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Thursday, October 06, 2022
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Shemitat Kesafim seems utterly irrational. The Torah seems to call for the cancellation of loans at the end of the shemitah year. How is this fair to the lender? Why extend a loan knowing the debt is automatically canceled at the end of the shemitah year?

Moreover, the Torah severely (Devarim 15:9) condemns one who does not extend a loan towards the end of shemitah as a “bliya’al” (godless). Why should he be labeled as godless if he is acting prudently?!

We shall set forth a sensible approach to Shemitat Kesafim based on the Sefer Yereim and Chizkuni.

 

Sefer Yereim and Chizkuni

Rabbi Eliezer of Metz — a student of Rabbeinu Tam — writes as follows in the old edition of his work on the mitzvot, “Sefer Ha-Yereim,” (number 278, translation is from Yeshivat Har Etzion’s virtual beit midrash):

“It appears to me that Shemitta does not mean the forgiving (of loans). Rather, the Holy One commands that one ‘let lie’ — i.e., to leave it alone, not to demand it, until he returns of his own accord as it is written, ‘let it lie’ and ‘he shall not demand it.’ For whenever the Torah uses the word: ‘ Shemitah’ it means to ‘leave alone,’ not to relinquish altogether. As it is written (regarding the land), ‘And the seventh year, it shall be left and lie fallow’ — meaning, you shall leave it alone. Thus a loan always has the condition that the debtor not keep him (the creditor) waiting forever for repayment from his storehouse. If he does so, then he is termed an ‘evil debtor,’ as in the verse, ‘The evil debtor does not pay back’ (Tehillim 37:21).”

According to the Sefer Yereim, we misunderstand Shemitat Kesafim. Loans are not canceled at the end of the shemitah year. Instead, the prohibition is to pressure the borrower to repay his loan. Devarim 15:2 sets forth the reason for this prohibition — “Ki kara shemitah eHashem,” since the borrower observed shemitah the past year.

Chizkuni explains that since the lender has not been working in his field during the shemitah year, he does not have money to repay the loan. For example, Kibbutz Shaalvim has been observing shemitah according to the stricter interpretation since its founding in 1951. Rav Yehuda Mertzbach, the current rav of the kibbutz, told me (in June 2022) that the cost of shemitah observance (in the best case scenario) is approximately one million shekalim per year.

However, after the farmer financially recovers from shemitta observance, he is expected to repay his loan. He can be labeled a rasha if he does not repay his loan. A lender who sees the borrower taking advantage of Shemitat Kesafim can appeal to beit din. If upon investigation, the beit din finds that the borrower is taking advantage of Shemitat Kesafim, it can publicly label the borrower as a rasha (“evildoer,”) (see Shulchan Aruch Even HaEzer 154:21) based on Tehillim 37:21.

According to this approach, Shemitat Kesafim is hardly irrational and does not demotivate extending loans since beit din supports the timely payment of loans. Moreover, we understand why the Torah condemns those who refuse to extend a loan at the end of shemitah. Since lenders can expect payment of their loans, they are expected to grant loans to needy people even as shemitah approaches. The Torah severely condemns those who financially penalize farmers who observe the Torah and generate limited income during the shemitah year.

The Torah does not set a specific time for the borrower to repay his loan since each farmer’s financial circumstances differ. However, once the farmer is “back on his feet” post-shemitah, he is expected to repay his loans fully.

 

Evidence for the Yereim and Chizkuni

There are at least four points of evidence for the approach of the Yereim and Chizkuni. First, the Torah does not state that loans are canceled at the end of the shemitah year. Rather, Devarim 15:2 presents the prohibition as “lo yigos,” the lender may not pressure the borrower to pay.

Second, the Torah (Devarim 15:3) states that Shemitat Kesafim does not apply to nochrim. The Chizkuni explains that the nochri is not entitled to the flexibility of Shemitat Kesafim since he does not refrain from working the land during the shemitah year.

Third, the Yereim and Chizkuni fit perfectly with the Mishna (10:9), which states that one who pays his loans even after the end of the shemitah year “רוח חכמים נוחה הימנו,” the rabbis are pleased with his actions.

Finally, the Gemara (both in Gittin 36 and Mo’ed Katan 2b-3a) connects Shemitat Kesafim with Shemitat Karka (refraining from farming Eretz Yisrael): only when Shemitat Karka applies, does Shemitat Kesafim apply. According to the Yereim and Chizkuni, this linkage makes perfect sense.

 

The Rishonim Who Disagree

How do we explain the many Rishonim (such as the Or Zarua, Avoda Zara 108) who disagree with the Yereim and argue that loans are canceled at the end of shemitah? I suggest that these Rishonim refer specifically to a situation where one lends to a poor individual. Devarim 15:9 (in the context of Shemitat Kesafim) explicitly mentions extending a loan to a needy individual.

I once lent about a thousand dollars to a poor individual. I knew he was incapable of repaying the loan, but I presented the money as a loan to spare him the indignity of receiving a handout. At the end of the shemitah year, I did not complete a pruzbul (a document allowing post-shemitah loan collection), and the Torah canceled the loan. The recipient of the “loan” retained his money without losing face, knowing that the Torah canceled the loan. I believe that the Rishonim, who disagree with the Yereim, are addressing such a scenario.

 

Conclusion

In our next issue, we shall address the pruzbul. Unfortunately, many misunderstand this document as a subvention of an irrational law. However, we have shown that Shemitat Kesafim is thoroughly sensible, and next week we shall endeavor to show that the pruzbul also makes complete sense.


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.

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