Shemitat Kesafim

Last week we noted that many misunderstand Shemitat Kesafim as the cancellation of loans at the end of the shemitah year. The misunderstanding extends to the pruzbul, which they view as a way to sidestep a seemingly senseless law.

However, we explained that Shemitat Kesafim is entirely sensible. Loans are not canceled at the end of shemitah. The Torah expects the lender to refrain from pressuring the borrower to repay the loan until he recovers from shemitah observance. Borrowers, in turn, are expected to repay the loan when they financially recover from shemitah. If borrowers take advantage of Shemitat Kesafim, lenders can appeal to bet din to pressure the borrower to pay.

Pruzbul

In light of our explanation of Shemitat Kesafim, we can explain the pruzbul. The Mishna (Sheviit 10:3) records that Hillel the Elder devised the pruzbul document to facilitate the collection of loans after the conclusion of the shemitah year. Furthermore, the Mishna records that his motivation was people refusing to extend loans towards the end of the shemitah year, violating the Torah (Devarim 15:9).

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 bet din to collect his loans. The lender does not violate the prohibition to collect his loans after shemitah has passed because bet din collects the loan. The lender acts as an agent of the bet din to demand payment of his loans.

The prohibition against demanding the loan after shemitah applies only to an individual but not to a bet din. The Torah (Devarim 15:2) states “lo yigos,” in the singular—an individual may not pressure the payment of a loan post-shemitah.

The Beth Din of America Pruzbul Form of 2015

Here is what an actual pruzbul looks like (the base text appears in the Mishna, Shevi’it 10:4; the Beth Din of America published the form below in 2015):

Pruzbul Form Before Witnesses for Submission to Beth Din of America (English)

In the presence of the undersigned two witnesses there appeared before us ______________________________ who declared before us as follows: “Be my witnesses that I am submitting all of the debts owed to me to the Beth Din of America in New York, comprised of the following judges (dayanim): Rabbi Gedalia Dov Schwartz, Rabbi Mordechai Willig and Rabbi Yona Reiss, so that I may therefore collect these debts at any time that I desire.” IN WITNESS WHEREOF, we hereby affix our signatures this _____________ day of ______________, 5775, here in ____________________________.

Signed: __________________

Signed: __________________

The Spirit of Shemitat Kesafim

How does the pruzbul fit with the spirit of Shemitat Kesafim? How is the borrower given leeway to recover from his not working the land during the shemitah year?

I suggest that even if the lender drafts a pruzbul, he must not pressure a shemitah observant farmer to repay his loan soon after the shemitah. If a lender fails to honor the spirit of Shemitat Kesafim, the borrower can appeal to bet din. If the bet din finds in favor of the borrower, the bet din can revoke the lender’s mandate to collect the loan on behalf of bet din. The pruzbul permits the lender to pressure the borrower to pay only if the selected bet din does not object.

Accordingly, the pruzbul is hardly a radical transformation of Halacha. Rather, it simply shifts the burden of appealing to bet din for relief from the lender to the borrower. We think that during the time of Hillel, the lenders failed to extend credit not because of the inability to collect the loan. Rather, they did not want the hassle of appealing the bet din for relief. Hillel relieved the situation by transferring the hassle of appealing to bet din to the borrower. In this way, lenders are not punished for their kind extending of loans.

Conclusion: The Pruzbul = Win-Win

The Gemara (Gittin 36b) explains the term pruzbul as a combination of two words—pruz refers to the wealthy, and bul refers to the poor. Both the rich lenders and the poor borrowers emerge as winners from the pruzbul document. Pruzbul is a win-win enactment that facilitates lending while honoring the spirit of Shemitat Kesafim.

Postscript: An Alternative Manner to Explain the Pruzbul

We also suggest an alternative approach to the pruzbul based on the Torah Temimah’s explanation (Vayikra 25:36) for why a heter iska does not violate the spirit of Torah law. Hashem intends the interest prohibition to facilitate Jews helping each other in a time of need. By contrast, if someone borrows due to the economic advantages of doing so, the spirit of the ribbit prohibition does not apply. In such a case, the formal Halacha remains in effect, but we may sidestep it with a heter iska.

By contrast, lending with interest and using a heter iska in a case when the borrower is in desperate need of a loan, while in technical conformity with Halacha, is not in line with its spirit.

We say the same regarding Shemitat Kesafim and pruzbul. The Torah intends Shemitat Kesafim as a break for a loan granted to ensure the financial survival of poor individuals, but Chazal intend pruzbul’s use for a loan used to build a business.

Rabbi Haim Jachter is the spiritual leader of Congregation Shaarei Orah, the Sephardic Congregation of Teaneck. He also serves as a rebbe at Torah Academy of Bergen County and a dayan on the Beth Din of Elizabeth.