A mishnah teaches us that when one person sells another a piece of property, the sale does not include the cistern, winepress, or dovecote found on the property. Why? Because these items are considered to be separate items and have to be specifically mentioned in order to be included in the sale.
To what case does this statement apply?
When one sells a field, but when one gives it away as a gift, it is assumed that they give away all of it.
The Gemara is curious about this distinction and asks:
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In what way is a sale different from a gift, and in what way is a gift different from a sale?
To answer this question, the Gemara first quotes Yehuda ben Nekosa, who explained before Rabbi Yehuda HaNasi:
The difference between the cases is that this one, the seller, specified that certain items were not included in the sale, and that one, the donor, did not specify.
What are these items excluded from a sale but included in a gift? Yehuda ben Nekosa suggests that the seller specifically mentions them, but the donor does not. But this does not make sense to the Gemara — why would the mishnah juxtapose the seller and the donor if the difference between them was about the specificity of the language that they use when making the transaction? If specificity was at the heart of the matter, there is no reason to label one person a seller and the other a donor. Rather, says the Gemara, both situations are ones where these items were not specifically excluded from the sale
So why are these items automatically excluded from a sale, but not a gift? The seller, we might assume, is out to get the best possible deal, and so, other structures on the property, especially ones like a dovecote that are considered to be their own entity, are unlikely to be included in the sale if not specifically mentioned. A donor, however, is more likely to be generous than a seller. If they are giving the land away, it’s more likely that they will include everything that appears on the property, even those structures that are not automatically included in a sale.
Perhaps at issue here, suggests the discussion in the Gemara, is not the behavior of the person turning over the land, but rather the one who is receiving it. In the case of a sale, the responsibility lies with the buyer to articulate what’s included in the deal before finalizing the purchase of the land. After all, they have to look out for their interests, and if they are silent, it makes sense that they lose out on the purchase of the additional structures on the property.
But why not apply the same logic to a person who is receiving the field as a gift? Shouldn’t they be required to speak up and ask for the winepress if they want it?
Not at all says the Gemara:
This one, the buyer, should have specified, but that one, the recipient of the gift, should not have specified.
While a buyer is expected to clarify the details of the sale, not so the recipient of a gift — it would be considered bad form for them to inquire about what their benefactor is including in the gift rather than expressing gratitude for the fact that they are being given a piece of property free of charge. And while they can’t speak up for themselves, our mishnah does, and includes these structures automatically as part of the gift.
Read all of Bava Batra 71 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on September 4, 2024. If you are interested in receiving the newsletter, sign up here.
