This column is dedicated to the refuah sheleimah of Shlomo Eliezer ben Chaya Sarah Elka.
In parshas Behar the Torah reiterates some of the halachos of ribbis, and teaches several new halachos as well. The pasuk says that one should not take ribbis from his fellow, he should fear God, “v’chei achicha imach – and your brother shall live with you.” The Gemara derives from the end of this pasuk that if one does charge ribbis and collects it, it must be returned.
The Gemara, in Baba Kama 112a, says that the obligation to return ribbis lies only with the one who charged the ribbis. However, if one inherits money that his father received as a ribbis payment, he does not have to return the money. The Ritva, in Kiddushin 6b, draws from the halacha that only the one who charged and received the ribbis must return it; when ribbis is owed it is a real debt. This is so even though the Torah forbade charging and collecting the ribbis. When two people arrange a deal that involves ribbis, the ribbis is actually owed. Therefore, if and when it is paid it belongs to the recipient – for it was actually owed to him. This does not affect the fact that he is obligated to return the ribbis. This only means that until he does return the ribbis, the money belongs to him. Thus his heirs can keep the money, as it actually belonged to their father. In this case the obligation to return the money is only on the father; therefore, they do not have to return the money.
Based on this, the Ritva says that if one took money that he received for ribbis and was mekadesh a woman with it, the kiddushin would be valid. If a woman owes a man money and he forgives her that debt on the condition that she will be mekudeshes to him, the kiddushin is valid. This is because forgiving a debt is something of value. The Bach (Even Ha’ezer 28) says that the same halacha would follow if a woman owed a man ribbis and he forgave her the ribbis. Since the money that is owed for ribbis is actually owed, his forgiveness of the ribbis debt should also be considered as value – and that should create a valid kiddushin.
Rav Elchonon Wasserman, zt”l, Hy”d, suggested another proof – from the Gemara in Baba Metzia 62a – that a debt of ribbis is actually owed. The Gemara there says that according to some opinions one who writes a shtar (document) obligating ribbis to be paid does not receive lashes. This is because the lav is nitik l’assei (can be rectified by performing an assei), namely by ripping up the document. The Gemara asks the following on this: there is a halacha that a shtar by which one can collect is considered to be as if the money was already collected. How then can it help to rip up the shtar? Once it is written, the one who wrote it has already transgressed. If we assume that the debt is not actually valid when one obligates himself to pay ribbis, how can the Gemara suggest that we can apply the halacha that a shtar by which one can collect is considered to be as if the money was already collected? If there is no debt owed on the shtar, we cannot consider it as having been collected. We see from here that when one obligates himself to pay rabbis, the debt is valid.
Reb Chaim Soloveitchik (stensils) says that based on this we can answer a question posed by the Pnei Yehoshua on Tosfos. Tosfos (Baba Metzia 62a) suggests that one who receives lashes for collecting ribbis is still obligated to return the ribbis.
The Pnei Yehoshua says that one who receives lashes for collecting ribbis should be exempt from repaying the ribbis. This is because we should apply the rule of kim lei b’deraba minei – one only receives the more stringent punishment, not both lashes and the obligation to repay the ribbis. So why does one who charges ribbis receive two punishments?
Reb Chaim suggests that since the obligation to return ribbis is not the same as the obligation to return a stolen item that does not fully belong to the thief, but rather that the ribbis payment fully belongs to the lender, we cannot compare this obligation to a general obligation to return money. The obligation to return ribbis is a separate mitzvah that the Torah obligated the lender to perform. Thus, he may receive lashes and be obligated to return the ribbis.