Subjugating their Poor Brethren

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Rav Pappa said to Rava: My master should see how the rabbis pay the head tax for others, and then they work them excessively. Rava replied: I might have died without ever having told you this thing: Rav Sheishes said: The seal of bondage of these people lies in the king’s archives, and the king has decreed that he who does not pay his head tax should be made the servant of the one who pays it on his behalf.

Other Rishonim explain this Gemora differently: they say that the rabbis violated the prohibition of ribbis. This is because they paid the tax for their poor brethren, and by working them excessively, they were paid back more than what they laid out.

The Radvaz asks: How can the principle of “the law of the land is the law” trump the prohibition of subjugating a fellow Jew excessively?

He answers that since the excessive work is not regarded as money, for by law, they are obligated to serve them; the prohibition falls off by itself, for if there is no loan, there cannot be any ribbis.

The Ritva writes that by paying their taxes to the king, they acquire them as slaves until they are repaid; the money is not regarded as a debt at all.

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Paying and Lashes

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The braisa states: If a document contained a provision to collect interest (in a forbidden fashion), we give him a fine. Not only is he unable to collect the interest, but he cannot even collect the principle. These are the words of Rabbi Meir. The Chachamim say: He can collect the principle, but not the interest.

Shulchan Aruch (C”M 52:1) rules according to the Chachamim that the principle may be collected.

The Ketzos Hachoshen (38:1) asks: If we hold that when one violates a negative precept, he cannot be liable to pay even if he does not receive lashes (chayvei malkos shogegin); then how can the principle be collected? Behold, the borrower is violating the prohibitions of “You shall not impose interest upon him,” and “You shall not give interest to your brother”? If so, why should the borrower be liable to pay? [This is a type of kim leih bid’rabbah minei (whenever someone is deserving of two punishments, he receives the one which is more severe)!?]

He answers based on one opinion that holds that the borrower does not transgress the prohibition of giving interest until he actually gives it. Accordingly, we can say that the principle of kim leih bid’rabbah minei does not apply here, for the liability to pay and the action which would theoretically cause him to be liable for lashes are not simultaneous. In such types of cases, he will not be exempt from paying.

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Interest-Free Loans

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The Gemora quotes a different version of Rav Huna’s statement. Rav Yosef explained that the verse discussing lending states: if you will lend money to Ami – my nation, to the Ani – the poor one – Imach – with you. This verse teaches that the priority in lending is first to a Jew over a non Jew (Ami), then to a poor person over a rich person (Ani), and to a local poor person over a poor person somewhere else (Imach). Rav Huna says that the priority given to a Jewish debtor is even when the non Jewish debtor will pay interest.

The Pnei Yehoshua discusses what the halachah would be in a case where if he would lend money with interest to a gentile, he would gain substantially. Is he still required to lend to a Jew without interest?

He questions the basis of the halachah: Do we not say that whenever a person would suffer a loss, his needs take precedence over others?

He answers that it is different here, for the mitzvah to lend to a poor person is a mitzvah of tzedakah; one is required to do whatever is in his means in order to sustain his fellow Jew. One must be concerned about his own losses only when the mitzvah regarding his fellow is to prevent him from a loss.

The Megilas Esther writes that one is obligated to lend to a Jew interest-free even if he has the possibility of lending to a gentile for a substantial amount of interest. This is because the Jew is not losing; he is merely not gaining.

The Shaar Hamishpat disagrees with this, and Ahavas Chesed cites several different opinions with respect to this issue.

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Don't Call him Evil

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The Gemora states: If he calls him a evil person, he (the insulted person) may descend against his life (he is permitted to hate him to such a extent that he may attempt to reduce his income).

Rashi explains this to mean that the insulted person may fight with him as if the libeler hit him, and it is as if he was coming to kill him. Furthermore, Rashi heard that he can compete against him in his line of business in an attempt to decrease his income.

Rashi asks that it is hard to understand how the Chachamim would allow this person to take revenge.

Some answer that here it is permitted because he suffered personally and he was subject to a public humiliation. The Chafetz Chaim, however, writes that it is unclear if this is the accepted halachah, and therefore, one should be stringent in the matter and not take revenge.

Others answer that it is permitted because if people think that he is indeed a evil person, his income will suffer tremendously, for people will not have compassion on him.

Tosfos writes in the name of the Gaonim that it is permitted to burn one-third of his grain. Tosfos concludes that this is bewildering, for where is the source for this?

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Can you Pay Someone to be a Cosigner for a Loan?

by: Reb Avi Lebowitz

There is a disagreement between the Taz (170:3) and Nekudas Hakesef whether one can hire someone to be a cosigner on a loan where the cosigner has full responsibility as much as the borrower himself (areiv shluf dotz).

The Chochmas Adam in his sefer Binas Adam (sha'ar mishpat tzedek 2) points out that this discussion took place before the Ritva on Bava Metzia was accessible. However, now that it is accessible, the answer is resolved. Rava had stated that Reuven may pay Shimon to go convince Levi to lend money to Reuven because Reuven is only paying Shimon for s’char amirah (payment for talking). The Ritva asks: Why does the Gemora need to permit it based on this rationale, it should be permitted anyway based on the other rationale that the Gemora suggests that the Torah only forbids interest that is paid directly from the borrower to the lender? The Ritva answer that we are referring to a case where Levi refuses to lend money to Reuven, but is willing to lend it to Shimon, who then goes and lends it to Reuven. Even though it emerges that, technically, Shimon is the one who lends to Reuven and therefore when Reuven pays him, it is ribbis that is paid from the borrower to the lender; it is nonetheless permitted since it is only s’char amirah.

The Binas Adam learns from the Ritva that it is only is a situation where Reuven doesn't request of Shimon to be an areiv shluf dotz; rather Shimon decides on his own to borrow from Levi and lend it to Reuven. But, if Reuven would be paying Shimon to be such a high level guarantor, it is as if he were hiring Shimon to borrow from Levi and then lend to him, which would constitute a prohibition of paying ribbis, since it is no longer just s’char amirah.

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The Famous Taz

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Estate Money and Interest

The Gemora allowed an administrator of an estate to invest the orphan’s money in an investment with favorable terms for them, although this is generally Rabbinically prohibited.

The Shulchan Aruch (YD 160:18), based on the Rambam and Rosh, applies this license to all Rabbinically prohibited interest, and extends this to money of charity, money donated to Torah scholars, and money donated for use in a synagogue.

What did the Torah Permit?

The Gemora quotes a statement of Rav Huna that prohibits charging interest from a non Jew. The Gemora debates why this is prohibited, and how to reconcile this statement with the verse and Mishna that seem to permit such a loan.

Tosfos (70b Tashich) asks why the Gemora was concerned with reconciling this Rabbinic law with the verse and Mishna, and answers that the Gemora assumed that the Sages would not prohibit something the Torah permitted.

The Taz states in numerous places that although the Sages have leeway to enact their own new prohibitions, they may not prohibit something explicitly permitted by the Torah.

The Taz in YD 117:1 applies this to the Rabbinic prohibition on commerce in forbidden foods. Since the Torah explicitly allows one to sell neveilah meat to a non Jew, the Rabbinic prohibition had to allow for such commerce when one chanced upon the forbidden food, so as to not fully prohibit an act the Torah explicitly allows.

The Taz in OC 588:5 discusses a question raised by earlier poskim. We find the Sages prohibited the performance of numerous mitzvos on Shabbos (e.g., Shofar, Lulav), due to a concern of one accidentally carrying to perform the mitzvah. Why did the Sages not apply this to bris milah, prohibiting a bris milah which falls on a Shabbos.

The Taz says that since the Torah explicitly said that one must perform a bris milah on the eighth day, even if it is a Shabbos, the Sages could not prohibit it.

The Chavos Yair 142 challenges this Taz from our Gemora, among others. Our Gemora is an instance where the Sages prohibited an action explicitly permitted by the Torah – i.e., charging a non Jew interest on a loan. Therefore, the Chavos Yair rejects the Taz’s thesis.

Later poskim dispute the Chavos Yair’s disproof. The Shla, quoted by the Chasam Sofer (YD 106), says that the Sages did not prohibit charging a non Jew interest, since that is indeed explicitly permitted by the Torah. Instead, the Sages prohibited a Jew from lending to a non Jew at all, and only thereby precluded the Jew from receiving interest from him.

The Chasam Sofer (YD 106, 109) says that Tosfos themselves (70b Tashich, 64b v’Lo) seem to support the Taz, and actually explain the Gemora based on his principle. According to Tosfos, when the Gemora challenged Rav Nachman from the verse, the Gemora was stating that since the Torah explicitly allowed a Jew to charge a non Jew interest, the Sages cannot prohibit it. The Chasam Sofer says that the reason the Sages were allowed to do so is due to the exclusions built in to their prohibitions (for livelihood, or for a Torah scholar). Just as the Sages allowed commerce in forbidden food when the Jew chanced upon it in order to avoid explicitly prohibiting an act allowed by the Torah, so too, the Sages allowed charging a non Jew interest in some cases, to avoid explicitly such a prohibition.

Rav Moshe Feinstein (Igros Moshe OC 1:134) says that the Gemora’s answer that we read the verse only as tashich – explicitly allowing a Jew only to pay interest, means that the Torah never did explicitly allow a Jew to charge interest, giving the Sages the leeway to prohibit it. See Rabbi Akiva Eiger YD 117 on the Taz for more details.

Tosfos (70b Tashich) says that nowadays we lend money to non Jews with interest. Tosfos advances three reasons for this behavior:
1. The economic situation and lack of other professions available to Jews makes the interest necessary for the creditor’s basic needs, in which case it is permitted.
2. Ravina’s answer understood that the prohibition was to limit our interactions with non Jews. Since we are forced into such interactions due to economic circumstances, there is no added interaction that will be prevented by refraining from charging interest.
3. The second version of Rav Huna’s statement does not prohibit interest from a non Jew at all, but only prioritized an interest free loan to a Jew above it.

The Shulchan Aruch (YD 159:1) rules that charging interest from a non Jew is prohibited by the Sages, unless the creditor needs the interest for his basic needs, or is a Torah scholar. However, the Shulchan Aruch says that it is permitted nowadays, based on the first two reasons of Tosfos (see Shach 2).

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Power of a Word

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The Gemora relates the following: Mar bar Ameimar said to Rav Ashi: My father does business this way. If the sellers would come to him and say that they did not make this anticipated profit, he would believe them (without imposing an oath upon them; in such a case, he would only receive half of the actual profit, and not the amount written in the document; this way, he would avoid any ribbis concern).

Rav Ashi said: This is fine because your father is alive (and he will waive the amount written in the document). However, if he would die and the orphans would have a document saying that the merchants owed them a certain amount of money, wouldn’t they have to pay? This statement (talking about the death of Ameimar) was like an “error proceeding from a ruler,” and Ameimar died.

The Gemora in Moed Katan (18a) records the following incident: The Sage Shmuel paid a condolence visit to his brother Pinchas, who had lost a child. He asked him why he allowed his fingernails to grow although it was permitted to cut them. The rebuttal of Pinchas, “If such a tragedy as mine had befallen you, would you also show such disregard for mourning?” is described by the Gemora as an example of “an error proceeding forth from the ruler” (Koheles 10:5). The result of this apparent slip of the tongue was that Shmuel himself soon became a mourner because “there is a covenant for the lips” — a spoken word has the power to effect fulfillment. As proof of this power Rabbi Yochanan cites the statement made by the Patriarch Avraham, on his way to offer his son Yitzchak as a sacrifice, to the two young men accompanying them. “Stay here,” he told them “and I and the lad will return to you” (Bereishet 22:5), and did indeed result in their both returning.

How can we derive from here that a person should be careful with his words; this brought about a positive result that Yitzchak was saved?

The Chasam Sofer answers that to Avraham, it was regarded as undesirable, since he was unable to fulfill the will of Hashem.

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Concealing his True Stature

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The Mordechai (Gittin 461) relates that Rabbeinu Tam once instructed a Kohen to pour him some water. This caused one of his students to inquire as to how he could allow a Kohen to serve him, being that the Yerushalmi states that whoever uses a Kohen for his own needs is in violation of the prohibition of me’ilah (since the Kohen is sacred). Rabbeinu Tam's response was that the Kohen who served him in 12th century France was without the clothing of the Kohen and, therefore, not a Kohen (based upon the Gemora Sanhedrin 83b). The student persisted that if so, we shouldn’t give a Kohen the first aliyah. Rabbeinu Tam remained quiet. Rabbeinu Peter then suggested that a Kohen can voluntarily forfeit the respect due to him as a Kohen and, therefore, there was no problem with Rabbeinu Tam's use of him.

The Ta”z asks that the Kohen is not permitted to forfeit his kedushah and marry a divorcee!? What is the difference between the two?

He answers that it is only permitted for the Kohen to forfeit the respect due to him with respect to something that he will be deriving benefit from – e.g. to be an attendant for Rabbeinu Tam. However, something that the Torah explicitly prohibits, such as – marrying a divorcee, there is no option to forfeit that kedushah.

The Ta”z adds that the reason Rabbeinu Tam was quiet was not because he did not know what to answer; but rather, it was because he did not want to be considered a Torah scholar, for that would be the only reason that it would have been permitted. He cites our Gemora and Tosfos as a proof to this. The Gemora stated: Rav Kahana, Rav Pappa and Rav Ashi did not eat the produce from a pledged field even with a deduction. Ravina, however, did. Tosfos asks: How could Ravina eat the produce from a pledged field even with a deduction? Didn’t the Gemora say above that a Rabbinical scholar would not take produce in such an arrangement?

Tosfos answers that Ravina, due to his great humility, did not want to be regarded as a Rabbinical scholar. Ravina did not want people to be aware of his spiritual importance. The prohibition, which applied to other Torah scholars, did not apply to Ravina, for since he was not known as a Torah scholar, his conduct would not necessarily serve as an example to others.

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