Bava Metzia 70a — the Talmud in English

And the people of kufra were accustomed

—the owners of ships [and because they coat them with tar, they are called the people of kufra]—to give

rent.

The renter gives the rent at the time of drawing the ship, and even though the owner has already received the rent for the ship, it is permitted for the renter to undertake the payment of

damage,

that if the ship breaks or is damaged, he will pay the loss. And he is not concerned on account of interest, as Rav said.

And we challenge this:

Does the matter depend on a custom!?

And is the fact that they were accustomed to do so a reason to permit it!?

And we answer:

Because of the beraita, the tanna taught a custom!

That is to say, the permission is as we learned above: because he does not establish its monetary value during the animal’s lifetime; therefore they conducted themselves this way in accordance with the beraita, and in accordance with Rav’s position.

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

for the court or the guardian

to lend it at interest.

Rav Nahman said to him

to Rav Anan: And is it

because they are orphans that we force-feed them a prohibition,

that we force them against their will to take interest!? Surely,

orphans who eat what is not theirs should go after those who left them!

Orphans who eat from what is not theirs should go after their father who left them, for burial. And one should not permit a Torah prohibition of interest for orphans.

He said to him

Rav Nahman to Rav Anan:

Tell me, please

[my dear],

what was the substance of the incident, how was it!?

Tell me what the case under discussion was, from which you learned that Shmuel permits lending the orphans’ money at interest.

For certainly, the statement that you said in Shmuel’s name was not explicitly stated; rather, because you saw him conducting himself in this way, you testified that this was his position.

He said to him

Rav Anan to Rav Nahman:

That large cauldron,

a large cauldron that belonged

to the sons of Mar Ukva.

And they were minor orphans, and they inherited this utensil from their father, Mar Ukva.

That was

this utensil

with

in the house of

Mar Shmuel,

who was the guardian over this utensil belonging to the orphans.

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

weighed it,

weighing the utensil in order to know the weight of its copper,

and gave it to him,

and rented it out for money as profit for the orphans.

And at the end of the rental, when the renter returned the cauldron, Shmuel

weighed it,

weighing it again,

and took it,

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

and took the rent,

taking the rental payment,

and

also

took the depreciation,

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

And Rav Anan learned from this that it is permitted to lend the money of orphans at interest. For if not, how did Shmuel do this? Yet the law is that if one rents an ordinary object, which does not belong to orphans,

if he takes rent

he takes it,

he may not

take

depreciation, and if

he takes the

depreciation, he may not

take the

rent.

And here too, since he takes the deficiency of the copper that became deficient during its use, the matter resembles a renter who accepts responsibility, and he completes for the owners everything that became deficient from the object. This is like a loan in which the lender has no aspect of loss in the matter, and the payment is interest. From here Rav Anan concluded that it must be permitted to lend the orphans’ money at interest.

Rav Nahman said to him

Rav Nahman to Rav Anan:

In a case such as this,

in such a case,

even with adults,

adult orphans whose beards have filled out, for whom according to your words as well it should not be permitted,

it is also permitted to do this.

And the reason is

that the orphans accept upon themselves

the orphans, who are the renters,

the loss of the copper,

the existing deficiency of the copper,

for to the extent that the copper is diminished

the copper of the utensil that was consumed by fire through the renter’s use,

it decreases in value.

The value of the existing copper—and even though they pay for the deficiency of the copper by weight, they do not pay for this deficiency in the value of the existing copper. And since the owners have an aspect of loss in the matter, it is not a loan but a rental, and the payment is not interest, as we learned above: “But they said, one who appraises an animal for his fellow, and so forth, it is permitted”; and as was explained there, because the owners have an aspect of loss in the matter if the animals become cheaper, therefore it is not a loan.

And the Gemara remained with Rav Nahman’s rejection of Rav Anan’s words, and it is forbidden to lend the orphans’ money as a complete loan at interest. And concerning this matter is the continuation of the words of the Gemara:

Rabba bar Sheila said that Rav Hisda said, and some say that Rabba bar Yosef bar Hama said that Rav Sheshet said: The money of orphans is permitted to be lent.

Not as a complete loan, but as an investment, in a manner in which it will be

close to profit

for the orphans, so that they take a share in the profits of this business according to what was agreed between them; and, on the other hand,

distant from loss,

so that it is stipulated in the investment that all responsibility for losses rests on the recipient and not on the orphans who lend the money.

Ordinarily, this matter is certainly forbidden, as was already explained above: when the giver has no aspect of loss at all, it is a loan, and the payment is interest.

But this interest is not forbidden by Torah law; rather, the Sages prohibited it. And with orphans they did not enact the prohibition, so that their money would not be consumed, since they do not know how to engage in business with it.

And the reason that this interest is permitted by Torah law is that if the business does not profit at all, the principal returns to the orphans without interest. Only if there are profits do the orphans take a share in them; therefore this is not “fixed” interest, which is forbidden by Torah law, like the interest stated at the beginning of the chapter: “one who lends a sela for five dinars,” in which he fixes definite interest.

And in the continuation of the words of the Gemara, the matter concerns every person and not orphans, and afterward the discussion returns to the matter of the orphans’ money.

The Sages taught:

A person who places his money in an investment, under such a condition that the giver is

close to profit,

if there are profits, he takes his share in them.

And

on the other hand he is

distant from loss,

for all responsibility was placed upon the recipient of the money.

This person

is wicked,

because this is a loan and not a rental. And every share that he takes in the profit beyond the principal—that is interest.

But in such a manner that the one who gives is

close to loss,

for he too is a partner in the responsibility if the business is lost,

and

on the other hand, he is stringent with himself to be

far from profit,

taking in the profits less than his share of responsibility for the iska, and being more stringent than the enactment of the Sages [above 68b]: one-half in the loss. If the responsibility is divided half and half, then he takes two-thirds of the profit: the recipient takes two-thirds of the profit and the giver one-third, on account of the payment for the recipient’s work in the giver’s share. And this person distances himself further from profit; he is

pious,

who acts piously with his Creator and goes beyond the strict measure of the law, taking care to avoid the prohibition of interest.

Close to both this and that,

to loss and to profit, is one who conducts himself according to the enactment of the Sages, and takes upon himself two-thirds of the responsibility for the business if it is lost—and thus he is close to loss—and likewise, in profit, he does not take two-thirds as in the loss, but one-half. And this is permitted according to the enactment of the Sages.

Or in a manner in which he is

far from both this and that,

conducting himself according to the other enactment of the Sages that we mentioned above: that he does not take half of the profits, but one-third, and in this he is far from profit, since he does not take half.

And with respect to losses, he takes upon himself responsibility for half of the iska if it is lost. And since loss is not common and profits are common, for this reason he is considered in this to be far from loss.

This is the measure of every person

and it is permitted according to the enactment of the Sages in the discussion above, 68b–69a.

Rabba said to Rav Yosef: These coins of orphans, what do we do with them?

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

He said to him,

Rav Yosef said to Rabba:

We seat them before a court, and we give them one coin at a time,

according to their need each and every day.

He said to him,

Rabba said to Rav Yosef:

But

in this manner

the principal is being depleted!

The principal of their money is thus depleted.

He said to him,

Rav Yosef said:

Master, how does he act

in order to preserve their money so that it should not be depleted?

He said to him,

Rabba said to him:

We examine a man who has unworked gold,

pieces of silver and gold metal; and certainly 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

their money,

to him,

to this person in an iska, so that it will be in a manner of

close to profit

for the orphans

and far from loss.

For in the profits the orphans will take their share, and if the business is lost, the responsibility will be only upon the recipient. And for this reason they take gold from him as collateral, from which they will collect the losses when they occur.

And this matter, in general, is prohibited by rabbinic law, but with orphans they did not enact the prohibition, and in accordance with the words of Rav Sheshet above.

But

if he has no gold or silver, but only

a specified object, one may not

rely upon it as collateral from which they will collect if there are losses. This is because

perhaps it is a deposit

that it is,

the specified object in his possession,

and its owner will come,

the owner of the object,

give identifying marks, and take it,

this object; and it will turn out that the orphans have suffered a loss, since there will be no source from which to collect the losses.

Rav Ashi said: This works

that it is possible to act according to Rabba’s words

if a man who has unworked gold is found,

but what shall we do

if a man who has unworked gold is not found?

Should

the orphans’ coins be depleted?

Rather, Rav Ashi said:

There is another possibility for securing the orphans’ money:

we see a man whose property is settled,

a man whose properties are secure and undisputed, and no one challenges his ownership of his lands.

And

this man should also be

trustworthy.

And

he should further possess the quality that he

hears a Torah law.

And

further,

he does not receive a rabbinic ban.

And we give them

their money

to him in court,

before the judges, for the court has the power to declare the recipient’s property ownerless for the orphans if the business is lost. And the court stipulates with him that the business will be close to the orphans with respect to profit and far from them with respect to loss.

The following Mishna deals with a person who receives money or any other thing from his fellow to engage with it, and the giver and the recipient divide the profits that will come from the business.

However, unlike the Mishna above (68a), where the recipient of the transaction took responsibility upon himself for only half the money , here he took responsibility upon himself for the entire amount of the transaction. And this transaction is called “tzone barzel,” to say that profits come to the giver from it like those from sheep, for sheep produce offspring and fleeces for their owners . And it is called “iron” because it remains standing at its value for the owners, like iron, which is strong and never decreases from its value. And since he accepted upon himself complete responsibility—that if it is accidentally destroyed or lost, he will pay the owners—it is necessary to regard the business in his possession as a complete loan, and whatever he gives the owners from the profits is forbidden as interest on the loan that is in his possession.