Futures

Bava Metzia (5:7) | Yisrael Bankier | 6 years ago

The fifth perek of Bava Metzia deals with the prohibition of charging interest - ribbit. The Mishnayot also deal with the rabbinic extensions of the prohibition where ribbit may arise in the context of a business deal rather than a direct loan. One such case is futures. The Mishnah (5:7) explains that one is not allowed to pay another to supply them with a quantity of produce at a future date. The concern is that if the price of the produce increases, then the supplier will be providing that produce of a value greater than the sum of money he was given at the outset. The outcome has the appearance of interest. The Mishnah however explains that if the going price for that produce has been released, then the arrangement is permitted. The Mishnah explains that the reason it is permitted is that "even though he might not have the produce, another supplier would". How do we understand the Mishnah?

The Gemara (63b) cites Raba and Rav Yosef that explain that the purchaser can argue that he gained no benefit from the supplier despite the subsequent price increase. He could argue that had he not given the supplier the money, he could have purchased the produce himself from the outset. The Nimukei Yosef appears to understand the Mishnah according to the rationale of Raba and Rav Yosef as he explains that the purchaser could have bought the produce from someone else, stored it and benefitted from the price increase.

The Tosfot Yom Tov however cites the Tosfot (62b) who explain the Mishnah differently. They understand that Mishnah is referring to the supplier and not the purchase. That is even if the supplier does not have the stock at the time of the deal, the supplier could have sourced it from someone else. It is therefore considered as if the supplier had the produce in stock at the time of the agreement. With that rationale in mind, the issue of ribbit is avoided since the agreement is a straightforward business transaction. The Tosfot continue, that even though the purchaser did not acquire the produce through meshicha (drawing the produce towards them) the issue of ribbit would still be avoided. This is because the supplier would not be able to retract due to the mi shepara (curse incurred by one that retracts after the money has been paid). Consequently, the Tosfot explain that it is considered as if the produce is already owned by the purchaser and any increase is considered as if it occurred while in his possession. The Tosfot Yom Tov stresses that the issue of ribbit can only be avoided if the produce is already considered as if it is in the possession of the purchaser from the outset.

Ostensibly the above rationale should apply beyond the laws of ribbit as well. Note that the Tosfot understand that if the supplier wanted to retract then a mi shepara would apply. Indeed, the Rambam (Mechira 22:3) also rules that if someone retracts in such a business arrangement that was made after the prices were public, he would receive a mi shepara. The Maggid Mishnah explains that the Rambam is based on our Mishnayot.

The Kesef Mishnah does not disagree with the Rambam's ruling. Nevertheless, he argues that the laws in our perek apply to laws of ribbit only and no conclusions can be drawn to laws of acquisitions. (The Kesef Mishnah finds the basis for the Rambam's ruling elsewhere.) Why so?

The Tosfot Yom Tov explains that the Kesef Mishnah's logic is in line with the Raavad's. One must recall that ribbit through a business transaction is prohibited rabbinically. The Chachamim permit the arrangement under these conditions not because if the prices have been released that the acquisition is considered complete, but simply because the Chachamim can build leniencies into the laws that they introduced. Consequently, since this ruling may be a result of a leniency no conclusion should be drawn to the laws of acquisitions in general.

The Tosfot Yom Tov however notes that since both the Tosfot and Rashi bring the mi shepara as a basis for permitting this arrangement, it suggest that the laws – ribbit and acquisition – are connected. Consequently, he argues that the Kesef Mishnah should not have been so quick to reject the Maggid Mishnah's explanation of the Rambam.

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