has $10,000 saved up for his daughter’s wedding, which is scheduled to
take place in four months time. He knows that if he keeps the money at
home, he will be tempted to spend it. He therefore asks his friend, Chezky,
to look after it for him. Chezky thinks it is a shame to allow such a
large sum of money to lie idle and invests it with a non-Jewish financial
institution. At the end of the four months, he returns the deposited sum
to Simcha. Chezky wishes to know: (a) Is he obligated
to give Simcha part (or all) of the profit earned with his money and (b)
would he be permitted to
give Simcha more than he received from him; perhaps such payment
constitutes ribbis from Jew to Jew? We have another question. Was it
permitted for Chezky to use money deposited in his care?
Oruch (Yoreh Deah,
177:19) rules that if Shimon lent money deposited with him by Reuven to a
non-Jew on interest, he is fully responsible for this money. Even if the
deposited sum is destroyed by accident, Shimon is still liable. However, Shimon
is entitled to keep the entire profit for himself. Should he wish to share the
profit with Reuven, he may do so without any concern about infringing ribbis
laws. Even though one Jew is repaying another Jew more than he received from
him, he is neither repaying a loan nor paying for goods purchased. Additionally,
explains the Mordechai (Bovo
Metzia, No.295), Shimon was never under any obligation to share his
profits with the depositor. Any additional payment is therefore viewed as being
merely a gift.
We would therefore seem to have answered Chezky’s two
questions. (a) He is under no obligation to share his profits with Simcha; (b)
if he so wishes, he may give him some (or all) of the profits without infringing
However, we have not yet answered our additional
question. Was Chezky acting correctly when he invested money deposited with him?
Surely the purpose of the deposit was to look after the money and not to use it
for his own benefit? According to the mishna
in Tractate Bovo Metzia (43a),
this depends on the identity of the guardian and the way the money is wrapped
when deposited. If the guardian deals in money (shulchoni)
and the deposited money is not sealed in an unusual way, it is assumed that the
depositor gives the guardian permission to use the money – at his own risk!
The Mordechai (quoted by the Sema,
Choshen Mishpot 292:18) rules that
nowadays the basic assumption is that any monetary deposit may be used. We are
no longer an agriculture-based society. Jews make their living through using
money to do business or by lending on interest to non-Jews. Therefore, whenever
money is deposited with a fellow-Jew, the assumption is that it has reached the
hands of one whose business is dealing in money.
Choshen (Vol.2, Chapter 5, Note 53) points out that this ruling is
not quoted by the Shulchan Oruch,
indicating that he disagrees with his ruling. Furthermore, the Tumim
argues that the Rambam is also not
in agreement with the Mordechai.
It is therefore advisable to ask permission before using deposited sums of
Would it make any difference if the money was used without permission?
The Remo (Choshen
Mishpot 292:7) rules that the guardian would still be entitled to
retain all the profits for himself. However the reason is no compliment to him!
Using a deposited item without permission is considered misappropriation, a form
of theft. All thieves are required to make amends by returning the stolen
article or its monetary value at the time of theft. Any profits belong to the
thief! However, in our case it would be logical to suggest that Simcha does not
mind if Chezky uses the money. His main concern is to have it out of the reach