Bava Basra Daf 064 – HaMocher B’Eyin Yaufee Mocher

HaMocher B’Eyin Yaufee Mocher

Bava Basra Daf 064

  1. Rav Dimi’s din-
    1. The ground under a house or the airspace above a house is not automatically included in the sale of a house unless it’s stated in the contract.
    2. The well in the house also is not automatically included in the sale of the house unless specifically included.
  2. Mishna:
    1. The well isn’t included in the sale of a house and remains the property of the seller.
    2. According to R. Akiva the seller would have to buy the path to his well from the buyer.
      1. Sellers sell completely – they don’t leave over parts for themselves and always include everything that the buyer would need for what he is buying.
    3. According to the Chochumim sellers do leave over for themselves and they don’t always include everything that the buyer would need for what he is buying.
  3. Gemora:
    1. Bor is a well made of firm dirt walls
    2. A Dus is a well dug in soft dirt and needs stones lining its walls in order to retain its form.
  4. The Machlokes between R. Akiva and the Rabbonen- where R. Akiva held that the seller needs to buy back a path to his well and the Rabbonen hold he doesn’t.
    1. This Machlokes seems to be based on whether the Mocher sells with Eyin Youffe or with Eyin Rah.
    2. The Gemora suggests that this Mishna could be the Mekor of this din of R. Akiva that we see in other places throughout Shas. Mocher sells with Eyin Youffe or with Eyin Rah.
  5. This Mishna however could be a different Machlokes about whether we give preference to the Tinah of the buyer or of the seller.
    1. Buyer’s Tinah is that he buys a house and doesn’t expect people to be walking regularly through his property (ie. to get to his well).
    2. The Mochers Tinah is that he would never sell a property and give up his access to the well that is his.
    3. R. Akiva gives strength to the buyers claim and the Rebbonen give strength to the Mochers claim.
  6. In conclusion the Mekor of R. Akiva’s din that the Mocher sells with Eyin Yauffe and the Rebbonen who hold that the Mocher sells with Eyin Rah is the sefe of a later Mishna.

 

Read More