לעילוי נשמת

יואל אפרים בן אברהם עוזיאל זלצמן ז”ל

Question: During my learning, the following question came up. May I borrow a bag of potato chips in Manhattan—where it sells for $1—to pay back two bags of potato chips in Lakewood—where they sell for 50 cents each? Is this biblically prohibited, rabbinically prohibited or permitted?

Answer: We will use your assumption that the prices given are for each area, not only given stores. Do we care what the two bags to be returned cost in Lakewood, where they will be returned, or in Manhattan, where the loan was made?

The Shulchan Aruch (Yoreh Deah 173:17) rules that if Reuven lends a measure of fruit to Shimon where they are cheap and is to give back that measure where they are expensive, it is permitted only if Shimon already had that fruit in the second place at the time of the loan. The Machaneh Ephraim (Ribbit 22) assumes that this case has the potential for “ribbit ketzutza” (Torah-level ribbit violation) based on the added value in the new place (see over there how Shimon’s ownership of fruit in the second place helps). This indicates that the critical place for each item—the loan and return—is where it is given.

Your case is a variation of what the Gemara (see Bava Metzia 44b) calls, “seah beseah—when one lends an amount of a commodity in exchange for the same amount of that commodity later.” It is forbidden rabbinically, out of concern that at the time of the return, the commodity’s price might be higher—making the extra value ribbit. In our case, although the plan is to return chips of the same value as those that were received, the price of two bags in Lakewood might later exceed the $1 the bag in Manhattan was worth at the time of the loan. If our case only involves the rabbinic issue of “seah beseah,” any of three areas of leniency might permit it: “yesh lo,” “yatza hashaar” and neighbors who are not particular with each other (Shulchan Aruch and Rama, Yoreh Deah 162:1-3; see explanations in Living the Halachic Process II, F-5.)

This case differs from “seah beseah,” in that more of the commodity is to be returned than was given in the first place, which is generally “ribbit ketzutza” (see Vayikra 25:37). But is it really a problem if the value is the same?!

A critical question is why “seah beseah” is not “ribbit ketzutza” if the price does go up? 1) The Rosh (Shut 108:15) posits that it is not “ribbit ketzutza” when one returns effectively the same thing he received. 2) The Ramban (Bava Metzia 60b) and other Rishonim hold that according to Torah law, the time of the loan determines whether the loan violates ribbit. A subsequent rise in price is impactful only regarding rabbinic law. 3) It is unclear that the future will bring profit to the lender (Taz, Yoreh Deah 162:1; see variation on this in Netivot Shalom 162:1).

According to the Ramban and the Taz—given the expectations—there was no monetary benefit (which is what is important for them) at the time of the loan, nor was it certain for the future. The Rosh, though, stresses the equivalence of the commodity in “seah beseah,” so that in our case, if the price rises, the increase in both quantity and worth makes it “ribbit ketzutza.” If the value remains stable, it is unclear whether an increased volume with the same value makes it “ribbit ketzutza,” and it might depend on the language used (see Chavot Daat 161:1).

I have not found a halachic discussion of this case, and it is difficult to extrapolate based on the fundamental concepts, especially when there could also be rabbinic prohibitions. So, we will not try to give a psak for this theoretical question, but will give general advice regarding such questions of “seah beseah.” If objects of small value are involved, it is prudent to say the recipient is not required to return anything (most people’s propriety make them want to return); in which case, it is permitted to give even clearly more than he received (see Rama, Orach Chayim 170:13). If one is unwilling to take the chance of losing the money, he can make it a loan of the dollar value of what was given. Then, the borrower can give as much of the commodity as that amount of money can buy (see Brit Yehuda 17:14), when/where it is returned but not (noticeably) more value than he received.

Rabbi Mann is a dayan for Eretz Hemdah and a staff member of Yeshiva University’s Gruss Kollel in Israel. He is a senior member of the Eretz Hemdah responder staff, editor of Hemdat Yamim and the author of “Living the Halachic Process Volumes 1 and 2” and “A Glimpse of Greatness.”