Malveh veLoveh - Chapter 4

Both these terms mean “interest.” In his Sefer HaMitzvot (Negative Commandment 245), the Rambam reckons the two injunctions mentioned here as one of the Torah’s 613 mitzvot. Note also Sefer HaChinuch (Mitzvah 343). See Note 3.
This subject - the prohibitions against interest - is the subject of the next seven chapters. After having outlined in the first three chapters the basic obligations to lend money to one’s colleague, the Rambam explains the details concerning a prohibition that is intrinsically related to this issue - taking interest. And then in the remaining chapters, he speaks about difficulties that might arise in the collection of the debt.
The Rambam’s inclusion of the prohibition against interest in this context has aroused the attention of the commentaries, who note that the Tur and the Shulchan Aruch do not discuss interest in Choshen Mishpat - the section devoted to monetary law - but rather in Yoreh De’ah, the portion of their texts that deals with the Torah’s chukim, prohibitions whose motivating rationale is not understood by human logic - e.g., kosher food, the laws of family purity and the like.
It is possible to explain that this classification is itself significant. The Rambam considers the prohibition against interest a point of monetary law and therefore includes it here. According to his perspective, it is improper to take interest. Doing so involves taking money that is not justly earned and bears a resemblance to theft (See the notes on Halachah 3; see, however, the notes on Chapter 5, Halachah 1.)
The Tur and the Shulchan Aruch, by contrast, place the prohibition against interest in Yoreh De’ah. According to their perspective, if the Torah did not prohibit taking interest, there would be no reason to forbid it. On the contrary, one of the cornerstones of financial thinking is that money makes money, and a person can justly expect a return for his money. Why is interest prohibited? For spiritual reasons that we do not understand, just like non-kosher food or a woman in her menstrual state.

This is the literal meaning of the Hebrew term.

The Rambam’s statements literally mean “to violate two transgressions because of it.” The intent is not, however, that there are two prohibitions, for as mentioned above, the Rambam mentions them as a single prohibition in Sefer HaMitzvot.
In his introduction to Sefer HaMitzvot (General Principle 9), theRambam elaborates on this concept, explaining that with regard to the prohibition against taking interest - as in the case of other Scriptural prohibitions - the Torah warns against their violation several times. These warnings are intended to emphasize the seriousness of the prohibition and are not to be considered to be a separate Scriptural commandment, for the activity prohibited is the same.

Indeed, Sefer HaMitzvot (Negative Commandment 236) and Sefer HaChinuch (Mitzvah 572) consider this to be one of the Torah’s 613 mitzvot. This concept can be derived from the fact that in contrast to the passage as a whole, which is written using the singular, this verse is stated in the plural. The implication is that the prohibition involves not only the lender, but also the many other people involved.

The Ramah (Yoreh De’ah 160:1) quotes the Hagahot Maimoniot, which add that all the prohibitions mentioned apply even when the lender is poor.

Sefer HaMitzvot (Negative Commandment 237) and Sefer HaChinuch (Mitzvah 68) consider this to be one of the Torah’s 613 mitzvot. With regard to the status of the witnesses to a loan at interest, see the notes on Halachah 6.

For one can assume that a person who lends money at interest will press the borrower for payment. See Maggid Mishneh.

This is a general prohibition against performing an activity that will cause a colleague to sin.

The Maggid Mishneh notes that Bava Metzia 75b, the source for the Rambam’s statements mentions a third prohibition (Deuteronomy 23:21): “To your brother, do not offer interest,” and questions why the Rambam does not include it.

They do not violate the prohibition against placing a stumbling block in front of the blind, because they are not the instigators of the transgression. Tosafot (Bava Metzia 75b) explains that it depends whether or not the loan would be given without their involvement. If it would not have been given otherwise, they are liable for this transgression as well.

Since this person is not directly involved in the actual process of the loan, he does not violate any of the prohibitions against taking interest. He is, however, liable for violating the general prohibition against giving unworthy advice to a colleague.

And whenever a prohibition can be rectified by making financial restitution, the person is required to make restitution and is not punished by lashes. See the ruling in Hilchot Gezeilah 1:1.
Bava Metzia 62a interprets Leviticus 25:36: “And your brother shall live together with you,” as a charge requiring the lender to return the interest to the borrower. It is as if the Torah were saying: “Return it to him so that he may live.” The Ramban (in his Hosafot to Sefer HaMitzvot) reckons this as one of the 248 positive commandments. The Megilat Esther explains that the Rambam does not give it that distinction because he consider it to be included in the commandment to return a stolen article.
The commentaries question why the guarantor, the witnesses, the scribe and the others involved in the loan are not punished with lashes, for there is no act they can perform to rectify their error. Among the resolutions offered (Sefer HaChinuch, Mitzvah 73) is that since the lender is not punished by lashes for this transgression, as stated above, it is not appropriate that the accessories to the loan be given more severe punishment than he.

I.e., at the time the loan was given, a fixed amount or percentage was stipulated to be repaid as an increment to the lender.

In contrast to interest forbidden by Rabbinic law, which - as will be explained in Halachah 6 and in Chapter 6, Halachah 1 - is not expropriated by the court.

Indeed, he may be compelled physically to return it. It cannot, however, be expropriated from his property without his knowledge [Shulchan Aruch (Yoreh De’ah 161:5)].

In his gloss on the Shulchan Aruch (Yoreh De’ah 161:6), the Dagul Mer’vavah questions whether a person who took interest is obligated to return the interest to the heirs of the person from whom he took the interest. There is room to postulate that since the obligation to return the interest is derived from the verse: “And your brother shall live together with you,” that obligation does not apply once he is no longer alive. He explains that when a person seeks to repent fully, he should try to return the money. The court, however, is not empowered to expropriate it.

For the prohibition against taking interest and the mitzvah to return it are incumbent on the father, not the son (Turei Zahav 161:4).

This indicates that the mitzvah to return the interest is incumbent on the gavra, the person who committed the transgression, and not on the cheftza, the money itself. The person must atone for his own sin. There is no obligation that the money itself be returned. Therefore, when the person dies, his heirs - who did not perform the transgression - return the money. See Bava Kama 112a.

I.e., an article that will be recognized by people at large as having been taken by the sons' father through interest (Turei Zahav 161:5).

See Hilchot Mamrim 6:5, which states that a person must honor his parents after their death.

For the public knowledge that their father committed a transgression will shame his memory. I.e., even in this instance, the obligation is not to return the article, but rather to preserve their father’s honor. That, however, can be accomplished only by returning the article.

For after their death, a person is obligated to give a full measure of respect and honor to his parents only when they conducted themselves righteously. During their lifetime, by contrast, regardless of a parent’s conduct, a son is obligated to show him honor (Hilchot Mamrim 6:11).

I.e., at their own initiative. As stated in Halachah 3, if, by contrast, a person who took interest persists in his wrongdoing, he should be compelled to return the money by the court, as stated in Halachah 3.

Bava Kama 94b relates that there was a person who had lent money at interest. He felt an urge to repent and began to consider returning the money he had taken. When his wife saw him contemplating this, she reproached him: “If you return what you have taken, you will have nothing left. You will have to sell even the shirt off your back.” When the Sages heard this, they ordained that people should refuse to accept the penitent gifts of robbers and people who lent money at interest.

See the Hagahot Maimoniot and Shulchan Aruch (Choshen Mishpat 161:7) who state that this applies only when the primary occupations of the lender was to lend money at interest. If, however, he earns his livelihood through other means, but also lends at interest, one may accept repayment.

The commentaries have noted the difference in the wording used by the Rambam. With regard to a stolen article, the Rambam uses the wording “was intact” - i.e., even when it was not specific, while with regard to an article taken as interest, he speaks of “a specific article.” Nekudot HaKesef 161:7 notes that the Perishah and Rabbenu Yerucham interpret the law as referring to any article taken through interest, even one that others will not recognize. Nekudot HaKesef refutes this interpretation, explaining that a stolen article remains its owner’s property until: a) the owner despairs of its return, and b) it is given by the robber to someone else. Therefore, as long as it exists intact, it should be returned. Money given as interest, by contrast, legally belongs to the person to whom it was given. Hence, it is only a specific article that people will associate with the interest that must be returned.

Which is forbidden by Scriptural Law.

The Maggid Mishneh states that there are commentaries that explain this ruling as follows: Bava Metzia 72a mentions an opinion that disqualifies the promissory note entirely and considers it of no legal value, as punishment for the fact that it mentions interest. This opinion is, however, not accepted as halachah. Instead, despite the fact that the witnesses to the promissory note violate a prohibition (see Halachah 2), the promissory note is valid. The reason that the witnesses are not disqualified is that the prohibition is not of common knowledge. According to this view, the principal can be collected even from property that has been sold.
The Ramban differs and states that if the witnesses to the promissory note knew that it involved interest, the witnesses - and therefore the promissory note itself - are disqualified. The principal cannot be collected from property that is sold. Moreover, the only way it can be collected from property in the borrower’s possession is when the borrower acknowledges the loan or when there are other witnesses to the loan besides those who signed the promissory note. The Ramban does, however, offer an explanation for the baraita (Bava Metzia 72a) on which the Rambam’s ruling is based, stating that it applies when the interest was not specified in the promissory note, and the witnesses did not know that the loan involved interest. Alternatively, it applies in a situation when they were compelled at the pain of death to sign the promissory note.
The Shulchan Aruch (Yoreh De’ah 161:11; Choshen Mishpat 52:1) rules that when a promissory note includes interest, the lender may collect the principal, provided a distinction is made between the principal and the interest. From this (and from his statements in Choshen Mishpat, Chapter 34), it appears that he does not disqualify the witnesses and the promissory note. If, however, the interest and the principal are lumped together as a single sum, the promissory note is disqualified and even the principal cannot be collected unless the borrower admits his obligation.

I.e., when the lender sues for payment of the debt, he is not entitled to collect this interest.

If it was paid and then the borrower seeks to have the money expropriated by the court. The lender does, however, have a moral and spiritual obligation to return it [Shulchan Aruch (Yoreh De’ah 161:2)].

The verse reflects a thematic connection. The lesson from the exodus is that not only is God in the heavens, but His providence controls the events that transpire here on earth. Now when a person lends or borrows money at interest, what he is implying - whether or not he consciously admits it - is that he feels that God will not manifest His providence in a manner that will enable him to earn his livelihood in a permitted manner. (See Maggid Mishneh.)

Our translation reflects the Rambam’s understanding of Bava Metzia 75a. Although this understanding is also indicated by the rulings of the Tur and the Shulchan Aruch (Yoreh De’ah 160:8), the commentaries note that the wording of the Talmud suggests that the person is lending to his sons, not borrowing from them.

I.e., he is not giving them the increment because the conditions of the loan obligated him to do so, but out of his own generosity.

Our Sages feared that once they tasted the possibility of receiving an increment for money without effort, this would spur them to continue seeking financial gain in this manner.

It would appear that according to the Rambam, this concept applies even when the borrower promises at the outset to give the lender more than he received from him. As long as the lender does not stipulate that the borrower must pay more, this is permitted. There are, however, other opinions, which maintain that this leniency applies only with regard to food items (as could be postulated based on the story from Bava Metzia 75a, which serves as the source for this ruling), and only when the interest is only a small amount (Maggid Mishneh).
The Shulchan Aruch (Yoreh De’ah 160:17) and the Ramah accept the latter perspective. The Hagahot Maimoniot and the Ramah add that even Torah scholars should not make it a custom to make such loans, lest the common people observe their conduct and become less conscious of the seriousness of the prohibition against taking interest.

The Turei Zahav 160:13 quotes the Hagahot Asherei, which state that different laws apply with regard to a common person. Paying more than the principal is forbidden even if he explicitly states that he is giving the increment as a present.

There are some printings of the Mishneh Torah that do not include this clause or place it in brackets. Nevertheless, it is included in the text of the Maggid Mishneh and is also logical within the context of these laws that deal with a borrower paying more than the principal.

I.e., we do not consider the extra amount to be interest. This applies even if a Torah scholar is not involved.

As stated in Hilchot Gezeilah 1:8, this is considered to be an effective manner of returning stolen property. It is not necessary to notify the person from whom the property was stolen. We assume that he will become aware of the extra amount.

Bava Metzia 63b offers this explanation with regard to a person who is stingy and is unlikely to give a present.

I.e., in a situation where the two never had any contact before, we assume that this was the reason he gave him the extra amount (ibid.).

I.e., it is obvious that an error of one (when a person counts individually) or two (when he counts in pairs) can be made. The Maggid Mishneh states that if it is local custom to count according to other groupings, the possibility of erring with regard to that number is also taken into consideration. The Ramah (Choshen Mishpat 232:2) quotes this ruling.

I.e., there were six or eleven extra.

It was customary for a person to place an additional coin next to a group of five or a group of ten. When he was finished counting, he would count the ones to know the entire sum. Perhaps this coin became mixed with the group.

The Maggid Mishneh interprets this phrase to mean that the lender lent the borrower produce or merchandise worth such and such, stipulating that he be repaid an amount in the currency used in a particular locale.

In Talmudic time, the value of coinage and its weight were dependent on each other. In other words, unlike the present age, when a coin’s value is merely symbolic. In that era, a dinar was worth an equivalent weight of silver, no more and no less. There were times when the ruling authorities would increase the weight of the local coinage by a specific percentage.

I.e., before the increase in the weight of the currency, a dinar could purchase a pound of wheat; and after the increase, it could purchase a pound and a quarter.

In the above instance, since the old coinage is now worth only 4/5 of the present coinage, he should pay only 4/5 of the sum mentioned in the promissory note or the ketubah. If the lender does not make such a deduction, there are authorities who consider this to be interest forbidden by Scriptural Law, and others who maintain that it is forbidden only by Rabbinic Law [Beit Yosef (Yoreh De’ah 165)].
We rely on the local professionals who are knowledgeable concerning such manners with regard to the determination of whether the price of produce has risen or not. Even if they are gentiles, we accept their statements provided they are made in the course of conversation - i.e., without the gentile knowing that his word is being relied upon [Ramah (Yoreh De’ah 165:1)].

The Maggid Mishneh states that if there are other countries where the old coinage is still employed, and the lender can travel there easily, the borrower may pay him in the original coinage.

The Siftei Cohen 165:3 states that this law applies even when the price of the produce was reduced because it was a year of plenty. Since the increase in the weight of the coin did not increase its buying power, an adjustment need not be made.

I.e., despite the increase in the hard metal value of the coin, its buying power remained the same.

In many contexts - e.g., the obligation to pay an additional fifth for terumah when it was eaten unintentionally, when returning a stolen article and the like - the Rambam defines a fifth as “a fifth of the new total.”

The Beit Yosef (Yoreh De’ah 165) explains why the figure one fifth was chosen. Since there is no difference in the buying power of the new coin, a person who possesses one might think of melting several of them down and printing copies of the older, smaller coin. If the addition is no more than one fifth, this will not be a worthwhile proposition, because the jeweler who fashions the new coins will charge for his services. If, however, the new coin weighs more than a fifth more, such a proposition could become conceivable.

I.e., in the appropriate circumstances, he is required to pay an increased amount. Making such an adjustment is not considered to be interest.

If, however, a new coinage is instituted without the previous coinage being disqualified entirely, loans in the previous coinage should be paid in that coinage even though its value depreciated significantly (Rambam in one of his responsa).

Since that coinage is still legal tender in an accessible place, the borrower may repay him in that coinage, because that was the original stipulation. We do not consider significant the fact that the lender will be compelled to undergo some extra difficulty to journey to the other country.
The Maggid Mishneh notes that the Rambam uses the same wording as in the previous halachah, indicating that this also refers to a situation where the lender gave the borrower produce or merchandise, but attached a monetary value to it. Taking this concept further, there are authorities who maintain that if, at the outset, the loan was made in coinage, it can be returned using that coinage, even if the coinage has been disqualified. It does not appear, however, that the Rambam makes such a distinction.

Or if the country in which the person is living has regulations forbidding taking such coinage to the other country [Tur, Ramah (Choshen Mishpat 74:7)].

See Hilchot Ishut 16:6. Several points mentioned there also relate to the previous halachah.

A formal act of contract attesting to his willingness to be bound by the stipulations he makes.

I.e., the court will expropriate it for him.

The Rambam’s wording indicates that although he differs with the Geonim with regard to interest that is already in the possession of the lender, he does not necessarily differ with regard to interest that has not yet been paid. It would seem that he would not desire the borrower to pay the additional amount (Maggid Mishneh).

Bava Kama 92b, as quoted in Halachah 5.

See Hilchot Nachalot 11:1, where the Rambam describes this arrangement in detail; he mentions it here only to emphasize that the prohibition against taking interest is superseded.

Since it is not a loan, but rather an investment that involves commercial dealings, and profit is not guaranteed, it is forbidden only by Rabbinic Law, not by Scriptural Law.
See Chapter 5, Halachah 8, which forbids this type of investment and instead advises the employment of a heter iska, an arrangement where the potential for profit and loss are equally balanced, and the person managing the investment receives a wage. See Hilchot Sh'luchin V'Shutafin, Chapter 6, with regard to the particulars involved in such arrangements.

I.e., our Sages felt that the need to protect the financial future of the orphans takes precedence over employing safeguards for the prohibition against taking interest.