Malveh veLoveh - Chapter 4

Neshech and marbit are one and the same, as Leviticus 25:37 states: "Do not give him your money with neshech and do not put forth your food at marbit." And further on, Deuteronomy 23:20 speaks of: "Neshech from money, neshech from food, neshech from any substance that will accrue."

Why is interest called neshech? Because it bites. It causes pain to one's colleague and consumes his flesh. Why did the Torah refer to it with two terms? So that one would commit a twofold transgression when violating this prohibition.

Just as it is forbidden to give a loan at interest; so, too, it is forbidden to borrow at interest, as Deuteronomy, ibid., states: "Do not offer interest to your brother." According to the Oral Tradition, we learned that this is a warning to the borrower.

Similarly, it is forbidden to act as a broker between the borrower and the lender when interest is involved. Anyone involved, a guarantor, a scribe or a witness transgresses a negative commandment, as Exodus 22:24 states: "Do not lay interest upon him." This is a warning against the witnesses, the guarantor and the scribe.

Thus, we see that a person who offers a loan at interest violates six prohibitions:

"Do not act like a creditor toward him," "Do not give him your money with neshech" "Do not put forth your food at marbit" "Do not take neshech and tarbit from him" (Leviticus 25:36), "Do not lay interest upon him," and "Do not place a stumbling block in front of the blind" (Leviticus 19:14).

A person who borrows at interest violates two prohibitions: "Do not offer interest to your brother." "Do not place a stumbling block in front of the blind"

The guarantor, the witnesses and the like violate only the prohibition: "Do not lay interest upon him." Any broker who connects between the lender and the borrower or assists or instructs one of them with regard to making the loan transgresses the commandment: "Do not place a stumbling block in front of the blind"

Although the lender and the borrower violate all the negative commandments mentioned above, they are not punished with lashes, because the interest must be returned. For whenever a person gives a loan at interest, if fixed interest is involved, it is forbidden by Scriptural Law and may be expropriated through legal process. The judges expropriate it from the lender and return it to the borrower. If the lender dies, it is not expropriated from his children's possessions.

When a father leaves his sons money obtained by taking interest, they are not obligated to return it, even though they know that it was obtained through interest. If, however, he leaves them a cow, a garment or any other specific article obtained through interest, they are obligated to return it as an expression of honor for their father.

When does the above apply? When their father repented, but was not able to return the article before he died. If, however, he did not repent, the sons need not be concerned with his honor. They are not required to return even a specific article.

When robbers and people who lend money at interest seek to return the money they took, we should not receive it from them. This will make the path of teshuvah more accessible to them. Whoever accepts repayment from them is not looked upon favorably by our Sages. If, however, the stolen article itself was intact or a specific article was given as interest, and it itself is there, it may be accepted.

When interest - whether fixed interest or interest forbidden by Rabbinic law - is mentioned in a promissory note, the lender may collect the principal, but not the interest. If he collected the entire amount, any fixed interest can be expropriated from him. "The shade of interest" - i.e., interest forbidden by Rabbinic law - may not be collected from the borrower by the lender, nor is it expropriated by the court from the lender for the borrower.

Whenever a person writes a promissory note that includes interest, it is as if he documents and has witnesses testify that he denies God, the Lord of Israel. Similarly, whenever a person borrows or lends money at interest in privacy he denies God, the Lord of Israel, and denies the exodus from Egypt, as Leviticus 25:37-38 states: "Do not give him your money with neshech... I am God your Lord, who took you out of the land of Egypt."

It is forbidden for a person to borrow money from his sons or the members of his household at interest. This is forbidden even when he is not tightfisted and he is merely giving them a present. The rationale is that in doing so, he might habituate them to this practice.

When Torah scholars lend money to one another and the borrower returns more than the amount loaned him, it is permitted. It is obvious that the extra amount was only a present that he gave him. For they know the severity of the prohibition against taking interest.

The following laws apply when a person lends money to a colleague, and the borrower discovers more than the sum originally agreed upon, or the borrower returned a debt and the lender discovers more than the sum that was borrowed. If the additional amount was a sum about which a person might easily err, it must be returned. If not, we can assume that the borrower gave the lender a present, he had stolen property belonging to the lender in his possession and sought to return it together in the account without the lender being aware, or another person asked him to return money in such a manner.

What can be considered a sum about which a person might easily err? One, two, five or ten more. The latter figures are included, for perhaps the person counted out the sum in groups of five or ten.

Similarly, if the person found that a group of five or a group of ten had an additional one, he must return the extra amount. Maybe an additional one with which he was counting became mixed with a group of five or ten.

The following laws apply when a person lends a colleague according to a particular coinage, or stipulates in his wife's ketubah that a sum should be paid to her in a particular coinage, and then the ruling authorities increase the weight of that coinage. When the value of produce was reduced because of the increase, he should deduct the proportion of the increase, even if the increase was minimal. If, however, the value of produce is not reduced because of the addition, he need not deduct that proportion. Instead, he should pay him the coin used as currency at that time.

When does the above apply? When the addition was one fifth of its value -e.g., its weight was four units and it was increased to five. If, however, more than a fifth was added, he should deduct the entire proportionate amount of the increase, even though the price of produce did not increase. Similar laws apply with regard to a loan when the weight of a coin was decreased.

The following rules apply when a person lends a colleague according to a particular coinage, and that coinage is disqualified by the ruling authorities. If the lender could use the disqualified coin as legal tender in another country, and the lender has a way of getting to that country, the borrower may repay him in the coinage that he lent him, telling him: "Go and use it in such and such a place." If the lender does not have a way of getting there, the borrower must repay him in the coinage that is legal tender at that time. Similar laws apply with regard to a ketubah.

Some of the Geonim have ruled that when a borrower forgoes the interest a lender charged or will charge on his behalf, his statements are of no consequence, even though he affirms his waiver with a kinyan or gives it as a present. Their rationale is that whenever interest is given, the borrower is waiving his rights. The Torah, however, does not accept this waiver and forbids it. Therefore, one cannot waive interest, even interest forbidden merely by Rabbinic Law on behalf of the lender.

It appears to me that this ruling is incorrect. Instead, since the lender is told to return the interest, and he knows that he violated a prohibition, and the borrower has the right to collect the money, if the borrower desires to waive the obligation to return the interest he may, just as a person may waive the return of a stolen article. Indeed, our Sages explicitly stated that when robbers and people who lent money at interest seek to return the money they took, we should not receive it from them. This indicates that the waiver of the obligation to return the interest is effective.

It is permitted to give property belonging to orphans to a faithful person who has valuable properties to offer as security, in an arrangement that is likely to lead to profit and unlikely to lead to loss.

What is implied? The court tells the person: "Do business with their property. If there is a profit, give them a portion of the profit. If there is a loss, suffer the loss yourself." This is "the shade of interest." Nevertheless, "the shade of interest" is forbidden only because of a Rabbinic decree, and our Sages did not apply their decree to property belonging to orphans.