Vol 37.12 - Behar Spanish French Audio Video
(5750) Rambam (Hil Avadim 9:8 end, and conclusion of Sefer Kinyan): "It is permissible to have a Canaanite slave perform excruciating labor.Although this is the law, the attribute of piety and the way of wisdom is for a person to be merciful etc." Two aspects: attribute of piety and the way of wisdom.
The debate in the words of Rambam that "practice of the Sages of the first generations who would give their slaves from every dish of which they themselves would partake. And they would provide food for their animals and slaves before partaking of their own meals".
The lengthiness of Rambam's comment at the conclusion of the Halacha concerning the attribute of mercy of the descendants of Abraham our patriarch and the differences to his wording in Hilchot Teshuvah (ibid 2:10), Hilchot Issurei Biah (19:17) and Hil Matanot Aniyim (10:1,2)
It is written in our Parsha: “If your brother becomes destitute etc. you shall support him [whether] a convert or a resident, so that he can live with you. You shall not take from him interest or increase, etc.”
The sages explain in the Talmud that the wording: “You shall not take from him interest or increase” applies only to “Your brother (i.e. a fellow Jew) and not to a “convert or a resident”
[Which is why it states: “You shall not take from him” in the singular tense and not “You shall not take from them: in the plural tense]
And the words: “convert or a resident” just mean the aspect of: “so that he can live with you"”- “that you are commanded to sustain him” but not the aspect of: “You shall not take from him interest or increase”
“One may lend money to and borrow money from a gentile and a resident alien at interest . .Offering - and taking - interest from "your brother" is prohibited; from people at large, by contrast, it is permitted. It is a positive mitzvah to lend money to a gentile at interest, as it states: "You may offer interest to a gentile." The Oral Tradition teaches that this is a positive commandment”
In other words there are three laws in lending with interest:
That which Torah permitted taking interest from a gentile (and a resident alien) –
even though it is “forbidden steal anything, by Torah law, whether it be a Jew or a gentile” and also: “It is forbidden (by Biblical command) to cheat people in business . . whether it be a Jew or a gentile, equally in this law (regard)”
is because it is understood that interest is different from theft and increase (inflating prices).
And as it is cited in the Talmud:
(where even for a Jew we do not find that it is possible to learn the prohibition from taking interest from the prohibition of theft and increase, because)
“just as those (theft and increase) lack the [the victim's] consent (da’at):
[increase - because he is unaware (of the inflated price), and theft – because it is taken against his will)
“will you say [[the same] of interest, which is [given] with his [the debtor's] consent? “
And since interest is different from theft and increase,
where the taking of the interest money is with the “consent” of the of the borrower,
it makes sense that the Torah only forbade taking interest (which is less severe than theft and increase) from “your brother” and not from a gentile (and a resident alien)
However the statement: “It is a positive mitzvah to lend money to a gentile at interest” requires explanation.
Even though the borrower is giving the interest with his consent and from his free will – the Torah still calls it “neshech” (literally meaning bite). And at the end of it all, “all of them (theft, increase and interest) cause a loss of money that is deprived from his fellow”
Therefore what is the reason that we were commanded to deprive money from a gentile though interest?
2. This could be understood by explaining the debate of the codifiers whether one can forego interest (mechila b’ribis):
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”
Since “whenever interest is given, the borrower is waiving his rights and the Torah forbade this waiver)
“if however, the lender (already) collected from him (the borrower) the interest,
and is obligated to return it to him (the borrower)
the borrower may (waive the obligation to return the interest) and exempt the lender, just as a person may waive the return of a stolen article”.
The reason of the Gaonim that one may never waive the interest, even after the borrower gave it to the lender with his consent
[Even though this innovation that: “the Torah forbade this waiver” only applies, seemingly, to a case where the borrower (initially) waives his rights and consents to give the interest (to the lender)
Yet, we do not find that the Torah forbade the borrower’s foregoing, after the interest has been given]
is explained by the Ritva. He writes:
“The claim of interest is not like other claims of theft and increase etc.., where one has a monetary lien ("shibud") on his friend, yet it is an obligation that the Torah obligated to return the money that was usurped . . . for this is an obligation that was placed on him by the Torah. And this is like a debt according to the opinion that payment of a debtor is a Mitzvah and not an obligation by Torah (Shibud lav d'Oraisa).
However, there (regarding theft etc.) it is a case of monetary law (din mamon) to one’s fellow and waiving rights apply.
But here (interest) the obligation is to G-d (Shamayim). Therefore waiving rights to one’s fellow does not help.”
The Gaonim’s rationale
In other words, the intent of the Gaonim in proving that: “whenever interest is given, the borrower is waiving his rights etc.” is:
Since “whenever interest is given, the borrower is waiving his rights” but “the Torah does not accept this waiver and forbids it”, this proves that the prohibition of taking interest and the obligation to return it is not a “monetary dispute (din mamon) that one is obligated to his fellow”
(since the borrower waived the interest)
But rather it is an aspect and prohibition that the Torah placed on the lender, on par with (or in the category of) a “Mitzvah and obligation to G-d”
(And in the obligation of returning it to the borrower, (the lender) is obligated (meshubad) to G-d)
Therefore, “waiving rights does not help with interest”, even after the lender received it. Because he (the lender) has not fulfilled his obligation to G-d until he returns the “money that he usurped” (Issur Sh’bala’a).
The Rosh’s rationale
3. Accordingly, one must say that the reasoning of the Rosh (and the Tur and Shulchan Aruch) who hold that the borrower may waive the lender’s obligation to return the interest (after it was received by the lender) is:
Even though the obligation to return the interest is an obligation that the Torah placed on him, and is not because of an obligation of debt (Shibud mammon) (as the Ritva explains there). Nevertheless, this obligation that the Torah placed on him is not an “obligation is to G-d (Shamayim)”. But rather it is an obligation that the Torah placed on the person to return the money that he took (chisar) from his fellow illegally. In other words, he was obligated (because of this Mitzvah) with an obligation to his fellow – therefore, he may waive his rights.
This is explained in the aforementioned words of the Ritva (according to the opinion of the Gaonim):
The (reason) that the aspect of the returning of the interest comes from an obligation that the Torah obligated him
and not obligation of debt (Shibud mammon)
is that it is “like the (aspect) that the payment of debt (ba’al Chov) is a Mitzvah”
However that Ritva differentiates (according to the opinion of the Gaonim) between the payment of debt and the return of interest.
However, the opinion of the Rosh is that the aspect of the Mitzvah of returning the interest also includes that the Torah obligated him to return the money that he took from his fellow and that it is not in the realm of an “obligation is to G-d “
We thus find that according to both their views (the view of the Gaonim and the view of the Rosh (and the Tur and Shulchan Aruch), the money of interest is considered the money of the lender and that he does not have the obligation to return it from the standpoint of monetary law (din mamon) alone, but rather due to the Torah obligating him (to return it)
4. Accordingly one could explain that, in its essential aspect (pnimiyut), there is a particular (aspect) to the law of returning interest:
If one lends with interest and wishes to repent and return the interest, we do not accept it from him. Yet even though we do not accept it from him, he is required to return it in order to fulfill the Torah’s obligation. Nevertheless, it is midas chassidus (a righteous practice) not to accept it from him.
The explanation is:
The Sages state that: “The Torah holds dear the money of Israel. ('Torah chasa al mamon Yisroel). And the reason for this is:
It is a ruling of law that “All one’s deeds should be for the sake of Heaven” and “In all ways you should know Him” – Therefore since this is his money, he must fulfill this ruling even with all his money, And in the words of Rambam: “One’s heart should not just be to amass money but etc.”
In the style of Torat HaChassidut – (the reason is because) in the money of a Yisroel there are “holy sparks that are connected to the root of his soul” (Note: All the possessions that a Jew has, is because they are connected to his soul and need to be elevated)
And since G-d fashioned His world in this manner and order, namely, that one could profit through lending money with interest. And even more so that: “(The general principle of increase is:) All payment for waiting for one's money is forbidden.”, rationale dictates that – it is understood - that even the sparks that are within the interest, have a certain connection to his soul, Yet since Torah forbade interest, he may not refine (l’varar) those sparks and his Avodah with them must be in a manner of rejecting them (dechiyah) (just as with all forbidden things)
However, once the lender has already taken the interest and has absorbed it into his own funds, and he has no obligation to return it, according to monetary law alone, but just because of the obligation that the Torah placed upon him (as above) –
Even though he transgressed this prohibition and is required to return the interest, nevertheless, any possible way that would allow him not to return it-
(Nevertheless) we must endeavor to allow him to keep the interest since the sparks therein are connected to the root of his soul.
And this is the inner (pnimi) reason that it is righteous conduct (midas chassidus) not to take back the interest from one who wishes to (repent by) fulfilling the sake of Heaven. Because the sparks in the funds of the interest are connected to the soul of the lender.
5. According to all the aforementioned, one could also explain the reason that we are commanded to take interest from a gentile –
even though it is forbidden to cause him to lose money through theft and increase –
For the sparks in the funds of the interest of a gentile who lends from a Yisroel, are connected to the lender, And he (the lender) must refine the sparks from the realm of impurity (Klipah) and elevate them to holiness.
According to this, one can also understand why some say that it is a Mitzvah to: ”take interest from a gentile”. For it is (not just accepting the interest from him, but it is) a Mitzvah to lend to a gentile, (precisely) to obtain the interest from him.
For since the gentile (is in a situation where he) needs a Yisroel (specifically) to lend him the money, this proves that the sparks that are within the money of the gentile are connected to the Yisroel, Therefore it is a Mitzvah to lend him money in order to obtain the interest, which is in order to refine those sparks to holiness.
M’Sichas Shabbat Parshat Mishpatim 5723
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