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Bava Metzia, 46

1) "KINYAN CHALIPIN" WITH MONEY

QUESTION: The Gemara proves 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 a case of an employer who needed money to pay his workers, and he asked a Shulchani to lend him a Dinar with which to pay his workers. He said that he would 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 had the money in his home, then such an exchange is permitted. This seems to show that a Kinyan Chalipin can be made with coins, and the Shulchani acquires the coins that the employer has in his home at the moment that he gives over the Dinar to the employer. If 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 is transgressing the prohibition against Ribis.

Ula refutes the Gemara's proof from this 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 done 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," implying that he is not promising to give an actual Dinar, but rather he is promising to give merchandise that is worth a Dinar.

Rav Ashi suggests another answer. Indeed, "Perotetos" were being exchanged (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 promised to give the Shulchani the Perotetos later. Even though the Shulchani did 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 by suggesting this new answer? He agrees that the Beraisa is referring to an exchange of Perotetos and not real coins, and thus he should say that the employer made a Kinyan Chalipin which permitted the exchange! What does he gain by saying that the exchange did not involve a Kinyan Chalipin? (PNEI YEHOSHUA)

In addition, if it is permitted to pay back more than he received since the employer has the money in his home as Rav Ashi says, then why does the Beraisa discuss a case in which the exchange is being 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, though, gave the employer an actual Dinar. Rav Ashi prefers this explanation, since the employer is interested in borrowing money to pay his workers, and 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 Rav Ashi rejects the answer of Ula.

Rav Ashi admits that it is prohibited to exchange a Dinar for a Dinar and extra coins even if the employer has the money at home. It is only when the employer is paying back with Perotetos that the Chachamim permit the exchange. When a person exchanges Perotetos for coins, he is making a sale and not a loan. In such a case, the Chachamim made the Shulchani -- who did not yet acquire 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 be learning the Gemara this way. It seems from their words that Rav Ashi is explaining that both the employer and Shulchani gave to each other Perotetos. 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 explaining that Perotetos are involved in the same way that they are involved in the previous (Ula's) answer. The Beraisa also implies that the "Ma'os" which the employer is giving 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 can 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 referring to Kinyan Chalipin. Perhaps Rav Ashi is suggesting a new explanation of the Beraisa that 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 gave Perotetos? If the reason it is permitted to pay back with Perotetos is because it is considered like a purchase and not a loan (as we wrote above), then it should certainly be permitted when the Shulchani gave *money* and the employer is giving back Perotetos! The answer is that Rashi explains why it is permitted to pay back with Perotetos in a different manner than the other Rishonim. Rashi explains that even if the employer received the money as a loan and not towards the purchase of Perotetos, he would still be permitted to pay back with more Perotetos than he received. The reason for this, as the RITVA cites in the name of the RE'AH, is because 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 being allowed to retain the lender's money for a period of time. Why, then, must the Beraisa be discussing Perotetos? Even if the Shulchani gave 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, it is permitted to pay back more than originally paid.

This explains why the Beraisa discusses a case in which Perotetos were given by both the Shulchani and the employer. 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 was done in a manner similar to a loan, it is nevertheless permitted because the employer has Perotetos in his home. If the Shulchani gave money and the employer paid back with Perotetos, then it would certainly be permitted because it would be like a purchase and not like a loan.

This answer, though, does not suffice to explain Tosfos. First, Tosfos (45b, DH Ein) explains that even according to Rav Nachman, Perotetos may be used for a Kinyan Chalipin. Second, Tosfos here (DH Na'aseh) explains that the Shulchani and the employer did *not* give the same type of Perotetos, but rather they gave each other different types of Perotetos, and the exchange is considered a purchase and not a loan. Both of our questions, then, must still be answered according to Tosfos.

(c) With regard to our first question -- what does Rav Ashi gain by explaining that no Kinyan Chalipin was made -- perhaps Rav Ashi holds that even though Rav Nachman permits Chalipin with coins (if not for the problem of "Tzurta Avida d'Batla"), nevertheless he would not permit Chalipin to be done with Perotetos. Tosfos there 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 might hold 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 they might not be considered a Kli according to Rav Ashi (even though Ula *does* consider them to be a Kli). Therefore Rav Ashi prefers to explain that the Beraisa is not discussing Kinyan Chalipin. This answers the first question.

Regarding 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 is certainly an exchange of a purchase and would be permitted -- perhaps the answer is as follows. Tosfos writes that if the Shulchani and employer give the same type of Perotetos, it is prohibited for the employer to pay 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 because the Shulchani and the employer used *different* types of Perotetos. Hence, the Beraisa might be teaching that even though both of them are giving Perotetos, it is still not considered a loan, since they are using different types of Perotetos. We might have thought that since both are giving objects in the category of Perotetos, it would be considered a loan and be prohibited. (M. Kornfeld)

46b

QUESTIONS: The Gemara discusses whether coins can be used for Chalipin, and it implies that the only reason coins cannot be used is because of "Tzurta Avida d'Batla."

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

How are we to reconcile these Gemaras with the ruling of Rav Nachman (47a), which is the Halachic ruling, who says that only a Kli can be used for Chalipin? (Rishonim)

ANSWERS:

(a) RASHI (45b, DH Mai Ta'ama, and 46b, DH Hachi Ka'amar) explains that a coin, or an animal, are considered Peros and not Kelim and thus 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 doing Chalipin with an item that is not a Kli. (See (b) above in previous Insight.)

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

Reish Lakish discusses a Chalipin done with a wallet full of coins in order to explain what the end of the Mishnah is teaching 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 the end 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 (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 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 like Peros, then what is the second part of the Mishnah adding to what it teaches in the first part? We already know that Peros can be used for Chalipin from the fact 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, though, 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 can be adduced to this from the Gemara at the 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 can be brought to this approach from the Gemara later (47a) which teaches that a Kli can be used for Chalipin even if it is not worth a Shaveh Perutah. It seems clear that the reason it is not necessary for the Kli to be worth a Shaveh Perutah is because the very fact that it is a Kli gives it prominence. (See Tosfos in 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.

QUESTION: The Gemara concludes that according to 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 means that there is a situation in which a Kinyan Kesef can be used 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 being done after the owner of the ox already sold his ox. When the owner of the ox agrees to cancel the debt in return for receiving a cow, the Kinyan takes effect. Later, though, Rashi explains differently, and he says that a normal 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, he originally understood the Gemara in one way, which was the way that 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 way of explaining 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's first way, and then explained it the same as Rashi's second way (the second way is the explanation that appears in our version 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 makes a 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 would appear to be a normal barter! He suggests that perhaps the owner of the cow originally had intended to pay for the ox, and only later decided to give the cow as payment. This is what differentiates the transaction from a normal barter.

The ME'IRI (Kidushin 28b) suggests in one explanation that the buyer did not actually own a cow. The seller had wanted to receive a cow. The buyer apologized for not having a cow to give, and he offered instead the value of a cow to the seller, so that the seller could use that money to purchase a cow. This is why the transaction is unusual -- since the payment is being 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 is indeed considered a normal Kinyan Chalipin and is Koneh (Ramban). Alternatively, they decided 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 what the buyer owes, he is Koneh the cow through Kinyan Kesef with what 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!

There are a number of answers in the Rishonim.

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, 7:4; see MAGID MISHNAH) seems to learn that our Gemara argues with the Gemara in Kidushin (47a) and distinguishes between Kinyan Kesef for purchasing and Kinyan Kesef for marriage. What distinction can we make if the Kinyan Kesef of Kidushin is *derived* from the Kinyan Kesef of pruchasing (Kidushin 2a)? His logic might be as follows:

Kidushin has an additional requirement which is learned from Gerushin through a Gezeirah Shavah: the husband must *give* something to the woman at the time of the Kidushin. Therefore, 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 be done with the Mechilah of a loan.

3. The RI MI'GASH (Teshuvah 113) distinguishes between a normal loan and a loan that came through the purchase of goods. If the loan came about through the purchase of goods then it can be used as Kinyan Kesef. The GILYON cited by the Shitah Mekubetzes makes a simialr distinction, pointing out that normally a loan 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 being forgiven.