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Bava Metzia 62
BAVA METZIA 62 (10 Shevat) - Dedicated by Hagaon Rav Yosef Pearlman of
London, England, in memory of his father in law, Harav Yeshayah ben Rav
David Chaim Goldberg Z"L, who passed away on 10 Shevat 5738.
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1) [line 1] AHADAR LEI KI HEICHI D'NEICHEI [BA'HADACH] - give it (the interest
payment) back to him so that he may live with you
2) [line 4] KITON SHEL MAYIM - a flask of water
3) [line 15] DAVAR HA'MESUYAM - a specific object, an object that is identifiable
4) [line 17] "V'NASI V'AMCHA LO SA'OR" - "A leader of your people do not curse."
(Shemos 22:27)
5) [line 18] B'OSEH MA'ASEH AMCHA - one who is acting in the ways of your people
(i.e. he is doing Mitzvos and is not a transgressor)
6) [line 21] MAI BA'I GABEI - what is it doing in his possession?
7) [line 28] POTRIN ES HA'MALVEH V'ES HE'AREV - they exempt the lender and the
guarantor [from receiving Malkus (and, according to Rashi, from even transgressing a
Lav)]
8) [line 33] SHTAR HA'OMED LIGAVOS K'GAVUY DAMI - a contract that is ready to be
collected is considered to have already been collected
9) [line 37] SUMA MILSA HI - the stipulation [that interest must be paid on a loan]
is itself something (i.e. it is itself a transgression)
10) [line 42] KOL SHE'ILU B'DINEIHEM MOTZI'IM MOTZI'IM MI'LOVEH LA'MALVEH - any type
[of loan with interest] which, in their courts (of Nochrim), they forcefully take
from the borrower and give to the lender
11) [line 46] SE'AH B'SE'AH (RIBIS: SE'AH B'SE'AH)
(a) It is forbidden to lend money with interest (Shemos 22:24, Vayikra 25:36, Devarim
23:20). Even if interest is charged conditionally, and it is eventually not
collected, the transaction is prohibited mid'Oraisa according to some Tana'im. It is
also forbidden to take money in order to allow the borrower more time to complete the
payment of the loan. (Such payment is known as "Agar Natar.")
(b) The Torah forbids lending with interest only if the rate or amount of interest
was fixed at the time that the loan was made. This is called Ribis Ketzutzah. If
interest was paid but the amount paid was not fixed at the time of the loan, or if a
higher price was paid in a *sale* in order that the seller should allow the buyer
more time to complete his payment for the purchase, it is called Avak Ribis or Ribis
d'Rabanan. In addition to these, certain payments that are not actually Ribis
mid'Oraisa or mid'Rabanan were prohibited because they have similarities to Ribis.
Chazal refer to this as "Ha'aramas Ribis."
(c) One case of Ribis d'Rabanan is known as Se'ah b'Se'ah. This refers to a person
who receives a Se'ah (or any other amount) of produce (or any other commodity) and
agrees to pay back the same amount of produce at a future date, even if the value of
the produce increases in the interim. Paying back the produce at the higher rate is
considered Ribis, since the lender is receiving in return for his loan produced
valued at more than the produce that he lent. However, since this is only Ribis
d'Rabanan, the Rabanan permitted such an exchange when, at the time of the loan, the
recipient of the loan has enough produce at home to pay back the loan, even if the
produce is inaccessible to him at the time of the loan.
12) [line 50] MASHKANTA B'LO NACHYASA - collateralized land without diminution. This
refers to a case in which the borrower gave land to the lender as collateral, and the
lender eats the fruit of the land without making any arrangement to deduct the value
of the fruit (or even a symbolic value) from the amount the borrower owes him. Since
the lender is receiving in return more than the money he gave for the loan, this is
considered Ribis.
62b---------------------------------------62b
13) [line 8] RIBIS MUKDEMES / RIBIS ME'UCHERES
(a) Giving a gift to a prospective lender before the loan is transacted is called
"Ribis Mukdemes" ("advance interest") and is prohibited mid'Rabanan.
(b) Giving a gift to a lender (as a favor for extending the loan) some time after the
loan was given and repaid is called "Ribis Me'ucheres" ("delayed Ribis") and is
prohibited mid'Rabanan.
14) [line 11] EIN POSKIN AL HA'PEIROS AD SHE'YETZEI HA'SHA'AR - A futures contract
may not be made until a market price has been established.
(a) Poskin Al ha'Peiros refers to a futures contract, in which a buyer pays for a set
amount of produce for delivery at a later date. If the market price of the produce
rises before that date, when the seller delivers the produce to the buyer (in the
amount that he bought at the earlier, lower price) it will appear that he is giving
extra produce in return for having the use of the buyer's money until the produce was
delivered. The Mishnah (60b) rules that this is prohibited mid'Rabanan because it is
like Ribis (Avak Ribis).
(b) Under certain conditions, though, such a futures contract is permitted.
1. "YESH LO" - When the seller is presently in possession of the commodity which the
buyer wants to receive at a later date, the sale is permitted. It is considered as
though the produce of the seller has already been purchased by the buyer, and the
seller is simply watching the produce for the buyer until the date of delivery. If
the produce rises in value, it is considered to have risen in value while in the
buyer's possession. RASHI (62a DH Yesh Lo) explains that the sale is considered to be
consummated because as soon as the seller receives payment for produce that is in his
possession, the Rabbinical curse of "Mi she'Para" (see Background to 44:9) prevents
the buyer and seller from retracting from the sale. (Legally, of course, the produce
does not formally belong to the buyer until he does a proper act of Kinyan, such as
Meshichah. Nevertheless, since the prohibition involved in this transaction is only
Ribis mid'Rabanan, the Rabanan did not apply the prohibition in a case where Mi she'Para has "guaranteed" the sale, RASHI 72b DH Posek Imo.) (Even this type
of exchange is prohibited according to the Beraisa cited in our Sugya. However, the
Gemara later (63a) concludes that this exchange is permitted, as Rebbi Oshaya's
Beraisa rules.)
2. "YATZA HA'SHA'AR" - The Mishnah (72b) cited in our Gemara refers to a second
manner in which such a sale is permitted. A futures contract is permitted when the
market price for the produce that is being sold has already been established (even if
the seller is not in possession of the produce at the time of the sale). The reason
for this is because once a price for the produce has been determined in the market,
the seller could easily purchase (with the money the buyer gave him) the amount of
produce that he agreed to supply to the buyer, so that he will not lose money if the
price rises before the time of delivery (RASHI 62b DH Yesh la'Zeh; alternatively,
TOSFOS (61b DH Af Al Pi) explains that the sale is considered to be consummated
because as soon as the seller receives payment for produce that has a set price in
the market, the Rabbinical curse of "Mi she'Para" (see Background to 44:9) prevents
the buyer and seller from retracting from the sale -- see Shach and Sema in YD 175:1). This is only permitted if the buyer actually delivers payment for the produce
at the time that the futures contract is agreed upon (see next entry).
15) [line 13] B'VA LA'CHOV BI'DEMEIHEN - when the buyer uses the *value* [of the
wheat that is owed to him] towards the purchase of a futures contract
(a) Normally, a futures contract -- in which a buyer pays for a set amount of
produce for delivery at a later date -- is prohibited because of Ribis (see previous
entry, (a)). However, if the market price for the produce that is being sold has
already been established, such an exchange is permitted even if the seller is not in
possession of the produce at the time of the sale. The reason for this is because
once a price for the produce has been determined in the market, the seller could
easily purchase (with the money the buyer gave him) the amount of produce that the he
agreed to supply to the buyer, so that he will not lose money if the price rises
before the time of delivery (ibid., (c)).
(b) However, the law differs in the following case. A borrower owes money to a
lender, and the lender offers to forego the loan in return for a purchase of the
borrower's goods that he will deliver at a later date. If the borrower, who is now
the seller, has no produce at that moment, the transaction is prohibited because of
Ribis. Since he is not receiving actual money at that moment, he does not have the
option of going out and buying produce in the market in order to give it to the buyer
at a later date, because perhaps he does not have cash.
(c) For example, a buyer gives money to a seller in order to purchase wheat in a
futures contract, and later the buyer requests that the seller give him the wheat
that he bought, because he (the buyer) wants to sell the wheat and buy wine with the
proceeds. The seller, though, has no wheat at that moment to give him. Instead, he
offers to accept as payment (in place of the wheat) wine which will be delivered only
at a *later date*. If the seller is not in possession of wine at that moment, he may
not make the value of wheat that he owes into a debt of wine, even if the market
price for wine has already been established. Since he is not receiving any money at
that moment (for he received the money originally, when the buyer paid for the
wheat), we cannot assume that he could simply buy wine from the market now in order
to give it to the buyer at a later date, because perhaps he does not have cash.
16) [line 14] HAYAH NOSHEH B'CHAVEIRO MANEH - he was owed a Maneh (100 Dinar) by his friend
17) [line 18] VA'ANI A'ALEH LECHA KOL SHNEIM ASAR CHODESH - and I will bring up for
you [a supply of wheat] every twelve months
18) [line 19] LAV K'ISARO HA'BA L'YADO DAMI - this is not considered a case in which
money (lit. an Isar coin) came into his hand (and thus the arrangement is considered
a loan with Ribis, and not a sale)
19) [line 22] KED'TANI RAV SAFRA B'RIBIS D'VEI REBBI CHIYA - as Rav Safra taught in
the Beraisos of the academy of Rebbi Chiya that discuss the laws of Ribis
20) [line 24] HA'ARAMAS RIBIS - deceptive Ribis. Certain payments that are not
actually Ribis mid'Oraisa or mid'Rabanan were prohibited because they have
similarities to Ribis. Chazal refer to this as "Ha'aramas Ribis" in our Sugya.
21) [line 33] CHAMRA - wine
22) [line 29] KEGON D'AMAR HALVEINI SHELOSHIM DINERIM - [the Mishnah is discussing a
case] such as where he (a borrower) said (to a lender), "Lend me 30 Dinars." (He did
not have 30 Dinars to lend him, but he lent him instead 30 Dinars worth of wheat. The
lender then re-purchased that wheat from the borrower for only 25 Dinars. The
borrower still owes the lender 30 Dinars (for the loan of wheat that he received
originally).
23a) [line 33] IY IS LEI CHAMRA LA'LOVEH... PEIRA HU DEKA'SHAKIL MINEI - if the
borrower (i.e. the one who borrowed the 30 Dinars' worth of wheat (and then sold it
at a discount to the lender), and now owes that amount of money to the lender) has
wine [worth 30 Dinars] in his possession that he is giving to the lender [as
repayment for the loan of 30 Dinars' worth of wheat], then it is permitted, because
he is merely returning produce to the lender in return for the produce that he
originally borrowed (and it does not look like he is returning 30 Dinars' worth of
produce in return for the *25* Dinars that he received when he sold the wheat back to
the lender).
b) [line 35] KEIVAN D'LEIS LEI CHAMRA, VADAI MISHKAL ZUZEI MINEI, MECHEZEI K'RIBIS
- since the borrower (i.e. the one who borrowed the 30 Dinars' worth of wheat (and
then sold it at a discount to the lender), and now owes that amount of money to the
lender) does *not* have wine, then certainly the lender is going to take money from
him [as repayment for his loan of 30 Dinars of wheat], and thus it looks like Ribis
[and is prohibited]. (Since the borrower received 25 Dinars when he sold the wheat
back to the lender, and now he is paying back his original loan of the wheat with 30
Dinars of actual money, it appears that he borrowed 25 Dinars and is repaying 30.)
24) [last line] KI SHECHIVNA, REBBI OSHAYA NAFIK LEVASI - when I die, Rebbi Oshaya
will come out [of his heavenly resting place] to [greet] me
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