Blog Yomi – Bava Metzia #47/Daf 48

We begin toward the bottom of דף מ״ז עמוּד ב:

תְּנַן, רַבִּי שִׁמְעוֹן אוֹמֵר: כֹּל שֶׁהַכֶּסֶף בְּיָדוֹ – יָדוֹ עַל הָעֶלְיוֹנָה. מוֹכֵר הוּא דְּמָצֵי הָדַר בֵּיהּ, לוֹקֵחַ לָא מָצֵי הָדַר בֵּיהּ. אִי אָמְרַתְּ בִּשְׁלָמָא מָעוֹת tקוֹנוֹת – מִשּׁוּם הָכִי מוֹכֵר מָצֵי הָדַר בֵּיהּ, לוֹקֵחַ לָא מָצֵי הָדַר בֵּיהּ. אֶלָּא אִי אָמְרַתְּ מָעוֹת אֵינָן קוֹנוֹת – לוֹקֵחַ נָמֵי לִיהְדַּר בֵּיהּ

We learned in the mishna that רַבִּי שִׁמְעוֹן says: Anyone who has the money in his possession has the upper hand [יָדוֹ עַל הָעֶלְיוֹנָה]. It is the seller who can retract from the transaction; the buyer cannot retract from the transaction. The Gemara asks: Granted, if you say that giving money effects acquisition of מְטַלְטְלִין, it is due to that reason that the seller can retract from the transaction and the buyer cannot. רַבִּי יוֹחָנָן explained that the חַכָמִים instituted מְשִׁיחָה to complete the transaction for the benefit of the buyer so that the seller will expend great effort and rescue the item, as it is still his own property. But the seller acquires the money immediately. But if you say in general that giving money does not effect acquisition of movable property, let the buyer also renege on the transaction. As Rashi notes:

אי אמרת בשלמא דבר תורה מעות קונות – ומשיכה תקנתא דרבנן היא אתא ר’ שמעון למימר דיינו אם אמרינן חזרה במוכר דמכי מוקמת להו ברשותיה לחזור בו אם הוקרו מסר נפשיה לאצולינהו מימר אמר עדיין שכרי תלוי בהם שאם יתייקרו אחזור בי ולוקח לא מצי הדר ביה דמעות קונות אלא אי אמרת מן התורה מעות אינן קונות לוקח נמי יחזור

We go back and forth regarding when a sale is finalized. For those who hold that מְשִׁיחָה is required, then either party can back out of the deal. In a sense, this is the equivalent of a lemon law – building in extra time so that for whatever reason, either the buyer or seller can legally renege on the transaction.

Let’s zoom ahead a bit:

תְּנַן: אֲבָל אָמְרוּ, מִי שֶׁפָּרַע מִדּוֹר הַמַּבּוּל – הוּא עָתִיד לִיפָּרַע מִמִּי שֶׁאֵינוֹ עוֹמֵד בְּדִיבּוּרוֹ. אִי אָמְרַתְּ בִּשְׁלָמָא מָעוֹת קוֹנוֹת – מִשּׁוּם הָכִי קָאֵי בַּ״אֲבָל״, אֶלָּא אִי אָמְרַתְּ מָעוֹת אֵינָן קוֹנוֹת, אַמַּאי קָאֵי בַּ״אֲבָל״? מִשּׁוּם דְּבָרִים

We learned in the mishna: The חַכָמִים said: “He Who exacted payment from the people of the generation of the flood, and from the generation of the dispersion, will in the future exact payment from whoever does not stand by his statement”[מִי שֶׁפָּרַע מִדּוֹר הַמַּבּוּל – הוּא עָתִיד לִיפָּרַע מִמִּי שֶׁאֵינוֹ עוֹמֵד בְּדִיבּוּרוֹ]. Granted, if you say that giving money [מָעוֹת] effects acquisition of מְטַלְטְלִין, it is due to that reason that one who reneges on the transaction after the money is paid stands subject to the curse of מִי שֶׁפָּרַע. But if you say that מָעוֹת does not effect acquisition of מְטַלְטְלִין, why would one who reneges after the money is paid be subject to מִי שֶׁפָּרַע? The Gemara answers: It is due to the fact that he reneged on a statement of his committing himself to buy the item.

Rather than slog through the text of the remainder of today’s Daf, I’d rather spend some time on the principle we just noted, which is this curse placed upon someone who doesn’t hold true to his word – not only an important principle in business ethics in the context of our Gemara, but an important ethical principle in general, and known in the vernacular as the “מִי שֶׁפָּרַע”. As noted above, the full phrase is: מִי שֶׁפָּרַע מִדּוֹר הַמַּבּוּל – הוּא עָתִיד לִיפָּרַע מִמִּי שֶׁאֵינוֹ עוֹמֵד בְּדִיבּוּרוֹ, It’s a curse that the wanton disregard of the value of honoring verbal commitments will exact a toll similar to what הקבּ״ה brought to bear on the דּוֹר הַמַּבּוּל.

Our Gemara will go on to say that even when wasn’t the קִנְיָן wasn’t completed at the level required מִדְאוֹרַייְתָא (such as through מְשִׁיחָה), and the מִי שֶׁפָּרַע curse didn’t formally go into effect, the חַכָמִים do not look favorably upon someone who doesn’t keep his word. We’re going to encounter the discussion again on דף ס״ג עמוּד ב where our Gemara will state: לְמַאי אִי לְמִקְנֵא הָא לָא קָנֵי אִי לְקַבּוֹלֵי עֲלֵיהּ מִי שֶׁפָּרַע כִּי לָא מִיתְחֲזֵי נָמֵי מְקַבֵּל עֲלֵיהּ מִי שֶׁפָּרַע, so it would serve us well to become more familiar with it now.

I’ll share with you a nice resource online from the Rambam Press (no relation) on מִי שֶׁפָּרַע which states the following (reference to Rambam’s Sefer Kinyan, Hilchos Mechirah, Perek 7-9):

“A person who retracts unethically from a sale should receive a curse from the Bet Din called
mi shepara. Thereafter the seller returns the money to this buyer. Basically, the Bet Din curses the person who retracted for not keeping his word. Mi shepara occurs in following circumstances.

• Money has exchanged hands between purchaser and seller, but meshichah or hagbahah has not yet taken place, and then the seller or the purchaser retracts.
• If purchase is made on basis of a debt, it is still considered that money has exchanged
  hands.
• Only a verbal agreement took place, but purchaser marked the article in some way as a sign. He would be subject to mi shepara if he retracts. [If however, the custom of the place is that making such a sign signifies a kinyan, then neither party can retract.]
• If agreement was only verbal and retraction takes place, this is viewed in a very poor light by the Sages, although not subject to mi shepara.
• Similarly, if one promised a small gift and did not keep his promise.
• Similarly, if a shaliach (agent) disobeys the instructions of the one who sent him to purchase, and purchased the item, with his own money, for himself instead.”

Another good resource is the OU Torah Online series, and here is the discussion about the מִי שֶׁפָּרַע curse from Rabbi Ari Enkin in its entirety:

The Talmud teaches that one who reneges on his word, whether in business or in any other commitment, is worthy of the curse of “mi shepara.“^[1] The mi shepara curse is proclaimed as follows, “He who punished (“mi shepara”) the generation of the Flood, the Tower of Babel, S’dom and Amora, and the Egyptians by the sea will punish one who does not keep his word.” The mi shepara curse is considered to be especially serious and even drastic. Nevertheless, a Beit Din would not hesitate to pronounce the curse upon someone who unlawfully reneges on his word. In order to properly understand the significance of this curse, some background information is in order.

According to Torah law, one legally acquires movable property once one has paid for it. Our sages, however, decreed that in addition to paying for something, one must also perform a “kinyan” in order to be considered the rightful owner of the item. A kinyan is an act that demonstrates acquisition and ownership. It can be accomplished by pulling the item (known as “meshicha“) or lifting it (known as “hagba’ah“), among other types of kinyanim. Therefore, according to halacha, even if one paid for an item, one does not legally acquire it until a kinyan is made. The only exception is real estate which does not require a kinyan and ownership is transferred upon payment.[2]

Nevertheless, even though one does not officially own an item until a kinyan is made, one may not renege on one’s commitment to purchase it once all, or even part, of the money has been paid.^[3] This is true even if one is willing to forgo one’s deposit!^[4] In fact, one should not renege on a deal once an agreement has been reached even if no money changed hands.^[5]The only exception to this rule is if new information, developments, or financial considerations suddenly arise that would have deterred one from getting involved in the agreement in the first place.^[6] A seller is also not permitted to renege on his side of the deal once money has changed hands.

One who paid for something and then decides to back out of the deal must retrieve the money from the seller. The seller is exempt from responsibility for the money should he lose it through no fault of his own. If it is the seller who backs out of the deal, then he is fully responsible for the money and is liable if it is lost.^[7] One may renege on a deal if the item in question has been destroyed or stolen, and in some cases, if it has or is expected to depreciate considerably.^[8]

Anyone who unjustifiably reneges on a deal is not conducting himself as is expected of a Jew,^[9] and is labeled by our sages as a “mechusar amana” – a person of untrustworthy character.^[10] It seems that the sages enacted the mi shepara curse at about the same time they instituted the requirement of a kinyan in order to finalize the sale of an item.^[11] Perhaps this close association between a kinyan and the mi shepara curse is intended to further deter people from backing out of a deal once money has changed hands.^[12]

In the event of a dispute between a father and a son in which the father is deserving of the mi shepara curse, the son may not ask the Beit Din to pronounce the curse upon his father due to his obligations of kibbud av va’em. He may, however, ask the Beit Din to remind his father that his conduct warrants the curse of mi shepara.^[13] On a related note, children should endeavor to honor any agreements and commitments that their deceased father may have made in his lifetime.^[14]

[1] Bava Metzia 47b-49a; CM 204:4.

[2] CM 190:1.

[3] Bava Metzia 44a, 48a, CM 204:1.

[4] Sma, CM 204:3.

[5] CM 204:11.

[6] Chatam Sofer, CM 102; Shevet Halevi 4:206. See also Tzitz Eliezer 8:40.

[7] Rambam, Hilchot Mechira 7:3.

[8] CM 204:2.

[9] Rambam, Hilchot Mechira 7:1.

[10] Bava Metzia 49a; Rambam, Hilchot Mechira 7:9.

[11] See Rambam, Hilchot Mechira Chap. 7.

[12] Noda B’yehuda, YD 69.

[13] Maharsham 1:40.

[14] Mishnat Yaavetz, CM 33. See also Achiezer 3:40:3.