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Interest with Non-Jews: Difference between revisions
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→When the Collateral was Taken Forcibly
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#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> | #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> | ||
=== | ===Borrowing with Interest from a Jew with a non-Jewish Agent using a Collateral=== | ||
[[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]] | ||
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#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 Jewish lender can ask the agent to show him which non-Jew he lent to but can not ask the agent to pay 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 Jewish lender can ask the agent to show him which non-Jew he lent to but can not ask the agent to pay 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 === | |||
#A few Jewish administrators of a community or communal institution borrowed with interest from a non-Jew on behalf of the community and then they lent the money to the community with interest. That is forbidden since ultimately the non-Jew will hold 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> | #A few Jewish administrators of a community or communal institution borrowed with interest from a non-Jew on behalf of the community and then they lent the money to the community with interest. That is forbidden since ultimately the non-Jew will hold 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> | #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> | ||
=== Non-Jewish Lender who Borrows from Jew Using another Jew's Collateral === | |||
====When the Collateral was Taken Forcibly==== | ====When the Collateral was Taken Forcibly==== | ||
#If a non-Jew took a collateral from a Jew forcibly and then used it to borrow with interest from another Jew, | #If a non-Jew took a collateral from a Jew forcibly and then used it to borrow with interest from another Jew, the second Jew may collect interest from the non-Jew but may not 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 ''poskim'' 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: | #However, under the following two circumstances one may collect the interest according to everyone: | ||
##If the | ##If the responsibility of the loan beyond the value of the collateral rests upon the non-Jew, 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 collateral 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 collateral 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 Collateral was Given to the Non-Jew Properly==== | ====When the Collateral was Given to the Non-Jew Properly==== | ||
# | #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. This is true 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> | ||
#A Jew borrowed from a non-Jew with interest and gave him a collateral. If the non-Jew takes that collateral and uses it to borrow from another Jew with interest some ''poskim'' hold that one may not take interest from that transaction, while others argue that one may. Generally, we are lenient except in the following two circumstances:<ref>Shulchan Aruch 168:10, 20</ref> | |||
##If the non-Jew forcibly took the collateral from the first Jew then we assume that the collateral 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 collateral from the first Jew then we assume that the collateral 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 collateral 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 collateral 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> | ||
==Buying Debt== | ==Buying Debt== | ||
