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Malveh veLoveh - Chapter 10

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Malveh veLoveh - Chapter 10

1Just as it is permitted for a seller to take an order based on the market price;1 so, too, it is permitted to give a loan of produce without any conditions, to be returned without any conditions, without establishing a time when it must be returned2 once the market price has been established.אכְּשֵׁם שֶׁמֻּתָּר לַמּוֹכֵר לִפְסֹק עַל שַׁעַר שֶׁבַּשּׁוּק - כָּךְ מֻתָּר לִלְווֹת הַפֵּרוֹת סְתָם, וּפוֹרְעִין אוֹתָן סְתָם בְּלֹא קְבִיעַת זְמַן עַל שַׁעַר שֶׁבַּשּׁוּק.
What is implied? If there was a fixed3 market
price for wheat that was known by both the borrower and the lender, when the borrower borrows ten se’ah of wheat from a colleague, he is obligated to return ten se’ah, even though the price of wheat increased.4 The rationale is that when he borrowed the wheat from him, the market price was known. If he had wanted to, he could have purchased wheat and returned it,5 since a minimum term of the loan was not established.
כֵּיצַד? הָיָה הַשַּׁעַר קָבוּעַ וְיָדוּעַ לִשְׁנֵיהֶם, וְלָוָה מֵחֲבֵרוֹ עֶשֶׂר סְאִין - חַיָּב לְהַחֲזִיר לוֹ עֶשֶׂר סְאִין, אַף עַל פִּי שֶׁהוּקְרוּ הַחִטִּים; שֶׁהֲרֵי כְּשֶׁלָּוָה מִמֶּנּוּ הָיָה הַשַּׁעַר יָדוּעַ, וְאִלּוּ רָצָה - הָיָה קוֹנֶה וּמַחֲזִיר לוֹ, שֶׁהֲרֵי לֹא קָבַע לוֹ זְמַן.
2If the borrower possesses some of the type of produce that he seeks to borrow, it is permissible for him to borrow this produce6 without any conditions, to be returned without any conditions, without establishing a time when it is due.7 Even if he possesses only a se’ah, he may borrow many se’ah because of it.8בהָיָה לוֹ מֵאוֹתוֹ הַמִּין שֶׁלָּוָה - הֲרֵי זֶה מֻתָּר לִלְווֹת סְתָם בְּלֹא קְבִיעַת זְמַן וּפוֹרֵעַ סְתָם, אַף עַל פִּי שֶׁעֲדַיִן לֹא יָצָא הַשַּׁעַר. וְאַפִלּוּ הָיְתָה לוֹ סְאָה בִּלְבַד - לֹוֶה עָלֶיהָ כַּמָּה סְאִין.
Even if he possesses only a drop of oil or wine, he may borrow several jugs of wine and oil because of it.9 If he did not possess any of that type of produce and the market price was not established yet, or the borrower and the lender did not know the market price,10 it is forbidden to lend a se’ah of produce for a se’ah to be returned at a later date.11הָיְתָה לוֹ טִפָּה אַחַת שֶׁל שֶׁמֶן אוֹ יַיִן, לֹוֶה עָלֶיהָ כַּמָּה גִּרְבֵּי יַיִן וְשֶׁמֶן. לֹא הָיָה לוֹ מֵאוֹתוֹ הַמִּין כְּלוּם, וְלֹא נִקְבַּע שַׁעַר הַשּׁוּק עֲדַיִן, אוֹ שֶׁלֹּא יָדְעוּ שַּׁעַר שֶׁבַּשּׁוּק - הֲרֵי זֶה אָסוּר לִלְווֹת סְאָה בִּסְאָה.
Similarly, with regard to other types of produce, a person should not lend them out until he establishes a financial equivalent.12וְכֵן בִּשְׁאָר הַפֵּרוֹת - לֹא יִלְוֶה אוֹתָן, עַד שֶׁיַּעֲשֶׂה אוֹתָן דָּמִים.
The following rules apply when a person makes a loan of produce without establishing a financial equivalent, and it decreases in value. The borrower must return the measure or the weight of the fruit he borrowed.וְאִם לָוָה, וְלֹא עָשָׂה אוֹתָן דָּמִים, וְהוּזְלוּ - מַחֲזִיר לוֹ פֵּרוֹת בַּמִּדָּה שֶׁלָּוָה מִמֶּנּוּ אוֹ כַּמִּשְׁקָל.
If they increased in value, the lender may take only the amount they were worth at the time of the loan.13וְאִם הוּקְרוּ, נוֹטֵל דָּמִים שֶׁהָיוּ שָׁוִין בִּשְׁעַת הַהַלְוָאָה.
Even if a person possesses that type of produce, or the market price had already been established,14 it is forbidden to make a loan of produce that must be repaid on a specific date.15 Instead, the loan must be made without any stipulation, and it can be repaid whenever the borrower desires to repay it.אַף עַל פִּי שֶׁיֵּשׁ לוֹ מֵאוֹתוֹ הַמִּין אוֹ שֶׁהָיָה הַשַּׁעַר קָבוּעַ בַּשּׁוּק - הֲרֵי זֶה אָסוּר לִלְווֹת פֵּרוֹת בְּפֵרוֹת, עַד זְמַן קָבוּעַ; אֶלָא לֹוֶה סְתָם, וּפוֹרֵעַ בְּאֵיזֶה זְמַן שֶׁיִּפְרַע.
3A person should not tell a colleague: “Lend me a kor of wheat and I will return a kor to you at the time when wheat is brought to the granaries.”16 He may, however, tell him: “Lend me wheat until my son comes, or until I find the key to my storehouse.”17גלֹא יֹאמַר אָדָם לַחֲבֵרוֹ 'הַלְוֵנִי כּוֹר חִטִּים וַאֲנִי מַחֲזִיר לְךָ כּוֹר לַגֹּרֶן'; אֶלָא אוֹמֵר לוֹ 'הַלְוֵנִי עַד שֶׁיָּבוֹא בְּנִי אוֹ עַד שֶׁאֶמְצָא הַמַּפְתֵּחַ'.
4The following rules apply if a person lent out produce until a fixed date:18 If the produce diminished in value, the borrower should return the produce at the time set. If the produce increased in value, the borrower should pay him the money that it was worth at the time of the loan.19דלָוָה פֵּרוֹת עַד זְמַן קָבוּעַ: אִם הוּזְלוּ, מַחֲזִיר לוֹ פֵּרוֹת בַּזְמַן שֶׁקָּבַע; וְאִם הוּקְרוּ, נוֹתֵן לוֹ דָּמִים שֶׁהָיוּ שָׁוִין בִּשְׁעַת הַהַלְוָאָה.
5A person may lend wheat to his sharecroppers to be used as seed, in return for wheat to be paid back after the harvest. This applies both before the sharecropper enters the field20 and after he entered the field.המַלְוֶה אָדָם אֶת אֲרִיסָיו חִטִּים בְּחִטִּים לְזֶרַע, בֵּין קֹדֶם שֶׁיָּרַד הָאָרִיס לַשָּׂדֶה בֵּין אַחַר שֶׁיָּרַד.
When does this21 apply? In a place where it is customary that the sharecropper supplies the seed for the crops. For the owner of the field has the right to remove the sharecropper from the field whenever he does not supply it.22בַּמֶּה דְּבָרִים אֲמוּרִים? בְּמָקוֹם שֶׁנָּהֲגוּ שֶׁיִּתֵּן הָאָרִיס אֶת הַזֶּרַע, שֶׁהֲרֵי בְּיַד בַּעַל הַקַּרְקַע לְסַלְּקוֹ, כָּל זְמַן שֶׁלֹּא נָתַן.
Different laws apply in places where it is customary for the owner of the field to provide the seed.23 If the sharecropper did not enter the field yet, it is permitted for the owner to lend wheat for wheat to be returned in the future, for he still has the prerogative of removing the sharecropper from the field.24 Thus, when the sharecropper entered the field, he entered with the intent of returning the wheat the owner lent him.אֲבָל בְּמָקוֹם שֶׁדֶּרֶךְ בַּעַל הַקַּרְקַע לִתֵּן אֶת הַזֶּרַע - אִם עֲדַיִן לֹא יָרַד הָאָרִיס, הֲרֵי זֶה מֻתָּר לְהַלְווֹתוֹ חִטִּים בְּחִטִּים; שֶׁעֲדַיִן יֵשׁ לוֹ לְסַלְּקוֹ, נִמְצָא בְּעֵת שֶׁיָּרַד לַשָּׂדֶה יָרַד עַל דַּעַת שֶׁיַחֲזִיר לוֹ חִטִּים שֶׁהִלְוָהוּ.
If, however, the loan was made after the sharecropper entered the field, since the owner can no longer have him removed, he is like any other person.25 It is forbidden to lend him wheat for seed in return for wheat to be paid back at a later date.26 He may, however, lend him wheat according to its market value if he does not make any stipulations.27אֲבָל אַחַר שֶׁיָּרַד לַשָּׂדֶה, הוֹאִיל וְאֵינוֹ יָכוֹל לְסַלְּקוֹ - הֲרֵי הוּא כְּכָל אָדָם, וְאָסוּר לְהַלְווֹתוֹ חִטִּים בְּחִטִּים לְזֶרַע, אֲבָל מַלְוֵהוּ סְתָם עַל שַׁעַר שֶׁבַּשּׁוּק.
6A loan may not be repaid with a loan of produce. To explain: A person owed a colleague money. The lender told the borrower: “Give me my money, because I want to purchase wheat with it.” The borrower responded: “Go out and establish the money I owe you as a debt of wheat according to the present market price.” If the borrower possesses an equivalent quantity28 of wheat, this is permitted.29 If, however, he does not have that type of produce, this is forbidden.ומִי שֶׁהָיָה נוֹשֶׁה בַּחֲבֵרוֹ מָעוֹת, וְאָמַר לוֹ 'תֶּן לִי מָעוֹתַי שֶׁאֲנִי רוֹצֶה לִקַּח בָּהֶן חִטִּים'. אָמַר לוֹ 'צֵא וַעֲשֵׂה אוֹתָן עָלַי כַּשַּׁעַר שֶׁל עַכְשָׁו, וְיִהְיֶה לְךָ אֶצְלִי חִטִּים בְּהַלְוָאָה': אִם יֵשׁ לוֹ חִטִּים כְּשִׁעוּר מְעוֹתָיו, מֻתָּר; וְאִם אֵין לוֹ אוֹתוֹ הַמִּין, הֲרֵי זֶה אָסוּר.
For our Sages said that it is permitted to place an order based on a commodity’s market price, even though the seller does not possess any of that commodity, only when the purchaser is paying money for the acquisition. It is, however, forbidden to transfer a debt of money into a debt of produce unless the borrower possesses the produce.30שֶׁלֹּא אָמְרוּ חֲכָמִים שֶׁמֻּתָּר לִפְסֹק עַל שַׁעַר שֶׁבַּשּׁוּק, אַף עַל פִּי שֶׁאֵין לוֹ כְּלוּם מֵאוֹתוֹ הַמִּין, אֶלָא בְּנוֹתֵן מְעוֹתָיו לִקְנוֹת בָּהֶן; אֲבָל הָרוֹצֶה לְהַעֲמִיד הַלְוָאָתוֹ עַל גַּב הַפֵּרוֹת - אָסוּר, עַד שֶׁיִּהְיוּ לוֹ פֵּרוֹת.
The concept can be extended when, in the above situation, the borrower did possess wheat and the debt was transferred into a debt of wheat. Similar rules apply if afterwards the lender comes and tells him: “Give me the wheat, because I want to sell it and use the money to purchase wine,” and in response, the borrower tells him: “Go out and consider the debt as a debt of wine, according to the present market price of wine.” If he possesses wine, it is permitted and it is considered as if he owes him wine. If he does not possess wine, it is forbidden.הָיָה לַלֹוֶה חִטִּים, וְעָשָׂה הַלְוָאָתוֹ עָלָיו חִטִּים, וּבָא אַחַר זְמַן וְאָמַר לוֹ 'תֶּן לִי חִטַּי שֶׁאֲנִי רוֹצֶה לְמָכְרָן וְלִקַּח בִּדְמֵיהֶן יַיִן', אָמַר לוֹ 'צֵא וַעֲשֵׂה אוֹתָן עָלַי יַיִן כַּשַּׁעַר שֶׁבַּשּׁוּק עַתָּה': אִם יֵשׁ לוֹ יַיִן, הֲרֵי זֶה מֻתָּר וְנַעֲשָׂת הַלְוָאָתוֹ אֶצְלוֹ יַיִן; וְאִם אֵין לוֹ יַיִן, אָסוּר.
If the borrower did not possess the commodity desired, but nevertheless, transgressed and transferred the debt into a debt of that commodity, he is not required to pay the debt in the commodity. Even though he did purchase the commodity afterwards, he should pay the lender the money he lent him.31הֲרֵי שֶׁלֹּא הָיָה לוֹ, וְעָבַר וְהֶחֱזִיר הַהַלְוָאָה פֵּרוֹת, אַף עַל פִּי שֶׁקָּנָה פֵּרוֹת אַחַר כָּךְ - אֵינוֹ חַיָּב לִתֵּן לוֹ פֵּרוֹת, אֶלָא נוֹתֵן לוֹ מָעוֹת שֶׁהִלְוָהוּ.

Quiz Yourself on Malveh veLoveh - Chapter 10

Footnotes
1.

See Chapter 9, Halachah 1.

2.

If, however, a time when the produce must be returned is established, the loan is forbidden, as stated in the following halachah.

3.

With this phrase, the Rambam excludes a market price in villages that fluctuates, as stated in Chapter 9, Halachah 4.

4.

And thus there is a certain resemblance to a loan at interest, for the lender received something of greater value for his loan.

5.

Note the Siftei Cohen 162:10, which states that this law applies even when the borrower does not have the cash on hand to purchase the produce.

6.

The rationale is that although a formal transfer of ownership was not made, it can be said that the lender acquired the produce and that it increased in value while it was in the lender's possession. Although this is a legal fiction - and even on that level, not entirely correct, as reflected in the subsequent clause - our Sages nevertheless permitted such a transaction. Since there is no Scriptural prohibition involved, they did not enforce the safeguard they established when there was plausible vindication for the loan.

7.

It is not permitted, however, to specify a date when the produce is due to be repaid, as stated in the conclusion of the halachah.

8.

The rationale is that he is allowed to borrow the first se’ah because of the se’ah he possesses. After he borrowed one se’ah, he has two se’ah, and so he can borrow two se’ah against them. This pattern can be continued to include any amount of produce. Again since there is no Scriptural prohibition, the Sages were lenient (Maggid Mishneh).

9.

I.e., the produce that the borrower receives as a loan may be far more than the amount he possesses.

10.

See the Siftei Cohen 162:9, which writes that if the two principals know that a market price was established, it is acceptable even when they do not know the price itself.

11.

Lest the price rise and the transaction resemble interest. The rationale - is that the pattern of the increase and decrease of commodities is generally foreseeable. One can assume that until the harvest, the price will be high and after the harvest, the price will be low. Hence, by specifying a date, the lender will pick one that will enable him to lock in a profit. Even though the borrower may repay the debt before it is due, it is unlikely that he will do so (Maggid Mishneh).
The Ra’avad differs with this ruling and maintains that as long as the person possesses the produce or a market price is established, the loan is permitted, even if a specific date is set. The Maggid Mishneh refutes that argument, stating that if this was the case, the Mishnah (Bava Metzia 5:9; see the following halachah) would not have to state explicitly that it is permitted to give a loan of produce until one’s son returns. That would be obvious.
The Ramah (Yoreh De’ah 162:3, as interpreted by the Siftei Cohen 162:11) rules that a due date may be set as long as the borrower has the option of returning the wheat before the due date if he desires.

12.

I.e., if the market price for wheat was a zuz for each se’ah, taking a loan of wheat means taking a loan for a zuz.
The Shulchan Aruch (Yoreh De’ah 162:1) states that these laws apply not only to produce, but to merchandise and/or any article other than the prevailing local currency. The Shulchan Aruch (loc. cit.:2) also suggests an option for the lender: He or another person should give the borrower a small amount of produce. Once the borrower possesses this small amount, a loan of a much larger amount can be made.

13.

If, however, the borrower returned the produce after it increased in value, he may not expropriate the difference from the lender, because the prohibition against such loans is only “the shade of interest,” which is not expropriated through legal process (Chapter 6, Halachah 1; see Siftei Cohen 162:1).

14.

In which instances, it is permitted to make a loan of produce.

15.

As explained above, we assume that the lender has protected his own interests, and the price will rise by the time the debt is due. Hence, such a loan would resemble interest.

16.

I.e., he may not make a loan of produce with a set time for repayment that is in the distant future. This applies even if he possesses wheat at this time.

17.

I.e., a loan of produce may be made for a short time, provided the borrower possesses that produce. Significantly, the Mishnah (Bava Metzia 5:9) mentions the opinion of Hillel, who forbade one woman from borrowing a loaf of bread from a neighbor unless a financial equivalent was established. Although his opinion is not accepted as halachah, it does give us a barometer on the safeguards our Sages felt were necessary regarding at such loans.

18.

I.e., in violation of the prohibition mentioned in Halachah 2.

19.

Thus, in neither of these situations will the lender have profited.

20.

The term “entered the field” as used in this halachah refers to beginning to work the field and thus establishing his rental of the field as an unalterable agreement.

21.

I.e., that the owner can still give a loan after the sharecropper took possession of the field.

22.

Even though the sharecropper has entered the field, since he has not supplied the seed, he is not fulfilling his portion of the agreement. Therefore, the owner has the right to re-negotiate the agreement.
In such a situation, providing the seed is not considered to be a loan, but rather is leaked upon as part of the sharecropping agreement. For example, if the sharecropper borrowed five se'ah of wheat, instead of being obligated to pay the owner 25 se'ah, as the other sharecroppers are, it is as if this sharecropper agreed to pay 30 se'ah. This is permitted because it is considered part of the rental agreement and not a loan (Kessef Mishneh).

23.

And the owner wanted to depart from the local custom and require the sharecropper to provide the seed.

24.

I.e., the owner is still able to negotiate with the sharecropper and make any demands he desires. If the sharecropper isn't happy with them, he can seek another field.

25.

I.e., we are speaking about a situation where the rental agreement was already finalized and the owner was obligated to supply the seed. Nevertheless, he sought – and for some reason, the sharecropper agreed - to have the seed he provided considered to be a loan, and not his responsibility (Kessef Mishneh).

26.

Since the sharecropper agreed to repay the debt at the time of the harvest, a date for repayment has been established. Hence, the loan is forbidden, as stated in Halachah 2.

27.

As is any other person, as stated in Halachah 1.

28.

In Halachah 2, leniency was granted even when the borrower possessed only a small amount of produce. Here, by contrast, he must have an amount equivalent to the debt. The rationale is that here a sale is involved, and the reckoning must be exact (Siftei Cohen 163:2).

29.

Even though the price of wheat rises and the lender profits on the transaction.
The Ramah (Yoreh De’ah 163:1) states that we accept the borrower’s word if he says he possesses the wheat, and we do not require him to supply proof.

30.

The Beit Yosef (Yoreh De’ah 163) rules that this prohibition applies even when the borrower possesses the money with which he could purchase the produce.

31.

The rationale is that since the transfer into the commodity is considered to be “the shade of interest,” the borrower is not required to pay it, as stated in Chapter 4, Halachah 6 (Maggid Mishneh).

The Mishneh Torah was the Rambam's (Rabbi Moses ben Maimon) magnum opus, a work spanning hundreds of chapters and describing all of the laws mentioned in the Torah. To this day it is the only work that details all of Jewish observance, including those laws which are only applicable when the Holy Temple is in place. Participating in one of the annual study cycles of these laws (3 chapters/day, 1 chapter/day, or Sefer Hamitzvot) is a way we can play a small but essential part in rebuilding the final Temple.
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The text on this page contains sacred literature. Please do not deface or discard.
Vowelized Hebrew text courtesy Torat Emet under CC 2.5 license.
The text on this page contains sacred literature. Please do not deface or discard.