Note to readers: This column is dedicated to the refuah sheleimah of Shlomo Eliezer ben Chaya Sarah Elka.
In the beginning of this week’s parshah Yehudah tells Yosef that he must allow Binyamin to return to his father because Yehudah had guaranteed Binyamin’s return. As the pasuk says: “ki avdecha arav es hanar… – for your servant has guaranteed the boy…” (Bereishis 44:32; see also 43:9). The Gemara in Baba Basra 173b derives from Yehudah’s words the concept of an areiv (guarantor). When one takes out a loan he may assign a guarantor who, in the event that the borrower does not repay the loan, will repay it. This is binding, and the lender can repossess the guarantor’s property in the event that the borrower does not repay the loan.
The Gemara in Kiddushin 7a applies this halacha to another scenario. The Gemara says that we can apply the halacha of areiv to a case where a woman says to a man that if he gives a third person money she will become mekudeshes (betrothed) to him. The Gemara says that just as if a guarantor regarding a loan can become obligated to repay the loan, even though he never received any money, so too can a woman become mekudeshes to a man if he gives money to a third party on behalf of her command.
There is a machlokes Rishonim regarding the interpretation of this Gemara. The Rashba in Kiddushin says that we do not consider as if the guarantor actually received any money; rather, the mere satisfaction that someone adhered to his command is sufficient to obligate him to repay. Similarly, a woman can become mekudeshes simply with the satisfaction that the man listened to what she said and gave money to a third person.
Tosafos, in Baba Metzia 57a and 71b, say that when one is an areiv we consider it as if the guarantor received the money that the lender gave to the borrower and that he is lending it to the borrower. Therefore he is obligated to repay the loan. Likewise, we consider as if the woman received the money that the man gave to the third person and that she then gave it to the third person. As a result, she can become mekudeshes since we consider it as if she actually received money from the man.
The Gemara in Kiddushin 7a says that this rule of areiv applies to all monetary matters. For example, one can buy property in this manner. If one wants to sell property he can tell the buyer to give the money to a third person, and it is considered as if he actually gave money to the seller since he gave the money by his request.
The Gemara in Baba Metzia 71b says the following concerning this scenario: if a non-Jew lends a Jew money with interest and the Jew is ready to repay his debt when another Jew asks the first Jew if he could lend him the money and he will repay him with the interest owed, this is forbidden. Tosafos there says that this is forbidden even if the second Jew will pay directly to the non-Jew. Tosafos explains that this halacha results from the halacha of areiv. Since the second Jew is paying the non-Jew on behalf of the first Jew, the first Jew is considered the areiv and it is considered as if the money with the interest is going to the first Jew and then to the non-Jew. The first Jew is essentially lending the second Jew money with interest, and the first Jew then receives the payment from the second Jew and then repays the non-Jew.
The Machaneh Efraim (Hilchos Ribis 11) says that even according to the other Rishonim who explain that by areiv we do not actually consider that the money went to the areiv but rather that the areiv simply got the satisfaction that someone adhered to his command, Tosafos’s halacha would be applicable. This is so because even if one gives this monetary-valued satisfaction (in addition to his principal payment) to his lender, it is considered ribis (interest).
The Machaneh Efraim, however, suggests that all Rishonim will agree that in the classic case of areiv, ribis will be permitted – as per this explanation: if one tells another to give money to a third person and will then lend the money to him interest-free, one might say that by applying the halachos of areiv it should be considered as if the borrower gave the lender the money since he gave it to someone else on his behalf. However, the Machaneh Efraim says that this case is permitted min haTorah. This is so because even though we consider as if the money went to the lender, it is nevertheless not considered interest on the loan; rather, it is a gift that one is permitted to give to his lender.
Other Acharonim disagree with this and suggest that this scenario is prohibited. In fact the Ritva in Baba Metziah 69b says explicitly that this is prohibited.Rabbi Raphael Fuchs
About the Author: For questions or comments, e-mail RabbiRFuchs@gmail.com.
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