✦ ❖ ✦ D A A T · L E V E L 3 — S Y N T H E S I S / R E V I S I O N ✦ ❖ ✦
Siman 177 — “Iron flock,” the עסקא, and the dealings forbidden as interest
שלא יקבל צאן ברזל מישראל וכמה דיני משא ומתן האסורים משום רבית
Forty seifim — the longest siman in all of Yoreh De’ah, and the close of the interest block: the mechanism of the עסקא, the price of labour, the bearing of risk and what the deed must say
Revision structured by mechanism, psak tables, rapid memorization
Source: Shulchan Arukh, Yoreh De'ah קע״ז — 40 seifim
Nosei kelim: ש״ך (68 ס״ק) · ט״ז (45 ס״ק) · באר היטב (50 ס״ק) · פתחי תשובה (8) · נקודות הכסף (8) · בית יוסף · טור
Compiled by: הרב יוסף חיים סממה · DAAT
For students who have mastered Levels 1 and 2
daattorah.com
📑 Plan of the synthesis
- The axiom: not the sum, the slope
- The four reflex questions
- Map of the siman — the forty seifim in seven groups
- The three regimes of the wage for toil
- The map of liabilities: who bears what
- The dressings: what holds and what does not
- The operator: eight lines that define him
- Proof and speech
- The nine disputes in one line each
- Golden rules, mnemonic, pitfalls and flash card
1. The axiom: not the sum, the slope
The starting point: the siman does not judge sums, it judges slopes. Two men may share a profit equally with no interest at all; and two men may share a profit in a way perfectly balanced to the eye, and there is interest — because one of the two cannot lose. The phrase seif 1 writes in so many words, קרוב לריוח ורחוק להפסד, is the siman’s only measuring instrument.
And the corollary, forgotten more often than the axiom itself: the operator’s toil is a value. A man who works for free for his lender gives him something. That is why an עסקא in which the wage for toil has not been settled is dust of interest, even though the split is half and half.
2. The four reflex questions
1. Can either of the two lose?
If the financier is shielded from all loss, the split is vitiated however generous it appears — seif 1.
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2. Who works, and is he paid for the portion that is not his?
Without a wage for the toil, the deposit-half is worked for free by virtue of the loan-half: that is the very definition of the problem — seif 2.
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3. Is the return a share or a sum?
A share follows the risk; a fixed sum denies it. Seif 6, and the whole dispute of level 2.
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4. What exactly does the deed say?
Seif 24 forbids two ways of writing, and seif 25 judges the deed by its letter: here drafting does not dress the agreement, it is the agreement.
3. Map of the siman — the forty seifim in seven groups
The Shulchan Arukh follows its own order; revision, for its part, does better to follow the mechanism. The forty seifim fall into seven groups, and each group answers a single question.
A · The founding mechanism — 2 seifim
Why a profit-share can be interest: because one of the two can no longer lose, and because the operator works for free in the half that is not his.
| Seif | What it settles |
|---|
| 1 | Tsone barzel: once valued in money it can cost the owner nothing — forbidden, unless he takes back the risk of rise, fall and beast torn. |
| 2 | Every עסקא is half loan and half deposit; the operator’s toil in the deposit-half must be paid — כפועל בטל, or a dinar if he has another occupation. Rama: the whole deposit liability on the financier, accidents included. |
B · The price of the labour — 4 seifim
Three regimes according to what was agreed, and two gap-filling rules for what was not. The constant principle: the operator must always gain more than he loses, the difference being the price of his toil.
| Seif | What it settles |
|---|
| 3 | Fixed in advance, even a dinar suffices. If each brings money, it is not an עסקא but an ordinary partnership. |
| 4 | Nothing was fixed: the operator takes two thirds of the gain and bears a third of the loss (the Rambam’s arithmetic; the Shach at ס״ק י״ד reports most poskim — half the loss). |
| 27 | The unstipulated side is deduced from the other: a quarter of the gain stipulated yields a sixth of the loss; a quarter of the loss stipulated yields half the gain. |
| 28 | Neither gain nor loss: nothing if the wage depended on the profit; the wage out of the principal if it did not. |
C · The bearing of risk — 5 seifim
What the financier must keep upon himself, what he may transfer by a condition, and what the deed says when ambiguous. This is the group on which the שטר עסקא depends.
| Seif | What it settles |
|---|
| 5 | He is a paid bailee; the financier may impose any condition, and a deviation puts the loss on the operator. Rama: deviating is not robbery, but saying so is. |
| 6 | A fixed sum is forbidden even with all liability on the financier. Rama: permitted in rabbinic interest only, and on condition that the liability be taken in full. |
| 25 | An ambiguous deed (“half in gain and in loss”): read favourably for a man of stature, literally for another — who then loses half and takes nothing. |
| 26 | Who exercises the option: “gives” points to the financier, “to take” points to the operator. |
| 33 | One venture, two deeds: each counts separately. Two ventures, one deed: the principal is made up first. |
D · The operator’s standing — 10 seifim
Paid bailee, worker and partner at once: what he may buy, what he may not withdraw, what he may leave, and what becomes of the venture when he dies or gives it away.
| Seif | What it settles |
|---|
| 29 | The partner set up in the shop does not trade on his own account; if he did, half the gain to the owner. |
| 30 | The “loan” half may not be withdrawn: he may neither spend it nor lodge the deposit-half with the court. |
| 31 | The operator’s death: the financier takes back in kind, without an oath, ahead of the creditor and of the ketubah. |
| 32 | A gift made from the עסקא property: recovered from the recipient, even if transformed, sold or lost — and all on clear proof. |
| 34 | He lost, said nothing and made it up: the principal is filled from the profit. Rama: if he gave notice he may stop — he may withdraw whenever he wishes. |
| 35 | Two operators may not divide a third party’s venture, neither against a guarantee nor by dividing only the profit. |
| 36 | The operator may withdraw like a worker; the financier may not. |
| 37 | Not wheat with the loan-portion and barley with the deposit-portion: all must be alike. |
| 38 | He may buy any kind, even living creatures — but neither clothing nor vessels. |
| 39 | He may buy for himself as well, of the same kind, provided he does not sell the two lots together. |
E · The dressings — 10 seifim
Ten forms that look like something other than a loan at interest. Five do not hold, three do, and two are drafting faults that ruin a faultless agreement.
| Seif | What it settles |
|---|
| 7 | An עסקא turned into an annuity: forbidden if the operator consumed the money, permitted if he kept trading and pays out of real profit. |
| 8 | Lending on condition that the borrower discharge the king’s tax out of the sum lent — forbidden. |
| 10 | Paying so that another take one’s place in the king’s service: forbidden; paying to be released from it: permitted. |
| 13 | Reviewing the halakha with the debtor’s son while being paid expenses: forbidden, unless the principal becomes an outright gift. |
| 14 | “If I do not pay you, I shall owe you so much”: forbidden — הערמת רבית. Rama: some permit money against produce, and one may be lenient. |
| 15 | A promised dowry, surcharged for delay: permitted — there is no antecedent loan. |
| 16 | So much per week of delay: complete interest, whatever the form of the penalty clause. |
| 17 | The pledge that stays with the lender for whatever it is worth beyond: there is one who forbids, משום הערמת רבית. |
| 18 | Forward sale with a penalty: it is owed, provided the rate had come out or the seller held the goods. |
| 24 | Two forbidden ways of writing: capitalizing the profit, and casting the עסקא in the form of a loan. |
F · Proof and speech — 6 seifim
Six situations where the dispute is no longer about law but about facts: who is believed, about what, and what a court can extract from whom.
| Seif | What it settles |
|---|
| 9 | The borrower who undertook to feed the orphan and claims a deduction: the orphan is believed (the Taz at ס״ק י״ז cannot explain it). |
| 11 | “You took fixed interest from me,” the other denies: an oath of היסת, and some disagree. |
| 12 | The operator who pleads it was an interest-bearing loan is not believed — אין אדם משים עצמו רשע. |
| 19 | A deposit lent by the bailee to a non-Jew: he answers for everything, the gain is his, and his spontaneous gift is not interest. |
| 20 | He paid a profit every year and then claims there was none: he is not believed. |
| 40 | “I did not buy”: only a grievance; with witnesses, it is extracted; if he broke off before witnesses, he acquired for himself. |
G · Valuation and expenses — 3 seifim
Three seifim that keep imbalance from re-entering through the accounting: expenses belonging to the principal, valuation at today’s price, and the periods of tending livestock.
| Seif | What it settles |
|---|
| 21 | The porter’s wage is not set off against the operator’s toil: it enters the principal. |
| 22 | Goods brought in are valued at today’s price, not at cost. Rama: the customary tithe is shared. |
| 23 | Livestock in עסקא: eighteen months for she-asses, twenty-four for small cattle; the young, thirty or fifty days; and division requires informing the other or appraising before three. |
4. The three regimes of the wage for toil
| Regime | Source | Condition and measure |
|---|
| Daily wage כפועל בטל | seif 2 | The operator has no other occupation: he is paid for each day of the partnership, at the measure of a worker who has been idled. Four possible readings of that measure — Shach ס״ק ה. |
| A dinar for the whole period | seif 2 | The operator has another occupation, whatever and of whatever kind — Shach ס״ק ו. A dinar for a thousand suffices — Shach ס״ק ז. |
| An unequal share fixed in advance | seif 3 | Fixed before the venture, an unequal share of profit stands in for a wage: even a single dinar. What the operator who fixed nothing lacks is consent — Shach ס״ק ט. |
| Failing that: the default rule | seif 4 | Two thirds of the gain, a third of the loss per the Rambam; two thirds of the gain and half the loss per most poskim — Shach ס״ק י״ד. And established custom prevails over both. |
| The side forgotten in the deed | seif 27 | A quarter of the gain stipulated → a sixth of the loss. A quarter of the loss stipulated → half the gain. The operator always gains more than he loses. |
| Neither gain nor loss | seif 28 | Nothing, if the wage depended on the profit; the wage out of the principal, if it did not — and the Taz specifies at ס״ק ל״ו that he then takes only half of it. |
5. The map of liabilities: who bears what
| What is at stake | Who bears it | Reference |
|---|
| The deposit-half | The financier | The whole liability, accidents included — Rama’s gloss at seif 2. Partial liability avails nothing, even in a rabbinic prohibition — gloss at seif 6. |
| The loan-half | The operator | He answers for it even in case of accident — Rambam, הלכות שלוחין ושותפין chapter 6. But he may neither withdraw nor spend it — seif 30. |
| After a deviation from the conditions | The operator | The whole loss falls on him, and the slope thus created is not interest since it arises from his own fault — seif 5. |
| A deposit lent to a third party | The bailee | He answers for everything, the gain is his, and his spontaneous gift is not interest — seif 19 and Shach ס״ק מ״ב. |
| On the operator’s death | The financier takes back | In kind, without an oath, ahead of the creditor and of the ketubah — seif 31. |
| Expenses belonging to the principal | The principal | They are not shifted onto the operator by deducting them from his toil — seif 21. |
6. The dressings: what holds and what does not
| Seif | The arrangement | Verdict |
|---|
| seif 7 | An עסקא turned into an annuity after the operator consumed the money | Forbidden |
| seif 7 | The same conversion, but the operator kept trading and pays out of real profit | Permitted |
| seif 8 | A loan out of which the borrower discharges the king’s tax | Forbidden |
| seif 10 | Paying so that another take one’s place in the service | Forbidden |
| seif 10 | Paying to be released from the service | Permitted |
| seif 13 | Reviewing the halakha with the debtor’s son, expenses paid | Forbidden |
| seif 14 | “If I do not pay you, I shall owe you so much” — in a loan | Forbidden |
| seif 15 | A delay surcharge on a promised dowry — with no antecedent loan | Permitted |
| seif 16 | So much per week of delay, even written as a penalty | Forbidden |
| seif 17 | A pledge that stays with the lender for all it is worth beyond | There is one who forbids |
| seif 18 | A forward sale with a penalty, the rate having come out or the goods held | Permitted |
| seif 24 | Capitalizing the profit into the principal; writing the עסקא as a loan | Forbidden |
7. The operator: eight lines that define him
- He is a paid bailee over the deposit-half, once he receives a wage for his toil — seif 5.
- He is a worker for that same half: he may withdraw midway, and the financier may not — seif 36.
- He is a borrower over the loan-half, and yet he may not dispose of it: neither withdraw it, nor lodge the other half with the court — seif 30.
- He may depart from the conditions, and is not thereby a robber; but he becomes one if he declares he is acting for himself — seif 5.
- He may not divide the venture with a co-operator, even by guaranteeing the other’s share — seif 35.
- He may not trade on his own account if he is set up in a shop — seif 29; he may as an ordinary operator, provided he does not sell the two lots together — seif 39.
- What he gives away from the venture’s property is recovered from the recipient, on clear proof — seif 32.
- On his death the venture does not fall into his estate: the financier takes back in kind — seif 31.
8. Proof and speech
| Seif | The situation | What is decided |
|---|
| seif 9 | The orphan who denies having received the maintenance | He is believed — and the Taz at ס״ק י״ז holds the rule unexplained; the Nekudot HaKesef answer that we merely plead for him, as for anyone. |
| seif 11 | “You took fixed interest from me” against “no such thing happened” | An oath of היסת is imposed on the defendant; and some disagree. |
| seif 12 | The operator who pleads it was an interest-bearing loan | He is not believed — אין אדם משים עצמו רשע, Shach ס״ק כ״ז. |
| seif 19 | The bailee who lent out the deposit | He answers for everything, and nothing is owed to the depositor — the phrase קרוב לשכר aims only at one who stipulated it. |
| seif 20 | He paid a profit every year and then says there was none | He is not believed: what was given in the name of profit was given in the name of profit. |
| seif 40 | “I did not buy” | Without proof, only a תרעומת; with witnesses, it is extracted by force; and a public breaking of the mandate makes him acquire for himself. |
9. The nine disputes in one line each
- כפועל בטל — four readings: the Tur (an idle man), the Beit Yosef (a worker idled), Rashi (the gap between two kinds of work), the Rashba’s disciples (his own trade in the slack season). The Taz reconciles, the Nekudot HaKesef defend the Maharshal.
- חלוקת הסתם — the Rambam (two thirds of the gain, a third of the loss) against eight Rishonim (two thirds of the gain, half the loss); and custom prevails over both.
- קצץ בדבר ידוע with full liability — permitted in rabbinic interest only (Rama) or even in Torah interest (Shach, ס״ק כ); the Taz defends the Rama’s line.
- Rabbi Yeshaya’s reason — the Taz asks whence the prohibition comes, finds it in the tenants of Neresh, and delimits what remains permitted.
- The operator who deviates — the Taz requires the declaration to be made at the moment itself; the Nekudot HaKesef object that a man is believed against himself; the Baer Hetev leaves the matter for examination.
- קנס or אגר נטר — the Bach narrows and attributes it to the Rivash; the Shach finds nothing in the Rivash but keeps the conclusion; the Taz rejects it entirely.
- An עסקא past its term — the Taz: the permission continues; the Pitchei Teshuva: a doubt of law, and let the scribes stipulate it.
- The orphan is believed — the Taz cannot explain the credibility; the Nekudot HaKesef answer that it is not a credibility but a plea.
- ספיקא דדינא in interest — stringency or possession; and the Berit Avraham’s distinction between two kinds of doubt.
10. Golden rules, mnemonic, pitfalls and flash card
The 7 golden rules
- A split is not permitted because it is fair: it is permitted because both can lose.
- The operator’s toil is paid for. Always, and in one of the three ways — never in none.
- An unequal share agreed before the venture stands in for a wage; agreed after, it is worth nothing.
- The whole deposit liability on the financier — half is not “almost all.”
- A return that does not depend on the profit is no longer a share.
- A penalty per unit of time is interest, whatever the label.
- The deed does not dress the agreement: it is the agreement. Writing “loan” over an עסקא destroys it.
S-T-A-R
S — Slope — can either of the two lose? (seif 1)
T — Time — does the sum grow with time? (seif 16)
A — Attribution — is the operator’s toil paid for? (seifim 2-4)
R — Record — what does the deed actually say? (seifim 24-26)
The 6 classic pitfalls
- Believing that liability “for the most part” suffices. The gloss at seif 6 says the opposite in so many words: partial liability is useless even in a rabbinic prohibition.
- Taking the arithmetic of seif 4 for the halakha without reading the Shach at ס״ק י״ד — nor looking for an established custom.
- Fixing the wage for toil after the venture and believing it equivalent. Seif 3 requires it in advance; the Shach at ס״ק ט explains why.
- Reading seif 18 as a general permission for penalty clauses, forgetting its two conditions and the dispute of the Bach, the Shach and the Taz.
- Writing a weekly sum into an otherwise permitted deed — the Taz forbids it at ס״ק כ״א; the Nekudot HaKesef on the contrary permit it, and the contradiction must be brought to the Rav, not decided alone.
- Believing that an עסקא lapses of itself at its term. The Taz says it does not; the Pitchei Teshuva asks that the deed say so.
Flash card
An advance of funds is lawful only if both parties remain exposed, if the operator’s work is paid for, and if the deed says what the agreement is. Everything else in the siman follows from that: the dressings that fail are those that remove one of these three, and the dressings that hold are those that leave them alone.
To complete this revision: