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1) ACQUIRING THE HEIGHT AND DEPTH (cont.)

(a) Support (for Rav Dimi - Mishnah): The roof (is not included) if it has a Ma'akah 10 Tefachim tall.

1. If the depth and height are included even though he did not write them, even if it has a Ma'akah of 10 Tefachim, it should be included!

(b) Rejection: No, a roof with a Ma'akah 10 Tefachim tall is important, it is not included.
(c) (Ravina): We may learn from (what Rav Papa said in) the above discussion!

1. (Reish Lakish): (The Beraisa of Ma'aser) teaches that one who sells a house and stipulates 'on condition that the top is mine', the top is his.
2. Question: What law do we learn from this?
3. Answer #1 (Rav Zvid): He is allowed to extend ledges from it.
4. Answer #2 (Rav Papa): He is allowed to build another story on top of it.
5. If the depth and height are included in the sale when he did not write them, the seller would not need to write them!

(d) Rejection (Rav Ashi): He must write them to secure the right to rebuild it if it falls.

(a) (Mishnah - R. Akiva): If Reuven sold his house to Shimon; Shimon does not acquire the pit and cistern, even though Reuven wrote 'the depth and height';

1. (If Reuven wants to use them) he must buy the rights to a path to them.

(b) Chachamim say, (he may use them,) he need not buy a path.
(c) R. Akiva admits, if Reuven sold his house 'except for the pit and cistern', he need not buy a path.
(d) R. Akiva says, if Reuven sold his house to Shimon, and the pit and cistern to Levi, Levi need not buy a path;
(e) Chachamim say, he must buy a path.
(f) (Gemara - Ravina) Question: Why must the Mishnah teach both a pit and cistern?
(g) Answer (Rava Tofa'ah - Beraisa): A pit and cistern are essentially the same; a pit is merely a hole, a cistern is a building (of stones) inside a pit.
(h) (Mishnah - R. Akiva): Reuven must buy a path; Chachamim say, he need not...
(i) Suggestion: R. Akiva holds that a person sells generously (he does not retain a path for himself), Chachamim hold that a person sells stingily.

1. In many places, we say that R. Akiva holds thusly - our Mishnah is the source!

(j) Rejection: No, we can say that R. Akiva holds that a person does not pay for a house on condition that others will have rights to walk through it (so we assume that a path is not retained);

1. Chachamim hold that (a seller) would not take money and lose all access to his property (which he retained).

(k) Suggestion: From the end of the Mishnah, we may derive their positions regarding selling generously or stingily.

1. (End of the Mishnah - R. Akiva): If Reuven sold his house to Shimon, and the pit and cistern to Levi, Levi need not buy a path; Chachamim say, he must buy a path.

(l) Rejection: No, perhaps R. Akiva holds that (Levi's) objection to not having access to his pit overrides (Shimon's) objection to people walking through his house (therefore, Reuven gives Levi a path), and Chachamim hold the opposite.
(m) Suggestion: From another Mishnah we may derive their positions.

1. (Mishnah - R. Akiva): (One who sells a field) does not sell the pit, winery or dovecote, whether these are barren or full; he must buy a path to them;
2. Chachamim say, he need not buy a path.
3. Question: If their reasons are as above (people's objection that others walk through their property, or having access to his property), we already know this from our Mishnah, why was the argument repeated?
4. Answer: Rather, we must say that R. Akiva holds that a person sells generously, Chachamim hold that a person sells stingily.

(n) Rejection: Perhaps we must teach the argument regarding a house and regarding a field.

1. If we only taught regarding a house, one might have thought that only in a house (R. Akiva says that) privacy (of the buyer) is the greater concern;
2. If we only taught regarding a field, one might have thought that only there (R. Akiva says that the seller does not keep a path) because trampling on the field harms the field.

(o) Rather, from the end of the Mishnah, we may derive their positions.

1. (End of the Mishnah - R. Akiva): If Reuven sold his field to Shimon, and the pit, winery or dovecote to Levi, Levi need not buy a path; Chachamim say, he must buy a path.
2. Question: If their reasons are as above (they argue which is stronger, people's objection that others walk through their property, or having access to his property), we already know this from the end of our Mishnah, why was this repeated?
3. Answer: Rather, we conclude that R. Akiva holds that a person sells generously, Chachamim hold that a person sells stingily.