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Bava Metzia, 70

1) LENDING THE MONEY OF ORPHANS WITH INTEREST

QUESTION: Rav Anan in the name of Shmuel ruled that the overseer of the estate of orphans may lend the money of orphans with interest. Rav Nachman objected on the grounds that we do not "feed something forbidden" to them, referring to money earned as interest. Rav Nachman then asked Rav Anan for the details of the case in which Rav Anan stated Shmuel's ruling, and it was discovered that the case in which Shmuel ruled leniently was not a case of absolute interest. Shmuel had permitted the orphans to receive rent money for their kettle *and* to take money for the loss of copper caused by normal use of the kettle. Normally, it is forbidden to charge rent for the use of an object and to make the renter pay for the object's depreciation, because since the renter must return the exact value of the object that he rented, it is considered like a loan, and the rental payment is considered Ribis. Nevertheless, in the case of the kettle, Rav Nachman pointed out that it was permitted and did not involve Ribis, because the owner (i.e. the orphans) of the kettle still must suffer a loss due to the remaining copper that has deteriorated.

The Gemara then concludes in the name of Rav Chisda (or Rav Sheshes) that it is permitted for the money of orphans to be lent with interest (where it would normally be forbidden for anyone else to do so) in a case is where the money is lent "Karov Lischar v'Rachok l'Hefsed," i.e. where the money is being invested but the manager of the money will be responsible for any loss to the money while the orphans will still receive their share of the profit. RASHI here writes that this form of Ribis is only prohibited mid'Rabanan, and in the case of the money of orphans the Chachamim were lenient and did not prohibit it in order to preserve the assets of the orphans.

Rashi implies that when Rav Anan originally said in the name of Shmuel that it is permitted to lend the money of orphans with interest, he was referring even to Ribis d'Oraisa ("Ribis Ketzutzah"). How, though, could Rav Anan have entertained the possibility that it is permitted to do an Isur d'Oraisa with the orphans' money?

ANSWER: The RASHBA explains that (according to Rashi's opinion) when the overseer lends the money of the orphans with Ribis, he is not transgressing an Isur d'Oraisa himself, because the money is not his and he is merely the Shali'ach of the orphans. The orphans themselves are not transgressing, because they are not obligated to observe the Mitzvos, since they are minors. Even though it is prohibited for us to feed an Isur to minors, this applies only when the Katan himself is involved in the act of the Isur (such as when we feed him food that is not Kosher). Here, though, the Ketanim are not doing any act at all, and therefore Rav Anan understood that the prohibition against feeding an Isur to a Katan does not apply.

The Rashba points out that even Rav Nachman, who rejected Rav Anan's statement based on the ruling that we may not feed an Isur to a Katan, agreed that it is not prohibited *mid'Oraisa* to give the orphans money earned as interest, but rather he was arguing that it is not something that the Chachamim would have permitted due to the grave risks of Divine retribution involved with lending with interest.

Still, though, why did Rav Anan permit the one who *borrowed* the money of orphans to pay back with interest? We know that the Isur of Ribis applies not only to the lender, but also to the borrower! TOSFOS (DH Ma'os, in his second answer) explains that there is no Isur of Ribis for the borrower when the *lender* does not transgress any Isur. In the case of the orphans, since the orphans are minors they are not commanded to refrain from lending with Ribis, and thus the borrower does not transgress when he pays interest. Accordingly, Rav Anan ruled that the money of the orphans may be lent with interest and he was not concerned that the borrower would be transgressing the Isur.

OPINIONS: The Gemara concludes with a situation in which it is permitted for the money of orphans to be lent with interest. That case is where the money is lent "Karov l'Sachar v'Rachok l'Hefsed," where the money is being invested but the manager of the money will be responsible for any loss to the money, while the orphans will still receive their share of the profit. RASHI here writes that this form of Ribis is only prohibited mid'Rabanan ("Avak Ribis"), and in the case of the money of orphans the Chachamim were lenient and did not prohibit it in order to preserve the assets of the orphans. This indeed is the ruling of the Shulchan Aruch (YD 160:18) who writes, "Any Ribis d'Rabanan is permitted with the money of orphans, with money consecrated for poor people or for Talmud Torah or for the need of a synagogue."

The wording of the Shulchan Aruch implies that all forms of Ribis d'Rabanan are permitted with the money of orphans. Our Gemara, however, mentions only that Ribis in the form of "Karov l'Sachar v'Rachok l'Hefsed" is permitted. Indeed, whether or not other forms of Ribis d'Rabanan are permitted is the subject of a Machlokes Rishonim.

(a) The RAMBAM (Hilchos Malveh v'Loveh 4:14) writes that all forms of Ribis d'Rabanan are permitted with the money of orphans. This is also the view of the RAN and NIMUKEI YOSEF in the name of the GE'ONIM, and the RASHBA and ROSH.

(b) The RITVA writes that all other forms of Ribis d'Rabanan are *prohibited*, and the Chachamim permitted only "Karov l'Sachar v'Rachok l'Hefsed." He proves this from the fact that the Gemara does not say that "Avak Ribis is permitted with the money of orphans," but it says that specifically "Karov l'Sachar v'Rachok l'Hefsed" is permitted. (The Ritva goes on to explain the difference between this and all other types of Avak Ribis.)

Similarly, the TESHUVOS HA'RASHBA (cited by the Beis Yosef) is in doubt whether all types of Ribis d'Rabanan are permitted, or only "Karov l'Sachar v'Rachok l'Hefsed." He mentions that perhaps only this type is permitted, because it does not look so much like Ribis, but rather it looks like the money of the orphans is deposited for safekeeping with someone. When the money is returned to them (with the profit that accrued), it does not look like a borrower is paying extra in return for a loan, but rather it merely looks like the money manager is returning the orphans' own money to them. Because of this doubt, the Rashba there writes that it is preferable to be stringent (and not to permit any other type of Avak Ribis with the money of orphans; this is in contrast with the way he rules in Chidushim here that all Avak Ribis is permitted with the money of orphans).

70b

OPINIONS: The Mishnah states that one may not accept "Tzon Barzel" assets from another Jew. Since, in a "Tzon Barzel" agreement, the recipient who manages the money is responsible to compensate the owner for any decrease in value of his assets, the money (or assets) that he received from the owner is considered a loan, and any profits that the recipient makes and gives to the owner is like interest being paid for the loan. The Gemara explains that if the owner of the assets accepts upon himself responsibility for any Ones or depreciation ("Onsa v'Zola") that might occur to his money, then the transaction is permitted and there is no Ribis involved. This is how the RAMBAM (Hilchos Malveh v'Loveh 8:12) rules, as well as the SHULCHAN ARUCH (177:1). They write that if the owner of the property accepted upon himself responsibility for the depreciation or loss of the property, then the property is considered to be in his possession (and it is not a loan, but a deposit) and the transaction is permitted.

The Gemara, and the Rishonim, mention two elements of liability that the owner might accept upon himself -- the loss of the assets (such as through an Ones), and the depreciation in their value. Is it necessary for him to accept both upon himself, or does it suffice to accept only one?

(a) The VILNA GA'ON (in Bi'ur ha'Gra to the Shulchan Aruch there) maintains that the owner must accept both in order for the transaction not to be considered a loan and not involve Ribis. He infers this from the text of the Gemara in which Abaye differentiates between the case of our Mishnah and the case of the Mishnah in Bechoros by saying that the Mishnah in Bechoros is referring to when the owner "accepted upon himself any *Ones and depreciation*." Similarly, in the rest of the Sugya, "Ones and depreciation" are mentioned together, implying that the owner must accept both in order for the transaction to be permitted. (See Tosfos 70a DH d'Ka)

(b) The MACHANEH EFRAIM (Hilchos Malveh v'Loveh 32) maintains that the Rambam himself is of the opinion that it suffices to accept responsibility for only *one* of the risks -- *either* Ones *or* depreciation. The Machaneh Efraim writes that the Rambam inferred this from the Gemara earlier (69b) that discusses the case of a boat that was rented out, and he learns like Rashi who writes that it is permitted for the renter to accept upon himself liability for Ones if the owner accepts upon himself responsibility for depreciation, and this allowance applies even for Kelim that are not subject to deterioration (that is, not like the case of the copper kettle that deteriorates). Rashi holds that the owner's responsibility for depreciation alone suffices to make the transaction not a loan but a deposit.