Parshas Ki Seitzei 5785 – Intriguing Questions & Answers
Heter Iska For a Loan When the Borrower Does Not Intend to Engage in Business — and for One Who Has No Commerce
Q: I have been asked many times, both here in Eretz Yisroel (where banks owned by Jews are common) and chutz la’aretz, regarding loans for business purposes between friends, partners, and the like. Often, such loans involve interest, which can only be permitted through a heter iska.
The question then becomes: since the whole basis of permitting a loan through heter iska is only when the borrower actually engages in business with the funds he received from the lender (because then the money received higher than the principal loan is not viewed as interest, but rather a return on their investment) — it would seem that there is no basis to borrow from the bank under a heter iska for purposes such as buying groceries, a table and chairs, or seforim. Rather, one would only be allowed to use a heter iska if he had other investments. Therefore, if someone borrows money with a heter iska but does not actually use the money for business, rather for personal purchases such as a car or other household items — on what basis is this permitted? We will try to briefly explain whether a justification can be given.
A: It would appear that there are in fact two concerns at hand: one regarding ribbis (interest) and one regarding gezel (theft).
Regarding ribbis: Rav Shlomo Zalman Auerbach zt”l said there is room to justify such an arrangement if we say that the payment the borrower gives is considered compensation in lieu of an oath. (In a normal heter iska arrangement, the lender and borrower agree that should the borrower claim that the investment did not turn a profit, he will have to make a shevuah to that effect. Thus, should he decide that he does not wish to make a shevuah, the money returned is viewed not as ribbis, but rather only to avoid making a shevuah.) This heter applies even if the borrower knows he did not profit at all. Still, it is not so clear that it is permitted for a borrower to initially take such a loan knowing he will not engage in business with it (see Nesivos Shalom on Ribbis, Kuntres Heter Iska §9). See Shevet HaLevi (Vol. 8, §190 s.v. u’b’teshuvas).
Regarding gezel: When the borrower receives money for business purposes but instead spends it on household needs, Rav Shlomo Zalman Auerbach zt”l explained (ibid. 12) that the lender does not mind this, since he knows that in practice the borrower will pay him the profits even if he did not actually invest and earn. If so, it makes no difference to the lender whether the borrower uses the funds for personal needs.
However, several Acharonim suggest the following solution [Ginas Veradim, Yoreh Deah Klal 6: 8; Shulchan Aruch HaRav, Hilchos Ribbis §43; Chochmas Adam 143:5]: the borrower should transfer to the lender ownership of some of his assets that generate profit, in the amount of the iska. That way, there is a real iska producing returns for the lender. However, these Poskim only allow this when it is explicitly stated as such between the parties—which is not written in the standard heter iska documents. However, the Imrei Yosher (Vol. 1, §108) maintains that since both lender and borrower want the loan to be under a valid heter iska in a permissible manner, it is assumed that if the borrower uses the money for personal needs, he implicitly transfers part of his assets to the lender. Still, this is not so simple if no formal kinyan was made between them. Moreover, usually, the borrower has no profit-bearing assets aside from stocks or a savings plan in the bank, and it is unclear how he would be able to transfer those. Some justify this by saying that the borrower can transfer a share of his apartment to the lender, and even though this is not formally registered in a contract or deed, if both parties are Yirei Shamayim, it can be assumed there is full intent for a valid kinyan.
If the borrower does not transfer part of his property, there is another heter, brought in Shoel U’Meishiv (Mahadura Kama Vol. 3, §160). He was asked about a teacher who had no business, only a salary from teaching. He needed money to marry off his son and wished to borrow through heter iska and repay gradually from his wages. The questioner asked if this was permitted since the loan was not for business. The Shoel U’Meishiv ruled that even if he bought food with the borrowed money, it can be considered an iska, for through that food he was able to earn his livelihood. Without food, he could not work to support himself. Thus, the money indirectly caused profits and is considered to have generated returns. Therefore, he could borrow through heter iska to marry off his son. Additionally, he gains financially because once his son marries, he no longer needs to support him. This was also cited by the Maharsham (Vol. 2, §216, 252) who ruled accordingly (see also Shoel U’Meishiv Mahadura Telisa’a Vol. 3, §137).
However, many Poskim disagree with this reasoning, arguing that ultimately, the borrower did not directly profit from the loaned funds, and indirect benefit does not remove the prohibition of ribbis (see Imrei Yosher Vol. 1, §108; Maharshag Vol. 1 YD §4; Teshuras Shai Vol. 1, §88).
Rav Yosef Shalom Elyashiv zt”l (cited in Nesivos Shalom on Ribbis, Kuntres Heter Iska §17) explained the heter somewhat differently from the Shoel U’Meishiv and Maharsham: if the borrower has assets or savings plans that produce returns, and without the loan he would have had to sell those assets and lose the ongoing profits, then the loan can be seen as enabling him to continue profiting from his other investments. However, this heter only applies when the borrower indeed has such assets or property equal in value to the loan, and he would realistically have sold them in order to buy food. But if it is clear that he would not have sold the assets even without the loan, there is no basis to be lenient. Therefore, Rav Elyashiv zt”l ruled that one cannot count an apartment as an “asset” for heter iska regarding small loans, since it is obvious that no one would sell their home for a small sum. But for a large loan, since in such a case a person may have sold his home, one may rely on this.
A Ger Who Converted – Must He Toivel His Utensils?
Q: Geirei Tzedek often ask after their geirus whether they must toivel their utensils in a mikvah. The basis of the question is: since the whole reason for requiring tevilah of utensils is that they are being transferred from the tumah of a non-Jew to the taharah of a Jew (based on the Yerushalmi). If so, perhaps a convert who purchased utensils while still a non-Jew would need to immerse them. Or maybe one could say he is exempt, since his property “follows” his own body after he is toivel for geiurs. What is the proper practice?
A: We do not find anywhere in the Rishonim that a ger must be toivel his utensils. But in the Teshuvos of Acharonim, the issue is discussed, with opinions on both sides. Therefore, the common practice is to instruct geirim to toivel their utensils without a Bracha.
The reasoning of those who require tevilah is that now his utensils have entered Kedushas Yisroel, and thus he must treat them as any other Jew would. This is the ruling in Shevet HaLevi Vol. 4 (§92). Rav Yosef Shalom Elyashiv zt”l and other Poskim likewise ruled this way. I was also zocheh to hear from the Gaon Harav Avraham Genachovsky zt”l that it is proper for one overseeing a geirus to inform the convert that he should toivel his utensils.
However, in Maharshag (vol. 3, §48 s.v. va’orer) he writes that there is good reason why earlier Poskim did not mention such an obligation. The requirement of tevilas keilim is not because of blios assuros (absorbed prohibitions), but rather a gezeiras hakasuv, a mitzvah from the Torah derived from the spoils of Midian. Therefore, the obligation applies only when it similar to Midian, i.e., when utensils pass from the possession of one party to another — from a non-Jew to a Jew. But in the case of a non-Jew who converts, the utensils remain in the same ownership—only the owner himself has changed from non-Jew to Jew. In such a case, perhaps there is no obligation, since it is not similar to the original case in the Torah. Nevertheless, although according to this reasoning the ger would be exempt, it is still proper to be toivel the utensils, but without a Bracha.
The Avnei Nezer, cited in Shem Mishmuel (Parshas Matos), ruled that utensils do not require immersion, since a ger’s property follows the status of his body, and not like those who are stringent. He therefore ruled in practice to be toivel the utensils, but without a Bracha. Similarly, Rav Ovadia Yosef zt”l (Halichos Olam, Vol. 7, p. 269) ruled that converts who converted properly do not need to be toivel their utensils after koshering them (from blios), for the kedushah that came upon them when they became Jews also extended to their property. Therefore, the utensils do not require tevilah. This is also the conclusion of Rav Asher Weiss shlit”a in Minchas Asher Vol. 3 (§66).
In Practice: Since it is an argument between the Poskim, a ger who converts should be toivel his utensils, but without a Bracha.
May A Baal Teshuvah Daven in English?
Q: I was asked by a baal teshuvah who finds it very difficult to read in Hebrew, and he wishes to begin davening Shemoneh Esrei and other tefillos in English, or other foreign languages. Is this permitted, or should he be encouraged to make the effort to daven in Hebrew?
A: The Shulchan Aruch (Orach Chaim 101:4) rules: “One may pray in any language he wishes, but this applies only when praying with a congregation; when praying alone, one should not pray in any language other than Hebrew.”
However, in Teshuvos Levushei Mordechai (Orach Chaim vol. 1, §9), it is written that one should never daven in a foreign language, even with a tzibbur. Similarly, the Chasam Sofer (Orach Chaim §§84, 86) ruled that it is permitted only on occasion, not as a regular practice. This is also cited in the Mishnah Berurah (13), and see also Beur Halachah (62), where he writes a big chiddush: the heter to daven in a foreign language applies only to the spoken language of that place. The Aruch HaShulchan (101:9) adds another stringency: Shemoneh Esrei may never be prayed in a foreign language under any circumstance.
However, in Beur Halachah (s.v. yachol), he writes: “The Magen Avraham, citing Sefer Chassidim, states that it is better to pray in a language one understands if he does not understand Hebrew. But it is evident in Sefer Chassidim (§588) that this applies specifically if he is a Yirei Shamayim whose sole intention is to pray with concentration. Otherwise, he should pray in Lashon Hakodesh. The reason is that Lashon Hakodesh possesses unique segulos beyond all others: it is the language in which Hashem spoke to His Nevi’im, as the Ramban writes (Parshas Ki Sisa). Chazal also teach that the world was created with Lashon Hakodesh…Furthermore, when the Anshei Knesses HaGedolah composed the nussach hatefillah, 120 elders, including Nevi’im, deliberated over every word and every letter, with hidden secrets in mind. Thus, when we recite the tefillos in their precise wording, even without understanding, our tefillos ascend properly, for the very words themselves have effect above. This is not so when one prays in a foreign language.”
Nevertheless, in a pressing situation — such as for a baal teshuvah who sincerely wishes to pray in a language he understands — it would seem permitted, following the plain halachah. However, this applies only if he uses a faithful translation of the original text composed by the Anshei Knesses HaGedolah. Igros Moshe (Orach Chaim Vol. 4, 70:4) rules explicitly that if one makes up his own nussach hatefillah, he certainly does not fulfill his obligation.
In Practice: In a pressing situation, a baal teshuvah who wishes to daven in a language he understands may do so, provided he uses a proper translation of the established text of the Anshei Knesses HaGedolah. If he composes his own version, he does not fulfill his obligation.