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

QUESTION: The Mishnah teaches that when one sells a house, the wells in the house are not included in the sale, even when the seller mentions that he is selling the "depth and height" of the house. How, though, does the seller access the well which he retained for himself? Rebbi Akiva rules that he must purchase a path from the new owner if he wants to gain access to his well. The Chachamim rule that the seller reserved the right to use a path through the house to his well when he sold the house. Since he left the well for himself, he must have also left a way of getting to it. Rebbi Akiva agrees that when the seller explicitly states that the well is not included in the sale of the house, he retains a path to his well.

What is the basis behind the dispute between Rebbi Akiva and the Chachamim?

ANSWER: The RASHBAM (DH v'Tzarich, DH bi'Zman) explains, based on the Gemara, that Rebbi Akiva and the Chachamim disagree about a fundamental point: does a person who sells an item intend to sell only the basic item, or also any extras that accompany the item? The Chachamim maintain that a person sells only the exact item mentioned in the sale. Since a well is not part of the description of a house, it is not included in the sale of the house. Rebbi Akiva maintains that a person sells his item "generously," and therefore the path to the well is included in the sale of the house, and the seller must buy it back if he wants access to his well. Rebbi Akiva agrees that when the seller states explicitly that the well is not included in the sell, he retains the path to himself; since it was not necessary for him to exclude the well from the sale, he must have intended to exclude the path from the sale.

The CHIDUSHIM U'VI'URIM questions the notion that a seller intends to retain something for himself even when he makes no mention of it. If the seller really intended to retain a path to his wells, why did he not specify it in the contract? The Chidushim u'Vi'urim suggests instead that Rebbi Akiva actually agrees with the Chachamim that a person who sells a house does not include the well or the path to that well in the sale, since he needs to retain the path for himself so he can get to his well. However, when there is no mention of any exclusion (well or path) in the contract, Rebbi Akiva maintains that it cannot be assumed that the seller excluded the path from the sale, since he sold the entire house to the buyer. When, however, there is any mention whatsoever about a well, Rebbi Akiva agrees that the seller also left for himself the path.

The KESEF KODSHIM discusses a similar case in which two parties conducted a quick sale of a property without first writing a legal document, and they did not specify the details of the sale. The owner of a house sold his house, which happened to contain a wine cellar. Did he include the wine cellar in the sale? The Kesef Kodshim suggests that a wine cellar in a house has the same status as a well, and thus it is not included in the sale of a house. However, the Kesef Kodshim points out that nowadays things such as wine cellars are customarily included in sales of houses. Even though no details were specified, it may be assumed that the transaction was done according to the standard sale of a house today. The ARUCH HA'SHULCHAN (CM 214:1) also writes in the name of the RAMBAM that the custom of what is included in sales of houses constantly changes, and that the custom takes precedence over the Halachah stated by the Gemara. (Y. MONTROSE)

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2) DOES A PERSON LEAVE OVER A PATH TO ACCESS HIS WELL?

OPINIONS: The Mishnah teaches that when one sells a house, the wells in the house are not included in the sale, even when the seller mentions that he is selling the "depth and height" of the house. How, though, does the seller access the well which he retained for himself? Rebbi Akiva rules that he must purchase a path from the new owner if he wants to gain access to his well. The Chachamim rule that the seller reserved the right to use a path through the house to his well when he sold the house. Since he left the well for himself, he must have also left a way of getting to it. Rebbi Akiva agrees that when the seller explicitly states that the well is not included in the sale of the house, he retains a path to his well.

Rebbi Akiva and the Chachamim disagree about whether the seller leaves for himself a pathway to access his well in the house. The Gemara explains that according to the Chachamim, who say that the seller does leave for himself a pathway to his well, maintain that a seller generally sells in a parsimonious fashion, and thus he presumably left for himself a way to get to his well. Rebbi Akiva says that a seller sells in a generous fashion, and thus he presumably did not leave himself a pathway (unless he specified either that he is leaving himself a pathway or the well; see Mishnah).

The Gemara proposes that perhaps this is not the basis of the argument. Perhaps both Rebbi Akiva and the Chachamim maintain either that a seller sells in a stingy way or in or in a generous way. Rather, they argue about whether a buyer agrees to give money for property only to have it trampled by others (Rebbi Meir), or whether a seller does not agree to take money only to have to fly to access the property he retained for himself. What is the reasoning behind their argument?

(a) The RASHBAM (DH mi'Mai, DH v'Rabanan) explains that the argument between Rebbi Akiva and the Chachamim is which possibility is more unreasonable -- the possibility that a buyer would let someone constantly trample through his house to get to his well, or the possibility that a seller would retain possession of a well when he has no way to access it.

The RASHBA has difficulty with this explanation. He points out that the Gemara says that according to the Chachamim, a person "does not want to take money and have to fly in the air." According to the Rashbam's understanding, why does the Gemara need to say that a person does not want to "take money" and have to fly? The Gemara should say merely that according to the Chachamim, a person does not want to have to fly. Why does it mention taking money?

(b) The RASHBA understands the proposed argument in a different way. Rebbi Akiva maintains that although it indeed is unreasonable to assume that a seller would sell a house and have to fly to his well, he assumes that because the buyer does not want someone constantly trampling through his house, and the seller was desperate to conclude the sale, that the seller decided to take the money and deal with the problem of getting to his well at a later time. The Chachamim argue that even if the seller needs money desperately, he is not so desperate that he will conclude a sale and exclude an asset from the sale which he has no way of accessing. This explanation is consistent with the Gemara's statement that the Chachamim maintain that a person would not "take money" and have to fly.

Perhaps the Rashbam understands that the phrase "take money" is mentioned only to parallel the wording in Rebbi Akiva's reasoning, that a person does not want to give money and have his house trampled. The Gemara merely seeks to use parallel terminology in its explanation of the Chachamim's opinion. (Y. MONTROSE)

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