Siman 173 is a siman of cases. Taking it seif by seif would produce only a list — and a list of nineteen entries is not retained. It is therefore arranged here by the five mechanisms that really decide: speech, the public measure, possession, the bearing of risk, labour. A master table, placed at the start, allows any seif to be found in the order of the book.
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« וכשם שאסור למכור ביוקר בשביל המתנת המעות כך אסור ליקח בזול בשביל המתנת המעות » (טור יו״ד קע״ג)
« אָמַר רַב נַחְמָן: כְּלָלָא דְרִיבִּיתָא, כֹּל אֲגַר נְטַר לֵיהּ – אָסוּר » (בבא מציעא ס״ג ע״ב)
What follows therefore does not take the seifim in the order of the book. They are arranged by the mechanism that decides them — five mechanisms, plus one disqualifying shape and two categories apart. One seif may appear twice, because two criteria operate in it.
Before any one of the nineteen cases, these five questions arise in this order. The first that answers “yes” closes the file.
| # | The question | If yes | Where the siman poses it |
|---|---|---|---|
| 1 | Were the two prices stated facing each other — “so much now, so much later”? | Forbidden, without further examination, in selling as in buying. | seifim 1, 3, 7 |
| 2 | Does the object have a known rate, or a commonly accepted valuation? | The gap is measurable, hence visible, hence forbidden. | seifim 1, 2, 7 |
| 3 | Does the seller already possess the thing — truly, not by a claim? | The money buys: the rebate is only a rebate. | seifim 7, 8, 17 |
| 4 | Who bears the loss if the thing perishes, or if the price falls? | He who bears it is the owner; the other has lent. | seifim 4, 10, 13, 14, 15, 16, 18 |
| 5 | Does the surplus pay for work actually performed? | It is not interest — it remains to know whether it is complete. | seifim 12, 15, 16 |
Once only, in the order of the book: what each seif is about, and by which mechanism it is decided. This is the table to return to when looking for a seif; the following sections are arranged by mechanism.
| Seif | What it treats | The deciding mechanism |
|---|---|---|
| 1 | The credit sale at a raised price — Rav Nahman’s tarsha | speech, then the public measure |
| 2 | The dumped market price is not the reference price | the public measure, correctly identified |
| 3 | The discount for early payment after the sale is concluded | speech, and the instant of conclusion |
| 4 | The sale of a claim at a discount | the bearing of risk |
| 5 | The community selling the wine franchise, then the claim | the structure: two lawful sales |
| 6 | The changer: a minted dinar against unminted coins | the kind, and possession |
| 7 | The purchase at a low price against advance payment | possession, speech, the public measure |
| 8 | The ten gourds paid for small, delivered large | possession, extended by self-growth |
| 9 | The milk, the wool, the honey — “the measure” or “much or little” | possession; then the shape of gain without loss |
| 10 | Orchard fruit, and the calf left with the seller | market custom; then the bearing of risk |
| 11 | The vine-shoots paid for in advance, and the act on what is attached | possession, acquired by an act |
| 12 | The field-watchmen’s wage, delayed against a supplement | labour |
| 13 | Wine paid for at the vintage, and the division of risks | the bearing of risk, and the disqualifying shape |
| 14 | The barrel entrusted for resale, with a right of return | the bearing of risk, and labour |
| 15 | Carrying goods to the dear market against deferred payment | the bearing of risk, and labour |
| 16 | The sela given to a merchant for six se’ahs from the village | the bearing of risk, labour, the person |
| 17 | Receiving here, repaying in kind there | possession — but there |
| 18 | The loan on the ship’s risk | the form: coins given, coins received |
| 19 | Twenty paid to one who guarantees a hundred on a ship | the form: nothing is to be returned |
This is the simplest and most absolute criterion: it knows no exception in the whole siman. As soon as the two prices are stated facing each other, the gap is declared, and nothing remains to interpret. The gemara puts it about tarsha: there he fixed, here he did not.
« אֲמַר לֵיהּ: הָתָם – קַץ לֵיהּ, הָכָא – לָא קַץ לֵיה » (בבא מציעא ס״ה ע״א)
| Where | What is said | Effect |
|---|---|---|
| seif 1 | “If you give me at once, ten; if at such a date, twelve” | Forbidden, even for an object of unknown valuation |
| seif 1 | Nothing is said, but the rise is so great that it shows | Forbidden according to the “there is one who says”, who is the Tur |
| seif 3 | “Pay me now ten” — said before the conclusion | Forbidden to take twelve afterwards |
| seif 3 | The same, said after the conclusion at twelve | Permitted: it is a waiver of a claim |
| seif 7 | “If you give me now, ten; if not, twelve” — on the buying side | Forbidden, even if the seller has the goods |
« 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)
A rise can be imputed to the delay only if one knows what the thing is worth without it. That is why everything depends on the existence of a public measure. Two forms serve for it: the market rate — pepper, wax, wheat — and the commonly accepted valuation. Where neither exists — a cloak, land, a foreign coin — the siman permits.
| The asset | Has it a public measure? | Consequence | Source |
|---|---|---|---|
| Pepper, wax, wheat | Yes — a market rate | Forbidden to raise for the delay | seif 1 |
| A cloak, a unique object | No | Permitted, without explicit speech and without a large rise | seif 1 |
| Land | No — it knows no overreaching | Permitted, save for explicit speech | ש״ך ס״ק ב |
| A foreign coin | No, per the Beit Ephraim — it is like land | Permitted on the same conditions | פת״ש ס״ק ג |
| A thing whose posted price is a distress price | The rate is not that price | The true price is the benchmark: selling at it is permitted | seif 2 |
« עיין בתשובת בית אפרים שם שכתב בשם כנה״ג דעד שוה ה׳ מקרי מעלהו מעט ע״ש » (פת״ש יו״ד קע״ג ס״ק ד)
This is the mechanism proper to the buying side. Paying in advance is lawful only if the seller has the thing: then the coins buy, and the rebate is only a rebate. If he has it not, the money remains a loan and the rebate is its fruit. The siman devotes six seifim to saying what counts as “having”.
« משום דכיון דמעות קונות מן התורה ואם חוזר בו מקבל מי שפרע ה״ז לענין רבית כאילו קנאם קנין גמור » (בית יוסף יו״ד קע״ג)
| The situation | Does it count as “he has”? | Why | Where |
|---|---|---|---|
| The goods are at his place, but he cannot reach them today | Yes | The delay is no waiting: the thing is acquired | seif 7 |
| He has the same commodity on credit with others | No | Collection is still wanting | seif 7 |
| He has the same commodity on deposit with a third party | Yes | A deposit is still its owner’s | ש״ך ס״ק י״ח |
| The gourds are small and will grow of themselves | Yes | They have already grown somewhat, and the surplus comes from the soil | seif 8 |
| The milk the goats will give tomorrow | No | This milk taken, another comes in its place | seif 9 |
| Orchard fruit still unripe | No | It is not the custom to buy it so: it has no price | seif 10 |
| The vine-shoots, after an act performed on them while attached | Yes | He has become the purchaser of the tree for its branches | seif 11 |
| The produce he will repay on arrival, if he has some there | Yes | It is a se’ah for a se’ah, and he has it | seif 17 |
| The unminted coins he has at home, at the changer’s | Yes — and on the quantity the Rama and the Aharonim divide | He sells a commodity, he does not lend | seif 6 |
« ולפ״ז כי שרינן באין שומתן ידוע אפי׳ באין לו נמי ביצא השער בדוקא היא דלא כדמשמע בעט״ז » (ש״ך יו״ד קע״ג ס״ק י״ז)
This is the most used mechanism in the siman — eight seifim out of nineteen — and it holds in one sentence: he who bears the loss is the owner. Where the owner has not changed, there was no sale; and if there was no sale, there was a loan, and the price gap is its fruit.
« דאל״כ אין כאן מכר אלא הלואה ויש כאן רבית מה שקבל יותר » (ט״ז יו״ד קע״ג ס״ק ג)
| The case | Who must bear the risk | If it is the other | Where |
|---|---|---|---|
| Selling a claim at a discount | The buyer, for the debtor’s insolvency | It is no longer a sale: it is a loan, and the discount is interest | seif 4 |
| The same, for a defect from the seller — debt paid, prior seizure | The seller may keep it | Nothing: it is not a market risk but a warranty of what he sold | seif 4 |
| The calf bought cheap, left with the seller | The buyer, for death and leanness | The rebate becomes the price of the delay | seif 10 |
| Wine paid for at the vintage | The buyer, for rise and fall; the seller may keep souring | Near to gain, far from loss — forbidden even if drawn to his own domain | seif 13 |
| The barrel entrusted for resale | According to the form: either the seller keeps the loss, or the buyer takes it and receives a wage | The arrangement leaves the frame the Rambam permits | seif 14 |
| Carrying goods to the dear market | The seller, for the road | There is a loan from now, and the market gap is its fruit | seif 15 |
| The sela given to a merchant for six se’ahs | The buyer, for theft and loss | The Rama permits all the same, if the wage of trouble is paid | seif 16 |
| Lending against the ship’s risk | It does not matter: the form of the loan stands | Forbidden in every case; only the qualification changes | seif 18 |
What pays for trouble actually taken is not interest. This mechanism plays two distinct roles in the siman, and they must be kept apart: it makes lawful what would not be (seifim 15 and 16), and it prevents the debt from arising at all (seif 12).
| Where | What the labour does | What remains in dispute |
|---|---|---|
| seif 12 | Watchmen who help thresh are not yet creditors: hire is paid only at the end, and there is therefore nothing to wait for. | Nothing: the seif carries no note of its own. |
| seif 15 | Without a wage for the trouble, the carrier works for the loan that will follow, and that work is a consideration. | The amount: full according to the Shakh reading the Beit Yosef, modest according to the Taz. |
| seif 16 | The wage paid permits the Rama’s variant, in which the road risk stays with the merchant. | The Shakh maintains there is no disagreement here: the Mehaber spoke of the case without a wage. |
| seif 14 | The excess over two is called a wage: it pays the trouble of reselling, not the money. | Nothing on the principle; everything on the place of the clause of return. |
« בבית יוסף משמע דבעי למיתן ליה שכר עמלו ומזונו משלם וע״ל סימן קע״ז » (ש״ך יו״ד קע״ג ס״ק ל)
« בב״י משמע דבעי למיתן ליה שכר עמלו ומזונו משלם ולא די בדבר מועט אבל הט״ז כתב דאפילו בדבר מועט סגי » (באר היטב יו״ד קע״ג ס״ק כ״ב)
This is not a sixth mechanism but a control test, and it applies after the other five. An arrangement may satisfy every criterion and still be forbidden, if it places one of the parties where he can only gain. The siman uses it both ways.
| Where | How it is used | The verdict |
|---|---|---|
| seif 9 | To permit: “all that my goats give, much or little” — the buyer may lose. | Permitted |
| seif 13 | To forbid: a buyer who does not take the fall upon himself can only gain. | Forbidden, says the Taz, even if he drew it to his own place |
| Rambam | To characterise צאן ברזל: the flock’s owner is near to gain and far from loss. | Forbidden, unless he accepts rise, fall and torn beasts |
« מותר שהוא קרוב להפסד כמו לשכר » (שו״ע יו״ד קע״ג:ט)
« אפי׳ (לא) משכו דהוי קרוב לשכר ורחוק להפסד כן נראה לענ״ד » (ט״ז יו״ד קע״ג ס״ק י״ט)
« הֲרֵי זֶה אָסוּר שֶׁהֲרֵי בַּעַל הַצֹּאן קָרוֹב לְשָׂכָר וְרָחוֹק לְהֶפְסֵד » (רמב״ם הלכות מלווה ולווה פרק ח׳ הלכה י״ב)
Four seifim bear on no merchandise at all, and that is what makes them the most current in the siman. They teach that a right can be sold, that money may be a commodity, and that a risk can be bought.
| Seif | The object of the transaction | Why it is not a loan | The condition |
|---|---|---|---|
| 4 | A claim on a third party | The buyer buys a risk, not a delay | The liability for insolvency must pass to the buyer |
| 5 | A communal franchise, then the claim arising from it | Two successive sales, each lawful in itself | A bond must establish the obligation before the assignment |
| 6 | Minted coin against unminted coin | Two different kinds: the second counts as a commodity | He must have the coins — and on how much, they divide |
| 19 | A guarantee against the loss of a cargo | Nothing is to be returned: it is כעין מכר | None: even paid in advance, the premium stays lawful |
« לפי שאין כאן הלואה אלא כעין מכר שמקבל עליו אחריות מעות האחר בעד סך ההוא שנותן לו זה » (ש״ך יו״ד קע״ג ס״ק ל״ד)
Twice the siman denies to one man what it permits to all. This is not a stringency of piety: it is the consequence of a fact. What others obtain because the market finds its account in it, the man of standing obtains because a favour is done him — and a favour granted to one who has paid money is a wage of waiting.
« וְנִשְׁקוֹל שִׁיתָּא! אָדָם חָשׁוּב שָׁאנֵי » (בבא מציעא ע״ג ע״א)
| Where | What is denied him | What removes the impediment |
|---|---|---|
| seif 15 | Nothing: it is the reverse — if he is a man of standing, the buyer need not pay him for his trouble, for his name exempts from the toll. | — |
| seif 16 | Giving a sela to a merchant for six se’ahs from the village, which is permitted to anyone else. | Per the Shakh in the Rivash’s name: if he takes the liability and pays for the trouble, it is permitted even to him. |
« וכשמקבל עליו אחריות ונותן לו ג״כ שכר טרחו אפי׳ אדם חשוב שרי. ריב״ש מביאו ב״י » (ש״ך יו״ד קע״ג ס״ק ל״ב)
| The term | What it denotes | Where it works |
|---|---|---|
| אגר נטר | The wage of waiting — the criterion of the whole block | everywhere; Rav Nahman’s formula |
| טרשא | The credit sale at a raised price, permitted under conditions | seif 1 |
| קציצה · מפרש | The fixed price, the explicit statement | seifim 1, 3, 7 |
| שער ידוע · שומא ידועה | The market rate, the commonly accepted valuation | seifim 1, 2, 7 |
| יצא השער | The rate is established — a condition added by the Shakh | ש״ך ס״ק י״ז |
| הקפה ביד אחרים | A claim in kind held by a third party — this is not “having” | seif 7 |
| ממילא קא רבו | What grows of itself out of what already exists | seifim 8, 9, 10 |
| אחריות | The bearing of risk — he who bears it is owner | seifim 4, 10, 13, 14, 15, 16, 18 |
| יוקרא וזולא | The price risk, rise and fall — distinct from the risk on the thing itself | seif 13; ש״ך ס״ק כ״ד |
| קרוב לשכר ורחוק להפסד | Near to gain, far from loss — the shape that disqualifies | seifim 9, 13; Rambam 8:12 |
| שכר טרחו | The wage of trouble — never interest | seifim 12, 14, 15, 16 |
| אדם חשוב | The man of standing, denied what others may do | seifim 15, 16 |
| מכר על מנת להחזיר | Sale with a right of return — the matter of siman 174 | surfaces at seifim 11 and 14 |
| עזר | The communal franchise of wine or meat | seif 5; ט״ז ס״ק ח |
| אבק רבית | Dust of interest — the ordinary regime of this whole siman | ש״ך ס״ק ד; Rambam 8:1 |
| The pitfall | What one thinks | What the siman says |
|---|---|---|
| The wealthy seller | If he does not need money he gains nothing from the delay, so it is permitted. | One looks not at the seller but at the buyer: had he had money, he would have paid today’s price. |
| The market price | The price posted in the market is the reference price. | No: it is sometimes a distress price. The reference price is what one who buys for the thing itself pays. |
| The discount for cash | It is lawful in every case. | Only after the sale is concluded at the full price. Announced in the offer, it is the forbidden alternative. |
| Natural growth | Everything that grows of itself is permitted. | Two more things are needed: that it grow out of what is already there, and that it be the custom to sell so. |
| The risk taken | Taking a risk suffices to escape the loan. | Not at seif 18: the form of the loan stands, for the coins received are not those that went out. |
| “ויש מתירין” | The Rama softens the Mehaber’s view. | According to the Shakh there is no disagreement: the Mehaber spoke of the case where the wage is not paid. |
| The token wage | Paying something suffices to cover the trouble. | Per the Shakh reading the Beit Yosef, the full wage is required; the Taz is content with little, and the Ba’er Hetev did not decide. |
| The qualification | Since it is “only” dust of interest, one may pass over it. | Dust of interest is forbidden; and the Tashbetz recalls that a bargain so made may be void, the money to be returned at once. |
« כיון שנעשה המקח באיסור בטל לגמרי ולא מקבל עליו מי שפרע » (פת״ש יו״ד קע״ג ס״ק ח)