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Week 101 - Sunday - 28 October 2001

BAVA METZIA: CHAPTER 5: MISHNAH 7

No agreement may be made for produce until the market price is determined. Once the market price is determined, agreements may be made; although this one does not have, this one does. If he were the first to reap, he may stipulate with him for the stack, or for the harvesting-basket of grapes, or for the vat of olives, or for the potter's lumps or for the lime sunk in the kiln, and he may stipulate with him for manure at any time during the year. Rabbi Yose says, No stipulation for manure may be made unless he had manure on the dung-heap. But the Sages permit. An agreement may be made with him for the rate at the height. Rabbi Yehudah says, Even though he did not stipulate with him for the rate of the height, he may say, "Give me at such, or give me my money."

Kehati

This mishnah discusses the case of a purchaser seeking to give money to a seller, in order that the latter will supply him with merchandise at a later date. If the seller does not have the merchandise in hand, and its price in the marketplace has not yet been determined, a price may not be set for the merchandise in this transaction, since its price may rise later, with the result that he would be selling him the merchandise at the lower price in return for prepayment. If, however, the price of the merchandise has already been determined in the marketplace, even though the seller still does not have the merchandise, or if the seller has the merchandise in hand, but its price has not yet been clarified in the marketplace, they may agree on a price for the merchandise which the seller will give him.

No agreement may be made for produce - it is forbidden to make an agreement with the seller to give him money immediately on condition that he will provide in return a certain number of korim of produce when it will ripen - until the market price - of the produce - is determined - lest the produce be more expensive when its price is determined. As a result, the purchaser would profit for having paid early, for the seller would give him the produce according to the predetermined, lower, price; this would constitute quasi-interest.

Once the market price is determined - in the market - agreements may be made - it is permitted to give money to the seller on condition that in return he supply produce after a certain amount of time at this price, although this one - this seller - does not have - produce, this one -another merchant - does - have produce at that price, and he could purchase the produce from him. I.e., if the price of wheat were fixed at a sela for four se'ahs of wheat, and the purchaser agrees with the seller on a transaction of one hundred se'ahs, and gives him twenty-five selas. If the seller were to give him the wheat at a later date, when the price of wheat was one sela for each se'ah, this is not considered as interest at all. Even though the seller had no wheat at all when they agreed on the price, he could have purchased the one hundred se'ahs of wheat for this price in another place.

If he - the seller - were the first to reap - and the crop was already in his possession, while the price had not yet been determined, he - the purchaser - may stipulate with him - for any price he wishes, for - the produce in - the stack - even though its work is not yet completed, since he acquires the stack as of now. If the produce becomes more expensive, it does so when in the domain of the purchaser, even though the seller has not drawn the produce. Since the prohibition against concluding an arrangement based on a predetermined price even when the seller has no produce is only Rabbinic, because of quasi-interest, the Sages did not, therefore, forbid such an arrangement when the seller does have the produce in hand (Rashi, Bartenura); or for the harvesting-basket of grapes - the purchaser is also permitted to make such an agreement, for any price he wishes, for the wine, from the time that the seller picked the grapes and put them in the harvesting-basket, which is a large container in which the grapes are heaped before they tread on the press in order to heat them; or for the vat of olives - it is also permitted to make such an agreement for the oil, after the seller picked the olives and put them in the vat (a basket in which the olives are piled until they ripen and become soft); or for the potter's lumps - it is permitted to make an agreement with the potter for his pottery from the time that he prepared the lumps of clay from which he makes the pottery; or - to make an agreement - for the lime sunk in the kiln - i.e., from the time that he put the lime-stones down in the kiln to fire them. Even though the work has not yet been completed in each of these cases, it is nevertheless permitted to make such an agreement concerning them, even though their price has not yet been determined.

And he may stipulate with him for manure - for his field - at any time during the year - even during the rainy season, although he has no manure at all, since it is always to be found.

Rabbi Yose says, No stipulation for manure may be made unless he had manure on the dung-heap - Rabbi Yose disagrees with the first opinion in the mishnah. He holds that the buyer cannot make an agreement with the seller concerning the manure, whether during the dry season or the rainy season, until he actually has manure on the dung-heap. But the Sages permit - making an agreement concerning manure, even though he does not have any, but only in the dry season; because although this seller does not have any, others do have it. It is to be found, since it rotted and became smooth during the previous rainy season. During the rainy season itself, however, he may not make an agreement with him unless he actually has manure.

An agreement may be made with him for the rate at the height - i.e., at the cheapest price, when a large amount of produce is sold for a small amount of money. This sentence refers back to the beginning of the mishnah, "Once the market price is determined"; it teaches that once the price of the produce has been determined, it is permissible to make an agreement with him that if the rate goes down from its present level, he will give him the produce at the cheaper price (Rashi, Rambam, Bartenura).

Rabbi Yehudah says, Even though he did not stipulate with him for the rate of the height - i.e., that he would give him the produce for the cheaper price – he - the purchaser - may say - to the seller, when the price goes down - "Give me at such - at the cheaper price - or give me my money" - and I will purchase produce at the cheap price with it; since he has not drawn the produce, he can withdraw from the transaction. He is not morally responsible (under the "The One who punished ..." category [above 4:2]) to honor his commitment, since he only gave his money on condition that he receive the produce at a later date, and the price changed during the meantime; ordinarily, a person's intention is for the cheaper price. The law is not in accordance with the opinion of Rabbi Yehudah.

BAVA METZIA: CHAPTER 5: MISHNAH 8

A man may loan to his sharecroppers wheat for wheat - but not for food. For Rabban Gamliel used to loan wheat for seed for wheat; whether it was expensive, and became cheaper, or whether it was cheap and became more expensive, he would take from them according to the cheap price, not because this was the law, but because he desired to be strict with himself.

Kehati

The Rabbis forbade the loaning of "a se’ah for a se’ah" (as we shall learn below, in mishnah 9), i.e., the loaning of a se’ah of produce on condition that a se’ah of produce will later be returned. This was forbidden lest the price of the produce increase, and the borrower would therefore be returning more than what he had borrowed. This is only so when the price of produce was not determined and commonly known, and when the borrower did not have in his house the same kind of produce which he wanted to borrow. In such a case, it is forbidden to borrow a se’ah for a se’ah; the lender must make an agreement with the borrower that the latter will pay him a certain amount of money for a se’ah of produce, and he must repay this money. If they did not make such a monetary arrangement, and the price of the produce went down, then he gives him a se’ah of produce, just as he borrowed; if the price increased, then he gives him the monetary value of the produce at the time of the loan. If, however, the price was fixed, and known to both of them, then it is permitted to loan a se’ah for a se’ah; even if the produce will become more expensive, there is no fear that this is to be considered quasi-interest, since he could have purchased the produce at the previous price and returned it to him. Similarly, even if the price were not fixed, but the borrower had some of the same kind of produce in his house, even a small amount, he would be permitted to borrow several se'ahs against it, in order to repay a se’ah for a se’ah. This is permitted since it is regarded as if he borrowed a se’ah against the se’ah which he had, thus giving him two se’ahs now. After this, it is if he borrows two se’ahs against the two se’ahs which he has, and soon. The rabbis were lenient in this matter, since there is no Torah prohibition (Maggid Mishneh). According to Rambam, however, even in an instance where the price is fixed and known to all, or in an instance where he possesses the same kind of produce, he is forbidden to borrow a se’ah for a se’ah for a fixed period of time, he must borrow it without stipulation, and pay it whenever he pleases. If he did borrow for a fixed period of time: if the price went down, then he repays produce at the fixed time; if the price went up, then he must repay the loan with money (Hil. Malveh u-Loveh 10:2; see there Hasagat Ravad). This mishnah deals with sharecroppers, who receive fields to work and tend, and receive one half or one third of the crop as wages for their labor. It discusses the question of whether they are permitted to borrow wheat for wheat from the owner of the field.

A man may loan to his sharecroppers wheat for wheat - even though it is forbidden to loan a se’ah for a se’ah, as we explained above, a person is permitted to loan his sharecroppers a se’ah of wheat for a se’ah of wheat (i.e., he gives them a se’ah of wheat on condition that they return to him the same measure at a later date) - for seed - for the purpose of sowing his field with this wheat - but not for food - for the purpose of eating, for the reason we have explained above (lest wheat increase in price, with the result being that he repays more than he borrowed). The Gemara explains that it is forbidden to lend wheat to his sharecroppers for wheat, even for seed. Only, in a place where it was the practice for the sharecropper to provide the seed, if the sharecropper did not have the seed necessary for sowing the field, then the owner of the field could dispossess him, as long as he had not provided the seed, whether or not he had already gone to the field to work. The owner of the field is therefore permitted to lend him a se’ah of wheat for a se’ah of wheat, with the sharecropper then going to the field to work, with him then taking one half or one third less a se’ah. This is not considered to be a loan and there is no suspicion of this being interest, but rather special conditions for sharecropping. In a place where it is the practice for the owner of the field to provide the seed, however, it is permitted to lend the sharecropper wheat for wheat, only if the sharecropper has not yet gone to the field to work, since the owner of the field is still able to dispossess him. It follows from this that when he goes to the field to work; he does this with the knowledge that he will take one se’ah less, as we have explained above. After he has already gone to the field to work, since he went in accordance with the local practice, i.e., that he would take his wages like the other sharecroppers, the owner is no longer able to dispossess him or to make special conditions with him. His legal status is therefore like that of any other person, and it is forbidden to lend him wheat for wheat, even for the purpose of sowing.

The mishnah teaches this law, since - Rabban Gamliel used to loan wheat for seed for wheat, whether it - the wheat - was expensive - at the time that he lent it, and - later - became cheaper, or whether it was cheap - at the time of the loan - and - later - became more expensive, he - would always - take from them according to the cheap price - If wheat became cheaper, he would take only the measure of wheat which he lent to them; if wheat became expensive (e.g., the price of wheat at the time the loan was granted was one sela per se’ah, and its price later rose to two selas per se’ah), he would only take one half of each se’ah, which was now sold for the original sela); Rabban Gamliel acted in this manner - not because this was the law, but because he desired to be strict with himself - i.e., the mishnah teaches that Rabban Gamliel was strict with himself, but the actual law is as we have explained above.

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