the mishna teaches that it is not.

כדרב נחמן דאמר רב נחמן אמר רבה בר אבוה המוכר בית לחבירו בבירה גדולה אף על פי שמצר לו מצרים החיצונים מצרים הרחיב לו

This is in accordance with the opinion of Rav Naḥman, as Rav Naḥman says that Rabba bar Avuh says: With regard to one who sells a residence to another in a large building [bira] containing several residences, even if he delineates for him the external boundaries of the large building, he did not sell him the entire building, but rather he enlarged upon the boundaries for him. That is, the seller did not mean to delineate the precise borders of what he was selling; rather, he delineated the boundaries in a broad manner, giving the general location of the specific residence subject to the transaction.

היכי דמי אילימא דקרו ליה לבית בית ולבירה בירה פשיטא בית זבין ליה בירה לא זבין ליה אלא דלבירה נמי קרו לה בית כוליה זבין ליה

With regard to Rav Naḥman’s statement, the Gemara inquires: What are the circumstances of the case? If we say that this is referring to a place where they call a residence a residence, and a building a building, and they always differentiate between the two terms, it is obvious that he did not intend to sell him the entire building but merely enlarged upon the boundaries for him, as he sold him a residence and did not sell him a large building. Rather, explain that this is referring to a place where they also call a building a residence. But in that case, why not say that the seller sold him the entire building, since he delineated the external boundaries of the large building?

לא צריכא דרובא קרו ליה לבית בית לבירה בירה ואיכא נמי דלבירה קרו ליה בית מהו דתימא כוליה זבין ליה קא משמע לן מדהוה ליה למכתב ולא שיירית בזביני אלין כלום ולא כתב שמע מינה שיורי שייר

The Gemara answers: No, Rav Naḥman’s ruling is necessary in a place where most of the people call a residence a residence, and a building they call a building, but there are also some people who call a building a residence. Lest you say that since the seller delineated the building’s external boundaries, this indicates that he meant to sell him the entire building, Rav Naḥman teaches us that this is not so. As, if the seller intended to sell him the entire building, he would have written in the bill of sale: And I have not withheld anything for myself in this sale, but if he did not write this clause, conclude from it that the seller withheld something for himself and did not mean to sell everything located within the delineated boundaries.

ואמר רב נחמן אמר רבה בר אבוה המוכר שדה לחבירו בבקעה גדולה אף על פי שמצר לו מצרים החיצונים מצרים הרחיב לו

And in a similar fashion, Rav Naḥman says that Rabba bar Avuh says: With regard to one who sells a field to another in a large expanse of fields, even if he delineates for him the external boundaries of the large expanse of fields he did not sell him the entire expanse of fields; rather, he enlarged upon the boundaries for him. That is, the seller did not mean to delineate the precise borders of what was being sold; rather, he delineated the boundaries in a broad manner, giving the general location of the particular field he was selling.

היכי דמי אילימא דקרו ליה לשדה שדה ולבקעה בקעה פשיטא שדה זבין ליה בקעה לא זבין ליה ואלא דלבקעה נמי קרו לה שדה כולה זבין ליה

The Gemara inquires: What are the circumstances of the case? If we say that this is referring to a place where they call a field a field, and an expanse of fields an expanse of fields, and always differentiate between the two terms, it is obvious the he did not intend to sell him the entire expanse of fields, as he sold him a field and did not sell him an expanse of fields. Rather, explain that this is referring to a place where they also call an expanse of fields a field. But in that case, why not say that the seller sold him the entire expanse of fields, since he delineated the external boundaries of the expanse of fields?

לא צריכא דאיכא דלשדה קרו ליה שדה ולבקעה בקעה ואיכא נמי דלבקעה קרו לה שדה מהו דתימא כוליה זבין ליה קא משמע לן מדהוה ליה למכתב ליה לא שיירית בזביני אלין קדמי כלום ולא כתב ליה שמע מינה שיורי שייר

The Gemara answers: No, Rav Naḥman’s ruling is necessary in a place where there are some people who call a field a field, and an expanse of fields they call an expanse of fields, but there are also some people who call an expanse of fields a field. Lest you say that since the seller delineated the expanse’s external boundaries, this indicates that he meant to sell him the entire expanse, Rav Naḥman teaches us that this is not so. As, if the seller intended to sell him the entire expanse, he would have written for him in the bill of sale: And I have not withheld anything for myself in this sale, but since he did not write this clause for him, conclude from it that the seller withheld something for himself and did not mean to sell everything located within the delineated boundaries.

וצריכא דאי אשמעינן בית משום דהא תשמישתא לחוד והא תשמישתא לחוד אבל בקעה דכולה חדא תשמישתא היא אימא כוליה זבין ליה

The Gemara notes: And it was necessary for Rav Naḥman to teach the halakha in both cases, even though the two rulings appear to be the same. As had he taught us the halakha only in the case of the residence, that he did not sell him the entire building even if he delineated the building’s external boundaries, I might have said that this is due to the fact that this, the residence, has a discrete use, separate from that of the rest of the building, and that, the building, has a discrete use. But as for an expanse of fields, all of which has a single use, since it can be sown with grain in its entirety, say that the seller sold him the entire expanse.

ואי אשמעינן בקעה משום דלא הוה ליה למימצר ליה אבל בית דהוה ליה למימצר ליה ולא מצר ליה כוליה זבין ליה צריכא

And had Rav Naḥman taught us the halakha only in the case of an expanse of fields, that he did not sell him the entire expanse even if he delineated its external boundaries, I might have said that this is due to the fact that the seller had no way to delineate the particular field’s boundaries, since all of the fields are similar, and they all belong to the seller. But as for a residence, with regard to which the seller had a way to delineate its borders, through the use of descriptive terms that would isolate it from the rest of the building, but he did not delineate them, I might say that he sold him the entire building. Therefore, it was necessary to mention both cases explicitly.

כמאן אזלא הא דאמר רב מרי בריה דבת שמואל (בר שילת) משמיה דאביי האי מאן דמזבני ליה מידי לחבריה צריך למכתב ליה לא שיירית בזביני אלין קדמי כלום כמאן כרב נחמן אמר רבה בר אבוה

The Gemara asks: In accordance with whose opinion is that which Rav Mari, son of the daughter of Shmuel, said in the name of Abaye: One who sells something to another must write for him in the bill of sale: I have not withheld anything for myself in this sale. In accordance with whose opinion is that? It is in accordance with the opinion of Rav Naḥman, who says that Rabba bar Avuh says that even when the seller delineates the boundaries of what he is selling, he does not necessarily mean to sell everything included within those boundaries. Inserting this clause in the bill of sale removes uncertainties that could lead to conflict.

ההוא דאמר ליה לחבריה ארעא דבי חייא מזבננא לך הואי ליה תרתי ארעתא דהוה מתקרין דבי חייא אמר רב אשי חדא אמר ליה תרתי לא אמר ליה

The Gemara relates: There was a certain man who said to another: I am selling you land of the house of Ḥiyya, but there were two plots of land that were called that of the house of Ḥiyya, and the Sages deliberated as to whether both were included in this sale or only one. Rav Ashi said: He said to him that he was selling him one plot of land, and he did not say to him that he was selling him two plots of land, as he employed a singular term. Therefore, only one is included in the sale.

ואי אמר ליה ארעתא סתמא מיעוט ארעתא שתים ואי אמר ליה כל ארעתא כל ארעתא דאית ליה לבר מבוסתני ופרדיסי ואי אמר ליה זיהרא אפילו בי בוסתני ופרדיסי לבר מבתי ועבדי

And if he said to him: I am selling you fields, without specifying how many, the minimum number of fields that would justify being called fields in the plural is two, and therefore the seller has to give the buyer only two of his fields, even if he owns many fields. And if he said to him: I am selling you all of my fields, what he means is that he is selling him all the fields that he owns, excluding his orchards [bustanei] and vineyards. And if he said to him: I am selling you my landed property, what he means is that he is selling him even his orchards and vineyards, but excluding his houses and Canaanite slaves.