Returning Interest That Was Wrongly Collected: Difference between revisions
From Halachipedia
Returning Interest That Was Wrongly Collected (view source)
Revision as of 05:59, 25 January 2021
, 25 January 2021→Mechila After the Fact
Tags: Mobile edit Mobile web edit |
|||
| (One intermediate revision by the same user not shown) | |||
| Line 2: | Line 2: | ||
==Returning Interest== | ==Returning Interest== | ||
===Biblical Interest=== | ===Biblical Interest=== | ||
#A person who took interest that was in violation of | #A person who took interest that was in violation of biblical ribbit must return the ribbit and if he doesn't the courts can extract it. Nonetheless the courts can force a person to fulfill his mitzvah to return the interest.<ref>Shulchan Aruch 161:5</ref> He must pay with cash and not items worth cash.<ref>Chelkat Binyamin (Biurim 161 s.v. ratza), Netivot Shalom 161:8:5</ref> | ||
# Children of the lender who collected interest don't need to return it unless their father did teshuva before he passed away and didn't get to return it and in such a case they should return any unique item that their father collected as interest.<ref>Shulchan Aruch 161:6</ref> | # Children of the lender who collected interest don't need to return it unless their father did teshuva before he passed away and didn't get to return it and in such a case they should return any unique item that their father collected as interest.<ref>Shulchan Aruch 161:6</ref> | ||
# If a borrower who paid interest died there is an opinion that the courts can't force the lender to repay the orphans of that borrower, nonetheless he would be obligated to do so fulfill a mandate from heaven.<ref>Pitchei Teshuva 161:6 citing Dagul Mirvava. Nodeh Beyehuda YD 2:76 relies upon his comment in the Dagul Mirvava in conjunction with other factors.</ref> | # If a borrower who paid interest died there is an opinion that the courts can't force the lender to repay the orphans of that borrower, nonetheless he would be obligated to do so fulfill a mandate from heaven.<ref>Pitchei Teshuva 161:6 citing Dagul Mirvava. Nodeh Beyehuda YD 2:76 relies upon his comment in the Dagul Mirvava in conjunction with other factors.</ref> | ||
# If a lender wants to do teshuva the lender should return the interest but the borrower shouldn't accept the interest in order not to prevent the lender from doing teshuva. That is only true if the majority of the lender's business and wealth is due to interest.<ref>Shulchan Aruch 161:7</ref> | # If a lender wants to do teshuva the lender should return the interest but the borrower shouldn't accept the interest in order not to prevent the lender from doing teshuva. That is only true if the majority of the lender's business and wealth is due to interest.<ref>Shulchan Aruch 161:7</ref> | ||
# A transaction about which there is a dispute if it is | # A transaction about which there is a dispute if it is biblical interest or rabbinic interest, the lender should not collect it. If the lender collected it the lender should return it, though the Bet Din can't force him to do so.<ref>The Mahara Sason in Torat Emet 162 quotes the Maharash Di Medina YD 62 who writes that if there's a dispute if something is avak ribbit or ribbit kesusa we would say that the lender can apply the principle of kim li and bet din wouldn't extract it from him. The Torat Emet disagrees that nonetheless there is a prohibition of ribbit and kim li is irrelevant to the prohibition, therefore, the Bet Din can extract the money. Shach 177:68 concludes that it is a prohibition of ribbit and you have to be strict, however, Bet Din can not extract the money since it is a dispute. See Pitchei Teshuva 177:8 quoting the Brit Avraham YD 49:1 who says that one needs to return the interest since it was wrongly collected either way.</ref> If he decides that he doesn't want to pay it and the borrower grabbed it back, the borrower wouldn't need to return it.<ref>Shach 161:4</ref> | ||
# A transaction about which there is a dispute if it is interest or permitted a person should be strict but after the fact he doesn't need to return the money.<ref>Pitchei Teshuva 177:8 quoting the Brit Avraham YD 49:1</ref> | # A transaction about which there is a dispute if it is interest or permitted a person should be strict but after the fact he doesn't need to return the money.<ref>Pitchei Teshuva 177:8 quoting the Brit Avraham YD 49:1</ref> | ||
| Line 16: | Line 16: | ||
#A person who took gifts to give a loan before the loan or a gift after the loan was repaid doesn't need to return it.<ref>Based on the Rashba's teshuva, Rama 161:2 writes that ribbit before and after the loan isn't as serious as other cases of rabbinic interest and doesn't need to be returned. The Gra 161:8 explains that the reason that ribbit that is before or after the loan doesn't need to be returned is because it is was given as a gift. Chelkat Binyamin 161:18 agrees.</ref> | #A person who took gifts to give a loan before the loan or a gift after the loan was repaid doesn't need to return it.<ref>Based on the Rashba's teshuva, Rama 161:2 writes that ribbit before and after the loan isn't as serious as other cases of rabbinic interest and doesn't need to be returned. The Gra 161:8 explains that the reason that ribbit that is before or after the loan doesn't need to be returned is because it is was given as a gift. Chelkat Binyamin 161:18 agrees.</ref> | ||
==Repaying Interest== | ==Repaying Interest== | ||
# | # biblical ribbit must be returned otherwise it is permitted to seek a bet din to collect it.<ref>Rabbi Elazar 61b, Shulchan Aruch 161:2</ref> | ||
#There is a religious obligation to pay back derabbanan ribbit.<ref>The rishonim debate whether there’s a religious obligation to pay for deoritta ribbit according to Rabbi Yochanan who says that there isn’t a monetary claim upon the lender. Tosfot 62a s.v. tenay holds that there’s no obligation but Rivan holds that there is. Rashba 62b cites the discussion and Ritva sides with Tosfot. Nemukei Yosef 34a sides with the Rivan. The Rashba concludes that there’s no practical application to this dispute because we hold that there is a monetary obligation to return ribbit. The Ran and Ritva argue that from this discussion you can learn how to treat rabbinic ribbit whether this is a religious obligation to return ribbit derabbanan. Ritva holds that there’s no obligation to return rabbinic ribbit, however, the Ran and Nemukei Yosef holds that there is. Rashba holds that there’s no obligation. Riaz Bava Metsia 62a s.v. elah accepts the Rashba that there’s no comparison between what Rabbi Yochanan held to what we should hold for rabbinic ribbit since Rabbi Yochanan held that someone who collected ribbit owns the money he collected but Rabbi Elazar argues that it isn’t his at all. He concludes that for rabbinic ribbit it doesn’t need to be returned if a person is doing it as part of teshuva. Shulchan Aruch 161:2 holds like the Nemukei Yosef.</ref> Some say that this doesn’t apply to ribbit paid before and after the loan.<ref>Rashba 5:187 writes that if a person gave ribbit after the loan the receiver doesn’t have to return it even as a religious obligation and he adds that ribbit after the loan is less serious than other forms of rabbinic ribbit. Rashba 1:938 writes that the prohibition of giving ribbit after the loan only applies to the receiver and not the borrower. Bet Yosef 161:2 cites the Rashba as a proof that there’s no religious obligation to return ribbit paid after the loan. Rama 161:2 codifies this opinion.</ref> | #There is a religious obligation to pay back derabbanan ribbit.<ref>The rishonim debate whether there’s a religious obligation to pay for deoritta ribbit according to Rabbi Yochanan who says that there isn’t a monetary claim upon the lender. Tosfot 62a s.v. tenay holds that there’s no obligation but Rivan holds that there is. Rashba 62b cites the discussion and Ritva sides with Tosfot. Nemukei Yosef 34a sides with the Rivan. The Rashba concludes that there’s no practical application to this dispute because we hold that there is a monetary obligation to return ribbit. The Ran and Ritva argue that from this discussion you can learn how to treat rabbinic ribbit whether this is a religious obligation to return ribbit derabbanan. Ritva holds that there’s no obligation to return rabbinic ribbit, however, the Ran and Nemukei Yosef holds that there is. Rashba holds that there’s no obligation. Riaz Bava Metsia 62a s.v. elah accepts the Rashba that there’s no comparison between what Rabbi Yochanan held to what we should hold for rabbinic ribbit since Rabbi Yochanan held that someone who collected ribbit owns the money he collected but Rabbi Elazar argues that it isn’t his at all. He concludes that for rabbinic ribbit it doesn’t need to be returned if a person is doing it as part of teshuva. Shulchan Aruch 161:2 holds like the Nemukei Yosef.</ref> Some say that this doesn’t apply to ribbit paid before and after the loan.<ref>Rashba 5:187 writes that if a person gave ribbit after the loan the receiver doesn’t have to return it even as a religious obligation and he adds that ribbit after the loan is less serious than other forms of rabbinic ribbit. Rashba 1:938 writes that the prohibition of giving ribbit after the loan only applies to the receiver and not the borrower. Bet Yosef 161:2 cites the Rashba as a proof that there’s no religious obligation to return ribbit paid after the loan. Rama 161:2 codifies this opinion.</ref> | ||
# A person who took interest should return it. If he offers to return it and the other person forgives his fellow from paying him back the person who took interest can keep it.<ref>Rambam Malveh Vloveh 4:13 and Rosh b”m 5:2 | # A person who took interest should return it. If he offers to return it and the other person forgives his fellow from paying him back the person who took interest can keep it.<ref>Rambam Malveh Vloveh 4:13 and Rosh b”m 5:2 | ||
| Line 23: | Line 23: | ||
==Mechila After the Fact== | ==Mechila After the Fact== | ||
# If a person incorrectly took interest one should return it but if the borrower forgives the loan (mechila) the lender doesn’t need to return it.<ref>Shulchan Aruch YD 160:5, Rambam 4:13 argues with the Geonim who held that mechila | # If a person incorrectly took interest one should return it but if the borrower forgives the loan (mechila) the lender doesn’t need to return it.<ref>Shulchan Aruch YD 160:5, Rambam 4:13 argues with the Geonim who held that mechila never works for ribbit and the Rambam holds that it is works after the fact.</ref> | ||
# If a person forced the borrower to swear that he would forgive the interest after he paid it, that is forbidden to give and take interest and the vow is in invalid.<ref>Ritva Bava Metsia 61a s.v. ma, Bedek Habayit 160:5</ref> | # If a person forced the borrower to swear that he would forgive the interest after he paid it, that is forbidden to give and take interest and the vow is in invalid.<ref>Ritva Bava Metsia 61a s.v. ma, Bedek Habayit 160:5</ref> | ||
# The mechila has to be explicit and can’t be assumed by the lender since the borrower didn’t ask he forgave it.<ref>Pitchei Teshuva 160:1 citing Yavetz 1:147</ref> | # The mechila has to be explicit and can’t be assumed by the lender since the borrower didn’t ask he forgave it.<ref>Pitchei Teshuva 160:1 citing Yavetz 1:147</ref> | ||
| Line 38: | Line 38: | ||
===Rental=== | ===Rental=== | ||
# If a person rented a house or any other item of the borrower for cheaper he needs to return the difference between the discounted price and the full value because that discount was | # If a person rented a house or any other item of the borrower for cheaper he needs to return the difference between the discounted price and the full value because that discount was biblical interest that he collected.<ref>Shulchan Aruch 161:5</ref> | ||
# If a person rented a house or another item of the borrower and overpaid, but the amount that he paid was all money that he gained from stipulated interest, he must return the full amount that was stipulated.<ref>Shulchan Aurch 161:10</ref> | # If a person rented a house or another item of the borrower and overpaid, but the amount that he paid was all money that he gained from stipulated interest, he must return the full amount that was stipulated.<ref>Shulchan Aurch 161:10</ref> | ||
===Document with Interest=== | ===Document with Interest=== | ||
