This week’s article focuses on practical questions pertaining to the upcoming mitzva of Shmitas Kesafim and subsequently, the Pruzbul. How can the mitzva be fulfilled despite the Pruzbul? Is there any point in doing so? How can family and friends of an unconscious person assure that his debts remain redeemable? And what about an elderly person who, while usually lucid, is suffering from a bad day on Erev Rosh Hashana and refuses to make out a Pruzbul? What can a person in Eretz Yisroel do if his relative in Los Angeles is sleeping and forgot to write a Pruzbul, and by the time he’ll be available, Rosh Hashana will already have begun? The Pruzbul is effective for some debts while ineffective for others. Which debts remain irredeemable despite writing a Pruzbul? And what can be done if one’s loans are of this sort?
Do most people today own land? What’s the connection between land ownership and the Pruzbul? How do teenagers make a Pruzbul, and does it make a difference if both the borrower and the lender don’t own land? What are the results of owing money to a non-religious Jew who fails to write a Pruzbul? What can be done to circumvent the issue? Of this, and more in the coming article.
Unconscious on Erev Rosh Hashana
Several years ago, there was a well-respected individual who had a few hundred spare dollars in cash which he used to open an interest-free lending gemach. A few days before the end of Shmitta he suffered a stroke. The doctors wanted to keep him seduced until after Rosh Hashana, but he had not yet written a Pruzbul and he couldn’t assign an agent to do so in his place. What could his relatives do to save his money?
This question was presented to both the Chazon Ish and Rav Elyashiv, and interestingly, it garnered different responses. The Chazon Ish’s response was received when Rabbi Elyahu Dushinitzer sent Rav Chaim Kaniyevski to ask his uncle, the Chazon Ish, if the man could be assigned a Pruzbul by an agent who had not been explicitly appointed, under the laws of shlichut (appointing proxies). The Chazon Ish’s opinion was that if he would have been interested in the Pruzbul and glad it was made in his name, doing so is permitted. However, making one for a non-religious fellow who would not be interested in it is impossible (Derech Emuna, Shmitta 9:99).
Rav Elyahsiv (Shevut Yitzchok, Shvi’is 4:3), though, is of the opinion that this mechanism is impossible for the Pruzbul. Instead, he suggest that the man’s relatives present the case to three talmidei chachomim. They can then appoint the ill man’s son his temporary legal guardian, who has the ability to make a Pruzbul for his father’s loans.
Practical Applications:
The above discussion resulted in several possible applications:
1) World-Wide Pruzbul: Rav Moshe Sternbuch (Teshuvos V’hanhagos III 403) discusses the possibility of making out one single Pruzbul for an entire city, or even all Jews anywhere in the world, under the above-mentioned mechanism suggested by the Chazon Ish. He concludes that apparently it isn’t possible because Chazal’s institution of the Pruzbul only applies to one who has his own private Pruzbul on his name, not a generalized sweeping form.
2) Assigning a Pruzbul to unavailable people:
- A usually lucid gentleman is having a bad day on Erev Rosh Hashana and is incommunicado. His son tries reminding him to make his Pruzbul or assign him as his agent, but is getting nowhere. According to the above-noted opinion of the Chazon Ish he should make the Pruzbul through assigning it to his father, while, according to Rav Elyashiv, three talmidei chachomim should be alerted of the situation and appoint the son his father’s legal guardian until he regains his communication abilities. Then, as his legal guardian, he can write the Pruzbul.
- A parent residing in Los Angeles didn’t make a Pruzbul. Erev Rosh Hashana morning he is sleeping, and by the time he wakes it will already be Rosh Hashana in Israel. In this case it is preferrable for his son to rely upon the Chazon Ish’s opinion and not wake his parent.
- A newcomer to Judaism who did yet learn about the Pruzbul but would certainly be glad to have one made for him can also be assigned a Pruzbul in absentia.
Pruzbul – Permit or Obligation
Is making a Pruzbul optional or obligatory? Can one opt to not write one and have his debts cancelled? Is one who never lent anyone money and doesn’t have any funds in a Jewish-owned bank, investment, or fund allowed to choose not to write a Pruzbul?
Writing one is not a must, but is certainly very much recommended. Often, people forget that they lent money, and when they meet the borrowers they suddenly recall the debt. If the Shmita has passed, the debt may not be repaid, and demanding it, even by mistake is a prohibition. Accepting repayment without saying “I let it go” would transgress a positive commandment. A Pruzbul is therefore necessary to prevent any unintended transgressions.
In last week’s article we briefly mentioned an additional method that allows debts to remain redeemable: stating in the presence of two witnesses that all debts are due only after Rosh Hashana. Debts that have not yet reached their due date are not cancelled at the end of the Shmitta and may be collected as usual.
Since there are two methods for preserving loans, which is the preferable method – writing a Pruzbul or postponing repayment dates? Rav Elyashiv (Shevut Yitzchok 5:15) answers that while postponing the due date is a viable method to preserve debts, Chazal, in order to uphold the mitzva, instituted the Pruzbul — the preferable method for reminding ourselves of the mitzva. Therefore, when both options are available, writing a Pruzbul is preferrable, and only where it is impossible should one pursue other possibilities.
Landless Borrowers
Debts taken by people who don’t own land are not affected by the Pruzbul and remain uncollectable. Chazal didn’t institute the Pruzbul for the rare cases of people who don’t own any land from which some of the debt can be collected. On the first glance this seems to be quite common, because there are many a borrower who owns no land. However, in reality, these cases are extremely rare, as will be explained.
Land Against the Debt
What is defined as the borrower’s land that allows the lender to write an effective Pruzbul?
Land, in this case refers to any permanent lodging spot or storage space (even a locker) from which the resident will not be evicted between writing his lender’s Pruzbul and the end of Rosh Hashana, be it purchased, rented, borrowed, or gifted. It need not be worth the debt in order to render the Pruzbul effective, and even if the lender has no land and only the borrower has land, a Pruzbul can be made.
When considering these conditions, apparently, there are not so many who have no land.
While the homeless seem like an obvious match for this criteria, there are others who may fall in this category:
1) The elderly who live with their children or relatives and have no property of their own, whether because they sold it or divided it in their lifetime, or because they never had any.
One who is given use of a room may have property for the purpose of the Pruzbul, but it depends upon the wording used in inviting him – if he is invited “on condition it works out and my wife agrees to the arrangement, and if it doesn’t work out we’ll find another place for you” – the room does not belong to him since he can be evicted from it at any given moment.
2) Unmarried children who were never given a permanent room, or yeshiva boys who can be transferred from their room in the dormitory at any given moment.
3) Young couples still living with their parents. Nowadays, due to the high cost of living in Israel, more and more young couples are forced to continue living at home with their parents. In many cases it is clear that the setup is temporary, and if the arrangement doesn’t work out, the parents may ask the young couple to leave.
4) Institutionalized inmates — while one may have a room or cell, if he can be moved at any given moment and transferred elsewhere, he may be categorized as landless.
Since bank revenue is also invested in real estate, anyone who has a saving’s account, savings fund, or pension essentially owns land and is not considered landless. While in the past, yeshiva boys were the classic example of landless borrowers, today every child in Israel has a savings fund on his name with money he can draw when he reaches adulthood. Therefore, even children today are considered landowners, and a Pruzbul is effective to preserve their debts.
Summary:
The Pruzbul is ineffective for preserving a landless borrower’s debt. In order to be considered landless, one must reside in a space that doesn’t belong to him and from which he can be evicted without prior notice, have no money in a bank account or pension fund, nor have an immovable closet, drawer, or locker. His debts require one of the following solutions to remain collectable, or may be dropped.
Landless Borrower – Solutions
As stated above, these cases are rare, but what happens if someone lent a single friend $100,000 to help him seal a deal, and the borrower makes a bad mistake and lands in jail with all his assets foreclosed. The convicted friend promises to make amends, work hard, and repay his debts as soon as he gets out, but that will only be after Rosh Hashana 5783. Can the lender write a Pruzbul to preserve the debt, or should he simply kiss his money goodbye?
The Shulchan Aruch (CM 67:23) rules that the borrower can be given land from Erev Rosh Hashana until after Rosh Hashanah, even against his will. Then, as a landowner, the lender’s Pruzbul will be effective, and his debts are preserved. The Sma (footnote 44) explains that while generally items cannot be bestowed upon someone without his knowledge if he has no benefit from them, here, since nowadays the mitzva of Shmitas Kesafim is rabbinic, Chazal are lenient.
The Rama, though, adds that giving land is only effective where the borrower is absent and does not object to acquiring the land. If, however, the borrower is present and actively opposes all and any rights to the land, it is ineffective.
Where the borrower actively opposes acquiring rights in the land, or where the lender also has no land (a common scenario among institutionalized people who lend items or money to people in similar situations), the only solution is to postpone the debt’s due date until after Rosh Hashana.
Pruzbul Defiance
Another question concerns debts owed to people who didn’t make a Pruzbul — either because they never learned about it, or because they don’t believe in it. According to the Torah, these debts need not be repaid, and demanding payment is a transgression.
Practically, if required, these debts should preferably be paid before repayment is demanded. Alternatively, the borrower can state in presence of two witnesses that if the debt is released, he promises to make the payments as a gift. Then, if the lender demands his payments, he won’t be transgressing a prohibition but rather demanding what was promised to him.
After Rabbi Uri Zohar learned about Yiddishkeit he realized he had a debt which he had to repay with interest, at direct violation of the prohibition of charging and paying interest. Rabbi Zohar wanted to stop paying the forbidden interest. He discussed it with the lender, but the non-religious lender wouldn’t hear of it and demanded that the debt be repaid along with the interest, threatening to take him to court and sending debt collection agencies after him should he fail to make his payments. Rabbi Zohar presented the case to Rabbi Yaakov Blau, one of the leading authorities on loans, who in turn sent him to Rabbi Yaakov Fischer. Rav Fischer barely listened to the details, and as soon as he heard the date the loan was taken, told him he could go on paying the interest — “The man is a thief and bandit; you can give him whatever he wants, no problem.” Rav Zohar returned to Rav Blau concerned. “How could he have issued a ruling so quickly while you had to sit with me for hours and couldn’t figure it out?” he asked. Rav Blau want to Rav Fischer and asked for an explanation.
” According to his description and the dates involved, it’s clear the friend didn’t make a Pruzbul. Since Shmitta passed already, the debt is cancelled. We are not talking about a loan or interest. If the ‘friend’ now demands money, he is nothing but a thief, so Rabbi Zohar can give him whatever he wants.”
Fulfilling the Mitzva
Can the mitzva of Shmitas Kesafim be performed today despite writing a Pruzbul? Is there any reason to do so?
The mitzva of Shmitas Ksafim depends upon having lent out money, just as the mitzva of Tzitzis depends upon wearing a four cornered garment – while one is not obligated to wear one, one who does, is obligated to thread tzitzis in its corners. But who doesn’t want to earn a mitzva? This explains why most religious men wear a four-cornered garment with tzitzis threaded on its corners, and why we should all take advantage of the opportunity to perform the rare mitzva of Shmitas Kesafim.
Rabbi Chaim Vital points out that the number of bones in the human skeleton coincides with the number of positive commandments, and the number of sinews in the body coincides with the negative ones. Since the physical body has a parallel spiritual body that receives its life and sustenance from the physical performance of the mitzvos, every mitzva performed by the physical body gives life and vitality to its corresponding spiritual limb.
If every mitzva heals and breathes life into a different part of the body, wouldn’t we all want to have a fully living and healthy body, both physically and spiritually? This explains why some are careful to fulfill every mitzva possible, at least once in their lifetime, and for those they can’t — learn the relevant halachos.
While many long to perform this once-in-seven-years mitzva, it could cause significant loss, stress, and possibly – poverty. Therefore, even those who wish to fulfill the mitzva should make out a Pruzbul on Erev Rosh Hashana to allow them to recoup all major loans and prevent possible transgressions. Then, in order to fulfill the mitzva, they should give a friend a small loan. Since the Pruzbul only affects debts that occurred before it was written, this debt is released. If after Rosh Hashana the friend wants to return it, the lender must tell him, “I have released this debt”. Then, if the borrower still wants to return it despite its release he is free to do so, and it doesn’t detract from the mitzva he already performed.
This mitzva is today, according to most authorities, a rare rabbinic mitzva – one only applicable once in seven years. We pray and hope to merit performing it this year as a Torah mandated mitzva, with the coming of Moshiach Tzidkeinu.
