Translation:Shulchan Aruch/Choshen Mishpat/214

Paragraph 1- If one sells an item that has accessories, he will not have sold the accessories unless he explicitly says so. How so? If one sold a house he will not have sold the annex that surrounds the house, even if it opens into the house. There are those who say this is true even where he sold the outer borders. When is this true? Where the width of the annex is four amos or more. If it was less than that amount, however, it is considered part of the house, even if did not open into the house. Similarly, the upper story on top of the house which opens to the house via a skylight on the plaster of the house, is considered part of the house. This is all true only at the time of the sale or gift. If one confessed to selling or giving his house to another, however, everything is included because the party only needs to confess on the general matter, not on all the specifics.

Paragraph 2- If one sells a house, he has not sold the room on the inside of the house, even where they specified the outer borders. There are those who say that this is only where the room was more than four amos wide. He will not have sold the roof in a case where the roof has a fence 10 tefachim high and four amos wide. He will not have sold the pit or cistern, even if the seller wrote that he is selling the depths and heights and even if he specified the outer borders and also wrote that he did not exclude anything in this sale. There are those who disagree where he wrote he did not exclude anything. The seller must acquire a path from the buyer to be able to enter into this pit or cistern that was excluded. If the seller says he is selling the house other than the pit or cistern, the seller would not need to acquire a path. Similarly, if one just sells a pit or cistern, the buyer does not have to acquire a path. Rather, he can enter into the seller’s home until the cistern and fill up. When is this true? Where the buyer has no path other than this. If he has another path, however, he would have no rights to the path in the seller’s house.

Paragraph 3- If one sells a house to another, even he wrote that he is transferring the depth and heights, he still must write that he should acquire from the floor of the depths until the ceiling of the sky, because the depths and heights are not acquired by default. By acquiring the depth and height, the buyer would just acquire the height, meaning just the airspace, and the depth, meaning the thickness of the ground. He would not, however, acquire structure in the depth and airspace. Now that the seller writes that he is transferring from the floor of the depth until the ceiling of the sky, the buyer would acquire the pits and cisterns that are in the depths of the ground and the excavations that are between the plasters above, as well as the roof that was 10 tefachim high and four tefachim wide. If it was not four tefachim wide or 10 tefachim high, however, it is considered part of the house, and the buyer would acquire such a roof, even if he did not write the depths and heights.

Paragraph 4- If the seller did not write “depths and heights” at all, but just sold the house without specification, the buyer would have no rights to the airspace on the roof of the house or below, whether in the house or the courtyard, because he will only have acquired up until the walls of the courtyard. If he wanted to raise and build on the airspace of the house or dig underneath the ground, he would not be permitted to do so because the depths and heights would be excluded. If the seller wants to build on the airspace on top of pillars, he may do so. He cannot, however build on the walls he sold. Similarly, if he wants to dig on the house underneath the ground, he may do so long as he does not damage the homeowner with his digging. There are those who say that he cannot dig underneath the ground so that he does not damage the homeowner. If so, of what use is it that he excluded the depths? If the buyer were to dig pits, ditches and caves, they would belong to the seller. There are those who write that if the seller sold his ruins and did not write the height, because a ruin is generally intended to be built, the buyer would have the right to the airspace for the height of a house, which is the amount needed for a person to enter with an average bundle on his head and leave without having to bend his head. When one sells a field or vineyard, the buyer will acquire the height by default because they are not made to have something built on top of them and a seller would not exclude. The buyer would not, however, acquire the depths because they are made to have pits dug underneath. Where the seller writes, “the depth and the height,” if the buyer wants to raise and build in the airspace or go down and dig, he may go down or raise. He would not, however, acquire the constructions in the depths or airspace. If the seller wrote “from the floor of the depths to the ceiling of the sky,” the buyer would acquire everything, even if he did not write “the depths and the height.” If Reuven sold a house to Shimon and wrote, “from the floor of the depths to the ceiling of the sky,” and he owned an adjacent house and a bathroom goes from the house Reuven kept to the house he sold, the buyer cannot close up the ditch that is under the house because Reuven did not sell to have his house ruined. The same applies to anything similar.

Paragraph 5- There are those who say that when it comes to a courtyard, the buyer will acquire the entire airspace, even if the seller did not write “height” because there is no defined area above. There are those who disagree, as will be discussed shortly. It seems to me that the appropriate way to rule is in accordance with the view of those who disagree. If one sold a house to Reuven and did not write “the depths and the heights,” in which case Reuven would not acquire the airspace above, and then that same seller sold all of his houses to Shimon, Shimon would not acquire the airspace over the house that was sold to Reuven. Even if he wrote to Shimon, “from the floor of the depths to the ceiling of the sky,” this house was already sold to Reuven and the seller only excluded the airspace for himself, which is of no substance and cannot be transferred, as was discussed above in Siman 212. If there is a roof on the house that was sold to Reuven, given that it was sold to Shimon because it has substance, the airspace on the roof would also be sold. Similarly, if the house is in the seller’s courtyard and he sold the courtyard and everything inside, the airspace would be sold with it and Shimon, who had acquired the courtyard, would acquire the airspace.

Paragraph 6- If one sells a house to another and did not write “the depth and height,” and the house fell, the buyer can only rebuild a house the same size as the first. Even if the seller wrote “the depth and the height,” if there was an upper story built on pillars, because the buyer would not acquire the upper story, the seller may rebuild it. If the seller sold the upper story to someone else and it fell, however, the buyer would lose the rights and would not be able to rebuild. One who acquires the upper story built on a house, however, may rebuild the upper story if the house fell.

Paragraph 7- If one sells a house to another that is in a large building, even if the seller specified the outer borders, and even if there are some who refer to a large building as a house, the buyer would only acquire the house and the borders he drew up were just drawn up generously. Had the seller wanted to sell the entire building, he would have wrote “and I have not excluded anything at all from this sale.” Even if the seller wrote such language, if there is not even a minority of people there who calls a big building, a house, the buyer would only acquire the house. If everyone calls a large building a house, whereas they do not call a solo house a house unless they specify a “solo house,” then the buyer would acquire the entire building, even if the seller did not specify the outer borders. If one gives another 1/8 of such and such house that he owns, and it is later discovered that the donor only owns ½ or ¼ of the house, we do not say he would give him 1/8 of his portion. Rather, we follow the way people typically speak and he certainly meant 1/8 of the entire house. See later 218:21.

Paragraph 8- If one sells his house to another with the condition that the upper floor belong to him, it would belong to him. If he wants to create protrusions, he may do so. If it fell, he may rebuild it. If he wants to build on top of it, he may build as it was before. The same would apply if the seller said he is selling with the exception of a pit or cistern or something similar.

Paragraph 9- If one house was within another house, and the transferor transferred both together to two people, whether via sale or gift, neither recipient has rights to a path in the other. It goes without saying that if the transferor gifted to the outer recipient and sold to the inner that the inner recipient would have no right to a path. If he sold to the outer recipient and gifted to the inner recipient, however, the recipient would have rights because anyone who gifts gives more generously than when he sells.

Paragraph 10- When is this true? Where the transferor transferred to both of them simultaneously. If he sold or gifted to the inner recipient and then sold or gift to the outer recipient, however, as soon as the inner recipient would acquire, he would obtain rights to a path and would not lose that path later. Similarly, if he sold to the outer recipient and gifted to the inner recipient, if the outer sale was first, the inner recipient would not obtain a path.

Paragraph 11- If one sells a house, he has sold all the affixed items, such as the door, the bolt, the lock, the lower milestone, the fixed mortar, the oven, the double-stoves and the hand mill if they are affixed, and bricks of the entrance that are attached with cement. There are those who say that an attachment via pegs is not called being attached. He will not have sold the key, even if it is affixed to the door, nor would he sell the movable mortar, the upper stone, the frames of the legs of the bed or the frames of the window, even if they are attached with cement, because they are made for beauty purposes. If the seller said he is selling the house “and everything inside it,” all these items would be sold, but he would not have sold the roof, the mattress, the pit, the cistern or the tunnels. There are those who say that where one writes “whatever is inside,” it is as if he wrote “and I am not excluding . . .” See earlier in this Siman in seif 2.

Paragraph 12- If one tells another that he is giving him a house from his houses, he can give the smallest house he has. If one house fell, he can direct him to the house that fell because the document-holder has the lower hand. The same applies where one says he is selling an ox from his oxen. He cannot, however, give him the upper story. If he just said that he is selling a house to him, however, he can give him the upper story because that is also called a house.

Paragraph 13- If one sells an area to another to create a house or barn- and the same would apply if one contracts with another to create a wedding-house for his son or a widow-house for his daughter or he agreed to do it for him- he would make an area of 4 x 6 amos for him. If he sold him a large house, it would need to be 8 x 10 amos. If he sold an area for a large house, it would need to be 10 x 10 amos. If he sold a large mansion-courtyard, an area of 12 x 12 amos would be included aside from the width of the walls. The height of each type of house is equal to half of its length and width.