Sources And Reasons

In the Torah, we find the command to observe a Sabbatical Year, the shemita (Devarim 15:1-11). There are two aspects of this mitzvah: the land is not to be worked and all debts are cancelled. The latter feature is not as well known as the imperative to let the fields lie fallow. Moreover, unlike the agricultural aspect of shemita, the directive cancelling all debts between Jews applies not only in Eretz Yisrael, but all over the world..¹ Wherever a Jew owes another Jew money, and the debt is due, that debt is cancelled by the shemita year (except under specific conditions which will be explicated later).² Thus, this aspect of shemita directly affects many more people than do the agricultural laws; additionally, in modern society where so many undertakings are financed by loans which extend for a number of years, the biblical fiat cancelling all debts has far-reaching consequences.

The Torah was not oblivious to the difficulties attendant upon not being able to collect monies owed, and therefore specifically warns about trying to avoid getting “stuck” with an unpaid loan by the simple expedient of not lending money close to shemita time, for fear that it will not get paid back in time:

 

Be very careful lest there be in your heart an evil thing, saying,”The seventh year is approaching, the Sabbatical Year,” [lest] your eye be bad towards your brother [who is] poor, and you will not lend to him — and this will be a sin for you. (Devarim 15:9)

The Sefer HaChinuch, 477, explains the underlying motivation of the Torah in positing this mitzvah:

 

And we should establish in our hearts great trust and confidence in the Lord, Blessed be He. Furthermore, from this [trust] there will arise a strong fence and a barrier of iron, to make [us] be distanced from theft and from avarice for that which belongs to one’s fellow man, because in our hearts we will understand, by a logical reasoning [kal vechomer], that if even in a case where a person has loaned his own money, the Torah tells him he must leave it in the hands of the borrower when the shemita year comes, how much more so must one not steal or covet that which belongs to someone else.

In Gittin 37, the Talmud rules that loans of all types are annulled by shemita, even those written with a contract or secured by property.³

The Pruzbul Is Instituted

Despite the important moral and religious lessons to be learned from the mitzvah of shemitat kesafim (cancellation of debts), and despite the fact that observance of this practice is a specific Torah directive, covered by both a positive command — to cancel — and a negative one-not to forego lending in order to avoid losing the loan-the reality is that when economic circumstances became difficult, not all people were able to live up to these high ideals. The rich simply refused to lend money to the poor as the Sabbatical Year approached. Consequently, some two thousand years ago, Hillel the Elder came to the conclusion that drastic action had to be taken. Thus, he instituted the pruzbul.

Rabbis do not have the authority to cancel a Torah imperative nor to override that which the Torah forbids. However, Hillel realized that, in effect, observance of the law mandating cancellation of all debts — part of whose rationale is to prevent the poor from being saddled with a crushing burden of debts — resulted in the poor being deprived of the ability to borrow, so that they were actually worse off than they might have been without the protection of shemitat kesafim. Furthermore, by not lending, the rich were committing a severe transgression, ignoring the Torah’s command to help out the poor. Under the circumstance, Hillel devised a system — the pruzbul which would permit a debt to be collected even after the Sabbatical Year, yet without violating the Torah’s command. In this way, he would actually be helping all Jews — the rich would not shirk their responsibility to help the poor, and the poor would benefit by being able to borrow money to tide them over a rough spot.

The pruzbul is a legal device which, in effect, transfers a private debt to the beth din, the Jewish court. Shemitat kesafim cancels only debts between people, not monies owed to court. Therefore, the court is able to collect the debt whenever it desires, even after the Sabbatical Year. Moreover, Jewish courts have the power to transfer assets as they see fit (hefker beth din hefker), and they are able to transfer the court’s lien — the loan — to the original lender and make him the “agent of the court” in collecting it; then the court can transfer these monies to him. In this way, through use of halachic technicalities which are perfectly legal, Hillel in effect devised a system for avoiding the consequences of shemitat kesafim.⁴

Despite the technicalities, the Gemara wonders how Hillel could undertake to nullify a practice mandated by the Torah. ⁵ Two answers are offered: First of all, shemitat kesafim applies (biblically) only when the laws of shemita apply to land and agricultural produce. Since nowadays the biblical law of shemita is not in effect, neither is the law for cancelling debts, which nowadays is only a rabbinic institution. Since it is only a rabbinic law, the rabbis are empowered to cancel their own law by implementing the device of the pruzbul. The second answer given is that even if shemitat kesafim is still viable as a Torah law, nevertheless, Jewish courts have the power to confiscate property. It was this power which Hillel employed to have the courts take possession of private debts and collect them as they wished.

In any event, the “bottom line” is that if there is cancellation of debts today, it is due to rabbinic fiat, and the rabbinic device of pruzbul enables the lender to collect his debts even after shemita.

Practical Implementation

Poskim discuss whether the pruzbul must be written and executed in front of beth din or whether an individual can simply fill out a pruzbul and sign it in the presence of two witnesses. The question arises due to an ambiguity in the Yerushalmi (the Palestinian Talmud), commenting on the Mishnah which teaches about the pruzbul: “and even if they are in Rome.” Does this mean that the lender doesn’t have to be physically in the presence of the judges — they could be in Rome, while he is here⁶ — or does the phrase indicate that even if the debts are in Rome, the lender must execute the pruzbul before the judges?⁷

The Shulchan Aruch Harav ⁸ writes that the lender should write a pruzbul and then have two witnesses sign to the effect that he transferred his debts to a beth din. If the judges of the beth din are the ones who sign, so much the better. Rav Ovadia Yosef, in Yechave Da’at,⁹ rules that it is sufficient to sign it in the presence of witnesses, without a beth din. Ramo is even more lenient, declaring that if the lender merely declares orally that such is his intention, he does not have to execute a pruzbul in writing.¹⁰

By somewhat circuitous logic, the Aruch Hashulchan concludes that there is no need for a pruzbul at all: Since nowadays, the beth din no longer has the power to collect debts, the pruzbul is actually meaningless. Therefore, rather than have the lender violate either the biblical prohibition of pressuring the borrower to pay back (before shemita) or the biblical command to be sure to lend to the poor, we rule that the rabbinic law cancelling debts is void. Thus, there is no need for a pruzbul.¹¹

A further question raised by the Gemara in Gittin 36a is whether the takkana (regulation) was instituted by Hillel for all times or only for the generation in which he lived, which was wracked by great political and financial woes. Determining Hillel’s intent is crucial. If he ruled only for his own generation but thereafter people continued the practice of their own volition, then any later beth din may alter or suspend his takkana as it sees fit. However, if his regulation was instituted as a permanent one, it would reqilire a beth din which is “greater in number and in wisdom” than the one which ordained the rule in the first place, to cancel it. It goes without saying that no beth din in later generations is greater than the one over which Hillel the Elder presided. Consequently, the pruzbul must be considered a permanent regulation, even if the reason for instituting the regulation in the first place no longer applies. ¹²

The Gemara concludes that Hillel instituted the pruzbul for all future generations, but that it is valid only if executed by a Jewish court of experts, all of whom are well versed in the laws of shemita and who have been appointed as judges by the people of their city.¹³ The Meiri¹⁴ opines that since we no longer have judges of this caliber, we should not rely on a pruzbul. Ramo, however, rules that any beth din is qualified to write a pruzbul, because it is a rabbinic law.¹⁵

The Rif and the Tur have also adopted this position. ¹⁶ But the Shach¹⁷ challenges the Ramo, citing the Mabit, who wrote:

 

And in the last Sabbatical Year, we [the court] annulled a number of pruzbuls which were not made by an “illustrious” [chashuv] beth din of the city and others [pruzbuls] were written in their stead, by an “illustrious” beth din.

When Are Debts Cancelled?

The Torah says, “At the end (miketz) of seven years, you shall make shemita,” Devari 15:1. In his commentary, Ramban notes that there is some question as to which end of the shemita year cancels debts — the onset of the year or its conclusion, since the word miketz tolerates either interpretation. Indeed, there is a striking lack of consistency among halachic decisors as to the proper time for executing a pruzbul.¹⁸

According to the Rambam, a person may collect monies owed him throughout the seventh year, and it is only at the conclusion of that year that the cancellation goes into effect. According to the Rosh,¹⁹ however, even during the seventh year, it is forbidden to ask for repayment, although the debt is not actually cancelled until the end of the year. In other words, if the borrower offers to repay, it is permitted to accept.

The Shulchan Aruch Harav writes that it is proper (lechatchila) to execute the pruzbul at the end of the sixth year… “but if he didn’t do it at the end of the sixth year, he should do it in the seventh.”²⁰ Rav Ovadia Yosef brings the Chatam Sofer who reports that his teacher, Rav Natan Adler, “made a pruzbul at the end of the seventh year… but I do not know for sure that he did not write a pruzbul at the end of the sixth year… ²¹

According to the strict reading of the law, in order for a pruzbul to be effective, the borrower must own real estate, for the property is considered as “set aside” for the collection of the debt. Thus, in a sense, the debt has already been collected prior to the seventh year. If the borrower does not own land, the lender can give him a present of land — even a flower pot with a hole in the bottom, set on ground, is sufficient, for the dirt in the pot is considered as receiving its nourishment from the ground. The “gift” of land can be effected even without the knowledge or approval of the borrower, based on the assumption that he implicitly agrees to all conditions which make it possible for him to borrow money. However, if the borrower specifically refuses the acquisition of “land”, it cannot be transferred to him against his express will.²² Halachic decisors note various leniencies on this point, such as permitting a spouse’s land to serve as security for the debts of the other spouse. This leniency is possible since the law of shemitat kesafim today is only rabbinic in nature.²³

Exemptions

There are various types of debts which do not require a pruzbul and can be collected after shemita, regardless. In this category are included debts which arise as a penalty or fine — such as the money a man must pay his victim for rape or seduction, or a woman’s ketubah (marriage contract). Also, a loan secured with a pawn or some other security can always be collected, as can money owed for goods taken on credit.²⁴ An exemption is granted for money owed to an orphan, for “the beth din is [considered to be] the father of orphans.”²⁵ Rashba writes that someone who has pledged to a charity fund must pay even with the passage of the seventh year,” for the beth din is in a sense responsible for the charity fund… and it is as if the pledges had been handed over to beth din.“²⁶ An exemption is likewise granted to a “loan for ten years”, i.e., a long-term loan which has a specific collection time, after shemita. The thinking is that since the lender cannot request payment during shemita, he cannot transgress the commandment “do not dun” (lo yigoss, Devarim 15:2), and shemitat kesafim applies only to those loans where payment can be demanded during shemita. Finally, if a person hands his loans over to a Jewish court and says to them, “You collect the debt for me,” the debt is not affected by shemita.²⁷

The Mishnah in Shevi’it 10:5 indicates that if one borrowed money from five persons, he must write a pruzbul for each person. However, Rav Ovadia Yosef explains that this is true only if each of the five is using his own money. But if money is borrowed from a group of people, lending money as a consortium or as a bank, it is enough for one of them to execute the pruzbul on behalf of the group. ²⁸

Producing The Pruzbul

Human psychology, as understood by the Gemara, led the rabbis to accept the principle that a person does not sin when there is no reason or for no benefit: In the words of the Gemara, if kosher food is readily available, no Jew would ignore the kosher food and deliberately eat non-kosher food. By the same token, our Sages believed that since it is a simple matter for a person to write a pruzbul, why would anyone not take advantage of this simple device and save himself a lot of trouble? Thus, they said, if someone maintains that he did write a pruzbul but has misplaced it, we believe the claim and do not require him to bring proof that he did execute the document.²⁹ Moreover, if a person produces an IOU to show that he is owed money, we inform him that if he wrote a pruzbul he is allowed to collect the debt (and we do not fear that thereby we are inducing him to lie about having done it).

That was the trusting attitude which prevailed some fifteen hundred years ago. But already some six hundred years ago, we see that the rabbis were not so sure they could rely on common knowledge about the pruzbul. The Tur³⁰ citing the Rosh, remarks that the understanding of common behavior expressed in the Gemara might have been true to life then, but already in his time, he doubted that knowledge of the pruzbul was all that widespread, nor did he believe that most people were aware of how to execute one. Therefore, the Rosh wrote,

 

When someone comes to me and claims that “I had a pruzbul but it got lost,” I ask him, “What is a pruzbul, and why did you write it, and for whom did you write it?” until he is caught in his lie. Never did anybody in Germany merit [to get away I with this claim before me.

 

Despite the citation of the Tur, the Shulchan Aruch ³¹ rules that a person who claims that he did write a pruzbul is believed. The only exception is in a case where a trial was held and no pruzbul was mentioned, and only thereafter did the person advance the claim that he had had a pruzbul.

A pruzbul which is pre-dated is valid,³² since the document is valid anyway only for loans made prior to its execution. However, a post-dated pruzbul is not valid, since it may cover debts not yet incurred at the time the document was written.

A pruzbul is a fairly straightforward legal document, which nevertheless requires a modicum of expertise to be executed properly. Since the need arises only once in seven years, many people are either unaware of the requierement or intimidated by their lack of familiarity with the provision. Hopefully, the present study will help to allay these negative sentiments, so that the mitzvah of shemita maybe observed more properly.

Notes:

Rabbi Alfred S. Cohen – Rabbi, Cong. Ohaiv Yisroel, Monsey, New York; Rebbi, Yeshiva University High School for Boys

1. “Nohaig bechol makom uvechol zeman.” This means that when it is in force, the directive applies in all places and for all times. However, the imperative to cancel debts (shemitat kesafim) is in effect only when the Jubilee (yovel — the fiftieth year) is also observed. Since the Jubilee is no longer applicable today, there is no biblical imperative to observe shemita. (Tosafot to Gittin 36b indicate that the rabbis did not institute that yovel should be observed, on a rabbinic level, because of the hardship involved in not farming the land for two consecutive years.)However, according to most rabbinic authorities, there is still a mitzvah derabbanan — to keep the shemita with all its requirements because the rabbis have decreed that we should continue the biblical practice, although there are some who consider that there is not even a rabbinic requirement to cancel debts. See Ramo, Choshen Mishpat 67:1 and Aruch HaShulchan, ibid, note 1.Even though only a minority of authorities consider that shemitat kesafim is no longer in practice, that minority opinion has been relied upon by many, who therefore took no steps to assure that debts were not automatically cancelled (by writing a pruzbui). The Rosh (14th century) writes in strong protest of what apparently was the practice in his society, that people did continue collecting their loans, but he does not seem to have been successful in stopping the practice. However, the Ramo and the author of Shulchan Aruch HaRav do state that although one may rely on the lenient opinions, a truly pious person should write a pruzbul to cover his loans.The prevailing and accepted position today among rabbinic authorities is that shemitat kesafim, cancellation of debts, does apply today on a rabbinic level. Therefore, if one does not want his loans to be cancelled, he must write a pruzbul.
2. The majority of poskim consider that the debts are cancelled automatically — hafka’ata demalka akarkafta degavra. This means that if a person does collect his debt, he is a thief (Minchat Chinuch 477:4). But the Yereim 164 maintains that the borrower has to take the lender to beth din, which forces the lender to declare that the loan is forgiven. But the Minchat Chinuch 84 disagrees, pointing out that if the Yereim is right, the mitzvah would not apply to women, who are exempt from all positive mitzvot which are time bound.
3. In the commentary of Torah Temimah to Devarim 15:11, there is discussion of the possibility that if a person did collect his debts after shemita despite the biblical prohibition, the Jewish court might force him to return it to the borrower.
4. The Mishnah in Shevi’it explains how this is done, with a simple formula. A much longer version of the pruzbul can be found in Melechet Shlomo, chapter 10, mishnah 4, Shevi’it. A facsimile of the pruzbul used by the Chazon Ish is printed in his biography, Pe’er Hador, Vol.11, p. 245. Other versions of the pruzbul are recorded in Iggerot Moshe, Choshen Mishpat 19, and Minchat Yitzchak 6:160. The standard text is printed in the Luach of Ezras Torah.
5. Gittin 36a. Rashi, Tosafot, and the Meiri discuss whether yovel was in effect in the days of Hillel.
6. Mordechai, Gittin 379.
7. Ramban, Gittin 36b; Rashba, 2, 313.
8. Choshen Mishpat 67:21.
9. 4:63.
10. Choshen Mishpat 67:20. This is a leniency which may be relied upon if it is very late on Erev Rosh Hashanah, and there is no time to write out a pruzbul.
11. Ibid. 67:10. Minchat Yitzchak 10: 140.
12. Meiri, Gittin 36a.
13. Shulchan Aruch, Choshen Mishpat 67:18.
14. Gittin 36b.
15. Shulchan Aruch, ibid.
16. Shevet Halevi 4:193 discusses whether the pruzbul is proof that one’s IOU’s were given to beth din for collection or whether the document simply allows the lender to collect his debts.
17. Ibid., note 5. See Minchat Yitzchak 10:140 about writing a pruzbul at night, and whether the judges may be related to one another.
18. If a person did make a pruzbul at the beginning of the Sabbatical Year, he would have to make another one at the end, to cover loans transacted in the course of the year; Chelkat Yaakov 3:143. This opinion creates a difficutty when we consider the opinion of the Shulchan Aruch HaRav, who said to make the pruzbul at the end of the sixth year, and if not, to make one at the end of the seventh. But even if a pruzbul were written at the end of the sixth year, there would still be a need to write another one at the end of the year, to cover the loans made during the year. See Yechave Daat 4:62 for the case of a person who makes a pruzbul during the year and thereafter makes a loan.
19. Gittin 4:20. However, note the Radvaz 1:5, who distinguishes between a loan made during the seventh year and one made before the year.
20. No. 36. The difficulty with this ruling is that a pruzbul written at the end of the sixth or the beginning of the seventh year does not cover loans made during the whole of the seventh year.In his Shearim Metzuyanim Behalacha, part 3, 128:25, Rav Braun cites the Chazon Ish who reasoned that since the Gemara wrote that a pruzbul can even be written on chot hamoed, of necessity it must have meant during the sixth year.
21. Yechave Daat 4:62.
22. Choshen Mishpat 67:22. Aruch Hashulchan considers that a further reason that pruzbul was not done was due to the lack of land ownership by either the lender or borrower.
23. In view of the fact that there is virtually no one who does not own or borrow or rent land, the Pitchei Teshuva, note 4 on No. 67, questions when it is that a pruzbul cannot be written?!
24. See Mishnat Aharon II 75; also Tosafot to Ketubot 55, s.v. Shevi’it; also 272 and Shevi’it 1.
25. Rashi rules that this regards a debt inherited from their parents, but Ran rules that it applies even to debts that they have incurred themselves.
26. Chidushei HaRashba, Bava Kama 36b. However, Rav Yosef, Yechave Daat, IV, 63, instructs the administrator of a charitable fund to write a pruzbul for all outstanding pledges.
27. The question arises, then, why there was a need to institute the pruzbul, since there are so many other ways to avoid one’s loans being nullified? See the Mishnah Rishonah to Shevi’it 10:3; also, the Ritva to Makkot 3b, and Shevet HaLevi IV, 193.
28. Yechave Daat 64. Rav Yosef also discusses whether one of the group can be an agent for the others.
29. Gittin 36b. Tosafot write that no oath is required either.
30. Choshen Mishpat 67.
31. Ibid , 33. See the Mishnah Ketubot 9:9 and Rambam, Hilchot Shemita VeYovel 9:24.
32. Shevi’it, chapter 10, mishnah 5. Tosafot Yom Tov explains why the document is not rendered invalid by virtue of the false statement about its date.