Interest with Non-Jews: Difference between revisions
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#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> | #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> | #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> | #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. He explains that this is the safek of the Hagahot Ashri.</ref> If the guarantor is exempting the borrower so that the lender will only collect from the guarantor that is binding without a kinyan.<ref>Rama CM 129:3, Sama 129:9, Shach YD 170:9. Since he is completely exempting the borrowing it is like he is the borrower and a guarantor at the time of the loan which doesn't need a kinyan.</ref> | ||
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