Interest with Non-Jews: Difference between revisions

===Lending with Interest with a Non-Jewish Agent===

#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>