Bava Metzia 74b (עד:) — the Talmud in English

He said

in explanation,

Rava:

The rainy season is the point of their disagreement.

And there are three disputes concerning this matter:

A.

The first tanna holds that one may set a price with him for the manure throughout the entire year, both during the dry season and during the rainy season, even though the seller does not have manure, because it is always available (and it is therefore considered “he has it”).

B.

Rabbi Yosei disagrees with the first tanna and holds that one may not set a price, whether during the dry season or during the rainy season, unless the seller had manure [gathered] in the refuse heap [the place where manure is gathered].

C.

The Sages permit it during the dry season, as everyone has manure, which has already rotted and been trampled [rubbed apart by the feet of people walking on it] during the rainy season and become manure; and even if he does not have any, others do. But during the rainy season, one may not set a price, since it has not yet been trampled, and it is considered “he does not have it”

We learned in the Mishna:

“And he may set a price with him according to the higher market price.”

There was a certain man who gave money for dowry jewelry

[the daughters’ jewelry]

to his father-in-law’s household,

that is, a man whom his father-in-law appointed as an agent to set a price for and purchase jewelry [and the market price had already been established], and the agent gave the money to the seller so that he would give him the jewelry at a particular time.

Ultimately,

when the time arrived for the seller to give him the jewelry,

the price of the dowry jewelry fell;

the jewelry became cheaper [than the established market price], and the agent wanted to withdraw, because his father-in-law did not want to purchase it at the established price, but rather at the lower price.

They came,

the agent, his father-in-law, and the seller, to court

before Rav Pappa.

He said to him,

Rav Pappa said to the agent:

If you set a price with him,

with the seller,

according to the higher market price,

that is, our Mishna states: “And he may set a price with him according to the higher market price” [meaning the lower price], and it is permitted to set a price [once the market price has been established], so that if the price falls below the established price, he will give it to him at the lower price. Therefore, Rav Pappa said to him: If you explicitly set the price with the seller “according to the higher market price,”

take it at the present price,

take the dowry jewelry from the seller at the current price, which is the lower price, for that is what you stipulated with him;

but if not,

if you did not explicitly stipulate with him regarding the higher market price,

take it as it was originally,

take the dowry jewelry from the seller at the previous price, before it fell.

The Sages said to him,

they challenged him,

the Sages,

the members of the academy,

to Rav Pappa

[regarding Rav Pappa’s statement]

“But if he did not set a price, he takes it as it was originally”:

The members of the academy understood that Rav Pappa meant that the agent takes it at the previous price and cannot withdraw, and they challenged him: The agent did not perform an act of meshikha with regard to the dowry jewelry; rather,

it is money,

he gave money to the seller,

and money does not effect acquisition.

Money without meshikha does not effect acquisition of movable property, and if so, the agent may withdraw.

He said to them,

Rav Pappa answered them:

I too

also agree with you that the transaction has not been acquired; rather,

I was speaking of accepting Mi Shepara,

and all my words concerned only the fact that one who withdraws accepts upon himself the curse of Mi Shepara. And I will explain my words:

If he set a price

the agent explicitly stipulated with the seller

according to the higher market price, and the seller withdraws,

and the seller retracts the condition and does not want to provide it at the lower price,

the seller accepts upon himself

the curse of

Mi Shepara.

He said

and challenged

Ravina to Rav Pappa,

regarding Rav Pappa’s statement that if the agent did not explicitly stipulate with the seller regarding “the higher market price,” the buyer may withdraw and accept the curse of Mi Shepara, relying on the Mishna, which indicates that only if the agent explicitly stipulated regarding “the higher market price” must the seller provide it “according to the higher market price,”

Ravina challenged this:

From where

do you know that the Mishna, which requires an explicit stipulation regarding “the higher market price,”

is the view of the Sages

[earlier, 44a; 47b]

who disagree with Rabbi Shimon, who say

the Sages:

“Money does not effect acquisition,”

one who gives money to purchase an item but does not perform meshikha has not acquired it, and both the buyer and the seller may withdraw, while the one who withdraws accepts upon himself the curse of Mi Shepara,

and even so

our Mishna holds that if the market price falls in the interim, only

if he set a price

the buyer explicitly stipulated with the seller

according to the higher market price, he takes

the buyer takes

at the present price,

at the lower price; but

if he did not set a price

the buyer explicitly stipulated with the seller, “according to the higher market price,”

he takes

the buyer takes

as it was originally,

at the previous price, or he accepts Mi Shepara.

Perhaps,

it can be said that our Mishna is only in accordance with the view of

Rabbi Shimon, who says: “Money effects acquisition,”

one who gives money to purchase an item but does not perform meshikha has acquired it, and the buyer cannot withdraw even if he accepts upon himself Mi Shepara; only the seller may withdraw and accept Mi Shepara.

And therefore, even in our Mishna, which discusses a case where he gave money in order to receive the item later, and in the interim the price fell, only

when he set a price,

if the buyer explicitly stipulated with the seller

according to the higher market price, he takes

the buyer takes

at the present price,

at the lower price, since he explicitly stipulated this; but

if he did not set a price

the buyer explicitly stipulated “according to the higher market price,”

he takes

the buyer takes

as it was originally,

at the previous price.

Because the money acquired it for him.

Since his money acquired it for him, [the buyer] cannot withdraw even if he accepts Mi Shepara.

But according to the Sages,

there is room to distinguish and say that everything the Sages said—that money does not effect acquisition and that one who withdraws [whether the buyer or the seller] accepts Mi Shepara—applies only when the buyer did not give his money in order to receive the item later and the price did not change. But our Mishna, which discusses a case in which he did not give the money in order to receive the item immediately, but rather in order to receive the transaction later, and in the interim the price fell, may be understood as follows:

whether he set a price

the buyer explicitly stipulated with the seller “according to the higher market price,”

or whether he did not set a price

the buyer stipulated with the seller “according to the higher market price,”

he takes,

the buyer takes

at the present price,

at the lower price.

And the reason is:

A person’s intention is for the lower price.

When one gives money without specification in order to receive the item later, he sets the price according to “the higher market price” [to take it cheaply if the price falls in the interim], even if he did not explicitly stipulate this. Therefore, if the seller refuses to give it to him at the lower price, the buyer may withdraw, and he is not even subject to Mi Shepara [in accordance with Rabbi Yehuda in the Mishna [72b] ], and if so, this is difficult for Rav Pappa, who said that if he did not explicitly stipulate “according to the higher market price” and the buyer withdrew, the buyer accepts Mi Shepara.

He said to him,

Rav Pappa answered Ravina’s question:

You may say that he said

when do we find that

Rabbi Shimon

said that the buyer acquired the item with his money and cannot withdraw? Only

with one price,

at a single price—for example, when the price did not change, or even when it changed, but the buyer stipulated to receive the item immediately and waited; and in the interim the price fell. Since he stipulated to receive it immediately, it is certainly the case that he did not stipulate with the intention that the price might fall, but rather according to the established price.

But

with two prices,

at two different prices—for example, the market price was established and the buyer stipulated with the seller to receive the item later, and in the interim the price fell, which is the case discussed by the Mishna—we do not find that Rabbi Shimon said that money effects acquisition and that he cannot withdraw. Rather, he concedes to the Sages that the buyer may withdraw and is subject only to Mi Shepara; and if he explicitly stipulated “according to the higher market price,” he is not even subject to Mi Shepara [whereas if the seller withdraws, he is subject to Mi Shepara]. It follows that our Mishna is in accordance with everyone, both Rabbi Shimon and the Sages [since we do not find a dispute between the Sages and Rabbi Shimon “with two prices”].

And Rav Pappa adds support for his words:

For if you do not say so,

if you do not say this [as he has said], namely, that Rabbi Shimon concedes “with two prices” that the buyer may withdraw and is subject only to Mi Shepara, but rather you say [as you maintained] that even “with two prices” Rabbi Shimon holds that the buyer acquired the item with his money and cannot withdraw at all, it follows [according to your words]:

Does Rabbi Shimon have no Mi Shepara for the buyer?!

That is, is it possible to say that according to Rabbi Shimon there is no circumstance in which the buyer may withdraw and be subject only to Mi Shepara?!

And if you would say

if you maintain your position and say,

“That is also so!”

It is impossible to say this:

But it was taught

for we learned in a beraita [48a] that Rabbi Shimon himself said:

“In any event, this is the halakha”

[that by Torah law money effects acquisition].

“But the Sages said: Mi Shepara,”

and so on.

And Rav Pappa explains:

What is the meaning of “in any event”?

What is Rabbi Shimon’s intention in the beraita when he said “in any event”? These words appear to indicate that he is referring to interest.

No;

necessarily, Rabbi Shimon’s intention is to say:

“It makes no difference whether it is the buyer or whether it is the seller!”

This includes the buyer, whose law is the same as that of the seller [since there is no dispute between Rabbi Shimon and the Sages concerning the seller]: He may withdraw and accept upon himself Mi Shepara.

If so, Rabbi Shimon’s words in the beraita apparently contradict what he said in the Mishna [44a], that the buyer may not withdraw at all, even if he accepts upon himself Mi Shepara.

Rather,

necessarily,

when Rabbi Shimon said

in the Mishna, he was referring only

to one price,

but

with two prices he did not say so

[and his words in the beraita are to be understood as referring to two prices].

The Gemara continues to challenge Rav Pappa’s words, who said that if the agent did not explicitly stipulate with the seller “according to the higher market price” and the buyer withdrew, the buyer accepts upon himself Mi Shepara:

Rav Aha, son of Rava, said to Rav Ashi: Why not say that he appointed him as an agent?!

That is, in this incident, where his father-in-law appointed him as an agent to set a price for and purchase dowry jewelry, and the agent gave money without stipulating “according to the higher market price,” and the price of the dowry jewelry fell, the one who withdraws is not subject to Mi Shepara.

For the agent is not subject to the curse of Mi Shepara, since he wishes to uphold his word, but his principal [his father-in-law] prevents him and withdraws.

Nor is the principal subject to the curse of Mi Shepara, because he can argue to the agent: “I sent you only to improve matters, not to worsen them. Since you could have set the price ‘according to the higher market price’ and did not do so, you are not my agent for this transaction.”

And if so, this is difficult for Rav Pappa, who said that the buyer withdraws subject to the curse of Mi Shepara.

He said to him,

Rav Ashi answered Rav Aha [to reconcile Rav Pappa’s words]:

With a merchant,

a trader,

who buys and sells,

who purchases and resells; that is, the son-in-law was not made his father-in-law’s agent , but his father-in-law set a price to purchase from his son-in-law, and the son-in-law, who was a merchant, set a price with others [in order to sell to his father-in-law], and he would profit from this.

Mishna:

Although it is prohibited to lend a se’a for a se’a when the market price has not been established,

a person may lend to his tenant farmers

a landowner is permitted to lend to his tenant farmers

wheat in exchange for wheat,

on the condition that they return wheat to him [even if its price rises].

For seed, but not for eating.

This loan is permitted only when he lends to the tenant farmer for the purpose of sowing the field, but it is prohibited to lend him wheat for eating [on condition that he return wheat to him].

The tanna needed to teach this Mishna because

Rabban Gamliel

was stringent in this matter, and he

would lend wheat to his tenant farmers in exchange for wheat for seed, at the higher price,

if the wheat was expensive at the time of the loan—for example, a se’a stood at two sela—and he lent them a se’a,

and it became cheaper

at the time of repayment, so that a se’a stood at one sela.

Or at the lower price

if the wheat was inexpensive at the time of the loan—for example, a se’a stood at one sela and he lent them a se’a,

and it became more expensive

the wheat

at the time of repayment, so that a se’a stood at two sela,

he would take

Rabban Gamliel

from them

from his tenant farmers

at the lower price.

That is: [in case A,] when the wheat became cheaper, he took from them only one se’a, according to the lower price at the time of repayment [even though at the time he lent it to them a se’a stood at two sela, and with two sela one can now purchase two se’ah].

[In case B,] when the wheat became more expensive, he took from them only half a se’a, according to the lower price at the time of the loan, when a se’a stood at one sela; he calculated it as though he had lent them only one sela [and not a se’a], and now that the wheat had become more expensive, one sela could purchase only half a se’a.

And the Mishna teaches

“But not”

Rabban Gamliel

“did this because this was the halakha; rather, he wished to be stringent with himself.”

Gemara:

The Sages taught:

we learned in a beraita.

A person may lend to his tenant farmers wheat in exchange for wheat for seed. In what case is this said?

That it is permitted for the landowner to lend wheat to his tenant farmers for seed:

When he has not yet entered

the tenant farmer has not yet entered the field to work it in any way.

But

if he has already

entered

the tenant farmer has entered the field to work it,

it is prohibited

for the landowner to lend to him even for seed.

The Gemara asks:

What is different,

what is the reason for the distinction, that

our tanna

in our Mishna

does not distinguish,

and permits lending to him

whether he has entered or whether he has not entered, and what is different

and why

the tanna of the baraita

in the baraita

distinguishes,

and does distinguish

between whether he has entered

the sharecropper has entered the field to work it, in which case it is permitted to lend to him,

and whether he has not entered

in which case it is forbidden.

Rava said: Rav Idi explained

explained

it to me

the distinction between our Mishna and the baraita:

In the locale

in the place

of our tanna

it was customary that

the sharecropper supplies

and gives

the seed

the seed [in order to sow the field], and therefore the Mishna did not distinguish, and it is permitted

whether he has entered or whether he has not entered,

and the reason is:

as long as

for as long as

he has not supplied

the sharecropper

the seed, he can remove him.

Even if the sharecropper has “entered” and plowed, the landowner can remove him, because the sharecropper has no seed with which to sow, and the local custom is that the sharecropper supplies the seed. Therefore, when the landowner gives him wheat for seed, this is not a loan [which is forbidden lest the price of the wheat increase], but rather a condition governing the division of the produce between the landowner and the sharecropper,

and therefore,

when he enters,

when the sharecropper now enters to sow,

for less

than

this is what he enters for,

meaning: he is entering it now with the intention of taking less than the other sharecroppers, by the amount of the seed that the landowner gave him, while the landowner takes, in addition to his share, the seed that he gave the sharecropper.

In the locale

in the place

of the tanna of the baraita,

it was customary that

the landowners,

the owner of the field, was the one who

supplied the seed,

and this landowner, whose land was of superior quality, deviated from the city’s custom and stipulated with the sharecropper that he would provide the seed. Therefore, the tanna of the baraita distinguishes:

if he has not entered

yet, and stipulated this with him, it is permitted, because

he can remove him,

as the landowner can remove him [if the sharecropper has no seed]. If so,

when he enters

the sharecropper,

for less than this is what he enters for

he entered with this understanding, and this is not a loan but a condition.

But

if he has entered

the sharecropper entered with the understanding that, according to the local custom, the landowner supplies the seed, and afterward the landowner stipulated this with him, and the sharecropper agreed [because the landowner had provided it, and so on],

since he cannot remove him,

as, after he has entered, the landowner can no longer remove him now, this is a loan of a se’a for a se’a,

and it is forbidden.

The Sages taught: A person may say to his fellow: