Question:
What is the primary and source for the halacha pertaining to Interest?
Answer:
The Gemora in Bava Metzia daf 71a, says that one who lends with interest becomes poor and never recovers. The Rambam Hilchot Malveh Viloveh 4:2 delineates six biblical prohibitions which could potentially be violated in any particular loan transaction. The Ramban in Sefer Hamitzvos Shoresh 6 adds a 7th.
In any case where a person owes a debt to another Jew whether it is because he borrowed money or because he hired him and owes him or because he rented something and didn’t pay yet, it is forbidden to pay more than the actual debt because of the prohibition of taking interest. The Shulchan Aruch Y.D. 176:6, Rama Y.D. 161:1, which comes from the Gemora Bava Metsia 63b explains that as long as one is paying extra to be able to hold the money for longer, it would be a violation of this prohibition.
It is prohibited to lend with interest even if the borrower is wealthy and willingly agrees to pay the interest. It is prohibited even in cases where it seems entirely fair such as reimbursing the lender for the interest he was earning while his money was in a non-Jewish bank.
If neighbors have a good relationship and commonly borrow without being careful to return everything they borrow, then there is no prohibition of interest as the neighbors aren’t borrowing but rather gifting one another. If they obliged themselves to repay it, orally or if it is understood, then indeed it is a loan and not a gift and interest would apply. However, if neighbors do not have such a relationship, then a neighbor who borrows a half a bag of sugar is borrowed only that amount may be returned unless the amount difference is insignificant (about which people don’t care) or if one is unsure how much one borrowed one may return an amount to be sure the loan is repaid.
Fungibility and Returning Items of Like Type
Some explain that a key factor in determining if something is considered a loan is whether the item is fungible and normally traded; if it is always traded to be kept that is a sale. Another factor that is used is whether the type of item being lent is similar to the item that is being returned; if they’re dissimilar it is like a sale. The Biurim in Chelkas Binyamin 161:1 s.v. dvar wrote that there’s a dispute beisween the Chavos Da’as 161:1 and Mekor Mayim Chayim 161:1 why a loan of slaves isn’t a loan but a sale. The Chavos Da’as explains that since each slave is unique and needs a significant evaluation it is considered a sale when you trade one for two later. His premise is that there’s no prohibition of a loan of one item for another like apples for oranges. However, the Mekor Mayim Chaim explains that since a person doesn’t give a slave to be loaned out or traded (lhotzah) but rather to be used it isn’t considered or termed a loan but a sale.
Judging by the Time of Stipulation
It is considered biblical ribbis to lend 100 items to get 120 items in return, even if at the time of the return those 120 items afterwards are the same price as the 100 items were at the time of the original loan. |