1) DIVIDING THE VALUE OF A CALF BETWEEN THE OWNER AND THE CATTLE-RAISER
OPINIONS: The Mishnah discusses a partnership arrangement wherein the owner of calves hands them over to someone to raise them. When the calves become "Meshulashin," which RASHI means that they grow one third of their normal growth, the partners split the animals.
Does this mean that the partners split only the increase in value of the animals, while the original owner of the calf receives the full value of the calf before it was raised by the second partner, do the partners split the entire value of the animal?
(a) The CHIDUSHIM U'VI'URIM points out that TOSFOS (DH Aval) understands that only the increase in value is split between the partners. The original value of the calf is kept by the owner. Tosfos reasons as follows. The person who fattens the calf has no liability if the calf dies. Accordingly, there clearly is no problem of Ribis in this case (as there is in some of the other cases of the Mishnah, such as where a storekeeper sells merchandise on behalf of a wholesaler and they split the profit, but the storeowner is liable for the merchandise). Since this arrangement involves no problem of Ribis it obviously is permitted, so why does the Mishnah need to mention it? Tosfos answers that the Mishnah is teaching that whenever two people make such an arrangement the assumption is that the one taking care of the calf has no liability to pay for the animal in case it dies while under his care. Tosfos says that proof for this is that the calf is not appraised when the owner gives it to the person who will raise it, but it is appraised only when it has grown one-third of its eventual growth. The appraisal focuses on how much the calf has increased in value over the value of a young calf. This amount -- the increase in value -- is split evenly between the owner and the cattle-raiser.
(b) The NIMUKEI YOSEF and RA'AVAD, however, maintain that the entire value of the cow is split between the two partners when it reaches the point of "Meshulashin." The ME'IRI explains that the cattle-raiser receives half of the value of the calf in exchange for his hard work in fattening the calf.
The CHIDUSHEI MAHARI'ACH suggests that this is also the position of RASHI (DH Aval) and the BARTENURA, who mention that the cattle-raiser has no liability for the calf if it dies, and when it lives (that is, when it reaches a third of its eventual growth) "they will split it between them." These words imply that they split the total value of the calf. The Mahari'ach explains that the reason why Rashi says that an appraisal of the calf's value is made only after it has a grown a third, and not when it is initially given to the cattle-raiser, is because there is no need to assess its initial value, since the partners split the entire value of the animal evenly (and the original value is not given solely to the original owner). (Y. MONTROSE)
2) MAY A BORROWER PAY "AVAK RIBIS" TO THE LENDER?
QUESTION: The Gemara says that a document was found which revealed that Rav Ilish engaged in a transaction which apparently involved payment of Avak Ribis to a lender. Rava exclaimed, "Rav Ilish is a great man, and he would never make someone sin!"
Rava's wording seems odd. Rava should have said, "Rav Ilish is a great man, and he would never commit a sin!" Since the prohibition of Ribis applies to both the lender and the borrower, this is the wording that Rava should have used. Why did Rava say instead that Rav Ilish "would never make someone sin"?
(a) The RASHBA (Teshuvos #938) proves from the Gemara here that in contrast to ordinary Ribis, which both the lender is forbidden from taking and the borrower is forbidden from giving, the prohibition of Avak Ribis applies only to the lender. The borrower is not prohibited from paying Avak Ribis per se. Rather, if he pays Avak Ribis he causes the lender to transgress the prohibition against accepting Avak Ribis.
(b) The ROSH explains that the specific transaction in the case of the Gemara here did not involve a prohibition against paying Ribis. In this case, Rav Ilish accepted half of someone's merchandise as a loan, and he agreed to sell all of the merchandise in return for splitting the profits with the owner, paying him back the value of the borrowed goods after the sale. Since he was responsible for selling the merchandise, the owner was required to pay him for his work (as the Mishnah earlier (68a) says), for otherwise he is paying Avak Ribis to the owner by working and selling the owner's share of the merchandise. Since he is not actually working for nothing, as he would work anyway to sell his share of the merchandise, his work is not considered Avak Ribis. The Rosh explains that this is why Rava says that Rav Ilish "would never make someone sin," since he would only be making the lender sin ("Lifnei Iver"), but he would transgress no prohibition of Avak Ribis himself.
There are several different ways to understand the words of the Rosh.
1. The MISHNEH L'MELECH (Hilchos Malveh v'Loveh 4:2) explains that the Rosh argues with the Rashba. The Rashba understands that there is a general rule that a borrower who pays Avak Ribis never transgresses a prohibition of Ribis. The Rosh understands that the borrower who pays Avak Ribis could transgress a prohibition of Ribis in a different case. It is only because Rav Ilish was working anyway that there was no prohibition for him to pay Avak Ribis (aside from "Lifnei Iver").
2. The Mishneh l'Melech quotes the RANACH (2:21) who says that the Rosh agrees with the Rashba. However, the Mishneh l'Melech rejects this approach for many reasons, among them that it is not consistent with the wording of the Rosh.
REBBI AKIVA EIGER (in DERUSH V'CHIDUSH, 72b) writes that he does not understand how these Rishonim can deduce from the Gemara that there is no prohibition of Avak Ribis for a borrower. Why do the Rishonim not assume that there is no prohibition of Avak Ribis for the borrower until he pays? If this is true, it is possible that Rav Ilish entered into the transaction but never planned to pay the Ribis, as he would take his partner to Beis Din (if necessary) in order to show him that this is Ribis. This assumption might have prompted Rava's statement that Rav Ilish would not make someone sin. Rebbi Akiva Eiger explains that although this sounds like a clever scheme, the lender does transgress Avak Ribis when the agreement is made. Accordingly, it is possible that Rava said that Rav Ilish was a great man who would never enter into such a transaction even though he transgresses nothing, because he would be causing the lender to sin! If this is the explanation of the Gemara, there is no proof that the borrower does not transgress Avak Ribis when he pays the money to the lender. Rebbi Akiva Eiger leaves this question unanswered. (Y. MONTROSE)