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BAVA METZIA 64

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1) THE DIFFERENCE BETWEEN MILK FUTURES AND FRUIT FUTURES
QUESTION: The Beraisa says that when one proposes to sell for a set amount whatever milk comes out of his goats, the sale is permitted, despite the fact that the amount of milk might be more valuable than the amount of money which the buyer paid. RASHI (DH Mutar) explains that since the buyer accepts upon himself the risk of a loss (in the event that the value of milk falls) as well as the possibility of a gain (in the event that the value of milk rises), there is no Ribis.

TOSFOS (DH Ma she'Izai) asks that this ruling seems to contradict the ruling of Rav (73a) who states that one is not allowed to purchase the future crops of an orchard for a set amount when it is still unclear how large of a crop it will yield. How can Rav's ruling be reconciled with the Beraisa?

ANSWERS:
(a) TOSFOS answers that there is a difference between the two types of sales. Ordinarily, when a person who is about to milk his goats proposes to sell the milk to a potential buyer, he does so only one or two days before the milking. Since the actual commodity will soon be in his hands (or in his pail), he does not charge a lower price for the milking. He merely figures what the average milking is worth and sells the rights to the milk in advance. In contrast, it is common for speculators to buy the crops of an orchard far in advance, because they know that the farmer will generally give them a discount for advancing them the money long before the harvest. When the speculator receives a crop which is worth more than what he paid, it is Ribis. Although one might suggest that it should be permitted because the speculator accepts upon himself the risk of losing the crop to hail, ice, or violent rain, Tosfos explains that Rav maintains that these are not serious enough risks to offset the usual clear gain of advancing money long before the harvest. This is why Rav forbids the purchase of crop "futures," but agrees that one may buy goat milk "futures."

The RITVA asks that nowhere does the Gemara mention anything about purchasing the commodity far in advance. If this condition is so important in determining the permissibility of the transaction, the Gemara should mention it.

(b) The RITVA therefore explains that the transaction in the case of the orchard is forbidden because of an exit clause which protects the speculator from complete loss. This clause states that in the event that the field yields no crops at all, the speculator is allowed to renege. Rav maintains that this type of transaction is prohibited because the speculator does not face any risk of serious loss; the crop that is harvested is usually worth more than he pays. He effectively is advancing money to the owner of the orchard, which is Ribis. In the case of the goats, the condition is that even if the goats produce no milk at all on that day, the sale is valid. This makes the possibilities of gain and loss even, and thus the transaction is not considered Ribis.

The Ritva adds another difference between the two cases (although it is unclear whether he maintains that this second difference suffices by itself to distinguish between the two cases). The crops of the orchard are not yet present at the time the deal is made, and thus the advance payment looks more like a loan. In contrast, the milk of the goats is usually noticeable when the deal is made. (This seems to contradict the earlier reasoning of the Ritva, that the buyer faces the risk of not getting any milk, unless one assumes that there is milk which is not fit for human consumption due to other factors.) (Y. Montrose)

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