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Babylonian Talmud: Tractate Baba Mezi'a
[Take thou no usury of him, or increase: but fear thy God;] that thy brother may live with thee; [implying] return it to him, that he may be able to live with thee.
Now how does R. Johanan interpret, 'that thy brother may live with thee?' — He utilises it for that which was taught: If two are travelling on a journey [far from civilisation], and one has a pitcher of water, if both drink, they will [both] die, but if one only drinks, he can reach civilisation, — The Son of Patura taught: It is better that both should drink and die, rather than that one should behold his companion's death. Until R. Akiba came and taught: 'that thy brother may live with thee:' thy life takes precedence over his life.1
An objection was raised: If their father left them usury money, though they know it to be usury, they are not bound to return it. [This implies,] But their father is bound to return it!2 — In truth, their father too is not bound to return it: but because the second clause desires to state, 'If their father left them a cow, or a garment, or any distinguishable object [received as interest], they must return it for the sake of their father's honour,' the first clause too is taught with reference to them.3 But are they then bound to make restitution for the sake of their father's honour? [Why not] apply here, Thou shalt not curse a ruler of thy people,4 [which means], only if he acts as is fitting for 'thy people'?5 — It is as R. Phinehas [in another connection] said in Raba's name: If he repented; so here too, [we deal with a case] where he repented. But if he repented, how came it [the money] to be still in his possession?6 — He died before he had time to return it.
An objection was raised: Robbers, and those who lend on usury, even when they have exacted it, must make restitution. Now, how can 'even when they have exacted it' apply to robbers? If it is robbed, it is robbed; and if not, can you call them robbers? But say thus: Robbers; and those meant thereby are those who lend upon usury, even when they have exacted it, must make restitution! — It is a dispute of Tannaim. For it was taught: R. Nehemiah and R. Eliezer b. Jacob exempt the lender and the surety [from punishment],7 because they have a positive duty.8 Now, what is meant by a 'positive duty'? Surely that we bid them, 'Arise and return [the usury];' from which it follows that the first Tanna9 maintains that they are not bound to make a return.10 No! By 'positive duty' is meant [that they are bid] to tear up the bond [of indebtedness].11 But what is his12 opinion? If he maintains: A bond, which is destined to be exacted, is as though it were already exacted,13 they have [already] committed their transgression!14 Whilst if it is not as already collected, they have committed no wrong!15 — In truth, in his view a bond, destined to be exacted, is not as though already exacted, and what he teaches us is that the [mere] 'putting on' [of usury] is a transgression.16 This also stands to reason. For we learnt: The following transgress the negative injunction: the lender, the borrower, the surety and the witnesses.17 Now, with respect to all, it is well, [since] they commit an action. But what have the witnesses done? Hence it surely must be that the [mere] 'putting on' [of usury] is a substantial act [and in this case, a transgression]. This proves it.
R. Safra said: Wherever by their law [i.e., non-Jewish law] exaction is made from the debtor for the creditor, restoration is made by our law from the creditor to the debtor; wherever by their law there is no exaction from the debtor to the creditor, there is no restoration by our law from the creditor to the debtor. Said Abaye to R. Joseph: Now, is this a general rule? Behold, there is the case of a se'ah [lent] for a se'ah which, by their law, the debtor is forced to repay the creditor, yet by ours it is not returnable from the creditor to the debtor!18 He replied, They [regard it] as having come into his possession merely as a trust.19 Rabina said to R. Ashi: But mortgages without deduction,20 which by their law is exacted from the debtor for the creditor,21
Baba Mezi'a 62b
yet by our law is not restored from the creditor to the debtor?1 — He replied: They [regard it] as having come into his hand by the law of purchase.2 Then, when R. Safra said, 'Wherever by their law, etc.', what did he mean to tell us?3 — [This]: 'Wherever by their law exaction is made from the debtor for the creditor, restoration is made by our law from the creditor to the debtor;' this refers to4 direct interest, and in accordance with R. Eleazar.5 'Wherever by their law there is no exaction from the debtor to the creditor, there is by our law no restoration from the creditor to the debtor;' this refers to prepaid and postpaid interest.6
E. G., IF ONE PURCHASED WHEAT AT A GOLD DENAR PER KOR, WHICH WAS THE CURRENT PRICE etc. But what does it matter if he has no wine? Did we not learn:7 One must not fix a price [for produce] until the market price is known;8 once the market price is established, a fixed price may be agreed upon, for even if this [vendor] has no stock, another has?9 — Rabbah replied: Our Mishnah refers to the creating of a debt for the value thereof.10 And as it has been taught: If one was his neighbour's creditor for a maneh, and he went and stood at his [the debtor's] granary and demanded, 'Give me my money, as I wish to purchase wheat therewith;' to which he answered, 'I have wheat with which to supply you; go and calculate [the amount] at the current price, and I will furnish you with it, [spreading it over] the whole year,' — that is forbidden, because it is not as though the issar11 had come to his hand.12 Abaye said to him: If the reason [in the Mishnah is that] it is not 'as though the issar had come to his hand,' why particularly [state the case] where he has no wine? Even if he has, it is also [forbidden]!13 But, said Abaye, our Mishnah is as R. Safra learnt in the collection of Baraithas on interest of the college of R. Hiyya. For R. Safra learnt in the collection of Baraithas on interest of the college of R. Hiyya: Some things are [essentially] permitted, yet forbidden as [constituting] an evasion of usury. How so? If A requested B, 'Lend me a maneh;' to which he replied, 'I have no maneh, but wheat to the value thereof, which I will give you;' and thereupon he gave him a maneh's worth of wheat, [calculated on the current price] and repurchased it for twenty-four sela's;14 now, this is [essentially] permitted, yet may not be done on account of evasion of usury. So here [in the Mishnah] too: e.g., A said to B, 'Lend me thirty denarii,' to which he replied, 'I have not thirty denarii, but wheat for the same, which I can give you.' He then gave him thirty denarii's worth of wheat [calculated at the current price] and repurchased it for a gold denar.15 Now,16 if the debtor has wine, which he gives him against the thirty denarii, he [the creditor] merely receives provisions from him, and there is no objection; but, if not, since he has no wine, to receive money certainly smacks of usury.17 Raba said to him: If so [instead of], GIVE ME MY WHEAT, the Tanna should state, 'Give me the money for my wheat'!18 — Read: 'the money for my wheat.' [Instead of,] AS I WISH TO SELL IT, he should state, 'Which I sold you.' Read: 'which I sold you.' THE WHEAT SHALL BE ACCOUNTED AS A DEBT TO ME OF THIRTY DENARII — but from the very beginning, had it not been fixed thus against him?19 — He said thus to him, 'For the value of your wheat which you have accounted against me at thirty denarii, you have a claim of wine upon me', whereas he [the debtor] has no wine. But it is stated, [IF A MAN PURCHASED WHEAT] AT A GOLD DENAR PER KOR, WHICH WAS THE MARKET PRICE!20 But, said Raba,21 when I die, R. Oshaia will come to meet me,22
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