Latest / SHULCHAN ARUCH YOMI: Own the Halacha in 25 minutes a day! / Yoreh De’ah 177:1-2. Interest: Business Dealings, Investor and Managing Partner, Heter Iska; Lending Borrowing Online

Transcript

Yoreh De’ah 177:1-2. Interest: Business Dealings, Investor and Managing Partner, Heter Iska; Lending Borrowing Online · SHULCHAN ARUCH YOMI: Own the Halacha in 25 minutes a day!

• 0:00
  Let's start, OK, we are starting Simon Kuf Einzine and Hilcus
• 0:06
  Ribis, Shalola Kabul son Barzel, Miseral, the Kamadine Masal
• 0:11
  Matanasuri Mishum Ribis. So this Simon, before I
• 0:16
  continue, I'm just going to make a quick I just we sent out in
• 0:21
  the group this totally not its proper place, but I don't think
• 0:25
  it was mentioned. A very interesting question
• 0:27
  about Tilchas Ribis. If you want to take a loan off
• 0:32
  of a stranger, you don't know who you're taking the loan from.
• 0:35
  You do it off the Internet. You have a broker and online
• 0:38
  service and so we know if but getting ribis from from a non
• 0:43
  Jew Lamaisa, we say nowadays is mutter right.
• 0:47
  You know the guitar as well. You're allowed to get Ribis from
• 0:50
  a non Jew or pay a Ribis. But what about if it's a Jew?
• 0:55
  So when you do it online do you have to worry about it becoming
• 0:59
  from a Jew or a non Jew? So normally what do we say?
• 1:02
  Holchin, Akhar, Haru and most people online and lending out
• 1:07
  money are not going to be Jewish right on this planet or in
• 1:11
  America, wherever you are. And so therefore it should be
• 1:14
  mutter. Now one day that might change, I
• 1:18
  don't know. But that's Damancius.
• 1:21
  However, yeah, it could be mostly Jewish.
• 1:30
  OK, so you'll show me after. So anyways, when it comes to are
• 1:35
  you allowed to do that? So there is a discussion in a
• 1:38
  post scheme because there's a principle.
• 1:41
  We also learned earlier in your idea that if something's, I
• 1:45
  mean, it's from the Gemara, it's a Heddish.
• 1:49
  But if you have a Suffolk with two, with something, that's
• 1:53
  kavua. It has a stationary place yet
• 1:57
  let's say, do you consider the guy's stationary office, the
• 2:00
  stationary home? That's where he lives.
• 2:02
  That's where the loan is coming from.
• 2:03
  Do you call that kavua? And anytime you say it's kavua,
• 2:08
  so then it's a mehsa. Al Mehsa is the that you have.
• 2:15
  Anytime you have a Suffolk you have to say it's 5050, you don't
• 2:18
  go after the normal Rove and therefore at least if it's Ribes
• 2:22
  de Araisa it would be us if you apply that.
• 2:26
  So I did see a couple of posts games say it's a problem.
• 2:29
  They did not really explain why I saw that in a safer, I think
• 2:33
  it was Spirkas Aria I forget and from Rabbi Ari Adler.
• 2:39
  However, I did see and I sent it out from an article from Rabbi
• 2:46
  Reisman who wrote the the book on laws of Rebus and it was a
• 2:50
  contras from Yashurim and he quotes also from David Feinstein
• 2:56
  where they say it's mutter because we know the main point
• 3:02
  is it has to be nikar. That's what we hold.
• 3:05
  This is from before, but basically any time for something
• 3:10
  to be called kavua, the halacha is the post can say it's getting
• 3:14
  discussion. It needs to be nikar.
• 3:16
  You have to see, you have to know that it's kavua and it has
• 3:21
  to be recognizable where it's coming from.
• 3:24
  When you're on the Internet, you have no idea where it's coming
• 3:27
  from. Besides, a separate issue is the
• 3:29
  loan can come from the guy. He doesn't know about it at a
• 3:33
  time when he doesn't know about it.
• 3:35
  He's in the car, he's on the plane, he's travelling.
• 3:38
  You don't even know if it's his office, it's his house.
• 3:42
  In other words, it's not really called kavua and therefore there
• 3:47
  is one is permitted to do so. But however, echo lavarre very
• 3:54
  easily and it's so it's not always echo lavarre so easily.
• 4:02
  But that is a that is a question.
• 4:04
  How easy, if it's easy to find out, that could be a problem.
• 4:09
  OK, OK, anyways, that's side issue.
• 4:14
  Now this Simon that we're doing, Kuf EIN zein, we were just
• 4:19
  discussing maybe perhaps the longest Simon in Chaufnarik.
• 4:24
  We don't know. It's 40 Sieffim and they're a
• 4:26
  long 40 Sieffim. So anyways, I think we're going
• 4:31
  to save it for the next Sieff, but this is the Sieff of making
• 4:37
  investments, business deals. So it's very important.
• 4:43
  And from this Simon, comes the whole concept of heter iska,
• 4:49
  right? We're all familiar.
• 4:50
  If you want to make a loan, straight loan from Jew to Jew
• 4:53
  and you want to guarantee your money and you want to make
• 4:56
  interest out of it. So normally that would be,
• 4:59
  that's exactly what the Torah says is 100% ESRD reisa.
• 5:03
  So how does the heter iska magically make it mutter and
• 5:07
  perhaps mutter le khatkhila? How can that be?
• 5:12
  By the way, when you point out the whole concept of the Torah
• 5:15
  and not taking ribis is because we're assuming you're helping,
• 5:19
  you're helping a friend, you're helping a family member who's
• 5:23
  having trouble. And so it's cruel and the Torah
• 5:26
  doesn't want you to take interest.
• 5:28
  To make his life even worse. He needs help.
• 5:30
  He needs sadaqa. He needs or or alone is a is a,
• 5:34
  is a, is a nice form of sadaqa where the guy doesn't even feel
• 5:38
  embarrassed and he knows what he believes he's going to try and
• 5:40
  pay you back. So he feels good.
• 5:42
  So that's the spirit of the law. So, but when it comes to a
• 5:46
  contract that this is a business investment, the guy doesn't need
• 5:49
  to do, you're helping him out and you're trying to make money
• 5:53
  both of you together and the guy doesn't need your millions of
• 5:56
  dollars or whatever he's borrowing or whatever the loan
• 6:00
  is. And it's it's really supposed to
• 6:03
  be a win win situation. And it's really even according
• 6:06
  to the spirit of the law, it's not meant to be a problem
• 6:10
  because when the tar doesn't want to take interest, it's
• 6:13
  because it's really supposed to be a form of sedaka here.
• 6:15
  It's a form of everyone's trying to to help each other make a
• 6:18
  make a living, to make more profit.
• 6:21
  And therefore it's even kosher according to the spirit of the
• 6:25
  law. But we're going to see soon how
• 6:27
  it works. So let's start with Seif Aleph.
• 6:31
  It's the beginning of the whole concept.
• 6:34
  And the first two seifem are extremely important.
• 6:37
  OK, interesting. Just to note the whole concept
• 6:41
  of hetter iska is not mentioned anywhere in Shas.
• 6:45
  The whole concept of having this hetter iska.
• 6:47
  Now there is something called iska we'll explain shortly.
• 6:50
  But the whole concept of having this contract of a hetter iska,
• 6:54
  making it mutter to to just to lend out money with a general
• 6:59
  fixed percent interest that you're expecting to make.
• 7:02
  So this whole thing doesn't appear anywhere in the Chauhan
• 7:05
  Arhar, the Gemara, because it didn't exist, didn't exist.
• 7:08
  Where is the first form? So it didn't happen overnight.
• 7:13
  I did see in one source saying it started with the Truma
• 7:17
  Sebastian. Truma Sebastian definitely did
• 7:19
  it definitely added a clause in in the Torah literature that
• 7:25
  made that's used in a heteriska. Some attributed to it first
• 7:31
  started, at least the way we have it is from the smut and the
• 7:35
  lavouche, which is basically the the generation right after the
• 7:39
  Shulka Narak was written. And notice all of these sources
• 7:44
  we just mentioned are all in Europe.
• 7:46
  I guess it was more common and necessary in Europe to make the
• 7:49
  money out of lending than in the Middle East.
• 7:53
  But anyway, that's just a little bit of background.
• 7:57
  We're not going to go into great detail of see line of the line
• 8:00
  of dissecting A heteriska, but we're going to understand the
• 8:03
  main principles. Again, it's not in the
• 8:05
  Chalfinara and fine. So let's reach the if all of in
• 8:09
  Mccubbling's son Barzel Miesel, the Heinrich and Mccubbling
• 8:16
  Emmanuel Meyat's son Meyat's son Viejo Gizot Viejo Viejo le
• 8:22
  Emsella Shalish Olivia Chanaochen.
• 8:27
  OK, let's let's stop, let's translate now.
• 8:31
  The person you have the noting and the macabre you have the you
• 8:36
  can call it the investing partner or the managing partner.
• 8:41
  Perhaps that's more with with the money, with the ESCAR.
• 8:44
  We're going to get to invest. But basically you have a person
• 8:46
  who is giving sun Barzel is giving items such as sheep for
• 8:54
  the for the to somebody else, the macabre who receives it to
• 9:00
  make a business to make business out of it.
• 9:02
  So he's going to receive this son Barzel just an expression.
• 9:08
  It's literal and an expression for receiving an item that
• 9:12
  you're going to make money profit out of this item and it
• 9:16
  could be land in this case, it's not money, but it's you're
• 9:21
  you're going to make a profit out of the items.
• 9:24
  So here from sheep, you can make profit out of its wool.
• 9:30
  It grows from it. It's, it's, it's, it's children,
• 9:33
  it's right to the Vladod, the offspring, we are Khalab or the
• 9:39
  milk. And so how do you make the
• 9:41
  ingrain arrangement? So it depends, depends how you
• 9:44
  make the arrangement, but it could be basically you're
• 9:46
  sharing the profits or EMSA 5050 or 1/3 to 1 and 2/3 to the other
• 9:54
  or 12:45 and 3/4 to the other. However, the arrangement is made
• 9:59
  right and this is how much is made.
• 10:01
  You make this agreement for like one or two years.
• 10:04
  Komo shahitudu banayam, whatever they agree on, it doesn't really
• 10:07
  matter, but it's a concept of you're giving him something
• 10:12
  they're going to make a profit out of together and share the
• 10:14
  profit the EM made to Hatsun. But then what happens if
• 10:19
  something happens and your entire investment, whatever you
• 10:22
  gave to him, goes sour and disappears?
• 10:25
  Such as if it's it's if it's sheep and they die.
• 10:29
  Hare ha Macabo Mishalim demean. So the one who took the macabo,
• 10:34
  who took the property, who borrowed it.
• 10:37
  And now if he's going to take full responsibility, all the
• 10:42
  akarias is on him, something happens, he's going to pay it
• 10:45
  all back. Hare Z Asur.
• 10:48
  This is Asur Shahray Bal, its son Karova Revva Virafolk
• 10:54
  Lehaset. And so there is a bit of a
• 10:57
  discussion. I'm not going to get too much
• 10:58
  into it for this really for the whole Simon, what's considered
• 11:03
  ribisutsa and what's considered ribis avak ribis, ribis
• 11:07
  Terabanan. So we'll leave it a little bit
• 11:09
  up in the air. It really depends on the case
• 11:12
  and how you put and on and on the posit and you know how they
• 11:16
  learn. But again, we generally learnt
• 11:20
  ribis. This is also very important.
• 11:23
  Ribis Kitsuza is generally when all the all the responsibility
• 11:29
  is on the borrower. So the investor who gives the
• 11:33
  item has no risk that that's a regular loan.
• 11:36
  Think of a regular loan for ribis kitsuza.
• 11:39
  You're lending the money and you're guaranteed the money
• 11:42
  back. Profits or a percentage, you're
• 11:45
  guaranteed it back and they agree it on how much.
• 11:49
  That's ribos kutsa. So even if the whole item
• 11:53
  disappears, dies, gets stolen, something happens, the borrower
• 11:58
  is going to pay. He's guaranteeing from his own
• 12:00
  pockets, from his own separate bank account, from somewhere
• 12:02
  else, and you're going to pay it back.
• 12:04
  That's the classic case of ribos kutsa.
• 12:06
  Everyone agrees that's Dareisa. If you only have to can only pay
• 12:12
  from this item, like from this son Barzo that were Art's case.
• 12:18
  And the only way you're going to pay is if if there is a profit.
• 12:23
  So that's the Ramban and others point out that's going to be
• 12:26
  since you're only getting paid from this item and it's not 100%
• 12:30
  guaranteed from the guy's the borrower's pocket.
• 12:33
  That already turns it into not Ribis Sousa.
• 12:36
  That's already Ribis de Rabana because it's coming from it.
• 12:40
  Others point out it depends if it's considered a regular halva
• 12:43
  or not. Is it similar enough to be a
• 12:46
  regular halva? But that's OK.
• 12:48
  But they're saying the same thing or not.
• 12:52
  That's again an old, old discussion.
• 12:53
  OK, so let's go on. So here with its own Barzel.
• 12:59
  If the expression of almost for sure the the lender is going to
• 13:05
  is going to make a profit and he has like no chance of losing
• 13:09
  money. So then that's what we said is
• 13:11
  usser and it's either is Ribiskutsa or it's close to
• 13:17
  Ribiskutsa. Again, we're going to leave that
• 13:19
  out. But bottom line, it looks like
• 13:21
  Ribis, smells like Ribis and it's at least Ribis or Abana.
• 13:30
  So if it's a low chance, it might make it Darabana.
• 13:32
  But anyways, this case is certainly going to be usser
• 13:35
  either Derais or Darabana Lafiqa in Kibel Allahabad hatsum.
• 13:41
  However, if the BA al hatsum, the owner who's lends out the
• 13:46
  investment, Shahim Hukuru or Uzal or Nitrifu, he says I'm
• 13:51
  giving it to you, you're the managing partner, make money out
• 13:54
  of it and we're going to share the profits.
• 13:56
  But if the at the end of the deal year 2 years, whatever the
• 14:01
  deal was, then it goes the zone go up in value or go down down
• 14:06
  in value or they die or something happens, it gets
• 14:10
  eaten. Whatever it is, I raise the
• 14:13
  Bershutto. This belongs to the owner and
• 14:18
  the owner is going to incur the loss or the gain.
• 14:22
  And in that case, you're basically just lending out the
• 14:25
  item, renting out the item, however you want to look at it.
• 14:28
  But it's not a loan. A loan is when you're giving
• 14:31
  something over and the borrower is going to make money out of it
• 14:35
  and is guaranteeing you to give you back the same item or
• 14:39
  something of the same value. And that's what's called that's
• 14:42
  when it's going to be usser. But if the the Ahrias, the
• 14:45
  responsibility of what happens to the object belongs to the
• 14:49
  owner, then it's going to be a mutter the thing, right.
• 14:56
  So there's a Mahlokis rishikhronium.
• 14:58
  Does it have to be certainly rishonium?
• 15:01
  Yeah, if you have to accept all of it.
• 15:04
  So you pointed out the grasses, it has to be all of it.
• 15:06
  But that's definitely a Mahlokis if you have to accept all or
• 15:10
  partial of the responsibility. And again that goes into the
• 15:14
  rice and the abundant factors, OK, beyond the scope of Russia,
• 15:19
  the thing called coyote and any similar arrangement or any kind
• 15:27
  of merchandise. It depends again if there is
• 15:32
  responsibility shared or not Haggah.
• 15:40
  Now the Rama points out the only time it can be a problem of, of
• 15:45
  of a loan if or to be a problem of ribis, because it looks like
• 15:49
  a loan is if the recipient is making a profit because he's
• 15:53
  doing it for himself. Any time of a borrower, right,
• 15:58
  who borrows money and is paying ribis, Why is he paying ribis?
• 16:02
  Because the borrower is making a profit out of it.
• 16:04
  He's making a business deal out of it or his living expenses.
• 16:08
  But the point is he's benefiting and he is, he's using the money
• 16:13
  and he's benefiting and then he's going to.
• 16:15
  That's why he's willing to pay interest at a later date.
• 16:20
  But if he's not making any profit, so then the masha macabo
• 16:25
  from what he's borrowing Incan halva kla.
• 16:29
  This is not called a halva kla, certainly not for the purposes
• 16:33
  of ribis. And it's going to be a mutter.
• 16:36
  As the Shah points out, he's just becoming a Shalia.
• 16:40
  In essence, he's just working for the for the owner, whether
• 16:45
  he's making money out or whether he's doing it for free or not.
• 16:47
  A separate issue, but he's not he's not benefiting from it.
• 16:51
  He's not he's not called Alva. He's he's doing it, he's getting
• 16:59
  some he's obviously he's getting some kind of benefit or he's
• 17:01
  doing it as a favor. I'm I'm not sure what the case
• 17:03
  is exactly, but any time he's not again, it won't be so
• 17:07
  common, but anytime you're not benefiting then monetarily out
• 17:12
  of it. So then it's not a problem.
• 17:16
  But I feel well, he's if he's not benefiting at all, then for
• 17:19
  sure it's not a problem. OK, we'll have to analyze case
• 17:22
  by case. But if you're a Kolla, Kolla
• 17:24
  Shari Dahl mutter Lachau Mohino Makabel Allah Leo Tkushawel,
• 17:29
  even if he accepts upon himself responsibility right to so that
• 17:33
  the, the the one who's giving it doesn't have to worry about it,
• 17:37
  then it's it's still going to be mutter.
• 17:39
  But he's not making a profit out of it.
• 17:42
  He's basically he's doing it as a favour for the other guy.
• 17:46
  OK, let's get to bet. This is important.
• 17:49
  I want to just go through bet. I think that you address that.
• 17:55
  OK, let's read bet. A drop of background before we
• 18:00
  start. The word iska, and that's where
• 18:03
  the word heteriska comes from. The word iska does exist in the
• 18:07
  Gemara, does exist in, in, in, in, in the Shokanara.
• 18:12
  So it's once you understand, see if bet you can start to
• 18:18
  understand what are had, how begin to understand the
• 18:21
  mechanics of a heter isca and it comes from the expression of
• 18:24
  isca. Isca is a business deal.
• 18:26
  So normally what would happen the a normal way of a business
• 18:34
  deal if you want to give merchandise to somebody, let's
• 18:37
  say you'd have an investor and he gives merchandise to the, to
• 18:41
  the, to the salesman or whatever he's going to do.
• 18:44
  But it's good. But it's a partnership.
• 18:46
  They want to share the profits. So the way it usually would work
• 18:51
  is a stomp case. The one who's making the deal
• 18:56
  acts as a schomer. And therefore if something
• 18:59
  happens to the merchandise, who would lose?
• 19:02
  The the investor, the one who gave him the merchandise would
• 19:05
  lose. If it's an onus, at least that's
• 19:08
  typical. So the one who's giving him the
• 19:12
  money has a lot of risk at stake because all the loss if anything
• 19:18
  happens is on the one who's giving the merchandise.
• 19:21
  So the one who's receiving who's who's now working the managing
• 19:25
  partner with this, with this item, he doesn't have so much
• 19:29
  risk, doesn't have a lot of skin in the game.
• 19:32
  So Hazal made a Takana in order for the lender or the one who's
• 19:37
  giving the merchandise, the no team and the, and the investing
• 19:41
  partner, we'll call him, I saw that coins in Rabbi Reisman.
• 19:47
  It's a very nice way to nice word for it, investing partner
• 19:51
  and versus the managing partner. We'll just continue with that.
• 19:55
  So the one who's the, the notain and the macabre.
• 19:58
  So the, in order to protect the notain, Hazal made it to Kana.
• 20:04
  It's Kana der Abana, but it's it holds and they made it, they
• 20:08
  called it an isca. That whatever the you have, this
• 20:11
  Iska it's and this is, it's in the Kumar Baba Baba Metsiya
• 20:16
  Kuftala where it calls it Palga Malva and Palga Picadon.
• 20:23
  This way they each share 5050% of the responsibility.
• 20:28
  It's not and it's a win, win situation because this way the
• 20:32
  one who's giving the money knows that the, the guy who's managing
• 20:36
  has skin in the game will lose half.
• 20:38
  And the, the the managing partner is willing to go along
• 20:42
  with it because otherwise no one's going to lend them money
• 20:44
  to make a business deal. So it's a, it's a win win for
• 20:47
  everybody and it's considered half, half.
• 20:49
  That's the way a normal business deal works.
• 20:52
  And, and OK, so we're not yet to head to Iska, but that's how it
• 21:00
  the head to Iska's all based on this.
• 21:02
  Now one last thing to point out, because Hazal made it Palga
• 21:07
  Palga, half of it they called Amalva alone.
• 21:12
  Half of it they called a Picado. So the part that's Amalva, half
• 21:16
  of it, the man, the macabre, the managing partner is 100%
• 21:20
  responsible on that half. And the one who gave the money,
• 21:25
  half of it's a Picado. And so he's 100% responsible on
• 21:29
  that half. But on the overall deal, it's
• 21:32
  5050. Each one is 100% responsible on
• 21:35
  their half. So but this created a problem by
• 21:41
  making this Hazal created Ribas because the only reason why the
• 21:50
  macabre is going to take responsibility on the the Malva.
• 21:56
  He's taking a loan and he's but he's benefiting from the loan by
• 22:02
  he's able to get in other words, why or he's he is making money
• 22:12
  off of the Picadon and why am I I gotta get fuzzy here.
• 22:22
  He's making a the reason why, right?
• 22:30
  He's working on the for this Picadon and paying back the
• 22:35
  owner because of the loan. The only reason why he's taking
• 22:40
  the Picadon and making the profit and giving all the
• 22:44
  profits to the to the to the noting to the investor is
• 22:48
  because he got this loan. So because he got this loan,
• 22:53
  he's now going to pay interest per SE.
• 22:55
  All the profits from the Picadon is the interest for having this
• 23:00
  model that he's able to make money off of.
• 23:02
  He's taking a free loan to make money off of it.
• 23:04
  But now he has but he's not a not a free loan and he's he's
• 23:08
  paying all the profits of the piccata.
• 23:10
  So that's where the problem begins.
• 23:16
  Half the profit here. Well, they'll finish explaining
• 23:20
  and we'll read it inside tomorrow.
• 23:22
  Half the he is he is making half the profit of the whole
• 23:29
  investment. But really he's making 100%
• 23:32
  profit off of the Malva and 0 profit off the Picadon and he's
• 23:38
  giving all of that to the one to the off the Milva, but he's
• 23:43
  making all the profit off the Milva, the loan, and he's making
• 23:48
  zero profit off the Picadon. He's giving and he's working for
• 23:53
  free, paying this Picadon to the owner.
• 23:57
  He show merit, but he's paying for free.
• 24:01
  Well, he's he's doing it in order that he'll get a free
• 24:03
  loan. Yeah.
• 24:08
  So that's anyway. So that's the problem.
• 24:10
  So now we're going to read it inside and then you'll see how
• 24:13
  it how it plays out. I'm just trying to think
• 24:16
  anything else we want to point out real quick, Right.
• 24:19
  Again, the same concept here. It's only a ribist or a banana,
• 24:23
  either because you're only going to pay it from this item itself
• 24:27
  or it's not really called a normal malva and it's not.
• 24:30
  This is a weird thing because all made it Takana for it.
• 24:33
  So the Ritz is not a Milva. Fine Ritzva, the rhomba or the
• 24:36
  GRA. It pointed out it's just it's
• 24:38
  takanasakamim, but it's not a normal Milva.
• 24:40
  So therefore it doesn't have, it's not going to be ribiscus
• 24:43
  ugarisa and fine, we'll stop here.