It was at the well that Abraham’s servant met Rivka, Yaakov met Rachel and Moshe met Tzippora. It is hard for us--who, when thirsty, simply turn on a nearby tap--to appreciate the necessity of having a well nearby. Its vital importance, coupled with the fact that the well was located outside of the home, meant that it was not just an appendage to a home but had its own independent identity. “One who sells a home does not sell…the cistern” (Bava Batra 64a).
The well was to be priced and sold separately from the home. And if the well was not specifically stipulated as being included in the sale of a home, the seller of the home would retain ownership of the well. Yet accessing that well is a different matter, and is a subject of Mishnaic dispute. “And [the seller] must pay for a path to the well; these are the words of Rabbi Akiva; the Sages say he does not need to purchase a path.”
The Talmud initially explains that this debate has little to do with wells and water, but much to do with sellers and buyers in general. Rabbi Akiva posits that mocher, b’ayin yafeh hu mocher, a seller sells with a good eye (Bava Batra 64b). Our Sages note that one of the differences between “the students of Avraham Avinu and Bilaam the Evil One” (Pirkei Avot 5:19) is that the former have a “good eye”, whereas the latter have an “evil eye”. Our commentaries understood “a good eye” to refer to one who “is happy with what he has…and is not envious of others” (see Rav Ovadiah MeBartenura, Avot 2:5). When Rabbi Yochanan ben Zackai asked his students “what is the ideal path that a person should have?” (Avot 2:5) the first response, the one given by his top student Rabbi Eliezer the Great, was “a good eye”.
Rabbi Akiva, following in the footsteps of his teacher Rabbi Eliezer, ruled that having a good eye is not only a moral ideal, but a legal principle. One can assume that when one sells an object, one does so with the most generous of spirit. Thus, even as one who sells a home may not sell the nearby well, he does sell the surrounding property and the seller must purchase a right-of-way to his well.
This is a corollary to Rabbi Akiva’s teaching that “loving our fellow as ourselves” is the fundamental principle of the Torah. Surely one who truly internalizes this most important – and difficult – of mitzvoth would sell with a generous spirit and with the needs of the purchaser in mind.
While a most noble and beautiful sentiment, the Sages disagree – at least from a legal perspective. They were well aware that most people in the marketplace have their own interest at heart and not the interest of those with whom they do business: “with an evil eye one sells[1].” Thus, unless explicitly included in the contract of sale, we must assume that a seller need not purchase a right of way to his well – he never sold it in the first place.
Yet the Gemara raises the possibility that the argument regarding access to the well is case-specific and has little to do with the generosity of spirit of sellers. Even if Rabbi Akiva were to hold that in general, “a seller sells with an evil eye”, he would agree that in this case, the seller sells everything, including the path to the well. This is because “a person does not want to spend money and yet have others trample on his property” (Bava Batra 64b) as they make their way to the well. If the seller plans to continue using the well, he must purchase a right-of-way. Here, too, Rabbi Akiva is focused on the needs of the purchaser; yet fascinatingly, the Gemara works on the assumption that even one who “sells with an evil eye” would not do so in this case, fully appreciating the new owner’s right to privacy.
On the other hand, the Gemara posits the Sages may agree that in general, a “seller sells with a good eye”. However, in this particular case, the purchaser retains the right-of-way to access his well. This is because “a person does not want to take money and have to fly in the air” to get to his well[2]. Why would anyone not sell a well, but sell access to it? Here, too, the Sages focus on the seller’s needs, yet fascinatingly, the Gemara works on the assumption that even one who “sells with a good eye” would not do so in this case, fully appreciating the seller’s need to reach his well.
Such a scenario seems to be a case of two compelling but contradictory claims. Clearly, no one wants people walking through their property on a regular basis; yet equally clearly, one does not keep an asset, but sell the right to access that asset.Such disputes are the inevitable result of leaving too many details of a sale open to interpretation[3].
Yet instead of having to decide on a case-by-case basis whose claims are to be given greater weight, the Gemara concludes that this dispute is, in fact, of a more general nature, on whether one sells with a good or evil eye.
While many a seller may prefer to sell with “an evil eye”, Jewish law rules that whether he truly wants to or not, “a seller sells with a good eye”. After all, seller and purchaser alike are the children of Avraham Avinu.
[1] This is a rather harsh assessment of those who have done no legal wrong. Our Sages rejected the notion of caveat emptor and put the onus of responsibility for pointing out defects in a product upon the seller. Expecting the seller to sell graciously is an extension of the obligations of the seller – even as they understood that such was generally not the case.
[2] Presumably, Rabbi Akiva would argue that the buyer can assume that the seller has other sources of water and has no need to “fly in the air.”
[3] While diplomats like vague agreements – allowing them to claim success while letting others deal with the inevitable fallout that is sure to come – Jewish law does not, understanding that absent clarity, disputes are inevitable.
