Malveh veLoveh - Chapter 9

This was a common method for a farmer to raise funds if his harvest had not been brought to market. He would sell a portion of his harvest in advance and deliver the produce months later, when the price of the produce had already risen. There is a certain similarity to interest, because the purchaser pays a sum and then later collects produce that is worth more than the original sum. It is, nevertheless, permitted, for had the purchaser desired to procure produce at the time when he paid that sum, he could have; that was the going rate at the time. See also Halachah 4 and notes.

The Rambam’s wording is not precise. The intent is that the seller does not have the quantity of produce ordered. Even if he possesses a smaller quantity, the transaction is not acceptable unless a market price has been established [Maggid Mishneh, based on the rulings of Chapter 10, Halachah 2; Shulchan Aruch (Yoreh De’ah 175:4)].

Since the seller could easily have purchased the produce, it is considered as if he already made the purchase and transferred ownership to the person who purchased it from him. Thus, if the produce increases in value, it is considered as if it had been possessed by the final purchaser at the time of the increase. Although the purchaser has the right to retract his commitment, he would receive the adjuration mi shepara for doing so. (See Hilchot Mechirah 7:2.) Hence, we assume that his commitment will remain constant. See parallels in Hilchot Mechirah 22:3-4. The arrangements described in this chapter center around sales. In the following chapter, somewhat similar concepts are applied with regard to loans.

Since the seller did not own the produce, nor could he purchase it easily, it cannot be said that the produce was transferred to the possession of the purchaser. Hence, the money given is considered to be a loan, and the increase in value similar to interest.

See the following halachah.

For the grain is considered as having been acquired by the purchaser. Any increase in its value is therefore not comparable to interest.

To translate this in contemporary economic terms, he is selling a commodity future.

I.e., it has not been threshed or winnowed yet.

Our translation is based on the Rambam’s Commentary on the Mishnah (Tohorot 10:4). There, he describes the vat as a pit where the grapes are kept to soften before being crushed.

Our translation is based on the Rambam’s Commentary on the Mishnah (Ma’aserot 4:3). Here also, the olives are being kept to soften before being pressed.

In his Commentary on the Mishnah (Parah 5:6), the Rambam explains that potters would prepare balls of clay that they would set aside to dry, to use at a later time to fashion different types of utensils. When they received orders for them, they would moisten the clay and form the desired utensils. Making these balls is equivalent to reaping crops.

See the following halachah, where this concept is clarified.

Hence, even if the seller does not possess it himself, he may obtain it from others (Ra’avad).

Either produce or materials.

As stated in Hilchot Mechirah, Chapter 22.

The Rambam is speaking about a situation where the purchaser pays a lesser price - because he pays at the time the agreement is made - yet the product is not delivered until afterwards. Nevertheless, this arrangement is not considered to be interest, because the seller and the purchaser do not speak of a specific amount. Thus, if the quantity of milk, wool or honey is less than expected, the purchaser will suffer a loss. Since there is also an element of risk involved, the arrangement is permitted [Maggid Mishneh, quoting Rashi (Bava Metzia 64a)].

I.e., establishing a specific price for a specific amount. This is forbidden, because it is assumed that the purchaser will be paying less in return for the postponement of the delivery of the product.

But instead fluctuates radically because of the small number of buyers and sellers [Shulchan Aruch (Yoreh De’ah 175:1)].

Here the markets are far less volatile.
This is also the opinion of Rabbenu Yitzchak Alfasi and is quoted by the Shulchan Aruch (ibid.). Tosafot (Bava Metzia 72b) differs and maintains that as long as a market price has been established in villages, an order can be taken. This view is quoted by Rabbenu Asher, the Hagahot Maimoniot and the Tur. The Ramah states that since the basis for the transaction is a sale, the entire question is one of Rabbinic law. Hence, the more lenient opinion should be followed.

The fact that there is a different price for new grain and old grain indicates that the price has not yet become fixed and will still fluctuate. Hence, an order cannot be placed unless the person actually possesses grain (Maggid Mishneh).

This term refers to the poor, whom the Torah entitles to gather grain from fields in several situations: leket, grain that dropped, shich’chah, grain that has been forgotten and pe’ah, grain from the corners of the field. The grain gathered in this fashion is of lesser quality than the grain gathered by the owner of a field, because the poor gather from several fields and mix rye and other grains together with wheat [Rashi (Bava Metzia 72b)].

One may, however, place an order from the owner of a field at the price at which his grain would ordinarily be sold (Maggid Mishneh; Siftei Cohen 175:6).

In his Commentary on the Mishnah (Bava Metzia 5:7), the Rambam interprets this to mean that the farmer may sell produce of the highest quality at the price being quoted for the least valuable crops of that type of produce, with the condition that he not deliver the produce until later.
This relates to a frequent problem in agricultural communities. The harvest has just started and so the price of produce is relatively high. Within several weeks or months, when the majority of the produce is reaped, it will be plentiful and the price will probably fall.
Now the farmers need money immediately. To raise funds, they will sell their crops in advance, knowing that they may receive far less than the present retail price of the produce. Although the purchaser will most probably make a profit, this is not forbidden, for if he had retained possession of his money, he would have been able to purchase the grain when the retail price fell to that level [Perishah (Yoreh De’ah 175)].

I.e., he gave him money for wheat without specifying the purchase price or how it would be calculated.

Either the seller (because the price rose) or the purchaser (because the price went down).

See Hilchot Mechirah 7:1-2. As mentioned in that source, either principal is entitled to retract his commitment, because the produce was not formally acquired through the kinyan of meshichah. Nevertheless, making such a retraction is not considered to be ethically proper.

Nor the agent [Shulchan Aruch (Yoreh De’ah 175:7)].

As stated in Hilchot Sh’luchin 1:2, when an agent makes an error that worsens the position of the principal who sent him, the transaction is nullified.

But it is inaccessible to him immediately; hence, he will not deliver it until later.

Since he has the wheat in his possession, it is as if he is reducing the selling price.

The Siftei Cohen 173:18 states that if the seller possesses grain, but has entrusted it to others for safekeeping, such a transaction is permitted.

The Beit Yosef (Yoreh De’ah 173) explains the rationale for this ruling as follows: According to Scriptural Law, a transaction is completed with the transfer of funds. Hence, with regard to the laws of interest, as long as the seller possesses the produce, the transaction is considered complete. We are not concerned with the fact that he willingly accepts a loss. When, however, the seller does not possess the produce, we fear that the buyer will profit by the delay. Hence, this transaction was forbidden by the Sages.

This addition is made based on the citation of this law in the Shulchan Aruch (Yoreh De’ah 173:16). If there was no concept of delayed payment, there would be no difficulty at all, even if the merchant would accept responsibility, because the merchant would be no more than an agent of the purchaser [Beit Yosef (Choshen Mishpat 173)].

The difficulty in this situation is that the purchaser gives the merchant the money in advance. Thus, the merchant will be using the purchaser’s money to buy the produce. Hence, if the produce were in the merchant’s possession, it would be as if he received a loan in order to buy the produce. Thus, it would appear that the purchaser received a profit - an extra se’ah of grain - for giving a loan and waiting for the delivery of the produce. If, however, the produce is considered to be in the possession of the purchaser, he is undertaking a certain degree of risk. Therefore, there is no question of interest.

The Maggid Mishneh quotes the Ramban, who rules that if the purchasers pay the merchants’ expenses and wages, such an arrangement is permitted, even if the merchants accept responsibility for the produce. This view is quoted by the Ramah. The commentaries explain that the Rambam would also accept this ruling.

I.e., a person looked up to as an exemplar of moral conduct.

For he should go beyond the letter of the law. The Rivash (Responsum 307) writes that if the distinguished person also pays the merchant a wage, the arrangement is permitted.

This bracketed addition is found in many authoritative manuscripts and early printings of the Mishneh Torah.

Since produce is continuously found in villages, the merchant will receive a benefit from carrying out the transaction. For carrying out the transaction will establish him – or entrench his position - in this business. Hence, despite the fact that on the way to the villages he is caring for the purchaser's money without charge, the transaction is permitted (Turei Zahav 173:26-27).

E. g., they offer provisions for themselves and food for their donkeys at lower prices.
The Ra’avad objects to the Rambam’s statements, and the Maggid Mishneh states although the Rambam’s ruling is acceptable, it does not appear to be the correct interpretation of Bava Metzia 73a, the Talmudic passage that evidently served as the Rambam’s source.
To explain: The Rambam interprets that passage as follows: “In a place where grain is expensive, donkey-drivers may charge the price paid in a place where grain is inexpensive, [because]... [the purchasers] tell them the local price; alternatively, because they charge less [for supplies].” The Ramban and others, however, understand that passage as connected to the previous law and interpret it entirely differently. In this instance, the later authorities do not quote the Rambam’s ruling.

I.e., from a place where it is being sold at a lower price to a place where it is being sold at a higher price.

Immediately, without receiving payment for them at the present time.

Since the purchaser possesses the produce, the exchange is considered to be a sale and not a loan. The purchaser may have an abundance of produce at the destination, and hence would rather have some produce available at present, than the larger amount at the destination.

Since the purchaser possesses the produce, the exchange resembles a loan at interest and not a sale. He is taking a product that he does not have and returning it later.

I.e., in the future, and thus the transaction resembles a loan.

I.e., if it is lost or stolen, he suffers the loss. Hence, it is permitted, because its increase in value comes after the risk is over. Compare to Chapter 8, Halachah 3.
The Maggid Mishneh quotes certain opinions that state that this license is granted even when the seller does not pay the purchaser a wage for taking care of the merchandise. The Shulchan Aruch (Yoreh De’ah 173:15) differs and requires that a wage be paid. The Turei Zahav 173:24 states, however, that all that is necessary is to pay a symbolic sum.

Since the purchaser takes the risk and the seller receives his profit regardless, the transaction resembles a loan at interest.

Even if the amount given is less than the usual price for fully grown cucumbers or watermelons.

The farmer must give the purchaser the cucumbers or the watermelons singled out at the outset (Siftei Cohen 173:20; Turei Zahav 173:13).

The Maggid Mishneh notes the contrast to Chapter 8, Halachah 5, which forbids taking prior payment for fruit growing in an orchard. The Maggid Mishneh distinguishes between the two instances, stating that in the present instance, there is virtually no work involved; garden vegetables grow as if on their own accord. Caring for fruit in an orchard, by contrast, requires much more work. Hence, having the seller perform that work without receiving recompense resembles interest.

With this phrase, the Rambam is making a distinction between these vegetables and the goats’ milk mentioned in Halachah 3. The goats’ milk to be delivered later is not the same as the goat is carrying at present, while in this instance, the cucumbers and the watermelons are the same.