Must A Typical Sale Be Generous?
‘A Seller Sells Generously’
(Bava Basra 71a)
Our Mishna 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 though not specified in the sale, as “a seller sells generously.” Halacha was ruled accordingly (Rambam, Hilchos Mechira 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, which was used and would continue to be used 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 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, such as a case he judged long after the sale of a house (Responsa Maharsham, 3:316). Menashe 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 proved from our sugya, though, that a seller is expected to be generous only insofar as the transaction does not infringe 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 stand in order to protect his continued right to grow the trees. By the same reasoning, the former owner of the said house 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, the 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 or windows, are included. In the kitchen, while some might have differing expectations regarding stoves, refrigerators, and dishwashers, everyone expects to find a kitchen sink. Yet as we will see, people, both buyer and seller, have varying expectations in this matter.
Furnishings?
The following is a relevant case that 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 bring it for storage in his home. The partition, he claimed, served no current purpose but was installed long ago only to reduce the shop’s area and thus avoid paying a high municipal tax. The new owner retorted that the partition was just like any other wall, surely included in the sale. Rabbi Feinstein justified 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 one of the items that give a house its name. Likewise, the partition, which had been installed for extraneous reasons, was superfluous for the shop and excluded from the sale.
Keys, Now and Then
Keys are virtually the only items now defined differently than in Talmudic times. The Mishna (65a) states that keys were excluded from the sale of property. They were not attached to a house and came in just a few models, fitting the simpler locks of the era. Slightly altered, a key could fit other locks and therefore could not be defined as unique to any house. Modern keys are cut to fit a specific lock and must be included in the 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, former owners must relinquish all keys to a 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 with homes. 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, we are in a time period that requires asking a rav for a decision according to local conditions. Central air conditioning plainly must be left with the house.
Inventorying The Property
In conclusion, notes Rav Bloy (ibid.), sellers and buyers should act wisely and list in writing the articles included in the sale. The Rambam asserts that local custom determines practice (Hilchos Mechira 26) and halachic rulings are meant to solve problems where there is no obvious custom. Nevertheless, there may always be items that will be open to debate.
