Does buying a house automatically mean buying rights to tunnel under the house or build it higher? From the Talmud’s perspective, not necessarily:
Rav Dimi from Nehardea said: Concerning this one who sells a house to another, even if he writes for the buyer: “I am selling you the depth and the height of the house,” he must also write for him: “Acquire for yourself the property from the depth of the earth up to the height of the sky.” What is the reason? The reason is that the buyer does not acquire the depth and the height of the property without explicit specification.
Rav Dimi teaches that selling a house doesn’t automatically transfer rights to land and airspace, or to other fixtures associated with but outside of the physical house. If one wishes to transfer ownership of the entire vertical space, above and below the actual building, one must include the phrase, “from the depths of the earth to the height of the sky.” The Gemara brings a mishnah to back this up:
One who sells a house has sold neither the pit nor the cistern, even if he writes for him “the depth and the height of the house.” As if it enters your mind to say that the buyer acquires the depth and the height of the house even without the specification, let the phrase “the depth and the height” effect the acquisition of the pit and the cistern and the tunnels.
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The mishnah likewise states that pits and cisterns aren’t included in the sale of a house, even if the phrase, “I am selling you the depth and the height of the house” is included. This seems to align perfectly with Rav Dimi’s assertion, but the Gemara dismisses the mishnah as support for his position:
The mishnah is referring to a case where the seller did not write these words for him.
Perhaps, suggests the Gemara, when the bill of sale has no specifications at all, then the buyer doesn’t acquire these fixtures, but if it mentions depth and height, rights to these above and below spaces as well as existing external fixtures would be transferred.
This is, however, difficult to reconcile with what the mishnah actually says — that the fixtures are not included if the seller writes the words “depth and height of the house” into the deed. So the Gemara instead proposes a new interpretation:
This is what it (the mishnah) is saying: Even though the seller did not write these words for him in the bill of sale, for the purpose of acquiring the depth and the height of the house, it is considered as if he wrote them. By contrast, for the purpose of acquiring the pit and the cistern and the tunnels, if the seller explicitly wrote for him the words “the depth and the height,” the buyer acquires them, but if he did not write that phrase in the bill of sale, the buyer does not acquire them.
Perhaps, argues the Gemara, we should always assume the sale of a house includes rights to the land and air space. After all, it would be odd to own a building but nothing immediately beyond its four walls, floor and ceiling. Therefore, perhaps rights to land and air space don’t require specification. However, what the mishnah is teaching is that the acquisition of existing non-house fixtures — such as a cistern that has already been dug below the house — is not assumed. Existing features, perhaps, can only be acquired if specified in the bill of sale.
Ultimately, since the Gemara is able to provide this logically cogent albeit linguistically stretched read of the mishnah above, the mishnah can’t be used as definitive support of Rav Dimi’s position. Everyone seemingly agrees that pits, cisterns and tunnels aren’t transferred without specification, but whether rights to the surrounding space are automatic and whether the fixtures require additional language of “from the depth of the earth up to the height of the sky” remains up for debate.
Read all of Bava Batra 63 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on August 27, 2024. If you are interested in receiving the newsletter, sign up here.
