Our Gemara on Amud Beis describes a legal loophole, that allows for something akin to charging interest, which is normally forbidden. It is the framework on which modern day heterei iskas are formulated. Without going into the legal technicalities, we must ask ourselves is it moral to take advantage of a loophole. But in order to answer that, we must ask ourselves what is the function of a loophole.

Law is confining and constricting. It doesn’t make a difference whether you are dealing with Torah law or secular law. This is because you cannot change the definition of something and the ways in which the system compresses and causes the participants and features to behave in response to that systemic pressure. A law is a human process by which general principles of welfare for a large group are imposed upon everybody in a net gain scenario. Law applies general rules to help society, even if certain individuals do not benefit or even suffer. This is by definition a necessity for law. It is only logical because if there were a way to meet all the needs of every individual in a non-contradictory fashion you wouldn’t need law. Why decree something when it is self-evident benefit everybody? Law is not Torah, but Torah is a form of law. The Torah takes many human processes and adapts them within a structure of commandments. As an extreme example, having babies or eating is a human process, but it is co-opted and directed by the Torah in a particular fashion. This is what the Torah does with Law. Law is human and Torah uses the process of law.

The Rambam famously explains in the Guide for the Perplexed (III:34) that the commandments are generally for one of three purposes: To promote physical health, spiritual health, or the smooth running of society. But just as general welfare and survival are provided by natural processes, yet individuals may have diseases or defects that nature does not protect them from, so too the Torah is designed to help the majority, and we might even say the minority for the majority of the time. But there may be times, or individuals, in which the Torah causes suffering and individuals at individual moments are hurt by a particular Torah requirement. 

Caution is required here in understanding Rambam’s idea. He is not advocating that an individual customize his Torah obligations, even if he could verify with absolute certainty that this aspect of the Torah holds him back from experiencing “shleimus”. This person must still follow the laws. This is similar to civil law: One is not exempt from obeying the law that is designed to promote the greatest good and common welfare, even if he can offer a strong argument why it does not promote his personal welfare. The Torah is still a legal system aside from a spiritual system. So even though Rambam states firmly that it is indeed possible for a Torah requirement to be in some way unhelpful or destructive to an individual at a certain point in time or in life, the legal obligations remain unchanged. 

This helps us understand the function of a legal loophole.  It is moral and ethical when it is done with the sober and seasoned judgment of a pious, empathic sage - because it fights fire with fire, so to speak. The same strictures that compel and sometimes affect people and situations in an arguably unfair and sweeping manner can be manipulated to free them. Loopholes should not be used to become a Naval Bereshus HaTorah (a morally disgusting person who behaves within the confines of what is technically permitted.) Rather, loopholes should be used to rectify and adjust some thing that apparently is no longer working, and after careful consideration, the rabbis of the generation used whatever tools they have to shift the law. Loans in particular, is an area where there already is precedent for this kind of rabbinic activity. Long ago, the great sage, Hillel, instituted the Pruzbol which used a legal loophole (transfer of debt to real estate liens by the Sanhedrin) to circumvent the cancellation of debts during the Shemittah year (Mishna Gittin 4:3). On the surface, what could be more cynical and disrespectful to Torah law than to effectively neutralize via judicial manipulation what is an innovative and brave, socially ideal model of canceling debts every seven years? This idea of canceling debt is so self-conscious and clear that there is no way that anybody could minimize the intention of the Torah, which is obviously to limit a sense of personal attainment of wealth and increase a sense of brotherhood and shared fate with those who are less successful financially. How could Hillel have done such a thing, even if it was technically legal? The answer given by our sages is that Hillel saw that as the sabbatical year drew near, it became too great of a test to not withhold lending. And, the mere act of withholding based on that fear is itself a prohibition. As it states (Devarim 15:9):

Beware lest you harbor the rebellious thought, “The seventh year, the year of remission, is approaching,” so that you are mean and give nothing to your needy kin…

Hillel did not want people to continuously violate this commandment, so he found a loophole to work around the nullification of debts. But if everybody was eating swine, would we find a way to permit it? Obviously not. The deeper issue must be that Hillel, with a seasoned sagely tradition of the depths of Torah, values and intentions, ascertained that the economic realities changed enough.  Lending of money and payment of loans occupied a different emphasis in life. Money is money, and lending is lending, but the more complex the economy is the more one is subject to fiscal dynamics. Hillel felt that the loophole was appropriate, given the needs of the generation and the fiscal realities.

Therefore, at some point the collective rabbinic consciousness took a feature of the law, built on precedents such as the iska of our Gemara and began using it in a wholesale fashion. But just as the Pruzbol was made to preserve a deeper need over that particular law of debt cancellation, because of people did not lend money there would be no debts to cancel. In the case of lending money before Shemittah, if no one would lend money that year, in the end, people on the lower end of the financial class would suffer more. So too in regard to usury, while money lenders can be exploitative, the ability to lend money freely and charge reasonable interest, actually benefits everybody in the economy. Think of the American way of life where it is impossible for anyone who is middle-class to purchase a home without the ability to obtain a mortgage. This system is a cornerstone of the economy and cannot easily be eliminated.

Another interesting loophole is how chametz is sold by many people before Pesach. Although there are some who do not utilize this heter, the argument in favor of it is similar. Modern life necessitates a different relationship with food and how we store it. While in earlier times grain could be stored in a fashion where it was not considered chametz, our flour is already considered chametz, aside from frozen foods, canned foods, etc. It is not economically feasible for most people to destroy chametz every Pesach. 

We see therefore, that judiciously applied loopholes are an appropriate way of preserving the law and working within the law. This is true for secular as well as Torah systems because just as electricity behaves like electricity no matter where you are, Law behaves like Law no matter where you are.

Translations Courtesy of Sefaria, except when, sometimes, I disagree with the translation

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