Bava Metzia 61b: Rabbi Elazar said: If interest was paid pursuant to an agreement ahead of time, Beis Din can force the lender to return it. But if it was Rabbinically prohibited interest, Beis Din cannot force him.  Rabbi Yochanan said: Even when interest was paid pursuant to an agreement ahead of time, Beis Din cannot force him to return it.  

Bava Metzia 65b: The halacha is like Rabbi Elazar.  

ב”מ סא ע”ב: אמר רבי אלעזר: רבית קצוצה ־ יוצאה בדיינין, אבק רבית ־ אינה יוצאה בדיינין. רבי יוחנן אמר: אפילו רבית קצוצה נמי אינה יוצאה בדיינין.

ושם בדף סה ע”ב: והלכתא כרבי אלעזר.

Alan, president of an established ladies’ wear corporation, needed a loan to operate his business. He approached his brother-in-law Sam for a $750,000 loan, and although Sam was at first reluctant, he eventually transferred the entire sum. The two agreed on a six percent annual interest rate, which was to be paid in installments over a five-year period. Alan lived up to the terms of the agreement and paid back the entire principal, including $120,000 in interest. Taking the loan proved to be a wise decision, as Alan’s business was once again stable, and the future seemed very promising. Not too long after he finished paying off the loan in full, Alan attended a Torah class in which the topic of the prohibition of collecting interest was discussed. The rabbi teaching the class noted that in many instances a borrower retains the right to recover the interest he paid via a Jewish court of law. Alan approached Sam seeking to recover the $120,000 in interest he paid. However, Sam rejected the claim. Sam explained that he had forfeited earnings from his previous investment, totaling at least the annual percentage he charged Alan, and brought to his attention that he had graciously lent him a very large sum with no guarantee.

The two went before the Bet Din of Aram Soba in Jerusalem. The Rosh Bet Din, Rabbi Max Sutton, asked Alan, “Did you accept personal liability for the loan? If your company had been unsuccessful, would you have repaid the loan from your own money?”

“No,” said Alan, “it was understood that the loan was for my business only, and payments were to be made from my business account. If the business failed, I would not be held personally responsible.”

“If so,” said Rabbi Sutton, “Sam has no obligation to return the interest. Rabbi Moshe Feinstein (Igros Moshe, Yoreh Deah 2:63) says that one may charge interest to a corporation (e.g. a Jewish owned bank that pays interest to its depositors). The rationale behind this ruling is that since the owner is not personally liable in the event of bankruptcy, the prohibition of interest is not applicable. A borrower is defined by Torah law as someone who has personal liability to repay a debt.

“Furthermore, even the halachic opinions that disagree with Reb Moshe and prohibit lending with interest to a corporation, agree that the prohibition is reduced to a Rabbinical violation. As a general rule, interest collected in violation of Rabbinical law is not subject to return after it is paid to the lender. Hence even according to the more stringent view, Sam is exempt from returning the interest he collected.”  

[Community Magazine, December 2022, p. 48]

[Those who disagree with Reb Moshe actually fall into two categories: Rabbi Tzvi Pesach Frank held that it is ossur mid’oraysa for a corporation to pay or receive interest (Har Tzvi 126). R’ Tzvi Pesach permits it only in the case of a government-owned bank, because that is similar to a charity fund where the principal stays invested and the poor are supported from the interest. This case is mentioned by the Maharit, brought in the Mishneh Lamelech, end of chapter 4 of Hilchos Malveh V’loveh. Since the poor people do not have rights to the principal itself, it belongs to no one, and therefore it may pay or receive interest. So too in the case of a government-owned bank, no individual person has rights to the money, and therefore it may pay or receive interest. This actually goes a step further than Reb Moshe does in the case of a corporation, where he permits it only to pay interest, not to receive.

The Minchas Yitzchok 4:16 (p. 42) brings the Rogatchover Gaon who says the same as Reb Moshe: that a corporation may pay interest (his actual words are אין זה רבית בבאנק על פי דין תורה, which may mean it is permitted for the bank to pay interest, or receive, or both). The Rogatchover proves this from Bava Kama 93 where it says that a shomer (guardian) who was negligent in guarding tzedakah money does not have to pay, unless the poor have set allowances they receive from the money. This shows that “tzedaka” is not an owner, and by the same token it is allowed for a tzedaka fund to lend or borrow with interest.

According to this opinion, the Minchas Yitzchok argues, a Jew taking out a loan from a Jewish-owned bank to purchase a house can simply create a corporation and buy the house with the loan under the corporation’s name.

However, he says, if the proof rests on the analogy to lending tzedaka money, the Radvaz (1:414) says that if the fund is for the poor of this city only, although they don’t have set allowances, then it is considered that the fund has owners and it is forbidden to lend it on interest. Here, the stockholders have the right to demand their money, so in a way they are even stronger owners than the poor are in the tzedaka fund.  Furthermore, the Shulchan Aruch (YD 160:18) rules that even with money of the poor that has no owner, only Rabbinic interest can be collected, not Torah interest.

The Bet Din in this story may have understood that the reason why it is allowed to lend the tzedaka fund on Rabbinic interest is because even regular interest on this type of loan is only Rabbinic, thus if the interest is Rabbinic it is two D’rabanans. If so, then even if a corporation lent out money with Ribbis D’Oraisa, it would be downgraded to a Rabbinic prohibition and the interest would not be claimable.]

Bava Metzia 97a: Rava said: A melamed, a planter, a shochet, a doctor and a barber are all considered working for their customers, so that if the customer were to borrow an item from them while they worked for him, and it broke, he would be exempt under the rule of בעליו עמו. The students said to Rava: “You are then working for us!” Rava was upset and said to them, “Are you trying to make me lose money? On the contrary, you are working for me, because I could switch you from one masechta to another, but you cannot.”

בבא מציעא צז ע”א: אמר רבא: מקרי דרדקי, שתלא, טבחא, ואומנא, ספר מתא ־ כולהון בעידן עבידתייהו כשאילה בבעלים דמו. אמרו ליה רבנן לרבא: שאיל לן מרִ. אקפיד, אמר להו: לאפקועי ממונאי קא בעיתו? אדרבה, אתון שאילתון לי. דאילו אנא מצי אישתמוטי לכו ממסכתא למסכתא, אתון לא מציתו לאישתמוטי.

Because he had his own original approach to study, Rabbi Elchonon Wasserman did not follow the standard practice of other yeshivos in choosing the tractates to be studied. He refused to confine himself to Nashim and Nezikin alone, and then, instead of only covering the first few chapters of the masechta, he would cover each masechta to the end. He regarded this approach as vital to the wellbeing of the students. He took into account that his yeshiva was a preparatory division for younger students, from which they would proceed to the senior yeshivos, where deep and intensive scholarship is devoted to the limited area of Nashim and Nezikin. Consequently he would say, “If not now, when? If you do not acquire a basic familiarity with at least a large portion of the Talmud, and if you will not cover each assigned tractate from beginning to end, then you are liable never to study these Gemaras at all.”

Accordingly, he instituted in the yeshivos where he taught that each semester a new masechta be started and covered to the end, the exception being Bava Basra, which was very large and thus required at least a full year – two semesters. Here, too, however, his approach was original. He would begin with the eighth chapter, Yesh Nochalin, rather than the first, Hashutfin. Only after he had reached the end of the tractate did he revert to the beginning and teach from Hashutfin until Yesh Nochalin. His assumption was that if he began with the first chapter, it was very doubtful whether his students would ever reach the end of the lengthy masechta. They would tire in the middle…

When he attempted to introduce this innovation into the Brisk Yeshiva, the talmidim protested that it was unheard of to reverse the order. They were unwilling to adopt a practice so different from that of all other yeshivos. Reb Elchonon immediately proposed that they and he submit their arguments to a Din Torah to be judged by Reb Chaim, the Rav of the town.

Reb Elchonon contended that a rosh yeshiva had the authority to select the masechta to be studied, as Rava states in Bava Metzia 97a. The talmidim argued that Tosafos on Bava Metzia 2a say, “Rebbi did not follow the order of the masechtas, but taught in accordance with the wishes of the talmidim” (and therefore, when a dispute appears in one masechta and then an anonymous mishnah taking one of the sides appears in a later masechta, this does not mean that Rebbi decided the dispute, because perhaps the later masechta was actually taught by Rebbi first).

“That is a good argument,” Reb Elchonon replied in the presence of Reb Chaim, “but in truth there is no contradiction. When are students subject to their teacher’s wishes? When it makes a difference to the teacher which masechta he teaches.” (Rashi explains that Rava’s motivation for changing masechtas was that he was worried about forgetting a particular masechta.) “To Rabbeinu Hakadosh, there was no difference. He knew everything and could always teach the masechta that appealed to his talmidim.

“To me, too, it makes no difference,” Reb Elchonon continued. “You, however, are not interested in any particular masechta, but merely in following a certain procedure – that we should start at the beginning. Your argument, then, has no basis. The chapters beginning with Yesh Nochalin deal with the laws of inheritance and are like a new masechta, having no connection with the beginning of Bava Basra, which is concerned with the laws of partners, neighbors and presumptions of ownership. All that is necessary is to enclose the word “Yesh” in a decorative box.”

Reb Chaim upheld Reb Elchonon’s view, and ruled accordingly. The talmidim had to accept the verdict and open their Gemaras to Yesh Nochalin.

•  

Many years later, in 1937 in Baranovitch, a similar dispute arose: The yeshiva had just finished Beitzah and Reb Elchonon wanted to learn another Moed masechta, while the talmidim wanted to learn a yeshivishe masechta from Nashim or Nezikin. They cited the above Tosafos which says that Rebbi taught his talmidim whatever masechta they wanted to learn. Reb Elchonon replied, “Rebbi considered what was best for his students and acted as he did. We also know very well that it is better for you to learn Moed.”

The talmidim also argued that the Gemara (Avodah Zarah 19a) says, “A man can only learn Torah in the subject that his heart desires.” Reb Elchonon responded, “Chazal did not intend that this should apply to young students who have never studied the masechta I wish to teach them. Hence they cannot know properly what to want and what not to.”

The case was submitted to the mashgiach, Rabbi Yisroel Yaakov Lubchansky, who ruled in favor of the talmidim.

Source: Reb Elchonon (Artscroll), pp. 74-76

Bava Metzia 110b: If one appointed an agent to hire workers, neither he nor the agent transgresses “bal tolin” (the prohibition to delay a worker’s wages overnight). He does not transgress because he did not hire them, and the agent does not transgress because he is not withholding their wages.

בבא מציעא קי ע”ב: תנו רבנן: האומר לחבירו צא שכור לי פועלים ־ שניהן אין עוברין משום בל תלין, זה ־ לפי שלא שכרן, וזה לפי שאין פעולתו אצלו.

Reb Aharon Steinberg once posed a question: The Torah says, “See, I (Anochi) place before you today a blessing and a curse.” The Baal Haturim says that the word “Anochi” alludes to the first of the Ten Commandments. What does that commandment in particular have to do with this verse?

Also, the Torah promises a blessing if we listen to Hashem – but doesn’t the Gemara say that there is no reward for mitzvos in this world (Kiddushin 39b)?

Furthermore, Hashem Himself follows the Torah’s laws, so how can He postpone our reward, our “wages”, until Olam Haba?

The answer is that Hashem gave the Torah through an agent, Moshe Rabbeinu, and one who hires through an agent does not have to pay on the same day. But the first two of the Ten Commandments were given by Hashem directly to us. Therefore the reward for emunah and renouncing idolatry is paid in this world. Hence, “See that for the mitzvah of Anochi I place before you today, in this world, a blessing and a curse.”

Source: Beis Aharon

Bava Metzia 76b: Rava said: If someone hired workers to dig ditches, and it rained and filled the land with water such that they were unable to dig, if the workers examined the land the day before and were aware that it might rain, he need not pay the workers. But if they did not examine the land the day before, the owner must pay the workers as much as a worker would accept to agree not to work.

בבא מציעא עו ע”ב: אמר רבא: האי מאן דאגר אגירי לרפקא, ואתא מטרא ומלייה מיא. אי סיירא לארעיה מאורתא ־ פסידא דפועלים, לא סיירא לארעיה מאורתא ־ פסידא דבעל הבית ויהיב להו כפועל בטל. פרש”י סיירא לארעא מאורתא והוליך הפועלים שם וראוה ולא הבינו שהיא לחה או שמא ירדו גשמים בלילה לית להו כלל דהא חזו אינהו גופייהו ועל מנת כן נשתכרו לו. לא סיירוה מאורתא – עליו היה לתת לב לדבר ולהודיעם אם תמצאו שדה לחה לא אתן לכם כלום, ויהיב להו כפועל בטל.

A catering company rented out a hotel in the Catskills and made a Shabbos Nachamu getaway. On Thursday afternoon there was a power outage that lasted until Shabbos, and all the food they prepared got spoiled, or could not be cooked. But the guests already arrived, so they needed something to eat for Shabbos. The catering company rushed out and bought boxes of matza and gefilte fish jars, and that was all the guests had to eat for the whole Shabbos.

Afterwards the guests took the catering company to a Din Torah and demanded their money back. The company responded that they deserved some of the payment, since they had at least given them a Shabbos retreat. The dayan opened up a Yom Kippur machzor and said, “When Yom Kippur falls on Shabbos, some say the words רצה במנוחתינו (accept our rest) and some do not. Your dispute depends on that dispute. Those who don’t refer to Yom Kippur as a day of “rest” hold that a day without eating cannot be restful. The Mishnah Berurah (582:20) paskens like this opinion. Accordingly, a Shabbos without normal, hot food is not a Shabbos, and they do not have to pay.”

Source: Rabbi Hillel David

[It sounds like the psak was that the guests do not have to pay at all. But from our Gemara we see that when an unforeseen accident cancels a job, the workers (i.e. the caterers) must be paid. Only in the case of rain, which is common, and the workers saw the property and realized that rain would make the job impossible, do they lose their wages, since they accepted that risk. But a power outage lasting a whole day is a very rare occurrence which no one expected. Seemingly then, the guests must pay at least some of the price of the getaway.]

Bava Metzia 66b: If someone sells the future fruits of a date palm to his friend, Rav Huna said: Until they grow, he can back out, but once they grow he cannot back out. Rav Nachman said: Even after they grow he can back out.

בבא מציעא סו ע”ב: המוכר פירות דקל לחבירו, אמר רב הונא: עד שלא באו לעולם ־ יכול לחזור בו. משבאו לעולם ־ אין יכול לחזור בו, ורב נחמן אמר: אף משבאו לעולם ־ יכול לחזור בו.

A Jew in Tiberias who was known as a tzaddik sold half of his mitzvos to a wealthy man for 22,000 rubles. The buyer paid half the amount, but before paying the other half he went to see a rav, who asked Hashem to send him an answer through a dream as to whether this was a worthwhile purchase. He received the answer that this “tzaddik” was not any better than anyone else. The buyer went back to the “tzaddik” and demanded a refund. But the seller refused, and instead demanded the other half of the sale price. The dispute was presented to the Netziv (Meishiv Davar v. 3, siman 14)

The Netziv commented that this seller showed, by the very fact that he sold his mitzvos, that he was not a tzaddik. He brings several proofs:

1. Selling one’s mitzvos is what Esav did. The Torah’s criticism of Esav is not that he sold the birthright for a bowl of soup. The Rashbam says that Esav sold it for its full value, and the soup was only to close the deal. Still, the Torah says that he despised the birthright, because a right-thinking person realizes that spiritual reward is priceless and should not be sold for any money in the world.
2. We see in the Gemara in Taanis (25a) that Rabbi Chanina ben Dosa received a golden leg from his table in Olam Haba and he returned it to Heaven. In Shemos Rabbah (52) we see that his wife was the one who demanded that he return it. So how much more wrong it is to deliberately sell the honor of Hashem, to take pleasure in Hashem in Olam Haba, in order to receive physical pleasure in this world. It is like one whom the king honored with a medal and he sold it to something else. Such a person has despised the honor of the king and deserves a punishment.  
3. The Torah says, “You have cried in the ears of Hashem, saying, ‘We wish we could eat meat! It was better for us Egypt.’ Hashem will give you meat and you will eat.” (Bamidbar 11:18) The complainers remembered the physical pleasures of Egypt, and paid no attention to the spiritual pleasures in the desert, where they enjoyed the revelation of the Shechinah on a constant basis. Therefore Hashem said, I will give you meat until it comes out of your noses, because you rejected Hashem who is in your midst. The same could be said of this man who despised the pleasure of Olam Haba and sold it for physical pleasure, for money. He is deserving of punishment and does not fit the description of a man on a high spiritual level.

Then the Netziv asks on himself from the story (Sotah 21a) of Shimon the brother of Azariah and Rabbi Yochanan of the Nasi’s house, who sold half their reward for learning Torah to those who supported them. He answers that there it is different because they did it in order to be able to learn Torah. The Mishnah in Avos (4:17) says, “One hour of teshuva and good deeds in this world is better than all the life of Olam Haba.” They loved the Torah so much that they didn’t demand full reward for it in Olam Haba, only to take pleasure in Hashem through the battle of Torah. The Gemara also brings the story of Hillel and his brother Shevna, where Shevna offered Hillel money in return for partnership in the reward for his Torah, but a Heavenly voice proclaimed, “If a man gives all the wealth of his house for love, they would despise him.” [Most understand this to be because Hillel had already learned Torah, so the money would not help him learn more; it was merely an attempt to buy off his reward. But the Netziv disagreed with this – perhaps Hillel would continue learning thanks to Shevna’s money.] The money would have helped Hillel learn with a clear mind and no worries. But Hillel was so engrossed in his learning that his poverty did not bother him in the least, as the Gemara tells about him (Yuma 35b) that he used to earn a small coin and give half to the guard at the Beis Medrash door and sit and learn. Therefore he refused to take the money. However, Rabbi Yochanan and Shimon the brother of Azariah knew that if they would have to worry about making a living, it would disturb their learning, as we find in Eiruvin 65a that Abaye said that even a small interruption, like his mother asking him to bring the cereal to the table, would decrease his ability to learn. Therefore they agreed to give up spiritual pleasure in Olam Haba in order to learn diligently. But to simply exchange spiritual pleasure for physical pleasure – that is like the attitude of the complainers in the desert.

The Netziv then takes the position that the sale was not valid, and offers six arguments:

1. The man sold half of his reward, presumably including Torah. But one cannot sell reward for Torah, because that means sitting in the yeshiva in Olam Haba, and only real scholars can do this. As an analogy, there is difference between selling an honor bestowed by a king, which can be done, although it is insulting to the king to do so, and selling a position conferred by the king on a skilled person. One cannot sell the position because the buyer doesn’t have the requisite skills. So once the part of the sale that covers reward for Torah is invalid, the entire sale is invalid.
2. Reward for mitzvos is a דבר שלא בא לעולם which we hold one cannot sell. And even according to the opinion that one can sell דבר שלא בא לעולם, the sale only takes effect when it comes into existence (Bava Metzia 66b), which in this case would be after the seller’s death, at which time no sale can take place.
3. There is no act of kinyan.
4. The Rosh and the Shiltei Hagiborim (in the 8^th chapter of Bava Kama) disagree on whether one can sell the rights to a mitzvah. For example, the mitzvah of bris milah falls upon the father: can the father sell the right to do the mitzvah to someone else? Their disagreement stems from two different interpretations of the story of Yaakov and Esav. The Shiltei Hagiborim holds that Esav really sold the right to offer korbanos to Yaakov, only that he could go back on the sale since there was no kinyan; therefore Yaakov made him swear not to go back. The Rosh holds that the sale was not effective at all. But both agree that if one has already done a mitzvah, one cannot sell the reward to another person.
5. The Gemara in Kiddushin says that a person who regrets doing a mitzvah loses his reward. If it were possible to sell the reward, we could have the absurd situation where the seller could regret his mitzvah and buyer would lose the reward he paid for.
6. The reason why you cannot sell the reward of a mitzvah, says the Netziv, is because the reward comes as a natural consequence of the mitzvah, just as healing is a consequence of taking medicine (Midrash Rabbah beginning of Re’eh, Midrash Tehillim 132). The reason why teshuva helps is that teshuva is a type of medicine too.

Therefore, the sale of the mitzvos was invalid and the buyer can demand back his 11,000 rubles.

Source: Meishiv Davar Chelek 3, Siman 14

Bava Metzia 10b: There is no agency for sin.

בבא מציעא י ע”ב: אין שליח לדבר עבירה

During the Shmitah of 5761, one religious kibbutz decided to invent a heter mechirah that would work even according to the Chazon Ish. The Chazon Ish objected to the regular heter mechirah done by the chief rabbinate for four reasons: 1) Since it is forbidden to sell land to a non-Jew in Eretz Yisroel, the representative carrying out the sale on behalf of all the land owners is a שליח לדבר עבירה – a representative to commit a sin – and his representation is invalid. 2) The sale is not serious since it is not accompanied by a professional survey and appraisal. 3) The sale is not legally binding since it is not registered with the government. 4) They make a condition that the non-Jew must sell it back after Shmitah, which renders it a temporary sale, and a temporary sale is like a קנין פירות which does not remove the restrictions of Shmitah.

(It would seem that these objections are mutually exclusive and asked as a ממה נפשך type reasoning: if anyone finds a way to disagree with arguments 2, 3 and 4 and believes that the sale is 100% valid, then it is a sin and one cannot appoint a representative to commit a sin.)

This hechsher had the land owners carry out the sale themselves, they used professional appraisals, they registered it with the government and they made no conditions. They drew up a separate contract to sell the land back, which would go into effect after a year. A reliable hechsher endorsed their products.

Some customers in America, surprised to see Shmittah produce on their supermarket shelves, approached Rabbi Yisroel Belsky and asked him whether to buy it.

Upon investigation, Rav Belsky discovered that the land was owned as a general partnership by all members of the kibbutz, but only the officers of the community directly participated in the sale. One partner acting on behalf of the others is still shlichus (agency) and so the first objection of the Chazon Ish was never really eliminated.

Furthermore, many poskim object to the heter mechirah on different grounds than the Chazon Ish. They argue that the sale is not real since the Jewish owner continues to control all decisions regarding the land’s usage, sells the produce and keeps the profits earned. This is similar to one who sells his property on paper to prevent his creditors from seizing it, but continues to act as the owner (Choshen Mishpat 99:7). (Contrast this with the sale of chometz, where the Jew has nothing to do with the chometz until after Pesach.) The heter mechirah done by this kibbutz was subject to this same objection.

And of course, the sale of land only solved the problem according to the practice of Yerushalayim that fruit grown on non-Jewish owned land does not have holiness of Shmittah. People in Bnei Brak, on the other hand, are stringent about this.