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. 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> | # 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. | ||
* 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 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> | ||
# 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> | # 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. | |||
* Raavan teshuva 104 explains if someone was a guarantor for a non-Jew who borrowed from a Jew with interest he doesn't have to pay the interest since there's no binding kinyan by which he is obliged to pay the interest. Even though every guarantor is obligated with his speech even without a kinyan, that only applies to the capital and not the interest which didn't yet accrue. It also seems to be an asmachta for the guarantor to pay the interest. In terms of actual ribbit, the Raavan isn't concerned if the guarantor of any kind would pay for the interest to the lender since he isn't considered the borrower or lender. Gra (comments to b"m 71b) implies that this is also the opinion of Tosfot b"m 71b as does the Darkei Moshe 170:3. However, the Ravyah (cited by the Mordechai b"m 333) disagrees and holds that it is interest for the guarantor to pay the interest for the non-Jew. The Bet Yosef 170:1 writes that this is also the opinion of the Raavad, Rosh, and Rashba. Darkei Moshe agrees. However, Rabbi Akiva Eiger argues (on Shach 170:3) that Tosfot can be understood to hold similarly to the Raavad. In summary, the Raavan and perhaps Tosfot hold that being a guarantor of a non-Jew who borrowed from a non-Jew is permitted, while most disagree.</ref> | |||
# Some say that if one is only a guarantor on the capital and not the interest one can be a guarantor under any stipulation for a non-Jew who borrowed from a Jew. However, others disagree.<reF>Rama 170:2 is lenient. However, the Taz 170:5 vehemently disagrees. He writes that the Tosfot's view that entirely permits being a guarantor for a non-Jew who borrowed from a Jew was outvoted. Also, the Hagahot Ashri 5:53 cited by Trumat Hadeshen 301 who applies the Ravyah to be lenient if one only pays the capital and not interest, is only permitted after the fact but wouldn't permit initially setting it up. The Nekudat Hakesef (on Taz 170:5) comes to defend the Rama.</ref> | |||
==Resources== | ==Resources== | ||
