Interest with Non-Jews: Difference between revisions

#If a non-Jew borrowed money from a Jew with interest, theoretically the Jew can sell that loan to another Jew. Doing so will make the Jewish buyer like the new lender and he can collect the interest from the non-Jew. However, this has to be a complete sale of the loan and they will no longer have any claims upon each other.<ref>Shulchan Aruch Y.D. 168:18 explains that the Jew can sell the collateral to another Jew with halachic means of acquisition. When there is no collateral and it is impossible to effectively sell the debt, Shulchan Aruch writes that the debt is transferred by having the Jewish lender forgive the non-Jew of his debt. See further for details.</ref> Practically, for this to be effective a binding ''kinyan'' (acquisition) is necessary to transfer the non-Jew's debt to the Jewish purchaser.  

##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>

##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>