Talmud - Bava Batra 65a בבא בתרא ס״ה א׳

The halakha is in accordance with the statement of the Rabbis, while Rav Yirmeya bar Abba says that Shmuel says: The halakha is in accordance with the opinion of Rabbi Akiva. Rav Yirmeya bar Abba said to Rav Huna: But many times I said before Rav that the halakha is in accordance with the opinion of Rabbi Akiva, and never did he say anything to me, which indicates that he holds that the halakha is in accordance with the opinion of Rabbi Akiva and not that of the Rabbis. Rav Huna said to him: How did you teach the mishna before Rav? Rav Yirmeya bar Abba said to him: I taught it with the opposite attributions, that is to say, the opinion that is attributed in the mishna to Rabbi Akiva, I would teach in the name of the Rabbis. Rav Huna said to him: Due to that reason, he never said anything to you, as Rav agreed with the version that you attributed to Rabbi Akiva.

With regard to the opinions of Rav and Shmuel, Ravina said to Rav Ashi: Shall we say that Rav and Shmuel, in their opinions stated with regard to this matter, each follow their general lines of reasoning, as they appear to have disagreed about this same issue in another context as well?

As Rav Naḥman says that Shmuel says: With regard to brothers who divided their father’s estate between them, they do not have a right of way against each other, i.e., to walk through the other’s property to reach his own, even though this is how the place was used in their father’s lifetime; nor do they have the right of ladders against each other, i.e., the right to set up a ladder in the other’s property in order to get to his own; nor do they have the right of windows against each other, i.e., the right to prevent the other from building a wall facing his windows; nor do they have the right of a water channel against each other, i.e., the right to pass a water channel through the other’s property.

Rav Naḥman continues: And be careful with these rulings, since they are established halakhot. And Rav says: They do retain all of these privileges. Consequently, Rav and Shmuel appear to be following their general lines of reasoning here, as Shmuel holds that when the brothers, who are like sellers, divide their father’s estate, they transfer property to each other generously without retaining privileges in each other’s property, while Rav holds that they transfer the property sparingly.

The Gemara comments: Nevertheless, it was necessary to teach this disagreement in both cases, as the halakha in the one case cannot be derived from the halakha in the other. As had we been taught this dispute only in that case, of the brothers who divided their father’s estate, I would have said that only in that case does Rav say that they retain all of the earlier privileges, because one brother can say to the other: I wish to live in this house just as my ancestors, who had all of those privileges, lived in it. Know that there is substance to this claim, as it is written: “Instead of your fathers shall be your sons” (Psalms 45:17). But in this case of an ordinary house sale, say that he concedes to Shmuel that a seller sells generously.

And if the dispute was stated only in this case of an ordinary house sale, I would have said that only in this case does Shmuel say that a seller sells generously and does not withhold a path for himself, but in that case, of the brothers who divided their father’s estate, say that he concedes to Rav that the desire to live there just as his ancestors did supersedes the seller’s general tendency to sell generously. Therefore, it was necessary to teach this dispute in both cases.

As for the ruling itself, Rav Naḥman, who was a disciple of Shmuel, said to Rav Huna: Is the halakha in accordance with our opinion, or is the halakha in accordance with your opinion? Rav Huna said to him: The halakha is in accordance with your opinion, as you are near the gate of the Exilarch, where the judges are frequently found, and therefore you are more proficient in monetary law.

§ It was stated: If there are two residences, one situated behind the other, and the owner transferred ownership of the two of them, each one to a different person, by means of a sale, or if he transferred ownership of the two of them, each to a different person, as a gift, they do not have a right of way against each other. That is, the one who acquired the inner residence may not pass through the outer residence, since each of them received equal privileges from the previous owner. And all the more so is this the halakha if the outer residence was transferred by means of a gift, and the inner residence was transferred by means of a sale, as it may be assumed that a gift is made in a more generous manner than is a sale.

As for the case where the outer residence was transferred by means of a sale, and the inner residence was transferred by means of a gift, some Sages at first understood from here that they do not have a right of way against each other, that is, that the recipient of the inner residence may not pass through the outer residence.

But that is not so, as didn’t we learn in a mishna (71a): In what case is this statement, that these items are excluded, said? It is said with regard to one who sells a field, but with regard to one who gives it away as a gift, it is assumed that he gives all of it, including everything found in the field. Apparently, one who gives property as a gift gives it more generously than does one who sells it, as gifts are generally given to friends to whom one wishes to transfer as many privileges as possible. Here too, then, one who gives property as a gift gives it more generously than does one who sells it, and so the recipient of the inner residence acquires a right of way through the outer apartment.

MISHNA: One who sells a house has, as part of the sale, sold also the door, but not the key. He has sold the mortar that is fixed in the ground, but not the portable one. He has sold the immovable lower millstone [ha’itzterobil], but not the portable upper stone [hakelet], the funnel into which one pours the grain to be ground. And he has sold neither the oven nor the double stove, as they are deemed movable. When the seller says to the buyer: I am selling you it, and everything that is in it,

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

BavaBatra 65a examines a dispute between the Rabbis and Rabbi Akiva on halakhic rulings, plus Rav and Shmuel's debate over inherited property rights among brothers.