MISHNAH: [A general reference to this Mishnah and the first paragraph of the Halakhah is in D. Sperber, Roman Palestine 200–400, Money and Prices, Ramat Gan 1974; Chapters XI,XIV.] Silver acquires gold but gold does not acquire silver [It is accepted in rabbinic law (in the name of R. Yannai in Halakhah 4:2, in the Babli 46b in the name of R. Joḥanan) that in Biblical law money acquires both ownership and possession though this is denied in the other Yerushalmi Tractates in the name of R. Joḥanan, (Ševi‘it 8:1 Note 15, Erubin7:11 24d l. 3). But it is universally accepted that in rabbinic practice payment only establishes a claim to ownership and possession, not a fact. This is to avoid fraudulent transactions in which the seller sells non-existent goods and then claims that they were lost, e. g., by fire, between sale and delivery when they already were owned by the buyer but not yet in his possession. On the other hand, in a barter transaction taking possession by one party automatically transfers both ownership and possession to the other party (Qiddušin 1:6). If a person loses because the other party who took money in a commercial transaction then refuses to go through with the sale and offers to refund the money, he can ask the court to publicly curse the defaulting party but he has no legal way to force completion of the sale (Mishnah 2). But if the buyer took possession of the merchandise, then the sale is completed; the seller can force payment in court and is not required to take the article back. This means that transactions involving money are considered a kind of barter in which coins always are passive but never active objects of barter. There is no doubt that gold or silver bars are merchandise, objects of trade and barter. The question is about coins. If gold coins are exchanged for silver coins and vice-versa, the question is which of the species are considered as merchandise and which as coins in the transaction. The Babli and all sources depending on it (Mishnah and Tosephta mss.) state that “Gold acquires silver but silver does not acquire gold,” the opposite of the Yerushalmi. The Halakhah states that originally, the Yerushalmi Mishnah was identical with the Babli; the change can be dated to the early Third Century. D. Sperber has argued convincingly that this is not a question of gold or silver standard since both the Roman and the Parthian, later Persian, empires actually were on a gold-and-silver standard. But the Persian empire never experienced the disastrous manipulation of silver coinage which started with Caracalla and ended with the hyper-inflation of the military anarchy, only to be brought under control by Diocletian’s currency reform. By contrast, even the worst Roman emperors did not adulterate gold coinage (if they minted gold at all.) Therefore, in Babylonia silver coin was the common vehicle of trade while gold coin was used only in very large transactions or as a vehicle for hoarding. This means that silver coin was “money” but gold coin was “merchandise” even when gold coin did not trade at an agio over the official ratio. But in the Roman empire in the period of formulation of the Mishnah (roughly 190–230) silver coins changed from dependable vehicle of commerce to objects to be disposed of as quickly as possible; silver became a merchandise relative to gold coin.] . Brass acquires silver but silver does not acquire brass [In good times, brass coins are local currency only which cannot be used at far-away places; they are tokens rather than coins. When tokens are exchanged for coins, the tokens are the merchandise. In bad times, when “silver” coins were brass coins slightly washed in a silver solution, brass coins did not exist.] . Bad coins [Coins taken out of circulation; they are not money in the legal sense.] acquire good ones but good ones do not acquire bad ones. A blank [Metal disks ready to be stamped in the mint. They are not money until stamped.] acquires a coin but a coin does not acquire a blank. Movables acquire coins but coins do not acquire movables [It is accepted in rabbinic law (in the name of R. Yannai in Halakhah 4:2, in the Babli 46b in the name of R. Joḥanan) that in Biblical law money acquires both ownership and possession though this is denied in the other Yerushalmi Tractates in the name of R. Joḥanan, (Ševi‘it 8:1 Note 15, Erubin7:11 24d l. 3). But it is universally accepted that in rabbinic practice payment only establishes a claim to ownership and possession, not a fact. This is to avoid fraudulent transactions in which the seller sells non-existent goods and then claims that they were lost, e. g., by fire, between sale and delivery when they already were owned by the buyer but not yet in his possession. On the other hand, in a barter transaction taking possession by one party automatically transfers both ownership and possession to the other party (Qiddušin 1:6). If a person loses because the other party who took money in a commercial transaction then refuses to go through with the sale and offers to refund the money, he can ask the court to publicly curse the defaulting party but he has no legal way to force completion of the sale (Mishnah 2). But if the buyer took possession of the merchandise, then the sale is completed; the seller can force payment in court and is not required to take the article back. This means that transactions involving money are considered a kind of barter in which coins always are passive but never active objects of barter. There is no doubt that gold or silver bars are merchandise, objects of trade and barter. The question is about coins. If gold coins are exchanged for silver coins and vice-versa, the question is which of the species are considered as merchandise and which as coins in the transaction. The Babli and all sources depending on it (Mishnah and Tosephta mss.) state that “Gold acquires silver but silver does not acquire gold,” the opposite of the Yerushalmi. The Halakhah states that originally, the Yerushalmi Mishnah was identical with the Babli; the change can be dated to the early Third Century. D. Sperber has argued convincingly that this is not a question of gold or silver standard since both the Roman and the Parthian, later Persian, empires actually were on a gold-and-silver standard. But the Persian empire never experienced the disastrous manipulation of silver coinage which started with Caracalla and ended with the hyper-inflation of the military anarchy, only to be brought under control by Diocletian’s currency reform. By contrast, even the worst Roman emperors did not adulterate gold coinage (if they minted gold at all.) Therefore, in Babylonia silver coin was the common vehicle of trade while gold coin was used only in very large transactions or as a vehicle for hoarding. This means that silver coin was “money” but gold coin was “merchandise” even when gold coin did not trade at an agio over the official ratio. But in the Roman empire in the period of formulation of the Mishnah (roughly 190–230) silver coins changed from dependable vehicle of commerce to objects to be disposed of as quickly as possible; silver became a merchandise relative to gold coin.] . This is the rule: all movables acquire one another [Mishnah Qiddušin 1:6.] .
HALAKHAH: “Silver acquires gold,” etc. This is a summary of the matter: Anything worth less that the other acquires the other. Rebbi Ḥiyya bar Ashi said, who stated this? Rebbi Simeon ben Rebbi [Babli 44a.] . His father told him, change your opinion and state the following: “Gold acquires silver. [The version accepted in Babylonia sees the world as it should be; not the temporary state at the beginning military anarchy in the Roman empire when the currency was manipulated.] ” He told him, I do not change my opinion since when your faculties were unimpaired, you instructed me to state: “Silver acquires gold.” The word of Rebbi implies that gold is like produce [It has the power of merchandise to transfer possession and finalize a deal.] . The Mishnah implies that silver is like produce [It has the power of merchandise to transfer possession and finalize a deal.] . [Rebbi Ḥiyya’s baraita implies that gold is like produce [Tosephta 3:13.] , but his word implies that silver is like produce, as in the following:] [Addition of E. The characterization of the Tosephta as Galilean might raise doubts as to the genuineness of the addition.] The elder Rebbi Ḥiyya’s daughter lent denars [Gold denars.] to Rav. She came and asked her father, who told her: Take from him good and full weight denars [Babli 44b. The problem here is the prohibition of taking interest, which is defined as “payment for waiting” (Babli 65a). Therefore, it is forbidden to lend merchandise on condition to receive the same amount of merchandise in return at a specified future time since in the meantime the value of the merchandise might have increased and the lender would be repaid more in monetary value than what he lent out. It is required to determine the monetary value of the articles to be lent before they are transferred. The only exceptions are (a) short term loans and (b) bridge loans where the borrower already owns the borrowed items while they are stored at another locality. If R. Ḥiyya holds that silver is merchandise, how can he allow his daughter to lend gold coin against gold coin? The Babli explicitly states that during the term of the loan, gold rose in price against silver.] . Do we learn from Rebbi Ḥiyya’s daughter [The story is irrelevant for the problem of this Halakhah since Rav states in Halakhah 5:7 (Note 135) that between close relatives the taking of interest is permitted. Rav was the student of his uncle R. Ḥiyya until he returned to Babylonia in 218; he was R. Ḥiyya’s daughter’s cousin. All we can learn is that Rav’s statement is really R. Ḥiyya’s. [S. Abramson in Sinai 89 (1981) pp. 217–218.] It is not stated whether the lender was Pazi or Martha.] ? Rebbi Idi said, also Abba, Samuel’s father, asked before Rebbi: May one lend denars against denars [Gold denars.] ? He answered him, it is permitted [The answer of a young R. Jehudah ben Rabban Simeon.] . Rebbi Jacob bar Aḥa said, also Rebbi Joḥanan and Rebbi Simeon ben Laqish both instruct: It is permitted to lend denars against denars. Qerat against qerat is permitted, lekan against lekan is forbidden [Sperber’s analysis (l. c. pp. 92–93) makes it probable that the last sentence is not R. Joḥanan’s and R. Simeon ben Laqish’s, but is the editor’s deduction from the preceding statement. He notes that qeraṭ can either be the Greek κεράτιον, a gold weight, 1/1728 libra aurei, in Dioclation’s system equal in value with the silver siliqua, 1/24 solidus, or Syriac קרטא, quarta(pars sicli), one denar. Since we are dealing with coins, the preferred meaning is that of siliqua, an honest silver coin which did not exist during R. Joḥanan’s lifetime. Lekan was proposed in Ma‘aśer Šeni 4:1, Note 22, as “small measure or weight”, i. e. local small change which in the Mishnah had been defined as merchandise when compared with silver. {The computation of R. Eliahu Fulda in Ma‘aśer Šeni 4:1, who wanted to prove that the lekan was 1/62.5 of a solidus, was already shown to be in error by H. Y. Sheftel [Encyclopedia of biblical and rabbinic coins, measures, weights, areas, and time, Berdiczew 1907 (Hebrew)]}.] .
There, we have stated: If anything is given instead of money, if one entered in possession, the other is obligated for its exchange [Cf. Note 2, Qiddušin 1:6, Note 521.] . Rebbi Joḥanan said, they stated this only about an ox for a cow, or a donkey for an ox; but heap against heap one did not acquire. Rav Jeremiah in the name of Rav: Even heaps among heaps he did acquire [Qiddušin 1:6, Note 525. If one of the parties took possession, the other party automatically obtained possession of the exchanged property.] . Rebbi Abba bar Mina in the name of Rav: One who exchanged אברוקלון against אמברוקלון did acquire [The reading of R. Ḥananel and ‘Arukh is: One who exchanged אמבורקלין against אמבורקלין did acquire. Arukh explains as “bundles of sheets” which in Italian (dialect of Rome) would be called ברוקלי (variants ברוקלון, ברוקלו) or (תרצילו, טורצלי, תרוצולו, תורצלו) .טרצילו. The second word is identified by Krauss in Additamenta ad librum Aruch Completum as turzello. M. Sachs (J. Levy, S. Krauss) identifies אמבורוקלון as Latin involucrum “wrapper; covering; envelope”, from involvo “to wrap up, roll up.”. Turzello, from Latin tortus “a twisting, winding”, from torqueo “to twist, to turn” is an acceptable translation of involucrum. In this interpretation, the statement implies that the laws of barter also apply if something is exchanged against an object of the same kind. It is difficult to understand why this should not be so. H. Y. D. Azulay, in his פתח עיניים, quotes from the ms. of R. Menaḥem di Lonzano בדיקלין באמה בדיקלין. E: אמלוקנין באמבוליקין. However, Maimonides connects the statement with the later Mishnaiot whose subject is the cancellation of a sale because of overcharging by the seller or underpaying by the buyer. He reads the statement as meaning that a barter is concluded the moment one of the parties takes possession of the object coming to him, and no legal recourse exists for the party realizing that he made a bad bargain. He must hold that אברוקלון and אמבורוקלון are two different objects. It is possible that he reads the two words as “needle” and “silk cloth” since he writes (Mekhirah 13:1): “One who barters vessels agains vessels or animals against animals, even a needle for silk cloth or a kid goat for a horse, has no claim of overcharging since he might prefer a needle to silk cloth.” The horse is specifically exempt from the rules of overcharging in Halakhah 4, Note 132. (Ravad objects and thinks that Maimonides misunderstood the Yerushalmi.) The commentary Migdal ‘Oz (R. Šem-Ṭob Gabbai) readsאמבורקלין אמטרקלין, but gives no explanation of the words beyond noting that these clearly denote different objects.] .
[This text is an outline of the detailed argument in Qiddušin 1:6, Notes 532–542.] Rebbi Ze‘ira [In Qiddušin, R. Abba. Since R. Ze‘ira objects to the statement in both texts, and the Qiddušin text is reproduced in the next paragraph, the attribution here is incorrect.] , Rav Jehudah in the name of Samuel: One had a cow and one a donkey. They exchanged one for the other. The donkey’s owner took the cow. When the cow’s owner came to take the donkey and found that it had a fracture, the donkey’s owner had to bring proof that his donkey was well at the moment he took the cow. Anybody who does not agree to this does not know anything about civil law. Rebbi Ze‘ira said, I do not agree, I do not know anything about civil law. There, we have stated [Mishnah Ketubot 7:9. After the definitive wedding, the husband discovers that his bride has a bodily defect and divorces her for that. He does not want to pay her ketubah. A prima facie argument is that the defect happened where it was discovered. Therefore, if the bride was still in her father’s house, the father has to prove that at the time of the preliminary wedding his daughter was without blemish. If the bride now is in her husband’s house, the husband has to prove that she was already blemished at the preliminary wedding when he agreed to be financially responsible for her. Similarly, the rule is that if the donkey was in his first owner’s stable when the buyer found it with a broken leg that the stable’s owner has to prove that it was healthy at the time he took possession of the cow.] : “If she had bodily defects, as long as she was in her father’s house,” etc. Rebbi Ḥuna, Rebbi Phineas, and Rebbi Ḥizqiah went to visit Rebbi Yose to sharpen wits. They quoted the statement [Mishnah Ketubot 7:9. After the definitive wedding, the husband discovers that his bride has a bodily defect and divorces her for that. He does not want to pay her ketubah. A prima facie argument is that the defect happened where it was discovered. Therefore, if the bride was still in her father’s house, the father has to prove that at the time of the preliminary wedding his daughter was without blemish. If the bride now is in her husband’s house, the husband has to prove that she was already blemished at the preliminary wedding when he agreed to be financially responsible for her. Similarly, the rule is that if the donkey was in his first owner’s stable when the buyer found it with a broken leg that the stable’s owner has to prove that it was healthy at the time he took possession of the cow.] and he told them, look at the next statement: “Once she entered the husband’s domain, the husband has to prove.” Would not the father have to prove? But you are saying that the husband has to prove; here also, the owner has to prove.
[This paragraph is similar to one in Qiddušin 1:6, Notes 543–549. The initial sentence is out of place in this paragraph; it should be the start of the preceding one, cf. Note 21. The missing starting sentence would indicate that the parties to a trade determined the monetary value of the animals traded. No money actually changed hands because they agreed that the prices of the items exchanged were equal. The question now arises whether the transaction has to be classified as sell-and-buy, in which case each party has to take possession by an act of acquisition, or as barter, when the taking of possession of one party automatically transfers possession also to the other party.] (Rebbi Abba, Rav Jehudah in the name of Samuel: One had a cow and one a donkey. They exchanged them.) The donkey’s owner took the cow; he did not acquire it [Obviously, this statement does not fit the preceding sentence; it refers to the statement of R. Abba, Rav Hamnuna, Rav Ada bar Aḥawa in the name of Rav (Qiddušin 1:6, 60d l. 75, Note 543): A cow was originally sold for a fixed sum. Then the buyer had second thoughts and offered the seller a donkey instead of money. If now they exchange the animals, it is not barter. Since the first to take the other’s animal takes something for which he did not pay, and the sale was not a credit sale, he cannot have acquired the animal until the other party also takes his. The only problem left open is whether the second party also has to execute a conscious act of acquisition; this is required by R. Yose but waved by R. Abba.] . Would the donkey be acquired? Rebbi Abba said, he acquired. Rebby Yasa said, he did not acquire. Rebbi Mana said, there is a situation in which Rebbi Yose would agree: A man said to another, I want to sell my cow. He asked him, for how much? He answered, for eight denars. He went and gave him a draft on his banker [For the unexplained word טרפוניטיה, Migdal Oz (loc. cit. Note 19) reads טרפיזטא τραπεζίτης “banker”, the Greek equivalent of Mishnaic שׁוּלְחָנִי. In Qiddušin it simply says, “he gave him a draft for money, פריטייא”; the last term might refer to Greek πρατήριον, τό “place for selling, market” (E. G.)] . In the morning he went and found him open for business. He asked him, what are you doing here? He answered, I want to collect the denars in the draft I have on you. He asked him, what do you want to buy with them? He answered, a donkey. He told him, your donkey is with me. If either of them took possession, the other did not acquire but each animal separately has to be taken in possession [Since three people are involved, the seller of the cow, the buyer of the cow, and the banker as seller of the donkey, this is a sale and a separate buy, not a barter. Two separate acts of acquisition are unquestionably required.] .
MISHNAH: How is this? If he collected from him the produce but did not give him the money [He is in possession even though he is not yet the owner. The transaction was concluded. If the buyer does not pay, the seller has a valid case in court for collection of a debt.] , he cannot retract. If he gave the money but did not collect the produce, he can retract [Since Mishnah 1 implies that handing over money is not an act of taking possession, both parties can still annul the contract. The seller can return the money and the buyer has no case for breach of contract; the buyer can ask for the money back and refuse to take delivery.] , but they said: He Who exacted retribution from the people of the Flood will in future collect from him who does not keep his word [The injured party can go to court and ask for official moral condemnation of the party who reneged on the contract at the last minute.] . Rebbi Simeon said, the one who holds the money is advantaged [The moment the buyer paid, he lost his right to renege on the contract. Only the seller retains the option of returning the money and not delivering the goods if the contract is still open.] .
HALAKHAH: “How is this? If he collected the produce from him,” etc. Rebbi Aḥa said, it is written: “For the earth was filled with oppression because of them. [Gen. 6:13. Gen. rabba 31(5), in the name of R. Ḥanina.] ” What was their oppression? If a person came carrying a box full of lupines they all asembled and each one was taking less than the worth of a peruṭah, a case which cannot be brought before the judges [The farmer in the end was left with nothing but so many thieves took only a minute amount that he did not have a case against anybody.] . Rebbi Ḥiyya bar Abba said, “much, much” [Gen. 6:5 about the generation of the flood; Gen. 18:20 about Sodom and Gomorrha, identical expressions. Gen. rabba 28(3); R. Berekhiah in the name of R. Joḥanan.] . The acts of these were identical to the acts of those.
Rebbi Ḥanina said, practice follows Rebbi Simeon [In the Babli, R. Joḥanan rules following R. Simeon (48b) but Rav Ḥisda explicitly disagrees (49b).] , but we do not say this in all cases [As explained later in this paragraph, the ruling does not apply to partial payments in all its forms.] . Rav Jeremiah in the name of Rav: A case came before Rebbi and he instructed following Rebbi Simeon. [A completely different version of this story is in the Babli, 48b; it is a contamination of this story with the next one.] Rebbi Ḥiyya bar Joseph gave a denar for salt. That one reneged [The seller refused to fill the contract and gave the money back to him.] . He said, does he [R. Ḥiyya bar Joseph told the seller to exert moral pressure on him even if he could not bring the case to court because of R. Ḥanina’s ruling.] not know that already a sickle is put on the thigh of that man, “He Who exacted retribution from the people of the Flood will in the future collect from him who does not keep his word”? [A different version of this story is in Qiddušin 2:1, Notes 101–107.] A person paid for raw silk [Greek μέταξα.] . He reneged [The seller refused to fill the contract and gave the money back to him.] . The case came before Rebbi Ḥiyya bar Joseph and Rebbi Joḥanan. Rebbi Ḥiyya bar Joseph said, either he delivers for the amount of the pledge [Since the money was given as surety, not as payment, R. Simeon’s rule cannot be applied to the contract. But he holds that a contract can be enforced in parts. In the Babli, 49a, this is Rav’s position.] or one may turn him over to “Him Who exacted retribution.”. Rebbi Joḥanan said, either he delivers the entire contract or one may turn him over to “Him Who exacted retribution. [A partial payment validates the entire deal; cf. Qiddušin 2:1, Note 106.] ” Rebbi La said, it was a case of a pledge; Rebbi Ze‘ira said, he had given him partial payment [There is no difference between the two situations as regards R. Simeon’s rule.] . Rebbi Ḥiyya bar Joseph agrees with Rebbi Joḥanan in a sale which is not usually split, such as of a cow or a stole.
Rebbi Jacob bar Idi, Rebbi Abbahu in the name of Rebbi Joḥanan: A ring does not have the status of a pledge [Since it has to be returned as is, it is only a reminder without legal consequences. Cf. Ševi‘t 10:9, Note 131; Babli 48b.] . Nobody dealing in words onlymay one deliver to “Him Who exacted retribution” [Sevi‘it 10:9, Notes 129–130; Babli 49a, Tosephta 3:14. As long as there was no action of acquisition, the person who goes back on his word can be considered untrustworthy but is not subject to judicial censure.] . Rebbi Jacob bar Zavdi, Rebbi Abbahu in the name of Rebbi Joḥanan: If one promised a gift to another and wanted to renege on it, he may renege. [Sevi‘it 10:9, Notes 133–142; Ma‘aśer Šeni 4:7 Note 129 Babli 49a.] [Rebbi Jacob bar Zavdi asked before Rebbi Abbahu: Is that “true no, true yes [Lev. 19:36.] ”?] [Text added from E. Since the answer is given in L, the question must have been in the original text. For the duty to be honest in monetary matters as a biblical command, cf. Ševi‘it 10:9, Note 134; Giṭṭin 6:1, Note 39.] He said, at the moment when he said it, he had to speak with full deliberation [The obligation to be honest does not imply a prohibition to change one’s mind. In the Giṭṭin text, it is R. Jacob bar Zavdi who gives the answer to R. Yose [Babli 49a, Bekhorot 13b; Sifra Bekhorot Pereq 8(7)].] . After that, if he changes his mind, he cannot change it, that is, if [the recipient] is poor [Giving alms is not a gift to the poor but a gift to God and as such is final upon being promised (Mishnah Qiddušin 1:6. Kaftor waPeraḥ Chapter 44 reads: “If somebody promised to give a gift and wants to change his mind, he may change his mind. But if he said, I am speaking with full deliberation, he cannot change his mind. That is, for a rich recipient. But for a poor recipient it becomes a vow.” This seems to be more of a paraphrase than an exact quote.] . But for a rich person, is that a vow? Rav commanded his servant: If I tell you to give a gift to a person, if he is poor, give it to him immediately. But if he is rich, take counsel with me a second time [This contradicts the statement in Ševi‘t 10:9 that Rav never changed his mind once he had promised a gift.] .
Rebbi Joḥanan gave denars to a relative of his for oil. The oil rose in price [And the relative wanted to annul the contract.] . He went and asked Rebbi Yannai who told him, by Torah standards money acquires, but why did they say it does not acquire? Lest [the seller] tell him, your wheat was burned in the storage room [Really ““the upper storey”, usually used as storage area in farmhouses. Cf. Babli 46b, 47a, 47b, Erubin81b, 7:1 (24d l. 3); Ḥulin 83a; Qiddušin26a,28b; Ševi‘it 8:1 (38a l. 2) Note 15. The opinion attributed here to R. Yannai is that of R. Joḥanan in the Babli, of R. Simeon ben Laqish in the Yerushalmi Erubin and Ševi‘it.] . Rebbi Samuel ben Sosartai in the name of Rebbi Abbahu: If [the seller] told him, your wheat was burned in the storage room, he is trustworthy [The testimony must be accepted by the court unless shown to be perjured by two independent witnesses.] . Rebbi Isaac objected: Where do we hold? If his money had acquired for him, his property would have been burned [Then the statement of R. Samuel ben Sosartai would have made sense. But since rabbinically money cannot acquire, if the seller claims that the wheat was burned after he had received payment, his claim is irrelevant since the wheat was not yet delievered. The seller has to provide the buyer with other grain irrespective of what happened.] . But if his money had not acquired for him, the other’s property was burned.
Rebbi Simon in the name of Rebbi Joshua ben Levi: A person who gave ten denars to another and told him, I have to get from you 100 (denars) [Denars is the reading of the Leiden ms. and the editio princeps; but it is impossible. Barrels is the reading of E, supported by the quote in Sefer Ha‘iṭṭur I, p. 22 (Note 92): גרבין חמרא Wine barrels, copied in Mordekhai Bava meṣi‘a #449 as גריוי 10. gold denars would be an appropriate price for 100 clay barrels of wine.] [barrels] from that house, is permitted; from that vineyard, is prohibited [The “house” is the wine cellar. Since the object of sale already exists in the possession of the seller, the transaction is not a forbidden trade to circumvent the prohibition of interest. But a trade on futures of wine from yet ungrown grapes is impossible, cf. Ketubot 5:5, Note 113.] . What is the difference between house and vineyard? A house is not expected to collapse, a vineyard occasionally collapses [Occasionally there is no harvest.] . Rebbi Yose said, you understand from this that if a person gave ten denars to another and told him, I have to get 100 barrels from you, once he [In the interpretation of Sefer Ha‘iṭṭur (accepted by Mordekhai, loc. cit.), R. Yose states that for wine, already stored in barrels, the argument of R. Yannai does not apply and the sale was concluded by the seller accepting the money. This argument is justly rejected by R. Joseph Caro (Bet Yosef Ḥošen Mišpaṭ 199,2) as against talmudic principles. In addition, while wine in clay barrels stored in a stone cellar is not likely to be burned, it easily may be lost by breakage of the barrels. Therefore, it seems that this paragraph is a direct continuation of the previous one and R. Ḥanina’s ruling that practice follows R. Simeon is qualified further in that the seller has lost his right of refusal once he used the money in his business. The biblical expression שָׁלַח יָד בְּ (Ex.22:7) means “illegally to take” (for one’s own use).] used them he is required to deliver the merchandise.
Rebbi Simeon ben Laqish said, “or buying from your neighbor’s hand” [Lev. 25:14, containing the prohibition of overcharging or underpaying in commercial transactions.] , from you neighbor’s hand you need an act of acquisition; you do not need an act of acquisition from the Gentile’s hand [The principle that in biblical law payment transfers not only ownership but also possession is restricted to transactions involving Gentiles; for transactions between Jews the transfer needs an actual “taking” from the prior owner’s hand; Babli 47b.] . In Rebbi Simeon ben Laqish’s opinion, why does one deliver a person to “Him Who exacted retribution” [Since a deal between Jews is not valid in biblical law without actual transfer, why should the court be involved in a dispute regarding such a deal? E reads here: why does one not deliver a person to “Him Who …”?] ? Rebbi Yose ben Rebbi Abun said, it follows the Tanna who stated: “Nobody dealing in words only may one deliver to “Him Who exacted retribution” [Sevi‘it 10:9, Notes 129–130; Babli 49a, Tosephta 3:14. As long as there was no action of acquisition, the person who goes back on his word can be considered untrustworthy but is not subject to judicial censure.] [This Tanna holds that taking the money is a “transfer from hand to hand”, which gives the transaction biblical status. The only case which the court will refuse to hear is one where no concrete action has yet taken place.] .
MISHNAH: Cheating [Overcharging (or underpaying) the current rate, forbidden in Lev.25:14. Overcharges of less than 16 2/3% are not recoverable in court.] is four obols per tetradrachma of 24 obols [A drachma (in the Roman Empire identified with the denar) is 6 obols.] , one sixth of the sale price. Until when may one return [the merchandise]? Until one can show it to a trader [A market maker in that commodity.] or a relative. Rebbi Tarphon instructed in Lydda that cheating is eight obols per tetradrachma, a third of the sale price, and the traders of Lydda were rejoicing. He told them, one may return [the merchandise] the entire day; they said, let Rebbi Tarphon keep our place quiet; they returned to the words of the Sages. Just as a private person can be cheated, so a trader can be cheated. Rebbi Jehudah says, a trader has no claim of being cheated [Since he has to know what the going rate is for what he sells. This implies that for R. Jehudah a trader is permitted to have a sale with reductions of at least 16 2/3% of the going rate; the Sages would only permit a sale with reductions <16 2/3%.] . The person overcharged has the advantage; if he so desires, he says, give me my money back [The buyer returns the article and gets his money back.] , or give me back by what you overcharged me [He keeps the article.] .
HALAKHAH: “Cheating is four obols,” etc. Rav said, this is the rate [Since the Mishnah ties the definition of overcharging to the money changing hands: the sixth has to be computed as one sixth of the sale price both for overcharging or for underpaying. If an article worth 6 was sold for 7 the overcharge was 1/7. If it was sold for 5, the undercharge was 20% and the sale can be annulled on the demand of the seller. In the Babli, 49b, this opinion is attributed to Samuel; Rav holds that the basis of computation always is the current market price.] ; Rebbi Joḥanan said, it is not the rate [The larger of sale or market price is the base of computation.] . Rav said, if somebody trades on condition that the rules of cheating not apply to him, the rules of cheating do apply to him [Biblical prohibitions cannot be abolished by private conventions; Mishnah Ketubot 9:1.] . Rebbi Levi [R. Levi was the preacher in R. Joḥanan’s academy. His statement is attributed in the Babli 55a to Levi (bar Sisi), the student of Rebbi. Since here R. Levi is mentioned together with his contemporary R. Joḥanan, and in the Babli Levi bar Sisi together with his contemporary Rav Cahana, there is a genuine discrepancy in the traditions of both Talmudim.] stated: Cheating applies to a peruṭah, cheating can be by a peruṭah [The rules of cheating apply even to transactions whose total value does not add up to the smallest silver coin, the obol. (In Hasmonean times, when the obol really was a silver coin, it was 24 peruṭot.) In the Babli, Rav Cahana denies the applicability. E reads וההודאה שוה פרוטה “the confession of a peruṭah’s worth” instead of וההונאה פרוטה. This is an echo of Mishnah 6 and Šebuot 6:1 and is out of place here.] . But what is the status of cheating [If the overcharge was less than 16 2/3%, the buyer has no recourse. If it is more than 16 2/3%, he can annul the sale. What if it is exactly 16 2/3%? The Mishnah gives the injured party the choice of either receiving the amount of the overcharge or returning the object.] ? It was stated: The item was acquired, he returns the overcharge, the words of Rebbi Jehudah the Prince [Rebbi’s grandson, contemporary of R. Joḥanan.] ; Rebbi Joḥanan said, the sale is annulled.
Cahana asked before Rav: If the seller is being cheated, he is cheated up to a fifth; if the buyer is being cheated, he is cheated up to a sixth [According to Rav, if an article worth 6 is sold for 7, the buyer can invoke the statute against cheating because he was overcharged 16 2/3%. But the seller can claim an additional payment if he was only paid 5, when he really was underpaid 20%, which should lead to an outright cancellation of the transaction.] ! He answered him, it and the amount of cheating add up to a sixth [The objection really is well taken; for the buyer the percentage is computed from below, for the seller from above.] . If he sold him what was worth five for six, can [the seller] not say, you were taken in for a denar, take your denar! [Since the customer was overcharged by 20%, he can automatically annul the sale. Why can the seller not pay him the amount overcharged and force the customer to keep the merchandise?] Rebbi Ze‘ira said, the other can say to him, it is not to my honor that people say, this one was made a laughing stock. Some say, he can say to him, it is not to my honor to wear a garment of five denars. Rebbi Joḥanan, Rebbi Eleazar and Rebbi Hoshaia say, what is that Tanna’s reason [The one who says that the higher of market or sale price is the basis of computation.] ? “I know that my merchandise was worth only five denars, but because he needed it, I gave it to him for six. Take yours and return mine.”
If he sold him what was worth five for six; [the buyer] did not have time to ask around until it appreciated to be worth seven. Rebbi Jacob bar Idi, Rebbi Abbahu in the name of Rebbi Joḥanan: Since the sale is annulled for one [The buyer originally was overcharged by 20%, which gives him the right to annul the transaction, even though at the moment he could realize a 16 2/3% gain.] , it also is annulled for the other [The seller can take back the merchandise and sell it again at a higher price.] . There, we have stated [Mishnah Bava batra 5:8.] : “Four situations in sales. If he sold him high quality wheat and it turned out to be low quality, the buyer can annul the transaction. Low quality and it turned out to be high quality, the seller can annul the transaction.” [Therefore, the buyer cannot annul the transaction.] [Text of E, missing in L; but it is clearly understood that the Mishnah Bava batra was quoted to contradict R. Joḥanan’s statement that the seller can annul the sale because the buyer could.] Rebbi Yose ben Rebbi Abun said, it follows this Tanna: “Nobody dealing in words only may one deliver to “Him Who exacted retribution” [Sevi‘it 10:9, Notes 129–130; Babli 49a, Tosephta 3:14. As long as there was no action of acquisition, the person who goes back on his word can be considered untrustworthy but is not subject to judicial censure.] [Even according to R. Joḥanan, the seller can retract his committment to a sale only as long as no money has changed hands; otherwise the buyer could haul him into court publicly to be cursed. The Babli, Bava batra 83b/84a flatly rejects the possibility that a dishonest trader enjoy a privilege from which the honest trader was barred.] .
MISHNAH: By how much could a tertradrachma be deficient without it being cheating? Rebbi Meïr says four assarii, one assarius per denar. Rebbi Jehudah says four dupondii, a dupondius per denar. Rebbi Simeon says eight dupondii, two dupondii per denar [1 denarius argenteus = 12 dupondii = 24 assarii. R. Simeon holds that the standards for coins are the universal standards for everything else. R. Jehudah admits a tolerance of 8.33%, R. Meïr only 4.166%.] .
HALAKHAH: “By how much could a tertradrachma be deficient,” etc. It was stated: [Similar texts in Tosephta 3:17–19, Babli 52a.] “More than that [If the coin is below the tolerances indicated in the Mishnah.] he spends it for its worth, a tetradrachma up to a šeqel [A Mishnaic šeqel is two denars, half a tetradrachma (a Tyrian šeqel). The quarter šeqel then is half a denar.] , a denar up to a quarter [šeqel]. If it is less than this even by an assarius, he may not spend it. If it was circulating as a blank for a tetradrachma or as a šeqel coin, as a blank for a šeqel or as a tetradrachma coin, he only has the shape of the coin [Whether it can be used or not depends on the shape of the coin which it pretends to be.] . He should give it neither to a person who condemns property [חרם is the receiver of the inheritance tax, (הרג) חרג the receiver of property tax; cf. Nedarim 3:4–5, Note 97.] nor to a tax assessor [חרם is the receiver of the inheritance tax, (הרג) חרג the receiver of property tax; cf. Nedarim 3:4–5, Note 97.] since they defraud people, but he drills a hole into it and hangs it on his son’s neck. When has this been said? About tetradrachmas and denars. But gold denars and silver coins [Honest silver coin which can be traded for its silver content.] one may spend according to their value [These coins have to be weighed before being used as currency.] . Just as one spends it for profane things one may spend it for Second Tithe provided one does not plan it [In Temple times, Second Tithe produce was redeemed for coin which was spent on food in Jerusalem, to be eaten there in purity. Since the redemption is a transaction between a person and himself, occasionally deficient coins may be used since he knows the deficiency. But one may not collect deficient coins during the year and then use the collected coins for redemption (Ma‘aśer Šeni 2:7, Note 96).] .”
MISHNAH: How much time does one have to return it [The defective coin which fails the standards of Mishnah 4.] ? In walled cities [Greek χάραξ, χάρακος “palisade”.] until one can show it to a banker, in villages until Sabbath eve. If he recognizes it, he should take it back even after twelve months, but he has only a complaint against him [If the person who handed out the defective coin recognizes that it is the coin given out illegally, he has a moral duty to take it back even when the legal period in which he can be forced to take it back has expired. If he refuses, the injured party has the right to complain (i. e., tell about the case to other people) but has no recourse in court.] . He may use it for Second Tithe without hesitation since it is only miserly [In Temple times, Second Tithe produce was redeemed for coin which was spent on food in Jerusalem, to be eaten there in purity. Since the redemption is a transaction between a person and himself, occasionally deficient coins may be used since he knows the deficiency. But one may not collect deficient coins during the year and then use the collected coins for redemption (Ma‘aśer Šeni 2:7, Note 96).] ’ [After the destruction of the Temple and the disappearence of the ashes of the red cow (cf. Berakhot 1:1, Note 3) when food can no longer be eaten in purity, the coin has to be destroyed. For that purpose it even is preferable to use defective coins.] . Cheating is by four oboli [Mishnah 3.] , claim is about two oboli, confession is about one peruṭah [The court will not impose a judicial oath unless it be a case in which the claim is at least 2 oboli and the defendant admits to owing at least 1 peruṭah:, Mishnah Šebuot 6:1.] . There are five peruṭot [The peruṭah appears as minimal standard in five legal categories.] : Confession is about one peruṭah [The court will not impose a judicial oath unless it be a case in which the claim is at least 2 oboli and the defendant admits to owing at least 1 peruṭah:, Mishnah Šebuot 6:1.] ; a woman is preliminarily married by one peruṭah’s worth [Mishnah Qiddušin 1:1.] ; one who used one peruṭah’s worth of Temple property committed larceny [He has to pay a 25% fine and bring a sacrifice, Lev. 5:15–16.] ; one who finds one peruṭah’ s worth has to make it public; one who robbed another of one peruṭah’s worth and swore about it, has to return it to him even in Media [Mishnah Bava qamma 9:7.] . There are five fifths [Five cases in which a payment of 125% of the amount is due.] : He who eats heave, or heave of the tithe [If he eats in error, Mishnah Terumot 6:1; Lev. 22:14, Num. 18:26.] , or heave of the tithe of demay [This only applies to demay(produce of which it is not known whether it was tithed), but not to the heave of its tithe; Mishnah Demay 1:2, Note 67.] , or ḥallah [Num. 15:20.] , or first fruits [Mishnah Bikkurim 2:1.] , adds a fifth [All these cases are considered identical since each of them is called “heave” in a verse.] . He who redeems his vineyard in the fourth year [Lev.19:24, 27:31.] or his Second Tithe [Mishnah Ma‘aśer Šeni 5:5; Deut.14:25.] , adds a fifth. He who redeems his own gifts to the Temple, adds a fifth [Lev. 27:19.] . He who used one peruṭah’s worth of Temple property, adds a fifth [He has to pay a 25% fine and bring a sacrifice, Lev. 5:15–16.] . He who robbed another of one peruṭah’s worth and swore about it, adds a fifth [Lev. 5:24.] .
HALAKHAH: “How much time does one have to return it,” etc. [Cf. Babli 52b. The paragraph is the parallel to Ma‘aśer Šeni 2:7, Notes 96–98. It is clear that an underweight coin in Jerusalem in Temple times, when silver coinage was honest silver, could be spent according to its true value by weight. The Mishnah permits to redeem Second Tithe by an underweight coin as if it were full weight. The question asked is why Mishnah Ma‘aśer Šeni 2:6 requires one to choose the better one for Second Tithe if two similar coins, one of Second Tithe and one profane, were commingled and it is not known which one is the sanctified one. Since one may use an underweight coin for redemption, why does one have to choose the fuller weight coin in case of doubt?] Ḥizqiah said, to add it for Jerusalem, he adds it as good coin. If he uses it to redeem in the countryside, he redeems with the underweight coin. But did we not state: “He chooses the better one of the two and exchanges it for them”? Why can he not take the worse [coin] and treat it [as a good one] [Addition of E.] . He [In Ma‘aśer Šeni: R. Jonah.] said, there is a difference here because it already was shown to be Second Tithe [One may use a profane underweight coin for redemption; once it is sanctified it has to be treated with respect.] .
“He may use it for Second Tithe without hesitation since it is only miserly.” [Cf. Babli 53b. A parallel, different treatment is in Ma‘aśer Šeni4:3, Notes 57–63.] Jacob bar Zavdi, Rebbi Joḥanan in the name of Rebbi Simon [For obvious chronological reasons this must read: R. Simon (in Ma‘aśer Šeni: R. Yose ben R. Simon) in the name of R. Joḥanan.] : One does not add a fifth for any Second Tithe which in itself is not worth a peruṭah. Rebbi Joḥanan in the name of Rebbi Yannai: One does not add a fifth for any Second Tithe for which the fifth is not worth a peruṭah [The Babli presents this as R. Simeon ben Laqish’s opinion. The Yerushalmi Ma‘aśer Šeni quotes only the second opinion.] . A baraita supports the one, a baraita supports the other. As it was stated: “From its tithe, [Lev. 27:31.] ” except what is worth less than a peruṭah. [As always in rabbinic interpretation, the prefix מ is partitive: Not for all tithe has a fifth to be given in redemption. Sifra Beḥuqqotai Pereq12(10); Babli 53b.] This means, not unless itself is worth a peruṭah. Another Tanna states: “From its tithe [Lev. 27:31.] , its fifths [Lev. 5:23. The plural “fifths” is interpreted to mean that if somebody is obligated to pay a fifth and then reneges and swears falsely that he does not owe it, the first fifth becomes principal on which another fifth is due. This may continue until the fifth becomes less that a peruṭah. Sifra Wayyiqra Parašah 13(12); Babli 53b.] ” except if it is worth less than a peruṭah. This means, not unless the fifth is worth a peruṭah. Rebbi Abin bar Mamal [Everywhere else, including Ma‘aśer Šeni, he is called Abba bar Mamal. There, it is shown that quite a number of “perutot” are missing from the Mishnah.] said, our Mishnah follows neither one since we have stated “there are five peruṭot”, but we did not state “not unless itself is worth a peruṭah”; we have stated “there are five fifths”, but we did not state “not unless the fifth is worth a peruṭah”.
MISHNAH: The following are not under the rules of cheating [There is no recourse in court for overpaying or underpaying.] : Slaves [In Lev. 25:45, Gentile slaves are put under the rules of real estate.] , securities [Documents of indebtedness. What one buys is not the paper on which the IOU is written but the future claim. What one buys “from the hand of your neighbor” (Lev. 25:14) is the paper; therefore the IOU is not under the rules of that verse.] , real estate [Lev. 25:14 only refers to movables.] , and Temple property [Lev. 25:14 only refers to “your neighbor,” not to public property.] ; they are not under the rules of double or quadruple or quintuple restitution [If slaves, securities, or Temple property was stolen (e. g., Temple animals).] . An unpaid trustee does not have to swear, a paid trustee does not pay. Rebbi Simeon says, sacrifices which he is obligated to warrant [If one vows to bring “a sacrifice”, he has not fulfilled his obligation until the animal was sacrificed. Before that moment, it remains the personal property of the offerer and is covered by Lev. 25:14. But if he vows to offer “this animal”, he has fulfilled his duty at the moment the animal was delivered to the Temple. After that it is Temple property; cf. Mishnah Bava qamma 7:5.] are under the rules of cheating; those for which he is not obligated to warrant are not under the rules of cheating. Rebbi Jehudah says, also he who sells a Torah scroll, an animal, or a pearl is not under the rules of cheating. They told him, they said only these.
HALAKHAH: “The following are not under the rules of cheating,” etc. It was stated [Babli 58b, Tosephta 3:24.] : “Rebbi Jehudah says, also a Torah scroll, an animal, and a pearl are not under the rules of cheating. A Torah scroll, for its value is infinite. An animal and a pearl need to be paired. They said to him, does not a person want to pair everything?” It was stated: “Rebbi Jehudah ben Bathyra says, a sword, a horse, and a shield are not under the rules of cheating at wartime.”
MISHNAH: Just as there is cheating in trade so there is cheating by words. One should not say to another: how much for this object, if he is not interested in buying. If somebody was a repentant sinner, one should not say to him: remember your earlier deeds. If somebody was the son of a proselyte, one may not say to him: remember the deeds of your forefathers, for it is written [Ex. 22:20; Mekhilta dR. Ismael Neziqin 18, Mekhilta dR. Simeon ben Ioḥai p. 210.] : “A sojourner you may neither cheat nor oppress, for you were sojourners in the Land of Egypt.” One [The farmer.] does not mix produce, not even new with new; no need to say new with old. In truth [“In truth” characterizes undisputed practice.] they permitted to mix strong wine with weak since it improves it. One [The winery.] does not mix wine lees with wine but one delivers the lees with the wine. If water became mixed with somebody’s wine, he should not sell it in the store unless he declares it, and not to a trader for that one would only use it to trick people; at a place where they usually put water into the wine they may do so. The trader may buy from five threshing floors and put into one chest, wine from five wine presses and put into one barrel [Greek πίθος.] , on condition that he not intend to mix [He may only pour wines of the same kind into one barrel.] . Rebbi Jehudah says, a store owner should not distribute roasted kernels and nuts to children because he induces them to come to him, but the Sages permit. He should not reduce the price, but the Sages say, may he be remembered as a benefactor [The Sages oppose restrictions which hinder competition.] . He should not clean the groats following Abba Shaul, but the Sages permit it. However, they agree that he may not clean the upper layer of the chest [A store may not dress up the upper layer of merchandise, which is seen by the buyer, and then sell lesser quality from below. This is cheating.] since that gives a dishonest impression. One may not put makeup on humans [Slaves one offers for sale.] , animals, or vessels.
HALAKHAH: “Just as there is cheating in trade,” etc. “One may not put on make-up.” Rebbi Eudaimon the salt dealer was mollifying his spread [The translation of this sentence is tentative and is based on the meaning of the corresponding words فتر، سرد in Arabic. R. Eliahu Fulda (followed by Levy and Kohut) explains that he washed his sieve in soap to produce better looking salt grains. R. M. Margalit explains without any lexical justification that he washed pieces of meat to make them look better. Jastrow translated: R. Eudaimon the sailor mollified his sails. But sails are not edible and they are not made from loose tissue with lots of holes, سرد.] . Jacob bar Aḥa said to him, did we not state: “one may not put on make up”? His word implies that there is make-up on food. Rebbi Ze‘ira was working with flax. He went to Rebbi Abbahu and asked him, may I make my work look good? He told him, go and apply all you know. Rebbi Abbahu was working on those shawls [Yerushalmi Šabbat 4, 8b l. 69 translates רדדים (Is. 3:23) by לסוטות.] . He came to ask Rebbi Yose ben Ḥanina, how am I with those shawls? He told him, go and apply all you know. Rebbi Abba painted a bathtub. Rebbi Jacob from Emmaus stated: What means: “one may not put on make up”? One may not say to him [Slaves one offers for sale.] , paint yourself.