Conceptual Analysis – Lesson 18

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[Rabbi Michael Abraham] Yes, right. I want to do the same thing with the concept of a loan. So let’s try to think in exactly this pattern about the concept of a loan. First of all, the context: now that I’m already aware of how conceptual analysis is done, when I ask myself how to look at this, this is just a lesson that’s very important to apply afterward when you approach learning Talmudic topics. Meaning, how do we approach learning something connected to a loan? First of all I want to know: what is a loan? People usually skip this stage. They go straight into, yes, so the Shakh says this and the Rashba writes that and Maimonides, and a dispute, blah blah. Wait, wait—just a second. What is a loan? What is a loan? That’s not at all a simple definition. And very few people deal with it. It’s not the kind of thing that usually occupies halakhic decisors or commentators—maybe in passing remarks, in obiters as they say, side comments—but there isn’t really discussion, or there’s very little discussion, of the thing itself. So I’m trying to apply the scheme we’ve developed until now to this matter. So I ask myself first of all: what is the category within which I place this thing called a loan? What family of things does a loan belong to? Money. What? Money. Yes—meaning transactions, or Choshen Mishpat basically, right? That’s why I say this is a continuation of the previous lecture. Basically, types of monetary transactions between people. Right? A loan is a certain kind of transaction. So notice, this is already an interesting point: if you internalize the scheme I’m talking about, then it’s very clear what needs to be done in principle. Meaning, you don’t have to reinvent the wheel every time. I look at a question, I enter a topic, and the first thing I want to know is: what is this concept, a loan? That’s a stage that, as we learned, usually isn’t done. So I say: okay, when I want to know what the concept of a loan is, what am I supposed to do for that? That too we already know. What do you need to do? Look for the category of things to which a loan belongs, and try to distinguish it from the other things under that same category. Right? That’s basically what we need to do. So now our goal—we’ve already identified the category: legal acts, legal assets between people, legal transactions between people. What distinguishes this transaction from other transactions? That’s what I need to complete in order to understand this concept of a loan. But before I get into that, I need to understand what a transaction is. What is a monetary transaction between people? Usually the classic transaction I want to talk about, before the big definitions—what’s the most typical transaction? A sale. Right? A transaction that has two sides: I give you money, you give me merchandise. Exchanging money for goods, okay? Or exchanging one thing for another. If you want, exchanging labor for wages—labor is also merchandise, okay? You can even betroth a woman through the benefit of labor that I do for her, or if I dance before her, because if I dance before her you can betroth a woman that way. So the basic structure of a legal transaction is an exchange of things between two sides, between two legal entities. Two people or two legal entities—it could be partners or a corporation, whatever—but an exchange of rights or an exchange of things between two sides. So I give you money, you give me a field; I give you money, you give me a cup, I don’t know; I give you a mug, you give me a book, okay? That too can happen—that’s also a kind of transaction. A transaction has two sides. You have something that I want, I have something that you want, and we exchange them, okay? We give one in return for the other. That more or less characterizes transactions, the typical transactions.

Now in that sense there is an exception: a gift. A gift is a transaction that really has only one side. I give you something but don’t receive anything from you in return. And in fact there’s an essay by some French philosopher named Marcel Mauss, published by the infamous Resling press, called The Gift. It’s an essay on the gift, and there he wants to argue that a gift is a transaction in every respect. When I give you a gift, it actually creates an obligation in you toward me. He talks, for example, about wedding gifts—we all know this: wait, what did he give me? And based on that I decide what I’ll give him. Meaning, of course we know that I’m not legally obligated, nobody can take me to court if I give less or something like that, but in fact when I give a gift it does create some expectation of reciprocity, at least gratitude. He really wants to argue that this is an obligation—he takes it a bit far—but there is a certain dimension of transaction even in giving a gift. But of course not in the formal sense. In the formal sense, if I got a gift from you, I owe you nothing in return. I’m not obligated; you can’t sue me for anything. Maybe I feel some moral obligation of one sort or another, but I’m not obligated. And therefore a gift really shouldn’t belong to Choshen Mishpat, because these are not monetary transactions between two people. So why do the laws of gifts appear in Choshen Mishpat? Here’s why: they appear there, but they appear differently from other laws. Let’s say the laws of loans are laws that determine the mutual rights of the two sides. Or torts: you damaged me—what rights are granted to me as a result of your damaging me? Okay? Or bailees—what are the mutual rights of the two sides in that transaction? In a gift there is no discussion of what rights the two sides have, because neither side has any rights. I decided to give you a gift, you received a gift, that’s it. So you won’t find in the Shulchan Arukh any discussion of the rights of the two sides in the laws of gifts. What do they discuss in the laws of gifts? Only the question of how you do it. There’s an act of acquisition, and what the consequence is: after you received the gift, now it’s yours and not mine, so I’m forbidden to use it, others are forbidden to use it. Meaning, the consequences of this are ordinary legal consequences. Once you got the gift, now it’s yours. And property law certainly belongs to Choshen Mishpat. Once it’s yours, others may not use it without permission, because I’m no longer the owner. So in that sense you need to define the legal status, the laws of ownership, and therefore it belongs in Choshen Mishpat. But you won’t find there any obligation to give a gift or prohibition on giving a gift, or all sorts of things of that kind. That’s irrelevant. There are no rights here. I owe you nothing and there is no prohibition to give anything; rather, if I decide to give, then I give. Choshen Mishpat only tells me how to do that so that the gift becomes legally acquired. Okay—how do you transfer it? For example, there are prohibitions on giving a gift to a gentile, a prohibition on giving a gratuitous gift to a gentile—"do not show them favor." Okay? Those prohibitions won’t appear in Choshen Mishpat. Those are prohibitions in Yoreh De’ah. Because it really isn’t relevant here; these are prohibitions imposed on me not because of your rights. It’s not that the gentile has no right to receive a gift and therefore I’m forbidden to give it—that’s irrelevant, there’s no right involved here. The Torah forbids me to give him a gift, a gratuitous gift. So that will appear in Yoreh De’ah, and indeed not in Choshen Mishpat. Therefore a gift occupies a place in Choshen Mishpat only in a very, very technical sense. Not in terms of rights—not like a loan, not like the laws of bailees, not like all the other laws, where the whole context is a legal context, a transaction between two sides. A gift is not. But of course it’s necessary to define how the act of acquisition is done, when it becomes yours, when it’s still mine. You have to define exactly when, what is the precise moment at which the gift passes from my ownership to yours. Those are legal questions, because they have implications for the rights and obligations of others with respect to that object, okay?

So now maybe we understand a bit better the concept of a transaction, with the gift as an exception that sharpens the concept in general. And now let’s try to see what happens in a loan, because we said that a loan is basically one type of transaction. So transactions are the category, and a loan is a particular type that differs from other transactions. Now let’s see what makes it unique. When you look at a loan essentially, a loan is actually a kind of gift—or, if you like, at the most basic level it’s lending in the sense of a gift. I lend you money, okay? I give you the money, you return it to me, so I didn’t really give you anything. In fact, you know that the prohibition of interest is defined in Jewish law—interest is defined in Jewish law as payment for the waiting period of money. What does that mean? You use my money, so the time during which I give you the money for your use is itself worth money. Pay me for that time, for the time during which you hold my money. You’re not paying me for my money, because I’ll get my money back. I didn’t give you the money; I left it for your use for two weeks, so pay me what should be paid for two weeks’ use of such an amount of money. The interest payment is basically rent on the money, renting out money. A loan is a kind of renting out of money—except that the Torah forbids taking interest. The Torah is basically saying you’re not allowed to rent out the money; you have to lend it. And lending means renting without money, okay? Without compensation. Not without money—I’m lending money here—but I don’t receive compensation for that lending. So in effect, the person standing opposite me received something from me, but he didn’t receive the money. The money is mine. What he received is time of use of the money—that’s what he got. Except that whatever he should have paid in return is defined in Jewish law as interest, and therefore we are forbidden to stipulate payment for the use of money. That’s an interesting question by the way: why? Why am I allowed to rent out anything else but forbidden to rent out money? What’s wrong with renting out money? I’m allowed to rent out an apartment, I’m allowed to rent out a car, I’m allowed to rent out a hammer or a drill, so why is it forbidden to rent out money? What’s the difference? Fine, interesting question. But the claim is this: although it isn’t true that this is a gift, what you receive from me is not the money. You receive from me the time during which you can make use of my money, or this money. And afterward you return me the money because your time is up. You received the money for a fixed time, okay? And in the meantime you can use it. Contrast that, for example, with a deposit. When I deposit my money with you, that’s something completely different, because there you have to keep that money in an envelope and you may not do business with it or use it, because there you’re a custodian, not a borrower. That’s the difference between a custodian and a borrower, even though in both cases I give you money and you give it back to me after two weeks. But the borrower receives the money for his use during those two weeks; the custodian has to guard the envelope for me—the envelope with the money—and return it to me after two weeks. In principle he has to return those same coins, not different coins of the same amount—in principle, okay?

So in effect it comes out like this: there is an element of gift here. The gift element is the value of the money, the use value of the money, or the time of use of the money. So you received money from me for a period of time. And what are you supposed to return to me? After all, this is a transaction, right? In transactions we said there are two sides. What are you supposed to return to me? In principle, interest. Interest is the payment for holding the money, for the waiting period of money. But there is no interest; the Torah forbids it. So basically this is a gift. The gift, again, is not the money—it’s the money-for-a-time, that is the gift. Time of use of the money, that’s the gift you receive. And in return there is no compensation. You don’t pay me for that anything, anything else. On the contrary, anything at all—even interest that is not monetary interest but verbal interest, yes? Somebody suddenly says hello to me; he never used to say such a warm hello to me. After I lent him money, suddenly he gives me some heartfelt blessing, hello. Forbidden—that’s verbal interest. He’s doing something because he received money, so that’s an extra compensation beyond the return of the money itself. That’s forbidden. Okay? In principle this is a transaction that is essentially defined as one-sided. I give him the money for a period of use, and he’s forbidden to pay me for that in any way. So in what sense is there a transaction here? Why is this a transaction? Here it’s not even like the discussions about gifts, of when you acquire it and so on, because there you have various objects given as gifts, each acquired differently. But here in a loan, the moment you took the money, you took the money. What is there to write here about the laws of loans? What’s relevant? Basically all of this should have appeared in Yoreh De’ah.

[Speaker E] It becomes relevant if he doesn’t want to pay it back.

[Rabbi Michael Abraham] Okay, then afterward it becomes relevant in the laws governing judges. If someone doesn’t want to repay, then the judges have to deal with it. Okay, so that’s in the laws of evidence—you need to discuss it there—but that’s not connected to the laws of loans. The laws of loans as such have nothing in them. But the laws of loans do appear in Choshen Mishpat; they do appear in Choshen Mishpat. Now look: in principle, although you receive the money for a period of time, the Talmud says in several places, “a loan was given to be spent.” What does that mean? The money that you received becomes entirely your money. You don’t have to return to me that same money itself—after all, you use it, you buy, you do transactions with it, and so on. You have to return to me the same amount but in other bills or coins, in principle, okay? So in fact you receive the money itself as a gift too, not only the time of use of the money. Why isn’t the money completely a gift? Because you have an obligation to repay. But again a problem arises here, because halakhically there is such a principle called “his act of acquisition has expired.” What does that mean? If I performed an act of acquisition—or betrothal, or whatever—and I want the acquisition to take effect only in a month, there’s no such thing. Once you did the act of acquisition, if something is supposed to take effect it has to take effect now. If it doesn’t take effect now, it won’t suddenly arise from nowhere in a month.

[Speaker E] Unless I made a condition.

[Rabbi Michael Abraham] With a condition it doesn’t work that way. Look in Beit Yishai, section 35 in the first volume—he elaborates there on why there is no problem of “his act of acquisition has expired” in the case of a condition. He argues that the obligation under a condition happens immediately. Even in a condition phrased as “if,” which is only supposed to be fulfilled when the condition is met—not in a condition of “on condition that,” which means from now—even there the obligation is basically created now. It’s just that, as he calls it, there’s a “destroying angel,” yes? Some kind of demon that keeps the legal effect suspended in the air, not letting it take effect yet until the condition is fulfilled. But the legal effect is created immediately. There is no such thing as a delayed legal effect. If you completed the act of acquisition, then now whatever can come into being must come into being; whatever does not come into being now will not come into being later. It’s kind of a physicalist conception, as though the legal act produces something, so once the legal act is over, if it didn’t get produced, how will it suddenly come into being a week later from nowhere? It’s somewhat similar to the view of physicists.

[Speaker F] There’s the whole Rabbi Shimon Shkop who explains this whole matter. Can’t hear? There’s the whole Rabbi Shimon Shkop who explains this whole matter. There’s the whole Rabbi Shimon Shkop who explains this whole matter with the condition until thirty days and so on and so on.

[Rabbi Michael Abraham] Fine, lots of people explain it, Rabbi Shimon Shkop too, yes. But on “his act of acquisition has expired” Rabbi Shlomo Fischer speaks about it. It reminded me, for example, of physicists. When we study physics in high school, how do we study it? Two masses standing at a certain distance exert a force on each other inversely proportional to the distance between them, right? The square of the distance. Yes—the field is inversely proportional to the distance, the potential; the force is by the square of the distance. It’s the product of the masses divided by the square of the distance. So ostensibly it comes out that there is what’s called action at a distance. There’s a mass here and another mass there, and they exert force on each other from a distance. But physicists don’t accept such a thing. There is no such thing as action at a distance. Meaning, if one mass acts on another, then apparently some wave is sent from this mass to that one, and that wave pulls it. They can’t act on each other at a distance. Action is never done at a distance; action is always an action of contact. And if the mass doesn’t touch the other mass, then it sends some agent to touch it and do what needs to be done. Those are gravitational waves, never mind, gravitons and things like that. So too with electrical force: when two charges stand opposite each other, the force between them is proportional to distance—to the square— inversely proportional to the square of the distance, the product of the charges divided by the square of the distance. And again, they basically send waves that pull each other; it’s not action at a distance. In a similar way, that’s the principle of “his act of acquisition has expired,” except here it’s on the axis of time, not the axis of distance. There cannot be action at a distance on the axis of time. Meaning, if I perform a legal act now, the result cannot arise from nowhere in a month. There has to be contact on the axis of time between the cause and the effect. The moment the cause occurs, immediately afterward the effect has to appear. If the effect didn’t appear immediately afterward, it won’t appear later, because there’s nothing to bring it about. After all, the cause has already ended. What will bring it? You see? That’s exactly the idea of action at a distance, except here the distance is on the axis of time, not the axis of space. In other words, there cannot be an action at a distance on the axis of time.

I return to loans. So how exactly, in a plain thirty-day loan, does your obligation arise in thirty days to return the money to me?

[Speaker F] You have my money?

[Rabbi Michael Abraham] No—that’s what I said, no, it’s not my money. “A loan was given to be spent”—you can do what you want with the money. In a month you have to return money to me. How is that born? You tell me it’s born from the act of the loan, which is basically a transaction. I give you money and in return you have to return me money, that same money—it doesn’t matter, some kind of exchange of the same amount of money I mean, not the same coins. Okay? The same sum of money. So yes, there is some sort of two-sided transaction here. I give you money and you undertake to return me money in a month. But even so, this obligation that suddenly arises out of nowhere in a month—that doesn’t work. It can’t happen. Because the act that created that obligation was done today. So how does an obligation suddenly arise in a month? Something must already be created now. That something is called a debt. I gave you money, and a debt is immediately created. Debt doesn’t mean that right now you must pay me. Debt means that right now you owe me. When do you have to realize the obligation, to repay the loan? In a month. But that month is no longer from nowhere, because the debt exists. The debt was created at the moment of the loan. The debt is the result of giving the money, and after a month the debt that already exists is the reason why now there is a practical obligation on you to repay the loan, meaning to clear the debt. Okay? That is the mechanism of a loan.

Now you see why a loan is a transaction. Because a loan is a two-sided transaction. And not regarding the payment for the waiting period of the money. The payment for the waiting period of the money—which is really what you received—that isn’t a transaction at all, that’s a gift; you receive it as a gift, because paying for it is interest. So how do we define the act of the loan? In order for the act to be legally valid, in order for me to succeed in creating your obligation to repay me, there is no choice, and what we do is define the loan as a transaction. And what we say is this: you received money, and I in return received a debt. A right was created for me against you. That right is called a debt. You owe me money. Okay? So what you return me afterward—that money—is your money. It’s not my money coming back to me. It’s your money. What I get when I gave you the money is not money back; it’s a debt. In thirty days you have an obligation to clear the debt, to nullify it, yes, to make it disappear. How do you do that? By returning the amount of money you received. That is the meaning of debt. By the way, parallel to that there is also a lien—another legal definition that also basically comes to ensure that in the end you really do return the money to me. A lien has two dimensions: there is a lien on the person and a lien on property. A lien on property is subject to a dispute whether it is Torah-level or rabbinic, but the lien on the person certainly exists. The person has to return my loan to me. And also his property—you can go after his property—that is certainly Torah-level, unrelated to whether lien is Torah-level or rabbinic. The Torah-level/rabbinic issue regarding lien is connected to the question of what happens if I already sold the field to someone and now suddenly the lender comes and wants to take the field from the buyer. That is the discussion whether it is Torah-level or rabbinic. But the lien on property, or the lien that exists on me myself and on my free assets—not property already sold—that is Torah-level. So this lien is also part of the laws of the transaction of a loan. But the whole definition of this thing as a transaction is a fiction. It’s not really a transaction. After all, essentially the only interest here is your interest as the recipient. I have no interest in this transaction. I would be very happy not to give you the money, not to receive a debt, and not to get mixed up in all the laws of debt collection. Do I need this headache? I have the money now; let it stay with me and that’s it. So it’s not really a transaction in the essential sense. It’s a transaction in which I give and you don’t give back—what Peres once called “give-and-give.” Not give-and-take, but give-and-give. I give you and receive no compensation. But because of the legal difficulties I described earlier, Jewish law defines this as a two-sided transaction. And therefore it appears in Choshen Mishpat. The two-sided transaction basically says: I give you money, and you give me, as it were—or there is created in you—a debt. That is the compensation I receive for the gift of the money. And again, this is not substantive compensation. I don’t want the debt and don’t want anything; I’d prefer not to give you the money at all. I gain nothing from it. But as a legal definition, it is the definition of a two-sided transaction. I give you money and you become obligated to me. A debt of yours toward me is created. That is basically the essence of the transaction of a loan.

All the obligations that accompany the transaction of a loan—for example, the prohibition of interest, or the commandment to lend to the poor, because there is such a commandment—all that will appear in Yoreh De’ah, not in Choshen Mishpat. Because in truth, in essence a loan is a gift. A gift of time, of the waiting period of the money. Okay? So essentially it isn’t a transaction at all. But the legal definition of a loan, so that it will be possible to implement this kind of monetary relationship between people, to create lender and borrower, requires us to define it as a two-sided transaction: I give you money and in return a debt to me is created in you. Now, there is a very interesting phenomenon here, because the Talmud in several places says that repayment of a debt is a commandment. A statement of Rav Pappa in several places. What does that mean? The Talmud says, for example, that since it is a commandment, coercion is applied. But we already saw that coercion regarding commandments is coercion without going after property, right? I beat you until you pay me the debt. Whereas coercion regarding a loan involves going after property. In that sense it’s like coercion in Choshen Mishpat. Another practical difference, the Talmud says, concerns orphans. Do orphans have to pay their father’s debt? We’re talking about money they inherited from their father. So the Talmud says: minors are not subject to performing commandments. Minors are not obligated in commandments. Repayment of a debt is a commandment. Minors are not obligated in commandments, so they are exempt. When they grow up, they will be obligated to pay. Obligated to pay, again—not from their own money, but from the property they inherited from their father.

Now again: this means that repayment is a commandment. That belongs not to Choshen Mishpat but to Yoreh De’ah. Because understand: if, for example, the father of those orphans stole from me and he has my cow in his possession, then I’m not interested in whether the orphans are minors. The cow is mine; I come to take it. It’s not a commandment upon them to return my cow. They have no commandment—they didn’t steal. Their father stole. “And he shall return the theft that he stole”—that commandment is on their father. They have no commandment at all. The claim here is monetary: my cow is by you, hand it over. I simply take it because it’s mine, not because they are obligated in commandments. But in a loan—I think if I asked you, you’d say it’s the same thing. What does the commandments of the orphans have to do with it? They have money that is mine; I want my hundred shekels. No. The Talmud says repayment of a debt is a commandment, and the orphans are not subject to performing commandments, so they don’t have to give. Wait—but there’s money of mine there! No, there’s no money of mine. The money is not mine. I gave the money as a gift, only there is a commandment after thirty days to return, or after a year, however long you decide—there is a commandment to give me a gift back. The orphans are not subject to performing commandments.

Now the point that emerges from this is really that on the one hand a loan very much looks like—maybe I’ll sharpen this a bit more. Suppose I promised to give you a hundred shekels. Just like that. I promised that in a month I’d give you a hundred shekels. And in a month I don’t feel like giving it, so I don’t. Can you sue me in a religious court? The answer is no. I promised; I didn’t promise to make it legally enforceable. I don’t owe you; you have no right to receive it. I promised to give. I swore to give. Not just promised—I swore that I’d give you. Even then you can’t sue me. The court will compel me to give so that I won’t violate “he shall not break his word,” by virtue of coercion regarding commandments. But that is coercion of Yoreh De’ah, not coercion of Choshen Mishpat. The laws of oaths appear in Yoreh De’ah, not Choshen Mishpat. It’s not like coercion where someone whom I damaged can sue me to pay him. Okay? But a loan, seemingly, is the same thing. You have a commandment to pay me a hundred shekels in a month. So plainly I should not have been able to sue you at all. The court might perhaps compel you to fulfill the commandment resting on you. But that’s not the case. A loan appears in Choshen Mishpat, and you can compel even by going after property if you don’t pay. So what is it? Is it a commandment? Is it a transaction? Is it a legal obligation? How should we relate to this thing? It’s some kind of hybrid creature, as if it’s a transaction but not really a transaction. It’s Choshen Mishpat but basically resembles Yoreh De’ah. What kind of animal is this?

So again, without getting into all sorts of disputes and details, I’ll present at least what I think is the bottom line. The bottom line is that, as I said earlier, from the conceptual analysis of a loan it came out as follows. In its essence, a loan is not a transaction. In its essence, a loan is a gift, and afterward there is a commandment on you to give me a gift back. It should have appeared in Yoreh De’ah. Why does it appear in Choshen Mishpat? Because in order to create your obligation to give me the money back, we have to define the act of the loan as a two-sided transaction. I give you money and in return receive a debt. Once it is a transaction, it belongs to Choshen Mishpat. Now Rav Pappa’s claim that repayment of a debt is a commandment basically means the following. At base, repaying the debt is a commandment. It is not a legal obligation; it is a commandment. But the Torah says that once you have the commandment to repay the debt, it also establishes a legal lien upon you. But all that is only if you have the commandment. The orphans, who are not subject to performing commandments, do not have the commandment of debt repayment. Since they do not have the commandment of debt repayment, the lien likewise does not exist. Because the lien is not really created by the transaction; the lien is created because the Torah gave a commandment, and the Torah fixed the definition of that commandment such that the one upon whom the commandment rests is legally obligated to the lender. A debt is created; the lender has, as it were, a right to collect the loan. But it all begins from the fact that this is a commandment. There is a very strange hybrid creature here inside this world of transactions and Choshen Mishpat.

Now I asked: why do we go after property in the transaction of a loan? After all, it’s a commandment. Seemingly this should be coercion like Yoreh De’ah: you need to force him to pay, but not take his money and give it to the lender. The answer: because this transaction, this loan, is defined as a transaction once someone is obligated in the commandment. And if you, the borrower, are obligated in the commandment to repay—repayment of a debt is a commandment—the Torah defines your obligation to repay as the lender’s legal right. But the Torah defined it that way. And now, since I have a legal right, we can go after property. So on the one hand, we go after property like any monetary transaction; on the other hand, the orphans are not subject to performing commandments—it’s a commandment, it’s Yoreh De’ah, not Choshen Mishpat—so they do not have to pay. Why? Because going after property is not really due to a transaction. It is defined as a transaction after the Torah determined that there is a commandment to repay. But that all applies only to someone upon whom the commandment to repay rests. The orphans do not have the commandment to repay, so the legal consequences that accompany it do not exist with respect to them, and therefore one also does not go after property. When they grow up, that’s something else. Now, that is the principled definition.

[Speaker B] Now I want to continue one more step further and say,

[Rabbi Michael Abraham] I mentioned earlier the Talmudic statement that “a loan was given to be spent.” Yes, therefore the Talmud says that if someone betroths with a loan, she is not betrothed. Meaning, I gave a woman a loan of a hundred shekels. Okay? Now she owes me a hundred shekels. Now I say to the woman: with this debt that you owe me, I want to betroth you. Meaning, take the hundred shekels that you owe me, and with that I betroth you. The Talmud says she is not betrothed. Why? Because a loan was given to be spent. What does that mean? It’s what I described to you earlier: when I gave you a loan of a hundred shekels, those hundred shekels are not my hundred shekels that happen to be in your possession. They are your hundred shekels. You can do with them whatever you want, give them as a gift, do transactions with them. In thirty days you’ll have to return me a hundred shekels. But those hundred shekels that you received became a gift. “A loan was given to be spent.” The money of the lender was given to be spent; you can spend it, you can do what you want with it. You don’t have to keep it for me and return it after a month. Usually people understand “a loan was given to be spent” to mean that the very coins I gave you become yours. But that doesn’t mean I don’t have with you a value of a hundred shekels that you owe me. You just don’t have to pay it specifically with those coins, but with any money you want. That is the usual conception of a loan. The usual conception of a loan is that yes, the money I gave you became entirely yours and you can do what you want with it. But still, I have with you the value of a hundred shekels—not specific hundred shekels. I have with you the value of a hundred shekels, and that is the debt you owe me.

[Speaker B] But look, it’s not so simple.

[Rabbi Michael Abraham] Maybe before I say why it’s not so simple: then why is “betrothing with a loan” invalid? Because in effect I didn’t give the woman anything; the things were already hers. The money I gave her is hers, so with what did I betroth her? What do you mean, I betrothed her with the debt? There was a value of a hundred shekels that she owed me and I waived it. That isn’t called a concrete transfer. You didn’t give her something concrete. And that’s usually how people understand it—that there is some rule in betrothal and also in acquisitions, because in acquisitions too you can’t acquire through a loan; the same law applies to a purchase just as with betrothal, because in order to perform an act of acquisition you need to give a concrete transfer. And the money you gave beforehand, which was a concrete transfer, is already hers. And the debt is not a concrete transfer. That’s how it is usually understood. But it seems to me that this is not the correct understanding. I want to argue, following the analysis I made earlier, that the money you received becomes entirely yours and I have nothing with you—not even the value of a hundred shekels. I have nothing with you. In a month you will have to pay me a hundred shekels. In between, what there is is a fiction of debt. You owe me a hundred shekels; in a month that will be realized in the form of your having to give me a concrete hundred shekels, but it is not correct to define it as if I presently have with you an abstract value of a hundred shekels. Then it becomes much clearer why you can’t betroth with a loan. Because what exactly does it mean to betroth with a loan? What am I giving her? She has nothing there that is mine that I am now giving her. At most you can say that I forgave her the obligation that in a month she would have had to pay me, to give me back a gift of a hundred shekels. That is not called giving. That is called waiving something that in the future she would have had to give. It’s not that she received something from me; rather, I prevented her loss. In halakhic jargon that is called driving away a lion. I basically drove a lion away from her. Think of a case where a lion comes to devour your lamb, and I fought the lion and saved the lamb for you. Did I give you something? The lamb was yours and remained yours; I didn’t give you anything. I prevented a loss for you. I didn’t give you some addition you didn’t have before; I prevented a potential loss. That is called driving away a lion. The claim is that in betrothal with a loan, when I want to tell her, okay, so in a month you won’t have to give me a hundred shekels, that is not called giving her something. I drove away from her the lion that would have taken a hundred shekels from her in a month. That isn’t called giving; it’s called preventing a loss. Because the assumption—and this is the perspective—is that right now all that money is hers and I have nothing at her disposal. In a month a lion will come and devour a hundred shekels from her; she will have to give me, from her own money, a gift of a hundred shekels, and that is what I prevented. I saved her from that future lion. Okay? That is not called giving. Therefore you can’t betroth that way, and you can’t acquire that way with monetary acquisition, because she received nothing.

I’ll give another example. The Talmud in tractate Nedarim, for example, says that someone who is forbidden to derive benefit from his fellow may nevertheless repay his debt. Meaning, suppose Yossi is forbidden to benefit from me. Okay? I imposed on Yossi a prohibition to benefit from my property; he may not benefit from my assets. Now I know that Yossi owes money to Avraham, so I go to Avraham and pay Yossi’s debt. Am I allowed to do that? After all, he is forbidden to benefit from my money. The Talmud says yes, and so too it is ruled in Jewish law—yes, it’s allowed. What’s the explanation? The Talmud explains in Nedarim 33, I think, that it is because he is merely driving away a lion. What does “driving away a lion” mean? It means that I didn’t actually give Yossi anything. I removed from him a potential loss that was expected to happen to him in a month. In a month Avraham would have come and taken a hundred shekels from him—but he would have taken from him a hundred shekels that are now entirely Yossi’s, not Avraham’s. And therefore in fact Yossi had a hundred shekels and remained with a hundred shekels. When I repaid his debt to Avraham, what I actually did was prevent the potential loss that he would have had to lose a hundred shekels. That is not called giving him anything. There isn’t with him a hundred shekels that he received from me; rather, I merely prevented a possible loss of a hundred shekels. That is not called benefit, and that is permitted even in a case of one forbidden to derive benefit. I think this is an excellent proof for this conception of a loan. Because it means that when I say you owe me money, that doesn’t mean that with you there is a value of a hundred shekels that belongs to me. Because then I gave you money, it belonged to me, and now I transferred it to you. That’s not driving away a lion; I gave you value. But if not, I claim—what nonsense, there’s nothing with you. There is only the fact that in a month there will arise upon you a commandment to give me a hundred shekels. That commandment is what I neutralized. So I prevented your loss; I didn’t give you money. Preventing a loss is not a transfer that can betroth a woman. The fact that I prevented a woman from suffering a loss isn’t called betrothing her. In order to betroth her, you have to give her something, not prevent her losses. Therefore with a debt one cannot betroth. Because when I waive her debt, I haven’t given her anything; I only prevented her loss resulting from the future commandment that was expected to rest on her, that she would give me a hundred shekels.

And then we arrive at a very interesting definition of the concept of a loan. In fact, the debt that is created against the money is not even what people usually think on the legal plane—a value of a hundred shekels of mine that is with you. Not specific hundred shekels, but the value of a hundred shekels. No. Rather, it is a kind of potential for a future commandment to give me a hundred shekels. A potential that in a month will generate a commandment upon you to give me a gift of a hundred shekels. That is what is called debt. Therefore, if I waive your debt, it is only driving away a lion; it is preventing a loss. It isn’t giving you anything. If you had with you a value of a hundred shekels of mine and I waived it, then that value would have been mine and become yours—I would have given you something. But waiving a loan isn’t giving anything. Let me maybe give you—this is what I started saying earlier—why the ordinary conception of a loan is problematic. Suppose you have a thousand shekels and you borrowed from me; you owe me a hundred shekels, you borrowed a hundred shekels from me. You have a thousand shekels. Now you go and give a thousand shekels as a gift to someone else, and you’re left with nothing to repay me. Are you allowed to do that? Are you allowed to give him a thousand shekels? The answer is yes. There is nothing there that is mine—not even an undefined hundred shekels within the thousand. One might have thought to say that this is like a kind of selection, yes? That some particular hundred shekels within the thousand are mine, without defining which hundred shekels. If that were the definition, then you would have been allowed to give away one hundred and another hundred and another hundred up to nine hundred, but in the end the last hundred remaining with you would already be forbidden to give away, because they would belong to me. But the claim is that halakhically you are allowed to give away the entire thousand shekels as a gift. That means that I do not have with you a hundred shekels—even an undefined hundred shekels I don’t have with you. So what is debt? Debt is a potential that will give rise to a commandment upon you to give me a gift back in a month.

Okay, we’ll stop here. I’ll continue a bit next time. As I said, we’ll finish the subject of loans, and after that we’ll discuss what money is, monetary acquisition, barter, all the simple things—understanding the foundations. What are transactions? What is Choshen Mishpat? Conceptual definitions of the basic concepts. Okay. Thank you very much. If anyone wants to comment or ask, you can. Very difficult.

[Speaker D] What? Very difficult. Can’t hear. It’s very difficult. This whole line of thought is really hard. Nice.

[Rabbi Michael Abraham] Okay then, all the best, goodbye, Sabbath peace.

[Speaker B] Goodbye, Sabbath peace.

[Speaker D] Peace.