Beit Midrash

  • Family and Society
  • Shmitta
To dedicate this lesson

Shemittas Kesafim

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Rabbi Yirmiyohu Kaganoff

27 Av 5782
Question #1: Stores
Someone purchased an item from a store on Erev Rosh Hashanah, after the storeowner had made his pruzbul, but did not yet pay for the item. After Rosh Hashanah, may the storeowner send him a bill, or is this a violation of the Torah’s prohibition of shemittas kesafim?

Question #2: Suits
Yankel sues Shmerel in beis din to recover a debt. Shmerel is over his head in debt and decides to deny that he owes Yankel (which, by the way, violates a Torah prohibition). Yankel produces an IOU note and Shmerel confesses, telling beis din that he had forgotten about this loan. The beis din writes a decision that Shmerel owes the money. Does Yankel need a pruzbul to collect this loan?

Question #3: The Barber’s Cut
Reuven, a yeshiva bochur who cannot remember ever having had money to lend, did not make a pruzbul. On Rosh Hashanah, he remembers that, as the yeshiva barber, there are some guys to whom he gave haircuts who forgot to bring money and did not yet pay him. Has he lost his right to collect?

Foreword
This year is shemittah year, and, at the end of the year, the mitzvos of shemittas kesafim, releasing debts, apply. As the Torah teaches, in parshas Re’eih: "At the end of seven years you shall ‘make shemittah.’ And this is the ‘word’ of the shemittah’: Every creditor must release his hand from what his fellow owes him. He may not demand payment from his fellow, his brother, because he has declared a release for Hashem" (Devarim 15:1-2). These verses teach that, rather than Rosh Hashanah of the eighth year ending shemittah with a whimper, the shemittah year ends with a bang – making borrowed money uncollectable.

As we will see, this does not mean that the borrower has no moral obligation to pay. It means that the lender may not attempt to collect the loan, and that he has a mitzvah to notify a borrower who comes to pay that he, the lender, has released the right to demand imbursement.

After discussing a tangential matter, the Torah continues: "When, among your brethren living in your city, in your land that Hashem your G-d is giving you, there is a pauper – do not make your heart stubborn and close your hand from your impoverished brother. You shall open your hand for him, repeatedly [if necessary], and provide him whatever he lacks. Be careful, lest a wicked idea enters your heart, saying, ‘The seventh year, the shemittah year, is coming near’ and your eye disdains your brother, the pauper, and you fail to give him" (Devarim 15:7-9). The pasuk seems to close with a non sequitur. Why should the approaching shemittah deter someone from giving tzedakah? The answer is that this part of the pasuk is not referring to tzedakah – the Torah has now reverted its discussion to the laws of shemittas kesafim, introducing a lo sa’aseh that prohibits refusing to lend out of concern that, when shemittah arrives, you will be left unpaid, because your loan has been released by the Torah.

Allow me to explain this last law. If the borrower has a history of being careless about repaying money that he owes, the halacha is that, not only is there no requirement to lend him, it is prohibited. This is because borrowing money and not repaying it is a violation of the Torah; someone who lends to such a borrower causes him to violate this prohibition. The lender violates lifnei iveir, placing an obstacle in front of the blind, which includes causing someone to disobey a mitzvah. (He "stumbles" when he violates the mitzvah, and he is "blind" to recognizing the harm he is bringing upon himself.) Thus, when the Torah warns not to refrain from lending, it is referring to a borrower whom we assume is responsible, and yet the lender is afraid that he will not be repaid because of shemittas kesafim.

The Mishnah (Shevi’is 10:3) notes that Hillel had observed that Jews were violating this prohibition and refusing to lend money. In order to prevent violation of this lo sa’aseh (#231), Hillel created a means, called a pruzbul, whereby a loan can be collected, notwithstanding the mitzvah of shemittas kesafim. The topic of pruzbul and how it works will be left for a different article.

How many mitzvos?
Aside from the many various mitzvos that (1) prohibit interest-bearing loans, (2) establish the halachic rules prevailing to collateral, (3) oblige paying workers promptly and (4) require giving tzedakah, there are three different positive mitzvos and three different lo sa’aseh prohibitions governing the laws of providing and collecting loans. Listing these mitzvos in the order in which the Rambam lists them in Sefer Hamitzvos, they are:

Positive mitzvah #141:
To release loans at the end of shemittah year.

Positive mitzvah #142:
To collect loans that a non-Jew borrowed.

Positive mitzvah #197:
To lend money to the poor. This is not the same mitzvah as giving tzedakah, which is positive mitzvah #195, but a requirement, min haTorah, that, should someone ask for a loan for a legitimate reason, to provide it, if the potential lender has the money. If the potential lender is concerned that he will not receive payment back, he may request a mashkon, appropriate collateral for the loan. A mashkon is property of the borrower that the creditor holds as a pledge against the loan that the creditor may keep in the event of default. According to the Chafetz Chayim, this mitzvah to lend money applies, also, if a wealthy person requests a no-interest loan and I am in a position to provide it (Ahavas Chesed 1:1).

Negative mitzvos (lo sa’aseh)
Having mentioned the three mitzvos aseih that apply directly to lending and collecting loans, I will now cite the three lo sa’aseh mitzvos, the three prohibitions.

Negative mitzvah (lo sa’aseh) #230:
The first is the prohibition against suing someone after shemittah for a loan that is still unpaid.

Does this mitzvah always apply? The Gemara quotes a dispute whether this mitzvah applies min haTorah only at a time in history when the mitzvah of yoveil applies. Most rishonim and Shulchan Aruch consider this to be the accepted halacha (Gittin 36a).
The rishonim dispute as to whether shemittas kesafim applies in our era miderabbanan. Most authorities conclude that it does apply miderabbanan, yet the Rema mentions that "in our countries" the custom is to follow those who rule leniently, that shemittas kesafim does not apply in our day, even miderabbanan (Choshen Mishpat 67:1). The Rosh is very opposed to following this leniency, as the Rema notes, and therefore, one may not rely on this lenient ruling, unless this is the custom in his area (Sma 67:37). A greater discussion of this question will be presented later.

Negative mitzvah (lo sa’aseh) #231:
A prohibition against refusing to lend money because the lender is concerned that shemittah will come, and he will be unable to collect the loan.

Negative mitzvah (lo sa’aseh) #232:
A prohibition against pressuring a borrower to repay a loan, when the lender knows that the borrower has no means with which to pay.

The shemittah "word"
Above, when I quoted the pesukim, I translated the Torah as saying that "this is the ‘word’ of shemittah," a literal translation of the Hebrew words, zeh devar hashemittah. The Mishnah (Shevi’is 10:8) notes the unusual terminology, pointing out that, where a similar wording exists, it means that someone must make a declaration concerning the topic at hand. In the case of shemittas kesafim, this means that if the debtor comes to pay, the mitzvas aseih (#141) requires the creditor to tell him meshameit ana, I am releasing the debt and will not insist on payment. As we see from the Mishnah, the correct action for the debtor to take is to say af al pi kein, I still want to pay; I fully understand that you cannot force me to make compensation, but I choose to pay, anyway. (This is the opinion of most rishonim. However, see Sefer Yerei’im #164). This is the correct, moral thing for him to do (Shevi’is 10:8-9 and Gemara Gittin 37b). At this point, the lender may accept payment, although he is not permitted to tell the borrower that the money is owed. To what extent he may hint that he would like to be paid is a dispute among rishonim (see Rashi, Rosh, Rambam, Ra’avad, etc.)

Storekeeper
At this point, we can discuss the opening questions. Our first was: "Someone purchased an item from a store on Erev Rosh Hashanah, after the storeowner had made his pruzbul, but did not yet pay for the item. May the storeowner send him a bill, or is this a violation of the Torah’s prohibition of shemittas kesafim?"

To answer this question, we need to explain some laws about shemittas kesafim. The Mishnah provides the following cases: "Shevi’is releases a loan, whether it was in a written document or not. It does not release the balance of what was purchased in a store, unless it was made into a loan. [Similarly, Shevi’is] does not release wages owed to a worker, unless it was made into a loan."

When you hire a worker, payment is compensation for his time or work, not repaying a loan (see rishonim to Shevi’is 10:1, but note that Sma, 67:26, presents a different reason). Similarly, paying for an item purchased is the completion of the transaction. In these instances, the mitzvah of shemittas kesafim does not apply – the payment must be made, even if the end of the shemittah year occurred in the meantime.

The Mishnah teaches that the law of shemittas kesafim applies to transactions that have been converted into debts, but not to other unpaid non-loan transactions that were not. For example, when purchasing something, I am usually expected to pay for it immediately. At times, it is understood that the item will be purchased and not paid for immediately. In some of these cases shemittas kesafim applies and, in others, it does not.
There are situations in which the grocer adds the new purchases to a bill, and it is understood that the consumer pays the grocer later. In these situations, shemittas kesafim applies, once the grocer agrees to create a loan out of the transaction. Thus, the answer to the question, "Someone purchased an item from a store -- does sending a bill violate the Torah’s prohibition of shemittas kesafim", is that it usually does not.

In practice, it is sometimes unclear whether shemittas kesafim applies and a rav or dayan should be asked.

The barber’s cut
At this point, we can also answer the third of our opening questions: "Reuven is a yeshiva bochur and cannot remember ever having any money to lend out, so he did not make a pruzbul. On Rosh Hashanah, he remembers that, as the yeshiva barber, there are some guys whom he gave haircuts who forgot to bring money and did not yet pay him back. Has he forfeited his right to collect his money by failing to make a pruzbul?"
The answer is that, assuming that there was never any discussion about making the outstanding moneys into a loan, this is not considered a loan, but payment for services rendered, and is not subject to the laws of shemittas kesafim.

Mashkon
The law is that shemittas kesafim does not apply to a loan that was collateralized, whether by a movable item, such as jewelry or gold bars, that were given to the lender as security. Nor does it apply to a loan in which land was hypothecated against the loan.

Topics of interest
A heter iska is a contract used commonly to "lend" money without violating the laws of charging and paying interest, ribbis. Depending on the details of the heter iska contract, half the principle is usually subject to shemittas kesafim and half not. Why this is so requires devoting considerable time to how a heter iska operates, which is not the topic of this article.

Yoveil
Does shemittas kesafim apply when there is no yoveil year? In fact, there is an extensive discussion whether the mitzvah of shemittas kesafim applies when the mitzvos of yoveil, the fiftieth year, are not relevant. Many mitzvos apply during the yoveil year, including that lands inherited from the original division of Eretz Yisrael under Yehoshua, Elazar and the tribal leaders return to the descendants of the original owner. There is also a mitzvah, similar to shevi’is, to leave the land uncultivated and treat its produce as ownerless. None of these mitzvos applies today, not even miderabbanan. This is somewhat surprising; virtually all mitzvos that do not apply today min haTorah because of the dispersal of Klal Yisrael or the destruction of the Beis Hamikdash, such as shemittah, terumos and maasros, apply miderabbanan, so that these mitzvos should not be forgotten. (Some mitzvos, such as bikkurim and korbanos, do not apply today, because there is no way to fulfill them without the Beis Hamikdash.) Chazal did not apply the mitzvah of yoveil today, requiring the land to remain fallow and its produce treated ownerless, because of the difficulty in observing two consecutive years, the shemittah year on the 49 th year, and the following yoveil year, without agriculture. When these mitzvos apply min haTorah, Hashem promises that commitment to observe the mitzvah will bring a huge, bountiful crop the year before shemittah that will supply all the needs until the crop of the post-yoveil season is distributed (Vayikra 25:21). However, there is no such commitment when the mitzvah does not apply min haTorah; therefore, Chazal did not establish such a mitzvah (Sma, 67:2; cf. Chazon Ish, Zera’im 18:4, who disagrees).

The accepted halacha is that, min haTorah, the laws of shemittas kesafim are contingent on the law of yoveil (see most rishonim Gittin 36-37). Since yoveil does not apply, shemittas kesafim does not apply min haTorah. Most authorities rule that the laws of shemittas kesafim still apply miderabbanan, and that is the practice in most places, although there are rishonim who contend that shemittas kesafim does not apply at all until yoveil again applies (Ra’avad, Gittin 36). Many poskim report that, in many parts of Europe, there was a longstanding custom to follow those opinions who contend that when there is no requirement to observe yoveil, there is no requirement to observe shemittas kesafim, even miderabbanan (Terumas Hadeshen 1:304; Shu’t Maharik #92; Rema, Choshen Mishpat 67:1).

Beis din decisions
At this point, we should discuss another of our opening questions: Yankel sues Shmerel in beis din to recover a debt. Shmerel is over his head in debt and decides to deny that he owes Yankel (which, by the way, violates a Torah prohibition). Yankel produces an IOU note and Shmerel confesses, telling beis din that he had forgotten about this loan. The beis din writes a decision that Shmerel owes the money. Does Yankel need a pruzbul to collect this loan?

The Mishnah and Gemara explain that shemittas kesafim applies only to a debt owed to an individual, but not to a debt where beis din is involved in its collection. This includes kenasos of the Torah, penalties that the Torah declares (Mishnah Shevi’is 10:2) and decisions made by a beis din that were issued in writing (Yerushalmi, Shevi’is 10:2). Had Shmerel not denied the debt, it might have been released at the end of shemittah. When beis din writes a decision that he owes the money, shemittas kesafim will no longer apply. This demonstrates that crime does not pay!

An oath
Let me show you a similar case, but with a very different outcome: The borrower, who is far behind in meeting his debts, still plans to pay them all off, although he is not certain how he will do so. To comfort his creditor, he swore an oath of the Torah (a shavua) that he will certainly pay back the debt. The creditor, the malveh, did not make a pruzbul and the shemittah year has now passed. Is the debtor obligated to pay the loan, because he swore an oath that he would do so?

The Rashba was asked this very question, and answers that the purpose of this oath was to guarantee to the creditor the debtor’s intention to comply with his Torah requirements to pay back the debt, even if it would be very hard for him to do so. However, this is true only as long as he is required to pay back the debt. Since the shemittah year passed and shemittas kesafim took place, the debtor is under no obligation to pay back his loan, and the oath does not obligate him to do so (Shu’t Harashba 1:775).

For a more in-depth discussion of this question, see Shavuos 45a and 49a and the rishonim ad locum.

Conclusion
For someone living in Eretz Yisroel, observing shemittah properly involves Torah education, halachic responsibility and commitment. The consumer has to be constantly vigilant to purchase only shemittah-permitted produce. Those living in chutz la’aretz are hardly exposed to this powerful demonstration of the relationship that Klal Yisroel and the land of Yisroel have with the Ribbono Shel Olam. But properly studying and observing the mitzvah of shemittas kesafim allows those in chutz la’aretz to share this very special relationship.

This Shiur is published also at Rabbi Kaganof's site



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