Bava Metzia 67a (סז.) — the Talmud in English

Rava said:

I was sitting before Rav Naḥman

when he stated the ruling mentioned above, concerning one who sells the produce of a date palm: if the buyer seized the produce and ate it, we do not take it away from him.

And I wished to raise an objection to him

[I wished to challenge him on this point], based on a law that we find concerning

ona'a.

The Gemara below explains the objection.

And he noticed

[he paid attention to me and saw that I intended to challenge his words].

He showed you

[he anticipated me and showed me proof for his position] from a law that we find concerning

an aylonit.

The Gemara below explains the proof.

Now the Gemara explains the objection that Rava wished to raise against Rav Naḥman, based on the law concerning ona'a.

But what of ona'a

in a commercial transaction, whether on the seller's side, when he sold for more than the item's value, or on the buyer's side, when he bought for less than its value,

which is mistaken relinquishment,

because the one who was wronged paid willingly, intending that the payment would belong to the one who wronged him. However, this was based on a mistake, since he thought that this was the true value.

And it is not relinquishment.

For it is taught in the Mishna in chapter HaZahav that in certain circumstances the one who caused the ona'a must return the ona'a to the one who was wronged. This presents a difficulty for Rav Naḥman, who holds that relinquishment based on a mistake is relinquishment.

And he noticed; he showed you the case of an aylonit.

Now the Gemara explains the proof that Rav Naḥman brings for his position, based on the law concerning an aylonit.

In the case of an aylonit, the relinquishment is based on a mistake, yet it is relinquishment.

And the proof that it is relinquishment is from this:

as we learned in the Mishna: A me'ana,

a minor orphan whose mother or brothers married her off in a rabbinically instituted marriage, and who left her husband through mi'un, since according to the Sages' enactment she has the right, while still a minor, to refuse her husband and leave him without a get,

and a shniya,

a woman who is forbidden to her husband by the law of shniyot le'arayot, whom the Sages prohibited in order to distance a person from a Torah prohibition involving a forbidden relationship,

and an aylonit,

a woman who by nature is incapable of bearing children, called an aylonit from the word ayil, “ram,” because she lacks the signs of a woman. The case here is one in which her husband did not know that she was an aylonit when he married her,

are entitled neither to a ketuba,

the me'ana has no ketuba because she was not divorced by her husband but left him against his will. The shniya has no ketuba because the Sages penalized her. And the aylonit has no ketuba because the transaction was a mistaken transaction, since he did not know that she was an aylonit and she is not considered his wife,

nor to produce,

the husband is not required to pay them for produce that he ate from their property, even though the rabbinic enactment granting the husband the right to consume the produce of his wife's property does not apply here .

nor to sustenance,

he is not obligated to provide them with sustenance .

nor to worn garments.

If she brought him clothing as part of her dowry, even if the garments still exist he need not return her worn garments [that were worn out through use].

The reason in the case of an aylonit that the husband need not return what she brought him as part of her dowry, and need not pay her for produce that he ate from her property, is that although the transaction was mistaken, since at the time she gave these things to him she intended that they would belong to him, there was relinquishment. And this is so even though it was based on a mistake: she relinquished them because she thought that she was his wife. Relinquishment based on a mistake is relinquishment. Rav Naḥman brings this as proof for his position.

The Gemara rejects this:

It is not so: ona'a is not a refutation

of Rav Naḥman,

and the case of an aylonit does not support him

Rav Naḥman.

The Gemara explains:

Ona'a is not a refutation, because the one who was wronged did not know

that he was being subjected to

ona'a,

so that we could say

that he relinquished it to him,

the one who wronged him. In other words, there is no relinquishment here at all, because the one who was wronged did not know the reality—that he was paying more than the price.

But in the case of one who sells the produce of a date palm, the seller knows the reality: that a certain person is consuming the produce, and he is mistaken only about the reason. He thinks that the other person is entitled to it by law, whereas in truth he is not legally entitled to it. Therefore, there is relinquishment here, and relinquishment based on a mistake is relinquishment .

And the case of an aylonit does not support him.

For in this case the relinquishment is not based on a mistake,

because she is pleased

the aylonit

that the name of marriage should be removed from her,

and even if she had known that her marriage was not a valid marriage, she would have wanted him to consume the produce.

Introduction to the discussion of a mashkanta

The matter of a mashkanta is as follows: the lender takes one of the borrower's properties into his possession and control, as collateral and security for repayment of the debt.

During the years that the mashkanta remains in the lender's possession, he treats it as an owner would, works it, and consumes its produce. It follows that every loan secured by a mashkanta is a loan involving interest, because in addition to the principal that the lender is ultimately to collect from the borrower, he presently consumes the produce of the field.

We find that there were different types of mashkanta:

In some places the practice was that the borrower could not remove the lender from the mashkanta until the repayment date arrived. Even if he wished to repay the debt before that time, the lender could keep the mashkanta in his possession and refuse to accept repayment. This is called in the Gemara

a place where they do not remove [the lender].

In other places the practice was that whenever the borrower brought the repayment money, he was permitted to remove the lender from the mashkanta, and it would return to him. This is called in the Gemara

a place where they do remove [the lender].

Most of the Rishonim hold that with regard to interest, a mashkanta in “a place where they do not remove [the lender]” is less severe than a mashkanta in “a place where they do remove [the lender].” Rashi and Tosafot even hold that in a place where they do not remove the lender, it is permitted for the lender to consume the produce without deducting anything from the debt.

The Ramban disagrees and holds that it is forbidden for the lender to consume the produce, because this is the dust of interest; nevertheless, he too holds that it is less severe than in a place where they do remove the lender. For in a place where they do remove the lender, when the lender consumes the produce of the land and does not deduct it from the debt, this is fixed interest.

The Rishonim explained that the prohibition of a mashkanta in a place where they do not remove the lender is less severe because, since the borrower cannot remove the lender from the field until a specified time—even after he has already repaid the debt—the matter is considered a sale of the land for a defined period rather than a loan. It is as though the lender acquires the land from the borrower at the time of the loan and then reacquires it for him at the time of repayment.

We also find in the Gemara a mashkanta

with deduction

and a mashkanta

without deduction.

A mashkanta

with deduction

means that the lender and borrower stipulate that for every year the mashkanta remains in the lender's possession, a certain sum will be deducted from the debt. Thus, the lender does not consume the produce for free; rather, he pays for it through this deducted amount. However, this deducted sum was very small. Sometimes one dinar was deducted per year for a field that produced produce worth one thousand dinars, as explained by the Rambam.

A mashkanta

without deduction

means that the lender consumes the produce of the field without any deduction and will ultimately receive full repayment of the debt at the end of the loan period.

With regard to a mashkanta without deduction, the Rishonim disagree whether the prohibition is from the Torah or rabbinic.

With regard to a mashkanta with deduction, everyone holds that it is not prohibited by the Torah, but they disagree whether it is prohibited rabbinically.

We also find in the Gemara a mashkanta that is permitted according to all opinions, namely, a mashkanta

of the type called “de-sura.”

They would write in the document: “When these years are completed, this land shall leave without payment.” That is, the lender takes the field into his possession, and after a specified number of years returns it to the borrower, who need not repay any money at all. Thus, consumption of the produce constitutes the repayment, and there is no other repayment. In this case, even if only a small amount is deducted for each year, it is permitted. See below for the reason this type of mashkanta is permitted.

There was an incident involving

a certain woman,

a woman

who said to a certain man,

an agent:

Go and buy me land

go and purchase land for me

from my relatives

[from my relatives].

He went,

the agent went,

and bought it for her,

purchasing land for her from her relatives.

The seller said to him

at the time of the sale: I am selling on the condition that

if I obtain money

at a later time,

you will return it to me,

you will return the land to me, and I will return to you the money that you gave me.

The agent said to him

to the seller: But

you and Navla

[that was the name of the woman who sent him]

are siblings

[you are relatives]. Surely you will reach an agreement between yourselves.

The agent's intention can be interpreted in two ways. The first is: I am not involving myself in this condition; I am purchasing without a condition, and afterward you will come to an agreement between yourselves, since you are relatives. According to this interpretation, since the seller remained silent, he accepted the agent's words and sold without a condition.

The second is that his intention was to say: You are relatives, and surely the woman who sent me will be satisfied with whatever you want; therefore, the sale takes effect subject to this condition.

Rabba bar Rav Huna said: Whenever

the agent says

“You and Navla are siblings,” the seller's mind is settled

that the agent agrees to his terms,

and he does not complete the acquisition

of the land for him except on condition that if he later obtains money, he will be able to give it to her and receive the land back .

Therefore, if the seller later brings the money, indeed

the land returns,

the land returns to the seller.

But there is a doubt:

the produce

that the buyer consumed until the seller brought him the money—

what

is its status? Must he return that produce as well, or not?

The two sides of the doubt are as follows: Is it the case that

it is fixed interest,

because when the seller gives him back the money he received, it becomes clear that in practice this was a loan and not a conditional sale, and consequently the produce that the buyer consumed was fixed interest,

and it may be collected by judicial process?

Or perhaps

it is only

the dust of interest, and it cannot be

collected

by judicial process.

The Gemara below explains the reason for saying that it is only the dust of interest.

Rabba bar Rav Huna said: It stands to reason that it is the dust of interest, and it cannot be collected by judicial process.

And so Rava said: It is the dust of interest, and it cannot be collected by judicial process.

Abaye said to Rabba: What is the law concerning a mashkanta?

That is, if the borrower mortgaged his field to the lender, and as long as he does not repay the debt the lender consumes the produce of the field without deducting it from the borrower's debt, is this also only the dust of interest, or is it fixed interest?

The two sides of the doubt are:

There,

in the incident just mentioned,

what is the reason

that it is only the dust of interest?

Because he did not fix it for him,

the borrower did not establish with the lender that he would consume the produce of the field as long as he did not give him the money; rather, he consumes the produce voluntarily. Whenever the interest was not explicitly fixed, it is not fixed interest .

And if so,

here too

in the case of a mashkanta, this is not fixed-interest ribbit, because

he did not fix it,

the borrower and lender did not establish between themselves that the lender would consume the produce.

Or perhaps, there

the reason that this is not fixed-interest ribbit is that it is

a sale,

as the consumption of the produce is in the manner of a sale, since the lender entered the field by virtue of a sale .

And if so,

here

in the case of a mashkanta, this is fixed-interest ribbit, because the consumption of the produce is in the manner of

a loan.

He said to

Rabba:

There,

in the aforementioned incident,

what is the reason,

what is the reason that the consumption of the produce is considered the dust of ribbit?

Because he did not fix the amount.

Therefore,

here,

in the case of a mashkanta,

too,

this is the dust of ribbit, because

he did not fix the amount.

Rav Pappi said: Ravina carried out a practical ruling,

when there was an incident similar to the one mentioned, in which he said to him, “Go and purchase land for me,” and so forth,

and calculated

how much produce the purchaser had consumed,

and extracted

from the purchaser the value of the

produce

that he had consumed. For he held that this was fixed-interest ribbit, which is recoverable through the courts.

Unlike Rabba bar Rav Huna,

who said above that this was the dust of ribbit.

And this follows all the more so with regard to a mashkanta, that this is fixed-interest ribbit .

Mar, son of Rav Yosef, said in the name of Rava: This mashkanta,

which the borrower gave to the lender without specification, and did not

specify to him that he should consume the produce , and he consumes the produce without nikkui —

in a place where the borrower may discharge it,

if it was the custom of that place that even if the repayment date had not arrived, when the borrower brings the repayment money to the lender, the lender must accept it and return the collateral to the borrower . When

he has consumed

the lender

produce worth the value of the coins

of the debt, and the borrower comes before us and says, “I do not want him to consume my produce as ribbit,” they assess the produce he consumed, apply its value to the debt, and

we discharge him

from the mashkanta. For the debt has been repaid through his consumption of the produce.

Even though Rava said above that a mashkanta without nikkui, where he did not fix the amount, is the dust of ribbit, and the dust of ribbit is not recoverable through the courts, nevertheless here he can demand his money, because he is not considered to be demanding that the lender return the dust of ribbit. Rather, his claim is that since the lender consumed the produce of the mashkanta without specification, merely on account of the loan, and did not specify that he would consume it as ribbit, the borrower may interpret the consumption of the produce as being on account of the principal .

He consumed

the lender

more

than the value of the principal,

we do not extract it from him,

because Rava holds that this is the dust of ribbit, and the dust of ribbit is not recoverable through the courts.

And we do not calculate it from one document against another.

That is, if the borrower owes the lender money under another document, we do not calculate the amount he consumed beyond the value of the principal and say that it should serve as payment for the debt under the other document. For when the lender consumed the produce, he certainly did not consume it on account of the other debt. And it is impossible to extract the ribbit from him, because the dust of ribbit is not recoverable through the courts .

And in the case of orphans,

where the lender consumes produce from land that their father had given him as a mashkanta without nikkui.

And if

he has consumed produce worth the value of the coins, we discharge him,

as with other people.

If he has consumed more, we extract it from him.

For the court of the city is the father of orphans, and it informs anyone who consumes produce without nikkui from the field of orphans that once he has consumed produce worth the value of the principal, the debt has been repaid and he must withdraw from the field. Consequently, if he continues to consume produce, this is robbery, and we extract it from him as from a robber.

And we calculate it from one document against another,

for the reason stated above .

Rav Ashi said: Now that you have said,

if

he has consumed more

than the value of the principal,

we do not extract it from him,

because the dust of ribbit is not recoverable through the courts.

If he has consumed produce worth the value of the coins

of the principal,

we likewise do not discharge him

from the mashkanta

without money.

Only when he repays the debt does the lender return the mortgaged field to him.

What is the reason?

Discharging

the lender

without money is extracting

ribbit

from him!

For it is self-evident that he consumed the produce as ribbit.

It is the dust of ribbit, and the dust of ribbit is not recoverable

through the courts .

And the Gemara brings this proof, because for this reason it is impossible to repay the debt by the lender’s consuming the produce: