Bava Metzia 70a (ע.) — the Talmud in English

And the sons of the pitch-workers had the custom

—the owners of ships [and because they coat them with pitch, they are called the sons of the pitch-workers]—to give

rent

, meaning that the renter pays the rent when he draws the ship into his possession. And even though the lessor has already received the ship’s rent, it is permitted for the renter to accept upon himself the cost of

damage

, so that if the ship breaks or is damaged, he will pay the loss. And he need not be concerned about the prohibition of interest, in accordance with what Rav said.

And we raise an objection:

Does the matter depend on a custom!?

Is this a reason to permit it merely because that is what people customarily do!?

And we answer:

Because the beraita taught a custom!

That is, the permission is like what we learned above: it is permitted because he does not establish a monetary value for the animal during its lifetime. Therefore, they followed this practice in accordance with the beraita and in accordance with the opinion of Rav.

Rav Anan said that Shmuel said: The money of orphans is permitted

for the court or the guardian

to lend at interest.

Rav Naḥman said

to Rav Anan: Is it because

they are orphans that we should force-feed them a prohibition

, compelling them to partake of the prohibition of taking interest!? After all,

orphans who eat that which is not theirs should follow their father who left them!

Orphans who eat from property that is not theirs should follow their father who left them—to the grave. One may not permit for orphans the Torah prohibition of interest.

He said to him

—Rav Naḥman said to Rav Anan:

Tell me a little

[my dear],

what was the actual incident?

Tell me what the case was from which you learned that Shmuel permitted lending the orphans’ money at interest.

For certainly, the statement that you cited in Shmuel’s name was not explicitly stated by him. Rather, you saw him act in a certain manner and inferred this ruling from his conduct.

He said to him

—Rav Anan said to Rav Naḥman:

There was that large cauldron

, a large copper vessel,

belonging to the sons of Mar Ukva.

They were minor orphans, and they had inherited this vessel from their father, Mar Ukva.

It was

this vessel

in

the house of

Mar Shmuel

, who was the guardian responsible for this vessel belonging to the orphans.

And Rav Anan learned from Shmuel’s actions that it is permitted to lend the orphans’ money at interest, because this was Shmuel’s practice with this vessel: he

weighed it

, in order to determine the weight of its copper,

and gave it

, renting it out for payment as profit for the orphans.

At the end of the rental period, when the renter returned the cauldron, Shmuel

weighed it

—he weighed it again—

and took it

, taking back the cauldron and comparing its weight at the time of its return with its weight at the time of the rental, and he

took the rent

, collecting the rental fee,

and

also

took the depreciation

, the value of what had diminished from the copper as a result of using the vessel.

Rav Anan learned from this that it is permitted to lend the orphans’ money at interest. For otherwise, how could Shmuel have acted in this manner? The law is that if one rents an ordinary object, which does not belong to orphans,

if he takes the rent

, he

may not

take

the depreciation, and if

he takes the

depreciation, he may not

take the

rent.

Here, since he takes the loss of copper that diminished during use, the matter resembles a renter who accepts responsibility, and he must make up to the owner whatever is missing from the object. This is like a loan in which the lender has no possibility of loss, while the payment is interest. From here Rav Anan concluded that it must be permitted to lend the orphans’ money at interest.

He said to him

—Rav Naḥman said to Rav Anan:

In a case such as this

,

even with adult orphans

, whose beards have grown and for whom, according to your reasoning, there should likewise be no permission,

it would also be permitted to act in this manner.

And the reason is that

they accept upon themselves

the orphans, who are the lessors,

the loss of the copper

, the existing diminution of the copper,

for however much the copper is reduced

—the copper of the vessel that is consumed by the fire through the renter’s use—

is deducted from its value.

They do not pay for the existing copper’s loss in value, even though they pay for the missing copper by weight. Since the owners bear a possibility of loss in the matter, this is not a loan but a rental, and the payment is not interest. It is as we learned above: “But they said: If one appraises a cow for another, it is permitted,” and as was explained there, because the owner bears a possibility of loss if the cows decline in value, and therefore it is not a loan.

The Gemara therefore remains with Rav Naḥman’s rejection of Rav Anan’s statement: It is forbidden to lend the orphans’ money in a complete loan at interest. The continuation of the Gemara’s discussion concerning this matter is as follows:

The Sages taught: Rav Ḥisda said in the name of Rabba bar Sheila—and some say that Rabba bar Yosef bar Ḥama said in the name of Rav Sheshet: The money of orphans is permitted to be lent.

Not as a complete loan, but through an investment arrangement, in such a manner that it will be

close to profit

for the orphans, so that they receive a share of the profits of this venture according to the agreement between them, while, on the other hand, it will be

far from loss

, meaning that it is stipulated in the investment arrangement that all responsibility for losses rests with the recipient and not with the orphan lenders.

Ordinarily, this would certainly be forbidden, as was already explained above: When the investor has no possibility of loss at all, it is a loan, and the payment is interest.

However, this interest is not prohibited by Torah law; rather, the Sages prohibited it. With orphans, they did not impose the decree, so that their money would not be depleted, since they do not know how to engage in business with it.

The reason this interest is permitted by Torah law is that if the venture produces no profit at all, the principal returns to the orphans without interest. Only if there are profits do the orphans take a share of them. Therefore, this is not “fixed” interest, which is prohibited by Torah law, like the interest mentioned at the beginning of the chapter: “One who lends a sela for five dinars,” where a definite amount of interest is fixed.

In the continuation of the Gemara’s discussion, the subject is every person, not orphans; afterward, the discussion returns to the matter of the orphans’ money.

The Sages taught:

One who places his money in an investment arrangement under conditions in which the investor is

close to profit

, meaning that if there are profits he takes his share of them,

and

on the other hand is

far from loss

, meaning that all responsibility was placed upon the recipient of the money.

This man is

wicked,

because this is a loan and not a rental. Any portion that he takes from the profit beyond the principal is interest.

But when the arrangement is such that the provider is

close to loss,

meaning that he too shares responsibility if the business incurs a loss,

and

conversely imposes upon himself the stringency of being

far from profit,

taking from the profits less than his share corresponding to his responsibility for the transaction, and imposing a greater stringency upon himself than the enactment of the Sages [above, 68b], namely, half in the event of loss: if responsibility is divided half and half, then he takes two-thirds of the profit—the recipient takes two-thirds of the profit and the provider one-third, in payment for the recipient’s work with the provider’s share. And this person distances himself even further from profit; he is

pious,

conducting himself piously with his Creator and going beyond the letter of the law in order to avoid the prohibition of interest.

Close to both,

to loss and to profit, is one who follows the enactment of the Sages and assumes two-thirds responsibility for the business if it incurs a loss, and therefore is close to loss; and likewise, with regard to profit, he does not take two-thirds as he does in the event of loss, but half. This is permitted in accordance with the enactment of the Sages.

Or when he is

far from both,

following the other enactment of the Sages mentioned above, according to which he does not take half the profits but one-third, and in this respect he is far from profit, as he does not take half,

while with regard to losses he assumes responsibility for half the transaction if it incurs a loss. And since loss is uncommon whereas profit is common, in this respect he is considered far from loss.

This is the measure of every person

and is permitted in accordance with the enactment of the Sages, in the discussion above, 68b–69a.

Rabba said to Rav Yosef: What do we do with this money belonging to orphans?

For these orphans are minors and do not know how to engage in business with their money so that it will not be depleted.

He said to him,

Rav Yosef said to Rabba:

We place it with the court, and we give them one zuz at a time,

according to their needs each day.

He said to him,

Rabba said to Rav Yosef:

But

in this manner

the principal will be depleted!

The principal of the orphans’ money will be depleted in this way.

He said to him,

Rav Yosef said to Rabba:

Master, what should one do

in order to safeguard their money so that it will not be depleted?

He said to him,

Rabba said to him:

We examine a man who possesses refined gold,

pieces of silver and gold, and it is certain that this merchandise is not in his possession as a deposit, but belongs to him, because it is not customary to deposit pieces of gold and silver.

And we take gold from him. And we give them

the orphans’ money,

to him,

to this man as a transaction, arranged so that it will be

close to profit

for the orphans

and far from loss.

The orphans will receive their share of the profits, and if the business incurs a loss, responsibility will rest solely upon the recipient. For this reason, we take gold from him as collateral, from which the losses can be collected should they occur.

In general, this matter is prohibited by rabbinic decree, but in the case of orphans the Sages did not issue the decree, in accordance with the statement of Rav Sheshet above.

But

if he has neither gold nor silver, but only

a specific object, one may not

rely upon it as collateral from which to collect in the event of losses. This is because

perhaps it is a deposit

that is,

the specific object in his possession,

and its owner will come

the owner of the object

give identifying marks and take it,

and the orphans will then suffer a loss, as there will be no source from which to collect the losses.

Rav Ashi said: It works

that it is possible to act in accordance with Rabba’s statement

if a man who possesses refined gold is found.

But what shall we do

if a man who possesses refined gold is not found?

Shall

the orphans’ money be depleted?

Rather, Rav Ashi said:

There is another possibility for safeguarding the orphans’ money:

We look for a man whose assets are stable,

a man whose property is secure and whose ownership of his land is not challenged by anyone.

And

this man must also be

trustworthy.

And

he must also be one who

accepts the law of the Torah.

And

further, one who

does not accept a rabbinic ban.

And we give them

the orphans’ money

to him through the court,

before the judges, as the court has the power to expropriate the recipient’s property on behalf of the orphans if the business incurs a loss. And the court stipulates with him that the transaction will be close to profit for the orphans and far from loss for them.

The following Mishna deals with a person who receives money or anything else from another person to engage in business, with the provider and the recipient dividing the profits that accrue from the business.

However, unlike the Mishna above (68a), where the recipient of the transaction assumed responsibility for only half the money , here he assumed responsibility for the entire amount of the transaction. This transaction is called “iron sheep,” to indicate that profits come to the provider from it like those that come from sheep, which produce offspring and wool for their owners . And it is called “iron” because it retains its value for the owners like iron, which is strong and never decreases in value. And since he accepted complete responsibility—that if the animals are forcibly lost or incur a loss, he will pay the owners—this business must be regarded as being in his possession as a complete loan, and whatever he gives the owners from the profits is prohibited as interest on the loan in his possession.