The Ramban, in perhaps his most famous biblical comment, notes that one can observe every law in the Torah and yet be no better than a dead carcass (Vayikra 19:2). Law embodies values but it is impossible to legislate every human exchange (see Ramban, Devarim 6:18). Those who so desire can manipulate the system finding lacunae in the law to “justify” taking advantage of others.
Such is the case in the opening Mishna of the fourth chapter of Bava Metzia. The Mishna (Bava Metzia 44a) discusses how one exchanges coins delineating which coin constitutes the medium of exchange and which the commodity being bought. When one exchanges gold for silver, or silver for copper is one buying gold or is it silver that is being purchased? This is not as trivial as it sounds. According to Jewish law, a transaction is finalized only when one makes a kinyan, a demonstration of ownership of the purchased item. With movable items, as opposed to land, that occurs with the kinyan of meshicha, when one lifts up or otherwise moves the object and takes it into one’s possession. Strange as it sounds paying money does not confer title - cash is not always king. And if title is not transferred one can renege on the deal. Since in both the above cases it is silver that is the medium of exchange, the transaction is finalized only when the purchaser takes the gold or copper. However, if one were to pay for the gold or copper but fail to take possession either party could legally withdraw from the transaction[1].
Why money cannot consummate a sale is a matter of debate between two Israel-based first generation Amoraim, Rav Yochanan and Reish Lakish. “Rav Yochanan said: According to Torah law money effects ownership. And why was it said that [only] meshicha effects possession? Lest he [the vendor] say to him [the vendee] 'your wheat was burnt in the loft'” (Bava Metzia 47b). Human nature being what it is, we care much more about ourselves and our own property than that of others. Should there be an accidental fire one would work much harder to save that which is his rather than that which is his friend’s – even a friend he cares deeply about. By placing responsibility for the paid object at the feet of the seller the buyer is protected from accidental loss.
Rav Yochanan’s chevruta, study partner, and brother-in-law, Reish Lakish, argues that the ineffectiveness of money as a medium to transfer ownership is rooted in Biblical law: “And if you make a sale to your neighbour, or buy miyad, from the hand, of your neighbour you shall not overcharge him” (Vayikra 25:14). While the verse is speaking of the prohibition of ona’ah, price fraud, the use of the word miyad, Reish Lakish claims, is the Torah’s way of hinting that moveable objects can be acquired only when they literally come into one’s hand. Apparently Reish Lakish views money as being of symbolic value, and one cannot acquire objects “symbolically.”
Whether of Biblical or Rabbinic origin, it matters little. One does not acquire an object by money alone.
While from a legal point of view there is little we can do to prevent one from paying and then reneging if one has not taken possession, there is something else we can do, something that I would hope is even more powerful than a legal remedy. We can give one who goes back on his word a mi shepara.
“If he gave him money but did not take the object from him, he can retract. But they said: Mi shepara, He who exacted payment from the Generation of the Flood and the Generation of the Dispersion will ultimately exact payment from he who does not stand by his word” (Bava Metzia 44a).
We make no such curse against those who eat pork, or eat on Yom Kippur, or don’t hear the shofar. But those who break their word – and giving money is more than giving one’s word – even as they follow the letter of the law are subject to a public curse. This speaks both to the severity with which our Sages viewed such activity and most likely to its all too common occurrence.
When it comes to money, all are susceptible to doing whatever they can to get an edge – especially if it’s legal. When the Gemara (Bava Batra 165a) notes that “the majority are involved in theft” it is referring to otherwise observant people-even the greatest of people.
The Gemara (Bava Metzia 48b) relates how Rav Chiya bar Yosef sold some salt. Before delivery salt prices rose and Rav Chiya wanted, as was his legal right, to back out of the deal. He went to Rav Yochanan who told him that he better deliver the salt at the agreed upon price or else be subject to the curse of a “mi shepara.”
The Gemara does raise the possibility that the merchant paid for only part of the merchandise and Rav Chiya was asking only about delivering the salt for the portion of the salt for which payment had yet to be made. Since some of our Sages ruled that words alone have no legal implications he felt he could cancel part of the deal. After all no payment had been made and this should not to be considered acting in bad faith. But such legal niceties mattered little to Rav Yochanan. Employing a play on the word heen, a measure of some 150 ounces, with hein, meaning yes, the Gemara teaches that “your yes should be a yes and your no should be a no” (Bava Metzia 49a). Even verbal utterances involving no legal commitment must be honoured.
The complexities of asserting one’s legal rights while acting in bad faith is demonstrated by the story with which our discussion concludes. Hahu gavra, there was a man, who gave money for sesame seeds. Before he could take possession the price increased and the sesame salesman wanted out. He told the buyer that he had no more seeds and told him to “take back your money.” The buyer, expecting better, refused to do so. With no seeds forthcoming the purchaser did eventually want his money back. However, in the interim the money was stolen. They came before Rava who ruled that since the “seller” told the “buyer” to take back his money, he no longer bore any responsibility for the monies he continued to hold against his will. When the Rabbis protested to Rava, “but we require to give him a mi shepara”, Rava responded, “that is correct.”
We may curse one to drop dead, but the law is the law and the “seller” is not responsible for the money stolen under his “watch”. If the seller wants to avoid such a curse he can do so – by giving the buyer the seeds he purchased. Pay up or take a curse - the choice is ours.
[1] Rabbi Shimon argues that “whomever has the money in his hand, his hand is on top”; i.e., the seller can withdraw from the deal up until the point that the buyer takes possession of the object, whereas the buyer cannot renege once he pays. Jewish law rejects this view, preferring a symmetrical relationship between buyer and seller.
