Must A Typical Sale Be Generous?
‘A Seller Sells Generously’
(Bava Basra 71a)
Our mishnah cites Rabbi Akiva stating that a person who sold a pit or well in his field to another is assumed to have included the path thereto even though it wasn’t specified in the sale, as “a seller sells generously.” This is, in fact, the halacha (Rambam, Hilchos Mechirah 25:3, Tur, Shulchan Aruch, Choshen Mishpat 214:2).
Easy Access
Shimon bought a factory with a backyard from a builder. The understanding was that the latter would provide the necessary vehicular approach to the yard for loading. The shortest way to the yard was via the north side of the factory, but the builder wanted to grant access only from the south side, making the approach unwieldy for clients and suppliers. The question arose as to whether he could be forced to enable more generous access. Rabbi Yitzchak Elchanan Spektor, zt”l, addressed a similar case in his Nachal Yitzchak (61:4:1) and proved from the Yerushalmi that Chazal assumed that the intention of a seller is to grant the easiest access to a purchased property.
A Former Owner
Must a seller be consistently generous? The Maharsham rules that there are exceptions. The following is one example (see Responsa Maharsham 3:316). Menasheh sold his home to Efrayim, stipulating in writing that he reserved a right to display his wares on a balcony facing the street. The heirs of both sides continued the agreement until a descendant of Efrayim claimed that since a seller sells generously, he only reserved the right to display small items on the balcony. Bulkier items that disturbed the residents, he claimed, could not be displayed.
The Maharsham proves from our sugya that a seller is expected to be generous only insofar as it does not infringe on any rights he reserves for himself. According to our sugya, if a person sells a field, but keeps the trees therein for himself, the purchaser must understand that the seller still owns the land upon which the trees stands in order to protect his continued right to grow the trees. By the same reasoning, the former owner of the said house, argues the Maharsham, certainly meant to ensure his rights on the balcony for his heirs to enable their best use thereof, including the display of bulky items.
What Is Sold With A House?
Commenting on our sugya, Rishonim indicate that anything not affixed to a dwelling is excluded from its sale, unless otherwise specified, and anything affixed thereto and needed for normative habitation, e.g., doors and windows, are included. In the kitchen, while some might have differing expectations regarding stoves, dishwashers, and refrigerators, everyone expects to find a kitchen sink.
Furnishings?
The following case was referred to Rabbi Moshe Feinstein, zt”l (Iggros Moshe, Choshen Mishpat 1:53): Approaching retirement, Reuven sold his shop and, in the purchaser’s presence, began to clear out his personal effects. The new owner was astounded when Reuven ordered the movers to dismantle a partition forming a wall in the middle of the shop and store it in his home. The partition, he claimed, served no current purpose and was installed long ago only to reduce the shop’s area so as to avoid paying a high municipal tax. The new owner retorted that the partition was just like any other wall and surely included in the sale. Rabbi Feinstein ruled in favor of Reuven, the seller, as the Shulchan Aruch (Choshen Mishpat 214:11) rules, in accordance with our sugya, that decorative window frames are excluded from the sale of a home, shop, etc., because they are not among the items that give a house its name. The partition, having been installed for extraneous reasons, was superfluous to the shop and was therefore not included in the sale.
Keys, Now And Then
The Mishnah (65a) states that keys are excluded from the sale of property. Keys in those days were not attached to a house and came in just a few models, fitting the simpler locks of the era. Slightly altered, the same key could fit another locks and therefore could not be defined as unique to any house. Modern keys, however, are cut to fit a specific lock and therefore are included in a sale. Rabbi Yaakov Bloy (Pischei Choshen 7:14, s.k. 64) adds that as purchasers of property now take care to prevent strangers from having keys, the former owner must relinquish all keys to the new resident.
Lighting Fixtures
Lighting fixtures sold with a home, office, or the like must be in working condition, being essential for habitation. However, a seller may remove chandeliers present at the sale and replace them with cheaper fixtures, as they are merely decorative. Wall safes may likewise be removed, being non-essential.
Air Conditioners
Air conditioners present a serious problem. About 40 years ago, all halachic authorities would have been in agreement that window or wall air-conditioners were luxuries not necessarily assumed to be included in the sale of a home. On the other hand, not that many years from now, all will apparently define them as essential items for normal habitation. Today, at least in Israel, one must ask a rav for a decision according to local conditions. Central air conditioning plainly must be left with a house.
Inventorying The Property
Rav Bloy (ibid.) notes that sellers and buyers should act wisely and list in writing all articles included in a sale. The Rambam asserts that local custom determines practice (Hilchos Mechirah 26); halachic rulings are meant to solve problems only where there is no obvious custom. Even when there is a clear custom, though, there will always be items whose status is open to debate.