1) WHAT THE VERSE OF "GEZEL" TEACHES
QUESTIONS: The Gemara asks that since the prohibition against Gezel (theft) could have been derived from the prohibitions of Ona'ah and Ribis, why does the Torah specify a separate prohibition of Gezel? It answers that the Torah writes a separate prohibition of Gezel in order to give a second prohibition against cheating one's workers.
(a) Why does the Gemara not answer simply that the Torah is giving a second prohibition for the Isur of Gezel itself? Why does the Gemara need to take the verse out of context and say that it refers to cheating one's workers? (TOSFOS DH la'Avor Alav)
(b) The MISHNEH L'MELECH (Hilchos Malveh v'Loveh 4) asks that the verse of "Lo Sigzol" should be necessary to teach the prohibition against stealing from Hekdesh. This prohibition cannot be derived from Ribis, since the Torah permits Hekdesh to borrow with Ribis.
(a) TOSFOS answers that since Gezel is a "Lav ha'Nitak l'Aseh" (a prohibition that can be rectified by the performance of a Mitzvas Aseh), one is not punished with Malkus for transgressing the prohibition. Accordingly, it does not make sense that the Torah would give another Lav for Gezel when there would be no practical consequence of a second prohibition. However, one is punished for cheating one's workers, and therefore a second prohibition is relevant (that is, one who transgresses receives two punishments).
This answer is difficult to understand. Cheating one's workers is also a "Lav ha'Nitak l'Aseh"; just as the Torah requires a thief to return what he stole, the Torah requires an employer to return money to his workers! The MAYIM CHAYIM explains that when the Torah writes two prohibitions for the same act in close proximity to each other, they cancel the prohibition's status as a "Lav ha'Nitak l'Aseh," since one positive commandment cannot rectify the transgression of two prohibitions. Hence, the act of cheating workers, which is prohibited by both the verse of "Lo Sigzol" and "Lo Sa'ashok" (Vayikra 19:13), is not considered a "Lav ha'Nitak l'Aseh."
(b) The MITZPEH EISAN answers that a different verse already prohibits stealing from Hekdesh -- the prohibition against Me'ilah (Devarim 12:17). (Y. MONTROSE)
2) THE "GEZEL" ELEMENT OF THE PROHIBITION OF "RIBIS"
QUESTIONS: Rava asks why the Torah must give three specific prohibitions against stealing -- Ribis, Gezel, and Ona'ah, when one of them would suffice to teach the others. The Gemara concludes that in truth the prohibition of Gezel could have been derived from the prohibitions of Ribis and Ona'ah (through a Tzad ha'Shaveh).
The Gemara makes it clear that the prohibition of Ribis stems from the concept of Gezel. There are a number of problems with this supposition.
1. Why should taking interest, which essentially is nothing more than taking payment in return for the use of one's money, be different from taking rent, which is payment in return for the use of one's object? In the case of rent, the person returns the object to the owner together with the rental fee. Why should a person be prohibited from returning borrowed money together with an interest payment?
2. If Ribis is considered a form of Gezel, then why is it permitted (and, according to some opinions, even a Mitzvah) to take Ribis from a Nochri? One is prohibited to steal from a Nochri!
3. How can Ribis be considered Gezel, theft, when the borrower explicitly asked to borrow money with interest and he willingly pays the interest? Theft is when someone takes something against the will (or without the knowledge or consent) of the owner!
(a) Gezel is defined by what the Torah says one is forbidden to take. It is not defined simply as an act of taking something without the knowledge or consent of the owner. The element of Gezel which exists in the prohibition of Ribis is a result of the fact that the Torah curtails one's right to take interest on loans to fellow Jews. Since the Torah prohibits taking interest, doing so constitutes Gezel. This understanding of the element of Gezel involved with Ribis answers all of the questions:
1. The Torah does not prohibit taking a fee for lending one's object (or apartment) to someone else in a rental agreement. It does prohibit taking a fee for lending money, and therefore interest on a loan is considered Gezel, while payment for a rental is not.
2. Since the Torah does not curtail one's rights to take interest on loans to Nochrim, taking interest does not constitute Gezel. (RAV AVRAHAM DOV AUERBACH, Rav of Tiberias)
3. Although the borrower willingly pays the interest, the Torah prohibits the lender from receiving it. Since the Torah prohibits it, it constitutes Gezel.
(b) RAV SHALOM GELBER in NESIVOS SHALOM (Hilchos Ribis, p. 35) explains the difference between renting out objects for a fee and taking interest on loans as follows. When one rents out an object, the use of that object is a form of consumption of the fruits of that object, since one benefits from the use of the object itself. In return for those "fruits," the borrower pays a fee. In contrast, in the case of a loan, the fee -- or interest -- is paid not in return for a benefit realized, but to compensate the lender for the loss that he suffers by not being able to profit from the money that he has lent out. The borrower's benefit from using the money comes from his own business ventures for which he uses the money, and it does not come inherently from the money itself.
1. This explains why taking interest on a loan is prohibited, but receiving a fee for renting out an object is permitted. The rental fee is a payment for the benefit realized from the object itself. Interest on a loan is compensation for the lender not having the money in his possession with which to profit.
2. Jews are commanded to perform Chesed for one another with their bodies, time, and money -- "v'Chei Achicha Imach" (Vayikra 25:36). Thus, they are obligated to perform Chesed even if it means forfeiting the profits which they would have made had they used their time for business and not for Chesed. Likewise, they are obligated to forfeit the profits which they would have made had they used their money for business and not for Chesed (such as lending to their brothers when in need). Taking interest for that passive loss is therefore considered an unjust gain, Gezel.
In contrast, a Jew is not obligated to sacrifice his time or money for the welfare of a Nochri, and therefore money received as interest from a Nochri, to compensate for profits not gained as a result of lending the money, is not considered unjust gain.
3. Since a Jew is obligated to give up his time and money in order to help another Jew, taking money in return for giving such help is considered theft, regardless of whether the recipient agrees to pay interest. (This is similar to answer (a) above.)
(c) RAV MOSHE FEINSTEIN zt'l in DIBROS MOSHE (56:5) writes that when the Gemara here associates Gezel with Ribis, it does not refer to the standard form of Ribis. He points out that it is Rava who says that Ribis involves Gezel. It is Rava who agrees with the view of Rebbi Yochanan (61b) that money paid in violation of the Torah prohibition of Ribis cannot be retrieved by Beis Din. Accordingly, Ribis cannot be actual Gezel if Beis Din cannot force the lender to give it back. Rather, when Rava says that Ribis involves Gezel, he refers to a situation in which the lender takes interest from the borrower forcefully, against his will.
Rav Moshe Feinstein zt'l cites proof for this assertion from the words of the HAGAHOS HA'GRA (Shulchan Aruch YD 161:10) who writes that even according to Rebbi Yochanan, who maintains that ordinary Ribis is not considered Gezel, when the Ribis is taken forcefully it is considered Gezel. (M. Weiner)
3) THE NATURE OF THE PROHIBITION OF "RIBIS"
OPINIONS: Rava asks why the Torah must give three specific prohibitions against stealing -- Ribis, Gezel, and Ona'ah, when one of them would suffice to teach the others. The Gemara concludes that in truth the prohibition of Gezel could have been derived from the prohibitions of Ribis and Ona'ah (through a Tzad ha'Shaveh).
The Gemara makes it clear that the prohibition of Ribis stems from the concept of Gezel. There are, however, other ways of understanding the nature of Ribis.
(a) The RAMBAN (Devarim 23:20-21) explains that the Isur of Ribis is based on the Torah's dictum that a Jew must do Chesed for his fellow Jew. He proves this from the fact that the verse that prohibits taking interest concludes with a blessing, "... so that Hash-m your G-d will bless you in all of your endeavors..." (Devarim 23:21), just as it concludes the Mitzvah of Tzedakah with a blessing, "... for in return for this matter, Hash-m your G-d will bless you in all of your deeds and in all of your endeavors" (Devarim 15:10).
(b) RAV SAMSON RAPHAEL HIRSCH zt'l (in his commentary to Devarim 23:20) writes that the nature of the Isur of Ribis is to show that Hash-m is the Master and Owner of all property. (This is similar to the nature of the Mitzvah of Shabbos and the Mitzvah of Shemitah, as Rav Hirsch explains.) This is expressed by restricting the lender from taking interest on what he considers to be his own money. By restricting him from taking interest, the Torah reminds him that the world and everything in it is Hash-m's (see Tehilim 24:1).
(c) The KLI YAKAR (Vayikra 25:36) explains that the nature of the Isur of Ribis is a reinforcement of the Midah of Bitachon, trust in Hash-m. He writes that lending with interest is a no-risk source of income, and thus the one who lends with interest is prone to lose his trust in Hash-m that it is Hash-m Who provides man with his livelihood. The profits of other businessmen, in contrast, are not assured and are not risk-free, and thus they maintain their Bitachon in Hash-m. (M. Weiner)
4) ONE WHO STEALS WITH INTENT TO RETURN THE STOLEN OBJECT
QUESTION: The Gemara derives from the verse of "Lo Tignovu" (Vayikra 19:11) that the Torah prohibits stealing even when one steals merely to aggravate the victim, and even when one steals with intent to pay Kefel to the victim (such as when the thief wants to give a gift to his friend but he knows that his friend will not accept a gift).
Why is a special source in the Torah needed to teach that one is prohibited to steal with intent to aggravate the victim? Why would one have thought that such stealing, which has criminal intent, would have been permitted?
(b) The RITVA answers (in his second approach) that the Gemara refers to one who steals with intent to return the stolen object (after he causes anguish to the victim). One might have thought that such stealing is not included in the Isur since the thief does not intend to keep the item that he steals but intends to return it.
(b) The RITVA (in his first approach) explains that without a special source to teach that stealing with such intent is forbidden, one might have thought that it is not included in the Isur of stealing since the thief -- who is not stealing the item because he wants it for himself -- derives no personal pleasure from the item.
If, however, the thief steals it with intent to return it, then indeed he has not transgressed the Isur of stealing.
RAV MOSHE FEINSTEIN zt'l (in DIBROS MOSHE, He'oros, p. 427) questions this approach. How is it possible to suggest that a thief who steals an object with intent to return it has not transgressed the Isur of stealing? If, as the Gemara here says, the Torah forbids one from stealing with intent to pay Kefel, then it also certainly forbids one from stealing with intent to pay back the object itself. Moreover, why would one have thought that deriving pleasure from the stolen item is a condition for transgressing the Isur against stealing? The very act of taking someone else's property without permission is what defines the act of stealing, and not whether the thief derives benefit from the stolen object!
Rav Moshe Feinstein zt'l rules in accordance with the Ritva's second approach, that the Isur of stealing applies even when one steals with intent to return the stolen object. He proves this from the words of the RAMBAM (Hilchos Geneivah 1:2) and the TUR (CM 348:9). (M. Weiner)
5) ONE WHO STEALS WITH INTENT TO HARASS
OPINIONS: The Gemara teaches that one is not allowed to steal "Al Menas l'Meikat." RASHI (DH l'Meikat) explains that this refers to stealing with intent to harass. Does this mean that the person steals the object and intends to give it back after he has pained the victim, or does it mean that the thief merely has no intent to use the object for himself, but he also has no intent to return it?
(a) The SHULCHAN ARUCH (CM 348:1) rules: "It is forbidden to steal even a miniscule amount according to Torah law, and it is forbidden to steal even in a playful manner, and even on condition to return [the object], or in order to pay double, or in order to cause pain. Every form [of stealing] is forbidden in order that one not accustom himself to this."
The S'MA (CM 348:2) writes that when the Shulchan Aruch mentions the case of stealing "in order to cause pain," he refers to the case in which the thief intends to return the object. What does the Shulchan Aruch mean when he says, in a separate case, "and even on condition to return [the object]"? The S'ma explains that this refers to one who steals an object with intent to use it for his own needs and then to return it to the owner. This is also implicit in the words of the RAMBAM in SEFER HA'MITZVOS (Mitzvah 264), where the Rambam defines "Al Menas l'Meikat" as "to pain the owner and to worry him, and afterwards he will return it to him."
(b) The SHITAH MEKUBETZES writes that some explain that "Al Menas l'Meikat" means with intent to cause pain and then to return the object. The Shitah Mekubetzes questions this explanation from the fact that people do this all the time, and thus it surely cannot be considered Gezel. The Shitah Mekubetzes quotes another opinion that explains "Al Menas l'Meikat" to mean stealing with intent to cause pain without intent to give back the item. The thief does not use the item; he steals it only so that the owner should suffer from its loss.
The KETZOS HA'CHOSHEN (348:1) quotes the opinion of Shitah Mekubetzes and the opinion of the Rambam in Sefer ha'Mitzvos. He comments that perhaps a parent is permitted to steal an object from a child, with intent to give it back, in order to educate his child to keep his things in their proper place. The parent certainly does not have intent to cause pain to the child. However, a friend should never do such a thing, since he likely will have in mind intent to harass his friend and not merely to educate him.
It is important to note that other prohibitions are involved when one steals with intent to harass, such as the Mitzvah of "v'Ahavta l'Re'acha Kamocha." RAV CHAIM PALAGI in TOCHACHOS CHAIM writes that a person who does such a thing is likely to be cursed by the victim, who will wish ill on whoever stole his object. He writes that he knows of several cases in which people died young after they were cursed by people from whom they stole, even though they intended to return the objects. (See also ATARAH L'MELECH of RAV PAM zt'l, who strongly decried this practice. He added that even the game that some adults play wherein they tease children by taking away a toy temporarily is included in this category.) (Y. MONTROSE)
6) RETRIEVING THE INTEREST FROM THE LENDER
QUESTION: Rebbi Elazar and Rebbi Yochanan disagree about whether money paid as interest in a case of Ribis d'Oraisa ("Ribis Ketzutzah") is retrievable in Beis Din. Rebbi Elazar says that Beis Din can force the lender to return the money, while Rebbi Yochanan says that Beis Din cannot force the lender to return the money.
RASHI (DH Ad Kan Ribis Ketzutzah) writes that according to the opinion that the Ribis is retrievable, Beis Din can force the lender to give it back when the borrower demands it from him during his lifetime. (This is also the ruling of the TAZ (CM 161:3).)
Why should Beis Din wait until the borrower demands the Ribis back? According to the opinion that the Ribis must be returned, the Ribis must be returned because the Torah says, "v'Chei Achicha Imach" -- "and your brother shall live with you" (Vayikra 25:36), meaning that the lender must give back the Ribis so that his fellow Jew can live. Since Beis Din is empowered to enforce all Mitzvos Aseh, why should Beis Din not be able to force the lender to fulfill this Mitzvas Aseh to return interest? Why must Beis Din wait until the borrower makes a claim in court?
Moreover, the Gemara in Bava Kama (94b) clearly implies that one must return Ribis even when the borrower does not demand it. Why, then, does Rashi say that only when the borrower demands it must it be returned? (KETZOS HA'CHOSHEN)
(a) The KENESES HA'GEDOLAH and the KETZOS HA'CHOSHEN suggest that Rashi is not describing the Halachah when he says that Ribis must be returned only when the borrower demands it. Rather, Rashi is describing the normal situation: the borrower usually demands his money back right away.
(b) The CHASAM SOFER here understands that Rashi is making a Halachic qualification to the law that Ribis must be returned. (He does not understand the words of Rashi literally, though, as the Taz understands them.) He explains that Rashi mentions that the Ribis must be returned when the borrower demands it only because Rashi is explaining the view of this particular Amora, Rava. Rava (as Tosfos proves) maintains that Ribis cannot be retrieved in Beis Din ("Ribis Ketzutzah Eino Yotzei b'Dayanim"), and therefore the only situation in which Beis Din may retrieve the Ribis is one in which the borrower demands it back. The reason why Beis Din may retrieve it when the borrower demands it is due to Rava's opinion elsewhere (Temurah 4b) that "Iy Avid Lo Mehani" -- if a person does something which the Torah prohibits, his act is ineffective (and thus the money that the lender took as interest does not legally become his, and thus the borrower may claim it back in Beis Din). (M. Weiner)