Bava Metzia 63b (סג:) — the Talmud in English

What difference is there for me whether it is them -

the produce,

or what difference is there for me whether it is their monetary value -

the money with which one can return an amount corresponding to the value of the produce, even though he returns more than he received.

What difference is there for me whether it is their monetary value -

the produce,

or what difference is there for me whether it is them -

the money,

we say this as well:

That is, Rava is introducing here the law of fixing a price. Just as, if their monetary value [which is the produce ^20] were in the seller’s possession, it would certainly be possible to fix the price for them, so too, if the produce is not in the seller’s possession, but the seller has money that he received from the buyer—“them”—it is permitted to fix the price with this money, since the seller can go and purchase the produce with it, and this is considered as though he has it Therefore,

one may fix the price according to the market price even if he does not have [the produce].

He raised an objection to him,

asked

Rav Pappa and Rav Huna, son of Rav Yehoshua, of Rava,

from the beraita of Rabbi Oshaya:

In all cases, if he has [the produce], it is permitted; if he does not have it, it is prohibited.

It is explained in this beraita that in order for fixing a price to be permitted, the seller must have the merchandise. If so, how does Rava come and innovate that it is permitted to fix the price by giving money even if he does not have the produce?

And we answer:

Rava said to them: There,

the beraita of Rabbi Oshaya,

is a loan,

and therefore they permitted it only when he has [the produce]. But when he does not have it, since the fixing of the price is effected through a debt and not through the actual giving of money, they did not permit it.

But

here,

in the case that I introduced,

it is a sale,

that is, a purchase. In a purchase, we say that whenever he gives money, even if there is no produce, it is permitted.

Rabba and Rav Yosef, both of them,

said:

For what reason did the Rabbis say that one may fix the price according to the market price even if he does not have [the produce]?

What is the reason for permitting the fixing of a price once the market price has been established?

It is because

he says to him,

the buyer says to the seller:

Take your “favor,”

you may take the “favor” you did for me,

and cast it among the thorns,

put it aside, because

what benefit have you provided me?!

You have provided me with no benefit by purchasing merchandise for me cheaply when today it is expensive, because

if I had had the money in my possession, I would have purchased it at Hini and Shili.

That is, if the money had been in my possession, I would have purchased with it the merchandise that I asked you to supply me. For you, too, do not have the merchandise and would have had to purchase it. If so, I could have purchased it myself as well. You have provided me with no gain.

Abaye said to Rav Yosef:

According to the rationale you gave for permitting the fixing of a price,

then from now on, it should be permitted

it should be permitted

to borrow a se’a for a se’a,

even though we are always concerned that the se’a may increase in value and he will return more than he borrowed; according to your words, it should be permitted.

Because he can say to him

the lender can say to the borrower:

Take your “favor” and cast it among the thorns;

you have not added anything for me by repaying the loan,

because he says to him: “The wheat would have sprouted in my granary.”

If I had not lent it to you and the wheat had remained in my house, would it have spoiled? It would have remained exactly as it was and would have increased in value even without the loan.

And we answer:

He said to him: There,

in the case of a se’a for a se’a,

it is a loan,

and they did not permit it for the stated rationale. But

here,

in the case of fixing a price, which

is a sale,

a purchase, they permitted it for the stated rationale.

And we raise an objection: How can you say that fixing a price is permitted because the buyer says that the seller provided him with no benefit?

But he must

the buyer, if he were to purchase on his own,

give

pay

money to a broker,

the intermediary who would arrange his purchase of the wheat. For this was their practice: one who wished to purchase wheat would go to a broker. The broker would find him a seller of wheat, and the buyer would have to pay him a brokerage fee. When fixing a price, the buyer gives his money to the seller and saves the brokerage fee. If so, he does gain from advancing the money.

And we answer:

He gives him,

that is, in fact, when the buyer advances the money to the seller, he gives the seller, in addition to the price of the produce, the brokerage fee as well.

Rav Ashi said

in answer to the objection, “He must give money to a broker”:

A person’s money itself

performs his brokerage for him.

There is no brokerage fee at all, since the owners of the wheat themselves seek out buyers and transport the merchandise to their homes.

The Gemara before us deals with a person who fixed a price with another in money for produce, while the established market price had not yet emerged, but only a weak, preliminary price existed. In what manner must they rely on one another so that the transaction between them is binding?

Rabba and Rav Yosef, both of them, said: With regard to one who gives money at a sharp market price,

the buyer fixed a price with the seller close to the harvest, while the clear market price had not yet emerged. Nevertheless, they are permitted to fix a price for the produce, since the seller has a threshing floor, and it is permitted to fix a price when he has the produce, even if no market price has emerged at all.

However, their mutual reliance is conditional:

he must appear,

the buyer must appear

at the threshing floor,

at the seller’s threshing floor, when he is threshing and winnowing the grain.

And we raise an objection:

For what

does the buyer need to come to the seller’s threshing floor?

If it is in order to acquire

the produce from the seller, so that he will no longer be able to retract from the transaction,

he has not acquired it!

For he gave him money, and money does not effect acquisition until he pulls the merchandise that he came to purchase.

If it is in order to impose upon

the seller

“mi shepara”

if he retracts from the transaction, and therefore he must appear at the threshing floor, there is no need for him to come to the threshing floor for this purpose,

for even if he does not appear

at the seller’s threshing floor,

the seller accepts upon himself

the seller accepts upon himself

“mi shepara.”

For every giving of money, although it does not effect acquisition, is effective with regard to the curse of mi shepara for one who retracts.

And we answer:

It is indeed in order to impose upon him “mi shepara.”

The giving of money alone is not sufficient; rather, he must come to the threshing floor, because the practice is that

one who gives money at a sharp market price gives it to two or three [sellers].

Since the buyer does not know which of the sellers will in fact have grain, it is the buyer’s practice, when dealing at a sharp market price, to fix a price with several owners of threshing floors. In order to determine which of the three owners of threshing floors with whom he fixed a price he can rely upon to supply him with merchandise,

if he appears to him

the buyer appears at the threshing floor,

his mind is settled

the seller’s mind is settled, and he knows that the buyer expects him to supply the grain. Therefore, the seller is subject to mi shepara if he retracts.

But if not

the buyer appeared at the threshing floor,

he said to him

the seller, when retracting without accepting mi shepara upon himself:

“I thought that you had found better produce than mine and had taken it.”

Since you did not appear at my threshing floor, I assumed that you had found better produce with someone else, with whom you had also fixed a price. Therefore, I retracted.

Rav Ashi said: Now that you have said

that the buyer must come to the threshing floor

because

the seller will be

able to settle his mind,

since the buyer intends to purchase,

even if the buyer finds him

the seller

in the marketplace and says to him

the buyer says: See that I rely upon you,

his mind is settled

the seller’s mind is settled, and mi shepara already applies if he retracts, even though the buyer did not visit his threshing floor.

Rav Naḥman said: The principle of interest

is as follows:

Any

payment for waiting,

where the borrower gives the lender more than he borrowed as payment for the time the lender waited for the debt to become due; or where the buyer advances money before receiving the merchandise, and in return for keeping the money with the seller until he has merchandise the seller lowers the price for him,

is prohibited

because of interest.

However, there are circumstances in which it is permitted to lower the price if the seller has the merchandise in his possession, although it is not actually before him for sale. The reason for the permission is that we view the merchandise purchased through fixing a price as though it were acquired by the buyer immediately, at the lower price. This does not involve an advance of money, since at the time the grain was sold, the seller received the money from the buyer. As follows:

And Rav Naḥman said: With regard to one who gives money for wax,

the buyer advanced money to the seller of wax.

And they were then selling

wax cakes

four for four

for a zuz.

And he said to him,

the seller said to him:

“I will give you”

at a later time a certain quantity of wax cakes

five for five

for each zuz. The additional honey cake that the seller gives the buyer beyond the regular price is because the buyer advances the money to him at the time they made their agreement.

Now, if

they are in his possession,

the cakes are in the seller’s possession, even if they are not in the city or the key to the place where the honey is kept has been lost, and because the seller was short of money until he could get there or find the key, he added the additional cake for the buyer,

it is permitted,

it is permitted to do this, since we regard the cakes that the seller has in the other city or in the locked house as sold immediately to the buyer. There is no advance of money here, but rather payment at the time of the sale; and giving five for the price of four is a reduction in the sale price. Therefore, it is permitted.

But if

they are not in his possession,

the seller has no honey cakes at all, neither here nor elsewhere,

it is prohibited.

Since there is no sale taking place now, but only an undertaking to supply the merchandise later, this is an advance of money. In return for the advance, he lowers the price of the cakes and gives him five for a zuz.