Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 62a

[Take thou no usury of him, or increase: but fear thy God;] that thy brother may live with thee; [implying] return it to him, that he may be able to live with thee.

Now how does R. Johanan interpret, 'that thy brother may live with thee?' — He utilises it for that which was taught: If two are travelling on a journey [far from civilisation], and one has a pitcher of water, if both drink, they will [both] die, but if one only drinks, he can reach civilisation, — The Son of Patura taught: It is better that both should drink and die, rather than that one should behold his companion's death. Until R. Akiba came and taught: 'that thy brother may live with thee:' thy life takes precedence over his life.¹

An objection was raised: If their father left them usury money, though they know it to be usury, they are not bound to return it. [This implies,] But their father is bound to return it!²  — In truth, their father too is not bound to return it: but because the second clause desires to state, 'If their father left them a cow, or a garment, or any distinguishable object [received as interest], they must return it for the sake of their father's honour,' the first clause too is taught with reference to them.³  But are they then bound to make restitution for the sake of their father's honour? [Why not] apply here, Thou shalt not curse a ruler of thy people,⁴  [which means], only if he acts as is fitting for 'thy people'?⁵  — It is as R. Phinehas [in another connection] said in Raba's name: If he repented; so here too, [we deal with a case] where he repented. But if he repented, how came it [the money] to be still in his possession?⁶  — He died before he had time to return it.

An objection was raised: Robbers, and those who lend on usury, even when they have exacted it, must make restitution. Now, how can 'even when they have exacted it' apply to robbers? If it is robbed, it is robbed; and if not, can you call them robbers? But say thus: Robbers; and those meant thereby are those who lend upon usury, even when they have exacted it, must make restitution! — It is a dispute of Tannaim. For it was taught: R. Nehemiah and R. Eliezer b. Jacob exempt the lender and the surety [from punishment],⁷  because they have a positive duty.⁸  Now, what is meant by a 'positive duty'? Surely that we bid them, 'Arise and return [the usury];' from which it follows that the first Tanna⁹  maintains that they are not bound to make a return.¹⁰  No! By 'positive duty' is meant [that they are bid] to tear up the bond [of indebtedness].¹¹  But what is his¹²  opinion? If he maintains: A bond, which is destined to be exacted, is as though it were already exacted,¹³  they have [already] committed their transgression!¹⁴  Whilst if it is not as already collected, they have committed no wrong!¹⁵  — In truth, in his view a bond, destined to be exacted, is not as though already exacted, and what he teaches us is that the [mere] 'putting on' [of usury] is a transgression.¹⁶  This also stands to reason. For we learnt: The following transgress the negative injunction: the lender, the borrower, the surety and the witnesses.¹⁷  Now, with respect to all, it is well, [since] they commit an action. But what have the witnesses done? Hence it surely must be that the [mere] 'putting on' [of usury] is a substantial act [and in this case, a transgression]. This proves it.

R. Safra said: Wherever by their law [i.e., non-Jewish law] exaction is made from the debtor for the creditor, restoration is made by our law from the creditor to the debtor; wherever by their law there is no exaction from the debtor to the creditor, there is no restoration by our law from the creditor to the debtor. Said Abaye to R. Joseph: Now, is this a general rule? Behold, there is the case of a se'ah [lent] for a se'ah which, by their law, the debtor is forced to repay the creditor, yet by ours it is not returnable from the creditor to the debtor!¹⁸  He replied, They [regard it] as having come into his possession merely as a trust.¹⁹  Rabina said to R. Ashi: But mortgages without deduction,²⁰  which by their law is exacted from the debtor for the creditor,²¹

1. With thee implies that thy life takes first place, but that he too has a right to life after thine is assured. [For an excellent exposition of R. Akiba's dictum, v. Simon, Leon, Essays on Zionism and Judaism by Achad Ha-am (1922}, pp. 236ff.]
2. Thus contradicting R. Johanan's ruling.
3. But the father himself cannot be compelled to make restitution.
4. Ex. XXII, 27: this is interpreted as a general injunction to safeguard another Jew's honour.
5. I.e., righteously. But if a man took usury, his children are under no obligation to safeguard his honour.
6. For true repentance necessitates the restoration of that which was wrongfully taken.
7. The penalty of lashes attached to the injunction against interest.
8. Lit., 'because there is "arise and do" in their case.' The transgression of a negative command is punished by flagellation, but not if it can be remedied by a subsequent positive action.
9. The existence of another Tanna who disputes this is assumed, since this is stated in the name of particular teachers, instead of anonymously.
10. [And consequently the wrong they had committed cannot be remedied.]
11. I.e., having lent money upon interest, and drawn up a bond, it is the lender's duty to tear it up, thus rendering it invalid. [Where, however, payment was exacted, restitution effects no remedy of the offence.]
12. I.e., R. Nehemiah's and R. Eliezer b. Jacob's.
13. So that tearing up the bond is the equivalent of returning the interest.
14. [And if the tearing up of the bond is considered a remedial action, why should the return of the interest, where actually exacted, not be considered so?]
15. Who then can dispute that they are exempt from punishment?
16. Cf. Ex. XXII, 24. For which, in the view of the first Tanna, punishment is incurred, whilst R. Eliezer b. Jacob and R. Nehemiah exempt them therefrom, because it may be followed by a positive action remedying it.
17. Infra 75b.
18. Jewish law prohibits the lending of a measure of wheat for the return of a similar measure, as the wheat may at the time of repayment stand at a higher price (v. infra 75a); by Gentile law, this transaction is permissible, and the debtor must repay it to the creditor. Yet though Jewish law forbids it, the debtor cannot demand its return after repayment, since it is only indirect interest.
19. I.e., in their view, it is not interest at all. A entrusts a se'ah to B, and then B returns it. But R. Safra referred to what the Gentiles recognised as interest, which by their code is permissible.
20. I.e., the debtor mortgages a field of which the creditor takes possession and enjoys the usufruct without deducting its value from the principal. This is prohibited; v. 67b.
21. I.e., if the debtor retained the produce for himself the creditor can claim it from him at law.

yet by our law is not restored from the creditor to the debtor?¹  — He replied: They [regard it] as having come into his hand by the law of purchase.²  Then, when R. Safra said, 'Wherever by their law, etc.', what did he mean to tell us?³  — [This]: 'Wherever by their law exaction is made from the debtor for the creditor, restoration is made by our law from the creditor to the debtor;' this refers to⁴  direct interest, and in accordance with R. Eleazar.⁵  'Wherever by their law there is no exaction from the debtor to the creditor, there is by our law no restoration from the creditor to the debtor;' this refers to prepaid and postpaid interest.⁶

E. G., IF ONE PURCHASED WHEAT AT A GOLD DENAR PER KOR, WHICH WAS THE CURRENT PRICE etc. But what does it matter if he has no wine? Did we not learn:⁷  One must not fix a price [for produce] until the market price is known;⁸  once the market price is established, a fixed price may be agreed upon, for even if this [vendor] has no stock, another has?⁹  — Rabbah replied: Our Mishnah refers to the creating of a debt for the value thereof.¹⁰  And as it has been taught: If one was his neighbour's creditor for a maneh, and he went and stood at his [the debtor's] granary and demanded, 'Give me my money, as I wish to purchase wheat therewith;' to which he answered, 'I have wheat with which to supply you; go and calculate [the amount] at the current price, and I will furnish you with it, [spreading it over] the whole year,' — that is forbidden, because it is not as though the issar¹¹  had come to his hand.¹²  Abaye said to him: If the reason [in the Mishnah is that] it is not 'as though the issar had come to his hand,' why particularly [state the case] where he has no wine? Even if he has, it is also [forbidden]!¹³  But, said Abaye, our Mishnah is as R. Safra learnt in the collection of Baraithas on interest of the college of R. Hiyya. For R. Safra learnt in the collection of Baraithas on interest of the college of R. Hiyya: Some things are [essentially] permitted, yet forbidden as [constituting] an evasion of usury. How so? If A requested B, 'Lend me a maneh;' to which he replied, 'I have no maneh, but wheat to the value thereof, which I will give you;' and thereupon he gave him a maneh's worth of wheat, [calculated on the current price] and repurchased it for twenty-four sela's;¹⁴  now, this is [essentially] permitted, yet may not be done on account of evasion of usury. So here [in the Mishnah] too: e.g., A said to B, 'Lend me thirty denarii,' to which he replied, 'I have not thirty denarii, but wheat for the same, which I can give you.' He then gave him thirty denarii's worth of wheat [calculated at the current price] and repurchased it for a gold denar.¹⁵  Now,¹⁶  if the debtor has wine, which he gives him against the thirty denarii, he [the creditor] merely receives provisions from him, and there is no objection; but, if not, since he has no wine, to receive money certainly smacks of usury.¹⁷  Raba said to him: If so [instead of], GIVE ME MY WHEAT, the Tanna should state, 'Give me the money for my wheat'!¹⁸  — Read: 'the money for my wheat.' [Instead of,] AS I WISH TO SELL IT, he should state, 'Which I sold you.' Read: 'which I sold you.' THE WHEAT SHALL BE ACCOUNTED AS A DEBT TO ME OF THIRTY DENARII — but from the very beginning, had it not been fixed thus against him?¹⁹  — He said thus to him, 'For the value of your wheat which you have accounted against me at thirty denarii, you have a claim of wine upon me', whereas he [the debtor] has no wine. But it is stated, [IF A MAN PURCHASED WHEAT] AT A GOLD DENAR PER KOR, WHICH WAS THE MARKET PRICE!²⁰  But, said Raba,²¹  when I die, R. Oshaia will come to meet me,²²

1. Because it is not accounted as direct interest, since the crop may fail.
2. I.e., theoretically a mortgaged field is sold to the creditor, which the debtor redeems by repaying the loan. Hence, if the debtor seizes its produce, he seizes something that belongs to the creditor by right of purchase, not as interest.
3. To what case does this actually apply?
4. Lit., 'and what is it?'
5. Supra 61b.
6. V. infra 75b. Such interest is not actionable in Gentile law, and therefore, if paid, is not returnable by Jewish law.
7. Infra 72a.
8. I.e., A must not buy ahead from B at a fixed price, paying him now.
9. I.e., B may undertake to supply A at the current price, even if he has no produce and may have to buy it himself later for delivery at a higher price; yet since B could immediately purchase it from some other merchant, it is not interest. Why then is this forbidden in the Mishnah?
10. The vendor did not return to the purchaser the money he had received from him for the wheat, but indebted himself for it on the basis of the present advanced price, and undertook to supply him with wine to its value.
11. I.e., the payment for the wheat.
12. Now, had he actually received money, it would not be forbidden as interest despite the possible rise in the price, as on p. 372, n. 8, but as he receives no money, should he have to pay more later, the excess is usury; and it is likewise so in the Mishnah.
13. For in the Baraitha quoted, he actually has wheat, yet it is forbidden.
14. A maneh contains 100 zuz, and a sela' = 4 zuz; hence 24 sela' = 96 zuz. The debtor, being in urgent need of the money, had to sell it for less than its real worth.
15. I.e., 25 denarii, so that the debtor has to make, in addition to the gold denar which he received in cash, a return for their remaining five denarii, — a total of 30 denarii.
16. [When the creditor asks for the thirty denarii for the purpose of buying wine and the debtor offers to supply it.]
17. For the debtor actually received only 25 denarii, which the creditor paid him in cash for the wheat, whilst he repaid him 30 denarii. On this explanation, IF A MAN PURCHASED WHEAT AT A GOLD DENAR PER KOR, refers to the creditor as purchaser and the debtor as vendor. The rest of the Mishnah does not agree with this interpretation, and Raba proceeds to raise this objection.
18. Since the creditor had previously given the wheat to the debtor, and was now demanding payment.
19. I.e., this involves no new arrangement, as is implied in the Mishnah.
20. Whereas on this interpretation it is obvious that the creditor repurchased it at 25 when the current price was 30.
21. The reading of R. Han. and Alfasi is: This refers to a case where he wishes to create a debt for its value, and as R. Oshaia taught; v. p. 372, n. 9.
22. I.e., pay honour to me in the Great Beyond.