Baruch Hashem, we have covered the gist of the heter iska. We’ve learned that the money borrowed is an investment, and the borrower pays dividends, not interest. There must be an investment of sorts on the borrower’s end, and the returns should be a reflection of possible revenue. We also know that theoretically the borrower can avoid paying the returns if he can prove a lack of profit.
The heter iska is employed to prevent the issur of ribbis. It’s important to recognize the severity of the issur that is being resolved by making the loan into an iska.
There is a difference between borrowing from the bank and depositing (i.e., lending) to the bank. Regarding lending to the bank, since the bank is a limited liability company and therefore only the bank’s assets are owed to the lender (without a personal responsibility), Rav Moshe Feinstein, zatzal, held that there is no problem of ribbis, and therefore there is no need for a heter iska at all. This position was not accepted by most of the poskim in Eretz Yisrael; however, many of them agree that this causes the ribbis to be only mideRabbanan. This applies to most interest-earning accounts in banks.
(If the bank does not guarantee the returns but rather it offers to invest your money for you in a third-party company, the bank is not the borrower, but is rather an agent, and it’s necessary to have a heter iska from the company receiving the money.)
This above is true when lending to the bank. However, borrowing from the bank involves ribbis that is assur min haTorah.
As we can see, the heter iska is a complex legal document, and not all of them are created equal. Although virtually all of the heter iskas employed by the banks are acceptable, the standards vary, and it’s worthwhile investigating the standard of a particular bank and letting that be a factor in deciding from which bank to borrow or lend.
The same way we are careful with the hechsherim we eat and we don’t assume every hechsher is perfect, although there may be no outright Torah prohibitions involved, we should most certainly be careful with the heter iska we are using to avoid many issurim min haTorah.
