Borrowing Commodities: Difference between revisions

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# It is rabbinically forbidden to lend<ref>Rosh respona 108:7 implies that lending commodities isn't forbidden in it of itself but the prohibition is only violated if the lender ends up collecting more than he borrowed. (Chelkat Binyamin (biurim 162:5 s.v. haloveh) rereads the Rosh.) The Ramban Shabbat 148b s.v. ha certainly holds that opinion. However, the Chelkat Binyamin 162:1 learns from Tosfot b"m 75a that it is forbidden even to set up such a transaction even if one never collects any gain. That approach is adopted as the halacha bu Shach 162:13 and Chelket Binyamin.</ref> items for the same quantity of that item.<ref>Shulchan Aruch 160:21.  
# It is rabbinically forbidden to lend<ref>Rosh respona 108:7 implies that lending commodities isn't forbidden in it of itself but the prohibition is only violated if the lender ends up collecting more than he borrowed. (Chelkat Binyamin (biurim 162:5 s.v. haloveh) rereads the Rosh.) The Ramban Shabbat 148b s.v. ha certainly holds that opinion. However, the Chelkat Binyamin 162:1 learns from Tosfot b"m 75a that it is forbidden even to set up such a transaction even if one never collects any gain. That approach is adopted as the halacha bu Shach 162:13 and Chelket Binyamin.</ref> items for the same quantity of that item.<ref>Shulchan Aruch 160:21.  
Why is it only rabbinic interest to lend commodities?
Why is it only rabbinic interest to lend commodities?
*Rosh responsa 108:6 writes that the reason is that Biblically you can repay the same quantity of a commodity for that commodity and that is Biblically required as part of your loan.  
*Rosh responsa 108:6 writes that the reason is that biblically you can repay the same quantity of a commodity for that commodity and that is biblically required as part of your loan.  
*Ritva 60b s.v. vtisbara, Ramban 60b s.v. ulbsof, Ran s.v. ulinyan, Nemukei Yosef s.v. eizhu batar mikara all write that it isn't Biblical interest since it isn't clear that a person will gain since the commodity might not go up in price. See also Taz 162:1 andRashi 62b sv bdiynenu safek.</ref>
*Ritva 60b s.v. vtisbara, Ramban 60b s.v. ulbsof, Ran s.v. ulinyan, Nemukei Yosef s.v. eizhu batar mikara all write that it isn't biblical interest since it isn't clear that a person will gain since the commodity might not go up in price. See also Taz 162:1 andRashi 62b sv bdiynenu safek.</ref>
# It is Biblically forbidden to lend an item for a greater quantity of that item. For example, lending 100 apples for 120 apples is Biblical interest.<ref>Devarim 23:20, Shulchan Aruch YD 160:21</ref>
# It is biblically forbidden to lend an item for a greater quantity of that item. For example, lending 100 apples for 120 apples is biblical interest.<ref>Devarim 23:20, Shulchan Aruch YD 160:21</ref>
# It is forbidden to lend an item to get back the same type of item. This is called ''Seah B'seah''. For example, lending out a 5 pound bag of flour to get back another bag of flour is forbidden.<ref>Bava Metsia 75a</ref>
# It is forbidden to lend an item to get back the same type of item. This is called ''Seah B'seah''. For example, lending out a 5 pound bag of flour to get back another bag of flour is forbidden.<ref>Bava Metsia 75a</ref>
# This type of rabbinic ribbit is permitted if the borrower has some of the same type of the item he is borrowing. For example, if someone has one egg and wants to borrow five more eggs they can do so since they already have one.<ref>Bava Metsia 75a</ref>
# This type of rabbinic ribbit is permitted if the borrower has some of the same type of the item he is borrowing. For example, if someone has one egg and wants to borrow five more eggs they can do so since they already have one.<ref>Bava Metsia 75a</ref>
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===One Commodity for Another Commodity===
===One Commodity for Another Commodity===
# If one lends one commodity for another commodity of the equivalent value it is forbidden perhaps the value of commodity that needs to be returned will increase in price. This is forbidden even if the borrower has some or all of the quantity of the commodity necessary to repay the loan and it is forbidden even if the marketplace price for the commodity to be returned is fixed.<Ref>The Raavad cited by Baal Hatrumot 46:5:7 and Tur 162:5 explains that the leniencies of seah bseah only apply when one is borrowing one commodity to repay that same commodity. However, if one repays another commodity it is forbidden even if it is yesh lo and yatza hashaar. Shulchan Aruch Y.D. 162:5 codifies the opinion of the Raavad. The Perisha 162:21 explains that when one repays a loan with the same commodity it doesn't appear as interest since the difference in price between the loan and repayment isn't viewed as significant. However, once the repayment is in another commodity it is viewed as interest. Therefore, the leniencies of seah bseah don't apply here. Similarly, Netivot Shalom 162:5 explains that once one is trying to gain another commodity it appears as though one is investing in order to gain, however, when one lends one commodity to get back the same quantity of that commodity it doesn't appear as though one is trying to invest. Chelkat Binyamin interprets the Levush 162:5 as explaining that since the difference between the prices is relative and can change yatza hashaar doesn't help. Additionally, since the second commodity isn't a complete payment of the first commodity even yesh lo is insufficient.</ref>
# If one lends one commodity for another commodity of the equivalent value it is forbidden perhaps the value of commodity that needs to be returned will increase in price. This is forbidden even if the borrower has some or all of the quantity of the commodity necessary to repay the loan and it is forbidden even if the marketplace price for the commodity to be returned is fixed.<Ref>The Raavad cited by Baal Hatrumot 46:5:7 and Tur 162:5 explains that the leniencies of seah bseah only apply when one is borrowing one commodity to repay that same commodity. However, if one repays another commodity it is forbidden even if it is yesh lo and yatza hashaar. Shulchan Aruch Y.D. 162:5 codifies the opinion of the Raavad. The Perisha 162:21 explains that when one repays a loan with the same commodity it doesn't appear as interest since the difference in price between the loan and repayment isn't viewed as significant. However, once the repayment is in another commodity it is viewed as interest. Therefore, the leniencies of seah bseah don't apply here. Similarly, Netivot Shalom 162:5 explains that once one is trying to gain another commodity it appears as though one is investing in order to gain, however, when one lends one commodity to get back the same quantity of that commodity it doesn't appear as though one is trying to invest. Chelkat Binyamin interprets the Levush 162:5 as explaining that since the difference between the prices is relative and can change yatza hashaar doesn't help. Additionally, since the second commodity isn't a complete payment of the first commodity even yesh lo is insufficient.</ref>
#This is only forbidden when one states this with the language of a loan but not if one says that one is selling one commodity for another.<ref>Shach 173:16 writes that based on Tosfot Bava Metsia 46a anytime one is repaying with another commodity it is permitted since it is considered a sale and not a loan. However, when one uses the language of a loan it is nonetheless treated like a loan and interest is forbidden. The Taz 162:9 states this same opinion with respect to the Raavad. Rabbi Akiva Eiger 162:5 connects the Taz with the Shach. Chavot Daat 161:1 as explained by the Netivot Shalom 162:5 holds that anytime one repays a commodity with another one it is automatically a sale on a Biblical level and there is only a rabbinic issue of interest.</ref>
#This is only forbidden when one states this with the language of a loan but not if one says that one is selling one commodity for another.<ref>Shach 173:16 writes that based on Tosfot Bava Metsia 46a anytime one is repaying with another commodity it is permitted since it is considered a sale and not a loan. However, when one uses the language of a loan it is nonetheless treated like a loan and interest is forbidden. The Taz 162:9 states this same opinion with respect to the Raavad. Rabbi Akiva Eiger 162:5 connects the Taz with the Shach. Chavot Daat 161:1 as explained by the Netivot Shalom 162:5 holds that anytime one repays a commodity with another one it is automatically a sale on a biblical level and there is only a rabbinic issue of interest.</ref>
===Demanding Repayment When It Is More Expensive===
===Demanding Repayment When It Is More Expensive===
# If the lender demands the borrower to repay the loan specifically at a time when the commodity is generally more expensive in price that it is forbidden unless the borrower has some of the commodity.<ref>Rosh responsa 108:15 writes that even though it is permitted to lend commodities when there is a marketplace price it is forbidden when you specify that it is repaid at the time of the higher amount. Rama 162:3 cites a ruling similar to the Rosh from the Kol Bo and Smak. Shach 162:11 quotes the Rosh and in fact explains that the Rama intended to rule like the Rosh and the Kol Bo and Smak mean this as well. The Chelkat Binyamin biurim on 162:3 writes that there is a major dispute as to the meaning of the Kol Bo and Smak. The Shach as the Chelkat Binyamin explains holds it is forbidden to demand repayment of the commodity at a time when the price generally is more expensive.</ref>
# If the lender demands the borrower to repay the loan specifically at a time when the commodity is generally more expensive in price that it is forbidden unless the borrower has some of the commodity.<ref>Rosh responsa 108:15 writes that even though it is permitted to lend commodities when there is a marketplace price it is forbidden when you specify that it is repaid at the time of the higher amount. Rama 162:3 cites a ruling similar to the Rosh from the Kol Bo and Smak. Shach 162:11 quotes the Rosh and in fact explains that the Rama intended to rule like the Rosh and the Kol Bo and Smak mean this as well. The Chelkat Binyamin biurim on 162:3 writes that there is a major dispute as to the meaning of the Kol Bo and Smak. The Shach as the Chelkat Binyamin explains holds it is forbidden to demand repayment of the commodity at a time when the price generally is more expensive.</ref>
# If the lender demands the borrower to repay the loan specifically at a higher price it is forbidden unless the borrower has some of the commodity.<ref>Kol Bo 84 and Smak 260, Rama 162:3. The Chelkat Binyamin biurim on 162:3 clarifies that the Kol Bo and Smak actually said that if a person specified that the commodity that was lent out needs to be repaid when it'll be more expensive on the market that it is forbidden and it is implied that it is Biblically forbidden.</ref>
# If the lender demands the borrower to repay the loan specifically at a higher price it is forbidden unless the borrower has some of the commodity.<ref>Kol Bo 84 and Smak 260, Rama 162:3. The Chelkat Binyamin biurim on 162:3 clarifies that the Kol Bo and Smak actually said that if a person specified that the commodity that was lent out needs to be repaid when it'll be more expensive on the market that it is forbidden and it is implied that it is biblically forbidden.</ref>


===Lending Commodities as Part of a Work Contract===
===Lending Commodities as Part of a Work Contract===

Revision as of 02:14, 3 December 2020

Lending Commodities

  1. It is rabbinically forbidden to lend[1] items for the same quantity of that item.[2]
  2. It is biblically forbidden to lend an item for a greater quantity of that item. For example, lending 100 apples for 120 apples is biblical interest.[3]
  3. It is forbidden to lend an item to get back the same type of item. This is called Seah B'seah. For example, lending out a 5 pound bag of flour to get back another bag of flour is forbidden.[4]
  4. This type of rabbinic ribbit is permitted if the borrower has some of the same type of the item he is borrowing. For example, if someone has one egg and wants to borrow five more eggs they can do so since they already have one.[5]
  5. Some poskim hold that it is permitted to lend an item that is small or cheap and people wouldn't care about the fluctuation in the price such as lending a loaf of bread.[6]
  6. It is forbidden even if one uses the language of selling them an item and the buyer will later sell back that item since the price might fluctuate in between and it is like a loan and not two sales.[7]

Yesh Lo

  1. If a person owns some of the commodity that he is borrowing he can borrow as much as he wants and it is like he sold the lender his commodity. It works even if the borrower only has a little bit of that commodity since it is like he borrowed it several times each time selling to the lender his commodity. It is permitted to do such a loan all at one time.[8]
  2. Initially both parties should be aware that the borrower has some of that commodity. If they weren't aware of that, the transaction is nonetheless permitted and can be collected.[9]
  3. Ideally both parties should be aware that it is as if the borrower is selling his commodity to the lender.[10]
  4. The borrower needs to actually own some of the commodity to permit this transaction and it isn't enough that people owe him some of that commodity.[11] If the borrower has some of that commodity that is deposited with someone else that is sufficient to consider him yesh lo.[12] If the borrower has some of that commodity but he borrowed it previously in a permitted fashion, some poskim say that it is sufficient to consider it yesh lo.[13]
  5. It is insufficient for the borrower to have enough money or property to be able to repay the loan as long as the borrower doesn't own any of the commodity and there isn't any fixed marketplace price.[14]

Yatza Hashaar

  1. If there is a price that is fixed in the marketplace for that commodity it is permitted to lend that commodity.[15]
  2. It must be known to both parties that there is a fixed price in the marketplace for that commodity.[16]
  3. It isn't necessary for the borrower to have the money needed to buy the grain in the marketplace as long as there is a marketplace price it is permitted.[17]
  4. Some say that it is forbidden to lend commodities when the marketplace price is fixed if the lender specifies the time that the commodity needs to be returned, however, the halacha doesn't follow that opinion.[18]
  5. If one place has a fixed marketplace price other nearby places can rely on that place.[19]

One Commodity for Another Commodity

  1. If one lends one commodity for another commodity of the equivalent value it is forbidden perhaps the value of commodity that needs to be returned will increase in price. This is forbidden even if the borrower has some or all of the quantity of the commodity necessary to repay the loan and it is forbidden even if the marketplace price for the commodity to be returned is fixed.[20]
  2. This is only forbidden when one states this with the language of a loan but not if one says that one is selling one commodity for another.[21]

Demanding Repayment When It Is More Expensive

  1. If the lender demands the borrower to repay the loan specifically at a time when the commodity is generally more expensive in price that it is forbidden unless the borrower has some of the commodity.[22]
  2. If the lender demands the borrower to repay the loan specifically at a higher price it is forbidden unless the borrower has some of the commodity.[23]

Lending Commodities as Part of a Work Contract

  1. If a person hires a worker to plant a field if the employer wants to provide the seeds as a loan and get repaid afterwards he can do so. If it is common for the worker to supply the seeds to plant it the employer can arrange this loan at any time, but if it is common for the employer to supply the seeds to plant it then the employer can only make this arrangement if the worker didn't begin his work.[24]
  2. This leniency wouldn't permit a commodity loan if the worker will use the commodities for anything other than for his work.[25]

Sources

  1. ↑ Rosh respona 108:7 implies that lending commodities isn't forbidden in it of itself but the prohibition is only violated if the lender ends up collecting more than he borrowed. (Chelkat Binyamin (biurim 162:5 s.v. haloveh) rereads the Rosh.) The Ramban Shabbat 148b s.v. ha certainly holds that opinion. However, the Chelkat Binyamin 162:1 learns from Tosfot b"m 75a that it is forbidden even to set up such a transaction even if one never collects any gain. That approach is adopted as the halacha bu Shach 162:13 and Chelket Binyamin.
  2. ↑ Shulchan Aruch 160:21. Why is it only rabbinic interest to lend commodities?
    • Rosh responsa 108:6 writes that the reason is that biblically you can repay the same quantity of a commodity for that commodity and that is biblically required as part of your loan.
    • Ritva 60b s.v. vtisbara, Ramban 60b s.v. ulbsof, Ran s.v. ulinyan, Nemukei Yosef s.v. eizhu batar mikara all write that it isn't biblical interest since it isn't clear that a person will gain since the commodity might not go up in price. See also Taz 162:1 andRashi 62b sv bdiynenu safek.
  3. ↑ Devarim 23:20, Shulchan Aruch YD 160:21
  4. ↑ Bava Metsia 75a
  5. ↑ Bava Metsia 75a
  6. ↑ Rama 162:1, Yalkut Yosef CM 159:18
  7. ↑ Taz 160:1 permits seah bseah when the language of sales is employed. Chelkat Binyamin 162:2 writes that many argue with the Taz including Binat Adam 139:7, Sharit Chaim, Igrot Moshe n. 27, Chazom Ish 72:5, and Ritva Shabbat 148a s.v. bshabbat.
  8. ↑ Gemara Bava Metsia 75a, Shulchan Aruch 160:2
  9. ↑ Shach 160:7, Taz 160:3, Bach 160:2, Chelkat Binyamin 160:25, Laws of Interest 14:8 p. 271
  10. ↑ Chachmat Adam (Shaarei Tzedek 134:2)
  11. ↑ Gemara Bava Metsia 63b, Shulchan Aruch 160:2
  12. ↑ Bet Yosef YD 162:2 writes that an item deposited with someone else (Pikadon) wherever it is is considered yours that it should be considered yesh lo for seah bseah. Tosfot Bava Metsia 6a writes that a person owns his pikadon can he sanctify it.
  13. ↑ Shulchan Aruch 160:2 holds that if he borrowed the commodity it is considered yesh lo since currently it is his. However, in Bet Yosef it is clear he is disagreeing with the Talmid Harashba who says it isn't yesh lo since he is going to have to return it. Bach 160:2 sides with the Talmid Harashba. Shach 160:8 follows the Bach. Taz 160:4 differentiates between where the original loan was made separately from the loan in which case it is yesh lo, whereas if the permitted loan was done only to permit the later loan which isn't yesh lo.
  14. ↑ Tosfot b"m 72b s.v. ein wonders why seah bseah isn't permitted if the borrower has any money or property with which he could use to buy the commodity to repay the loan even if he doesn't have that commodity and there's no marketplace price. In fact, the Hagahot Ashri 5:75 permits lending seah bseah if the borrower has money to buy the commodity to repay the loan. Bet Yosef 162:3 cites the Rambam Malveh Vloveh 10:1, Rif 43a, and Rosh b"m 5:61 who disagree with the Hagahot Ashri and concurs with their view.
  15. ↑ The Bahag read the Gemara Bava Metsia 72b as saying that it is permitted to lend a commodity if there is a fixed marketplace price. Rashi and Tosfot s.v. ein cite the Bahag. Rif 43a and Rambam Malveh Vloveh 10:1 agree. Tur and Shulchan Aruch 162:3 codify the Bahag.
  16. ↑ Rambam Malveh Vloveh 10:1 writes that the lender and borrower need to know the marketplace price in order to employ that leniency. Bet Yosef 162 explains that if they don't know of the marketplace price it appears as though they are intending to take interest.
  17. ↑ The Baal Hatrumot 46:5:5 cites the Raavad (see Malveh Vloveh 10:1) who holds that in order to apply the leniency of the marketplace price being established for seah bseah it is necessary for the borrower to have the money available to be able to buy the grain to repay the loan. Tosfot b"m 72b s.v. ein agrees. However, most rishonim disagree including the Rambam Malveh Vloveh 10:1, Rif 43a, and Ramban b"m 72b s.v. ein. Bet Yosef 162:3 and Shach 162:10 rule like most rishonim unlike the Raavad.
  18. ↑ Rambam Malveh Vloveh 10:1 holds that it is only permitted to lend commodities with a marketplace price that is fixed if the lender doesn't specify a time. However, the Raavad, Rosh responsa 108:15, and Rashba responsa chadashot 75 disagree. Rama 162:3, Gra 162:14, and Shach 162:11 concur that we don't follow the Rambam.
  19. ↑ Bava Metsia 72b, Bet Yosef 162:3, Hagahot Mordechai b"m n. 439, Taz 162:5
  20. ↑ The Raavad cited by Baal Hatrumot 46:5:7 and Tur 162:5 explains that the leniencies of seah bseah only apply when one is borrowing one commodity to repay that same commodity. However, if one repays another commodity it is forbidden even if it is yesh lo and yatza hashaar. Shulchan Aruch Y.D. 162:5 codifies the opinion of the Raavad. The Perisha 162:21 explains that when one repays a loan with the same commodity it doesn't appear as interest since the difference in price between the loan and repayment isn't viewed as significant. However, once the repayment is in another commodity it is viewed as interest. Therefore, the leniencies of seah bseah don't apply here. Similarly, Netivot Shalom 162:5 explains that once one is trying to gain another commodity it appears as though one is investing in order to gain, however, when one lends one commodity to get back the same quantity of that commodity it doesn't appear as though one is trying to invest. Chelkat Binyamin interprets the Levush 162:5 as explaining that since the difference between the prices is relative and can change yatza hashaar doesn't help. Additionally, since the second commodity isn't a complete payment of the first commodity even yesh lo is insufficient.
  21. ↑ Shach 173:16 writes that based on Tosfot Bava Metsia 46a anytime one is repaying with another commodity it is permitted since it is considered a sale and not a loan. However, when one uses the language of a loan it is nonetheless treated like a loan and interest is forbidden. The Taz 162:9 states this same opinion with respect to the Raavad. Rabbi Akiva Eiger 162:5 connects the Taz with the Shach. Chavot Daat 161:1 as explained by the Netivot Shalom 162:5 holds that anytime one repays a commodity with another one it is automatically a sale on a biblical level and there is only a rabbinic issue of interest.
  22. ↑ Rosh responsa 108:15 writes that even though it is permitted to lend commodities when there is a marketplace price it is forbidden when you specify that it is repaid at the time of the higher amount. Rama 162:3 cites a ruling similar to the Rosh from the Kol Bo and Smak. Shach 162:11 quotes the Rosh and in fact explains that the Rama intended to rule like the Rosh and the Kol Bo and Smak mean this as well. The Chelkat Binyamin biurim on 162:3 writes that there is a major dispute as to the meaning of the Kol Bo and Smak. The Shach as the Chelkat Binyamin explains holds it is forbidden to demand repayment of the commodity at a time when the price generally is more expensive.
  23. ↑ Kol Bo 84 and Smak 260, Rama 162:3. The Chelkat Binyamin biurim on 162:3 clarifies that the Kol Bo and Smak actually said that if a person specified that the commodity that was lent out needs to be repaid when it'll be more expensive on the market that it is forbidden and it is implied that it is biblically forbidden.
  24. ↑ Gemara Bava Metsia 74b, Shulchan Aruch Y.D. 162:4. The reason is that before the worker starts his work the employer can build into the contract the arrangement for him to lend the worker his supplies and he'll get repaid. Since it is all part of the original contract it is considered hiring the worker for a lesser wage. However, once the worker starts working the employer can't retract and change the wages. Therefore, if he decides to lend him the commodities for the job it is seah bseah and is problematic. If the worker in that place is supposed to supply the seeds and begins his work it is as though he didn't begin his work since he is unprepared and as such it is still possible to renegotiate his wages.
  25. ↑ Mishna Bava Metsia 74b states that this arrangement with a worker can't permit giving the worker seeds to consume. Chelkat Binyamin on 162:4 cites this.
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