Interest with Non-Jews: Difference between revisions
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The Torah recognizes the time value of money and therefore permits charging a non-Jew interest for a loan. However, with respect to a fellow Jew the Torah demands that a person do a kindness and lend them for free.<ref>Ramban Devarim 23:21 writes that even though it is forbidden to steal from a non-Jew it is permitted to charge them interest for a loan since it is given willingly. Nonetheless, with one's fellow Jew it is forbidden to charge interest since that it is a kindness that the Torah demands us to do. This sentiment is echoed in Sefer Hachinuch (Mitzvah 573). See Ralbag (Toaliyot Vayikra 25:35) who writes that the Torah forbids taking interest because it wants us to stay away from the negative drive of lusting money. In trying to amass wealth a person is tempted to use any ruse possible and to prevent this the Torah forbids a person from taking interest.</ref> Therefore, the Torah<ref>Vayikra 25:36-37</ref> forbids a Jew from taking or paying interest to another Jew, but it is permitted to take interest or pay interest to a non-Jew. | |||
==Interest with a Non-Jew== | |||
==Non- | |||
# It is permitted to lend to and borrow from non-Jews with interest.<ref>The Gemara Bava Metsia 70b states that it is permitted to charge non-Jews ribbit and there is only a rabbinic prohibition to do so. The reason the rabbis forbade it is that they didn’t want people to learn from the non-Jews by interacting with them too much. They only permitted it for a talmid chacham or someone who needs to make money to survive. This is codified by the Rambam and Rif. However, Tosfot 70b s.v. tashich writes that today we lend with interest to non-Jews for three reasons: 1) we follow the opinion that there’s no rabbinic prohibition to lend to non-Jews at all. 2) Due to the high taxes we have to charge non-Jews interest otherwise financially wouldn’t survive and it is considered necessary for our livelihood. 3) Really based on the reason of the prohibition it is prohibited to do any business with non-Jews and if we didn’t do that we wouldn’t survive. Meiri b”m 70b agrees with reason two. Tur YD 159:1 cites the last reason of Tosfot. Shulchan Aruch and Rama Y.D. 159:1 simply writes that nowadays it is permitted to lend non-Jews with interest.</ref> | #It is permitted to lend to and borrow from non-Jews with interest.<ref>The Gemara Bava Metsia 70b states that it is permitted to charge non-Jews ribbit and there is only a rabbinic prohibition to do so. The reason the rabbis forbade it is that they didn’t want people to learn from the non-Jews by interacting with them too much. They only permitted it for a talmid chacham or someone who needs to make money to survive. This is codified by the Rambam and Rif. However, Tosfot 70b s.v. tashich writes that today we lend with interest to non-Jews for three reasons: 1) we follow the opinion that there’s no rabbinic prohibition to lend to non-Jews at all. 2) Due to the high taxes we have to charge non-Jews interest otherwise financially wouldn’t survive and it is considered necessary for our livelihood. 3) Really based on the reason of the prohibition it is prohibited to do any business with non-Jews and if we didn’t do that we wouldn’t survive. Meiri b”m 70b agrees with reason two. Tur YD 159:1 cites the last reason of Tosfot. Shulchan Aruch and Rama Y.D. 159:1 simply writes that nowadays it is permitted to lend non-Jews with interest.</ref> | ||
#Nowadays in Israel it is forbidden to lend non-Jews money with interest since it is possible to do business with Jews exclusively. Yet it would be permitted in order to make a livelihood but not to make oneself wealthy.<ref>Netivot Shalom YD 159:1:16 writes that today in Israel since it is possible to do without lending non-Jews with interest it is unclear if it is permitted to do so nowadays. Additionally, Rav Moshe Halevi in Malveh Hashem 5:3 writes that Jews who live in Israel should be strict not to lend non-Jews with interest since it is possible to transact with Jews and be financially stable. He explains that none of the reasons of Tosfot apply today except that perhaps we don't hold that there's any prohibition which is rejected. Similarly, Rav Shlomo Mazuz in Kerem Shlomo 159:8 is strict. Rav Ovadia Yosef in Halichot Olam v. 8 p. | #Nowadays in Israel it is forbidden to lend non-Jews money with interest since it is possible to do business with Jews exclusively. Yet it would be permitted in order to make a livelihood but not to make oneself wealthy.<ref>Netivot Shalom YD 159:1:16 writes that today in Israel since it is possible to do without lending non-Jews with interest it is unclear if it is permitted to do so nowadays. Additionally, Rav Moshe Halevi in Malveh Hashem 5:3 writes that Jews who live in Israel should be strict not to lend non-Jews with interest since it is possible to transact with Jews and be financially stable. He explains that none of the reasons of Tosfot apply today except that perhaps we don't hold that there's any prohibition which is rejected. Similarly, Rav Shlomo Mazuz in Kerem Shlomo 159:8 is strict. Rav Ovadia Yosef in Halichot Olam v. 8 p. 4-7 writes that we hold that as long as it is difficult to do business only to Jews it is permitted in accordance with Tosfot, however, we do not hold that once the gezerah stopped applying it is nullified completely.</ref> Some poskim are lenient even in Israel.<ref>Chut Shani 2:1 p. 39 writes that even nowadays it is permitted to lend a non-Jew with interest even though in Israel we can support ourselves without business to non-Jews. Since there is some business with non-Jews and non-religious Jews the leniencies are still relevant. Chelkat Binyamin 159:10 (written in America) is lenient in all cases. Rav Asher Afello (Asher Chanan 8:46) argues with Malveh Hashem and permits taking interest from non-Jews today in Israel. His reasons are that there are many non-Jews in Israel and many non-religious Jews and it is impossible to avoid business with them. He says that even the minority of people who don't need to do business with non-Jews are nullified by the majority of people. Also, taxes are very high in Israel so it is always considered b'kdey chayav. </ref> | ||
# Even outside Israel one should be strict if one can.<ref>Chachmat Adam 130:6 writes that any honest man who could avoid taking interest from non-Jews should do so.</ref> Some say that for an impersonal bank it is permitted since one hardly interacts with the non-Jews.<ref> Chelkat Binyamin 159:1 s.v. vhaidna writes that one doesn’t have to be strict for the Chachmat Adam if one is lending to a bank and one only has to interact with them minimally.</ref> | #Even outside Israel one should be strict if one can.<ref>Chachmat Adam 130:6 writes that any honest man who could avoid taking interest from non-Jews should do so.</ref> Some say that for an impersonal bank it is permitted since one hardly interacts with the non-Jews.<ref>Chelkat Binyamin 159:1 s.v. vhaidna writes that one doesn’t have to be strict for the Chachmat Adam if one is lending to a bank and one only has to interact with them minimally.</ref> | ||
#It is permitted to borrow with interest from non-Jews.<ref>Rambam Malveh Vloveh 5:2 explains that they never prohibited it lest one come to learn from their ways since it is normal for a borrower to avoid the lender and not learn from him. Meiri b”m 70b agrees. Chazon Ovadia Shabbat v. 1 p. 7 and Malveh Hashem 5:5 codify this as the halacha.</ref> | #It is permitted to borrow with interest from non-Jews.<ref>Rambam Malveh Vloveh 5:2 explains that they never prohibited it lest one come to learn from their ways since it is normal for a borrower to avoid the lender and not learn from him. Meiri b”m 70b agrees. Chazon Ovadia Shabbat v. 1 p. 7 and Malveh Hashem 5:5 codify this as the halacha.</ref> | ||
==Interest with a Convert== | |||
# If a Jew borrowed from a non-Jew with interest and then the non-Jew converted the convert may not collect the interest from the Jew even if it accrued before he converted unless it was already established as a loan. That is, if it was already due or prematurely they agreed that the borrower will owe the capital and interest then it is viewed as a complete interest free loan from that time forward.<ref>Shulchan Aruch Y.D. 171:1</ref> | |||
# If a non-Jew borrowed from a Jew with interest and then converts the convert has to pay for the interest of the loan that accrued before he converted.<ref>Shulchan Aruch Y.D. 171:1</ref> | |||
==Interest with a Non-Religious Jew== | |||
#It is permitted to lend to a [[non-religious Jew]] with interest if he was brought up religious and later became non-religious.<ref>Shulchan Aruch Y.D. 159:2. Bet Yosef quotes this ruling from Nemukei Yosef, Rabbenu Tam, Ramban, Tan, Baal Hatrumot, Rabbenu Elchanan, Tosfot, Hagahmot Maimoniyot, Tur, and Rosh. However, Rashi and Rabbenu Shmuel disagreed and held it was forbidden to take interest from a non-religious Jew who worships avoda zara. The reasons for why it is permitted to take interest are: | |||
(1) Rabbenu Tam explained דקי"ל דמומרין לע"ז היו מורידין ולא מעליו וכיון גופו כן ממונו לא כל שכן. | |||
(2) Ramban explains that since they are not religious they aren't considered a religious Jew's brother and the Torah specifies that one may not take interest from one's brother.</ref> Initially this should be avoided.<ref>Rama 159:2</ref> However, it is forbidden to borrow from a non-religious Jew with interest.<ref>Shulchan Aruch Y.D. 159:2</ref> | |||
#One may not lend a non-religious Jew who is raised as a non-religious Jew with interest.<ref>Shulchan Aruch and Rama 159:3 forbid lending with ribbit to someone who is a tinok shenishba. Gemara Shabbat 68b clarifies that a child who was captive among non-Jews (tinok shenishba) and didn't know about Shabbat is considered as though he sinned unintentionally. Brit Yehuda 30:12 agree. Rambam Mamrim 3:3 writes that the sons of the karaites who were brought up with the mistakes of their parents aren't considered minim but should be returned in teshuva. (Yet, see the manuscript editions which include another few words that alter the meaning of the Rambam.) Pirush Mishnayot Chullin 1:2 writes that someone who reject tenants of our faith are considered minim. However, someone who was born into a family and background with such thoughts aren't culpable and are similar to a tinok shenishba. Binyan Tzion Chadashot 23 posits that many of the non-religious Jews today are considered tinok shenishba since they're following the ways of their fathers. | |||
# One may not lend a non-religious Jew who is raised as a non-religious Jew with interest.< | |||
* Chazon Ish YD 1:6 writes that once we try to teach him about the Orthodox ways and he turns it down he is considered to be a mumar. The amount of effort necessary to spend in trying to teach him is subjective and is left up to the judgement of the rabbis of each generation. Additionally, once he is aware of the Orthodox Jews and practices even without trying to teach him he can be considered a mumar. However, that too depends on how aware he was of the Orthodox Jews and to what degree and with what intensity his parents taught his otherwise. This is the basis for the dispute whether Karaites are mumarim. </ref> This applies to conservative and reform Jews today.<ref>Igrot Moshe 4:91:6, Chelkat Binyamin 159:22</ref> | *Chazon Ish YD 1:6 writes that once we try to teach him about the Orthodox ways and he turns it down he is considered to be a mumar. The amount of effort necessary to spend in trying to teach him is subjective and is left up to the judgement of the rabbis of each generation. Additionally, once he is aware of the Orthodox Jews and practices even without trying to teach him he can be considered a mumar. However, that too depends on how aware he was of the Orthodox Jews and to what degree and with what intensity his parents taught his otherwise. This is the basis for the dispute whether Karaites are mumarim. | ||
# Some say that it is permitted to lend the Karaites with interest.<ref>Shulchan Aruch 159:3. Bet Yosef 159:3 cites the Pirush Mishnayot Chullin 1:2 where the Rambam says that karaites are like tinok shenishba and it is forbidden to lend them with interest. Bet Yosef points out that the Nemukei Yosef 42b quotes the Ri who says that anyone who once recognized Orthodox Jews isn’t a tinok shenishba disagrees with this Rambam. Shulchan Aruch follows the Rambam. However, the Shach 159:6 cites the Maharshal, Maharnach 113, Rash quoted by Mabit 1:38, Rav Betzalel 3 who are strict. Nekudat Hakesef he writes that the halacha on this matter is unresolved. Chelkat Binyamin 159:21 concludes with the Graz who is strict.</ref> | *Radvaz (cited by Pitchei Teshuva 159:7) writes that if there is a doubt if someone is a non-Jew or a non-religious Jew it is permitted to lend them with interest.</ref> This applies to conservative and reform Jews today.<ref>Igrot Moshe 4:91:6, Chelkat Binyamin 159:22</ref> | ||
#Some say that it is permitted to lend the Karaites with interest.<ref>Shulchan Aruch Y.D. 159:3. Bet Yosef 159:3 cites the Pirush Mishnayot Chullin 1:2 where the Rambam says that karaites are like tinok shenishba and it is forbidden to lend them with interest. Bet Yosef points out that the Nemukei Yosef 42b quotes the Ri who says that anyone who once recognized Orthodox Jews isn’t a tinok shenishba disagrees with this Rambam. Shulchan Aruch follows the Rambam. However, the Shach 159:6 cites the Maharshal, Maharnach 113, Rash quoted by Mabit 1:38, and Radvaz (in Teshuvot Rav Betzalel Ashkenazi 3) who are strict. Nekudat Hakesef he writes that the halacha on this matter is unresolved. Chelkat Binyamin 159:21 concludes with the Graz who is strict.</ref> | |||
==Arrangements of Loans Between Several Parties== | ==Arrangements of Loans Between Several Parties== | ||
===Lending A Non-Jew's Money to A Jew with Interest=== | ===Lending A Non-Jew's Money to A Jew with Interest=== | ||
# If a person borrowed money from a non-Jew with interest it is forbidden to then lend that money to another Jew with interest.<ref>Shulchan Aruch Y.D. 168:1</ref> | [[Image:Jew Transferring Non-Jew's Loan 168-1.jpg|right|350px]] | ||
# If a person borrowed money from a non-Jew with interest and then before he returns it another Jew wants that loan and is willing to pay the interest to the non-Jewish lender, one may only give that loan to the second Jew under one of two methods. Both of these methods free the first Jew from any financial relationship with the second Jew: | #If a person borrowed money from a non-Jew with interest it is forbidden to then lend that money to another Jew with interest.<ref>Shulchan Aruch Y.D. 168:1</ref> | ||
## The non-Jew tells the first Jew to leave the money in a certain location and he will be exempt<ref>Although Shulchan Aruch 168:3 hold that it is sufficient for the non-Jew to state that you can leave the money in a certain location for the second Jew and it is understood that he is exempt from the loan obligation, Shach 168:7, Taz 168:3, and Gra 168:6 all hold that it is necessary to state so explicitly.</ref> and then the second Jew takes it from there.<ref>Shulchan Aruch Y.D. 168:3</ref> | #If a person borrowed money from a non-Jew with interest and then before he returns it another Jew wants that loan and is willing to pay the interest to the non-Jewish lender, one may only give that loan to the second Jew under one of two methods. Both of these methods free the first Jew from any financial relationship with the second Jew: | ||
## The first Jew returns the money to the non-Jew and he then gives it to the second Jew. No words need to be spoken since it is understood that when the non-Jew took the money from the first Jew he was exempting him from his loan.<ref>Shulchan Aruch Y.D. 168:2</ref> | ##The non-Jew tells the first Jew to leave the money in a certain location and he will be exempt<ref>Although Shulchan Aruch 168:3 hold that it is sufficient for the non-Jew to state that you can leave the money in a certain location for the second Jew and it is understood that he is exempt from the loan obligation, Shach 168:7, Taz 168:3, and Gra 168:6 all hold that it is necessary to state so explicitly.</ref> and then the second Jew takes it from there.<ref>Shulchan Aruch Y.D. 168:3</ref> | ||
## It isn't a solution for the non-Jew to simply tell the first Jew to hand the money over to the second Jew and he'll be exempt since that appears as though the two Jews lent money with interest.<ref>Shulchan Aruch Y.D. 168:1</ref> | ##The first Jew returns the money to the non-Jew and he then gives it to the second Jew. No words need to be spoken since it is understood that when the non-Jew took the money from the first Jew he was exempting him from his loan.<ref>Shulchan Aruch Y.D. 168:2</ref> | ||
##It isn't a solution for the non-Jew to simply tell the first Jew to hand the money over to the second Jew and he'll be exempt since that appears as though the two Jews lent money with interest.<ref>Shulchan Aruch Y.D. 168:1</ref> | |||
===Lending with Interest with a Non-Jewish Agent=== | ===Lending with Interest with a Non-Jewish Agent=== | ||
# A non-Jew who borrowed from a Jew and is ready to return the money, if he finds another Jew to borrow that money with interest can give it to him with interest. However, if the non-Jew brought the money to the lender Jew he can't lend it to another Jew since that considered a loan between the lender and the other Jew with interest. Obviously this is forbidden if the non-Jew actually gave the money back to the lender that the lender may not lend that money to a Jew with interest. Additionally it is forbidden if the non-Jew put the money on the ground for the other Jew to pick up and the lender stated that the non-Jew would be exempt once he placed the money on the ground. These are all considered | [[Image:Non-Jew Transferring Jew's Loan 168-6.jpg|350px|right]] | ||
# It is forbidden for a Jew to arrange with a non-Jew to lend your money to him in order that he lend it to another Jew with interest.<ref>Rashba teshuva 3:243 writes that it is forbidden to lend your money to him in order that he lend it to another Jew with interest since that is a mere legal fiction and is considered taking interest. Also, there is a concept of shelichut for a non-Jew to be considered a shelichut for purposes of being strict. That is, the rabbis view this transaction as though the non-Jew is an agent of the Jews and it is a loan between two Jews. Shulchan Aruch Y.D. 168:5 rule like the Rashba. The Shach 168:10 points out that the Rama would agree as well. Malveh Hashem 1:5:12 agrees. However, the Netivot Shalom 168:5:5 argues at length that the Rama never accepted this approach of the Rashba who expanded the concept of legal fictions for ribbit. The entire concept of Rabbenu Tam who allowed having a non-Jewish agent to arrange the loan with interest or Rashi's opinion who allowed a Jewish agent to arrange the loan with interest, both of which are cited by the Rama indicate that he was not concerned with the expansions of the Rashba. This is further supported by the fact that the Rama 168:5 implies that the reason for Shulchan Aruch is completely other than the reason of making a legal fiction out of taking interest. Netivot Shalom brings sources that show that there's a fundamental dispute of how far reaching is prohibition of using legal loopholes in interest (haramat ribbit) between the Maharam and Rashba. Netivot Shalom 166:6:13 extends this discussion to that of using a heter iska and the Gra's opinion that it violates haramat ribbit.</ref> After the fact it is forbidden to take the interest since the non-Jewish agent is merely a ruse and it was really a loan with interest from a Jew.<ref>Netivot Shalom 168:5:6 explains that the haramat ribbit that the Rashba was discussing was because the real intention of the parties was to create a loan between the two Jews and so it is completely ribbit, which is forbidden even after the fact. However, the Malveh Hashem 1:5:12 writes that this haramat ribit of the Rashba is purely legal fiction that is valid, though it is forbidden to arrange. Therefore, if it was already collected certainly it doesn't need to be returned.</ref> | [[Image:Jew Borrowing from Jew through Non-Jew 168-5.jpg|350px|right]] | ||
#If the lender didn't know about the fact that the borrower appointed the non-Jew to borrow for him from a Jew with interest he can keep the interest<ref>Shulchan Aruch Y.D. 168:7</ref> and some allow him to even collect the interest once it was arranged.<ref> | #A non-Jew who borrowed from a Jew and is ready to return the money, if he finds another Jew to borrow that money with interest can give it to him with interest. However, if the non-Jew brought the money to the lender Jew he can't lend it to another Jew since that considered a loan between the lender and the other Jew with interest. Obviously this is forbidden if the non-Jew actually gave the money back to the lender that the lender may not lend that money to a Jew with interest. Additionally it is forbidden if the non-Jew put the money on the ground for the other Jew to pick up and the lender stated that the non-Jew would be exempt once he placed the money on the ground. These are all considered biblical interest.<ref>Gemara Bava Metsia 71b, Shulchan Aruch Y.D. 168:6</ref> However, if the non-Jew simply hands the money to the borrower Jew in the presence of the lender Jew, most rishonim hold that this is rabbinically forbidden since the non-Jew is an agent of the borrower. However, there is a minority opinion in the rishonim who allows this.<ref>Rashi Bava Metsia 71b s.v. v'im explains that the conclusion of the Gemara was that there is a concept of agency for two Jews to create a loan between them with interest. This is rabbinically forbidden. This is the opinion of the Rif, Ramban, Rashba, Ran, and Nemukei Yosef all cited by the Bet Yosef 168:6. The Rambam Malveh Vloveh 5:4 however holds it is biblically forbidden. On the other hand, Rabbenu Tam held that the gemara backed out of that stringency and so it is permitted. Rosh responsa 108:11 ponders how someone could possibly rule like Rabbenu Tam when it seems that it is forbidden and Rabbenu Tam brought no proofs. Either way, there the Rosh rejects following Rabbenu Tam initially. He is aware of the practice of some people to follow Rabbenu Tam but he argues that it is incorrect and the lender could only accept the interest if he is unaware that the non-Jew is borrowing the money for the other Jew.</ref> The halacha is not to accept this minority opinion.<ref>Shulchan Aruch Y.D. 168:6 completely rejects Rabbenu Tam's opinion. Rama 168:5 and 7 cites Rabbenu Tam however he says that one should only follow that opinion where there is a minhag. Chelkat Binyamin 168:51 writes that we don't follow the Rabbenu Tam since it is a question of biblical interest.</ref> | ||
* Derisha 168:4 explains that it is absolutely forbidden for the lender to make the borrower pay the interest since it is forbidden for the borrower to pay it, however, it already happened then the lender can keep it. | #It is forbidden for a Jew to arrange with a non-Jew to lend your money to him in order that he lend it to another Jew with interest.<ref>Rashba teshuva 3:243 writes that it is forbidden to lend your money to him in order that he lend it to another Jew with interest since that is a mere legal fiction and is considered taking interest. Also, there is a concept of shelichut for a non-Jew to be considered a shelichut for purposes of being strict. That is, the rabbis view this transaction as though the non-Jew is an agent of the Jews and it is a loan between two Jews. Shulchan Aruch Y.D. 168:5 rule like the Rashba. The Shach 168:10 points out that the Rama would agree as well. Malveh Hashem 1:5:12 agrees. However, the Netivot Shalom 168:5:5 argues at length that the Rama never accepted this approach of the Rashba who expanded the concept of legal fictions for ribbit. The entire concept of Rabbenu Tam who allowed having a non-Jewish agent to arrange the loan with interest or Rashi's opinion who allowed a Jewish agent to arrange the loan with interest, both of which are cited by the Rama indicate that he was not concerned with the expansions of the Rashba. This is further supported by the fact that the Rama 168:5 implies that the reason for Shulchan Aruch is completely other than the reason of making a legal fiction out of taking interest. Netivot Shalom brings sources that show that there's a fundamental dispute of how far reaching is prohibition of using legal loopholes in interest (haramat ribbit) between the Maharam and Rashba. Netivot Shalom 166:6:13 extends this discussion to that of using a heter iska and the Gra's opinion that it violates haramat ribbit.</ref> After the fact it is forbidden to take the interest since the non-Jewish agent is merely a ruse and it was really a loan with interest from a Jew.<ref>Netivot Shalom 168:5:6 explains that the haramat ribbit that the Rashba was discussing was because the real intention of the parties was to create a loan between the two Jews and so it is completely ribbit, which is forbidden even after the fact. However, the Malveh Hashem 1:5:12 writes that this haramat ribit of the Rashba is purely legal fiction that is valid, though it is forbidden to arrange. Therefore, if it was already collected certainly it doesn't need to be returned.</ref> | ||
* Shach 168:17 argues that it is permitted for the lender to make the borrower pay the interest since it was done without his knowledge and in such a case it isn't really forbidden for the borrower with respect to the lender. Chelkat Binyamin 168:55 and 57 rules like the Shach and explains that once the lender wasn't aware of the appointment of the non-Jew by the borrower it isn't forbidden for the borrower to pay the interest. The only aspect that was forbidden is the arrangement of the loan. | #If the lender didn't know about the fact that the borrower appointed the non-Jew to borrow for him from a Jew with interest he can keep the interest<ref>Shulchan Aruch Y.D. 168:7</ref> and some allow him to even collect the interest once it was arranged.<ref>*Derisha 168:4 explains that it is absolutely forbidden for the lender to make the borrower pay the interest since it is forbidden for the borrower to pay it, however, it already happened then the lender can keep it. | ||
* Netivot Shalom 168:7:6 writes that the Teshuvat Ri doesn't imply like the Derisha at all. Netivot Shalom 168:7:6 reads the Bet Yosef in accordance with the Derisha. However, the Chelkat Binyamin (168 Tziyunim 136) argues that the Bet Yosef held like the Shach.</ref> Sephardim are more strict and only allow this completely after the fact that the interest was collected.<ref>Horah Brurah 168:31. There he mentions the idea that the Bet Yosef suggests which is if the lender doesn't know from witnesses that the borrower appointed the non-Jew to be his agent and the borrower himself since he didn't appoint the non-Jew then the lender could collect the interest. Horah Brurah concludes that one may only rely upon this after the fact.</ref> | *Shach 168:17 argues that it is permitted for the lender to make the borrower pay the interest since it was done without his knowledge and in such a case it isn't really forbidden for the borrower with respect to the lender. Chelkat Binyamin 168:55 and 57 rules like the Shach and explains that once the lender wasn't aware of the appointment of the non-Jew by the borrower it isn't forbidden for the borrower to pay the interest. The only aspect that was forbidden is the arrangement of the loan. | ||
# If a Jew told a non-Jew to borrow for him from another non-Jew with interest and he went and borrowed from a Jew with interest the borrower can even pay the interest.<ref>Mordechai b"m 337, Shulchan Aruch Y.D. 168:8. Shach 168:19 and Taz 168:9 argue that just like the lender can collect the interest the borrower can pay it. However, it appears from the Bet Yosef that only the lender can collect it but it is forbidden for the lender to collect it. Horah Brurah 168:34 follows the Shach and Taz that if the non-Jew didn't follow the orders of the borrower it is then permitted for both the lender and borrower to exchange the interest at the end.</ref> | *Netivot Shalom 168:7:6 writes that the Teshuvat Ri doesn't imply like the Derisha at all. Netivot Shalom 168:7:6 reads the Bet Yosef in accordance with the Derisha. However, the Chelkat Binyamin (168 Tziyunim 136) argues that the Bet Yosef held like the Shach.</ref> Sephardim are more strict and only allow this completely after the fact that the interest was collected.<ref>Horah Brurah 168:31. There he mentions the idea that the Bet Yosef suggests which is if the lender doesn't know from witnesses that the borrower appointed the non-Jew to be his agent and the borrower himself since he didn't appoint the non-Jew then the lender could collect the interest. Horah Brurah concludes that one may only rely upon this after the fact.</ref> | ||
#If a Jew told a non-Jew to borrow for him from another non-Jew with interest and he went and borrowed from a Jew with interest the borrower can even pay the interest.<ref>Mordechai b"m 337, Shulchan Aruch Y.D. 168:8. Shach 168:19 and Taz 168:9 argue that just like the lender can collect the interest the borrower can pay it. However, it appears from the Bet Yosef that only the lender can collect it but it is forbidden for the lender to collect it. Horah Brurah 168:34 and Chelkat Binyamin 168:61 follows the Shach and Taz that if the non-Jew didn't follow the orders of the borrower it is then permitted for both the lender and borrower to exchange the interest at the end.</ref> | |||
===Non-Jew borrowing with Interest from a Jew through a Jewish Agent=== | ===Non-Jew borrowing with Interest from a Jew through a Jewish Agent=== | ||
===Lending with Interest from a Non- | #If a non-Jew asks a Jew to borrow for him from another Jew with interest the Jewish agent may do his job as long as he says clearly that he is borrowing with interest on behalf of a non-Jew or the transaction is happening in the presence of the non-Jew.<ref>Ran b"m 71b s.v. mahu, Nemukei Yosef 42a, Hagaot Ashri 5:42, Rosh responsa 108:5, Raavan 103, and Smak 260 all cited by Bet Yosef 168:13. Baal Hatrumot 46:4:10 citing Ramban b"m 71b s.v. vgoy explains that even though the Jewish agent can't halachically become the agent of the non-Jew since there's no agency for non-Jews, the Jewish agent can be the agent of the lender.</ref> | ||
#The agent can't take upon himself responsibility for the capital or the interest. If he takes upon himself responsibility for either one that is considered as though the agent is a borrower and there is interest when the lender takes interest from the borrower.<ref>Shulchan Aruch 168:13. Bet Yosef 168:13 s.v. vda deliberates whether it is problematic to accept responsibility for the capital and not the interest or the interest and not the capital. Ultimately he says that the Tur clearly understood that the Jewish agent may not accept responsibility for either. </ref> According to Ashkenazim it is only necessary for the Jewish lender to accept responsibility for the loan and collateral after the transaction began, which is the time when the money for the loan was transferred to the agent but not from the time that the collateral was picked up to be delivered to the lender.<ref>Darkei Moshe 168:12 clearly thinks that it is unnecessary for the lender to accept responsibility from the time of the collection of the collateral in order to be delivered since the loan didn't begin. Though he agrees that he should accept responsibility from the time that the agent accepted the money in order to return it to the non-Jewish borrower. Shach 168:37 and Taz 168:18 agree with the Darkei Moshe against the Bet Yosef.</ref> | |||
#The agent can't take upon himself responsibility for the collateral getting lost or stolen, rather the lender needs to take such responsibility. If he takes upon the regular type of responsibility as a [[shomer]] would generally take that is permitted. However, he may not take responsibility for unexpected circumstances.<ref>Shulchan Aruch Y.D. 168:16 based on the Rosh in disagreement with the Ramah who allowed taking even responsibility for unexpected events. </ref> If they didn't specify this responsibility and it was left unclear, after the fact, we can assume that the Jewish lender and the agent would want to arrange it in the permitted fashion.<ref>Shach 168:36 citing Bach, Baal Hatrumot 46:4:10 citing Ramban</ref> | |||
#If the non-Jew never comes to pay the loan with the interest the agent may not pay it.<ref>Shulchan Aruch Y.D. 168:14</ref> | |||
##Additionally, the lender may not force the agent to buy the collateral for the price of the capital and interest.<ref>Rama 168:14, Shach 168:47, Taz 168:20, Bach 168:15, Chelkat Binyamin 168:148. According to the Taz this is even the opinion of Shulchan Aruch, but according to the Shach and Bach this is only the opinion of the Rama and Shulchan Aruch would disagree.</ref> | |||
##However, if the agent wants to buy the collateral for the capital and interest he can do so.<ref>Rama 168:14, Shach 168:47, Taz 168:20, Bach 168:15</ref> | |||
#If the non-Jew never comes to pay the loan the lender can sell the collateral and keep the value. The agent can't stop the lender from doing so out of fear of the non-Jew since the lender isn't really incumbent to the agent or the non-Jew.<ref>Shulchan Aruch Y.D. 168:15, Rosh responsa 108:6</ref> Some say that if the agent was originally appointed by the lender to do this loan with the non-Jew, then if the agent is afraid of the ramifications of the lender selling the collateral, then the lender must listen and if he doesn't then he must pay for damages to the agent.<ref>Levush 168:15, Shach 168:50, Chelkat Binyamin 168:156. The explanation of the Levush is that essentially since the agent isn't a borrower he can tell the lender to do or not do something and that poses no issue. The lender should be cautious of the damages that can occur to the agent, however, if the agent arranged with the non-Jew and not the lender, then the lender doesn't have to be concerned. It is the responsibility of the agent. If the agent was originated commissioned by the Jewish lender then it is a concern for the lender that he doesn't cause a damage to the agent. The Taz 168:20 and Bet Meir disagree with the Levush. They hold that the lender doesn't have to listen to the agent in any event. They explain that the source for this halacha is the Rosh and he held that the borrower shouldn't take any responsibility for the collateral and yet he writes that he doesn't need to listen to the agent. Shach in Nekudat Hakesef 168:14 answers that these are two separate statements of the Rosh. The Bet Meir doesn't understand the Shach since the Rosh either way would discuss a permissible case according to his opinion.</ref> | |||
===Lending with Interest from a Non-Jew with a Jewish Agent using a Security Deposit=== | |||
[[Image:Taking Mashkon from Non-Jew.png|300px|right]] | [[Image:Taking Mashkon from Non-Jew.png|300px|right]] | ||
[[Image:Returning Mashkon to Non-Jew.png| 350px| right]] | [[Image:Returning Mashkon to Non-Jew.png| 350px| right]] | ||
# Some permit borrowing from a non-Jew with a security deposit so that they can in turn borrow with interest from another Jew with that security deposit. This is permitted since the non-Jew takes responsibility for the original loan and it is treated as two loans and not one. Ashkenazim can rely on this opinion.<ref>Ri cited by Rosh b"m 5:55, Rosh responsa 108:11, Rama 168:8 seems to support this approach. Darkei Moshe 168:4 quotes the Mordechai and Hagahot Ashri who held that it is permitted even initially. Darkei Moshe 168:9 cites the Kol Bo 84 and Hagahot Maimoniyot Malveh 5:3 who says that the minhag was like the Ri</ref> Others hold that generally this is forbidden to arrange but if one explicitly tells the non-Jew that he has responsibility for the loan then it is permitted.<ref>Ramban b"m 71b s.v. vbar cited by Tur 168:9, Rashba 7:321, Nemukei Yosef 42a, Talmidei Harashba, and Baal Hatrumot 46:4:10 s.v. vkatav alav haramban cited by Bet Yosef 168:9</ref> | |||
#Some permit borrowing from a non-Jew with a security deposit so that they can in turn borrow with interest from another Jew with that security deposit. This is permitted since the non-Jew takes responsibility for the original loan and it is treated as two loans and not one. Ashkenazim can rely on this opinion.<ref>Ri cited by Rosh b"m 5:55, Rosh responsa 108:11, Rama 168:8 seems to support this approach. Darkei Moshe 168:4 quotes the Mordechai and Hagahot Ashri who held that it is permitted even initially. Darkei Moshe 168:9 cites the Kol Bo 84 and Hagahot Maimoniyot Malveh 5:3 who says that the minhag was like the Ri</ref> Others hold that generally this is forbidden to arrange but if one explicitly tells the non-Jew that he has responsibility for the loan then it is permitted.<ref>Ramban b"m 71b s.v. vbar cited by Tur 168:9, Rashba 7:321, Nemukei Yosef 42a, Talmidei Harashba, and Baal Hatrumot 46:4:10 s.v. vkatav alav haramban cited by Bet Yosef 168:9</ref> The Jewish borrower must make sure that the security deposit that he gave to the non-Jew was given completely such that the non-Jew could acquire it with a proper [[kinyan]].<ref>Shach 168:20 writes that one needs to make sure that the non-Jew acquired the collateral with a kinyan such as meshicha, pulling it. Chelkat Binyamin 168:63 and 65 explains that there's two approaches for the case of a Jew who borrowed from a non-Jew who in turn borrows from a Jew when there's a collateral. The Gra and Levush say that the collateral doesn't add or detract anything, it all depends on whether the non-Jew was an agent of the original Jew in which case it is forbidden and if not it is permitted. The Shach, Taz, and Chavot Daat 168:12 however, hold that the collateral of the Jew can serve as a Arev Kablan, guarantor for the non-Jew from the original Jew and that is a problem. Another words, since the original Jew's property is held responsible for the interest loan of a non-Jew to the second Jew, it is as though the original Jew is the guarantor of that interest loan. In Shulchan Aruch Y.D. 170:2 it is codified that a Jew may not be a guarantor of a non-Jew's interest loan from a Jew. Therefore, the way to solve that issue is by having the original Jew completely allow the non-Jew to acquire the collateral and his transactions with it afterwards are separate from him. (See Talmidei Harashba cited by Bet Yosef 168:9 who is unconcerned for the collateral being a guarantor since it is considered a Arev Stam.)</ref> | |||
## When the non-Jew who lent to a Jew and now comes to borrow from the Jew should borrow in his own name. If he borrows in the name of the first Jew that is certainly interest and is forbidden.<ref>Chelkat Binyamin 168:65 and 53 based on Shach 168:34, Chavot Daat 168:10, and Shulchan Aruch Y.D. 168:21. In the rishonim this can be substantiated by Rosh 108:11 and Nemukei Yosef 42a. </ref> | |||
# | #Even according to the strict opinion, a lender to a non-Jew with interest who collected a deposit from him which came originally from a Jew can collect the interest as long as he isn't certain that it was arranged improperly.<ref>Ri, Rosh, Shulchan Aruch 168:9. Chelkat Binyamin 168:63 explains that essentially there's two schools of thought regarding a loan with a security deposit from one Jew to another Jew with a non-Jew in between. The Gra and Levush understand that this depends on whether one may set up a non-Jew agent between two Jews who are transacting with interest. The Shach, Taz 168:14, and Chavot Daat 168:12, on the other hand, think that the security deposit poses its own problem in that it functionally creates a lien of the Jewish lender upon the original borrower Jew. This could be solved if the non-Jew acquired the deposit from the non-Jew in an absolute fashion.</ref> Some say that he may not collect the interest if he knew that it was a Jewish security deposit such as if it is a Jewish article of clothing.<ref>Tur 189:9, Shulchan Aruch 168:9. Bet Yosef 168:9 s.v. yisrael shnatan notes that the Mordechai 338 held within the opinion of Rabbenu Tam that it doesn't matter whether the deposit was clearly Jewish or not.</ref> | ||
#If the original Jew wants to get his security deposit back from the other Jew who lent to the non-Jew and the non-Jew isn't cooperating, the lender Jew doesn't need to work with the borrower Jew since they didn't have any transaction one to another.<ref>Rosh responsa 108:8, Rama 168:9</ref> | |||
#If a Jew has a security deposit of a non-Jew in his hands and the non-Jew directs him to use it to borrow from another Jew with interest on his behalf, the first Jew may do so.<ref>Mordechai 337 writes that a Jew can use a non-Jew's security deposit to borrow from a Jew with interest if he is instructed so by the non-Jew. The Mordechai seems to apply this even to the case where the Jew didn't have the non-Jew's deposit but instead wanted to gift him a deposit of his own for its value. The Bet Yosef is troubled by this leniency since there's no mechanism by which the non-Jew is actually acquiring the deposit. Taz 168:14 gives a nuanced explanation that it was sold to the second Jew with a condition that the non-Jew could buy it back. Bach 168:13 and Nekudat Hakesef 168:11 explain that once a owner admits to the fact someone else owns his item it halachically belongs to that person (''kinyan odita'') and that is sufficient to remove the prohibition of ribbit. Either way, the Rama 169:11 concludes that we assume that it is impossible to gift a deposit to a non-Jew without him making a physical [[kinyan]] such as meshicha.</ref> | |||
#If a Jew lent from another Jew and got a collateral for that loan, and specified that if the Jew didn’t pay up on time he would either sell the collateral or borrow against it with interest. If he then borrowed against it with interest from a non-Jew, he isn’t responsible to pay the interest for the loan since that was the stipulation. Instead the Jewish borrower needs to pay the interest in order to redeem his collateral.<ref>Rashba responsa cited by Bet Yosef 168:26 explains that once they stipulated that the lender Jew can borrow with interest against the collateral we understand that to mean that the lender Jew isn’t borrowing from the non-Jew for himself, rather he is doing so as an agent of the other Jew. Therefore, the borrower Jew can repay the interest to the non-Jew and it isn’t interest to the lender Jew since he is neither a lender or a guarantor of the loan, he is simply the agent. Shaar Mishpat 168:13 cites this Rashba but also cites the Maharit YD 46 based on the Maharam who argues that it is an asmachta and isn't binding. Therefore, the lender couldn't lend to the non-Jew with interest on that collateral. Shulchan Gavoha 168:50 cites this Rashba and fundamentally puts it in the same camp as the Rosh which is codified by Shulchan Aruch 168:26. Kovetz Halichot Horah Ribbit v. 5 p. 316-7 explains that it is necessary for the Rashba and Ramban 71a that the lender Jew be the agent of the original borrower as well as the fact that the non-Jew is collecting from the collateral. The reason is that if it was simply that the non-Jew would collect from the collateral but the Jewish lender was never appointed as an agent then he is in essence borrowing for himself with interest and having another Jew repay his interest using his collateral.</ref> | |||
#If a Jew lent from another Jew and got a collateral for that loan, he can then use that collateral to borrow with interest from a non-Jew. He should specify to the non-Jew that he is borrowing on behalf of another Jew and he has no responsibility. Alternatively, if the collateral is worth the entire value of the loan he can use it to borrow from the non-Jew with interest. Then the original borrower Jew can pay the non-Jew the interest and redeem his collateral. The Jewish lender was simply the agent of the first Jew to borrow with interest from a non-Jew.<ref>Tashbetz Katan 486 writes that if the Jewish lender specifies to the non-Jew that he is borrowing on behalf of another Jew it is permitted, otherwise it is like he is borrowing for himself and having the original borrower Jew pay the interest is forbidden. Yet, the Bet Yosef 168:26 points out that the Rosh implies that it is permitted for the original borrower to pay the interest even if the lender Jew didn’t make that stipulation. Shulchan Aruch 168:26 simply quotes the case without specifically mentioning that stipulation. Shach 168:82 explains that the Tashbetz Katan and Rosh agree. Either a stipulation is necessary or having a collateral that is worth the entire value of the loan and interest. Otherwise it is forbidden. Chelkat Binyamin 168:291 agrees. Mayin Ganim Abadi YD 9 shows at length that the Bet Yosef thought that there is a dispute between the Tashbetz Katan and Rosh. The Rosh thinks that even without specifying it is assumed that the non-Jew depends on the collateral and there’s no responsibility upon the Jew. However, the Tashbetz Katan thinks that only if the Jew specifies that is it so, otherwise we assume that the non-Jew will hold responsible the Jew who is borrowing from him as well as from the collateral, in which case it would be forbidden for the original borrower to pay the interest. Erech Lechem 168:17 implies this as well. He explains that the Ran cited in Shulchan Aruch 168:17 implies like the Tashbetz Katan, yet, Shulchan Aruch ultimately sided with the Rosh and Rashba unlike the Tashbetz Katan and Ran.</ref> | |||
#If a Jew wants to borrow from a non-Jew with interest and he asks another Jew to be his agent, he can do so. If he gives him a collateral then it isn’t necessary for the agent to specify that he is borrowing on behalf of someone else since the non-Jew is ready to collect from the collateral.<ref>Rosh b”m 5:56, Tur and Shulchan Aruch 168:17. Bet Yosef 168:17 based on the Nemukei Yosef 44a clarifies that it is insufficient to say that the collateral serves as the place where the non-Jew can collect, rather he needs even to specify that he bares no responsibility. Shach 168:52 cites this opinion. Shulchan Aruch 170:1 follows that opinion.</ref> Some say that as long as the collateral is actually worth the value of the loan and interest, then it is automatic that the non-Jew is ready to collect from the collateral and his lien applies to that and not to the Jew.<ref>Shach 168:51</ref> | |||
#If a Jew wants to borrow from a non-Jew with interest and he asks another Jew to be his agent, he can do so. Yet, it is important that the agent specify with the non-Jew that he is indeed borrowing on behalf of another Jew and he bares no responsibility.<ref>Tur and Shulchan Aruch 168:17</ref> | |||
#It is an issue if the Jewish agent has any responsibility for the loan even to serve as a guarantor that can be collected from first (Arev Kablan), rather the non-Jew needs to completely be able to collect from the collateral.<ref>Bet Yosef 168:17 cites the Ran (Nemukei Yosef 42a) who holds that it is forbidden to be an Arev Kablan for another Jew.</ref> | |||
#A Jewish agent brought a collateral from a non-Jew to another Jew in order to borrow with interest. After the loan is due, the lender Jew can ask the agent to show him which non-Jew he lent to but can not ask the agent to pay for the asked the agent to redeem the non-Jew’s collateral and pay for the loan.<ref>Bet Yosef 168:27 cites the Rashba 3:47 who speaks of a case where a Jew brought a collateral from a non-Jew to another Jew in order to borrow with interest, then the lender Jew asked the agent to redeem the non-Jew’s collateral and pay for the loan. The Rashba rules that it is forbidden for the agent Jew to pay the loan and interest since he is merely an agent. He must though indicate to the lender Jew who is the non-Jew who borrowed the money. Shulchan Aruch YD 168:27 codifies the Rashba. Shach 168:83 explains that the agent has no responsibility to sell or buy the collateral from the lender.</ref> | |||
====Non-Jew Borrowed from Jew with Collateral and Jewish Agent==== | ====Non-Jew Borrowed from Jew with Collateral and Jewish Agent==== | ||
#A Jewish agent brought a collateral from a non-Jew to another Jew in order to borrow with interest. After the loan is due, the lender Jew can ask the agent to show him which non-Jew he lent to but can not ask the agent to pay for the asked the agent to redeem the non-Jew’s collateral and pay for the loan.<ref>Bet Yosef 168:27 cites the Rashba 3:47 who speaks of a case where a Jew brought a collateral from a non-Jew to another Jew in order to borrow with interest, then the lender Jew asked the agent to redeem the non-Jew’s collateral and pay for the loan. The Rashba rules that it is forbidden for the agent Jew to pay the loan and interest since he is merely an agent. He must though indicate to the lender Jew who is the non-Jew who borrowed the money. Shulchan Aruch YD 168:27 codifies the Rashba. Shach 168:83 explains that the agent has no responsibility to sell or buy the collateral from the lender.</ref> | #A Jewish agent brought a collateral from a non-Jew to another Jew in order to borrow with interest. After the loan is due, the lender Jew can ask the agent to show him which non-Jew he lent to but can not ask the agent to pay for the asked the agent to redeem the non-Jew’s collateral and pay for the loan.<ref>Bet Yosef 168:27 cites the Rashba 3:47 who speaks of a case where a Jew brought a collateral from a non-Jew to another Jew in order to borrow with interest, then the lender Jew asked the agent to redeem the non-Jew’s collateral and pay for the loan. The Rashba rules that it is forbidden for the agent Jew to pay the loan and interest since he is merely an agent. He must though indicate to the lender Jew who is the non-Jew who borrowed the money. Shulchan Aruch YD 168:27 codifies the Rashba. Shach 168:83 explains that the agent has no responsibility to sell or buy the collateral from the lender.</ref> | ||
==== | ====Borrowing on Behalf of a Community==== | ||
#If a | |||
#If a few Jewish administrators of a community or communal institution want to borrow with interest from a non-Jew on behalf of the community and then they lent it to the community with interest that is forbidden since ultimately the non-Jew will old the Jewish administrators responsible.<ref>Rashba responsa 5:259 writes that he heard that in many communities they will have the administrators of a community borrow with interest from a non-Jew on behalf of the community and then he lends it out with interest to the rest of the congregation. Rashba writes vehemently that there is nothing to rely upon. Rama 168:17 ambiguously quotes this practice without endorsing it or dismissing it.</ref> | |||
#If an administrator for a community borrows from a non-Jew in order to pay for a communal construction project, according to some, he may be paid back by the community including the interest.<ref>Pitchei Teshuva 168:4 cites Chatom Sofer YD 135 who writes that once an administrator of the community borrowed from a non-Jew with interest for building a communal building for guests. Then he charged the community to each pay their share of the cost. He cites the Ranach 58 who permitted a contractor who borrowed with interest from non-Jews to be repaid by the community since they are essentially paying for the building and not interest for a loan.</ref> | |||
====When the Deposit was Taken Forcibly==== | ====When the Deposit was Taken Forcibly==== | ||
# If a non-Jew took a security deposit from a Jew forcibly and then used it to borrow with interest from another Jew, that second jew may collect interest from the non-Jew but may not collect interest from the first Jew.<ref>Smak 260, Kol Bo 84, Mordechai 338 citing Riva, Baal Hatrumot 46:4:10 all quoted by the Bet Yosef 168:10</ref> Some disagree and allow collecting the interest.<ref>Rosh cited by Tur 168:10</ref> | |||
# However, under the following two circumstances one may collect the interest according to everyone: | #If a non-Jew took a security deposit from a Jew forcibly and then used it to borrow with interest from another Jew, that second jew may collect interest from the non-Jew but may not collect interest from the first Jew.<ref>Smak 260, Kol Bo 84, Mordechai 338 citing Riva, Baal Hatrumot 46:4:10 all quoted by the Bet Yosef 168:10</ref> Some disagree and allow collecting the interest.<ref>Rosh cited by Tur 168:10</ref> | ||
#However, under the following two circumstances one may collect the interest according to everyone: | |||
##If the force and responsibility of the loan rests upon the non-Jew besides for the security deposit then it is permitted to collect the interest from the first Jew.<ref>Bet Yosef 168:10 based on the Baal Hatrumot</ref> | ##If the force and responsibility of the loan rests upon the non-Jew besides for the security deposit then it is permitted to collect the interest from the first Jew.<ref>Bet Yosef 168:10 based on the Baal Hatrumot</ref> | ||
##Additionally, if the first Jew didn't know that his security deposit was going to be used to borrow from a Jew with interest it isn't any question of interest for him to pay the second Jew the interest to redeem his item.<ref>Maharik 16 cited by Bet Yosef 168:10</ref> | ##Additionally, if the first Jew didn't know that his security deposit was going to be used to borrow from a Jew with interest it isn't any question of interest for him to pay the second Jew the interest to redeem his item.<ref>Maharik 16 cited by Bet Yosef 168:10</ref> | ||
====When the Deposit was Given to the Non-Jew Properly==== | ====When the Deposit was Given to the Non-Jew Properly==== | ||
# If a Jew borrowed from a non-Jew with interest and gave him a security deposit. If the non-Jew takes that deposit and uses it to borrow from another Jew with interest some say that one may not take interest from that transaction, while others say that one can. Generally we are lenient except in the following two circumstances:<ref>Shulchan Aruch 168:10, 20</ref> | |||
#If a Jew borrowed from a non-Jew with interest and gave him a security deposit. If the non-Jew takes that deposit and uses it to borrow from another Jew with interest some say that one may not take interest from that transaction, while others say that one can. Generally we are lenient except in the following two circumstances:<ref>Shulchan Aruch 168:10, 20</ref> | |||
##If the non-Jew forcibly took the deposit from the first Jew then we assume that the deposit wasn't really acquired by the non-Jew and so when it is used to borrow against another Jew it is like there's a deal between the two Jews.<ref>Bet Yosef 168:10 in his second answer, Shach 168:26, 67, Taz 168:11. Gra 168:23 disagrees.</ref> | ##If the non-Jew forcibly took the deposit from the first Jew then we assume that the deposit wasn't really acquired by the non-Jew and so when it is used to borrow against another Jew it is like there's a deal between the two Jews.<ref>Bet Yosef 168:10 in his second answer, Shach 168:26, 67, Taz 168:11. Gra 168:23 disagrees.</ref> | ||
##Additionally, if the non-Jew immediately took that deposit from the first Jew and used it to borrow from the second Jew then it appears that he did so only to create a loan between two Jews. However, if he held onto it for some time for himself then it isn't an issue.<ref>Bet Yosef 168:10 in his first answer, Shach 168:67</ref> | ##Additionally, if the non-Jew immediately took that deposit from the first Jew and used it to borrow from the second Jew then it appears that he did so only to create a loan between two Jews. However, if he held onto it for some time for himself then it isn't an issue.<ref>Bet Yosef 168:10 in his first answer, Shach 168:67</ref> | ||
=== | ===Jew Borrowed from Non-Jew and then Non-Jew Borrows from Jew=== | ||
#If a Jew | |||
#If a Jew borrowed from a non-Jew with a collateral and then the non-Jew for his own purposes borrowed from another Jew with the same collateral it is permitted for the second Jew to collect interest from the non-Jew, even if the non-Jew will in turn force the first Jew to pay interest.<ref>Tur 168:20 quotes the Baal Haitur that if a Jew borrowed from a non-Jew with a collateral and now the non-Jew is borrowing from another Jew with the same collateral the second Jew may not accept the interest from the non-Jew since it is as though it is coming from the Jew. However, the Rosh Pesachim 2:10 and Rashba 3:229 disagree. Once the Jew borrows from the non-Jew it is completely permitted and if the non-Jew then borrows from another Jew that is disconnected. The Bet Yosef 168:20 cites the Ran b”m 71b s.v. veharamban and Baal Hatrumot 46:4:10 who side with the Baal Haitur. Yet, the Baal Hatrumot adds that if the non-Jew accepts responsibility for the loan he’s taking from the second Jew it is permitted. Shulchan Aruch 168:20 cites the Rosh and Rashba as the main opinion and the Baal Haitur as some say.</ref> | |||
#If a Jew | |||
==Selling Debt== | |||
# | ===Non-Jew Selling Jew's Debt=== | ||
#If a Jew owed a non-Jew capital and interest, that non-Jew can sell that debt to another Jew. If the non-Jew collects the interest it is permitted for the Jew to accept it from the non-Jew. If the non-Jew was never paid by the Jewish borrowed, second Jew who bought this debt shouldn't collect the interest from the first Jew.<ref>Rashba responsa 1:764 cited by Darkei Moshe 168:6, Bedek Habayit 168:27, Rama 168:10 and Knesset Hagedola (Bet Yosef 168:44).</ref> | |||
# It isn't considered actual interest if the non-Jew merely transfers the collection of the loan to a Jew, however, if he actually sells it to him then it is considered as he is the new lender and it is actual interest to collect it.<ref>Taz 168:12. See Darkei Teshuva 168:38 who discusses whether this would constitute a biblical or rabbinic prohibition. Nekudat Hakesef (on Taz 168:12) argues that if the transaction is only effective in non-Jewish law and not in halacha, it isn't a problem of interest. Chelkat Binyamin 66:10 s.v. vhaakum p. 313 questions this Shach based on CM 66:25 that clearly implies that any acquisition of a debt that is recognized by non-Jewish law is also accepted by Jewish law.</ref> | |||
# It is only problematic for a Jew to buy the Jewish debt from the non-Jew if the interest didn't yet accrue. However, if the interest already accrued and the Jewish borrower owes the non-Jew all of the capital and interest, the non-Jew can sell to the second Jew this loan to collect since it is a sale and not an interest loan at this point.<ref>Taz 168:12. Even though the Nekudat Hakesef on Taz 168:12 is strict, the Chelkat Binyamin 168:93 writes that one can be lenient on this question.</ref> | |||
=== | ===Non-Jew Selling Non-Jew's Debt=== | ||
# | #A Jew lent a non-Jew with interest upon a security deposit of the non-Jew. Then the non-Jew sold the security deposit to another Jew and he was told to pay the debt to the first Jew and collect the security deposit. This transaction is totally permitted since the loan was made between the Jew and non-Jew and then there was a sale of the non-Jewish debt to a Jew.<ref>Rosh responsa 108:25, Shulchan Aruch 168:12</ref> | ||
# | #However, if the Jew who bought the debt, didn't pay off the debt immediately in order to redeem the deposit and only paid it after some time, thereby accruing a further interest charge upon the non-Jewish lender, the Jew lender may force the non-Jew to pay that interest charge even if the non-Jew in turn will force the Jewish buyer to pay him for that interest charge. But the Jewish buyer may not pay the interest to the Jewish lender because that would paying interest.<ref>Rosh responsa 108:25, Shulchan Aruch 168:12</ref> | ||
===Selling | ===Jew Selling Non-Jew's Debt=== | ||
# If one Jew lent money to a non-Jew with interest he can then sell that loan to another Jew | #If one Jew lent money to a non-Jew with interest he can then sell that loan to another Jew. He should stipulate that this is a complete sale of the loan and they will no longer have any claims upon each other. Thereby the buyer becomes the new lender to the non-Jew and can collect interest.<ref>Shulchan Aruch 168:18. When there is no security deposit, the Shach 168:62 explains that the mechanism isn't exactly a sale since one can't really sell the debt to another Jew. Rather one is forgiving the non-Jew from paying him back. Then the non-Jew can pay the second Jew as he is "considered" according to their intention to be the new lender. In Shach 168:63 he clarifies that he doesn't need to inform the non-Jew of that which he forgave. Netivot Shalom 168:18:9 explains that even though the non-Jew will be paying the second Jew in error he can collect it. Shach 168:63 is in disagreement with the Bach who thinks that it is necessary to alert the non-Jew. See Chavot Daat 168:41 who endorses another approach; he explains that this transaction is a sale with respect to non-Jews and purely forgiving a loan with respect to Jews. Therefore, he concludes that the first Jew may not go and reacquire the loan from the non-Jew that he forgave. However, it seems Chelkat Binyamin p. 313 would challenge this from C.M. 66:25.</ref> When there is a security deposit from the non-Jew that would have to be transferred to the second Jew with the same stipulation that it is a complete sale and they have no claims upon each other.<ref>Shulchan Aruch Y.D. 168:18</ref> According to Ashkenazim it isn't necessary to make such a clear stipulation since it is assumed that this is the stipulation.<ref>Rama 168:18 following the Mordechai and Rosh teshuva</ref> | ||
#A Jew who lent to a non-Jew with interest can sell the non-Jew's loan from a certain date going forward. The first Jew would collect the interest until that date and the second from that date and on.<ref>Tur 168:18</ref> | |||
# A Jew who lent a non-Jew | #A Jew who lent a non-Jew for a certain percent he can sell that loan at a lower percent. For example, if the first Jew lent a non-Jew $100 for 10% a year and then resold that debt to another Jew for 5% a year.<ref>Rama 168:18, Chelkat Binyamin 168:204</ref> | ||
# A Jew who lent a non-Jew | #A Jew who lent a non-Jew money for interest can then resell it to a Jew but he may not sell a portion of that loan to a Jew.<ref>Shach (Nekudat Hakesef on Taz 168:28) and Derisha 168:16</ref> Others allow even selling a portion of it.<ref>Taz 168:18, Chavot Daat Chidushim 168:53. This is also the implication of the Trumat Hadeshen 303, Bet Yosef 168:18 s.v. vkatuv, and Darkei Moshe 168:16. Chelkat Binyamin 168:204 cites both opinions.</ref> | ||
#A Jew who lent a non-Jew money for interest can't stipulate the buyer resell it to him.<ref>Although the Rama 168:18 is lenient, both the Shach 168:57 and Taz 168:27 disagree.</ref> | |||
# A Jew who lent a non-Jew money for interest can | #A Jew who lent a non-Jew money for interest can sell that debt to a Jew but can't stipulate that he'll sell that debt if the Jew also gives him an additional interest free loan.<ref>The Taz 168:24 in disagreeing with the Levush forbids this. Shach in Nekudat Hakesef and Chachmat Adam cited by Chelkat Binyamin 168:151 are lenient. Netivot Shalom 168:18:14:1 questions the Shach from Shulchan Aruch 166:3 and answers it. Chavot Daat 168:34 forbids because of Shulchan Aruch 160:23 and 172:4. Chelkat Binyamin thinks that even the Shach accepts part of the argument of the Chavot Daat and would forbid anytime that sale of the debt is at a lower price because of the fact that he is also receiving an interest free loan.</ref> | ||
# | #The Jew can resell the non-Jew's debt for a lower interest rate than the non-Jew is giving him.<ref>Rama 168:18</ref> | ||
#It is permitted for the buyer of the debt to leave the non-Jew's security deposit in the hands of the original Jewish lender.<ref>Rama 168:18 clarifies that it is sufficient for the sale of the loan to be effective when the buyer pays for the loan even if he isn't transferred the loan document or the collateral and doesn't do another kinyan. It is evident in the Darkei Moshe 168:17 and Chavot Daat 168:37 that selling a non-Jew's debt is ineffective with merely paying for the debt, the loan document physically needs to be transferred. However, when a collateral is involved it is sufficient to pay for it. Chelkat Binyamin 168:214 clarifies that one should be explicit that one is selling the collateral wherever it is. Ideally, the Rama concludes, one should use a kinyan to sell the collateral and not rely on the payment alone. The Chelkat Binyamin 168:215 explains that meshicha or sudar are good forms of kinyan.</ref> The responsibility of the security deposit is now upon the second Jew but if they stipulated that the first Jew would have responsibility then he does.<ref>Bet Yosef 168:18 s.v. vkatuv, Rama 168:18, Chavot Daat 168:37. Shach 168:58 notes that in such a case it is necessary to do a formal sale of the loan in order for him to leave the security deposit with the first Jew. </ref> | |||
# | #It is forbidden to say that one wants to borrow from another Jew with interest on or in exchange for a non-Jew’s collateral which was given to the first Jew because of an interest loan,<ref>Rosh responsa 108:28 writes that if a Jew who lent to a non-Jew with interest asks another Jew to lend him money with interest on the collateral he received from the non-Jew that is considered taking interest. Tur and Shulchan Aruch Y.D. 168:19 codify the Rosh. What exactly is the issue with this formulation? The Shach 168:64 contends that as long as one says that one wants to borrow from another Jew with interest on a non-Jewish collateral we can’t reinterepert his words and since he said he wanted to borrow with interest that is how we view his transaction. However, if he wouldn’t explain the transaction at all, we would explain him to mean that he intended to buy it since we’d prefer to say he did something permitted. Chelkat Binyamin 168:236 sides with the Shach. He explains that there’s a fundamental difference between a sale and a loan. A sale is where the first Jew is completely removed from any dealings with the non-Jew and if he collects anything from the non-Jew he must give it to the second Jew. A loan is where the first Jew must pay the second Jew whether or not the non-Jew will pay. The Bach 168:26 disagrees and explains that there is a minhag to be lenient even if one says that one intends to borrow because we reinterpret it to mean to buy. Taz 168:28 seems to agree. The Bet Yosef and Taz imply that the reason for the Rosh isn’t because of his incriminating words but rather because of his motivation. If the Jewish lender would have borrowed on that collateral for the benefit of the non-Jew it wouldn’t be considered a Jewish loan. However, as long as the motivation is for the needs of the Jew we understand that transaction between the two Jews to be a loan and not a sale.</ref> in whatever way the collateral is transferred to the second Jew.<Ref>Shach 168:64 concludes that this issue of stating that one wants to borrow from a Jew with interest on the collateral of a non-Jew is only a problem if the first Jew owes the non-Jew's collateral such as if the non-Jew stated that it was his retroactively from the time of the loan if it goes unpaid, however, if he doesn't have that ownership and he transfers the collateral to the other Jew it is permitted. Chavot Daat 168:41 and Rabbi Akiva Eiger on Shach 168:64 disagree. Chelkat Binyamin Biurim 168:19 s.v. vamar p. 367 answers their question.</ref> | ||
==Managing Someone Else's Money== | ==Managing Someone Else's Money== | ||
===Jewish Money Deposited with Non-Jew Used for Jewish Loan=== | ===Jewish Money Deposited with Non-Jew Used for Jewish Loan=== | ||
#If a Jew deposits money with a non-Jew it is permitted for another Jew to borrow from that non-Jew with interest as long as the non-Jew took responsibility to the first Jew like a borrower.<ref>The Tosefta b”m 5:8 states that if a Jew deposited money with a non-Jew if the non-Jew took responsibility for it then he can lend it to another Jew with interest. Although the Baal Hatrumot 1:46:2:6 quotes someone who held we don’t follow the Tosefta, in 7:1 he writes that we do follow the Tosefta. Also, the Rosh b”m 5:56 and Tur and Shulchan Aruch Y.D. 168:21 codify it. Bet Yosef 168:21 isn’t certain what is the definition of the amount of responsibility that the non-Jew must accept in order to permit this. Does it mean that the non-Jew has responsibility like a watchman or does he need to take responsibility like a borrower who even if it is lost is obligated? He quotes the Baal Hatrumot assumed it was the latter. Shach 168:68 and Taz 168:31 agree.</ref> | #If a Jew deposits money with a non-Jew it is permitted for another Jew to borrow from that non-Jew with interest as long as the non-Jew took responsibility to the first Jew like a borrower.<ref>The Tosefta b”m 5:8 states that if a Jew deposited money with a non-Jew if the non-Jew took responsibility for it then he can lend it to another Jew with interest. Although the Baal Hatrumot 1:46:2:6 quotes someone who held we don’t follow the Tosefta, in 7:1 he writes that we do follow the Tosefta. Also, the Rosh b”m 5:56 and Tur and Shulchan Aruch Y.D. 168:21 codify it. Bet Yosef 168:21 isn’t certain what is the definition of the amount of responsibility that the non-Jew must accept in order to permit this. Does it mean that the non-Jew has responsibility like a watchman or does he need to take responsibility like a borrower who even if it is lost is obligated? He quotes the Baal Hatrumot assumed it was the latter. Shach 168:68 and Taz 168:31 agree.</ref> | ||
===Non-Jewish Money Deposited with Non-Jew Used for Jewish Loan=== | ===Non-Jewish Money Deposited with Non-Jew Used for Jewish Loan=== | ||
#Money deposited by a non-Jew with a Jew, if the Jew accepts responsibility for them as a lona, he may not then lend them with interest. However, if he didn’t accept responsibility if he lent them to another Jew he didn’t take interest. Nonetheless, it is generally forbidden to do so since it is suspicious (marit ayin) and appears like taking interest from another Jew.<ref>The Tosefta b”m 5:8 states that if a non-Jew deposited money with a Jew he can lend it to another Jew with interest if the first Jew doesn’t have responsibility for the loan. The Bet Yosef 168:22 quotes the Baal Hatrumot 7:1 who explains that if the Jew has responsibility for the loan if it isn’t paid up that is a problem, however, if he merely accepts responsibility to pay while it is in his domain that is permissible since if something happens he can pay and there was no loan at all. Shach 168:69 and Taz 168:33 agree. Nonetheless, even in the first case, the Tur 168:23 writes that there is a problem because people will suspect that the first Jew is lending his own money to another Jew with interest.</ref> | #Money deposited by a non-Jew with a Jew, if the Jew accepts responsibility for them as a lona, he may not then lend them with interest. However, if he didn’t accept responsibility if he lent them to another Jew he didn’t take interest. Nonetheless, it is generally forbidden to do so since it is suspicious (marit ayin) and appears like taking interest from another Jew.<ref>The Tosefta b”m 5:8 states that if a non-Jew deposited money with a Jew he can lend it to another Jew with interest if the first Jew doesn’t have responsibility for the loan. The Bet Yosef 168:22 quotes the Baal Hatrumot 7:1 who explains that if the Jew has responsibility for the loan if it isn’t paid up that is a problem, however, if he merely accepts responsibility to pay while it is in his domain that is permissible since if something happens he can pay and there was no loan at all. Shach 168:69 and Taz 168:33 agree. Nonetheless, even in the first case, the Tur 168:23 writes that there is a problem because people will suspect that the first Jew is lending his own money to another Jew with interest.</ref> | ||
# The issue of doing something that appears suspicious is avoided when it is well known that the Jew involved is an administrator for the non-Jew’s money and is merely lending the non-Jew’s money and not his own.<ref>Ran b”m 61b s.v. ani cited by Bet Yosef 168:23 writes that if a Jew is appointed a financial administrator over the non-Jew’s money he no longer has to be concerned with marit ayin since people won’t suspect him of lending his own money. Talmidei Harashba similarly holds that if it is the Jew’s profession to deal with the non-Jew’s money then there’s no suspicion. Baal Hatrumot 7:1 in fact only requires that the lender express to the borrower that it isn’t his own money. Rama 168:23 and Shach 168:71 accept the Ran and Talmidei Harashba, not the Baal Hatrumot.</ref> | #The issue of doing something that appears suspicious is avoided when it is well known that the Jew involved is an administrator for the non-Jew’s money and is merely lending the non-Jew’s money and not his own.<ref>Ran b”m 61b s.v. ani cited by Bet Yosef 168:23 writes that if a Jew is appointed a financial administrator over the non-Jew’s money he no longer has to be concerned with marit ayin since people won’t suspect him of lending his own money. Talmidei Harashba similarly holds that if it is the Jew’s profession to deal with the non-Jew’s money then there’s no suspicion. Baal Hatrumot 7:1 in fact only requires that the lender express to the borrower that it isn’t his own money. Rama 168:23 and Shach 168:71 accept the Ran and Talmidei Harashba, not the Baal Hatrumot.</ref> | ||
===Non-Jew Hired by Jew to Lend His Money with Interest=== | ===Non-Jew Hired by Jew to Lend His Money with Interest=== | ||
#If a Jew hires a non-Jew to lend out his money with interest to Jews, it is only permitted if the non-Jew is merely an agent and accepts responsibility. Otherwise it is forbidden.<ref>The Tur 168:23 extends the cases of the Tosefta to include cases of where a Jew hires a non-Jew to lend his money out with interest. Again, it all depends on who takes the responsibility for the loan. Shulchan Aruch 168:23 codifies this.</ref> | #If a Jew hires a non-Jew to lend out his money with interest to Jews, it is only permitted if the non-Jew is merely an agent and accepts responsibility. Otherwise it is forbidden.<ref>The Tur 168:23 extends the cases of the Tosefta to include cases of where a Jew hires a non-Jew to lend his money out with interest. Again, it all depends on who takes the responsibility for the loan. Shulchan Aruch 168:23 codifies this.</ref> | ||
===Jew Hired by Non-Jew to Lend His Money with Interest=== | ===Jew Hired by Non-Jew to Lend His Money with Interest=== | ||
#If a non-Jew hires a Jew to lend out his money with interest to Jews, it is forbidden if the Jewish employee accepts responsibility as a loan. Even if he doesn’t accept responsibility and technically it is a non-Jewish loan, nonetheless, there is a concern for suspicion (marit ayin) that it appears to be interest between two Jews.< | |||
#If a non-Jew hires a Jew to lend out his money with interest to Jews, it is forbidden if the Jewish employee accepts responsibility as a loan. Even if he doesn’t accept responsibility and technically it is a non-Jewish loan, nonetheless, there is a concern for suspicion (marit ayin) that it appears to be interest between two Jews.<ref>Tur and Shulchan Aruch 168:23</ref> | |||
==Interest Gifted to A Jew or Non-Jew== | ==Interest Gifted to A Jew or Non-Jew== | ||
# It is forbidden to lend another Jew money in order that he give the interest to a non-Jew.<ref>Shulchan Aruch Y.D. 168:1</ref> | |||
# It is permitted for a Jew to borrow from a non-Jew even if afterwards the non-Jew gives the interest to a Jew.<ref>Shulchan Aruch Y.D. 168:4</ref> | #It is forbidden to lend another Jew money in order that he give the interest to a non-Jew.<ref>Shulchan Aruch Y.D. 168:1</ref> | ||
#It is permitted for a Jew to borrow from a non-Jew even if afterwards the non-Jew gives the interest to a Jew.<ref>Shulchan Aruch Y.D. 168:4</ref> | |||
==Disputes about the Arrangement== | ==Disputes about the Arrangement== | ||
#If the borrower claims that his lender charged him interest and | #If the borrower claims that his lender charged him interest and now it should be deducted or should be returned, if the lender responds that it was done in a permissible way he is believed without any oath.<ref>Shulchan Aruch Y.D. 177:9, 177:12, Rama 160:18. The Taz 177:19 and Shach 177:27 explain that the reason for this is that we assume that it was done in a permissible fashion rather than a forbidden one. Although Taz 177:17 is troubled by this halacha of why it is worded regarding orphans, Shach 160:30 explains that there is no difference between whether the lender is an orphan or not; rather the question asked of the Rashba was with respect to orphans. If the lender responds that it was done in a permitted way then he is believed, and if he denies getting interest he is believed with an oath.</ref> Some say that it is necessary to specify how it was done permissibly.<ref>Taz 168:36. See Shaarei Deah 168:11 who differs.</ref> | ||
# | # If the borrower claims that his lender charged him interest and it should be deducted from the capital according to the interest he paid and the lender responds that he never took interest he is believed only if he takes an oath.<ref>Shulchan Aruch Y.D. 168:25, 177:11. The reason is that since the lender says that he never took the interest we can't assume that it was taken but taken in a permitted way. We have to substantiate the claim that he denies getting the interest. Therefore, he is obligated to take a shevuat hesit which is obligated by anyone who denies money. Although the Rabbenu Yerucham quotes the Ramah who doesn't require a shevuah even in such a case, the Shach 177:26 clarifies that we follow the main opinion in Shulchan Aruch and Rama.</ref> | ||
#This is true as long as the lender already collected the interest. However, if he has a collateral of the borrower or a legal document that entitles him to collect, he can collect after making an oath. If he responds that he didn’t take any interest or doesn’t know if he took any interest, he is believed only if he takes an oath to that effect. This is true as long as the lender already collected the interest, has a collateral of the borrower, or have a legal document that entitles him to collect. However, in absence of that and the lender hasn’t yet collected if the borrower claims that he doesn’t owe the money due to interest he is believed and doesn’t have to pay.<ref>Shulchan Aruch and Rama Y.D. 168:25</ref> | |||
==Guarantor== | ==Guarantor== | ||
# If a Jew takes an interest loan from a non-Jew it is generally permitted for a Jew to be his guarantor. It would be forbidden for a Jew to be his guarantor if they allowed the lender to collect from the guarantor before collecting from the borrower. However, nowadays it is customary that the lender doesn't ask the guarantor unless he first asks the borrower.<ref>Gemara Bava Metsia 71b, Shulchan Aruch and Rama Y.D. 170:1. There are three types of guarantors: 1) Arev Shluf Dutz - A guarantor whom the lender goes to first. 2) Arev Kablan - A guarantor whom the lender can choose to go to first. 3) Arev Stam - A guarantor whom the lender can't collect from until he tries to collect from the borrower. In the days of the gemara, the non-Jewish practice was that a standard guarantor was a guarantor that was a Arev Shluf Dutz (Rashba) or Arev Kablan (Rashi). The gemara indicates that this is problematic for a Jew to be for another Jew when borrowing from a non-Jew. However, if the non-Jew would agree to follow the Jewish practice which was that the guarantor would be a Arev Kablan or Arev Stam then it is permitted. Shulchan Aruch and Rama 170:1 follow Rashi initially but after the fact like the Rashba. The Tur and Rama 170:1 comment that today the non-Jewish practice is that a standard guarantor is an Arev Stam, therefore generally it is permitted to be an guarantor for a Jew who borrowed with interest from a non-Jew. | |||
#If a Jew takes an interest loan from a non-Jew it is generally permitted for a Jew to be his guarantor. It would be forbidden for a Jew to be his guarantor if they allowed the lender to collect from the guarantor before collecting from the borrower. However, nowadays it is customary that the lender doesn't ask the guarantor unless he first asks the borrower.<ref>Gemara Bava Metsia 71b, Shulchan Aruch and Rama Y.D. 170:1. There are three types of guarantors: 1) Arev Shluf Dutz - A guarantor whom the lender goes to first. 2) Arev Kablan - A guarantor whom the lender can choose to go to first. 3) Arev Stam - A guarantor whom the lender can't collect from until he tries to collect from the borrower. In the days of the gemara, the non-Jewish practice was that a standard guarantor was a guarantor that was a Arev Shluf Dutz (Rashba) or Arev Kablan (Rashi). The gemara indicates that this is problematic for a Jew to be for another Jew when borrowing from a non-Jew. However, if the non-Jew would agree to follow the Jewish practice which was that the guarantor would be a Arev Kablan or Arev Stam then it is permitted. Shulchan Aruch and Rama 170:1 follow Rashi initially but after the fact like the Rashba. The Tur and Rama 170:1 comment that today the non-Jewish practice is that a standard guarantor is an Arev Stam, therefore generally it is permitted to be an guarantor for a Jew who borrowed with interest from a non-Jew. | |||
*The Baal HaItur (Iska 14d cited by Bet Yosef 170:1) permits when the non-Jew lent money to the Jew and there's another Jew who is a guarantor of any kind. It seems that he learned that the gemara only forbade when the non-Jew borrowed from the Jew and the Jew is a guarantor of the non-Jew. This opinion is completely outvoted by the Rashi, Rashba, Ran, Nemukei Yosef, Baal Hatrumot, and Tur all cited by the Bet Yosef 170:1.</ref> | |||
#After the fact, if a Jew was a guarantor for another Jew for an interest loan from a non-Jew when it was specified that the lender would automatically claim the money from the guarantor first, which is forbidden to arrange, any interest that the guarantor paid needs to be returned. However, if it was set up such that the lender could choose to collect from the borrower or the guarantor first, which is also forbidden to arrange, however, after the fact, the money doesn't need to be returned to the guarantor.<ref>Shulchan Aruch and Rama Y.D. 170:1, Taz 170:1. The Bet Yosef explains that in cases where it is a dispute between Rashi and Rashba after the fact one doesn't have to pay because they can rely upon the Rashba. The Darkei Moshe argues that in all cases one doesn't have to return the interest after the fact since it is only rabbinic interest. Taz 170:1 rejects the opinion of the Darkei Moshe arguing that the Gemara makes it clear that it is a biblical prohibition. Shach 170:2 defends the Rama that it would be rabbinic if the Arev isn't a Arev Shluf Dutz or a guarantor of a non-Jew borrowing from a Jew.</ref> | |||
#It is permitted to pay a guarantor to be a guarantor.<ref>Taz 170:3, Nekudat Hakesef 170:2. The Taz explains that one isn't paying for the fact that the Arev is going to lend one money if he ends up paying on his behalf, rather one is merely paying so that he should ensure my loan.</ref> Some question this if the payment seems to take in account the risk that the guarantor assumed in the case he would actually have to pay and only be repaid by the borrower at a later date.<ref>Chelkat Binyamin Biurim 170:1 p. 388 s.v. hari. Chavot Daat 170:1 does not allow paying the guarantor to be a guarantor.</ref> Certainly one shouldn't pay a guarantor to be a guarantor whom the lender goes to be paid before he goes to the borrower (Arev Shluf Dutz).<ref>Taz 170:3 forbids, while Shach in Nekudat Hakesef 170:2 questions it. Chavot Daat 170:1 is strict. Chelkat Binyamin 170:12 for an Erev Kablan cites the dispute but sounds like many are lenient, while for Arev Shluf Dutz only writes that many forbid it.</ref> | |||
#One may not enter into a guarantor relationship that is forbidden even if doesn't end up paying interest.<ref>Can you arrange to be a guarantor that is forbidden if you don't end up paying interest? Nekudat Hakesef 170:3 implies that there's no prohibition. Taz 170:5 disagrees. Bet Meir 170 questions the Nekudat Hakesef. Most achronim disagree with the Shach, primarily because the Gemara Bava Metsia 75b and 71b strongly imply that there is a biblical prohibition to arrange to be a guarantor that is forbidden. Some answer that the Nekudat Hakesef would limit the gemara to cases where the guarantor is a for a Jew who is borrowing with interest from a Jew and not from a non-Jew (Mishnat Shmuel Arvut Bribit p. 26, Dvar Shalom Ribit Horovitz p. 304). Others answer that the Nekudat Hakesef would be limited to a guarantor that is only rabbinically forbidden such as a Arev Kablan but not an Arev Shluf Dutz (Neitvot Moshe on Taz 170:5 citing Shevilei Dovid and R' Aryeh Leib). Shaar Deah 170:5 disagrees with the Nekudat Hakesef and proves it from the Raavan. Either way, most argue with the Nekudat Hakesef (Brit Yehuda ch. 1 fnt. 33).</ref> | |||
#A non-Jew who borrowed from a Jew, another Jew may be a guarantor of the non-Jew if the stipulation is that the lender goes to the borrower to be paid first.<ref>Bet Yosef 170:1 clarifies that everyone agrees that for a non-Jew who borrows from a Jew one may not be an Arev Shluf Dutz, one may be a Arev Stam, and there's a dispute between Rashi and Rashba whether one can be an Arev Kablan. Ran holds that even those who subscribe to the Rashba in the case of a Jew who borrowed from a non-Jew agree when the non-Jew borrows from a Jew that they agree with Rashi that one may not be an Arev Kablan. Bet Yosef 170:1 favors the view of the Rashba (teshuva meyucheset lramban 223) who holds in either case of a non-Jew lending or borrowing from a Jew one can be an Arev Kablan, though initially we follow Rashi. Shach sides with the Ran. Rabbi Akiva Eiger (on Shach 170:3) mentions that the Rashba disagrees. | |||
*Raavan teshuva 104 explains if someone was a guarantor for a non-Jew who borrowed from a Jew with interest he doesn't have to pay the interest since there's no binding kinyan by which he is obliged to pay the interest. Even though every guarantor is obligated with his speech even without a kinyan, that only applies to the capital and not the interest which didn't yet accrue. It also seems to be an asmachta for the guarantor to pay the interest. In terms of actual ribbit, the Raavan isn't concerned if the guarantor of any kind would pay for the interest to the lender since he isn't considered the borrower or lender. Gra (comments to b"m 71b) implies that this is also the opinion of Tosfot b"m 71b as does the Darkei Moshe 170:3. However, the Ravyah (cited by the Mordechai b"m 333) disagrees and holds that it is interest for the guarantor to pay the interest for the non-Jew. The Bet Yosef 170:1 writes that this is also the opinion of the Raavad, Rosh, and Rashba. Darkei Moshe agrees. However, Rabbi Akiva Eiger argues (on Shach 170:3) that Tosfot can be understood to hold similarly to the Raavad. In summary, the Raavan and perhaps Tosfot hold that being a guarantor of a non-Jew who borrowed from a non-Jew is permitted, while most disagree.</ref> | |||
#Some say that if one is only a guarantor on the capital and not the interest one can be a guarantor under any stipulation for a non-Jew who borrowed from a Jew. However, others disagree.<ref>Rama 170:2 is lenient. However, the Taz 170:5 vehemently disagrees. He writes that the Tosfot's view that entirely permits being a guarantor for a non-Jew who borrowed from a Jew was outvoted. Also, the Hagahot Ashri 5:53 cited by Trumat Hadeshen 301 who applies the Ravyah to be lenient if one only pays the capital and not interest, is only permitted after the fact but wouldn't permit initially setting it up. The Nekudat Hakesef (on Taz 170:5) comes to defend the Rama.</ref> | |||
#Some day that if one is only a guarantor on the interest and not the capital one can be a guarantor under any stipulation for a non-Jew who borrowed from a Jew. However, others disagree.<ref>Rama 170:2 is lenient. He explains in the Darkei Moshe 170:6 that since one is only a guarantor for the interest and not the capital one isn't considered a borrower and therefore there is no issue with paying interest to the lender. However, the Levush 170:2 and Taz 170:6 argue that once one accepted the responsibility for the interest then it is considered as though he is responsible for the capital since as long as the capital isn't paid the interest continues to accrue. Their proof is the Baal Hatrumot 46:4:10 cited by Bet Yosef 169:13. The Bach 170:2 and Shach 170:7 answer for the Rama. The Shach explains that it is permitted if the responsibility for the interest doesn't enable the borrower to keep the loan for longer, it is a mere consequence of him having the money, however, if one specified that as long as the guarantor pays more interest the lender can't pressure the borrower to pay that is forbidden since he is enabling the loan to be extended.</ref> | |||
#If the guarantor is a guarantor for the capital or interest alone he may not be the one who delivers the money from the lender to the non-Jew because it appears as interest.<ref>Trumat Hadeshen 301 adds that even if one is going to take a partial responsibility as a guarantor for a non-Jew who borrowed from a Jew, one shouldn't be the one who delivers the money from the hands of the Jewish lender. His proof is the Gemara Bava Metsia 71b and Shulchan Aruch Y.D. 169:1 that having a Jew deliver loan of a non-Jew to a Jew appears as ribbit. Rama 170:2 and Shach 170:6 agree. Regarding some of the more serious issues raised by the Shach, see Rabbi Akiva Eiger, Shaar Deah 170:6 and Chavot Daat who argue and limit the Shach's concern.</ref> This could be alleviated if the guarantor delivers the non-Jew's collateral in exchange for the loan since the responsibility of the loan falls upon the collateral.<ref>Rama 170:2, Taz 170:7</ref> | |||
#It is problematic to sell a non-Jew's debt to another Jew and at the same time become a guarantor for that loan or even just for the interest.<ref>Trumat Hadeshen 301 was asked about a person who sold part of a non-Jew's loan to another Jew so that he can collect the interest but the seller took the responsibility as a guarantor on the part of the loan he sold and not the interest. Initially it seems that this is prohibited since the sale involves a deal that is nearly certain for the buyer to profit (''karov lsachar urachok mhefsed'', b"m 64b) since he has a loan with a guarantor from a Jew. However, he permits it because the guarantor isn't considered actually like a borrower when he accepts a partial responsibility for the loan itself and not the interest. The Taz 170:5 generally thinks we can't follow the Trumat Hadeshen initially since is based on a Tosfot that isn't accepted as the halacha and a misapplication of a Hagahot Ashri. Bach 170:2 adds that if the Jewish seller of the debt takes up himself responsibility as a guarantor for the loan or even just for the interest then it is forbidden because of the issue the Trumat Hadeshen raised that the buyer is nearly certainly going to gain. The Bach though is lenient if the Jew doesn't sell the non-Jewish debt but simply delivers a collateral of a non-Jew for a Jew to invest in. The Taz 170:7 accepts the Bach other than to point out that the Bach should forbid the latter case for other reasons. Shach 170:8 also accepts the Bach but adds that it would be permitted if one didn't actually sell the non-Jewish debt but merely transferred it to the other Jew as he describes in Shach 169:57.</ref> | |||
#For a guarantor to be obligated to pay if he accepted being a guarantor at the time of the loan he doesn't need a [[kinyan]] but if he accepted it afterwards he needs a [[kinyan]].<ref>Shulchan Aruch C.M. 129:1-2 Bet Yosef Y.D. 170:2</ref> Becoming a guarantor on ribbit is always considered like not at the time of the loan and requires a kinyan<ref>Raavan teshuva 104, Bet Yosef 170:2, Taz 170:8, Shach 170:5</ref> unless it was combined together with the capital and would have to be paid even if the loan was paid early.<ref>Maharam (Teshuva Prague Edition n. 38) cited by Mordechai Bava Metia n. 333 and Bet Yosef 170:2, Shach 170:5</ref> Becoming a guarantor to exempt another original guarantor it isn't clear if a kinyan is necessary.<ref>Shach 170:9. He explains that this is the safek of the Hagahot Ashri.</ref> If the guarantor is exempting the borrower so that the lender will only collect from the guarantor that is binding without a kinyan.<ref>Rama CM 129:3, Sama 129:9, Shach YD 170:9. Since he is completely exempting the borrowing it is like he is the borrower and a guarantor at the time of the loan which doesn't need a kinyan.</ref> | |||
==Resources== | ==Resources== | ||
*[https://docs.google.com/presentation/d/1ap-s04x1RQAvlRiZsg8wiN5zxmRQlCS8Bl5H4oBcpvs/edit?usp=sharing Slides for YD Siman 168-9] | *[https://docs.google.com/presentation/d/1ap-s04x1RQAvlRiZsg8wiN5zxmRQlCS8Bl5H4oBcpvs/edit?usp=sharing Slides for YD Siman 168-9] | ||
==Sources== | ==Sources== | ||
<references/> | <references /> | ||
[[Category:Ribbit]] | [[Category:Ribbit]] | ||
Latest revision as of 21:36, 25 November 2024
The Torah recognizes the time value of money and therefore permits charging a non-Jew interest for a loan. However, with respect to a fellow Jew the Torah demands that a person do a kindness and lend them for free.[1] Therefore, the Torah[2] forbids a Jew from taking or paying interest to another Jew, but it is permitted to take interest or pay interest to a non-Jew.
Interest with a Non-Jew
- It is permitted to lend to and borrow from non-Jews with interest.[3]
- Nowadays in Israel it is forbidden to lend non-Jews money with interest since it is possible to do business with Jews exclusively. Yet it would be permitted in order to make a livelihood but not to make oneself wealthy.[4] Some poskim are lenient even in Israel.[5]
- Even outside Israel one should be strict if one can.[6] Some say that for an impersonal bank it is permitted since one hardly interacts with the non-Jews.[7]
- It is permitted to borrow with interest from non-Jews.[8]
Interest with a Convert
- If a Jew borrowed from a non-Jew with interest and then the non-Jew converted the convert may not collect the interest from the Jew even if it accrued before he converted unless it was already established as a loan. That is, if it was already due or prematurely they agreed that the borrower will owe the capital and interest then it is viewed as a complete interest free loan from that time forward.[9]
- If a non-Jew borrowed from a Jew with interest and then converts the convert has to pay for the interest of the loan that accrued before he converted.[10]
Interest with a Non-Religious Jew
- It is permitted to lend to a non-religious Jew with interest if he was brought up religious and later became non-religious.[11] Initially this should be avoided.[12] However, it is forbidden to borrow from a non-religious Jew with interest.[13]
- One may not lend a non-religious Jew who is raised as a non-religious Jew with interest.[14] This applies to conservative and reform Jews today.[15]
- Some say that it is permitted to lend the Karaites with interest.[16]
Arrangements of Loans Between Several Parties
Lending A Non-Jew's Money to A Jew with Interest
- If a person borrowed money from a non-Jew with interest it is forbidden to then lend that money to another Jew with interest.[17]
- If a person borrowed money from a non-Jew with interest and then before he returns it another Jew wants that loan and is willing to pay the interest to the non-Jewish lender, one may only give that loan to the second Jew under one of two methods. Both of these methods free the first Jew from any financial relationship with the second Jew:
- The non-Jew tells the first Jew to leave the money in a certain location and he will be exempt[18] and then the second Jew takes it from there.[19]
- The first Jew returns the money to the non-Jew and he then gives it to the second Jew. No words need to be spoken since it is understood that when the non-Jew took the money from the first Jew he was exempting him from his loan.[20]
- It isn't a solution for the non-Jew to simply tell the first Jew to hand the money over to the second Jew and he'll be exempt since that appears as though the two Jews lent money with interest.[21]
Lending with Interest with a Non-Jewish Agent
- A non-Jew who borrowed from a Jew and is ready to return the money, if he finds another Jew to borrow that money with interest can give it to him with interest. However, if the non-Jew brought the money to the lender Jew he can't lend it to another Jew since that considered a loan between the lender and the other Jew with interest. Obviously this is forbidden if the non-Jew actually gave the money back to the lender that the lender may not lend that money to a Jew with interest. Additionally it is forbidden if the non-Jew put the money on the ground for the other Jew to pick up and the lender stated that the non-Jew would be exempt once he placed the money on the ground. These are all considered biblical interest.[22] However, if the non-Jew simply hands the money to the borrower Jew in the presence of the lender Jew, most rishonim hold that this is rabbinically forbidden since the non-Jew is an agent of the borrower. However, there is a minority opinion in the rishonim who allows this.[23] The halacha is not to accept this minority opinion.[24]
- It is forbidden for a Jew to arrange with a non-Jew to lend your money to him in order that he lend it to another Jew with interest.[25] After the fact it is forbidden to take the interest since the non-Jewish agent is merely a ruse and it was really a loan with interest from a Jew.[26]
- If the lender didn't know about the fact that the borrower appointed the non-Jew to borrow for him from a Jew with interest he can keep the interest[27] and some allow him to even collect the interest once it was arranged.[28] Sephardim are more strict and only allow this completely after the fact that the interest was collected.[29]
- If a Jew told a non-Jew to borrow for him from another non-Jew with interest and he went and borrowed from a Jew with interest the borrower can even pay the interest.[30]
Non-Jew borrowing with Interest from a Jew through a Jewish Agent
- If a non-Jew asks a Jew to borrow for him from another Jew with interest the Jewish agent may do his job as long as he says clearly that he is borrowing with interest on behalf of a non-Jew or the transaction is happening in the presence of the non-Jew.[31]
- The agent can't take upon himself responsibility for the capital or the interest. If he takes upon himself responsibility for either one that is considered as though the agent is a borrower and there is interest when the lender takes interest from the borrower.[32] According to Ashkenazim it is only necessary for the Jewish lender to accept responsibility for the loan and collateral after the transaction began, which is the time when the money for the loan was transferred to the agent but not from the time that the collateral was picked up to be delivered to the lender.[33]
- The agent can't take upon himself responsibility for the collateral getting lost or stolen, rather the lender needs to take such responsibility. If he takes upon the regular type of responsibility as a shomer would generally take that is permitted. However, he may not take responsibility for unexpected circumstances.[34] If they didn't specify this responsibility and it was left unclear, after the fact, we can assume that the Jewish lender and the agent would want to arrange it in the permitted fashion.[35]
- If the non-Jew never comes to pay the loan with the interest the agent may not pay it.[36]
- If the non-Jew never comes to pay the loan the lender can sell the collateral and keep the value. The agent can't stop the lender from doing so out of fear of the non-Jew since the lender isn't really incumbent to the agent or the non-Jew.[39] Some say that if the agent was originally appointed by the lender to do this loan with the non-Jew, then if the agent is afraid of the ramifications of the lender selling the collateral, then the lender must listen and if he doesn't then he must pay for damages to the agent.[40]
Lending with Interest from a Non-Jew with a Jewish Agent using a Security Deposit
- Some permit borrowing from a non-Jew with a security deposit so that they can in turn borrow with interest from another Jew with that security deposit. This is permitted since the non-Jew takes responsibility for the original loan and it is treated as two loans and not one. Ashkenazim can rely on this opinion.[41] Others hold that generally this is forbidden to arrange but if one explicitly tells the non-Jew that he has responsibility for the loan then it is permitted.[42] The Jewish borrower must make sure that the security deposit that he gave to the non-Jew was given completely such that the non-Jew could acquire it with a proper kinyan.[43]
- When the non-Jew who lent to a Jew and now comes to borrow from the Jew should borrow in his own name. If he borrows in the name of the first Jew that is certainly interest and is forbidden.[44]
- Even according to the strict opinion, a lender to a non-Jew with interest who collected a deposit from him which came originally from a Jew can collect the interest as long as he isn't certain that it was arranged improperly.[45] Some say that he may not collect the interest if he knew that it was a Jewish security deposit such as if it is a Jewish article of clothing.[46]
- If the original Jew wants to get his security deposit back from the other Jew who lent to the non-Jew and the non-Jew isn't cooperating, the lender Jew doesn't need to work with the borrower Jew since they didn't have any transaction one to another.[47]
- If a Jew has a security deposit of a non-Jew in his hands and the non-Jew directs him to use it to borrow from another Jew with interest on his behalf, the first Jew may do so.[48]
- If a Jew lent from another Jew and got a collateral for that loan, and specified that if the Jew didn’t pay up on time he would either sell the collateral or borrow against it with interest. If he then borrowed against it with interest from a non-Jew, he isn’t responsible to pay the interest for the loan since that was the stipulation. Instead the Jewish borrower needs to pay the interest in order to redeem his collateral.[49]
- If a Jew lent from another Jew and got a collateral for that loan, he can then use that collateral to borrow with interest from a non-Jew. He should specify to the non-Jew that he is borrowing on behalf of another Jew and he has no responsibility. Alternatively, if the collateral is worth the entire value of the loan he can use it to borrow from the non-Jew with interest. Then the original borrower Jew can pay the non-Jew the interest and redeem his collateral. The Jewish lender was simply the agent of the first Jew to borrow with interest from a non-Jew.[50]
- If a Jew wants to borrow from a non-Jew with interest and he asks another Jew to be his agent, he can do so. If he gives him a collateral then it isn’t necessary for the agent to specify that he is borrowing on behalf of someone else since the non-Jew is ready to collect from the collateral.[51] Some say that as long as the collateral is actually worth the value of the loan and interest, then it is automatic that the non-Jew is ready to collect from the collateral and his lien applies to that and not to the Jew.[52]
- If a Jew wants to borrow from a non-Jew with interest and he asks another Jew to be his agent, he can do so. Yet, it is important that the agent specify with the non-Jew that he is indeed borrowing on behalf of another Jew and he bares no responsibility.[53]
- It is an issue if the Jewish agent has any responsibility for the loan even to serve as a guarantor that can be collected from first (Arev Kablan), rather the non-Jew needs to completely be able to collect from the collateral.[54]
- A Jewish agent brought a collateral from a non-Jew to another Jew in order to borrow with interest. After the loan is due, the lender Jew can ask the agent to show him which non-Jew he lent to but can not ask the agent to pay for the asked the agent to redeem the non-Jew’s collateral and pay for the loan.[55]
Non-Jew Borrowed from Jew with Collateral and Jewish Agent
- A Jewish agent brought a collateral from a non-Jew to another Jew in order to borrow with interest. After the loan is due, the lender Jew can ask the agent to show him which non-Jew he lent to but can not ask the agent to pay for the asked the agent to redeem the non-Jew’s collateral and pay for the loan.[56]
Borrowing on Behalf of a Community
- If a few Jewish administrators of a community or communal institution want to borrow with interest from a non-Jew on behalf of the community and then they lent it to the community with interest that is forbidden since ultimately the non-Jew will old the Jewish administrators responsible.[57]
- If an administrator for a community borrows from a non-Jew in order to pay for a communal construction project, according to some, he may be paid back by the community including the interest.[58]
When the Deposit was Taken Forcibly
- If a non-Jew took a security deposit from a Jew forcibly and then used it to borrow with interest from another Jew, that second jew may collect interest from the non-Jew but may not collect interest from the first Jew.[59] Some disagree and allow collecting the interest.[60]
- However, under the following two circumstances one may collect the interest according to everyone:
- If the force and responsibility of the loan rests upon the non-Jew besides for the security deposit then it is permitted to collect the interest from the first Jew.[61]
- Additionally, if the first Jew didn't know that his security deposit was going to be used to borrow from a Jew with interest it isn't any question of interest for him to pay the second Jew the interest to redeem his item.[62]
When the Deposit was Given to the Non-Jew Properly
- If a Jew borrowed from a non-Jew with interest and gave him a security deposit. If the non-Jew takes that deposit and uses it to borrow from another Jew with interest some say that one may not take interest from that transaction, while others say that one can. Generally we are lenient except in the following two circumstances:[63]
- If the non-Jew forcibly took the deposit from the first Jew then we assume that the deposit wasn't really acquired by the non-Jew and so when it is used to borrow against another Jew it is like there's a deal between the two Jews.[64]
- Additionally, if the non-Jew immediately took that deposit from the first Jew and used it to borrow from the second Jew then it appears that he did so only to create a loan between two Jews. However, if he held onto it for some time for himself then it isn't an issue.[65]
Jew Borrowed from Non-Jew and then Non-Jew Borrows from Jew
- If a Jew borrowed from a non-Jew with a collateral and then the non-Jew for his own purposes borrowed from another Jew with the same collateral it is permitted for the second Jew to collect interest from the non-Jew, even if the non-Jew will in turn force the first Jew to pay interest.[66]
Selling Debt
Non-Jew Selling Jew's Debt
- If a Jew owed a non-Jew capital and interest, that non-Jew can sell that debt to another Jew. If the non-Jew collects the interest it is permitted for the Jew to accept it from the non-Jew. If the non-Jew was never paid by the Jewish borrowed, second Jew who bought this debt shouldn't collect the interest from the first Jew.[67]
- It isn't considered actual interest if the non-Jew merely transfers the collection of the loan to a Jew, however, if he actually sells it to him then it is considered as he is the new lender and it is actual interest to collect it.[68]
- It is only problematic for a Jew to buy the Jewish debt from the non-Jew if the interest didn't yet accrue. However, if the interest already accrued and the Jewish borrower owes the non-Jew all of the capital and interest, the non-Jew can sell to the second Jew this loan to collect since it is a sale and not an interest loan at this point.[69]
Non-Jew Selling Non-Jew's Debt
- A Jew lent a non-Jew with interest upon a security deposit of the non-Jew. Then the non-Jew sold the security deposit to another Jew and he was told to pay the debt to the first Jew and collect the security deposit. This transaction is totally permitted since the loan was made between the Jew and non-Jew and then there was a sale of the non-Jewish debt to a Jew.[70]
- However, if the Jew who bought the debt, didn't pay off the debt immediately in order to redeem the deposit and only paid it after some time, thereby accruing a further interest charge upon the non-Jewish lender, the Jew lender may force the non-Jew to pay that interest charge even if the non-Jew in turn will force the Jewish buyer to pay him for that interest charge. But the Jewish buyer may not pay the interest to the Jewish lender because that would paying interest.[71]
Jew Selling Non-Jew's Debt
- If one Jew lent money to a non-Jew with interest he can then sell that loan to another Jew. He should stipulate that this is a complete sale of the loan and they will no longer have any claims upon each other. Thereby the buyer becomes the new lender to the non-Jew and can collect interest.[72] When there is a security deposit from the non-Jew that would have to be transferred to the second Jew with the same stipulation that it is a complete sale and they have no claims upon each other.[73] According to Ashkenazim it isn't necessary to make such a clear stipulation since it is assumed that this is the stipulation.[74]
- A Jew who lent to a non-Jew with interest can sell the non-Jew's loan from a certain date going forward. The first Jew would collect the interest until that date and the second from that date and on.[75]
- A Jew who lent a non-Jew for a certain percent he can sell that loan at a lower percent. For example, if the first Jew lent a non-Jew $100 for 10% a year and then resold that debt to another Jew for 5% a year.[76]
- A Jew who lent a non-Jew money for interest can then resell it to a Jew but he may not sell a portion of that loan to a Jew.[77] Others allow even selling a portion of it.[78]
- A Jew who lent a non-Jew money for interest can't stipulate the buyer resell it to him.[79]
- A Jew who lent a non-Jew money for interest can sell that debt to a Jew but can't stipulate that he'll sell that debt if the Jew also gives him an additional interest free loan.[80]
- The Jew can resell the non-Jew's debt for a lower interest rate than the non-Jew is giving him.[81]
- It is permitted for the buyer of the debt to leave the non-Jew's security deposit in the hands of the original Jewish lender.[82] The responsibility of the security deposit is now upon the second Jew but if they stipulated that the first Jew would have responsibility then he does.[83]
- It is forbidden to say that one wants to borrow from another Jew with interest on or in exchange for a non-Jew’s collateral which was given to the first Jew because of an interest loan,[84] in whatever way the collateral is transferred to the second Jew.[85]
Managing Someone Else's Money
Jewish Money Deposited with Non-Jew Used for Jewish Loan
- If a Jew deposits money with a non-Jew it is permitted for another Jew to borrow from that non-Jew with interest as long as the non-Jew took responsibility to the first Jew like a borrower.[86]
Non-Jewish Money Deposited with Non-Jew Used for Jewish Loan
- Money deposited by a non-Jew with a Jew, if the Jew accepts responsibility for them as a lona, he may not then lend them with interest. However, if he didn’t accept responsibility if he lent them to another Jew he didn’t take interest. Nonetheless, it is generally forbidden to do so since it is suspicious (marit ayin) and appears like taking interest from another Jew.[87]
- The issue of doing something that appears suspicious is avoided when it is well known that the Jew involved is an administrator for the non-Jew’s money and is merely lending the non-Jew’s money and not his own.[88]
Non-Jew Hired by Jew to Lend His Money with Interest
- If a Jew hires a non-Jew to lend out his money with interest to Jews, it is only permitted if the non-Jew is merely an agent and accepts responsibility. Otherwise it is forbidden.[89]
Jew Hired by Non-Jew to Lend His Money with Interest
- If a non-Jew hires a Jew to lend out his money with interest to Jews, it is forbidden if the Jewish employee accepts responsibility as a loan. Even if he doesn’t accept responsibility and technically it is a non-Jewish loan, nonetheless, there is a concern for suspicion (marit ayin) that it appears to be interest between two Jews.[90]
Interest Gifted to A Jew or Non-Jew
- It is forbidden to lend another Jew money in order that he give the interest to a non-Jew.[91]
- It is permitted for a Jew to borrow from a non-Jew even if afterwards the non-Jew gives the interest to a Jew.[92]
Disputes about the Arrangement
- If the borrower claims that his lender charged him interest and now it should be deducted or should be returned, if the lender responds that it was done in a permissible way he is believed without any oath.[93] Some say that it is necessary to specify how it was done permissibly.[94]
- If the borrower claims that his lender charged him interest and it should be deducted from the capital according to the interest he paid and the lender responds that he never took interest he is believed only if he takes an oath.[95]
- This is true as long as the lender already collected the interest. However, if he has a collateral of the borrower or a legal document that entitles him to collect, he can collect after making an oath. If he responds that he didn’t take any interest or doesn’t know if he took any interest, he is believed only if he takes an oath to that effect. This is true as long as the lender already collected the interest, has a collateral of the borrower, or have a legal document that entitles him to collect. However, in absence of that and the lender hasn’t yet collected if the borrower claims that he doesn’t owe the money due to interest he is believed and doesn’t have to pay.[96]
Guarantor
- If a Jew takes an interest loan from a non-Jew it is generally permitted for a Jew to be his guarantor. It would be forbidden for a Jew to be his guarantor if they allowed the lender to collect from the guarantor before collecting from the borrower. However, nowadays it is customary that the lender doesn't ask the guarantor unless he first asks the borrower.[97]
- After the fact, if a Jew was a guarantor for another Jew for an interest loan from a non-Jew when it was specified that the lender would automatically claim the money from the guarantor first, which is forbidden to arrange, any interest that the guarantor paid needs to be returned. However, if it was set up such that the lender could choose to collect from the borrower or the guarantor first, which is also forbidden to arrange, however, after the fact, the money doesn't need to be returned to the guarantor.[98]
- It is permitted to pay a guarantor to be a guarantor.[99] Some question this if the payment seems to take in account the risk that the guarantor assumed in the case he would actually have to pay and only be repaid by the borrower at a later date.[100] Certainly one shouldn't pay a guarantor to be a guarantor whom the lender goes to be paid before he goes to the borrower (Arev Shluf Dutz).[101]
- One may not enter into a guarantor relationship that is forbidden even if doesn't end up paying interest.[102]
- A non-Jew who borrowed from a Jew, another Jew may be a guarantor of the non-Jew if the stipulation is that the lender goes to the borrower to be paid first.[103]
- Some say that if one is only a guarantor on the capital and not the interest one can be a guarantor under any stipulation for a non-Jew who borrowed from a Jew. However, others disagree.[104]
- Some day that if one is only a guarantor on the interest and not the capital one can be a guarantor under any stipulation for a non-Jew who borrowed from a Jew. However, others disagree.[105]
- If the guarantor is a guarantor for the capital or interest alone he may not be the one who delivers the money from the lender to the non-Jew because it appears as interest.[106] This could be alleviated if the guarantor delivers the non-Jew's collateral in exchange for the loan since the responsibility of the loan falls upon the collateral.[107]
- It is problematic to sell a non-Jew's debt to another Jew and at the same time become a guarantor for that loan or even just for the interest.[108]
- For a guarantor to be obligated to pay if he accepted being a guarantor at the time of the loan he doesn't need a kinyan but if he accepted it afterwards he needs a kinyan.[109] Becoming a guarantor on ribbit is always considered like not at the time of the loan and requires a kinyan[110] unless it was combined together with the capital and would have to be paid even if the loan was paid early.[111] Becoming a guarantor to exempt another original guarantor it isn't clear if a kinyan is necessary.[112] If the guarantor is exempting the borrower so that the lender will only collect from the guarantor that is binding without a kinyan.[113]
Resources
Sources
- ↑ Ramban Devarim 23:21 writes that even though it is forbidden to steal from a non-Jew it is permitted to charge them interest for a loan since it is given willingly. Nonetheless, with one's fellow Jew it is forbidden to charge interest since that it is a kindness that the Torah demands us to do. This sentiment is echoed in Sefer Hachinuch (Mitzvah 573). See Ralbag (Toaliyot Vayikra 25:35) who writes that the Torah forbids taking interest because it wants us to stay away from the negative drive of lusting money. In trying to amass wealth a person is tempted to use any ruse possible and to prevent this the Torah forbids a person from taking interest.
- ↑ Vayikra 25:36-37
- ↑ The Gemara Bava Metsia 70b states that it is permitted to charge non-Jews ribbit and there is only a rabbinic prohibition to do so. The reason the rabbis forbade it is that they didn’t want people to learn from the non-Jews by interacting with them too much. They only permitted it for a talmid chacham or someone who needs to make money to survive. This is codified by the Rambam and Rif. However, Tosfot 70b s.v. tashich writes that today we lend with interest to non-Jews for three reasons: 1) we follow the opinion that there’s no rabbinic prohibition to lend to non-Jews at all. 2) Due to the high taxes we have to charge non-Jews interest otherwise financially wouldn’t survive and it is considered necessary for our livelihood. 3) Really based on the reason of the prohibition it is prohibited to do any business with non-Jews and if we didn’t do that we wouldn’t survive. Meiri b”m 70b agrees with reason two. Tur YD 159:1 cites the last reason of Tosfot. Shulchan Aruch and Rama Y.D. 159:1 simply writes that nowadays it is permitted to lend non-Jews with interest.
- ↑ Netivot Shalom YD 159:1:16 writes that today in Israel since it is possible to do without lending non-Jews with interest it is unclear if it is permitted to do so nowadays. Additionally, Rav Moshe Halevi in Malveh Hashem 5:3 writes that Jews who live in Israel should be strict not to lend non-Jews with interest since it is possible to transact with Jews and be financially stable. He explains that none of the reasons of Tosfot apply today except that perhaps we don't hold that there's any prohibition which is rejected. Similarly, Rav Shlomo Mazuz in Kerem Shlomo 159:8 is strict. Rav Ovadia Yosef in Halichot Olam v. 8 p. 4-7 writes that we hold that as long as it is difficult to do business only to Jews it is permitted in accordance with Tosfot, however, we do not hold that once the gezerah stopped applying it is nullified completely.
- ↑ Chut Shani 2:1 p. 39 writes that even nowadays it is permitted to lend a non-Jew with interest even though in Israel we can support ourselves without business to non-Jews. Since there is some business with non-Jews and non-religious Jews the leniencies are still relevant. Chelkat Binyamin 159:10 (written in America) is lenient in all cases. Rav Asher Afello (Asher Chanan 8:46) argues with Malveh Hashem and permits taking interest from non-Jews today in Israel. His reasons are that there are many non-Jews in Israel and many non-religious Jews and it is impossible to avoid business with them. He says that even the minority of people who don't need to do business with non-Jews are nullified by the majority of people. Also, taxes are very high in Israel so it is always considered b'kdey chayav.
- ↑ Chachmat Adam 130:6 writes that any honest man who could avoid taking interest from non-Jews should do so.
- ↑ Chelkat Binyamin 159:1 s.v. vhaidna writes that one doesn’t have to be strict for the Chachmat Adam if one is lending to a bank and one only has to interact with them minimally.
- ↑ Rambam Malveh Vloveh 5:2 explains that they never prohibited it lest one come to learn from their ways since it is normal for a borrower to avoid the lender and not learn from him. Meiri b”m 70b agrees. Chazon Ovadia Shabbat v. 1 p. 7 and Malveh Hashem 5:5 codify this as the halacha.
- ↑ Shulchan Aruch Y.D. 171:1
- ↑ Shulchan Aruch Y.D. 171:1
- ↑ Shulchan Aruch Y.D. 159:2. Bet Yosef quotes this ruling from Nemukei Yosef, Rabbenu Tam, Ramban, Tan, Baal Hatrumot, Rabbenu Elchanan, Tosfot, Hagahmot Maimoniyot, Tur, and Rosh. However, Rashi and Rabbenu Shmuel disagreed and held it was forbidden to take interest from a non-religious Jew who worships avoda zara. The reasons for why it is permitted to take interest are: (1) Rabbenu Tam explained דקי"ל דמומרין לע"ז היו מורידין ולא מעליו וכיון גופו כן ממונו לא כל שכן. (2) Ramban explains that since they are not religious they aren't considered a religious Jew's brother and the Torah specifies that one may not take interest from one's brother.
- ↑ Rama 159:2
- ↑ Shulchan Aruch Y.D. 159:2
- ↑ Shulchan Aruch and Rama 159:3 forbid lending with ribbit to someone who is a tinok shenishba. Gemara Shabbat 68b clarifies that a child who was captive among non-Jews (tinok shenishba) and didn't know about Shabbat is considered as though he sinned unintentionally. Brit Yehuda 30:12 agree. Rambam Mamrim 3:3 writes that the sons of the karaites who were brought up with the mistakes of their parents aren't considered minim but should be returned in teshuva. (Yet, see the manuscript editions which include another few words that alter the meaning of the Rambam.) Pirush Mishnayot Chullin 1:2 writes that someone who reject tenants of our faith are considered minim. However, someone who was born into a family and background with such thoughts aren't culpable and are similar to a tinok shenishba. Binyan Tzion Chadashot 23 posits that many of the non-religious Jews today are considered tinok shenishba since they're following the ways of their fathers.
- Chazon Ish YD 1:6 writes that once we try to teach him about the Orthodox ways and he turns it down he is considered to be a mumar. The amount of effort necessary to spend in trying to teach him is subjective and is left up to the judgement of the rabbis of each generation. Additionally, once he is aware of the Orthodox Jews and practices even without trying to teach him he can be considered a mumar. However, that too depends on how aware he was of the Orthodox Jews and to what degree and with what intensity his parents taught his otherwise. This is the basis for the dispute whether Karaites are mumarim.
- Radvaz (cited by Pitchei Teshuva 159:7) writes that if there is a doubt if someone is a non-Jew or a non-religious Jew it is permitted to lend them with interest.
- ↑ Igrot Moshe 4:91:6, Chelkat Binyamin 159:22
- ↑ Shulchan Aruch Y.D. 159:3. Bet Yosef 159:3 cites the Pirush Mishnayot Chullin 1:2 where the Rambam says that karaites are like tinok shenishba and it is forbidden to lend them with interest. Bet Yosef points out that the Nemukei Yosef 42b quotes the Ri who says that anyone who once recognized Orthodox Jews isn’t a tinok shenishba disagrees with this Rambam. Shulchan Aruch follows the Rambam. However, the Shach 159:6 cites the Maharshal, Maharnach 113, Rash quoted by Mabit 1:38, and Radvaz (in Teshuvot Rav Betzalel Ashkenazi 3) who are strict. Nekudat Hakesef he writes that the halacha on this matter is unresolved. Chelkat Binyamin 159:21 concludes with the Graz who is strict.
- ↑ Shulchan Aruch Y.D. 168:1
- ↑ Although Shulchan Aruch 168:3 hold that it is sufficient for the non-Jew to state that you can leave the money in a certain location for the second Jew and it is understood that he is exempt from the loan obligation, Shach 168:7, Taz 168:3, and Gra 168:6 all hold that it is necessary to state so explicitly.
- ↑ Shulchan Aruch Y.D. 168:3
- ↑ Shulchan Aruch Y.D. 168:2
- ↑ Shulchan Aruch Y.D. 168:1
- ↑ Gemara Bava Metsia 71b, Shulchan Aruch Y.D. 168:6
- ↑ Rashi Bava Metsia 71b s.v. v'im explains that the conclusion of the Gemara was that there is a concept of agency for two Jews to create a loan between them with interest. This is rabbinically forbidden. This is the opinion of the Rif, Ramban, Rashba, Ran, and Nemukei Yosef all cited by the Bet Yosef 168:6. The Rambam Malveh Vloveh 5:4 however holds it is biblically forbidden. On the other hand, Rabbenu Tam held that the gemara backed out of that stringency and so it is permitted. Rosh responsa 108:11 ponders how someone could possibly rule like Rabbenu Tam when it seems that it is forbidden and Rabbenu Tam brought no proofs. Either way, there the Rosh rejects following Rabbenu Tam initially. He is aware of the practice of some people to follow Rabbenu Tam but he argues that it is incorrect and the lender could only accept the interest if he is unaware that the non-Jew is borrowing the money for the other Jew.
- ↑ Shulchan Aruch Y.D. 168:6 completely rejects Rabbenu Tam's opinion. Rama 168:5 and 7 cites Rabbenu Tam however he says that one should only follow that opinion where there is a minhag. Chelkat Binyamin 168:51 writes that we don't follow the Rabbenu Tam since it is a question of biblical interest.
- ↑ Rashba teshuva 3:243 writes that it is forbidden to lend your money to him in order that he lend it to another Jew with interest since that is a mere legal fiction and is considered taking interest. Also, there is a concept of shelichut for a non-Jew to be considered a shelichut for purposes of being strict. That is, the rabbis view this transaction as though the non-Jew is an agent of the Jews and it is a loan between two Jews. Shulchan Aruch Y.D. 168:5 rule like the Rashba. The Shach 168:10 points out that the Rama would agree as well. Malveh Hashem 1:5:12 agrees. However, the Netivot Shalom 168:5:5 argues at length that the Rama never accepted this approach of the Rashba who expanded the concept of legal fictions for ribbit. The entire concept of Rabbenu Tam who allowed having a non-Jewish agent to arrange the loan with interest or Rashi's opinion who allowed a Jewish agent to arrange the loan with interest, both of which are cited by the Rama indicate that he was not concerned with the expansions of the Rashba. This is further supported by the fact that the Rama 168:5 implies that the reason for Shulchan Aruch is completely other than the reason of making a legal fiction out of taking interest. Netivot Shalom brings sources that show that there's a fundamental dispute of how far reaching is prohibition of using legal loopholes in interest (haramat ribbit) between the Maharam and Rashba. Netivot Shalom 166:6:13 extends this discussion to that of using a heter iska and the Gra's opinion that it violates haramat ribbit.
- ↑ Netivot Shalom 168:5:6 explains that the haramat ribbit that the Rashba was discussing was because the real intention of the parties was to create a loan between the two Jews and so it is completely ribbit, which is forbidden even after the fact. However, the Malveh Hashem 1:5:12 writes that this haramat ribit of the Rashba is purely legal fiction that is valid, though it is forbidden to arrange. Therefore, if it was already collected certainly it doesn't need to be returned.
- ↑ Shulchan Aruch Y.D. 168:7
- ↑ *Derisha 168:4 explains that it is absolutely forbidden for the lender to make the borrower pay the interest since it is forbidden for the borrower to pay it, however, it already happened then the lender can keep it.
- Shach 168:17 argues that it is permitted for the lender to make the borrower pay the interest since it was done without his knowledge and in such a case it isn't really forbidden for the borrower with respect to the lender. Chelkat Binyamin 168:55 and 57 rules like the Shach and explains that once the lender wasn't aware of the appointment of the non-Jew by the borrower it isn't forbidden for the borrower to pay the interest. The only aspect that was forbidden is the arrangement of the loan.
- Netivot Shalom 168:7:6 writes that the Teshuvat Ri doesn't imply like the Derisha at all. Netivot Shalom 168:7:6 reads the Bet Yosef in accordance with the Derisha. However, the Chelkat Binyamin (168 Tziyunim 136) argues that the Bet Yosef held like the Shach.
- ↑ Horah Brurah 168:31. There he mentions the idea that the Bet Yosef suggests which is if the lender doesn't know from witnesses that the borrower appointed the non-Jew to be his agent and the borrower himself since he didn't appoint the non-Jew then the lender could collect the interest. Horah Brurah concludes that one may only rely upon this after the fact.
- ↑ Mordechai b"m 337, Shulchan Aruch Y.D. 168:8. Shach 168:19 and Taz 168:9 argue that just like the lender can collect the interest the borrower can pay it. However, it appears from the Bet Yosef that only the lender can collect it but it is forbidden for the lender to collect it. Horah Brurah 168:34 and Chelkat Binyamin 168:61 follows the Shach and Taz that if the non-Jew didn't follow the orders of the borrower it is then permitted for both the lender and borrower to exchange the interest at the end.
- ↑ Ran b"m 71b s.v. mahu, Nemukei Yosef 42a, Hagaot Ashri 5:42, Rosh responsa 108:5, Raavan 103, and Smak 260 all cited by Bet Yosef 168:13. Baal Hatrumot 46:4:10 citing Ramban b"m 71b s.v. vgoy explains that even though the Jewish agent can't halachically become the agent of the non-Jew since there's no agency for non-Jews, the Jewish agent can be the agent of the lender.
- ↑ Shulchan Aruch 168:13. Bet Yosef 168:13 s.v. vda deliberates whether it is problematic to accept responsibility for the capital and not the interest or the interest and not the capital. Ultimately he says that the Tur clearly understood that the Jewish agent may not accept responsibility for either.
- ↑ Darkei Moshe 168:12 clearly thinks that it is unnecessary for the lender to accept responsibility from the time of the collection of the collateral in order to be delivered since the loan didn't begin. Though he agrees that he should accept responsibility from the time that the agent accepted the money in order to return it to the non-Jewish borrower. Shach 168:37 and Taz 168:18 agree with the Darkei Moshe against the Bet Yosef.
- ↑ Shulchan Aruch Y.D. 168:16 based on the Rosh in disagreement with the Ramah who allowed taking even responsibility for unexpected events.
- ↑ Shach 168:36 citing Bach, Baal Hatrumot 46:4:10 citing Ramban
- ↑ Shulchan Aruch Y.D. 168:14
- ↑ Rama 168:14, Shach 168:47, Taz 168:20, Bach 168:15, Chelkat Binyamin 168:148. According to the Taz this is even the opinion of Shulchan Aruch, but according to the Shach and Bach this is only the opinion of the Rama and Shulchan Aruch would disagree.
- ↑ Rama 168:14, Shach 168:47, Taz 168:20, Bach 168:15
- ↑ Shulchan Aruch Y.D. 168:15, Rosh responsa 108:6
- ↑ Levush 168:15, Shach 168:50, Chelkat Binyamin 168:156. The explanation of the Levush is that essentially since the agent isn't a borrower he can tell the lender to do or not do something and that poses no issue. The lender should be cautious of the damages that can occur to the agent, however, if the agent arranged with the non-Jew and not the lender, then the lender doesn't have to be concerned. It is the responsibility of the agent. If the agent was originated commissioned by the Jewish lender then it is a concern for the lender that he doesn't cause a damage to the agent. The Taz 168:20 and Bet Meir disagree with the Levush. They hold that the lender doesn't have to listen to the agent in any event. They explain that the source for this halacha is the Rosh and he held that the borrower shouldn't take any responsibility for the collateral and yet he writes that he doesn't need to listen to the agent. Shach in Nekudat Hakesef 168:14 answers that these are two separate statements of the Rosh. The Bet Meir doesn't understand the Shach since the Rosh either way would discuss a permissible case according to his opinion.
- ↑ Ri cited by Rosh b"m 5:55, Rosh responsa 108:11, Rama 168:8 seems to support this approach. Darkei Moshe 168:4 quotes the Mordechai and Hagahot Ashri who held that it is permitted even initially. Darkei Moshe 168:9 cites the Kol Bo 84 and Hagahot Maimoniyot Malveh 5:3 who says that the minhag was like the Ri
- ↑ Ramban b"m 71b s.v. vbar cited by Tur 168:9, Rashba 7:321, Nemukei Yosef 42a, Talmidei Harashba, and Baal Hatrumot 46:4:10 s.v. vkatav alav haramban cited by Bet Yosef 168:9
- ↑ Shach 168:20 writes that one needs to make sure that the non-Jew acquired the collateral with a kinyan such as meshicha, pulling it. Chelkat Binyamin 168:63 and 65 explains that there's two approaches for the case of a Jew who borrowed from a non-Jew who in turn borrows from a Jew when there's a collateral. The Gra and Levush say that the collateral doesn't add or detract anything, it all depends on whether the non-Jew was an agent of the original Jew in which case it is forbidden and if not it is permitted. The Shach, Taz, and Chavot Daat 168:12 however, hold that the collateral of the Jew can serve as a Arev Kablan, guarantor for the non-Jew from the original Jew and that is a problem. Another words, since the original Jew's property is held responsible for the interest loan of a non-Jew to the second Jew, it is as though the original Jew is the guarantor of that interest loan. In Shulchan Aruch Y.D. 170:2 it is codified that a Jew may not be a guarantor of a non-Jew's interest loan from a Jew. Therefore, the way to solve that issue is by having the original Jew completely allow the non-Jew to acquire the collateral and his transactions with it afterwards are separate from him. (See Talmidei Harashba cited by Bet Yosef 168:9 who is unconcerned for the collateral being a guarantor since it is considered a Arev Stam.)
- ↑ Chelkat Binyamin 168:65 and 53 based on Shach 168:34, Chavot Daat 168:10, and Shulchan Aruch Y.D. 168:21. In the rishonim this can be substantiated by Rosh 108:11 and Nemukei Yosef 42a.
- ↑ Ri, Rosh, Shulchan Aruch 168:9. Chelkat Binyamin 168:63 explains that essentially there's two schools of thought regarding a loan with a security deposit from one Jew to another Jew with a non-Jew in between. The Gra and Levush understand that this depends on whether one may set up a non-Jew agent between two Jews who are transacting with interest. The Shach, Taz 168:14, and Chavot Daat 168:12, on the other hand, think that the security deposit poses its own problem in that it functionally creates a lien of the Jewish lender upon the original borrower Jew. This could be solved if the non-Jew acquired the deposit from the non-Jew in an absolute fashion.
- ↑ Tur 189:9, Shulchan Aruch 168:9. Bet Yosef 168:9 s.v. yisrael shnatan notes that the Mordechai 338 held within the opinion of Rabbenu Tam that it doesn't matter whether the deposit was clearly Jewish or not.
- ↑ Rosh responsa 108:8, Rama 168:9
- ↑ Mordechai 337 writes that a Jew can use a non-Jew's security deposit to borrow from a Jew with interest if he is instructed so by the non-Jew. The Mordechai seems to apply this even to the case where the Jew didn't have the non-Jew's deposit but instead wanted to gift him a deposit of his own for its value. The Bet Yosef is troubled by this leniency since there's no mechanism by which the non-Jew is actually acquiring the deposit. Taz 168:14 gives a nuanced explanation that it was sold to the second Jew with a condition that the non-Jew could buy it back. Bach 168:13 and Nekudat Hakesef 168:11 explain that once a owner admits to the fact someone else owns his item it halachically belongs to that person (kinyan odita) and that is sufficient to remove the prohibition of ribbit. Either way, the Rama 169:11 concludes that we assume that it is impossible to gift a deposit to a non-Jew without him making a physical kinyan such as meshicha.
- ↑ Rashba responsa cited by Bet Yosef 168:26 explains that once they stipulated that the lender Jew can borrow with interest against the collateral we understand that to mean that the lender Jew isn’t borrowing from the non-Jew for himself, rather he is doing so as an agent of the other Jew. Therefore, the borrower Jew can repay the interest to the non-Jew and it isn’t interest to the lender Jew since he is neither a lender or a guarantor of the loan, he is simply the agent. Shaar Mishpat 168:13 cites this Rashba but also cites the Maharit YD 46 based on the Maharam who argues that it is an asmachta and isn't binding. Therefore, the lender couldn't lend to the non-Jew with interest on that collateral. Shulchan Gavoha 168:50 cites this Rashba and fundamentally puts it in the same camp as the Rosh which is codified by Shulchan Aruch 168:26. Kovetz Halichot Horah Ribbit v. 5 p. 316-7 explains that it is necessary for the Rashba and Ramban 71a that the lender Jew be the agent of the original borrower as well as the fact that the non-Jew is collecting from the collateral. The reason is that if it was simply that the non-Jew would collect from the collateral but the Jewish lender was never appointed as an agent then he is in essence borrowing for himself with interest and having another Jew repay his interest using his collateral.
- ↑ Tashbetz Katan 486 writes that if the Jewish lender specifies to the non-Jew that he is borrowing on behalf of another Jew it is permitted, otherwise it is like he is borrowing for himself and having the original borrower Jew pay the interest is forbidden. Yet, the Bet Yosef 168:26 points out that the Rosh implies that it is permitted for the original borrower to pay the interest even if the lender Jew didn’t make that stipulation. Shulchan Aruch 168:26 simply quotes the case without specifically mentioning that stipulation. Shach 168:82 explains that the Tashbetz Katan and Rosh agree. Either a stipulation is necessary or having a collateral that is worth the entire value of the loan and interest. Otherwise it is forbidden. Chelkat Binyamin 168:291 agrees. Mayin Ganim Abadi YD 9 shows at length that the Bet Yosef thought that there is a dispute between the Tashbetz Katan and Rosh. The Rosh thinks that even without specifying it is assumed that the non-Jew depends on the collateral and there’s no responsibility upon the Jew. However, the Tashbetz Katan thinks that only if the Jew specifies that is it so, otherwise we assume that the non-Jew will hold responsible the Jew who is borrowing from him as well as from the collateral, in which case it would be forbidden for the original borrower to pay the interest. Erech Lechem 168:17 implies this as well. He explains that the Ran cited in Shulchan Aruch 168:17 implies like the Tashbetz Katan, yet, Shulchan Aruch ultimately sided with the Rosh and Rashba unlike the Tashbetz Katan and Ran.
- ↑ Rosh b”m 5:56, Tur and Shulchan Aruch 168:17. Bet Yosef 168:17 based on the Nemukei Yosef 44a clarifies that it is insufficient to say that the collateral serves as the place where the non-Jew can collect, rather he needs even to specify that he bares no responsibility. Shach 168:52 cites this opinion. Shulchan Aruch 170:1 follows that opinion.
- ↑ Shach 168:51
- ↑ Tur and Shulchan Aruch 168:17
- ↑ Bet Yosef 168:17 cites the Ran (Nemukei Yosef 42a) who holds that it is forbidden to be an Arev Kablan for another Jew.
- ↑ Bet Yosef 168:27 cites the Rashba 3:47 who speaks of a case where a Jew brought a collateral from a non-Jew to another Jew in order to borrow with interest, then the lender Jew asked the agent to redeem the non-Jew’s collateral and pay for the loan. The Rashba rules that it is forbidden for the agent Jew to pay the loan and interest since he is merely an agent. He must though indicate to the lender Jew who is the non-Jew who borrowed the money. Shulchan Aruch YD 168:27 codifies the Rashba. Shach 168:83 explains that the agent has no responsibility to sell or buy the collateral from the lender.
- ↑ Bet Yosef 168:27 cites the Rashba 3:47 who speaks of a case where a Jew brought a collateral from a non-Jew to another Jew in order to borrow with interest, then the lender Jew asked the agent to redeem the non-Jew’s collateral and pay for the loan. The Rashba rules that it is forbidden for the agent Jew to pay the loan and interest since he is merely an agent. He must though indicate to the lender Jew who is the non-Jew who borrowed the money. Shulchan Aruch YD 168:27 codifies the Rashba. Shach 168:83 explains that the agent has no responsibility to sell or buy the collateral from the lender.
- ↑ Rashba responsa 5:259 writes that he heard that in many communities they will have the administrators of a community borrow with interest from a non-Jew on behalf of the community and then he lends it out with interest to the rest of the congregation. Rashba writes vehemently that there is nothing to rely upon. Rama 168:17 ambiguously quotes this practice without endorsing it or dismissing it.
- ↑ Pitchei Teshuva 168:4 cites Chatom Sofer YD 135 who writes that once an administrator of the community borrowed from a non-Jew with interest for building a communal building for guests. Then he charged the community to each pay their share of the cost. He cites the Ranach 58 who permitted a contractor who borrowed with interest from non-Jews to be repaid by the community since they are essentially paying for the building and not interest for a loan.
- ↑ Smak 260, Kol Bo 84, Mordechai 338 citing Riva, Baal Hatrumot 46:4:10 all quoted by the Bet Yosef 168:10
- ↑ Rosh cited by Tur 168:10
- ↑ Bet Yosef 168:10 based on the Baal Hatrumot
- ↑ Maharik 16 cited by Bet Yosef 168:10
- ↑ Shulchan Aruch 168:10, 20
- ↑ Bet Yosef 168:10 in his second answer, Shach 168:26, 67, Taz 168:11. Gra 168:23 disagrees.
- ↑ Bet Yosef 168:10 in his first answer, Shach 168:67
- ↑ Tur 168:20 quotes the Baal Haitur that if a Jew borrowed from a non-Jew with a collateral and now the non-Jew is borrowing from another Jew with the same collateral the second Jew may not accept the interest from the non-Jew since it is as though it is coming from the Jew. However, the Rosh Pesachim 2:10 and Rashba 3:229 disagree. Once the Jew borrows from the non-Jew it is completely permitted and if the non-Jew then borrows from another Jew that is disconnected. The Bet Yosef 168:20 cites the Ran b”m 71b s.v. veharamban and Baal Hatrumot 46:4:10 who side with the Baal Haitur. Yet, the Baal Hatrumot adds that if the non-Jew accepts responsibility for the loan he’s taking from the second Jew it is permitted. Shulchan Aruch 168:20 cites the Rosh and Rashba as the main opinion and the Baal Haitur as some say.
- ↑ Rashba responsa 1:764 cited by Darkei Moshe 168:6, Bedek Habayit 168:27, Rama 168:10 and Knesset Hagedola (Bet Yosef 168:44).
- ↑ Taz 168:12. See Darkei Teshuva 168:38 who discusses whether this would constitute a biblical or rabbinic prohibition. Nekudat Hakesef (on Taz 168:12) argues that if the transaction is only effective in non-Jewish law and not in halacha, it isn't a problem of interest. Chelkat Binyamin 66:10 s.v. vhaakum p. 313 questions this Shach based on CM 66:25 that clearly implies that any acquisition of a debt that is recognized by non-Jewish law is also accepted by Jewish law.
- ↑ Taz 168:12. Even though the Nekudat Hakesef on Taz 168:12 is strict, the Chelkat Binyamin 168:93 writes that one can be lenient on this question.
- ↑ Rosh responsa 108:25, Shulchan Aruch 168:12
- ↑ Rosh responsa 108:25, Shulchan Aruch 168:12
- ↑ Shulchan Aruch 168:18. When there is no security deposit, the Shach 168:62 explains that the mechanism isn't exactly a sale since one can't really sell the debt to another Jew. Rather one is forgiving the non-Jew from paying him back. Then the non-Jew can pay the second Jew as he is "considered" according to their intention to be the new lender. In Shach 168:63 he clarifies that he doesn't need to inform the non-Jew of that which he forgave. Netivot Shalom 168:18:9 explains that even though the non-Jew will be paying the second Jew in error he can collect it. Shach 168:63 is in disagreement with the Bach who thinks that it is necessary to alert the non-Jew. See Chavot Daat 168:41 who endorses another approach; he explains that this transaction is a sale with respect to non-Jews and purely forgiving a loan with respect to Jews. Therefore, he concludes that the first Jew may not go and reacquire the loan from the non-Jew that he forgave. However, it seems Chelkat Binyamin p. 313 would challenge this from C.M. 66:25.
- ↑ Shulchan Aruch Y.D. 168:18
- ↑ Rama 168:18 following the Mordechai and Rosh teshuva
- ↑ Tur 168:18
- ↑ Rama 168:18, Chelkat Binyamin 168:204
- ↑ Shach (Nekudat Hakesef on Taz 168:28) and Derisha 168:16
- ↑ Taz 168:18, Chavot Daat Chidushim 168:53. This is also the implication of the Trumat Hadeshen 303, Bet Yosef 168:18 s.v. vkatuv, and Darkei Moshe 168:16. Chelkat Binyamin 168:204 cites both opinions.
- ↑ Although the Rama 168:18 is lenient, both the Shach 168:57 and Taz 168:27 disagree.
- ↑ The Taz 168:24 in disagreeing with the Levush forbids this. Shach in Nekudat Hakesef and Chachmat Adam cited by Chelkat Binyamin 168:151 are lenient. Netivot Shalom 168:18:14:1 questions the Shach from Shulchan Aruch 166:3 and answers it. Chavot Daat 168:34 forbids because of Shulchan Aruch 160:23 and 172:4. Chelkat Binyamin thinks that even the Shach accepts part of the argument of the Chavot Daat and would forbid anytime that sale of the debt is at a lower price because of the fact that he is also receiving an interest free loan.
- ↑ Rama 168:18
- ↑ Rama 168:18 clarifies that it is sufficient for the sale of the loan to be effective when the buyer pays for the loan even if he isn't transferred the loan document or the collateral and doesn't do another kinyan. It is evident in the Darkei Moshe 168:17 and Chavot Daat 168:37 that selling a non-Jew's debt is ineffective with merely paying for the debt, the loan document physically needs to be transferred. However, when a collateral is involved it is sufficient to pay for it. Chelkat Binyamin 168:214 clarifies that one should be explicit that one is selling the collateral wherever it is. Ideally, the Rama concludes, one should use a kinyan to sell the collateral and not rely on the payment alone. The Chelkat Binyamin 168:215 explains that meshicha or sudar are good forms of kinyan.
- ↑ Bet Yosef 168:18 s.v. vkatuv, Rama 168:18, Chavot Daat 168:37. Shach 168:58 notes that in such a case it is necessary to do a formal sale of the loan in order for him to leave the security deposit with the first Jew.
- ↑ Rosh responsa 108:28 writes that if a Jew who lent to a non-Jew with interest asks another Jew to lend him money with interest on the collateral he received from the non-Jew that is considered taking interest. Tur and Shulchan Aruch Y.D. 168:19 codify the Rosh. What exactly is the issue with this formulation? The Shach 168:64 contends that as long as one says that one wants to borrow from another Jew with interest on a non-Jewish collateral we can’t reinterepert his words and since he said he wanted to borrow with interest that is how we view his transaction. However, if he wouldn’t explain the transaction at all, we would explain him to mean that he intended to buy it since we’d prefer to say he did something permitted. Chelkat Binyamin 168:236 sides with the Shach. He explains that there’s a fundamental difference between a sale and a loan. A sale is where the first Jew is completely removed from any dealings with the non-Jew and if he collects anything from the non-Jew he must give it to the second Jew. A loan is where the first Jew must pay the second Jew whether or not the non-Jew will pay. The Bach 168:26 disagrees and explains that there is a minhag to be lenient even if one says that one intends to borrow because we reinterpret it to mean to buy. Taz 168:28 seems to agree. The Bet Yosef and Taz imply that the reason for the Rosh isn’t because of his incriminating words but rather because of his motivation. If the Jewish lender would have borrowed on that collateral for the benefit of the non-Jew it wouldn’t be considered a Jewish loan. However, as long as the motivation is for the needs of the Jew we understand that transaction between the two Jews to be a loan and not a sale.
- ↑ Shach 168:64 concludes that this issue of stating that one wants to borrow from a Jew with interest on the collateral of a non-Jew is only a problem if the first Jew owes the non-Jew's collateral such as if the non-Jew stated that it was his retroactively from the time of the loan if it goes unpaid, however, if he doesn't have that ownership and he transfers the collateral to the other Jew it is permitted. Chavot Daat 168:41 and Rabbi Akiva Eiger on Shach 168:64 disagree. Chelkat Binyamin Biurim 168:19 s.v. vamar p. 367 answers their question.
- ↑ The Tosefta b”m 5:8 states that if a Jew deposited money with a non-Jew if the non-Jew took responsibility for it then he can lend it to another Jew with interest. Although the Baal Hatrumot 1:46:2:6 quotes someone who held we don’t follow the Tosefta, in 7:1 he writes that we do follow the Tosefta. Also, the Rosh b”m 5:56 and Tur and Shulchan Aruch Y.D. 168:21 codify it. Bet Yosef 168:21 isn’t certain what is the definition of the amount of responsibility that the non-Jew must accept in order to permit this. Does it mean that the non-Jew has responsibility like a watchman or does he need to take responsibility like a borrower who even if it is lost is obligated? He quotes the Baal Hatrumot assumed it was the latter. Shach 168:68 and Taz 168:31 agree.
- ↑ The Tosefta b”m 5:8 states that if a non-Jew deposited money with a Jew he can lend it to another Jew with interest if the first Jew doesn’t have responsibility for the loan. The Bet Yosef 168:22 quotes the Baal Hatrumot 7:1 who explains that if the Jew has responsibility for the loan if it isn’t paid up that is a problem, however, if he merely accepts responsibility to pay while it is in his domain that is permissible since if something happens he can pay and there was no loan at all. Shach 168:69 and Taz 168:33 agree. Nonetheless, even in the first case, the Tur 168:23 writes that there is a problem because people will suspect that the first Jew is lending his own money to another Jew with interest.
- ↑ Ran b”m 61b s.v. ani cited by Bet Yosef 168:23 writes that if a Jew is appointed a financial administrator over the non-Jew’s money he no longer has to be concerned with marit ayin since people won’t suspect him of lending his own money. Talmidei Harashba similarly holds that if it is the Jew’s profession to deal with the non-Jew’s money then there’s no suspicion. Baal Hatrumot 7:1 in fact only requires that the lender express to the borrower that it isn’t his own money. Rama 168:23 and Shach 168:71 accept the Ran and Talmidei Harashba, not the Baal Hatrumot.
- ↑ The Tur 168:23 extends the cases of the Tosefta to include cases of where a Jew hires a non-Jew to lend his money out with interest. Again, it all depends on who takes the responsibility for the loan. Shulchan Aruch 168:23 codifies this.
- ↑ Tur and Shulchan Aruch 168:23
- ↑ Shulchan Aruch Y.D. 168:1
- ↑ Shulchan Aruch Y.D. 168:4
- ↑ Shulchan Aruch Y.D. 177:9, 177:12, Rama 160:18. The Taz 177:19 and Shach 177:27 explain that the reason for this is that we assume that it was done in a permissible fashion rather than a forbidden one. Although Taz 177:17 is troubled by this halacha of why it is worded regarding orphans, Shach 160:30 explains that there is no difference between whether the lender is an orphan or not; rather the question asked of the Rashba was with respect to orphans. If the lender responds that it was done in a permitted way then he is believed, and if he denies getting interest he is believed with an oath.
- ↑ Taz 168:36. See Shaarei Deah 168:11 who differs.
- ↑ Shulchan Aruch Y.D. 168:25, 177:11. The reason is that since the lender says that he never took the interest we can't assume that it was taken but taken in a permitted way. We have to substantiate the claim that he denies getting the interest. Therefore, he is obligated to take a shevuat hesit which is obligated by anyone who denies money. Although the Rabbenu Yerucham quotes the Ramah who doesn't require a shevuah even in such a case, the Shach 177:26 clarifies that we follow the main opinion in Shulchan Aruch and Rama.
- ↑ Shulchan Aruch and Rama Y.D. 168:25
- ↑ Gemara Bava Metsia 71b, Shulchan Aruch and Rama Y.D. 170:1. There are three types of guarantors: 1) Arev Shluf Dutz - A guarantor whom the lender goes to first. 2) Arev Kablan - A guarantor whom the lender can choose to go to first. 3) Arev Stam - A guarantor whom the lender can't collect from until he tries to collect from the borrower. In the days of the gemara, the non-Jewish practice was that a standard guarantor was a guarantor that was a Arev Shluf Dutz (Rashba) or Arev Kablan (Rashi). The gemara indicates that this is problematic for a Jew to be for another Jew when borrowing from a non-Jew. However, if the non-Jew would agree to follow the Jewish practice which was that the guarantor would be a Arev Kablan or Arev Stam then it is permitted. Shulchan Aruch and Rama 170:1 follow Rashi initially but after the fact like the Rashba. The Tur and Rama 170:1 comment that today the non-Jewish practice is that a standard guarantor is an Arev Stam, therefore generally it is permitted to be an guarantor for a Jew who borrowed with interest from a non-Jew.
- The Baal HaItur (Iska 14d cited by Bet Yosef 170:1) permits when the non-Jew lent money to the Jew and there's another Jew who is a guarantor of any kind. It seems that he learned that the gemara only forbade when the non-Jew borrowed from the Jew and the Jew is a guarantor of the non-Jew. This opinion is completely outvoted by the Rashi, Rashba, Ran, Nemukei Yosef, Baal Hatrumot, and Tur all cited by the Bet Yosef 170:1.
- ↑ Shulchan Aruch and Rama Y.D. 170:1, Taz 170:1. The Bet Yosef explains that in cases where it is a dispute between Rashi and Rashba after the fact one doesn't have to pay because they can rely upon the Rashba. The Darkei Moshe argues that in all cases one doesn't have to return the interest after the fact since it is only rabbinic interest. Taz 170:1 rejects the opinion of the Darkei Moshe arguing that the Gemara makes it clear that it is a biblical prohibition. Shach 170:2 defends the Rama that it would be rabbinic if the Arev isn't a Arev Shluf Dutz or a guarantor of a non-Jew borrowing from a Jew.
- ↑ Taz 170:3, Nekudat Hakesef 170:2. The Taz explains that one isn't paying for the fact that the Arev is going to lend one money if he ends up paying on his behalf, rather one is merely paying so that he should ensure my loan.
- ↑ Chelkat Binyamin Biurim 170:1 p. 388 s.v. hari. Chavot Daat 170:1 does not allow paying the guarantor to be a guarantor.
- ↑ Taz 170:3 forbids, while Shach in Nekudat Hakesef 170:2 questions it. Chavot Daat 170:1 is strict. Chelkat Binyamin 170:12 for an Erev Kablan cites the dispute but sounds like many are lenient, while for Arev Shluf Dutz only writes that many forbid it.
- ↑ Can you arrange to be a guarantor that is forbidden if you don't end up paying interest? Nekudat Hakesef 170:3 implies that there's no prohibition. Taz 170:5 disagrees. Bet Meir 170 questions the Nekudat Hakesef. Most achronim disagree with the Shach, primarily because the Gemara Bava Metsia 75b and 71b strongly imply that there is a biblical prohibition to arrange to be a guarantor that is forbidden. Some answer that the Nekudat Hakesef would limit the gemara to cases where the guarantor is a for a Jew who is borrowing with interest from a Jew and not from a non-Jew (Mishnat Shmuel Arvut Bribit p. 26, Dvar Shalom Ribit Horovitz p. 304). Others answer that the Nekudat Hakesef would be limited to a guarantor that is only rabbinically forbidden such as a Arev Kablan but not an Arev Shluf Dutz (Neitvot Moshe on Taz 170:5 citing Shevilei Dovid and R' Aryeh Leib). Shaar Deah 170:5 disagrees with the Nekudat Hakesef and proves it from the Raavan. Either way, most argue with the Nekudat Hakesef (Brit Yehuda ch. 1 fnt. 33).
- ↑ Bet Yosef 170:1 clarifies that everyone agrees that for a non-Jew who borrows from a Jew one may not be an Arev Shluf Dutz, one may be a Arev Stam, and there's a dispute between Rashi and Rashba whether one can be an Arev Kablan. Ran holds that even those who subscribe to the Rashba in the case of a Jew who borrowed from a non-Jew agree when the non-Jew borrows from a Jew that they agree with Rashi that one may not be an Arev Kablan. Bet Yosef 170:1 favors the view of the Rashba (teshuva meyucheset lramban 223) who holds in either case of a non-Jew lending or borrowing from a Jew one can be an Arev Kablan, though initially we follow Rashi. Shach sides with the Ran. Rabbi Akiva Eiger (on Shach 170:3) mentions that the Rashba disagrees.
- Raavan teshuva 104 explains if someone was a guarantor for a non-Jew who borrowed from a Jew with interest he doesn't have to pay the interest since there's no binding kinyan by which he is obliged to pay the interest. Even though every guarantor is obligated with his speech even without a kinyan, that only applies to the capital and not the interest which didn't yet accrue. It also seems to be an asmachta for the guarantor to pay the interest. In terms of actual ribbit, the Raavan isn't concerned if the guarantor of any kind would pay for the interest to the lender since he isn't considered the borrower or lender. Gra (comments to b"m 71b) implies that this is also the opinion of Tosfot b"m 71b as does the Darkei Moshe 170:3. However, the Ravyah (cited by the Mordechai b"m 333) disagrees and holds that it is interest for the guarantor to pay the interest for the non-Jew. The Bet Yosef 170:1 writes that this is also the opinion of the Raavad, Rosh, and Rashba. Darkei Moshe agrees. However, Rabbi Akiva Eiger argues (on Shach 170:3) that Tosfot can be understood to hold similarly to the Raavad. In summary, the Raavan and perhaps Tosfot hold that being a guarantor of a non-Jew who borrowed from a non-Jew is permitted, while most disagree.
- ↑ Rama 170:2 is lenient. However, the Taz 170:5 vehemently disagrees. He writes that the Tosfot's view that entirely permits being a guarantor for a non-Jew who borrowed from a Jew was outvoted. Also, the Hagahot Ashri 5:53 cited by Trumat Hadeshen 301 who applies the Ravyah to be lenient if one only pays the capital and not interest, is only permitted after the fact but wouldn't permit initially setting it up. The Nekudat Hakesef (on Taz 170:5) comes to defend the Rama.
- ↑ Rama 170:2 is lenient. He explains in the Darkei Moshe 170:6 that since one is only a guarantor for the interest and not the capital one isn't considered a borrower and therefore there is no issue with paying interest to the lender. However, the Levush 170:2 and Taz 170:6 argue that once one accepted the responsibility for the interest then it is considered as though he is responsible for the capital since as long as the capital isn't paid the interest continues to accrue. Their proof is the Baal Hatrumot 46:4:10 cited by Bet Yosef 169:13. The Bach 170:2 and Shach 170:7 answer for the Rama. The Shach explains that it is permitted if the responsibility for the interest doesn't enable the borrower to keep the loan for longer, it is a mere consequence of him having the money, however, if one specified that as long as the guarantor pays more interest the lender can't pressure the borrower to pay that is forbidden since he is enabling the loan to be extended.
- ↑ Trumat Hadeshen 301 adds that even if one is going to take a partial responsibility as a guarantor for a non-Jew who borrowed from a Jew, one shouldn't be the one who delivers the money from the hands of the Jewish lender. His proof is the Gemara Bava Metsia 71b and Shulchan Aruch Y.D. 169:1 that having a Jew deliver loan of a non-Jew to a Jew appears as ribbit. Rama 170:2 and Shach 170:6 agree. Regarding some of the more serious issues raised by the Shach, see Rabbi Akiva Eiger, Shaar Deah 170:6 and Chavot Daat who argue and limit the Shach's concern.
- ↑ Rama 170:2, Taz 170:7
- ↑ Trumat Hadeshen 301 was asked about a person who sold part of a non-Jew's loan to another Jew so that he can collect the interest but the seller took the responsibility as a guarantor on the part of the loan he sold and not the interest. Initially it seems that this is prohibited since the sale involves a deal that is nearly certain for the buyer to profit (karov lsachar urachok mhefsed, b"m 64b) since he has a loan with a guarantor from a Jew. However, he permits it because the guarantor isn't considered actually like a borrower when he accepts a partial responsibility for the loan itself and not the interest. The Taz 170:5 generally thinks we can't follow the Trumat Hadeshen initially since is based on a Tosfot that isn't accepted as the halacha and a misapplication of a Hagahot Ashri. Bach 170:2 adds that if the Jewish seller of the debt takes up himself responsibility as a guarantor for the loan or even just for the interest then it is forbidden because of the issue the Trumat Hadeshen raised that the buyer is nearly certainly going to gain. The Bach though is lenient if the Jew doesn't sell the non-Jewish debt but simply delivers a collateral of a non-Jew for a Jew to invest in. The Taz 170:7 accepts the Bach other than to point out that the Bach should forbid the latter case for other reasons. Shach 170:8 also accepts the Bach but adds that it would be permitted if one didn't actually sell the non-Jewish debt but merely transferred it to the other Jew as he describes in Shach 169:57.
- ↑ Shulchan Aruch C.M. 129:1-2 Bet Yosef Y.D. 170:2
- ↑ Raavan teshuva 104, Bet Yosef 170:2, Taz 170:8, Shach 170:5
- ↑ Maharam (Teshuva Prague Edition n. 38) cited by Mordechai Bava Metia n. 333 and Bet Yosef 170:2, Shach 170:5
- ↑ Shach 170:9. He explains that this is the safek of the Hagahot Ashri.
- ↑ Rama CM 129:3, Sama 129:9, Shach YD 170:9. Since he is completely exempting the borrowing it is like he is the borrower and a guarantor at the time of the loan which doesn't need a kinyan.
