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BAVA METZIA 46-49 - Dedicated by Mrs. Rita Grunberger of Queens, N.Y., in loving memory of her husband, Reb Yitzchok Yakov ben Eliyahu Grunberger. Irving Grunberger helped many people quietly in an unassuming manner and is dearly missed by all who knew him. His Yahrzeit is 10 Sivan.

1) "KINYAN CHALIPIN" WITH MONEY

QUESTION: The Gemara attempts to prove from a Beraisa that coins may be used to make a Kinyan Chalipin and that they may be acquired through a Kinyan Chalipin. The Beraisa discusses the case of an employer who needs money to pay his workers, and he asks a Shulchani to lend him a Dinar with which to pay his workers. He says that he will pay back the Shulchani with a Dinar and some extra money which he has in his home. The Beraisa says that if, at that moment, he actually has the money in his home, such an exchange is permitted. This shows that a Kinyan Chalipin may be made with coins, since the Shulchani acquires the coins which the employer has in his home at the moment that he gives over the Dinar to the employer. If a Kinyan Chalipin cannot be made with coins, then the employer owes a Dinar to the Shulchani, and when he pays back a Dinar with extra money he transgresses the prohibition against Ribis.

Ula refutes the Gemara's proof from the Beraisa. He explains that the employer is not asking for a Dinar coin from the Shulchani and offering a Dinar coin in exchange. Rather, he is asking for "Perotetos" (copper slugs) that are worth a Dinar, and he is offering more than a Dinar's worth of Perotetos in exchange. Since Perotetos are not used as currency, a Kinyan Chalipin can be made with them. The Gemara proves that this indeed is the intention of the Beraisa from the wording of the employer when he says, "I will give you the value of a Dinar plus extra coins in exchange," which implies that he is not promising to give an actual Dinar, but rather to give merchandise that is worth a Dinar.

Rav Ashi suggests another answer. Indeed, the Beraisa's case involves an exchange of Perotetos and not actual money (as implied by the wording of the Beraisa), but not with Kinyan Chalipin. Instead of transferring to the possession of the Shulchani the Perotetos in his home at that moment, the employer promises to give the Shulchani the Perotetos later. Even though the Shulchani does not acquire the Perotetos until later, it is not considered Ribis since the employer has the Perotetos in his possession in his home.

What does Rav Ashi gain with this new answer? He agrees that the Beraisa refers to an exchange of Perotetos and not real coins, and thus he should say that the employer made a Kinyan Chalipin which permits the exchange! What does he gain by saying that the exchange does not involve a Kinyan Chalipin? (PNEI YEHOSHUA)

Moreover, if the employer is permitted to pay back more than he receives because he has the money in his home as Rav Ashi says, then why does the Beraisa discuss a case in which the exchange is done with Perotetos? (TOSFOS RABEINU PERETZ, TORAS CHAIM)

ANSWERS:

(a) The RAMBAN, RITVA, and others explain that according to Rav Ashi, only the coins that the employer is giving to the Shulchani are Perotetos, as the Beraisa implies. The Shulchani, however, gives the employer an actual Dinar. Rav Ashi prefers this explanation since the employer is interested in borrowing money to pay his workers. A person normally pays his workers with coins that are legal tender and not with Perotetos (see TOSFOS DH Idi v'Idi). This is the reason why Rav Ashi rejects the answer of Ula.

Rav Ashi admits that exchanging a Dinar for a Dinar and extra coins is prohibited even when the employer has the money at home. It is only when the employer pays back with Perotetos that the Chachamim permit the exchange. When a person exchanges Perotetos for coins, he makes a sale and not a loan. In such a case, the Chachamim consider the Shulchani -- who has not yet acquired the Perotetos -- as though he has already acquired the Perotetos, so that the employer may receive his payment for the Perotetos now. If the employer would pay back with coins, then it would be a loan and it would be prohibited because of Ribis.

Rashi and Tosfos, however, do not seem to understand the Gemara this way. They apparently understand that Rav Ashi means that both the employer and Shulchani give Perotetos to each other. The Toras Chaim points out that this is implicit in the Gemara according to the Girsa "l'Olam b'Perotetos" (which is the Girsa of Rashi and most Rishonim). The Gemara implies that Rav Ashi is saying that Perotetos are involved in the same way that they are involved in the previous answer ((Ula's). The Beraisa also implies that the "Ma'os" which the employer gives to the Shulchani are the same type of "Ma'os" that the Shulchani gives to the employer.

(b) The PNEI YEHOSHUA explains that according to Rashi's opinion earlier (45b, DH Mai Ta'ama), Rav Ashi's words may be understood as follows. Rashi writes that according to Rav Nachman only a Kli may be used for Chalipin, but not a coin or any other object that is not a Kli. Hence, Rav Nachman cannot explain that the Beraisa is discussing a case of Kinyan Chalipin. Perhaps Rav Ashi's intention is to suggest a new explanation of the Beraisa which can be used even according to Rav Nachman. Why, according to Rashi, does the Beraisa discuss a case in which both the Shulchani and the employer give Perotetos? If the reason why one is permitted to pay back with Perotetos is that it is considered like a purchase and not a loan (as mentioned above), then it certainly should be permitted when the Shulchani gives money and the employer gives back Perotetos! The answer is that Rashi explains why one is permitted to pay back with Perotetos in a different manner than the other Rishonim. Rashi explains that even if the employer would receive the money as a loan and not towards the purchase of Perotetos, he still would be permitted to pay back with more Perotetos than he received. The reason for this, as the RITVA writes in the name of the RE'AH, is that if the employer has money in his home, and the Shulchani saves him the trouble of going home and getting the money, the Shulchani is entitled to receive payment for saving the employer's time and effort. This is not considered Ribis because Ribis applies only to payment given in return for the right to retain the lender's money for a period of time. Why, then, must the Beraisa be discussing Perotetos? Even if the Shulchani gives money to the employer, the employer should be permitted to pay back with more money! Apparently, the Chachamim prohibited paying back more money in a money-for-money exchange because it looks like Ribis. When the Shulchani gives Perotetos, though, and the employer pays back with Perotetos, he is permitted to pay back more than he originally paid.

This explains why the Beraisa discusses a case in which both the Shulchani and the employer give Perotetos. When both of them give each other Perotetos, it is considered a loan and not a purchase, as TOSFOS (DH Na'aseh) implies. The Beraisa is teaching that even though the exchange is done in a manner similar to a loan, it nevertheless is permitted because the employer has Perotetos in his home. If the Shulchani gives money and the employer pays back with Perotetos, it certainly would be permitted because it would be like a purchase and not like a loan.

This answer, however, does not suffice to explain Tosfos. Tosfos (45b, DH Ein) explains that even according to Rav Nachman, Perotetos may be used for a Kinyan Chalipin. Moreover, Tosfos here (DH Na'aseh) explains that the Shulchani and the employer do not give the same type of Perotetos, but rather they give each other different types of Perotetos, and the exchange is considered a purchase and not a loan. Accordingly, both questions remain according to Tosfos.

(c) The answer to the first question (what does Rav Ashi gain by explaining that no Kinyan Chalipin was made) may be as follows. Perhaps Rav Ashi maintains that although Rav Nachman permits Chalipin with coins (if not for the problem of "Tzurta Avida d'Batla"), nevertheless he does not permit Chalipin to be done with Perotetos. Tosfos explains that a coin may be used for Chalipin according to Rav Nachman since it is included in the category of a Kli, because it can be used as a weight or as a decorative pendant. Rav Ashi may maintain that this applies only to coins which are stamped and thus have a decorative appearance and can be used as a pendant. Perotetos, in contrast, are slugs which are not stamped and which have no set weight, and therefore Rav Ashi might not consider them a Kli (even though Ula does consider them a Kli). Therefore, Rav Ashi prefers to explain that the Beraisa is not discussing Kinyan Chalipin. This answers the first question.

The answer to the second question (why does the Beraisa discuss a case in which both the Shulchani and the employer give Perotetos to each other, and not a case in which the Shulchani gives coins and the employer gives Perotetos, which certainly is an exchange of a purchase and would be permitted) may be as follows. Tosfos writes that if the Shulchani and employer give the same type of Perotetos, the employer is prohibited from paying more than he received because the transaction is considered a loan, and paying back more than he received would be considered Ribis. The reason the Beraisa permits it is that the Shulchani and the employer use different types of Perotetos. Hence, the Beraisa might be teaching that even though both of them are giving Perotetos, it is not considered a loan since they are using different types of Perotetos. One might have thought that since both are giving objects in the category of Perotetos, it should be considered a loan and be prohibited. (M. KORNFELD)

46b----------------------------------------46b

2) THE USE OF VARIOUS TYPES OF OBJECTS FOR "CHALIPIN"

QUESTIONS: The Gemara discusses whether or not coins may be used for Chalipin. The Gemara implies that the only reason why coins may not be used is "Tzurta Avida d'Batla" -- one who receives a coin "has in mind the impression that was stamped on the coin, and the impression will eventually be invalidated" (when a new king comes to power and requires a new stamp, invalidating the old one).

The Gemara also discusses the use of an ox or a donkey for Chalipin. Later, the Gemara discusses the use of a wallet full of disqualified coins for Chalipin.

How are these Gemaras to be reconciled with the ruling of Rav Nachman (47a), whom the Halachah follows, who says that only a Kli may be used for Chalipin? (Rishonim)

ANSWERS:

(a) RASHI (45b, DH Mai Ta'ama, and 46b, DH Hachi Ka'amar) explains that a coin and an animal are considered Peros and not Kelim, and thus they may not be used for Chalipin according to Rav Nachman. According to Rashi, the Gemara is discussing the opinion of Rav Sheshes whenever it discusses Chalipin with an item that is not a Kli. (See previous Insight, answer (b).)

The BA'AL HA'ME'OR, who also follows this approach, points out that Reish Lakish who rules that a wallet full of coins may be exchanged for a wallet full of coins follows his own opinion expressed a few lines earlier, where the Gemara says that Reish Lakish rules like Rav Sheshes that even Peros may be used for Chalipin.

Reish Lakish discusses a Kinyan Chalipin done with a wallet full of coins in order to explain what the Mishnah teaches when it says that "all Metaltelin may be used for Chalipin." According to Rav Nachman who maintains that a wallet full of coins cannot be used for Chalipin, what is that line of the Mishnah teaching? (RAMBAN in Milchamos)

The answer may be found in Rashi's words on the Mishnah (DH Kol ha'Metaltelin). Rashi explains that the Mishnah is teaching that Metaltelin may be used not only to effect a Kinyan Chalipin, but they may be used even to effect a Kinyan Kesef (since it is unusual to make a Kinyan Kesef with Metaltelin). This is consistent with the way Rashi explains the opinion of Rav Nachman with regard to the Mishnah in Kidushin (28a). (See Rashi DH Keitzad and following Insight.) Rav Nachman allows such a Kinyan Kesef to take effect because he accepts the opinion of Rebbi Yochanan who says that a Kinyan Kesef is a valid Kinyan mid'Oraisa. Reish Lakish, who explains that the Mishnah is teaching that Chalipin may be done with wallets full of coins, is consistent with his own opinion that a Kinyan Kesef cannot be done with Metaltelin, and therefore the Mishnah must be referring to a Kinyan Chalipin. (M. KORNFELD)

Rashi (DH Hachi Ka'amar) omits the Girsa "Basar Shor" because of his opinion that a Shor and the meat of a Shor are both considered Peros. (Rashi in Kidushin 28b accepts the Girsa of "Basar Shor" and explains that a Shor is more similar to a Kli than to the meat of a Shor, even though both are Peros.)

(b) The RA'AVAD (in Hasagos on the Rif here) and the RIF (in a Teshuvah cited by the Shitah Mekubetzes) explain that Rav Nachman does not require specifically a Kli for Chalipin. He uses the word "Kli" merely to exclude Peros and other edible items, which Rav Sheshes permits for Chalipin. Hence, a coin or a live animal may be used for Chalipin even according to Rav Nachman.

The Ra'avad and other Rishonim cite proof for this from the way the Gemara explains the Mishnah in Kidushin according to Rav Sheshes. The Gemara explains that the first part of the Mishnah ("Kol ha'Na'aseh Damim b'Acher") is teaching that a coin may be used for Chalipin. The second part of the Mishnah ("Hichlif Shor b'Parah") is teaching that even Peros may be used for Chalipin. If a coin is considered Peros, then what is the second part of the Mishnah adding to what it teaches in the first part? The Mishnah already teaches that Peros may be used for Chalipin when it says that a coin may be used! (See RAMBAN in Milchamos.)

The answer to this might be that according to Rashi, the first part of the Mishnah does not permit using coins l'Chatchilah, but rather if they were used, then b'Di'eved the Chalipin is effective. The second part of the Mishnah is teaching that other types of Peros may be used for Chalipin even l'Chatchilah. (M. KORNFELD)

(c) TOSFOS (45b, DH Ein, and 46b, DH u'Peiri) writes that Rav Nachman indeed limits Chalipin to Kelim and not to all objects that are inedible. However, Rav Nachman considers a coin to be a Kli (because it can be used as a weight or a pendant). He also considers an ox or donkey to be a Kli while it is alive, because it can be used for carrying burdens or for plowing. A rock, however, may not be used for Chalipin according to Rav Nachman. In this way, Tosfos preserves the simple meaning of the words of Rav Nachman, and yet he does not need to say that all of the Gemaras that discuss Chalipin with coins and animals are in accordance only with the view of Rav Sheshes.

Perhaps proof for this approach may be adduced from the Gemara earlier (beginning of the Daf) that discusses a person who is standing in a threshing house without any object with which to use for Chalipin. If even a stone may be used for Chalipin, then how is it possible that he cannot find a stone to use for Chalipin?

Further support for this approach may be inferred from the Gemara later (47a) which teaches that a Kli may be used for Chalipin even if it is not worth a Perutah. It seems clear that the reason the Kli need not be worth a Perutah is that the very fact that it is a Kli gives it prominence. (See Tosfos to Kidushin 11b, DH v'Harei.)

Perhaps in truth the Ra'avad and others also agree that although Rav Nachman does not require specifically a Kli for Chalipin, he does require an object that people save and value, for otherwise it is considered a "Davar she'Eino Mesuyam" (47a) which cannot be used for Chalipin.

3) AN ACQUISITION MADE THROUGH AN EXCHANGE OF GOODS

QUESTION: The Gemara explains how Rav Nachman understands the Mishnah in Kidushin (28a) which implies that a Kinyan Chalipin may be achieved with the transfer of a non-Kli object, contrary to the view of Rav Nachman. When the Mishnah says that when a person exchanges his ox for a cow the Meshichah of one effects the Kinyan of the other, it refers to a Kinyan Kesef and not to a Kinyan Chalipin. It means that there is a situation in which a Kinyan Kesef takes effect since it is done in a manner similar to Chalipin. That case is when the person exchanges the value of his cow for the value of an ox.

RASHI seems to give conflicting explanations for this statement. Rashi first explains (DH Keitzad) that the Kinyan is done after the owner of the ox already sold his ox to the owner of the cow, but the buyer did not yet pay for it but rather accepted upon himself the outstanding payment as a debt he owes to the seller. Later, the former owner of the ox agrees to cancel the debt in return for receiving the buyer's cow. At that point, the Kinyan takes effect. Later, however, Rashi explains the case differently. He explains that an ordinary barter is taking place, where the two animals are being exchanged based on their monetary value. What does Rashi mean to say?

ANSWER: The MAHARAM SHIF and CHASAM SOFER point out that Rashi indeed is presenting two different explanations. Apparently, Rashi originally understood the Gemara in one way, which was the way he explained it when he first wrote his commentary on Bava Metzia. Later, Rashi retracted his explanation and explained the Gemara in a different way. This second explanation is the way that Rashi explains the Sugya in Kidushin (28b). The RAMBAN mentions that the RIF also originally explained the Gemara in the same way as Rashi first explained it, and then explained the same as Rashi's second way (the second way is the explanation that appears in our text of the Rif). The two different approaches are as follows.

(a) Originally, Rashi and the Rif explained that according to Rav Nachman, if the owner of an ox decides on a set value for his ox, and the owner of the cow declares that his cow is worth that value and he wants to use it to purchase the ox, as soon as the owner of the ox performs Meshichah on the cow the owner of the cow acquires the ox through Kinyan Kesef. (The Kinyan is not described as a Kinyan Chalipin, since the owner of the cow intended to use the cow as payment, and not as an exchange, for the ox.)

(This explanation of Rashi begins from the words, "v'Hachi Ka'amar." The first part of Rashi's comment here is his later addition.)

Rashi's comment earlier (44a, DH Kol ha'Metaltelin) is consistent with this explanation.

The Ramban asks why this should be considered an unusual transaction. It appears to be an ordinary barter! He suggests that perhaps the owner of the cow originally intended to pay for the ox, and only later he decided to give the cow as payment. This is what differentiates this transaction from an ordinary barter.

The ME'IRI (Kidushin 28b) suggests (in one explanation) that the buyer did not actually own a cow. The seller wanted to receive a cow in return for his ox, and the buyer apologized for not having a cow to give him. He offered instead the value of a cow to the seller, so that the seller could use that money to purchase a cow in the market. This is why the transaction was unusual -- the payment was designated to be used for the purpose of buying a cow.

(b) Later, Rashi and the Rif retracted their original explanation. They decided that when two items are bartered, it indeed is considered a normal Kinyan Chalipin and the Kinyan takes effect (Ramban). Alternatively, they understood that if it is specified that the cow is given as payment and not as an exchange (Chalipin), then the Meshichah of the cow will not be Koneh, since it is a common form of Kinyan Kesef. Rather, they explained as follows. The owner of the cow already sold his cow in exchange for a set sum of money that was yet to be delivered to him. Afterwards, the buyer offered a cow in exchange for the sum that he owed. As soon as the seller agrees to be Mochel (pardon) what the buyer owes, he is Koneh the cow through Kinyan Kesef with the value he was Mochel. (The RITVA here cites a Yerushalmi that adds that the buyer had already appointed a storekeeper to pay back the seller at the buyer's expense.)

Why, though, should this be considered a Kinyan Kesef? The Gemara in Kidushin (47a) teaches that if a woman owes money to a man, he cannot be Mekadesh her with that money by being Mochel it to her. The Gemara implies that the same would apply to a purchase. Accordingly, the owner of the ox should not be able to acquire the cow by being Mochel the money that he is owed!

The Rishonim suggest several answers to this question.

1. TOSFOS (DH Yesh) answers that the owner of the ox specifies that he wants to be Koneh with the "benefit of the Mechilah of the money owed," referring to the benefit that the owner of the cow receives by not having to pay for the ox that he purchased. This type of benefit is valid to effect a Kinyan Kesef, as the Gemara says in Kidushin (6b).

2. The RAMBAM (Hilchos Mechirah 5:4 and 7:4; see MAGID MISHNEH there) seems to learn that the Gemara argues with the Gemara in Kidushin (47a) and distinguishes between a Kinyan Kesef of a purchase and a Kinyan Kesef of marriage. What distinction can be made if the Kinyan Kesef of Kidushin itself is derived from the Kinyan Kesef of a purchase (Kidushin 2a)? His logic may be as follows.

Kidushin has an additional requirement which is derived from Gerushin (divorce) through a Gezeirah Shavah: the husband must give something to the woman at the time of the Kidushin. Accordingly, the Kidushin is valid only if the husband gives either Kesef or Shaveh Kesef (or Hana'ah, which is like Shaveh Kesef) at the time of the Kidushin. Therefore, he cannot be Koneh her with a loan which was given at an earlier time. A purchase, in contrast, has no such requirement, and therefore it can take effect with the Mechilah of a loan.

3. The RI MI'GASH (Teshuvah 113) distinguishes between an ordinary loan and a loan that comes about through the purchase of goods. A loan that comes about through the purchase of goods may be used as Kinyan Kesef. The GILYON cited by the Shitah Mekubetzes makes a similar distinction, pointing out that a loan normally is "l'Hotza'ah Nitnah," given for the sake of spending the money and paying back at a later time. However, the money that is owed for the purchase is supposed to be paid back as soon as the purchase is made, and therefore it never had a period which can be called "l'Hotza'ah Nitnah," and it is as if the money that is owed is present at the time that the loan is forgiven.

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