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 (detached from 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 included in the sale of the house. The Gemara is asking whether the Rabanan maintain 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 maintain that such an object is considered Mechubar but it is not sold with the house because a seller sells with an "Ayin Ra'ah."

The Rashbam asks how the Gemara could entertain the possibility that the Rabanan maintain that an object that was fashioned into a Kli and then attached to the ground ("Talush v'liv'Sof Chibro") is considered Talush. The Rabanan themselves say that an Itzteruvil is sold with a house, even though it is a utensil 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. It is no different from the walls of a house which certainly are sold with the house, even though they are considered Talush with regard to the law of Hechsher Zera'im.

The Rashbam implies that the walls of the house are judged like every other object which is "Talush v'liv'Sof Chibro." Why, then, does the Halachah state 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 acquires the house through a Kinyan Chazakah? Why should he acquire the house with a Chazakah? If the walls of a house are "Talush v'liv'Sof Chibro" and thus are considered Talush, then a Kinyan Chazakah should not be a valid Kinyan.

ANSWERS:

(a) The REMA (CM 95:1) cites a dispute with regard to whether or not "Talush v'liv'Sof Chibro" is considered like Talush or Mechubar (Karka). He cites the RASHBAM and RABEINU CHANANEL who rule that it is considered Mechubar. He then cites the BA'AL HA'ITUR who rules that a pipe that was attached after it was carved out is not considered Mechubar. The SHACH asks that the SHULCHAN ARUCH in a number of other places assumes that a house is considered Mechubar and has the status of 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 the Gemara here 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 parts of a house (such as a wall), which were attached after they were fashioned, differ from a Kli. 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 explains why a house may 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 Meshubad to the loan just like land. The Shach points out that Tosfos writes that a house is considered Mechubar with regard to several laws, such as the Shevu'ah of a Shomer and a Shomer's liability (Tosfos to Shevuos 42b, DH Shomer Chinam), and Ribis (Tosfos to Bava Basra 61a, DH Im Eino).

(b) The KETZOS HA'CHOSHEN points out that the Rashbam here clearly disagrees with this approach. The MAGEN AVRAHAM (OC 637:7) also disagrees with the Shach and writes that the proof from Kinyan Chazakah is weak, 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, rules like Rabeinu Chananel who says that an object which is "Talush v'liv'Sof Chibro" is considered like Karka.

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

2) SELLING THE "ACHIRIM" WITH THE OIL-PRESS

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" (slats that cover the olives being pressed; see Graphics) are included in the sale of the press.

However, the Gemara cites a Beraisa which 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 with the press. How can the Beraisa be reconciled with the Mishnah?

This question is strengthened according to the Girsa of the Rishonim (Rif, Rosh, Ramah, and others) who quote the Beraisa as saying that even when one specifies "all that is in it," the "Achirim, Galgal, or Korah" are not sold. The Mishnah, however, states that all three are sold when one specifies "the press and all that is in it"!

ANSWER: The ROSH, RITVA, and other Rishonim explain that the Beraisa disagrees 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.

Accordingly, the Rosh wonders why the RIF cites the Beraisa as quoted by the Gemara, if it is not the Halachic opinion. The Rif usually cites only the Halachic portions of the Gemara. The NIMUKEI YOSEF explains that the Rif agrees with the other Rishonim who say that the Halachah does not follow the Beraisa with regard 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 the Mishnah.

(See also RASHASH, RAV SIMCHA MI'DESVI, and the PNEI SHLOMO who add that the words of the Rashbam in DH Machar Es ha'Nesarim imply that the Rashbam did not have these problematic words in his text of the Beraisa in the first place.)