Rabbi Jachter's Halacha Files

(and other Halachic compositions)

Parshat Ki Teitzai

13 Elul 5768

September 13, 2008

Vol.18 No.1

Shemittat Kesafim and Prozbul - Part 1

by Rabbi Chaim Jachter

Introduction

Since the conclusion of the Shemittah year is imminent, we shall devote this week’s discussion to Shemittat Kesafim and Prozbul, and discuss whether Shemittat Kesafim today is a Biblical obligation, a Rabbinical obligation, or perhaps not an obligation at all. We shall also discuss Hillel’s Takanah (Rabbinical enactment) of Prozbul, some details regarding how to execute this document, and what to do if one did not sign a Prozbul.

Shemittat Kesafim – Is there an Obligation to Observe this Mitzvah 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. Rambam (Hilchot Shemittah VeYovel 9:2) and the Shulchan Aruch (Choshen Mishpat 67:1) rule that Shemittat Kesafim today constitutes only a Rabbinic obligation, as Shemittat Kesafim’s mandate is integrally linked with the Yovel (Jubilee); therefore, Shemittat Kesafim applies only when the majority of the Jewish People reside in Eretz Yisrael, as Yovel does (see VaYikra 25:10). Accordingly, Shemittat Kesafim might become, once again, a Biblical obligation when, within the next two decades (and for the first time in approximately two thousand five hundred years), a majority of Jews are projected to live in Eretz Yisrael (statistics indicate that the majority of Jewish children below the age of seven already reside in Israel). Ramban (Sefer HaZechut, Gittin Rif’s folio 19), on the other hand, asserts that Shemittat Kesafim is a Torah obligation even nowadays in accordance with the view of Rava (Gittin 36b according to Rashi’s explanation). Rama (C.M.67:1) notes that the consensus view is that Shemittat Kesafim today is a Rabbinic obligation.

Surprisingly, Rama (ibid.) records a tradition among Ashkenazic Jews not to practice Shemittat Kesafim. This reflects the opinion of Raavad (Gittin Rif’s folio 19) that observance of Shemittat Kesafim today is not obligatory but merely a pious act. In fact, the Rosh (cited by the Tur C.M. 67) initially exclaimed surprised at and bitterly complained about the Spanish Jews’ practice of not observing Shemittat Kesafim, but later compromised by neither endorsing nor expressing his objection to their practice. Many Poskim throughout the generations devised creative arguments to justify this practice. These Poskim include the Maharik (number 92), Terumat HaDashen (number 304), the S’ma (67:4), Teshuvot Mishkenot Yaakov (2 C.M.36), and the Aruch HaShulchan (C.M. 67:10). Interestingly, Rav Yosef Karo, unlike Rosh, does not mention this practice of Spanish Jewry.

In the nineteenth century, however, Ashkenazic Jews once again began observing Shemittat 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, concluding that a God fearing individual should observe Shemittat Kesafim. Even the Aruch HaShulchan, who most often vigorously defends commonly accepted practices, urges a God fearing individual to observe Shemittat Kesafim, and emphasizes that it is very simple to observe Shemittat Kesafim since one merely has to execute a Prozbul to collect his loans after the Shemittah year; moreover, he notes that Shemittat Kesafim is observed in many places, especially throughout Lithuania.

Today all observant Jews observe Shemittah, perhaps due to 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 expert Batei Din and many Jews living in Israel. He writes that nowadays (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 Shemittat Kesafim properly, especially due to its easy execution.

Implementing Shemittat Kesafim

We should note some Halachot regarding Shemittat Kesafim. First, only loans that are due before Shemittah’s completion are cancelled by Shemittat Kesafim (Shulchan Aruch C.M. 67:10 and see Teshuvot Yechaveh Daat 4:62). Second, Rambam (Hilchot Shemittah VeYovel 9:4) and the Shulchan Aruch (C.M. 67:30) permit one to demand payment of the loan until the last moment of the Shemittah year. Rosh (Gittin 4:18) and the Tur (C.M.67), however, believe that even though loans are canceled only at the Shemittah year’s conclusion, a lender is forbidden to demand payment of a loan from the beginning of the Shemittah year; therefore, they assert that one cannot write a Prozbul once the Shemittah year has begun. Lubavitch Chassidim follow the Shulchan Aruch HaRav’s recommendation (Hilchot HaLevaah 36) to write a Prozbul before the Shemittah year’s advent; however, the Beit Yosef (C.M. 67 s.v.VeEin Kotvim) records that the commonly accepted practice is to write a Prozbul only at the Shemittah year’s end. The Chatam Sofer (Teshuvot C.M. 50) affirmed the latter practice’s validity to a student who wished to write a Prozbul before the Shemittah year’s advent. He records that his eminent Rebbe (Rabbinical mentor), Rav Natan Adler, did not write a Prozbul before Shemittah, as the vast majority of Rishonim reject Rosh and the Tur’s opinions. Rav Ovadia Yosef (Teshuvot Yechaveh Daat 4:62) concludes that one should follow the common practice to write a Prozbul only at the end of the Shemittah year.

The Mishnah 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,” which means either “I cancel the loan,” or “the loan is cancelled” (for further discussion of the true definition, see the Mordechai, Gittin 380). If the borrower states that he wishes to pay, even if he is not mandated to do so, the lender may accept the money if the borrower gives it as a present (see Shulchan Aruch C.M. 67:36). The Mishnah (Sheviit 10:9) praises a borrower who returns a loan after Sheviit 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 stringent letter of the law. This is an example of what Rav Yosef Dov Soloveitchik taught (cited by Rav Walter Wurzburger, “Ethics of Responsibility,” p.32), “Halachah is not a ceiling but a floor.” For an explanation for why it is proper to repay the loan if possible, see Rav Elchanan Samet “Iyunim BeParashiot HaShavua,” Volume one, Parashat Re’eih.

Prozbul

The Mishnah (Sheviit 10:3) records that Hillel the Elder devised the Prozbul document to facilitate collection of loans after the conclusion of the Shemittah year. The Mishnah records that his motivation was that people refused 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 Hillel could abrogate a Torah law. Abaye responds that Hillel was able to do this because Shemittah observance today is only a Rabbinic obligation. Indeed, Rambam (Hilchot Shemittah VeYovel 9:16) writes that when Shemittat Kesafim will again be a Torah obligation, a Prozbul will no longer be effective. Raavad (ad. loc.), however, follows Rava that Prozbul can be effective even when Shemittat Kesafim is a Torah obligation, due to Beit 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) understand Rava very differently than Raavad.

A Prozbul’s Mechanics

The Prozbul mechanism (according to Rashi, Makkot 3b s.v. Moseir Shetarotav; see Tosafot ad. loc. s.v. HaMoseir Shetarotav) is that one transfers authority to the Beit Din to collect his loans. The lender does not violate the prohibition to collect his loans after Shemittah has passed, because fundamentally Beit Din collects the loan, and the lender merely acts as Beit Din’s agent to demand payment of his loans. The prohibition to demand the loan after Shemittah applies only to an individual, not to Beit Din.

There are two ways to execute a Prozbul (see Shulchan Aruch C.M. 67:21, Aruch HaShulchan C.M. 67:10, and Rav Ovadia Yosef, Teshuvot Yechaveh Daat 2:63). One alternative is to appear before Beit Din and declare that he submits all his loans to Beit Din before him. A second alternative is to appear before two individuals and inform them that they are witnesses to the transfer of his loans to a particular Beit Din, and the named Beit Din need not be present in order to execute a Prozbul in this manner.

The Shulchan Aruch and Rama (C.M. 67:18) disagree about the composition of a Beit Din for the purpose of a Prozbul. The Shulchan Aruch requires that it be a Beit Din of eminent stature whose members are experts in general Halachah, specifically authoritative regarding Prozbul laws, and whose expertise is recognized by the local community. Rama, however, rules that any Beit Din is acceptable for writing a Prozbul. Accordingly, Ashkenazic Jews often assemble an ad hoc Beit Din of three observant males to execute a Prozbul before them. Rav Ovadia Yosef (Teshuvot Yechaveh Daat 2:63) writes that it is proper for Sephardic Jews to execute a Prozbul before witnesses that he submits his loans to a Beit Din Chashuv (of eminent stature). It is far easier to find a Beit Din Chashuv to mention in the Prozbul than to assemble an actual Beit Din Chashuv before whom to execute the Prozbul.

Conclusion

Shemittat Kesafim is especially easy to execute nowadays, as Prozbul forms are available on the Internet. Forms are available on The Rabbinical Council of America’s website: www.rabbis.org.