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Taking Interest: Difference between revisions
From Halachipedia
→Yesh Lo
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# Initially both parties should be aware that the borrower has some of that commodity. If they weren't aware of that, the transaction is nonetheless permitted and can be collected.<ref>Shach 160:7, Taz 160:3, Bach 160:2, Chelkat Binyamin 160:25, Laws of Interest 14:8 p. 271</ref> | # Initially both parties should be aware that the borrower has some of that commodity. If they weren't aware of that, the transaction is nonetheless permitted and can be collected.<ref>Shach 160:7, Taz 160:3, Bach 160:2, Chelkat Binyamin 160:25, Laws of Interest 14:8 p. 271</ref> | ||
# Ideally both parties should be aware that it is as if the borrower is selling his commodity to the lender.<ref>Chachmat Adam (Shaarei Tzedek 134:2)</ref> | # Ideally both parties should be aware that it is as if the borrower is selling his commodity to the lender.<ref>Chachmat Adam (Shaarei Tzedek 134:2)</ref> | ||
# The borrower needs to actually own some of the commodity to permit this transaction and it isn't enough that people owe | # The borrower needs to actually own some of the commodity to permit this transaction and it isn't enough that people owe him some of that commodity.<ref>Gemara Bava Metsia 63b, Shulchan Aruch 160:2</ref> If the borrower has some of that commodity that is deposited with someone else that is sufficient to consider him yesh lo.<ref>Bet Yosef YD 162:2 writes that an item deposited with someone else (Pikadon) wherever it is is considered yours that it should be considered yesh lo for seah bseah. Tosfot Bava Metsia 6a writes that a person owns his pikadon can he sanctify it.</ref> If the borrower has some of that commodity but he borrowed it previously in a permitted fashion, some poskim say that it is sufficient to consider it yesh lo.<ref>Shulchan Aruch 160:2 holds that if he borrowed the commodity it is considered yesh lo since currently it is his. However, in Bet Yosef it is clear he is disagreeing with the Talmid Harashba who says it isn't yesh lo since he is going to have to return it. Bach 160:2 sides with the Talmid Harashba. Shach 160:8 follows the Bach. Taz 160:4 differentiates between where the original loan was made separately from the loan in which case it is yesh lo, whereas if the permitted loan was done only to permit the later loan which isn't yesh lo.</ref> | ||
# It is insufficient for the borrower to have enough money or property to be able to repay the loan as long as the borrower doesn't own any of the commodity and there isn't any fixed marketplace price.<ref>Tosfot b"m 72b s.v. ein wonders why seah bseah isn't permitted if the borrower has any money or property with which he could use to buy the commodity to repay the loan even if he doesn't have that commodity and there's no marketplace price. In fact, the Hagahot Ashri 5:75 permits lending seah bseah if the borrower has money to buy the commodity to repay the loan. Bet Yosef 162:3 cites the Rambam Malveh Vloveh 10:1, Rif 43a, and Rosh b"m 5:61 who disagree with the Hagahot Ashri and concurs with their view.</ref> | |||
===Yatza Hashaar=== | ===Yatza Hashaar=== | ||
# If there is a price that is fixed in the marketplace for that commodity it is permitted to lend that commodity.<ref>The Bahag read the Gemara Bava Metsia 72b as saying that it is permitted to lend a commodity if there is a fixed marketplace price. Rashi and Tosfot s.v. ein cite the Bahag. Rif 43a and Rambam Malveh Vloveh 10:1 agree. Tur and Shulchan Aruch 162:3 codify the Bahag.</ref> | # If there is a price that is fixed in the marketplace for that commodity it is permitted to lend that commodity.<ref>The Bahag read the Gemara Bava Metsia 72b as saying that it is permitted to lend a commodity if there is a fixed marketplace price. Rashi and Tosfot s.v. ein cite the Bahag. Rif 43a and Rambam Malveh Vloveh 10:1 agree. Tur and Shulchan Aruch 162:3 codify the Bahag.</ref> | ||
