Bava Basra, Chapter 4, Mishnah 9 - the last mishnah of the chapter. This mishnah is a direct continuation of the previous mishnah, where we dealt with the question of what is included in the sale of a field, and now the mishnah comes to detail what is not included in it.
Things that are not included in the sale of a field:
"Aval lo machar lo es ha'avanim she'einan letzorkah" - But he did not sell him the stones that are not for its needs. In the previous mishnah we learned that stones designated for the needs of the field, such as for building a fence around it, are included in the sale. Other stones lying in the field remain separate and detached from it, and even after he sells his field, the seller may say: The field is yours, but I am taking the stones scattered in it for my own needs.
"Velo es hakanim shebakerem she'einam letzorkah" - Nor the reeds in the vineyard that are not for its needs. Sticks, pegs, and poles lying in the vineyard area which are not currently serving the vineyard are not secondary to it and are not included in the sale, and the seller takes them with him.
"Velo es hatevuah shetelushah min hakarka" - Nor the produce that is detached from the ground. Produce attached to the ground is transferred with the sale of the field, as we learned in the previous mishnah, but detached produce is not included in the sale, and the seller takes it with him.
"Bizman she'amar lo hi vechol mah shebesochah - harei kulan mechorin" - When he said to him, "It and everything in it," they are all sold. If at the time of the sale the seller said, "I am selling you the field and everything in it," then the detached produce, the reeds next to the vineyard, and the stones lying in the field - all of them are included in the sale, as he explicitly said, "everything in it."
"Bein kach uvein kach" - Seven things that are never included:
There are things that are not included in the sale, whether he said "it and everything in it" or whether he did not say it, and they are:
"Mechitzas hakanim shehi beis rova" - A partition of reeds that is a beis rova. A thicket of reeds whose size is a beis rova or more, meaning ten and a half amos by ten and a half amos. Such a large area is considered a separate and significant area in its own right, and even if it is located right in the middle of the field, the seller presumably intended to exclude it from the sale.
"Velo es hashomerah shehi asuyah betit" - Nor the watchman's booth that is made of mud. A watchman's booth that is not temporary, but made of mud like an actual structure. It is a separate structure, and even if he said "the field and everything in it," he did not intend to include it, and he may keep the rights to it for himself or sell it separately.
"Velo es hecharuv hamurkav" - Nor the grafted carob tree. A carob tree that has already been used for grafting branches; a developed, invested, and significant tree, which constitutes a separate means of production distinct from the field.
"Velo es sedan hashikmah" - Nor the sycamore stump. A stump of a sycamore tree that has been cut once and will grow back as a straight, long trunk used for beams. It is an important and separate entity in its own right, which is not secondary to the field.
"Velo es habor" - Nor the cistern. The water cistern in the field, which is a separate matter in itself.
"Velo es hagas" - Nor the winepress. The facility for treading grapes.
"Velo es hashovach" - Nor the dovecote. The place where doves are raised commercially, which is a separate structure.
"Bein charevin bein yeshuvin" - Whether ruined or settled. It makes no difference whether the cistern, winepress, and dovecote are currently in use or are empty and idle, meaning they have no water, wine, or doves in them, but they were used in the past and are fit to be used again. In any case, they are not included in the sale of the field, even if he said "it and everything in it."
The dispute between Rabbi Akiva and the Chachamim - a generous eye or a stingy eye:
Here the mishnah returns to a dispute we have already encountered twice in this chapter, regarding the nature of a sale:
According to Rabbi Akiva: A person sells with a generous eye, generously and open-heartedly, and therefore everything is included and the sale is complete.
According to the Chachamim: A sale is somewhat of a zero-sum game, and therefore a person holds back for himself whatever he can. He sells with a stingy eye, from a restrictive approach, and retains for himself whatever is possible.
We saw this earlier: If one sells a house and there is a cistern in its cellar, the cistern is not included in the sale. According to Rabbi Akiva, since he sold the house, he sold all the rights with it, and if he wishes to use his cistern, he will have to negotiate anew for the right of access to it. The Chachamim, however, say that a person retains the rights for himself, as he sells in the most restrictive manner, and he does not need to purchase new rights to access his cistern.
That same discussion and that same focus appear here word for word in our Mishnah, except that this time it deals with a field rather than a house. The Gemara asks: Why is the matter taught twice? It answers that otherwise, there would be room to say that the law of houses is different, since in a house there is the concept of privacy, and its reality is stricter than an open field where there is less privacy. The Mishnah comes to emphasize that privacy is not the main issue, but rather the way a person relates to his sale.
The halachah, as mentioned, follows Rabbi Akiva, that a person sells generously and wholeheartedly without reserving rights for himself. Therefore, the Mishnah states that the seller "tzarich likach lo derech" - must purchase a path for himself. Even though he did not sell the cistern, the winepress, and the dovecote, he will be required to buy separate rights to access them, for when he sold the field, he intended to include all of its rights. The Sages disagree and say "eino tzarich" - he does not need to, since a person sells stingily and in a limited manner, reserving for himself the right of access to the cistern or to the dovecote, and he is not required to repurchase it from the buyer.
"Umodeh Rabbi Akiva bizman she'amar lo chutz me'eilu, she'eino tzarich likach lo derech" - and Rabbi Akiva concedes that when he said to him, "except for these," he does not need to purchase a path for himself. Rabbi Akiva concedes that if he explicitly stated at the time of the sale, "I am selling you my field, except for the dovecote, the winepress, and the cistern," he certainly intends to return and go there. The matter was clarified to the buyer, and consequently, the preservation of the right of access to the cistern, the winepress, or the dovecote was included in the sale, and the seller does not need to buy new rights.
"Machran le'acher" - if he sold them to someone else: The Mishnah continues in the same manner it adopted earlier in the chapter, to the opposite case - where the seller does not sell the field but rather the economic asset within it, the cistern, the winepress, or the dovecote. Rabbi Akiva says "eino tzarich likach lo derech" - he does not need to purchase a path for himself. The one who sells the cistern sold along with it the right of access to it, for he sells generously, and the buyer does not need to purchase a right of access to the cistern he bought. The Sages say "tzarich likach lo derech" - he must purchase a path for himself. A person sells stingily, and although he sold ownership of the cistern and the dovecote, he did not sell the access to them, and the buyer will be required to make a separate purchase of access rights.
"Bameh devarim amurim - bemocher" - when are these things said? Regarding one who sells:
Here the Mishnah looks back at the entire chapter. We dealt with the question of what is included and what is not included in a sale when the matter was not explicitly stated, and the starting point was that there is tension between the buyer and the seller, since everything the buyer receives, the seller loses. This is a kind of zero-sum game, and the only question is how much an ordinary seller is willing to concede when he says he is selling without specifying. However, all this applies only to a sale, whereas other types of transactions are not like this:
"Aval benoten matanah - zachah bekulan" - but regarding one who gives a gift, he acquires all of them. The one who gives a gift, for example to his beloved nephew, and grants him his house, his field, or his courtyard - the recipient of the gift acquires everything. All the details that we enumerated throughout the Mishnah are included, and even the keys in the doors and the like. The giver gives generously, and therefore does not reserve anything for himself. By saying, "I am giving you my field," his intention is for the field and everything within it, including the large, developed trees growing in it.
"Ha'achin shechaleku - zachu basadeh zachu bekulan" - brothers who divided an inheritance, if they acquired a field, they acquire all of them. Two brothers who inherited a field, a city, a courtyard, or a house from their father, and divided it between them - each one seeks to be the owner of his property in its entirety, in the same way the property was in their father's hands. Therefore, when they agree between themselves that this one will take the house and that one the field, the brother does not give the field without the tree within it, but rather gives it in its entirety. This is not a sale but like a gift, and therefore whoever took a specific field, everything within it - including the attached grain - transfers with it.
"Hamachazik benchasei hager - hechezik basadeh hechezik bekulan" - one who takes possession of a convert's property, if he took possession of a field, he takes possession of all of them. A convert who did not have sons after he converted, even if he had sons prior to his conversion, has no heirs according to halachah, and when he dies, his properties become ownerless and whoever comes first acquires them. One who comes to take possession of the convert's field and performs an act of acquisition through taking possession, such as building a fence or otherwise improving the property, acquires everything within it. And the same law applies to two fields adjacent to one another: when he acquired one, he acquired both of them. The one acquiring seeks to acquire everything the convert had, and we do not want to create ambiguity by virtue of which another would come and say, "You acquired the field but not the tree and not the dovecote, and I am taking the dovecote." Everything is included.
One who consecrates the field:
The final case is one who consecrates his properties, which is like giving them to the Beis HaMikdash, as if giving them to the Holy One, blessed be He. And since these are not things that go upon the altar, this is the sanctity of Temple maintenance (bedek habayis), which is intended to serve as an economic resource for the Beis HaMikdash: the field is sold, and the money is used for the maintenance of the Temple. The question is, when there are trees or attached grain in the field, are these components also included when he says, "My field is consecrated to the Beis HaMikdash"?
The Tanna Kamma says: "Hamakdish et hasadeh - hikdish et kulan" - one who consecrates the field has consecrated all of them. The law of consecration is like the law of one who gives a gift, for he is giving a gift to Heaven, and just as one who gives a gift to his nephew includes everything, so too one who gives to the Beis HaMikdash - everything is included.
And Rabbi Shimon disagrees and says that consecration is more similar to a sale than to a gift. From a monetary perspective, a person gives of his own to the Beis HaMikdash, but he does so in a limited manner, for there is no reason for him to be overly expansive in giving value to the Beis HaMikdash. If he said he is giving the field - he intended only the field, and not the detached grain within it, nor the magnificent carob tree growing in it.
Hence his distinction: things that do not grow in the field are not included, since consecration is similar to a sale; but things that actually grow from the ground, such as those significant trees, are included for a different reason - since the ground itself was consecrated, that which grows from it also absorbs its sanctity.
Thus, according to Rabbi Shimon, one who consecrates his field does not consecrate the other items within it: a dovecote is not included, and a winepress is not included. However, that which grows in the field itself, such as trees, is included, because it is attached to the ground, which is hekdesh. These are the exceptions, not the rule: Rabbi Shimon does not include the components of economic production in the field, except for the grafted carob tree and the sycamore stump, even though it is only a stump in which a graft is made - these are included, because they draw nourishment and derive benefit from the ground itself, which is hekdesh.
In summary: In this Mishnah we learned which items are not included in the sale of a field - the stones and reeds that are not needed for it and the detached grain - and which seven items are not included even if he says, "hi vechol mah shebesochah" - "it and everything within it": a reed partition that covers a beis rova, a watchman's booth made of mud, a grafted carob tree, a sycamore stump, a cistern, a winepress, and a dovecote, whether they are ruined or intact. We discussed the dispute between Rabbi Akiva and the Sages regarding a generous eye and a stingy eye and its practical difference regarding the right of way, as well as the distinction between a seller and one who gives a gift, brothers who divided an inheritance, one who takes possession of the property of a convert, and one who consecrates property, and the view of Rabbi Shimon regarding the law of consecration.