1) THE DIFFERENCE BETWEEN MILK FUTURES AND FRUIT FUTURES
QUESTION: The Beraisa says that when one proposes to sell for a set amount whatever milk comes out of his goats, the sale is permitted, despite the fact that the amount of milk might be more valuable than the amount of money which the buyer paid. RASHI (DH Mutar) explains that since the buyer accepts upon himself the risk of a loss (in the event that the value of milk falls) as well as the possibility of a gain (in the event that the value of milk rises), there is no Ribis.
TOSFOS (DH Ma she'Izai) asks that this ruling seems to contradict the ruling of Rav (73a) who states that one is not allowed to purchase the future crops of an orchard for a set amount when it is still unclear how large of a crop it will yield. How can Rav's ruling be reconciled with the Beraisa?
(a) TOSFOS answers that there is a difference between the two types of sales. Ordinarily, when a person who is about to milk his goats proposes to sell the milk to a potential buyer, he does so only one or two days before the milking. Since the actual commodity will soon be in his hands (or in his pail), he does not charge a lower price for the milking. He merely figures what the average milking is worth and sells the rights to the milk in advance. In contrast, it is common for speculators to buy the crops of an orchard far in advance, because they know that the farmer will generally give them a discount for advancing them the money long before the harvest. When the speculator receives a crop which is worth more than what he paid, it is Ribis. Although one might suggest that it should be permitted because the speculator accepts upon himself the risk of losing the crop to hail, ice, or violent rain, Tosfos explains that Rav maintains that these are not serious enough risks to offset the usual clear gain of advancing money long before the harvest. This is why Rav forbids the purchase of crop "futures," but agrees that one may buy goat milk "futures."
The RITVA asks that nowhere does the Gemara mention anything about purchasing the commodity far in advance. If this condition is so important in determining the permissibility of the transaction, the Gemara should mention it.
(b) The RITVA therefore explains that the transaction in the case of the orchard is forbidden because of an exit clause which protects the speculator from complete loss. This clause states that in the event that the field yields no crops at all, the speculator is allowed to renege. Rav maintains that this type of transaction is prohibited because the speculator does not face any risk of serious loss; the crop that is harvested is usually worth more than he pays. He effectively is advancing money to the owner of the orchard, which is Ribis. In the case of the goats, the condition is that even if the goats produce no milk at all on that day, the sale is valid. This makes the possibilities of gain and loss even, and thus the transaction is not considered Ribis.
The Ritva adds another difference between the two cases (although it is unclear whether he maintains that this second difference suffices by itself to distinguish between the two cases). The crops of the orchard are not yet present at the time the deal is made, and thus the advance payment looks more like a loan. In contrast, the milk of the goats is usually noticeable when the deal is made. (This seems to contradict the earlier reasoning of the Ritva, that the buyer faces the risk of not getting any milk, unless one assumes that there is milk which is not fit for human consumption due to other factors.) (Y. MONTROSE)
2) MAY A BORROWER DO A FAVOR FOR HIS LENDER?
QUESTION: The Mishnah states that a person who lends money may not live rent-free in the courtyard of the debtor who owes him money. The Gemara concludes that this prohibition applies even when the debtor's courtyard is not the type of courtyard that he would otherwise rent out, and even when the creditor is not the type of person who would have to rent this courtyard (as he easily could find other courtyards to stay in). Such a case is called "Zeh Neheneh v'Zeh Lo Chaser" -- "This one (the creditor) benefits and this one (the debtor) loses nothing." Nevertheless, such an arrangement is prohibited because it looks like Ribis.
The RITVA asks that if the Gemara prohibits a creditor from benefiting from the debtor even in a manner of "Zeh Neheneh v'Zeh Lo Chaser," why is it the accepted custom to permit the creditor to borrow tools and utensils from the debtor during the period of the loan?
ANSWER: The RITVA answers that a creditor is not prohibited from borrowing items from the debtor, even though it is a case of "Zeh Neheneh v'Zeh Lo Chaser" like the case in which the creditor lives in the courtyard of the debtor, for the following reason. When the creditor lives in the courtyard of the borrower, it looks improper; it is not the normal practice that one person lives in another person's yard, rent-free. Homeowners usually do not give permission for that sort of thing, even if it costs them nothing. It therefore gives the appearance of Ribis. In contrast, people normally do lend things to others, regardless of whether or not they borrowed money from the person who wants to use their objects. Therefore, as long as the debtor would normally lend this item to the creditor even if he had not borrowed money from him, he is allowed to lend it to him while he owes him the loan.
HALACHAH: The SEFER TORAS RIBIS (ch. 4) quotes the SHACH who writes that even if a person normally lets someone borrow his items without explicit permission, a creditor may not exercise this right when he has loaned money to his friend. This is because he likely will borrow the debtor's item with an extra sense of confidence due to the loan which he has given to him, and this appears like Ribis.
The Toras Ribis adds a number of guidelines for the permitted way in which a creditor may benefit from his debtor while the loan is outstanding. For example, a creditor may use the debtor's car if he would normally do so even when no loan is outstanding, and he is not required to pay for the use of the car or for the fuel if he normally would not do so. RAV YISROEL REISMAN (in "The Laws of Ribis," Mesorah Publications, 1995) points out that this may not always be permitted. Most Acharonim follow the view of the BEIS YOSEF (YD 166), BACH (ibid.), and others who rule that this leniency applies only to borrowing things in private, not in public. One may not borrow his debtor's items in public, since it gives the impression of Ribis. Accordingly, if the car is marked with the borrower's name or business, his creditor would not be allowed to borrow it. (Y. MONTROSE)