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Parasha Behar: Leviticus 25:01-26:02
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Two Budweiser Frogs were visiting
There was no reply. Yakov waited a few moments are tried again. "Ribbit?"
But again there was silence. Yakov, frustrated, puffed out his big bullfrog chest and bellowed "RIBBIT!"
Rivka coolly replied, "I'm not INTERESTed."
Ribbit is the Hebrew word for interest – the monetary kind. "If your brother becomes impoverished...you shall strengthen him - stranger or resident - so that he can live with you. Do not take from him interest and increase. Do not give him your money for interest, and do not give your food for increase." (Lev 25:35-37).
These same commandments are echoed in Deuteronomy 23:20-21 with a twist. "You shall not cause your brother to take interest, interest of money or interest of food, interest of anything that he may take as interest. You may cause a gentile to take interest, but you may not cause your brother to take interest."
Ribbit is the lending of money for interest. A Jew is not allowed to charge interest. This prohibition not only extends to monetary loans, but also to transactions involving barter or delayed payments. No one is to derive a financial benefit by waiting to receive payment or property. A Jew is not allowed to pay interest either. The Talmudic rabbis actually forbade certain transactions because they had the appearance of interest, even though the law was not actually violated. These are called "ha'aramat ribbit."
The society promulgated by the Torah did not want to wait until someone became poor to help him. We are commanded to help one as soon as he begins to lose money. We are not to wait until he becomes poor. The Chazal (the rabbis of the Talmudic period of 500 C.E.) said, "Uphold him before he falls and becomes dependent of charity." Maimonides ruled that one of the highest forms of charity is to help another before he becomes destitute and has to ask for help. The Rambam said we could do this with free loans, investing in his business, offers of employment, or any other assistance. This mitzvah comes from the phrase "you shall strengthen him." Rashi offers the analogy of when we see a donkey beginning to lose its load, we are to rush in and help. If we wait until the load totally falls off the donkey's back, it will take five times the effort to correct the situation.
The Torah uses two words for interest and increase. The word "neshek" comes from the word "neshehkah," which means, "biting." The transaction bites into the borrower's wealth. The second word, ribbit, means to increase, as this is what happens to the lender's wealth. The Torah disallows both. But why in Leviticus do we see that the law applies to both Jew and non-Jew, but in Deuteronomy we see that Jews can charge non-Jews interest and conversely pay non-Jews interest? Did God change his mind? Or could it be that Deuteronomy was written at a later time, perhaps during the period of Ezra (circa 500 B.C.E.) after the return from
If we could borrow interest-free from a fellow Jew, why would we consider borrowing from a non-Jew? But on the other hand, if we could get interest from a non-Jew, why would we consider helping a Jew from who we could not make ribbit? Perhaps the answer is found in the next verse where we are taught that God will bless us in our undertakings. Is this saying that our willingness to forgo financial gain by borrowing and lending only from Jews is what God considers just?
Maimonides insists that taking interest from a non-Jew is a positive commandment. The Rambam wrote that this indeed would limit our interacting with them and hence limit intermarriage. He believed that if Jews gave gentiles interest-free loans, they would become grateful to us, socialize with us, and we would adopt their ways and marry their children.
The Talmud Bavli is replete with verses concerning ribbit. Chapter 5 of Tractate Bava Metziah is dedicated to the subject. Tractates Succah 29A and Temurah 6B list the punishments for lending or paying interest and actually compare lending with interest to murder. Interestingly, Tractate Makkot 24A says that while it is kosher to lend to a non-Jew with interest, there is value and goodness in lending to him without financial gain.
But there is another Torah verse often overlooked regarding this subject. In Exodus 22:24 we read, "When you lend money to My people, to the poor person who is with you, do not act toward him as a creditor and do not lay interest upon him." This law immediately follows the mitzvoth to take care of the stranger, widow, and orphan, Jew or non-Jew. Does "My people" (ah-me) mean Jews only or all of God's people are deserving of care when in need? It is obvious from the content of this paragraph that the authors of the Torah laws in Exodus and Leviticus prohibited all people in need from being charged interest.
Note that loans with prohibited interest had to do with helping the poor in an agrarian society. The idea of commercial loans was a city innovation. One took out a loan only in desperation during the time of the formation of our people. We were commanded not to take advantage of the poor. That is what interest to a poor person would be. It would be cruel to require a destitute person to pay interest when the loan itself would be difficult enough to pay back. This law also teaches us that we should trust that God is in absolute control over us and our possessions. The money that we lend is not our money at all. It is God's money and He has lent it to us. To loan without interest is to have the same faith in God when we do not work on Shabbat and when we do not plow in the Sabbatical (shemittah) year. These rules are also in this parasha in Lev. 25:4,11.
However, when some of us returned from the exile in
A parallel development was occurring in
As a historical note that you may find fascinating, Rabbi Raymond Scheindlin writes of the Judean authorities after Ezra. They built the
The Bible records how only a few Jews obeyed the Jubilee year rules. These rules, listed in Lev. 25:10-11, state that every 50 years, all deeds to land revert back to the original owner. This rule was altered as well with a loophole saying that it only applied when 100 percent of all the tribes lived in
Interest, Proverbs 23:32 says, is like the "bite of a snake that bursts and increases." Regardless of these economic matters, our goal as modern Jews is to always remember the Torah's principles of concession, good-heartedness, and performing ahavath chesed (deeds of loving kindness). Proverbs also says that the Torah's "ways are pleasant, and all her paths peaceful." (3:17). When we study Torah, Talmud, and Mishna we must never lose sight of this primary demand.
Chapter 5 of Talmud Bavli Tractate Bava Metzia begins by asking what the difference is between interest and increase. Daf 60B concludes that the words are synonymous with subtle differences between Torah interest and Talmudic interest. The major difference is that Torah interest is recoverable by going to court. The study of rabbinic interest, called the dust of ribbit, is fascinating. It is Talmudically not allowed for the borrower to do a favor for or to honor the lender. He cannot invite him over for dinner, get him an aliyah at the synagogue, or let him stay overnight rent-free in his home. These could all be construed to be ribbit. A seller cannot charge more for an object if one defers payment. Conversely one cannot charge less if one pays cash for an item on the barrelhead.
Insincere transactions are prohibited as well by the Talmud. For example, Moses lent money on the security of Aaron's field worth more than the loan. The contract said that if Aaron did not pay back the loan, Moses would own the field. At the time of the contract both Aaron and Moses knew that Aaron would not pay back the loan, and Moses would end up with the field, which was worth more than the loan. This increase would be illegal ribbit. The contract is based on the reliance that the condition of repayment will not be met. This fraud is called an "asmachta" from the Hebrew word for "reliance."
Here is where the Talmud begins to answer the question of the double standard of Jew and non-Jew vis-à-vis interest. Bava Metzia 70B quotes a sage from the Second Temple days who prohibited lending money to gentiles with interest even though the Torah in Deuteronomy 23:21 says it is all right. The reason is so that we would have no dealings with them and learn from their ways. Remember, non-Jews then were pagans and the term gentile did not mean Christian as we commonly use the term today. An exception was given to Torah scholars who would not, it was assumed, succumb to pagan ideas.
A rabbi from the Mishna period 200 C.E. ruled that the Torah law of loaning to a resident alien (ger) without interest was to be interpreted so that the ger would be treated the same as a gentile and charged interest. Why? Unlike Torah times when we lived with a mixed multitude of people in our midst in relative peace, in 200 C.E. Jews lived with pagan Roman conquerors who were both resident aliens and gentiles. But by the time the chapter ends we read in daf 75B that the more liberal rabbis of the Talmud period in 500 C.E. posited that the law of "before a blind man you shall not place a stumbling block" (Lev 19:14) clearly refers to all men. They go on to say that one should not cause another to sin.
Desperate people are like the blind. Since it is a sin to charge or pay interest, it would be a sin to lead a gentile into taking out a loan and paying interest. Therefore, they reason, it is best to neither charge nor pay interest to anyone, Jew or non-Jew.
We have seen how it is easy to interpret the Torah's rules to mean that one should help the poor of any people with interest-free loans and any way possible. We can see how the Torah was not speaking of commercial loans. However, since this was not stated specifically, an elaborate legal fiction had to be set up to allow Jews to engage in commerce as the world became modernized.
Before the modernity of the world abutted with Halakah (Jewish law), Jews struggled through the Middle Ages. Many anti-Jewish laws were devised to keep us from owning homes or property and from engaging in trades that required joining guilds. The Church had Canon law based on our Torah, which forbade Christians from charging interest. They called it usury, from the Latin word for use. Today the legal term usury means charging above the fixed interest rate. However at that time it simply meant charging interest. Christians could not charge interest to each other based on Canon law. The Church needed Jews to be their bankers because the Church interpreted Deuteronomy's verses to mean that Jews could lend to Christians. In 1179, Pope Alexander III issued a ban prohibiting all Christians from lending money with interest to anyone. He cited Luke 6:35: "Love your enemies, and do good, and lend, expecting nothing in return."
The Church ruled that this ban did not apply to Jews, as we were not "true believers." This is a biblical interpretation of acting as if the shoe is on the other foot. As noted in our discussion of the Jews of the Babylonian and Roman diasporas, Jews traveled from country to country buying and selling merchandise. Credit was unheard of and cash was the only means of payment. If a Jew needed money he could not get it from a Christian, as a Christian could not lend to him with interest. So Jews were forced to borrow from and lend to each other. But the Torah mitzvah of not collecting interest put the Jewish bankers at a disadvantage. The rabbis devised a legal fiction that gave Jews permission to break Torah laws to protect their financial livelihoods. Since financial livelihood affects one's life, they were allowed to break the laws of ribbit on the grounds that they were fulfilling the mitzvah of saving a life.
The Jews would lend their money from benches near cathedrals and churches in town squares. They could charge and collect interest as the rabbis ruled that this was a permissible venture (hetter iska). The Italian word for bench is "banco" and this is from where our English word "bank" is derived. The Church developed a legal fiction as well, because they taxed the Jewish moneylenders heavily. So while the Church was not collecting interest from their fellow Christians directly, they were doing so indirectly. Of course, as history shows, the Jews were blamed for extracting a "pound of flesh," as Shakespeare wrote about Shylock, the Jewish moneylender in his play, The Merchant of Venice.
The concept of a Jewish permissible venture was devised. This is called in Hebrew a hetter iska, which is, according to Professor Steven Resnicoff, Esq., "a unique contractual arrangement devised under Jewish law to circumvent the religious prohibition on the collection or payment of interest. It accomplishes this by substituting an investment scheme in lieu of a loan without meaningfully altering the parties' respective rights. Within the realm of Jewish law, this device for centuries has facilitated effectively consumer as well as commercial financing."
To explain the legal workings of this permissible venture would take pages and would read like a law text. It is recognized Halachically as a "shutfus," which is loosely translated as a partnership. Under Jewish law a person can invest in and share the profits of a shutfus without being personally liable for any loss. Moreover, one member of a shutfus is not necessarily authorized to bind another personally. Nor may one member of a shutfus be liable for acts of another. Therefore one can set up this dummy partnership, with A giving B money, B using the money with A having no say in its use and no liability for B's losses or mistakes. And yet A can sit back, not be involved, and be paid back his investment and a share of the profits. According to Jewish law, this money is neither principal nor interest.
What happens when Jewish law, which defends this legal fiction, collides against U.S. law, which despises, as did our Talmudic rabbis, contrived contracts (asmachta)? In the 1985 case of Bollag v. Dresdner, the court considered a case where the financier (lender) gave the recipient (borrower) $15,000 to be used for business purposes. Soon thereafter, the parties signed a Jewish permissible venture agreement stipulating the amount, the terms, and the conditions of the arrangement. The agreement stated that the recipient received $15,000 for a business investment from which the recipient would share his profit with the financier. The court concluded that substance, not form, controlled characterization of the venture, noting that, "a transaction must be considered in its totality and judged by its real character, rather than by the name, color, or form which the parties assign to it." It therefore ruled that the transaction was a loan with interest and not an investment.
In reaching its conclusion, the court took into consideration the financier's statement that he was not to share in any business losses of the recipient but that his investment was unconditionally guaranteed. In addition, the court heard a rabbi as an expert witness who said that Jewish permissible contracts were not loan agreements. The court concluded that these contracts are indeed loan agreements and that the rabbi and the financier were being disingenuous.
By calling loans partnerships, those who are trying to get around the mitzvoth of not charging and accepting interest are putting themselves in legal jeopardy. They are potentially breaking the laws of tax deductions, interest declaration, tax reporting, partnership frauds, bank fraud, revised uniform limited partnerships, as well as the Torah law of not stealing, lying, and swearing false oaths. This has caused some states, like New Jersey, to demand that all consumer contracts be drafted in language that may be understood plainly by the general public.
The biggest sin the users of these permissible ventures commit is breaking the mitzvah of chillul ha Shem (desecration of God's name, which we learned about in the previous d'var Torah) by making our people appear fraudulent by looking for loopholes to disobey our own civil and religious laws and cheat others.
The spirit of the Torah law is to help people in their time of need without abusing them. As spiritual Jews we have the benefit of being able to study and discern this. We can say without fear of rebuke or excommunication that we wish to set up free loan societies to help the poor of our community, while at the same time not having to engage in legal fictions to lend or borrow money for commercial uses. This is the mitzvah of "gemilut chesed." The law to extend chesed (kindness) as ordained by the Torah makes no distinction between friend and foe.
Exodus 23:04 tells us to return even our enemy's ox if we find it. We are supposed to help our enemy if his mule is overburdened. Talmud Bavli Tractate Bava Metzia 31A states that we are obliged to help him 100 times over. To not give a free loan to a non-Jew in need would be like bearing a grudge, which is also a sin. By performing legalistic routines to avoid mitzvoth we are missing out on the joy of Torah's spiritual teachings. When we are taught in Leviticus 25:35 to help the poor so he can live with us (umatatah yado imach), we are being taught that we are all connected as people. "Imach" means "together with you." When there are poor in our community it is not only bad for them, but bad for the society in general and us as individuals. When the Torah says "vehechezakta bo," the actual translation means you shall "strengthen in him," not "strengthen him."
Rabbi Yehoshua says in the Mishna Rabba Vayikra, "more than the rich does for the poor, the poor does for the rich." When all members of society are no longer poor, we all become richer.
When we are taught not to take interest so we can "let your brother live with you," we are being told that God wants harmony to exist. The lender who extracts interest hopes that the loan is extended as he earns money on each passing day. The lender wants to gain wealth so he can repay the loan quickly and save on interest. But when one is lent money with no interest, both have the same goals of a quick repayment due to financial recovery of the borrower. The Shulchan Aruk in its Halachic rules on ribbit (160:2) goes so far as to say that one who charges interest denies the Exodus from Egypt. These are some of the spiritual gems the Torah and Talmud and other texts are trying to teach us.
Talmud Bavli Tractate Shabbat 133B says, "Imitate God. As He is gracious and merciful, so you be gracious and merciful." If a poor person, Jew or non-Jew, needs help, do we break the commandment of not "standing idly by the blood of your neighbor" and not help the non-Jew as we would the Jew? Do we forget the spirit of the Torah and spend more time on legal fictions to lend to each other with interest on commercial loans, and ignore the plight of our fellow humans who need interest-free loans just to get back on their feet? Do we ignore Deuteronomy 15:7-8 where it says, "If there be a destitute person among you...you shall not harden your heart or close your hand. Rather, you shall open your hand to him, you shall lend him what he needs?" I think not.
Shabbat Shalom:
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