The Gold Chapter – Money and Monetary Acquisition – Lesson 4

[Rabbi Michael Abraham] Okay, let’s start. In the previous lessons—three lessons, actually—I gave a kind of general introduction to the basic concepts: money, merchandise, acquisition through money, barter, and along the way we talked a bit about the meaning of something equivalent to money, which can also function as merchandise in a transaction and can also play the role of money in a transaction, in a transaction of acquisition through money, as distinct from barter, where there we’re basically exchanging merchandise for merchandise. And along the way we saw that in the process of abstraction we went through toward defining the concept of money, we actually needed to conceptualize the notion of value. Basically, the claim is that things have value, and the value itself becomes some kind of merchandise, or something like that, that we can, yes, carry out transactions with, yes, transfers, and be owners of it, and all sorts of things like that. We saw in Maimonides that Maimonides apparently understands that the price of the merchandise—if we carried out an acquisition through money and the buyer pulled the merchandise—then I acquired, and not just that he became obligated to give me, but I acquired something abstract, value, the value of the merchandise that is with him, say a hundred shekels, so I acquired value of a hundred shekels that is with him and is now mine. And that is a real acquisition, unlike a loan, where in a loan the claim is that the moment I lent someone money, that money became his and there is nothing with him that is mine. It’s not that there is value with him that is mine, or that there are unspecified coins with him that are mine—there is nothing with him that is mine. He has an obligation to give back the amount that I gave him. That is called repaying a debt or repaying the loan. By contrast, yes, according to Maimonides there is a difference between the price of a purchase and a loan: in the price of a purchase I acquired the value; in a loan, you have an obligation to give me something back afterward. Okay, that’s basically the meaning of a loan.

[Speaker C] Maybe you gave me collateral for that, against the loan?

[Rabbi Michael Abraham] That depends. If you receive collateral, the definition of the loan may be different. Meaning, once I receive collateral, it may be that even Maimonides would agree that there is some value with the borrower that belongs to the lender. And the indication of that—where did we see this in Maimonides? Basically, we saw it in two places: in the laws of sale and in the cancellation of debts in the Sabbatical year. In chapter 10 of Mishnah Shevi’it, the Mishnah says there that a loan is cancelled in the Sabbatical year, but the price of a purchase is not, and neither is a loan backed by collateral. That brings me back to what you said. So I explained that Maimonides explains—and this is at least how I understand him—that a loan, basically, the cancellation of debts in the Sabbatical year merely exempts me, the borrower, from giving you the money that the Torah obligates me to give him. The Torah—repayment of a creditor is a commandment—so I am obligated to repay you the money you gave me; that is some future obligation I am required to give you, like a commandment that the Torah imposes on me. Once the Sabbatical year arrives, the cancellation of debts says that this obligation is nullified. This obligation that the Torah imposed on me to give you money of mine no longer exists; I don’t have to give it to you. But if I have something with me that is yours—say a deposit, right? A deposit: you deposited with me an envelope with a hundred shekels as a deposit, not that this is—that’s not a loan, okay? Now, if you deposited a hundred shekels with me, clearly even after the Sabbatical year I have to return the deposit to you. Why? Because the money that is with me belongs to you. The cancellation of debts does not transfer your things and turn them into mine. The cancellation of debts cancels obligations that the Torah imposed on me; it says they no longer exist. The Torah imposed on me an obligation to give you a hundred shekels of my own, and it says no, that will remain yours and you don’t have to give. But the Torah does not transfer something that is yours and turn it into mine, giving it to me as a gift. The Torah does not take your money and transfer it to me. The Torah exempts me from giving you money. Okay. Okay? And therefore with a deposit there will be no cancellation of debts, only with a loan. And my claim was that what is written in the Mishnah, that the price of a purchase is not cancelled, is for the same reason. Because in a purchase, if I gave you the—you pulled the merchandise—so now you owe me money. Owe me money is not like in a loan, so says Maimonides. The price of a purchase: the fact that you owe me money means there is value with you that is mine. It is not a specific coin. I can’t say to you, this coin is mine or this bill is mine, but value, this abstract thing, I own it even though it is with you. Therefore the cancellation of debts does not apply to such a thing, because if it did, that would basically mean that something that is mine became yours, as with a deposit—but in the cancellation of debts that does not happen. Therefore with the price of a purchase it does not happen. And if the Mishnah says that even a loan backed by collateral is not cancelled, I return to your question: that means exactly that when I lend against collateral, when there is collateral against the debt, that does mean that I acquired some value located with you that is mine. Corresponding to it, I have collateral with me. The collateral expresses the fact that there is something with you that belongs to me. It is not just a future obligation that you will pay me money. And therefore a loan backed by collateral is not cancelled. Okay?

[Speaker B] So if instead of collateral there is a document—

[Rabbi Michael Abraham] Yes. No, a document is not—

[Speaker B] With a document he can’t use the document.

[Rabbi Michael Abraham] A loan documented by a note is also cancelled. No, no, a documented loan… a document is only a proof document. In a loan, the document is a proof document; it is not… it is nothing beyond that. There is a dispute between Beit Shammai and Beit Hillel over the question of on whom the burden of proof rests. Is a documented loan considered as if already collected, or not considered as if already collected? Meaning, if you hold that a documented loan is as if I have basically already collected the money—but it doesn’t really make me someone who collected the money. The medieval and later authorities explain that the dispute is only over the question of who bears the burden of proof. When I sue you and you say you paid, and I have… so if I don’t have a document, the burden of proof is on me, because I’m trying to extract money from you, I want to take it out. If I have a document, the burden of proof is on you, but that doesn’t really mean the money is mine. So a document is always with the lender. There is a due date. Right. And after the due date—before the due date you can’t sue at all. After the due date you come with a document. So the dispute between Beit Shammai and Beit Hillel is over who bears the burden of proof, who has to prove. But there is no dispute that you are the possessor of the money, and that this is not literally considered collected, okay? I can’t betroth a woman with this. It doesn’t become… if someone betroths a woman with a loan, she is not betrothed; with a documented loan as well she is not betrothed. Even one who betroths with a documented loan—she is not betrothed—and Beit Shammai and Beit Hillel do not dispute that. Actually, this innovation of Maimonides—that one can acquire value even though it is an abstract thing, not a specific coin but value of one hundred shekels which from among your things is basically acquired by me, is my property, belongs to me—that is a major innovation. And this innovation basically leads Maimonides, apparently, to interpret differently the concept that a loan is given to be spent. When we talk about a loan being given to be spent, the Talmud in Kiddushin—I mentioned it—the Talmud in Kiddushin 6, where the Talmud says that one who betroths with a loan, she is not betrothed. Why? Because a loan is given to be spent. The conventional explanation of “a loan is given to be spent” is that basically there belongs… there are certain one hundred shekels of mine that are with the woman. One hundred shekels, but they are not specified. It’s not… there is not some specific bill of one hundred shekels that is with her that belongs to me. And there is a rule in the laws of betrothal that betrothal can be effected only with a specific thing. And therefore one cannot betroth. According to Maimonides it is not like that. According to Maimonides, “a loan is given to be spent” means I have nothing with her. Not that I have one hundred shekels with her, just not a specific thing—I have nothing with her. As distinct from the price of a purchase, where with the seller there is with the buyer value of one hundred shekels, in a loan I have nothing. She has a commandment to give me one hundred shekels, but before she fulfills that commandment, I don’t have one hundred shekels with her. Okay? Therefore Maimonides indeed says that with the price of a purchase one can betroth a woman. Why? Even though it is not a specific thing, still she owes me one hundred shekels as the price of a purchase. She bought something from me, and now she owes me one hundred shekels. There are no particular one hundred shekels that she owes me, but according to Maimonides that doesn’t matter; there is no rule in betrothal that the betrothal be done with something specific. One can betroth a woman with all sorts of things. Okay? So there is no rule that the betrothal must be done with a specific thing. So what is the problem? Why is one who betroths with a loan not betrothed? Because in a loan I don’t have with her even a non-specific thing. I have nothing with her. So with what exactly do you want me to betroth? I gave her nothing. The money—all the money that was with her—was hers and remained hers. She received nothing from me, and therefore she is also not betrothed.

[Speaker E] Because she has an obligation to return it.

[Rabbi Michael Abraham] Right, a future obligation, so that is just driving away a lion. I’m merely saying I exempt you from the future obligation. That says nothing.

[Speaker E] Not that she owes you something non-specific? What’s the difference?

[Rabbi Michael Abraham] No, again. She owes me something non-specific, but I do not have, I do not own, something non-specific located with her. It is not mine. It is something future that will be mine. Right now, if you ask whether I currently have something with her, the answer is no. There is a personal obligation on her to give me one hundred shekels in two weeks.

[Speaker F] And if there is a deposit, then there is something with her that is mine. Right. And likewise with the price of a purchase. According to the Talmud then, is benefit a specific thing?

[Speaker G] Because you can betroth through benefit.

[Rabbi Michael Abraham] According to Rashi you have to say that; according to Rashi you have to say that,

[Speaker G] because there is—

[Rabbi Michael Abraham] a rule that only a specific thing can effect betrothal. According to Maimonides all you need to say is that there just has to be something.

[Speaker G] The Talmud itself says that she becomes betrothed through the benefit—

[Rabbi Michael Abraham] Through the benefit of forgiving the loan—yes, one can betroth. With the loan itself she is not betrothed; with the benefit of forgiving the loan she is betrothed. With benefit from all sorts of things, also benefit from a gift. Ah yes, right, that is a specific thing,

[Speaker G] according to—

[Rabbi Michael Abraham] Rashi at least, yes, you have to say that. But also in the loan itself, with the benefit of forgiving the loan she is also betrothed. Where? Not if he betroths with the loan itself, but rather you want me to waive your obligation to give me one hundred shekels in two weeks. That waiver is worth money to you—you could say it’s worth one hundred shekels, right? She gains one hundred shekels overall. So if I betroth her with that benefit, she is betrothed, because I transferred benefit to her. But if I want to betroth her with the loan itself, with the loan money itself, no—I gave her nothing.

[Speaker D] But that’s just the wording. It’s not—

[Rabbi Michael Abraham] The wording reflects a real difference. Meaning, if I betroth her with the loan, I basically want to take the debt she has now, give it to her, and thereby betroth her—she received nothing. But if I say, look, after all you have benefit from the fact that I waive your future obligation, and you received that benefit now—with that benefit one can betroth a woman. Okay?

[Speaker B] So the result is the same result?

[Rabbi Michael Abraham] Right. The ramifications are the same ramifications, the picture is the same picture, but substantively this really is betrothal with something else. That’s why it’s very hard to grasp in a simple way of looking at it, but it’s something else. You do the same thing—as if, if you do it this way, then yes; if you do it that way, then no. What—

[Speaker B] What do you mean? Say with—

[Rabbi Michael Abraham] No, one can also lend a se’ah for a se’ah—

[Speaker B] Say with a swallowed se’ah.

[Rabbi Michael Abraham] No, no, because when I lent her that se’ah, she eats that se’ah. Isn’t it hers? She has to give me another se’ah. And now we can discuss her obligation to give me another se’ah—what is that obligation? Does it mean that I now have with her some non-specific se’ah? Would Maimonides say that? Or not—sorry, Maimonides also agrees in a loan that no. Or rather, she only has a future obligation to give me a specific se’ah. It doesn’t matter—whether it’s a se’ah or a table, it’s the same thing. If this is a loan of the table—that’s not the question—if it’s a loan then she can use it on Lag Ba’Omer and return another table to me afterward. If it’s a borrowing, that’s something else; borrowing is like a deposit. But if you are talking about a loan, then it makes no difference whether it’s a table or produce or whatever it may be—she can use it; a loan is given to be spent. Okay? So this claim basically says that Maimonides speaks in terms of acquisition even regarding abstract things like value. Rashi probably would not accept such a thing; Rashi probably does not accept such a thing. And regarding “a loan is given to be spent,” then their dispute is also over the question of what happens in a loan. Rashi says she has a debt and owes me something, but it is a non-specific thing, and therefore one cannot betroth with it. Maimonides says no—I don’t have with her even a non-specific thing; I have nothing. She has a future obligation to give me from her own. In the price of a purchase I do have something with her that is non-specific: value. And according to Maimonides, if I have something with her, even if it is not a specific thing, one can betroth a woman with that—I gave her something that is mine. Okay? And in that same—

[Speaker D] case where there is a purchase debt, then would Rashi say that this gets nullified?

[Rabbi Michael Abraham] No, Rashi would explain—good question, and maybe we’ll also need it today, so I’ll answer you here already. What do the medieval authorities who disagree with Maimonides say? That there is no such thing… what do the medieval authorities who disagree with Maimonides say? That there is no such thing as acquisition over value. There are obligations—I owe you, I must give you—but there is no such thing as acquisition over value. So what do they say regarding the Sabbatical cancellation then? What is the difference between the price of a purchase and a loan? Or a loan against collateral, or wages of a hired worker, which also are not cancelled, and so on. So there are explanations there that apparently depend again on formulations—at least that is how I understand them. These explanations basically depend on the question: what is the purpose of the loan? Good that I mentioned that. If you make a loan to someone, generally the borrower is a needy person. A loan is an act of kindness. So you make him a loan. Then the cancellation of debts comes and says: let’s complete the act of kindness; let’s benefit the needy person by not obligating him to return it. Fine? If he reached the Sabbatical year and still didn’t repay, forget it, cancelled. Okay? I’m taking a step in favor of the needy. Now with a hired worker—not with a hired worker—with the price of a purchase. With the price of a purchase, after all Maimonides also explained there—and the Kesef Mishneh understood him that way—that the Kesef Mishneh understood Maimonides not like the way I suggested earlier. The Kesef Mishneh understands that a hired worker is not—the price of a purchase according to Maimonides is not like a loan. Why not? Because he gives the credit—after all, the price of a purchase is a sale on credit. Why do you sell on credit? In order to do a favor for the buyer because he is needy? There is no assumption that the buyer is more needy than the seller. Rather what? Simply to make the process more efficient. Instead of taking from him every time two shekels and seventeen agorot, you say: let’s accumulate it over a week or a month and at the end I’ll make an account for you and you’ll give me the whole thing. I don’t want to mess around with the coins every time you come to buy milk or a roll. Okay? So the purpose of the loan is not to benefit the needy but to make the process more efficient. This is also done for me, not only for you. I don’t want this nuisance. Okay? In such a case there is no cancellation of debts. The cancellation of debts comes to benefit the needy, but where the money was not given to you because you are needy, then why should we exempt you from returning what you owe? And the same with wages of a hired worker. A hired worker’s wages are also not cancelled. Why are they not cancelled? Because if anyone is needy there, it’s the worker, not me. What, in the cancellation of debts I won’t have to pay the worker after he did work for me? Why? They want to benefit me because I’m needy? If anything, the opposite: “On that very day you shall give him his wages.” The Torah sees the worker as the needy party here. Okay? And therefore clearly there too there will be no cancellation of debts. So the difference according to the other medieval authorities—not according to Maimonides—the difference between the price of a purchase and a loan, or between the price of a purchase and wages and a loan, is that the purpose, the motivation of the transaction is different. Is it a benefit for the needy, or is it some other kind of transaction? By contrast, according to Maimonides the difference hinges on the question of what the nature of the transaction is, not the motivations. Does the result of the transaction mean that I have something with you, or does the result of the transaction mean that you owe me some future obligation to give me? Meaning, according to Maimonides the difference is a technical difference. According to the other medieval authorities it is a kind of reasoning from the rationale of the verse. Meaning, I am basically deriving the rationale of the verse here, basically saying: why does the Torah cancel debts? Because it wants to benefit the needy. So fine—if that’s the case, in transactions whose purpose is not to benefit the needy, there we do not apply the cancellation of debts. That is really deriving from the rationale of the verse. Transactions that are not in the manner of a loan—it’s obvious, not my innovation, it is written in the Talmud—interest may be charged on a transaction that is not in the manner of a loan. Except what? There are rabbinic prohibitions—something resembling interest and so on. Fine, that is another discussion. But in principle, a transaction that is not in the manner of a loan has no prohibition of interest. For example, when you buy on credit, all these complications—when you buy on credit usually you pay a bit more, right? Ostensibly that’s interest. It depends. If, say, I bought a sofa and the sofa costs 1,000 shekels. He tells me: if you pay now, 1,000 shekels; if you pay in a month, 1,100. Okay? Now if I deferred it for a month, how do I view that process? Did I in fact buy it now for 1,000 shekels, and now I need to pay him 1,000 shekels? He turned those 1,000 shekels into a loan. Now I borrowed those 1,000 shekels from him and that’s why I didn’t give them to him, and for that I want to return 1,100 to him in a month—that’s interest. But if he tells me: no, the payment—if you pay me in a month, then the sofa costs 1,100, not 1,000. Meaning, you are paying me the price of the sofa, not that he lent me 1,000 shekels—you are paying me the price of the sofa. Then it would not be interest, at least not on a Torah level, since it merely looks like interest. Okay. So that is the background to the matter. I now want to begin entering into the chapter and dealing with the implications of the picture I described in the introduction. And in this lesson, in the next two lessons, I’ll deal with one implication, and that implication is: what happens—can I, in an acquisition through money, stipulate a specific payment? Yes, in an acquisition through money, say I’m taking—say I want to buy a chair from you. So you say for a hundred shekels. So I pulled the chair and then became obligated to you for a hundred shekels, right? Pulling the chair—the merchandise—acquires the money. That’s what the first Mishnah in the chapter says. Now, if with regard to those hundred shekels I want—you want, sorry—that I give you specifically a black lamb. Not a hundred shekels in money, but rather a black lamb. Fine? Or something, it doesn’t matter, such-and-such produce. Specifically wheat.

[Speaker B] Whatever it may be.

[Rabbi Michael Abraham] Can you do that? We’ll see that this question may depend on the introductions we discussed earlier. Okay. That will be the first topic I deal with in the next two lessons. That’s the plan at least. After that I’ll talk about a se’ah-for-se’ah loan, which is also connected to the matter. A se’ah-for-se’ah loan is what I mentioned earlier: I lend you not money but merchandise. I lend you tomatoes or I lend you tables or hammers. Okay. How should we relate to that there? Now we’ll enter a bit into the laws of interest, but really my goal will not be to clarify the laws of interest as such, but to try to see how to apply all the ideas we discussed in the three introductory lessons. So I’ll start with specific payment, yes, stipulating a specific payment. So I begin with the Mishnah. I’m sharing this on Zoom too. Do you—

[Speaker D] see it already or—

[Rabbi Michael Abraham] Yes. You see it, you see it. You need pilot training in order to give a Zoom lecture here. Okay. “Gold acquires silver, and silver does not acquire gold”—that is our Mishnah at the beginning of the chapter. “Copper acquires silver, and silver does not acquire copper; inferior coins acquire superior ones, and superior ones do not acquire inferior ones; a token acquires a coin, but a coin does not acquire a token; movable property”—this is what matters for our purposes—“movable property acquires coin, but coin does not acquire movable property.” This is basically the law we spoke about when we discuss acquisition through money, not barter, and this is a discussion throughout the Talmud all the time, whether we are speaking about barter or acquisition through money. But here it’s acquisition through money. And when we speak about acquisition through money, then there is one side which is merchandise; this is an asymmetrical acquisition unlike barter. In barter I exchange merchandise for merchandise, right? We talked about that. In acquisition through money I buy merchandise for money, for value, for payment—let’s call it the payment. That payment can be given in money, and can also be given in something equivalent to money, but in principle there is payment and there is merchandise. Okay? It is not the same as barter; it’s asymmetrical. Now, how is the acquisition effected? So the Talmud says—we saw Rabbi Yoḥanan and Reish Lakish, if you remember—whether on the Torah level money acquires, and rabbinically they required pulling so that he won’t say to him, “Your wheat burned up in the attic,” or whether on the Torah level only pulling acquires and money does not acquire—that is the view of Reish Lakish. We rule like Rabbi Yoḥanan that basically when I buy land I can acquire it with money—give money, and thereby the land is acquired to me—but if I buy movable property, movable property can be acquired only by pulling. It cannot be acquired through transfer of money. Okay. Whether on the Torah level or rabbinically—that is the dispute of Rabbi Yoḥanan and Reish Lakish—practically it is only rabbinic. On the Torah level it does acquire; rabbinically pulling is required. And land, of course, can also be acquired with money. Ephron, with the field of Ephron, right? I gave money: “Take the field from me.” So the claim is that in acquisition through money, when I give you the money there is no acquisition, at least rabbinically. You need to pull the merchandise. Why? Think about the situation. Say you bought a chair from me, okay? Now you gave me the money but haven’t yet pulled the chair, so the chair is still with me. A fire breaks out in my house. I have no interest in saving the chair, right? If the chair burns, it burns for you—you already bought it, it’s already yours. If it burns, your problem. So lest he say to him, “Your wheat burned up in the attic.” Therefore the Sages enacted: no, transfer of money does not effect acquisition. What effects acquisition is when you pull the chair to yourself; only then is the acquisition finalized. But the reverse, yes, is different: when you pull the chair to yourself, you acquired the chair and I already acquired the money even without pulling it. Why? Why on the reverse side are we not concerned that he might say to him, “Your money burned up in the attic”? Right, because if his house burns down, it makes no difference—I still owe him a hundred shekels. There are not specific hundred shekels with him that belong to me; if that were the case, then it would be the same thing. That is exactly the difference between merchandise and money: money by definition is not a specific thing. So there is no concern that a fire will break out in his house and he won’t save my money. There is no such thing as my money there; he owes me, personally, a hundred shekels, and that will remain so even if there was a fire in his house. Therefore the Mishnah says that in acquisition through money, the acquisition is finalized when you pull the merchandise. And then what happens? By that, you acquired the merchandise and I acquired the money. Okay? “A coin does not acquire movable property; movable property acquires coin.” When you—I pulled a coin from you—the merchandise is still mine, the acquisition is not finalized, one can back out, nothing happened. If you pulled the chair, that’s it. You acquired the chair and I acquired the money. Rashi there writes as follows: “Gold acquires silver”—the buyer takes minted gold dinars—yes, maybe one more introduction. “Gold acquires silver and silver does not acquire gold.” So later the Talmud explains that in a transaction of gold for silver, who is the merchandise and who is the payment? The gold is the merchandise and the silver is the payment. Okay? This was the teaching of Rabbi in his youth, in his younger years, but the law—the later Mishnah—is that the gold is the merchandise and the silver is the payment. Therefore the first law in the Mishnah, “gold acquires silver and silver does not acquire gold,” is the same law as the last law. Only specifically regarding gold and silver there is an additional innovation here: it had to teach that the gold is the merchandise. The last law of the Mishnah really should have been written first, if the editor had asked me, because it establishes the principle. After that I only have a problem with gold and silver because I don’t know how to identify which is the merchandise and which is the payment. So on that the Mishnah says: know that in a transaction of gold against silver, the gold is the merchandise and the silver is the payment. That is the innovation of the Mishnah. Once I know that, I already know that gold acquires silver and silver does not acquire gold, because that is written in the last law there about movable property and coin. Right? Gold is simply the movable property; it’s just a particular case. So why did it need to write it? It needed to write it in order to explain to me that the gold is the movable property and not the silver; that I would not have known had they not written the Mishnah. And that is a specific innovation regarding who is the merchandise and who is the money. It is not an innovation in the laws of acquisition, that when you pull the gold then you acquire both the gold and the silver—that I know already. It needed to teach me an innovation in the laws of payment and merchandise: who is the payment and who is the merchandise. So Rashi says, “Gold acquires silver,” yes, meaning the same thing as movable property acquiring the payment, the coin. “One who purchases minted gold dinars with silver dinars and gave him the gold dinars—the pulling of the gold acquires the silver for the owner of the gold,” the original owner of the gold, yes, the prior one. “And this one became obligated, from the moment he received the gold dinars, to give him the silver dinars, and he cannot retract.” Notice how Rashi phrases it: “And this one became obligated, from the moment he received the gold dinars, to give him the silver dinars, and he cannot retract.” What is he saying? You tell me that when I pull the gold then you… what was acquired here? I became obligated to give you money, says Rashi. Don’t make a mistake, says Rashi, and think that something was really acquired here. It’s not like barter. In barter, say, if one exchanges a cow for a donkey—when I pull the cow, I acquired the cow and you acquired the donkey. That is an acquisition; it is not an obligation to give you the donkey. The donkey is yours. So therefore in that case there is ostensibly the concern that he might say “your wheat burned in the attic”—never mind—but in principle, you acquired a specific donkey, it is yours, ownership transferred. But with money, says Rashi, it is not so. When I pull the merchandise, you acquire the money—when one interprets the words “acquire the money,” the intention is not really acquire in the way one acquires in barter. Rather, I became obligated to give you money and I cannot say, wait, wait, pause, I’m backing out—take back the chair, I’m not paying. No, no, it’s finalized. I have to pay you those hundred shekels. Okay? So Rashi is probably basically coming to teach here that Maimonides is not right. Because how does Maimonides read this Mishnah? As I said before, right? Maimonides reads this Mishnah as: when I pull the gold, you acquired value of a hundred shekels in silver—namely, that I need to give you a hundred shekels in silver. It is a real acquisition. You are the owner of that. One can betroth a woman with it, it is not cancelled in the Sabbatical year, and so on. Rashi comes to say: Maimonides is not right—of course by divine spirit, since he lived before him. But he comes to say: Maimonides’ conception is incorrect. Don’t think that what is written here, “acquires the coin,” means really acquires the coin. Rather, it creates an obligation to give me coin. Right, that is what Rashi says. If one really reads Rashi that way, then it seems there is a dispute here over what we have been discussing until now. Rashi does not accept what Maimonides says, that one acquires value. Nothing is acquired; an obligation is created. Or, if you like, one acquires an unspecified coin. It may be that he understands it that way. In any case, simply speaking it seems he talks about it as an obligation. He became obligated to give him one hundred shekels. As in a loan, basically. Rashi does not distinguish between a loan and the price of a purchase. In both cases, I owe you one hundred shekels—an obligation is created. How would Maimonides explain “they acquire the coin”? They really acquire, right? There are one hundred shekels with you that are mine; I can betroth a woman with that. Okay? So he reads the Mishnah literally. Rashi strains the language of the Mishnah a bit. But it’s clear what led him to that. What led him to that is the outlook of most of the medieval authorities. And most of the medieval authorities apparently are not like Maimonides. Most of the medieval authorities understand—what do you mean? There’s no such thing as acquiring value. Value is not tangible; you can’t own something intangible. All that is possible is to create an obligation. You owe me, you must give me something. That’s all. You can’t own value. Yes, Maimonides himself writes—I think I mentioned this—that there is no ownership of something non-specific. I can’t own the smell of an apple or the eye of honey. These are abstract things, non-specific things—you can’t own that. The innovation is that value, apparently, yes, can be owned. A major innovation. In any case, that is apparently the way Maimonides and Rashi would read the Mishnah. Now, this may have implications for a case where I want to transfer something to you—say a chair—and for that chair, in return for that chair, I want you to commit to give me, as I said before, a black lamb or coins of a certain kind. Can I obligate you in that? If I acquired something, then maybe I really acquired a black lamb with you, because this is an acquisition. The question is what the acquisition takes effect on. But if this is merely an obligation to give me payment—who are you to tell me what payment to give? Meaning, I can give you payment in money, in a lamb, in something else—I owe you one hundred shekels; something equivalent to money is like money. I can give you those hundred shekels in any form I find appropriate. Therefore it seems that the question whether one can obligate a specific thing, or a specific type, is a different matter. One can also talk about your giving me that specific lamb, not just some black lamb, but no, I want this one, this lamb. Here it already really resembles barter. Because I basically want to receive specific merchandise in exchange for the merchandise I am giving. That is not what I’m talking about. I’m talking about a case where I want the payment you give me to be given specifically in some black lamb, not necessarily a specific one, but some one. Meaning, not every monetary equivalent of one hundred shekels will be acceptable, but only a certain type. Can I do such a thing in an acquisition through money? Ostensibly this will depend on the question of Rashi and Maimonides. If acquisition through money acquires the payment for me, and one can own an abstract thing, then I am applying ownership to something abstract. What is that abstract thing? It can be either value of one hundred shekels, in which case it doesn’t matter how you realize that value for me, and it can be some black lamb. I own a black lamb of yours, without defining which of the black lambs in your possession it is. That is one possibility if I understand, like Maimonides, that we are dealing here with acquisition. But if, like Rashi, we are dealing here with an obligation—you owe me payment, you owe me value of one hundred shekels—then how you realize that payment is your decision. How can I determine for you what to give? Nothing has taken effect now. All that has taken effect now is that you owe me one hundred shekels. Right? So you owe me one hundred shekels—fine, you’ll give me one hundred shekels’ worth. According to Maimonides, now something took effect. Now I acquired a black lamb that is with you. So ostensibly this is a dispute between Rashi and Maimonides. But we’ll see in a moment that it is not necessarily so. It begins with the sugya on 45b. And let’s look at it now. The Talmud says as follows: “If so”—I’m not entering the context right now, it is less important for our purposes—they discuss there whether this is barter or money in the Mishnah, the cases we just read in the Mishnah, whether it is barter acquisition or acquisition through money. So the Talmud says: “If so, say the first clause: ‘Gold acquires silver.’ How so? In what case is this said? He sold him one gold dinar for twenty-five silver dinars; once he pulled the gold, the silver is acquired wherever it may be. Granted, if you say this is barter, then it makes sense that it teaches ‘the silver is acquired wherever it may be.’ But if you say it is through payment, what does ‘the silver is acquired wherever it may be’ mean? It should have said: the person became obligated.” How can one understand the language of the Mishnah, that when I pull the gold, the silver is acquired to me wherever it may be? Meaning, after all, I did not acquire anything. If this were barter, I understand. But in acquisition through money, that cannot be. Why not? Because in acquisition through money it makes no sense to say “the silver is acquired to him wherever it may be.” When you say “the silver is acquired wherever it may be,” that means there is some specific silver that has been acquired to me, and wherever it is sitting, it is mine—it doesn’t matter where, even if it’s in Australia. But that is not true. If this is acquisition through money and not barter, then what was created here is only an obligation to give me twenty-five silver dinars. So how does the language make sense, that the silver is acquired to me wherever it may be? Nothing was acquired to me, and not wherever it may be. An obligation was created to give me twenty-five silver dinars. That’s all. The idea of place, the language of place, has no relevance here. Only if we are dealing with a specific thing can you tell me: I don’t care where that specific thing is. But if it is not a specific thing, then what does “wherever it may be” have to do with anything? What do we see from the Talmud here? That in acquisition through money, Rashi is right and not Maimonides. Right? The Talmud assumes that in acquisition through money one does not acquire something; one becomes obligated. But that is not precise, because even according to Maimonides one can understand the Talmud. Because what is the Talmud saying here? Even according to Maimonides, it still makes no sense to say “the silver is acquired to him wherever it may be.” True, he acquired the value; now he owns the value; one can betroth a woman with it; all true. But you can’t say “wherever it may be.” Value is not a specific thing. The Talmud’s difficulty can also be understood according to Maimonides. It does not have to be interpreted like Rashi. But still, the Talmud’s formulation of the answer looks, ostensibly, like Rashi. Because the Talmud basically says that this is an obligation. According to Maimonides, that’s not true—it’s not an obligation, it’s an acquisition. Well, not the answer, but the wording of the difficulty. Yes, how it formulates the difficulty. The difficulty itself could also have been raised according to Maimonides. But the formulation that the Talmud chooses to use in phrasing the difficulty looks like Rashi. Because according to Maimonides they should have said—not because it is an obligation, but because you acquired, only a non-specific thing, so how can you say “wherever it may be”? And the Talmud doesn’t say that. The Talmud seems to understand that there is no acquisition here at all, only an obligation, and that is what bothered it. Okay? Rav Ashi said: “Actually, it is through payment. And what does ‘wherever it may be’ mean? As it is.” For if he said to him, “I will give you from a new pouch,” he cannot give him from an old pouch, even though they are better than them. What is the reason? Because he says to him: “I want the fresh ones.” What does that mean? It basically means that “the silver is acquired wherever it may be” means the silver is acquired to him as he stated. What does that mean? Say there are twenty-five silver dinars that he wanted. Okay? Twenty-five silver dinars can be new or old. Usually people prefer the old ones, for all sorts of reasons. Usually people prefer the old ones. But he said: I want new dinars. Huh? I don’t know. The old ones—various explanations are offered, which I’m not… What?

[Speaker B] It’s not certain that it’s not counterfeit.

[Rabbi Michael Abraham] Maybe. I don’t know exactly. The explanations there—no, I don’t remember any of them convincing me. But by the way, in the Arukh there really is an opposite suggestion: the older ones are less preferable. But never mind, that’s the accepted approach. So let’s assume the older ones are preferable for some reason, but I wanted twenty-five new silver dinars. Why? I want to keep them for a long time. Because I know they’re going to sit with me for a long time. And if the old dinars sit with me for a long time, they’ll blacken. So that’s why I want new dinars. For me, new dinars are preferable, even though ordinarily old dinars are better. Okay? So the Talmud says that when it says “money is acquired wherever it is,” it doesn’t mean wherever it is; it means he acquires the money that he wanted. You can’t give him old dinars even though they’re better, if he wants new ones. He wants new ones—give him that. It’s not “wherever it is” but “as it is.” Okay? That’s what the Talmud says. That kind of interpretive setup.

So what do we see here? The picture now flips around. Because what you really see here is that I can determine for him what kind of payment he will give me. Remember our black lamb? I want the payment in a black lamb—not in wheat, not in money, not in… I can determine it for him. Here, I want specifically twenty-five new silver dinars. Notice: the silver dinars are the payment; they are not the merchandise. Remember how I defined the difference between merchandise and payment? Merchandise is what we specifically want in the transaction, and the payment is something not specifically required. Right? That’s what really defines what counts as merchandise and what counts as payment in a transaction. Say I want to buy a chair from you and I paid you in tomatoes. The chair is the merchandise, not the tomatoes. Why? Because the transaction was made for the chair. The tomatoes served me as a way to give you payment. I could also have given you cucumbers or a hundred shekels. I happened to give it to you in tomatoes, but we didn’t stipulate in advance that I specifically intended tomatoes. Okay? The tomatoes served me to pay. Therefore, in such a transaction, the chair is the merchandise and the tomatoes are the money. All right?

Now here he wants twenty-five new silver dinars. Okay? Obviously he doesn’t care which ones exactly, but new dinars, not old dinars. What? Yes, yes—he said this before the transaction. After the transaction he can’t start adding conditions. But before the transaction he said he wants twenty-five new silver dinars. Okay? Even though the old ones are preferable, he wants new ones. We would have expected that he couldn’t say such a thing, right? Why? Because if it’s like Rashi—and we said that the simple reading of this Talmudic passage is like Rashi—then this is only an obligation. An obligation means he owes me a hundred shekels. Now he can give me a hundred shekels in any form whatever, as long as it’s worth a hundred shekels, because it’s only an obligation; I didn’t acquire anything. According to Maimonides you can understand it. But according to Rashi, how can you determine that it must be specifically twenty-five new dinars, or specifically a black lamb? It was acquired for me—or he obligated himself—to give me a hundred shekels, that’s all. Those hundred shekels he’ll give me however he wants.

So here, at this stage of the Talmud, it actually looks more like Maimonides: when the Talmud says I can determine for him specifically twenty-five new dinars and not—or only a black lamb or something like that—that apparently means that what we have here is not just an obligation but an acquisition. It’s just an acquisition of a non-specific thing. And the novelty introduced here is that I can make an acquisition of a non-specific thing, of value in general, and you’ll give it to me however you want—that’s what happens in every monetary acquisition—but I can also narrow down the non-specific thing to a specific category of things. I want the value of twenty-five new silver dinars, and then you can give it to me only in new ones, even though basically it’s an acquisition—an acquisition of something non-specific—but I can narrow the non-specificity. Meaning, I can buy from you something abstract, which is not just “value of a hundred shekels, do whatever you want,” but “twenty-five new silver dinars, and give me whichever ones you want.” That too can be acquired. Okay? The question is what kinds of non-specific things can be acquired according to Maimonides.

In contrast, according to Rashi it’s a bit difficult here, because according to Rashi, if Rashi holds that this is only an obligation—and that’s the simple reading of the Talmud above—and if Rashi holds that this is only an obligation, then in an obligation you now owe me the value of a hundred shekels. How can I determine for you what is yes and what is no? You’ll decide—when you give it to me, you’ll decide, a week from now. Right now I have nothing of yours in my possession; you just owe that in a week, like a loan: in a week you have to give me the value of a hundred shekels, and in a week you’ll come and give me a hundred shekels. I can’t tell you how to give me those hundred shekels, right? Because it’s only an obligation, not an acquisition. So what can be done? How would Rashi explain this anyway?

It seems to me the only way to understand this Talmud according to Rashi is basically to say that according to Rashi, you can obligate yourself to a certain value, but after all, I can impose conditions on the transaction. Conditions can always be made. I didn’t acquire a non-specific thing according to Rashi, right? But conditions can be made on any transaction. So I sell you this chair or this gold coin, this gold dinar, in exchange for twenty-five silver dinars, and I stipulate a condition that those twenty-five silver dinars be only in new silver. So I didn’t acquire twenty-five new silver dinars; I merely created your obligation, but I imposed conditions. And I want you to discharge that obligation in a new dinar. Conditions can be stipulated about anything; for example, I can lend you money on condition that it rains tomorrow—no problem—or on condition that you stand on one foot. You can stipulate conditions on any transaction you make. So that doesn’t mean I acquired something non-specific from you. Rashi will explain: no, it’s an obligation, not an acquisition, but it’s an obligation on condition that you discharge these twenty-five dinars specifically in new dinars and not in old ones. That’s how the Talmud must be understood according to Rashi.

By the way, the Talmud above, on the same page, 45b, says—see?—the Talmud says: “We learned: gold acquires silver.” What, is that not by barter? “Gold acquires silver” would seemingly be barter, and from this derive that a coin can function as barter. Remember, we saw the dispute among the Amoraim whether a coin can function as barter or cannot function as barter, and the Talmud brings proof from the Mishnah that a coin can function as barter. Why? Because when it says “gold acquires silver,” that certainly sounds like barter, and if it’s talking about barter then you see that coins can be acquired through barter. The Talmud says: no, by payment. This is not a barter acquisition; it’s a monetary acquisition, so you can’t bring me proof.

If so, “gold acquires silver”? It should have said “obligates.” A very similar question to the Talmud we saw earlier, right? If you tell me this is a monetary acquisition and not barter, then what does it mean to say that gold acquires silver? Gold obligates silver. Again, just like Rashi, right? That a monetary acquisition creates an obligation or debt on your part, but not that something of yours was actually acquired for me. The Talmud says: read it as “gold obligates.” The meaning of “gold acquires” is “gold obligates.” That’s really how it should be read. Okay?

So this basically means that the Talmud says here, in the upper part of the page, maybe even more explicitly, like Rashi, that in a monetary acquisition I don’t acquire anything that is in your possession; I create an obligation. And the Talmud is comfortable with that. It says: even though it uses the word “acquires”—and that was the proof in favor of Maimonides—it says “acquires,” not “obligates.” So what does it say? True, but it means “obligates.” The Talmud is so convinced, like Rashi, that even though the language of the Mishnah points like Maimonides—because it says “acquires”—well, fine, but that can’t be; read it as “obligates.” Okay? So this seems to be evidence for Rashi, similar to what we saw in our passage.

I think the same thing can be said here according to Maimonides. So how does Maimonides read this Talmud? Maimonides will probably understand that when it says “obligates,” the intention is that you acquired a non-specific thing. You acquire a non-specific thing—what does that mean? It means that you are essentially obligated to give me some sum of money in the future, because right now there is nothing specific in your possession that belongs to me. So it is an acquisition—not that it isn’t an acquisition; it is an acquisition of value. But the Talmud prefers to use the term “obligates” rather than “acquires” because in practice there is nothing concrete that was acquired. All it does is obligate you to give me some equivalent of a hundred shekels in the future, or twenty-five silver dinars in the future.

Now this is interesting, because one could ask about the Talmud, the way you can always ask about interpretive setups and things like that. After the Talmud says that what it really means is “obligates” and not “acquires,” the question returns: so why did the Mishnah use the language “acquires”? Didn’t the Mishnah know that? Fine, the Talmud is forcing the Mishnah. I understand—there’s no choice, so I force the reading—but when I ask myself about Rabbi, who formulated the Mishnah, why did he formulate it in a way that would require us to force the reading? Why didn’t he write what he really meant? What was the problem with saying “gold obligates silver” and not “acquires silver,” as the Talmud itself understood? So why is Rabbi confusing us?

I understand what forces the Talmud to say that even though it says “acquires,” it apparently means “obligates,” because “acquires” doesn’t fit in such a case. Let’s say this is Rashi, yes? But Maimonides would argue against Rashi: with all due respect, Rabbi wasn’t a fool either. When Rabbi edited the Mishnah, why didn’t he write explicitly what the Talmud later has to force into it? Because Rabbi wanted to tell you that what is created here is not an obligation like in a loan, but rather here you acquire value, you acquire worth. De facto it’s like a loan obligation. What does that mean? After all, there’s nothing in your possession that is mine. In the future you’ll have to give me the value of a hundred shekels; in that sense it’s like a loan debt. But in an essential sense it’s not the same thing. Here you really acquire. And the practical difference is, for example, that one could betroth a woman with this. With a loan one cannot betroth a woman. One can use this debt to make another monetary acquisition. And that’s Maimonides that we saw in the laws of sales. Okay?

So therefore, according to Maimonides, in this matter too things may come out better than according to Rashi. Because on the one hand the Talmud says, “read it as ‘obligates,’” but the Talmud gives no explanation why Rabbi phrased it so carelessly, God forbid. Fine, let him say “gold obligates silver.” But he confused us; we would have thought this was barter. Why shouldn’t he just say “gold obligates silver” and everything would be fine? What would we lose by that? You’d still understand the idea in the laws of sales that you have to draw possession of the merchandise in order to finalize the transaction, and all that without the inaccuracy in wording that he chose. So Maimonides says: no, it isn’t inaccurate wording; on the contrary. Rabbi was very precise in his language. Even though practically this is basically an obligation, Rabbi did not write “obligates.” Rabbi wrote “acquires” in order to tell you that here it’s not like a loan, where you merely create an obligation; here you acquire value, a non-specific thing. Okay? So therefore, from here too I think this is not evidence for Rashi, and if anything I would even say it may be evidence for Maimonides—this precision in the language of the Mishnah.

The Shulchan Arukh brings this as Jewish law, and it’s very hard to understand what exactly he means. He brings it in the language of the Talmud, not in the language of the Mishnah. He says: “If one gave him thirty copper issars for a silver dinar, he is obligated to give him a silver dinar as agreed with him: if new, new; if old, old.” What does “obligated to give him” mean? Is it an obligation, meaning just indebtedness? Or is it “obligated to give him” in Maimonides’s sense, meaning that he acquired value, and what it means is that he is obligated to give him as stipulated? You can read it this way and you can read it that way, right? So it’s hard to decide from here.

Now let’s see: until now we’ve been talking about various kinds of money—old silver dinars, new silver dinars, and so on. The Nimukei Yosef talks about the question of what happens if I specify a certain type of merchandise, not a certain type of coin. I want a black lamb, like I said earlier. It could be that this will not be the same as a specific kind of money. Why? So look, first let me remind you again: in the simple sense this seems to depend on the dispute between Rashi and Maimonides, right? Because according to Maimonides, where this is an acquisition, I can say that the acquisition takes effect on a black lamb—not simply on value in general. A non-specific black lamb, but a black lamb. Okay? A lamb, a black lamb, whatever. According to Rashi, where this is an obligation, an obligation by definition is to give me a certain value that you obligated yourself to. You can’t tell him how to give me the value. But that’s not precise, because we saw in Rashi too that Rashi must agree—this is explicit in the Talmud—that in the end he has to give him new coins as requested. And I explained how that works according to Rashi even though it’s only an obligation: it’s a condition. It could be that I can say that same condition also about a lamb. And then indeed the question returns, both according to Maimonides and according to Rashi: what happens with specific merchandise? Seemingly there is no reason it should not work. How is that different from stipulating that he wants twenty-five new silver dinars?

So the Nimukei Yosef really does say yes—the only difference will be whether I acquire a black lamb; that would be according to Maimonides. And according to Rashi I merely create an obligation to give payment, and the condition is that I give it in a black lamb. But still, practically, this transaction can exist both according to Maimonides and according to Rashi—so it would seem.

And the Nimukei Yosef writes: “I want them for keeping,” meaning I need the new coins in order to keep them. “I need to keep them for a long time, and the new ones are more convenient for me so that they should not blacken too much. From here we hear that this claim—that I need them for keeping—is a valid claim.” What else do you see from here? That you need a reason in order for me to force him to give you specifically new silver coins. Why? I demanded new silver coins in the transaction, that’s all—what’s the problem? That’s what I want, that’s what I acquired, that’s all. Why do I need to give you excuses for why I prefer the new ones? I want new ones. I have no excuse. A weak excuse. What difference does it make? I feel like it, I like them shiny. What difference does it make? If that was the transaction, that was the transaction. Why does this have to count as a claim? Meaning, you have a reasonable justification, therefore indeed we’ll obligate him. If you don’t have a reasonable justification, we won’t obligate him.

I think this again tilts in the direction of Rashi. Because according to Maimonides, once we made the transaction, I acquired new coins or I acquired a black lamb. I don’t need reasons why I want that. That’s what I want. What, if I go to the market and buy tomatoes, do I need to explain to the seller why I specifically want tomatoes and not have him give me cucumbers? I want tomatoes—what business is it of yours? So here too, if I acquired and I said what I want to acquire, then I acquired it; I don’t need explanations.

In contrast, according to Rashi, I didn’t really make a formal condition—there was no doubled condition and none of that. I just said: I’m selling you a gold dinar for twenty-five new silver dinars. Then I say: fine, I’m giving you old ones, because I understood that you just wanted the value of twenty-five new ones, and the old ones are worth more—they’re better. So I’m giving you the old ones. If I have a reason why I specifically want the new ones, I’ll tell him: no, no, I specifically want the new ones; you won’t be able to give me the old ones. Because here the dispute is about how you discharge the debt that was created. One can argue about whether I specifically intended the new ones or not. If I have a good claim, then I have a good claim; if not, not. But according to Maimonides these claims are irrelevant. Once I acquired, I acquired. Why do I need to give you explanations for why I chose to buy this and not that? I felt like it. So this Nimukei Yosef also tilts somewhat in the direction of Rashi—that this is a kind of condition.

Yes, and Rabbeinu Hananel wrote that even though the old ones are worth more, he is obligated to give him new ones as agreed. “And similarly with movable goods: if someone drew possession of an item from his fellow and stipulated that he would give him a kor of new wheat, he is obligated to give him as agreed.” He says this is not only talking about the type of coins—new coins versus old coins—but also about wheat. Say I want specifically new wheat and not old wheat, or I specifically want wheat and not barley.

Now here you need to pay close attention. Why? Why? What? Why? Why shouldn’t it be the same? Why is there any need to say this? It’s obvious, no? If I can stipulate a certain type of coin, I can also stipulate some other type of payment. I want specifically new wheat. Fine. Whether according to Rashi or according to Maimonides—I can stipulate it, or I can acquire it; whichever way, I can do it. So what was the initial thought to distinguish?

[Speaker B] If it’s not value, is it quantity?

[Rabbi Michael Abraham] No—new wheat and old wheat, the quantity is the same. No, if one is worth more and one is worth less, then you could say the same thing about dinars. Obviously he has to give him something of equivalent value; he can’t give him something worth less. If he stipulated a certain value, he can’t pay me less than what he stipulated. For that we don’t need the Nimukei Yosef. Think of it like when we talk about paying damages or paying a creditor: the question is whether it’s average-quality land, superior-quality land, or inferior-quality land. Right? A ketubah is paid from superior land, an ordinary creditor from average land, and a damager—wait, a damager from superior, an ordinary creditor from average, and a ketubah I think from inferior, I don’t remember, something from inferior land. There too you can ask: what difference does it make? After all, everything is reflected in value. In the end I give you land worth a hundred shekels, because that’s what I owe you. And if the land is inferior, I’ll have to give you two dunams instead of one, and practically it’ll still be worth the hundred shekels I owe you. So why determine whether I’m giving you superior land or inferior land? The price already reflects those differences. No—it turns out not, and people may have preferences even though the price doesn’t reflect them. Okay? Such a thing can happen.

A person may prefer—I don’t know—you could sell me barrels of oil that will be drawn from a well in Saudi Arabia in fifty years, at a certain value, okay? And that’s their value. But what can I do? I don’t extract oil and I have no tools to deal with such a thing. So I want it in money; I don’t want it in future oil barrels. That doesn’t mean the money is worth more, and it isn’t reflected in the value of the barrels. It isn’t reflected in the value of the barrels. For me, the money is worth more because I have no use for the barrels; I’m not an oil trader. Okay?

In any event, that’s only the initial assumption. In the conclusion, the Nimukei Yosef says yes: merchandise is like money. I can stipulate a certain merchandise just as I can stipulate certain money. The Ketzot cites his brother, who asks on the Nimukei Yosef, in section 203. “If old, old”—the Shulchan Arukh. The Nimukei Yosef wrote in the chapter HaZahav as follows: “It was taught: as it is, as he stipulated with him. And similarly with movable goods: one who drew possession of money from his fellow and stipulated that he would give him a kor of new wheat is obligated to give him as he agreed.” End quote. That’s the Nimukei Yosef we saw.

And my great brother, our teacher Rabbi Yehudah HaKohen, may he live forever—I don’t know, some imaginary blessing—asked from what the Ran wrote in Avodah Zarah, chapter HaSocher—that’s the author of Kuntras HaSefeikot, Rabbi Yehudah HaKohen, the Ketzot’s brother—that if one hired a worker and stipulated to give him as wages this kor of wheat, or even just an unspecified kor of wheat, he is not obligated to give him wheat but only money, because there was no act of drawing possession. Do you hear what the Ran in Avodah Zarah says? The Ran on the Rif. He says there: I hired a worker to plow my field for one day, and I owe him a thousand shekels for that, okay? And the worker stipulated that he wants the payment in wheat—some specific kor of wheat, or just a kor of wheat in general—but in wheat and not in money or cash. The Ran says: he is not obligated to give him wheat. Let him give him the value he owes him—the thousand shekels he owes him—in any form he wants. So you see, yes, that’s what the author of Kuntras HaSefeikot says: that in such a transaction you cannot stipulate a payment of a specific type. That goes against the Nimukei Yosef here.

Yes, that’s what he says, and so too the Rema wrote in section 332. “If so, why does he need to give as stipulated?” Why here does the Nimukei Yosef say he has to give as stipulated? There we see that he does not. Later I found in the book Bnei Yaakov that he also asked this question. The Rema he’s referring to is this Rema in section 332: “A householder who hired a worker and told him he would give him an item as his wages may afterward give him its monetary value, not the item itself.” Why? Since the worker did not draw possession of the item, he did not acquire it. Because that item is payment, not merchandise. So as long as you haven’t drawn possession of the item, the payment was not acquired. Basically, you owe me a hundred shekels. And if you owe me a hundred shekels, then give me those hundred shekels in whatever form you choose. I can’t tell you in what form to give me those hundred shekels. Right? So that contradicts the Nimukei Yosef.

Now the truth is, this is the kind of question I always have trouble with. You’re asking on the Nimukei Yosef from the Ran? Are you pitting one person against another? What do you want? Why? Fine—so the Ran disagrees with the Nimukei Yosef. What’s the question? Now that’s not entirely precise. Why? First, because the Nimukei Yosef apparently derives this from the Talmud. It says that if you want new coins, then only new ones. So the Nimukei Yosef is just drawing the conclusion, but that conclusion is embedded in the Talmud. So that’s already difficult, because the Ran can’t go against the Talmud. Second, the Shulchan Arukh brings both of these laws. The Shulchan Arukh in section 203, where the Ketzot is speaking, says: if old, old; if new, new. He brought our Talmudic passage. So he rules like the Nimukei Yosef. And the Rema here in 332 brings the Ran. Why? What? Both are about money. Wage payment, you mean? Yes. No—who said that’s from the Talmud? It’s the Ran, not the Talmud. No, it’s the Ran. So I’m saying there’s also a contradiction in the Shulchan Arukh. So leave aside the Ran and the Nimukei Yosef; perhaps they have a dispute. But within the Shulchan Arukh there should be consistency. Okay? And if he rules like both, then there is some difficulty here. It needs to be resolved. At the very least, the Shulchan Arukh apparently thought this was not a dispute, because he in fact ruled both ways.

The truth is that here too we need to be a bit careful. I once saw an article by Professor Nesiyahu, I think his name is, or Birkhiyahu—what was it, I don’t remember—from the family of Rabbi Nissim, I think, maybe the son of Rabbi Nissim, I don’t remember. He wrote a long article on the Shulchan Arukh and its method of ruling, and he says there that it is not at all certain that the Shulchan Arukh intended to write something coherent. He gathered various rulings; he collected them. It’s not that he had some systematic approach and the whole thing is supposed to be coherent, and if there are contradictions they need to be resolved. He collected the decisors; here they came out one way, there they came out another way. It isn’t clear that he made a coherent calculation.

Well, that is not the accepted view of the Shulchan Arukh, and I really do think it’s strange to say that he worked that way—unless you understand that it really was not intended to be a code of Jewish law, but only a book meant to summarize what emerges from the Beit Yosef. The Beit Yosef brings many views, and when the Shulchan Arukh summarizes the Beit Yosef, it does not really claim to be a code of Jewish law. So there too there’s some dispute about that.

[Speaker B] What? Why? Because it’s the Rema, so he enters there?

[Rabbi Michael Abraham] Doesn’t matter. For me, the Rema and the Shulchan Arukh are one work. Fine. But here it’s something else.

[Speaker J] What? Because it’s in a different section.

[Rabbi Michael Abraham] It doesn’t matter whether it’s a different section or not. But the Rema didn’t comment there, so he apparently agrees, and here he writes differently. Yes. Ah—you’re saying that if it were in the same place, then perhaps what he writes here would also count as disagreeing with what the Shulchan Arukh wrote there. Yes. Anyway, in the straightforward sense one should try to reconcile the rulings of, say, Maimonides. With Maimonides, you know there is a dispute in the Talmud between different methods of scriptural interpretation. The school of Rabbi Yishmael interprets by general and particular. The school of Rabbi Akiva interprets by inclusion and exclusion. When in the Torah you have a general statement, then a particular, then a general, Rabbi Yishmael’s school interprets it one way, Rabbi Akiva’s school interprets it another way. And that creates halakhic differences. And in Maimonides you can see that in different Talmudic passages, in some places he rules in a way that fits the interpretive methods of Rabbi Yishmael’s school, and elsewhere he rules in a way that fits Rabbi Akiva’s school. He doesn’t insist on coherence on the level of interpretive method. There is no contradiction among the laws he rules as such. But in terms of derivation from the Torah, this law came out through inclusion and exclusion and Rabbi Yishmael’s school would disagree, while that law came out through general and particular and Rabbi Akiva’s school would disagree. So it comes out inconsistent in terms of interpretive method, even though the laws themselves do not contradict one another. In terms of interpretive method, Maimonides does not insist on consistency. Are both valid? Yes. Both are valid even though they emerge from different interpretive methods. Freedom? It’s a bit strange. But here there is a contradiction between the laws themselves, not between the sources of the laws. Make up your mind: can I obligate myself regarding a specific thing, or is an obligation only to value in general? So here—that’s the Ketzot’s question, yes? Or the Kuntras HaSefeikot’s, who asks about a contradiction between the Ran and the Nimukei Yosef.

Now, if I go with Maimonides, then it seems to me there’s a fairly simple way to resolve it. Why? The Nimukei Yosef is speaking about the price of a sale. Our Talmudic passage and the Nimukei Yosef are talking about the price of a sale. The Ran is talking about a hired worker’s wages. Right? Payment of wages to a worker—that’s a different issue. It’s also a kind of transaction, but not a sale transaction; it’s payment to a laborer or employee. Okay? One could say that in the price of a sale, why indeed can I obligate myself to a specific thing—new coins, wheat, wheat and not something else, a black lamb, and so on? Because it is an acquisition. According to Maimonides, the sale price is an acquisition, and we said that the whole problem with obligating oneself to a specific thing arises only according to Rashi, because Rashi says what is created is an obligation. I owe you a hundred shekels of value. Who are you to tell me how to pay you those hundred shekels? So that’s hard; you need to say maybe conditions or things like that. But according to Maimonides the difficulty doesn’t arise. According to Maimonides I perform an acquisition. Now once you drew possession of the merchandise, the payment was acquired for me. What is that payment? Whatever we fixed. And if we fixed a specific thing, then a specific thing was acquired for me. What’s the problem? There is no problem.

Therefore the Talmud here says, and the Nimukei Yosef expands it—though it already appears in the Talmud—that in the price of a sale I can also obligate a specific thing. Since in the price of a sale, Maimonides says, this is an acquisition of value, I can also acquire a specific thing, or something more specific, and not just value in general.

With wages, there it could be that it really is an obligation like a loan. I didn’t acquire anything. Therefore, with wages, as long as I haven’t drawn possession of the wheat, what is created is an obligation: you owe me the value of a hundred shekels. How to pay? Your decision. How can I determine for you how to transfer me the value of those hundred shekels? According to Maimonides there is no problem understanding this. And if the Shulchan Arukh follows Maimonides’s approach, say—and we saw his wording above; it can be interpreted either like Maimonides or like Rashi—if the Shulchan Arukh follows Maimonides’s approach, and by the way generally he does follow Maimonides, then there is no problem; there is no contradiction in the Shulchan Arukh. What he rules in our passage is because this is a sale price, and in a sale price I acquire the value. To acquire the value has no limitation; I can also acquire a specific kind of thing. Wages are like a loan. In a loan you can’t determine how he will repay you. He owes you a hundred shekels; he will give you property worth a hundred shekels. How? In a lamb, wheat, silver, gold, copper—whatever he wants. His choice. You can’t determine that for him. With wages, it’s like a loan—if I assume that, that wages are like a loan.

Now in fact this doesn’t really fit Maimonides. Why? Because specifically Maimonides claims that wages are like the price of a sale, not like a loan. How do I know that? From that same Mishnah in Shevi’it we saw earlier. Right? The Mishnah in Shevi’it says that just as the price of a sale is not cancelled, while a loan is cancelled, so too wages are not cancelled. And I explained why: because Maimonides at least understands that the price of a sale and wages are both basically acquired by the one to whom they are owed, unlike a loan, where it is only an obligation. If so, then there is no room to distinguish and say that according to Maimonides wages are an obligation while a sale price is an acquisition.

But the Shulchan Arukh doesn’t have to accept Maimonides on that. The Shulchan Arukh can say that wages are indeed like a loan. And if you ask me why wages are not cancelled in the Sabbatical year—that’s simple. After all, the Shulchan Arukh also wrote a commentary on Maimonides, right? The Kesef Mishneh. The Kesef Mishneh explains why the price of a sale is not cancelled, and he doesn’t explain it the way I explained it. We saw what he says.

[Speaker K] Wages too must be actually received—how can you prevent the…

[Rabbi Michael Abraham] Why? A loan is also actual reality; the price of a sale is also actual reality; everything is actual reality.

[Speaker K] Maybe the poor person relies on the thing, otherwise he won’t have…

[Rabbi Michael Abraham] No, poverty is something else. You’re giving me moral considerations. I’m not talking about moral considerations. We’re talking about the halakhic definition. So the Kesef Mishneh, when he explains—right, exactly—when the Kesef Mishneh explains why the price of a sale is not cancelled, he doesn’t say it’s because the sale price is an acquisition and like a deposit. Rather, he says that the price of a sale is not the normal way of a loan; you didn’t do a favor for someone in need. And the law of cancellation of debts does not apply to that. If so, if that is the Kesef Mishneh’s explanation, then with wages you can say the same thing. With wages, basically it’s… no, after all, why are wages not cancelled? When I owe the worker money, I’m not the needy one here. If anyone is needy, it’s the worker. Here, this is what you said. According to the Kesef Mishneh, the explanation really is a moral explanation, not an explanation in technical definitions like we saw in Maimonides. Then you can simply understand why wages are not cancelled. They are not cancelled because the unfortunate one here is the worker, not me. Why should the debt-cancellation laws cancel the worker’s money for my benefit?

But on the other hand, my claim is that the Shulchan Arukh can accept Maimonides’s approach in principle—that the price of a sale is an acquisition of value, while wages are the creation of an obligation. He just holds that regarding debt cancellation it is irrelevant whether this is an acquisition or an obligation, and therefore he needs other explanations there for why it is not cancelled. But for our issue, the question we are discussing—whether this can apply to a specific type of payment—here the Shulchan Arukh can accept what I said in Maimonides and say that in the price of a sale, since I acquire the payment, as Maimonides says, the matter of debt cancellation won’t help; there another explanation is needed for why it isn’t cancelled. But as for acquisition, he also agrees that it is an acquisition. If it is an acquisition, it can also take effect on a specific kind of thing, and not only in general. In contrast, wages, unlike the price of a sale, are like Rashi: only an obligation is created. If an obligation is created, then you cannot create an obligation regarding a specific thing. As long as you haven’t drawn possession, it isn’t yours; so he owes you a hundred shekels, and he’ll give you whatever he wants—not necessarily wheat. He can give you whatever he wants. And that’s what the Ran in Avodah Zarah says. Right?

Of course there is always the option of a condition—the thing we saw in Rashi in our passage. Rashi in our passage basically says that even though the sale price is not an acquisition but rather an obligation, basically like a loan, still here the obligation is accompanied by a condition, and conditions can be stipulated. And I want you to make payment to me in new silver dinars, or in wheat, and not in some other merchandise or money or whatever. And conditions can be made in transactions. So if I want the payment in that way, then I structured the transaction with that condition.

So until now I’ve done the analysis according to Maimonides, right? If it’s an acquisition. And I said that in the Shulchan Arukh one can resolve the question of the Ketzot HaSefeikot if one goes with Maimonides. But if one goes with Rashi—and if you remember, we saw that the Nimukei Yosef apparently holds like Rashi and copies him—that this is basically the creation of an obligation, not an acquisition—then the whole thing becomes more complicated. Whichever way you look at it: if you understand that it is a condition, and that’s why it works here with the Nimukei Yosef, or in the Talmud when they say “new silver dinars,” because there is a condition and I can stipulate about the payment I receive—then why can’t wages also be stipulated? There too, the worker says: I’m willing to work for you, an obligation of a thousand shekels is created for you, and I condition the transaction on the fact that when you pay me those thousand shekels, you pay them in wheat and not in something else. But the Ran says no. And that is how the Rema rules. And that is the question of the Ketzot HaSefeikot.

The question was: you, Shulchan Arukh or Rema, rule like the Nimukei Yosef that one can specify a certain payment. Meaning, in your view—and now I’m going according to Rashi—basically the stipulation can work. If he stipulated, then fine, the condition works. So why in the Ran can the worker’s stipulation that he wants payment specifically in wheat not work? A condition is a condition. If it works in the laws of commerce and sale, why shouldn’t it work in the laws of wages? What’s the difference?

Therefore, the one who asks this question is apparently asking it on the side that understands the issue as the creation of an obligation, which is like Rashi, like the Nimukei Yosef, and apparently also the Ketzot—why he asks it so strongly—or the Ketzot and the Sefeikot, if he asks this question. Okay? Now we’ll have to see how the Ketzot resolves it, but I think we’ll leave that for next time, because that would get us into details we won’t have time for. Okay, let’s stop here.