Corporations and Partnerships with Respect to Ribbit: Difference between revisions
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, 29 June 2020→Wages for an Iska Worker
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# Some say that if there's a benefit that the agent has in fact that because he has more money from the iska it isn't necessary to pay him. That is, an iska is essentially a part loan and part investment and the part that is a loan belongs to the agent. If the agent would not have been able to invest his loan loan without the extra money of the investment part, such as with half of the money he doesn't meet a certain type of investment vehicle threshold, then the fact that he has a complete iska with the investment part as well is considered his wages.<ref>Taz 177:9</ref> Most others disagree.<ref>Chelkat Binyamin 177:28 based on Chavot Daat, Shaarei Deah, and Sherit Chaim</ref> | # Some say that if there's a benefit that the agent has in fact that because he has more money from the iska it isn't necessary to pay him. That is, an iska is essentially a part loan and part investment and the part that is a loan belongs to the agent. If the agent would not have been able to invest his loan loan without the extra money of the investment part, such as with half of the money he doesn't meet a certain type of investment vehicle threshold, then the fact that he has a complete iska with the investment part as well is considered his wages.<ref>Taz 177:9</ref> Most others disagree.<ref>Chelkat Binyamin 177:28 based on Chavot Daat, Shaarei Deah, and Sherit Chaim</ref> | ||
# If one stipulates that the agent only needs to give a certain amount of profits to the investor and all other profits are waived and given to the agent this can be considered wages for the agent.<ref>Shach 177:9, Chelka Binyamin (Kuntres Heter Iska n. 8) based on Rambam Sheluchin Vshutfin 6:4. See also Shulchan Aruch Y.D. 177:3.</ref> However, it must be stipulated that these are wages for his work and not simply that the investor waives his rights to them.<ref>Chelkat Binyamin 177:54 citing Chavot Daat</ref> | # If one stipulates that the agent only needs to give a certain amount of profits to the investor and all other profits are waived and given to the agent this can be considered wages for the agent.<ref>Shach 177:9, Chelka Binyamin (Kuntres Heter Iska n. 8) based on Rambam Sheluchin Vshutfin 6:4. See also Shulchan Aruch Y.D. 177:3.</ref> However, it must be stipulated that these are wages for his work and not simply that the investor waives his rights to them.<ref>Chelkat Binyamin 177:54 citing Chavot Daat</ref> | ||
# | ====When Wages are Not Specified==== | ||
# If the investor didn't specify in advance the wage of the agent, the iska worker, he must pay him the minimum price a worker. In fact halacha defines this wage to be ascertained by asking a person how much would they take as a salary not to have to work at all. This price would vary depending on their job.<ref>Chelkat Binyamin 177:31 and Milvah Hashem 2:12:4 follow the opinion of Tosfot either because Shulchan Aruch didn't clarify and we can be lenient since it is only rabbinic or because it is the simplest explanation in the words of Shulchan Aruch and the Bet Yosef elaborated upon that opinion. Chavot Daat 177:3 also holds like that opinion.</ref> | |||
# If the iska document only specifies half gains and losses and isn't clear whether the term half is modifying the gains and losses, in which case it is problematic since there is no wage being apportioned to the agent, or only one of the terms, which is permitted as follows. | |||
##For a great person who we would never suspect of having arranged a halachically forbidden transaction we explain that the document means to modify either the gains or the losses.<ref>Gemara Bava Metsia 68b, Tur and Shulchan Aruch Y.D. 177:26</ref> If half modifies the gains then the investor must accept two thirds of the losses, and if the half modifies the losses, then the investor is entitled to a third of the gains. The decision of whether half modifies gains or losses depends on the language of the document. If the language is that the investor grants or gives the portion of the profits to the agent then it is his decision. However, if the language is that the agent will take his portion of the profits then it is up to the agent's decision.<ref>Tur and Shulchan Aruch Y.D. 177:26. Gra 177:56 notes that the Rambam thinks that the iska agent always gets to choose as it seems from Shulchan Aruch Y.D. 177:4.</ref> | |||
## For everyone else we assume that this document is forbidden and the investor may not collect any profits.<ref>Tur and Shulchan Aruch Y.D. 177:25</ref> Some say that the investor can simply state that he is interested to pay for the minimum wage of the worker and then reap the profits of the iska.<ref>Maharam Ibn Chaviv</ref> Others argue that since the document implied a halachically forbidden iska it is forbidden to take profits and it is not correctable.<ref>Hagahot Prisha. Shach 177:52 seems to quote the Hagahot Prisha as being strict, nonetheless his conclusion seems to be at odds with this. That is why the Maharam Ibn Chaviv indeed alters the text of the Shach to be lenient. Most achronim however quote the Shach as being strict including Chelkat Binyamin 177:218.</ref> The exact halacha is unresolved.<ref>Chelkat Binyamin 177:218 cites another dispute as to whether we should follow Shulchan Aruch at all. Shulchan Aruch 177:25 based on the teshuva of the Rosh states that if the document is stated in a forbidden manner one may not collect any profits. Nonetheless, Shulchan Aruch Y.D. 177:28 seems to contradict that. Therefore, the [https://www.hebrewbooks.org/pdfpager.aspx?req=49382&st=&pgnum=242 Maharaal 177:39] disputes Shulchan Aruch 177:25. Chelkat Binyamin leaves it as an unresolved halacha.</ref> | |||
# If they stipulated the percent of gains that the agent would receive and not the losses, then we can calculate the stipulation for the agent to accept of the losses to be two thirds of the percent of the gains he was receiving. Conversely, if they stipulated the percent of losses the agent would accept and not the gains, then we calculate the percent gain of the agent to be the same amount as the percent losses he accepted plus a third of the percent of gains that the investor was receiving.<ref>Rambam Sheluchin 6:5, Shulchan Aruch Y.D. 177:27. | |||
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===Terms and Conditions of the Iska=== | ===Terms and Conditions of the Iska=== | ||
