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Beit Midrash Family and Society Shmitta

Shmittat Kesafim

Debt Cancellation in the Shmitta Year: A Question of Terminology; The Mechanism of Prozbul; How Is It Possible?; A Proposal; Compelling the Debtor to Pay
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A QUESTION OF TERMINOLOGY
"At the end of (‘miketz’) every seventh year, you shall observe the Shmitta year. This is the concept of the Shmitta: Every creditor shall waive any debt owed him by his neighbor and brother…" (Devarim 15:10).


From the verses themselves, it is unclear exactly when , in the course of the Shmitta year debts are in fact cancelled. The noted Torah commentator, Avraham Ibn Ezrah, maintains that debts are annulled at the onset of Shmitta. As a support, he cites a verse in Devarim 31:10: "[‘Miketz’] the seven year cycle, at a set time during the festival of Sukkot, you must read from this Torah before the entirety of the Jewish people..."

Sukkot falls during the month of Tishrei - the first month of the Jewish year - and the massive public reading of the Torah must, says the Torah, be conducted at that time. Ibn Ezrah links the term "miketz" in this verse, to the term "miketz" in Devarim 15 - the verse dealing with the cancellation of debts in the Shmitta year. He reasons: Just as the term "miketz" in reference to the public reading of the Torah refers to a reading that occurs during the Sukkot holiday i.e. the beginning of the Jewish year so, too, does "miketz" in the Shmitta context relate to the cancellation of debts at the start of the year.

Ramban - Nachmanides - offers an additional proof this view by way of Jeremiah 34:14:
"[Miketz] seven years, a person must free his Hebrew servant, a man who was sold to him and who had worked for him for six years..." Clearly, here the term "miketz" means the start of the seventh year, since the verse stresses that the slave may only work for a maximum of six years. According to Ibn Ezrah, the term, "miketz" has its root in the Hebrew word "katzeh" or "extremity." Every year is comprised of two "extremities" in time its beginning and its end. As it refers to the release of servants, the public reading of the Torah, and the cancellation of debts "miketz" means the start of the year.

Ramban himself, however, introduces a statement in the Sifri that understands the term in question as referring to the end of the Shmitta year. The Sifri’s proof lies the same verse quoted by Ibn Ezrah on the public reading of the Torah. Sifri notes that the reading takes place at the end of the Shmitta year, and the start of the eighth year. Although Sukkot itself is at the start of the eighth year, the term "miketz" in that verse refers to the transition between the concluding Shmitta year and the new year. Maimonedes the Rambam, agrees with this interpretation: "When the sun sets on the eve of Rosh Hashanah, at the end of the Shmitta year," he writes, "all debts are cancelled...."

A third view, that of Rabbeinu Asher (the "Rosh") strikes a middle ground between the two previous views. "A creditor should not approach his debtor for repayment of the loan... since it is a Shmitta for God," says the Torah. The phrase "since it is a Shmitta for God," says the Rosh, is not only a reference to the cancellation of debts in Shmitta, but is also a term used by the Torah regarding the mandatory "Sabbath of the land" in the seventh year. Rosh reasons: Just as the duty to let the land lie fallow already takes effect at the onset of the Shmitta year, so too, does the prohibition for a creditor to approach his debtor for the payment of an outstanding loan. However, if the borrower in the course of the Shmitta year returns the borrowed money, it is permissible for the lender to accept the money, since the debt is not unilaterally cancelled "by Heaven" until the end of Shmitta. Only at the year’s end must the creditor declare that he, too, waives his right to collect the loan money.

THE MECHANISM OF PROZBUL
The Talmud (Tractate Gittin 36a) states that the great sage, Hillel, established a mechanism called Prozbul. "This is the essence of Prozbul," says the mishna, "I hereby convey to you judges....that any debt owed me by.....can be retrieved by me at any time that I wish."

A major difference of opinion has raged in the commentaries as to whether Prozbul involves the actual transfer of the creditor’s loan documents to the Beit Din or whether it involves just a declaration by the creditor before Beit Din.

The Mishna (Tractate Shvi’it 10,2) states: "Someone who loans money in exchange for collateral, or someone who transfers his loan documents to Beit Din his debts are not annulled by the Shmitta." In the very next mishna, we are told that Prozbul allows for the non-annulment of debts. The division of these two matters into two separate statements of law, in two distinct mishnayot - suggests that the transference of debts to the Beit Din and Prozbul are, indeed, two distinct topics.

This question of whether mishna #3 is an extension of mishna #2, or a separate issue, however, is the subject of a disagreement, a tension rooted in the two versions of the text of mishna #4 of Shvi’it: "This is the essence of Prozbul "I hereby convey to you judges....that any debt owed me by.....can be retrieved by me at any time that I wish." The text implies that that the creditor issues a declaration to the court that he does not considered the debt cancelled, and that he insists on collecting it, despite the Torah obligation to the contrary. This concept is quite difficult to understand: How can someone simply make a claim, declare before a court that he will not allow his debt to be cancelled by the Shmitta year? Can one make a similar announcement to the Beit Din that he refuses to don Tefillin in the morning? Would such a declaration in fact exempt him from the mitzvah?

The alternate edition of the text reads in the following way: "I hereby convey to you judges...Any debt owed to me..." This latter text does not understand the process as one of a declaration by the creditor, but rather the conveying or transference of loan documents to the Beit Din. A transfer of loan documents permits the subsequent collection of the loan in question, since the Torah only nullifies a private loan, and forbids a private lender from demanding the repayment of the loan. The Shmitta, though, does not nullify a loan owed to a public body such as the Beit Din; similarly, a representative of Beit Din can legitimately approach the debtor to pay off the loan.

HOW IS IT POSSIBLE?
The Talmud (Gittin 36a) raises the following question: How is it possible that, from the Torah, a debt has indeed been cancelled by Shmitta, but that, via Prozbul, Hillel establishes that the debt remains intact that the money is still owed? How can even the most prominent rabbi delegate the payment of a debt that does not exist?

Abaye, quoting Rabbi Yehuda Hanasi, answers: According to the Torah, the forgiving of debts in Shmitta is linked to the obligation to give the Land of Israel a rest during Shmitta to allow the land to lie fallow. And this law is in turn linked to the institution of the Jubilee year, which comes once every 50 years. In reference to the Jubilee, the Torah states: "You should declare freedom for all its (the Land’s) inhabitants." From the Torah’s wording here, the rabbis derived that the Jubilee year is only in force when all of the Jewish people live in the Land of Israel, which is not the case at the present time. Thus, since the Jubilee is not currently operative, the Torah does not mandate that the land lie fallow; following the linkage we cited earlier, according to the Torah, loans are not cancelled in the Shmitta year, either. Nevertheless, the sages instituted a "rabbinic Shmitta year" as a reminder of the original, Torah-ordained Shmitta; this, in turn, helps explain how Hillel could institute Prozbul: all he did was allow for the collection of debts, achieved by effectively suspending one element of rabbinic Shmitta. In other words, Hillel’s Prozbul-governed debts remain intact, just as if "rabbinic Shmitta" had not been introduced in the first place.

The Gemara then asks a follow-up question: If, in Torah law, the Shmitta year does presently cancel debts, by what authority did the rabbis institute "rabbinic Shmitta," and thereby cancel debts that are , according to Torah law, still owed by borrowers to lenders? (Rashi sharpens the question by noting that "rabbinic Shmitta," by facilitating the non-payment of a loan, transforms an otherwise well-intentioned debtor into a thief. The debtor is permitted by the rabbis to hold onto money that is not really his!)

Abaye’s response to this question:
"Being instructed to remain idle and to refrain from performing a positive obligation is different." Just as the rabbis ruled that the Shofar should not be sounded on a Rosh Hashanah that falls out on Shabbat, just as the rabbis ruled that the lulav should not be waved on even the first day of Sukkot that falls out on Shabbat - so, too, they established that, in rabbinic Shmitta, the debtor need not fulfill his mitzvah of returning his loan.

Rava provides an alternate solution when he cites the principle of "Hefker Beit Din Hefker." Simply put, this principle anchored in several verses in the Torah - states that the sages have ultimate control of property rights in Jewish law, and can therefore, if necessary, reassign property rights from one person to another. For Rava, the rabbis exercised their power of "Hefker Beit Din Hefker" and awarded the money owed by the borrower to the lender to the borrower!

Rashi notes, by applying Hefker Beit Din Hefker, Rava simultaneously responds to both of the questions raised in this chapter: As mentioned earlier, the Gemara’s first question was how Hillel established the mechanism of Prozbul (in the case of a Torah-ordained Shmitta the Gemara’s initial presumption) if the debt was supposed to have been cancelled in the Shmitta year? Answer: Hefker Beit Din Hefker; the sages have the authority to reassign the money of the borrower to the lender. Secondly, how did the rabbis by establishing "rabbinic Shmitta"- allow the borrower not to repay his loan, and to seemingly steal from the lender? Answer: Hefker Beit Din Hefker; the sages have the authority to halachically transfer funds from the lender to the borrower.

A PROPOSAL
I would like to suggest that Abaye and Rava in the above section are expressing views consistent with their respective positions elsewhere in the Talmud. In Kiddushin (13a) and Gittin (50), both the Tosfot and Ramban maintain that Abaye and Rava disagree as to whether the concept of a lien on property is Jewish Law is of Torah or rabbinic origin; whether or not, from the Torah, when a person borrows money, both he and his property can be drawn upon for the repayment of the loan.

The practical ramifications of this question are great: If liens are Torah-ordained, then the borrower’s property has a lien upon it for the repayment of the loan. If liens are not valid according to Torah law, then the borrower himself must repay the loan from his pocket. (It is against this backdrop that Rashi says in the Talmud (Ketubot 86a) that the repayment of a loan is a positive Torah commandment)

Should the borrower die and leave minor orphans and if liens are valid according to Torah law, then the debt in question can be collected from the property inherited by the orphans, since the lien hovers over the property and not the persona of the borrower or his descendants; if liens are not Torah-ordained, however, then the loan devolves upon the children; since they are minors, however, they are not obligated at present to pay off the loan.

Tosfot and Ramban argue that Abaye rules thad liens are not valid according to Torah law, while Rava hold that they are. For Abaye, only the borrower and not his possessions may be drawn upon to pay off outstanding debts; the borrower is obliged to do so based on the mitzvah of debtors to repay loans. It follows therefore, that, for Abaye, the sages certainly have the authority to institute "rabbinic Shmitta" and to annul a debt owed according to Torah law; all the rabbis did was to instruct individual Jews - who had a Torah obligation to repay their loans - not to perform this mitzvah of loan repayment. This is parallel to the sages’ authority to prohibit the blowing of Shofar or waving the lulav on Shabbat.

For Rava - who states that liens are anchored in Torah law - it’s not enough for the sages to state that the borrower is relieved of the obligation to pay his debt. The obligation to pay still hovers over the property owned by the borrower at the time of the original loan. It is for this reason that Rava had to resort to the principle of Hefker Beit Din Hefker to explain the authority of rabbinic Shmitta.

COMPELLING THE DEBTOR TO PAY
The Talmud (Gittin 37b) cites the mishna in the tenth chapter of Shvi’it, which says: "When a borrower returns a debt to his neighbor in Shmitta (the intention, says Rashi, that he returns the debt at the conclusion of the Shmitta year, during a period when Shmitta is in effect from the Torah ) the lender must say, ‘I waive the debt.’ And if the borrower insists, and says, ‘still, I wish to pay you back,’ the creditor is permitted to take the money, as it says in the Torah: ‘This is the matter (dvar) of the Shmitta....’" (The Hebrew term "dvar" can either mean "matter" or "word." The above law is derived from understanding the term as meaning "word." Simply put, the Torah only requires the creditor to issue a verbal declaration that he waives the loan. Once he has done so, once he has said his obligatory "word," he can take the money should the borrower insist on repaying the loan.)

The above piece of Gemara continues: "Raba says, and we hang him up until he says so." Rashi explains: If the lender sees that after making his initial offer, the borrower wishes to retract his offer, and is now unwilling to repay the loan, the creditor can hang the borrower up on a tree until the latter says, "Still, I wish to pay you."

The Rosh disagrees with Rashi’s rendering of the text, noting that if we were to permit the creditor to use force to receive his loan money, we would have effectively negated the authority of the annulment of debts in the Shmitta year since, with a sufficiently terrifying physical threat by the lender, all loans could ultimately be forcibly repaid! Instead, explains the Rosh, the Talmud was using a figure of speech; the lender is allowed to sit, to anxiously await the repayment of the loan (he may anticipate, can "hang on to" the next move of the borrower) until the borrower insists on paying the money. At that point, the lender is permitted to take the cash.

Rashi’s explanation, that the lender can hang the borrower up in a tree to compel repayment of the loan - is rather perplexing: Elsewhere, the Talmud explicitly states that if somebody physically forces his fellow Jew to give him a gift, even if the threatened man complies with the wishes of the aggressor, the gift is not a valid gift according to Jewish law!

What, then, was Rashi thinking?
As we mentioned earlier, there are, at most, two different factors that obligate a person to repay a loan: either his personal mitzvah to do so, or a lien on his property. Rashi believes that Shmitta wipes out the lien on personal property, but leaves intact a Jew’s personal mitzvah to repay the debt. When a borrower responds to physical force and performs the mandated mitzvah of returning the loan to his creditor, he, the borrower,is not considered to be compelled to have given a gift, but to have been compelled to perform a sale. And the law in this case is different:a sale prompted by the would-be purchaser’s exercise of physical force is valid according to Talmudic law. This principle is elucidated by Tosfot in the Talmud (Bava Batra 48a) where he points out that benefit derived from the fulfillment of a mitzvah can be considered to be "payment" for that mitzvah action. This way of looking at the issue helps shed light on Rashi’s view that the lender can exert physical force on the lender to fulfill the mitzvah of repaying his loan in the Shmitta year, since the borrower is being compensated, via the merit of the mitzvah, for his repayment the loan.
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