Inset image: The U.S. National Archives via Flickr
Inset image: The U.S. National Archives via Flickr
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The Art of the Deal

Talmudic rabbis regulated real estate transactions based on biblical principles of ownership and centuries of experience of the practicalities of Jewish life

Adam Kirsch
April 04, 2017
Inset image: The U.S. National Archives via Flickr
Inset image: The U.S. National Archives via Flickr

Literary critic Adam Kirsch is reading a page of Talmud a day, along with Jews around the world.

In the Talmud, as in 21st-century America, a great deal of thought and trouble goes into the subject of real estate. The rabbis didn’t have to deal with subprime lending and Fannie Mae, but they knew that the purchase of land—a house to live in, or a field to plant—was, for most people, the biggest financial and legal transaction they would ever engage in. With so much at stake, real estate deals had the potential to create major conflicts, which means that the law had to spell them out in great detail. No wonder Tractate Bava Batra, which deals largely with property transactions, is the longest section of the Talmud, running to 176 folio pages. And unlike most Talmudic law, the laws in Bava Batra are generally not biblical in origin. They are the creations of the rabbis, based on centuries of experience in regulating commercial transactions.

Last week’s Daf Yomi reading, in Chapter Four of Bava Batra, was entirely devoted to one question: When a piece of real estate is sold, what exactly is the buyer buying? Over seven pages, the rabbis lay down the rules governing several different kinds of property: cisterns, houses, olive presses, courtyards, and more. As so often in the Talmud, definitions are at stake: When we talk about a house, what do we mean? Is a house just the four walls and roof, or does it include the furniture and the key to the front door? Going case by case, the rabbis determine what implements and outbuildings belong to the property in question, and so are sold along with it, and which ones are considered extraneous, so that they must be named specifically if they are to be included in the sale. Each new detail raises vistas of potential litigation.

Take the question of pits and cisterns, which are the subject of the mishna in Bava Batra 64a. When a house is sold, does the buyer also acquire the pits and cisterns adjacent to the house, which are used to collect rainwater? The answer is no. Even though the sale of a house includes the house’s surrounding domain—the yard or courtyard—it does not include major structures in that domain, and a cistern qualifies as a separate structure. Thus if I sell you my house, but do not specifically mention the cistern in the deed of sale, I remain the owner of the cistern.

But this raises a new question: Having sold you the house and its grounds, how would I get to the cistern? Does the seller retain a right of way to his cistern through the buyer’s property? Here the authorities are divided. Rabbi Akiva says that the seller “must purchase for himself a path,” retaining part of the buyer’s land in order to clear a route to the cistern. But the Rabbis—the Talmud’s term for the majority opinion, which carries the force of law—disagree, holding that “the seller need not purchase for himself a path.” In their view, when the seller retains ownership of a cistern, it is automatically understood that he also retains the right to access it.

In the Gemara, the rabbis begin, as they frequently do, by asking about the vocabulary of the mishna. Why does the mishna mention both pits and cisterns, Ravina wonders? Aren’t these the same thing—holes in the ground for collecting rainwater? A basic principle of Talmudic analysis, however, is that there is no such thing as a superfluous word: If the mishna distinguished between pits and cisterns, some difference must exist. According to Rav Tosfa’a, it is that a pit is made “through digging alone,” while a cistern is finished with masonry walls.

But this is just terminology. What’s really at stake in the dispute between Rabbi Akiva and the Rabbis, the Gemara observes, is the question of whether “one who sells, sells generously.” Rabbi Akiva believes that a seller wants to include in the sale everything pertaining to the property in question, while Rabbis believe that a seller wants to part with as little as possible in the deal.

What’s really at stake in the dispute between Rabbi Akiva and the other Rabbis is the question of whether ‘one who sells, sells generously.’

The law follows the Rabbis, giving the advantage in a transaction to the seller. After all, “a person does not want to receive money for the sale of his house and then have to fly through the air to reach his pit.” If the seller retains ownership of the pit, it stands to reason that he has the right to access it the normal way, by walking.

In general, the Talmud holds that real estate contracts are to be construed narrowly unless they specify otherwise. For instance, “One who sells a house has sold the door, but not the key.” You might think that if you buy a house, you are entitled to the key that opens the door to the house. But this is not so, because the key is a detachable object, unlike the door, which is hinged to the wall, the key can be removed. The same distinction holds for millstones: The buyer of a house receives the lower millstone, which is fixed to the ground, but not the upper millstone, which is portable. Nor does he receive the oven, which is movable, albeit with difficulty. To get around these potential problems, the mishna instructs, the seller must specifically tell the buyer: “I am selling you it and everything that is in it.”

A similar logic prevails in the case of an olive press and a bathhouse: Fixed implements are included in the sale of such buildings, but movable ones are not, unless otherwise specified. In the course of these explanations, the Talmud goes into some detail about the tools used in such places. Because the mishna is written in Hebrew while the sages of the Gemara use Aramaic, there is often a need to translate technical terms, which had grown foreign to the Amoraim of Babylonia. Thus, in Bava Batra 67b, the mishna says that “one who sells an olive press has sold with it the yam and the memel and the betulot,” which are all immovable components. But what are these things?

The yam, it turns out, is what the Amoraim call the “lentil,” which the Koren Talmud glosses as “the round, stationary container into which the olives are placed before being crushed.” The memel is the crusher used to pound the olives, and the betulot are the posts that hold the press up. Moments like this help to explain the famous saying in Pirkei Avot, “turn it and turn it, for everything is in it.” Because the Talmud covers so much of human life in such detail, it offers a remarkably full picture of Jewish society in the first centuries CE. Reading it, you learn not only about law but about food and dress, cosmetics and jewelry, medicine and mathematics. That is why reading the Talmud stimulates the imagination as well as the reason and the memory.


Adam Kirsch embarked on the Daf Yomi cycle of daily Talmud study in August 2012. To catch up on Tablet’s complete archive of more than four years of columns, click here.

Adam Kirsch is a poet and literary critic, whose books include The People and the Books: 18 Classics of Jewish Literature.

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