By Rabbi Meir Orlian
Yosef owned a small Shas that he had bought six years before when he had first entered yeshiva. It was in good condition but an old edition. When Yosef got engaged, his chavrusa bought him another Shas in a new edition.
“I’ve wanted the new edition for a while,” said Yosef appreciatively. “What can I do with the old Shas?”
“You can leave it for sale on the table outside the beis midrash,” said his chavrusa. “Maybe someone will buy it.”
Yosef put the Shas on the table with a note: “Shas for sale, $30—Please give money to Yosef or leave in this envelope on his table.”
Two days later, Moshe met Yosef at supper and said: “I’d like to buy your Shas, but I have to run home now.”
“Fine!” said Yosef. “It’s outside the beis midrash; take it when you want.”
“I don’t have money with me,” said Moshe. “Can I pay you tomorrow?”
“No problem,” said Yosef. “It’s yours.”
Meanwhile, Shalom saw the Shas that evening and decided to buy it. He took the Shas and put it on his own table. He placed $30 in the envelope and wrote his name on it.
When Shalom came in the morning, he saw that the Shas was gone. “I see that someone took the Shas,” he said to Yosef.
“I know; Moshe bought it,” said Yosef. “When I came in this morning there was money in the envelope.”
Moshe asked Shalom, “When did you buy the Shas?”
“Last night about 10 p.m.,” Shalom said.
“I had already spoken with Yosef at supper and he agreed to sell the Shas to me,” said Moshe. “It’s mine.”
“But I took it first,” said Shalom, “so it’s mine!”
Yosef heard them arguing, each one claiming ownership. “Why don’t we ask Rabbi Dayan?” he suggested.
The three went to Rabbi Dayan. “To whom does the Shas belong?” asked Yosef.
“If you had already agreed to sell the Shas to Moshe, Shalom has no claim to it; you can award it to whomever you want, with a preference to Moshe,” answered Rabbi Dayan. “However, if Shalom does not trust that you had already agreed to sell and there is no proof, he can keep the Shas.”
“Could you please explain?” asked Shalom and Moshe. “We were each certain that we were right.”
“By putting the Shas out for sale, Yosef expressed willingness to sell it to anyone,” explained Rabbi Dayan. “However, when he agreed to sell it to Moshe, he was no longer interested in selling it to anyone else. Shalom cannot acquire it without Yosef’s consent. Although the Shas remained on the table with a ‘For Sale’ note, it no longer expressed intent to sell.”
“If so, shouldn’t the Shas be mine?” asked Moshe. “Yosef agreed to sell it to me at supper!”
“Halacha requires an act of kinyan to confirm a transaction,” replied Rabbi Dayan. “Agreement alone to sell does not finalize it. Thus, you didn’t acquire the Shas, so that Yosef can grant it to Shalom. However, it is unethical and untrustworthy to retract from an agreement, so it is preferable that he grant it to you” (C.M. 189:1; 204:11).
“What if Shalom does not trust that I had already agreed to sell it?” asked Yosef.
“He can claim that he acquired the Shas while it was still for sale by picking it up,” said Rabbi Dayan. “He is now in possession, since it is in hands, and we would apply the rule of ha’motzi me’chaveiro alav ha’raayah—the burden of proof is on the plaintiff. You are not believed without proof to say that you retracted your intent to sell, to take the Shas back from Shalom or grant it to Moshe” (C.M. 222:1, 4).
From The BHI Hotline: Awareness In The Laws
Of Ribbis
I lent a friend $20,000. After the loan came due, I contacted him many times; each time he had an excuse why he could not yet pay back the loan. Sometime later I told him that I needed the money to make a chasunah for my daughter. He repeated that he did not have the money but suggested that I borrow the money from my line of credit, and he committed to make the monthly payments of interest until he is able to repay the loan.
After a year of making interest payments to the bank, he stopped making payments. When I contacted him he repeated that he does not have the funds to repay the line of credit, so I started making interest payments to the bank.
Q. I recently reminded the borrower that he has not repaid the loan. He responded that he spoke with his rav, who told him that he is not permitted to repay me anything more than the $20,000 that I lent him, and furthermore, the money that he paid the bank for the line of credit counts as repayment toward the $20,000 loan that he borrowed. Is what he is saying halachically correct?
A. We have seen numerous instances where people’s ignorance of the halachos of ribbis generates transgressions, headaches, and distress. Therefore we will elaborate and discuss some scenarios that evolve from this halacha.
The response the borrower shared with you is correct. When a lender borrows money with interest from a gentile in order to lend that money to another Jew, it is prohibited for the lender to pass on his costs to the borrower. If they stipulated that the borrower will pay the gentile the interest on behalf of the lender, the agreement would constitute ribbis ketzutzah—Biblically prohibited interest (Y.D. 168:17; Taz, Y.D. 170:3). This is true even though the lender does not benefit from the loan.
For this reason, Reuven may not use Shimon’s credit card, even as an authorized user, and make payments that include ribbis even if Reuven makes payments directly to the credit-card company rather than to Shimon. The same principle applies when Shimon takes out a mortgage loan for Reuven and Reuven is responsible for all of the principal and interest to the bank. In all of these scenarios Shimon is the borrower from the bank or credit-card company and he lends that money to Reuven. If Reuven makes interest payments so that he repays more than he borrowed, the prohibition of ribbis is violated.
If it turns out that a ribbis ketzutzah agreement was made and the borrower paid interest, he can recover that money (Y.D. 161:5). If the original loan agreement did not mandate ribbis payments, the violation is rabbinic, and although the lender should return any interest payments that he received (latzeis yedei Shamayim), he cannot be forced to make those payments.
When the borrower commits to pay ribbis because the lender granted an extension, most poskim maintain that such an agreement constitutes ribbis ketzutzah (Y.D. 166:2; Shach 8). Even according to those who maintain that it is only rabbinically prohibited ribbis, if the borrower did not yet pay back the loan, he may apply interest payments that he has made toward his obligation to repay the principal of the loan. This allowance applies even if the lender is not interested in returning the interest payments (Y.D. 166:3).
Therefore, in order to avoid these uncomfortable situations, it is essential to be alert and make sure that one is not violating the prohibition of ribbis, and if necessary arrange for a heter iska.
Money Matters: Employment, Verbal Terms
Based on the writings of Rav Chaim Kohn, shlita
Q. My employer promised me certain benefits verbally, but now refuses to provide them. Is he required to?
A. Verbal terms are also binding once the employee begins working based on them (B.M. 83a; C.M. 331:1).
If the employer denies having promised these benefits, it depends on whether they are the common practice. The employee has the burden of proof regarding benefits beyond the common practice or work hours fewer than the common practice (C.M. 330:5).
Conversely, the employer has the burden of proof if he claims that the employee agreed to forgo certain common benefits or work beyond the hours commonly practiced. Even if the worker receives a higher than typical salary, it does not serve as proof, since the worker can claim that his work is of higher quality, unless the salary is much higher. Similarly, the employer has the burden of proof that the employee agreed to a salary below the going rate (C.M., Rav Akiva Eiger and Taz 331:1; Aruch HaShulchan 332:14).
This article is intended for learning purposes and not to be relied upon halacha l’maaseh. There are also issues of dina d’malchusa to consider in actual cases.
Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, which is headed by HaRav Chaim Kohn, shlita, a noted dayan. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, please call the confidential hotline at 877-845-8455 or e‑mail ask@businesshalacha.com. To receive BHI’s free newsletter, Business Weekly, send an e‑mail to subscribe@businesshalacha.com.