Responsa for Bava Batra 81:3

Q. A, B, C, and D, were partners in a loan made by them. In repayment they received a quantity of silver which they divided among themselves by lot. Subsequently, A bought B's silver and sold it to merchants [probably Gentile merchants]. The latter broke up the silver and found it mixed with base metal. A averted a calamity by pacifying the merchants with gifts of money, thus preventing their bringing false accusations against him. A demands that B reimburse him with the price of the silver, and also compensate him for the money he had spent in pacifying the merchants.
A. The sale of the silver to A is void, since it was made in error. Similarly, the division of the silver among the partners is void, even though made by lot, since that too was made in error. However, B is not required to compensate A for the money he spent in pacifying the merchants, since B did not know, at the time of the sale, that his silver contained base metal. Moreover, even if B knew the contents of his silver, he would still be absolved from paying A the money he had given to the merchants, since he was only an indirect cause of A's loss, though he would be liable to punishment by the Heavenly Court.
SOURCES: P. 48, 49.

Q. A, wishing to appeal to a higher court, demands that the local court give him a written statement as to the reasons underlying the court's decision in his case versus B. Can B be enjoined from issuing execution on the rendered judgment until such time as the appeal has been disposed of?
A. No, B may collect his money immediately.
SOURCES: Cr. 280; Pr. 523; L. 128; Hag. Maim. to Sanhedrin, 6, 8.

a) Q. M(eir) settled in the town T and lived there for many years buying houses and planting vineyards and groves. While he was alive certain persons contested his right to settle in T, but R. Judah ha-Kohen confirmed M's settling-rights. Now (after M's death) some inhabitants of T seek to oust M's son-in-law claiming that M possessed no settling rights in T.
A. Since R. Judah, my teacher and relative, acting in his official capacity as judge, confirmed M's settling-rights, no one is permitted to contest these rights of M. For, R. Judah deserves complete reliance on, and respect for his decisions. Therefore, you ought to silence all contestants by decree.
b) You state in your letter that two years ago you inquired of me regarding R. Isaac son of Rehabiah whose settling right was contested by the leading inhabitants of the town and that at that time we (?) had confirmed R. Isaac's right on the following grounds: a) witnesses testified that his father dwelt in this town for a year or two without disturbance; b) after his father's death he dwelt here for three years without disturbance; and c) in such cases the court puts forth the claim (for the heir) that had the father been alive he would have claimed to have bought (or obtained) settling-rights from the other dwellers of the town (and would have needed no further evidence under the circumstances). I have heard my teacher R. Judah ha-Kohen decide cases of settling-rights-disputes on the grounds quoted above; but I do not believe that such decisions are correct. According to talmudic law, undisturbed possession is not a factor in disputes involving settling-rights. Persons dwelling on their property during its occupancy by another, do not have to protest such occupancy since they are always in possession of their property (B.B. 29b). Therefore, the failure of the inhabitants of the town to protest against R. Isaac's settling in their midst, is of no consequence, and the decision given above is, indeed, faulty. However, it is possible that my teacher (R. Judah) arrived at such decision by following not talmudic law but community practice. Many communities accept, as legal, methods of proving a person's settling-rights that have no basis in, and that are entirely unacceptable to, talmudic law. For, settling rights are governed by the customs and practices of each particular community. The customs of the various communities differ from one another and are not at all dependent on strict talmudic law. R. Judah, therefore, finding a parallel in talmudic law, wanted to institute the custom of accepting undisturbed possession as a method of proving a person's settling rights. This custom ought to be followed in the communities where R. Judah instituted it (in deference to this scholar), and is in itself worthy to be followed in other communities as well.
SOURCES: L. 213.

Q. A, wishing to appeal to a higher court, demands that the local court give him a written statement as to the reasons underlying the court's decision in his case versus B. Can B be enjoined from issuing execution on the rendered judgment until such time as the appeal has been disposed of?
A. No, B may collect his money immediately.
SOURCES: Cr. 280; Pr. 523; L. 128; Hag. Maim. to Sanhedrin, 6, 8.

Q. A, a levir, married the widow of his brother B and had children with her. B had died while his father was still alive, but subsequently the father also died. Before his death, however, the latter divided his property equally among his sons. While A was away his remaining three brothers divided the father's landed property into four equal parts, one for each brother. When A returned he did not object to the division; and after his death, when the brothers sold their parts, his widow and orphans did not protest against the sale for over three years. Now, however, the latter claim that the division was unjust and the sale, therefore, invalid since A was entitled to a double portion of the estate, his own and that of his brother B.
A. Both, the division of the property by the brothers, and its subsequent sale, would be void, according to Rashi, since A was entitled to a double portion out of his father's estate. The fact that both transactions were not protested for over three years, is of no consequence since the brothers, or their successors, do not claim that A officially forewent or sold his rights. Moreover, A died before the three years of undisturbed possession were over, and one cannot claim undisturbed possession as evidence of title to property belonging to young orphans even after they grow up. However, since A's father divided his property among his sons, A is not entitled to any more than what his father gave him; for he received his portion as a gift and not as an inheritance.
This Responsum is addressed to R. Eliezer haLevi.
SOURCES: L. 384; Tesh. Maim. to Mishpatim, 51.

Q. A borrowed ten pounds of charity-money on the following conditions: a) that he pay three pounds per year out of his profits; b) that should his profit be less than three pounds, he would have to pay only half of that profit; and c) in case there be a loss, A would suffer the entire loss himself. For ten years A paid the three pounds per year regularly and thus has paid thirty pounds to the charity-chest. Now, however, being somewhat depleted in finances he is in no position to return the ten pounds. Since it is forbidden to lend charity-money on condition that the lender share in the profits but not in the losses, the thirty pounds paid by A is considered abak ribbit (shade of usury). Although A can not collect, by judicial process, the abak ribbit he has paid, he ought to be able to retain the ten pounds in exchange for the unlawful interest he has paid. Signed: Hayyim b. Machir.
A. If one lends money on condition that he share in the profits but not in the losses, the terms of this transaction, being unlawful, are void. We must, therefore, substitute other terms in their place. We must choose one of the following alternatives: a) the transaction is a pure loan bearing no profit; b) the lender is liable for his share of the losses and is entitled to his share of the profits. Since a person lends money with the intention of earning a profit, and such profit constitutes the main purpose of the transaction, we prefer the second alternative. Therefore, we must calculate what percentage of the entire profit (earned by A through the use of the ten pounds) the three pounds per year was expected to form, and, then, charge the charity-chest with the responsibility for the same percentage of the losses. If, during the ten year period, the thirty pounds paid by A exceeded the percentage of the total profit, A is entitled to deduct such excess from the principal; otherwise, he must repay the entire principal.
R. Hayyim b. Machir raised objections to R. Meir's decision. He brought proof to the effect that the transaction ought to be changed into a pure loan bearing no profit, and that A be entitled to retain the ten pounds of the principal against the illegal profit he has paid. He even cited (by number) another Responsum of R. Meir wherein the latter decided that a transaction such as the above be considered a pure loan bearing no profit. (Cf. Cr. 62, Pr. 151; Am. II, 169.) He assured Rabbi Meir, however, that he would follow his decision.
R. Meir replied: I was always of the opinion that the aforesaid transaction ought to be considered a pure loan bearing no profit. But, when your query reached me I had just received the book (Code) of Maimomides, and I decided to "ask the Oracle" (see what Maimonides says on the subject). When I discovered that Maimonides requires the lender to share in the losses as well as in the profits, I adopted his view. For all his words are based on tradition. Even if this decision be based on reason, I have to bow to his opinion since my inferior reasoning ability could never compare with that of Maimonides who is a profound master in that art. Moreover, I see the wisdom of his view. For a person who lends money to another does so because he hopes to profit thereby. Were he mainly interested in the safety of the principal (as you seem to infer) he would keep the money in a safe place and never lend it to anybody. Were we to ask a lender who had stipulated that he do not share in the losses, whether he would prefer to change his voided agreement into a pure loan transaction bearing no profit, or choose to share in the profits and the losses, he would certainly prefer the latter. Furthermore, when the active partner lends the money against adequate security, the chances of earning a profit are much greater than the chances of losing part of the principal.
SOURCES: L. 426; P. 477.

Q. A borrowed ten pounds of charity-money on the following conditions: a) that he pay three pounds per year out of his profits; b) that should his profit be less than three pounds, he would have to pay only half of that profit; and c) in case there be a loss, A would suffer the entire loss himself. For ten years A paid the three pounds per year regularly and thus has paid thirty pounds to the charity-chest. Now, however, being somewhat depleted in finances he is in no position to return the ten pounds. Since it is forbidden to lend charity-money on condition that the lender share in the profits but not in the losses, the thirty pounds paid by A is considered abak ribbit (shade of usury). Although A can not collect, by judicial process, the abak ribbit he has paid, he ought to be able to retain the ten pounds in exchange for the unlawful interest he has paid. Signed: Hayyim b. Machir.
A. If one lends money on condition that he share in the profits but not in the losses, the terms of this transaction, being unlawful, are void. We must, therefore, substitute other terms in their place. We must choose one of the following alternatives: a) the transaction is a pure loan bearing no profit; b) the lender is liable for his share of the losses and is entitled to his share of the profits. Since a person lends money with the intention of earning a profit, and such profit constitutes the main purpose of the transaction, we prefer the second alternative. Therefore, we must calculate what percentage of the entire profit (earned by A through the use of the ten pounds) the three pounds per year was expected to form, and, then, charge the charity-chest with the responsibility for the same percentage of the losses. If, during the ten year period, the thirty pounds paid by A exceeded the percentage of the total profit, A is entitled to deduct such excess from the principal; otherwise, he must repay the entire principal.
R. Hayyim b. Machir raised objections to R. Meir's decision. He brought proof to the effect that the transaction ought to be changed into a pure loan bearing no profit, and that A be entitled to retain the ten pounds of the principal against the illegal profit he has paid. He even cited (by number) another Responsum of R. Meir wherein the latter decided that a transaction such as the above be considered a pure loan bearing no profit. (Cf. Cr. 62, Pr. 151; Am. II, 169.) He assured Rabbi Meir, however, that he would follow his decision.
R. Meir replied: I was always of the opinion that the aforesaid transaction ought to be considered a pure loan bearing no profit. But, when your query reached me I had just received the book (Code) of Maimomides, and I decided to "ask the Oracle" (see what Maimonides says on the subject). When I discovered that Maimonides requires the lender to share in the losses as well as in the profits, I adopted his view. For all his words are based on tradition. Even if this decision be based on reason, I have to bow to his opinion since my inferior reasoning ability could never compare with that of Maimonides who is a profound master in that art. Moreover, I see the wisdom of his view. For a person who lends money to another does so because he hopes to profit thereby. Were he mainly interested in the safety of the principal (as you seem to infer) he would keep the money in a safe place and never lend it to anybody. Were we to ask a lender who had stipulated that he do not share in the losses, whether he would prefer to change his voided agreement into a pure loan transaction bearing no profit, or choose to share in the profits and the losses, he would certainly prefer the latter. Furthermore, when the active partner lends the money against adequate security, the chances of earning a profit are much greater than the chances of losing part of the principal.
SOURCES: L. 426; P. 477.