House and Land

Bava Batra | Ben-Zion Hain | 17 years ago

After inspecting a house a few weeks ago, I received a text message on my mobile phone from the real estate agent last week stating that “all the furniture would be offered to the successful purchaser to buy”. Although this seems logical, it would have been equally as logical for the purchaser to assume that all of the furniture is already included in the sale price. The Mishnayot discuss this very issue.

It is clear that when two people are engaged in a monetary transaction where a contract is involved, they are both free to include any and all conditions related to the sale. For example, “I will sell the house but not the contents” or “I will sell the field but we will divide the grain you harvest” etc. However, the Mishnayot in the fourth and fifth chapter of Baba Batra deal with a case when only a general statement, without a detailed contract, is made with regards to the sale.

Another question that comes up a number of times in these mishnayot is what happens if the person selling does keep certain parts of a field or other property; does the seller need to purchase a path from the buyer in order to gain access to his property or does this access path “go without saying”?

Rabbi Akiva holds that the seller does indeed have to purchase an access path while the Chachamim hold that the seller does not. The reason for this machloket is whether or not the person selling does so with an “ayin yafa” or not. If the seller acts with an ayin yafa then it means that the seller broadens and expands the rights of the buyer to the point where a general statement will include all possibilities – e.g. the house, the land and the contents. However, if the seller acts in the opposite manner, with an ayin ra’ah, then it means that the seller limits the boundaries of a general sale to include only the bare minimum – only the house but nothing more.

The Chachamim hold that a seller will always act with an ayin ra’ah and therefore if a well was not included in the sale of a field, then neither will an access path be included in the sale. Therefore, the Chachamim hold that an access path need not be purchased as it never left the ownership of the seller in the first place. Rabbi Akiva, on the other hand, believes that a seller acts with an ayin yafa so even when retaining possession of the well, the access path was sold and therefore must be re-purchased.

It is this same machloket that explains the difference between buying or selling and between giving something as a present that is brought in last Mishnah in chapter four. It is possible to argue whether or not a seller is acting with an ayin yafa or ra’ah. However, it is very difficult to say that when a person gives a present, they are acting with anything but an ayin yafa – why else are they giving the present. It is for that reason that there is no machloket regarding presents as everyone holds that a present is given with an ayin yafa and therefore the maximum amount is included in the present.

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