1) IS THE ATTIC INCLUDED IN THE SALE OF A HOUSE?

OPINIONS: The Mishnah discusses various parts of a house which are not automatically included in the sale of a house, such as the antechamber and the storage room. The roof of the house is the subject of a Machlokes between the Tana Kama and Rebbi Yehudah. The Tana Kama maintains that the roof is not included in the sale when it has a railing ten Tefachim high. Rebbi Yehudah maintains that even if it does not have a railing ten Tefachim high, it is not included in the sale if it has a Tzuras ha'Pesach.

What is the law with regard to an attic? Is an attic included in the sale of a house?

(a) The TOSFOS YOM TOV writes that the answer to this question is an explicit Mishnah in Nedarim (56a). The Mishnah there records a Machlokes between Rebbi Meir and the Chachamim, who argue about the law in the case of one who makes a Neder not to benefit from any houses. According to Rebbi Meir, one who makes such a Neder may benefit from the attic of a house. The Chachamim rule that he may not benefit from the attic of a house, "because an attic is called a 'house'." Since the Halachah always follows the view of the Chachamim when they argue with Rebbi Meir, the Halachah in this case follows the Chachamim. Hence, one who sells a house automatically sells the attic as well.

The Tosfos Yom Tov writes that he does not know the basis for the opinion quoted by the TUR (CM 214) that says that the attic is not included in the sale of a house.

(b) The RASHASH writes that he does not understand the Tosfos Yom Tov. The RIF and RAMBAM discuss the Halachah that the attic is part of the house. They stipulate that the attic is part of the house only when the attic is connected to the house by way of a skylight, but not if it has a separate entrance.

The Rashash asks further that the Tosfos Yom Tov's proof from the Mishnah in Nedarim is problematic. The Mishnah there says that an attic is considered part of a house only with regard to one who makes who a Neder not to benefit from houses. This does not mean that an attic is included in the sale of a house. Perhaps an attic has independent significance and is considered a separate house, and it is not included in the sale of the lower section of the house.

The CHIDUSHEI MAHARI'ACH gives a similar argument against the Tosfos Yom Tov's ruling. He explains that the Gemara in Nedarim explains that if one person says to another person that he will sell him a house, he may give him an attic since an attic is called a house. If the seller may give the buyer an attic as a "house," why should someone who sells a house be obligated to give both the house and the attic? He should be obligated to give only the attic! It must be that the attic is not included in such a sale. (Y. MONTROSE)

61b----------------------------------------61b

2) PAYING FOR A PALACE AND GETTING A HOUSE

QUESTION: Rav Nachman discusses the case of a contract that was written for the sale of a house, which included a drawing of the boundaries of a palatial complex. The palatial complex comprised many houses which surrounded a large central building (called a "palace"). It is assumed that the contract reflected the sale of a house alone, and not the entire complex. Although all of the borders of the palace were drawn, this was done probably because the person did not know how to draw a picture of his house without drawing the details of the entire complex (and he also forgot to include in the sketch any mention that he intended to sell only this particular house). The Gemara concludes that Rav Nachman's ruling applies only in an area where most people call a house a "house" and a palace a "palace," yet some people call a palace a "house." Rav Nachman teaches that even though some people call a palace a "house," it is assumed that the person sold a house, not a palace.

TOSFOS (DH Shema Mina) asks that the Gemara oddly omits mention of a Halachic principle which should help solve the doubt in this case in a different manner. The Mishnah later (77b) quotes Rebbi Yehudah who states "Damim Modi'im." This means that the amount of money paid for a sale often may be used as evidence as to which item was bought. The Mishnah there discusses the case of a person who buys a yoke, and it asks whether the team of oxen attached to the yoke are included in the sale. Rebbi Yehudah says that the doubt may be resolved based on the price that was paid. For example, if the price paid was 200 Zuz, this indicates that the oxen were included in the sale, because a yoke certainly does not cost that much by itself. If the price was in the reasonable range of the prince of a yoke, then this indicates the sale included only the yoke. Why does the Gemara here not utilize this principle to determine, based on the price paid, whether the entire palace was purchased or only a house?

ANSWERS:

(a) TOSFOS answers that Rav Nachman follows the view of the Rabanan who do not follow the principle of "Damim Modi'im."

(b) Alternatively, Tosfos quotes the RI who answers that the Gemara indeed may follow the view of Rebbi Yehudah. However, even Rebbi Yehudah agrees that "Damim Modi'im" does not apply to the sale of land, since it is common for people to pay far more for a piece of land than its fair market value.

(c) Tosfos quotes RABEINU SHMUEL who answers "Ein Ona'ah l'Karka'os" -- "there is no law of Ona'ah (overcharging or underpaying) for land." The Ri understands that Rabeinu Shmuel means that because the Halachah states that the sale of land is valid and binding even when the buyer pays more money than the land is worth, perhaps in the case of Rav Nachman the buyer purchased only the house and not the palace, and he merely overpaid. This would not be the case for Metaltelin, where the sale would be invalid (if one overpaid more than a sixth).

However, the Ri rejects this answer. He writes that the laws of Ona'ah do not apply to Hekdesh as well, even though the logic of "Damim Modi'im" would apply if the object involved was not Hekdesh (such as in the case of the yoke and the oxen). The fact that there is no Ona'ah for land is a Gezeiras ha'Kasuv, and therefore Beis Din still should be able to determine which object was purchased based on "Damim Modi'im." (Y. MONTROSE)

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