Difference between revisions of "Interest with Non-Jews"

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# A Jew who lent a non-Jew money for interest can't stipulate the buyer resell it to him.<ref>Although the Rama 168:18 is lenient, both the Shach 168:57 and Taz 168:27 disagree.</ref>
 
# A Jew who lent a non-Jew money for interest can't stipulate the buyer resell it to him.<ref>Although the Rama 168:18 is lenient, both the Shach 168:57 and Taz 168:27 disagree.</ref>
 
# A Jew who lent a non-Jew money for interest can sell that debt to a Jew but can't stipulate that he'll sell that debt if the Jew also gives him an additional interest free loan.<ref>The Taz 168:24 in disagreeing with the Levush forbids this. Shach in Nekudat Hakesef and Chachmat Adam cited by Chelkat Binyamin 168:151 are lenient. Netivot Shalom 168:18:14:1 questions the Shach from Shulchan Aruch 166:3 and answers it. Chavot Daat 168:34 forbids because of Shulchan Aruch 160:23 and 172:4. Chelkat Binyamin thinks that even the Shach accepts part of the argument of the Chavot Daat and would forbid anytime that sale of the debt is at a lower price because of the fact that he is also receiving an interest free loan.</ref>
 
# A Jew who lent a non-Jew money for interest can sell that debt to a Jew but can't stipulate that he'll sell that debt if the Jew also gives him an additional interest free loan.<ref>The Taz 168:24 in disagreeing with the Levush forbids this. Shach in Nekudat Hakesef and Chachmat Adam cited by Chelkat Binyamin 168:151 are lenient. Netivot Shalom 168:18:14:1 questions the Shach from Shulchan Aruch 166:3 and answers it. Chavot Daat 168:34 forbids because of Shulchan Aruch 160:23 and 172:4. Chelkat Binyamin thinks that even the Shach accepts part of the argument of the Chavot Daat and would forbid anytime that sale of the debt is at a lower price because of the fact that he is also receiving an interest free loan.</ref>
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Shach's svara is like hefker Netivot Shalom 168:18:9
  
 
===Interest Gifted to A Jew or Non-Jew===
 
===Interest Gifted to A Jew or Non-Jew===

Revision as of 22:46, 25 March 2020

Who can you take interest from?

Non-Jews

  1. It is permitted to lend to and borrow from non-Jews with interest.[1]
  2. Nowadays in Israel it is forbidden to lend non-Jews money with interest since it is possible to do business with Jews exclusively. Yet it would be permitted in order to make a livelihood but not to make oneself wealthy.[2] Some poskim are lenient even in Israel.[3]
  3. Even outside Israel one should be strict if one can.[4] Some say that for an impersonal bank it is permitted since one hardly interacts with the non-Jews.[5]
  4. It is permitted to borrow with interest from non-Jews.[6]

Non-Religious Jew

  1. It is permitted to lend to a non-religious Jew with interest if he was brought up religious and later became non-religious.[7] Initially this should be avoided.[8]
  2. One may not lend a non-religious Jew who is raised as a non-religious Jew with interest.[9] This applies to conservative and reform Jews today.[10]
  3. Some say that it is permitted to lend the Karaites with interest.[11]

Arrangements of Loans Between Several Parties

Lending A Non-Jew's Money to A Jew with Interest

  1. If a person borrowed money from a non-Jew with interest it is forbidden to then lend that money to another Jew with interest.[12]
  2. If a person borrowed money from a non-Jew with interest and then before he returns it another Jew wants that loan and is willing to pay the interest to the non-Jewish lender, one may only give that loan to the second Jew under one of two methods. Both of these methods free the first Jew from any financial relationship with the second Jew:
    1. The non-Jew tells the first Jew to leave the money in a certain location and he will be exempt[13] and then the second Jew takes it from there.[14]
    2. The first Jew returns the money to the non-Jew and he then gives it to the second Jew. No words need to be spoken since it is understood that when the non-Jew took the money from the first Jew he was exempting him from his loan.[15]
    3. It isn't a solution for the non-Jew to simply tell the first Jew to hand the money over to the second Jew and he'll be exempt since that appears as though the two Jews lent money with interest.[16]

Lending with Interest with a Non-Jewish Agent

  1. A non-Jew who borrowed from a Jew and is ready to return the money, if he finds another Jew to borrow that money with interest can give it to him with interest. However, if the non-Jew brought the money to the lender Jew he can't lend it to another Jew since that considered a loan between the lender and the other Jew with interest. Obviously this is forbidden if the non-Jew actually gave the money back to the lender that the lender may not lend that money to a Jew with interest. Additionally it is forbidden if the non-Jew put the money on the ground for the other Jew to pick up and the lender stated that the non-Jew would be exempt once he placed the money on the ground. These are all considered Biblical interest.[17] However, if the non-Jew simply hands the money to the borrower Jew in the presence of the lender Jew, most rishonim hold that this is rabbinically forbidden since the non-Jew is an agent of the borrower. However, there is a minority opinion in the rishonim who allows this.[18] The halacha is not to accept this minority opinion.[19]
  2. It is forbidden for a Jew to arrange with a non-Jew to lend your money to him in order that he lend it to another Jew with interest.[20] After the fact it is forbidden to take the interest since the non-Jewish agent is merely a ruse and it was really a loan with interest from a Jew.[21]
  3. If the lender didn't know about the fact that the borrower appointed the non-Jew to borrow for him from a Jew with interest he can keep the interest[22] and some allow him to even collect the interest once it was arranged.[23] Sephardim are more strict and only allow this completely after the fact that the interest was collected.[24]
  4. If a Jew told a non-Jew to borrow for him from another non-Jew with interest and he went and borrowed from a Jew with interest the borrower can even pay the interest.[25]

Non-Jew borrowing with Interest from a Jew through a Jewish Agent

  1. If a non-Jew asks a Jew to borrow for him from another Jew with interest the Jewish agent may do his job as long as he says clearly that he is borrowing with interest on behalf of a non-Jew or the transaction is happening in the presence of the non-Jew.[26]
  2. The agent can't take upon himself responsibility for the capital or the interest. If he takes upon himself responsibility for either one that is considered as though the agent is a borrower and there is interest when the lender takes interest from the borrower.[27]
  3. The agent can't take upon himself responsibility for the collateral getting lost or stolen, rather the lender needs to take such responsibility. If he takes upon the regular type of responsibility as a shomer would generally take that is permitted. However, he may not take responsibility for unexpected circumstances.[28] If they didn't specify this responsibility and it was left unclear, after the fact, we can assume that the Jewish lender and the agent would want to arrange it in the permitted fashion.[29]
  4. If the non-Jew never comes to pay the loan with the interest the agent may not pay it.[30]
    1. Additionally, the lender may not force the agent to buy the collateral for the price of the capital and interest.[31]
    2. However, if the agent wants to buy the collateral for the capital and interest he can do so.[32]
  5. If the non-Jew never comes to pay the loan the lender can sell the collateral and keep the value. The agent can't stop the lender from doing so out of fear of the non-Jew since the lender isn't really incumbent to the agent or the non-Jew.[33] Some say that if the agent was originally appointed by the lender to do this loan with the non-Jew, then if the agent is afraid of the ramifications of the lender selling the collateral, then the lender must listen and if he doesn't then he must pay for damages to the agent.[34]

Lending with Interest from a Non-Jewish with a Jewish Agent using a Security Deposit

Taking Mashkon from Non-Jew.png
Returning Mashkon to Non-Jew.png
  1. Some permit borrowing from a non-Jew with a security deposit so that they can in turn borrow with interest from another Jew with that security deposit. This is permitted since the non-Jew takes responsibility for the original loan and it is treated as two loans and not one. Ashkenazim can rely on this opinion.[35] Others hold that generally this is forbidden to arrange but if one explicitly tells the non-Jew that he has responsibility for the loan then it is permitted.[36]
  2. Even according to the strict opinion, a lender to a non-Jew with interest who collected a deposit from him which came originally from a Jew can collect the interest as long as he isn't certain that it was arranged improperly.[37] Some say that he may not collect the interest if he knew that it was a Jewish security deposit such as if it is a Jewish article of clothing.[38]
  3. If the original Jew wants to get his security deposit back from the other Jew who lent to the non-Jew and the non-Jew isn't cooperating, the lender Jew doesn't need to work with the borrower Jew since they didn't have any transaction one to another.[39]
  4. If a Jew has a security deposit of a non-Jew in his hands and the non-Jew direct him to use it to borrow from another Jew with interest on his behalf, the first Jew may do so.[40]

Non-Jew Selling Jewish Debt

  1. If a Jew owed a non-Jew capital and interest, that non-Jew can sell that debt to another Jew. If the non-Jew collects the interest it is permitted for the Jew to accept it, yet if he doesn't then the second Jew shouldn't collect the interest from the first Jew.[41]

Jew Selling Non-Jewish Debt

  1. If a Jew lent a non-Jew with interest upon a security deposit of the non-Jew. Then the non-Jew sold the security deposit to another Jew and he was told to pay the debt to the first Jew and collect the security deposit. This transaction is totally permitted since the loan was made between the Jew and non-Jew and then there was a sale of the non-Jewish debt to a Jew.[42]
  2. However, if the Jew who bought the debt then didn't pay off the debt immediately in order to redeem the deposit and only paid it after some time, thereby accruing a further interest charge upon the non-Jewish lender, the non-Jew may pay that interest charge to the Jewish lender even if the non-Jew in turn forces the Jewish buyer to pay him for that interest charge. But the Jewish buyer may not pay the interest to the Jewish lender because that would paying interest.[43]

When the Deposit was Taken Forcibly

  1. If a non-Jew took a security deposit from a Jew forcibly and then used it to borrow with interest from another Jew, that second jew may collect interest from the non-Jew but may not collect interest from the first Jew.[44] Some disagree and allow collecting the interest.[45]
  2. However, under the following two circumstances one may collect the interest according to everyone:
    1. If the force and responsibility of the loan rests upon the non-Jew besides for the security deposit then it is permitted to collect the interest from the first Jew.[46]
    2. Additionally, if the first Jew didn't know that his security deposit was going to be used to borrow from a Jew with interest it isn't any question of interest for him to pay the second Jew the interest to redeem his item.[47]

Selling a Non-Jew's Debt to Another Jew

  1. If one Jew lent money to a non-Jew with interest he can then sell that loan to another Jew and he should stipulate that this is a complete sale of the loan and they will no longer have any claims upon each other. Thereby the buyer becomes the new lender to the non-Jew and can collect interest. When there is a security deposit from the non-Jew that would have to be transferred to the second Jew with the same stipulation that it is a complete sale and they have no claims upon each other.[48] According to Ashkenazim it isn't necessary to make such a clear stipulation since it is assumed that this is the stipulation.[49]
  2. A Jew who lent to a non-Jew with interest can sell the non-Jew's loan from a certain date going forward. The first Jew would collect the interest until that date and the second from that date and on.[50]
  3. A Jew who lent a non-Jew for a certain percent he can sell that loan at a lower percent. For example, if the first Jew lent a non-Jew $100 for 10% a year and then resold that debt to another Jew for 5% a year.[51]
  4. A Jew who lent a non-Jew money for interest can then resell it to a Jew but he may not sell a portion of that loan to a Jew.[52]
  5. A Jew who lent a non-Jew money for interest can't stipulate the buyer resell it to him.[53]
  6. A Jew who lent a non-Jew money for interest can sell that debt to a Jew but can't stipulate that he'll sell that debt if the Jew also gives him an additional interest free loan.[54]

Shach's svara is like hefker Netivot Shalom 168:18:9

Interest Gifted to A Jew or Non-Jew

  1. It is forbidden to lend another Jew money in order that he give the interest to a non-Jew.[55]
  2. It is permitted for a Jew to borrow from a non-Jew even if afterwards the non-Jew gives the interest to a Jew.[56]

Sources

  1. The Gemara Bava Metsia 70b states that it is permitted to charge non-Jews ribbit and there is only a rabbinic prohibition to do so. The reason the rabbis forbade it is that they didn’t want people to learn from the non-Jews by interacting with them too much. They only permitted it for a talmid chacham or someone who needs to make money to survive. This is codified by the Rambam and Rif. However, Tosfot 70b s.v. tashich writes that today we lend with interest to non-Jews for three reasons: 1) we follow the opinion that there’s no rabbinic prohibition to lend to non-Jews at all. 2) Due to the high taxes we have to charge non-Jews interest otherwise financially wouldn’t survive and it is considered necessary for our livelihood. 3) Really based on the reason of the prohibition it is prohibited to do any business with non-Jews and if we didn’t do that we wouldn’t survive. Meiri b”m 70b agrees with reason two. Tur YD 159:1 cites the last reason of Tosfot. Shulchan Aruch and Rama Y.D. 159:1 simply writes that nowadays it is permitted to lend non-Jews with interest.
  2. Netivot Shalom YD 159:1:16 writes that today in Israel since it is possible to do without lending non-Jews with interest it is unclear if it is permitted to do so nowadays. Additionally, Rav Moshe Halevi in Malveh Hashem 5:3 writes that Jews who live in Israel should be strict not to lend non-Jews with interest since it is possible to transact with Jews and be financially stable. He explains that none of the reasons of Tosfot apply today except that perhaps we don't hold that there's any prohibition which is rejected. Similarly, Rav Shlomo Mazuz in Kerem Shlomo 159:8 is strict. Rav Ovadia Yosef in Halichot Olam v. 8 p. 3 writes that we hold that as long as it is difficult to do business only to Jews it is permitted in accordance with Tosfot, however, we do not hold that once the gezerah stopped applying it is nullified completely.
  3. Chut Shani 2:1 p. 39 writes that even nowadays it is permitted to lend a non-Jew with interest even though in Israel we can support ourselves without business to non-Jews. Since there is some business with non-Jews and non-religious Jews the leniencies are still relevant. Chelkat Binyamin 159:10 (written in America) is lenient in all cases.
  4. Chachmat Adam 130:6 writes that any honest man who could avoid taking interest from non-Jews should do so.
  5. Chelkat Binyamin 159:1 s.v. vhaidna writes that one doesn’t have to be strict for the Chachmat Adam if one is lending to a bank and one only has to interact with them minimally.
  6. Rambam Malveh Vloveh 5:2 explains that they never prohibited it lest one come to learn from their ways since it is normal for a borrower to avoid the lender and not learn from him. Meiri b”m 70b agrees. Chazon Ovadia Shabbat v. 1 p. 7 and Malveh Hashem 5:5 codify this as the halacha.
  7. Shulchan Aruch 159:2
  8. Rama 159:2
  9. Shulchan Aruch and Rama 159:3 forbid lending with ribbit to someone who is a tinok shenishba. Gemara Shabbat 68b clarifies that a child who was captive among non-Jews (tinok shenishba) and didn't know about Shabbat is considered as though he sinned unintentionally. Brit Yehuda 30:12 agree. Rambam Mamrim 3:3 writes that the sons of the karaites who were brought up with the mistakes of their parents aren't considered minim but should be returned in teshuva. (Yet, see the manuscript editions which include another few words that alter the meaning of the Rambam.) Pirush Mishnayot Chullin 1:2 writes that someone who reject tenants of our faith are considered minim. However, someone who was born into a family and background with such thoughts aren't culpable and are similar to a tinok shenishba. Binyan Tzion Chadashot 23 posits that many of the non-religious Jews today are considered tinok shenishba since they're following the ways of their fathers.
    • Chazon Ish YD 1:6 writes that once we try to teach him about the Orthodox ways and he turns it down he is considered to be a mumar. The amount of effort necessary to spend in trying to teach him is subjective and is left up to the judgement of the rabbis of each generation. Additionally, once he is aware of the Orthodox Jews and practices even without trying to teach him he can be considered a mumar. However, that too depends on how aware he was of the Orthodox Jews and to what degree and with what intensity his parents taught his otherwise. This is the basis for the dispute whether Karaites are mumarim.
  10. Igrot Moshe 4:91:6, Chelkat Binyamin 159:22
  11. Shulchan Aruch 159:3. Bet Yosef 159:3 cites the Pirush Mishnayot Chullin 1:2 where the Rambam says that karaites are like tinok shenishba and it is forbidden to lend them with interest. Bet Yosef points out that the Nemukei Yosef 42b quotes the Ri who says that anyone who once recognized Orthodox Jews isn’t a tinok shenishba disagrees with this Rambam. Shulchan Aruch follows the Rambam. However, the Shach 159:6 cites the Maharshal, Maharnach 113, Rash quoted by Mabit 1:38, Rav Betzalel 3 who are strict. Nekudat Hakesef he writes that the halacha on this matter is unresolved. Chelkat Binyamin 159:21 concludes with the Graz who is strict.
  12. Shulchan Aruch Y.D. 168:1
  13. Although Shulchan Aruch 168:3 hold that it is sufficient for the non-Jew to state that you can leave the money in a certain location for the second Jew and it is understood that he is exempt from the loan obligation, Shach 168:7, Taz 168:3, and Gra 168:6 all hold that it is necessary to state so explicitly.
  14. Shulchan Aruch Y.D. 168:3
  15. Shulchan Aruch Y.D. 168:2
  16. Shulchan Aruch Y.D. 168:1
  17. Gemara Bava Metsia 71b, Shulchan Aruch Y.D. 168:6
  18. Rashi Bava Metsia 71b s.v. v'im explains that the conclusion of the Gemara was that there is a concept of agency for two Jews to create a loan between them with interest. This is rabbinically forbidden. This is the opinion of the Rif, Ramban, Rashba, Ran, and Nemukei Yosef all cited by the Bet Yosef 168:6. The Rambam Malveh Vloveh 5:4 however holds it is Biblically forbidden. On the other hand, Rabbenu Tam held that the gemara backed out of that stringency and so it is permitted. Rosh responsa 108:11 ponders how someone could possibly rule like Rabbenu Tam when it seems that it is forbidden and Rabbenu Tam brought no proofs. Either way, there the Rosh rejects following Rabbenu Tam initially. He is aware of the practice of some people to follow Rabbenu Tam but he argues that it is incorrect and the lender could only accept the interest if he is unaware that the non-Jew is borrowing the money for the other Jew.
  19. Shulchan Aruch Y.D. 168:6 completely rejects Rabbenu Tam's opinion. Rama 168:5 and 7 cites Rabbenu Tam however he says that one should only follow that opinion where there is a minhag. Chelkat Binyamin 168:51 writes that we don't follow the Rabbenu Tam since it is a question of Biblical interest.
  20. Rashba teshuva 3:243 writes that it is forbidden to lend your money to him in order that he lend it to another Jew with interest since that is a mere legal fiction and is considered taking interest. Also, there is a concept of shelichut for a non-Jew to be considered a shelichut for purposes of being strict. That is, the rabbis view this transaction as though the non-Jew is an agent of the Jews and it is a loan between two Jews. Shulchan Aruch Y.D. 168:5 rule like the Rashba. The Shach 168:10 points out that the Rama would agree as well. Malveh Hashem 1:5:12 agrees. However, the Netivot Shalom 168:5:5 argues at length that the Rama never accepted this approach of the Rashba who expanded the concept of legal fictions for ribbit. The entire concept of Rabbenu Tam who allowed having a non-Jewish agent to arrange the loan with interest or Rashi's opinion who allowed a Jewish agent to arrange the loan with interest, both of which are cited by the Rama indicate that he was not concerned with the expansions of the Rashba. This is further supported by the fact that the Rama 168:5 implies that the reason for Shulchan Aruch is completely other than the reason of making a legal fiction out of taking interest. Netivot Shalom brings sources that show that there's a fundamental dispute of how far reaching is prohibition of using legal loopholes in interest (haramat ribbit) between the Maharam and Rashba. Netivot Shalom 166:6:13 extends this discussion to that of using a heter iska and the Gra's opinion that it violates haramat ribbit.
  21. Netivot Shalom 168:5:6 explains that the haramat ribbit that the Rashba was discussing was because the real intention of the parties was to create a loan between the two Jews and so it is completely ribbit, which is forbidden even after the fact. However, the Malveh Hashem 1:5:12 writes that this haramat ribit of the Rashba is purely legal fiction that is valid, though it is forbidden to arrange. Therefore, if it was already collected certainly it doesn't need to be returned.
  22. Shulchan Aruch Y.D. 168:7
    • Derisha 168:4 explains that it is absolutely forbidden for the lender to make the borrower pay the interest since it is forbidden for the borrower to pay it, however, it already happened then the lender can keep it.
    • Shach 168:17 argues that it is permitted for the lender to make the borrower pay the interest since it was done without his knowledge and in such a case it isn't really forbidden for the borrower with respect to the lender. Chelkat Binyamin 168:55 and 57 rules like the Shach and explains that once the lender wasn't aware of the appointment of the non-Jew by the borrower it isn't forbidden for the borrower to pay the interest. The only aspect that was forbidden is the arrangement of the loan.
    • Netivot Shalom 168:7:6 writes that the Teshuvat Ri doesn't imply like the Derisha at all. Netivot Shalom 168:7:6 reads the Bet Yosef in accordance with the Derisha. However, the Chelkat Binyamin (168 Tziyunim 136) argues that the Bet Yosef held like the Shach.
  23. Horah Brurah 168:31. There he mentions the idea that the Bet Yosef suggests which is if the lender doesn't know from witnesses that the borrower appointed the non-Jew to be his agent and the borrower himself since he didn't appoint the non-Jew then the lender could collect the interest. Horah Brurah concludes that one may only rely upon this after the fact.
  24. Mordechai b"m 337, Shulchan Aruch Y.D. 168:8. Shach 168:19 and Taz 168:9 argue that just like the lender can collect the interest the borrower can pay it. However, it appears from the Bet Yosef that only the lender can collect it but it is forbidden for the lender to collect it. Horah Brurah 168:34 follows the Shach and Taz that if the non-Jew didn't follow the orders of the borrower it is then permitted for both the lender and borrower to exchange the interest at the end.
  25. Ran b"m 71b s.v. mahu, Nemukei Yosef 42a, Hagaot Ashri 5:42, Rosh responsa 108:5, Raavan 103, and Smak 260 all cited by Bet Yosef 168:13. Baal Hatrumot 46:4:10 citing Ramban b"m 71b s.v. vgoy explains that even though the Jewish agent can't halachically become the agent of the non-Jew since there's no agency for non-Jews, the Jewish agent can be the agent of the lender.
  26. Shulchan Aruch 168:13
  27. Shulchan Aruch Y.D. 168:16 based on the Rosh in disagreement with the Ramah who allowed taking even responsibility for unexpected events.
  28. Shach 168:36 citing Bach
  29. Shulchan Aruch Y.D. 168:14
  30. Rama 168:14, Shach 168:47, Taz 168:20, Bach 168:15, Chelkat Binyamin 168:148. According to the Taz this is even the opinion of Shulchan Aruch, but according to the Shach and Bach this is only the opinion of the Rama and Shulchan Aruch would disagree.
  31. Rama 168:14, Shach 168:47, Taz 168:20, Bach 168:15
  32. Shulchan Aruch Y.D. 168:15, Rosh responsa 108:6
  33. Levush 168:15, Shach 168:50, Chelkat Binyamin 168:156. The explanation of the Levush is that essentially since the agent isn't a borrower he can tell the lender to do or not do something and that poses no issue. The lender should be cautious of the damages that can occur to the agent, however, if the agent arranged with the non-Jew and not the lender, then the lender doesn't have to be concerned. It is the responsibility of the agent. If the agent was originated commissioned by the Jewish lender then it is a concern for the lender that he doesn't cause a damage to the agent. The Taz 168:20 and Bet Meir disagree with the Levush. They hold that the lender doesn't have to listen to the agent in any event. They explain that the source for this halacha is the Rosh and he held that the borrower shouldn't take any responsibility for the collateral and yet he writes that he doesn't need to listen to the agent. Shach in Nekudat Hakesef 168:14 answers that these are two separate statements of the Rosh. The Bet Meir doesn't understand the Shach since the Rosh either way would discuss a permissible case according to his opinion.
  34. Ri cited by Rosh b"m 5:55, Rosh responsa 108:11, Rama 168:8 seems to support this approach. Darkei Moshe 168:4 quotes the Mordechai and Hagahot Ashri who held that it is permitted even initially. Darkei Moshe 168:9 cites the Kol Bo 84 and Hagahot Maimoniyot Malveh 5:3 who says that the minhag was like the Ri
  35. Ramban b"m 71b s.v. vbar cited by Tur 168:9, Rashba 7:321, Nemukei Yosef 42a, Talmidei Harashba, and Baal Hatrumot 46:4:10 cited by Bet Yosef 168:9
  36. Ri, Rosh, Shulchan Aruch 168:9. Chelkat Binyamin 168:63 explains that essentially there's two schools of thought regarding a loan with a security deposit from one Jew to another Jew with a non-Jew in between. The Gra and Levush understand that this depends on whether one may set up a non-Jew agent between two Jews who are transacting with interest. The Shach, Taz 168:14, and Chavot Daat 168:12, on the other hand, think that the security deposit poses its own problem in that it functionally creates a lien of the Jewish lender upon the original borrower Jew. This could be solved if the non-Jew acquired the deposit from the non-Jew in an absolute fashion.
  37. Tur 189:9, Shulchan Aruch 168:9. Bet Yosef 168:9 s.v. yisrael shnatan notes that the Mordechai 338 held within the opinion of Rabbenu Tam that it doesn't matter whether the deposit was clearly Jewish or not.
  38. Rosh responsa 108:8, Rama 168:9
  39. Mordechai 337 writes that a Jew can use a non-Jew's security deposit to borrow from a Jew with interest if he is instructed so by the non-Jew. The Mordechai seems to apply this even to the case where the Jew didn't have the non-Jew's deposit but instead wanted to gift him a deposit of his own for its value. The Bet Yosef is troubled by this leniency since there's no mechanism by which the non-Jew is actually acquiring the deposit. Taz 168:14 gives a nuanced explanation that it was sold to the second Jew with a condition that the non-Jew could buy it back. Bach 168:13 and Nekudat Hakesef 168:11 explain that once a owner admits to the fact someone else owns his item it halachically belongs to that person (kinyan odita) and that is sufficient to remove the prohibition of ribbit. Either way, the Rama 169:11 concludes that we assume that it is impossible to gift a deposit to a non-Jew without him making a physical kinyan such as meshicha.
  40. Rashba responsa 1:764 cited by Darkei Moshe 168:6
  41. Rosh responsa 108:25, Shulchan Aruch 168:12
  42. Rosh responsa 108:25, Shulchan Aruch 168:12
  43. Smak 260, Kol Bo 84, Mordechai 338 citing Riva, Baal Hatrumot 7:46:10 all quoted by the Bet Yosef 168:10
  44. Rosh cited by Tur 168:10
  45. Bet Yosef 168:10 based on the Baal Hatrumot
  46. Maharik 16 cited by Bet Yosef 168:10
  47. Shulchan Aruch Y.D. 168:18
  48. Rama 168:18 following the Mordechai and Rosh teshuva
  49. Tur 168:18
  50. Levush, Shach, Chachmat Adam against Taz
  51. Shach (Nekudat Hakesef on Taz 168:28) and Levush
  52. Although the Rama 168:18 is lenient, both the Shach 168:57 and Taz 168:27 disagree.
  53. The Taz 168:24 in disagreeing with the Levush forbids this. Shach in Nekudat Hakesef and Chachmat Adam cited by Chelkat Binyamin 168:151 are lenient. Netivot Shalom 168:18:14:1 questions the Shach from Shulchan Aruch 166:3 and answers it. Chavot Daat 168:34 forbids because of Shulchan Aruch 160:23 and 172:4. Chelkat Binyamin thinks that even the Shach accepts part of the argument of the Chavot Daat and would forbid anytime that sale of the debt is at a lower price because of the fact that he is also receiving an interest free loan.
  54. Shulchan Aruch Y.D. 168:1
  55. Shulchan Aruch Y.D. 168:4