Interest with Non-Jews: Difference between revisions
From Halachipedia
→Guarantor
| Line 114: | Line 114: | ||
# 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> | # 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</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> | ||
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). Either way, most argue with the Nekudat Hakesef (Brit Yehuda ch. 1 fnt. 33). | |||
==Resources== | ==Resources== | ||
