Dei'ah veDibur - Information & Insight

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17 Adar I 5763 - February 19, 2003 | Mordecai Plaut, director Published Weekly









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Guide to Arranging a Heter Iska
by Y. Leiner

When people go to the bank they often regard the heter iska hanging on the wall as a sort of kashrus certificate that does not affect them directly. Even those who have some knowledge of what a heter iska represents, may not realize that if they do not understand what a particular heter iska seeks to communicate, that "heter" may be invalid for them; in fact they may even come to transgress prohibitions against ribis in their banking transactions.

The same problem applies no less in the case of shekel gemachim in which debts are linked to the dollar. Since depositors profit if the dollar rises in value between the time of the loan and the repayment, the loan must be made according to a heter iska. Here too, the lender must understand the significance of the transaction taking place, particularly when relying on the gemach's general heter iska rather than signing a private heter iska between the two sides.

Heter Iska is Not an Amulet

There is a well known jest about someone who wanted use the Chazon Ish's famous nusach for separating terumos umaaseros. Lacking a printed copy of the nusach he wanted to exempt himself by using a very original nusach: "May it be like the Chazon Ish wants."

This quip comes close to the truth in the case of the heter iska because to many customers the bank's communication does not appear to obligate them in any way, but is essentially an agreement that says, "May it be like the poskim want."

The heter iska is not a mysterious amulet to help the business succeed, but an agreement that fully obligates both sides. Based on the heter iska a legal suit for din Torah against one of the banks was filed years ago. When the banks argued in court that the heter iska was merely a formality and not binding in its details, bank and investment company directors were required to sign a pledge that legally obligated them to honor the heter iska with all of its details.

As a result the Institute for Economics Based on Halacha, under the auspices of the Beis Midrash Hagodol for Halacha in Agriculture, produced a unique booklet containing various formulations of the heter iska to serve every purpose. The booklet is made available to the public for practical use by companies, associations, gemachim and individuals making private loans. It opens with halachic and practical information, including the definition of an iska and a heter iska, the issue of sechar tirchoh and a detailed explanation of the various heterei iska and the differences between them, i.e. which rely on the Shulchan Oruch (Yoreh Deah 167) and which rely on the gemora (Bava Metzia 104a).

The "General Heter Iska"

The booklet also includes an explanation of the "general heter iska," an idea conceived in 5682 (1922) by the Admor of Lublin HaRav Ezriel Eiger, the great-grandson of R' Akiva Eiger, and published in a sefer called Takonas Rabim. Many gedolei Yisroel objected to the idea, including HaRav Isser Zalman Meltzer and his son-in- law, HaRav Aharon Kotler (see Shut Mishnas Rabbi Aharon).

Yet in the case of companies, banks, various commercial enterprises and organizations such as gemachim and learning institutions that have binding rules and regulations, even opponents like HaRav Meltzer and HaRav Aharon accepted it. They held that since these bodies are backed by an authority requiring parties that deal with them to meet their previously established rules and conditions, a stipulation requiring the entire body to follow a heter iska is binding and therefore can be relied upon even when an individual heter iska was not drawn up. (Nonetheless in any contract or agreement it is preferable to add that all agreements are subject to the organization's heter iska.)

Therefore the general heter iska is widely accepted in such cases in accordance with the opinion of gedolei haposkim. However, since the parties involved are still required to understand the meaning of the iska-- perhaps even more so in the case of the general heter iska--the booklet currently being produced will provide the public with valuable information.

Among the samples of shtaros heter it contains is a special shtar formulated by Maran HaRav Sholom Yosef Eliashiv shlita, for use by shekel gemachim linked to the dollar (according to the representative rate -- sha'ar yatzig). HaRav Eliashiv holds that because this representative rate does not refer to real coin or other money the resulting gap in rates between it and currency is considered profit prohibited by the laws of ribis.

The second portion of the booklet contains tear-out hetrei iska for use by the general public.


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