Search

Bava Batra 63

Want to dedicate learning? Get started here:

podcast placeholder

0:00
0:00




Summary

If one says yachlok, divide my portion with…, the person gets half, but what is the law if one says “give a chelek, portion, to…? Ravina bar Kisi brings an answer from a braita which rules in a similar case that one gets a quarter as there is a doubt whether the intent was half or a bit and Sumchus rules that when there is money in question, the money is split it between the two parties.

A braita explains that a Levite can sell one property and stipulate that the owner give the seller the Levite tithes. How can one do this if it means selling something that does not yet exist? To answer this question, the Gemara assumes that the seller retains rights to part of the land. Reish Lakish infers from this braita the law for a different case when the seller says he/she is selling the house but retaining the upper floor, as both are cases where there is no real meaning to the statement and it is therefore applied to mean something else. Regarding the Levite, there is no way to retain future produce, so the seller must have meant the land itself. With the house, since there is no need to retain the upper floor, so it must have been referring to something else. Rav Zevid and Rav Pappa each provide different interpretations in the case of the house as to what Reish Lakish understood to be retained by the original owner – either to hang a beam from the roof into the airspace of the courtyard (Rav Zevid) or building rights to build on the roof if the current roof is destroyed (Rav Papa). The Gemara raises a difficulty with Rav Papa’s explanation as it is more intuitive to derive it from the next Mishna (Bava Batra 64a) than from the braita. Rav Dimi discusses the difference between a sale with no specification, one where it was stipulated that the buyer acquires the depths and the heights, and one where the buyer acquired from the depths of the earth to the height of the sky. What items are included in each case? The Gemara tries to prove his statement from the next Mishna, but then rejects the proof.

Today’s daily daf tools:

Bava Batra 63

וְלָא הִיא, דְּאָמַר רַב יֵימַר בַּר שֶׁלֶמְיָה: לְדִידִי מִפָּרְשָׁא לִי מִינֵּיהּ דְּאַבָּיֵי: בֵּין ״מֶצֶר אַרְעָא דְּמִינַּהּ פַּלְגָא״, וּבֵין ״מֶצֶר אַרְעָא דְּמִינַּהּ פְּסִיקָא״ – אִי אֲמַר לֵיהּ: ״אִלֵּין מִצְרָנַהָא״ – פַּלְגָא, לָא אֲמַר לֵיהּ: ״אִלֵּין מִצְרָנַהָא״ – תִּשְׁעָה קַבִּין.

But that is not so, as Rav Yeimar bar Shelemya said: The matter was explained to me by Abaye, as follows: Whether the seller writes with regard to the fourth boundary: The boundary of the field is the land through which the field is halved, or he writes: The boundary of the field is the land through which a plot can be set apart, if he said to the buyer: These are its boundaries, he has sold him half of the field. But if he did not say to the buyer: These are its boundaries, he has sold him only an area fit for sowing nine kav of seed.

פְּשִׁיטָא – אָמַר: ״יַחֲלוֹק פְּלוֹנִי בִּנְכָסַי״ – פַּלְגָא. ״תְּנוּ חֵלֶק לִפְלוֹנִי בִּנְכָסַי״ – מַאי?

§ The Gemara raises a question about a similar case: It is obvious that if one said: So-and-so should share in my property, he means to give him half of the property. If he said: Give so-and-so a portion of my property, what is the halakha? What portion of the property must he give him?

אָמַר רָבִינָא בַּר קִיסִי, תָּא שְׁמַע: דְּתַנְיָא, הָאוֹמֵר: ״תְּנוּ חֵלֶק לִפְלוֹנִי בְּבוֹר״ – סוֹמְכוֹס אוֹמֵר: אֵין פָּחוֹת מֵרְבִיעַ. ״לְחָבִית״ – אֵין פָּחוֹת מִשְּׁמִינִית. ״לִקְדֵרָה״ – אֵין פָּחוֹת מִשְּׁנֵים עָשָׂר. ״לְטָפִיחַ״ – אֵין פָּחוֹת מִשִּׁשָּׁה עָשָׂר.

Ravina bar Kisi said: Come and hear a proof concerning the halakha in this case, as it is taught in a baraita: With regard to one who says: Give so-and-so a portion of my cistern for his water needs, Sumakhos says: He must give him not less than one-quarter of the water in the cistern. If he qualifies his words and says: Give so-and-so a portion of my cistern’s water for his barrel, he must give him not less than one-eighth of the water. If he says: Give him a portion for his pot, he must give him not less than one-twelfth of the water. And if he says: Give him for his cup, he must give him not less than one-sixteenth of the water. In any event, this baraita indicates that the unqualified phrase: Give so-and-so a portion, should be understood to mean: Give him one-quarter.

תָּנוּ רַבָּנַן: בֶּן לֵוִי שֶׁמָּכַר שָׂדֶה לְיִשְׂרָאֵל, וְאָמַר לוֹ: ״עַל מְנָת שֶׁמַּעֲשֵׂר רִאשׁוֹן שֶׁלִּי״ – מַעֲשֵׂר רִאשׁוֹן שֶׁלּוֹ. וְאִם אָמַר: ״לִי וּלְבָנַיי״ – מֵת, יִתֵּן לְבָנָיו.

The Gemara now considers another case in which the seller withholds something for himself in a sale. The Sages taught in a baraita: With regard to a Levite who sold a field to an Israelite and said to him: I am selling you this field on the condition that the first tithe from the produce growing in the field, which must be given to a Levite, is mine, and it will be given to me every year and not to any other Levite, the first tithe is his. And if he said: I am selling you the field on the condition that the tithe will be given to me and to my sons, then if he dies, the buyer must give the tithe to his sons.

וְאִם אָמַר לוֹ: ״כׇּל זְמַן שֶׁהַשָּׂדֶה זוֹ בְּיָדְךָ״ – מְכָרָהּ וְחָזַר וּלְקָחָהּ, אֵין לוֹ עָלָיו כְּלוּם.

But if the seller said to the buyer: This stipulation will remain in force as long as this field is in your possession, then if the buyer sold it and afterward bought it back again, the seller has no claim on him. Since the field left the buyer’s possession in the interim, the seller no longer has a claim to the tithe.

אַמַּאי? אֵין אָדָם מַקְנֶה דָּבָר שֶׁלֹּא בָּא לָעוֹלָם! כֵּיוָן דְּאָמַר לֵיהּ: ״עַל מְנָת שֶׁמַּעֲשֵׂר רִאשׁוֹן שֶׁלִּי״ – שַׁיּוֹרֵי שַׁיְּירֵיהּ לִמְקוֹם מַעֲשֵׂר.

The Gemara challenges the halakha taught in the baraita: Why should the seller ever have a right to the tithe after he has sold the field? After all, a person cannot transfer ownership of an object that has not yet come into the world. How, then, can the seller acquire a portion of the produce that does not yet exist? The Gemara answers that since the seller said to the buyer: I am selling you this field on the condition that the first tithe is mine, it is as if he withheld the site where the tithe is grown for himself when he sold the field, and that site already exists.

אָמַר רֵישׁ לָקִישׁ: זֹאת אוֹמֶרֶת, הַמּוֹכֵר בַּיִת לַחֲבֵירוֹ, וְאָמַר לוֹ: ״עַל מְנָת שֶׁדְּיוֹטָא הָעֶלְיוֹנָה שֶׁלִּי״ – דְּיוֹטָא הָעֶלְיוֹנָה שֶׁלּוֹ.

Reish Lakish said: That is to say that with regard to one who sells a house to another and says to him: I am selling you this house on the condition that the upper story [deyota] is mine, the upper story is his.

לְמַאי הִלְכְתָא? רַב זְבִיד אָמַר: שֶׁאִם רָצָה לְהוֹצִיא בָּהּ זִיזִין, מוֹצִיא. רַב פָּפָּא אָמַר: שֶׁאִם רָצָה לִבְנוֹת עֲלִיָּיה עַל גַּבָּהּ, בּוֹנֶה.

With regard to what halakha did Reish Lakish say this? In any case the upper story is his, as when he sold the house, it was only the lower story that he sold to the buyer. Rav Zevid says: He said this to teach the halakha that if the seller wishes to extend from the upper story projections over the courtyard, which was included in the sale, he may extend them. Rav Pappa says: He said this to teach the halakha that if this upper story collapses and the seller wishes to build an upper story on top of it to replace it, he may build it.

בִּשְׁלָמָא לְרַב זְבִיד, הַיְינוּ דְּקָתָנֵי ״זֹאת אוֹמֶרֶת״; אֶלָּא לְרַב פָּפָּא, מַאי ״זֹאת אוֹמֶרֶת״? קַשְׁיָא.

The Gemara asks: Granted, according to Rav Zevid, this explanation is consistent with that which Reish Lakish teaches, which begins with: That is to say. As according to Rav Zevid, Reish Lakish infers from the ruling of the baraita about tithes that even though the seller of the house did not explicitly withhold anything for himself, the court interprets his use of his superfluous stipulation as an indication that he wished to withhold for himself the space over the courtyard for the projections. But according to Rav Pappa, what did Reish Lakish mean when he said his statement that begins with the phrase: That is to say? The seller’s right to rebuild the upper story after it collapses is not derived from the superfluous stipulation that he attached to the transaction, and it is not inferred from the baraita. The Gemara concludes: Indeed, Rav Pappa’s interpretation is difficult, as it does not account for the wording of Reish Lakish’s statement.

אָמַר רַב דִּימִי מִנְּהַרְדְּעָא: הַאי מַאן דִּמְזַבֵּין לֵיהּ בֵּיתָא לְחַבְרֵיהּ, אַף עַל גַּב דִּכְתַב לֵיהּ: ״עוּמְקָא וְרוּמָא״, צָרִיךְ לְמִכְתַּב לֵיהּ: ״קְנִי לָךְ מִתְּהוֹם אַרְעָא וְעַד רוּם רְקִיעָא״. מַאי טַעְמָא? דְּעוּמְקָא וְרוּמָא בִּסְתָמָא לָא קָנֵי; אַהֲנִי ״עוּמְקָא וְרוּמָא״ לְמִיקְנֵא עוּמְקָא וְרוּמָא, וְאַהֲנִי ״מִתְּהוֹם אַרְעָא וְעַד רוּם רְקִיעָא״ לְמִיקְנֵא בּוֹר וָדוּת וּמְחִילּוֹת.

§ The Gemara discusses what is included in the wordings of various contracts. Rav Dimi from Neharde’a said: Concerning this one who sells a house to another and wants the sale to include the entire property, even if he writes for the buyer in the bill of sale: I am selling you the depth and the height of the house, he must also write for him: Acquire for yourself the property from the depth of the earth up to the height of the sky. What is the reason for this addition? The reason is that the buyer does not acquire the depth and the height of the property without explicit specification, and therefore, unless the matter has been explicitly stipulated, the buyer may not dig under the house or build above it. The words: The depth and the height, effect the acquisition of the depth and the height of the house for the buyer, allowing him to dig below or build above the house. And the additional phrase: From the depth of the earth up to the height of the sky, effects the acquisition of the pit and the cistern and the tunnels associated with the house.

לֵימָא מְסַיַּיע לֵיהּ: וְלֹא אֶת הַבּוֹר וְלֹא אֶת הַדּוּת – אַף עַל פִּי שֶׁכָּתַב לוֹ ״עוּמְקָא וְרוּמָא״. וְאִי סָלְקָא דַּעְתָּךְ בִּסְתָמָא קָנֵי עוּמְקָא וְרוּמָא, לַיהֲנֵי ״עוּמְקָא וְרוּמָא״ לְמִיקְנֵא בּוֹר וָדוּת וּמְחִילּוֹת! דְּלָא כְּתַב לֵיהּ.

The Gemara proposes: Let us say that the mishna (64a) supports Rav Dimi’s opinion: 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. As if it enters your mind to say that the buyer acquires the depth and the height of the house even without the specification that the depth and the height of the house are included in the sale, let the phrase the depth and the height effect the acquisition of the pit and the cistern and the tunnels, as he attached an additional stipulation to the transaction. The Gemara rejects this opinion: The mishna is referring to a case where the seller did not write these words for him.

וְהָא ״אַף עַל פִּי שֶׁכָּתַב לוֹ״ קָתָנֵי! הָכִי קָאָמַר: אַף עַל פִּי שֶׁלֹּא כָּתַב לוֹ, כְּמִי שֶׁכָּתַב דָּמֵי – לְמִיקְנֵא עוּמְקָא וְרוּמָא. לְמִיקְנֵא בּוֹר וָדוּת וּמְחִילּוֹת – אִי כְּתַב לֵיהּ: ״עוּמְקָא וְרוּמָא״ – קָנֵי, וְאִי לָא כָּתַב – לָא קָנֵי.

The Gemara asks: But this line of reasoning is difficult, as the mishna explicitly teaches that the pit and the cistern are not sold even if the seller writes for the buyer that he is selling him the depth and the height of the house. The Gemara answers that this is what the mishna is saying: Even though the seller did not write these words for him in the bill of sale, for the purpose of acquiring the depth and the height of the house, it is considered as if he wrote them, as it is assumed that they were omitted by accident. By contrast, for the purpose of acquiring the pit and the cistern and the tunnels, if the seller explicitly wrote for him the words the depth and the height, the buyer acquires them, but if he did not write that phrase in the bill of sale, the buyer does not acquire them. No proof can be derived from this mishna.

תָּא שְׁמַע: וְלֹא אֶת הַגָּג – בִּזְמַן שֶׁיֵּשׁ לוֹ מַעֲקֶה גָּבוֹהַּ עֲשָׂרָה טְפָחִים.

§ The Gemara now considers a different mishna. Come and hear what was taught in the mishna (61a): One who sells his house without explicitly stating what is included in the sale has not sold the roof along with the house when it has a parapet ten handbreadths high, as such a roof is considered a separate entity and is not included in the sale of the house.

Today’s daily daf tools:

Delve Deeper

Broaden your understanding of the topics on this daf with classes and podcasts from top women Talmud scholars.

For the Beyond the Daf shiurim offered in Hebrew, see here.

New to Talmud?

Check out our resources designed to help you navigate a page of Talmud – and study at the pace, level and style that fits you. 

The Hadran Women’s Tapestry

Meet the diverse women learning Gemara at Hadran and hear their stories. 

Inspired by Hadran’s first Siyum ha Shas L’Nashim two years ago, I began daf yomi right after for the next cycle. As to this extraordinary journey together with Hadran..as TS Eliot wrote “We must not cease from exploration and the end of all our exploring will be to arrive where we began and to know the place for the first time.

Susan Handelman
Susan Handelman

Jerusalem, Israel

I learned Talmud as a student in Yeshivat Ramaz and felt at the time that Talmud wasn’t for me. After reading Ilana Kurshan’s book I was intrigued and after watching the great siyum in Yerushalayim it ignited the spark to begin this journey. It has been a transformative life experience for me as a wife, mother, Savta and member of Klal Yisrael.
Elana Storch
Elana Storch

Phoenix, Arizona, United States

I LOVE learning the Daf. I started with Shabbat. I join the morning Zoom with Reb Michelle and it totally grounds my day. When Corona hit us in Israel, I decided that I would use the Daf to keep myself sane, especially during the days when we could not venture out more than 300 m from our home. Now my husband and I have so much new material to talk about! It really is the best part of my day!

Batsheva Pava
Batsheva Pava

Hashmonaim, Israel

3 years ago, I joined Rabbanit Michelle to organize the unprecedented Siyum HaShas event in Jerusalem for thousands of women. The whole experience was so inspiring that I decided then to start learning the daf and see how I would go…. and I’m still at it. I often listen to the Daf on my bike in mornings, surrounded by both the external & the internal beauty of Eretz Yisrael & Am Yisrael!

Lisa Kolodny
Lisa Kolodny

Raanana, Israel

In July, 2012 I wrote for Tablet about the first all women’s siyum at Matan in Jerusalem, with 100 women. At the time, I thought, I would like to start with the next cycle – listening to a podcast at different times of day makes it possible. It is incredible that after 10 years, so many women are so engaged!

Beth Kissileff
Beth Kissileff

Pittsburgh, United States

I began Daf Yomi with the last cycle. I was inspired by the Hadran Siyum in Yerushalayim to continue with this cycle. I have learned Daf Yomi with Rabanit Michelle in over 25 countries on 6 continents ( missing Australia)

Barbara-Goldschlag
Barbara Goldschlag

Silver Spring, MD, United States

My family recently made Aliyah, because we believe the next chapter in the story of the Jewish people is being written here, and we want to be a part of it. Daf Yomi, on the other hand, connects me BACK, to those who wrote earlier chapters thousands of years ago. So, I feel like I’m living in the middle of this epic story. I’m learning how it all began, and looking ahead to see where it goes!
Tina Lamm
Tina Lamm

Jerusalem, Israel

I started last year after completing the Pesach Sugiyot class. Masechet Yoma might seem like a difficult set of topics, but for me made Yom Kippur and the Beit HaMikdash come alive. Liturgy I’d always had trouble connecting with took on new meaning as I gained a sense of real people moving through specific spaces in particular ways. It was the perfect introduction; I am so grateful for Hadran!

Debbie Engelen-Eigles
Debbie Engelen-Eigles

Minnesota, United States

A few years back, after reading Ilana Kurshan’s book, “If All The Seas Were Ink,” I began pondering the crazy, outlandish idea of beginning the Daf Yomi cycle. Beginning in December, 2019, a month before the previous cycle ended, I “auditioned” 30 different podcasts in 30 days, and ultimately chose to take the plunge with Hadran and Rabbanit Michelle. Such joy!

Cindy Dolgin
Cindy Dolgin

HUNTINGTON, United States

I began learning with Rabbanit Michelle’s wonderful Talmud Skills class on Pesachim, which really enriched my Pesach seder, and I have been learning Daf Yomi off and on over the past year. Because I’m relatively new at this, there is a “chiddush” for me every time I learn, and the knowledge and insights of the group members add so much to my experience. I feel very lucky to be a part of this.

Julie-Landau-Photo
Julie Landau

Karmiel, Israel

A friend mentioned that she was starting Daf Yomi in January 2020. I had heard of it and thought, why not? I decided to try it – go day by day and not think about the seven plus year commitment. Fast forward today, over two years in and I can’t imagine my life without Daf Yomi. It’s part of my morning ritual. If I have a busy day ahead of me I set my alarm to get up early to finish the day’s daf
Debbie Fitzerman
Debbie Fitzerman

Ontario, Canada

I began my journey two years ago at the beginning of this cycle of the daf yomi. It has been an incredible, challenging experience and has given me a new perspective of Torah Sh’baal Peh and the role it plays in our lives

linda kalish-marcus
linda kalish-marcus

Efrat, Israel

I started learning on January 5, 2020. When I complete the 7+ year cycle I will be 70 years old. I had been intimidated by those who said that I needed to study Talmud in a traditional way with a chevruta, but I decided the learning was more important to me than the method. Thankful for Daf Yomi for Women helping me catch up when I fall behind, and also being able to celebrate with each Siyum!

Pamela Elisheva
Pamela Elisheva

Bakersfield, United States

I began learning the daf in January 2022. I initially “flew under the radar,” sharing my journey with my husband and a few close friends. I was apprehensive – who, me? Gemara? Now, 2 years in, I feel changed. The rigor of a daily commitment frames my days. The intellectual engagement enhances my knowledge. And the virtual community of learners has become a new family, weaving a glorious tapestry.

Gitta Jaroslawicz-Neufeld
Gitta Jaroslawicz-Neufeld

Far Rockaway, United States

In January 2020, my teaching partner at IDC suggested we do daf yomi. Thanks to her challenge, I started learning daily from Rabbanit Michelle. It’s a joy to be part of the Hadran community. (It’s also a tikkun: in 7th grade, my best friend and I tied for first place in a citywide gemara exam, but we weren’t invited to the celebration because girls weren’t supposed to be learning gemara).

Sara-Averick-photo-scaled
Sara Averick

Jerusalem, Israel

In my Shana bet at Migdal Oz I attended the Hadran siyum hash”as. Witnessing so many women so passionate about their Torah learning and connection to God, I knew I had to begin with the coming cycle. My wedding (June 24) was two weeks before the siyum of mesechet yoma so I went a little ahead and was able to make a speech and siyum at my kiseh kallah on my wedding day!

Sharona Guggenheim Plumb
Sharona Guggenheim Plumb

Givat Shmuel, Israel

Robin Zeiger
Robin Zeiger

Tel Aviv, Israel

The first month I learned Daf Yomi by myself in secret, because I wasn’t sure how my husband would react, but after the siyyum on Masechet Brachot I discovered Hadran and now sometimes my husband listens to the daf with me. He and I also learn mishnayot together and are constantly finding connections between the different masechtot.

Laura Warshawsky
Laura Warshawsky

Silver Spring, Maryland, United States

I started learning Daf Yomi because my sister, Ruth Leah Kahan, attended Michelle’s class in person and suggested I listen remotely. She always sat near Michelle and spoke up during class so that I could hear her voice. Our mom had just died unexpectedly and it made me feel connected to hear Ruth Leah’s voice, and now to know we are both listening to the same thing daily, continents apart.
Jessica Shklar
Jessica Shklar

Philadelphia, United States

I went to day school in Toronto but really began to learn when I attended Brovenders back in the early 1980’s. Last year after talking to my sister who was learning Daf Yomi, inspired, I looked on the computer and the Hadran site came up. I have been listening to each days shiur in the morning as I work. I emphasis listening since I am not sitting with a Gamara. I listen while I work in my studio.

Rachel Rotenberg
Rachel Rotenberg

Tekoa, Israel

Bava Batra 63

וְלָא הִיא, דְּאָמַר רַב יֵימַר בַּר שֶׁלֶמְיָה: לְדִידִי מִפָּרְשָׁא לִי מִינֵּיהּ דְּאַבָּיֵי: בֵּין ״מֶצֶר אַרְעָא דְּמִינַּהּ פַּלְגָא״, וּבֵין ״מֶצֶר אַרְעָא דְּמִינַּהּ פְּסִיקָא״ – אִי אֲמַר לֵיהּ: ״אִלֵּין מִצְרָנַהָא״ – פַּלְגָא, לָא אֲמַר לֵיהּ: ״אִלֵּין מִצְרָנַהָא״ – תִּשְׁעָה קַבִּין.

But that is not so, as Rav Yeimar bar Shelemya said: The matter was explained to me by Abaye, as follows: Whether the seller writes with regard to the fourth boundary: The boundary of the field is the land through which the field is halved, or he writes: The boundary of the field is the land through which a plot can be set apart, if he said to the buyer: These are its boundaries, he has sold him half of the field. But if he did not say to the buyer: These are its boundaries, he has sold him only an area fit for sowing nine kav of seed.

פְּשִׁיטָא – אָמַר: ״יַחֲלוֹק פְּלוֹנִי בִּנְכָסַי״ – פַּלְגָא. ״תְּנוּ חֵלֶק לִפְלוֹנִי בִּנְכָסַי״ – מַאי?

§ The Gemara raises a question about a similar case: It is obvious that if one said: So-and-so should share in my property, he means to give him half of the property. If he said: Give so-and-so a portion of my property, what is the halakha? What portion of the property must he give him?

אָמַר רָבִינָא בַּר קִיסִי, תָּא שְׁמַע: דְּתַנְיָא, הָאוֹמֵר: ״תְּנוּ חֵלֶק לִפְלוֹנִי בְּבוֹר״ – סוֹמְכוֹס אוֹמֵר: אֵין פָּחוֹת מֵרְבִיעַ. ״לְחָבִית״ – אֵין פָּחוֹת מִשְּׁמִינִית. ״לִקְדֵרָה״ – אֵין פָּחוֹת מִשְּׁנֵים עָשָׂר. ״לְטָפִיחַ״ – אֵין פָּחוֹת מִשִּׁשָּׁה עָשָׂר.

Ravina bar Kisi said: Come and hear a proof concerning the halakha in this case, as it is taught in a baraita: With regard to one who says: Give so-and-so a portion of my cistern for his water needs, Sumakhos says: He must give him not less than one-quarter of the water in the cistern. If he qualifies his words and says: Give so-and-so a portion of my cistern’s water for his barrel, he must give him not less than one-eighth of the water. If he says: Give him a portion for his pot, he must give him not less than one-twelfth of the water. And if he says: Give him for his cup, he must give him not less than one-sixteenth of the water. In any event, this baraita indicates that the unqualified phrase: Give so-and-so a portion, should be understood to mean: Give him one-quarter.

תָּנוּ רַבָּנַן: בֶּן לֵוִי שֶׁמָּכַר שָׂדֶה לְיִשְׂרָאֵל, וְאָמַר לוֹ: ״עַל מְנָת שֶׁמַּעֲשֵׂר רִאשׁוֹן שֶׁלִּי״ – מַעֲשֵׂר רִאשׁוֹן שֶׁלּוֹ. וְאִם אָמַר: ״לִי וּלְבָנַיי״ – מֵת, יִתֵּן לְבָנָיו.

The Gemara now considers another case in which the seller withholds something for himself in a sale. The Sages taught in a baraita: With regard to a Levite who sold a field to an Israelite and said to him: I am selling you this field on the condition that the first tithe from the produce growing in the field, which must be given to a Levite, is mine, and it will be given to me every year and not to any other Levite, the first tithe is his. And if he said: I am selling you the field on the condition that the tithe will be given to me and to my sons, then if he dies, the buyer must give the tithe to his sons.

וְאִם אָמַר לוֹ: ״כׇּל זְמַן שֶׁהַשָּׂדֶה זוֹ בְּיָדְךָ״ – מְכָרָהּ וְחָזַר וּלְקָחָהּ, אֵין לוֹ עָלָיו כְּלוּם.

But if the seller said to the buyer: This stipulation will remain in force as long as this field is in your possession, then if the buyer sold it and afterward bought it back again, the seller has no claim on him. Since the field left the buyer’s possession in the interim, the seller no longer has a claim to the tithe.

אַמַּאי? אֵין אָדָם מַקְנֶה דָּבָר שֶׁלֹּא בָּא לָעוֹלָם! כֵּיוָן דְּאָמַר לֵיהּ: ״עַל מְנָת שֶׁמַּעֲשֵׂר רִאשׁוֹן שֶׁלִּי״ – שַׁיּוֹרֵי שַׁיְּירֵיהּ לִמְקוֹם מַעֲשֵׂר.

The Gemara challenges the halakha taught in the baraita: Why should the seller ever have a right to the tithe after he has sold the field? After all, a person cannot transfer ownership of an object that has not yet come into the world. How, then, can the seller acquire a portion of the produce that does not yet exist? The Gemara answers that since the seller said to the buyer: I am selling you this field on the condition that the first tithe is mine, it is as if he withheld the site where the tithe is grown for himself when he sold the field, and that site already exists.

אָמַר רֵישׁ לָקִישׁ: זֹאת אוֹמֶרֶת, הַמּוֹכֵר בַּיִת לַחֲבֵירוֹ, וְאָמַר לוֹ: ״עַל מְנָת שֶׁדְּיוֹטָא הָעֶלְיוֹנָה שֶׁלִּי״ – דְּיוֹטָא הָעֶלְיוֹנָה שֶׁלּוֹ.

Reish Lakish said: That is to say that with regard to one who sells a house to another and says to him: I am selling you this house on the condition that the upper story [deyota] is mine, the upper story is his.

לְמַאי הִלְכְתָא? רַב זְבִיד אָמַר: שֶׁאִם רָצָה לְהוֹצִיא בָּהּ זִיזִין, מוֹצִיא. רַב פָּפָּא אָמַר: שֶׁאִם רָצָה לִבְנוֹת עֲלִיָּיה עַל גַּבָּהּ, בּוֹנֶה.

With regard to what halakha did Reish Lakish say this? In any case the upper story is his, as when he sold the house, it was only the lower story that he sold to the buyer. Rav Zevid says: He said this to teach the halakha that if the seller wishes to extend from the upper story projections over the courtyard, which was included in the sale, he may extend them. Rav Pappa says: He said this to teach the halakha that if this upper story collapses and the seller wishes to build an upper story on top of it to replace it, he may build it.

בִּשְׁלָמָא לְרַב זְבִיד, הַיְינוּ דְּקָתָנֵי ״זֹאת אוֹמֶרֶת״; אֶלָּא לְרַב פָּפָּא, מַאי ״זֹאת אוֹמֶרֶת״? קַשְׁיָא.

The Gemara asks: Granted, according to Rav Zevid, this explanation is consistent with that which Reish Lakish teaches, which begins with: That is to say. As according to Rav Zevid, Reish Lakish infers from the ruling of the baraita about tithes that even though the seller of the house did not explicitly withhold anything for himself, the court interprets his use of his superfluous stipulation as an indication that he wished to withhold for himself the space over the courtyard for the projections. But according to Rav Pappa, what did Reish Lakish mean when he said his statement that begins with the phrase: That is to say? The seller’s right to rebuild the upper story after it collapses is not derived from the superfluous stipulation that he attached to the transaction, and it is not inferred from the baraita. The Gemara concludes: Indeed, Rav Pappa’s interpretation is difficult, as it does not account for the wording of Reish Lakish’s statement.

אָמַר רַב דִּימִי מִנְּהַרְדְּעָא: הַאי מַאן דִּמְזַבֵּין לֵיהּ בֵּיתָא לְחַבְרֵיהּ, אַף עַל גַּב דִּכְתַב לֵיהּ: ״עוּמְקָא וְרוּמָא״, צָרִיךְ לְמִכְתַּב לֵיהּ: ״קְנִי לָךְ מִתְּהוֹם אַרְעָא וְעַד רוּם רְקִיעָא״. מַאי טַעְמָא? דְּעוּמְקָא וְרוּמָא בִּסְתָמָא לָא קָנֵי; אַהֲנִי ״עוּמְקָא וְרוּמָא״ לְמִיקְנֵא עוּמְקָא וְרוּמָא, וְאַהֲנִי ״מִתְּהוֹם אַרְעָא וְעַד רוּם רְקִיעָא״ לְמִיקְנֵא בּוֹר וָדוּת וּמְחִילּוֹת.

§ The Gemara discusses what is included in the wordings of various contracts. Rav Dimi from Neharde’a said: Concerning this one who sells a house to another and wants the sale to include the entire property, even if he writes for the buyer in the bill of sale: I am selling you the depth and the height of the house, he must also write for him: Acquire for yourself the property from the depth of the earth up to the height of the sky. What is the reason for this addition? The reason is that the buyer does not acquire the depth and the height of the property without explicit specification, and therefore, unless the matter has been explicitly stipulated, the buyer may not dig under the house or build above it. The words: The depth and the height, effect the acquisition of the depth and the height of the house for the buyer, allowing him to dig below or build above the house. And the additional phrase: From the depth of the earth up to the height of the sky, effects the acquisition of the pit and the cistern and the tunnels associated with the house.

לֵימָא מְסַיַּיע לֵיהּ: וְלֹא אֶת הַבּוֹר וְלֹא אֶת הַדּוּת – אַף עַל פִּי שֶׁכָּתַב לוֹ ״עוּמְקָא וְרוּמָא״. וְאִי סָלְקָא דַּעְתָּךְ בִּסְתָמָא קָנֵי עוּמְקָא וְרוּמָא, לַיהֲנֵי ״עוּמְקָא וְרוּמָא״ לְמִיקְנֵא בּוֹר וָדוּת וּמְחִילּוֹת! דְּלָא כְּתַב לֵיהּ.

The Gemara proposes: Let us say that the mishna (64a) supports Rav Dimi’s opinion: 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. As if it enters your mind to say that the buyer acquires the depth and the height of the house even without the specification that the depth and the height of the house are included in the sale, let the phrase the depth and the height effect the acquisition of the pit and the cistern and the tunnels, as he attached an additional stipulation to the transaction. The Gemara rejects this opinion: The mishna is referring to a case where the seller did not write these words for him.

וְהָא ״אַף עַל פִּי שֶׁכָּתַב לוֹ״ קָתָנֵי! הָכִי קָאָמַר: אַף עַל פִּי שֶׁלֹּא כָּתַב לוֹ, כְּמִי שֶׁכָּתַב דָּמֵי – לְמִיקְנֵא עוּמְקָא וְרוּמָא. לְמִיקְנֵא בּוֹר וָדוּת וּמְחִילּוֹת – אִי כְּתַב לֵיהּ: ״עוּמְקָא וְרוּמָא״ – קָנֵי, וְאִי לָא כָּתַב – לָא קָנֵי.

The Gemara asks: But this line of reasoning is difficult, as the mishna explicitly teaches that the pit and the cistern are not sold even if the seller writes for the buyer that he is selling him the depth and the height of the house. The Gemara answers that this is what the mishna is saying: Even though the seller did not write these words for him in the bill of sale, for the purpose of acquiring the depth and the height of the house, it is considered as if he wrote them, as it is assumed that they were omitted by accident. By contrast, for the purpose of acquiring the pit and the cistern and the tunnels, if the seller explicitly wrote for him the words the depth and the height, the buyer acquires them, but if he did not write that phrase in the bill of sale, the buyer does not acquire them. No proof can be derived from this mishna.

תָּא שְׁמַע: וְלֹא אֶת הַגָּג – בִּזְמַן שֶׁיֵּשׁ לוֹ מַעֲקֶה גָּבוֹהַּ עֲשָׂרָה טְפָחִים.

§ The Gemara now considers a different mishna. Come and hear what was taught in the mishna (61a): One who sells his house without explicitly stating what is included in the sale has not sold the roof along with the house when it has a parapet ten handbreadths high, as such a roof is considered a separate entity and is not included in the sale of the house.

Want to follow content and continue where you left off?

Create an account today to track your progress, mark what you’ve learned, and follow the shiurim that speak to you.

Clear all items from this list?

This will remove ALL the items in this section. You will lose any progress or history connected to them. This is irreversible.

Cancel
Yes, clear all

Are you sure you want to delete this item?

You will lose any progress or history connected to this item.

Cancel
Yes, delete