On Money and Monetary Acquisition—Halakhic Implications (Column 525)

With God’s help

Disclaimer: This post was translated from Hebrew using AI (ChatGPT 5 Thinking), so there may be inaccuracies or nuances lost. If something seems unclear, please refer to the Hebrew original or contact us for clarification.

In the previous column I described the development of commerce and the emergence of the idea of money as a process of abstraction, concretization, and abstraction again. From that I tried to understand the meaning of a loan as opposed to a deposit (concrete or abstract), and of acquisition by money (kinyan kesef) as opposed to acquisition by barter (kinyan chalipin). Finally, I used all this to explain the difference between a debt created by a loan and a debt of purchase price or wages, which were discussed in the columns before it. In this column I will point out several halakhic implications of the picture sketched in the previous column.

Money vs. Goods: Law and Philosophy

We saw that there is a difference between money and goods. With goods, everything begins with use, and value is determined by that use. A hammer, a book, or a chair has value derived from the uses we make of it. By contrast, with money the value is set arbitrarily (by convention), since it has no use beyond serving as a medium of exchange. In halakhic language, one can say that goods have “body and fruits” (guf ve-peirot): the object itself and the uses made of it. These two are not necessarily dependent on one another, since you can own the object while granting usage rights—or even ownership of the uses (body to the fruits)—to someone else.[1] By contrast, money has only “fruits” and no “body.” Ownership of money is meaningful only in the sense of using it as consideration in transactions. One cannot lend money as a borrowable chattel (and not for nothing did we see in the previous columns that a loan is a gift). In philosophical terms, the same point can be expressed differently: tools/goods have matter and form, whereas money has only form. In this terminology, money is pure form, akin to a Platonic idea. More precisely, the idea is the value, and this is realized in money, which has nothing of its own. Money is a concrete expression of value—abstract things like worth or price.

Sources and Implications: Barter with Produce and with Coins

This is apparently the intent of the Gemara, Bava Metzia 44b–45a:

It was stated: Rav and Levi—one said that coin (matbea) effects acquisition by barter (chalipin), and one said coin does not effect acquisition by barter. Rav Pappa said: What is the reason for the one who says coin does not effect barter? Because one’s mind is on the form (tzurta), and the form is destined to be nullified.

Rav and Levi dispute whether one can acquire a coin (i.e., money) by chalipin. The Gemara explains the view that money does not effect chalipin by saying that a coin is “form,” and form cannot be acquired by chalipin. On the literal level, the coin is considered “form” because its essence is not the metal it is made of, but the form stamped on it (by the king) that gives it value. But when we examine the essence of the matter, it is natural to expand the meaning of “form” to its philosophical sense: money has only form and no matter. It has nothing of its own; its entire significance is the convention that grants it value (or sees it as the embodiment of value).

We can now understand why money does not effect chalipin. We saw that chalipin is a natural exchange acquisition, originally done only between goods (tomatoes for chairs). That means that in chalipin one swaps body for body, and the ownership of the tomatoes and of the chairs is exchanged between the parties. By contrast, with money there is no defined ownership of a “body,” because money has no body (nor anything like a body). Therefore, you cannot carry out a body-for-body exchange with it. Hence the conclusion that only kinyan kesef can acquire and convey money, because kinyan kesef is defined abstractly for abstract things. It is the exchange of value (an abstraction of goods) for value (the abstract “object” of value embodied in money). Something that is wholly abstraction can only be acquired in an abstract manner and not via the natural methods of trade. In practice, the halakhah rules like the opinion that money does not effect chalipin (see Bava Metzia 46a), i.e., kinyan chalipin cannot operate on value, only on body; thus that which has no body cannot participate in chalipin.

This may also underlie the amoraic dispute about chalipin with produce, as found in Bava Metzia 46a: Rav Sheshet holds that one can acquire produce by chalipin, while Rabah (or Rav Nachman) holds not. Why would produce not effect chalipin? If we consider the essence of produce, we will find it differs from a tool like a hammer. A hammer can be used and then returned as is to its owner. Therefore, with a hammer we can separate between body and fruits (=uses), or between matter and form. But with produce, its use—eating—consumes it (just like using a coin to buy something), and it is therefore difficult to speak of ownership of the body of the produce independently of its uses. I cannot grant someone use of produce while retaining ownership of its “body,” for such ownership would be empty of content. Whoever can use it is, at least de facto, also the owner of its “body.”[2] There is thus room to view produce as pure form, precisely like coin, since in both the use consumes them, and therefore they have form without matter. Not for nothing are the uses of tools, a house, or a field called in halakhah the “fruits” (peirot) of the thing. A fruit is an example of something that is pure use (without body). This may be why, according to Rav Nachman, produce does not effect chalipin. Just like a coin, handing it over transfers value rather than body.[3]

The conclusion is that chalipin can be done only with tools/utensils, not with money or food. From here arises the halakhah that, unlike kinyan kesef—which requires that the money be worth at least a perutah—chalipin does not require the utensil given to be worth a perutah. The reason is that in kinyan kesef, value must be transferred, and less than a perutah is not considered value. But in chalipin what is given is body, not value; therefore even if the utensil is not worth a perutah, it does not trouble us. After all, we transferred here the body of a utensil, and that suffices to define an exchange.[4]

Sources and Implications: Chalipin for Betrothing a Woman

This framework opens a window to understanding a puzzling law regarding betrothing (kiddushin) a woman by chalipin. The Gemara in Kiddushin 3a–b states:

[…] And according to Rav Huna, who says that chuppah effects acquisition by a kal va-chomer, what does this come to exclude? To exclude chalipin. You might have thought: since we learn “taking, taking” (kicha, kicha) from the field of Ephron—just as a field is acquired by chalipin, so too a woman might be acquired by chalipin—therefore it teaches us not so. And you might say: indeed so—let there be chalipin (effective) for less than a perutah; but a woman is not acquired by less than a perutah.

The Mishnah says that a woman is “acquired” in three ways (money, document, and intercourse) in order to exclude chalipin. Why can’t a woman be betrothed by chalipin? Rashi at the beginning of 3b explains:

She does not acquire herself—because it is demeaning to her; therefore the law of chalipin is nullified for kiddushin. And even with a utensil worth a perutah, if he gives it to her in the language of chalipin, it is nothing, until he gives it in the language of acquisition, taking, or kiddushin.

He explains that chalipin can be done for less than a perutah, and therefore kiddushei chalipin are demeaning to the woman (even if done with a utensil worth a perutah). This is beneath her dignity. The rishonim understood that Rashi sees this as a rabbinic rule, and that in principle one could have betrothed by chalipin. But even if Rashi meant it as a Torah-level rule, it is clear from his words that the defect is due to the woman’s will/dignity and not essential. In principle, one could have betrothed by chalipin were it not demeaning to her.

By contrast, some rishonim disagree with Rashi and read: “and a woman is not acquired for less than a perutah” (without “herself”), i.e., the defect is essential and not due to the woman’s will. So, for example, Tosafot s.v. “ve-ishah” there bring Rabbenu Tam, who differed from his grandfather:

Therefore Rabbenu Tam concludes that we read: “for less than a perutah she is not acquired” and do not read “herself,” for the matter does not depend on her insistence, but rather thus: since we learn kicha kicha from the field of Ephron, where “money” is written, and less than a perutah is not called “money.”

Since we learn the betrothal of a woman from the field of Ephron, it is clear that this cannot be done with less than the value of a perutah.

But one of Tosafot’s questions on Rashi is: why not betroth a woman by chalipin with a utensil that is in fact worth a perutah? Yet Rabbenu Tam’s answer faces the same question. Tosafot note this and point out that this is precisely the Gemara’s question:

And the meaning is: and say likewise that a woman could be acquired by chalipin when those chalipin are worth a perutah—akin to the “money” in the verse—more so than a document worth a perutah (for the document need not be worth a perutah), as we say in Gittin 20a that if it was written on items forbidden for benefit it is valid. But chalipin worth a perutah resemble money. And the Gemara answers: chalipin can be done for less than a perutah, and therefore they are not of the category of money, but a different kinyan.

The Gemara explains that we learn from the field of Ephron that a kinyan which can be done with less than a perutah does not apply to a woman—even if in this case one uses a utensil worth more than a perutah. The fact that chalipin can be done with less than a perutah indicates that it is a different kinyan than kinyan kesef; hence it cannot be learned from the field of Ephron. Consequently, one cannot betroth a woman by chalipin, even if using a utensil worth more than a perutah. At first glance this is vague: in what sense is chalipin a different kinyan than kinyan kesef? Why is the possibility of doing it for less than a perutah an indication? Note that a field can be acquired both by chalipin and by money (see Tosafot there), i.e., the field of Ephron could have been bought with chalipin.

In light of what I have written here, the explanation is very simple: chalipin is indeed a different kinyan than kinyan kesef. In kinyan kesef one exchanges value for value; in kinyan chalipin one exchanges body for body. When a man betroths a woman, he does not acquire her, certainly not her body. Kiddushin is not a sale but a legal act. Therefore, kinyan chalipin cannot operate there, since there is no exchange of body for body. One might ask: why can kinyan kesef operate for kiddushin? The husband is not acquiring the woman’s value either, so how can exchange of value for value work here?

In an article I devoted to this, I explained that the derivation from the field of Ephron teaches that the legal instantiation of kiddushin is performed like the acquisition of a field—but not because one “buys” a woman as one buys a field. When the Mishnah says “a woman is acquired,” it means that a legal status (chalut) of kiddushin is effected upon her by means of a kinyan-act, not that she is actually purchased. More generally, I explained there that, contrary to what many think, in halakhah a “kinyan-act” is not necessarily an act that creates ownership; it is any act that instantiates a legal status. Ownership is only one possible result of a kinyan-act. A kinyan-act is also required to validate a contract (to strengthen the matter—le’alumei milta), even where no one owns anything. Thus, the derivation from the field of Ephron only tells us that the legal act that creates ownership of a field can also create the status of kiddushin for a woman. But there is no essential similarity between these contexts. In kiddushin we are dealing with a symbolic act that effects a legal status, and by definition this belongs to the legal sphere. Therefore it can be effected only by kinyan kesef. Chalipin belongs to the natural sphere, and although a field is acquired by chalipin, that cannot be learned for kiddushin. Chalipin can only transfer ownership of objects, not create abstract legal statuses. The field of Ephron specifically was acquired with money and not by chalipin, and kiddushin is learned from the field of Ephron—not from field acquisitions in general.

In this connection I note that in column 523 (n. 1) I cited R. Chaim Ozer (as quoted in Afikei Yam I, end of §16—the author was his brother-in-law). He addresses a dispute among later authorities regarding kinyan kesef for land: how should we understand the acquisitive act? The Sema holds that remittance of the consideration itself effects the acquisition (in yeshivish jargon, the money transferred in kinyan kesef is “money of value”). The Taz, however, argues there is no connection: the acquisition is effected by an additional perutah, whose transfer is a symbolic legal act that creates the acquisition. Beyond that perutah, one must also give the seller the value of the goods. In yeshivish terms, according to the Taz the money transferred for kinyan kesef is “money of acquisition,” not “money of value.” R. Chaim Ozer argues that with respect to kiddushei ishah even the Sema would agree that the money is “money of acquisition” and not “money of value” (hence in kiddushin there is no need for the “returnable money.” See those columns). The reason is that in kiddushei ishah one is not paying her “value,” since one has not bought her or her value. Handing over the money or ring in kiddushin is a symbolic legal act that effects the legal status of kiddushin, not the purchase of an item or its value; therefore there is no transfer of value. The fact that kiddushei kesef is learned from purchase of a field is only a formal derivation; there is no essential similarity. One must hand the woman money in order to betroth her, but this is not payment of consideration for anything, and thus there is no need for “returnable money” (money whose transfer creates a reciprocal lien). For the same reason explained here, kiddushin can be effected only by kinyan kesef and not by chalipin.

How Does Kinyan Kesef Operate?

Up to now we saw that kinyan chalipin is a natural exchange—goods for goods. I stated that kinyan kesef, by contrast, is defined in the legal sphere and depends on legal regulation. Later authorities explain that I give the seller “value” and receive in return the value of the item, and thereby I become its owner.[5] We must now examine how the law defines or regulates kinyan kesef.

There is indeed an exchange of goods for money, but it is not an exchange in the natural sense, for the two sides are not symmetrical: one is pure value and the other is a body that also has value. Therefore, in kinyan kesef—as distinct from chalipin—there is a distinction between “buyer” (who takes the goods and pays money) and “seller” (who gives goods and receives money). In chalipin there is no buyer and seller, since both sides give goods and receive goods; their statuses are completely symmetrical. In the previous column I explained that, for this reason, in kinyan kesef the law must define precisely how it is performed, when it is completed, the difference between transferring the money and transferring the goods, and that there are cases in which it is difficult even to define which side is the buyer and which is the seller (or, really, the difficulty is to define which side is the money and which is the goods in such a transaction).

Pulling (Meshikhah) and Money in Acquiring Movables

For real estate, one of the modes of acquisition is money, i.e., giving the money transfers ownership of the land from seller to buyer (above we saw the dispute whether this is “money of acquisition” or “money of value”). With movables the situation is more complex.

The Mishnah, Bava Metzia 44a, states the principle:

Movables acquire the coin; coin does not acquire the movables. (This is the rule:) all movables acquire one another. How so? If he pulled produce from him but did not give him money, he cannot back out; if he gave money but did not pull produce, he can back out. But they said: “He who exacted payment from the generation of the Flood and the generation of the Dispersion is destined to exact from one who does not stand by his word.”

In chalipin, once one party has “pulled” his item, the transaction is completed, and the goods are acquired to both sides. It does not matter who did the pulling, since—as we saw—in chalipin there is no buyer and seller, and both sides have exactly the same status. But in kinyan kesef there is a built-in asymmetry, and the principle says that pulling the goods finalizes the deal, i.e., it acquires the goods for the buyer and the money for the seller. But pulling the money does not finalize the deal and does not create acquisition; the parties are only morally bound to their word.

In Bava Metzia 47b there is a dispute between R. Yochanan and Reish Lakish:

R. Yochanan said: By Torah law, money acquires; and why did the Sages say that pulling acquires? A decree lest the seller say, “Your wheat burned in the attic.” Ultimately, the one who set the fire must pay! Rather, a decree lest a fire fall by accident: if you establish [the goods] in the buyer’s domain, the seller will risk himself and exert himself to save them; if not, he will not. Reish Lakish said: Pulling is explicit in the Torah.

According to R. Yochanan, by Torah law there is kinyan kesef for movables as well, but the Sages annulled it and required pulling the item to acquire it. The concern was that the item may be damaged and the seller will not guard or try to save it, since, if it already belongs to the buyer, the seller can say, “Your wheat burned in the attic” (your problem). According to Reish Lakish, money does not acquire movables by Torah law, and pulling is required.

Note that the Gemara assumes that “your wheat burned in the attic” is irrelevant with regard to money but only to goods. The reason is simple: even if the seller had “acquired” the money that is physically in the buyer’s possession, still, if a fire breaks out there and the money in the buyer’s hands burns, the buyer’s debt to the seller remains, and he must still pay it. Apparently, unlike goods, “acquiring money” is essentially the creation of a debt, not that there is actual money owned by the seller.

In any case, it is agreed by both that, halakhically, once the goods are pulled, they are acquired to the buyer and the money to the seller. Note that the money is still physically in the buyer’s hands, since we are at the stage where only the goods have been pulled. What then does it mean that the money is “acquired” to the seller? What exactly does he own? It would be more precise to say that a debt is created toward him—i.e., from the moment the goods are pulled, the buyer becomes obligated to the seller for the agreed amount. Yet the Mishnah’s language is that the movables “acquire the coin,” i.e., something is acquired. Indeed, later the Mishnah speaks in terms of being able or unable to back out, and not strictly in terms of acquisition. One could understand that as meaning that the money is not actually acquired, but rather a debt is created.

Rashi on the Mishnah indeed explains the principle in that way:

“The gold acquires the silver”—one who buys struck gold dinars for silver dinars, and gave him gold dinars: the pulling of the gold acquires the silver for the owner of the gold, and this one, upon receiving the gold dinars, becomes obligated to give him the silver dinars, and he cannot back out. But the silver does not acquire the gold: if he gave him the silver dinars first, he did not acquire, and either may back out—for silver coin is “money,” as it is readily spent; whereas a gold dinar is like other movables and produce, and money does not acquire until one pulls the movables; but the pulling of the movables does acquire, and neither can back out.

The Mishnah deals with exchanging silver and gold, and the claim is that in such a deal the gold is the “goods.” Therefore, pulling the gold acquires the silver, and not the reverse. The wording is that the silver is acquired. But immediately afterwards he writes: “this one, upon receiving the gold dinars, becomes obligated to give silver dinars and cannot back out.” There is no silver dinar that is owned by the seller; rather, a debt of the buyer to him is created.

The Gemara itself, after the dispute of Rav and Levi (45a), asks:

If so, does the gold “acquire” the silver? It should have said ‘obligates’!—Teach: the gold obligates [the silver].

In other words, we are dealing with an obligation and not actual acquisition.

And Rashi there:

“The gold acquires”—this implies that from now the silver is acquired to him wherever it may be, and the term “gold acquires” applies only where the thing is present and the one has exchanged this for that. But if it is as money—he pulls a gold dinar for twenty-five silver dinars—there is no silver acquired here; rather, the one who pulled the gold becomes obligated in money by that pulling. And thus should it have taught: the gold obligates the silver and causes the puller to be obligated in silver.

So, apparently, nothing is acquired; rather, the buyer becomes obligated to the seller for a sum of money.

Yet, as we saw in column 522, the Rambam apparently understands this way only regarding a sale price (mekach), not regarding a loan. In a loan a debt is created, but it is a debt in which the lender has nothing of his in the borrower’s possession—not even abstract value. It is a gift for which the Torah obligates giving a reciprocal gift. Only with a sale price—as in our Mishnah—does the seller actually “acquire” money that is in the buyer’s possession. Thus the Mishnah’s language is precise: it does not say the buyer undertakes an obligation; rather, the seller acquires the money. Other rishonim may have understood the loan similarly (or perhaps not), since they speak here of obligation instead of acquisition. Still, if there is a fire, the money burns wherever it physically is; thus the claim “your wheat burned in the attic” is not relevant to money. As we saw, the debt of a sale price is an abstract deposit, so the burning of the coins does not change anything with respect to it.

How Do We Define “Money” in Any Given Transaction?

This picture creates a legal need to define, in each transaction, which side is the “money” and which is the “goods.” In many cases this is simple, since “goods” are something we use, and “money” is pure form given only for its value (coins or notes). But in deals that exchange items of similar character—either both are money or both are goods—we still need to designate one side as money and the other as goods.

When exchanging goods, there is the option of defining it as chalipin (and then there is no need to define one side as money). Nevertheless, even there we must remember that in halakhah “equivalent to money” (shaveh kesef) is treated like money; hence, in principle, such a deal can be defined as kinyan kesef rather than chalipin. That requires us to define which of the two sides is “money” and which is “goods.” This issue is even more salient when exchanging money for money, as in the case of silver dinars for gold dinars, discussed in the opening mishnah of Perek HaZahav (Bava Metzia 44a). As noted, a coin is not acquired by chalipin, so exchanging silver for gold is necessarily kinyan kesef, not chalipin. But in such a kinyan we must define what is the “money” (in the Gemara’s Aramaic: the teva’a) and what is the “goods” (the peira). Here both sides are “money,” so how is the legal regulation of such a deal effected?

I will now discuss the two problems described: I will begin with exchanging goods that, nevertheless, is done by kinyan kesef, where the problem is: who is defined as money and who as goods, and why? Afterwards I will move to exchanging money for money, where we also need to define which side is money and which is goods.

A. Goods as “Equivalent to Money”

There are deals in which goods are exchanged, yet the deal is defined as kinyan kesef. There the question arises: how can we define in each such deal which is the money and which the goods? The difficulty is not that both sides are goods, for a good can also be “equivalent to money” and function as money. The difficulty is that this happens on both sides, blurring or erasing the difference between goods and money. It seems the matter is relative: what functions as goods in one deal will function as money in another, and vice versa (see, e.g., Shulchan Aruch, Choshen Mishpat §233:6, and more).

The conclusion is that, once we know that “equivalent to money” is treated as money, the definition of “money” cannot rely on pointing to a closed list of items that count as money. Money is not a single defined object (or set of objects). Its definition is context-dependent. The natural definition is: “goods” are what one wants; “money” is the value one gives in exchange for that. When a person buys a chair and pays 100 shekels for it, the buyer wants the chair and the seller receives money. One might think this is insufficient, since just as the buyer wants the chair, the seller wants the money—so who is the buyer and who is the seller? Perhaps both are buyers or sellers, depending on perspective.[6]

But that is not accurate. In such a case it is clear the deal was done for the sake of the chair, and the money is the consideration. The indication is that in place of this money the seller could have been given any other money or equivalent. But the buyer could not have been given “something else” in place of the chair, since the chair is the goal of the deal. Without the chair he would not enter this transaction. Thus, even in a goods-for-goods exchange we can define the side that functions as money (i.e., the good given as “equivalent to money”) and the side that functions as goods. If, for one side, it does not matter what he receives so long as it matches the value (and he would accept something else of equal value), he is the seller. The side that wants specifically the particular item is the buyer. We now illustrate with a few examples.

1. Paying with Shemitah Produce

The Mishnah, Shevi’it 8:5, rules that one may not pay wages with Shemitah produce—i.e., one may not give Shemitah produce as payment to a barber, bathhouse attendant, etc. The Chazon Ish (Shevi’it §13:12) asks: why do we assume the greengrocer is paying the barber with Shemitah produce? Let us say the barber is buying the produce and paying the greengrocer with his work. Then we would not be handing over Shemitah money to an am ha’aretz; rather, he is doing labor in exchange.

R. Shlomo Fisher z”l (in a lecture on the remission of debts) resolves that payment to a laborer (wages) is not a debt but a mitzvah. There is a mitzvah to pay for labor; hence it is clear that the payment here is the produce and not the labor. This is forced, since according to that, one could not effect kinyan kesef by an act of labor; yet we know one can betroth a woman through an act such as “dance before me.” That would imply that the woman is “taking” the man (since it says “when a man takes a woman,” not when a woman takes), that she gives him the kiddushin in exchange for the money, rather than taking the money in exchange for the kiddushin.

But on our approach there is no need for any of this. In the case described, it is clear that the produce is given as payment for the work, since the goal of the deal was the haircut or the bath, and the produce is given as value. The one bathing or getting a haircut could have paid with anything else, and the barber or bathhouse attendant would have no problem. Therefore, in such a deal the barber/bathhouse attendant is the “seller,” and the bather/haircut client is the “buyer.” True, if the situation were reversed—if someone seeks Shemitah produce and is willing to pay for it with a haircut—then the haircut would be the “equivalent to money,” and the produce would be the goods.

2. Wages of a Hired Laborer

In Shulchan Aruch, Choshen Mishpat §233, it is ruled that if one stipulates with a hired laborer that he will give him a lamb as payment, even if the laborer already worked, he did not acquire the lamb. There is an additional novelty: he need not give that lamb at all; he may pay with something else. That is, there is no kinyan here, and there is also no obligation to give specifically the lamb. Why? The Ketzot HaChoshen (§233:4) explains that the labor is “equivalent to money,” and money does not acquire movables; therefore the lamb is not acquired, nor is there a specific obligation. The Chazon Ish (Likutei Choshen Mishpat §9, and also Even ha-Ezer §44) asks: why not say the labor is “goods,” and the lamb is the payment for those goods? Then the labor would finalize the deal, and the lamb would be acquired against it.

But on our approach the matter is simple. Here, the lamb is being given as value, not as goods, since the goal of the deal is the labor. The lamb was merely agreed upon as the value to be given. It is therefore clear that the lamb serves here as “equivalent to money,” whereas the labor does not. But money is never acquired as an object; rather, a debt of value is created by the labor, and thus he may give something else of equal value in place of the lamb.

3. Conditioning on Food, Clothing, and Conjugal Rights

The Gemara, Ketubot 56a, states that according to R. Yehudah, when a man conditions his kiddushin upon there being no obligation of food, clothing, and conjugal rights, the condition is valid, since this is a condition with respect to monetary matters. The Rashba there writes that this applies only to food and clothing, but not to conjugal rights, which are bodily pain (tzara de-gufa) and cannot be waived. This is puzzling: conjugal rights are a benefit that has monetary equivalence; why can she not waive it? How is this different from “dance before me,” by which one can betroth?

On our approach, the explanation is simple. Conjugal rights here are not given as “equivalent to money,” but as an inherent obligation. Marriage obligates him to provide conjugal rights. True, conjugal relations are a benefit with monetary value; but the obligation itself is not an obligation to give a certain value that is discharged via conjugal relations. Therefore, the duty to provide conjugal rights is not a monetary obligation (“a matter of money”). By contrast, food and clothing are “value” alone; obviously, instead of giving her food and clothing he could give her their monetary value, and she would buy them for herself. Accordingly, conditioning on them is a condition concerning monetary matters.

4. Differences between Guardians (Shomrim)

One might wonder why a borrower (sho’el) is not considered a paid guardian (shomer sakhar): the borrower accepts strict liability (for oness) in return for the loan of the animal. How is this different from a finder of a lost article (shomer aveidah), who is considered a paid guardian because of “the coin of R. Yosef” (since if a pauper comes while he is occupied with the lost item, he is exempt from giving charity, as one engaged in one mitzvah is exempt from another)?

On our approach it seems that in a loan, clearly the “goods” are the borrowed cow, and the liability for accidents is not payment for goods but a legal obligation the Torah imposes on the borrower. In other words, it is not correct here to say that both sides “want” the deal. Only the borrower wants it (like a loan—an arrangement only the borrower desires), and the strict liability is merely a Torah requirement upon him.

The practical difference would be a case in which a person travels abroad and offers his friend the use of his car, so that he will guard it. According to what I have said, this is truly a paid-guardianship arrangement (the “wage” is the permission to drive), not a loan—since this is a deal both parties want.

So far we discussed kinyan kesef carried out in exchange of goods for goods, and we saw how to define the side that is “money” in such a deal. We now move to the second aspect of the problem: how to define money and goods in an exchange of money for money.

B. Exchanging Money for Money

A deal that exchanges money for money sounds odd. Why swap one thing for another identical thing? The whole point of money is that ownership of a specific coin—or a debt for a specific coin—is meaningless, since these are merely concrete embodiments of value (they have no body, only fruits). One might speak of making change, like exchanging a ten-shekel coin for single shekels; but the common case is exchanging one currency for another (shekels for dollars or vice versa), and that will be our topic here.

This is the subject of the opening Mishnah of Perek HaZahav. In its second half, the Mishnah presents the rule for kinyan kesef (that pulling the goods finalizes the deal) and for chalipin (that pulling either side finalizes the deal) and the “mi she’para” curse (when the buyer gives money but does not pull). But the Mishnah opens with the following:

Gold acquires silver, but silver does not acquire gold; copper acquires silver, but silver does not acquire copper; inferior coins acquire superior coins, but superior coins do not acquire inferior ones; a token (asimon) acquires coin, but coin does not acquire a token; movables acquire coin, but coin does not acquire movables.

The deal in question is gold against silver. These are two types of coins; therefore it is clear we are dealing with kinyan kesef (since coin is not acquired by chalipin). We must now define which is the money and which the goods, with the consequence being which one must be pulled to finalize the deal, and pulling which creates only “mi she’para.” When the Mishnah says “gold acquires silver, and silver does not acquire gold,” it means that in such a deal gold is the “goods” (peira) and silver coin is the “money” (teva’a).

Already here it is worth noting the Gemara’s terminology: “teva’a” and “peira” are both things not acquired by chalipin (coin and produce). Therefore, exchanging one for the other is necessarily kinyan kesef, not chalipin, and one must define which is money and which is goods. As stated, gold is defined as peira and silver as teva’a. Why did the Mishnah assign them thus?

The Gemara relates that Rebbe changed his view on this between youth and old age:

Rebbe taught his son R. Shimon: gold acquires silver. He said to him: Rebbe, in your youth you taught us “silver acquires gold,” and now in your old age you teach us “gold acquires silver”? In youth, what did he hold; and in old age, what did he hold? In youth he held that gold, being important, is money; silver, being less important, is goods; hence goods acquires money. In old age he held that silver, being more readily spendable (sharp), is money; gold, being less readily spendable, is goods; hence goods acquires money.

Two criteria are given for defining “money” in such a deal: importance (what is scarcer and more precious) and spendability/liquidity (what circulates more readily). In his youth Rebbe thought importance is determinative; thus gold, more important, is money. In his old age he thought liquidity is determinative; thus silver, more spendable, is money. So says the Mishnah, and so is the halakhah.

At first glance, these criteria do not connect to what we have seen thus far. We defined money as that which is given only for its value (hence it can be replaced by any equivalent). What do importance or liquidity express here? Liquidity is indeed closer to the essence of money, since money’s role is liquidity (as we described: closing commercial cycles). But importance seems unconnected.

In my understanding, this question confused some commentators who tried to extract from here a general definition of money. That is a mistake. The Mishnah and Gemara are not defining “money” universally. Its definition is clear and we have already seen it. But in the deals discussed here both sides meet that definition; hence the question arises: which shall we designate as money and which as goods? In such cases we need a side criterion—perhaps even an arbitrary one (though it is hard to think Rebbe would reverse himself if it were truly arbitrary)—to label one side as money and the other as goods. Therefore, importance or liquidity is proposed here; these criteria are relevant only to this specific type of deal, and nothing can be learned from them about the universal definition of money.

It may be that in his youth Rebbe thought such exchanges are usually made to obtain the more liquid thing (since the essence of money is liquidity), and therefore the goal of the deal is the money—so it should be treated as peira in such a deal. In his old age he understood that even if the goal is money, it remains “money.” And since liquidity is the essence of money, the more liquid side should be defined as teva’a (even when the aim is to obtain coin, the coin does not thereby become “goods”).

If so, Rebbe’s conclusion may indeed say something about defining money: ultimately, the more liquid thing is “money,” not the more “important.” Note that the definition I offered above—that what is given as value and can be replaced by something else of equal value is “money”—essentially means liquidity. Be that as it may, it is clear that here we are dealing with a special case, and the definitions given here are not necessarily the universal definition of “money” in every kinyan kesef.

The conclusion is that these definitions do not necessarily bind us. It is reasonable that even in such a deal, we can employ the general definition of money: define “money” as that which is given as value, and peira as the side that is the goal of the deal. Accordingly, if the holder of silver comes to the holder of gold seeking gold coins, then the goal is gold, and silver is the teva’a. But if the holder of gold wants silver coins—the definition is of course reversed.

One could say that the Sages wished to set a uniform criterion for such deals, because it is not always easy to determine the goal of the deal (sometimes both parties want the exchange), and not everyone is expert in these definitions. Therefore they set a criterion that would apply uniformly to exchanges of silver and gold: gold is peira, silver is teva’a. But from the poskim it appears they understood that this is not always binding. From their words it emerges that even in an exchange of coins we can use the general definition—i.e., define teva’a and peira by asking what is given as value and what is the objective of the deal. Only when the general definition is inapplicable do we resort to liquidity and importance. We will now see this briefly in the poskim (mostly based on the sugyot; for brevity I bring only the halakhic conclusions).

Thus writes the Shulchan Aruch, Choshen Mishpat §233:7:

They all have the law of “coin” with respect to other movables, and they are all [relative to] each other. For example, if he sold a gold dinar for a gold dinar, or a silver dinar for a silver dinar, or a copper dinar for a copper dinar—they have the law of coin.

We see that the goal of the deal can change the definition of teva’a and peira.

And in §233:4:

When does this apply? When he sells other movables for one of these metals. But one who sells coin for coin—the gold dinars with respect to silver coin are like goods.

Rema: And if he transferred (conveyed) the money as “payment”—without specifying those particular coins—once he pulled the gold, he becomes obligated to pay the money as he agreed (Tur). Likewise, copper coins are like goods with respect to silver coin. How so? If he gave him a gold dinar for twenty-five silver dinars—once he pulled the gold dinar, he becomes obligated to give the twenty-five silver dinars as agreed: if new, then new; if old, then old. But if he gave him twenty-five silver dinars for a gold dinar—he does not acquire until he takes the gold dinar.

The Sema (ad loc. §9) infers that the entire sugya deals with a coin-for-coin deal:

“With respect to silver coin …” Since [silver coins] are speedier and more readily spent than gold, coin of gold is called “goods” relative to silver, and likewise in all of the cases enumerated below: that which is speedier to spend is considered “coin” relative to the other which is less readily spent.

In this halakhah the Rema carefully notes that silver is teva’a only if he did not designate specific coins. The implication is that if he intends specifically those coins and not abstract value, then the coins are “goods,” not “consideration.” Indeed, the later authorities wonder about the Rema’s exact intent here. Thus the Sema in §10 (and similarly Netivot ha-Mishpat §12) writes:

“If he transferred the money”—so it should read. In old prints it says “And if,” which is a scribal error. The intent is to explain what the Mechaber wrote—that silver coin is acquired by pulling gold—applies only if he did not designate specific silver coins as “payment.” For the reason I wrote above (§7): if he designated specific coins against movables, the coin is not acquired by pulling the movables, for in such a case it has the status of chalipin.

From these later authorities we see that if he designated a particular silver coin in exchange for his gold (not as value, but as a specific concrete object), then the silver coin is also peira, and the deal is chalipin. In that case both sides are peira. We see that where it is clear what is peira and what is teva’a, we do not look to importance or liquidity. Those criteria arise only in doubtful cases. In other words, the entire discussion in the chapter addresses the pathological cases of coin-for-coin exchange, while the general foundation in ordinary deals is the aim and intent of the parties.

[1] In my article “On Deception (Geneivat Da’at) and Intellectual Property,” I argued that the halakhic principle that there is no ownership in something without substance pertains only to properties of tangible things (like the air of a courtyard, an apple’s scent, or a bee’s gaze). The claim is that ownership of the tangible thing entails ownership of its properties. There one cannot separate between the thing and its uses or properties (if you do not own the apple, you can have a right to smell it—since that is a right in the apple itself—but not ownership of the smell). But items without substance that are not appurtenant to tangible things (e.g., an idea or information) can be owned. And tangible properties can certainly be separated from the bearer of those properties (like the fruits of a tree, the use of a tool, or living in a house).

[2] This may depend on the question of whether one can betroth a woman with food that I receive as a guest at a meal. Ostensibly, the host allows me to eat his food but does not transfer ownership; thus it would be a case of usage permission without ownership of the body. Yet there are indeed opinions that in that case one can take the food and betroth with it. Why—if it is not the guest’s? The answer is that with food (as with anything whose use consumes it, such as wood for burning), permission to use is full ownership. If I am given permission to use it, ownership of the “body” held by the owner is meaningless. See Rema, Even ha-Ezer §28:17; for a broader survey, see here.

[3] On 45a we see that even according to Rav Nachman, produce is acquired by chalipin, even if one cannot effect chalipin with produce. So rules the Rambam, Hilkhot Mekhirah 6:1:

“Produce—although we do not effect acquisition with them as explained—are themselves acquired by kinyan like other movables. But coin—just as one does not acquire with it, so too it is not acquired by kinyan. Thus coin is not acquired by kinyan, nor does it itself serve as a kinyan to acquire like other things.”

The Rambam distinguishes between produce and money: neither is used to effect chalipin, but produce is acquired by kinyan kesef; money is not. Above we said both constitute “pure value.” Why, then, the asymmetry?

The answer is that produce is indeed “money” in terms of its property as pure value. But in terms of the laws of kinyan kesef, produce is acquired for use, not as mere value; therefore it is clearly peira, not teva’a (moreover, as we shall see, for this reason any “goods” are called peira in halakhic parlance). This distinguishes two aspects of “money” discussed here: on the one hand, “money” is that which has only value or a use that consumes it (no body), in which respect produce resembles money; on the other hand, “money” is that which is given only for its value. That is not true of produce.

[4] Some rishonim entertained the possibility that if one performs kinyan kesef with a utensil, it may be done even if the utensil is not worth a perutah. Their claim is that a utensil is “important,” and so even if its value is less than a perutah there is no deficiency in the kinyan. The proof that a utensil has importance is that in chalipin one may use a utensil worth less than a perutah. See, e.g., Shulchan Aruch, Choshen Mishpat §6:1, and Ketzot there, and also Ketzot §88:1, 3–4.

On our approach, that proof is faulty and the conclusion likewise. The fact that chalipin can be done with a utensil worth less than a perutah is not because of the “importance” of a utensil, but because value plays no role there—only “body.” Even a utensil worth less than a perutah has “body.” But in kinyan kesef, even when done with a utensil, “value” is required (since in kinyan kesef the utensil is only a kind of “equivalent to money,” not a tool for use). A utensil worth less than a perutah lacks sufficient value, and therefore one cannot acquire with it by kinyan kesef.

[5] In column 522 we saw the Rambam’s view (Mekhirah 5:4) that a debt from a loan does not acquire as “money,” but a debt from a sale price does. The Machaneh Efraim and Netivot ha-Mishpat §191 and Or Sameach, Arachin 7:12, explain that if a person has not paid the sale price, the sale is not acquired to him; when he purchases with that debt, he is exchanging the items with each other. Atzmot Yosef (Kiddushin 28) brings as a source R. Yosef ibn Migash, the Rif’s disciple. They assume that kinyan kesef is the exchange of value for value, and if you have not paid the money, you have not acquired the value. Indeed, since meshikhah acquires movables, the Kohelet Shlomo on Pesachim §18 explains that the object and its value are two things (he uses this to explain R. Yosef ibn Migash’s view in Shevuot that a creditor who “acquires” a pledge acquires only its value; the object itself remains owned by its owner—because the pledge corresponds to the money given in a loan, which is itself mere value). In a gift, one transfers both the body and the value; in a sale, one transfers the body but reserves the value to oneself. In principle the buyer is supposed to “strip” the value from the body; he therefore gives money in its place to the owner (as noted: “what difference does this coin or that coin make?”). We see here the principle noted in the previous column: value is an abstractum, of which money is the embodiment.

[6] This resembles a similar problem regarding conditions (tena’im). One of the rules is that the condition must precede the act. But it is not always clear what is the condition and what is the act. Take the condition of the tribes of Gad and Reuven: they wanted territory east of the Jordan; Moses wanted them to go as shock troops before the people in war. Both sides desired what was agreed to, and one could define the military service as the condition and the grant of land as the act—or the reverse. It depends on perspective. So what, precisely, must be prefaced to what in the language of the condition? Which is the condition and which the act?