Wednesday, December 09, 2009

Selling a House

A Roof

The Gemora attempts to prove that a standard house sale does not include airspace from the statement in the Mishna that a roof with a fence ten tefachim high is not included.

The Rashbam (as explained by Tosfos 64a v’hee) says that the Gemora understood the exclusion of such a roof to be in a case where no inclusion of airspace was made. The Gemora concludes that airspace is not included in a standard sale, because it is illogical for one to own the house under the roof, as well as the airspace above the roof, but not the roof. The Gemora’s answer is that since the roof is substantial enough to have a fence of ten tefachim, this is the way the sale works.

The R”i challenges this explanation, since the Gemora’s answer does not address the assumption of the question. The R”i instead explains that the Gemora was stating that if it is so easy to acquire extensions of the house (such as depth and airspace), that the acquisition takes effect even if not explicitly included, then a roof should be included, even if it has a ten tefachim fence. The Gemora’s answer is that such a roof is so substantial, that it is still not included in a sale, even one that is expansive enough to implicitly include airspace and depth.

A Roof’s Dimensions

The Rambam (Mechira 25:2) says that a roof with a ten tefachim fence, and a width of four amos is excluded from a house sale. The Kesef Mishnah quotes the Magid Mishnah who asks what’s the Rambam’s source for the minimum width of four amos. The Kesef Mishnah points out that the Rambam does not specify any such minimum dimensions for an inner room, which is also excluded from a house sale. The Kesef Mishnah explains that an inner room is excluded, since it serves a different purpose than the house – whereas the house is for living, the room is for storage. Therefore, no matter how small the room is, it is excluded. However, a roof is excluded since it is substantial, and therefore considered a different domain than the house. To be a different domain, it must be a minimum width of four amos.

A Generous Gift

The Gemora explains the dispute of Rabbi Akiva and the Sages to be whether a seller is generous or stingy in his sale. The Rashba (Responsa 3:116) rules that all agree in the case of a gift that the giver is generous. Therefore, if one gave his friend a pit or house on his property, that gift included access rights to the given property as well.

Another Path

The Rama (HM 214:2) rules that although we rule that one who bought a pit or house on someone else’s property is assumed to have acquired the access rights to it, if he already owns a path to it, we do not give him a new access route.

Types of Pits

The Mishna lists two types of pits that are excluded from a home sale – an earthen pit, and a paved pit. The Rashbam explains that both types of pits have to be explicitly listed. If only an earthen pit was listed, we may have thought that a paved pit, which is similar to the house, which is not land, but built on land, would be included. If only a paved pit was listed, we may have thought that such a pit is significant, and is therefore not ancillary to the house. However, an earthen pit would be considered ancillary to the house, and included in its sale.

No Path?

The Sages say that if one sells a house, he retains his pit, and a pathway, while if he sells his pit, the buyer must buy access rights. Rabbi Akiva says that if one sells a house, he retains his pit, but not access rights, while if he sells his pit, the buyer gets access rights. The Reshash says that even when one does not get access rights, this simply means that he does not own a path four amos wide to his pit. However, he does have a narrow path to his pit.

The Yad Ramah asks what the buyer of a pit bought according to the Sages, if he does not have access rights. The Yad Ramah says that all the buyer bought was the right to be a bar matzra – a neighbor, with first rights to purchase adjoining land.

The Reshash is inconsistent with this Yad Ramah, since according to the Reshash, the buyer does have access to his pit, albeit in a less comfortable manner.