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Shmittas Kesafim – Foregoing Loans

 

 

By Rabbi Akiva Kulbersh

 

 

A Torah Commandment or Rabbinical

The Rabbanan and Rebbi dispute the status of Shmittah in our days. The Gemora (Gittin 36a) quotes the following: “Rebbi says, ‘This is the matter of the remission [shmittah], every creditor shall remit [shamōt].’ The posuk mentions shmittah twice. One [shmittah] is [the cessation of working the] land, and one refers to foregoing loans. In an era that you observe Shmittah of the land, [in that era] you must forego loans. In an era that you do not observe Shmittah of the land, you need not forego loans”. Rebbi explains that the mitzvah of forgiving owed monies is dependent on the mitzvah of shmittas karkaos, cessation of agricultural labor. In an era when we are not bound by the land Shmittah we are not bound by the Torah (The Rabbonon did institute this commandment.) to remit loans. The Rabbanan’s position(Moed Katan 2b) is that Shmittah even today is obligatory m’dOraisa. Their dispute is rooted in the mitzvah of Yovel.

Yovel

In addition to the Shmittah year, the Torah commands the observance of the Yovel year. The posuk declares that in the 50th year, after the completion of seven cycles of shmitta, “And you will sanctify the fiftieth year, and you will proclaim freedom throughout the land for all of its inhabitants” (Vayikra 25, 10). The Gemora in Erchin (32b) relates that when the tribes of Rueven, Gad and half of the tribe of Menashe were exiled (They were the first tribes to be exiled.), the mitzvah of the Yovel year ceased. What do these tribes have to do with the Yovel? The above posuk states, “…for all of its inhabitants”, the Yovel only applies for all of its inhabitants, i.e. in a period when all of the Jews are in Eretz Yisroel. Thus when part of Klal Yisroel was exiled the observance of Yovel came to an end.

The Talmud Yerushalmi teaches that the Torah mitzvah of Shmittah is dependent on the mitzvah of Yovel. As the Yovel is no longer observed, so too the observance of Shmitta. Thus Rebbi’s position that Shmittah is of a rabbinic nature now is due to termination of the Yovel obligation (Gittin ibid, Rambam Shmittah 9:2, Beis Yosef Y.D. 331).

The majority of Rishonim (Rashi Gittin 36b, Tosfos Erchin 32b, Rambam ibid 10:8-9, Shu”t Rashba 3:32, Maharam m’Rotenburg – Prague 141) and the Beis Yosef (Y.D. 331) accept Rebbi’s position as final. Thus Shmittah in our days is only rabbinic.

How does this affect the mitzvah of foregoing loans? According to the above mentioned Gemora, that the mitzvah of foregoing loans is dependent of the mitzvah of shmittas karkaos, we can conclude that foregoing loans in our days is at most rabbinic. This is the position of the vast majority of Rishonim. However the Raavad (Tamim Deyim 132) held that in our days there is no obligation, even rabbinic, of foregoing loans.

Chutz L’aretz

M’doraisa the mitzvah of foregoing loans is binding both in Eretz Yisroel and in Chutz L’aretz (Kiddushin 38b). The Rishonim discuss the status of this mitzvah in chutz l’aretz in our days when Shmittah as a whole is d’rabbanan. The Gemora (Gittin 37a) relates the methods by which various Amoraim arranged their pruzbols (to be explained). Rav Ashi would write his pruzbol on a palm’s trunk. His students relied on a verbal declaration. What is significant is that all of these rabbis lived in Bavel (Shu”t haRosh 77, Shu”t HaRashba 3:32, Yareim 134). Clearly the mitzvah of foregoing loans is independent of Eretz Yisroel, and such is the opinion of most Rishonim (see Rif Gittin ibid, Rambam Shmittah 9:2, Ramban Gittin ibid, Rashba ibid, Rosh ibid, Yareim ibid) and the Shulchan Aruch (C.M. 67). The Raavad, who posited that there is no mitzvah today, suggests that Rav Ashi was acting out of piety.

In addition to the Raavad’s position that foregoing loans is no longer obligatory anywhere, a minority position of Rishonim insisted that, though they concur that the mitzvah foregoing loans is rabbinically binding in Eretz Yisroel, in chutz l’aretz there was no such decree (HaRi Albartziloni and HaRav Zerachia cited in Sefer HaTerumos shaar 45:4).

Although the minority position gained a foothold in many communities, it was not without objection. The Rosh protested a local custom to claim old debts as being in clear violation of halachah, but his objection fell on deaf ears. Though unimpressed by the locals’ claim that their carefully worded contracts circumvented any requirement to remit loans, for lack of a better option the Rosh conceded. While he did not uphold claims on debts from a former Shmittah cycle, he would also not interfere with the local norm (Tur C.M. 67). The Terumas Hadeshen (304), in an attempt to justify widespread practice, posited that the obligation to forego loans, due to its relationship to shmittas karkaos, may have been limited to Eretz Yisroel’s surrounding lands. As such, there was no compulsion to remit loans in Europe or other distant lands.

The Ksav Sofer (C.M. 9) suggests that custom was grounded in the difference between the lender and the borrower. The dispute over the status of foregoing loans in our days renders this obligation a safek. The classic rule of safek derabbanan l’kula has distinctive implications in our case. With regard to the lender, as his obligation to forgo the debt is a machlokes bd’rebbanan, he may be lenient and demand payment. On the other hand, the debtor is faced not with a machlokes d’rabbanan but rather with a safek d’oraisa. According to the opinion that shmittas kesafim applies in our days he is certainly absolved from repaying his debts. However according to the opinion that the mitzvah of foregoing loans doesn’t apply, if he doesn’t settle his loans he is in violation of the Torah commandment not to steal. As such, the creditor may be lenient and demand payment whereas the debtor must pay his debt to avoid a safek d’oraisa of stealing.

The Rema mentions the lenient practice to disregard this mitzvah, and suggests that they relied on the Raavad that foregoing loans is non-binding in our era. It is apparent from many Rishonim and Achronim that the lenient custom relied not only on the blanket heter of the Raavad but also on well-worded contracts (see Maharil 197:4, Maharalbach 143, Lavush ibid). The Shach (ibid 2) cites the Bach (ibid 5) that is praiseworthy to be stringent, as well as many poskim who recommend not to rely on the lenient custom but rather to arrange a pruzbol (Ksav Sofer ibid, Aruch Hashulchan ibid 10). The Chochmas Odom (Shaarei Tzedek 21) rules that this mitzvah is rabbinically binding and does not mention the lenient opinion. The accepted practice is to be stringent and write a pruzbol.

 

Avoiding Lending out of Fear of Shmittah

Torah explicitly forbids withholding loans out of concern that he will lose the money due to the mitzvah of foregoing loans in shmittah, as the posuk states in parshas Re’eh: “Beware lest there be a lawless thought in your heart, saying, ‘The seventh year approaches, the remission year,’ and you will look malevolently upon your destitute brother and refuse to give him – then he may appeal against you to Hashem, and it will be a sin upon you. You shall surely give him, and let your heart not feel bad when you give him, for in return for this matter, Hashem your God, will bless you in all your deeds in your every undertaking” (Devorim 15, 9-10). Interestingly, Hillel who instituted the pruzbol, which we will explain later, lived in a time when shmittas kesafim was only d’rebbanan. Even so the Mishna (Shvi’is 10:3) relates the impetus for Hillel’s innovation was, “He saw the nation avoiding loaning to one another, and violating the above posuk.” The clear implication of the Mishna is that one who refrains from loaning out money, even in a time when foregoing loans is d’rabanan, nonetheless violates this Torah commandment (Sefer Hachinuch mitzvah 480, Shaarei Tzedek 21:13, Pe’as Hashulchan 10, Shu”t Minchas Shlomo 1:47). The Chasam Sofer (Gittin 36a) suggests that when the observance of Shmittah was d’oraisa the Torah promised tremendous blessing. As such we were commanded to lend without concern. in our days we have no such assurance, and therefore the Torah violation doesn’t apply.

 

Pruzbol

In the times of Beis Sheni, many wealthy Jews, fearful of the ramifications of the impending Shmittah year, refrained from providing loans to those who were in need. Not only were the needy harmed, but also the wealthy violated the abovementioned issur. Hillel, concerned by this unfortunate predicament, instituted the pruzbol. The pruzbol enabled a moneylender to, in a sense, transfer his outstanding claims to a beis din, effectively absolving him from the obligation to remit his entitlements. As a result, the poor received much-needed loans and the affluent were saved from a serious transgression. The Gemora asks: How could Hillel circumvent this seemingly straightforward mitzvah? Considering that Shmittah in Hillel’s time was already d’rabbanan, he was empowered to legislate a method for solving the above issues as explained in the Gemora (Gittin 36a).

 

When does Shmittas Kesafim Take Effect

The Torah states, “At the end of seven years you shall remit…” (Devorim 15). The Gemora (Erchin 28b) understands the words “at the end” as defining the end of the Shmittah year as the time at which one may no longer collect his debts. Practically, this means that either a pruzbol must be written or debts claimed prior to sunset on Erev Rosh Hashana, right before the beginning of the  eighth year. There is a minority opinion of the Ibn Ezra (ibid) that the posuk refers to the end of the sixth year and not the seventh.

Interestingly, many poskim addressed the impact of time zones on the issue. Let’s say the lender is in the United States and the borrower is in Eretz Yisroel. Can the lender make a pruzbol in the afternoon of Erev Rosh Hashana local time for him? Or perhaps there is more significance to the location of the borrower, for whom Rosh Hashana has already commenced? If the deciding factor is the location of the borrower, then we might conclude that his loan was forgiven at sunset of Rosh Hashana in Eretz Yisroel and render the pruzbol ineffective. Hagaon Rav Chaim Kanievsky shlit”a writes that ideally in such a case the lender should arrange his pruzbol before sunset in Eretz Yisroel (Derech Emuna 9:127). Hagaon Rav Shmuel Wosner ztz”l (Shu”t Shevet Halevi 9:391) posits that the time of sunset in Eretz Yisroel should be the deciding factor, as there is an integral association between foregoing loans and shmittas karkaos, which is exclusive to Eretz Yisroel, though admittedly he did not find support for his position. HaRav Shlomo Zalman Auerbach ztz”l was uncertain as to the halachah and did not offer a conclusive ruling (Minchas Shlomo 1:47). There is a dissenting opinion (Shu”t Mishna Halachos 4:14) of many poskim that the primary location is that of the lender and therefore the pruzbol may be written until sunset in chutz l’aretz.

 

Loaned Items

So far we have discussed the mitzvah of foregoing loans, that is remitting monies. How does this mitzvah affect other loans? Does one have to relinquish ownership on his car that he lent to his neighbor? What about tomatoes he borrowed? Must he give them back? The Torah’s reference to monetary loans is instructive. When one lends money, the nature of the loan is that the borrower spends the cash and returns to the lender different cash. On the other hand, when one lends a screwdriver to his friend, he expects to receive the same screwdriver back. The Meleches Shlomo (Shvi’is 10:2) compares loaned perishables and materials, such as milk or glue, to money. Just as the lender receives back different money, so too one who lends his neighbor a tomato doesn’t receive that same tomato back. Rather the borrower uses the tomato and replaces it with another. Therefore, if one has an outstanding debt of a tomato to his next door neighbor, the laws of foregoing loans are applied. However, with regard to one’s car, which is totally dissimilar to a money loan, as the borrower must give back the same car, the laws of foregoing loans do not apply (Ritva Makkos 3b, Derech Emunah 9:2).

 

Repaying Remitted Loans

After the Shmittah year, when all loans are forgiven, is it permissible to still pay them back or is this a violation of Hashem’s will? The Mishna (Shvi’is 10:9) says that although there is certainly no obligation, the spirit of the law behooves a debtor to repay his loans. Hagaon Rav Moshe Feinstein ztz”l writes that, while it is not compulsory, to disregard the Mishna’s encouragement to repay is iniquitous. Therefore, the utmost effort should be invested in paying back one’s debts (Igros Moshe C.M. 2:15).

Significantly, there is a stipulated procedure for paybacks. One may not proclaim, “Here is the money I owe you”, as the Torah absolved the borrower’s requirement to repay, and in truth he owes nothing. Rather the process is as follows: The lender must say that the debt has been canceled and he relinquishes his claim. The borrower must respond, “Even so, I want you to accept the payment”. He should not mention his obligation to repay but rather his desire to give the lender a gift. If the borrower doesn’t express this intention, the lender should continue the conversation and even try to direct it so the borrower says, “The money is mine and I am giving you a gift.” Should the borrower refrain from clearly expressing his intention to give a gift, the lender should not accept the repayment (Gittin 37b, Rambam Shmittah 9:28, Shulchan Aruch C.M. 67:36).

In Summary

  • The general mitzvah of Shmittah in our times is rabbinic.
  • The majority opinion is that the mitzvah of foregoing loans is also rabbinically binding.
  • Hillel instituted the pruzbol, by which Shmittah-remitted debts can be claimed.
  • Though there were communities outside of Eretz Yisroel who relied on minority opinions and marginalized this mitzvah entirely, today the custom is to arrange a pruzbol.
  • The debts are canceled as of sundown at the beginning of Rosh Hashana of the eighth year. If the lender and the borrower are in different time zones, the pruzbol should be arranged before sunset in the earlier time zone.
  • This mitzvah affects all money, food, etc. that the borrower is not expected to return but rather replace with an equivalent. Borrowed items, such as tools, where the borrower returns the item that he borrowed, are excluded from the mitzvah of shmittas kesafim.
  • It is proper to pay back even remitted loans. The borrower should explicitly return the money as a gift and not a repayment.

B’ezras Hashem we will merit Moshiach and to observe Shmittah once again as a mitzva d’oraisa.

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