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Ki Seitsei-Shul lends money to a yeshiva and gets free minyan men

 

Question

The yeshiva next door to our shul needs money for renovations. The administration of the yeshiva turned to our shul for a short-term loan. Our shul has a difficult time getting a minyan for shacharis on weekdays. We told the administration of the yeshiva that we agree to grant the yeshiva the loan but on condition that the yeshiva try to send bochurim to daven shacharis in the shul until the loan is repaid. We note two important facts. One is that in spite of the shul’s need, the shul never paid and never will pay for people to daven in the shul. We just figured that if we can get this as a free side benefit, we might as well throw in this condition. Furthermore, no one will lose anything since the bochurim will not be paid by their yeshiva, so it won’t cost the yeshiva anything. Furthermore, there is not even any lost potential income to the yeshiva or to the bochurim since, like any other yeshiva, the bochurim are normally required to daven in the yeshiva, so the bochurim are not suffering any loss of potential income. The yeshiva also is not suffering a loss of potential income since yeshivas do not earn money by sending out their bochurim to serve as minyan men. Is our agreement permitted or is there a problem of interest?

Answer

The Gemoro (BM 70A) discusses how a guardian may invest money that belongs to orphans. The Gemoro’s main condition is that an investment must preserve and grow the capital of orphans. The Gemoro rules that beis din should find a highly-regarded individual and transfer to him the assets of the orphans to invest. The terms are that the orphans receive half of any profits, but the orphans have no share in any loss. The Gemoro asks that these terms violate the laws of ribis since an investor normally shares in the risk of an investment, in contrast to a loan where all the risk is borne by the borrower. The Gemoro answers that the rule that the risk must be shared to consider it an investment and not a loan is rabbinic and the Rabbonon waived their prohibition in order to ensure that the assets of the orphans are preserved.

There are two important extensions to what it says in the Gemoro. One extension is brought by the Rosh (BM 5, 50) in the name of the Geonim and ruled by the Rambam (Malveh 4, 14): just like the Rabbonon waived their prohibition to lend without risk in the interest of orphans, so too they waived the other prohibitions that they enacted if the beneficiary is an orphan. For example, in general one may not lend an object to be repaid in kind. However, an orphan is permitted to lend an object to be repaid in kind.

Even though it is not relevant to your question, it is important to clarify that according to many (including Mishne Lemelech Malveh 4, 14, R. Akiva Eiger and the Chavos Da’as (Chiddushim 160, 19)), there is one important rabbinic prohibition that is not waived for orphans. It is that one may not give delayed ribis to orphans. Thus, if one borrowed money from orphans, he may not give the orphans an additional amount after repaying his debt, if it is clear that the reason he is giving extra is due to the loan he received from the orphans. The reason for this is that the rabbis waived their prohibitions only to enable the orphans to preserve their capital by inserting clauses in contracts to enable them to avoid losses. However, delayed ribis cannot be inserted into a contract because then it would be ribis that is prohibited by the Torah (ribis ketsutso). Therefore, the rabbis did not waive this prohibition. Thus, these opinions maintain that one may not give a present to orphan lenders after repaying a loan if it is clear that the reason for the present is that the orphans lent him money.

The second extension, which is pertinent to your question, was ruled by the Rosh (res. 13, 8) whose opinion is authoritative. The extension is that all “mitzva money” has the same status as money that belongs to orphans. The Shulchan Aruch (160, 18) explicitly says that funds belonging to shuls have the same status as funds belonging to orphans.

Another important clarification that applies in your case is that even if the borrower is a tsedoko organization it is permitted to lend it money that otherwise would be prohibited as rabbinic ribis. (This ruling is brought by the Mishne Lemelech (ibid) in the name of the Maharit and is cited by R. Akiva Eiger in his notes on YD (160, 18).) Therefore, even though the borrower here is a yeshiva the shul is permitted to lend it money if the prohibition is only rabbinic.

Based on the above rulings we must determine if the benefit that you are asking the yeshiva to give you constitutes Torah-prohibited ribis in which case it is prohibited, or just rabbinic ribis which is permitted.

In order to understand the issue, we have to recall a ruling of the Gemoro (BM 60B). The Gemoro discusses the fact that the Torah uses two words to refer to interest: one is neshech-related to biting, causing a loss, and the other is marbis-receiving extra. Thus, there are two different but necessary criteria to determine if a transaction constitutes ribis: one is if the borrower is losing and one is if the lender gains. The Gemoro says that in order to constitute Torah-prohibited interest the arrangement must both cause a loss to the borrower and also a gain to the lender. However, if only one of these is present, the arrangement does not violate the Torah prohibition, and the prohibition is only rabbinic.

The Mishna (BM 64B) rules that a lender is not allowed to live in his borrower’s property unless he pays rent in full. The Gemoro further clarifies that this is true even if the borrower did not lose money because he never rents out the property and even if the lender did not have any monetary gain because he had another place to live and had no need to rent a property.

In your situation, your shul granted the loan to the yeshiva on the condition that the yeshiva send bochurim to join the shul’s shacharis minyan. You argued that it should be permitted because the yeshiva was not losing any money since they would not have otherwise sent their bochurim to daven for money, and also the shul had no monetary gain because it would not hire anyone to join their minyan. However, we see from the case of the lender living in the property of the borrower that even if the lender had no gain and the borrower had no loss, that does not permit such an arrangement. Thus, if the lender is not a shul certainly this arrangement would be forbidden as ribis. However, since we learned earlier that shuls have a dispensation if the arrangement is only rabbinically forbidden we must investigate if the prohibition is Biblical or rabbinic.

The opinion of the Ramban, which is cited by and agreed to by the Rosh (BM 5, 15), and is ruled by the Shulchan Aruch (TD 166, 2) is that if the property that the lender used would not have been rented otherwise and thus the borrower suffered no loss, the ribis prohibition is rabbinic. The source for this opinion is the previously cited Gemoro (BM 60B) that the Torah’s prohibition applies only if the borrower suffers a monetary loss. If we follow this opinion, your arrangement is permitted since as a shul you may lend if the ribis prohibition is only rabbinic.

However, the Beis Yosef deduces from the Rambam (Malveh 6, 2) that even if the property would not have been rented otherwise, the Torah forbids a lender to stipulate at the time he grants the loan that the loan is conditional on the borrower’s granting the lender the right to live on the property. He explains that the reason there is a Biblical prohibition is because the fact that the lender conditioned granting the loan on the right to live in the property created value for the property, which the borrower in effect gave him free of payment in order to obtain the loan. Thus there is both a loss to the borrower¬† and a gain to the lender.

The Shach (166, 6) cites others, including the Rif, who agree with the Rambam and he writes that there is no clear decision which opinion is authoritative and that one should act stringently.

Therefore, we have to consider whether according to the Rambam your arrangement is a Biblical prohibition. The first point (ruled in YD 160, 13) is that in order to be forbidden as ribis, the interest must come from the borrower to the lender. If a third party pays a lender to lend money there is no prohibition of ribis. Since the borrower is the yeshiva and not its students, the fact that the students act as minyan men free of charge is not prohibited.

The only element of ribis may be that the yeshiva was willing to forego payment for sending bochurim to participate in the minyan because of the loan. Forgoing payment for a service is similar to waiving rent and we have to determine if they are equivalent.

One reason to differentiate is that if the shul owes money for the service, it would owe it to the director of the yeshiva and not to the yeshiva itself because the director of the yeshiva is not paid by the yeshiva to provide this service and, strictly speaking, if someone made such an agreement with the director the latter could pocket the money himself. (Of course, it is possible the yeshiva will fire him for acting improperly by using the students to make money for himself.) The source is the Gemoro (BM 10A) that if a worker is employed to remove weeds from a field and finds a lost object while working, he can keep the lost object because he was not hired to find lost objects. According to this, the one who waived payment is the director who is a third party and not the borrower.

A second difference between this case and rent on a property is that the yeshiva did not obligate itself to send bochurim and just said that it will try to send bochurim. Since people do not pay for such a service, one cannot say the yeshiva waived payment. The basis of Rambam’s ruling is that when one stipulates that he will only lend if the borrower will perform a service, he is giving the service a monetary value and demanding that he receive the service for free. Many properties are rented out, and it was only the particular one of the borrower that was not rented. When its use was stipulated, that imputed a recognized value to living in the property. However, if people never pay for a service, it is difficult to say that the lender meant to give a monetary value to this service.

A third reason to permit your arrangement is because the borrower is an institution and not an individual. The Iggros Moshe (YD 2, 62) maintains that there is never a prohibition of ribis if the borrower is an institution since there is no personal liability. Even Rav Shlomo Zalman Auerbach (Minchas Shlomo 1, 28) who brings proof that it is not permitted, only proves that the prohibition is rabbinic. Since in your situation rabbinic ribis is permitted, this is another reason to be lenient.

Nonetheless, you can avoid relying on the above arguments if you pay even a little bit of money to the yeshiva for the service. The source for this ruling is a comment of Rabbi Akiva Eiger (YD 166, 2). R. Akiva Eiger says that in the case of rent, if the lender does not condition his loan on being able to live in the borrower’s property for free but just that he will rent for a cheap price it isn’t a problem of ribis since he paid for the value he received. He writes that the reason it is permitted even if the price he pays is less than the usual price, is because there is no ono’o (overcharging) when one pays for immovable objects.

Pertinent to your case is that the Gemoro rules (see CM 227, 33) that there is also no ono’o when one hires an employee. Paying someone to bring volunteers falls into this category since the payment is in exchange for performing a job. Therefore, for ribis considerations, if you pay even a small amount it will be as if you paid in full for the job that the yeshiva did.

In conclusion: It is best if you pay the yeshiva a small amount for asking bochurim to join your minyan but even if you don’t pay there are good reasons to permit your transaction.

 

 

 

 

 

 

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