Tractate Bava Metzia has dealt so far with property disputes, chiefly involving lost and found items and the rules of deposits and trusteeship. But you could live your whole life and never become party to such a controversy. The same is not true of ordinary transactions: the purchase or sale of land, livestock, or what the Talmud calls “vessels,” meaning any small manufactured item. This is the daily business of any mercantile society, such as the Jewish society of the Near East in the first centuries CE. It is a little surprising, then, that only in chapter four of Bava Metzia do the rabbis get around to setting out the basic rules of such transactions. Still, after reading Daf Yomi for several years, I have learned not to expect the Talmud to address its topics in what might seem like the logical order. The method of the Talmud is not to set down broad legal principles, as in a law code; rather, it focuses on disputes and controversies and uses these to explain, often by implication, the laws and ideas at stake.
Today, we are used to thinking of buying and selling as an activity exclusively connected with money: you buy things by paying money and sell them in exchange for money. For the Talmud, however, money is considered only a special case of purchase and sale; the standard transaction is imagined as a barter, a direct exchange of goods. In a barter transaction, Jewish law says that the sale is completed when the buyer “pulls” the item he is buying: that is, he literally puts his hands on it and takes it into his possession. This makes sense when you are talking about, say, an ox or a cow.
But it raises a question about monetary transactions. When, exactly, is a money transaction completed? Is it when the buyer pays money to the seller, or when the buyer actually takes possession of the goods? The rabbis rule that it is the latter: Until the buyer “pulls” what he is buying, he does not own it. This means that payment of money does not actually confer ownership of the item paid for; it only imposes a legal obligation on the seller to deliver the item.
Typically, however, the Talmud does not begin by laying out these laws explicitly. Rather, Chapter Four starts by raising a complicated theoretical question which takes knowledge of the laws more or less for granted. And in the Mishna’s terse language, the question is even harder to understand: “The gold acquires the silver, but the silver does not acquire the gold,” the Mishna says in Bava Metzia 44a. What this means becomes clear only thanks to the Koren Talmud’s extensive English paraphrase and expansion. The rabbis are envisioning a transaction in which gold coins are being exchanged for silver coins. Jewish law distinguishes between an “exchange”—a barter transaction in which one item is given for another—and a “sale”—a monetary transaction in which an item is given in return for coins. But how do we classify a transaction in which one kind of money is given for another kind, gold coins for silver coins?
The answer is implied in the formula “the gold acquires the silver, but the silver does not acquire the gold.” In other words, the Talmud regards an exchange of currency as if it were the purchase of a commodity. It designates the gold as the item being purchased and the silver as the money used to purchase it. This means that “the silver does not acquire the gold”: When the buyer gives his silver coins to the seller, he has not yet legally acquired the gold he is buying, on the principle we saw earlier, that payment of money does not effect acquisition. Rather, “the gold acquires the silver”: That is, when the buyer actually receives or “pulls” the gold coins, then the silver coins become the legal property of the seller.
Why is gold designated the commodity and silver the currency in this situation, rather than vice versa? One might think that it is because gold is more valuable than silver. But then, why does the Mishna go on to say that the same principle holds for copper coins, which are less valuable than silver? Why should “the copper acquire the silver”? The reason is that, in the economy familiar to the rabbis, silver coins were the most common and widely circulating currency: anywhere you went, you could use silver to buy things. This suggests that in a different economy, the standard might change: in America today, one might say that “silver acquires paper money,” because dollar bills circulate much more widely than silver dollars.
Initially, all this might appear purely abstract: if one person has a cow and the other has a bag of coins, and they hand the items over to one another, it hardly matters exactly when the transaction is effected, since it all takes place in the same moment. Why, then, do the rabbis insist on the distinction between “exchange” and “sale”? The reason emerges in the Gemara on Bava Metzia 46b: “And for what reason did the Sages say that pulling acquires an item and money does not? This is a rabbinic decree lest the seller say to the buyer after receiving the money: Your wheat was burned in the upper story.” That is, if money acquired an item, then the wheat would become the buyer’s property as soon as he paid for it, while it was still physically in the custody of the seller. If a fire broke out in the warehouse, the seller would have no reason to rescue the wheat, since he had already been paid for it and it no longer belonged to him. By shifting the moment of acquisition to the moment of delivery, the law creates an incentive for the seller to safeguard the property he is selling.
This asymmetry means the buyer also has a greater opportunity to renege on a deal. “If the buyer gave the seller money but did not yet pull produce from him, he can renege on the transaction,” the Mishna says. The buyer could cancel a deal up to the last moment, where the seller is obligated as soon as he accepts money. Recognizing that this creates the possibility of dishonesty and confusion, however, the rabbis severely discourage buyers from wriggling out of the deal: “He who exacted payment from the people of the generation of the flood, and from the generation of the dispersion [after the Tower of Babel], will exact payment from whomever does not stand by his statement.” In other words, while an earthly court can’t prevent a buyer from reneging, God will punish him for it. In the Gemara, the rabbis wonder about the extreme harshness of this statement. Isn’t it equivalent to calling down God’s curse, which is something the Bible forbids: “Nor curse a ruler among your people” (Exodus 22:27)? But Rava defends the curse, reasoning that one who reneges on a transaction cannot be counted “among your people,” because he is so dishonest. It is an interesting example of how, in Talmudic law, earthly and spiritual punishments work hand in hand.
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Adam Kirsch is a poet and literary critic, whose books include The People and the Books: 18 Classics of Jewish Literature.