Interest with Non-Jews: Difference between revisions
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* 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> | * 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> | # 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> | ||
# Some day that if one is only a guarantor on the interest and not the capital 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. He explains in the Darkei Moshe 170:6 that since one is only a guarantor for the interest and not the capital one isn't considered a borrower and therefore there is no issue with paying interest to the lender. However, the Levush 170:2 and Taz 170:6 argue that once one accepted the responsibility for the interest then it is considered as though he is responsible for the capital since as long as the capital isn't paid the interest continues to accrue. Their proof is the Baal Hatrumot 46:4:10 cited by Bet Yosef 169:13. The Bach 170:2 and Shach 170:7 answer for the Rama. The Shach explains that it is permitted if the responsibility for the interest doesn't enable the borrower to keep the loan for longer, it is a mere consequence of him having the money, however, if one specified that as long as the guarantor pays more interest the lender can't pressure the borrower to pay that is forbidden since he is enabling the loan to be extended.</ref> | |||
# If the guarantor is a guarantor for the capital or interest alone he may not be the one who delivers the money from the lender to the non-Jew because it appears as interest.<ref>Trumat Hadeshen 301 adds that even if one is going to take a partial responsibility as a guarantor for a non-Jew who borrowed from a Jew, one shouldn't be the one who delivers the money from the hands of the Jewish lender. His proof is the Gemara Bava Metsia 71b and Shulchan Aruch Y.D. 169:1 that having a Jew deliver loan of a non-Jew to a Jew appears as ribbit. Rama 170:2 and Shach 170:6 agree. Regarding some of the more serious issues raised by the Shach, see Rabbi Akiva Eiger, Shaar Deah 170:6 and Chavot Daat who argue and limit the Shach's concern.</ref> This could be alleviated if the guarantor delivers the non-Jew's collateral in exchange for the loan since the responsibility of the loan falls upon the collateral.<ref>Rama 170:2, Taz 170:7</ref> | |||
# It is problematic to sell a non-Jew's debt to another Jew and at the same time become a guarantor for that loan or even just for the interest.<ref>Trumat Hadeshen 301 was asked about a person who sold part of a non-Jew's loan to another Jew so that he can collect the interest but the seller took the responsibility as a guarantor on the part of the loan he sold and not the interest. Initially it seems that this is prohibited since the sale involves a deal that is nearly certain for the buyer to profit (''karov lsachar urachok mhefsed'', b"m 64b) since he has a loan with a guarantor from a Jew. However, he permits it because the guarantor isn't considered actually like a borrower when he accepts a partial responsibility for the loan itself and not the interest. The Taz 170:5 generally thinks we can't follow the Trumat Hadeshen initially since is based on a Tosfot that isn't accepted as the halacha and a misapplication of a Hagahot Ashri. Bach 170:2 adds that if the Jewish seller of the debt takes up himself responsibility as a guarantor for the loan or even just for the interest then it is forbidden because of the issue the Trumat Hadeshen raised that the buyer is nearly certainly going to gain. The Bach though is lenient if the Jew doesn't sell the non-Jewish debt but simply delivers a collateral of a non-Jew for a Jew to invest in. The Taz 170:7 accepts the Bach other than to point out that the Bach should forbid the latter case for other reasons. Shach 170:8 also accepts the Bach but adds that it would be permitted if one didn't actually sell the non-Jewish debt but merely transferred it to the other Jew as he describes in Shach 169:57.</ref> | |||
# For a guarantor to be obligated to pay if he accepted being a guarantor at the time of the loan he doesn't need a [[kinyan]] but if he accepted it afterwards he needs a [[kinyan]].<ref>Shulchan Aruch C.M. 129:1-2 Bet Yosef Y.D. 170:2</ref> Becoming a guarantor on ribbit is always considered like not at the time of the loan and requires a kinyan<ref>Raavan teshuva 104, Bet Yosef 170:2, Taz 170:8, Shach 170:5</ref> unless it was combined together with the capital and would have to be paid even if the loan was paid early.<ref>Maharam (Teshuva Prague Edition n. 38) cited by Mordechai Bava Metia n. 333 and Bet Yosef 170:2, Shach 170:5</ref> Becoming a guarantor to exempt another original guarantor it isn't clear if a kinyan is necessary.<ref>Shach 170:9</ref> | |||
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