Interest with Non-Jews: Difference between revisions
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#If the borrower claims that his lender charged him interest and he should return it, if the lender responds that it was done in a permissible way he is believed without any oath. Some say that it is necessary to specify how it was done permissibly.<ref>Taz 168:36</ref> This is true as long as the lender already collected the interest. However, if he has a collateral of the borrower or a legal document that entitles him to collect, he can collect after making an oath. If he responds that he didn’t take any interest or doesn’t know if he took any interest, he is believed only if he takes an oath to that effect. This is true as long as the lender already collected the interest, has a collateral of the borrower, or have a legal document that entitles him to collect. However, in absence of that and the lender hasn’t yet collected if the borrower claims that he doesn’t owe the money due to interest he is believed and doesn’t have to pay.<Ref>Shulchan Aruch and Rama Y.D. 168:25</ref> | #If the borrower claims that his lender charged him interest and he should return it, if the lender responds that it was done in a permissible way he is believed without any oath. Some say that it is necessary to specify how it was done permissibly.<ref>Taz 168:36</ref> This is true as long as the lender already collected the interest. However, if he has a collateral of the borrower or a legal document that entitles him to collect, he can collect after making an oath. If he responds that he didn’t take any interest or doesn’t know if he took any interest, he is believed only if he takes an oath to that effect. This is true as long as the lender already collected the interest, has a collateral of the borrower, or have a legal document that entitles him to collect. However, in absence of that and the lender hasn’t yet collected if the borrower claims that he doesn’t owe the money due to interest he is believed and doesn’t have to pay.<Ref>Shulchan Aruch and Rama Y.D. 168:25</ref> | ||
==Guarantor== | ==Guarantor== | ||
# If a Jew takes an interest loan from a non-Jew it is generally permitted for a Jew to be his guarantor. It would be forbidden for a Jew to be his guarantor if they allowed the lender to collect from the guarantor before collecting from the borrower. However, nowadays it is customary that the lender doesn't ask the guarantor unless he first asks the borrower.<ref>Gemara Bava Metsia 71b, Shulchan Aruch and Rama Y.D. 170:1</ref> | # If a Jew takes an interest loan from a non-Jew it is generally permitted for a Jew to be his guarantor. It would be forbidden for a Jew to be his guarantor if they allowed the lender to collect from the guarantor before collecting from the borrower. However, nowadays it is customary that the lender doesn't ask the guarantor unless he first asks the borrower.<ref>Gemara Bava Metsia 71b, Shulchan Aruch and Rama Y.D. 170:1. There are three types of guarantors: 1) Arev Shluf Dutz - A guarantor whom the lender goes to first. 2) Arev Kablan - A guarantor whom the lender can choose to go to first. 3) Arev Stam - A guarantor whom the lender can't collect from until he tries to collect from the borrower. In the days of the gemara, the non-Jewish practice was that a standard guarantor was a guarantor that was a Arev Shluf Dutz (Rashba) or Arev Kablan (Rashi). The gemara indicates that this is problematic for a Jew to be for another Jew when borrowing from a non-Jew. However, if the non-Jew would agree to follow the Jewish practice which was that the guarantor would be a Arev Kablan or Arev Stam then it is permitted. Shulchan Aruch and Rama 170:1 follow Rashi initially but after the fact like the Rashba. The Tur and Rama 170:1 comment that today the non-Jewish practice is that a standard guarantor is an Arev Stam, therefore generally it is permitted to be an guarantor for a Jew who borrowed with interest from a non-Jew. </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</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 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</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</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</ref> | ||
==Resources== | ==Resources== | ||
