Q&A: What Is the Difference Between Betrothing with a Loan and Buying Land with a Loan
What Is the Difference Between Betrothing with a Loan and Buying Land with a Loan
Question
Hello Rabbi,
There is a Maimonides in Laws of Sale, chapter 7, halakha 4, from which it seems that one can buy a field with a loan:
If someone had a debt owed to him by another, and he said to him, “Sell me a barrel of wine against the debt I have with you,” and the seller agreed—this is as if he gave the money now, and whoever backs out receives the “He Who Punished” curse; therefore, if he sold him land against his debt—neither of them can retract, even though the money of the loan is not present at the time of the sale.
On the other hand, Maimonides rules that one who betroths a woman with a loan, she is not betrothed. This distinction is quite sensible, because there is a difference between acquiring a field and acquiring a woman in betrothal (as you wrote in the response article to Rivka Lubitch — are kiddushin the application of ownership). There are further proofs for this distinction from the fact that a woman may be betrothed with Sabbatical-year produce, but it is forbidden to buy a slave or land with Sabbatical-year produce (“for eating and not for commerce”). In addition, a field can be transferred as an adjunct acquisition together with a gift, but a woman cannot. On the other hand, there is a Talmudic passage in Kiddushin 47a from which it seems that there is no distinction between sale and betrothal:
Rav said: One who betroths with a loan—she is not betrothed, because a loan is given to be spent. Shall we say this is subject to a tannaitic dispute? One who betroths with a loan—she is not betrothed, and some say: she is betrothed. What, is it not that they disagree about this: one master holds that a loan is given to be spent, and the other master holds that a loan is not given to be spent? But can you really think so? Say the latter clause: and they agree that in a sale, this one acquires. If you say that a loan is given to be spent, with what does he acquire? Rav Nahman said: Our colleague Huna explains it as dealing with other matters, and what are we dealing with here? For example, where he said to her, “Be betrothed to me with a maneh,” and the maneh was found to be one dinar short.
How, in your opinion, can Maimonides’ position be reconciled with this Talmudic passage?
Best regards,
Answer
Maimonides holds that one cannot acquire with a loan, just as one cannot betroth with a loan. And so we also find in Laws of Sale 5:4:
Similarly, if Reuven sold movable goods to Shimon for fifty zuz, and Shimon acquired the movable goods and became obligated for the money, and after Shimon became obligated for these fifty zuz he had wine or an animal or a slave and the like among other movable goods and wanted to sell them, and Reuven said to him, “Sell it to me for the fifty zuz that you have in your possession from the sale money,” and he said yes—Reuven acquires the movable goods wherever they are, even though he neither pulled them nor lifted them, because this too is an uncommon matter and they did not require pulling in such a case. But if he had a debt owed to him not arising from the sale, and he said to him, “Sell me movable goods against the debt I have with you,” and they both agreed, he does not acquire until he lifts it, or pulls something that is not normally lifted, or acquires it by one of the ways in which movable goods are acquired.
True, that is said regarding movable property, since according to Jewish law money does not acquire movable property (therefore the problem is not the loan but the fact that this is an acquisition by money). But with land, it seems that one really does acquire with a loan. [I once explained here the difference between a loan and sale proceeds (I don’t remember where).]
And regarding the Talmudic passage, I didn’t understand where you saw a contradiction. The Gemara does not compare kiddushin to buying land; rather, it argues that if we require money in hand, there should not be a distinction between them. But if the problem is the very fact that this is a loan, irrespective of whether the money is physically present, then there is no necessity for kiddushin and buying land to have the same law.
I now thought that perhaps Maimonides explains “and they agree regarding a sale” to mean that they agree that when one acquires with sale proceeds (as opposed to a loan), he acquires—not that one can buy a field with a loan. That would contrast sale proceeds with a loan, not sale as opposed to kiddushin. And then this is exactly the law I cited.
But the straightforward meaning of the passage there is that “they agree regarding a sale” means that one acquires a field with a loan; that is, it is speaking about acquiring land, where a loan is also effective. And that too works well according to Maimonides.
By the way, “they agree regarding a sale” is not marked there in Ein Mishpat as normative Jewish law.
Discussion on Answer
That’s not your difficulty (from the fact that the Gemara compares kiddushin to sale), but one based on reasoning. He asks why, according to Maimonides, one can acquire with a loan if one cannot betroth with a loan—after all, if a loan is not considered money, then it also cannot effect an acquisition.
And as for what you didn’t understand in his answer: he cited the Maggid Mishneh, who explains that Maimonides follows a different sugya and does not rule like the sugya that connects kiddushin to sale. From that point on, these are only various possible explanations of the distinction.
According to the Maggid Mishneh’s answer, why didn’t the Gemara here on page 47 answer the question “With what does he acquire?” by distinguishing between sale and kiddushin—namely, that in a sale one can acquire with a loan? After all, that distinction already appears in the Mishnah.
According to his approach, that distinction does not appear in the Mishnah, otherwise the Gemara could not disagree with it. According to the sugya that holds there is no distinction between kiddushin and sale, when the Mishnah says that one acquires with a loan, it holds that one may also betroth with a loan. And the other sugya disagrees with that and distinguishes between them.
My difficulty is formulated more clearly at the beginning of this link:
https://www.yeshiva.org.il/midrash/4885
It’s just that I didn’t understand from there how Maimonides fits with the Gemara, which implies that one cannot buy a field with a loan (“If a loan is given to be spent, with what does he acquire?”).