The infrequent mitzva of shmitas kesafim will be applicable at the end of this year, the Shmitta year of 5782. Is the mitzva basically a loaner’s amnesty? What is the Pruzbul, and how does it work? Is there anything practical we have to do for it? Does the Pruzbul have to be made out in writing, or can one simply state it in front of witnesses? Various forms are available for the Pruzbul. What’s the difference between them? Does a woman have to submit her Pruzbul in person, or can she send an emissary? And what can be done if one forgot to fill out a Pruzbul mere seconds before Rosh Hashana begins? Of this, and more, in the coming article.
Sources for the Mitzva
The Torah commands us: “At the end of seven years you will make a release, And this is the manner of the release; to release the hand of every creditor from what he lent his friend; he shall not collect from his friend or his brother, because time of the release of the Lord has arrived” (Devarim 15:2). At the end of the Shmitta year, all Jewish debts are cancelled.
In merit of fulfilling the mitzva and releasing debts, the Torah promises its blessing: “For the Lord, your G-d, has blessed you, as He spoke to you, and you will lend to many nations, but you will not borrow; and you will rule over many nations, but they will not rule over you” (Devarim 15:6).
This year, the Jewish calendar year of 5782 is the Shmitta year, at the end of which all Jewish owed debts from a fellow Jew will be cancelled, unless certain conditions are in place, the main of which is the Pruzbul.
What is a Pruzbul
The Torah, in addition to promising blessing and plenty in merit of fulfilling the mitzva, expresses understanding of the problem involved: “Beware, lest there be in your heart an unfaithful thought, saying, ‘The seventh year, the year of release has approached,’ and you will begrudge your needy brother and not give him, and he will cry out to the Lord against you, and it will be a sin to you. You shall surely give him, and your heart shall not be grieved when you give to him; for because of this thing the Lord, your G-d, will bless you in all your work and in all your endeavors” (Devarim 15:9-10). The Torah understands that one may refrain from lending money to the poor due to the possibility he will be unable to repay before the end of the Shmitta year. Therefore, G-d promises His blessing, worth much more than irredeemable loans.
The Mishna (Shviis 10:3) describes how the problematic situation predicted in the above-quoted psukim came true, prompting Hillel the Elder to institute a new halachic mechanism: The Pruzbul. It is important to note that according to most halachic authorities, the mitzva of Shmittas Kesafim is today a rabbinically mandated mitzva, as it depends upon the observance of the Yovel (the fiftieth year of Jubilee, observed after seven Shmitta cycles). Since it is a rabbinic mitzva, whoever makes out a Pruzbul as Chazal instituted can collect his debts in a mechanism that will be explained below.
Hillel the Elder noted that only private debts are canceled by Shemitah: “He shall not exact from his friend or his brother.” If, however, one owes the local court (or the public) money, Shemitah does not affect the loan. Based on this rule, he instituted the Pruzbul: a mechanism by which debts are transferred to a Beis Din (religious court). By making a Pruzbul, one makes his private debts public—and consequently, redeemable. At the end of this article we will mention the various methods for making a Pruzbul as well as the actual forms, and every reader can find one that meets his needs. In next week’s article we will answer additional practical questions on this matter, as well as preferable halachic solutions for them.
The Jewish Court
The Rishonim are undecided on the necessary judicial format. The Rambam (Shmitta 9:17), Ba’al Haitur (80), Sefer Hatruma (45:16), and others maintain that in order to redeem public debts the Beis Din must either be one that is accepted by all of the city’s residents, or the most prominent court of the times. However, the Ramban (Gitin 36b), Rosh (Gitin 4:13), and others are of the opinion that any three Torah-observant Jews can serve as a Beis Din for writing a Pruzbul.
Practically, the Shulchan Aruch and Rama are divided on this issue (CM 67:18). According to the Shulchan Aruch (and accepted by Sfaradi communities) a proper Beis Din is necessary – one including three members proficient in the halachos of Pruzbul and Shmeitta, and which many residents of the city see as Dayanim. However the Rama, accepted by Ashkenazim, rules that any three Torah-observant Jews can serve on a Beis Din for the Pruzbul. The Kitzur Shulchan Aruch (180:15) requires the members of the Beis Din to not only be Torah observant but also Torah scholars. Some Ashkenazis are scrupulous to follow the Shulchan Aruch’s opinion and write their Pruzbul in a prominent Beis Din, especially if one is easily accessible.
Nowadays, many cities don’t have only one acceptable Beis Din. As Rav Moshe Feinstein puts it (Igros Moshe CM II, chapter 3), New York does not have permanent Jewish judges who are acceptable by all Jews. Instead, every community has its own judges, and there is no Jewish court which can be seen as the most prominent one. Sfaradim have, nevertheless, the custom to submit their debts to a renowned Beis Din that holds regular sessions at regular hours, and in which the Judges are public figures who are proficient in halacha.
Relatives
Can two bothers sit together as dayanim for a Pruzbul? This question was presented in one community where the rabbi died and left two sons who were both teaching Torah. The community decided that both would jointly fill their father’s position while continuing their teaching. Before Rosh Hashana, the gabbai felt it was important to place both on the local Beis Din for Pruzbuls to prevent ill will between the two. Can both brothers sit together for the proceedings?
A similar question appears elsewhere: can a son write a Pruzbul while his father is serving as one of the dayanim, or if the borrower is one of the dayan’s children?
The Maharikash (Lechem 67:18) writes that according to the Shulchan Aruch, the Dayanim may not be relatives. The Netia’h Shel Simcha (89) writes that even the Rama prohibits relatives from sitting together on a Pruzbul Beis Din. Hilchos Shviis (4:89) explains this is because they aren’t called a Beis Din, but Rav Wosner (Shvivei Esh 22:3) and Rav Shlomo Zalman Auerbach were lenient in this matter. In fact, Rav Shlomo Zalman Auerbach served together with his son as dayanim for his grandson’s Pruzbul. A copy of this Pruzbul appears in Dinei Shviis, published by Degel Yerushalayim.
However, the Maharikash (ibid) writes that while a prominent Beis Din is necessary (following to the Shulchan Aruch) the dayanim may be relatives of the lender or borrower because the lender transfers his debts to the Beis Din, and giving debts to relatives is permitted. The Teshuva M’ahava agrees, but for another reason — in his opinion, it is because a Pruzbul is not a legal action but rather one performed in commemoration of the Shmitas Kesafim.
In conclusion: preferably, two brothers shouldn’t sit together for the Pruzbul unless the community constitutes only of Ashkenazim and it is sha’s hadchak (extenuating circumstances). In the cases in question it was suggested the kehila convene two separate Beis Dins in order to speed up the process. However, most poskim agree there is no problem for the dayanim to be relatives of the lender or borrower.
Oral Pruzbul
After defining who can sit in the Beis Din, we will outline the basic rules for writing a Pruzbul. According to the Shulchan Aruch (CM 67:20) the pruzbul must be made in writing. Only if the lender and the borrower are both talmidei chachomim can a Pruzbul be made orally. However, the Rama argues it can also be done orally. Preferably, a Pruzbul should be made out in writing. Similarly, the Chochmas Adam notes (Sha’arei Zadek Mitzvot Ha’aretz 21:6) that he clearly recalls his Vilna community putting down the Pruzbul in writing, but in the Shmitta year of 5564 a few members were lazy and did so orally. For the following Shmitta year they repented, and went back to doing so in writing.
Making a Pruzbul
There are five formats for a Pruzbul:
1) The Simple Form
The simplest has the lender appear before three Torah observant people and tell them: “I hereby transfer to you [the Beis Din] all debts which I have, so that I may collect them any time I wish.” The Dayanim then affirm in writing that the lender made the statement before them, and give the lender a form to attest to it. This form is called The Pruzbul. This method is appropriate for Ashkenazim. The following form is attached here for your convenience:
I, the undersigned Beis Din affirm that __________________ appeared before us and said: “I give over to you the Beis Din all debts that are owed me, in writing or verbally, so that I may collect them at any time I desire.” Since he said the above, we wrote this contract on ____ of the month _____ in the year of 5782, here __________ (location).
In witness whereof we hereby affix our signatures this [date] here in [place].
Signed:________________ [witness]
Signed:________________ [witness]
2) The Absentee Pruzbul:
The Rishonim are disputed if the Pruzbul can be filled in absence of three Dayanim, whether because they are not available, or if one wants to submit his loans only to a prominent Beis Din (in accordance with the Shulchan Aruch) but cannot appear before them in person. According to the Rama (CM 67:20) and Chochmas Adam (Sha’arei Tzedek Mitzvat Ha’aretz 21:6) it is possible although not preferable, but the Tumim (67:21) and Pe’at Hashulchan (29:75) deem it impossible.
The Gra (CM 67:39-40) understands that the Shulchan Aruch permits transferring debt to a remote Beis Din via two witnesses (actually done by the Chikrei Lev. See Yabia Omer III, CM 6) Rav Ovadya Yosef and Rabbi Ben Tzion Aba Shaul (Ohr Letzion, Hilchos Shmitas Kesafim) permit followers of the Eidot Hamizrach halachic approach to transfer their loans in presence of witnesses to a prominent Beis Din.
When transferring debts to a prominent Beis Din remotely, one must ensure the witnesses are not relatives or relatives of either the lender or the borrower (Hisorerus Hateshuva III chapter 23:2).
The following is an example of a Pruzbul to submit debts to a prominent Beis Din not in their presence:
In the presence of the undersigned two witnesses appeared before us ________________ [name of creditor] who declared before us as follows:
“Be my witnesses that I am submitting all of the debts owed to me to the prominent Beis Din _______ in the city of ________, which include rabbi ________, rabbi _____________, and rabbi __________ so that I may collect these debts at any time that I desire.”
As ___________ made a Pruzbul as Chazal instituted, we signed the following contract.
In witness whereof we hereby affix our signatures this [___________date] here in [___________place].
Signed: _________________ [witness]
Signed: _________________ [witness]
3) The Combined Contract
For those who wish to meet all possible requirements: on the one hand submit debts to a prominent Beis Din albeit via messenger, and on the other hand appear before the Dayanim in person, Rav Elyashiv compiled the following text to be said before three Torah Jews:
If it is halachically possible to transfer loans to Beis Din in their absence, I transfer all my loans to the following prominent Beis Din _______ and you are my witnesses to this end. If it is impossible to transfer loans in their absence, I transfer all my loans to the Beis Din before me.
This formula was used by Rav Elyashiv and Rabbi Moshe Sternbach.
Those who use this formula must ensure the three Dayanim/witnesses are not relatives of each other or of the lender or borrower, and the three sign the form and give it to him. Following is the text for the subsequent Pruzbul:
In the presence of the undersigned two witnesses there appeared before us [name of creditor] who declared before us as follows:
“Be my witnesses that I am submitting all of the debts owed to me to the prominent Beis Din _______ in the city of ________, which include rabbi ________, rabbi _____________, and rabbi __________ so that I may therefore collect these debts at any time that I desire.”
If this transferral is not effective, but rather requires me to appear in person, I submit my debts to you, as Dayanim, so I may collect my debts at any time I desire.As ___________ made a Pruzbul as Chazal instituted, we signed the following contract.
In witness whereof we hereby affix our signatures this [___________date] here in [___________place].
Signed: _________________ [witness]
Signed: _________________ [witness]
- Sending via Messenger
Can a Pruzbul be made out via messenger? Can an agent be appointed to appear before beis din for someone else? The elderly, infirm, ladies who are uncomfortable to appear before three men to make out their Pruzbul, or those who wish to be stringent and transfer their debts only to the most prominent Beis Din but are situated elsewhere, may wish to appoint others to arrange their Pruzbul. Customarily, it is permitted when necessary. The Mishne Kesef (20:5) notes that Rabbi Pinchas Epstien, the head of the Eida Charedis made out Pruzbuls in 1966 for people who sent agents to do so for them in his Beis Din. Rav Elyashiv ruled that where the lender appoints the agent in writing, one can rely on the opinions that permit making out a Pruzbul via a messenger. The following is the text of the Pruzbul made out via messenger:
We, the undersigned Beis Din affirm that __________(name) appeared before us and said that he was appointed as the agent of ___________ (name) who sent him to make a Pruzbul.
And _________ (name) told us: __________ submits all his debts to us so that he may therefore collect them at any time he desires.
The above was stated before us on [___________date] here in [___________place].
On that date, we the undersigned affixed our signatures.
Signed: _________________
Signed: _________________
Signed: ________________
- Mailing In:
Another option which we will only mention briefly is sending the Pruzbul in to Beis Din by registered mail (to ensure it arrives before Rosh Hashana), fax, or email. In this case, it is essential for the Beis Din to know the sender and recognize his signature, or to have two witnesses who recognize his signature affirm it is his.
Postponing Debts
Another mechanism that allows for debts to be collected despite Shmitas Kesafim is postponing the due date to any day after Rosh Hashana. Since the mitzva of Shemitas Kesafim only applies to redeemable debts, making the debts unredeemable until after Rosh Hashana allows for it to be collected at a later date. This is important for: 1) one who forgot to make a Pruzbul until right before Rosh Hashana, 2) followers of the Shulchan Aruch concerned that there is no prominent Beis Din in their city or could not appear before it, and 3) any debt that occurred after writing the Pruzbul.
In this article we have provided readers with general guidelines for making a Pruzbul, as well as samples for the different texts. Next week we will Be’ezrat Hashem expound further on this topic and discuss interesting questions that result from it, as well as define the debts that require a Pruzbul and those that do not, etc.
