תלמוד על קידושין 1:1

MISHNAH: ¹A general reference to this Mishnah and the first paragraph of the Halakhah is in D. Sperber, Roman Palestine 200–400, Money and Prices, Ramat Gan 1974; Chapters XI,XIV. Silver acquires gold but gold does not acquire silver²It is accepted in rabbinic law (in the name of R. Yannai in Halakhah 4:2, in the Babli 46b in the name of R. Joḥanan) that in Biblical law money acquires both ownership and possession though this is denied in the other Yerushalmi Tractates in the name of R. Joḥanan, (Ševi‘it 8:1 Note 15, Erubin7:11 24d l. 3). But it is universally accepted that in rabbinic practice payment only establishes a claim to ownership and possession, not a fact. This is to avoid fraudulent transactions in which the seller sells non-existent goods and then claims that they were lost, e. g., by fire, between sale and delivery when they already were owned by the buyer but not yet in his possession. On the other hand, in a barter transaction taking possession by one party automatically transfers both ownership and possession to the other party (Qiddušin 1:6). If a person loses because the other party who took money in a commercial transaction then refuses to go through with the sale and offers to refund the money, he can ask the court to publicly curse the defaulting party but he has no legal way to force completion of the sale (Mishnah 2). But if the buyer took possession of the merchandise, then the sale is completed; the seller can force payment in court and is not required to take the article back. This means that transactions involving money are considered a kind of barter in which coins always are passive but never active objects of barter.
There is no doubt that gold or silver bars are merchandise, objects of trade and barter. The question is about coins. If gold coins are exchanged for silver coins and vice-versa, the question is which of the species are considered as merchandise and which as coins in the transaction. The Babli and all sources depending on it (Mishnah and Tosephta mss.) state that “Gold acquires silver but silver does not acquire gold,” the opposite of the Yerushalmi. The Halakhah states that originally, the Yerushalmi Mishnah was identical with the Babli; the change can be dated to the early Third Century.
D. Sperber has argued convincingly that this is not a question of gold or silver standard since both the Roman and the Parthian, later Persian, empires actually were on a gold-and-silver standard. But the Persian empire never experienced the disastrous manipulation of silver coinage which started with Caracalla and ended with the hyper-inflation of the military anarchy, only to be brought under control by Diocletian’s currency reform. By contrast, even the worst Roman emperors did not adulterate gold coinage (if they minted gold at all.) Therefore, in Babylonia silver coin was the common vehicle of trade while gold coin was used only in very large transactions or as a vehicle for hoarding. This means that silver coin was “money” but gold coin was “merchandise” even when gold coin did not trade at an agio over the official ratio. But in the Roman empire in the period of formulation of the Mishnah (roughly 190–230) silver coins changed from dependable vehicle of commerce to objects to be disposed of as quickly as possible; silver became a merchandise relative to gold coin.. Brass acquires silver but silver does not acquire brass³In good times, brass coins are local currency only which cannot be used at far-away places; they are tokens rather than coins. When tokens are exchanged for coins, the tokens are the merchandise. In bad times, when “silver” coins were brass coins slightly washed in a silver solution, brass coins did not exist.. Bad coins⁴Coins taken out of circulation; they are not money in the legal sense. acquire good ones but good ones do not acquire bad ones. A blank⁵Metal disks ready to be stamped in the mint. They are not money until stamped. acquires a coin but a coin does not acquire a blank. Movables acquire coins but coins do not acquire movables²It is accepted in rabbinic law (in the name of R. Yannai in Halakhah 4:2, in the Babli 46b in the name of R. Joḥanan) that in Biblical law money acquires both ownership and possession though this is denied in the other Yerushalmi Tractates in the name of R. Joḥanan, (Ševi‘it 8:1 Note 15, Erubin7:11 24d l. 3). But it is universally accepted that in rabbinic practice payment only establishes a claim to ownership and possession, not a fact. This is to avoid fraudulent transactions in which the seller sells non-existent goods and then claims that they were lost, e. g., by fire, between sale and delivery when they already were owned by the buyer but not yet in his possession. On the other hand, in a barter transaction taking possession by one party automatically transfers both ownership and possession to the other party (Qiddušin 1:6). If a person loses because the other party who took money in a commercial transaction then refuses to go through with the sale and offers to refund the money, he can ask the court to publicly curse the defaulting party but he has no legal way to force completion of the sale (Mishnah 2). But if the buyer took possession of the merchandise, then the sale is completed; the seller can force payment in court and is not required to take the article back. This means that transactions involving money are considered a kind of barter in which coins always are passive but never active objects of barter.
There is no doubt that gold or silver bars are merchandise, objects of trade and barter. The question is about coins. If gold coins are exchanged for silver coins and vice-versa, the question is which of the species are considered as merchandise and which as coins in the transaction. The Babli and all sources depending on it (Mishnah and Tosephta mss.) state that “Gold acquires silver but silver does not acquire gold,” the opposite of the Yerushalmi. The Halakhah states that originally, the Yerushalmi Mishnah was identical with the Babli; the change can be dated to the early Third Century.
D. Sperber has argued convincingly that this is not a question of gold or silver standard since both the Roman and the Parthian, later Persian, empires actually were on a gold-and-silver standard. But the Persian empire never experienced the disastrous manipulation of silver coinage which started with Caracalla and ended with the hyper-inflation of the military anarchy, only to be brought under control by Diocletian’s currency reform. By contrast, even the worst Roman emperors did not adulterate gold coinage (if they minted gold at all.) Therefore, in Babylonia silver coin was the common vehicle of trade while gold coin was used only in very large transactions or as a vehicle for hoarding. This means that silver coin was “money” but gold coin was “merchandise” even when gold coin did not trade at an agio over the official ratio. But in the Roman empire in the period of formulation of the Mishnah (roughly 190–230) silver coins changed from dependable vehicle of commerce to objects to be disposed of as quickly as possible; silver became a merchandise relative to gold coin.. This is the rule: all movables acquire one another⁶Mishnah Qiddušin 1:6..

Rav said, none of these are invalid¹⁰As explained in Chapter 2, Note 132, if a Cohen divorces his wife with a document which is found to be invalid but which possibly might have been valid, (the technical term is: the document has the “smell” of a bill of divorce) one forces the Cohen to deliver a valid divorce document to his wife and he is prohibited from changing his mind and not divorce her. Rav states that all the bills of divorce mentioned in the Mishnah except the last do not have a “smell” of a bill of divorce; they are pieces of paper, not bills of divorce, neither valid nor invalid. except for the last which is invalid¹¹The bill written for two wives with identical names is invalid but if the husband is a Cohen he is forced to divorce the wife to whom the bill was delivered.. Issi¹²In the Babli, 24b/25a, Rav’s opinion is atributed to Rav Assi (= Issi) and vice versa. said, all are invalid¹³And force a definitive divorce if made by a Cohen. In the Babli, 24b, this position is attributed to Rav. except for the first which is not invalid. Rebbi Abba bar Ḥinena¹⁴An Amora of this name is not otherwise known. In the Geniza text, the name is Ze‘ur bar Ḥinena, known from both Talmudim as the name of a third-Century Amora who almost was killed by Queen Zenobia of Palmyra. said, all are invalid¹⁵In the Babli, 24b, this appears as Samuel’s opinion.. The word of Rebbi Simeon ben Laqish implied that all are invalid since Rebbi Simeon ben Laqish said, if he wrote the essential text with the formula, it is invalid¹⁶The sentence about R. Simeon ben Laqish is missing in the Geniza text. R. Simeon ben Laqish considers the statement that the document is one of divorce so important that its writing without the explicit instruction by the husband invalidates the bill; cf. Chapter 2, Notes 100,101. But his choice of the word “invalid”, not that “there is no ‘smell’ of a divorce”, shows that in all cases he holds that any material expression of the husband’s desire to divorce prohibits the Cohen to remain married to his wife.. The word of Rebbi Joḥanan implied that none are invalid since Rebbi Joḥanan said, if he wrote the essential text with the formula, it is valid¹⁷R. Joḥanan strictly follows the Mishnah that only the names of husband and wife and the date have to be written by the explicit instruction of the husband. Therefore, he also follows the language of the Mishnah, not that the bills of divorce are simply invalid but are “invalid to be used in divorce”, meaning that the use of any of these documents cannot imply any divorce in any form. (The classical commentators all feel obliged to switch the positions attributed to R. Simeon ben Laqish and R. Joḥanan; this position cannot be sustained against the testimony of both mss.) The Babli, 25a, quotes R. Joḥanan in the sense given here but explains his disagreement with the position attributed here to Rav by the fact that he never admits retroactive validation of documents; therefore, he cannot admit that the husband has the power to decide after the writing of the document to which wife it shall apply.. Does the word of Rebbi Eleazar imply that none are invalid? Since Rebbi Eleazar asked: if one wrote a bill of preliminary marriage¹⁸Mishnah Qiddušin 1:1 states that a preliminary marriage can be effected either by a transfer of valuables, or a contract, or sexual relations. It is then explained [Qiddušin 1:1 (58c 1. 29), Babli 9a] that the contract is a written statement by the groom declaring his future bride to be his wife; the marriage is effected by the acceptance of the letter by the adressee (or, if she is underage, her father). not for a specific name¹⁹Meaning: not for a specific woman; since no name has to be written in the statement, it may simply read: By accepting this document, you are my wife. The document contains no formulaic text., does preliminary marriage take hold? If he had a problem with divorce, would he ask about preliminary marriage²⁰If he thought that any of the bills of divorce mentioned in the Mishnah would possibly count as active for a Cohen’s wife, he would have to ask about circumstances of divorce, where the problems are real and grave.? Since in the case of divorce, where the document is required to be for a specific name and he did not write for a specific name, divorce will not touch her, is it not logical that in the case of preliminary marriage, where a specific name is not required and he did not write for a specific name, preliminary marriage take hold with her²¹The Geniza text has a longer argument: “Since he has a problem with divorce where [the documents] are not invalid; therefore he asks about preliminary marriage. If you say he has a problem with divorce, he should not ask about preliminary marriage. Since in the case of divorce, where it is required that the document be for a specific name and he did not write for a specific name, divorce did not touch her; in the case of preliminary marriage, where a specific name is not required, if it was not for a specific name preliminary marriage should take hold of her. It should be so. That is impossible. Since in the case of divorce, where it is required to be for a specific name, if it was not for a specific name, divorce did touch her; in the case of preliminary marriage, where a specific name is not required and he did not write for a specific name, preliminary marriage should take hold of her.” It is difficult to make coherent sense of this text.? That should be obvious to him. Really, the following is obvious to him: Since one inferred the bill of preliminary marriage only from divorce²²The validity of a preliminary marriage by a symbolic bride purchase is given biblical status by reading Deut. 24:1 “if a man take a wife” as “if a man buy a wife” since in Mishnaic Hebrew the verb לקח means “to buy” [Qiddušin1:1 (58b 1.35), Babli 4b]. The possibility of marriage by document is inferred from Deut. 24:2: “She [the divorcee] left his house, went and became another man‘s.” Since “becoming a manʻs” means to marry him, the verse connects leaving (divorce) with becoming (marriage). Since leaving is effected by a document, so becoming can be effected by a document [Qiddušin 1:1 (58b 1.33), Babli 9b]. Therefore, a document invalid for leaving must be invalid for becoming., and in the case of divorce she is not divorced, in the case of preliminary marriage she is not preliminarily married²³The Babli agrees, Qiddušin 9b. There, the question is attributed to R. Simeon ben Laqish; the argument agrees with the latter’s position as given here..

There, we have stated: If anything is given instead of money, if one entered in possession, the other is obligated for its exchange¹⁷Cf. Note 2, Qiddušin 1:6, Note 521.. Rebbi Joḥanan said, they stated this only about an ox for a cow, or a donkey for an ox; but heap against heap one did not acquire. Rav Jeremiah in the name of Rav: Even heaps among heaps he did acquire¹⁸Qiddušin 1:6, Note 525. If one of the parties took possession, the other party automatically obtained possession of the exchanged property.. Rebbi Abba bar Mina in the name of Rav: One who exchanged אברוקלון against אמברוקלון did acquire¹⁹The reading of R. Ḥananel and ‘Arukh is: One who exchanged אמבורקלין against אמבורקלין did acquire. Arukh explains as “bundles of sheets” which in Italian (dialect of Rome) would be called ברוקלי (variants ברוקלון, ברוקלו) or (תרצילו, טורצלי, תרוצולו, תורצלו) .טרצילו. The second word is identified by Krauss in Additamenta ad librum Aruch Completum as turzello. M. Sachs (J. Levy, S. Krauss) identifies אמבורוקלון as Latin involucrum “wrapper; covering; envelope”, from involvo “to wrap up, roll up.”. Turzello, from Latin tortus “a twisting, winding”, from torqueo “to twist, to turn” is an acceptable translation of involucrum. In this interpretation, the statement implies that the laws of barter also apply if something is exchanged against an object of the same kind. It is difficult to understand why this should not be so.
H. Y. D. Azulay, in his פתח עיניים, quotes from the ms. of R. Menaḥem di Lonzano בדיקלין באמה בדיקלין. E: אמלוקנין באמבוליקין.
However, Maimonides connects the statement with the later Mishnaiot whose subject is the cancellation of a sale because of overcharging by the seller or underpaying by the buyer. He reads the statement as meaning that a barter is concluded the moment one of the parties takes possession of the object coming to him, and no legal recourse exists for the party realizing that he made a bad bargain. He must hold that אברוקלון and אמבורוקלון are two different objects. It is possible that he reads the two words as “needle” and “silk cloth” since he writes (Mekhirah 13:1): “One who barters vessels agains vessels or animals against animals, even a needle for silk cloth or a kid goat for a horse, has no claim of overcharging since he might prefer a needle to silk cloth.” The horse is specifically exempt from the rules of overcharging in Halakhah 4, Note 132. (Ravad objects and thinks that Maimonides misunderstood the Yerushalmi.) The commentary Migdal ‘Oz (R. Šem-Ṭob Gabbai) readsאמבורקלין אמטרקלין, but gives no explanation of the words beyond noting that these clearly denote different objects..