A mishnah on today’s daf teaches:
One who sells a house without specification has sold neither the pit nor the cistern.
In other words, if there are other structures on the property, they are not automatically included in the sale of the house — unless they are specifically mentioned in the deed. Otherwise, the seller maintains possession of them. This teaching leads to a rabbinic dispute:
The seller must purchase a path through the buyer’s domain to reach whatever remains his — this is the statement of Rabbi Akiva.
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And the rabbis say: The seller need not purchase for himself a path through the buyer’s domain, as this is certainly included in what he has withheld for himself from the sale.
According to Rabbi Akiva, when someone sells their house but not water features built into the land under it, they must buy back an access road to be able to utilize those features. But the rabbis disagree, holding that the path to the cistern or pit is, by default, retained by the original owner.
The Gemara looks for the principle that lies at the heart of this debate:
Rabbi Akiva holds that one who sells, sells with a good eye (i.e., generously), while the rabbis hold that one who sells, sells with an evil eye (i.e., sparingly).
If this is so, the rabbis suggest that a person will include as little as possible in a sale — absolutely no more than is stated in black and white on the deed. Therefore, the seller does not have to buy back access to the water feature. In contrast, Rabbi Akiva believes that people are more generous when they sell a piece of property and if there is no specific indication otherwise, we assume that the seller sold everything, including the access path. So Rabbi Akiva holds that the seller has to buy back some land to use the cistern.
This is one way to explain the difference of opinion, but it is not the only way. The Gemara, as is its way, offers an alternative.
Rabbi Akiva holds that a person does not want to spend their money on the purchase of a house and then have others tread upon their property.
And the rabbis hold that a person does not want to receive money for the sale of their house and then have to fly through the air in order to reach their pit.
As in the previous explanation, Rabbi Akiva holds that the path is not included in the original sale. He requires the seller to buy it back so that they do not trespass through the buyer’s land to get to their property, potentially creating conflict. The rabbis, on the other hand, suggest that no one in their right mind is going to maintain ownership of a cistern that they can’t use. So, unless they can actually fly through the air, they are going to maintain ownership of a path that allows access to the cistern as well. Thus the rabbis exclude the pathway from the original sale.
The mishnah cited above ends by discussing the inverse scenario in which the seller keeps their house, but sells the pit or cistern that is found on their property. In this case, the positions seem to be reversed: Rabbi Akiva holds that the buyer need not purchase a path to the pit separately, as it is included in the sale, and the rabbis require the buyer to do so because it is not included.
This suggests a third possibility for what separates Rabbi Akiva and the rabbis:
Rabbi Akiva holds that we follow the intention of the buyer, and the rabbis hold that we follow the intention of the seller.
In other words, Rabbi Akiva holds that we include a path to the cistern in the original sale agreement because that is what the buyer intends to buy — whether they are buying the house or the cistern. And the rabbis exclude the path from both because that is what is in the mind of the seller.
This is a quintessential talmudic conversation, one that highlights the differences between the Mishnah and the Gemara. Here, the Mishnah presents two scenarios and two opposing legal opinions about each. It’s comfortable with their disagreement and says nothing else about it. The Gemara, on the other hand, is far more curious: What are the legal principles that underlie this dispute? How many of them can we think of? What logic supports them? Which consistently explains the positions of the different parties?
Some enjoy the straightforwardness of the Mishnah; others, the twists and turns of the Gemara. If you ask me, the magnificence of the Talmud is how it brings them both together.
Read all of Bava Batra 64 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on August 28, 2024. If you are interested in receiving the newsletter, sign up here.
