1) LENDING MONEY OF ORPHANS WITH INTEREST

QUESTION: Rav Anan in the name of Shmuel ruled that the overseer of the estate of orphans may lend their money with interest. Rav Nachman objected on the grounds that Beis Din may not "feed something forbidden" to orphans, referring to the money earned as interest. Rav Nachman asked Rav Anan for the details of the case in which Rav Anan stated Shmuel's ruling, and it was discovered that the case in which Shmuel ruled leniently was not a case of absolute interest. Rather, Shmuel had permitted the orphans to receive rent money for their kettle and to take money for the loss of copper caused by the normal use of the kettle. Normally, one may not charge rent for the use of an object and make the renter pay for the object's depreciation. Since the renter must return the exact value of the object that he rented, it is considered like a loan, and the rental payment is considered Ribis. Nevertheless, in the case of the orphans' kettle, Rav Nachman ruled that it did not involve Ribis because the owner (i.e. the orphans) of the kettle still must suffer a loss due to the remaining copper that has deteriorated.

The Gemara concludes in the name of Rav Chisda (or Rav Sheshes) that the overseer is permitted to lend out the money of orphans with interest in a case in which the money is "Karov li'Sechar v'Rachok l'Hefsed" -- the money is invested in such a way that the manager of the money will be responsible for any loss to the money while the orphans will still receive their share of the profit. RASHI writes that this form of Ribis is prohibited only mid'Rabanan, and in the case of the money of orphans the Chachamim were lenient and did not prohibit it, in order to preserve the assets of the orphans.

Rashi implies that when Rav Anan originally said in the name of Shmuel that the overseer is permitted to lend out the money of orphans with interest, he was referring even to Ribis d'Oraisa ("Ribis Ketzutzah"). How could Rav Anan have entertained the possibility that one is permitted to do an Isur d'Oraisa with the orphans' money?

ANSWER: The RASHBA explains that (according to Rashi's opinion) when the overseer lends the money of the orphans with Ribis, he transgresses no Isur d'Oraisa himself. The money is not his; he is merely the Shali'ach of the orphans. The orphans themselves transgress nothing, because they are not obligated to observe the Mitzvos since they are minors. Although Beis Din may not feed a prohibited item to minors, this applies only when the minor himself is involved in the act of the Isur (such as when he eats food that is not kosher). Here, however, the minors are not doing any act at all. Therefore, Rav Anan understood that the prohibition against feeding an Isur to a Katan does not apply.

The Rashba points out that even Rav Nachman, who rejected Rav Anan's statement based on the ruling that Beis Din may not feed an Isur to a Katan, agreed that it is not prohibited mid'Oraisa to give the orphans money earned as interest. Rather, his argument was that the Chachamim would not have permitted such conduct due to the grave risks of Divine retribution involved with lending with interest.

Still, however, why did Rav Anan permit the one who borrowed the orphans' money to pay interest? The Isur of Ribis applies not only to the lender but also to the borrower! TOSFOS (DH Ma'os), in his second answer, explains that there is no Isur of Ribis for the borrower when the lender does not transgress any Isur. In the case of the orphans, since the orphans are minors who are not commanded to refrain from lending with Ribis, the borrower also does not transgress when he pays interest. Accordingly, Rav Anan ruled that the money of the orphans may be lent with interest, and he was not concerned that the borrower would transgress any Isur.

2) WHAT FORMS OF RIBIS MAY ORPHANS RECEIVE

OPINIONS: The Gemara discusses a situation in which money of orphans may be lent with interest: when the money that is lent is "Karov li'Sechar v'Rachok l'Hefsed" (literally, "close to profit and far from loss"). This refers to a case in which the manager of the funds will be responsible for any loss to the money, while the orphans will still receive their share of the profit. RASHI writes that this form of Ribis is prohibited only mid'Rabanan ("Avak Ribis"), and in the case of the money of orphans the Chachamim were lenient and did not prohibit it, in order to preserve the assets of the orphans.

Is this form of Ribis d'Rabanan ("Karov li'Sechar v'Rachok l'Hefsed") the only form of Ribis which is permitted for the money of orphans, or are other forms of Ribis d'Rabanan permitted?

(a) The RITVA writes that the Chachamim permitted only Ribis of "Karov li'Sechar v'Rachok l'Hefsed." All other forms of Ribis d'Rabanan are prohibited. He proves this from the fact that the Gemara does not say that "Avak Ribis is permitted with the money of orphans," but it says specifically that "Karov li'Sechar v'Rachok l'Hefsed" is permitted. (The Ritva explains the difference between this type of Avak Ribis and all other types of Avak Ribis.)

The TESHUVOS HA'RASHBA (cited by the BEIS YOSEF) is in doubt about whether all types of Ribis d'Rabanan are permitted, or only "Karov li'Sechar v'Rachok l'Hefsed." He mentions that perhaps only this type of Ribis d'Rabanan is permitted because it does not look like Ribis, but rather it looks like the money of the orphans is deposited for safekeeping with someone. When the money is returned to them (with the profit that accrued), it does not look like a borrower is paying extra in return for a loan, but rather it merely looks like the manager is returning the orphans' own money to them. Because of this doubt, the Rashba there writes that it is preferable to be stringent (and not to permit any other type of Avak Ribis with the money of orphans; this is in contrast to the way he rules in Chidushim here, that all Avak Ribis is permitted with the money of orphans).

(b) The RAMBAM (Hilchos Malveh v'Loveh 4:14) writes that all forms of Ribis d'Rabanan are permitted with the money of orphans. This is also the view of the RAN and NIMUKEI YOSEF in the name of the GE'ONIM, and the RASHBA and ROSH.

The SHULCHAN ARUCH (YD 160:18) writes, "Any Ribis d'Rabanan is permitted with the money of orphans and with money consecrated for poor people or for Talmud Torah or for the need of a synagogue." The wording of the Shulchan Aruch implies that all forms of Ribis d'Rabanan are permitted with the money of orphans.

70b----------------------------------------70b

3) THE DEGREE OF LIABILITY WHICH ONE MUST ACCEPT TO PERMIT A "TZON BARZEL" TRANSACTION

OPINIONS: The Mishnah states that one may not accept "Tzon Barzel" assets from another Jew. In a "Tzon Barzel" agreement, the recipient who manages the assets is obligated to compensate the owner for any decrease in the value of the assets. Consequently, the money or assets that he receives from the owner is considered a loan, and any profit that the recipient makes and gives to the owner is like interest paid for the loan. The Gemara explains that if the owner of the assets accepts upon himself responsibility for any Ones or depreciation ("Onsa v'Zola") that might occur to his assets, there is no Ribis involved and the transaction is permitted.

The Gemara mentions two forms of liability that the owner might accept upon himself: the loss of the assets (such as through an Ones), and the depreciation of the value of the assets. In order to permit an agreement of "Tzon Barzel," does the owner need to accept both forms of liability upon himself, or does it suffice to accept only one?

(a) The RAMBAM (Hilchos Malveh v'Loveh 8:12) and SHULCHAN ARUCH (YD 177:1) write that if the owner of the property accepted upon himself responsibility for the loss or depreciation of the assets, then the property is considered to be in his possession (and it is not a loan but a deposit) and the transaction is permitted. The VILNA GA'ON (in BI'UR HA'GRA to the Shulchan Aruch there) writes that the owner must accept both forms of liability in order for the transaction not to be considered a loan and not involve Ribis. He infers this from the way Abaye differentiates between the case of the Mishnah here and the case of the Mishnah in Bechoros. Abaye says that the Mishnah in Bechoros refers to when the owner "accepted upon himself any Ones and depreciation." Similarly, in the rest of the Sugya, "Ones and depreciation" are mentioned together, implying that the owner must accept both in order for the transaction to be permitted. (See Tosfos to 70a, DH d'Ka.)

(b) The MACHANEH EFRAIM (Hilchos Malveh v'Loveh 32) understands that the Rambam is of the opinion that it suffices for the owner to accept responsibility for only one of the risks -- either Ones or depreciation. The Machaneh Efraim writes that the Rambam infers this from the Gemara earlier (69b) that discusses the case of a boat that was rented out. He understands the Gemara like Rashi, who writes that the renter is permitted to accept upon himself liability for Ones if the owner accepts upon himself responsibility for depreciation, and this allowance applies even for Kelim that are not subject to deterioration (unlike the case of the copper kettle that deteriorates). Rashi maintains that the owner's responsibility for depreciation alone suffices to make the transaction a deposit and not a loan.

OTHER D.A.F. RESOURCES ON THIS DAF