(2001/5761)
Since the conclusion of the Shemittah year is near, we shall devote this week’s discussion to Shemitat Kesafim and Pruzbul. We shall discuss whether Shemitat Kesafim today is a Torah level obligation, a rabbinical obligation, or perhaps not an obligation at all. We shall discuss Hillel’s Takana of Pruzbul and some of the details regarding how to execute this document and what to do if one did not sign a Pruzbul.
Shemitat Kesafim – Is there an Obligation to Observe this Mitzva Today?
The Torah (Devarim 15:1-12) teaches that loans are cancelled at the conclusion of the Shemittah year. After the year has passed, lenders are forbidden to demand payment from borrowers. The Rambam (Hilchot Shemittah Veyovel 9:2) and Shulchan Aruch (Choshen Mishpat 67:1) rule that Shemitat Kesafim today constitutes a rabbinic obligation. They explain that Shemitat Kesafim applies only when Yovel applies. Yovel, in turn, applies only when the majority of the Jewish People live in Eretz Yisrael. Hence, Shemitat Kesafim applies only when the majority of the Jewish People live in Eretz Yisrael (see Vayikra 25:10). Accordingly, Shemitat Kesafim might be restored as a Torah level obligation within the next three decades when it is expected that (for the first time in approximately two thousand five hundred years) a majority of the Jewish People will be living in Eretz Yisrael (statistics indicate that already the majority of Jewish children below the age of five reside in Israel). The Ramban (Sefer Hazechut Gittin 19 in the pages of the Rif) asserts that Shemitat Kesafim is a Torah obligation even today in accordance with the view of Rava (Gittin 36b according to Rashi’s explanation). The Rama (C.M.67:1) notes that the consensus view is that Shmitat Kesafim today is a rabbinic obligation.
Surprisingly, the Rama (ibid.) records a tradition among Ashkenazic Jews not to practice Shemitat Kesafim. This reflects the opinion of the Raavad (Gittin 19 in the pages of the Rif) that observance of Shmitat Kesafim today is not obligatory but merely a pious act. In fact, the Rosh in a responsum (cited by his son the Tur C.M. 67) records his astonishment when he discovered this practice upon assuming his rabbinic position in Spain (he was originaly from Germany). The Rosh writes that at first he complained bitterly about this practice of Spanish Jewry. Later he became reconciled to this practice somewhat to the extent that he would neither endorse this practice nor express his objection to it. Many Poskim throughout the generations devised creative arguments to justify this practice. These Poskim include the Maharik (number 92), Trumat Hadashen (number 304), the Sma (67:4), Teshuvot Mishkenot Yaakov (2 C.M.36), and Aruch Hashulchan (C.M. 67:10). Interestingly, although the Rosh mentions this as a custom of Spanish Jewry, Rav Yosef Karo does not mention this practice.
However, it seems that the tide began to turn in the nineteenth century and Ashkenazic Jews once again began observing Shemitat Kesafim. First, the Pitchei Teshuva (C.M. 67:1) refers to the Ashkenazic practice as “an extraordinary leniency” and notes that the various justifications offered for this practice are hardly convincing. The Pitchei Teshuva concludes that a God fearing individual should observe Shemitat Kesafim. Even the Aruch Hashulchan, who most often vigorously defends commonly accepted practices, urges a God fearing individual to observe Shemitat Kesafim. He emphasizes that it is very simple to observe Shemitat Kesafim since one merely has to execute a Pruzbul to enable one to collect his loans after the Shemittah year. Moreover, he notes that in many places Shmitat Kesafim is observed and that in Lithuania all Jews observe Shmitat Kesafim.
Today it appears that all observant Jews observe Shemittah. This might be because of our heightened awareness of Shemittah as Israel occupies such a major part of our conscience. Moreover, the Mishkenot Yaakov’s defense is that the rabbinic obligation applies only when there are both expert Batei Din and many Jews living in Israel. Today, he writes (in the nineteenth century) “Because of our many sins, the land is destroyed and foreigners rule over it, few people live there, there is no plowing or planting [performed by Jews]; how can we say that there is any observance of Shemittah.” Since this justification is, Baruch Hashem, no longer relevant, there is greater motivation to observe Shemitat Kesafim properly, especially since it is very easy to do.
Implementing Shemitat Kesafim
We should note some Halachot regarding Shemitat Kesafim. First, only loans that come due before Shemittah is completed are cancelled by Shemittah (Shulchan Aruch (C.M.67:10 and see Teshuvot Yechave Da’at 4:62). Second, the Rambam (Hilchot Shmittah Veyovel 9:4) and Shulchan Aruch (C.M. 67:30) permit one to demand payment of the loan until the last moment of the seventh year. The Rosh (Gittin 4:18) and Tur (C.M.67) however, believe, that even though the loans are canceled only at the conclusion of the Shemittah year, a lender is forbidden to demand payment of a loan from the beginning of the Shemitta year. Hence, the Rosh and Tur assert that one cannot write a Pruzbul once the Shemittah year has begun. Lubavitchers follow the Shulchan Aruch HaRav’s recommendation (Hilchot Halvaah 36) to write a Pruzbul before the start of the Shemittah year. However, the Bait Yosef (C.M. 67 s.v.V’ein Kotvim) records that the commonly accepted practice is to write a Pruzbul only at the end of the Shmittah year. The Chatam Sofer (Teshuvot C.M. 50) affirms the validity of this practice to a student who wished to write a Pruzbul before the beginning of the Shemittah year. He records that his eminent Rebbe, Rav Natan Adler, did not write a Pruzbul before Shemittah as the vast majority of Rishonim reject the opinion of the Rosh and Tur. Rav Ovadia Yosef (Teshuvot Yechave Daat 4:62) concludes that one should follow the common practice to write a Pruzbul only at the end of the Shemittah year.
The Mishna in Sheviit (10:8) teaches that if a borrower wishes to repay the loan after the conclusion of the Shemittah year, the lender should state “Meshamet Ani.” For a discussion of whether this statement means “I cancel the loan” or “the loan is canceled,” see the Mordechai (Gittin 380). If the borrower states that nevertheless he wishes to pay, the lender may accept the money if the borrower gives the money as a present (see Shulchan Aruch C.M. 67:36). The Mishna (Sheviit 10:9) praises a borrower who returns a loan after Sh’vi’it as one with whom “the spirit of the rabbis is pleased.” This means that he acts in an ethical manner and not merely in accordance with the strict Halacha. This serves as an example of what Rav Yosef Dov Soloveitchik teaches (cited by Rabbi Walter Wurzburger, Ethics of Responsibility, p.32), “Halacha is not a ceiling but a floor.”
Pruzbul
The Mishna (Sheviit 10:3) records that Hillel the Elder devised the Pruzbul document to facilitate collection of loans after the conclusion of the Shemittah year. The Mishna records that his motivation was seeing people refusing to extend loans towards the end of the Shemittah year, in violation of the Torah’s explicit order against this (Devarim 15:9). The Gemara (Gittin 36a) asks how could Hillel abrogate a Torah law. Abaye responds that Hillel was able to do this because Shemittah observance today is only a rabbinic obligation. Indeed, the Rambam (Hilchot Shemittah Veyovel 9:16) writes that when Shemitat Kesafim will again be a Torah obligation, a Pruzbul will no longer be effective. The Raavad (ad. loc.), however, follows Rava that Pruzbul can be effective even when Shemitat Kesafim is a Torah obligation. Rava asserts that a Pruzbul is effective because of Bait Din’s ability to declare someone’s possessions ownerless. Hence, although on a Torah level the borrower does not owe money, the Torah authorizes Chazal to transfer the value of the loan from the borrower to the lender. We should note that Tosafot (Gittin 36a s.v. Mi Ikka) understands Rava very differently than the Raavad.
The Mechanics of a Pruzbul
The mechanism of the Pruzbul (according to Rashi, Makkot 3b s.v. Moseir Shtarotav; see Tosafot ad. loc. s.v. Hamoseir Shtarotav) is that one transfers authority to the Bait Din to collect his loans. The lender does not violate the prohibition to collect his loans after Shemittah has passed, because fundamentally Bait Din collects the loan. The lender acts as an agent of the Bait Din to demand payment of his loans. The prohibition to demand the loan after Shemittah applies only to an individual, but not to a Bait Din.
There are two ways to execute a Pruzbul (see Shulchan Aruch C.M. 67:21, Aruch Hashulchan C.M. 67:10, and Rav Ovadia Yosef, Teshuvot Yechave Daat 2:63). One alternative is for one to appear before a Bait Din and declare that he submits all of his loans to the Bait Din before him. A second alternative is to appear before two individuals and inform them that they are witnesses to the submission of his loans to a particular Bait Din. The named Bait Din need not be present in order to execute a Pruzbul in this manner.
The Shulchan Aruch and Rama (C.M. 67:18) disagree about the composition of a Bait Din for the purpose of a Pruzbul. The Shulchan Aruch requires that it be a Bait Din of eminent stature whose members are experts in Halacha in general and the laws regarding Pruzbul in particular and whose expertise is recognized by the local community. The Rama, however, rules that any Bait Din is acceptable for writing a Pruzbul. Accordingly, Ashkenazim often assemble an ad hoc Bait Din of three observant males to execute a Pruzbul before them. Rav Ovadia Yosef (Teshuvot Yechave Daat 2:63) writes that it is proper for Sephardim to execute a Pruzbul before witnesses that he submits his loans to a Bait Din Chashuv (of eminent stature). It is far easier to find a Bait Din Chashuv to mention in the Pruzbul than to assemble an eminent Bait Din before whom to execute a Pruzbul.
Conclusion
We have added as an addendum to this essay, the list of instructions for Pruzbul forms that the Beth Din of America (of the Rabbinical Council of America and the Orthodox Union) has distributed to rabbis throughout the country. I thank Rav Yonah Reiss for his kind permission to reprint these instructions in the Kol Torah. Please consult your Rav with any questions you might have concerning this time bound matter.