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Shulchan Aruch, Choshen Mishpat 292:7 states the following halachah (from Bava Metzia 43a):

If Reuven deposits money with Shimon (a moneychanger or storekeeper) for safekeeping, Shimon is entitled to use the money for his business and replace it with other funds. (This is different than other kinds of deposits, where he is expected to return the same item as was deposited with him.) Once he actually uses the money, he is fully responsible for anything that happens - even if it was lost in an unavoidable accident - and will have to repay Reuven.

Now, presumably, anytime Reuven deposits something with Shimon, he can stipulate that Shimon should rent the thing out and they'll split the profits.

So now, take the case of an iska (a partnership where one person puts up the capital for a business, the other one will manage it, and they'll split the profits). The Gemara (Bava Metzia 104b) characterizes such an arrangement as "half loan and half deposit," and therefore this creates a problem of ribbis, because the managing partner is effectively doing the financier a favor in accepting and managing the deposit in return for having received the loan. In turn, this necessitates a heter iska to make the transaction permissible (by stipulating that the managing partner will receive a wage for his labor, plus other details intended to reduce the financier's exposure to risk as much as possible within the parameters of the laws of ribbis).

Why, though, can't we just do it more simply? Why doesn't halachah just declare all of the capital a deposit rather than a loan, and then there is no problem: the managing partner is fully responsible (or, for that matter, he and the financier can arrange other terms, such as that he's responsible for only half of the money), and they can split the profits freely without any ribbis problems, because there's no loan?

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Would this work even if Shimon does not end up investing the money, or if he invests it and does not realize the expected amount of profit? – Dave May 8 '12 at 16:35
@Dave: in a standard heter iska, Shimon states that if he wants to claim a loss, he has to substantiate it with trustworthy witnesses. Not sure about what happens if he doesn't invest it, although since that is one of the terms under which the agreement is executed, then I guess if he fails to do so it's like any other breach of contract. – Alex May 8 '12 at 20:56
That's my point. With an iska, the "profit" needs to be paid regardless of what was done with the money. With the arrangement you suggested, the financier's "return on investment" would be contingent on his friend's financial acumen (or lack thereof). – Dave May 8 '12 at 21:57
Ah, good point. – Alex May 8 '12 at 22:45
up vote 5 down vote accepted

The Shach there quotes Rif, who says that once the money is spent, the deposit converts to a loan, and that is why "Shimon" is responsible for all losses. This is only logical: The difference between a deposit (pikadon) and a loan (halva'ah) is that with the former, one returns the item itself, whereas with the latter, one is responsible to repay the value of the item. So in your case, it doesn't end up being a deposit at all, but rather a loan, so all the usual ribbis restrictions would apply.

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Ribbis involves paying the lender money above and beyond the principal. In the case of a deposit, there would be no circumstance in which the guardian would be obligated to pay back more than the amount of money that was placed in his safekeeping and the issue of ribbis simply would not arise.

The guardian's greater degree of obligation after using the money is because by using the money he changes himself from a shomer (guardian) (where the obligation is to protect the physical pikadon, in this case, cash) into a loveh (not a sho'el), who is obligated to pay back a specific sum of money but has no obligation with regard to the physical object placed under his supervision. As Dave pointed out, once he is a loveh, all the conventional rules of ribbis would apply.

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