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Interest with Non-Jews: Difference between revisions
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→Jew Selling Non-Jew's Debt
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##Some ''poskim'' hold that this sale can be effectuated by a mechanism that local businessman accept as a binding acquisition (''kinyan situmta'') and is enforceable by secular law.<ref>Laws of Ribbis p. 255 writes that one may rely on the opinion of Ben Ish Chai (V'etchanan 23) that a non-Jew's debt can be sold with a ''kinyan situmta''. </ref> | ##Some ''poskim'' hold that this sale can be effectuated by a mechanism that local businessman accept as a binding acquisition (''kinyan situmta'') and is enforceable by secular law.<ref>Laws of Ribbis p. 255 writes that one may rely on the opinion of Ben Ish Chai (V'etchanan 23) that a non-Jew's debt can be sold with a ''kinyan situmta''. </ref> | ||
##If there is a loan document, according to many ''poskim'' the debt can be halachically sold by giving over the loan document and writing a new document for this sale.<ref>Gilyon Maharsha to 168:18, Brit Yehuda 33:24. However, this is unlike the Shach 168:61 and Shulchan Aruch Harav (69) who hold that it is impossible to sell the debt of a non-Jew even when there is a loan document.</ref> | ##If there is a loan document, according to many ''poskim'' the debt can be halachically sold by giving over the loan document and writing a new document for this sale.<ref>Gilyon Maharsha to 168:18, Brit Yehuda 33:24. However, this is unlike the Shach 168:61 and Shulchan Aruch Harav (69) who hold that it is impossible to sell the debt of a non-Jew even when there is a loan document.</ref> | ||
##According to some poskim the above solutions are ineffective and even for the above poskim in a case where there is no loan document and no method accepted by local businessman. Accordingly, it is impossible to transfer the debt between the two Jews. However, there are other solutions for how to accomplish the same result as selling the debt. | ##According to some poskim the above solutions are ineffective and even for the above poskim in a case where there is no loan document and no method accepted by local businessman. Accordingly, it is impossible to transfer the debt between the two Jews.<ref>Mordechai (Bava Batra n. 614) quotes Maharam who writes that it is impossible to sell a non-Jew's debt with any halachic mechanism. It is not sold with chalipin, maamad sheloshtan, or agav. Therefore, the purchaser of the non-Jew's debt doesn't actually own the debt or interest that accrues and it would be forbidden for the seller to give him it. Since the sale is ineffective it is essentially a loan. If the seller, who is effectively a borrower, gives the interest to the buyer, who is effectively a lender, that would be interest. To avoid this Maharam suggests that the lender forgive the non-Jew of his debt. Then, the first Jew can forward the interest from the non-Jew to the second Jew (without acquiring it in between) and it isn't considered interest since the non-Jew didn't actually owe him that money. Maharik 119 follows this opinion. Bet Yosef 168:18 is bothered why Maharam would hold this opinion in opposition to Rabbenu Tam and many other rishonim who held that it is possible to sell a collateral. Therefore, he explains that really they're discussing a loan without any collateral and then it is necessary to resort to a method of transferring the loan by means of forgiving the debt. In that case it is impossible to sell the loan, but if there was a collateral that item could be sold. </ref> However, there are other solutions for how to accomplish the same result as selling the debt. | ||
##When there is a moveable collateral from the non-Jew it is possible to sell the collateral and not the actual debt. The collateral is simple to make an acquisition upon; it is just physically transferred to the second Jew with the stipulation that it is a complete sale and they have no claims upon each other.<ref>Shulchan Aruch Y.D. 168:18, Brit Yehuda 33:15</ref> According to Ashkenazim, it isn't necessary to make a clear stipulation that it is a complete sale since it is assumed that this is the agreement.<ref>Rama 168:18 following the Mordechai and Rosh teshuva</ref> The purchasing Jew makes a ''[[Acquisition|kinyan]]'' on the collateral by taking the actual collateral item.<ref>Rama 168:18</ref> If the Jewish purchaser pays money to buy the collateral but does not actually take the collateral whether he acquired the collateral for purposes of collecting interest is subject to debate.<ref>Bet Yosef and Rama 168:18 hold that it is acceptable to use kinyan kesef to purchase the mashkon of a goy from another Jew since from the Torah a kinyan kesef is effective. However, Gra 168:62 disagrees with this suggestion. He holds that fundamentally the rabbis invalidated the acquisition of kinyan kesef (Tosfot Avoda Zara 63a s.v. vha). Also, even if it is a kinyan on a Torah level and not midrabbanan it would be forbidden to use this kinyan to collect interest as the rabbis introduced stringencies in the world of interest and not leniencies. Chelkat Binyamin 168:215 writes that a person should not rely on this initially but after the fact one may rely upon it. </ref> | ##When there is a moveable collateral from the non-Jew it is possible to sell the collateral and not the actual debt. The collateral is simple to make an acquisition upon; it is just physically transferred to the second Jew with the stipulation that it is a complete sale and they have no claims upon each other.<ref>Shulchan Aruch Y.D. 168:18, Brit Yehuda 33:15</ref> According to Ashkenazim, it isn't necessary to make a clear stipulation that it is a complete sale since it is assumed that this is the agreement.<ref>Rama 168:18 following the Mordechai and Rosh teshuva</ref> The purchasing Jew makes a ''[[Acquisition|kinyan]]'' on the collateral by taking the actual collateral item.<ref>Rama 168:18</ref> If the Jewish purchaser pays money to buy the collateral but does not actually take the collateral whether he acquired the collateral for purposes of collecting interest is subject to debate.<ref>Bet Yosef and Rama 168:18 hold that it is acceptable to use kinyan kesef to purchase the mashkon of a goy from another Jew since from the Torah a kinyan kesef is effective. However, Gra 168:62 disagrees with this suggestion. He holds that fundamentally the rabbis invalidated the acquisition of kinyan kesef (Tosfot Avoda Zara 63a s.v. vha). Also, even if it is a kinyan on a Torah level and not midrabbanan it would be forbidden to use this kinyan to collect interest as the rabbis introduced stringencies in the world of interest and not leniencies. Chelkat Binyamin 168:215 writes that a person should not rely on this initially but after the fact one may rely upon it. </ref> | ||
##If the loan between the Jew and the non-Jew was oral and without any collateral or loan document the loan cannot be transferred from the first Jew and the second Jew. Therefore, it is necessary to resort another method of transferring the debt. This debt involves the first Jew forgiving the non-Jew completely and the second Jew collecting from the non-Jew that which he's owed.<ref>Shulchan Aruch Y.D. 168:18, Brit Yehuda 33:23. Shach 168:62 explains that the mechanism isn't exactly a sale since one can't really sell a non-Jew's debt to another Jew. Rather, one is forgiving the non-Jew from paying him back. Then, the non-Jew can pay the second Jew as he is "considered" according to their intention to be the new lender. In Shach 168:63, he clarifies that he doesn't need to inform the non-Jew of that which he forgave. In practice the non-Jew will pay the second Jew because he seems to have bought the debt. It isn't considered as though the non-Jew is paying interest to the second Jew on behalf of the first Jew because once the first Jew exempted the non-Jew nothing needs to be paid on his behalf. If it is paid to the second Jew that's from the initiative of the non-Jew and not for the first Jew. Netivot Shalom 168:18:9 explains that even though the non-Jew will be paying the second Jew in error, the second Jew may collect it. Shach 168:63 is in disagreement with the Bach who thinks that it is necessary to alert the non-Jew of this forgiving mechanism. Chavot Daat 168:41 endorses another approach. He explains that this transaction is absolutely a sale in secular law and so the non-Jew can treat it as a sale. However, halacha does not recognize the sale and so it is considered forgiving a loan with respect to Jews. Therefore, he concludes that the first Jew may not go and reacquire the loan from the non-Jew once he forgave it, which is binding in secular law. Seemingly, this is contradicted by Rama C.M. 66:25 who writes that a sale that in effective in secular law with a non-Jew is also effective in halacha when it effectuates a sale between a Jew and non-Jew. However, Chavot Daat might explain that this means that this is effective in secular law and Jews must follow this as well. Yet, since it is not objectively a sale in halacha it cannot solve an interest issue and it is necessary to resort to the solution of forgiving the loan.</ref> | ##If the loan between the Jew and the non-Jew was oral and without any collateral or loan document the loan cannot be transferred from the first Jew and the second Jew. Therefore, it is necessary to resort another method of transferring the debt. This debt involves the first Jew forgiving the non-Jew completely and the second Jew collecting from the non-Jew that which he's owed.<ref>Shulchan Aruch Y.D. 168:18, Brit Yehuda 33:23. Shach 168:62 explains that the mechanism isn't exactly a sale since one can't really sell a non-Jew's debt to another Jew. Rather, one is forgiving the non-Jew from paying him back. Then, the non-Jew can pay the second Jew as he is "considered" according to their intention to be the new lender. In Shach 168:63, he clarifies that he doesn't need to inform the non-Jew of that which he forgave. In practice the non-Jew will pay the second Jew because he seems to have bought the debt. It isn't considered as though the non-Jew is paying interest to the second Jew on behalf of the first Jew because once the first Jew exempted the non-Jew nothing needs to be paid on his behalf. If it is paid to the second Jew that's from the initiative of the non-Jew and not for the first Jew. Netivot Shalom 168:18:9 explains that even though the non-Jew will be paying the second Jew in error, the second Jew may collect it. Shach 168:63 is in disagreement with the Bach who thinks that it is necessary to alert the non-Jew of this forgiving mechanism. Chavot Daat 168:41 endorses another approach. He explains that this transaction is absolutely a sale in secular law and so the non-Jew can treat it as a sale. However, halacha does not recognize the sale and so it is considered forgiving a loan with respect to Jews. Therefore, he concludes that the first Jew may not go and reacquire the loan from the non-Jew once he forgave it, which is binding in secular law. Seemingly, this is contradicted by Rama C.M. 66:25 who writes that a sale that in effective in secular law with a non-Jew is also effective in halacha when it effectuates a sale between a Jew and non-Jew. However, Chavot Daat might explain that this means that this is effective in secular law and Jews must follow this as well. Yet, since it is not objectively a sale in halacha it cannot solve an interest issue and it is necessary to resort to the solution of forgiving the loan.</ref> | ||
