Babylonian Talmud

Rodkinson 1918 — source 12, scan section 10

not in accordance with R. Jehuda, who said : If there is only one side of usury {i.e., if, for instance, the buyer should not keep his promise, there would be no usury if the seller used the fruit) it does not matter. (The other parts of the above Boraitha, how- ever, are in accordance with R. Jehuda also, as there is a certain usury without any doubt). If one has pledged his house or field, and the lender said to him : " You may sell it to me for such and such amount, but if you sell it to another, you will have to add such and such an amount to my loan," this is usury. But if he says: "Should you wish to sell for its value, I shall have the preference," it is allowed. The same is the case if one has sold a house or a field with the condition that if he should have money thereafter, the estate should be returned to him ; it is considered usury (as the money is considered a loan for which the lender uses the estate until the money is returned). If, however, the buyer says : " I will return it to you when you will have money," such an agree- ment is allowed. [And the above-mentioned R. Huna said that these two Boraithas also are not in accordance with R. Jehuda, as there is only one side of usury {i.e., that should the seller or bor- rower not have the money necessary, there would be no usury) which is allowed according to his theory,] But what difference is there if the seller made the condition of returning when he will have the money, or the buyer made it ? Said Rabha : That is, if the buyer said, " I will do so not as a condition but by my good will." TRACT BABA METZIA (MIDDLE GATE). 159 There was a man who bought an estate without any security — i.e., that the seller did not take the responsibility to return him the money should the estate be taken away from him by the seller's creditors. Seeing, however, that the man looked down- hearted, the seller said to him : " Why art thou grieved ? Should it be taken away from you I will collect for you the fruit and the improvement." SaidAmimar: This is only a gossip. Said R. Ashi to him : Your reason is, because this condition should be made by the buyer and not by the seller ; does not the above Boraitha state that if the seller said, '' I will return it to you, etc.," it is allowed, because such a condition ought to be made by the seller and not by the buyer? And Rabha explained this that only when the buyer says: *' It is not a condition, etc.," from which it is to be inferred that if he did not add this it would not be con- sidered as a gossip ? And Amimar rejoined : Rabha means to say thus : As this condition should have been made by the seller, and it was not, then when the buyer says, " I will do it," it is to be considered as though he would add : " from my good will." It was taught : It happened that a sick man wrote a divorce to his wife and she heard him sigh. Then she said to him : " Why do you sigh ? If you will live I am yours." Said R. Zebid : It is to be considered a gossip only. Said R, A'ha of Difti to Rabina : And should it not be considered so, what harm could there be ? Does it then depend upon her to make a condition in the divorce ? That depends on the husband only. (And he rejoined 🙂 Lest one say that, hearing her statement, the husband resolved to give the divorce upon this condition, he comes to teach us that it is not so. If one has borrowed money on his estate, etc. Said R. Huna: The case is if the condition was made at the time the money was paid. If, however, it was made thereafter, title is acquired according to the amount paid only. R. Nahaman, however, main- tains that even then title is acquired on the whole estate ; and R. Nahaman acted accordingly in a case of the Exilarch. R. Jehuda, however, tore the document, and the Exilarch told this to R. Nahaman, and he said : (It does not matter 😉 a boy tore it as, concerning jurisprudence, all are considered boys in comparison with me. Afterwards, R. Nahaman retracted from this state- ment, and said that even when the condition was made at the time the money was given, it is of no avail. And Rabha objected to him from our Mishna : " If he will not repay within three years ... it is his." And R. Nahaman answered : I say that an i6o THE BABYLONIAN TALMUD. asmakhta'*' gives title. Minjumi, however, maintained that it does not. But then our Mishna contradicts Minjumi? He interprets our Mishna as treating of when the seller said : Title should be acquired by you from now. Said Mar the Senior and the Junior, sons of R. Hisda, to R. Ashi : So said the sages of Nahardai in the name of R. Nahaman : An asmakhta gives title only in time but not thereafter. And R. Ashi rejoined : This would not be correct, as there is a rule that a thing which gives title in time gives also thereafter. Perhaps you mean to say thus : If the borrower sought him within the time of the loan and told him : Acquire title on it, as I will not redeem it any more, then title is acquired ; but if he said the same to him after the time has elapsed, it counts nothing, as it is to be considered that he said so only because he was ashamed for the delay of the pay- ment. (Says the Gemara 🙂 In reality, title is not acquired even within the time, as the saying of the borrower is to be considered as a postponement of time only, as he would not Hke to be troubled when the time of payment arrived. R. Papa said : The asmakhta sometimes gives title and some- times does not. If, e.g., he finds his debtor on the day of pay- ment drinking beer, and not caring about the payment of his debt, it is to be considered that the debtor does not intend any more to redeem his pledge, and then title is acquired by the lender ; but if he found him on that day searching for money, title is not acquired. Said R. A'ha of Difti to Rabina : Even in the first case title should not be acquired, as it may be the debtor drinks only to drown his grief, or he relies upon some one who assured him that he would furnish him money. Therefore said Rabina : If we see that the debtor does not care to lower the price of his goods for the purpose of collecting the money due, it must be considered that he does not care any more for the pledged estate, and title is acquired. And the above R. A'ha rejoined : Even this proves nothing, as it may be he does not want people to know his circumstances, which would cause a reduction in value of his estate. Therefore it may be assumed that R. Papa's statement was thus : If the debtor was particular on that day with his estate not to have it sold, even for its value, it is certain that he does not care * The term asmakhta is very difficult to translate into English with a term of the