These days, when you buy a house it is not guaranteed that the refrigerator and washing machine come with it — these things have to be included in the contract. Similarly, in antiquity, house sales did not necessarily include all appurtenances. The mishnah on today’s daf stipulates:
One who sells a house has, as part of the sale, sold also the door, but not the key. He has sold any mortar that is fixed in the ground, but not a portable one. He has sold the immovable lower millstone, but not the portable upper stone. And he has sold neither the oven nor the double stove. When the seller says to the buyer: “I am selling you it, and everything that is in it,” all these components are sold as part of the sale of the house.
The mishnah explains that immovable elements, such as a door or built-in mortar or lower millstone, are automatically included in the sale of a house. Moveable elements, such as a key or upper millstone, are not included in the sale — unless the seller explicitly states that all of the house’s components are being transferred. The Gemara contrasts this with a teaching from Rabbi Meir:
Let us say that the mishnah is not in accordance with the opinion of Rabbi Meir. As if it is in accordance with the opinion of Rabbi Meir, doesn’t he say in a beraita: “If one sold a vineyard, he has sold all of the utensils of the vineyard”?
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Rabbi Meir taught that sale of a vineyard includes all the equipment associated with that vineyard, which suggests he would feel similarly about selling a house. But the Gemara insists these two cases are not fully comparable:
You may even say it’s in accordance with the opinion of Rabbi Meir: There (in the case of a vineyard), utensils are kept in a designated place in the vineyard, while here (in the case of a house), utensils are not necessarily kept in a designated place in the house.
Perhaps everyone agrees that items which remain permanently in one place are included in the place’s sale, whereas those which are not require specification — and vineyard accessories are evidently kept in the vineyard. While this resolution is a neat one, the Gemara ultimately dismisses it:
But doesn’t the mishnah teach the halakhah governing a key in similar fashion to the halakhah governing the door, indicating that just as a door is fixed in the house, so too, a key is fixed in the house? Rather, it is clear that the mishnah is not in accordance with the opinion of Rabbi Meir.
The Gemara infers that the mishnah isn’t referring to a small key one might regularly carry about, but the larger sort that typically remains permanently by the door and is used for that particular opening.(Perhaps a modern-day equivalent would be a keypad that opens the door with a code, as opposed to a metal key one can pocket.) Therefore, the Gemara concludes, storage location can’t be the primary distinguishing factor determining which items are included in the sale, and so our mishnah — which indicates that portable utensils, even those that are normally in a specific location in the house, are not included automatically in a property sale — cannot be aligned with the opinion of Rabbi Meir.
If storage location isn’t the determining factor for our mishnah in determining which items are or aren’t included in a sale, what is? The Gemara brings a very similar beraita to answer this question:
The sages taught: One who sells a house has sold the door and the door bolt and the lock, but he has not sold the key. He has sold the mortar that was hollowed out of the ground but not the mortar that was fixed to the ground after its construction. He has sold the immovable lower millstone but not the portable upper stone. And he has sold neither the oven, nor the double stove, nor the hand mill. Rabbi Eliezer says: The principle is that any item attached to the ground is considered like the ground and included in the sale.
The conclusion is that while being permanently located in a space is not enough to automatically include an item in the property’s sale, once something is attached to the ground and truly can’t be removed without significant effort, it’s treated like the ground itself, and sold along with the house.
Read all of Bava Batra 65 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on August 29, 2024. If you are interested in receiving the newsletter, sign up here.
