Commentary for Bava Metzia 133:16

עבד רב אשי עובדא ביתומים קטנים

Rabbah son of R. Huna said: Whenever one says, 'You and Nawla are relatives,' he [the vendor] relies upon it, and does not completely transfer it [the object of sale].<span class="x" onmousemove="('comment',' Hence the sale is conditional, and the field can always be redeemed. ');">¹⁶</span> Now, the land is [certainly] returnable; but what of the crops?<span class="x" onmousemove="('comment',' Raised after the sale. ');">¹⁷</span> Is it as direct usury, which can be legally reclaimed;<span class="x" onmousemove="('comment',' Since such a sale is really a loan (v. Mishnah on 65b), the crops which the purchaser enjoys are in the nature of direct interest. ');">¹⁸</span> or perhaps it is only indirect<span class="x" onmousemove="('comment',' V. supra, 61b. ');">¹⁹</span> usury, and cannot be reclaimed? — Rabbah b. Rab said: It stands to reason that it is considered indirect usury and cannot be reclaimed in court. And thus did Raba say, It is considered indirect usury and cannot be reclaimed in court. Abaye inquired of Rabbah: What of a mortgage?<span class="x" onmousemove="('comment',' If a field was mortgaged and no stipulation made about its crops, and the creditor took them. ');">²⁰</span> Is the reason there [in the previous case] that he made no stipulation? Then here too there was no stipulation!<span class="x" onmousemove="('comment',' Hence it is not returnable. ');">²¹</span> Or, perhaps, there it is a sale, but here a loan? — He replied: The reason there is that no stipulation was made; so here too there was no stipulation. R. papi said: Rabina gave a practical decision, calculated [the value of] the crops, and ordered it to be returned, thus disagreeing with Rabbah son of R. Huna. Mar,<span class="x" onmousemove="('comment',' Var. lec.: Raba. ');">²²</span> the son of R. Joseph, said in Raba's name: With reference to a mortgage: Where it is customary to make [the creditor] quit [whenever the loan is repaid],<span class="x" onmousemove="('comment',' And until then, he is in possession and enjoys its usufruct. ');">²³</span> if he took the usufruct to the amount of the loan, he must quit it;<span class="x" onmousemove="('comment',' I.e., if the debtor makes the claim, the usufruct is counted as repayment, and the creditor has no further title. ');">²⁴</span> but if in excess thereof, [the surplus] is not returnable;<span class="x" onmousemove="('comment',' Because it is not direct interest. ');">²⁵</span> nor is one loan<span class="x" onmousemove="('comment',' Lit., 'bond.' ');">²⁶</span> balanced against another.<span class="x" onmousemove="('comment',' I.e., if the debtor owes him more money on another bond, the excess cannot be deducted from it. ');">²⁷</span> But when it [the mortgaged estate] belongs to orphans, if he [the creditor] enjoyed its usufruct to the amount of the loan, he must quit it; if it [the usufruct] exceeded it, [the surplus] is returnable, and one loan is balanced against another. R. Ashi said: Now that you rule, If the usufruct exceeded the loan, [the balance] is not returnable; then even if it [merely] equalled it, he must not be dismissed without payment. Why? Because to dismiss him without payment is tantamount to making him return [what he has already had]; whereas it is only indirect interest, which is not reclaimable at law. R. Ashi gave a practical decision in reference to orphans [minors],

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