Interest with Non-Jews: Difference between revisions
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[[Image:Non-Jew Transferring Jew's Loan 168-6.jpg|350px|right]] | [[Image:Non-Jew Transferring Jew's Loan 168-6.jpg|350px|right]] | ||
[[Image:Jew Borrowing from Jew through Non-Jew 168-5.jpg|350px|right]] | [[Image:Jew Borrowing from Jew through Non-Jew 168-5.jpg|350px|right]] | ||
#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 | #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> | ||
#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> | #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> | ||
#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. | #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. | ||
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===Non-Jew Selling Jew's 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> | #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 | # 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> | # 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> | ||
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*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> | *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 | #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> | #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 | #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. | #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. | ||
