The Coming Week’s Daf Yomi by Rabbi Adin Steinsaltz
This essay is based upon the insights and chidushim (original ideas) of Talmudic scholar Rabbi Adin Steinsaltz, as published in the Hebrew version of the Steinsaltz Edition of the Talmud.
Bava Batra 63a-b
Do standard sale agreements include air rights? Do they include the right to build underground? These are among the issues that the Gemara on today’s daf deals with.
Rav Dimi of Nehardea taught that when someone sells a house to another person, even if the terms umka ve-ruma – to the depths and heights – are included in the contract, it must specify mi-tehom ara ve-ad rum rekia – from the depths of the earth until the heights of the sky. The Gemara explains that the mere mention of depths and heights is not specific enough to clarify that further rights are included in the sale, beyond the house itself.
Based on this ruling, if the rights to the air and ground were not included in the contract, the purchaser would not be allowed to dig under the house, nor build above it; those rights were retained by the seller. In fact, the purchaser may be able to keep the seller from actually building above or below the house if such a project would threaten the stability of the existing structure that he bought. The R”i mi-Gash rules that the seller does not really have the right to perform such construction, but if the purchaser dug underground, for example, it would belong to the seller.
The rishonim comment that this is true only in a situation where a house is being sold. If a field was being sold, however, it is clear that the sale includes more than just the surface of the land itself. According to the Re’ah and Ritva, both air rights and rights to what lies beneath the ground must be included, since a field is worthless if the owner cannot make use of those rights – the air rights for sun, rain and wind, and the ground for underground moisture. The Rashba argues that this is true for air rights, but rights to the ground must be specified.
Bava Batra 64a-b
The Gemara on today’s daf continues the discussion of what rights are included in a standard sale agreement of a house or a piece of land. The Mishnah teaches that someone who sells a house does not include the bor or dut, even if he included the terms umka ve-ruma – to the depths and heights – in the contract. These structures are considered to be separate from the house, and are, therefore, not included in its sale.
The Gemara appears to assume that both a bor and a dut are underground structures, and Ravina asks what the difference is between them. The Rashbam explains the question as asking why we should distinguish between them given that they are both underground structures whose purpose is to store water or other items.
In response, Rava Tosfa’ah quotes a baraita that explains that a bor is simply dug in the ground while a dut is dug and then supported by construction. Most of the rishonim interpret Rava Tosfa’ah’s statement as agreeing that they are largely the same, just the bor is in solid ground while the dut is in softer ground that needs additional construction to ensure that it does not collapse.
The Rambam, however, suggests in his Commentary to the Mishnah, that the dut is a building that is constructed above ground. This appears to contradict the flow of the Gemara which is discussing structures below the house, and not free-standing buildings that are separate from the house. One approach is to suggest that the dut is built on the roof of the house – water storage on the roof was not uncommon in ancient Israel – and that the discussion is whether the seller included storage areas either below (the bor) or above (the dut) the house in his sale.
Bava Batra 65a-b
When purchasing a house, what is included? Would furniture be included? Light fixtures?
The general assumption of the Talmud is that everything that is permanently attached to a building is included in a standard sale, while removable objects are not. The Mishnah on today’s daf teaches that when someone sells a house, things like the oven (tanur v’kirayim) are not included in the sale. Similarly only the permanently connected parts of a domestic mill for grinding flour are included in the sale (the itzrabul); the moveable parts (the kelet) are not.
The tanur that was used in people’s homes at the time of the Mishnah was a large, earthen utensil that looked like a very large jug, and was used primarily for baking bread. In order to bake the bread properly, the heat had to be brought to a very high temperature, requiring a large fire (see this article for a description of bread baking in such an oven). Kirayim were also made of clay, but they were much smaller and had two holes upon which pots or pans could be placed, which cooked over a much smaller fire.
Some manuscripts have the Mishnah ruling that the tanur and kirayim are sold with the house. While some explain that it simply depends on whether the oven was connected to the ground, Tosafot suggest that we are certainly discussing a case where the tanur was connected to the ground with clay, and the question is whether such a connection – which can easily be removed – is considered significant with regard to this question.
Mills were usually made of two parts. The bottom part – the itzrabul – was connected to the ground, and the upper part – the kelet – which had an hourglass shape, moved freely above it. The upper part of the kelet was open so that grain could be poured into it; it had wooden planks inserted in its side which allowed people or animals to turn it, grinding the grain into flour.
Bava Batra 66a-b
The question that our Gemara has focused on is whether a household object is considered part of the structure of the house itself, which would then be seen as part of the house and would be sold with it, or if it is considered separate from the house, in which case we cannot assume that the seller meant to include it in the sale.
Whether something is “connected” is significant in Jewish law not only in questions of monetary issues, but in other areas, as well. A question of tumah v’taharah – ritual defilement and purity – is an example where such a question is important, and our Gemara brings cases from that realm of halacha to help establish certain principles in our situation. One general principle in the laws of tumah v’taharah is that things that are connected to the ground cannot become tamei – they cannot become ritually defiled. The Gemara brings a Mishnah from Masechet Keilim (15:2) which teaches that a daf shel nachtomin – a baker’s shelf – that is placed in the wall will not become tamei according to Rabbi Eliezer, but the Chachamim rule that it can become tamei. The Gemara brings this in an attempt to establish that according to Rabbi Eliezer, such a shelf is perceived as part of the structure of the building and therefore is considered “connected to the ground.”
The case of a daf shel nachtomin is understood by most rishonim as referring to a piece of wood on which the baker kneads and prepares his dough. The Rashbam suggests an alternative explanation, that it is a display shelf on which the baker arranges his wares for sale. In either case it is a simple wooden plank. This is significant since the Gemara eventually rejects the suggested approach that Rabbi Eliezer views a simple connection as making something considered “connected to the ground,” rather they argue that the status of the shelf as peshutei kli etz – an unformed piece of wood – is what allows it to keep from becoming tamei.
Bava Batra 67a-b
As we have already learned, the general assumption of the Talmud is that everything that is permanently attached to a building is included in a standard sale, while removable objects are not.
According to the Mishnah, when a person sells an olive press – a bet ha-bad – it includes the yam, the memel and the betulot, but not the avirim, the galal or the korah. When the seller specified that he was selling the entire contents of the bet ha-bad, then all are included. According to Rabbi Eliezer, the korah is included in all situations.
Although the Gemara asks for definitions of all of these terms, their actual meanings remain unclear to us today. The rishonim also interpret them in different ways, based on a variety of sources and traditions that they used and what was commonly found in their own communities. It appears that the process of extracting oil from olives was different in different places, and even the descriptions found in the Mishnah and baraitot may refer to different methods.
The bet ha-bad was a structure that included permanent parts, like the yam, a round structure that held the olives, betulot, wooden beams that supported the korah, and the memel, which was a stone or other object that broke the olives up.
It also included parts that were removable, like the avirim, which were placed on the olives to weigh them down and help extract the oil, the galgal which was a weight connected to the korah that helped push it up and down, and the korah itself which was a beam that pressed down on the olives.
Rabbi Eliezer’s position is understood by the Gemara as placing the korah – the central beam – as the defining structure of the bet ha-bad, and as such, it must be included in the sale even if it is not permanently connected to the building itself.
Bava Batra 68a-b
The Mishnah on today’s daf (page) discusses what would be included when someone sells a city. According to the Mishnah such a sale would include all permanent structures, like houses, water holes, bathhouses and dovecotes, olive presses and gardens. It would not include any moveable objects, unless that was specifically agreed upon. If, in fact, the agreement was that everything in the city was included, then animals and slaves in the city would be included in the sale, as well.
From this Mishnah, as well as other places in the Talmud it is clear that aside from large cities that were public property, there also were privately owned cities. Such places were large tracts of land that included houses and other structures, all of which belonged to a single individual. Those people who lived on the land were his tenants while all the permanent, fixed structures, belonged to him, and he could choose to sell them to another.
The Mishnah concludes with the ruling of Rabban Shimon ben Gamliel, who says that in all circumstances the santar of the city would be included in the sale, even if it wasn’t specified.
Two explanations of the concept of “santar of the city” are put forward in the Gemara. One suggestion is that it is the person who watches the city; the other is that it is the fields that surround the city.
Most of the rishonim understand the first suggestion – that it refers to the person who watches the city – as meaning the person who knows the divisions of the city, the different parcels of land, how it is taxed, and so forth. Since it is impossible for the city to continue to function without the person who has all of this information, Rabban Shimon ben Gamliel rules that he must be included in the sale. Others suggest that this is the guard who knows the layout of the city, its strengths and weaknesses, and how it must be protected.
Bava Batra 69a-b
The Mishnah (68b) teaches about what is included in the standard sale of a field, and distinguishes between different trees – charuv she-eno murkav vs. charuv ha-murkav – a carob tree that has not yet been grafted and one that has, and betulat ha-shikmah vs. sadan ha-shikmah – a wild sycamore tree and one that has been trimmed. According to the Mishnah, these trees in their natural state are considered part of the field and are sold with it, but once they have been cultivated in different ways, they are independent and will not be sold with the field unless it is specified in the sale agreement.
With regard to the carob tree, Ceratonia siliqua, many carobs are found in the wild, where they do not grow tall nor do they produce much fruit; they are, however, hearty and strong. Cultivated carob trees grow tall and produce an abundance of fruit, but are usually weaker. To take full advantage of the carob tree, it was common practice to graft cultivated branches onto wild carob trees. Such trees – the charuv ha-murkav – are considered more valuable than the simple wild carobs.
The sycamore, or Ficus sycomorus, is a tall, wide tree that is related to the fig. Although its fruit can be eaten, it was mainly grown for its wood, since it can produce large boards that are relatively light. It was common practice to allow the tree to grow for a number of years until its reached a large enough size, at which point it was trimmed and cut down for use, leaving behind the trunk – sadan ha-shikmah – from which the tree would renew itself. After a number of years, upon reaching full height, the tree would, once again, be trimmed for use.
In addition to his monumental translation and commentary on the Talmud, Rabbi Steinsaltz has authored dozens of books and hundreds of articles on a variety of topics, both Jewish and secular. For more information about Rabbi Steinsaltz’s groundbreaking work in Jewish education, visit www.steinsaltz.org or contact the Aleph Society at 212-840-1166.
The words of this author reflect his/her own opinions and do not necessarily represent the official position of the Orthodox Union.