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Before we continue in הלכות רבית we need to have a bit of an understanding of what הלוואה is all about.
1) to whom to lend. (Trustworthiness. Who gets first.)
2)how to lend.( עדים. שטר)
3)how (not) to pressure a לוה.
4) borrowers obligation to pay.
5) lending a non Jew. And other concepts.
Most of these הלכות are in שו״ע . חו״מ. סימן צז. And in Sefer אהבת חסד from the חפץ חיים. Well try to make a summary of the הלכות that are most common.
There's a מצוה to lend a yid in need money. It's a מצוה גמור like eating מצה on פסח and even more., because there are a few לאוין. השמר... פן. And a few עשין. העבט תעביטנו. אם כסף תלוה
There's even a שאלה why there's no ברכה on this מצוה.
It's a higher form of צדקה than giving a donation. See יור״ד סימן רמט ס״ו
because there's no embarrassment to the receiver.
TO WHAT EXTENT;
Even if you have to take your money out of the bank to lend someone you must do it.
(אגרות משה יור״ד.ח״ג). Unless ones פרנסה is from the interest of that money, or he'll incur a loss of money or lose an opportunity to make a large profit. (Whats called large depends on every individual situation). For example, the owner of a grocery dosnt have to give merchandise on credit because that his " business" .( Besides, that may not be considered a הלוואה anyway ,only חסד, because the customer is buying, not borrowing.) In these cases, one is פטור. We learn from מצות השבת אבידה that one dosn׳t have to lose money for מצוות בין אדם לחבירו. Nevertheless even they have to מקיים the מצוה of הלוואה somehow.
If they would be מוסר נפש״" and lend even under those circumstances it's still a מצוה and even a greater one, due to it's hardship. One of the חפץ חיים's קולות are that one is allowed to give more than חומש נכסיו as a loan. The פני יהושוע on the other hand holds one is מחויב to take a loss of profit to lend a yid. ( ראיה מנבילה. ואכמ״ל).
One thing everyone agrees on is that the best investment one can do with his money is to deposit it in a g'mach. Your money will constantly yield "profits of zchusim" , even while you sleep. The chofetz chaim suggests putting 1/3 of מעשר money in a gmach. ( There's no ראיה from there that's it's ok to use מעשר for other מצוות, because הלוואה is not just a מצוה ,but an actual form of צדקה.)
There's no חיוב to borrow to be able to lend it further.
WHO RECIEVES FIRST. ;
1)Relatives;עניים. (order of קדימה;
Father,..Children... brothers then other relatives. )
2) עניי עירך;
כהן ואח״כ לוי...ישראל ...ואח״כ ממזר. אא״כ הוא ת״ח הוא קודם אפילו לכהן. אשת חכם כחכם.
Within תלמידי חכמים, the bigger ת״ח gets first. Unless he's רבו מובהק . Hes first. Even before ones father.
3) עניי ירושלים
4)עניי שאר ארץ ישראל
5)Even if a rich person is in need of a loan, theres a מצוה to lend him but an עני comes first. This is מרומז in the פסוק ״את העני עמך״ and in the name of the
סימן צז.; "להלוות לעני״.
(The אריז״ל said the headings of all the סימנים in שו״ע were written with סייעתא דשמייא).
If the עשיר is facing a big loss he has דין קדימה like an עני.
If the person has no way to pay back the loan there is no מצוה to lend him.as the חח explains the מצוה is to "lend".which implies you'll get it back. The דעת זקנים says that's why the תורה wrote אם כסף ...implying ,sometimes it's optional like to someone who dosnt pay back. It's actually recommended not to lend him because the מלוה will be עובר on לא תהיה לו כנושה.The borrower should provide a check, ערב , משכון , or some other kind of guarantee. This dosnt minimize the מצוה.
Now, this dosnt mean that no risk should be taken. רבינו יונה writes if someone dosnt lend from fear of שמיטת החוב on שמיטה he's called a בליעל. One has to take a risk like in any investment. Even more so here because it's an investment in עוה״ב. In fact being that the dividends are paid in עוה״ב there is no risk!
When you decide you cannot trust the לוה and will not lend him, your still not allowed to lie and say you don't have, says the ספר חסידים. What you can say is "I don't have money to lend YOU" ( try not to stress the "you" part. )
HOW TO LEND
As we said above, the מעלה of lending rather than giving is that there's no בושה to the receiver. Therefore it should be done with the utmost respect. בסבר פנים יפות. Meaning not only with a smile , but try to give him the feeling that your happy about lending him. ( ex. "I anyway didn't have what to do with the money now". )
It's אסור to lend without a שטר or עדים. Even to a תלמיד חכם. Actually כל שכן to a תלמיד חכם. Because hes טרוד בגירסיה.Like the story with the רשש illustrates. One reason is לפני עור לא תתן מכשול. He might forget to pay. Another reason, גורם קללה לעצמו, people will curse him when they think he's claiming money unjustly.
So, what's the היתר these days to lend friends without שטר או עדים?
The תומים explains, the need for עדים is not that the לוה will lie, because if so , he can still lie, the din is אין צריך לפרוע בעדים. He will always be believed that he paid.
Rather the concern is that he'll forget.
R Moshe shternbuch says if you'll be מוחל a person who forgets to pay you don't need שטר או עדים. You won't be doing לפני עור and you definatly won't be cursed. The ערוך השלחן writes that these days people are מוחל. It's very כדאי to be מוחל because, as the חפץ חיים says, if the לוה has to come back as a גלגול to pay you back , you have to come back too to receive payment!
LENDING A GOY;
if you do lend him, you must charge רבית. If not ,it's אסור because of לא תחנם-don't give them presents. תוס׳ ב״מ ע: ד״ה תשיך וע״ע שו״ע הרב).
The גמ' ב״מ עא׳ says one shouldnt lend them because it can lead to learning his negative behaviors, but תוס׳ says בזמן הזה,it's common to do business with them so it's ok.
A לוה has a מצוה to pay on time. הן צדק; Your word should be true.
If he dosnt pay he's
עובר 2 לאוין ;
( if he borrowed with the intent not to pay. )
He's also called לוה רשע ולא ישלם.
It's advisable to always be מוחל small loans , because people tend to forget to pay them. If you wont remind him and don't want to be מוחל it's better not to lend it.
Although he's obligated to continue at his present job, until he pays up the loan, we can't force him to go out and get a new job, because the פסוק says ונמכר בגנבתו.were
Therefore one can't even stipulate during the loan " if you can't pay back ,you'll have to work for me".
(There's a מחלוקת in the פת״ש if the לוה on his own has to go out and find a job. )
So too, he's not obligated to find another גמ״ח to borrow from, to pay this one back. But this option may be stipulated during the loan "if you can't pay back you'll have to borrow." There's no דיוק from that פסוק against borrowing, only working.
The Sefer משפטי התורה says these days in אר״י there's a self understood אומדנא that the לוה will be borrowing from another גמ״ח to pay this one back Therfore the מלוה can force him to do so. It's like they made a תנאי to this effect during the loan. It's a big חידוש, but we can rely on it because usually the לוה has some "extras" he can sell.
HOW ( NOT) TO PRESSURE;
There's an איסור for the borrower to pressure the lender, even passively. For example, to walk pass him as a hint for him to pay. לא תהיה לו כנשה. -Do not act like a creditor.
This איסור applies not only to a private lender, but also to a בעל גמ״ח. Even though it's not his own money.
So what is a מלוה supposed to do?How does he get his money back?How can he live in the same area as the לוה?
Here are a few practical answers;
1)It's only אסור if you know he dosnt have what to pay with.
לשון שו״ע;אסור לנגוש לו כשיודע שאין לו.
If you have a ספק it's ok. It's also very מסתבר , because if the תורה commanded us to lend, there must be a way to retrieve the money too. The איסור is just not to give him "unnecessary צער.", when you know for sure he dosnt have money. But when your in doubt, and request payment it is by far not "unecessary.". ( This is not טעמא דקרא ,just the גדר if the איסור. )
2) I once asked ר׳ אלישב שליטא if I have to change my seat in shul to avoid sitting next to an overdo לוה? He said if the לוה has more than his basic needs he has to sell them and pay.
Basic needs -כדי סידור״"-is considered ;
food for 30 days, for himself not even for his wife.
Clothes for himself, for one year. A bed.
Basic working tools.
Even his טלית&תפילין would be ok to take if not for the fact that's included in "clothes".
Being that it's highly improbable that the לוה dosn't have anything more than that you may ask him to pay.
3) R' S. Z. Aurbach gave another היתר. The לוה has to swear in בית דין that he dosnt have money, in order for the מלוה to be עובר.
4) one is allowed to take the לוה to בית דין to work out a plan how to pay.
5) the ערוך השלחן is מתיר by a לוה who dosnt get embarrassed. (He uses טעמא דקרא.) Although it's hard to rely on this היתר to actualy claim the money from him, it's ok at least to pass by him
6) If they are neighbors, we may think that that's worse, because they're constantly passing eachother. But there's a סברה that by now,the לוה created a " defense mechanism", and is "immune" to feeling threatened by this מלוה.
7) The איסור is to approach him. להראות לו. I cant actively give him צער. That dosnt mean I have to hide. If he sees me on his own , that's צער ממילא. ״". : passive anguish ,and is not אסור to cause.
8) you can claim you want small payments, which the לוה can handle.
9) you may "remind" him of his חוב. But preface, that your not pressuring him.
Another issue that may come up is causing stress to the לוה by claiming the loan. How much is ok? Ironically,I'm actually sitting now in the waiting room of bais din about to claim $5000 from a לוה. It's the third time were here for this loan. The first time , he pulled out a letter from his doctor that he's not in a position to handle stress. Is it מותר for me to be doing this now? Of course,if it's a question of פקוח נפש it's אסור but if he'll only have צער or even become a חולה שאין בו סכנה, the הלכה is one may claim. Even though the Rema writes that,we don't make a pregnant woman swear, because of "סכנה סגולי" to the embryo, or according to the חתם סופר,stress to the mother,we can differentiate between the cases. There, the שבועה is only proof of her claim, but in our case, it's the debt itself, and theres no חיוב to forfeit that.
Before someone actually puts this into practice, we must mention a story about a מלוה who got a psak from a famous rov that he may claim a certain debt. He was תובע ,and the לוה had so much stress from it , he had a heart attack and died,רחמנא ליצלן. The rov understandably felt terrible.R Chaim kanievsky said about this ,אין שום חשש כלל״".
(Ok. Just finished our דיון.
Based on all the above, I agreed , in my case here, for easy payments of 50$/ monthly. How long will it take to be paid fully?? Do the math.)
FORFEITING THE LOAN
If the מלוה is מוחל the loan, the loan is canceled, with no need for a קנין. Theres a מחלוקת if מחילה בלב works. But מחילה בטעות בלב, he thought " ah, I'll never see the money from this guy",dosnt work, and if he ends up paying , the מלוה may take it. מחילה בטעות בפה, may work, because it's a נדר לדבר מצוה. Also it may not have been such a טעות, as the לוה could have actually been in a מצב that he couldn't pay.
Another case, the מלוה was מוחל 50% of the loan if he gets the other half now. When the לוה pays the half , the מחילה is חל. It's not מחילה בטעות , because he based the מחילה on a condition which was met. Unlike above,that the מחילה was based on a false assumption.
TAKING THE LOAN OFF מעשר.
Although one can deduct from מעשר,money coming to him from an עני or מוסד ,if it's owed to him for a loan it's a מחלוקת. R Moshe Feinstein is מתיר. The ש״ך Is מתיר only if that was his intention during the loan The נודע ביהודה stipulates that the מלוה must make sure that the עני is willing to take מעשר. The ערוך השלחן disagrees and holds that the loan cannot be deducted from מעשר. His logic is if so , all מעשר money will be used for this purpose and no עני will get צדקה.
It must be made clear that the צד to be מתיר is only in a case that the מלוה has a right to collect the חוב from him. The לוה has something "extra"of value that beis din can make him sell. But if he dosn't, and the מלוה can't collect because of לא תהיה לו כנשה , or its a situation of פקוח נפש as above, he halachicaly does not owe the money now. Therefore מעשר too ,dosnt have to "pay" and it cannot be deducted from מעשר.
According to the תורה there is no such concept and it's גזל גמור.
However,If one owes money to a non Jew it's מותר, because in their laws it's accepted. It's considered like הפקעת הלוואתו - not paying a loan to him- which is מותר provided there's no חילול ה׳.
R Moshe Feinstien was asked by his son R Dovid a מלוה can deduct from מעשר ,his potential loss of interest, or the penalty he had to pay to take the money out of the bank? See the תשובה in
אגרות משה יור״ד. ח״ג. סימן צג l
We'll mention a few points that come out of that תשובה
•If the לוה is an עני , the penalty may be deducted from מעשר. As well as the potential interest loss. Even though מעשר is paying him רבית, because רבית is only אסור from borrower to the lender. Not from a third party.
If the loss is a small amount,one has to give it up for a מצוה and cannot take it off מעשר.
•If the לוה is an עשיר one cannot deduct loss from מעשר, but he may deduct it from חומש if he's accustomed to giving חומש. It's no worse than any other הידור מצוה which can come from חומש.
•Escrow accounts work differently. The bank puts the interest in a seperate account until the investment matures. Then you recieve it. At the time you take it out to lend, there is no interest yet, therefore there's no ״loss״ that can be taken off מעשר.
•In all cases the מלוה cannot charge the לוה the amount of potential interest loss. Either lend it for free or ,if there's a large loss , don't lend it.
• A son may invest in his fathers bank account to earn a higher interest rate. It's not considered that he lent his father the money, because the father didn't guarantee the קרן at all, in event that the bank goes bankrupt, for example. It's a loan directly to the bank, and he may collect interest.
• Is the מלוה allowed to tell the לוה "I'll lend you more if you pay what you owe me now"?The הר צבי is מתיר, because the מלוה is not getting anything more than what's coming to him. Even though he wasnt going to get paid without extending the second loan.