When Is It Permitted to Benefit the Lender: Difference between revisions
From Halachipedia
When Is It Permitted to Benefit the Lender (view source)
Revision as of 21:46, 16 June 2020
, 16 June 2020→Right of First Refusal
| Line 65: | Line 65: | ||
===Right of First Refusal=== | ===Right of First Refusal=== | ||
# If a person lent money to another Jew so that they could buy a piece of real estate and added a clause that granted the right of first refusal to the lender that would be forbidden as interest.<ref>Because the lender is stipulating that he has the right to buy back that piece of real estate if the seller chooses to sell it that is considered a benefit he is extracting from the borrower. According to the Nekudat Hakesef 160:23's first answer it is forbidden unless that original piece of real estate was a collateral for the loan. According to the second answer it could be permitted if it is a fair price for the real estate. Additionally, the Chavot Daat answers that it is forbidden to stipulate the right to buy a real estate unless it is sold retroactively from the time of the loan so that the loan reverts to a sale and the ownership was in the hands of the "lender" for the duration of the "loan". The only answer that would permit this deal is the second answer of the Shach. The poskim do not rely on the second answer of the Shach alone (Chelkat Binyamin 172:72, Brit Yehuda 11:25).</ref> This could be remedied by having the lender pay the borrower the standard brokerage fee for not having to pursue this deal.<ref>[https://businesshalacha.com/en/business-weekly/archive/78?selected=1 Business Halacha (Beshalach 5778)]</ref> | # If a person lent money to another Jew so that they could buy a piece of real estate and added a clause that granted the right of first refusal to the lender that would be forbidden as interest.<ref>Because the lender is stipulating that he has the right to buy back that piece of real estate if the seller chooses to sell it that is considered a benefit he is extracting from the borrower. According to the Nekudat Hakesef 160:23's first answer it is forbidden unless that original piece of real estate was a collateral for the loan. According to the second answer it could be permitted if it is a fair price for the real estate. Additionally, the Chavot Daat answers that it is forbidden to stipulate the right to buy a real estate unless it is sold retroactively from the time of the loan so that the loan reverts to a sale and the ownership was in the hands of the "lender" for the duration of the "loan". The only answer that would permit this deal is the second answer of the Shach. The poskim do not rely on the second answer of the Shach alone (Chelkat Binyamin 172:72, Brit Yehuda 11:25).</ref> This could be remedied by having the lender pay the borrower the standard brokerage fee for not having to pursue this deal.<ref>[https://businesshalacha.com/en/business-weekly/archive/78?selected=1 Business Halacha (Beshalach 5778)]</ref> | ||
===Paying Taxes=== | |||
# It is forbidden for the borrower to pay for the taxes that the lender owes even if that tax is an income tax or otherwise generated by the fact that he borrowed the money.<ref>Shulchan Aruch 177:8. The Baal Hatrumot 4:46:17-18 writes that one can arrange that if the borrower invests the money and doesn't profit he is exempt from paying the tax, but if he makes money then he needs to pay the tax up to the amount he made. If he made more than the tax he can keep the excess. The Shach 172:32 cites this. The Gedulei Trumah 4:46:18 asks that such an arrangement is unfairly beneficially to the lender (''karov lsachar vrachok mhefsed''). Rabbi Akiva Eiger 172:32 quotes this. Chelkat Binyamin 177:118 indeed has no answer to this question. He explains that if the tax is upon the lender to pay then it is forbidden for the borrower to pay it. However, if the tax is only upon the borrower because he borrowed the money then it is totally permitted for him to pay it. Therefore, he is at a loss to explain why the Baal Hatrumot wrote that it is interest to pay the tax but permitted with the above stipulation. The Hagahot Vhaarot on Tur (Shirat Devora 5776 Edition fnt. 104) based on Gra 177:28 and Gemara Bava Metsia 73b answers that really the tax is upon the borrower and that is why it should be permitted for the borrower to pay. Nonetheless, since it was a loan it appears as interest and is forbidden. That issue of appearing as interest can be skirted if they make an arrangement that doesn't obligate the borrower to pay the tax in all cases and rather appears as a cap on his profits. </ref> | |||
# If there is a tax that applies upon the borrower because he borrowed then he can and should pay that tax.<ref>Chelkat Binyamin 177:118</ref> | |||
==Non-Financial Benefit== | ==Non-Financial Benefit== | ||
