This level takes the nineteen seifim by their practical end. It begins by naming who carries the siman — it is the Shakh, save in one place —, gives the five-question protocol by which a transaction may be examined, then the ruling seif by seif, then the contemporary figures. It ends with what it does not decide, for a level of ruling that did not state its limits would not be one.
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A second thing to settle before beginning: in almost the whole of this siman the prohibition is rabbinic — אבק רבית, because it comes by way of sale and not of loan. The Shakh writes so in the Beit Yosef’s name, and the Rambam qualified it thus in his very first halakhah. This lightens nothing: it governs only the civil consequences, and the Pit’hei Teshuva draws from them one that surprises.
« וכ׳ ב״י דכיון שאינו אלא דרך מכר אינו אלא מדרבנן » (ש״ך יו״ד קע״ג ס״ק ד)
« הֲרֵי זֶה אֲבַק רִבִּית שֶׁזֶּה דּוֹמֶה כְּמִי שֶׁנּוֹטֵל עֶשְׂרִים בִּשְׁבִיל שֶׁנָּתַן לוֹ מֵאָה לְהִשְׁתַּמֵּשׁ בָּהּ עַד זְמַן פְּלוֹנִי » (רמב״ם הלכות מלווה ולווה פרק ח׳ הלכה א׳)
« כיון שנעשה המקח באיסור בטל לגמרי ולא מקבל עליו מי שפרע » (פת״ש יו״ד קע״ג ס״ק ח)
« וחייב להחזיר לו מעותיו מיד ואינו יכול לומר אתן לך הסחורה כשער של היתר לזמן שקבעתי » (פת״ש יו״ד קע״ג ס״ק ח)
Over the eight points where the apparatus divides, a regularity emerges, and it is worth naming before entering the detail. It is the Shakh who carries this siman. The Nekudot HaKesef — which are his own reply to the Taz — intervene five times, and five times against the Taz. The Ba’er Hetev, who writes for practice and not for discussion, follows him at almost every note.
« והעלה כדעת הט״ז שאין שום היתר להלוות על זקוקים היכא דאין לו » (פת״ש יו״ד קע״ג ס״ק ז)
| The point | What is kept in practice | On whom one relies |
|---|---|---|
| Seif 6 — the full value of the dinar | Require it. The reverse reading of the Tur does not suffice to dispense with it. | Taz, Levush, Bah, Maharshal, Ba’er Hetev, Yeriot HaOhel |
| Seif 7 — the object of unknown valuation, the seller having nothing | Do not rely on it while the rate is not established; and where a rise is feared, abstain. | Shakh 17, Taz 12, Ba’er Hetev 13 |
| Seif 13 — the liability the seller may take | Souring yes; rise and fall no. The Derishah is set aside. | Shakh 24, Taz, Ba’er Hetev 17 |
| Seif 13 — the term of Nissan | It follows the place and season at which the wine clears; and there is room to be strict. | Shakh 25 |
| Seif 14 — the place of the clause of return | It belongs to the second arrangement: the right of return goes with the bearing of risk. | Shakh 29, Nekudot HaKesef 4 |
| Seif 15 — the amount of the wage of trouble | Give it in earnest. The Shakh reads the Beit Yosef as requiring labour and maintenance; do not be content with a gesture. | Shakh 30; the Taz is lenient, the Ba’er Hetev did not decide |
| Seifim 16 and 18 — “ויש מתירין” | It is not a competing permission: it presupposes the wage paid, and without it it is not invoked. | Shakh 33, Nekudot HaKesef 5, Ba’er Hetev 25 and 27 |
| Seif 18 — the gravity | Forbidden in every case. On the qualification the Radbaz is stricter than the Rivash — one more reason not to come near. | Taz 30; Pit’hei Teshuva 10 |
Here is how to examine a concrete transaction. The questions come in order: the first that answers “yes” suffices to forbid, and there is no need to continue. The fifth, conversely, may rescue what the fourth had condemned.
| # | The question | If the answer is this | Then |
|---|---|---|---|
| 1 | Were two prices stated as alternatives — “so much cash, so much on credit”? | Yes | Forbidden. None of the following criteria redeems the speech. |
| 2 | Does the asset have a market rate or a commonly accepted valuation? | Yes, and the credit price exceeds it | Forbidden. If the gap is moderate and nothing was said, see question 5. |
| 3 | If this is an advance payment: does the seller already possess the thing? | No | Forbidden — and a claim with a third party does not count. A deposit does. |
| 4 | Who bears the loss of the thing, and who bears the fall in price? | The one awaiting a counterpart also bears the loss | Forbidden — a disguised loan, or the shape “near to gain, far from loss”. |
| 5 | Does the surplus pay for work actually done, and is it genuinely paid? | Yes | Permitted. But a token wage does not suffice per the Shakh reading the Beit Yosef. |
« אלא א״ל סתם באייר תתן לי כשער של אייר בין שיהיה אותו זמן יוקר או זול מותר אע״פ שדרכן להתייקר באייר » (ש״ך יו״ד קע״ג ס״ק ג)
« אבל אם מוכר לו בלא קצבה כגון שמכר לו שבע חביות ואמר לו תשלם לי כל החבית כמו שיהיה השער בעת שתקח כל חבית שרי » (רמ״א יו״ד קע״ג:י״ד)
The middle column carries the verdict as the Shulhan Arukh gives it; the last carries what the apparatus adds to it for practice. Where the apparatus divides, the name of the posek followed is given.
| Seif | The verdict of the Shulhan Arukh | What the apparatus adds for practice |
|---|---|---|
| 1 | Forbidden if the object has a rate; permitted otherwise, without speech and at a moderate rise | Do not exceed a fifth (PT 4); a buyer who has a third party buy so as to take on credit is as one who states terms (PT 1) |
| 2 | Permitted — the dumped price is not the reference price | Beware the neighbouring arrangement: a loan coupled with an obligation to buy above the price (Shakh 6) |
| 3 | Permitted after conclusion; forbidden before | Even if it was worth twelve, once he consented to ten, taking twelve is the price of the delay (PT 5) |
| 4 | Permitted if the liability passes to the buyer | The Shakh’s stringency: even the liability for the sums received forbids, and there is no difference between assigning part or all (Shakh 9) |
| 5 | Permitted — two successive sales | A bond must establish the obligation before the assignment; the assignment is made before three, and the bond handed over (Shakh 8) |
| 6 | Permitted to the changer, if he has the dinar’s value | Require the full value (BH 9); the permission is the professional changer’s (Shakh 12); coins for coins remains forbidden |
| 7 | Permitted if he has it; forbidden if not | Do not rely on the end of the gloss while the rate is not established (Shakh 17, Taz 12, BH 13) |
| 8 | Permitted — the gourds grow of themselves | He must deliver those; to give others is forbidden (Shakh 20, Taz 13, BH 14) |
| 9 | Forbidden “by the measure”; permitted “much or little” | The reason is that milk taken is replaced, not that it does not yet exist (Shakh 21, Taz 14) |
| 10 | Forbidden for the orchard; permitted for the calf | The difference lies in market custom, not in the nature of the growth (Taz 15, BH 16) |
| 11 | Forbidden, unless an act is performed on what is attached | An act of possession on the land also suffices, per the Beit Yosef; what matters is the acquisition, not the gesture |
| 12 | Forbidden, unless they help thresh | No note of its own in the five collections; the Taz gives the reason at note 16 |
| 13 | Permitted if the buyer takes the fall; forbidden otherwise | The seller may take only the souring (Shakh 24); and the term follows the place, strictly (Shakh 25) |
| 14 | Permitted in both of the Rambam’s arrangements | The right of return goes with the bearing of risk (Shakh 29, NK 4); without a fixed price, permitted in any case |
| 15 | Permitted if the risk stays with the seller and the trouble is paid | The wage must be full (Shakh 30); the Taz is lenient, but the Ba’er Hetev did not decide |
| 16 | Permitted in produce, at the buyer’s risk; forbidden in merchandise and to the man of standing | The Rama’s variant presupposes the wage paid (Shakh 33); the man of standing may, if he takes the liability and pays for the trouble (Shakh 32) |
| 17 | Permitted if he has produce there; forbidden otherwise | It is a se’ah for a se’ah: possession is judged at the place of repayment (Taz 29) |
| 18 | Forbidden; the gloss permits another structure | The Rama’s variant requires the lender to receive the goods and bear the road; without that it is not invoked (Shakh 33, Taz 31) |
| 19 | Permitted — it is a manner of sale | Even paid in advance, the premium stays lawful (Taz 32, Shakh 34) |
The siman speaks of gourds, barrels and donkey caravans. Its five mechanisms, however, decide the transactions that make up a business’s daily life. Each line below indicates the applicable mechanism and the point of vigilance — and nothing more: these are not rulings.
| The transaction | The deciding mechanism | The point of vigilance |
|---|---|---|
| A “cash” tariff and a “thirty days” tariff, posted side by side | Speech — seif 1 | This is קציצה itself. Set a single price indexed to the day of payment rather than a pair of prices. |
| An early-settlement discount granted on an invoice | Speech, and the instant of conclusion — seif 3 | The invoice must have been issued at the full amount before the reduction. Announced in the offer, it is the forbidden alternative. |
| Factoring: assigning receivables at a discount | The bearing of risk — seif 4 | Without recourse against the assignor it is a sale. With recourse it is a loan — and the Shakh forbids even the liability for the sums received alone. |
| A public body monetising future revenues | The structure — seif 5 | Sell a real right, establish the obligation by a bond, then assign the claim. Three acts, each lawful; the shortcut is not. |
| Currency exchange with a spread, and forward exchange | Kind and possession — seif 6 | Two distinct kinds: it is a sale. But the counterpart must be in hand, and in practice the whole of it. |
| A pre-order paid in advance, at a reduced price | Possession — seif 7 | The seller must have the thing. An order placed with his own supplier does not count: collection is wanting. |
| A forward contract on a standing crop | Possession and custom — seifim 8, 10 | Three conditions: that the thing already exist, that it grow out of what exists, and that it be the custom to sell so. |
| Consignment, and delivery for sale with a right of return | The bearing of risk and labour — seif 14 | The arrangement stands if the loss stays with the consignor, or if the surplus is named a wage and the unsold may be returned. |
| Import-export: who bears the carriage, and at what price settlement is made | The bearing of risk and labour — seifim 15, 16 | The risk must fall on the one who awaits nothing. Freight and trouble must be genuinely paid. |
| Financing whose repayment depends on a venture’s success | The form — seif 18 | Coins for coins: the form of the loan stands, and the risk does not redeem it. The Radbaz is stricter still, for want of asmakhta. |
| Insuring a stock, a cargo, an asset | The form — seif 19 | Nothing is to be returned: it is כעין מכר, a manner of sale. Paying the premium in advance changes nothing. |
A level of ruling must also say what it does not decide. Four points remain in dispute in the apparatus itself, and none of them is settled by reading.
| The point | The state of the discussion |
|---|---|
| The amount of the wage of trouble | The Shakh, reading the Beit Yosef, requires labour and maintenance in full; the Taz is content with a modest sum; the Ba’er Hetev sets the two views face to face without concluding. Any figured application belongs to a Rav. |
| The threshold of the “moderate rise” at seif 1 | The Pit’hei Teshuva reports from the Beit Ephraim, in the Knesset HaGedolah’s name, a fifth. It is a reported benchmark, not a rule of the Shulhan Arukh — and it presupposes that nothing was said. |
| The qualification of the sea loan at seif 18 | The Rivash distinguishes according to the liability taken, the Levush denies the distinction, the Radbaz aggravates through asmakhta. This changes nothing in the prohibition itself, but everything in the civil consequences. |
| The fate of a bargain already concluded unlawfully | The Tashbetz, cited by the Pit’hei Teshuva, holds it void where no act of acquisition was performed, and that the money must be returned at once. But if the seller transgressed and delivered, the buyer need not return the excess — and the Pit’hei Teshuva notes that, according to our practice, he must return it to acquit himself towards Heaven. |
« ומיהו אם עבר המוכר ונתן לקונה כשער של איסור אין הקונה חייב להחזיר לו מה שיתן יתר על שער ההיתר משום דאבק רבית הוא » (פת״ש יו״ד קע״ג ס״ק ח)
« אבל לדידן גם בזה חייב להחזיר לצאת י״ש » (פת״ש יו״ד קע״ג ס״ק ח)