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Yevamos, 66


QUESTION: The Gemara says that if a Yisrael rents a cow from a Kohen, or a Kohen rents a cow from a Yisrael, the cow is considered to be the possession of the real owner with regard to Terumah. Hence, if the owner is a Kohen, the cow may eat Terumah, and if the owner is a Yisrael, it may not eat Terumah. The reason the rented item is considered to be the possession of the real owner is because the owner has the responsibility to shoulder the loss in value of the animal if its value decreases or if it is harmed. However, the Gemara says that if the person renting the cow appraises the value of the cow in order to take full responsibility for it and to return to its owner the exact value after a certain amount of time, then it is considered to be in the possession of the one who rents it, since he bears the entire monetary responsibility. If the person renting it is a Kohen, he may feed it Terumah.

RASHI explains that this second case is also discussing a rental. It differs from a normal case of a rental because at the time of the rental, the person renting the cow stipulated that he will return the exact value that the cow presently represents (compensating for any difference in tenderable currency).

This explanation, is problematic. If the person has accepted upon himself to return the exact value that he received, then in essence he is treating the entire transaction like a loan. But if -- besides the responsibility he accepted to return the exact value of the cow -- he is also paying rent, then it should be Asur because of Ribis, because he is returning more than he borrowed!

In a normal case of a rental, the Gemara (Bava Metzia 69b) explains that the money paid as the rental fee for the item is not considered Ribis, even though the item itself is going to be returned to the owner in addition to the rental fee that is paid. The reason it is not Ribis is because the person renting it does not take responsibility for market fluctuations in the value of the item, nor does he take responsibility for uncontrollable circumstances. Therefore, the owner is taking a risk of losing his item by letting someone else use it, and thus he takes a rental fee in return for the risk, and that is why it is not Ribis. Another reason why taking a rental fee is not Ribis applies only when the type of object that is rented is one that depreciates in value when used. Even if the person renting it accepts to compensate for the market fluctuation in its value and for uncontrollable circumstances, the rental fee is not considered Ribis, since it simply compensates for returning an object that is worth less than it was originally worth!

However, in the case of our Gemara, the person renting the cow is taking full responsibility for the value of the cow. In addition, the cow is normally worth the same amount after plowing as before plowing. Why, then, is the rental fee not Ribis? (TOSFOS DH Aval. Tosfos rejects Rashi's explanation and says instead that in the second of the Beraisa, the person who is borrowing the cow is not paying any rental fee for it.)

ANSWER: RASHI might rule that this is not considered Ribis for the following reason. A person who rents an item is not liable if the animal depreciates or dies as a result of normal usage ("Mesah Machmas Melachah"). The person in our case only accepted to repay the fluctuations in value that were not work-related. (See also ARUCH LA'NER.)

TOSFOS, though, does not accept this possibility. Perhaps Tosfos holds that if the person renting the cow is not responsible to replace the value of the animal *under all circumstances*, then the animal is not considered to be his property with regard to feeding it Terumah. If he does not have to replace it if it is "Meisah Machmas Melachah," then it is not considered to be his.

Rashi, though, holds that as long as he accepted responsibility for secondary liability, other than the actual depreciation due to working it, he is considered the owner. Even though he is not the owner when it comes to depreciation as a result of normal wear and tear, he may feed it Terumah. It is that depreciation for which he pays a rental fee, and that is why the rental fee is not Ribis. (In the case of a normal rental, in which the person renting did not accept full responsibility, the renter is not considered the owner his rent does not cover the *outside*, secondary factors that could cause it to depreciate.)

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