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Bava Metzia, 61

1) THE "GEZEL" NATURE OF THE PROHIBITION OF "RIBIS"

QUESTIONS: Rava asks why the Torah must give three specific prohibitions of stealing -- Ribis, Gezel, and Ona'ah, when one of them would suffice to teach the others. The Gemara concludes that in truth the prohibition of Gezel could have been derived from the prohibitions of Ribis and Ona'ah (through a Tzad ha'Shaveh).

The Gemara makes it clear that the prohibition of Ribis stems from the concept of Gezel. However, there are a number of problems with this supposition.

1. Why should taking interest -- which is, in effect, payment in return for the use of one's money -- be different than taking rent, which is also payment in return for the use of one's object? In the case of rent, the person returns the object to the owner together with the rental fee. Why, then, can a person not return borrowed money together with an interest payment?

2. If Ribis is considered a form of Gezel, then why is it permitted (and, according to some opinions, even a Mitzvah) to take Ribis from a Nochri? It is prohibited to steal from a Nochri!

3. How can Ribis be considered Gezel, theft, when the borrower explicitly asked to borrow money with interest and he willingly pays the interest? Theft is when someone takes something against the will (or without the knowledge or consent) of the owner!

ANSWERS:

(a) Gezel is defined by what the Torah says is forbidden to take (and not by taking something without the knowledge or consent of the owner). The element of Gezel which exists in the prohibition of Ribis is a result of the fact that the Torah curtails one's right to take interest on loans to fellow Jews. Since the Torah prohibits taking interest, doing so constitutes Gezel. This understanding of the Gezel involved with Ribis answers our questions:

1. The Torah does not prohibit taking a fee for lending one's object (or apartment) to someone else, in a rental agreement. It does prohibit taking a fee for lending money, and therefore interest on a loan is considered Gezel, while payment for a rental is not.

2. Since the Torah does not curtail one's rights to take interest on loans to Nochrim, taking interest does not constitute Gezel. (RAV AVRAHAM DOV AUERBACH, Rav of Tiberias)

3. Even though the borrower willingly pays the interest, the Torah prohibits the lender from receiving it, and since the Torah prohibits it, it constitutes Gezel.

(b) RAV SHALOM GELBER in NESIVOS SHALOM (Hilchos Ribis, p. 35) explains the difference between renting out objects for a fee and taking interest on loans is as follows. When one rents out an object, the use of that object is a form of consumption of the fruits of that object, as one benefits from the use of the object itself. In return for those "fruits," the borrower pays a fee. In contrast, in the case of a loan, the fee -- or interest -- is paid not in return for a benefit realized, but in order to compensate the lender for the loss that he is suffering by not being able to profit from the money that he has lent out. The borrower's benefit from using the money comes from his own business ventures for which he uses the money, and it does not come inherently from the money itself.

1. This explains why it is prohibited to take interest on a loan, but it is permitted to receive a fee for renting out an object. The rental fee is a payment for the benefit realized from the object itself. Interest is compensation for the lender not having the money in his possession with which to profit.

2. Jews are commanded to perform Chesed towards one another with their bodies, time, and money -- "v'Chai Achicha Imach" (Vayikra 25:36). Thus, they are obligated to perform Chesed even if it means forfeiting the profits which they would have made had they used their time for business and not for Chesed. Likewise, they are obligated to forfeit the profits which they would have made had they used their *money* for business and not for Chesed (such as lending to their brothers when in need). Taking interest for that passive loss is therefore considered an unjust gain -- Gezel.

In contrast, a Jew is not obligated to sacrifice his time or money for the welfare of a Nochri, and therefore money received as interest from a Nochri, to compensate for profits not gained as a result of lending money, is not considered unjust gain.

3. Since a Jew is obligated to give up his time and money in order to help another Jew, taking money in return for giving such help is considered theft, regardless of whether the recipient agrees to pay interest. (This is similar to answer (a) above.)

(c) RAV MOSHE FEINSTEIN zt'l in DIBROS MOSHE (56:5) writes that the concept of Gezel mentioned in our Sugya does not refer to the standard form of Ribis. He points out that it is Rava who says that Ribis involves Gezel. It is Rava, though, who holds of the view of Rebbi Yochanan (61b) that money paid in violation of the Torah prohibition of Ribis cannot be retrieved by Beis Din. Accordingly, Ribis cannot be actual Gezel, if Beis Din cannot force the lender to give it back. Rather, when Rava says that Ribis involves Gezel, he is referring to a situation in which the lender is taking interest from the borrower forcefully, against his will.

Rav Moshe zt'l finds proof for this assertion in the words of the HAGAHOS HA'GRA (Shulchan Aruch YD 161:10) who writes that even according to Rebbi Yochanan who maintains that normal Ribis is not considered Gezel, if the Ribis was taken forcefully, it *is* considered Gezel. (M. Weiner)

The Gemara concludes that in truth the prohibition of Gezel could have been derived from the prohibitions of Ribis and Ona'ah (through a Tzad ha'Shaveh). The Gemara makes it clear that the prohibition of Ribis stems from the concept of Gezel. There are, however, other ways of understanding the nature of Ribis.

(a) The RAMBAN (Devarim 23:20-21) explains that the Isur of Ribis is based on the Torah's dictum that a Jew must do Chesed for his fellow Jew. He proves this from the fact that the verse that prohibits taking interest concludes with a blessing, "... so that Hashem your G-d will bless you in all of your endeavors..." (Devarim 23:21), just as it concludes the Mitzvah of Tzedakah with a blessing, "... for in return fort his matter, Hashem your G-d will bless you in all of your deeds and in all of your endeavors" (Devarim 15:10).

(b) RAV SAMSON RAPHAEL HIRSCH zt'l (in his commentary to Devarim 23:20) writes that the nature of the Isur of Ribis is to show that Hashem is the Master and Owner of all properties (this is similar to the nature of the Mitzvah of Shabbos and the Mitzvah of Shemitah, as Rav Hirsch explains). This is expressed by restricting the lender from taking interest on what he considers to be his own money. By restricting him from taking interest, the Torah reminds him that the world and everything in it is Hashem's (cf. Tehilim 24:1).

(c) The KLI YAKAR (Vayikra 25:36) explains that the nature of the Isur of Ribis is a reinforcement of the Midah of Bitachon, trust in Hashem. He writes that lending with interest is a no-risk source of income, and thus the one who lends with interest is prone to lose his trust in Hashem that it is Hashem Who provides man with his livelihood. The profits of other businessmen, in contrast, are not assured and are not risk-free, and thus they maintain their Bitachon in Hashem. (M. Weiner)

61b

The Gemara derives from the verse of "Lo Tignovu" (Vayikra 19:11) that the Torah prohibits stealing even when one steals merely to aggravate the victim, or when one steals with intent to pay Kefel to the victim (such as when the thief wants to give a gift to his friend, but he knows that his friend will not accept a gift).

Why does the Gemara need a special source in the Torah to teach that it is prohibited to steal with intent to aggravate the victim? Such stealing still has criminal intent, so why would we have thought that it should be permitted?

ANSWERS:

(b) The RITVA answers (in his second approach) that the Gemara is referring to one who steals with intent to return the stolen object (after causing anguish to the victim). We might have thought that such stealing is not included in the Isur, since the thief does not intend to keep the item that he steals but intends on returning it.

(b) The Ritva (in his first approach) explains that without a special source to teach that stealing with such intent is Asur, we might have thought that it is not included in the Isur of stealing since the thief -- who is not stealing the item because he wants it for himself -- derives no personal pleasure from the item.

If, however, the thief stole it with intention to return it, then indeed he has no transgressed the Isur of stealing.

RAV MOSHE FEINSTEIN zt'l (in DIBROS MOSHE, He'oros, p. 427) questions this approach. First, how is it possible to suggest that a thief who steals an object with intention to return it has not transgressed the Isur of stealing? If, as the Gemara here says, that it is Asur to steal with intention to pay Kefel, then it should also be Asur to steal with intention to pay back the object itself! Second, why would we have thought that deriving pleasure from the stolen item is a condition for transgressing the Isur of stealing? The very act of taking someone else's property without permission is what defines the act of stealing, and not whether the thief derives benefit from the stolen object!

Rav Moshe zt'l rules in accordance with the Ritva's second approach, that the Isur of stealing applies even when one steals with intention to return the stolen object, as he proves this from the words of the RAMBAM (Hilchos Geneivah 1:2) and the TUR (CM 348:9). (M. Weiner)

QUESTION: Rebbi Elazar and Rebbi Yochanan argue whether money paid as interest in a case of Ribis d'Oraisa ("Ribis Ketzutzah") is retrievable in Beis Din. Rebbi Elazar says that Beis Din can force the lender to return the money, while Rebbi Yochanan says that Beis Din cannot force the lender to return the money.

RASHI (DH Ad Kahn Ribis Ketzutzah) writes that according to the opinion that the Ribis is retrievable, Beis Din will force the lender to give it back when the borrower demands it from him during his lifetime (this is how the TAZ (CM 161:3) rules).

Why, though, should Beis Din wait until the borrower demands the Ribis back? According to the opinion that the Ribis must be returned, it is because the Torah says, "v'Chei Achicha Imach" -- "and your brother shall live with you" (Vayikra 25:36), meaning that the lender must give back the Ribis so that his fellow Jew can live. We know that Beis Din is empowered to enforce all Mitzvos Aseh. Why, then, should this Mitzvas Aseh of returning interest taken for a loan be different, such that Beis Din cannot enforce it until the borrower makes a claim in court?

Second, the Gemara in Bava Kama (94b) clearly implies that one must return Ribis even without the borrower demanding it. Why, then, does Rashi say that only when the borrower demands it must it be returned? (KETZOS HA'CHOSHEN)

ANSWERS:

(a) The KNESES HA'GEDOLAH and the KETZOS HA'CHOSHEN suggest that Rashi is not describing the Halachah and saying that Ribis must be returned only when the borrower demands it, but rather he is describing the normal situation; usually, the borrower demands his money back right away.

(b) The CHASAM SOFER here understands Rashi to be making a Halachic qualification to the law that Ribis must be returned. (He does not understand the words of Rashi literally, though, as the Taz understands them.) He explains that Rashi mentions that the Ribis must be returned when the borrower demands it only because Rashi is explaining the view of this particular Amora, Rava. Rava (as Tosfos proves) is of the opinion that Ribis *cannot* be retrieved in Beis Din ("Ribis Ketzutzah Eino Yotzei b'Dayanim"), and therefore the only situation in which Beis Din will retrieve the Ribis is one in which the borrower demands it back. The reason why Beis Din retrieves it when the borrower makes a claim for it is because of Rava's opinion elsewhere (Temurah 3b), where Rava says that "Iy Avid Lo Mehani" -- if a person does something which the Torah prohibits, his act is ineffective (and thus the money that he took as interest does not legally become his, and thus the borrower can claim it in Beis Din). (M. Weiner)