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)
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==Gifts or Favors from the Borrower== | ==Gifts or Favors from the Borrower== | ||
#It is forbidden to give a gift or interest even before or after a loan from another Jew and certainly during the loan.<ref>Mishna Bava Metsia 75b, Shulchan Aruch YD 160:6</ref> If someone does so they violated avak ribbit.<ref>Shulchan Aruch YD 160:6, Shach 160:8. Bet Yosef 160:5 inquires whether giving a gift after the loan that was specified for the loan is considered a | #It is forbidden to give a gift or interest even before or after a loan from another Jew and certainly during the loan.<ref>Mishna Bava Metsia 75b, Shulchan Aruch YD 160:6</ref> If someone does so they violated avak ribbit.<ref>Shulchan Aruch YD 160:6, Shach 160:8. Bet Yosef 160:5 inquires whether giving a gift after the loan that was specified for the loan is considered a biblical violation of ribbit or only rabbinic. He notes that the Rambam Malveh Vloveh 6:3 who writes that one only violates ribbit biblically if it was specified at the time of the initial loan would think this is only rabbinic ribbit. See Bet Yosef 166:3 that perhaps Rashi holds it is biblical.</ref> | ||
===Before or After the Loan=== | ===Before or After the Loan=== | ||
# Some say that it is permitted to give a gift before or after the loan from another Jew if you don’t specify that it is because of the loan.<ref>Tur 160:6, Bet Yosef citing Rosh b"m 5:67, Hagot Mordechai 433, Smak 260, and Rashi 73b s.v. achulei, and Rama 160:6. Smag cited by Tur 160:6 makes a compromise to allow it if it is a small gift. Rashi 73b s.v. achulei implies that as long as one doesn’t specify that a gift isn’t because of the loan it is permitted even at the time of returning the loan. However, the Rosh b”m 5:67 argues that it is only permitted after payment of the loan. Bet Yosef 160:4 cites the Talmidei Harashba who says that it is only permitted to give an extra gift if it was a sale and not a loan.</ref> However, others disagree.<ref>Rambam Malveh Uloveh 5:11, Shulchan Aruch 160:6</ref> Ashkenazim follow the first opinion and Sephardim the second.<ref>Laws of Ribbis p. 87 is lenient.</ref> | # Some say that it is permitted to give a gift before or after the loan from another Jew if you don’t specify that it is because of the loan.<ref>Tur 160:6, Bet Yosef citing Rosh b"m 5:67, Hagot Mordechai 433, Smak 260, and Rashi 73b s.v. achulei, and Rama 160:6. Smag cited by Tur 160:6 makes a compromise to allow it if it is a small gift. Rashi 73b s.v. achulei implies that as long as one doesn’t specify that a gift isn’t because of the loan it is permitted even at the time of returning the loan. However, the Rosh b”m 5:67 argues that it is only permitted after payment of the loan. Bet Yosef 160:4 cites the Talmidei Harashba who says that it is only permitted to give an extra gift if it was a sale and not a loan.</ref> However, others disagree.<ref>Rambam Malveh Uloveh 5:11, Shulchan Aruch 160:6</ref> Ashkenazim follow the first opinion and Sephardim the second.<ref>Laws of Ribbis p. 87 is lenient.</ref> | ||
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===Business Obligations Upon the Borrower=== | ===Business Obligations Upon the Borrower=== | ||
# It is forbidden to lend money on condition that the borrower does business with him or someone else<ref>Chelkat Binyamin 160::249</ref> specifically. There is a doubt if it is | # It is forbidden to lend money on condition that the borrower does business with him or someone else<ref>Chelkat Binyamin 160::249</ref> specifically. There is a doubt if it is biblical interest or only rabbinic interest.<Ref>Shulchan Aruch YD 160:23. Taz 160:22 disagrees that it is certainly forbidden for a borrower to give trumah to a kohen lender since the lender is gaining but doing business with someone isn’t considered a gain since he is paying for a service. Nekudat Hakesef 160:23 writes that if the lender didn’t have a lot of business and this agreement gets him more business it is forbidden. Chelkat Binyamin 160:248 is strict for Shulchan Aruch certainly in a case of hiring a worker.</ref> | ||
#If the lender has a job it is forbidden to stipulate that the borrower use the lender for his services whenever he needs that type of service.<ref>Shulchan Aruch 160:23</ref> | #If the lender has a job it is forbidden to stipulate that the borrower use the lender for his services whenever he needs that type of service.<ref>Shulchan Aruch 160:23</ref> | ||
# If the borrower has a job it is forbidden to stipulate that the borrower do that job even for a fair price for the lender whenever the lender needs it.<ref>Chelkat Binyamin 246 writes that the Gra 167:1 compares it to S"A YD 160:23. Chelkat Binyamin writes that according to the second answer of the Shach it is permitted but we shouldn't follow that answer alone.</ref> | # If the borrower has a job it is forbidden to stipulate that the borrower do that job even for a fair price for the lender whenever the lender needs it.<ref>Chelkat Binyamin 246 writes that the Gra 167:1 compares it to S"A YD 160:23. Chelkat Binyamin writes that according to the second answer of the Shach it is permitted but we shouldn't follow that answer alone.</ref> | ||
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===If Lender Benefited from the Borrower's Property=== | ===If Lender Benefited from the Borrower's Property=== | ||
# If someone lent money he may not let the lender use his house for free. If he does that is considered rabbinic interest. If the house is up for rent then the lender needs to return the value of the rent. If the house isn't for rent and the owner wouldn't rent it, some say that it needs to be returned, while others holds there's no obligation to return it.<ref>Shulchan Aruch YD 166:1 writes that it doesn't need to be returned like the Ramban, but also cites the Rambam who says it is rabbinic interest and needs to be returned.</ref> | # If someone lent money he may not let the lender use his house for free. If he does that is considered rabbinic interest. If the house is up for rent then the lender needs to return the value of the rent. If the house isn't for rent and the owner wouldn't rent it, some say that it needs to be returned, while others holds there's no obligation to return it.<ref>Shulchan Aruch YD 166:1 writes that it doesn't need to be returned like the Ramban, but also cites the Rambam who says it is rabbinic interest and needs to be returned.</ref> | ||
# If someone stipulates that his borrower can use his property for free, if the house is usually rented out, that is | # If someone stipulates that his borrower can use his property for free, if the house is usually rented out, that is biblical interest and must be returned. Even if it isn't usually rented out it is still rabbinic interest and must be returned.<ref>Shulchan Aruch 166:2 cites both the opinion of the Rosh and not the Rambam who says it is always biblical interest even if it isn't usually rented out.</ref> | ||
# If the stipulation to use the borrower's property happened after the original loan but it happened when they decided to extend the loan, it is a dispute if it is | # If the stipulation to use the borrower's property happened after the original loan but it happened when they decided to extend the loan, it is a dispute if it is biblical interest.<Ref>Shulchan Aruch 166:2 cites the dispute between the Rambam that it is rabbinic interest and the Rashi that it is rabbinic.</ref> | ||
===Hiring the Lender for a Job=== | ===Hiring the Lender for a Job=== | ||
# It is forbidden to stipulate that you will lend me money and I'll hire you for a fair price because that is considered as though one is paying them for the loan. There is a dispute if this is | # It is forbidden to stipulate that you will lend me money and I'll hire you for a fair price because that is considered as though one is paying them for the loan. There is a dispute if this is biblical or rabbinic interest.<ref>Maharam (kirmona edition, responsa 257), Rama Y.D. 166:3. Chelkat Binyamin 160:43 writes that the Maharam writes that it is biblical interest, while the Rama 166:3 implies it is only rabbinic interest. He concludes that it is an unresolved dispute.</ref> | ||
# It is forbidden to lend money to someone and in the same situation be hired by him for a fare price because that appears to be interest. However, it is permitted if it is done in two settings. Alternatively, it is permitted if the loan is given as a complete gift even though the borrower is likely to give the gift back.<ref>Rama 166:3, Chelkat Binyamin 166:45, Shulchan Aruch Y.D. 177:13</ref> | # It is forbidden to lend money to someone and in the same situation be hired by him for a fare price because that appears to be interest. However, it is permitted if it is done in two settings. Alternatively, it is permitted if the loan is given as a complete gift even though the borrower is likely to give the gift back.<ref>Rama 166:3, Chelkat Binyamin 166:45, Shulchan Aruch Y.D. 177:13</ref> | ||
===Right of First Refusal=== | ===Right of First Refusal=== | ||
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# Mashkanta Dsura is equally effective for a house as it is for a field.<ref>Shulchan Aruch Y.D. 172:1, Shach 172:4</ref> | # Mashkanta Dsura is equally effective for a house as it is for a field.<ref>Shulchan Aruch Y.D. 172:1, Shach 172:4</ref> | ||
# There is no minimum price above a [[pruta]] that the lender has to offer the borrower for the fruits each year.<ref>Shulchan Aruch Y.D. 172:1 writes a small amount. Shach 172:6 writes that it doesn't need to be the amount set by the Torah to redeem a field which is a sela and a pundiyon for a field the size of a chomer unlike the opinion of the Hagahot Mordechai 436. Netivot Moshe Shach 172:2 writes that perhaps even the Hagahot Mordechai would agree for a Mashkanta Dsura and only held his opinion with respect to a regular collateral. Chelkat Binyamin 172:1 p. 424 s.v. umenakeh based on Radvaz 186 writes that perhaps one couldn't pay such a small amount that it would be evident that it is because of interest. However, Chelkat Binyamin isn't certain that it applies to Mashkanta Dsura.</ref> | # There is no minimum price above a [[pruta]] that the lender has to offer the borrower for the fruits each year.<ref>Shulchan Aruch Y.D. 172:1 writes a small amount. Shach 172:6 writes that it doesn't need to be the amount set by the Torah to redeem a field which is a sela and a pundiyon for a field the size of a chomer unlike the opinion of the Hagahot Mordechai 436. Netivot Moshe Shach 172:2 writes that perhaps even the Hagahot Mordechai would agree for a Mashkanta Dsura and only held his opinion with respect to a regular collateral. Chelkat Binyamin 172:1 p. 424 s.v. umenakeh based on Radvaz 186 writes that perhaps one couldn't pay such a small amount that it would be evident that it is because of interest. However, Chelkat Binyamin isn't certain that it applies to Mashkanta Dsura.</ref> | ||
# If the lender eats the fruit of the field of the borrower that was a collateral some say that it is | # 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 pays the borrower so that he is obligated to fix somethings with the collateral it is permitted. However, if the lender pays the borrower so that he should accept responsible for everything about the collateral such that if it is destroyed he is to replace it that is forbidden.<Ref>Shulchan Aruch Y.D. 172:3</ref> | # If the lender pays the borrower so that he is obligated to fix somethings with the collateral it is permitted. However, if the lender pays the borrower so that he should accept responsible for everything about the collateral such that if it is destroyed he is to replace it that is forbidden.<Ref>Shulchan Aruch Y.D. 172:3</ref> | ||
# It is permitted to redeem a collateral part at a time, however, if there was a stipulation for the lender to eat the fruit for a certain deduction he can continue to do so the entire duration of the originally stipulated loan.<ref>Rama 172:3, Shach 172:22, Gra 172:15</ref> | # It is permitted to redeem a collateral part at a time, however, if there was a stipulation for the lender to eat the fruit for a certain deduction he can continue to do so the entire duration of the originally stipulated loan.<ref>Rama 172:3, Shach 172:22, Gra 172:15</ref> | ||
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==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> | ||
# Some poskim add that the borrower may not convince the giver to give a gift to the lender.<ref>The Rosh Bava Metsia 5:47 held it is forbidden for someone to ask someone to give a gift to someone in order that they lend for them since doing so makes the giver into an agent of the borrower. However, the Ramban 69b s.v. shari disagrees. Since the borrower isn’t paying for this gift and the money is coming from a third party it is considered as though the money wasn’t given from the borrower to the lender and is permitted. Rashba 69b s.v. ha writes that the Raavad held like the Rosh and the Ramban argued. Shulchan Aruch 160:13 follows the Ramban but cites the Rosh as an individual opinion.</ref> There is what to rely upon to be lenient.<ref>Shulchan Aruch 160:13 follows the Ramban as he does he writes in the Bet Yosef that since it is only rabbinic one can be lenient. Shach 160:18 cites this. Chelkat Binyamin 160:126 agrees. See however Pitchei Teshuva 160:9 who cites the Gedulei Trumah that this dispute is about a | # Some poskim add that the borrower may not convince the giver to give a gift to the lender.<ref>The Rosh Bava Metsia 5:47 held it is forbidden for someone to ask someone to give a gift to someone in order that they lend for them since doing so makes the giver into an agent of the borrower. However, the Ramban 69b s.v. shari disagrees. Since the borrower isn’t paying for this gift and the money is coming from a third party it is considered as though the money wasn’t given from the borrower to the lender and is permitted. Rashba 69b s.v. ha writes that the Raavad held like the Rosh and the Ramban argued. Shulchan Aruch 160:13 follows the Ramban but cites the Rosh as an individual opinion.</ref> There is what to rely upon to be lenient.<ref>Shulchan Aruch 160:13 follows the Ramban as he does he writes in the Bet Yosef that since it is only rabbinic one can be lenient. Shach 160:18 cites this. Chelkat Binyamin 160:126 agrees. See however Pitchei Teshuva 160:9 who cites the Gedulei Trumah that this dispute is about a biblical question. </ref> | ||
# It is certainly forbidden to hire someone to get someone to lend you money and that hired agent pays the lender some of that money.<ref>Taz 160:7</ref> | # It is certainly forbidden to hire someone to get someone to lend you money and that hired agent pays the lender some of that money.<ref>Taz 160:7</ref> | ||
===Gifts between the Borrower and a Guarantor=== | ===Gifts between the Borrower and a Guarantor=== | ||
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==Payments from a Borrower to a Third Party== | ==Payments from a Borrower to a Third Party== | ||
#It is forbidden to ask a borrower to pay back anything in excess of the capital to someone else or a tzedaka. That is considered | #It is forbidden to ask a borrower to pay back anything in excess of the capital to someone else or a tzedaka. That is considered biblical ribbit.<ref>Tosfot Bava Metsia 71b s.v. maso writes that it is obviously forbidden to have the borrower pay someone else for the loan since that is like he paid the original lender based on the principle of arev. An arev is a guarantor who is indebted because money was paid to someone else based on his word, similarly, the interest is being paid to the third party based on the agreement of the lender. This is true even if the third party isn’t Jewish. Bet Yosef 160:14 cites the Haghot Ashri 5:47, Rabbenu Yerucham 1:8 27b, Mordechai b”m 327-328, Ran responsa 29:7 who agree. Mordechai 327 specifically forbids asking the borrower to give money to tzedaka.</ref> If the third party already took the money the lender needs to return to the borrower the amount of that gift to the third party since he caused interest to be given.<ref>Mordechai b”m 327-328 clarifies that since giving the interest to a third party is biblical interest it must be returned by the lender. This is cited by the Shach 160:19. Even though the Pitchei Teshuva 160:11 quotes that Rabbi Akiva Eiger wasn’t sure about this, Chelkat Binyamin p. 78 clarifies that it was only the questioner to Rabbi Eiger who wasn’t sure but Rabbi Eiger certainly would accept the Shach. </ref> | ||
#It doesn’t matter if the lender initiated this stipulation or the borrower initiated the stipulation and the lender agreed to lend on that condition.<Ref>Rama 160:14</ref> | #It doesn’t matter if the lender initiated this stipulation or the borrower initiated the stipulation and the lender agreed to lend on that condition.<Ref>Rama 160:14</ref> | ||
===Payments to a Third Party to Create a Loan=== | ===Payments to a Third Party to Create a Loan=== | ||
