Bava Metzia 63b — the Talmud in English

What do I need them for -

the produce,

what do I need their value for -

the money with which it is possible to return money corresponding to the value of the produce, even though he returns more than he received.

What do I need their value for -

the produce,

and what do I need them for -

the money,

we say this as well,

that is, Rava comes here to innovate the law of pesika. Just as, if their value [which is the produce] were in the seller’s possession, it would certainly be possible to make a pesika concerning them, so too, if the produce is not with the seller, but there is money with the seller that he received from the buyer—“them”—it is permitted to make a pesika with this money, since the seller can go and buy the produce with this money, and it is considered that he has it . And therefore,

and they may make a pesika according to the market price, even though he does not have it.

He raised an objection to him,

asked

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

from the beraita of Rabbi Oshaya:

All of them: if he has it, it is permitted; if he does not have it, it is forbidden.

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

And we answer:

Rava said to them: There,

the beraita of Rabbi Oshaya,

it is a loan,

and therefore they permitted it specifically when he has it; but when he does not have it, since the pesika is effected through a debt and not through an actual giving of money, they did not permit it.

But

here,

in the matter that I innovated,

it is a sale,

this is a sale. And regarding a sale we say: whenever he gives money, even if there is no produce, it is permitted.

Rabba and Rav Yosef, both of them said,

they both said:

For what reason did the Sages say that they may make a pesika according to the market price, even though he does not have it,

what is the reason for the permission of pesika when the market price has been established?

Because

he says to him

the buyer says to the seller:

Take your favor,

you should take the “favor” that you did for me,

and throw it among the thorns,

leave it among the thorns, for

what benefit have you brought me!?

You have brought me no benefit by buying merchandise for me cheaply when today it is expensive, because

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

That is, if the money had been in my possession, I myself would have bought with it the merchandise that I asked you to supply to me. For you also do not have the merchandise, and you would have had to buy it. If so, I too could have bought it myself. And you brought me no profit .

Abaye said to Rav Yosef:

According to the reason you gave for permitting pesika,

from now on, it should be permitted

it should be

to borrow a se’a for a se’a,

even though we always fear that perhaps the se’a will become more expensive 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 throw it among the thorns,

you have added nothing to me by returning the loan,

because he says to him: “My wheat was sprouting in Aklabai.”

For if I had not lent it to you, and my wheat had remained in my house, would it have spoiled at all? It would have remained the same, and it would have become more expensive even without the loan.

And we answer:

He said to him: There,

in a se’a for a se’a,

it is a loan,

and they did not permit it for the aforementioned reason. But

here,

with pesika, which

is a sale,

a sale—in this case they permitted it for the aforementioned reason.

And we ask: How can you say that with pesika it is permitted because the buyer says that the seller brought him no profit?

But he needs

the buyer, who buys by himself,

to give

to pay

money to a broker,

to the intermediary who arranged the purchase of the wheat for him. For this was their practice: one who wished to buy wheat went to a broker. The broker would find him a seller of wheat, and he had to pay him the brokerage fee. But with pesika, when he gives his money to the seller, he saves the brokerage fee. If so, he does have a profit from advancing the money.

And we answer:

He said to him: For he gives him,

for in truth, even when advancing the money, the buyer gives the seller, in addition to the price of the produce, also the brokerage fee.

Rav Ashi said

to resolve the question, “He needs to give money to the broker”:

A person’s money, it

performs his brokerage for him.

There are no brokerage fees at all, since the owners of the wheat themselves seek out buyers and bring the merchandise to their homes .

The Gemara before us deals with a person who made a pesika with his fellow in money for produce, while the established market price had not yet emerged, but only a weak price, which precedes it: in what manner must they rely upon one another that the transaction between them is binding?

Rabba and Rav Yosef, both of them said: One who gives money at a sharp price,

where the buyer made a pesika with the seller close to the harvest, while the clear market price had not yet emerged, nevertheless they are permitted to make a pesika concerning the produce, since the seller has a threshing floor, and it is permitted to make a pesika when he has it, even though no market price has been established at all .

However, their reliance upon one another is on condition that

he must show himself,

the buyer must appear

at the threshing floor,

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

And we ask:

For what purpose

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

If it is to acquire

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

he has not acquired!

For he gave him money, and money does not acquire until he pulls the merchandise that he came to buy.

If it is to accept upon himself

the seller

“mi shepara”

if he retracts from the sale, and therefore he needs to 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 show himself

at the seller’s threshing floor,

he accepts upon himself

the seller

“mi shepara.”

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

And we answer:

It is always to accept upon himself “mi shepara.”

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

And one who gives money at a sharp price gives it to two or three,

since the buyer does not know which of the sellers will in fact have grain, the practice of a buyer at a sharp price is to make a pesika with several owners of threshing floors. And in order to know which one of the three owners of threshing floors with whom he made a pesika he can rely upon to give him merchandise,

if he shows himself to him

the buyer shows himself at the threshing floor,

his mind is relied upon

the seller relies upon him and knows that the buyer expects him to supply him with the grain; therefore he 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 said: You found better produce than mine, and took it.

Since you did not appear at my threshing floor, I assumed that you found better produce with another person, with whom you had also made a pesika. Therefore I retracted.

Rav Ashi said: Now that you have said

that the buyer needs to come to the threshing floor

because

the seller will be

relying upon his mind,

that the buyer intends to purchase,

even if he finds him

the buyer finds the seller

in the marketplace, and says to him

the buyer says to him, “See that I rely upon you,”

his mind is relied upon

the seller relies upon him, and there is already mi shepara if he retracts, even though the buyer did not visit his threshing floor.

Rav Nahman said: The general principle of interest

is as follows:

Any

payment for waiting,

that the borrower gives the lender more than he borrowed as payment for the fact that he waited for him during the period of the debt; or that the buyer advances money before receiving the merchandise, and because he leaves the money with the seller until he has merchandise, the seller lowers the price of the sale for him,

is forbidden

because of interest.

However, there are situations in which it is permitted to lower the price if the seller has the merchandise with him, except that it is not actually before him to sell. The reason for the permission is that we view the merchandise acquired through pesika as though it were acquired by the buyer from now, at a cheap price. There is no interest here, for there is no advance of money here; rather, at the time of the sale of the grain, the seller received money from the buyer. As follows:

And Rav Nahman said: One who gives money for wax,

the buyer advanced money to give to the seller of the wax.

And they were going,

the cakes of wax were then being sold

four four

for a zuz.

And he said to him

the seller:

I will give you

at a certain later time cakes of wax,

five five

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

Now, if

they are with him,

the cakes are found with the seller, even if they are not in the city or the key to the place of the honey was lost, and because the seller was pressed for money until he reached that place or found the key, he added the additional cake to the buyer,

it is permitted,

it is permitted to do so, since we view 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 of the sale price, and therefore it is permitted.

But if

they are not with him,

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

it is forbidden.

Since there is no sale here now, but only an undertaking to supply them later, there is an advance of money here; and as payment for the advance, he lowers the price of the cakes and gives him five for a zuz .

And we raise an objection:

It is obvious

that in a place where the seller does not have the item being sold, it is prohibited to advance the money to him and to lower the price of the sale. And we answer:

It is necessary

to teach us this, rather, in a place

where he has credit in the city,

for this seller also set a price with others in his city, and is destined to receive wax from them.

Where he has it, it is explained that it is permitted, and even to lower the price. The Tur (section 173) brought a dispute whether it is permitted even when he explicitly says to him: “If it is from now, [I will give it] for less, and if it is later, I will give you more.” According to one opinion it is permitted, but according to Rabbi Isaiah it should be prohibited. And he wrote that this is more reasonable. It appears from the words of the Beit Yosef that their dispute depends on what the Tosafot wrote regarding the case where he does not have it. If the price is clear, that it is four, then it is as though he explicitly said: “If it is from now, [I will give it] for four, and if it is later, I will give you five,” and this is prohibited. But concerning this the Gemara said that when he has it, it is permitted, even though the price is clearly four. If so, it implies that even when he explicitly says literally, “If it is from now, for four, and later, for five,” when he has it, it will be permitted; and this is the reasoning of the first opinion. But Rabbi Isaiah held that when the price is four, it is only as though he explicitly stated it with regard to prohibiting it when he does not have it, whereas when he has it, it is permitted. But an actual explicit statement is worse, and in that case what he has will not help him. That is: it is as though he explicitly stated it, but not an actual explicit statement. However, the Gra cited as the source of the dispute the Sefer ha-Terumot, which raised the Tosafot’s difficulty from tarsha, and answered that here it concerns a case where he explicitly said, “If it is from now, for such and such” (and not merely that the price is such and such). Therefore, the permission of tarsha, where he does not fix a price, does not apply. Concerning this, the Gemara wrote that when he has it, it is permitted. It follows that even when he explicitly states it, it should be permitted when he has it, and this accords with the reasoning of the first opinion. Rabbi Isaiah, however, learned it according to the answer of the Tosafot: that it concerns a case where the price is four, which is as though he explicitly stated it, but an actual explicit statement will not be helped by the permission of having it. It would appear that there is a major practical difference: according to the Gra, since the method of the first opinion is based on the answer of the Sefer ha-Terumot, the Gemara required that he have it only when he explicitly states it, but when the price is four, even when he does not have it, it is permitted. This differs from the Tosafot, according to whom, when the price is four, one must resort to his having it in order to permit it. But according to the Beit Yosef, the first opinion innovated only that having it helps even when he explicitly states it. But if the price is four, it did not occur to them to permit it when he does not have it, as the Tosafot wrote: when four is going, one must resort to his having it. But if they agreed that at that time he would give him four, just as the price is now, there is no prohibition in this. And although it is possible that when he supplies him with the four cakes they will be worth more than a zuz, and it will appear that he gives him cakes worth more than a zuz in return for his having advanced the money to him, it is explained in the Gemara that where the market price has been established and the price of cakes in the market has already been fixed, it is permitted, since it is possible to obtain cakes, and this is as though he sold them to him now and they became more expensive for the buyer. One might have said: Since he has credit in the city,

this is considered as though the seller already has the wax that he is destined to receive, and it is permitted to set a price when he has it, whose law is

as

a lender lending a se'a for a se'a, which he is permitted to borrow when the loan is

“until my son comes” or “until I find the key,” so it is,

for there it was permitted to lend a se'a for a se'a in a place where he has it, since by virtue of what is available to him in his locked house, or in another place, he is considered to have it. The Tosafot raised a difficulty: below, the halakha was decided in accordance with Hillel, who prohibits lending a se'a for a se'a even until my son comes. Furthermore, even according to the Rabbis, who permitted it there, specifically a se'a for a se'a is permitted, but not a se'a for two se'ot, where he gives him more even without the price rising; and here it indeed resembles two se'ot, where he gives him more wax. They answered that buying and selling is more lenient than a loan. Therefore, the Rabbis and even Hillel permit it when he gives him more in a place where he has it, but it is lacking only the arrival of his son or the key. They further raised a difficulty: they could have brought in the Gemara a case more similar to the Mishna below (72b), concerning one who sets a price with him for the grain heap. That is, it is permitted to set a price even before the market price has been established, since the seller has it, even though a little work is still lacking. They answered that there it was permitted to set a price only at the price of the time when he sets the price, but lowering the price is prohibited. Since it still requires repair, it appears that he lowers the price because of the advance of the money. But here, since the wax that he has is ready for sale and lacks no repair at all, it is permitted even to lower the price, since with an item that is ready, even though the arrival of his son is lacking, it appears more like selling it immediately. But Rashi below (72b, s.v. posek) disagrees with the words of the Tosafot and wrote that it is permitted to set a low price even for an item requiring repair, since it is considered that he fully has it and as though he is selling it now cheaply.

This teaches us: Since the collection of the debt is lacking,

even though he has credit in the city, since he has not yet collected it, it should not be considered as though he has it now.

The Ritva inferred from the expression “the collection of the debt is lacking” that even if the suppliers swore that they would supply the merchandise to the seller, he is still considered not to have it, since the deficiency is that he has not yet collected it. Because it is considered

as though they are nonexistent,

and since he does not have it, this is an advance of the money before the sale, and it is prohibited because of interest.

The Gemara is now discussing a person who borrowed money from his fellow, and the lender said to him: “There are such and such coins here,” and it turns out that there is more there. Is the surplus to be attributed to an error on the part of the giver, or should one say that he gave the surplus as a gift?

And Rav Naḥman said: One who borrows coins from his fellow,

and the lender said to him: “There are such and such coins here,”

and he found in it

the borrower

an excess,

more than he had told him—there is a matter to consider: whether the surplus money that the borrower received was given to him by the lender in error, or as a gift.

From the language of the Gemara, “he borrowed,” it appears that it concerns the giving of a loan, and the error is the lender’s, who added more at the time of the loan. For if it concerned a borrower who repaid, it should have written “he borrowed” in the causative form. However, from the language “from his fellow,” it implies that it is an error of the borrower at the time he repaid the loan, for if it concerned the lender’s giving, it should have written “to his fellow.” And Rashi, although at first he wrote “the one who received the money,” which can be understood to refer to both cases, whether in a loan or in repayment, nevertheless the Penei Yehoshua inferred that Rashi wrote, “It is possible to say that the lender erred,” meaning that it concerns an error at the time of the loan. But if the lender found more after the borrower repaid him, in every case we attribute it to interest, and it must be returned to the borrower. Although it is explained in the Mishna below (75b) that delayed interest is prohibited only in a case where he explicitly states that he is giving it for the loan, but in an unspecified case it is not prohibited, the Penei Yehoshua wrote that since he gives it at the time of repayment, it is as though he explicitly stated that it is in return for the loan. However, the Tur understood from Rashi and the Rambam that even at the time of repayment, when unspecified, it is permitted. Their source is Ravina below (73b), who would set a price for wine, and when they would count it for him, they would add a little more for him. The Tur understood from Rashi and the Rambam that since he did not explicitly state it, it is permitted to add more even at the time of repayment. It is possible to reject the proof from there, since there the matter is not a loan but rather setting a price; therefore, when he adds more for him, this is a reduction in the sale, and it is permitted. (The Bach, section 160, subsection 6.) If it is in a manner in which the mind errs,

as will be explained below, in which ways it is to be attributed to an error,

he is obligated

the borrower

to return it to him

to the lender—the surplus money that was given in error.

And if not,

that it cannot be attributed to an error,

it is merely a gift that he gave him

the lender to the borrower, and he concealed the gift together with the loan money.

And the Gemara discusses:

What are the circumstances of “in a manner in which the mind errs,”

where there is concern that the surplus was given in error?

Rav Aḥa, son of Rav Yosef, said: