Halakhic ‘Taking Possession’ vs. Aggadic ‘Statement’- Which Has the Upper Hand?
Chapter 4 of Bava Metzi’a addresses fairness in trade and commerce, focusing on two issues pertaining to the relationship between the asset that is acquired by the buyer and the payment given in return to the seller. The Mishna starts off by establishing (mishnayot 1-2) that it is only through the physical taking possession of the object that the acquisition is completed, and then goes on to discuss various forms of discrepancy between the real value of the item and the amount that is paid for it (ona’a). Finally, the Mishna turns from the legal sphere of ona’a in commerce to the moral sphere of ona’at devarim (mishna 10), which involves utterances that include an element of deceit or cruelty, and adds to this category the prohibition on commercial tactics involving dishonesty and deception (mishnayot 11-12). The Mishna highlights the thematic connection between the laws of ona’a that occupy the main body of the chapter, and the types of cheating with which it concludes, by citing examples of trickery relating to establishing the price of the object, such as: “One shall not say to him, ‘For how much [will you sell] this object?’ if he is not interested in buying it” (mishna 10); “[The seller] shall not reduce the rate [i.e., quote a price that is lower than the accepted market price in order to draw customers at the expense of his competitors]” (mishna 12)1.
II. Two Aggadic Mishnayot at Beginning of Chapter
Two aggadic mishnayot that appear near the beginning of the chapter add a conceptual, moral dimension to its two central topics. The first aggadic expansion, at the end of mishna 2, concludes the first halakhic topic – completing the effectuation of the acquisition – with a moral statement. While the two parties may still renege on the deal even after the payment has been handed over,
- “Our Sages taught: He Who punished the Generation of the Flood2 will punish a person who does not keep his word.”
The second aggadic expansion is attached to the presentation of the measurements relating to ona’a, at the beginning of the unit covering mishnayot 3-9. Surrounding the mishnaic definition of the amount that is defined as ona’a, i.e., a sixth3 of the overall purchase price, and the rule that a customer who was deceived when paying for the item is permitted to cancel the sale and return the purchase “until [i.e., during the time it takes while] he shows [the purchase] to a merchant or an [expert] kinsman” who knows the proper price for the item, the Mishna recounts the following narrative:
The second aggadic expansion is attached to the presentation of the measurements relating to ona’a, at the beginning of the unit covering mishnayot 3-9. Surrounding the mishnaic definition of the amount that is defined as ona’a, i.e., a sixth3 of the overall purchase price, and the rule that a customer who was deceived when paying for the item is permitted to cancel the sale and return the purchase “until [i.e., during the time it takes while] he shows [the purchase] to a merchant or an [expert] kinsman” who knows the proper price for the item, the Mishna recounts the following narrative:
Rabbi Tarfon taught in Lod: ‘[The threshold for] Ona’a [that must be repaid] is [an overcharge of] 8 pieces of silver per sela; i.e., a third of the purchase price’ – and the merchants of Lod rejoiced.[Then] he added, ‘But throughout the whole day it is permissible [for the buyer] to return [the purchased item].’
They said to him, ‘Rabbi Tarfon, leave things as they were,’ and they reverted to the teaching of the Sages.
This brief vignette is conveyed with a subtle play on words. Rabbi Tarfon tells the merchants of Lod, “Throughout the whole day it is permissible [for the buyer] to return (le-hahzir) [the purchased item]”, and at the end of the story the merchants “reverted (hazru) to the teaching of the Sages”. While the root h-z-r is fairly common in the Mishna4, in this instance the echo seems to be more than just coincidence. First of all it should be noted that this word links the halakhic-aggadic discussion surrounding ona’a to the previous halakhic-aggadic discussion in our chapter: mishna 2 established that even after payment has been made, “he may retract [lahzor bo]…”. In total, the root h-z-r appears five times over the course of mishnayot 2-3, in three contexts: the nullification of a sale owing to the absence of an effectuating act (i.e., taking possession of the object); nullification of the sale owing to deviation from the market price; and – finally – the retraction of the decision of the merchants in Lod to follow Rabbi Tarfon’s teaching, and a return to the original ruling of the Sages.
Another linguistic link between the forms of acquisition discussed in mishnayot 1-2 and the ona’a that is discussed later on in the chapter is the expression “has the upper hand” (yado al ha-elyona) (mishna 2, mishna 4)5. The following table summarizes the linguistic links between the forms of acquisition and ona’a:
Forms of acquisition (mm. 1-2)
Ona’a (mishnayot 3-4)
How [is the sale effectuated]?
If he took the fruit from him and did not give him payment –
He may not retract (lahzor bo);
If he gave him payment but did not take fruit –
He may retract (lahzor bo);
But [our Sages] said, He Who punished the generation of the Flood6 will punish a person who does not stand by his word.”
Rabbi Shimon said: Whichever party it is that holds the money – he has the upper hand.
Until when it is permissible to return (mutar le-hahzir) (the purchased item)?
While he shows it to a merchant or an [expert] kinsman.
Rabbi Tarfon taught in Lod: ‘[The threshold for] Ona’a [that must be repaid] is [an overcharge of] 8 pieces of silver per sela; i.e., a third of the purchase price’ – and the merchants of Lod rejoiced.
He added, ‘But throughout the whole day it is permissible [for the buyer] to return it (mutar le-hahzir).
They said to him, ‘Rabbi Tarfon, leave things as they were,’ and they reverted (hazru) to the teaching of the Sages.
Whichever party it is that was defrauded – he has the upper hand.
Aside from these linguistic connections7, there is also a clear conceptual and thematic connection. Both units address the possibility of returning the purchased item and the money to their original owners8, and in both cases the right to retract is rooted in the relationship between the item and the money. Here the difference between the two units stands out clearly: in mishnayot 1-2, the right to retract is anchored in a formal defect in the purchase procedure, based on a fundamental discrepancy between the purchased item and the sum paid for the purchase: the essence of the purchase is dependent on a transfer (“taking possession”) of the object; the transfer of money does not lend final validity to the sale. In contrast, the focus in mishnayot 3-4 is not the fundamental difference between the object and the money, but rather the connection that halakha insists must exist between them: a deviation from the accepted market price9 impairs the validity of the sale on the moral level, thus allowing retraction even after the purchase has been effectuated10. The two linguistic links that connect the units indicate the difference between the two types of nullification or cancellation. While mishnayot 1-2 employ the expression lahzor bo (to retract), in the simple active form, in mishnayot 3-4 the verb appears in the causative form: le-hahzir (to return). The reason for this is that in mishnayot 1-2 the person retracts his agreement prior to the completion of the act of purchase, while mishnayot 3-4 allow for a return of the purchase11 even once the purchase has been completed. Likewise, the ruling that “he has the upper hand”, in mishna 2, anchors the right to return the item in the actual possession of the money – reflecting the upper hand of the seller in the intermediate stage of carrying out the purchase, while mishna 4 uses the same words to anchor the right to nullify the sale in the moral injustice: whichever party has unjustly lost money, is entitled to restore matters to the way they were.
Seemingly, these two forms of “retracting” or “returning” are very different from one another: retraction of a sale before the object is actually grasped or taken is anchored in a formal, legal consideration – the absence of a definitive act of purchase. The returning of a purchase because of ona’a, on the other hand, is anchored in the moral consideration of inflated prices12. However, a closer look at the aggadic passages belonging to each of these areas of halakha reveals that the connection between the two types of “retracting” or “returning” is more complex. The clarification of this issue will also expose a third usage of the verb h-z-r in mishna 3: “they reverted (hazru) to the teaching of the Sages.”
III. “He Who Has Punished (Repaid) – Act and Speech”
Let us start off by addressing the warning of the Mishna, “He Who punished (mi shepara (lit. He Who repaid)…”. A closer look at the curse13 reveals something peculiar: it is directed to someone who cancels a purchase after the money has already been handed over, but the actual wording addresses something else entirely: “… He will punish one who does not stand by his word.” Seemingly, this formulation is out of place in the case of someone who cancels a sale after paying; it seems better suited to a different scenario, which is discussed in the Tosefta and in the Talmuds immediately after the warning, “He Who punished….”:
- One who engages in a verbal transaction does not effect a sale, but if he retracts – the spirit of the Sages is displeased with him14.
The baraita establishes that a person who retracts a verbal commitment does not invite the curse of “He Who punished…”; the Sages suffice with an expression of displeasure concerning this behavior. Only in the event that payment has already been handed over by the customer to the seller do the dayanim apply the curse of “He Who punished…” to a customer who retracts. Why, then, is the curse directed towards one who “does not stand by his word“, instead of focusing on an act that was in fact performed: i.e., the retraction of the act of giving over payment? The answer that suggests itself here is that the Mishna perceives a close connection between speech (“verbal transactions”) and the use of money as a means of purchase. In this spirit Rashi explains that the curse of “He Who punished…” is imposed “because the words have attained practical significance”15. This suggests that the handing over of payment is not an act of purchase, but rather a practical demonstration of the verbal commitment (“transaction”) to carry out the purchase.
The connection between payment and speech is rooted in our fundamental conception regarding the essence of ownership and purchase. The well-known mishna in Massekhet Kiddushin anchors the act of purchase, or acquisition, in physical control over the object:
- Ownership16 by a layman – [is accomplished by taking] possession (M. Kiddushin, 1:6).
In other words, a person acquires objects when he demonstrates control over them. Handing over payment, in contrast, does not demonstrate physical control over the purchased object. The power of the act lies in the symbolic significance that society attaches to this flattened lump of metal stamped with a government seal. This lump of metal, recognized by society as equivalent in value to real assets, expresses society’s acknowledgment of the fairness of the deal. There are some areas, such as transactions involving hekdesh (consecrated assets), human beings, and land, in which purchase and ownership are determined on the contractual, social level, rather than on the level of physical control17. However, when it comes to purchase of movable property, where ownership is rooted in physical possession, the handing over of money is not an act of acquisition but rather a practical expression of the mutual desire on the part of the seller and buyer to carry out the transaction.
IV. Act and Speech in Modes of Acquisition
The connection between the transfer of money and a “verbal transaction” (“devarim“) is rooted in principles that the Mishna establishes in various places. The Mishna that asserts that “in lay matters, ownership is established through possession” (Kiddushin 1:6), continues with a dual contrast between matters of hekdesh (“High authority”) and lay matters:
[In the realm of] the High Authority (i.e., hekdesh) ownership is established through money; [in the realm of] the lay authority (i.e., in regular human affairs) acquisition is made through establishment of possession.
A verbal commitment in the realm of the High Authority is equivalent to [physical] transfer in the realm of the lay authority18
In contrast to lay transactions which are effected by means of a transfer of physical control (“possession” = “transfer”)19, hekdesh – property dedicated to the Temple is acquired in two ways: through monetary payment, or through verbal commitment20.
This mishna, then, contrasts ordinary transactions with the handing over of money and the verbal statement, each of which can effect a transaction with regard to hekdesh. When it comes to hekdesh, an expression of will through the accepted means – a verbal statement or payment of money – is sufficient for the transfer of property from the possession of one entity to the possession of a different one; there is no need for its physical transfer to the control of the buyer. In this context, mention should also be made of the instances in which – according to the opinion of Rabbi Yehuda – we cannot rely on either monetary payment or a statement alone; the transaction is to be effected through the combination of both means:
One who redeems ma’aser sheni but does not designate it verbally as such – Rabbi Yossi says, This is sufficient; Rabbi Yehuda says: he must designate it [verbally – explicitly].
If a man discussed matters of divorce or marriage with a woman, and gave her [the sum owing] for her divorce or marriage, but did not explain his action verbally – Rabbi Yossi says, This is sufficient; Rabbi Yehuda says: He must explain it verbally. (Ma’aser Sheni 4:7)21.
Attention should also be paid to the indirect connection drawn by the mishna elsewhere, between money and the statement. In the same way that the mishna in Bava Metzi’a, at the beginning of chapter 4, presents meshikha (taking possession) in contrast to the handing over of money, the opening mishnayot of Bava Metzi’a chapter 1 present the statement as a contrast to physical possession:
- In mishnayot 1-2, the “grasp” (ahiza) of each of the contending parties confers a percentage of ownership based on the nature of the statement that accompanies them (“It is altogether mine” or “it is half mine”);
- In mishna 3, a “statement” (amira) of “Give it to me” or of “I have acquired it” (zakhiti bah) has no validity, so long as it is the other contender who is in possession of the object;
- When the object is in one’s field, the statement that “my field has acquired it for me” is sufficient to give him ownership – on condition that the object is something that he is capable of reaching before it escapes from his field22.
These mishnayot demonstrate the importance of both of the physical element (the “grasping”, or possession) and the socio-legal element (the “statement”) in the transactional system. In mishnayot 1-3 the dominant element in determining ownership is the physical grasp (possession) of the object – but only on condition that this possession is accompanied by a statement that supports its legitimacy. In mishna 4, the “statement” assumes the validity of the establishment of purchase, but only because this statement is backed up by a certain type of physical control: the presence of the object in the speaker’s field, in circumstances that allow the owner of the field to seize the object while it is still within his property. In circumstances such as these, the physical grasping of the object is unnecessary, and the “virtual” grasp achieved by stating “my field acquired it for me” is sufficient23.
IV. Money as an Act of “Speech”
“Money” in Bava Metzi’a thus plays a similar role in chapter 4 to the “statement” in chapter 1, expressing the desire of the parties to carry out the transaction. In the eyes of the halakha, this does not suffice to transfer ownership – just as the statement in chapter 1 did not suffice to effect the purchase and bestow ownership. However, “He Who punished…” teaches that the handing over of the money has added an important dimension that goes beyond the “statement”: the moment that the verbal agreement between the parties to carry out the transaction receives some tangible, socially recognized expression, it receives moral validity, receives moral validity, leading society to expresses its – and God’s – aversion towards one who then retracts. Since the injustice involved here is one of “speech” – i.e., it offends the conventions upon which society is based24 – it is appropriate that the sanction applied against him comes in the form of the “statement” that “He Who punished…”. And just as the “statement” that caused the injustice led to an action (the giving of the money), the statement which expresses society’s dissatisfaction (the court’s proclamation of the curse) promises verbally that the punishment will indeed be carried out by God25.
Through the curse of “He Who punished…” the Sages give severe expression to their opposition to retracting a sale, as is evident from the wording of the curse. First, let us note the term employed by the Mishna to describe the punishment of the Flood generation and of one who retracts a sale: “He Who punished (para’)”. The Sages use a variety of different terms to describe Divine punishment, including ‘a-n-sh (Makkot 1:7; Tosefta Sotah chapter 3 law 16); l-k-h (Sotah chapter 3 halakha 15 et. seq.; chapter 4 halakha 10 et. seq.)26; and d-y-n (Yerushalmi Sanhedrin chapter 10, law 3, 29b; Bavli Rosh ha-Shana 12a). It would seem that the use of the word “p-r-a” here is not arbitrary: the injustice that has been perpetrated is related to the concept of “pera’on” – the monetary compensation for the item that has been purchased. If someone who committed himself to a sale does not honor the “pera’on” that has already been effected, then he can expect to be punished by Him Who is trustworthy and can be relied upon “lifro’a“, to repay, each person in accordance with his actions.
The mention of the “Flood generation” is also significant. The Flood generation represents total corruption of society due to ‘hamas‘ – robbery – to which the Sages ascribe in several places a broader meaning than “theft”, extending it to include instances where there is a gap between formal law and moral judgment. In the context of our mishna, the Yerushalmi cites R. Aha’s portrayal of the sin that typified the Flood generation: they would each steal “less than the value of a perutah“, such that the victim would not be able to sue for his loss in a beit din27. If we assume that our mishna understands the sin of the Flood generation in a similar way, then the message comes across sharply and clearly: adherence to the letter of the law is no guarantee against the corruption of society. The people of the Flood generation knew how to exploit loopholes in the letter of the law in order to rob one another; from here the road to an unraveling of the social fabric is short28. A person who does not stand by his word, and who tramples the socio-moral significance bound up with the handing over of money, likewise endangers the social fabric. It is in relation to the corrupted traits of the Flood generation, on one hand, and to one who goes back on his word, on the other, that the Mishna invokes “Him Who punished…”: God stands by His word and executes His repayment; He will punish those who damage these values, which are the foundation for the proper functioning of society29.
It would seem that the messages arising from the threat of “He Who punished…” and from the mention of the Flood generation might also be understood in a different way, closer to the plain meaning of the mishna: the mishna equates the retraction of a transaction to the “robbery” of the Flood generation, since the act does entail an aspect of theft, and Divine justice serves as a sort of “pera’on” – repayment – for this act30. This understanding seems to be suggested by the Talmud Bavli, end of 47b: “If we accept the assumption that money effects the purchase according to Torah law [and it was the Sages who insisted that there also be an act of taking possession], then it is for this reason that the person is subject to, ‘But [the Sages said, He Who punished…]'”31. While on the legal, practical level the Sages determined that only a transaction that involved taking possession renders the deal final, the curse of “He Who punished the Generation of the Flood” teaches that giving over money renders the retraction of a sale an act of theft32, at least from a moral standpoint33.
By means of the curse of “He Who punished…”, the Mishna thus expresses some important principles concerning the significance of transactions in general, and monetary transactions in particular. Since the act of purchase is meant to accord social recognition to a person’s ownership of something that has entered his possession, the purchase of movable property is accomplished by demonstrating physical control (taking possession), while money serves only as concrete expression of a “statement” – in other words, of the mutual commitment of the parties to the transaction. On the legal level, the commitment – even when expressed tangibly in the form of money – does not finalize the transaction. However, the payment of money is given recognition, at least on the moral level, by the society that grants it symbolic power, and in the world of hekdesh not only money but even a statement effects a legally valid transaction. Through the curse “He Who punished…”, society draws an analogy between violation of a “statement” and the Flood generation, corrupted by misdeeds related to property, and in view of that party’s refusal to honor the validity of the “pera’on” (payment), society promises that God will exact punishment (pera’on) for his corrupt deeds.
Hence we might understand the moral statement underlying the curse of “He Who punished…” in two ways. According to the first understanding, “He Who punished…” expresses the societal importance of adhering to the moral commitment created through a statement or through monetary payment, rather than following the letter of the law. According to the second explanation, the transaction itself assumes a moral dimension: while the law awards validity to a transaction only through the act of physical possession, social and Divine morality confer “transactional” power to a commitment – on condition that this commitment receives some tangible expression (money) and is not only verbal.
V. Acquiring through Money and the Laws of Ona’a
Before examining the story of Rabbi Tarfon and the merchants of Lod, let us review the two linguistic connections that link the laws of ona’a to the laws of purchase of movable property using money: the root h-z-r (retract or return) and the expression “he has the upper hand”. As we saw above, the different ways in which these expressions appear in the two contexts of mishnayot 1-2 and mishnayot 3-4 highlight the legal and conceptual difference between the two situations. In the first two mishnayot, the monetary payment is done properly, but absent an act of possession the transaction has not been finalized and may be retracted. Mishnayot 3-4 present a mirror-image of this situation: here the act of purchase (possession) has been carried out as required, but the payment is defective, due to a discrepancy between the real value of the object and the price paid for it, and this moral defect serves, even on the legal plane, to nullify a transaction that has already become valid. This difference will be better understood in light of our understanding of the significance of the money and the act of possession. In mishnayot 1-2, the right to retract (hazara) is anchored in the absence of physical control (meshikha), lasting accordingly until the finalization of the transaction by transferring possession. In mishna 3, on the other hand, the moral defect involved in paying an unfair price undermines the consensual basis for the transaction, allowing for return (hazara) of the item even after the physical transfer has been completed.
Turning to the story of Rabbi Tarfon and the merchants of Lod, we note that this aggadic addendum differs in nature from the aggadic addendum in mishna 2. “He Who punished…” in mishna 2 exemplifies the many aggadic statements designed to teach that “the halakhic obligation is not sufficient; to this the religious sentiment of the aggada must be added”34. In mishna 3, however, the moral dimension is an integral part of the halakhic aspect of ona’a, as demonstrated by the law that a transaction can be retracted even after its consummation. At first glance the story of R. Tarfon seems to address a halakhic detail which requires modification in his view. However, the negotiations between R. Tarfon and the merchants, along with the wordplay on the word h-z-r, suggest that deeper ethical and social messages are concealed beneath the halakhic argumentation.
First let us consider the dialogue between R. Tarfon and the merchants. In this dialogue the issue of ona’a is transposed from the private sphere to the public arena. The laws cited by the Mishna, both before and after our narrative, pertain to ona’a as a private injustice that one person perpetrates against another. The figure of the “merchant” cited at the end of the halakhic portion of mishna 3, is a private individual characterized by experience and expertise in matters of pricing. In contradistinction to to the private nature of the Mishnah’s legal rulings, the narrative concering R. Tarfon and the merchants of Lod relates to the establishment of public policy, thus revealing an additional dimension of the laws of ona’a as an important component of social justice35. Determining the “sha’ar” – the market price – is an important aspect of municipal administration: “The people of the city are entitled to set market prices, and standard measurements, and wages to workers” (Tosefta Bava Metzi’a 11:23)36. However, R. Tarfon’s proposed ruling does not seek to attain the administrative goal of regulating the official price, but rather the religio-spiritual goal of regulating the behavior of the city merchants such that the laws of ona’a not be transgressed37. At this point we discover an interesting connection between “He Who punished…” and the story of R. Tarfon: in both instances the halakha presents guidelines pertaining to the private realm, focusing on the individuals who are parties to the transaction, while the aggada exposes the social dimension of the issue.
VI. R. Taron and the Merchants of Lod
Let us take a closer look at the details of the discussion between R. Tarfon and the merchants. It is difficult to gauge the exact nature of the authority structure underlying the dialogue recorded in the Mishna. R. Tarfon is familiar to us from other places as the foremost among the Sages of Lod of his generation38, and in our story, too, he behaves like someone with the authority to issue halakhic rulings for the merchants of Lod. At the same time, it is the merchants who have the last word in the story, rejecting R. Tarfon’s ruling and reverting to the ruling of the Sages. The story’s conclusion gives the impression that they hold the authority to set policy regarding deviation from set prices, even though this is a matter of halakha39. The question regarding the balance of power in this narrative cannot be divorced from another question regarding the basis for R. Tarfon’s rulings. He seems to disagree with the Sages regarding two distinct and independent laws presented in the first section of mishna 3. However, viewed from the standpoint of halakhic logic, R. Tarfon’s opinion on both points seems highly unintelligible. Raising the bar for ona’a entails the assumption that the average customer is likely to forgive a price markup that diverges from the official market price by as much as a third, and it is difficult to imagine that this accurately reflects the general public mood. Even more difficult to understand is the logic of extending the time during which the transaction can be cancelled because of ona’a. It is eminently reasonable to allow the customer, as do the Sages, sufficient time to consult the relevant experts regarding the fairness of the price. On the other hand it is not at all clear why R. Tarfon thinks it fair to grant the customer additional time (till the end of the day) for this inquiry. Both of R. Tarfon’s rulings are therefore puzzling: what motivated him to modify two rulings of the Sages which seem eminently reasonable, and to suggest replacing them with rulings that make no apparent sense?
In order to understand the significance of the story, I believe that two fundamental assumptions are necessary. The first is that the logic of R. Tarfon’s ruling should be sought in the aggadic, rather than in the halakhic, domain, The second assumption is that, within the aggadic realm, R. Tarfon’s two rulings are not separate and independent, but rather are closely bound up with one another. In keeping with these two assumptions, I propose that what R. Tarfon sought to achieve through his rulings is exactly what was in fact achieved: the response of the merchants of Lod as recorded in the Mishna40. The glee with which the merchants greet R. Tarfon’s first ruling exposes a widely known but unspoken “secret” – the routine practice on the part of the merchants to inflate prices41. Consequently they are delighted with R. Tarfon’s raising of the upper limit for ona’a, since this new ruling enables them to increase their profits by up to a third of the price without fear of the transaction later being cancelled, whereas beforehand any profit exceeding the market price by a sixth would entail this risk42.
The response of the merchants to R. Tarfon’s second ruling reveals even more about their commercial world-view. On the face of it, we might have imagined that the second ruling would have little practical impact, for two reasons: (a) if the merchants were indeed careful not to risk cancellation of the sale by exceeding the permitted profit limits, then surely the extension of time allowed for checking the price will have no impact; (b) even if occasionally a merchant would takes the risk of raising the price beyond the ona’a limit, why should extending the time from “showing it to a merchant or to his relative” to “the end of the day” make such a difference? The Sages had already permitted the customer sufficient time to consult as to whether he had paid a fair price; why, then, would an extension of a few hours upset the merchants to such an extent? Taken together, these two questions lead to a single conclusion: the merchants were regularly selling at inflated prices that went far beyond the limits even of R. Tarfon’s suggested upper limit for ona’a, and moreover they were not concerned about customers utilizing their allotted time allotted to discover that they had overpaid. Presumably the reason for the merchants’ confidence is that the Sages had placed responsibility for discovering ona’a entirely on the customer, requiring him to hurry and show his purchase immediately to an expert in order to return merchandise with the claim that he had been overcharged. Tarrying even slightly in carrying out his inquiry would allow the minimum time frame allotted by the Sages to pass43, following which the customer would be considered as having forgiven the overcharge44. Hence, while it makes legal sense to hold the customer responsible for inquiring promptly about the price, the actual result, of which the merchants of Lod were well aware, was that retraction by the customer was highly unlikely. In reality, few customers would proceed immediately to inquire about the true value of their purchase45.
In view of the above, R. Tarfon’s second ruling is extremely far-reaching. Extending the time for inquiry about the price by even a few hours gives every customer a real opportunity to consult an expert at his convenience – and there is almost no-one who will not encounter, sometime during a whole day, a relative or a merchant who knows enough to tell him that he has overpaid. The import of R. Tarfon’s ruling was to change the opportunity to inquire about the price from a theoretical possibility to a real one, which would surely result in retractions due to claims of ona’a becoming a common phenomenon. Consequently the increased profits that R. Tarfon was offering to the merchants in his first ruling would remain on paper, while the profits they were already reaping would put in serious jeopardy. Hence, the merchants rejoiced at the first ruling, which removed the threat of retraction of a sale in those cases where the merchant had sufficed with a modest overcharge of less than a third. The second ruling, however, forced them to expose their dirty secret: that in fact, not only are they regularly overcharging, but they are commonly inflating prices – even prior to R. Tarfon’s ruling –by more than a third, relying on the laziness and/or the naivete of the customers to protect them from having their merchandise returned. Consequently they preferred to leave the original formal law intact, setting a relatively low limit for ona’a, as long as their customers continue to be denied a realistic and convenient period of time for checking the fairness of the price46.
We can now understand the aggadic objective that R. Tarfon set for himself. Both of his rulings are meant to address the same need: to expose the true face of the merchants of Lod. Their enthusiastic embrace of his first ruling exposes their readiness to build their income on the basis of ona’a that falls short of the limit at which a transaction can be cancelled. Their opposition to his second ruling exposes the true dimensions of their ona’a: they are regularly defrauding their customers by more than a third, while relying on the inconvenience of the pressured time-limit for consultation to protect them form cancellations. It must be emphasized that it is only by virtue of the first ruling that the true scope of the ona’a that is being practiced – above a third of the price – is revealed.
VII. R. Tarfon’s Deal and the Merchants’ Rejection
We now return to the question of the balance of power between R. Tarfon and the merchants. The merchants do not accept R. Tarfon’s ruling as binding, and they “return”, on their own initiative, to the original teaching of the Sages. But we now realize that R. Tarfon himself – who presumably knows his limitations – had no intention of changing the original law; his rulings were intended only to expose the major role of fraud in the dealings of the merchants. Here the obvious question arises: what did R. Tarfon want to achieve through this revelation, and why did he choose this way of achieving it? Furthermore, even assuming that it students of the Mishna might understand that R. Tarfon’s rulings fail to conform to halakhic standards, it is difficult to understand how the merchants took upon themselves the authority to decide that R. Tarfon’s rulings were halakhically unacceptable and could be ignored.
In response to the second question, let us consider the religious profile of the merchants, as depicted in our narrative – to what extent are they willing to allow halakhic and religious norms to govern their commercial behavior? The answer that emerges from the story is somewhat complex. On one hand, we have seen that they are prepared to transgress the biblical prohibition, “One shall not defraud his brother” by charging highly inflated prices clearly defined as ona’a, by any yardstick. On the other hand, they clearly view themselves – whether voluntarily or by virtue of coercion on the part of the beit din – as subservient to the legal norms set down in the halakha. They will honor the demnad of a customer to cancel a sale due to ona’a, on condition that the claim meets the standards established by the halakha. For this reason they rejoice at R. Tarfon’s first ruling, and even when they later reject both of R. Tarfon’s rulings, they don’t abandon the framework of halakha, but merely revert to the original, conventional halakhic guidelines. Thus their attitude towards rabbinical authority is ambivalent: they do not nullify rabbinical halakha or seek to liberate themselves from it, but there are clear limits to their willingness to managing their business.in accordance with rabbinic instruction.
While this understanding of the merchants’ attitude towards halakha and rabbinic instruction makes sense of their behavior and helps answer our second question (the merchants’ freedom to decide which ruling they will follow), it would appear to sharpen our first question: if the merchants’ willingness to obey rabbinical instruction is indeed so limited, what did R. Tarfon hope to achieve by this dialogue? Perhaps his intention was merely to expose publicly the true face of these merchants. However, the wordplay in the Mishnah on the word h-z-r helps point the way to a more satisfactory understanding of R. Tarfon’s goal. We may interpret the “reverting (hazru) to the teaching of the Sages” in light of the other appearances of the root h-z-r in adjacent passages, yielding the following idea: the merchants “retracted the sale” that R. Tarfon was offering to “sell” them. It would seem that this reading of the story is supported by the words of the merchants: “Rabbi Tarfon, leave things as they were” (literally, “leave us in our place”). What R. Tarfon had sought to do was to uproot them from their place, to draw them (meshikha) to a different place – a metaphor which conjures up the image of acquisition by means of physical possession – and, as we shall see below, this image is further reinforced by the description of the merchants’ initial joy and later retraction.
R. Tarfon knew that he could not compel the merchants to conduct their business affairs in accordance with religious laws and values47. He also knew that the accepted halakha, to which the merchants of Lod were supposedly committed, is built on a delicate balance between Torah values and the real-life demands of commercial life. Torah values demand that the customer be protected against inflated prices, but the halakha does not seek to disrupt normal functioning of the market by waging an unrealistic war against the standard behavior of the merchants. Accordingly, halakha allows flexibility in the matter of prices, up to a sixth of the accepted market price, without risking cancellation of the sale. Reluctance to disrupt normal market functioning further leads the halakha to limit the timeframe for cancellation of a transaction, despite the loophole that this provides for exploitation of the system by the merchants48. Aware of these considerations, R. Tarfon does not seek to impose upon the merchants of Lod a highly unrealistic halakhic ruling, but rather suggests to the merchants a deal, quid pro quo: accept the “payment” of raising the limit upon the inflation of prices, and in return I will receive from you the “merchandise” of lengthening the time allotted for inquiry and possible retraction.
R. Tarfon’s conduct in the “deal” that he offers the merchants is reminiscent of the deal set forth in mishna 2. The giving of the “money” and the “taking possession” do not take place simultaneously. First, R. Tarfon presents the part that he is “paying” in the deal – raising prices – and the merchants accept this happily. Only afterwards does he seek to “draw” them (meshikha) to a new “place”, commercially and ethically, where customers are given a longer period for checking the true market price. The merchants’ response replicates that of the seller in mishna 2: “Rabbi Tarfon, leave us in our place.” Since R. Tarfon has not succeeded in executing the “meshikha“, the merchants are entitled to “retract” – to revert to the initial ruling of the Sages (does this – metaphorically – subject them to the curse of “He Who punished…”?)
Ultimately, the halakhic “deal” that R. Tarfon proposes is not implemented, and I doubt whether R. Tarfon actually believed that the merchants would “buy” it. More probably his maneuver was intended to educate and to increase awareness, not to introduce radical changes which fail to conform to commercial reality and human nature. R. Tarfon’s educational message can be understood in different ways. It would appear, on one level, that he seeks to demonstrate – both to the merchants and to the public at large – the inherent problem involved in any halakhic response to the challenge of ona’a. In Proposing measures designed to adapt Torah values to the human and social reality, the halakha leaves a gaping loophole that wily merchants will hasten to exploit. R. Tarfon’s cunningly designed two-stage dialogue maneuvers the merchants into behavior that lays bare to public display the degree to which their profits rely upon highly inflated prices, along with the naivete and laziness of their customers.
However, it is possible that R. Tarfon hopes to achieve a more practical result. Opening people’s eyes to the extent of the ona’a occurring at their expense might arouse them to exercise greater caution and to exploit to greater advantage the halakhic tools available to them.
It is further possible that R. Tarfon nurtured overly-optimistic hopes that revealing to the full extent of their cynical exploitation of the halakhic boundaries might cause them to be ashamed, and perhaps to fear Divine punishment (“He Who punished…). This understanding of R. Tarfon’s motivations would provide an interesting reading of R. Tarfon’s way of managing his dialogue with the merchants. After proposing his first ruling, he holds off on proposing his second ruling until learning of the merchants’ response. If we assume that R. Tarfon hoped to influence the merchants themselves, the time gap separating the two rulings may be seen as a sophisticated psychological maneuver, designed to illustrate to the merchants the emotional impact of dishonesty in business. By separating his rulings R. Tarfon causes the merchants to experience initial joy which is shortly replaced by a sense of profound disappointment and betrayal, thus mimicking the emotional state of the defrauded customer, whose joy in his purchase is ultimately replaced by disappointment once he discovers the true value of of his purchase. If this is R. Tarfon’s intention, then our narrative records no visible positive results, inasmuch as it concludes with a return by the merchants to the problematic halakhic guidelines of the Sages. However, we cannot exclude the possibility that R. Tarfon continued to hope for a longer-term benefit, that the moral and emotional lesson that he conveyed to the merchants would impact in the long run on their personalities and modulate, to one extent or another, their dedication to maximizing profits at any moral cost..
Finally, we may understand R. Tarfon as directing his message towards another audience, the world of halakhic scholars, seeking to reveal them the problems inherent in attempting to coordinate the values of Torah with the realities and limitations of real-life commercial interactions. Even though R. Tarfon has no better halahic solution to offer, he deems it important to demonstrate to the Sages the depth of the chasm separating halakhic theory from societal practice. Read in this way, the link drawn by our narrative between R. Tafon’s halakhic “transaction” and the concrete transactions carried out in the marketplace may be seen in a new light. Just as material transactions are governed by the twin considerations of physical control (meshikha) and of social approbation (statement, money), the dialogue between R. Tarfon and the merchants reveals that the Torah world must also seek the appropriate balance between considerations of power and of social acceptance. In the world governed by halakha, those who possess commercial power can find ways of bypassing the moral demands of a properly-run society. R. Tarfon proposes to the merchants a way of replacing a marketplace governed by the clash between commercial power and the power of enforceable price regulation with a marketplace governed by a healthy dose of good will: the public, out of good will, will forgive a considerable level of ona’a, and the merchants in turn will agree to a significant extension of the time allowed for inquiries and clarification. In response, the merchants of Lod are more than happy to benefit from the good-will gesture of raising the limit of ona’a, but ultimately it is power that wins the day – the absence of “meshikha” (“R. Tarfon, leave us in our place”) allows them to revert (lahzor) to the teaching of the Sages.
R. Tarfon’s attempt to raise the status of “statement” and morality at the expense of the rule of “meshikha” and power does not change the face of the halakha. Nevertheless, through the Mishnah’s recording of this incident, R. Tarfon does leave his imprint on the way in which Torah scholars of future generations will view the nature of the marketplace, as well as the nature of the halakhic system.
In the opening mishnayot of chapter 4 of Bava Metzi’a we see two particularly sharp instances of tension between the respective demands of halakha and aggada. In the first example, cancellation of a sale after money has been handed over, while perfectly legitimate in the eyes of halakha, is compared aggadecally to the actions of the Flood Generation. In the second example, R. Tarfon’s expose of the Merchants of Lod demonstrates that actualization in practice of the principle of ona’a cannot be achieved by adhering to the accepted halakhic rulings, and only an aggadic approach to this matter has any hope of achieving real-life adherence to this value.
The Mishna connects these two conflicts between halakha and aggada by means of sophisticated wordplays that indicate their common conceptual and moral roots. Both conflicts occur within the framework of transactions involving movable property, and both relate to the role of money in effecting such transactions. Fundamentally money serves as an expression, by means of a socially recognized symbol, of the fairness and mutuality of the transaction. However, the marketplace brings about many situations in which the attitude towards money becomes corrupted, in one of two ways: either one of the parties fails to honor the commitment expressed by transfer of money, or the sum of money paid for the merchandise fails to correspond to its true market value. In such instances, even where the halakha recognizes the validity of the transaction, the aggada expresses a highly negative attitude towards the abuse of money49 and suggests behavior at odds with the letter of the law.
The similarity between the halakhic retraction (hazara) of a deal in mishnayot 1-2 and the aggadic reverting (hazara) from a “deal” in mishna 3 led us to a deeper understanding of the connection between the two spheres. The system of commercial transactions is built on an effort to balance nature with culture, “power” with “statement”: a transaction takes effect when a person’s possession of a certain asset earns the agreement and approval of the social environment. In both instances discussed in the Mishna – a monetary “purchase” and ona’a – the halakha proposes a different kind of balance between “power” and “statement”: the basic definition of the transaction depends mainly on “power”, the taking possession (meshikha) of the asset, while the injustice of ona’a undermines the social moral foundation of the transaction and cancels it – even after “meshikha” has taken place. The aggada objects to the initial statement of the mishna concerning the definition of a transaction – that acquisition has not come into effect so long as there is no physical transfer – with extraordinary vehemence, indicating that ignoring the commitment created by a “statement” accompanied by money may be compared to the behavior of the Flood Generation, inasmuch as it undermines the foundations of society. The message of the aggada is clear: anyone who exploits the power awarded to him by the halakha to retract his commitment to a transaction is to be defined as a “scoundrel with permission of the Torah”, and even if the court lacks the tools to punish him, God can be relied upon to correct the injustice.
The aggadic questioning of the halakhic balance when it comes to ona’a is more complex. On the face of it, the halakha gives appropriate expression to the obligation to fix a fair price and to the right of a person who is defrauded to correct the injustice. However, the story of R. Tarfon places a mirror before the society, showing that beneath the halakhic veneer of the laws of ona’a lurks a marketplace whose actual operation runs roughshod over the fairness demanded by the Torah. It is not clear how R. Tarfon expects this reflection of reality to influence the business world. R. Tarfon’s “statement”, despite its sophistication and moral power, effects no visible change in the conduct of the merchants of Lod, who “retract” on the halakhic “deal” proposed to them by R. Tarfon. Seemingly, power-based reality trumps the values of the aggada; but R. Tarfon apparently believes that ultimately his “statement” of Torah values will percolate into the real-life functioning of the hard-nosed marketplace, leading to a healthier and more just balance between power and interpersonal values.
- 1 It should be emphasized that in the cases set forth in mishnayot 10 and 12, the ona’a does not concern the price itself, but rather price-related manipulations on the part of the customer (mishna 10) or the seller (mishna 12), resulting in ona’a. In any event, the presentation of these scenarios in the Mishna is no accident: their aim is to strengthen the connection between issues of ona’at devarim and matters of ona’a in commerce. The connection between ona’a in pricing and the types of trickery described at the end of the chapter is a subject worthy of study in its own right, but it lies beyond the scope of our present discussion.
- 2 In accordance with the better manuscript versions, which make no mention of the “Generation of Divisiveness”. Two out of the three main manuscript versions of the Tosefta, chapter 3, halakha 14, likewise omit mention of the “Generation of Divisiveness”. The term does appear in the baraita in the Bavli 48a.
- 3 We shall not concern ourselves here with the question of whether this means a sixth inherent in the original price, as the term “a sixth” would be understood today, or whether it means a sixth “in addition”, i.e., a sixth of the total price, which we would refer to today as “a fifth” (20%).
- 4 There are almost 500 instances of it, of which approximately 30 are in Massekhet Bava Metzi’a.
- 5 The expression “having the upper hand” is difficult to understand with regard to ona’a, for this assertion would seem to contradict the previous statement in the mishna that “it is permissible to return [the purchased object]”. The Gemara (50b) records a dispute between Rabbi Natan and Rabbi Yehuda ha-Nassi on this point, and there is a discussion (51a) as to whose opinion is reflected in mishna 4. According to A.Z. Melamed, “Hitpat’hut Dinei ha-Ona’a bi-Mekorot ha-Mishna ve-ha-Talmud”, Yavneh 3, 5703, p. 38, mishna 3 is an ancient source, while mishna 4 is composed of later additions; hence, what we have before us may be a difference in the halakha between different generations during the Tannaic period. See further: Hiddushei ha-Ritzad (Rabbi Yosef Zvi ha-Levi Dünner), 49b (pp. 168-169); D. Sperber, Roman Palestine 200-400: The Land, Ramat-Gan 1978, pp. 138-139.
- 6 This reflects the wording of the better manuscript versions, without any mention of the “generation of divisiveness”. Two out of the three main manuscript version of the Tosefta, chapter 3, halakha 14, likewise omit mention of the “generation of divisiveness”. The term does appear in the baraita in the Bavli 48a.
- 7 In this regard it is interesting to note the Tosefta 3:16, which cites in relation to ona’a, too, the opinion of Rabbi Shimon that “The seller may retract, [but] the buyer may not retract, for [the seller] has already received payment.” In other words, Rabbi Shimon’s view concerning the monetary purchase of objects – “Whichever party it is that holds the money – he has the upper hand” – applies to matters of ona’a, too. Rabbi Yosef Zvi Dünner, Hiddushei ha-Ritzad, Nezikin, Jerusalem 5750, p. 166, maintains that Rabbi Shimon made his ruling of “he has the upper hand” only concerning ona’a, and that it was the redactor of the Mishna who applied it also in the matter of a seller retracting after the sale. See also below, n. 13, a further interesting connection, both substantial and linguistic, that the Tosefta draws between the forms of acquisition and ona’a.
- 8 Compare the words of Rabbi Yona (cited in the Tur, Hoshen Mishpat 227), who compares two cases of retraction: “Since the ona’a [involved in this transaction] amounts to more than a sixth, the sale is not fit to be upheld; this is like one who negotiates a price verbally, without actually taking possession of the purchase [such that the sale is not legally fit to be upheld].”
- 9 Concerning Hazal’s view of a “fair price”, see B. Rosenfeld and Y. Manirev, “Eizohi Ona’a? Li-She’elat Shetut ha-Ona’a ve-Hishuvah be-Halakha ha-Tannait”, Dinei Yisrael 22, 5763, pp. 157 ff..
- 10 This is hinted at in Rashi’s comment on mishna 3 (49b), explaining the expression “it is permissible (mutar) to return it”: “This comes to teach us that even [the curse of ] ‘mi she-para’ is not entailed in returning the purchase.” The return of the purchased item owing to the moral injustice represented by ona’a is completely legitimate, and the warning that “He Who punished…” has no place here. Rashi’s comment is also cited by Bertinoro on our mishna, and see the pilpul on this matter by Rabbi Akiva Eiger, ad loc, 33.
- 11 The ona’a is presented here from the perspective of the buyer and his right to cancel the sale since the price demanded of him was unfair. The Mishna does recognizes a situation in which it is the seller who is defrauded, having been paid a price that is too low: “Whichever party it is that was defrauded (i.e., whether it be the buyer or the seller) – he has the upper hand”. However, the more common situation of ona’a is where the customer is defrauded by the seller. See Hiddushei ha-Ritzad 49b (pp. 168-169), and see also below.
- 12 See Tosafot on Bava Batra 84a תד”ה אי לאו דאורייתא)): “For such a sale is not fit to be upheld” (see also the approach of Ribam, ad loc.). If the injured party prefers not to cancel the sale but rather to demand reimbursement of the sum that he was defrauded, the Penei Yehoshua to Bava Metzi’a 56a explains that this falls under the law of returning a theft, while according to Rabbi Haim HaLevi to Rambam, Laws of Sale 15:1, the obligation to return the sum of the overcharge is ‘a law and independent requirement in its own right, like the return of a theft’ [i.e., not part of the latter law].
- 13 The use of the term “curse” is based on the words of Rabba in the Bavli 48b, מילט לייטינן ליה” (we curse him), and also conforms with the formulation in the Yerushalmi, chapter 4, halakha 2, 65b: “He is handed over to Him Who punished…”. According to Abaye (Bavli ad loc), ‘אודועי מודעינן ליה’ – meaning, the Beit Din does not curse him; they merely inform him of the Divine punishment for which he is liable. This difference of opinion does not significantly impact the points discussed above.
- 14 Bavli 48a. The Yerushalmi (chapter 4, 65b-65c, 9d) discusses “One who engages in a verbal transaction” and retracts, and the conclusion there is simply that “he is not handed over to Him Who punished…” – with no mention of the displeasure of the Sages (see also Hiddushei ha-Ritzad, p. 167). The Tosefta 3:14 presents the matter differently: “One who engages in a verbal transaction does not commit any ona’a [if he retracts his purchase] but the Sages said, One who goes back on his word – the spirit of the Sages is displeased with him’. This passage presents an interesting transitional point between the issues of the act of transaction and the ona’a.
- 15 Rashi, Bava Metzi’a 48a, based on the words of the Gemara ad loc: “Where words [a verbal commitment] are followed up by transfer of money, the curse of ‘He Who punished…’ applies; where words are not followed up by the transfer of money, the curse does not apply.”
- 16 The word “reshut” here means “ownership’, in contrast to other places where the word also designates control over the object (such as: “ אין מחללין על המעות שאינן ברשותו” – Ma’aser Sheni, chapter 1, mishna 5). See B. Cohen, Jewish and Roman Law, New York, 1966, pp. 464-465. Cohen notes that the biblical terms designating ownership, such as ahuza and yerusha pertain to physical control (ibid., pp. 460-461). For an understanding of our mishna see A. Walfish, “Tofa’ot Sifrutiot ba-Mishna u-Mashma’utan ha-Arikhatit ve-ha-R’aayonit”, thesis submitted to the Hebrew University of Jerusalem, 5754, pp. 55, 57; N. Samet, “Va-ha-Hoseh Bi Yinhal Aretz – Iyyunim be-Mivnehu shel ha-Perek ha-Rishon be-Mishnat Kiddushin,” Netu’im 15, 5768, p. 13. Both these discussions also address the nature of the connection between “possession” of movable property and “possession” of land. For a different view of the taking of possession through physical control as a practical expression of the intent, see S. Albek, Yesodot be-Dinei ha-Mamonot be-Talmud, Ramat Gan 5754, pp. 29 ff, pp. 193 ff.
- 17 See N. Samet (above, n. 16), p. 13, and cf. Walfish (above, n. 16), pp. 57-59. Samet (ibid.) p. 18, n. 28, finds a similar idea in Rabbi Gottesman, Kuntresei Shi’urim, Massekhet Kiddushin, folios 3-5; Y. Brandes, “Tzura ve-Tokhen be-Kinyanei Kiddushin”, Akdamut 6, 5759, pp. 29-45. The contractual-social nature of monetary purchase is manifest when it comes to the acquisition of human beings (betrothal, purchase of Hebrew and Canaanite servants) and concerning hekdesh ([“In the realm of] the High Authority (i.e., hekdesh), ownership is established through money ” – Kiddushin chapter 1, mishna 6), since in these instances the “acquisition” designates not ownership but rather a different sort of connection. The purchase of land using money should be viewed in the same way, as I demonstrate in my essay (ibid.), and cf. Samet (ibid.). Attention should also be paid to the nature of a purchase by means of a writ of purchase, which turns a spoken utterance into a tangible object, such that this purchase, too, falls under the definition of “words that have assumed practical significance” (Rashi’s formulation, as cited above).
- 18 The Mishna is cited here in accordance with the more reliable manuscripts; see A. Walfish, Tofa’ot Sifrutiot (above, n. 16), p. 37, n. 7. In light of the contrast that the Mishna draws between the affairs of the “High authority” and the “lay authority”, it is especially interesting to note the debate among the Rishonim as to whether the source for the biblical validity of a monetary purchase of movable property (“ma’ot konot davar torah” – “money is a valid form of purchase according to Torah law”) according to the view of R. Yohanan, is to be found in transactions related to the “High authority”, as Rashi argues in Bava Metzi’a 46b; see further on this question (inter alia) Hiddushei ha-Ramban on Bava Metzi’a 47b; Penei Yehoshua 47b.
- 19 For a discussion of the use of the terms “hezka” and “mesira” in our mishna in the broader sense, to denote all types of transfer of physical control, see A. Walfish, ibid., p. 43, n. 37.
- 20 According to the Tosefta Kiddushin chapter 1, halakha 9, money is “possession” for someone who buys from the hekdesh (i.e., “pidyon” – redemption), while a verbal statement is the way in which something is acquired for the hekdesh (i.e., consecration). The relationship between the two parts of our mishna is understood in different ways in other beraitot (Tosefta Bava Kama chapter 4, halakha 3; Tosefta Arakhin chapter 4, halakha 4; baraita in the Yerushalmi, Kiddushin chapter 1 halakha 6, 61a), and see A. Walfish, Tofa’ot Sifrutiyot, p. 44, n. 41.
- 21 This mishna presents ma’aser sheni and kiddushin as intermediate instances located in between “transactions of the High Authority” and “transactions of the lay authority”: there is no need for hezka (possession), but there is a need to use jointly the two means of purchase that apply to hekdesh: both a handing over of money and a verbal commitment. The scope of our discussion does not allow for elaboration on the connection between hekdesh, on one hand, and ma’aser sheni and kiddushin, on the other, but in the present context it should be noted that concerning ma’aser sheni there is also room for purchase through meshikha (taking possession). This form of purchase is discussed in the mishna following the one cited above, and there the text notes the complex relationship, with regard to redemption of the ma’aser sheni, between meshikha and the transfer of the money. While in the case of the purchase of movable property the mishna in Bava Metzi’a presents money and the statement as a contrast to meshikha, when it comes to ma’aser sheni (and kiddushin) the mishna in Ma’aser Sheni presents meshikha and money as a contrast to a verbal statement.
- 22 The conceptual connection between these mishnayot is highlighted by the associative chain (anadiplosis) of the key expressions: “Two (shenayim)… It is altogether mine (kulah sheli)… This one swears (zeh yishaba)…” (1-2); “Two were riding (hayu shenayim rokhvin – haya rokhev (2-3); he sees the ‘find’ (ra’ah et ha-metzia)… he acquires it (zakha bah) – he sees them (running after) a find (ra’ah otan ratzin ahar metzia)…. it becomes his acquisition (zakhta lo)” (4a-4b).
- 23 This contrasts with mishnayot 3-4a, which present instances in which the intention and the statement have no impact on the situation, so long as they are not accompanied by physical possession of the object. In other legal systems, too, purchase and ownership are perceived as a combination of physical control and social convention. See, for example, B. Cohen, Jewish and Roman Law, p. 467; “The Intellectual Tyranny of the Status Quo”, Econ Journal Watch http://econjwatch.org/section-archive/#intellectual-tyranny-of-the-status-quo
- 24 Compare the Rambam’s words in his Laws of Sale 7:1: “The person who retracts – whether the purchaser or the seller – is considered not to have conducted himself in a Jewish manner.” See also Maharsha, Hiddushei Aggadot 49a (ד”ה אבל אמרו מי שפרע ), based on assertion of the Gemara (49b) that one who retracts a sale does not “perform a deed of [or ‘act in the way of’] Your [God’s] people”. Rashi bases this assertion on the verse, “The remnant of Israel shall not perform iniquity, nor speak lies” (Tzefania 3:13). According to the Ritba ad loc, Abaye maintains that “since [the retraction] comes as a result of a shift in value [of the item], or because it turns out that the buyer does not need the item, therefore [the buyer who retracts] is not excluded from category of ‘the remnant of Israel’.”
- 25 Entrusting the punishment to God may be viewed as reflecting the inability of the human legal system to carry out complete justice. However, the conception that money and statements are the accepted forms of acquisition in the realm of hekdesh, provides an additional perspective: while the human legal system does not view a statement or the handing over of money as valid ways of effectuating a transaction, divine justice does confer upon statements and money, even in secular transactions, validity similar to that which they possess in transactions involving hekdesh. In other words, the threat of “He Who punished…” imbues secular transactions involving movable property with a dimension of sanctity (cf. Rashi, above, n. 15). It would further appear that the inclusion in our chapter of the mishnayot that enumerate “five ‘perutot’” and “five fifths” (mishnayot 7-8) is meant, inter alia, as an allusion to this connection between a regular transaction and one involving hekdesh, and this same connection would appear to underlie the intra-mishnaic parallels between Bava Metzi’a and Me’ila (Bava Metzi’a 3:11 and Me’ila 6:5), and Shevu’ot (Bava Metzi’a 4:9 and Shevu’ot 6:5). See also: H. Lapin, Early Rabbinic Civil Law and the Social History of Roman Galilee, Atlanta 1995, pp. 50-59.
- 26 Among the episodes described there with the word l-k-h we find the punishment of the Flood generation and that of Sedom, which are cited in the Mishna and its parallels in the context of “He Who punished”.
- 27 Yerushalmi 4:2, 65b, according to the accurate version of MS Leiden. MS Escorial (p. 56) reads, ‘דבר <שהוא> יוצא בדיינין’ – see R. Saul Lieberman ad loc., p. 147, line 28. A similar teaching is cited in the name of R. Hanina in Bereishit Rabba 31:5, Theodor-Albek edition, p. 279 (apparently the distinction that R. Hanina draws between “gezel” [theft] and “hamas” [robbery] contradicts what he goes on to say later on; see the corrected version proposed by several commentators, as noted in the editor’s note, ibid., line 7). Bavli Bava Kama 62a draws a similar distinction between “theft” (gezel) and “robbery” (hamas): “‘Hamas’ involves handing over money; ‘gezel’ does not involve handing over money.” The Bavli here conceives of ‘hamas’ as a sort of mirror-image of the case described in our mishna, namely as giving money and taking possession of the purchase against the owner’s will, whereas our mishna describes the seller returning the money against the will of the buyer (the original owner), while leaving the purchased item in his hands.
- 28 Rabbi S.A. Wertheimer, Mishnat Shelomo, Jeruslaem 5752, p. 166, explains: “Even though for each individual it is not regarded as ‘hamas‘, insofar as the item entered his possession in a permissible way, the land as a whole will become filled with ‘hamas‘ because the social order will become corrupted.
- 29 The midrash in Bereishit Rabba (above, n. 27) offers a somewhat different understanding of the “measure for measure” entailed in the punishment of the Flood generation: “The Holy One, blessed be He, said: You have acted not in accordance with the law; I will likewise treat you not in strict accordance [with the law].”
- 30 A similar interpretation is offered by the author of Lehem Shamayim, based on the use of the word “para’” in the simple (active) form (rather than “Mi she-nifra’“, in the passive form, which would conform with the expression “atid le-hipara’” that appears afterwards): “For the Holy One, blessed be He, is the Judge, Who takes from him who is guilty and uses that to repay the debt to the person he owes. Thus, God collects from the guilty and repays (pore’a) to the creditor in that way. This is why it says ‘para‘ – meaning, He ‘repays’ to the creditor of the one who is owing, by collecting from the latter against his will; [the mishna] is simply formulated in abbreviated form.”
- 31 This is as explained in Hiddushei ha-Rashba: “Meaning that he is subject to ‘Him Who punished…’ only when he acquires the item by Torah law. But wherever he has not actually acquired by law, we do not subject him even to [the declaration of] ‘He Who punished…’.” Further on, the Gemara rejects this view and argues that even if money was not handed over, the buyer is subject to ‘He Who punished…’ because of the principle that ‘his words have assumed practical significance’ (as Rashi explained). This suggests that what we have here is a moral statement, as explained above. However, Rashba (ad loc) explains that the Gemara is talking specifically about the teaching of Resh Lakish (that money is not recognized by the Torah as a means of purchase), but according to the opinion of R. Yohanan (money is a recognized means of purchase according to the Torah), the curse of “He Who punished…” applies only because there was a valid transaction according to Torah law, and the Rashba brings proofs for this from the Rif and from the Yerushalmi. It would seem that even according to the Gemara’s explanation of Resh Lakish’s approach, we might still posit – albeit in a somewhat forced way – that the principle of “words that assume practical significance” is considered, on the moral level, as effecting a sort of transaction. However, even if we do not adopt this assumption, the explanation proposed above for “He Who punished…” sits well with the Gemara’s treatment of the difficulty and with the approach of R. Yohanan (according to the Rif and Rashba).
- 32 In this context it is interesting to note that the Tosefta 3:14 (parallel baraita in Bavli 48a and 49a) attributes the curse of “He Who punished…” to R. Shimon (see also Hiddushei ha-Ritzad 48b, p. 166). According to the Bavli 47b, R. Shimon maintains – even according to Resh Lakish’s view – that money is a valid means of purchase by Torah law, inasmuch as he holds (m. 4:2) that following payment, the purchased is committed to the sale and cannot retract (according to David HaLivni, Mekorot u-Mesorot – Bava Metzi’a, Jeruslaem 5763, p. 168, R. Shimon, in Resh Lakish’s view, might regard money as a valid form of purchase only in rabbinic law, binding upon the buyer and not upon the seller). The attribution of “He Who punished…” to R. Shimon thus reinforces the idea that this curse reflects regarding monetary payment as legally effective, at least partially (obviously, on condition that we reject the assumption of Ritzad [above, n. 7] that R. Shimon’s statement was originally uttered only regarding ona’a.)
- 33 From the question raised in the Gemara (see above, n. 31) it would appear, ab initio, that the enactment by the Sages requiring an act of possession to effect a translation does not annul the rule that “money is a legitimate form of purchase”, but merely allows the parties to retract up until the stage where possession is transferred. Alternatively, we might understand that the enactment requiring an act of possession does, halakhically, cancel the legal validity of a monetary transaction, while retaining its validity on the aggadic-moral plane. These two ways of understanding the situation underly various questions discussed by the Aharonim, such as the status of the item prior to the actual pronouncement by the court of the curse “He Who punished…”, or in instances where “He Who punished….” cannot be carried out; see Penei Yehoshua 48a and the sources cited by A. Keshet, Kovetz Yesodot ve-Hakirot ha-Shalem, Netanya 5768, p. 353.
- 34 Y. Frankel, Midrash va-Aggada, Ramat Aviv 5757, p. 695. It should be noted that here – as in many other instances – the aggada demands not only “religious sentiment” but also the actions mandated by such sentiment.
- 35 A corollary conclusion is that the main problem of ona’a, especially in the public sphere, is the defrauding of customers by merchants and salesmen. In instances of transactions between private individuals – not merchants – the opposite situation can also come about, as mishna 4 teaches: “Both the customer and the merchant can be guilty of ona’a.”
- 36 Concerning the role of the municipal administration (“agoranomos”) in setting prices, see Y. Manirev, Perakmatia, Ramat Gan 5769, pp. 137 ff.. As N. Zohar demonstrates in his Be-Sod ha-Yetzira shel Sifrut Hazal, Jerusalem 5767, pp. 49-52, 55, the Tosefta cited here lists price regulation along with other standard municipal regulatory functions.
- 37 Cf. Y. Manirev, Perakmatia (above, n. 36), p. 155, n. 126, disagreeing with the view of B.Z. Rosenfeld, Lod VaHakhameha bi-Yemei ha-Mishna ve-ha-Talmud, Jerusalem 5757, pp. 26-38, who argues that R. Tarfon is functioning here as the agoranomos of the city. It should be noted that elsewhere (M. Keritut 1:7) we find another rabbi employing a halakhic “trick” (recalling that of R. Tarfon – see below) in order to bring down the price of a certain commodity. However, there too it seems that his aim was religious (since the item in question – doves’ nests – was necessary for Temple sacrifices) rather than administrative and economic in nature.
- 38 See: A. Hyman, Toldot Tannaim ve-Amoraim, Jerusalem 5747, p. 526; G. Alon, Toldot ha-Yehudim be-Eretz Yisrael bi-Tekufat ha-Mishna ve-ha-Talmud vol. 2, Israel, 1977, p. 129, n. 267; Rosenfeld, Lod VaHakhameha (above, n. 37), pp. 44-45.
- 39 As E.E. Urbach notes in Ha-Halakha – Mekoroteiha ve-Hitpat’huta, Givatayim 1984, p. 161: “In this matter, the merchants still made their own decision.” Rosenfeld, Lod ve-Hakhameha (above, n. 37), p. 37, concludes from our story that the merchants were organized in a sort of professional guild that regulated prices and profits, and this organization “demonstrated its power in refusing R. Tarfon’s suggestion.” Whatever historical validity the conclusions of these two scholars may possess, it seems that their views of the situation fail to present a full picture of the complex relations prevailing in this story between the representative of halakha and mussar (R. Tarfon) and the representatives of the market forces (the merchants), as we shall see below.
- 40 R. Tarfon’s strategy in this matter resembles the strategy adopted by King Shlomo in his ruling concerning the two harlots and the single surviving baby (Melakhim I 3), and the strategy of Rabban Gamliel in bringing down the prices of doves’ nests in Jerusalem (M. Keritut 1: 7). In each instance we find a “ruling” devoid of halakhic grounding, issued for the sole purpose of eliciting a certain reaction from those to whom the ruling was addressed. As an alternative to the understanding of R. Tarfon’s rulings presented here, we might suggest a halakhic understanding. Perhaps R. Tarfon raises the limit on ona’a to a third not based on an assessment of public opinion, but rather out of a desire to streamline the functioning of the commercial system (see below, n. 48), and that in order to balance this violation of the customers’ rights he extends the time awarded to them to clarify the market price and to cancel the transaction. However, this view is difficult to accept because it assumes that R. Tarfon does not understand that the burden and chaos that will ensue from his second ruling nullify the efficiency produced by the first.
- 41 In the commercial reality the opposite situation – in which it is the seller who is the victim of ona’a – is almost non-existent, since merchants are knowledgeable about prices. It is precisely for this reason that the amount of time allowed for an inquiry about the market price and a possible cancellation of a sale is “until he can show it to a merchant”.
- 42 If this had been the end of the story, we might have interpreted the response of the merchants in a more positive light, proposing that what concerned them was not only the risk of retraction on the part of the customer but also their fear of transgressing the prohibition of ona’a – on the assumption that if the profit fell below the limit of the “sixth” (or “third”, according to R. Tarfon’s ruling), the Sages would not only uphold the translation, but even permit, from the outset, that this price be charged. (This reflects the approach of Sefer ha-Hinukh, end of mitzvah 337, in contrast to the opinion of Ramban on Vayikra 25:14; the Rosh in siman 20 on our chapter debates this question.) However, the continuation of the story shows that the prohibition did not deter them, and it would therefore seem that their only concern was the risk of cancellation of a sale.
- 43 According to the Tosafot (49b), the definition of “until he can show it to a merchant or to his relative” must be a fixed, uniform time-frame; were this not the case, “the law would vary in each instance” and for each individual.
- 44 As the Rosh states at the end of siman 15.
- 45 As Hiddushei ha-Ritzad explains, 50b (p. 170): “For the perpetrators of ona’a know that neither the customer nor the merchant usually runs off, immediately after buying or selling, to consult an expert as to whether he has been defrauded; [more often it happens that] he hears by chance that he was defrauded, or it occurs to him that he was defrauded, and if the timeframe set by the Sages for retraction is short, then he leaves the matter alone, for that timeframe is quickly over, and then the defrauded party has no [right to any] claim.”
- 46 The Bavli 50a-b proposes more complex understandings of the responses of the merchants, rooted in the question whether forgiveness of an overcharge involving a sum less than the limit of ona’a (a sixth or a third) applies immediately upon the sale, or only after “he has time to show it to a merchant”.
- 47 Elsewhere, R. Tarfon is depicted as seeking to apply Torah values to the furthest extent, taking no account of their real-life consequences, even to the point of endangering himself; see M. Berakhot 1:1; Yerushalmi Shevi’it 4:2, 35b; Bavli Nedarim 62a. In our narrative it would seem that R. Tarfon, true to form, adheres to an ethical standard unworkable in the real business world, but – as we shall see – he displays a keen awareness of human nature and its limitations.
- 48 The concern for allowing the normal functioning of the commercial system is the consideration which underlies the ruling of the Sefer ha-Hinukh, end of mitzvah 337, that ona’a up to a level of less than a sixth is permitted: “But where less than a sixth is involved, the Sages of blessed memory permitted the merchant to make a profit for the purposes of proper social functioning, so that people would find the goods they need wherever they go.” The Rosh, in siman 20 of our chapter, presents the needs of the system somewhat differently. My proposal here extrapolates the consideration applied by these Rishonim to the allowed amount of divergence to the amount of time allotted by the Sages for the purchaser to check the price..
- 49 This idea may explain the juxtaposition of our chapter to the chapter on “What is [considered] usury?” (Bava Metzi’a chapter 5), where a different sort of defective attitude towards money is discussed.
ד,א הזהב קונה את הכסף, והכסף אינו קונה את הזהב; הנחושת קונה את הכסף, והכסף אינו קונה את הנחושת. מעות הרעות קונות את היפות, והיפות אינן קונות את הרעות; אסימון קונה את המטבע, והמטבע אינו קונה את אסימון. המיטלטלין קונין את המטבע, והמטבע אינו קונה את המיטלטלין. זה הכלל, כל המיטלטלין קונין זה את זה.
ד,ב כיצד: משך ממנו פירות, ולא נתן לו מעות–אינו יכול לחזור בו. נתן לו מעות, ולא משך ממנו פירות–יכול לחזור בו; אבל אמרו, מי שפרע מאנשי דור המבול, עתיד להיפרע ממי שאינו עומד בדבורו. רבי שמעון אומר, כל שהכסף בידו, ידו על העליונה.
ד,ג ההונאה–ארבעה כסף מעשרים וארבעה כסף לסלע, שתות למקח. עד מתיי מותר להחזיר, עד כדי שיראה לתגר או לקרובו. הורה רבי טרפון בלוד, ההונאה שמונת כסף לסלע, שליש למקח; ושמחו תגרי לוד. אמר להם, מותר להחזיר כל היום כולו; ואמרו לו, יניח לנו רבי טרפון מקומנו, וחזרו לדברי חכמים.
ד,ד אחד הלוקח ואחד המוכר, יש להם הוניה. כשם שהוניה להדיוט, כך הוניה לתגר; רבי יהודה אומר, אין לתגר הוניה. מי שהוטל עליו, ידו על העליונה–שהוא אומר לו תן לי את מעותיי, או תן לי מה שהוניתני.
ד,ה כמה תהא סלע חסרה, ולא יהא בה אוניה: רבי מאיר אומר, ארבעה איסרות מאיסר לדינר. רבי יהודה אומר, ארבע פונדיונות, מפונדיון לדינר. רבי שמעון אומר, שמונה פונדיונות, משני פונדיונין לדינר.
ד,ו עד מתיי מותר להחזיר: בכרכים, עד כדי שיראה לשולחני. ובכפרים, עד ערבי שבתות. אם היה מכירה, אפילו לאחר שנים עשר חודש מקבלה הימנו; אין לו עליו אלא תרעומת. ונותנה למעשר שני, ואינו חושש–שאינה אלא נפש רעה.
ד,ז האונאה ארבעה כסף, והטענה שתי כסף, וההודיה שווה פרוטה. חמש פרוטות הן: ההודיה בשווה פרוטה. והאישה מתקדשת בשווה פרוטה. והנהנה בשווה פרוטה מן ההקדש, מעל. והמוצא שווה פרוטה, חייב להכריז. והגוזל את חברו שווה פרוטה, ונשבע לו–יוליכנו אחריו, אפילו למדיי.
ד,ח חמישה חומשין הן: האוכל תרומה, ותרומת מעשר, ותרומת מעשר של דמאי, והחלה, והביכורים–מוסיף חומש. הפודה נטע רבעי, ומעשר שני שלו–מוסיף חומש. הפודה את הקדשו, מוסיף חומש. והנהנה בשווה פרוטה מן ההקדש, מוסיף חומש. והגוזל את חברו שווה פרוטה, ונשבע לו–מוסיף חומש.
ד,ט אלו דברים שאין להם אונאה–העבדים, והשטרות, והקרקעות, וההקדשות: אין בהן לא תשלומי כפל, ולא תשלומי ארבעה וחמישה; שומר חינם אינו נשבע, ונושא שכר אינו משלם. רבי שמעון אומר, קודשים שהוא חייב באחריותן, יש להם הוניה; ושאינו חייב באחריותן, אין להם הוניה. רבי יהודה אומר, אף המוכר ספר תורה, ובהמה, ומרגלית–אין להם אונאה. אמרו לו, לא אמרו אלא את אלו.
ד,י כשם שהונאה במקח וממכר, כך הונאה בדברים: לא יאמר לו בכמה חפץ זה, והוא אינו רוצה ליקח. ואם היה בעל תשובה, לא יאמר לו זכור מעשיך הראשונים. ואם היה בן גרים–לא יאמר לו זכור מעשה אבותיך, שנאמר “וגר לא תונה, ולא תלחצנו: כי גרים הייתם, בארץ מצריים” (שמות כב,כ).
ד,יא אין מערבין פירות בפירות, אפילו חדשים בחדשים, ואין צריך לומר חדשים בישנים; באמת, ביין התירו לערב קשה ברך, מפני שהוא משביחו. אין מערבין שמרי יין ביין, אבל נותן לו את שמריו. מי שנתערב מים ביינו–לא ימכרנו בחנות, אלא אם כן הודיע; ולא לתגר, אף על פי שהוא מודיעו, שאינו אלא לרמות בו את אחרים. מקום שנהגו להטיל מים ביין, יטילו.
ד,יב התגר נוטל מחמישה גרנות, ונותן לתוך מגורה אחת; מחמש גיתות, ונותן לתוך פיטס אחד, ובלבד שלא יתכוון לערב. רבי יהודה אומר, לא יחלק החנווני קליות ואגוזים לתינוקות, מפני שהוא מרגילן לבוא אצלו; וחכמים מתירין. לא יפחות את השער; וחכמים אומרין, זכור לטוב. ולא יבור את הגריסין, כדברי אבא שאול; וחכמים מתירין. ומודים שלא יבור על פי המגורה, שאינו אלא כגונב את העין. אין מפרכסין לא את האדם, ולא את הבהמה, ולא את הכלים.