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Bava Basra, 67

1) THE STATUS OF A HOUSE

QUESTION: The Gemara discusses whether an Itzteruvil (see Background to Bava Basra 65:11) -- which was formed into a Kli before it was attached to the ground -- is considered like Talush (a Kli that is not attached to the ground) or Mechubar (attached to the ground). According to the RASHBAM, the Gemara is addressing the opinion of the Rabanan, who rule that when a person sells a house, the Machteshes Kevu'ah -- which was formed into a Kli and then attached to the ground -- is not sold together with the house. The Gemara is asking whether the Rabanan hold that an object that was not attached and then was attached to the ground is considered Talush, and that is why it is not sold with the house (because only objects that are attached are sold with the house), or whether they hold that such an object is considered Mechubar, and it is not sold with the house because a seller sells with an "Ayin Ra'ah."

The Rashbam asks how can the Rabanan hold that something which was made into a Kli and then attached to the ground -- "Talush v'liv'Sof Chibro" -- be considered Talush if the Rabanan themselves say that an Itzteruvil *is* sold with a house, even though it is also something which is "Talush v'liv'Sof Chibro?" The Rashbam answers that the Itzteruvil is made with the primary intention of being attached to the house, and therefore it is considered part of the house with regard to the sale of the house, just like the walls of a house sold with the house, even though they are considered Talush with regard to the law of Hechsher Zera'im.

It seems from the Rashbam that the walls of the house are judged like every other object which is "Talush v'liv'Sof Chibro." Why, then, do we find that when a person finds a house on the property of a Ger who died without heirs and he draws pictures on its wall, he is Koneh the house through a Kinyan Chazakah? Why should he be Koneh the house with a Chazakah? It should depend on whether something which is "Talush v'liv'Sof Chibro" -- such as the actual structure of the house -- is considered Talush or Mechubar. If it is considered Talush, then a Kinyan Chazakah should not be a valid Kinyan!

ANSWERS:

(a) The REMA (CM 95:1) cites a Machlokes regarding whether or not is "Talush v'liv'Sof Chibro" is considered like Karka or not. He cites the RASHBAM and RABEINU CHANANEL who rule that it *is* considered like Karka. He then cites the BA'AL HA'ITUR who rules that a pipe that was attached after it was carved out is not considered Karka. The SHACH asks that the SHULCHAN ARUCH in a number of other places seems to assume that a house is considered like Karka. The Shulchan Aruch (CM 227:32) rules that the law of Ona'ah does not apply to money paid for the rent of land, because such money is considered like land (as our Gemara says) and Ona'ah does not apply to land. The Shulchan Aruch continues and says that even if a person rents a large palace for a single Dinar per year, or a small barn for a Dinar per day, there is no Ona'ah. The Rema should point out that according to the Ba'al ha'Itur there *is* Ona'ah, since the money was paid for the use of the house (which is not considered Karka) and not only for the use of the land!

The SHACH concludes that even the Ba'al ha'Itur might agree that a house is different than a Kli, or even a wall, that is attached to the ground after it is made. Since a house is made to shelter the ground that it covers and to serve the people who inhabit it, it is considered Mechubar according to all opinions. This also explains why a house can be acquired through a Kinyan Chazakah. Similarly, a creditor may appropriate a house as repayment for a loan (made with a Shtar) from those who purchased the house from the debtor; the house is Meshu'abad to the loan just like land. He points out that Tosfos writes in a number of places that a house is considered to be Mechubar with regard to several Halachos, such as with regard to the Shevu'ah or the Chiyuv of a Shomer (Tosfos in Shevuos 42b, DH Shomer Chinam) and Ribis (Tosfos in Bava Basra 61a, DH Im Eino).

(b) The KETZOS HA'CHOSHEN points out that the Rashbam here clearly does not agree with this. The MAGEN AVRAHAM (OC 637:7) also disagrees with the Shach and writes that the proof from Kinyan Chazakah is not a strong proof, because the Chazakah is made on the land, and the house is acquired only through Kinyan Agav (or, in the case of land that is Hefker, through Kinyan Chatzer, as the Ketzos ha'Choshen adds). Tosfos, who writes that a house is considered Mechubar, is ruling like Rabeinu Chananel, who says that something that is "Talush v'liv'Sof Chibro" is considered like Karka.

With regard to a Shi'abud, it is possible that one can collect a house as repayment for a loan even if is "Talush v'liv'Sof Chibro?" is not considered like Karka, because a Shi'abud depends on Semichus Da'as -- a person feels c onfident in his ability to collect a house as repayment for his loan, since a house is not dismantled and moved like other Metaltelin. (See Insights to Bava Kama 12:1, where we explain that the reason why the Rabanan have a special status to Karka in most Halachos d'Rabanan is because of Semichus Da'as, and not because it is an essentially different form of property than Metaltelin. The Ketzos ha'Choshen gives a different reason to explain why the Halachah of Shi'abud might be different than other Halachos with regard to houses).

67b

QUESTION: The Mishnah teaches that when a person sells an oil-press and specifies that he is selling "the press *and all that is in it*," the "Achirim," or slats that cover the olives being pressed (see graphics), are also sold.

However, a Beraisa cited in the Gemara seems to contradict this. The Beraisa teaches that whether or not one says that he is selling "the press *and all that is in it*," the Achirim are *not* sold! How do we reconcile this with the Mishnah?

The question is exacerbated according to the Girsa of the Rishonim (Rif, Rosh, Ramah and others) who quote the Beraisa as saying that in either case, neither the "Achirim, *Galgal or Korah*" are sold. But our Mishnah says that all three *are* sold when one specifies that he is selling "the press *and all that is in it*!"

ANSWER: The ROSH, RITVA and other Rishonim explain that the Beraisa argues with the Mishnah with regard to Achirim, Galgal and Korah. The Halachah follows the opinion of the Mishnah, in accordance with the rule that a Mishnah's teaching always takes precedence over that of a Beraisa.

Because of this, the Rosh wonders why the RIF cites the Beraisa as is, if it is not l'Halachah. The Rif usually cites only the Halachic portions of the Gemara. The NIMUKEI YOSEF explains that the Rif agrees with the other Rishonim that we do not rule like the Beraisa when it comes to the Achirim, Galgal and Korah. He mentions the Beraisa only because of the other points that the Beraisa makes which do not contradict the teachings of our Mishnah.

(See also RASHASH, Rav SIMCHA MI'DESVA and the PNEI SHLOMO who add that from the words of the Rashbam in DH Machar Es ha'Nesarim, it appears that he did not have these problematic words in his Beraisa in the first place.)