Responsa על סנהדרין 50:22
Teshuvot Maharam
Q. A trustee loaned money belonging to orphans to A on interest, at the rate of one quarter per mark. A refused to pay the interest. Moreover, A claimed to have repaid part of the loan, which claim the trustee denied. The inquiring judges decided that even money belonging to orphans can not be loaned to a Jew at a definite rate of interest.
A. Your decision was correct and the trustee's stipulation of a definite interest was illegal and, therefore, void. However, under the circumstances, the loan is as if made by the Jewish court — the natural trustee and protector of all orphans — on the usual terms [made when orphans' money is loaned]: "to share in the profits but not in the losses." Therefore, if A earned profits with the money, he must pay to the trustee, the stipulated quarter per mark. If A admits that the money he borrowed belonged to the orphans, but claims to have repaid part of it, the trustee is believed as to the amount he received from A, (in repayment of the loan), and is not required to take an oath since the trustee is a disinterested third party. But if A states his belief that the trustee loaned him his own money, and not the orphans' money, the trustee must take an oath as to the amount he received from A in repayment of the loan, though he is not required to take an oath to the effect that the money he loaned belonged to the orphans.
SOURCES: Pr. 969; Mord. B.M. 332; Agudah B.M. 98.
A. Your decision was correct and the trustee's stipulation of a definite interest was illegal and, therefore, void. However, under the circumstances, the loan is as if made by the Jewish court — the natural trustee and protector of all orphans — on the usual terms [made when orphans' money is loaned]: "to share in the profits but not in the losses." Therefore, if A earned profits with the money, he must pay to the trustee, the stipulated quarter per mark. If A admits that the money he borrowed belonged to the orphans, but claims to have repaid part of it, the trustee is believed as to the amount he received from A, (in repayment of the loan), and is not required to take an oath since the trustee is a disinterested third party. But if A states his belief that the trustee loaned him his own money, and not the orphans' money, the trustee must take an oath as to the amount he received from A in repayment of the loan, though he is not required to take an oath to the effect that the money he loaned belonged to the orphans.
SOURCES: Pr. 969; Mord. B.M. 332; Agudah B.M. 98.
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