Hekdesh always has the upper hand

Shekalim (4:9) | Yisrael Bankier | 7 years ago

The Mishnah (4:9) taught that every thirty days, the price of nesachim – fine flour, wine and oil – would be determined for the suppliers of the Beit HaMikdash. The Mishnah continues that over the next month if the price increases, the supplier is obligated to maintain the (cheaper) agreed price. If however the market price deflates, the supplier would be forced to provide the goods at the lower price. In other words, despite the fact that the nesachim are supplied on a daily basis, the supplier is committed to the lower of the agreed price and daily market price. The Mishnah simply explains that this is because hekdesh always has the advantageous position.

The Bartenura explains that during the harvest, the gizbar (treasurer) would prepay the supplier. If the price inflated, since for hekdesh the acquisition occurs at the time the money is handed over, the supplies are considered the property of hekdesh at the earlier, cheaper, time. If however the price drops, then we provide the rational that hekdesh should be no worse than regular people. In other words, since regular transactions are only closed at the time the items of sale are handed over, if this was a regular transaction, the lower price would be paid. Consequently, hekdesh should be in no worse a position than hedyot (regular cases) and can pay the lower price.

The Tosfot R' Akiva Eiger however cites the Gemara in Kiddushin (29a) that teaches as follows. If someone paid for an item to purchase it from hekdesh but prior to taking the item the price increased, the agreed (lower) price is paid. The Gemara explains that one might think that we can apply the rationale that hekdesh should be no worse the hedyot and since the sale is not closed until the item is handed over, the higher price should be paid. The Gemara explains that this is not that case, since even in regular cases, once the money is handed over, retracting would incur a mi she'para (curse). Consequently, one need only pay hekdesh the original, lower price. That being the case, our Mishnah appears to be difficult. In our case, if the price goes down, despite the fact the money has been paid, we allow hekdesh to revert to the cheaper price, despite the fact that for hedyot, doing so would incur a mi she'para.

The Tosfot R' Akiva Eiger cites the Ran that explains that there is a difference between when hekdesh purchases/redeems a specific item and when the money is paid to a supplier. If there is a specific item, then since a mi she'para applies to hedyot, hekdesh would be committed to the original value. In our case however, since the specific items is not yet available, it is not a proper acquisition, so hekdesh can the retract as the price deflates.

The Tosfot R' Akiva Eiger however cites the Rambam that differentiates between when hekdesh is buying property and selling property. The Raavad cites our Mishnah as proof of this distinction. What is the basis for this distinction?

The Mishnat Chachamim cites the Rambam (Malve 9:5) that rules that a mi she'para only applies when the purchaser acted on his own behalf and wishes to retract after handing over the money. If however the money was handed over by a shaliach (agent) then a mi she'para would not apply since one can argue that he only sent the shaliach to act in his interest and not to his detriment. The shaliach should have stipulated to commit to the cheaper price.

With this in mind, the Mishnat Chachamim solves our problem. He explains that the gizbar simply operates as a shaliach for hekdesh (see Rambam Mechira 13). Consequently, if the price deflates, the gizbar is not committed the original price since he is acting a shaliach and a mi she'para would not apply. In the case in kidushin however, where one purchases something from hekdesh, retracting would invoke a mi she'para. Even though the gizbar acts a shaliach for hekdesh in this case too, the argument that the shaliach was sent to act in hekdesh's favour does not apply. This is because when redeeming an item from hekdesh one cannot stipulate to commit to a future lower price. The Mishnat Chachamim, cites the end of the sixth chapter of Erchin that rules that even though one knows that the price of an item to be redeemed will go up, when redeeming from hekdesh, we only consider the present value. (See the Mishnat Chachamim for the full and broader treatment of this idea.)


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