A complex point throughout Jewish history is related to the practice of usury. In the Torah portion of Ki Tetze it discusses the prohibition to take interest. An ethical imperative in Judaism is to help the needy and the poor with charity and to offer a loan to one who needs. The law regarding charity in the form of a loan is found in Deuteronomy:[1] If there will be among you a needy person, from one of your brothers in one of your cities, in your land the Lord, your G-d, is giving you, you shall not harden your heart, and you shall not close your hand from your needy brother. Rather, you shall open your hand to him, and you shall lend him sufficient for his needs, which he is lacking.’ Similarly, in Exodus, there is an obligation to help a person who requires a loan:[2] ‘When you lend money to My people, to the poor person [who is] with you.’ The Midrash[3] interprets the verse as an obligation and is codified as such in Jewish law: ‘It is a positive commandment to lend money to the poor among Israel, as it states:[4] “If you will lend money to My nation, to the poor among you.”’ Lest one think that this is a matter left to the person's choice, it is also stated:[5] ‘You shall certainly loan to him.’
While it’s an obligation to lend, there’s a prohibition against usury. This is found in two sources: Leviticus and in the portion of Ki Tetze in Deuteronomy. In Leviticus it states:[6]
If your brother becomes destitute and his hand falters beside you, you shall support him [whether] a convert or a resident, so that he can live with you. You shall not take from him interest (neshech) or increase (tarbit), and you shall fear your G-d, and let your brother live with you. You shall not give him your money (kasp’cha) with interest (b’neshech), nor shall you give your food (ochel) with increase (marbit). I am the Lord, your G-d, Who took you out of the land of Egypt, to give you the land of Canaan, to be a G-d to you.
In Deuteronomy it states:[7]
You shall not give interest to your brother, [whether it be] interest on money, interest on food or interest on any [other] item for which interest is [normally] taken. You may [however,] give interest to a gentile, but to your brother you shall not give interest, in order that the Lord, your G-d, shall bless you in every one of your endeavours on the land to which you are coming to possess.
The question that arises regarding the text is why does the Torah require both these sources against usury, in Leviticus and Deuteronomy? There are two interpretations to the verse in Deuteronomy: the Rashbam,[8] Ibn Ezra[9] and Gersonides[10] all argue that the plain meaning of the verse refers to the lender, as it does in Leviticus. Chizkuni also argues that it refers to the lender but claims that Leviticus refers to lending to a poor borrower, while Deuteronomy refers to the prohibition to lend with interest even to one who is rich in assets but short of cash. The second interpretation to Deuteronomy which the Midrash Sifrei,[11] the Talmud, follow and which Maimonides, Nachmanides,Rabbeinu Bahya, Rashi and others also follow, maintain that it refers to the borrower. The reason, as explained by Sifsei Chachamim and Rabbi Elijah Mizrachi is that if it refers to the lender,it should have written ‘lo tishoch’ (‘do not charge interest’ in the active form). Instead it writes lo tashich, in the causative, implying the borrower is causing the lender to extract interest from him. The uniqueness of this law is explained by Nachmanides: in other monetary matters if a person wishes to cause himself financial harm he may do so, whereas with usury, because this is such a common phenomenon, it is prohibited also for the borrower.
This view is codified in Jewish law in the Mishna:[12] ‘These are the ones who transgress a negative commandment: the lender, the borrower, the guarantor, and the witnesses’. Maimonides lists the prohibition against the borrower as one of the commandments of the Torah:[13] ‘The 236th prohibition is that the borrower is also forbidden from borrowing with interest.’
Rashi
We will now focus on Rashi’s perspective and the insight that the Rashi manuscripts in the Bodleian Library provide. Rashi in his commentary on the Torah, unlike his grandson Rashbam, follows the view that the verse in Deuteronomy refers to the borrower. Rashi comments:[14]
‘You shall not give interest (lo tashich, causative form): This is an admonition to the borrower that he should not pay interest to the lender. Afterwards (v’achar kach) is the admonition to the lender, in the verse in Leviticus:[15] ‘You shall not give him your money with interest.’’
Three versions of Rashi
We will look at three versions of the Rashi as found in the manuscripts at Oxford’s Bodleian Library and offer an explanation for the view of Rashi in the published edition and some of the manuscripts. In the published edition of Rashi, after the prohibition about borrowing with interest, it adds: ‘Afterwards is the admonition to the lender:[16] “You shall not give him your money with interest.”’ This addition is also found in MS. Huntington 445[17] (1376-1400) and MS. Canon. Or. 81[18] (1396).
In MS. Oppenheim 34[19] (1201-1225) this addition is however omitted completely. In MS. Michael 384[20] (1399) it omits the word ‘afterwards’ and just writes: ‘And regarding the admonition to the lender it states:[21] “You shall not give him your money with interest.”’
The source of the Rashi commentary that mentions both prohibitions – first the borrower and second the lender - in the context of the prohibition of borrowing with interest in Deuteronomy - is from the Midrash Sifrei:
'You shall not give interest to your brother:' This verse in Deuteronomy tells me only of the borrower. Whence do I derive the same for the lender? From Leviticus: ‘You shall not take from him interest.’
This explains the text as found in the manuscripts, which includes both prohibitions in the commentary of Rashi, although the focus of the Biblical text in Deuteronomy is only relating to the borrower. Similarly, the reason for the omission of the word ‘afterwards’ before explaining the prohibition of the lender, in some of the manuscripts, is explained in a commentary on Rashi, Leket Bahir, since the verse does not in fact appear after the verse in Deuteronomy, but earlier in Leviticus. In addition, the Midrash Sifrei – the source of Rashi – does not include the word ‘afterwards.’ This raises the question: why is the word ‘afterwards’ included in a number of the manuscripts and the published edition?[22]
I would like to propose several reasons for this version of Rashi’s commentary that includes the word ‘afterwards’ between the admonition to the borrower and the lender.
Chronology
The book of Deuteronomy is principally a work consisting of the speeches that Moses delivered to the people in the Plains of Moav before his passing, between the first of Adar and the seventh, the date of his passing. Deuteronomy is not necessarily in chronological order in the order of how the speeches were delivered and recorded relating to their context within Deuteronomy, as evident from the reason for the juxtaposition, for example, of ‘an eye for an eye’ next to the laws of war.[23] The same is the case regarding parts of Deuteronomy that consist of speeches delivered during the first two years after the Exodus but included in the book of Deuteronomy. This conceivably might be the case regarding the two laws concerning taking interest: the admonition to the borrower might have taken place prior to the admonition to the lender. If this was the case, this would explain the reason for the Rashi text writing ‘afterwards’ between the admonition to the borrower and the lender.
Law
A second consideration offering a more conceptual meaning of the word’ afterwards,’ is in relation to the comprehensiveness of the law of interest. The main source for this comprehensiveness is from the case of the borrower, where it states:[24] ‘You shall not give interest to your brother, whether it be interest on money, interest on food or interest on any other item for which interest is normally taken.’ The Talmud[25] derives from this verse pertaining to the borrower two critical laws regarding the lender: that the prohibition is with regard to a loan of money or a loan of food,and also that the prohibition to the lender pertains to the terminology used by the Torah, both asneshech (lit. biting – causing loss to the borrower) and ribit (lit. increasing to the lender).[26]
Uniqueness
A third consideration is that the basis for the prohibition of taking interest as a prohibition by itself, separate to other unethical behaviours, like theft[27] and fraud,[28] is because of the uniqueness of the law of the borrower in relation to interest. The Talmud explains that the difference between usury versus theft or fraud is that that the prohibition of a loan with interest applies even for the borrower, whereas with regard to theft and fraud, there is a prohibition against taking another’s money, but there is no prohibition for the victim, who has his money taken.
Furthermore, the reason why prohibition of interest can’t be derived from theft or fraud is because the way it affects the borrower is different from theft and fraud: Firstly, with regard to robbery, it is an action taken against the will of the victim, whereas in the cases of interest, there is consent. Second of all, with regard to fraud, the victim is unaware and therefore cannot waive repayment, whereas with interest or robbery, the borrower and the victim, respectively, are aware that money was taken and waiving repayment is possible. This makes interest different to theft in regard to consent and different to fraud in regard to awareness. Thus, the underlying reason for interest to be seen as a prohibition in its own right, as recorded in the Torah and Jewish law, is all through the prism of the prohibition of the borrower.
Forgiveness
A further consideration relating to an aspect of the law of interest is a dispute whether the interest one paid in violation of the law may be forgone by the borrower or must be returned in any event. This is a dispute between the Gaonim who maintain it cannot be waived and the borrower pays interest, and Maimonides[29] who argues it may be waived, similar to theft, whereby if the victim chooses not to reclaim the theft one may. Rabbi Joseph Caro in his code of Jewish law follows Maimonides.[30] The reasoning of the Gaonim is that since whenever interest is given, the borrower is in fact waiving his rights. The Torah, however, does not accept this waiver and forbids it. Therefore, one cannot waive interest on behalf of the lender. Maimonides however argues: ‘It appears to me that this ruling is incorrect. Instead, since the lender is told to return the interest, and he knows that he violated a prohibition, and the borrower has the right to collect the money, if the borrower desires to waive the obligation to return the interest he may do so, just as a person may waive the return of a stolen article.’
This dispute reflects an underlying dispute about the nature of the prohibition of taking interest: is it a civil matter or a matter that is regulated by the Torah unrelated to the norms of civil law, whereby we take into consideration the victim as a person harmed by the actions of others? If the former, waiving one’s claims is possible, if the latter, one has no right to waive such claims, as the claim is not one’s own but from the law of the Torah itself, in a sense, independent of the person.
A difference between these two approaches is whether the underlying focus of the law is relating to the borrower as victim, in which case the prohibition is fundamentally on the lender for causing harm to a borrower. The prohibition against the borrower in this context is derived from the lender that the borrower may not even cause the lender to perform such a prohibition. Alternatively, the fundamental aspect of the law is that the borrower may not borrow with interest even if the borrower waives his rights.
Summary
While in the first reasoning the term ‘afterwards’ refers to chronology, the latter three considerations suggest the term ‘afterwards’ between the borrower and the lender to be conceptual in focus. This would explain the focus in the Rashi commentary in Deuteronomy on the borrower and then adding ‘afterwards’ the law of the lender.
Conclusion
We raised a question regarding the law against charging interest: why does the Torah discuss the laws of usury in two places - in Leviticus and Deuteronomy - when they seem identical? We offered two interpretations, firstly, that both refer to a lender: to the poor and the wealthy. A second interpretation is, Leviticus refers to the lender and Deuteronomy to the borrower. We proceeded to analyse Rashi’s commentary that follows the second interpretation but adds the word ‘afterwards’ between the borrower (Deuteronomy) and the lender (Leviticus), even though Leviticus comes before Deuteronomy. While some manuscripts omit the word, we suggested that ‘afterwards’ might refer to the chronology of the biblical texts where the law about the borrower was taught before the lender, even though the Torah records them in reverse. We concluded by offering three additional reasons, firstly, the centrality of the text of the law of the borrower serves as a more primary text, due to its comprehensiveness. Secondly, the law of the borrower reflects the novelty of the law itself that, unlike theft and fraud, defies the borrower’s consent, and thirdly, the law of the borrower reflects the definition of the law: a sin against G-d, uniquely highlighted by the prohibition against the borrower, as opposed to damages against man that is highlighted by the law against charging interest by the lender.[31] Combined, these reasons reflect a primacy to the law of the borrower in the law of usury, thus perhaps explaining the phraseology in the Rashi commentary in the published edition and some of the manuscripts.
[1] Deuteronomy 15:7-8.
[2] Exodus 22:24.
[3] Rashi comments from Midrash Mechilta that ‘if’ in this case is the obligatory ‘when,’ and not the optional ‘if’: When you lend money to My people: Rabbi Ishmael says: Every אִם in the Torah is optional except three, and this is one of them.
[4] Exodus 23:24 .
[5] Deuteronomy 15:8.
[6] Leviticus 25:35-38.
[7] Deuteronomy 23:20-21.
[8] Rashbam, Rabbi Shmuel ben Meir, a Biblical commentator in his commentary on Deuteronomy 23:20.
[9] Ibn Ezra on Deuteronomy 23:20. Ibn Ezra offers two translations of lo tashich, a. you shall not accept interest. b. you should not charge interest.
[10] Ralbag al Hatorah, Deuteronomy 23:20.
[11] The Sifrei states: ‘You shall not give interest to your brother: This verse in Deuteronomy tells me only of the borrower. Whence do I derive the same for the lender? From Leviticus: ‘You shall not take from him interest.’ A similar text is found in the Midrash Tanchuma Mishpatim 9:7: ‘Our rabbis teach us that the borrower, the guarantor, the witnesses, and the scribes are all considered culpable. Therefore, all of them shall be punished. Whence do we learn that the borrower is punished? It is written: Thou shalt not cause thy brother to lend upon interest (Deut. 23:20). To what can interest be likened? To a person who does not feel or notice the bite of a snake until the swelling appears. Similarly, interest is not felt until it has increased for the debtor. If thou at all take thy neighbor’s garment to pledge (Exod. 22:25). The Holy One, blessed be He, said to him: If he is in debt to you, you are also in debt to Me, as it is said: If they sin against Thee—for there is no man that sinneth not (I Kings 8:46).’
[12] Bava Metzia 75a.
[13] Sefer Hamitzvot Negative commandment 236.
[14] Rashi on Deuteronomy 23:20.
[15] Leviticus 25:37.
[16] Leviticus 25:37.
[17] Fol. 90.
[18] Fol. 176
[19] Fol. 108.
[20] Fol. 132.
[21] Leviticus 25:37.
[22] It appears in brackets in some published editions.
[23] See Rashi on Deuteronomy 20:1.
[24] Deuteronomy 23:20.
[25] Talmud Bava Metzia 61a.
[26] In addition, the broadening of interest to all matters is derived from the law of the borrower in Deuteronomy, as the Talmud (Bava Metzia 75b) states: ‘It is taught in a baraita that Rabbi Shimon ben Yoḥai says: From where is it derived with regard to one who is owed one hundred dinars by another, and the borrower is not accustomed to greeting that lender, that it is prohibited to start greeting him after being granted the loan? The verse states: “Interest of any matter [davar] that is lent with interest” (Deuteronomy 23:20), which can also be read as indicating that even speech [dibbur] can be prohibited as interest.’
[27] Leviticus 19:13.
[28] Leviticus 25:14
[29] Mishneh Torah Laws of Borrowing 4:13.
[30] Shulchan Aruch, Yoreh Deah 160:5.
[31] This would suggest Rashi follows the view of the Gaonim that the borrower may not forgo the repayment of the interest from the lender.