We learned right at the start of this Perek (chapter) that a person is not allowed to pay for an item if the merchandise he is supposed to receive will be delivered only at a later date. The price may go up by then, and the buyer will end up getting much more than he actually paid for, since the items are worth more when he receives them. It looks like interest at that point, because we might think that, in exchange for handing over the money and allowing the seller to use it during the interim period before handing over the merchandise, the buyer is receiving more of the item. Therefore, the Hachamim (the Sages) said it is not allowed on a rabbinic level. But since it is only Rabbanan (rabbinic level), they included certain leniencies.
One of them is that if the merchandise is already in the seller’s hands, and he currently owns it, then he is allowed to take the money. It is as if the item was purchased and the seller is holding it and keeping watch over it for the buyer. Even though the buyer will receive it later, he already owns it—for example, while it is in the seller’s warehouse. We will discuss what happens if the seller does not actually have the merchandise in stock, but it is accessible to him in the shuk (market). We said in Mishnah Aleph (first Mishnah) that this could also count, since he can quickly take the money and buy it from the shuk. It is as if he owns it.
So that was another leniency. We spoke about one leniency that led into the next. The first leniency was that if the seller has the item in stock but is keeping it in his warehouse, the buyer could give him money in advance. It is as if he purchased the item that was in the warehouse. The second leniency was that even if the seller does not have it in stock, but it is accessible to him in the shuk, it is as if the buyer owns it, because the seller could quickly buy it from the shuk with the money he received, have it in stock, and then hand it over to the buyer. So we will elaborate on that second leniency in this Mishnah.
The Mishnah says that if the buyer wants to buy produce from the seller without taking it yet, and the seller does not have it in stock, he is not allowed to buy the produce until there is a set price for it in the shuk. When fruit comes to market, they have to see how much supply there is. Once there is a lot of supply, the price will be lower. If there is not a lot of supply, the price will be higher. Until the market price for that type of produce is established, the seller is not allowed to buy the produce with the money he receives from the buyer. Therefore, he cannot be considered to own the produce in some way, because he does not have access to it. But once the market price is established, you can set the price and pay in advance. The buyer is allowed to deal with the seller because he can technically go and get it whenever he wants. Even though the seller does not have the produce, another person would have it, and it is all one market price. Therefore, the seller could quickly buy the produce for the going rate he already established with the buyer. It is considered as if he owns the produce, and the buyer is allowed to pay him in advance.
What we just said applies only if the seller does not have the produce in stock at the time the buyer pays in advance. But if the seller does have it at that time, then the buyer can be considered to have acquired it immediately, even if there is no established market price, because the seller has it in stock. If they make a deal between them, the seller could simply hand it over, regardless of the market price; their deal is their deal. We will elaborate on that leniency. Let’s say the seller here was the first among the harvesters. He was processing his grain, but there was no established market price for this item. The buyer is allowed to set a price in advance from the stack, even though there is no market price. The same applies to the wine that will be made from the grapes in the tub, and the oil that will be made from the olives in the vat that the seller is preparing to press. It also applies to earthenware vessels made from the clay a potter has, and to earthenware vessels or plaster once the materials he had were being put in the furnace.
Basically, what we are saying here is that even though all of these items in question are not fully processed and readily available to be handed over to the buyer, we consider them as if they are already processed and fully done. We are talking about unprocessed grain and grapes that are going to be turned into wine. Since they are in the seller’s possession and he is going to turn them into something, we consider them as if they have been purchased by the buyer and he owns them. They are being housed and held by the seller until a later date.
Now we will talk about three opinions about paying in advance for fertilizer when there is no established price for the fertilizer, because there is access to it. We have to know that fertilizer was made by putting straw in the street in the wintertime so that people would walk over it and it would decay. Later on, it was gathered and used to fertilize the fields. In the summer months, everybody had fertilizer, because everything they had from the previous winter was being used. But in the winter months, not everybody had fertilizer. The Mishnah says a person is allowed to set a price and pay in advance for fertilizer all year long, even during the winter. Even though not everybody has fertilizer, certain people do. So even though the seller may not have it in stock, it is accessible to him. He could easily buy it for the market value and hand it over to the buyer. That is the first opinion. There are three opinions. Rebbe Yose Omer says that a person is not allowed to set a price for fertilizer in advance unless the seller actually has fertilizer in his possession. That is the only time, even during the summer, when it is very common. According to Rebbe Yose, fertilizer is like any other material. If there is no established price for it in the market, the seller has to have it in stock, in his possession, before he is allowed to take money for it. The third opinion allows a person to pay for fertilizer in advance even if the seller does not have any in stock, but only during the summer months. Everybody has it, and therefore it is very easily accessible to him.
We will now go back to the case of the Mishnah, where we said that if a person wants to buy produce but the seller does not have any in stock, and there is an established market price, the buyer could pay for the produce now and basically lock in his price. He does not have to pay more for it later if the price goes up, since the seller could quickly go to the market and buy it. At all times, basically, the seller had that ability. If he did not do it, that is on him. But we consider the produce to have already been purchased by the buyer, and he owns whatever is going to be bought later on.
What happens, though, if the buyer is not nervous about the price going up, but is nervous about the price going down, so that he will have retroactively paid too much for it? The Mishnah says that when the buyer agrees to a price and pays in advance, he is paying on the condition that the price of the item does not go down. If it does go down, the seller will give him the cheaper price; the seller gets an advantage here. So we understand that the agreement is all under the condition that the price will be the same or higher. But if it goes lower, the seller would give him that lower price. This is a condition the buyer can make, but the implication is that he has to make the condition. If he does not make it, the seller could give him the product at the original, higher price they agreed upon. That seems to be what we are saying.
Rabbi Yehuda disagrees. Rabbi Yehuda says that even if the buyer did not agree to a price and pay in advance for produce at a better price—even if he never made an explicit condition in the original contract that if the price went down he would not have to pay that higher amount, but would pay the lower price—if the price went down, the buyer could say to the seller, “Give me the produce at a better, lower price, or give me my money back.” According to Rabbi Yehuda, when the buyer intends to buy produce that he is going to receive in the future, there is automatically a condition that if the price goes down, he will pay the lower price.