When Is It Permitted to Benefit the Lender: Difference between revisions
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When Is It Permitted to Benefit the Lender (view source)
Revision as of 03:44, 5 May 2020
, 5 May 2020→Collateral Fields
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# There’s no prohibition to do a non-financial favor after the loan was paid up. <Ref> Birkei Yosef Y”D 160:11, The Weekly Halachah Discussion (vol 2, pg 348), Malveh Hashem (vol 1, 8:30) </ref> | # There’s no prohibition to do a non-financial favor after the loan was paid up. <Ref> Birkei Yosef Y”D 160:11, The Weekly Halachah Discussion (vol 2, pg 348), Malveh Hashem (vol 1, 8:30) </ref> | ||
==Collateral Fields== | ==Collateral Fields== | ||
# It is forbidden for a lender to use the collateral that the borrower provided without certain conditions.<ref>Shulchan Aruch 164:4</ref> | # It is forbidden for a lender to use the collateral that the borrower provided without certain conditions.<ref>Shulchan Aruch 164:4</ref> According to Ashkenazim it is permitted for a borrower to eat the fruit of the collateral field if either he pays for the fruit or there is a condition that the borrower can't kick him out of the field at any time. However, according to Sephardim it is always forbidden unless they use a system in which the fruit of the collateral serves as the pay of the loan and at a certain date the fruit are considered to have paid off the loan.<ref>The opinion of Rashi (B"m 71a s.v. lo mesalkinan) is that it is permitted for a lender to eat the fruit except for where they kick out the lender at any time and he isn't pay for the fruit. Even then it is only rabbinic. Tosfot b"m 64b and Rosh b"m 5:34 agree. Rashba b"m 68a s.v. linyan holds that if he pays it is permitted while if he doesn't it is forbidden. The Rif b"m 38b and Rambam Malveh Vloveh 6:7 hold it is forbidden in all cases for the lender to eat the fruit. The only pay to permit a lender to benefit from the fruit is if they use the Mashkanta Dsura method. Under the Mashkanta Dsura the fruit of the collateral serve as the payment of the loan and after a certain amount of time the field is returned to the borrowed for nothing else in exchange. The Shulchan Aruch 172:1 seems to follow the opinion of the Rif, while the Rama follows the opinion of the Rabbenu Tam and also cites Rashba, however, he notes that each place should follow their minhag. | ||
The Shach 172:1 clarifies that the Shulchan Aruch holds for the contingency of Mashkanta Dsura to be effective it needs to have the language of that the loan will be paid by a certain time and the field will be returned, which implies a sale as opposed to a loan. Additionally, it must be the case that the lender can't force the borrower to repay the loan at any time.</ref> | |||
# If the lender eats the fruit of the field of the borrower that was a collateral some say that it is Biblical interest,<Ref>Shulchan Aruch Y.D. 164:4</ref> while others hold it is only rabbinic interest.<ref>Rama 164:4</ref> | # If the lender eats the fruit of the field of the borrower that was a collateral some say that it is Biblical interest,<Ref>Shulchan Aruch Y.D. 164:4</ref> while others hold it is only rabbinic interest.<ref>Rama 164:4</ref> | ||
==Payments from a Third Party to Create a Loan== | ==Payments from a Third Party to Create a Loan== | ||
# It is permitted to give someone money in order that they lend money to someone else.<ref>Gemara Bava Metsia 69b</ref> That is only permitted on condition that the giver isn’t reimbursed by the borrower. Furthermore, the borrower can’t tell the lender that the giver is giving on his behalf.<ref>Rosh b”m 5:47 holds that it is necessary to have 3 conditions in order for someone to give a gift to a lender. 1) the giver isn’t reimbursed by the borrower, 2) the borrower can’t tell the lender that he should lend him because of that gift, and 3) the borrower can’t initiate to have someone give a gift to the lender. The Ramban b”m 69b s.v. shari disagrees with condition 3 since ultimately the money isn’t given from the borrower it is permitted. Additionally, it is clear that the Ramban forbade asking an agent to give a gift for him. Ritva 69b s.v. amar accepts the Ramban that it is permitted to convince the giver to give the gift and he even allows the borrower to reimburse the giver since the giver gave it on his own. Shulchan Aruch Y.D. 160:13 accepts the Ramban but still insists that the first two conditions are necessary. Pitchei Teshuva 160:9 quotes the Mishna Lmelech Malveh 5:14 and Shaar Hamelech who think that according to the Ramban the second condition isn’t necessary. Chelkat Binyamin 160:128 quotes a dispute about this point and is lenient only in an extenuating circumstance as Shulchan Aruch implies that this second condition is absolutely necessary.</ref> | # It is permitted to give someone money in order that they lend money to someone else.<ref>Gemara Bava Metsia 69b</ref> That is only permitted on condition that the giver isn’t reimbursed by the borrower. Furthermore, the borrower can’t tell the lender that the giver is giving on his behalf.<ref>Rosh b”m 5:47 holds that it is necessary to have 3 conditions in order for someone to give a gift to a lender. 1) the giver isn’t reimbursed by the borrower, 2) the borrower can’t tell the lender that he should lend him because of that gift, and 3) the borrower can’t initiate to have someone give a gift to the lender. The Ramban b”m 69b s.v. shari disagrees with condition 3 since ultimately the money isn’t given from the borrower it is permitted. Additionally, it is clear that the Ramban forbade asking an agent to give a gift for him. Ritva 69b s.v. amar accepts the Ramban that it is permitted to convince the giver to give the gift and he even allows the borrower to reimburse the giver since the giver gave it on his own. Shulchan Aruch Y.D. 160:13 accepts the Ramban but still insists that the first two conditions are necessary. Pitchei Teshuva 160:9 quotes the Mishna Lmelech Malveh 5:14 and Shaar Hamelech who think that according to the Ramban the second condition isn’t necessary. Chelkat Binyamin 160:128 quotes a dispute about this point and is lenient only in an extenuating circumstance as Shulchan Aruch implies that this second condition is absolutely necessary.</ref> | ||
