Bava Metzia 62a — the Talmud in English

And your brother shall live with you,"

And Rabbi Elazar explained:

Return it to him,

if you took interest from him, return the interest to your brother, the borrower,

so that he may live with you.

So that he will be able to live with you.

And the Gemara raises an objection:

And Rabbi Yoḥanan,

who holds that “fixed interest is not recoverable through the courts,”

what does he do with this verse, “And your brother shall live with you”? —

Why is the verse needed?

And the Gemara answers:

It is needed

for the verse,

as it was taught —

for what we learned:

Two people who were walking on the road

in the wilderness, or anywhere else where there was no water,

and in the possession of one of them

there was

a flask

a jug

of water.

The water in the jug belonged to him. And there was not enough water in the jug to keep both of them alive until they reached a place where there was water.

In a situation in which

if both of them drink

each half of the jug, they will

die

after some time, because the water will not be sufficient for them until they reach an inhabited place.

And if one of them drinks

the entire jug,

he will reach

the inhabited place

alone,

but his companion will certainly die. What should they do?

Ben Petora expounded: It is preferable that both of them drink,

that they divide the water equally for the sake of temporary life,

and die

after some time.

And let one not see the death of his companion,

by drinking alone while the other dies of thirst.

Until Rabbi Akiva came and taught

a new law: the verse says,

“And your brother shall live with you,”

which means,

“Your life takes precedence over the life of your fellow,”

to teach us that the entire obligation to sustain your brother applies specifically when it is “with you,” when you too can live together with him. But where your brother’s life is in place of your own life, your life takes precedence.

Therefore, when two people are walking on the road and one of them has a flask of water, Rabbi Akiva rules that the owner of the flask should drink the water, and he is not obligated to sustain his companion when he himself would die as a result.

The Gemara returns to the dispute between Rabbi Elazar and Rabbi Yoḥanan, whether fixed interest is recoverable through the courts or is not recoverable through the courts.

And we raise an objection against Rabbi Yoḥanan, who holds that there is no obligation to return interest:

It was objected:

We learned in a beraita in Bava Kamma: heirs to whom their father

left

as an inheritance

money of interest

that he had collected unlawfully from the borrower,

even though they know that it is money of interest, they are not obligated to return it

to the borrower.

The Gemara had thought that the reason the heirs are exempt from returning it is that the entire source for obligating the lender to return the interest to the borrower is the verse “And your brother shall live with you,” and the wording of the verse indicates that the Torah warned specifically this lender, but not his heirs.

And we infer from the beraita: the tanna exempted specifically the heirs from returning the interest;

but their father is obligated to return it,

because if their father too were not obligated to return the interest, in accordance with the opinion of Rabbi Yoḥanan, the tanna should have written that the father himself is exempt, and all the more so the heirs.

And we answer:

According to the law, their father too is not obligated to return it,

in accordance with the opinion of Rabbi Yoḥanan.

And

as for your question: if so, why did the tanna write the exemption only with regard to the orphans?

I will answer you:

Since he wanted to teach in the latter clause, “Their father left them

the lender left his sons by inheritance

a cow and a garment

that he had taken from the borrower for the interest that he owed him,

or

any identifiable object

from which it is recognizable that it came to their father through interest,

they are obligated

the heirs

to return

these objects to the borrower,

because of the honor of their father,”

so that they should not bring him into disrepute by saying that he lent with interest; and surely the sons are obligated to honor their father during his lifetime and after his death.

And since the law of the latter clause was stated only with regard to the heirs, by the laws of honoring father and mother, therefore

he taught,

the tanna of the beraita established

also

[also] the

first clause,

“Their father left them money of interest; they are not obligated to return it,”

with regard to them,

the heirs.

And with regard to the essential law of the cow and garment, we raise an objection:

And these —

that is, the sons of the lender with interest —

because of “the honor of their father,” are they obligated?

Is there indeed reason to obligate them in the mitzva of honoring their father?

Read here,

is it not appropriate to expound concerning him what we expounded elsewhere regarding the verse

“And you shall not curse a prince among your people,”

that it is speaking specifically

of

a prince who is included among those who

“act in accordance with the conduct of your people.”

For the Torah prohibited cursing specifically such a person; one who does not observe Torah and mitzvot, who is not included among those who act in accordance with the conduct of your people, is excluded—and it is permitted to curse him. And likewise, should we expound this way with regard to honoring father and mother!?

And we answer:

As

when

Rav Pinḥas said in the name of Rava

in tractate Ḥagiga, when he established another beraita, that it is speaking

when he repented; here too

we will explain the beraita regarding interest in this way, because it is speaking

when

their father

repented,

and returned to being included among those who “act in accordance with the conduct of your people.” The orphans are once again obligated to honor him and return the interest.

And we return and raise an objection:

If it is when he repented, what does he need it with him!?

Part of the act of repentance is to rectify what he corrupted; if so, surely he returned the interest. Why, then, is this obligation imposed upon the heirs?

And we establish it: for example,

he did not manage to return

the interest and complete his repentance

before he died.

The Gemara brings another objection against Rabbi Yoḥanan from a beraita:

It was objected:

It was stated in a beraita:

“Robbers and lenders with interest, even though they collected, must return it”:

And if we interpret

“robbers”

mentioned in the beraita as actual robbers, in its plain sense,

there

is reason to wonder:

what is there about “even though they collected”?

What relevance does the matter of “collection” have with regard to robbers? Is there, besides the robbery itself, an additional stage of collecting the robbery that would exempt him from returning it?

For in either case,

if it was robbed, it was robbed!

If they have already robbed the object, the object is stolen from its owners, and he has become obligated by “he shall return the stolen item that he stole.”

And

if it was not robbed,

if they have not yet robbed it, why, then,

do you call them “robbers”

at all!?

They have not yet robbed anything; what will they return?

Rather, say:

We are compelled to interpret the beraita as one continuous statement, and the tanna spoke only about lenders with interest who are called “robbers.”

And this is how his words are interpreted:

“Robbers —

who are they?

[are they not]

lenders

with

interest” —

even though they collected, they must return it!

In any event, it is explained in the beraita that lenders with interest who collected the debt are obligated to return it to the borrower. This is an objection against Rabbi Yoḥanan, who holds that fixed interest is not recoverable through the courts?

And we resolve it: The dispute between Rabbi Yoḥanan and Rabbi Elazar is a dispute

of tannaim

nay

and Rabbi Yoḥanan will hold in accordance with the tanna who exempts one from returning the interest, whereas the beraita above follows the position of Rabbi Neḥemya, who obligates one to return the interest.

As it was taught:

It is explained at the end of the chapter that regarding the prohibition of interest, the lender, the borrower, the guarantor, and the witnesses who signed the document transgress. The lender transgresses [among other things] also the prohibition “You shall not place upon him interest”—for the “fixing” of the interest—and also “You shall not take from him interest”—for the “taking.” The borrower, however, transgresses only the prohibition “You shall not make your brother pay interest” [and “before the blind you shall not place a stumbling block”].

The guarantor and the witnesses transgress only the prohibition “You shall not place upon him interest.” And concerning whether the lender and the guarantor receive the punishment of lashes, the early tanna, Rabbi Neḥemya, and Rabbi Eliezer ben Yaakov dispute it below:

The early tanna obligates the lender and the guarantor in the punishment of lashes.

And

Rabbi Neḥemya and Rabbi Eliezer ben Yaakov exempt the lender and the guarantor both

from the prohibition itself and from the punishment of lashes.

Because there is a positive commandment associated with them,

since they are charged with doing something to rectify the wrong they committed. And the known principle is that one does not receive lashes for a prohibition that is rectified by a positive commandment; therefore the lender and the guarantor are exempt from lashes.

And we infer: what is the positive commandment imposed upon the lender and the guarantor after they collected the interest, on account of which Rabbi Neḥemya and Rabbi Eliezer ben Yaakov exempted them from lashes?

It is not —

apparently, this is only

because we say to them, “Rise and return it,”

return the interest that you took, as the Torah’s mitzva says, “And your brother shall live with you.” Rabbi Neḥemya and Rabbi Eliezer ben Yaakov held that fixed interest is recoverable through the courts, and therefore they regarded it as a prohibition that is rectified by a positive commandment, for which one does not receive lashes.

It follows,

therefore, according to this assumption, that

the early tanna,

who disagrees with Rabbi Neḥemya and obligates the lender and the guarantor in lashes as well,

held

that the lender and the guarantor

are not subject to returning it.

They are not obligated to return interest, in accordance with the opinion of Rabbi Yoḥanan; consequently, the prohibition of interest is not rectified by a positive commandment, and therefore one receives lashes for it.

We thus have a proof that the tannaim disputed the same matter as Rabbi Elazar and Rabbi Yoḥanan?

And we reject this:

No,

it can always be said that once the lender has already collected the interest, everyone agrees that he receives lashes for the prohibition “You shall not take from him interest,” because he has no positive-commandment obligation to return the interest, and consequently this is not a prohibition that is rectified by a positive commandment.

And as for your question,

what

[what] Rabbi Neḥemya and Rabbi Eliezer meant by exempting him because there is

a “positive

and

commandment”?!

I will explain it to you in another way:

Rabbi Neḥemya and Rabbi Eliezer ben Yaakov spoke when the lender had not yet collected the interest. They were not discussing the prohibition “You shall not take,” but rather the prohibition “You shall not place,” which prohibits the very fixing of the interest. However, this prohibition remains dependent on whether they will ultimately collect the interest or not.

Therefore, in the case of a loan documented in a promissory note, as long as they have not collected with the note, the lender has a positive-commandment obligation to rectify the prohibition, and

to tear the document

to tear the promissory note, in order to prevent the possibility of collection.

For this reason Rabbi Neḥemya and Rabbi Eliezer ben Yaakov regarded it as a prohibition that is rectified by a positive commandment, and exempted them from lashes.

And we raise an objection against this establishment:

What does Rabbi Neḥemya hold?

Rabbi Neḥemya hold?

If he holds,

if he holds that

“a document that stands to be collected is considered as collected,”

meaning: a lender who possesses a promissory note has the borrower’s land, which is encumbered by the note, considered as though it has already been collected and is held in the lender’s possession, even before he actually collects it.

If so, in a note containing interest, the interest too is considered as though it has already been collected. If so, what benefit will tearing the note provide for rectifying the prohibition?

And

already

they performed

the lender and the guarantor

their prohibition

immediately upon receiving the note from the borrower. Why, then, is the prohibition of interest considered a “prohibition that is rectified by a positive commandment”?

And if

Rabbi Neḥemya holds that a document made to be collected

is not considered as collected,

then it is simple and clear that one does not receive lashes at all for the prohibition “You shall not place,” since as long as they have not collected the interest, no prohibition has been committed. If so, in what way did the early tanna disagree with them and obligate the lender to receive lashes?

For he did

the lender

nothing at all?

And we answer:

He always holds that a document that stands to be collected is not considered as collected.

And as for your question: if so, what is the reason for the early tanna, who obligates the lender to receive lashes? What prohibition did he transgress before the collection?

This teaches us

the early tanna:

that the placing is a matter in itself.

That is, the prohibition “You shall not place” is transgressed already from the time the interest is written in the note, for the very act of “placing” the interest. This prohibition cannot be rectified by tearing the note; therefore one receives lashes for it.

This too is logical:

The Gemara brings a proof for the reasoning of the early tanna: that the prohibition “You shall not place” concerns the very “creation of the interest” [that is, from the time of the loan and the writing of the note] and does not depend on the collection of the interest.

As we learned —

in the Mishna at the end of the chapter:

“And these transgress a prohibition: the lender and the borrower, the guarantor and the witnesses.”

And it is necessary to understand:

Granted, all of them,

the lender, the borrower, and the guarantor,

performed an act

they have a connection to the act of collecting the interest. Therefore they transgress the prohibitions of interest. -

The lender collects from the borrower; he transgresses “You shall not take” and “You shall not give.” -

The borrower gives into the lender’s hand; he transgresses “You shall not make your brother pay interest.” -

The guarantor pays the interest to the lender, and then collects interest from the borrower as well; he too is connected to the act of collection. His prohibition is like the prohibition of the lender and the borrower.

Rather, witnesses—what did they do?

In what way are they connected with taking the interest, and why are they prohibited under the prohibition, “You shall not place interest upon him”? For according to Rabbi Nehemiah, the prohibition “You shall not place interest upon him” too is conditional upon collection of the debt; and what connection do witnesses have with collection of the debt!?

Rather, conclude from it that placing is a substantive act,

which proves from here that the witnesses transgress the prohibition “You shall not place” already from the time of drawing up the document! If so, the same law should be said regarding the lender and the guarantor: that they transgress “You shall not place” immediately upon fixing the interest, in accordance with the view of the first tanna.

And we conclude:

Conclude from it.

Indeed, it is a valid proof .

Rav Safra said,

If you wish to know which interest is recoverable in court and which interest is not recoverable in court, take this principle in your hand:

Every

interest

that, had it been according to their laws,

would be legally applicable among the nations of the world, and they

extract it

from the

borrower for the lender

—that is, interest fixed between them.

This interest,

according to our law,

if the lender has already collected it in prohibition,

is returned from the lender to the borrower.

That is, it is recoverable in court.

And every “

interest”

that, had it been according to their laws, they would not extract from the borrower for the lender, according to our law they do not return from the lender to the borrower.

Abaye said to Rav Yosef: And is it a general principle?

But

the lending of a

se'a

of produce

for a se'a, which according to their laws

among the nations of the world creates an obligation to return a se'a of produce, and

they extract it

from the

borrower for the lender

even if the price rose between the lending and the repayment.

And

despite all this,

according to our law

the interest of a se'a for a se'a, since it is prohibited only by rabbinic law, is subject to the rule that

they do not return it from the lender to the borrower,

like the law of the dust of interest, which is not recoverable in court?

He said to him,

Rav Yosef said to Abaye: The case of a se'a for a se'a does not constitute a contradiction to Rav Safra’s principle, because when the gentiles collect the interest of a se'a for a se'a, this is not in the category of “interest.” Rather,

they

the gentiles regard the lending of a se'a as though

it came into his possession in the form of a deposit

of the borrower, and he must return the se'a as it is, whether it appreciated or whether it depreciated.

Ravina subsequently raises an objection to Rav Safra’s principle from the law of “a mashkanta without deduction”:

The law of a mashkanta without deduction is as follows: The lender lends money to the borrower on condition that the borrower place a vineyard at his disposal for the period of the loan, for consumption of its produce, and in such a manner that the consumption of the produce does not repay part of the sum of the loan, but is given in addition to the sum of the loan. By Torah law, this matter is permitted, since the right to consume the produce is not guaranteed, for perhaps the vineyard will be struck and will not produce any fruit at all during this period. But the Sages prohibited it because of the “dust of interest.” And we have learned that the dust of interest is not recoverable in court.

Ravina said to Rav Ashi: But the case of “a mashkanta without deduction,” which according to their laws

among the nations of the world—if the borrower consumed the produce of his vineyard instead of giving it to the lender, as in the practice of “a mashkanta without deduction,”

they extract from the lender for the lender

the value of the produce that he consumed.

If so, according to Rav Safra’s principle, it should follow by law that according to our law, if the lender consumed it in prohibition, we should recover this interest in court,