Question

I am a contract lawyer who prepares contracts for companies to use when dealing with their customers. Often my clients are Jewish companies and some of the customers with whom they will use these contracts are Jews. I was recently given a job to prepare a contract template for a company that sells goods and wants to include in the template a clause that if their customer is late in making a payment they can charge him interest. I should note that generally the company does not charge interest. They just want to be able to do so if they wish. It is important to note further that I just prepare a general contract and the company will deal with the client directly, but they will use the general contract which I prepared for them to make a specific contract. Am I allowed to prepare the template or must I turn down this job?

Answer

There are three possible prohibitions that you might violate: two are Torah prohibitions and one is a rabbinic prohibition. The two Torah violations are lifnei iveir and lo sesimun. The rabbinic prohibition is known as mesayei’a le’ovrei aveiroh. We must consider whether any of these prohibitions applies in your situation.

Let us explain the first issue: lifnei iveir. One is not allowed to act in a manner that will enable someone to violate a prohibition. For example, the Gemoro (Avodo Zoro 6B) writes that it is forbidden for a Jew to hand a cup of wine to a nozir since by handing the wine to him he is enabling the nozir to drink the wine-a Torah violation for him. We know that a scribe who writes a contract for interest does violate the prohibition of lifnei iveir, as explicitly written by the Tosafos Yom Tov B.M. 6, 11. Perhaps similarly, by preparing the template you are enabling the company to charge interest from their clients.

It would seem however, that you do not need to be concerned with lifnei iveir because the Gemara (ibid) writes that the prohibition applies only to an action that is essential to the aveiroh. For example, in the case of the nozir, if the nozir could have picked up the wine without any assistance, one who handed him the wine does not violate this prohibition.

In your situation, there are two reasons that your action may not be essential. Tosafos (Bovo Metsiyo 75B) writes that if the parties would consummate the deal even without your document you do not violate lifnei iveir because the violation would have taken place even without the document you prepared.  The second reason your action may not be essential is that there are other lawyers who could prepare the document. There is an important dispute (See Mishna Lamelech Malveh Veloveh 4, 2) if the only lawyers who could prepare the document are Jews who are equally forbidden to prepare the document. However, in your case, since there are non-Jewish lawyers who could prepare the document, according to all opinions you will not violate the Torah prohibition of lifnei iveir.

The second Torah prohibition is lo sesimun. The nature of this prohibition is that all those who are involved in creating an interest-bearing loan violate the prohibition of placing an interest-bearing liability on the borrower. The Mishna (Bovo Metsiyo 75B) records that the lender himself, any cosigner, and all the witnesses violate this prohibition. The Mishna records a dispute whether the scribe who writes the interest-bearing contract violates this prohibition. The Rambam (Malveh Veloveh 4, 2) rules that the scribe violates this prohibition and even though the Shulchan Aruch (160, 1) does not mention this, the Shach (160, 1) does mention this prohibition.  Thus, the Iggros Moshe (Choshen Mishpot 1, 93) paskens that it is prohibited to prepare interest-bearing loan documents.

However, there are several points to consider. First, your question concerns writing a document for a company that wishes to have the ability to charge interest to a customer who buys and then pays late. When one charges interest to a purchaser who does not pay on time, he only violates a rabbinic prohibition since the Torah prohibition of ribbis applies only to a loan and not to a sale. Many Rishonim prove that the borrower does not violate a prohibition where the ribbis violation is only rabbinic.

The Chavos Da’as (160, 1) is uncertain whether the witnesses violate a prohibition in cases where the ribbis is only rabbinic. The reason for his doubt is because perhaps only the borrower, whose prohibition is derived from lo sashich, is free from rabbinic violations, but a witness who violates lo sesimun is perhaps not free. In the end, he rules leniently. Since a scribe also only violates lo sesimun we can infer that the Chavos Da’as maintains that there is no prohibition on one who writes contracts which only violate rabbinic prohibitions. Thus according to the Chavos Da’as you have no problem.

However, it is difficult to rely on this ruling of the Chavos Da’as because his proof can easily be rebuffed and there are many (see Divrei Sofrim 160, 8 and Eimek Dovor 38: Nesivos Shalom 160, 1, 9) poskim who disagree  with the Chavos Da’as. Furthermore, various Rishonim (Tosafos, the Ramban and Rashbo on B.M. 72A) give reasons why witnesses don’t become disqualified if they signed a shtar which violated a Rabbinic prohibition of ribbis. This implies that their position is that the witnesses do violate lo sesimun since, if the witnesses did not violate the prohibition of lo sesimun, there is no reason to even consider disqualifying the witnesses. Thus these Rishonim do not agree with the principle of the Chavos Da’as.

Moreover, the Nesivos Shalom (160, 1, 11) rules that in a case like yours there is no violation of lo sesimun. He writes that modern poskim are undecided whether the scribe and witnesses violate the prohibition of lo sesimun if they prepare a loan document which states that there will be interest if the borrower fails to pay on time. The reason is that since at the time the loan is extended there may not be any interest, some rule that there is no prohibition of lo sesimun. However, the Nesivos Shalom writes that all agree that one does not violate the prohibition of lo sesimun if one only makes an agreement that in case there will ever be a loan then there will be interest, even if the interest is certain if there is a loan.

This is an explicit ruling of the Avnei Nezer (Yoreh Deah 144) who writes that since the violation is on “placing” interest, one only violates the prohibition if there exists a loan upon which one is involved in placing the interest. But if one only does something which only might eventually be used to place ribbis, he is not in violation of lo sesimun.

This is your situation since people who pay for their purchases on time will never be involved in a loan. It is only if they pay late that they will be effectively taking a loan. In your case it is even better because even if a person pays late, the seller might not ask for interest and you state that it is rare that they in fact do so.

Therefore, you will not violate lo sesimun when preparing the contract. We should note further that your situation is even more lenient because you are only preparing a general template and not a document for use by a specific Jewish customer.

Finally, we have to consider the rabbinic prohibition to help someone violate a prohibition (mesayei’a le’ovrei aveiroh). There are several reasons why one can be lenient on this matter in your case. One reason is a ruling of the Pri Megadim (Eishel 163, 2) that the prohibition against helping a Jew violate a prohibition is only with regard to Torah prohibitions. Thus, if the ribbis is only rabbinic, like in your case, the Pri Megadim rules that here is no prohibition.

Furthermore, there is a responsa of the Maharsham (6, 11) that one only violates the prohibition of assisting someone to violate a prohibition if he helps the violator with his body  or monetarily. However, for example, one who sells something to a violator is not guilty of assisting the violator. Since you only prepare the documents for someone else’s use, you are not classified as assisting him to violate an issur.

In conclusion: A lawyer may prepare a template which could possibly be used to write a contract to impose interest on a tardy customer.

 

 

 

 

 

 

 

 

 

 

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