Corporations and Partnerships with Respect to Ribbit: Difference between revisions
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Corporations and Partnerships with Respect to Ribbit (view source)
Revision as of 01:59, 23 June 2020
, 23 June 2020→Rolling Over a Iska Upon its Maturity
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# If the agent claims that the money he already paid to the investor was interest and it should be returned, the investor is believed without swearing to say that he accepted it as iska payments because such payment were due to him according to the original iska as there were indeed specified profits and it was not interest.<ref>Shach 177:23, Chelkat Binyamin 177:111</ref> | # If the agent claims that the money he already paid to the investor was interest and it should be returned, the investor is believed without swearing to say that he accepted it as iska payments because such payment were due to him according to the original iska as there were indeed specified profits and it was not interest.<ref>Shach 177:23, Chelkat Binyamin 177:111</ref> | ||
====Rolling Over a Iska Upon its Maturity==== | ====Rolling Over a Iska Upon its Maturity==== | ||
# Many poskim hold that upon maturity date of the iska if the investor and agent don't stipulate what to do or actually return the money, it is considered to be assumed that the same iska setup will continue. In other words, the first iska rolls over into another iska unless otherwise stipulated.<ref>Taz 177:14, Chelkat Binyamin 177:112. This is regarding a regular iska with part loan and part investment. In Chelkat Binyamin (Biurim s.v. muter p. 650) he quotes a dispute between the | # Many poskim hold that upon maturity date of the iska if the investor and agent don't stipulate what to do or actually return the money, it is considered to be assumed that the same iska setup will continue. In other words, the first iska rolls over into another iska unless otherwise stipulated.<ref>Taz 177:14, 177:31, Chelkat Binyamin 177:112. This is regarding a regular iska with part loan and part investment. In Chelkat Binyamin (Biurim s.v. muter p. 650) he quotes a dispute between the Imrei Esh 56 and Bet Yitzchak 2:7 whether a heter iska of the Maharam would rollover to another iska. However, that was specifically because the arrangement was such that there was a period of investment and then a period of loan and the dispute was whether it would automatically rollover to another deal with the same conditions.</ref> | ||
====Alterations to Transaction before Maturation==== | |||
# If a person made a loan and then in the middle of the duration of the loan wanted to change it into an iska, they can do so provided that they establish a valid mechanism of acquisition that would make the agreement legally binding. Many hold that it is sufficient to do a kinyan sudar or write a document that converts the loan into an iska. Others require that the lender acquire the capital to be returned or the commodity that the borrower will buy as part of the iska.<ref>Chelkat Binyamin 177:171 cites that the Dagul Mirvava on Shach 177:41 thinks that a kinyan sudar or shtar is sufficient to conver ta loan into an iska, and the Graz argues that only acquiring the money that is to be returned or the product that the borrower is buying is effective.</ref> | |||
# If someone didn't convert the loan into an iska effective and instead only orally agreed upon it, then it is essentially still a loan. The borrower even in the event that he profits does not have to split those profits with the investor.<ref>Maharshal in Yam Shel Shlomo b"k 8:70 that if they merely orally agree to switch the loan into an iska it is unchanged and in the event of loss the investor doesn't lose. Shach 177:41 cites this.</ref> If the borrower invested and profited there is a discussion if it is allowed for him to voluntarily give some of the profits to the investor.<ref>Maharshal in Yam Shel Shlomo b"k 8:70 indeed writes that even though the borrower isn't obligated to pay a portion of his profits to the lender since it is a loan, if he wishes to he may do so. The Shach 177:41 cites this. However, the Chavot Daat 177:19 disagrees since this is considered interest after the duration of the loan and forbidden. The Mekor Mayim Chayim 177:19 explains that the Maharshal thinks that the intent of the borrower is to treat it as a investment and so they can pay the profits since it isn't paid with intent for the time-value of money. Chelkat Binyamin 177:171 believes that this is effective even if the borrower and lender are aware that in fact it remained a loan. However, the Brit Yehuda ch. 35 fnt. 18 limits the Maharshal to where the borrower is unaware of the fact that the loan was not effectively changed into a iska. In any event, the Chelkat Binyamin is hesitant to rely upon the Maharshal and only relies upon him if it is after the time of the repayment of the capital and not at the same time as the repayment of capital.</ref> | |||
#Regarding converting a loan into a heter iska see Chelkat Binyamin Kuntres Heter Iska n. 14. | |||
====Disputes Between Investor and Agent==== | |||
# The agent claimed that there were profits and gave distributions or dividends to the investor based on those claimed profits. Then after the duration of the investment the agent claims that it was fraud and in fact he did not profit and should only return the capital after deducting the distributions or dividends he made. The halacha is that he is not believed and the investor is entitled to his entire capital since it was given as a profit.<ref>Shulchan Aruch C.M. 81:30, Y.D. 177:20</ref> | |||
===Alternate Versions of Iska=== | ===Alternate Versions of Iska=== | ||
====Capping Profits==== | ====Capping Profits==== | ||
