Two Contradictory Rabbinic Enactments?

In this week’s Rambam, we are introduced to a curious rabbinic enactment, which, in turn, led to the introduction of a second enactment designed to protect the first. In fact, this first enactment actually circumvents a biblical law.1 With this innovation, the rabbis fundamentally changed the way the sale (of a movable object) is actuated:

According to Scriptural Law, both livestock and other movable property are acquired by the payment of money. Once the purchaser pays money, neither he nor the seller can retract. Our Sages, however, ordained that movable property should be acquired only through lifting up the article (hagbahah) or pulling (meshichah) an article that is not commonly lifted up.2

In other words, biblically speaking, a person acquires an article with the transfer of funds. The rabbis rescinded by only allowing the sale to be final once the item had actually changed hands.

The reasoning (as explained in Halacha 5) is as follows: if a sale were considered to be final after the transfer of funds but before the buyer takes actual physical ownership, then the seller would have no incentive to protect any goods still physically in his property from damage, since they no longer belong to him. In many cases, however, there may be a delay between when the money changes hands and when the goods actually leave the property of the seller. By delaying the sale, this concern is mitigated.

The Unintended Consequence

However, this led to a new issue. Since a sale is no longer considered final after payment is disbursed, either party would have the ability to renege on the deal. Going back on one's word and canceling a sale would obviously lead to a feeling of uncertainty regarding any sale, whenever the handover of goods is not immediate.

The rabbis strongly discouraged this, calling anyone who reneged a person who “did not act in a Jewish manner.” Additionally, they instituted that any individual who reneges on a transaction after the transfer of funds receives an actual admonition by a court. The one who reneged, be it the buyer or the seller, is taken to court and cursed, with a “mi shepara” (He who exacted retribution) as follows:

May He who exacted retribution from the generation of the flood, the generation who were dispersed, the inhabitants of Sodom and Amorah, and the Egyptians who drowned in the sea, exact retribution from a person who does not keep his word.3

Is the Curse Actually Administered?

These are the broad terms of this injunction as codified by Maimonides, based on the Mishnah and Talmud in Tractate Bava Metzia.4 There is, however, some discussion regarding the details of this admonishment. The sages Abaye and Ravah disagree regarding exactly how this admonition plays out. In Abaye’s opinion, we merely inform the individual prior to him reneging, “Beware of what punishment is in store for one who reneges, etc.” Ravah disagrees, maintaining that we actually curse him with the above statement.

Abaye brings proof to his position from the verse, “Neither shall you curse a prince among your people,”5 which (as Rashi explains) is applied to the entire Jewish nation, implying that there is a prohibition against cursing a fellow Jew. Ravah counters that anyone who goes back on one’s word is excluding oneself from the Jewish community.

This leads us to a dispute among the Rishonim (early commentators): Is the language of the admonition in second or third person? According to Maimonides and others6 the language of this admonition is in third person, “May He… exact retribution from a person who does not keep his word.” The Rosh, however, states that the language is in second person, “May He… exact retribution from you, if you do not keep your word.”7 Rabbenu Chananel writes that we actually use the person’s name in the curse.8

It may sound like this discussion hinges on whether the final law is in accordance with Abaye or Ravah. If the final law follows Abaye, then it is understood why this injunction is only uttered in third person, since we do not want to actively curse another Jew. If, however, the law follows Ravah, then since this individual has not acted as a Jew should, there is no problem with administering a curse, and therefore it may be uttered in second person or even with the individual's name.

This, however, is clearly not the case because Maimonides and the author of the Shulchan Aruch (The Code of Jewish Law) who both write that the curse is uttered in third person — also hold that the final law is in accordance with Ravah, thus negating the reason it would be said in third person as based on Abaye’s opinion.

However, we may suggest that the fact that Maimonides and the Shulchan Aruch chose the third person may still be tied to the opinion of Abaye. Notwithstanding that they rule in accordance with Ravah, it can be argued that there is no issue to curse such a fellow, as he has excluded himself from the congregation of Jews. Still, as a nod to the opinion of Abaye who believes that there is still a prohibition to curse a fellow Jew, Maimonides and the Shulchan Aruch restrain the curse by only administering it in third person. (It must also be noted that the language of the Mishnah9 is in the third person, which is perhaps the main reason Maimonides and the Shulchan Aruch use this language.10)

Are These Enactments Contradictory?

These two enactments might seem to have different aims, or may even be opposites (the first, by delaying the sale, opens up the possibility for either party to retract, and the second imposes a harsh curse to strongly discourage either party from reneging). When we look at the full picture, we see that they in fact complement each other. The purpose of both is to protect commerce, first by making sure the buyer has peace of mind regarding goods that are not yet in his property. The second establishes a certain level of trust regarding a sale that has not been completed.

Did This Begin as an Actual Enactment?

If we examine the description of this law in the Mishnah, we discover an interesting difference from how it is discussed later in the Talmud. The Mishnah states as follows:

If [the buyer gave the seller] money but did not yet pull produce from him, he can renege on the transaction. But the Sages said: He Who exacted payment from the generation of the flood, the generation who were dispersed, will exact retribution from a person who does not keep his word.

It seems clear from this Mishnah that no action was actually taken. It sounds very much like the Sages are simply predicting what will happen to such a person. However, when this section of the Mishnah is discussed by the Talmud11 (quoted above), the Amoraim (the Sages from the time of the Talmud), Abaye and Ravah, take for granted that some action is taken. The discussion is only on whether it is merely a warning or actually a curse. Both agree that the perpetrator is told something in the form of an admonishment.

The Rosh discusses this issue, concluding that the sages felt something more needed to be added to this law in order for it to have the desired effect.12 Abaye and Ravah disagree only in how far this is to be taken.

A Deeper Meaning

The Lubavitcher Rebbe, Rabbi Menachem Mendel Schneerson, of blessed memory, in his unique style, drew a lesson from this enactment in the service of our Creator. Talking on Shabbat Parshat Ki Teitzei, 5749 (1989), he invoked the idea (found in other places in chasidut13) that money is something drawn down from on high, a process initiated from above. Conversely, the act of actually taking possession of the item, by lifting or pulling it (hagbahah and meshichah) represents the work that we must accomplish in this world.

When a person is given the capabilities to affect real change in this world, i.e., when the “funds” from above are available, one might fail to actually take possession; the person fails in the execution of one’s mission to affect change in this world and thereby reneges on one’s part of the deal. Such a person, who claims that they cannot prevail against the forces of darkness in this world, is culpable to receive a “mi shepara” curse, since they have not acted “in a Jewish manner.” But, surely, when a person realizes that one is culpable to receive a “mi shepara,” this will invoke in a person the impetus to change one’s ways and to make sure to do all one can to create a true dwelling place for G‑d in this world.14