1) TWO BROTHERS WHO DIVIDE PROPERTY, AND ONE TAKES THE INNER FIELD AND THE OTHER TAKES THE OUTER FIELD

QUESTION: Rav Nachman rules that if brothers who inherit property divide their father's fields by selling their portions to each other, with one brother taking an inner field and one taking an outer field, the brother who takes the inner field does not have automatically have the right to a path through his brother's outer field unless this was specified in the division. Since, according to Rebbi Akiva, a person who sells property does so "b'Ayin Yafah" -- "in a generous manner," when the brother sells his portion in the outer field to the other brother, he sells his brother all of the outer field, including any possible path that he might have had to access his inner field. This is why he does not have a path through the outer field.

The Rishonim ask the obvious question. The Gemara's case involves two "sales." One brother, Reuven, sells his portion in the outer field to his brother, Shimon. Shimon in turn sells his portion in the inner field to Reuven. This leaves Reuven with the inner field and Shimon with the outer field. Since both brothers sold the fields, why does Rav Nachman say that the brother that owns the inner field has no path? Even though Reuven sold his portion of the outer field to Shimon, Shimon also sold his portion of the inner field to Reuven with similar generosity of "Ayin Yafah," and thus his sale should include a pathway for Reuven! Why does Rav Nachman consider only the generosity of the sale of the brother who owns the inner field, and not the generosity of the brother who owns the outer field?

ANSWERS:

(a) The RASHBAM (DH Ein Lahen) explains that Rebbi Akiva's principle of "Ayin Yafah" means only that a person sells with generosity, and not that he buys with generosity. Since the brother with the outer field just bought his brother's portion in that field, it is assumed that he did not have in mind to leave a path for his brother through his field which he just bought.

(b) The TOSFOS RID quotes RABEINU TAM who says that the "Ayin Yafah" element of two sales cancel each other out. When each brother sells a portion of his field to the other brother, he wants the buyer to have complete ownership of the field. Rabeinu Tam says that the seller's desire that the buyer own the entire field gives the sale the status of "b'Ayin Yafah."

The Tosfos Rid takes issue with these explanations. The brother's sale of his portion in the inner field means that he is totally withdrawing from that field, regardless of whether a seller sells "b'Ayin Yafah" or not "b'Ayin Ra'ah." The only thing that "b'Ayin Yafah" adds to this sale is the fact that the seller gives a path to his brother who acquires the inner field, in order that he can have access to his field. If that is not included in the sale, in what way is the field being sold "b'Ayin Yafah"?

(c) The Tosfos Rid therefore offers a different explanation. He explains that, technically, the brother who is selling his portion of the inner field does leave his brother a pathway, as this is the definition of "Ayin Yafah." However, his brother also sells him his portion of the outer field "b'Ayin Yafah," which means that he does not want to take the pathway which he has been offered. What is the Halachah when one person wants to give a gift but the intended recipient refuses to accept it? It stays in the possession of the original owner. Accordingly, the path through the outer field which the owner wanted to give to his brother (the owner of the inner field) remains in his possession.

The Tosfos Rid proves this from the Gemara in Bava Kama (35b) which says that when one person claims that another person owes him wheat, and that person says that he owes no wheat but does owe barley, he is not obligated to give even barley, since the claimant contradicts his claim that he owes him barley. Similarly, the brother who owns the inner field rejects the path offered to him through his sale of his portion of the outer field. (Y. MONTROSE)

65b----------------------------------------65b

2) WHAT PARTS OF A HOUSE ARE NOT INCLUDED IN THE SALE OF A HOUSE

OPINIONS: The Gemara quotes a Beraisa which discusses whether various parts of a house are included in the sale of a house. The Rabanan list many parts that are not included in the sale. Rebbi Eliezer argues that parts of the house that are connected to the ground are considered part of the ground. In exactly what respect does Rebbi Eliezer argue with the Rabanan? What parts does Rebbi Eliezer maintain are included in the sale of the house which the Rabanan maintain are not included in the sale?

(a) The RASHBAM (DH Rebbi Eliezer) explains that Rebbi Eliezer argues with the Rabanan only with regard to one item: an affixed mortar (which was constructed first and then attached to the ground). The Rabanan maintain that only a mortar which is carved out of the stone of the ground is included in the sale of the house, but not a mortar that was affixed to the house. When Rebbi Eliezer says that anything attached to the ground is like the ground, he means that whatever is attached -- whether it was carved out of the ground or whether it was attached to the ground -- is now considered part of the house. Rebbi Eliezer agrees, however, that the ovens and mills are not considered part of the house, even though they are attached, since they are weaker.

The RASHASH writes that this also seems to be the view of the ROSH. The Rosh mentions the Halachah with regard to a mortar only when he discusses the Mishnah. He does not mentioned the discussion about the mortar when he quotes the Beraisa, even though he does quote the rest of the Beraisa without mentioning Rebbi Eliezer's opinion. The Rosh apparently understands that the rest of the Beraisa is not subject to dispute.

(b) The RI MI'GASH explains that Rebbi Eliezer argues with regard to ovens and mills as well, and he maintains that as long as they are connected to the ground they are considered part of the house. This is also the view of the TUR (CM 214) who rules that when one sells a house he includes in the sale all ovens and mills that are connected to the ground.

The Rashash questions how the Tur can rule against his father, the Rosh, whose opinion he almost always follows (and when he rules differently, he mentions his father's opinion). The Rosh clearly maintains that only the ovens and mills that were carved out from the ground are sold together with the house, and not ovens and mills that were formed and later attached.

Perhaps the Tur had a different text of the Gemara. There is a variant Girsa which says that the oven is sold with the house. Even though the same text (see BACH CM 214) says that the mill is not sold, it is possible that when the Tur says that these items are sold when they are "connected to the house," he means that even a mill is considered connected to the house, unlike the case mentioned in the Gemara in which the mill is not considered connected to the house. (Y. MONTROSE)

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