Bava Metzia 66b (סו:) — the Talmud in English

Alternatively, you can say that he told him: “Acquire it from now,

if I do not repay you within three years, it is yours from now. And when he transfers ownership from now, this is not an asmakhta, but he makes a firm decision to transfer ownership .

Mar Yanuka and Mar Kashisha, the sons of Rav Ḥisda, said to Rav Ashi: This is what the Nehardeans said in the name of Rav Naḥman: With regard to this asmakhta,

as in the case discussed by the Mishna, where he said to him, “If you do not repay me within three years, the field will be mine”:

At the appointed time,

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

it is acquired

by the creditor.

Before the appointed time,

before the time for repayment arrived,

it is not acquired.

He said to them: Everything is acquired at the appointed time and is not acquired before the appointed time,

so why did the Nehardeans state this specifically with regard to an asmakhta?

Perhaps this is what you are saying [

perhaps you mean that the Nehardeans intended something else]: If

he encountered

the borrower

within the appointed time,

before the time for repayment arrived, and

he said to him, “Acquire it,”

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

it is acquired

by the creditor. There is no deficiency of asmakhta here .

And when they said that it is not acquired before the appointed time, they meant that if the borrower encountered the creditor

after the appointed time,

when the time for repayment had already arrived, and

he said to him, “Acquire it”

the field, and I will no longer redeem it,

it is not acquired.

What is the reason

that it is not acquired?

Because when he told him, “Acquire it,”

he said this out of embarrassment,

as he had no money with which to repay the debt, while he intended to redeem the field. But when he tells him, while it is within the appointed time, “Acquire it,” he certainly does not intend to redeem the field. For if that were not so, why would he tell him “Acquire it”? The creditor cannot demand repayment from him now.

That is not so [

that is not the law].

Even if

he said this to him

within the appointed time, it is likewise not acquired,

because he intends to redeem the field.

And the fact that he tells him, “Acquire it,”

even though the creditor cannot presently demand repayment from him,

is because

the borrower

thinks that when the appointed time

for repayment

arrives, the creditor will not come

to him

to trouble him,

so that he will not trouble me by demanding that I repay the debt immediately.

Rav Pappa said: With regard to this asmakhta, sometimes it is acquired and sometimes it is not acquired.

He encountered

the borrower on the day on which he had to repay the debt , and saw him

drinking beer

in a shop,

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

because from his behavior it is evident that he is not seeking money in order to redeem the mortgaged field. He has made a firm decision to give the field to the creditor in repayment of the debt .

But if he found him

turning over coins [

seeking money],

it is not acquired.

Rav Aḥa of Difti said to Ravina:

How can it be proven from the fact that the borrower is drinking beer that he is not seeking money?

Perhaps he is drinking

to dispel his anxiety

.

Alternatively,

he is happy and is not seeking money because

another person has arranged to lend him money,

to give him the money later. Therefore, there is no proof from his drinking beer that he intends 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 is selling his possessions,

he is particular about the price

and does not sell them below their value,

he certainly acquires it,

because this proves that he is not seeking money and has made a firm decision to give the field to the creditor in repayment of the debt .

Rav Aḥa of Difti said to Ravina:

How can it be proven from the fact that the borrower is particular not to sell his possessions below their value that he is not seeking money?

Perhaps

he is particular not to sell below value

because he thinks, so that his field will not be devalued,

as if people see him selling his possessions below their value, they will know that he is under pressure to sell, and his fields will be devalued.

Rather, Rav Pappa said: If he is particular with regard to land

not to sell his fields even at their value,

he certainly acquires it,

because this proves that he is not seeking money.

And Rav Pappa said: Although the Sages said that an asmakhta is not acquired, it becomes an apotiki for collection

from it,

and the creditor acquires the field against the amount of the loan. [The early authorities explain that the word “apotiki” is a compound word: “from here, let there be,” meaning: From this there shall be your repayment.]

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

Why do you say that the creditor acquires it against the amount of the loan?

Did he tell him

the borrower

“Acquire it for collection”!?

He told him, “Acquire the entire field,” and since his words do not take effect, by what means did the creditor acquire it for collection?

Mar Zutra, son of Rav Mari, said to Ravina: And if he said, “Acquire it for collection from it,”

we understand Rav Pappa’s statement, that

“Acquire it”

means against the value of his money.

But

ultimately, it is an asmakhta,

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

and an asmakhta is not acquired!

Rather, what is the apotiki that Rav Pappa mentioned?

It cannot be that Rav Pappa erred in this matter .

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

And he transfers to him a right in the field, so that he may collect his debt from it; consequently, the borrower cannot repay him with movable property or with other land . In other words, in addition to the borrower’s saying to the creditor, “If I do not repay you within three years, the entire field will be yours,” he further told him that even within the three years, “You shall have no repayment except from this,” and I will not be able to repay you with anything else. Rav Pappa says that although the transfer of the entire field does not take effect, because it is an asmakhta, the apotiki does take effect, and the borrower cannot repay him with anything else .

There was a certain man who sold land to another with a guarantee, [

the seller writes a guarantee to the buyer, so that if the land is stolen and its rightful owner takes it from him, or if 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 undertake that

if it is seized from me,

then although by law I am entitled to collect from you intermediate-quality land,

I will collect for you from the finest land that you possess.

The seller said to him,

the seller replied:

I will not collect for you from the finest of the finest, because we require it to remain before me

[that it should remain in my possession].

. Rather,

I agree to undertake that

I will collect for you from other finest-quality land that I possess.

Ultimately, it was seized from him

the buyer , and also

a breach came

a river overflowed.

He took the finest of the finest

of the seller’s land.

Rav Pappa thought to say: He told him, “From the finest,”

that he would collect if the land were seized from him,

and this remains

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

Rav Aḥa of Difti said to Ravina: Let him say to him,

the seller to the buyer:

When I told you, “I will collect for you from the finest,” the finest of the finest was extant,

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

now,

when the finest of the finest has been ruined,

the finest remains for him in place of the finest of the finest.

For this is now the choicest land among my properties, whereas I undertook to give you the land inferior to it .

Rav bar Shava was owed

a debt by

Rav Kahana in the amount of dinars.

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, I transfer ownership of the wine to you in repayment of the debt.

Rav Pappa thought to say

that if he did not repay him by the specified day, Rav Kahana acquired the wine, and there was no deficiency of asmakhta. Because

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

as a person is not accustomed to sell his land. Therefore, even when he tells him, “If I do not repay you, acquire the field for repayment of the debt,” he does not make a firm decision to transfer ownership.

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

And he does not intend to transfer ownership.

Rav Huna, son of Rav Yehoshua, said to Rav Pappa: This is what we say in the name of Rabba: With regard to every conditional statement,

where a person transfers ownership on the condition, “If I do not do such and such,”

he does not acquire it.

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

Rav Naḥman said: Now that the Rabbis have said that an asmachta does not effect acquisition, if one lends money against a field, and the lender says to the borrower, “If you do not repay me within three years, it will be mine,” and the borrower did not repay within three years, but only after three years, the land returns to the borrower, since this is an asmachta and the acquisition does not take effect.

And if they thought that the sale had taken effect, and the lender consumed produce after three years, once they learn that the sale did not take effect, the produce that he consumed after three years must be returned.

And we raise an objection: Is that to say that Rav Naḥman holds that mistaken relinquishment is not relinquishment? Therefore he says that even though the seller and the buyer thought that the sale had taken effect, and there is relinquishment on the part of the seller, since he intends that the buyer consume the produce, once they learn that the sale did not take effect, “the produce must be returned,” because the seller relinquished it on the assumption that the sale had taken effect, and this was a mistake.

But it was stated elsewhere that Rav Naḥman holds that mistaken relinquishment is relinquishment.

If one sells the produce of a date palm to another before the produce has come into the world, and says to him, “When it comes into the world, it 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, as there is nothing upon which the acquisition can take effect.

Once the produce has come into the world, he may no longer 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 an object that has not yet come into the world, and at the time they performed the acquisition, the produce was not in the world. And Rav Naḥman said: I concede to Rav Huna that if, once the produce came into the world, the buyer seized the produce and consumed it, because they thought that the sale had taken effect, even when they learn that the sale did not take effect, we do not take from him the produce that he consumed until he learned of this. The Gemara understands that the reason we do not take it from him is that when the buyer consumed the produce, they thought that the sale had taken effect, and consequently there was relinquishment on the part of the seller. And even though he relinquished it because he thought that the sale had taken effect, and this was a mistake, Rav Naḥman holds that mistaken relinquishment is relinquishment? It is clear that everyone agrees that the rule “mistaken relinquishment is relinquishment” applies not only where the object is no longer extant and relinquishment alone suffices, but also where the object is extant and an act of acquisition is required. This is likewise clear from Rashi and Tosafot on page 67: Rashi says that an ailonit has no claim to the worn garments, even when the clothing she brought to him still exists, while Tosafot say that she has no claim to the produce, even when the produce she gathered is still extant. The Gemara understood that the reason she need not be given these items is that mistaken relinquishment is relinquishment. (See also Responsa Oneg Yom Tov, Oraḥ Ḥayyim, responsum 38.) Accordingly, a major innovation is apparent here in the Gemara: even though there is now no דעת מקנה and דעת קונה, 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, suffice to effect an acquisition. What is the reason that mistaken relinquishment is relinquishment? After all, throughout the Torah, something done in error is considered as though it was done without intent. The Ramban explains as follows: “He is content to stand by his word, and it is like relinquishment done knowingly.” That is, even though it was done in error, and had he known the truth he would not have relinquished it, nevertheless, once he erred and relinquished it, he wishes to uphold what he did, and this is like relinquishment done knowingly. The Hagahot Asheri gives another reason, thereby resolving what Tosafot ask, in their commentary on the words “There, it is a sale,” from the Gemara in Nazir 31a: Consecration made in error is not consecration; and from the Gemara in Gittin 14a: Every acquisition made in error is void. He says that when the property is in the seller’s possession, he has the power to retract, since he transferred it in error. Similarly, consecration made in error does not take effect, because one must resolve it in his heart, and this is not a true resolution, since he was mistaken. But here, when the property is in the buyer’s possession, even though the sale was made in error, the other party acquires it. For even though he did not resolve in his heart to transfer it, once he says that he is transferring his ownership, the fact that he had not already resolved to transfer it does not prevent the buyer from acquiring the object; the acquisition takes effect by virtue of the buyer, who is not mistaken and wishes to acquire it. The Gaon Rabbi Shimon Shkop, of blessed memory, explains something similar in his work Sha'arei Yosher, Gate 5, chapter 12.

And we answer: There, in the case of one who sells the produce of a date palm, it is a sale, and in that case Rav Naḥman holds that mistaken relinquishment is relinquishment; therefore, we do not take from the buyer the produce that he consumed.

Here, in what Rav Naḥman said regarding an asmachta, it is a loan, and in that case he holds that although mistaken relinquishment is relinquishment, we take the produce from the lender. For in the case of a loan, when the lender consumes produce without paying for it, it appears to be fixed interest, and fixed interest is recoverable in court. In Ayelet HaShaḥar, it is left unresolved whether Rashi’s intention is that in every case of interest involving a loan, it is considered fixed interest and is recoverable in court—even if the lender stipulated nothing with the borrower, and the borrower gave him interest 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, as in the case of an asmachta, where he stipulates with him that he will give him the field after three years; or in the case of one who stipulates concerning produce, where he stipulates with him that he will give him produce even if its price rises. Were this not a manner of sale, it would appear to be fixed interest. But if he stipulated nothing with him, even if the borrower gives him interest, it does not appear to be fixed interest. The novellae attributed to the Ritva, with the commentary Kor la-Zahav, raise an objection to Rashi from the case of a loan of a measure for a measure. That is a manner of loan, yet the borrower does not return it from the lender to the borrower, because it is the dust of interest. But the Ritva and the Hagahot Asheri say that Rashi’s position is that in the case of an asmachta it is fixed interest by Torah law. Since its essential nature was a loan, and the condition of sale is an asmachta, the borrower did not resolve in his mind to transfer ownership. Consequently, it is as though there had never been a condition of sale, but only a condition that the lender consume the produce. This is fixed interest. This is also the position of the Rambam in the Laws of Lender and Borrower, chapter 6, halakha 4. According to the wording of Rashi before us, however, it appears from his words that this is interest prohibited by rabbinic law. The Ramban writes that the reason it is not fixed interest by Torah law is that the borrower and the lender believe that the sale has taken effect, and they do not intend to retract from the sale. Consequently, the lender consumes the produce by virtue of the sale and not by virtue of interest, and such a case is not prohibited by Torah law. The Penei Yehoshua gives another reason why this is not interest prohibited by Torah law, based on Rashi’s words above, on page 62b: When the interest is uncertain, because it is possible that the field will be blighted and produce no fruit, it is not prohibited by Torah law. See below, on page 67, the note discussing at length Rashi’s and the Rambam’s positions when the interest is uncertain. The Gra, in his commentary on the Shulḥan Arukh, Yoreh De'ah, section 160, subsection 7, proves from Rashi that relinquishment is ineffective with regard to interest, even if the lender has already taken the interest and the borrower relinquishes his claim and does not require him to return it. For if relinquishment were effective, why do we take the produce from the lender? The borrower relinquishes his claim against him, and mistaken relinquishment is relinquishment. The novellae of Rabbi Shlomo Heiman, of blessed memory, on Bava Metzia, section 7, likewise offers this proof. However, the Ritva here has already addressed this matter. He writes that even according to the views that relinquishment is effective with regard to interest, only complete relinquishment is effective, whereas here there is no complete relinquishment. Tosafot, in their commentary on the words “There, it is a sale,” raise an objection to Rashi’s interpretation: According to his words, Rav Naḥman disagrees with Ravina above, on page 62b, who says that a mortgage without deduction is the dust of interest and that it is not taken from the lender and returned to the borrower. Rashi, however, writes on page 67a, in his commentary on the words “Here too, he did not stipulate it for him,” that there are amoraim who disagree with Rav Naḥman, and it is possible that he holds that Ravina also disagrees with him. (See Penei Yehoshua; this also appears to be the position of the Rashba.) The objection from the Gemara on page 67a is likewise not difficult for this reason, because there it is Mar, son of Rav Yosef, in the name of Rava, who says this, and Rashi says there that Rava disagrees with Rav Naḥman. Perhaps this is why the Ramban does not raise this objection against Rashi. These objections do not apply to the Rambam, because he distinguishes between a mortgage and an asmachta. See below, on page 67, the note explaining the Rambam’s position. Approach two: The Rif and the Ramban explain the Gemara in the manner of Rashi, that in the case of a sale, mistaken relinquishment is relinquishment. But they explain differently the reason that in the case of a loan “the produce must be returned.” The Rif writes as follows: “In a sale, where there is no prohibition, his relinquishment is relinquishment; in a loan, where there is a prohibition, his relinquishment is not relinquishment.” The Ramban and the Rashba explain that in the case of a loan, once the sale is void, if the lender consumes produce without paying its value, there is a prohibition of interest. Therefore, we can ascertain that he does not relinquish it, because this would result in a prohibition of interest; there is no relinquishment here, and therefore “the produce must be returned.” But in the case of a sale, he is content to stand by what he did, and this is like relinquishment done knowingly. The Hagahot Asheri cites this interpretation of the Rif and adds: Alternatively, the Sages enacted that there should be no relinquishment, so that this would not lead to any prohibition. Tosafot and other Rishonim raise an objection: It follows from the sugya here that Rav Naḥman holds that mistaken relinquishment is not relinquishment. The Rosh and the Ritva here, and the Ramban in Bava Batra 41a, answer that the case in the Gemara there resembles exploitation, concerning which the Gemara below says that Rav Naḥman concedes that it is not relinquishment. There, he believes that it is his fellow’s land, and therefore assists him in establishing the wall. There is no relinquishment at all. The Beit Meir wonders why Tosafot do not answer in this manner. Perhaps Tosafot raise their objection from the wording of the Gemara, “It is mistaken relinquishment,” from which it appears that in every case it is not relinquishment. The Rosh, in section 32, answers with the aforementioned resolution, and thereby also resolves the other objections of Tosafot. Approach three: The Rashba cites the position of Sefer HaYashar, that the reason that in the case of an asmachta “the produce must be returned” is that this too resembles exploitation, concerning which the Gemara below says that Rav Naḥman concedes that it is not relinquishment. The reason is that his intention is to give the produce to the lender as part of a sale, but he never intended to give it as interest; this is 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 it, and even if the sale does not take effect, the buyer consumes the produce as part of the sale. Therefore, there is relinquishment here, although it is mistaken; and mistaken relinquishment is relinquishment. This is the meaning of the Gemara’s statement, “There, it is a sale; here, it is a loan.” The other Rishonim who do not interpret it in this manner hold that an asmachta does not resemble exploitation. Approach four: Tosafot, in the name of Rabbeinu Tam, interpret the Gemara as retracting its initial assumption that the reason that when he “seized and consumed” we do not take it from him is that mistaken relinquishment is relinquishment. Rather, mistaken relinquishment is indeed not relinquishment, and we do not take it from him because the relinquishment is not mistaken. Although he may retract because this is an object that has not come into the world, he should not retract, so that he will stand by his word, when 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 has completely relinquished his claim. But “here, it is a loan” means that from the outset the lender entered into the arrangement as a loan, and the borrower thought that he would repay him before three years elapsed and that 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 relinquishment is mistaken and is not relinquishment; therefore, “the produce must be returned.” (This is explained in the Hagahot Asheri and in the Ritva.)