Plowing. Sowing seed. Laying fallow. These are the kind of terms normally used in a discussion of the laws of Shemittah. They have an unmistakably earthy feeling and those of us that are city dwellers may not easily relate to them. However, there is an area of Shemittah observance that involves an aspect of life to which all of us can relate –our money.
Sources and Myths
In parshas Reah the Torah states, “At the end of seven years you shall institute a Shemittah (release)… Every creditor shall release his authority over what he has lent his fellow Jew; he shall not press his fellow Jew…” (Devarim 15:1-2) Chaza”l explain that these words present us with two commandments. Firstly, there is a positive commandment to declare that we waive our right to collect any loans that were payable during the year of Shemittah. Secondly, the Torah commands us to refrain from demanding payment of those loans. Later on in the same passage (Devarim 15:9), the Torah obligates us in a third Shemittah commandment. There the Torah states that when making a decision whether to lend money one is not allowed to take into account the possibility that Shemittah may release the loan. The concept that is formed by these three mitzvos is called Shemittas Kesafim, ‘the release of monies’. Surprisingly, though the agricultural Shemittah only applies in the land of Israel, the mitzvos of Shemittas Kesafim are incumbent upon every Jew wherever he may find himself.
On the surface, our present observance of Shemittas Kesafim bears very little resemblance to that which the Torah describes. Unlike in olden times, today’s Jewish courts rarely, if ever, enforce the release of a loan due to Shemittah. The rabbinic enactment of the pruzbal, which is a main cause for this change, is often misunderstood. Unfortunately, the procedure of making a pruzbal leaves the onlooker with the feeling that he had just witnessed some kind of magic which somehow makes the mitzvah of Shemittas Kesafim disappear. The purpose of this article is to demystify this often poorly understood subject.
Let us ask a fundamental question regarding Shemittas Kesafim. In our day and age is our responsibility to keep the laws of Shemittas Kesafim a Torah obligation or a rabbinic decree? The Rambam rules that today the observance of Shemittas Kesafim is no longer an obligation from the Torah. This is because the Torah made Shemittas Kesafim contingent on the observance of the laws of the Yovel, the Jubilee, which cannot be observed when we are in exile. However, our present observance of Shemittas Kesafim is a mitzvah of rabbinic origin. The reason that Chaza”l made this decree is so that the Torah concept of Shemittas Kesafim should not be forgotten. This view is held by the overwhelming majority of halachic authorities.
The view of the Ramban represents a more stringent opinion. He considers today’s Shemittas Kesafim observance to be min haTorah, a Torah law that is still in effect. He contends that the supposition that Shemittas Kesafim is contingent on the Yovel is not true. In fact, the Ramban states that even if today’s agricultural Shemittah in the land of Israel is of rabbinic origin, the status of Shemittas Kesafim is still one of Torah law. At the other extreme, there is the opinion of the Baal HaMeor. He would consider today’s observance of the laws of Shemittas Kesafim to be an obligatory custom.
The Pruzbal Concept
Due to the intervention of Chaza”l, Shemittas Kesafim as we know it today does not normally require any real financial loss. In fact, it has been that way since the times of Hillel the Elder, who was the leader of the generation that immediately preceded the destruction of the Second Temple. Hillel saw that the rich were refraining from lending to the poor because of a fear that their loans would be cancelled by Shemittah. In fact this behavior is exactly what the Torah prohibited in Devarim 15:9 as we have learned.
With his great wisdom, Hillel decided it would be best to minimize the damage. He devised a legal instrument which would, in effect, circumvent Shemittas Kesafim while at the same time maintain at least a semblance of adherence to it’s halachos. Hillel’s enactment saved the rich from flagrantly ignoring the prohibition of refusing to give a loan because of the fear of Shemittah. Now, they would be able to collect their money. Furthermore, Hillel’s innovation was also intended to help the poor by alleviating the difficulty they had in obtaining loans. Hillel called this new innovation a pruzbal, which is a shortened form of the Aramaic expression pruzbulti, ‘an enactment for the rich and the poor.’
How does Hillel’s pruzbal circumvent the laws of Shemittas Kesafim without abolishing them entirely? In order to accomplish this, Hillel used an existing halacha and then, with the authority that was given to him by the Torah, he extended it further, as will be explained.
According to the Torah, Shemittas Kesafim only applies to a loan in which payment is being demanded solely by the lender himself and not with the help of a bais din, a Jewish court. If, however, the lender had already entrusted collection of the loan to a bais din before the onset of Shemittas Kesafim, then that loan will not be subject to the laws of Shemitta. One explanation given for this halacha is that the Torah prohibition not to press a borrower for payment only refers to the lender himself but not to a bais din.
Although this halacha does circumvent Shemittas Kesafim, widespread use of this loophole would prove quite impractical. This is due to the fact that the only legally recognized method by which a lender entrusts a bais din to collect the debt owed to him is by physically giving his loan document to the bais din. Typically, a lender would think twice before he relinquishes control of his loan document to anyone, including a bais din.
The halachic innovation of the pruzbal was to allow the lender to make a verbal declaration in front of the bais din or in front of two witnesses in which he states that he entrusts the bais din to collect his debts for him. This would take the place of actually giving documents to the bais din. In fact, Hillel went so far as to empower a pruzbal declaration with the ability to entrust a loan even when no loan document was written at all. This declaration must also be written down and signed by the three judges that comprise the bais din or, alternatively, by the two witnesses who hear his declaration. There is a difference of opinion regarding the validity of a pruzbal that was made by verbal declaration but was not written down.
By what authority did Hillel make this enactment? This is an especially troublesome question in light of the Ramban’s understanding that Shemittas Kesafim is always a Torah obligation. According to that opinion, Hillel’s pruzbal is a direct contradiction to the Torah! The Gemara asks this question. According to the Ramban, the Gemara answers that with regard to monetary matters, the Torah itself empowers the Jewish court with the authority to seize the assets of one individual and give them to another if the court has a legitimate reason to do so. In effect, this is what Hillel did when he enacted the pruzbal. In this sense, the pruzbal does have an aspect of ‘rabbinic magic’ to it. However, it is very important to understand that this ‘magical power’ was entrusted to them by the Torah to be used sparingly and with clearly defined guidelines.
Pruzbal Dos and Don’ts
In its simplest form, the formulation of the pruzbal declaration is quite short. It reads, ‘I give over to you, the judges of the bais din, the authority to collect my debts so that through you I may collect any debt owed to me at any time I wish.’ A number of pruzbal forms have been published over the years. While all of them have this basic wording at their heart, each one is different. Some were written to cover specific situations. Others were created to deal with various halachic concerns. One should consult with someone knowledgeable in the laws of Shemittas Kesafim in order to choose the pruzbal form that is most appropriate for one’s personal situation.
Obviously, a pruzbal must be done in a halachically correct fashion for it to be effective. According to both the Rambam and the Ramban whose opinions were discussed previously, if a pruzbal is deemed invalid, then when Shemittas Kesafim arrives the money that was lent by the writer of that pruzbal will be lost. This is because they both consider Shemittas Kesafim to be a full-fledged mitzvah. However, Rabbi Moshe Feinstein, zt”l, rules that when a significant financial loss would occur, the lender may rely on the more lenient opinion of the Baal HaMeor in order to demand payment. However, before relying on this opinion, a prominent halachic authority must be consulted.
For a pruzbal to be deemed valid it must be done through a halachically valid convening of bais din. Therefore, the judges should not be related to each other, nor to the lender or to the borrower. If by mistake this happens, one should consult with a halachic authority.
Furthermore, there exists a difference of opinion as to the stature required of a bais din before it is allowed to execute a pruzbal. Some authorities allow the bais din to be comprised of three people who know something of the laws of Shemittas Kesafim and pruzbal. However, others rule that a pruzbal can only be done in front of the recognized bais din of the city. If no such bais din exists in the city, then the pruzbal can only be written by themost recognized bais din of the generation. One should ask someone familiar with the making of a pruzbal as to how to accomplish this in a relatively simple way. It is praiseworthy for one to follow this second opinion if possible.
When making a pruzbal, an interesting stipulation regarding the status of the debtor should be kept in mind. A pruzbal can only work when the debtor owns or rents at least a modicum of land. The rationale behind this halacha is somewhat complex and beyond the scope of this article. When the borrower is completely supported by his parents as in the case of a young child or adolescent it is quite possible that he does not have legal ownership of any land. In such a case, competent halachic advice should be sought.
And finally, one might ask why this article is being presented now at the end of the Shemittah year. The answer is as follows. One of the halachos of the pruzbal is that it cannot be effective on money that was lent after the pruzbal was written. This means that, in order to include all the loans that one has made, the pruzbal should be written as close as possible to the time at which all loans are cancelled by the Shemittah. There is an opinion that sets that time at the beginning of the Shemittah year. In fact, there are those that are concerned for this opinion and therefore, make a pruzbal immediately before the Shemittah year begins. However, the accepted opinion is that Shemittas Kesafim occurs at the end of the year. Therefore, the custom has developed to write the pruzbal on the morning of the last day of the Shemittah year. If you haven’t noticed, that day is fast approaching.