Malveh veLoveh - Chapter 7

As mentioned in Chapter 6, Halachah 7, this arrangement is prohibited by Rabbinic law. The Rambam is speaking after the fact, if that prohibition has already been violated.

Instead, we reduce the amount of the debt. The extent of that reduction should be determined by the court, as stated in Chapter 6, Halachah 2.
Rashi (Bava Metzia 67a), the Rashba and others maintain that no reduction should be made. Instead, the entire debt must be repaid to the lender. The rationale is that since the borrower knew that the lender would be consuming the produce and nevertheless gave the property as security, it is as if he willingly waived his rights to it.
This perspective is quoted by the Tur and the Ramah (Yoreh De’ah 172:1). The Ramah, however, adds that once the borrower tells the lender not to consume the produce any longer, the lender is forbidden to do so. If he does, what he consumes is deducted from the debt.

For as explained in Chapter 6, Halachah 7, since it is possible that the lender will not profit from the field, taking the field as security is not included in the Scriptural prohibition against interest.

As stated in Chapter 6, Halachah 1, interest forbidden by Rabbinic law may not be expropriated through legal process.

For this also is merely “the shade of interest.”

This is also to the borrower’s disadvantage, as will be explained.

In several situations, we find that restrictions imposed by Rabbinic law against taking interest are relaxed in favor of orphans.

For the court’s consideration of orphans is not extended to this degree.

Thus, it is as if both debts have been repaid. The Tur and the Shulchan Aruch (Yoreh De’ ah 172) do not quote this concept and do not grant this leniency to orphans.

As mentioned above, even according to the Rambam, this consideration is granted only with regard to property owned by orphans. If the properties are owned by others, we do not grant them such consideration. Instead, each debt is regarded as a separate entity, and an appropriate reckoning is made. This is to the disadvantage of the borrower, because the 50 dinarim from the field from which the renter consumed 150 dinarim will not be counted at all.

As stated in Halachah 5, although this arrangement is forbidden, it is possible that at the outset the community was unaware of the prohibition and over time a custom was established. Since only “the shade of interest” is involved, the custom must be respected.

According to the Rambam, there is no difference what the local custom is - whether the borrower has the right to redeem his field or not - such an arrangement is forbidden. Rashi and other Rishonim, however, make distinctions between the two situations. See Tur and Ramah (Yoreh De’ah 172:1).

I.e., if the borrower desires, he may redeem his field before the debt falls due.

The rationale is that it is an accepted principle in Jewish business law that all business arrangements are carried out according to the prevailing local custom. Unless stated otherwise, we take it for granted that both principals agreed to act accordingly.

I.e., in these places, the borrower is not given the right to pay the debt earlier and redeem his property. Instead, it must remain in the lender’s possession for the entire time stated.

I.e., we assume that the lender would not have given the loan unless he were allowed to maintain possession of the property for at least this amount of time.
The Maggid Mishneh and the Kessef Mishneh quote the opinions of the Rashba and the Ritva, who maintain that it refers to a place where there is no established local custom.

The Maggid Mishneh mentions a difference of opinion among the Rabbis. Rashi (Bava Metzia 67b) states that this law applies only when the stipulation was made at the time the money was given. (He states that this appears to be the Rambam’s position.) The Ramban and the Rashba, however, maintain that the stipulation is binding even when made afterwards.

For he is bound by the terms of his agreement.

Here also, the Maggid Mishneh mentions a difference of opinion among the Rabbis when this law applies. Rashi maintains that even if the stipulation was made at the time the money was given, a kinyan must be made for the stipulation to be binding. The Ramban and the Rashba differ and maintain that a kinyan is necessary only when the stipulation is made after the money was given.

Otherwise, the lender’s commitment is considered an asmachta, a commitment he did not expect to keep, and is not binding. For as stated in Hilchot Mechirah 11:6, whenever a person agrees to a conditional agreement when many variables are involved, we assume that his commitment is not serious.

Since the original owner/borrower has the right to redeem his property at any time, it is not considered to be landed property belonging to the person who lent him money. Instead, it is considered to be equivalent to movable property that cannot be expropriated from the heirs by a creditor of the person whose estate the inherited.

A firstborn is granted a double portion of property belonging to his father, but not of money owed to the estate by debtors. (See Hilchot Nachalot 3:1,5.) Since the property given as security does not belong to the deceased - for it can be redeemed at any time - the firstborn does not receive an extra share in it.

All debts are annulled after the Sabbatical year. Had the property given as security been given without a condition, the debt would not be have been nullified by the Sabbatical year, as stated in Chapter 3, Halachah 5. Nevertheless, since that the property can be redeemed, different laws apply and the debt can be nullified.
The Rashba questions: When the term of a loan extends beyond the Sabbatical year - e.g., the money was given for 10 years - the debt is not nullified by the Sabbatical year. Why then in this situation is the debt nullified? Why does the fact that the borrower can redeem the security detract from the power of the lender’s position?
He explains that we are speaking of a situation where the loan has already failen due. Hence, the Sabbatical year would nullify the debt. The only protection the lender has is the security, and as stated above, since it was given conditionally, it is not effective (Maggid Mishneh)

For as soon as the borrower takes possession of the field all the produce it contains belongs to him.

I.e., it will remain in his possession until the original owner repays his own debt.

I.e., until the time the original owner pays the debt, it is divided among the heirs, and the firstborn receives a double share.

As other debts for which security was given, as stated above. See Kessef Mishneh (Hilchot Sh’mitah V’Yovel), which uses this law as proof that only land that has already been taken into the possession of the lender can prevent a debt from being nullified. If the lender has not taken possession of the land, even if a debt was confirmed by a promissory note and a field designated in that note, the Sabbatical year can nullify the debt.

Without deducting from the debt.

Chapter 6, Halachah 7.

In which instance, there is no prohibition against taking interest in this manner.

And the lender is allowed to keep the benefit he received.

The Maggid Mishneh, in apparent contrast to the Rambam’s view, states that this opinion should be given primacy.

Without paying the debt.

Needless to say, if, at the outset, he had made this arrangement with a Jew, he would have had to pay rent. The leniency is granted because at the beginning, the loan involved a gentile.

Rashi (Bava Metzia 73b) states that this law applies only when the purchaser does not agree to pay the gentile’s debt. If the Jewish purchaser accepts that responsibility, the lender must pay rent. The Maggid Mishneh states that the Rambam would also accept this principle. The Ramban and the Rashba free the lender of responsibility even in such a situation.

The Maggid Mishneh points to this as an indication that the Rambam accepts Rashi’s perspective, for he emphasizes that the repayment of the loan is dependent on the gentile. In his Shulchan Aruch (Yoreh De’ah 172:5), however, Rav Yosef Karo quotes the Rambam’s ruling verbatim although in his Beit Yosef, it appears that he accepts the Ramban’s opinion.

For according to the secular law of that era, giving property as security was equivalent to selling it for a limited period of time.

There is no question that this element of the relationship is permitted entirely.

I.e., a price less than its true value.

For he is deriving a monetary benefit - the difference between the price he fixed and the property’s true value - for having given the loan.
The above follows the interpretation of Rashi (Bava Metzia 65b). The Beit Yosef (Yoreh De’ah 172) interprets the Maggid Mishneh as understanding the passage differently and forbidding the mention of a specific price, even if that is the true value of the property.

For he is not receiving any benefit for having given the loan. When the borrower desires to sell his property, he will receive its fair value.
The Ra’avad questions: Why is the owner compelled to sell the property to the lender? The agreement is an asmachta, a commitment that the borrower never intended to keep, and hence is not binding.
He explains that we are forced to say that this relates to a situation where a formal agreement was made between the lender and the borrower, with the borrower completing a sale made on the condition that when the borrower desires to sell the property, the transaction will become effective retroactively from the time the loan was given. See Hilchot Mechirah 8:7-8. The Maggid Mishneh states that this is also the Rambam’s intent.

Note the contrast to Halachah 10.

Although the owner is receiving an increase for the delay of payment, there is no prohibition involved. The rationale is that rent is not due until the end of the rental period, and it is ordinary business practice to charge a higher rent for a longer period. Thus, although the tenant is paying more, there is no interest involved, because he was never obligated to pay the owner. For that reason, when a sale and not a rental is involved, it is forbidden to have the purchaser pay more in return for extended credit. (See Chapter 8, Halachah 1.)
The Hagahot Maimoniot [quoted by the Ramah (Yoreh De’ah 176:6)] emphasizes that if an agreement had already been made, altering it may be considered to be interest. For example, if the tenant had agreed to pay a lesser amount over a longer period of time, the terms cannot be changed to pay more over a shorter period.

By fertilizing it, weeding it, or the like.

Since the quality of the field will be improved, it is justifiable to ask a higher rent.

In this instance as well, the improvement in the value of the ship or the store justifies charging a higher rent.

For in this instance, he is using the money for the purpose of his business, and not for enhancing the value of the store or the ship. Hence, the increase in payment is considered to be interest on the loan.

The converse of increasing the rent for a courtyard in return for delayed payment is also acceptable with regard to delaying the payment for wages. For example, an employer may offer a worker 1 zuz a month or 15 zuz at the end of the year. The rationale is that wages for a worker, like rent for property, are not due until the end of the specified period [Maggid Mishneh; Shulchan Aruch (Yoreh De’ah 176:6)]. See also Halachah 12.

For the person is receiving a greater value for not receiving reciprocation immediately.

Digging at the roots of the trees. Our translation for this and the other terms in this halachah are taken from the Rambam’s Commentary on the Mishnah (Bava Metzia 5:10).

In preparation for sowing.

For each one is receiving an equivalent value for his labor.

For depending on the time, the value of either of the tasks may be greater than the other. If the colleague reciprocates by performing the other task at more or less the same time as the first, there is no question of interest involved. If, however, he delays, there is the possibility that the value of the tasks will change and he will be receiving more in return for postponing the reciprocation.

The Hebrew term used by the Rambam means “the dry period” - i.e., the summer, when in Eretz Yisrael, it does not rain, and the land dries out.

Throughout the entire rainy season, there is no difference if one reciprocates on the next day or shortly thereafter. One may not, however, reciprocate in the summer. Similar principles apply in the summer.

I.e., instead of receiving reciprocation immediately, he will receive it later.

Plowing in the raining season is more difficult, because the ground is wet and the days are shorter [Rambam’s Commentary on the Mishnah (loc. cit.)]. Thus, the person will receive something of greater value, plowing in the rainy season, for postponing payment.

Before he actually starts working.

Four dinarim.

For he has not actually begun to work.

Thus, the employer will be receiving benefit for having given money in advance.

And the employer gives him the money immediately.

And thus he is receiving benefit for paying the sum in advance. The rationale is that, since he has already begun to work, our Rabbis considered this as hiring oneself out for less (which is permitted - see Halachah 8), rather than accepting a loan.