Bava Metzia 66b — the Talmud in English

Alternatively, if you wish, say that he said to him: Acquire it from now,

if I do not repay you within three years, it is yours from now. And when he transfers it from now, this is not asmakhta, but he resolves in his mind to transfer it to him .

Mar Yanuka and Mar Kashisha, the sons of Rav Chisda, said to Rav Ashi: This is what the Nehardeans said in the name of Rav Nachman: This asmakhta,

such as the manner in which the Mishna speaks, that he said to him: If you do not repay me within three years, the field will be mine.

At its time,

the time that they set for repayment arrived, and he did not repay,

it is acquired

by the creditor.

Before its time,

before the time of repayment arrived,

it is not acquired.

He said to them: Everything at its time is acquired; before its time it is not acquired,

and why did the Nehardeans say this with regard to asmakhta?

Perhaps this is what you are saying

[perhaps your intention is to say that the Nehardeans intended something else]: If

he found

the borrower the creditor

within its time,

before the time of repayment arrived, and

said to him: Acquire it

the field, and I will no longer redeem it, and through this I am repaying the debt,

he acquires it

the creditor acquires the field. And there is no deficiency of asmakhta here .

And what they said, “before its time it is not acquired,” their intention is that if the borrower met the creditor

after its time,

and the time of repayment had already arrived,

and said to him: Acquire it

the field, and I will no longer redeem it,

he does not acquire it.

What is the reason

he does not acquire it?

Because what he said to him, “Acquire it,”

he said to him because of embarrassment,

for he has no money with which to repay the debt, and his intention is to redeem the field. But when he says to him, “Acquire it” within its time, surely he does not intend to redeem the field, for if not, why does he say to him, “Acquire it”? After all, the creditor cannot claim it from him now.

That is not so,

[the law is not so].

For even if

he said this to him

within its time, he likewise does not acquire it,

because his intention is to redeem the field.

And this—that he says to him: Acquire it,

even though now the creditor cannot claim it from him—

he reasons

the borrower

that when its time arrives

for repayment,

the creditor should not come

the creditor

to trouble him,

so that he will not trouble me to repay the debt to him immediately.

Rav Pappa said: This asmakhta is sometimes acquired and sometimes not acquired.

He found

the creditor the borrower on the day on which he must repay the debt , and saw him

drinking beer

in a shop,

in order to rejoice, and he did not repay until the end of the day. It is acquired,

for it is recognizable from his movements that he is not seeking money in order to redeem the mortgaged field. And he resolved in his mind to give the field to the creditor in repayment of the debt .

And if he found him

turning over coins

[seeking money],

he does not acquire it.

Rav Acha of Difti said to Ravina:

How is it possible to prove from the fact that the borrower drinks beer that he is not seeking money,

perhaps he is drinking

[to dispel his worry]

to dispel his fear?

Alternatively,

he is happy and is not seeking money because

another person provided him with money on credit,

to give it to him later. And there is no proof from his drinking beer that his intention is to give the field to the creditor in repayment of the debt.

Rather, Ravina said: If

on the day on which he must repay the debt, when he sells his belongings,

he is particular about their price

not to sell them below their value,

he certainly acquires it,

for this is proof that he is not seeking money, and he resolved in his mind to give the field to the creditor in repayment of the debt .

Rav Acha of Difti said to Ravina:

How is it possible to prove from the fact that the borrower is particular not to sell his belongings cheaply that he is not seeking money?

Perhaps

he is particular not to sell cheaply

because he reasons: So that his field should not become cheap,

for if they see him selling his belongings below their value, they will know that he is pressed to sell, and his lands will become cheap.

Rather, Rav Pappa said: If he is particular regarding land

not to sell his lands even at their value,

he certainly acquires it,

for this is proof that he is not seeking money.

And Rav Pappa said: Even though the Sages said that asmakhta is not acquired, it is an apotiki for collecting

from it,

and the creditor acquires in the field [property] corresponding to the loan [the early authorities explain the word “apotiki” as a compound word: “from this shall there be for you repayment”].

Rav Huna, son of Rav Natan, said to Rav Pappa:

Why do you say that the creditor acquires [property] corresponding to the loan?

Did he say to him

the borrower

“Acquire it for collection”!?

After all, he said to him, “Acquire all of it,” and since his words do not stand, through what did the creditor acquire it for collection?

Mar Zutra, son of Rav Mari, said to Ravina: And if he said, “Acquire it in order to collect from it,”

we understand Rav Pappa's words, that

he acquires

corresponding to his money?

After all,

ultimately it is asmakhta,

for he transfers the field to him for collection only if he does not repay him within three years,

and asmakhta is not acquired!

Rather, the apotiki that Rav Pappa said—what is it,

since it is impossible that Rav Pappa erred in this .

That he said to him: You shall have no repayment except from this.

And he transfers to him a right in the field, to collect his debt from it; and through this, the borrower cannot repay him with movable property or with other land . That is to say: In addition to the fact that the borrower said to the creditor, “If I do not repay you within three years, the entire field will be yours,” he further said to him that even within three years, “You shall have no repayment except from this,” and I will not be able to repay you with something else. Regarding this Rav Pappa said that even though the transfer of the entire field does not take effect, because it is asmakhta, the apotiki takes effect, and the borrower cannot repay him with something else .

There was a certain man who sold land to his fellow with a guarantee,

[the seller writes a guarantee to the buyer, so that if the land is stolen and the one from whom it was stolen takes it from him, or the seller's creditors collect it from him, he will give him other land].

He said to him

the buyer said to the seller: I want you to obligate yourself to me that

if it is taken from me,

even though my law is to collect from you medium-quality land,

I will collect it for you from the finest of the finest land that you have.

He said to him

the seller

“I will not collect for you from the finest of the finest, for we need it to remain before me”

[that it should remain in my possession].

Rather,

I agree to obligate myself that

I will collect for you from other finest land that I have.

Ultimately, they took it from him

the buyer , and also

a breach came

[a river washed away].

He took the finest of the finest land

of the seller.

Rav Pappa thought to say: “From the finest land” he said to him

that he would collect if it were taken from him,

and behold, there remains

the finest land in the seller's possession, and he must give it to the buyer.

Rav Acha of Difti said to Ravina: Let him say to him

the seller to the buyer:

“When I said to you, ‘I will collect from the finest land,’ it was when the finest of the finest remained,

and the choicest land among my properties remained in my possession. But

now,

when the finest of the finest has deteriorated,

the finest land stands for him in place of the finest of the finest.

For this is now the choicest land among my properties, and I obligated myself to you regarding the land inferior to it .

Rav bar Shava was owed

[was a creditor]

money by Rav Kahana.

He said to him

Rav bar Shava said to Rav Kahana:

“If I do not repay you by a certain day, collect

your debt

from this wine.”

That is to say: I transfer the wine to you for repayment of the debt.

Rav Pappa thought to say

that if he did not repay by a certain day, Rav Kahana acquires the wine, and there is no deficiency of asmakhta here. Because

when we say that asmakhta is not acquired, this applies to land, which is not standing to be sold,

for a person is not accustomed to sell his land. Therefore, even when he says to him, “If I do not repay you, acquire the field for repayment of the debt,” he does not resolve in his mind to transfer it.

But wine, since it stands to be sold, is considered like money.

And it is not in his mind to transfer it.

Rav Huna, son of Rav Yehoshua, said to Rav Pappa: This is what we say in the name of Rabba: Every “if,”

where a person transfers something on condition that I do not do such and such,

is not acquired.

For this is asmakhta, and “every” includes movable property as well .

Rav Naḥman said: Now that the Sages have said that an asmachta does not acquire, if he lent him money against his field, and the lender said to the borrower, “If you do not repay me within three years, it is mine,” and the borrower did not repay within three years, but only after three years, the land returns to the borrower, for this is an asmachta, and the acquisition did not take effect.

And if they thought that the sale had taken effect, and the lender ate produce after three years, when it became known to them that the sale had not taken effect, the produce that he ate after three years must be returned.

And we object: Is this to say that Rav Naḥman holds that waiver made in error is not a waiver? Therefore he says that even though the seller and the buyer thought that the sale had taken effect, and there is waiver on the part of the seller, since his mind is that the buyer should eat the produce, when it became known to them that the sale had not taken effect, “the produce must be returned,” because the seller waives [his claim] because he thinks that the sale took effect, and this is an error.

But it was stated elsewhere that Rav Naḥman holds that waiver made in error is a waiver.

One who sells the produce of a date palm to his fellow before the produce has come into the world. And he says to him: When they come into the world, they will be yours.

Rav Huna said: Before the produce has come into the world, the seller may retract, because the acquisition has not yet taken effect, for the acquisition has nothing upon which to take effect.

Once the produce has come into the world, he may not retract, because as soon as the produce comes into the world, it is acquired by the buyer.

And Rav Naḥman said: Even once it has come into the world, he may retract, because he holds that a person cannot transfer ownership of a matter that has not come into the world. And at the time when they performed the acquisition, the produce was not in the world. And Rav Naḥman said: I concede to Rav Huna that if, when the produce came into the world, the buyer seized the produce and ate it, because they thought that the sale had taken effect, even when it became known to them that the sale had not taken effect, we do not take from him the produce that he ate until it became known to him. The Gemara assumes that the reason we do not take it from him is that when the buyer ate the produce, they thought that the sale had taken effect, and consequently there is waiver on the part of the seller. And even though he waives because he thinks that the sale took effect, and this is an error, Rav Naḥman holds that waiver made in error is a waiver? It is written in the novellae attributed to the Ritva that the Gemara’s wording, “he seized and ate,” is not specifically so; rather, since he lifted them, he acquired them. And even if he did not eat the produce, we do not take it from him. And this is written in the Tur and in the Shulḥan Arukh, Ḥoshen Mishpat, section 209, paragraph 4, and this is its wording: “And if the buyer advanced and seized the produce, we do not take it from him,” implying that this is so even if he did not eat it. And the Derisha likewise wrote concerning the words of the Tur, and this is its wording: “And as for that which our master wrote, ‘and if he advanced and seized,’ and it implies even when the produce is visibly in his possession, while Rav Naḥman said ‘he seized and ate’—this is because ‘ate’ is not specifically so; rather, whenever he seized them and they are in his possession, it is considered as though he ate them.” However, in the novellae attributed to the Ritva, with the commentary Kor Lazahav, he disagrees with this and writes in the name of the master, the author of Tosafot: specifically when he ate [produce] that is no longer present; in this case we do not take it from him. But if it is in his possession, even if he has already picked it, he has not acquired it, and we take it from him, because the act of acquisition cannot acquire it for him. See there for the reason. It is explained that everyone agrees that the rule “waiver made in error is a waiver” applies not only where the matter is no longer present and waiver is sufficient, but also where the matter is present and acquisition is required. And this is likewise explained by Rashi and Tosafot on page 67: Rashi says that an aylonit has no worn garments, even when the garments that she brought to him still exist; and Tosafot say that she has no produce, even the produce that he gathered and which is still present. And the Gemara assumed that the reason he need not return it to her is that waiver made in error is a waiver. And according to this, a great novelty is explained here in the Gemara: even though there is now no intention of the transferor and acquirer, because they believe that the acquisition has already taken effect, nevertheless, the seller’s very intention that this belongs to the buyer, and the buyer’s intention that it is his, are effective to perform an acquisition. What is the reason that waiver made in error is a waiver? For throughout the Torah, a matter done in error is like a matter done without intention. The Ramban explains as follows: “It is pleasing to him to stand by his word, and it is like waiver with knowledge.” That is to say: even though it is in error, and if he had known the truth he would not have waived it, nevertheless, since he erred and waived it, his will is to stand by what he did, and this is like waiver with knowledge. The Hagahot Asheri gives another reason, and with this he resolves what Tosafot, in the comment beginning “there, it is a sale,” ask from the Gemara in Nazir 31, that consecration made in error is not consecration, and from the Gemara in Gittin 14, that every acquisition made in error is reversed. He says that where the money is in the seller’s possession, he has the power to retract, since he transferred it in error. Likewise, consecration made in error does not take effect, because he must complete it in his heart, and this is not completion since he erred. But here, where the money is in the buyer’s possession, his fellow acquires it even though the sale was in error. For even though he did not complete in his heart his intention to transfer ownership, since he says that he is transferring ownership, his ownership no longer prevents the buyer from acquiring the object, and the acquisition takes effect by the power of the buyer, who has no error and wishes to acquire. The late Rabbi Shimon Shkop explains something similar in his book Shaarei Yosher, gate 5, chapter 12.

And we answer: There, in the case of one who sells the produce of a date palm, this is a sale, and in this Rav Naḥman holds that waiver made in error is a waiver; therefore, we do not take from the buyer the produce that he ate.

Here, in what Rav Naḥman said concerning an asmachta, this is a loan, and in this he holds that even though waiver made in error is a waiver, we take the produce from the lender. For in a loan, when the lender eats produce without paying for it, this appears to be fixed-interest ribit. And fixed-interest ribit is recoverable through the courts. Therefore Rashi concludes that the rule that the dust of ribit is not recoverable through the courts applies only to a sale and not to a loan, because in a loan it always appears like fixed-interest ribit. In the book Ayelet HaShaḥar, he is uncertain whether Rashi’s intention is that in every form of ribit in a loan it is like fixed-interest ribit and is recoverable through the courts, even if the lender stipulated nothing with the borrower and the borrower gave him ribit before repaying the debt; or whether Rashi’s words apply only when he stipulates with him at the time of the loan that he will give him an addition, such as in an asmachta, when he stipulates with him that he will give him the field after three years; or when he stipulates concerning produce, stipulating with him that he will give him produce even if its price rises. Were this not a manner of sale, it would appear like fixed-interest ribit. But if he stipulated nothing with him, even if the borrower gives him ribit, it does not appear like fixed-interest ribit. In the novellae attributed to the Ritva, with the commentary Kor Lazahav, he asks against Rashi from a loan of a seah for a seah, which is a manner of loan, and they do not recover it from the lender for the borrower, because this is the dust of ribit. But the Ritva and the Hagahot Asheri say that Rashi’s method is that in an asmachta this is fixed-interest ribit by Torah law. Since its principal nature was a loan, the sale condition is an asmachta, and the borrower did not complete in his mind his intention to transfer ownership. Consequently, it is as though there had never been a condition of sale, but only a condition that the lender would eat produce. And this is fixed-interest ribit. This is likewise the method of the Rambam in the Laws of Lender and Borrower, chapter 6, law 4. According to the wording of Rashi before us, however, it appears from his words that this is ribit by rabbinic law. The reason that it is not fixed-interest ribit by Torah law is written by the Ramban: the borrower and the lender think that the sale has taken effect, and they do not intend to retract from the sale. Consequently, the lender eats the produce by virtue of a sale and not by virtue of ribit. In such a case this is not prohibited by Torah law. The Penei Yehoshua writes another reason that this is not ribit by Torah law, based on Rashi’s words above on page 62: where the ribit is not certain, because it is possible that the field will be damaged and will not produce fruit, this is not prohibited by Torah law. See below, on page 67, a lengthy note concerning the method of Rashi and the Rambam when the ribit is not certain. The Gra, in his commentary to the Shulḥan Arukh, Yoreh De’ah, section 160, letter 7, proves from Rashi that waiver does not help with ribit, even if the lender has already taken the ribit and the borrower waives his claim that he return it. For if waiver helps, why do we take the produce from the lender? After all, the borrower waives his claim against him, and waiver made in error is a waiver. He proves this likewise in the novellae of Rabbi Shlomo Heyman, of blessed memory, on Bava Metzia, section 7. However, the Ritva here has already addressed this, and writes that even according to the methods that waiver helps with ribit, specifically complete waiver helps, whereas here there is no complete waiver. Tosafot, in the comment beginning “there, it is a sale,” ask against Rashi’s explanation that according to his words Rav Naḥman disagrees with Ravina above on page 62, who says that a mortgage without deduction is the dust of ribit, and we do not recover it from the lender for the borrower. However, Rashi on page 67, in the comment beginning “here too, he did not stipulate it,” writes that there are amoraim who disagree with Rav Naḥman, and it is possible that he holds that Ravina also disagrees with him. See the Penei Yehoshua, and this also appears from the words of the Rashba. The other difficulty raised from the Gemara on page 67 likewise is not difficult for this reason, because there it is stated by Mar, the son of Rav Yosef, in the name of Rava, and Rashi there says that Rava disagrees with Rav Naḥman. Perhaps this is why the Ramban does not raise this difficulty against Rashi. These difficulties are not difficult against the Rambam, because he distinguishes between a mortgage and an asmachta. See below, on page 67, a note explaining the method of the Rambam. Method two: The Rif and the Ramban explain the Gemara in the manner of Rashi, that in a sale, waiver made in error is a waiver. But they explain differently the reason that in a loan “the produce must be returned.” This is the wording of the Rif: “In a sale, where there is no prohibition, his waiver is a waiver; in a loan, where there is a prohibition, his waiver is not a waiver.” The Ramban and the Rashba explain that in a loan, since the sale is void, if the lender eats produce without paying its value, there is a prohibition of ribit. Therefore, we have certain knowledge that he does not waive, because through this there would be a prohibition of ribit, and there is no waiver here. Therefore, “the produce must be returned.” But in a sale, it is pleasing to him to stand by what he did, and this is like waiver with knowledge. The Hagahot Asheri cites this interpretation of the Rif’s words and adds: Alternatively, the Sages instituted that there should be no waiver, so that this would not lead to any prohibition. Tosafot and other early authorities ask that from the discussion here it emerges that Rav Naḥman holds that waiver made in error is not a waiver. The Rosh and the Ritva here, and the Ramban in Bava Batra 41, answer that the case of the Gemara there resembles overreaching, concerning which the Gemara below says that Rav Naḥman concedes that it is not a waiver. For there he thinks that this is his fellow’s land, and therefore he assists him in establishing the wall; there is no waiver at all. The Beit Meir wonders about Tosafot: Why do they not answer in this manner? Perhaps Tosafot ask from the wording of the Gemara, “It is waiver made in error,” from which it appears that everywhere it is not a waiver. The Rosh, in section 32, answers with the aforementioned answer also the other difficulties of Tosafot. Method three: The Rashba cites the method of Sefer HaYashar, that the reason in an asmachta that “the produce must be returned” is that this too resembles overreaching, concerning which the Gemara below says that Rav Naḥman concedes that in this case it is not a waiver. The reason is that, in his view, his intention was to give the produce to the lender as a sale, but as ribit he never had the intention to give it, and this is something different from what he intended to do. But in the case of one who sells the produce of a date palm, his intention is to sell, and even if the sale does not take effect, the buyer eats the produce as a sale. Therefore, there is waiver in this case, only it is in error. And waiver made in error is a waiver. And this is the intention of the Gemara: “There, it is a sale; here, it is a loan.” The other early authorities who do not explain in this way hold that an asmachta does not resemble overreaching. Method four: Tosafot, in the name of Rabbenu Tam, explain the Gemara as follows: The Gemara retracts what it had assumed, that the reason of Rav Naḥman, in “he seized and ate,” that we do not take it from him, is that waiver made in error is a waiver. Rather, in truth, waiver made in error is not a waiver, and we do not take it from him because the waiver is not in error. Even though he can retract because this is a matter that has not come into the world, he should not retract, in order to stand by his word, for he said to the buyer that he was selling him the produce. Therefore, as long as he does not retract from the sale, we say that he waives it with complete waiver. But “here, it is a loan” means: From the outset, the lender entered into it as a loan, and the borrower thought that he would repay him before three years passed and the land would return to him. Consequently, it is not applicable here to say that he should not retract from the sale in order to stand by his word. The waiver is in error and is not a waiver. Therefore, “the produce must be returned.” This is explained in the Hagahot Asheri and in the Ritva.