Story LineShabbos RentalRabbi Meir Orlean
Mr. Neuman was celebrating the bar mitzvah of his son. Months before, he arranged with the gabbai, Mr. Gruber, to rent the shul’s function hall for the duration of Shabbos.
“For a full Shabbos, the hall costs $1,000,” said Mr. Gruber. “You can pay $200 now to reserve the hall and the remaining $800 after the simchah.” Mr. Neuman made out a check for $200 and gave it to Mr. Gruber.
Sunday morning after the bar mitzvah, Mr. Neuman thanked the gabbai for use of the hall and gave him an additional $800 check. “I heard that your celebration carried on till 11:30 p.m.,” he said.
“Yes, we had a very leibedig melaveh malkah,” replied Mr. Neuman. “It was a lovely simchah!”
“The $1,000 was for Shabbos itself,” said Mr. Gabbi. “Use of the hall on Motzoei Shabbos is a separate rental that carries an additional $250 payment. You were supposed to notify me if you wanted to use the hall also on Motzoei Shabbos.”
“We discussed the melaveh malkah and you said it would be included in the Shabbos rental, since there usually aren’t functions on Motzoei Shabbos in the summer,” said Mr. Neuman. “We paid you in full what we agreed on and we finished our usage. You can’t decide now to add. It was difficult enough, as is, to cover all the bar mitzvah expenses!”
“I’m not adding now,” said Mr. Gruber. “I remember telling you from the beginning that the $1,000 rental was just for Shabbos.”
“I wish we had a written record,” said Mr. Neuman. “Now, unfortunately, it’s my word against yours. The question is whether I must pay more and I’m in possession of the money. We should apply the rule of Hamotzi me’chaveiro alav haraayah — the burden of the proof is on the plaintiff!”
The two came to Rabbi Dayan. “Does Mr. Neuman have to pay the $250?” asked Mr. Gruber.
“The application of hamotzi me’chaveiro alav haraayah in your case is not simple,” replied Rabbi Dayan. “At first glance, it depends on when the dispute arose. If the dispute arose before the melaveh malkah, the shul is in possession of the hall and does not have to allow its use without additional payment; if the dispute arose after the melaveh malkah, Mr. Neuman is in possession of the money and does not have to pay extra. However, this is not so; the shul is considered in possession, regardless.”
“Why is that?” asked Mr. Neuman.
“The Mishnah (B.M. 102a-b) addresses the case of someone who rented a house for the year at $1,000 a month, $12,000 for the entire year,” explained Rabbi Dayan. “If the year turns out to be a leap year, the two terms are contradictory: does one follow the monthly term of $1,000 or the yearly term of $12,000? The Gemara concludes that the renter must pay for the extra month, even if the dispute arose only at the end of the year, after he already lived in the house for the extra month and the issue is whether he has to pay for it.”
“What is the rationale?” asked Mr. Gruber.
“The question is rooted in usage of the property, and real estate is always considered in the possession of its owner,” answered Rabbi Dayan. “Thus, not only when the dispute arose before the leap month, but even if the dispute arose after the renter lived there and hadn’t yet paid, the landlord is considered in possession and the tenant must pay for the additional month. The same is true for any other dispute, such as the length of the rental” (C.M. 312:15-16).
“In your case, the dispute is whether Motzoei Shabbos was included in the rental,” concluded Rabbi Dayan. “The shul is considered in possession. Thus, Mr. Neuman must pay the extra $250 for the melaveh malkah.”
From the BHI HotlineRibbis Awareness, Part II
Silent partner: Reuven buys an investment property, partnering with a silent partner who will not be recorded on the loan. As explained in the previous article, since the loan records only Reuven’s name, he is considered the sole borrower from the bank. The stipulation that the silent partner is responsible for his share of the loan is actually a loan from Reuven to the silent partner. Accordingly, Reuven may not be indemnified for any interest payments from the partner’s share or income (Y.D. 168:17; Taz, Y.D. 170:3).
Joint loan: A similar concern arises when partners take out a joint interest-bearing loan and their respective percentages of the loan are not equal. For example, Reuven and Shimon form a partnership in which Reuven owns 70% and Shimon 30%. When the partnership takes out a loan, they are equal partners to the loan: 50%-50%. But since Reuven owns 70% of the business and borrowed only 50% from the bank, he needs to borrow an additional 20% from Shimon so that he has funded 70% of the partnership (see Mishnas Ribbis 18:14). Even when they have equal shares in the partnership, there is a ribbis issue since each serves as guarantor for the other partner’s portion (Y.D. 170:1, Chavas Daas 1, S.A. Harav, Ribbis 64).
Credit card: Reuven has poor credit and Shimon agrees to open a credit card account that Reuven will use and make all payments. If Reuven pays interest or late fees, even if paid directly to the credit-card company, the prohibition against interest was violated. This is because Shimon borrows the funds from the credit-card company and lends those funds to Reuven. Reuven only borrowed from Shimon the amount of the initial charge. The interest that accrues is Shimon’s obligation to the bank and if Reuven makes that payment, he is repaying more than he borrowed.
This also occurs when one makes a friend an authorized user or when a partner uses his personal credit card for joint business. (Earning points on Reuven’s purchases is not an issue of ribbis.)
Therefore, to avoid uncomfortable situations, it is essential to be alert and proactive by drafting an appropriate heter iska.
Jewish banks and lending clubs: There are mortgage banks (e.g., ‘Quicken Loans’) and lending clubs (e.g., ‘WEBbank,’ which originates loans for the ‘lending club,’ and ‘Peerform’) that are owned by Jews who unfortunately do not have a heter iska, and therefore any interest-bearing transaction is halachically prohibited. (The prohibition arises specifically when they issue the loan; there is no issue if they merely service the loan.)
Lawyer, notary and mortgage broker: The lender, borrower, guarantor and witnesses violate the prohibitions against ribbis (Y.D. 160:1). Therefore, a lawyer drafting a document or a notary must be vigilant and refrain from servicing a ribbis agreement (see Shach, Y.D. 160:1). Included in this group is someone who brokers a loan between a Jewish lender and Jewish borrower (Shach, ibid. 1).
However, it is permitted to work as a mortgage broker for a non-Jewish lender since the broker is neither the lender nor a guarantor. This is permitted when it is clear that the broker is not lending his own funds (for examples see Shach 168:71 and Bris Yehudah 31:). If it is not clear, it is prohibited due to mar’is ayin (the appearance of impropriety [Y.D. 168:23]).
Investors: Investments may also involve ribbis even in the absence of a “loan.” Whenever the recipient guarantees principal, even if the investment suffers a loss, the investment is halachically a loan and prohibited (Y.D. 177:1). This is true even though the recipient does not guarantee any profits. This is a very common occurrence when the managing partner guarantees even part of the principal.
Money mattersQuitting Work#356
Q: I agreed to watch a child for the month, but want to stop in the middle. Can I quit if other caretakers will charge more?
A: Regarding a worker retracting after beginning work, there is a difference between a po’el (time-based worker) and a kablan (independent contractor).
A po’el, whose time is bound to the employer, is included in the exemption “Avadai heim — They are My slaves, and not slaves to slaves” (B.M. 10a). Therefore, you may quit even after beginning work and receive the proportional share of your salary, even if the employer has to hire someone else to finish the work at a higher salary. However, a kablan who retracts loses the difference (C.M. 333:3-4).
If you made a kinyan or signed a contract upon beginning the work, there is a dispute whether you can retract (Shach 333:14; Ketzos and Pischei Teshuvah 333:5). Similarly, there is dispute about whether the employee may quit based on “avadai heim” in order to work elsewhere (Pischei Teshuvah 333:4).