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­Nitsavim-Writing a Pruzbul for one who can’t come to Beis Din

 

 

Question

I am a widow and need to make a pruzbul since there are both private individuals and banks that owe me money. My late husband used to do it for us in shul on Erev Rosh Hashana but I can’t do that. What can I do since I do not want to forgive my loans?

Answer

There are several methods that are available to you, one of which our website makes available to the public. In order to fully understand this method we must give some background.

The Torah writes that at the very end of the Shmitta year, all debts that a Jew has to his fellow Jew that are already due are automatically nullified. However, the Mishna (Gittin 34B) writes that Hillel enacted a method that people can use to prevent their debts from being nullified and he called his method, pruzbul which the Gemara says means that it is an enactment to assist both the wealthy and the impoverished.

The Gemara (Gittin 36A) questions the ability of Hillel to enact a method that effectively permits one to violate a law of the Torah since the Rabbis do not have power to permit something that the Torah forbids. The Gemara answers that the reason Hillel had this power is because at Hillel’s time, the period of the second Beis Hamikdosh, Shmitta observance was only a Rabbinic ordinance, and from the standpoint of the Torah debts are not nullified because Shmitta does not exist. This is still the situation today. Thus, Hillel was capable of enacting a method to prevent debts from being absolved since the same Rabbis who enacted that debts should be absolved by their enacting Shmitta even nowadays, enacted that if one wishes he may set up a method to prevent debts from being absolved.

The Mishna (Shvi’is 10, 4) describes that one makes a pruzbul by appearing before two or three people and declaring that he will collect his debts whenever he desires. These people then record this and sign on a document and this document is called the pruzbul.

The Gemoro (Gittin 37A) further recounts that the students at the yeshiva of Rav Ashi made a pruzbul orally, i.e. they would just announce their intentions in front of their fellow students and the fellow students did not record or sign anything, and that was sufficient to prevent their debts from being absolved. There is a dispute among the Rishonim whether anyone can avail himself of this short-cut or only learned people like the students of Rav Ashi. The Ramo (67, 20) rules that anyone can suffice with an oral announcement. The Beis Yosef rules that only people who are learned to the extent that they are aware that Shmitta today is only rabbinic can use this method.

There is a cryptic remark in the Yerushalmi that says a pruzbul can be made even if “they are situated in Rome.” There is a dispute among the Rishonim who or what the pronoun “they” refers to. Some Rishonim understand that it refers to the loan documents and the Yerushalmi is teaching that one has the ability to make a pruzbul even if his loan documents are in a different location. However, other Rishonim understand that “they” refers to the three people before whom one announces that he intends to collect his debts whenever he pleases and the Yerushalmi is teaching us that one can make his announcement even not in the presence of these three people.

The Ramo states that the second interpretation is reliable and many, including the Gra (67, 39), understand that the Beis Yosef concurs. The usual way that this Yerushalmi is applied is that one specifies in front of two witnesses the names of the three people who, acting as a beis din, should effect a pruzbul on his behalf.

The Chasam Sofer (res 5, 113) was sent a letter by a former student requesting that the Chasam Sofer’s beis din write a pruzbul on his behalf. The Chasam Sofer notes that this is a departure from usual procedure and considers whether this is a valid approach. He writes that the actions of Rav Ashi’s students seem to indicate that this is an invalid method since the students wrote nothing down and this indicates that the key feature in a pruzbul is the announcement in the presence of the beis din or in front of witnesses appointing the beis din to write a pruzbul on one’s behalf, which the Chasam Sofer’s student did not do.

However, the Chasam Sofer concludes that there are various valid methods to create a pruzbul. Normally one uses both speech and writing. From the students of Rav Ashi we learn that one can use speech alone as described above. Still another method is what his student requested and the Chasam Sofer complied with his student’s request.

It is critical to understand the mechanics of this last approach in order to be able to decide issues related to its application. The Chasam Sofer states explicitly that in this approach the pruzbul is just the document that the beis din writes on behalf of the lender. The letter that is sent to the beis din is just a request that beis din should prepare a pruzbul on his behalf but it is not a part of the actual pruzbul.

One important issue is the date that is written on the pruzbul. The Mishna (Shvi’is 10, 5) rules that if the date written on the pruzbul is later than the actual date when the pruzbul was written, the pruzbul is null and void. The reason is because a pruzbul is only effective to prevent loans existing at the time it is executed from being absolved but it has no effect on loans extended after it was written. Therefore if the date written on the pruzbul is later than the actual date of the pruzbul, the lender will have the ability to misuse the pruzbul for loans that he extended between the actual date when the pruzbul writing really took place and the date that was written on the pruzbul document. Legal documents that can be misused are invalid.

Therefore, it is critical to know which date to affix to the pruzbul document that beis din writes on behalf of one who writes them a letter: is it the date the letter was sent or the date that beis din wrote the pruzbul on his behalf?

It seems that the Chasam Sofer already decided this question since he wrote to his student that the pruzbul that he made on his behalf was only valid for loans that the student extended up to the date that the student wrote his letter. However, the Chasam Sofer did not offer any explanation for his ruling. Furthermore, it would seem that since the Chasam Sofer explained that the student’s letter was merely a request for the beis din to make a pruzbul on his behalf, the date that the letter was written should be irrelevant.

One possible reason is that one cannot effect a legal action on something that does not yet exist (dovor shelo bo le’olom). For example, a person cannot sell wheat in the future if that wheat does not yet exist. That is also the reason for the ruling that beis din cannot make a pruzbul on loans that are extended after the pruzbul is written since these loans did not exist at the time when the pruzbul was executed.

However, this does not explain why the pruzbul cannot be effective on a loan that did not exist at the time the pruzbul was requested since the Chasam Sofer writes that it is only a request to write a pruzbul but it is not a part of the actual pruzbul. We find that one can make requests about things that don’t yet exist. For example, the Gemoro (BM 96A) writes that in principle one who is about to depart on an extended trip can appoint an agent to nullify all vows that his wife will pronounce in his absence. Even though these vows to not yet exist, the husband’s appointment is valid since all he is doing is indicating his desire to void his wife’s future vows and one can indicate his desire concerning future situations. Therefore, here too the lender can indicate his desire to have a pruzbul written that will be effective even on loans that were extended after the time of his request.

There are numerous other proofs that one can express his desire concerning future situations. We will only mention one other reason (that is somewhat different) why in this situation the fact that the loan was not yet extended does not pose a problem. This reason is important because it applies to many other practical situations.

The Gemoro (Nozir 12A) rules that one may not appoint a legal agent (shaliach) to perform legal actions on his behalf on non-yet-existent objects. A simple application is one cannot appoint a shaliach to set aside challah on his behalf on dough that will be formed from flour that was not yet mixed with water at the time of the appointment. This poses a problem for Jewish-owned bakeries since only the owner or his agent can separate challah and the owner may not want to stay in the bakery all day long as new dough is made, and the owner cannot appoint an agent prior to the dough’s existence.

The way that bakeries solve this issue (Shevus Yitzchok writes that this was ruled by Rav Eliashev zt”l) is based on a ruling of the Mirkeves Hamishne (Gerushin 6, 3) that if one gives his agent an appointment in writing to act on his behalf, it is effective even on not-yet-existent situations. Thus bakery owners appoint in writing a religious worker to set aside challah on their behalf. The reasoning of the Mirkeves Hamishne is that when an appointment is made in writing, the appointment is made continuously, as long as the document exists.

Applied to the pruzbul, even if there is a problem of asking beis din to make a pruzbul on future loans, the fact that the request is made in writing enables beis din to effect a pruzbul on any loans that exist at the time they write the pruzbul, since the request is constantly being made.

It seems that the reason the Chasam Sofer told his student that his pruzbul was effective only on loans that were extended at the time he wrote his letter is that the student did not request that the pruzbul should be effective on future loans. Since the student did not request this, beis din cannot overstep the request and make a pruzbul on later loans. However, if one writing a letter does request that the pruzbul should cover even loans made after writing the letter, beis din can heed his request for loans up to the actual writing of the pruzbul.

One further point that pertains to this Responsa is the identity of the one who wrote the letter. The Chasam Sofer wrote in the pruzbul that the beis din recognized the student’s signature. However, that seems to be superfluous. In general, when people appear before beis din to write a pruzbul on their behalf, beis din does not check the identity of the one requesting the pruzbul. Yet it is effective because in general a person is believed if he claims that he wrote a pruzbul even if he does not present the pruzbul. Therefore, it seems superfluous that they recognized the handwriting. Even if it were necessary to prove the identity of the lender, the one who sent the letter can prove his identity at a later time as we find by marriage that even if the witnesses could not identify the bride at the time of marriage, the marriage is valid if they can determine with certainty her identity afterwards.

In conclusion: One method you can employ is to submit a request in writing to three people, especially if they sit as a beis din, to write a pruzbul on your behalf. It is advisable that you write that you wish that they should write the pruzbul on Erev Rosh Hashana. The pruzbul will cover all your loans up till the time they write your pruzbul.

 

 

 

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